Phylway Construction, LLC
Docket: ASBCA 63705, ASBCA 63723
Decision date: 2025-02-13

ARMED SERVICES BOARD OF CONTRACT APPEALS 
 
OPINION BY ADMINISTRATIVE JUDGE O’CONNELL 
 
These appeals involve similar claims on two contracts arising out of work that 
appellant, Phylway Construction, LLC (Phylway), performed as a result of Hurricane 
Ida.  The parties have elected to submit the appeals on the record pursuant to Board 
Rule 11.  Only entitlement is before us.  The Board denies the appeals. 
 
FINDINGS OF FACT 
 
ASBCA No. 63705 – The Woodpark Contract 
 
1.  The United States Army Corps of Engineers (USACE) awarded Contract 
No. W912P8-20-C-0032 to Phylway on July 10, 2020, in the amount of $51,702,210.  
The contract work included clearing, grubbing, and vegetation removal, excavation for 
a new drainage canal, and placement of uncompacted embankment and compacted 
embankment.  (App. supp. R4, tab A-31, Joint Stipulations of Fact (JSF) ¶ 1; R4, tab 3 
at 4)
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1  All Rule 4 citations appearing under this portion of the decision (Woodpark 
Contract) relate to the Rule 4 materials the parties submitted under ASBCA 
No. 63705. 
Appeals of - )  
 )  
Phylway Construction, LLC ) ASBCA Nos. 63705, 63723 
 )  
Under Contract Nos. W912P8-20-C-0032 
 W912P8-19-C-0015 
)  
   
APPEARANCES FOR THE APPELLANT: S. Leo Arnold, Esq. 
Matthew W. Willis, Esq. 
    Ashley & Arnold 
    Dyersburg, TN 
 
APPEARANCES FOR THE GOVERNMENT: Michael P. Goodman, Esq. 
    Engineer Chief Trial Attorney 
 William G. Meiners, Esq. 
    Engineer Trial Attorney 
    U.S. Army Engineer District, New Orleans 

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2.  The contract contains two relevant clauses.  The first is Federal Acquisition 
Regulation (FAR) 52.236-7, PERMITS AND RESPONSIBILITIES (NOV 1991).  
This clause provides in part: 
 
The Contractor shall [] be responsible for all materials 
delivered and work performed until completion and 
acceptance of the entire work, except for any completed 
unit of work which may have been accepted under the 
contract. 
 
(JSF ¶ 15; R4, tab 3 at 89)  
 
3.  The second is the Damage to Work clause, which provides in part: 
 
The responsibility for damage to any part of the permanent 
work shall be as set forth in the Contract Clause . . . 
PERMITS AND RESPONSIBILITIES (FAR 52.236-7). 
However, if in the judgment of the Contracting Officer 
(CO), any part of the permanent work performed by the 
Contractor is damaged by flood, earthquake, hurricane, or 
tornado which damage is not due to the failure of the 
Contractor to take reasonable precautions or to exercise 
sound engineering and construction practices in the 
conduct of the work, the Contractor shall make the repairs 
as ordered by the CO and full compensation for such 
repairs will be made . . . . 
 
(JSF ¶ 16; R4, tab 3 at 148) (emphasis added)  
 
4.  On August 29, 2021, Hurricane Ida made landfall in southeastern Louisiana 
as a Category 4 hurricane.  The Woodpark contract site flooded as a result of a storm 
surge and caused a variety of impacts to the site.  (JSF ¶¶ 3-4)  
 
5.  USACE paid Phylway for some of the work necessitated by the hurricane.  
For example, in Modification No. P00009, USACE paid Phylway $2,496,500 to clean 
and re-excavate the new drainage canal to the original template and to remove 
siltation.  (R4, tab 19 at 2)   
 
6.  The storm surge left a variety of debris on the site, including metal roofing, 
car tires, metal water tanks, plastic gas tanks, creosote timber, trees and other wood 
materials, marsh vegetation, and a layer of mud (App. supp. A-35, decl. of Michael 
Ard ¶ 7).  While Phylway could not resume performance of the work until it removed 
the debris (JSF ¶ 4), it has not identified any specific damage caused by the debris.   

