# CBCA 2653 GRANTED: December 9, 2016

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## Record

- **Collection:** Agency decision
- **Document type:** Agency decision

## Text

CBCA 2482 DENIED;
CBCA 2653 GRANTED: December 9, 2016

CBCA 2482, 2653

CHOCTAW TRANSPORTATION COMPANY, INC.,
Appellant,
v.
DEPARTMENT OF AGRICULTURE,
Respondent.
S. Leo Arnold and Matthew W. Willis of Ashley, Ashley & Arnold, Dyersburg, TN,
counsel for Appellant.
Danny L. Woodyard, Office of the General Counsel, Department of Agriculture, Little
Rock, AR; and L. Benjamin Young, Office of the General Counsel, Department of
Agriculture, Washington, DC, counsel for Respondent.
Before Board Judges DANIELS (Chairman), GOODMAN, and DRUMMOND.
GOODMAN, Board Judge.
Appellant, Choctaw Transportation Company, Inc. (Choctaw or appellant), on behalf
of itself and its subcontractor Bertucci Contracting Company, LLC (Bertucci),1 appeals two
decisions issued by a contracting officer of respondent, Department of Agriculture, Natural
Resources Conservation Service (NRCS).
1

Choctaw and Bertucci are referred to in this opinion when witnesses and
documentation specific to each are mentioned.

CBCA 2482, 2653

2

The contract was for the construction of a rock groin and eight breakwaters at
Raccoon Island, in the Gulf of Mexico, off the coast of Louisiana. As more fully detailed
in this decision, appellant submitted its bid for the contract in early August 2005 in the
amount $4,056,032.50. Several weeks later, Hurricane Katrina struck the project site.
Appellant was awarded the contract in early September 2005, and soon thereafter Hurricane
Rita struck the project site and Hurricane Wilma entered the Gulf of Mexico. Respondent
sent a survey team to re-survey the project site, and issued modification 1 to the contract in
December 2005, concurrent with the notice to proceed. Modification 1 made specific
alignment changes to the groin and changes to the breakwaters. In modification 1, the NRCS
contracting officer stated that these changes were “due to changed water depths as the result
of the hurricane,” and requested that appellant submit a price proposal in response to the
changes ordered in the modification. Appellant and its subcontractor did not submit a price
proposal before beginning performance. Later, during contract performance, appellant
advised that a proposal would be submitted once the work was complete.
Appellant concluded contract performance in September 2007. In February 2010,
appellant submitted a proposal for an equitable adjustment as the result of the changes
ordered in modification 1. The parties were unable to resolve the request for equitable
adjustment. In January 2011, appellant submitted a certified claim on behalf of itself and
Bertucci seeking compensation for delay and disruption resulting from modification 1 in the
amount of $4,144,191.20. On April 15, 2011, respondent’s contracting officer issued a
decision denying the certified claim in its entirety. Appellant’s ensuing appeal of this
decision was docketed as CBCA 2482. On November 21, 2011, respondent’s contracting
officer issued a second decision, asserting a government claim of actual damages against
Choctaw in the amount $15,032.19, and appellant’s appeal of this decision was docketed as
CBCA 2653.
A hearing on the merits in these appeals (the hearing) was held on April 20-24, 2015,
in Washington, D.C. Two fact witnesses testified in support of appellant’s claims:
Mr. Gregory Ford, Choctaw’s vice president of operations, and Mr. Anthony Zelenka,
Bertucci’s president.2 Two witnesses designated as experts testified on behalf of appellant:
Mr. Ruben McCoy, a computer-aided design (CAD) consultant, and Mr. William Connole,
a professional engineer, who was tendered as an expert on delay and disruption analysis and
costs. Mr. Ford and Mr. Connole were also called as rebuttal witnesses by appellant.

2

References to “Mr. Zelenka” in this decision are to Anthony Zelenka. There are
occasional references to Steve Zelenka, Mr. Zelenka’s brother.

CBCA 2482, 2653

3

Respondent presented the testimony of five fact witnesses: Mr. Ralph Broome, a
procurement analyst for the NRCS, who served as contracting officer for the contract at
issue; Mr. Bradley Sticker, a state construction engineer during the contract period; Mr. Dale
Garber, an engineer for the NCRS and the contracting officer’s technical representative
(COTR) for the contract at issue; Mr. Edmund Geiring III, a registered professional engineer,
now retired from the NRCS, who was the state engineer for the NRCS during the contract
period, involved in design and construction; and Mr. Ben Hebert, an NRCS employee and
inspector on the contract at issue. Respondent did not present any expert or rebuttal
witnesses.
During the hearing, respondent’s counsel stated that respondent would waive its claim
for damages against appellant. Transcript, Vol. 3 at 151.3 Accordingly, appellant is entitled
to payment of the retained funds in the amount of $15,032.19 and we grant CBCA 2653. The
remainder of this decision is with regard to CBCA 2482, appellant’s claim arising from
modification 1.
After the hearing concluded, the parties filed post-hearing briefs and post-hearing
reply briefs. Having reviewed the record in these appeals,4 including the testimony, appeal
file, and pleadings of the parties, as stated herein, we deny CBCA 2482.
Findings of Fact
Previous Contract Performed by Bertucci at Raccoon Island
Raccoon Island (the island) is a small barrier island of approximately 270 acres off
the coast of Louisiana, approximately twenty-eight miles southwest of Cocodrie, Louisiana.
3

“Transcript” refers to the transcript of the hearing on the merits. “Appeal File”
refers to respondent’s appeal file. “Appellant’s Supp. Appeal File” refers to appellant’s
supplement to the appeal file, and “Respondent’s Supp. Appeal File” refers to respondent’s
supplement to the appeal file.
4

After submission of post-hearing briefs, appellant filed a renewal of previouslyfiled objections to certain documents in respondent’s appeal file. These objections had been
submitted before the hearing, and the Board had deferred ruling on the objections until
respondent sought to admit any of the documents during the hearing. While respondent did
not seek to admit or otherwise rely upon any of the objected-to documents at the hearing,
respondent did refer to some of the documents in its post-hearing briefs. This decision does
not rely upon any of the documents to which appellant objects. Accordingly, we do not rule
on appellant’s objections, as the objections are moot.

CBCA 2482, 2653

4

It is a major rookery (nesting area) for the brown pelican, a protected species. Its southern
shoreline faces the Gulf of Mexico. The island’s location helps to protect the Louisiana
mainland from coastal erosion.
Because the island was losing significant land mass from erosion, the NRCS awarded
a contract to Bertucci in 1997 for a demonstration project for the construction of eight
segmented rock breakwaters to be built approximately 250 feet off the southern coast of the
south/southeastern half of the island, to determine if the breakwaters would prevent or slow
the rate of erosion and trap sediment so that accretion to the land mass would occur. These
breakwaters were designated breakwaters 0 (zero) through 7. During Bertucci’s performance
of that demonstration contract, Bertucci encountered water depths that shallowed
significantly since the job was bid. Respondent’s Supp. Appeal File, Exhibit RR at 2411.
According to respondent, the breakwaters built by Bertucci in 1997 worked so well
that respondent decided eight additional breakwaters should be built to protect the
southwestern half of the island. The construction of the additional eight breakwaters was
included in the contract which is the subject of these appeals.
The Solicitation and Project Description
With regard to the contract at issue in these appeals, on July 5, 2005, NRCS issued a
solicitation for bids for “all labor, equipment, materials, transportation, and incidentals
necessary to complete the work included in the attached specifications and drawings for
Raccoon Island Shore Protection/Marsh Creation Project Phase A (the project).” Appeal
File, Vol. 1 at 1. The project included the construction of eight breakwaters and a rock groin
(groin)5 to be built by placement of riprap. The eight breakwaters, designated 8 through 15,
were be built in the Gulf waters approximately 250 feet south of the island. The groin was
to be built to connect the eastern end of the island to the northeastern-most tip of breakwater
zero, previously built by Bertucci pursuant to its contract in 1997. The groin’s purpose was
to prevent the current from scouring through the gap between the island and breakwater zero.
Choctaw and Bertucci
Choctaw and Bertucci bid this project as a team, with Choctaw as the prime contractor
and Bertucci as its subcontractor. Choctaw has fifty-seven years of experience constructing

5

A groin is a structure built from shore into the water perpendicular to the shoreline
to protect against erosion and to trap materials to build up a new embankment. Appellant’s
Post-Trial Brief at 1 n.2.

CBCA 2482, 2653

5

rock projects along the Mississippi River and in the Gulf of Mexico. Bertucci has over fifty
years of experience constructing rock structures in the Gulf of Mexico, including the
demonstration project at the island in 1997. Choctaw’s responsibility was to purchase the
stone and deliver barges fully loaded with riprap (approximately 1200 tons per barge) to
Bertucci’s yard near New Orleans. Bertucci was to provide placement of all riprap and fabric
and perform progress surveys.
The Solicitation
Indication of Changing Water Depths
The solicitation contained detailed drawings with regard to the eight breakwaters and
the groin and various notes on the drawings and specifications concerning shallow water and
the dynamic nature of the environment at the project site.6
A drawing entitled Breakwater Layout contained the following notation: “Water
depths at breakwaters vary from 3’ to 11’ depending on location and tides.”7 Appeal File,
Vol. 1 at 90.
The solicitation drawings for the eight breakwaters included cross-sections (Sheets
10-13 of 19). The following language was stated on each sheet:
NOTE: Bottom elevations may change due to the dynamics of the
environment. X[Cross]-Sections derived from surveys taken in July 2003.
Appeal File, Vol. 1 at 97-100.

6

Mr. Zelenka acknowledged that he had read through the plans and specifications for
the project and was aware of the notes that warned about shallow water and the dynamics of
the environment at Raccoon Island. Transcript, Vol. 2 at 56. Mr. Ford also acknowledged
that he had read the same information and was aware of the dynamic nature of the Gulf. Id.
at 223.
7

Mr. Zelenka testified that he expected to find the deeper depths near the eastern end
of the island and breakwater zero. Transcript, Vol. 1 at 187.

CBCA 2482, 2653

6

Drawing sheet 5 of 19 indicated conditions at the place where the groin was to be
built. Water depths at the site of the groin were represented to be zero feet at the west end
to approximately -11 feet on the east end. There is a note on this drawing that states,
“[E]xcavation for floatation channel will not be allowed.”9 Appeal File, Vol. 1 at 92.
8

The solicitation contained cross-section drawings for the groin (sheets 14 - 19 of 19).
The cross-sections were for various stations at intervals along the entire length of the groin
to be constructed, and the following language was stated on each drawing:
NOTE: Bottom elevations may change due to the dynamics of the
environment. X-Sections derived from surveys taken in July 2004.[10]
8

As indicated throughout this decision, Mr. Ford, Mr. Zelenka, and Mr. Connole
testified that the information in this drawing sheet was heavily relied upon by Choctaw and
Bertucci in preparation of the bid. Mr. Zelenka testified that the plans for this project
indicated the same water depths as in 1997 at the eastern end of the island where the groin
was to be built. Transcript, Vol. 2 at 86.
9

This drawing, sheet 5 of 19, does not contain the note that appears on the drawings
detailing cross-sections of the groin that references the possibility of changing bottom
elevations due to the dynamic environment. Mr. Zelenka testified that he relied on this
drawing to determine water depths at the groin, and this was the only drawing that indicated
those depths. Transcript, Vol. 2 at 83. Mr. Ford also testified that he reviewed this sheet,
and he determined there was sufficient water depth to float half-loaded barges at the eastern
end of the island where the groin was to be built. Id. at 127, 179. When asked if there were
“any other plan sheets or information provided with the contract documents regarding
elevations or water depths behind the groin where barges would be fleeted,” Mr. Ford
responded that there were not. Id. at 127.
10

Mr. Zelenka testified that the elevations indicated on these drawings were not water
depths, but the elevations of the groin that would be constructed. The water depths would
vary with the tide and season, and what was important was the depth of the water away from
the groin that would allow for floatation of equipment. He also stated that the elevations are
not just next to the groin but would extend out past the groin. Transcript, Vol. 1 at 318-19.
He later testified that these cross-sections do not show water depths surrounding the groin,
but depths under the groin to be constructed. Id., Vol. 2 at 88.
It appears that the surveys for the breakwaters and the groin area were conducted a
year apart, in 2003 and 2004. Mr. Zelenka testified at the hearing that appellant’s claim does
not involve the water depths at the breakwaters. Transcript, Vol 2. at 86. During the hearing,

CBCA 2482, 2653

7

Appeal File, Vol. 1 at 101-06.
In addition to the solicitation drawings, special provision 8 of the solicitation
contained the following with regard to water depths:
The contractor is advised that tidal fluctuations in this area will vary due to
weather and daily tides. Historical tide data can be obtained from the U.S.
Army Corps of Engineers or the U.S. Geological Survey. The contractor is
responsible for taking the appropriate measures to ensure that tidal fluctuations
do not interfere with the prosecution of the contract.
Appeal File, Vol. 1 at 31.
With regard to site access, the solicitation drawings noted access channels near the
eastern end of the groin and near breakwater eight. Appeal File, Vol. 1 at 90. No water
depths were indicated at or near the access channels. Transcript, Vol. 1 at 309 (Mr. Zelenka).
The following was included in the solicitation:
Construction Specification 8 Mobilization/Demobilization Paragraph 4.A.2:
Access to the sites may be impeded due to shallow water conditions in the
channels and/or existing utilities. The contract shall not be modified to
increase the performance time or monetary value as a result of difficulty in
accessing these sites due to shallow water conditions or existing utilities. No
excavation to increase flotation (draft depth) will be allowed.
Appeal File, Vol. 1 at 61.
Government counsel questioned whether the access channels were the only designated
route to the breakwaters, as respondent pre-bid allowed access from any part of the Gulf.
Transcript, Vol. 2 at 32. Mr. Zelenka agreed that access to the breakwaters was allowed from
any part of the Gulf. Id.

he commented that an NRCS memorandum dated June 16, 2004, regarding a 2003 survey at
the groin (Appellant’s Supp. Appeal File, Exhibit 17) contained “incorrect statements” as to
conditions at the groin that were ultimately found during performance. Transcript, Vol. 1 at
190. Apparently the groin area was surveyed again during the following month, as stated in
the solicitation drawings.

