David Boland, Inc.
Docket: ASBCA 59313, ASBCA 60294
Decision date: 2024-09-20

ARMED SERVICES BOARD OF CONTRACT APPEALS 
 
OPINION BY ADMINISTRATIVE JUDGE CATES-HARMAN 
 
These appeals arise from a U.S. Army Corps of Engineers (USACE or Corps) 
contract awarded to David Boland, Inc. (Boland or appellant) to construct T-wall and 
I-wall as part of a flood prevention project in New Orleans, Louisiana.  Boland 
brought this appeal on behalf of its primary subcontractor, Target Construction, Inc. 
(Target).  On July 1, 2011, Boland filed its initial claim seeking $10,397,574 for the 
increase in Target’s total direct costs relating to alleged delays caused by passing 
trains between August 7, 2010 and May 21, 2011 (ASBCA No. 59313).  On 
November 4, 2014, the claim was revised downward to $7,892,922, including 
additional costs incurred by Boland (ASBCA No. 60294).  Boland’s revised claim is 
based upon the same set of facts as its first, but this submission utilized a modified 
total cost methodology.  The contracting officer (CO) issued a final decision on 
July 23, 2015, which Boland appealed to the Board on October 16, 2015.  The Board 
has jurisdiction over these appeals under the Contract Disputes Act of 1978, 41 U.S.C. 
§§ 7101-7109.  A three-day hearing was held in New Orleans.  Only entitlement is 
before the Board for decision.  For the reasons stated below, we deny the appeals. 
 
Appeals of - )  
 )  
David Boland, Inc. ) ASBCA Nos. 59313, 60294 
 )  
Under Contract No. W912P8-10-C-0079 )  
   
APPEARANCES FOR THE APPELLANT: Daniel Lund, III, Esq.  
  Phelps Dunbar 
  New Orleans, LA 
 
Denis L. Durkin, Esq. 
Michael S. Vitale, Esq. 
  Baker & Hostetler LLP 
  Orlando, FL 
 
APPEARANCES FOR THE GOVERNMENT: Michael P. Goodman, Esq. 
    Engineer Chief Trial Attorney 
 William G. Meiners, Esq. 
    Engineer Trial Attorney 
    U.S. Army Engineer District, New Orleans 

2 
 
FINDINGS OF FACT 
 
Solicitation and Award 
 
1.  On March 5, 2010, USACE issued Solicitation No. W912P8-10-B-0054 (R4, 
tab 75 at GOV001674).  This solicitation sought firms interested in performing work 
pursuant to USACE’s Lake Pontchartrain and Vicinity (LPV) Hurricane Protection 
Project, Lakefront Airport T-Walls, LPV 105.02 East Reach (R4, tab 75 
at GOV001670-71).  The work specified in the solicitation involved the replacement 
and construction of floodwalls along Haynes Boulevard in New Orleans, Louisiana 
(id. at GOV001676). 
 
2.  On May 13, 2010, USACE awarded Boland Contract No. W912P8-10-C-
0079 for the completion of specific flood prevention work in the amount of 
$19,472,000.  The contract incorporated the solicitation (R4, tab 39 at GOV000958; 
tab 75 at GOV001674-80). 
 
3.  The contract required the construction of approximately 5,700 feet of T-wall 
and approximately 2,200 feet of I-wall (tr. 1/21-22; R4, tab 75 at GOV001671).  This 
entailed structural concrete work, pile driving, and earthwork on a site adjacent to two 
operational railroad tracks (see id. at 1/21-22; R4, tab 75 at GOV002219, 
GOV002254, GOV002437). 
 
4.  The railroad tracks adjacent to the worksite were under the control of the 
Alabama Great Southern Railroad Company (the Railroad)), which, according to the 
parties, is a subsidiary of Norfolk Southern Railway Company (Norfolk Southern) (see 
R4, tab 10 at GOV000088; tab 75 at GOV001824-25, GOV001934; gov’t statement of 
undisputed material facts in support of its motion for summary judgment at ¶ 8 and 
app. resp. at ¶ 8). 
 
5.  The contract incorporated via full text Federal Acquisition Regulation (FAR) 
52.243-4, CHANGES (JUN 2007) (the Changes Clause).  The Changes Clause 
provided: 
 
(a) The Contracting Officer may, at any time, without 
notice to the sureties, if any, by written order designated or 
indicated to be a change order, make changes in the work 
within the general scope of the contract including 
changes— 
 
(1) In the specifications (including drawings and 
designs); 
 

3 
 
(2) In the method or manner of performance of the work; 
 
(3) In the Government-furnished property or services; or 
 
(4) Directing acceleration in the performance of the work. 
 
(b) Any other written or oral order (which, as used in this 
paragraph (b), includes direction, instruction, 
interpretation, or determination) from the Contracting 
Officer that causes a change shall be treated as a change 
order under this clause; provided, that the Contractor gives 
the Contracting Officer written notice stating 
 
(1) the date, circumstances, and source of the order and 
 
(2) that the Contractor regards the order as a change 
order. 
  
(c) Except as provided in this clause, no order, statement or 
conduct of the Contracting Officer shall be treated as a 
change under this clause or entitle the Contractor to an 
equitable adjustment. 
 
(d) If any change under this clause causes an increase or 
decrease in the Contractor’s cost of, or the time required 
for, the performance of any part of the work under this 
contract, whether or not changed by any such order, the 
Contracting Officer shall make an equitable adjustment 
and modify the contract in writing.  However, except for 
an adjustment based on defective specifications, no 
adjustment for any change under paragraph (b) of this 
clause shall be made for any costs incurred more than 20 
days before the Contractor gives written notice as required.  
In the case of defective specifications for which the 
Government is responsible, the equitable adjustment shall 
include any increased cost reasonably incurred by the 
Contractor in attempting to comply with the defective 
specifications. 
 
(e) The Contractor must assert its right to an adjustment 
under this clause within 30 days after 
 

4 
 
(1) receipt of a written change order under paragraph (a) of 
this clause or  
 
(2) the furnishing of a written notice under paragraph (b) 
of this clause, by submitting to the Contracting Officer a 
written statement describing the general nature and amount 
of the proposal, unless this period is extended by the 
Government.  The statement of proposal for adjustment 
may be included in the notice under paragraph (b) above. 
 
(f) No proposal by the Contractor for an equitable 
adjustment shall be allowed if asserted after final payment 
under this contract. 
 
