Mw Builders, Inc. v. United States , 134 Fed. Cl. 469 ( 2017 )

In the United States Court of Federal Claims
No. 13-1023 C
Filed: October 18, 2017
**************************************** Anti-Deficiency Act, 31 U.S.C. § 1350;
* Breach of Contract;
* Contract Disputes Act,
MW BUILDERS, INC. f/n/a * 41 U.S.C. §§ 7101–7109;
MW BUILDERS OF TEXAS, INC., * Counterclaims, 28 U.S.C. § 2508;
* False Claims Act, 31 U.S.C. §§ 3729–
Plaintiff, * 3733;
* Federal Acquisition Regulation,
v. * 48 C.F.R. §§ 52.211-12 (Liquidated
* Damages), 52.242-14 (Suspension of
* Work), 52.249-10 (Contract Default);
THE UNITED STATES, * Good Faith and Fair Dealing;
* Special Plea In Fraud, 28 U.S.C. § 2514;
Defendant. * Tucker Act Jurisdiction, 28 U.S.C. § 1491;
* Unreasonable Delay;
* Waiver.
****************************************
Paul Harvey Sanderford, Sanderford and Carroll, P.C., Temple, Texas, Counsel for Plaintiff.
Alexander Orlando Canizares, United States Department of Justice, Washington, D.C., Counsel
for the Government.
POST-TRIAL MEMORANDUM OPINION AND FINAL ORDER 1
This case concerns the United States Army Corps of Engineers (“Army Corps”) attempt to
shift its contractual responsibility to make arrangements for permanent electrical utility services
that MW Builders, Inc. (“MW Builders”) needed to build an Army Reserve Center in Sloan,
Nevada. This imposed unnecessary construction delay and costs on MW Builders that the
Contracting Officer (“CO”) refused to pay. When MW Builders filed a Complaint in the United
States Court of Federal Claims, the Government alleged that the contractor’s claim was fraudulent.
As discussed herein, the court has determined that the Army Corps breached a
September 10, 2010 Contract with MW Builders and violated the duty of good faith and fair
dealing for which $418,961.90 is awarded, as compensable delay damages, together with statutory
1
On September 29, 2017, the court forwarded a sealed copy of this Post-Trial Memorandum
Opinion And Final Order to the parties to provide them the opportunity to correct any
typographical or similar errors. The parties had until October 16, 2017 to submit suggested
corrections. On October 18, 2017, the court issued a final Post-Trial Memorandum Opinion And
Final Order that incorporated all appropriate corrections.
interest. The Government’s counterclaims for fraud are dismissed, but the Government’s
affirmative defense of waiver concerning one of MW Builders’ subcontractors’ alleged pass-
through claim is granted.
To facilitate review of this Post-Trial Memorandum Opinion And Final Order, the court
has provided the following outline.
I. RELEVANT FACTUAL BACKGROUND.
A. In 2008, The United States Army Corps Of Engineers Began Designing An Army
Reserve Center To Be Built In Sloan, Nevada.
B. On June 11, 2010, The United States Army Corps Of Engineers Issued Solicitation No.
W912QR-09-R-0104 Requesting Proposals For A Firm, Fixed-Price Contract To Build
The Army Reserve Center In Sloan, Nevada.
C. On September 10, 2010, The United States Army Corps Of Engineers Awarded Contract
No. W912QR-10-C-0078 To MW Builders, Inc.
D. On December 6, 2010, MW Builders, Inc. Entered Into A Subcontract With Bergelectric
Corporation To Provide An Electrical System.
E. In 2011, MW Builders, Inc. Executed A Third Party Authorization Form And Design
Approval Agreement With NV Energy.
F. In March 2012, MW Builders, Inc. And The United States Army Corps Of Engineers
Had A Dispute Over The Execution Of A Line Extension Agreement With NV Energy.
G. On April 6, 2012, MW Builders, Inc. Notified The United States Army Corps Of
Engineers That The Construction Schedule Would Be Delayed, Because The Line
Extension Agreement With NV Energy Was Not Executed.
H. On April 19, 2012, The United States Army Corps Of Engineers Began To Negotiate A
Line Extension Agreement With NV Energy.
I. On July 12, 2012, The United States Army Corps Of Engineers Signed A Line
Extension Agreement With NV Energy.
J. On December 27, 2012, MW Builders, Inc. Submitted A Certified Claim To The
Contracting Officer For Costs Incurred As A Result Of The United States Army Corps
Of Engineers’ Failure To Timely Execute A Line Extension Agreement With NV
Energy.
K. On June 10, 2013, The Contracting Officer Issued A Final Decision Denying MW
Builders, Inc.’s Monetary Claim, But Granting A Non-Compensable Time Extension Of
146 Days For MW Builders, Inc. To Complete Construction Of The Army Reserve
Center In Sloan, Nevada.
L. On December 13, 2013, The Completed Army Reserve Center in Sloan, Nevada Was
Accepted By The United States Army Corps Of Engineers.
II. PROCEDURAL HISTORY.
2
III. DISCUSSION.
A. Subject Matter Jurisdiction.
B. Standing.
C. Plaintiff’s Claims Against The Government.
1. The September 10, 2010 Contract Required The United States Army Corps Of
Engineers To Sign The Line Extension Agreement With NV Energy.
a. Plaintiff’s Argument.
b. The Government’s Response.
c. The Court’s Resolution.
i. The September 10, 2010 Contract Contains A Latent Ambiguity Regarding
Which Party Was Responsible For Signing The Line Extension Agreement
With NV Energy.
ii. Extrinsic Evidence Of Intent Demonstrates That The United States Army Corps
Of Engineers Was Responsible For Signing The Line Extension Agreement
With NV Energy.
2. The United States Army Corps Of Engineers Violated The Duty Of Good Faith And
Fair Dealing Causing An Unreasonable Delay To The Project.
a. Plaintiff’s Argument.
b. The Government’s Response.
c. Plaintiff’s Reply.
d. The Government’s Sur-Reply.
e. The Court’s Resolution.
i. The United States Army Corps Of Engineers Violated The Duty Of Good Faith
And Fair Dealing.
ii. The United States Army Corps Of Engineers’ Conduct Caused An
Unreasonable Delay.
D. The Government’s Affirmative Defense And Counterclaims.
1. The Government’s Affirmative Defense Of Waiver.
a. The Government’s Argument.
b. Plaintiff's Response.
c. The Court’s Resolution.
2. The Government’s Counterclaims.
a. Subject Matter Jurisdiction.
b. Standing.
c. The Government’s Argument.
d. Plaintiff’s Response.
e. The Government’s Reply.
f. The Court’s Resolution.
i. Regarding The Anti-Fraud Provision Of The Contract Disputes Act.
3
ii. Regarding The Special Plea In Fraud.
iii. Regarding The False Claims Act.
IV. CALCULATION OF DELAY CAUSED BY THE UNITED STATES ARMY CORPS OF
ENGINEERS’ BREACH AND DAMAGES.
A. The Parties’ Scheduling Experts.
1. Plaintiff’s Scheduling Experts.
a. Mr. Neil W. Miltonberger.
b. Mr. Denny Lee.
2. The Government’s Scheduling Expert, Mr. Stephen Weathers.
3. The Scheduling Experts’ Critiques.
B. Plaintiff’s Damages Claim.
1. Plaintiff’s Claimed Amount.
2. The Government’s Response.
3. The Court’s Determination.
a. Regarding The Amount Of Delay.
b. Regarding The Daily Jobsite Overhead Rate.
c. Regarding The Materials And Equipment Costs.
d. Regarding Home Office Overhead.
e. Regarding Profit.
f. Regarding The Bond Fee.
g. Calculation Of Damages.
V. CONCLUSION.
* * *
I. RELEVANT FACTUAL BACKGROUND. 2
A. In 2008, The United States Army Corps Of Engineers Began Designing An
Army Reserve Center To Be Built In Sloan, Nevada.
In 2008, the United States Army Corps of Engineers (the “Army Corps”) began designing
an Army Reserve Center in Sloan, Nevada (the “Project”) for use by the Army Reserve 63rd
2
The facts discussed herein were derived from evidence adduced at the trial held on May
4–6, 9 and 10, 2016 in Austin, Texas (TR at 1–1329), together with the parties’ Joint Stipulations
Of Fact (Jt. Stip. ¶¶ 1–32). The witnesses for each party are identified in Court Attachment A. At
trial, Plaintiff’s Exhibits (PX 4–684) were admitted into evidence. TR at 6–7. The Government’s
Exhibits (DX 1–273), together with 95 Joint Exhibits (JX 1–95) also were admitted into evidence.
TR at 9–10. The Government also moved into evidence two Rule of the United States Court of
Federal Claims (“RCFC”) 30(b)(6) depositions: i.e., the April 12, 2016 Deposition of David
Cimpl, Chief Financial Officer for MMC Corporation (4/12/16 Cimpl Dep.); and the March 10,
2016 Deposition of Daniel “Sparky” Campbell, MW Builders’ Operations Manager (3/10/16
4
Regional Support Command (“63rd RSC”). TR at 16–17 (Probst); TR at 971 (Miller). During the
“Design Phase,” the Army Corps retained Mason & Hanger, an architecture and engineering firm,
to design and prepare construction specifications. Jt. Stip. ¶ 8. Mr. Jonathan Miller also served as
Mason & Hanger’s Project Manager. TR at 970–71 (Miller). Several Army Corps employees also
were involved:
• Hans Probst, the Branch Chief of the Instruction Division of the Army Reserve
Program Louisville District, served as the Project Manager, TR 15 (Probst);
• Robert Caskie, an employee from the Army Corps’ Los Angeles District Office, served
as the Geographical Administrative Contracting Officer, TR 370 (Caskie);
• Johnny Ringstaff, an employee from the Army Corps’ Louisville District Office, served
as an Administrative Contracting Officer, TR at 1118 (Ringstaff); and
• Tara O’Leary, an Army Corps Design Project Engineer, managed the Army Corps’
design contract with Mason & Hanger, TR at 1144–45 (O’Leary).
The Sloan, Nevada site selected by the Army Corps did not have any existing electric
utilities. Jt. Stip. ¶ 5. Therefore, the local electrical utility, Nevada Power Company, doing
business as NV Energy (“NV Energy”), was required to design a new utility line that would
connect the Project with existing power lines. PX 4 at 2; see also JX 2 (4/28/09 Meeting Minutes
reporting that “[u]tility coordination is critical”).
Mason & Hanger was responsible for contacting NV Energy about utility design and, on
May 6, 2009, NV Energy provided Mason & Hanger with a draft “Design Initiation Agreement,”
together with a memorandum that listed all the steps necessary for NV Energy to provide electrical
power to the Project. DX 6 at 4. NV Energy’s May 6, 2009 draft Design Initiation Agreement
provided that, “[p]rior to going to construction, [the applicant must] sign one or more of the
following agreements: Line Extension Agreement (LEA); Large Profit Service Agreement (LPS
Agreement); Contribution In Aid of Construction Agreement (CIAC Agreement); Non-
Refundable Construction Agreement (NRCA).” DX 6 at 5.
On May 14, 2009, a Mason & Hanger employee forwarded the Design Initiation
Agreement and attached memorandum to Mark Cutler, an employee of the 63rd RSC. DX 6 at 2.
On May 15, 2009, Mr. Cutler forwarded the agreement to Ms. O’Leary, the Army Corps Design
Project Engineer for the Project, and stated that the Design Initiation Agreement should “be signed
by the [Army] Corps,” because it “has a look on it that whoever signs it should really have a
warrant or be a contracting officer.” DX 6 at 1. But, Ms. O’Leary declined to authorize a
representative of the Army Corps to sign the Design Initiation Agreement. DX 6 at 1.
Consequently, neither the 63rd RSC, Mason & Hanger, nor the Army Corps signed the Design
Initiation Agreement that NV Energy required before it would commence utility work on the
Project. JX 4. Instead, Ms. O’Leary suggested that the Army Corps “place that requirement on
the construction contractor.” DX 6 at 1.
Campbell Dep.). TR at 12–13. The court also admitted two Court Exhibits (CX 1–2) into
evidence. TR at 773, 969.
5
On July 15, 2009, the 63rd RSC, the Army Corps, and Mason & Hanger decided that the
solicitation should include a requirement that the winning bidder must sign the Design Initiation
Agreement with NV Energy. DX 8 at 1; see also TR at 978 (Miller). The Army Corps and Mason
& Hanger, however, did not include any express requirement about the “Line Extension
Agreement” in the solicitation.
B. On June 11, 2010, The United States Army Corps Of Engineers Issued
Solicitation No. W912QR-09-R-0104 Requesting Proposals For A Firm, Fixed-
Price Contract To Build The Army Reserve Center In Sloan, Nevada.
On June 11, 2010, the Army Corps issued Solicitation No. W912QR-09-R-0104 for a firm,
fixed-price contract to build a new 800-person Army Reserve Center in Sloan, Nevada for use of
the 63rd RSC. Jt. Stip. ¶¶ 1, 14.
C. On September 10, 2010, The United States Army Corps Of Engineers
Awarded Contract No. W912QR-10-C-0078 To MW Builders, Inc.
On September 10, 2010, the Army Corps awarded a contract to construct the Project to
MW Builders, based on a $23,661,000.00 bid (the “Contract”). Jt. Stip. ¶ 3. Under the terms of
the Contract, the completed Army Reserve Center would consist of: a training center (the “Training
Building”); an organizational maintenance shop building; a unit storage building; and a pump
house and tank. Jt. Stip. ¶ 2. In addition, the Contract required MW Builders to follow the Contract
specifications and design prepared by Mason & Hanger. Jt. Stip. ¶ 8.
Because the Project’s location in Sloan, Nevada did not have electric utilities, the Contract
required MW Builders to provide both “temporary power” 3 and “permanent power.” 4 DX 14; TR
at 426–27 (Matson). Contract Drawing ES-002, however, addressed the “Division of
Responsibility (Power):”
NV Energy is the electric utility serving this project. The contractor is responsible
for providing all electric infrastructure, equipment, and wiring for the project unless
specifically noted as provided by NV Energy in the Division of Responsibility.
Contractor shall contact NV Energy prior to bidding to verify that NV Energy will
provide everything noted [in the contract drawing table]. Contractor is responsible
for providing a complete and working electrical system, and shall include all costs
in this bid.
* * *
3
The term “temporary power” describes the electricity required to operate construction
tools and equipment during construction, and can be supplied by generators that construction
contractors bring onsite. TR at 426 (Matson).
4
The term “permanent power” refers to electrical facilities that remain a permanent part of
the building once construction is complete. TR at 427 (Matson).
6
The contractor will be required to sign a Design Initiation Agreement with NV
Energy and pay fees as shown in the bid schedule. The contractor shall contact NV
Energy and determine the scope and costs of this work prior to submitting a
proposal. The contractor’s proposal shall include all work and all costs associated
with providing electrical power for the project. Contractor is responsible for all
guidelines and requirements within [NV Energy’s] Electric Service Requirements,
which can be found on their website listed below.
The construction contractor shall obtain written documentation of all transactions
with NV Energy and provide them to the [Army Corps.]
DX 14.
The Contract also included Line Item 0006, “Nevada Energy Service Fee,” in the amount
of $590,160.00, that “includes the fee required by [NV Energy] to bring electric service to the
site.” Jt. Stip. ¶ 9.
In addition, the Contract required MW Builders to develop and update project schedules
using a “Critical Path Method” (“CPM”), 5 of an “appropriate level of detail,” and provide monthly
schedule updates to the Army Corps. Jt. Stip. ¶ 17. During the course of the Project, the Army
Corps hired a third-party scheduling consultant, Management Solutions, LLC (“Management
Solutions”), to review MW Builders’ CPM schedule updates and either approve them or make
suggestions. TR at 512–13 (Stone).
On November 9, 2010, the Army Corps issued a Notice To Proceed. DX 20. MW
Builders’ work was to be completed in 660 days, i.e., by August 30, 2012. Jt. Stip. ¶ 7.
D. On December 6, 2010, MW Builders, Inc. Entered Into A Subcontract With
Bergelectric Corporation To Provide An Electrical System.
On December 6, 2010, MW Builders entered into a $4,579,943.00 subcontract with
Bergelectric Corporation (“Bergelectric”) to “provide a complete Electrical System in accordance
with [the Contract] plans and specifications.” JX 9 at 2, 14. Bergelectric also was required to
provide temporary power for the site, prior to the installation of permanent power. JX 9 at 14.
Attached to the December 6, 2010 subcontract was a “Partial Waiver And Release,” under which
Bergelectric waived “any and all mechanic’s liens or other liens or any other claims on any bonds
or any other claims whatsoever in connection with this Contract and with the Realty . . . reserving,
however, all lien rights for materials and labor furnished or performed after said period[.]” JX 9
at 49. During performance, Bergelectric also was required to sign periodic partial waivers and
5
The Critical Path Method is a scheduling approach wherein the “logic” of a construction
schedule describes the interdependency of each construction activity. Miltonberger Direct at 6.
The term “critical path” refers to the continuous chain of activities that establishes the minimum
overall project duration. Miltonberger Direct at 6. Thus, a delay in any critical path activity will
extend the final completion date. Miltonberger Direct at 6–7. The term “float” refers to the amount
of time an activity may be delayed before affecting the critical path of the project. Miltonberger
Direct at 7.
7
submit them to MW Builders, together with applications for payment. DX 124 (4/15/12 waiver);
see also TR 672 (Campbell).
E. In 2011, MW Builders, Inc. Executed A Third Party Authorization Form
And Design Approval Agreement With NV Energy.
On March 15, 2011, NV Energy informed MW Builders that “the [Project] Owner shall
complete a NV Energy Consultant/Third Party [Contact] Authorization Form before any activity
will be provided to deliver electric service to the [P]roject site.” DX 37 at 30. On that date, an
Army Corps representative signed a Third Party Authorization Form, indicating that MW Builders
was the “sole contact” between NV Energy and the Army Corps, but MW Builders did not have
authority to negotiate contract changes on behalf of the Army Corps. 6 PX 15. The Third Party
Authorization Form designated the Army Corps as the “Customer/Legal Owner” of the Project. 7
PX 15.
On March 29, 2011, NV Energy also was provided with a “Project Information Sheet,”
wherein MW Builders provided a description of the Project to assist NV Energy’s utility design
and listed the Army Corps as the “Customer/Legal Owner.” PX 567 at 4.
On April 15, 2011, NV Energy sent MW Builders a draft “Design Initiation Agreement.”
DX 37 at 3. This document authorized NV Energy to design a utility system to bring permanent
power to the Project. TR at 1027–28 (Creveling). The draft Design Initiation Agreement listed
the “US Army Corps of Engineers” as the “Applicant” for permanent power. DX 37 at 14. A
timeline titled, “Milestones And NPC Durations For Typical New Business Projects,” also was
included stating that, generally it took NV Energy 20 weeks before it could begin providing
permanent power, but it could take as long as 88 weeks, i.e., 616 days, depending on how long it
took to secure the necessary approvals and perform other preliminary design steps, such as site
inspection. DX 37 at 19.
On April 27, 2011, Michael Marti, then MW Builders’ Project Manager, 8 signed the Design
Initiation Agreement and returned it to NV Energy, as required by Contract Drawing ES-002. JX
19 at 10. On or about April 28, 2011, MW Builders hired Richard Rial of STF, Inc., as a consultant
to help coordinate with NV Energy. Jt. Stip. ¶ 12.
6
The unsigned version of the Third Party Authorization Form initially provided that MW
Builders would have the authority to “communicate and authorize all change requests.” JX 14 at
11. In the signed version “and authorize” was crossed out. PX 15.
7
The Project’s eventual owner and end-user was to be the 63rd RSC. But, the 63rd RSC
deferred to the Army Corps with respect to the Third Party Authorization Form, because the Army
Corps was “the construction agent/property holder until construction completion/beneficial
occupancy.” DX 37 at 30.
8
Mr. Marti managed the Project for MW Builders from December 2010 until November
2011. TR at 219–20 (Marti).
8
On July 25, 2011, Mr. Marti also executed the “Design Approval Agreement,” by which
MW Builders approved NV Energy’s preliminary design for the Project’s permanent power.
TR at 213 (Marti). The Design Approval Agreement stated that the “Applicant” for permanent
power was the “US Army Corps of Engineers.” JX 21 at 1.
After executing the Design Approval Agreement, MW Builders began the work necessary
to connect the Project site to the electric grid. TR at 213 (Marti). 9 The closest hookup to the grid
was an NV Energy-owned utility pole located outside of the Project site at the intersection of
Arville Street and Ray Way (the “Arville Hub”). PX 471. To connect to the Arville Hub, MW
Builders was required to build an underground “offsite ductbank” across privately owned land, but
Contract Drawing CD-100 showed an easement running from the Project site to the Arville Hub
across this property. PX 471; see also PX 267 (“The contract drawings identify a corridor down
the Arville alignment for the construction contractor to install underground ductbanks for both
comm[unications] and power.”). Once the ductbank work was completed, NV Energy was
required to “pull” a utility line from the Arville Hub to the Project site. PX 267. Subsequently,
however, the parties discovered that there were no easements that allowed MW Builders to
construct ductbanks and manholes along the route to the Arville Hub. PX 267. Thereafter, NV
Energy and the telephone company informed the Army Corps that they would not install their lines
without an easement in the underground ductbanks. PX 267.
On or about August 9, 2011, MW Builders informed the Army Corps that their part of the
electrical work could not continue without the required easements. PX 477 at GOV_00012196.
On September 14, 2011, MW Builders sent a letter informing the Army Corps that their failure to
secure the easements, which was their responsibility under the Contract, and was delaying MW
Builders’ work. JX 26. On September 22, 2011, Mr. Caskie, the Army Corps’ Geographical
Administrative Contracting Officer, sent an email to Mr. Probst, the Army Corps’ Project
Manager, to inform him that Army Corps made a “big goof” in not securing the easements, because
it was “prohibited from awarding a contract wherein [its] real estate interests [were] not covered”
and “the design should never have required work on lands that the Government does not have the
right to access.” PX 267. On October 29, 2011, MW Builders sent the Army Corps a Request for
Information (“RFI”) concerning the offsite ductbank easement. PX 481.
On December 5, 2011, MW Builders also sent another letter to the Army Corps,
complaining that “delays in the delivery of permanent power” could affect completion of the
Project. JX 31 at 1. MW Builders attributed these delays to the Army Corps’ failure to secure
utility easements, prior to the start of the construction. JX 31 at 1. Specifically, NV Energy
required an offsite easement to continue the underground electrical work and an “Access To
Equipment Agreement,” signed by the Project owner, to allow NV Energy employees to monitor
the equipment on site. JX 31 at 1. MW Builders warned that, unless permanent power was in
place by May 21, 2012, it could not complete the Project by August 30, 2012. JX 31 at 1.
9
In the interim, temporary power was supplied by onsite generators. TR at 687–88
(Campbell).
9
On February 9, 2012, an NV Energy representative sent an email to the Army Corps
requesting that a senior Army official sign the Access To Equipment Agreement. PX 18.
It took until February 28, 2012, for an Army Corps representative to respond to MW
Builders’ July 9, 2011 email and September 2011 follow up requesting that a senior Army official
sign the Access To Equipment Agreement. PX 18. On March 16, 2012, an Army Reserve Major
General signed a letter authorizing NV Energy to enter the Project site. JX 49.
F. In March 2012, MW Builders, Inc. And The United States Army Corps Of
Engineers Had A Dispute Over The Execution Of A Line Extension
Agreement With NV Energy.
To provide permanent power, NV Energy also required a signed “Line Extension
Agreement” (also called a “Rule 9 Agreement”). PX 4 at GOV_0010874 (“Prior to going to
construction, [the applicant must] sign one or more of the following agreements: Line Extension
Agreement (LEA)[.]”); DX 221 at 7 (providing that NV Energy “shall deliver the Rule 9
Agreement and final cost estimate to Applicant”); see also TR at 38–39 (Probst). 10 The Line
Extension Agreement governed the terms of payment. TR at 473 (Rial) (“A Line Extension
Agreement is the contract between the utility and the owner on how the money is to be collected,
the breakdown on the money, and then, also, how the moneys will be refunded[.]”). Typically, a
Line Extension Agreement had a term of five years and was executed by the utility and the owner
of the project, not the construction contractor. TR at 469–70 (Rial), 584 (Risse); see also TR at
1077–78 (Finley) (same). But, NV Energy’s Utility Electric Service Rule No. 9, governing Line
Extension Agreements between NV Energy and commercial customers, did not expressly require
that the owner of the property sign the Line Extension Agreement. DX 270; see also TR at 631
(Risse) (“I don’t think [Rule No. 9] required the ultimate end user to have to sign [the Line
Extension Agreement.”).
At trial, Katherine Creveling, NV Energy’s Senior Project Coordinator, testified that she
remembered preparing an initial draft of a Line Extension Agreement with the understanding that
MW Builders would sign the agreement, not a government agency. TR at 1001, 1004–05
(Creveling). Although Ms. Creveling was unable to locate a copy of the draft Line Extension
Agreement in this case, she remembered that an initial draft Line Extension Agreement was
rejected by MW Builders, because MW Builders was not the “applicant” for permanent power.
TR at 1005–06 (Creveling).
On March 13, 2012, Mr. Probst, the Army Corps Project Manager assigned to the Project,
hosted a conference call that included representatives of: the 63rd RSC; MW Builders; NV Energy;
and Mason & Hanger. JX 44 at 1 (3/13/12 email summary of conference call). During the
conference call, it was agreed that, by March 16, 2012, NV Energy “will have sent draft contract
for review to 63[rd] RSC (Jeffrey Reed[s])[11] and [the] contract will be executed between NV
10
The December 5, 2011 letter sent by MW Builders about permanent power delays did
not discuss the Line Extension Agreement. JX 31.
11
Mr. Jeffrey Reeds was an attorney that represented the 63rd RSC. TR at 71 (Probst).
10
Energy and 63[rd] RSC such that staging of equipment can start on or about 19 March 2012.” JX
44 at 1. At trial, NV Energy’s in-house attorney, Ms. Rebeca Risse, testified that the “draft
contract” identified in this email was the draft Line Extension Agreement to be signed by the 63rd
RSC. TR at 583 (Risse). During the March 13, 2012 telephone conference, the participants also
agreed that permanent power would be available at the Project site by April 9, 2012. JX 44 at 1.
On March 13, 2012, Mr. Rial also sent an email to Mr. Probst, wherein he explained that
NVE is in the process of preparing [the] Line Extension Contract for service to the
site. On today’s phone call some of the contact information changed. I made a
note that you wanted the contract in the name of “United States Army Reserve, 63d
Regional Support Command.” It was originally submitted to NV Energy as the
Army [Corps] of Engineers.
JX 45 at 2.
On March 14, 2012, Ms. Creveling sent an email to the 63rd RSC with a “Government
Line Extension Agreement.” JX 47 at 1. The Line Extension Agreement provided:
• the Agreement term was five years (PX 449(r) ¶ 14.1);
• the 63rd RSC would make a partially-refundable advance payment of $143,495.00
(PX 449(r) ¶ 1.3);
• the refundable portion (“the Allowance”) of the 63rd RSC’s advance payment
would be reduced via an “Allowance True-Up,” if the 63rd RSC’s demand for
electricity decreased within the 18 months after the Agreement was signed (PX
449(r) ¶ 3.5); and
• the Agreement would be governed by and construed, in accordance with the Nevada
law, and all actions beyond the scope of the Nevada Utility Commission’s
jurisdiction were to be filed, in either Nevada state court or in federal district court.
(PX 449(r) ¶ 13.4).
On that same date, “uncertainty” arose as to whether or not a representative of the 63rd RSC would
sign the Line Extension Agreement. TR at 81–82 (Probst). Mr. Probst opined via email to other
Army Corps officials that: “I anticipate [the Army Corps] will become involved in the review and
possibly signature on the contract with NV Energy depending [on] what the nature of the document
is.” JX 46 at 1–2.
11
Later in the day, Ronald L. Musgrave, an Army Corps Contracting Officer’s
Representative, 12 responded that
I really don’t know why MW cannot sign the contract as they a[re] paying the fee 13
and the cost for service until it is acceptable, but I don’t want to introduce another
issue in this process by asking [NV Energy] if that is acceptable. We did issue a
document naming MW as our proxy. Maybe Rich Rial can go through the backdoor
and get an answer.
PX 501 at GOV_00005390.
That evening, however, Mr. Musgrave reported that
MW’s agent, Rich Rial, has spoken with [NV Energy] and they stated MW cannot
sign the contract on behalf of the [Army] Corp[s] or [the Army] Reserve[s’ 63rd
RSC]. They say it is a 5 year contract and the end user needs to be a signatory. As
of now the contract being prepared by NV [Energy] is on hold until they get a
commitment as to whom will sign and the name to be shown on the contract.
