Nova group/tutor-saliba v. United States

Sn the Anited States Court of Federal Clauns

Nos. 15-885C, 16-925C

(Reissued: March 17, 2022)!

MM Re eK Contract Disputes Act;

Construction; Type I Differing Site

Condition; Type II Differing Site

Condition; Defective Specifications;

NOVA GROUP/TUTOR-SALIBA, A Joint

Venture,

Design Specifications; Suspension of

Critical Path Work; Excusable

Delay; Constructive Acceleration;

Damages; Overtime; Lost

Productivity; Modified Total Cost

Approach; Equipment Expense;

Reopening the Record to Admit an

Exhibit Post-Trial; FAR 52.244-4;

FAR 52.243-4(d).

Gerald Scott Walters, Smith Currie & Hancock, LLP, 245 Peachtree Center Avenue, NE,

2700 Marquis One Tower, Atlanta, GA 30303-1227, and Brian S. Wood, and Sarah K. Carpenter,

Smith Currie & Hancock, LLP, 1025 Connecticut Avenue, NW, Suite 600, Washington, DC,

20036, for Plaintiff.

Plaintiff,

Vv.

THE UNITED STATES,

Defendant.

x + & + &£ © & £ & & H& HF X

RAK ARK KKK KK ARK AKA KAKAKRAKRAKRAKR AKER

Joseph H. Hunt, Robert E. Kirschman, Jr., Steven J. Gillingham, and Adam E. Lyons,

United States Department of Justice, Civil Division, Commercial Litigation Branch, P.O. Box 480,

Ben Franklin Station, Washington, D.C. 20044, for Defendant. David M. Marquez, Naval

Litigation Office, Office of General Counsel, United States Department of the Navy, 720 Kennon

St., Room 223, Washington Navy Yard, D.C. 20374, and Melissa L. Baker, Andrew J. Hunter, and

Kristin B. McGrory, United States Department of Justice, Civil Division, Commercial Litigation

Branch, P.O. Box 480, Ben Franklin Station, Washington, D.C. 20044, of Counsel.

POST-TRIAL OPINION AND ORDER

WILLIAMS, Senior Judge.

These consolidated Contract Disputes Act (“CDA”) cases come before the Court following

atrial on liability and damages. Plaintiff Nova Group/Tutor-Saliba (“NTS”), a joint venture raises

two claims. First, Plaintiff seeks $1,881,900 for a constructive change due to the Government’s

! The Court issued this opinion under seal on February 28, 2022 and directed the parties to

file any proposed redactions by March 14. Because the parties requested no redactions, the Court

reissues the opinion as is.

questioning of its design of a pier at the Puget Sound Naval Shipyard. The Government’s issue

with the design caused a stoppage of critical path work, an independent review after the

Government previously approved that design, and an ensuing acceleration of work. Second,

Plaintiff seeks $10,498,284.85 for extra work caused by differing site conditions or defective

specifications. For the reasons stated below, the Court grants Plaintiff's design-related claim in

part and denies its differing site conditions/defective specifications claim.

Findings of Fact?

The Pier B Project

The P-356 Carrier Vessel Nuclear (“CVN”) Maintenance Pier Replacement Project

(“Project”) at the Puget Sound Naval Shipyard and Intermediate Maintenance Facility was a design

and construction project for the replacement and upgrade of various waterfront substructures at

Naval Base Kitsap, Bremerton, Washington. JX 2.1; DX 2.5. The Project involved the demolition

of the existing Pier B (“Old Pier”), a 60-foot wide and 1,175-foot long pier, and the design and

construction of an 85-foot wide and 1,325-foot long replacement pier (“Pier B”) for the berthing

of CVN-class aircraft carriers, supporting vessels, and submarines for repair operations. JX 2.536,

.2618; Tr. 78.

The Old Pier extended south into Puget Sound from the east-west shoreline. See JX

2.1216; PX 39.36. Pier B was to partially overlap the area of the Old Pier. While Pier B would

share its western border with the entire Old Pier, it was to be longer to the south, and wider to the

east. See PX 39.36; Tr. 82-84. The Project also contemplated that the contractor would join Pier

B and a new parallel structure to the east, the Mole Quaywall, to create a contiguous surface. JX

2.537, .1220; compare JX 2.1219 with JX 2.1220. The drawing below indicates the location of

Pier B (outlined in red) as compared to the Old Pier:

These findings of fact are derived from the record developed during a 12-day trial.

Additional findings of fact are in the Discussion. The Court uses “PX” to cite Plaintiffs exhibits,

“DX” to cite Defendant’s exhibits, “JX” to cite joint exhibits, and “Tr.” to cite testimony. The

Court does not correct grammatical errors in quotations from the record.

«

?

“ i Wi6-67

| & weer Gp Wre-68166

Approximate Location

ices-203 oc Mole Quaywall

oe

GpHces-P6o

B2 =~

j (Sincere

e

Approxi ion Pie!

Approximate Location Pier B Frierto Demolition:

4 foe

5155

>

3END

id, Octagonal, Pre

ce-i@ ~

a n. Solid, Octagonal

1K a

CMD te Pile withaut Stes

jgnation and Ap

NB ® in. Borings NB-1 tl

Previous Boring Designaton and I

Location by Shannon & Wilson P-366 CVN Pier Replacement

Naval Ba >

Bremerton

SW06-B-1 @

Previous Horing Designaton and

HC06-104 @

gton

bonng locations were

e considered apon

Designation ang

SITE AND EXPLORATION PLAN

3. Shannon & Wilson boring locations perfo

SWO6-B-5) were surveyed by KPFF Seale in Feet

May 2011 21-1-21017-101

SHANNON & WILSON, INC. FIG. 4

Cesta and Ervioamenil Gonmuliat

4 Barings performed for the current study were taped from existing features

PX 39.36.

In addition to work on Pier B, the Project required that the contractor construct a new Mole

Quaywall -- a continuous steel-coated sheet pile bulkhead with solid prestressed concrete piles,

approximately 22-feet, 6-inches wide by 1,000-feet long, that would buttress the west side of Dry

Dock 6, which ran parallel to the Old Pier. Under this Project, the contractor was also to demolish

and replace portions of Quaywall 729 -- “a two-level reinforced concrete structure consisting of a

concrete deck, columns, and framing members, supported by timber piles.” JX 2.536; Tr. 79-80,

88; Tr. 1947-48.

The Shannon & Wilson 2006 Report

Prior to seeking proposals for the Project, the Navy hired a construction engineering firm,

KPFF Consulting Engineers (“KPFF”), and its geotechnical subcontractor, Shannon & Wilson,

Inc. (“Shannon & Wilson’), to conduct a preliminary geological study. DX 2.1, .5; Tr. 456. On

April 24, 2006, Shannon & Wilson provided its conclusions to KPFF in its Preliminary

Geotechnical Report (“2006 Report”). DX 2.1; Tr. 541.

The 2006 Report contained “the results of the geotechnical baseline information for the use

by design-build (DB) contractors, and conceptual geotechnical engineering recommendations for

use by KPFF Consulting Engineers (KPFF) in evaluating potential structure configurations for the

project.” DX 2.5. The 2006 Report specified: “[t]he recommendations provided in this report

should not be used for final design.” DX 2.7. In addition, the 2006 Report expressly stated that it

“was prepared for the exclusive use of KPFF and NAVFAC NW,” and that it “should be made

available to prospective DB contractors for information on factual data only, and not as a warranty

of subsurface conditions such as those interpreted from the subsurface profile and presented in the

discussion of subsurface conditions.” Id.

For its evaluation and findings regarding Pier B, Shannon & Wilson relied on “existing

subsurface information from previous projects performed at or near the project site,” as well as

drilling and sampling five borings during a two-and-a-half-week field exploration. DX 2.7-.8, .37.

“[T]he subsurface explorations were performed along the east side of the existing Pier B,” and “no

borings were performed overwater in the slip between the drydock mole and the pier, or to the

south of the existing pier.” DX 2.9.

Based on the data, the 2006 Report concluded that the subsurface beneath the proposed

new Pier B was comprised of four layers in descending order: (1) fill deposits; (2) estuarine

deposits; (3) beach deposits; and (4) glacial-overridden deposits (advance outwash and fluvial

deposits). DX 2.10-.11, .38. The fill and estuarine layers were uncompacted. DX 2.12. These

layers were comprised of soft soils -- “loose to dense, sand to gravelly sand and sandy gravel soil”

in the fill layer and “sandy, clayey silt, to clayey silt” in the estuarine layer. DX 2.10. The beach

layer consisted of “dense to very dense sand to gravelly sand,” with thicknesses ranging from five

to 20 feet along the Old Pier. DX 2.11. The glacial layer, below elevations of 30 to 60 feet, was

comprised of sand and gravel, and “based on [Shannon & Wilson’s] observations during drilling,

these very dense deposits likely contain[ed] cobbles.” Id. The 2006 Report used the Unified Soil

Classification System, which defines “dense” as 30 to 50 “blows” per foot and “very dense” as

more than 50 blows per foot. DX 2.128.° Gary Horvitz, Vice President and a Senior Principal

Geotechnical Engineer at Hart Crowser, Inc., explained that “very dense” was “defined by the

standard penetration test resistance” and meant “that the blow count is greater than 50 blows per

foot, so it’s a very high-strength, competent material.” Tr. 1756-58.

The 2006 Report contained the following diagram depicting Pier B’s subsurface profile:

3 Blows per foot is a geotechnical measurement that means the number of times a hammer

weight needs to be dropped to penetrate one foot. See DX 2.130-36.

re) PU TaRESUUEN ie rruaraE Pig Uae koe ees roar rmamnn nee

Approximate Elevabon in Feat (PENS Datum)

B2-A Top of Pier B B+ B-5 4s

MW-380 L418 \n 7s) Tn .

l \

20

Loose

dense, 2

Clean io a

sy.

sate v

100 GRAVEL

2. - i

7.

wae iz : a

" a i E

So; tats a a

™~ FF ’ 2

? rs Na =

Ls £

eo- &

|

Vertical Scale mn Feet Honcontal Scate wn Feet

Vertical Exaggeraton = 4.

1. This subsurface progie is genemlized trom materials

observed in soil borings. Vanabions may exist

between profile and actual conditions.

NOTES -356 CVN Malenance Pir Replacement

| GENERALIZED SUBSURFACE

2. The muciine adjacent io tha Guay Wall was PROFILE ALONG PIER

eshmated for: eld measurements using a weeghieg

tape. April 2008 21-1-20435-002

2. The current boring locations ware surveyed by KPFF, SHANNON & WILSON, INC. FIG. 3

DX 2.38.

The 2006 Report anticipated that the contractor would need to drive concrete displacement

piles, which “would be difficult to penetrate a sufficient distance into very dense glacial soils” and

would likely require stingers to help penetrate the denser soils. DX 2.12. A stinger is an “H-beam

that has been cast into [the pile] that may be 10 feet or 5 feet into it,” and extends 10 feet below

the pile. Tr. 434. The stinger is “smaller in diameter [than the pile] by 10 to 12 inches.” Id. The

purpose of the stinger is to make it easier to penetrate the soil. Tr. 502-03. The following is a

photo of a typical stinger used at Pier B:

JX 49.135; Tr. 447.

The 2006 Report warned that, “any pile installation for the proposed pier would encounter

moderate to hard driving conditions in the existing fill deposits and soft to moderate driving

conditions in the existing estuarine deposits, and hard driving conditions in the dense to very dense

beach deposits and glacial soils.’ DX 2.12; Tr. 542. In general, hard driving involves repeated

hits at a pile with a high-quality hammer.* Tr. 407-08 (Mr. Brenner understanding “hard driving”

to mean “hit[ting] a pile 60 to 70 times to make it go a foot’).

In addition to hard driving, the 2006 Report stated that “[o]bstructions, such as large

cobbles, boulders, or miscellaneous construction debris could be encountered within the fill and

underlying soft estuarine deposits” and reiterated that cobbles or boulders could be encountered in

the glacial deposits. DX 2.13. There was also “an existing riprap layer along the slope east of and

below the [Old Pier]” and “[c]oncrete debris” on the slope east of the Old Pier. DX 2.13. The

2006 Report advised that “the contractor should develop remedial measures to mitigate the impact

of obstructions,” and that obstructions included cobbles and boulders. DX 2.13; Tr. 544.

The RFP

On November 7, 2007, NAVFAC issued Request for Proposals (“RFP”) number N44255-

08-R-6000, for the Project. JX 1.7. The RFP informed bidders that NAVFAC sought a contractor

“to demolish the existing Pier Bravo and design and construct a new ship repair wharf, including

the replacement of approximately 300 lineal feet of quay wall (Structure 729), the strengthening

[of] the sheet pile wall west of the Dry Dock 6 mole, and the demolition of Pier 8.” Id. Award of

a firm-fixed price contract with a maximum funding limitation of $142,000,000 would be made

to the successful bidder. JX 1.9.

The RFP included the following clauses to be incorporated into the Contract: FAR 52.236-

2, Differing Site Conditions (April 1984), 52.236-15, Schedules for Construction Contracts (April

1984), 52.242-14, Suspension of Work (April 1984), 52.243-4, Changes (June 2007), 52.249-10,

and 52.236-21, Specifications and Drawings for Construction (February 1997) - Alternate 1 (April

1984). JX 1.52-.54, .64.

The contractor had to submit its design at various stages for review, including at 70 percent

and 100 percent. JX 1.335. The RFP put bidders on notice that “Government review or approval

of any portion of the proposal or final design shall not relieve the contractor from responsibility

for errors or omissions with respect thereto.” JX 1.337.

Regarding the scope of work for Pier B, the RFP stated in pertinent part:

1. Demolish the existing 60-foot wide by 1197-foot-long Pier B .. . . [and] the existing

30-foot-wide by 104-foot long reinforced concrete platform and prestressed

concrete piling supporting Substation 78... .;

2. Demolish all mechanical and electrical utilities to and on the existing Pier B. . . .;

3. Provide a new 85-foot-wide by 1,325-foot-long pier identified as Pier B (solid

prestressed concrete piles and/or prestressed concrete cylinder piles -- metal pipe

4 See Tr. 555 (explaining that when hard driving, “you would [typically] do the WEAP

[Wave Equation Analysis of Piles] analysis to figure out a proper hammer that’s strong enough,

have enough energy to drive the pile”). WEAP is “a wave equation analysis that is done on a

particular set of soil conditions and with a particular pile and equipment to model its performance.”

Tr. 111.

piles shall not be used in-water to support the pier), including prestressed concrete

fender piles, prestressed concrete reaction piles, reinforced concrete and/or

prestressed concrete deck system, corner fender units, rubber fender units,

supporting members, and associated hardware. . . .;

10. Provide a new concrete Quaywall 729 structure (approximately 30 feet wide by 580

feet long) .. . . [and] [s]eparate the Quaywall 729 structure from Pier B with a

seismic joint that has a minimum width of 1 foot 6 inches;

14. Provide a new concrete Mole Quaywall structure (approximately 22 feet 6 inches

wide by 1000 feet long)... . [and][s]eparate the Mole Quaywall structure from Pier

B with a seismic joint that has a minimum width of 1 foot 6 inches. . . .;

JX 1.456-57.

The contractor had responsibility for the design subject to specified design requirements:

The Contractor shall design and construct all new waterfront substructures and

transitions to existing structures that are to remain, that are required for the project,

and as identified on drawings provided in Part 6 of this RFP, except for identified

prescriptive elements that shall be constructed as indicated in the Prescriptive

Specifications in Part 5 of this RFP and on the Prescriptive Drawings in Attachment

B of Part 6 of this RFP. Each substructure and transition shall meet all loading

requirements for dead (gravity); soil pressure; static (live, crane, etc. including

impact where applicable); environment (seismic, wind, current, berthing, and

mooning); and long term (creep, shrinkage, temperature). Each substructure and

transition shall also meet structural design requirements as specified in the

performance technical specification of Paragraph H1010 in Section H10 of Part 4

of this RFP and the prescriptive specifications in Part 5 of this RFP.

JX 1.489; Tr. 117 (Mr. Fedrick stating “[t]his project and many other projects that are design-build

projects, the design responsibility is that of the contractor and not the responsibility of the owner;

in this particular case, the Navy.”). The prescriptive elements in the RFP included the design of

Quaywall 729 and the design of a “typical section” of the Mole Quaywall, both of which the

Navy’s subcontractor Berger ABAM had designed. JX 1.488-90, .499; Tr. 120; Tr. 1945; Tr. 2326.

The RFP provided that the contractor was to determine where the piles would be placed and stated

that “[a] variation of more than 1 percent from the vertical for plumb piles, or more than 2 percent

from the required angle for batter piles, is not permitted.” JX 1.333, 570.

The RFP directed that the contractor was to “[r]emove existing piles” by employing Best

Management Practices (“BMPs”) “to minimize disturbance of [the] contaminated layer of

sediment underlying deposited clean sediment.” JX 1.471. These BMPs included “cutting or

breaking [an] existing pile at the mudline where feasible to maintain sediment stability” and

reinforcing the sloping surface and subsurface layers under the new Pier B project. JX 1.471; see

also Tr. 1805; Tr. 1761.

In addition to the design and build requirements for the Pier B project, the RFP required

the contractor to develop the following items:

a. Geotechnical engineering report, including soil borings as needed for final

design

b. Requirements for indicator test piles?

c. WEAP [Wave Equation Analysis of Piles] analyses for proposed pile hammers

and pile types

d. Use of dynamic pile analysis and CAPWAP (Case Pile Wave Analysis

Program) during the installation of indicator test piles

e. Pre-construction survey of any settlement-sensitive structures near pile driving

or fill placement included in this project

f. Piles to be pulled versus cut-off of at the mudline for Government review.

JX 1.461.

Although a “geotechnical engineering baseline study” was included with the RFP and

provided observations and recommendations for Pier B, the Mole Quaywall, and Quaywall 729,

the contractor was required to develop a post-award “[g]eotechnical engineering report” after

performing “a detailed and complete geotechnical engineering investigation, including additional

borings as needed for the final project design and construction.” JX 1.461, .464, .2354; JX 2.541,

.544. The contractor’s geotechnical engineering report was to be a final design submittal. JX

1.505, .555, .565. The RFP directed that the contractor’s geotechnical engineering report be

“based upon Government-provided subsurface investigation data and all additional field and

laboratory testing accomplished at the discretion of the Contractor’s Geotechnical Engineer.” JX

1.505. KPFF was NTS’ geotechnical engineer and used Shannon & Wilson to prepare the required

post-award geotechnical engineering report (“2009 Report”). JX 10.1; see also JX 4.4, .10.