(R4, tab 75 at GOV001771) 
 
6.  The contract incorporated via full text FAR 52.249-10, DEFAULT (FIXED-
PRICE CONSTRUCTION) (APR 1984) (the Default clause).  The Default clause 
provided in relevant part: 
 
(b) The Contractor’s right to proceed shall not be 
terminated nor the Contractor charged with damages under 
this clause, if— 
 
(1) The delay in completing the work arises from 
unforeseeable causes beyond the control and without the 
fault or negligence of the Contractor.  Examples of such 
causes include 
 
. . . .  
 
(x) unusually severe weather, or delays of subcontractors 
or suppliers at any tier arising from unforeseeable causes 
beyond the control and without the fault or negligence of 
both the Contractor and the subcontractors or suppliers . . 
. . 
 
(R4, tab 75 at GOV001782-83) (emphasis added) 
 

5 
 
7.  The contract incorporated via full text FAR 52.236-15, SCHEDULES FOR 
CONSTRUCTION CONTRACTS (APR 1984) (R4, tab 75 at GOV001767-68).  This 
clause provided, in relevant part: 
 
(b)The Contractor shall enter the actual progress on the 
chart as directed by the Contracting Officer, and upon 
doing so shall immediately deliver three copies of the 
annotated schedule to the Contracting Officer.  If, in the 
opinion of the Contracting Officer, the Contractor falls 
behind the approved schedule, the Contractor shall take 
steps necessary to improve its progress, including those 
that may be required by the Contracting Officer, without 
additional cost to the Government.  In this circumstance, 
the Contracting Officer may require the Contractor to 
increase the number of shifts, overtime operations, days of 
work, and/or the amount of construction plant, and to 
submit for approval any supplementary schedule or 
schedules in chart form as the Contracting Officer deems 
necessary to demonstrate how the approved rate of 
progress will be regained. 
 
(Id.) (emphasis added) 
 
8.  The contract incorporated via full text Defense Federal Acquisition 
Regulation Supplement (DFARS) 252.236-7000, MODIFICATION PROPOSALS – 
PRICE BREAKDOWN (DEC 1991).  Paragraph (d) of this clause provided that “[t]he 
Contractor’s proposal shall include a justification for any time extension proposed.”  
(R4, tab 75 at GOV001796) 
 
9.  The contract specifications required all work for the project to be completed 
within 375 days of Boland’s receipt of the notice to proceed (NTP), which fell in early 
June 2011 (R4, tab 75 at GOV 001674; tr. 1/23-25).  The LPV 105.02 project was 
considered to be part of the “hundred year level achieved” (HYLA) projects, a 
reference to the new system that was designed at a certain elevation to protect against 
the 100-year level storm (tr. 3/56-58).   
 
10.  The contract specifications required Boland to submit a construction 
schedule in the form of a Critical Path Method (CPM) within 10 calendar days after 
issuance of the NTP for USACE approval.  The CPM was to be updated monthly and 
accurately reflect progress on the job.  The contractor was also required to provide a 
comprehensive narrative report with each schedule update. (R4, tab 75 
at GOV001946-48). 

6 
 
11.  The contract contained a liquidated damages clause imposing a $4,100 per 
day penalty for each day of delay past the deadline (R4, tab 75 at GOV001692; see 
also tr. 1/25). 
 
Working Adjacent to the Railroad 
 
12.  The contract specifications included several provisions that described 
working next to active railroad tracks (see, e.g., R4, tab 75 at GOV001835-37 
(“Cooperation and Delays,” “Trainman’s Walkways,” “Guidelines for Personnel on 
Railroad Right-of-Way,” and “Guidelines for Equipment on Railroad Right-of-Way”); 
GOV001842-43 (“Approximate Train Frequencies and Track Time”)). 
 
13.  Subparagraph (b) of Section 01100, ¶ 20, “Work on or Adjacent to 
Railroad” required, among other items, that the contractor shall fully coordinate 
his/her work with the operations of the Railroad Companies.  Subparagraph (c) of this 
provision required the contractor to comply with the regulations and requirements of 
the attached “Special Provisions for Protection of Railway Interest.” Subparagraph (d) 
required the contractor to perform all work adjacent to or on the Railroad’s property 
“so as not to interrupt or delay the operation of trains over the tracks in use, or to 
interfere with communications and signal lines adjacent to said tracks or upon said 
premises except under arrangements between the Contractor and the Railroad 
Companies.”  (R4, tab 75 at GOV001865-66) 
 
14.  Norfolk Southern granted a right-of-way under the limited circumstances as 
set forth in the “Special Provisions for Protection of Railway Interest” for the purpose 
of constructing that portion of the LPV 105.02 construction project located on the 
Railroad’s right-of-way or property. (R4, tab 75 at GOV001824-1844)  On April 6, 
2010, USACE issued Solicitation Amendment No. 0005 revising “Section 0800 
Special Contract Requirements “ – “Special Provisions for Protection of Railway 
Interest,”  making changes to paragraph 14 “Insurance” and repeating the extensive 
conditions related to work on or near the railroad: 
 
3.  INTERFERENCE WITH RAILROAD OPERATIONS 
 
A.  The Contractor shall so arrange and conduct his work 
that there will be no interference with Railroad operations, 
including train, signal, telephone and telegraphic services, 
or damage to the property of the Railroad Company or to 
poles, wires, and other facilities of tenants on the rights-of-
way of the Railroad Company. Whenever work is liable to 
affect the operations or safety of trains, the method of 
doing such work shall first be submitted to the Railroad 
Engineer for approval, but such approval shall not relieve 

7 
 
the Contractor from liability. Any work to be performed by 
the Contractor which requires flagging service or 
inspection service shall be deferred by the Contractor until 
the flagging service or inspection service required by the 
Railroad is available at the job site. The Contractor shall 
also coordinate all activities with the Railroad to avoid 
project delay and will make no claim against Railroad for 
any delays due to normal or reasonable Railroad 
operations. The Contractor shall perform all work on or 
adjacent to the Railroad's right of way or property in 
accordance with the plans submitted to the Railroad and 
at such a time and in a manner that does not create a safety 
hazard. 
 
B.  Whenever work within Railroad rights-of-way is of 
such a nature that impediment to Railroad operations such 
as use of runaround tracks or necessity for reduced speed is 
unavoidable, the Contractor shall schedule and conduct his 
operations so that such impediment is reduced to the 
absolute minimum. 
 
