In the United States Court of Federal Claims
No. 17-903C
(E-Filed: March 15, 2019)
)
NORTH AMERICAN ) Contract; Contract Disputes Act of
LANDSCAPING, ) 1978, 41 U.S.C. §§ 7101-7109
CONSTRUCTION AND DREDGE ) (2012); Dredging Contract;
COMPANY, INC., ) Differing Site Condition Claim;
) Superior Knowledge Claim; Barge
Plaintiff, ) Traffic Delay Claim; Severe
) Weather Delay Claim; Completion
v. ) Survey Delay Claim; Return of
) Liquidated Damages Claim;
THE UNITED STATES, ) Equitable Adjustment Claim;
) Re-dredged Quantity Costs Claim;
Defendant. ) Summary Judgment; RCFC 56.
)
Joseph L. Katz, Columbia, MD, for plaintiff.
Daniel B. Volk, Trial Attorney, with whom were Joseph H. Hunt, Assistant
Attorney General, Robert E. Kirschman, Jr., Director, and Elizabeth M. Hosford,
Assistant Director, Commercial Litigation Branch, Civil Division, United States
Department of Justice, Washington, DC, for defendant. Mark R. Higgins, United
States Army Corps of Engineers, Norfolk, VA, of counsel.
OPINION
CAMPBELL-SMITH, Judge.
This matter is before the court on defendant’s motion for summary
judgment, ECF No. 11, and plaintiff’s cross-motion for summary judgment, ECF
No. 18, filed pursuant to Rule 56 of the Rules of the United States Court of
Federal Claims (RCFC). Defendant filed a response/reply brief, ECF No. 21, and
plaintiff filed a reply brief, ECF No. 22. Both parties filed exhibits in support of
their motions: (1) defendant’s appendix is found at ECF Nos. 11-2, 12-1, and 12-
2; (2) plaintiff’s exhibits are found at ECF Nos. 18-1 through 18-4; and, (3) a
declaration filed in support of defendant’s response/reply brief is found at ECF
No. 21-1.
The parties’ motions address liability, not damages, deferring any discovery
regarding damages until the question of the liability of the government has been
addressed by the court. See ECF No. 9 at 2 (joint motion describing the
government’s motion as a motion for summary judgment, and plaintiff’s motion as
a “cross-motion for partial summary judgment as to liability”). This matter is fully
briefed and ripe for decision. For the reasons set forth below, defendant’s motion
for summary judgment is GRANTED in part and DENIED in part, and
plaintiff’s cross-motion is DENIED.
I. Background 1
The contract at issue here was awarded after sealed bids were received in
response to Solicitation No. W91236-15-B-0009, for maintenance dredging of
Hoskins Creek, Tappahannock, VA. ECF No. 12-1 at 68. This procurement was a
firm, fixed price contract opportunity set aside for small businesses. Id. at 66, 68,
77. The solicitation was issued by the United States Army Corps of Engineers,
Norfolk District (Corps). Id. at 66. The contract, W91236-15-C-0038, was
awarded to plaintiff North American Landscaping, Construction and Dredge
Company, Inc. (NALCO). ECF No. 1 at 2 (complaint). Several provisions of the
solicitation and resulting contract are of relevance to plaintiff’s claims.
Most importantly, the contract provisions which discussed boat traffic on
the navigable waterway also required the contractor to obstruct the passage of
boats and barges as little as possible, and to stop dredging when necessary to allow
the passage of such vessels. See ECF No. 12-1 at 330 (“The Contractor shall
expect that the [shallow draft fishing vessels, pleasure craft, tugs, grain barges, and
various other small crafts] traffic will cause periodic delays and interruptions of
his operations.”); id. (“The Contractor will be required to conduct the work in such
manner as to obstruct navigation as little as possible, and in case the Contractors’
plant so obstructs the channel as to make difficult or endanger the passage of
vessels, said plant shall be promptly moved on the approach of any vessel to such
an extent as may be necessary to afford a practicable passage.”).
Further, the solicitation predicted that the project would take less than 30
days to complete. Id. at 74. The contract duration, however, was set at 120
calendar days. Id. at 66, 68. The contract documents signed by NALCO required
the work to be completed within 120 days of the issuance of the Notice to Proceed,
which in this case was effective on June 4, 2015. Id. at 362, 394. Thus, NALCO
was on notice that the deadline for contract completion was set for October 2,
1
The facts recounted here are taken from the parties’ exhibits. The facts
supporting the parties’ arguments are mostly undisputed, because the parties’
briefing focuses primarily on legal disputes, not factual disputes.
2
2015. Id. at 394. The solicitation, and the contract, contained a liquidated
damages clause which specified that the contractor would pay the government
$300 per day for each day beyond the completion deadline that the contract work
was not “completed or accepted.” Id. at 97, 378.
