Dragados USA, Inc.
Docket: ASBCA 57664
Decision date: 2013-08-29

ARMED SERVICES BOARD OF CONTRACT APPEALS 
Appeal of-- ) 
) 
Dragados USA, Inc. ) 
) 
Under Contract No. W912EP-08-C-0011 ) 
APPEARANCES FOR THE APPELLANT: 
APPEARANCES FOR THE GOVERNMENT: 
ASBCA No. 57664 
Donald A. Tobin, Esq. 
Lori Ann Lange, Esq. 
Peckar & Abramson, P.C. 
Washington, DC 
Thomas H. Gourlay, Jr., Esq. 
Engineer Chief Trial Attorney 
Carolyn J. Fox, Esq. 
Assistant District Counsel 
U.S. Army Engineer District, Jacksonville 
OPINION BY ADMINISTRATIVE JUDGE CLARKE ON CROSS-MOTIONS FOR 
SUMMARY JUDGMENT 
This appeal involves a contract for construction of a dam in Puerto Rico. The 
parties dispute the interpretation of one paragraph setting out quantities of concrete 
aggregate to be used in construction of the dam. We have jurisdiction pursuant to the 
Contract Disputes Act of 1978 (CDA), 41 U.S.C. §§ 7101-7109. We grant the 
government's motion and deny the appeal. 
STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTIONS 
l. On 14 March 2008, the U.S. Army Corps of Engineers (COE), Jacksonville 
District, awarded Dragados USA, Inc. (Dragados) Contract No. W912EP-08-C-0011 for 
the construction of the Portugues Dam and Bucana Rivers Project, Ponce, Puerto Rico 
(R4, tab 4 at 345). The project is described in part as follows: 
The work will include construction of a 220-foot high Roller 
Compacted Concrete (RCC) thick arch dam with a crest 
length of 1,230 feet and an estimated 367,000 cubic yards of 
RCC. 
(R4, tab 4 at 639) 

2. The project consisted of five construction phases generally described as 
follows: 
--Phase 1- Mobilization, clearing, quarry overburden 
excavation, power-line relocation. 
--Phase 2- Foundation excavation, aggregate production, 
dental concrete. 
--Phase 3 -Aggregate production, 50% dam RCC placement. 
--Phase 4- Final dam RCC placement, spillway, intake 
structure. 
--Phase 5 - Remaining items, valve house, access road, 
mechanical, electrical. 
(R4, tab 4 at 644-4 7) 
3. The specification included Section 03700, "CONCRETE," that is generally 
described as follows: 
The work covered by this section consists of the maufacturing 
[sic], placing, compacting and curing of all concrete other 
than the roller compacted concrete for use at the Portugues 
Dam Project. This includes all reinforced concrete, 
foundation treatment concrete and dental concrete. The 
gradings ofthe nominal2-inch NMSA RCC and conventional 
concrete coarse aggregate are similar. The Contractor may 
choose to produce "shared use" coarse aggregate stockpiles 
for efficiency. 
(R4, tab 4 at 1288) The specification also included Section 
03701, 
"ROLLER-COMPACTED CONCRETE" (R4, tab 4 at 1326). Section 03700, 
subparagraph 1.2, "GOVERNMENT TESTING AND STUDIES," incorporated the 
provisions of Section 03 70 I: 
1.2.1.1 Aggregates 
The 
requirements of Section 03701 ROLLER-COMPACTED 
CONCRETE paragraph ''Aggregate Information" shall be 
applicable to the conventional concrete. 
(R4, tab 4 at 1290) The same is true for 1.2.1.2 Cementitious Materials, Admixtures, and 
Curing Materials; 1.2.1.3 Materials for Mixture-Proportioning Studies; 1.2.2.1 General 
2 