JX 46 at 1.
On March 19, 2012, Mr. Probst hosted a second conference call with the Army Corps and
NV Energy. PX 60A. MW Builders, however, was not invited to participate. TR at 84–85
(Probst). During this conference, the participants “determined that each party will tentatively
consider an arrangement whereby the [Army Corps’] Construction Contractor–MW Builders may
enter the agreement with NV Energy since this supports the typical means [the Army Corps]
obtains electric serv[ice] for new projects and has provisions in the [Army Corps]-MW Builders
Construction Contract.” PX 60A. On that same date, MW Builders provided NV Energy with a
renewed “Project Information Sheet.” DX 88A. Unlike the earlier March 19, 2012 Project
Information Sheet, the March 20, 2012 version stated that the “Customer/Legal
Owner/Responsible Party on Contracts” was MW Builders, not the Army Corps. DX 88A.
On March 20, 2012, Mr. Musgrave learned that NV Energy “ha[d] issues with the
contract,” particularly with respect to the Line Extension Agreement’s five year term and
indemnification provision. PX 60B.
On March 21, 2012, MW Builders informed the Army Corps that it would not sign the Line
Extension Agreement, because it “flatly” exceeded the scope of the September 10, 2010 Contract,
unless the Contracting Officer (the “CO”) ordered it to do so. PX 528. On that same date, Mr.
Probst also hosted another telephone conference with NV Energy, but again excluded MW
12
Although Mr. Musgrave was located in Las Vegas, Nevada during the Project, his
primary responsibility was to “keep the [C]ontracting [O]fficer informed of what was going on”
and answer any of MW Builders’ requests for information. TR at 1038 (Musgrave).
13
The September 10, 2010 Contract required MW Builders to pay NV Energy a
$590,160.00 Service Fee. Jt. Stip. ¶ 9.
12
Builders. PX 60C. During that conference, the participants agreed to procure a letter from a
“competent contracting authority of US Army Corps of Engineers . . . confirm[ing] that the [Army
Corps] construction contract with . . . MW Builders requires MW Builders to provide a complete
and working electric system to serve the Army Reserve Center at Sloan Road.” PX 60C.
On March 22, 2012, Mr. Musgrave informed Mr. Probst that MW Builders still “will not
move forward without [a] directive from the [Army] Corps,” and suggested that the Army Corps
not engage in a “letter writing campaign regarding interpretation” with MW Builders, but instead
recommended that the Army Corps should “[m]ake them do it and let the chips fall where they
may.” PX 27.
On March 26, 2012, Mr. Probst hosted a third telephone conference that included MW
Builders, wherein the participants discussed obtaining a letter from the CO to NV Energy, to
explain MW Builders’ responsibilities regarding electrical power. DX 109 at 2. The issue of who
would sign the Line Extension Agreement was not resolved, but the permanent power delivery
date remained as April 9, 2012. TR at 185 (Probst); DX 109 at 2.
On March 28, 2012, Ms. Creveling, the NV Energy Senior Project Coordinator, sent an
email to the Army Corps stating that “I have not received the letter that states MW Builders can
sign the LEA [i.e., the Line Extension Agreement] contract yet.” PX 504. Johnny Ringstaff, an
Army Corps Administrative Contracting Officer, responded that “I am holding the letter since we
are not in a position to sign the agreement. Our contractor has taken exception to some of the
agreement. Once that it is resolved we will send the letter.” PX 504.
On March 29, 2012, MW Builders’ Operations Manager Greg Herriott, sent an email to
Mr. Ringstaff, reiterating that MW Builders remained opposed to signing the Line Extension
Agreement, because “[i]t appears that this Agreement is intended to be signed by the end user, as
it obligates the Applicant to a 5 year term of service . . . with the Utility and puts the Applicant at
risk of additional costs after the 18 month ‘Allowance true-up[.]’” DX 102 at 1. Mr. Herriott also
stated that the Line Extension Agreement permitted multiple signatories and suggested that MW
Builders could potentially sign the Line Extension Agreement along with either the Army Corps
or the 63rd RSC, provided that “certain language could be modified to limit MW’s responsibilities
after project completion and acceptance by the Government.” DX 102 at 1.
On April 2, 2012, Mr. Ringstaff provided Ms. Creveling with a letter, signed by the CO,
stating that MW Builders was: responsible for providing a “complete and working electric
system;” required to follow NV Energy’s guidelines; and responsible for paying the “fee required
by [NV] Energy to bring electric service to the site.” PX 502 at GOV_00005419. The April 2,
2012 CO letter, however, did not state that MW Builders was obligated to sign the Line Extension
Agreement or that MW Builders was authorized to sign it. PX 502 at GOV_00005419. On that
same date, Ms. Creveling responded that she had received the letter, but was “under the impression
from our meeting . . . that some things still need to be ironed out between MW Builders and the
Army before I can start my contract.” DX 109 at 1.
13
G. On April 6, 2012, MW Builders, Inc. Notified The United States Army Corps
Of Engineers That The Construction Schedule Would Be Delayed, Because
The Line Extension Agreement With NV Energy Was Not Executed.
On April 6, 2012, MW Builders sent a “Notice Of Potential Delay” to inform the Army
Corps of a “delay to the project schedule due to a lack of permanent power at the projected site
referenced above.” JX 58. Although MW Builders completed the “primary duct bank and installed
electrical switchgear in accordance with the Contract Documents and Nevada Energy
requirements,” there was still no permanent power at the site, because “the Line Extension
Agreement between the Government and Nevada Energy [was] not yet in place, subsequently
delaying permanent power installation and startup.” JX 58. Once the site had permanent power,
however, MW Builders still needed “additional time and compensation” to make up the time it
was unable to work, because of the delay caused by the Army Corps’ failure to sign the Line
Extension Agreement. JX 58.
H. On April 19, 2012, The United States Army Corps Of Engineers Began To
Negotiate A Line Extension Agreement With NV Energy.
On April 19, 2012, the Army Corps’ counsel, Mr. Kevin M. Finley, sent an email to Ms.
Creveling questioning the terms of the Line Extension Agreement. JX 60. Mr. Finley also shared
his concerns with NV Energy’s in-house counsel, Ms. Rebecca Risse. TR at 1066, 1073 (Finley).
On April 26, 2012, Mr. Finley also sent an email to Ms. Risse, to begin contract negotiations about
the Line Extension Agreement and summarized the issues, as follows:
The current Agreement is drafted for the end user to sign (the [Army] Reserve[‘s
63rd RSC]), however, it involves issues related to both construction, for which the
[Army] Corps is responsible, and operation, for which the [63rd RSC is]
responsible.
Our construction contract was set up for the contractor to handle this by including
a line item with MW Builders that provides an allowance in sufficient amount to
cover the ‘Nevada Energy Service Fee.’ It was done that way to try to avoid this
very situation of meeting both utility requirements and Government requirements.
The Corps did execute a third party authorization form to allow our contractor to
coordinate and exchange of information related to the design and I think that has
worked and Nevada Energy is satisfied with the design.
We also furnished a letter to Ms. Creveling dated 27 March 2012 explaining the
Contractor’s requirements under his contract with the Government. I believe
[b]ased on this [NV Energy] is willing to accept the Contractor’s signature on the
Agreement. However, the Contractor is having problem[s] with par. 14.1 (5 year
term of service and par. 3.5 (18 month allowance true up).
This has become a critical path item on our construction contract and we are looking
for a path forward.
14
The first request would be to modify the agreement in such a way that either the
contractor or the Corps can sign it[.]
JX 61 at 1–2. In the alternative, Mr. Finley requested that the Army Corps sign an agreement that
governed construction and the 63rd RSC sign an agreement that governed operations, after
construction was completed. JX 61 at 2.
At trial, Ms. Risse testified that she did not read Mr. Finley’s April 26, 2012 email, until
the following week and “didn’t really understand why [Mr. Finley] was making these various
requests,” because she thought “we were having the contractor [i.e., MW Builders] sign” the Line
Extension Agreement, based on the March 21, 2012 conference call. TR at 607–09 (Risse). In
her opinion, the email also was “strange,” because it appeared that Mr. Finley was attempting to
negotiate a contract on behalf of MW Builders, which was not his client. TR at 608–09 (Risse).
On April 30, 2012, Mr. Finley sent a follow-up email, because Ms. Risse did not respond to his
first one. JX 61 at 1.
On May 2, 2012, MW Builders again reiterated that it would not sign the Line Extension
Agreement. PX 31. On May 15, 2012, Mr. Probst arranged a telephone call between Ms. Risse
and Mr. Finley. DX 127. Thereafter, Ms. Risse and Mr. Finley began renegotiating the terms of
the Line Extension Agreement via email. JX 68 (email chain running from 5/17/12 to 6/8/12).
On May 23, 2012, MW Builders sent another letter to the Army Corps, entitled “Permanent
Power Delay,” emphasizing that the “lack of permanent power to the jobsite continues to have
significant cost and schedule impacts,” i.e., MW Builders was required to “build the entire project
with temporary power;” MW Builders was unable to start up and test equipment; and MW Builders
was unable to “install building finishes which require conditioned air in the buildings.” PX 44.
MW Builders attributed the permanent power delay to “the Government’s failure to timely acquire
the onsite and offsite easements and execute the necessary agreements with the electric utility
provider (Nevada Energy)[.]” PX 44. MW Builders also stated that it “fulfilled its contractual
obligations as relates to the power,” but NV Energy still would not “give[] a final price or begin
work until the Government execute[d] the Line Extension Agreement.” PX 44. MW Builders
advised the Army Corps that it had no alternative but to request the additional costs incurred as a
result of the delay. PX 44.
On May 25, 2012, Mr. Finley resumed email negotiations with Ms. Risse, requesting that
the Line Extension Agreement be modified, so that its terms were enforceable and consistent with
federal law. JX 68 at 4–5. Negotiations continued over the next four weeks. PX 500. On May
29, 2012, Mr. Finley told Ms. Risse: “I would just like to get there sooner than later because we
are looking at having to bring in generators so that construction can continue. That is a costly
proposition that we would like to avoid.” JX 68 at 4. Mr. Finley also explained that “I think the
main issue is indemnity (limitations of damages)” and asked Ms. Risse to provide him with a
“sample” agreement that NV Energy previously entered into with a military customer. JX 68 at 4.
On June 4, 2012, Mr. Finley sent another email to Ms. Risse, wherein he stated that “I haven’t
received any reply to my [emails] of May 25 or May 29[.]” JX 68 at 3. On June 7, 2012, Ms.
Risse responded, opposing Mr. Finley’s proposed change to the enforceability provision. JX 68
at 3.
15
On June 15, 2012, Ms. Risse sent another email to Mr. Finley, describing his proposed
changes, but complained: “NV Energy has already compromised by agreeing that the
government’s contractor can be the applicant instead of the [g]overnment.” DX 143 at 2. Ms.
Risse also questioned why Mr. Finley wanted to change the Line Extension Agreement’s choice
of law provision, “given that NV Energy’s counterparty isn’t the federal government but rather the
government’s contractor.” DX 143 at 2.
On June 18, 2012, Mr. Finley responded:
Now, I am confused. I was under the impression that NV Energy would not accept
the contractor and was even balking at accepting the Corps of Engineers versus the
Reserves (the end user). What I have been trying to draft is an agreement between
the [Army] Corps and NV Energy. We seem to be working toward different goals.
DX 143 at 1. On that same date, Ms. Risse replied that she too was confused, because her
understanding was that the Line Extension Agreement was to be between NV Energy and MW
Builders. PX 500 at GOV_00005315. So, on June 20, 2012, Ms. Risse sent an email to MW
Builders’ in-house counsel, Harold Mitts, stating that, “[i]t was NV Energy’s understanding that
MW Builders was going to sign” the Line Extension Agreement. JX 72 at 1.
On June 21, 2012, Mr. Finley and Ms. Risse arranged for a telephone conference call with
Mr. Mitts. JX 75 at 1. At trial, Ms. Risse testified that it was only after this call that she actually
understood that MW Builders was not signing the Line Extension Agreement. TR at 597–98
(Risse). Thereafter, Ms. Risse resumed negotiations with Mr. Finley. JX 75 at 1 (6/21/12 email
from Ms. Risse to Mr. Finley with proposed changes to Line Extension Agreement); see also TR
at 598–99 (Risse). Negotiations continued from June 21, 2012 until July 7, 2012, during which
“drafts were exchanged quickly,” because the parties were no longer confused as to who was
actually signing the agreement. TR at 598–600, 626 (Risse). 14 While Mr. Finley and Ms. Risse
were negotiating the Line Extension Agreement, Mr. Probst initiated discussion with other Army
Corps officials about the pragmatic impact of the delay:
Requirement is for an electric utility line extension with Nevada Energy for
permanent primary power to the project site. Project is experiencing delay and
additional cost, a condition that is frustrating [the Army Corps’] customer [the 63rd
RSC. The Army Corps’] contract requires the contractor to provide a complete and
working electrical system. The contractor has refused to sign the NV Energy Line
Extension Agreement (LEA) claiming the conditions contained therein are meant
for the owner, [i.e., the Government.] NV Energy advises that the . . . approved
LEA is required and if not signed, NV energy will not provide the line extension.
NV energy has advised contractor can act on behalf of the owner ([the Army
Corps]) and have accepted [a CO] letter to that effect. The contractor continues to
object to signing the LEA and after investigation into the [Army Corps/MW
Builders] construction contract, [the CO] is unwilling to direct the contractor to
14
Ms. Risse testified that “once we understood that it was going to be the Government who
signed it, I thought it went pretty quickly—extremely quickly.” TR at 633 (Risse).
16
sign the NV Energy LEA as the [CO] feels the terms are not enforceable and would
expose the Government to a potential Request for Equitable Adjustment (REA) and
a contract ratification if an REA was upheld.
PX 294 (emphasis added).
On July 7, 2012, Ms. Risse sent a draft Line Extension Agreement to Mr. Finley. JX 83 at
1. At trial, Ms. Risse testified that the parties “[came] to an agreement on all of the terms” by that
date. TR at 600 (Risse).
I. On July 12, 2012, The United States Army Corps Of Engineers Signed A
Line Extension Agreement With NV Energy.
On July 12, 2012, the Army Corps signed the Line Extension Agreement. Jt. Stip. ¶ 25.
On July 17, 2012, MW Builders paid NV Energy’s service fee. Jt. Stip. ¶ 26. On July 23, 2012,
NV Energy signed the Line Extension Agreement. Jt. Stip. ¶ 25.
On September 19, 2012, the Army Corps was notified that MW Builders was preparing to
submit a claim for costs 15 incurred by the Army Corps’ failure to sign the Line Extension
Agreement. DX 181 at 1.
By September 26, 2012, NV Energy was supplying permanent power to all buildings at the
Project, except the pump house. Jt. Stip. ¶ 27. On October 12, 2012, MW Builders informed its
subcontractors that the Project had permanent power and directed them to “return to the project
and complete all remaining work immediately.” JX 85.
In early October 2012, MW Builders began to install climate sensitive materials, including
Acoustic Ceiling Tiles (“ACT”) and Vinyl Composition Tiles (“VCT”), inside the Training
Building. PX 343 at 3. This work could not have been performed without permanent power,
required for the Training Building’s heating, ventilation, and air conditioning (“HVAC”) system
to function. PX 343 at 3. 16
15
During the Project, MW Builders’ Accounting Department used a cost accounting
computer system known as “COMET.” 4/12/16 Cimpl Dep. at 17–18. COMET created “job cost
summaries” and prepared monthly financial statements submitted to MW Builders’ parent
corporation, MMC Corporation (“MMC”). 4/12/16 Cimpl. Dep. at 10–16, 18, 82–83. Job cost
summaries were used to track costs and compare them to budget estimates. TR at 1167–68
(Campbell). On April 12, 2016, the Government deposed David Cimpl, the Chief Financial
Officer of MMC Corporation, about MMC’s and MW Builders’ accounting methods. 4/12/16
Cimpl Dep. at 10. On May 4, 2016, the court admitted this deposition into evidence. ECF No. 97.
16
But, the pump house did not have permanent power on October 12, 2012, requiring MW
Builders to install “a temporary generator to supply power to the Pump House pumping system”
to continue work. JX 85. NV Energy did not provide power to the pump house until January 7,
2013. DX 218 at 3.
17
J. On December 27, 2012, MW Builders, Inc. Submitted A Certified Claim To
The Contracting Officer For Costs Incurred As A Result Of The United States
Army Corps Of Engineers’ Failure To Timely Execute A Line Extension
Agreement With NV Energy.
On December 27, 2012, MW Builders submitted a certified claim to the CO requesting a
169-day time extension and $2,139,215.00 for “costs incurred” by MW Builders as a result of
delay caused by “the Government’s failure to execute the required ‘Line Extension Agreement’
with Nevada Energy . . . by the date required to allow [NV Energy] to bring power to the jobsite
as scheduled.” JX 88 at 1–2. MW Builders again stated that it was not responsible for signing the
Line Extension Agreement. JX 88 at 1. MW Builders’ claim included ten subcontractor claims
in the amount of $985,874.00, including Bergelectric’s claim for $296,300.00. JX 88 at 3. MW
Builders’ claim itemized: (1) $181,678.00 for “Material & Equipment” costs; (2) $14,716.00 for
tax reimbursement; (3) $19,639.00 for overhead; (4) $17,283.00 for general contractor’s profit; (5)
$687,999.00 for “Jobsite Overhead Costs;” 17 (6) $192,998.00 for “Home Office Overhead;” (7)
$16,381.00 for insurance reimbursement; and (8) a $22,647.00 bond fee. JX 88 at 3. In submitting
the certified claim, MW Builders’ President, Jason Evelyn, represented that
this claim is made in good faith; that the supporting data are accurate and complete
to the best of my knowledge and belief; that the amount requested accurately
reflects the contract adjustment for which the Contractor believes the Government
is liable; and that I am duly authorized to certify the claim on behalf of the
Contractor.
JX 88 at 1; see also 41 U.S.C. § 7103(b). 18
17
The jobsite overhead costs were derived by multiplying a “daily cost rate” of $4,071.00
by 169 days. JX 88 at 3 (Claims Worksheet); TR at 1178–80 (Campbell). The “daily cost rate”
was ascertained, based upon a five-page work sheet (the “General Conditions Worksheet”) that
MW Builders submitted together with the certified claim; no other underlying documentation was
submitted to support the daily cost rate for jobsite overhead. JX 88 at 6–10 (Claims Worksheet);
see also TR at 1175, 1178–80 (Campbell).
18
Section 7103(b) of the Contract Disputes Act (“CDA”) provides that:
(1) Requirement generally.–For claims of more than $100,000 made by a
contractor, the contractor shall certify that–
(A) the claim is made in good faith;
(B) the supporting data are accurate and complete to the best of the
contractor's knowledge and belief;
18
The General Conditions Worksheet was prepared by MW Builders’ Operations Manager
Mr. Daniel “Sparky” Campbell in November 2012; the December 27, 2012 claim letter was
prepared by Mr. Greg Herriott, an MW Builders employee and Operations Manager. TR at 1171–
72, 1174 (Campbell).
On January 3, 2013, MW Builders submitted a request to the Army Corps for
reimbursement of the fee MW Builders paid to NV Energy. DX 200 at 2.
On May 15, 2013, MW Builders submitted a revised certified claim (“Amended Certified
Claim”) to the CO, wherein MW Builders again stated that it was not required to sign the Line
Extension Agreement, because certain provisions about the conveyance of property rights could
only be provided by the Project site owner. JX 89 at 1–2. MW Builders added that the “[t]he
failure of the Government to timely execute the Line Extension [A]greement implicated the
Government[’]s general duty to cooperate and to do nothing that unreasonably hinders the
contractor’s performance.” JX 89 at 2. MW Builders also revised and increased the claim amount
to $2,562,049.00, but did not change any of the estimated costs. JX 89 at 2.
(C) the amount requested accurately reflects the contract adjustment for
which the contractor believes the Federal Government is liable; and
(D) the certifier is authorized to certify the claim on behalf of the
contractor.
(2) Who may execute certification.–The certification required by paragraph (1)
may be executed by an individual authorized to bind the contractor with respect to
the claim.
(3) Failure to certify or defective certification.–A contracting officer is not
obligated to render a final decision on a claim of more than $100,000 that is not
certified in accordance with paragraph (1) if, within 60 days after receipt of the
claim, the contracting officer notifies the contractor in writing of the reasons why
any attempted certification was found to be defective. A defect in the certification
of a claim does not deprive a court or an agency board of jurisdiction over the
claim. Prior to the entry of a final judgment by a court or a decision by an agency
board, the court or agency board shall require a defective certification to be
corrected.
41 U.S.C. § 7103(b).
19
K. On June 10, 2013, The Contracting Officer Issued A Final Decision Denying
MW Builders, Inc.’s Monetary Claim, But Granting A Non-Compensable
Time Extension Of 146 Days For MW Builders, Inc. To Complete
Construction Of The Army Reserve Center In Sloan, Nevada.
On June 10, 2013, the Army Corps CO issued a final decision denying MW Builders’ claim
for both the company and its subcontractors, but granted a non-compensable time extension of 146
days. DX 218 at 4. Therein, the CO also found that, although significant delay incurred as a result
of difficulties surrounding the execution of the Line Extension Agreement, it “was beyond the
control of the Contractor or the Government,” and therefore was “excusable, but not
compensable,” pursuant to the Federal Acquisition Regulation (“FAR”). DX 218 at 1–3;
52.249-10.
With respect to the apportionment of responsibility, although Contract Drawing ES-002
“places much of the responsibility of arranging for power to the site on the Contractor,” it “does
not specifically place responsibility of the Line Extension Agreement on the Contractor.” DX 218
at 4. As such, NV Energy’s delay in providing electrical power to the Project “was beyond the
Contractor’s control.” 19 DX 218 at 4. Therefore, the Army Corps was not entitled to assess
liquidated damages 20 against MW Builders for the 146 days of delay that occurred between March
14, 2012, when NV Energy first sent the Government a proposed Line Extension Agreement, and
July 12, 2012, when the Army Corps signed the agreement. DX 218 at 3. And, MW Builders was
not entitled to recover costs incurred in connection with the delay by the Army Corps, because the
entirety of the delay was attributable to NV Energy, a “third party over whom the Government had
no control.” DX 218 at 4.
L. On December 13, 2013, The Completed Army Reserve Center in Sloan,
Nevada Was Accepted By The United States Army Corps Of Engineers.
On December 13, 2013, the Army Reserve accepted the completed Project from MW
Builders. DX 225. The Project’s original completion date was August 30, 2012. Jt. Stip. ¶ 7.
During the course of the Project, however, the parties made 85 contract changes and extended the
completion date by 413 days, extending the contract completion date to October 17, 2013.
DX 241.
19
The FAR provision governing contractor default for fixed-price construction contracts
provides: “[t]he Contractor’s right to proceed shall not be terminated nor the Contractor charged
with damages under this clause, if . . . [t]he delay in completing the work arises from unforeseeable
causes beyond the control and without the fault or negligence of the Contractor.” 48 C.F.R.
§ 52.249-10(b)(1).
20
The FAR provision governing liquidated damages in construction contracts provides:
“[i]f the Contractor fails to complete the work within the time specified in the contract, the
Contractor shall pay liquidated damages to the Government[.]” 48 C.F.R. § 52.211-12.
20
II. PROCEDURAL HISTORY.
On December 27, 2013, MW Builders filed a Complaint (“Compl.”) in the United States
Court of Federal Claims: Count One alleged that the Army Corps breached its duty to cooperate;
Count Two alleged that the Army Corps caused an unreasonable delay; and Count Three alleged
that the Contracting Officer improperly classified the delay as “non-compensable.” ECF No. 1.
As a result, MW Builders alleged that it was owed “a compensable time extension of at least 169
days,” as well as $2,562,094.00 in damages. ECF No. 1.
On May 13, 2014, the Government filed an Answer. ECF No. 8.
On July 7, 2014, the parties filed a Joint Preliminary Status Report. ECF No. 9. On July
17, 2014, the court issued a Scheduling Order allowing fact discovery to proceed from July 16,
2014 until July 15, 2015. ECF No. 10. On July 24, 2014, the Government filed an Unopposed
Motion For Entry Of A Discovery Order Concerning Materials As To Which Privileges May Be
Asserted, that the court granted the same day. ECF Nos. 11–12.
On January 12, 2015, the Government filed a Motion To Compel Production Of
Documents. ECF No. 13. That motion requested the court to order MW Builders to respond to
the Government’s First Set Of Document Requests. ECF No. 13 at 1. The court convened
telephone status conferences on January 26, 2015 and March 23, 2015. During the March 23, 2015
Status Conference, the Government voluntarily withdrew the January 12, 2015 Motion To Compel.
See ECF No. 14.
On July 14, 2015, the parties filed a Joint Status Report And Joint Motion To Enlarge The
Discovery Period until October 30, 2015. ECF No. 15. That same date, the court granted the
parties’ July 14, 2015 Motion. ECF No. 16.
On September 2, 2015, the parties filed a Status Report And Second Joint Motion To
Enlarge The Discovery Period until January 13, 2016. ECF No. 17. On September 9, 2015, the
parties filed a Joint Motion For Scheduling Order, including with a proposed schedule. ECF No.
18. On September 10, 2015, the court issued an Order adopting the parties’ proposed schedule.
ECF No. 20.
On December 30, 2015, the Government filed a Status Report And Consent Request For
Status Conference Regarding Productions Of Documents And Trial Issues. ECF No. 23.
On January 6, 2016, the court convened a telephone status conference. On January 8, 2016,
the parties filed a Joint Motion For Scheduling Order. ECF No. 24. The same date, the court
entered that Order. ECF No. 25. On January 29, 2016, the Government filed a Motion In Limine
To Exclude Testimony Of Witnesses Not Properly Disclosed. 21 ECF No. 26.
On February 17, 2016, the Government filed a Motion For Leave To Amend Its Answer
To Assert Counterclaims And Affirmative Defenses, together with a proposed Amended Answer
21
The Government moved to exclude the expert testimony of: Eric Stone, of MW Builders,
Inc.; Justin Knippel, of Bergelectric Corporation; and Larry Campbell, of Desert Fire Protection,
L.P., as they were listed on MW Builders, Inc.’s Designation Of Experts as “non-retained experts.”
21
(“Gov’t Amend. Answer”). ECF No. 27. The February 17, 2016 Amended Answer asserted
counterclaims, based on: the Special Plea In Fraud, 28 U.S.C. § 2514; the anti-fraud provision of
the Contract Disputes Act, 41 U.S.C. § 7103(c)(2); and the False Claims Act, 31 U.S.C. §§ 3729–
3733. ECF No. 27 at 1. The Amended Answer also asserted the affirmative defenses of accord
and satisfaction, and waiver. ECF No. 27 at 1.
On February 22, 2016, MW Builders filed a Response To Defendant’s Motion In Limine.
ECF No. 29. On February 23, 2016, the court convened a telephone status conference. That same
date, the Government filed a Status Report that detailed ongoing discussions with MW Builders to
resolve the Government’s January 29, 2016 Motion In Limine and requested that the court order
MW Builders to produce any remaining waivers or releases. ECF No. 30 at 5. The Government
also requested the court’s leave to take a deposition of one of MW Builders’ non-retained expert
witnesses, pursuant to Rule of the United States Court of Federal Claims (“RCFC”) 30(b)(6). ECF
No. 30 at 5. On February 23, 2016, MW Builders filed a Status Report Noting The Parties’
Agreement Pertaining To The Matters Subject To The Status Conference Scheduled For February
23, 2016. ECF No. 31.
On March 2, 2016, the Government filed a Status Report Regarding Plaintiff’s Expert
Disclosure. ECF No. 32. That same date, MW Builders filed a Status Report Regarding Plaintiff’s
Expert Disclosure. ECF No. 33. On March 4, 2016, the Government filed a Status Report,
indicating that the parties reached an agreement and the Government was withdrawing the January
29, 2016 Motion In Limine. ECF No. 34.
On March 7, 2016, MW Builders filed a Response To Defendant’s February 17, 2016
Motion To Amend. ECF No. 35. On March 15, 2016, the Government filed a Reply. ECF No.
36. That same date, MW Builders filed a Sur-Response To Defendant’s Motion (ECF No. 37),
and the Government filed a Response To Plaintiff’s Sur-Response (ECF No. 38). On that date, the
court issued an order granting the Government’s February 17, 2016 Motion To Amend. ECF No.
39.
