CDM Constructors, Inc.
Docket: ASBCA 61074
Decision date: 2018-08-20

ARMED SERVICES BOARD OF CONTRACT APPEALS 
Appeal of -- ) 
) 
CDM Constructors, Inc. ) 
) 
Under Contract No. W912HN-15-C-OO 15 ) 
APPEARANCES FOR THE APPELLANT: 
APPEARANCES FOR THE GOVERNMENT: 
ASBCA No. 61074 
John T. Flynn, Esq. 
Joseph J. Minock, Esq. 
Weinberg, Wheeler, Hudgins, 
Gunn & Dial, LLC 
Atlanta, GA 
Michael P. Goodman, Esq. 
Engineer Chief Trial Attorney 
Laura J. Arnett, Esq. 
Engineer Trial Attorney 
U.S. Army Engineer District, Savannah 
. OPINION BY ADMINISTRATIVE JUDGE O'SULLIVAN ON 
THE GOVERNMENT'S MOTION FOR SUMMARY JUDGMENT 
CDM Constructors, Inc. (CDM) appeals a contracting officer's (CO's) final 
decision denying its claim for $3,157,098.58 in increased costs of performing a 
contract for the construction of dissolved oxygen injection systems at two locations on 
the Savannah River. CDM claims that the increased costs were the result of a 
suspension of work from August 14, 2015 to October 14, 2015, pursuant to a bid 
protest ultimately decided in the government's favor. The government moves for 
summary judgment on the grounds that ( 1) CDM cannot establish that the delay was 
unreasonable, which is a requirement for recovery under the Suspension of Work 
clause, and (2) in any event, CDM's claimed damages were not caused by the 
suspension. CDM opposes on the ground that there are genuine issues of law and fact 
regarding both the reasonableness of the suspension and the proximate cause of 
CDM's damages. We grant the motion for the reasons discussed below. 
STATEMENT OF FACTS FOR PURPOSES OF THE MOTION 
Contract No. W912HN-15-C-0015 (the contract) was awarded to CDM on 
July 31, 2015, by the U.S. Army Corps of Engineers, Savannah District (Corps). The 
contract, totaling $99,675,591, called for the construction of the Savannah Harbor 
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Expansion Project Dissolved Oxygen Injection System (DO project). (Gov't SMF 
,r 45)1 
On August 14, 2015, the Corps notified CDM that a protest had been filed with 
the Government Accountability Office (GAO). The notice further advised CDM as 
follows: 
Please be advised that in accordance with 31 U.S.C. 
§ 3553(d), 4 C.F.R. § 21.6, and FAR 33.104(c), 
performance of the contract is suspended, pending 
resolution of the protest. Do not begin performance until 
authorized to do so by the Contracting Officer. 
(R4, tab 9 at 3) On October 8, 2015, the GAO denied the protest. On October 14, 
2015, the Corps lifted the suspension, and on October 21, 2015, at the 
pre-construction meeting, the Corps issued the notice to proceed (NTP) (gov't SMF 
,r,r 69, 71, 74). 
On December 21, 2015, CDM notified the Corps that the protest delay had 
caused its contemplated marine construction subcontractor, Cape Romain, to 
withdraw (R4, tab 17). As a result, CDM stated, it had resumed discussions with 
· other marine contractors who offered both higher pricing and more extended 
schedules than Cape Romain had proposed (and on which CDM had based its 
proposal) (id.). The certified claim eventually submitted by CDM to the Corps on 
June 27, 2016, claimed increased costs in the amount of $3,157,098.58, allegedly 
caused by the protest suspension described above (R4, tab 18). CDM's claim was 
denied by the Corps on December 2, 2016, and CDM thereafter timely filed an appeal 
to the Board which was docketed on February 27, 2017. 
The contract contained both the Federal Acquisition Regulation (FAR) 52.242-14, 
SUSPENSION OF WORK (APR 1984 ); and FAR 52.233-3, PROTEST AFTER A WARD (AUG 
1996) clauses. The Suspension of Work clause provided, in relevant part: 
(a) The Contracting Officer may order the Contractor, in writing, 
to suspend, delay, or interrupt all or any part of the work of this 
contract for the period of time that the Contracting Officer 
determines appropriate for the convenience of the Government. 
(b) If the performance of all or any part of the work is, for an 
unreasonable period of time, suspended, delayed, or interrupted 
1 All references herein to statements of material fact are to undisputed facts unless 
otherwise noted. 
