C.R. Pittman Construction Co., Inc. ( 2015 )

ARMED SERVICES BOARD OF CONTRACT APPEALS
Appeals of -- )
)
C.R. Pittman Construction Co., Inc. ) ASBCA Nos. 57387, 57388, 57688
)
Under Contract No. DACW29-00-C-0075 )
APPEARANCES FOR THE APPELLANT: Gerald A. Melchiode, Esq.
Jeffery B. Struckhoff, Esq.
Galloway, Johnson, Tompkins,
Burr & Smith
New Orleans, LA
APPEARANCES FOR THE GOVERNMENT: Thomas H. Gourlay, Jr., Esq.
Engineer Chief Trial Attorney
William G. Meiners, Esq.
Engineer Trial Attorney
U.S. Army Engineer District, New Orleans
OPINION BY ADMINISTRATIVE JUDGE WILSON
These appeals originate from claims filed under a construction contract for
improvements to the Soniat Canal in Jefferson Parish, Louisiana. 1 The contract
required, inter alia, C.R. Pittman Construction Co., Inc. (appellant or Pittman) to
increase the drainage capacity of the existing drainage canal by lining it with concrete
and increasing the cross-sectional area by excavation. Appellant filed three claims
alleging the following: (1) a Type II differing site condition regarding removal of
sheet piling (ASBCA No. 57387); (2) delays due to flood events (ASBCA No. 57388);
and (3) breach of contract by the Corps due to the deletion of gravity sewer line work
from the contract (ASBCA No. 57688). The Board has jurisdiction of the appeals
under the Contract Disputes Act of 1978, 41 U.S.C. §§ 7101-7109. The Board held a
hearing in New Orleans, Louisiana, on the above-captioned appeals. The parties have
submitted post-hearing and reply briefs. Only entitlement is before the Board for
decision.
1
The Board previously issued a decision under the same contract denying entitlement
to additional delay costs associated with timber mats. See C.R. Pittman Constr.
Co., ASBCA No. 54901, 08-1BCA~33,777. Familiarity with that decision is
presumed.
FINDINGS OF FACT
A. The Contract
1. On 25 July 2000, the United States Army Corps of Engineers (government
or Corps) awarded Contract No. DACW29-00-C-0075 to appellant in the amount of
$14,426,258 for the "Southeast Louisiana Urban Flood Control Project, Improvements
to Soniat Canal" in Jefferson Parish, Louisiana (R4, vol. II, tab D). The fixed-price
contract required appellant to increase the drainage capacity of the existing drainage
canal by lining the canal with concrete and increasing the canal cross-sectional area by
shallow excavation. Upon completion of the project, the canal would convey storm
runoff from Metairie, Louisiana, towards a pumping station in Jefferson Parrish and
ultimately into Lake Pontchartrain. (ASBCA No. 57387 (57387), compl. and answer
ii 8; tr. 1/28) The contract further required completion of the work within 900 calendar
days of the receipt of "Notice to Proceed," which was issued and received on 28 July
2000 (57387, compl. ii 9; supp. R4, tab 3; R4, vol. II, tab D). Thus the contract
completion date was 14 January 2003.
2. The contract contained the following standard clauses: Federal Acquisition
Regulation (FAR) 52.233-1, DISPUTES (DEC 1998); FAR 52.243-4, CHANGES (AUG
1987); Defense Federal Acquisition Regulation Supplement (DF ARS) 252.243-7001,
PRICING OF CONTRACT MODIFICATIONS (DEC 1991 ); and DF ARS 252.243-7002,
REQUESTS FOR EQUITABLE ADJUSTMENT (MAR 1998) (R4, vol. II, tab D).
3. The contract contained the standard FAR 52.232-5, PAYMENTS UNDER
FIXED-PRICE CONSTRUCTION CONTRACTS (MA y 1997) clause, which stated in relevant
part:
(1) The Contractor's request for progress payments shall
include the following substantiation:
(i) An itemization of the amounts requested, related to the
various elements of work required by the contract covered
by the payment requested.
(2) In the preparation of estimates, the Contracting Officer
may authorize material delivered on the site and
preparatory work done to be taken into consideration ....
2
(f) Title, liability and reservation of rights. All material
and work covered by progress payments made shall, at the
time of payment, become the sole property of the
Government. ...
(R4, vol. II, tab D at 58-60) The contract also contained FAR 52.236-2, DIFFERING
SITE CONDITIONS (APR 1984) which reads:
(a) The Contractor shall promptly, and before the
conditions are disturbed, give a written notice to the
Contracting Officer of ( 1) subsurface or latent physical
conditions at the site which differ materially from those
indicated in this contract, or (2) unknown physical
conditions at the site, of an unusual nature, which differ
materially from those ordinarily encountered and generally
recognized as inhering in work of the character provided
for in the contract.
(b) The Contracting Officer shall investigate the site
conditions promptly after receiving the notice. If the
conditions do materially so differ and cause an increase or
decrease in the Contractor's cost of, or the time required
for, performing any part of the work under this contract,
whether or not changed as a result of the conditions, an
equitable adjustment shall be made under this clause and
the contract modified in writing accordingly.
(Id. at 73)
4. Additionally, the contract contained the following special provision in
pertinent part:
52.231-5000, EQUIPMENT OWNERSHIP AND OPERA TING
EXPENSE SCHEDULE (MAR 1995)-- EFARS
(b) Allowable cost for construction and marine plant and
equipment in sound workable condition owned or
controlled and furnished by a contractor or subcontractor at
any tier shall be based on actual cost data for each piece of
equipment or groups of similar serial and series for which
the Government can determine both ownership and
operating costs from the contractor's accounting records.
3
When both ownership and operating costs cannot be
determined ... costs for that equipment shall be based upon
the applicable provisions of EP 1110-1-8, Construction
Equipment Ownership and Operating Expense Schedule,
Region III.
(R4, vol. II, tab D at 58)
B. Additional Findings of Fact Pertaining to ASBCA No. 57387 Type II Differing Site
Condition (Sheet Piling) Claim
5. The contract also contained the following provision:
SECTION 02252 -TEMPORARY RETAINING
STRUCTURES
PART 1 GENERAL
1.1 SCOPE
This work shall consist of designing, furnishing,
installing, maintaining and subsequently removing all
temporary retaining structures required to complete this
project. The Contractor shall be solely responsible for
the design, layout, construction, maintenance and
subsequent removal and disposal of all elements of the
temporary retaining structures.
1.2 MEASUREMENT AND PAYMENT
No measurement will be made for work specified in this
section. Payment will be made at the contract lump sum
price for "Temporary Retaining Structures". Price and
payment shall constitute full compensation for
furnishing all plant, labor, materials, and equipment;
designing, furnishing, installing, maintaining, and
removing the temporary retaining structures, backfilling
voids, and all other work incidental thereto.