On March 24, 2016, MW Builders filed: a Motion To Dismiss Defendant’s Counterclaims,
Pursuant To Rule 12(b)(6), And Alternative Answer To Defendant’s Counterclaims (ECF No. 42);
a Motion For Leave To Supplement Its Expert Report, Initial Exhibit List, And Initial Witness List
To Respond To The Government’s Late-Filed Fraud Counterclaim (ECF No. 43); and a Motion
For Authorization Of Service Of Subpoenas More Than 100 Miles From The Place Of Trial (ECF
No. 44); and a Request For A Status Conference (ECF No. 45).
On March 25, 2016, the Government filed Responses To MW Builders’ March 24, 2016
Motion For Authorization Of Service Of Subpoenas and March 24, 2016 Motion To Supplement.
ECF Nos. 46–47. The Government also included a Cross-Motion In Limine To Deny Introduction
Of Late Produced Documents At Trial. ECF No. 47. That same date, MW Builders filed a Reply.
ECF No. 48.
On March 28, 2016, MW Builders filed a Reply to the Government’s March 25, 2016
Response And Cross-Motion In Limine. ECF No. 49. On March 29, 2016, the Government filed
a Reply In Support Of The Cross-Motion In Limine. ECF No. 50.
22
On March 29, 2016, the Government filed a Motion For Extension Of Time To Serve
Responses To Plaintiff’s Interrogatories And Document Requests And For Leave To Take
Deposition. ECF No. 51. That same date, the court issued an Order granting MW Builders’ March
24, 2016 Motion For Leave To Supplement and denying the Government’s March 25, 2016 Cross-
Motion In Limine. ECF No. 52.
On March 31, 2016, the Government filed a Status Report Regarding Motion For Extension
Of Time And For Leave To Take Deposition, explaining it was withdrawing the March 29, 2016
request for an extension of time to respond to MW Builders’ interrogatories, but still was seeking
leave to take a RCFC 30(b)(6) deposition of an unnamed fact witness. ECF No. 54. On April 5,
2016, the court issued a Scheduling Order that provided additional deadlines for discovery
production. ECF No. 59. On April 8, 2016, MW Builders filed a Pre-Trial Submission that
detailed MW Builders’ proposed findings of fact, proposed conclusions of law, witness list, exhibit
list, and preliminary objections. ECF No. 62. On April 12, 2016, MW Builders filed a
Supplemental Disclosure Regarding Its Pre-Trial Filings that included an exhibit MW Builders
inadvertently omitted from the April 8, 2016 Pre-Trial Submission. ECF No. 63.
On April 14, 2016, the Government filed a Status Report And Request For Status
Conference to resolve a dispute regarding the trial schedule. ECF No. 64. On April 15, 2016,
MW Builders filed a Response to the Government’s April 14, 2016 Status Report. ECF No. 65.
On April 18, 2016, MW Builders filed the written direct testimony of Mr. Neil W.
Miltonberger (“Miltonberger Direct”) and attachments (“Miltonberger Direct Atts. 1–6.5”),
together with the written direct testimony of Mr. Denny Lee (“Lee Direct”) and a Second
Supplemental Designation of Experts. ECF No. 68. On April 19, 2016, the Government filed
Proposed Findings Of Fact And Conclusions Of Law. ECF No. 76.
On April 22, 2016, the Government filed a Motion In Limine To Preclude Privileged Trial
Testimony Of Attorney Witnesses (ECF No. 78) and a Motion In Limine To Admit Into Evidence
Plaintiff’s Binding Admissions (ECF No. 79). On that same date, MW Builders filed a Motion In
Limine (ECF No. 80) to exclude the expert testimony of Mr. Stephen Weathers and a Motion In
Limine Regarding Any Evidence That Supports The Government’s Fraud Allegations (ECF No.
81).
On April 25, 2016, the Government filed a Motion Regarding Procedural Matters At Trial,
requesting that the court enter a proposed order governing witness disclosure. ECF No. 82. The
Government also filed a Response to MW Builders’ April 22, 2016 Motion To Exclude Expert
Testimony. ECF No. 83. On that same date, MW Builders filed a Response to the Government’s
April 22, 2016 Motion To Exclude Privileged Testimony (ECF No. 84), as well as a Response to
the Government’s April 22, 2017 Motion To Admit Plaintiff’s Binding Admissions (ECF No. 85).
On April 26, 2016, the parties filed a Joint Stipulations Of Trial And Pre-Trial Procedure.
ECF No. 86. MW Builders also filed a Response to the Government’s April 25, 2016 Motion
Regarding Procedural Matters. ECF No. 87. On that same date, the Government filed a Response
to MW Builders’ April 22, 2016 Motion To Exclude Evidence Related To Fraud Claims. ECF
No. 88. On that date, the Government also filed the Written Direct Testimony of Mr. Stephen
Weathers, together with seven tabs (“Weathers Direct Tabs A–G”). ECF No. 89.
23
On April 27, 2016, the court issued an Order denying both of the Government’s April 22,
2016 Motions In Limine, and both of MW Builders’ April 22, 2016 Motions In Limine. ECF No.
90. The court also denied the Government’s April 25, 2016 Motion Regarding Procedural Matters,
as moot. On the same date, the Government filed a Revised Exhibit List. ECF No. 91. On April
28, 2016, MW Builders filed a Third Supplemental Exhibit List. ECF No. 92. On the same date,
the parties filed a Joint Stipulations Of Fact. ECF No. 93.
On May 2, 2016, MW Builders filed a Fourth Amended Exhibit List. ECF No. 94. On the
same date, the Government filed a Response to MW Builders’ April 28, 2016 Third Supplemental
Exhibit List and May 2, 2016 Fourth Amended Exhibit List. ECF No. 95.
A trial took place from May 4, 2016 to May 10, 2016 in Austin, Texas. TR at 1–1329. On
May 9, 2016, and at the request of the court, the Government filed the Updated Written Direct
Testimony of Mr. Stephen Weathers (“Weathers Rev. Direct”). ECF No. 96. At the close of trial,
the court left the record open to allow both parties’ experts to file supplemental damages testimony,
if they wished to do so. TR at 1314.
On May 27, 2016, the Government filed an Unopposed Motion To Admit Into Evidence
Deposition Exhibits, i.e., the depositions of Mr. David Cimpl and Mr. Daniel Campbell. ECF No.
97.
On June 14, 2016, the court granted the Government’s May 27, 2016 Motion and issued a
Scheduling Order setting a deadline of August 1, 2016 for MW Builders to file a Post-Trial
Proposed Findings of Fact And Memorandum Of Law. ECF No. 108 at 1. The Order also set a
deadline of September 1, 2016 for the Government to file the same. ECF No. 108 at 1.
On July 13, 2016, MW Builders filed an Unopposed Motion For Leave To Extend Post-
Trial Briefing Deadlines to August 15, 2016 and for the Government’s extension to September 15,
2016. ECF No. 110. On July 14, 2016, the court granted MW Builders’ July 13, 2016 Motion.
On August 4, 2016, the Government filed a Response to MW Builders’ March 24, 2016
Motion To Dismiss Counterclaims. ECF No. 111. On August 17, 2016, MW Builders filed a
Motion To Enter Additional Evidence, i.e., Mr. Neil Miltonberger’s Supplemental Expert Report.
ECF No. 114. On August 18, 2016, the parties filed a Joint Motion For Entry Of Order On Trial
Exhibits. ECF No. 115. On August 19, 2016, MW Builders filed its Post-Trial Proposed Findings
Of Fact And Memorandum Of Law (“Pl. Post Tr. Br.”). ECF No. 116.
On August 26, 2016, MW Builders filed a Motion To Enter PX 679, PX 680, and PX 681
into evidence. ECF No. 118. The August 26, 2016 Motion asserted that the Government waived
any objections to these exhibits at trial and failed to show how it would be prejudiced by their
admission. ECF No. 118 at 2–6.
On September 2, 2016, the Government filed Responses To MW Builders’ August 26,
2016 Motion (ECF No. 120) and MW Builders’ August 17, 2016 Motion To Enter Additional
Evidence (ECF No. 121). On September 9, 2016, MW Builders filed a Reply In Support Of The
August 17, 2016 Motion To Enter Additional Evidence. ECF No. 122.
On December 8, 2016, after receiving 80 days of extensions, the Government filed its
Proposed Findings Of Fact And Conclusions Of Law (“Gov’t Post Tr. Br.”). ECF No. 127.
24
On December 19, 2016, MW Builders filed a Motion For Leave To File Additional Post-
Trial Briefing in response to the Government’s December 8, 2016 Post-Trial Brief. ECF No. 128.
On December 21, 2016, the Government also filed a Response To MW Builders’ December 19,
2016 Motion. ECF No. 129. On the same date, the court granted MW Builders’ December 19,
2016 Motion. ECF No. 130. On January 30, 2017, MW Builders filed a Reply To The
Government’s December 8, 2016 Proposed Findings Of Fact And Conclusions Of Law (“Pl. Post
Tr. Reply Br.”). ECF No. 131.
On February 28, 2017, the Government filed a Motion For Leave To File A Reply Brief.
ECF No. 132. On March 21, 2017, the court issued an Order granting the Government’s February
28, 2017 Motion. ECF No. 133. On March 31, 2017, the Government filed a Reply To Plaintiff’s
January 30, 2017 Brief (“Gov’t Post Tr. Reply Br.”). ECF No. 134.
On June 9, 2017, the court issued an Order granting MW Builders’ August 17, 2016 Motion
To Enter Additional Evidence and MW Builders’ August 26, 2016 Motion For Leave To File
Plaintiff’s Exhibits PX 679–81. ECF No. 135. The June 9, 2017 Order also permitted the
Government to file a Rebuttal Report prepared by the Government’s expert, Mr. Stephen Weathers
(“Weathers Rebuttal”). ECF No. 135.
III. DISCUSSION.
A. Subject Matter Jurisdiction.
The United States Court of Federal Claims has jurisdiction, under the Tucker Act, to
adjudicate any claim arising under the Contract Disputes Act (“CDA”), 41 U.S.C. §§ 7101–7109,
and that has been submitted to a CO for a final decision. See 28 U.S.C. § 1491(a)(2) ( “The Court
of Federal Claims shall have jurisdiction to render judgment upon any claim by or against, or
dispute with, a contractor arising under section 7104(b)(1) of title 41 . . . on which a decision of
the contracting officer has been issued[.]”); see also 41 U.S.C. § 7104(b)(1) (“[I]n lieu of appealing
the decision of a [CO] . . . to an agency board, a contractor may bring an action directly on the
claim in the United States Court of Federal Claims.”).
The term “claim” is defined “as a written demand or written assertion by one of the
contracting parties seeking, as a matter of right, the payment of money in a sum certain, the
adjustment or interpretation of contract terms, or other relief arising under or relating to this
contract.” 48 C.F.R. § 52.233–1. Although a CDA claim need not be submitted in any particular
form or use any particular wording, it must contain “a clear and unequivocal statement that gives
the contracting officer adequate notice of the basis and amount of the claim.” Contract Cleaning
Maint., Inc. v. United States, 811 F.2d 586, 592 (Fed. Cir. 1987). The CDA also requires that the
claim indicate to the CO that the contractor is requesting a “final” decision. James M. Ellett
Constr. Co. v. United States, 93 F.3d 1537, 1543 (Fed. Cir. 1996).
25
A claim “arises under” the CDA if it is based on,
any express or implied contract . . . made by an executive agency for—(1) the
procurement of property, other than real property in being; (2) the procurement of
services; (3) the procurement of construction, alteration, repair, or maintenance of
real property; or (4) the disposal of personal property.
41 U.S.C. § 7102(a).
In this case, the December 27, 2013 Complaint includes three CDA claims: Count One
alleges that the Government breached the duties to cooperate and not hinder; Count Two alleges
that the Government caused unreasonable delay; and Count Three alleges that the CO improperly
classified the delay as non-compensable delay. Compl. ¶¶ 22–36. MW Builders requested the
same relief for all three Counts; i.e., $2,562,049.00 in damages and a 169-day extension of time.
Compl. ¶¶ a–d.
MW Builders’ August 19, 2016 Post-Trial Proposed Findings Of Fact And Memorandum
Of Law characterizes Count One as “primarily rest[ing] on the implied duty of good faith and fair
dealing.” Pl. Post Tr. Br. at 6. The Government responds that the court does not have jurisdiction
over any claim arising from a breach of the implied duty of good faith and fair dealing, because
“[t]here is no mention of good faith” in MW Builders’ May 15, 2013 Amended Certified Claim.
Gov’t Post Tr. Br. at 105 (citing England v. The Swanson Grp., Inc., 353 F.3d 1375, 1379 (Fed.
Cir. 2004) (“[J]urisdiction over an appeal of a contracting officer's decision is lacking unless the
contractor's claim is first presented to the contracting officer and that officer renders a final
decision on the claim.”). MW Builders replies that the duty not to hinder and the duty to cooperate
are both aspects of the implied duty of good faith and fair dealing and MW Builders’ May 15,
2013 Amended Certified Claim put the Government on notice that MW Builders alleged a
violation of that duty. Gov’t Post Tr. Br. at 32 n. 145. In addition, the May 15, 2013 Amended
Certified Claim stated that “[t]he failure of the Government to timely execute the Line Extension
[A]greement implicated the Government[’]s general duty to cooperate and to do nothing that
unreasonably hinders the contractor’s performance.” JX 89 at 2. Therefore, the court construes
Count One to allege a breach of the September 10, 2010 Contract and a violation of the duty of
good faith and fair dealing. Regarding the latter, the United States Court of Appeals for the Federal
Circuit has held that “[b]oth the duty not to hinder and the duty to cooperate are aspects of the
implied duty of good faith and fair dealing.” Metcalf Constr. Co. v. United States, 742 F.3d 984,
991 (Fed. Cir. 2014) (emphasis added) (quoting Precision Pine & Timber, Inc. v. United States,
596 F.3d 817, 820 n.1 (Fed. Cir. 2010)). It also has held that the United States Court of Federal
Claims may adjudicate a claim, if it arises from the “same operative facts” and requests “essentially
the same relief,” as a claim presented to the CO, even if the complaint at issue alleges a “slightly
different legal theory.” Scott Timber Co. v. United States, 333 F.3d 1358, 1365 (Fed. Cir. 2003).
In addition, “[t]his standard . . . does not require rigid adherence to the exact language or structure
of the original administrative CDA Claim.” Id. Therefore, the fact that MW Builders’ certified
claim did not use the words “good faith” does not divest the court of jurisdiction to adjudicate this
claim. See Transamerica Ins. v. United States, 973 F.2d 1572, 1578 (Fed. Cir. 1992) (“[C]ertain
magic words need not be used and . . . the intent of the claim governs.”).
26
For these reasons, the court has determined that it has jurisdiction to adjudicate the claims
alleged in Count One of the December 27, 2013 Complaint.
Count Two of the December 27, 2013 Complaint alleges that the Army Corps’ improper
actions caused an “unreasonable delay.” Compl. ¶ 28–32. The May 15, 2013 Amended Certified
Claim alleges that the Government “unreasonably hinder[ed] the contractor’s performance” and
that, “for reasons not totally known to MW Builders, the Line Extension Agreement went unsigned
for 6 months after MW Builders presented it to the Government for execution[.]” JX 89 at 2. As
such, Count Two of the Complaint arises from the “same operative facts” as those presented in the
May 15, 2013 Amended Certified Claim. See Scott Timber Co., 333 F.3d at 1365.
For these reasons, the court has also determined that it has jurisdiction to adjudicate the
claims alleged in Count Two of the December 27, 2013 Complaint.
Count Three alleges the CO’s decision improperly classified the cause of the delay. The
court considers this Count to be redundant. Therefore, the discussion of MW Builders’ claims will
concern only the legal injuries alleged in Counts One and Two.
B. Standing.
The United States Supreme Court has held that “the question of standing is whether the
litigant is entitled to have the court decide the merits of the dispute or of particular issues.”
Warth v. Seldin, 422 U.S. 490, 498 (1975). Standing must be determined “as of the commencement
of suit[.]” Rothe Dev. Corp. v. Dep’t of Def., 413 F.3d 1327, 1334 (Fed. Cir. 2005) (quoting
Lujan v. Defs. of Wildlife, 504 U.S. 555, 570 n.5, (1992)). “The party invoking federal jurisdiction
bears the burden of establishing [standing].” Lujan, 504 U.S. at 561. The United States Supreme
Court held in Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167 (2000) that, to
establish standing,
a plaintiff must show (1) it has suffered an “injury in fact” that is (a) concrete and
particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the
injury is fairly traceable to the challenged action of the defendant; and (3) it is
likely, as opposed to merely speculative, that the injury will be redressed by a
favorable decision.
Id. at 180–81.
In addition, “[t]o have standing to sue the sovereign on a contract claim, a plaintiff must
be in privity of contract with the United States.” Anderson v. United States, 344 F.3d 1343, 1351
(Fed. Cir. 2003). In other words, the contract in issue must be between the plaintiff and the
Government. See Ransom v. United States, 900 F.2d 242, 244 (Fed. Cir. 1990) (“To maintain a
cause of action pursuant to the Tucker Act that is based on a contract, the contract must be between
the plaintiff and the [G]overnment.”).
It is undisputed that MW Builders was in privity of contract with the Government. Compl.
¶ 4 (“MW Builders and the Government, acting by and through [the Army Corps], are parties to a
firm, fixed price Contract No. W912 QR-10-C-0078 . . . for the construction of a new Army
Reserve Center in Las Vegas, Nevada[.]”). The December 27, 2013 Complaint also alleges that
27
MW Builders incurred financial injury that is concrete, particularized, and fairly traceable to the
Army Corps’ actions. And, any financial injury established by MW Builders can be addressed by
a monetary award.
For these reasons, the court has determined that MW Builders has standing to seek an
adjudication of the claims alleged in Count One and Count Two of the December 27, 2013
Complaint.
C. Plaintiff’s Claims Against The Government.
Count One of the December 27, 2013 Complaint alleges that the Army Corps violated the
duty of good faith and fair dealing and Count Two alleges that the Government caused an
unreasonable delay. Compl. ¶¶ 22–31. The gravamen of the December 27, 2013 Complaint is:
(1) the September 10, 2010 Contract required the Army Corps to sign the Line Extension
Agreement with NV Energy; (2) the Army Corps failed to secure easements, as required by the
September 10, 2010 Contract, and did not sign the Line Extension Agreement in a timely manner,
thereby breaching the September 10, 2010 Contract; and (3) the Army Corps eventually changed
its position, but nevertheless violated the duty of good faith and fair dealing in its discussions with
NV Energy that substantially delayed MW Builders’ work on the Project.
1. The September 10, 2010 Contract Required The United States Army
Corps Of Engineers To Sign The Line Extension Agreement With NV
Energy.
a. Plaintiff’s Argument.
The parties agree that the September 10, 2010 Contract was ambiguous as to which party
was required to sign the Line Extension Agreement with NV Energy. Pl. Post Tr. Br. at 7; see also
TR at 104 (Government’s counsel conceding that the September 10, 2010 Contract was ambiguous
as to the Line Extension Agreement). Therefore, the court must look to extrinsic evidence of the
parties’ intent as to which party was responsible for signing the Line Extension Agreement. Pl.
Post Tr. Br. at 7–8 (citing D’Andrea Bros. LLC v. United States, 96 Fed. Cl. 205, 219 (Fed. Cl.
2010)).
Prior to issuing the Solicitation, the Army Corps, Mason & Hanger, and the 63rd RSC,
began to work on the “Design Phase” of the Project. TR at 16, 27, 159 (Probst). During the Design
Phase, each of these entities refused to sign NV Energy’s Design Initiation Agreement. PX 45 at
GOV_17874–75. As a result, Mason & Hanger, sua sponte, amended Contract Drawing ES-002
to require the construction contractor to sign the Design Initiation Agreement. Pl. Post Tr. Br. at
31–32. Thereafter, in a May 6, 2009 memorandum, NV Energy, the utility, advised all concerned
that a signed Line Extension Agreement was required before permanent power would be provided
and nothing in Contract Drawing ES-002 changed that obligation. PX 4; see also DX 6 at 4 (5/6/09
Memorandum).
At trial, the witnesses agreed that Line Extension Agreements and similar types of contracts
typically are formed between utilities and the owners/end users of new construction, not between
utilities and the contractor. Pl. Post Tr. Br. at 8–12. For example, Robert Caskie, an Army Corps
28
employee, openly hostile to MW Builders’ claim, 22 confirmed this was a standard industry
practice. TR at 403–05 (Caskie). In addition, Mr. Kevin Finley, the Army Corps attorney who
negotiated the final Line Extension Agreement between the Army Corps and NV Energy, testified
that NV Energy’s “typical way of doing business” was for the end-user to sign the Line Extension
Agreement. TR 1077–78 (Finley). MW Builders’ conduct throughout the performance of the
contract also evidences its understanding, consistent with industry practice, that the September 10,
2010 Contract assigned responsibility for signing the Line Extension Agreement to the Army
Corps or Army Reserve. Pl. Post. Tr. Br. at 12–16. The Contract only required MW Builders to
“coordinate” with NV Energy, provide specific information about power needs, and sign the
Design Initiation Agreement. TR at 335–36 (Herriott). As such, when MW Builders received the
Line Extension Agreement, it “immediately” recognized that Agreement was the responsibility of
the end-user. TR at 355 (Herriott), 451 (Matson). For this reason, beginning in March 2012, MW
Builders first advised and then actively and continually complained that the Army Corps’ failure
to execute this Agreement interfered with and delayed progress on the Project. PX 528.
All of this evidence demonstrates that the parties did not intend the Contract to require MW
Builders to negotiate, sign, or be responsible for the Line Extension Agreement. Pl. Post Tr. Br.
at 37. MW Builders adds that the plain language of the Contract requires only that MW Builders:
(1) build the Project in such a way as to meet NV Energy’s Technical Requirements; and (2) sign
the Design Initiation Agreement. Pl. Post Tr. Br. at 40 (citing PX 422 at 3). There is no express
requirement that MW Builders sign a Line Extension Agreement. Pl. Post Tr. Br. at 40 (citing PX
422 at 3). Nor can the Contract reasonably be read as requiring MW Builders to sign the Line
Extension Agreement, because the term was for five years, i.e., 1,826 days; the term of the
construction Contract was only 660 days. Compare PX 449 ¶ 14.1 (“This [Line Extension]
Agreement . . . will continue for a term of five (5) years[.]”), with PX 52 at GOV_12823 (“The
Contract shall . . . complete [performance] within 660 calendar days[.]”).
In addition, the canon of expressio unius est exclusio alterius, i.e., “the expression of one
thing is the exclusion of the other,” is relevant, because the September 10, 2010 Contract required
that MW Builders sign a Design Initiation Agreement, but does not mention the Line Extension
Agreement. Pl. Post Tr. Br. at 46–47; see also Design & Prod., Inc. v. United States, 18 Cl. Ct.
168, 198–99 (Fed. Cl. 1989) (determining that a theater construction contract that expressly
required installation of seats implicitly did not require construction of interior walls, under the
doctrine of expressio unius est exclusio alterius). Likewise, it is well established that government
contracts that contain latent ambiguities are construed against the Government. See SIPCO Servs.
& Marine, Inc. v. United States, 41 Fed. Cl. 196, 215–16 (Fed. Cl. 1998) (determining that
contractor’s reasonable interpretation of latently ambiguous contract should be construed against
the Government). Therefore, MW Builders reasonably interpreted the latent ambiguity in the
22
Mr. Caskie explained that, when he worked as a CO, he regularly saw contractors file
“frivolous claims.” TR at 410–11 (Caskie). According to Mr. Caskie, MW Builders also had
multiple issues on the site, but chose to use the issues related to permanent power “to their
advantage to support their attempt to get back moneys” they lost on the project. TR at 418–19
(Caskie).
29
September 10, 2010 Contract concerning the Line Extension Agreement, not to require assumption
of that responsibility. Pl. Post Tr. Br. at 49.
Finally, the Government’s argument about the Line Extension Agreement is “riddled with
myopic inconsistency.” Pl. Post Tr. Br. at 16. Initially, the Army Corps decided the 63rd RSC
was required to sign the Agreement; after the 63rd RSC refused, the Army Corps attempted to
convince MW Builders to sign the document. Pl. Post Tr. Br. at 16. After MW Builders refused,
the Army Corps considered having multiple signers, before stepping up to the plate and signing
the Agreement. Pl Post Tr. Br. at 16. The fact that the Army Corps’ position shifted so many
times evidences that the Army Corps was well aware that MW Builders was not required to sign
the Line Extension Agreement. Pl. Post Tr. Br. at 19, 28–29. As MW Builders argued, “how a
party applies a contract during the performance period of a contract is evidence of how a party
interprets the contract,” and “how a party interprets a contract is good evidence of what that party
intended that contract to mean.” Pl. Post Tr. Br. at 28–29.
b. The Government’s Response.
The Government responds that MW Builders offered “no evidence” at trial that the
September 10, 2010 Contract required the Army Corps to sign the Line Extension Agreement.
Gov’t Post Tr. Br. at 108. The plain language did not impose any permanent power-related
obligations on the Government. Gov’t Post Tr. Br. at 108. In fact, Contract Drawing ES-002
expressly required MW Builders to provide a “complete and working electrical system” at the
Project, i.e., MW Builders needed to ensure that NV Energy would extend a line to the Project.
Gov’t Post Tr. Br. at 110.
The Government agrees that the September 10, 2010 Contract is ambiguous, but the
extrinsic evidence shows that the parties intended MW Builders to be responsible for the Line
Extension Agreement. Gov’t Post Tr. Br. at 110–11. This is so, because MW Builders was
required to provide a complete and working electrical system and doing so required the execution
of a Line Extension Agreement. Gov’t Post Tr. Br. at 111. And, multiple witnesses testified that
they had no knowledge about the Line Extension Agreement during the Design Phase. Gov’t Post
Tr. Br. at 111–12.
In addition, the course of performance supports a finding that MW Builders was required
to execute the Line Extension Agreement, because Contract Drawing ES-002 required MW
Builders to coordinate with NV Energy and, pursuant to that obligation, MW Builders signed the
Design Initiation and Design Approval Agreements with NV Energy. Gov’t Post Tr. Br. at 113.
For this reason, the Army Corps executed an “NV Energy Consultant/Third Party Contact
Authorization Form,” authorizing MW Builders to be NV Energy’s “sole contact” with respect to
the Project work. Gov’t Post Tr. Br. at 113; see also DX 30 (3/29/11 Contact Authorization Form).
Although MW Builders argues that Line Extension Agreements typically are signed by owners,
and not by construction contractors, that does not mean all such agreements need to be signed by
property owners. Gov’t Post Tr. Br. at 114.
Moreover, interpreting the Contract to require that the Government was responsible for
entering the Line Extension Agreement would render the September 10, 2010 Contract invalid
under the Anti-Deficiency Act, 31 U.S.C. § 1350. Gov’t Post Tr. Br. at 116. Under that Act, the
30
Government cannot lawfully enter into obligations for which there is no appropriation from
Congress. Since the Line Extension Agreement includes open-ended provisions regarding future
events, the Government could not sign the agreement without violating that Act. Gov’t Post Tr.
Br. at 116–17.
c. The Court’s Resolution.
i. The September 10, 2010 Contract Contains A Latent
Ambiguity Regarding Which Party Was Responsible For
Signing The Line Extension Agreement With NV
Energy.
Contract interpretation is a question of law. See NVT Techs., Inc. v. United States, 370
F.3d 1153, 1159 (Fed. Cir. 2004). In interpreting a contract, the court begins with the language of
the agreement. Id. (“Contract interpretation begins with the language of the agreement.”); see
also C. Sanchez & Son, Inc. v. United States, 6 F.3d 1539, 1543 (Fed. Cir. 1993) (“A contract is
read in accordance with its express terms and the plain meaning thereof.”). “When the contract’s
language is unambiguous it must be given its ‘plain and ordinary’ meaning and the court may not
look to extrinsic evidence to interpret its provision.” TEG-Paradigm Envtl. Inc. v. United States,
465 F.3d 1329, 1338 (Fed. Cir. 2006) (quoting Coast Fed. Bank, FSB v. United States, 323 F.3d
1035, 1040 (Fed. Cir. 2003)). If a contractual provision is susceptible to more than one reasonable
interpretation and is ambiguous, the court should consult extrinsic evidence to determine the
parties’ intent. See Edward R. Marden Corp. v. United States, 803 F.2d 701, 705 (Fed. Cir. 1986)
(“It is a generally accepted rule . . . that if a contract is reasonably susceptible of more than one
interpretation, it is ambiguous.”); see also Metro. Area Transit, Inc. v. Nicholson, 463 F.3d 1256,
1260 (Fed. Cir. 2006) (“Having found the contract ambiguous, we may appropriately look to
extrinsic evidence to aid in our interpretation of the contract.”).