CBCA 2482, 2653

8

The Dynamic Environment at the Project
The dynamic environment of changing water depths at the project site, noted in the
solicitation plans and specifications, and subsequently reiterated in modification 1 of the
contract, is mentioned in a document entitled “Louisiana Coastal Area, Louisiana Ecosystem
Restoration Study,” relied upon by appellant’s expert, which reads in part:
The morphology and integrity of the barrier islands along Louisiana’s
shoreline are directly related to the supply of sediment contributed to the coast
and the physical processes operating in the region. The coastal zone is one of
the most dynamic environments that exist in nature. The same processes that
built the barrier islands are also partly responsible for their erosion and
fragmentation.
Appellant’s Supp. Appeal File, Vol. 6, Exhibit 15 at 3341-42.
This study also includes an aerial view of the east end of Raccoon Island and states
as follows:
The measurement and documentation of onshore sediment transport is a
complex process that is not well understood. However, some examples do
occur along the Louisiana coast indicating that this phenomenon is taking
place. For example, the accumulation of sand in the lee[11] of several of the
breakwaters at the eastern end of Raccoon Island (Figure D.2-26). Bottom
boundary layer and sediment transport measurements made on the shoal
indicate a net onshore mean current and sediment flux during both fair-weather
and storm conditions. Sand not only is deposited in the lee of the structures
but has, as shown in the figure, accumulated between the breakwater gaps and
seaward of them.
Appellant’s Supp. Appeal File, Vol. 6, Exhibit 94, Attachment 15 at 3367.

11

Lee indicates the sheltered side of the island, in this case the northward side not
facing the Gulf of Mexico.

CBCA 2482, 2653

9

The Length of the Groin
The solicitation drawings indicated that the groin that was to be built from the island
to breakwater zero to be 1084 feet in length.12 Appeal File, Vol. 1 at 92.
Provisions for Differing Site Conditions, Site Investigation, Changes and
Severe Weather
The solicitation and contract incorporated by reference Federal Acquisition Regulation
(FAR) 52.236-2, Differing Site Conditions (APR 1984); FAR 52.236-3, Site Investigation
and Conditions Affecting the Work (APR 1984); and FAR 52.243-4, Changes (AUG 1987).
Appeal File, Vol. 1 at 17. These clauses read as follows:
Differing Site Conditions (APR 1984)
(a) The Contractor shall promptly, and before the conditions are disturbed,
give a written notice to the Contracting Officer of –
(1) Subsurface or latent physical conditions at the site which
differ materially from those indicated in this contract; or
(2) Unknown physical conditions at the site, of an unusual
nature, which differ materially from those ordinarily
encountered and generally recognized as inhering in work of the
character provided for in the contract.
(b) The Contracting Officer shall investigate the site conditions promptly after
receiving the notice. If the conditions do materially so differ and cause an
increase or decrease in the Contractor’s cost of, or the time required for,
performing any part of the work under this contract, whether or not changed
as a result of the conditions, an equitable adjustment shall be made under this
clause and the contract modified in writing accordingly.
(c) No request by the Contractor for an equitable adjustment to the contract
under this clause shall be allowed, unless the Contractor has given the written

12

Mr. Zelenka testified that while the plans did not indicate any area for fleeting
barges behind the groin, the solicitation drawings, specifically sheet 5 of 19, indicated water
depths sufficient at the eastern end of the groin to fleet barges. Transcript, Vol. 2 at 88-89.
Mr. Ford also testified regarding appellant’s intent to fleet light-loaded (half-loaded) barges
behind the groin once the groin was built, as the plans and specifications indicated a staging
area behind the groin. Id. at 132.

CBCA 2482, 2653
notice required; provided, that the time prescribed in paragraph (a) of this
clause for giving written notice may be extended by the Contracting Officer.
(d) No request by the Contractor for an equitable adjustment to the contract for
differing site conditions shall be allowed if made after final payment under this
contract.
Site Investigation and Conditions Affecting the Work (Apr 1984)
(a) The Contractor acknowledges that it has taken steps reasonably necessary
to ascertain the nature and location of the work, and that it has investigated and
satisfied itself as to the general and local conditions which can affect the work
or its cost, including but not limited to
(1) conditions bearing upon transportation, disposal, handling,
and storage of materials;
(2) the availability of labor, water, electric power, and roads;
(3) uncertainties of weather, river stages, tides, or similar
physical conditions at the site;
(4) the conformation and conditions of the ground; and
(5) the character of equipment and facilities needed preliminary
to and during work performance.
The Contractor also acknowledges that it has satisfied itself as to the character,
quality, and quantity of surface and subsurface materials or obstacles to be
encountered insofar as this information is reasonably ascertainable from an
inspection of the site, including all exploratory work done by the Government,
as well as from the drawings and specifications made a part of this contract.
Any failure of the Contractor to take the actions described and acknowledged
in this paragraph will not relieve the Contractor from responsibility for
estimating properly the difficulty and cost of successfully performing the
work, or for proceeding to successfully perform the work without additional
expense to the Government.
(b) The Government assumes no responsibility for any conclusions or
interpretations made by the Contractor based on the information made
available by the Government. Nor does the Government assume responsibility
for any understanding reached or representation made concerning conditions
which can affect the work by any of its officers or agents before the execution
of this contract, unless that understanding or representation is expressly stated
in this contract.

10

CBCA 2482, 2653
Changes (AUG 1987)
(a) The Contracting Officer may, at any time, without notice to the sureties, if
any, by written order designated or indicated to be a change order, make
changes in the work within the general scope of the contract, including
changes—
(1) In the specifications (including drawings and designs);
(2) In the method or manner of performance of the work;
(3) In the Government-furnished facilities, equipment, materials,
services, or site; or
(4) Directing acceleration in the performance of the work.
(b) Any other written or oral order (which, as used in this paragraph (b),
includes direction, instruction, interpretation, or determination) from the
Contracting Officer that causes a change shall be treated as a change order
under this clause; provided, that the Contractor gives the Contracting Officer
written notice stating (1) the date, circumstances, and source of the order and
(2) that the Contractor regards the order as a change order.
(c) Except as provided in this clause, no order, statement, or conduct of the
Contracting Officer shall be treated as a change under this clause or entitle the
Contractor to an equitable adjustment.
(d) If any change under this clause causes an increase or decrease in the
Contractor’s cost of, or the time required for, the performance of any part of
the work under this contract, whether or not changed by any such order, the
Contracting Officer shall make an equitable adjustment and modify the
contract in writing. However, except for an adjustment based on defective
specifications, no adjustment for any change under paragraph (b) of this clause
shall be made for any costs incurred more than 20 days before the Contractor
gives written notice as required. In the case of defective specifications for
which the Government is responsible, the equitable adjustment shall include
any increased cost reasonably incurred by the Contractor in attempting to
comply with the defective specifications.
(e) The Contractor must assert its right to an adjustment under this clause
within 30 days after (1) receipt of a written change order under paragraph (a)
of this clause or (2) the furnishing of a written notice under paragraph (b) of
this clause, by submitting to the Contracting Officer a written statement
describing the general nature and amount of proposal, unless this period is
extended by the Government. The statement of proposal for adjustment may
be included in the notice under paragraph (b) above.
(f) No proposal by the Contractor for an equitable adjustment shall be allowed
if asserted after final payment under this contract.

11

CBCA 2482, 2653

12

The solicitation and contract also contained NRCS Aquisition Regulation (NRCSAR)
41-52.249-70, Time Extension for Unusually Severe Weather. Appeal File, Vol. 1 at 21-22.
Pre-Bid Conference and Site Visit
A pre-bid site visit occurred on July 19, 2005, with prospective bidders traveling on
an NRCS boat from Cocodrie, Louisiana, to the north or bay side of Raccoon Island. The
boat was unable to access the south side (Gulf side) of the island, due to rough seas, but did
visit the site where the groin would be built. While at the island, respondent’s COTR,
Mr. Garber, reviewed the contract work and drawings with the prospective bidders.
Representatives of Bertucci, Nolan Simoneaux and Steve Zelenka,13 were in attendance at
the site visit.14 Respondent’s Supp. Appeal File, Exhibit A at 4. No representatives from
Choctaw attended this pre-bid site visit.
During the site visit, prospective bidders suggested that respondent increase the
114-day performance time allowed for completing the project work. Respondent
reconsidered the performance time, decreased the anticipated rock placement production rate
from 1000 tons per day to 500 tons, included additional anticipated weather days, and issued
amendment no. 3 to the solicitation, which increased the performance time to 193 calendar
days. Amendment no. 3 also amended the severe weather clause–Time Extensions for
Unusually Severe Weather–by adding severe weather days for January (seven days), February
(four days), and March (two days); removed the Gulf side construction limits for the
breakwaters, and clarified that the breakwaters were not considered “on the island.”15 Appeal
File, Vol. 1 at 109. Thus, the duration of the contract was extended to approximately 6.5
months and the contract indicated anticipated performance during the winter.
13

These individuals did not testify at the hearing.

14

With regard to this initial site visit, appellant’s expert witness, Mr. Connole, states
in his report: “According to the Bertucci representatives, nothing unusual or contrary to the
plans were noted.” Appellant’s Supp. Appeal File, Vol. 6, Exhibit 94 at 2948.
15

Special provision 9 of the solicitation specified that “No construction activities on
Raccoon Island shall be performed between March 1 and August 31.” Appeal File, Vol. 1
at 31. Respondent explains that the Louisiana Department of Fish and Wildlife prohibited
construction activities “on the island” during this period, which was the brown pelican
nesting season. The construction of the groin, which was to connect to the island, would be
considered “on the island,” but the breakwaters were not. Respondent’s Pre-Hearing Brief
at 4. Mr. Zelenka testified that this did not hinder construction of the groin. Transcript, Vol.
2 at 23.

