Shoreline Foundation, Inc.
Docket: ASBCA 62876, ASBCA 63616
Decision date: 2026-04-06

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ARMED SERVICES BOARD OF CONTRACT APPEALS 
OPINION BY ADMINISTRATIVE JUDGE O’CONNELL 
 
These appeals arise from a contract for the construction of artificial reefs off the 
coast of Brevard County, Florida.  In ASBCA No. 62876, appellant, Shoreline 
Foundation, Inc. (SFI), seeks $2,663,902, contending that the government wrongfully 
failed to disclose superior knowledge of the weather and sea conditions at the site and 
forced SFI to accelerate.  SFI also contends that the government breached the duty of 
good faith and fair dealing. 
 
Previously, the Board dismissed for lack of jurisdiction SFI’s claim that it was 
delayed by a bid protest because SFI never submitted that claim to the contracting 
officer (CO).  Shoreline Found., Inc., ASBCA Nos. 62876, 63616, 23-1 BCA ¶ 38,468 
(SFI I).  Then, in Shoreline Found., Inc., ASBCA Nos. 62876, 63616, 24-1 BCA 
¶ 38,607 (SFI II) recon. denied 24-1 BCA ¶ 38,678, the Board granted the government 
partial summary judgment with respect to SFI’s contention that the specifications were 
either defective or contained a misrepresentation as to when the weather and sea 
conditions would be suitable for performing work. 
 
In ASBCA No. 63616, SFI is challenging the government’s assessment of 
liquidated damages in the amount of $249,690 (R4, tab 58). 
Appeals of - )  
 )  
Shoreline Foundation, Inc. ) ASBCA Nos. 62876, 63616 
 )  
Under Contract No. W912EP-16-C-0027 )  
   
APPEARANCES FOR THE APPELLANT: Robert G. Barbour, Esq. 
Matthew D. Baker, Esq. 
    Watt, Tieder, Hoffar & Fitzgerald, L.L.P. 
  McLean, VA    
 
APPEARANCES FOR THE GOVERNMENT: Michael P. Goodman, Esq. 
    Engineer Chief Trial Attorney 
 Amber R. Jackson, Esq. 
Kristin M. Bigham, Esq. 
Logan Grutchfield, Esq. 
Mischael Sachmorov, Esq. 
    Engineer Trial Attorneys 
    U.S. Army Engineer District, Jacksonville 
  
 

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The Board conducted an eight-day hearing in May 2025.  Both liability and 
quantum are before us.  The Board denies No. 62876.  The Board sustains No. 63616. 
 
FINDINGS OF FACT 
 
Solicitation 
 
1.  On August 9, 2016, the United States Army Corps of Engineers, 
Jacksonville District, (USACE) issued the solicitation for the above-captioned 
contract, Hurricane and Storm Damage Reduction Project, Brevard County, Florida, 
Mid-Reach Segment - Mitigation Feature (R4, tab 1 at 1-2).  The solicitation originally 
provided for the submission of bids on September 12, 2016, but the deadline was 
extended to September 26, 2016 (id. at 2, 7451). 
 
2.  The solicitation provided that the contractor would manufacture, transport, 
and install concrete reef mats with coquina rock surfaces to establish a 4.8-acre 
artificial reef in water depths of 14 to 16 feet Mean Low Water, 1,000 feet from shore.  
A reef mat consists of 18 reef blocks (2.6-feet by 2.6-feet by 1-foot-high pieces of 
concrete/coquina) connected by longitudinal and lateral cabling in a three by six block 
pattern to form an articulated mat of about 8 by 16 feet.  Forty-five reef mats placed 
together form a reef set of approximately 0.14 acres.  The project consisted of 36 reef 
sets at 10 sites, for a total of 1,620 mats.  (Id., tab 1 at 208-09) 
 
3.  The placement area for the mats extended for about five miles off the coast 
of Brevard County beginning 16 miles south of Cape Canaveral, near two 
municipalities, Satellite Beach and Indian Harbor Beach, and unincorporated Brevard 
County.  This area, which is in the middle of the approximately 40-mile section of 
Brevard County south of Cape Canaveral, is referred to as the “Mid-Reach.”  (Id. 
at 209; tr. 4/131) 
 
4.  The solicitation provided that the contractor would lower the reef mats and 
place them on the bottom no more than 12 inches from adjacent reef mats.  It 
prohibited dropping the mats through the water or pushing or pulling them after they 
were in contact with the floor or geotextile, meaning that the contractor would have to 
lift and reset the mat if it was not in the correct position.  (R4, tab 1 at 440, 452)   
 
1 Citations are to the .pdf page number of the electronic file. 

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Weather Considerations 
 
5.  The solicitation did not place any restrictions on the time of year in which 
the contractor could work.  However, SFI was aware that the winter months are 
generally unsuitable for marine construction in Florida (tr. 1/156-57; tr. 2/65; tr. 3/19). 
 
6.  Dr. Kevin Bodge, a coastal engineer who worked as a consultant for Brevard 
County, testified at the hearing.  Dr. Bodge has worked in the Mid-Reach since 1988 
(tr. 4/132).  He testified credibly that local watermen know that the best chance for 
“calm-ish” seas in Brevard County is from mid-May to mid-September.  (He defined 
watermen to mean anybody who works in or recreates around the ocean, including 
marine contractors, marine surveyors, marine biologists, fishermen, and surfers.)  
(Tr. 5/106)  But this is merely a rule of thumb.  Dr. Bodge testified that sometimes the 
best weather can be in the winter and the worst in July and August.  In his work he has 
lost entire summers to unrelenting storms, whereas the two winters preceding his 
testimony had 30-day stretches of seas like “flat glass” from January into February.  
(Tr. 5/87-88) 
 
7.  To a certain extent, the solicitation reflected these parameters.  In a section 
entitled “Placement Season,” it provided “[i]t is anticipated that the placement season 
may occur between April 1st and October 1st” (R4, tab 1 at 424).  In a section entitled 
“Project Order of Work,” it provided “[p]lease note, the area where placement sites are 
located experience inclement weather which typically occurs between November 1st 
and May 1st” (id. at 428).  Thus, the solicitation provided that USACE “anticipated” 
that placement “may occur” in a six-month period beginning in April, but that April is 
also the last month of the inclement weather season. 
 
8.  In the “Weather and Water Stage Data” section, the solicitation provided 
cautionary guidance on the weather during the work season:  “Weather Conditions. 
The project area is subject to tropical storms and hurricanes from June through 
November, and to windy and/or rainy weather during any time of the year. . . The wet 
season in the project area is from May through October” (id. at 206).  The solicitation 
further provided that “the project area may be affected by stormy, windy and/or rainy 
weather, including thunderstorms, during any time of the year” (id. at 212). 
 
9.  As we discussed in SFI II, 24-1 BCA at 187,671-72, the solicitation placed 
responsibility on the bidders to determine how the weather conditions would affect 
safety and work conditions (R4, tab 1 at 206 (“[i]t shall be the contractor’s 
responsibility to obtain information concerning weather conditions in the project 
area”); id. at 212 (“The Contractor shall be responsible for obtaining information 
concerning rain, wind and wave conditions that could influence safety, dredging and 
disposal operations prior to submitting a proposal or bid”); id. at 428-29 (“The 
Contractor shall ascertain the environmental conditions which can affect water and 

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land access, such as climate, terrain, winds, current, waves, swells, depths, shoaling, 
and scouring tendencies”).  The contract contained Federal Acquisition Regulation 
(FAR) 52.236-3, SITE INVESTIGATION AND CONDITIONS AFFECTING THE 
WORK (APR 1984).  This clause provided, among other things, that: 
 
(a) The Contractor acknowledges that. . . it has 
investigated and satisfied itself as to the general and local 
conditions which can affect the work or its cost, including. 
. . . (3) uncertainties of weather, river stages, tides, or 
similar physical conditions at the site. . . . and (5) the 
character of equipment and facilities needed preliminary to 
and during work performance. 
 
(R4, tab 1 at 573) 
 
10.  The solicitation identified various web sites in which wind and wave 
information from buoys or other devices in the general vicinity of the project site was 
available, although none of the sources was located within the footprint of the project 
site (R4, tab 1 at 205; app. ex. D-5; tr. 5/193).  The listed sources included the National 
Data Buoy Center. 
 
SFI’s Proposal 
 
11.  SFI is a marine contractor formed in 1986 that has completed hundreds of 
projects (tr. 1/36, 44).  However, SFI lacked certain types of experience that would 
prove to be relevant to this project: it had never worked in the waters off Brevard 
County; it had “not very often” worked in the open ocean; it had never performed a job 
involving precise placement of an artificial reef; and it had rarely worked in low 
visibility waters (tr. 1/49, 96; tr. 2/39; tr. 3/87-88). 
 
12.  SFI appointed Carlos Varela to prepare its estimate, with SFI’s president 
and co-owner, James Royo, as his supervisor (tr. 1/36, 68).  Mr. Royo testified at the 
hearing but Mr. Varela did not.  When asked at the hearing whether he had 
investigated the weather conditions, Mr. Royo testified that “it didn’t seem like it 
needed to be done,” because of the window (April 1 to October 1) identified in the 
solicitation (tr. 1/128). 
 
13.  SFI did not believe that the NDBC buoys would provide pertinent 
information for the job site (tr. 1/123-24; tr. 2/30, 34).  Mr. Varela instead obtained 
wind information from Melbourne, which is also not in the project area; it is on the 
Florida mainland south of the project site (tr. 1/139; tr. 2/32).  The record does not 
identify the precise location of the data, but the Melbourne airport is a likely source 
(tr. 5/117). 

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14.  Mr. Varela “came up with a wind chart” indicating that wind speeds over 
16 nautical miles would generate 4-foot waves/swells.  This was an important data 
point because SFI believed that it was capable of working in waves up to 4 feet.  
(Tr. 1/94, 138) 
 
15.  The data that Mr. Varela reviewed must have shown a small number of 
days in Melbourne with 16-knot winds, because Mr. Varela calculated that an entire 
season (April through September) would have only five days in which SFI could not 
work.  This included zero days in July, August, and September, the heart of the 
tropical storm and hurricane season.  (Tr. 1/138, 141-43; app. supp. R4, tab 157) 
 
16.  The problem with this methodology is that the relative absence of wind on 
the land does not mean that the ocean will be calm.  Wind data on land best correlates 
to conditions on a lake or bay, not the open ocean.  Ocean conditions are in large part 
controlled by the weather in the North Atlantic Ocean.  Thus, while any particular day 
in Melbourne might have placid conditions on land, the sea could be rough due to a 
storm that developed hundreds of miles away.  (Tr. 1/61; tr. 5/24-25, 118) 
 
17.  As a result, Mr. Varela’s calculations would not reliably predict the 
frequency of four-foot seas at the project site.  Based on this, and the testimony that 
SFI had “not very often” worked in the open ocean (finding 11), we conclude that SFI 
did not understand what would cause waves/swells at the project site. 
 
