Buck Town Contractors & Co.
Docket: ASBCA 60939
Decision date: 2018-01-11

ARMED SERVICES BOARD OF CONTRACT APPEALS 
Appeal of --
Buck Town Contractors & Co. 
Under Contract No. W912P8-09-D-0052 
APPEARANCES FOR THE APPELLANT: 
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APPEARANCES FOR THE GOVERNMENT: 
ASBCA No. 60939 
W. Lee Kohler, Esq. 
Douglas A. Kewley, Esq. 
Thomas F. Gardner, Esq. 
Gardner & Kewley, APLC 
Metairie, LA 
Thomas J. Warren, Esq. 
Acting Engineer Chief Trial Attorney 
William G. Meiners, Esq. 
Stephen S. Bland, Esq. 
Engineer Trial Attorneys 
U.S. Army Engineer District, New Orleans 
OPINION BY ADMINISTRATIVE JUDGED' ALESSANDRIS 
ON APPELLANT'S MOTION FOR PARTIAL SUMMARY JUDGMENT 
The United States Army Corps of Engineers (Corps or government) contracted with 
Buck Town Contractors & Co. (Buck Town) to reconstruct a hurricane protection levee in 
St. Charles Parish, Louisiana. Buck Town subcontracted the work in question to Circle 
LLC (Circle). The contract required placement of a layer of geotextile material at the base 
of the levee, and that the geotextile be provided in continuous machine-direction lengths 
without seams, with all seams and overlaps to be installed perpendicular to the centerline of 
the levee. For reasons of efficiency related to the length of the rolls of geotextile material 
used on the project, every third row of geotextile material on the levee installed by Circle 
consisted of two strips of material joined by an overlap running parallel to the centerline of 
the levee. The Corps objected to this method only after one segment of the levee was 
complete (and the geotextile buried) and another segment had a large part of the geotextile 
installed. Buck Town was required to remedy this situation by the Corps, leading to the 
dispute now before us. 
Buck Town moves for partial summary judgment on an issue of contract 
interpretation, seeking a holding that the contract permitted the use of partial rows of 

geotextile. We deny Buck Town's motion. 1 We find that the plain language of the contract 
does not permit the use of overlaps parallel to the centerline of the levee.2 
STATEMENT OF FACTS FOR PURPOSES OF THE MOTION 
On 28 September 2009, the Corps awarded to Buck Town under Multiple Award 
Task Order Contract No. W9I2P8-09-D-0052 (the contract), Task Order No. 0004, for 
construction of Reach IA, part of a hurricane protection levee in St. Charles Parish, 
Louisiana (R4, tab 2). Buck Town subcontracted work, including, geotextile placement, to 
Circle (Statement of Genuine Issues (SGI) ii 2). The task order for Reach IA required a 
layer of geotextile material covering an area approximately I20-feet wide by 2,900-feet 
long (R4, tab 79 at I 890). 
The contract's specification for reinforcement geotextile provided, in relevant part: 
.3. I . I Procedure 
The geotextile shall be installed to the lines and grades 
as shown on the contract drawings. Objects, or debris 
that are capable of damaging the geotextile shall be 
removed before the geotextile is placed. At the time of 
installation, the geotextile shall be rejected if it has 
defects, rips, holes, deterioration, or damage which was 
incurred during manufacture, transportation, or storage. 
The geotextile shall be installed with the seams facing 
up to allow for visual inspection. All seams and 
overlaps shall be placed perpendicular to the centerline 
of the levee. Fill shall not be placed on the geotextile 
until the seams or overlaps are within 5 degrees of being 
perpendicular to the levee centerline and all sags and 
wrinkles are removed from the geotextile. The 
Contractor shall take precautions to avoid damaging the 
geotextile during placement. 
1 The present motion concerns only ASBCA No. 60939, which is consolidated with 
ASBCA Nos. 60940 and 6094 I. Buck Town initially filed a second motion for 
summary judgment in ASBCA No. 6094 I, regarding a dispute as to whether it was 
required to replace certain geotextile based upon testing of the fabric's tensile 
strength. Buck Town withdrew that motion on 2 October 20I 7. 
