Optimum Services, Inc.
Docket: ASBCA 57575
Decision date: 2013-09-10

ARMED SERVICES BOARD OF CONTRACT APPEALS 
Appeal of-- ) 
) 
Optimum Services, Inc. ) ASBCA No. 57575 
) 
Under Contract No. W912EP-09-C-0033 ) 
APPEARANCES FOR THE APPELLANT: Karl Dix, Jr., Esq. 
J. Daniel Puckett, Esq. 
Smith, Currie & Hancock LLP 
Atlanta, GA 
APPEARANCES FOR THE GOVERNMENT: Thomas H. Gourlay, Jr., Esq. 
Engineer Chief Trial Attorney 
Sharon W. Conklin, Esq. 
Engineer Trial Attorney 
U.S. Army Engineer District, Jacksonville 
OPINION BY ADMINISTRATIVE JUDGE TING 
Optimum Services, Inc. (OSI) claimed $2.3 million as equitable adjustment 
contending that completion of a disposal area on Lost Creek Island, Florida, was delayed 
as a result of ( 1) encountering a differing site condition at the location where a weir riser 
system and associated structures were built, (2) the Corps of Engineers' (Corps) late 
return of its submittals, and (3) defective specifications in requiring extra-long timber 
piles that were long lead-time special-ordered items. 1 The Corps' contracting officer 
(CO) denied the claim and OSI appealed. We deny the appeal. 
FINDINGS OF FACT 
1. On 19 June 2009, the Corps' Jacksonville Regional Contracting Center in 
Jacksonville, Florida, awarded Contract No. W912EP-09-C-0033 to OSI. The contract 
was in the amount of$4,073,158.96. (R4, tab 4) The project involved the "Aquatic 
Ecosystem Restoration" at Rose Bay, Volusia County, Florida (WB 2, tab 25 at 761). 
Rose Bay is located in east-central Volusia County, Florida, immediately south of the city 
ofPort Orange and is intersected by U.S. Highway 1. Lost Creek Island, the site of the 
1 OSI first raised the defective specifications issue in counsel's opening statement 
(tr. 1110). 
2 At the hearing, both parties used witness books containing selected documents from 
the Rule 4 files. OSI's witness books are referred to in this decision as "WB," and 
the Corps' as "R W." 

project's disposal area, is located adjacent to the Intracoastal Waterway approximately 
two miles east-southeast of Rose Bay. (WB, tab 1 at 395) 
2. The contract required the restoration of inter-tidal and sub-tidal benthic 
substrate and hydrologic processes within Rose Bay by removing up to 152,000 cubic 
yards of unconsolidated sediment from the Bay. The contract was divided into a base and 
three option items: The base item included reconstruction of an existing upland disposal 
area on Lost Creek Island by constructing a new dike and gravel drainage; removing two 
existing weirs; and constructing two new weir structures. The three option items covered 
the dredging work of 104,000, 21,000, and 27,000 cubic yards respectively. The dredged 
material was to be placed in the upland disposal area on Lost Creek Island to be 
constructed about two miles from the dredging area. (WB, tab 1 at 395) Lost Creek 
Island is not accessible by land (tr. 1156). Access required a trip of half an hour by boat 
(tr. 1155). Materials must be brought to a staging area then onto a barge; they would also 
have to be off-loaded onto the island, and either stockpiled or put in place (tr. 1156). 
3. The contract required OSI to begin work within 30 calendar days and to 
complete the work within 324 calendar days after receiving notice to proceed (NTP) (R4, 
tab 4). The 324-day contract performance period included (1) 30 calendar days for 
mobilization, (2) 116 calendar days for the base item, (3) 130 calendar days for Option A, 
(4) 20 calendar days for Option B, and (5) 28 calendar days for Option C (see FAR 
Clause 52.211-10, COMMENCEMENT, PROSECUTION, AND COMPLETION OF WORK, WB, 
tab 1 at 155). The contract was awarded with all options (R4, tab 4). Among the 
standard FAR clauses incorporated by reference were: FAR 52.236-2, DIFFERING SITE 
CONDITIONSandFAR52.242-14, SUSPENSIONOFWORK3 (WB, tab 1 at 144). 
4. The disposal area to be constructed consisted of a berm (also referred to as an 
embankment or a dike) enclosing the disposal area and was to be constructed from 
materials on the site together with gravel to be imported by barge. Once constructed, the 
disposal area would provide a containment area in which the wet dredged materials could 
be deposited. The water from the material would then drain out of the disposal area 
through the drain pipes in the weir into the Intracoastal Waterway. (Compl. and answer 
~ 14) 
5. The contract required OSI to design the weir structures with 36-inch diameter 
outfall pipes. The weirs were intended to allow water to drain out of the disposal area 
through the pipes. The weirs were to be constructed using a flashboard riser system, 
which would permit the weirs to operate from water surfaces ranging from an elevation 
of9.5 feet to an elevation of25.5 feet. Permitting the disposal area to drain was critical 
3 The contract FAR clauses did not specify which versions of the clauses were 
applicable. We assume the April1984 version of the clauses current at the time 
the solicitation was issued were incorporated. 
2 

to facilitating consolidation and drying ofthe dredged material. The weir system was to 
be anchored by timber piles. It was critical to the design that the weir system be properly 
anchored to maintain its structural integrity and the elevations of the pipes and the risers. 
(Compl. and answer~ 16) 
6. By way of analogy, the weir is like a bucket placed in water. Water flows over 
the flashboards and discharges through the outfall pipes into the Intracoastal Waterway. 
In order for the weir system to stay in place, uplift from the water around it must be 
addressed. The weir system or structures must therefore be anchored with suitable timber 
piles or other anchoring devices. (Tr. 1/52-53) The weir structures are accessed through 
a walkway. The walkway is anchored by separate piles. The walkway, not being a 
bucket submerged in water, does not experience uplift from water. (Tr. 1153) 
The Contract's Boring InfOrmation 
7. The cQntract specifications include a "Geotechnical Data Report" at Section 
00 31 32 (WB, tab 1 at 283-390). Paragraph 1.2.2.2 indicates the soil borings taken on 
Lost Creek Island: CB-LCI03-01 through CB-LCI03-12 along the proposed dike 
alignment and CB-LCI03-13 through CB-LCI03-20 located at the central spoil mound 
(id. at 284 ). This report described the soil characteristics encountered: 
(!d.) 
Consistently throughout the site, the spoil material is 
comprised of light brown clean medium dense fine quartz 
sands with minor amounts of shell and trace silt.. .. [N]ative 
material is present below the fill. The material is 
predominantly medium dense gray quartz silty sand to 
slightly silty sand, with minor organic and shell content. ... 
Below the fine layer and in the other borings, medium dense 
clean fine quartz sand with minor shell and trace silt is 
present. This clean sand layer goes to elevation -38.0 ft. 
NGVD29 as found in boring CB-LCI03-10. 
8. Of all the contract borings, the one that is important for purposes of this appeal 
is CB-LCI03-10. This boring was located approximately 75-100 feet from the planned 
new weir structures on the toe or exterior side of the dike between Sta. 2+00 and 
Sta. 2+50 (tr. 11208, 21115; WB, tab 60 at 2269). The drilling log for boring 
CB-LCI03-10 is included in the contract specifications. Blow counts (N values), an 
important factor in determining pile length, are shown in the drilling log for 
CB-LCI03-10 (WB, tab 1 at 333-36). 
3 