Bidders were encouraged “to visit the site of the work in order to acquaint
themselves as to site conditions and other problems incident to the prosecution of
the work.” Id. at 71. At least one bidder visited the site of Hoskins Creek and
submitted a question to the Corps about the project based on that site visit. Id. at
346-47. NALCO’s president avers that he visited the site “several times” before
submitting NALCO’s bid. ECF No. 18-1 at 2. Among the standard contract
clauses included in the solicitation was the Site Investigation and Conditions
Affecting the Work clause, 48 C.F.R. § 52.236-3 (2017). ECF No. 12-1 at 88.
When NALCO submitted its bid, there was some hesitation among Corps
personnel who were not certain that NALCO was capable of completing the
contract work. See, e.g., id. at 356 (“I do not feel they have answered the [Pre-
Award Survey] questions and provided sufficient detail to make a decision as to
whether or not they are a responsi[ble] bidder.”). One specific concern was the
technology proposed by NALCO:
In reviewing the capability of [NALCO’s proposed] Ellicott dredge
670, it does not appear to have the performance characteristics to
complete this work. Went to the Ellicott Dredges website and found
the performance curve for this dredge. For fine sand, silts, and clays
(not clay balls) at 12,000 feet pumping distance, the theoretical
production rate from the manufacturer’s literature is 100 cubic yards
per hour; most efficient pumping rate (no or short distance) is about
600 cubic yards per hour. At 12,000 feet of pumping distance, they
would be operating at a very poor efficiency.
Our project conditions are 13,000 feet AND a static head of 45 feet,
outside the parameters of the manufacturer’s literature. I think it is
reasonable to ask how the Contractor intends to be successful with
these less than marginal conditions.
Id. at 358.
Other concerns were NALCO’s ability to perform the contract work within
the scheduled timeframe, and whether the final phase of the project would prove to
be too challenging for NALCO:
3
Still will be monitoring schedule and production very closely, as this
seems to be the challenge for them on several others Federal dredging
projects.
In particular, I believe the challenge will be those longer dredging
pipeline distances when they are working on the outer reach of the
project. With that stated, they will likely start at the beginning of the
navigation project, pipeline distance will be shortest.
Id. at 360. After meeting with NALCO to gather further information as to
NALCO’s plan for the contract work, the Corps concluded that NALCO could
complete the project:
I think the meeting went well. NALCO understands the [projects’]
requirement . . . , have a plan for working both [upcoming projects], and do
not have any other projects ongoing that might have an adverse affect of their
performance. They stated they plan to dredged 400 [cubic yards per hour 2],
and will bring in a booster if they fall behind schedule. . . .
I feel comfortable moving forward with the award of Hoskins . . . .
Id. at 360-61; see also ECF No. 1-2 at 2 (noting that the Corps’ concerns were
resolved, resulting in “an affirmative responsibility determination”). As noted
above, the Notice to Proceed was effective on June 4, 2015, and NALCO,
pursuant to the contract’s terms, was required to complete the project by October
2, 2015.
As detailed in defendant’s appendix, NALCO quickly fell behind its
proposed dredging schedule. ECF No. 12-1 at 402-04, 411, 414-15. By August
6, 2015, the Corps contemplated sending NALCO a Cure Notice regarding
unsatisfactory contract performance. Id. at 415-17. The dredge did not start
operations until August 10 or 11, 2015, and its operation was sporadic at first. Id.
at 419-23, 426; ECF No. 18-1 at 4.
There were also a number of required contract tasks, and documentation
related to those tasks, that were not being completed to the Corps’ satisfaction.
ECF No. 12-1 at 401, 418, 424-25. Further, the Corps described NALCO’s
dredging equipment as a hindrance to navigation. Id. at 420, 422-24. The Corps’
2
Although the passage cited stated “400Cy a day,” an email sent ten minutes
later corrected that statement to “400 CY per hour, instead of day.” ECF No. 12-1
at 360.
4
inspector commented that NALCO’s dredging operation showed that NALCO
“has little knowledge of how to appropriately operate the dredge.” Id. at 423.
On August 20, 2015, the contracting officer (CO) sent a letter to NALCO
that pointed out deficiencies in contract performance, with a primary focus on
NALCO’s failure to make progress on the dredging work; the CO reminded
NALCO that an assessment of liquidated damages was likely if the project was not
completed by October 2, 2015. Id. at 426-27. On August 25, 2015, NALCO
responded to the CO’s letter, and pointed out that barge traffic was slowing down
the dredging work, but that the dredge would be out of this zone of barge traffic
“in a day or two.” Id. at 428. Internally, the Corps noted that NALCO’s rate of
progress was so slow that project completion by the October 2, 2015 deadline was
unlikely. Id. at 431-33. The Corps began to consider involving NALCO’s surety
for the completion of contract work, and also considered a termination for default
of the contract. Id. at 433.