4
1.4.2 Elevations
The retaining structures shall have sufficient height to
retain the soil between them. The minimum tip
elevation shall be (-) 52 feet C.D.
PART3 EXECUTION
3 .2 REMOVAL OF MATERIAL
3.2.1 Removal Criteria
... All Contractor-furnished temporary retaining
structures shall be removed from the site of work upon
completion of work.
3.2.2 Safety
The removal of the temporary retaining structures shall
be accomplished in a manner not injurious to the
properties adjacent to and in the proximity of the project
excavations.
(R4, vol. II, tab D at 232-33, 235) Additionally, Section 02252 was amended (via
Amendment No. 0003) during the solicitation phase of the procurement to add the
following language: "Any and all costs for retaining structures required to remain in
place in the vicinity of the transmission towers ... shall be included in the contract lump
sum price for 'Temporary Retaining Structures"' (id. at 385).
6. The contract gave appellant the option to perform the work from an elevated
work platform or on a bank adjacent to the canal where available. Appellant chose to
build an elevated platform in order to construct the Temporary Retaining Structure
(TRS) required by Item 0008 of the contract. (Tr. 11153, 2116-17) Item 0008 of the
bidding schedule called for appellant to provide the TRS for a total price of $4,575,000
(R4, vol. II, tab D at 3). The purpose of the TRS was to retain the earth on each side
of the canal to allow for excavation and the placement of concrete (tr. 1129).
7. On 14 November 2000, appellant submitted its TRS design to the
government for approval. The submission provided in part:
5
Overview:
Our temporary retaining structure for use in the
construction of the concrete flume of the Soni at Canal
consist of utilization of an Internally Braced earth retaining
structure system. Our system consist [sic] of utilization of
a steel sheetpiling wall line with walers and
struts ... utilizing the AZ-18 rd.04" Arbed Steel Sheetpiling
at 70 ft. long as specified via the project plans ....
The internally braced components will be a W24 and W36
fabricated waler beams and 16 inch and 24 inch diameter
pipe strut members ....
Submittals:
Design:
Design calculations have been prepared utilizing the design
procedures, loads, factors of safety, etc as detailed via Section
02252 of the contract documents. The earth pressure
results ... have been developed by our geotechnical consultant,
Mr. Mohammad Tavassoli Ph.D .... while, the structural
design components have been done by our firm's Engineers.
Steel Sheetpiling Installation & Removal:
Once the earth retaining structure is not necessary, the
temporary sheetpiling not required to remain in the ground
will be extracted.... Once pulled the sheetpiling will be
stacked and then loaded on to truck[ s] to be remove[ d]
from or transported to another location on the project site.
(R4, vol. 1, tab D at 2-3) Steel sheet pilings are long structural sections with a vertical
interlocking system that creates a continuous wall. The walls are most often used to
6
retain either soil or water. (Supp. R4, tab 15) The sheet piles are placed in the ground
by a vibrating hammer, which drives the piling into the soil (tr. 1/46-47). Permanent
sheet piles remain in the ground and serve as permanent retaining structures.
Temporary sheet piles are designed to provide safe access for construction, and are
then removed. (Id.) The record reflects that appellant used 70 ft. long AZ-18 sheet
pilings as set forth in the TRS design submission (R4, vol. I, tab D).
8. The record further demonstrates that TRS work was performed and appellant
billed the government for that work as of 7 December 2000 and 12 January 2001 (supp.
R4, tabs 9, 10). By letter dated 21 February 2002, appellant notified the Corps that it
was experiencing difficulties extracting the sheet piling from the ground on the project.
Appellant stated:
We have try [sic] different vibratory hammers and have try
[sic] to change the rpm's so that it might decrease the
vibration readings ....
Since the U.S. Corps of Engineers provided the length
criteria that these sheetpiling were to be, could you please
advise as to our next step in removing the sheetpiling. We
did not have figured in our bid price to leave any
sheetpiling in the ground except what was to remain on the
east side as shown on the contract plans.
(R4, vol. I, tab E)
9. The Corps responded, by letter dated 11 March 2002 advising as follows:
The contract language regarding this subject is clear-
the minimum tip elevation of the temporary sheetpiling
and the criteria for maximum allowable vibrations during
driving or pulling are clearly stated. The methods you use
for sheetpile installation and removal shall comply with
these vibration requirements. You may, however, elect to
leave sheetpile in place instead of pulling them, provided
the remaining sheetpile are cut off a minimum of 2 feet
below finished grade and provided there is no additional
cost to the Government.
(R4, vol. I, tab F)
10. On 28 May 2002, appellant sent an inquiry to the CO requesting guidance
on the specifics as to the sheet piling to be left in the ground (R4, vol. I, tab G).
7
Further, by letter dated 4 August 2002, appellant replied to the Corps' 11 March 2002
correspondence indicating that it disagreed with their position. Appellant stated:
As you are well aware, we have been frugally trying to
remove the sheetpiling so that these materials can be
moved to be utilize [sic] in our Phase 2 of construction.
Due to circumstances beyond our control we have not been
able to extract some of the sheetpiling from out of the
ground.
There are seventy-five sheetpiling that had to be left in the
ground during our Phase I of construction (Monoliths 2
thru 19). These sheetpiling do not include the sheetpiling
that were left in the ground next to the Entergy
transmission tower on the eastside, nor the sheetpiling that
are to remain in front of the two houses on the westside per
the two modifications (CIN-13 and CIN-33).
In this breakdown we have included extended overhead for
21 days and request a contract time extension of 45 days
for delays and the time it will take to procure the materials.
(R4, vol. I, tab Hat 1-2) Appellant also invoked the Differing Site Conditions clause
and included a cost proposal in the amount of $396,404.18. The proposal included
costs associated with the following: (1) repairs to a crane which was allegedly
damaged due to the excessive vibrations expended to unsuccessfully extract the sheet
piling from the ground; (2) labor expended to remove the sheet piling; (3) replacement
costs for the 75 sheet piles; ( 4) front office overhead; and (5) overhead, profit, and
bond costs. (R4, vol. I, tab H) The record contains a drawing that demonstrates where
the sheet piling was left in place along the east and west sides of the canal starting with
Monolith 8 through Monolith 19 (R4, vol. I, tab Hat 3; supp. R4, tab 29; tr. 1153).
11. By letter dated 23 August 2002, the Corps responded to appellant's earlier
28 May 2002 inquiry stating: "The decision on where sheet piling is to remain in place
is made on a case-by-case basis after considering all factors related to the removal of the
sheeting" (R4, vol. I, tab I). The record shows that the parties went back and forth over
several months about what specific "factors" should be taken into account when
deciding to leave the sheet pilings in place (R4, vol. I, tabs J, K, L).