The Contract's Timber Pile Design Criteria 
9. The specifications contemplated the use of round timber piles to support the 
weir structures. It also specified the method of static analysis and the design 
requirements for the contractor to design the appropriate piles. Section 31 62 20, 
"ROUND TIMBER PILES," provides at Paragraph 3.1.2: 
The Contractor may choose a design of either 2 or 4 piles per 
weir. The tip elevations for the piles shall be determined 
using a static analysis method based on the subsurface data 
provided in the appendix. The method that the Contractor 
shall use for the static analysis is that outlined in EM 
1110-2-2906, Design of Pile Foundations, or the SPT97 
complete program. The design requirements of 
EM 1110-2-2906 shall apply for both design methods. For 
example, no load tests shall be performed. Therefore, the 
required factor of safety against uplift shall be 3.0 as per 
paragraph 4-2.c of this EM whether the design method of the 
EM or SPT97 is used to determine the tip elevation .... 
(WB, tab 1 at 532) 
The Contract's Submittal Requirements 
10. Section 01 33 00 ofthe specifications pertains to "SUBMITTAL 
PROCEDURES." It provides, at Paragraph 1.10, Scheduling, that "Submittals covering 
component items forming a system or items 
that are interrelated shall be scheduled to be 
coordinated and submitted concurrently." The same paragraph requires the contractor to 
"[ s ]chedule submittals 
with sufficient time to obtain a Government response prior to 
delivery of applicable equipment and materials, and commencement of applicable work." 
For submittals requiring government QA review, the paragraph provides the government 
has 30 calendar days from the date of receipt to review, code, and return comments, and 
the contractor has 1 0 calendar days after return to resubmit disapproved submittals 
(coded "E") or approved submittals requiring resubmission (coded "C"). 4 (WB, tab 1 at 
425) 
11. A complete submittal for the new weir system would include the walkway, the 
weir, the pilings associated with the weir, and the weir risers, under several different 
sections of the specifications (tr. 1/72). As the Corps explained at the hearing, submittals 
could be reviewed more efficiently and quickly if everything pertaining to a system was 
4 Codes A through G and X are defined under Paragraph 1.11.1, Section 01 33 00 (WB, 
tab 1 at 426). 
4 

submitted together. If submittals were submitted piecemeal, the reviewer would not be 
able to find conflicts between designs, or how various components of a design would 
work together. (Tr. 3/186) Because of compatibility issues, a submittal approved earlier 
could be disapproved subsequently. Reviewing components of a system piecemeal could 
actually take longer because the reviewer would have to go back and see how 
components fit with the rest of the system. (Tr. 21143-44) That said, piecemeal 
submission and review do have some benefits in that obviously wrong design 
components could be caught early and sent back to the contractor for correction 
(tr. 3/186). Initially, the Corps "started reviewing just some ofthe components ofthe 
weir system" (tr. 21142). The Corps explained "At the time we were trying to ... partner 
with [OSI], and as things came in, look at it to expedite the overall review process" (id.). 
12. OSI subcontracted the construction of the weir structures and the walkway to 
Derrico Construction Co. ofMelboume, Florida (Derrico) (tr. 1141). Through Contech 
Construction Products, Inc. (Contech) (see WB, tab 49 at 2201), a timber pile supplier, 
Derrico/Contech hired CBC Engineers & Associates, Ltd. of Centerville, Ohio (CBC) 
(see WB, tab 49), to design the timber piles for the weir structures (tr. 1145). 
OS! 's Schedule 
13. OSI submitted a "Bar Chart" schedule to the Corps on 21 August 2009 (R4, 
tab 251 ). The schedule showed OSI planned to construct the "Embankment/Dike" 
between 17 September to 13 November 2009, to install the "Weir and Outfall [discharge 
pipes]" between 19 September to 6 October 2009, and complete the disposal area by 
completing seeding between 20 and 28 November 2009 (id.). Thus, OSI planned to 
complete installation of the weir structures before completing the elliptical dike 
containment area. Fabrication of the weir system would take up to two weeks and 
installation would take about five days (tr. 1191). While OSI "built the fabrication time 
and procurement time in the schedule," it did not incorporate submittal review time 
(30 calendar days) into its schedule (tr. 11117-18). 
14. OSI acknowledged receipt of the NTP on 5 August 2009 (R4, tab 2 at 2), thus 
establishing 25 June 2010 as the contract completion date. OSI mobilized in early 
September 2009 (WB, tab 8 at 3413; tr. 1199). 
15. OSI submitted its timber pile design (Static Pile Capacity Analysis) by 
Transmittal No. 31 62 20-1 on 9 September 2009 (WB, tab 12 at 2018). CBC's 
calculations were based on CB-LCI03-1 0 and the static analysis method outlined in EM 
1110-2-2906 (R4, tab 244 at 2330). As reflected in CBC's calculations, its design called 
for two 12" timber piles of 50' in length "driven a minimum of25 feet" into sand (R4, 
tab 244 at 2330; WB, tab 12 at 2018, 2040). The Corps coded the submittal "C" meaning 
"Approved, except as noted on drawings (Resubmit)" (see WB, tab 1 at 426, § 01 33 00, 
~ 1.11.1). Among the Corps' 18 September 2009 comments were (a) "Does not appear 
5 

that the piles are adequate in wind loading"; (b) "The pile does appear to [be] adequate 
for uplift"; (c) "No mention of piles for walkway"; and (d) "Resubmittal required" (WB, 
tab 12 at 2020). 
16. The Corps' 18 September 2009 response to OSI's Static Pile Capacity 
Analysis submittal (timber pile design) was sent through the Corps' Quality Control 
System (QCS), a computer program that allowed the parties to share information (WB, 
tab 92 at 1; tr. 1/81 ). There was a limitation to the use of QCS, however; the Corps' 
comments made directly on the submittal drawings could not be sent back electronically 
(tr. 3/126). In the case ofOSI's Static Pile Capacity Analysis, through "misrouting" 
(tr. 3/135) in the Corps' offices and events relating to Modification P00005 described 
later, the complete hard copy of the submittal was not returned to OSI until25 November 
2009, 77 days after submission. (WB, tab 92 at 1) OSI's submittal on the flashboard, 
weir riser and walkway design (Transmittal33 40 01-3) was submitted on 28 August 
2009. The submittal was coded "E" (Disapproved (See Attached and Resubmit)) and the 
Corps' comments were not visible on QCS. The complete hard copy of the submittal was 
not returned to OSI until25 November 2009, 89 days after submission. (WB, tab 92 at 3) 
17. On 22 September 2009, OSI representatives met with John H. Wilson 
(Wilson), the Corps' quality assurance specialist, and requested that the Corps group 
Transmittal 31 62 20-1 with several other submittals and review all of them together 
(WB, tab 67 at 903). The 
CO found "Optimum did not provide a complete submittal 
package for the weir system design until September 23, 2009" (WB, tab 6 at 21). 
Discovery of Unsuitable Material 
18. In the meantime, by email attachment to the Corps on 23 September 2009, 
OSI's project manager, Matthew W. Conneen (Conneen), sent pictures of an area at the 
site said to be between Station 2+00 and Station 4+00 showing "substantial yielding 
under our equipment at the existing embankment elevation" (WB, tab 21 at 757). The 
email went on to say: 
This area is located approximately under the center line of the 
proposed levee spanning the proposed Weir Riser System. 
Upon further investigation with our QC this isolated area is at 
an unknown depth and consists of a mixture of peat and 
clay/marl material. Boring Designation CB-LCI03-1 0 
doesn't identify this material nor do any other surrounding 
borings. We feel that it is a differing site conditions and 
would like to be advised on how to proceed. 
We have located away from this area until a US ACE 
representative is able to verify this condition. 
6 

