CDM Constructors Inc.

ARMED SERVICES BOARD OF CONTRACT APPEALS

Appeals of - )

)

CDM Constructors Inc. ) ASBCA Nos. 62026, 62088, 62089

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Under Contract No. W912PL-12-C-0022 )

APPEARANCES FOR THE APPELLANT: Bret S. Wacker, Esq.

Emily J. Baldwin, Esq.

Jeffrey M. Gallant, Esq.

Clark Hill PLC

Detroit, MI

APPEARANCES FOR THE GOVERNMENT: Michael P. Goodman, Esq.

Engineer Chief Trial Attorney

John F. Bazan, Esq.

Gilbert H. Chong, Esq.

Brian M. Choc, Esq.

Engineer Trial Attorneys

U.S. Army Engineer District, Los Angeles

OPINION BY ADMINISTRATIVE JUDGE SWEET

On December 3, 2020, appellant CDM Constructors, Inc. (CDM) moved for

reconsideration (motion) of our decision on quantum in CDM Constructors, Inc.,

ASBCA No. 62026 et al., 20-1 BCA ¶ 37,721 (CDM II). In CDM Constructors, Inc.,

ASBCA No. 60454 et al., 18-1 BCA ¶ 37,190 at 181,013 (CDM I)—the entitlement

decision—we held that, even though the Army Corps of Engineers had constructively

changed the contract by imposing certain requirements related to evaporation ponds

(EPs), the government did not constructively change the contract when it required

CDM to include a standby EP. Moreover, as discussed in far greater detail in CDM II

(with which we presume the reader is familiar), we held in CDM II that CDM had

failed to prove quantum because it did not show that its revised 100 percent design—

which CDM sought to use as a baseline with which to compare the contractual

change—did not include a standby EP. Below, we find that the arguments CDM

brings to this motion for reconsideration have been waived, and thus are not

appropriate bases for reconsideration, because CDM did not raise those arguments in

the initial quantum appeal. In any event, those arguments are meritless. Therefore, we

deny the motion.

I. CDM Waived the Arguments that it Raises in its Motion, and Those

Arguments are not Appropriate Bases for Reconsideration

CDM waived the arguments that it raises in its motion, and thus those

arguments are not appropriate bases for reconsideration. Motions for reconsideration

are only appropriate if they are based upon newly discovered evidence, mistakes in the

findings of fact, or errors of law. Green Valley Co., ASBCA No. 61275, 18-1 BCA

¶ 37,044 at 180,330. “Motions for reconsideration do not afford litigants the

opportunity to take a ‘second bite at the apple’ or to advance arguments that properly

should have been presented in an earlier proceeding.” Dixon v. Shinseki, 741 F.3d

1367, 1378 (Fed. Cir. 2014) (citations and quotations omitted). As a result, in our

discretion, we may find that arguments not raised in an opening post-hearing brief

have been waived. Becton Dickinson & Co. v. C.R. Bard, Inc., 922 F.2d 792, 800

(Fed. Cir. 1990).

Here, while CDM’s motion for reconsideration is not entirely clear, we understand

CDM’s primary arguments 1 to be that: (1) the Board should not rely upon the water

balance analysis because it merely provided an estimate (mot. at 9-15); (2) we should

pro-rate CDM’s costs (id. at 28-30); (3) the relevant design did not need the purported

standby EP to prevent operational overflows (id. at 27-28); (4) the original operating

scenario did not use the purported standby EP to prevent operational overflows, and

merely diverted flow to the purported standby EP while cleaning an in-service EP (id.

at 30-33); (5) under res judicata or the law of the case doctrine, CDM I precludes a

finding that two months was a reasonable time to clean an EP (id. at 21-27); (6) the

testimony of CDM’s quantum EP expert (William B. O’Neil) established that the

alternative operating scenario showed that the relevant design included a standby EP (id.

at 18-21, 33-37); (7) CDM’s request for equitable adjustment (REA) did not concede that

the relevant design needed to use the purported standby EP to prevent operational

overflows (id. at 37-39); and (8) our qualifying the Corps’s quantum expert (Antonia

Ortiz) as an expert caused unfair surprise and undue prejudice (id. at 15-18). Because

CDM already had the opportunity to—and properly should have—advanced those

arguments earlier, CDM merely seeks a second bite at the apple. Therefore, CDM

waived those arguments, those arguments are not an appropriate bases for

reconsideration, and we deny the motion.

