ASBCA 59952

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of -- ) ) Optimum Services, Inc. ) ASBCA No. 59952 ) Under Contract No. W912EP-09-C-0033 ) APPEARANCE FOR THE APPELLANT: Joseph W. Lawrence, II, Esq. Vezina, Lawrence & Piscitelli, P.A. Fort Lauderdale, FL APPEARANCES FOR THE GOVERNMENT: Thomas H. Gourlay, Jr., Esq. Engineer Chief Trial Attorney Carolyn J. Fox, Esq. Assistant District Counsel U.S. Army Engineer District, Jacksonville OPINION BY ADMINISTRATIVE JUDGE TING Optimum Services, Inc. (OSI) entered into a contract with the Jacksonville District Corps of Engineers (the Corps) to reconstruct an existing Disposal Area, and to dredge Rose Bay in Volusia County, Florida, to restore its ecosystem. OSI subcontracted the dredging part of its contract to Ryan Incorporated Southern (Ryan). In our entitlement decision, we found that Ryan encountered a Type I differing site condition (DSC) in dredging eight out of the nine Acceptance Sections, and we remanded the case to the parties for negotiation of the quantum of equitable adjustment and the extent of the delay in contract completion caused by the DSC. Optimum Services, Inc., ASBCA No. 58755, 15-1BCAi\35,939. We resumed proceedings when the parties were unable to settle their quantum differences. To determine equitable adjustment, we use the Measured Mile Method comparing what Ryan would have spent without encountering the DSC and what it did spend with the DSC. The parties' disputes centered on what adjustments should be made to the Measured Mile formula. We conclude that OSI/Ryan is entitled to an equitable adjustment of $1,267, 124.51 and a time extension of 66 calendar days. FINDINGS OF FACT Background 1. Rose Bay is located along the Intracoastal Waterway in east central Volusia County, Florida. As a part of the Rose Bay Task Force's multi-phase project to restore Rose Bay's ecosystem, the Corps entered into a contract with OSI in June 2009 to reconstruct an existing Disposal Area at Lost Creek Island (Disposal Area) 1 and to remove by dredging unconsolidated sediments from the bay. In July 2009, OSI subcontracted the dredging work to Ryan. Dredging was to be performed by Acceptance Sections. There were nine Acceptance Sections (AS): AS#l through AS#9. Upon the start of dredging in May 2010, Ryan ran into what it believed to be hard bottom at a much higher elevation in AS#8. 2 The Corps determined what Ryan encountered was not hard bottom and required Ryan to continue to dredge through the firm layers of crust encountered. The crust consisted of whole oyster shells, sand, and shell fragments interlocked with mud and sand. Optimum, 15-1BCAii35,939 at 175,653. 2. Except in AS#7, Ryan continued to run into and dredge firm layers of crust in AS#l, AS#2, AS#3, and AS#4. By the end of October 2010, five months after Ryan began dredging, the Corps confirmed that the crusts "on top of the silt layer" and "dredged material with heavy shell content" were found "in patches scattered around the acceptance sections." In December 2010, the Corps deleted certain areas in AS#5 and AS#6 from dredging. In areas not deleted, Ryan continued to run into crusts and high concentrations of shell. The Corps acknowledged in areas not deleted, "we made them dredge it." Ryan completed its dredging in February 2011, three months longer than planned. Optimum, 15-1BCAii35,939 at 175,653. 3. Ryan's Request for Equitable Adjustment (REA), dated 31 July 2012, sought $1,192,828 for dredging shells and sand, $55,104 in consultant cost for a total of $1,247,932, and a time extension of 93 calendar days (ASBCA No. 58755 (58755), ex. 200, tab D at 4, 4 7-48). Ryan contended that it incurred extra costs as a result of a constructive change and a differing site condition because it was "required to dredge oyster beds although oyster bed dredging was specifically excluded under the terms of the contract." It contended that it "worked an additional 93 calendar days to complete the dredging at Rose Bay." (Id.) On 30 August 2012, OSI submitted to the Corps administrative contracting officer (ACO) Ryan's REA (58755, R4, tab 3 at 36). With field and home office overhead plus profit, OSI's REA sought $1,877,057.79: 1 The construction of the Lost Creek Island Disposal Area was the subject of another appeal decided in 2013.