Old Veteran Construction, Inc. v. United States

In the United States Court of Federal Claims
No. 14-807C
Filed: May 19, 2015
* * * * * * * * * * * * * * * * ** *
OLD VETERAN CONSTRUCTION, *
INC., *
*
Plaintiff, * Summary Judgment; Type I Differing
* Site Conditions.
v.
*
UNITED STATES, *
*
Defendant. *
* * * * * * * * * * * * * * * * ** *
Richard P. Reichstein, Reichstein Law, Chicago, IL, for plaintiff.
Lauren Springer Moore, Trial Attorney, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washington, D.C., for defendant. With her
were Robert E. Kirschman, Jr., Director, Commercial Litigation Branch and Benjamin
C. Mizer, Principal Deputy Assistant Attorney General, Civil Division.
OPINION
Plaintiff, Old Veteran Construction, Inc. (OVC), filed a short complaint in this court
on September 3, 2014, alleging it is entitled to damages in the amount of $321,561.00
because, contrary to its expectations, it was required “to dig out and haul off the existing
lean clay and replace it with gravel from an outside source” in order to construct the Army
Reserve Center that it had been contracted to build. Plaintiff claims the solicitation made
clear that the contractor should be able “to use the on-site lean clay as load bearing
support for the building,” but in fact, it was not able to do so. Plaintiff argues that it was
entitled to rely on the “positive statements in the specifications” and the drawings provided
to guide bidders, “regardless of contractual provisions requiring the contractor to make
investigations.” Plaintiff contends, therefore, that it is entitled to recover the costs it
incurred when the on-site lean clay proved unsuitable to use as load bearing support for
the building. Plaintiff submitted a certified claim to the contracting officer, which was
denied in full, and the contracting officer declined to pay plaintiff any increase in the
contract price. Thereafter, plaintiff filed suit in this court, to which defendant has
responded by filing a motion for summary judgment.
FINDINGS OF FACT
The United States Army Corps of Engineers – Louisville (Army Corps) issued
Solicitation No. W912QR-11-R-0029 on April 7, 2011, seeking the construction of an
Army Reserve Center in Quincy, Illinois. The solicitation included section 00 31 32, which
contained a “Report of Geotechnical Investigation,” dated December 20, 2010, which
contained information regarding “Engineer Fill.” Initially, contractors’ proposals were due
on or before May 10, 2011 and the Government was to have 120 days following the due
date to accept a bidder’s offer.1 The Army Corps issued Amendment 002 to the
solicitation, which changed the due date for proposals to May 19, 2011. OVC submitted
a proposal on the due date and subsequently during discussions, submitted two revised
proposals in response to letters OVC received from the contracting officer. On June 27,
2011, the contracting officer sent OVC a letter requesting a “final proposal revision in
accordance with Federal Acquisition Regulation (FAR) 15.307” by July 1, 2011. OVC
submitted its final proposal on June 30, 2011.
On September 20, 2011, the agency awarded the contract to OVC for
$13,899,681.00, and on October 7, 2011, the Army Corps sent OVC a notice to proceed.
OVC submitted a preliminary schedule for the project to the contracting officer on or about
December 30, 2011, and then a revised schedule on or about January 13, 2012. OVC’s
project schedule estimated that excavation work would occur from December 24, 2011
through January 22, 2012. OVC actually began the excavation and fill work on January
13, 2012.
On January 23, 2012, OVC submitted a Request for Information to the contracting
officer, which stated:
In accordance with the above specification section, OVC preformed [sic] a
proof roll test on the building pad of the Training Center last Wednesday 1-
18-12. Due [to] the time of year we found the clay to be saturated with water
and the ground to be frozen. Given the current moisture content of the soil
it is not suitable for placement under the building, resulting in a failed proof
roll. As a result of the [sic] this failure our Geotechnical consultant has
recommended that the entire building pad be built up with 3” (RR1B or
RR2B) stone in lieu of the onsite clay. Given the time from bid to award of
this project OVC could not have anticipated the required installation of the
3” stone given that the Geotechnical specification provided by G2
Consulting group only recommends the use of engineered structural fill if
construction was to be completed during the winter months. Attached is a
recommendation from Geotechnics Testing supporting the installation of the
1 In a June 16, 2011 letter from a contracting officer to OVC, the contracting officer
reduced the amount of time in which the government committed to accepting an offer
from 120 days after the proposal was due to 90 days after the proposal was due.
2
3” stone for your review and approval.[2] If this alternate method is
acceptable please advise if these additional costs will be considered a
change order to the base contract.
Larry Wernle, the contracting officer’s representative, replied to plaintiff’s Request for
Information that either of the substitutions OVC proposed were acceptable, “but only if
performed at no additional cost to the Government.”
On February 14, 2012, OVC submitted a Request for Equitable Adjustment, based
on the “fact OVC bid the project anticipating favorable weather conditions, given that the
award date was never identified.” Plaintiff referenced the initial bid date, May 19, 2011,
and suggested that since the bids were submitted in May 2011, OVC was hopeful “that
an award would be sent out within the month to come and the earthwork would take place
during the recommended summer months as stated in the Geotechnical report.” The
contract, however, was awarded on September 20, 2011, and, according to plaintiff, OVC
was “taxed with the most unfavorable time to begin excavation,” hindering its ability to
use “the onsite lean clay as structural fill.” OVC also noted that OVC “had no option but
to begin the work during the winter months. Although, it is clearly stated by G2 Consulting
Group[3] in their report that the earthwork could not be completed during the winter months
without substantial costs impacts.” OVC reasoned, “[s]ince, only a recommendation was
given to import granular structural fill OVC strongly believes that if we had had [sic]
acknowledged this recommendation to import granular fill in our original bid submission,
we would not have been competitive with other bidding General Contractors.”
