Balfour/S&P Two, A Joint Venture
Docket: ASBCA 58067
Decision date: 2015-09-01

ARMED SERVICES BOARD OF CONTRACT APPEALS 
Appeal of -- ) 
) 
Balfour/S&P Two, A Joint Venture ) 
) 
Under Contract No. W9126G-09-C-0054 ) 
APPEARANCE FOR THE APPELLANT: 
APPEARANCES FOR THE GOVERNMENT: 
ASBCA No. 58067 
Douglas L. Patin, Esq. 
Bradley Arant Boult Cummings LLP 
Washington, DC 
Thomas H. Gourlay, Jr., Esq. 
Engineer Chief Trial Attorney 
Jane Holt-Duecaster, Esq. 
Engineer Trial Attorney 
U.S. Army Engineer District, Ft. Worth 
OPINION BY ADMINISTRATIVE JUDGE WILSON 
This appeal arises from the denial of a claim for costs associated with 
performing remedial work to correct alleged deficiencies in drilled concrete foundation 
piers due to alleged defective specifications and the government preclusion of 
appellant's means and methods to complete construction. A six-day hearing was held 
in San Antonio, Texas, on entitlement only. The parties have submitted post-hearing 
and reply briefs. The Board has jurisdiction over this matter pursuant to the Contract 
Disputes Act of 1978 (CDA), 41 U.S.C. §§ 7101-7109. For the reasons stated below, 
we deny the appeal. 
FINDINGS OF FACTS 
1. On 17 September 2009, the United States Army Corps of Engineers, 
Fort Worth District (Corps or government), awarded Contract No. W9126G-09-C-0054 
to Balfour/S&P Two, A Joint Venture (Balfour or appellant) in the amount of 
$46,437,194 (R4, vol. 1, tab 4). The parties involved in the joint venture were Balfour 
Beatty and Satterfield & Pontikes, JV (supp. R4, vol. 10, tab 168). The contract was for 
the construction of the Airmen Training Complex Dormitory 1, at Lackland Air Force 
Base (Lackland AFB), in San Antonio, Texas. This project, which was the first 
dormitory to be constructed out of eight identical dormitories, was part of a larger 
program at Lackland AFB called the Airman Training Complex (ATC). The contract 
performance period was 730 days from receipt of the Notice to Proceed (NTP). (R4, 
vol. 1, tab 4) The contract included a structural design for the foundation that consisted 

of 136 reinforced drilled piers (also referred to as drilled caissons) installed to a depth of 
approximately 65 feet below grade (R4, vol. 2, tabs 13-19). The relevant contract 
drawings required that the upper section of each pier be installed using a sonotube, which 
is a round cardboard formwork (akin to a giant cardboard paper towel roll) (R4, vol. 2, 
tab 20; supp. R4, vol. 40, tab 797). 
2. The contract also contained the following special technical provisions: 
SECTION 31 63 26 
DRILLED CAISSONS 
08/08 
PART 1 GENERAL 
1.1 UNIT PRICES 
1.1.1 Basis of Bids 
Base the bid on the number and total length of caissons, 
established by top and bottom elevations and 
diameters.... The Contractor will not receive payment 
for rejected caissons or for those not conforming to 
specifications. 
1.7 SEQUENCING 
1. 7 .1 Caisson Excavation 
Perform excavation of caissons or groups of caissons so 
that reinforcing steel and concrete placement is a 
continuous operation performed the same day that the 
excavation is completed. Do not leave excavations 
open overnight. 
2.1 MATERIALS 
2.1.1 Concrete Work 
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Perform all concrete work in accordance with 
requirements of Section 03 3100.0010 CAST-IN­
PLACE STRUCTURAL CONCRETE, as modified 
herein: 
2 .1.1.1 Strength 
Provide 3000 psi strength concrete at 28 days, with 
slump from 4 to 6 inches. 
