CBCA 6892

GRANTED IN PART: June 28, 2022 CBCA 6892 AHTNA CONSTRUCTION & PRIMARY PRODUCTS COMPANY, LLC, Appellant, v. DEPARTMENT OF AGRICULTURE, Respondent. Adam W. Cook and Shane C. Coffey of Birch Horton Bittner & Cherot, Anchorage, AK, counsel for Appellant. Randall Lockyear, Jennifer McVey Thomas, and Boykin D. Lucas, Office of the General Counsel, Department of Agriculture, Juneau, AK, counsel for Respondent. Before Board Judges BEARDSLEY (Chair), SHERIDAN, and CHADWICK. SHERIDAN, Board Judge. Ahtna Construction & Primary Products Company, LLC (ACPPC) appealed a decision of the United States Department of Agriculture (the Government or Agriculture) on a certified claim for cost overruns on a remediation project. In January 2021, the Board partially denied relief because the contract said nothing about soil conditions, and ACPPC did not “allege an affirmative representation or indication in contract documents about the frozen soil at issue in this case.” Ahtna Construction & Primary Products Co. v. Department of Agriculture, CBCA 6892, 21-1 BCA ¶ 37,777, at 183,359. From April 12 to 16, 2021, we held a hearing concerning defective specifications, acceleration, delay, and damages. ACPPC failed to present cohesive, compelling evidence of liability and causation resulting in injury. We deny relief for defective specifications because ACPPC is an experienced CBCA 6892 2 Alaska contractor that bid on a fixed-price contract in interior Alaska that did not state the condition of the soil to be expected, and ACPPC should have known it might have to work with frozen material. Other arguments similarly fail for lack of evidence. Because the Government acknowledges it owes ACPPC a final payment of $449,517.80, we award ACPPC that amount. Background We previously summarized many of the relevant facts. See Ahtna Construction, 21-1 BCA at 183,356–58. We repeat facts below as necessary to explain the basis for our decision. Agriculture awarded the contract to ACPPC in February 2018. In general, the work involved regrading a basin in the Delta–Clearwater Remediation Project in Delta Junction, Alaska, with fill and then installing non-frozen woody debris, hydro-seeding, rip-rap, and plants to stabilize the project. The price was fixed at $7,868,014.95, some of which consisted of fixed unit prices for estimated quantities. Agriculture issued an “optional” notice to proceed, authorizing mobilization, in March 2018 and the formal notice to proceed on June 4, 2018. ACPPC mobilized on June 11. The contract required completion within 150 days of the formal notice to proceed, i.e., by November 1, 2018. ACPPC’s superintendent testified that during a site visit in May 2018 and after starting work, ACPPC found “hard ice,” frozen soil, and deep frost in the on-site spoil piles from which ACPPC was to obtain the fill. ACPPC promptly requested a contract modification to expand the length of the project in which ACPPC could work at any given time from 1000 feet to 1500 feet or more, saying that the extra space would allow ACPPC to spread more fill to thaw and dry. Agriculture had concerns about potential environmental degradation and flooding. The parties discussed modification language that included a waiver imposing risks on ACPPC but did not come to an agreement on a modification. ACPPC blames many of the delays it experienced on its inability to work outside the authorized zone. Government witnesses opined that ACPPC had enough room near the spoil piles to thaw fill but that ACPPC chose not to use that space because doing so would have required equipment that ACPPC did not have on site. ACPPC fell behind its approved schedule. On July 26, 2018, the contracting officer issued a cure notice instructing ACPPC to begin working twelve hours per day, seven days a week and to submit a plan for additional resources, labor, and equipment that ACPPC would use to get back on schedule. Witnesses for ACPPC testified that they thought the cure notice was unjustified and the acceleration would have been unsafe.