GSC Construction, Inc.
Docket: ASBCA 59046
Decision date: 2014-09-02

ARMED SERVICES BOARD OF CONTRACT APPEALS 
Appeal of -- ) 
) 
GSC Construction, Inc. ) 
) 
Under Contract No. W9126G-1 l-D-0061 ) 
APPEARANCE FOR THE APPELLANT: 
APPEARANCES FOR THE GOVERNMENT: 
ASBCA No. 59046 
James S. Delsordo, Esq. 
Argus Legal, LLC 
Manassas, VA 
Thomas H. Gourlay, Jr., Esq. 
Engineer Chief Trial Attorney 
Ronald J. Goodeyon, Esq. 
Jason R. Chester, Esq. 
Engineer Trial Attorneys 
U.S. Army Engineer District, Tulsa 
OPINION BY ADMINISTRATIVE JUDGE MCILMAIL 
ON THE GOVERNMENT'S MOTION FOR SUMMARY JUDGMENT 
The government contracted with appellant to construct a facility at Fort Sill, 
Oklahoma. Appellant seeks additional compensation for certain utilities work. The 
government moves for summary judgment. We deny the motion. 
STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION 
The following material facts are undisputed: 
1. On 15 September 2011, the Department of the Army (government) 
awarded GSC Construction, Inc. (appellant) Task Order 
0001 pursuant to Contract 
No. W9126G-11-D-0061, an indefinite delivery, indefinite quantity contract (R4, tab 4(p) 
at 3377). 
2. The task order amount was $11,951,460 (R4, tab 4(p) at 3377). 
3. The task order provides that appellant would "[c]omplete the Design and 
Construction of the Central Issue Facility" (a warehouse) at Fort Sill, Oklahoma (R4, 
tab 4(p) at 3374, 3380, 3383). 

4. The Statement of Work (SOW)§ 6.4.6.1.(c) provides: 
Water mains are shown on the drawings at Appendix J .... 
The Infrastructure Contractor will provide the potable 
water service between the main line to the 5-foot line of 
the building. Provide potable water service from the 5-foot 
line to the facility and within the building.... The 
Government will provide primary or main water pipe 
distribution .... 
(R4, tab 4(p) at 3474) 
5. Section 6.4.6.1.(d) provides: 
The Infrastructure Contractor will design and construct the 
sanitary sewer service line between the sanitary sewer 
main to 5 feet from the building .... 
(R4, tab 4(p) at 3474) 
6. Section 6.3.1.5. provides "infrastructure drawings are provided as 'for 
information only' reference" (R4, tab 4(p) at 3472). 
7. Appendix EE, "Infrastructure Drawings," includes a drawing entitled 
"OVERALL PROJECT CONSTRUCTION ACCESS" (R4, tab 4(p) at 4090, 4093). 1 
Note 4, "WATER SUPPLY AND DISTRIBUTION," ofthe drawing states: 
MULTIPLE EXISTING WATER LINES WILL NEED 
TO BE REROUTED AS PART OF THIS PROJECT. 
THERE IS AN EXISTING 12" TRANSITE AND 24" 
CAST IRON WATER LINE RUNNING THRU THE 
FOOTPRINT OF THE NEW FACILITY. THE 12" LINE 
WILL BE REMOVED AND REROUTED AROUND 
THE SOUTH SIDE OF THE FACILITY. AN 8" LOOP 
WILL BE CONNECTED TO THIS LINE TO SERVE 
THE FACILITY WATER DEMANDS. THE EXISTING 
24" CAST IRON WATER LINE IS ABANDONED .... 
THE PORTION OF THIS LINE UNDER THE 
FOOTPRINT OF THE NEW FACILITY WILL BE 
REMOVED. AN EXISTING 24" WATER LINE UNDER 
1 Although the government points to pre-contract drawings, our drawing references 
are to the versions of those drawings that are appended to the contract. 
2 