CBCA 2482, 2653

13

At some point, for the benefit of bidders, Mr. Garber painted “10+84 ” in orange paint
on a rock situated in breakwater zero. Transcript, Vol. 4 at 215. Mr. Zelenka does not recall
seeing it during the site visit. Id., Vol. 1 at 193, 284. Mr. Ford did not mention that he ever
saw it.
On July 25, 2005, Bertucci representatives Mr. Zelenka and Nolan Simoneaux and
Choctaw representatives Greg Ford and Jamey Sanders16 performed a site visit to Raccoon
Island, including an investigation of the navigation route to the jobsite for delivery of
materials, and ascertained the water depth conditions at the site. During this site visit,
Mr. Ford checked water depths with a “fish finder.” He testified during the hearing that the
use of such equipment to check water depths was “fairly accurate to the point that it would
provide us with enough information so that we could determine how to proceed with bidding
on the job.” Transcript, Vol. 2 at 227. Mr. Ford said that “we pulled up to breakwater Zero
and just sounded right there off of the end of breakwater Zero where it ties in.” Id. at 231.
Mr. Connole testified that the site inspection was reasonable, but does not mention the use
of a depth-finding instrument by Mr. Ford and Mr. Zelenka. Id., Vol. 3 at 231.
Mr. Zelenka testified that Bertucci’s bid was based on his site survey. Transcript, Vol.
1 at 317. He testified further that a fathometer17 was used intermittently to test water depths
near breakwater zero, the terminal end of the groin to be built, but qualified his statement by
asserting that “unless you do a full blown survey, which will cost tens of thousands of
dollars, you can’t find anything you need to find.” Id. at 192. Even though Mr. Zelenka
appeared to discount the result of his site survey during the hearing, he had previously
described his site visit as follows:
The contract plans and specifications were consistent with our prior work
experience at Raccoon Island in 1997, and our joint pre-bid survey and site
assessment in July and August, 2005, which included discussions with local
shrimpers and crewboat operators. . . . The contract showed, and our site visit
confirmed, that water depths permitted access to the eastern half of the groin
by fully-loaded rock barges and pushboats. [18]
16

Mr. Sanders, who authored most of the correspondence to the contracting officer
during contract performance, did not testify during the hearing.
17

It appears that Mr. Ford’s “fish finder” was Mr. Zelenka’s fathometer, used to
check water depths and find objects underwater by use of sound waves.
18

Mr. Zelenka confirmed that his bid was based on the site survey. Transcript, Vol. 1
at 316. Appellant’s expert, Mr. Connole, states in his report: “Again, none of them observed

CBCA 2482, 2653

14

Appeal File, Vol. 1 at 292-93 (Letter from Mr. Zelenka to Mr. Ford (Jan. 29,
2010))(emphasis added)
Mr. Zelenka also testified during the hearing that in his experience water depths vary
depending on the season when performing work near barrier islands, with shallower water
in winter and deeper water in summer. It was more difficult to perform in winter as the result
of the shallower depths in that season. Transcript, Vol. 1 at 168, 222.
Appellant’s Bid
On August 3, 2005, appellant submitted a bid of $4,056,032.50, including the work
of Choctaw and Bertucci, in response to the solicitation. According to Mr. Zelenka,
appellant planned to complete the contract work in 105 calendar days. The last threehundred-fifty to four-hundred feet of the groin would be the most productive work, as it was
in deeper water. Transcript, Vol. 1 at 184. This portion would be critical to build, in order
to be able to then stage barges behind the groin. Id. at 188. Mr. Zelenka used historical data
from Bertucci’s performance of the previous contract in 1997 to calculate Bertucci’s portion
of the bid. Id. at 221. Mr. Ford worked with Mr. Zelenka with regard to Choctaw’s portion
of the bid. Mr. Zelenka told Mr. Ford about Bertucci’s experience in 1997 and that existing
breakwater zero, which Bertucci had built in 1997, had deep water near it to make it easier
to work there. Id., Vol. 2 at 123-124.
As more fully explained herein, according to the testimony of Mr. Ford and
Mr. Zelenka, appellant’s bid and planned means and method of operation were based on their
pre-bid interpretation of the solicitation–taking into consideration the length of the groin to
be constructed, indicated as 1084 feet, and the water depths surrounding the site of the
groin–that the construction of the groin would result in a “protected onsite staging area” that
would have allowed appellant to fleet a number of barges north of the groin after it was built,
to stockpile stone to be used in the construction of the breakwaters. Mr. Ford and
Mr. Zelenka differed as to the number of barges they expected to fleet behind the groin, and
Mr. Zelenka’s experience was that he would not know for certain if barges could be fleeted
behind the groin until his work force arrived at the project site. Appellant’s expert,
Mr. Connole, premised his determination of entitlement to costs and quantum calculation on
his opinion with regard to an issue of law–that appellant’s interpretation of the solicitation
as indicating a “protected onsite staging area” for barges was reasonable.

any discrepancies between the site conditions visible to them and the plans and
specifications.” Appellant’s Supp. Appeal File, Exhibit 94 at 2948.

CBCA 2482, 2653

15

Contract Award, Hurricanes in the Gulf, and Respondent’s Survey
On August 29, 2005, shortly after bid opening, the Louisiana coast was struck by
Hurricane Katrina.
On September 9, 2005, contract AG-7217-C-05-0015 (the contract) was awarded to
Choctaw. Appeal File, Vol. 1 at 116.
On September 24, 2005, Hurricane Rita struck the Louisiana coast. After Hurricane
Rita, respondent sent a survey crew to the project site to investigate site conditions.
Respondent then considered, based on this survey, whether to proceed with the project.
Respondent ultimately decided to issue certain modifications to the contract that had already
been awarded and proceed with construction.19 Appeal File, Vol. 1 at 465-66. Hurricane
Wilma formed on October 15, 2005, and dissipated on October 24, 2005, after entering the
Gulf of Mexico and making landfall on the west coast of Florida.
As the notice to proceed with the contract work had not been issued, appellant
submitted a proposed construction schedule executed by Mr. Sanders, dated October 28,
2005, showing an anticipated start date for contract work on December 1, 2005, and
proceeding through the winter months of January, February, and March 2006. Appeal File,
Vol. 1 at 463.20
Respondent conducted a preconstruction meeting on November 9, 2005, attended by
representatives of Choctaw and Betrucci. No mention was made of possible changes to the
contract as the result of respondent’s recent survey of the site after Hurricane Rita.
Respondent had not issued the notice to proceed at this point, as apparently it was still in the
process of finalizing modification 1, which was issued a month later.
19

Appellant alleges that respondent considered terminating the contract for
convenience and resoliciting for bids based on the survey after the hurricane. Appellant’s
Pre-Hearing Brief at 4 (citing Appellant’s Supp. Appeal File, Vol. 1, Exhibit 29). While the
documents cited contain questions as to how to proceed with the contract after re-surveying
the project site, we do not find evidence in the record that respondent considered terminating
the contract for convenience and resoliciting. In any event, the allegation, even if true, is not
material. The contract was not terminated for convenience; instead, modification 1 was
issued.
20

Bertucci’s cost proposal for modification 1, dated January 29, 2010, states: “We
did not anticipate commencing work in January. The typical work season for this type
project is June-November.” Appeal File, Vol. 1 at 296.

CBCA 2482, 2653

16

Modification 1
On December 12, 2005, the contracting officer issued to Choctaw via email a written
change order, referred to as modification 1.21 The email message read in pertinent part:
Through this email I am requesting a price proposal for the following changes
to subject contract:
(1)
Change in the work sequence. Special Provision #2 is changed to have
work begin on the groin and then on the breakwaters beginning with
Breakwater #8 and moving west towards Breakwater #15.[22]
(2)
Alignment changes to groin and changes to breakwaters. Sheets 1 thru
5 and 10 thru 15 are revised to change the alignment of the groin and changes
to breakwaters due to water bottom changes as a result of the hurricane.
Additional quantities of riprap and geotextile is required for both the groin and
segmented breakwaters.
The changes are included in the attached drawings and special provision,
which will be modified into the contract. Due to the changes referenced
above, the government estimates the quantities of CLIN 0004 — Rock Riprap
and 0005 — Geotextile will increase by 7,500 tons and 4,920 square yards,
respectively.[23] Request you provide pricing for the increased quantities.
Also request you provide time requirements for the additional quantities. The
government estimates that an additional 15 calendar days of performance time
will be needed to complete the additional quantities.
Appeal File, Vol. 1 at 118; Appellant’s Supp. Appeal File, Vol. 1, Exhibit 35.

21

Correspondence and other documentation in the record at times refers to
modification 1 as change order 1.
22

This mandatory change in sequence should have had no impact, as Mr. Zelenka
testified that appellant always had planned to begin work on the groin first. Transcript,
Vol. 2 at 44.
23

As stated elsewhere in this decision, the quantity of riprap decreased rather than
increased.

CBCA 2482, 2653

17

Modification 1 also changed the geographic limits within which work could be
performed on the project site.24
Drawing sheet 5M of 19 in modification 1 clearly indicated that the groin’s length was
decreased from 1084 feet to 926 feet, with coordinates changed for the position of the groin.
Appeal File, Vol. 1 at 125. The modification contained revised drawings containing the same
language on the cross-section views for the breakwaters and the groin as contained in the
original solicitation that “[b]ottom elevations may change due to the dynamics of the
environment.” The revised cross-sections noted that “X-sections derived from survey taken
in Oct. of 2005.”25 Id., Vol 1. at 125-33.
Special provision 2 of the contract was modified by adding the following sentence:
The Contractor shall begin work on the groin as the first item to be prosecuted
in the contract. The breakwaters shall be constructed starting with breakwater
8 and proceeding west with breakwater 15 completed last. The groin and
breakwaters may be worked on concurrently.
Appeal File, Vol. 1 at 119.
The Changes In Modification 1 Were Not the Result of the Hurricane
During the hearing, respondent’s witnesses testified that the changes in modification
1 were made because the survey of Raccoon Island conducted after Hurricane Rita found
errors in the original solicitation. This was contrary to the statements 1) in modification 1
that the changes were “the result of the hurricane” and 2) in the contracting officer’s decision
denying appellant’s certified claim, that the changes were “due to the effects that Hurricane
Rita and other natural occurring events had on the topography of Raccoon Island.” Appeal
File, Vol. 1 at 458-59.
Respondent’s contracting officer, Mr. Broome, admitted that the changes addressed
in modification 1 were not caused by the hurricane, however. Transcript, Vol. 4 at 120.
Specifically, he stated that the length and size of the groin were changed to correct errors in
24

Mr. Zelenka testified that the restricted work limits impacted appellant’s ability to
fleet barges north of the groin. Transcript, Vol. 1 at 216. Mr. Connole’s report also
addressed this issue. Appellant’s Supp. Appeal File, Vol. 6, Exhibit 94.
25

Mr. Ford acknowledged that he and Mr. Zelenka had seen this note when they had
reviewed modification 1. They did not ask for the surveys then. Transcript Vol. 2 at 225.

CBCA 2482, 2653

18

the original solicitation–“wrong coordinates” and the correction of these errors resulted in
a reduction of the length of the groin from 1084 feet shown in the solicitation to 926 feet in
modification 1. Id. at 110-11. He also stated that the drawing sheet 5 of 19 of the original
solicitation had shown incorrect bathymetric contours–deeper water depths than those
actually at the site. In particular, these contours were wrong because they failed to show a
shallow area, a sandbar, that the appellant encountered when construction began on the
eastern portion of the groin.26 Mr. Broome also stated his belief that this shallow area
“directly impacted the contractor’s means and methods of performance.” Id. at 112-14. He
was not specific as to the exact nature of the impact or how this might have resulted in
entitlement to additional compensation to appellant. He also offered no explanation why
modification 1 or his final decision stated that the changes in modification 1 were the result
of the hurricane.
Respondent’s construction engineer for the State of Louisiana, Mr. Sticker, confirmed
that the coordinates for the groin in the original solicitation were in error, and the error was
not caused by the hurricane, although the error may not have been discovered but for the
occurrence of the hurricane that caused respondent to perform a site review. Transcript, Vol.
4 at 148-49. He also confirmed that the contours on sheet 5 of 19 were not correct. Id. at
177. He expressed his belief that the groin was represented clearly in the plans, because the
plans showed the groin was to be built from the island to a physical landmark–the northeast
end of the crown at breakwater zero. Since neither the island nor breakwater zero moved as
the result of the hurricane, the groin was always clearly represented, despite the incorrect
length shown on the solicitation drawings. Id. at 148-49.
Mr. Garber, the COTR, testified as to the various surveys performed at the project site
before construction for design purposes. Transcript, Vol. 4 at 178. He became aware of the
error of the coordinates for the groin in November 2005 after the survey was conducted at
the project site prompted by the hurricanes. Id. at 187.
Mr. Edmund Geiring III, the state engineer for the NRCS during the contract period,
involved in design and construction, testified that the depths under the groin on the
solicitation drawings came from a survey performed in February 2005. Transcript, Vol. 5,
at 24. He was not aware of this at the time of bid. The depths shown north and south of the

26

This sandbar was designated as a ridge or hump at approximately station 8+50 on
the revised drawing for modification 1. Appellant’s Supp. Appeal File, Vol. 6, Exhibit 94
at 2956. We will refer to this sandbar in this decision as the sandbar-hump. Mr. Ford stated
that the sandbar-hump was not obvious on the plans, and he would not have noticed it during
his review of the solicitation and modification 1. Transcript, Vol. 2 at 226.