18.  At the National Data Buoy Center (NDBC) web site identified in the 
solicitation, a bidder could find buoys including No. 41113, which was 16 miles north 
of the project in 32 feet of water.  This buoy, like the project site, was within the 
Canaveral bight.  (Tr. 5/195; app. ex. D-5)  The NDBC buoys provide hourly data that 
include “wind speed, wind gusts, atmospheric pressure, air temperature, sea 
temperature, wave height, wave direction, and wave period.”  (R4, tab 1 at 205)  The 
data could be downloaded from the site (app. proposed finding of fact (APFOF) ¶ 
105)).  If a contractor was unwilling to download and analyze the data itself, there 
were numerous coastal engineers in Florida who could do it for the contractor 
(tr. 5/214). 
 
19.  Other data sources listed in the solicitation included a USACE wave 
information study site located nine miles to the east of the project site that provided “a 
hindcast time series of wave heights, periods, and directions taken at 1-hour intervals 
for the 32-year period extending from 1980-2012, at a station located in 21 meters 
(69 feet) of water.”  The solicitation also listed a Florida Institute of Technology site to 
the south that provided data (real-time and archived) including “wind speed, wind 
direction, atmospheric pressure, air temperature, sea temperature, water level, wave 
height, wave period, and wave direction.”  (R4, tab 1 at 205) 
 

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20.  While these data sources were not within the project site, they formed a 
triangle or triangles around the project site (tr. 5/204-06). 
 
21.  Neither party has provided the Board with wave data from these sites for 
the years prior to bid.  The parties have not provided any data at all from the USACE 
wave information study site or the Florida Institute of Technology site. 
 
22.  USACE scheduled a site visit at 10:00 a.m. on August 18, 2016, which 
Mr. Varela attended (app. supp. R4, tab 328 at 1).  The site visit consisted of a visit to 
the beach near the project site.  Mr. Varela informed Mr. Royo that the sea was calm.  
(Tr. 1/146-49; see app. supp. R4, tab 114 at 220 (recording waves of 0.53 to 0.58 
meters between 10:00 a.m. and 12:00 p.m. on August 18, 2016)).  SFI never visited the 
site in a boat or asked USACE for a more in-depth site visit before submitting its bid 
(tr. 1/148-49; tr. 2/26). 
 
23.  Neither SFI, nor any other offerors, submitted pre-bid questions about the 
weather or sea conditions (tr. 5/149). 
 
24.  SFI did not ask USACE or its subcontractors about water visibility at the 
site (tr. 2/43). 
 
25.  SFI bid the contract based on an assumption that it would place 7.5 mats 
per day (tr. 1/167). 
 
26.  The contract required SFI to place the mats at four to five sites in 2017 and 
five to six sites in 2018, or 40-50% in the first year and 50-60% in the second (R4, 
tab 1 at 424). 
 
The Contract 
 
27.  On September 29, 2016, USACE awarded SFI the above-captioned 
contract in the amount of $13,236,255.08 (R4, tab 55 at 2, 4).  The contract 
incorporated the solicitation (id.; R4, tab 1). 
 
28.  The contract required completion within 730 days after issuance of the 
notice to proceed (R4, tab 1 at 73).  USACE issued the notice to proceed on 
November 29, 2016 (R4, tab 3). 
 
29.  Prior to the start of construction, the contract required a variety of 
submittals, including an accident prevention plan, a quality control plan, and an 
environmental protection plan.  SFI would not be allowed to begin work until it 
received at least interim approval of these plans.  (R4, tab 1 at 147-48, 209, 299, 300, 
325-26) 

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30.  The contract required SFI to submit a preliminary project schedule within 
15 days of the notice to proceed, and an initial project schedule 42 days after the notice 
to proceed (R4, tab 1 at 237). 
 
SFI’s Work on the Project 
 
A.  The Barge 
 
31.  One of the key decisions for SFI was the type of barge that would hold the 
crane used for placement of the mats.  SFI bid the project with an anchor barge, which 
is a barge that floats on the surface and has an anchoring system.  SFI hoped it would 
alleviate harsh movements caused by sea conditions, but it had never used an anchor 
barge before.  (Tr. 3/95, 100-01; APFOF ¶ 181)). 
 
32.  John Wilson, the USACE contracting officer’s representative (COR) and 
project engineer, and Dr. Bodge testified credibly that a jack-up barge is more stable 
and enables a contractor to work in higher wave conditions (tr. 5/16; tr. 6/265; 
tr. 7/47).  A jack-up barge has four legs that are dropped to the bottom.  The platform 
is then raised above the water, allowing the contractor to avoid current and wave 
activity.  (Tr. 3/96; tr. 7/64)  COR Wilson testified that a jack-up barge would have 
allowed the contractor to work year-round and in rough seas (tr. 7/47).  He testified 
credibly that a floating barge is “really not what you want on a wave-rich 
environment” and that it would exacerbate water visibility issues (tr. 6/266).  He has 
been employed by USACE since 1987 but had never seen a contractor use an anchor 
barge to perform comparable work (tr. 6/257; 7/55-56). 
 
33.  SFI’s superintendent, Sal Daher, testified credibly that a jack-up barge 
would have been stable “like being on land” but that it would not have stopped the 
mats from swaying once they were in the water (tr. 2/129-30). 
 
34.  The Board concludes based on the weight of the evidence that a jack-up 
barge would have been more stable than an anchor barge and would have given SFI a 
greater ability to work in seas with higher waves/swells. 
 
B.  Submittals/Pre-Construction 
 
35.  On December 19, 2016, SFI submitted a preliminary project schedule 
showing that mat placement would begin on April 14, 2017 (app. supp. R4, tab 166 
at 1-2). 
 
36.  On April 7, 2017, SFI submitted an initial project schedule that pushed the 
start of mat placement to May 9, 2017 (R4, tab 169 at 42-43).  In reviewing the 
schedule, USACE commented that it was not clear if SFI had taken weather into 

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account.  SFI responded that it had and that it planned on a six-day work week that 
gave it a seventh day if there was adverse weather.  (Id. at 5)   
 
37.  On May 26, 2017, SFI still had not begun mat placement.  Paul Cotter, the 
USACE resident engineer and administrative contracting officer (ACO), issued a letter 
of noncompliance to SFI.  Among other things, ACO Cotter stated that SFI’s accident 
prevention plan, quality control plan, and environmental protection plan had not been 
approved and required re-submittal.  He also observed that SFI had only fabricated 
18 mats to date and that most of them had not been cured properly.  (R4, tab 12 at 1, 3) 
 
38.  On June 16, 2017, ACO Cotter wrote to SFI by email.  He stated that SFI 
had reported for weeks that the barge was being outfitted and then that it was ready to 
go.  However, he had gone to see the barge the day before and found that it was not 
ready.  (R4, tab 556 at 1; tr. 6/32-33). 
 
C.  2017 Mat Placement 
 
39.  The parties agree that the contract required one tugboat per barge and that 
the tugboat had to stay with the barge (tr. 1/132; tr. 2/68; tr. 6/44; R4, tab 1 at 739).  In 
2017, SFI used one barge, one tug, and one diver in the water (tr. 1/219; tr. 6/44-45).  
This was not efficient because when all the mats on the barge had been placed, the 
barge and tug had to return to port and restock, which could mean two or more days 
with no mat placement (tr. 6/44; R4, tab 4 at 351, 353). 
 
40.  Paul Stynchcomb, SFI’s expert in construction management and 
scheduling, performed an analysis of wave conditions, and prepared several graphs.  
The graphs show that most days from May 6 to June 27, 2017, had recorded wave 
heights of less than 3 feet, with only occasional spikes above that level (ex. D-6 at 2-
3).  Accordingly, the Board finds that SFI wasted more than a month in which it was 
feasible to work. 
 
41.  On June 27, 2017, SFI began mat placement but managed to place only two 
mats even though the wave heights were just 1.3 feet (R4, tab 5 at 464-65).  On 
June 28, 2025, it placed six mats in waves of 1.0 feet (id. at 468-69). 
 
42.  After the first two days of placement, SFI experienced delays for which it 
was responsible involving the ladder on the barge and the motor on its crew transport 
boat (tr. 6/35-36, 175-79).  With these delays and subsequent weekends and 
Independence Day, it did not resume mat placement until July 11, 2017 (R4, tab 5 
at 513; app. ex. D-11 at 1). 
 
43.  The Board finds that all of the delays through July 10, 2017, were the fault 
of SFI. 

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44.  As of July 31, 2017, SFI had placed only 90 mats (ex. G-14 at 2; app. 
ex. D-11 at 1). 
 
45.  SFI was unable to work on July 31 and August 1, 2017, because of a 
tropical storm (R4, tab 4 at 373, 377). 
 
46.  As of August 31, 2017, SFI had placed 234 mats (ex. G-14 at 2; app. ex. D-
11 at 1). 
 
47.  Hurricane Irma made landfall in the Florida Keys on September 10, 2017, 
and then moved to the north, reaching north Florida on September 11.  
https://www.weather.gov/mfl/hurricaneirma. 
 
48.  Merely observing that the hurricane was over Florida for two days 
understates the effect on the project.  The USACE quality assurance report for 
September 4, 2017, states that SFI placed 13 mats before stopping to prepare for Irma.  
USACE stated that the seas were 1-2 feet that day. (R4, tab 4 at 484)  The USACE 
quality assurance report for September 5, 2017, states that Port Canaveral had denied 
SFI’s request to remain at the port for the hurricane; SFI eventually brought the barge 
to Green Cove Springs, Florida (id. at 489, 493).  By September 7 the seas were 5-6 
feet (id. at 493).  On September 8, they were 7-8 feet (id. at 496).  On September 9, 
they were 8-10 feet (id. at 499).  On September 10-11, when the hurricane was over 
Florida, the seas reached 23 feet  (id. at 502, 505).  On September 12, 2017, the seas 
were 6-7 feet; on September 13, they were 4 feet (id. at 508, 511).  While the seas then 
briefly returned to the 2–4-foot level, by September 16, 2017, they were back to 5-7 
feet (id. at 514, 517, 520).  Two more hurricanes, albeit not as close to Florida, were 
yet to come. 
 
