Strand Hunt Constructions, Inc.
Docket: ASBCA 55904
Decision date: 2012-06-21

ARMED SERVICES BOARD OF CONTRACT APPEALS 
Appeal of -- ) 
) 
Strand Hunt Construction, Inc. ) ASBCA No. 55904 
) 
Under Contract No. DACA85-03-C-0007 ) 
APPEARANCE FOR THE APPELLANT: James F. Nagle, Esq. 
Oles Morrison Rinker & Baker, LLP 
Seattle, WA 
APPEARANCES FOR THE GOVERNMENT: Thomas H. Gourlay, Jr., Esq. 
Engineer Chief Trial Attorney 
Anne L. Burman, Esq. 
Engineer Trial Attorney 
U.S. Army Engineer District, 
Alaska 
OPINION BY ADMINISTRATIVE JUDGE PAUL 
PURSUANT TO BOARD RULE 11 
This is a timely appeal of a contracting officer's (CO) decision denying appellant 
Strand Hunt Construction, Inc.'s (SHCI) claim in an amount of$2,447,453. The Contract 
·Disputes Act (CDA), 41 U.S.C. -§§ 7101-7109 is applicable; and the parties have opted to 
submit the appeal on the record pursuant to Board Rule 11. We deny the appeal. 
FINDINGS OF FACTI 
1. On 30 Apri12003, the United States Army Corps of Engineers (Corps) entered 
into fixed-price Contract No. DACA85-03-C-0007 with SHCI for the design and 
construction of emission reduction baghouse facilities to support the coal-fired power 
plant (CHPP)at Eielson Air Force Base (AFB) in Fairbanks, Alaska. The face amount of 
the contract was $21,719,361. (R4, tab 1 at 1, 6, tab 40 at 133-34) 
1 In a decision promulgated on 23 January 2009, 09-1 BCA , 34,059, the Board 
denied the parties' cross-motions for sunlmary judgment. Familiarity with that 
decision is presumed. 

2. The contract contained several standard FAR provisions, including FAR 
52.233-1, DISPUTES (JUL 2002); FAR 52.243-4, CHANGES (AUG 1987); FAR 52.236-2, 
DIFFERING SITE CONDITIONS (APR 1984); FAR 52.236-3, SITE INVESTIGATION AND 
CONDITIONS AFFECTING THE WORK (APR 1984); and FAR 52.236-13, ACCIDENT 
PREVENTION (Nov 1991) (R4, tabs 30-34). 
3. The contract also contained a "GENERAL REQUIREMENTS" division. 
Subsection 1.3, "INTENT" of section 01010, "DESIGN REQUIREMENTS" stated, in part: 
The government seeks a fully operati.onal emissions reduction . 
system designed to reduce particulate emission via filtration 
for each of six EielsoJ). CHPP so as to comply with all 
applicable air quality discharge regulations. These systems' 
shall be complete, useable, free of defects, and compatible 
with the existing CHPP systems. These systems shall be 
designed so as to be capable of being maintained and 
operating during all seasons (including winter at -51 degrees 
F and summer at 90 degrees F). In addition to . providing 
emission reduction systems, the ash collection, c01)veying, 
storage, and a~h truck loading systems shall be designed to 
have redundant capacity; to be constructed of high quality . 
materials and equipment, and shall be easily maintained. 
(R4, tab 40 at 5) Key elements of the equipment to be installed were the induced draft 
fans which were treated in section 11215 of the specifications. Subsection 1.5.c., "Indoor 
Design Criteria," provided: 
1) Noise in control room, offices, etc. (dBA maximum): 
OSHA 
2) Temperature (Filtration Buildings): 
(1) Minimum: 50 degrees F 
(2) Maximum: 20 degrees F above ambient 
In addition subsection 1.5.d. stated: 
d. Current CHPP Building Indoor Temperatures: 
1) Minimum: 50 degrees F 
2) Maximum: 90 degrees F 
. (R4, tab 42 at 6) (emphasis added) These temperatures were also stated in subsections 
1.4.c. and d. "DESIGN CRITERIA," of section 11500 of the specifications which was 
2 


