ASBCA 60780

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of -- ) ) Burnham Associates, Inc. ) ASBCA No. 60780 ) Under Contract No. W912WJ-12-C-0009 ) APPEARANCE FOR THE APPELLANT: John D. Fitzpatrick, Esq. Pingitore & Fitzpatrick, LLC Cambridge, MA APPEARANCES FOR THE GOVERNMENT: Thomas J. Warren, Esq. Acting Engineer Chief Trial Attorney Theresa A. Negron, Esq. Engineer Trial Attorney U.S. Army Engineer District, New England OPINION BY ADMINISTRATIVE JUDGE O'CONNELL This appeal arises from a contract to perform dredging in Boston Harbor. Burnham Associates, Inc. (Burnham) submitted a certified claim seeking additional money on two issues: $334,464 due to the government's use of a previously undisclosed pre-dredge survey to calculate final quantities; and $70,144.94 due to delays caused by shipping traffic in the harbor. The parties have both filed motions for summary judgment and briefs supporting their respective positions. Upon discussion with the Board regarding whether material facts were in dispute, the parties agreed to submit this appeal on the written record under Board Rule 11. The Board allowed the parties to file supplemental briefs, Rule 4 supplements, or declarations. Only entitlement is before us. We sustain the appeal as to the pre-dredge survey but deny it with respect to the shipping traffic delays. FINDINGS OF FACT 1. On 16 May 2012, the U.S. Army Corps of Engineers, New England District, (Corps or USACE) issued a solicitation for a project entitled "Rock Removal, Boston Harbor Boston, Massachusetts" (R4, tab 6 at 1). The contract subsequently incorporated the solicitation (R4, tab 12 at 2). Pre-Dredge Surveys 2. The Geotechnical Data section of the solicitation stated that a USACE contractor had conducted "a bathymetric, geophysical and geotechnical investigation of areas shown in the contract drawings from May-June 2010" (R4, tab 6 at 37). Somewhat  confusingly, however, the drawings indicated that they were based upon a hydrographic survey conducted in March 2011 (id. at 170-71 ). 3. The Summary of Work section stated that seven areas of rock had been identified "during the recent subsurface investigations of Boston Harbor" and that there were about 525 cubic yards of material to be removed (R4, tab 6 at 43). 4. The Measurement and Payment section of the solicitation provided that USACE would pay contract line item number (CLIN) 0002 (dredging and disposal of rock) "by computing the volume between the bottom surface shown by soundings of the last pre-dredge survey made before dredging begins and the bottom surface shown by the soundings of a post-dredge survey made as soon as practicable after the removal of the material" (R4, tab 6 at 50). The solicitation provided that the contractor would not be paid for material dredged outside the defined areas (id. at 152); it refers to the material eligible for payment as the "payable quantity" (id. at 127). 5. Depths in areas that have been dredged can change over time due to currents, ship traffic stirring up the bottom, large tide fluctuations, and/or weather (R4, tab 38, ii 2 (supp. Preston decl.)). As a result, the Corps generally conducts a pre-dredge survey within six months of the start of dredging (id. ii 12). Consistent with this practice, the solicitation stated that another pre-dredge survey "may be performed by the Government prior to the start of Contractor dredging operations at the dredging sites" (R4, tab 6 at 43-44). However, the Corps opted not to conduct a pre-award/pre-dredging commencement survey (R4, tabs 9-10). 6. While the bidders only knew about the March 2011 and earlier surveys, the Corps had, in fact, conducted a survey within the six-month pre-dredge window when it issued the solicitation, namely, a hydrographic survey of the harbor conducted on 12, 14 and 15 March 2012 (R4, tabs 4, 30). The Corps conducted this survey in response to a request from the Massachusetts Port Authority (Massport), which was aware of the incomplete rock removal in the federally-maintained portion of the harbor channel and was concerned that it might affect a tall ships/War of 1812 bicentennial event planned that summer.