1 To the extent CDM raises other minor arguments, we find that it waived those

arguments, and they are meritless.

2

II. CDM’s Arguments are Meritless

In the alternative, we deny the motion because CDM’s arguments are meritless.

A. Water Balance Analysis

1. CDM’s Argument that the Board Should not Reply Upon the

Water Balance Analysis is Meritless

CDM’s argument that the Board should not rely upon the water balance analysis

because it merely provided an estimate is meritless (mot. at 9-15). As CDM II

properly held, while the water balance analysis is only an estimate, that analysis is a

relevant and reliable method for determining if a design includes a standby EP2—i.e.,

if it is necessary to use a purported standby EP for net evaporation to balance

inflows—because Ms. Ortiz, Mr. O’Neil, and CDM’s entitlement EP expert

(Dr. Beth Gross) all agreed that the determination of whether net evaporation balances

inflows should start with a water balance analysis (finding ¶ 6). Indeed, CDM’s

continued attempts to minimize the usefulness of the water balance analysis in

determining if net evaporation balances inflows is not persuasive in light of the fact

that its entitlement EP expert relied upon a water balance analysis for that precise

purpose (findings ¶¶ 6-8).

2. CDM’s Argument that the Board Should Pro-Rate Costs is

Meritless

CDM argues, in the alternative, that we should pro-rate its costs by 1.3 percent

to reflect the 1.3 percent increase in the required surface area and depth that CDM II

purportedly found the water balance analysis showed was needed in the relevant

design for net evaporation to balance inflows (mot. at 28-30). That argument assumes

that the deficiency that CDM II found in the relevant design was that it lacked

1.3 percent standby capacity. However, as we held in CDM I, the 0022 Contract did

not require standby capacity, but a standby EP. Thus, the problem with the fact that

the required surface area exceeded the available surface area at the maximum depth by

1.3 percent was not that that fact showed a 1.3 percent lack of standby capacity.

Rather, the problem with that fact was that it showed that the purported standby EP

was not a standby EP because the relevant design—which CDM made the litigation

decision to rely upon exclusively as its baseline on the assumption that it had a standby

EP—needed to use the purported standby EP to prevent operational overflows. As a

result, we cannot simply pro-rate costs to reflect a purported lack of standby capacity.

2 We continue to use terms as defined in CDM II. Further, all citations to “finding” are

to the findings of fact in CDM II.

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In any event, it cannot be inferred from CDM II’s finding that the required

surface area was 1.3 percent greater than the available surface area at the maximum

depth that the required surface area and depth only would need to have been

1.3 percent larger in order for net evaporation to balance inflows. That inference

assumes that the water balance analysis would show that net evaporation would

balance inflows if the required surface area equaled the available surface area at the

maximum depth. However, under CDM II, the required surface area should have been

significantly less than the available surface at the maximum depth because the required

surface area is the average surface area needed for net evaporation to balance inflows,

but the EPs cannot continuously be operated at the maximum depth to provide that

average required surface area (finding ¶ 8). As a result, we cannot simply pro-rate

CDM’s costs by 1.3 percent to reflect the required surface area at the maximum depth.

B. CDM’s Model does not Support Finding that the Relevant Design

Included a Standby EP

1. CDMS’s Argument that the Relevant Design did not Need the

Purported Standby EP to Prevent Operational Overflows is Meritless

CDM’s argument that the relevant design did not need the purported standby

EP to prevent operational overflows is meritless (mot. at 27-28). CDM’s assertion that

it input inflow data into its model to determine the required water depth once operating

decisions were made is beside the point (mot. at 27-28). That assertion does not

change the fact that CDM failed in its attempt to use its model to establish that the

relevant design included a standby EP because it did not present any operating

scenario under which its model showed that the required water depth was less than the

available water depth without using the purported standby EP. On the contrary, the

Corps had to use the purported standby EP for more than the two months that it took to

clean the in-service EPs under both operating scenarios presented by CDM. Because

the two operating scenarios presented by CDM showed that the relevant design needed

the purported standby EP to prevent operational overflows, CDM failed to meet its

burden of showing that the relevant design included a standby EP. (Findings ¶¶ 9-11;

CDM II, 20-1 BCA ¶ 37,721 at 183,108-09).

