Marine Industrial Construction, LLC v. United States

In the United States Court of Federal Claims

No. 15-1189

(Filed: 17 February 2022)

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MARINE INDUSTRIAL CONSTRUCTION, *

LLC, *

*

Plaintiff, * Summary Judgment; Termination for

* Default; Termination for Convenience;

v. * Conversion; Excusable Delay; Differing Site

* Condition; Superior Knowledge; Dredging;

THE UNITED STATES, * Reprocurement Costs; Liquidated Damages;

* Compensable Delay; Notice; Waiver

Defendant. *

*

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Joseph A. Yazbeck, Jr., with whom was David H. Bowser, Jordan Ramis PC, all of Lake

Oswego, Oregon, for plaintiff.

Jimmy S. McBirney, Trial Attorney, with whom were Douglas K. Mickle, Assistant

Director, Robert E. Kirschman, Jr., Director, Joseph H. Hunt, Assistant Attorney General,

Commercial Litigation Branch, Civil Division, U.S. Department of Justice, all of Washington,

D.C., and Anna D. Ross, Assistant District Counsel, U.S. Army Corps of Engineers, of Seattle,

Washington, for defendant.

OPINION AND ORDER

HOLTE, Judge.

A Perfect Storm

The skies unrest when the government tests performance-based solicitations,

A wary dredger would fare far better if it worked with fewer hesitations,

Fighting the elements, with debris and sediments, onward the task did drag,

Before they knew it, the fish window, they blew it, so up they raised the white flag,

Motions were filed, allegations compiled, but material facts are disputed,

To trial we go so the parties may show if this perfect storm has concluded. 1

Marine Industrial Construction, LLC (“MIC” or “plaintiff”), accuses the government of

breach of implied warranty and wrongful termination for default of a waterway dredging contract

1

As the parties inserted gest into earlier briefing, this Court’s “A Perfect Storm” poem is a tribute to The Honorable

Loren A. Smith and his full-order maritime poem published in Neal & Co. v. United States, 41 Fed. Cl. 584 (1998).

See also Pl.’s Reply in Supp. of Mot. for Site View at 1, 2, 4, ECF No. 112 (quoting Hamlet).

awarded for $1,290,250. The government counterclaims for costs related to the termination of

the contract totaling $1,031,751.50, plus interest. The Court bifurcated the motions contained

within the cross-motions for summary judgment to first address four issues relating to the

timeliness of evidentiary objections, exhibit authentication, designating a witness as an expert,

and the admissibility of certain statements. The Court decided those four issues on 29 December

2020, conducted a site visit on 4 October 2021, and held oral argument on the remaining issues

on 5 October 2021. This Order decides all remaining issues contained within the cross-motions

for summary judgment. For the following reasons, the Court grants in part and denies in part

plaintiff’s motion for summary judgment and grants in part and denies in part the government’s

cross-motion for summary judgment.

I. Factual History 2

A. A Perfect Storm Brews

On 25 July 2014, the U.S. Army Corp of Engineers (“USACE” or “the government”)

issued Solicitation W912DW-14-B-0008 (“the solicitation”), for hydraulic dredging at the

Quillayute River Waterway in La Push, Washington (“the waterway”). Def.-Counterclaimant’s

Opp’n to Pl.’s Mot. for Summ. J. and Cross-Mot. for Summ. J. (“Def.’s Cross-MSJ”) at 3, ECF

No. 83 (citing App. to Def.’s Cross-MSJ (“Def.’s Cross-MSJ App.”) at 131–280 (Contract, FY14

Maintenance Dredging Quillayute River Waterway, La Push, Washington, Contract Number

W192DW-14-C-0024)). The solicitation warned against dangerous weather conditions and some

debris in the dredging area. Id. at 3–5 (citing Def.’s Cross-MSJ App. at 165, 193, 263, 273, 282

(the solicitation)). The solicitation urged bidders to perform a site visit to inspect “the character,

quality, and quantity of surface and subsurface materials or obstacles to be encountered insofar

as this information is reasonably ascertainable from an inspection of the site.” Id. at 5 (citing

Def.’s Cross-MSJ App. at 165 (the solicitation)). The solicitation informed prospective bidders

the government had no knowledge of “artificial obstructions” that would require “additional

equipment for economical removal.” Decl. of David H. Bowser in Supp. of Pl.’s Mots. for

Summ. J. (“Bowser Decl.”) Ex. K at 1, ECF No. 80-10 (2014 solicitation).

The government procures dredging services of the waterway typically every two to three

years. Cross-MSJ Oral Arg. Tr. (“Tr.”) at 20:24–21:8, ECF No. 121. In 2014, however, the

solicitation for these services was markedly different from past years. See Ex. K (comparison of

solicitations from 2014, 2011, 2009, 2007, 2003, and 2002). The government moved “from a

design-based specification to a more performance-based specification.” Tr. at 197:19–198:25

(government counsel explaining the changes in 2014). The government “streamlined” the

solicitation by removing certain disclaimers and requirements to bid on the contract. Id.; Def.’s

Cross-MSJ at 42. In particular, the government removed warnings of sunken boats, fishnets,

steel trolling wire, and machinery—all likely to cause frequent downtime. Compare Ex. K at 1–

2 (2014 solicitation), with id. at 9–10 (2011 solicitation), and id. at 13 (2009 solicitation). The

government also removed precipitation information for the area and warnings about the resultant

2

All facts in this section are undisputed, unless stated otherwise. See Rules of the Court of Federal Claims

(“RCFC”) 56(a) (requiring a movant for summary judgment to show “there is no genuine dispute as to any material

fact”). The Court draws all inferences “in the light most favorable to the party opposing the motion.” Matsushita

Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587–88 (1986).

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“fast currents” carrying “[l]arge logs and trees” likely to arise “with little warning” and cause

damage to equipment. Id. Additionally, the government added a boat basin to the scope of the

solicitation—a portion of the waterway that had not been dredged in full since 1982. Bowser

Decl. Ex. J at 73, ECF No. 80-9 (the resolicitation stating, “[p]ortions of the marina boat basin

have not been dredged since 1982.”).

Plaintiff submitted the lowest bid on 25 August 2014. Def.’s Cross-MSJ at 7. Plaintiff

has over 60 years of experience dredging ports, rivers, and waterways, averaging 200,000 cubic

yards dredged annually. Decl. of Joseph Bernert in Supp. of Pl.’s Mots. for Summ. J. (“Bernert

Decl.”) Ex. H at 63–64, ECF No. 81-1 (plaintiff’s interrogatory response). On numerous

government dredging contracts, plaintiff received an “excellent” contract performance rating. Id.

at 64. Plaintiff owns all its dredging equipment, including pumps, augers, and clamshells. Tr. at

12:10–13:2 (plaintiff’s counsel explaining MIC does not have to rent equipment). Despite

plaintiff’s experience as a veteran dredging contractor, plaintiff did not perform a site visit to

inspect surface and subsurface materials prior to submitting its bid, although this was its “usual

practice.” Def.’s Cross-MSJ at 5 (citing Def.’s Cross-MSJ App. at 405 (deposition of MIC

employee Michael Eakin at 29:9–11 (excerpts) (stating “nobody from MIC did a site visit prior”

to plaintiff submitting its bid)), 356–57 (deposition of MIC co-owner Joseph Bernert at 22:22–

23:9 (excerpts) (confirming plaintiff’s “usual practice” is to “walk a job”))); Tr. at 10:15–19

(plaintiff’s counsel explaining plaintiff possessed “internal knowledge” of the site from a job

years prior). Plaintiff also did not review bidder inquiries in the solicitation, although it usually

did so. Def.’s Cross-MSJ at 6 (citing Def.’s Cross-MSJ App. at 314–16 (deposition of MIC

employee Michael Harrison at 121:19–123:12 (excerpts) (testifying reviewing the bidder

inquiries “most likely” would have “impacted [his] decision to either make the bid or how much

[he] bid”)), 359 (deposition of MIC co-owner Joseph Bernert at 25:2–13 (excerpts) (testifying

plaintiff would “usually look at bidder inquiries that come in during the solicitation”))).

Plaintiff’s low bid won the solicitation; the government sent plaintiff a letter requesting it

confirm its bid in writing. Id. at 7–8 (citing Def.’s Cross-MSJ App. at 1–130 (contract), 449

(USACE letter to MIC seeking verification of bid (advising plaintiff its bid was “31% below the

Independent Government Estimate (IGE) and significantly lower than all other bids,” asking it to

“verify its bid in writing,” to check for errors, and describing debris)). Plaintiff moved ahead

without adjusting its submission. Id. at 9 (citing Def.’s Cross-MSJ App. at 295 (deposition of

MIC employee Michael Harrison at 66:6–17 (excerpts)), 397 (deposition of MIC President

David Bernert at 36:11–37:3 (excerpts)), 410 (deposition of MIC employee Michael Eakin at

40:9–14 (excerpts))). The government awarded plaintiff the contract on 12 September 2014. Id.

(citing Def.’s Cross-MSJ App. at 413 (deposition of MIC employee Michael Eakin (excerpts))).

B. The Perfect Storm Strikes

The USACE held a preconstruction conference with plaintiff on 24 September 2014, at

which the USACE issued a notice to proceed. Id. at 10; Tr. at 116:3–7 (government counsel

indicating work conditions in the fall are better than winter). The notice to proceed triggered a

fourteen-day deadline for plaintiff to provide certain required pre-dredging submittals to the

USACE and a 150-day deadline to complete the project. Def.’s Cross-MSJ at 10 (citing Def.’s

Cross-MSJ App. at 39, 75–77 (contract)). Plaintiff did not provide its final submittal until 10

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November 2014, more than one month after the 8 October 2014 deadline. Id. at 12–13 (citing

Def.’s Cross-MSJ App. at 423–24 (deposition of MIC employee Michael Eakin at 72:20–73:21

(excerpts)), 525 (FY2014 Dredging Project Submittal Register), 464 (USACE email to plaintiff

on 14 October 2014, “we really need to see the remaining submittals soon”), 466 (USACE email

to plaintiff on 17 October 2014, “We have not received your submittals (14 days from NTP has

long past) . . . . We have not heard from you regarding these submittals . . . . The weather and

marine conditions will continue to get worse as time slips by . . . .”)). The USACE approved

plaintiff to begin dredging the same day, 10 November 2014, Def.’s Cross-MSJ App. at 525;

then on 18 November 2014, plaintiff began dredging the water way. Tr. at 63:18–25 (plaintiff’s

counsel explaining MIC began dredging the outer channel before encountering weather

conditions that made dredging the outer channel not ideal).

Following this delayed start, plaintiff immediately experienced further delays to its

dredging. On 19 November 2014, plaintiff encountered its first storm event causing six days of

delay to its operation. Pl.’s Suppl. Brief in Supp. of its Mots. for Summ. J. (“Pl.’s Suppl. Br.”) at

2, ECF No. 104 (citing Bernert Decl. Ex. M, ECF No. 81-3 (weather logs and reports of the first

storm event)). Plaintiff faced six more storm events over the remainder of the contract period.

Id. Plaintiff encountered additional delays related to problems with its equipment, including a

faulty crane and dredging pumps. Def.’s Cross-MSJ at 13–15 (citing Def.’s Cross-MSJ App. at

485–86 (MIC internal email regarding La Push project failures), 501 (MIC internal email

regarding equipment issues)). More delays ensued when floating logs damaged plaintiff’s

discharge pipes. Id. at 15–16 (first citing Pl.’s Mots. for Summ. J. (“Pl.’s MSJ”) at 17–20, ECF

No. 79; and then citing Def.’s Cross-MSJ App. at 311–13 (deposition of MIC employee Michael

Harrison at 114:20–116:15–21 (excerpts)), 419 (deposition of MIC employee Michael Eakin at

66:19–25 (excerpts))). Plaintiff also created delays of its own by taking extended breaks from

dredging the waterway throughout the contract period. Id. at 18 (citing Def.’s Cross-MSJ App.

at 425–26 (deposition of MIC employee Michael Eakin at 76:12–77:12 (“those breaks [were]

longer than would normally be expected under these circumstances”))).

On 30 December 2014, without finishing the inner and outer channels of the waterway,

plaintiff began dredging the boat basin. Second Suppl. Decl. of David H. Bowser in Supp. of

Pl.’s Reply & Resp. (“Second Bowser Decl.”) Ex. W at 12, 63 (the Quileute Tribe expressing the

importance of dredging the boat basin during this contract), ECF No. 88-2; Tr. at 66:23–67:9

(plaintiff’s counsel explaining MIC stopped dredging to start on the boat basin as soon as

possible). The dredging delays worsened. On a near daily basis for the following two months of

dredging, plaintiff encountered debris in the boat basin that clogged and disabled plaintiff’s

dredging equipment. See Bernert Decl. Ex. L, ECF No. 81-2 (daily construction reports from

November 2014 to February 2015). Plaintiff also encountered clay in the basin it was ill-

equipped to dredge. Tr. at 103:21–105:11 (explaining the difficulty of dredging clay without a

cutterhead, “it’s like using a straw in . . . ice cream”). Examples of the debris plaintiff attempted

to suction up include tires, rubber, wire, plastic, hose, metal, boat parts, nets, and cable. See

Ex. L (daily construction reports from November 2014 to February 2015). The various debris

would “plug[] up the Toyo pumps” or get “wrapped up in the auger of the Mud Cat.” Tr. at

19:8–15. “[A]t a minimum, [plaintiff] would [then] have to raise up the equipment to take [the

debris] out” of its equipment. Tr. at 19:21–22. Occasionally, the debris would make it through

the equipment, only to create a clog in plaintiff’s discharge pipe, forcing plaintiff to cease

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dredging “to raise up a section of the sunken pipe and try to get it out.” Tr. at 20:1–11. Each

stoppage would often cost plaintiff hours. See Ex. L (daily construction reports from November

2014 to February 2015). Plaintiff attempted to remedy the problem by using a mechanical

clamshell to remove the debris, but the USACE denied the request “due to the environmental

constraints.” Tr. at 18:3–13. Plaintiff was unfortunately without access to a cutterhead dredge,

which may have been the solution to its problem. Tr. at 13:7, 92:16–19, 103:21–104:5 (quoting

USACE project manager John Pell, “[without a cutterhead, i]t doesn’t pump as efficiently”).

On 13 January 2015, the government issued a cure notice. Def.’s Cross-MSJ at 19 (citing

Def.’s Cross-MSJ App. at 508 (USACE cure notice letter to MIC)). Plaintiff initially responded

on 21 January 2015 with a list of actions it was taking to improve production; the next day,

plaintiff sent another letter alleging differing site conditions. Id. (citing Def.’s Cross-MSJ App.

at 509–10 (MIC letter to USACE responding to cure notice), 511–17 (MIC letter to USACE

labeled Serial Letter 0001)). This allegation was related to unexpected debris in the boat basin

but said nothing about weather or clay content. Id. (citing Def.’s Cross-MSJ App. at 511–17

(MIC letter to USACE labeled Serial Letter 0001)). Plaintiff continued to perform behind

schedule, and the government issued a show cause letter on 29 January 2015. Id. at 20 (citing

Def.’s Cross-MSJ App. at 518–19 (USACE letter to MIC inviting MIC to show cause why

USACE should not terminate the contract for default)). The government ultimately terminated

the contract for default on 27 February 2015. Id. (citing Def.’s Cross-MSJ App. 520–21

(USACE letter terminating the contract for default)). This termination was 156 days into the

project, six days past the deadline; plaintiff had dredged 13,011 cubic yards of the required

79,000. Id. (citing Second Am. Compl., ECF No. 20, Ex. 2 at 8).

C. The Aftermath of The Storm

On 1 March 2015, “the fish window open[ed].” Tr. at 111:8–23. The “fish window” is

the annual period between 1 March and 1 September when no dredging can occur due to

“environmental concerns” related to local species of fish. Id. Due to the “fish window,” the

waterway dredging remained unfinished for six months while the government issued a new

solicitation for the contract. See Ex. J (2015 resolicitation).

The solicitation for 2015, Solicitation W912DW-15-B-0014 (“the resolicitation”), had

critical differences compared to the 2014 solicitation plaintiff bid on. Compare Def.’s Cross-

MSJ App. at 131–280 (2014 solicitation), with Ex. J (2015 resolicitation). For example, the

resolicitation made prior dredging records and bathymetric soundings available for review. Ex. J

at 10 (2015 resolicitation). In the resolicitation, the government included the pre-2014 warnings

about precipitation for the area and the resultant “fast currents” carrying “[l]arge logs and trees”

likely to arise “with little warning” and cause damage to equipment. Id. at 11. The government

warned in the resolicitation of debris in the boat basin, such as sunken vessels, and stated

“[p]ortions of the marina boat basin have not been dredged since 1982.” Id. at 73. The

resolicitation added a minimum discharge pipe size of twelve inches and required the use of a

cutterhead suction dredge. Id. at 78. The resolicitation further warned of the presence of wire,

metal debris, rope, fishing nets, and tires, as well as a change in disposal site. Id. at 78, 82. The

resolicitation, on its face, stated clay is present in the waterway and removed the requirement

that the contractor remove any sunken vessels. Id. at 78–79. Dredging could begin more quickly

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following the fish window under the structure of the resolicitation. Def.’s Cross-MSJ App. at

131–280 (2014 solicitation); Tr. at 61:10–13 (government counsel explaining the process

allowed for the work to begin as soon as the environment window opened in early September).

The 2014 solicitation contained none of the notices found in the resolicitation. Tr. at 96:22–97:1

(regarding the 2014 solicitation, “THE COURT: . . . [T]his procurement was changed with less

warnings or concerns in order to increase bidding, correct? [GOVERNMENT]: That was the

goal.”).

On 27 August 2015, the government awarded the resolicitation to the reprocurement

contractor who had “predominantly dredged” the waterway “for many years” before plaintiff’s

2014 contract. Def.’s Cross-MSJ App. at 524 (2015 contract milestones); Tr. at 93:21–23. The

reprocurement contractor began dredging with a cutterhead on 25 September 2015. Def.’s

Cross-MSJ App. at 524 (2015 contract milestones); Tr. at 94:1 (plaintiff’s counsel explaining the

reprocurement contractor used its own cutterhead dredge). On 5 November 2015, the

reprocurement contractor finished the job; it did so for “nearly $7,000 less than the contract

awarded to [plaintiff].” Def.-Counterclaimant’s Reply in Supp. of Cross-Mot. for Summ. J.