(WB, tab 21 at 757-58) OSI's 24 September 2009 email notified the Corps that it "will 
need to be working in this area no later than within a week, after which [we] will be 
impacted" (WB, tab 23 at 2119). 
19. Conneen testified that the "muck" found was described to be dark gray in 
color, different from the light sandy color materials typical on Lost Creek Island and not 
consistent with what was shown in contract boring CB-LCI03-1 0 (WB, tab 20, 
photographs; tr. 1/127). As reflected in its 24 September 2009 internal email, the Corps' 
initial assessment was that the area coincided with the location of the old weir structures 
and the materials could be "fine grained material that settled out" in front of the old weirs 
when the site was active, and the extent of the material should be limited and could be 
easily dealt with (WB, tab 22). 
20. According to OSI, the Corps 
was "very quick in responding" to the differing 
site condition (DSC) notice (tr. 1/130-31). David R. Tolle, the Corps' Administrative 
Contracting Officer (ACO) and Area Engineer, and a 
Corps geotechnical representative 
visited the site on 25 September 2009 (tr. 2/107-08; RW, tab 6). While OSI had reported 
a potential DSC area between Sta. 2+00 and Sta. 4+00, roughly 200 feet long, Tolle, 
using a five foot probing rod determined that the maximum limits of the DSC area to be 
between Sta. 2+86 and Sta. 3+86, an area of approximately "50 feet by 100 feet" 
(tr. 2/88-89). He also determined that the DSC or "muck area" did not extend to the area 
where the timber piles for the new weir structures would be constructed (tr. 2/90). 
21. After the site investigation, Tolle's 25 September 2009 email advised his 
colleagues that "the muck is located within the footprint of the dike foundation on the 
Northeast side of the disposal area, near the location of the new weirs." His email stated 
that the Corps would need to develop a scope of work to address the issue so that the 
impacts to the contractor's dike construction could be minimized. (WB, tab 24) Because 
the upland disposal site was designed to contain dredged materials from Rose Bay, the 
Corps' 2 October 2009 trip report on the 25 September 2009 investigation concluded that 
"[t]hick layers of unsuitable, fine grained material within the embankment footprint are 
not acceptable," and recommended that "[t]he contractor shall remove the material to 
EL-l in accordance with Note 5 on sheet CN 714" (RW, tab 6). 
22. So that the location of the DSC (muck) encountered could be clearly shown 
for purposes of the record, Conneen drew a sketch at the hearing on Contract Drawing 
No. ST 715. His sketch shows the 50' by 100' muck area (marked in blue cross-hatch) 
did not 
intrude into the area where the new weir structures and their supporting timber 
piles were to be built. His sketch also shows the location of contract boring 
CB-LCI03-10 to the north (green dot) and the new borings (B-1, B-2 and B-3) (blue dots) 
OSI's subcontractor would later drill. (WB, tab 3 at 3; tr. 1/140) 
7 

23. By letter dated 28 September 2009, ACO Tolle advised OSI that the Corps' 
initial investigation revealed the presence of a potential DSC and the Corps was 
continuing its investigation. The letter directed OSI to stop work in a limited area: 
In order to ensure the conditions at the area in question 
are not disturbed, you are instructed to not work in the area 
identified (between Sta. 2+85 and Sta. 3+85[51) until such time 
as you are provided additional direction. However, you may 
continue to work in all other areas of Lost Creek Island. 
(WB, tab 25 at 761) 
24. ACO Tolle's 8 October 2009letter asked OSI for a proposal to address the 
DSC described as "peat and clay/marl" located "between Station 2+86 and Station 3+86" 
approximately 50 feet wide. The scope of work of the requested proposal included 
(1) removal ofthe unsuitable material (peat and clay/marl) to Elevation -1 NGVD; and 
(2) placement of a bridging lift over the area where the unsuitable material was removed 
until the fill elevation matched that of the surrounding area. (WB, tab 28) In response to 
the Corps' request for proposal (RFP), OSI by letter of 12 October 2009 submitted a 
proposal of$14,291.69 plus a time extension of three calendar days for the work (WB, 
tab 29 at 768). 
25. In a 13 October 2009 email to OSI, Wilson expressed concern whether OS I' s 
"submittal design data" based on contract boring CB-LCI03-1 0 "accurately represent the 
soil conditions at and around the proposed location 
for pile driving" in light of the muck 
discovered nearby, and whether test pits should be excavated to confirm the soil type 
used in the design. The email asked OSI for "Any information ... that could shed 
additional light ... in addressing our concerns about the design data used in your submittal 
and expediting our review." (WB, tab 31) 
26. OSI's 13 October 2009 email reply stated that it would forward the Corps' 
inquiry to the designer/builder and that delivery of material would be held "until further 
direction is provided." The email also mentioned that while 
OSI would assist with any 
test pits needed, it would only be available on overtime "provided direction is given by 
the Contracting Officer or authorized representative." (WB, tab 34) Conneen testified 
that since the "area of muck was outside the piles," he had no "big concern," but when he 
forwarded the Corps' 13 October 2009 email to CBC, CBC did have a concern 
(tr. 11161). 
5 Elsewhere the record describes the area as between Sta. 2+86 and Sta. 3+86. The 
minor differences have no significance. 
8 

27. To remediate the DSC problem (muck), the parties negotiated an increase of 
$13,110.22 to the contract price plus an extension of three calendar days to the contract 
completion date (WB, tab 39 at 791). Michael A. Presley (Presley), the Corps' 
Contracting Officer Representative (COR), who negotiated Modification P00004 with 
Conneen 
(tr. 2/175), testified that before negotiating the modification, the Corps believed 
the DSC area was contained. He testified he would not otherwise have negotiated a 
modification if he knew he had to issue another RFP to address other potential DSC 
areas. (Tr. 3/154-55) 
28. By letter dated 21 October 2009, ACO Tolle forwarded Modification P00004 
to OSI with instruction to sign and return the copies to the Corps' area 
office. Paragraph 
A of the modification set out the "SCOPE OF WORK": 
1. In an area approximately 50 feet wide and 100 feet long 
between Station 
2+86 and Station 3+86, 
remove the 
unsuitable material (peat and clay/marl) to Elevation -1 
NGVD .... 
2. The Contractor shall place a bridging lift over the area 
where the unsuitable material was removed .... From this 
elevation, construction of the dike (in accordance with the 
provisions of Section 35 41 00, DIKE CONSTRUCTION, 
shall continue until the fill elevation matches the elevation of 
the surrounding area (subsequent to clearing and grubbing 
operations). 
(WB, tab 39 at 790-91) 
The modification included the Corps' standard "CLOSING STATEMENT" or release 
clause at Paragraph D: 
In consideration of the modification, agreed to herein as 
complete equitable adjustment for the Change Request 
NM004 proposal for adjustment, the Contractor hereby 
releases the Government from any and all liability under this 
contract for further equitable adjustments attributable to such 
facts or circumstances giving rise to Change NM004 for 
adjustment. 
(WB, tab 39 at 792) 
29. Because Modification P00004 included the release language, OSI became 
concerned that signing it might 
affect any future claims it might have outside of the DSC 
9 