entitled, "BAGHOUSE COLLECTOR SYSTEM" (R4, tab 43 at 6-7). Finally, the 
temperatures w~re also provided in subsections c. and d. of subsection 1.5, "DESIGN 
CRITERIA," which were contained in section 11700, "ASH CONVEYING SYSTEM," of 
the specifications (R4, tab 44 at 8). 
4. Various other specifications described the temperature ranges which SHCI 
could expect to encounter in the CHPP. For example, subsection 2.4.3 of section 07900 
specified the characteristics of the preformed sealants to be applied by SHCI in the 
baghouses as follows: . 
Preformed sealant shall be polybutylene or isoprene-butylene 
based pressure sensitive weather resistant tape or bead sealant 
capable of se'aling out moisture, air and dust when installed as 
recommended by the manufacturer. At temperatures from 
minus 30 to plus 160 degrees F, the sealant shall be 
non-bleeding and shall have no loss of adhesion. 
(Supp. R4, tab 79) With respect to the instruments and controls for the baghouse 
systems, subsection 2.4.1.1 of section 13405 stated the general requirements for the 
Programmable Logic Controllers (PLCs) in these terms: 
PLCs shall be micro-processor based, capable of receiving 
discrete and analog inputs and, through programming, shall 
be able to control discrete and analog output fu11-ctions, 
perform \data handling operations and communicate with 
external devices. PLCs shall meet the requirements of Class 
A computing devices, and shall be labeled as set forth in 47 
CFR 15 and shall be able to withstand conducted 
susceptibility test as outlined in NEMA I CS I, NEMA I CS 2, 
NEMA ICS 3, or IEEE C37.90.1. PLCs shall function 
properly at temperatures between '32 and 122 degrees F at 5 to 
95 percent relative humidity non-condensing and shall 
tolerate storage temperatures between minus 40 and plus 
140 degrees F at 5 to 95 percent relative humidity 
non-condensing. 
(Supp. R4, tab 80 at 21) Further, with respect to the digital control system for the heat, . 
ventilation and air-conditioning (HV AC) system, the following temperatures were stated 
in section 15951 of the specifications: 
3 


1.2.8.1 Space Temperature 
Space temperature with a range of minus 30 to 130 
degrees F plus or minus 1 degree F. 
1.2.8.2 Duct Temperature 
Duct temperature with a range 40 to 140 degrees F plus 
or minus 2 degrees F. 
1.2.8.3 Outside Air Temperature 
Outside air (OA) temperature with a range of minus to 
30 plus 130 degrees F plus or minus 2 degrees F; with a 
subrange of 30 to 100 degrees F plus or minus 1 
degree F. 
(Supp. R4, tab 81 at 7-8) Finally, regarding measurements for the HVAC instrumentation, 
subsection 2.7.1 of section 15951 stated: 
Transmitters shall be calibrated to provide the following 
measurements, over the indicated ranges, for an output of 4 to 
20mAdc: 
a. 	Space temperature, from 30 to 130 degrees F. 
b. Duct temperature, from 40 to 140 degrees F. 
c. 	Heating hot-water temperature, from 100 to 250 
degrees F. 
d. Outside-air temperature, from minus 30 to 130 
degrees F. 
(Supp. R4, tab .81 at 22) 
5. The "PROPOSAL SUBMISSION REQUIREMENTS," section 00100 of the 
Request for Proposals (RFP), included item 11 which was entitled "PRE-PROPOSAL 
CONFERENCE SITENISIT." It provided that a site visit would be held at the power 
plant on 17 October 2002. Item 11 stated further: 
Prospective offerors are advised to visit the work site 
to ascertain the degree of difficulty expected in avoiding 
4 