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7.  USACE refused to pay for removal of debris deposited by the storm surge 
(JSF ¶ 8).   
 
8.  Phylway submitted a claim on March 1, 2023 (R4, tabs 10, 12 
(certification)).  As revised on April 12, 2023, Phylway sought $280,162.64, for 
“Hurricane Ida Cleanup, Etc.” (R4, tab 14 at 9). 
 
9.  On June 9, 2023, CO Charles R. Zammit, Jr., denied the claim (R4, tab 2 
at 8).   
 
10.  On August 31, 2023, Phylway submitted a timely appeal that the Board 
docketed as No. 63705. 
 
11.  As revised in its complaint, Phylway seeks $165,609.58, which it contends 
is compensable under the Damage to Work clause (compl. ¶ 12).  Phylway seeks 
compensation for removal of the debris deposited on the compacted levee 
embankment and on the uncompacted material placed to fill in a drainage ditch (id. ¶¶ 
9-12). 
 
ASBCA No. 63723 – The Happy Jack Contract 
 
12.  USACE awarded Phylway Contract No. W912P8-19-C-0015 on 
February 13, 2019, in the amount of $48,654,095.  The work included clearing and 
grubbing and new levee/ramp crossing embankments.  (JSF ¶ 1)  Like the Woodpark 
contract, the Happy Jack contract incorporated FAR 52.236-7, Permits and 
Responsibilities (Nov 1991) and the identical or nearly identical Damage to Work 
clause (JSF ¶¶ 11-12; R4, tab 4 at 19, 49).
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13.  As a result of Hurricane Ida, the Happy Jack site flooded, and a storm surge 
left debris on the site such as creosote timber, trees, other wood materials, metal tanks 
and typical garbage and waste (JSF ¶ 3; aff. of James Heiser, ¶ 13). 
 
14.  Like on the Woodpark contract, USACE compensated Phylway for some of 
the impact caused by the hurricane.  For example, in Modification No. A00014, 
USACE paid Phylway $28,768, for the loss of 899 cubic yards of embankment.  The 
modification described the work as “repair damage to permanent work caused by 
Hurricane Ida.”  (R4, tab 16 at 2). 
 
 
2  All Rule 4 citations appearing under this portion of the decision (Happy Jack 
Contract) relate to the Rule 4 materials the parties submitted under ASBCA 
No. 63723. 
 

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15.  Also like the Woodpark contract, USACE refused to pay for debris 
removal.  On May 26, 2023, Phylway submitted a claim seeking $43,793.27 (R4, tab 3 
at 1, 7).  On July 17, 2023, CO Christopher M. Nuccio denied the claim (R4, tab 2). 
 
16.  On September 25, 2023, Phylway submitted a timely appeal that the Board 
docketed as No. 63723.  Phylway seeks the costs of removing the debris on top of 
compacted fill (levee material) and from areas that it had cleared and grubbed but had 
not yet begun placing embankment.  Phylway continues to seek $43,793.27, which it 
contends it is entitled to under the Damage to Work clause.  (Compl. ¶¶ 8-11) 
 
DECISION 
 
These appeals turn on interpretation of the Damage to Work clause.  USACE 
contends that deposition of debris on the site is not “damage,” for purposes of that 
clause, if the appellant cannot identify specific damage or injury to that portion of the 
work.  In other words, USACE contends that the mere presence of the debris is not 
damage.  USACE also contends that removal of the debris is not “repair” as provided 
in the clause.  It also contends that clearing and grubbing is not “permanent” work.   
 