49.  In an October 2, 2017 email to USACE, SFI stated that its invoice for 
September was “next to nothing due to the effects of hurricane[s] Irma, Jose and 
Maria” (R4, tab 4 at 577).  More than a year later, by letter dated November 21, 2018, 
from SFI to ACO Cotter, SFI requested a time extension and attached a report by a 
meteorologist analyzing weather on the east coast of Florida in September 2017 (R4, 
tab 36 at 3).  The analysis stated: 
 
September of 2017 was a particularly difficult month due 
mainly to tropical cyclones . . .  Hurricane Irma tracked 
north through the western Florida peninsula and shows up 
in the data from roughly September 7-12. Hurricane Jose 
tracked through the Atlantic well east of Florida, but it 
shows up in the sea state data from about September 17-20, 
and hurricane Maria tracked north to the east of Florida a 

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bit later in the month, and shows up in the data from about 
September 23-27. 
 
(Id. at 14).  While there were short gaps of time between the three hurricanes, the sea 
did not sufficiently calm for SFI to resume work before the next hurricane (or the end 
of the season) occurred. 
 
50.  By letter dated October 10, 2017, SFI notified ACO Cotter that it was 
demobilizing for the season.  It stated that “deteriorating weather conditions since 
September 4, 2017, Hurricane Irma, have hampered our ability to return to normal 
operations.”  (R4, tab 14) 
 
51.  SFI placed 252 mats in 2017 (Ex. G-14 at 2; app. ex. D-11 at 2).  This was 
about 15.4% of the total and far short of the 40-50% required by the contract.  As 
described above, SFI had informed USACE that it had planned the work based on a 
six-day work week, which, in theory, gave SFI some cushion if there was adverse 
weather (or other delays), even if it had bid zero weather days from July through 
September (findings 15, 36).  Despite the schedule, the record shows that SFI placed 
mats on only three Saturdays and three Sundays in 2017 (Ex. G-14 at 2; app. ex. D11 
at 1-2).  For example, the SFI quality control reports for Saturday, July 29 and Sunday 
July 30, 2017, state that there were 1.0-foot seas but that these were non-workdays and 
that there were no SFI personnel at the site (R4, tab 5 at 581, 583).  The USACE 
quality assurance report for July 31, 2017, stated that SFI had not worked “by choice” 
the previous two days (R4 tab 4 at 373). 
 
52.  The Board further observes that SFI’s one-barge, one-tug operation that 
required a return to port to load mats and its failure to work on weekends resulted in 
five days without mat placement in July in a period of good sea conditions.  The 
record shows that SFI placed mats on Wednesday, July 19, 2017, and then returned to 
port (R4, tab 4 at 348).  It did not resume placing mats until Tuesday, July 25, 2017.  
SFI’s quality control reports list the sea conditions on every one of these days except 
Sunday, July 23, 2017.  On each of these days the seas are listed as 1.3 or 1.6 feet.  
(Ex. G-14 at 2; ex. D-11 at 1; R4, tab 5 at 547, 551, 555, 558, 560)  Thus, SFI failed to 
take advantage of five days of good weather. 
 
53.  In summary, the Board finds that SFI’s poor performance in 2017 was 
largely caused by its management and work plan, the late start, and the three 
hurricanes in September. 

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D.  2018 and 2019 Work 
 
54.  Contract section 01 32 01, paragraph 3.9, Failure to Achieve Progress, 
provides: 
 
Should the progress fall behind the approved project 
schedule for reasons other than those that are excusable 
within the terms of the contract, the CO may require 
provision of a written recovery plan for approval. The plan 
must detail how progress will be made-up to include which 
activities will be accelerated by adding additional crews, 
longer work hours, extra work days, etc. 
 
(R4, tab 1 at 242) 
 
55.  Citing this paragraph, ACO Cotter issued a notice of noncompliance to SFI 
on March 5, 2018.  He stated that SFI was approximately 225 days behind schedule 
but that he could not identify the exact number because SFI had failed to submit the 
required periodic schedule updates.  While he acknowledged that there had been 
“several tropical storms” in September 2017, he observed that SFI had not requested a 
time extension.  He demanded that SFI submit a recovery schedule per paragraph 
3.9.3, Recovery Schedule (R4, tab 20 at 2-4) 
 
56.  On March 15, 2018, SFI met with USACE officials to discuss the project 
(tr. 1/215).  SFI then made three important changes for 2018.  First, it changed its 
project manager (tr. 3/21).  Second, SFI added a second diver, which allowed for one 
diver at each end of the mat to maneuver it into place (tr. 1/219; tr. 3/178; tr. 6/44-45).  
This was important because, according to Sal Daher, SFI’s superintendent, SFI had 
had to pick up mats, which weighed about 12,000 pounds, and reposition them as 
many as 40 times to get them in the proper place (tr. 2/83, 102).  Third, SFI added a 
second barge, used as a dedicated material barge, and a second tug, that allowed for 
continuous placement rather than stopping for two or more days while the single barge 
returned to port and reloaded (tr. 1/190; tr. 2/68; 3/79; tr. 6/44). 
 
57.  SFI was able to begin mat placement in April 2018, in line with the 
placement season referenced in the solicitation.  On April 18-20, it placed 8, 10, and 
18 mats respectively (ex. G-14 at 3; app. ex. D-11 at 2) and appeared to be off to a 
good start.  But on April 21 USACE shut down SFI’s mat placement because it did not 
have a standby diver (R4, tab 5 at 1168).  ACO Cotter testified credibly that putting a 
diver in the water without a standby diver was a “heinous safety violation” (tr. 6/59).  
SFI remained shut down until April 28, 2018 (R4, tab 26 at 2). 
 
58.  Despite this initial misstep, the changes made by SFI resulted in a dramatic 

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12 
 
improvement in performance.  We observe, for example, that between June 1 and 12, 
2018, SFI placed more mats than in all of 2017 (Ex. G-14 at 3-4; app. ex. D11).  If it 
had continued at this rate, SFI would have completed the contract early.  But it did not 
recognize until it was too late that it was placing mats more quickly than it was 
manufacturing them.  While SFI eventually ordered its supplier to increase production, 
it was too late.  (Tr. 3/203, 208).  SFI released the second barge and tug boat from the 
site (tr. 3/210).  While it is not clear exactly when it stopped working with the two-
barge, two-tug system, SFI stopped recording hours for the second tug in its quality 
control reports on June 22, 2018 (R4, tab 5 at 1558)  SFI’s expert calculated that SFI’s 
average daily mat placement then dropped by more than 50% (app. ex. D-10). 
 
59.  SFI brought the second barge and tug back to the site on August 8, 2018 
(R4, tab 5 at 1694).  Another burst of productivity followed; SFI placed more mats 
from August 8 to 24 than it had in the 2017 season (ex. G-14 at 4; app. ex. D11 at 4). 
 
60.  The sea conditions remained good for the rest of August with waves 
ranging from about 1.0 to 2.5 feet (ex. D-6 at 11), but in the period from August 25-31, 
2018, SFI conducted placement on only August 29-30, when it placed 45 mats.  The 
delays during this period were the fault of SFI because it had placed 18 mats in the 
wrong location and it also had to wait for concrete test results (R4, tab 5 at 1745, 1747, 
1755; ex. G-14 at 4; app. ex. D-11 at 4). 
 
61.  The weather had already started to decline by September 8, 2018, when 
USACE noted no work that day due to powerful swells and an approaching hurricane 
(R4, tab 4 at 1052).  On September 11, 2018, USACE noted that SFI was demobilizing 
due to the approach of Hurricane Florence (id. at 1053).  On September 17, 2018, SFI 
stated in its quality control report that it had lost seven days due to “storm activity” 
(R4, tab 5 at 1800).  SFI placed 51 mats on September 19-20, 2018, but that was the 
end of its 2018 season (ex. G-14 at 5; app. ex. D-11 at 5). 
 
62.  On September 28, 2018, SFI notified ACO Cotter that due to deteriorating 
conditions after September 20, 2018 it had decided to demobilize from the site (R4, 
tab 33). 
 
63.  In 2018, SFI placed 69.4% of the mats, more than quadrupling its 2017 
performance, but not enough to make up for the poor results in that year (ex. G-14; 
app. ex. D11). 
 
64.  SFI mobilized for a third season and resumed mat placement on June 5, 
2019.  It placed the final mats on June 22, 2019.  (R4, tab 5 at 2323, 2357).  Due to 
some minor changes, the final number of mats increased from 1,620 to 1,638 (ex. G-14 
at 5). 
 

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SFI’s Certified Claim 
 
65.  On October  21, 2020, SFI submitted a certified claim seeking $2,838,231 
(R4, tab 50).  The crux of SFI’s claim was that the weather in April, May, and 
September “differed vastly from the working conditions forecasted in the Contract 
Documents” (id. at 13).  Among other things, SFI complained that during these 
months, waves often exceeded one meter2, which caused “murky underwater 
conditions” and “rendered the requisite underwater diving operations unsafe, as well as 
impeding the ability of the crane barge to remain on position for the precision mat 
placement requirements.” (Id.)  SFI contended that it was able to work on only 11.1% 
of the available workdays in September 2017, 46.2% of the workdays in April and 
May 2018, and on 29.2% of the workdays in September 2018 (id.). 
 
66.  Exhibit 8 to SFI’s claim was a report by Locus Weather (R4, tab 50(h)).  
While not signed, the first page of the document lists four people with degrees in 
Atmospheric Sciences or Meteorology.  The report states that the best source of data is 
the weather buoys in the region and that Locus Weather had used the data from the 
National Data Buoy Center.  The wave data in the report is based on Buoy 41113 (16 
miles to the north of the project site), Buoy 41009 to the northeast (20 miles east of 
Cape Canaveral), and Buoy 41114 (40 miles to the south) (id. at 3; ex. D-5). 
 
67.  Locus Weather observed that wave heights greater than one meter occurred 
more frequently at Buoy 41009, “which makes sense as it is farther offshore” (id. at 4).  
It concluded that the other two buoys, which are closer to shore, “may be a better 
indicator of difficult conditions at the job site” but that data from 410009 “should not 
be totally discounted” (id.).  Locus Weather prepared a spreadsheet identifying days 
when waves exceeded one meter.  The spreadsheet supported SFI to the extent that it 
showed that most days from September 7, 2017, to the end of that month had waves of 
at least one meter and that there were also numerous days in April, May and 
September of 2018, with waves of at least one meter, albeit less so at Buoy 41113 (id. 
at 13-15, 19). 
 