Additionally, the RFP required the successful bidder to develop and conduct an indicator

pile program, in which the contractor would drive at least five indicator piles in the area of the

proposed Pier B and three in the area of the Mole Quaywall. JX 1.560. Specifically, the RFP

stated:

Install indicator piles unless noted otherwise. The load capacity of piles, as

determined by pile driving formulas or geotechnical analysis, shall be verified by

dynamic pile driving analyzer (PDA) performed on each indicator pile, including

Case Pile Wave Analysis Program (CAPWAP). Indicator pile installation

procedures shall be as directed by the Contractor and shall use the same hammers

and other pile installation equipment as for the production piles. The indicator pile

procedures shall include underwater inspection in accordance with Paragraph H10

1.3.4. Results of the indicator pile program and final pile installation criteria shall

be submitted to the Contracting Officer prior to ordering or installation of the

production piles. The Contractor shall select the number of indicator piles to be

> The terms “test pile” and “indicator pile” were used interchangeably throughout this

litigation. Tr. 496.

installed for each structure, however the numbers shall be at a minimum the

following:

a. Pier B - a total of five indicator piles spaced evenly along the Pier, with a

minimum of two piles of each size used

b. Mole Quaywall - a total of 3 indicator piles along the structure

C. Quaywall 729 - indicator pile requirements determined by the Contractor.

If used, local demolition may be required to install the indicator piles.

d. Craneway on the West Mole of Dry Dock 6 - indicator pile requirements

determined by the Contractor. If used, the Contractor shall avoid damage

to existing features, including underground utilities and tie rods providing

lateral support to the existing steel sheet pile wall along the West Mole of

Dry Dock 6.

After inspection, all indicator piles of precast/prestressed concrete shall be removed

and stored by the Contractor until 30 days after the installation of all production

piles is completed. Precast/prestressed concrete piles shall be cut off and removed

without damage and shall be accessible to the Contracting Officer at all times.

JX 1.559-60.

The GEBS

The Solicitation included as Attachment J, an October 23, 2007 geotechnical engineering

report, prepared by Hart Crowser, entitled, “Geotechnical Engineering Baseline Survey” (the

“GEBS”). JX 1.2351-602; Tr. 1735. Hart Crowser was “the geotechnical engineer acting as a

subconsultant to BergerABAM, who was under contract to the Navy to develop [the] design for

the Mole Quaywall and to provide design-build RFP products for the Pier B design-build portion

of the project.” Tr. 1735. The scope of Hart Crowser’s work included performing additional

explorations for the project and developing geotechnical engineering documents, such as the

GEBS, in support of the design of the Project. Id. Hart Crowser completed nine new soil borings®

and collected and analyzed soil samples. JX 1.2362. Hart Crowser’s role with respect to Pier B

involved “demonstrat[ing] to the Navy how the pier might be built,” while recognizing that the

contractor was “free to do the final design how they see fit based on whatever is prescribed in the

contract documents.” Tr. 1737.

The GEBS was the “final milestone” of Hart Crowser’s recommendations -- “all of the up-

front work, including exploration, testing, analyses, and development of those recommendations,

were done prior to that date.” Id. The purpose of the GEBS was to provide NAVFAC and its

Contractor “with subsurface information, interpretation, and geotechnical engineering

recommendations for the development of the design-build RFP documents for the P-356

Maintenance Pier.” JX 1.2362

6 See Tr. 2353 (“Borings are where a subsurface investigation is performed consisting of

drilling a hole into the ground, and then at discrete and distinct elevations, taking samples to test

the relative density or stiffness of the subsurface materials at prescribed depths; also, to obtain

physical samples of the soil for visual observation as well as laboratory testing.”).

Garry Horvitz, senior principal geotechnical engineer and Vice President of Hart Crowser

and the firm’s principal in charge of the Pier B replacement project, signed the GEBS and oversaw

its preparation. Tr. 1728-36; JX 1.2353. As the principal in charge, Mr. Horvitz had “the last say

on the technical aspects of the project and the budgets that [Hart Crowser] prepare[d].” Tr. 1736.

Mr. Horvitz explained that the designer of record was not required to follow the recommendations

in the GEBS. Tr. 1740. He testified:

So we asked the Navy, ‘Do we have to rely on the design recommendations

that are in the report?’ And the Navy said, “No. You’re going to be stamping the

design. It’s your design. Take the factual information, and do what you will with

it.’

Tr. 1742.

Site and Subsurface Conditions Described in the GEBS

The GEBS’ conclusions regarding site and subsurface conditions were based on 48 hollow-

stem auger borings: “nine new soil borings performed by Hart Crowser, five older borings

previously performed by Hart Crowser, [and] thirty-four borings performed by others.” JX 1.2365.

Of the nine new borings performed by Hart Crowser, six “were performed in front of and behind

Quaywall 729, and were executed with the intent of determining the extent and elevation of the

fill and the native soil interface along the quaywall” and three “were performed to determine

maximum pile lengths and fill density along the existing Pier B and Mole Quaywall.” JX 1.2365.

The GEBS diagram below shows the location of the borings in relation to the location of

the proposed Pier B:

¥ vcore |

=

Gusywall 728 —H_

(7 Proposed Rlaplacemant Pie 7 ff x

é f

~ ao

ee

i Se ae

meaPe i RleB80) ioe

ae

5

z 1 Owe-ssse Owssr Dey Dodk 8

Exploration Location and Number

A A

RCOE101@ Hart Growser Boring (Curent Study) t + Approximate Cross Section Location and Designation

al

6-550 Previous Boring Seale im Feet 1737800 1woF

Wola: Al chawalions bused on PENE Datum, . — nar

JX 1.2416.

10

The GEBS instructed that the contractor should perform additional exploration it deemed

necessary, stating:

The Contractor should review the existing soil explorations and determine if they

are adequate to complete the design of the proposed project. If the quantity or

location of the soil explorations is insufficient, the Contractor should include

additional soil explorations in their scope of work.

To date we have only been able to advance a limited number of borings along the

mole quaywall due to logistical constraints. It would be beneficial to conduct

additional borings along the length of the mole quaywall once the site is open for

construction.

JX 1.2367-68; see Tr. 1748.

Like the 2006 Report, the GEBS indicated the presence of four layers of soil under the Old

Pier, from top to bottom: fill, estuarine, beach, and glacially overridden soils. JX 1.2365. The

GEBS stated that the fill layer was “loose to dense, wet, gray, clean to slightly silty, gravely SAND

to sandy GRAVEL,” and that estuarine deposits were “very soft, wet, gray-brown to gray-green,

organic, clayey SILT and silty CLAY with a trace of sand and sea shells.” JX 1.2366-67. The

GEBS stated that the beach deposits were “dense to very dense, wet brown, trace to slightly silty,

slightly gravelly to very gravelly SAND,” and noted that “[t]his material is competent and would

support a portion of the foundational loads.” JX 1.2367. Finally, the GEBS described the glacial

soils as consisting of overridden material in the “material forming the upper portion of the glacial

soils,” while “the majority of the glacial soils consist of very dense, wet, gray brown, slightly silty

to silty, gravelly SAND to sandy GRAVEL,” which is “competent and would support foundational

loads.” Id.

Just as the 2006 Report, the GEBS indicated uncertainty as to the density, material, and

estimated elevations in soil areas outside the borings. JX 1.2367-68. The GEBS provided the

following diagram of the subsurface layers under Pier B based on former borings, including the

2006 borings and new borings driven by Hart Crowser:

11

North HCO5-104 L-48-57 Top of Existing PierB — —HE06-105 _ South

| Elev. 126.5" |

‘Oy M380 ‘SW06-B-24 Quaywall 728 Swo06-B4 SWO06-B-5 \ 140

| vw) (1 Ww) ww) \ SWO06-5-6

120 * Lose to danse, ye 120

? 7 sony GRANEL t 2 ¥ ‘¥ MLLW (109.4"

(Fill 7

100 Pt K — Existg 00

= Sandy SILT rT i, | PN {= E

é 80 an a a HHS aamanieg Medium stiff, sandy TT,’ ° |? 80 6

é [2 “SILT owen =, fe acne Lt, LL, &

afm Creo ~ ss fs a %

fs | ee fe leet tote

5 }- sus ae 8 65 ae -0 to La §

8 40 a pte 3 ° fare TP Le. (eaturna) : ¢

i [er Ski sgeay fer smioowemnen | Me ETT]

a a Rowerke Sava dae ia Deposit) [a Par = 7 20 &

0 : Fe ne | 0

-20 tar | -20

Very loose, silty SAND —

z B-B D->

: 40 40

é HG06-105 Exploration Number

+ (345°) (Offset Distance and Direction)

: Exploration Location

Water Level At Time of Drilling

Hote: The ett ne are ted po inet bean 1 Sanat Penan Rosine ee

conditions based on currently available data. a HARTCROWSER

—%?——|— _ Approximate Soil/Geolagic Contact Vertical Scale in Feet 17339-00 10/07

Vertical Exaggeration x 5 Figure 3

GOVv00002417

JX 1.2417.

Mr. Horvitz explained why the diagram included question marks:

Geotechnical engineers do that to point out the fact that the information that we

have is very specific to the particular location of the boring. And we are doing our

best to interpret or interpolate what the conditions are between borings. But, you

know, Mother Nature can be fickle. And sometimes between two borings, that line

that we draw may be higher. It may be lower. We really don’t know.

And there was a time when geotechnical engineers got sued a lot because they

didn’t put those question marks on there, and people would take that at that -- take

that line as the gospel.

Tr. 1751.

Mr. Sarieddine, Shannon & Wilson’s vice president, who prepared the 2009 Report, agreed

the question marks in the GEBS meant “unknown.” Tr. 567. KPFF’s owner, Mr. Johnson also

understood the question marks to mean unknown conditions. Tr. 788. The Government’s

geotechnical expert, Rudolph Frizzi, had the same understanding testifying that “a question mark

is unknown.” Tr. 2335.

This interpretation of the question marks is also reflected in the GEBS itself:

Please note that there is uncertainty in the estimated elevations for each soil unit;

the Contractor should consider adding additional borings along the western edge of

the pier. We recommend the Contractor add an appropriate cutoff length to the

overall pile length for contingency purposes to minimize delays and costs

associated with building up concrete piles in the field.

12

Given the uncertainty in the elevation rise of the glacial soils toward the north, we

recommend that the Contractor conduct further explorations to determine what

reductions in pile length[’], if any, are possible.

JX 1.2370-72. Additionally, when discussing subsurface data indicated by the GEBS, the contract

stated that “[v]Jariations may exist in the subsurface between boring locations.” JX 2.1041; see

also Tr. 789; Tr. 2354-55.

The GEBS also addressed pile drivability:

Pile driveability is, to a large degree, a function of soil conditions and pile hammer.

The soil conditions encountered in our explorations generally consist of fill,

estuarine deposits, beach deposits, and glacially overridden soils at depth.

Difficulties during pile driving may be encountered as a result of obstructions that

may exist throughout the areas where piles are anticipated to be specified. Such

obstructions may consist of riprap and other larger size material for piling driven

near the upper portion of the submerged mole slope along the west side of the mole.

In this area, it is likely that shallow obstructions could be pushed aside with the

piling to allow for pile driving at the design location. If deep obstructions are

encountered, the pile may need to be moved.

JX 1.2381 (emphasis added).

The GEBS’ Geotechnical Engineering Recommendations

At the outset, the GEBS recommended that existing piles under Pier B “remain in place

(i.e., broken off at the mudline)” to maintain seismic stability. JX 1.2369. With respect to the type

of piles, it stated:

We understand that 24-inch prestressed, solid, octagonal concrete piles are

preferred for much of the replacement of Pier B.... [W]e recommend that the piles

be driven to and tipped[*] a minimum of 5 feet into the glacial soils or practical pile

7 Pile length affects the ability of a pile to carry its load, a characteristic called “capacity.”

Tr. 1948-49. The more capacity a pile is designed to carry, the fewer number of piles are necessary

to support a structure. Tr. 1949. Mr. Sarieddine described “axial pile capacity”, stating:

It’s the capacity -- the piles -- to carry the load, it -- the pile gets capacity from the

sides, friction along its length, and the tip at the bottom. And to get the capacity

needed to carry that load, that’s how you determine how deep you have to take the

pile.

Tr. 477. Mr. Johnson also testified to his understanding that “there is a capacity that the pile can

have if it is driven to the certain tip elevations and within a certain amount of embedment into the

-- the glacial -- the glacial till or the -- the bearing strata.” Tr. 674.

8 The term “tipped” refers to the depth of the soil at which the lowest portion of the pile

would be driven. See Tr. 1773.

13

refusal. Assuming an approximate, practical pile refusal of 5 feet, piles should be

driven to a minimum of elevation 37 and 29 feet (PSNS Datum), for Stations 0+00

to 8+25 and 10+00, respectively, or 5 feet of embedment into the glacial soils as

shown on Figure 3. Tip elevations can be linearly interpolated between Stations

8+25 and 10+00, with approximately a drop of 1 foot in pile tip elevation per 22

feet south of Station 8+25. Note, practical pile refusal is a function of the hammer

selected by the Contractor, and therefore must be estimated during construction

with observation of the actual equipment and pile driving behavior.

JX 1.2371 (emphasis added).?

These statements are not determinations of practical pile refusal. See Tr. 1768. Mr.

Horvitz testified:

Q. [By Counsel for Defendant] Okay. And the language, “We recommend that

the piles be driven to and tipped a minimum of 5 feet into the glacial soils,” is this

telling the design-build contractor that the piles have to be driven 5 feet into the

glacial soils?

A. No. What we’re really saying there is we were anticipating that he would

need to do that to get the piles fixed enough, turn around and get the capacity that

he needed.

Q. And what is the effect of adding “or practical pile refusal”?

A. Well, it means that, you know, our anticipation is that if he’s going to get 5

feet of penetration into that material, he’s likely going to get capacity. But if he

gets capacity above that elevation, say in the beach deposits, whatever reason, we’re

okay with that.

Q. The next sentence states, “Assuming an approximate, practical pile refusal

of 5 feet, piles should be driven to a minimum of elevation 37 and 29 feet, for

Stations 0 plus 00 to 8 plus 25 and 10 plus 00, respectively, or 5 feet of embedment

into the glacial soils as shown on Figure 3.”

Are you setting tip elevations for the Pier B replacement project in that

sentence?

A. We’re not setting elevations. We are anticipating that that’s what would be

required. You’re not going to know exactly how deep the piles have to go until after

you’ve done some additional work in the form of indicator piles. At this point in

the process, that’s our best estimate. “Cause essentially somebody has to come up

with the budget, figure out how long the piles need to be.

Tr. 1767-68. The GEBS did not set pile tip elevations for Pier B. JX 1.2384.

Mr. Horvitz further explained:

? The final underlined sentence emphasizing that practical pile refusal depended on hammer

size and “must be estimated during construction with observation of the actual equipment and pile

driving behavior” is repeated in the RFP three times. JX 1.2371 (twice), .2373.

14

Q. [By Counsel for Defendant] In your experience, or would you have

interpreted this language to have required the tip -- or the piles to be driven to

Elevation 37 and 29 feet based on this paragraph?

A. Well, the -- the intention at the time was to tell the reader what we

anticipated would have to be done.

Q. Does that mean that you would have read this to reflect you had to drive the

piles to those particular elevations?

A. No. Which is why we have the term “practical refusal” in there.

Q. Would you read this language to mean that the budget is fixed for the rest

of the project based on these tip elevations?

A. No, not at all.

Q. And why do you say that?

A. Because this is our estimate of what we think might happen at this stage in

terms of what we know. But what the actual budget . . . is based on any additional

exploration information that was done. It would depend on the analysis that the

contractors, geotechnical and structural engineers do, how they interpret the data.

The same way we threw out the existing data or recommendations on Pier D and

did it ourselves, we would certainly expect that the design-build contractor’s design

team would do the same thing. So there’s -- in my mind, there was never any

intention of being something sacred about that language.

Tr. 1768-69.

In terms of equipment, the GEBS analyzed how piles were driving with a Delmag 46-23

hammer and a Delmag 62-22 hammer, but explained that “[o]ther hammer types with variable

energy settings may also be used.” JX 1.2386. The GEBS concluded that “the results indicate that

either of the [Delmag] hammers can be used to achieve the desired ultimate pile capacity of 1,000

kips,” or 10,000 pounds. JX 1.2389-90.

Hart Crowser “performed preliminary wave equation analyses using the computer program

Wave Equation Analysis of Piles (WEAP) to predict axial pile driving stresses and penetration

resistances during driving with different hammers.” JX 1.2386. The GEBS included the results

of this WEAP analysis but expressly stated “The Contractor should perform their own WEAP

analyses and submit the results for approval.” JX 1.2355, .2390.

Under “Additional Considerations,” the GEBS stated:

The output produced by the wave equation analyses depends on the pile, hammer,

and soil input parameters. We selected input parameters based on the results of in

situ tests, laboratory tests, pile parameters supplied to us by BERGER/ABAM

Engineers, and manufacturer-supplied hammer information. Actual field

conditions, project requirements, and hammer type and performance may vary from

what we have assumed and, therefore, the actual driveability and driving stresses

may differ from what we presented above. Finally, our analyses did not include

possible effects of pile installation such as interruptions to driving and subsequent

pile setup.

15

JX 1.2390 (emphasis added).

The GEBS stressed the value of an indicator pile program:

Based on past experiences within the PSNS and other Navy facilities, indicator piles

with dynamic pile testing provide extremely useful information to supplement soil

explorations and analysis for evaluating pile capacity and drivability. The purpose

of the indicator pile program is to verify the location of the top of the glacial soil

bearing layer(s) to aid in selection of pile tip elevations and lengths, and to verify

design shaft friction. The benefit of an indicator program with dynamic pile testing

over soil explorations is that the indicator piles may be used to assess pile capacities

and safety factors and drivability through dense zones of soil, and to identify

possible unforeseen circumstances.

JX 1.2391 (emphasis added). Again in discussing general pile installation recommendations, the

GEBS stated “It is very important for driven piles that indicator piles be installed before

construction of any particular segment. Subsequently, production piles can be ordered for the

segment taking into account the results of those indicator piles.” JX 1.2380; see also Tr. 1136-37;

Tr. 2355-56. The GEBS reiterated that “[w]e strongly recommend a minimum indicator pile

program for Pier B consisting of ten indicator piles... .” JX 1.2392.