12. By letter dated 15 November 2002, the Corps transmitted unilateral
Modification No. P00033, which directed appellant to leave portions of the TRS sheet
pilings in place at various locations along the west side of the Soniat Canal. The
8
modification, which did not include any change to the contract price, stated "Payment
for work required by this change will be directed by a separate formal modification
which will contain an agreed upon equitable adjustment." (Supp. R4, tab 26 at 2-3)
13. On 15 January 2003, appellant filed a claim in the amount of$396,404.18
(app. supp. R4, vol. I, tab 13). The claim included the attachment with the cost
breakdown as previously provided with the 4 August 2002 letter (tr. 1171).
14. By letter dated 8 April 2003, appellant advised the Corps that during
Phase 2 construction it had exhausted all of its resources on trying to extract sheet
pilings still embedded in the soil and that it was "due to circumstances beyond its
control." Once it documented all of the sheet piles it was unable to remove, appellant
advised the Corps that it would be filing a claim for the costs for the labor and
equipment associated with the attempted removal and the materials left in the ground.
(R4, vol. I, tab M)
15. The Corps responded, by letter dated 21 April 2003, requesting the
specifics of what the Corps interpreted as notice of a differing site condition so that it
could investigate and respond accordingly (R4, vol. I, tab N).
16. By letter dated 3 November 2003, appellant notified the Corps with regard
to the sheet piling issue the following information:
The Differing Site Condition that we have encountered
falls into the category of a Type II [Differing] Site
Condition ....
We believe that what we encountered in the removal
process differs materially from the contract and what we
reasonably expected in the development of our bid on this
project. ...
(R4, vol. I, tab 0 at 1-2)
17. The record shows that the Corps conducted a site investigation on 16 December
2003. The Corps' geotechnical engineer who visited the site, Mr. Larry Dressler, opined to
other Corps employees that appellant should drive the piles in deeper in order to break the
adhesion, and then extract them. (R4, vol. I, tab P) There is no evidence that this
information was passed on to appellant until 23 February 2004, when the Corps wrote a
letter to appellant advising that appellant drive the piles deeper in order to break the seal.
Further, the Corps requested that appellant specifically define the subsurface or hidden
condition so that it could investigate further. (R4, vol. I, tab Q). However, appellant had
9
cut the sheet piles that it could not remove from the soil and had moved the TRS further
down the canal to continue work (tr. 2/70-71 ).
18. The record shows that the parties continued to negotiate several
outstanding modifications and claims. By letter dated 2 November 2009, appellant
requested that the parties meet to negotiate the unresolved claims; which consisted of
14 items, including the sheet piling claim ($396,404.18), the flood events claim
($1,422,728.88), and the deletion/modification of the gravity sewer line ($516,667.77).
Appellant also submitted a claim certification for all unresolved claims over $100,000.
(App. supp. R4, vol. II, tab 27)
19. The parties met on 9 November 2009 to negotiate the above-mentioned
claims. The outcome of that negotiation was memorialized in the Corps' letter to
appellant dated 23 November 2009 which listed the government's position on each of
the 14 items (app. supp. R4, vol. II, tab 28). The Corps stated: "At the end of the
meeting it was requested that a Contracting Officer's Final Decision be provided for
those items not agreed to. The Government stated that it would provide a letter within
60 days as to when a Contracting Officer's Final Decision [COFD] would be given."
(Id. at 1092)
20. As the contracting officer did not issue a COFD on the sheet piling claim,
appellant filed a notice of appeal with the Board on a "deemed denial" basis, which
was received on 29 September 2010 and was docketed as ASBCA No. 57387.
21. James Pittman, appellant's vice president, testified that he participated in the
preparation of the offer which resulted in the contract at issue in the above-captioned
appeals (tr. 1/27-28). He indicated that appellant reviewed the contract documents,
personally visited the site, and saw no indications that they would not be able to remove
the temporary sheet pilings from the ground (tr. 1/72). Mr. Pittman further testified that
there were several instances during Phases 1 and 2 that the Corps paid appellant to leave
the sheet pilings in the ground "for convenience," as "[i]t had nothing to do with
whether we could pull them or not pull them" (tr. 1/73-74). The record shows that
several modifications for leaving sheet piles in the ground were issued allowing
compensation (app. supp. R4, vol. II, tab 36).
The Government's Expert:
22. The Corps offered Richard J. Varuso, Ph.D., as an expert in the field of
geotechnical engineering. At the time of the hearing, Dr. Varuso was the Deputy
Chief of the Geotechnical Branch of the Corps (tr. 2/140). After voir dire of his
qualifications, education, and experience with other projects involving the use of sheet
pilings, Dr. Varuso was accepted without objection as an expert in geotechnical
engineering (tr. 2/144).
10
23. Dr. Varuso opined:
The foundation conditions for this project are very typical
of southeast Louisiana and the majority of the SELA
[Southeast Louisiana] projects. The soils encountered
within the borings (Son7-U through Sonl2-U) consist of
fill and recent Holocene Age deposits underlain by older
Pleistocene deposits. Holocene Age soils consist of inland
swamp/marsh, interdistributary, and prodelta clayey
deposits to approximate El. -43.5 CD. Pleistocene Age
soils (clayey, silty, and sandy deposits) are present from
approximate El. -43 .5 CD to the various boring termination
depths ....
The Contractor had to employ various methods to pull
several of the sheet pile sections installed for the contract's
TRSs. This is not uncommon nor should it have been
unexpected by the Contractor given their experience as a
contractor on similar USACE projects in southeast
Louisiana and their anticipated understanding of the effects
of pile set-up ....
The likelihood of differing site conditions, either Type I or
Type II, in the foundation conditions for this contract
causing the inability to remove the sheet piles is
improbable.
(Supp. R4, tab 35) Dr. Varuso testified that it is not unusual to experience difficulties
in removing sheet pilings, and he has seen contractors on other projects in the area
"employ various methods that have been discussed here to remove those sheets"
(tr. 21153 ). Moreover, he stated that the contractor "experienced difficulty in
removing several sections of sheet piles in this contract, not just the 7 5 that were left in
place" (supp. R4, tab 35 at 2). With regard to the soil conditions at the site, he further
testified:
Well, we had a decent number of borings on this
contract on both sides of the canal, and then spaced evenly
down the canal. And those borings are all very uniform, as
much as we typically see in Southeast Louisiana.
11
Again, very similar soil properties, soil types
associated with the borings that were located within this
job, showing very consistent foundation deposits along
Soniat Canal between West Napoleon and Veterans.
(Tr. 2/156) Thus, based on the way the soils are deposited in the area, Dr. Varuso
concluded that it is highly unlikely that variations in the soil would exist in 20-foot
increments (tr. 2/159). He reached these conclusions after reviewing, inter alia, the
geotechnical report dated 22 December 1997 by Eustis Engineering Company, Inc. (Eustis
Report), which contained analysis of the soil in the Soniat Canal where the work was to be
done (supp. R4, tab 36). The Eustis Report soil borings from the site were included in the
contract documents (R4, vol. II, tab E). Based on the foregoing, coupled with the Corps'
credible expert testimony, we find that the soils in the project area were typical for the
Southeast Louisiana region.