2.1.1.3 Reinforcing Steel 
Provide reinforcing steel conforming to ASTM A 
615/ A 61 SM Grade 60, welded into cages in 
accordance with AWS Dl . 4/Dl . 4M and inserted 
securely in the caissons, in position and alignment, as 
shown, prior to concrete placement. 
2.1.3 Casing Steel 
... Provide casings with an outside diameters [sic] not 
less than indicated shaft sizes and a minimum of 114 inch 
thick. Temporary casings shall extend down 40 feet 
below existing grade .... 
3.2 INSTALLATION 
b. Bring concrete to a true level surface inside the 
shaft and a full width cross key formed, or dowels 
installed, if it becomes necessary to interrupt placing 
concrete in any caisson. Prior to placing additional 
concrete, clean surfaces of laitance and slush with one-
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to-one portland cement grout, having a water-cement 
ratio not exceeding that of the concrete. 
(R4, vol. 1, tab 12 at 417, 420-22) The drilled pier foundation is created as follows: 
The process begins with drilling a hole with an aug[ e ]r. 
And the soils are displaced .... 
... [A] casing is placed down in the hole, as the hole 
is started. And then once placed inside the hole, the auger 
action goes inside and continues the drilling until it gets to 
what's called the proper bearing depth. 
And once it reaches a certain resistance that is 
acceptable to the Government's geotechnical 
representatives it's considered proper to begin the 
placement of concrete. 
(Tr. 1/14-15) Before the concrete is placed, a rebar cage (approximately 60 feet in 
length) is inserted inside the drilled shaft. Additionally, the contractor is required to 
"[ c ]ontinuously remove all water that flows into the excavations and from the 
excavation bottom, to the extent possible prior 
to concrete placement." The applicable 
contract provisions further state: 
The maximum permissible depth of water is 2 inches. In 
the event of a severe water condition that makes it 
impossible or impractical to dewater the excavation, place 
concrete using an underwater tremie after water movement 
has stabilized. 
(R4, vol. 1, tab 12 at 422) The record reflects that a "tremie" is a solid pipe that 
concrete is pumped through to fill the previously-drilled shaft. The tremie may be 
inserted directly in the freshly-poured concrete to continue filling the excavated area; 
effectively filling the shaft with concrete while flushing out water and other 
contaminates from below. (Tr. 1116) 
3. The contract contained the following Federal Acquisition Regulation clauses 
in pertinent part: 
52.236-5, MATERIAL AND WORKMANSHIP (APR 1984) 
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( c) All work under this contract shall be performed in a 
skillful and workmanlike manner. The Contracting Officer 
may require, in writing, that the Contractor remove from 
the work any employee the Contracting Officer deems 
incompetent, careless, or otherwise objectionable. 
(R4, vol. 1, tab 4 at 166) 
(Id. at 171) 
56 .23 6-21, SPECIFICATIONS AND DRAWINGS FOR 
CONSTRUCTION (FEB 1997) 
(a) The Contractor shall keep on the work site a copy of 
the drawings and specifications and shall at all times give 
the Contracting Officer access thereto. Anything 
mentioned in the specifications and not shown on the 
drawings, or shown on the drawings and not mentioned in 
the specifications, shall be of like effect as if shown or 
mentioned in both. In case of difference between drawings 
and specifications, the specifications shall govern. In case 
of discrepancy in the figures, in the drawings, or in the 
specifications, the matter shall be promptly submitted to 
the Contracting Officer, who shall promptly make a 
determination in writing. Any adjustment by the 
Contractor without such a determination shall be at its own 
risk and expense .... 
52.246-12, INSPECTION OF CONSTRUCTION (AUG 1996) 
(b) The Contractor shall maintain an adequate inspection 
system and perform such inspections as will ensure that the 
work performed under the contract 
conforms to contract 
requirement. ... 
(f) The Contractor shall, without charge, replace or correct 
work found by the Government not to conform to contract 
requirements, unless in the public interest the Government 
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consents to accept the work with an appropriate adjustment 
in contract price. The Contractor shall promptly segregate 
and remove rejected material from the premises. 
