C.R. Pittman Construction Co., Inc.
Docket: ASBCA 57387, ASBCA 57388, ASBCA 57688
Decision date: 2015-02-04

ARMED SERVICES BOARD OF CONTRACT APPEALS 
Appeals of -- ) 
) 
C.R. Pittman Construction Co., Inc. ) 
) 
Under Contract No. DACW29-00-C-0075 ) 
APPEARANCES FOR THE APPELLANT: 
APPEARANCES FOR THE GOVERNMENT: 
ASBCA Nos. 57387, 57388, 57688 
Gerald A. Melchiode, Esq. 
Jeffery B. Struckhoff, Esq. 
Galloway, Johnson, Tompkins, 
Burr & Smith 
New Orleans, LA 
Thomas H. Gourlay, Jr., Esq. 
Engineer Chief Trial Attorney 
William G. Meiners, Esq. 
Engineer Trial Attorney 
U.S. Army Engineer District, New Orleans 
OPINION BY ADMINISTRATIVE JUDGE WILSON 
These appeals originate from claims filed under a construction contract for 
improvements to the Soniat Canal in Jefferson Parish, Louisiana. 1 The contract 
required, inter alia, C.R. Pittman Construction Co., Inc. (appellant or Pittman) to 
increase the drainage capacity of the existing drainage canal by lining it with concrete 
and increasing the cross-sectional area by excavation. Appellant filed three claims 
alleging the following: (1) a Type II differing site condition regarding removal of 
sheet piling (ASBCA No. 57387); (2) delays due to flood events (ASBCA No. 57388); 
and (3) breach of contract by the Corps due to the deletion of gravity sewer line work 
from the contract (ASBCA No. 57688). The Board has jurisdiction of the appeals 
under the Contract Disputes Act of 1978, 41 U.S.C. §§ 7101-7109. The Board held a 
hearing in New Orleans, Louisiana, on the above-captioned appeals. The parties have 
submitted post-hearing and reply briefs. Only entitlement is before the Board for 
decision. 
1 The Board previously issued a decision under the same contract denying entitlement 
to additional delay costs associated with timber mats. See C.R. Pittman Constr. 
Co., ASBCA No. 54901, 08-1BCA~33,777. Familiarity with that decision is 
presumed. 

FINDINGS OF FACT 
A. The Contract 
1. On 25 July 2000, the United States Army Corps of Engineers (government 
or Corps) awarded Contract No. DACW29-00-C-0075 to appellant in the amount of 
$14,426,258 for the "Southeast Louisiana Urban Flood Control Project, Improvements 
to Soniat Canal" in Jefferson Parish, Louisiana (R4, vol. II, tab D). The fixed-price 
contract required appellant to increase the drainage capacity of the existing drainage 
canal by lining the canal with concrete and increasing the canal cross-sectional area by 
shallow excavation. Upon completion of the project, the canal would convey storm 
runoff from Metairie, Louisiana, towards a pumping station in Jefferson Parrish and 
ultimately into Lake Pontchartrain. (ASBCA No. 57387 (57387), compl. and answer 
ii 8; tr. 1/28) The contract further required completion of the work within 900 calendar 
days of the receipt of "Notice to Proceed," which was issued and received on 28 July 
2000 (57387, compl. ii 9; supp. R4, tab 3; R4, vol. II, tab D). Thus the contract 
completion date was 14 January 2003. 
2. The contract contained the following standard clauses: Federal Acquisition 
Regulation (FAR) 52.233-1, DISPUTES (DEC 1998); FAR 52.243-4, CHANGES (AUG 
1987); Defense Federal Acquisition Regulation Supplement (DF ARS) 252.243- 7001, 
PRICING OF CONTRACT MODIFICATIONS (DEC 1991 ); and DF ARS 252.243- 7002, 
REQUESTS FOR EQUITABLE ADJUSTMENT (MAR 1998) (R4, vol. II, tab D). 
3. The contract contained the standard FAR 52.232-5, PAYMENTS UNDER 
FIXED-PRICE CONSTRUCTION CONTRACTS (MA y 1997) clause, which stated in relevant 
part: 
(1) The Contractor's request for progress payments shall 
include the following substantiation: 
(i) An itemization of the amounts requested, related to the 
various elements of work required by the contract covered 
by the payment requested. 
(2) In the preparation of estimates, the Contracting Officer 
may authorize material delivered on the site and 
preparatory work done to be taken into consideration .... 
2 

(f) Title, liability and reservation of rights. All material 
and work covered by progress payments made shall, at the 
time of payment, become the sole property of the 
Government. ... 
(R4, vol. II, tab D at 58-60) The contract also contained FAR 52.236-2, DIFFERING 
SITE CONDITIONS (APR 1984) which reads: 
(Id. at 73) 
(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. 
4. Additionally, the contract contained the following special provision in 
pertinent part: 
52.231-5000, EQUIPMENT OWNERSHIP AND OPERA TING 
EXPENSE SCHEDULE (MAR 1995)-- EFARS 
(b) Allowable cost for construction and marine plant and 
equipment in sound workable condition owned or 
controlled and furnished by a contractor or subcontractor at 
any tier shall be based on actual cost data for each piece of 
equipment or groups of similar serial and series for which 
the Government can determine both ownership and 
operating costs from the contractor's accounting records. 
3 

When both ownership and operating costs cannot be 
determined ... costs for that equipment shall be based upon 
the applicable provisions of EP 1110-1-8, Construction 
Equipment Ownership and Operating Expense Schedule, 
Region III. 
(R4, vol. II, tab D at 58) 
B. Additional Findings of Fact Pertaining to ASBCA No. 57387 Type II Differing Site 
Condition (Sheet Piling) Claim 
5. The contract also contained the following provision: 
SECTION 02252 -TEMPORARY RETAINING 
STRUCTURES 
PART 1 GENERAL 
1.1 SCOPE 
This work shall consist of designing, furnishing, 
installing, maintaining and subsequently removing all 
temporary retaining structures required to complete this 
project. The Contractor shall be solely responsible for 
the design, layout, construction, maintenance and 
subsequent removal and disposal of all elements of the 
temporary retaining structures. 
1.2 MEASUREMENT AND PAYMENT 
No measurement will be made for work specified in this 
section. Payment will be made at the contract lump sum 
price for "Temporary Retaining Structures". Price and 
payment shall constitute full compensation for 
furnishing all plant, labor, materials, and equipment; 
designing, furnishing, installing, maintaining, and 
removing the temporary retaining structures, backfilling 
voids, and all other work incidental thereto. 
4 