THE NEW POV PARKING LOTS WILL ALSO NEED 
TO [BE] REMOVED. 
(R4, tab 4(p) at 4093) 
8. The Overall Project Construction Access drawing, at note 5, "SANITARY 
SEWER," states: 
THE NEW MAINS WILL BE 8" WITH THE NEW 
SERVICE 
LINES 6". THE NEW MAINS AND 
SERVICE 
LINES WILL HA VE PRE-CAST MANHOLES 
INSTALLED TO ALLOW FOR THE CONNECTION OF 
THE NEW FACILITY. 
(R4, tab 4(p) at 4093) 
9. Appendix EE includes a drawing entitled "UTILITY PLAN" (R4, tab 4(p) at 
4102). Note 2 of that drawing states that "CONTRACTOR WILL PROVIDE ANY 
SANITARY SEWER ELEMENT REQUIRED OUTSIDE 5' OF THE BUILDING 
INCLUDING A CLEANOUT OR MANHOLE AND CAP FOR FUTURE 
CONNECTION" (id.). 
10. The Utility Plan drawing, at note 4, states that "CONTRACTOR WILL 
PROVIDE THE PIV AND ROUTE FIRE WATERLINE (SEP ARA TE FROM THE 
DOMESTIC SUPPLY). CONTRACTOR WILL TAKE 
FIRE WATER LINE AND 
ROUTE WITHIN THE BUILDING." (R4, tab 4(p) at 4102) 
' 
11. On 19 February 2013, Bilateral Modification No. A00002 was issued, 
increasing the contract amount by $47,951, including for appellant to "provide and install 
approximately 150 LF of 8" Fire Protection water line, extending from the water line to a 
point 5 ft from the building" (R4, tab 4(s) at 4781).2 
12. On 14 March 2013, appellant presented to the contracting officer (CO) a 
certified claim for $826,355 for five categories of work that appellant categorized as 
"Natural Gas, Water Mains, Sanitary Sewer, Electrical, and Communications" (R4, tab 2 
at 1, 6). The water main component of the claim sought compensation for moving what 
appellant called "the 24" primary or main water line" from the 5-foot line to the building 
(R4, tab 2 at 4). 
2 Although the Rule 4 file copy of the modification indicates that appellant was 
required to sign the modification, the copy bears the signature of neither party. 
3 

13. On 18 June 2013, appellant revised its claim to add a request for a contract 
modification for "a (112) day time extension with extended overhead in the amount of 
$162,309.28" (R4, tab 3 at 2). 
14. In a 22 August 2013 final decision, the CO granted appellant's claim in part, 
and denied the claim in part (R4, tab 1 at 13). The CO found merit for $442,119.63 for 
"design and installation costs for the electrical .distribution line and the site 
communication line" (id.). The CO denied appellant's claim for $546,544.65 for "[t]he 
remaining site utilities (12" water line, relocate 24" water line, 10" fire loop, sanitary 
sewer line, and site lighting)" (id.). 
15. Appellant received the CO's decision on 30 August 2013, and timely filed this 
appeal on 26 November 2013. 
DECISION 
Introduction 
The government requests summary judgment in its favor on the entirety of the 
appeal. Summary judgment shall be granted ifthe movant shows that there is no genuine 
dispute as to any material fact and the movant is entitled to judgment as a matter of law. 
FED. R. CIV. P. 56(a); Mingus Constructors, Inc. v. United States, 812 F.2d 1387, 1390 
(Fed. Cir. 1987). Appellant seeks compensation for alleged government-directed changes 
to the contract work relating to four issues: 
(1) a sanitary sewer line; (2) a 12" water line; 
(3) the relocation ofa 24" water line; and (4) a 10" fire loop (amended compl. iii! 14, 26; 
R4, tab 1 at 13).3 The Board denies the motion. 
Sanitary Sewer Line 
With respect to the sanitary sewer line claim, the government does not respond to 
appellant's contention that the issue is "who was to provide the installation of the sanitary 
sewer main" (app. resp. at 12), and we take that silence as agreement. Consequently, we 
reject the government's reliance upon SOW§ 6.4.6.1.(d) (gov't mot. at 3, 10). That 
section did not require appellant to install a sewer main; it required appellant to "design 
3 It is unclear what, if anything, happened to the "Natural Gas" category that appellant 
referenced in its claim to the CO (SOF if 12). The CO denied five categories of 
claims amounting to $546,544.65 (none of which appears to relate to natural 
gas (SOF if 14)), and appellant's amended complaint seeks only that amount 
(amended compl. iii! 14, 26). In any event, the government's motion does not 
expressly address any natural gas claim; therefore, nor do we. Moreover, in a 
letter to the Board dated 20 August 2014, appellant confirmed that the appeal 
does not include any claim for compensation regarding "site lighting." 
4 