2. CDM’s Argument that the Original Operating Scenario did not

use the Purported Standby EP to Prevent Operational Overflows,

and Merely Divert Flow to the Purported Standby EP While

Cleaning an In-Service EP is Meritless

CDM’s argument that the original operating scenario did not use the purported

standby EP to prevent operational overflows, and merely diverted flow to the

purported standby EP while cleaning an in-service EP is meritless (mot. at 30-33).

While CDM is correct that the original operating scenario did not show an operational

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overflow, it achieved that result by diverting flow to the purported standby EP every

12 months (finding ¶ 9). However, the only credible evidence about whether that

12 months was a reasonable length of time to clean the in-service EPs established that

that was an unreasonable amount of time because it reasonably only took 2 months to

clean an in-service EP (finding ¶ 3). Therefore, as Ms. Ortiz testified, the original

operating scenario went beyond merely diverting flow to the purported standby EP

while cleaning the in-service EPs, and instead used the purported standby EP to

prevent operational overflows (finding ¶ 9).

3. CDM’s Argument that, under the Res Judicata or the Law of the

Case Doctrines, CDM-I Precludes our Finding that two Months

was a Reasonable Time to Clean an EP is Meritless

CDM’s argument that, under the res judicata or the law of the case doctrines,

our decision on entitlement in CDM I precludes our finding that two months was a

reasonable time to clean an EP is meritless (mot. at 21-27). Under res judicata or the

law of the case doctrines, “[i]ssues decided in an entitlement proceeding cannot be

relitigated in a subsequent quantum appeal.” W.C. Fore Trucking, Inc., ASBCA

No. 40663, 93-2 BCA ¶ 25,703 at 127,864. In CDM I, we merely held that a standby

EP is an EP that is operational, but not in use unless or until there is an emergency.

CDM I, 18-1 BCA ¶ 37,190 at 181,008 n.12. CDM I did not address the issue of

whether diverting flow to a purported standby EP while cleaning an in-service EP

constituted “use;” let alone for how long such a diversion for cleaning could qualify as

non-use based upon the reasonable length of time it took to clean an in-service EP. Id.

Indeed, in its reply brief, CDM concedes that its complaint is that CDM I “did

not find that the Contract included a limitation on the time a Standby EP could be put

in service” (app. reply br. at 7). Res judicata, of course, is inapplicable when a “prior

decision[] did not consider or decide [an] issue[]” Soledad Enterprises, Inc., ASBCA

No. 25826, 82-1 BCA ¶ 15,517; see also Steven E. Jawitz, ASBCA No. 33610, 87-3

BCA ¶ 20,011. Thus, because CDM I did not consider or decide the issue of what was

a reasonable length of time to divert flow to a standby EP while cleaning an in-service

EP, CDM I does not preclude CDM II’s finding that two months was a reasonable

length of time for such a diversion (finding ¶ 3).

4. CDM’s Argument that Mr. O’Neil’s Testimony Established that

the Alternative Operating Scenario Showed that the Relevant

Design Included a Standby EP is Meritless

CDM’s argument that Mr. O’Neil’s testimony established that the alternative

operating scenario showed that the relevant design included a standby EP is meritless

(mot. at 18-21, 33-37). CDM II properly gave little weight to Mr. O’Neil’s testimony

that the alternative operating scenario showed that the relevant design included a standby

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EP for three reasons. First, CDM II properly gave little weight to Mr. O’Neil’s

alternative operating scenario testimony because there was an unexplained, large

discrepancy between the average required depth3 of over 60 inches under Mr. O’Neil’s

water balance analysis, and the average required depth of 20 inches4 under his alternative

operating scenario (finding ¶ 11). CDM argues that Mr. O’Neil’s water balance analysis

did not show that the average required depth was over 60 inches because 60 inches was

the maximum depth, and not the average required depth (mot. at 34). That argument

ignores the fact that the average required surface area in Mr. O’Neil’s water balance

analysis was greater than the surface area at the maximum depth, so the average required

surface area occurred at a depth greater than the 60 inch maximum depth. 5 Thus, the

required depth in Mr. O’Neil’s water balance analysis had to be greater than the 60 inch

maximum depth (findings ¶ 7 n.4, ¶ 11 n.6).