(“Def.’s Reply”) at 23, ECF No. 90; Tr. at 90:7–18 (government counsel stating, “I’m sure

[plaintiff’s dredging] made it a little bit easier [for the reprocurement contractor].”).

While the government reprocured the dredging contract, on 1 July 2015, plaintiff

requested a Contracting Officer’s Decision on four claims to costs and delay days for: (1) the

period between contract award and notice to proceed issuance; (2) severe weather and log traffic;

(3) miscellaneous debris; and (4) clay content. Ex. T at 1, ECF No. 85-2 (Contracting Officer’s

Decision). On 15 April 2016, the contracting officer issued his final decision, finding plaintiff

was not entitled to any of its claimed relief. Id. at 18.

II. Procedural History

On 13 October 2015, plaintiff sued the government for breach of contract, arguing the

government wrongfully terminated the contract because plaintiff’s delay was excusable. See

Compl. at 1–3, ECF No. 1. Plaintiff requested the Court “[c]onvert[] the [government’s]

termination for default to a termination for convenience” and “award[] [plaintiff] fees pursuant to

the Equal Access to Justice Act.” Id. at 3. Plaintiff filed a first amended complaint on 1 July

2016 and sought “$638,260.81 in additional costs caused by USACE’s breach of warranty, the

differing site conditions encountered, and USACE’s failure to disclose its superior knowledge,”

plus interest and fees, along with additional time to perform the contract. See First Am. Compl.

at 7, ECF No. 10. On 16 January 2017, plaintiff filed a second amended complaint. See Second

Am. Compl. This complaint asserts three counts: (1) breach of contract for denial of a valid

claim, requesting the Court find plaintiff encountered 117.5 days of excusable delay and award

plaintiff $638,260.81 and “an additional 80.5 days to complete the work”; (2) breach of contract

for improper termination of default, requesting the Court convert the government’s termination

for default “to a termination for convenience”; and (3) breach of contract for improper demand

of payment, requesting the Court find the government’s demand for $1,031,751.50 wrongful and

set it aside. Id. at 7–9. On 6 July 2018, the government filed a first amended answer to

plaintiff’s second amended complaint and asserted a counterclaim for $1,031,751.50 plus interest

for “excess reprocurement costs, administrative costs and liquidated damages demanded by the

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contracting officer’s final decision . . . .” First Am. Answer to Second Am. Compl. and

Countercl. at 9, ECF No. 31. On 13 August 2018, plaintiff answered the government’s

counterclaim. See Pl.’s Answer to Def.’s Countercl., ECF No. 40.

Plaintiff moved for summary judgment on 4 May 2020 on the three counts in its second

amended complaint. See Pl.’s MSJ. Also, on 4 May 2020, plaintiff supplemented its motion for

summary judgment with two declarations and various attached exhibits. See Bowser Decl., ECF

No. 80; Bernert Decl., ECF No. 81. On 3 June 2020, the government filed an objection to

inadmissible evidence regarding statements in the two declarations plaintiff offered in support of

its motion for summary judgment. See Def.-Counterclaimant’s Objs. to Inadmissible Evidence

Offered in Support of Pl.’s Mot. for Summ. J. (“Def.’s Objs.”), ECF No. 82. The government

objected to parts of the Declaration of Joseph Bernert, vice president and co-owner of MIC, ECF

No. 81, and Exhibit H to the Declaration of Joseph Bernert, ECF No. 81-1. 3 Id. The government

objected to certain statements of Mr. Bernert and alleged they were based on information

contained in academic literature, hearsay not within the record, and allegations beyond his

personal knowledge. Id. The government also objected to Exhibit H as inadmissible hearsay not

within any exception and to parts of Exhibit H as containing inadmissible lay witness opinion.

Id. On 4 June 2020, the government filed a response to plaintiff’s motion for summary judgment

and cross-motion for summary judgment on the three counts in plaintiff’s second amended

complaint and the counterclaim in its first amended answer. See Def.’s Cross-MSJ at 26, 46.

On 17 June 2020, plaintiff filed a response to the government’s objections, which

requested the Court strike the government’s objections to its declarations as untimely, defended

Mr. Bernert’s testimony as proper Rule 701 lay witness opinion, and, alternatively, moved to

designate Mr. Bernert as an expert witness. See Pl.’s Mot. Strike Def.’s Objections as Untimely,

Opp’n in Resp. to Def.’s Objs. to Inadmissible Evidence Offered in Supp. of Pl.’s Mots. for

Summ. J., and Alternative Mot. to Designate Expert (“Pl.’s Mot. Strike Def.’s Objs.”), ECF No.

84. On 24 June 2020, the government replied in support of the timeliness of its objections,

argued Mr. Bernert should not be able to give lay testimony, and stated it was too late in the

proceedings for plaintiff to declare Mr. Bernert an expert witness. See Def.-Counterclaimant’s

Reply in Support of Objs. to Inadmissible Evidence Offered in Support of Pl.’s Mot. for Summ.

J., ECF No. 86. On 27 June 2020, plaintiff replied in support of its motion for summary

judgment and in response to the government’s motion for summary judgment. Pl.’s

Consolidated Reply in Supp. of Its Mots. for Summ. J. and Resp. Against Def.’s Mots. for

Summ. J. (“Pl.’s Reply”), ECF No. 87. Plaintiff also argued the Court should not consider the

government’s attachments and exhibits at the summary judgment stage because the government

had not authenticated any of the attachments to its motions. Id. at 2. On 10 July 2020, the

government replied in support of its cross-motion for summary judgment. See Def.’s Reply.

As the parties’ counsel agreed, the Court bifurcated the motions contained within the

cross-motions for summary judgment and addressed the four pending evidentiary issues prior to

3

The government objected to “Exhibit H to the Declaration of David Bowser, Dkt. No. 80” on the first page of its

objection brief, but Item II on page 2 of the brief is directed to “Declaration of David Bowser, Exhibit H, Dkt. No.

81-H).” Def.’s Objs. at 1–2. Exhibit H is attached to the Declaration of Joseph Bernert, ECF No. 81 on the CM-

ECF docket. The government clarified during oral argument it made an error confusing ECF No. 81 with ECF No.

80. See Evidentiary Oral Arg. Tr. at 40:14–41:2, ECF No. 96.

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the summary judgment motions. See Order, ECF No. 93. On 23 September 2020, the Court held

oral argument on the four issues, and on 29 December 2020, the Court ruled on them. See

Evidentiary Oral Arg. Tr.; Order, ECF No. 100. The Court denied plaintiff’s motion to strike the

government’s objections, denied plaintiff’s objection to the government’s exhibits for lack of

authentication, denied plaintiff’s motion to designate its witness as an expert, and granted as to

certain sections the government’s request that the Court disregard alleged inadmissible

statements. Order at 1. In effect, the Order rendered inadmissible paragraphs 4E and 5–12 of

Joseph Bernert’s Declaration. Id. at 26; see Bernert Decl. The Court further decided it will not

consider declaration statements taken from Exhibit H, Interrogatory No. 9, and any other

statements in Exhibit H containing analysis of weather patterns and sediment content not based

on personal knowledge. Order at 26. The parties then requested supplemental briefing on the

cross-motions for summary judgment in a joint status report (“JSR”), which the Court ordered on

24 February 2021. See JSR, ECF No. 101; Order, ECF No. 103. On 31 March 2021, plaintiff

filed its supplemental brief, noting the Court’s 29 December 2020 Order did not eliminate any of

plaintiff’s motions for summary judgment and had no impact on its earlier reply in support of its

motion for summary judgment and in response to the government’s motion for summary

judgment. Pl.’s Suppl. Br. at 1, 6. On 14 April 2021, the government filed its response to

plaintiff’s supplemental brief. See Def.-Counterclaimant’s Resp. to Pl.’s Suppl. Br. in Supp. of

Mots. for Summ. J. (“Def.’s Suppl. Br.”), ECF No. 105. On 22 June 2021, plaintiff filed its reply

supplemental brief. See Pl.’s Reply Suppl. Brief, ECF No. 109.

On 22 June 2021, plaintiff filed a motion requesting the Court “conduct a viewing of the

project site at La Push, Washington, namely the Boat Basin, Inner Channel, and Outer Channel

in order to aid its understanding of the arguments raised by [d]efendant regarding what could be

observed during any pre-bid site view.” Pl.’s Mot. for Site View at 4–5, ECF No. 110. The

government filed its response in opposition to the motion for site view on 2 July 2021, and

plaintiff filed its reply on 13 July 2021. See Def.-Counterclaimant’s Opp’n to Pl.’s Mot. for Site

View, ECF No. 111; Pl.’s Reply in Supp. of Mot. for Site View, ECF No. 112. On 23 July 2021,

the Court granted MIC’s motion for site view, finding “[a] site visit w[ould] help the Court

understand unique conditions at the project location, such as the topography of the river and

basin at issue, and add context to the photographic evidence included in the briefing.” Order at

7, ECF No. 113. The parties filed a JSR on 30 July 2021 proposing early October for the site

visit. JSR at 1, ECF No. 114. The parties confirmed in a status conference on 30 August 2021

an October site visit would present the same conditions as what could have been observed during

any pre-bid site viewings in August 2014. See Order, ECF No. 115. On 24 September 2021, the

parties filed a JSR including numerous photographic exhibits and a map with agreed upon points

of interest to guide the Court on the site visit and explain how the various locations relate to the

parties’ summary judgment briefing. See JSR Re Site Visit Plan, ECF No. 119. The Court then

conducted a site visit of the project site at La Push, Washington, on 4 October 2021 and held oral

argument on the cross-motions for summary judgment on 5 October 2021 in Seattle,

Washington.

III. Summary of the Parties’ Cross-Motions for Summary Judgment

Pending before the Court are the parties’ cross-motions for partial summary judgment.

See Pl.’s MSJ; Def.’s Cross-MSJ. On 29 December 2020, the Court ruled on four evidentiary

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issues which were bifurcated from the motions. See Order. All the parties’ motions for

summary judgment remain. See Order; Pl.’s Suppl. Br.

Plaintiff submits nine motions for summary judgment for the Court’s review. See Pl.’s

MSJ at 1–2. First, plaintiff seeks summary judgment on the government’s counterclaim for

excusable delay due to unusually severe weather. Id. at 1. Second, plaintiff seeks summary

judgment on the government’s counterclaim on account of the government’s “substantial and

material changes in the reprocurement solicitation by, in part, limiting the available equipment

that could be used and reinserting substantial and material warnings that increased the costs of

performance.” Id. Third, plaintiff seeks partial summary judgment in favor of its breach of

contract claim and the government’s counterclaim due to the clay it encountered, a differing site

condition, within the materials dredged. Id. Fourth, plaintiff seeks partial summary judgment in

favor of its breach of contract claim and the government’s counterclaim because it encountered

man-made debris and sunken vessels, a differing site condition, in the dredging area. Id. Fifth,

plaintiff seeks partial summary judgment in favor of its breach of contract claim and the

government’s counterclaim for the government withholding superior knowledge of a minimum

necessary pipe size. Id. Sixth, plaintiff seeks partial summary judgment in favor of its breach of

contract claim and the government’s counterclaim for the government withholding its superior

knowledge of “floating log traffic through the project site during weather events that would

damage equipment.” Pl.’s MSJ at 1. Seventh, plaintiff seeks partial summary judgment in favor

of its breach of contract claim and the government’s counterclaim for the government

withholding superior knowledge of man-made debris and sunken vessels in the dredging area.

Id. at 2. Eighth, plaintiff seeks partial summary judgment in favor of its breach of contract claim

and the government’s counterclaim because the government withheld superior knowledge of clay

in the dredging area. Id. Ninth, plaintiff seeks partial summary judgment on the government’s

liquidated damages claim, because they are a penalty as applied to the fish window. Id.

The government cross-motions for summary judgment on each of plaintiff’s nine grounds

for summary judgment and adds six additional motions of its own. Def.’s Cross-MSJ at ii–iii.

The government’s first motion for summary judgment requests the Court to find plaintiff was in

default when the government terminated the contract. Id. at 24. Second, the government

motions for summary judgment on plaintiff’s claim of compensable delay due to plaintiff’s own

concurrent delays. Id. at 26. Third, the government motions for summary judgment on

plaintiff’s entitlement to convert its termination for default due to plaintiff’s failure to comply

with the contract’s notice provisions. Id. at 27. Fourth, the government motions for summary

judgment on plaintiff’s claim to unforeseeable delay due to weather because plaintiff cannot

prove the weather was unusually severe, unforeseeable, or that plaintiff was without fault or

negligence. Id. at 29, 32. Fifth and sixth, the government motions for summary judgment on

plaintiff’s claims to differing site conditions due to clay and debris as plaintiff cannot satisfy the

required elements for the claims. Id. at 33–41. In its seventh motion for summary judgment the

government asks the Court to find the government did not withhold superior knowledge of a 12”

minimum pipe size. Def.’s Cross-MSJ at 41–43. Eighth, ninth, and tenth, the government

motions for summary judgment on plaintiff’s superior knowledge claims related to floating logs,

debris, and clay because information regarding all three was reasonably available to bidders. Id.

at 43–45. Eleventh, the government motions for summary judgment on the validity of the

termination for default since, even if given all the claimed excusable delay, plaintiff still would

-9-

not have finished the contract. Id. at 46. Twelfth, the government motions for summary

judgment on its claim for reprocurement costs arguing the reprocurement contract was not

materially altered, no change impacted the contract price, and plaintiff does not dispute the costs

claimed. Id. at 48. Thirteenth, the government motions for summary judgment on its claim for

administrative costs as they are undisputed. Id. at 48. Fourteenth, the government moves for

summary judgment on its liquidated damages as to the work window because they are

undisputed. Def.’s Cross-MSJ at 49. Fifteenth, the government moves for summary judgment

on its liquidated damages as to the fish window since plaintiff cannot meet its burden of

challenging the agreed upon provision. Id. at 50.

IV. Summary Judgment Standard

Summary judgment is appropriate where the evidence demonstrates there is “no genuine

dispute as to any material fact and that the movant is entitled to judgement as a matter of law.”

RCFC 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986). A genuine issue is

one that “may reasonably be resolved in favor of either party.” Anderson, 477 U.S. at 250. A

fact is material if it might significantly affect the outcome of the suit. Id. at 248. In determining

if summary judgment is appropriate, a court will draw all inferences in the light most favorable

to the nonmoving party. Matsushita Elec. Indus. Co., 475 U.S. at 587. A party seeking

summary judgment bears the burden of establishing the “absence of any genuine issues of

material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (quoting Catrett v. Johns-

Manville Sales Corp., 756 F.2d 181, 184 (D.C. Cir. 1985), rev’d sub nom. Celotex Corp. v.

Catrett, 477 U.S. 317 (1986)).

When the moving party has met this burden, the burden shifts and the nonmovant must

point to sufficient evidence to show a dispute exists over a material fact allowing a reasonable

fact finder to rule in its favor. Anderson, 477 U.S. at 256–57. The evidence need not be

admissible, but mere denials, conclusory statements, or evidence that is merely colorable or not

significantly probative will not defeat summary judgment. Celotex, 477 U.S at 324.

This Court reviews an agency’s termination for default de novo. 41 U.S.C. § 7104(b)(4);

see also Seaboard Lumber Co. v. United States, 903 F.2d 1560, 1562 (Fed. Cir. 1990). “In

determining whether a default termination was justified, a court must review the evidence and

circumstances surrounding the termination, and that assessment involves a consideration of

factual and evidentiary issues.” McDonnell Douglas Corp. v. United States, 323 F.3d 1006,

1014 (Fed. Cir. 2003). “As a general matter, government contracting officers have ‘broad

discretion to determine whether to terminate a contract for default.’” Allen Eng’g Contractor

Inc. v. United States, 611 F. App’x 701, 705 (Fed. Cir. 2015) (quoting Lanterman v. United

States, 75 Fed. Cl. 731, 733–34 (2007)).

V. Whether Plaintiff was in Default at Termination

The government begins its cross-motion for summary judgment by asserting plaintiff was

in default at the time USACE terminated the contract. Def.’s Cross-MSJ at 24. The government

claims: “As of one day before the contractual completion deadline, it would have taken

[plaintiff] another 780 days of non-stop dredging at its total rate of production for [plaintiff] to

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complete the project.” Id. Unless plaintiff can prove both its default was excusable and it would

have completed the contract but for the excusable delays, the government argues its termination

for default was appropriate as a matter of law. Id. at 24–25.

Plaintiff argues it was not in default at termination so long as it “can prove that its default

was excusable.” Pl.’s Reply at 8 (quoting Def.’s Cross-MSJ at 24). Plaintiff claims “[e]xcusable

delay precludes default.” Id. In addition, plaintiff argues the government’s cited cases do not

support the proposition that plaintiff must demonstrate it would have completed the contract but

for the excusable delay. Id. at 8–9. The government replies plaintiff’s purported disagreement

on this issue “is illusory,” because plaintiff does not argue it was not in default, rather plaintiff

argues its default was excusable. Def.’s Reply at 3.

When a contractor challenges a default termination, the government bears the initial

burden of showing the contractor was in default at the time the contract was terminated. Lisbon

Contractors, Inc. v. United States, 828 F.2d 759, 765 (Fed. Cir. 1987). “A contractor’s failure to

make timely delivery of agreed-upon goods establishes a prima facie case of default.” Gen.

Injectables & Vaccines, Inc. v. Gates, 519 F.3d 1360, 1363 (Fed. Cir.), opinion supplemented on

denial of reh’g, 527 F.3d 1375 (Fed. Cir. 2008) (citing Nuclear Rsch. Corp. v. United States, 814

F.2d 647, 650 (Fed. Cir. 1987)). The parties’ contract in this case incorporates by reference FAR

52.249-10(a), which states a contractor is in default when it “fails to prosecute the work . . . ,

with the diligence that will insure its completion within the time specified in th[e] contract.” See

Def.’s Cross-MSJ App. at 15 (contract). In such an event, “the Government may, by written

notice to the [c]ontractor, terminate the right to proceed with the work . . . that has been

delayed.” FAR 52.249-10(a). “The burden then shifts to the contractor to show that the failure

to deliver the contract goods was excusable.” Gen. Injectables & Vaccines, 519 F.3d at 1363

(citing DCX, Inc. v. Perry, 79 F.3d 132, 134 (Fed. Cir. 1996)).