2 The Corps did not cross-move for summary judgment, so we deny Buck Town's motion, 
but do not enter summary judgment in favor of the Corps. 
2 

3.3.1 Seams 
Geotextile panels shall be sewn along the selvedged 
edges so that seams run parallel with the machine 
direction to produce geotextile pieces that are wider than 
the weaving machine produces. Geotextiles shall be 
supplied in continuous machine direction lengths 
without seams. All seams shall be made with thread that 
meets the requirements for plastic yam, as specified in 
paragraph GEOTEXTILE REQUIREMENTS. The 
Contractor is responsible for choosing the sewing 
machine, thread, stitch type, number of stitches per inch 
and any other particulars that are required to achieve the 
seam strength that is specified in Table 1. 
3 .3 .1. 1 Damaged Seams 
Rips in seams that occur as a result of placement, and 
which are less than two feet from the end of the 
geotextile panel do not require repair. Rips that are 
longer than two feet, or of any length that occur at 
locations that are more than two feet from the end of the 
panel, shall be repaired by placing a single layer of 
geotextile of the same strength to cover the entire 
affected seam. The piece of geotextile shall extend a 
minimum of five feet on each side of the damaged seam. 
3 .3 .2 Overlaps 
Overlaps may be used at [points of intersection 3] or to 
join pieces of geotextile that become too heavy to handle 
with construction machinery. All overlaps shall run in 
the same direction as the seams. A minimum of two feet 
is required at each overlap. 
(R4, tab 5 at 110-12) In December 2009, Buck Town submitted to the Corps a geotextile 
fabric placement plan with a plan view showing overlapping, full length panels installed 
perpendicular to the centerline of the levee (R4, tab 6). 
In January 2010, Circle placed the geotextile material in Reach IA of the levee (R4, 
tabs 8, 9). Circle used 15' x 300' rolls of geotextile material for the project (R4, tab 11 ). 
To minimize waste from the 300' rolls of geotextile, Circle typically placed two 120', 
3 A point of intersection is where the centerline of the levee changes direction. 
3 

full-length panels, and one 60', partial-length panel, from each roll. In rows that used two 
partial-length panels, Circle joined the panels with a 2' overlap. (R4, tab 2 at 20; SGI ,-r 6) 
To prevent ultraviolet radiation damage, each day Circle would place the first layer of fill 
over the newly-placed geotextile, covering the overlaps from view (R4, tab 8). 
Several representatives of the Corps, including quality assurance inspectors, were on 
site at various times while Circle placed the geotextile material in Reach IA (R4, tab 8; app. 
supp. R4, tab 33). Buck Town's quality control reports, submitted to the Corps, included the 
statement that "2' overlapping was applied at every ?djoining new roll of geotextile" (R4, 
tab 8; app. supp. R4, tabs 9, 11, 13, 21, 23, 25, 27, 29, 31, 33, 35). The Corps' quality 
assurance inspectors did not raise any issues with Circle's geotextile placement (R4, tab 9; 
app. supp. R4, tabs 10, 12, 14, 22, 24, 26, 28, 30, 32, 34, 36). During February and 
March, 2010, Circle continued to place embankment fill over the geotextile (comp I. ,-i 121, 
answer ,-i 121). By 24 March 2010, Circle had placed roughly seven feet of embankment fill 
along the entire levee crest covering the geotextile (app. supp. R4, tab 129). 
Under a different task order, Task Order No. 0005, Buck Town and Circle constructed 
a second reach of the same levee, referred to as Reach 2A (app. supp. R4, tab 5). On I 0 
March 2010, during the Reach 2A Geotextile Preparatory Phase Meeting, Buck Town and 
Circle discussed with Mr. Otho Barnes, P.E., a Corps engineer, that, the "material for two (2) 
rows will be installed in complete/whole 90' sections. Every third row/panel an overlap will 
be required at the parallel seam/lap." (App. supp. R4, tab 47)4 From 16-24 March 2010, 
Circle placed roughly 40 percent of the geotextile on the Reach 2A project, including some 
geotextile rows with overlaps joining two partial-length panels ( compl. ,-i,-i 143, 148, answer 
,-r,-r 143, 148). 