1.4.2 Elevations 
The retaining structures shall have sufficient height to 
retain the soil between them. The minimum tip 
elevation shall be (-) 52 feet C.D. 
PART3 EXECUTION 
3 .2 REMOVAL OF MATERIAL 
3.2.1 Removal Criteria 
... All Contractor-furnished temporary retaining 
structures shall be removed from the site of work upon 
completion of work. 
3.2.2 Safety 
The removal of the temporary retaining structures shall 
be accomplished in a manner not injurious to the 
properties adjacent to and in the proximity of the project 
excavations. 
(R4, vol. II, tab D at 232-33, 235) Additionally, Section 02252 was amended (via 
Amendment No. 0003) during the solicitation phase of the procurement to add the 
following language: "Any and all costs for retaining structures required to remain in 
place in the vicinity of the transmission towers ... shall be included in the contract lump 
sum price for 'Temporary Retaining Structures"' (id. at 385). 
6. The contract gave appellant the option to perform the work from an elevated 
work platform or on a bank adjacent to the canal where available. Appellant chose to 
build an elevated platform in order to construct the Temporary Retaining Structure 
(TRS) required by Item 0008 of the contract. (Tr. 11153, 2116-17) Item 0008 of the 
bidding schedule called for appellant to provide the TRS for a total price of $4,575,000 
(R4, vol. II, tab D at 3). The purpose of the TRS was to retain the earth on each side 
of the canal to allow for excavation and the placement of concrete (tr. 1129). 
7. On 14 November 2000, appellant submitted its TRS design to the 
government for approval. The submission provided in part: 
5 

Overview: 
Our temporary retaining structure for use in the 
construction of the concrete flume of the Soni at Canal 
consist of utilization of an Internally Braced earth retaining 
structure system. Our system consist [sic] of utilization of 
a steel sheetpiling wall line with walers and 
struts ... utilizing the AZ-18 rd.04" Arbed Steel Sheetpiling 
at 70 ft. long as specified via the project plans .... 
The internally braced components will be a W24 and W36 
fabricated waler beams and 16 inch and 24 inch diameter 
pipe strut members .... 
Submittals: 
Design: 
Design calculations have been prepared utilizing the design 
procedures, loads, factors of safety, etc as detailed via Section 
02252 of the contract documents. The earth pressure 
results ... have been developed by our geotechnical consultant, 
Mr. Mohammad Tavassoli Ph.D .... while, the structural 
design components have been done by our firm's Engineers. 
Steel Sheetpiling Installation & Removal: 
Once the earth retaining structure is not necessary, the 
temporary sheetpiling not required to remain in the ground 
will be extracted.... Once pulled the sheetpiling will be 
stacked and then loaded on to truck[ s] to be remove[ d] 
from or transported to another location on the project site. 
(R4, vol. 1, tab D at 2-3) Steel sheet pilings are long structural sections with a vertical 
interlocking system that creates a continuous wall. The walls are most often used to 
6 

retain either soil or water. (Supp. R4, tab 15) The sheet piles are placed in the ground 
by a 
vibrating hammer, which drives the piling into the soil (tr. 1/46-47). Permanent 
sheet piles remain in the ground and serve as permanent retaining structures. 
Temporary sheet piles are designed to provide safe access for construction, and are 
then removed. (Id.) The record reflects that appellant used 70 ft. long AZ-18 sheet 
pilings as set forth in the TRS design submission (R4, vol. I, tab D). 
8. The record further demonstrates that TRS work was performed and appellant 
billed the government for that work as of 7 December 2000 and 12 January 2001 (supp. 
R4, tabs 9, 10). By letter dated 21 February 2002, appellant notified the Corps that it 
was experiencing difficulties extracting the sheet piling from the ground on the project. 
Appellant 
stated: 
We have try [sic] different vibratory hammers and have try 
[sic] to change the rpm's so that it might decrease the 
vibration readings .... 
Since the U.S. Corps of Engineers provided the length 
criteria that these sheetpiling were to be, could you please 
advise as to our next step in removing the sheetpiling. We 
did not have figured in our bid price to leave any 
sheetpiling in the ground except what was to remain on the 
east side as shown on the contract plans. 
(R4, vol. I, tab E) 
9. The Corps responded, by letter dated 11 March 2002 advising as follows: 
The contract language regarding this subject is clear­
the minimum tip elevation of the temporary sheetpiling 
and the criteria for maximum allowable vibrations during 
driving or pulling are clearly stated. The methods you use 
for sheetpile installation and removal shall comply with 
these vibration requirements. You may, however, elect to 
leave sheetpile in place instead of pulling them, provided 
the remaining sheetpile are cut off a minimum of 2 feet 
below finished grade and provided there is no additional 
cost to the Government. 
(R4, vol. I, tab F) 
10. On 28 May 2002, appellant sent an inquiry to the CO requesting guidance 
on the specifics as to the sheet piling to be left in the ground (R4, vol. I, tab G). 
7 

Further, by letter dated 4 August 2002, appellant replied to the Corps' 11 March 2002 
correspondence indicating that it disagreed with their position. Appellant stated: 
As you are well aware, we have been frugally trying to 
remove the sheetpiling so that these materials can be 
moved to be utilize [sic] in our Phase 2 of construction. 
Due to circumstances beyond our control we have not been 
able to extract some of the sheetpiling from out of the 
ground. 
There are seventy-five sheetpiling that had to be left in the 
ground during our Phase I of construction (Monoliths 2 
thru 19). These sheetpiling do not include the sheetpiling 
that were left in the ground next to the Entergy 
transmission tower on the eastside, nor the sheetpiling that 
are to remain in front of the two houses on the westside per 
the two modifications (CIN-13 and CIN-33). 
In this breakdown we have included extended overhead for 
21 days and request a contract time extension of 45 days 
for delays and the time it will take to procure the materials. 
(R4, vol. I, tab Hat 1-2) Appellant also invoked the Differing Site Conditions clause 
and included a cost proposal in the amount of $396,404.18. The proposal included 
costs associated with the following: (1) repairs to a crane which was allegedly 
damaged due to the excessive vibrations expended to unsuccessfully extract the sheet 
piling from the ground; (2) labor expended to remove the sheet piling; (3) replacement 
costs for the 75 sheet piles; ( 4) front office overhead; and (5) overhead, profit, and 
bond costs. (R4, vol. I, tab H) The record contains a drawing that demonstrates where 
the sheet piling was left in place along the east and west sides of the canal starting with 
Monolith 8 through Monolith 19 (R4, vol. I, tab Hat 3; supp. R4, tab 29; tr. 1153). 
11. By letter dated 23 August 2002, the Corps responded to appellant's earlier 
28 May 2002 inquiry stating: "The decision on where sheet piling is to remain in place 
is made on a case-by-case basis after considering all factors related to the removal of the 
sheeting" (R4, vol. I, tab I). The record shows that the parties went back and forth over 
several months about what specific "factors" should be taken into account when 
deciding to leave the sheet pilings in place (R4, vol. I, tabs J, K, L). 
12. By letter dated 15 November 2002, the Corps transmitted unilateral 
Modification No. P00033, which directed appellant to leave portions of the TRS sheet 
pilings in place at various locations along the west side of the Soniat Canal. The 
8 