The Prebid Site Visit

On November 27, 2007, interested bidders, including NTS’ former president, chairman,

and CEO, Ronald Fedrick, NTS’ project manager, Dana “Dan” Fox, and KPFF’s owner, Richard

Johnson, attended a site visit. JX 1.9; Tr. 77; Tr. 595-96. At the visit, NTS’ team members were

allowed to walk up and down the Old Pier. Tr. 121; Tr. 596.

NTS’ Bid for the Pier B Project

To prepare its bid, NTS “secured the professional services of KPFF Consulting Engineers

as the lead engineer... .” JX 4.3; see also Tr. 585. KPFF, as NTS’ potential subcontractor, would

be tasked with leading the design team that was also comprised of Sparling, Notkin Engineering,

and Shannon & Wilson. JX 4.4. For Shannon & Wilson, Ming-Jiun “Jim” Wu served as the

principal in charge on the Pier B Project. Tr. 458. Mr. Wu also served as the principal in charge

on the 2006 Report. Id.; DX 2.32.

NTS submitted its bid on January 22, 2008. JX 4.3. As part of its technical proposal, NTS

provided its “basis of design” -- a “sketch” of its final design with “a general summary of the

highlights of the design and how [NTS] intend[ed] to complete the project.” Tr. 2451; see also Tr.

2520; Tr. 670.

In its Basis of Design, NTS proposed a transverse batter pile system which “would consist

primarily of concrete pier bents spaced at 25 feet on center with eight 24-inch-diameter octagonal

solid concrete piles per bent carrying the vertical and lateral loads.” JX 4.198. Its design provided

for 54 east-west bents, with Bent 1 starting on the north end of Pier B and Bent 54 ending at the

south end of Pier B, and eight north-south rows, labeled Rows A through H:

16

Nore: sick Date: Jon 18, 2008-93.1:575m Fae: ¥:\IOP960 (Per 8 Novy C)\Pretminay\SHEET-23 dey

= SEU OMFETE CATON FoR

rat Pct Sam Fen. Ne SE et OW EAD S88 OF BE

a PAE CoP (TF)

ae ~ Ear)

noe | mnie q

_—-— bts CAE Gu

hc

CaP TOP CL ahd

comes ot ano, oe, | Ee Rr a oe 1 war

oa.) eames / = ome =

ais

ae

REVISIONS

Par STP

Wan EL 12 S

A

90 ST

weer

(tne. ACT PLL

(sesame tse

much Ag |

eae

acs

i

aaa

MME DUAL SRG

a

COHN Fa

EOMOSIES ALASTC

cara, TOP B12 ——

IMTeIoHS ROPE GUND

oe yh

ons

>] eu see, audio roman

WY OaL Fastinges ———t

mato te | fhe,

fare | figs

ame | Fle es

worn. =F =He E

1h c] =

| aysiy

inate Ie

J bs :

j mESED aoe

doe weno rt 4

ta

wwe ewe

a

| at

@®

SE. DN Sms oF UM EACH Te tan BAL a SCION = PIER _B

Pugs 10 BE QUOD HE Oe Sn LAER AS REGU TH

FSW HEAR we) UPL CaP

Pome Dale Gn SIDE 12. Fle OPS Pe ep Afi SIEET-D my a

JX 4.211-12. Pier B piles in Rows A and H, as well as all piles in Bent 1, were designed as vertical

(or plumb) piles. Id.; JX 50.1-.5; JX 53. Pier B piles in Rows B, C, D, E, F, and G were designed

17

in an east-west batter configuration.!° JX 4.211-12; JX 50.1-.5; JX 53. Plumb piles are vertical

piles “driven straight down into the ground without an angle to it,” while a batter pile “is driven at

an angle to provide a triangulated bracing to a structure.” Tr. 584.

In the Basis of Design, NTS outlined its plan to avoid interferences from preexisting piles

from the Old Pier:

The Design/Build team will develop a computer model of all existing and planned

pile locations to identify potential interferences. We will survey existing pile

locations after the existing Pier Bravo deck is removed. Where potential

interferences are identified, the structural plan for Pier Bravo will be modified as

needed. Possible modifications include, but are not limited to, adjusting the skew

angle on batter piles, changing the direction of the skew, adjusting the pile location

(for plumb piles), or adjusting the location of a bent line. In all cases, we will

conduct an analysis of the modified structure to ensure continued compliance with

all project requirements.

JX 4.195.

Contract Award and Pre-Design Work

On May 2, 2008, NAVFAC awarded NTS Contract No. N44255-08-C-6000 at a firm-fixed

price of $122,877,000. JX 2.1-.3. The Contract required NTS to begin performance within 15

calendar days and complete the Project within 1,345 calendar days after award. JX 2.1.

The Indicator Pile Program

In order to complete its design, NTS conducted its indicator pile program between

November 10 and December 9, 2008. JX 2.541; JX 10.15, .171-73. The Contract required NTS

to install, at minimum, “five indicator piles spaced evenly along the Pier, with a minimum of two

piles of each size used” and three indicator piles along the Mole Quaywall, and the GEBS “strongly

recommend[ed] a minimum indicator pile program for Pier B consisting of ten indicator piles.”

JX 2.649, .2640. The placement of the indicator piles was left to the contractor’s discretion. JX

2.649. NTS did not drive indicator piles in the footprint of the Old Pier, although the Old Pier

encompassed approximately 75 percent of the area where NTS planned to drive piles. Tr. 170; PX

34.4. As Mr. Fedrick testified during his deposition, NTS chose the location of the indicator piles

based on where the piles “would be in the permanent structure” to avoid added expense. Tr. 229.1!

NTS’ subcontractor, ACC, ultimately drove eight indicator piles between November 10

and December 9, 2008. JX 10.15, .171-73; Tr. 142; Tr. 495, 550. ACC drove five Pier B test piles

-- CP-1, CP-2, CP-3, CP-4, and CP-5 -- and three Mole Quaywall test piles -- CM-1, CM-2, and

10 Mr. Fedrick described the design stating that “we have B and C, which are two batter piles

that basically face each other; and then D and E, two batter piles that face each other; and F and

G, two batter piles that face each other, which is what we talk about were the transverse batters.”

Tr. 134.

iM The Court recognizes that on direct examination at trial, Mr. Fedrick testified that

NAVFAC “wouldn’t allow us to cut holes in the existing deck because they had to do a radiation

survey on the deck.” Tr. 146. The Court does not credit this testimony, as Mr. Fedrick

acknowledged this information came out of the trial preparation process. Tr. 227-28. The Court

credits Mr. Fedrick’s deposition testimony.

18

CM-3. JX 10.172; Tr. 142-43. None of the Pier B test piles were driven within the footprint of

the new Pier B. JX 10.26; Tr. 497-98. The Mole Quaywall test piles were within the footprint of

the new Pier B, but because the new Pier B is wider to the east than the Old Pier, the Mole Quaywall

test piles were still outside the footprint of the Old Pier. JX 10.15-16, .26; Tr. 331; Tr. 497-98.

NTS only drove plumb piles for the test program, although its design primarily used batter

piles. Tr. 549; Tr. 1819. This was because, as Richard Davis, a senior construction specialist at

BergerABAM, and Mr. Fedrick testified, it is not common to drive batter piles as part of a test pile

program. Tr. 1820; Tr. 167. Plumb piles and batter piles behave differently. Tr. 2005; Tr. 428-

29. According to Mr. Sarieddine, “for the plumb piles, if we drive the piles, doesn’t matter where

it ends. Ifit ends in refusal, we got enough base to carry the load.” Tr. 486. Batter piles, however,

“require uplift” and “deeper embedments.” Tr. 486-87. According to Mr. Branlund, a senior

project manager at Berger ABAM,

[t]rying to drive a new batter pile through an existing field of batter piles is a lot

more difficult than trying to drive a plumb pile straight down. Plus the plumb pile

system behaves in a different manner so that skew issues and things like that aren’t

-- aren’t important.

Tr. 2005. Reading from an email that he wrote, Mr. Branlund also testified that “batter piles are

temperamental with regard to inclination and skew. .. . Selecting a plumb pile scheme would have

been a whole lot easier to install and a lot more forgiving with respect to the problems with

location.” Tr. 2030. NTS drove test piles with and without stingers because the Pier B design

incorporated plumb piles “that did not require stingers and batter piles that did require stingers.”

Tr. 503.

The results of the indicator pile program were:

Table 3. Summary of Case Method Results

Pile Test Approx Blow Ram Average | Average Max.

Penetration Count Stroke Max, Max. Tension

Below Transfer Comp. Stress

Mud-line Energy Stress

(STK) (EMX) (CSX) (TSA)

ft blow/set ft kip-ft ksi ksi

CP-1 Drive 60 122/9" 9.9 112 5.5 14

CP-2 Drive 58 86/12" a7 110 5.3 1.6

GP-3 Drive 36 56/710" 10.2 122 5.1 0.9

CP-4 Drive 47 91/6" 9.8 98 4.7 1.6

CP-5 Drive 26 46/4" 6.9 52 3.4 1.3

CN-1 Drive 49 ori" 10.3 114 5.0 1.6

CM-2 Drive 32 68/8" a8 103 4.5 1.5

CM-3 Drive 35 Tati" 10.3 114 4.7 1.3

JX 10.173.

These results were based on using a Delmag 80-23 hammer. JX 10.172. ACC “elected to

use a Delmag 80-23 hammer in lieu of the recommended Delmag D62-22 or Delmag D46-23 to

19

ensure the piles could be driven to the desired elevation... .” PX 36.11. Mr. Fedrick testified

that the Delmag 80 hammer has “about a 30 percent greater capacity than what the Navy

geotechnical report said we should have to anticipate.” Tr. 144. Mr. Branlund confirmed that the

Delmag 80 was a stronger, higher capacity hammer than the Delmag 46 and Delmag 62. Tr. 2024-

25. Although Hart Crowser evaluated pile driving with the Delmag D46-23 and Delmag D62-22

and determined that the results indicated that either of the hammers could be used “to achieve the

desired ultimate pile capacity,” Hart Crowser made clear in the GEBS that other types of hammers

could be used and might even be preferable for some contractors. JX 1.2389-90.

The three test piles driven in the Pier B footprint did not have stingers and reached refusal

in the beach deposits, indicating the beach deposits were a competent bearing layer. Tr. 554-55

(Mr. Sarieddine stating that the beach deposits “turned out better than we expected” for piles

without stingers); Tr. 941-42.

Four test piles driven outside the Pier B footprint contained stingers. JX 10.15; Tr. 509.

Although the stingers attached to the tip of the test pile reached the glacial soils, the concrete test

pile itself stopped in the beach layer. JX 10.15; Tr. 506, 509, 554.

The Shannon & Wilson 2009 Report

The Contract required NTS to “[s]ubmit a written Geotechnical report based upon

Government-provided subsurface investigation data and all additional field and laboratory testing

accomplished at the discretion of the Contractor’s Geotechnical Engineer” and “include a cover

letter identifying any recommendations of the report proposed to be adopted into the design that

are interpreted by the Contractor as either conflicting with, or being modifications to, the

Geotechnical or Pavement related requirements of this RFP.” JX 2.593-94; Tr. 482.

On February 25, 2009, Shannon & Wilson produced the required geotechnical report. JX

10.1; Tr. 480-82. No cover letter was included, indicating NTS did not make any

recommendations that conflicted with the requirements of the RFP. Tr. 483. This 2009 Report

presented the results of Shannon & Wilson’s “geotechnical study completed for the new Pier B

structure only” and contained “the results of the geotechnical field explorations performed along

Pier B alignment and the results of laboratory tests performed on samples collected from these

borings.” JX 10.5. It also included “the results of a test pile program performed for the project

and... geotechnical engineering recommendations for design and construction of Pier B.” Id;

Tr. 1134.

At the outset, the 2009 Report stated that “[t]he analyses and recommendations contained

in this report are based upon site conditions as they presently exist, and further assume that the

explorations are representative of the subsurface conditions along the proposed pier alignment,”

with the primary assumption being “that the subsurface conditions everywhere are not significantly

different from those disclosed by the explorations.” JX 10.6. The report included four sections:

1) field explorations and geotechnical laboratory testing, 2) regional geology and subsurface

conditions, 3) engineering studies and recommendations, and 4) construction considerations. JX

10.7-.22.

In terms of field explorations, Shannon & Wilson conducted nine borings, five of which

were “completed along the Pier B alignment.” JX 10.7. These five borings, identified as NB-1

through NB-5, were completed prior to test piles being driven. JX 10.27. The locations of the

borings are shown below:

20

JX 10.26. NB-3, NB-4, and NB-5 were drilled on the edges of the Old Pier, while NB-1 and NB-

2 were drilled through the middle of the Old Pier. Id.; Tr. 2354; Tr. 2528. NB-1 and NB-2 were

“taken through manholes in the deck, which by the nature of their location would not be installed

close to the bents or where the existing piles were located.” Tr. 2528.

ot

With these extra borings, Shannon & Wilson updated the subsurface profile provided in

the GEBS as follows:

RSE cece

# Scand

eye rye

HCOE-105 |

feare |

a a

1M Pec Fleplacement

20 Kites

Bremerton, Washington

GENERALIZED SUBSURFACE

PROFILE A-A*

tomer 3 Vip ot catsedaty Cverriteten Seve

TS Aoounry 2008 ziebetoi toes

SARS S AORN | FIG.3

Cen Bolte of Boring

Fist... Gate Connphated

JX 10.27.

In its recommendations, premised on its analysis of the new and former borings and ACC’s

execution of the test pile program, Shannon & Wilson stated:

In general, the pile tip elevations recommended for piles with stingers are ten feet

lower than those [for] piles without stingers. In addition to the pile tip elevations

given in Figure 14, we recommend ordering piles with a minimum five additional

feet to account for unknown variations in the elevation of the competent bearing

soils which, if deeper than expected, could potentially require built-up extensions

on piles that prove to be too short.

JX 10.16.

21

The referenced Figure 14, a diagram of the recommended pile tip elevations for Pier B in

the 2009 Report, is reproduced below:

(58,48)

(28,18)

(33,23)

280 ale 280 aL 250 y= 20 mf 280

1

42008 Logins ea

Matchline

/

(41,34)

NOTES

ADJUSTED cling ranelved *2/31/2008,

1, This figure adapted from drawing file PB

LESS P-386 OWN Pier Replacernent

Naval Base Kitsap

Bremerton, Washington

A are recommended to determine the required pie lengths. (83, 73)

tenth should be determined basod onthe recommended — / \ 7 vs

he tip of thal pite is located. Tip Etevation-—“ Tip Elevation (PSNS Datum)

(PINS Datum) of Batter Pl RECOMMENDED TIP ELEVATIONS

4, To account for potertie! varlations tn suncuriace cenditars, we acammerd sal ¢ minimum ger) FOR PRODUCTION PILES

of S feet be added to the a lengths d

of Plumb File {Battor

determined trom the recummentied sie tip eevations, dod Pile

Recommended Pile Tip

February 2009 21-4-21017-003

5. Balter piles aré recommended to be.eruipped with 2 10-footlong stect HP t4x89 stinger, 3 Elevation Zanes ‘Boruary

SHANNON & WILSON, ING. FIG. 14

Sootecinial and Enw seria Cone .

3. For batter pile

tip elevation in

JX 10.38.

The 2009 Report described subsurface conditions and potential pile driving as follows:

[P]iles supporting the proposed pier would be installed through some fill material,

the dense beach deposits, and into the very dense glacial deposits. Based on the

anticipated subsurface conditions underlying the Pier B alignment, and the driving

conditions encountered during installation of the test piles, moderate to hard driving

conditions would likely be encountered in the beach deposits, and hard driving

conditions would be expected in the glacial deposits. As discussed earlier, we

recommend that the batter piles that will experience uplift (tension) loads be fitted

with 10-foot-long steel HP 14x89 stingers.

Riprap may be encountered in front of the Quaywall 729, near the north end of Pier

B. The proposed concrete piles may have difficulty penetrating through riprap. We

recommend that the contractor be prepared to drill, spud, or use some other

appropriate methods to penetrate through the riprap layers prior to pile driving.

JX 10.19.

LiDAR Survey

As stated in its Basis of Design, NTS, through a subcontractor recommended by KPFF,

conducted a LiDAR survey to develop a three-dimensional computer model of the existing piles

under the Pier B footprint to identify potential interferences. JX 4.195; Tr. 154-58. The survey

22

was conducted during the design process, after the Old Pier was demolished, with the exception

of the subsurface piles left in place. Tr. 216. The top of the pier had been removed and the piles

were cut off at the mudline, but any parts of the piles below the mudline were left in place.

Because NTS was planning on driving “450, 470 new piles around a[n] existing thousand

piles that were cut off’ and many of the existing piles were likely not “exactly where they’re

supposed to be,” the LiDAR survey was intended to inform NTS exactly where the existing piles

were located. Tr. 158. However, the survey could only image above the mudline -- the subsurface

positions of piles under the mudline had to be extrapolated. Tr. 232; Tr. 771. The results of the

survey did not cause KPFF to alter or modify its Basis of Design submitted to NTS. Tr. 683-84.

NTS’ Driving Difficulties at the Mole Quaywall

On February 12, 2009, NTS’ subcontractor, ACC, commenced pile installation at the Mole

Quaywall. See PX 25. ACC drove 13 plumb and 30 batter piles at the Mole Quaywall in February

2009, but the vast majority of the pile driving started in June 2009. PX 25.1-.2.

Unlike Pier B, where the design was to be done by the contractor, the Government designed

pile elevations at the Mole Quaywall and set these elevations at 38 feet for batter piles and 44 feet

for plumb piles. Tr. 815-16. After the indicator pile program, BergerABAM changed the design

tip elevations at the Mole Quaywall to vary in elevation depending on locations, with pile tips

designed to go deeper and shallower than the original elevation of 38 feet and 44 feet. Tr. 820-21;

Tr. 1950-51; PX 25. BergerABAM tended to design longer piles, because it was cheaper to cut

off piles that were too long than build up piles that were too short. Tr. 1952.

ACC could not drive some of the piles in the Mole Quaywall as deep as designed, resulting

in excessive cutoffs. Tr. 1992-93; Tr. 819-21 (Mr. Elgenson noting that most of the as-built tip

elevations were “higher than what was required” by the Government’s design); Tr. 192; JX 57.4.

Additionally, ACC was not able to drive the piles within the prescribed tolerance. Tr. 821. On

August 14, 2009, NTS completed the Mole Quaywall pile installation. PX 25.