(R4, vol. 1, tab 5 at 207) 
52.246-21, WARRANTY OF CONSTRUCTION (MAR 1994) 
(a) In addition to any other warranties in this contract, the 
Contractor warrants, except as provided in paragraph (i) of 
this clause, that work performed under this contract 
conforms to the contract requirements and is free of any 
defect in equipment, material, or design furnished, or 
workmanship performed by the Contractor or any 
subcontractor or supplier at any tier. 
( c) The Contractor shall remedy at the Contractor's 
expense any failure to conform, or any defect .... 
( d) The Contractor shall restore any work damaged in 
fulfilling the terms and conditions of this clause .... 
(i) Unless a defect is caused by the negligence of the 
Contractor or subcontractor or supplier at any tier, The 
Contractor shall not be liable for the repair of any defects 
of material or design furnished by the Government nor for 
the repair of any damage that results from any defect in 
Government-furnished material or design. 
(Id. at 208-09) 
4. The contract also contained numerous drawings, including No. A-S502 
"CONCRETE DETAILS" which illustrated the "SONOTUBE FORMING AND 
CLAY CAP DETAILS" (R4, vol. 2, tab 20) 
6 
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5. The NTP was issued by the Corps on 23 September 2009, and was 
acknowledged as having been received by appellant on 6 October 2009 (R4, vol. 2, 
tab 26). Thus, 6 October 2011 was the original contract completion date. 
6. By transmittal dated 1 December 2009, appellant submitted its shop 
drawings for the piers, which included the "TYPICAL PIER REINFORCING 
SUPPORT DETAIL" and proposed the usage of"3" CONCRETE MACON PIER 
BOLSTER (3 -PCS. PER CAGE)" and "PIER SLEDS" to secure the rebar cage 
inside the concrete piers in the alignment and position shown on the drawings in order 
to meet the contract requirement that the rebar cage have at least 3 inches of concrete 
coverage around the cage (R4, vol. 2, tab 27 at 442, 463, 479, 495). It is undisputed 
that these sleds and bolsters proposed by appellant were made of concrete (tr. 3/71 ). It 
is further undisputed that appellant ultimately used plastic wheel spacers (tr. 3171, 
161). 
7. On 24 December 2009, appellant submitted Request for Information (RFI) 
No. 0035, which stated: 
After further coordination with the subcontractors that will 
be drilling and placing the concrete piers, we have 
determined that there are some options that will alleviate 
constructability issues regarding the placement of the pier 
extensions that extend above grade. 
Based on geotechnical information, we are assuming that 
all piers will require casing. The casing will prevent 
formwork and reinforcing ties for the portion of the pier 
above grade from being installed prior to placement of the 
concrete and removal of the casing. This would require 
that concrete be placed up to 5'0" below grade elevation, 
casing completely removed, reinforcing steel pier ties 
above grade installed, 
sonotubes cut to correct length, 
sonotubes set, formed, plumbed, and elevations marked, 
then a continuation of concrete placement. This work 
would have to be performed in an amount of time to not 
create an unintentional cold joint in the pier. 
Logistically this will be difficult to achieve and will 
significantly decrease the production of pier placement. 
We propose that a construction joint in the piers be 
designed and located at or near the grade elevation and the 
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extension of the piers above grade be formed and placed 
the following day. 
Please advise if this will be acceptable. 
The Corps responded on 30 December 2009 stating: "Place the construction joint at 5 
feet below grade. Form the top tiers with sonotube per Detail 6/B-S502." This 
response was sent by Yijie Qiang, Senior Design Engineer. (R4, vol. 2, tab 29) 
8. Subsequently, on 4 January 2010 the Corps offered an additional response to 
RFI No. 0035. This response, sent by Mr. Joshua Alley, the Corps' Quality Assurance 
Representative (QAR), provided the following: "It is acceptable to place a cold joint 
3' above grade on the piers. The government considers this to be a clarification of the 
contract requirements, it does not constitute a change to the contract and does not 
require a change to the cost or time." The response also noted that several email 
attachments were included in the response authored by Messrs. Ken McCleskey and 
Steve McCall. (R4, vol. 2, tab 30) Mr. McCleskey was the lead geotechnical engineer 
for the Dormitory 1 ATC project (tr. 2/172). Mr. McCall was the lead QAR for the 
Corps (tr. 3/54). 
