ARMED SERVICES BOARD OF CONTRACT APPEALS
Appeal of --
Weis Builders, Inc.
ASBCA No. 56306
Under Contract No. DACA45-03-D-0006 )
APPEARANCE FOR THE APPELLANT:
Leonard L. Burridge, Esq.
APPEARANCES FOR THE GOVERNMENT:
Thomas H. Gourlay, Jr., Esq.
Engineer Chief Trial Attorney
Thomas J. Tracy, Esq.
Engineer Trial Attorney
U.S. Army Engineer District, Omaha
OPINION BY ADMINISTRATIVE JUDGE TUNKS
ON APPELLANT’S MOTION FOR PARTIAL SUMMARY JUDGMENT AND
GOVERNMENT’S CROSS-MOTION FOR SUMMARY JUDGMENT
This appeal arises from the government’s assessment of $1,294,765 in liquidated
damages in connection with a task order placed against an indefinite delivery, indefinite
quantity contract for the construction of military housing. Weis Builders, Inc. (Weis or
appellant) moves for partial summary judgment, alleging that there are no material facts
in dispute and that the liquidated damages clause in the contract is unenforceable as a
matter of law. The government opposes Weis’ motion and cross-moves for summary
judgment, alleging that there are no disputed issues of material fact and that it is entitled
to $1,294,765 as a matter of law. Weis opposes the government’s motion on the ground
that counsel have agreed to reserve the issue of whether the liquidated damages clause in
the contract was a penalty.
STATEMENT OF FACTS FOR PURPOSES OF THE MOTIONS
1. On 2 January 2003, the Omaha District of the U.S. Army Corps of Engineers
(government) awarded Contract No. DACA45-03-D-0006 (base contract) to Weis to
Replace Family Housing at Minot Air Force Base (AFB), North Dakota (R4, tab 7). The
base contract was an indefinite delivery, indefinite quantity, design/build contract. The
government anticipated awarding approximately $350 million worth of construction
projects under the base contract over a period of ten years using an overlapping, phased
approach. Each task order was expected to be in the range of $35 to $45 million and