Senate Builders and Construction Managers, Inc. v. United States ( 2017 )

In the United States Court of Federal Claims
No. 14-1196C
(Filed April 29, 2017)
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SENATE BUILDERS AND * Breach of contract; equitable
CONSTRUCTION MANAGERS, * adjustment; differing site conditions;
INC., * implied-in-fact contract; estoppel;
* excavation; Army Corps of Engineers;
Plaintiff, * summary judgment; unreasonable
* contract interpretation.
v. *
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THE UNITED STATES, *
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Defendant. *
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Travis L. Kreiser, Kreiser & Associates, P.C., of Havertown, Pa. for plaintiff.
Jeffrey M. Lowry, Commercial Litigation Branch, Civil Division, Department
of Justice, with whom were Benjamin C. Mizer, Principal Deputy Assistant
Attorney General, Robert E. Kirschman, Jr., Director, and Deborah A. Bynum,
Assistant Director, all of Washington, D.C., for defendant.
MEMORANDUM OPINION AND ORDER
WOLSKI, Judge.
Plaintiff, Senate Builders and Construction Managers, Inc. (Senate Builders)
filed this claim against the United States seeking to recover the costs it incurred
importing backfill in connection with a construction contract between Senate
Builders and the United States, acting through the United States Army Corps of
Engineers (Army Corps or the agency). Compl. ¶¶ 2, 9–11. Pending before the
Court are dispositive motions filed by both parties. Senate Builders seeks to
recover under a number of legal theories --- equitable adjustment, differing site
conditions, implied contract, and estoppel, see id. ¶¶ 12–41 --- but at bottom, all of
its claims hinge on a single contention: that one answer provided by the agency to
an offeror’s question meant that all soil at the construction site would be suitable
for use as backfill. Id. ¶¶ 8–9. The agency argues that it made no such
representation, and that Senate Builder’s argument to the contrary rests upon an
unreasonable reading of the contract. Def.’s Mot. for J. on the Pleadings &
Summary J. & Appendix (Def.’s Mot.) at 23–24. This dispute, the reasonableness of
Senate Builders’ reading of the contract, is the only question before the Court. If
the government is correct, all of plaintiff ’s claims fail. As discussed in more detail
below, plaintiff’s reading of the contract is unreasonable, and as a consequence, the
government’s motion is GRANTED and plaintiff ’s cross-motion is DENIED.
I. BACKGROUND
A. The Solicitation and Pre-Award Exchanges
On March 13, 2012, the Army Corps issued Solicitation No. W912DS-12-R-
0010-0015 (the solicitation), for a design/build contract regarding two explosives
storage magazines to be located at Picatinny Arsenal in New Jersey. Def.’s App.
(DA) at 1, 24–25, 72–73. The contractor was to demolish the two existing
magazines and replace them with new structures. Both of these new structures
were to be covered with a minimum of 2 feet of earth, on all sides except the
loading-dock side. Id. DA at 8. The contract had two firm-fixed price Contract Line
Items (CLINs) and one unit price CLIN. DA at 76–77. One firm-fixed price CLIN,
CLIN 0003, was for asbestos removal and the unit price CLIN, CLIN 0002, was for
rock excavation. Id. The dispute before the Court only concerns the construction of
the new structures, which was part of the remaining firm-fixed price CLIN, CLIN
0001. Id.
The solicitation called for certain excavation work to be performed to allow
for the installation of the foundations for the new structures as well as trenches for
a storm sewer system. Id. at 26, 33, 45. The contractor was directed to “[e]xcavate
unsatisfactory materials encountered within the limits of the work below grade and
replace with satisfactory materials.” Id. at 34. The solicitation also informed
offerors that should they encounter either “unyielding” or “unstable” materials
during such excavation those materials were to be replaced with “select granular
material.” 1 DA at 35, 39. “Select granular material” was defined in the solicitation
as material classified as “GW” or “SW” 2 by ASTM D 2487, a classification scheme
incorporated into the contract, DA at 29, 172. The solicitation also defined “GW” or
“SW” as “satisfactory material,” a term used at various points in that document to
1 Unyielding materials were defined to include “weathered rock, dense consolidated
deposits, or [certain] conglomerate materials,” DA at 29, and could also be replaced
with initial backfill, id. at 39. Unstable materials were defined as “too wet to
properly support the utility pipe, conduit, or appurtenant structure.” Id. at 29.