In a letter, dated March 30, 2012, Donald Peterson, identified as a government
resident engineer and an administrative contracting officer, responded to OVC’s February
14, 2012 request, explaining that OVC’s Request for Equitable Adjustment has “no
merit.” (emphasis in original). Mr. Peterson stated that the placement of the stone was
“within the scope of work required by the As-Awarded Contract.” The administrative
contracting officer also noted that while plaintiff referenced the May 2011 bid date, it failed
to acknowledge that the final proposal revision occurred on July 1, 2011, and at that time,
the government was entitled to a specified number of additional days to consider and
2 Although plaintiff stated in its Request for Information that a recommendation from
plaintiff’s geotechnical consultant, Geotechnics Soil and Material Testing (Geotechnics),
was attached, this recommendation does not appear to have been provided to the court.
Only two letters authored by OVC’s geotechnical consultant are attached to plaintiff’s
complaint. Exhibit 10 to the complaint is an email from Ronald Craven of Geotechnics to
S.K. Lee at OVC, dated March 29, 2012. Exhibit 12 to the complaint is a letter, also from
Ronald Craven of Geotechnics, to Daniel Gil at OVC, dated December 7, 2012. Because
both of these documents post-date the Request for Information, it seems improbable that
either is the report to which plaintiff referred in its Request for Information.
3 G2 Consulting Group is the company that prepared the Report of Geotechnical
Investigation which was included with the solicitation.
3
accept the proposal, and that the contract was awarded within the “Bid Acceptance
Period.”4
On August 30, 2013, OVC submitted a certified claim titled “Proposal for Equitable
Adjustment of Contract No. W912QR-11-C-0049,” and included certification language,
seeking payment of $321,561.00. On March 26, 2014, the contracting officer, Gloria
Ritter, issued a final decision denying OVC’s claim in its entirety.5 In her final decision,
the contracting officer stated:
You made an error in your calculation as to when you would be able to start
working on the Quincy Army Reserve Center. You unreasonably assumed
that if awarded the Contract you would start work on ARC during the
summer months of 2011. In reality, you started work on the project in
January of 2012. Because you started in the winter, you claim you are
entitled to additional costs due to alleged government delay. However, no
such delay occurred. You were on notice by the solicitation, which you
signed, that a winter start date was very likely. You should have calculated
your proposal to include the likelihood of a winter start date instead of
assuming a definite summer start date.
The contracting officer also indicated that OVC was “clearly on notice” that excavation
work likely would begin during the winter months and that “your [OVC] assumption that
you would be able to start in the summer months was entirely unreasonable.” In addition,
despite the changes in proposal submission times and the 90 day acceptance period, the
contracting officer stated, “you had several chances to revise your proposal but failed to
do so,” and “submitted the same price you [OVC] had submitted previously.” The
contracting officer also noted that under the terms of the solicitation, OVC had the right
to withdraw its proposal at “any time before it was accepted,” and that it was clear to all
that additional time before work could begin would be required for bond approval. The
contracting officer continued, “[s]ince you calculated your proposal based on your
4 The letter from Mr. Peterson to OVC states that the contract was awarded “within the
120 day Bid Acceptance Period.” As noted above, in a letter from a contracting officer to
OVC dated June 16, 2011, the Bid Acceptance Period was reduced from 120 days to 90
days, and the contract was awarded timely within 90 days of the deadline for contractors’
final submissions.
5 Although OVC presented three grounds for relief in its certified claim to the contracting
officer, only the one basis for relief addressed in this opinion is included in plaintiff’s
complaint filed in this court. Plaintiff’s complaint in this court did not include claims for
charges based on an alleged requirement to order contract fixtures in advance of the
government exercising an option and alleged charges arising out of Change Order
A00003 issued during contract performance, which plaintiff claimed resulted in additional
indirect and direct costs. Nonetheless, plaintiff is requesting the same dollar amount in
this court as it requested from the contracting officer in its certified claim for all three
claims.
4
unreasonable assumption, you must bear the costs associated with that assumption.
When a contractor places a proposal on a government project, it assumes the basic
obligation to accurately propose according to its ability.”
In evaluating whether OVC had proven it was entitled to relief under a differing site
conditions claim, the contracting officer stated, “[a] reasonably prudent contractor would
not have interpreted the contract documents as promising a summer start date.” The
contracting officer determined that “the site conditions you encountered were exactly the
same as the geological [geotechnical] report claimed they would be. The geological report
clearly informed you about the soil conditions of the site during both winter and summer
months.” The contracting officer further stated:
The report gave you sufficient information concerning the soil conditions in
the winter and the summer. In addition, there is nothing in this report that
would lead a reasonably prudent contractor to conclude that summer
conditions would necessarily prevail at the time of excavation. Therefore,
the winter soil conditions were entirely foreseeable on your part. Because
the soil conditions were foreseeable, a reasonably prudent contractor would
have prepared for a potential winter excavation.