Second, CDM II properly gave little weight to Mr. O’Neil’s alternative

operating scenario testimony because CDM only supported that testimony with a

demonstrative exhibit, instead of with evidence (finding ¶ 11). While CDM is correct

that Mr. O’Neil offered to make tables of data available to the Corps during his

cross-examination, CDM mischaracterizes what occurred at the hearing when it states

that the Corps rejected that offer (mot. at 19 (citing tr. 3/45)). Instead, the Corps

correctly argued that it already had suffered prejudice from not having the tables

before it cross-examined Mr. O’Neil (tr. 3/45). In any event, independent of any

obligation to disclose information to the government, it was CDM’s burden to prove

quantum to the Board. B.R. Servs., Inc., ASBCA No. 47673 et al., 99-2 BCA ¶ 30,397

at 150,272. The absence of any of the data regarding CDM’s model using the

alternative operating scenario prevented us from verifying the veracity of Mr. O’Neil’s

alternative operating scenario testimony, and thus undermines the weight to which that

opinion is entitled.

Third, CDM II properly gave little weight to Mr. O’Neil’s alternative operating

scenario testimony because the supporting demonstrative exhibit showed that the

purported standby EP needed to be used for more than the two months a year while

3 CDM quibbles over the term “required depth,” incorrectly suggesting that CDM II

found that the 0022 Contract required a particular depth (mot. at 32-34; app.

reply br. at 9). However, CDM II clearly defined the term “required depth” as

the depth an analysis or model concluded a design’s EPs—and not the

0022 Contract—required for net evaporation to balance inflows (finding ¶ 9).

4 CDM mischaracterizes CDM II as holding that the “‘required depth’ of the EPs

[under the alternative operating scenario] was 40 inches” (mot. at 33). In fact,

CDM II held that, while “the required depth did not exceed about 40 inches”

(finding ¶ 10 (emphasis added)), it averaged 20 inches (finding ¶ 11).

5 The relevant design EPs contained set dimensions, so they would have a particular

surface area at a particular depth (R4, tab 1057 at 2,947).

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cleaning the in-service EPs (finding ¶ 11). In support of its motion, CDM submits a

new exhibit that adds annotations to the graph in the demonstrative exhibit. Those

annotations assert that the two months the purported standby EP was in service each

year were June and July. (Mot., ex. B) However, even if CDM had not waived the

annotations by failing to include them in the demonstrative earlier (which is not the

case), there is no evidence or testimony—let alone expert testimony—supporting those

annotations (mot. at 36-37). Indeed, we cannot even verify the annotations against the

demonstrative graph because that graph only shows years, and not months. Without

an indication of months, we are left to estimate from the graph how many months a

year the purported standby EP was in service (trial ex. 5). As best as we can determine

under those limitations created by CDM, the purported standby EP was in service for

more than two months a year under the alternative operating scenario (finding ¶ 11).

5. CDM’s Argument that its Request for an Equitable Adjustment did

not Concede that the Relevant Design Needed to use the Purported

Standby EP to Prevent Operational Overflow is Meritless

CDM’s argument that its REA did not concede that the relevant design needed to

use the purported standby EP to prevent operational overflows (mot. at 37-39) is

meritless because the REA failed to use the infinity symbol (∞) for the relevant design

EP standby period, and CDM acknowledged that an infinity symbol represented a

standby EP that was not used to prevent operational overflows (finding ¶ 15). CDM

does not dispute that the REA failed to use the infinity symbol for the relevant design EP

standby period. Rather, it argues that it did not acknowledge that an infinity symbol

represented a standby EP that was not necessary to prevent operational overflows (mot.

at 37-39). However, in the REA, CDM stated that “the Corps directed that the ‘standby’

pond could not be used for any operational overflow, and that its standby period is

considered to be ‘infinity’” (R4, tab 4 at 36). While CDM’s REA disputed the

government’s position that a standby EP could not be used to prevent operational

overflows, it did not dispute that an infinite standby period referred to an EP that was not

used to prevent operational overflows (id.). On the contrary, the fact that CDM proceeds

to use the infinity symbol in REA attachment C’s standby period column without

proffering any alternative definition of the term infinity, leaves the only definition of

infinity that CDM reasonably could have meant as the one referred to earlier in the

REA—namely an EP that was not used to prevent operational overflows (id. at 36, 109).

