Burnham Associates, Inc. ( 2017 )

ARMED SERVICES BOARD OF CONTRACT APPEALS
Appeal of -- )
)
Burnham Associates, Inc. ) ASBCA No. 60780)
Under Contract No. W912WJ-12-C-0009 )
APPEARANCE FOR THE APPELLANT: John D. Fitzpatrick, Esq.
Pingitore & Fitzpatrick, LLC
Cambridge, MA
APPEARANCES FOR THE GOVERNMENT: Thomas J. Warren, Esq.
Acting Engineer Chief Trial Attorney
Theresa A. Negron, Esq.
Engineer Trial Attorney
U.S. Army Engineer District, New England
OPINION BY ADMINISTRATIVE JUDGE O'CONNELL
This appeal arises from a contract to perform dredging in Boston Harbor.
Burnham Associates, Inc. (Burnham) submitted a certified claim seeking additional
money on two issues: $334,464 due to the government's use of a previously undisclosed
pre-dredge survey to calculate final quantities; and $70,144.94 due to delays caused by
shipping traffic in the harbor. The parties have both filed motions for summary judgment
and briefs supporting their respective positions. Upon discussion with the Board
regarding whether material facts were in dispute, the parties agreed to submit this appeal
on the written record under Board Rule 11. The Board allowed the parties to file
supplemental briefs, Rule 4 supplements, or declarations. Only entitlement is before us.
We sustain the appeal as to the pre-dredge survey but deny it with respect to the shipping
traffic delays.
FINDINGS OF FACT
1. On 16 May 2012, the U.S. Army Corps of Engineers, New England District,
(Corps or USACE) issued a solicitation for a project entitled "Rock Removal, Boston
Harbor Boston, Massachusetts" (R4, tab 6 at 1). The contract subsequently incorporated
the solicitation (R4, tab 12 at 2).
Pre-Dredge Surveys
2. The Geotechnical Data section of the solicitation stated that a USACE
contractor had conducted "a bathymetric, geophysical and geotechnical investigation of
areas shown in the contract drawings from May-June 2010" (R4, tab 6 at 37). Somewhat
confusingly, however, the drawings indicated that they were based upon a hydrographic
survey conducted in March 2011 (id. at 170-71 ).
3. The Summary of Work section stated that seven areas of rock had been
identified "during the recent subsurface investigations of Boston Harbor" and that there
were about 525 cubic yards of material to be removed (R4, tab 6 at 43).
4. The Measurement and Payment section of the solicitation provided that
USACE would pay contract line item number (CLIN) 0002 (dredging and disposal of
rock) "by computing the volume between the bottom surface shown by soundings of the
last pre-dredge survey made before dredging begins and the bottom surface shown by
the soundings of a post-dredge survey made as soon as practicable after the removal of
the material" (R4, tab 6 at 50). The solicitation provided that the contractor would not
be paid for material dredged outside the defined areas (id. at 152); it refers to the
material eligible for payment as the "payable quantity" (id. at 127).
5. Depths in areas that have been dredged can change over time due to currents,
ship traffic stirring up the bottom, large tide fluctuations, and/or weather (R4, tab 38, ii 2
(supp. Preston decl.)). As a result, the Corps generally conducts a pre-dredge survey
within six months of the start of dredging (id. ii 12). Consistent with this practice, the
solicitation stated that another pre-dredge survey "may be performed by the Government
prior to the start of Contractor dredging operations at the dredging sites" (R4, tab 6 at
43-44). However, the Corps opted not to conduct a pre-award/pre-dredging
commencement survey (R4, tabs 9-10).