(under "Construction Testing by the Government"); 1.2.2.2 Aggregate Testing; 1.2.2.3 
Cementitious Materials; and 1.2.2.4 Admixtures (R4, tab 4 at 1290-91). 
4. Specification Section 03701, "ROLLER-COMPACTED CONCRETE," is 
generally described as follows: 
a. The work covered by this section consists of the 
manufacturing, transporting, placing, compacting and curing 
of roller compacted concrete (RCC) for use at the Portugues 
Dam Project. Roller compacted concrete is a 
combination of 
find and coarse aggregate, pozzolan, cement and admixture 
that are blended with water to a damp consistency that 
permits hauling and spreading with earth moving equipment 
and compaction with vibratory rollers. 
(R4, tab 4 at 1329) 
5. Section 03701, subparagraph 1.2.1.1, "Aggregate Information," reads in part: 
Coarse and fine aggregates for this project will be produced 
by the Contractor from a government furnished quarry 
located approximately 1-mile upstream of the proposed dam 
site. Testing has been performed previous to the award of 
this contract. Results of this testing indicate that the quarry is 
capable of producing materials of the quality and quantity 
required for this project, provided suitable processing is 
performed. 
(R4, tab 4 at 1332) 
6. Section 03701, subparagraph 2.2, "MIXTURE PROPORTIONING," includes 
the following two subparagraphs: 
2.2.1 Composition 
All concrete mixtures will be proportioned by the Contracting 
Officer. RCC shall be composed of cementitious materials, 
water, fme and coarse aggregates, and water-reducing/retarding 
admixture. The cementitious material shall be Portland cement 
in combination with pozzolan. Air-entraining admixture will 
not be used in the RCC. 
3 

2.2.2 Proportions 
RCC mixtures and all other conventional concrete mixtures 
including bedding mortar and grout for GERCC will be 
proportioned by the Contracting Officer. There will be one 
primary RCC mixture used for the mass of the dam structure. 
This primary mixture will contain approximately 21 0 to 250 
pounds water, 180 to 215 pounds ofPortland cement and 90 
to 125 pounds pozzolan per cubic yard. Based on the design 
mix, 280,000 tons of fine aggregate and 420,000 tons of 
coarse aggregate will be required. These values do not 
include a waste factor. These values are provided as 
information. The actual amounts will be determined during 
the mixture proportioning studies performed at the project 
laboratory. The bedding mortar is a high-slump broomable 
mixture containing approximately 600 to 700 pounds of 
Portland cement and 200 to 250 pounds pozzolan per cubic 
yard. The mortar shall include the fme aggregate specified in 
Section 03 700 CONCRETE and will have a slump, when 
placed, of9 to 11 inches. Grout for the GERCC is a flowable 
mixture (designed for 1 0 to 20 seconds flow when tested in 
accordance with ASTM C 939), consisting of a cement and 
water mix proportioned at an approximate water to cement 
ratio of 0.5 by weight. 
(R4, tab 4 at 1342) 
7. On 2 November 2009 the COE provided Dragados the approved mix designs 
for conventional concrete (app. supp. R4, tab 109). On 12 February 2010 the COE 
provided Dragados the approved mix design for RCC (app. supp. R4, tab 111). 
8. On 23 April2010 Dragados sent a letter notifying the COE that it believed the 
approved mix designs resulted in a change to the contract: 
Aggregate production. Quantity of aggregates 
This work requires Dragados to produce the aggregates for 
the RCC mixtures and conventional concrete mixtures. This 
work is paid under Mobilization and Preparatory Work 
(Phase 2 Line Item 2001, Phase 3 Line Item 3001 and Phase 4 
Line item 4001) Section 01270. 
The applicable contract provision is paragraph, 2.2.2 
"Proportions" of Section 03 701 of the "Roller-Compacted 
4 