68.  Because SFI’s claim focuses on poor water visibility and high 
waves/swells, we will summarize the evidence on both issues. 
  
 
2 1 meter = 3.28 feet or 3 feet, 3 and 3/8 inches 

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Water Visibility3 
 
69.  To begin, the Rule 4 file does not document a consistent problem with low 
visibility water.  Appellant’s expert, Mr. Stynchcomb, summarized the evidence as 
follows: 
 
Q (App. counsel) And did you also assess visibility 
impacts in connection with this analysis? 
 
A There were constant complaints about turbidity, but the 
record only shows three or four days in which the -- the 
divers could not see. So that was a -- a bit more elusive to -
- to try to pin down to a day. 
 
(Tr. 8/38-39) 
 
70.  Despite the lack of documentation, witness testimony convinced the Board 
that the site often had low visibility.  SFI Superintendent Daher, Dr. Bodge, and COR 
Wilson all agreed that the water could be turbid or low visibility when there was 
significant wave activity (tr. 2/144; 5/35; 7/80). 
 
71.  The Board will now consider whether the low visibility impacted the 
divers, and whether the conditions were foreseeable by bidders. 
 
72.  SFI did not use ordinary laborers to place the mats but rather professional 
divers (tr. 1/102).  Unrebutted testimony establishes that such divers often work in low 
visibility water.  SFI’s president, Mr. Royo, Brevard’s consultant, Dr. Bodge, and 
USACE’s construction representative, Howard Lyons, all agreed on this point 
(tr. 1/105; 2/40; 5/36; 6/142, 194, 254).  While this might have left the door open to 
testimony from the divers that the water was worse than the low visibility water that 
they usually experience, SFI did not present testimony from any of the divers.  
Accordingly, SFI has not proven that the visibility at the site was outside the range of 
what commercial divers ordinarily encounter. 
 
73.  As to foreseeability, we have already found that SFI did not ask USACE or 
any of its subcontractors about visibility prior to bid (finding 24).  SFI seems to have 
 
3 During the hearing, the parties frequently used the words “turbid” and “turbidity” 
when discussing low visibility water.  Turbidity refers to sediment suspended in 
the water and is one cause of low visibility.  From a coastal engineering 
perspective when discussing diving operations, it is more common to speak of 
“visibility.”  (Tr. 4/240)   
 

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had a rather passive approach; Mr. Royo testified he did not discuss visibility with the 
subcontractors because he assumed they would tell him about any such issues without 
him asking (tr. 2/43). 
 
74.  Part of the problem may be SFI’s location in Broward County, Florida and 
its lack of experience in Brevard County (tr. 1/49; finding 11).  Dr. Bodge testified 
credibly that southeast Florida, of which Broward is part, has “chronically good 
underwater visibility” (tr. 5/35).  Brevard County is only five counties north of 
Broward.4  But, as Dr. Bodge explained, there is a big change in water conditions 
north of Palm Beach County, such that the conditions in Brevard are “the polar 
opposite” of southeast Florida (id.). 
 
75.  Dr. Bodge testified credibly that commercial divers would “absolutely” be 
aware of how water visibility changes as one moves up the coast (id.).  Moreover, even 
if SFI did not know what the visibility is like, the information is readily obtainable 
through research or discussions with people experienced in the area (tr. 5/36).  SFI did 
not present any testimony to the contrary. 
 
76.  Accordingly, the Board finds that the water visibility issues were 
foreseeable prior to bid. 
 
Wave Heights 
 
77.  Superintendent Daher testified concerning the difficulty of mat placement 
at various wave heights.  He testified that if the waves were 2 feet or less, SFI was able 
to work.  He described placing mats in waves in the 2- to 3-foot range as 
“manageable” but that it started to become more difficult after 2 feet.  He testified that 
work became increasingly difficult after the waves exceeded 3 feet.  He described 
work in 4-foot waves as “very difficult to almost unmanageable at times.”  (Tr. 2/98-
99).  He acknowledged that SFI placed mats on a limited number of days where there 
were seas greater than 4 feet (tr. 2/99, 145). 
 
78.  Mr. Stynchcomb prepared an exhibit showing that SFI placed 83% of its 
mats when waves were 2.0 feet or less and 98% of the mats when waves were 2.5 feet 
or less.  He found that SFI placed no mats in seas above 3 feet.  (Ex. D-8)  While we 
believe it is true that SFI placed the vast majority of the mats in seas less than 3 feet, 
Mr. Stynchcomb’s analysis is not entirely accurate based on Mr. Daher’s testimony.  
Mr. Stynchcomb was forced to admit on cross examination that there were days in 
which SFI placed mats in 4-foot seas (tr. 8/102). 
 
4 From north to south, the counties are:  Brevard, Indian River, St. Lucie, Martin, 
Palm Beach, Broward, and Miami-Dade.  
https://floridadep.gov/sites/default/files/CPI-coastal-Florida-map.pdf.   

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79.  There is no dispute that waves of 3-feet or more occurred on a significant 
number of days or that SFI was progressively less successful as wave heights 
increased.  Rather, the dispute is whether the conditions were foreseeable based on a 
review of the data from the NDBC buoys.  To answer that question we must determine 
whether these buoys provided a reasonable approximation of the site conditions. 
 
80.  The only SFI fact witness who might have been able to answer this 
question was Mr. Daher.  But he never observed conditions at the buoy sites.  He 
testified that he was 15 miles from a buoy.  This may be an overstatement but, based 
on his testimony that the crew boat would travel to the site at 100 yards from the 
beach, he may never have been within several miles of a buoy (tr. 2/125-127). 
 
81.  We turn to SFI’s daily quality control reports.  In 2017, SFI recorded wave 
heights by citing Buoy 41113 until August 7, 2017 (R4, tab 5 at 610; tr. 3/37).  In the 
days that followed, SFI stopped recording wave heights (e.g., R4, tab 5 at 614, 617).  
On some days for the remainder of the project SFI stated that there were “high swells” 
or “heavy swells” or “rough seas” (id. at 620, 652, 1210, 1660).  There are also some 
days where SFI did list wave heights but without identifying the source of the 
information (e.g., R4, tab 5 at 1140, 1460). 
 
82.  SFI’s quality control manager was responsible for preparing the quality 
control reports (tr. 3/28).   Unfortunately, he did not testify and we do not know why 
he failed to keep consistent track of sea conditions or what the source of his 
information was when he did list wave heights. 
 
83.  We next turn to SFI’s experts.  As described above, in its certified claim, 
SFI submitted a report from Locus Weather that described the area buoys as the “best 
source for data…” (finding 66).  While the report examined data from three buoys, it 
concluded that Buoy 41113 and Buoy 41114 (to the south) would give the most 
accurate information for the project site (finding 67) 
 
84.  SFI’s testifying expert, Mr. Stynchcomb, prepared an analysis of wave 
heights at the project site to determine the number of compensable weather days 
(tr. 8/16-18, 38-40).  He reviewed SFI’s daily reports and other documents but found 
that “[t]here were large periods of time in which there was no report” (tr. 8/39).  
Mr. Stynchcomb used Buoy 41113 to prepare a graphical depiction of the wave 
heights in each work season and to prepare the table in which he concluded that SFI 
placed 98% of the mats in seas of 2.5 feet or less (app. ex. D-6, D-8).  He used this 
buoy because it was “fairly close” to the site and he believed it was “the best we could 
do” (tr. 8/17-18, 106).  Mr. Stynchcomb spent two to three days downloading the data 
and preparing the graph and table (tr. 8/114). 
 

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85.  Dr. Bodge testified that the data from the NDBC buoys would have 
provided “a good historical overview of the kind of conditions that have been observed 
[in the Mid-Reach] over the last 10, 15, 20 years prior to reef construction” (tr. 5/27). 
 
86.  Based on this record, there is no basis for the Board to conclude that the 
site conditions differed in a meaningful way from those at the NDBC buoys. 
 
87.  The only NBDC data in the record prior to bid is from Buoy 41113 in 
2016.  The Board observes that this buoy recorded wave heights greater than one 
meter on 29 of the 91 days from April 1 to June 30, 2016.  (R4, tab 114 at 87-173)  
Accordingly, if SFI had reviewed this data, it would have realized that a bid based on 
five weather days per season was unreasonable. 
 
The Superior Knowledge Claim 
 
88.  SFI contends that USACE had superior knowledge of the weather and site 
conditions.  SFI’s claim is largely based on a document that Dr. Bodge wrote in 2007 
when he was employed by Olsen Associates, Inc., entitled “Practical Considerations of 
Depth for the Construction of Nearshore Mitigation along the Mid Reach Coastline of 
Brevard County, Florida” (hereinafter “Olsen 2007”) (R4, tab 135).  SFI was not 
aware of, and did not obtain Olsen 2007, until after it filed this appeal (tr. 1/188-89).  
But it is undisputed that Brevard County had provided Olsen 2007 to USACE before 
USACE issued the solicitation (R4, tab 137b at 20). 
 
Olsen 2007 and Bodge 2013 
 
89.  Olsen 2007 is a document Dr. Bodge wrote on behalf of Brevard County, 
which wanted to replenish the sand on its beaches (tr. 4/127, 146, 166).  The 
replenishment was complicated by the presence of natural rock outcroppings (or reefs) 
that extend 400 feet from the shoreline to water depths of about -4 feet mean low water 
(tr. 4/140-42; tr. 5/9; R4, tab 135 at 2).  While these rocks can be a nuisance to bathers, 
they provide habitat for ocean life (tr. 4/142-43).  A large-scale addition of sand would 
bury the rocks, which necessitated the development of “mitigation features” (id. 
at 140-41, 143). 
 
90.  Dr. Bodge crafted a two-step approach in which an artificial reef would be 
constructed in tandem with the beach replenishment (id. at 149-51).  In about 2005, he 
proposed a “simple mattress and boulder solution,” which was rejected by the 
regulatory agency, the Florida Department of Environmental Protection (FDEP) (id. 
at 148-49, 161). 
 
91.  Dr. Bodge drafted the Olsen 2007 report in response to questions he had 
received from the regulators, who wanted “in-kind mitigation” (tr. 4/192, 194; 5/9).  

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This would have required construction of the artificial reef where the naturally 
occurring rocks were, which was in the surf zone. 
 
92.  Dr. Bodge did not believe that construction of an artificial reef in the surf 
zone in Brevard County was safe or feasible.  In Olsen 2007 he set out to explain why.  
(Tr. 5/9-11)  With respect to safety, he stated that the placement of an artificial reef in 
the surf zone near shore could lead to drownings, broken bones, or other injuries (R4, 
tab 135 at 19-20). 
 