C.  Should conditions arising from, or in connection with 
the work, require that immediate and unusual provisions be 
made to protect operations and property of the Railroad, 
the Contractor shall make such provisions. If in the 
judgment of the Railroad Engineer, or in his absence, the 
Engineer, such provisions are insufficient, either may 
require or provide such provisions as he deems necessary. 
In any event, such unusual provisions shall be at the 
Contractor’s expense and without cost to the Railroad or 
the Corps. 
  
D.  Any authorized Railroad official, employee, or agent 
has the right to stop any activity of Contractor if such 
activity may cause imminent danger to the Railroad, or if 
such activity may cause imminent danger to the 
Contractor's personnel, equipment, material or facilities 
due to the Railroad's operation. The Contractor shall be 
prohibited from engaging in an activity that may cause 
imminent danger to the Railroad, the Contractor’s 
personnel, equipment, materials or facilities due to the 
Railroad’s operation. 
 

8 
 
E.  The Railroad has and retains the right to fully enjoy and 
utilize any and all of its right of way or property, including 
those portions upon which the levee, floodwall, and/or 
floodgate is to be constructed, for its railroad operations 
and facilities and the location and extension of such 
additional facilities and structures as the Railroad deems 
useful or convenient, including, but not limited to, the right 
to construct, operate and maintain a track or tracks at any 
point or points through the levee, floodwall, and/or 
floodgate to the south to serve industries or for other 
purposes, and the rights of Railroad in its right of way or 
property shall not be impaired or restricted by the 
construction, maintenance, use or existence of the said 
protection levee, floodwall, and/or floodgate, its 
appurtenances, accessories, works and facilities, except 
that Railroad shall not hereafter use that portion of its said 
right of way or property upon which the protection levee, 
floodwall, and/or floodgate is constructed in such a manner 
as to decrease the height of the levee, floodwall, and/or 
floodgate or endanger its stability.
   
 
(R4, tab 10 at 1-22; R4, tab 10 at GOV000089-94) 
 
15.  The contract specifications warranted that between 10 and 15 trains would 
pass through the project site per day, and amendments to the solicitation warned 
bidders to “expect 10-15 work stoppages per day.” (R4, tabs 75 at GOV001842; 7 
at GOV000038; 11 at GOV000116).  The clause “Special Provisions for Protection of 
Railway Interests,” Appendix A, Outline of Specific Work Conditions” provided in 
relevant part: 
 
1.  Approximate Train Frequencies and Track Time 
 
a.  The tracks are used by freight trains (AGS) and 
passenger trains (Amtrak).  There are between 10 and 15 
(2 Amtrak) trains per day split about equally between the 
north bound and south bound tracks. 
 
b.  A work window is set up for 8AM to 12PM (noon) on 
all days except rail holidays on the north bound track (the 
track closest to the City).  Any track time that may be 
given on the south bound track (the one closest to the 
Lake) or outside the work window on the north bound 
track will be done purely based on the needs of the 

9 
 
Railroad.  The term of this said work window shall begin 
on the first day on which the OLD/Corps/Contractor 
begins its construction work on the Project on the right of 
way or property and extend for two (2) years thereafter. 
Each day the Corps/Contractor shall be required to present 
themselves to the flagman so that the flagman may then 
each day formally request track time during the said work 
window. If on a particular day the Corps/Contractor does 
not present themselves to the flagman by 8AM, then the 
track time will not be available [sic] that day. 
 
(R4, tab 75 at GOV001842-43) 
 
16.  Boland acknowledged that any track time outside the work window of 
8:00 a.m. to 12:00 p.m. or on the southbound track would be “given by the Railroad 
purely based upon the needs of the Railroad.”  It was always anticipated that there 
would be windows that work could not be performed.  (R4, tab 100 at DBI Disk 1 
00002753-54; tr. 1/205-06; 3/22-23) 
 
17.  The contract specifications identified “Permissible Hours of Work” and 
provided that: 
 
No work shall be done between 9:00 p.m. and 7:00 a.m. 
Monday through Friday, and between 9:00 p.m. and 8:00 
a.m. Saturday and Sunday.  The Contractor shall not start 
any equipment and shall not have any trucks - delivery, 
service, hauling, pile driving or extracting operations 
during the non-work hours. 
 
(R4, tab 75 at GOV001863) 
 
18.  Sections 12 and 13 of the “Special Provisions for Protection of Railway 
Interests” incorporated into the contract stipulated that work was to be halted while 
trains were passing.  These provisions provided in relevant part: 
 
12.  GUIDELINES FOR PERSONNEL ON RAILROAD 
RIGHT-OF-WAY 
 
. . . . . 
 
E.  All welders and cutting torches working within 25’ of 
track must stop when train is passing. 
 

10 
 
13.  GUIDELINES FOR EQUIPMENT ON RAILROAD 
RIGHT-OF-WAY 
 
A.  No crane or boom equipment will be allowed to set up 
to work or park within boom distance plus 15’ of 
centerline of track without specific permission from 
railroad official and flagman. 
 
. . . .  
 
D.  All cranes and boom equipment under load will stop 
work while train is passing (including pile driving). 
 
E.  Swinging loads must be secured to prevent movement 
while train is passing. 
 
. . . .  
 
J.  All operating equipment within 25’ of track must halt 
operations when a train is passing.  All other operating 
equipment may be halted by the 
flagman if the flagman views the operation to be dangerous 
to the passing train. 
 
(R4, tab 75 at GOV001835-37) 
 
19.  The contract specifications included a damages provision maintaining that 
“[t]he Contractor shall assume all liability for any and all damages to his work, 
employees, servants, equipment and materials caused by Railroad traffic.”  The 
specification also contained the following exculpatory language “Cooperation and 
Delays”: 
 
No charge or claim of the Contractor against either the 
Corps or the Railroad will be allowed for hindrance or 
delay on account of railway traffic; any work done by the 
Railroad or other delay incident to or necessary for safe 
maintenance of railway traffic or for any delays due to 
compliance with these special provisions. . . . 
 