You failed to act as a reasonably prudent contractor in interpreting the
contract documents. You also failed to prove that the actual subsurface
conditions you encountered were reasonably unforeseeable. Therefore,
you are not entitled to relief under the differing site conditions clause of the
contract.
Finally, the contracting officer indicated, “[t]he Government had no reason to doubt that
you had competently calculated your proposal for this contract. Your proposal received
adequate ratings, and your proposal price was similar to the prices produced by the other
bidders.” Following receipt of the contracting officer’s final decision, plaintiff timely filed a
complaint in this court on September 3, 2014, and defendant filed a motion for summary
judgment, which plaintiff opposes.
DISCUSSION
Rule 56 of the Rules of the United States Court of Federal Claims (RCFC) (2014)
is similar to Rule 56 of the Federal Rules of Civil Procedure in language and effect. Both
rules provide that “[t]he court shall grant summary judgment if the movant shows that
there is no genuine dispute as to any material fact and the movant is entitled to judgment
as a matter of law.” RCFC 56(a); Fed. R. Civ. P. 56(a) (2015); see also Alabama v. North
Carolina, 560 U.S. 330, 344 (2010); Hunt v. Cromartie, 526 U.S. 541, 549 (1999);
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986); Adickes v. S. H. Kress &
Co., 398 U.S. 144, 157 (1970); Biery v. United States, 753 F.3d 1279, 1286 (Fed. Cir.),
reh’g and reh’g en banc denied (Fed. Cir. 2014); Ladd v. United States, 713 F.3d 648,
651 (Fed. Cir. 2013); Minkin v. Gibbons, P.C., 680 F.3d 1341, 1349 (Fed. Cir. 2012);
Noah Sys., Inc. v. Intuit Inc., 675 F.3d 1302, 1309–10 (Fed. Cir. 2012); Advanced Fiber
Techs. (AFT) Trust v. J & L Fiber Servs., Inc., 674 F.3d 1365, 1372 (Fed. Cir.), reh’g and
5
reh’g en banc denied (Fed. Cir. 2012); Fujitsu Ltd. v. Netgear Inc., 620 F.3d 1321, 1325
(Fed. Cir.), reh’g denied (Fed. Cir. 2010); Consol. Coal Co. v. United States, 615 F.3d
1378, 1380 (Fed. Cir.), reh’g and reh’g en banc denied (Fed. Cir. 2010), cert. denied, 131
S. Ct. 2990 (2011); 1st Home Liquidating Trust v. United States, 581 F.3d 1350, 1355
(Fed. Cir. 2009); Arko Exec. Servs., Inc. v. United States, 553 F.3d 1375, 1378 (Fed. Cir.
2009); Casitas Mun. Water Dist. v. United States, 543 F.3d 1276, 1283 (Fed. Cir. 2008),
reh’g and reh’g en banc denied, 556 F.3d 1329 (Fed. Cir. 2009); Moden v. United States,
404 F.3d 1335, 1342 (Fed. Cir.), reh’g and reh’g en banc denied (Fed. Cir. 2005); Am.
Pelagic Fishing Co., L.P. v. United States, 379 F.3d 1363, 1370–71 (Fed. Cir.), reh’g en
banc denied (Fed. Cir. 2004), cert. denied, 545 U.S. 1139 (2005); Mata v. United States,
114 Fed. Cl. 736, 744 (2014); Leggitte v. United States, 104 Fed. Cl. 315, 317 (2012);
Arranaga v. United States, 103 Fed. Cl. 465, 467–68 (2012); Cohen v. United States, 100
Fed. Cl. 461, 469 (2011); Boensel v. United States, 99 Fed. Cl. 607, 610 (2011).
A fact is material if it will make a difference in the result of a case under the
governing law. See Anderson v. Liberty Lobby, Inc., 477 U.S. at 248; see also Marriott
Int’l Resorts, L.P. v. United States, 586 F.3d 962, 968 (Fed. Cir. 2009) (quoting Anderson
v. Liberty Lobby, Inc., 477 U.S. at 248); Mata v. United States, 114 Fed. Cl. at 744;
Arranaga v. United States, 103 Fed. Cl. at 467-68; Thompson v. United States, 101 Fed.
Cl. 416, 426 (2011); Cohen v. United States, 100 Fed. Cl. at 469. Irrelevant or
unnecessary factual disputes do not preclude the entry of summary judgment. See
Anderson v. Liberty Lobby, Inc., 477 U.S. at 247–48; see also Scott v. Harris, 550 U.S.
372, 380 (2007); Monon Corp. v. Stoughton Trailers, Inc., 239 F.3d 1253, 1257 (Fed. Cir.
2001); Gorski v. United States, 104 Fed. Cl. 605, 609 (2012); Walker v. United States, 79
Fed. Cl. 685, 692 (2008); Curtis v. United States, 144 Ct. Cl. 194, 199, 168 F. Supp. 213,
216 (1958), cert. denied, 361 U.S. 843 (1959), reh'g denied, 361 U.S. 941 (1960).