93.  With respect to construction, prior to writing the report, Dr. Bodge 
purchased information about waves in the Mid-Reach from a Dr. William Dally.  This 
information is referred to as the “Dally Data.”  The Dally Data are a hindcast, meaning 
that it involves modeled predictions of past conditions, rather than data from buoys.  
The Dally Data contains wave height information from June 1954 to June 2004 and 
consists of 1,449 pages and 73,000 lines.  (R4, tabs 131a-131i; tab 109 at 3; tr. 5/22-
23; APFOF 46-47, 104)  The Dally Data came from water 1 to 3 feet deeper5 than the 
project site.  While the precise location is unclear, it is closer to the project site than 
the NDBC buoys.  (Tr. 5/23; R4, tab 135 at 7 (stating that the Dally Data was recorded 
offshore of R-106); R4, tab 1 at 209 (stating that the project area includes 
unincorporated Brevard County from R-105 to R-119)) 
 
94.  Dr. Bodge obtained the Dally Data because it “was packaged and ready to 
use” (tr. 5/45).  But Dr. Bodge believes that the data from the NDBC buoys would 
have provided “a good historical overview of the kind of conditions that have been 
observed [in the Mid-Reach] over the last 10, 15, 20 years prior to reef construction.”  
He testified that he would not expect the Dally Data to be significantly different from 
the buoy data.  (Tr. 5/27, 42-43) 
 
95.  Neither party has provided the Board with an analysis comparing the Dally 
Data to data from the NDBC buoys.  Accordingly, we do not know if there is any 
difference in the wave heights in the two sources and there is no basis for the Board to 
conclude that the Dally Data was superior to the NDBC buoy data. 
 
96.  Olsen 2007 contains a mixture of Dr. Bodge’s observations of the site, 
analysis of the Dally Data, and opinions about how the sea conditions will affect 
construction access to the site. 
 
5 We draw this conclusion by reconciling the standards used in Olsen 2007 to reflect 
water depth.  The Dally Data comes from water -19.4 ft. NGVD (National 
Geodetic Vertical Datum), which equates to -17.5 ft. MLLW (mean low low 
water) (R4, tab 135 at 7, n.7).  -17.5 MLLW would be approximately -17.2 feet 
MLW (mean low water) (id. at 21), which is about 1 to 3 feet deeper than the 
areas in which SFI placed the mats.    

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97.  Dr. Bodge observed in Olsen 2007 that the water in the Mid-Reach has 
“chronically limited, near-zero visibility” (R4, tab 135 at 6).  (He testified that he 
defined near zero visibility to mean visibility of 0 to 6 feet at most (tr. 5/33)).  With 
respect to wave heights, Dr. Bodge expressed the opinion that the sea conditions are 
well known: “[t]he general area - from Cocoa Beach through Satellite Beach and 
Indialantic -- is well known for its consistent, high swell. It is not coincidental that 
multi-time world surfing champions Kelly Slater, Lisa Anderson, and others, grew up 
surfing in this area” (R4, tab 135 at 6). 
 
98.  Dr. Bodge expressed an opinion concerning the maximum wave heights in 
which a contractor would schedule work and in which it would be feasible to work, an 
opinion that was much more pessimistic than SFI’s 4-foot projection: 
 
In general, a significant wave height of 2-ft or less is a 
reasonable proxy for the maximum swell in which a 
marine contractor would schedule or conduct vessel 
operations for the present work. Work in 3-ft seas is mostly 
infeasible. 
 
(Id. at 7)   
 
99.  Based on his review of the Dally Data, Dr. Bodge stated that the site 
experienced significant wave heights
6 of 2 feet or less only 25% of the year.  In the 
calmest months - June, July, and August - seas of 2 feet or less occurred somewhat 
more frequently: 33% - 48% of the time.  Dr. Bodge then opined that the marine 
construction window for the project was “pragmatically limited to between mid-May 
and mid-September.”  (Id. at 9) 
 
100.  Dr. Bodge compared waves in Brevard County to those in West Palm 
Beach and Ft. Lauderdale.  He stated that in those locations waves were 1 foot or less 
20% of the time and were at the 1-2 foot level 32% of the time.  By contrast, in the 
Mid-Reach waves were 1 foot or less only 2% of the time and were at the 1-2 foot 
level 21% of the time.  (R4, tab 135 at 12).  He also stated that on any given day, wave 
heights in the Mid-Reach were 47% larger than in West Palm Beach and 69% larger 
than in Ft. Lauderdale (id. at 14). 
  
 
6 Significant wave height means “the average height of the highest one-third of waves 
encountered over a specified period of time.”  Bean Dredging, LLC v. United 
States, 699 F. Supp. 2d 118, 123 (D.D.C. 2010) 

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101.  In the conclusion of his analysis of construction access issues, Dr. Bodge 
stated: 
 
The construction of mitigation reef structures in shallow 
water along Palm Beach and Broward Counties is not 
evidence that such structures can be practically 
constructed along the Mid Reach. Particularly in light of 
the greater distances that separate the Mid Reach site from 
the nearest port, the generally higher seas, and the less-
frequent duration of calm-seas, the ability to safely and 
reliably work in very shallow nearshore waters is 
significantly more limited along the Mid Reach than in 
south Florida. 
 
(Id.) (Emphasis by Dr. Bodge) 
 
102.  It is important to note that Olsen 2007 is focused on the difficulties of 
working in water from +1 to -4 feet mean low water where the natural rock 
outcroppings were present.  As Dr. Bodge testified, the purpose of the report “was 
strictly to identify the seabed depth at which these restructures [sic] may be 
constructed, which differed from the very, very shallow depths which the regulatory 
agencies had requested the placement” (tr. 5/7-8).  While the report is dense and 
somewhat opaque at times, there is abundant support in the report for this testimony 
(R4, tab 135 at 2-3 (discussing probes taken at -3 to -6 ft MSL); at 3 and 6 (analyzing 
construction of the reef from shore which would restrict placement to within 60 ft. of 
shore); at 5 (analyzing difficulties of placement in less than 8 feet of water and also 
opining that 8 to 14 foot depths would also cause problems) at 6 (opining that the surf 
would cause the mats to fracture the natural reef); and at 19 (discussing dangers posed 
to swimmers if mats were placed in the swimming area).  Dr. Bodge did not opine 
about the difficulties of working at -14 to -16 feet mean sea level with proper 
equipment and there is simply no way to know if any of the statements in the report 
concerning the difficulties of working in 3-foot waves in the surf zone would apply to 
working in 3-foot swells 1,000 feet from shore. 
 
103.  Dr. Bodge explained why it would be so difficult to work close to the 
beach: 
 
As seas rise, the ability to work in shallow water declines 
sharply. At issue is not only the wave surge - but also the 
risk of losing moorings or anchoring or other control of a 
vessel when in such shallow water. That is, in shallow 
water, closer to shore, the margin of physical space and 
water available to maneuver and recover control of a large 

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vessel - before it becomes dangerously and/or intractably 
lost to the surf - is of paramount concern. 
 
(R4, tab 135 at 7).  While this is again not perfectly clear, the references to “the margin 
of physical space” and the danger of losing control of the vessel in the surf, suggest 
that he was only trying to explain to the regulatory agency why they should not build 
the artificial reef in the same place as the existing reef, that is, in water to a depth of -4 
feet. 
 
104.  Dr. Bodge did not analyze in depth how equipment choices would affect 
the work but he suggested that if a jack-up barge were used the problems he described 
would be reduced to transporting the barge from port to the site (id.).  At the hearing 
he testified that equipment choice was “fundamentally important” (tr. 5/17). 
 
105.  With respect to his opinions concerning the feasibility of working in 2- 
and 3-foot seas, Dr. Bodge testified that he had used these numbers because 
“operations often change when you get to two to three feet” (tr. 5/76).  He testified that 
he did not consider 3 feet to be the actual limit at which the mats could be placed, but 
rather “a threshold for consideration of operations,” and that he had performed marine 
construction from an oil platform in seas of up to six feet (tr. 5/74, 76).  He testified 
that the purpose of his report was strictly to identify the depth at which the artificial 
reef could be placed, and not to be a definitive analysis of when and how they could be 
constructed, and that it was not intended for the development of cost estimates (tr. 5/7-
8, 61-62).  He testified that whether the contractor could actually work in 3-foot seas 
would be determined by the type of equipment it used, the number of pieces of 
equipment, the contractor’s work plan and schedule (tr. 5/15). 
 
Bodge 2013 
 
106.  More than five years after Olsen 2007, Dr. Bodge wrote a memorandum 
to a Brevard County official entitled “Mid Reach Reef Mitigation Design” (R4, 
tab 136) (Bodge 2013).  USACE had Bodge 2013 while it was preparing the 
solicitation (R4, tab 137b at 20).  The purpose of Bodge 2013 was to relay “several 
additional ideas related to the fabrication & installation” of the mats (id. at 1).  Most of 
the memorandum is not relevant to this dispute.  However, the last page contains a cost 
estimate in which Dr. Bodge made some statements or assumptions that SFI relies 
upon in further support of its superior knowledge claim. 
 
107.  Dr. Bodge calculated a cost of $1,534,000 for the first acre based on what 
appears to be a season of “May-August only” (R4, tab 136 at 5).  He then adds “[f]or 
construction that continues into or after mid-September, add $600,000” (id.).  He also 
stated that additional acres “might cost, say, $1,270,000” (id.).  The phrasing appears 

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22 
 
to indicate these are just rough estimates and we observe that the actual award price 
was about double Dr. Bodge’s estimate (finding 27). 
 
108.  Dr. Bodge’s estimate also assumed “plus, say, 50 weather days” (R4, 
tab 136 at 5). 
 
109.  The Bodge 2013 estimate takes up about one page (id.).  Dr. Bodge 
described it at the hearing as “spitballing ideas” (tr. 5/114). 
 
Claim Denial and Appeal 
 
110.  On March 26, 2021, CO Grisell Gonzalez-Aquino denied SFI’s claim (R4, 
tab 49). 
 
111.  SFI filed a timely appeal on April 6, 2021, that the Board docketed as 
No. 62876. 
 
SFI’s Damages 
 
112.  SFI’s expert, Mr. Stynchcomb, calculated a total of $2,664,084 in 
damages (app. ex. D-13).  He itemized this amount as follows: 
 
Delay, lost productivity, and acceleration costs:   
 $1,382,585 
2018-19 hiatus & 2019 mobilization and demobilization: 
 $642,645   
General and administrative costs of 15.6%:    
 $314,982 
Profit at 10.2%:      
 $238,702 
Bond premium of 0.887%:     
 $22,870 
 Change proposal preparation costs:    
 $62,300 
 
 TOTAL  = $2,664,084 
(Id.) 
 