Appellant's Expert:
24. Appellant offered Jerry Householder, Ph.D., as an expert in geotechnical
engineering and construction management. Dr. Householder testified as to his
experience as a professor of civil engineering at several universities, his experience
with construction projects that involved driving and extracting temporary sheet piles,
as well as his several publications on construction, estimating and cost control
(tr. 1/200-02). Dr. Householder was accepted as an expert witness in geotechnical
engineering and construction management without objection (id. at 205).
25. Dr. Householder's written opinion states, that "[i]n the New Orleans area
when sheet piling is to be extracted, it is common to be able to pull virtually all, if not
all, of the piling" from the ground. He concludes that if the sheets could not be pulled
"it is due to a subsurface soil condition that differs materially from that normally
encountered and usually expected" (app. supp. R4, vol. II, tab 30). He examined the
soil borings from the Eustis Report with regard to soil cohesion and testified that the
cohesive qualities may vary as you move down the canal (tr. 11211-12). This
testimony was not credible as Dr. Householder reached a conclusion based on his
speculation that because the sheet piles could not be removed by normal means, there
must be a differing site condition without indicating what the specific condition was.
C. Findings ofFact Pertaining to ASBCA No. 57388 (Flood Events Claim)
26. The contract also contained the following provisions:
SECTION 01100 - GENERAL PROVISIONS
12
2. DAMAGE TO WORK
The responsibility for damage to any part of the
permanent work shall be as set forth in the Contract
Clauses .... However, if, in the judgment of the
Contracting Officer, any part of the permanent work
performed by the Contractor is damaged by flood,
earthquake, hurricane, or tornado which damage is not
due to the failure of the Contractor to take reasonable
precautions or to exercise sound engineering and
construction practices in the conduct of the work, the
Contractor shall make the repairs as ordered by the
Contracting Officer and full compensation for such
repairs will be made at the applicable contract unit
price or lump sum prices as fixed and established in the
contract. If, in the opinion of the Contracting Officer,
there are no contract unit or lump sum prices applicable
to any part of such work, an equitable adjustment
pursuant to the Contract Clause entitled "CHANGES"
will be made as full compensation for the repairs of that
part of the permanent work. Any costs associated with
flooding of dewatered areas as directed by the
Contracting Officer will be paid for by an equitable
adjustment pursuant to the contract clause entitled
"Changes".
(R4, vol. II, tab D at 110-11)
SECTION 02242 - DEWATERING
PART 3 EXECUTION
3.1 OPERATION
The Contractor shall perform dewatering and maintain
the work areas in a dry condition as long as is necessary
for the work under this contract .... In the event that
flooding is deemed necessary by the Contracting
Officer, the protected area shall be flooded in
accordance with the sequence of flooding proposed by
the Contractor and approved by the Contracting
Officer. . . . If flooding is directed by the Contracting
13
Officer, the Contractor will be compensated for
damages in accordance with the applicable
requirements of the General Provision entitled
"DAMAGES [sic] TO WORK", and the Contract
Clause entitled "CHANGES" ....
3.4 TEMPORARY EARTHEN DAMS.
In order to facilitate construction, temporary earthen
dams will be allowed in order to maintain dry working
conditions. Temporary dams constructed of wood or
steel sheeting will not be allowed.
(Id. at 224, 228)
27. The term "flood event" is used to describe when the site is flooded either
by excessive rainfall or when the CO directs the contractor to flood the work site to
allow rainwater to flow through the canal (tr. 1120). Several contract modifications
(A00009 - A00022, but excluding AOOO 19) were bilaterally executed in order to
compensate appellant for "standby costs and repairs" for 109 flood events (supp. R4,
tab 23). These modifications included payment for standby costs associated with the
TRS and the elevated work platform, including sheet piling and timber mats. 2
Commencing with Modification No. P00023, the parties reached an impasse with
regard to delay costs associated with the TRS and associated items. Accordingly, the
government began issuing modifications that specifically excluded the following:
"time extension costs associated with the contractor's sheetpile cofferdam, bracing and
bridging materials, timber mats, steel forms, and pontoons which are currently in
dispute and will be resolved by separate action" (R4, vol. II, tab C). This was based
on the Corps' position that appellant was not incurring any standby costs on materials
(which included the separate items that made up the TRS - "sheetpile, timber mats,
steel forms, pontoons, bracing materials, and bridge materials") (R4, vol. I, tab U at 4).
28. Between 15 January 2003 and 14 July 2004, appellant submitted several
claims totaling $1,422, 728 for costs associated with flood events, each of which
contained the following language: "The costs that are being requested reimbursed are
required to compensate our firm for the extended usage of these items, just as a rental
rate would be applicable if these items were obtained on a rental basis from an entity
in the marketplace" (R4, vol. I, appx. at 3,passim). By letter dated 19 February 2004,
the Corps provided the following to Pittman:
2
As stated in footnote 1, the timber mat appeal was denied by the Board wherein we
held that the Corps had fully compensated appellant for the delays associated
with flood events.
14
The purpose of this correspondence is to address the
outstanding issue arising from the items of costs excepted
from settlement of Modifications P00023 ... and all
subsequent modifications that refer back to this one.
Specifically, you requested compensation for sheetpile,
fabricated work platform, and other items as a result of
these materials remaining on the job longer as a result of
the changes.
To date, you have failed to demonstrate that you
have incurred any additional cost due solely to these
materials remaining on the job longer.... Your
representation that owned sheetpile should be compensated
for at current market rental rates, or that interest is due on
the investment based on the value of the materials are not
actually incurred costs.
(R4, vol. I, tab Z) After the Board denied the timber mat claim, appellant revised its
claims to exclude the timber mats on 18 May 2010 to the amount of$927,204.45
(ASBCA No. 57388, compl., ex. 4).
29. In that revised claim, appellant also included an opinion by
Dr. Householder, who concluded that the items at issue should be treated as support
equipment and that the method of determining the delay costs is to use either the rental
value of the items or one of the recognized formulas to determine delay costs (app.
supp. R4, vol. II, tab 33, ex. B).
30. The CO failed to issue a final decision on the claims and appellant filed an
appeal to the Board from a deemed denial of the claim. It was received on
29 September 2010 and was docketed as ASBCA No. 57388.
D. Findings of Fact Pertaining to ASBCA No. 57688 (Gravity Sewer Claim)
31. Under Section 02531 of the contract, appellant was required to relocate the
existing gravity sewer line and manholes. Payment for the work was to be based on
"completed work performed in accordance with the drawings, specifications, and the
contract payment schedules." (R4, vol. II, tab D at 274)
32. The contract also stated in pertinent part:
17. UTILITIES AND IMPROVEMENTS
a. All known utilities within the limits of the
work, such as pipes, communication lines, power
15
lines, etc., that would interfere with construction
work shall be removed, modified or relocated by the
appropriate utility at no cost to the Contractor
unless otherwise noted in the plans and/or
specifications.
