ASBCA 62402

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of - ) ) L.S. Black-Loeffel Civil Constructors JV ) ASBCA No. 62402 ) Under Contract No. W912ES-18-C-0004 ) APPEARANCES FOR THE APPELLANT: Reginald M. Jones, Esq. Tara Hosseini, Esq. Diana McGraw, Esq. Nicholas T. Solosky, Esq. Fox Rothschild LLP Washington, DC APPEARANCES FOR THE GOVERNMENT: Michael P. Goodman, Esq. Engineer Chief Trial Attorney Molly M. Hunt, Esq. Simon R. Rutherford, Esq. Trial Attorneys U.S. Army Engineer District, St. Paul OPINION BY ADMINISTRATIVE JUDGE WOODROW ON THE PARTIES’ CROSS MOTIONS FOR SUMMARY JUDGMENT This appeal addresses who should pay for the costs of delays in the construction of a lock end cell in the Mississippi River. As explained later in the decision, a lock end cell is a large concrete structure protecting the guidewalls at the entrance of the lock channel from strikes by barge traffic entering the lock. The contractor, L.S. Black-Loeffel Civil Constructors JV (L.S. Black), claims that the U.S. Army Corps of Engineers (Corps) is responsible for delaying the project into a period of colder weather and forcing L.S. Black to install a costly thermal break to control the temperature of the concrete in the end cell. L.S. Black also claims that the Corps withheld information about the design and construction of a previous guidewall extension and end cell on the Mississippi River that would have changed how L.S. Black budgeted for the project. Count I of L.S. Black’s complaint alleges government-directed changes and government caused delays; Count II alleges a claim for differing site conditions; while Count III alleges a breach of the duty of good faith and fair dealing. On August 13, 2021, the Board granted leave for appellant to amend its complaint to add Count IV, which alleged a breach of the implied duty to disclose superior knowledge.  The government has filed a motion for summary judgment as to each of L.S. Black’s claims. L.S. Black has filed for summary judgment as to all of the counts in its complaint except for its claim of differing site conditions. On April 7, 2022, the Board held an oral argument regarding the parties’ cross-motions for summary judgment. We grant summary judgment in favor of the government as to all four counts of appellant’s amended complaint. Accordingly, we deny the appeal. STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION The following facts are undisputed or uncontroverted. A. The Contract 1. On February 20, 2018, the U.S. Corps of Engineers, St. Paul District, awarded firm fixed-price Contract No. W912ES-18-C-0004 to L.S. Black in the amount of $3,075,576 for the construction of a large concrete end cell at Lock and Dam No. 6 on the Mississippi River (R4, tab 17). The end cell protects the guidewalls at the entrance of the lock channel from strikes by barge traffic entering the lock. Guidewalls are long extensions of the lock walls, in either the upstream or downstream direction, that are parallel to the lock wall. Guidewalls serve primarily to guide the long tows into the lock and to provide mooring facilities for tows too long to be accommodated in a single lockage. The end cell is an approximately forty-foot-wide sheet pile cell filled with cement at the end of the guidewall (R4, tab 17; https://www.mvp.usace.army.mil/Home/Projects/Article/1121179/mississippi-river- lock-and-dam-6-guidewall-end-cell/). 2. Prior to bidding on the contract, L.S. Black consulted with an engineer regarding the need for special measures for the construction of a concrete end cell during the winter season when the river becomes non-navigable (R4, tab 105 at 7-8). Prior to bidding on the contract, L.S. Black also consulted with two of its subcontractors regarding end cells previously constructed in the Mississippi River (R4, tab 105 at 7-8). 3. The original contract completion date was February 28, 2019 (R4, tab 1 at 47) .1 1 The government numbered pages in its Rule 4 file with a prefix of letters and leading zeros.