(muck) area addressed. It decided not to execute Modification P00004 "until a 
subsequent request for proposal [relating to geotechnical investigation of the area where 
piles were to be driven] was submitted to us." (Tr. 11155) 
30. Conneen's 21 October 2009 email advised ACO Tolle that OSI was unwilling 
to sign Modification P00004 in view of its release language "until review ofthe design 
drawing submittals are received, an RFP is received, or further clarification is given to 
the design of the flashboard riser system and walkway." His email explained that since 
CBC's design was "based on geotechnical information provided in the contract 
documents," OSI was "requesting an RFP on the additional geotechnical investigation 
needed to satisfy the concerns of our design engineer for flash board rise[ r] system and 
walkway." (WB, tab 40) Conneen acknowledged at the hearing that he essentially told 
the Corps that OSI was not going to do any more design work until there was a 
geotechnical investigation of the area where the weir structures and the walkway were to 
be built (tr. 1/203). Where the weir structures were to be constructed took up "may be 
five percent" of the total elliptical embankment/dike area. Except for "a large valley in 
that one specific area," OSI was able to perform 95% of its embankment/dike work. 
(Tr. 111 04-05) 
The Corps' Three-Phase Approach in Addressing Further Potential Differing Site 
Conditions 
31. When 
OSI refused to sign Modification P00004 over its concern that the 
release language might preclude it from recovery if the DSC extended beyond Sta. 2+86 
and Sta. 3+86, ACO Tolle came up with a three-phase strategy to move the project 
forward: Phase 1, already implemented, was to use Modification P00004 to remediate 
the 50' by 1 00' DSC; Phase 2 was to have OSI conduct a geotechnical investigation to 
determine if the DSC muck area covered by Modification P00004 extended to the area 
where the new weir structures were to be built, and to redesign the piling if necessary; 
Phase 3 would implement any physical aspects of redesign if a DSC was found 
(tr. 2/185). ACO testified that since "everything in the original differing site condition 
had been addressed by P4," he did not consider OSI's 21 October 2009 email to be "a 
continuation of the differing site condition that had been identified by Optimum on 
September 23rd, (tr. 21112). 
32. OSI actually began a geotechnical investigation on its own that would later 
be 
covered by Modification P00005 (the Corps' Phase 2) before that modification was 
signed, and even before Modification P00004 was signed. OSI selected Universal 
Engineering Sciences (UES) on or about 26 October 2009 to determine the subsurface 
conditions where the new weir structures and the timber piles were to be built. (WB, 
tab 59 at 811-12) As the design engineer, CBC chose the locations ofthe borings 
(tr. 11216, 219). UES drilled three borings: B-1 at 54' to the west ofthe centerline ofthe 
10 

weir structures; B-2 at 24' to the west of the weir structures; and B-3 at 80' from the weir 
structures (see Sketch at WB, tab 3; tr. 3/21 ). 
33. UES performed the borings on or about 29 October 2009 (tr. 11217-18), 
before Modifications P00004 and P00005 were signed. By letter dated 11 November 
2009, UES forwarded to OSI the results of its field exploration and its recommended soil 
design parameters for use in timber piling design for the proposed weir structures. UES 
visually classified the samples in accordance with the Unified Soil Classification System 
(USCS), finding: 
The soils encountered at the borings generally consisted of 
fine sand (SP) (fill) within the upper 2.0 to 4.0 feet, underlain 
by soft organic 
silt (OH) to depths varying between 4.0 and 
7.0 feet.· Below the organic soil zone, loose to medium dense 
fine sand (SP), fine sand with silt (SP-SM), and shell with 
sand was then 
encountered to depths varying between 
approximately 21.0 and 35 feet (Boring termination depth at 
B-3 location). Loose clayey fine sand (SC) and silty fine 
sand (SM) was encountered to depths of 26.0 and 31.0 feet 
below grade at Boring B-1 and B-2 locations, respectively. 
Loose sand with shell was then encountered to the boring 
termination depths .... 
(R4, tab 231 at 2264-65) UES' report provided its recommended soil design parameters 
for use in the timber pile design on Sheet No. A-2 attached (id. ). 
34. While OSI's own geotechnical investigation was proceeding, as Phase 2 of his 
three-phase approach, ACO Tolle's 26 October 2009letter asked OSI to respond to a 
Corps' RFP to "evaluate the effect of the deposit of peat and clay/marl on the weir design 
and the design of the associated pilings." The RFP specified that "[t]he Contractor shall 
obtain sufficient geotechnical information needed for the design of the piling system for 
the proposed weir structure," and "shall include Standard Penetration Test borings SPT 
boring(s) in accordance to ASTM D 1586-84 (Standard Test Method for SPT and 
Split-Barrel Sampling of Soils)." The Corps' RFP went on to say that "[t]he Government 
intends to include all costs, to include redesign of the pile lengths, associated with the 
geotechnical investigation with the costs of removing the unsuitable material from the 
dike foot print." (WB, tab 44) We find at the time the Corps issued this RFP, neither 
party knew whether the location where the new weir structures were to be built contained 
unsuitable material. Thus, if unsuitable material or DSC was found, supporting piles 
would have to be redesigned accordingly. If, however, soil conditions were found to be 
consistent with contract boring CB-LCI03-10, CBC's original pile design (submitted 
9 September 2009), if designed in accordance with EM Ill 0-2-2906, should suffice. 
11 

35. Mr. Richard Evans (Evans), OSI's Vice President, signed Modification 
P00004 on 3 November 2009, and ACO Tolle signed the modification on 6 November 
2009 (R4, tab 8 at 746). Up until6 November 2009, OSI could work everywhere else on 
Lost Creek Island (tr. 3/108). Modification P00004 authorized OSI to resume work 
between Sta. 2+86 and Sta. 3+86 covered by the Corps' 28 September 2009 stop work 
order. We find that execution of Modification P00004 in effect lifted the stop work order 
even though the Corps did not formally lift the stop work order by separate letter. OSI 
removed the muck and backfilled the area as specified by Modification P00004 in three 
days, starting 5 November 2009 (tr. 2/15, 3/107-08, 166). 
36. OSI's Evans and ACO Tolle signed Modification P00005 respectively on 
17 and 18 November 2009, increasing the contract price by $12,320.06. The "SCOPE 
OF WORK" of this modification was set out in Paragraph A: 
The Contractor shall conduct a geotechnical investigation of 
the location where the weirs will be constructed. The purpose 
of the investigation shall be to evaluate the effect of the 
deposit of peat and clay/made [sic] on the weir design and the 
design ofthe associated pilings. 
Paragraph D, "CLOSING STATEMENT," included these three paragraphs: 
Please note that this modification does not include the costs 
for any changes in the physical construction of the project 
such as additional lengths of pilings or increased diameters of 
piling. 
This modification includes the geotechnical investigation for 
the weir structure and the re-evaluation and/or redesign of the 
pilings for [the] weir structure and the walkway. 
In consideration of the modification, agreed to herein as 
complete equitable adjustment for the Change Request 
NM005 proposal for adjustment, the 
Contractor hereby 
releases the Government from any and all liability under this 
contract for further equitable adjustments attributable to such 
facts or circumstances giving rise to Change Request NM005 
for adjustment. 
(R4, tab 8 at 749-50) 
12 