When reaching a summary judgment determination, the judge’s function is not to
weigh the evidence and determine the truth of the case presented, but to determine
whether there is a genuine issue for trial. See Anderson v. Liberty Lobby, Inc., 477 U.S.
at 249; see, e.g., Schlup v. Delo, 513 U.S. 298, 332 (1995); Ford Motor Co. v. United
States, 157 F.3d 849, 854 (Fed. Cir. 1998) (“Due to the nature of the proceeding, courts
do not make findings of fact on summary judgment.”); TigerSwan, Inc. v. United States,
118 Fed. Cl. 447, 451 (2014); Dana R. Hodges Trust v. United States, 111 Fed. Cl. 452,
455 (2013); Cohen v. United States, 100 Fed. Cl. at 469–70; Boensel v. United States,
99 Fed. Cl. at 611; Macy Elevator, Inc. v. United States, 97 Fed. Cl. 708, 717 (2011); Dick
Pacific/GHEMM, JV ex rel. W.A. Botting Co. v. United States, 87 Fed. Cl. 113, 126 (2009);
Johnson v. United States, 49 Fed. Cl. 648, 651 (2001), aff’d, 52 F. App’x 507 (Fed. Cir.
2002), published at 317 F.3d 1331 (Fed. Cir. 2003). The judge must determine whether
the evidence presents a disagreement sufficient to require submission to fact finding, or
whether the issues presented are so one-sided that one party must prevail as a matter of
law. See Anderson v. Liberty Lobby, Inc., 477 U.S. at 250–52; Jay v. Sec’y of Dep’t of
Health and Human Servs., 998 F.2d 979, 982 (Fed. Cir.), reh’g denied and en banc
suggestion declined (Fed. Cir. 1993); Leggitte v. United States, 104 Fed. Cl. at 316. When
the record could not lead a rational trier of fact to find for the nonmoving party, there is no
genuine issue for trial, and the motion must be granted. See, e.g., Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Advanced Fiber Techs. (AFT) Trust
6
v. J & L Fiber Servs., Inc., 674 F.3d at 1372; Marriott Int’l Resorts, L.P. v. United States,
586 F.3d at 968; Am. Seating Co. v. USSC Grp., Inc., 514 F.3d 1262, 1266 (Fed. Cir.),
reh’g en banc denied (Fed. Cir. 2008); Rothe Dev. Corp. v. U.S. Dep’t of Def., 262 F.3d
1306, 1316 (Fed. Cir. 2001); Hall v. Aqua Queen Mfg., Inc., 93 F.3d 1548, 1553 n.3 (Fed.
Cir. 1996). In such cases, there is no need for the parties to undertake the time and
expense of a trial, and the moving party should prevail without further proceedings.
In appropriate cases, summary judgment:
saves the expense and time of a full trial when it is unnecessary. When the
material facts are adequately developed in the motion papers, a full trial is
useless. “Useless” in this context means that more evidence than is already
available in connection with the motion for summary judgment could not
reasonably be expected to change the result.
Dehne v. United States, 23 Cl. Ct. 606, 614–15 (1991) (quoting Pure Gold, Inc. v. Syntex,
(U.S.A.) Inc., 739 F.2d 624, 626 (Fed. Cir. 1984)), vacated on other grounds, 970 F.2d
890 (Fed. Cir. 1992) (citation omitted); see also Vivid Techs., Inc. v. Am. Sci. & Eng'g,
Inc., 200 F.3d 795, 806 (Fed. Cir. 1999) (“The purpose of summary judgment is not to
deprive a litigant of a trial, but to avoid an unnecessary trial when only one outcome can
ensue.”); Metric Constr. Co., Inc. v. United States, 73 Fed. Cl. 611, 612 (2006).
Summary judgment, however, will not be granted if “the dispute about a material
fact is ‘genuine,’ that is, if the evidence is such that a reasonable [trier of fact] could return
a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. at 248; see
also Long Island Sav. Bank, FSB v. United States, 503 F.3d 1234, 1244 (Fed. Cir.), reh’g
and reh’g en banc denied (Fed. Cir. 2007), cert. denied, 555 U.S. 812 (2008); Eli Lilly &
Co. v. Barr Labs., Inc., 251 F.3d 955, 971 (Fed. Cir.), reh’g and reh’g en banc denied
(Fed. Cir. 2001), cert. denied, 534 U.S. 1109 (2002); Gen. Elec. Co. v. Nintendo Co., 179
F.3d 1350, 1353 (Fed. Cir. 1999); TigerSwan, Inc. v. United States, 118 Fed. Cl. at 451;
Stephan v. United States, 117 Fed. Cl. 68, 70 (2014); Gonzales-McCaulley Inv. Group,
Inc. v. United States, 101 Fed. Cl. 623, 629 (2011). In other words, if the nonmoving party
produces sufficient evidence to raise a question as to the outcome of the case, then the
motion for summary judgment should be denied. Any doubt over factual issues must be
resolved in favor of the party opposing summary judgment, to whom the benefit of all
presumptions and inferences runs. See Ricci v. DeStefano, 557 U.S. 557, 586 (2009);
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. at 587–88; Yant v. United
States, 588 F.3d 1369, 1371 (Fed. Cir. 2009), cert. denied, 131 S. Ct. 69 (2010);
Dethmers Mfg. Co. v. Automatic Equip. Mfg. Co., 272 F.3d 1365, 1369 (Fed. Cir. 2001),
reh’g and reh’g en banc denied, 293 F.3d 1364 (Fed. Cir. 2002), cert. denied, 539 U.S.
