Laguna Construction Company, Inc. ( 2015 )

ARMED SERVICES BOARD OF CONTRACT APPEALS
Appeal of-- )
)
Laguna Construction Company, Inc. ) ASBCA No. 59108)
Under Contract No. FA8903-06-D-85 l 5 )
APPEARANCE FOR THE APPELLANT: Michael F. Menicucci, Esq.
Calvert & Menicucci
Albuquerque, NM
APPEARANCES FOR THE GOVERNMENT: Lt Col James H. Kennedy III, USAF
Air Force Chief Trial Attorney
Maj Michael G. King, USAF
Capt Adam N. Olsen, USAF
Trial Attorneys
OPINION BY ADMINISTRATIVE JUDGE DELMAN ON CROSS-MOTIONS
FOR PARTIAL SUMMARY JUDGMENT
The parties have filed cross-motions for partial summary judgment in this
appeal. We have jurisdiction under the Contract Disputes Act, 41 U.S.C.
§§ 7101-7109.
This appeal involves the government's revocation of acceptance of the contract
work - the construction of a taxiway at Randolph Air Force Base, Texas - due to
pavement cracking in the taxiway (Failure I), and also involves the damages flowing to
the parties resulting from the re-work, including damages arising from pavement
cracking in the work that was re-performed (Failure II). Our review of the record
reveals a number of disputed material facts, including, but not limited to the following:
1. The cause of taxiway pavement cracking in Failure I;
2. The scope of Failure I, and whether the government's direction to appellant to
re-perform all the work was supported by the failures observed and the contract;
3. The cause of taxiway pavement cracking in Failure II.
It is well settled that in order to obtain summary judgment a party must show
that there are no material factual disputes of record, and it is entitled to judgment as a
matter oflaw. Mingus Constructors, Inc. v. United States, 812 F.2d 1387, 1390
(Fed. Cir. 1987). Neither party has met its burden here.
CONCLUSION
The parties' cross-motions for partial summary judgment are denied.
Dated: 17 March 2015
Administrative Judge
Armed Services Board
of Contract Appeals
I concur I concur
~~
s~ER
/ MARK N. RICHARD SHACKLEFORD
Administrative Judge Administrative Judge
Acting Chairman Vice Chairman
Armed Services Board Armed Services Board
of Contract Appeals of Contract Appeals
I certify that the foregoing is a true copy of the Opinion and Decision of the
Armed Services Board of Contract Appeals in ASBCA No. 59108, Appeal of Laguna
Construction Company, Inc., rendered in conformance with the Board's Charter.
Dated:
JEFFREY D. GARDIN
Recorder, Armed Services
Board of Contract Appeals
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