37. At the hearing, Presley explained the reason he included the cost of 
"reevaluation and/or redesign of the pilings for weir structure and the walkway" as a part 
of Modification P00005 or Phase 2: He testified that based on his discussion with OSI, 
the cost of having the design engineer evaluate the effect of the geotechnical 
investigation ''was very close in cost to 
redesigning" (tr. 3/171-72). The Corps therefore 
decided to pay for a redesign it 
might or might not need. If there was no DSC at the 
location where the new weir structures were to be built, then OSI could simply "go ahead 
with their initial design" (tr. 3/172). If, on the other hand, a DSC was found, with the 
redesigned pilings in hand, it "would allow us to finish phase two without another mod 
[for re-design], and then a fourth mod for the changes" (id.). 
38. Based on UES' 11 November 2009 report, CBC redesigned the timber riser 
support piles. On 20 November 2009, OSI forwarded to the Corps a new Static Pile 
Capacity Analysis submittal (timber pile design). CBC's calculations showed it designed 
four 78-foot (28' embedment plus 50') piles at the weir riser. (WB, tab 49 at 2200, 2213) 
OS I' s pile design submittal was not approved by the Corps. The Corps' review found 
"[t]he uplift capacity 
(skin friction) calculations .. .incorrect" for five reasons, and 
commented "Uplift capacities will likely be much less than those currently calculated." 
(!d. at 2199) The Corps assigned an "E" code to the redesigned support piles and so 
advised OSI by email on 23 November 2009 (id. at 2197). Under~ 1.11.1, § 01 33 00, 
SUMBITTAL PROCEDURES, code "E" means "Disapproved (See Attached and 
Resubmit)" (WB, 
tab 1 at 426). 
39. CBC obtained the "net" skin friction values on all three borings from UES on 
2 December 2009. Using these values, CBC redesigned the timber piles on 3 December 
2009 calling for 94-foot (58'+ 36' embedment) piles. (App. supp. R4, tab 244 at 
2330-31). This design (Transmittal No. 31 62 20-1.3) was coded "E" or disapproved, by 
the Corps on 21 December 2009 (R4, tab 27 at 830). Based on the Corps' comments to 
use the contract safety factor of3.0 (finding 9) on the net friction values, CBC redesigned 
the timber piles yet again on or about 23 December 2009, this time calling for pile length 
of over 100 feet (app. supp. R4, tab 244 at 2331). The record does not show the parties 
acted on this latest design. Thus, since its original pile design 
submitted on 9 September 
2009 (finding 15), CBC redesigned the timber piles three more times, from 50 feet to 
78 feet to 94 feet, and finally, to over 100 feet in length. 
Use o(Helical Anchors 
40. Timber piles up to 60 feet in length are stocked items (tr. 1/49). Timber piles 
over 60-feet typically have to be custom ordered. The lead-time for ordering 90-foot 
long piles was three to four months. (Tr. 1150) Faced with this reality, the parties 
explored other options so that the project would not be unnecessarily delayed. 
13 

41. Various methods can be used to overcome uplift. Piles can be weighted down 
with the use of a "block of concrete" tied to a structure with rebars or a cable system. A 
saddle filled with concrete can be used to weigh down the structure. Concrete, however, 
was "a bulky item to get delivered." Helical anchors are not piles; they are a part of a 
"composite system" that can be tied into timber piles with U bolts. Helical anchors are 
stocked items that could be installed with a Bobcat. (Tr. 1154-56) 
42. At a brainstorming session in late November or early December 2009, the 
Corps proposed the use of concrete dead weights to counter the uplift which had been 
successfully used on other projects. OSI suggested the use of helical anchors which were 
"lighter and cheaper and easier to move to the island." (Tr. 3/179) 
43. Meanwhile, CBC, having redesigned 
the timber piles three times, was 
unwilling to discard its calculations and come up with a "complete new design starting 
from scratch" (tr. 11184), and was "looking for more money" (tr. 1151). Once the Corps 
indicated that it was willing to accept the use of helical anchors, OSI went to another 
designer, MBV Engineering, Inc. (MBV), which had experience with helical anchors 
(tr. 1151, 183). OSI asked MBV to design the weir structure support using UES' borings 
and helical anchors (tr. 11180-81 ). OSI submitted the helical anchor submittals on 
14 January 
2010. They were reviewed and approved on 26 January 2010. (WB, tab 62 at 
2273; tr. 3/130-31) By January 2010, OSI's flashboard riser submittals had been 
approved (tr. 11186). The helical anchors were delivered to the job site by the end of 
February 2010 (tr. 11187). Due to its piecemeal submission and repeated inability to have 
its timber pile design (Static Pile Capacity Analysis) submittals approved, we find OSI 
was, in whole or in part, responsible for the weir system submittal delays. 
44. As shown in MBV's Drawing S-1, the weir riser structure was held in place 
by four timber piles which were embedded in deep concrete footers. The concrete 
footers, in tum, were tied to helical anchors. Under this design, the timber piles were 
kept completely above ground, the concrete footers and the helical anchors were kept 
below ground. (WB, tab 4; tr. 1157) 
COE 's Expert Report and CBC 's Engineering Report 
45. In August 2010, the Corps engaged the services of Dr. Nicholas W. Hudyma 
(Hudyma) to look into whether the soil conditions shown in DES's borings (B-1, B-2 and 
B-3) varied from that shown in boring CB-LCI03-10 presented in the contract's 
Geotechnical Data Report (R4, tab 33). Dr. Hudyma, a professor at the University of 
North Florida, was accepted by the Board as an expert in geotechnical engineering 
(tr. 3/13, 17). He visited Lost Creek Island on 18 August 2010 (tr. 3/19), and prepared a 
report on his findings (R4, tab 33). 
14 

46. Soil characteristics are one of the factors used in determining the appropriate 
piles to use (tr. 3/54). In comparing the three UES's borings with the Corps' boring 
CB-LCI03-10, Dr. Hudyma found "consistency in materials with depth": 
The sandy materials encountered below the soft silt layer 
have several different classifications. The USACE boring 
classifies the materials as poorly graded sand with localized 
zones of shell. UES boring B-3 shows two zones of SP 
materials; the upper zone without shells and the lower zone 
with shells. In terms of materials, the two borings are almost 
identical. 
The other two UES borings, B-1 and B-2, further subdivide 
the sandy materials beneath the soft silt layer. B-1 consists of 
zones, in order of depth, of SP, shell with sand, SC, and SP. 
B-2 consists ofzones, in order of depth, ofSP, SM-SP, SM, 
and SP. It is imperative to note that all the materials 
identified in the UES borings below the silt layer are sandy 
materials. The original boring (CB-LCI03-10) also consists 
of sandy materials below the silt layer. 
(R4, tab 33 at 951) Dr. Hudyma testified that he did not find in UES' borings any 
classification of muck prevalent between Sta. 2+86 and Sta. 3+86 (tr. 3/66). 
47. Dr. Hudyma also looked into blow counts. Blow counts are used to determine 
soil properties for geotechnical design (tr. 3/32). Blow counts would impact uplift 
analysis because soil shear strength parameters are based on blow counts (tr. 3/74). In 
terms of pile design, a high blow count is better than a low blow count for uplift analysis 
(tr. 3/100). In terms of blow counts, Dr. Hudyma's report found: 
Based on blow counts from the four borings in the vicinity of 
the timber piles, the UES boring B-3 shows the most 
desirable blow count profile with depth. The sandy materials 
below the soft organic silt are all medium dense. The other 
three borings, CB-LCI03-10, B-2, and B-1, show a less 
desirable blow count profile with depth. However the blow 
count profiles for these three boring are nearly identical with 
the exception of one anomalous blow count in boring 
CB-LCI03-10 (N=26 at an elevation of -24 feet). 
(R4, tab 33 at 952) 
15 

