RLB Contracting, Inc.
Docket: ASBCA 57638
Decision date: 2014-01-03

ARMED SERVICES BOARD OF CONTRACT APPEALS 
Appeal of--
RLB Contracting, Inc. 
Under Contract No. W912P8-07-C-0102 
APPEARANCES FOR THE APPELLANT: 
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APPEARANCES FOR THE GOVERNMENT: 
ASBCA No. 57638 
Christopher B. Conley, Esq. 
Daniel J. Caruso, Esq. 
Simon, Peragine, Smith & Redfearn, L.L.P. 
New Orleans, LA 
Thomas H. Gourlay, Jr., Esq. 
Engineer Chief Trial Attorney 
William G. Meiners, Esq. 
Engineer Trial Attorney 
U.S. Army Engineer District, New Orleans 
OPINION BY ADMINISTRATIVE JUDGE THRASHER 
This appeal involves a Corps of Engineers (Corps) contract with RLB Contracting, 
Inc., (RLB) to enlarge a levee in southwest Louisiana using borrow material excavated 
from an adjacent ditch and the resulting claim arising from the realignment of the 
adjacent ditch. We have jurisdiction under the Contract Disputes Act of 1978 (CDA), 
41 U.S.C. §§ 7101-7109. The government concedes entitlement and this decision only 
addresses quantum. 
FINDINGS OF FACT 
The Project Solicitation 
1. The Corps issued Solicitation No. W912P9-07-B-0019 (solicitation) on 
2 July 2007 to enlarge the Gordy 
Levee, part of the Atchafalaya Basin, Levees West of 
Berwick, West Bayou Sale (Bayou Sale project) located in southwest Louisiana 1 (supp. 
R4, tab 1). The location of the levee and the adjacent borrow ditch was in close 
proximity to the Gulf of Mexico and East Cote Blanche Bay (supp. R4, tab 43, Drawing 
No. 8) The solicited work consisted of clearing and grubbing, excavating the borrow 
ditch, trimming outfall drainage pipes in the existing ditch, constructing compacted fill 
levee embankment, removing and replacing culverts under ramps, placing surfacing 
1 The solicitation was for a sealed bid 100% HUB Zone set-aside fixed-price constructi1 
contract. 

material on the levee crown and ramps, fertilizing, seeding and mulching, installation of a 
new gas line, and other incidental work (supp. R4, tab 1 ). The largest single performance 
requirement of the solicitation, and the work at issue here, was the excavation and 
embankment work requiring the contractor to excavate soil from an adjacent ditch and 
use that soil to enlarge an existing levee (supp. R4, tab 1 at 02318-a, § 02332). As 
originally designed, the levee was required to be constructed to a grade of elevation 
+ 12.5' (supp. R4, tab 43, Drawing No. 8). 
2. The excavation and embankment work was addressed in the bid schedule as a 
work item for "Embankment, Compacted Fill" at contract line item number (CLIN) 0004 
(embankment work), with an estimated quantity of 197,200 cubic yards (CYs) of material 
to be placed (supp. R4, tab 1 at 00010-3). The bid schedule contained no separate line 
item for the contractor's work in excavating the embankment material from the borrow 
source, nor for processing 
the material prior to placement. Instead, the cost and payment 
for this part of the job was included within the embankment work line item. In addition, 
Section 02332 
provided that the contractor would only be paid for the embankment work 
for the amount of cubic yards of material measured and placed on the levee. (Supp. R4, 
tab 1 at 02318-1, 02332-3). The specifications did allow for payment of embankment 
placed that was the subject of settlement, but only if the contractor installed settlement 
gages in accordance with the terms of the contract. The contract provided that the 
contractor will forfeit payment for settlement if settlement gages (settlement plates) are 
not installed ''in strict accordance" with the specifications and 
drawings (supp. R4, tab 1 
at 02332-4, ~ 1.4.3). RLB elected not to install settlement plates (tr. 1168-70). 
3. The solicitation contained the standard contract plans and specifications found 
in most levee construction projects but additionally imposed special requirements on the 
project that increased the complexity of the scheduling on the contract (app. 2nd supp. R4, 
tab 23 at 2). Section No. 02332 of the contract, "Embankment", included the following 
requirements: 
a. The specifications provided that the embankment and berms were to be 
constructed 
from the earth obtained from the borrow areas described in Section 02318, 
"EXCAVATION," and as shown on the drawings (supp. R4, tab 1 at 02332-8, ~ 1.7.1). 
b. The "borrow area" of the contract was a drainage ditch located to the east of the 
levee. Although the distance varied, it was approximately forty ( 40) feet from the toe of 
the levee. The borrow area included a mandatory excavation area between Sta. 501 +00 
and Sta. 738+00. (Supp. R4, tab 1 at 02318-1, ~ 1.1) However, levee construction was 
not required for the entire length of the borrow area. Levee construction was only 
required from Sta. 462+22 to Sta. 596+00. This meant the contractor would construct 
approximately 13,400 feet oflevee, but the adjacent ditch from which the mandatory 
borrow would be excavated was some 23,700 feet in length. (Supp. R4, tab 43, Drawing 
No.8) The levee reach from station 464+00 to station 474+00 (1,000 linear feet) did 
2 

have additional adjacent borrow, but excavation of that borrow was not mandatory. Also, 
as depicted in the contract drawings, there was no adjacent borrow along the levee from 
station 474+00 to station 501+00 (2,700 linear feet). (Supp. R4, tab 43, Drawing No.2) 
c. The contract also mandated specific requirements to control the moisture 
content of the embankment material. The specifications required the contractor to 
perform the "necessary work in moisture control to bring the material" within the 
specified moisture content range providing that "[i]fthe material is too wet, it shall either 
be stockpiled and allowed to drain and/or the wet material shall be processed by disking 
and harrowing, if necessary, until the moisture content is reduced sufficiently." The 
contract only allowed placement of borrow material in the levee if it was within+/- 10% 
of the optimal moisture content, as established by testing. 2 The contract required that 
RLB perform testing to establish the optimal moisture content of the material to be placed 
in the levee. (Supp. R4, tab 1 at 02332-8, ~ 1.7.3, at 02332-5, ~ 1.5.1(10); tr. 1/160-61) 
d. The contract drawings identified available processing and stockpiling areas 
along the levee reach, but also included certain prohibitions. Drawing 8, Note 1, states 
that processing of material on the protected side of the levee was allowed (except within 
identified ranges) but subject to certain restrictions. Processing of material could not 
exceed 2 feet in height and could be placed no closer than 10 feet from the natural bank 
line ofthe ditch. Drawing 8, Note 4, states "PROCESSED MATERIAL AND 
TEMPORARY STOCKPILES IN THIS AREA TO BE NO CLOSER THAN 10FT 
FROM TOP OF CUT AT ALL TIMES." Drawing 8, Note 5, states "TEMPORARY 
STOCKPILES AND PROCESSING MATERIAL SHALL NOT BE ALLOWED OR 
PERMITTED IN OR ON ANY CONSTRUCTED LEVEE FILL." (Supp. R4, tab 43, 
Drawing No.8) 
e. There were also restrictions on the method used to place material. The contract 
required the embankment to be placed in layers and specification Section 02332, ~ 3.2.1, 
states in relevant part "Layers shall be started full out to 
the slope stakes and shall be 
carried substantially horizontal and parallel to the levee centerline with sufficient crown 
or slope to provide satisfactory drainage during construction." This latter provision 
2 Mr. Boyd explained the concept of optimal moisture content during the hearing 
(tr. 1141-42). It is our understanding that the concept can be summarized as 
follows: Any sample of soil will retain water. For any sample there is a 
percentage of moisture, as a proportion of the weight of the solid material, at 
which it is at its maximum compactibility, as determined by a standard 
compaction test. The point of maximum compactibility is expressed as a figure 
known as the "optimum moisture content." This figure will vary with different 
types of soil. The concept of optimal moisture content and how it was to be 
measured under the contract are not at issue. 
3 

effectively placed the toe of the levee 10 feet from the top of the ditch excavation. (Supp. 
R4, tab 1 at 02332-10) 
f. The specifications also specifically limited the work area under construction at 
any given time. The specifications required only 2,500 Linear Feet (LF) could be 
dewatered at one time and only 4000 LF of levee could be under construction at one time, 
which was reduced to 2,000 LF during hurricane season. (Supp. R4, tab 1 at 02332-10, 
-11, ~ 3.2.2) 
RLB's Bid 
4. RLB was formed in 2000 by its president, Mr. Randy Boyd, specifically to 
provide Corps dredging support of the intercoastal waterway dredging, levees and shore 
protection or, as Mr. Boyd stated in his testimony, specializing in wet dirt work (tr. 1134). 
However, prior to this job, RLB had no experience with construction of a flood control 
levee or with the optimal moisture content requirements that were included in this 
contract (tr. 1152, 149). Although Mr. Boyd formed RLB in 2000, during his testimony 
he described in detail his extensive personal experience working on dredging and levee 
construction projects dating back to 1976 (tr. 1135-38). Mr. Boyd prepared RLB's bid on 
the Bayou Sale project beginning with a review of the plans and specifications to develop 
a preliminary estimate (tr. 1138-39). After developing a preliminary estimate, based upon 
the solicitation documentation, he visited the site to develop an approach to the job- the 
method of operations to perform the required excavation and levee construction 
(tr. 1/39-40). Mr. Boyd concluded that the soil to be excavated was some of the best soil 
that he had ever encountered in southern Louisiana. (Tr. 1140) Mr. Boyd roughly 
estimated that 75% of the material would be sufficiently dry while the remaining 25% 
would be wetter material coming from the bottom of the ditch (tr. 1141). When 
determining how the work would be performed and the associated costs, Mr. Boyd 
believed there were two primary restricting parameters that had to be followed: 
(1) optimal moisture content of levee fill material; and (2) incremental areas ofthe levee 
that could be worked on at one time (tr. 1/53). 
Estimate of Optimum Moisture Content 
5. Mr. Boyd explained in his testimony that the moisture level of the excavated 
material was critical to the success of this project because it directly determined the 
amount of work required to achieve the project's optimal moisture content (tr. 1153). He 
estimated the optimal moisture content of the excavated soil to be between 20% and· 
22%. The soil sample moisture contents provided in the plans implied the average 
moisture content of excavated material to be between 20%-30%. (Tr. 11167-68) 
However, the material could not be placed upon the levee unless it was within 10% of the 
optimum moisture content (supp. R4, tab 1 at 02332-8, -9, ~ 1.7.3). Mr. Boyd also 
testified he reviewed the drawings included in the solicitation plans and specifications as 
4 

