ASBCA 62580

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeals of - ) ) J. R. Filanc Construction Company, Inc. ) ASBCA Nos. 62580, 62581 ) 62616, 62645 ) Under Contract No. N62473-17-C-3403 ) APPEARANCES FOR THE APPELLANT: Kelly A. Floyd, Esq. Dustin R. Jones, Esq. Finch, Thornton & Baird, LLP San Diego, CA APPEARANCES FOR THE GOVERNMENT: Craig D. Jensen, Esq. Navy Chief Trial Attorney David M. Marquez, Esq. Trial Attorney OPINION BY ADMINISTRATIVE JUDGE HERZFELD Appellant, J.R. Filanc Construction Co., Inc. (Filanc), moves to compel respondent, the United States Department of the Navy (Navy), to respond to interrogatories and requests for admission. For the reasons discussed below, we grant-in-part and deny-in- part Filanc’s motion to compel. STATEMENT OF FACTS FOR PURPOSES OF THE MOTION On November 30, 2016, the Navy (through the Naval Facilities Engineering Systems Command – Southwest) awarded contract No. N62473-17-C-3403 (Contract) to Filanc to construct facilities needed to produce, divert, transport, store, measure, and deliver raw water from the Santa Margarita River on Marine Corps Base Camp Pendleton, California, to the Fallbrook Public Utility District in Fallbrook, California. (R4, tab 14 at 3002-03, 3007)* During the performance of the Contract, Filanc encountered problems and submitted several certified claims. On August 20, 2019 (as revised on February 12, 2020), Filanc submitted a certified claim for $441,515 (plus interest) due to alleged differing site conditions encountered in demolishing and re-paving asphalt. (R4, tab 35) On May 28, 2020, the Navy’s contracting officer issued a final decision denying Filanc’s * The Navy submitted the Rule 4 file with bates numbering that includes the prefix “GOV” and three zeroes, which we leave out of our citations for ease of reference. claim (R4, tab 36). The Navy also asserted that Filanc owed a $757,000 credit to the Navy for deviating from the Contract’s requirements and gave Filanc 30 days to make the credit (R4, tab 36 at 7669). On June 15, 2020, Filanc filed two notices of appeal to the May 28, 2020 contracting officer’ s final decision, challenging the denial of its claim (ASBCA No. 62580) and the Navy’s assertion that Filanc owed the Navy a credit (ASBCA No. 62581). On August 5, 2020, the Navy’s contracting officer issued another final decision unilaterally modifying the Contract and reducing the contract value by $757,000, consistent with the statement in the May 28, 2020 final decision (R4, tab 38). On August 18, 2020, Filanc appealed the August 5, 2020 contracting officer’s final decision (ASBCA No. 62645). On February 6, 2020, Filanc submitted an additional certified claim to the Navy alleging Filanc incurred additional costs of $1,686,196 related to: (1) a differing site condition encountered in performing dewatering work due to rip rap (broken rock placed along the shoreline to prevent erosion) under the Santa Margarita River; (2) government- caused delays in obtaining permits and environmental monitoring of an endangered species and correcting defective designs; (3) government-caused delay in providing and then restricting access to several job sites; and (4) government changes regarding the Haybarn Pump Station controls (R4, tab 34). On July 8, 2020, the Navy’s contracting officer denied Filanc’s certified claim for these costs (R4, tab 37). On July 20, 2020, Filanc appealed that decision to this Board (ASBCA No. 62616). As part of discovery in these appeals, Filanc served the Navy with 212 interrogatories and 247 requests for admission on November 25, 2020 (gov’t mot. for protective order, ex. 1 – Filanc’s Original Interrogs.; ex. 2 – Filanc’s Original Req. for Admission). On December 8, 2020, the Navy moved for a protective order, arguing that Filanc should be limited to 25 interrogatories (consistent with Fed. R. Civ. P. 33) and 25 requests for admission. (Gov’t mot. for protective order at 6) On January 14, 2021, the Board ordered that neither party could serve more than 40 interrogatories and 50 requests for admission. On January 29, 2021, Filanc served the Navy with 40 interrogatories and 50 requests for admission, reaching the upper limit placed on those types of discovery by this Board’s January 14, 2021 Order (app. mot., ex. 1 – Filanc’s Revised Interrogs.; ex. 2 – Filanc’s Revised Req.