957 (2003); Monon Corp. v. Stoughton Trailers, Inc., 239 F.3d at 1257; Wanlass v.
Fedders Corp., 145 F.3d 1461, 1463 (Fed. Cir.), reh’g denied and en banc suggestion
declined (Fed. Cir. 1998); see also Am. Pelagic Co. v. United States, 379 F.3d at 1371
(citing Helifix Ltd. v. Blok-Lok, Ltd., 208 F.3d 1339, 1345–46 (Fed. Cir. 2000)); Dana R.
Hodges Trust v. United States, 111 Fed. Cl. at 455; Boensel v. United States, 99 Fed. Cl.
at 611 (“‘The evidence of the nonmovant is to be believed, and all justifiable inferences
are to be drawn in his favor.’” (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. at 255)
7
(citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. at 587–88; Casitas
Mun. Water Dist. v. United States, 543 F.3d at 1283; Lathan Co. Inc. v. United States, 20
Cl. Ct. 122, 125 (1990))); see also Am. Seating Co. v. USSC Grp., Inc., 514 F.3d at 1266–
67; Vivid Techs., Inc. v. Am. Sci. & Eng'g, Inc., 200 F.3d at 807. “However, once a moving
party satisfies its initial burden, mere allegations of a genuine issue of material fact without
supporting evidence will not prevent entry of summary judgment.” Republic Sav. Bank,
F.S.B. v. United States, 584 F.3d 1369, 1374 (Fed. Cir. 2009); see also Anderson v.
Liberty Lobby, Inc., 477 U.S. at 247–48.
The initial burden on the party moving for summary judgment to produce evidence
showing the absence of a genuine issue of material fact may be discharged if the moving
party can demonstrate that there is an absence of evidence to support the nonmoving
party’s case. See Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986); see also Riley &
Ephriam Constr. Co. v. United States, 408 F.3d 1369, 1371 (Fed. Cir. 2005); Crown
Operations Int’l Ltd. v. Solutia Inc., 289 F.3d 1367, 1377 (Fed. Cir.), reh’g denied (Fed.
Cir. 2002); Trilogy Commc’ns, Inc. v. Times Fiber Commc’ns, Inc., 109 F.3d 739, 741
(Fed. Cir.) (quoting Conroy v. Reebok Int’l, Ltd., 14 F.3d 1570, 1575 (Fed. Cir. 1994),
reh’g denied and en banc suggestion declined (Fed. Cir. 1995)), reh’g denied and en
banc suggestion declined (Fed. Cir. 1997); Lockwood v. Am. Airlines, Inc., 107 F.3d 1565,
1569 (Fed. Cir. 1997); Vivid Techs., Inc. v. Am. Sci. & Eng'g, Inc., 200 F.3d at 807; RQ
Squared, LLC v. United States, No. 12-527C, 2015 WL 170230, at *6 (Fed. Cl. Jan. 14,
2015). If the moving party makes such a showing, the burden shifts to the nonmoving
party to demonstrate that a genuine dispute regarding a material fact exists by presenting
evidence which establishes the existence of an element essential to its case upon which
it bears the burden of proof. See Celotex Corp. v. Catrett, 477 U.S. at 322; see also
Wavetronix LLC v. EIS Elec. Integrated Sys., 573 F.3d 1343, 1354 (Fed. Cir. 2009); Long
Island Sav. Bank, FSB v. United States, 503 F.3d at 1244; Florida Power & Light Co. v.
United States, 375 F.3d 1119, 1124 (Fed. Cir. 2004); Schoell v. Regal Marine Indus., Inc.,
247 F.3d 1202, 1207 (Fed. Cir. 2001); Am. Airlines, Inc. v. United States, 204 F.3d 1103,
1108 (Fed. Cir. 2000); Vivid Techs., Inc. v. Am. Sci. & Eng'g, Inc., 200 F.3d at 807;
Rasmuson v. United States, 109 Fed. Cl. 267, 271 (2013). However, “a non-movant is
required to provide opposing evidence under Rule 56(e) only if the moving party has
provided evidence sufficient, if unopposed, to prevail as a matter of law.” Saab Cars USA,
Inc. v. United States, 434 F.3d 1359, 1369 (Fed. Cir. 2006).
“Questions of law are particularly appropriate for summary judgment.” Oenga v.
United States, 91 Fed. Cl. 629, 634 (2010) (citing Dana Corp. v. United States, 174 F.3d
1344, 1347 (Fed. Cir. 1999) (“Summary judgment was appropriate here [in Dana Corp.]
because no material facts were disputed, many being stipulated, and the only disputed
issues were issues of law. Moreover, on each issue one party or the other is entitled to
judgment as a matter of law.”)); see also Santa Fe Pac. R.R. v. United States, 294 F.3d
1336, 1340 (Fed. Cir. 2002) (“Issues of statutory interpretation and other matters of law
may be decided on motion for summary judgment.”).