CBCA 2482, 2653

19

groin appeared to have come from this same file, as the contours extend to the edge of the
drawing. Id. at 24-28. He did not believe that the changes in modification 1 were major
changes, as the rock quantity was reduced by 7500 tons, a 15% reduction. Also, while he
acknowledged an error in the coordinates of the groin, which incorrectly indicated its length
in the original solicitation, the groin had always been intended to be built from the island to
breakwater zero, which were both existing physical landmarks. Id. at 31.
Notice to Proceed
On December 12, 2005, the same day that respondent issued modification 1,
respondent also issued the notice to proceed with the project. Appellant asserts it anticipated
that a notice to proceed would have been issued shortly after contract award in September
2005, which would have allowed the work to be completed by December 2005,27 within what
Choctaw considered to be the normal seasonal time period for performing work of this
nature. It therefore considers the allegedly delayed notice to proceed in mid-December to
have been a directive to commence work in the winter season, when weather and sea
conditions are typically unfavorable for marine operations.28 Complaint ¶ 7.
Respondent’s contracting officer’s final decision states that the three weather
disturbances that occurred in the Gulf of Mexico after bid opening (Hurricanes Katrina, Rita,
and Wilma) delayed issuance of the notice to proceed. Appeal File, Vol. 1 at 459.
It appears that respondent issued the notice to proceed in December 2005 to allow
work to begin on the groin outside the nesting season for the brown pelican, as such work
was restricted from March 1 through August 31. Thus, appellant was directed to start in
winter and was precluded from working on the groin as of March 1, 2006.

27

This assertion is apparently based upon the original 114 calendar days of contract
performance before the contract period was extended to 193 calendar days.
28

Mr. Zelenka testified during the hearing that late spring to late fall was the best
time to perform the work. Work could be performed during hurricane season, as long as
precautions were taken. Winter was the most adverse time to perform work around barrier
islands. Transcript, Vol. 1 at 165. He compared actual weather reports from September and
October 2005 to January 2006 to show the difference in weather conditions for those months.
Id. at 235-39. He testified at length concerning pictures of performance but did not identify
the time frame for the pictures. Id. at 240-50.

CBCA 2482, 2653

20

Mobilization and Initial Performance–December 2005 to February 2006
Mr. Zelenka testified that upon receipt of the notice to proceed, appellant mobilized
and began marshalling the barges, producing the rock, collecting empty barges and sending
them up to the quarry to get them in position for loading, speaking to the suppliers, and
preparing to buy or rent equipment and purchase materials. All of this was done with the
realization that it would be more difficult to commence and perform work during the winter
season. Transcript, Vol. 1 at 210-11. Mr. Ford also confirmed the beginning of contract
performance upon receipt of the notice to proceed. Id., Vol 2 at 145. He explained the
extensive up-front costs for the project, including purchasing of rock, and the need for
quickly mobilizing as it takes significant time for the rock to arrive at the project site. Id. at
190.
While the contracting officer had requested a price proposal with regard to the
changes in modification 1, appellant did not submit a price proposal before beginning
performance, nor did it do so during the entire period of contract performance. Mr. Zelenka
testified that the proper procedure would have been to negotiate a change order before
performance began, but appellant has “never priced the original change order.” Transcript,
Vol. 2 at 94. No explanation was offered as to why appellant did not submit a price proposal
with regard to the changes clearly indicated in modification 1 or raise the issue that the groin
had been shortened before performance commenced, despite testimony from both Mr. Ford
and Mr. Zelenka that the initial bid would have been greater if Choctaw and Bertucci had had
the information in modification 1.
Even though Bertucci stated in its letter dated January 29, 2010 (Appeal File, Vol. 1
at 292-93) that the site investigation confirmed “that water depths permitted access to the
eastern half of the groin by fully-loaded rock barges and pushboats,” Choctaw and Bertucci
allege that upon mobilization they discovered previously provided access channels to the
groin and breakwaters were blocked to fully loaded barge traffic, as the access channel which
they assert was represented in the contract as nine feet to eleven feet deep was actually only
two to five feet deep or less.
As both the solicitation and modification 1 drawings had indicated, appellant found
that water depths at the project site near the groin and the access channels were not static, but
were changing from day to day, as a result of the dynamic environment. Areas filled in with
sediment as construction proceeded. Areas that had been accessible one day were not
accessible the next. When Mr. Zelenka was questioned as to the filling in of the access
channels, he acknowledged the dynamic nature of the environment and the changing water
depths, stating: “The dynamics are different everywhere. Some places got deeper, some
places got shallower.” Transcript, Vol. 2 at 37-38.

CBCA 2482, 2653

21

Mr. Zelenka confirmed that there could be no protection from a constructed groin or
breakwater until those structures were built. Transcript, Vol. 2 at 33. When shown an aerial
photograph of a completed breakwater at the project site, Mr. Zelenka noted that the
photograph showed sand that had built up behind the breakwater after construction. Id., Vol.
1 at 160.
Mr. Zelenka emphasized that the two main issues were differing site conditions and
access to the groin. Transcript, Vol. 2 at 87. Even though modification 1 clearly indicated
that the length of the groin was changed from that shown in the solicitation, Mr. Zelenka
testified that he did not realize that the groin had been shortened until his personnel arrived
at the project site in January 2005 and performed a survey. Transcript, Vol. 1 at 233-34. He
stated, in response to the Board’s inquiry as to when he realized the groin was too short to
protect the barges: “When you start trying to get barges in there. That’s very common. We
put a plan together but until you get your barges there and see it, you don’t really understand
it.” Id., Vol. 2 at 43.
The dynamic environment at the project site was documented by Choctaw, Bertucci,
and respondent. It is clear that the water depths were changing during contract performance
as areas that were accessible at first became unaccessible within a short period of time.
According to the quality control report for Bertucci and Choctaw dated January 19, 2006, the
captain of one of their barges spoke with local crew boat captains who stated that Hurricane
Rita had “flattened deep water areas.” Appeal File, Vol. 2, Choctaw Quality Control Report
(Jan. 19, 2006); Transcript, Vol. 1 at 302.
According to the NRCS job diary, on January 25, 2006, Greg Ford of Choctaw stated:
“[A]ccess on plan area has fill[ed] in since job was bidded [sic] and this is a differing site
condition.” Appeal File, Vol. 4, Exhibit “NRCS Job Diaries” (Jan. 25, 2006).
Mr. Hebert, an NRCS inspector on the contract, testified that appellant performed a
survey in the area of the groin on January 23, 2006, and found that the water depths were
within a foot of those shown on the drawings upon which Choctaw and Bertucci based their
bid. He stated that no one mentioned to him appellant’s plan to moor or anchor barges north
of the groin. He also testified that on January 25, 2006, he was on site and Mr. Ford stated
that access to the site had filled in since bid and that it was a “different site condition.”
Transcript, Vol. 5 at 37-39.
Mr. Ford testified that the intention was to begin to build the eastern end of the groin.
When they arrived on site, they found water depths shallower than depicted on the plans and
also ran into the sandbar-hump. Performance was constantly impacted by not being able to

CBCA 2482, 2653

22

proceed concurrently on the groin and the breakwaters without the expected protection of the
groin once it was completed. Transcript, Vol. 2 at 149.
During the night of January 28, 2006, and morning of the next day, a storm hit the
project site and Betucci’s AB-4 barge partially sank, allegedly as the result of wave action
causing a spud to break loose and with resulting damage to the barge. Appeal File, Vol. 2,
Choctaw Quality Control Report (Jan. 29, 2006).29
The water depths continued to shallow. Choctaw’s daily inspection report dated
February 14, 2006, states:
Moved the 218 rig to Raccoon Island this date to try and access the East Groin
to begin work. Ran into extremely shallow water in the same areas that the
AB-4 [barge] had made just 2 weeks earlier. Paddled around both the east and
west sides of the groin and still could not access the groin with the crane rig
even with [sic] though we only draw 4’ of water.
Respondent’s Supp. Appeal File, Vol. 2, Exhibit NN at 2188 (emphasis added).
Similarly, Bertucci’s field notes dated February 14, 2006 (attached to Choctaw’s
report of the same date), states:
[S]o all this area is filling in so now I don’t know what to do because all of
this we have before assessing is now build up and cannot get the spud barge
in and Delta Falcon is coming with the lite partial so now I have to change
thinking and now Delta Falcon that pass through before cannot now.

29

Bertucci seeks $64,938, the uninsured deductible that Bertucci paid for damage to
the Barge AB-4. In its supporting documentation, Bertucci states that “ [t]he loss of
access/water depth caused the Spud Barge AB-4 to sink on January 29, 2006.” Appeal File,
Vol. 1 at 339. The barge had been on site and the documentation shows that the water depths
were changing due to the dynamic environment as indicated in the solicitation and the
contract. While appellant’s witnesses did testify that the barge had been damaged and sunk,
the barge was under the control of appellant’s employee’s, and Bertucci apparently recovered
costs from its insurance company but not its uninsured deductible. There is no evidence that
the Government caused the damage to the barge.

CBCA 2482, 2653

23

Respondent’s Supp. Appeal File, Vol. 2, Exhibit NN at 2189 (emphasis added).30
Choctaw’s daily inspection report dated February 20, 2006 states: “Gathered
information for meeting on Wednesday [February 22, 2006], surveys and what not. . . . Ran
more surveys on the east groin and access channels and found them all to be filling in.”
Respondent’s Supp. Appeal File, Vol. 2, Exhibit NN at 2194 (emphasis added).
Appellant states in its claim that it anticipated receiving the notice to proceed shortly
after contract award, and did not anticipate commencing work in January, as the typical work
season for this type of work is June-November. Appeal File, Vol. 1 at 296. According to
appellant, marine conditions at the commencement of the work were hazardous, and
Bertucci’s equipment31 was severely damaged while complying with the Government’s
directive to commence work during the winter. Choctaw and Bertucci continued with their
efforts to work until being forced to abandon the jobsite for safety reasons on February 22,
2006. Appellant alleges that “virtually no productive work was accomplished during January
and February 2006 due to access issues and winter season conditions.” Complaint ¶ 8.
Mr. Zelenka confirmed this during the hearing, stating that had they realized the dimensions
of the groin they would not have tried to work in the winter. Transcript, Vol. 1 at 233-34.
Mr. Zelenka testified as to the difficulties of performing during this period by
referring to photographs of job performance. Transcript, Vol. 1 at 225-30. He stated that
appellant only performed rock placement on the breakwaters for four days during this entire
period, although the entire period was devoted to attempting to perform the work. Id., Vol. 2
at 58-59. Mr. Ford confirmed that no productive work was accomplished during this period,
as two percent of the work had been accomplished in fifty-three percent of the contract time.
Id. at 157-58. He states that this occurred “because we got out there behind the groin and we
found that the change of conditions that we experienced didn’t allow us to stage barges
behind there, therefore allowing us not to do any productive work.” Id. at 157.32
A meeting was held on February 22, 2006, to discuss performance difficulties.
According to respondent’s job log, “Jamey Sanders with Choctaw stated weather conditions
and different site conditions at the groin area has [sic] delayed them.” This meeting was
30

Despite the continued changes in water depths, Mr. Ford testified that accretion was
not an impediment to performance. Transcript, Vol. 5 at 45; Appellant’s Post-Trial Brief at
28.
31

An apparent reference to Barge AB-4.

32

The groin had not been built at this point in time.

CBCA 2482, 2653

24

further described by the contracting officer, in a subsequent letter dated March 17, 2006,
from the contracting officer to Mr. Sanders, in which the contracting officer stated in part:
In our meeting on February 22, 2006, you requested that the contract be
suspended due to unsafe conditions and other reasons. At the conclusion of
the meeting I asked for the request to be put in writing so the government
could review and determine whether to grant your request. To this date, I have
not received your written request. Because your request hasn’t been granted,
the contract performance time continues to run.
Appeal File, Vol. 1 at 530.
Not receiving a response, the contracting officer further described the meeting in a
follow-up letter to Mr. Sanders dated April 7, 2006, stating in part:
Performance time for the subject contract began on December 13, 2005. Onsite work began in late January. By mid-February all work had ceased. On
February 22, 2006 we met and you presented several reasons for not being able
to work, e.g., low tide, fog, rough seas, access problems due to sedimentation
and so forth. You requested that all work be suspended for a certain amount
of time due to poor site conditions. I asked that your request be submitted in
writing. You agreed. As of this date, I have not received anything from you
or heard from you again on this matter. . . . There has been no change to the
performance time or issuance of a suspension of work under this contract. The
original terms of the contract remain in effect.
Appeal File, Vol. 1 at 531 (emphasis added).
Mr. Sanders responded to the contracting officer by letter dated April 10, 2006,
describing the working conditions from the notice to proceed to February 22, 2006, when
work ceased. The letter stated in part:
A timely notice to proceed would have allowed this project to start during the
appropriate season for construction. However, a notice to proceed was
withheld for four months, until December 12, 2005. This resulted in a critical
delay to the commencement of the work given the available season for
construction.