(R4, tab 75 at GOV001831-5) 
 
 
 

11 
 
Pre-Bid Site Inspection 
 
20.  A pre-bid conference and site visit was held on March 17, 2010, and was 
attended by representatives from both Boland and Target (R4, tab 78 at GOV003261).  
Boland’s notes taken during the site visit, confirm that prospective bidders were 
advised that work could be expected to be stopped by passing trains 10 to 15 times per 
day except during the work window between 8:00 a.m. and 12:00 p.m. on the 
northbound track (see R4, tab 79 at DBI Disk 1 00001611). 
 
21.  Target estimated a one-hour loss of production per day due to trains 
passing through the worksite (R4, tab 170 at DBI Disk 3 00005303; tr. 1/176).  
Notably, Boland estimated a two-hour loss of production per day due to passing trains 
(app. supp. R4, tab 126 at GOV110489).
1   
 
22.  On the Railroad Protection Liability Application, Boland represented to the 
insurance company that it expected to encounter 15 trains per day (R4, tab 91; tr. 1/85-
86). 
 
Boland’s Subcontract with Target 
 
23.  During the preparation of Boland’s bid for the LPV-105.02 project, Boland 
prepared internal estimates to be used when evaluating the subcontractors’ bids.  
Boland’s estimate for the concrete work was $5,782,305.  Target’s bid to Boland for 
the concrete work was $4,054,434.  Boland’s internal estimate for the piling work was 
$9,280,413.  Target’s bid to Boland for the piling work was $8,063,303.  Accordingly, 
Target’s bid for concrete and piling work was $2,944,981 less than Boland’s internal 
estimates.  While Mr. Boland was not as confident in the piling estimate because the 
company did not perform that work on their own at that time, he was confident in the 
concrete estimate.  (R4, tabs 83, 84; tr. 1/80-83)   
 
24.  On May 26, 2010, Boland entered into a subcontact with Target in the 
amount of $9,057,913.45 “to furnish all labor and material and perform all work for 
Lake Pontchartrain and Vicinity, Hurricane Protection Project, Lakefront Airport T-
Walls LPV 105.02 . . . for Items Nos. 0001 through 0021 . . . .”  (R4, tab 8 at 
GOV000046).  The subcontract required Target to provide temporary flood protection, 
temporary retaining structures, truck wash-down racks, demolition, formwork for 
concrete, expansion joints and waterstops in concrete, reinforcing steel, cast-in-place 
structural concrete, clearing and grubbing, excavation, structural excavation and 
backfill, dewatering, embankment, steel sheet piling, steel H-piles, concrete pavement, 
surfacing (granular), modifications to existing utilities, bonnetless knife gate valves, 
 
1 For purposes of this decision, we treat appellant’s exhibits submitted prior to the 
hearing as its supplement to the government’s Rule 4 file (see Board Rule 4(b)).    

12 
 
concrete slope pavement, and concrete scour protection for Items Nos. 0001 through 
0021in accordance with Contract No. W912P8-10-C-0079.  (Id. at GOV000046, 
GOV000058).   
 
25.  Target was the prime subcontractor for the project (tr. 1/26).  Target also 
served as Boland’s prime subcontractor on the Bayou Segnette Project. Both projects 
were proceeding simultaneously.  (R4, tab 102; tr. 1/91-92) 
 
Boland’s Work Plan 
 
26.  By letter dated May 18, 2010, USACE issued a notice to proceed to 
Boland.  Boland confirmed receipt of the notice on May 24, 2010.  (R4, tab 40) 
 
27.  Pursuant to the contract’s requirements, Boland submitted a “Railroad 
Right of Way Workplan” (Work Plan) to USACE dated June 28, 2010 (R4, tab 100 at 
DBI Disk 1 00002744; app. supp. R4, tab 9 at GOV040512).  The Work Plan’s 
purpose was to “provid[e] a detailed description of the method, means and timing of 
the construction procedures, which Boland will be implementing during the on-site 
activities at the Lakefront Airport T-Walls LPV 105.02 East Reach project” (R4, 
tab 100 at DBI Disk 1 00002750; app. supp. R4, tab 9 at GOV040515; see also 
tr. 1/202-07). 
 
28.  Boland acknowledged in its work plan all Railroad restrictions as set forth 
in Appendix A to the contract.  Boland advised the government in its work plan that 
they would require flagman services for the duration of the project.  (R4, tab 100 at 
DBI Disk 1 00002753-54; tr. 1/205-06) 
 
29.  The Work Plan provided further detail on how work would be impacted by 
the railroad and the anticipated shutdowns when trains passed through the site: 
 
(3) Southern Piles 
 
The piles on the southern side of the T-wall are 
approximately twenty-seven feet from the centerline of the 
track and will be driven on a 3/1 batter which at times will 
require the crane boom and pile with leads to be extended 
over the southern track until the pile is driven. 
 
It will take approximately twenty five minutes to set the 
leads in place, drive the pile and remove the leads from the 
pile.  Therefore the flagman shall notify Boland of 
oncoming traffic so that Boland will not foul the tracks 
during pile installation.  During pile driving, we require 

13 
 
that the flagman provide thirty minutes notice of an 
upcoming train so that Boland can move the crane boom or 
complete the driving underway. 
 
All effort will be given to attempt to drive the southern 
batter piles between the allowable track time of 8:00 to 
12:00 AM. 
 
(4) Northern Piles 
 
Piles on the North side of the T-wall are on a 4/1 batter 
extending away from the tracks.  During this operation 
neither the crane boom or piling will extend over to be 
within 20 feet of the southern track. 
 
A flagman will be required during installation of these 
piles to notify the crew of oncoming trains, so that the pile 
driving operation can cease during times when trains are 
passing. 
 
(R4, tab 100 at DBI Disk 1 00002783-84; app. supp. R4, tab 9 at GOV040548-
49) 
 
30.  The Work Plan provided that the Railroad’s authorized representative—the 
flagger or flagman assigned to the project site—was responsible for administering all 
shutdowns and flagging operations: 
 
The authorized representative of [the Railroad] shall have final authority 
in all matters affecting the safe maintenance of Railroad traffic of his 
Company including the adequacy of the foundations and structures 
supporting the railroad tracks and the necessity for flagging during 
construction. 
 
(R4, tab 100 at DBI Disk 1 00002752; see also tr. 1/202-04) 
 
31.  Furthermore, the Work Plan stipulated that all interactions between Boland 
and Railroad representatives required USACE facilitation: 
 
All direct communications between Boland and [the Railroad] shall be in 
the presence of the USACE representative unless otherwise authorized. 
 