During a 24 March 2010 site visit, Mr. Barnes informed Circle that "reinforcement 
geotextile may be installed incorrectly, and that no seam splicing should occur, when being 
placed" (app. supp. R4, tab 58). An unsigned copy of the Corps' 24 March 2010 quality 
assurance report5 states: 
Circle ... had been installing the fabric where when the end of 
the, usually 300' roll of fabric came, the next roll was 
overlapped 2' with a seam running parallel to levee centerline 
and the installing of fabric continued. What should have 
occurred is that no pieces or panels of fabric should have been 
installed if they were less than 90' wide. That's the distance 
across the bottom of the degraded levee. If done in that 
manner, no parallel to centerline seams would have occurred . 
. 4 Reach 2A was 90' across whereas Reach IA was 120'. 
5 A signed copy of the 24 March 2010 quality assurance report, apparently provided 
contemporaneously to Circle, does not contain the cited language (app. supp. R4, 
tab 57). 
4 

(R4, tab I I) Circle removed and replaced the geotextile that had been incorrectly placed 
on Reach 2A (R4, tab 2 at 5). On 25 March 20 I 0, the Corps issued Contract Deficiency 
Notice No. I on the Reach IA Project contending that Buck Town was in "violation of 
specification section 3 I 05 I 9 .05 I 2, paragraph 3. I. I by installing reinforcement geotextile 
overlaps parallel to the centerline of the levee" (R4, tab I2). 
On I9 November 20IO, the administrative contracting officer,Mr. Jeffrey Falati, 
ordered Buck Town to reconstruct the Reach IA levee (R4, tab 33). On 28 December 
2010, Buck Town submitted a Notice of Claim for Constructive Change. On 24 January 
20I I, Buck Town submitted a Request for Equitable Adjustment. On 7 February 20I I, the 
contracting officer rejected Buck Town's Request for Equitable Adjustment. (R4, tab 2 at 
13) Buck Town submitted a claim on 22 March 20I6 that was denied by the Corps' 
contracting officer on 20 September 20I6 (R4, tab 2 at 18, 30). This appeal followed. 
DECISION 
Board Rule 7(c)(2) provides that we look to FED. R. CIV. P. 56 for guidance in 
deciding motions for summary judgment. We will grant summary judgment only ifthere is 
no genuine issue as to any material fact, and the moving party is entitled to judgment as a 
matter oflaw. Celotex Corp. v. Catrett, 477 U.S. 3I7, 322 (1986). A material fact is one 
that may affect the outcome of the decision. Anderson v. Liberty Lobby, Inc., 477 U.S. 
242, 248-49 (I986). The moving party bears the burden of establishing the absence of any 
genuine issue of material fact, and all significant doubt over factual issues must be resolved 
in favor of the party opposing summary judgment. Mingus Constructors, Inc. v. United 
States, 812 F.2d 1387, 1390-91 (Fed. Cir. 1987). Once the moving party has met its 
burden of establishing the absence of disputed material facts, then the non-moving party 
must set forth specific facts, not conclusory statements or bare assertions, to defeat the 
motion. Pure Gold, Inc. v. Syntex (US.A.), Inc., 739 F.2d 624, 626-27 (Fed. Cir. 1984). 
Buck Town asserts that the plain meaning of the contract permitted it to place the 
geotextile across the levee with non-full-length pieces so long as the material was properly 
overlapped. Buck Town's interpretation relies upon its asserted "plain meaning" of the 
term "placed" as "to put in a particular position." Thus, Buck Town argues that it satisfied 
the contractual requirement of "placing" the material perpendicular to the centerline of the 
levee because it unrolled the geotextile in a direction that was perpendicular to the levee. 
(App. br. at l I-15) The government asserts that the plain meaning of the contract prohibits 
the use of partial-length pieces of geotextile because it creates an overlap that is not 
perpendicular to the centerline of the levee (gov't br. at 4-5). 