Defendant argues that summary judgment is appropriate in the above captioned
case because, it claims, “there are no genuine issues of material fact in dispute and
defendant is entitled to judgment as a matter of law.” Plaintiff disagrees, arguing that there
8
are multiple questions of fact. Plaintiff states, “the Government specifications for moisture
content and the OVC hired engineering firm both provided different numbers for moisture
content. Who was right is an issue of fact.” Plaintiff next alleges, “[t]he government
disclaims any responsibility for the accuracy, true locations, and extent of geological
investigation. These are questions of fact and law.” (internal citation omitted). In its
response to defendant’s motion for summary judgment, plaintiff also makes a number of
additional allegations. For example, plaintiff argues that the government repeatedly asked
OVC to “re-evaluate its price proposal” and that “these bargaining proposals guaranteed
that the project would shift to the winter months.” Plaintiff also states, although without
providing sufficient support, that according to its project manager, the on-site soil could
not have been “used to support the structure” during the summer, “due to high moisture
content . . . .”
The factual disputes plaintiff tries to identify do not preclude summary judgment in
this case. In order for the court to rule on plaintiff’s claim, it is not necessary for the court
to make a finding regarding the actual specifications for the moisture content of the soil
at the construction site. The soil conditions plaintiff encountered were anticipated in the
government’s geotechnical report, which described projected conditions during several
seasons, including summer and winter. Plaintiff alleges that, “[t]he costs occasioned by
OVC to dig out and haul off the existing lean clay and replace it with gravel from an outside
source necessitated a Change Order in the amount of $321,561,” and that the contracting
officer declined any increase in payment above the awarded contract price. Other than
alleging it is entitled to this increase in price, plaintiff never cites an underlying contractual
or legal basis, nor does it define the precise nature of its claim. Defendant characterizes
plaintiff’s claim as a likely, attempted, Type I differing site conditions claim. In its motion
for summary judgment, defendant states:
OVC’s claim cites to and quotes FAR 52.236-3; however, it states that this
clause is the FAR’s Differing Site Conditions clause, FAR 52.236-2. FAR
52.236-3 is titled “Site Investigation and Conditions Affecting the Work.”
That clause does not support a claim by OVC against the Army. Instead,
FAR 52.236-3 states that the contractor has taken reasonable and prudent
steps to accurately ascertain the conditions of contract performance. It also
states that “the Government assumes no responsibility for any conclusions
or interpretations made by the Contractor based on the information made
available by the Government.” OVC’s complaint filed with this Court on
September 3, 2014 does not specifically mention the Differing Site
Conditions clause, FAR 52.236-2; however, OVC alleges facts similar to
those alleged in its claim. For purposes of this motion, we interpret OVC’s
claim and complaint [before this court] to assert a claim against the
Government pursuant to FAR 52.236-2, the contract’s Differing Site
Conditions clause.
(internal citations omitted). In its response to defendant’s motion for summary judgment,
plaintiff does not dispute defendant’s characterization of plaintiff’s claim as a Differing Site
Conditions clause claim. Moreover, plaintiff does not articulate an alternate legal theory
9
for recovery in either its complaint or in its response to defendant’s motion for summary
judgment.6
According to defendant, it appears, “OVC’s [sic] alleges that it is entitled to the cost
of providing granular fill pursuant to the contract’s Differing Site Conditions clause. FAR
52-236-2, ‘Differing Site Conditions’ was incorporated into the contract.” FAR 52.236-2
states:
(a) The Contractor shall promptly, and before the conditions are
disturbed, give a written notice to the Contracting Officer of (1) subsurface
or latent physical conditions at the site which differ materially from those
indicated in this contract, or (2) unknown physical conditions at the site, of
an unusual nature, which differ materially from those ordinarily encountered
and generally recognized as inhering in work of the character provided for
in the contract.
(b) The Contracting Officer shall investigate the site conditions
promptly after receiving the notice. If the conditions do materially so differ
and cause an increase or decrease in the Contractor's cost of, or the time
required for, performing any part of the work under this contract, whether or
not changed as a result of the conditions, an equitable adjustment shall be
made under this clause and the contract modified in writing accordingly.
FAR 52.236-2 (1984). Regarding the requirements for when differing site conditions are
present, defendant offers the following:
A Type I differing site conditions occurs when the “[s]ubsurface or latent
physical conditions at the site . . . differ materially from those indicated in
the contract.” A Type II differing site condition occurs when there are
“[u]nknown physical conditions at the site, of an unusual nature, which differ
materially from those ordinarily encountered and generally recognized as
inhering in work of the character provided for in the contract.” Neither OVC’s
claim nor complaint states which type of differing site condition it is
asserting. OVC’s complaint, however, indicates that OVC is asserting a
Type I differing site condition claim because OVC refers to known conditions
referenced in the geotechnical report.
6 If plaintiff intended to be making a common law breach of contract claim, as opposed to
a claim under the Differing Site Conditions clause, plaintiff would have been required to
demonstrate that it satisfied the same requirements in order to recover. See Int’l Tech.
Corp. v. Winter, 523 F.3d 1341, 1348 (Fed. Cir.) (“The same requirements apply whether
the contractor asserts such a common law breach claim or a Type I claim under the
Differing Site Conditions clause, a clause which is common in government construction
contracts, but was not included in ITC's contract with the government.”), reh’g denied
(Fed. Cir. 2008).
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(internal citation omitted).