(R4, vol. II, tab D at 124)
33. By letter dated 27 January 2003, the Corps told appellant the following
with regard to an earlier meeting between the parties:
As discussed at the meeting, it appears that the installation
of the 30-inch drainline will conflict in elevation with the
gravity and force main sewer lines, however this cannot be
determined until some exploratory work on your part is
performed. As stated in the general notes section of the
contract drawings, "Location of existing utilities indicated
on the plan sheets are for informational purposes only and
are based, in part, on information provided by the
respective utility companies. It is the Contractor's
responsibility to verify all existing utility locations prior to
construction." Upon receipt of this information, we will
provide further direction if necessary for the installation of
the drainline.
(Agency supp. R4, tab 8) 3
34. By letter dated 20 October 2004, appellant requested approval to use a
trench box for the installation of the gravity sewer line and manholes, as the usage of
timber trench system shown on the drawings may not be the best application for the
work (agency supp. R4, tab 9). The Corps responded, by letter dated 17 December
2004, advising that it generally had no objection to the concept of using a trench box.
However, the Corps added the following:
Prior to purchasing the trench box, we ask that you submit
details of the trench box and a pipe installation plan ... for
our information. In addition, prior to receiving approval
3
The Corps filed a separate Rule 4 supplement entitled "Agency Supplement to
Rule 4 File for ASBCA No. 57688 Tabs 1-33." For ease of reference and to
avoid confusion with the previous supplemental Rule 4 filing in ASBCA
Nos. 57387 and 57388 (which contain several documents germane to this
appeal), we will reference this supplement as "Agency supp. R4."
16
for this change, we ask that you provide the difference in
cost between the wood and trench box shoring system.
(Agency supp. R4, tab 10)
35. By letter dated 15 February 2005, appellant resubmitted the 20 October
2004 request as a "Value Engineering [Change] Proposal" (VECP) (supp. R4, tab 18).
36. Appellant advised the Corps, by letter dated 26 April 2005, that it could not
begin construction of the gravity force sewer main until several issues were resolved;
including, inter alia, the drawings indicate that "the existing sewer line is about two
feet lower than the new sewer line is shown to be installed at" and the requirement for
a new sewer line where the existing one is working fine (agency supp. R4, tab 14 at 2).
37. The Corps unilaterally modified the contract via Modification No. AOOl 14
(Change Order-011 Sewer Manhole Changes), dated 12 May 2005, to have the new
sewer line match the elevations of the existing sewer line. Appellant was directed to
immediately proceed with these changes and "[p]ayment for work required by this
change will be directed by a separate formal modification which will contain an agreed
upon equitable adjustment." (Agency supp. R4, tab 15)
38. Appellant responded, by letter dated 20 May 2005, advising the Corps that
it intended to perform an as-built site survey to obtain the exact elevations and provide
it to the Corps "prior to actually proceeding to lay the utility referenced." Appellant
further added that the costs associated with this survey will be included as part of the
subsequent request for payment resulting from the aforementioned change. (Agency
supp. R4, tab 16).
39. By letter dated 17 June 2005, the Corps replied to appellant stating: "I
have no objection to you providing as-built elevations of the sewer line provided that
you do not create additional work beyond what is required to install the new sewer line
and manholes at their existing elevations" (agency supp. R4, tab 17).
40. On 26 January 2006, the VECP was incorporated into the contract under
bilateral Modification No. P00107 and resulted in a decrease to the contract price by
$58,712.82 (supp. R4, tab 19).
41. On 6 March 2006, the Corps, in response to a meeting with appellant at the
job site on 22 February 2006 where appellant expressed concerns with the gravity
sewer installation and the possibility of a differing site condition, stated the following:
I believe the remaining work is essentially the same
work as was bid. I understand there may be some changes
that have been made such as house connections made to
17
the sewer after the project started, etc. We are also aware
that the sewer line will pass beneath a conflict box141 and
that some manholes have been removed. We will address
these issues as they are verified during construction of the
sewer. Some changes to the work were directed by
modification AOOl 14.
You should proceed with the work as required in the
contract. If you encounter conditions such as those cited
above or other conditions that meet the requirements of
Contract Clause 52.236-2, Differing Site Conditions, you
should notify me in writing as required by this clause.
(Agency supp. R4, tab 18)
42. Appellant responded, by letter dated 14 March 2006, reiterating that it had
determined that there are differing site conditions present with respect to both the
vertical and horizontal location of the gravity sewer line and the sewer force main, and
alerted the Corps that the government "must now take action to address this problem
prior to [appellant] moving forward and proceeding with this work" (agency supp. R4,
tab 19).
43. The Corps issued a "SHOW CAUSE" notice to appellant dated 3 April
2006, wherein it informed appellant that it had not established a differing site
condition because it failed to provide any specific evidence that "the alignment of the
gravity sewer line and the sewer force main differ[ ed] substantially from that presented
in the plans so as to materially alter the character of the work required." Accordingly,
the Corps gave appellant ten days to provide its plans and schedule to complete all of
the work required under the contract, which included the replacement of the gravity
sewer line. The Corps calculated 31 January 2006 as the contract completion date,
which included time extensions for weather and pending modifications. However, the
Corps gave appellant until 1 June 2006 to complete all work. The Corps added: "If
you fail to provide your schedule to complete the work ... your right to proceed will be
terminated." (Agency supp. R4, tab 20)
44. By letter dated 7 April 2006, appellant notified the Corps that it had
completed work on the project and requested a final inspection be performed as soon
as possible (agency supp. R4, tab 21). Appellant later requested, by letter date
20 April 2006, a pre-final inspection and that the Corps generate a punch list of items
4
A "conflict box" is "typically a box that you would install at a location where you
have multiple utilities, and you may want to change direction of one of the
utilities" (tr. 2/108).
18
that remained to be completed, asserting that the work was "99 % complete" (agency
supp. R4, tab 22).
45. Meanwhile, the record reflects that appellant contacted the Jefferson Parish
Department of Sewage by letter dated 5 May 2006 and requested that they formulate a
plan to: (a) remove, modify or relocate the existing 8" sewer force main (as appellant
could not do the work itself pursuant to the project plans and its contract
specifications); and (b) replace four of the originally constructed manholes along the
existing 12" gravity sewer line (because appellant had originally planned to utilize all
of the manholes for the gravity sewer work under the contract) (agency supp. R4,
tab 24).