2 The ATSM D 2487 defines “GW” as well-graded gravel and “SW” as well-graded
sand. DA at 174.
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refer to soil that was suitable for various purposes, including use as backfill and for
embankments. DA at 28, 38, 40–41. The contractor was directed to use
“satisfactory materials” that it had excavated for embankments and backfill, and to
dispose of excess satisfactory materials, as well as unsatisfactory materials, but the
contractor was not to waste any satisfactory materials. DA at 33–34, 38. The
solicitation also provided additional restrictions on the soil that could be used for
embankments, limiting the size of the rocks that could be present and requiring
that no frozen or organic material be included. DA at 41.
The solicitation also informed offerors that there was “no borrow/material at
the Picatinny Arsenal” --- that is, that the only materials available on the worksite
would be the materials that the contractor excavated. DA at 36, 125. Prospective
contractors were informed that they would be responsible for obtaining the rights
to, and paying all costs associated with, acquiring materials from an offsite borrow.
DA at 36. Additionally, the solicitation provided guidelines for submitting test
results from a proposed borrow site to the contracting officer, who had to approve
any offsite borrow site. DA at 31–32.
Because of the contemplated reuse of excavated soil by the contractor, and
the specifications regarding the type of soil that could be used for different
purposes, a geotechnical report was included with the solicitation. DA at 6. That
report detailed the results of two test borings that had been conducted at the
construction site. DA at 9. These borings, one taken from each of the sites where
the new buildings were to be erected, DA at 17, indicated that the soil at one of the
building sites was “GM” 3 soil, id. at 22. The report for the boring at the other
building site left the soil classification section blank, but indicated that the soil was
brown gravel, with some sand, little silt, and 13% fines. DA at 23. Soil with these
characteristics meets the definition of “GM” soil contained in ATSM D 2487. DA at
174. As noted above, “GM” was not “satisfactory material” within the meaning of
the solicitation. DA at 28.
The solicitation informed offerors that there would be a single site visit for all
prospective offerors. DA at 136. The provision addressing the site visit warned
offerors that they were “responsible to determine existing conditions of the site, and
the buildings to be renovated.” Id. at 137. Representatives of Senate Builders did
not attend the site visit. DA at 48–50; Ex. A to Pl.’s Resp. in Opp’n to Def.’s Mot. for
J. on the Pleadings & Summ. J. & in Supp. of Pl.’s Cross-Mot. for Summ. J. and
Request for Oral Arg. (Pl.’s Ex. A) at 1–2; Ex. B to Pl.’s Resp. In Opp’n to Def.’s Mot.
for J. on the Pleadings & Summ. J. & in Supp. of Pl.’s Cross-Mot. for Summ. J. &
Request for Oral Arg. (Pl.’s Ex. B) at 2.
As noted above, one part of the excavation work the contractor had to
perform was digging trenches for a storm sewer system. The solicitation informed
3 The ATSM D 2487 defines “GM” as “[s]ilty gravel.” DA at 174.
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offerors that, should “unsuitable materials” be encountered below the location
where the contractor was to place the bedding for the trenches, such unsuitable
material should be “remove[d] and replace[d] with 12 inches of additional bedding,
or as directed by the contracting officer.” DA at 45. This instruction, and the
drawing to which it was attached, provoked a question from a prospective offeror
(not Senate Builders) which is the central focus of this case:
27. Question
Note 2 for detail “Typical Trench, Storm Sewer System” on Page C-501
shows that additional excavation may be required if unsuitable
material is encountered. The unsuitable material will be replaced with
12" of additional suitable bedding. The same applies to the buildings
excavation, as indicated in paragraph 1.1.1 Excavation, in section 31-
00-00 Earthwork, of the specifications. Shouldn't a separate item be
created for the select backfill material required to replace the
excavated unsuitable material? It is impossible to figure out a
quantity at this time since we don't know what the existing conditions
will be until excavation is started?
Response:
Contractor to assume unsuitable material is not encountered.
DA at 58.