48. According to ACO Tolle, pile length is determined by a number of factors 
including "geotechnical wind loading, dead loading, friction factors, uplift," safety factor 
and others (tr. 2/126). To have its piles approved, OSI's Static Pile Capacity Analysis 
submittal must demonstrate that its designer's calculations adequately took into 
consideration the various analysis criteria outlined in EM Ill 0-2-2906 (see finding 9). 
49. Dr. Hudyma's report has not been rebutted. OSI did not call a witness from 
UES or a soils expert to explain how UES' material classification on borings B-1, B-2 
and B-3 differed materially from that shown in the contract boring CB-LCI03-10. We 
find that the muck found between Sta. 2+86 to Sta. 3+86 did not extend into the area 
where the new weir structures were to be built. Nor did OSI call its pile designer from 
CBC to explain its redesign starting 
with 50' piles and finally ending with 1 00' piles. We 
are not told whether and to what extent UES' borings made a difference. Finally, OSI 
has not challenged the Corps' reviews and comments on the Static Pile Capacity Analysis 
calculations provided with its submittals. 
50. There is in the record an engineering report dated 18 October 2010 submitted 
by CBC. The purpose of this report was to "provide circumstances chronologically 
relating to the differing site conditions which resulted in four ( 4) separate designs for the 
[weir] structures." (R4, tab 244 at 2330) While the report stated that CBC used UES' 
borings and EM 1110-2-2906 to come up with the 78-foot timber pile design, used "net" 
skin friction to come up with the 94-foot pile design, and finally used a safety factor of 
3.0 to come up with over 100-foot pile design, the report did not explain how the soil 
characteristics shown in UES' borings differed from those shown in CB-LCI03-10 (id.). 
While CBC's multiple redesigns resulted from the Corps' reviews, the report did not 
challenge the validity of the Corps' review as exceeding the design parameters called for 
by EM Ill 0-2-2906. OSI did not call the CBC designer as a witness to explain what 
specifically drove the need for the repeated redesign. 
Summary o[Progress 
51. Aerial photographs of Lost Creek Island shows the progress of work between 
September 2009 and May 2010. The aerial photograph shows that by 18 September 
2009, OSI had cleared the site and was proceeding with the "embankment stage" of the 
work (WB, tab 7 at 3419-20; tr. 11106). The aerial photograph of21 October 2009 (when 
OSI announced that it was halting its design work until the area where the weir structures 
were to be built was investigated for DSC) shows OSI was still embanking, and the 
elevation at 
the north end where the weir structures were to be constructed was completed 
to Elevation 0 (WB, tab 7 at 3421; tr. 11107). The aerial photograph of 19 November 
2009 Gust after OSI submitted its 78-foot pile design based on UES's borings) shows OSI 
was still in the process of embanking, and was installing filter material (WB, tab 7 at 
3423; tr. 11108). The aerial photograph of21 December 2009 shows the embankment 
being close to completion, "except for the area" where the weir structures were to be 
16 

constructed (WB, tab 7 at 3426; tr. 11108). The aerial photograph of20 April2010 
shows the pilings and the weir structures were installed, the walkway was being installed, 
and the crane was being disassembled (WB, tab 7 at 3430; tr. 11110). Around 
19-20 February 2010, OSI began to seed the area (WB, tab 7 at 3428; tr. 11109). 
52. Thus, when measured against OSI's planned bar chart schedule, it completed 
the weir and outfall installation on or about 20 April 20 I 0 as opposed to 6 October 2009, 
the embankment/dike construction sometime prior to 20 May 2010 (WB, tab 7 at 3431) 
as opposed to 13 November 2009, and seeding around 20 February 2010 as opposed to 
28 November 2009. According to OSI, the project was completed in about 480 days as 
opposed to the 324-day contract performance period, or about five months (480 days-
324 days) late (tr. 1193). 
Claim and CO Decision 
53. By letter dated 10 May 2010, OSI submitted to ACO Tolle an equitable 
adjustment proposal for $2,297,066.45 plus a five-month time extension. The proposal 
was not certified as a claim but sought a meeting with the CO and the Deputy District 
Engineer to try to negotiate a settlement on two issues relating to "[ 1] the Differing Site 
Conditions and [2] Delays in approval of submittals by the government." (WB, tab 66 at 
832, 837) OSI's proposal assigned responsibility for the delays encountered in 
completing the upland disposal area to the Corps. OSI appeared to contend not only did 
it encounter a DSC between Sta. 2+86 and Sta. 3+86, but in the area where the weir 
structure was built, and this, in turn, caused delay in redesigning the proper piling for the 
weir structures: 
Clearly the delay was precipitated by the Differing Site 
Condition which required Geotechnical review by the owner, 
designing an approach for resolution, pricing of the change, 
accomplishing corrective work (Muck removal) in stages, 
accomplishing new testing, development of a new design, and 
the approval process of the new design which was changed as 
a result of the Differing Site Condition. 
Little did anyone know at this time that the material 
encountered was going to require wood pilings 99' long! This 
would also require a complete new design including the totally 
unanticipated use of helical anchors and additional time for 
resolution of the design and approval of the system and design. 
17 

(!d. at 834) OSI did acknowledge that "[ o ]nee we were all in the middle of a 
redesign ... the government probably was reasonable in not returning the submittals with 
the appropriate comments as they did not expect them to be used." (!d. at 834-36) 
54. CO Griselle Gonzalez (CO Gonzalez) rejected OSI's 10 May 2010 equitable 
adjustment proposal and issued her notice of intent to issue a CO decision (WB, tab 78). 
By letter dated 29 November 2010, OSI requested that the CO issue a decision and 
provided its claim certification (WB, tab 83). 
55. CO Gonzalez issued her decision by letter dated 4 March 2011 (WB, tab 6). 
The decision summarized OSI's claim as follows: 
Optimum claims it was required to stop work from 
September 28, 2009 until January 29, 2010 in the area where 
the weirs were to be constructed while a 
workable design was 
being developed to address the DSC identified on 
September 23, 2009. According to Optimum, it experienced 
methodology changes due to the DSC and untimely submittal 
reviews by the Government. 
(!d. at 13) In denying the claim, the CO addressed three issues: (1) Differing Site 
Conditions; (2) Submittal Review and Approval; and (3) Concurrent Delay (id. at 19-21). 
On the DSC issue, the CO took the position there were actually two potential DSCs under 
which OSI "gave two separate notices, the Government initiated two separate 
investigations, and two different results were found" (id. at 19). On the DSC that OSI 
provided notice on 23 September 2009, the CO acknowledged the muck "was not a 
natural feature, but rather was due to the deposit and settling of fine sediments from 
previous dredging operations" (id. at 19). As to this DSC, the CO concluded that 
"Contract Modification P00004 ... was executed to fully compensate Optimum for the 
additional cost and delay associated with DSC No. 1" (id. at 20). The CO considered 
OSI to have given a second notice of DSC when it told the Corps it was stopping work on 
the weir structure design until the Corps conducted an additional investigation to 
determine if the DSC extended to the weir area. Given that no DSC was found, the CO 
concluded that Modification P00005 "fully 
addressed the costs for the geotechnical 
investigation and any reevaluation or redesign required for the weir structure" (id. at 20). 
On the submittal review issue, the CO concluded that when OSI decided to stop 
designing unless it was shown that there was no DSC in the area where the weirs were to 
be built, it was reasonable for the Corps to 
wait until OSI provided a revised submittal 
package or was notified that there would be no change to the existing submittal (id. at 
21 ). On concurrent delay, the CO contended even if the Corps delayed returning the 
submittal drawings, OSI was 
unable to produce an approvable design for the weir system 
18 