113.  The delay damages are based on Mr. Stynchcomb’s calculation that there 
were 92 weather delay days, of which 61 days were compensable (ex. G-18 at 4).  Of 
the 61 days, 21 occurred during what he called the “Olsen Window” of May 15 to 
September 15 in which the seas were from three to four feet (id. at 4, 22; tr. 8/43 ).   
He classified days with waves greater than four feet as excusable but not compensable, 

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apparently because SFI had not planned to work on those days (ex. G-18 at 22; 
tr. 8/45)). 
 
114.  The remaining 41 compensable days occurred between September 16 to 
October 1, 2017, April 1 to May 15, 2018, and September 16 to October 1, 2018.  
During these periods Mr. Stynchcomb classified all days in which SFI could not work 
due to weather as compensable.  (Tr. 8/43)  It is not entirely clear why he applied a 
different standard for these periods other than that he believed SFI “should not have 
been working during those periods” (tr. 8/14; app. ex. D-29). 
 
115.  In his calculation of 61 compensable weather days, Mr. Stynchcomb 
included 18 compensable weather days in September 2017 that correspond with the 
three hurricanes (app. ex. D-29 at 1-2). 
 
116.  Mr. Stynchcomb included a total of 16 compensable weather days from 
April 2018, which was identified in the solicitation as the last month of the inclement 
weather season.  Four of these days were also days in which USACE had shut down 
SFI for failure to maintain safe diving conditions (app. ex. D-29 at 3; findings 7, 57). 
 
117.  Mr. Stynchcomb counted two compensable weather days in September 
2018 that correspond to Hurricane Florence ((app. ex. D-29 at 5; finding 61). 
 
118.  Mr. Stynchcomb also calculated that SFI experienced a 20-day loss of 
productivity in 2018 when it placed mats in the April 2 to May 15 period and during 
the summer months when it was working with only one barge and one tug (app. ex. D-
16)  
 
119.  Mr. Stynchcomb testified that there is nothing unique about the waves in 
Brevard County.  In response to a question from USACE counsel, he agreed that a 2.5-
foot wave is the same regardless of whether it is in Brevard County or in south Florida.  
(Tr. 8/101) 
 
USACE’s Liquidated Damages Claim 
 
120.  The contract incorporated FAR 52.211-12, LIQUIDATED DAMAGES – 
CONSTRUCTION (SEPT 2000).  The clause provided: 
 
(a) If the Contractor fails to complete the work within the 
time specified in the contract, the Contractor shall pay 
liquidated damages to the Government in the amount of 

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$1,230 for each calendar day of delay until the work is 
completed or accepted. 
 
(R4, tab 1 at 502). 
 
121.  The contract did not contain any provision listing the number of expected 
adverse weather days per month.  Instead, it contained a chart listing the average 
number of days per month with rain greater than 0.1 inches: 
 
Gage Name Jan Feb Mar Apr May Jun Jul Aug Sep Oct Nov Dec 
Melbourne 
Intl Airport, 
FL 
 
 
4.2 
 
 
4.5 
 
 
4.5 
 
 
3.5 
 
 
4.7 
 
 
9.2 
 
 
8.7 
 
 
10.4 
 
 
9.3 
 
 
6.8 
 
 
4.1 
 
 
3.6 
 
(R4, tab 1 at 206) 
 
122.  COR Wilson testified credibly that mat placement would not be affected 
by rainfall; it would be more affected by “oceanographic influences” (tr. 7/19).  A light 
rainfall might actually aid mat fabrication (id. at 20). 
 
123.  On February 16, 2023, CO Gonzalez-Aquino issued a final decision 
assessing $249,690 in liquidated damages based on her finding that SFI did not 
complete the contract until August 1, 2019 (R4, tab 58 at 4).  She found that there were 
42 excusable but non-compensable adverse weather days, which extended the contract 
completion date to January 10, 2019.  She assessed the liquidated damages based on 
the 203 days from January 11, 2019 to August 1, 2019.  (Id.) 
 
124.  CO Gonzalez-Aquino also issued Modification No. P00002 (Mod. P2) 
which extended the contract completion date by the 42 excusable weather days (R4, 
tab 57).  The modification showed how she had calculated the number of days of 
delay.  She found that there was a total of 84 days in which the weather caused a 
critical delay (37 in 2017 and 47 in 2018).  She treated the chart showing the average 
number of days of rain greater than 0.1 inches as days of adverse weather and 
subtracted this from the number of weather delay days.  For example, with respect to 
September 2017, she found that there were 25 days in which the weather caused 
critical day.  She then subtracted the 9.3 days of rain greater than 0.1 inches (finding 
121) to reach an excusable delay of 15.7 days, which she rounded up to 16 days.  She 
went through a similar exercise in all other months, finding that SFI was also entitled 
to an extension of nine days in April 2018, nine days in May 2018, and eight days in 
September 2018.  (Id. at 2) 
 
125.  In its post-hearing brief, USACE explains the assessment of liquidated 
damages through August 1, 2019, by pointing to its quality assurance report for that 

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25 
 
date.  The report states that three SFI workers were at the site that day to install a buoy 
marker at mat set no. 2 (R4, tab 5 at 2437). 
 
126.  SFI filed a timely appeal on May 12, 2023, that the Board docketed as 
No. 63616. 
DECISION 
 
ASBCA No. 62876 
 
I.  Superior Knowledge 
 
The superior knowledge at issue is Olsen 2007 (and, to a lesser extent, Bodge 
2013), which, according to SFI, contained vital knowledge and should have been 
disclosed.  SFI does not contend that USACE should have given bidders the 1,449 
pages of the Dally Data, and there is no evidence that the Dally Data would have been 
easier to review or provided superior data to that which was available from the NDBC 
buoys (finding 95).  SFI is relying solely upon Dr. Bodge’s interpretation of the Dally 
Data, as well as his observations of the site and his opinions related to construction. 
 
A.  Standards of Review 
 
The superior knowledge doctrine “is generally applied to situations where:  (1) 
a contractor undertook to perform without vital knowledge of a fact that affects 
performance costs or duration; (2) the government was aware the contractor had no 
knowledge of and had no reason to obtain such information; (3) any contract 
specification supplied misled the contractor or did not put it on notice to inquire; and 
(4) the government failed to provide the relevant information.”  Giesler v. United 
States, 232 F.3d 864, 876 (Fed. Cir. 2000) (citing Hercules Inc. v. United States, 
24 F.3d 188, 196 (Fed. Cir. 1994)). 
 
“[A]s a general matter, the Government may be found in breach of a contract 
where it deliberately withholds information vital to the contract’s performance, 
thereby misleading the contractor and causing him injury.”  Petrofsky v. United States, 
616 F.2d 494, 497 (Ct. Cl. 1980) (citing Helene Curtis Indus., Inc. v. United States, 
312 F.2d 774, 777-78 (Ct. Cl. 1963)).  “The corollary to this rule is that the 
Government is under no duty to volunteer information which the contractor can 
reasonably be expected to seek out himself.”  Id. (citing H. N. Bailey & Assoc. v. 
United States, 449 F.2d 376, 383 (Ct. Cl. 1971)).  The government is not obligated to 
volunteer facts that “could reasonably have been discovered through [the contractor’s] 
own investigation and pursuit of leads given by the contract papers.”  Hunt & Willett, 
Inc. v. United States, 351 F.2d 980, 985 (Ct. Cl. 1964).  The contractor cannot claim to 
be misled unless it reviewed the information to which it was directed by the contract.  
Id. at 986 (contractor failed to investigate the site and failed to examine logs of drill 

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holes).  For example, in a case involving the manufacture of a steel shoe for armored 
personnel carriers, the Court of Claims held that the government was not liable 
because the information in question could have been obtained from “metallurgical 
literature.”  Firestone Tire & Rubber Co. v. United States, 558 F.2d 577, 589 (Ct. Cl. 
1977); accord Giesler, 232 F.2d at 877 (government not liable because the ingredients 
of a nut mix labeled “CID A-A-20164” were publicly available); H.N. Bailey & Assoc. 
v. United States, 449 F.2d 376, 382-83 (Ct. Cl. 1971) (information necessary for 
casting a manganese bronze alloy was obtainable from “textbooks and other scholarly 
works”). 
 
“A Government contractor, regardless of its size, locality or experience, is 
bound to understand the complexities and consequences of its undertaking.”  Tony 
Downs Foods Co. v. United States, 530 F.2d 367, 374 (Ct. Cl. 1976).  Thus, the 
government does not have a duty to inquire into the knowledge of an experienced 
contractor.  GAF Corp. v. United States, 932 F.2d 947, 949 (Fed. Cir. 1991).  The 
government is not required to attach a warning to a solicitation that states “only 
knowledgeable and experienced contractors need apply.”  Am. Ship Bldg. Co. v. 
United States, 654 F.2d 75, 79 (Ct. Cl. 1981).  It is “reasonable for the government to 
assume that a contractor is the best judge of its competency and will exercise good 
judgment in deciding to bid on a contract.”  Id.   
 
B.  USACE Generally Disclosed the Weather Conditions that Affected the Site 
 
This is an appeal about weather that would occur up to about 26 months after 
USACE issued the solicitation (findings 1, 7, 26).  Weather that far into the future is 
not predictable with any certainty, although there may be general parameters of what 
can be expected. 
 
The solicitation contained multiple warnings about the types of unfavorable site 
conditions that could be encountered.  It informed bidders that:  a) April is part of the 
inclement weather season; b) the project area is subject to tropical storms and 
hurricanes from June to November; and c) stormy, windy, and rainy weather, 
including dangerous thunderstorms, can occur at any time of year (findings 8-9).  
USACE did not make any promises or representations that the seas would be calm or 
largely calm in the April 1st to October 1st timeframe. 
 
The weather that SFI experienced was consistent with the warnings in the 
solicitation.  SFI lost almost all of September 2017 to three hurricanes, as well as part 
of September 2018 to another hurricane (findings 47-49, 61).  To the extent it was 
necessary to warn SFI, a Florida-based contractor, that September was in the hurricane 
season, USACE included this in the solicitation (finding 8).  See Glasgow Assoc. v. 
United States, 495 F.2d 765, 769 (Ct. Cl. 1974) (Air Force was not required to warn 

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bidders of the risk that interest rates might change because they would know such 
changes are always possible). 
 