CBCA 2482, 2653

25

Your notice to proceed identified changes to the work that you attributed to the
hurricane. The sequence of the work was changed to start the groin[33] and
then the breakwaters, beginning with Breakwater No. 8 and moving west.
Additional quantities of riprap and geotextile were added due to the site
changes which would indicate that the water bottom was deeper than
anticipated. At the preconstruction conference, we specifically asked whether
the site was as indicated, and we were advised that no significant changes had
occurred.
We proceed[ed] with work as directed. On our second day out, our light
loading rig got stuck in the sand fifteen miles from the job site. Based on our
prebid site visit, we expected to set up light loading rigs three miles from the
job site. Instead the closest we could get without encountering problems was
twenty miles. This change created serious problems. Together with the
difficult conditions of winter, especially fog, we could not accomplish any
productive work. We spent 38 days trying to work on the Groin and were able
to place only one barge of stone, about 1,300 tons. Also instead of a deeper
water bottom at the Groin, we found it filled with sand so that we could not get
close enough to place stone.
Appeal File, Vol. 1 at 532-33 (emphasis added).
Job Progress–February 23 to April 31, 2006
No work was performed between February 23 and April 31, 2006. Appellant was
granted a time extension by the contracting officer during this period for unsafe conditions.
By letter dated April 28, 2006, the contracting officer extended the contract performance for
sixty-six calendar days “due to weather and poor site conditions encountered.” Appeal File,
Vol. 1 at 536.
Job Progress–May 1, 2006 to June 11, 2006
By May 30, 2006, appellant had not recommenced work, and by letter dated May 30,
2006, to Mr. Sanders, the contracting officer stated:

33

As mentioned previously, Mr. Zelenka testified that appellant always intended to
build the groin first. Transcript, Vol. 2 at 44.

CBCA 2482, 2653

26

The government considers your failure to re-start work in a timely manner a
condition that has endangered timely completion of the contract. Unless this
condition is cured within ten (10) calendar days . . . the Government may
terminate [this contract] for default.
Appeal File, Vol. 1 at 538.
By letter dated June 6, 2006, Mr. Sanders replied:
Please reference your letter dated May 30, 2006. Please be advised that we
have already resumed work and are loading barges and mobilizing them to the
jobsite . . . . The basic problem is that the conditions at the job site did not
allow productive work during the winter months. Therefore we are entitled to
an extension of 71 calendar days for the period between the Notice to Proceed
through February 22, 2006.
Appeal File, Vol. 1 at 539-40 (emphasis added).
Job Progress–June 12, 2006 to September 15, 2006
Mr. Ford testified that when appellant returned in June 2006, it encountered a sandbar
and was not able to fleet barges behind the groin. Transcript, Vol. 2 at 159.34 There were
continuing difficulties with weather that damaged equipment and impacted the progress of
the work. Id. at 160-69.
Mr. Zelenka testified that a meeting was held with respondent on August 30, 2006,
with Mr. Ford in attendance to discuss two issues–access to the groin and change of
conditions around the groin area, the primary issues affecting performance. Transcript,
Vol. 1 at 254; Transcript, Vol. 2 at 87. Mr. Ford also testified about this meeting and
confirmed that these were the two primary issues. He recalled he had a phone call or a
meeting with Mr. Broome, who told him the hurricanes were the cause of the changing
depths behind the groin. Transcript, Vol. 2. at 173. There was no specific mention at this
time of the issue of length of the groin or inability to fleet barges behind the groin.

34

It is not clear at this point how much groin construction had taken place, nor is
there any confirmation at this date that the obstruction was the alleged sandbar-hump shown
in the contract drawings. A subsequent letter from Mr. Sanders dated September 27, 2006,
quoted herein, mentions that only one barge of stone had been placed before demobilization
the previous winter.

CBCA 2482, 2653

27

Appellant performed contract work from June 12 through November 11, 2006. As
discussed herein, it was the subsequent opinion of appellant’s expert, stated in his report
issued in 2014, that the contract work could and would have been commenced by appellant
on June 12, 2006, and should have been completed by September 15, 2006, had the
conditions been as represented in the original contract plans.35 Mr. Ford also stated his belief
that the work would have been completed in 2006 had conditions been as represented in the
solicitation. Transcript, Vol. 2 at 176.
Job Progress–September 16, 2006 t0 November 11, 2006
Appellant continued to pursue the work from September 16 until November 11, 2006,
when it demobilized due to rough seas and winter weather.
By letter dated September 19, 2006 to Mr. Sanders, the contracting officer advised
that the extended performance period for the contract had expired on September 13, 2006,
and again stated that appellant “may be in default.”
By letter dated September 27, 2006, Mr. Sanders stated:
You have requested that we provide you with facts supporting a time extension
on this project.
By letter dated April 10, 2006, we informed you that upon receipt of the Notice
to Proceed on December 12, 2005, conditions at the jobsite did not permit
work to proceed. We spent 38 days trying to work on the Groin at your
discretion [sic], but could place only one barge of stone. You eventually
recognized and agreed that it was neither safe nor appropriate to work in the
conditions we encountered, and allowed us to demobilize. . . . [W]e have
previously notified you that conditions at the jobsite were not as represented
in the contract plans. Please further note that during our last meeting, we
provided you with data, including cross-sections, demonstrating that
performance of the work in the Groin is materially different and will involve
substantial additional costs due to the changed conditions we have
experienced. Nevertheless, you have directed us to proceed with this work.
Appeal File, Vol. 1 at 543-44 (emphasis added). Mr. Sanders concluded his letter by stating:

35

It is not clear if this assumes that work on the groin could have been commenced
on June 12, 2006, as this was still within the brown pelican nesting season.

CBCA 2482, 2653

28

We will provide our proposal for additional costs once physical work is
completed.
Id. at 545 (emphasis added).
Job Progress–November 12, 2006 to June 30, 2007
During this period appellant was not working on the contract.
Job Progress-July 1, 2007 to September 17, 2007–Contract Completion
By letter dated July 19, 2007 to the contracting officer, Mr. Sanders stated:
Site conditions changed dramatically after the hurricanes of 2005 and continue
to change due to the volatility of the weather and the environment around the
jobsite.
Appeal File, Vol. 1 at 548 (emphasis added).
By letter dated July 22, 2007, to the contracting officer, Mr. Sanders again emphasized
the dynamic environment of the project site and stated:
Since site conditions can change very rapidly in the cross-sectional areas of
the groin, as mentioned in the last letter, the panels were ordered larger than
called for in the specifications to make absolutely sure that the geotextile
panels were not too small once in place.
Appeal File, Vol. 1 at 562.
Appellant completed performance of the contract in September 2007.
Cost Proposal for Modification 1
On February 11, 2010, approximately two and a half years after completion of the
contract work, appellant submitted a proposal for an equitable adjustment as a result of
modification 1, which included narratives and proposed costs for both Choctaw and Bertucci
in the amount of $4,144,191.20. Choctaw’s narrative stated in part:

CBCA 2482, 2653

29

Enclosed you will find our proposal for Change Order No. 1 reflecting a
change in topography, access to the work and other directed changes at the
start of our work.
Appeal File, Vol. 1 at 139.
Bertucci’s narrative stated in part:
The contract plans and specifications were consistent with our prior work
experience at Raccoon Island in 1997, and our joint pre-bid survey and site
assessment in July and August, 2005, which included discussions with local
shrimpers and crewboat operators. . . . The contract showed, and our site visit
confirmed, that water depths permitted access to the eastern half of the groin
by fully-loaded rock barges and pushboats. . . .
About half the groin would be built using material from fully-loaded barges.[36]
As the Groin began to take shape and rise above sea-level light loading of
barges was to occur with the Groin construction limits. By construction of the
east end of the Groin, the Groin would provide additional protection from the
Gulf seas and the light loading area would be in waters protected from the
Gulf of Mexico.[37] Light-loaded or partially loaded barges of rock would then
be moved by pushboat to the breakwaters or paddled to the west end of the
Groin for placement.
Appeal File, Vol. 1 at 292-94 (emphasis added).
On August 17, 2010, representatives of Choctaw, Bertucci, and respondent met to
attempt to resolve the modification 1 request for equitable adjustment. By letter dated
September 28, 2010, Choctaw confirmed the discussions at that meeting. The letter
contained a detailed explanation of the proposal for modification 1, addressing the following
subjects: 1) a change in the alignment of the groin, 2) the change in sea bottom elevations,
and 3) the change in the provided access. The letter read in pertinent part:

36

However, Mr. Zelenka testified that the bid was based on half-loaded barges rather
than fully-loaded barges, as there was an expectation that fully-loaded barges would not
access the project site. Transcript, Vol. 1 at 310.
37

This appears to be the first mention of the plan to fleet barges behind the groin.

CBCA 2482, 2653

30

1. The Change in the Alignment of the East Groin. . . . [T]he alignment of the
East Groin had shifted to the south due to Existing Breakwater #0 being
incorrectly located on the drawings. . . . Because Modification No. 1 changed
the location/alignment, the seaward (protected) end of the groin was reduced
in length by 122 feet; almost the length of one barge.[38] This part of the
project would have been our most productive work area. More importantly,
it was the key to accessing the new breakwaters. As explained in our meeting,
we planned on using the seaward end of the new groin as a fleeting area and
protection from the gulf seas. However, these benefits to our construction
effort were lost due to the change in the groin alignment and the groin’s
length. Instead of using the seaward end of the new groin as a fleeting area,
we were required by this change to fleet from Caillou Boca.
When the groin alignment change was made by Modification No. 1, the
construction limits and Government provided access channel were also
changed. The contract specified work area on the north side of the groin, our
construction limits, and the Government provided access channel to the south
were shifted by 130 feet. This shift drastically impacted our work and resulted
in increased costs of performance.
2. Change in Sea Bottom Elevations. Modification No. 1 also provided new
sea bottom elevations for the new alignment. These new elevations show a
hump or ridge at approximate Station 8+50. This ridge was not a result of the
weather.[39] It was an existing feature that was incorrectly depicted on the
contract drawings. . . . This change in elevation is made much worse because
the work limits were shifted when Modification No. 1 was issued, making
access with fully and even half loaded barges impossible.
3. Change in Contract Provided Access. The contract prohibited excavation
for flotation access to the work. However, on the east side of the Groin, the
contract furnished an access route 500 feet long and 100 feet wide for floating
barges into the East Groin work area. Our pre-bid site investigation confirmed
sufficient water depth for floating full barge loads to the site. However, once
we commenced work, the NRCS recognized the loss of this contract provided
access, and changed the contract to allow access to the East Groin through the
38

This appears to be the first mention of the reduction in length of the groin in the
record of the communication between appellant and respondent.
39

This appears to be the sandbar-hump.

CBCA 2482, 2653

31

no work limits between existing Breakwaters #1 and #0. Unlike the original
contract provided access, the area for the changed access was so shallow that
equipment had to be paddled to the groin for placement of stone.
Appeal File, Vol. 1 at 511-12.
Certified Claim and Contracting Officer Final Decision
After attempts to resolve the proposal did not result in a resolution, appellant
submitted a claim dated January 10, 2011, certified pursuant to the Contract Disputes Act in
the amount of the previous cost proposal–$4,144,191.20.40 The contracting officer issued
a final decision dated April 15, 2011, denying the claim in its entirety, stating in part that the
changes to the contract as the result of modification 1 were “minor” and necessary because
of natural occurrences, including the hurricanes that entered the Gulf. The decision also
stated:
While it is true that the drawings may not have correctly depicted correct water
depths for some of the groin construction area, these inconsistencies are not
believed to [have] affected your work. The fact that you visited the site and
took soundings of the area before submitting your bid indicates you relied on
the conditions found during your site visit and not the conditions represented
on the drawings.
Appeal File, Vol. 1 at 459.
Appellant appealed the final decision to this Board, and the appeal was docketed as
CBCA 2482.
Appellant’s Testimony Concerning the Impact of Modification 1
The focus of appellant’s witnesses’ testimony during the hearing was the impact of
modification 1 on the performance of the contract and alleged extra costs incurred as a result.

40

The certified claim contained the narratives from Choctaw and Bertucci previously
submitted on February 11, 2010, with supporting cost documentation. Bertucci’s portion of
the claim is $2,150,172.51. Mr. Zelenka testified at the hearing concerning the preparation
of the claim and the cost records in support. Transcript, Vol. 1 at 266-70.