9. On 11 January 2010, Mr. McCall sent an email to Mr. McCleskey requesting 
that he review RFI No. 0035 and the Corps' response (via Senior Design Engineer 
Qiang). Mr. McCall added: 
The contractor is voicing concern about the potential of 
water and mud being at the top of the concrete 5' below 
grade making it very difficult to clean off. If the concrete 
was brought to grade then the water and mud would not be 
an issue. Pat Finley said that this was a Corp detail and he 
did not want to very [sic] from it without your input. 
Mr. McCleskey replied, by email dated 14 January 2010 (9:21 am) as follows: 
I'm not sure I understand what the contractor's issue is. 
Typically, they should drill the pier, using casing to seal 
off any groundwater or sloughing materials from the walls 
of the excavation. They would then underream and 
cleanout the pier with their belling tool, and, once 
approved by us (USACE COR), install their rebar cage 
into the pier hole. Next they would place their concrete to 
near the surface. Lastly, they would seat the sonotube 
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within the uppermost part of the pier, per our detail (i.e., 
with sonotube placed within the upper 5 feet of pier to 
ensure the formed concrete at the top of the pier is 
cylindrical in shape .... 
If they use the sonotube, per the contract drawings, I see no 
reason why they can't place the pier concrete to the 
elevation indicated on the structural drawings (i.e., there 
should be no reason why they would have to stop pier 
placement below grade). 
Therefore, their requested deviation should be refused. 
(R4, vol. 2, tab 31) 
10. Mr. McCall replied via email at 1:30 pm on the same day, which read as 
follows: 
The question is how hard is it to place the sonotube once 
the casing is removed and maintain a continuous column of 
concrete in the pier without having a cold joint at the 
bottom of the sonotube, especially since the top of the 
son[ o ]tube in some cases is 8' above the dirt grade? 
Pat Finley's [the designer of record] response would leave 
us to believe that a cold joint is permissible at this point, do 
you concur with his response? If you do concur then what 
is the recommended method for cleaning the top of the 
concrete to avoid having compressible materials at the cold 
joint? 
Mr. McCleskey responded by email also on the same date, stating in pertinent part: 
There shouldn't be an issue removing the casing and 
placing the sonotube and remaining concrete. The entire 
operation of placing the concrete to near the top of the 
casing, removing the casing ... placing the sonotube, and 
completing concrete placement should take less than 30 
minutes on a typical pier. Properly done, this should be a 
*continuous* operation .... 
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So, to reiterate, I advise that we refuse the contractor's 
proposed deviation. The piers should not be constructed 
with a cold joint, and, following the typical/common 
practice drilled pier construction procedure outlined above, 
a cold joint shouldn't even come into play. 
(R4, vol. 2, tab 32) 
11. On 16 January 2010, the site was flooded due to a water main break, 
thereby delaying the project (supp. R4, vol. 10, tab 178). The record also contains 
numerous references to water at the site as an issue in the pier construction process and 
a significant number of piers that had to be drilled at least twice prior to completion 
(supp. R4, vol. 26, tabs 349-83). By email dated 18 January 2010, Mr. McCall 
communicated to Messrs. Finley and McCleskey to relay the following information: 
This e-mail is to document and confirm a conversation 
between Pat Finley and me on Friday 15 January 2010. 
The subject of the conversation was to discuss means and 
methods of installation of the son[ o ]tube extinctions [sic] 
for the piers. Pat reported that he would accept a joint in 
the columns that extend the piers to the 1st floor slab. If 
the contractor installs the son[ o ]tube to 2 or 3 feet above 
the dirt grade in the crawl space and places the concrete in 
a simultaneous pour once the pier casing is removed, this 
would avoid a cold joint below grade in the pier. This 
removes the contractor[']s constructability issues with 
having mud and water in the piers .... 