(R4, tab 100 at DBI Disk 1 00002752)  

14 
 
32.  On July 8, 2010, USACE, Boland, Railroad representatives, and other 
necessary personnel attended a coordination meeting to discuss the Work Plan as well 
as potential issues that would occur with working adjacent to the Railroad (app. supp. 
R4, tab 117 at GOV108148-09; see also tr. 1/32-34).  USACE documentation 
summarized the meeting as follows: 
 
A railroad coordination meeting was held on Thursday, 
July 8th at the HPO Franklin trailer.  The purpose of the 
meeting was to discuss the submitted railroad work plan, 
and to discuss the necessary steps to begin construction 
work adjacent to the Norfolk Southern Railroad. 
 
. . . . 
 
Leonard Fletcher (TGS/Norfolk Southern) discussed the 
submitted work plan and stated he wants to see a “worst 
case” crane set up (heaviest load, closest proximity to 
track, etc.). 
 
(App. supp. R4, tab 117 at GOV108148) 
   
33.  Boland maintained its usual practice of preparing daily reports for this 
project, including the Daily Construction Reports (DCR), and the Contractor Quality 
Reports (QCR).  The DCRs included specific work performed that day by Boland and 
each subcontractor, including all manpower and equipment that was utilized.  The 
QCRs included information on equipment inspections and hours, labor hours, QC 
activities and deficiencies, job safety, work started and performed by contractor.  (R4, 
tabs 203-204; tr. 1/106-08) 
 
Target’s Interference Claims 
 
34.  Shortly after commencing work on the project, Target alleged that it began 
experiencing substantial delays due to unexpectedly high numbers of trains passing 
through the worksite.  Mr. Robert Mora, the project engineer for LPV 105.02, testified 
that “there was never a day where [Target] had—they could just work the entire day.  
You know, there was always some trains passing, you know, on a daily basis.”  
(Tr. 3/6, 22-23) 
 
35.  Target voiced concerns to Boland about the frequency of passing trains. 
Boland advised Target that the specifications did not contemplate track time on the 
southbound track.  Moreover, Boland complained that Target was slow to mobilize 
and had “essentially no measurable production.”  On October 5, 2010, Boland required 
Target to provide a baseline schedule in CPM format outlining what was planned, 

15 
 
taking into account the constraints set forth in the specification including track time 
and the limited permissible hours of work.  (R4, tabs 109, 114; tr. 1/92-93)  
 
36.  Target alleged that each train that passed through the worksite during work 
hours delayed work by 1.05 hours on average.  Target also alleged that these delays 
were so extensive that it “considered a day with 6 or more trains passing as a total lost 
day based on a 10 hour work day.”  (R4, tab 26 at GOV000423) 
 
37.  Target’s vice president, Mr. Steve Fulmer, testified that on 106 days during 
the project, there were more than five trains that passed through the job site (tr. 2/5, 9; 
see also tr. 1/131 (similar testimony from Target’s president, Mr. Jeff Fegert)).  
Mr. Fulmer also testified that there were several days when more than nine trains 
passed through the worksite (tr. 2/11-12).  Specifically, Mr. Fulmer testified that: 
 
• On September 16, 2010, 13 trains traveled through the worksite in a 
13-hour workday. 
 
• On October 17, 2010, 11 trains traveled through the worksite in an 
11-hour workday. 
 
• On March 13, 2011, 13 trains traveled through the worksite in a 12-
hour workday. 
 
• On April 3, 2011, 13 trains traveled through the worksite in a 12-hour 
workday. 
 
• On May 13, 2011, 12 trains traveled through the worksite in a 14-
hour workday. 
 
(Tr. 2/12-13)  Whether there were 5 trains or 13 trains that passed through the job site, 
the numbers were within the expected work stoppages per day that had been disclosed 
in the solicitation and in the site visit that Target and Boland had attended (findings 15, 
20). 
 
38.  Mr. Fulmer further explained: 
 
Based on the just over an hour, hour-and-five-minute delay 
that we experienced per train on average, if you have six 
trains come through a job site, of course, that would get to 
six-and-a-half hours, based on the stop and start of work, 
the ineffectiveness of being able to do that.  Target 
allocated that to be an entire lost day, because you would 
never have any—you would never realize any production 

16 
 
on a job. It would be physically impossible at that point in 
time. 
 
(Tr. 2/19) 
 
39.  Boland’s August and September 2010 daily quality control reports (QCRs) 
documented time losses caused by track time delays (see tr. 1/34-37).  For 
example:  
 
• “Track Time: We lost 3hr -10min today waiting for track time” (R4, 
tab 203 at GOV018631; app. supp. R4, tab 118 (QCR dated 
August 30, 2010)). 
 
• “Track Time: We lost 3hr-10min today waiting for track time” (R4, 
tab 203 at GOV018633; app. supp. R4, tab 119 (QCR dated 
August 31, 2010)). 
 
• “Track Time: We lost 3hr-45min today waiting for track time” (R4, 
tab 203 at GOV018636; app. supp. R4, tab 120 (QCR dated 
September 1, 2010)). 
 
• “Track Time: We did not have track time (unable to work) from 8:05 
am to 9:38 am, 11:57 am to 12:52 pm, and from 2:25 pm to 4:46 pm.  
This is a total of 4hrs and 49mins” (R4, tab 203 at GOV018640; app. 
supp. R4, tab 121 (QCR dated September 3, 2010)). 
 
• “Track Time: We did not have track time (unable to work on T-wall) 
from 8:00 am to 9:45 am, 11:30 am to 1:30 pm, 2:50 to 3:15, and 
from 3:40 to 4:10 pm.  This is a total of 4hrs and 40mins” (R4, 
tab 203 at GOV018647; app. supp. R4, tab 122 (QCR dated 
September 7, 2010)). 
 
None of these QCRs specified whether trains were passing on the northbound or 
southbound tracks. 
 
40.  Target’s president, Mr. Fegert testified that work was not only halted while a 
train was passing, but also for long periods of time before and after the train passed.  
Mr. Fegert added that the flagger would communicate with Target personnel regarding 
the time that work would be stopped, the extent of the delay, and the time at which the 

17 
 
work could be restarted.  Mr. Fegert alleged that this resulted in long periods of time in 
which work could not be done: 
 
The actuality was we would be stopped, and sometimes a 
train would come in five, ten, 15 minutes.  It was very 
seldom that soon, but it was usually somewhere, you 
know, like a half-hour, hour maybe.  It was quite a while.  I 
think our average shutdown time was an hour and five 
minutes, but there were some instances it was—it’d be 
hours before you saw a train. 
 
