John C. Grimberg Co., Inc. ( 2019 )

ARMED SERVICES BOARD OF CONTRACT APPEALS
Appeals of -- )
)
John C. Grimberg Co., Inc. ) ASBCA Nos. 58791, 59717
)
Under Contract No. W912DR-09-C-0038 )
APPEARANCES FOR THE APPELLANT: Edward J. Parrott, Esq.
Stephanie M. Rochel, Esq.
Watt, Tieder, Hoffar & Fitzgerald, LLP
McLean, VA
APPEARANCES FOR THE GOVERNMENT: Michael P. Goodman, Esq.
Engineer Chief Trial Attorney
Scott C. Seufert, Esq.
David B. Jerger, Esq.
Engineer Trial Attorneys
U.S. Army Engineer District, Baltimore
OPINION BY ADMINISTRATIVE JUDGE PEACOCK
ON THE GOVERNMENT'S MOTION FOR RECONSIDERATION
The government timely moves for reconsideration of our decision in ASBCA
No. 58791 and the relevant portion of ASBCA No. 59717, as issued in John C.
Grimberg Co., Inc., ASBCA No. 58791 et al., 2018 WL 6113411 (Oct. 25, 2018),
contending that the Board erred in concluding that appellant encountered a Type I
differing site condition (DSC). Familiarity with that decision is presumed. The ·
government maintains that appellant failed to reasonably interpret contractual
indications of the quantity of incompetent rock that would be encountered in drilling
into the Karst prevalent at the site. Therefore, according to the government, appellant
failed to establish all requisite elements essential to establish a DSC and satisfy its
burden of proving entitlement. The government also challenges our use of a "jury
verdict" approach in evaluating the quantity of rock drilling reasonably indicated and
developing our "allowance" adjusting appellant's estimate to reflect the results of our
evaluation, emphasizing that quantum was not an issue.
Standards for resolving a motion for reconsideration are well established. Such
motions do not provide a party an opportunity to reargue issues that were previously
raised and decided. Precision Standard, Inc., ASBCA No. 58135, 16-1 BCA, 36,504
at 177,860. A motion for reconsideration does not provide a litigant a "second bite at the
apple" or the opportunity to advance arguments that properly should have been presented
in an earlier proceeding. Dixon v. Shinseki, 741 F.3d 1367, 1378 (Fed. Cir. 2014). We
grant motions for reconsideration "if we have made a genuine oversight that affects the
outcome of the appeal." Relyant, LLC, ASBCA No. 59809, 18-1BCA137,146
at 180,841. This is not such a case. The request for reconsideration is denied.
The government continues to place great emphasis on a series of borings 300 to
500 feet away from the site of the Biolab foundation, while ignoring more proximate
and relevant borings, in particular DH-11 and DH-12, aligned on the site. Moreover,
the government's analysis thereof was refuted. Appellant persuasively established that
the actual Biolab subsurface drilling conditions were far worse (and different) than one
would predict even based on the USAMRIID borings. JCG actually drilled through
approximately 3.75 times the amount of rock that could have been anticipated based
on the USAMRIID borings. Grimberg, 2018 WL 6113411 at 29.
In addition, the government's subsurface exploration and resultant boring data
provided to offerors in the solicitation were flawed and deficient. They omitted
specific data directly at the site where the drilling for the Biolab foundation would
occur. Despite the emphasis on the highly variable nature of the karst generally in the
solicitation 's Geotechnical Report, that report failed to take that emphasis "to heart"
and provide meaningful, specific boring data (other than DH-11 and DH-12) at, or
reasonably proximate to, the critical drilling site. The greater the variability of the
subsurface, the greater the need for the latter data. In short, the government failed to
put into practice what it preached. Moreover, despite the considerable variability of
subsurface rock conditions inherent in Karst topography, the contract contained no
provisions for pricing extreme variations in the quantity of rock drilling required.
Although there was a plethora of generalized ( often repetitive) information concerning
Karst variability, contributing significantly to development of our "allowance," there
was a paucity of proximate, site-specific boring data, one factor contributing to our
sustention of the appeal.
With respect to developing our "allowance," we exercised our discretion and best
judgment after careful consideration and analysis of the entire record with emphasis on
particularly relevant findings identified in the principal opinion. That judgment, based
as it was on numerous factors and findings necessarily was in the nature of a "jury
verdict." The government now questions our judgment relying on essentially the same
arguments that it made previously. We decline to revisit in detail the complete rationale
for our determination (see, e.g., Grimberg, 2018 WL 6113411 at 30). Although "jury
verdict" determinations arise most commonly in the context of quantum determinations
of final dollar amounts, there is nothing that prohibits or inhibits Board judges from
performing similar equitable analyses in an "entitlement" context. Obviously, our
allowance also provides guidance and has significant implications for quantum
negotiations on remand. Rather than remand issues related to development and amount
of the allowance for quantum negotiations, we deemed it more efficient to "jury verdict"
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the allowance given the great disparity in the views of the parties as to what was
reasonably indicated in the contract regarding subsurface rock.
The primary contentions originally raised by the parties and considered by us in
reaching our conclusions centered on whether an "allowance" constituted a disfavored
"contingency." The concept and necessity of developing an "allowance" recognizing
the extensive variability of rock was a primary tenet of the Corps' position. We
essentially agreed with the government's position that such an allowance was a valid
distinction with critical differences in the context of this case. Grimberg, 2018 WL
6113411 at 30-31. On reconsideration, the Corps now argues that the Board should
refrain from developing its own "allowance," in legal parlance denominated a "jury
verdict," based on the same data furnished to offerors, supplemented by detailed
testimony, expert analyses, and the complete documentary record developed at trial.
The obvious relevance of our "allowance" to quantum phase negotiations illustrates
that any line between "entitlement" and quantum "jury verdicts" is blurred and
indistinct at best. There was no more reliable method of developing a precise estimate
of the amount that should have been anticipated. Moreover, the Board considered
numerous pertinent countervailing factors and the entire record in rendering its best
judgment to fairly and reasonably approximate what it considered to be the appropriate
"allowance" with patent implications for quantum phase negotiations on remand.
Cf Grumman Aerospace Corp. v. Wynn, 497 F.3d 1350, 1358 (Fed. Cir. 2007)
(citations omitted); see also Great Lakes Dredge and Dock Co., ENG BCA No. 5606,
91-1 BCA il 23,613 at 118,339 (and cases cited). In appropriate cases such as this, our
conclusory assessments are essential to rendering a fair judgment after careful scrutiny
of pertinent factual considerations bearing on the issues in dispute, regardless of
whether they may be classifiable as "entitlement-related" evaluations. Given the
extensive poor rock encountered by appellant, rejection of appellant's claim for failure
to reasonably interpret contractual indications as a whole was unfair and inequitable.
On the other hand, failure to develop our "allowance" adjusting appellant's bid to
reflect what the Board considered to be an amount reasonably indicated would have
been unfair to the government. An "all or nothing" resolution of this case would have
been overly legalistic and unjust.
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The motion for reconsideration is denied.
Dated: January 2, 2019 ,,/1
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ROBERT T. PEACOCK
Administrative Judge
Armed Services Board
of Contract Appeals
I concur I concur
RICHARD SHACKLEFORD J. REID PROUTY
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 Nos. 58791, 59717, Appeals of
John C. Grimberg Co., Inc., rendered in conformance with the Board's Charter.
Dated:
JEFFREY D. GARDIN
Recorder, Armed Services
Board of Contract Appeals
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