ASBCA 62779

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of - ) ) RLB Contracting, Inc. ) ASBCA No. 62779 ) Under Contract No. W9126G-17-C-0043 ) APPEARANCES FOR THE APPELLANT: Michael H. Payne, Esq. Casey J. McKinnon, Esq. Cohen Seglias Pallas Greenhall & Furman, P.C. Philadelphia, PA APPEARANCES FOR THE GOVERNMENT: Michael P. Goodman, Esq. Engineer Chief Trial Attorney Clark Bartee, Esq. Engineer Trial Attorney U.S. Army Corps of Engineers District, Galveston OPINION BY ADMINISTRATIVE JUDGE SWEET This appeal involves dredging work that appellant RLB Contracting, Inc. (RLB) performed for the United States Army Corps of Engineers (Corps or USACE) in the Gulf Intracostal Waterway (GIWW), Texas Main Channel, San Antonio Bay, Texas. While performing that work, RLB struck the Tomcat West Pipeline (Pipeline)—a submerged natural gas pipeline—causing an explosion that damaged the dredger, and allegedly delayed completion of the contract. The Corps imposed liquidated damages. RLB submitted a claim to the contracting officer (CO) seeking a time extension and remission of the liquidated damages due to the purported excusable delays of defective specifications, differing site conditions, and a breach of the duty of good faith and fair dealing. After the CO denied that claim, RLB filed this appeal. The Corps moves for summary judgment on all of RLB’s causes of action. We grant that motion and dismiss this appeal for the reasons discussed below.  STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION I. The Pipeline 1. The Pipeline was a natural gas pipeline owned by Genesis Energy (Genesis) that crossed the GIWW (R4, tabs 1 at 39, 10 at 277, 282-83). 2. In a November 2016 email chain (Email Chain), Corps personnel expressed concerns that the Pipeline and another pipeline were not adequately buried to -24 feet MLWW, 1 and thus at risk of an accidental strike (app. resp. ex. 1 at 814-16). 3. As a result, on November 23, 2016, the Corps forwarded its concerns to Morris P. Herbert, Inc. (Herbert)—an engineering firm (app. resp. ex. 1 at 812-13; SAGIMF ¶ 31; RSAGIMF ¶ 31). 2 Herbert forwarded the Corps’ concerns to Genesis on November 23, 2016, with an email stating that the Corps was directing Genesis to lower the pipelines as soon as possible (id. at 812). 4. On November 29, 2016, Herbert wrote to the Corps that “[t]he pipeline will be lowered to minimum 24 feet MLLW as directed by USACE.” (app. resp. ex. 1 at 809). 5. On March 23, 2017, Herbert sent the Corps an as-built drawing (Genesis As- Built Drawing) and stated that “[a]s shown on the drawing, the pipeline was lowered as directed by USACE Operations” (app. resp. ex. 6 at 917). The Genesis As-Built 1 “MLLW” stands for Mean Lower Low Water and means the “average of the lower low water height of each tidal day observed over the National Tidal Datum Epoch.” See https://tidesandcurrents.noaa.gov/datum_options.html#:~:text=MLLW*,the% 20National%20Tidal%20Datum%20Epoch. 2 “SUMF” refers to the Corps’ statement of undisputed material fact. “RSUMF” refers to RLB’s response to the SUMF. “SAGIMF” refers to RLB’s statement of additional genuine issues of material fact. “RSAGIMF” refers to the Corps’ response to the SAGIMF. 2 Drawing indicated as follows: (gov’t reply ex. 2 at 919). As the Genesis As-Built Drawing’s bottom drawing shows, the Pipeline was adequately buried to at least -24 feet MLWW for all of the 325-foot distance between the setbacks (id.). 3 That 325-foot distance was wider than the 300- foot dredging area in this appeal (R4, tab 1 at 38-39). II. The 0043 Contract 6. On April 7, 2017, the Corps issued Solicitation W9126G-17-B-0011, which resulted in the award of Contract No. W9126G-17-C-0043 (0043 Contract) to RLB on 3 RLB’s suggestion that the Genesis As-Built Drawing showed that Genesis only lowered the Pipeline across the 125-foot channel is incorrect (app. resp.