(R4, tab 6R) 
Concrete" specification. This provision requires 280,000 tons 
of fme aggregate and 420,000 tons of coarse aggregate. The 
actual amounts will be determined during the mixture 
proportioning studies performed at the project laboratory. 
Based on the studies performed by the project laboratory, 
USACE has provided us with the fmal mix designs that 
require 293,000 tons of fine aggregate and 473,000 tons of 
coarse aggregate. Dragados considers this to be a change to 
the contract requirements, which under the Changes clause 
FAR 52.243-4, entitles Dragados to an equitable adjustment 
in the contract price and possibly the schedule. Dragados will 
monitor its costs and schedule and will submit a request for 
an equitable adjustment upon completion of this work item. 
9. On 17 September 2010, Dragados submitted a Request for Equitable 
Adjustment (REA) for the additional costs incurred as a result of the change in quantities 
of aggregates resulting from the approved mix designs (R4, tab 6N). Citing Section 
03701, "ROLLER-COMPACTED CONCRETE," Dragados explained the change as 
follows: 
This is the only section in the Contract where the quantity of 
aggregates to be produced is discussed. In SECTION 03700 
CONCRETE reference is made to SECTION 03701 
ROLLER COMPACTED CONCRETE. Although paragraph 
2.2.2 of SECTION 03701 indicates that the estimates were 
provided 
as information, having no other way of estimating 
the requirement, Dragados USA had to rely on these 
estimates when preparing the proposal for the contract. 
Therefore, using the information supplied by the Government, 
we estimated a total of 700,000 tons of aggregate (280,000 
tons of fine aggregate and 420,000 tons of course aggregate) 
would be needed for the overall project. 
(R4, tab 6N at 5502-03) Dragados went on to state that based on its estimate, the 
approved mix design resulted in an additional 72,817 short tons of aggregate and 
requested $1,925,693 (id. at 5503). 
10. On 30 November 2010 the COE resident engineer advised Dragados that he 
found no merit in Dragados' REA (R4, tab 6K at 5456). Attached to the letter was a 
technical evaluation performed by the COE that expressed 
an interpretation of Section 
03701, paragraph 2.2.2, Proportions. After quoting paragraph 2.2.2 it reads: 
5 

If the above paragraph is read carefully, there is only 
one way it can be reasonably interpreted. The first sentence 
indicates that all mixes, including the conventional concrete 
(subject of section 03700) will be provided by the 
government. Then it discusses the approximate per cubic 
yard component weights of other that [sic] coarse and fine 
aggregates, and finally the total estimated weights of coarse 
and fine aggregates for the mass of the dam structure. 
Although there is mention of conventional concrete, bedding 
mortar and grout, no attempt is made to provide approximate 
quantity of aggregates for these. Therefore, the contractor 
should have used other information in the solicitation (RFP), 
such as the drawings, technical reports, etc, to determine not 
only main dam RCC aggregate production requirements, but 
requirements for the entire project. As such, contractor's 
estimates should have included Main Dam RCC, Valve 
House RCC, Test Section RCC, RCC Trial Mix Process, and 
RCC for Miscellaneous uses. Also, 
estimates of aggregate for 
all conventional concrete in permanent structures and 
miscellaneous applications should have been developed by 
Dragados USA in preparing their bid. 
(R4, tab 6K at 5459) The technical review continues to explain how the volume ofRCC 
may be determined from the contract specifications and drawings (id. at 5459-60). The 
review included a section that argued aggregate production for the conventional 
(non-RCC) concrete could be determined from "take offs" from the contract drawings 
(id. at 5461). 
11. On 14 December 2010 Dragados submitted a certified claim in the amount of 
$2,969,504 to the contracting officer (CO) (R4, tab 3 at 25-29). Included in the 
submission was a detailed response to the COE's technical analysis of the REA (id. at 
97-105). Dragados summarized its position as follows: 
1. An estimate of700,000 tons of aggregate was provided in 
the contract as an indication of the overall amount of 
aggregates needed in the project. 
2. With the limited information available, Dragados USA 
performed its own quantities take off. Lacking clear, 
detailed information about the RCC mix design to be used 
and any information at all about the conventional concrete 
mix design to be used, the resulting quantity of aggregates 
based on typical concrete mix designs for both RCC and 
6 