46. On 2 June 2006, the Corps issued a "Second Show Cause" notice, which
gave appellant another ten days to present a plan and schedule to get the remaining
work completed. The Corps added: "If you miss this deadline without a suitable
response, I will have to conclude that you are unable or unwilling to pursue the
remaining work and I will take appropriate action." (Agency supp. R4, tab 25)
47. By letter dated 15 June 2006, appellant responded to the Corps' show cause
letters stating the reasons for its inability to complete the work (agency supp. R4,
tab 26). Appellant also referenced several events that took place and documents
relating to those events, including a pre-final inspection that occurred on 5 May 2006
and a final inspection on 2 June 2006. However, the record does not contain evidence
of the referenced events or evidence of the contents of the documents relating thereto.
(Id. at 13) We find that appellant demobilized from the site on 10 June 2006.
48. The record further shows that the parties met in August of 2006 to discuss
outstanding issues and to finalize the project (agency supp. R4, tab 27). By letter
dated 3 October 2006, the Corps addressed the outstanding gravity sewer line issue as
follows:
In our letters dated April 3, 2006 and June 2, 2006, you
were given an opportunity to complete the required sewer
line work. Since you have failed to complete the sewer
line work, a contract modification will be issued to delete
the removal and replacement of the gravity sewer line.
You will be requested to provide a proposal for deleting
this work .... Based on our estimates and available
information, I believe that the credit owed to the
Government for deleting the remaining work is greater
than the remaining amounts owed under the original
contract and the total amount of all outstanding
19
modifications. Therefore, there will be no further payments
issued under this contract pending final resolution.
(Agency supp. R4, tab 28)
49. The parties continued to settle outstanding issues under the contract. By
letter dated 22 April 2009, the Corps addressed the outstanding issue of the gravity
sewer line work. The CO stated: "Since you have failed to complete replacement of
the sewer line, I am proceeding with a separate construction contract to accomplish the
work." (Agency supp. R4, tab 29) The Corps attached a proposed bilateral
modification to delete the work from the contract, which would have resulted in a
decrease of$155,289.46 in the total contract price (app. supp. R4, vol. II, tab 18).
50. On 24 April 2009, the deleted gravity sewer line work was awarded to
B&K Construction Co., LLC (B&K) via modification to its existing Soniat Canal
contract (W912P8-07-C-0007) for $953,845.10 (app. supp. R4, vol. II, tab 26;
tr. 21197, 199). Included in the modification were several drawings created by
appellant showing conflict box installation and location of the existing gravity sewer
line and the sewer force main (app. supp. R4, tab 26 at CRP 1080-86; tr. 21114-16).
51. Appellant responded on 11 May 2009, disagreeing with the CO's position
stating:
At no time has [appellant] refused to complete this work, in
fact, as clearly indicated by our litany of correspondence
dating as far back as October 2004, [appellant] has shown due
diligence, asking the [Corps] for Information and Direction,
as required by the contract when faced with a situation where
Changed Conditions are found to exist on a contract.
Accordingly, appellant did not sign the proposed modification. (Agency supp. R4,
tab 30)
52. By letter dated 18 September 2009, the CO informed appellant that the
deletion of the sewer line work was based on its "refusal to perform the work as
required" by the contract, and thus was deemed abandoned. The CO also cancelled
Modification No. AOOl 14 (Change Order-011, Sewer Manhole Changes), which was for
work to the sewer line manholes that was never accomplished. Appellant was further
advised that the Corps had made other arrangements to accomplish the unfinished work
on the sewer line. Enclosed with the letter was unilateral Modification No. P00121,
which decreased the contract by a sum total of$155,289.46. (Agency supp. R4, tab 31)
Based upon the foregoing, we find that, other than the conflict box work, appellant did
not accomplish any of the work on the gravity sewer line.
20
53. Appellant responded to the Corps decision, by letter dated 23 September
2009, contending that the Corps had breached the contract by the issuance of unilateral
Modification No. P00121. Specifically, appellant alleged that it promptly advised the
Corps of "the discrepancies between the contract documents and the actual condition
and location and obstructions related to the installation of the gravity sewer line"; and
that the issuance of Change Order-011 confirmed that a material difference did exist.
Appellant disputed the Corps' contention that it refused to complete the work, pointing
out that the Corps, over a period of several years, had demonstrated an unwillingness
to negotiate the outstanding issues. (Agency supp. R4, tab 32)
54. By letter dated 15 October 2009, appellant's counsel requested a settlement
conference for all outstanding issues under the Soniat Canal project including the
deletion of the gravity sewer line work, which was quantified as $516,667.77 (app.
supp. R4, vol. II, tab 22). This amount included the following: ( 1) "POOH" (field
office overhead) $206,866.98; (2) "Change Order Value" $155,289.46; (3) "Accrued
Interest" $61,515.37; and (4) other markups (21.95%) $92,995.96 (app. supp. R4,
vol. II, tab 20 at CRP 1025). On 2 November 2009, appellant requested a COFD on
the outstanding claims, including the deletion of the gravity sewer line and certified all
claims over $100,000 (agency supp. R4, tab 3).
55. On 22 April 2011, the CO issued a decision denying the claim for the
gravity sewer line in its entirety. The COFD did not address appellant's claim
regarding the existence of a differing site condition. (Agency supp. R4, tab 1;
tr. 2/267) However, we find that the issue was, by implication, before the CO for
consideration as it was the reason that appellant would not proceed with the work.
Appellant filed a notice of appeal on 19 July 2011, which the Board docketed as
ASBCA No. 57688.
DECISION
ASBCA No. 57387 Sheet Piling Claim
Appellant contends that it encountered a Type II differing site condition, and
thus it is entitled to payment for the costs related to the 7 5 sheet pilings it was "forced"
to leave in the ground (app. hr. at 1). Appellant alleges that it encountered an
unknown physical condition at the site and tried a number of extraordinary measures
to extract the piles (id. at 2). Because all other variables remained constant in the
equipment, materials and methods used to drive and extract these temporary sheet
pilings, appellant concludes that it had encountered a Type II differing site condition -
"namely, strata of subsurface soils with excessively strong adhesive qualities, which
were unusual and unknown, and which differed materially from the soils that [it]
ordinarily encountered in the greater New Orleans area while driving and extracting
temporary sheet piling" (id. at 3).
21
The Corps counters that appellant has not "identified the specific differing site
condition to which it alludes, but relies on the assertion that, since it took all
reasonable steps to extract the sheet pilings but could not do so, the only remaining
explanation must be the existence of a Type II differing site condition" (gov't. br.
at 13 ). The Corps alleges that appellant did not conduct an investigation into the
subsurface conditions at the job site, and has not offered any specifics as to the alleged
differing site condition that prevented it from removing the sheet pilings. Thus, the
Corps concludes that appellant has failed to meet its burden to establish the existence
of a Type II differing site condition. (Id. at 35-36) Moreover, the Corps further adds
that appellant has not demonstrated that it incurred costs due to the inability to remove
the sheet pilings because it invoiced the full cost of these items through progress
payments (id. at 55).
