GOVT. MISCALCULATED SUBSTANTIAL COMPLETION DATE--AND $9,800 IN LIQUIDATED DAMAGES

Friday, March 01, 2019 1:46 am
 
February 2019 - Volume 41 Number 3
 

Delay — Liquidated Damages

Appeal of: Maruf Sharif Constr. Co., 2019 ASBCA Lexis 20 (January 16, 2019)

A contractor was able to prove that the government incorrectly determined the project completion date to be an extra 49 days past substantial completion—and improperly assessed liquidated damages after that date.

In September 2016, Naval Facilities Engineering Command awarded Maruf Sharif Construction Company (MACEC) a $286,750 design/build contract for the renovation of a naval facility building in Bahrain. The contract included Federal Acquisition Regulation (F.A.R.) clause 52.211-12, which provided that the government could charge liquidated damages (LDs) at $200 for each calendar day of delay until work completion or acceptance. The total construction period—from the task order award date to the stipulated contract completion date of June 10, 2017—was 276 calendar days. The government contended that MACEC completed the project 131 days late and assessed liquidated damages in the amount of $26,200.

MACEC submitted a claim to the contracting officer (CO) requesting a final decision and asserting that the LD assessment failed to take into account 168 days of delay caused by the government itself. In response, the CO recognized 44 days of government-caused delay associated with the project’s design review—a delay that pushed back the project’s notice to proceed (NTP) and established a new completion date of July 25, 2017. The CO reduced the number of assessed days to 85, or $17,[..]

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