2 
f 
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( 1) by an act of the Contracting Officer in the administration of 
this contract, or (2) by the Contracting Officer's failure to act 
within the time specified by this contract ( or within a reasonable 
time if not specified), an adjustment shall be made for any 
increase in the cost of performance of this contract ( excluding 
profit) necessarily caused by the unreasonable suspension, delay, 
or interruption, and the contract modified in writing accordingly. 
(R4, tab 8 at 148-49) 
The Protest after Award clause provided, in relevant part: 
(a) Upon receipt ofa notice of protest (as defined in FAR 33.101) 
or a determination that a protest is likely (see FAR 33.102(d)), the 
Contracting Officer may, by written order to the Contractor, direct 
the Contractor to stop performance of the work called for by this 
contract. The order shall be specifically identified as a stop-work 
order issued under this clause. Upon receipt of the order;the 
Contractor shall immediately comply with its terms and take all 
reasonable steps to minimize the incurrence of costs allocable to 
the work covered by the order during the period of work stoppage. 
Upon receipt of the final decision in the protest, the Contracting 
Officer shall either--
( 1) Cancel the stop-work order; or 
(2) Terminate the work covered by the order as provided in the 
Default, or the Termination for Convenience of the Government, 
clause of this contract, 
(b) If a stop-work order issued under this clause is cancelled 
either before or after a final decision in the protest, the 
Contractor shall resume work. The Contracting Officer shall 
make an equitable adjustment in the delivery schedule or contract 
price, or both, and the contract shall be modified, in writing, 
accordingly, if--
( 1) The stop-work order results in an increase in the time 
required for, or in the Contractor's cost properly allocable to, the 
performance of any part of this contract .... 
(R4, tab 8 at 137-38) 
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On October 6, 2014, CDM entered into a teaming agreement with Ballard Marine 
Construction for marine construction services on the DO project (gov't SMF ,r 5). The 
teaming agreement set forth the parties' agreement to "exert their respective best efforts 
to produce and timely submit the jointly prepared Response to the RFP which is 
intended to cause the selection of CDM Smithl2l as the prime contractor and Ballard as 
an exclusive marine construction sub-contractor to perform the Project for the 
Owner" (id. ,r 6). 
CDM stated in its proposal that Ballard "will provide support of the in-water portion 
of the dissolved oxygen injection systems and associated ancillary work of the project" 
which could include, but was not limited to, "installing conveyance piping and associated 
items, installing Speece cones and diffusers, and conducting associated activities 
underwater (e.g. welding)" (R4, tab 4 at 585). Mr. Robert Gilbert, CDM's south regional 
operations manager, testified that this scope of work was only a portion of the entire 
marine construction scope of work on the DO project (app. resp., ex. 1 (Gilbert Deposition) 
at 12-13). Ballard was featured prominently in CDM's proposal for the DO project in both 
CDM' s small business subcontracting plan, which noted that Ballard was both a small 
business and a woman-owned small business that would be performing "a significant 
portion of the effort," and CDM's past performance submission, which included a total of 
five projects, two of which were Ballard projects. CDM's proposal also included the 
teaming agreement between Ballard and CDM. (Gov't SMF ,r,r 14, 16, 21) 
CDM solicited proposals from several prospective subcontractors for the 
following scopes of work: 
02-2600 
02-4570 
02-4580 
02-4750 
Marine Construction Subcontract 
Steel H Pile Subcontract 
Helical Piling Subcontract 
Steel Sheet Piling Subcontract 
(Gov't SMF ,r 10) On February 20, 2015, Ballard submitted to CDM a proposal for all 
bid items under the marine construction subcontract (02-2600) and the helical piling 
subcontract (02-4580) (id. ,r 11). After being informed that its prices were too high, 
Ballard resubmitted its proposal on February 22, 2015 (id. ,r 12). However, CDM did 
not use Ballard's pricing for subcontract (02-2600) marine construction work in its 
final proposal revision submitted on May 27, 2015. Rather, it used pricing that it 
received from Cape Romain on or about May 18, 20_15, plus some of its own 
estimates, for the entire scope of the marine construction work. (Id. ,r 34) Mr. Gilbert 
testified that it was CDM's intention to go back to Ballard "and attempt to negotiate a 
2 Documents in the record tend to refer to CDM Smith and CDM Constructors 
interchangeably (see, e.g., R4, tab 17, claim letter). The Board infers that CDM 
Constructors is a subsidiary of CDM Smith. 
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price that would be equal to the price that we submitted in our bid and then utilize 
them" (id. 1 98). 