To prevail on a claim for a Type I differing site condition, a contractor must prove,
by a preponderance of the evidence, that the conditions encountered at the project site
materially differed from those represented in the contract documents, the conditions must
have been reasonably unforeseeable to the contractor based on the information available
to the plaintiff at the time it submitted its bid, and the plaintiff must show that it reasonably
relied upon its interpretation of the contract and contract-related documents. Finally, the
plaintiff must show that, as a consequence of the difference between the expected and
the encountered conditions, the plaintiff suffered damages. See Int’l Tech. Corp. v.
Winter, 523 F.3d at 1348–49; Renda Marine, Inc. v. United States, 509 F.3d 1372, 1376
(Fed. Cir. 2007), reh’g and reh’g en banc denied (Fed. Cir. 2008); Comtrol, Inc. v. United
States, 294 F.3d 1357,1362 (Fed. Cir. 2002); H.B. Mac, Inc. v. United States, 153 F.3d
1338, 1345 (Fed. Cir. 1998); Stuyvesant Dredging Co. v. United States, 834 F.2d 1576,
1581 (Fed. Cir. 1987).
The threshold issue of whether the plaintiff is eligible for an equitable adjustment
for a Type I differing site conditions claim depends on the conditions indicated in the
contract documents. See Int'l Tech. Corp. v. Winter, 523 F.3d at 1348 (“[T]he contractor
must prove that a reasonable contractor reading the contract documents as a whole
would interpret them as making a representation as to the site conditions.” (citing Renda
Marine, Inc. v. United States, 509 F.3d at 1376; H.B. Mac, Inc. v. United States, 153 F.3d
at 1345)); Renda Marine, Inc. v. United States, 509 F.3d at 1376 (“In order to be eligible
to recover for a Type I differing site condition, a contractor must first prove, as a threshold
matter, that the contract contained some identification of the conditions to be encountered
at the site. The contractor must then prove by a preponderance of the evidence that the
conditions encountered during the contract performance differed materially from the
conditions indicated in the contract. To carry this burden, the contractor must demonstrate
that the conditions encountered were not reasonably foreseeable in light of all information
available to the contractor when bidding, that the contractor reasonably relied upon its
original interpretation of the contract, and that the contractor suffered damages as a result
of the material variation between the conditions expected and those encountered.” (citing
H.B. Mac, Inc. v. United States, 153 F.3d at 1345; Stuyvesant Dredging Co. v. United
States, 834 F.2d at 1581; P.J. Maffei Bldg. Wrecking Corp. v. United States, 732 F.2d
913, 916 (Fed. Cir. 1984)) (internal citations omitted); Randa/Madison Joint Venture III v.
Dahlberg, 239 F.3d 1264, 1274 (Fed. Cir. 2001) (“This court has previously explained that
‘in order to establish entitlement to an equitable adjustment by reason of a Type I differing
site condition[,] . . . the contractor must prove, by a preponderance of the evidence, that
the conditions indicated in the contract differ materially from those it encounters during
performance.’”(quoting H.B. Mac, Inc. v. United States, 153 F.3d at 1345) (alterations in
Randa/Madison Joint Venture III)); P.J. Maffei Bldg., Wrecking Corp. v. United States,
732 F.2d at 916 (“As a threshold matter, then, this kind [Type I] of Differing Site Conditions
claim is dependent on what is ‘indicated’ in the contract.”); Round Place, Inc. v. United
States, 31 Fed. Cl. 749, 751 (1994) (“An express representation in a contract specification
or drawing furnished by the government to the contractor depicting specific conditions on
a site can result in Type I Differing Site Conditions, if other conditions are encountered
during construction.”). The United States Court of Appeals for the Federal Circuit has
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made it clear that “[a] contractor cannot be eligible for an equitable adjustment for
changed conditions unless the contract indicated what those conditions would supposedly
be.” P.J. Maffei Bldg. Wrecking Corp. v. United States, 732 F.2d at 916; see also H.B.
Mac, Inc. v. United States, 153 F.3d at 1345 (“Determining whether a contract contained
indications of a particular site condition ‘is a matter of contract interpretation and thus
presents a question of law’. . . .” (quoting P.J. Maffei Bldg. Wrecking Corp. v. United
States, 732 F.2d at 916)) (internal citation omitted).
Plaintiff has not demonstrated that the conditions it encountered differed materially
from the conditions indicated in the contract. The Report of Geotechnical Investigation,
which was included with the solicitation, specified that the conditions likely would vary
between the seasons. The report stated:
The on-site lean clay will not be suitable for use as engineered fill during the
colder and wetter months of late fall, winter, and spring due to difficulty in
drying the material to obtain the optimum moisture content. We recommend
using an imported granular fill if earthwork operations are performed during
these months. Granular fill appears to be locally available from several
sources in the Quincy area . . . . Alternatively, consideration may be give[n]
to stabilizing the lean clay soils with hydrated lime to dry the lean clay and
allow for use as engineered fill. If possible, we strongly recommend
performing the earthwork operations during the summer months to limit the
costs associated with importing granular fill and/or stabilizing the on-site
lean clay.
The report later reiterated that the conditions would vary and that they would be less
favorable for beginning construction during the winter, noting:
As stated previously, we strongly recommend performing earthwork
operations during the summer months due to the difficulty in moisture
conditioning the on-site lean clay for use as engineered fill and maintaining
a stable subgrade. Earthwork performed during the wetter and colder winter
months will be more difficult and higher costs should be anticipated during
these months.