CBCA 2482, 2653

32

Appellant’s fact witnesses testified as to their interpretation of the solicitation, the pre-bid
site visits, bid preparation, expectations as to means and methods of operations, and
difficulties of performing the contract work.
According to appellant, the changes to the contract made by modification 1 were not
minor as alleged by the contracting officer in his final decision denying the certified claim,
as Modification 1 shortened the length and reduced the size of the groin41; required the
construction of the groin first, but concurrently with the breakwaters; reduced the specified
work limits north of the groin; and provided new bathymetric contours showing shallower
water conditions than those shown on the solicitation. Appellant’s Post-Trial Brief at 7-8.
The major impact that appellant alleges is that modification 1 changed its planned
means and methods of operations, in that appellant based its bid on information in the
original solicitation that indicated that the groin would be 1084 feet in length, and with the
water depths indicated in the solicitation drawings, such conditions would allow a number
of barges42 loaded with riprap to be fleeted to the north of the groin as it took shape,

41

According to appellant’s expert, appellant calculated the groin would receive 22,298
tons of rock. Modification 1 altered the alignment and dimensions of the groin and
eliminated 122 feet of the seaward end of the structure. The quantity of stone was reduced
from the original estimate of 22,298 tons to an actual quantity of 13,495 tons. This change
eliminated the deep water that appellant had planned to use for staging barges behind the
groin, and prevented appellant from placing rock at the groin on the days where weather
prevented placement at the breakwaters. Appellant’s Supp. Appeal File, Exhibit 94 at 2940.
Mr. Zelenka also testified with regard to the alleged elimination of the deep water.
Transcript, Vol. 2 at 54.
42

Mr. Zelenka initially testified during the hearing that the plan was to build the groin
and fleet four to six barges behind it. He testified at length concerning the planned method
of operations, using a staging area behind the groin as a base of operations, allowing work
to be performed concurrently between the end of the groin, the breakwaters and the tie-in of
the groin to the island. Transcript, Vol. 1 at 198-205. He stated that the shortening of the
groin impacted the work in that “it shortened the distance of the deep water work; the amount
of deep water work that we had and it shortened that distance that we could put the barges
behind and use as an area to stage from; from roughly 370 to 400 feet, which the barges are
195 feet long, to 150 or 160 feet, which leaves [the barges] exposed.” Id. at 214. It therefore
took longer to build the breakwaters, without having a staging area behind the groin for
barges. Id. at 219-20.

CBCA 2482, 2653

33

protected from the wave action of the Gulf.43 This would allow a constant stockpile of riprip
in close proximity to the project site that could be used to construct the breakwaters, allowing
riprap to be available at all times even if access across the Gulf was not available due to
weather. According to appellant’s witnesses, modification 1 shortened the length of the
groin and impacted their ability to fleet barges. Transcript, Vol. 2 at 44 (Mr. Zelenka), 12935, 179. (Mr. Ford). Appellant’s CAD expert, Mr. McCoy, testified that the shortening of
the groin would only allow two barges to be staged behind the groin, with a portion of the
length of the barges exposed to open water from the Gulf. Id., Vol. 1 at 65-66.
Appellant alleges that the water depths were not as indicated in the original
solicitation, and the actual conditions at the site were too shallow to allow fully loaded barges
to gain access to the site or remain behind the groin, resulting in having to constantly “light
load” the barges. Mr. Zelenka summarized this impact, stating that under the original
solicitation, while the plans did not “state specifically” that this was an area to fleet barges,
he identified what he believed was an area with adequate access in depth so that half-loaded
barges could be transported to and floated along the groin from station 7+15 to 10+84 and
that this was consistent with his site inspection. Transcript, Vol. 1 at 261; id., Vol. 2 at 8889. Mr. Ford and Mr. Zelenka both testified that a more accurate description of the groin
would have resulted in a higher bid, but neither offered any calculation or estimate of what
that higher bid might have been. Id. at 140 (Mr. Ford); Id., Vol. 1 at 264 (Mr. Zelenka stated
that the bid would have been “a lot higher.”). Mr. Zelenka believed that if the plans and
specifications had accurately reflected the depths behind the groin, there would never have
been a claim. Id., Vol. 2 at 93. Neither witness offered any explanation why a cost proposal
for modification 1 was not submitted by appellant when the modification was issued, as the
changes, including the change in the length of the groin, were clearly indicated in the
modification.
There is no evidence in the record contemporaneous with the performance of the
contract that specifically indicates appellant’s intended means and methods of operations.44
43

Mr. Ford testified that the plan was to fleet six or eight barges behind the groin.
He explained in detail about the alleged impact of an “unprotected fleeting area” for the
barges. Transcript, Vol. 2 at 151-153. It was Bertucci, not Choctaw, that performed the
actual placement of the rock from barges at the project site.
44

Appellant refers to an email message dated November 15, 2005, from Bertucci to
Choctaw that states that work would begin on the seaward end of the groin, Appellant. Supp.
Appeal File, Exhibit 33 at 1014, but it does not specifically mention means and methods of
operation. Appellant asserts that “except for this email, the record contains no
documentation as to the means and methods of performance, nor should it.” Appellant’s
Post-Hearing Reply Brief at 3.

CBCA 2482, 2653

34

Appellant’s CAD Expert’s Testimony as to Water Depths Represented in the Solicitation and
Modification 1
During the hearing, appellant offered testimony from Mr. McCoy, the CAD
consultant, who analyzed respondent’s sets of survey data allegedly used to prepare the
solicitation and modification 1. Mr. McCoy had no personal knowledge of contract
performance; he was hired during the claim preparation process. He came to various
conclusions as to the differences in the information in the solicitation and modification 1 by
importing data received from respondent into his CAD program and reviewing the generated
output.
With reference to drawing sheet 5 of 19 of the solicitation, Mr. McCoy explained in
general how contour lines indicate water depths and underwater features. Transcript, Vol.
1 at 21. Mr. McCoy was given the data which he believed was used to generate solicitation
drawings and imported this data into his CAD program in an attempt to recreate the
information on the solicitation drawings. He was not able to recreate solicitation drawing
sheet 5 of 19 from the data NRCS allegedly used to create it and concluded by the result of
the program that the data would not have generated sheet 5 of 19 as given to the potential
bidders. Transcript, Vol. 1 at 22-29, 38; McCoy Report, Appellant Supp. Appeal File, Vol. 5,
Exhibit 93. That data, Mr. McCoy concluded, would have created a drawing “wildly
different” from that given to the bidders. Transcript, Vol. 1 at 43. From the pre-bid data,
Mr. McCoy also analyzed the pre-bid conditions that existed at the corrected location of the
groin as shown in modification 1 and concluded that there was an underwater hill or hump
at that location not shown to bidders in the solicitation drawings, but indicated in the data.
Id. at 50.
Mr. McCoy performed the same analysis on the respondent’s survey data allegedly
used to prepare modification 1. He found that the survey data did generate the drawings in
modification 1, which showed the underwater hill or hump. Transcript, Vol. 1 at 51-53.
Mr. McCoy also concluded that from the information given to the contractor pre-bid,
the contractor had sufficient area and depth behind the groin to fleet eight barges after the
groin was built, but after modification 1 was issued there was not sufficient area to do so.
This analysis was based solely on Mr. McCoy’s knowledge of CAD, as he had no actual
knowledge of the performance of the contract work by appellant. Transcript, Vol. 1 at 64.
With regard to drawing Sheet 5 of 19 of the solicitation, Mr. McCoy stated his opinion
that the drawing was altered to indicate information different from what the survey data
should have generated. He believes a draftsman manually altered the information, so as not
to show the actual elevations and contours that existed in both sheet 5 of 19 and the cross-

CBCA 2482, 2653

35

sections of the groin, and to incorrectly show the length of the groin as 1084 feet. Transcript,
Vol. 1 at 70-74.
Mr. McCoy’s conclusions were that:
1) The solicitation contained inaccurate information as to the underwater
topography and “misrepresented the actual water depths within the
construction work limits of the job. And in particular where the existing tie-in
area at breakwater number zero”;
2) The survey data collected by the NRCS prior to the release of the plans and
specifications for bidding do not match the bathymetric data represented in the
plans and specifications provided to contractors for bidding purposes;
3) Sheet 5 of 19 is a critical representation of the bathymetric conditions
surrounding the groin location directed in the original contract. The sheet
contains numerous errors in addition to the incorrect bathymetric data;
4) The most current survey data obtained by the NRCS prior to the release of
the plans and specifications for bidding shows insufficient depth for marine
equipment with a five foot draft being between station 9+00 and station 9+50
at the location established for the groin by the original contract;
5) The actual pre-bid bathymetric conditions of the job site 60 feet north of the
groin location established by the original contract would only allow a
contractor a maximum 276 feet of space in which to shelter barges and
equipment within the work limits north of the completed groin. But the
contract-provided profile shows that a contractor would have had
approximately 334 feet in which to shelter barges and equipment.45

45

The following inquiry was made by the Board to this conclusion, with the following
response:
JUDGE GOODMAN: Now, was this the result of that hill you were talking
about or what caused this or was it just the incorrect data. I’m trying to
connect your testimony to your conclusions here.
THE WITNESS: What it boils down to is any set of data that we acquired from
the NRCS, none of them yielded anyway you could get a barge behind the
groin. . . . [T]he only data set that would allow you that is just the contours on

CBCA 2482, 2653
6) Modification 1 changed the location of the groin and thereby shortened the
groin by 122 feet on the seaward end of the groin and by 159 feet overall,
removing more of the staging area;
7) The new position of the groin directed by Modification 1 was necessitated
by errors made by the NRCS as to the coordinates for the groin;
8) Hurricanes Katrina, Rita, and Wilma did not affect the alignment of the
groin or necessitate its realignment;
9) Hurricanes Katrina, Rita, and Wilma did not cause the loss of adequate
floatation space to shelter barges and equipment within the construction limits
of the groin area;
10) The lack of adequate floatation space to shelter barges and other marine
equipment within the construction limits of the groin area existed pre-bid at
both the groin location in the original contract as well as the location directed
for groin construction by Modification 1;
11) The solicitation drawings were changed by hand, and the hump was
“clipped out” and replaced by a gradual sloping, even though the hump existed
in every pre-bid data. Transcript, Vol. 1 at 74-81. However, the witness stated
he did not know who “clipped out” the hump or the reasons for the difference
or the data that caused it to be removed, and he never found data supporting
the removal of the hump. Id. at 141.

the original plan drawings and they we could never recreate them. We never
found a data set for those.
Transcript, Vol. 1 at 77.

36

CBCA 2482, 2653

37

Appellant’s Delay and Disruption Expert’s Testimony as to Entitlement and Quantum
With regard to the claim, its preparation, basis of entitlement, and quantum, appellant
offered testimony at the hearing from Mr. Connole, the professional engineer, as an expert
on delay and disruption analysis and costs. He testified at the hearing, explaining a report
dated May 30, 2014, that he prepared, which consisted of a narrative and documentation with
regard to his opinion as to entitlement46 and quantum.47 Appellant’s Supp. Appeal File, Vol.
6. His conclusions were based in part on appellant’s contention that the length of the groin
and the water depths depicted in the solicitation near the groin would have allowed appellant
to fleet up to eight barges48 of rock north of the groin after the groin was built, which would
have facilitated contract performance by having rock available to build the breakwaters.
Transcript, Vol. 3 at 99-105.
Mr. Connole’s summary conclusion as to entitlement is stated as follows in his report:
Although the NRCS awarded the contract on September 9, 2005, it did not
issue a Notice to Proceed until December 12. Surveys taken after award of the
contract to Choctaw were used to redesign the Groin and prepare
[Modification] No. 1 to correct defects in the contract plans; thereby delaying
a Notice to Proceed. This delay caused work to commence in January and
arises from defective specifications.
Even after surveys taken by the NRCS in the fall of 2005 confirmed that the
contract plans were in error, the NRCS represented to Choctaw that the site
conditions were essentially the same as represented in the contract plans.
Choctaw mobilized to the job site in January unaware of the differing site
conditions, and spent over a month operating in unsafe conditions unable to

46

When questioned on voir dire by respondent’s counsel as to his expertise to
determine entitlement, Mr. Conolle explained that he bases his quantum determination on his
initial determination of entitlement to costs, but acknowledged that entitlement is the ultimate
issue to be determined by the Board. Transcript, Vol. 3 at 32.
47

Mr. Zelenka testified that Mr. Connole calculated the quantum. As it is “just a
math function,” Mr. Zelenka did not get involved in that process. Transcript, Vol. 2 at 70.
48

Apparently, Mr. Connole based this determination on Mr. McCoy’s calculation that
eight barges could be fleeted behind the groin. As mentioned previously, Mr. Ford and Mr.
Zelenka had differing opinions as to how many barges were intended to be fleeted behind the
groin at a given time.