modification, which did not include any change to the contract price, stated "Payment 
for work required by this change will be directed by a separate formal modification 
which will contain an agreed upon equitable adjustment." (Supp. R4, tab 26 at 2-3) 
13. On 15 January 2003, appellant filed a claim in the amount of$396,404.18 
(app. supp. R4, vol. I, tab 13). The claim included the attachment with the cost 
breakdown as previously provided with the 4 August 2002 letter (tr. 1171). 
14. By letter dated 8 April 2003, appellant advised the Corps that during 
Phase 2 construction it had exhausted all of its resources on trying to extract sheet 
pilings still embedded in the soil and that it was "due to circumstances beyond its 
control." Once it documented all of the sheet piles it was unable to remove, appellant 
advised the Corps that it would be filing a claim for the costs for the labor and 
equipment associated with the attempted removal and the materials left in the ground. 
(R4, vol. I, tab M) 
15. The Corps responded, by letter dated 21 April 2003, requesting the 
specifics of what the Corps interpreted as notice of a differing site condition so that it 
could investigate and respond accordingly (R4, vol. I, tab N). 
16. By letter dated 3 November 2003, appellant notified the Corps with regard 
to the sheet piling issue the following information: 
The Differing Site Condition that we have encountered 
falls into the category of a Type II [Differing] Site 
Condition .... 
We believe that what we encountered in the removal 
process differs materially from the contract and what we 
reasonably expected in the development of our bid on this 
project. ... 
(R4, vol. I, tab 0 at 1-2) 
17. The record shows that the Corps conducted a site investigation on 16 December 
2003. The Corps' geotechnical engineer who visited the site, Mr. Larry Dressler, opined to 
other Corps employees that appellant should drive the piles in deeper in order to break the 
adhesion, and then extract them. (R4, vol. I, tab P) There is no evidence that this 
information was passed on to appellant until 23 February 2004, when the Corps wrote a 
letter to appellant advising that appellant drive the piles deeper in order to break the seal. 
Further, the Corps requested that appellant specifically define the subsurface or hidden 
condition so that it could investigate further. (R4, vol. I, tab Q). However, appellant had 
9 

cut the sheet piles that it could not remove from the soil and had moved the TRS further 
down the canal to continue work (tr. 2/70-71 ). 
18. The record shows that the parties continued to negotiate several 
outstanding modifications and claims. By letter dated 2 November 2009, appellant 
requested that the parties meet to negotiate the unresolved claims; which consisted of 
14 items, including the sheet piling claim ($396,404.18), the flood events claim 
($1,422,728.88), and the deletion/modification of the gravity sewer line ($516,667.77). 
Appellant also submitted a claim certification for all unresolved claims over $100,000. 
(App. supp. R4, vol. II, tab 27) 
19. The parties met on 9 November 2009 to negotiate the above-mentioned 
claims. The outcome of that negotiation was memorialized in the Corps' letter to 
appellant dated 23 November 2009 which listed the government's position on each of 
the 14 items (app. supp. R4, vol. II, tab 28). The Corps stated: "At the end of the 
meeting it was requested that a Contracting Officer's Final Decision be provided for 
those items not agreed to. The Government stated that it would provide a letter within 
60 days as to when a Contracting Officer's Final Decision [COFD] would be given." 
(Id. at 1092) 
20. As the contracting officer did not issue a COFD on the sheet piling claim, 
appellant filed a notice of appeal with the Board on a "deemed denial" basis, which 
was received on 29 September 2010 and was docketed as ASBCA No. 57387. 
21. James Pittman, appellant's vice president, testified that he participated in the 
preparation of the offer which resulted in the contract at issue in the above-captioned 
appeals (tr. 1/27-28). He indicated that appellant reviewed the contract documents, 
personally visited the site, and saw no indications that they would not be able to remove 
the temporary sheet pilings from the ground (tr. 1/72). Mr. Pittman further testified that 
there were several instances during Phases 1 and 2 that the Corps paid appellant to leave 
the sheet pilings in the ground "for convenience," as "[i]t had nothing to do with 
whether we could pull them or not pull them" (tr. 1/73-74). The record shows that 
several modifications for leaving sheet piles in the ground were issued allowing 
compensation (app. supp. R4, vol. II, tab 36). 
The Government's Expert: 
22. The Corps offered Richard J. Varuso, Ph.D., as an expert in the field of 
geotechnical engineering. At the time of the hearing, Dr. Varuso was the Deputy 
Chief of the Geotechnical Branch of the Corps (tr. 2/140). After voir dire of his 
qualifications, education, and experience with other projects involving the use of sheet 
pilings, Dr. Varuso was accepted without objection as an expert in geotechnical 
engineering (tr. 2/144). 
10 

23. Dr. Varuso opined: 
The foundation conditions for this project are very typical 
of southeast Louisiana and the majority of the SELA 
[Southeast Louisiana] projects. The soils encountered 
within the borings (Son7-U through Sonl2-U) consist of 
fill and recent Holocene Age deposits underlain by older 
Pleistocene deposits. Holocene Age soils consist of inland 
swamp/marsh, interdistributary, and prodelta clayey 
deposits to approximate El. -43.5 CD. Pleistocene Age 
soils (clayey, silty, and sandy deposits) are present from 
approximate El. -43 .5 CD to the various boring termination 
depths .... 
The Contractor had to employ various methods to pull 
several of the sheet pile sections installed for the contract's 
TRSs. This is not uncommon nor should it have been 
unexpected by the Contractor given their experience as a 
contractor on similar USACE projects in southeast 
Louisiana and their 
anticipated understanding of the effects 
of pile set-up .... 
The likelihood of differing site conditions, either Type I or 
Type II, in the foundation conditions for this contract 
causing the inability to remove the sheet piles is 
improbable. 
(Supp. R4, tab 35) Dr. Varuso testified that it is not unusual to experience difficulties 
in removing sheet pilings, and he has seen contractors on other projects in the area 
"employ various methods that have been discussed here to remove those sheets" 
(tr. 21153 ). Moreover, he stated that the contractor "experienced difficulty in 
removing several sections of sheet piles in this contract, not just the 7 5 that were left in 
place" (supp. R4, tab 35 at 2). With regard to the soil conditions at the site, he further 
testified: 
Well, we had a decent number of borings on this 
contract on both sides of the canal, and then spaced evenly 
down the canal. And those borings are all very uniform, as 
much as we typically see in Southeast Louisiana. 
11 