NTS Finalizes Its Pier B Design

While beginning performance on the Mole Quaywall, NTS was still working on its Pier B

design. As required under the Contract, NTS had to provide NAVFAC with its design in stages.

JX 2.397. Robin Zylstra, the Construction Manager for NAVFAC, explained the process:

Designs -- certainly for a project this large, they are very iterative. You would have

the concept design and have that submitted and reviewed. You might go to 35 or

50 percent review, make comments, 70 percent, 100 percent. We also had

incorporated into this project RFP fast track designs, elements that we knew needed

to go quickly, get started early. We allowed them to submit on those. We would

review those and comment on those separately.

Tr. 2456.

In March 2009, NTS submitted its Fast Track No. 2 design submittal to NAVFAC on the

design of the Pier B piles. JX 24.3. On April 27, 2009, the Government returned the design with

a directive to “Revise and Resubmit” Fast Track No. 2, explaining that the Government required

revisions due to a concern that Pier B batter piles did not remain elastic during the transverse

contingency-level earthquake (“CLE”) event. Id. On May 5, 2009, KPFF provided the

Government “supplemental information demonstrating the elastic behavior of Pier B piles during

23

the transverse CLE event.” Id. In May 2009, NTS submitted a revised Fast Track No. 2 design

submittal, which the Government “Approved with Comment” on June 4, 2009. Id.

NAVFAC’s approval of this fast track design allowed NTS to proceed with Pier B pile

installation before final design approval. Tr. 2457-58. NTS accelerated construction of the first

half of the piles, with the second half to be produced after completion of the Pier B design “so that

that production activity for the piling and the installation activity could go on as the rest. . . of the

design was progressing” and meet the required end date. Tr. 667-68.

In May 2009, NTS submitted a 70 percent design submittal and on July 28, 2009, its 100

percent Pier B design to NAVFAC. Tr. 2001; PX 14.1. BergerABAM reviewed NTS’ submittals

on behalf of the Government for conformance with the RFP documents on technical and

engineering aspects of the design. Tr. 1954, 1958.

On October 26, 2009, NAVFAC approved NTS’ Final Design Submittal, but provided final

comments for NTS to address. JX 65; Tr. 2457, 2542. On November 12, 2009, NTS submitted

its final conformed design submittal to NAVFAC with responses to NAVFAC’s final comments.

JX 26.1.

ACC Raises Concerns About Excess Cutoffs For Pier B Piles

On August 19, 2009, four days after completing work on the Mole Quaywall, ACC began

to install plumb piles at Pier B. PX 21. As with the Mole Quaywall, NTS representatives observed

pile installation at Pier B. Tr. 179, 2721-22; Tr. 830; Tr. 1477.

On August 20, 2009, ACC began to install batter piles. PX 175.47. The first batter pile

ACC drove reached refusal “roughly 15 feet” above cutoff grade. Id. On August 24, 2009, ACC’s

Project Manager, James D. Carroll, informed Mr. Elgenson that “[t]o date, all driven Pier B piles

have excessive cutoff lengths, and ACC is concerned that this will be a problem over the entire

length of the Pier.” Id. On September 2, 2009, Mr. Elgenson, Tutor Perini’s senior project

manager, responded to ACC “that longer than usual pile cut offs are a result of existing unknown

geotechnical conditions and can be expected in this type of work” and that NTS did not believe

the scope of work had changed or that extra work was involved entitling ACC to additional

compensation. DX 23.1-.2. Instead, NTS directed ACC to review the plan sheets and pile driving

sequencing and stated that using “a shear with [a] crane for assistance” removing the excessive

cutoffs was “acceptable and typical industry standard.” DX 23.1.

To account for these geotechnical conditions and in response to the pile driving problems

at the Mole Quaywall, Shannon & Wilson revised its design pile tip elevations for Pier B between

February and October 1, 2009. Tr. 520, 560; see also PX 171; PX 172; DX 24. Piles in rows H

and G primarily were to be driven shallower between bents 10 through 31, and the remaining

design changes planned for piles to go deeper. Compare JX 10.38 with DX 24.1.

Pile Driving Issues

The majority of the Pier B piles were driven by ACC, NTS’ subcontractor. ACC was in

charge of driving all of the piles for NTS, including at both Pier B and the Mole Quaywall. Tr.

150-51; Tr. 349. The record shows that NTS had problems with ACC during the project. Although

ACC’s proposal contemplated using a template to drive piles and ACC used the template when

driving test piles, it did not use that template when driving Pier B piles. Mr. Fedrick testified as

to why ACC did not use the template:

24

With the complexity of the opposing batter piles on here, if you can imagine trying

to capture all eight of those piles, or even four of the eight piles, and have a system

which can be taken apart, put back together again. And we sat there, and I worked

with the operations manager of ACC on this for several weeks. And there was just,

unfortunately, no logical design we could come up with, with some basis to do that.

They had a concept at bid time. And it, quite frankly, just didn’t pan out.

Tr. 151. ACC was “going out of business,” and NTS was forced to finish “a good portion of

[ACC’s] work” -- including the additional 28 piles driven to correct pile misalignment. Tr. 152,

252. On the portion of the work NTS completed, it used a template. Tr. 152-53.

ACC did not have had a trapezoidal spotter or moon beam when driving piles, which would

make adjusting piles to account for skew more difficult, and its equipment “was not always

functional” requiring alternative methods to align the piles for skew. Tr. 2489-90; see also Tr.

1810-13; Tr. 2778-79.

NTS was dissatisfied with ACC’s performance. Tr. 251; DX 70.1. Mr. Davis, a Senior

Construction Specialist at BergerABAM, stated that he spoke with ACC personnel and got the

impression that the crew was not “the A-team” but they were “experienced enough” to do the

project. Tr. 1809. Mr. Brenner, a former ACC employee, similarly testified ACC’s team was

experienced, but he indicated there were problems with management. Tr. 361. Mr. Brenner

considered ACC’s management representative a “sand sweeper,” meaning he had experience in

street paving projects, not marine projects, and believed its project manager was in over his head.

Tr. 399-400. Mr. Brenner also testified:

Q. [By Counsel for Defendant] You also thought that when Danny [ACC’s

barge foreman] ran into problems on Pier B pile driving, he didn’t get support from

ACC management, right?

A. Yes.

Q. And because he didn’t get support, when Danny had problems, his answer

to that was to just keep driving, right?

A. Yes.

Tr. 400-01.

NTS Claims Differing Site Conditions at Pier B

Sometime between Mr. Elgenson’s September 2, 2009 letter dismissing ACC’s concern

about excessive pile cutoff lengths -- stating that “longer than usual pile cutoffs can be expected

in this type of work”-- and December 2009, NTS changed its position and formed the view that its

subcontractor, ACC, was encountering differing site conditions, as noted in the Remarks section

of a contractor production report. DX 23.1-.2; Tr. 963-64. The earliest remark to this effect in the

record was on December 8, 2009 in a daily contractor production report, PX 114.43.”

Specifically, according to that report, NTS “continued remediation of excessive length of

piling on pier B due to [Differing Site Conditions]” PX 114.43. Plaintiff's witness, Gary

Elgenson, the Senior Project Manager at Tutor Perini Corporation, stated that this was not an

Vo NTS kept records of activities via daily contractor production reports, which it submitted

each day to NAVFAC. PX 114; JX 2.355; Tr. 831, 833.

25

isolated incident and was reported in other contractor production reports. Tr. 833-34; see PX

114.49. However, in the September 2, 2009 letter to ACC, Mr. Elgenson stated:

You state that the pile cutoff lengths are longer than anticipated and require the use

of a concrete pile shear and crane assistance for removal. It is the Joint Venture’s

position that longer than usual pile cut offs are a result of existing unknown

geotechnical conditions and can be expected in this type of work. We consider the

use of a shear with crane for assistance as an acceptable and typical industry

standard. The Joint Venture does not believe that that the scope of your work has

changed, and there were discussions during the bid process that specifically

included this topic.

DX 23.1.

Mr. Elgenson testified as follows:

Q. [By Counsel for Plaintiff] Based upon your observations of the pile driving

and your examination of those records for the Mole Quaywall, how did the pile

driving compare to what was designed here, the design as shown?

A. We had difficulty driving the piles to the tip elevations that are indicated in

the plans. And there was a requi -- basically that there was excessive cutoff of piles

as a result of that.

Q. Based on those observations and the examination of the documents, how

did the pile driving at Pier B compare to the pile driving that you described at the

Mole Quaywall?

A. It was similar, in that we were unable to drive the piles to the specified tip,

which was, we -- the spec -- or were required to drive the piles to 5 foot into the

glacial till or practical refusal, and then we were unable to do that.

Tr. 817-18, 830.

In meeting notes from a December 17, 2009 production meeting, NTS described its “Pier

B Pile Driving Issues” under a section discussing old business:

Pile Driving Criteria- Due to the inability to drive piles to tip, KPFF is reviewing

the pile driving criteria with Shannon & Wilson and Bert Miner to mitigate costs

associated with excessive pile cut off. Broken Batter Pile- ACC advised that getting

back on a batter pile for a restrike/redrive is very difficult. ACC will provide more

information on the broken pile when it becomes available. Bert Miner believes the

pile broke 60 feet down. 9-2['9]; NTS will follow the driving criteria in the

specifications... . 10-1: NTS and ACC will stay with pile driving criteria that is

specified in the specs. NTS is casting piles with extra dowel tube length added in

to keep from coring and/or exposing stands. 10-2: ACC has moved to the end of

8 These bold numbers in NTS’ meeting notes refer to dates.

26

pier B to drive H row piles. Moving to the end should give the engineers better

length data. 10-3: KPFF is reviewing tip elevations to determine the uplift capacity

of the piles. The uplift capacity will decide if a pile will need to be removed and a

new pile driven in it’s place. NAVFAC requested [pile-driver analyzers] to be

performed on the pier B piles due to the low penetration elevations. 10-4: Restrikes

to be conducted on three piles. Meeting was held on the pile driving issues- meeting

minutes to be distributed. 10-5: ... ACC is waiting to cut piles until KPFF has

given official word to do so... . 11-2: A representative from Shannon and Wilson

is now on site counting the blows during the pile driving. The representative will

be to able make an onsite determination on the piles. Many piles are. . . out of

tolerance, way more then [sic] anticipated. KPFF will need to redesign the pile cap

for the areas where the piles go out of the design tolerance... . 12-2: Butt elevations

have an extreme variation, most are high... . NTS will be compiling the costs

related to pier B driving issues.

PX 116.6; see also Tr. 180-81.

A total of 104 piles reached refusal more than 12 feet higher than NTS’ designed elevations.

PX 132.4; see also PX 21; PX 22. Additionally, 278 piles did not penetrate through the beach

layer into the glacial layer, but not all of these piles were designed to penetrate through the beach

layer. PX 132.4. On March 4, 2010, NTS completed installation of the original Pier B piles. Tr.

218; see also Tr. 2624. NTS and its subcontractor, ACC, drove a total of 456 piles at Pier B. PX

132.3.

NTS Observes that Batter Piles were Driven Out of Tolerance

KPFF designed the Pier B batter piles to have a small amount of skew to prevent the driven

piles from interfering with each other or existing piles from the Old Pier. Tr. 754. The amount of

skew “varied from place to place” depending on the circumstances of a particular location, e.g.,

locations with existing piles sometimes required a “little bit more than typical amount” of skew.

Tr. 755. By February 2010, NTS observed that some of the batter piles driven as part of the Pier

B construction were out-of-tolerance “in terms of the skew angle that was utilized.” Tr. 756; Tr.

421-22. This resulted in reducing Pier B’s capacity “to take load in the east-west direction” and

“necessitated a fix.” Tr. 756-57.

On March 25, 2010, NTS sent a letter to its subcontractor, ACC, and informed ACC that

various batter piles had rotated past allowable skew angles:

During recent survey operations to determine batter and skew angles, it became

apparent that multiple batter piles are rotated beyond the allowable skew angle.

Preliminary engineering calculations suggest that these out of tolerance, excessive

skew angles will result in the batter piles being overloaded and thus subject to

failure.

Please consider this letter as notification that all costs for the replacement,

supplemental engineering, and other costs associated .. . will be tracked and back

charged to ACC’s account.

JX 13.1.

To correct the issue, NTS’ lead engineer, KPFF, “adopted a fix that added 28 new piles to

the pier” which brought “the load capacity back” into Pier B. Tr. 756-57. The design -- referred

27

to as Delta 12 -- also required NTS to construct new crossover beams to tie the 28 new piles into

the existing structure and strengthen pile caps “affected by the skew tolerance problems,” which

included “additional bumpouts, rebar changes, [and] pile connections.” Tr. 2495-96; see also JX

26.7; Tr. 756-58. Mr. Johnson, the owner of KPFF, the designer of record, testified that the Delta

12 redesign addressed issues that arose due to the construction of Pier B, not the design. Tr. 762.

On May 6, 2010, KPFF submitted to the Government the design calculations for the Delta

12 redesign. JX 26; Tr. 758-59. On May 27, 2010, the Government approved the Delta 12

redesign. JX 16.1. The redesign work was not implemented until later in the Project. Tr. 2557.

In the time between the approval of Delta 12 and the performance of the redesign work, NTS

continued to perform bent work at Pier B. Tr. 2557-58.

BergerABAM Raises a Concern with the Pier B Design

On November 6, 2009, NTS informed NAVFAC that NTS had installed two piles that had

not achieved specified compressive strength requirements. PX 61.1. NTS’ letter stated in part:

[NTS] drove two 24 inch concrete octagonal piles on October 7, 2009 that did not

have a compressive strength of 8,000 psi. The two concrete piles (B-55 and B-60)

_.. were subsequently driven on October 7", B-55 at C-5 and B-60 at E-6.

The casting yard cannot hold all of the piles we cast and thus we store piles on three

barges where the piles aged past the 16 days and 8,000 psi required for driving. We

tried a new concrete mix on the casting days of August 11" and August 14” and we

found that the concrete mix did not perform as we had anticipated and we ceased

use of that concrete mix. The piles cast on both days did not meet strength at 28

days and we subsequently took these piles off of the ready to drive list. Our error

was that we did not immediately return those piles to the beach or segregate the

piles onto the bottom layers of a barge as a reject layer. What further complicated

the matter is that the two piles driven with low breaks were replacement piles and

had low casting numbers, B-55 and B-60, compared to the other 14 piles with

casting numbers ranging from B-157 to B-173. We are currently reviewing the

procedures we have in place for numbering replacement piles and for releasing

concrete piles that are over 8,000 psi and 16 days and we will advise you when we

have finished our review.

The concrete piles driven at C-5 and E-6 have been accepted by KPFF....

Id. NTS enclosed a letter from KPFF stating that NTS could leave these piles in place as support

for Pier B based on its calculations. PX 61.11-.43; Tr. 726-28; Tr. 2543-45.

In its November 17, 2009 response, NAVFAC’s consultant, BergerABAM, began

questioning the k-factor of the understrength piles. JX 23. “K-factor” -- “k” representing

slenderness -- is a term used in calculating the capacity of piles or “any particular element” that is

in compression. Tr. 705; Tr. 2076-77. BergerABAM observed that KPFF had used a k-factor of

0.5 for its Pier B piles, which BergerABAM questioned. Tr. 1977. Mr. Branlund, a senior project

manager at BergerABAM, brought Dr. Schneider'* into the Project to evaluate whether the

M4 Dr. Schneider is a senior project manager at BergerABAM, and he has a master’s degree

and Ph.D. in civil engineering from the University of Washington. Tr. 2068-72. Dr. Schneider is

licensed in Washington and California in structural engineering. Tr. 2071.

28

understrength piles created a stability issue. Tr. 2075. In conducting his evaluation, Dr. Schneider

did not review the RFP materials, the Project specifications, or NTS’ design submittals. Tr. 2120-

21. Instead, he relied on Mr. Branlund to provide him with an understanding of the Project and

the necessary design calculations. Tr. 2121.

NAVFAC advised NTS that BergerABAM’s review of KPFF’s calculations raised further

concerns about the Pier B pile design, in particular, the values used for the effective length factor

in the design, and requested that NTS provide a written response. JX 23.1. On November 24,

2009, NTS responded and attached a letter and report from KPFF. PX 62.1. NTS explained that

it had “reviewed the underwater video inspection records for piles C-5 and E-6 and . . . both piles

[were] acceptable.” PX 62.1. KPFF stated that “the slenderness (K) factor we have used in our

analysis is correct for this type of structure...” PX 62.2. KPFF further stated:

The value of the slenderness factor “K” normally is obtained from commonly

available tables like the one enclosed or by using the more accurate Moreland

Alignment charts. These allow a graphical determination of K for a pile of constant

cross section by summation of rigidity of all members rigidly connected to that joint

and lying in the plane in which buckling of the pile is being considered, in a

multibay frame system such as the Pier B structure. By using the charts, we have

determined K to be equal to 0.50 to 0.505. Knowing the difference to be negligible,

we chose to use K=0.5 for a fix-fix condition.

Id.

Although KPFF asserted that the k-factor of 0.5 was correct in the context of the entire Pier

B structure, BergerABAM remained concerned because the Uniform Facility Criteria (“UFC”) --

which was included in the Basis of Design -- stated that the k-factor should be 0.7. Tr. 1979-81.

In BergerABAM’s view, an incorrect k-factor could indicate that the structure itself would be

unstable and could collapse or “show severe structural distress,” which in turn would raise a global

stability issue. Tr. 1976-77. “Global stability for a structure is its ability to maintain its

configuration and shape under the imposed loads, vertical and/or lateral, that it’s designed for

without... becoming unstable.” Tr. 1976.

According to American Concrete Institute (“ACT”) Code 318-05, Section 10.13.6, there are

three methods -- referenced here as A, B, and C -- for determining the global stability of a structure.

JX 22.4. The engineer performing the work, in this case, KPFF, chooses which of the three

methods to utilize. Tr. 738-39. Method A uses a computer, analytical model to precisely depict

the entire structure. Tr. 739. Methods B and C are more conservative approximations that can be

done on a spreadsheet without a computer model. Id. BergerABAM/’s senior project manager,

Dr. Schneider, explained that each method is “trying to achieve the same basic goal, which is to

look at the slenderness of the system. The reason they are broken up as to A, B, and C depends

on how you magnify the moments.” Tr. 2082.