CBCA 2482, 2653

38

accomplish productive work. This wasted and costly effort was caused by the
defective specifications and the failure of the NRCS to disclose critical
information about the jobsite.
Had a timely Notice to Proceed been issued in September, Choctaw could have
mobilized and delivered rock to the jobsite in 2005. Choctaw could have also
built a segment of the Groin large enough for the safe harbor it sought to stage
barges and stockpile rock in 2005 before the winter season precluded work.
Based on my delay analysis, I find that the project, as originally designed,
would have been completed by September 14, 2006. Therefore, all work
performed and cost incurred after September 14, 2006 was caused by the
defective plans and specifications, and is compensable.
Appellant’s Supp. Appeal File, Vol. 6 at 2974-75.
Appellant’s counsel summarized Mr. Connole’s methodology for determining
entitlement and quantum, citing Mr. Connole’s report and his testimony at the hearing.49
This summary reads, in part, as follows:
Mr. Connole evaluated and determined when the Appellant would have
completed the contract work but for what he characterized as the
misrepresentations in the solicitation and drawings as to bathymetric
conditions, the shortening of the Groin due to the Respondent’s error as
corrected by Modification Number 1 and the narrowing of the work limits as
ordered by Modification Number 1.
Mr. Connole’s analysis correlated the loss of the protected fleeting area behind
the Groin to the large delays and disruption incurred by the Appellant. . . .
This loss of the protected area plagued the project for the entirety of
construction. . . .
In order to evaluate the work, Mr. Connole prepared a database for comparison
of the NRCS, Choctaw and Bertucci daily logs/reports for each day so that
each could be compared side-by-side. (Transcript, Vol. 3 at 61-62)
(Appellant’s Supp. Appeal File, Vol. 6, Exhibit 94, Attachments 7 and 8).
Then Mr. Connole determined the days, or partial days, on which the Appellant

49

style.

Appellant’s citations to the record have been conformed to the Board’s citation

CBCA 2482, 2653
could have placed rock (or additional rock) had the conditions been as
represented in the solicitation. (Transcript, Vol. 3 at 65-68)
Mr. Connole was able to isolate a number of days on which work could have
been performed if the Appellant had the protection of the Groin as represented
in the solicitation and drawings, when they were otherwise prevented from
making progress. (Transcript, Vol. 3 at 65-68). This included days when the
Appellant could have worked on the leeward end of the Groin from behind the
protection of the partially constructed Groin on days when work on the
Breakwaters was prohibited by wave action. (Appellant’s Supplemental
Appeal File, Vol. 6, Exhibit 94 at 2968).
Mr. Connole’s analysis also included the additional concurrent progress that
would have been made had Appellant been given the ability to store rock
behind the Groin in order to take advantage of shorter windows of good
weather. It would have taken approximately three hours to unload a
half-loaded rock barge into either the Groin or a Breakwater. (Appellant’s
Supp. Appeal File, Vol. 6, Exhibit 94 at 2969). However, the Appellant could
have supplied the Breakwaters with these half-loaded barges in one hour
increments (roundtrip) as opposed to the four hour roundtrip which was
actually required to supply rock to the Breakwaters from Whiskey Island. (Id.)
(Transcript, Vol. 3 at 131). Naturally, rock stored at the Groin would have
been immediately available for placement on the Groin as opposed to requiring
the same three to four hour supply time from Whiskey Island. . . .
Mr. Connole’s analysis was also conditioned upon the following assumptions
stated in his report:
1. The original Groin construction limits and access allowed for flotation to
Station 7+15.
2. The Appellant could have staged barges behind the Groin within the
construction limits.
3. Work on the Groin could have been accomplished from the north side of
the Groin in accordance with the solicitation.
4. The Appellant could supply rock to the job as they did in January 2006.

39

CBCA 2482, 2653

40

5. The Appellant could have worked on the Groin from the protected area
behind the Groin even when weather and marine conditions prevented work
on the Breakwaters.
6. Given the anticipated protected area behind the Groin, the weather and
marine conditions which forced the placement barges at Whiskey Island of
Cocodrie would not have affected the Groin construction from the north side
of the Groin. [emphasis added]. Appellant’s Supp. Appeal File, Vol. 6,
Exhibit 94 at 2970-71.
Succinctly put, Mr. Connole evaluated when the Appellant would have been
able to complete the contract work as bid with the exception that he used the
increased, actual quantities required to complete the Breakwaters.
Mr. Connole did not claim that the Appellant could have worked on days with
poor weather conditions. He evaluated the impact of the actual weather by
determining whether the Appellant could have placed rock or more rock on an
actual non-work day if the weather was good enough for the Appellant to place
rock if the rock was available on site at or staged behind the groin.
(Transcript, Vol. 3 at 65-68).
Appellant’s Post-Trial Brief at 43-47.
Mr. Connole’s Quantum Determination
Mr. Connole’s quantum calculation was based on the time periods of performance on
the project. Each period was designated as compensable or non-compensable, as described
by appellant:
December 2005 to February 23, 2006. Mr. Connole found this period to be
compensable, as the contractor would not have commenced work during these winter
conditions had the contract plans accurately depicted the actual site conditions. Moreover,
had the contract plans accurately depicted the shallow water depth surrounding the groin,
appellant would not have anticipated or even attempted to perform the work utilizing the asbid means and methods. Appellant’s Post-Trial Brief at 40-41.50

50

Mr. Connole calculates compensable costs for this first period of performance for
both Choctaw and Bertucci to be $1,236,160. For the following periods of performance, for
those that Mr. Connole believes are compensable, he calculates total costs for both Choctaw
and Bertucci of $3,126,093. Appellant’s Post-Trial Brief at 55.

CBCA 2482, 2653

41

February 23 to April 30, 2006. Mr. Connole found this period to be non-compensable,
as appellant was granted a time extension by the contracting officer during this period for
unsafe conditions and as such was not working during this period. Mr. Connole determined
this period to be a non-work period which is not chargeable to respondent. Appellant’s PostTrial Brief at 41; Transcript, Vol. 3 at 162-63.
May 1 to June 11, 2006. Mr. Connole found this period to be non-compensable.
Although the time extension granted by the contracting officer only extended to April 30,
2006, appellant was not performing work on this contract from May 1 until June 11, 2006.
Therefore this was determined by Mr. Connole to be a non-work period for which respondent
was not charged and no damages were claimed. Appellant’s Post-Trial Brief at 41;
Transcript, Vol. 3 at 163-64.
June 12 to September 15, 2006. Mr. Connole found this period to be noncompensable. Appellant performed contract work from June 12 through November 11, 2006.
Mr. Connole determined that the contract work could and would have been commenced by
appellant on June 12, 2006, and should have been completed by September 15, 2006, had the
conditions been as represented in the original contract plans. This is the time period which
is referred to as the contract work period. Costs during this period of time are not being
claimed by appellant and were not included in Mr. Connole’s analysis and determination of
quantum. Appellant’s Post-Trial Brief at 42; Transcript, Vol. 3 at 164-65.
September 16 to November 11, 2006. Mr. Connole found this period to be
compensable. Appellant continued to pursue the work from September 15 until
November 11, 2006,when appellant demobilized due to rough seas and winter weather. This
period of time is work and expense which the appellant would not have incurred had the
representations in the solicitation been correct. Consequently, Mr. Connole determined this
period of time was an extended performance period. Mr. Connole did give respondent credit
for costs for Choctaw’s demobilization from September 15 to 30, 2006. Appellant’s PostTrial Brief at 42; Transcript Vol. 3 at 165.
November 12 to June 30, 2007. Mr. Connole found this period to be noncompensable. During this period appellant was not working on the contract. This was
determined to be a non-work period. Appellant’s Post-Trial Brief at 43; Transcript, Vol. 3
at 166.
July 1 to September 17, 2007. Mr. Connole found this period to be compensable.
During this period, the appellant completed the work prescribed by the contract. As appellant
should have completed the work in September 2006, this period is considered an extended
work period. Appellant’s Post-Trial Brief at 43; Transcript, Vol. 3 at 166.

CBCA 2482, 2653

42

Mr. Connole’s Use of the Total Cost Methodology
During the hearing, the Board asked Mr. Connole whether he understood the concept
of the computation of a claim on a total cost basis and whether or not he calculated
appellant’s quantum on that basis. Mr. Connole explained that he understood the concept of
calculating a claim on a total cost basis and why he believed the claim was not so calculated.
The Board then inquired as to whether Mr. Connole had calculated appellant’s costs for the
period of contract work prior to the projected completion date of September 15, 2006, for
which appellant was not claiming extra costs. Mr. Connole stated at the time of the inquiry
that he had not made these specific calculations. Transcript, Vol. 3 at 231-33.
At the conclusion of the hearing, appellant recalled Mr. Connole as a rebuttal witness.
Appellant’s counsel asked Mr. Connole if he had, after his previous testimony, calculated
appellant’s costs for the period of contract work prior to the projected completion date of
September 15, 2006. While this inquiry was beyond the scope of rebuttal, government
counsel did not raise an objection to the testimony. Mr. Connole stated that he had in the
interim calculated Choctaw’s costs for the period of contract work prior to the projected
completion date, and that amount was approximately $2,238,812, inclusive of materials,
general and administrative expenses, profit, and bond costs. He testified further that he had
not calculated Bertucci’s costs for that same period, because he did not have the information
available, but he stated an opinion, based upon Bertucci’s cost proposal (which he did have
available), that Bertucci’s cost for the same period would have been similar. Transcript,
Vol. 5 at 60-64.51 Thus, the total costs expended by the appellant during the “contract
period”–approximately $4,450,000–were approximately 10% more than the original contract
price–$4,056,032.50–and the total claim in the amount of $4,144,191.20 was approximately
equal to the contract price. As discussed later in this opinion, this testimony indicates that,
despite Mr. Connole’s assertion, the claim was calculated on a total cost basis.
Respondent’s counsel cross-examined Mr. Connole, but did not offer any opposing
expert testimony.

51

Mr. Connole referred to handwritten notes during this testimony, but this
information was not proffered as a hearing exhibit or otherwise included in the record.
Transcript, Vol. 5 at 63-64. Mr. Zelenka testified that Bertucci’s claim costs were “the
excess costs over and above what the cost should have been had we been able to perform the
work as we bid it.” Transcript, Vol. 2 at 112.

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Discussion

Factual Summary
In July 2005, Choctaw, and its subcontractor, Bertucci, reviewed a solicitation in
preparation for appellant’s bid on the project at Raccoon Island, off the Louisiana Coast in
the Gulf of Mexico. The solicitation contained a scope of work to construct eight new
breakwaters south of the island and a groin connecting the eastern end of the island with an
existing breakwater previously constructed by Bertucci in 1997 pursuant to a contract under
which Bertucci had constructed eight breakwaters. Bertucci therefore had experience
operating in the area of the project. During that previous contract, Bertucci had encountered
water depths that shallowed significantly from the time period that contract was bid and later
performed.
The specifications and drawings contained information concerning water depths at the
site near the breakwaters and groin to be constructed. The groin to be constructed was
indicated to be 1084 feet in length, from the eastern end of the island to where it connected
with the existing breakwater. Bidders were clearly notified by notes on the drawings and
specifications that the project site was in a dynamic environment–that bottom elevations may
change due to the dynamics of the environment, that tidal fluctuations would occur, and that
access to the site may be impeded due to shallow water conditions. While the solicitation
drawings contained contour lines indicating water depths, these drawings noted that they
were based on surveys taken in July 2004 and 2003, one to two years before the solicitation
was issued.
Choctaw’s Mr. Ford and Bertucci’s Mr. Zelenka both testified at the hearing that they
had reviewed the plans and specifications and were aware of the warning with regard to the
dynamic environment and shallow water. Even so, despite these indications in the
solicitation, and Mr. Zelenka’s prior experience of changing water depths during
performance of Bertucci’s previous contract, Mr. Ford and Mr. Zelenka testified that they
heavily relied on one solicitation drawing, sheet 5 of 19, with reference to the groin. That
drawing indicated the constructed length of the groin as 1084 feet and the water depths
surrounding it. They testified that at the time of bid they both interpreted the solicitation,
taking into consideration the length of the groin and water depths indicated near the groin,
that once the groin was constructed, there would consistently be sufficient water depths north
of the groin to allow barges loaded with rock to be fleeted, in order to stockpile rock for
placement at the breakwaters. Mr. Zelenka testified that the solicitation did not specifically
state that the area could be used to fleet barges, but he believed it could be. Appellant and
its expert Mr. Connole refer to this interpretation of the solicitation as indicating an “onsite
protected staging area” for fleeting barges behind the groin. Mr. Connole’s opinion as to