Prior to award of the DO project to CDM on July 31, 2015, Cape Romain 
submitted a bid in the amount of $38,500,000 for a South Carolina Ports Authority 
(SCPA) project to construct the Wando Welsh Terminal. On July 31, 2015, Cape Romain 
was the apparent low bidder on the SCPA project. (Gov't SMF 1146-48) From February 
through July of 2015, Cape Romain had picked up approximately $53 million in ongoing 
work (id. 1149-50). Due to the volume of ongoing work coupled with the award of the 
SCPA project, Cape Romain solicited no new work after July 31, 2015 (id., 103). 
Following award of the DO project on July 31, 2015, CDM promptly contacted 
Ballard but did not contact Cape Romain, despite the fact that Cape Romain's proposal 
was good for only 90 days and expired on August 16, 2015. CDM admits that it did 
not contact Cape Romain prior to the protest suspension on August 14, 2015, and that 
it did not contact Cape Romain after the protest suspension to request that the proposal 
expiration date be extended. (App. resp. at 33) CDM states that it did not contact 
Cape Romain after the August 14th protest suspension because of the government's 
instruction to stop work on the contract (id.), but offers no explanation for its failure to 
contact Cape Romain prior to the protest suspension. The first contact between CDM 
and Cape Romain following award of the DO project was on August 28, 2015, when 
Cape Romain's president, Andrew DuPre, emailed CDM to congratulate them on the 
award and said, "I am assuming since I have not heard from you that you will not be 
utilizing Cape Romain." (Gov't SMF 164) CDM's lead estimator, Chad Barker, 
responded: "Job is under protest. We are in hold. Not able to say more than that now. 
We will be in touch." (App. resp., ex. 3) 
Once the protest suspension was lifted on October 14, 2015, CDM still did not 
contact Cape Romain to offer it a subcontract for any portion of the contract scope of 
work. Cape Romain's president testified: 
Q: Did CDM ever contact you in October, November, 
December 2015 and ask Cape Romain to perform 
portions of the scope that they had proposed to attempt 
to negotiate a smaller subcontract than the scope that 
Cape Romain had bid? 
A: Not to my knowledge. 
(Gov't SMF, 110) Cape Romain informed CDM by email on October 20, 2015, that it 
would not be attending the pre-construction meeting on the DO project due to its 
workload, adding that "our availability stinks for awhile" (id., 72). When CDM 
nevertheless contacted Cape Romain via email on December 3, 2015, to ask it to review 
its pricing for any updates and to inform it that the start date for its subcontracted scope 
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of work would be approximately March/ April of 2016, Cape Romain replied that it had 
previously informed CDM in October 2015 that its availability to work on the DO 
project was "terrible" and that it was fully booked with work until the fall of 2016 
(app. resp., ex. 4). Thereafter, on December 18, 2015, CDM informed the government 
that Cape Romain had "pulled its bid" (gov't SMF ,i 76). 
On June 27, 2016, CDM submitted a certified claim seeking compensation in the 
amount of$3,157,098.58 for alleged increased costs as a result of the protest suspension 
(R4, tab 18). CDM asserted in its claim that "Cape Romain would not execute a 
subcontract with CDM" after the protest suspension was lifted because "it had been 
economically forced to pursue other opportunities rather than continue to remain idle 
during the indefinite suspension imposed by the Corps" (id. at 1027). As a result, CDM 
stated, it "was forced to reprocure the [Steel H Pile and Marine Construction] subcontract 
packages from two new subcontractors-Ballard [Marine Construction] and [The 
Industrial Company, Inc.] TIC" (id. at 1029). CDM's claim was denied by a CO's final 
decision dated December 2, 2016 (R4, tab 2). CDM timely filed a notice of appeal to the 
Board on February 24, 2017. 
DISCUSSION 
Summary judgment will be granted if a moving party has shown that there are 
no genuine issues of material fact and it is entitled to judgment as a matter of law. 
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A non-movant seeking to defeat 
summary judgment by suggesting conflicting facts must set forth specific facts 
showing that there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 4 77 
U.S. 242,248 (1986); Mingus Constructors, Inc. v. United States, 812 F.2d 1387, 1390 
(Fed. Cir. 1987). A genuine issue of material fact is one that is outcome determinative. 
Liberty Lobby, 477 U.S. at 247-48. If the non-moving party carries the burden of 
proof at trial for elements of its case and fails to provide such proof, the moving party 
is entitled to summary judgment. Dairyland Power Coop. v. United States, 16 F .3d 
1197, 1202 (Fed. Cir. 1994). In deciding summary judgment motions we draw all 
reasonable inferences in favor of the non-movant; we do not resolve controversies, 
weigh evidence, or make credibility determinations. Liberty Lobby, 477 U.S. at 255. 