On December 1, 2009, BergerABAM provided NAVFAC a response to KPFF’s letter,

stating:

.... Global stability of the pier in the longitudinal direction relies on the piles to

resist lateral deformations by frame behavior. However, as the buckling load is

approached, these columns lose stiffness and, hence, their ability to prohibit

sidesway. Because pile stability has been considered with an effective length factor

29

of K=0.5 only, and the effective length factor for sidesway uninhibited must be

larger than 1.0, there is a concern that global stability of Pier B has not been

considered properly.

Ultimately, we feel, Pier B as designed, is a sway frame in the longitudinal

direction, and as such, should meet appropriate design requirements for slenderness

and stability. This is not evident in the design calculations submitted. KPFF should

be clearer about design procedures being used, requirements being satisfied, and be

more explicit about their final design process of the piles.

PX 63.3-.5.

On December 15, 2009, KPFF replied via NTS stating that it also “performed the

calculations using Items B and C of the ACI provision” and “all three methods resulted in a value

less than 2.5.” PX 64.4. KPFF reiterated that the original design was correct and met the

requirements of the RFP as previously submitted and approved. PX 64.6.

On January 12, 2010, NAVFAC sent a January 7, 2010 letter from BergerABAM identified

as the “official Government response.” PX 65.1. In its letter, BergerABAM disagreed with

KPFF’s calculations supporting the finding that the design was correct. PX 65.2-.7. BergerABAM

recognized that “ACI 318-05 Section 10.13.6 permits the use of either of three methods [A, B, or

C] for gravity load stability assessment” but asserted that method C was the “most appropriate

consideration” and that “only alternative (c) checks the margin against the limit state of gravity

load buckling” which “is a necessary step in the design of any structural system.” PX 65.3.

BergerABAM further suggested that the inputs used in KPFF’s calculations, including the pile

lengths and “creep factor,” how the material behaves under sustained, long-term loading, were

incorrect and recommended that KPFF reevaluate and “revise” its calculations. PX 65.4, .7; Tr.

2112.

In NTS’ January 18, 2010 response, KPFF refuted each of BergerABAM’s critiques and

provided additional calculations and analysis in response to BergerABAM’s requests, even though

it deemed this unnecessary to demonstrate compliance with RFP or code provisions. PX 66.9.

KPFF concluded:

We have now responded to two complete rounds of review comments from

BergerABAM, and have clearly and amply demonstrated with multiple approaches

in both rounds that KPFF’s structural design of Pier B is in compliance with the

requirements of the RFP and the reference codes and standards.

The net result of these additional investigations and review has been no change to

KPFF’s original, approved structural design of Pier B.

Id.

After a series of correspondence between KPFF and BergerABAM in late January 2010,

NAVFAC accepted the two understrength piles on February 15, 2010, but noted that the pile

connection type for these piles still needed to be addressed. PX 153; see PX 67; PX 68.

30

On March 8, 2010, NAVFAC notified NTS that, “[b]ased on the attached BergerABAM

correspondence dated 12 February 2010, the Navy has concerns that the final approved design

. may not be in conformance with the RFP” and “other concerns that are surfacing when

reviewing .. . the approved design.” JX 24.1. NAVFAC directed NTS to address these concerns

by submitting “archived analytical models” and “detailed example calculations” justifying NTS’

design. Id.

Upon receiving NAVFAC’s March 8, 2010 letter, NTS was very concerned -- Mr.

Elgenson viewed the letter as a “bombshell” because “the design had already been approved” and

“[NTS] basically had to stop work.” Tr. 902; Tr. 197 (Mr. Fedrick describing it as a “very, very

scary moment’); Tr. 1529 (Mr. Fox stating NTS “needed to stop the critical path activities until

we could get this issue resolved”). After receiving NAVFAC’s March 8 letter, NTS stopped

“critical construction activities” on Pier B, and stopped placing concrete. Tr. 2555; Tr. 198.

NTS informed the Government at morning project meetings that after March 8, 2010, NTS

was not pouring concrete or performing critical construction activities and was stopping all critical

path activities until the global stability issue was resolved. Tr. 1529-30. Between March 8 and

May 7, 2010, NTS performed some non-critical work in connection with Pier B bent construction,

including setting pile collars and temporary deck forms at a few select locations, but stopped most

critical construction. JX 60.6; Tr. 1318; Tr. 1618-19; see also Tr. 2507-08, 2555; Tr. 2621.

KPFF Hires Gerwick to Conduct An Independent Review

In light of this ongoing dispute regarding global stability, KPFF retained Ben C. Gerwick,

Inc. (“Gerwick”) on February 22, 2010, to perform a third-party independent review of KPFF’s

global stability calculations of ACI 318-05, Section 10.13.6 (a). Tr. 747-48, 794; see also PX

173.1. Henrik Dahl, a Senior Project Manager, prepared the Gerwick Report, which discussed

information reviewed, including KPFF’s design calculations and drawings, pertinent parts of the

RFP, as well as the GEBS and site bathymetry drawings. Tr. 1060, 1073-74; JX 25.5, .8. Gerwick

prepared an independent model to compare with KPFF’s assumptions. Tr. 1089-90. To ensure

the production of an independent model, Gerwick’s modeler was denied access to KPFF’s model.

Tr. 1090-91.

Gerwick’s independent review modeled a different approach to verify ACI 318-05, Section

10.13.6 (a) compliance, and the results of Gerwick’s model were within 10 percent of KPFF’s

model, which, in Mr. Dahl’s view, showed that KPFF’s model was done correctly. Tr. 1091; JX

25.8. The Gerwick Report concluded that “KPFF’s method of evaluating the strength and stability

of Bremerton Pier B as a whole under factored gravity loads” and was in compliance with ACI

318.05, Section 10.13.6 (a) “with a considerable margin,” i.e., “in the range of 30 percent.” JX

25.8; Tr. 1091-92. In Gerwick’s view, KPFF’s model for global stability was more conservative

than ACI 318-05, Section 10.13.6 (a) required, and from an engineering standpoint, provided a

greater safety margin in the design. Tr. 1092.

On April 2, 2010, in response to the Gerwick Report, NAVFAC Design Manager Matt

Butler sent a series of emails to NTS. See JX 14. Mr. Butler stated that “the most significant part

of the structural pier substructures is going to have to be completely re-designed and resubmitted

for Navy review.” JX 14.1. Because he did not “want to spend the next two or three months

reverse engineering what is behind the numbers [NTS] or a third or fourth party say are just fine,”

31

he requested NTS “open [the design] for examination” and provide the Navy with the “same

program and to the same input data” so the Navy could make its own evaluation. Id.°

Ultimately, in its May 24, 2010 review comments, BergerABAM agreed that NTS’ Delta

12 redesign -- which addressed the skew issue -- resolved the Pier B stability issue. JX 16.7.

Specifically, in reviewing the redesign, BergerABAM commented: “As a result Pier B, with the

addition of 28 new battered piles satisfies the stability requirements of ACI318-05, Section

10.13.6, since technically it is sufficient to satisfy only Section 10.13.6a.” Id. KPFF interpreted

these statements as a concession that ACI 318-05, Section 10.13.6 (a) was satisfied with the

addition of the 28 additional piles necessitated by the Delta 12 redesign. Tr. 760-61. None of the

prior discussions between KPFF, BergerABAM, and the Government had included adding 28 piles

to satisfy global stability requirements. Tr. 761.

The Global Stability Design Issue Led to Schedule Slippage.

On February 5, 2010, NTS provided NAVFAC a CPM Schedule Update, stating that, as of

the end of January 2010, the Project was only six days ahead of the Contract completion date --

that the Project had six days of “float” in the schedule. JX 62.105-50; Tr. 1252. On February 11,

2010, Janet Olson, the contracting officer (“CO”), sent a letter to NTS regarding the “significant

decline in the available float in the schedule.” JX 12.1. CO Olson stated in part:

107 days of float have been lost in the last 4 months, which causes the Government

concern for the overall completion of the project.

While I recognize that you are actively working on maintaining the project schedule

to complete Pier B and associated activities by the contract completion date, I feel

it necessary at this time to inform you that should the float go negative you will be

required to submit a recovery plan demonstrating how you will improve progress

without additional cost to the Government in accordance with Federal Acquisition

Regulation 52.236-15, Schedules for Construction Contracts.

Id.

On March 5, 2010, NTS submitted a “Recovery Schedule” to NAVFAC. JX 62.151-.282.

However, three days later, on March 8, 2010, after receiving NAVFAC’s letter expressing concern

with its design, NTS stopped most critical construction until May 27, 2010. Tr. 197-99, 254-55;

Tr. 1618-19; Tr. 1318. This work stoppage resulted in between 62 to 64 working days of further

delay. Tr. 2621.

NTS’ Acceleration

In early June 2010, NTS began to accelerate performance. This included making

arrangements to move a crawler crane onto a barge to perform Pier B pile cap work and purchasing

additional false work. JX 62.435. NTS’ crews “worked extra hours every week for an extended

period of time” to expedite the work and “had to bring in extra equipment” to support the larger

crew size. Tr. 904; see PX 81.

1s This included providing the archived analytical models that NAVFAC had requested on

March 8, 2010. JX 14.2; Tr. 1880-81. Sometime after April 2, 2010, KPFF provided NAVFAC

with archived analytical models. Tr. 792-93; Tr. 1986.

32

On July 21, 2010, NAVFAC sent a letter to NTS informing it that “there is... again a

significant decline in the float available in the schedule.” JX 15. According to CO Olson, “100

days of float have been lost in the last 4 months, which causes the Government significant concern

for the overall completion of the project.” Id. CO Olson reminded NTS that “should the float go

negative you will be required to submit a recovery plan... .” Id.

On October 4, 2010, NTS delivered a work plan to the Government for the Pier B

crossbeam piles. Tr. 1511. As of that date, NTS had not started installing the additional 28 piles

and crossbeams -- which were intended to address excessive pile skewing. Tr. 756; JX 26.7. On

November 12, 2010, CO Olson sent NTS a letter expressing concern that “float is once again

declining” and the “activity durations and completion dates of many activities appear to be

unrealistic.” JX 17. On December 2, 2010, Dan Fox, NTS’ project manager, '° responded, stating

that NTS was “evaluating options for re-sequencing work on Pier B” to accelerate work. JX 18.1.

He also noted that NTS had mitigated Pier B schedule impacts by working overtime which allowed

NTS to maintain the project schedule. Id. On December 2, 2010, CO Olson responded

acknowledging that NTS had hired nine additional employees and planned to increase crews to

accomplish the contract work. JX 27.1.

On January 7, 2012, the Government commenced an inspection, and on January 26, 2012,

confirmed that the “work has been inspected and found acceptable with final inspection punch list

items.” JX 28.

NTS’ REAs

REA 5

On November 18, 2010, NTS submitted REA 5 seeking $1,079,189.55 for costs incurred

as a result of differing site conditions encountered at the Mole Quaywall, including costs for cutting

and handling and disposal of long piles, grouting and coring dowel holes, exposed pile strands and

disposal of debris, false-work, reinforcing steel modifications, and additional inspection. PX 28.4-

.8; PX 176; see also Tr. 1484.

On June 19, 2013, NAVFAC issued Contract Modification Number A00057 providing

NTS an equitable adjustment in the amount of $675,000 in settlement of REA 5. JX 2.3791. The

reason code indicated in Modification Number A00057 was the differing site condition clause,

although NAVFAC did not believe there were actually differing site conditions. JX 2.3790; Tr.

1634-35. The CO noted in a June 4, 2013 Non-Competitive Pre-Negotiation Business Clearance

Memorandum that “[t]he Government does not see this as being a differing site condition nor an

issue of defective specifications as is implied in the contractor’s Serial Letter 233.” DX 89.3.

NAVFAC’s decision finding merit in part of REA 5, states:

Due to the Government providing the pile tip elevations, the Government is

responsible for the costs associated with additional pile cutoffs, grouting, and

disposal to include all associated labor, materials, equipment, supervision and

16 In late February 2010, NAVFAC removed Mr. Elgenson as NTS’ project manager. Tr.

914 (explaining that NAVFAC issued a letter that “referenced a contract specification where they

could have any personnel removed”); Tr. 219-20; Tr. 1503 (“My understanding is the government,

as part of the contract, had the ability, if they chose, to change out management on our .. . side

... and they did.”). In early March 2010, Dan Fox became the new Project Manager. Tr. 1504.

33

associated markups. With the revised request from the Contractor the Government

does now see some merit with some alignment issues that are due to the over length

piles, which is addressed in the technical analysis.

DX 89.3 (emphasis added).

REA 14

On April 1, 2011, NTS submitted REA 14 for $1,881,900 for costs incurred to mitigate the

64-work-day stoppage on Pier B -- “the Global Stability Delay.” PX 73. On February 5, 2013,

CO Olson denied REA 14. PX 93.1. On June 26, 2014, NTS sent a certified claim requesting a

contracting officer’s final decision for REA 14. See JX 21. On September 4, 2014, Eileen

Mitchell, Chief of the NAVFAC Contracting Office, issued a final decision denying NTS’ REA

14 claim. Id.

REA 9

On October 11, 2011, NTS submitted REA 9 seeking $10,498,284.85 for costs incurred as

aresult of differing site conditions encountered at Pier B, including engineering and redesign work,

cutting and handling of long piles, additional time for disposal of long piles, grouting dowel holes,

coring dowel holes, exposed pile strands and disposal of debris, false-work, reinforcing steel

modifications, precast concrete plank modifications, and additional inspection. PX 33.

On February 5, 2013, CO Olson denied REA 9. PX 34.17. On October 31, 2013, NTS

submitted a certified claim requesting a contracting officer’s final decision for REA 9. See PX 36.

On August 12, 2015, CO Mitchell issued her final decision denying REA 9. JX 20.

Discussion

Jurisdiction and Legal Standard

Plaintiff brings this action under the Contract Disputes Act (“CDA”), 41 U.S.C. §

7104(b)(1), appealing the contracting officer’s final decisions on its claims. The Tucker Act, 28

U.S.C. § 1491(a)(2), confers jurisdiction on the Court of Federal Claims “to render judgment upon

any claim by or against, or dispute with, a contractor arising under section 7104(b)(1) of title 41

[of the Contract Disputes Act]... on which a decision of the contracting officer has been issued

under section 6 of that Act.” In accordance with the CDA, the Court reviews the contracting

officer’s decision de novo. 41 U.S.C. § 7104(b)(4).

Contract interpretation is reviewed as a matter of law, and the Court gives no deference to

the interpretation adopted by the agency. Lockheed Martin IR Imaging Sys., Inc. v. West, 108

F.3d 319, 322 (Fed. Cir. 1997). Where the United States is a party to the contract, the Court of

Federal Claims applies general rules of contract interpretation, giving the terms of the contract

“their customary and accepted meaning.” Scott Timber Co. v. United States, 333 F.3d 1358, 1366

(Fed. Cir. 2003) (citing Alaska Lumber & Pulp v. Madigan, 2 F.3d 389, 392 (Fed. Cir. 1993)).

NTS’ Differing Site Conditions Claims

NTS’ subcontractor, ACC, experienced pile driving difficulties at Pier B from the start of

the Project in August 2009. DX 20.2. NTS originally advised its subcontractor, ACC, that these

difficulties were to be expected in this location and soil type and denied ACC’s differing site

condition claim. However, NTS later changed its position and claimed that ACC’s inability to

34

drive 136 piles to their designed tip elevations -- resulting in excessive cutoffs and lack of

alignment -- was caused by “unknown subsurface conditions,” and “a Differing Site Condition at

the Pier B structure.” PX 33; PX 71; JX 13; Tr. 756. NTS alleges that it encountered a Type I or

Type II differing site condition at Pier B. For its Type I Claim, NTS argues that it encountered

unspecified conditions and obstructions that were not disclosed in the contract documents. For

Type I, NTS alleges that it encountered an “unknown physical condition,” causing “shallow and

erratic pile refusals.” Pl.’s Post-Trial Br. at 142-43.

In addition to the piles failing to reach expected elevations, NTS claims that the differing

conditions allegedly “caused piles to move during pile-driving and fall outside the specified

tolerances.” Pl.’s Post-Trial Br. at 130. When piles are “out of tolerance” or “out of alignment,”

they can reduce the load capacity of the entire pier, and because the piles did not go where they

were supposed to, they could not “conform to [NTS’] design that was approved.” Tr. 757; Tr.

214.

Alternatively, NTS alleges that the Government furnished defective specifications “as to

the site conditions that would be encountered and the method by which piles at Pier B should be

designed and installed.” Compl. (16-925C) 4 103.

NTS Failed to Demonstrate a Type I Differing Site Condition.

Type I differing site conditions are “subsurface or latent physical conditions at the site

which differ materially from those indicated in th[e] contract.” 48 C.F.R. § 52.236-2(a)(1);

Meridian Eng’g Co. v. United States, 885 F.3d 1351, 1356 (Fed. Cir. 2018). Plaintiff alleges it

encountered undisclosed obstructions, likely boulders and cobbles, and variable elevations at

which piles reached refusal in the beach deposits -- resulting in excessive pile cutoff and a lack of

alignment. Pl.’s Supp. Reply at 4; Pl.’s Post-Trial Br. at 123-24. Plaintiff did encounter difficult

pile driving. During performance, 104 of the 456 Pier B piles reached refusal more than 12 feet

above NTS’ design depths, 186 pile tops “were more than 6 inches out of their horizontal position,”

and 35 pile tops “were more than 18 inches in misalignment.” PX 132.4. However, it was NTS

who determined these design depths, not the Government, and Plaintiff has not established that its

pile driving difficulties were due to differing site conditions. '”

In order to recover for a Type I differing site condition, the contractor must prove by a

preponderance of the evidence that:

[1] the conditions indicated in the contract differ materially from those actually

encountered during performance; [2] the conditions actually encountered were

reasonably unforeseeable based on all information available to the contractor at the

time of bidding; [3] the contractor reasonably relied upon its interpretation of the

M NTS suggests that because the Government granted an equitable adjustment of $675,000

for differing site conditions at the adjacent Mole Quaywall under Contract Modification A00057,

NTS is entitled to an equitable adjustment for pile driving difficulties at Pier B. Pl.’s Post-Trial

Br. at 131; JX 2.3791. However, the Government did not deem the situation at the Mole Quaywall

to be a differing site condition. DX 89.3. There is a significant difference in what transpired at

the Mole -- the Government provided the design and pile tip elevations for the Mole Quaywall,

while NTS designed and chose the pile lengths and arrangement for Pier B. JX 2.574, .1356,

.1358, .1360.

