ASBCA 58791

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeals of -- ) ) John C. Grimberg Co., Inc. ) ASBCA Nos. 58791, 59167, 59168 ) 59169, 59170,59171 ) 59717 ) Under Contract No. W912DR-09-C-0038 ) APPEARANCES FOR THE APPELLANT: Edward J. Parrott, Esq. Stephanie M. Rochel, Esq. Watt, Tieder, Hoffar & Fitzgerald, LLP McLean, VA APPEARANCES FOR THE GOVERNMENT: Michael P. Goodman, Esq. Engineer Chief Trial Attorney Scott C. Seufert, Esq. David B. Jerger, Esq. Engineer Trial Attorneys U.S. Army Engineer District, Baltimore OPINION BY ADMINISTRATIVE JUDGE PEACOCK These appeals involve claims for alleged differing site conditions, delays, acceleration and multiple changes arising out of construction of a Bio lab facility at Fort Detrick, Maryland. Entitlement only is before us for decision. For the reasons detailed below, we sustain ASBCA No. 58791, sustain in part ASBCA No. 59717 and deny ASBCA Nos. 59167, 59168, 59169 and 59170. At trial, the parties agreed to dismiss ASBCA No. 59171 with prejudice (tr. 4/6-7). FINDINGS OF FACT A. CAISSONS DIFFERING SITE CONDITION-ASBCA No. 58791 1. The referenced contract was awarded to John C. Grimberg Co., Inc. (appellant. JCG or Grimberg) by the Baltimore, Maryland, District U.S. Army Corps of Engineers (Corps or government) on May 29, 2009, for construction of the Navy Medical Biological Defense Research Laboratory (Biolab or Project) (R4, tab 2 at I). The amount of the contract was $21,087,000.00 (id. at 2). The period of performance was 720 days from receiving notice to proceed (id. at 1). The contract was a design-build contract (id; GPF 62 1). As is typical of a design-build contract, no unit prices for rock excavation were set forth because the contractor's foundation solution is not established at the time of award (tr. 2/43, 4/40; GPF 63). The contract incorporated Federal Acquisition Regulation (FAR) 52.236-2, DIFFERING SITE CONDITIONS (APR 1984J(the DSC clause); FAR 52.243-4, CHANGES (JUN 2007); and FAR 52.249-10, DEFAULT (FIXED-PRICE CONSTRUCTION) (APR 1984) (APFs 5-9; GPF 13). t. Fort Detrick and its Karst Geology Generally 2. The Project is located at Fort Detrick in Frederick County, Western Maryland (tr. 5/28, 31). Geologically, the rock beneath Fort Detrick is part of the Frederick Formation (R4, tab 5 at 2-3). The Frederick Formation is known for its karst geology (tr. 5/26; GPF 1). 3. Karst geology is a geological formation shaped by the dissolution of a layer or layers of soluble bedrock, usually carbonate rock such as limestone, dolomite, or gypsum, but has also been documented for weathering-resistant rocks, such as quartzite, given the right conditions (R4, tab l at 4 n.3). Karst is a recognized geohazard, "[k]nown for its variability and its degree of inconsistency, both vertically and horizontally over extremely short distances" (tr. 5/27). Karst also has significant top of rock variation (tr. 8/127, 167). Karst is unique in that the existence of a solid appearing outcrop right at the location of a footing or pier does not guarantee that good rock will appear below the outcrop (tr. 7/167). For this reason offerors should anticipate that conditions at one location can differ from conditions at another location (tr. 7/169). Karst conditions can vary over short distances (tr. 8/139). In karst, "you can have a mass of soil in the solution feature, or a karst feature, and immediately adjacent to it is good hard rock (tr. 3/89, see also tr~ 8/139, 141). Karst is "consistently inconsistent" (tr. 5/32-33; GPF 2). 4. Voids are present throughout the Frederick Formation (tr. 8/130). They are present in areas without strong evidence of ·'strike and dip'' (tr. 8/159-60). Strike and dip are considerations in karst limestone but are not the defining features for understanding 1 The Board issued a briefing order in these appeals, inter alia, requirihg that each party, in its initial post-hearing brief, propose findings of fact supported by detailed citations to pertinent portions of the record.