6. While the bidders only knew about the March 2011 and earlier surveys, the
Corps had, in fact, conducted a survey within the six-month pre-dredge window when it
issued the solicitation, namely, a hydrographic survey of the harbor conducted on 12,
14 and 15 March 2012 (R4, tabs 4, 30). The Corps conducted this survey in response to a
request from the Massachusetts Port Authority (Massport), which was aware of the
incomplete rock removal in the federally-maintained portion of the harbor channel and was
concerned that it might affect a tall ships/War of 1812 bicentennial event planned that
summer. Because the Corps conducted this survey in response to the request by Massport,
it did not at that time calculate volumes of material that could be dredged. (R4, tabs 3-5,
35 (Preston decl.) ii 5, supp. Preston decl. ii 13)
I 7. According to a declaration submitted by Jeffrey W. Preston, a Corps official
who at the time was engineering technical/crew chief, after the Corps performed the
March 2012 survey, a team of Corps employees "edited the data over the next month and
a half' (Preston decl. ii 3). The Corps had used new equipment on this latest survey so
Mr. Preston decided to perform what he referred to in his initial declaration as a "cross
check" with the results of the March 2011 survey by examining the highest pinnacle of
the rock outcrops. He found the results of the two surveys to be similar. (Id.) In his
supplemental declaration, Mr. Preston clarified that his comparison of the two surveys
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was a "quick map check" that "is in no way a reflection on the quantity of volume
available since it is only checking the individual peaks ... on the harbor bottom" (supp.
Preston decl. if 14 ).
8. While the record is clear up to this point, the question of "what did the Corps
know and when did it know it?" becomes less clear as we draw closer to the 16 July 2012
award date of the contract. In a motion for summary judgment filed in May 2017, the
government stated that in June 2012 it used the March 2012 survey as the pre-dredge
survey to calculate that there were only about 430 cubic yards of payable quantity (gov't
MSJ br. at 4, if 17 (citing R4, tabs 9-10), at 8, if 31 (citing R4, tab 20)). None of the
documents cited by the Corps, however, actually show that it performed this calculation in
June 2012.
9. In the government's most recent brief (Rule 11 brief), the government now states
that it did not perform the revised calculation of payable quantity until 8 August 2012 (that
is, 23 days after contract award) (gov't Rl 1 br. at 10 (citing R4, tabs 30, 38)). In support
of this revised assertion, the Corps cites testimony from Mr. Preston who relies on Rule 4,
tab 30 (supp. Preston decl. if 23). However, tab 30 is a summary table that does not specify
the date on which the Corps calculated the reduced quantity estimate.
10. According to Mr. Preston, surveys are conducted with modern depth sensors
(called multibeam sonar) which enable the surveyor to obtain raw depths, which are
recorded. For this data to become useful, erroneous depths caused by fish or bubbles
from a boat engine must be removed. The edited data can be broken down by laying a
grid over the work area, which for the 2011 survey was an area of one foot by one foot.
The Corps normally saves two types of electronic files as a result of this process: one
provides the minimum depth in each grid square, while the other provides the average
depth. (Supp. Preston decl. iii! 4-9)
11. To calculate volumes of material to be dredged, the Corps uses software
called MicroStation to create a template representing the desired dredge depth. In the
case of the March 2011 survey, it then compared the l' x 1' minimum depth grid squares
to the template. The software determines how many cubic yards of material must be
dredged to bring the area down to the desired depth. (Supp. Preston decl. iii! 10-11)
12. Although it is not entirely clear, we find with respect to the 2012 survey that
the Corps performed the survey, edited the survey data and created the minimum depth
grid squares in the March-April 2012 time period and that it calculated the estimated
volume of material to be dredged on 8 August 2012 (compare Preston decl. if 3 ("After the
survey was completed and data was collected, my team edited the data over the next
month and a half') with supp. Preston decl. if 13 ("No volumes were calculated
immediately after the survey"), if 23 ("On August 8, 2012, available volume for the 2012
government pre-dredge survey was calculated by the Corps.")). Thus, although
Mr. Preston's declaration contradicts the Corps' earlier position that it performed the
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calculations in June 2012 and is not supported by any contemporaneous evidence, this is
the only evidence we have. We accept his sworn testimony that the Corps calculated the
quantities on 8 August 2012.