The Corps addressed NALCO’s performance issues again in September
2015. First, the Corps logged an “unsatisfactory” rating for NALCO’s interim
contract performance on the Contractor Performance Assessment Reporting
System (CPARS) and sent a copy of that evaluation to NALCO on September 14,
2015. Id. at 440-42, 444. Second, the CO sent a formal Cure Notice to NALCO
on September 22, 2015, and sent a copy of the letter to NALCO’s surety. Id. at
450-51. NALCO responded on September 28, 2015, asserting that barge traffic
was causing delays and also was causing the newly-dredged channel to fill back in
with material disturbed by the barges. Id. at 452-53. NALCO acknowledged that
completion of work by October 2, 2015, was “most likely” not going to occur. Id.
at 452.
In mid-September, one of the contracting officials for the Corps shared the
following assessment with his colleagues:
We intend to get the surety involved, as opposed to actually [terminate
for default] if possible.
It’s hard not to like these guys, they work hard but they have no
method, and don’t have a plan to recover. Meanwhile their cost of
operations will eventually overtake what they are making on this -
they are moving very slowly. Barge traffic was maybe one a week. It
picks up this week to one a day. Barge traffic is their chief complaint.
This shows they simply don’t have the skills needed.
Id. at 444.
5
NALCO, NALCO’s counsel, NALCO’s surety and the Corps met and
conducted a site visit of the project on October 14, 2015. Id. at 460. The Corps
described the purpose of this meeting as an opportunity for the surety to decide
whether to take over the contract with a different contractor, or to keep NALCO in
place. Id. One of the main concerns of the Corps at this time, and going forward,
was that the channel where NALCO had already dredged, in some sections, was
not proving to be free of material to the depth required in the contract. Id.
Late in October, NALCO was still performing contract work, and was
meeting milestones established by a revised schedule. Id. at 462. The Corps
conducted numerous surveys of the channel depth and ordered re-dredging of
sections that were not deep enough. Id. at 437-39, 441, 443, 450, 454-57, 460,
463, 465, 468-71. As of November 10, 2015, the Corps had not accepted the work
as complete, and notified NALCO that liquidated damages would be assessed. Id.
at 472. Internally, the Corps agreed that re-dredging needed to continue. Id. at
473-74. On November 13, 2015, NALCO was directed to continue re-dredging,
over NALCO’s objections that the channel depth problems occurred through no
fault of NALCO. Id. at 476.
On December 4, 2015, after considerable re-dredging efforts by NALCO,
the channel depth was re-surveyed. Id. at 483-86. On December 9, 2015, the
Corps agreed that the work was essentially complete, and accepted the project
work. Id. at 487-88. NALCO was assessed $17,700 in liquidated damages for 59
days of performance after October 2, 2015, through November 30, 2015. Id. at 55;
see also ECF No. 1 at 7; ECF No. 11 at 3.
NALCO filed a certified claim with the CO on March 11, 2016. ECF No.
1-1 at 1-35; ECF No. 12-1 at 6-40. The claim was for an equitable adjustment of
the contract price in the amount of $288,025.97; the claim also included a request
for a time extension of 91.85 days for contract performance. ECF No. 12-1 at
11-12. The certified claim was denied in its entirety by the CO on July 5, 2016.
ECF No. 1-2 at 1-25; ECF No. 12-1 at 41-65. The court discusses the elements of
NALCO’s claim, and the CO’s denial of the claim, in the analysis section of this
opinion.
II. Standard of Review on Summary Judgment
“[S]ummary judgment is a salutary method of disposition designed to
secure the just, speedy and inexpensive determination of every action.” Sweats
Fashions, Inc. v. Pannill Knitting Co., 833 F.2d 1560, 1562 (Fed. Cir. 1987)
(internal quotations and citations omitted). The party moving for summary
judgment will prevail “if the movant shows that there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a matter of law.”
6
RCFC 56(a). A genuine dispute of material fact is one that could “affect the
outcome” of the litigation. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). “[A]ll evidence must be viewed in the light most favorable to the
nonmoving party, and all reasonable factual inferences should be drawn in favor
of the nonmoving party.” Dairyland Power Coop. v. United States, 16 F.3d 1197,
1202 (Fed. Cir. 1994) (citations omitted). With respect to cross-motions for
summary judgment, “the court must evaluate each party’s motion on its own
merits, taking care in each instance to draw all reasonable inferences against the
party whose motion is under consideration.” Mingus Constructors, Inc. v. United
States, 812 F.2d 1387, 1391 (Fed. Cir. 1987) (citation omitted).
A summary judgment motion is properly granted against a party who fails
to make a showing sufficient to establish the existence of an essential element to
that party’s case and for which that party bears the burden of proof at trial.
Celotex Corp. v. Catrett, 477 U.S. 317, 322-24 (1986). A nonmovant will not
defeat a motion for summary judgment “unless there is sufficient evidence
favoring the nonmoving party for a jury to return a verdict for that party.”