(Tr. 1/134-35; see also tr. 3/48-49 (similar testimony from Mr. Mora)) 
 
41.  Mr. Fegert testified that work beyond the 25-foot area was consistently 
halted before, during, and after the passing of a train: “[T]here was no respect for a 25-
foot line on the project as being the guidelines that the flagger was working under.  It 
was literally the project itself, which I would guess was 200 feet wide from the 
railroad tracks” (tr. 1/133). 
 
42.  Target also alleged that the 8:00 a.m. to 12:00 p.m. work window 
frequently was not honored.  Mr. Fulmer testified that: 
 
There were numerous days that the 8:00 to 12:00 set-aside 
time for track time as defined here was not afforded to us 
during construction. And, again, I think, based on the log, 
it’ll show that there [were] 90 trains that passed through in 
that work window time frame during the construction of 
the project. 
 
(Tr. 2/10) 
 
43.  Mr. Boland testified that the issue of track time delays was “brought up by 
our quality control reports, and then later it was identified at the owner meetings, and 
then even in a few emails, it was addressed” (tr. 1/37). 
 
44.  Minutes from the September 8, 2010, October 20, 2010, and November 3, 
2010, weekly owner’s meetings with USACE personnel referenced Boland’s concern 
of track time delays of between three and four hours per day and continued throughout 
the project (tr. 1/38-39, 1/41-42; app. supp. R4, tab 20 at GOV022508, GOV022510, 
23 at GOV003780-81, 24 at GOV003773). 
 
45.  Mr. Fegert testified that Target increased its efforts and costs in order to 
meet the deadline (tr. 1/195).  Specifically, he stated that Target’s efforts to follow the 

18 
 
recovery schedule resulted in an impact of a “multiple of 50 percent or 100 percent” 
and that “efficiency dropped, not just by a little bit but a lot” (tr. 1/124-25). 
 
46.  Target prepared a Modified Track Time Log (Track Log) purporting to list 
all trains that passed through the job site during work hours for the duration of the 
claim period.  As explained in detail by Mr. Fulmer, the data in the Track Log was 
extracted from train logs prepared by General Electric (GE).  (R4, tab 228; tr. 2-39-49)  
The Track Log provides that throughout the 269-day claim period, a total of 1,345 
trains passed through the worksite during working hours.  There were 90 trains that 
traveled on the northbound track during the work window of 8:00 a.m. and 12:00 p.m. 
(id. at DBI Disk 5 008948). 
 
Target’s Performance 
 
47.  Boland began expressing concern about issues with Target’s performance 
as early as June 22, 2010.  For example, Target failed to provide its required submittals 
in accordance with the Work Plan, delaying the project by seven days.  Boland had 
intended to submit the Work Plan to USACE no later than June 16, 2010.  (R4, 
tabs 98; 206 at DBI Disk 1 00022646) 
 
48.  Issues with Target’s performance, staffing, and management continued into 
August 2010 (see R4, tabs 106, 107, 203 at GOV018593, GOV018603 (descriptions of 
Target’s deficiencies in quality control reports)). 
 
49.  Target leased an RG19T piledriving hammer to perform piling work for the 
project, which was delivered to the site in August 2010 (R4, tab 216 at 4, 8).  Target 
experienced several problems with the RG19T.  Many of the segments driven by the 
RG19T were out of plumb and out of alignment, requiring Target to pull the segments 
out of the ground and redrive them.  This continued for 36 days, with only 15 paired 
segments of sheet piles being properly driven.  The RG19T was eventually replaced 
with a conventional vibrating hammer and crane.  (Id. at 8-9; tr. 1/206, 222-24) 
 
50.  The project required Target to drive approximately 1,485 paired sheet pile 
segments to construct the I-wall.  Target budgeted 33 days of crew time at an 
estimated cost of $280,000 to drive the piles.  Target claimed that it took its 
conventional sheet pile-driving crew an additional 110 days at a cost exceeding $3 
million to complete the pile driving.  (R4, tab 216 at 9-10) 
 
 
51.  Target’s first sheet pile was not driven until August 7, 2010 (R4, tab 203 
at GOV018582).  By letter dated August 18, 2010, Boland’s project manager, Mr. Bill 
Thomas, expressed concern about delays resulting from “Target’s inactivity and lack 
of personnel, supervision, and equipment” and directed Target to “take whatever steps 

19 
 
are required, including providing additional manpower and working additional shifts” 
to get back on schedule (R4, tab 106 at DBI Disk 3 00004701, 00004703). 
 
52.  By August 18, 2010, Boland was complaining about Target’s delay to the 
“Four Week Short Interval Schedule” resulting from “Target’s inactivity and lack of 
personnel, supervision and equipment.”  Target was told to accelerate to meet the 
project schedule.  (R4, tabs 106 at 1; 206 at DBI Disk 1 00022646) 
 
53.  Boland prepared Daily Construction Reports (DCRs) (R4, tab 204; 
tr. 1/107-08).  Boland’s DCRs identified numerous issues with Target’s performance, 
ranging from undersized rigging on the pile drive stopping operations, deficiencies 
relating to the silt fence, demolition equipment not being on site, sheet piles outside of 
specific tolerance, Target’s failure to send a truck to pick up sheet pile, realignment of 
piles, failure to set mats on top of the levee stopping work, no bucket for the excavator 
to load trucks, failure to correct deficiency reports, and other continuing equipment 
issues (R4, tab 204 at 1-4, 6, 9, 11-12, 73).
2 
 
54.  Issues with Target’s performance, staffing, and equipment continued into 
September 2010 (see R4, tabs 109,110, 111, 112, 113 (email correspondence between 
Boland and Target representatives), 206 at DBI Disk 1 00022650).  
 
55.  USACE’s Project Engineer for this contract, Mr. Mora, was employed by 
Linfield, Hunter & Junius, a local engineering firm who contracted with USACE for 
his services.  Mr. Mora observed that Target “struggled with sheet pile driving.  They 
didn’t seem to have workers that were familiar with the process of driving sheet pile” 
(tr. 3/6-7, 26-27). 
 