When OVC began the excavation work in January, 2012 following contract award,
bond approval,7 and submission by OVC of a proposed schedule in which OVC projected
construction would begin on December 24, 2011, the soil plaintiff encountered was too
moist for use for construction under the building. The soil conditions when construction
7 According to the contracting officer, prior to beginning excavation, the contractor was
required to receive bond approval and then to submit the bond approval to the
government for further approval. The contracting officer also stated in the final decision
that the contractor knew it would take up to 60 days to receive the necessary government
approvals and the contractor was late in submitting the required documents to the
government for review, further delaying plaintiff’s ability to begin construction.
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began, however, were not at odds with the conditions described in the contract
documents. Rather, the conditions were precisely as predicted for January. Plaintiff,
therefore, has not satisfied the first element of a Type I differing site conditions claim, that
the conditions encountered differed materially from those described in the contract
documents or from the time schedule plaintiff could have calculated, based on the time
sequence of solicitation issuance, discussions, and contract award. Plaintiff has not
demonstrated that the conditions it encountered were unforeseeable, based on all the
information available to plaintiff when plaintiff had its last opportunity to revise its proposal
before it submitted its final bid proposal on June 30, 2011. Given the inclusion of language
in the Report of Geotechnical Investigation regarding the unsuitability of the lean clay,
because the soil would be too moist for use as engineer fill during late fall, winter, and
spring, plaintiff’s interpretation that the need to remove the lean clay and replace it with
other granular fill materials constituted a change to the contract is not substantiated.
Plaintiff’s statement that it expected to complete the excavation work during the summer,
given the initial proposal submission date of May 19, 2011, also is unreasonable. Final
proposals were not due until July 1, 2011, at which time the government was entitled to
90 days to consider the proposals and make an award. When OVC submitted its final
proposal on June 30, 2011, it was aware that the government might not award the contract
before September 29, 2011 (90 days after the submission deadline of July 1, 2011) and,
therefore, should have known that summer excavation was unlikely, at best. Additionally,
the Report of Geotechnical Investigation described ground conditions during warm
weather months, as well as during cold weather months, indicating that the contract
contemplated that construction work might take place during any season. Plaintiff could
have projected that it would not be able to begin work during the summer and could have
adjusted its bid accordingly, prior to its final submission on June 30, 2011. OVC, however,
did not revise its bid once the fall and winter months approached, even once it was clear
that summer excavation was unlikely.
As indicated above, plaintiff argues that the parties’ disagreement with respect to
the government’s “responsibility for the accuracy, true locations, and extent of geological
investigation” is a disputed material fact. Under the terms of the solicitation, however,
plaintiff was alerted to conduct an independent investigation of the site conditions. The
first page of solicitation section 00 31 32, Geotechnical Data, states:
1.1 USE OF INFORMATION PROVIDED
A. Information included in the Geotechnical Report, as incorporated in this
Project Manual, is provided for reference only and is not part of the Contract
Documents.
B. Bidders are urged to examine the information provided, make their own
investigation of the Site before bidding, and obtain additional geotechnical
information should they desire.
...
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1.2 INTERPRETATION
A. Geotechnical data is provided only for information and convenience of
Bidders. The Government and Architect disclaim any responsibility for
accuracy, true location and extent of geotechnical investigation that has
been prepared by others. They further disclaim responsibility for
interpretation of that data by Bidders.
(capitalization in original). Even if plaintiff was entitled to rely on the government’s
December 20, 2010 Report of Geotechnical Investigation, as plaintiff contends it was
entitled to do, the report contained the relevant notices regarding the varying, seasonal
ground conditions, and explicitly informed bidders that it would be more expensive to
conduct the earthwork operations outside of the summer months.
As also indicated above, plaintiff disputes the accuracy of the moisture content
measurements provided by the government and offers information provided to plaintiff in
two letters from an engineer plaintiff hired to plaintiff (one, a single page letter and the
other, a page and one half letter). The government responds that the soil moisture
measurements obtained by plaintiff’s engineer were for a different depth than the
numbers the plaintiff cites from the government’s report, and that when comparing soil
moisture measurements at the same depth, there is no inconsistency. Regardless,
because the government’s geotechnical report included with the solicitation contains a
clear description of the varying ground conditions and the ramifications of building in
different seasons, information offered by plaintiff’s engineer regarding the moisture
content measurements does not raise a material question of fact or preclude summary
judgment. The government did not guarantee specific soil moisture measurements at the
time of construction to potential bidders. Rather, in its geotechnical report, the
government identified the ground conditions during different seasons, based on a range
of soil moisture levels. Plaintiff effectively was on notice, when it submitted its final bid on
June 30, 2011, that it was not likely that plaintiff would be able to start construction in the
summer months or use the on-site lean clay as engineer fill. Based on the submissions
of the parties and the attached documents filed with the court, there is no genuine issue
of material fact which would preclude summary judgment.
CONCLUSION
Defendant’s motion for summary judgment is GRANTED and plaintiff’s complaint
is DISMISSED, with prejudice. The Clerk of the Court is DIRECTED to enter JUDGMENT
consistent with this opinion.
IT IS SO ORDERED.
s/Marian Blank Horn
MARIAN BLANK HORN
Judge
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