Please respond to this to voice any concerns you might 
have. 
(R4, vol. 2, tab 33) The record reflects that Mr. McCleskey had no concerns regarding 
the methods proposed in the above-mentioned email (tr. 2/214). We find that the 
Corps decision to allow the use of a cold joint at 3' above grade was reasonable. 
12. On 15 February 2010, the first piers were drilled by subcontractor 
Batten Drilling. The record reflects that Mr. McCleskey made a site visit to Lackland 
AFB to inspect the start of pier drilling operations. In his detailed memorandum for 
the record, he observed the excavation of 3 piers, designated as C-3, C-4, and D-5. 
Several issues arose including: 1) concrete slump was initially 3 inches, later 
corrected by adding water to achieve the requisite 6 inch slump (C-3); ground water 
seepage and material sloughing into the previously drilled cavity and casing placement 
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(C-4); and suspending the rebar cage by a crane during concrete placement due to over 
drilling the pier cavity (C-3 and D-5). Mr. McCleskey concluded: 
Batten Drilling appeared to be having 
difficulties, as noted 
herein, drilling and underreaming the piers on the date of 
the inspection. It is the opinion of the undersigned that 
these issues are primarily attributable to the "first day" lack 
of familiarity with the site-specific subsurface conditions. 
Drilling efficiency and pier construction processes are 
anticipated to improve as more experience is gained at the 
site. However, the issues regarding casing placement and 
withdrawal from Pier C-4 cause greater concern for the 
understanding of basic drilling principles in areas of 
known water-bearing sloughing materials.... It should be 
noted that the subsurface conditions encountered on the 
date of the inspection were very similar to those described 
in the logs of borings included in the USACE Foundation 
and Pavement Design Analysis and presented in the 
contract drawings. 
(R4, vol. 2, tab 65) 
13. On 18 March 2010, Mr. Joshua Alley, the Corps' QAR sent appellant the 
following email: 
From approximately 1630 on, the only representative of 
[appellant] in the area that the work was being performed 
was Mike Dugger, the SSHO [Site Safety and Health 
Officer]. 
Mike Dugger was performing the work of the SSHO, the 
Superintendent, and the QC. As per the terms of the 
contract, the SSHO is only to have the duties of the SSHO. 
Further, during the placement of one of the piers, I had to 
stop work before the concrete could be placed in the 
sonotube because it was visibly obvious that the sonotube 
was out of plumb. Upon checking the sonotube, I found 
that the sonotube was several inches out of plumb. I asked 
to have the pier corrected and it was brought to within the 
tolerances described in the specifications .... 
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If you intend to continue working the hours that you 
worked yesterday, then you also need to provide adequate 
Quality Control and Superintendence to ensure that the 
work being done meets the contract requirements, and to 
allow the SSHO to perform his work without interruption 
or distraction. 
(R4, vol. 3, tab 130) 
14. Appellant responded via email on 19 March 2010 indicating that several 
representatives were on site and that 
"[t]he piers in question will be checked and dealt 
with accordingly" (R4, vol. 3, tab 133). 
15. On 20 March 2010, QAR Alley forwarded via email a spreadsheet to 
appellant detailing several piers that were not plumb and were marked "Fail." He 
stated 
further: "Please examine the data and let me know when you are ready to meet 
to discuss what the next step should be." (R4, vol. 3, tab 135) 
16. By letter dated 12 May 2010, the Corps identified several deficiencies in 
the pier construction including: 
1. Piers not within tolerances for plumb or out of 
tolerance for alignment. 
2. Reinforcement inside piers does not have the 
required clearance to the surface of the concrete. 
3. Concrete in piers does not meet contract 
requirements. 
4. [H]ook bars in perimeter beam and slab were tied to 
the inside of the reinforcement cages and not 
outside as per the details[.] 
5. The required number of dowels between the Pier 
Cap in Area A and the surrounding slab has not 
been provided. 
