ASBCA 62928

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of - ) ) Jemison & Partners, Inc. ) ASBCA No. 62928 ) Under Contract No. W912P8-19-C-0018 ) APPEARANCE FOR THE APPELLANT: W. Lee Kohler, Esq. Kohler Construction Law, APLC Metairie, LA APPEARANCES FOR THE GOVERNMENT: Michael P. Goodman, Esq. Engineer Chief Trial Attorney William G. Meiners, Esq. Engineer Trial Attorney U.S. Army Engineer District, New Orleans OPINION BY ADMINISTRATIVE JUDGE O’CONNELL This is a dispute about topsoil, or, more specifically, a dispute about whether appellant would be paid for the actual quantities of soil placed, or simply a lump sum. Appellant seeks $53,104.80. The parties waived a hearing and submitted the appeal on the record under Board Rule 11. The Board denies the appeal. FINDINGS OF FACT 1. The parties entered into the above-captioned contract for greenspace restoration on February 15, 2019. The work included the replacement of topsoil and the planting of sod and trees along the median of Jefferson Avenue in Orleans Parish, Louisiana at a price of $747,298.57. (R4, tab 9 at 1, 3-5, 39, 44) 1 2. The Corps issued the solicitation on November 16, 2018 (R4, tab 4 at 1). The bid schedule for the solicitation listed an “estimated quantity” of 2,355 cubic yards (CY) of topsoil and requested unit price bids, which would result in an “estimated amount” for that contract line item number (CLIN 0002). Note 1 to the bid schedule provided that: The Contractor shall verify all quantities on the plan; quantities are provided as an aid to bidders only. 1 Rule 4 citations are to the .pdf page number in the electronic file.  Quantity takeoff mistakes made by the Contractor shall be no cause for additional costs to the Government. (R4, tab 4 at 8) (emphasis in original) The bid schedule, with Jemison’s bid numbers, was included in the contract but the word “estimated” was omitted from the column heading so that “Estimated Quantity” became “QTY” and “Estimated Amount” became “Total Amount.” Note 1, however, was included in the contract (R4, tab 9 at 41). 3. The Standard Form 1449 Continuation Sheet in the solicitation (and the contract) identified CLIN 0002 as “FFP” or firm-fixed price (R4, tab 4 at 3; tab 9 at 3). The Board finds that a reasonably prudent bidder would have understood from reading the Continuation Sheet in conjunction with the Bid Schedule that the price per CY was fixed but the quantity of topsoil was an estimate. 4. The Payment Procedures section of the solicitation, at Section 1.4, Payments to the Contractor, required the submission of invoices and “quantity backup data by the [c]ontractor,” and provided that upon initial site work acceptance Jemison would be paid “100% contract cost for topsoil” (R4, tab 4 at 15). This provision was included in the contract (R4, tab 9 at 48). 5. The Excavation and Fill section of the solicitation at Part 4, Measurement and Payment, provided: Measurement for work required under this section shall be an in place topsoil cubic yard measurement. The topsoil quantities are provided as an aid to bidders only. The contractor shall take measurements subtracting rootball volume at each area requiring excavation and soil replacement. . . (R4, tab 4 at 34, 43) This provision was included in the contract (R4, tab 9 at 76). 6. Jemison submitted various questions to the Corps during negotiation of the contract. The Corps answered a question from Jemison related to the topsoil in an amendment to the solicitation issued on January 28, 2019: Q1. . . . [C]an we retain the same estimated quantities for top soil and add a qualification in the revised proposal that the actual quantities utilized will be verified by the USACE in the field? It is our understanding the USACE carefully confirms material quantities (such as top soil) in the field as work progresses. We understand that the 2  USACE will only pay for verified materials used in the project. A1. . . .