The above answer (and question) was included in Amendment 6 to the
solicitation. DA at 58, 74–75. That amendment also contained a number of other
questions and answers addressing whether certain types of materials located on site
could be used as backfill. In its answer to each of these questions --- such as one
asking “[i]f rock is crushed on site can we use this material as backfill?” --- the
agency informed bidders that “[m]aterial that satisfies fill specification
requirements can be used on site.” DA at 53. Another contractor asked “[i]f
concrete and brick from building is crushed on site can it be used as backfill
material?” Id. The answer, again, was that “[m]aterial that satisfies fill
specification requirements can be used on site.” Id. Another question and answer
contained in Amendment 6 spoke directly to the issue of whether excavated
materials found on site could, as a general matter, be used as backfill. A contractor
asked: “Can we dispose of all excavated material on site? If not, can we use as
backfill material? What is the largest size material with rock in it that we can use
as backfill material?” DA at 52. To this, the government responded: “Refer to
amendment #5. Backfill material shall comply with specification ASTM D 2487
cohesion-less fill criteria requirements.” Id. 4 In short, the questions and answers
4 A copy of Amendment 5 was not submitted by either of the parties.
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contained in Amendment 6 leave no doubt that if materials were to be used as
backfill they had to meet the requirements of the solicitation and that it was
uncertain how much of the material on site was suitable for such use.
B. Contract Award and Performance
On July 18, 2012, the agency awarded the contract to Senate Builders, at a
price of $1,686,168 for CLIN 0001. DA at 73, 76. 5 The contract incorporated a
number of Federal Acquisition Regulation (FAR) provisions, including § 52.243-1,
Changes; § 52.236-2, Differing Site Conditions; and § 52.236-3, Site Investigation
and Conditions Affecting the Work. DA at 80–81. Pursuant to the Differing Site
Conditions clause, Senate Builders had to give prompt written notice to the
contracting officer of any “subsurface or latent physical condition at the site which
differs materially from those indicated in the contract,” 48 C.F.R. § 52.236-2(a), or
“unknown physical conditions at the site, of an unusual nature, which differ
materially from those ordinarily encountered,” id. After such notice, and if the
contracting officer determines that the conditions so warrant, the contract provides
that an equitable adjustment shall issue to reflect the increased costs of
performance due to the differing site condition. 48 C.F.R. § 52.236-2(b).
On August 9, 2012, the agency issued the notice to proceed to Senate
Builders. DA at 154. Senate Builders completed the contract on time, with three
contract modifications being issued over the course of performance. DA at 155–61.
The first authorized an increase in the quantity of rock to be excavated because the
amount of rock discovered during performance exceeded the estimate. DA at 155–
56. The second modification related to the addition of a six-inch drainage pipe and
of grout above the doors of both structures. DA at 157–159. The final modification
authorized the installation of drip-edges over the doors on the structures. DA at
161.
After performance of the contract had begun, Senate Builders raised concerns
about what material constituted “satisfactory material” for use as backfill around
the newly constructed buildings. DA at 162. Senate Builders, and one of its sub-
contractors, had apparently understood the answer to Question 27, reproduced
above, to mean that all soil on site would meet the requirements for use as backfill.
Id. When Senate Builders encountered soil on site which did not meet the
solicitation’s requirements for backfill, Pl.’s Ex. B at 8, it requested clarification
from the administrative contracting officer regarding the requirements for backfill,
DA at 162. In his response to those concerns the administrative contracting officer
5 The price for CLIN 0002, mass rock excavation and disposal, was $53,546, based
on an estimated 350 cubic yards of rock. DA at 76. Asbestos removal, under CLIN
0003, was to cost $16,392. DA at 77.
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reminded Senate Builders of the definition of satisfactory material provided in the
solicitation. DA at 162. The administrative contracting officer rejected Senate
Builder’s reliance on Question 27, noting that its interpretation ignored the context
in which the question was asked and consequently did not represent a correct
interpretation of the contract. Id. at 162–63. In closing, he informed Senate
Builders that if it did not agree with his interpretation of the contract, it could
submit a formal claim. Id. at 163.