When contract language is ambiguous, the court must determine whether “that ambiguity
was patent so as to impose a duty to seek clarification, or only latent.” Interwest Constr. v. Brown,
29 F.3d 611, 614 (Fed. Cir. 1994); see also Newsom v. United States, 676 F.2d 647, 649 (Ct. Cl.
1982) (“If a patent ambiguity is found in a contract, the contractor has a duty to inquire of the
contracting officer the true meaning of the contract before submitting a bid.”). Whether an
ambiguity is patent or latent is a question of law. See Grumman Data Sys. Corp. v. Dalton, 88
F.3d 990, 997 (Fed. Cir. 1996). When the ambiguity is patent, United States Court of Appeals for
the Federal Circuit precedent requires a departure from the ordinary rule of contra proferentem,
under which ambiguities in government contracts are construed against the drafter, i.e., the
Government. See Metric Constructors, Inc. v. NASA, 169 F.3d 747, 751 (Fed. Cir. 1999) (“The
doctrine of patent ambiguity is an exception to the general rule of contra proferentem which
construes an ambiguity against the drafter[.]”).
A patent ambiguity has been defined as “an obvious omission, inconsistency, or
discrepancy of significance.” Beacon Constr. Co. v. United States, 314 F.2d 501, 504 (Ct. Cl.
31
1963). 23 In contrast, a latent ambiguity is “neither glaring nor substantial nor patently obvious”
on the face of the contract document. See Grumman Data Sys. Corp., 88 F.3d at 997 (quoting
Cmty. Heating & Plumbing Co. v. Kelso, 987 F.2d 1575, 1579 (Fed. Cir. 1993) (explaining that
latent ambiguities arise in the “grey area between the point . . . at which a document requires more
exacting language and that at which additional detail will add nothing but worthless
surplusage[]”)). Therefore, a latent ambiguity usually is not apparent unless there is a dispute. See
Latent Ambiguity, BLACK’S LAW DICTIONARY (10th ed. 2014) (“An ambiguity that does not readily
appear in the language of a document, but instead arises from a collateral matter once the
document's terms are applied or executed”).
The reason that the September 10, 2010 Contract is ambiguous as to which party was
required to sign the Line Extension Agreement, is because the language of Contract Drawing ES-
002 is subject to more than one reasonable interpretation. As MW Builders argues, it is reasonable
to read Contract Drawing ES-002 as not requiring MW Builders to sign the Line Extension
Agreement, because there is no express instruction requiring MW Builders to sign it. TR at 104;
see also Gov’t Post Tr. Br. at 110 (“Contract Drawing ES-002 does not expressly say which party
was to execute the Line Extension Agreement; the drawing itself does not refer to a ‘Line
Extension Agreement.’ In that respect, it is ambiguous.”)
Contract Drawing ES-002 begins by stating that the “Contractor is responsible for
providing all electric infrastructure, equipment, and wiring for the Project unless specifically noted
as provided by NV Energy in the division of responsibility.” DX 14. But, this requirement speaks
only to physical construction requirements. The “Division of Responsibility (Power)” table that
accompanies the text lists a number of physical items to be constructed, e.g., a “transformer,” a
“transformer pad,” a “primary duct bank,” and a “secondary duct bank;” it does not discuss the
execution of documents. DX 14. Next, Contract Drawing ES-002 states that the “Contractor shall
contact NV Energy prior to bidding to verify that NV Energy will provide everything noted in the
table below.” DX 14. This clause also unambiguously concerns only the physical construction
requirements, reflected in the Division of Responsibility table. The sentence immediately
following, however, provides that “Contractor is responsible for providing a complete and working
electrical system, and shall include all costs in this bid.” DX 14. It is here that ambiguity arises,
because “complete and working electrical system” can be read as requiring more than just building
the physical items listed in the Division of Responsibility table. But, this ambiguity is “latent,”
because nothing “obviously [is] omitted” from the surrounding language and it is not inconsistent
with the surrounding sentences. “All costs,” reasonably could be interpreted as relating to all costs
incurred by MW Builders’ to facilitate the installation of electrical power, e.g., building the ducts
and paying the fee associated with the Design Initiation Agreement. In any event, the issue of
responsibility for signing the Line Extension Agreement did not arise until March 19, 2012, when
the Army Corps changed its view that the responsibility was the 63rd RSC’s and instead insisted
that MW Builders was responsible for signing this document. Compare JX 44 at 1 (3/13/12
conference call summary, wherein parties agreed that the Line Extension Agreement “will be
executed between NV Energy and 63D RSC such that staging of equipment can start on or about
19 March 2012”), with PX 60A (3/19/12 conference call summary, wherein Army Corps
23
The United States Court of Appeals for the Federal Circuit has held that United States
Court of Claims decisions issued prior to September 30, 1982, are binding precedent.
See S. Corp. v. United States, 690 F.2d 1368, 1369 (Fed. Cir. 1982).
32
announced intention to “consider an arrangement whereby . . . MW Builders may enter the
agreement with NV Energy”).
Contract Drawing ES-002 also provides that “The electrical distribution system shown on
the plans is the preliminary layout discussed with NV Energy during the project design and may
not match the final design required by NV Energy. Electrical manholes are not shown, but shall
be provided per NV Energy requirements. The electrical design must be coordinated with the
communications design provided[.]” DX 14 at 1. This language also does not require MW
Builders to enter into any contracts with NV Energy. Although the Government placed
considerable emphasis on the term “coordinate,” as the court observed during trial: “[c]oordinate
doesn’t mean to enter into a contract.” TR at 414. The term “coordinate,” in this context, means
that the electrical work had to be coordinated with the telecommunications work performed, in
accordance with the communications design. DX 14 at 1. 24
The next sentence appears to require MW Builders to enter into a contract with NV Energy:
“The contractor will be required to sign a Design Initiation Agreement with NV Energy and pay
fees as shown in the bid schedule.” DX 14 at 1. This language, however, refers to the fact that
MW Builders was responsible to sign that specific contract. The fact that there was no mention
of the Line Extension Agreement was not necessarily an “obvious omission.” See Beacon Constr.,
314 F.2d at 504. Instead, “when parties list specific items, without any more general or inclusive
term, they intend to exclude similar items, even though they are similar to those listed.” 2 E.
ALLEN FARNSWORTH, FARNSWORTH ON CONTRACTS § 7.11 at 293–94 (3d ed. 2004) (emphasis
added). In this case, Contract Drawing ES-002 required MW Builders only to sign one specific
type of agreement with NV Energy, but did not require MW Builders to enter into “contracts” with
NV Energy. Therefore, a reasonable construction contractor could read Contract Drawing ES-002
as requiring MW Builders only to sign the Design Initiation Agreement. To require MW Builders
to sign more than just the Design Initiation Agreement, the Army Corps could have required MW
Builders to “enter into any agreements necessary for the provision of permanent power” or
otherwise be required to “contract with” NV Energy to provide such power. Instead, Contract
Drawing ES-002 requires that “[t]he contractor shall contact NV Energy and determine the scope
and costs of this work prior to submitting a proposal. The contractor’s proposal shall include all
work and all costs associated with providing electrical power for the project.” DX 14 at 1
(emphasis added). This, however, was not a directive to MW Builders to sign the Line Extension
Agreement.
Contract Drawing ES-002 expressly requires MW Builders to provide “all electric
infrastructure, equipment, and wiring for the Project.” DX 14 at 2. Contract Drawing ES-002 also
requires MW Builders to provide “a complete and working electrical system.” DX 14 at 2. In
addition, Contract Drawing ES-002 requires the contractor to “contact” NV Energy and “obtain
written documentation of all transactions with NV Energy and provide them to the [Army Corps].”
DX 14 at 2. But, this contractual provision could be interpreted to require MW Builders to serve
as a middleman between the Army Corps and NV Energy. Contract Drawing ES-002 further
24
Contract Drawing ES-002 also included a “Division of Responsibility (Embarq),” that
governed the telecommunications aspect of the Project; telecommunications were to be provided
by Embarq, a utility company. DX 14 at 1.
33
provides that “The contractor is responsible for all guidelines and requirements within Nevada
Power Company’s [i.e., NV Energy’s] Electric Service Requirements, which can be found on their
website below.” DX 14 at 2. But, this sentence requires MW Builders to abide by the “Electrical
Service Requirements,” found at the website: a 432 page document consisting of technical
requirements related to construction, including, “how deep power lines need to be buried.” TR at
459 (Matson); see also PX 680. The term “Line Extension Agreement” does not appear anywhere
in this document. PX 680.
For these reasons, the court has determined that the September 10, 2010 Contract is
ambiguous as to which party was responsible for signing the Line Extension Agreement, but that
ambiguity was latent.
ii. Extrinsic Evidence Of Intent Demonstrates That The
United States Army Corps Of Engineers Was
Responsible For Signing The Line Extension Agreement
With NV Energy.
Because there was a latent ambiguity in the September 10, 2010 Contract as to which party
was required to sign the Line Extension Agreement, the rule of contra proferentem applies,
meaning that any ambiguity may be construed against the Army Corps. That rule, however, is one
“of last resort” and should be applied only if the ambiguity cannot be reconciled after “looking to
the circumstances attending the transaction and the circumstances under which [the parties]
executed the contract.” See Gardiner, Kamya & Assocs., P.C. v. Jackson, 467 F.3d 1348, 1352
(Fed. Cir. 2006) (quoting Chris Berg, Inc. v. United States, 455 F.2d 1037, 1044 (Ct. Cl. 1972)).
Therefore, “before resorting to the doctrine of contra proferentem, [the court] ‘may appropriately
look to extrinsic evidence’” to aid in the interpretation of the contract. See Gardiner, 467 F.3d at
1352 (quoting Metro. Area Transit, Inc., 463 F.3d at 1260).
As a threshold matter, the Government argues that there is “no evidence” that the Army
Corps was “specifically aware of the Line Extension Agreement prior to Contract award.” Gov’t
Post Tr. Br. at 110. The trial testimony about the pre-award “Design Phase” of the contract
supports this assertion: Army Corps and Mason & Hanger witnesses testified that, during the
Design Phase, they were concerned with the Design Initiation Agreement and not with the Line
Extension Agreement. TR at 16–17 (Probst); TR at 975–78 (Miller). In addition, although the
May 9, 2009 letter attached to the draft Design Initiation Agreement mentioned a “Line Extension
Agreement,” it was in the context of requiring the applicant for permanent power to “sign one or
more of the following agreements: Line Extension Agreement (LEA); Large Project Service
Agreement (LPS Agreement); Contribution in Aid of Construction Agreement (CIAC
Agreement); Non-Refundable Construction Agreement (NRCA).” DX 6 at 5. Consequently, it
appears that the Army Corps was not aware of the significance of the Line Extension Agreement
before awarding the September 10, 2010 Contract to MW Builders. But, any assertion that the
Army Corps was not aware of the Line Extension Agreement, and nevertheless intentionally
bargained for MW Builders to sign that Line Extension Agreement, is logically inconsistent. In
other words, the Army Corps cannot insist on a requirement, if it was not aware the requirement
existed. Recognizing the flaw in its reasoning, the Government next argues that since the
September 10, 2010 Contract did not expressly require the Army Corps to sign the Line Extension
Agreement, that obligation fell on MW Builders. Gov’t Post Tr. Br. at 108–09. This argument is
34
not supported by any evidence and ignores the fact that the Army Corps was aware of industry
practice. See, e.g., Jowett, Inc. v. United States, 234 F.3d 1365, 1369 (Fed. Cir. 2000) (explaining
that the court may look to industry practice where a “term with an accepted industry meaning [was]
omitted from the contract”). In this case, both NV Energy and Army Corps witnesses testified that
it was industry practice for building owners of new construction (“end users”) to execute Line
Extension Agreements. Ms. Risse, the NV Energy in-house attorney responsible for negotiating
Line Extension Agreements, 25 testified that NV Energy typically required “the ultimate end user
to be the counterparty,” because “there are ongoing obligation[s] that survive the termination of
the contract, and it’s a five year contract.” TR at 584 (Risse). Likewise, Mr. Finley, the Army
Corps attorney responsible for negotiating the Line Extension Agreement, testified that NV
Energy’s “typical way of doing business” was for the “end user” to enter into the Agreement, and
it was for that reason that NV Energy originally drafted the Line Extension Agreement for the 63rd
RSC to sign. TR at 1078 (Finley).
It is true that Ms. Creveling, another NV Energy employee, testified that NV Energy once
entered into a Line Extension Agreement with a contractor, instead of the Government end-user,
but this occurred on a “much smaller” project. 26 TR at 1013–14 (Creveling). And, the testimony
of other witnesses confirmed that situation was an exception, not the rule. TR at 343 (Herriott).
Moreover, Mr. Rial, a twenty-three-year veteran of NV Energy who now provides consulting
services for companies contracting with NV Energy, testified that he could not remember a
situation where a contractor signed the Line Extension Agreement. TR at 462, 469–70 (Rial).
This makes sense, because the Line Extension Agreement governs utility payments for at least a
five-year term—long after the construction contractor’s work is over. TR at 473 (Rial) (“A Line
Extension Agreement is the contract between the utility and the owner on how the money is to be
collected, the breakdown on the money, and then, also, how the moneys will be refunded[.]”).
The bottom line is the Army Corps could have contracted to depart from ordinary industry
practice by expressly placing the obligation to enter into a utility contract on the contractor. 27 But,
the Army Corps did not do so and apparently was not aware of the fact that NV Energy would
require a signed Line Extension Agreement from the Project’s end-user. Under these
circumstances, the court declines to supply an omitted term that departs from ordinary industry
practice, without evidence of pre-contract intent to include such a term. Instead, the court has
determined that the parties agreed to follow the typical industry practice with respect to the Line
25
Ms. Risse was responsible for “tak[ing] the lead” on contract negotiations during the ten
years she was employed by NV Energy. TR at 578–80. Ms. Risse negotiated the July 12, 2012
Line Extension Agreement executed between the Army Corps and NV Energy in this case. TR at
599–600 (Risse).
26
Ms. Creveling was unable to find any past projects of similar scope to this Project where
the Line Extension Agreement was executed by the contractor, instead of the end user. TR at 1014
(Creveling).
27
In fact, the Army Corps did seek to contract out of industry practice in a subsequent
solicitation, by including a provision that “[t]he Contractor must also sign the Line Extension
Agreement provided by Nevada Energy.” PX 274 at GOV_00049373.
35
Extension Agreement, placing that contractual obligation on the Army Corps in its capacity as
Project Manager and agent for the 63rd RSC by virtue of its signature on the September 10, 2010
Contract. 28
The parties’ performance also evidences that there was no agreement that MW Builders
was required to sign the Line Extension Agreement. Prior to any controversy regarding the Line
Extension Agreement, the Army Corps restricted MW Builders’ ability to negotiate contract
changes on behalf of the Army Corps, by modifying the terms of NV Energy’s Third Party
Authorization Form. Compare JX 14 at 11 (Unsigned and undated Third Party Authorization
Form draft, providing that MW Builders would have authority to “communicate and authorize all
change requests”), with PX 15 (3/29/11 Third Party Authorization Form, including Government
modifications, deleting “and authorize”). Other paperwork filled out by MW Builders identified
the Army Corps as the “Customer/Legal Owner” of the Project. PX 15 (3/29/11 Third Party
Authorization Form); PX 567 (3/29/11 Project Information Sheet). Similarly, on the April 27,
2011 Design Initiation Agreement, the Army Corps was identified as the “Applicant” for
permanent power. JX 19 at 10.
In addition, when NV Energy sent the Line Extension Agreement to MW Builders and the
Army Corps, all parties held a March 13, 2012 conference call together with the 63rd RSC and
concluded that the Agreement should be signed by the 63rd RSC. JX 44 at 1 (“The contract will
be executed between NV Energy and 63D RSC such that staging of equipment can start on or
about 19 March 2012.”). The fact that the Army Corps first took the Line Extension Agreement
to the 63rd RSC is inconsistent with the Army Corps’ later claim that MW Builders was
responsible for entering into the Line Extension Agreement. TR at 1077 (Finley). It was only
after the 63rd RSC refused to sign the Line Extension Agreement that the Army Corps took the
position that it was MW Builders’ responsibility. PX 501 at GOV_00005389 (Mr. Musgrave’s
email that: “I really don’t know why MW cannot sign the contract as they a[re] paying the fee and
the cost for service until it is acceptable.”). 29
In any event, the Army Corps changed its position as to which party was obligated to sign
the Line Extension Agreement and the CO never issued a directive ordering MW Builders to sign
it. PX 528; TR at 1132 (Ringstaff) (“[i]f the contractor feels that something is out of the scope
and [the Army Corps] feel[s] like it is in scope, we can direct them to do the work.”). And, as Mr.
Probst explained in his June 29, 2012 email, the CO refused to take this step, because doing so
“would expose the Government to a potential Request for Equitable Adjustment (REA) and a
contract ratification if an REA was upheld.” PX 294. In short, the Army Corps refused to order
MW Builders to sign the Line Extension Agreement, because it was cognizant that doing so would
entitle MW Builders to a Request for Equitable Adjustment. Therefore, the extrinsic evidence
28
The Army Corps was the owner of the property while the Project was under construction,
and was designated as “the construction agent/property holder until construction completion/
beneficial occupancy.” DX 37 at 30.
29
Mr. Musgrave subsequently advised that the Army Corps should “[m]ake them [i.e., MW
Builders] do it and let the chips fall where they may.” PX 27.
36
demonstrates that the parties did not intend for MW Builders to sign the Line Extension Agreement
with NV Energy, but instead agreed to follow the industry practice of having the end user sign.
Finally, the Government argues that the September 10, 2010 Contract could not have
placed responsibility for the Line Extension Agreement on the federal government, because it
would be unenforceable under the Anti-Deficiency Act. Gov’t Post Tr. Br. at 116 (citing 31 U.S.C.
§ 1350 (imposing criminal sanctions for knowingly spending funds in excess of those appropriated
by Congress)). It is true that certain sections of the Line Extension Agreement obligated payments
that were not in sum certain for future years and the Anti-Deficiency Act only allows spending
that is authorized by Congress. JX 72 at 5 (Draft Line Extension Agreement providing that
applicant’s refund could be reduced via an “Allowance True-Up”). The Army Corps, however,
removed those provisions prior to finally executing the July 23, 2012 Line Extension Agreement
with NV Energy. Compare JX 72 at 5 (6/20/12 draft Line Extension Agreement providing for a
potential reduction of an Applicant’s refund via an “Allowance True-Up”), with JX 94 at 125
(7/23/12 executed Line Extension Agreement intentionally omitting “Allowance True-Up”
provisions). Therefore, the fact that the draft Line Extension Agreement included language to
which Army Corps could not have agreed, is irrelevant since the September 10, 2010 Contract did
not include any terms contrary to the Anti-Deficiency Act.
For these reasons, the court has determined that the Army Corps was obligated to sign the
Line Extension Agreement and breached the September 10, 2010 Contract by failing to do so in a
timely manner.
2. The United States Army Corps Of Engineers Violated The Duty Of
Good Faith And Fair Dealing Causing An Unreasonable Delay To The
Project.
a. Plaintiff’s Argument.
MW Builders argues that the duties to cooperate and not to hinder are two “sub-duties” of
the broader duty of good faith and fair dealing. Pl. Post. Tr. Br. at 107. In this case, MW Builders
had a reasonable expectation that the Army Corps would not hinder or interfere with MW Builders’
Project Schedule. Pl. Post. Tr. Br. at 108.
The Army Corps first unreasonably failed to secure necessary easements, despite
representing in the September 10, 2010 Contract that offsite property rights would be available to
MW Builders so permanent power could be connected to the Project site. Pl. Post Tr. Br. at 111.
In addition, the Contract Drawings provided by the Army Corps indicated that MW Builders would
be able to build offsite ductbanks at the intersection of Arville Street and Ray Way (the “Arville
Hub”), and then work with NV Energy to “pull” a utility wire to the Project site. Pl. Post Tr. Br.
at 61 (citing PX 267). Although the Contract Drawings suggested that MW Builders would be
able to perform construction work in this area, MW Builders subsequently learned that the Army
Corps failed to secure the necessary easements for MW Builders to construct the necessary offsite
ductbanks. Pl. Post Tr. Br. at 62 (citing JX 26). MW Builders raised this issue with the Army
Corps in July 2011, but the Army Corps did not resolve the issue until March 2012. Pl. Post Tr.
Br. at 67. In fact, the Army Corps recognized that failure to secure the easements was a “big goof”
and, under ordinary circumstances, the Army Corps would work to secure the necessary easements
37
before opening up a project to bidding. Pl. Post Tr. Br. at 63 (citing PX 239); see also TR at 378–
79 (Caskie) (“I wouldn’t have let the bids be open if I knew there [were] real estate issues[.]”).
Therefore, the Army Corps acted unreasonably when it took months to resolve the easements issue,
despite knowing of its critical importance. Pl. Post Tr. Br. at 111.
NV Energy also needed to inspect MW Builders’ ductbank work before pulling a wire to
connect the Project site to the utility grid. Pl. Post Tr. Br. at 65 (citing PX 453, JX 26). This
required permission from the Army Corps so NV Energy provided both with an “Access To
Equipment Agreement” in September 2011. Pl. Post Tr. Br. at 67 (citing PX 18). But, the Army
Corps decided that it could not agree to several provisions in the Access To Equipment Agreement.
PX 18 (2/28/12 email regarding Access To Equipment Agreement). The Army Corps, however,
did not inform MW Builders and NV Energy of its disagreement with those provisions until
February 28, 2012, i.e., several months after first receiving that Agreement. PX 18. Although
none of this delay directly affected MW Builders’ critical path, the Army Corps’ failure to secure
the necessary easements and extended negotiations about NV Energy’s Access To Equipment
Agreement narrowed the window within which a Line Extension Agreement could be executed,
without pushing tasks onto the critical path that would delay the Project. Pl. Post Tr. Br. at 70.
Consequently, when the Army Corps later failed to sign the Line Extension Agreement in a timely
manner, the resulting delay had a considerably greater impact on the Project’s completion date
than it otherwise would have had. Pl. Post Tr. Br. at 70.
Most importantly, during the March 13, 2012 conference call, when the Line Extension
Agreement was first discussed with NV Energy and MW Builders present, the Army Corps stated
that the 63rd RSC would sign the Line Extension Agreement. Pl. Post Tr. Br. at 74 (citing JX 44).
But, the Army Corps changed its position and later insisted that MW Builders was responsible for
signing the Line Extension Agreement. Pl. Post Tr. Br. at 76–77 (citing PX 501, at GOV_5390).
The Army Corps’ bad faith is also evidenced by the fact that on March 19, 2012, the Army Corps
purposely excluded MW Builders from a second conference call with NV Energy, when it
explained the Army Corps intended to make MW Builders sign the Line Extension Agreement.
Pl. Post Tr. Br. at 77 (citing TR at 85 (Probst)).
MW Builders, however, was completely candid as it informed the Army Corps on
numerous occasions that it would not sign the Line Extension Agreement. Pl. Post Tr. Br. at 78–
84 (citing TR at 182 (Musgrave), 198 (Probst); PX 528; JX 58). Nevertheless, on April 26, 2012,
the Army Corps made misleading and confusing statements to NV Energy, to make it appear that
MW Builders would be the counterparty to the Line Extension Agreement. Pl. Post Tr. Br. at 85
(citing JX 61). And so, negotiations dragged on. Pl. Post Tr. Br. at 85–86. It was not until June
21, 2012, that Ms. Risse, NV Energy’s Representative, was clearly informed that the Army Corps,
instead of MW Builders, would sign the Line Extension Agreement. Pl. Post Tr. Br. at 89 (citing
TR at 597 (Risse)).
The “contemporaneous project schedules [also] establish the duration and causation” of the
“critical path” delay caused by the Army Corps’ violation of the duty of good faith and fair dealing.
Pl. Post Tr. Br. at 93. MW Builders began work by creating an initial “baseline schedule.” TR at
509–10 (Stone). As the Project progressed, MW Builders’ schedule was updated on a monthly
basis and was reviewed by Management Solutions, the third party scheduling consultant retained
by the Army Corps. TR at 512 (Stone). The February 2012 updated critical path schedule showed
38
that the Project would be completed 27 days ahead of schedule. PX 336. By the March 2012
Update, however, the lack of permanent power caused a delay and the updated schedule showed a
completion date that was ten days late. TR at 517–18 (Stone). Nevertheless, the Army Corps
continued to decline to sign the Line Extension Agreement and MW Builders’ Schedule Updates
continued to show delay. Pl. Post Tr. Br. at 96–97. By the April 2012 Update, the anticipated
delay reached 52 days and, by May 2012, the delay increased to 86 days. Compare PX 338 at 1
(April 2012 Update), with PX 339 at 2 (May 2012 Update). Management Solutions’ review of the
April 2012 Schedule Update identified several changes and the Army Corps was asked whether it
agreed “with the changes such as the change in original duration of Nevada energy-
wire/transformer/es, added activities, and logic changes?” 30 PX 348 at 3. By the June 2012
Update, the delay was 121 days, because various work activities required permanent power,
including air conditioning. PX 340 at 1 (June 2012 Update). Subsequently, the Army Corps
approved those changes to the underlying logic. PX 348; TR at 1063–64. Although the
Government’s damages expert, Mr. Weathers, did not agree with that decision (CX 2), the fact is
that the Army Corps approved them. Pl. Post Tr. Br. at 99. By the July 2012 Update, the delay
increased to 140 days, because there was “little available work left within [the Training Building]
due to lack of permanent power and as a result many subcontractors have demobilized.” PX 341
at 1–2 (July 2012 Update). By the October 2012 Update, the delay increased to 170 calendar days.
PX 344 at 1 (October 2012 Update).
MW Builders’ scheduling expert, Mr. Miltonberger, also estimated that the Project was
delayed a total of 413 days that could be divided into three “windows” or time periods.
Miltonberger Direct at 3–5. “Window 2” concerns 170 days of delay and is the subject of this
case. 31 Of that amount, Mr. Miltonberger opines that 140 days resulted from the Army Corps’
delay in signing the Line Extension Agreement. Miltonberger Direct at 4.
b. The Government’s Response.
The Government responds that MW Builders did not meet the “heightened burden” to
establish a breach of the implied covenant of good faith and fair dealing by evidencing “specific
intent to injure.” Gov’t Post Tr. Br. at 100, 105 (citing Austin v. United States, 118 Fed. Cl. 776,
790 (Fed. Cl. 2014)). Government officials are presumed to act in good faith. Gov’t Post Tr. Br.
at 100–01 (citing Schism v. United States, 316 F.3d 1259, 1302 (Fed. Cir. 2002)). Specifically,
there is no evidence that the Army Corps acted with animus towards MW Builders or otherwise
intentionally targeted MW Builders and Mr. Probst and Mr. Finley acted in good faith. Gov’t Post
30
Management Solutions regularly approved of MW Builders’ subsequent Schedule
Updates and represented to the Army Corps that the “level of detail in the schedule is admirable”
(PX 350), and MW Builders’ schedules were “well managed . . . and contain[ed] adequate detail
to manage the project.” PX 351. These statements undercut Mr. Weathers’ testimony that MW
Builders’ schedule was not sufficiently detailed. Pl. Post Tr. Br. at 99.
31
Window 1 concerns 20 days of Critical Path Delay and was resolved by a Contract
Modification executed between MW Builders and the Army Corps. Miltonberger Direct at 3.
Window 3 concerns 223 days of Critical Path Delay, but also was resolved by a Contract
Modification executed between MW Builders and the Army Corps. Miltonberger Direct at 3.
39
Tr. Br. at 105–06. Therefore, the Army Corps did not unreasonably delay negotiations surrounding
the Line Extension Agreement, but acted “reasonably and diligently,” and in good faith.
Gov’t Post Tr. Br. at 117–18.
It was NV Energy, a third party over which the Army Corps had no control, that insisted
on provisions that the Army Corps could not agree to by signing the Line Extension Agreement.
Gov’t Post Tr. Br. at 118. The Army Corps’ attorney, Mr. Finley, worked diligently with NV
Energy’s attorney, Ms. Risse, to resolve the Army Corps’ legitimate concerns regarding the Anti-
Deficiency Act, venue, and the law that would govern any future disputes. Gov’t Post Tr. Br. at
32 (citing DX 143). Although MW Builders argues that Ms. Risse’s confusion was
“understandable,” because Mr. Finley appeared to be negotiating on behalf of three separate parties
(MW Builders, the 63rd RSC, and the Army Corps), she should have been tipped off by the
“telling” fact that MW Builders’ lawyers were not included in the email conversation. Gov’t Post
Tr. Br. at 120. The Army Corps had “no incentive” to cause confusion as to which party was to
sign the Line Extension Agreement. Gov’t Post Tr. Br. at 121. In any event, the Army Corps and
NV Energy were able to resolve their dispute “very quickly,” after Ms. Risse’s confusion was
resolved. Gov’t Post Tr. Br. at 121.