part of preparation ofRLB's bid (tr. 1144-45). The drawings included core volumes and 
samplings taken at the project site showing the moisture content of the soil at the location 
of the individual samples. Although the drawings were prepared in October 2006, the 
dates associated with the samples indicate they were taken in the 1987-88 time frame 
(supp. R4, tab 43). 
Direct Placement Strategy 
6. Mr. Boyd determined the worksite would have to relocate at various times 
during performance because of the contract requirements that construction of the levee 
could only be performed in 4,000 foot sections during non-hurricane season and only 
2,000 foot sections 
the remainder of the year (tr. 1/53-54). Given these two parameters 
and other information, Mr. Boyd developed a plan of operation upon which RLB's bid 
was based, referred to as "direct placement." By using the design templates of the 
borrow pit and levee construction, Mr. Boyd was able to determine where he had to 
excavate and how much material would be excavated. As to the location, he explained 
that his review of the plans and specifications indicated that the levee ran from 
approximately Sta. 464 to Sta. 596 but the borrow excavation was mandatory between 
Sta. 50 1 and Sta. 7 41. His review also revealed the borrow was parallel to the levee 
between Sta. 501-596. As a result, he determined the most economical and efficient 
way to complete the job would be to take borrow material directly from the 
borrow and directly place it on the levee within these locations and then haul 
material to the levee between Sta. 596-741 where this would not be possible. He 
concluded that the best method of operation was to utilize a long reach (100 foot boom), 
large bucket 88-B dragline to excavate the drier material on the far bank of the ditch and 
place it directly on top of the existing levee in incremental lifts. Mr. Boyd planned to 
excavate the remaining wet material with excavators and process it as needed on the 
existing levee berm. (Tr. 1151-54) 
7. The plans and solicitation stated that the excavated material would yield 
approximately 197,200 CYs of compacted, in-place material. Mr. Boyd concluded that 
approximately 232,000 CYs of material would be excavated to yield the government's 
estimated 197,200 CY s of compacted levee fill material. By calculating the average 
moisture content of that excavated material utilizing the Corps moisture reports contained 
on Sheet 15 of the plans and specifications he calculated a pit-to-fill ratio of 1.18.3 
(Tr. 1/217-18) 
3 The pit-to-fill ratio is the ratio of excavated dirt required to place one cubic yard of dirt 
on the levee. The wetter the dirt, the higher the ratio, and more dirt required to be 
excavated to place the same amount of dirt. 
5 

Bid Price 
8. RLB's total bid was $3,348,141.80. RLB's bid preparation documents show 
that RLB calculated a unit price of$10.04 perCY to perform the embankment work. 
(Supp. R4, tab 38 at 10, Bid Item 4) The bid component for CLIN 0004, Embankment, 
Compacted Fill was $1,774,800.00 based upon a government estimate of 197,200 CYs at 
a unit price of $9 CY (R4, tab 7). Mr. Boyd acknowledged that, while he computed 
RLB's price perCY for the embankment work to be $10.04, he only bid that line item at 
$9.00 perCY. He testified that it was his practice to "shop monies around" through the 
bid schedule, in ways that were best for 
the company, for cash flow reasons (tr. 1/81-83, 
194-97). 
Independent Government Estimate 
9. RLB was the apparent low bidder at $3,343,000 (app. 2nd supp. R4, tabs 41-47). 
The independent government estimate (IGE) for the project was $4,824,244, including a 
unit price of $17.90 per CY for the work under CLIN 0004, "Embankment, Compacted 
Fill" (R4, tab 8). Due to the discrepancy between the IGE and the contractor's bid price, 
on 10 August 2007 the contracting officer (CO) sent a letter to RLB requesting that it 
review and verify its bid "in order to prevent an unconscionable award" (R4, tab 9). By 
letter of 14 August 2007 RLB informed the CO that it had reviewed its bid and found it to 
be free of errors and valid as submitted (R4, tab 1 0). 
Contract Performance 
10. On 30 August 2007 the Corps awarded Contract No. W912P8-07-C-0102 
(contract) to RLB in the amount of$3,343,000 and the specified time of performance was 
397 calendar days from receipt of a Notice to Proceed (NTP) (R4, tab 11).4 Shortly 
thereafter the NTP was issued on 11 September 2007 (R4, tab 12). Ms. Sheila Enclade 
was the CO that participated in the bid evaluation and awarded the contract (tr. 1193). 
Contract administration was delegated to Mr. Ted Eilts, as administrative contracting 
officer (ACO) (supp. R4, tab 45). Although responsible for administration of the 
contract, Mr. Eilts only visited the site twice during the project (tr. 3/5-6). Mr. Larry 
Hayes was the project engineer on the project (app. 2nd R4, tab 49 at 17; tr. 3/6).5 
Although responsible for the day-to-day, on-site, oversight of the project, he was absent 
4 Modification No. A00002 increased the time of performance due to weather by 93 
calendar days and $59,500 and Modification No. P00001 by 82 calendar days due 
to added scope of work and $290,000 (R4, tabs 3, 5, 6). 
5 Mr. Hayes died shortly before the hearing. His testimony is derived from his deposition 
included in the Rule 4 file (tr. 3/139-40). 
6 

for the first nine months of the project (app. 2nd supp. R4, tab 49 at 33).6 As a result, 
Mr. Chaisson, the quality assurance representative, was the only Corps representative on 
the job site and involved with performance of the contract on a daily basis (id. at 18, 33). 
11. On 20 September 2007, a preconstruction conference was held at the Corps' 
Lafayette Area Office. The record of that meeting states Mr. Boyd "explained that he 
planned on bringing in a large dragline and excavating the borrow area first, starting at 
Sta. 501+00 and continuing to Sta. 741+00. He would then drop back and start 
processing the material and constructing the levee." (R4, tab 13 at 2) On 19 October 
2007, RLB prepared and submitted to the government a construction schedule showing 
that it planned for the embankment work, including 
excavation, to commence on 
27 November 2007 and to end on 4 October 2008, a stated 
duration of 300 days (supp. 
R4, tab 29 at 3). 
Realignment of the Center Line 
12. In December of2007, before excavation work commenced, Mr. Hayes, 
provided verbal direction to realign the center line of the existing drainage ditch (R4, 
tab 18). 7 Rather than excavate the borrow ditch according to the excavation template 
included in the contract drawings, Mr. Hayes advised RLB to excavate through the center 
line of the same, existing drainage ditch, to 15 feet on each side of the center line of the 
ditch. {Tr. 2/240-41) This realignment shifted the center line of the ditch in a westerly 
direction, moving it closer to the center line of the levee. As the original specifications 
and plans provided that the contractor would use borrow material from the ditch to build 
the levee embankment, this change reduced the quantity of borrow material available to 
complete the levee. (Supp. R4, tab 66 at 13-16) The realignment order was not 
formally 
reduced to writing at that time and, in fact, was not formally addressed by the Corps until 
issuance of a unilateral modification three years later after RLB's claim was filed (R4, 
tab 14)8• 
6 Mr. Hayes was involved in a car accident in January 2008 and did not return to the 
project until 
March 2008. Upon his return he was detailed to assist in Corps 
emergency projects in other geographic locations until the end of September. 
(App. 2nd supp. R4, tab 49 at 29-31) 
7 It is uncertain from the record exactly why the Corps realigned the ditch. The reason 
for the realignment is not relevant for purposes of this appeal; it is undisputed 
Mr. Hayes gave the order during this time period. 
8 The Corps orally ordered the realignment in December 2007. RLB' s REA was filed 
29 September 2009 and converted into a claim on 17 November 2009 (R4, tabs 3, 
5). Modification No. P00002 was not issued until 8 December 2010 (R4, tab 14). 
7 

Deletion of the Drawings Borrow Template: CIN-001 
13. Shortly after the realignment order, Mr. Hayes realized that the template on 
the drawing cross sections did not match the typical of the excavation. As a result, he 
forwarded CIN-001 to Mr. Boyd for his signature on 3 December 2007. CIN-001 was a 
bilateral modification that deleted the borrow template shown on the cross-sections of the 
existing levee in drawings 22 through 26 and stated that the contract time and price 
would not be affected by the change. (App. 2nd supp. R4, tab 6) Having not heard from 
Mr. Boyd by late January, Mr. Hayes called him on 25 January 2008. Mr. Boyd stated 
that having begun excavation he would wait and see if any impacts result from the 
change before he would sign the modification. (App. 2nd supp. R4, tab 7) Mr. Eilts 
testified that the purpose ofCIN-001 was to correct mistakes in the drawings provided in 
the contract (tr. 2/263-65). He further testified that CIN-001 had nothing to do with the 
realignment of the ditch and the contractor would still be able to perform the required 
work because necessary information remained in the typical section drawings 
(tr. 2/265-66). In contrast, Mr. Boyd testified the impact of the realignment, when 
combined with this change, was: (1) loss of approximately half of dry dirt that was 
supposed to be excavated; (2) addition of considerably more wet dirt; (3) loss of 
processing area to dry the new, wetter dirt; and (4) overlap ofthe newly aligned 
excavation pit with the toe of the newly constructed levee, meaning the excavation pit 
would undercut where RLB was supposed to construct the new levee. (Tr. 11102-06) 
Summing up the impact he stated, "[T]he difference in this job and the change that was 
made in this job, is we were traded our dry dirt for that wetter dirt, and then asked to do it 
for no change. And it is an extreme difference." (Tr. 11112) 
Excavation 
14. RLB executed an agreement with a subcontractor, Weeks Marine, Inc., to 
perform the excavation work (supp. R4, tabs 20, 21 ). The subcontractor commenced 
excavation operations at Station 50 1 +00 as planned (findings 6, 11 ), using a long boom, 
large bucket dragline (88-B) on 5 February 2008 (supp. R4, tab 22, Daily Log 2/5/08). 
The same day, RLB also began the direct placement operation, placing excavated borrow 
material on the levee (supp. R4, tab 19, Contractor Quality Control Report (QCR) 
No. 132, Block 3, "Work performed today"). 
15. On 12 June 2008 a meeting was held between RLB, Mr. Boyd, and the Corps' 
Mr. Eilts and Mr. Hayes to discuss RLB's concerns about the realignment of the 
centerline of the ditch and the effects that realignment was having on the contract work. 
RLB stated that there were design conflicts and cost issues that needed to be resolved 
because the realignment basically took away the area between the ditch and the levee that 
RLB had intended to use for drying the excavated wet soil. RLB further stated that this, 
in tum, required the wet material to be hauled two or three miles away from where it had 
8 