56.  By email dated September 10, 2010, Boland’s construction manager, 
Mr. Jason Whitworth, voiced concern that “Target is failing miserably in getting any 
sort of consistency in the installation of the sheet piles and continues to delay the 
project schedule,” identified numerous delays allegedly caused by Target between July 
9 and September 8, 2010, and concluded that Target was 23 calendar days behind 
schedule on commencement of the piles (R4, tabs 109 at DBI Disk 3 00008922; 206 
at DBI Disk 1 00022650; see also tr. 1/92-93). 
 
57.  By email dated September 29, 2010, Mr. Whitworth advised Target that it 
was 45 calendar days behind the critical path and directed Target to provide a recovery 
plan.  Mr. Whitworth’s email made no mention of delays caused by passing trains.  
(R4, tab 111) 
 
 
2 We have used the pdf page numbers for Tab 204 as it did not contain Bates numbers. 

20 
 
58.  As of October 8, 2010, Target had still not hired a pile crew for the project 
(see R4, tabs 115; 206 at DBI Disk 1 00022654; tr. 1/209-10). 
 
59.  Target’s equipment issues and ensuing delays to the project continued to 
mount well into November 2010 (see R4, tabs 118, 120, 123, 124).  By letter dated 
November 19, 2010, Mr. Whitworth informed Target that it would be found in default 
of the subcontract agreement if it could not meet certain minimum objectives (R4, 
tab 120).  Boland’s president, Mr. David Boland, testified that the November 19 letter 
was issued out of concern about Target’s own performance issues in addition to those 
attributable to train traffic (tr. 1/19, 95-96; R4, tab 206 at DBI Disk 1 00022657). 
 
60.  By letter dated November 22, 2010, Mr. Fegert complained to Mr. Boland 
of numerous delays to the project it encountered, including “ineffective and untimely 
lane closures, traffic control, schedule sequencing, down time due to excessive train 
traffic, the premature direction by Boland to mob[ilize] an oversized 300-ton crane to 
site, additional weight of H pile, pending change orders or [request for information] 
issues, ETC.” (R4, tab 121 at DBI Disk 3 00004773). 
 
61.  Throughout December 2010, several issues unrelated to train traffic, 
including weather, equipment, and personnel-related problems, continued to delay the 
project, including several workmanship issues that necessitated that Target perform 
rework.  Target was also experiencing a shortage of crane operators causing a 
significant increase in hourly wages.  (See R4, tabs 127, 128, 129, 130, 131, 132, 133, 
142, 147; 206 at DBI Disk 1 00022661) 
 
62.  Boland’s Project Schedule was updated monthly throughout the project.   
Each report includes a section entitled “Critical Path Explanation” (CPM) and 
“Potential Problems/Delays.”  In the December 8, 2010 CPM narrative, Boland stated 
that “due to complications regarding the construction equipment we encountered 18 
days of delay during the update period.  Work will be accelerated to mitigate these 18 
days of delay and get the project back on schedule.”  The January 10, 2011 narrative 
identifies an additional day of delay during the updated period because of 
“complications with the conflict between the H piles and the existing sheet piles.”  
Boland acknowledges the need to mitigate the 19 days of delay.  In the March 9, 2011 
narrative, Boland identified an issue relating to a timely response from the government 
on the sluice gate.  The May 12, 2011 narrative anticipated future delays as a result of 
secondary work being delayed.  Finally, the last problem identified a 39-day delay 
associated with the differing site condition and reference that a cost proposal would be 
submitted to the government.  (R4, tab 205 at 5, 6, 8, 10)  
 
63.  None of Boland’s monthly schedule narratives identify delays associated 
with train traffic. (id.) 

21 
 
64.  In an email dated December 7, 2010, Target’s project manager, 
Mr. Don Boehme, admitted there were delays to the project “associated with the 
Mantiowoc Crane on the West End of the Project intended to be used to drive H-pile.” 
Problems with the Mantiowoc Crane persisted throughout the project.  (R4, tabs 129, 
141). 
 
65.  In a letter from Boland to Target dated December 23, 2010, Mr. Whitworth 
identified numerous actions or inactions taken by Target in November and December 
2010 that impacted the critical path and opined that “Target has yet to fully utilize the 
currently allotted track time.  In fact, the current delays are directly related to the 
mobilization (due to delivery/certification/inspections), breakdowns and maintenance 
of Target’s pile driving equipment.”  The email concluded by adding that “Target is 
behind schedule due to circumstances within Target’s control.”  (R4, tab 135 at DBI 
Disk 3 00009153) 
 
66.  Target’s equipment problems, personnel and management issues persisted 
into February 2011 (see R4, tabs 141, 146, 148, 150). 
 
67.  By email dated February 1, 2011, Boland’s executive vice president, 
Mr. Jon Eberhart, expressed concern to Mr. Fegert that “the 1 June 2011 contract 
completion date is quickly getting out of reach” and attributed Target’s failure to meet 
its required level of production to “ongoing equipment issues” (R4, tab 141 at DBI 
Disk 3 00009212). 
 
68.  By email dated February 13, 2011, Mr. Boland advised Mr. Fegert that “[i]f 
the truck crane is not efficiently driving steel sheet piling by the end of the day on 
Monday we intend to procure whatever equipment is necessary to efficiently drive the 
sheet piling.”  Mr. Boland also contradicted Mr. Fegert’s statement from the previous 
day that “all other areas are proceeding well.”  (R4, tab 150)   
 
69.  By letter dated February 16, 2011, USACE’s administrative contracting 
officer, Mr. William Rossignol, expressed concern about Boland’s progress, directed 
Boland to “take all necessary steps” to meet the deadline, and emphasized the 
importance of finishing the project by that date.  The letter stated: 
 
As was discussed in the preconstruction conference and 
numerous other meetings, all Walls shall be constructed by 
June 1, 2011, on the subject contract.  At the current rate of 
progress, especially H-Piles and Sheet Piles, the June 1, 
2011 date is at risk.  The H-Pile and Sheet Pile production 
rates shall increase.  At this time, you shall take all 
necessary steps so that H-Pile and Sheet Pile production 
rates can support the June 1, 2011 date.  These steps shall 

22 
 
be outlinied [sic] in an updated schedule accompanied with 
a narrative plan by close of business February 22, 2011.  
The narrative shall include a description of equipment, 
manpower, shifts, etc. 
 
