Appeal of Facility Defense Consultants, Inc. dba Hanke Constructors, 2017 WL 2962590
The Armed Services Board of Contract Appeals (ASBCA) decided this case. The ASBCA is an impartial forum that deals with contract disputes that arise between government contractors and various federal agencies, including the Department of Defense, the National Aeronautics and Space Administration and the Central Intelligence Agency.
The ASBCA operates primarily under the Contract Disputes Act (41 U.S.C. 7101-7109) and the ASBCA Charter. All ASBCA decisions are made pursuant to procedures outlined in the ASBCA Rules. The rules include instructions for contractors to proceed without the representation of a lawyer as well as procedures for expedited hearings.
The ASBCA also supports the use of Alternative Dispute Resolution (ADR) to resolve any and all disputes. The ASBCA has developed an award-winning approach to ADR, helping parties resolve their disputes effectively and efficiently.
The Department of the Army submitted a request under NAICS code 236220 for “Commercial and Institutional Building Construction.” The request was reserved for service-disabled veteran-owned (SDVO) small businesses.
After evaluating all of the bids, the government awarded contract number W912DQ14D4003 to Facility Defense Consultants, Inc., dba Hanke Constructors (Hanke). The total contract value was $6.4 million.
On August 10, 2016, Hanke submitted a Request for Equitable Adjustment (REA) to the contracting officer, in order to account for shifting costs associated with the contract. After reviewing the REA, the contracting officer denied Hanke’s request.
After receiving the contracting officer’s decision, Hanke protested and requested another review. The contracting officer
rejected this request, issuing a final decision on November 30, 2016. As a result, Hanke appealed to the ASBCA for review.
Analysis The ASBCA considered the arguments from both parties as well as evidence on the record. The government argued that the ASBCA lacks authority to review final decisions concerning REAs, because REAs are not claims. Moreover, after appealing to the ASBCA, Hanke submitted a new claim to the contracting officer for review and a decision.
In light of this information, the ASBCA issued an order to Hanke and the government on June 12, 2017. If neither party objected within 14 days, the ASBCA would dismiss the present appeal. The ASBCA did not receive an objection from either party within 14 days.
As a result, the ASBCA dismissed Hanke’s appeal without prejudice on June 28, 2017.
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