35

contract and contract-related documents; and [4] the contractor was damaged as a

result of the material variation between expected and encountered conditions.

Comtrol, Inc. v. United States, 294 F.3d 1357, 1362 (Fed. Cir. 2002) (citing H.B. Mac, Inc. v.

United States, 153 F.3d 1338, 1345 (Fed. Cir. 1998)); see also Stuyvesant Dredging Co. v. United

States, 834 F.2d 1576, 1581 (Fed. Cir. 1987).

To recover for a Type I differing site condition, a contractor must first prove, as a threshold

matter, that the contract contained some identification of the conditions to be encountered at the

site. Renda Marine, Inc. v. United States, 509 F.3d 1372, 1376 (Fed. Cir. 2007) (citing H.B. Mac,

153 F.3d at 1345 and P.J. Maffei Bldg. Wrecking Corp. v. United States, 732 F.2d 913, 916 (Fed.

Cir. 1984)). Such indications “‘need not be explicit or specific’ so long as they provide sufficient

grounds by which the contractor can justify his ‘expectation of latent conditions materially

different from those encountered.’” Neal & Co. v. United States, 36 Fed. Cl. 600, 617 (1996)

(citing P.J. Maffei, 732 F.2d at 916).

“When determining whether site conditions were reasonably foreseeable to the contractor,

both the contract and any other information available to the contractor are considered.” CCI, Inc.

v. McHugh, 608 F. App’x 937, 940 (Fed. Cir. 2015) (citing Int’l Tech. Corp. v. Winter, 523 F.3d

1341, 1349 (Fed. Cir. 2008)). Contract documents “include not only the bidding documents

(Invitation for Bids, drawing specifications and other documents physically furnished to bidders)

but documents and materials mentioned in the bidding documents as well.” McCormick Const.

Co. v. United States, 18 Cl. Ct. 259, 263 (1989); W.M. Schlosser, Inc. v. United States, 50 Fed.

Cl. 147, 153 n.8 (2001).

NTS claims that the contract documents did not indicate it would reach refusal in the beach

layer or encounter refusal at “unpredictably” varying elevations, and instead indicated that pile

driving conditions would be predictable and manageable. Pl.’s Post-Trial Br. at 124, 127; Pl.’s

Resp. at 2 (‘NTS came away from its review of [documents and information furnished by the

Government before Contract award] with the reasonable conclusion that, although pile driving

conditions would be hard, they would still be predictable and manageable.”); see also Tr. 1130-31

(Mr. Boirum opining that “it was anticipated that, for instance, all of the piles would be able to

penetrate through the beach deposits and terminate in the glacially consolidated materials below

that.”); Tr. 880-81 (Mr. Elgenson stating that the GEBS “told us that we should be able to drive

the piles... within 5 foot or drive to 5 foot into the glacial till”).

The GEBS Did Not Represent that Piles Could Be Driven Into Glacial Soils.

Plaintiff argues that the GEBS indicated that piles could and should be driven five feet into

the glacial soils. In so arguing, NTS misinterprets the GEBS. The GEBS provision on which NTS

relies states:

We understand that 24-inch prestressed, solid, octagonal concrete piles are

preferred for much of the replacement of Pier B.... [W]e recommend that the piles

be driven to and tipped a minimum of 5 feet info the glacial soils or practical pile

refusal. Assuming an approximate, practical pile refusal of 5 feet, piles should be

driven to a minimum of elevation 37 and 29 feet (PSNS Datum), for Stations 0+00

to 8+25 and 10+00, respectively, or 5 feet of embedment into the glacial soils as

shown on Figure 3... . Note, practical pile refusal is a function of the hammer

36

selected by the Contractor, and therefore must be estimated during construction

with observation of the actual equipment and pile driving behavior.

JX 1.2371 (emphasis added). Hart Crowser’s recommendation was phrased in the alternative --

that the contractor drive piles “5 feet into the glacial soils or practical pile refusal.” JX 2.2619

(emphasis added). The use of the connector “or” indicates an alternative, i.e., either five feet into

the glacial soils or some other unspecified depth that equates to practical pile refusal. The GEBS

indicated that practical pile refusal could be different than “five feet into the glacial soils” and

could instead be an undetermined depth until practical pile refusal was achieved during

construction upon the the driving of a pile. Id.

Garry Horvitz, the Vice President and Senior Principal Geotechnical Engineer at Hart

Crowser, who oversaw production of the GEBS, testified that the above paragraph in the GEBS

did not provide determinations of practical pile refusal. Mr. Horvitz further explained that adding

“or practical pile refusal” meant that although Hart Crowser anticipated the contractor would

achieve capacity in the glacial soils, it could achieve capacity in the beach layer and “we’re okay

with that.” Tr. 1767. NTS’ geotechnical expert, Ralph Boirum, acknowledged that “the language

‘until practical pile refusal’ softens the prior language ‘5 feet into the glacial till.’” Tr. 1185.

Contrary to Plaintiff's arguments that the GEBS repeatedly indicated “that practical pile

refusal would occur in or at the glacial soils,” Hart Crowser did not define in the GEBS what

practical pile refusal would be for the Pier B Project. See Pl.’s Resp. at 63; Pl.’s Post-Trial Br. J

12. Rather, Hart Crowser put forth an assumption, and based on that assumption, spelled out

minimum elevations stating “[a]ssuming an approximate, practical pile refusal of 5 feet,” “piles

should be driven to a minimum of elevation 37 and 29 feet.” JX 2.2619. Hart Crowser made clear

that the contractor would need to make its own determination regarding practical pile refusal

during construction, expressly stating “practical pile refusal is a function of the hammer selected

by the Contractor, and therefore must be estimated during construction.” Id.

In sum, as the GEBS stated, the depth at which piles would meet practical pile refusal was

not definitized.

The Contract Documents Indicated Uncertain Subsurface Conditions.

The GEBS expressly advised potential contractors that it only provided limited information

about the subsurface conditions via data from borings and indicated that there was uncertainty

regarding subsurface conditions in areas between borings. While the borings allowed Hart

Crowser to determine the subsurface conditions at the boring locations themselves, borings are

only 3.5 inches in diameter and gave insights into a relatively small area. Tr. 548.

The following diagrams in the GEBS showed generalized north-to-south and west-to-east

cross sections with question marks indicating uncertain and unknown subsurface conditions in an

array of locations between borings:

37

A A

North H05-104 Top ot Eating Per B HCO6-105 South

440 ‘Quaywall 729 4 eee 140

(ew) (aw) SW06-B-6

Fis J

120 | {Lose to dense, 120

Bs ay ORATEL MLW (109.4)

—?7 lr

100 7 — pit? Existing 100

= — a Mudline _

Z Sandy SILT la ? i

(Fill tur Le fe —e

Medium stiff, sandy | L 2 ? 80

g = ie Loose to dense SAND LS 2

2 = ae \ CT to gravelly SAND (Fill) 40 “™, 2: 7 zg

3 0 fi SANS 4 ne It ee eee o §

c wor fa — 9» — 7? Fs — 7? lo clayey SILT | o £

& sos + 53 + 6s i bo to a §

a 7s 7 o_o sillyCLAY Fa q

3 4 % Foor? [sa i 2 (Estuarine) | * 40 §

rs 50° Dense to very dense ur Very dense [oe qf Pt — 9 a

| a SAND to gravelly Loe ae and GRAVEL es a ee :

; SAND (Beach ance or r ]

a * Rana Giacial) ace Fluvial Deposit) [ toe ee — i 20 &

2 Lt te — 2

+ te —

o Saat —_ 0

f sae

Lice

-20 -20

Very loose, silty SAND

B-B' D-DD

40 | 40

HC06-105 Exploration Number

(4.55) (Offset Distance and Direction)

Exploration Location

z ‘Water Level At Time of Drilling

Note: The stratum li based interpolation betwee! i " i Horizontal Scale in Feet aa

esiereions ieee air Ghanraeiisnef sien 8 isos ia Coed Foetiatteen it 0 150 300 a

conditions based on currently available data. ar er HARTCROWSER

—?——|— _ Approximate Soil/Geologic Contact Vertical Scale in Feet 17339-00 10/07

Vertical Exaggeration x 5 Figure 3

F Existing Drydack & Mole F"

West East

SW06-8-5 HC06-104 SW54-8-4

1407 Exésting Pier 8 Existing Desaman 7140

“\ Anchor and Tierod

120 /\ N 4 120

MLLW (109.4) ¥ 1 a

5 oF Existing Moe | Mes €

400+ um dense io wary 4100

5 ; mewn cea sy 3

eS N LT es sity, gravelly SAND 8

4 5 Paa (Fil

@ sof iT ha bs orf |% @

N Liz aa

3 ral b= is 3

Lag Las

t 60}: = | fas P36 4 60 -

La Ss a

5 ea — ~ + 7a a wi “ 5

2 404 t-—4—2-—— —2--— -— — ese aa Very lose to medium Estimated 4 49 =

ace Dense, slightly silty, dense, trace to silly SAND Drydock 6 2

Ww Medium de Poe Gravelly SAND to and gravelly SAND (Fill) Dredge Line a

mse fo very dense, are sandy GRAVEL

20/ slightly silly to silty, gravelly Peas" (Sand Blanket) J a9

SAND (Beach Deposits) p sas" Very dense SAND and GRAVEL

Ca A--A' (Glacial Deposits)

ol | Jy

HC06-1 Exploration Number

Exploration Location

at Water Level At Time of Drilling

Note: Contacts between soil units are ‘ ‘ .

besa interpolati a Standard Penetration Resistance in

aed upon interpolation Blows per Foot 0 40 80

between borings and represent Aporosd

pt mate Soil/Gaologic Contact 1

our interpretation of subsurface “ PP ng Scale in Feet

conditions based on currently

available data.

JX 2.2670.

38

Witnesses from both parties testified that the question marks between boring locations in

these diagrams in the GEBS meant that the subsurface conditions between the borings were

unknown. Tr. 564 (Mr. Sarieddine stating “it’s typical in our profession to [insert question marks]

because we know the conditions at the boring locations. We didn’t know in between.”); see also

Tr. 333; Tr. 788; Tr. 1751; Tr. 2333.

Ronald Fedrick, NTS’ former chairman and CEO and Rule 30(b)(6) representative,

acknowledged that NTS had to make assumptions about how deep the pile elevations would be

and how much cutoff it would have, because “there’s nothing more variable than geotechnical

conditions.” Tr. 108; see also Tr. 1765. Mr. Fedrick testified:

A. So what we did is add 5 feet in length to be able to allow for the variability

of the soil conditions there.

It’s a lot -- well, when we have to do a buildup is when the pile goes to a

depth, and all of a sudden now it can’t reach the top of the structure, so we have to

build on top ofa pile. And, generally speaking, it’s more expensive to do that than

to cut off a pile, assumedly it’s not too big of a piece of cutoff.

Q. [By Counsel for Plaintiff] And for this project, did -- did you assume that

you would have to cut off some of the piles?

A. We assumed we’d have to cut off, I think, half of the piles on the project.

Q. Half of the -- not half of the pile lengths, but half of the total number of

piles?

A. Half the total number of piles.

Q. Okay. And how much on each pile did you assume that you would have to

cut off?

A. You know, again, we’re assuming 2- or 3- or 5-foot cutoff.

Q. So, at most, 5 feet?

A. At most, 5 feet.

Tr. 108-09.

In explaining why NTS chose 5 feet, Mr. Fedrick testified:

A. And what [JX 2.2665 and JX 2.2670] are indicating is [the drafters of the

GEBS] really don’t know where that bottom is at. And they’ve done a boring here,

and they know that location; done a boring here, and they know when it’s at that

location. And, you know, they’ve done a boring here, and they know what that

location is.

So in between those borings, we really don’t know. We know what it’s at

there. So the logical assumption that we would make at bid time is we’ re drawing,

like I said before, straight lines between those, but then we’re adding 5 feet to them

because, you know, we don’t want to be 5 feet short. It’s much more economical

for us to add 5 feet to a pile and cut off 5 feet, let’s say, than it is for us to have to

add 5 feet after it’s been installed and it comes up 5 feet shor -- it comes, you know

39

THE WITNESS: -- below that piece. And the --

THE COURT: ... Why -- why 5 instead of --

THE WITNESS: Why 5 feet?

THE COURT: -- [instead of] 3 or 10 or 20?

THE WITNESS: So what -- what we envision there is that the worst case we’d ever

see would be something like 15 feet, you know, of variability, and maybe -- and

with suspicions, more like 3 to 5 feet. Because they do have a lot of information in

between here. And just like is shown in here, this is kind of what we’d expect. So

what we do is we just grab -- and I'll say it’s -- it’s a number and it’s 5 feet. And

that number is based on, I'll say, the experience of building numerous piers and

wharfs for United States Navy.

Tr. 333-35.

The contract documents expressly informed the contractor that it should conduct additional

explorations:

e Within “The Need for Additional Explorations” section of the GEBS, Hart Crowser

recommended that:

The Contractor should review the existing soil explorations and determine if they

are adequate to complete the design of the proposed project. If the quantity or

location of the soil explorations is insufficient, the Contractor should include

additional soil explorations in their scope of work.

To date we have only been able to advance a limited number of borings along the

mole quaywall due to logistical constraints. It would be beneficial to conduct

additional borings along the length of the mole quaywall once the site is open for

construction

JX 1.2367-68.

e Within the “Subsurface Data” subsection of the “Contract Drawings” section, the RFP

warned that the GEBS “is included for the Contractor’s information only and is not

guaranteed to represent fully all subsurface conditions” and that “[d]epending on the

proposed design by the Contractor, the Contractor shall perform, at its expense, such

additional subsurface exploration, investigation, testing, and analysis as its Designer of

Record deems necessary for the final design and construction of the foundation systems.”

JX 1.248.

e Within the “Engineering Systems Requirements” section, the RFP stated that “[t]he

Contractor shall perform a detailed and complete geotechnical engineering investigation,

including additional borings if needed, for the final project design and construction.” JX

1.490.

The Contract Documents Described an Indicator Pile Program that Contractors Were to

Use in Formultating their Design.

40

The contract required contractors to conduct an Indicator Pile Program post award to assess

pile capacities, drivability through “dense zones of soil” and “possible unforeseen circumstances.”

JX 2.2639. The contract documents described the Indicator Pile Program, stating:

Based on past experiences within the PSNS and other Navy facilities, indicator piles

with dynamic pile testing provide extremely useful information to supplement soil

explorations and analysis for evaluating pile capacity and drivability. The purpose

of the indicator pile program is to verify the location of the top of the glacial soil

bearing layer(s) to aid in selection of pile tip elevations and lengths, and to verify

design shaft friction. The benefit of an indicator program with dynamic pile testing

over soil explorations is that the indicator piles may be used to assess pile capacities

and safety factors and drivability through dense zones of soil, and to identify

possible unforeseen circumstances.

Id. (emphasis added).

NTS understood the Indicator Pile Program described in the contract and recognized in

its technical proposal that it was responsible for incorporating its indicator pile results into its

design:

During design development the indicator piles will be installed and dynamically

tested. Due to the critical timing for incorporating the indicator pile results into the

design we plan to utilize non-production piles (sacrificial) for the concrete indicator

piles. We anticipate completion of the test pile program in 46 calendar days.

Results will be shared with the owner for review prior to incorporation into the

design and used to confirm the load capacity of the piles.

JX 4.197. Further, as Mr. Fedrick testified, NTS’ proposal stated that its tip elevations and pile

lengths would be based on the indicator pile program, not the bidding documents. In its Basis of

Design, NTS expressly anticipated potential interferences from preexisting piles from the Old

Pier B and planned to modify the structural plan for Pier B “[w]here potential interferences are

identified.” JX 4.195.

Knowing that it would base its design and tip elevations on the results of its indicator pile

program, NTS chose to test only eight piles -- the contractual minimum, even though the GEBS

“strongly recommended a minimum indicator pile program for Pier B consisting of ten indicator

piles.” JX 1.2392. NTS did not test any piles in the footprint of the Old Pier, where NTS would

encounter preexisting piles and densified soil, even though Mr. Fedrick described the preexisting

piles in the footprint of the Old Pier as a “major risk.” Tr. 157; see also Tr. 142; Tr. 494. Instead,

NTS’ subcontractor used LiDAR imaging to conduct a survey of the preexisting piles, but this

survey did not indicate the position of these piles under the mudline.

The Contract Documents Indicated that the Beach Layer Deposits Were Dense or Very

Dense and that Hard Driving Was to be Expected.

The GEBS stated:

Beach Deposits. This material consists of dense to very dense, wet, brown, trace

to slightly silty, slightly gravelly to very gravelly SAND. Some boring logs identify

4]

seams of coarse gravels. This material is competent and would support a portion

of the foundation loads.

JX 2.2615.

Three boring logs described in the GEBS indicated the presence of cobbles, -- i.e.

obstructions which could adversely affect pile driving. PX 132.6; Tr. 918. The 2006 Report, cited

in the GEBS’ Appendix D, “Summary of Previous Geotechnical Explorations and Data,” stated

that “[b]each deposits consisting of dense to very dense sand to gravelly sand were encountered

below the fill and estuarine deposits.” DX 2.11. Mr. Frizzi explained that “dense to very dense”

meant the soil “has a high resistance to penetration.” Tr. 2331; JX 2.2665. The 2006 Report futher

explained that, “[i]n our opinion, any pile installation for the proposed pier would encounter .. .

hard driving conditions in the dense to very dense beach deposits and glacial soils.” DX 2.12.

Contrary to Plaintiff's argument, the contract documents did not indicate a “predictable”

level of drivability and variation within the beach layer. The GEBS made clear that the beach

layer varied from “dense to very dense,” indicating that NTS could encounter differing levels of

density throughout the beach layer causing it to reach refusal at varying elevations. The 2006

Report stated that the beach layer would be “medium dense to dense” once, “dense” four times,

and “dense to very dense” three times, and that the glacial layer would be “dense” twice, “dense

to very dense” once, and “very dense” 19 times. DX 2.10-.30.

NTS’ witness, Mr. Brenner, a former pile driving consultant to NTS and former employee

of ACC, testified that driving would be difficult:

Q. [By Counsel for Plaintiff] Okay. As for your mention of looking at

geotechnical information, based on that examination did you form any

understanding about the subsurface conditions that ACC intended to -- or expected

on the project?

A. It was going to be -- in a scale of 1 to 10 for hard driving or easy, it was

going to be an 8.

Q. Okay. Did you form any expectations about how -- whether that work could

be done?