Plaintiff’s contract with the USACE to dredge the waterway required it to dredge an

estimated 79,000 cubic yards within 150 days of the notice to proceed, but no later than 28

February 2015. Second Am. Compl. Ex. 2 at 8; Pl.’s Reply at 10; Def.’s Cross-MSJ at 8, 24. As

of 27 February 2015, 156 days after the notice to proceed—six days past the deadline—plaintiff

dredged 13,011 of the 79,000 cubic yards. Second Am. Compl. Ex. 2 at 8; Pl.’s Reply at 10;

Def.’s Cross-MSJ at 24; Def.’s Cross-MSJ App. at 139 (2014 solicitation). Although the parties

dispute how many additional days plaintiff needed to complete the contract, no party argues

plaintiff finished dredging within the allotted 150 days or would have finished dredging by 28

February 2015. Pl.’s Reply at 10 (arguing 117.5 additional days would be sufficient); Def.’s

Cross-MSJ at 24 (arguing 780 more days was needed). Plaintiff even conceded it was “not in

compliance with the contract at the time of termination.” Tr. at 155:2–12 (plaintiff’s counsel

stating, “we’re not arguing that February 28th, all work was done”). Accordingly, the Court

finds no dispute of material fact that plaintiff was in default at the time the USACE terminated

the contract. 4 Lisbon Contractors, Inc., 828 F.2d at 765; Matsushita, 475 U.S. at 587. The Court

grants the government’s motion for summary judgment on this issue. Def.’s Cross-MSJ at 24.

4

For the first time at oral argument, plaintiff argued the termination for default was an abuse of discretion by the

contracting officer and an arbitrary and capricious decision. Tr. at 106:6–110:11 (discussing the standard for

invalidating a termination for default, “[THE COURT:] Does MIC make that argument in its briefs? [PLAINTIFF]:

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VI. Whether Conversion to Termination for Convenience is Warranted

After finding the government carried its initial burden of showing plaintiff was in default

at the time the contract was terminated, the burden shifts to plaintiff to prove its default was

excusable. See supra Section V; Lisbon Contractors, Inc., 828 F.2d at 765; Gen. Injectables &

Vaccines, 519 F.3d at 1363 (quoting FAR 52.212-4(f)) (an excusable delay is “caused by an

occurrence beyond the reasonable control of the [c]ontractor and without its fault or

negligence”). Plaintiff moves for summary judgment on various grounds for excusable delay

and breach of contract to justify converting the government’s termination for default into a

termination for convenience. Pl.’s MSJ at 1–2; see Second Am. Compl. at 8; see Engineered

Maint. Servs., Inc. v. United States, 55 Fed. Cl. 637, 641 (2003) (citing FAR 49.201) (“For

terminations of convenience, the parties will seek to negotiate an agreement that will compensate

the contractor . . . for the work done and preparations made for the terminated portion of the

contract.”), aff’d, 89 F. App’x 267 (Fed. Cir. 2004). The government likewise moves for

summary judgment on these issues “[b]ecause [plaintiff] cannot meet its burden of proof as to

any of its asserted grounds for excusable delay under the undisputed facts of this case.” Def.’s

Cross-MSJ at 26. Each basis for summary judgment on these issues and the parties’ related

arguments are laid out in the subsections below. 5

A. Whether Plaintiff Failed to Timely Notify USACE of Delay, Precluding its

Recovery

The government requests the Court deny plaintiff’s excusable delay and differing site

condition claims because plaintiff failed to comply with the contract’s notice provisions: FAR

I don’t think it’s that clear, Your Honor. I think it might be mixed in with some other stuff . . . .”). Without making

the arguments in its briefs, plaintiff asserts it “put in the record evidence,” Tr. at 107:7, and cited a case for the

arbitrary and capricious standard. Tr. at 106:19–25; Pl.’s MSJ at 5 (citing Darwin Constr. Co. v. United States, 811

F.2d 593, 596 (Fed. Cir. 1987)) (“The contracting officer, however, must not make the decision to terminate for

default in an arbitrary and capricious manner.”). Plaintiff has not motioned for summary judgment on this issue, nor

has either party briefed it; accordingly, the Court does not decide whether the contracting officer abused her

discretion here. The Court notes, however, it reviews an agency’s termination for default de novo. 41 U.S.C. §

7104(b)(4); see also Seaboard Lumber Co., 903 F.2d at 1562.

5

As the government notes, it is unclear from plaintiff’s briefing when plaintiff is arguing excusable delay as a

defense to termination for default, when plaintiff is arguing it encountered differing site conditions to obtain an

equitable adjustment, and when plaintiff is simultaneously asserting both. Def.’s Cross-MSJ at 26 n.10. In addition,

there was confusion at oral argument as to the difference between a claim for excusable delay under FAR 52.249-

10(b)(2) and a claim for a differing site condition under FAR 52.236-2(a). Tr. at 136:20–137:23 (plaintiff stating a

claim for a differing site condition is in “a separate section” of the FAR; “[i]t’s not in the excusable delay section.”

Plaintiff continued, “we’re not talking about the actual [differing site condition] claim . . . at this point. We’re

talking about whether or not things happened without the fault of the contractor that excused the termination[,

excusable delay].”); Tr. at 139:12–15 (plaintiff clarifying a “differing site claim . . . would be a claim for

compensation for a differing site condition,” separate from “an excusable delay analysis”); but see Pl.’s MSJ at 38–

39, 41–54, 59 (tallying up the delay due to clay and debris while requesting the Court find plaintiff encountered

differing site conditions). To the extent plaintiff is arguing multiple defenses together, the Court analyzes the merits

of each separately. For clarity, the Court notes the parties’ cross-motions for partial summary judgment only ask the

Court to assess excusable delay for severe weather, and differing site conditions for clay and debris. Pl.’s MSJ at 1;

Def.’s Cross-MSJ at ii. The Court’s findings regarding excusable delay and differing site conditions in this Opinion

are therefore limited to these three separate claims.

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52.249-10 and FAR 52.236-2. Def.’s Cross-MSJ at 27–28. The government asserts plaintiff

“ignores FAR 52.249-10(b)(2)’s requirement that MIC notify the contracting officer ‘in writing,’

‘within 10 days from the beginning of any delay’” “due to ‘unforeseeable causes beyond the

control and without the fault or negligence of the Contractor.’” Id. The government argues

plaintiff failed to provide written notice of delay due to debris, differing site conditions, weather,

log traffic, or clay until well after the ten days allowed by the contract for claiming excusable

delay. Id. at 27–28. In addition, the government states FAR 52.236-2, the differing site

conditions provision, required plaintiff to promptly, and before the conditions are disturbed, give

written notice of such conditions. Id. at 28. The government asserts plaintiff “failed to provide

the required ‘prompt’ notice before disturbing the physical conditions relating to clay and debris

. . . , depriving USACE of the opportunity to ‘investigate the site conditions promptly after

receiving the notice.’” Id. at 28–29 (quoting FAR 52.236-2(b)). The government lastly argues

plaintiff cannot prove “USACE was not prejudiced by [plaintiff]’s failure to provide timely

notice, which ‘effectively prevented any verification of [plaintiff’s] claim and also the

employment of alternate remedial procedures.’” Id. at 29 (quoting Renda Marine, Inc. v. United

States, 66 Fed. Cl. 639, 650 (2005)).

Rather than argue compliance with the contract’s notice provisions, plaintiff’s briefing

argues lack of notice is not a defense to its claims because the government waived the defense,

the government had actual knowledge of the issues, and no prejudice resulted. Pl.’s Reply at 4–

6. Plaintiff asserts USACE “waived any 10-day notice requirement by accepting MIC’s claim[s]

and denying the claim[s] on the merits instead of rejecting them for lack of notice.” Id. (citing

K-Con Bldg. Sys., Inc. v. United States, 131 Fed. Cl. 275, 321–22 (2017)). Additionally, plaintiff

claims USACE had actual knowledge of the weather, debris, clay, log traffic, and sunken vessels

causing plaintiff’s claimed excusable delay. Id. at 5 (citing numerous USACE produced

documents in Second Suppl. Decl. of David H. Bowser Ex. W, ECF No. 88-2). Plaintiff avers

USACE cannot show any actual prejudice resulted from the lack of notice because the issues

causing excusable delay would have been unchanged by prompt notice. Id. at 5–6. Lastly, at

oral argument, plaintiff argued for the first time it provided sufficient notice. Tr. at 70:7–71:11

(citing Ex. W at 2, 9, 22, 41, 50, 51) (plaintiff’s counsel responded to the Court, “I would say

that it would be [satisfactory notice] . . . they make note that [plaintiff] complains of excessive

debris causing frequent downtimes. The Corps mentions the change[d] conditions.”); Tr. at

164:11–165:3 (citing Ex. W at 40) (plaintiff asserted it gave notice of weather on 20 November

2014).

The Court will first assess the sufficiency of plaintiff’s notices regarding excusable delay

and differing site conditions. The Court will then address plaintiff’s lack of notice defenses:

waiver and constructive notice. The Court notes, however, it finds infra plaintiff failed to

support its unusually severe weather excusable delay claim and failed to establish its clay

differing site condition claim. Infra Sections VI.B., VI.C.1. Notice with respect to these two

claims is therefore moot because the claims fail on the merits. See Hoel-Steffen Constr. Co. v.

United States, 456 F.2d 760, 768 (Ct. Cl. 1972) (remanding for consideration of the merits after

finding the notice defense fails); Engineered Maint. Servs., Inc., 55 Fed. Cl. at 641 (declining to

consider the merits after finding insufficient notice). To be thorough and fully address the

parties’ cross-motions for summary judgment, the Court will still analyze plaintiff’s notice with

respect to unusually severe weather and clay.

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1. Whether Plaintiff’s Notice Satisfies The FAR

Before showing plaintiff’s delay in completing the work was excusable, plaintiff must

demonstrate, “within 10 days from the beginning of any delay . . . , [it] notifie[d] the Contracting

Officer in writing of the causes of delay.” FAR 52.249-10(b)(2) (incorporated by reference into

the parties’ contract, Def.’s Cross-MSJ App. at 15). Before establishing plaintiff encountered

type 1 differing site conditions, it must demonstrate that it “promptly, and before the conditions

[we]re disturbed, g[a]ve a written notice to the [c]ontracting [o]fficer of (1) subsurface or latent

physical conditions at the site which differ materially from those indicated in th[e] contract.”

FAR 52.236-2(a) (incorporated by reference into the parties’ contract, Def.’s Cross-MSJ App. at

15). “No request by the [c]ontractor for an equitable adjustment to the contract under this clause

shall be allowed, unless the [c]ontractor has given the written notice required.” FAR 52.236-

2(c).

The Court is to apply the contract’s notice provisions “with a certain measure of

flexibility.” K-Con Bldg. Sys., Inc., 131 Fed. Cl. at 321.

To adopt [a] severe and narrow application of the notice requirements . . . would be

out of tune with the language and purpose of the notice provisions, as well as with

this court’s wholesome concern that notice provisions in contract-adjustment

clauses not be applied too technically and illiberally where the [g]overnment is

quite aware of the operative facts.

Hoel-Steffen Constr., 456 F.2d at 767–68 (citing Copco Steel & Eng’g Co. v. United States, 341

F.2d 590, 598 (Ct. Cl. 1965)); see also Thompson v. United States, 91 Ct. Cl. 166, 179 (1940).

“[T]he notice need not be in any particular form (despite the FAR requirement of a writing) so

long as it is sufficient to generally inform the [g]overnment of the facts surrounding the claim.”

Engineered Maint. Servs., Inc., 55 Fed. Cl. at 641 (citing Dawco Constr., Inc. v. United States,

18 Cl. Ct. 682, 693 (1989), aff’d in part, rev’d in part, 930 F.2d 872 (Fed. Cir. 1991)). “Mere

notice or knowledge that the contractor encountered a ‘condition’ falls short of the contractual

requirement that the contractor notify the [g]overnment that it considered the condition to

constitute a ‘differing site condition.’” Engineered Maint. Servs., Inc., 55 Fed. Cl. at 641–42

(citation omitted). “[O]nce [such] notice is given it need not be given again when the same

conditions recur on the site.” Renda Marine, Inc., 66 Fed. Cl. at 650 (quoting Dawco Constr.,

Inc., 18 Cl. Ct. at 693).

a. Plaintiff’s Notice of Delay Due to Unusually Severe Weather

At oral argument, plaintiff provided the Court with one example of giving the

government notice of weather encountered. Tr. at 164:11–165:3 (citing Ex. W at 40) (plaintiff

asserting it gave notice of weather on 20 November 2014); see also Pl.’s Reply at 5 (listing six

examples of the government’s knowledge of weather conditions but providing no examples of

plaintiff giving notice as to unusual severity or delay). On 19 November 2014, plaintiff

encountered its first storm event. Pl.’s Suppl. Br. at 2. On 20 November 2014, plaintiff emailed

the USACE contracting officer: “Due to the severe weather and wave action that is forecasted

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for the rest of this week MIC will be altering its process for dredging. [Plaintiff] was forced to

shut down dredging operations of the outer channel yesterday and has moved to the inner

channel . . . .” Ex. W at 40 (plaintiff’s email announcing the altered MIC schedule and forced

shutdown of dredging operations due to severe weather).

While the Court is to apply the FAR 52.249-10(b)(2) notice provision with flexibility,

plaintiff’s alleged notice to the USACE as to unusually severe weather fails to inform the

government that completion of the contract would be delayed by an unforeseeable cause. Id.;

K-Con Bldg. Sys., Inc., 131 Fed. Cl. at 321; see Tr. at 165:12–14 (government counsel stating,

“There’s no dispute . . . [plaintiff] told the Corps, [w]eather is impacting our performance. That

doesn’t mean that the weather was unforeseeable. That doesn’t mean that the weather was

unusual.”). Plaintiff’s notice does not indicate progress would be affected at all by the weather;

rather, the email states plaintiff is adopting an alternative plan that will “allow[] dredging

operations to continue despite unsafe conditions.” Ex. W at 40 (plaintiff’s email announcing the

altered MIC schedule). Moreover, describing the weather encountered as severe does not

necessarily mean the weather is “unusually” so, or “unforeseeable,” as the contract requires.

FAR 52.249-10(b)(1). Even assuming describing the weather as severe is sufficient notice of an

“unforeseeable cause[]” of delay, id., plaintiff’s email goes on to explain most of its crew is

taking a break from dredging for Thanksgiving anyway. Ex. W at 40 (plaintiff’s email stating

“[d]redging operations will start again . . . following the holiday.”). If plaintiff intended for its

email to the contracting officer to constitute notice of delay due to an unforeseeable cause,

plaintiff should have said as much, rather than attributing any slow in progress to a holiday

break. See id. Reviewing plaintiff’s email in full, it does not notify the government that plaintiff

encountered delay due to unforeseeable causes. FAR 52.249-10(b)(1); see Engineered Maint.

Servs., Inc., 55 Fed. Cl. at 641–42.

Plaintiff failed to provide the Court with any other evidence it complied with the

contract’s notice provision regarding delay due to unusually severe weather. See Pl.’s Reply at 5

(plaintiff does not argue it provided sufficient notice). Accordingly, the Court finds no dispute

of material fact that plaintiff failed to comply with the contract’s notice provision, FAR 52.249-

10(b)(2), for excusable delay arising from unusually severe weather. See Engineered Maint.

Servs., Inc., 55 Fed. Cl. at 641–42; Anderson, 477 U.S. at 250; Def.’s Cross-MSJ at 27. The

Court discusses the government’s waiver of the FAR 52.249-10(b)(2) notice requirements infra

Section VI.A.2. The Court then finds plaintiff failed to support its unusually severe weather

excusable delay claim. Infra Section VI.B.

b. Plaintiff’s Notice of Debris

At oral argument, plaintiff provided the Court with six examples of communications

regarding debris that allegedly satisfy the contractual notice provisions. Tr. at 70:7–71:11

(plaintiff’s counsel citing Ex. W at 2, 9, 22, 41, 50, 51 (emails and one conference call meeting

minutes)). Although plaintiff does not argue sufficient notice in its briefing, plaintiff’s citations

to the record regarding actual knowledge show additional USACE communications regarding

man-made debris, including sunken vessels. Pl.’s Reply at 5 (citing Ex. W at 30, 37, 44, 48, 70

(emails between plaintiff and USACE)). The earliest of these communications occurred on 5

January 2015. Ex. W at 44 (plaintiff’s 5 January 2015 “status of dredging” email to USACE).

- 15 -

i. The Debris Timeline

Plaintiff’s first encounter with debris occurred on 20 November 2014 at the Coast Guard

station outside the boat basin. See Pl.’s MSJ at 41 (20 November 2014 debris event indicating

cables and gill nets found at Coast Guard station (citing to Ex. L at 1–4, ECF No. 81-2 (daily

construction reports from 20 November 2014))). Without considering the sufficiency of

plaintiff’s communications, there are 46 days between plaintiff’s first claimed debris event and

plaintiff’s first communication to the USACE regarding the presence of debris in the waterway.

Compare Pl.’s MSJ at 41 (20 November 2014 debris event at coast guard station) with Ex. W at

44 (plaintiff’s 5 January 2015 “status of dredging” email to USACE). A lapse of 46 days

exceeds the ten-day notice window for excusable delay. FAR 52.249-10(b)(2). A lapse of 46

days is also not “prompt[], and before the conditions [we]re disturbed,” as required for a

differing site condition claim. FAR 52.236-2(a); see Pl.’s MSJ at 41 (photo of plaintiff pulling

the debris out of the water, therefore disturbing that particular condition); Promptly, Merriam-

Webster.com Dictionary, https://www.merriam-webster.com/dictionary/promptly (last visited

Feb. 9, 2022) (“without delay[,] very quickly or immediately”). Prompt notice enables the

government to verify plaintiff’s claims and potentially employ “alternate remedial procedures”—

the government had no such opportunity with respect to the 20 November 2014 debris. Schnip

Bldg. Co. v. United States, 645 F.2d 950, 959 (Ct. Cl. 1981). Accordingly, with regard only to

plaintiff’s excusable delay and differing site condition claims for the 20 November 2014 debris

event, plaintiff failed to comply with the contractual notice provisions. FAR 52.236-2(a),

52.249-10(b)(2). The Court discusses the government’s waiver of the notice requirements for

excusable delay and differing site conditions due to debris infra Section VI.A.2.