Anderson, 477 U.S. at 249 (citation omitted). “A nonmoving party’s failure of
proof concerning the existence of an element essential to its case on which the
nonmoving party will bear the burden of proof at trial necessarily renders all other
facts immaterial and entitles the moving party to summary judgment as a matter of
law.” Dairyland Power, 16 F.3d at 1202 (citing Celotex, 477 U.S. at 323).
III. Analysis
A. Burden of Proof
The bulk of plaintiff’s claim for an equitable adjustment of the contract
price is founded, directly or indirectly, on two types of excusable delay. ECF No.
1-1 at 3-11. In such circumstances, “the contractor has the burden of proving the
extent of the delay, that the delay was proximately caused by government action,
and that the delay harmed the contractor.” Wilner v. United States, 24 F.3d 1397,
1401 (Fed. Cir. 1994).
Another separate and distinct portion of plaintiff’s claim depends, again, on
excusable delay, where plaintiff seeks the return of assessed liquidated damages.
ECF No. 1-1 at 11. To recover on this portion of the claim, which relies on three
types of excusable delay, id. at 6, plaintiff again bears the burden of proof. See
Sauer Inc. v. Danzig, 224 F.3d 1340, 1347 (Fed. Cir. 2000) (“As a general rule, a
party asserting that liquidated damages were improperly assessed bears the burden
of showing the extent of the excusable delay to which it is entitled.”) (citations
omitted).
7
The only portion of plaintiff’s claim that is not related to excusable delay is
the equitable adjustment sought for a cost item labeled “Re-dredged Quantity,”
ECF No. 18 at 10, which also is referred to as the “uncredited dredge quantity [of]
6391 cubic yards,” ECF No. 1-1 at 10. Here, too, plaintiff bears the burden of
proof. See Servidone Constr. Corp. v. United States, 931 F.2d 860, 861 (Fed. Cir.
1991) (“To receive an equitable adjustment from the Government, a contractor
must show three necessary elements--liability, causation, and resultant injury.”)
(citation omitted).
B. Delay Claim for Tug and Barge Traffic
In the largest of plaintiff’s delay claims, NALCO asserts that tug and barge
traffic (hereinafter, barge traffic) caused an excusable delay of 57.25 days past the
contract completion date of October 2, 2015. ECF No. 1 at 6. In its
communications with the Corps on this topic, the justification for this excusable
delay was first described as “inter alia, a changed condition, a differing site
condition, [and] a deficient specification.” ECF No. 1-1 at 14. To these theories
of entitlement NALCO later added a reference to the “superior knowledge
doctrine.” Id. at 4. The barge traffic delay claim was denied in its entirety by the
CO. ECF No. 1 at 10.
Plaintiff’s first three theories of entitlement to excusable delay rest on the
premise that the solicitation was inaccurate and misleading as to the frequency of
barge traffic. ECF No. 1-1 at 3-4. The “superior knowledge” theory presented by
plaintiff is somewhat similar, in that plaintiff contends that the solicitation was
misleading or deficient as to barge traffic information, but with this theory
plaintiff contends, in addition, that the Corps had a duty to disclose its superior
knowledge of barge traffic. Id. at 5. None of plaintiff’s theories of entitlement to
excusable delay has merit.
The court notes, at the outset, that plaintiff’s motion for summary judgment
relies principally on a Type I Differing Site Condition theory, ECF No. 18 at
17-20, with a secondary emphasis on the superior knowledge doctrine, id. at 20-
21. The court therefore will not discuss in this opinion any defective
specifications theory of entitlement, which was raised only in one sentence of
plaintiff’s reply brief, see ECF No. 22 at 2, unsupported by any reference to the
elements needed to prove a defective specifications claim. 3 Nor will the court
3
Any defective specification theory would fail as a matter of law for the
same reasons that plaintiff’s differing site condition theory cannot prevail. See
infra. Moreover, as the United States Court of Appeals for the Federal Circuit has
held, defective specifications claims are not distinct claims when the only alleged
8
discuss “changed conditions” or “constructive change” theories of entitlement,
since no authority was cited by plaintiff to support the cursory invocations of these
doctrines in plaintiff’s motion. 4 See ECF No. 18 at 1, 12, 21. The only other
legal theories addressed at any length by plaintiff to support its barge traffic delay
claim are the linked concepts of patent ambiguities, latent ambiguities, and the
principle of contra proferentem. Id. at 12-16.
For its analysis, the court first addresses plaintiff’s Type I Differing Site
Condition delay claim, ECF No. 18 at 19, and, in this context, also discusses
plaintiff’s assertions as to alleged ambiguities in the solicitation, id. at 13. The
court then turns to plaintiff’s reliance on the doctrine of superior knowledge. Id. at
20. As a threshold matter, however, the court begins with a review of the
solicitation language that underlies NALCO’s barge traffic delay claim.
The solicitation and contract address barge traffic, and the topic of
performance delays that a contractor might experience as a result of such traffic.