Senate Builders followed the administrative contracting officer’s advice and
submitted a certified claim to the contracting officer on March 28, 2014. DA at 163;
Pl.’s Ex. A at 10–11. In his denial, the contracting officer recited the various
provisions of the contract governing the types of material that could be used as
backfill, DA at 165–167, and again rejected Senate Builders’ reliance on Question
27, DA at 169–70. The contracting officer, just as the administrative contracting
officer had done in the context of Senate Builders’ informal claim, observed that its
reliance on Question 27 failed to take into account the context of that question and
answer --- namely, that it was addressed to the excavation of materials found at the
bottom of trenches. DA at 169–170. In sum, the contracting officer noted that
nothing about the question, or the answer, concerned the amount of material
meeting solicitation requirements “that would be needed to construct an
embankment around the bunker, and whether that material would be found on
site.” Id. at 170.
II. DISCUSSION
A. Legal Standards
Government contract disputes are adjudicated under normal principles of
contract interpretation. See McAbee Constr., Inc. v. United States, 97 F.3d 1431,
1434–35 (Fed. Cir. 1996); Gould, Inc. v. United States, 935 F.2d 1271, 1274 (Fed.
Cir. 1991). The purpose of interpreting a contract is, of course, to “accomplish the
intention of the parties.” In re Binghamton Bridge, 70 U.S. (3 Wall.) 51, 74 (1865);
see also Intergraph Corp. v. Intel Corp., 241 F.3d 1353, 1354 (Fed. Cir. 2001); Tecom,
Inc. v. United States, 66 Fed. Cl. 736, 747 (2005).
The Court will interpret a contract in such a way as to give meaning to all the
provisions of the contract in light of the parties’ intent at the time they entered the
agreement. Tecom, 66 Fed. Cl. at 747. A contract must be “interpreted so as to
harmonize and give meaning to all of its provisions, and [thus] an interpretation
which gives a reasonable meaning to all parts will be preferred to one which leaves
a portion of it useless, inexplicable, inoperative, void, insignificant, meaningless,
superfluous, or achieves a weird and whimsical result.” Arizona v. United States,
216 Ct. Cl. 221, 235–36, 575 F.2d 855 (1978); see also, e.g., Gould, 935 F.2d at 1274;
United States v. Johnson Controls, Inc., 713 F.2d 1541, 1555 (Fed. Cir. 1983);
Tecom, 66 Fed. Cl. at 747.
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The Court will first consider the plain language of the contract’s terms. See,
e.g., Forman v. United States, 329 F.3d 837, 842 (Fed. Cir. 2003); Gould, 935 F.2d at
1274. If a contract term is clear and unambiguous, the Court will adopt its plain
and ordinary meaning. See, e.g., Moran v. Prather, 90 U.S. (23 Wall.) 492, 499
(1874); McAbee Constr., 97 F.3d at 1435; see also Elden v. United States, 223 Ct. Cl.
239, 250–253 (1980); Tecom, 66 Fed. Cl. at 748. “A contract term is unambiguous if
there is only one reasonable interpretation.” C. Sanchez & Son, Inc. v. United
States, 6 F.3d 1539, 1544 (Fed. Cir. 1993); see also Edward R. Marden Corp. v.
United States, 803 F.2d 701, 705 (Fed. Cir. 1986). The plain meaning of a contract
term is “the meaning derived from the contract by a reasonably intelligent person
acquainted with the contemporary circumstances.” Firestone Tire & Rubber Co. v.
United States, 195 Ct. Cl. 21, 30, 444 F.2d 547 (1971); see also Hol–Gar Mfg. Corp.
v. United States, 169 Ct. Cl. 384, 388, 351 F.2d 972 (1965); Tecom, 66 Fed. Cl. at
748. The Court, then, will employ the ordinary meaning of the words used in an
agreement unless there is evidence that the parties meant otherwise --- for instance,
through the adoption of a special definition --- or if the term is ambiguous, in which
case the Court will interpret the contract according to whether the ambiguity is
patent or latent. Tecom, 66 Fed. Cl. at 748; Hol–Gar, 169 Ct. Cl. at 390, 351 F.2d
972; L. Rosenman Corp. v. United States, 182 Ct. Cl. 586, 589–90, 390 F.2d 711
(1968).
Courts interpret latent ambiguities in a contract against the drafting party.
Interstate Gen. Gov't Contractors, Inc., v. Stone, 980 F.2d 1433, 1434 (Fed. Cir.
1992); SIPCO Servs. & Marine, Inc., v. United States, 41 Fed. Cl. 196, 215 (1998).