The long-established rule is that the contractor is responsible for damage 
suffered while work is in progress.  For example, in 1931 the Court of Claims denied a 
claim for the cost of reconstructing a nearly completed building that had been 
damaged by a gas explosion that was not the fault of either the contractor or the 
government.  The Court explained that: 
 
The rule is well settled that where a contractor undertakes 
to erect a building, and during the process of construction 
the building is injured or destroyed without fault of either 
party to the contract, the contractor is still bound by his 
undertaking to complete the building, and is liable in 
damages if he fails to do so. 
 
Mittry v. United States, 73 Ct. Cl. 341, 358 (1931). 
 
The Permits and Responsibilities clause shifts the risk for damage to the work 
to the government if the work is completed and accepted.  Thus, the Board has held 
that the “general rule under the Permits and Responsibilities clause is that the 
contractor is responsible for the contract work until it is completed and accepted.  If 
work in process is damaged, the contractor’s responsibility is to restore it without 
compensation.”  Joseph Becks & Assocs., Inc., ASBCA No. 31126, 88–1 BCA ¶ 
20,428 at 103,326, aff’d, 864 F.2d 150, *1 (Fed. Cir. 1988) (table) (citing Al Johnson 
Constr. Co. v. United States, 854 F.2d 467, 470 (Fed. Cir. 1988)).  The Board has 
interpreted the clause to bar a claim that included the costs of debris cleanup after 

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unusually severe rainstorms.  N.J. Riebe Enters., Inc., ASBCA No.41691, 92-2 BCA 
¶ 24,917 at 124,239.   
 
Phylway relies on a decision in which the Board provided the appellant some 
relief on a contract that contained the Permits and Responsibilities clause but not the 
Damage to Work clause.  In Titan Pacific Construction Corp., ASBCA No. 24148 et 
al., 87-1 BCA ¶ 19,626, the project site was struck by a severe wind and rainstorm, 
leaving trees and other debris on the site.  On the day the storm ended, and the 
following day (February 13-14, 1979), the contractor performed emergency removal of 
debris from roads and construction sites to provide access for fire protection for 
buildings under construction.  More than five weeks later (March 26-31, 1979), the 
contractor removed additional debris from earthwork and roadwork under 
construction.  Id. at 99,338-40.  The contractor sought payment for both periods of 
debris removal.  The Board issued what could be characterized as a split decision.  The 
Board granted the contractor compensation for the emergency debris removal in the 
first period, reasoning that the contract did not call for this work.  Id. at 99,356.  On 
the other hand, the Board denied compensation for debris removal for the later period 
of removal, which the Board concluded fell under the Permits and Responsibilities 
clause.  Id.   
 
At first blush, the Board’s decision in Titan appears internally inconsistent 
because the Board ruled that the contractor was entitled to payment for removal of 
debris on February 13-14, 1979, but not debris removed from March 26-31, 1979.  
However, a close read of the decision provides a possible answer.  In the latter period 
of time, the Board stated that the contractor removed the debris from earthwork and 
roadwork under construction, which clearly indicates that it was removed from the 
project site.  Id. at 99,356.  In the earlier period, the Board stated that the debris had 
been deposited on “roads, including those under construction,” described the area of 
removal as “roads and construction sites” and then later stated that this was work “not 
called for under the contract.”  Id. at 99,338, 99,340 and 99,356.  While not perfectly 
clear, we infer from this that the contractor had to remove debris from roads that were 
not part of the project site to provide access for fire protection to the project site.   
 
In any event, Phylway’s claims involve debris removal on the two project sites 
(findings 6, 13).  Accordingly, they are comparable to the portion of the claim in Titan 
that the Board denied, namely the removal of debris from the earthwork and roadwork 
under construction.  Id. at 99,356.  This distinction renders Phylway’s reliance upon 
the Board’s decision in Titan unavailing. 
 
The Damage to Work clause contains an  exception to the rule that the 
contractor is responsible to repair damage to work not yet accepted to the extent the 
contractor can demonstrate that (1) the claim involves “permanent” work; (2) the work 

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was “damaged” by flood or hurricane and not due to the negligence of the contractor; 
and (3) the contractor performed “repairs” ordered by the CO (finding 3). 
 