Contract interpretation is a matter of law. See, e.g., ThinkQ, Inc., ASBCA 
No. 57732, 13 BCA if 35,221 at I 72,825. In interpreting a contract, we begin with the plain 
language of the contract. See, e.g., Banknote Corp. of America, Inc. v. United States, 365 
F.3d 1345, 1353 (Fed. Cir. 2004). An additional canon of contract interpretation is that the 
5 

contract should be read as a whole, harmonizing and giving meaning to all provisions. 
ThinkQ, 13 BCA ~ 35,221 at 172,825 (citing NVT Technologies, Inc. v. United States, 370 
F.3d 1153, 1159 (Fed. Cir. 2004)). 
Here, the geotextile specifications clearly provide that "[a]ll seams and overlaps shall 
be placed perpendicular to the centerline of the levee" (R4, tab 5, ~ 3.1.1). Buck Town, in 
arguing the plain meaning of the provisions states that "[i]n lieu of utilizing seams to widen 
the material, as long as the machine-direction axis of the material was oriented 
perpendicular to the centerline of the levee, the Contract allowed Circle to 'join pieces of 
geotextile' by using 2' overlaps of adjacent panels" (app. br. at 14). As an initial point, we 
disagree with Buck Town's proffered interpretation of the contract as permitting overlaps 
parallel to the centerline of the levee so long as the geotextile was unrolled in a direction 
perpendicular to the centerline of the levee. Here Buck Town cites the Oxford dictionary 
definition of the word "placed" as "put in a particular position," supposedly supporting its 
interpretation of the contract that "placed" only governed the means by which it was 
installed (app. br. at 13). We read this definition of placed to indicate where something was 
put, not the direction in which it was installed. This is consistent with the full dictionary 
definition: "put in a particular position: a newspaper had been placed beside my plate." 
NEW OXFORD AMERICAN DICTIONARY (3d ed. 2010). In addition, Buck Town's proffered 
interpretation directly conflicts with~ 3.3.1 "Seams" which provides that "[g]eotextiles 
shall be supplied in continuous machine direction lengths without seams" (R4, tab 5 at 112). 
Thus, we find that the plain meaning of the contract does not support Buck Town's 
interpretation. 
Buck Town additionally argues that the Corps' interpretation of the geotextile 
specifications is internally inconsistent because each overlap is two-dimensional. Thus, 
Buck Town argues, each overlap consists of an overlap perpendicular to the direction of the 
levee centerline and an overlap that is parallel to the levee centerline. (App. br. at 18-21 )6 
However, it is Buck Town's interpretation that creates internal inconsistency. The 
geotextile provisions provide that "Geotextile panels shall be sewn along the selvedgedr71 
edges so that seams run parallel with the machine direction to produce geotextile pieces 
that are wider than the weaving machine produces. Geotextiles shall be supplied in 
continuous machine direction lengths without seams." (R4, tab 5 at 112) Overlaps can be 
substituted for seams to join pieces of geotextile that become too heavy to handle with 
construction equipment, and must run in the same direction as seams (id.). Thus, the 
"seam" that can be replaced with an overlap is the long seam running in the machine 
direction, not the cut edge across the machine width. 
6 This interpretation would make the requirement for perpendicular overlapping to be 
meaningless because all such two-dimensional overlaps would contain a 
perpendicular component. 
7 Selvedge is defined as "an edge produced on woven fabric during manufacture that 
prevents it from unraveling." NEW OXFORD AMERICAN DICTIONARY (3d ed. 2010). 
6 

Buck Town's proffered interpretation is internally inconsistent with the contract 
provisions providing that all seams must be perpendicular to the centerline of the levee and 
that the geotextiles be supplied in "continuous machine direction lengths without seams" 
(R4, tab 5 at 112). Buck Town attempts to avoid the contract language requiring that 
seams be perpendicular to the centerline by arguing that the language applies to seams that 
make the geotextile wider and not other seams (app. reply at 22). Even assuming that Buck 
Town's interpretation is correct, its proposed interpretation still conflicts with the provision 
requiring that the geotextile be supplied in continuous machine direction lengths without 
seams. Buck Town additionally argues that the material was "supplied" in continuous 
lengths because it was delivered from the manufacturer to the job site in continuous 
machine direction without seams (id. at 22-23). The term "supply" means to "make 
(something needed or wanted) available to someone; provide." NEW OXFORD AMERICAN 
DICTIONARY (3d ed. 2010). Here, the geotextile specifications concern the relationship 
between the Corps and Buck Town. Thus, the Corps is the "someone" in the dictionary 
definition that has received the goods. Buck Town did not "supply" continuous rows of 
geotextile without seams to the Corps. 