This rule has been held to apply with extra vigor when the drafting party is the
government. See United States v. Seckinger, 397 U.S. 203, 216 (1970); SIPCO, 41
Fed. Cl. at 215.
B. Plaintiff ’s Claims for Reimbursement of the Costs of the Fill Material
Plaintiff ’s complaint pleads four different legal theories supporting its claim
for compensation for the costs of importing backfill materials, see Compl. ¶¶ 12–41,
but the parties agree that their dispositive motions turn on one single issue: the
reasonableness of plaintiff ’s interpretation of the government’s answer to Question
27. See Tr. (April 18, 2016) at 77–78; Def.’s Reply & Opp’n in Supp. of Mot. for J. on
the Pleadings & Summ. J. (Def.’s Reply) at 1. 6 The complaint, and Senate Builders’
cross-motion, recite four legal theories in support of plaintiff’s request for relief.
6 In its response to plaintiff ’s cross-motion, the government also contends that
genuine issues of material fact would preclude entry of summary judgment in favor
of plaintiff. Def.’s Reply at 11–13. Due to the Court’s disposition of the motions,
that contention need not be addressed.
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First, plaintiff claims that the agency breached the contract by failing to
issue an equitable adjustment, which it was purportedly obligated to do by the
answer to Question 27. Compl. ¶¶ 12–21; Pl.’s Resp. in Opp’n to Def.’s Mot. for
Summ. J. on the Pleadings & in Supp. of Pl.’s Cross-Mot. for Summ. J. & Request
for Oral Arg. (Pl.’s Mot.) at 21–22. Second, plaintiff argues that the government
breached the contract’s differing site conditions clause by failing to authorize an
equitable adjustment for the costs of importing backfill because the contract, as
indicated by the answer to Question 27, allegedly represented that all material on
site could be used as backfill. Compl. ¶¶ 22–30; Pl.’s Mot. at 60–65. Third, plaintiff
contends that the answer to Question 27 created an implied-in-fact contract,
between it and the agency, to pay for the costs of importing any soil to replace any
material found on site that could not be used as backfill. Compl. ¶¶ 31–37; Pl.’s
Mot. at 38–41. Finally, plaintiff claims that, based on the answer to Question 27,
the agency should be estopped from denying its obligation to pay Senate Builders
for the cost of importing backfill. Compl. ¶¶ 38–41; Pl.’s Mot. 44–60.
Though having a number of different sufficient conditions, all of plaintiff’s
theories share a common necessary condition: its interpretation of the answer to
Question 27 must be correct, or at least reasonable. See McAbee Constr., 97 F.3d at
1435; C. Sanchez & Son, 6 F.3d at 1544; HPI/GSA 3C, LLC v. Perry, 364 F.3d 1327,
1334 (Fed. Cir. 2004). If plaintiff ’s interpretation is not reasonable, then the
agency’s answer created no obligation to issue an equitable adjustment; did not
represent the conditions of the site to be different than they were; could not have
created an implied-in-fact contract to pay for the backfill; and did not constitute a
representation about the need to import backfill which the government could be
estopped from denying. 7
The case turns, then, upon the meaning of the answer to Question 27.
Plaintiff asserts that it meant that contractors should assume, for purposes of their
proposals, that no soil which did not meet the requirements for use as backfill
would be encountered on the site. Pl.’s Mot. at 11. Senate Builders contends that
by asking the bidders to assume this, the government either expressly or implicitly
agreed to pay for the costs of importing backfill that met requirements, to the extent
that actual soil conditions differed from those the bidders were told to assume. Id.
The government contends that plaintiff ’s interpretation of the answer to Question
27 is unreasonable because it ignores the context of the question, and conflicts with
other language both in Amendment 6 and in other parts of the contract. Def.’s Mot.
at 29–31; Def.’s Reply at 1–8.
7 Moreover, as Amendment 6 is part of the express contract between the parties,
plaintiff may not base an implied-in-fact contract on its contents. See Trauma Serv.
Grp. v. United States, 104 F.3d 1321, 1326 (Fed. Cir. 1997).
