ASBCA 57638

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of-- ) ) RLB Contracting, Inc. ) ASBCA No. 57638 ) Under Contract No. W912P8-07-C-0102 ) APPEARANCES FOR THE APPELLANT: Christopher B. Conley, Esq. Daniel J. Caruso, Esq. Simon, Peragine, Smith & Redfearn, L.L.P. New Orleans, LA APPEARANCES FOR THE GOVERNMENT: Thomas H. Gourlay, Jr., Esq. Engineer Chief Trial Attorney William G. Meiners, Esq. Engineer Trial Attorney U.S. Army Engineer District, New Orleans OPINION BY ADMINISTRATIVE JUDGE THRASHER This appeal involves a Corps of Engineers (Corps) contract with RLB Contracting, Inc., (RLB) to enlarge a levee in southwest Louisiana using borrow material excavated from an adjacent ditch and the resulting claim arising from the realignment of the adjacent ditch. We have jurisdiction under the Contract Disputes Act of 1978 (CDA), 41 U.S.C. §§ 7101-7109. The government concedes entitlement and this decision only addresses quantum. FINDINGS OF FACT The Project Solicitation 1. The Corps issued Solicitation No. W912P9-07-B-0019 (solicitation) on 2 July 2007 to enlarge the Gordy Levee, part of the Atchafalaya Basin, Levees West of Berwick, West Bayou Sale (Bayou Sale project) located in southwest Louisiana 1 (supp. R4, tab 1). The location of the levee and the adjacent borrow ditch was in close proximity to the Gulf of Mexico and East Cote Blanche Bay (supp. R4, tab 43, Drawing No. 8) The solicited work consisted of clearing and grubbing, excavating the borrow ditch, trimming outfall drainage pipes in the existing ditch, constructing compacted fill levee embankment, removing and replacing culverts under ramps, placing surfacing 1 The solicitation was for a sealed bid 100% HUB Zone set-aside fixed-price constructi1 contract. material on the levee crown and ramps, fertilizing, seeding and mulching, installation of a new gas line, and other incidental work (supp. R4, tab 1). The largest single performance requirement of the solicitation, and the work at issue here, was the excavation and embankment work requiring the contractor to excavate soil from an adjacent ditch and use that soil to enlarge an existing levee (supp. R4, tab 1 at 02318-a, § 02332). As originally designed, the levee was required to be constructed to a grade of elevation + 12.5' (supp. R4, tab 43, Drawing No. 8). 2. The excavation and embankment work was addressed in the bid schedule as a work item for "Embankment, Compacted Fill" at contract line item number (CLIN) 0004 (embankment work), with an estimated quantity of 197,200 cubic yards (CYs) of material to be placed (supp. R4, tab 1 at 00010-3). The bid schedule contained no separate line item for the contractor's work in excavating the embankment material from the borrow source, nor for processing the material prior to placement. Instead, the cost and payment for this part of the job was included within the embankment work line item. In addition, Section 02332 provided that the contractor would only be paid for the embankment work for the amount of cubic yards of material measured and placed on the levee. (Supp. R4, tab 1 at 02318-1, 02332-3). The specifications did allow for payment of embankment placed that was the subject of settlement, but only if the contractor installed settlement gages in accordance with the terms of the contract. The contract provided that the contractor will forfeit payment for settlement if settlement gages (settlement plates) are not installed ''in strict accordance" with the specifications and drawings (supp. R4, tab 1 at 02332-4, ~ 1.4.3). RLB elected not to install settlement plates (tr. 1168-70). 3. The solicitation contained the standard contract plans and specifications found in most levee construction projects but additionally imposed special requirements on the project that increased the complexity of the scheduling on the contract (app. 2nd supp. R4, tab 23 at 2). Section No. 02332 of the contract, "Embankment", included the following requirements: a. The specifications provided that the embankment and berms were to be constructed from the earth obtained from the borrow areas described in Section 02318, "EXCAVATION," and as shown on the drawings (supp. R4, tab 1 at 02332-8, ~ 1.7.1). b.