ASBCA 61076

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of -- ) ) Tidewater, Inc. ) ASBCA No. 61076 ) Under Contract No. W9126G-09-D-Ol l l ) APPEARANCES FOR THE APPELLANT: Elizabeth Haws Connally, Esq. Connally Law, PLLC San Antonio, TX William W. Sommers, Esq. Langley & Banack, Inc. San Antonio, TX APPEARANCES FOR THE GOVERNMENT: Michael P. Goodman, Esq. Engineer Chief Trial Attorney S. DeAnn Lehigh, Esq. Michael T. Geiselhart, Esq. Engineer Trial Attorneys U.S. Army Engineer District, Little Rock OPINION BY ADMINISTRATIVE JUDGE YOUNGER ON THE GOVERNMENT'S MOTION FOR SUMMARY JUDGMENT The United States Army Corps of Engineers (the Corps) has moved for summary judgment in this appeal, in which appellant Tidewater, Inc. (Tidewater) asserts that it encountered a Type I differing site condition. In particular, Tidewater alleges that soil conditions when it sought to install piers, and to obtain fill, for a building addition differed materially from those indicated in contract documents due to excessive rainfall, forcing it to change its construction method and incur additional performance time. The Corps argues that Tidewater has failed to allege essential elements of a Type I differing site condition, including the element of identification of the contract indications that form the basis of its claim. We grant the motion and deny the appeal. STATEMENT OF FACTS FOR PURPOSES OF THE MOTION 1. By date of September 30, 2009, the Corps awarded Tidewater Contract No. W9126G-09-D-Ol l l (the base contract), a multiple award, indefinite-delivery, indefinite-quantity, task order contract under which awardees were to provide all labor and equipment for repairs, alterations, construction and design-build of healthcare facilities for the U.S. Air Force Medical Services, U.S. Army Medical Command and other Corps of Engineers' customers with healthcare needs (R4, tab 4 at 2-3 of 37). 2. The contract contained various standard clauses, including Federal Acquisition Regulation (FAR) 52.236-2, DIFFERING SITE CONDITIONS (APR 1984 ); FAR 52.236-3, SITE INVESTIGATION AND CONDITIONS AFFECTING THE WORK (APR 1984); and FAR 52.243-4, CHANGES (JUN 2007) (R4, tab 4 at 13 of 27). 3. By date of July 27, 2012, the Corps issued Request for Proposal (RFP) No. W9126G-12-U-1016-0001 to Tidewater and other awardees, seeking proposals relating to a task order for the Barksdale Dental Clinic Project, to "create a complete and usable facility" ( app. supp. R4, tab 1 at l ). The RFP included Attachment G, "Site Surveys, Geotechnical Reports & Fill Material," which states in part: "The Contractor shall be responsible for providing all site surveys, geotechnical data, and fill material required for constntction and or utility installation. This includes obtaining all necessary permits and soil testing. Any existing surveys provided are for information only (FIO)." (Id at 51) In section 2.5, "Regional Setting,'' the RFP described the soils as composed of alluvial deposits of clay, silt and sand with varying bearing capacity. Section 2.5 also provided that "water table elevation is often high." (Id at 768) 4. It is undisputed that Tidewater participated in site visits on July 23, 2012, and August 10, 2012 ( compl. and answer ,r 13 ). 5. By date of August 16, 2012, the Corps issued Amendment No. 0003 to the RFP, requesting contractors to respond with proposals to "create a complete and usable facility" for the dental unit that would occupy the designated space ( app. supp. R4, tab 1 at 1307). The Corps stated that "[t]he magnitude of this requirement is estimated over $5,000,000.00" (id.). 6. The amendment included Design Compatibility Guidelines promulgated by the Air Force for work performed at Barksdale Air Force Base. The guidelines added that a ·'geotechnical report including ... design recommendations by a qualified geotechnical engineer is required." (App. supp. R4, tab 1 at 768) The guidelines also advised contractors that "[r]ainfall averages 46.6 inches annually, with the greatest monthly rainfall occurring in spring" (id. at 769). 7.