Buck Town also argues that the Corps' interpretation requires the Board to read into 
the contract language that does not exist. Buck Town asserts that the geotextile 
specifications and contract drawings do not contain any expressed instructions requiring 
geotextile rows "having a continuous, machine-direction length sufficient to span the entire 
distance from the flood side placement limit to the protected side limit," "[p ]rohibiting the 
contractor from joining together two less-than-full-length panels of geotextile," or 
prohibiting overlaps parallel to the centerline (app. br. at 22-23). Contrary to Buck Town's 
argument, the geotextile specifications specifically require that "[g]eotextiles shall be 
supplied in continuous machine direction lengths without seams" (R4, tab 5 at 112). 
Moreover, the specification's requirement that "[a]ll seams and overlaps shall be placed 
perpendicular to the centerline of the levee" necessarily prohibits seams and overlaps 
placed parallel to the centerline of the levee. The fact that the Corps could have included 
more explicit language that might have prevented this dispute is of no moment. Further, 
Buck Town's citation to A.A. Conte & Son, Inc., ENG BCA Nos. 6104, 6227, 96-2 BCA 
ii 28,581, is not persuasive because that appeal involved a contract where the Army Corps 
of Engineers Board of Contract Appeals agreed with the appellant's interpretation of the 
plain language of the contract. Here, we find that the contractual language does not 
support the appellant's interpretation. 
Having found that the plain meaning of the contract is not consistent with Buck 
Town's proposed interpretation, we decline to consider Buck Town's extrinsic evidence 
regarding the parties' pre-dispute conduct (app. br. at 25-30). See, e.g., City of Tacoma, 
Dept. of Public Utilities v. United States, 31 F.3d 1130, 1134 (Fed. Cir. 1994); Banknote 
Corp., 365 F.3d at 1353. To the extent such a claim is properly before the Board, Buck 
Town may choose to present evidence of pre-dispute conduct at a hearing in support of the 
waiver argument it belatedly raises in its reply brief (app. reply at 38-47). Arguments 
raised for the first time in a reply brief are waived. Raytheon Company, Space & Airborne 
7 

l 
t 
Systems, ASBCA No. 57801 et al., 15-1BCA~36,024 at 175,960 n.3; see also Systems 
Management and Research Technologies Corp. v. Dept. of Energy, CBCA No. 4068, 16-1 
BCA ~ 36,333 at 177,138 n.7 (citingBannum, Inc. v. United States, 121 Fed. Cl. 543, 552 
n.6 (2015)). For the same reason, we do not consider Buck Town's argument that the "real 
issue" is the Corps' undisclosed engineering considerations (app. reply at 1-10). 
Additionally, as we do not find the contract to be ambiguous, Buck Town's latent 
ambiguity argument is inapplicable. City of Tacoma, 31 F.3d at 1134. 
CONCLUSION 
For the reasons stated above, Buck Town's motion for partial summary judgment is 
denied. 
Dated: 11 January 2018 
I concur 
_____ .-
RICHARD SHACKLEFORD 
Administrative Judge 
Acting Chairman 
Armed Services Board 
of Contract Appeals 
DA YID D' ALESSANDRIS 
Administrative Judge 
Armed Services Board 
of Contract Appeals 
I concur 
J. REID PROUTY 
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. 60939, Appeal of Buck Town 
Contractors & Co., rendered in conformance with the Board's Charter. 
Dated: 
8 
JEFFREYD. GARDIN 
Recorder, Armed Services 
Board of Contract Appeals