By Government Contracts Editorial Staff
The Armed Services Board of Contract Appeals found the contractor was entitled to recover its operating costs and amounts withheld by the government because the government’s decision to require the contractor to provide onsite manning 24 hours per day, 7 days per week, was unreasonable. The dispute arose from a contract to provide base operations services at a water treatment plant. On summary judgment, the parties disputed whether the contract required the contractor to provide 24/7 manning. The contractor argued nothing in the contract required it to provide 24/7 manning at the plant. It pointed out that the government held the same interpretation for the first two and a half years of performance. Also, it argued that two requests for information submitted during the solicitation period and answered by the government supported its position. In addition, the contractor relied on state permit requirements and code provisions cited in the permit.
Zone of Reasonableness. Rejecting the government’s assertion the contract clearly and unambiguously required 24/7 manning, the board concluded the contractor’s interpretation of the manning requirement was reasonable, while the government’s interpretation was not within the “zone of reasonableness.” The board agreed with the contractor that the permit and administrative code did not require 24/7 staffing. Also, in both RFIs, offerors specifically asked if 24/7 staffing was required, but the government did not respond directly. Moreover, the parties’ course of performance showed that for two and a half years, the government had no objection to the contractor’s manning of the treatment plant. Finally, an annex specification was a performance specification that gave the contractor discretion to set its staffing so long as it achieved the performance objectives and standards. (Fluor Federal Solutions, LLC, ASBCA, ¶95,858)
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