Similarly, SFI contends that it lost more than half of April 2018 to poor weather 
(finding 116).  The solicitation informed bidders that April was an inclement weather 
month (finding 7).  SFI can hardly claim to be surprised that there was some inclement 
weather in April.  The Board also observes that, despite this warning, SFI was able to 
place mats in April 2018 but had to stop because it did not maintain adequate diver 
safety practices (finding 57) 
 
The majority of the days that SFI claims as compensable delays relate to the 
hurricanes or April weather disclosed in the solicitation.  The remaining weather days 
(and at least some of the lost productivity days) relate to more discrete weather events 
of unknown origin that resulted in waves/swells at the project site that fall under the 
solicitation’s warning that the site is subject to stormy, windy, and rainy weather 
throughout the entire year.  See Hardeman-Monier-Hutcherson, J.V. v. United States, 
458 F.2d 1364, 1371 (Ct. Cl. 1972) (Hardeman) (observing that “it is difficult, if 
indeed not impossible, for us to separate the sea conditions from the weather.”). 
 
C.  SFI’s Bid Was Based on Errors in Judgment 
 
The record demonstrates that SFI would have learned of the water visibility 
issues and the relative frequency of waves exceeding three feet if it had conducted a 
proper pre-bid site investigation.  As we have found, SFI did not ask USACE or its 
subcontractors about water visibility conditions prior to bid (finding 24).  Dr. Bodge’s 
credible testimony convinced the Board that SFI’s diving subcontractor would have 
known of the water visibility issues in Brevard County and, even if it did not, this 
information is readily available from those who worked in these waters (finding 75). 
 
With respect to wave heights, SFI believed when it prepared its bid that it had 
the capability to place mats in seas up to four feet (finding 14).  This proved to be a 
serious misjudgment.  The record shows that SFI had little success in placing mats in 
seas more than 2.5 feet (finding 78).  SFI also did not understand what would cause 
waves/swells at the project site, so it relied on wind data from the Florida mainland.  
SFI’s overestimation of its mat placement capabilities and its use of wind data from 
the Florida mainland to calculate the number of weather days caused it to grossly 
underestimate the number of days in which the weather would prevent it from 
working.  (Findings 13-17)   
 
Wave height data was available for download from the NDBC website, among 
other sources (finding 18).  SFI disregarded these sources, despite being directed to 
them in the solicitation, and instead relied on wind data from the Florida mainland 
(findings 13-14).  While these buoys are outside the project site, the evidence has 

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convinced us that the buoys provide a reasonably accurate depiction of conditions 
at the project site (findings 66-67, 81-86).  SFI acted unreasonably in failing to review 
this data and, instead, relying on wind speed data from the mainland. 
 
In its reply brief, SFI invites the Board to disregard the buoy data and rely upon 
what SFI characterizes as testimony that conditions at the site were worse than at the 
buoys (app. reply at 15).  We decline this invitation because the witness to whom SFI 
refers, Superintendent Daher, never saw conditions at the buoys (finding 80). 
 
This leaves SFI in the difficult position of trying to justify its failure to rely on 
the buoy data at the time of bid (finding 13) while at the same time basing its claim on 
the very same buoys (findings 83-84).  The only plausible argument SFI makes to 
reconcile these positions comes from its expert, Mr. Stynchcomb.  He contended that 
downloading and analyzing the buoy data would have been too much work for a 
contractor to do in the limited time it had to prepare the bid (tr. 8/106, 114).  He 
testified that it took him two to three days to perform this task (finding 84).  The Board 
does not view two to three days as unreasonable because SFI had more than six weeks 
to prepare its bid (finding 1).  Moreover, even if this was beyond SFI’s capabilities, 
there were numerous coastal engineers it could have retained to perform the task 
(finding 18). 
 
Finally, SFI compounded these errors by selecting an anchor barge, which it 
had never used before.  This barge floated on the water and likely exacerbated water 
visibility issues.  SFI should have used a jack-up barge, which would have isolated the 
barge from the movement of the waves.  (Findings 31-34) 
 
D.  USACE Was Not Obligated to Provide the Bodge Documents to Bidders 
 
According to SFI, Olsen 2007 contained four categories of vital information:  
1) the statement that 2 feet was “a reasonable proxy for the maximum swell” a 
contractor would schedule vessel operations in the Mid-Reach, with work in 3-foot 
seas being “mostly infeasible”; 2) Dr. Bodge’s “synthesis of the wave climate” using 
the Dally Data; 3) his categorization of the construction season as being 
“pragmatically limited” to the mid-May to mid-September period; and 4) his 
description of the water as having “chronically limited, near-zero underwater visibility 
(app. br. at PFOF 53, and p. 72). 
 
Our findings have addressed much of this.  The visibility of the water was well 
known, as were general weather and sea condition trends in the area, and SFI would 
have discovered this pre-bid if it had made reasonable inquiries (findings 6, 75, 97).  
Similarly, wave information for 2016 and prior years was available from the NDBC 
buoys and other sources to the north, east, and south of the project site (findings 18-

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20).  SFI has not shown that the Dally Data provides information about the site 
conditions that was not available from the NDBC buoys (finding 95). 
 
However, Dr. Bodge’s statement that 2 feet was a “reasonable proxy” for the 
maximum swell in which a contractor would schedule work and that work in 3-foot 
seas was “mostly infeasible” is another matter.  The prediction that working in 3-foot 
seas would be mostly infeasible was consistent with SFI’s experience, and we 
understand why SFI relies on it.  However, there are several problems with SFI’s 
reliance. 
 
Dr. Bodge’s intent when he wrote the report was to explain to the regulatory 
agencies why it was not safe or feasible to work in the very shallow waters within 400 
feet of shore at a maximum depth of -4 feet, mean low water (findings 92, 102).  
Dr. Bodge never stated in his report that working in 3-foot seas was infeasible if the 
contractor was working in -14 to -16 feet, mean low water.  His report contains no 
analysis of equipment choices, other than a single sentence in which he implied that a 
jack-up barge would alleviate some of the problems discussed in the report (finding 
104).  He testified credibly at the hearing that equipment choice would be 
“fundamentally important” (finding 104).  Accordingly, because Olsen 2007 did not 
address the actual project to be built, it risked misleading or confusing contractors.  
See Am. Ship Bldg., 654 F.2d at 79 (“[i]t would be irresponsible procurement to seek 
to deter bidders from bidding, or even seem to do so”). 
 
Second, Dr. Bodge, who was a percipient witness, did not work for USACE, 
and there is no evidence that USACE shared the opinions that contractors would be 
unwilling to work in seas greater than 3 feet or that they would be able to work only 
from May 15 to September 15.  Testimony at the hearing showed that USACE 
believed that a contractor could work at higher wave levels with proper equipment and 
could possibly work year-round (finding 32). 
 
Third, even if USACE agreed with Dr. Bodge, Dr. Bodge was merely offering 
his opinion on the maximum swells in which a contractor could work and the length of 
the placement season (if it were placing mats in very shallow water).  The first prong 
of the superior knowledge test speaks of the contractor performing “without vital 
knowledge of a fact that affects performance. . .”  Giesler, 232 F.3d at 876 (emphasis 
added).  Opinions are not facts, and both the Board and the Court of Federal Claims 
have held that undisclosed opinions are not superior knowledge.  ACC Constr. Co., 
Inc., ASBCA Nos. 62265, 62937, 22-1 BCA ¶ 38,194 at 185,481 aff’d 2024 WL 
2064620 (Fed. Cir. 2024).  As the Court of Federal Claims explained in Northrop 
Grumman Corp. v. United States, 47 Fed. Cl. 20, 90 (2000), a technical judgment or 
prediction made by the government is “not a ‘fact’ that affected performance cost or 
duration.” 
 

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Finally, to the extent that SFI relies on Bodge 2013, this document contains a 
less than one-page estimate that Dr. Bodge described at the hearing as “spitballing 
ideas” (finding 109).  The Board determines that this rough estimate was not well 
thought out and was not vital knowledge that USACE was obligated to provide to 
bidders. 
 
E.  Hardeman-Monier-Hutcherson and H&L Contracting Do Not Compel a  
Different Result 
 
In SFI II, the Board denied the government’s summary judgment motion with 
respect to superior knowledge based on the Court of Claims’ decision in Hardeman.  
SFI II, 24-1 BCA at 187,679.  There are some similarities between that case and the 
present appeal:  both involved sea conditions that were more difficult than expected, 
and the agency had information about those conditions that it did not disclose.  After 
further development of the record in this appeal, the Board concludes that the 
similarities end there. 
 
The Hardeman contract involved a project to construct a pier in a remote, 
uninhabited area of Australia, 850 miles from Perth, in the 1960s.  Hardeman, 
458 F.2d at 1365.  The government commissioned two site investigations to decide 
upon the location and design of the pier.  The first investigation was cut short after the 
vessel captain concluded that no one would build a pier at the location due to the 
severe weather and sea conditions.  The second investigation also encountered bad 
weather and rough seas.  Id. at 1365-66.   The plaintiff made a concerted effort to 
research the site conditions but found only limited information.  Id. at 1367, 1369.  It 
requested the reports commissioned by the government, but the government refused to 
provide them.  Id. at 1367. The solicitation warned bidders about winds and cyclones 
but also stated that clear weather could be expected over large portions of the year.  Id. 
at 1366-67. 
 
This appeal is far different.  As we have already explained at length, the site 
at issue is just off the coast of Florida where there was abundant data available for 
download from the internet.  SFI simply failed to do an adequate site investigation.  
Moreover, the Olsen 2007 report prepared for regulators to address why the mats 
should not be placed in very shallow water (different from the depths required by the 
contract) does not compare to the reports in Hardeman, which were directly on point 
to the project and were the only meaningful source of data.  Id. at 1369. 
 
Finally, the Board’s recent decision in H&L Contracting LLC, ASBCA 
No. 63695, 25-1 BCA ¶ 38,896 also does not help SFI.  H&L Contracting involved a 
USACE contract to dredge a harbor.  Unlike here, USACE’s solicitation made specific 
representations about the sea conditions at the project site, including wave heights, that 
the Board found to be misleading.  Id. at 189,346-47.  USACE had dredged the same 

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harbor 12 years earlier in 2010 and had included in that solicitation more information 
and warnings about the severe sea swells that could be expected and dictated minimal 
equipment requirements to deal with the conditions.  Instead of including the same 
information, warnings and requirements in the subsequent solicitation, USACE based 
its description of sea conditions on those in a different harbor five miles up the coast, 
where the dredging contractor had successfully used equipment less robust than 
USACE had previously deemed necessary for the harbor at issue.  Id. at 189,336-37. 
 
