ASBCA 63031

DOCUMENT FOR PUBLIC RELEASE The decision issued on the date below is subject to an ASBCA Protective Order. This version has been approved for public release. ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of - ) ) C. J. Mahan Construction Company ) ASBCA No. 63031 ) Under Contract No. W912QR-18-C-0033 ) APPEARANCES FOR THE APPELLANT: Lawrence M. Prosen, Esq. Josephine M. Bahn, Esq. Cozen O’Connor Washington, DC Michael W. Currie, Esq. Currie & Associates LLC Grove City, OH APPEARANCES FOR THE GOVERNMENT: Michael P. Goodman, Esq. Engineer Chief Trial Attorney James M. Inman, Esq. R. Lauren Horner, Esq. Zachary J. Grader, Esq. Engineer Trial Attorneys U.S. Army Engineer District, Louisville OPINION BY ADMINISTRATIVE JUDGE D’ALESSANDRIS Appellant, C.J. Mahan Construction Company (Mahan) entered into a contract with respondent, the United States Army Corps of Engineers (government or USACE) to remove a lock and dam on the Ohio River, near Brookport, Illinois. Mahan employed divers to remove underwater metal portions of the lock and dam structure. Unlike recreational SCUBA diving in the crystal-clear waters of a Caribbean island, this underwater demolition work was performed by surface supplied air in water with minimal visibility, a swift current, and the additional hazard of floating debris. Because of these dangers, the contract required compliance with the diving operations section of the USACE Safety and Health Requirements Manual (EM 385). An appendix to the dive section of the manual provides “Manning Levels for Dive Teams” specifying a four-person minimum team size (diving supervisor, diver, standby diver, and tender) for one diver performing the type of demolition work involved in the project. The appendix further provides that the standby diver can act as a second working diver if certain conditions are met, including the addition of a second tender, creating a minimum dive team size of five.  DOCUMENT FOR PUBLIC RELEASE The decision issued on the date below is subject to an ASBCA Protective Order. This version has been approved for public release. Mahan bid the contract based on a proposed five-person dive team, with two working divers. Mahan submitted dive safety plans based on five-person crews with two working divers, and the government approved Mahan’s dive safety plans. Around this time, two events relevant to the dispute occurred: first, the USACE appointed a new District Dive Coordinator (DDC); and second, a diver died on a nearby but separate USACE project. When Mahan attempted to use a second working diver on this project, the USACE informed Mahan that it would be required to employ a sixth crew member. Mahan submitted a request for equitable adjustment seeking compensation for the additional costs it claims to have incurred due to lower productivity during the period it had to work with a single diver, and the added costs of a sixth crew member when it worked with two divers. The government denied Mahan’s REA despite issuing a contract modification to Mahan on another nearby dive contract for the same requirement of employing a sixth crew member. On another similar nearby dive project the government included a note to bidders that additional staffing beyond that required by EM385 would be required. The parties agreed to submit these appeals on the record without a hearing pursuant to Board Rule 11 and have requested that the Board decide entitlement and quantum. For the reasons stated below we find that the government constructively changed the contract by requiring Mahan to employ a sixth dive team member, after initially approving Mahan’s dive safety plan to use five-member dive teams. We grant Mahan damages in the amount of $1,076.686.85. FINDINGS OF FACT A. The Solicitation and Contract The government issued a sealed bid solicitation on July 30, 2018 (R4, tab 7 at 446). The solicitation indicated that the contract would be firm-fixed-price (id. at 468-69).