# Nova group/tutor-saliba v. United States

> United States Court of Federal Claims · March 17, 2022

URL: https://www.frixlaw.com/law-library/cases/6324577

## Case

- **Court:** United States Court of Federal Claims
- **Decided:** March 17, 2022
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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.

«
?

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Approximate Location

ices-203 oc Mole Quaywall

oe
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B2 =~
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Approxi ion Pie!
Approximate Location Pier B Frierto Demolition:

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id, Octagonal, Pre

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a n. Solid, Octagonal
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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.
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? rs Na =
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|

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

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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:

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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
va

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6324577. Public record. Not legal advice.