ASBCA 62527

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of - ) ) Tanik Construction Company, Inc. ) ASBCA No. 62527 ) Under Contract No. W911KB-14-D-0016 ) APPEARANCE FOR THE APPELLANT: B. Neal Ainsworth, Jr., Esq. Ainsworth Law Wasilla, AK APPEARANCES FOR THE GOVERNMENT: Michael P. Goodman, Esq. Engineer Chief Trial Attorney Carl F. Olson, Esq. Engineer Trial Attorney U.S. Army Engineer District, Alaska OPINION BY ADMINISTRATIVE JUDGE PROUTY Before us is a government motion for summary judgment premised upon the fact that appellant, Tanik Construction Co., Inc. (Tanik) signed a release, waiving its rights to advance claims on the issues before us. Tanik does not dispute that it signed the release, but produces three affidavits that it says provides evidence that it signed the release only after being assured that it could still bring a later claim. Generally, extrinsic evidence of Tanik’s intent is forbidden from our consideration by the parol evidence rule, but there are exceptions to this rule, including fraud. Under the very forgiving standards that apply to raising disputed facts in opposing motions for summary judgment, Tanik has produced enough evidence to avail itself of this defense and avoid summary judgment. STATEMENT OF FACTS FOR PURPOSES OF THE MOTION I. The Contract and Task Order The United States Army Corps of Engineers (the Corps) awarded the above-captioned contract to Tanik on April 9, 2014 (R4, tab 50 at COE 447 1). It was a multiple award task order contract for performing sustainment, restoration, and modernization of various government facilities in Alaska (id. at COE 449). 1 The government-provided Rule 4 file is Bates numbered with the prefix “COE” appearing before a six-digit number that begins with zeroes. Here, we delete the unnecessary zeroes.  A few months after the award of the contract, on September 25, 2014, the Corps awarded Task Order No. 0001 (the TO) to Tanik. The TO was for apron 2 improvements at the Coast Guard Station, Kodiak, Alaska. The amount of the TO was $5,738,047 and it had a completion date of October 1, 2015. (R4, tab 50 at COE 568, 574, 596) The original scope of the TO required the asphalt apron to be milled by two inches prior to sealing cracks and resurfacing. (SUMF ¶ 2). 3 On October 2, 2014, Tanik entered a subcontract with Brechan Enterprises to perform the lion’s share of the work on the project, including the milling of the existing asphalt and the re-paving. The amount of this subcontract was $4,864,000. (R4, tab 48 at COE 338-39) II. Along Comes a Differing Site Condition A. Discovery of Paved-Over Metal Tie-Downs and Performance of a Survey to Determine Their Extent On May 13, 2015, after performance of the TO had begun, Tanik informed the Corps that it had discovered metal tie-downs in the apron that had been paved over by a few inches of asphalt and would adversely affect its ability to mill the asphalt. Characterizing the existence of these hidden tie-downs as a differing site condition, Tanik proposed conducting a ground penetrating radar (GPR) survey to identify the locations of all such tie-downs. (See R4, tab 4 at COE 47-48) The Corps agreed with Tanik that the use of GPR to localize the covered tie-downs and other metal obstructions was appropriate and issued bilateral contract Modification No. P00005 (Mod 5) on August 27, 2015 for Tanik to conduct such a GPR survey (R4, tab 23 at COE 109-10). Mod 5 paid Tanik $480,816 (id. at COE 110) and explicitly stated that it did not increase the time to conclude the contract (id. at COE 111). Finally, it included a “Closing Statement” providing that: The contractor hereby accepts the foregoing adjustment as a final and complete equitable adjustment in full accord and satisfaction of all past, present and future liability originating under any clause in the contract by reason of the facts and circumstances giving rise to this modification. 2 An apron is a hard surface on an airfield for maneuvering and parking aircraft. 3 SUMF is short for the Statement of Undisputed Material Facts included in the government’s motion for summary judgment.