To establish a breach of the duty to cooperate, MW Builders must establish that the delay
was the fault of the Army Corps. Gov’t Post Tr. Br. at 99. In this case, MW Builders assumed the
risk of any delay caused by problems with NV Energy, because MW Builders contracted to provide
“a complete and working electrical system.” Gov’t Post Tr. Br. at 107 (citing DX 14 at 1).
Therefore, MW Builders should be barred from recovery, because it caused the delay. Gov’t Post
Tr. Br. at 121. This is so, because Contract Drawing ES-002 obligated MW Builders to contact
NV Energy about its permanent power requirements, but MW Builders did not inform the Army
Corps about the Line Extension Agreement until March 14, 2012. Gov’t Post Tr. Br. at 122.
In addition, “to properly demonstrate delay[,] . . . the [Critical Path Method] schedule must
be kept current to reflect any delays as they occur.” Gov’t Post Tr. Br. at 123 (quoting PCL Constr.
Servs., Inc. v. United States, 47 Fed. Cl. 745, 801 (Fed. Cl. 2000). In this case, MW Builders’
schedules did not reflect a potential permanent power delay until March 28, 2012. Gov’t Post Tr.
Br. at 124 (citing DX 72 at 4). “This assumption was based upon ignorance and nothing more.”
Gov’t Post Tr. Br. at 124. At trial, MW Builders’ Scheduling Engineer, Mr. Stone, testified that
he could have incorporated the logic changes made in the March 2012 Schedule Update, if he had
been aware of the permanent power issue. Gov’t Post Tr. Br. at 124 (citing TR at 565 (Stone)).
Therefore, if “MW Builders had managed the project in a diligent manner, it would have identified
the Line Extension Agreement as a potential problem in 2011, if not sooner.” Gov’t Post Tr. Br.
at 124. Mr. Rial, the consultant employed by MW Builders to assist with NV Energy, testified
that he informed MW Builders about the Line Extension Agreement in July 2011. Gov’t Post Tr.
Br. at 124–25; see also TR at 484–85 (Rial). Therefore, to avoid a critical path delay, the Line
Extension Agreement needed to be signed at least “nine weeks before” May 3, 2012, i.e., by March
1, 2012. Gov’t Post Tr. Br. at 125; see also TR at 892 (Miltonberger). But, the Army Corps did
not receive the Line Extension Agreement until March 14, 2012. Gov’t Post Tr. Br. at 125.
As for MW Builders’ arguments about easement delays and how they “pushed the Line
Extension Agreement onto the critical path,” they “are based solely on speculation and not on any
evidence.” Gov’t Post Tr. Br. at 127–28. In any event, the easement delays were not solely caused
40
by the Government. Nor was all of the delay the fault of the Army Corps. Gov’t Post Tr. Br. at
127–28. Since any such delay was “concurrent or intertwined,” MW Builders did not meet its
burden of separating the delays it caused from those that may have been caused by the Army Corps.
Gov’t Post Tr. Br. at 129 (citing Blinderman Constr. v. United Sates, 695 F.2d 552, 559 (Fed. Cir.
1982). Therefore, the court should dismiss MW Builders’ claim. Gov’t Post Tr. Br. at 129.
c. Plaintiff’s Reply.
MW Builders replies that Metcalf Construction Co. v. United States, 742 F.3d 984 (Fed.
Cir. 2014), does not require a plaintiff to show bad faith or targeting by a federal government
official to establish a breach of the implied duty of cooperation, which is part of the duty of good
faith and fair dealing. Pl. Post Tr. Reply Br. at 29 (citing Metcalf, 742 F.3d at 994). Instead, the
relevant standard is whether the Government willfully or negligently interfered with a contractor’s
performance and reasonable expectations. Pl. Post Tr. Reply Br. at 32 (citing Malone v. United
States, 849 F.2d 1441, 1445 (Fed. Cir. 1988) (“[S]ubterfuges and evasions violate the obligation
of good faith, as does lack of diligence and interference with or failure to cooperate in the other
party’s performance”) (internal citations and quotations omitted)). Therefore, the Government’s
argument that MW Builders needs to establish that it was intentionally “targeted” by the Army
Corps is not correct as a matter of law. Pl. Post Tr. Reply Br. at 30.
With respect to easements, MW Builders replies that the Army Corps’ delay in securing
the easements consumed Project “float” time, i.e., the time between when an activity is first
scheduled to occur and the last date the activity can be completed. Pl. Post Tr. Reply Br. at 34.
As the Government’s expert testified, securing the easements was a “predecessor activity” to the
Line Extension Agreement. TR at 1312 (Weathers). Therefore, the Army Corps’ delay in securing
those easements lengthened the delay initially caused by the Army Corps. Pl. Reply at 36–37.
With respect to the Government’s argument that any delay connected to the Line Extension
Agreement was attributed to Ms. Risse’s “confusion,” it was the Army Corps that misled and
misrepresented that MW Builders was going to sign the Line Extension Agreement when it cut out
MW Builders from participating in telephone conferences with Ms. Risse. Pl. Reply at 42; TR at
85 (Probst).
With respect to MW Builders’ schedules, they were accurate and described as “well
managed and sufficiently detailed” by Management Solutions, the consultant hired by the Army
Corps, in contrast with the Government’s retained scheduling expert, Mr. Weathers, who opined
that the schedules lacked sufficient detail. “[C]ontemporaneous project records[, however,] are
more credible than the opinions of witnesses who contradict those records years later during trial
testimony.” Pl. Reply at 46.
With respect to the Government’s contention that MW Builders should have advised the
Army Corps of the Line Extension Agreement earlier, there is no evidence that doing so would
have changed anything. Pl. Reply at 47. As the Government’s expert conceded, securing the
easements was a predicate condition that had to be accomplished before the Line Extension
Agreement could be signed. Pl. Reply at 47 (citing TR at 1312 (Weathers)).
41
Finally, the Government’s assertion that MW Builders failed to apportion delay is “flatly
wrong,” because MW Builders’ expert performed an apportionment analysis and concluded that
140 days of delay could be attributed to a single cause, i.e., the Army Corps’ failure to execute the
Line Extension Agreement in a timely fashion. Pl. Reply at 44 (citing Miltonberger Direct at 11–
18).
d. The Government’s Sur-Reply.
The Government concedes that its argument that evidence of “bad faith” was required to
establish a breach of the duty to cooperate was “too broad,” but there is no evidence that the Army
Corps breached the implied duty of good faith and fair dealing, because it worked hard to resolve
the issue when it became aware of the Line Extension Agreement in March 2012. Gov’t Reply at
8–9. It was MW Builders’ fault that the Government did not learn about that agreement until
March 2012. Gov’t Reply at 9. As such, the delay was caused by NV Energy and MW Builders,
not the Army Corps. Gov’t Reply at 10. In addition, no critical path delay was caused by the
easement issue. Gov’t Reply at 9.
e. The Court’s Resolution.
i. The United States Army Corps Of Engineers Violated
The Duty Of Good Faith And Fair Dealing.
The duty of good faith and fair dealing includes “the duty not to interfere with the other
party’s performance and not to act so as to destroy the reasonable expectations of the other party
regarding the fruits of the contract.” Centex Corp. v. United States, 395 F.3d 1283, 1304 (Fed.
Cir. 2005). “Both the duty not to hinder and the duty to cooperate are aspects of the implied duty
of good faith and fair dealing.” Metcalf, 742 F.3d at 991 (quoting Precision Pine & Timber v.
United States, 596 F.3d 817, 820 n.1 (Fed. Cir. 2010)). Although it “is rarely possible to anticipate
in contract language every possible action or omission by a party that undermines the bargain,”
the terms of the contract and the “nature of that bargain” inform the reasonable expectations of the
parties. See Metcalf, 742 F.3d at 991. Therefore, “the implied duty of good faith and fair dealing
cannot . . . create duties inconsistent with the contract’s provisions.” Precision Pine, 596 F.3d at
831.
The United States Court of Appeals for the Federal Circuit has held that the Government
may violate the implied duty of good faith and fair dealing without “specifically targeting,” but
nevertheless deprive the contractor of the fruits of the contract. See Metcalf, 742 F.3d at 994. In
addition, the Government may violate that duty when its acts or omissions are “inconsistent with
the contract’s purpose and deprive the other party of the contemplated value.” Id. at 991. For
example, an unreasonable “lack of diligence” may violate the implied duty of good faith and fair
dealing. Id. at 991 (quoting Malone, 849 F.2d at 1445). A party also may violate the duty of good
faith and fair dealing by engaging in “subterfuges and evasions.” See Malone, 849 F.2d at 1445;
see also RESTATEMENT (SECOND) OF CONTRACTS § 205 cmt. d (AM. LAW INST. 1981)
(“Subterfuges and evasions violate the obligation of good faith in performance even though the
actor believes his conduct to be justified.”).
42
The Line Extension Agreement was first discussed during a March 13, 2012 conference
call that included NV Energy and MW Builders, wherein the participants agreed that the “contract
will be executed between NV Energy and 63D RSC.” JX 44 at 1. It was only after the 63rd RSC
refused to sign the Line Extension Agreement on March 14, 2012, that the Army Corps tried to
obtain MW Builders’ signature, at the suggestion of Mr. Musgrave, an Army Corps Contracting
Officer’s Representative. PX 501 at GOV_00005389. On March 19, 2012, the Army Corps
convened a conference call with NV Energy, in part “to determine a strategy so that MW Builders
would sign the Line Extension Agreement.” TR at 85 (Probst). But, the Army Corps excluded
MW Builders from that telephone conference. TR at 84–85 (Probst). Ms. Risse, NV Energy’s
attorney, present during the March 19, 2012 telephone conference, testified that NV Energy
“wouldn’t have been asked to consider” having MW Builders sign the Line Extension Agreement,
“if MW Builders wasn’t on board with it.” TR at 590–91 (Risse).
On March 21, 2012, MW Builders informed the Army Corps that it would not sign the Line
Extension Agreement, without a directive from the CO. PX 528. Nevertheless, the Army Corps
proceeded to convene a second telephone conference with NV Energy that again excluded MW
Builders. PX 60C. After this second call, NV Energy’s attorney, Ms. Risse, “thought [her] work
was done[,] unless MW Builders came back and had concerns that we needed to discuss and
change the extension agreement if necessary.” TR at 609 (Risse). The purpose of the Army Corps’
conduct was to convince NV Energy that MW Builders would sign the Line Extension Agreement.
At the same time the Army Corps made these representations to NV Energy, it knew that MW
Builders would not sign the Line Extension Agreement, without a letter from the CO directing
them to do so.32 PX 27 (3/22/12 email stating that MW Builders “will not move forward without
[a] directive from the [Army] Corps”). And, on April 6, 2012, MW Builders sent a letter notifying
the Army Corps that the Project could potentially be delayed, because “the Line Extension
Agreement between the Government and Nevada Energy [was] not yet in place, subsequently
delaying permanent power installation and startup.” JX 58.
On April 26, 2012, the Army Corps first contacted Ms. Risse to begin negotiating the Line
Extension Agreement, because the critical path was being affected. JX 61 at 1–2. Ms. Risse
testified that she found the April 26, 2012 email confusing and “strange,” because it appeared to
suggest that MW Builders was going to sign the Line Extension Agreement (as suggested during
the conference calls in March), but also listed various complaints that the Army Corps and 63rd
RSC had with the Line Extension Agreement. TR at 608–09 (Risse). Moreover, Mr. Finley
appeared to be negotiating terms on the behalf of MW Builders, who was not his client. TR at
608–09 (Risse).
By May 23, 2012, confusion about who was to sign the Agreement continued and was
causing delay on the Project. JX 68. On June 15, 2012, Ms. Risse sent an email to Mr. Finley,
stating that “NV Energy has already compromised by agreeing that the [G]overnment’s contractor
can be the applicant instead of the [G]overnment.” DX 143 at 2. Three days later, Mr. Finley
responded that “What I have been trying to draft is an agreement between the [Army] Corps and
NV Energy. We seem to be working toward different goals.” DX 143 at 1. On June 21, 2012,
32
The CO did not do so, because it would potentially expose the Army Corps to a Request
for Equitable Adjustment. PX 294.
43
Mr. Finley and Ms. Risse had a telephone conference with MW Builders’ attorney, Mr. Mitts,
where the Army Corps agreed that MW Builders was not responsible for signing the Line
Extension Agreement. JX 75 at 1. Thereafter, “drafts were exchanged quickly” and the Army
Corps signed the Line Extension Agreement on July 12, 2012. TR at 626 (Risse); see also
Jt. Stip. ¶ 25.
Regarding the Government attempt to fault Ms. Risse for the uncertainty about the Line
Extension Agreement, no such evidence was proffered to excuse the Army Corps’ conduct of not
being candid with NV Energy about MW Builders’ refusal to sign the Line Extension
Agreement—and to exclude MW Builders’ lawyers from those discussions. The fact that the Line
Extension Agreement issue ultimately was quickly resolved evidences that it was the Army Corps
that was responsible for the uncertainty and delay caused by the Army Corps’ failure to sign the
Line Extension Agreement in a timely manner.
Likewise, the Government’s attempt to shift the blame for lack of the permanent power—
citing the fact that MW Builders did not raise the issue of the Line Extension Agreement until
March 2012, when it was “too late[:] only weeks before permanent power was due”—belies the
record. (Gov’t Post Tr. Br. at 123). Securing easements was a necessary predicate to providing
permanent power to the Project site, that was not addressed by the Army Corps until February 6,
2012. PX 4 (the “[P]roject will not be released for construction scheduling until after all of the
necessary property rights have been provided to NV Energy.”); Jt. Stip. ¶ 21. In fact, the Army
Corps did not even provide an “access letter” to NV Energy until March 16, 2012. Jt. Stip. ¶ 23.
Based on this record, the Army Corps’ conduct regarding the Line Extension Agreement
implicated the duty to not interfere with the other party’s performance, the duty not to hinder, and
the duty to cooperate. Although the September 10, 2010 Contract assigned some electric utility
obligations to MW Builders, no specific party was directed to sign the Line Extension Agreement,
because all the parties were aware of industry practice. Therefore, MW Builders entered into the
bargain with a “reasonable expectation” that the Army Corps was obligated to make arrangements
with respect to the Line Extension Agreement. See Centex Corp., 395 F.3d at 1304 (“The covenant
of good faith and fair dealing . . . include[s] the duty not to interfere with the other party’s
performance and not to act so as to destroy the reasonable expectations of the other party regarding
the fruits of the contract.”). The Army Corps, however, attempted to impose that obligation on
MW Builders by misleading, dilatory, and bad faith conduct. See Metcalf, 742 F.3d at 991.
The Government is correct that the United States Court of Appeals for the Federal Circuit
has held that a Government agency did not violate the duty of good faith and fair dealing with
respect to the contract when it failed to cooperate with a separate, unrelated third party. See
Precision Pine, 697 F.3d at 830. In that case, the United States Forest Service failed to cooperate
with the Fish and Wildlife Service with respect to consultations required under the Endangered
Species Act (“ESA”). Id. But, the “plain language” of the Precision Pine contract stated that its
“provisions [could] be modified, suspended, or even canceled to comply with the ESA.” Id. at
830–31. The September 10, 2010 Contract contains no such reservation. Nevertheless, the Army
Corps represented and continued to represent to NV Energy that MW Builders could or would sign
the Line Extension Agreement, although the Army Corps knew that was not the case. This
evidences that the Army Corps acted in bad faith.
44
For these reasons, the court has determined that the Army Corps violated the duty of good
faith and fair dealing. Metcalf, 742 F.3d at 991.
ii. The United States Army Corps Of Engineers’ Conduct
Caused An Unreasonable Delay.
The United States Court of Appeals for the Federal Circuit also has held that a contactor
may recover for an unreasonable delay, if the Government is “the sole proximate cause of the
contractor’s additional loss, and the contractor would not have been delayed for any other reason
during that period.” Triax-Pacific v. Stone, 958 F.2d 351, 354 (Fed. Cir. 1992); see also Essex
Electro Eng’rs, Inc. v. Danzig, 224 F.3d 1283, 1295 (Fed. Cir. 2000) (“A contractor seeking to
prove the government’s liability for a delay must establish the extent of the delay, the contractor’s
harm resulting from the delay, and the causal link between the government’s wrongful act and the
delay.”). In addition, any Government-caused delay must be “unnecessary or unreasonable in
duration.” P.R. Burke Corp. v. United States, 277 F.3d 1346, 1360 (Fed. Cir. 2002). As a result,
the contractor may not recover, if there is a concurrent delay caused by the contractor or some
other third party. See Triax-Pacific, 958 F.2d at 354 (holding that a contractor could not recover
where a delay was caused, in part, by the contractor’s failure to timely complete prior projects).
But, a contractor may recover when other factors contribute to the delay, provided that there is
proof of a “clear apportionment of the delay and the expense attributable to each party.” T. Brown
Constructors, Inc. v. Pena, 132 F.3d 724, 734 (Fed. Cir. 1997) (quoting Coath & Goss, Inc. v.
United States, 101 Ct. Cl. 702, 714–15 (Ct. Cl. 1944)).
In this case, the Government argues that MW Builders is barred from recovery, because it
failed to apportion the delay caused by the Army’s conduct with respect to the Line Extension
Agreement. Gov’t Reply at 7–8. The trial record, however, reflects that the delay was solely
caused by the Army Corps. As such, MW Builders was not required to provide a “clear
apportionment of the delay and the expense attributable to each party,” because there was only one
party at fault: the Army Corps. See T. Brown, 132 F.3d at 734. 33
The Government next argues that MW Builders’ contemporaneous Critical Path Method
schedules are not accurate and do not support a finding of unreasonable delay. The United States
Court of Federal Claims determined in Blinderman Construction Co. v. United States, 39 Fed. Cl.
529 (Fed. Cl. 1997), aff’d 178 F.3d 1307 (Fed. Cir. 1998), that a contractor may not recover
damages, even though it established that the Government caused an unreasonable delay, where the
contractor did not demonstrate that the delay affected the critical path and the schedules submitted
were not updated in a timely manner, to reflect the delay. Id. at 584–85.
MW Builders’ contemporaneous schedule updates, however, evidence that the permanent
power delay affected the critical path and that delay continued to accumulate:
33
In T. Brown, our appellate court observed that where multiple causes of a delay exist,
apportionment of the delay is required, if either party is to recover. See 132 F.3d at 734. But,
apportionment is not required where the delay results from a single cause. Id.
45
• The February 22, 2012 Schedule Update was the last schedule update issued before
the parties convened a telephone conference to discuss the Line Extension
Agreement. PX 336 at 1. In that update, MW Builders projected a Project
completion date of September 19, 2012. PX 336 at 1.
• The March 30, 2012 Schedule Update was issued after MW Builders and the Army
Corps disagreed about which party was responsible for signing the Line Extension
Agreement. PX 337 at 1. In that schedule update, MW Builders advised that “[w]e
are beginning to forecast a delay [in the critical path] to the overall completion date
of the project due to a lack of permanent power,” particularly because air
conditioning was required in the Training Building to conduct temperature and
moisture sensitive activities, including the installation of Acoustic Ceiling Tiles and
Vinyl Composition Tiles. PX 337 at 1–2. Therefore, permanent power or
generator-provided temporary power, 34 was needed. PX 337 at 2. For the project
not to be delayed, the schedule reflected that permanent power was required by
May 4, 2012. PX 337 at 2.
• The April 26, 2012 Schedule Update reflected that MW Builders needed air
conditioning by May 4, 2012 to comply with the critical path schedule. PX 338 at
3. MW Builders assumed that it would take 7 days to pay NV Energy’s service fee
and NV Energy would need 14 days to procure materials after the Line Extension
Agreement was assigned. PX 338 at 7. Thereafter, NV Energy needed 30 work-
days (42 calendar days) to complete the work required to provide electrical power.
PX 338 at 7. As a result, MW Builders projected a “negative float” of 52 days,
unless power was supplied on or before May 4, 2012. PX 338 at 7. Therefore, the
Project’s completion date was adjusted from September 19, 2012 to November 10,
2012. PX 327.
• The May 28, 2012 Schedule Update continued to reflect that MW Builders was
experiencing delay caused by lack of permanent power. PX 339 at 1. Because
neither permanent power nor sufficient temporary power was available for the air
conditioning system, MW Builders was unable to begin work on the temperature
sensitive critical path activities. PX 339 at 1. Therefore, MW Builders projected a
“negative float” of 86 days. PX 339 at 3. The job completion date was revised to
January 9, 2013. PX 328. 35
34
Generators were present at the Project site, but they were “half the size” needed to
provide sufficient power to the Training Building. JX 64 at 1. In a May 11, 2012 email, Mr.
Probst, the Army Corps Project Manager, suggested to Mr. Musgrave, an Army Corps Contracting
Officer’s Representative, that the Army Corps could mitigate delay by renting a larger generator
so work could commence. JX 64 at 1. But, no additional generator power was provided during
the time the Line Extension Agreement was being negotiated.
35
This adjustment was required to account for the fact that no work took place in December
2012 during Government holidays. PX 328 at MWB-008687.
46
• The July 9, 2012 Schedule Update reflected that the Army Corps was “getting
close” to reaching a Line Extension Agreement with NV Energy, but no
construction was advised by the Army Corps, and “negative float’ had increased to
121 calendar days. PX 340 at 1. MW Builders also advised that “[t]here is a little
available work left within the building due to a lack of permanent power and as a
result many subcontractors have de-mobilized.” PX 340 at 2. The job completion
date was revised to February 6, 2013. PX 329.
• The October 15, 2012 Schedule Update was the first issued after the Line Extension
Agreement was signed on July 23, 2012 and permanent power was available on
September 26, 2012. PX 343 at 1. Therein, it was reported that the Project incurred
165 days of “negative float,” due to delays to critical path activities requiring
conditioned air. PX 343 at 1.
By the time the Line Extension Agreement was executed on July 23, 2012, MW Builders’
contemporaneous Schedule Updates showed a 140-day delay to the critical path; i.e., the difference
between the original completion date of September 19, 2012, and the adjusted completion date of
February 6, 2013. Therefore, unlike the contractor in Blinderman Construction Co., MW Builders
proffered critical path schedules, as they existed before, during, and after the delay. In addition,
MW Builders proffered contemporaneous evidence that the delay in securing power affected
critical path activities, particularly the temperature sensitive indoor construction work in the
Training Building.
Nevertheless, the Government argues that, even if the delay was attributable to the Army
Corps, it was “reasonable in duration.” Gov’t Reply at 10. The Army Corps, however, was the
sole cause the delay, because it failed to obtain the necessary easements, unreasonably attempted
to shift responsibility for executing the Line Extension Agreement to MW Builders, engaged in
misleading discussions with NV Energy and failed to cooperate with MW Builders, causing a 116
day delay. See P.R. Burke, 277 F.3d at 1360 (Government-caused delay is unreasonable, if it is
“unnecessary or unreasonable in duration”) (emphasis added).
For these reasons, the court has determined that the Government violated the duty of good
faith and fair dealing, and caused an unreasonable delay to the Project.
D. The Government’s Affirmative Defense And Counterclaims.
1. The Government’s Affirmative Defense Of Waiver.
The Government’s February 17, 2016 Amended Answer asserted the following affirmative
defenses: (1) MW Builders’ claims are barred, in whole, or, in part, by accord and satisfaction;
(2) MW Builders’ claims are barred, in whole, or, in part, by waiver; and (3) the pass-through
claims of MW Builders’ subcontractors are barred, in whole, or, in part, by waiver. Gov’t Amend.
Answer ¶¶ 39–41. The Government’s December 8, 2016 Proposed Findings Of Fact And
47
Conclusions Of Law, however, presented only an argument relating to the waiver of one of MW
Builders’ subcontractors, Bergelectric. Gov’t Post Tr. Br. at 95. 36
a. The Government’s Argument.
The Government argues that any pass-through claim from Bergelectric is waived. Gov’t
Post Tr. Br. at 98. Under the December 6, 2010 subcontract, Bergelectric was required to sign a
periodic form release, as a condition of payment from MW Builders. JX 9 at 2 (12/6/2010). The
language in the form releases signed by Bergelectric unambiguously waived any claims against
MW Builders and, therefore, against the Government. Gov’t Post Tr. Br. at 97 (citing DX 124 at
2 (4/15/12 Bergelectric Waiver)). Because the language in the releases was unambiguous, the
court must consider their plain meaning, instead of extrinsic evidence of the parties’ course of
dealings or oral testimony. Gov’t Post Tr. Br. at 97.
Assuming arguendo that the court may consider extrinsic evidence, Bergelectric’s claims
still are waived. Gov’t Post Tr. Br. at 97. MW Builders required its subcontractors to sign a
release to protect MW Builders from liability. TR at 715 (Campbell). The Government contends
that MW Builders was aware of the need to modify the scope of the release, if Bergelectric intended
to preserve any pass-through claims, but MW Builders did not do so. Gov’t Post Tr. Br. at 98.
The testimony of Justin Knippel, Bergelectric’s Regional Manager for Las Vegas and Phoenix,
was irrelevant, because he was not the company representative who signed the releases. Gov’t
Post Tr. Br. at 97 (citing TR at 774–75 (Knippel)). Likewise, Mr. Campbell’s testimony is
irrelevant, because he was not a Bergelectric representative and had no personal knowledge about
Bergelectric’s intent, when it signed the releases. Gov’t Post Tr. Br. at 98 (citing TR at 717
(Campbell)).
b. Plaintiff’s Response.
MW Builders required Bergelectric to sign a standard form release to receive payment, but
neither party intended the releases to waive any claim arising from the permanent power delay.
Pl. Post Tr. Br. at 128. Instead, these releases were a contractual prerequisite to Bergelectric
getting paid each month. Pl. Post Tr. Br. at 128. The conduct of the parties after Bergelectric
signed the releases also shows that the parties did not intend for Bergelectric to waive any claims,
e.g., Bergelectric filing a Complaint against MW Builders in the United States District Court for
the Western District of Texas on November 26, 2014; executing an agreement to toll the statute of
limitations on Bergelectric’s claims; and passing Bergelectric’s claims through to the Government
in this suit. Pl. Post Tr. Br. at 128–31. And, as Messrs. Knippel, Campbell, and Sawyer testified
at trial, the parties never intended to waive any claims Bergelectric may have against the
Government. TR at 672–73 (Campbell), 776 (Knippel), 812–13 (Sawyer). Since the standardized
form releases were not intended to waive Bergelectric’s pass-through claims and the Government
has not introduced any other evidence waiving Bergelectric’s claims, the Government has failed
to establish that Bergelectric’s claims are barred. Pl. Post Tr. Br. at 130–31.
36
Although MW Builders partnered with several other subcontractors, MW Builders
elected not to pursue their pass-through claims. Jt. Stip. ¶ 32.
48
c. The Court’s Resolution.
As a matter of law, a subcontractor may not independently file a claim against the
Government, without being in privity. See Severin v. United States, 99 Ct. Cl. 435, 442 (Ct. Cl.
1943) (“The subcontractor could not sue the Government since it has not consented to be sued
except, so far as relevant to this case, for breach of contract. But the Government had no contract
with the subcontractor, hence it is not liable to, nor suable by him.”); see also Erickson Air Crane
Co. v. United States, 731 F.2d 810, 813 (Fed. Cir. 1984) (“The [G]overnment consents to be sued
only by those with whom it has privity of contract, which it does not have with subcontractors.”).
Instead, the prime contractor must bring a “pass-through” claim in its own name on behalf of its
subcontractor. See Severin, 99 Ct. Cl. at 443. The prime contractor, however, may pursue a
subcontractor’s damages claim against the Government, only if the prime contractor is liable to
the subcontractor for those damages. Id.
MW Builders’ subcontract required Bergelectric to sign and execute lien waivers each time
it requested a progress payment. JX 9 at 2 (12/6/10 Bergelectric subcontract). During the Project,
Bergelectric signed periodic waivers as a condition of receiving payment from MW Builders.
DX 124 at 2 (5/9/12 waiver, covering payment until 4/15/12). These waivers stated:
NOW, THEREFORE, effective as of receipt of the payment referenced in this
Application, the undersigned [Bergelectric] irrevocably and unconditionally
releases and waives any and all mechanic’s liens or other liens against the Realty
or any other claims on any bonds or any other claims whatsoever in connection
with this Contract and with the Realty through the end of the period covered by this
Application, reserving however, all lien rights for materials and labor furnished or
performed after said period and hold the Beneficiaries and their respective
successors and assigns harmless against any lien, bond, claims or suits in
connection with the materials, labor, and everything else in connection with this
Contract, except with respect to the retainages to date, if any.