13. The Corps did not disclose in the solicitation that it had performed an
additional survey in March 2012 from which it had collected minimum depths that could
be used to calculate payable quantity. Burnham and/or its subcontractors were capable of
calculating volumes of material using the survey data. (Burnham decl. ~ 3; R4, tab 37)
14. Burnham submitted the low bid on 28 June 2012. The parties thereafter
entered into a contract with an award date of 16 July 2012. (R4, tab 12 at 2, tab 11)
15. The contract incorporated various Federal Acquisition Regulation (FAR)
clauses, including FAR 52.211-18, vARIA TION IN ESTIMATED QUANTITY (APR 1984)
(R4, tab 12 at 5) which provided in part as follows:
If the quantity of a unit-priced item in this contract
is an estimated quantity and the actual quantity of the
unit-priced item varies more than 15 percent above or
below the estimated quantity, an equitable adjustment in
the contract price shall be made upon demand of either
party. The equitable adjustment shall be based upon any
increase or decrease in costs due solely to the variation
above 115 percent or below 85 percent of the estimated
quantity.
In addition, the contract contained EFARS 52.211-5001, vARIA TIONS IN ESTIMATED
QUANTITIES-SUBDIVIDED ITEMS (MAR 1995) (id. at 17).
16. Burnham performed the contract work from August to October 2012 (R4, tab 24).
The Corps conducted a post-dredge survey on 4 and 11 October 2012 (R4, tab 30).
17. The post-dredge survey showed that 15.9 cubic yards of payable material
remained at the site. If the Corps had used its March 2011 estimate, as adjusted down
slightly to 522 cubic yards of material, Burnham would have been entitled to payment
for 506.1 cubic yards. However, the Corps used the March 2012 survey showing
429.9 cubic yards to calculate that Burnham was entitled to payment for 414 cubic
yards. (R4, tab 30; 2nd supp. BurnhafI!. decl. ~~ 6-7)
18. Dredging contracts often require removal of tens of thousands of cubic
yards of material, and sometimes millions (2nd supp. Burnham decl. iJ 6; R4, tab 14 at
12). Because this project contained a small amount of payable material but was labor
intensive (requiring Burnham, among other things, to reduce the rock to rubble with
high explosives), Burnham bid the project at $3,375/cubic yard (CY) for the first
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150 CY of payable quantity (CLIN 0002AA) and $3,000/CY for material over 150 CY
(CLIN 0002AB) (2nd supp. Burnham decl. ~~ 5-6; R4, tab 13 at 4). While Burnham
ultimately had to remove more than 1,500 cubic yards of material, mostly submerged
rock, to complete the contract, this pricing structure left it vulnerable to a significant
reduction in the quantity of payable material (2nd supp. Burnham decl. ~ 6).
19. Burnham submitted a certified claim dated 25 November 2014 to the
contracting officer (R4, tab 32). Burnham contended, among other things, that the
Corps had misrepresented the payable quantity (id. at 1).
20. The contracting officer issued a final decision denying the claim on 9 June
2016 (R4, tab 2). She contended that the differences between the 2011and2012 surveys
"were likely due to differing amounts in soft material present in the areas where work
was to be conducted" because the "volume of rock would not have changed" (id. at 12).
21. Despite this statement in the contracting officer's final decision, the contract
drawings provided that "for payment purposes it is assumed all material removed within
limits of dredging is rock" (R4, tab 6 at 172-75 n.1). Burnham's experience confirmed
this. It found little to no other material such as sand or silt in the dredging area (supp.
Burnham decl. ~ 5; 2nd supp. Burnham decl. ~ 6; see also supp. Preston decl. ~ 6 (an
earlier contractor stated that it could not dig in the dredging areas because they were "hard
rock or ledge")).
Shipping Traffic
22. The solicitation/contract contained the following clause warning bidders
that there are other boats in Boston Harbor that would need some accommodation:
1.3 PROJECT/SITE CONDITIONS
1.3 .1 Physical Data
e. Channel Traffic: Boston Harbor and the adjacent
areas to be dredged are mainly used by deep draft
commercial vessels, fishing vessels, and numerous small
recreation and commercial craft, which may cause some
interference with contract operations. Certain restrictions
on vessel movement are in place when liquid natural gas
(LNG) tankers traverse the harbor. The Contractor will
be required to conduct the work in such a manner as to
obstruct navigation as little as possible, and in the event
the Contractor's plant so obstructs the channel as to make
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difficult or endanger the passage of any vessels, the plant
shall be promptly moved on the approach of any vessel to
such an extent as may be necessary to afford a
practicable passage. Moving of dredging plant may also
be based on the determination of the docking pilot if
vessel traffic requires it.