existing features, and other factors affecting the work. Any 
difficulties arising during perfonnance of work that would 
have been evident at such a prior inspection will not be 
considered to be a result of differing site conditions. 
(R4, tab 29 at 3) This language was bolstered by the contractual clause governing site 
investigations, FAR 52.236-3, which provided, in pertinent part: 
The Contractor acknowledges that it has taken steps 
reasonably necessary to ascertain the nature and location 
of the work, and that it has investigated and satisfied itself 
as to the general and local conditions which can affect the 
work or its cost ... Any failure. of the Contractor to take the 
actions described and acknowledged in this paragraph will 
not relieve the Contractor from responsibility for 
estimating properly the difficulty and cost of successfully 
perfomling the work, or for proceeding to successfully 
perfonn the work without additional expense to the 
Government. 
(R4, ~ab 33 at 1-2) 
6. The site visit proceeded as scheduled. It was conducted by 
Mr. William Havard who was the "operation and maintenance supervisor/superintendent" 
of the CHPP (supp. R4, tab 75 at 6). Also in attendance was Mr. Sonny Lindner of 
SHCI, as well as several representatives of Wieland Lindgren Engineers, a finn which 
assisted SHCI in the design phase of the contract (R4, tab 69 at 19; supp. R4, tab 25 at 3). 
Mr. Havard described his responsibilities with respect to 'the contract at issue as follows: 
I was originally one of the people that helped with the design 
concept before it was written for a project forthe Air Force. 
Once the project blossomed from there and was awarded, I 
was on the selection committee with the Corps of Engineers 
with a group of other people. From that point on after the 
company was selected, I was the--pretty much the main 
person coordinating everything for any work in the central 
heat and power plant. All projects in that plant went through 
me, coordination, everything. 
(Supp. R4, tab 75 at 7-8) 
5 


7. During this sworn deposition, Mr. Havard generally described the site visit in 
these terms: 
Yeah. Pretty much if a contractor hadn't been in there 
before, show him the basic layout. I give him my basic 
speech, spiel, whatever you want to call it, that they wouldn't 
affect anything in that plant. Show them the boilers, the 
turbine side. If you look where my office was at the time, 
you would come out onto the turbine floor, see the five 
turbines, go over and see the boilers, go up in the elevator. 
As you walk down, showing each level of the boilers, the fan 
decks, where they had to tie in and remove the fans. 
Talked about how· in the wintertime that we had to 
close everything up because at 50, 60 below, you can't have 
doors open. You suck it in so--basic physics. Heat rises. Fan· 
deck normally can run 120, 140 degrees. In the summertime 
even hotter-if you have got ambient temperature. You know, 
give them a layout there. 
One of the things I always harped on with the 
contractors is to let them know that --have their employees 
drink plenty of liquids because you get dehydrated. I saw too 
many times where contractors had passed out because of the 
heat in there. So they had to drink plenty of liquid. There 
were the circumstances. 
But then, again, you have to look at, I was on the 
selection committee, and one of the. things, the criteria is 
having experience in a power plant. Now, if you experience 
in a . power plant, everything I'm telling you or them, they 
should be very well aware of it, you know, that power plants 
are hot, dirty places, especially coal fired plants. 
(Supp. R4, tab 75 at 16-17) Mr. Havard also testified at greater length regarding his 
discussion with potential offerors about the hot working conditions they would encounter 
at the CHPP. He stated: 
Normally I tell them through the walk-through. I've 
told it in briefings. We had water fountains on levels there. 
Most of my people know that. Temperature came up at 
different times, I know, because of work that they would do 
like, on the fan deck, if they were doing anything by the 
boilers, because that's where it's especially hot. 
6 