been excavated, dried and hauled back again to where it had come from to be placed into 
the levee. (R4, tab 18) 
16. RLB also asked for specific direction on the area where it was currently 
working constructing the levee and excavating the ditch from Sta. 522+00 to Sta. 
545+00, as this section, as well as others, had not yet been addressed by the Corps. The 
Corps advised RLB that, from Sta. 522+00 to Sta. 545+00 the levee should be 
constructed to full template, steepen the side slope of the ditch, and leave a 5' berm 
between the top of the ditch excavation and the toe of the levee. However, this direction 
was only provided for Sta. 522+00 to Sta. 545+00. Mr. Boyd was told the Corps 
personnel would have to review whether to provide the same direction on the entire 
levee from Sta. 501+00 to Sta. 596+00 where the levee parallels the ditch and 
directed RLB to not proceed further until the Corps had time to review the impacts of 
the realignment. (R4, tab 18) The discussion then shifted to Mr. Boyd's request for 
direction concerning excavation ofthe ditch between Sta. 596+00 and Sta. 741+00. The 
Corps directed RLB not to excavate the ditch between these stations until it could 
evaluate the impact of the realignment of the ditch on the levee. Mr. Boyd stated 
excavation of this area was critical because of the need to dry the borrow material, 
which requires excavation and placing of this material on the berm so it could begin to 
dry. (!d.) 
17. On 20 June 2008, Mr. Boyd met with Mr. Hayes and Mr. Chaisson in an 
attempt to receive direction on how to proceed on the project between Sta. 596+00 and 
Sta. 7 41 +00 as discussed in the 12 June 2008 meeting. Mr. Hayes stated he had forgotten 
about getting back to Mr. Boyd with information on the issue. Mr. Boyd offered a 
non-monetary solution to the realignment issue based upon relaxing some of the 
restriction in the manner of performance of the contract. Mr. Hayes requested Mr. Boyd 
submit the idea as a request for information. (R4, tab 18) As requested, Mr. Boyd 
forwarded a letter to Mr. Hayes dated 23 June 2008, referencing the 20 June meeting 
stating: 
By realigning the 
ditch, the area between the levee toe and 
existing top of bank has been reduced substantially. This area 
is now at a width too small to allow adequate placement of 
the wet material from within the ditch for processing. To 
resolve this issue we request that the 2000' working limit of 
levee construction be waived and that we be allowed to place 
materials on the levee under construction at their insitu 
moisture content. This will allow borrow material to be 
processed on the levee section under construction. By 
9 

allowing the levee under construction to be used as a 
processing area, it will replace the area taken from us by the 
realignment of the ditch. 
(Supp. R4, tab 52) 
18. Not having }ward from Mr. Hayes, Mr. Boyd followed up on his letter by 
calling Mr. Hayes on 3 July and then again on 10 July stating he needed to know where 
to construct the ditch from Sta. 596+00 to Sta.741 +00. Mr. Hayes stated that he 
would call the next day and let Mr. Boyd know where the ditch limits would be located. 
As of 18 July 2008, there was still no response from Mr. Hayes. (R4, tab 18) 
19. On 18 July 2008, RLB sent a letter to Mr. Eilts summarizing the meetings and 
phone calls attempting to obtain guidance from the Corps on how to proceed on the 
project and requested guidance on specific outstanding issues: 
At this time we are working in other areas between stations 
501+00 and 596+00 to keep the ditch excavation 
progressing. We are proceeding with the same direction as 
we were given from station 522+00 to 545+00. It is our 
understanding that you concur with this progression . 
. . . At this time we have not received any direction on how to 
proceed from station 596+00 to 741+00. This lack of 
direction is delaying the progress of the project ... 
... To date I have not received a call from Mr. Hayes nor 
have we received any direction for [sic] the Corps on where 
they want the limits of the ditch. We must have this 
information to understand the impacts that have been caused 
by the realignment of the ditch. 
In closing Mr. Boyd requested: 
[T]hat you develop a change order that reflects these 
changes, including what dimensions the ditch is to be 
excavated to from station 501 +00 to 596+00 and from 
station 596+00 to 741+00. The quantities ofmaterial that 
will be excavated will then need to be reviewed. Please 
evaluate whether this change will affect the quantity of 
10 

(R4, tab 19) 
material available for levee construction increasing or 
decreasing this construction. Once complete, we request you 
issue this in the form of a request for proposal so we can then 
evaluate the impact to our work caused by this change. Be 
advised that until RLB has an understanding of what work is 
to be achieved under the contract we cannot address the RFP 
issued on the project for additional work removing certain 
pipelines and constructing the levee in areas where these 
pipelines exist outside our contract. 
20. The Corps responded by letter on 7 August 2008, advising RLB that, for the 
excavation between Sta. 596+00 and Sta. 738+00, it should use the chart on Drawing 
No. 8 of27 to establish the west toe of the borrow ditch and, if necessary, that the 
bottom width of the borrow ditch could vary to establish the west toe of the borrow ditch. 
(R4, tab 20) 
Reduction in Height of Levee and Overbuilt Direction 
21. By letter of 15 August 2008, RLB acknowledged it had received the direction 
it needed on the excavation of the realigned ditch but informed the Corps that, under the 
new design criteria, there would not be sufficient soil to construct the levee desired by the 
Corps. RLB offered to price a proposal for completing the levee with borrow material to 
be obtained from an offsite source. (R4, tab 21) 
22. On September 19, 2008, RLB sent a letter to the ACO stating, "[T]his is to 
alert you about concerns regarding our ability to complete the construction of the levee 
on this Project with the remaining materials available in the borrow area furnished by the 
Government." That the realignment of the borrow ditch "did impact our performance, 
not only as a result of the reduction of material, but also reducing our drying area 
requiring us to haul material further down site for drying." RLB also asserted the 
realignment of the borrow ditch had reduced the amount of borrow material available to 
build the levee. (Supp. R4, tab 13) 
23. The Corps did not accept Mr. Boyd's 15 August 2008 suggestion to obtain 
additional borrow material offsite but instead, on 15 April 2009, directed RLB to 
complete the ditch excavation and raise the levee to a minimum elevation of +8', rather 
than the originally designed elevation of+ 12.5'. The Corps also directed RLB to remove 
the embankment on the north end of the levee that had been overbuilt on the side slopes 
and to use that material on the lower end of the levee to bring the entire levee up to the 
minimum height of +8'. (R4, tab 22) Mr. Boyd testified that the directive forced him to 
change his plan of operation. Rather than using the intentional overbuild on the newly 
11 

constructed levee's side slopes for the final lifts to create the levee crown, RLB was 
forced to pick the extra dirt up and haul it several miles down range for utilization 
elsewhere in the levee. This resulted in excess labor, equipment usage, and a delay in 
time. (Tr. 11115-19) 
Final Government "As-Built" Survey 
24. The embankment work was completed and equipment demobilized by 30 July 
2009 (R4, tab 23). The last pay estimate indicates RLB was compensated a total of 
$3,037,450.00 for its work. This figure includes $1,234,800.00 for placement of 137,200 
CY of "Embankment, Compacted Fill" under CLIN 0004 (R4, tab 24 at 6, 8, 9). On 
5 April 2010, as called for under the 
contract, the government completed excavation and 
fill as-built surveys which determined that final quantities excavated and placed by RLB 
were 234,501 CYs 
and 140,410 CYs, respectively (R4, tabs 26, 27). However, the 
survey showed RLB had only placed 116,820 CY s that were eligible pay quantities, and, 
due to the overpayment, the government advised RLB that it would reduce payment 
accordingly in the amount of$183,420.00 (R4, tab 25).9 Mr. Boyd testified, at great 
length and detail, concerning numerous substantial errors in the survey that served as the 
basis for the government's conclusions (tr. 1129-137). Mr. Boyd also testified no one 
knows with certainty how much dirt was placed. We are persuaded by Mr. Boyd's 
testimony and find that the government's as-built survey is so inaccurate that it is not a 
useful representation of how many total CY s were placed or where they were placed by 
RLB. 
Request for Equitable Adjustment (REA) 
25. RLB filed an REA with the government on 29 September 2009 in the amount 
of$2,864,447 for additional costs it claimed it incurred due to the realignment of the 
drainage ditch (R4, tab 5). The request included a detailed report issued by RLB 's 
consultant, Richard J. Roy, dated 28 August 2009 (R4, tab 4). RLB subsequently 
submitted a certification of its request on 17 November 2009 (R4, tab 6). The REA 
asserted that the realignment of the centerline of the ditch seriously impacted the 
contractor's work, resulting in increased costs and time of performance in three ways. 
26. First, that the realignment forced it to excavate soil that was much wetter than 
originally planned, resulting in increased time and costs for processing and placement, 
explaining: 
In its original location the material to be excavated was to 
come from both banks of the ditch as well as a minor amount 
9 There is no evidence in the record the government ever took actions to recoup the 
asserted overpayment of$183,420.00. 
12 