(!d. at 105) 
conventional concrete is very close to the 700,000 tons 
indicated in the contract. 
3. Based on the previous two points, Dragados USA used the 
amount of700,000 tons of aggregates for its offer and 
reached an agreement with its subcontractor 
Construcciones Jose Carro for the same amount. 
4. Dragados USA is entitled to 
recover all additional costs 
for producing aggregates in excess of the 700,000 tons 
baseline. Final quantities will be determined once all 
concrete in the project has been placed. Current estimate 
had been updated from the 72,817 tons, previously 
presented, to 90,058 tons and will continue to be updated 
as concrete placement proceeds. 
12. On 1 April2011, the CO issued a fmal decision denying Dragados' claim (R4, 
tab 1 at 1-9). On 23 June 2011, Dragados filed its timely appeal ofthe fmal decision. On 
24 June 2011, the appeal was docketed as ASBCA No. 57664. 
DECISION 
This opinion deals with cross-motions for summary judgment based on a single 
question of contract interpretation. Summary judgment may be appropriate in contract 
interpretation cases if there are no ambiguities requiring weighing of extrinsic evidence: 
The standards for summary judgment are established. 
It is a salutary method to resolve an appeal when there is no 
genuine issue of material fact and the movant is entitled to 
judgment as a matter of law. Sweats Fashions, Inc. v. Panni!! 
Knitting Co., 833 F.2d 1560, 1562-63 (Fed. Cir. 1987). Any 
significant doubt over factual issues, and all reasonable 
inferences, must be resolved and drawn in favor of the party 
opposing summary judgment. Mingus Constructors, Inc. v. 
United States, 812 F.2d 1387, 1390 (Fed. Cir. 1987). Legal 
questions of contract interpretation are amenable to summary 
resolution, unless there is an ambiguity that requires the 
weighing of extrinsic evidence. However, extrinsic evidence 
will not be received unless there is such an ambiguity. Coast 
Federal Bank, FSB v. United States, 323 F.3d 1035, 1040 
(Fed. Cir. 2003) (en bane); Beta Systems, Inc. v. United 
States, 838 F.2d 1179, 1181, 1183 (Fed. Cir. 1988); Gosselin 
World Wide Moving NV, ASBCA No. 55367, 09-2 BCA 
,-r 34,242 at 169,234. 
7 

Dixie Construction Co., ASBCA No. 56880, 10-1 BCA ~ 34,422 at 169,918. As 
explained below, we need not consider extrinsic evidence to arrive at the proper 
interpretation of the disputed language. 
Contention of the Parties 
Dragados summarizes its argument in the introduction to its motion: 
The Contract specifications provided a clear and specific 
representation of the quantity of aggregate that would be 
required for the Project. Specification Section 03701 ~2.2.2. 
stated that, "Based upon the design mix, 280,000 tons of fine 
aggregate and 420,000 tons of coarse aggregate will be 
required." (Rule 4 Tab 4, p. 1342) Both Dragados and its 
subcontractor understood that the 700,000 ton aggregate 
requirement (280,000 tons of fme aggregate + 420,000 tons of 
coarse aggregate) applied to both the RCC and the 
conventional concrete. [Footnote omitted] 
(App. mot. at 1) Dragados argues: 
The only reasonable interpretation of Section 03 700 
[sic], [11 ~ 2.2.2 is that "280,000 tons of fme aggregate and 
420,000 tons of coarse aggregate will be required" for the 
RCC and the conventional concrete on the Project. This is 
the only interpretation that is consistent with the language of 
Section 0370[1], ~ 2.2.2, as well as the contemporaneous 
circumstances at contract formation. Furthermore, it is the 
only interpretation that gives meaning to all of the provisions 
of Section 0370[1], ~ 2.2.2. 
{App. mot. at 22)2 Dragados admits that the second and third sentences relate to RCC alone, 
"[t]he second and third sentences clearly are limited to the RCC mix" (app. mot. at 23). 
Dragados arrives at its interpretation by linking the first sentence of Section 03701, ~ 2.2.2, 
"RCC mixtures and all other conventional concrete mixtures including bedding mortar 
and grout for GERCC will be proportioned by the Contracting Officer" and the fourth 
1 This should be "03701." 
2 In its claim, Dragados disclosed that it did "quantities take off' and, utilizing "typical 
concrete mix designs," calculated the total quantity of conventional and RCC 
concrete arriving at close to 700,000 tons of aggregates (SOF ~ 11 ). This raises 
the question of whether Dragados relied upon the interpretation it asserts in this 
dispute. 
8 