A. It’s -- it’s always got to be done, yes. I mean, it was -- there were no

expectations of not being able to do it.

Tr. 352-53; see also Tr. 555; Pl.’s Resp. at 64; Tr. 1177.

The Contract Documents Indicated Possible Subsurface Obstructions.

Under the section on “Pile Driveability” in the GEBS, Hart Crowser stated that

“Td]ifficulties during pile driving may be encountered as a result of obstructions that may exist

throughout the areas where piles are anticipated to be specified” and “pile[s] may need to be

moved” if “deep obstructions are encountered.” JX 1.2381.

The contract itself warned of obstructions. Part 4 of the contract, “Performance

Specifications,” stated:

H10 1.2.2.4 - Riprap Material, Pile Stubs, and Other Debris

42

The Contractor and Designer of Record shall be aware that unknown sizes of

riprap material, pile stubs, or other debris may exist at the planned locations of

piles and/or sheet piles at the locations for Pier B, the Mole Quaywall, and

Quaywall 729. It may be necessary for the Contractor to remove and/or spud

through riprap, pile stubs, or other debris, or use a similar method to penetrate

through the obstructive material to enable installation of the prestressed

concrete piles, fender piles, reaction piles, and/or sheet piles without damage

and at no additional cost to the Government. . . .

JX 1.555; JX 2.644.

When discussing prescriptive elements for “soil anchors”!® for Quaywall 729, the

contract documents stated:

A Geotechnical Engineering Baseline Study [is] in Attachment J of Part 6 of this RFP

document. Subsurface soil data logs are shown on the drawings in Attachment B, Part 6

of this RFP and in the Geotechnical Engineering Baseline Study. While the foundation

information is representative of subsurface conditions at the respective locations, local

variations in the characteristics of the subsurface materials may be anticipated. Local

variations which may be encountered include, but are not limited to, variation in the soil

classifications, the presence of cobbles, boulders, existing timber piles or existing timber

elements. Such variations will not be considered as differing materially within the scope

of the Contract Clause “Differing Site Conditions.”

JX 2.1135 (emphasis added). Defendant contends that this clause waives any of NTS’ claims

regarding cobbles and boulders. Def.’s Post-Trial Br. at 121-23. The Court disagrees. This

provision concerned Quaywall 729, not Pier B. This clause, however, does inform the contractor

that cobbles and boulders were reasonably foreseeable in pile driving in the Pier B area. Quaywall

729 was adjacent to and just north of the Pier B structure and thus, local variations under Quaywall

729 would have put NTS on notice that these variations could exist in the subsurface of the

neighboring Pier B.

NTS argues that the GEBS did not make clear disclosures that the beach deposits under

Pier B might contain obstructions. However, the GEBS references the 2006 Report, which

indicated obstructions, including “large cobbles, boulders, and miscellaneous construction

debris” above the beach layer and boulders in the lower advance outwash deposits. DX 2.13.

The 2006 Report stated that “[o]bstructions, such as large cobbles, boulders, or miscellaneous

construction debris could be encountered within the fill and underlying soft estuarine deposits.”

Id. Even the borings -- which are only 3.5 inches in diameter -- detected three instances of

cobbles. PX 132.6; Tr. 548.

The Contract Documents Indicated the Presence of Pre-Existing Piles and Soil Densification.

NTS had to avoid preexisting piles during performance, a condition disclosed in the

contract documents. JX 2.587. The preexisting piles from the Old Pier were within the footprint

of the new Pier B, and could have adversely affected pile driving. Id.; Tr. 2341; Tr. 439; see also

Tr. 529-30, Tr. 1829-30. None of the borings driven into the footprint of the Old Pier were close

18 Soil anchors are “like tieback anchors on a retaining wall,” but are steel rods or strands

embedded in a hole drilled in the soil and filled with concrete grout. Tr. 617.

43

to where the preexisting Old Pier B piles were located, preventing Hart Crowser from determining

the effects that such preexisting piles in the Old Pier had on the subsurface conditions. Tr. 2528-

29. As Defendant’s geotechnical expert, Rudolph Frizzi, pointed out, “there wasn’t any boring

data right underneath the middle of Pier B,” which made it “clear” that there “wasn’t information

[of the subsurface conditions] .. . underneath Pier B, the former Pier B.” Tr. 2354-55.

Under “Pile Installation and Construction Considerations,” the GEBS stated that “[p]ile

spacing within groups of driven piles or adjacent to existing piles should be no less than 3-pile

diameters on center.” JX 1.2380 (emphasis added); Tr. 2337-38 (Mr. Frizzi testifying that he

believed this sentence was included to warn bidders that there was densified soil around the

preexisting piles that could impact driving). Mr. Brenner testified that densification is not

permanent in soft soils, but in hard soils, a process call “setup” occurs in which the soils around

the piles become “much stronger” over time. Tr. 386; Tr. 407; see also JX 2.2615. The densified

soil could extend as far as 10 feet around the pile, and could cause pile driving issues. Tr. 425,

439; Tr. 2341-42, 2368-69; Tr. 1815, 1829-30; Tr. 2017.

NTS’ subcontractor, KPFF, conducted a LiDAR-imaging survey to determine the location

of preexisting piles so NTS could avoid hitting them. PX 132.5; Tr. 1186; Tr. 156-57. However,

the LiDAR survey only showed “the inclination of the pile from pile cutoff at the pile cap to the

waterline,” which does not account for the pile below the mudline. Tr. 1814. Mr. Davis, a senior

construction specialist at BergerABAM, stated:

Q. [By Counsel for Defendant] Is there anything about the use of LiDAR that

concerns you as to whether it would show where the pre-existing piles really were

in the subsurface?

A. Well, it -- you get a survey that takes a relatively short section of a pile and

-- and you get an inclination and a direction from that survey, which you -- you

probably have 20, maybe 25 feet of pile that you get information on. But you got

another 60 to 80 feet of pile that’s below the water and -- below the -- the surface

soils that you’re assuming that that direction and angle are exactly the same for the

remainder of the pile that you can’t survey.

Q. ... In your experience, are piles below the subsurface always in the same

angle as what you can observe above the subsurface?

A. No. They’re -- they sometimes can be, but more often than not, they’re a

bit different. And the reason I know that is because I’ve been on projects where

we’ ve put inclinometer tubes inside of piles, that you drive the pile, and you send

this “rabbit” down that gets our south-east-west directions at incremental places

along the pile so that you can actually tell -- you can actually plot the course of that

pile and the shape of it that’s below the surface that you can’t see.

Tr. 1827-28. The LIDAR survey fell short of ascertaining where preexisting piles were located

under the surface of Pier B.

Based on this record, NTS has not established a Type I Differing Site Condition. The

contract documents did not indicate that the Contractor would uniformly be able to drive piles five

feet into the glacial layer or that its piles would reach refusal in “predictably” varying elevations.

44

NTS Failed to Demonstrate a Type II Differing Site Condition.

Proving a Type II differing site condition is more difficult than proving a Type I differing

site condition. Randa/Madison Joint Venture III v. Dahlberg, 239 F.3d 1264, 1276 (Fed. Cir. 2001)

(citing Charles T. Parker Constr. Co. v. United States, 193 Ct. Cl. 320, 333 (1970)); Fru-Con Const.

Corp. v. United States, 44 Fed. Cl. 298, 312 (1999) (“Plaintiffs burden in establishing a Type II

differing site condition is relatively heavy.” (citation omitted) (quotation omitted)).

To prove Type II differing site conditions, a contractor must show by a preponderance of

the evidence: “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.” Int'l Tech. Corp., 523 F.3d at 1348 n.4 (citing 48 C.F.R.

§ 52.236-2(a)). As the Federal Circuit has recognized, “the unknown physical condition must be

one that could not be reasonably anticipated by the contractor from his study of the contract

documents, his inspection of the site, and his general experience if any, as a contractor in the area.”

Randa/Madison Joint Venture, 239 F.3d at 1276 (quoting Perini Corp. v. United States, 381 F.2d

403, 410 (Ct. Cl. 1967)); All Power, Inc. v. United States, 60 Fed. Cl. 679, 685 (2004) (“A Type

II differing site condition depends on the existence of three elements -- (1) the condition must be

unknown to the contractor; (2) unusual; and (3) materially different from comparable work.”);

Kiewit Constr. Co. v. United States, 56 Fed. Cl. 414, 417 n.8 (2003); Lathan Co., Inc. v. United

States, 20 Cl. Ct. 122, 128 (1990).

NTS posits that it “was not required to prove the precise cause of the differing site

conditions at Pier B,” and generally describes the condition as subsurface obstructions. Pl.’s Post-

Trial Br. at 143; Tr. 2912. The essence of Plaintiff's claim is that piles reached refusal at higher

elevations than Plaintiff anticipated and assumed in its design. NTS’ geotechnical expert, Ralph

Boirum, testified that during pile driving in Pier B, NTS hit undisclosed logs, cobbles, and boulders

in the beach layer, which caused piles to reach refusal at higher-than-designed elevations and to

be out of alignment.’ Tr. 1147-48. Although Mr. Boirum believed the obstructions were likely

logs, cobbles, or boulders, he testified that there is no way to tell what type of obstructions NTS

hit. Tr. 1150.

9 Based on Plaintiffs proffer, the Court admitted Mr. Boirum as an expert in “[g]eotechnical

investigation, including the preparation, analysis, and presentation of soil borings; the preparation

of geotechnical reports; geotechnical designs, including the designs of pile foundations; the

development, performance, and analysis of test pile programs; the development and draft

specifications for driven piles, including recommendations for means, methods, and equipment;

monitoring, inspection, and evaluation of pile installation; and the geology and subsurface

conditions in the Pacific Northwest, including the Puget Sound area.” Tr. 1128.

Mr. Boirum spent 22 years at Shannon & Wilson before moving to HWA GeoSciences,

where he currently serves as the principal of the firm. Tr. 1105-06. He has served as a consultant

on over 6,000 projects, most of which were in the Puget Sound region. Tr. 1109-10. Mr. Boirum

has a bachelor’s degree in Civil Engineering and a master’s degree in Geotechnical Engineering,

both from the University of Illinois in Champaign-Urbana, and he has completed the coursework

for a Ph.D. in Geotechnical Engineering at the University of Washington. Tr. 1107. He holds a

professional engineer’s license in Washington, Alaska, and Illinois, and was previously licensed

in Oregon. Id.

45

In pressing its Type II differing site condition claim, Plaintiff relies on the testimony of

Mr. Horvitz, Vice President and Senior Principal Geotechnical Engineer at Hart Crowser:

Q. [By Counsel for Defendant] Did you anticipate that obstructions would be

encountered during pile driving?

A. No. The only obstructions that I can think of -- and trying to think back on

it -- would have been interferences with existing piles. Had no reason to believe,

based on the geology, that there would be anything in particular buried out there.

It’s always the possibility that something might be buried in the fill that was placed,

but just based on natural conditions, in situ conditions, we weren’t predicting that

there was going to be anything particular in the way of obstructions.

Tr. 1762-63.

Potential obstructions were, however, disclosed in the contract documents. A condition

cannot be unknown if it was described in the contract documents.

NTS’ geotechnical engineering expert, Mr. Boirum, admitted that the presence of cobbles

and boulders would be obvious in the Puget Sound area:

Q. [By Counsel for Defendant] And the presence of cobbles and boulders in

the Puget Sound area would be known to anyone that walks the beach, right?

A. Certainly.

Q. And the beach deposits in Puget Sound virtually always contain cobbles and

boulders, right?

A. Most of them do, yes.

Q. Virtually always, correct?

A. Well, at some depth or location, yes, I would say that pretty much always

have them.

Tr. 1171.

The Government’s geotechnical expert, Rudolph Frizzi, testified that NTS’ pile driving

problems and out-of-alignment piles were the result of various known and disclosed factors,

including existing piles from the Old Pier, densified soil around the existing piles, and cobbles and

boulders.”° Tr. 2341, 2370-73, 82, 85; see DX 130.2-.3, 130.20-.23. Mr. Frizzi testified that

20 The Court admitted Mr. Frizzi as an expert in geotechnical engineering. Tr. 2323. Mr.

Frizzi is the managing principal at Langan Engineering and Environmental Services, where he has

worked since 1987. Tr. 2289. He has been involved in hundreds of projects and thousands of

geotechnical investigations, most of which involve coastal areas and hundreds of which have

involved indicator pile programs. Tr. 2292-97, 2306-07. He has served as an expert consultant in

geotechnical engineering on approximately 80 matters and has served as a testifying expert on

geotechnical engineering. Tr. 2309-10.

Mr. Frizzi has a B.S. in Civil Engineering from Ohio State University and a master’s degree

in Civil Engineering with a specialization in geotechnical engineering from the University of

Illinois, as well as a Diplomate of Geotechnical Engineering from the Association of

Geoprofessionals. Tr. 2299-2300. Mr. Frizzi holds a professional engineer’s license in civil

46

contract documents did indicate the possibility of obstructions, because the GEBS “identified the

presence of the former Pier B piles” and “identified obstructions in the soils, fill soils.” Tr. 2342-

43.*1 Mr. Frizzi researched “readily available geologic information” regarding the Kitsap County

region, where the Pier B site is located, and came across a 1957 report by J.E. Sceva, “The Geology

and Groundwater Resources of Kitsap County, Washington,” (“Sceva Report”) which discussed

the geology in the region. Tr. 2339-40; DX 130.8; DX 1. He noted that the publicly-available

Sceva Report shows cobbles and “larger size material that exists above the glacial till.” Tr. 2341;

DX 1.18-.26.

The record as a whole establishes that cobbles and boulders were not unusual in the Puget

Sound region and should have been anticipated as potential obstacles to driving piles. As Mr.

Boirum observed, the “glacial till always contains scattered cobbles and boulders” and “[m]arine

beach deposits in Puget Sounds also often contain cobbles and boulders.” PX 133.2; PX 132.4-.6;

Tr. 1171. Besides the Government’s disclosure of such conditions in the contract documents, NTS

knew it was encountering refusal in the beach layer during its Indicator Pile Program before it

determined final design elevations. Tr. 554-55. Hisham Sarieddine, the Vice President at Shannon

& Wilson, testified:

Q. So after the test pile program, Shannon & Wilson was aware that you were

encountering pile refusal on the beach deposits, right?

A. Correct.

Q. And the beach deposits can be a competent bearing soil; is that right?

A. It turned out to be better than we expected. Again, refusal for the piles

without stingers. That’s -- I guess that’s an important point.

Q. Okay. But beach deposits can be a competent bearing soil?

A. At this case, they turned out to be better than we expected to be, yes.

Tr. 554-55; see Tr. 543. Thus, prior to setting the final tip elevation design, NTS determined the

beach deposits were competent bearing soils. JX 2.2615; Tr. 554-55. According to Mr. Horvitz,

competent bearing soils meant “that the material is, for all intents and purposes, as far as designing

pile foundations, is incompressible. And if capacity could be reached in those materials, we would

not necessarily ask anybody to go deeper with the piles.” Tr. 1757.

engineering in Ohio, California, New York, New Jersey, Connecticut, Pennsylvania, Virginia,

South Carolina, Florida, Texas, Colorado, North Dakota, and Wyoming. Tr. 2296, 2300-01.

1 While Mr. Frizzi stated that the documents put NTS on notice that it might encounter

cobbles or boulders, he opined that it was less likely these caused NTS’ pile driving difficulties

because obstructions were not encountered in most of the borings or during the indicator pile

program. DX 130.3. Instead, Mr. Frizzi opined that where greater variation or pile misalignment

occurred, NTS’ decision to use a batter pile design rather than a plumb pile design made it more

likely that NTS would hit existing piles from the Old Pier, and that NTS should have driven more

than the minimum number of piles during its subsurface investigation, tested driving batter piles

at the work site, and driven test piles within the footprint of the Old Pier to mitigate potential high

refusal or misalignment. Tr. 2346, 2350-53, 2355; see also DX 130.2.

47

In sum, NTS was aware of a number of factors that could cause premature or inconsistent

refusal, including densified soils around preexisting piles, riprap, debris, logs, cobbles, and

boulders. Plaintiff has not demonstrated that any of these potential causes for hard driving or the

piles reaching refusal in the beach layer were unknown or unusual in the region or materially

different from comparable work. NTS cannot recover for a Type II differing site condition.

Defective Specifications

In what it characterizes as a defective specifications claim, Plaintiff alleges that the contract

documents furnished by the Government were “incorrect, misleading, and defective as to site

conditions that would be encountered . . . and the method by which piles at Pier B should be

designed and installed.” Pl.’s Resp. at 78. Specifically, Plaintiff alleges it was “misled by

unachievable, latent defects in the plans and/or specifications” regarding: 1) hammer size

selection, 2) permissible tolerances for pile verticality and batter angle, 3) prohibitions on pre-

drilling piles, and 4) prohibitions on removing existing piles. Pl.’s Post-Trial Br. at 147-49. NTS

seeks the same relief under its defective specifications theory, as under its differing site condition

theory, i.e., $9,217,741.37 plus interest for extra costs incurred due to additional design and

construction work due to difficult pile driving. Pl.’s Post-Trial Br. at 198.

In this Court’s view, Plaintiffs allegations regarding misleading contract documents do

not give rise to a defective specifications claim. “When the government provides a contractor with

defective specifications, the government is deemed to have breached the implied warranty that

satisfactory contract performance will result from adherence to the specifications, and the

contractor is entitled to recover all of the costs proximately flowing from the breach.” Essex

Electro Eng’rs, Inc. v. Danzig, 224 F.3d 1283, 1289 (Fed. Cir. 2000). This stems from the

longstanding principle that “if the contractor is bound to build according to plans and specifications

prepared by the owner, the contractor will not be responsible for the consequences of defects in

the plans and specifications.” United States v. Spearin, 248 U.S. 132, 136 (1918) (citations

omitted); see also J. L. Simmons Co. v. United States, 412 F.2d 1360, 1362 (Ct. Cl. 1969).