Contentions of the Parties 
The government advances two grounds in support of summary judgment. First, 
with respect to any liability it may have under the Suspension of Work clause, it 
asserts that CDM cannot prove that a suspension of approximately 60 days to resolve a 
GAO bid protest was anything but reasonable under the circumstances. However, it 
continues, should the Board be disinclined to rule summarily in the government's 
favor on the reasonableness of the suspension, the undisputed material facts 
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demonstrate that there was no causal nexus between the suspension and CDM' s 
increased costs. 
CDM, for its part, argues that the government is not entitled to a ruling that the 
suspension was reasonable "as a matter of law," and that CDM should not be foreclosed 
from an opportunity to show at trial that the suspension was unreasonable, under the 
particular circumstances of this case, as to at least part of the work (app. opp'n at 3). 
CDM further points to the Protest after Award clause, which specifically provides for a 
contractor to recover its increased costs caused by a protest suspension without any 
reference to whether the suspension was or was not reasonable (id. at 4 n.l). Finally, 
CDM asserts that material facts are in dispute with regard to the issue of causation, 
specifically, whether the suspension caused CDM to have to re-procure marine 
construction services from companies other than Cape Romain ( id. at 7-14 ). 
Reasonableness of the Suspension 
We note that CDM has offered up no evidence from which we could infer that 
the suspension of work during the pendency of a GAO bid protest was unreasonable. 3 
Since CDM bears the burden of proof on this issue at trial, its failure to proffer 
evidence of unreasonableness entitles the government to summary judgment on this 
issue. Dairyland, 16 F.3d at 1202. However, the Board must still consider CDM's 
claim under the Protest after Award clause, under which there is no requirement that 
the suspension be found unreasonable. The CO explicitly cited FAR Part 33 as the 
authority for the stop-work order (R4, tab 9). Under this clause, the issue that governs 
CDM's ability to recover on its claim is the issue of causation, to which we now tum. 
Is there a Genuine Issue for Trial on Whether CDM's Increased Costs of Performance 
were Caused by the Protest Suspension? 
With respect to causation, the government has offered up five reasons why, in its 
view, CDM cannot establish that the suspension of work caused it to lose Cape Romain 
as a subcontractor: ( 1) Cape Romain declined to enter into a subcontract with CDM 
because it was too busy with work it had picked up before the protest suspension; 
(2) CDM had a conditional proposal but no firm commitment from Cape Romain; 
(3) CDM's teaming agreement with Ballard Marine and its proposal to the Corps do not 
support its assertion that it intended to use Cape Romain for marine construction work; 
( 4) CDM did not use pricing from Cape Romain for the H Pile work; and ( 5) CDM did 
3 CDM argues that the suspension was unreasonable because it prevented CDM from 
finalizing subcontracts for millions of dollars worth of work, ultimately 
resulting in the withdrawal of Cape Romain (app. opp'n at 5-6). This is not 
evidence, only argument. Moreover, it begs the causation issue. 
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not attempt to subcontract work to Cape Romain after the contract was awarded (gov't 
mot. at 27). These five reasons overlap to a certain degree. 
The parties disagree as to all five reasons proffered by the government and 
particularly as to: (1) whether CDM actually intended to use Cape Romain as a major 
subcontractor for the marine construction scope of work; and (2) whether Cape Romain 
could and would have performed both the work it had acquired before the protest 
suspension and its part of the DO project simultaneously. However, two material facts 
are undisputed: (1) Cape Romain stopped soliciting new work after July 31, 2015, due 
to the volume of work it bad acquired up to and including that date; and (2) CDM did 
not try to contact Cape Romain after award of the DO project, either to enter into a 
subcontract, or to ask it to extend its proposal beyond the August 16, 2015 expiration 
date. 
The question of whether Cape Romain would have had the capacity to 
simultaneously perform both its scope on the DO project and its other work, including 
the $38 million SCPA project, is the subject of various statements by Cape Romain's 
owner, Mr. DuPre, that CDM argues are in conflict. For instance, in a March 2017 
affidavit, Mr. DuPre states that Cape Romain could and would have performed the 
DO project and the SCPAproject simultaneously ifCDM had offered Cape Romain a 
subcontract on or before August 24, 2015.4 (Gov't SMF ,i 101) However, Cape Romain 
provided to the government a later affidavit executed by Mr. DuPre in which he 
identified all of Cape Romain's pending work as of August 1, 2015, and stated that 
Cape Romain could not have accommodated the DO project if CDM had offered 
Cape Romain a subcontract in August of 2015. During his deposition on October 18, 
2015, Mr. DuPre testified that if CDM had offered Cape Romain a subcontract "within 
the time frame of the proposal" (i.e., by August 16, 2015), Cape Romain would have 
"moved forward in some capacity ... depending on the scope of what they [CDM] 
wanted." (Gov't SMF ,i,i 102-05) 
While we would draw all reasonable inferences from any irreconcilable 
conflicts in Mr. DuPre's testimony in favor of the non-moving party, CDM, we do not 
ultimately find the actual disputed facts to be material, i.e., outcome-determinative. 