A contractor asserting a Type II differing site condition claim is "confronted
with a relatively heavy burden of proof." Huntington Construction, Inc., ASBCA
No. 33526, 89-3 BCA ~ 22,150 at 111,479 (citing Charles T. Parker Construction
Co. v. United States, 433 F.2d 771 (Ct. Cl. 1970)). In order to qualify as a Type II
differing site condition, "the unknown physical condition must be one that could not
be reasonably anticipated by the contractor from his study of the contract documents,
his inspection of the site, and his general experience[,] if any, as a contractor in the
area." Randa/Madison Joint Venture Ill v. Dahlberg, 239 F.3d 1264, 1276 (Fed. Cir.
2001) (quoting Perini Corp. v. United States, 381F.2d403, 410 (Ct. Cl. 1967)).
The contract documents and soil borings clearly show the soil was typical for the
area (finding 23). Contract borings are the most significant indicator of subsurface
conditions. Nova Group, Inc., ASBCA No. 55408, 10-2 BCA ~ 34,533 at 170,322. We
agree with the government's expert that it is highly unlikely that based on the soil borings
in the contract, variations in the soil would exist in 20 foot increments. What was
apparent was that appellant could not remove some of the pilings using its usual means
and methods of extraction. The plain fact that they could not be removed does not
necessarily mean, absent further evidence, that it must be as appellant contends. Here,
appellant has offered no further evidence to prove its case that the inability to extract the
piles was caused by a Type II differing site condition. Appellant speculates that because
it had difficulty removing some of the sheet pilings, a Type II differing site condition
must have existed. Its proof of the differing site condition consists solely of its difficulty
in removing sheet pilings. This circular argument cannot prevail. Thus, appellant has
failed to meet its burden that it encountered a Type II differing site condition.
Appellant further contends that because it was previously compensated for
leaving pilings in the ground at various other points along the work site that it proves
that the Corps "recognized that these sheet pilings were an asset that belonged to
Pittman, and Pittman was entitled to an equitable adjustment for the loss of this asset"
(app. reply br. at 12). We disagree. To the extent that appellant argues that its "prior
course of dealing" with the government should dictate the outcome of this matter, we
22
disagree. In our previous decision under the timber mat claim, under the subject
contract, we stated the following:
Section 223(1) of the Restatement (Second) of
Contracts (1981) defines a course of dealing as: "a
sequence of previous conduct between the parties to an
agreement which is fairly to be regarded as establishing a
common basis of understanding for interpreting their
expressions and other conduct." Section 1-205(1) of the
Uniform Commercial Code (U.C.C.) defines "a course of
dealing" as: "a sequence of previous conduct between the
parties to a particular transaction which is fairly to be
regarded as establishing a common basis of understanding
for interpreting their expressions and other conduct." The
courts have held that a single transaction cannot
constitute a "course of dealing" within the meaning of
U.C.C. § 1-205(1). See International Therapeutics, Inc. v.
McGraw-Edison Co., 721 F.2d 488, 492 (5th Cir. 1983);
Product Components, Inc. v. Regency Door and Hardware,
Inc., 568 F. Supp. 651 (S.D. Ind. 1983). We have said in
Western States Construction Company, Inc., ASBCA
No. 37611, 92-1BCAii24,418 at 121,894:
While there is no magic number of contracts that
must be performed before this principle is
applicable, the parties' prior dealings must be
regular and/or numerous enough to cause a
reasonable expectation that the conduct relied
upon was not mere accident or mistake, but was
the performance actually expected by the other
party.
C.R. Pittman, 08-1 BCA ii 33, 777 at 167, 178. The record demonstrates that these
other instances of compensating appellant to leave pilings in the ground were done
bilaterally under the Changes clause (app. supp. R4, tab 36). We assume that the
Corps made a decision in its best interest and discretion to leave those pilings in place.
With regard to the pilings that are the subject of the claim at issue, leaving the pilings
in the ground was done for appellant's convenience - i.e., it could not remove them;
and not for the benefit of the Corps. The fact that the Corps chose to compensate for
one and not the other was reasonable.
As appellant failed to prove the existence of a Type II differing site condition,
the alleged crane damage due to excessive effort to remove the questioned sheet
pilings is also denied.
23
ASBCA No. 57388 Flood Events Claim
Appellant alleges that it is entitled to the standby costs associated with the TRS
remaining on the job longer than anticipated. Unlike the timber mats (which were
deemed "material" by the Board in C.R. Pittman, 08-1BCA,33,777 at 167,177-78,
and thus consumed), appellant contends that the TRS is similar to items listed in the
equipment schedule (EP 1110-1-8) such as work barges and platforms (app. br. at 14).
Because appellant supplied its own TRS platform and the project went beyond the
original 900 contract days, appellant believes that it "is entitled to an equitable
adjustment to compensate it for the ownership and operating costs associated with its
investment in this equipment" (id. at 18).
The Corps concedes that appellant did incur costs associated with delays due to
the 109 flood events. However, the Corps avers that it already compensated appellant
for those delays and appellant has failed to establish that it is entitled to anything
further. (Gov't br. at 20) Specifically, the Corps contends that appellant recovered the
full purchase and fabrication cost of the TRS and the elevated work platform, etc.,
through progress payments (id. at 21, 23). With regard to the classification of the TRS
and other items mentioned above as equipment, the Corps believes that this
classification is only relevant to determine quantum, not entitlement (id. at 26). Once
appellant has recovered the full value of the item, regardless of the classification of the
item as equipment or materials, through progress payments, the Corps contends, "it no
longer has an ownership cost associated with that item" (id. at 28). To support its
proposition, the Corps cites Hicks & Ingle Co. of Va., Inc., ASBCA No. 39711, 90-2
BCA, 22,897, where we held that the clear language of the payments clause of that
contract dictated that equipment that was fully paid for via progress payments became
the sole property of the government.
Appellant replies that the Corps "bought" the use of the TRS on a lump sum
basis for 900 days. The invoices submitted to the Corps did not represent the full cost
of purchasing and fabricating the TRS and construction bridge. (App. reply br. at 2;
tr. 11158-59) Appellant distinguished Hicks by pointing out that in the present case,
the Corps never claimed that it was entitled to keep the construction bridge and TRS
after the Soniat Canal job was completed; while in Hicks, the government did in fact
make such a claim (app. reply br. at 6).
Contrary to the Corps' assertion, the ultimate question of whether the
ownership costs for the TRS and associated items are allowable under the contract
does indeed boil down to whether the items can be categorized as equipment (and thus
an allowable delay cost under the contract) or materials. Appellant's expert,
Dr. Householder, explained that in the construction industry, the standard term
"equipment" is used to define all items brought to the job to assist in the construction
process. Equipment can be broken down into two categories: (1) production
24
(equipment brought to the job to accomplish a single purpose); and (2) support
(equipment brought to the job to assist in the work - i.e., scaffolding). Thus,
Dr. Householder opined that the sheet piling, bridge sections, and structural bracing
are support equipment. (App. supp. R4, vol. II, tab 29 at CRP 1098)
The Corps did not offer any expert testimony, but does point to several
references in the record as well as a previous decision to dispute appellant's expert
opinion. Specifically, the Corps alleges that the work platform/IRS was not simply
constructed to assist in the performance or execution of the contract work, but was a
required feature of the contract work. It cites that the government estimators
considered all of the TRS components, including the sheet piles and structural bracing
as well as all items that went into the construction of the elevated work platform to be
materials. (R4, vol. I, tab T) Moreover, the sheet piling descriptive literature and
leasing agreement with SkyLine Steel referenced them as construction materials (supp.