Plaintiff claims 46 additional debris events occurred on or after 30 December 2014 while

plaintiff was dredging in a different area—the boat basin. See Pl.’s MSJ at 41–54 (claiming no

delay due to debris between 20 November 2014 and 30 December 2014); Ex. W at 12 (6 January

2015 progress update reporting “lots of debris (derelict fishing nets, wire rope, tires, etc[.)] are

requiring frequent shut downs to clear the dredge pump.”); Tr. at 66:23–67:9 (plaintiff’s counsel

explaining the dredging was stopped in an effort to get started on the boat basin as soon as

possible). Given all but one of plaintiff’s 47 debris claims, or 98%, occurred on 30 December

2014 or later, and at a different site (inside the boat basin), the Court applies the contract’s notice

provisions “with a certain measure of flexibility” and finds plaintiff’s claims to excusable delay

and differing site conditions due to debris are chronologically divisible. See K-Con Bldg. Sys.,

Inc., 131 Fed. Cl. at 321. The singular four-hour delay due to artificial debris on 20 November

2014 likely would not alone give rise to claims for excusable delay or differing site conditions.

FAR 52.236-2(a), 52.249-10(b)(2). To start the notice clock on plaintiff’s claims for excusable

delay and differing site conditions on 20 November 2014 as the government argues, when 98%

of debris was not encountered until 30 December 2014 or later in a separate area of the

waterway, Pl.’s MSJ at 41–54, would be contrary to this court’s precedent and would work an

injustice on plaintiff. See, e.g., Hoel-Steffen Constr., 456 F.2d at 767–68 (“To [strictly apply] the

notice requirements . . . would be out of tune with the language and purpose of the notice

provisions, [and] with this court’s wholesome concern that notice provisions in contract-

adjustment clauses not be applied too technically . . . where the [g]overnment is quite aware of

the operative facts.”). Accordingly, the Court assesses notice of the boat basin debris events

- 16 -

separately. To be entitled to excusable delay for the remainder of the claimed debris events,

plaintiff’s communications to the USACE occurring on or before 9 January 2015 must satisfy

FAR 52.249-10(b)(2). To be entitled to a differing site condition claim for the remainder of the

claimed debris events, plaintiff’s communications to the USACE must have occurred promptly

and before the conditions were disturbed. FAR 52.236-2(a).

Plaintiff’s first debris-related communication was on 5 January 2015 and in response to a

status inquiry from the USACE project manager: “Material is pumping well when we are not

hitting debris. We are constantly pulling up items such as tires, building material, ropes and nets.

On Saturday, we had to stop 6 times to remove debris from the pump.” Ex. W at 44 (plaintiff’s 5

January 2015 “status of dredging” email to USACE). Plaintiff’s email to the USACE project

manager and contracting officer continued, “[plaintiff] feels a conversation needs to be had with

regard to the amount of artificial debris being found in the Boat Basin. An item here and there

was anticipated but we are constantly finding material.” Id.; Tr. at 168:19–23 (“[USACE project

manager] Mr. Pell came out [at least once per week and] looked at us dealing with the debris

clog. He snapped some pictures of piles of debris . . . . And then they just proceeded to move

forward, deal with it kind of thing.”); Ex. A at 8 (deposition of USACE project manager John

Pell at 56:8–57:15 (excerpts)) (stating he visited the project site at least once per week and would

usually observe MIC deal with debris clogs). On 7 January 2015, plaintiff again emailed the

USACE stating, “[plaintiff] has made the USACE and the Tribe aware of the artificial debris,

and other possible pollutants, that is in the marina.” Ex. W at 41. In another 7 January 2015

email to the contracting officer, plaintiff stated:

As per your contract officer we cannot bring in an excavator or any other means of

mechanical dredging to remove the artificial debris that we were somehow,

magically supposed to know was there prior to the bidding process. The [M]ud

[C]at and the [T]oyo function fine but no hydraulic dredge will remove the artificial

debris that is currently in the marina.

Id. at 50. On 8 January 2015, the USACE contracting officer internally sent an email regarding

plaintiff stating: “The dredge Contractor of the existing maintenance contract is failing and we

. . . expect a claim from the contractor for changed conditions, part of which may be allowed.”

Id. at 70. Lastly, on 22 January 2015, plaintiff submitted an official claim for a differing site

condition due to debris to the USACE. Id. at 30–36.

ii. Excusable Delay

Regarding notice of excusable delay under FAR 52.249-10(b)(2), three of plaintiff’s

January emails discussed supra occurred within ten days of plaintiff beginning boat basin

dredging. Ex. W at 41, 44, 50 (5 & 7 January 2015 emails between plaintiff and USACE). The

communications informed the USACE plaintiff is experiencing significant delay due to the

debris, the amount of which plaintiff did not anticipate and was ill-equipped to handle. Ex. W at

44, 50 (explaining six stoppages in one day, the amount debris being unanticipated, and that a

hydraulic dredge is insufficient). The government understood the significance of what plaintiff

was communicating as the contracting officer acknowledged the difficulty plaintiff was having

and the potential claims that may come as a result. Id. at 70. Plaintiff’s communications

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therefore properly put the government on notice plaintiff was encountering delay due to causes it

deemed unforeseeable. Engineered Maint. Servs., Inc., 55 Fed. Cl. at 641–42 (citing Dawco

Constr., Inc., 18 Cl. Ct. at 693) (“[T]he notice need not be in any particular form (despite the

FAR requirement of a writing) so long as it is sufficient to generally inform the [g]overnment of

the facts surrounding the claim.”). Accordingly, the Court finds no dispute of material fact that

plaintiff complied with the contract’s notice provision, FAR 52.249-10(b)(2), for excusable delay

arising from all debris in the boat basin beginning on or after 28 December 2014. See id.;

Matsushita, 475 U.S. at 587. The Court also discusses the government’s waiver of the notice

requirements for excusable delay due to debris infra Section VI.A.2.

iii. Differing Site Condition

Regarding notice of a differing site condition claim under FAR 52.236-2(a), within a

week of its first debris events in the boat basin, plaintiff informed the government it was

encountering far more debris than it anticipated or could have expected in the bidding process.

Ex. W at 44, 50 (5 & 7 January 2015 emails between plaintiff and USACE). Given the amount

of debris anticipated was not zero, id. at 44, and the contract warned of at least some debris,

Def.’s Cross-MSJ App. at 273 (the 2014 contract stating, “The Contractor may encounter

accumulations of forest trash, sunken logs, stumps, and miscellaneous debris.”), it logically

follows plaintiff would continue dredging for a few days to first determine if the debris issue was

pervasive enough to constitute a differing site condition. Plaintiff’s notice of debris was

therefore prompt because it came shortly after it was apparent plaintiff had a differing site

condition claim and still provided the government with the opportunity to inspect the condition.

FAR 52.236-2(a); Schnip Bldg. Co., 645 F.2d at 959; Promptly, Merriam-Webster.com

Dictionary (“without delay[,] very quickly or immediately”).

In addition, after receiving these communications from plaintiff, the contracting officer

stated she was expecting a claim for a differing site condition. Ex. W at 70 (8 January 2015

email from Contracting Officer); see also Tr. at 168:19–23 (“[USACE project manager] Mr. Pell

came out [at least once per week and] looked at us dealing with the debris clog. He snapped

some pictures of piles of debris . . . . And then they just proceeded to move forward, deal with it

kind of thing.”); Ex. A at 8 (deposition of USACE project manager John Pell at 56:8–57:15

(excerpts)) (stating he visited the project site at least once per week and would usually observe

MIC deal with debris clogs). Plaintiff’s communications accordingly “notif[ied] the

[g]overnment that it considered the condition to constitute a ‘differing site condition,’” because

the contracting officer expressly stated such. Engineered Maint. Servs., Inc., 55 Fed. Cl. at 641–

42; see Ex. W at 70 (8 January 2015 email from Contracting Officer). Plaintiff’s

communications were therefore sufficient to inform the government of the facts surrounding

plaintiff’s debris differing site condition claim. Ex. W at 41, 44, 50 (plaintiff’s emails to USACE

regarding debris); see Engineered Maint. Servs., Inc., 55 Fed. Cl. at 641–42; Schnip Bldg. Co.,

645 F.2d at 959.

Further, although plaintiff’s notice of debris came after plaintiff had already encountered

four debris events in the boat basin, 42 more debris events, or 91% of the total debris it would

encounter, remained undisturbed by the time the USACE was on notice of plaintiff’s differing

site condition claim. Ex. W at 41, 44, 50, 70 (emails between plaintiff and USACE); see Pl.’s

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MSJ at 41–54 (listing debris events, including dates and locations of debris, from 11 November

2014 to 27 February 2015); Tr. at 168:8–15 (“THE COURT: [T]hat satisfied the FAR provisions

including, promptly before the conditions are disturbed, give written notice to the contracting

officer? [PLAINTIFF]: Yes. Because there was still plenty more . . . debris to go around out

there.”). Given plaintiff’s delay on project completion in January 2015, and the pressure on all

parties to finish dredging the boat basin before the fish window began in March 2015, it would

be unreasonable to expect plaintiff to have immediately ceased operation at the first sign of any

debris. Ex. W at 12 (6 January 2015 progress report), 63 (9 December 2014 email from Quileute

Tribe to USACE project manager John Pell) (“It is essential to the Tribe’s Treaty Rights and our

fishing economy that the marina be dredged during this contract, as well as the main channel.

Hopefully, these proposed weekly telephone meetings will assist in making sure that the marina

is completely dredged [by] February 2015.”). In addition, with 42 remaining debris events

remaining, plaintiff’s notice was prompt enough to afford the government the opportunity to

assess plaintiff’s claims or employ remedial measures. Schnip Bldg. Co., 645 F.2d at 959.

Applying the notice provision “with a certain measure of flexibility,” K-Con Bldg. Sys., Inc., 131

Fed. Cl. at 321, and considering significant debris remained for the USACE to investigate,

plaintiff’s notice communications occurred promptly and substantially before the debris was

disturbed. FAR 52.236-2(a).

The only evidence the government presents to show plaintiff failed to provide notice of

debris as a differing site condition is a 2018 deposition of MIC employee Michael Eakin stating

he cannot recall any notice provided before 22 January 2015. Def.’s Cross-MSJ at 19.

Considering earlier communications are in the record and discussed supra, Michael Eakin’s

memory of almost four-year-old events do not create a dispute of material fact. Celotex, 477 U.S

at 324. The Court finds plaintiff’s notice of a differing site condition arising from debris in the

boat basin beginning on or after 30 December 2014, the first noticed debris event, satisfies FAR

52.236-2(a). See Engineered Maint. Servs., Inc., 55 Fed. Cl. at 641–42; Matsushita, 475 U.S. at

587. The Court also discusses the government’s waiver of the notice requirements for differing

site conditions due to debris infra Section VI.A.2. The Court lastly discusses the merits of

plaintiff’s claim for a differing site condition due to debris infra Section VI.C.2.

c. Plaintiff’s Notice of Clay and Log Traffic

Plaintiff does not argue it complied with either of the contract’s notice provisions for clay

content or floating logs in the waterway, nor does it provide the Court with any communications

to the USACE on these issues. See Pl.’s Reply at 5 (listing six examples of the government’s

knowledge of these conditions but providing no examples of plaintiff giving notice as to any

potential claims). The government alleges plaintiff did not claim excusable delay or differing

site conditions with regard to clay or log traffic until plaintiff’s counsel sent the USACE a letter

in February 2015. Def.’s Cross-MSJ at 28 (not providing a copy of plaintiff’s counsel’s letter or

an exact date of receipt).

Plaintiff’s allegations regarding clay content in the waterway are limited to plaintiff’s

time dredging the boat basin, Pl.’s MSJ at 38–39, which began on 30 December 2014. Ex. W at

12 (6 January 2015 progress update). Plaintiff claims it encountered clay the entire time it was

dredging in the boat basin. See Pl.’s MSJ at 37 (claiming delay for the entire period).

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Accordingly, plaintiff encountered delays due to clay for at least one month before notifying the

USACE in February 2015 of its claims for excusable delay and differing site conditions. Def.’s

Cross-MSJ at 28; Tr. at 66:23–67:9. One month exceeds the ten days allotted for a claim to

excusable delay under FAR 52.249-10(b)(2). Additionally, waiting one month to provide notice

of a differing site condition while dredging continues “24/7,” Ex. W at 22, cannot be considered

prompt “and before the conditions [we]re disturbed” as required by FAR 52.236-2(a). Dredging

24/7 for one month before providing notice does not afford the government the opportunity to

assess plaintiff’s claims or employ remedial measures. Schnip Bldg. Co., 645 F.2d at 959; see

infra Section VI.A.3 (notwithstanding any finding related to the government’s earlier actual or

constructive notice of the claim and lack of prejudice from the lack of written notice). The Court

accordingly finds no dispute of material fact that plaintiff failed to comply with the contract’s

notice provisions, FAR 52.236-2(a), 52.249-10(b)(2), for differing site conditions and excusable

delay arising from clay. See Engineered Maint. Servs., Inc., 55 Fed. Cl. at 641–42; Matsushita,

475 U.S. at 587. The Court discusses the government’s waiver of the FAR 52.249-10(b)(2)

notice requirements for excusable delay due to clay infra Section VI.A.2. The Court also

discusses whether plaintiff may avoid the notice requirements under FAR 52.236-2(a) for its clay

differing site condition claim on a theory of actual or constructive notice infra Section VI.A.3.

The Court lastly finds plaintiff failed to establish its clay differing site condition claim infra

Section VI.C.1.

Plaintiff’s claim to excusable delay due to log traffic is directly tied to the weather events

plaintiff encountered, the first of which occurred on 19 November 2014. Pl.’s Suppl. Br. at 2;

Pl.’s MSJ at 70 (“The log traffic is part of the delay associated with the weather”); Tr. at 209:21–

23 (plaintiff’s counsel stating, “the logs are . . . what happens after you have an unusually severe

weather event”). Accordingly, plaintiff waited nearly three months before notifying the USACE

in February 2015 of its claims for excusable delay and differing site conditions due to log traffic.

Def.’s Cross-MSJ at 28; Tr. at 66:23–67:9. Three months exceeds the ten days allotted for a

claim to excusable delay under FAR 52.249-10(b)(2) and is not prompt under FAR 52.236-2(a).

Schnip Bldg. Co., 645 F.2d at 959. The Court finds no dispute of material fact that plaintiff

failed to comply with the contract’s notice provisions, FAR 52.236-2(a), 52.249-10(b)(2), for

excusable delay and differing site conditions due to log traffic. See Engineered Maint. Servs.,

Inc., 55 Fed. Cl. at 641–42; Matsushita, 475 U.S. at 587. The Court discusses the government’s

waiver of the notice requirements for excusable delay and differing site conditions due to log

traffic infra Section VI.A.2.

2. Whether the Government Waived Notice as a Defense

Plaintiff argues, through the contracting officer’s decision, Ex. T, ECF No. 85-2, the

government “waived any 10-day notice requirement by accepting [plaintiff]’s claim[s] and

denying the claim[s] on the merits instead of rejecting them for lack of notice.” Pl.’s MSJ at 4.

The government broadly asserts plaintiff “is mistaken” because “the Contracting Officer (CO)

did, in fact, identify [plaintiff]’s failure to provide timely notice as a basis for denying

[plaintiff]’s claims,” so no waiver occurred. Def.’s Reply at 12 (citing Ex. T at 15 (Contracting

Officer’s Decision)).

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The government may waive the contract’s notice requirements by failing to raise them as

a defense to plaintiff’s differing site conditions and excusable delay claims. See K-Con Bldg.

Sys., Inc., 131 Fed. Cl. at 322 (finding the contracting officer failed to reject plaintiff’s claims as

untimely, “effectively waiv[ing] the ten-day notice requirement”). Even where the government

addresses plaintiff’s differing site conditions and excusable delay claims on the merits, as long as

it also raises lack of notice as a defense, no waiver results. See N. Am. Landscaping, Constr. &

Dredge Co. v. United States, 142 Fed. Cl. 281, 291 (2019) (holding “plaintiff’s weather-related

excusable delay claim is time-barred,” despite the contracting officer also rejecting that claim on

the merits); R.P. Wallace, Inc. v. United States, 63 Fed. Cl. 402, 417 (2004) (same); Tr. at

171:18–25 (THE COURT: “ . . . the North American Landscaping case states, ‘Plaintiff’s failure

to provide proper notice as to the delays being encountered provides a second independent basis

upon which to deny excusable delay.’ Is that . . . not the law?” [PLAINTIFF]: “If that’s what

the case says, that[] would be the law.”).

The contracting officer’s decision summarizes plaintiff’s claims as “[c]osts and delay

days” for: the time elapsed between contract award and notice to proceed issuance, weather, log

traffic, debris, and clay. Ex. T at 1 (Contracting Officer’s Decision). The decision analyzes each

of plaintiff’s claims for excusable delay and differing site conditions on the merits. Id. at 8–18

(Part V. Analysis). The contracting officer’s decision, however, denies only one of plaintiff’s

claims for lack of notice: differing site conditions due to clay. Id. at 15. The differing site

condition notice provision, FAR 52.236-2, is the only notice requirement cited in denying

plaintiff’s claims to costs and delay days for clay content. Id. The decision only denies

plaintiff’s “request for compensation of costs associated with encountering clay-like material,”

and does not mention excusable delay. Ex. T at 15. The decision does not discuss the ten-day

excusable delay FAR 52.249-10(b)(2) notice requirement in any capacity. See Ex. T.

Accordingly, the Court finds no dispute of material fact that the USACE raised notice as a

defense only for costs under plaintiff’s clay differing site condition claim. Id. By failing to raise

the notice provisions as a defense to the remainder of plaintiff’s claims, the USACE waived the

notice requirements for at least the following: (1) excusable delay related to unusually severe

weather, debris, floating logs, clay, and the time elapsed between contract award and notice to

proceed issuance; and (2) differing site conditions due to debris. See K-Con Bldg. Sys., Inc., 131

Fed. Cl. at 322; Ex. T (Contracting Officer’s Decision). The Court grants in part and denies in

part the government’s motion for summary judgment on the issue of notice—only plaintiff’s

claim for a differing site condition due to clay is barred for lack of notice. FAR 52.236-2(a);

Pl.’s Reply at 4–5; Def.’s Cross-MSJ at 27–29. The Court discusses whether plaintiff may avoid

the notice requirements under FAR 52.236-2(a) for its clay differing site condition claim on a

theory of actual or constructive notice infra Section VI.A.3. The Court finds, however, plaintiff

failed to establish its clay differing site condition claim infra Section VI.C.1.