Again, very similar soil properties, soil types 
associated with the borings that were located within this 
job, showing very consistent foundation deposits along 
Soniat Canal between 
West Napoleon and Veterans. 
(Tr. 2/156) Thus, based on the way the soils are deposited in the area, Dr. Varuso 
concluded that it is highly unlikely that variations in the soil would exist in 20-foot 
increments (tr. 2/159). He reached these conclusions after reviewing, inter alia, the 
geotechnical report dated 22 December 1997 by Eustis Engineering Company, Inc. (Eustis 
Report), which contained analysis of the soil in the Soniat Canal where the work was to be 
done (supp. R4, tab 36). The Eustis Report soil borings from the site were included in the 
contract documents (R4, vol. II, tab E). Based on the foregoing, coupled with the Corps' 
credible expert testimony, we find that the soils in the 
project area were typical for the 
Southeast Louisiana region. 
Appellant's Expert: 
24. Appellant offered Jerry Householder, Ph.D., as an expert in geotechnical 
engineering and construction management. Dr. Householder testified as to his 
experience as a professor of civil engineering at several universities, his experience 
with construction projects that involved driving and extracting temporary sheet piles, 
as well as his several publications on construction, estimating and cost control 
(tr. 1/200-02). Dr. Householder 
was accepted as an expert witness in geotechnical 
engineering and construction management without objection (id. at 205). 
25. Dr. Householder's written opinion states, that 
"[i]n the New Orleans area 
when sheet piling is to be extracted, it is common to be able 
to pull virtually all, if not 
all, of the piling" from the ground. He concludes that if the sheets could not be pulled 
"it is due to a subsurface soil condition that differs materially from that normally 
encountered and usually expected" (app. supp. R4, vol. II, tab 30). He examined the 
soil borings from the Eustis Report with regard to soil cohesion and testified that the 
cohesive qualities may vary as you move down the canal (tr. 11211-12). This 
testimony was not credible as Dr. Householder reached a conclusion based on his 
speculation that because the sheet piles could not be removed by normal means, there 
must be a differing site condition 
without indicating what the specific condition was. 
C. Findings of Fact Pertaining to ASBCA No. 57388 (Flood Events Claim) 
26. The contract also contained the following provisions: 
SECTION 01100 - GENERAL PROVISIONS 
12 

2. DAMAGE TO WORK 
The responsibility for damage to any part of the 
permanent work shall be as set forth in the Contract 
Clauses .... However, if, in the judgment of the 
Contracting Officer, any part of the permanent work 
performed by the Contractor is damaged by flood, 
earthquake, hurricane, or tornado which damage is not 
due to the failure of the Contractor to take reasonable 
precautions or to exercise sound engineering and 
construction practices in the conduct of the work, the 
Contractor shall make the repairs as ordered by the 
Contracting Officer and full compensation for such 
repairs will be made at the applicable contract unit 
price or lump sum prices as fixed and established in the 
contract. If, in the opinion of the Contracting Officer, 
there are no contract unit or lump sum prices applicable 
to any part of such work, an equitable adjustment 
pursuant to the Contract Clause entitled "CHANGES" 
will be made as full compensation for the repairs of that 
part of the permanent work. Any costs associated with 
flooding of dewatered areas as directed by the 
Contracting Officer will be paid for by an equitable 
adjustment pursuant to the contract clause entitled 
"Changes". 
(R4, vol. II, tab D at 110-11) 
SECTION 02242 - DEW ATERING 
PART 3 EXECUTION 
3.1 OPERATION 
The Contractor shall perform dewatering and maintain 
the work areas in a dry condition as long as is necessary 
for the work under this contract .... In the event that 
flooding is deemed necessary by the Contracting 
Officer, the protected area shall be flooded in 
accordance with the sequence of flooding proposed by 
the Contractor and approved by the Contracting 
Officer. . 
. . If flooding is directed by the Contracting 
13 

Officer, the Contractor will be compensated for 
damages in accordance with the applicable 
requirements of the General Provision entitled 
"DAMAGES [sic] TO WORK", and the Contract 
Clause entitled 
"CHANGES" .... 
3.4 TEMPORARY EARTHEN DAMS. 
(Id. at 224, 228) 
In order to facilitate construction, temporary earthen 
dams will be allowed in order to maintain dry working 
conditions. Temporary dams constructed of wood or 
steel sheeting will not be allowed. 
27. The term "flood event" is used to describe when the site is flooded either 
by excessive rainfall or when the CO directs the contractor to flood the work site to 
allow rainwater to flow through the canal (tr. 1120). Several contract modifications 
(A00009 - A00022, but excluding AOOO 19) were bilaterally executed in order to 
compensate appellant for "standby costs and repairs" for 109 flood events (supp. R4, 
tab 23). These modifications included payment for standby costs associated with the 
TRS and the elevated work platform, including sheet piling 
and timber mats.2 
Commencing with Modification No. P00023, the parties reached an impasse with 
regard to delay costs associated with the TRS and associated items. Accordingly, the 
government began issuing modifications that specifically excluded the following: 
"time extension costs associated with the contractor's sheetpile cofferdam, bracing and 
bridging materials, timber mats, steel forms, and pontoons which are currently in 
dispute and will be resolved by separate action" (R4, vol. II, tab C). This was based 
on the Corps' position that appellant was not incurring any standby costs on materials 
(which included the separate items that made up the TRS - "sheetpile, timber mats, 
steel forms, pontoons, bracing materials, and bridge materials") (R4, vol. I, tab U at 4). 
28. Between 15 January 2003 and 14 July 2004, appellant submitted several 
claims totaling $1,422, 728 for costs associated with flood events, each of which 
contained the following language: "The costs that are being requested reimbursed are 
required to compensate our firm for the extended 
usage of these items, just as a rental 
rate would be applicable if these items were obtained on a rental basis from an entity 
in the marketplace" (R4, vol. I, appx. at 3,passim). By letter dated 19 February 2004, 
the Corps provided the following to Pittman: 
2 As stated in footnote 1, the timber mat appeal was denied by the Board wherein we 
held that the Corps had fully compensated appellant for the delays associated 
with flood events. 
14 

The purpose of this correspondence is to address the 
outstanding issue arising from the items of costs excepted 
from settlement of Modifications P00023 ... and all 
subsequent modifications that refer back to this one. 
Specifically, you requested compensation for sheetpile, 
fabricated work platform, and other items as a result of 
these materials remaining on the job longer as a result of 
the changes. 
To date, you have failed to demonstrate that you 
have incurred any additional cost due solely to these 
materials remaining on the job longer.... Your 
representation that owned sheetpile should be compensated 
for at current market rental rates, or that interest is due on 
the investment based on the value of the materials are not 
actually incurred costs. 
(R4, vol. I, tab Z) After the Board denied the timber mat claim, appellant revised its 
claims to exclude the timber mats on 18 May 2010 to the amount of$927,204.45 
(ASBCA No. 57388, compl., ex. 4). 
29. In that revised claim, appellant also included an opinion by 
Dr. Householder, who concluded that the items at issue should be treated as support 
equipment and that the method of determining the delay costs is to use either the rental 
value of the items or one of the recognized formulas to determine delay costs (app. 
supp. R4, vol. II, tab 33, ex. B). 
30. The CO failed 
to issue a final decision on the claims and appellant filed an 
appeal to the Board from a deemed denial of the claim. It was received on 
29 September 2010 and was docketed as ASBCA No. 57388. 
D. Findings of Fact Pertaining to ASBCA No. 57688 (Gravity Sewer Claim) 
31. Under Section 02531 of the contract, appellant was required to relocate the 
existing gravity sewer line and manholes. Payment for the work was to be based on 
"completed work performed in accordance with the drawings, specifications, and the 
contract payment schedules." (R4, vol. II, tab D at 274) 
32. The contract also stated in pertinent part: 
17. UTILITIES AND IMPROVEMENTS 
a. All known utilities within the limits of the 
work, such as pipes, communication lines, power 
15 