First, the contract discussed the relationship between traffic on Hoskins Creek and
the dredging work:
Obstruction of Channel
The Government will not undertake to keep the area of channels free from
vessels or other obstructions, except to the extent of such regulations, if
any, as may be prescribed by the Secretary of the Army, in accordance with
the provisions of Section 7 of the River and Harbor Act, approved 3 August
1917. The Contractor will be required to conduct the work in such manner
as to obstruct navigation as little as possible, and in case the Contractors’
plant so obstructs the channel as to make difficult or endanger the passage
of vessels, said plant shall be promptly moved on the approach of any
vessel to such an extent as may be necessary to afford a practicable
passage. Upon the completion of the work, the Contractor shall promptly
remove his plant, including ranges, buoys, piles, and other marks placed by
him under this contract in navigable water or on shore.
defect is the failure to disclose a differing site condition. Comtrol, Inc. v. United
States, 294 F.3d 1357, 1362 (Fed. Cir. 2002).
4
The court has considered all of plaintiff’s arguments that attempt to justify
its barge traffic delay claim for 57.25 days of excusable delay, and associated
extended performance costs, but finds that this claim fails as a matter of law.
9
ECF No. 12-1 at 330. According to this provision, two directives are clear and
unambiguous. NALCO was required to set up its dredging operation to “obstruct
navigation as little as possible.” Id. In addition, NALCO would be required to
move its equipment aside “to such an extent as may be necessary to afford a
practicable passage” to traffic on Hoskins Creek. Id.
The second relevant contract provision specifically addresses traffic on
Hoskins Creek:
Channel Traffic
The vessel traffic to be encountered during dredging and placement
operations will usually include shallow draft fishing vessels, pleasure
craft, tugs, grain barges, and various other small crafts. The
Contractor shall expect that the traffic will cause periodic delays and
interruptions of his operations.
Id. Thus, NALCO was given a description of the vessels “usually” encountered
on Hoskins Creek, including tugs and grain barges, and was informed that such
traffic would cause “periodic delays and interruptions” of dredging operations. Id.
1. No Differing Site Condition as to Channel Traffic or Periodic
Delays, and No Ambiguity in These Contract Terms
Plaintiff argues either that the term “periodic delays” has a different
meaning than the site condition NALCO encountered on Hoskins Creek, or that
the term “periodic delays” is ambiguous and must be construed against the drafter
of the contract. Neither of these arguments is supported by the contract language
or the undisputed facts in the record before the court. To summarize plaintiff’s
differing site condition claim, plaintiff asserts, first, that barge traffic occurred
daily, or near-daily, during certain periods of contract performance. ECF No. 1 at
4; ECF No. 18 at 6, 12. According to plaintiff, the solicitation represented that
any dredging delays related to barge traffic would be much less frequent than
those caused by daily, or near-daily, barge traffic. ECF No. 18 at 6, 19.
There are significant flaws in plaintiff’s differing site condition claim.
First, plaintiff conflates the frequency of barge traffic with the frequency of delays
related to barge traffic, and merges these two concepts when plaintiff construes the
meaning of the contract term “periodic.” See, e.g., ECF No. 18 at 19, 21
(contrasting the solicitation term “periodic delays” with descriptions of the alleged
differing site condition, such as “daily and near-daily [dredging] delays,”
“frequency of channel traffic,” “frequency of barge traffic,” “daily/near-daily grain
barge traffic,” and “daily barge traffic”).
10
The frequency of barge traffic, and the frequency of delays related to barge
traffic, are distinct concepts, as defendant points out:
NALCO reads the contract as having “indicat[ed] that . . . barge traffic
would . . . be ‘periodic,’” [ECF No. 18 at 21], but that is not what the
contract says. “Periodic” referred not to the passage of vessels, but
rather to “delays and interruptions of [the contractor’s] operations.”
[ECF No. 12-1 at 330]. The Corps was in no position to specify the
extent to which vessel traffic would actually delay a contractor’s
operations because that is dependent on the contractor’s chosen means
and methods. See, e.g., [ECF No. 12-2 at 351-53].
ECF No. 21 at 3. To the extent that defendant’s commentary is based on the plain
text of the solicitation, the court agrees. The only use of the term periodic in the
Channel Traffic provision of the contract is to describe “delays and interruptions,”
not the occurrence of barge traffic itself.
Further, even if there were a rough equivalence between barge traffic and
dredging delays caused by barge traffic, the contract language does not specify the
frequency of barge traffic. The term periodic does not mean infrequent, and does
not represent that barge traffic will occur less frequently than daily, or near-daily,
when the contract work is being performed. Because the contract does not contain
a representation as to the frequency of barge traffic, there can be no successful
differing site condition claim based on daily, or near-daily, barge traffic, or the
delays caused by daily, or near-daily, barge traffic. 5 Plaintiff’s argument that the
Corps “made a representation of the frequency of barge traffic,” ECF No. 18 at 19,
is simply not supported by the contract language.