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both entitlement and quantum is predicated on his accepting this interpretation of the plans
and specifications of the solicitation as reasonable.
Representatives of Choctaw and Bertucci made pre-bid site visits to the project site
in July 2005, checked water depths with a fathometer, and based their combined bid on their
site visits. According to Mr. Zelenka, their site visit confirmed that water depths permitted
access to the eastern half of the groin by fully-loaded rock barges and pushboats. According
to Mr. Ford, the information they gathered in their site visit was sufficient upon which to
base their bid.
Appellant submitted its bid on August 3, 2005. Hurricane Katrina struck the
Louisiana coast on August 29, 2005. The contract was awarded shortly thereafter, on
September 5, 2005. Appellant expected to receive a notice to proceed with the contract work
shortly after award, to perform the work before the onset of winter weather, which would
make performance more difficult. On September 25, 2005, nearly three weeks after contract
award, Hurricane Rita struck the Louisiana Coast, and on October 15, 2005, Hurricane
Wilma entered the Gulf. Respondent re-surveyed the project site after the hurricanes, and
on December 12, 2005, issued both the notice to proceed and modification 1 to the contract.
The changes in modification 1 included a change in work sequence, requiring that the
groin be constructed first. Mr. Zelenka testified during the hearing that the planned work
sequence had always been to begin work on the groin first. Modification 1 also required a
shortening and realignment of the groin and changes to the breakwaters to be built, including
a change in quantities of riprap and geotextile material. According to modification 1, the
groin still was to be built from the island to the existing breakwater; however, the
modification now indicated that the groin would be 926 feet long, not 1084 feet as indicated
in the solicitation. The revised drawings and specifications that were issued with
modification 1 contained the same warnings with regard to the dynamic environment and
changing water depths, and also changed the access route to the project site. A revised
drawing indicated a sandbar-hump near the groin not previously shown in the solicitation
drawings.
While the modification stated that the changes to the alignment of the groin were
because of “water bottom changes as a result of the hurricane,” government personnel,
including the contracting officer, testified at the hearing that the changes ordered by
modification 1 were not the result of the hurricanes, but were issued to correct errors in the
solicitation that were identified when the project site was re-surveyed. Specifically, the
survey found that incorrect coordinates were indicated for the position of the groin in the
solicitation, resulting in an incorrect length of the groin being stated in the solicitation, and

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that the sandbar-hump that had existed before the hurricane had not been shown on the
solicitation drawings.
Even though the Government had erroneously indicated that the changes in
modification 1 were the result of the hurricanes, rather than the Government’s own errors,
appellant was clearly apprised of the changes to the work required by modification 1 before
beginning contract performance. While the contracting officer requested a price proposal
from appellant when modification 1 was issued, appellant did not submit a proposal at that
time, but proceeded with the work. Mr. Zelenka testified at the hearing that the proper
procedure would have been to negotiate a change order price before performance began.
However, he offered no explanation as to why appellant did not submit a cost proposal before
performance began, or otherwise indicate that additional costs or efforts would be incurred
in order to comply with modification 1.
The performance period of the contract was 193 calendar days, more than six months.
Appellant alleges it intended to begin the work in September 2005 and complete the work
by the end of December 2005, in four months. Appellant further alleges that the notice to
proceed was unreasonably delayed and was a directive to begin work during the winter
season, when the weather was not hospitable to marine contracting work. However,
appellant submitted a proposed schedule to commence in December 2005 and continue
through March 2006.
Choctaw and Bertucci mobilized in December 2005 and arrived at the project site in
January 2006. Even though modification 1 clearly indicated that the length of the groin to
be constructed was 926 feet, Mr. Zelenka stated he did not realize the groin was to be shorter
than indicated in the original solicitation until his personnel arrived on site and attempted to
“get barges in there.” He stated that this was a common occurrence, as a plan to fleet barges
is not understood until the barges actually arrive on site. At this point, the groin was not
constructed.
When contract performance began in January 2006, appellant began to experience the
conditions that both the solicitation and modification 1 indicated–a dynamic environment and
changing water depths. These conditions were also compounded by severe weather.
Appellant and its subcontractor mobilized in December 2005 and worked until February 22,
2006, completing approximately two percent of the contract work in fifty-three percent of
the allegedly planned performance time. Appellant demobilized and thereafter returned to
the project site, working in the spring through fall, alleging it was not able to accomplish
productive work during the winter, despite Mr. Sanders’ four-month schedule the indicated
the intent to complete the performance of the contract in March 2006.

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During construction, appellant alleged delays as the result of severe weather and fog.
Appellant also reported changing water depths from day to day. These changing water
depths were characterized as extremely shallow water conditions where deeper water had
been earlier. Contemporaneous documentation described sand filling in behind the
construction near the groin and in the access channels. Also, appellant’s letters to the
contracting officer described rapidly changing site conditions due to the volatility of the
weather and the environment around the jobsite. The contracting officer issued time
extensions to allow for the delays encountered.
While various allegations of “differing site conditions” and “different site conditions”
were asserted in appellant’s correspondence and job records, the record of this appeal does
not contain any contemporaneous written allegation during the entire period of performance
that any of the difficulties encountered were the result of the shortening of the groin in
modification 1 or the alleged inability to fleet barges behind the groin once it was
constructed. There is also no specific written allegation as to delay caused specifically by
the sandbar-hump.
In a letter dated September 26, 2006, Choctaw informed the contracting officer that
a proposal for additional costs would be submitted “once physical work is completed.” The
contract work was completed almost a year later, on September 17, 2007. Two and a half
years after contract completion, in January 2010, appellant submitted a cost proposal for the
alleged cost impact of modification 1, on behalf of itself and its subcontractor. Bertucci’s
narrative submitted with this cost proposal contains the first mention of the groin “providing
additional protection from the Gulf seas.” During the following year, appellant and
respondent attempted to resolve the cost proposal but were not successful. In a letter dated
September 28, 2010, Choctaw for the first time mentions the reduction of the length of the
groin. On January 10, 2011, appellant submitted a certified claim and received two
contracting officer decisions denying the claim and assessing damages against appellant.
Appellant appealed both decisions to this Board. During a hearing on the merits,
respondent withdrew its claim for damages against appellant. The focus of the hearing was
the entitlement to additional costs arising from the changes issued in modification 1– changes
in the work sequence and alignment to changes in the groin and the breakwaters to be
constructed, with resulting changes in quantities of rock and geotextile material. Also,
changes in the work limits and access routes were specified.

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Appellant’s Burden of Proof
Appellant has the burden of proving de novo the fundamental facts of liability and
damages. See Servidone Construction Corp. v. United States, 931 F.2d 860, 861 (Fed. Cir.
1991); See William F. Klingensmith, Inc. v. United States, 731 F.2d 805, 809 (Fed. Cir.
1984); See Blinderman Construction. Co., Inc. v. United States, 695 F.2d 552, 559 (Fed. Cir.
1982). Appellant chose not to submit a price proposal upon receipt of modification 1, but
proceeded to perform the work as changed. During performance, appellant informed
respondent it would send a proposal after completion of the work. Appellant’s claim, which
is the subject of this appeal, was submitted two and one-half years after contract completion.
Allegations of Superior Knowledge, Intentional Misrepresentation, Defective Specifications,
and Breach of the Duty of Good Faith and Fair Dealing
We must first address appellant’s allegation that respondent had superior knowledge,
made intentional misrepresentations, issued defective specifications, and breached the duty
of good faith and fair dealing. These allegations are based upon respondent’s erroneous
statement in modification 1 that the alignment changes in the groin and the breakwaters were
the result of “bottom changes as the result of the hurricane” and the contracting officer’s
erroneous assertion in the final decision denying appellant’s claim that the changes resulting
from modification 1 were minor and the result of intervening natural events that occurred
after contract award.
Government personnel, including the contracting officer, testified at the hearing that
the length of the groin was changed because the original solicitation contained incorrect
coordinates that caused the designers to indicate that the length would be 1084 feet, when
the distance from the end of the island to breakwater zero was only 922 feet, and this was not
the result of the hurricane. This change in length was not the result of bottom changes due
to the hurricane. The assertion that the alignment of the groin and the breakwaters was due
to water bottom changes as the result of the hurricanes was not correct and apparently known
to government personnel to be incorrect when modification 1 was issued. None of
respondent’s witnesses attempted to explain why this incorrect assertion was made, in
modification 1 and the contracting officer’s decision denying appellant’s claim.
The doctrine of superior knowledge applies when the contractor proceeds without
knowledge withheld by the Government. In CAE USA, Inc. v. Department of Homeland
Security, CBCA 4776, 16-1 BCA ¶ 36,377, we stated:
The superior knowledge doctrine only applies “in limited circumstances.” GAF
Corp.[v. United States], 932 F.2d 947 at 949 (Fed. Cir 1991). To show a

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contract breach under the superior knowledge doctrine, a contractor claiming
a breach by non-disclosure must establish the following:
The doctrine of superior knowledge is generally applied to
situations where: (1) a contractor undertook to perform without
vital knowledge of a fact that affects performance costs or
duration; (2) the government was aware the contractor had no
knowledge of and had no reason to obtain such information; (3)
any contract specification supplied misled the contractor or did
not put it on notice to inquire; and (4) the government failed to
provide the relevant information. Giesler v. United States, 232
F.3d 864, 876 (Fed. Cir. 2000).
16-1 BCA at 177,350-51.
Appellant was required pursuant to the Site Investigations and Conditions Affecting
the Work clause “to take steps reasonably necessary to ascertain the nature and location of
the work.” Appellant’s pre-bid site investigation confirmed the existing water depths with
a fathometer. At that time, appellant also had the opportunity during the site visit to measure
the distance from the island to breakwater zero, which was to be the length of the groin, the
dimension that was allegedly critical to appellant’s plan to fleet barges behind the constructed
groin. Therefore, before bidding, appellant had its own information as to water depths near
the sandbar-hump and the opportunity to verify the length of the groin. When modification 1
was issued after contract award, appellant had already verified the sufficiency of the water
depths and the modification itself clearly showed the revised length of the groin. As
appellant had verified the water depths and knew the revised length of the groin before it
undertook to perform the contract work, the doctrine of superior knowledge does not apply.
There is no evidence that government personnel were aware at the time the solicitation
was issued that the solicitation contained errors. Accordingly, there is no evidence of
intentional misrepresentation of information in the solicitation. The errors discovered
thereafter were corrected when respondent issued modification 1, which clearly disclosed the
corrected information to appellant before performance of the work began. The correction
of these errors by modification 1 before performance commenced, with a request for a price
proposal from the appellant, also vitiates the allegation of defective specifications.
Appellant also asserts that respondent breached the duty of good faith and fair dealing.
The duty of good faith and fair dealing requires the Government, as well as other parties to
contracts, not only to avoid actions that unreasonably cause delay or hindrance to contract
performance, but also to do whatever is reasonably necessary to enable the other party to

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perform. Kiewit-Turner, a Joint Venture v. Department of Veterans Affairs, CBCA 3450,
15-1 BCA ¶ 35,820 at 175,176. Respondent’s issuance of modification 1 prior to contract
performance to correct the errors and the solicitation and request a price proposal for the
changes in the modification did not delay or hinder contract performance, but was done so
as to enable appellant to perform.
Government witnesses admitted that respondent stated erroneous reasons in
modification 1 and the contracting officer’s decision for these changes, and did not explain
why they did not admit that the changes were the result of errors in the original solicitation.
Even so, this lack of truthfulness as to the reasons for the changes does not in itself give rise
to entitlement for increased costs. Respondent did request a price proposal in modification 1,
acknowledging that the changes might result in increased costs. Appellant was fully aware
of the parameters of the changes in the work ordered in modification 1 before contract
performance commenced, and appellant must prove that it incurred increased costs to
perform the work as changed.
Credibility Issue Raised After the Hearing
Respondent’s counsel raised an issue of credibility in respondent’s post-hearing
briefs–whether appellant had planned, as its means and methods of operation, to fleet barges
behind the groin during contract performance, and based its bid upon this methodology.
Respondent asserts that appellant’s plan to fleet barges was devised only during claim
preparation, after contract completion, as this plan was mentioned for the first time in
appellant’s cost proposal for Modification 1 submitted on February 11, 2010.52 Respondent’s
Post-Trial Brief at 5; Respondent’s Sur-Reply Brief at 2-3.
Appellant rebuts respondent’s questioning of the timing of the origin of its fleeting
plan by referring to a November 12, 2005, email message from Bertucci to Choctaw which
mentions beginning work on the breakwaters and the seaward end of the groin. Appellant
also refers to the sworn testimony of Mr. Ford and Mr. Zelenka as to the intent of the plan
and shipment of fifteen loaded barges of riprap to the site in January 2006, allegedly

52

We do not find specific mention of fleeting behind the groin in the February 11,
2010, cost proposal. However, Choctaw’s letter dated September 28, 2010 mentions that in
a meeting on August 17, 2010, Choctaw explained to NRCS personnel that it “planned on
using the seaward end of the new groin as a fleeti

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/agency%3Acbca%3Ad78898bbfdbd181a. Public record. Not legal advice.