lines, etc., that would interfere with construction 
work shall be removed, modified or relocated by the 
appropriate utility at no cost to the Contractor 
unless otherwise noted in the plans and/or 
specifications. 
(R4, vol. II, tab D at 124) 
33. By letter dated 27 January 2003, the Corps told appellant the following 
with regard to an earlier meeting between the parties: 
As discussed at the meeting, it appears that the installation 
of the 30-inch drainline will conflict in elevation with the 
gravity and force main sewer lines, however this cannot be 
determined until some exploratory work on your part is 
performed. As stated in the general notes section of the 
contract drawings, "Location of existing utilities indicated 
on the plan sheets are for informational purposes only and 
are based, in part, on information provided by the 
respective utility companies. It is the Contractor's 
responsibility to verify all existing utility locations prior to 
construction." Upon receipt of this information, we will 
provide further direction if necessary for the installation of 
the drainline. 
(Agency supp. R4, tab 8)3 
34. By letter dated 20 October 2004, appellant requested approval to use a 
trench box for the installation of the gravity sewer line and manholes, as the usage of 
timber trench system shown on the drawings may not be the best application for the 
work (agency supp. R4, tab 9). The Corps responded, by letter dated 17 December 
2004, advising that it generally had no objection to the concept of using a trench box. 
However, the Corps added the following: 
Prior to purchasing the trench box, we ask that you submit 
details of the trench box and a pipe installation plan ... for 
our information. In addition, prior to receiving approval 
3 The Corps filed a separate Rule 4 supplement entitled "Agency Supplement to 
Rule 4 File for ASBCA No. 57688 
Tabs 1-33." For ease of reference and to 
avoid confusion with the previous supplemental Rule 4 filing in ASBCA 
Nos. 57387 and 57388 (which contain several documents germane to this 
appeal), we will reference this supplement as "Agency supp. R4." 
16 

for this change, we ask that you provide the difference in 
cost between the wood and trench box shoring system. 
(Agency supp. R4, tab 10) 
35. By letter dated 15 February 2005, appellant resubmitted the 20 October 
2004 request as a "Value Engineering [Change] Proposal" (VECP) (supp. R4, tab 18). 
36. Appellant advised the Corps, by letter dated 26 April 2005, that it could not 
begin construction of the gravity force sewer main until several issues were resolved; 
including, inter alia, the drawings indicate that "the existing sewer line is about two 
feet lower than the new sewer line is shown to be installed at" and the requirement for 
a new sewer line where the existing one is working fine (agency supp. R4, tab 14 at 2). 
37. The Corps unilaterally modified the contract via Modification No. AOOl 14 
(Change Order-011 Sewer Manhole Changes), dated 12 May 2005, to have the new 
sewer line match the elevations of the existing sewer line. Appellant was directed to 
immediately proceed with these changes and "[p ]ayment for work required by this 
change will be directed by a separate formal modification which will contain an agreed 
upon equitable adjustment." (Agency supp. R4, tab 15) 
38. Appellant responded, by letter dated 20 May 2005, advising the Corps that 
it intended to perform an as-built site survey to obtain the exact elevations and provide 
it to the Corps "prior to actually proceeding to lay the utility referenced." Appellant 
further added that the costs associated with this survey will be included as part of the 
subsequent request for payment resulting from the aforementioned change. (Agency 
supp. R4, tab 16). 
39. By letter dated 17 June 2005, the Corps replied to appellant stating: "I 
have no objection to you providing as-built elevations of the sewer line provided that 
you do not create additional work beyond what is required to install the new sewer line 
and manholes at their existing elevations" (agency supp. R4, tab 17). 
40. On 26 January 2006, the VECP was incorporated into the contract under 
bilateral Modification No. P00107 and resulted in a decrease to the contract price by 
$58,712.82 (supp. R4, tab 19). 
41. On 6 March 2006, the Corps, in response to a meeting with appellant at the 
job site on 22 February 2006 where appellant expressed concerns with the gravity 
sewer installation and the possibility of a differing site condition, stated the following: 
I believe the remaining work is essentially the same 
work as was bid. I understand there may be some changes 
that have been made such as house connections made to 
17 

the sewer after the project started, etc. We are also aware 
that the sewer line will pass beneath a conflict box141 and 
that some manholes have been removed. We will address 
these issues as they are verified during construction of the 
sewer. Some changes to the work were directed by 
modification AOOl 14. 
You should proceed with the work as required in the 
contract. If you encounter conditions such as those cited 
above or other conditions that meet the requirements of 
Contract Clause 52.236-2, Differing Site Conditions, you 
should notify me in writing as required by this clause. 
(Agency supp. R4, tab 18) 
42. Appellant responded, by letter dated 14 March 2006, reiterating that it had 
determined that there are differing site conditions present with respect to both the 
vertical and horizontal location of the gravity sewer line and the sewer force main, and 
alerted the Corps that the government "must now take action to address this problem 
prior to [appellant] moving forward and proceeding with this work" (agency supp. R4, 
tab 19). 
43. The Corps issued a "SHOW CAUSE" notice to appellant dated 3 April 
2006, wherein it informed appellant that it had not 
established a differing site 
condition because it failed to provide any specific evidence that "the alignment of the 
gravity sewer line and the sewer force main differ[ ed] substantially from that presented 
in the plans so as to materially alter the character of the work required." Accordingly, 
the Corps gave appellant ten days to provide its plans and schedule to complete all of 
the work required under the contract, which included the replacement of the gravity 
sewer line. The Corps calculated 31 January 2006 as the contract completion date, 
which included time extensions for weather and pending modifications. However, the 
Corps gave appellant until 1 June 2006 to complete all work. The Corps added: "If 
you fail to provide your schedule to complete the work ... your right to proceed will be 
terminated." (Agency supp. R4, tab 20) 
44. By letter dated 7 April 2006, appellant notified the Corps that it had 
completed work on the project and requested a final inspection be performed as soon 
as possible (agency supp. R4, tab 21). Appellant later requested, by letter date 
20 April 2006, a pre-final inspection and that the Corps generate a punch list of items 
4 A "conflict box" is "typically a box that you would install at a location where you 
have multiple utilities, and you may want to change direction of one of the 
utilities" (tr. 2/108). 
18 

that remained to be completed, asserting that the work was "99 % complete" (agency 
supp. R4, tab 22). 
45. Meanwhile, the record reflects that appellant contacted the Jefferson Parish 
Department of Sewage by letter dated 5 May 2006 and requested that they formulate a 
plan to: (a) remove, modify or relocate the existing 8" sewer force main (as appellant 
could not do the work itself pursuant to the project plans and its contract 
specifications); and (b) replace four of the originally constructed manholes along the 
existing 12" gravity sewer line (because appellant had originally planned to utilize all 
of the manholes for the gravity sewer work under the contract) (agency supp. R4, 
tab 24). 
46. On 2 June 2006, the Corps issued 
a "Second Show Cause" notice, which 
gave appellant another ten days to present a plan and schedule to get the remaining 
work completed. The Corps added: "If you miss this deadline without a suitable 
response, I will have to conclude that you are unable or unwilling to pursue the 
remaining work and I will take appropriate action." (Agency supp. R4, tab 25) 
47. By letter dated 15 June 2006, appellant responded to the Corps' show cause 
letters stating the reasons for its inability to complete the work (agency supp. R4, 
tab 26). Appellant also referenced several events that took place and documents 
relating to those events, including a pre-final inspection that occurred on 5 May 2006 
and a final inspection on 2 June 2006. However, the record does not contain evidence 
of the referenced events or evidence of the contents of the documents relating thereto. 
(Id. at 13) We find that appellant demobilized from the site on 10 June 2006. 
48. The record further shows that the parties met in August of 2006 to discuss 
outstanding issues and to finalize the project (agency supp. R4, tab 27). By letter 
dated 3 October 2006, the Corps addressed the outstanding gravity sewer line 
issue as 
follows: 
In our letters dated April 3, 2006 and June 2, 2006, you 
were given an opportunity to complete the required sewer 
line work. Since you have failed to complete the sewer 
line work, a contract modification will be issued to delete 
the removal and replacement of the gravity sewer line. 
You will be requested to provide a proposal for deleting 
this work .... Based on our estimates and available 
information, I believe that the credit owed to the 
Government for deleting the remaining work is greater 
than the remaining amounts owed under the original 
contract and the total amount of all outstanding 
19 