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Plaintiff argues that the answer’s injunction to “assume unsuitable material
is not encountered” could only mean that bidders were to assume that all soil found
on the site could be used as backfill. Pl.’s Mot. at 15–16; Pl.’s Reply at 1–2. But
Senate Builders’ reading of this answer ignores completely the question. The Court
does not find this a reasonable way to interpret anything, and agrees with the
government that the context of the question must be considered in order to
reasonably determine the meaning of the answer. Def.’s Reply at 5; see also Def.’s
Mot. at 8–9.
The first sentence of Question 27 makes plain its limited focus and reads as
follows: “Note 2 for detail ‘typical Trench, Storm Sewer System’ on Page C-501
shows that additional excavation may be required if unsuitable material is
encountered.” DA at 58 (emphasis added). The concern that motivated the
question, then, was the possibility that while excavating the trenches --- which are
depicted in the solicitation, DA at 45 --- the contractor might encounter materials at
the bottom of the trench that must be removed, see DA at 39 (noting that
“unyielding” or “unstable” materials encountered at the bottom of trenches would
need to be removed and replaced with either “select granular material” or “initial
backfill”); see also DA at 35. The note on the trench detail refers to a rectangle
located below grade on the drawing, and the note reads: “IF UNSUITABLE SOIL
MATERIALS ARE ENCOUNTERED, REMOVE AND REPLACE WITH 12
INCHES ADDITIONAL BEDDING OR AS DIRECTED BY CONTRACTING
OFFICER.” DA at 45.
After a paraphrase of this note, the third sentence of Question 27 reads: “The
same applies to the buildings excavation, as indicated in paragraph 1.1.1
Excavation, in section 31-00-00 Earthwork, of the specifications.” DA at 58. What
was the same in paragraph 1.1.1 was the recognition that subgrade excavation
might be required, beyond the contours of each site. Discussing excavation
measurements, that paragraph stated that these “measurements will include
authorized excavation of rock . . . authorized excavation of unsatisfactory subgrade
soil, and the volume of loose, scattered rocks and boulders collected within the
limits of the work . . . .” DA at 26 (emphasis added).
With this backdrop, the rest of the question and answer may be understood.
The question continued: “Shouldn’t a separate item be created for the select backfill
material required to replace the excavated unsuitable material? It is impossible to
figure out a quantity at this time since we don’t know what the existing conditions
will [be] until excavation is started.” DA at 58 (emphasis added). Clearly, this
question concerns unsuitable material that is encountered subgrade --- the material
that would be removed by “additional excavation” below a trench, and “the same”
circumstance of “authorized excavation of unsatisfactory subgrade soil” below the
buildings. DA 58, 26. A quantity could not be estimated because the offerors did
not know whether any subgrade excavation would be needed. When the
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government responded that the offerors were “to assume unsuitable material is not
encountered,” DA at 58, this unambiguously meant that contractors need not
include a contingency in their bids for the possibility of encountering materials at
the bottom of excavation sites that would need to be removed and replaced. 8
Senate Builders contends that the first three sentences of Question 27 should
be ignored, since the last two sentences, as well as the agency’s answer, do not
specifically mention the subgrade excavation that the earlier sentences concern.
Pl.’s Reply at 3–4. But the term “unsuitable material” used in both the question
and the answer is referring to the “unsuitable material” that, when “encountered”
below grade, requires “additional excavation” and backfill material in its place. DA
at 58. The interpretation of procurement contracts obliges courts to step into the
shoes of a reasonable contractor, H.B. Mac, Inc. v. United States, 153 F.3d 1338,
1345 (Fed. Cir. 1998), and the Court does not believe that a reasonable contractor
would have interpreted the answer to Question 27 to mean that all soil on site
would be suitable for use as backfill, or that bidders should price the contract on the
assumption that this was so.
Part of Senate Builders’ misunderstanding seems to stem from its confusing
the term “unsuitable material” used in both Question 27 and its answer as a
shorthand for materials that would require additional excavation if encountered at
the bottom of the trenches, DA at 39, 45, 58, with “unsatisfactory materials” --- the
defined term in the solicitation for materials that did not meet the requirements for
use as backfill, DA at 28. The specification paragraph cited in Question 27 as
presenting “[t]he same” need for additional excavation and replacement is similarly
limited to “subgrade soil.” DA at 26. Question 27 and its answer did not concern
unsatisfactory materials generally, but the subset of these that required subgrade
excavation, which were labelled “unsuitable materials.” Moreover, plaintiff ’s
interpretation of the answer to mean that all material excavated is suitable for use
as backfill cannot neatly be squared with the answers to other questions contained
in Amendment 6, in which the government would not confirm that “all excavated
material,” crushed rock, or crushed concrete and brick could be used as backfill, and
referenced instead the specification requirements. See DA at 52–53 (Questions 2, 6
and 7).