Additionally, appellant was directed to submit proposals for the methods of evaluation 
to the Corps for review. After acceptance of the proposed testing methods, appellant 
was required to test and document the condition of all of the piers. For those piers 
found to be deficient, appellant was to submit a repair plan to the Corps for approval. 
Upon approval, appellant was further directed to treat the repair work as "a new 
feature of work, and will require a full preparatory meeting, initial inspection, and 
follow-up inspections." Finally, in addition to indicating that appellant's quality 
12 
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control had been lacking, the Corps concluded that appellant's performance had been 
unsatisfactory. (R4, vol. 3, tab 149) 
17. By letter dated 19 May 2010, appellant replied to the Corps' 12 May 2010 
letter indicating that it had taken immediate action on the issues. First, appellant fired 
its structural quality control inspector "due to a systemic failure of enforcing the 
appropriate quality control measure required for this project." Appellant reported that 
it was bringing on a new QC inspector with significant experience as well as using the 
general superintendent to "take an active and increased role to monitor and control the 
quality control department." With regard to the other issues, pier plumbness and 
location, underground pier plumbness, poor concrete, pier rebar cover and length, open 
piers, and other problems, appellant proposed a "MOVE FORWARD PLAN" as 
follows: 
1. Refine method to identify and fix deficient issues. 
a. Utilizing the pachometer we will 
1) Locate rebar depth, top and bottom at 
above grade pier extension 
2) Locate top of pier cage reinforcing 
b. Core and perform penetration test (Windsor 
Probe) on a sampling of pier extensions as 
identified by our third party engineer to 
verify concrete strength 
c. Excavate 5' below grade at piers Jll, F12 and 
K 10 identified by our third party engineer to 
inspect and test below grade concrete. 
2. Submit identification and fix process to USACE for 
approval. 
3. Proceed with identification and fix. 
(R4, vol. 3, tab 150) Based upon the foregoing, we find that appellant did not employ 
the appropriate quality control measures at the site. 
18. On 25 May 2010, the Corps informed appellant that it's proposed QC 
representative's personnel qualifications had not been received and that until a new 
structural QC qualified per Specification § 01 45 01 had been submitted and approved, 
no further work on "structural functions" of the project may proceed. The Corps 
further noted that the requirement for maintaining documentation was also not being 
met. (R4, vol. 3, tab 151) 
19. By letter dated 14 July 2010 appellant advised that it had retained 
Mr. Edward Ulrich, P.E., to assist with the resolution of the foundation construction 
13 

issues. Appellant conveyed Mr. Ulrich's findings that "most of the conditions 
observed in the piers are inherent in the USACE's design and instructions and its 
denial of Balfour/S&P's request to modify the design in RFI 0035, and as such, could 
not reasonably have been avoided under the circumstances." Thus, appellant put the 
Corps on notice that it was reserving its rights with regard to all costs and schedule 
delays associated with the foundation repairs. (R4, vol. 4, tab 152, attach. 11) 
20. The record reflects that the defective piers were identified and repairs were 
commenced (supp. R4, vol. 26, tab 383 at 10176). The parties attempted to resolve the 
issues, which culminated in a handwritten settlement agreement dated 6 May 2011. 
This agreement, which was signed by appellant and the Corps, was 
"Subject to 
Availability of Funds." (Supp. R4, vol. 40, tab 776) However, it was later determined 
that funding was not available for the entire amount (tr. 5/51). The parties reentered 
into negotiations and, on 17 June 2011, settled other issues via Modification 
No. P00032, while reserving the pier claim (supp. R4, vol. 38, tab 6). 
21. On 19 September 2011, appellant filed a claim with the contracting officer 
(CO) in the amount of $4,769,979 which appellant believed it was due because of "the 
Government's defective pier design and ensuing constructive changes to Balfour 
Beatty/S&P's contractual obligations with respect to the piers both during the original 
pier construction and the repair of conditions that the Government considered 
defective" (R4, vol. 4, tab 152). 