To prevail on a Type I Differing Site Condition claim, a contractor must
prove “that the conditions indicated in the contract differ materially from those it
encounters during performance.” Randa/Madison Joint Venture III v. Dahlberg,
239 F.3d 1264, 1274 (Fed. Cir. 2001) (citation and internal quotations omitted).
None of the barge traffic or dredging delays related to barge traffic conditions
5
Although plaintiff attempts to buttress its differing site condition argument
by referencing the use of the word “periodic” in other provisions set forth in the
contract, the court finds no persuasiveness in this argument. ECF No. 18 at 7-8,
16-17. Periodic is an adjective that can vary widely with context – periodic, by
itself, does not specify temporal frequency. See ECF No. 11 at 4 (stating that “the
word ‘periodic’ does not create a representation as to frequency” (citing ECF No.
12-1 at 56)).
11
indicated in the contract are specific enough to indicate that the conditions
encountered by NALCO are materially different from those indicated in the
contract. According all favorable inferences to plaintiff’s assertions as to the
frequency of barge traffic and delays caused by barge traffic, plaintiff’s differing
site condition claim fails as a matter of law.
The court turns now to plaintiff’s contentions that the term “periodic
delays” is inherently ambiguous, that the ambiguity in this term is latent, and, thus,
that the court must apply the doctrine of contra proferentem against the Corps in
its interpretation of this contract term. ECF No. 18 at 12-16. Unfortunately for
plaintiff, the court agrees with defendant that “there is no ambiguity to resolve[,]
. . . [because] NALCO is simply interpreting the contract in a manner that reads a
representation regarding barge passage frequency into contract language that lacks
any such representation.” ECF No. 21 at 2-3. Plaintiff’s reliance on the doctrine
of contra proferentem has no merit where there is no ambiguity in the relevant
contract term. Plaintiff’s barge traffic delay claim cannot be salvaged by the
doctrine of contra proferentem, which is inapplicable to this contract provision.
Finally, NALCO argues that its reasonable interpretation of the Channel
Traffic provision, and its reliance on that interpretation in formulating its work
plan and bid, demonstrate the validity of NALCO’s barge traffic delay claim.
ECF No. 18 at 8, 17; ECF No. 22 at 3. However, the court finds that NALCO’s
interpretation of that contract provision is a subjective interpretation, not an
objective interpretation, of an unambiguous contract term. NALCO’s subjective
interpretation of the contract, that barge traffic and delays caused by barge traffic
would likely occur “to the tune of approximately once a week,” ECF No. 22 at 3,
does not determine the rights of the parties to this contract. “Where a contract is
not ambiguous, the wording of the contract controls its meaning and resort cannot
be had to extraneous circumstances or subjective interpretations to determine such
meaning.” Perry & Wallis, Inc. v. United States, 427 F.2d 722, 725 (Ct. Cl. 1970)
(citing Duhame v. United States, 119 F. Supp. 192, 195 (Ct. Cl. 1954)). Here, the
contract made no representation as to the frequency of barge traffic, or the
frequency of delays caused by barge traffic, and was unambiguous in this regard.
For these reasons, plaintiff’s differing site condition claim as to barge traffic
delays fails as a matter of law.
2. Superior Knowledge Doctrine
There is no real dispute that the Corps possessed superior knowledge,
compared to NALCO, of the barge traffic on Hoskins Creek. The dispute here is
whether the Corps “misled NALCO into estimating a once weekly delay on
account of passing barge traffic, and not a daily or near-daily occurrence,” so as to
support a breach of contract claim based on the doctrine of superior knowledge.
12
ECF No. 22 at 4. The authorities cited by the parties and the evidence of record
show that the contract language in this instance was not misleading, that the Corps
did not breach an implied duty to reveal vital information, and that plaintiff’s
superior knowledge theory of entitlement to 57.25 days of excusable delay is
without merit as a matter of law.
“The superior knowledge doctrine imposes upon a contracting agency an
implied duty to disclose to a contractor otherwise unavailable information
regarding some novel matter affecting the contract that is vital to its performance.”
Giesler v. United States, 232 F.3d 864, 876 (Fed. Cir. 2000). Four elements of
proof are required to obtain relief on such a contract claim:
(1) a contractor undertook to perform without vital knowledge of a
fact that affects performance costs or duration; (2) the government
was aware the contractor had no knowledge of and had no reason to
obtain such information; (3) any contract specification supplied
misled the contractor or did not put it on notice to inquire; and (4) the
government failed to provide the relevant information.
Id. (citing Hercules Inc. v. United States, 24 F.3d 188, 196 (Fed. Cir. 1994)). The
record before the court could possibly support the first and fourth elements noted
in Giesler. According all favorable inferences to NALCO, it does appear that
NALCO was not aware of the frequency of barge traffic on Hoskins Creek, and
the Corps does not appear to have provided this information to NALCO before the
contract was signed.