The existence of geotechnical reports indicating that soil on-site did not meet
the specification requirements for use as backfill also undermines plaintiff ’s
proffered interpretation. DA at 22–23. There were two such reports, each one
8 The Court notes that the “General Excavation” paragraph from the “Execution”
part of the “Earthworks” specification also employed the word “encountered” in
reference to materials found subgrade, instructing the contractor to “[e]xcavate
unsatisfactory materials encountered within the limits of the work below grade and
replace with satisfactory materials as directed.” DA at 33–34 (emphasis added).
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based on a boring near one or the other building sites, and both indicated that the
soil at the sites did not meet the solicitation’s backfill requirements. The first
report indicated that the soil was classified as “GM,” a type of soil that did not meet
the requirements for use as backfill. DA at 22, 28. The soil test results contained in
the other report indicated soil that likewise failed to meet the solicitation’s
requirements. DA at 23 (noting that the soil had fines of 13%); DA at 28 (providing
that backfill must be either GW or SW); DA at 174 (providing a limit of 5% fines for
GW or SW soil).
Plaintiff argues that its interpretation of the answer to Question 27 is
“entirely consistent with all other terms of the plans and specifications,” referencing
in particular the provisions that dictate the reuse of excavated materials as backfill.
Pl.’s Mot. at 28; see also id. at 4–6. But while some provisions instruct the
contractor on the transportation, use, and storage of “satisfactory excavated
materials,” DA at 33–34, see also DA at 37–38, and even go so far as to warn the
contractor not to “waste any satisfactory excavated material without specific
written authorization,” id. at 38, this hardly constitutes a guarantee that
satisfactory excavated material will be sufficient to meet all backfill needs. Indeed,
several provisions were predicated on the contrary assumption, that satisfactory
excavated materials would not be sufficient.
For instance, the solicitation contained a statement that “no borrow
site/material is available at Picatinny Arsenal.” DA at 125. The solicitation also
contained a number of provisions requiring the contractor to obtain a source of
borrow material. See DA at 31–32 (requiring testing of proposed borrow site and
submission of test results to the agency for approval by the contracting officer); DA
at 33–34 (providing that backfill materials in excess of those available onsite shall
be obtained from a borrow area selected by the contractor). The solicitation
specified that “the Contractor is responsible for obtaining the right to procure
material, pay royalties and other charges involved, and bear the expense of
developing the sources, including rights-of-way for hauling from the owner” in
connection with obtaining materials from a borrow site. DA at 36. These provisions
would be meaningless if the answer to Question 27 meant that offerors could
assume all backfill needed would be generated from the excavation and should price
their offers accordingly.
The agency properly interpreted the answer to Question 27 as meaning that
offerors should assume there would be no additional subgrade excavation requiring
replacement backfill. Under this interpretation, had Senate Builders encountered
such “unsuitable material” below grade, it would have been entitled to
reimbursement for the cost of any additional satisfactory material it had imported
as backfill to replace this “unsuitable material.” See DA at 26 (stating “allowance
will be made on the same basis for selected backfill ordered as replacement”).
Plaintiff, however, has not made such a claim. Instead, its case rests on an
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interpretation of the answer to Question 27 that is not reasonable. For the reasons
stated above, defendant is entitled to summary judgment in this case. 9
III. CONCLUSION
Because all of Senate Builders’ legal theories depend on an unreasonable
interpretation of the answer to Question 27, the government’s motion for summary
judgment is GRANTED and plaintiff ’s motion for summary judgment is DENIED.
The Clerk is directed to enter judgment accordingly.
IT IS SO ORDERED.
s/Victor J. Wolski
VICTOR J. WOLSKI
Judge
9 As defendant is entitled to summary judgment concerning Count IV, the Court
need not address the government’s motion in the alternative for judgment on the
pleadings concerning that count.
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