3. Whether the USACE Had Actual or Constructive Notice of Clay

Plaintiff’s differing site condition claim as to clay is the only claim barred for lack of

notice. See supra Section VI.A.2. Plaintiff argues the government had actual knowledge of the

differing site conditions plaintiff encountered, and no prejudice resulted, so notice was not

required. Pl.’s Reply at 5; Tr. at 136:1–8 (plaintiff arguing K-Con Bldg. Sys., Inc., 131 Fed. Cl.

275, and Hoel-Steffen Const. Co., 456 F.2d 760, support its actual knowledge theory). Plaintiff

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argues the government failed to identify any actual prejudice because notice would not have

removed the clay content and the government was already aware of the clay’s presence. Pl.’s

Reply at 5. The government argues it was “prejudiced by its inability to obtain sampling of the

boat basin material in order to conclusively establish whether the clay content was of a type that

could reasonably be expected to interfere with competent dredging activity.” Def.’s Reply at 13.

The government asserts the lack of notice “effectively prevented any verification of [plaintiff’s]

claim and also the employment of alternate remedial procedures.” Id. (quoting Renda Marine,

Inc., 66 Fed. Cl. at 650).

Plaintiff may avoid the differing site condition notice requirements by “proceeding on a

theory that the government had actual or constructive notice.” Renda Marine, Inc., 66 Fed. Cl.

at 650. Once plaintiff shows the government had actual or constructive notice of a differing site

condition, plaintiff must prove the government was not prejudiced by the lack of written or oral

notice from the plaintiff. Id. “The government may defeat recovery by proving that ‘it was

prejudiced or disadvantaged by plaintiff’s failure to give notice’ . . . and may satisfy this burden

by establishing that ‘the passage of time obscured the elements of proof or [that] defendant could

have minimized the extra work and attendant costs had notice been given.’” Id. (quoting Dawco

Constr., Inc., 18 Cl. Ct. at 693); see also Schnip Bldg. Co., 645 F.2d at 959 (“[P]laintiff’s[]

failure to render the notice . . . and its completion of the [contract work before] submitting its

claim prevented the [g]overnment from ascertaining whether the . . . problems resulted from a

subsurface condition that was unexpected or from [plaintiff’s own] use of an improper . . .

procedure . . . . The lack of a timely notice was prejudicial to the [g]overnment because it

effectively prevented any verification of [plaintiff’s] claim and also the employment of alternate

remedial procedures.” (internal citations omitted)); K-Con Bldg. Sys., Inc., 131 Fed. Cl. at 321

(quoting Hoel-Steffen Constr. Co., 456 F.2d at 767–68 (“[N]otice provisions in contract-

adjustment clauses [should] not be applied too technically and illiberally where the [g]overnment

is quite aware of the operative facts.”)).

Plaintiff provides three examples of the government’s actual notice of plaintiff’s delays

due to clay content in the boat basin. Pl.’s Reply at 5 (citing Ex. W at 24, 26, 56 (emails between

plaintiff and USACE)). The government does not dispute its knowledge of the delays due to

clay content in the boat basin. Def.’s Reply at 12. The USACE project manager stated in

deposition testimony he personally observed consolidated cohesive soils in the boat basin. Pl.’s

MSJ at 33–34. The project manager stated he knew the boat basin materials contained 7%–10%

clay when preparing the 2014 solicitation. Id. at 32. The solicitation referenced documentation

containing information about the clay content of the boat basin. Def.’s Cross-MSJ at 36. The

government’s notice as to clay content in the boat basin causing plaintiff delay is accordingly not

in dispute. Ex. W at 24, 26, 56 (emails between plaintiff and USACE); Def.’s Reply at 12

(admitting the government knew “MIC was experiencing . . . difficulty dredging the boat basin

material . . . .”). The government does dispute, however, whether its knowledge of plaintiff’s

delays due to the clay content constitutes notice that plaintiff “viewed those circumstances as”

rising to the level of “unforeseeable or as differing site conditions” under the FAR. Def.’s Reply

at 12. There are accordingly disputes of material fact as to whether the government had actual or

constructive notice of plaintiff’s clay differing site condition claim. Anderson, 477 U.S. at 250;

see Renda Marine, Inc., 66 Fed. Cl. at 650 (citations omitted) (“[A] plaintiff-contractor bears the

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burden of proving that the contracting officer was timely informed of the alleged differing site

condition.”).

Regarding prejudice, both parties offer legal conclusions as to whether the government

was prejudiced by the lack of notice, but neither party identifies facts sufficient to support their

conclusions. See Pl.’s Reply at 5; Def.’s Reply at 13. Plaintiff’s assertion “[p]rompt notice does

not make the clay go away,” Pl.’s Reply at 5, is irrelevant to whether notice might have provided

the government the opportunity to “minimize[] the extra work and attendant costs had notice

been given.” Dawco Constr., Inc., 18 Cl. Ct. at 693. Similarly, the government’s assertion it

was “prejudiced by its inability to obtain sampling of the boat basin material,” Def.’s Reply at

13, is unsupported by any facts that might show how “the passage of time obscured the elements

of proof” for plaintiff’s differing site condition claim. Dawco Constr., Inc., 18 Cl. Ct. at 693.

There are accordingly disputes of material fact as to the prejudice faced by the government

resulting from the lack of notice of plaintiff’s clay differing site condition claim. Anderson, 477

U.S. at 250.

The Court declines to enter summary judgment on whether plaintiff may avoid the notice

requirements under FAR 52.236-2(a) for its clay differing site condition claim on a theory of

actual or constructive notice. Renda Marine, Inc., 66 Fed. Cl. at 650. The Court finds there are

disputes of material fact regarding whether the government had actual or constructive notice of

plaintiff’s clay differing site condition claim by virtue of its knowledge of plaintiff’s delays due

to clay content. Id. The Court also finds there are disputes of material fact regarding whether

“the passage of time obscured the elements of proof or how defendant could have minimized the

extra work and attendant costs had notice been given.” Dawco Constr., Inc., 18 Cl. Ct. at 693;

see also Schnip Bldg. Co., 645 F.2d at 959–60. The Court lastly finds plaintiff failed to

establish its clay differing site condition claim infra Section VI.C.1. Accordingly, although the

Court declines to enter summary judgment on plaintiff’s actual or constructive notice theory,

those issues are moot in view of plaintiff’s failure to establish the merits of its clay differing site

condition claim. See Hoel-Steffen Constr. Co., 456 F.2d at 768 (remanding for consideration of

the merits after finding the notice defense fails); Engineered Maint. Servs., Inc., 55 Fed. Cl. at

641 (declining to consider the merits after finding insufficient notice).

B. Plaintiff’s Claim to Excusable Delay for Unusually Severe Weather

Plaintiff argues it suffered unusual, excessive, and repetitive storm events that impacted

its ability to dredge, causing at least 30 days of delay. Pl.’s MSJ at 17. Plaintiff claims “[t]his

amounts to a loss of 20% of the available dredging days,” constituting an unforeseeable cause of

excusable delay. Id. at 17–18 (citing the notice to proceed of 24 September 2014 and the work

window close date at the end of February 2015). Plaintiff argues the bad weather began before

the submittal process was expected to conclude and continued into the contract period. Pl.’s

Reply at 6 (citing Ex. W at 46 (email from the contracting officer)). Plaintiff states the weather

delays were unexpected, even if plaintiff built “19 days of float” into its schedule for the

contract. Id. at 7. Under FAR 52.249-10(b)(1), plaintiff asserts “the government cannot assess

damages against a contractor for a failure to timely complete work under a contract if ‘[t]he

delay in completing the work arises from unforeseeable causes.’” Pl.’s MSJ at 17–18. Plaintiff

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states it is therefore entitled to summary judgment on the government’s counterclaims because

they are based on a termination for default that is wrongful due to excusable delay. Id. at 18.

The government in turn argues the weather was not so unusually severe as to be

unforeseeable. Def.’s Reply at 13–14. The government asserts plaintiff faced “the type of

severe weather that is customary at La Push during winter, and that [plaintiff] should have

planned and prepared for.” Id. at 15 (citing Def.’s Cross-MSJ App. at 458 (plaintiff’s

transmitted schedule explaining it has 46 days to be flexible for weather)). Even if the weather

was unusually severe, the government argues the weather delay was not “beyond the control and

without the fault or negligence” of plaintiff, because plaintiff was late in providing requisite

submittals, pushing the dredging into the winter. Def.’s Cross-MSJ at 31–32 (citing Second Am.

Compl. at 4). The government also asserts much of the delay resulted from pre-existing

equipment problems which plaintiff has yet to demonstrate as independent of the weather delays.

Id. at 32 (citing Def.’s Cross-MSJ App. at 485–86 (internal MIC email), 334, 341 (deposition of

MIC employee Michael Harrison)). Lastly, the government argues plaintiff’s inclusion of “‘19

working days for weather,’ plus ‘27 days from holiday weeks and Sundays’ allocated to

anticipated ‘weather and/or production issues,’” demonstrates the 30-day weather delay

experienced was not unforeseeable, even to plaintiff. Id. at 32; Def.’s Reply at 15. The

government thus asserts plaintiff’s excusable delay due to severe weather claim must fail. Def.’s

Reply at 15.

Plaintiff’s failure to timely perform a contract is excusable if it “arises from

unforeseeable causes beyond the control and without the fault or negligence of the [c]ontractor.”

FAR 52.249-10(b)(1) (listing unusually severe weather as an exemplary unforeseeable cause of

excusable delay); see Def.’s Cross-MSJ App. at 15 (incorporating FAR 52.249-10(b)(1) by

reference into the parties’ contract). In determining whether a contractor is entitled to weather-

related excusable delay, the contractor must provide evidence of unusually severe conditions.

Broome Constr., Inc. v. United States, 492 F.2d 829, 835 (Ct. Cl. 1974). “Unusually severe

weather must be construed to mean adverse weather which at the time of year in which it

occurred is unusual for the place in which it occurred.” Id. Unusually severe weather is

determined based on a comparison of the conditions experienced by the contractor and the

weather conditions of prior years. Cape Ann Granite Co. v. United States, 100 Ct. Cl. 53, 71–72

(1943).

On 29 December 2020, the Court found inadmissible substantially all of plaintiff’s

evidence related to the severity of the weather it encountered. 6 See Order at 26, ECF No. 100

(holding inadmissible Decl. of Joseph Bernert in Supp. of Pl.’s Mots. for Summ. J. ¶¶ 4E, 5–12,

ECF No. 81, and all declaration statements taken from Ex. H, Interrogatory No. 9, ECF No. 81-1,

6

The Court does not consider the excluded portions of plaintiff’s evidence in its analysis. Even if the Court were to

consider plaintiff’s excluded evidence of unusual severity, the Court notes plaintiff’s evidence demonstrates the

weather it encountered is only the third most severe season out of the seven preceding seasons. Pl.’s MSJ at 12

(citing Ex. H at 33 (plaintiff’s interrogatory response)). Further, the contracting officer’s decision analyzed

plaintiff’s unusually severe weather claim and found the weather plaintiff experienced was “only marginally above

the 14-year average, and still well within the range that a reasonable contractor with the information publically [sic]

available and provided through the contract specifications and the bid preparation process should have anticipated.”

Ex. T at 13 (Contracting Officer’s Decision). The weather plaintiff encountered was therefore likely not unusually

severe. Broome Constr., Inc., 492 F.2d at 835.

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and any other statements in Ex. H containing analysis of weather patterns); Pl.’s MSJ at 7–16. In

its supplemental brief, plaintiff maintained the weather was unusually severe because the

USACE contracting officer “believed” plaintiff when it told her “the weather was unusually

bad.” Pl.’s Suppl. Br. at 2 (citing Bowser Decl. Ex. C at 3, ECF No. 80-3). At oral argument,

when asked for evidence of unusual severity, plaintiff could only cite to an email from the

Quileute Tribe, stating: “La Push is in the midst of its second major storm of the season, and it is

not even mid-December. At this rate, and based on the normal weather patterns that the Tribe’s

elders and fishers affirm, we can expect a minimum of 8–9 of these major storms this season.”

Ex. W at 63.

Plaintiff’s supplemental brief offers no comparison of the weather encountered to the

weather conditions of prior years. Pl.’s Suppl. Br. at 2–3; Cape Ann Granite Co., 100 Ct. Cl. at

71–72. Members of the Quileute Tribe opining on the number of storms they anticipated is

insufficient to demonstrate plaintiff encountered “adverse weather which at the time of year in

which it occurred is unusual for the place in which it occurred.” Broome Constr., Inc., 492 F.2d

at 835; Ex. W at 63 (email from the Quileute Tribe); Cape Ann Granite Co., 100 Ct. Cl. at 71–

72; see Tr. at 185:11–187:3 (government counsel responding to plaintiff’s citation to the

Quileute Tribe email by arguing “a tribal member speculating about the number of storms that

will be upcoming based on the number of storms that have occurred says nothing to suggest that

this is unusually severe let alone unforeseeably so”). Members of the Quileute Tribe are no

doubt familiar with the climate in which they live, but that alone does not qualify them as experts

in the field of meteorology, nor does it transform their emails on weather into expert reports. See

Fed. R. Evid. 702. In addition, the Court notes weather is generally worse in the winter season,

and plaintiff did not begin dredging the waterway until 18 November 2014. Tr. at 116:3–7

(government counsel indicating work conditions in the fall are better than winter), 63:18–25.

Accordingly, the Court finds “there is an absence of evidence to support” plaintiff’s claims of

unusually severe weather. Dairyland Power Co-op. v. United States, 16 F.3d 1197, 1202 (Fed.

Cir. 1994) (citing Celotex, 477 U.S. at 325); Broome Constr., 492 F.2d at 835; Matsushita, 475

U.S. at 587. The Court grants the government’s motion for summary judgment and denies

plaintiff’s motion for summary judgment on plaintiff’s claim for excusable delay due to

unusually severe weather. Def.’s Cross-MSJ at 29–31; Pl.’s MSJ at 18.

C. Plaintiff’s Differing Site Condition Claims

Plaintiff moves for summary judgment on two claims for type 1 differing site conditions:

clay and debris. 7 Pl.’s MSJ at 1. To prevail on a differing site condition claim, plaintiff must

prove four elements. Int’l Tech. Corp. v. Winter, 523 F.3d 1341, 1348–49 (Fed. Cir. 2008).

First, plaintiff must prove “a reasonable contractor reading the contract documents as a whole

would interpret them as making a representation as to the site conditions.” Id. at 1348 (citing

Renda Marine, Inc. v. United States, 509 F.3d 1372, 1376 (Fed. Cir. 2007)). Whether the

contract makes a representation as to the disputed site conditions is a matter of contract

7

“Type 1” differing site conditions refer to “subsurface or latent physical conditions at the site which differ

materially from those indicated in this contract.” FAR 52.236-2(a)(1). “Type 2” differing site conditions refer to

“unknown physical conditions at the site, of an unusual nature, which differ materially from those ordinarily

encountered and generally recognized as inhering in work of the character provided for in the contract.” FAR

52.236-2(a)(2).

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interpretation and a question of law. Id. at 1349; Stuyvesant Dredging Co. v. United States, 11

Cl. Ct. 853, 858 (1987), aff’d, 834 F.2d 1576 (Fed. Cir. 1987). The contractual representation

must be affirmative. See Comtrol, Inc. v. United States, 294 F.3d 1357, 1363 (Fed. Cir. 2002)

(denying a type 1 differing site condition claim where “the specification did not affirmatively

represent that only hard material would be encountered”); H.B. Mac, Inc. v. United States, 153

F.3d 1338, 1347 (Fed. Cir. 1998) (denying a type 1 differing site condition claim where “a

reasonable and prudent contractor would not have understood the contract documents as

providing an affirmative indication of the subsurface conditions”). “A contractor cannot be

eligible for an equitable adjustment for a Type I differing site condition unless the contract

indicated what that condition would be.” H.B. Mac, Inc., 153 F.3d at 1345 (citing P.J. Maffei

Bldg. Wrecking Corp. v. United States, 732 F.2d 913, 916 (Fed. Cir. 1984)). “[A] proper

technique of contract interpretation is for the court to place itself into the shoes of a reasonable

and prudent contractor and decide how such a contractor would act in interpreting the contract

documents.” Id.

“Second, [plaintiff] must prove . . . the actual site conditions were not reasonably

foreseeable to the contractor, with the information available to the particular contractor outside

the contract documents, i.e., that the contractor ‘reasonably relied’ on the representations.” Int’l

Tech. Corp., 523 F.3d at 1349 (quoting Renda Marine, Inc., 509 F.3d at 1376). “In other words,

. . . it must be ‘reasonably unforeseeable on the basis of all the information available to the

contractor at the time of bidding.’” Sergent Mech. Sys., Inc. v. United States, 34 Fed. Cl. 505,

518 (1995) (quoting Mojave Enters. v. United States, 3 Cl. Ct. 353, 356–57 (1983)).

“[C]onditions which are discoverable by a reasonable site visit and review of the contract

documents [are] chargeable to the contractor.” Id. (citations omitted).

“Third, [plaintiff] must prove . . . [it] in fact relied on the contract representation.” Int’l

Tech. Corp., 523 F.3d at 1349; see Fehlhaber Corp. v. United States, 151 F. Supp. 817, 825 (Ct.

Cl. 1957) (holding it “would have been a virtual impossibility” for plaintiff to discover the

condition on its own, so “[p]laintiff had a right to rely on the [g]overnment’s specifications and

drawings”); Foster Constr. C. A. & Williams Bros. Co. v. United States, 435 F.2d 873, 889 (Ct.

Cl. 1970) (“Without notice of the alluvial condition or reason to doubt the logs, plaintiff and the

other bidders had every reason and right to rely on the clear indications in the logs of the nature

of the subsurface.”).