DX 124 at 2 (emphasis added).
This is a general release, because Bergelectric “irrevocably and unconditionally” waived
“any . . . claims whatsoever in connection with th[e] Contract” through the end of “the period
covered by this Application.” DX 124 at 2. Generally, “[t]he rule for releases is that absent special
vitiating circumstances, a general release bars claims based upon events occurring prior to the date
of the release.” Augustine Med., Inc. v. Progressive Dynamics, Inc., 194 F.3d 1367, 1373 (Fed.
Cir. 1999) (quoting Johnson, Drake & Piper, Inc. v. United States, 531 F.2d 1037, 1047 (Ct. Cl.
1976)). In this case, Bergelectric signed periodic waivers for the entire period of permanent power
delay; i.e., from March 13, 2012, when the Line Extension Agreement was first presented to the
Army Corps, through September 26, 2012, when permanent power was made available at the
Project. DX 124 at 2 (5/9/12 waiver, covering payment until 4/15/12); DX 124 at 4 (6/22/12
waiver, covering payment through 5/15/12); DX 124 at 6 (7/20/12 waiver, covering payment
through 6/15/12); DX 124 at 8 (8/22/12 waiver, covering payment through 7/15/12); DX 124 at
10 (10/01/12 waiver, covering payment through 8/29/12); DX 124 at 16 (10/31/12 waiver,
covering payment through 9/30/12); DX 124 at 18 (11/26/12 waiver, covering payment through
10/31/12).
49
To overcome the text of the release, MW Builders and Bergelectric proffered extrinsic
evidence to explain why the written terms of the subcontract were not intended to waive any of
Bergelectric’s pass-through claims. But, any rights that the parties intended to reserve when
executing a release must be expressly stated. See Augustine Med., Inc., 194 F.3d at 1373 (“[I]t is
the burden of the parties entering into a [release] to expressly reserve in the agreement any rights
that they wish to maintain beyond the date of the [release].”).
In this case, Bergelectric agreed “irrevocably and unconditionally” to release and waive
“any other claims whatsoever in connection with this Contract.” DX 124 at 2. The release,
however, contained no express reservation that authorized Bergelectric to pass through a claim
against the Government. Since the language of the release was unambiguous and susceptible only
to one reasonable meaning, the court’s review is limited to the plain meaning without considering
extrinsic evidence. See Barron Bancshares, Inc. v. United States, 366 F.3d 1360, 1375–76 (Fed.
Cir. 2004) (“A contract provision is only ambiguous if susceptible to more than one reasonable
meaning.”). The plain meaning of the phrase “the undersigned irrevocably and unconditionally
releases and waives . . . any other claims whatsoever in connection with this Contract,” waives all
of Bergelectric’s claims against MW Builders and any related pass-through claims against the
Army Corps. DX 124 at 2.
For these reasons, the court has determined that, under the Severin doctrine, Bergelectric
waived all pass-through claims in this case against the Government.
2. The Government’s Counterclaims.
In addition, the Government alleges three counterclaims against MW Builders, based on:
the anti-fraud provision of the Contract Disputes Act, 41 U.S.C. § 7103(c)(2); the Special Plea in
Fraud statute, 28 U.S.C. § 2514; and the False Claims Act, 31 U.S.C. § 3729. Gov’t Amend.
Answer ¶¶ 49–57.
a. Subject Matter Jurisdiction.
Under the Federal Courts Administration Act, 28 U.S.C. § 1503, the United States Court
of Federal Claims has jurisdiction “to render judgment upon any set-off or demand by the United
States against any plaintiff in such court.” In addition, the court has jurisdiction to adjudicate “any
setoff, counterclaim, claim for damages, or other demand [that] is set up on the part of the United
States against any plaintiff making claim against the United States[.]” 28 U.S.C. § 2508.
Because the court has jurisdiction to adjudicate the claims alleged by MW Builders’
December 27, 2013 Complaint, the court also has jurisdiction to adjudicate the counterclaims
alleged in the Government’s February 17, 2016 Amended Answer. See Martin J. Simko Constr.,
Inc. v. United States, 852 F.2d 540, 547 (Fed. Cir. 1988) (“The Claims Court has jurisdiction to
hear government counterclaims asserted under the False Claims Act.”); see also Computer
Wholesale Corp. v. United States, 566 F.2d 1189 (Ct. Cl. 1977) (“If plaintiff had pleaded a proper
claim, defendant would be able to claim a setoff or counterclaim for the liquidated damages under
28 U.S.C. § 1503 or § 2508.”).
On March 24, 2016, MW Builders filed a Motion To Dismiss The Government’s
Counterclaims, arguing that they were not alleged with sufficient particularity, pursuant to RCFC
50
9(b), and should be dismissed for failure to state a claim, pursuant to RCFC 12(b)(6). ECF No.
42. Although the court agrees that the Government’s pleading could have been pled with more
specificity, during the May 4–10, 2016 trial, the court allowed the Government leave to proffer
additional testimony to provide more detail about the Government’s counterclaims, rendering MW
Builders’ March 24, 2016 Motion To Dismiss moot.
b. Standing.
The Government’s February 17, 2016 Amended Answer alleges entitlement to recover
penalties, under the CDA and False Claims Act, because MW Builders submitted a fraudulent
claim to the Army Corps. Gov’t Amend. Answer ¶¶ 52–57. The Government also alleges that
MW Builders’ damages claim is forfeited under the Special Plea in Fraud statute, because MW
Builders attempted to practice fraud against the Government by submitting a certified claim with
an intent to deceive the Army Corps. Gov’t Amend. Answer ¶¶ 49–51. Therefore, the February
17, 2016 Answer alleges that the Government suffered an injury that is concrete, particularized,
and fairly traceable to MW Builders’ actions. See Friends of the Earth, 528 U.S. at 180–81 (“[To
establish standing,] plaintiff must show . . . it has suffered an ‘injury in fact’ that is . . . concrete
and particularized . . . [and] fairly traceable to the challenged action[.]”). In addition, any financial
injury established by the Government can be redressed by a monetary award. Id. (holding that, to
establish standing, the alleged injury can “be redressed by a favorable decision”).
For these reasons, the court has determined that the Government has standing to seek an
adjudication of the counterclaims alleged in the February 17, 2016 Answer.
c. The Government’s Argument.
All three of the Government’s counterclaims are based on the identical allegations of falsity
and fraud. The February 17, 2016 Amended Answer alleges that MW Builders’ December 27,
2012 certified claim, as revised on May 15, 2013, is false and fraudulent, because “MW Builders
knowingly and deliberately overstated its incurred costs.” Gov’t Post Tr. Br. at 83–88.
Specifically, when Mr. Campbell prepared MW Builders’ certified claim, he should have
submitted the actual cost data reflected in MW Builders’ COMET accounting system; instead, Mr.
Campbell elected to estimate the costs claimed, in a manner that was higher than MW Builders’
actual costs. Gov’t Post Tr. Br. at 55–73. 37
In addition, on the General Conditions Worksheet submitted by MW Builders, together
with the certified claim, Mr. Campbell estimated each employee’s labor burden, by using a single
38.75% plug number “across the board.” TR at 1203 (Campbell). The Government, however,
contends that the 38.75% was “contrived and unsupported” and MW Builders did not submit any
37
MW Builders proffered Mr. Campbell as an expert in “reasonable and necessary and
allocable costs for construction project job sites and job site overhead.” TR at 855. Mr. Campbell
also testified as a fact witness. TR at 636–723, 1164–1258. The Government objected to Mr.
Campbell being proffered as an expert. TR at 856. At trial, the court ruled that Mr. Campbell was
not qualified to testify as an expert, but could testify about the work he performed as a lay witness.
TR at 861.
51
documentary evidence to the contrary. Gov’t Post Tr. Br. at 83. The actual labor burden, however,
was lower than 38.75%, as evidenced by cost reports derived from MW Builders’ COMET
accounting system. Gov’t Post Tr. Br. at 63. For example, Job Cost Summaries printed out from
COMET on October 26, 2015, show that the labor burden costs incurred by each employee
assigned to the Project from December 5, 2010 to September 14, 2014 were lower than those
reported on the claim. DX 243, DX 244. 38
In addition, the Claims Worksheet included estimated “Housing” and “Vehicle, Gas, [and]
Maintenance” costs that were “not calculated[,] based upon actual data in the accounting system.”
Gov’t Post Tr. Br. at 68. Instead, Mr. Campbell, estimated an employee’s “Vehicle, Gas, [and]
Maintenance” cost was $7,200 over a period of 24 weeks, but the COMET accounting system
reflected that employee’s “Miscellaneous Auto Costs” were zero. Compare JX 88 at 8 (12/27/12
Claims Worksheet), with DX 243 at 3–4 (10/26/15 COMET printout).
The Claims Worksheet also accounted for employee time billed to the Project when certain
employees were not assigned to the Project, i.e., from approximately April 2012 to September 26,
2012. Gov’t Post Tr. Br. at 71. For example, the Claims Worksheet reflected that Mr. Campbell
was working on the Project 100% of the time, but the COMET accounting system printout shows
that he did not start billing work to the Project until September 9, 2012. DX 243 at 30.
Plaintiff’s expert at trial also confirmed the “overstated and unsupported nature” of the
costs claimed by MW Builders’ certified claim as he “essentially started over” to ascertain MW
Builders’ incurred costs and calculated a daily jobsite cost rate of $3,262.00, a rate lower than the
$4,071.00 daily jobsite cost rate listed in MW Builders’ December 27, 2012 certified claim. Gov’t
Post Tr. Br. at 74–75 (citing Miltonberger Direct at 5, 21). The Government’s damages expert
also confirmed that the December 27, 2012 certified claim’s daily jobsite rate contained
38
The differences identified by the Government are shown in the following table prepared
by the court, based on admitted evidence.
Employee Name Weekly Estimated Labor Weekly COMET Labor Difference
Burden Cost (JX 88) Burden Cost (DX 243,
244)
Ralph Lockeby $ 522.00 $ 367.65 $ (154.35)
Gary Puckett $ 611.00 $ 430.20 $ (180.80)
Gwen Gonzalez $ 265.00 $ 163.85 $ (101.15)
Amanda Klingerman $ 484.00 $ 341.42 $ (142.58)
Sparky Campbell $ 949.00 $- $ (949.00)
The COMET accounting system showed Mr. Campbell’s labor burden to be $0 for the
relevant period. DX 243 at 30. At trial, Mr. Campbell testified $0 was a proper amount, because
his labor burden costs were reflected in an “allocated rate” accounted for elsewhere. Mr.
Campbell, however, never explained where those costs were located. TR at 1213 (Campbell).
52
“overstated” and “unsupported” costs and the 38.75% labor burden figure was “not supported by
any underlying documents.” Weathers Rev. Direct at 60–62.
The December 27, 2012 certified claim represented that MW Builders requested to recover
costs “incurred” both by the company and subcontractors, as a result of delay of the Line Extension
Agreement delay. JX 88 at 1. The dictionary definition of “incur” is: to “become liable or subject
to through one’s own action.” Gov’t Post Tr. Br. at 56 (citing www.dictionary.com/browse/incur).
Therefore, MW Builders’ use of the past tense, i.e., “incurred,” represented that that MW Builders
was liable for those costs in the past. Gov’t Post Tr. Br. at 56. Although some of the entries in the
General Conditions Worksheet were identified as “estimates,” other costs that Mr. Campbell
testified about at trial—e.g., the “Housing” and “Vehicle, Gas, [and] Maintenance” expenses—
were not. Gov’t Post Tr. Br. at 89. MW Builders, however, could have corrected the estimated
costs, but did not do so either in the May 15, 2013 revision to the claim or in the December 27,
2013 Complaint. Gov’t Post Tr. Br. at 89, 91.
Mr. Campbell, MW Builders’ Project Manager, also testified that he prepared the Claims
Worksheet with the expectation that negotiations with the Army Corps would ensue. Gov’t Post
Tr. Br. at 85. A fundamental purpose of the CDA’s certification requirement, however, is to
prevent contractors from overstating claims for bargaining purposes. Gov’t Post Tr. Br. at 79
(citing Fiscbach and Moore Int’l Corp. v. Christopher, 987 F.2d 759, 763 (Fed. Cir. 1993) (holding
that the purpose of certification requirement was to “discourage the submission of unwarranted
contractor claims and to encourage settlements”); see also Daewoo Engineering and Constr. Co.,
Ltd. v. United States, 557 F.3d 1332, 1338–41 (Fed. Cir. 2009) (affirming the determination that a
contractor committed fraud when it knowingly submitted a claim, based upon a “baseless
calculation” as a negotiating ploy). If Mr. Campbell intended to estimate future costs in good faith,
the two certified claims should have stated that MW Builders was submitting estimated, rather
than actual, costs. Gov’t Post Tr. Br. at 92.
The deposition testimony of David Cimpl, the Chief Financial Officer of MW Builders’
parent company, also confirmed that actual costs incurred could have been verified by MW
Builders’ COMET accounting system. Gov’t Post Tr. Br. at 55. According to Mr. Cimpl, “[i]f I
wanted to look at actual job cost . . . I would go to look at what actual job costs are recorded in the
accounting system.” 4/12/16 Cimpl Dep. at 87–88. This testimony is “binding” on MW Builders.
Gov’t Post Tr. Br. at 77 (citing Zip-O-Log Mills, Inc. v. United States, 113 Fed. Cl. 24, 32 (Fed.
Cl. 2013) (“The testimony of a [RCFC] 30(b)(6) witness is binding[.]”). In light of this testimony,
the court should find that the costs submitted in MW Builders’ certified claim were contradicted
by information available in MW Builders’ records and therefore constituted a “fraudulent” claim
under the Special Plea in Fraud, the anti-fraud provision of the CDA, and the FCA. Gov’t Post Tr.
Br. at 84 (citing Ry. Logistics Int’l v. United States, 103 Fed. Cl. 252, 256–259 (Fed. Cl. 2012)
(determining that a contractor’s certified claim was fraudulent, although contractor argued at trial
that claim was based on “rough estimates,” because those estimates were contradicted by
contractor’s invoices). The United States Court of Federal Claims also has determined that a
contractor violated the CDA, the FCA, and the Special Plea in Fraud statute, when it failed to
“utilize the best and readily available evidence, and did not indicate that it was ignoring the best
and readily available evidence,” in submitting a certified claim for payment. Gov’t Post Tr. Br.
at 87–88 (quoting UMC Elecs. Co. v. United States, 43 Fed. Cl. 776, 801–04 (Fed. Cl. 1999)).
53
The Government concludes that MW Builders submitted the December 27, 2012 certified
claim in violation of three separate fraud statutes. First, MW Builders knowingly and intentionally
submitted a certified claim that it could not support, in part, because of a misrepresentation of fact
or fraud, violating the CDA anti-fraud provision, 41 U.S.C. § 7103(c)(2). Gov’t Post Tr. Br. at 93.
Therefore, MW Builders is liable for “an amount equal to the unsupported part of the claim plus
all of the Federal Government’s costs attributable to reviewing the unsupported part of the claim.”
Gov’t Post. Tr. Br. at 93–94 (citing 41 U.S.C. § 7103(c)(2)). The “unsupportable” part of MW
Builders’ claim is $179,647.00, i.e., the daily jobsite rate of $4,071.00, multiplied by 169 days,
minus Mr. Weathers’ calculated daily jobsite rate of $3,008.00, multiplied by 169 days. Gov’t
Post Tr. Br. at 94. In addition, the Government requests the cost of reviewing MW Builders
unsupported claim in the amount of $10,105.00, reflecting the costs incurred for Mr. Weathers’
review. Gov’t Post Tr. Br. at 94 (citing DX 269, DX 268). Therefore, MW Builders is liable under
the CDA for $189,752.00. Gov’t Post Tr. Br. at 94.
Second, MW Builders violated the Special Plea in Fraud Statute, 28 U.S.C. § 2514, by
attempting to practice fraud against the Government, either recklessly or with the specific intent
to deceive. Gov’t Post Tr. Br. at 93. Under the Special Plea in Fraud statute, a claim against the
Government is forfeited in its entirety, if the contractor: (1) knew that a claim was false; and (2)
intended to deceive the Government by its submission. Gov’t Post Tr. Br. at 78 (citing Daewoo
Eng’g, 557 F.3d at 1341); see also American Heritage Bancorp v. United States, 61 Fed. Cl. 376,
391 (Fed. Cl. 2004) (determining that a contractor may violate the Special Plea in Fraud statute,
even if it does not know “for certain” that the statements were false, if the statements were made
with “reckless disregard for the truth.”). To establish the requisite element of scienter in this case,
the Government needs to demonstrate only that Mr. Campbell and MW Builders acted “recklessly”
by submitting the December 27, 2012 claim. Gov’t Post Tr. Br. at 93.
Third, MW Builders knowingly presented a “false or fraudulent claim for payment,” in
violation of the FCA. Gov’t Post Tr. Br. at 80 (citing 31 U.S.C. § 3729(a)(1)). A person may act
“knowingly” for purposes of the FCA, if they act with reckless disregard toward the truth; no
specific intent to defraud is required. Gov’t Post Tr. Br. at 81 (citing 31 U.S.C. § 3729(b)(1)).
Moreover, MW Builders knowingly submitted a false claim and consciously and recklessly
disregarded accurate information in its accounting system. Gov’t Post Tr. Br. at 83. As such, MW
Builders is liable for the FCA’s civil penalty of $11,000. Gov’t Post Tr. Br. at 85.
d. Plaintiff’s Response.
MW Builders responds that the “[t]he Government’s positions are out of touch with the
practical realities of the construction industry, the facts of this case, and controlling caselaw.” Pl.
Post Tr. Reply Br. at 1. As an initial matter, Mr. Cimpl’s testimony that actual costs could be
derived from the COMET accounting system is not a “binding” admission of fraud by MW
Builders; RCFC 30(b)(6) testimony “is just testimony” and “evidence that can be used like any
other evidence.” Pl. Post Tr. Reply Br. at 6 (citing A.I. Credit Corp. v. Legion Ins. Co., 265 F.3d
630, 637 (7th Cir. 2001) (“[T]estimony given at a Rule 30(b)(6) deposition is evidence which, like
any other deposition testimony, can be contradicted and used for impeachment purposes.”)).
With respect to the statutory arguments, the Government has the burden to establish “clear
and convincing evidence” of fraudulent intent under the Special Plea in Fraud statute. Pl. Post Tr.
54
Reply Br. at 7–8. The anti-fraud provision of the CDA requires proof of specific intent to defraud,
and defines “misrepresentation of fact” as “a false statement of substantive fact . . . made with
intent to deceive or mislead.” Pl. Post Tr. Reply Br. at 13–14 (41 U.S.C. § 7109(9) (internal
correction omitted)). Only the FCA places a contractor at risk for liability and damages, without
evidence of specific intent to defraud, because the standard under the FCA is “reckless disregard
for truth,” i.e., showing of an “aggravated form of gross negligence, or gross negligence plus.”
Pl. Post Tr. Reply Br. at 14 (citing UMC Elecs. Co., 43 Fed Cl. at 819 n.15).
MW Builders also rejects the Government’s contention that Mr. Campbell’s inclusion of
his estimated salary was false, because his salary was not reflected in MW Builders’ COMET
accounting system. Pl. Post Tr. Reply Br. at 21. The fact that the accounting system did not charge
Mr. Campbell’s salary to the Project does not mean that Mr. Campbell’s salary was not incurred,
although Mr. Campbell’s certified claim was an estimate of the additional costs MW Builders
incurred after the Project’s scheduled completion. Pl. Post Tr. Reply Br. at 21.
The Government is also incorrect that Mr. Miltonberger’s expert testimony should be read
as supporting a finding of falsity. Pl. Post Tr. Reply Br. at 22. The primary difference between
the $3,262.00 daily cost rate that Mr. Miltonberger calculated (the “Kenrich Rate”), and Mr.
Campbell’s daily cost rate of $4,071.00 was that the daily cost rate used costs incurred, but not
reflected in MW Builders’ accounting system for the project, e.g., the non-union “gopher” labor
and Mr. Campbell’s salary. Miltonberger Direct at 34-37.
Consequently, the only “potentially problematic” portion of MW Builders’ claim is the
Labor Burden: Mr. Campbell used a Labor Burden of 38.75%, but Mr. Miltonberger used the
Labor Burden recorded by MW Builders’ cost accounting system between March 1, 2012, and
October 21, 2012, or 27.31%. Pl. Post Tr. Reply Br. at 22–23 (citing Miltonberger Direct at 35).
The 38.75% Labor Burden, however, was not “baseless,” because Mr. Campbell reasonably
decided to rely on a Labor Burden that MW Builders used on a change order proposal for additional
work completed in November 2011 related to the design of the Project’s water lines. Pl. Post Tr.
Reply Br. at 23; see also PX 651 (11/4/11 change order proposal); Miltonberger Direct at 11
(discussing the water line modification).
With respect to intent, although Mr. Campbell’s preparation of the certified claim could be
characterized “sloppy, ignorant, . . . and potentially negligent,” it was not made with any intent to
defraud. Pl. Post Tr. Reply Br. at 27 (citing TR at 1229). Although the Government cites to cases
where the United States Court of Federal Claims determined that a contractor acted with intent to
defraud, those cases are distinguishable: Daewoo Engineering involved a contractor that
“drastically” inflated its claim by $50 million, 557 F.3d at 1339; and UMC Electronics involved a
contractor that charged the Government for materials that the contractor never invoiced nor
received, 43 Fed. Cl. at 809. Mr. Campbell, however, admitted his mistake and the Government
offered no explanation why MW Builders would commit fraud to claim only $179,647.00. 39 Pl.
39
The Government submits that the “unsupportable” part of MW Builders’ claim is
$179,647.00 or the difference between the December 27, 2012 certified claim’s daily jobsite rate
of $4,071.00, multiplied by 169 days minus the Government’s damages expert Mr. Weathers’
calculated daily jobsite rate of $3,008.00, multiplied by 169 days. Gov’t Post Tr. Br. at 94.
55
Post Tr. Reply Br. at 24–25. Finally, Mr. Campbell’s testimony that he would be willing to
negotiate evidences the willingness to settle, but does not reflect an intent to defraud. Pl. Post Tr.
Reply Br. at 26.
e. The Government’s Reply.
The Government replies that the following facts “conclusively establish” that MW Builders
submitted a claim, with “deliberate ignorance” and “reckless disregard” of its falsity: (1) on
December 27, 2012, MW Builders could have retrieved actual cost data from the COMET
accounting system; (2) MW Builders knowingly did not use this information, but instead filed a
certified claim, based on estimated costs; (3) the December 27, 2012 certified claim sought costs
“incurred” by the delay in the delivery of permanent power; (4) Mr. Campbell admitted that the
December 27, 2012 certified claim included errors; (5) MW Builders never informed the Army
Corps that the December 27, 2012 certified claim included estimated costs; (6) MW Builders did
not specify that costs were estimated, nor did it explain the estimating process; (7) MW Builders’
December 27, 2013 Complaint included the same costs; (8) Mr. Miltonberger did not testify that
the jobsite overhead costs in the December 27, 2012 certified claim were correct, but estimated
they were lower; and (9) MW Builders admitted that it should have used actual costs in its claim.
Gov’t Post Tr. Reply Br. at 1–2. Together, these facts establish that MW Builders violated the
FCA. Gov’t Post Tr. Reply Br. at 2. The Government adds that these facts also establish that MW
Builders acted with specific intent to defraud the Army Corps, and violated the Special Plea in
Fraud statute and the antifraud provision of the CDA. 40 Gov’t Post Tr. Reply Br. at 2–3.
f. The Court’s Resolution.
i. Regarding The Anti-Fraud Provision Of The Contract
Disputes Act.
Under the CDA’s anti-fraud provision, a contractor that is “unable to support any part of
the contractor’s claim,” as a result of “misrepresentation of fact or fraud,” is liable to the
Government for an amount equal “to the unsupported part of the claim plus all of the Federal
Government’s costs attributable to reviewing the unsupported part of the claim.” 41 U.S.C. §
7103(c)(2). A “misrepresentation of fact” is “a false statement of substantive fact, or conduct that
leads to a belief of a substantive fact material to proper understanding of the matter in hand, made
with intent to deceive or mislead.” 41 U.S.C. § 7101(9); see also Comm. Contractors, Inc. v. United
States, 154 F.3d 1357, 1362 (Fed. Cir. 1998) (“To recover under the CDA, the government is
required to establish that the contractor made false or fraudulent statements in its submitted claim
with an intent to deceive or mislead the [G]overnment.” (emphasis added)). Therefore, to establish
a violation of the CDA, the Government must prove, by a preponderance of evidence, falsity and
40
The Government adds that the December 27, 2012 certified claim’s failure to
differentiate between actual and estimated costs violated the FAR that differentiates between
“actual costs” and “forecasted costs.” Gov’t Post Tr. Br. at 86 (citing 48 C.F.R. § 15.408tbl. 15-2).
56
intent to defraud. See 41 U.S.C. §§ 7101(9), 7103(c)(2); see also Daewoo Eng’g, 557 F.3d at 1335(“The [G]overnment must establish this falsity and intent by a preponderance of the evidence.”).
The General Conditions Worksheet included a column, titled “Construction Staff” that
listed certain MW Builders employees by name and a column titled “Quantity,” that listed the
number of weeks they worked, up to a maximum of 24 weeks, i.e., 168 days. JX 88 at 6–9. A
percentage column entitled “No.” indicated the percentage amount of the “Quantity” period that
any particular employee worked. An example from the Claims Worksheet is shown below:
JX 88 at 6.
The General Conditions Worksheet also showed that MW Builders’ construction staff cost
was based on Mr. Campbell working 100% of the time for a 24 week period, i.e., spending 168
days working on the Project. JX 88 at 6. At trial, Mr. Campbell testified that he did not cite this
24 week time period for a particular period of time. TR at 1191. Instead, he testified that “I am
not saying it does comprise of any date. I am just saying it’s a calculation of 24 weeks. It was
going to take 24 weeks to complete the project. We were delayed 24 weeks, so [it] is the cost we
were going to incur over the period of 170 days.” TR at 1191.
In addition, the General Conditions Worksheet included “Labor Burden” costs for each of
MW Builders’ employees, including payroll taxes, workman’s compensation, and insurance. JX
88 at 6–9; 4/12/16 Cimpl Dep. at 33, 41 (explaining the meaning of labor burden costs). Mr.
Campbell calculated each employee’s labor burden by calculating an amount equal to 38.75% of
each employee’s labor costs. TR at 1203 (Campbell). This 38.75%, however, was a “plug
number” that MW Builders used to calculate labor burden on a proposed change order submitted
during the course of the Project. TR at 1227 (Campbell). In addition to the labor burden, the
Claims Worksheet listed the following expenses for each employee: “Relocation;” “Housing
Expenses;” “Fringes;” and “Vehicle, Gas, [and] Maintenance.” JX 88 at 6–8. At trial, Mr.
Campbell testified that he estimated the “Housing Expenses” and “Vehicle, Gas, [and]
Maintenance” expenses. TR at 1223 (Campbell). With respect to the “Fringes,” Mr. Campbell
testified that, although he did not estimate those costs, he now believed mistakes were made in
calculating the amount of fringe for at least two employees. TR at 1234 (Campbell).
At trial, Mr. Campbell also testified that, at the time the certified claim was submitted, he
was “very confident” in the costs reported on the General Conditions Worksheet. TR at 1176
(Campbell). But, Mr. Campbell also testified that making estimates led to “multiple errors on [the]
form;” some benefitted the Government and some benefitted MW Builders. TR at 1177
(Campbell). In short, the Claims Worksheet was “not accurate,” in hindsight. TR at 1176
57
(Campbell). Mr. Campbell, however, was not concerned about submitting estimates at the time,
because of the expectation that the certified claim would lead to negotiations with the Army Corps
and, possibly, result in a change order. TR at 1181–83 (Campbell).
Therefore, the Government argues that Mr. Campbell could and should have used MW
Builders’ accounting system in reporting the “actual costs” that MW Builders incurred from the
Line Extension Agreement delay. Gov’t Reply at 1–2; see also 4/12/16 Cimpl Dep. at 87–88 (“If
I wanted to look at actual job cost . . . I would go to look at what actual costs are recorded in the
accounting system.”). Instead, Mr. Campbell estimated the costs on the General Conditions
Worksheet in November 2012, and submitted with MW Builders’ December 27, 2012 certified
claim, based on his assumption that the project was delayed by 24 weeks (169 days), as a result of
the lack of permanent power:
[THE GOVERNMENT]: Okay. So what is -- what time period does this 24-week
period comprise? From what date to what date?