USACE relies upon the decision of the Court of Federal Claims in Hardwick 
Bros. Co., II v. United States, 36 Fed. Cl. 347 (1996), aff’d,168 F.3d 1322 (Fed. Cir. 
1998) (table).  Hardwick involved a contract for construction of a system of levees that 
contained both the Permits and Responsibilities and Damage to Work clauses.  Id. 
at 353, 414.  The contractor asserted a claim for damage to work caused by a river 
flood.  The court observed that the claim did not involve destruction of the levee 
at issue but rather flooding that resulted in the deposit of debris on the embankment, as 
well as mud on reinforcing steel bars, both of which had to be removed by the 
contractor.  The court rejected the contractor’s claim, holding that neither the debris on 
the embankment, nor the mud on the steel bars, constituted damage under the Damage 
to Work clause.  Id. at 414-15.  In affirming the decision, the Federal Circuit cited with 
apparent approval the trial court’s conclusion “that this exception [in the Damage to 
Work clause] to the general allocation of risk placed on the contractor must be 
construed narrowly. . . .”  168 F.3d 1322 at *5. 
 
While Hardwick is not binding on the Board, we agree with the court’s 
decision.  The Board holds that the debris at issue here did not fall under the meaning 
of the word damage, as that word is commonly used, nor does the removal of the 
debris fall under the definition of repair.
3  In so ruling, we have consulted the online 
version of the Oxford English Dictionary and Webster’s Third New International 
Dictionary (Unabridged).  We find that the meaning of ‘damage’ in the context of the 
Damage to Work clause is captured by the following entry from the Oxford English 
Dictionary:  “Injury, harm; esp. physical injury to a thing, such as impairs its value or 
usefulness.”  OXFORD ENGLISH DICTIONARY (2d ed.) (definition last modified 
September 2024),4.  We find that the meaning of “repair” is contained in the following 
definition from the Oxford English Dictionary:  “To restore (a damaged, worn, or 
faulty object or structure) to good or proper condition by replacing or fixing parts; to 
mend, fix.” OXFORD ENGLISH DICTIONARY (2d ed.) (definition last modified 
December 2024).5  
 
In these appeals, the debris was deposited on the embankments, on the fill in a 
drainage ditch, and in areas that had been cleared and grubbed (findings 11, 16).  The 
Board concludes that debris that settled on, for example, the embankment, does not, by 
 
3  Neither party has cited a relevant definition of “damage” or “repair” in the contracts 
or the FAR. 
4  See https://www.oed.com/dictionary/damage_n?tab=meaning_and_use#7406157 
(last accessed January 16, 2024). 
5  See https://www.oed.com/dictionary/repair_v2?tab=meaning_and_use#26104912 
(last accessed January 16, 2024).  

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its mere presence, cause “physical injury” or harm to the embankment, even if the 
debris is preventing a resumption of the work.  Moreover, removal of the debris is not 
an action directed at “a damaged, worn, or faulty object or structure,” nor does it 
involve replacing or fixing parts, or require actions that could be characterized as 
mending. 
 
Accordingly, the Board holds that the debris caused neither damage, nor 
required repair.  Phylway’s claim does not fall under the narrow exception contained 
in the Damage to Work clause.  Based on our holding, we need not reach USACE’s 
contention that clearing and grubbing is not permanent work. 
 
CONCLUSION 
 
The appeals are denied. 
 
Dated:  February 13, 2025 
 
 
 
 
 
 
 
 
 
 
 
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 
 
 
 
 
 DAVID B. STINSON 
Administrative Judge 
Armed Services Board 
of Contract Appeals 
 
 

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 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. 63705, 63723, Appeals of 
Phylway Construction, LLC, rendered in conformance with the Board’s Charter. 
 
 Dated:  February 13, 2025 
 
 
 
 
 
 
 
 
PAULLA K. GATES-LEWIS 
Recorder, Armed Services 
Board of Contract Appeals