Indeed, the fact that CDM used the infinity symbol in attachment C to represent the

standby period “Per GOV Direction” demonstrates that CDM acknowledged that the

infinity symbol—as used in attachment C—had the “Corps-directed” meaning of an EP

that was not used to prevent operational overflows (id.).

In any event, CDM ignores the more important point that, by indicating in

attachment C that the relevant design only had a standby period of 12 months while

the government direction was to provide an infinite standby period, CDM

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acknowledged that the relevant design did not meet the government direction that the

standby EP could not be used to prevent operational overflows (id. at 109). That

acknowledgement, in turn, effectively means that the REA conceded that the relevant

design did not satisfy CDM I’s definition of a standby EP because CDM I adopted the

government directed definition of a standby EP as an EP that was not necessary to

prevent operational overflows. CDM I, 18-1 BCA ¶ 37,190 at 181,012-13.

C. CDM’s Argument that our Qualifying Ms. Ortiz as an Expert Caused

Unfair Surprise and Undue Prejudice is Meritless

CDM again mischaracterizes what occurred at the hearing when it argues that

our qualifying Ms. Ortiz as an expert after we purportedly rejected her as an expert and

CDM presented its case-in-chief caused unfair surprise or undue prejudice (mot.

at 15-18). While CDM is correct that we ruled at the beginning of the hearing that

Ms. Ortiz did not qualify as an expert in EPs (tr. 1/9-13), it neglects to mention that we

also ruled prior to CDM’s case-in-chief that the Corps could voir dire Ms. Ortiz after

CDM’s case-in-chief to establish that Ms. Ortiz qualified as an expert in the sizing of

ponds for outflows to balance inflows more generally (tr. 1/17-18).6 Therefore, our

qualifying Ms. Ortiz as an expert in pond sizing after the voir dire that we had

informed the parties we would allow the Corps to conduct after CDM’s case-in-chief

did not cause unfair surprise. Moreover, CDM did not suffer undue prejudice because

CDM had ample opportunity to cross-examine Ms. Ortiz, and to respond to her

testimony during rebuttal (tr. 2/208-64, 3/12-43).

Also meritless is CDM’s argument that it was prejudiced by the fact that

Ms. Ortiz’s expert reports did not indicate that two months was a reasonable time to

divert flow to a standby EP while cleaning an in-service EP (mot. at 16-17). While

Ms. Ortiz’s expert reports did not specifically refer to two months (tr. 3/28), her

rebuttal report clearly opined that the relevant design went beyond diverting flow to

the purported standby EP while cleaning an in-service EP, and instead used the

purported standby EP to prevent operational overflow (R4, tab 1000 at 3-4). If CDM

was unclear about the specific reasons why Ms. Ortiz thought that the relevant design

went beyond diverting flow to the purported standby EP while cleaning an in-service

EP—i.e., because the relevant design used the purported standby EP for more than the

two months that it reasonably took to clean an in-service EP—it could have questioned

Ms. Ortiz about that issue at her deposition. In any event, CDM suffered no prejudice

because it had the opportunity to cross-examine Ms. Ortiz and present rebuttal

evidence regarding Ms. Ortiz’s opinion that two months was a reasonable time to

divert flow to a standby EP while cleaning an in-service EP. Yet it failed to impeach

6 CDM did not preserve its argument that qualifying Ms. Ortiz as an expert caused unfair

surprise or undue prejudice by raising that objection at voir dire (tr. 1/18-20).

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Ms. Ortiz’s testimony or to present any contrary evidence on that issue. (Tr. 2/208-64,

3/12-43)

CONCLUSION

For the reasons discussed above, CDM’s motion for reconsideration is denied.

Dated: April 7, 2021

JAMES R. SWEET

Administrative Judge

Armed Services Board

of Contract Appeals

I concur I concur

RICHARD SHACKLEFORD J. REID PROUTY

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 Nos. 62026, 62088, 62089

Appeals of CDM Constructors Inc., rendered in conformance with the Board’s Charter.

Dated: April 8, 2021

PAULLA K. GATES-LEWIS

Recorder, Armed Services

Board of Contract Appeals

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