The second and third elements cited in Giesler, however, are not satisfied in
this case. Plaintiff has made no showing that the Corps was aware that NALCO
was unaware of the frequency of barge traffic on Hoskins Creek. 6 Because
plaintiff bears the burden of proof to establish its barge traffic delay claim, its
failure to adduce any evidence on the second element of proof is fatal to its
superior knowledge claim.
6
The summary judgment brief filed by plaintiff does not point to any
evidence that would satisfy this element of a superior knowledge claim. The
declaration of NALCO’s president also does not address this topic. See ECF No.
18-1. The complaint contains a conclusory assertion that addresses the second
element of proof for a superior knowledge claim, ECF No. 1 at 6, but a bare
assertion of this nature is not sufficient to defeat the government’s motion for
summary judgment. See, e.g., Barmag Barmer Maschinenfabrik AG v. Murata
Mach., Ltd., 731 F.2d 831, 836 (Fed. Cir. 1984) (stating that “[m]ere denials or
conclusory statements are insufficient” to defeat a motion for summary judgment).
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More importantly, barge traffic, and periodic performance delays due to
channel traffic, were noted in the solicitation. ECF No. 12-1 at 330. Further,
NALCO was on notice that it had a duty to inquire as to the conditions of
performance, and NALCO was expressly invited by the solicitation to investigate
the conditions at Hoskins Creek. Id. at 71, 88. In addition, there was no
misleading representation in the solicitation regarding the frequency of barge
traffic, or the frequency of delays likely to be caused by barge traffic. Id. at 330.
In light of these undisputed facts, plaintiff cannot satisfy the third element of proof
to establish a superior knowledge claim for breach of contract. Because the
solicitation provisions did not mislead NALCO, and because the solicitation put
NALCO on notice to inquire as to conditions of performance, plaintiff cannot, as a
matter of law, establish a breach of contract claim under the superior knowledge
doctrine.
For all of the above reasons, plaintiff’s barge traffic delay claim, asserting
57.25 days of excusable delay, fails as a matter of law. No reduction in liquidated
damages is due plaintiff for barge traffic delays. Nor are any equitable
adjustments of the contract price related to delays attributed to barge traffic due
plaintiff, as a matter of law. Defendant’s motion for summary judgment is granted
as to these portions of plaintiff’s claim.
C. Delay Claim (Time Extension Only) for Unusually Severe Weather
Plaintiff’s weather-related time extension request, for 22.6 days past the
contract completion date of October 2, 2015, was denied in its entirety by the CO.
ECF No. 1 at 6, 10. The contract incorporated a clause, Federal Acquisition
Regulation (FAR) 52.249-10, 48 C.F.R. § 52.249-10 (2017) (Default (Fixed-Price
Construction)), among its standard contract clauses. ECF No. 12-1 at 89. That
FAR provision requires that claims for time extensions due to “unusually severe
weather” be submitted within 10 days of the weather event; otherwise, the
excusable delay request will be inoperative to reduce the liquidated damages
charged the contractor. See FAR 52.249-10(b) (stating that the contractor will not
be charged liquidated damages if the “Contractor, within 10 days from the
beginning of any delay (unless extended by the Contracting Officer), notifies the
Contracting Officer in writing of the causes of delay”). It is undisputed that
NALCO’s weather-related delay claim was presented to the CO on March 16,
2016, and that liquidated damages were charged for the period of time from
October 3, 2015, through November 30, 2015. ECF No. 12-1 at 6, 11, 55; see also
ECF No. 1 at 7; ECF No. 11 at 3.
Plaintiff’s certified claim does not, at least in its narrative, specify the
actual days of unusually severe weather that justified the 22.6 days of excusable
delay requested. ECF No. 1-1 at 6. The CO found that the records submitted by
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NALCO were insufficient to support the claim, particularly when these records
were compared with weather records for times the dredge was operating. ECF No.
1-2 at 20. More importantly, however, the CO concluded that the claim was
time-barred, because it was submitted 100 days after work was completed, not
within ten days of the beginning of any weather event. Id.
In defendant’s motion for summary judgment, the government argues that
plaintiff’s request for a time extension founded on unusually severe weather is
foreclosed, as untimely, pursuant to FAR 52.249-10(b)(2). ECF No. 11 at 6.
Plaintiff’s cross-motion and reply brief do not address defendant’s argument
founded on FAR 52.249-10. The court concludes that plaintiff’s weather-related
excusable delay claim is time-barred. See, e.g., R.P. Wallace, Inc. v. United
States, 63 Fed. Cl. 402, 417 (2004) (stating that “plaintiff’s failure to provide
proper notice as to the delays being encountered in fabricating and installing the
windows provides a second, independent basis upon which to deny any further
excusable delay for these phases of the project” (citing Decker & Co. v. West, 76
F.3d 1573, 1581 (Fed. Cir. 1996); FAR 52.249-10)).