(R4, tab 6 at 43-44)
23. In Burnham's 25 November 2014 certified claim, it sought $79,233.35 for an
alleged interference in its work by commercial ships and pleasure craft. It later lowered
this amount to $70,144.95. (R4, tab 36 at 3) While Burnham appears to complain
generally about disruptions to its work throughout the contract term caused by these
commercial ships and pleasure craft, as well as restrictions imposed by the Coast Guard,
we will confine our discussion to the days for which Burnham seeks damages (see R4,
tab 32 at 15, tab 36 at 3).
24. Burnham contends it suffered one-half day of delay on each of the following
dates (R4, tab 36 at 3). On 23 August 2012, Burnham's daily report states that it waited
from 7:30 a.m. to 1:00 p.m. for commercial ship traffic to clear out of the work area.
On the following day, it was unable to work after 11 :45 a.m. due to commercial shipping
(R4, tab 24 at 9, 11). On 25 and 30 August 2012, Burnham's daily reports states that
there are "[ o]ngoing issues with pleasure craft approaching dredge at high speeds and
causing wakes" (id. at 13, 22). On 7 September 2012, Burnham's daily report does not
identify any delays caused by other boats; instead, it states that Burnham canceled a blast
due to trouble with its own electronics (id. at 32).
25. From 1-3 September 2012, Burnham contends that it was unable to work
due to increased pleasure boat traffic in the harbor 1 (R4, tab 24 at 25-27). But
Burnham's pre-construction schedule shows that it did not plan to work on 2 and
3 September - the Sunday and Monday of Labor Day weekend (R4, tab 17 at 5).
26. Burnham contends that its work was often impacted by curious recreational
boaters who sped close to its barge, creating a wake that rocked the barge (app. br. at 7).
Mr. Burnham testified that the harbor was "often bedlam on Sundays" because of these
boats (supp. Burnham decl. ,-r 8).
27. Burnham's daily reports for 14-16 and 20 September 2012 state that it did
not perform any work on those dates "due to ship traffic," with the 16 September
report also mentioning work restrictions (R4, tab 24 at 44-46, 50).
1
Burnham eliminated its damage claim for these three dates in its revised submission
to the contracting officer (R4, tab 36 at 3) but they reappear in its briefing to the
Board.
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28. Burnham has provided some evidence with respect to the level of
commercial shipping in the harbor. Citing an email from Andy Hammond, Executive
Director of the Boston Harbor Pilot Association dated 22 August 2012, Burnham
identifies three commercial ships that were scheduled to be in the harbor on 23 August
and seven on 24 August (see R4, tab 32-41 ). It also cites one of its own emails on
23 August to state that the US.S. Constitution was scheduled to be in the harbor on
24 August (R4, tab 32-42). An email from Mr. Hammond identifies five ships
scheduled to be in the harbor on 30 August (R4, tab 32-47).
29. Burnham has also submitted a 5 September 2012 email from a Massport
official that attached the cruise ship schedule for the period 31 August to 1 November
2012 (R4, tab 32-49). For the dates on which Burnham has claimed it suffered a
delay, the email reflects one cruise ship scheduled to be in the harbor on 1, 7, 15, 16,
and 20 September, and two cruise ships on 14 September 2012 (id. at 3 ).
30. Neither party has provided us with any evidence that indicates how the level of
recreational boaters, commercial shipping, cruise ship traffic or Coast Guard restrictions
compares to historic levels in the harbor (although the Corps refers us to the Massport
website, which states that the Conley Terminal, the full service container terminal, handles
about 1.5 million metric tons of cargo per year). Accordingly, we find that Burnham has
not proven that traffic in the harbor was above average while it performed its contract
work, nor has it proved that the Coast Guard caused any quantifiable delay.