and construct the sanitary sewer service line between the sanitary sewer main to 5 feet 
from the building" 4 (SOF ~ 5) (emphasis added). 
The government also relies upon the Overall Project Construction Access drawing, 
but that drawing, although it refers to "NEW [SEWER] MAINS," does not state that the 
contractor would install those mains (SOF ~ 8). 5 Although the Utility Plan drawing notes 
that the contractor "WILL PROVIDE ANY SANITARY SEWER ELEMENT 
REQUIRED OUTSIDE 5' OF THE BUILDING INCLUDING A CLEANOUT OR 
MANHOLE AND CAP FOR FUTURE CONNECTION" (SOF ~ 9), the government 
does not demonstrate that a sewer main is a "SANITARY SEWER ELEMENT" within 
the meaning of that note, particularly where the note specifies "A CLEANOUT OR 
MANHOLE AND CAP FOR FUTURE CONNECTION" as examples. Consequently, 
the government does not demonstrate that, with respect to the sanitary 
sewer line, there is 
no genuine dispute as to any material fact and that it is entitled to judgment as a matter of 
law. Accordingly, with respect to the sanitary sewer line claim, the motion is denied. 
Water Lines 
With respect to the water line claims (that is, the claims for the 12 
11 
water line, 24 
11 
water line, and 10
11 
fire loop), the government does not demonstrate that there is no 
genuine dispute as to any material fact and that it is entitled to judgment as a matter of 
law. The government relies upon SOW§ 6.4.6.1.(c) (gov't mot. at 3, 9), which required 
appellant to "provide the potable water service between the main 
line to the 5-foot line of 
the building," but the same section required the government to "provide primary or main 
water pipe distribution" (SOF ~ 4). The government does not demonstrate which, if any, 
of the lines in question were lines within 5 feet of the building, as opposed to lines for 
"primary or 
main water pipe distribution." 
In addition, although the government relies upon drawing notes (gov't mot. at 
9-11 ), it cites no evidence that establishes which water lines at issue are those referenced 
in those notes. For example, the government recites a portion of note 4 of the Overall 
Project Construction Access drawing (gov't mot. at 3, ~ 5). That note references at least 
four water lines, two of which are 24
11 
lines: an abandoned 24
11 
cast iron line, and "AN 
EXISTING 24
11 
WATER LINE UNDER THE NEW POV PARKING LOTS WILL 
ALSO NEED TO [BE] REMOVED" (SOF ~ 7). However, the government recites only 
4 Appellant does not dispute that pursuant to Amendment No. 7, which replaced all 
references in § 6.4.6.1. to "Infrastructure Contractor" with "D/B Contractor" 
(R4, tab 4(h) at 3151 ), the term "Infrastructure Contractor" in § 6.4.6.1.( d) 
refers to appellant (app. resp. at 11). 
5 Although § 6 .3 .1. 5. provides that "infrastructure drawings are provided as 
'for information only' reference" (SOF ~ 6), we need not decide now 
what that language means. 
5 

the portion of the note referencing the cast iron line; it omits the "EXISTING 24" 
WATER LINE" language (gov't mot. at 3, if 5). Nevertheless, the government does not 
cite any evidence that establishes that the 24" line that is the subject of appellant's claim 
is the cast iron line referenced in the note. 
Even if the government had recited the omitted language, the note uses the term 
"24" WATER LINE," whereas appellant, tracking the language of section 6.4.6.1.( c) that 
imposes obligations upon the government, refers to "the 24 inch primary or main water 
line" (app. resp. at I I) (emphasis added). Indeed, the government does not reply directly 
to appellant's contention that, in its view, "[t]he problem is that [appellant] never 
received a compensation for relocating the 24 inch primary or main water line" (id.). 
The government also recites drawing note references to an "8" loop" and a "fire 
waterline" (gov't mot. at 3, ifif 5-6), but does not establish as undisputed fact that 
appellant's IO" fire loop claim concerns those features. Finally, the government does not 
explain whether "THE I2" LINE" referenced in a drawing note is the subject of 
appellant's I2" line claim; even so, that note states that "THE I2" LINE WILL BE 
REMOVED AND REROUTED" without stating who would be responsible for that work 
(SOF if 7). If the government's position is that the contract imposed upon appellant the 
obligation to perform all water line work within the site, its motion does not establish that 
obligation. 
In short, the government has not met the standard for summary judgment upon 
the water line claims. This may be a case in which evidence of trade practice and 
custom plays an important role in contract interpretation, to explain the meaning of 
technical terms in contract provisions and on contract drawings. See generally Metric 
Constructors, Inc. v. NASA, I69 F.3d 747, 752 (Fed. Cir. I999). The Board might also 
benefit from further, detailed evidence from those with personal knowledge of the 
contract work, or from stipulated facts. Because the government contends that it 
intended that the work would comply with the contract drawings (gov't reply at 1 ), we 
note that the subjective, unexpressed intent of one of the parties is irrelevant to contract 
interpretation. Elam Woods Constr. Co., ASBCA No. 52448, OI-I BCA if 3I,305 
at I54,547. 
6 

CONCLUSION 
The Board denies the motion for summary judgment. The parties shall confer and, 
within 21 days of the date of this decision, file a jointly-proposed schedule for further 
proceedings. 
Dated: 2 September 2014 
I concur 
~~E~ 
Administrative Judge 
Acting Chairman 
Armed Services Board 
of Contract Appeals 
Administrative Judge 
Armed Services Board 
of Contract Appeals 
I concur 
Administrative Judge 
Vice Chairman 
Armed Services Board 
of Contract Appeals 
I certify that the foregoing is a true copy of the Opinion and Decision of the 
Armed Services Board of Contract Appeals in ASBCA No. 59046, Appeal of GSC 
Construction, Inc., rendered in conformance with the Board's Charter. 
Dated: 
7 
JEFFREY D. GARDIN 
Recorder, Armed Services 
Board of Contract Appeals