“Fourth, [plaintiff] must prove . . . the conditions differed materially from those

represented and [it] suffered damages as a result.” Int’l Tech. Corp., 523 F.3d at 1349. Relying

on a “total time theory” to prove excusable delay is impermissible because it assumes the

government is responsible for all the claimed delay. Catel, Inc. v. United States, No. 05-1113 C,

2012 WL 3104366, at *34 (Fed. Cl. July 30, 2012) (quoting Morganti Nat., Inc. v. United States,

49 Fed. Cl. 110, 134 (2001), aff’d, 36 F. App’x 452 (Fed. Cir. 2002)).

Under the “total time theory,” a contractor asserts that wrongful government action

contributed to delayed contract completion and “simply takes the original and

extended completion dates, computes therefrom the intervening time or overrun,

points to a host of individual delay incidents for which defendant was allegedly

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responsible and which ‘contributed’ to the overall extended time, and then leaps to

the conclusion that the entire overrun time was attributable to defendant.”

Id. (quoting Law v. United States, 195 Ct. Cl. 370, 382 (1971)). “It is well settled that this ‘total

time’ theory of proving delay is insufficient to meet the contractor’s burden to prove that

government-caused delay actually delayed the overall completion of the project.” Fireman’s

Fund Ins. Co. v. United States, 92 Fed. Cl. 598, 669 n.88 (2010) (citations omitted).

1. Whether the Clay Plaintiff Encountered was a Differing Site

Condition

Regarding the first element of plaintiff’s clay differing site condition claim, whether a

reasonable contractor reading the contract documents as a whole would interpret them as making

an affirmative representation, plaintiff argues the USACE made a positive representation, based

upon its own testing, the materials to be removed were composed of cobbles to fine silts, not

clay. Pl.’s MSJ at 38. Plaintiff asserts the USACE’s own website draws a distinction between

silt and clay, so it was reasonable for plaintiff to draw that same distinction. Id. at 31 (citing

Dredging Operations, USACE, https://www.sam.usace.army.mil/Missions/Civil-

Works/Navigation/Dredging-Operations/) (“Maintenance dredging operations involve the

repetitive removal of naturally recurring deposited bottom sediment such as sand, silt, and clays

in an existing navigation channel.”) (last visited Feb. 15, 2022). The government responds the

“cobbles to fine silts” representation did not exclude any amount of clay. Def.’s Cross-MSJ at

34. Moreover, the government points out the solicitation referred to a water quality certification

which directed readers to a public document containing the sediment composition. Id. at 36.

Had plaintiff “carefully review[ed] the solicitation,” the government argues, plaintiff would not

have been “surprised” at the lack of sediment information. Id.

The solicitation stated the material to be dredged “is composed of cobbles to fine silts,”

without mentioning clay. Def.’s Cross-MSJ App. at 273 (2014 solicitation); Weeks Dredging &

Contracting, Inc. v. United States, 13 Cl. Ct. 193, 219 (1987) (“Where the contract contains no

affirmative (positive or negative) representations of the subsurface conditions, purportedly relied

on by the contractor, the government has no liability.”), aff’d, 861 F.2d 728 (Fed. Cir. 1988).

Additionally, the solicitation included a water quality certification with which plaintiff was

required to comply. Def.’s Cross-MSJ App. at 258, 263 (2014 solicitation). The certification

disclosed to all bidders that “[s]ediment sampling in the navigation channel and boat basin

occurred . . . on October 5, 2010; with results documented in a Suitability Determination (SD)

dated January 6, 2011.” Id. at 263 (2014 solicitation). The publicly available suitability

determination unambiguously stated the boat basin sediment was comprised of “less than 1%

gravel, 22% sand, 71% silt, and 7% clay.” Pl.’s MSJ at 32. Viewing “the contract documents as

a whole,” the government did not affirmatively represent plaintiff would not encounter clay in

the solicitation. Int’l Tech. Corp., 523 F.3d at 1348; Comtrol, 294 F.3d at 1363; H.B. Mac, Inc.,

153 F.3d at 1347. To the contrary, by referencing the suitability determination, “the contract

indicated” plaintiff could expect to encounter exactly 7% clay content. H.B. Mac, Inc., 153 F.3d

at 1345. “A contractor has a duty to review information referred to and made available for

inspection in the contract documents.” Delhur Indus., Inc. v. United States, 95 Fed. Cl. 446, 457

(2010) (citing Randa/Madison Joint Venture III v. Dahlberg, 239 F.3d 1264, 1270–72 (Fed. Cir.

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2001); Neal & Co. v. United States, 36 Fed. Cl. 600, 617 (1996) (holding that in determining if a

contractor’s claim is reasonable, the court “must assess all of the information that was available

to the bidders at the time of bidding”), aff’d, 121 F.3d 683 (Fed. Cir. 1997)). Plaintiff’s failure to

review the suitability determination does not mean the government misrepresented the clay

content in the waterway. Id.; Pl.’s Reply at 15; Def.’s Cross-MSJ App. at 362 (deposition of

MIC co-owner Joseph Bernert at 38:2–18 (excerpts)) (indicating plaintiff did not review the

suitability determination containing the sediment contents). The USACE’s website—

unreferenced by the contract—listing silt and clays separately has no bearing on the fact 7% clay

content was explicitly disclosed. Pl.’s MSJ at 31–32. Accordingly, “a reasonable contractor

reading the contract documents as a whole would interpret them as” representing the material to

be dredged was composed of cobbles to fine silts, and—through the water quality certification—

7% clay. Int’l Tech. Corp., 523 F.3d at 1348; H.B. Mac, Inc., 153 F.3d at 1345; Delhur Indus.,

Inc., 95 Fed. Cl. at 457. Plaintiff fails to establish the first element of its clay differing site

condition claim. Int’l Tech. Corp., 523 F.3d at 1348; Comtrol, 294 F.3d at 1363; H.B. Mac, Inc.,

153 F.3d at 1347.

For the second element—whether the conditions were reasonably foreseeable—plaintiff

argues it would be unreasonable to expect a bidder to go beyond the water quality certification

referenced by the solicitation to uncover sediment sampling results which indicate the presence

of clay. Pl.’s Reply at 15. The government responds by arguing plaintiff’s “unsubstantiated

assertions” are not evidence of what a reasonable contractor would do, and plaintiff should have

reviewed the solicitation more carefully. Def.’s Reply at 17 (quoting Jones v. Dep’t of Health &

Hum. Servs., 834 F.3d 1361, 1369 (Fed. Cir. 2016)). Even without the water quality

certification, the government asserts fine silts includes clay under the ASTM version of the

Unified Soil Classification System, so the solicitation did not represent no clay would be present.

Def.’s Cross-MSJ at 34; Def.’s Cross-MSJ App. at 522–23 (9 October 2014 USACE email to

MIC estimator regarding ASTM Standard). The government states the contracting officer even

provided plaintiff, at its request, with the applicable ASTM standard before plaintiff provided

any submittals. Id. at 35.

Even if the government affirmatively represented no clay was present, the presence of

clay would have been “reasonably foreseeable to [plaintiff] with the information available to [it]

outside the contract documents.” Int’l Tech. Corp., 523 F.3d at 1349. First, the suitability

determination is a public document referenced by the solicitation and described as containing the

results of “sediment sampling in the navigation channel and boat basin.” Def.’s Cross-MSJ App.

at 263 (2014 solicitation). “[O]n the basis of all the information available to [plaintiff] at the

time of bidding,” the presence of clay was therefore reasonably foreseeable. Sergent Mech. Sys.,

34 Fed. Cl. at 518 (quoting Mojave Enters., 3 Cl. Ct. at 356–57). Second, if plaintiff perhaps

missed the suitability determination during its “half hour” review of the 150-page solicitation

and “was surprised” about the “limited information about sediments,” the burden was on plaintiff

to make the “relatively simple inquir[y]” to the government which would have revealed the

information plaintiff sought. Def.’s Cross-MSJ App. at 362, 364–65 (deposition of MIC co-

owner Joseph Bernert at 38:2–18, 40:24–41:3 (excerpts)); Foster Constr. C.A., 435 F.2d at 888

(“The contractor is unable to rely on contract indications of the subsurface only where relatively

simple inquiries might have revealed contrary conditions.”). Instead, plaintiff rested on a thirty-

minute review of the 150-page solicitation and looked no further for sediment information.

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Foster Constr. C.A., 435 F.2d at 888. Plaintiff’s assumption about the sediment contents, when

plaintiff failed to review the suitability determination or inquire for further information, “is more

akin to a miscalculation.” Weeks Dredging & Contracting, Inc., 13 Cl. Ct. at 219. The clay

content was “discoverable by . . . review of the contract documents [and is thus] chargeable to

the contractor.” Sergent Mech. Sys., 34 Fed. Cl. at 518. Accordingly, plaintiff fails to establish

the second element of its clay differing site condition claim. Int’l Tech. Corp., 523 F.3d at 1349;

Renda Marine, Inc., 509 F.3d at 1376.

Regarding the third element, whether plaintiff relied on the contract’s representations,

plaintiff does not expressly state it relied on the representations contained in the solicitation and

contract, but the argument can be inferred from plaintiff’s briefs. See Pl.’s MSJ at 38–39

(“USACE made a representation that silt was the smallest particle to be dredged. They were

incorrect. [Plaintiff] encountered clay . . . . Clay is harder to dredge. Because [plaintiff]

encountered clay and clay was not listed as a material to be dredged, [plaintiff] encountered a

differing site condition . . . .”). The government does not argue plaintiff cannot meet its burden

of proof as to the third element. Def.’s Cross-MSJ at 34 (“Here, the undisputed evidence

demonstrates that [plaintiff] cannot meet its burden of proof as to the first, second, or fourth

elements necessary for sustaining a differing site condition claim with regard to any of

[plaintiff]’s alleged differing site conditions.”).

Plaintiff cites several cases where contractors relied on vibracore logs to understand the

sediment contents of the sites at issue, unlike plaintiff in this case. Compare Pl.’s MSJ at 27–28

(citing Foster, 435 F.2d at 888–89 (contractor entitled to rely on subsurface condition logs);

Farnsworth & Chambers Co. v. United States, 346 F.2d 577, 580 (Ct. Cl. 1965) (contractor

entitled to rely on the government’s representations in “drawings, specifications and borings”);

Vann v. United States, 420 F.2d 968, 975–76 (Ct. Cl. 1970) (contractor misled by contract

drawings)), with Pl.’s MSJ at 31 (“The contract described the ‘material to be removed’ as: . . .

cobbles to fine silts.”), and Def.’s Cross-MSJ App. at 364–65 (deposition of MIC co-owner

Joseph Bernert at 40:24–41:3 (excerpts)) (“I was surprised there was no vibracores. There was

very limited information about the sediments.”). The government did not provide bidders with

vibracore logs in this case, so plaintiff “was surprised” about the “limited information about

sediments” after spending a “half hour” reviewing the 150-page solicitation. Def.’s Cross-MSJ

App. at 362, 364–65, (deposition of MIC co-owner Joseph Bernert at 38:2–18, 40:24–41:3

(excerpts)). Rather than review the contract further and discover the referenced suitability

determination which contained the sediment sampling results, or make the “relatively simple

inquir[y]” to the government for details of the sediment contents, plaintiff instead relied on its

own assumptions. Foster Constr. C.A., 435 F.2d at 888 (holding a “contractor is unable to rely

on contract indications of the subsurface only where relatively simple inquiries might have

revealed contrary conditions”); Def.’s Cross-MSJ App. at 362 (deposition of MIC co-owner

Joseph Bernert at 38:2–18 (excerpts)) (indicating plaintiff did not review the suitability

determination containing the sediment contents). “Plaintiff had a right to rely on the

[g]overnment’s specifications”—plaintiff, however, did not rely on the provided specifications

here. Fehlhaber Corp., 151 F. Supp. at 825. “Reasonable reliance cannot exist where the

contractor bid without having reviewed the contract documents on which it seeks to rely.”

Comtrol, 294 F.3d at 1364; Def.’s Cross-MSJ App. at 362 (deposition of MIC co-owner Joseph

Bernert at 38:2–18 (excerpts)). The Court finds plaintiff did not “in fact rel[y] on the contract

- 29 -

representation,” so plaintiff fails to establish the third element of its clay differing site condition

claim. Int’l Tech. Corp., 523 F.3d at 1349; Comtrol, 294 F.3d at 1364; Delhur Indus., Inc., 95

Fed. Cl. at 457 (citing Randa/Madison Joint Venture III, 239 F.3d at 1270–72) (“A contractor

has a duty to review information referred to and made available for inspection in the contract

documents.”).

For the fourth element, whether the conditions differed from the representation and

plaintiff suffered damages as result, plaintiff argues because clay is more difficult to dredge, its

production rate was significantly lower than typical. Pl.’s MSJ at 37–38. Plaintiff takes its

typical dredge rate, compares it to the amount plaintiff actually dredged, and attributes the

difference to clay. Id. The government argues plaintiff “cannot prove ‘the extent to which

completion of the contract work as a whole was delayed’” by the clay content, so its excusable

delay claim must fail. Def.’s Reply at 18–19 (citing Int’l Tech. Corp., 523 F.3d at 1349;

Morganti Nat., 49 Fed. Cl. at 132). The government states plaintiff provided no admissible

evidence to support its typical dredge rate assertion or to prove the 7% clay content is solely

attributable for the delay claimed. Id. at 19.

At the outset, the conditions plaintiff encountered did not differ from those represented

because the government unequivocally disclosed the presence of clay content in the boat basin.

Pl.’s MSJ at 32; Int’l Tech. Corp., 523 F.3d at 1348; Comtrol, 294 F.3d at 1363; H.B. Mac, Inc.,

153 F.3d at 1347. Addressing plaintiff’s claim for damages regardless, plaintiff merely shows it

progressed slowly while dredging the boat basin and then leaps to the conclusion this was

“caused by . . . stiff clay.” Pl.’s Reply at 16–17. Plaintiff “takes the original . . . completion

date[], computes therefrom the . . . overrun, points to [stiff clay] for which defendant was

allegedly responsible and which ‘contributed’ to the overall extended time, and then leaps to the

conclusion that the entire overrun time was attributable to defendant.” Law, 195 Ct. Cl. at 382.

Plaintiff’s use of a “total time theory” to prove delay is impermissible for showing the damages

required by the fourth element of a differing site condition claim because it assumes the

government is responsible for all of the claimed delay. Catel, Inc., 2012 WL 3104366, at *34

(quoting Morganti Nat., 49 Fed. Cl. at 134); Int’l Tech. Corp., 523 F.3d at 1349. “It is well

settled that this ‘total time’ theory of proving delay is insufficient to meet [plaintiff]’s burden” to

show what damages it suffered. Fireman’s Fund Ins., 92 Fed. Cl. at 669 n.88 (citation omitted).

Accordingly, plaintiff fails to establish the fourth element of its clay differing site condition

claim. Id.; Catel, Inc. v. United States, 2012 WL 3104366, at *34; Int’l Tech. Corp., 523 F.3d at

1349.

The Court finds no dispute of material fact that plaintiff failed to establish it encountered

a differing site condition due to clay. Int’l Tech. Corp., 523 F.3d at 1348–49; Comtrol, 294 F.3d

at 1363–64; H.B. Mac, Inc., 153 F.3d at 1347; Renda Marine, Inc., 509 F.3d at 1376; Matsushita,

475 U.S. at 587. The Court accordingly grants the government’s motion for summary judgment

and denies plaintiff’s motion for summary judgment on plaintiff’s claim to a differing site

condition due to clay. Def.’s Cross-MSJ at 34–39; Pl.’s MSJ at 38–39. For this reason, whether

the government had actual or constructive notice of this claim is moot. See supra Section

VI.A.3.

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2. Whether the Debris Plaintiff Encountered was a Differing Site

Condition

Like clay, plaintiff asserts the debris it encountered in the boat basin constituted a type 1

differing site condition. Pl.’s MSJ at 59. Plaintiff alleges the USACE knew “the basin was a

garbage dump,” yet represented to plaintiff the job was mere “routine maintenance dredging.”

Id. Plaintiff states the debris caused substantial downtime, id., and no pre-bid site visit would

have revealed what plaintiff discovered beneath the water. Pl.’s Reply at 20. The solicitation

stated plaintiff “may encounter” debris and the government had no knowledge of artificial

obstructions; plaintiff argues this implies any impediments would be few and limited to only

natural materials. Pl.’s MSJ at 58. Plaintiff lastly argues for the rule of ejusdem generis to limit

the warning of “miscellaneous debris” to only natural forest debris. 8 Pl.’s Reply at 19.

The government responds plaintiff’s arguments are based on assumptions, attributable

only to contractor error. Def.’s Cross-MSJ at 39. According to the government, “[t]he

solicitation’s use of the word ‘may’ did not constitute an ‘affirmative’ representation that any

‘miscellaneous debris’ a contractor might encounter would be limited to a particular amount.”

Id. If plaintiff had conducted a pre-bid site visit as required, the government argues, plaintiff

would have discovered the nature and quantity of debris it would soon encounter. Id. at 40.

Lastly, the government disagrees with plaintiff’s application of the rule of ejusdem generis.

Def.’s Reply at 20.

Regarding the first element of plaintiff’s debris differing site condition claim, whether a

reasonable and prudent contractor reading the contract documents as a whole would interpret

them as making an affirmative representation, the contract stated plaintiff “may encounter

accumulations of forest trash, sunken logs, stumps, and miscellaneous debris.” Def.’s Cross-

MSJ App. at 123 (contract). The contract also stated “the [g]overnment has no knowledge of

cables, pipes, or other artificial obstructions or of any wrecks, wreckage, or other material that

would necessitate the employment of additional equipment for economical removal.” Id.

While the parties suggest what a reasonable interpretation of these contract provisions

might be, neither party addresses how the Court is to determine how “a reasonable and prudent

contractor . . . would act in interpreting the contract documents.” H.B. Mac, Inc., 153 F.3d at

1345. Plaintiff argues the use of the word “may” indicates a lower probability and

“miscellaneous debris” is limited to natural debris, Pl.’s MSJ at 58—and that may indeed be how

plaintiff interpreted the contract—but that says little of how “a reasonable and prudent

contractor” would interpret the clauses. H.B. Mac, Inc., 153 F.3d at 1345. The government

describes plaintiff’s interpretations as “unreasonable assumption[s],” “implausible,” and

“contractor error,” Def.’s Cross-MSJ at 39–40; however, the government presents no evidence to

show “a reasonable and prudent contractor” would have interpreted the contract differently. H.B.