from the submerged portions of the ditch. The composition 
of this fill would have contained a large proportion of the 
drier embankment soil. After the ditch was realigned by the 
COE, much less embankment soil was available from the 
east bank of the ditch. The only fill to be excavated came 
from a smaller than original amount of the west bank fill but 
predominately from fill material submerged deeper in the 
center of the ditch. This material was much wetter than the 
material originally designed to be used in the levee 
construction . 
. . . Due to the ditch realignment, the material never did meet 
the specified requirement [in the contract]. 
(R4, tab 4 at 5, 6) 
27. Second, RLB asserts that the wetter soil required to be excavated after the 
ditch realignment yielded significantly fewer placed CY s of embankment as compared to 
the yield that would have been realized had it been allowed to excavate the drier material 
as originally planned. In other words, the pit-to fill ratio was increased. Thus, RLB 
claims it had to perform much more work than originally anticipated, excavation and 
drying, to achieve each placed CY of embankment. (R4, tab 4 at 5, 6) 
28. Third, RLB also asserted that its work was further impacted by the fact that 
the ditch realignment reduced available area between the levee and ditch that it had 
intended to use to dry the soil prior to placement in the levee. RLB asserts that the 
realignment of the centerline of the ditch effectively removed required area between the 
ditch and the levee that it had intended to use to dry the material excavated from the 
ditch. The wet soil therefore had to be trucked to a remote location and dried, then 
trucked back to the original location. (R4, tab 4 at 5, 6) 
Claim Methodology 
29. Mr. Roy's original approach to the claim was to isolate the cost of completing 
the work and then to apply a "measured mile" 
approach, comparing the as-bid plan to the 
specific areas impacted by the change. However, he was unable to identify a period 
when the work was not impacted so he found it impossible to apply the measured mile 
approach. (R4, tab 4 at 6) Instead he tried to isolate the actual costs of performing the 
excavation and compacted fill work, stating, "The proper measure of damages is the 
'reasonable value' of the work." (!d. at 6) His analysis broke those costs into six 
categories: (1) equipment; (2) labor; (3) subcontract cost; (4) travel cost-hotel only; (5) 
13 

engineering and testing; and, (6) per diem cost for labor. From these costs he deducted 
equipment and labor hours he referred to as "other than embankment and compacted fill" 
work. Those cost categories included: truck 
wash; clearing and grubbing; gas line, 60" 
culverts; surfacing; and CIN-006 Levee 
Construction, and were compensated by 
reimbursement under separate CLINs or by modification and are not in dispute. He 
arrived at a total cost of excavation of $3,094,193 .16. Applying his estimation of home 
office overhead, profit and bond cost, he calculated a total "value" of the excavation work 
of$4,236,259.86. Subtracting the amounts already paid, the total claim amounted to 
$2,864,447.01. (App. Claim, vol. 3, tab 19) 
Defense Contract Audit Agency (DCAA) Audit of REA 
30. The government requested DCAA conduct an audit ofRLB's REA, 
examining its claimed direct labor rates, home office overhead and other portions of 
direct costs (field office overhead) portions of the REA on 19 January 2010. 
The government's request did not include audit of the claimed profit and bond rates. 
DCAA's findings were provided to the government on 10 June 2010 in DCAA Audit 
No. 3521-2010R17200001 (Audit). (App. supp. R4, tab 3) DCAA found that RLB's 
REA provided adequate cost and pricing data in support of its proposed labor rates and 
other direct costs (ODCs). 10 However, the claimed overhead and ODCs were found not 
to be prepared in accordance with appropriate provisions ofF AR 31 and DF ARS but 
such noncompliance was considered to have a limited impact on the proposal as a whole. 
Because of the limited impact, DCAA found that the proposal served as an acceptable 
basis for negotiation of a fair and reasonable price. (/d. at 2) The audit's recommended 
amount was $4,078,184 as the total incurred cost ofthe excavation work (id. at 9).11 We 
find that RLB incurred the direct labor and ODCs claimed for all excavation work and 
they are allocable to this 
contract. 
31. The Audit did question $318,999 of the total $421,060 claimed as indirect 
expenses based upon unallowable costs included within the total. 12 Their findings were 
10 The Audit did not question that RLB had incurred the claimed direct labor costs (app. 
supp. R4, tab 3 at 2). Their finding was based upon an examination of a sample of 
83% of the total payroll found in RLB's company Quick Books payroll records 
between 2 October 2007 and 30 July 2009 (id. at 4, 5). Likewise, the Audit did 
not question any of the claimed incurred ODCs consisting of employee hotel bills, 
engineering and testing costs and per diem paid to employees based upon an 
examination of invoices and per diem paid to travelling employees (id. at 9, 10). 
11 This total includes the claimed amount of 8% profit and 2.50% bond rates which were 
not examined by the Audit. 
12 Unallowable expenses included: meals and entertainment per FAR 31.205-14; 
donations, interest expenses, and finance charges per FAR 31.205-8; and 
contributions or donations perF AR 31.205-20 (app. supp. R4, tab 3 at 5). 
14 

based upon an examination of actual cost found in RLB' s "Schedule of Operating 
Expense for the Eleven Months Ended [sic] November 30, 2008." (App. supp. R4, tab 3 
at 5, 6) In addition, the claimed home office overhead rate was questioned based upon 
finding unallowable costs within the indirect cost pool. The REA included a 26.41% 
overhead rate based upon actual costs incurred between 1 January 2008 and 
30 November 2008. The auditors adjusted the indirect cost pool for the identified 
unallowable costs and calculated a new rate of 21.30%. (!d. at 6, 7) 
Government's Response to Claim 
32. On 17 June 2010 the government informed RLB that its request for an 
equitable adjustment did have some merit but that the government disagreed with the 
contractor's total cost approach to pricing the change. The CO requested a 
meeting for 
further discussions. (R4, tab 28) A meeting between RLB and the government took 
place on 13 July 2010 with the parties discussing their positions. The meeting ended with 
the parties in disagreement over the appropriateness of using the total cost method to 
price the change and with the government advising it would consider the matters 
discussed and would get back with the contractor. (R4, tab 29) 
33. Subsequently, based upon the government's estimate, the governm:ent 
determined that the realignment of the ditch impacted the contractor in the total amount 
of$447,354.40 (exclusive ofCDA interest). This consisted of entitlement to 
$290,367.00 for an increase 
in the "Pit-to-Fill" ratio; a credit of$462.60 for deleted 
work; and entitlement to $157,350.00 for the government direction to remove overbuild 
on the side slopes of the upper end of the levee and haul and place it toward the lower 
end. (R4, tab 30) The amount for the increased pit-to-fill ratio was based upon estimates 
of amounts excavated as shown on the cross-sections of the final as-built survey and the 
original bid estimate pit-to-fill ratio. 13 A 7.5% settlement factor was subtracted from this 
total to arrive at 150,940 placed (id. at 6). Relying upon the government's determination 
of entitlement, on 8 December 20 1 0 the government issued a unilateral modification 
No. P00002 in the amount of$447,254.40, plus $5,134.23 in interest, to compensate the 
contractor for the cost impacts associated with the realignment of the ditch ordered in 
December of2007 (R4, tab 31). RLB was informed ofthis determination and, in 
response, requested a CO's final decision (COFD) on 12 August 2010 (R4, tab 3). 
34. The COFD was issued on 15 March 2011 (R4, tab 2). The COFD conceded 
entitlement acknowledging that the Corps' actions in realigning the drainage ditch did 
impact the contractor's cost of performance but disagreed on the nature and extent of 
those impacts. In addition, the government disagreed with RLB' s use of a total cost 
13 The final as-built survey indicated RLB excavated 234,501 CYs. Using the pit-to-fill 
ratio used in the government estimates for the bid process ( 1.28 to 1 ), the 
government calculated RLB would have placed 183,203 CYs. 
15 

methodology to price the equitable adjustment due (id. at 9). The COFD found RLB's 
claim for $2,864,447.01 to have partial merit in the amount of$447,254.40, the amount 
previously placed on the contract by Modification No. P00002 (id. at 17). 
35. RLB appealed the COFD to 
the Board on 2 June 2011 and the appeal was 
docketed as ASBCA No. 57638. The government conceded entitlement just prior to the 
scheduled hearing and the parties stipulated that the hearing would only address quantum 
(tr. 116). 
Appellant's Expert Witness Analysis: The Mayeux Report 
36. Mr. Michael Mayeux was retained by RLB to conduct an expert analysis of 
the claim. He was qualified and testified at trial as an expert witness in levee 
construction cost estimation. He prepared two independent estimates: (1) the costs as 
bid, and (2) the costs as changed. In addition, he reviewed the accuracy of the 
government's estimate. (App. 2nd supp. R4, tab 23 at 4) 
(1) As-Bid Estimate vs. Realignment 
37. Mr. Mayeux found that the original specifications and plans were not unusual 
for those used in levee construction contracts, with the specification being the standard 
employed since 2005 (app. 2nd supp. R4, tab 23 at 5). However, he found that the work 
sequence was more complicated than that usually found in similar contracts due to 
weather and special requirements that made scheduling more difficult. 14 His analysis 
took a detailed approach to planning the work but he noted his method was not identical 
to those used by the Corps to build the government estimate or by RLB to prepare its bid. 
He explained this based upon the fact it is not unusual for different contractors, when 
bidding on a complicated contract such as this one, to take different approaches to 
performing the work due to their differing equipment, labor, skill levels, etc. His as-bid 
estimate for the embankment work was $1,561,887 or $8.06/CY and, as changed by the 
realignment, $2,924,221. His report noted that bids vary due to market conditions so he 
did not find RLB's bid rate of$9.00 unreasonable. (App. 2nd supp. R4, tab 23 at 6-8) 
(2) Review of the Independent Government Estimate 
14 The specific impacts on scheduling followed from requirements that no more than 2,500 
LF of borrow could be dewatered at one time, only 4,000 LF of borrow could be 
under construction at one time and this was reduced to 2,000 LF during hurricane 
season, material with a moisture content above 10% optimum could not be placed 
on a final levee, and the entire borrow area between Sta. 501+00 and Sta. 738+00 
be depleted and material used in levee construction but the 
contractor was only paid 
for material placed on the embankment (app. 2nd supp. R4, tab 23 at 5, 6). 
16 