modifications. Therefore, there will be no further payments 
issued under this contract pending final resolution. 
(Agency supp. R4, tab 28) 
49. The parties continued to settle outstanding issues under the contract. By 
letter dated 22 April 2009, the Corps addressed the outstanding issue of the gravity 
sewer line work. The CO stated: "Since you have failed to complete replacement of 
the sewer line, I am proceeding with a separate construction contract to accomplish the 
work." (Agency supp. R4, tab 29) The Corps attached a proposed bilateral 
modification to delete the work from the contract, which 
would have resulted in a 
decrease of$155,289.46 in the total contract price (app. supp. R4, vol. II, tab 18). 
50. On 24 April 2009, the deleted gravity sewer line work was awarded to 
B&K Construction Co., LLC (B&K) via 
modification to its existing Soniat Canal 
contract (W912P8-07-C-0007) for $953,845.10 (app. supp. R4, vol. II, tab 26; 
tr. 21197, 199). Included in the modification were several drawings created by 
appellant showing conflict box installation and location of the existing gravity sewer 
line and the sewer force main (app. supp. R4, tab 26 at CRP 1080-86; tr. 21114-16). 
51. Appellant responded on 11 May 2009, disagreeing with the CO's position 
stating: 
At no time has [appellant] refused to complete this work, in 
fact, as clearly indicated by our litany of correspondence 
dating as far back as October 2004, [appellant] has shown due 
diligence, asking the [Corps] for Information and Direction, 
as required by the contract when faced with a situation where 
Changed Conditions are found to exist on a contract. 
Accordingly, appellant did not sign the proposed modification. (Agency supp. R4, 
tab 30) 
52. By letter dated 18 September 2009, the CO informed appellant that the 
deletion of the sewer line work was based on its "refusal to perform the work as 
required" by the contract, and thus was deemed abandoned. The CO also cancelled 
Modification No. AOOl 14 (Change Order-011, Sewer Manhole Changes), which was for 
work to the sewer line manholes that was never accomplished. Appellant was further 
advised that the Corps had made other arrangements to accomplish the unfinished work 
on the sewer line. Enclosed with the letter was unilateral Modification No. P00121, 
which decreased the contract by a sum total of$155,289.46. (Agency supp. R4, tab 31) 
Based upon the foregoing, we find that, other than the conflict box work, 
appellant did 
not accomplish any of the work on the gravity sewer line. 
20 

53. Appellant responded to the Corps decision, by letter dated 23 September 
2009, contending that the Corps had breached the contract by the issuance of unilateral 
Modification No. P00121. Specifically, appellant alleged that it promptly advised the 
Corps of "the discrepancies between the contract documents and the actual condition 
and location and obstructions related to the installation of the gravity sewer line"; and 
that the issuance of Change Order-011 confirmed that a material difference did exist. 
Appellant disputed the Corps' contention that it refused to complete the work, pointing 
out that the Corps, over a period of several years, had demonstrated an unwillingness 
to negotiate the outstanding issues. (Agency supp. R4, tab 32) 
54. By letter dated 15 October 2009, appellant's counsel requested a settlement 
conference for all outstanding issues under the Soniat Canal project including the 
deletion of the gravity sewer line work, which was quantified as $516,667.77 (app. 
supp. R4, vol. II, tab 22). This amount included the following: ( 1) "POOH" (field 
office overhead) $206,866.98; (2) "Change Order Value" $155,289.46; (3) "Accrued 
Interest" $61,515.37; and (4) other markups (21.95%) $92,995.96 (app. supp. R4, 
vol. II, tab 20 at CRP 1025). On 2 November 2009, appellant requested a COFD on 
the outstanding claims, including the deletion of the gravity sewer line and certified all 
claims over $100,000 (agency supp. R4, tab 3). 
55. On 22 April 2011, the CO issued a decision denying the claim for the 
gravity sewer line in its entirety. The COFD did not address appellant's claim 
regarding the existence of a differing site condition. (Agency supp. R4, tab 1; 
tr. 2/267) However, we find that the issue was, by implication, before the CO for 
consideration as it was the reason that appellant would not proceed with the work. 
Appellant filed a notice of appeal on 19 July 2011, which the Board docketed as 
ASBCA No. 57688. 
DECISION 
ASBCA No. 57387 Sheet Piling Claim 
Appellant contends that it encountered a Type II differing site condition, and 
thus it is entitled to payment for the costs related to the 7 5 sheet pilings it was "forced" 
to leave in the ground (app. hr. at 1). Appellant alleges that it encountered an 
unknown physical condition at the site and tried a number of extraordinary measures 
to extract the piles (id. at 2). Because all other variables remained constant in the 
equipment, materials and methods used to drive and extract these temporary sheet 
pilings, appellant concludes that it had encountered a Type II differing site condition -
"namely, strata of subsurface soils with excessively strong adhesive qualities, which 
were unusual and unknown, and which differed materially from the soils that [it] 
ordinarily encountered in the greater New Orleans area while driving and extracting 
temporary sheet piling" (id. at 3). 
21 