Mac, Inc., 153 F.3d at 1345. The parties further dispute which interpretation tools the Court

should use to understand the contract—plaintiff argues for ejusdem generis, the government

8

“Ejusdem generis[, or ‘of the same kind,’] is a tool for determining ‘the correct meaning of words when there is

uncertainty. Ordinarily, it limits general terms which follow specific ones to matters similar to those specified.’”

Bay Cty., Fla. v. United States, 796 F.3d 1369, 1376 (Fed. Cir. 2015) (quoting Gooch v. United States, 297 U.S. 124,

128 (1936)).

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argues for the use of context and “a reasonably intelligent person acquainted with the

contemporaneous circumstances” standard. Pl.’s Reply at 18; Def.’s Reply at 20 (quoting Enron

Fed. Sols., Inc. v. United States, 80 Fed. Cl. 382, 393 (2008); Armour of Am. v. United States, 96

Fed. Cl. 726, 737 (2010)). Plaintiff asserts:

[Its] interpretation [of miscellaneous debris] is especially reasonable when it is

juxtaposed with USACE’s assertion that it has no knowledge of cables, pipes, or

other artificial obstructions or of any wrecks, wreckage, or other material that

would necessitate the employment of additional equipment for economical

removal. That is a clear statement that there are no known artificial items.

Pl.’s Reply at 19. The government argues plaintiff fails to show the contract made “an

‘affirmative’ representation regarding the nature and amount of debris to be encountered.”

Def.’s Reply at 20 (first citing Int’l Tech. Corp., 523 F.3d at 1348; and then citing H.B. Mac,

Inc., 153 F.3d at 1347).

While the parties dispute the correct way to interpret the contract, both parties failed to

establish how “a reasonable and prudent contractor . . . would act in interpreting the contract

documents.” H.B. Mac, Inc., 153 F.3d at 1345; P.J. Maffei Bldg. Wrecking Corp., 732 F.2d at

917 (citing H. N. Bailey & Assocs. v. United States, 449 F.2d 387, 390 (Ct. Cl. 1971); Hegeman-

Harris & Co. v. United States, 440 F.2d 1009, 1016 (Ct. Cl. 1971)); see RDA Constr. Corp. v.

United States, 132 Fed. Cl. 732, 772–73 (2017) (citing expert testimony on how a reasonable and

prudent contractor would interpret the contract in question), aff’d, 739 F. App’x 644 (Fed. Cir.

2018). In particular, neither party puts forth evidence of how a reasonable and prudent

contractor would interpret the government’s knowledge disclaimer as to artificial obstructions

and wrecks. In the context of this contract, it may be the case a reasonable and prudent

contractor would put great weight on the government’s affirmative representation that it has no

knowledge of artificial obstructions or wrecks. Comtrol, 294 F.3d at 1363; H.B. Mac, Inc., 153

F.3d at 1347. The government’s knowledge disclaimer may be particularly relevant to such a

contractor given the waterway is under the control and supervision of the U.S. Coast Guard and

regularly maintained by the USACE. See generally Ex. K (the USACE’s specifications for

dredging the waterway in 2002, 2003, 2007, 2009, 2011, and 2014); Ex. J. at 78 (the USACE’s

2015 dredging specification). Considering the waterway is under the government’s control, it is

unclear how a reasonable and prudent contractor would interpret the government’s affirmative

representation it lacked knowledge of artificial obstructions; thus, “the Court concludes that the

‘better course’ here . . . is to deny the cross motions for summary judgment and proceed to a full

trial.” Weston/Bean Joint Venture v. United States, 115 Fed. Cl. 215, 218 (2014) (citing

Anderson, 477 U.S. at 255) (denying summary judgment due to disputes of material fact as to

what the contract clauses “indicated”); see also RDA Constr. Corp., 132 Fed. Cl. at 772–73

(citing expert testimony on how a reasonable and prudent contractor would interpret the contract

in question).

D. Plaintiff’s Claims the USACE Withheld Superior Knowledge

Plaintiff and the government cross-motion for summary judgment on four counts of

breach of contract due to the government withholding superior knowledge of: minimum pipe

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size, log traffic, debris, and clay. Pl.’s MSJ at 1–2; Def.’s Cross-MSJ at ii; Tr. at 131:17–132:14

(both parties agreeing failure to disclose superior knowledge requires an excusable delay

analysis). “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); see also McCormick Constr. Co. v. United States, 18 Cl. Ct. 259, 265

(1989) (quoting Util. Contractors, Inc. v. United States, 8 Cl. Ct. 42, 52 (1985), aff’d, 790 F.2d

90 (Fed. Cir. 1986)) (“Superior knowledge is ‘knowledge which is vital to performance of the

contract but which is unknown and is not reasonably available to bidders who are thereby

misled.’”), aff’d, 907 F.2d 159 (Fed. Cir. 1990). “This ‘superior knowledge’ doctrine can, in

limited circumstances, supply the basis for a breach of contract.” GAF Corp. v. United States,

932 F.2d 947, 949 (Fed. Cir. 1991).

To show a breach of contract under the superior knowledge doctrine, plaintiff must

produce specific evidence that it: (1) “undertook to perform without vital knowledge of a fact

that affects performance costs or duration; (2) the government was aware [plaintiff] had no

knowledge of and had no reason to obtain such information; (3) any contract specification

supplied misled [plaintiff] or did not put it on notice to inquire; and (4) the government failed to

provide the relevant information.” Giesler, 232 F.3d at 876 (citing Hercules Inc. v. United

States, 24 F.3d 188, 196 (Fed. Cir. 1994), aff’d, 516 U.S. 417 (1996)).

1. Whether the USACE Withheld Superior Knowledge of a Minimum

Pipe Size

Plaintiff argues the government failed to disclose its superior knowledge of the 12”

minimum sufficient discharge pipe size in the 2014 solicitation. Pl.’s MSJ at 65. According to

plaintiff, a 12” discharge pipe was necessary to do the project, evidenced by the fact that four out

of the five solicitations preceding 2014 required “[a] hydraulic (pipeline) dredge plant of

sufficient size (minimum 12” at discharge).” Id. at 61–62 (citing the 2002, 2007, 2009, and 2011

solicitations for dredging the waterway); see also Ex. J. at 78 (the 2015 resolicitation reinserted

the 12” minimum discharge pipe size). The government withheld the pipe size information to

increase competition on the solicitation, argues plaintiff. Pl.’s MSJ at 65. Plaintiff states it “was

led to believe that its Toyo pumps, with their 10” pipes, would be sufficient to move the

described materials.” Id. Plaintiff asserts the minimum pipe size qualifies as superior

knowledge because the Competition in Contracting Act (“CICA”) required the government to

use the least restrictive specifications to complete the job in the pre-2014 solicitations. Pl.’s

Reply at 22–23 (citing 41 U.S.C. § 253(a) (1994); 10 U.S.C. § 2305(a)(1) (1994); 48 C.F.R. §§

11.002(a)(1)(ii), 14.101(a) (1998)). 9 Therefore, plaintiff argues if the minimum 12” pipe size

was the least restrictive specification before 2014, then it must have been the minimum sufficient

pipe size in 2014. Id.

The government responds, “[t]here is no evidence in the record to support [plaintiff’s]

assertion that USACE believed that ‘a narrower pipe was not sufficient’ at the time of the project

9

The statute plaintiff cites, 41 U.S.C. § 253(a), last appeared in the United States Code in 2011, when Congress

recodified title 41. See generally Pub. L. No. 111-350, 124 Stat. 3677 (2011). The language of former § 253(a) now

appears in 41 U.S.C. § 3301 (2018).

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solicitation, or at any time at all for that matter.” Def.’s Cross-MSJ at 42. According to the

government, eliminating the minimum pipe size requirement was an effort to create a

“performance specification” based solicitation. Id. (citing Def.’s Cross-MSJ App. at 480 (“[T]he

whole point of a performance contract, performance-based contract, is that we don’t dictate

means and methods. If we wanted to do that, we would have put it in the specs and it would not

have been a performance-based contract.” (deposition of contracting officer Elizabeth Chien at

71:2-8)). The government argues there is no evidence 12” is the minimum size necessary, and if

it were, the government would not sabotage its own contract by intentionally withholding a

required specification. Def.’s Reply at 21. The government asserts even plaintiff does not

believe a 12” pipe is required because plaintiff argues it could have completed the project with

more time using its 10” pipe. Def.’s Reply at 21–22.

Regarding the first element, whether plaintiff “undertook to perform without vital

knowledge of a fact that affects performance costs or duration,” there is no dispute plaintiff was

unaware of the 12” minimum pipe size requirement from past solicitations because the USACE

removed that requirement in 2014. Pl.’s MSJ at 61–63; Def.’s Cross-MSJ at 41–42; Giesler, 232

F.3d at 876. The government also removed the provision notifying bidders of the availability of

prior dredging records, which would have presumably included the past solicitations with the

minimum pipe size requirement—all five of the previous solicitations and the 2015 resolicitation

contained the prior dredging record notice. See Ex. K (the 2002, 2003, 2007, 2009, and 2011

specifications all stating “records of previous dredging, sediment analyses, and detailed current

conditions surveys are available for inspection”); Ex. J. at 78 (same). Plaintiff accordingly had

no way to learn of this fact, even if it wanted to. Giesler, 232 F.3d at 876.

Further, the government included the 12” minimum pipe size requirement in four of the

five previous solicitations for this dredging contract, and then reinserted the requirement in the

2015 resolicitation after plaintiff failed to perform the contract with its 10” pipe. Pl.’s MSJ at

61–62 (citing the 2002, 2007, 2009, and 2011 solicitations for dredging the waterway); Ex. J. at

78 (the 2015 resolicitation). The CICA requires the government to only use restrictive

conditions “to the extent necessary” to complete the job. 48 C.F.R. § 11.002(a)(1)(ii); 41 U.S.C.

§ 3301(a); 10 U.S.C. § 2305(a)(1) (requiring agencies to “solicit bids or proposals in a manner

designed to achieve full and open competition for the procurement.”). Assuming the government

abided by the law in the years before and after 2014, the inclusion of a minimum 12” pipe size

necessarily implies this is the least restrictive means to complete the contract—the government

even stated 12” is the minimum “sufficient” discharge pipe size. Ex. K at 9, 13, 16, 21 (the

2002, 2007, 2009, and 2011 solicitations all describing a 12” pipe size as minimally sufficient)

Ex. A at 3, ECF No. 80-1 (deposition of USACE project manager John Pell at 14:15–25

(excerpts)) (stating the government believed in 2009 12” was the minimum sufficient pipe size).

Accordingly, under this particular dredging contract, the government made the minimum

discharge pipe size into “knowledge which is vital to performance of the contract.” McCormick,

18 Cl. Ct. at 265; Util. Contractors, Inc., 8 Cl. Ct. at 52; Giesler, 232 F.3d at 876.

The government argues a smaller pipe size could be sufficient to complete the project,

but the government’s argument misses the point. Def.’s Cross-MSJ at 41–42. For years, the

government identified 12” as the minimum “sufficient” pipe size to complete the project. Ex. K

at 9, 13, 16, 21 (the 2002, 2007, 2009, and 2011 solicitations all describing a 12” pipe size as

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minimally sufficient). Even if a narrower pipe size may have been sufficient under the right

circumstances as the government asserts, Def.’s Cross-MSJ at 42, that does not change the fact

the government made pipe size vital to the contract and then failed to disclose it. Giesler, 232

F.3d at 876. Once the government sets a minimum requirement for a solicitation, it is not

required to maintain that minimum requirement for every subsequent solicitation. Where,

however, the government establishes a minimum requirement that it uses for several years—one

it identifies multiple times as minimally “sufficient”—and then fails to inform bidders that it has

removed the minimum requirement, the government impermissibly withholds vital knowledge.

Giesler, 232 F.3d at 876; Panoramic Studios, Inc. v. United States, 413 F.2d 1156, 1166–67 (Ct.

Cl. 1969) (“[T]he Government has an affirmative duty to reveal what it knows to bidders . . . .”);

Helene Curtis Indus., Inc. v. United States, 312 F.2d 774, 778 (Ct. Cl. 1963) (citation omitted)

(“Although it is not a fiduciary toward its contractors, the [g]overnment—where the balance of

knowledge is so clearly on its side—can no more betray a contractor into a ruinous course of

action by silence than by the written or spoken word.”); Util. Contractors, Inc., 8 Cl. Ct. at 52.

Lastly, the minimum pipe size affected the performance costs and duration of the

contract, as evidenced by the significant delays and costs caused by clogs in plaintiff’s 10” pipe.

Pl.’s MSJ at 41–54 (citing Ex. H at 37–51 (plaintiff’s interrogatory response including photos of

debris and description of the clogs and delays arising therefrom); Ex. L (daily construction

reports of the delay cause by machinery clogs)); Tr. at 20:1–11 (plaintiff’s counsel stating debris

would make it through the equipment, only to clog plaintiff’s discharge pipe, forcing plaintiff to

cease dredging “to raise up a section of the sunken pipe and try to get it out”). Although the

difference between a 12” pipe and a 10” pipe appears minor, a 10” pipe has a 31% smaller cross-

sectional area than a 12” pipe. 10 Pl.’s MSJ at 65. This change affects the fluid velocity and

pressure drop which, in turn, affects dredging performance. A smaller pipe would also increase

the likelihood of delays due to clogs than would otherwise occur with a larger pipe. See Ex. L

(daily construction reports of the delay caused by machinery clogs). Accordingly, the Court

finds plaintiff “undertook to perform [the contract] without vital knowledge of a fact that affects

performance costs [and] duration.” Giesler, 232 F.3d at 876. Plaintiff has successfully shown

the first element of the superior knowledge doctrine for minimum pipe size. Id.

Regarding the second element, whether “the government was aware [plaintiff] had no

knowledge of and had no reason to obtain [the] information,” the USACE admitted it removed

the pipe size requirement to increase bidding on the project, so it must have known plaintiff

lacked that knowledge. Id.; Ex. A at 3 (deposition of USACE project manager John Pell at 15:3–

12 (excerpts)) (stating the government removed the minimum sufficient pipe size due to the

project only receiving “one bid or no bids”). The government does not argue plaintiff had reason

to obtain the pipe size information, either; instead, despite its solicitations before and after 2014

defining 12” as minimally sufficient, the government rests on its assertion a smaller pipe size

was sufficient. Def.’s Cross-MSJ at 41–42. Even assuming plaintiff had reason to obtain the

pipe size information, it could not because the government also removed in 2014, and reinserted

in 2015, the notice to bidders that records of previous dredging are available for inspection. See

10

The cross-sectional area of a circular pipe is a function of its radius squared: 𝐴𝐴 = 𝜋𝜋𝑟𝑟 2 . Accordingly, by allowing

plaintiff to proceed with a 10” diameter pipe instead of a 12” diameter pipe, the government allowed plaintiff to

perform with dredging equipment comprising a 31% lower cross-sectional area, which undoubtedly affected

performance.

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Ex. K (the 2002, 2003, 2007, 2009, 2011, and 2014 specifications); Ex. J at 10 (the 2015

resolicitation). The Court finds the government was aware plaintiff “had no knowledge” of the

12” minimum pipe size requirement “and had no reason to obtain such information.” Giesler,

232 F.3d at 876. Plaintiff satisfies the second element of the superior knowledge doctrine for

minimum pipe size. Id.; GAF Corp., 932 F.2d at 949; Hercules Inc., 24 F.3d at 196.

For the third and fourth elements, whether the contract specification misled or put

plaintiff on notice to inquire and whether the government failed to provide the relevant

information, the government failed to indicate that pipe size would be important to completing

the project. See Def.’s Cross-MSJ App. at 1–130 (the 2014 dredging contract). Without prior

dredging records or any reason to doubt the sufficiency of its equipment to complete the project,

plaintiff would have no reason to inquire about such a detail. See Ex. K (the 2002, 2003, 2007,

2009, and 2011 specifications, but not the 2014 specification, all stating “records of previous

dredging, sediment analyses, and detailed current conditions surveys are available for

inspection”); Ex. J. at 78 (the 2015 specification stating the same); Ex. J at 10, 63–64 (plaintiff

has over 60 years of Pacific Northwest experience dredging ports, rivers, and waterways,

averaging 200,000 cubic yards dredged annually). The government’s silence as to pipe size

could mislead bidders to surmise a pipe size much smaller than 12” would be adequate, without

knowing the government for years described 12” as the minimally “sufficient” size. See Helene

Curtis Indus., Inc., 312 F.2d at 778 (“Although it is not a fiduciary toward its contractors, the

[g]overnment—where the balance of knowledge is so clearly on its side—can no more betray a

contractor into a ruinous course of action by silence than by the written or spoken word.”). The

government does not argue plaintiff was on notice or that it provided the relevant information.

See Def.’s Cross-MSJ at 41–43; Def.’s Reply at 21–22. Accordingly, the Court finds the

contract specification did not put plaintiff on notice to inquire about pipe size and the

government failed to provide the relevant information. Giesler, 232 F.3d at 876. Plaintiff

satisfies the third and fourth elements of its superior knowledge doctrine claim for minimum pipe

size. Id.

The Court finds no dispute of material fact that the government withheld superior

knowledge of a minimum sufficient pipe size. Id.; Matsushita, 475 U.S. at 587. The Court

grants plaintiff’s motion for summary judgment and denies the government’s motion for

summary judgment on this issue. Giesler, 232 F.3d at 876; GAF Corp., 932 F.2d at 949;

Hercules Inc., 24 F.3d at 196.

2. Whether the USACE Withheld Superior Knowledge of Log Traffic

Plaintiff alleges the government knowingly withheld superior knowledge of log traffic

because “[i]t removed the warning about large logs and trees moving with the currents and

damaging contractor’s equipment.” Pl.’s MSJ at 71. Plaintiff argues it bid on the solicitation at

issue “without knowledge” of this “vital information.” Id. As a result, plaintiff states “its pipes

were destroyed by the logs[,] negatively affecting production and the repetitive costs associated

with fixing broken pipes (labor, equipment, and replacement pipe) affect the total cost of the

project.” Id. Additionally, plaintiff argues any bidder inquiry regarding log traffic did not

become part of the contract because the government did not incorporate them by amendment.

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Pl.’s Reply at 24–25 (citing Per Aarsleff A/S v. United States, 829 F.3d 1303, 1311 (Fed. Cir.

2016)).