38. Mr. Mayeux's report identified what he considered flaws in the government's 
estimate. For example, he found the government made several faulty assumptions. His 
summary stated: 
In short, it appears to me that the estimator put very little 
thought into how much material was in different reaches of 
the borrow area and what was actually required to place the 
material from each reach. Instead they estimated the project 
as if they [sic] whole project was the worst case scenario, 
then slowed down the haul trucks to assure the estimate was 
high enough to justify awarding a fairly high bid. The 
government estimate does not include profit and an additional 
25% is allowed for profit. This would allow for an award of 
$23.375 perCY for the uncompacted fill. 
(App. 2nd supp. R4, tab 23 at 9) 
Government's Expert Exceptions to RLB Damages: The Strickler Report 
39. Mr. George Strickler was retained by the government as an expert to analyze 
and prepare an expert report on RLB's appeal (supp. R4, tab 66).15 Mr. Strickler's report 
(Strickler's Report) primarily addresses the effects the ditch realignment had on Rl.B's 
work and an analysis of RLB' s damage claim, with his opinion on the amount of 
damages that RLB may have suffered as a result of the realignment of the borrow ditch. 
(1) Analysis ofRLB's Claim Issues 
40. Strickler's Report addressed the issues alleged in RLB's claim. First, 
Mr. Strickler addressed the effect of realignment on the available work area for 
stockpiling and processing borrow material and concluded that the shifting of the ditch 
"did cause a general reduction in the area available along the easterly bank of the ditch." 
However, he concluded that, based on his review, this shift, by itself, would not have 
impacted RLB's plan of operations to the extent asserted by RLB. (Supp. R4, tab 66 at 
13-14) Second, he addressed the effect of realignment on the availability and wetness of 
borrow material. He concluded that the realignment of the ditch did result in a net 
reduction of borrow material but his calculations revealed there was not a significant 
15 His conclusions were based upon his review of the documents included within the Rule 
4 file, his discussions with Corps personnel and depositions transcripts for 
Mr. Boyd, Ms. Boyd, Mr. Sandhop and Mr. Sanders (supp. R4, tab 66 at 3-4). 
Mr. Strickler was qualified as an expert witness and direct testimony was 
presented through his expert report and RLB chose not to cross-examine him at 
the hearing (tr. 3/122). 
17 

reduction in volume. (Supp. R4, tab 66 at 15) Additionally, Mr. Strickler examined 
RLB' s assertions that the realignment of the borrow ditch caused RLB to have to 
excavate wetter material, which in tum reduced the "in place" embankment yield of 
material from each CY of material excavated from the ditch. His conclusion was that 
because of the realignment, RLB encountered an increased moisture content of the 
borrow material to be excavated, i.e., a higher "pit to fill" ratio than expected. However, 
he noted there is no way to know how much embankment RLB placed, but cannot be 
paid for, because the contractor failed to install settlement plates, which are the only 
allowable method of measuring settlement. (Supp. R4, tab 66 at 16) Despite this 
conclusion, he went on to conclude the CO's final decision included 32,263 cubic yards 
of material due to an increase in the pit-to-fill ratio, "which would more than account for 
this increase" (id. at 17 -18). Third, Mr. Strickler addressed soil placed by RLB that was 
not measured. He concluded that RLB had placed some embankment quantities that had 
not been measured because they were not placed directly within the levee boundaries, and 
thus not paid for, but noted such quantities were also included in the CO's final decision 
as part of the additional32,263 cubic yards of embankment placed. 16 (Supp. R4, tab 66 
at 18) Finally, Mr. Strickler addressed the Corps' directive to RLB in April2009 to use 
the "overbuild" material on the side slopes of the northerly reach of the levee, haul it to 
the southerly reach of the levee, and place it to bring up the levee to a +8 ft. elevation. 
Mr. Strickler noted that this issue was addressed in the CO's final decision and that the 
amounts included therein "more than adequately" compensated RLB for its additional 
costs in carrying out that directive. (Supp. R4, tab 66 at 19) 
(2) RLB 's Incurred Costs for Embankment Work 
41. RLB's initial claim, on 12 August 2010, asserted a total cost ofthe 
embankment work of$3,094,193.16, consisting ofthe following cost elements: (1) direct 
equipment; (2) direct labor; (3) direct subcontractor cost; ( 4) direct travel cost-hotel only; 
(5) direct engineering and testing; and (6) direct per diem cost for labor (R4, tab 3). With 
the addition of home office overhead, profit and bond cost, the total cost of excavation 
work came to $4,236,259.86. Subtracting the amount already paid for the work, the total 
amount claimed was $2,864,447.01. (App. Claim, tab 22) Mr. Strickler's analysis of 
RLB's damages can be separated into three findings. First, he performed a detailed 
analysis ofRLB's claim noting any discrepancies in Mr. Roy's methodology. Second, he 
identified items that should have been deducted from the claimed amount. Finally, 
Mr. Strickler analyzed RLB's bid noting costs that should have been included within 
RLB 's bid but were not and, therefore, should not be compensated now as part of its 
claim. After analyzing RLB's claim, and identifying its deficiencies, Mr. Strickler 
16 Mr. Strickler calculated that RLB had placed approximately 5,000-5,400 cubic 
yards of material at the levee ramps and repair sections which had not been 
measured. 
18 

prepared his own detailed damage analysis, Reconciliation of Damages, which is found at 
exhibit 3 of his report (supp. R4, tab 66, ex. 3). Adjusting the individual claimed cost 
elements for the defects in RLB' s claim, he estimated a total incurred cost, including 
markups, of$2,657,315.95 for the embankment work (id. at 2, line item 23). Applying 
the estimated total incurred cost, Mr. Strickler then calculated a unit rate perCY 
representing the difference in rate due to "realignment and other issues" of$3.28. He 
then multiplied the adjusted rate ($3 .28) by the CY s placed in accordance with the COFD 
(149,083 CY) to arrive at the total additional cost for CYs 
placed, $489,389.27. When 
added to his calculations for other direct placement payments, he arrived at a total 
possible compensation of$753,686.27. (!d., ex. 3 at 1) 
Analysis of the Parties' Positions on Estimated Individual Cost Elements 
42. During his testimony, Mr. Roy revealed that he had revised RLB's total claim 
downward to $2,407,775.74 based upon his review ofthe Strickler Report (tr. 2/60-75). 
Further adjustments were also made in RLB' s claim in its post-hearing reply brief ( app. 
reply br. at 24-26). 
(1) Direct Equipment Costs 
43. The following summarizes Mr. Strickler's estimate of equipment cost by 
individual cost element, as stated in his report, and RLB' s adjustments to its claim in 
response: 
19 

Strickler Report RLB Revised Claim 
Total hours of equipment $886,737.77 $1,244,840.21 
Deduct for non-bid items ($49,501.39) 0 
(GPS, Water Trucks, Pumps, Grader) 
Deduct for distributed equipment ($25,914.46) (7,126.48) 
(60°/o Levee/40o/o Other) 
Add additional grader hours and operator 17 $27,827.48 $27,827.48 
Add rental equipment $230,908.45 $230,908.45 
Add for weather included in bid 18 $78,891.82 $78,891.82 
Net Equipment Cost $1,148,949.67 $1,575,321.48 
(Supp. R4, tab 66, ex. 3; app. reply br. at 24) The parties only dispute three equipment 
cost elements, the total cost of equipment hours, the deduction for non-bid items and the 
deduction for non-embankment equipment cost. We will address each in tum. 
(a) Total Hours of Equipment Used for Excavation and Fill Work Only 
44. Although the labor costs were based on actual rates paid to the employees, 
Mr. Roy calculated equipment costs based on Corps published rates found in the 
Construction Equipment Ownership and Operating Expense Schedule, U.S. Army Corps 
ofEngineers, Pub. No. EP 1110-1-8, Region III (Corps 
Manual) (supp. R4, tab 66, ex. 8). 
The equipment costs associated with the embankment work were derived by reviewing 
the daily reports identifying the pieces of equipment used for that purpose (app. Claim, 
17 Although Mr. Strickler reduced the equipment hours due to the fact he could not find 
specific dollars within the bid for a grader: 50% of the grader cost, $27,827.48, 
was added back to the total in recognition of its use on the haul road effort at 
(778.5/2)*(56.82+14.67) (supp. R4, tab 66, ex. 3 at 2, line item 4). RLB agrees with 
this amount and also adds this amount to its claimed equipment costs (app. reply 
br. at 24, line item 4). 
18 Mr. Strickler included a credit for normal weather included in the bid based upon a 
straight proration of days of normal weather ( 44%) to unusually severe weather 
(56%) (supp. R4, tab 66 at ex. 3, note 6). RLB does not dispute this amount and 
adds the same amount in its revised claim (app. reply br. at 24). 
20 

