Costs Awarded for Lock and Dam Construction Claims

In a lengthy opinion, the Court of Federal Claims granted in part claims asserted by sureties that assumed responsibility to complete performance of a lock and dam construction contract because defective specifications, delays in government responses, and government directives resulted in compensable delays and changes. The partial denial of the sureties' cost claims was primarily the result of their failure to establish a critical path for the entire project and prove costs and causation for alleged productivity losses. Of the granted claims, the largest award of $6.6 million was for costs and delays attributable to workability issues with the concrete mix. Contract specifications allocated responsibility for the concrete mix between the contractor and the government. The contractor was responsible for selecting samples of mixture components, but the government was responsible for testing samples, performing mixture proportioning studies, and proportioning mixtures.

Design Specification

The court concluded use of the concrete mix was a design specification because, although the contractor had discretion in selecting materials, the government was solely responsible for proportioning the concrete and providing a workable mix. In addition, the contractor's selection of Class C fly ash and manufactured sand did not relieve the government of its responsibility to provide a workable mix. The government approved the use of both components, and workability issues persisted after the substitution of Class F fly ash.

"Orphan Decision"

The court also granted the sureties' motion for summary judgment on the government's counterclaim for a price reduction because the contracting officer abdicated her responsibility to make independent decisions and her final decision did not provide a "valid predicate" for the counterclaim. The final decision alleged the administrative CO's decision to waive dry-testing requirements, which changed the contract's sequence of work to permit rewatering the site before all components were installed and tested, saved the contractor more than $9 million in time and overhead. The final decision was issued nearly six years after the ACO's waiver, days before the Contract Disputes Act's limitations period ended, and a few weeks before the scheduled trial date. The government's claim for a credit for time saved was inconsistent with how the CO and other government personnel regarded the resequencing during performance of the contract, which was that it benefitted both parties. The government failed to demonstrate the counterclaim was the product of the CO's own analysis or that the CO relied on the ACO's technical input. Instead, the CO's testimony "portrayed an orphan decision that she signed because her legal team recommended it." The court concluded "[s]uch a decision hardly can be elevated to the product of the exercise of the [CO's] independent judgment." (Fireman's Fund Ins. Co., et al. v. U.S., FedCl, 54 CCF 79,338)




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