ASBCA 61068

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of - ) ) Trade West Construction, Inc. ) ASBCA No. 61068 ) Under Contract No. W912PM-15-C-0024 ) APPEARANCES FOR THE APPELLANT: Karl Dix, Jr., Esq. Lochlin B. Samples, Esq. Smith, Currie & Hancock LLP Atlanta, GA APPEARANCES FOR THE GOVERNMENT: Michael P. Goodman, Esq. Engineer Chief Trial Attorney David C. Brasfield, Jr., Esq. Carl E. Pruitt, Jr., Esq. Engineer Trial Attorney U.S. Army Engineer District, Mobile OPINION BY ADMINISTRATIVE JUDGE STINSON Appellant Trade West Construction, Inc., (Trade West or TWC), appeals a contracting officer’s denial of its October 21, 2016, claim, in the amount of $304,062, for shaping armor stone prior to placing it on top of an existing jetty. Trade West argues that the government wrongfully rejected the armor stone it wished to use, thereby forcing it to spend time and money shaping armor stone to make it acceptable to the government (R4, tab 3). 1 We have jurisdiction pursuant to the Contract Disputes Act of 1978, 41 U.S.C. §§ 7101-7109. We previously denied the parties’ cross-motions for summary judgment, finding triable issues of fact which could not be resolved on summary judgment. Trade West Construction, Inc., ASBCA No. 61068, 20-1 BCA ¶ 37,713 at 183,076 (Trade West I). The parties agreed to submit this appeal on the record, pursuant to Board Rule 11, for a decision on entitlement only. Each party submitted initial and responsive briefs. For the reasons set forth below, we deny the appeal. FINDINGS OF FACT 1. On September 25, 2015, the United States Army Corps of Engineers (USACE), South Atlantic Division, Wilmington District (SAW) awarded Trade West Contract No. W912PM-15-C-0024 (the Contract), in the amount of $3,294,362, for 1 The government’s initial Board Rule 4 file was submitted in paper form and included tabs marked 1 through 5.10. The government’s joint supplemental Rule 4 file was submitted electronically and included tabs marked 006 through 090. South Jetty repairs to the Masonboro Inlet located in New Hanover County, North Carolina (R4, tab 4.1 at 126, 132-133; Joint Statement of Stipulated Facts (JSSF) 1). 2 The Contract required placement of armor stone, each weighing from 14 to 22 tons, onto an existing jetty, insuring that the armor stone “form a compact mass and interlock with each other and the existing stones” (R4, tab 4.1 at 134, 298; JSSF 1). Contract Specifications 2. The Contract included specifications for “Exterior Improvements,” Section 32 05 00.38, entitled “Stone.” Contained within that section was Part 1, “General,” Part 2, “Products,” and Part 3, “Execution.” (R4, tab 4.1 at 293; JSSF 2) 3. Part 1.1, entitled “Scope,” provided, “[t]he work under this section shall include all plant, labor, materials, work surface, and equipment required for the furnishing, transportation, storage, and placing of stone as shown on the drawings” (R4, tab 4.1 at 294; JSSF 3). 4. Part 2.1, entitled “Materials,” included Part 2.1.1, “Granite/Gneiss,” which provided, in part, “stone shall be furnished in random sizes ranging in weight as indicated in the subparagraph ‘Stone Size and Gradations’” (R4, tab 4.1 at 296). 5. Part 2.1.2, entitled “Armor Stone,” provided, in part: Stone shall consist of fresh, sound, hard, dense, durable, crystalline igneous or metamorphic rock which shall be separated from bedrock by quarrying. The stone shall be of such quality that the individual stone integrity and permanence within the jetty is assured under all conditions to which it is subjected. .... The stone shall be free from open or incipient cracks, joints, seams, fissures and structural planes of weakness which might contribute to spalling or breakdown from; handling and placing, freeze-thaw cycles, wet-dry cycles, or from wave action. The stone shall be furnished in blocky and angular shapes.