through seventh sentences, "Based on the design mix, 280,000 tons of fine aggregate and 
420,000 tons of coarse aggregate will be required. These values do not include a waste 
factor. These values are provided as information. The actual amounts will be determined 
during the mixture proportioning studies performed at the project laboratory." (App. mot. 
at 22-23) Dragados discusses each sentence focusing on whether certain words are "plural," 
for example: 
Finally, the seventh sentence makes it absolutely clear 
that~ 2.2.2 applies to the aggregates for both RCC and 
conventional concrete. That sentence reads as follows: "'The 
actual amounts will be determined during the mixture 
proportioning studies performed at the project laboratory." 
(Emphasis added) The term "actual amounts" only can refer 
to the tons of fme and coarse aggregate that will be required 
for both RCC and conventional concrete on the Project. This 
is because the sentence refers to "mixture proportioning 
studies." The use of the plural implies that there is a mixture 
proportioning study for the RCC and one (or more) mixture 
proportioning study for the conventional concrete. 
(App. mot. at 23) 
The government argues as follow: 
The disputed paragraph begins by stating that "RCC mixtures 
and all other conventional concrete mixtures including 
bedding mortar and grout for GERCC will be proportioned by 
the Contracting Officer." While this sentence in essence 
states that the Contracting Officer will proportion all concrete 
mixtures, it specifically separates RCC mixtures and 
conventional concrete mixtures rather than merely using the 
word 'all.' This again should have alerted the Appellant that 
the paragraph was not lumping all types of concrete together 
in its discussion. The next two sentences Appellant admits 
apply only to RCC concrete: "There will be one primary 
RCC mixture used for the mass of the dam structure. This 
primary mixture will contain approximately 210 to 250 
pounds ofwater, 180 to 215 pounds ofPortland cement and 
90 to 125 pounds pozzolan per cubic yard." At this point in 
the reading of the paragraph it is clear, as admitted by the 
Appellant, that it [sic] discussing a single primary RCC 
mixture. The paragraph then goes on to read "[b ]ased on the 
design mix, 280,000 tons of fine aggregate and 420,000 tons 
of coarse aggregate will be required." (Emphasis added). It 
9 

