ASBCA 62961

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of - ) ) Phylway Construction, LLC ) ASBCA No. 62961 ) Under Contract No. W912P8-19-C-0015 ) APPEARANCES FOR THE APPELLANT: Brian S. Wood, Esq. Jacob W. Scott, Esq. Smith, Currie & Hancock, LLP Washington, DC APPEARANCES FOR THE GOVERNMENT: Michael P. Goodman, Esq. Engineer Chief Trial Attorney Thomas M. Taff, Jr., Esq. Engineer Trial Attorney U.S. Army Engineer District, New Orleans OPINION ON GOVERNMENT’S MOTION FOR SUMMARY JUDGMENT BY ADMINISTRATIVE JUDGE D’ALESSANDRIS In 2019, respondent, the United States Army Corps of Engineers (USACE or government) awarded a Mississippi River levee construction project to appellant, Phylway Construction, LLC (Phylway). The levee work involved a construction technique called Deep Soil Mixing (DSM) that involved blending a hardening agent with the native soils, in situ, to improve the soil, and thus, performance of the levee. Relevant to this appeal, the contract provided that the contractor would not be permitted to perform levee work when the level of the Mississippi River exceeded 11 feet as measured at the Carrolton, Louisiana river gauge. Further, the contract provided that, in the event of high river levels, the contractor would be entitled to an extension of time consistent with Federal Acquisition Regulation (FAR) FAR 52.249- 10 Default (Fixed-Price Construction) – a provision that provides for non-compensable time extensions. In 2019 and 2020, before and during performance of the levee project, the elevation of the Mississippi River exceeded 11 feet on 230 and 171 days, respectively. The number of high water days during this period was roughly two to three times the 1987-2018 average of 80 days per year. During these extended high water periods, Phylway’s subcontractor, JAFEC USA, Inc. (JAFEC), was unable to perform the DSM levee work, resulting in a higher cost of performance. The government issued four bilateral contract modifications extending the performance period by over a year (372 days). Phylway requested that JAFEC be permitted to perform certain contract work when the river level exceeded 11 feet, but the USACE declined the requests. In addition, Phylway’s requests for equitable adjustment were declined. Phylway sponsors a pass-through claim by its subcontractor JAFEC, alleging a constructive suspension of work, or that the contract was commercially impracticable. The government moves for summary judgment based on the express terms of the contract assigning the risk to Phylway, and also because Phylway’s claims are barred by release and accord and satisfaction, based on the contract modifications extending the period of performance. We grant the government’s motion for summary judgment. STATEMENT OF FACTS FOR PURPOSES OF THE MOTION I. The Contract The government awarded Contract No. W912P819C0015 to Phylway on February 13, 2019, for $ 48,654,095 (R4, tab 6 at GOV90-93). The contract had a duration of 730 calendar days (id. at GOV90). The contract required Phylway to perform work including “clearing and grubbing, disposal of debris material, demolition of existing asphalt and replacing, levee enlargement construction, installation of deep material mixing for ground improvement, construction of levee ramps, surfacing, seeding, fertilizing, mulching, and any other related work” on the Mississippi River levee in Plaquemines Parish, Louisiana (id. at GOV343). Deep material mixing, or Deep Soil Mixing is an advanced ground improvement technique through blending a hardening agent with the native soils, in situ. (Compl. at ¶ 9). The process is a way to improve the character, strength, and stiffness of the soil. (Id.) As a revolver hollow shaft with mixing paddles and/or the mixing tool advance into the soil, the cement grout is pumped through the hollow shaft discharging laterally along the lower mixing paddle where it is mixed with the native soil. (Id.; R4, tab 6 at GOV543- 47) The contract’s High River Work Restrictions clause provides: At such time that the Mississippi River is at or above + 11.0 feet, NAVD 88 (2004.65) at the Carrolton gage (New Orleans District), all construction work shall cease until such time as the elevation subsides below + 11.0 feet. . .