(1) prior to notifying the Corps it was stopping design work and (2) after it was found no 
DSC existed (id. ). 
56. OSI appealed the CO's decision by notice dated 28 March 2011. The Board 
docketed the appeal as ASBCA No. 57575. 
DECISION 
Has OS! Proved the Existence o[a Differing Site Condition at the New Weir 
Location? 
OSI contends that it encountered a Type I DSC, and that the DSC extended into 
the weir area (app. br. at 29). As proof of the DSC, OSI contends that based upon the 
contract boring CB-LCI03-10, it originally designed two 55-foot timber piles6 for each 
weir, and as a result of additional borings by UES, CBC, its designer, ultimately had to 
redesign four 100-foot plus timber piles for each weir (id. at 31 ). The Corps' brief 
acknowledges that OSI did encounter a DSC referred to as "muck" located in a small 
50-foot by 100-foot area, but contends that the DSC did not extend into the area where 
the weir structures were to be built (gov't br. at 30). The Corps tells us that the only 
qualified expert, Dr. Hudyma, opined that the soil characteristics shown in contract 
boring CB-LCI03-10 did not differ materially from those shown by UES' borings, and 
Dr. Hudyma did not observe muck in the UES' borings (finding 46). 
Because the parties bilaterally dealt with the muck DSC in the contained 50-foot 
by 100-foot area between Sta. 2+86 and Sta. 3+86 through Modification P00004, we 
agree with the Corps that whether a DSC existed in the area where the weir structures 
were to be built was a separate and unrelated DSC issue. A Type I DSC consists of 
"subsurface or latent physical conditions at the site which differ materially from those 
indicated in [the] contract." FAR 52.236-2. To establish entitlement to an equitable 
adjustment due to a Type I DSC, a contractor must prove, by a preponderance of the 
evidence, that: 
[T]he conditions indicated in the contract differ materially 
from those actually encountered during performance; the 
conditions actually encountered were reasonably 
unforeseeable based on all information available to the 
contractor at the time of bidding; the contractor reasonably 
relied upon its interpretation of the contract and 
contract-related documents; and the contractor was damaged 
6 Although OSI says that CBC initially designed 55-foot piles, CBC's calculation 
indicates that it designed 50-foot piles: "TOTAL LENGTH OF PILE= 25' + 25' = 
50' LENGTHS" (WB, tab 12 at 2040). 
19 

as a result of the material variation between expected and 
encountered conditions. 
Comtrol, Inc. v. United States, 294 F.3d 1357, 1362 (Fed. Cir. 2002) (citing HB. Mac, 
Inc. v. United States, 153 F.3d 1338, 1345 (Fed. Cir. 1998)). 
To recover under a Type I DSC claim, the contractor bears the burden of proof 
showing that conditions actually encountered differed materially from those "indicated" 
in the contract. Foster Constr. C.A. & Williams Bros. Co. v. United States, 435 F.2d 873, 
881 (Ct. Cl. 1970). A contractor cannot be eligible for an equitable adjustment for Type I 
changed conditions unless the contract indicated what those conditions would supposedly 
be. P.J. Maffei Bldg. Wrecking Corp. v. United States, 732 F.2d 913, 916 (Fed. Cir. 
1984); S.T.G. Construction Co. v. United States, 157 Ct. Cl. 409, 414 (1962). Contract 
borings are the most significant indicator of subsurface conditions. Nova Group, Inc., 
ASBCA No. 55408, 10-2 BCA ~ 34,533 at 170,322. 
In comparing the three UES borings with contract boring CB-LCI03-10, 
Dr. Hudyma found "consistency in materials with depth." He found that CB-LCI03-10 
showed poorly graded sand with localized zones of sand below the soft silt layer. He 
found UES' boring B-3 showed "almost identical" material, with sandy materials (SP) 
with an upper zone without shells and with a lower zone with shells. In B-1 and B-2, he 
found sandy materials below the soft silt layer. (Finding 46) 
Blow counts are used to determine soil properties for geotechnical design. Blow 
counts would impact uplift analysis because soil shear strength parameters are based on 
blow counts. (Finding 4 7) In comparing the UES blow counts with the blow counts 
shown in CB-LCI03-1 0, Dr. Hudyma found UES borings B-1 and B-2, closest to the new 
weir location, and CB-LCI03-1 0 were "nearly identical with the exception of one 
anomalous blow count in boring CB-LCI03-10." UES B-3 showed more favorable blow 
counts for pile design purpose than CB-LCI03-10. (Finding 47) 
Dr. Hudyma's findings have not been effectively challenged. OSI did not call a 
witness from UES or a soils expert to explain how UES' material classification on 
borings B-1, 
B-2, and B-3 differed materially from that shown in CB-LCI03-10 
(finding 49). Significantly, Dr. Hudyma did not find in UES' borings any muck 
prevalent between Sta. 2+86 and Sta. 3+86 (finding 46). 
We conclude that OSI has failed to prove the existence of a DSC at the location 
where the new weir structures were built. 
20 

Has OS! Proved Delay Caused by the Corps' Submittal Review? 
OSI contends next that the Corps failed to timely review and return submittals 
(app. br. at 32). OSI tells us that its Static Pile Capacity Analysis (timber pile design) 
was submitted on 9 September 2009 and a complete hard copy with comments made on 
the drawings was not returned 
until25 November 2009, 77 days later (id. at 33). OSI 
contends 
that it submitted its flashboard riser system submittals - another component of 
the weir system- on 28 August 2009 and a complete hard copy with comments made on 
the drawings was not returned 
until25 November 2009, 89 days later (id. at 34). 
The contract required submittals covering component items forming a system or 
items that were interrelated be submitted concurrently (finding 1 0). This requirement 
was to enable the Corps to find potential conflicts between designs, and to see how 
various components of a design would work together. Reviewing components of a 
system piecemeal could actually take longer because the reviewer would have to go back 
and see how components fit with the rest of the system. (Finding 11) The contract gave 
the Corps 30 calendar days from the date of receipt to review, code, and return 
comments, and the contractor had 10 calendar days to resubmit any returned submittals 
requiring resubmission (finding 10). The 30-day review period presupposed complete 
submission of interrelated components (finding 10). To the extent the Corps chose to 
review piecemeal submittals as an accommodation to OSI this accommodation did not 
impose on the Corps a 30-day review obligation as if OSI submitted all components of an 
interrelated system completely and concurrently (finding 11). 
OS I' s argument that it was delayed did not take into account its own actions that 
caused the Corps to put its review ofOSI's submittals on hold. In this case, OSI did not 
submit the weir system components, including the timber pile design and the weir riser 
system concurrently in a coordinated fashion as required by the contract (findings 10, 
15-17). But, even assuming, arguendo, that OSI submitted complete submittals for the 
entire new weir system on 9 September 2009, the Corps would have 30 calendar days or 
until9 October 2009 to review, code and return comments to OSI. With OSI's submittal 
coded "C" by the Corps on 18 September 2009 (finding 15), requiring resubmission in 
10 calendar days, the Corps' final approval could not be obtained until at least 19 October 
2009. By then, on 23 September 2009, over three weeks earlier, muck was discovered 
between Sta. 2+00 and Sta. 4+00. The Corps investigated and agreed 
that OSI 
encountered a DSC in a 50-foot by 100-foot area between Sta. 2+86 and Sta. 3+86, and 
OSI's designer, CBC, however, expressed concern on or about 13 October 2009 that the 
muck might extend to the area where the new weir structures were to be built 
(finding 26). OSI then notified the Corps on 21 October 2009 that it was not going to do 
any more design work until there was a geotechnical investigation of the area where the 
weir structures and the walkway were to be built (finding 30). 
21 