Here, however, what Plaintiff denominates a defective design specification claim is merely

a recasting of its differing cite condition claim. First, Plaintiff identifies hammer size

recommendations as a design defect. Specifically, Plaintiff contends that it relied upon

recommendations in the GEBS suggesting certain pile hammers -- Delmag 46-32 and Delmag 62-

22 -- in preparing its pricing proposal, but that in performing the contract, it “discovered that the

pile hammers recommended by the GEBS were inadequate and that pile-driving required a larger

hammer than indicated in the GEBS.” PI.’s Post-Trial Br. at 147-48. Plaintiff asserts that “[e]ven

with the more powerful hammer, NTS was unable to drive most of the piles.” Id. at 148. The

GEBS, however, provided NAVFAC’s contractor “with subsurface information, interpretation,

and geotechnical engineering recommendations for the development of the design-build RFP

documents for the P-356 CVN Maintenance Pier” -- it did not require the use of specific

equipment. JX 1.2362. Although the GEBS mentioned two hammer sizes the contractor could

use, NTS was permitted to choose whatever hammer size it wanted. This GEBS recommendation

was not a design specification. See J. L. Simmons Co., 412 F.2d at 1362 (“[I]n [design]

specifications, the defendant set forth in precise detail the materials to be employed and the manner

in which the work was to be performed, and plaintiff was not privileged to deviate therefrom, but

was required to follow them as one would a road map.”). The predicate for this claim was the

differing site condition, not a constraint on hammer size. As NTS noted in its certified claim,

48

“Td]Jespite the larger hammer, most of the piles encountered refusal conditions above the Glacial

Soil deposits as a result of Differing Site Conditions.” PX 36.10 (emphasis added).

Second, Plaintiff argues that the contractual tolerances for pile verticality and batter angle

were unattainable and that NTS was forced to perform substantial additional work and “modify

its design and install 28 additional piles.” Pl.’s Post-Trial Br. at 149. NTS points to Subsection

3.34 of Contract Specifications Section 31 62 13.99 which “limited variations in pile verticality

for plumb piles to no more than one (1) percent from vertical” and “variations of batter piles to

no more than two (2) percent from the pile axis in elevation and not more than one (1) degree in

plan.” Pl.’s Post-Trial Br. at 148-49; JX 1.910. NTS claims that “[t]hrough no fault of NTS or

its pile driving subcontractor, ACC, numerous piles were driven out of the specified tolerances at

the Mole Quaywall and Pier B.” Pl.’s Post-Trial Br. at 149. NTS has not, however, pointed out

anything defective about the tolerance requirements -- its claim is that it could not meet those

tolerances due to differing site conditions in the soil.

Plaintiff's geotechnical expert, Mr. Boirum, testified that piles were out of tolerance

because they hit obstructions:

Q. [By Counsel for Plaintiff] In your opinion, were the tolerances required in

the contract consistently achievable given these subsurface conditions?

A. Well, the out of tolerances that were -- the ones that were substantially out

of tolerance were because they hit something. I mean, it’s -- I don’t believe that

there’s any reason why the piles would have been out of tolerance with the methods

and equipment the contractor used if some kind of an obstruction wasn’t hit.

Tr. 1169-70.

Third, Plaintiff argues that contract prohibitions on pre-drilling “prevented NTS and ACC

from being able to drive piles through or by obstructions to design elevations and within specified

tolerances.” Pl.’s Post-Trial Br. at 150. Specifically, NTS alleges “pre-drilling would have

reduced or eliminated the problem of piles reaching refusal at elevations higher than designed.”

Pl’s Post-Trial Br. at 149. Again, the prohibitions on predrilling were only problematic because

NTS had pile driving problems due to alleged differing site conditions.

Fourth, Plaintiff argues that to “the extent that old Pier B piles caused new Pier B piles to

reach refusal at elevations higher than indicated in the GEBS and/or designated by NTS and/or

caused Pier B piles to be driven out of alignment, these difficulties are the responsibility of the

[G]overnment for requiring the old Pier B piles [to] remain in place.” Pl’s Post-Trial Br. at 150.

Again, the gravamen of this claim is not the requirement that old Pier B piles remain but rather

Plaintiff's pile-driving difficulties due to differing site conditions. While the presence of the Old

Pier B piles may have caused or exacerbated this difficulty, that does not render the requirement

to maintain Old Pier B piles a design defect.

All of Plaintiff's four defective specifications claims are intertwined with its differing site

conditions claims. The Federal Circuit has recognized that although differing site conditions and

defective specifications claims are distinct in theory, they collapse into a single claim where the

defective specifications and differing site condition claims are intertwined. See Meridian Eng’g

Co. v. United States, 885 F.3d 1351, 1361 (Fed. Cir. 2018) (finding that Meridian’s defective pipe

specification claim was “so intertwined” with its DSC claim as to constitute a single claim) (citing

49

Comtrol, Inc. v. United States, 294 F.3d 1357, 1362 (Fed. Cir. 2002)). Here, NTS’ defective

specification claims regarding hammer size, pile tolerances, prohibitions on pre-drilling, and

prohibitions on removing existing piles are “so intertwined” with its differing site condition claims

that they collapse into a single claim. As such, this Court treats Plaintiffs allegations regarding

defective specifications as part and parcel of its differing site conditions claim.

The Court Has Jurisdiction Over NTS’ Constructive Change Claim.

Defendant argues that the Court lacks jurisdiction over NTS’ constructive change claim

because Plaintiff's counsel withdrew an exhibit from evidence, PX 74, that detailed its REA 14

claim, and failed to establish that NTS presented this claim to the CO. Def.’s Resp. at 144-47.

The REA 14 claim stems from the Government’s requirement that NTS and its designer, KPFF,

defend the Pier B design as to global stability after the Government approved that design. This

Government conduct caused NTS to stop critical path work from March to May 2010, until the

design issue was resolved, and then NTS accelerated work to meet the Government’s original

project deadline. Tr. 903; JX 16.1; JX 23; JX 24; Tr. 1529-30.

On April 1, 2011, NTS submitted REA 14, claiming a constructive change and seeking

$1,881,900 representing costs incurred due to the global stability dispute. REA 14 is contained in

two exhibits -- PX 73, Plaintiff's REA 14 Transmittal Letter, and PX 74 titled REA No. 14 Global

Stability Delay Explanation of Scope, which detailed the basis for REA 14.

Given Plaintiff's withdrawal of PX 74, Defendant asserts that by citing documents “not in

evidence, or which are wholly silent as to the issues NTS now argues it presented to the contracting

officer,” NTS failed to establish that this Court has jurisdiction over its REA 14 claim. Def.’s

Resp. at 146. The Government avers that it “does not dispute that NTS presented something to the

contracting officer regarding its REA 14 claim,” but that “[i]t is not clear. . . either from NTS’s

arguments in its post-trial briefing or the evidentiary record developed at trial, what, exactly, that

something is, let alone that it was a proper claim.” Id. at 145.

It is undisputed that Plaintiff withdrew PX 74 (REA No. 14 Global Stability Delay

Explanation of Scope) and PX 75 (Global Stability: Schedule Perspective) during trial. Id. at 145.

Plaintiff submits that “[t]hese exhibits were ultimately withdrawn because NTS .. . believed that

the evidence was in the record elsewhere, and NTS sought to simplify the evidentiary issues that

were coming up during trial.” Tr. 3053. However, the evidence was not in the record elsewhere.

In PX 73, the transmittal letter, NTS briefly summarized REA 14 stating “[t]his REA with a

requested cost of $1,881,900.00 is submitted to the Government to recover extra cost[s] resulting

from NTS’s mitigation of the 64 work day stoppage on Pier B, the Global Stability Delay.” PX

73.1. The only detailed explanation of REA 14 was contained in the exhibit that Plaintiff

withdrew, PX 74.

Plaintiff's Motion to Reopen the Record

NTS filed a post-trial motion to reopen the record and admit PX 74 into evidence arguing

that it indicates the scope and timing of Plaintiff’s claim. Pl.’s Supp. Br. at 7-11.?? Defendant

asserts that NTS cannot justify reopening the evidentiary record because NTS’ failure to introduce

22 NTS included this motion in its Supplemental Brief. Pl.’s Supp. Br. at 7-11. NTS did not

seek to admit PX 75, the Global Stability Schedule Perspective.

50

PX 74 was inadvertent, and admission of PX 74 now would prejudice the Government. Def.’s

Supp. Br. at 2-3.

The Court of Federal Claims addressed the standards for reopening the record post trial in

Dairyland Power Co-op. v. United States, 103 Fed. Cl. 640 (2012). There, the Court stated that

although reopening the record “is to be encouraged to afford the fullest possible hearing

(particularly in nonjury cases),” there are three factors a trial court must consider: “1) the probative

value of the evidence proffered, 2) why the evidence was not offered earlier, and 3) the likelihood

of undue prejudice to the opposing party.” Id. at 642 (quoting Michael H. Graham, Handbook of

Federal Evidence § 611:5 (6th ed. 2009) and citing Precision Pine & Timber, Inc. v. United States,

596 F.3d 817, 833-34 (Fed. Cir. 2010)).

Application of these factors here warrants reopening the record and admitting Exhibit PX

74. As to the document’s probative value, PX 74 details the scope of the claim presented to, and

denied, by the contracting officer. PX 74 speaks specifically to the following topics: Basis of

Request, Design Approval Process, Schedule Impact and Time Impact Analysis, Overview of Cost

Impacts to the Project, Impact Cost Pricing, and Benefits to Project, and PX 74 is not elsewhere in

the trial record. Although PX 156, Plaintiff's request for a final decision on REA 14, which was

admitted into the record, stated that REA 14 was attached, it was not included in the version of PX

156 that was admitted into evidence. PX 74 is the only trial exhibit which explains Plaintiff’ s

global stability delay claim and delineates the costs associated with the claim. As such, the exhibit

clearly has probative value.

With respect to the second Dairyland factor -- why the evidence was not offered earlier --

NTS stated it believed “that the same information was sufficiently before the Court in its REA 14

transmittal and the COFD,” and that the Government “had stipulated to the REA 14 claim costs

for KPFF.” Pl.’s Supp. Br. at 9. While Plaintiff cites Paragraph 14.a. of the Stipulations, which

lists one cost element of REA 14, i.e., the agreed-upon quantum of KPFF costs in the amount of

$115,937.71, the other costs that comprise the $1,881,900 claim are not there. May 25, 2018

Stipulations 7 14.a. NTS’ justification for not offering the evidence earlier does not hold water.

Finally, with respect to Dairyland factor 3 -- prejudice from admitting the evidence --

Defendant argues:

had NTS put this document into evidence, the Government could have examined

Ms. Mitchell to have her confirm that she did not understand that PX 74 showed

some basis prior to March 8, 2010 for NTS’s REA 14 claim. NTS did not put the

document into evidence, however, and we did not have the opportunity to establish

it does not show what NTS claims. That is prejudice.

Def.’s Supp. Br. at 3.

Defendant’s claim of prejudice is unpersuasive. PX 74 clearly and expressly references

costs beginning in November 2009:

By letter dated February 8, 2011, KPFF Consulting Engineers submitted a request

for additional compensation in the amount of $115,938 for work to validate KPFF’s

design approach. KPFF claims the costs incurred for its professional staff in the

period November 2009 — November 2010 totaling $78,940. KPFF also claims

$36,997 for work performed by sub-consultant Ben C. Gerwick, Inc. Consulting

Engineers in the period January — April 2010. The documentation provided by

51

KPFF in support of its request for additional compensation is included at

Attachment H.

PX 74.7. The document speaks for itself, and a claim of prejudice based on a witness’ inability to

convey her purported “understanding” of such a document fails.

Although Plaintiff erred in withdrawing PX 74, Defendant has been on notice of PX 74

and its contents since the inception of this dispute. Indeed, the transmittal letter in PX 73 along

with the details of the claim in PX 74 were sent to the Government on April 1, 2011, and were

addressed in the COFD. In her final decision, the CO summarized NTS’ claim, stating:

In refuting the Administrative Contracting Officer’s denial, your summary of

claims is as follows:

oe

. . NTS respectfully requests that the Navy reconsider the fact that it

constructively changed the work at Pier B when it issued its untimely and

unanticipated Notice of Non-Compliance on 08 March 2010 alleging that NTS did

not comply with the ‘global stability’ (K factor) requirements of the RFP. No

reasonably prudent contractor would continue with critical construction in the face

of such a notice from the Navy. Instead, NTS properly completed those

construction tasks that were appropriate and immediately redirected its design staff

to defend and/or reconcile the non-compliance allegations brought by the Navy’s

A/E, Berger/Abam. The Navy was well aware of NTS’ redirection of construction

activities and design personnel until the matter was resolved. Immediately after

resolution, NTS resumed construction but, in the absence of a time extension from

the Navy for the delay it imposed by its unfounded notice of non-compliance, NTS

had no choice other than to accelerate.”

JX 21.1-.2 (quoting NTS’ letter to NAVFAC asking for reconsideration of REA 14, PX 95).

Further, PX 74 was attached to the Complaint as Exhibit 4. The Government in its Answer

admitted Exhibit 4 to the Complaint was a copy of NTS’ quantification of REA 14 that was

submitted to the contracting officer. While attachments to pleadings are not in evidence, it would

place form over substance to refuse to admit this document when Defendant has been responding

to it throughout all phases of this litigation. See Veloz v. Foremost Ins. Co. Grand Rapids,

Michigan, 306 F. Supp. 3d 1271, 1281 (D. Or. 2018) (“pleadings are not evidence”); Globe Refin.

Co. v. Landa Cotton Oil Co., 190 U.S. 540, 546 (1903).

The Court grants NTS’ motion to repoen the record and admits PX 74 into the record.

Costs Incurred Prior to March 8, 2010

In the alternative, Defendant contends that NTS failed to establish this Court’s jurisdiction

over claims for costs incurred prior to March 8, 2010. Def.’s Resp. at 146-47. Defendant argues

that NTS’ claim is based on the Government’s March 8, 2010 letter questioning the Pier B design

and only encompasses work occurring after March 8, 2010, not subcontractor work performed

prior to March 8. Def.’s Resp. at 145-46; Def.’s Supp. Br. at 1. This argument is not supported

by the record. The contracting officer’s final decision reflects that NTS requested costs incurred

52

prior to March 8, 2010 in its certified claim and that the contracting officer was aware that NTS

was claiming these costs. JX 21.1-.2.

The contracting officer’s final decision states that NTS requested damages of $1,881,900,

which includes $115,937.71 for work performed by KPFF and its sub-consultant, Gerwick, to

validate KPFF’s design between November 2009 and November 2010, and quotes NTS’ claim,

which states that NTS “redirected its design staff to defend and/or reconcile the non-compliance

allegations brought by the Navy’s A/E Berger/Abam.” JX 21.2; JX 34; PX 74; PX 77. This

redirection occurred between November 2009 and March 2010.

Finally, there is no basis for the Government’s suggestion that NTS’ claim may not have

been “a proper claim.” Def.’s Resp. at 145. To establish jurisdiction in this Court, a plaintiff must

first submit a certified claim to a contracting officer for a final decision within six years of the

claim’s accrual and then must appeal any adverse final decision to this Court within 12 months.

41 U.S.C. § 7103(a)(4)(A); 41 U.S.C. § 7104(b)(3). As reflected in the contracting officer’s final

decision, NTS submitted a certified claim to the contracting officer for $1,881,900 pursuant to

FAR 52.243-4 within six years after the accrual of the claim. JX 21.1. CO Mitchell correctly

describes NTS’ June 26, 2014 letter, PX 156, as a “certified claim.” CO Mitchell denied this claim

on September 4, 2014, and Plaintiff filed the present suit on August 17, 2015, within 12 months of

the denial. JX 21; Compl. (15-885C).”°

NTS Performed Work Beyond the Contract Requirements at the Government’s Direction.

NTS seeks compensation for a constructive change claiming that it performed work beyond

the scope of the Contract because NAVFAC required a reevaluation of its design when

BergerABAM questioned the global stability of Pier B. “A constructive change occurs where a

contractor performs work beyond the contract requirements without a formal order, either by an

informal order or due to the fault of the Government.” Kiewit Infrastructure W. Co. v. United

States, 972 F.3d 1322, 1329 (Fed. Cir. 2020) (quoting Int’] Data Prods. Corp. v. United States, 492

F.3d 1317, 1325 (Fed. Cir. 2007)); see Pl.’s Supp. Br. at 2 (Jan. 31, 2022). For a claim to succeed

under the theory of constructive change, a plaintiff “must show (1) that it performed work beyond

the contract requirements, and (2) that the additional work was ordered, expressly or impliedly, by

the government.” Bell/Heery v. United States, 739 F.3d 1324, 1335 (Fed. Cir. 2014).

After approving NTS’ Pier B design, the Government and its consultant, BergerABAM,

required NTS and its designer, KPFF, to defend the Pier B design’s k-factor and global stability

calculations over the course of four months, culminating in NTS stopping critical path work from

March to May 2010. JX 23; JX 24; Tr. 1529-30. To resolve this design issue, NTS commissioned

an independent, third-party review from Ben C. Gerwick, Inc (“Gerwick”’). JX 25. Ultimately,

the Government determined the issue was resolved by NTS’ Delta 12 redesign that addressed the

unrelated skew angle problem. JX 16.7. Once the dispute was resolved and critical path work

could resume, NTS accelerated work to meet the Government’s original project deadlines, and

deemed this extra work to be a constructive change to the Contract. Tr. 903-04.

23 NTS claims that PX 73 is the certified claim in post-trial briefing, but neither PX 73 nor

PX 74 include any contractor certification. Pl.’s Post-Trial Br. at 120-21. Rather, PX 156 -- the

June 26, 2014 letter -- constitutes the certified claim because it is asking the CO for a final decision

and contains the required CDA certification by Mr. Fox.

53

The global stability dispute is centered on compliance with the ACI code. Section 10.13.6

of ACI 318-05 is used to check the global stability of a sway frame structure, like Pier B, and

prescribes three methods to comply with the Code’s stability requirements: A, B, or C. Tr. 737-

38. NTS’ subcontractor chose method A. NAVFAC approved the design, but later between

November 2009 and May 2010, BergerABAM questioned KPFF’s k-factor and KPFF’s use of

method A of ACI 318-05, Section 10.13.6. According to KPFF’s former owner, Mr. Johnson,

method A was the most precise method. Tr. 739. He explained:

Well, for a project like this, I would choose A. A is the one -- we -- we have a

computer model, three-dimensional computer model that depicts the -- the entire

structure. The structure has batter piles and plumb piles. It has a sloping ground

condition that varies from one end of the structure to the other.

So the complexity of the -- of the project demands a precise approach to doing this.

And so A is the most precise method. It also requires you to have the analytical

horsepower to get that done, and so which we do have. And rightfully so for a

significant project, you would be applying that type of methodology for more

complex and more significant structures.

As -- the other ones are approximations. They are things that you can do on a

spreadsheet without a computer model. And

This text is long and has been trimmed here. Open the source document for the complete record.