The government responds to plaintiff’s log traffic claims by stating, “[t]he solicitation

warned bidders that they must ‘be satisfied before submitting [a] bid as to the hazards likely to

arise from weather conditions,’ and further warned bidders to expect to encounter ‘sunken logs’

and ‘stumps,’—which would obviously have been ‘floating logs’ at some point in time.” Def.’s

Cross-MSJ at 44 (citing Def.’s Cross-MSJ App. at 43, 123 (contract)). Plaintiff was also warned

about floating log traffic in a bidder inquiry, according to the government, which described

“water conditions that can change quickly due to weather and to be aware of trees coming down

the river.” Id. (citing Def.’s Cross-MSJ App. at 282 (15 August 2014 bidder inquiry)). By

warning of log traffic in a bidder inquiry prior to plaintiff’s bid, the government asserts the

information was reasonably available so plaintiff’s superior knowledge claim must fail. Def.’s

Reply at 22–23.

Regarding the first element, whether plaintiff “undertook to perform without vital

knowledge of a fact that affects performance costs or duration,” plaintiff asserts, and the

government does not dispute, it “undertook to perform the dredging at issue without knowledge

that large logs and trees move with the currents and can damage [its] equipment.” Pl.’s MSJ

at 71; Giesler, 232 F.3d at 876. Plaintiff argues, undisputed, “[t]he log traffic affected

performance and costs” due to the logs repetitively breaking plaintiff’s pipes. Pl.’s MSJ at 71;

Giesler, 232 F.3d at 876. This issue is uncontested; accordingly, the Court finds plaintiff has

satisfied the first element of its log traffic superior knowledge claim. Giesler, 232 F.3d at 876.

Regarding the second, third, and fourth elements of plaintiff’s log traffic superior

knowledge claim, id., plaintiff fails to satisfy these elements because plaintiff has not shown that

knowledge of floating log traffic was “not reasonably available to bidders.” McCormick, 18 Cl.

Ct. at 265 (quoting Util. Contractors, Inc., 8 Cl. Ct. at 52). On 15 August 2014, ten days before

plaintiff submitted its bid, a bidder inquiry was entered warning of “water conditions that can

change quickly due to weather and to be aware of trees coming down the river.” Def.’s Cross-

MSJ App. at 282 (15 August 2014 public bidder inquiry warning of log traffic). The solicitation

warned that “bidders will be held to have reviewed the questions and responses in ProjNet-BID

prior to bid submission.” Def.’s Cross-MSJ App. at 133 (the 2014 solicitation). It was plaintiff’s

standard practice to review such inquiries when preparing a project bid. Def.’s Cross-MSJ App.

at 287, 359, 390–91 (depositions of MIC employee Michael Harrison at 31:9-20, MIC co-owner

Joseph Bernert at 25:2-13, and MIC President David Bernert at 21:25-22:3, all testifying they

typically review bidder inquiries). Yet plaintiff does not argue, nor does it present any evidence,

that it ever reviewed the bidder inquiries prior to bidding on this particular contract. See Pl.’s

Reply 24–25; Def.’s Cross-MSJ at 6 (citing multiple depositions of plaintiff’s employees

testifying they typically review bidder inquiries but did not in this instance). In addition, the

contract warned plaintiff of “sunken logs” and “stumps,” which were necessarily floating logs at

some point. Def.’s Cross-MSJ App. at 123 (the 2014 contract stating “[t]he [c]ontractor may

encounter . . . sunken logs [and] stumps”). Accordingly, plaintiff cannot show the government

was aware plaintiff had no knowledge of log traffic and had no reason to obtain such

information, element two, because such information was “reasonably available to bidders.”

McCormick, 18 Cl. Ct. at 265 (quoting Util. Contractors, Inc., 8 Cl. Ct. at 52); Giesler, 232 F.3d

- 37 -

at 876. Plaintiff cannot show the supplied contract specification misled it—element three—

because the contract warned plaintiff of “sunken logs” and “stumps,” and the bidder inquiries

plaintiff was required to review warned of floating log traffic. See Def.’s Cross-MSJ App. at 123

(the 2014 contract); McCormick, 18 Cl. Ct. at 265; Giesler, 232 F.3d at 876. Plaintiff lastly

cannot show the government failed to provide the log traffic information because it provided the

relevant bidder inquiry ten days before plaintiff submitted its bid and warned plaintiff of sunken

logs and stumps, element four. Giesler, 232 F.3d at 876; Delhur Indus., Inc., 95 Fed. Cl. at 457

(citing Randa/Madison Joint Venture III, 239 F.3d at 1270–72) (“A contractor has a duty to

review information referred to and made available for inspection in the contract documents.”).

The Court finds no dispute of material fact that the government did not withhold superior

knowledge of log traffic. Giesler, 232 F.3d at 876; Matsushita, 475 U.S. at 587. The Court

grants the government’s motion for summary judgment and denies plaintiff’s motion for

summary judgment on this issue. GAF Corp., 932 F.2d at 949; Hercules Inc., 24 F.3d at 196.

3. Whether the USACE Withheld Superior Knowledge of Debris

Like log traffic, plaintiff argues it bid on the solicitation without knowledge of the

“substantial quantities of man-made debris and sunken vessels” in the boat basin. Pl.’s MSJ at

76. Plaintiff states, “[t]he debris affected performance and costs as [plaintiff] could not dredge

when its dredge was clogged by debris or its dredge was damaged by sunken vessels, and the

repetitive costs . . . of removing clogs and debris (labor, equipment, and replacement equipment)

affect the total cost of the project.” Id. The government knew plaintiff was unaware of the man-

made debris, according to plaintiff, because it removed the warnings from past solicitations of:

“Debris including fish nets, steel trolling wire, and machinery may be found in the basin area

requiring frequent downtime for cleanouts and disposal. . . . Sunken boats, fishnets and other

miscellaneous debris may be encountered . . . .” Id.; compare Ex. K at 1–2 (2014 solicitation)

with id. at 9–10 (2011 solicitation), and id. at 13 (2009 solicitation), and id. at 16 (2007

solicitation), and id. at 19 (2003 solicitation), and id. at 21–22 (2002 solicitation). Plaintiff

asserts a pre-bid site visit would not have revealed the debris at issue. Pl.’s Reply at 25; see Ex.

J at 73 (the resolicitation stating, “[p]ortions of the marina boat basin have not been dredged

since 1982.”). Plaintiff therefore claims the government withheld superior knowledge. Pl.’s

MSJ at 76.

The government responds by stating the solicitation warned about “miscellaneous

debris,” just as the pre-2014 solicitations characterized the debris of which plaintiff complains.

Def.’s Cross-MSJ at 44–45; but see Tr. at 202:5–8 (government counsel stating, “in hindsight,

would it have been even clearer to keep [the warning] language in [in 2014]? Sure. Did the

government put that language back in later? Sure.”). The government also asserts the existence

of debris was reasonably available if only plaintiff conducted a pre-bid site visit. Def.’s Cross-

MSJ at 45 (citing Def.’s Cross-MSJ App. at 526–27 (email internal to plaintiff describing steel

and lead line in the dredging area an employee witnessed on a 30 September 2014 visit)).

For the first element of plaintiff’s debris superior knowledge claim—whether plaintiff

“undertook to perform without vital knowledge of a fact that affects performance costs or

duration”—plaintiff alleges it lacked any “knowledge of the substantial quantities of man-made

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debris and sunken vessels it encountered in the [b]oat [b]asin.” Pl.’s MSJ at 76; Giesler, 232

F.3d at 876. The government does not dispute plaintiff’s lack of knowledge as to debris in the

boat basin. See Def.’s Cross-MSJ at 44–45. No evidence in the record indicates plaintiff had

knowledge of the over thirty years of man-made debris or sunken vessels accumulated in the

boat basin. See Ex. J at 73 (the 2015 resolicitation stating, “[p]ortions of the marina boat basin

have not been dredged since 1982”). The effect debris had on plaintiff’s costs and performance

is also undisputed. See Pl.’s MSJ at 76; Def.’s Cross-MSJ at 44–45; Ex. H at 37–51 (plaintiff’s

interrogatory response including photos of debris and description of the clogs and delays arising

therefrom); Ex. L (daily construction reports of the delay cause by clogs)); Tr. at 20:1–11

(plaintiff’s counsel stating the debris would make it through the equipment, only to create a clog

in plaintiff’s discharge pipe, forcing plaintiff to cease dredging “to raise up a section of the

sunken pipe and try to get it out”). Accordingly, the Court finds plaintiff “undertook to perform

without vital knowledge of a fact that affects performance costs or duration.” Giesler, 232 F.3d

at 876.

Regarding the second element—whether “the government was aware [plaintiff] had no

knowledge of and had no reason to obtain the information,” id.—in the five preceding

specifications for this project, the government warned: “Debris including fish nets, steel trolling

wire, and machinery may be found in the basin area requiring frequent downtime for cleanouts

and disposal. . . . Sunken boats, fishnets and other miscellaneous debris may be encountered

. . . .” Ex. K at 9–10, 13, 16, 19, 21–22 (comparison of solicitations from 2014, 2009, 2007.

2003, and 2002). In 2014, the government instead stated bidders “may encounter accumulations

of forest trash, sunken logs, stumps, and miscellaneous debris. . . . Except as indicated, the

[g]overnment has no knowledge of cables, pipes, or other artificial obstructions or of any wrecks,

wreckage, or other material that would necessitate . . . additional equipment for economical

removal.” Ex. K at 1–2 (2014 solicitation). The government posits its “miscellaneous debris”

warning justifies its ignorance as to plaintiff’s lack of knowledge of the man-made debris and

vessels—it does not. Def.’s Cross-MSJ at 44–45; Giesler, 232 F.3d at 876. By warning of

miscellaneous debris, 11 such as forest trash, logs, and stumps, while simultaneously denying any

knowledge of artificial obstructions or wrecks, the government effectively guaranteed any

contractor would have no advanced knowledge of the artificial debris it would encounter.

Fehlhaber Corp., 151 F. Supp. at 825 (“Plaintiff had a right to rely on the [g]overnment’s

specifications and drawings and the [g]overnment is bound by any assertions made

therein . . . .”). From a bidder’s perspective, if the contracting agency preemptively stated it had

no knowledge of such things, then most bidders would exercise their “right to rely on the

11

“Ejusdem generis is a tool for determining ‘the correct meaning of words when there is uncertainty. Ordinarily, it

limits general terms which follow specific ones to matters similar to those specified.’” Bay Cnty., Fla., 796 F.3d at

1376 (quoting Gooch, 297 U.S. at 128). Accordingly, understanding “miscellaneous debris” in the context of the

2014 specification, it must be limited to natural items arising from a forest environment. Ex. K at 1–2 (2014

solicitation); Bay Cnty., Fla., 796 F.3d at 1376. The government argues this interpretation is “completely illogical”

because “common sense” would dictate the presence of some man-made debris. Def.’s Reply at 20. This

interpretation follows naturally, however, from the “context” of the government’s specification. Enron Fed. Sols.,

80 Fed. Cl. at 393. The very next paragraph in the specification denies having any knowledge of artificial

obstructions or wrecks, so to interpret the government’s warning of “miscellaneous debris” in the previous

paragraph as including artificial obstructions or wrecks is what would be “completely illogical.” Ex. K at 1–2 (2014

solicitation); Def.’s Reply at 20. The government cannot claim it warned plaintiff of artificial debris in one breath

and deny any knowledge of artificial debris in the next.

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[g]overnment’s specifications,” as it would be highly unlikely any investigation or inquiry on the

part of the bidder would reveal any more information. Id. By making such patently false

representations, the government must have been fully aware plaintiff was without knowledge of

the over thirty years of man-made debris and sunken vessels that awaited plaintiff in the boat

basin. Giesler, 232 F.3d at 876. Plaintiff could not possibly possess knowledge which the

on-site contracting agency allegedly lacked. Morrison-Knudsen Co. v. United States, 345 F.2d

535, 539 (Ct. Cl. 1965) (“It was not incumbent upon the plaintiff, prior to submitting its bid and

entering into the contract, to conduct its own investigation in order to ascertain the truth or falsity

of the defendant’s positive assertions . . . .”). The government was quite aware of artificial

obstructions and wrecks when it drafted the 2002, 2003, 2007, 2009, and 2011 specifications, so

it was baseless for the government to deny having any such knowledge in the 2014 specification.

See Ex. K (comparison of solicitations from 2014, 2011, 2009, 2007, 2003, and 2002); Ex. A at 4

(deposition of USACE project manager John Pell at 21:8–18 (excerpts)) (stating the warnings

were removed to increase bidding, not because the artificial obstructions and wrecks had been

cleaned up); Ex. J at 73 (the 2015 resolicitation stating, “[p]ortions of the marina boat basin have

not been dredged since 1982,” which the government presumably knew in 2014).

Regarding whether plaintiff had reason to obtain the debris information, plaintiff’s failure

to “examine the site of work and verify the character or materials,” as the contract expressly

advised, is not fatal to plaintiff’s claim. Def.’s Cross-MSJ App. at 123 (the 2014 contract). The

man-made debris plaintiff encountered were beneath the water and invisible prior to bidding on

the contract. Pl.’s Reply at 20 (citing Second Bowser Decl. Ex. X at 3, ECF No. 88-3

(deposition of contracting officer Bonilie Lackey at 80:17–19 (excerpts) (“That’s why we don’t

have site visits for dredging contracts, because there isn’t anything to see above water.”). The

USACE contracting officer acknowledged a site visit would not reveal what is beneath the water.

Id. Accordingly, the government was also aware plaintiff “had no reason to obtain the

information,” because a site visit would not have led plaintiff to discover the significant quantity

of man-made debris it encountered dredging the boat basin. 12 Giesler, 232 F.3d at 876.

Further, the government argues “some amount” of artificial debris should have been

expected because “context defines a contract and the issues deriving thereof,” Enron Fed. Sols.,

80 Fed. Cl. at 393, and language “must be given that meaning that would be derived from the

contract by a reasonabl[y] intelligent person acquainted with the contemporaneous

12

The government asserts the debris was reasonably available to plaintiff because a pre-bid site visit would have

revealed the man-made debris. Def.’s Cross-MSJ at 45. The government argues the information was reasonably

available because plaintiff, on a post-bid site visit, observed chunks of steel being used as anchors, observed

fishermen discarding lead line into the water, and learned vessels had previously sunken in the marina. Id. Even if

plaintiff learned of these things prior to bidding, however, none of them would have informed plaintiff of the over

thirty years of man-made debris accumulated from the boat basin’s use as a “garbage dump.” Ex. A at 18

(deposition of USACE project manager John Pell at 135:9–22 (excerpts)) (acknowledging the USACE’s difficulty

with getting Tribe members to stop dumping garbage in the marina); Ex. J at 73 (the resolicitation stating,

“[p]ortions of the marina boat basin have not been dredged since 1982.”); McCormick, 18 Cl. Ct. at 265.

Additionally, hearing of a few sunken vessels in the channel through a conversation with a local dock manager does

not make knowledge of sunken vessels “reasonably available.” Id. The government cannot turn contractors on site

visits into detectives on crime scenes for the purpose of uncovering government-withheld vital information. Id.;

Morrison-Knudsen Co., 345 F.2d at 539 (“It was not incumbent upon the plaintiff, prior to submitting its bid and

entering into the contract, to conduct its own investigation in order to ascertain the truth or falsity of the defendant’s

positive assertions . . . .”).

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circumstances.” Armour of Am., 96 Fed. Cl. at 737 (citation omitted); Def.’s Reply at 20. Even

accepting the government’s argument as true—plaintiff should have expected some artificial

debris—no contractor could have discovered the boat basin contained over thirty years of man-

made debris accumulated from its use as a “garbage dump.” Giesler, 232 F.3d at 876 (“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.”); Ex. J at 73 (the resolicitation stating, “[p]ortions of the marina

boat basin have not been dredged since 1982.”); Bowser Decl. Ex. A at 18, ECF No. 80-1

(deposition of USACE project manager John Pell at 135:9–22 (excerpts)) (acknowledging the

USACE’s difficulty with getting Tribe members to stop dumping garbage in the marina). The

Court finds “the government was aware [plaintiff] had no knowledge of and had no reason to

obtain the information” pertaining to artificial debris. Giesler, 232 F.3d at 876. Plaintiff

successfully establishes the second element of its debris superior knowledge claim. Id.; see also

McCormick, 18 Cl. Ct. at 265.

For the third element—whether the contract specification misled plaintiff or did not put it

on notice to inquire, Giesler, 232 F.3d at 876—the 2014 specification, as discussed under

element two above, gave plaintiff no advanced knowledge of the artificial debris it could expect

to encounter. Ex. K at 1–2 (2014 solicitation). The specification preemptively stated the

government had no knowledge of artificial obstructions or wreckages, giving plaintiff no reason

to inquire about such things. Fehlhaber Corp., 151 F. Supp. at 825 (“Plaintiff had a right to rely

on the [g]overnment’s specifications and drawings and the [g]overnment is bound by any

assertions made therein . . . .”). By making such representations, the government misled plaintiff

regarding the government’s knowledge of the man-made debris and wreckages present in the

boat basin. Giesler, 232 F.3d at 876; Ex. J at 73 (the resolicitation stating, “[p]ortions of the

marina boat basin have not been dredged since 1982”); Ex. A at 18 (deposition of USACE

project manager John Pell at 135:9–22 (excerpts)) (acknowledging the USACE’s difficulty with

getting Tribe members to stop dumping garbage in the marina); Ex. K at 9–10, 13, 16, 19, 21–22

(the government warning bidders about artificial debris and sunken vessels in 2002, 2003, 2007,

2009, and 2011). Moreover, although plaintiff failed to perform a pre-bid site visit, the USACE

contracting officer acknowledged a site visit would not reveal what is beneath the water. Ex. X

at 164 (deposition of contracting officer Bonilie Lackey at 80:14–19 (excerpts)). Accordingly,

even if plaintiff performed a site visit, the significant quantity of man-made debris would have

nevertheless been “unknown and . . . not reasonably available” to plaintiff. 13 McCormick, 18 Cl.

Ct. at 265 (quoting Util. Contractors, Inc., 8 Cl. Ct. at 52). Plaintiff successfully establishes the

third element of its debris superior knowledge claim. Giesler, 232 F.3d at 876.

Regarding the fourth element, whether “the government failed to provide the relevant

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