The only heaters in that power plant were by doors. 
That plant was heated by the temperature from the equipment. 
I mean, itwas all over there. Some equipment, if you look at 
the higher level, you had to keep in mind the temperature. 
And the fan deck is one area I know that I told them about 
because we had to use high temperature grease on our 
bearings for those--the fan motors. So it's just one of the 
. areas where it was always hot. 
(Id. at 17-18) 
8. Although SHC1 concedes in its opening brief that there "does not appear to be 
any dispute thatthe temperature on the upper levels where work was being done routinely 
exceeded 120
0 
F.," Mr. Lindner, its representative at the site visit, stated in an unsworn 
statement that he "did not carry a thermometer with me and do not recall it being 
excessively hot inside the CHPP during my brief walk through." Mr. Lindner also stated . 
that he was not "very near" Mr. Havard during the site visit and did not hear him assert 
that the plant was "hot.,,2 (App. br. at 3; R4, tab 593) Mr. Lindner's statements in his 
unsworn statement are contradicted by a host of assertions made by other employees. of 
SHC1 in their sworn depositions. For example, Mr. Mark Carton, SHCI's project 
superintendent on t4e CHPP, stated that the temperatures on the upper floors of the 
facility during his first visit were hot. He also testified: . "I was sweating my guts out" 
(supp. R4, tab 70 at 15). Mr. Carton's sworn testimony was corroborated by that of 
Mr. Philip T. Dearing, SHCI's project manager, who testified in pertinent part, as 
follows: 
But my recollection was it always seemed to be hot up there 
because you'd think that in the winter that it would be cooler, 
but it wasn't because it was so cold outside that they kept all 
the doors shut and stuff. And so it was boiling hot in the 
winter, and that's also when they're produ·cing a tremendous 
amount of heat from the boilers because everyone's cold and 
so they're trying to keep the buildings warm. So the boilers 
are much more in demand, which is creating heat. 
But in the summer, it was still boiling hot. They'd have the 
doors. open right at the very top of the baghouse, and I just 
2 There is no record evidence as to what the three Wiel~nd representatives either felt or 
heard during the site. visit. 
7 


remember that it was still boiling hot ·up there because it was 
summer and so it was warmer outside anyway. 
(Supp. R4, tab 71 at 43) The sworn testimony ofMessrs. Carton and Dearing was 
corroborated further by that of Mr. Tim Jauhola, another SHCI superintendent on the 
project. In his sworn depositiori, Mr. Jauhola testified with respect to the upper levels of 
the facility "[i]t's like 120 degrees up there. It's hot, hot, hot." (Supp. R4, tab 74 at 87) 
Hence, the sworn testimony of three SHCI managers directly contradicts the unsworn 
statement of Mr. Lindner and confirms Mr. Havard's sworn assertions. 
9. The CO gave SHCI notice to proceed on 14 May 2003, and SHCI acknowledged 
the notice on 18 May 2003 (R4, tabs 27, 28). In August 2003, an issu.e arose as to the 
temperatures at the CHPP. Misquoting subsection 1.5.d. of the design criteria set forth in 
section 11215 of the specifications, Mr. James Michael of Wieland Lindgren Engineers 
forwarded the following letter to SHCI: 
As per our recent discussion please find this letter my 
explanation for the need to upgrade the Induced Draft Fan 
Drive Motor. 
The RFP Specifications, Section 1 12l5-Induced Draft Fans, 
Section 1.5, paragraph d, "Design Criteria" state that the 
CHPP indoor temperatures are; minimum 50oF, maximum 
90°F. During the 65% review meeting comments were made 
by the plant operations manager, Bill Havard, that the 
elevated floor that the Induced Draft Fans were situated on, 
exceed the temperature given in the Design Criteria. 
Mr. Havard stated that temperatures in the range or" 
135°- 140°F have been recorded. This ambient temperature 
exceeds the ambient design rating of the standard motor. The 
motor specified to the ID Fan vendor was upgraded to operate 
in this higher ambient condition. I believe that the vendor can 
provide you with the up charge for this motor. I believe that 
this higher operating temperature motor will be installed with 
larger size conductors than would be used for the typical 
drive motor. This can be confirmed by your electrical 
sub-contractor, and he can advise you best on the additional 
charge for the larger conductors. 
8 