OSI has acknowledged that "[ o ]nee we were all in the middle of a redesign ... the 
government probably was reasonable in not returning the submittals ... as they did not 
expect them to be used" (finding 53). In light of the foregoing, we conclude that the 
Corps acted reasonably in not returning OSI's submittals until such time when (1) a DSC 
was found in the weir area to be investigated and OSI submitted a 
redesign or, (2) a DSC 
was not found and the Corps could resume its review of the submittals already provided. 
As it turned out, without sufficient justification that a DSC existed at the location 
where the weir structures were to be built, and based on UES' borings, CBC went ahead 
to redesign the timber piles (before Modification P00005 was signed). OSI transmitted a 
new Static Pile Capacity Analysis (or new pile design) submittal on 20 November 2009 
(finding 38). In doing so, OSI reset the Corps' 30-day review clock to 20 December 
2009. Between 20 November 2009 and 23 December 2009, CBC redesigned the piles 
two more times (findings 38, 39), and the parties began to explore using other anchoring 
devices to avoid the lead time necessary to procure non-stocked extra-long timber piles 
(findings 40-43). These developments rendered continued review ofOSI's original 
9 September 2009 Static Pile Capacity Analysis (pile design) a useless endeavor or, as 
the Corps put it, a "moot" point (gov't br. at 36). 
Even though the contract specified timber piles, the specifications assigned to OSI 
the task of designing the appropriate timber piles to support the new weir structures. We 
conclude that the specifications are of the performance variety. Penguin Industries, Inc. 
v. United States, 530 F.2d 934, 937 (Ct. Cl. 1976) (holding specifications to be 
performance type where a contract left to contractor the duty of using its own judgment 
and experience in determining how to manufacture certain aspects of cartridge). Here, 
Section 31 62 20, ~ 3 .1.2 of the specifications does not specify the size or length of the 
timber piles to use. OSI was told that it could choose a design of either 2 or 4 piles per 
weir. Based on the use of static analysis method outlined in EM 1110-2-2906, the timber 
pile specifications let OSI's designer determine the tip elevations, and hence the length, 
of the piles. OSI and its designer, were expected to design the appropriate piles that 
would resist uplift, consider wind load, and include a proper safety factor. (Finding 9) 
In designing the timber piles, OSI's designer was unable to get it right. CBC's 
first design calling for two 50-foot piles per weir was approved with the qualification that 
it must be resubmitted for final approval due to inadequate wind loading (fmding 15). 
CBC's first redesign calling for four 78-foot piles per weir was disapproved for incorrect 
uplift calculations (finding 38). Its second redesign calling for four 94-foot piles per weir 
was not approved for failing to use the right safety factor (finding 39). Its third redesign 
calling for four 100-foot plus piles per weir was abandoned in favor of using timber piles 
in combination with helical anchors (finding 44). OSI's pile designer, CBC, did not 
testify. Nor did CBC challenge the Corps' comments on various submittals as erroneous 
but accepted the comments and made the necessary corrections. 
22 

Despite the Corps' failure to return the marked-up submittal drawings and its 
"misrouting," we conclude that the delays in having the disposal area completed were 
driven primarily by ( 1) OS I' s piecemeal submissions of its weir system submittals; (2) 
OS I' s unwarranted decision to suspend its design efforts pending a geotechnical 
investigation of the area where the new weir structures were to be built, (3) CBC, OSI's 
designer's decisions to redesign the timber piles without sufficient justification that a 
DSC existed at the location where the new weir structures were to be built; and (4) CBC, 
OS I' s designer's repeated inability to properly design acceptable timber piles. 
Jurisdiction Over OSI's Defective Specification Argument 
OSI argues that the specifications were defective in that (1) they required the use 
of timber piles, and (2) they required the use of 100-foot plus timber piles whose 
four-month lead time to obtain would consume the entire four months ( 116 days) OSI had 
to complete the base item of the contract (app. br. 28-29). The Corps urges us not to 
consider this argument because OSI did not raise the issue of defective specifications in 
its certified claim, and "[n]one of the serial letters or other correspondence in the record 
discusses defective specifications" (gov't br. at 28). 
The CDA requires all claims by a contractor be submitted to the CO for decision. 
41 U.S.C. § 7103(a)(l). We lack jurisdiction over claims raised for the first time on 
appeal, in a complaint or otherwise. Versar, Inc., ASBCA No. 56857, 10-1 BCA 
,-r 34,437 at 169,957. Whether a claim before the Board is new or essentially the same as 
that presented to the CO depends upon whether the claims derived from common or 
related operative facts. The requirement that the appeal brought before us be based on 
the same claims previously presented to and denied by the CO "does not require ridged 
[sic] adherence to the exact language 
or structure of the original administrative CDA 
claim" if the claim "arise[ s] from the same operative facts, claim essentially the same 
relief, and merely assert differing legal theories for that recovery." Scott Timber Co. v. 
United States, 333 F.3d 1358, 1365 (Fed. Cir. 2003); see also The Public Warehousing 
Co., ASBCA No. 56022, 11-2 BCA ,-r 34,788 at 171,228. 
Here, OSI's claim and the CO's decision were based on three issues: (1) whether 
a DSC existed at the location where the weir structures were built; (2) whether the Corps 
delayed returning the OSI's weir system submittals; and (3) whether OSI was responsible 
for concurrent delays even ifthe Corps delayed returning the weir system submittals. 
The operative facts relating to these issues centered upon the subsurface soil conditions at 
the location where the weir structures were built and the submittal review process. The 
operative facts of these issues were separate and distinct from any facts relating to 
whether piles made out of timber were suitable or appropriate for anchoring the weir 
structures and from any facts surrounding the timber piles' availability which was not 
specified. 
23 

We conclude that OS I' s defective specification argument, presented for the first 
time as a part of its opening statement, involved different operative facts from those 
presented in its claim to the CO for decision. Consequently, we have no jurisdiction over 
OSI's defective specification claim. 
CONCLUSION 
Because (1) OSI failed 
to prove that a DSC existed at the location where the weir 
structures were built, (2) OSI was responsible, in whole or in part, for the weir system 
submittal delays, and (3) the Board has no jurisdiction over OS I' s belated defective 
specification argument, we deny the appeal. 
Dated: 10 September 2013 
I concur 
~~· 
Administrative Judge 
Acting Chairman 
Armed Services Board 
of Contract Appeals 
... 
24 
Administrative Judge 
Armed Services Board 
of Contract Appeals 
I concur 
c '~----------~ 
Administrative Judge 
Acting Vice Chairman 
Armed Services Board 
of Contract Appeals 

I certify that the foregoing is a true copy of the Opinion and Decision of the 
Armed Services Board of Contract Appeals in ASBCA No. 57575, Appeal of Optimum 
Services, Inc., rendered in conformance with the Board's Charter. 
Dated: 
25 
JEFFREY D. GARDIN 
Recorder, Armed Services 
Board of Contract Appeals