DECISION
Dredging Survey
In Burnham's certified claim, it sought to reform the contract by repricing
CLIN 0002 based on the quantities from the March 2012 survey. Thus, its price for
CLIN 0002AA would increase from $3,375 to $4,135 and CLIN 0002AB would increase
from $3,000 to $3,676. Using these numbers, Burnham would be entitled to an equitable
adjustment of $334,464. 2 (R4, tab 32 at 14) However, in its briefing to the Board,
Burnham states that it seeks to either reprice CLIN 0002 based on the March 2012
survey, or to be paid for 506 cubic yards at its bid prices (app. RI 1 hr. at 3; 2nd supp.
Burnham decl. ~ 7).
The government is not required to be clairvoyant when it issues an estimate for
bidding purposes, but a contractor can recover if it shows that the estimate was
2
$4,135 x 150 cy = $620,250
$3,676 x 264 cy = $970,464
$620,250 + $970,464 = $1,590,714
$1,590,714 - $1,256,250 (the amount already paid)= $334,464
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inadequately or negligently prepared, not in good faith, or grossly or unreasonably
inadequate at the time the estimate was made. Clearwater Forest Industries, Inc. v.
United States, 650 F.2d 386, 395 (Ct. Cl. 1981). Thus, to the extent that a government
estimate is inadequately or negligently prepared, its inclusion without correction in a
solicitation or contract constitutes a misrepresentation that, whether deliberate or not,
amounts to a breach of contract. Rumsfeld v. Applied Cos., Inc., 325 F.3d 1328, 1335
(Fed. Cir. 2003) (citing Womackv. United States, 389 F.2d 793, 800 (Ct. Cl. 1968)).
Even if the government's estimate is not drastically inaccurate, if it was prepared
negligently or in bad faith the government is liable for breach. American Gen 'l
Trading & Contracting, WLL, ASBCA No. 56758, 12-1BCAi\34,905 at 171,365.
In Womack, the Court of Claims observed that an inadvertent misrepresentation
stemming from negligence is fully as damaging as a deliberate one to the party who relies
upon it. Womack, 389 F.2d at 800. A bidder is entitled to rely on an estimate as
representing honest and informed conclusions. Id. (citing Lynch Motors, Inc. v. United
States, 292 F.2d 907, 909-10 (Ct. Cl. 1961)). The inclusion of a variance in quantity
provision in the contract does not dilute the standard to which the government is held.
Such clauses afford flexibility to accommodate actual deviations that are not reasonably
predictable at the time the estimate is made and during the time that it remains subject to
reliance by the bidder, embracing variations that are attributable to facts that are not
among those reasonably available to the estimator. The variance in quantity clause does
not excuse the estimator from using and disclosing relevant information that is reasonably
available to him, nor does it require the contractor to bear the first 15% of the burden of
the government's negligence. Id. at 801.
Based on the government's position in its May 2017 summary judgment brief-
that it calculated the 430 cubic yards estimate in June 2012, the month prior to contract
award - we would have no problem in concluding that the Corps was negligent in failing
to provide the revised estimate to Burnham. The government's defense in that earlier
brief seemed to focus on the fact that it did not have the lowered estimate when it issued
the solicitation in May 2012 (gov't MSJ br. at 15). However, this would not have
absolved the government of liability. The Court of Appeals for the Federal Circuit has
held that ifthe government obtains new information between the time of solicitation and
award it will be held liable for a misrepresentation if it does not disclose that information
to the contractor. Applied Cos., 325 F.3d at 1330-31, 1335.
The revised facts conveyed through the government's Rule 11 brief and the
supplemental Preston declaration present a closer call because the government had not yet
calculated the lowered quantity estimate at the time of award. But after carefully
considering the facts and the legal test articulated in Womack, we hold that the
government is liable for a misrepresentation. Under Womack, the government is required
to base its estimate on all relevant information that is reasonably available to it. Womack,
389 F .2d at 801. The government failed to do that because it did not base its estimate on
the most current survey from March 2012. Using a survey that was more than a year old
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rather than the March 2012 survey was also inconsistent with the Corps' practice of
performing a pre-dredge survey within six months of the start of dredging (finding 5).