is this sentence that Appellant alleges applies to all concrete 
aggregates and not just RCC aggregates. However, this 
interpretation is not reasonable when you read the paragraph 
and the entire Contract as a whole. 
(Gov't opp'n at 20-21) The government places importance on the fact that words are 
"singular": 
Fifth, the work "mix" is singular. As the conventional 
concrete would have a different design mix than the RCC, it 
is clear that the singular word "mix" could not apply to both 
RCC and conventional concrete aggregates. 
(Gov't opp'n at 21) There is also the analysis presented in the government technical 
evaluation of the REA (SOF ~ 10). 
Interpretation Analysis 
The basic rules of contract interpretation were well stated in Teg-Paradigm 
Environmental, Inc. v. United States, 465 F.3d 1329, 1338 (Fed. Cir. 2006): 
When interpreting a contract "' 'the language of [the] 
contract must be given that meaning that would be derived 
from the contract by a reasonably intelligent person 
acquainted with the contemporaneous circumstances.' " 
Metric Constructors, Inc. v. Nat'! Aeronautics & Space 
Admin., 169 F.3d 747, 752 (Fed. Cir. 1999) (quoting Hol-Gar 
Mfg. Corp. v. United States, 169 Ct. Cl. 384, 351 F.2d 972, 
975 (Ct. Cl. 1965)). When deriving this meaning, we begin 
with the contract's language. Coast Fed. Bank, FSB v. United 
States, 323 F.3d 1035, 1038 (Fed. Cir. 2003) (en bane). 
When the contract's language is unambiguous it must be 
given its "plain and ordinary" meaning and the court may not 
look to extrinsic evidence to interpret its provisions. !d. at 
1040; McAbee Constr., 97 F.3d at 1435. 
See also LA! Services, Inc. v. Gates, 573 F.3d 1306, 1314 (Fed. Cir. 2009). We apply 
these principles to Section 03701, ~ 2.2.2 Proportions. 
The parties agree that this case involves the interpretation of one paragraph­
Section 03701, ~ 2.2.2 Proportions. The first four sentences of the paragraph are relevant 
to our inquiry. The first sentence simply restates what was said in~ 2.2.1, that all 
concrete mixtures "will be proportioned by the Contracting Officer" (SOF ~ 6). Both 
parties agree that the second and third sentences deal only with RCC, "[t]here will be one 
primary RCC mixture used for the mass of the dam structure. This primary mixture will 
10 

contain approximately 210 to 250 pounds water, 180 to 215 pounds of Portland cement 
and 90 to 125 pounds pozzolan per cubic yard" (id.). We conclude that "210 to 250 
pounds ofwater, 180 to 215 pounds ofPortland cement and 90 to 125 pounds pozzolan 
per cubic yard" is an estimated range of design mix. The fourth sentence reads, "[b ]ased 
on the design mix, 280,000 tons of fine aggregate and 420,000 tons of coarse aggregate 
will be required" (id.). We conclude that this is the result of some sort of calculation 
"[b]ased on the design mix." The words "[b]ased on the design mix" in the fourth 
sentence can only refer to the second and third sentences because they contain the only 
design mix information in the paragraph. The first sentence does not contain anything 
that could reasonably be interpreted to be referred to by the words "[b ]ased on the design 
mix." There is no design mix information in the first sentence that would allow for the 
calculation of number of tons of fine and coarse aggregate identified in the fourth 
sentence. Since everyone agrees that the second and third sentences relate 
to RCC, the 
fourth sentence must also relate to RCC. Dragados' reliance on "plural" words and the 
government's reliance on "singular" words miss the 
obvious interpretation of these 
sentences. There is only one reasonable interpretation of Section 03701, ~ 2.2.2 
Proportions -the 700,000 tons of fine and coarse aggregate is for the RCC. This 
interpretation causes no conflict with the rest of~ 2.2.2 or any other language in the 
contract. We agree with the government's technical evaluation that there is much more 
information in the drawings that Dragados could have used to estimate the amount of 
aggregate for the non-RCC concrete and Dragados appears to have done just that with its 
use of "take offs" that it says verified the validity of the 700,000 tons of aggregate 
(SOF ~~ 10-11). 
CONCLUSION 
For the reasons stated above, we grant the government's motion and deny 
Dragados' motion. The appeal is denied. 
Dated: 29 August 2013 
(Signatures continued) 
11 
Administr tive Judge 
Armed Services Board 
of Contract Appeals 

I concur 
~~· N. STEMPLER 
Administrative Judge 
Acting Chairman 
Armed Services Board 
of Contract Appeals 
I concur 
~KLEFORD 
Administrative Judge 
Acting 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. 57664, Appeal ofDragados 
USA, Inc., rendered in conformance with the Board's Charter. 
Dated: 
12 
JEFFREY D. GARDIN 
Recorder, Armed Services 
Board of Contract Appeals