[MR. CAMPBELL]: I am not saying it does comprise of any date. I am just saying
it's a calculation of 24 weeks. It was going to take 24 weeks to complete the project.
We were delayed 24 weeks, so is the cost we were going to incur over the period
of 170 days.
....
[THE GOVERNMENT]: All right. And specifically we are talking about 169 days
as being the permanent power delay; right?
[MR. CAMPBELL]: Not necessarily a time frame of the permanent power delay,
but the time frame that it was going to take to complete the project. So the -- you
know, once -- once we are able to start work and everything, we have about 24
weeks to do it in. So this is the staff that was calculated to complete the project for
the delay of 170 days or 24 weeks. I am not -- this form, I didn't go [to the
accounting system] and say -- I didn't look at any particular date and time frame. I
didn't put that in a box. I just said, we were delayed 24 weeks, and we are
calculating the costs of this staff for 24 weeks to complete the project.
TR at 1191–92; see also TR at 1238–39 (Campbell) (“I put together the worksheet: This is the
typical costs we are going to incur on the job, and calculated an amount for 24 weeks.”).
In other words, instead of specifying the exact period in which MW Builders incurred
actual costs attributable to the delay, Mr. Campbell estimated the costs MW Builders would incur
over a hypothetical 169 days i.e., the time MW Builders’ performance was delayed, because of the
absence of permanent power. When estimating these costs, Mr. Campbell also used a 38.75%
“Labor Burden Percentage” that MW Builders submitted to the Army Corps on a prior Project
Change Order Proposal on November 4, 2011. PX 651; see also Miltonberger Direct at 11. Then,
Mr. Campbell used these cost estimates to calculate a daily jobsite overhead rate of $4,071.00—a
rate higher than the $3,262.00 daily cost estimated by MW Builders’ damages expert, Mr.
58
Miltonberger, and the $3,008.00 daily cost estimated by the Government’s damages expert, Mr.
Weathers. 41 Miltonberger Direct at 33–34; Weathers Rev. Direct at 69–70.
It is true that MW Builders’ December 27, 2012 certified claim did not state that MW
Builders reported only estimated future costs, instead of costs incurred over a specific time period,
(JX 88 at 1, 9–10; TR at 1209 (Campbell)). And, it is also true that Mr. Campbell testified that he
made “multiple mistakes” in preparing the General Conditions Worksheet (TR at 1176, 1216
(Campbell) (admitting that the worksheet was “not accurate”)). 42 Mr. Campbell also admitted that
he should not have estimated a prospective daily jobsite overhead rate, but instead should have
utilized the data in MW Builders’ accounting system. TR at 1229 (Campbell). In short, the
General Conditions Worksheet used to calculate costs in the December 27, 2012 certified claim
was inaccurate and misleading. JX 88 at 6. But, MW Builders included a caveat that “[t]hese
costs reflect our best knowledge at the present time, however, we reserve our right to revise this
amount as may be necessary at a later date.” JX 88 at 2.
The fact that MW Builders should have used actual costs, instead of estimated costs, does
not evidence that MW Builders acted with a specific intent to defraud the Government. Although
the Government cites to several cases where it was determined that a poorly-supported claim
evidenced specific intent to defraud, these cases are distinguishable. The Government cites UMC
Electronics Co., a non-precedential opinion, for the proposition that a contractor acts with
fraudulent intent and violates the CDA, when it submits a claim based on estimated costs, instead
of utilizing the “best and readily available evidence” of actual costs. Gov’t Post Tr. Br. at 88.
There, the contractor submitted a claim for equitable adjustment that it could be obligated to pay,
based on the escalation clauses of vendor purchase orders. See UMC Elecs. Co., 43 Fed. Cl. at
817–18. But, the vendors did not bill the contractor, nor did the contractor pay those amounts. Id.
Moreover, the contractor, made “repeated and unequivocal representations” that the costs were
invoiced “actual costs.” Id. at 798. In addition, when the equitable adjustment was filed, 99% of
the vendor invoices were much lower than the amounts claimed. Id. at 820–21. MW Builders,
however, neither expressly nor fraudulently characterized their estimated costs as “actual costs.”
Next, the Government cites Daewoo for the proposition that when a contractor submits a claim as
a mere “negotiating ploy,” that is tantamount to fraudulent intent. See Daewoo Eng’g and Constr.
Co. v. United States, 73 Fed. Cl. 547, 585 (Fed. Cl. 2006), aff’d, 557 F.3d 1332 (Fed. Cir. 2009).
41
The difference between the Government’s expert Mr. Weathers’ rate (the “CPMI rate”)
and MW Builders’ expert Mr. Miltonberger’s rate (the “Kenrich rate”) is attributable to the period
of time that each attributed to the delay caused by the absence of permanent power at the Project.
Compare Weathers Rev. Direct at 70, with Miltonberger Direct at 34 (“The $245 per day variance
between the Kenrich Rate of $3,262 and the CMPI Rate of $3,008 is solely due to Mr. Weathers’
improper use of a truncated time period.”). Mr. Weathers arrived at a daily rate, based on costs
incurred during the 153 days between May 1, 2012 and September 30, 2012. Weathers Rev. Direct
at 69. In contrast, Mr. Miltonberger calculated a daily rate, based on costs incurred during the 245
days between March 1, 2012, and October 31, 2012. Miltonberger Direct at 33.
42
Some of these mistakes favored the Government. Miltonberger Direct at 34 n.124
(“[C]alculation errors favored the Government in that they lowered the daily rate $375 from $4,446
to $4,071[.]”).
59
But in Daewoo, the claims at issue were inflated by $50 million and “baseless;” MW Builders’
claim was not baseless, but its “best knowledge” at the time the claim was submitted. JX 88 at 2.
Understandably, the Government seized on Mr. Campbell’s testimony that he submitted
the December 27, 2012 certified claim with an expectation it would lead to settlement negotiations
with the Army Corps, as proof of intent to defraud. Gov’t Post Tr. Br. at 85; see also TR at 1181–
82 (Campbell). But, MW Builders’ willingness to settle what it believed in good faith to be a valid
certified claim does not evidence intent to defraud. TR at 1176 (Campbell) (“At the time I put [the
General Conditions Worksheet] together, I was very confident in the costs that were provided in
that form, were accurate.”). In fact, one reason Congress enacted the CDA’s certification
requirement to “encourage settlements.” See Fischbach and Moore Int’l Corp., 987 F.2d 759, 763
(Fed. Cir. 1993) (emphasis added).
The Government is correct that MW Builders’ claim was overstated by $179,647.00. Gov’t
Post Tr. Br. at 94. But, MW Builders’ damages expert explained: part of Mr. Campbell’s daily
cost rate was higher than Mr. Miltonberger’s, but the majority of that difference was attributable
to Mr. Campbell including certain non-Union labor and material costs 43 and his salary, which were
not assigned to the Project by MW Builders’ accounting system. Miltonberger Direct at 34–37.
He characterized Mr. Campbell’s assignment of these costs, however, as “somewhat subjective.”
Miltonberger Direct at 37. The remainder of the difference is attributable to Mr. Campbell taking
the 38.75% “Labor Burden Percentage” that MW Builders used in a previous November 4, 2011
Change Order Proposal and applying it in calculating the December 27, 2012 certified claim.
Miltonberger Direct at 35; see also PX 651 (change order proposal). But these decisions do not
evidence specific intent to defraud the Government. And, the Government proffered no evidence
that MW Builders certified the December 27, 2012 claim was either made or submitted, without
an honest belief that it reflected what MW Builders was owed.
For these reasons, the court has determined that the Government did not establish that MW
Builders acted with an intent to defraud by a preponderance of the evidence or otherwise violated
the anti-fraud provision of the CDA in submitting the December 27, 2012 certified claim.
ii. Regarding The Special Plea In Fraud.
To establish a violation of the Special Plea in Fraud statute, 28 U.S.C. § 2514, the
Government must show by “clear and convincing evidence that the contractor knew that its
submitted claims were false, and that it intended to defraud the [G]overnment by submitting those
claims.” Veridyne Corp. v. United States, 758 F.3d 1371, 1376–77 (Fed Cir. 2014) (quoting
Daewoo, 557 F.3d at 1342). Proof of “negligence and ineptitude,” however, does not evidence
intent to defraud under 28 U.S.C. § 2514. See Miller v. United States, 213 Ct. Cl. 59, 69 (Ct. Cl.
43
The non-union labor costs included weekly cleanup costs, janitorial services, weather
protection, and “gopher” work, but was labeled as an “estimate” on the General Conditions
Worksheet. JX 88 at 9. The “non-time related” material costs included relocation, temporary
facility, and safety costs. JX 88 at 9–10.
60
1977) (holding that a contractor’s “confused and incorrect” invoices, although evident of a “pattern
of carelessness and slothfulness,” did not rise to the level of deliberate fraud.).
The Government argues that it has shown clear and convincing evidence that the December
27, 2012 certified claim was submitted with the specific intent to defraud. Gov’t Post Tr. Reply
Br. at 3. But, since the Government did not establish intent to defraud by a preponderance of the
evidence, under the anti-fraud provisions of the CDA, as a matter of law, it cannot show an intent
to defraud under the heightened clear and convincing evidence standard, under the Special Plea in
Fraud statute. See Veridyne Corp., 768 F.3d at 1376–77. In the alternative, the Government argues
that it need not show clear and convincing evidence of “scienter,” because the United States Court
of Federal Claims determined, in American Heritage Bancorp, that a “maker of false statements
can have the requisite scienter under [28 U.S.C.] § 2514[,] even if he does not know for certain
that his statements are false, as long as the statements are made with reckless disregard for the
truth.” Gov’t Post Tr. Br. at 78 (quoting 61 Fed. Cl. at 391). This non-binding decision, however,
is contrary to the express language of 28 U.S.C. § 2514 and is not supported by appellate precedent.
Unlike the FCA, the Special Plea in Fraud statute contains no express language that permits
a finding of fraud, based on a contractor’s “recklessness.” See 28 U.S.C. § 2514 (“A claim . . .
shall be forfeited by any person who corruptly practices or attempts to practice any fraud[.]”).
“Corruptly,” 44 however, does not equate to a reckless violation of the statute, but requires actions
are deliberate and evidence specific intent to defraud. Therefore, the United States Court of
Appeals for the Federal Circuit has held that a contractor violates the Special Plea in Fraud statute
only when a false claim is submitted both with actual knowledge of falsity and an intent to defraud.
See Veridyne Corp., 758 F.3d at 1376–77 (“To prevail under section 2514, the [G]overnment must
establish by clear and convincing evidence that the contractor knew that its submitted claims were
false, and that it intended to defraud the [G]overnment by submitting those claims.” (emphasis
added and internal quotation marks omitted)); see also Daewoo Eng’g, 557 F.3d at 1341 (same);
Glendale Fed. Bank, FSB v. United States, 239 F.3d 1374, 1379 (Fed. Cir. 2001) (same); Comm.
Contractors, Inc. v. United States, 154 F.3d 1357, 1362 (Fed. Cir. 1998) (same); Young-Motenay,
Inc. v. United States, 15 3d 1040, 1042 (Fed. Cir. 1994) (same).
For these reasons, the court declines to read the Special Plea in Fraud Statute as permitting
a finding of fraud, based upon a contractor’s “reckless disregard for truth,” and has determined
that MW Builders did not violate the Special Plea in Fraud statute by submitting the December 27,
2012 certified claim.
iii. Regarding The False Claims Act.
Under the FCA, any person who “knowingly” presents a “false or fraudulent claim for
payment” to the Government or who “knowingly makes, uses, or causes to be used, a false record
44
In 1948, when the Special Plea in Fraud statue was enacted, “corrupt” was defined as
“changed from a state of uprightness, correctness, truth, etc. to a bad state; vitiated; depraved;
debased; perverted; as corrupt language; corrupt judges.” Corrupt, WEBSTER’S NEW
INTERNATIONAL DICTIONARY OF THE ENGLISH LANGUAGE 599 (2d ed. 1948); see also Pub. L. No.
80-773, ch. 646, 62 Stat. 978 (1948) (enacting the Special Plea in Fraud Statute into law).
61
or statement material to a false or fraudulent claim,” is liable for a civil penalty of not less than
$5,500 and not more than $11,000, plus three times the amount of any damages sustained by the
Government. See 31 U.S.C § 3729(a)(1)(A), (B); see also 28 C.F.R § 85.3(a)(9) (adjusting the
FCA penalties to $5,500 and $11,000). Again, “[t]he Government must establish a violation of
the False Claims Act by a preponderance of the evidence.” See Daewoo Eng’g, 557 F.3d at 1340.
“Claim” is defined by the FCA as any “request or demand, whether under contract or
otherwise, for money or property” that is presented “to an officer, employee, or agent of the United
States.” 31 U.S.C. § 3729(b)(2)(A)(i). A claim is “false or fraudulent” when it includes a material
misrepresentation. See Universal Health Servs., Inc. v. United States, 136 S. Ct. 1989, 2002–03
(2016) (“A misrepresentation . . . must be material to the Government’s payment decision in order
to be actionable under the False Claims Act.”). A misrepresentation is “material” when it has “the
natural tendency to influence, or be capable of influencing, the payment or receipt of money or
property.” 31 U.S.C. § 3729(b)(4). With respect to knowledge, a person acts “knowingly” for
purposes of the FCA, even without actual knowledge of falsity, if the person “acts in deliberate
ignorance of the truth or falsity of the information” or “acts in reckless disregard of the truth or
falsity of the information.” 31 U.S.C. § 3729(b)(1)(A). Reckless disregard may be evidenced by
a “pattern of carelessness and slothfulness,” such as the “failure to keep an inventory, [a] lack of
payroll records . . . and confused and incorrect invoices.” See Miller, 213 Ct. Cl. at 69–70.
Therefore, a contractor acts with reckless disregard, when an inaccurate claim is submitted for
payment without making a minimal examination of the records that is reasonable and prudent
under the circumstances. Id. at 70 (holding that a contractor violated the FCA when he did not
check the material costs claimed against inventory). The Government asserts that MW Builders
recklessly submitted a false claim when it submitted the December 27, 2012 Certified Claim.
Gov’t Post Tr. Reply Br. at 2.
MW Builders’ Senior Operations Manager and on-site Project Manager, Mr. Campbell,
Operations Manager Greg Herriott, and MW Builders’ President, Jason Evelyn prepared MW
Builders’ December 27, 2012 Certified Claim. TR at 1172–1176 (Campbell). In November 2012,
Mr. Campbell prepared the Claim Worksheet to support MW Builders’ claim. TR at 1178
(Campbell). 45 Mr. Herriott prepared the letter accompanying the Claim Worksheet, wherein MW
Builders requested to recover costs “incurred” as a result of the Line Extension Agreement delay.
TR at 1172 (Campbell); see also JX 88 at 1. After receiving these documents, Mr. Evelyn signed
and certified the December 27, 2012 claim prior to submission. TR at 741 (Evelyn). Mr. Evelyn
was an experienced contractor, who previously performed “hundreds of millions of dollars” worth
of construction work for the Government over the nineteen years that he worked at MW Builders,
but he did not recall any other situation when the company submitted a claim to a CO. TR at 725
(Evelyn). When Mr. Campbell presented the Claims Worksheet to Mr. Evelyn for certification,
he informed Mr. Evelyn that he felt “very comfortable” about the costs claimed, and he believed
the claim was “accurate.” TR at 1178 (Campbell). Mr. Evelyn briefly reviewed the claim, but did
45
In August 2012, Mr. Herriott, MW Builders’ on-site Project Manager, became ill with
cancer. TR at 639 (Campbell). This required Mr. Campbell to assume Mr. Herriott’s on-site
responsibilities and also prepare the December 27, 2012 Certified Claim, although he did not have
Mr. Herriott’s firsthand knowledge of what costs were assigned to the Project. TR at 639–40
(Campbell).
62
not participate in the preparation process and did not review any of the accounting backup.
TR at 742 (Evelyn).
The court does not disagree with the Government’s view that Mr. Evelyn’s review was not
as thorough as it could have been. But, in other cases where the United States Court of Federal
Claims has found FCA liability, there was not even a minimal examination of records. For
example, in Gulf General Enterprises Co. v. United States, 114 Fed. Cl. 258 (Fed. Cl. 2013), the
general manager of the contracting company testified that he did not examine an attorney-prepared
certified claim that he had signed until prior to his deposition during discovery. Id. at 295. If he
had examined the claim, he would have discovered that his company claimed approximately
$7,000,000 in damages when the Government only could order a maximum of $1,447,457.22
under the contract. Id. at 328. Under these circumstances, the court determined that the contractor
acted with reckless disregard of the truth. Id. at 329. Similarly, in Railway Logistics
International v. United States, 103 Fed. Cl. 252 (Fed. Cl. 2012), the court found that the contractor
knowingly submitted a false claim in violation of the FCA, despite the contractor’s argument that
it was guilty only of “poor record-keeping,” because it submitted an “obviously and grossly
inflated” claim that exceeded the actual cost by at least $1,800,000. Id. at 258–59.
In this case, however, the costs reported on MW Builders’ Claims Worksheet were not
facially false or inconsistent. JX 88 at 6–10. Mr. Campbell’s estimated costs were similar to the
actual costs recorded in MW Builders’ accounting system and most of the difference is accounted
for by his decision to include certain costs, such as the non-union labor costs, assigned to the
Project. Miltonberger Direct at 34–37. The other difference arose from Mr. Campbell’s use of a
38.75% Labor Burden that was used on a prior change order. Miltonberger Direct at 35.
Therefore, there was nothing in the December 27, 2012 Certified Claim that appeared to be as
glaringly inconsistent as the $5 million of supported costs in Gulf General Enterprises Co. or the
$1,800,000 million in Railway Logistics International. As such, the court declines to find that
MW Builders’ pre-submission review of its claim was reckless, i.e., grossly negligent.
For these reasons, the court has determined that MW Builders did not violate the FCA
when it submitted the December 27, 2012 Certified Claim.
IV. CALCULATION OF DELAY CAUSED BY THE UNITED STATES ARMY CORPS
OF ENGINEERS’ BREACH AND DAMAGES.
Since the court has determined that the Army Corps violated the duty of good faith and fair
dealing by attempting to shift the contractual obligation to sign the Line Extension Agreement to
MW Builders, the court must determine the extent of the unreasonable delay that was caused by
the Army Corps’ conduct, and the costs MW Builders.
63
A. The Parties’ Scheduling Experts.
1. Plaintiff’s Scheduling Experts.
a. Mr. Neil W. Miltonberger. 46
Mr. Miltonberger was retained by MW Builders to “determine the durations and root
causes of delays to MW Builders’ work and identify and quantify resulting economic damages to
MW Builders.” Miltonberger Direct at 2. Mr. Miltonberger performed an “Observational/
Dynamic/Contemporaneous As-Is” analysis, i.e., he: (1) “observed” MW Builders’
contemporaneous project schedules; (2) “dynamically” considered changes in schedule “logic,”
i.e., the order in which activities must be performed, that were incorporated in the schedules, as
they were updated; and (3) reviewed the contemporaneous schedules “as-is,” i.e., without any
after-the-fact changes. Miltonberger Direct at 8.
The initial Project Substantial Completion date was August 30, 2012, but MW Builders did
not achieve that objective until October 17, 2013, because the Project was delayed by 413 days.
Miltonberger Direct at 3. Mr. Miltonberger divided this delay into three time periods, or
“Windows 1, 2, and 3.” Miltonberger Direct at 9. Window 1 covered the period from the
November 9, 2010 Notice To Proceed through February 22, 2012, including 20 days of critical
path delay relating to waterline design revisions. Miltonberger Direct at 9, 11. Window 2 covered
the period from February 22, 2012, to October 31, 2012, including 170 days of delay. Miltonberger
Direct at 3, 9. Window 3 covered the period from October 31, 2012, when MW Builders began
installing temperature and humidity sensitive material, until October 13, 2013, the substantial
complete date. Miltonberger Direct at 18–19. Window 3 included 223 days of delay.
Miltonberger at 9.
The Window 1 delay was resolved by a January 2012 Change Order, pursuant to which the
Project Substantial Completion was extended 20 days, i.e., until September 19, 2012.
Miltonberger Direct at 11. The Window 3 delay likewise was resolved by several change orders
issued by the Army Corps, that granted MW Builders a total of 247 extra days. Miltonberger
46
Mr. Miltonberger is the Vice President of the Kenrich Group, a firm that performs
forensic analysis of schedule delays for both construction owners and contractors. TR at 865–66
(Miltonberger). Mr. Miltonberger holds both Bachelor of Science and Master of Science degrees
in Civil Engineering from the University of Illinois at Urbana Champaign, as well as a Master of
Business Administration degree from Northwestern University J. L. Kellogg Graduate School of
Management, in which he specialized in finance and real estate. Miltonberger Direct at 12. Mr.
Miltonberger is also a Licensed Professional Engineer in the State of Illinois, and a Cost
Professional certified by AACE International. Miltonberger Direct at 2. Mr. Miltonberger’s
studies included coursework in Critical Path Method scheduling, a method of analysis that he uses
to estimate the length of project delay. Miltonberger Direct at 1. Mr. Miltonberger has been
working in the field of forensic schedule analysis for twenty-three years. TR at 865
(Miltonberger). Therefore, the court has determined that Mr. Miltonberger qualifies as an expert
in “forensic schedule analysis and economic damages.” TR at 867; see also FRE 702.
64
Direct at 18–19. The 170-day delay in Window 2 is the subject of this case. Miltonberger
Direct at 3.
In the opinion of MW Builders’ expert, contemporaneous schedules show that the 170-day
delay is solely attributable to a lack of permanent power. Miltonberger Direct at 4. MW Builders’
March 2012 Schedule Update first identified the impact on subsequent critical path activity.
Miltonberger Direct at 14. For the Project to remain on schedule, permanent power was a
necessary prerequisite to multiple critical path activities, including the installation of climate and
temperature sensitive materials in the Training Building, equipment start-up, elevator installation
and testing, and fire pump start-up and system flush. Miltonberger Direct at 14. Subsequent
schedule changes showed the Critical Path delay, as it accumulated, because of the Army Corps’
failure to sign the Line Extension Agreement until July 23, 2012. Miltonberger Direct at 14–15.
During Window 2, 140 days of critical path delay occurred between the February 22, 2012
Schedule Update and July 23, 2012, the date the Line Extension Agreement was signed by the
Army Corps. Miltonberger Direct at 16. An additional 30 days of delay was attributed to electrical
metering activities at the Pump House.47 Miltonberger Direct at 16. But, the full Critical Path
Delay was not “realized” until the October 31, 2012 schedule narrative, wherein MW Builders
explained that the critical path was delayed by 169 days due to lack of permanent power.
Miltonberger Direct at 17.
To calculate MW Builders’ time-related costs, Mr. Miltonberger reviewed MW Builders’
cost-accounting system and identified the following time-related Jobsite Overhead Cost items:
• Construction Management Costs: MW Builders employees’ time that was charged to
the Project;
• Equipment Costs: daily costs for time-related equipment;
• Materials Costs: costs for time-related items such as job trailers, portable toilets, and
office supplies; and
• Support Craft Labor: craft labor that supported the overall job site, such as site cleanup.
Miltonberger Direct at 20.
These time-related job overhead costs differed during the course of the Project, including
“ramp-up” costs at the beginning of an activity and “ramp-down” costs at the end of an activity.
Miltonberger Direct at 20. Mr. Miltonberger accounted for these differences by calculating an
average daily cost only for Window 2. Miltonberger Direct at 20; see also Miltonberger Direct
Att. 5. Contemporaneous Project records also verify that, from March 1, 2012 to October 31, 2012
47
MW Builders is not requesting damages for the 30 days of delay related to the pump-
house activities. Pl. Reply at 45–46; see also Pl. Post Tr. Br. at 93 (arguing that the Army Corps
caused 140 days of delay).
65
MW Builders incurred $799,926.00 in time-related costs. Miltonberger Direct Att. 5. 48 Dividing
this amount by the 245 days that elapsed during this period yielded a “Jobsite Overhead Daily
Rate” of $3,262.00 per day. Miltonberger Direct at 5. Multiplying this daily amount by the 140
additional days of delay caused by the Army Corps’ conduct yielded a total of $456,680.00.
Miltonberger Direct at 21. This was referred to as “Extended Jobsite Overhead.” Miltonberger
Direct at 21.
b. Mr. Denny Lee. 49
MW Builders also proffered Mr. Denny Lee as an expert in “performing labor review and
inefficiency analysis and evaluation of damages and costs incurred in construction projects.” TR
at 819. Mr. Lee was retained to analyze Bergelectric’s uncompensated costs incurred due to the
late delivery of permanent power. Lee Direct at 1. Mr. Lee’s expert testimony, however, is
irrelevant, because the court has determined that Bergelectric waived any pass-through claims.
2. The Government’s Scheduling Expert, Mr. Stephen Weathers. 50
Mr. Weathers was retained to analyze MW Builders’ May 15, 2013 claim for 169 days of
compensable delay and respond to MW Builders’ expert reports. Weathers Rev. Direct at 8. In
performing his analysis, Mr. Weathers reviewed the September 10, 2010 Contract, the Army
Corps’ contract files, and documents obtained from MW Builders and NV Energy, including MW
Builders’ schedules and cost records. Weathers Rev. Direct at 8–9.
Mr. Weathers opined that, if the Government is responsible for delay in signing the Line
Extension Agreement, the delay was, at most, 71 days. Weathers Rev. Direct at 13. His conclusion
48
Although Mr. Miltonberger relied on MW Builders’ accounting records to ascertain these
costs, he also “tested” portions of his conclusions against MW Builders’ invoices and payroll
records to ensure that the accounting entries matched actual costs. TR at 920 (Miltonberger).
49
Mr. Lee is the Chief Financial Officer and Vice President of CTG International, LLC, an
independent consulting firm. Lee Direct at 1. He previously worked for other national and
international business and litigation consulting firms, and managed numerous industrial and
federal projects ranging from $3 to $25 million. Lee Direct at 1. In addition, he worked as a
construction claims consultant for the past 15 years and was involved in over $500 million of
construction claims. Lee Direct at 1.
50
Mr. Weathers is a founding shareholder and Project Manager at Capital Project
Management (“CPMI”), a construction consulting firm that “provides project scheduling and
dispute resolution consulting services.” Weathers Rev. Direct at 7–8. Mr. Weathers has over 30
years of experience in the construction industry and has testified numerous times, including in the
United States Court of Federal Claims. Weathers Rev. Direct at 8. Therefore, the court considered
Mr. Weathers an expert in “schedule delay analysis, construction damages, including loss of
productivity, construction contract administration and management.” TR at 1264; see also FRE
702.
66
was based on an analysis of MW Builders’ February 22, 2012 schedule, 51 that showed June 5,
2012 as the “late finish date” for activities dependent on permanent power. Weathers Rev. Direct
at 13, 33, 43; see also PX 325 (2/22/12 schedule). The February 22, 2012 schedule assumed the
“early finish date” was April 9, 2012. Weathers Rev. Direct at 33–34. But, that schedule allowed
for 39 days of “float,” i.e., the amount of time that can pass before an activity becomes “critical.”
Weathers Rev. Direct at 34. Therefore, in Mr. Weathers’ judgment, permanent power could be
supplied as late as June 5, 2012, and not affect the Project completion date. Weathers Rev. Direct
at 34. But, with a start date of June 5, 2012, 113 days passed before permanent power was supplied
on September 26, 2012. Weathers Rev. Direct at 43.
MW Builders’ February 22, 2012 schedule, however, set aside 28 days for NV Energy to
do its work after the Line Extension Agreement was executed. Weathers Rev. Direct at 43–45.
The Line Extension Agreement was signed on July 12, 2012, and MW Builders paid NV Energy’s
fee on July 18, 2012. Weathers Rev. Direct at 43 (citing DX 153, 160). Therefore, according to
MW Builders’ February 22, 2012 schedule, NV Energy should have finished its work by August
15, 2012, i.e., 28 days after MW Builders paid the fee on July 18, 2012. Weathers Rev. Direct at
44. 52 Therefore, the delay was 71 days, i.e., from June 5, 2012 to August 15, 2012. Weathers Rev.
Direct at 45.
51
This was the last schedule update filed by MW Builders prior to the Line Extension
Agreement dispute in March 2012.
52
MW Builders’ February 22, 2012 projection that NV Energy’s work should take 28
calendar days (20 work days) was consistent with a July 17, 2012 NV Energy email, wherein Ms.
Creveling stated it would take NV Energy about three weeks to complete its work. DX 200 at 9.