While Mr. Preston performed a "quick map check" on the March 2012 survey, his
motivation was to check the accuracy of the new equipment, not to verify the quantity
estimate to be provided in the solicitation (finding 7).
We recognize that precedent provides that the government is not required to take
extraordinary measures to ensure an accurate estimate. Medart, Inc. v. Austin, 967 F.2d
579 (Fed. Cir. 1992). In Medart, the Federal Circuit considered a claim on a contract to
supply cabinets to federal agencies in locations around the world. Id. at 580. The
solicitation included estimates based on the number of cabinets ordered in each of three
delivery zones. Id. During the course of performance, the government's estimate
proved to be much higher than the actual need and the contractor contended that it
experienced devastating losses. Id. Citing Womack, the Federal Circuit rejected the
contractor's argument that the agency should have polled end users because the military
alone used the cabinets at hundreds of sites around the world and there was no central
site to obtain accurate predictions of orders. The Court of Appeals held that the
government used information that was reasonably available; it need not search for or
create additional information. Id. at 582.
In Womack the Court of Claims reached a different conclusion in a case stemming
from a contract for the preparation of plats and a historical index for each township in
Utah. The work involved transposing information contained in a Control Document
Index onto title and use plats. The specifications estimated that this index would consist
of 65,000 index cards that were being created by another contractor, York Tabulating
Service (York). As it turned out, the estimate was quite low and York created 105,000
cards, resulting in additional work. Womack, 389 F.2d at 795-96, 798. The Court of
Claims entered judgment for the contractor, holding that there was additional relevant
information that was "reasonably available" to the agency in making its estimate. Id. at
799. First, the court held that the agency could have analyzed its own indexes of film
rolls containing microfilm of millions of title and usage source documents, to determine a
minimum number of index cards for Utah. Id. at 799. Second, at a time shortly before
contract award when York had created only about 64,000 index cards and reported that it
was almost finished, the court held that the agency could have examined York's
production records and asked York more probing questions as to the number of index
cards yet to be produced. Id at 800.
We hold that the facts in this appeal are more similar to Womack than Medart.
As we have found, by the time the Corps issued the solicitation it had already done the
vast majority of work required to estimate payable quantities using the 2012 survey.
Mr. Preston and his team spent 3 days in Boston Harbor in March 2012 performing the
survey; they then spent the next 1.5 months analyzing the data (findings 6-7). The
only task remaining at the time of solicitation was to run the product of this effort
through the MicroStation software program (finding 11). While this took an additional
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day of work, we find it to be within a reasonable level of effort because it was far
easier than the review and analysis of agency and contractor records (using 1950s
technology) that the Court of Claims found to have been warranted in Womack and is
not in any way comparable to the worldwide polling effort that the Federal Circuit
rejected in Medart.
At the time of the solicitation the Corps knew that volumes of dredged materials
can change over time. For this reason, the Corps generally completes a survey within six
months of the start of dredging (finding 5). Despite this, and despite having performed
almost all of the work required to produce an estimate using the March 2012 survey, the
Corps decided to use a survey that was more than a year old as the basis for the estimate
in the solicitation. The Corps also neglected to inform bidders of the existence of the
2012 survey, which prevented them from performing their own analysis. The Variation
in Quantity clause is only intended to protect the government against variations in
quantity that are not reasonably predictable at the time of the estimate. Womack, 389
F .2d at 801. Because a variation in the payable quantity was entirely predictable, and
because the variation in the quantity clause may not properly be used to excuse the
estimator from using and disclosing relevant information that is reasonably available to
him (id.), we hold that, Burnham has established liability and that its damages are not
capped by the variation in estimated quantity clause.