No reduction in liquidated damages is due plaintiff for unusually severe
weather, as a matter of law. Defendant’s motion for summary judgment is granted
as to this portion of plaintiff’s claim.
D. Delay Claim for Timing of Government Survey of Completed Work
Plaintiff’s “survey delay” time extension request, for 12 days past the
contract completion date of October 2, 2015, was denied in its entirety by the CO.
ECF No. 1 at 6, 10. As argued in NALCO’s certified claim,
NALCO remained on standby from the period of November 3 through
November 14, 2015, awaiting further direction from the Corps as to
the completion of the Project. Accordingly, NALCO respectfully
requests a further time extension of twelve (12) days on account of
the said survey delays.
ECF No. 1-1 at 6 (footnote omitted). The CO’s decision examined the contract
provisions relevant to the timing of the completion survey and found no fault of
the government in the timing of the survey. ECF No. 1-2 at 20-21.
As the government explains in its motion for summary judgment, NALCO
failed to provide the minimum 14 days advance notice between its request for a
completion survey and the proposed date for the completion of work (and the date
for the government’s completion survey). ECF No. 11 at 6-7. The undisputed
facts show that the survey was performed within the 14-day period provided by
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the contract. Id. at 7; see also ECF No. 1-2 at 20-21 (noting that both the
completion of the survey work, and the delivery of the survey to NALCO,
occurred within the 14-day time frame). Plaintiff’s cross-motion and reply brief
do not address defendant’s argument founded on the contract provisions governing
the completion survey.
Plaintiff has failed to establish a genuine dispute of material fact as to the
timeliness of the completion survey. No reduction in liquidated damages is due
plaintiff for delays in the survey of completed dredging work, as a matter of law.
Nor are any equitable adjustments of the contract price for delays attributed to the
surveying of contract work due plaintiff, as a matter of law. Defendant’s motion
for summary judgment is granted as to these portions of plaintiff’s claim.
E. Re-dredged Quantity Costs Claim
Plaintiff seeks $19,173 for the quantity of material removed from the
channel before the Corps directed NALCO to re-dredge certain portions of
Hoskins Creek. ECF No. 18 at 9. According to plaintiff, NALCO was not
credited with 6391 cubic yards of dredged material that should have been paid at
$3 per cubic yard. Id. The factual basis for the claim is that depths of the channel
that were cleared, by the first pass of the dredge, were allegedly filled in later by
the passage of tugs and barges. Id.; see also ECF No. 18-1 at 6-7.
Defendant disputes the facts underlying plaintiff’s re-dredged quantity
claim. ECF No. 11 at 8; ECF No. 21 at 9. Plaintiff counters that there is at least a
genuine dispute of material fact as to this claim. ECF No. 18 at 21; ECF No. 22 at
4. Viewing the evidence in the light most favorable to NALCO, and according all
reasonable factual inferences to NALCO, a genuine dispute of material fact exists
as to defendant’s liability for this claim. Dairyland Power, 16 F.3d at 1202.
Similarly, viewing the evidence in the light most favorable to defendant, a genuine
dispute of material fact exists as to the government’s liability for this claim. Thus,
plaintiff’s re-dredged quantity costs claim is the only claim in this suit that
survives the court’s resolution of the parties’ motions for summary judgment.
IV. Conclusion
Having considered the undisputed facts and all of the parties’ arguments,
the court concludes that plaintiff has failed to meet its burden to show the
government’s liability for any of its excusable delay-related claims, either for the
return of liquidated damages, or for equitable adjustments to the contract price.
Plaintiff has also failed to show the government’s liability, as a matter of law, for
its re-dredged quantity costs claim. The government has shown that it is entitled
to summary judgment on the majority of plaintiff’s claims, including the entirety
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of the return of liquidated damages claim, and most of plaintiff’s equitable
adjustment claims. However, a genuine dispute of material fact prevents
defendant from receiving summary judgment on the portion of plaintiff’s equitable
adjustment claim, in the amount of $19,173, for re-dredged quantity costs.
Accordingly, defendant’s motion for summary judgment as to liability,
ECF No. 11, is DENIED in part, as to the portion of plaintiff’s equitable
adjustment claim, in the amount of $19,173, for re-dredged quantity costs, and
GRANTED in part, as to all other components of plaintiff’s claim before this
court. Plaintiff’s motion for summary judgment as to liability, ECF No. 18, is
DENIED. Because the remaining claim in dispute in this suit is relatively small in
monetary value, the parties are urged to consider alternative dispute resolution
(ADR), or other means of settlement. On or before April 12, 2019, the parties are
directed to FILE a joint status report proposing the next steps in this litigation.
IT IS SO ORDERED.
s/Patricia E. Campbell-Smith
PATRICIA E. CAMPBELL-SMITH
Judge
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