tab 4). He also used the daily reports to establish the hours that these pieces of equipment 
actually worked on the embankment work and then determined which pieces of identified 
equipment were owned or leased by RLB (id. ). An average hourly rate was then 
established for each piece of owned equipment based upon the rates established in the 
Corps Manual. Using this rate, he determined that the direct equipment cost was 
$1,709,104.52. (App. Claim, tab 11) 
45. Mr. Strickler noted that the rates, as calculated by the Corps Manual, include 
both ownership cost elements and operating cost elements. The ownership portion of the 
rate includes an allowance for the facilities capital cost of money (FCCM) and 
depreciation (DEPR). The operating cost elements include: fuel; filters; oil; grease 
(FOG) to include servicing; 
repairs to include maintenance and major overhauls; tire 
wear (replacement); and tire repair (supp. R4, tab 66, ex. 8). Mr. Strickler found any 
costs associated with these elements, either directly claimed or claimed as a function of 
overhead, were duplicative. Finally, he also noted any efforts on the part of the 
equipment operators to provide basic maintenance on their vehicles should also be 
deducted as duplicative based on the Corps equipment rates. (Supp. R4, tab 66) 
Mr. Strickler calculated the new cost of equipment for the embankment work, as adjusted 
by his findings as $886,737.77 (supp. R4, tab 66, ex. 3). 
46. Mr. Roy stated during his testimony that upon reviewing the Strickler Report 
he realized that RLB 's initially claimed direct equipment costs were included in 
depreciation costs, which was duplicative due to the fact that RLB accounted for 
equipment depreciation in its home office overhead (tr. 11291-93). Mr. Roy was unaware 
of that fact when the initial claim was presented and, therefore, revised the claim to 
correct that calculation error (tr. 1156-57, 60-62). The backup data created by Mr. Roy to 
support his calculation is located at Exhibit A-1, which was introduced and admitted at 
the hearing. Mr. Roy's final claim adjustment also includes equipment standby costs 
using rates from the Corps Manual. As explained by Mr. Roy at the hearing, "these are 
the revisions that were based on what I learned from Mr. Strickler's report" (tr. 2/62). 
After these adjustments Mr. Roy's final value for the direct equipment cost is 
$1,296,846.22. 19 
4 7. The government, in its post-hearing brief, noted that the standby equipment 
cost in Exhibit A-1 was still inaccurate because it did not account for depreciation costs, 
which is duplicative as in the case of equipment operating cost (gov't br. at 69). 
Recognizing this error, RLB chose to concede the claimed standby cost of $52,026.01 in 
its entirety rather than attempt to calculate the exact amount of duplicative costs. This 
reduced the total direct equipment cost from $1,296,846.22 to $1,244,820.21. (App. 
19 The total is a $412,258.30 reduction from the original claimed amount of 
$1,709,104.52 but does not include rental equipment cost which is broken out as a 
separate line item (ex. A-4). 
21 

reply hr. at 24 n.l) We find RLB's incurred total cost for equipment hours for 
embankment work was $1,244,820.21. 
(b) Deduction for Non-Bid Items (GPS, Water Trucks, Pumps, Grader) 
48. After calculating the total cost for the equipment hours, Mr. Strickler deducted 
some items from that total and added others. He deducted $49,501.39 for items that he 
was unable to find within RLB's bid, such as GPS, water trucks, pumps, and a grader. 
These 
were items Mr. Strickler believed were necessary to complete this job but he could 
not find evidence they were included in RLB' s bid and, therefore, RLB should not be 
reimbursed for these items. (Supp. R4, tab 66, ex. 3 at 1, note 2) 
49. RLB does not deduct for these items because Mr. Boyd testified they were 
factored into the bid even though not separately broken out (app. br. at 24). Specifically 
addressing the pumps, Mr. Boyd testified he did not breakout a separate line item amount 
for pumps because there was a pump station on-site to dewater the ditch (tr. 1164). 
Concerning the water truck, Mr. Boyd testified he also factored this into his bid but did 
not separately break the cost out explaining, that given the purpose of a water truck, he 
did not foresee extensive use of one on this project, i.e., the major challenge on this 
project was to reduce the soil moisture not increase it (tr. 1/64-66). Likewise he also 
testified the cost of a grader was also included in the bid but not separately itemized and 
that there was a separate itemization of the cost of bulldozers that could be used as 
graders if necessary (tr. 11198-99). We find Mr. Boyd's testimony persuasive and find 
that the items identified by Mr. Strickler, and subsequently deducted from his 
calculations, were included within RLB's bid and should not be deducted from total 
equipment costs. 
(c) Deduction for Distributed Equipment (60% Levee/40% Other) 
50. Mr. Strickler deducted $25,914.46 as the non-levee use of the equipment 
applying a 60% levee work to 40% non-levee work allocation he derived from the bid 
documents (supp. R4, tab 66, ex. 3 at 1, note 3). In contrast, Mr. Roy testified that he 
determined the embankment equipment cost was 79% of the total equipment cost for the 
project (tr. 11277-78). We find Mr. Roy's calculations more persuasive and find the 
proper allocation of equipment costs is 79/21% ratio for a total deduction of $7, 126.48. 
51. We find that the total incurred net equipment cost for embankment work was 
$1,575,321.48. 
(2) Direct Labor Costs 
52. Below is a comparison ofMr. Strickler's and RLB's revised direct labor 
calculations: 
22 

Strickler Report RLB Revised Claim 
Labor Costs for embankment work $501,803.22 $548,933.07 
Deduct for Mechanic ($53,010.14) ($53,0 10.14) 20 
Deduct for distributed labor ($77 ,529 .28) ($52,332.26) 
Add for 6560 - Payroll Expenses Other $35,543.58 $35,543.58 
Deduct for daily servicing of equipment ($5,838.66) ($5,838.66) 
Deduct for labor to run pumps ($1' 181.90) ($1,181.90) 
Net Labor Cost $399,786.82 $472,113.69 
(Supp. R4, tab 66, ex. 3; app. reply br. at 24) We find that the parties only dispute two 
direct labor cost elements, labor cost for excavation fill work and deduction for 
non-embankment labor cost work and address each in tum. 
(a) Labor Cost for Embankment Work 
53. RLB's claim relied upon the daily reports to determine the number of labor 
hours each piece of equipment was operated on the job site and RLB's certified payroll 
records to determine the total cost direct labor for the entire project (app. Claim, tab 13). 
Then the costs for hours associated with other work were subtracted from the total cost to 
arrive at the labor cost to perform the embankment work of$641,087.53 (id., tab 14). 
Other work hours included truck wash, clearing and grubbing, gas line, 60" culverts, 
surfacing and the CIN-006 change order costs (id., tab 12). Based upon his review, 
Mr. Strickler determined there were discrepancies between the QCRs and the payroll 
summary in RLB's claim for manpower. He noted there was not enough information 
included in the daily reports to determine the hourly effort for laborers on the job site, 
there were unspecified hours where it was impossible to determine whether the employee 
was a laborer or operator, and there was a significant mixing of hours within the operator 
and laborer line items on the QCRs. In addition, he noted discrepancies between the 
operator hours and equipment hours on the QCRs and between RLB 's job cost report and 
the payroll. (Supp. R4, tab 66 at 20-21) There was also not enough information for 
Mr. Strickler to identify or quantify any mobilization and demobilization costs that 
20 Mr. Roy included a deduction for a mechanic in his labor cost calculations in this 
amount. Therefore, this deduction appears to be a duplication already accounted 
for in the total (see ex. A-3). 
23 

should be deducted (supp. R4, tab 66, ex. 3 at 2, note 8). Despite the uncertainties in the 
data, Mr. Strickler estimated $501,803.22 in labor costs for excavation and fill work. 
Based upon its review of the Strickler Report, RLB reduced its claimed labor cost from 
$641,087.53 to $548,933.07 (ex. A-4). This revised number includes deductions for the 
mechanic cost of$53,010.14, identified by Mr. Strickler, and an adjustment for the 
salaried labor of$19,347.16 (ex. A-3). We find RLB's calculations more persuasive and 
find the Labor Cost for the embankment work to be $548,933.07. 
(b) Deduct for Distributed Labor (60% Levee/40% Other) 
54. The ratio applied for this deduction, non-embankment work, is the same as 
what Mr. Strickler applied above for the equipment costs for a deduction of$77,529.28 
(supp. R4, tab 66 at 2, note 10). In contrast, RLB applied a ratio of73% Levee to 27% 
based upon the total number of bid embankment labor hours with the total number of 
labor hours for the project (tr. 11278). We find Mr. Roy's calculations more persuasive 
and find the proper allocation of labor costs is 73/27% ratio and the total amount of 
deduction to be $52,332.26. 
55. We find the total net incurred direct labor cost for embankment work to be 
$472,113.69. 
(3) Subcontractor, Prorated Hotel Costs for Traveling Laborers and Prorated Per 
Diem for Traveling Laborers 
56. The parties do not dispute these three cost elements: $300,413.40 
representing the cost to RLB for its subcontractor, Weeks Marine, who performed most 
of the excavation work;21 prorated hotel costs of96,763.06; 22 and, prorated per diem of 
$67,842.54. 23 
21 (Supp. R4, tab 66, ex. 3 at 2 note 15; app. reply br. at 24, item 15) 
22 (Supp. R4, tab 66, ex. 3 at 3 note 16; app. reply br. at 24, item 16) 
23 Mr. Strickler's review of the job cost report disclosed that RLB claimed all per diem 
costs on the job through 6 July 2009 in the amount of $130,466.43 despite the 
fact RLB's bid included per diem as a function of the hourly wage rate of 
employees and was therefore distributed among all items of work within the 
contract. Therefore, he found that some portion of the per diem costs should be 
distributed among the other than levee tasks as was done in the RLB bid 
calculation. As a result, he calculated a prorated portion of these costs that would 
be associated with levee work with a percentage of 52% levee work to 48% 
non-levee work for a total amount of$67,842.54. RLB's revised claim retained 
the original amount of $130,466.43 but its post-hearing brief reduced the amount 
to $67,842.54. Line item 18 ofRLB's calculations indicates a proration 
24 