Shipping Traffic
We reject Burnham's shipping traffic claim because it has not proven that boat
traffic was above normal or beyond that identified in the contract. As to the former
point, Burnham has not produced any evidence that shows how commercial shipping
in the harbor during contract work compared with historical use. With respect to the
limited information Burnham has provided during the contract term, the three
commercial ships that Burnham identified on 23 August 2012, for example, do not
strike us as clearly beyond what could have been reasonably expected. Nor are we
particularly surprised that there was heavy recreational boat traffic on Labor Day
weekend, or on other days in the late summer/early fall. Burnham largely appears to
be complaining about delays caused by third parties (that is, the commercial ships and
recreational craft) but precedent does not allow a contractor to recover from the
government for delays caused by third parties. See Contrack International, Inc.,
ASBCA No. 59917, 16-1BCA-,r36,532 at 177,954-55.
The Channel Traffic clause in the contract specifically alerted Burnham to the
risk of delays caused by other ships (finding 22). This clause specifically warned
Burnham that: 1) deep draft commercial vessels, fishing vessels, and numerous small
recreation and commercial craft may cause some interference with contract operations;
2) restrictions on vessel movement are in place when LNG tankers traverse the harbor;
3) Burnham would be required to conduct work in such a manner as to obstruct
navigation as little as possible; and 4) in the event its plant obstructed the channel so as
10
to make it difficult or endanger the passage of any vessels, Burnham would be
required to move its plant. Thus, the contract provided Burnham with ample warning
of the challenges it would face. Put another way, Burnham has not identified any
language in the contract in which the Corps warranted that Burnham would be free of
insouciant recreational boaters speeding too close to its dredge or that its operations
would take priority over routine commercial and cruise ship operations.
Burnham reads the Channel Traffic clause much differently, contending in its
brief that the government warranted that the work site would be available except for
times when LNG tankers were transiting the harbor (app. br. at 14). We disagree.
While the clause does speak of restrictions on Burnham moving its vessel when LNG
tankers are traversing the harbor, this does not in any way limit other warnings in the
clause, namely, that multiple types of ships may interfere with Burnham's operations,
that it would have to avoid obstructing navigation, and that it would be required to
move its barge when it obstructed traffic. Burnham's reading would essentially read
these provisions out of the contract, but we are required to read the contract in such a
way as to give meaning to all of its terms. Bell/Heery, JV v. United States, 739 F.3d
1324, 1331 (Fed. Cir. 2014).
Burnham cites the Federal Circuit's opinion in Olympus Corporation v. United
States, 98 F.3d 1314 (Fed. Cir. 1996), in support of a contention that government
interference with work site access may constitute a breach of the government's duty to
cooperate (app. br. at 14). Burnham's citation to Olympus is incomplete. The full
sentence we believe it is referring to reads:
While interference by the government with a contractor's
access to the work site may constitute a breach of the
government's duty to cooperate, the government is not
responsible for third-party actions such as labor strikes that
delay a contractor's performance, absent a specific
contractual provision.
Olympus, 98 F.3d at 1318. The Federal Circuit held that the government was not liable to
the contractor for d~lays caused by a strike to another contractor. Id. This is consistent
with our holding above that the government is not responsible for third-party delays.
Accordingly, we deny Burnham's appeal with respect to shipping traffic delays.
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CONCLUSION
We sustain the appeal with respect to the claim that the government
misrepresented the quantities of payable materials, otherwise we deny the appeal. The
appeal is remanded to the parties for negotiation of quantum.
Dated: 13 December 2017
,~~rno eJ
CHAEL N. O'CONNELL
1
Administrative Judge
Armed Services Board
of Contract Appeals
I concur I concur
RICHARD SHACKLEFORD OWEN C. WILSON
Administrative Judge Administrative Judge
Acting Chairman Vice Chairman
Armed Services Board Armed Services Board
of Contract Appeals of Contract Appeals
I certify that the foregoing is a true copy of the Opinion and Decision of the
Armed Services Board of Contract Appeals in ASBCA No. 60780, Appeal of
Burnham Associates, Inc., rendered in conformance with the Board's Charter.
Dated:
JEFFREY D. GARDIN
Recorder, Armed Services
Board of Contract Appeals
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