If you have any questions or comments, please contact me. 
(R4, tab 25 at 3)3 On 4 September 2003, SHCI forwarded "Request for Information 
No. 011" to the Corps in which it stated, in part: 
See the attached letter from our designer. We believe the 
upgrading of the temperature r[e]quirements to be a change to 
the contract. 
Please confirm asap as we are proceeding with fan 
construction based upon the verbal direction given 
previously[.] 
(Id. at 1-2) The Corps responded to SHCI's letter on 24 September 2003, stating, in pertinent 
part: 
We shall address increasing the operating temperature 
rating of all six (6) ID Fan drive motors ina forthcoming 
Request for Proposal. 
(R4, tab 24) On 15 January 2004, after reviewing the specifications, the Corps provided a 
further response to SHCFs letter in part, as follows: 
Reference your serial letter H -0037 dated September 4, 
2003, and our serial letter C-0029 dated September 24, 2003. 
It is our position that the substitution of WEG motors 
for the originally proposed TECO- Westinghouse motors for 
the ID fans is not a contract change but a variation and we 
shall accept it as such. Therefore, we shall not issue an RFP 
or otherwise pursue a contract modificatiori. 
Under the expected loads, both motors will operate at 
the maximum interior ambient temperature of 140°F, making 
the WEG motor an acceptable variation. 
(R4, tab 22) 
3 The subsection cited by Mr. Michael referred to "current" temperatures at the plant 
(finding 3). 
9 

10. SHCI installed the substituted engines and did not dispute the Corps' finding 
that the substitution constituted merely a variation-and not a change-to the contract 
(2nd supp. R4, tab 83). 
11. No further issues arose regarding indoor temperatures at the· CHPP until 
14 June 2005 when SHCI forwarded a letter to the Corps in which it stated, in part: "We 
also wish to take this opportunity to notify you that we are reserving our rights to claim 
time and costs related [to] the excessive temperature Strand Hunt and our Subcontractors 
experienced while working in the plant" (R4, tab 9 at 2). 
12. On 29 June 2006, SHCI forwarded a request for equitable adjustment (REA) 
to the Corps. It wrote: 
We are submitting this request for equitable adjustment that 
was as a result of working in the excessive heat and its related 
inefficiencies in the amount of $2,447,453. 
This change has been identified early in the proj ect. The 
Government has stated this temperature difference from 900 P. 
to 120° would be handled by change order to the contract 
(see Tab A.12). 
The inefficiencies and the related costs and delays due to 
working in temperatures in excess of 90° is a changed 
condition to our contract. Please review the attached 'Excess 
Heat Summary of Information' book dated June 29, "2006 
along with Volumes I through XIII with detail source 
information. 
Upon your initial review, and within 30 days, we would like 
to receive a date when a response by the Government is 
anticipated. 
(R4, tab 7) The statement that the govenlment would handle the "temperature 
difference" issue "by change order to the contract (see Tab A.12)" referred to evaluations 
conducted by the Corps in 2003 relating to the fan motor issue. The initial 
recommendation that this matter was to be "handled by change order to the contact" was 
marked ','Non-concurred" with Mr. Havard commenting that the "[a]verage temperature 
for fan deck area is 120 degrees, not 90 degrees" (ex. A-12 at 1). On this basis, no 
change order was issued in 2003; SHCI did not contemporaneously dispute this 
conclusion (findings 9, 10). 
10 