In addition, USACE possessed, but did not disclose, specific factual 
information about the wave conditions at the project site that the Board found would 
have prevented the contractor from selecting inadequate equipment for the job.  Id. 
at 189,337-39, 344-46.  The Board emphasized that the contractor’s bid was 
reasonable in light of the fact that the solicitation’s representations led USACE’s own 
internal estimating team to reach the same faulty conclusions about the sea conditions 
as the contractor had.  Id. at 189,344-47.  The contractor, however, encountered 
conditions similar to those described in the 2010 solicitation and in the undisclosed 
information and, as a result, incurred increased costs.  Id. at 189,342-43.  The Board 
held the agency liable for withholding superior knowledge. 
 
H&L Contracting is not comparable to this appeal.  The solicitation here did not 
contain misleading misrepresentations as to the wave conditions SFI could expect, and 
there was no prior contract at the site from which USACE could incorporate a 
description of the sea conditions.  While USACE did have Olsen 2007, that document 
addresses placement of mats in very shallow water, which was not the goal of the 
contract awarded to SFI.  Unlike the undisclosed information in H&L Contracting, 
nothing in Olsen 2007 or Bodge 2013 rendered the information in the solicitation 
misleading to SFI. 
 
For all of the foregoing reasons, SFI’s superior knowledge claim is denied. 
 
II.  Constructive Acceleration 
 
In the alternative, SFI contends that it is entitled to recover under a constructive 
acceleration theory.  To recover for such a claim, the Federal Circuit has held that the 
contractor must prove that:  (1) the contractor encountered a delay that is excusable 
under the contract; (2) the contractor made a timely and sufficient request for an 
extension of the contract schedule; (3) the government denied the contractor’s request 
for an extension or failed to act on it within a reasonable time; (4) the government 
insisted on completion of the contract within a period shorter than the period to which 
the contractor would be entitled by taking into account the period of excusable delay, 
after which the contractor notified the government that it regarded the alleged order to 
accelerate as a constructive change in the contract; and (5) the contractor was required 

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to expend extra resources to compensate for the lost time and remain on schedule.  
Zafer Taahhut Insaat v. Ticaret A.S., 833 F.3d 1356, 1362 (Fed. Cir. 2016). 
 
To establish excusable delay, a contractor “must show that the delay resulted 
from ‘unforeseeable causes beyond the control and without the fault or negligence of 
the Contractor.’”  Sauer Inc. v. Danzig, 224 F.3d 1340, 1345 (Fed. Cir. 2000) (quoting 
48 C.F.R. § 52.249–10(b)(1)). 
 
SFI’s claim stems from ACO Cotter’s March 5, 2018 letter in which he stated 
that SFI was approximately 225 days behind schedule and demanded a recovery 
schedule, while acknowledging that there had been some excusable delays, that is, 
“several tropical storms” in September 2017 (finding 55). 
 
ACO Cotter’s actions were consistent with contract section 01 32 01, paragraph 
3.9, Failure to Achieve Progress.  This clause allowed the CO, if he concluded that the 
contractor was behind schedule, to “require provision of a written recovery plan” that 
“detail[ed] how progress will be made-up to include which activities will be 
accelerated by adding additional crews, longer work hours, extra work days, etc.” 
(finding 54). 
 
SFI cannot prove a constructive acceleration claim because the vast majority of 
the delays as of March 5, 2018, had been caused by SFI and were not excusable.  
When ACO Cotter wrote the March 5 letter, he knew that he had spent a significant 
amount of time in the spring of 2017 urging SFI to begin mat placement and 
inspecting SFI’s preparations, only to find that SFI had not been candid about its 
readiness (findings 37-38).  He also knew that SFI had done almost nothing in terms of 
mat placement prior to July 11, 2017, more than halfway through the season (finding 
41-43).  As discussed above, SFI’s slow progress in 2017 was caused by its use of a 
single anchor barge and a single diver, its failure to consistently work on weekends, 
and its mistaken belief that it could place mats in seas up to 4 feet, among other things 
(findings 32, 52-53, 56, 58, 78). 
 
While it is true that USACE later agreed that there were 37 weather days in 
2017 (finding 124), a more realistic bid than SFI’s would have anticipated many of 
these days (finding 87).  In any event, SFI had not requested a time extension as of 
March 5, 2018, and did not do so until after the 2018 season (finding 49).  Because SFI 
failed to request a time extension prior to the 2018 season, it also did not advise 
USACE that its failure to issue the time extension was tantamount to an order to 
accelerate. 
 

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Accordingly, SFI cannot meet the first four elements of a constructive 
acceleration claim. 
 
III.  Breach of the Duty of Good Faith and Fair Dealing 
 
SFI contends that USACE breached the duty of good faith and fair dealing by 
not providing SFI with Olsen 2007 and Bodge 2013 and by not rejecting SFI’s initial 
schedule and work plan.  SFI also contends that it is entitled to compensation under the 
Changes clause “given the divergence of the ‘estimate, or general guideline’ provided 
by USACE from actual conditions” (app. br. at 89). 
 
As the Federal Circuit explained in Scott Timber Co. v. United States, 692 F.3d 
1365, 1372 (Fed. Cir. 2012), USACE could not have breached the duty of good faith 
and fair dealing by not providing bidders with the Bodge documents because the duty 
does not exist until the contract is signed. 
 
As for the alleged duty to reject SFI’s schedule and work plan, USACE raised 
concerns about whether SFI had accounted for weather in its schedule, to which SFI 
responded that it had considered the weather and planned to work a six-day week, and 
could work a seventh day if necessary.  This turned out not to be entirely true.  
(Findings 36, 42, 52)  But in May 2017, USACE was unaware of how inept SFI would 
be at placing mats in 2017 and did not know that three hurricanes would impact the 
site in September 2017.  Under the circumstances, USACE acted within its discretion 
in accepting SFI’s assurances and in not rejecting the schedule. 
 
Finally, with respect to SFI’s theory based on the Changes clause, weather 
conditions historically have been viewed as acts of God for which the contractor is not 
entitled to increased costs.  The Changes clause does not shift the risk of adverse 
weather to the government.  Turnkey Enters., Inc. v. United States, 220 Ct. Cl. 179, 
186-87 (1979).  The Board sees no reason to depart from that rule in this appeal. 
 
ASBCA No. 63616 
 
The assessment of liquidated damages is an affirmative government claim for 
which the government bears the burden of proving that the contractor failed to 
complete the project on time.  Liquidated damages cannot be assessed on a 
construction contract after the date the project is substantially completed.  Whether the 
contract is substantially complete is a factual determination made by the Board after 
considering the quantity of work remaining to be done and the extent to which the 
project was capable of serving its intended purpose.  Amigo Bldg. Corp., ASBCA 
No. 54329, 05-2 BCA ¶ 33,047 at 163,823. 
 

DOCUMENT FOR PUBLIC RELEASE                                                                                           
The decision issued on the date below is subject to an ASBCA Protective Order.          
This version has been approved for public release. 
 
34 
 
USACE has clearly met its burden of proving that SFI did not complete the 
contract on time.  The pertinent questions, in our view, are the date that SFI achieved 
substantial completion and whether the time extension in Mod. P2 was calculated and 
applied correctly. 
 
SFI’s affirmative claim was the primary focus of the eight-day hearing, not 
USACE’s liquidated damages claim.  Based on the evidence that the Board heard, the 
purpose of the project was to allow Brevard County to replenish the sand on its 
beaches, the price for which was the construction of an artificial reef (findings 89-90).  
USACE’s own evidence showed that SFI completed construction of the artificial reef 
by placing the last mat on June 22, 2019 (finding 64).  Neither party addressed through 
testimony the buoy marker installed by SFI on August 1, 2025, but, as far as we can 
tell, this was a minor shortcoming that did not prevent the project from serving its 
intended purpose.  The Board finds that SFI achieved substantial completion on 
June 22, 2019. 
 
Next, we consider whether the CO properly calculated the time extension to 
which SFI was entitled and whether she applied the extension correctly.  With respect 
to the former question, the Board holds that the CO did not calculate the extension 
correctly.  The CO determined that there were 84 weather days from which she 
subtracted 42 adverse weather days that she believed were in the contract, for a net 42-
day time extension (finding 124).  However, the contract did not contain a clause 
listing an expected number of adverse weather days.  It contained a clause listing only 
days with at least 0.1 inches of rain, information that was not particularly notable 
because a light rain might actually have been helpful to SFI (findings 121-22).  The 
clause containing the expected number of days with rain of at least 0.1 inch cannot be 
treated as an adverse weather day clause.  Accordingly, we conclude that SFI is 
entitled to a full 84-day extension. 
 
The more difficult question is determining the period to which the extension 
should be applied.  The CO started the time extension on the contract completion date, 
resulting in an extension to January 10, 2019 (finding 123).  Adding another 42 days to 
this would result in a completion date of February 21, 2019.  However, under these 
circumstances, where the record suggests that winter is mostly unsuitable for 
construction (findings 5-6), the Board does not believe that it would be reasonable to 
require a contractor to attempt to place mats in the December through February time 
period. 
 
It is more reasonable in our view to apply the time extension to the placement 
season identified in the contract, which starts on April 1 (finding 7).  84 days starting 
from April 1, 2019, is June 23, 2019.  Because SFI achieved substantial completion 
one day earlier on June 22, 2019, no liquidated damages are due. 
 

DOCUMENT FOR PUBLIC RELEASE                                                                                           
The decision issued on the date below is subject to an ASBCA Protective Order.          
This version has been approved for public release. 
 
35 
 
CONCLUSION 
 
ASBCA No. 62876 is denied.  ASBCA No. 63616 is sustained. 
 
 Dated:  April 6, 2026 
 
 
 
 
 
 
 
 
 
 
 
MICHAEL N. O’CONNELL 
Administrative Judge 
Vice Chairman 
Armed Services Board 
of Contract Appeals 
I concur 
 
 
 
OWEN C. WILSON 
Administrative Judge 
Acting Chairman 
Armed Services Board 
of Contract Appeals 
 I concur 
 
 
 
 THOMAS P. MCLISH 
Administrative Judge 
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 Nos. 62876, 63616,
 Appeals of 
Shoreline Foundation, Inc., rendered in conformance with the Board’s Charter. 
 
 Dated:  
 
 
 
 
 
 
 
 
PAULLA K. GATES-LEWIS 
Recorder, Armed Services 
Board of Contract Appeals