22. By letter dated 6 December 2011, the CO informed appellant that she had 
received the claim and expected to issue a decision on or before 28 February 2012 
(notice of appeal, ex. 1 ). 
23. By letter dated 4 April 2012 appellant filed a 
notice of appeal with the 
Board on a deemed denial basis, due to the CO' s failure to issue a final decision on the 
aforementioned claim by 28 February 2012. The appeal was docketed as ASBCA 
No. 58067. 
24. At the hearing, appellant offered the expert testimony of Mr. Edward Ulrich, P.E. 
He was qualified without objection as an expert in soil mechanics and foundation 
engineering with a special expertise in drilled piers (tr. 1/60). He opined that the pier 
sonotube detail shown in the project drawings was not buildable in one continuous pour 
without a cold joint below the ground surface under the conditions of water and mud behind 
the temporary casings. Also, he concluded that the Corps improperly rejected the use of a 
crane to position the rebar during the process of pouring the concrete piers. This refusal, he 
concluded, created many of the issues uncovered. (Supp. R4, vol. 40, tab 775) 
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25. The government offered expert testimony* of Robert Brehm, Ph.D., P.E., 
Chief Executive Officer of Construction Analysts, LLC (CA), a construction 
management and consulting firm (supp. R4, vol. 39, tab 711). Dr. Brehm has over 40 
years of experience in construction engineering including private industry and 
academia (tr. 6/22). Appellant objected to his qualifications as an expert, contending 
"[ s ]imply being a civil engineer or having years of construction management 
experience does not give him the necessary expertise or qualifications to give opinions 
on the drilled pier issues that are involved in this case" (tr. 6/21 ). The Corps countered 
that Dr. Brehm has extensive experience in the construction industry and has taught 
the concepts that are being applied by people working in the industry who apply those 
same means and methods 
he teaches in the classroom. The Board, upon consideration 
of the depth and breadth of construction experience, allowed Dr. Brehm to offer expert 
testimony in the instant appeal (tr. 6/23). 
26. Dr. Brehm offered the following summary of opinions and conclusions in 
pertinent part: 
1. CA opines that the design requirements established 
by the USACE in the contract documents are 
consistent with 
standard industry practice and 
buildable in the geotechnical conditions at Lackland 
Air Force Base, San Antonio, Texas. 
Further, he concludes that appellant "failed to perform the work on the drilled concrete 
caisson piers in reasonable conformance with the contract documents and 
demonstrated a lack of quality control to ensure compliance as required by the contract 
documents and standard industry practice. (Supp. R4, vol. 39, tab 711) With regard to 
the issue of the allowance of a cold joint, he testified that a monolithic pour would 
have flushed out the contaminants from the concrete due to the fact that the concrete 
used was denser than the water. As the concrete was pumped into the pier cavity, the 
heavier concrete would essentially cause the water to rise to the top and ultimately 
flushed out at the top (see tr. 6/30-33). Moreover, with regard to using a crane to 
stabilize the rebar cage he testified that it is not industry practice to hold the rebar cage 
to ensure vertical alignment while concrete is being placed. He further added that the 
lack of concrete coverage around the rebar cage was more than likely due to the failure 
to maintain the plumbness of the cage resulting from improperly installed spacers. 
(Tr. 6/43) We find this testimony persuasive. 
*The government also offered Mr. William Manginelli as an expert in delay analysis 
(tr. 4/129). As this decision denies the appeal in its entirety, the Board need not 
consider his testimony in relation to the instant appeal. 
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27. Based on the facts in the record, as presented at the hearing and Mr. 
Ulrich's lack of analysis contained in his report, we find that Mr. Ulrich's testimony 
was not as persuasive as that of Dr. Brehm. 
DECISION 
Both parties acknowledge that several of the piers were defective and not 
compliant with the contract specifications. However, the parties disagree as to which 
bears responsibility for these defects and ultimately should bear the cost burden of the 
subsequent repairs. Under the applicable contract clause (finding 3), the contractor is 
liable for defects in workmanship, unless the deficiencies were caused by defects in 
government-furnished materials or design. 
