ASBCA 62019

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of - ) ) D&J Machinery, Inc. ) ASBCA No. 62019 ) Under Contract No. W912EP-15-C-0022 ) APPEARANCES FOR THE APPELLANT: Lochlin B. Samples, Esq. Jeanne M. Harrison, Esq. Karl Dix Jr., Esq. Smith, Currie & Hancock LLP Atlanta, GA APPEARANCES FOR THE GOVERNMENT: Michael P. Goodman, Esq. Engineer Chief Trial Attorney Bruce E. Groover, Esq. Codee L. McDaniel, Esq. Susan E. Symanski, Esq. Engineer Trial Attorneys U.S. Army Engineer District, Jacksonville OPINION BY ADMINISTRATIVE JUDGE WILSON ON APPELLANT’S MOTION FOR SUMMARY JUDGMENT AND THE GOVERNMENT’S MOTION TO STRIKE Appellant, D&J Machinery, Inc., brings this appeal alleging that the United States Army Corps of Engineers (USACE or government) provided defective contract specifications, which then caused appellant to incur additional costs in an attempt to comply with the contract specifications. Appellant moves for summary judgment, arguing that the government breached an implied warranty that satisfactory contract performance would result from adherence to contract specifications. The government counters that the contract specifications at issue were performance specifications not design specifications, and no warranty existed. The government also moves to strike portions of appellant’s reply brief, which purportedly allege a new claim that USACE breached its duty to disclose superior knowledge related to design of the anchor block system under the above-referenced contract. Appellant counters that the government’s contention that it raised a new claim in its reply brief fails to distinguish a new argument from a new claim. For the reasons stated below, appellant’s motion is denied and as such, the government’s motion to strike is rendered moot.  STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION 1. On September 18, 2015, the Army Corps of Engineers awarded Contract No.W912EP-15-C-0022 to D&J Machinery. The firm-fixed-price contract was intended to improve water deliveries and the historical natural hydrologic conditions within the Shark River Slough, through construction of control structures and a seepage canal at the Everglades National Park, Miami, Florida. (Compl. at 2; R4, tab 2 at 293-94) 2. Principal elements of this contract, as they apply to this appeal, were the construction of three gated concrete control structures, completion of seepage canal C-358, and the backfill and reconstruction of a pump station. Each control structure was to be equipped with a manually operated double leaf slide gate system, 84” diameter High Density Polyethylene (HDPE) 1 pipe with tie-down anchor blocks, handrails, an access hatch, and lightning protection system. (R4, tab 2 at 293) 3. The project was designed by the Jacksonville District, U.S. Army Corps of Engineers (R4, tab 2 at 235), with performance-based elements (see e.g., R4, tab 2 at 482, 511 § 3.1.4, 512 § 3.2.2). 4. The contract specifications include Section 03 31 01.00 10 – CAST-IN- PLACE STRUCTURAL CONCRETE FOR CIVIL WORKS. Section 1.2 – Design Requirements, which requires the contractor to “select concrete mixture proportions so that the strength and W/C requirements are met. Submit concrete mixture proportions as determined by the contractor and submitted for review.” (R4, tab 2, at 498) Section 1.3 – Submittals, requires that government approval was required for elements noted with a “G”. Concrete mixture proportions, underwater concrete methods and equipment, and cementitious materials, admixtures, and curing compound were all designated with a “G”. (R4, tab 2 at 501-02) Section 3.2.2 – Placing Concrete Underwater reiterates the requirement for approval of the methods and equipment and states, “[d]eposit concrete in water by a tremie or concrete pump” (R4, tab 2 at 512). Flowable fill is not referenced in either sections 1.3 or 3.2.2. 5. Section 03 31 01.00 10 – CAST-IN-PLACE STRUCTURAL CONCRETE FOR CIVIL WORKS, references flowable fill in Part 2 – PRODUCTS, 2.1 – Materials.