R4, tab 15 at 3) or "materials" (app. supp. R4, vol. I, tab 17). The Corps cites a
previous decision from the Engineer Board that refers to sheet piles as "materials."
See JA. Jones Construction Co., ENG BCA No. 6348 et al., 00-2 BCA if 31,000.
Finally, the Corps refers to the equipment manual (EP 1110-1-8) and notes that it
contains no equipment that is remotely similar to the work platform/IRS. Thus, the
Corps concludes that the function of the work platform/IRS does not accord with the
common sense understanding of the term "equipment" and appellant's position is not
well taken. (Gov't reply br. at 47-49) We agree.
The Corps viewed these items as materials and appellant never questioned their
categorization until the cost dispute arose. We are unpersuaded by appellant's
arguments and evidence to the contrary. Accordingly, we hold that the TRS system
consisted of materials that did not transform into equipment when put together into an
elevated platform and temporary retaining structure. As such, the appeal is denied.
ASBCA No. 57688 Gravity Sewer Claim
Appellant contends that it encountered a Type I differing site condition with
regard to the gravity sewer line portion of the contract because there was a variation
between the expected conditions and what it actually encountered at the site.
Specifically, the contract drawings showed that the gravity sewer line running parallel
to the sewer force main, while in actuality the gravity sewer line ran underneath the
sewer force main, in some places, and approximately two feet lower than the elevation
in the contract. (App. br. at 29) Thus, appellant contends that requiring a contractor
"to proceed with the work and to assume responsibility for any damage that might
occur, without agreeing in advance to compensate Pittman for repairing this damage, is
a breach of contract, and is contrary to the purpose of the Differing Site Conditions
Clause." To support its proposition that it did not have a duty to proceed with
25
construction until the issue was settled, it cites J. Parr Constr. & Design, Inc. v.
United States, 996 F.2d 319 (Fed. Cir. 1993) (table) 5 as authority. (App. br. at 30)
The Corps argues that appellant has not met its burden of proof to establish the
existence of a differing site condition because it presented no evidence that it reasonably
relied upon its interpretation of the contract and contract-related documents. Moreover,
the Corps contends that the record is devoid of evidence showing the "differing"
condition it actually encountered in the field; appellant relied on "conclusory statements
and vague and unsubstantiated allegations." Furthermore, the Corps avers that the
drawings that appellant prepared for the installation of conflict boxes that showed the
existing utilities (Pittman drawings), including the gravity sewer and sewer force main
were "three and a half feet" (tr. 2/114-15) to "five foot, eight inches" apart (tr. 2/55-56).
Further testimony from the ACO (Stephen Hinkamp) and the project engineer (Robert
Guillot) for the canal work indicated that the distances between the lines on the Pittman
drawings were similar to what was indicated on the contract drawings (gov't br. at 49-
50). Finally, appellant did not incur any costs associated with its claim because it did not
perform the gravity sewer line work (id. at 54 ).
Although not addressed in the COFD, appellant's Type I differing site condition
claim is intertwined with its breach of contract claim. During the hearing, the CO
testified with regard to the reasons appellant's claim was denied: "I didn't deny the
claim for any reason related to the ... alleged differing site condition .... I found the
claim didn't have merit because C.R. Pittman didn't install the sewer line and did
nothing to expose whatever differing site condition that they felt existed." (Tr. 2/267)
Thus, the Type I differing site condition claim was denied by implication (finding 55).
To recover under a Type I differing site condition claim, the contractor bears
the burden of proof showing that conditions actually encountered differed materially
from those "indicated" in the contract. Foster Constr. C.A. & Williams Bros. Co. v.
United States, 435 F.2d 873, 881 (Ct. Cl. 1970). A contractor cannot be eligible for an
equitable adjustment for Type I changed conditions unless the contract indicated what
those conditions would supposedly be. P.J Maffei Bldg. Wrecking Corp. v. United
States, 732 F.2d 913, 916 (Fed. Cir. 1984); S.T.G. Construction Co. v. United States,
157 Ct. Cl. 409, 414 (1962).
Here, appellant fails to meet that burden. It could not offer any proof of what it
encountered because it never began construction (finding 52). The applicable contract
clause and numerous cases all contemplate that a comparison between the drawings
and what was actually encountered at the site must be done in order to prove that a
5
Appellant cites to the tables showing that the Federal Circuit affirmed "without
opinion" the Court of Federal Claims decision. However, the tables are not
citeable as precedent. Thus, we discuss the case reported below at 24 Cl. Ct.
228 (1991).
26
material difference exists. Appellant cannot prevail on a differing site condition
without this crucial piece of the puzzle. Thus, appellant's arguments must fail.
Appellant's reliance on J Parr Constr. is misplaced as that case stands for the
proposition that the duty to proceed with work under a contract is not absolute when
conditions at the job site differ materially from those in the contract so that a
contractor possesses a reasonable fear of danger. In J Parr Cons tr., the contractor
was terminated for default because it abandoned the project (due to unfounded safety
concerns), poor work quality, and failed to comply with environmental regulations.
This is not applicable to the instant appeal as appellant never notified the Corps that it
was not safe to do the contractually-required work. 6
Further, the Corps' action to descope the contract to award the work to B&K
was also reasonable. The record shows that the Corps awarded the work to B&K on
24 April 2009, nearly three years after appellant had demobilized the work site
(finding 47) and the government had considered the work abandoned. Accordingly,
appellant's breach of contract claim is denied.
CONCLUSION
The appeals are denied.
Dated: 4 February 2015
OWEN C. WILSON
Administrative Judge
Armed Services Board
of Contract Appeals
I concur
RICHARD SHACKLEFORD
Administrative Judge Administrative Judge
Acting Chairman Vice Chairman
Armed Services Board Armed Services Board
of Contract Appeals of Contract Appeals
6
In any event, Court of Federal Claims decisions are not binding precedent for this
Board.
27
I certify that the foregoing is a true copy of the Opinion and Decision of the
Armed Services Board of Contract Appeals in ASBCA Nos. 57387, 57388, 57688,
Appeals of C.R. Pittman Construction Co., Inc., rendered in conformance with the
Board's Charter.
Dated:
JEFFREY D. GARDIN
Recorder, Armed Services
Board of Contract Appeals
28