67
3. The Scheduling Experts’ Critiques.
Mr. Miltonberger criticized Mr. Weathers’ analysis as technically flawed, because he used
an “Impact As-Planned” methodology. Miltonberger Direct at 21–25. Mr. Miltonberger created
the following table to illustrate how Mr. Weathers’ analysis mirrored that approach:
Miltonberger Direct Tbl. 4.
The “Impacted As-Planned” method measures the delay of an activity along a project’s
planned critical path and assumes it accurately reflects the project’s actual critical path delay.
Miltonberger Direct at 23–4, 27–8. But, it does not account for the fact that a delay in one activity,
along the project’s planned critical path, can adversely affect another activity on the critical path,
resulting in additional delays not accounted for in the project’s originally planned critical path.
Miltonberger Direct at 23. For this reason, the “Impacted As-Planned” methodology has been
criticized by AACE International, the principal certification body for cost estimators and cost
engineers, as it does not account for changes in logic or in durations of activities. Miltonberger
Direct at 23 (citing AACE INTERNATIONAL RECOMMENDED PRACTICE NO. 29R-03–FORENSIC
SCHEDULE ANALYSIS at 76).
In addition to using a “technically flawed and unreliable” scheduling method, Mr.
Weathers also used the wrong schedule, because he relied on the February 22, 2012 Schedule
Update. Miltonberger Direct at 25. MW Builders did not realize that permanent power delay
affected the critical path until the March 28, 2012 Schedule Update. Miltonberger Direct at 25.
But, Mr. Weathers found that the permanent power delay began to accrue on May 16, 2012.
Miltonberger Direct at 27. If Mr. Weathers used the March 28, 2012 Schedule Update, however,
he would have realized that MW Builders subsequently updated its schedule logic, so that
providing permanent power on May 16, 2012 would result in 38 days of delay. Miltonberger
Direct at 27.
Mr. Weathers countered that he did not use an “Impacted As-Planned” methodology,
because he did not “import” any logic into the February 22, 2012 schedule. Weathers Rev. Direct
68
at 52–53. Instead, Mr. Weathers compared that schedule against the actual date on which
permanent power was supplied, i.e., September 26, 2012. Weathers Rev. Direct at 53. In addition,
although Mr. Miltonberger argues that the February 22, 2012 schedule did not have schedule logic
for permanent power activities, it is not the Army Corps’ fault that MW Builders did not amend
the schedule to include all the correct activities until March 28, 2012. Weathers Rev. Direct at 54.
To the extent that the March 28, 2012 schedule was the first to logically tie together permanent
power and conditioned air, these ties should have been included from the outset. Weathers Rev.
Direct at 54.
Like Mr. Miltonberger, Mr. Weathers calculated daily jobsite overhead costs for MW
Builders by totaling the amount of time-related costs incurred over a period of delay and then
dividing that amount by the number of days in the period. Weathers Rev. Direct at 69. Although
Mr. Miltonberger based his $3,262.00 a day rate on the 245 days that elapsed between the February
22, 2012 schedule and the signing of the Line Extension Agreement on July 23, 2012, Mr.
Weathers used a shorter period. Weathers Rev. Direct at 69.
Mr. Weathers also derived two different daily jobsite overhead cost rates, based on two
different sets of data:
• if delay is measured from May 3, 2012 (the day MW Builders argues was the last
day for permanent power to be supplied without critical path delay) to September
26, 2012 (the day permanent power was supplied), then the daily jobsite overhead
cost rate is $3,008.00 per day, based upon the $460,211.00 in costs incurred during
that period ($460,221.00/153 days= $3,008.00/day);
• if delay is measured from June 5, 2012 to August 15, 2012, then the daily jobsite
overhead rate is $2,787.00 per day. 53
Weathers Revised Direct at 70.
Mr. Weathers also analyzed other costs claimed by MW Builders. Weathers Rev. Direct
at 59. First, he looked at MW Builders’ $155,988.00 claim for materials and equipment costs,
based on the cost of renting generators from January 2012 to September 2012. Pl. Post Tr. Br. at
120; see also Weathers Rev. Direct at 71. But, the generator costs cited were incurred well before
April 9, 2012. Weathers Rev. Direct at 73. In addition, many of the costs MW Builders claimed
were duplicative of Bergelectric’s claim. Weathers Direct at 73. For example, during the period
from May 3, 2012 to October 19, 2012, MW Builders incurred $1,158.00 in generator and fuel
costs. Weathers Direct Tab F. But, that amount was offset by a $1,112.00 credit received for
temporary power, so the amount should be $46.00. Weathers Direct Tab F. After that amount is
adjusted for taxes and for the 71 day period between June 1, 2012 and August 15, 2012, MW
Builders’ materials and equipment costs were $20.89 or roughly $21.00. Weathers Direct Tab F.
53
Mr. Weathers used monthly cost data for this rate, so he divided the $256,401.00 in time-
related costs incurred from June 1, 2012 to August 31, 2012, by the 95 days that elapsed during
this period, for a total of $2,787.00 per day. Weathers Revised Direct at 70.
69
MW Builders also seeks to recover home office overhead at a rate of 10%. Pl. Post Tr. Br.
at 121. But, Mr. Weathers testified that a more reasonable overhead rate would be 3.8%, based
upon a total home office overhead of $12,227,059.00 divided by total company billings of
$321,939,423.00. Weathers Rev. Direct at 76 (citing JX 88 at 5). Mr. Weathers, however, opined
that the 3.8% should be marked up to 5%, since that was consistent with MW Builders’ bid sheets
that included a “Fee” of less than 4% and an “Operations Overhead” amount of 0.65%. Weathers
Rev. Direct at 77 (citing DX 1 at 3).
B. Plaintiff’s Damages Claim.
1. Plaintiff’s Claimed Amount. 54
MW Builders claims that the following costs were incurred as a result of the unreasonable
delay caused by the Army Corps’ breach of the September 10, 2010 Contract and violation of the
duty of good faith and fair dealing:
• Extended General Conditions Costs, at a rate of $3,262.00 per day for 140 days, or
$456,680.00;
• Material and Equipment Costs, in the amount of $155,988.00 for generator rentals;
• overhead of at a rate of 10%;
• profit at rate of 8%;
• a bond fee of 1.07%.
Pl. Post Tr. Br. at 122.
2. The Government’s Response.
The Government responds that, if MW Builders recovers extended general conditions
costs, it should recover them at the rate and for the delay found by Mr. Weathers, i.e., MW Builders
should recover costs at a rate of $2,787.00 a day for 71 days, or a total of $167,911.00. Gov’t Post
Tr. Br. at 133. Specifically, MW Builders is not entitled to recover $155,988.00 in generator costs,
because the September 10, 2010 Contract assigned responsibility for temporary power to MW
Builders, and MW Builders subsequently subcontracted that responsibility to Bergelectric. Gov’t
Post Tr. Br. at 134 (citing TR at 693 (Campbell) (conceding that MW Builders and Bergelectric
were responsible for temporary power)). Moreover, the period for which MW Builders claims
generator costs is “grossly excessive,” because it ran from January 2012 to September 2012, but
MW Builders’ contemporaneous schedules showed that permanent power was not to be installed
until April 2012 at the earliest. Gov’t Post Tr. Br. at 134.
54
MW Builders revised the total claimed damages on several occasions. In the December
27, 2012 Certified Claim, MW Builders claimed $2,139,215.00 in damages. JX 88 at 1. But, in
the subsequent May 15, 2013 Revised Certified Claim, MW Builders claimed $2,562,049.00 in
damages. JX 89 at 2. Subsequently, that claim was revised downwards and, in the August 19,
2016 Proposed Findings Of Fact And Conclusions Of Law, MW Builders claimed $1,362,206.65
in damages. Pl. Post Tr. Br. at 122.
70
With respect to overhead, MW Builders should recover overhead at a rate of 3.8%, as
calculated by Mr. Weathers. Gov’t Post Tr. Br. at 135 (citing Weathers Revised Direct at 76).
And, MW Builders also should not recover profit, because FAR 52.242-14(b) expressly disallows
profit, when calculating amounts owed due to a Government-caused delay. Gov’t Post Tr. Br. at
135; see also 48 C.F.R. § 52.241-14(b). 55
3. The Court’s Determination.
a. Regarding The Amount Of Delay.
The experts in this case used two different methods to calculate the delay caused by the
Army Corps. Mr. Miltonberger calculated 140 days of delay, by conducting a “Windows”
analysis, analyzing MW Builders’ contemporaneous schedules, and dividing the Project into three
separate “windows” or delay periods. Miltonberger Direct at 9. In his analysis of “Window 2,”
Mr. Miltonberger tracked the effect of the permanent power delay, as it was “realized” by MW
Builders’ schedulers, up until July 12, 2012, when the Line Extension Agreement was signed by
55
FAR 52.242-14, as incorporated in the September 10, 2010 Contract, provides:
(a) The Contracting Officer may order the Contractor, in writing, to suspend, delay,
or interrupt all or any part of the work of this contract for the period of time that the
Contracting Officer determines appropriate for the convenience of the Government.
(b) If the performance of all or any part of the work is, for an unreasonable period
of time, suspended, delayed, or interrupted (1) by an act of the Contracting Officer
in the administration of this contract, or (2) by the Contracting Officer's failure to
act within the time specified in this contract (or within a reasonable time if not
specified), an adjustment shall be made for any increase in the cost of performance
of this contract (excluding profit) necessarily caused by the unreasonable
suspension, delay, or interruption, and the contract modified in writing accordingly.
However, no adjustment shall be made under this clause for any suspension, delay,
or interruption to the extent that performance would have been so suspended,
delayed, or interrupted by any other cause, including the fault or negligence of the
Contractor, or for which an equitable adjustment is provided for or excluded under
any other term or condition of this contract.
(c) A claim under this clause shall not be allowed (1) for any costs incurred more
than 20 days before the Contractor shall have notified the Contracting Officer in
writing of the act or failure to act involved (but this requirement shall not apply as
to a claim resulting from a suspension order), and (2) unless the claim, in an amount
stated, is asserted in writing as soon as practicable after the termination of the
suspension, delay, or interruption, but not later than the date of final payment under
the contract.
48 C.F.R. § 52.242-14; see also DX 16A at 169 (9/10/10 Contract incorporating Suspension of
Work clause).
71
the Army Corps. Miltonberger Direct at 16. During that period, as more days accumulated without
permanent power, MW Builders’ schedulers pushed the completion date outwards with each
schedule update. Therefore, although MW Builders’ schedules at the beginning of Window 2
estimated a substantial completion date of September 19, 2012 (PX 337), the June 29, 2012
schedule estimated a substantial completion date of February 6, 2013, i.e., 140 days later.
Miltonberger Direct at 16 (citing PX 329, 336).
In contrast, Mr. Weathers compared one schedule—MW Builders’ February 22, 2012
Schedule—against the actual Project dates. Weathers Direct at 43. MW Builders’ February 22,
2012 Schedule set a “late finish date” for permanent power as June 5, 2012, and provided that NV
Energy’s post-Line Extension Agreement work would take 20 work days or 28 calendar days. DX
75. But, the Line Extension Agreement was not signed until July 12, 2012, and NV Energy’s fee
was not paid until July 18, 2012. Weathers Direct at 43. Permanent power, however, was not
provided until September 26, 2012, or 113 days after June 5, 2012. Weathers Direct at 43.
Therefore, based on the February 22, 2012 Schedule, NV Energy should have provided power by
August 15, 2012, i.e., 28 calendar days after NV Energy’s fee was paid. Weathers Direct at 43.
Therefore, Mr. Weathers believed the delay should begin on June 5, 2012 and end on August 15,
2012, or 71 days. Weathers Direct at 43.
Mr. Weathers’ main complaint with Mr. Miltonberger’s analysis was that it incorporates
several logic changes that MW Builders made to schedules during the course of the Line Extension
Agreement delay. First, in MW Builders’ March 28, 2012 Schedule Update, MW Builders
adjusted the schedule to add activities to “track and estimate” potential delay related to the
obtaining of permanent power. PX 337. These three activities “represent[ed] the time required,
per building, to startup the HVAC system.” PX 377 at 2. Then they were logically linked to
temperature sensitive activities, such as the installation of VCT, that could not be performed inside
buildings until air conditioning was available. PX 377 at 2. This logic change added an additional
10 days to MW Builders’ projections. PX 377 at 2. Second, in the April 26, 2012 Schedule
Update, MW Builders revised its estimate of how long NV Energy needed to perform its work
related to the provision of the permanent power. PX 338 at 2. Previously, MW Builders assumed
this work would take 20 work days, or 28 calendar days. PX 338 at 2. But, on April 26, 2012,
MW Builders projected that NV Energy’s work would take 30 work days, or 42 calendar days.
PX 338 at 2. This change in logic resulted in 14 calendar days being added for activities that may
occur after the Line Extension Agreement was signed.
The September 10, 2010 Contract required MW Builders to submit schedule updates on a
monthly basis to the Army Corps for approval. DX 17 at 3; see also Jt. Stip. ¶ 17. Several of these
schedule updates were reviewed by Management Solutions, the Army Corps’ scheduling
consultant. PX 348. After reviewing the April 26, 2012 Schedule Update, Management Solutions
informed the Army Corps that MW Builders made changes to the scheduling logic. PX 348. But,
the Army Corps approved those changes in logic and approved MW Builders’ schedule. PX 348;
see also TR at 1063–64 (Musgrave).
During trial, Mr. Weathers testified that he did not disagree with the “substance” of these
logic changes and updates to MW Builders’ schedule. TR at 1288 (Weathers). But, he objected
to their timing, because MW Builders should have made those changes earlier. TR 1289
(Weathers). In addition, the fact that MW Builders previously underestimated how long NV
72
Energy would take to do its work (i.e., 30 work days instead of 20 work days) cannot be attributable
to the Government; it is either MW Builders’ fault for not communicating with NV Energy or a
third party delay. TR 1293 (Weathers).
In the court’s judgment, the logic changes included in the March 28, 2012 schedule were
necessary to determine the critical path delay, since the March 28, 2012 schedule was the schedule
to logically tie temperature sensitive construction activities to the provision of permanent power
and the activation of air-conditioning in the buildings. In addition, Mr. Miltonberger’s “Windows”
method appeared to be the more reliable method for determining critical path delay, because it
reflected the contemporaneous changes to the schedule that occurred as MW Builders continued
to operate without permanent power. This is important, because it reflects that MW Builders began
to run out of construction activities that did not require permanent power, during the months
between when the Line Extension Agreement issue first was raised on March 13, 2012, and July
12, 2012, when the Army Corps fulfilled its contractual obligation to sign the Line Extension
Agreement. But, the court also agrees with Mr. Weathers’ analysis, in so far as the Government
should not be blamed for MW Builders failure to: (a) logically tie certain activities together; and
(b) properly estimate the amount of time NV Energy needed to do its work. Weathers Direct at
54–55. Therefore, the court has decided to deduct 24 days from Mr. Miltonberger’s calculated
delay.
For these reasons, the court has determined that the Army Corps’ was responsible for 116
days of delay.
b. Regarding The Daily Jobsite Overhead Rate.
Mr. Miltonberger and Mr. Weathers calculated the daily jobsite overhead rate in the same
manner. Miltonberger Direct Att. 5; Weathers Direct 15. First, they both identified the period
during which they determined the delay occurred. Miltonberger Direct Att. 5. Second, they added
together MW Builders’ time related costs for each of those months to obtain a total costs incurred
by the delay. Miltonberger Direct Att. 5. Third, they divided that amount by the number of days
that elapsed during that period. Miltonberger Direct at 5.
Mr. Miltonberger and Mr. Weathers, however, differed in the periods they selected. Mr.
Miltonberger selected a period from March 1, 2012 to October 31, 2012 (i.e., what he determined
to be “Window 2”), and calculated a daily rate of $3,262.00. 56 Miltonberger Direct Att. 5. Mr.
Weathers selected the period from May 1, 2012 to September 30, 2012, and calculated a daily rate
of $3,008.00. 57 In the court’s judgment, Mr. Weathers’ daily jobsite overhead rate more closely
matches the period during which MW Builders was affected by the delay, i.e., from May 4, 2012,
56
MW Builders incurred $799,296.00 in time related costs during this period; dividing that
amount by the 245 days between March 1, 2012 and October 31, 2012 yields a daily rate of
$3,262.00. Miltonberger Direct Att. 5.
57
MW Builders incurred $460,220.75 in time related costs during this period; dividing that
amount by the 153 days between May 1, 2012 and September 30, 2012 yields a daily rate of
$3,007.98 or approximately $3,008.00. Weathers Direct at 63.
73
the day on which MW Builders’ March 28, 2012 schedule required permanent power, until
September 26, 2012, when permanent power was made available at the site.
For these reasons, the court has determined that MW Builders’ extended general
conditions costs should be calculated at a daily jobsite overhead rate of $3,008.00 a day.
c. Regarding The Materials And Equipment Costs.
MW Builders claim includes $155,988.00 in Materials and Equipment costs to rent the
generators that provided temporary power. Pl. Post Tr. Br. at 122. Included in that amount are
generator costs for periods prior to the contemporaneous schedules that set the delivery date for
permanent power, i.e., $87,910.00 in generator costs incurred from January 2012 to June 2012. Pl.
Post Tr. Br. at 122; see also PX 682 at 2. But, the earliest date identified for NV Energy’s provision
of permanent power in any of MW Builders’ schedules was April 9, 2012, as set forward in the
February 22, 2012 Schedule. DX 74. MW Builders, however, did not apportion generator costs
between when it agreed to rely only on temporary power and when it expected to purchase power
from NV Energy. Although MW Builders likely incurred additional generator costs due to the
Line Extension Delay, MW Builders provided no means for the court to apportion those costs. 58
For these reasons, the court has determined that MW Builders did not establish entitlement
to and may not recover $155,988.00 in Materials and Equipment costs.
d. Regarding Home Office Overhead.
MW Builders’ claim includes home office overhead at a negotiated rate of 10%, previously
accepted by and reflected in the Army Corps contract modifications. PX 683 at 823–25 (9/27/12
Contract Modification, wherein the Army Corps agreed to increase the contract price by
$39,321.00, including a home office overhead at a rate of 10%). Mr. Weathers, however, used an
alternative home office overhead rate of 5%. Weathers Direct at 76. The court, however, sees no
reason why the home office overhead rate previously negotiated and agreed upon by the parties is
not reasonable.
For these reasons, the court has determined that MW Builders may recover home office
overhead at a rate of 10%.
e. Regarding Profit.
MW Builders claim includes an 8% profit of Extended General Conditions and Material
and Equipment costs. Pl. Post Tr. Br. at 122. The September 10, 2010 Contract’s compensable
delay clause, incorporated pursuant to FAR 52.242-14, however, expressly disallows profit. Gov’t
Post Tr. Br. at 135. But, MW Builders seeks recovery for a breach of contract and a violation of
the duty of good faith and fair dealing, not for a compensable delay. The United States Court of
Federal Claims has determined that a contractor may recover profit, when it demonstrates that it
was unreasonably delayed by the Government’s violation of the duty of good faith and fair dealing.
See Fireman’s Fund Ins. Co. v. United States, 92 Fed. Cl. 598, 706 (Fed. Cl. 2010) (including
58
Mr. Miltonberger did not offer an expert opinion about the generator costs.
74
profit when calculating damages for an unreasonable delay caused by a breach of the duty of good
faith and fair dealing).
For these reasons, the court has determined that MW Builders may recover profit at a rate
of 8%.
f. Regarding The Bond Fee.
MW Builders claims a bond fee of 1.07%, and this amount is not disputed by the
Government. Pl. Post Tr. Br. at 122.
For these reasons, the court has determined that MW Builders may recover for its bond fee
at a rate of 1.07%.
g. Calculation Of Damages.
The court has provided the following table summarizing the costs MW Builders incurred
as a result of unreasonably delay caused by the Army Corps’ breach of contract and violation of
the duty of good faith and fair dealing:
A. Extended General Conditions Costs (“EGCC”)
Days 116
Daily Rate $ 3,008.00
Total $ 348,928.00
B. Home Office Overhead
EGCC $ 348,928.00
Home Office Overhead Rate 10%
Home Office Overhead Incurred $ 34,892.80
EGCC + Home Office Overhead $ 383,820.80
C. Profit
EGCC + Home Office Overhead $ 383,820.80
Profit Rate 8%
Profit Amount $ 30,705.66
EGCC + Home Office Overhead with Profit $ 414,526.46
D. Bond Fee
EGCC + Home Office Overhead with Profit $ 414,526.46
Bond Fee Rate 1.07%
Bond Amount $ 4,435.43
Total $ 418,961.90
Total Damages $ 418,961.90
V. CONCLUSION.
For these reasons, the court has determined that the Army Corps breached the September
10, 2010 Contract and violated the duty of good faith and fair dealing, as alleged in Counts I and
II of the December 27, 2013 Complaint. The court also has determined that the resulting delay
75
caused by the Army Corps was a compensable delay of 116 days. Therefore, MW Builders is
entitled to recover $418,961.90 as damages, together with interest calculated from December 27,
2012, to the date of payment, pursuant to 41 U.S.C. § 7109.
In addition, the court has determined that Bergelectric waived all claims against MW
Builders and associated pass-through claims against the Government. The court also has
determined that MW Builders did not defraud the Government. Accordingly, the Counterclaims
I–III alleged in the February 17, 2016 Amended Answer are dismissed.
The Clerk of Court is directed to enter judgment in accordance with this Post-Trial
Memorandum Opinion And Final Order.
IT IS SO ORDERED.
s/ Susan G. Braden
SUSAN G. BRADEN
Chief Judge
76
Court Attachment A
Witnesses Called by MW Builders
(In order of appearance)
Mr. Hans Probst was a Project Manager for the US Army Corps of Engineers (the “Army Corps”)
in connection with the Army Reserve Center (“ARC”) Project. ECF No. 62 at 63. He was the
branch chief of the Instruction Division of the Louisville District over the Reserve Program in the
Army Corps from April 2002 to present. TR at 15. Direct Examination 13–145; Cross
Examination 145–92; Redirect Examination 192–98 (called by Plaintiff).
Mr. Mike Marti was the on-site project manager for MW Builders in connection with the
construction of the Las Vegas ARC Project from the beginning of the Project through
approximately November 2011. ECF No. 62 at 56. Direct Examination 200–18; Cross
Examination 219–322; Redirect Examination 322–24 (called by Plaintiff).
Mr. Gregg Herriott was the Operations Manager for MW Builders in connection with the
construction of the Las Vegas ARC Project. ECF No. 62 at 57. He was an operations manager for
MW Builders from 2005 to 2013. TR at 326. Direct Examination 326–36; Cross Examination
336–67; Redirect Examination 367–68 (called by Plaintiff).
Mr. Robert Farrell Caskie, III was an Administrative Contracting Officer for the ARC Project
and had various administrative and management duties on behalf of the Government related to the
Project. ECF No. 62 at 64. He performed his duties out of Army Corps’ Las Vegas office. ECF
No. 62 at 64. Direct Examination 369–98; Cross Examination 398–420; Redirect Examination
420–21 (called by Plaintiff).
Mr. Bret Matson was a Project Engineer and Project Manager for MW Builders from January
2011 until May 2012, in connection with the construction of the Las Vegas ARC Project. ECF
No. 62 at 56. Direct Examination 423–30; Cross Examination 430–61 (called by Plaintiff).
Mr. Richard Rial was a consultant engaged by MW Builders to assist with the process required
by NV Energy to bring temporary and permanent power to the ARC Project site. ECF No. 62 at
63. Direct Examination 462–73; Cross Examination 474–504 (called by Plaintiff).
Mr. Eric Stone worked as a Scheduling Engineer for MW Builders during the course of the ARC
Project. ECF No. 62 at 54. Direct Examination 506–23; Cross Examination 524–68 (called by
Plaintiff).
Ms. Rebecca Risse was an Assistant In-House counsel for NV Energy during 2012 and was a
participant in the Line Extension Agreement contract negotiations between NV Energy and the
Government in 2012. ECF No. 62 at 62. Direct Examination 578–600; Cross Examination 600–
33; Redirect Examination 633–35 (called by Plaintiff).
Mr. Justin Knippel is the Regional Manager for Bergelectric and occupied that position during
Bergelectric’s work as a subcontractor on the ARC Project. ECF No. 62 at 58. Direct Examination
750–77; Cross Examination 778–99 (called by Plaintiff).
Mr. Nathan Sawyer was a Project Manager for Bergelectric and occupied that position during
portions of Bergelectric’s work as a subcontractor on the ARC Project. ECF No. 62 at 59. Direct
Examination 810–13; Cross Examination 813–14 (called by Plaintiff).
Mr. Denny Lee worked for work for C2G International in Aliso Viejo, California where he did
cost and scheduling consulting. TR at 817. He is an expert on performing labor review and
inefficiency analysis and evaluation of damages and costs incurred in construction projects. TR
at 819. Cross Examination 815–17; Voir Dire Examination 817–19; Cross Examination
(Continued) 819–41 (called by Plaintiff).
Mr. Kevin Finley was an Associate Counsel for Army Corps and was involved in negotiating the
Line Extension Agreement between Army Corps and NV Energy. ECF No. 62 at 66. Direct
Examination 1065–1105; Cross Examination 1105–16 (called by Plaintiff).
2
Witnesses Called by the Government
(In order of appearance)
Mr. Jason Evelyn was the President of MW Builders in connection with the construction of the
Las Vegas ARC Project. ECF No. 62 at 55. He has been President since November, 2011 and has
been with the company for 19 years. TR at 724–25. Direct Examination 724–28; Cross
Examination 728–46 (called by Plaintiff). Recross Examination 1259–61 (called by Government).
Mr. Jonathan Miller was a Project Manager for Mason & Hanger who was involved in the Las
Vegas ARC Project during the periods at issue in this case. ECF No. 76-1 at 4. Direct
Examination 969–93; Cross Examination 993–98 (called by the Government).
Ms. Katherine Creveling was a supervisor in the New Development Center of NV Energy. ECF
No. 76-1 at 4. She was involved in the Las Vegas ARC Project in her capacity as an NV Energy
employee. ECF No. 76-1 at 4. She has worked for NV Energy for over 21 years. TR at 1000.
Direct Examination 1000–33; Cross Examination 1033–35 (called by the Government).
Mr. Ronald Musgrave was a Contracting Officer’s Representative with the Army Corps who was
involved in the Las Vegas ARC Project during periods at issue in this case. ECF No. 76-1 at 3.
Mr. Musgrave is now retired. ECF No. 76-1 at 3. Direct Examination 1036–62; Cross
Examination 1062–64; Redirect Examination 1064 (called by the Government).
Mr. Johnny Ringstaff was an Administrative Contracting Officer with the Army Corps involved
in the Las Vegas ARC Project during periods at issue in this case. ECF No. 76-1 at 1–2. Direct
Examination 1117–38; Cross Examination 1138–42 (called by the Government).
Ms. Tara O’Leary was a Design Project Manager with the Army Corps who was involved in the
Las Vegas ARC Project during periods at issue in this case. ECF No. 76-1 at 3. She had been in
her position for roughly 10 years. TR at 1144. Direct Examination 1143–55 (called by the
Government).
Mr. Stephen Weathers was a founding shareholder of CPMI, a construction consulting firm that
provides project scheduling and dispute resolution consulting services to owners, contractors,
subcontractors, architects, engineers and sureties. ECF No. 96 at 7–8. He has been qualified as
an expert in construction scheduling, delay analysis, construction contract management and
administration and construction damages. ECF No. 96 at 8. Other 720–21, 748; Direct
Examination 1264–84; Cross Examination 1284–1304; Redirect Examination 1304–12; Recross
Examination 1312–13; (called by the Government). Other 1320–26.
3
Witnesses Called by Both MW Builders and the Government
(In order of appearance)
Mr. Daniel “Sparky” Campbell was a Project Manager and Operations Manager for MW
Builders in connection with the construction of the Las Vegas ARC Project. ECF No. 62 at 54.
He worked for MW Builders from 1988 to the present in various positions. TR at 636–37. Direct
Examination 636–74; Cross Examination 674–718; Redirect Examination 719–23; Direct
Examination (Continued) 852–62; Cross Examination (Continued) 862–63 (called by Plaintiff).
Cross Examination (continued) 1164–1254; Redirect Examination 1254–57; Recross Examination
1257–58 (called by the Government).
Mr. Neil Miltonberger was Vice President of the Kenrich Group after working for them for eight
years. TR at 865. He is a specialist in forensic schedule analysis and economic damages. TR at
865. Direct Examination 864–67; Voir Dire Examination 868; Cross Examination 869–958;
Redirect Examination 958–59 (called by Plaintiff). Direct Examination (continued) 1314–20
(called by the Government). Other 1326–27.
4