The Corps counters that appellant has not "identified the specific differing site 
condition to which it alludes, but relies on the assertion that, since it took all 
reasonable steps to extract the sheet pilings but could not do so, the only remaining 
explanation must be the existence of a Type II differing site condition" (gov't. br. 
at 13 ). The Corps alleges that appellant did not conduct an investigation into the 
subsurface conditions at the job site, and has not offered any specifics as to the alleged 
differing site condition that prevented it from removing the sheet pilings. Thus, the 
Corps concludes that appellant has failed to meet its burden to establish the existence 
of a Type II differing site condition. (Id. at 35-36) Moreover, the Corps further adds 
that appellant has not demonstrated that it incurred costs due to the inability to remove 
the sheet pilings because it invoiced the full cost of these items through progress 
payments (id. at 55). 
A contractor asserting a Type II differing site condition claim is "confronted 
with a relatively heavy burden of proof." Huntington Construction, Inc., ASBCA 
No. 33526, 89-3 BCA ~ 22,150 at 111,479 (citing Charles T. Parker Construction 
Co. v. United States, 433 F.2d 771 (Ct. Cl. 1970)). In order to qualify as a Type II 
differing site condition, "the unknown physical condition must be one that could not 
be reasonably anticipated by the contractor from 
his study of the contract documents, 
his inspection of the site, and his general experience[,] if any, as a contractor in the 
area." Randa/Madison Joint Venture Ill v. Dahlberg, 239 F.3d 1264, 1276 (Fed. Cir. 
2001) (quoting Perini Corp. v. United States, 381F.2d403, 410 (Ct. Cl. 1967)). 
The contract documents and soil borings clearly show the soil was typical for the 
area (finding 23). Contract borings are the most significant indicator of subsurface 
conditions. Nova Group, Inc., ASBCA No. 55408, 10-2 BCA ~ 34,533 at 170,322. We 
agree with the government's expert that it is highly unlikely that based on the soil borings 
in the contract, variations in the soil would exist in 20 foot increments. What was 
apparent was that appellant could not remove some of the pilings using its usual means 
and methods of extraction. The plain fact that they could not be removed does not 
necessarily mean, absent further evidence, that it must be as appellant contends. Here, 
appellant has offered no further evidence to prove its case that the inability to extract the 
piles was caused by a Type II differing site condition. Appellant speculates that because 
it had difficulty removing some of the sheet pilings, a Type II differing site condition 
must have existed. Its proof of the differing site condition consists solely of its difficulty 
in removing sheet pilings. This circular argument cannot prevail. Thus, appellant has 
failed to meet its burden that it encountered a Type II differing site condition. 
Appellant further contends that because it was previously compensated for 
leaving pilings in the ground at various other points along the work site that it proves 
that the Corps "recognized that these sheet pilings were an asset that belonged to 
Pittman, and Pittman was entitled to an equitable adjustment for the loss of this asset" 
(app. reply br. at 12). We disagree. To the extent that appellant argues that its "prior 
course of dealing" with the government should dictate the outcome of this matter, we 
22 

disagree. In our previous decision under the timber mat claim, under the subject 
contract, we stated the following: 
Section 223(1) of the Restatement (Second) of 
Contracts (1981) defines a course of dealing as: "a 
sequence of previous conduct between the parties to an 
agreement which is fairly to be regarded as establishing a 
common basis of understanding for interpreting their 
expressions and other conduct." Section 1-205(1) of the 
Uniform Commercial Code (U.C.C.) defines "a course of 
dealing" as: "a sequence of previous conduct between the 
parties to a particular transaction which is fairly to be 
regarded as establishing a common basis of understanding 
for interpreting their expressions and other conduct." The 
courts have held that a single transaction cannot 
constitute a "course of dealing" within the meaning of 
U.C.C. § 1-205(1). See International Therapeutics, Inc. v. 
McGraw-Edison Co., 721 F.2d 488, 492 (5th Cir. 1983); 
Product Components, Inc. v. Regency Door and Hardware, 
Inc., 568 F. Supp. 651 (S.D. Ind. 1983). We have said in 
Western States Construction Company, Inc., ASBCA 
No. 37611, 92-1BCAii24,418 at 121,894: 
While there is no magic number of contracts that 
must be performed before this principle is 
applicable, the parties' prior dealings must be 
regular and/or numerous enough to cause a 
reasonable expectation that the conduct relied 
upon was not mere accident or mistake, but was 
the performance actually expected by the other 
party. 
C.R. Pittman, 08-1 BCA ii 33, 777 at 167, 178. The record demonstrates that these 
other instances of compensating appellant to leave pilings in the ground were done 
bilaterally under the Changes clause (app. supp. R4, tab 36). We assume that the 
Corps made a decision in its best interest and discretion to leave those pilings in place. 
With regard to the pilings that are the subject of the claim at issue, leaving the pilings 
in the ground was done for appellant's convenience - i.e., it could not remove them; 
and not for the benefit of the Corps. The fact that the Corps chose to compensate for 
one and not the other was reasonable. 
As appellant failed to prove the existence of a Type II differing site condition, 
the alleged crane damage due to excessive effort to remove the questioned sheet 
pilings is also denied. 
23 

ASBCA No. 57388 Flood Events Claim 
Appellant alleges that it is entitled to the standby costs associated with the TRS 
remaining on the job longer than anticipated. Unlike the timber mats (which were 
deemed "material" by the Board in C.R. Pittman, 08-1BCA,33,777 at 167,177-78, 
and thus consumed), appellant contends that the TRS is similar to items listed in the 
equipment schedule (EP 1110-1-8) such as work barges and platforms (app. br. at 14). 
Because appellant supplied its own TRS platform and the project went beyond the 
original 900 contract days, appellant 
believes that it "is entitled to an equitable 
adjustment to compensate it for the ownership and operating costs associated with its 
investment in this equipment" (id. at 18). 
The Corps concedes that appellant did incur costs associated with delays due to 
the 109 flood events. However, the Corps avers that it already compensated appellant 
for those delays and appellant has failed to establish that it is entitled to anything 
further. (Gov't br. at 20) Specifically, the Corps contends that appellant recovered the 
full purchase and fabrication cost of the TRS and the elevated work platform, etc., 
through progress payments (id. at 21, 23). With regard to the classification of the TRS 
and other items mentioned above as equipment, the Corps believes that this 
classification is only relevant to determine quantum, not entitlement (id. at 26). Once 
appellant has recovered 
the full value of the item, regardless of the classification of the 
item as equipment or materials, through progress payments, the Corps contends, "it no 
longer has an ownership cost associated with that item" (id. at 28). To support its 
proposition, the Corps cites Hicks & Ingle Co. of Va., Inc., ASBCA No. 39711, 90-2 
BCA, 22,897, where we held that the clear language of the payments clause of that 
contract dictated that equipment that was fully paid for via progress payments became 
the sole property of the government. 
Appellant replies that the Corps "bought" the use of the TRS on a lump sum 
basis for 900 days. The invoices submitted to the Corps did not represent the full cost 
of purchasing and fabricating the TRS and construction bridge. (App. reply br. at 2; 
tr. 11158-59) Appellant distinguished Hicks by pointing out that in the present case, 
the Corps never claimed that it was entitled to keep the construction bridge and TRS 
after the Soniat Canal job was completed; while in Hicks, the government did in fact 
make such a claim (app. reply br. at 6). 
Contrary to the Corps' assertion, the ultimate question of whether the 
ownership costs for the TRS and associated items are allowable under the contract 
does indeed boil down to whether the items can be categorized as equipment (and thus 
an allowable delay cost under the contract) or materials. Appellant's expert, 
Dr. Householder, explained that in the construction industry, the standard term 
"equipment" is used to define all items brought to the job to assist in the construction 
process. Equipment can be broken down into two categories: (1) production 
24 

