CBCA 2482

CBCA 2482 DENIED; CBCA 2653 GRANTED: December 9, 2016 CBCA 2482, 2653 CHOCTAW TRANSPORTATION COMPANY, INC., Appellant, v. DEPARTMENT OF AGRICULTURE, Respondent. S. Leo Arnold and Matthew W. Willis of Ashley, Ashley & Arnold, Dyersburg, TN, counsel for Appellant. Danny L. Woodyard, Office of the General Counsel, Department of Agriculture, Little Rock, AR; and L. Benjamin Young, Office of the General Counsel, Department of Agriculture, Washington, DC, counsel for Respondent. Before Board Judges DANIELS (Chairman), GOODMAN, and DRUMMOND. GOODMAN, Board Judge. Appellant, Choctaw Transportation Company, Inc. (Choctaw or appellant), on behalf of itself and its subcontractor Bertucci Contracting Company, LLC (Bertucci),1 appeals two decisions issued by a contracting officer of respondent, Department of Agriculture, Natural Resources Conservation Service (NRCS). 1 Choctaw and Bertucci are referred to in this opinion when witnesses and documentation specific to each are mentioned. CBCA 2482, 2653 2 The contract was for the construction of a rock groin and eight breakwaters at Raccoon Island, in the Gulf of Mexico, off the coast of Louisiana. As more fully detailed in this decision, appellant submitted its bid for the contract in early August 2005 in the amount $4,056,032.50. Several weeks later, Hurricane Katrina struck the project site. Appellant was awarded the contract in early September 2005, and soon thereafter Hurricane Rita struck the project site and Hurricane Wilma entered the Gulf of Mexico. Respondent sent a survey team to re-survey the project site, and issued modification 1 to the contract in December 2005, concurrent with the notice to proceed. Modification 1 made specific alignment changes to the groin and changes to the breakwaters. In modification 1, the NRCS contracting officer stated that these changes were “due to changed water depths as the result of the hurricane,” and requested that appellant submit a price proposal in response to the changes ordered in the modification. Appellant and its subcontractor did not submit a price proposal before beginning performance. Later, during contract performance, appellant advised that a proposal would be submitted once the work was complete. Appellant concluded contract performance in September 2007. In February 2010, appellant submitted a proposal for an equitable adjustment as the result of the changes ordered in modification 1. The parties were unable to resolve the request for equitable adjustment. In January 2011, appellant submitted a certified claim on behalf of itself and Bertucci seeking compensation for delay and disruption resulting from modification 1 in the amount of $4,144,191.20. On April 15, 2011, respondent’s contracting officer issued a decision denying the certified claim in its entirety. Appellant’s ensuing appeal of this decision was docketed as CBCA 2482. On November 21, 2011, respondent’s contracting officer issued a second decision, asserting a government claim of actual damages against Choctaw in the amount $15,032.19, and appellant’s appeal of this decision was docketed as CBCA 2653. A hearing on the merits in these appeals (the hearing) was held on April 20-24, 2015, in Washington, D.C. Two fact witnesses testified in support of appellant’s claims: Mr. Gregory Ford, Choctaw’s vice president of operations, and Mr. Anthony Zelenka, Bertucci’s president.2 Two witnesses designated as experts testified on behalf of appellant: Mr. Ruben McCoy, a computer-aided design (CAD) consultant, and Mr. William Connole, a professional engineer, who was tendered as an expert on delay and disruption analysis and costs. Mr. Ford and Mr. Connole were also called as rebuttal witnesses by appellant. 2 References to “Mr. Zelenka” in this decision are to Anthony Zelenka. There are occasional references to Steve Zelenka, Mr. Zelenka’s brother. CBCA 2482, 2653 3 Respondent presented the testimony of five fact witnesses: Mr. Ralph Broome, a procurement analyst for the NRCS, who served as contracting officer for the contract at issue; Mr. Bradley Sticker, a state construction engineer during the contract period; Mr. Dale Garber, an engineer for the NCRS and the contracting officer’s technical representative (COTR) for the contract at issue; Mr.