CBCA 7456

DENIED: August 22, 2023 CBCA 7456 KLOEPFER INC., Appellant, v. DEPARTMENT OF TRANSPORTATION, Respondent. Keane F. Kloepfer, Project Manager of Kloepfer Inc., Paul, ID, appearing for Appellant. Rayann L. Speakman, Office of Chief Counsel, Federal Highway Administration, Department of Transportation, Vancouver, WA, counsel for Respondent. Before Board Judges SHERIDAN, SULLIVAN, and CHADWICK. CHADWICK, Board Judge. Appellant, Kloepfer Inc. (Kloepfer), seeks additional compensation under a contract to construct a road for a subagency of respondent, Department of Transportation (DOT). DOT moves for summary judgment. We grant the motion and summarily deny the appeal. Background The Federal Highway Administration awarded the subject contract in May 2021 to Canyon Valley Concrete, Inc., which styled itself as “FKA” (formerly known as) Kloepfer. The contract required construction of four miles of road in Cassia County, Idaho, for a price CBCA 7456 2 of approximately $3.6 million, consisting of fixed unit prices or lump sums for approximately forty pay items. The contractor’s bid price in response to the solicitation had originally been effective only until April 11, 2021, but Kloepfer (apparently acting on behalf of the offeror and eventual contractor) had agreed in writing on April 2, without reservation, to extend the agency’s acceptance period by sixty days, which was past the award date.1 The bulk of the claim concerns the roadway excavation pay item, which was priced at $15.30 per cubic yard, totaling $140,209.20 for 9164 cubic yards. Subsection 24.02 of the specifications defined roadway excavation as “includ[ing] all material encountered regardless of its nature or characteristics.”2 The specifications also set forth requirements for “rock blasting” as necessary for excavation. DOT posted a geotechnical report with the solicitation for the contract. The awarded contract cited the report in a Physical Data clause but did not incorporate the report by reference. The report listed the soil results from fifteen holes bored near the project area. Most of the borings returned silt, sand, or clay, but three struck basalt, and the report stated that “the majority of the project is underlain by basalt.” We take judicial notice that basalt is a hard, volcanic rock.3 Kloepfer states without citing specific evidence that “[b]ecause the bores were taken hundreds of feet away from the roadway, one could not conclude for a fact that there [wa]s rock in the roadway.” Kloepfer also emphasizes the following language of the geotechnical report: Often, variations occur between exposed topography and borings, the nature and extent of which do not become evident until additional exploration or construction is conducted. A reevaluation of the recommendations in this report should be made after performing on-site observations during construction to note the characteristics of any variations. The variations may result in additional earthwork, excavation, and construction costs, and it is suggested a contingency be provided for this purpose. 1 The contractor identified John F. Kloepfer as its point of contact prior to award. Keane F. Kloepfer signed post-award correspondence, the certified claim, and the notice of appeal. Both individuals consistently used Kloepfer Inc. letterhead. The contracting officer addressed the decision on the claim to the contractor, “FKA” Kloepfer. 2 The contract incorporated by reference FP-14, Standard Specifications for Construction of Roads and Bridges on Federal Highway Projects (2014). 3 See https://volcanoes.usgs.gov/vsc/glossary/basalt.html (last visited Aug. 22, 2023). CBCA 7456 3 In July and August 2021, after starting work, the contractor advised the agency that it had encountered basalt in the road path, which Kloepfer (again apparently writing for the contractor) characterized on August 10 as “Differing Site Conditions as per [48 CFR] 52.236-2(a)(2) [(Apr. 1984)],” a contract clause.