Appellant contends that the government restricted its means and methods of 
completing the work according to the specifications contained in the contract. 
Specifically, appellant avers: (1) despite the contract allowing cold joints in the pier 
installation (Section 31 63 26, Drilled Caissons, Part 3 .2(b) ), the government arbitrarily 
did not permit cold joints; (2) the government's decision to bar appellant from stabilizing 
the rebar cages with cranes during the concrete pour operations caused misalignment of 
the rebar cages and poor concrete coverage on the completed piers; and (3) the 
government's prohibition on relief hole excavations to expunge contaminates from the 
piers prior to placing the sonotubes contributed to the poor concrete in the pier extensions. 
Additionally, appellant argues that the government did not prove that appellant's faulty 
workmanship or lack of quality control caused the pier defects. (App. br. at 30-37) 
The government contends, inter alia, that appellant failed to comply with many 
of the contract requirements, including: (1) failure to control water at the site; 
(2) pre-drilling several of the piers in violation of the express provisions to the 
contrary; (3) installing rebar cages that did not extend the full depth of the drilled pier; 
( 4) the usage of plastic wheels as spacers on the rebar cages rather than concrete sleds 
they proposed and the Corps accepted, and these plastic spacers broke off or bent 
during the placement of the rebar cages inside the piers thus failing to keep the cages 
plumb and the requisite 3 inches away from the side of the pier; ( 4) failure to flush 
contaminants (soil and/or water) out of the pier concrete properly; (5) misplaced 
dowels outside of the rebar cage rather than within the cages in accordance with the 
contract requirements; and (6) failure to ensure proper quality control over the pier 
excavations and concrete placement. (Gov't br. passim) 
It is well settled that when government plans or specifications specify, in design 
detail, the precise manner or method of performance, the government impliedly 
warrants a satisfactory performance result ifthe plans and specifications are followed. 
United States v. Spearin, 248 U.S. 132 (1918). This implied warranty, however, only 
16 

runs to contractors that comply with the plans and specifications. Al Johnson 
Construction Co. v. United States, 854 F.2d 467, 469 (Fed. Cir. 1988). As the 
claimant, the burden is on the contractor to prove that it complied with the plans and 
specifications and that despite compliance, defective work resulted. Mae con, Inc., 
ASBCA No. 31081, 89-2 BCA iJ 21,855 at 109,945. 
Here the record shows numerous instances of QC failures and we found that 
appellant failed to maintain an adequate quality control system (finding 17). Moreover, 
appellant did not comply with the plans and specifications, particularly with regard to 
the rebar cage, thus creating piers out of plumb and the rebar not properly aligned 
within the concrete (finding 6). With regard to the contract interpretation issue 
regarding the use of a cold joint, we found that the government's engineering concerns 
and ultimately allowing a cold joint above grade were reasonable (finding 11). 
Moreover, the government's expert gave a more plausible reason for the pier defaults 
that we found persuasive (finding 27). Thus appellant failed to meet its burden to prove 
that the defects were due to the government's plans and specifications and/or actions. 
· In light of our decision we need not consider appellant's claim for a time 
extension due to government-caused delay. 
CONCLUSION 
Accordingly, the appeal is denied. 
Dated: 1 September 2015 
I concur 
0 
Administrative Judge 
Armed Services Board 
of Contract Appeals 
I concur 
4. : ~ 5----~.L-------'---------
MARK. N. STEMPL~ RICHARD SHACKLEFORD 
Administrative Judge Administrative Judge 
Acting Chairman Vice Chairman 
Armed Services Board Armed Services Board 
of Contract Appeals of Contract Appeals 
17 

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. 58067, Appeal of 
Balfour/S&P Two, A Joint Venture, rendered in conformance with the Board's 
Charter. 
Dated: 
18 
JEFFREY D. GARDIN 
Recorder, Armed Services 
Board of Contract Appeals