ASBCA 62281

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of - ) ) Granite Construction Company ) ASBCA No. 62281 ) Under Contract No. W9126G-15-C-0037 ) APPEARANCES FOR THE APPELLANT: Michael A. Branca, Esq. Joseph N. Frost, Esq. Peckar & Abramson, P.C. Washington, DC APPEARANCES FOR THE GOVERNMENT: Michael P. Goodman, Esq. Engineer Chief Trial Attorney Clark Bartee, Esq. Engineer Trial Attorney U.S. Army Engineer District, Galveston OPINION BY ADMINISTRATIVE JUDGE EYESTER PURSUANT TO BOARD RULE 11 Granite Construction Company (Granite) appeals a decision by the U.S. Army Corps of Engineers (Corps or government) denying Granite compensation for 19 days of a 49-day suspension of work. The Corps concluded that those 19 days were adverse weather delays, which Granite should have anticipated pursuant to the terms of the contract. The Board previously granted Granite partial summary judgment on a contract interpretation issue concerning the interplay of the contract’s unusually severe weather, default, and suspension of work clauses. According to the decision, the only remaining issue for the Board to decide is whether the Corps suspended the work for a reasonable period of time pursuant to the suspension of work clause. The Board has jurisdiction over the appeal pursuant to the Contract Disputes Act, 41 U.S.C. § 7101. The parties elected to waive a hearing and submit the remaining issue in this appeal on the record pursuant to Board Rule 11. Based on the following, we conclude that the Corps’ suspension of work for 49 days was reasonable and deny Granite’s appeal. FINDINGS OF FACT 1. On August 31, 2015, the Corps awarded Granite fixed-priced contract No. W9126G-15-C-0037 to perform the construction of new outlet structures and cutoff walls at the Addicks and Barker dams to support the Buffalo Bayou and Tributaries federal flood control project in Houston, Texas (Joint Stipulations of Fact (JSF) ¶ 1; R4, tab 1 at 2574, 2628). 1 The contract incorporated by reference Federal Acquisition Regulation (FAR) 52.242-14, SUSPENSION OF WORK (APR 1984) and FAR 52.249-10, DEFAULT (FIXED-PRICE CONSTRUCTION) (APR 1984) (R4, tab 1 at 2575). 2. In addition, the contract included SECTION 01 10 00.00 45, Part 1.4, TIME EXTENSIONS FOR UNUSUALLY SEVERE WEATHER (31 OCT 1989) (ER 415-1-15), which explained how to determine time extensions for unusually severe weather (more severe than the adverse weather anticipated for the project location during any given month) in accordance with the default clause. Part 1.4 included a table showing monthly anticipated adverse weather delays and Granite was required to reflect those delays in its project schedule. For example, the table showed anticipated adverse weather delays (based on a seven-day work week) for the months of August (10), September (13) and October (10), for a combined total of 33 days for those months. The contract also required Granite to record any adverse weather and resulting impact to normally scheduled work on its daily contractor quality control reports. If the actual adverse weather delay days exceeded the number of days anticipated in the schedule, the contracting officer was to convert qualifying delays to calendar days and issue a modification in accordance with the default clause. (R4, tab 1 at 2633) 3. In addition, the contract addressed the release of water from the dams. Specifically, Section 01 00 10, Part 1.4 explained that “under normal conditions” the operational, combined release of water from the Addicks and Barker dams was limited to 2,000 cubic feet per second (CFS) as measured downstream at the Piney Point gauging station (JSF ¶ 4; R4, tab 1 at 2628-29). Section 00 31 33, Paragraph 2.3 of the contract similarly provided that the combined releases could not exceed 2,000 CFS “under normal operating conditions” and that the maximum discharge from one reservoir of 2,000 CFS required the other to be closed (JSF ¶ 5; R4, tab 1 at 2536, 2545). Part 1.4.1 addressed emergency operations at the dams (R4, tab 1 at 2629). The contract explained that when emergency scheduled releases were in effect, releases could reach 8,000 CFS for each dam (id. at 2544). 4. On September 29, 2015, the Corps issued, and Granite acknowledged, a Notice to Proceed.