(4) Testing and Engineering 
57. RLB claimed $127,038.48 for the test and engineering costs associated with 
excavation and fill work invoiced by consultants G&W Engineers, Inc., (app. Claim, 
tab 17). This amount was reviewed by the DCAA audit and not questioned (app. supp. 
R4, tab 3 at 4). Subsequently, Mr. Roy reviewed the additional cost records and 
concluded that the claim for these items should be increased to $162,322.80 because the 
original claim was completed before the entire project was completed and therefore did 
not include a complete accounting of engineering and testing costs. (tr. 2/70). However, 
there is no documentation within the record to substantiate the additional amounts 
claimed above the original $127,038.48. 
58. Mr. Strickler found there was no explanation within RLB's claim to account 
for the claimed cost of$127,038.48 in the testing and engineering for excavation and fill. 
In its report, RLB did include invoices for Southern Earth Sciences for soils testing and 
G&W Engineers for engineering. Mr. Strickler's report noted that RLB failed to account 
for soils testing in its bid. The only costs he allowed were those for G& W Engineers 
which may have been incurred for additional engineering due to the realignment. He also 
noted, the cost of testing should not have changed due to the realignment and, therefore, 
should not be included within the damages calculation. (Supp. R4, tab 66 at 43-44) As a 
result, Mr. Strickler excluded any cost for testing & engineering because it was not 
included within RLB's bid as a separate line item but did include the cost of the line item 
for G&W Engineers in the amount of$24,939 (supp. R4, tab 66, ex. 3 at 3, note 17). 
Mr. Boyd testified he "believes" he included testing costs in his bid but under the wrong 
line item, line item 24 -"drag line mats" (tr. 11199). That line item bid is only $30,000 
(supp. R4, tab 38 at 4). Additionally, RLB's claimed amount for testing does not account 
for non-embankment testing under the contract (R4, vol. II at §§02316-6 ~3.4, 
02731-4~1.5.1 (6), (7), 02632-4~2.1.3). We find RLB's embankment additional related 
testing cost is $24,939. 
(5) Indirect Costs: Home Office Overhead, Profit & Bond Cost 
59. The REA included a 26.41% overhead rate based upon actual costs incurred 
between 1 January 2008 and 30 November 2008 (app. Claim, tab 21). The DCAA 
adjusted the indirect cost pool for the identified unallowable costs and calculated a new 
rate of 21.30% (see finding 31 ). The government and RLB now agree on this percentage 
(supp. R4, tab 66, ex. 3 at 3 note 20; app. reply hr. at 24, item 20). Likewise, RLB now 
adopts the profit rate (8%) and 
bond cost (1.044%) stated in the Strickler Report (app. 
reply hr. at 24, items 21, 22). Therefore, we find the appropriate overhead rate to be 
21.30%, the profit rate to be 8%, and the bond rate to be 1.044%. 
percentage of 68% of $130,466.43 with no explanation in the associated notes. 
(App. reply hr. at 24, item 18) 
25 

60. We find RLB's total incurred cost for all embankment work to be calculated 
as follows: 
Net Equipment Cost 
Net Labor Cost 
Subcontract Cost (Weeks Marine) 
Laborer Travel Costs (Hotels) 
Testing and Engineering 
Per diem for traveling laborers 
Total direct cost of embankment work 
21.30%, Home Office Overhead 
8°/o Profit 
Bond@ 1.044°/o 
Total Cost for Embankment Work 
Unquantifiable, Non-Reimbursable Costs 
(I) Settlement & Placement Outside Section 
$1,575,321.48 
$472,113.69 
$300,413.40 
$96,763.06 
$24,939 
$67,842.~4 
$2,537,393.17 
$540,464.75 
$202,991.45 
$26,490.38 
$3,307,339.75 
61. Mr. Strickler identified additional items that he did not deduct from his 
estimate but, in his opinion, should not be recovered by RLB because they are not 
recoverable under the contract and were not deducted from RLB' s claim. These items 
include such things as reimbursement for settlement of dirt placed upon the levee, dirt 
placed outside the contractual bounds of the contract, dirt not placed within the 
requirements of the contract, etc. (Supp. R4, tab 66 at 16, 18) The contract is clear that 
RLB was allowed, but not required, to install settlement plates but if it chose not to do so, 
it would not be paid for any settlement that occurred in the levee (R4, tab 1 at 02332-2, 
~ 1.3.2, "Settlement"; at 02332-4, ~ 1.4.3, "Forfeiture of Payment for Settlement of 
Foundation"). RLB elected not to install settlement plates because Mr. Boyd did not 
think settlement was an issue on this job (tr. 1168-69, 21198). It is undisputed there was 
settlement of the dirt placed on the levee. However, as Mr. Strickler also points out, there 
26 

is no way to know how much settlement occurred since the settlement plates were not 
used (supp. R4, tab 66 at 16). RLB's total cost claim includes all costs that were incurred 
placing dirt on the levee, including costs for dirt that later settled that are not 
reimbursable under the contract. The same issue exists for placing dirt outside of section. 
(Supp. R4, tab 66 at 17 -18) The final as-built survey found RLB had placed dirt outside 
the contractual boundaries, which was not reimbursable under the contract (R4, tab 25). 
Mr. Boyd effectively established the inaccuracy of this survey but in doing so did not 
question the fact that some dirt was placed outside the contractual limits (see finding 24 ). 
The problem is we have no way of knowing the quantity or its associated cost included in 
RLB 's claim and neither party has attempted to quantify it. As a result, we find these 
costs are included within RLB's claim, are not readily quantifiable but should not be 
reimbursed in RLB' s claim. 
(2) Cost Claimed but Paid Under Other Line Items 
62. Mr. Strickler also found RLB should not be reimbursed for items that were 
bid, and are compensated, in other line items of the contract but are currently included 
within RLB's total cost claim. One such item is the fact that Mr. Boyd shifted 
approximately 10% ofthe bid embankment cost ($1.04 ofthe $10.04 estimated bid cost) 
into another bid line item (supp. R4, tab 66 at 36). Although the exact costs are 
unknown, these costs would be reimbursed under RLB 's claim methodology despite the 
fact they have presumably already been paid under another line item. In a similar 
manner, the contract required RLB to make several repairs ("hurricane cuts") to breaches 
that had previously been made in the levee (see supp. R4, tab 43, Drawing No.9, 
"Typical Repair Levee Section"). Mr. Boyd testified that, in RLB's bid, he put the costs 
to repair the seven levee breaches in CLIN 0005, "Gas Lines," 
for the pipeline repair 
work (tr. 1/73-74, 201-02). Mr. Roy testified that his calculation of total embankment 
costs did not include any deduction for costs for levee repair work that RLB included 
under CLIN 0005, "Gas Lines." When asked why not, he stated "No, that's embankment 
work." (Tr. 2/28) Thus, Mr. Strickler asserts that under RLB's claim methodology it is 
seeking to be paid twice for costs associated with the levee repair work. Similarly, 
RLB's bid includes mobilization and demobilization costs (CLIN 0001) 
for various items 
ofwork associated with the embankment work. RLB's claim methodology makes no 
attempt to remove these costs from its embankment-only claim, even though RLB has 
already been compensated for these costs under CLIN 0001. Similarly, in its "other 
work" calculations, Mr. Roy has not assigned any mobilization and 
demobilization costs 
to any non-embankment work. (Supp. R4, tab 66 at 37-38) We find these costs are not 
readily quantifiable but should not be reimbursed as part ofRLB's claim. 
(3) RLB Internal Issues /Inefficiencies 
63. Based upon his review of the project documents, Mr. Strickler also found that, 
"there were multiple RLB internal issues which caused increased costs for which RLB 
27 

should not be compensated" including, poor surveying practices, poor construction 
practices that increased the moisture content of the soil, deviation from contract 
specifications requiring double-work; out of sequence work; and general poor 
productivity issues. (Supp. R4, tab 66 at 29-35) His conclusions, for the most part, are 
based upon a review of the QARs and videos taken on-site during the work (id.). The 
government presented four videos at the hearing in an attempt to demonstrate RLB's 
inefficient practices during performance (tr. 3/97-99; supp. R4, tab 14). Based upon 
Mr. Boyd's testimony in rebuttal explaining each of the actions in the videos, we are not 
persuaded these videos establish RLB used inefficient practices on the job (tr. 3/133-36). 
We find Mr. Strickler's thorough review of the QARs more persuasive but it does not 
factor in the possible impact of the government's actions, or inaction, in contributing to 
any problems in performing the work. Although not readily quantifiable, we find some 
costs were the direct result of inefficiencies attributable to appellant and should not be 
reimbursed. 
DECISION 
Appellant, as the party claiming the benefit of the adjustment, bears the burden of 
proving the amount of loss with sufficient certainty so that the determination of the 
amount of damages will be more than mere speculation. Wilner v. United States, 24 F.3d 
1397 (Fed. Cir. 1994); Lisbon Contractors, Inc. v. United States, 828 F.2d 759, 767 (Fed. 
Cir. 1987). In order to prevail, appellant must prove three elements: (1) liability- that the 
government did something that changed the contractor's costs for which the government 
is legally liable; (2) causation-that there exists a causal nexus between the basis for 
liability and the claimed increase in costs; and (3) resultant injury. Servidone Constr. 
Corp. v. United States, 931 F.2d 860,861 (Fed. Cir. 1991). The government concedes 
the first two elements as they relate to the realignment (findings 33, 34). The crux of the 
dispute before the Board is the third element, i.e., the magnitude of the cost impact on 
appellant's performance flowing from the realignment of the ditch and how the financial 
impact should be measured. 
Impact of the Realignment 
Appellant argues the movement of the centerline of the excavation pit to the west 
resulted in a loss of dry material which would have been placed directly onto the levee 
with little or no processing, requiring RLB to utilize wetter material which required 
additional processing beyond the requirements of its bid. Additionally, the movement of 
the excavation pit not only increased the moisture content of the dirt requiring more 
processing, it also reduced the area where wet dirt could be processed as a result of the 
reduction of the width of the berm between the excavation pit and the levee. The 
realignment also reduced the volume of dirt produced for construction of the levee, 
reducing the elevation of the levee from+ 12.5 feet to +8 feet. (App. br. at 5-7) In 
summary, appellant argues the realignment resulted in a cascading chain of changes in 
28 