Whether Cape Romain would have entered into a subcontract with CDM if CDM had 
offered one, either by August 16 or August 24, 2015, is pure speculation because 
CDM never offered Cape Romain a subcontract, either in August, September, October, 
or November 2015. Nor did CDM ask Cape Romain to extend its proposal expiration 
date, either before or after the protest suspension issued. 5 
4 In its statement of undisputed material facts the government says the March 201 7 
affidavit was prepared by counsel for CDM. CDM does not dispute this. 
5 We do not find CDM's purported interpretation of the government's stop-work order 
as prohibiting it from securing its subcontractors to be reasonable. But, even if it 
8 

Similarly, one could construe Mr. DuPre's statement in the March 2017 
affidavit that, by the time the stop work was lifted on October 14, 2015, Cape Romain 
had obtained enough other work that it was too busy to be able to move forward with 
the DO project (gov't SMF 1 101) to be in conflict with his deposition testimony that 
the protest did not affect Cape Romain's ability to perform the DO project (id. 1 111) 
and that Cape Romain stopped seeking new work after July 31, 2015, when it was the 
apparent low bidder on the SCPA project (id. 1103). However, the two statements are 
not clearly in opposition, and in light of the undisputed fact that Cape Romain stopped 
soliciting new work after July 31, 2015, it seems clear that the August 14, 2015, 
protest suspension did not cause Cape Romain to have too much work to take on the 
DO project-because it already had too much work to do so. 
Finally, we view the dispute with respect to whether CDM actually intended to 
use Cape Romain as its marine construction subcontractor as non-material. Certainly, 
CDM witnesses have testified that they intended to use Ballard Marine for at least part 
of the marine construction work (that is, if they were able to negotiate Ballard Marine 
down to Cape Romain's prices). But the issue of CDM's intent does not directly affect 
the issue of causation that is before us, and therefore is not outcome-determinative. 
At trial, CDM would have the burden of proof to show that the protest 
suspension was the proximate cause of Cape Romain's unavailability. Thus, it was 
incumbent on CDM to provide its proof of causation to the Board in opposition to the 
government's motion for summary judgment. Dairyland, 16 F.3d at 1202. 
On the record presented to us, we do not see how the proximate causes of 
Cape Romain's unavailability to perform marine construction work on the DO project 
can be anything other than a combination of the volume of work Cape Romain had or 
would acquire by July 31, 2015, and CDM's failure to secure Cape Romain as a 
subcontractor, or at least an extension of Cape Romain's proposal, in a timely manner. 
CDM exerted no effort in Cape Romain's direction before the suspension or during the 
suspension. Even after the suspension was lifted and despite a number of signals 
coming from Cape Romain indicating its likely unavailability due to its workload, 
CDM displayed no sense of urgency with respect to Cape Romain. 
CDM's manifest failure to act to secure Cape Romain is not in dispute, and in 
combination with the amount of work on Cape Romain's plate by July 31, 2015, is the 
primary, if not the sole, cause of Cape Romain's ultimate unavailability to perform work 
were, it does not explain CDM's conceded failure to act to secure Cape Romain's 
services or at least an extension of its proposal following award of the DO project 
and before the suspension issued. 
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on the DO project. This forecloses the possibility that CDM could prove at trial that 
Cape Romain's unavailability was caused by the protest suspension. 
CONCLUSION 
The government's motion for summary judgment is granted. The appeal is 
denied. 
Dated: August 20, 2018 
I concur 
RICHARD SHACKLEFORD 
Administrative Judge 
Acting Chairman 
Armed Services Board 
of Contract Appeals 
L YOOT.0SULLIVAN 
Administrative Judge 
Armed Services Board 
of Contract Appeals 
I concur 
OWEN C. WILSON 
Administrative Judge 
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. 61074, Appeal ofCDM 
Constructors, Inc., rendered in conformance with the Board's Charter. 
Dated: 
10 
JEFFREY D. GARDIN 
Recorder, Armed Services 
Board of Contract Appeals 
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