.13. On 30 June 2006, SHCI wrote another letter to the CO. It stated: 
As per our telephone conversation today, due to the 
Government's inability to commit to a s'chedule for review 
and negotiation of this REA, we hereby request a Contracting 
Officer's decision for our claim for the working in excess 
heat in the amount of$2,477,453. 
We have just recently sent you two (2) complete copies and 
one (1) set to Mr. Norm Sams. 
We have also enclosed a Certification of this Claim. 
Please advise us immediately should you require any other 
documents to consider this valid claim. 
(R4, tab 6 at 1) 
14. On 19 April 2007, the Corps' CO, Ms. Crystal D. Labreque, issued a final 
decision in which she denied SHCI's claim in its entirety (R4; tab 1 at 31). As a basis for 
her decision, the CO relied heavily upon various specifications which described 
temperatures in the CHPP as high as 140° F (id. at 7-8). In addition, the CO noted that, at 
the pre-proposal conference, Mr. Havard "alerted all participants that it was very hot 
inside the building and contractors should plan to take precaution for personnel working 
in the heat" (id. at 13). Accordingly, the CO concluded that SHCI had encountered 
neither a changed condition nor a differing site condition as a result of the admittedly 
high temperature in the CHPP (id. at 28). This appeal followed (R4, tab 2 at 4). 
DECISION 
In contending that the high temperatures at the CHPP constituted either a 
constructive change or a type I differing site condition, SHCI focuses on isolated 
subsections of the specifications which referred to "current" indoor temperatures at the 
CHPP varying from 50° F to 90° F at the time when the RFP was prepared (app. br. at 3). 
But it fails to give any weight whatsoever to several subsections of the specifications 
which described indoor temperatures as high as 140° F. All of the specifications which 
we have cited were integral elements of the baghouse system (findings 3-4). 
Accordingly, interpreting the contract as a whole, the specifications clearly stated a high 
temperature range in the CHPP of 90° to 140° F. Based upon the testimonyofSHCI's 
11 


own project superintendents and n1anagers, these are precisely the conditions which 
appellant encountered throughout the life·ofthe contract (finding 8). 
In an attempt to thwart this conclusion, appellant's counsel now argues that the 
specifications alluding to temperatures as high as 140
0 
F referred to "other buildings and 
equipment that generate[d] its own heat" (app. bra at 9). Initially, we note that this is the 
first instance in which this argument has surfaced in the course ofthis protracted 
litigation. SHCI did not raise these contentions in it request for equitable adjustment, its 
claim, its notice of appeal, its complaint, or in its motion for summary judgment. This is 
significant. It is axiomatic that we give credence to disputed interpretation of contractual 
provisions only if they were held by a party at the time of award. There is no evidence to 
support such a conclusion in this instance. 
Just as importantly, counsel's assertions are not supported by persuasive record 
evidence. For example, with respect to the preformed sealants described in subsection 
2.4.3 of section 07900 of the specifications (finding 4), counsel's arguments are not· 
supported by any evidentiary references whatsoever (app. bra at 9). Similarly, regarding 
the instruments and controls-baghouse system, described at subsection 2.4.1.1 of section 
13405 of the specifications (finding 4) appellant's counsel attempts to bolster his 
statements with a generic, unsworn statement from a representative of one of SHcr s 
subcontractors (R4, tab 599). Th~re is no indication that SHCI held this interpretation at 
the time of contractual award six years earlier. Finally, appellant's counsel cites no 
persuasive evidence to support its allegations regarding various subsections of 15951, 
"DIRECT DIGITAL CONTROL FOR HVAC" (finding 4; app. bra at 10). In sum, SHCI 
has failed to meet its burden of denl0nstrating that various provisions in specifica~ions 
stating temperatures as high as 1400 F are irrelevant to the appeal. The temperatures 
encountered by SHCI in the CHPP were within the range stated in the specifications. 
Therefore, appellant encountered neither a constructive change nor a type I differing site 
condition in performing its work under the contract. 4 
4 Based upon the Board's decision, the Corps' notice arguments relating toa differing site 
condition need not be addressed. 
12 

CONCLUSION 
The appeal is denied. 
Dated: 21 June 2012 
MICHAEL T. PAUL 
Administrative Judge 
Armed Services Board 
of Contract Appeals . 
I concur I concur 
EUNICE W. THOMAS 
Administrative Judge Administrative Judge 
Acting Chairman Vice Chairman 
Armed Services Board Armed Services Board 
of Contract Appeals 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. 55904, Appeal of Strand 
Hunt Construction, Inc., rendered in conformance with the Board's Charter. 
Dated: 
CATHERINE A. STANTON 
Recorder, Armed Services 
Board of Contract Appeals 
13