the manner of performance, which was exacerbated by the lack of contract administration 
and guidance by the government, resulting in increased costs of performance. 
The government concedes the realignment did reduce the amount of borrow 
material, did cause an increased moisture level (higher pit-to-fill ratio) and reduced the 
available berm area for drying the dirt resulting in an increase in appellant's cost of 
performance (findings 33, 34, 40). However, the government argues the impact of the 
realignment was minimal because RLB did not bid the job with the intent of using a 
"direct placement" approach, directly placing borrow material onto the adjacent levee 
and, even if it had intended to do so, the realignment had no impact on appellant's 
inability or decision, to not use that method because appellant's bid seriously erred in its 
estimate of the optimal moisture content of the soil and the borrow material in the borrow 
ditch (gov't hr. at 2-3). In addition, the government argues appellant's own inefficiencies 
and lack of experience in performing this specific type of work contributed to the 
increased cost of performance (id. at 81-93). 
Since the government concedes entitlement and, based upon our findings above, 
we conclude that the realigned borrow pit, when combined with the government's lack of 
timely contract administration, resulted in a significant impact upon appellant's 
performance ofthe work (findings 10, 13, 16-20, 21-23). We now tum to the financial 
measurement of that impact. 
Method of Proof RLB 's Total Cost Claim 
The basic method of proving the quantum resulting from an equitable adjustment 
is the difference between the reasonable cost to perform the work as originally required, 
and the reasonable cost to perform the work as changed. See B.R. Servs., Inc., ASBCA 
Nos. 47673, 48249, 99-2 BCA ~ 30,397; Buck Indus., Inc., ASBCA No. 45321, 94-3 
BCA ~ 7 ,061. The realignment occurred before the work began. Appellant argues it was 
impossible to breakout the specific costs resulting from the realignment and the resulting 
changes that flowed from that action in its claim given the nature of the work and the fact 
it was only after work began that the parties became aware of the impact the realignment 
would have (finding 29; app. hr. at 33-35). The government does not challenge this 
assertion. We agree that there is no way to specifically segregate the costs associated 
with the realignment. 
Given it could not segregate the costs associated with the change, appellant chose 
to employ what it refers to as a Total Cost Claim method asserting it is entitled to the 
'"reasonable value' of the work" as measured by the total cost of excavation and compact 
fill work minus the amount alreadypaid for the work (finding 29; app. br. at 7). 
Appellant sometimes refers to its claim as a modified total cost claim because it sought to 
remove all non-embankment work costs (app. hr. at 32-33; app. surreply hr. at 10). 
However, it did not modifY its claim by recognizing 
any costs that resulted from its own 
29 

fault and asserts there is no reasonable way to quantify such costs (finding 29; app. br. at 
8). 
Although often stated, it bears repeating that the total cost method is not preferred 
because it assumes that all additional costs of performance are solely the government's 
fault. As a result, courts and boards have developed four factors, as safeguards, that the 
claimant must prove in order to employ this method of proof: (1) the nature of the 
particular cost is impossible or highly impracticable to determine with a reasonable 
degree of certainty; (2) the contractor's bid or estimate was realistic; (3) the contractor's 
actual incurred costs were reasonable; and (4) the contractor was not responsible for any 
of the added costs. Raytheon Co. v. United States, 305 F.3d 1354, 1365-66 (Fed. Cir. 
2002). Appellant argues that it has proven these four factors and, consequently, the total 
cost method is not only an appropriate 
method to establish its damages but that it is the 
only way to calculate its damages (app. br. at 31-49). 
The government counters that application of the total cost or modified total cost 
methodology is not appropriate because, based upon the record, appellant's claim does 
not meet the requirements for application of those methods (gov't br. at 3). We have a 
more fundamental problem with appellant's professed use of the total cost method 
because, in fact, its claim does not apply the total cost method formula. The basic total 
cost formula is the difference between the bid cost of the contract and the actual total cost 
of performing the contract as changed. Raytheon Co. v. White, 305 F.3d 1354, 1365 (Fed. 
Cir. 2002). Although both parties refer to appellant's claim as a total cost claim, 
appellant's claim only seeks payment for the total value of its embankment work minus 
the amount it has already been paid. Appellant might have intended the amount already 
paid to represent its cost under the original bid but appellant does not characterize it as 
such and there is no evidence to support its use as such. Therefore, we conclude 
appellant's claim does not meet the requirements of a total cost claim. 
Even if appellant intended the amount paid to represent the bid amount we would 
reject it as such given the structure of this contract. The bid cost, as used in the total cost 
method, serves as a baseline for what the work should have cost absent the factors that 
caused the overrun. That is the reason courts and boards have imposed a requirement that 
the bid was realistic. Here, the bid was a dollar amount per CY applied against an 
estimated number of CY s placed for purposes of the bid competition, with the final 
payment to be determined by the final amount of CY s of dirt actually placed. 
Consequently, there was no fixed total dollar bid; the bid price was the dollar amount per 
CY. The only way to determine an accurate dollar cost estimate for what the work would 
have cost absent the realignment is to multiply the bid price by the CY s of dirt actually 
placed. Per our findings, there is no accurate estimate of the CYs actually placed (finding 
24 ). Appellant's brief asserts the only undisputed measurement of CY s placed is the one 
invoiced and applied in its claim (app. reply br. at 21 n.41). We disagree. The 
government argues that its final survey contradicts appellant's assertion. Appellant's 
30 

own witness, Mr. Boyd, after credibly challenging the accuracy of the government's final 
survey, stated he does not believe anyone knows how much dirt was excavated or placed 
(tr. 11120). We agree with Mr. Boyd. Unfortunately, this leaves us without an accurate 
measure in the record of the CYs of dirt actually placed. Consequently, there is no way 
to apply the total cost method because there is no way to calculate the bid cost for 
purposes of measuring the cost of the work as unchanged. 
An alternative method of calculating the bid amount would be to calculate the 
difference between the bid dollar amount per CY and the incurred dollar amount per CY. 
In fact, the government's expert, Mr. Strickler, made an attempt to do just that in his 
report comparing the original bid dollar amount per CY against an estimated dollar 
amount per CY cost associated with the work as changed to arrive at a total damage 
calculation based upon the CYs placed used by the CO in the COFD (finding 41). 
Appellant, applying Mr. Strickler's methodology, presented its alternative calculations in 
its brief (app. br. at 22). However, appellant went on to correctly point out in its brief 
that Mr. Strickler's methodology is flawed because any calculation of the dollar amount 
per CY costs incurred for the work as changed is dependent upon an accurate 
determination of the amount of dirt actually placed and there is no support in the record 
for the CYused in Mr. Strickler's calculations (app. hr. at 21). We agree. 
Appellant has proven its actual incurred costs for the work but has failed to 
support its claim under the total cost method of proof. We have also found it was 
impracticable for appellant to segregate its costs resulting from the change (finding 29). 
The government concedes entitlement and confronted with the government's clear 
liability we conclude the government's actions had significant cost impact upon 
appellant. However, the record does not establish whether all of the incurred costs in 
excess of the bid were solely the fault of the government. Accordingly, we consider 
whether we may make an award on the basis of a jury verdict. There are three elements 
required for a jury verdict. Grumman Aerospace Corp. v. Wynne, 497 F.3d 1350, 
1358-59 (Fed. Cir. 2007). The first is clear proof of injury. Here the government 
concedes entitlement. Appellant has, therefore, established injury. The second element 
is that there is no more reliable method for computing damages. Given the change to 
appellant's manner of performance, it was impracticable to prove actual damages. Our 
findings establish appellant has also met this element of proof. The third element is that 
evidence is sufficient for a court to make a fair and reasonable approximation of 
damages; given the evidence in the record, we can do so. Our findings establish the total 
incurred costs on the project for the embankment work. As a result, we conclude that the 
evidence allows us to make a fair and reasonable approximation of the damages incurred. 
We believe the evidentiary record here fully supports application of a jury verdict 
and we would be remiss if we were to deny appellant's recovery here where the evidence 
indicates the government's actions adversely impacted appellant's manner of 
performance of the contract. We found appellant proved actual burdened costs of 
31 

$3,307,339.75 for the embankment work (finding 59). However, appellant has not met 
its burden of proving that the entire amount is attributable to the government and the 
realignment. Our findings establish there were costs included within appellant's claim 
for such things as settlement, dirt placed outside contractual boundaries, costs reimbursed 
under other line items, non embankment mobilization and demobilization costs and 
inefficiencies during performance that are attributable to appellant but should not be 
reimbursed. (Findings 61-63) Although these items are not readily quantifiable, we 
conclude we must account for them within our jury verdict. 
In the nature of a jury verdict, we conclude that appellant is entitled to recover 
65% of its total embankment costs, $2,149,770.84, as a result of the government's 
actions. Subtracting amounts already paid, $1,234,800, appellant is entitled to 
$914,970.84. This amount is inclusive of the amounts granted in the COFD but not yet 
paid. 
CONCLUSION 
The appeal is sustained in the amount of $914,970.84 for the reasons stated above. 
Interest pursuant to 41 U.S.C. § 7109 to run from 17 November 2009. 
Dated: 3 January 2014 
I concur 
~/4i 
Administrative Judge 
Acting Chairman 
Armed Services Board 
of Contract Appeals 
32 
I concur 
~~ 
DIANA S/DICKINSON 
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. 57638, Appeal ofRLB 
Contracting, Inc., rendered in conformance with the Board's Charter. 
Dated: 
33 
JEFFREY D. GARDIN 
Recorder, Armed Services 
Board of Contract Appeals