(equipment brought to the job to accomplish a single purpose); and (2) support 
(equipment brought to the job to assist in the work - i.e., scaffolding). Thus, 
Dr. Householder opined that the sheet piling, bridge sections, and structural bracing 
are support equipment. (App. supp. R4, vol. II, tab 29 at CRP 1098) 
The Corps did not offer any expert testimony, but does point to several 
references in the record as well as a previous decision to dispute appellant's expert 
opinion. Specifically, the Corps alleges that the work platform/IRS was not simply 
constructed to assist in the performance or execution of the contract work, but was a 
required feature of the contract work. It cites that the government estimators 
considered all of the TRS components, including the sheet piles and structural bracing 
as well as all items that went into the construction of the elevated work platform to be 
materials. (R4, vol. I, tab T) Moreover, the sheet piling descriptive literature and 
leasing agreement with SkyLine Steel referenced them as construction materials (supp. 
R4, tab 15 at 3) or "materials" (app. supp. R4, vol. I, tab 17). The Corps cites a 
previous decision from the Engineer Board that refers to sheet piles as "materials." 
See JA. Jones Construction Co., ENG BCA No. 6348 et al., 00-2 BCA if 31,000. 
Finally, the Corps refers to the equipment manual (EP 1110-1-8) and notes that it 
contains no equipment that is remotely similar to the work platform/IRS. Thus, the 
Corps concludes that the function of the work platform/IRS does not accord with the 
common sense understanding of the term "equipment" and appellant's position is not 
well taken. (Gov't reply br. at 47-49) We agree. 
The Corps viewed these items as materials and appellant never questioned their 
categorization until the cost dispute arose. We are unpersuaded by appellant's 
arguments and evidence to the contrary. Accordingly, we hold that the TRS system 
consisted of materials that did not transform into equipment when put together into an 
elevated platform and temporary retaining structure. As such, the appeal is denied. 
ASBCA No. 57688 Gravity Sewer Claim 
Appellant contends that it encountered a Type I differing site condition with 
regard to the gravity sewer line portion of the contract because there was a variation 
between the expected conditions and what it actually encountered at the site. 
Specifically, the contract drawings showed that the gravity sewer line running parallel 
to the sewer force main, while in actuality the gravity sewer line ran underneath the 
sewer force main, in some places, and approximately two feet lower than the elevation 
in the contract. (App. br. at 29) Thus, appellant contends that requiring a contractor 
"to proceed with the work and to assume responsibility for any damage that might 
occur, without agreeing in advance to compensate Pittman for repairing this damage, is 
a breach of contract, and is contrary to the purpose of the Differing Site Conditions 
Clause." To support its proposition that it did not have a duty to proceed with 
25 

construction until the issue was settled, it cites J. Parr Constr. & Design, Inc. v. 
United States, 996 F.2d 319 (Fed. Cir. 1993) (table)5 as authority. (App. br. at 30) 
The Corps argues that appellant has not met its burden of proof to establish the 
existence of a differing site condition because it presented no evidence that it reasonably 
relied upon its interpretation of the contract and contract-related documents. Moreover, 
the Corps contends that the record is devoid of evidence showing the "differing" 
condition it actually encountered in the field; appellant relied on "conclusory statements 
and vague and unsubstantiated allegations." Furthermore, the Corps avers that the 
drawings that appellant prepared for the installation of conflict boxes that showed the 
existing utilities (Pittman drawings), including the gravity sewer and sewer force main 
were "three and a half feet" (tr. 2/114-15) to "five foot, eight inches" apart (tr. 2/55-56). 
Further 
testimony from the ACO (Stephen Hinkamp) and the project engineer (Robert 
Guillot) for the canal work indicated that the distances between the lines on the Pittman 
drawings were similar to what was indicated on the contract drawings (gov't br. at 49-
50). Finally, appellant did not incur any costs associated with its claim because it did not 
perform the gravity sewer line work (id. at 54 ). 
Although not addressed in the COFD, appellant's Type I differing site condition 
claim is intertwined with its breach of contract claim. During the hearing, the CO 
testified with regard to the reasons appellant's claim was denied: "I didn't deny the 
claim for any reason related to the ... alleged differing site condition .... I found the 
claim didn't have merit because C.R. Pittman didn't install the sewer line and did 
nothing to expose whatever differing site condition that they felt existed." (Tr. 2/267) 
Thus, the Type I differing site condition claim was denied by implication (finding 55). 
To recover under a Type I differing site condition claim, the contractor bears 
the burden of proof showing that conditions actually encountered differed materially 
from those "indicated" in the contract. Foster Constr. C.A. & Williams Bros. Co. v. 
United States, 435 F.2d 873, 881 (Ct. Cl. 1970). A contractor cannot be eligible for an 
equitable adjustment for Type I changed conditions unless the contract indicated what 
those conditions would supposedly be. P.J Maffei Bldg. Wrecking Corp. v. United 
States, 732 F.2d 913, 916 (Fed. Cir. 1984); S.T.G. Construction Co. v. United States, 
157 Ct. Cl. 409, 414 (1962). 
Here, appellant fails to meet that burden. It could not offer any proof of what it 
encountered because it never began construction (finding 52). The applicable contract 
clause and numerous cases all contemplate that a comparison between the drawings 
and what was actually encountered at the site must be done in order to prove that a 
5 Appellant cites to the tables showing that the Federal Circuit affirmed "without 
opinion" the Court of Federal Claims decision. However, the tables are not 
citeable as precedent. Thus, we discuss the case reported below at 24 Cl. Ct. 
228 (1991). 
26 

material difference exists. Appellant cannot prevail on a differing site condition 
without this crucial piece of the puzzle. Thus, appellant's arguments must fail. 
Appellant's reliance on J Parr Constr. is misplaced as that case stands for the 
proposition that the duty to proceed with work under a contract is not absolute when 
conditions at the job site differ materially from those in the contract so that a 
contractor possesses a reasonable fear of danger. In J Parr Cons tr., the contractor 
was terminated for default because it abandoned the project (due to unfounded safety 
concerns), poor work quality, and failed to comply with environmental regulations. 
This is not applicable to the instant appeal as appellant never notified the Corps that it 
was not safe to do the contractually-required work. 6 
Further, the Corps' action to descope the contract to award the work to B&K 
was also reasonable. The record shows that the Corps awarded the work to B&K on 
24 April 2009, nearly three years after appellant had demobilized the work site 
(finding 47) and the government had considered the work abandoned. Accordingly, 
appellant's breach of contract claim is denied. 
The appeals are denied. 
Dated: 4 February 
2015 
I concur 
Administrative Judge 
Acting Chairman 
Armed Services Board 
of Contract Appeals 
CONCLUSION 
OWEN C. WILSON 
Administrative Judge 
Armed Services Board 
of Contract Appeals 
RICHARD SHACKLEFORD 
Administrative Judge 
Vice Chairman 
Armed Services Board 
of Contract Appeals 
6 In any event, Court of Federal Claims decisions are not binding precedent for this 
Board. 
27 

I certify that the foregoing is a true copy of the Opinion and Decision of the 
Armed Services Board of Contract Appeals in ASBCA Nos. 57387, 57388, 57688, 
Appeals of C.R. Pittman Construction Co., Inc., rendered in conformance with the 
Board's Charter. 
Dated: 
28 
JEFFREY D. GARDIN 
Recorder, Armed Services 
Board of Contract Appeals