In addition, a review of your construction schedule 
indicates that as of January 31, 2011, you are 10% behind 
schedule for overall completion of the project.  Contract 
Clause 52.236-15, Schedules For Construction Contracts, 
requires that your company follow the approved schedule 
in order to complete the work within the required 
timeframe of the 
contract. 
 
In accordance with contract clause 52-232-5, Payments 
Under Fixed-Price Contracts, ten percent (10%) of the pay 
estimate for period covered February 1, 2011, thru 
February 28, 2011, will be withheld due to unsatisfactory 
work progress.  Ten percent of future progress payments 
will also be withheld until satisfactory progress is 
achieved. 
 
(R4, tab 14) 
 
Boland’s Cure Notice to Target 
 
70.  On February 16, 2011, Boland sent Target a cure notice for failure to make 
adequate progress on the project (R4, tab 151). 
 
71.  By letter dated February 17, 2011, Mr. Fegert notified Mr. Whitworth that 
Target would be submitting a request for equitable adjustment (REA) for excessive 
track time delays.  Mr. Fegert’s letter also requested an unspecified time extension.  
(App. supp R4, tab 53 at GOV015064-65) 
 
72.  Mr. Fegert responded to Boland’s cure notice via letter dated February 18, 
2011.  While Mr. Fegert attributed Target’s delays to train traffic and operations on the 
railroad, he identified several other causes such as weather conditions, delays in the 
issuance of security badges, Boland’s direction to mobilize a large crane to the 
worksite, a differing site condition, closure of Hayne Boulevard and Downman Road, 
and a crowded worksite.  (R4, tab 153) 
 
73.  On February 21, 2011, Boland provided the requested recovery schedule in 
response to USACE’s February 16 letter (R4, tab 15; see also tr. 1/46-49). 

23 
 
74.  On February 28, 2011, USACE approved Boland’s accelerated recovery 
schedule (R4, tab 16; see also tr. 1/49-52).  Regarding the delays to the project, 
USACE advised Boland to “[q]uantify this delay and submit a request for equitable 
adjustment” (R4, tab 16 at GOV000172). 
 
75.  That same day, Mr. Boland replied to Mr. Fegert’s February 18 letter, 
stating that “Target has ineffectively utilized the available working hours, including 
requested track time” (R4, tab 154 at DBI Disk 3 00009343).  Mr. Boland noted that 
Target had failed to identify any of the other claimed causes of disruption to the 
project prior to Mr. Fegert’s February 18 letter (id. at DBI Disk 3 00009343-45).  
Mr. Boland also challenged Mr. Fegert’s account of the crane mobilization, asserting 
that “Boland provided no input or direction on the size of the crane to be mobilized” 
(id. at DBI Disk 3 00009343).  Finally, Mr. Boland reiterated to Mr. Fegert that 
Boland required documentation of the delay caused by the road closures (id. at DBI 
Disk 3 00009344).  Mr. Whitworth also forwarded Mr. Fegert’s February 17 letter to 
USACE that same day, advising that Target would be seeking an equitable adjustment 
based upon perceived “unreasonable and excessive delays” due to track downtime, and 
that USACE should “review the attached letter from Target, dated 17 February 2011 
which outlines their position and contact [Mr. Whitworth] should you have any 
questions regarding this matter” (app. supp. R4, tab 53 at GOV015063; tr.1/112-13). 
 
76.  Mr. Boland testified that Boland “didn’t request a specific extension of 
time” (tr. 1/105).  
 
77.  Target’s performance difficulties continued into March 2011.  Target failed 
to properly drive piles plumb as required by the contract specifications (see R4, 
tab 156).  Target also continued to experience extensive personnel issues, including 
failure to mobilize for low-profile work in accordance with the CPM schedule (see R4, 
tabs 157, 158, 159, 160). 
 
78.  On or about March 21, 2011, Norfolk Southern observed that the track in 
the area where Target was driving piles was shifting and settling due to construction 
activity (R4, tab 174).  While Target had been allowed to continue pile driving even 
while trains were passing since January 2011, Norfolk Southern determined that this 
could no longer be permitted due to concerns about the track structure (id.; R4, 
tab 162). 
 
79.  By letter dated April 7, 2011, Target informed Boland that track time 
delays “resulted in a tremendous cost impact to Target and, subsequently, has required 
Target to substantially accelerate the project utilizing several more crews, equipment, 
additional time, overtime, days, and material so as to complete the project by the date 
required by the contract” (R4, tab 170 at DBI Disk 3 00005302). 
 

24 
 
Hayne Boulevard and Downman Road Closure Impacts 
 
80.  By letter dated April 12, 2011, Boland submitted a cost proposal to 
USACE in the amount of $3,603,030 for the delays caused by the Hayne Boulevard 
and Downman Road closures (R4, tab 210).  Boland’s email also requested a 60-day 
time extension (id. at GOV022607). 
 
81.  On June 7, 2011, Boland forwarded to USACE a signed copy accepting 
Modification No. (Mod.) P00003 awarding Boland $975,092 for “Resolution of 
Downman Rd Closure Impacts.”  Mod. P00003 also granted Boland a time extension 
of 60 calendar days, which the parties agreed would not apply to “HYLA associated” 
work.  (R4, tab 211)   
 
Weather Delays  
 
82.  On October 6, 2010, the government issued Mod. A00003 and extended the 
contract completion date by six calendar days because of weather delays (R4, tab 220). 
 
83.  On June 13, 2011, Boland requested a 27-day non-compensable time 
extension due to weather (R4, tab 179). 
 
84.  On July 25, 2011, the government issued Mod. A00013 and extended the 
contract completion date by another seven calendar days because of weather delays 
(R4, tab 221). 
 
Target’s Disputes with its Subcontractors 
 
85.  David Boland Inc., Target Construction, Inc., and their surety companies 
filed suit against Barcelona Equipment, Inc. in the Eastern District of Louisiana.  
Jeffery Fegert, President of Target, testified in a declaration in Action No. 11-2295, 
Eastern District of Louisiana, that the sheetpile-driving work, that Target had planned 
to perform in 33 days required an additional 110 days, and that it incurred an 
additional $3,000,000 in costs, as a direct result of the equipment problems it suffered 
with the RG19T pile driving hammer (R4, tab 216 at 9-10). 
 
86.  Target asserted that it suffered delay on the LPV 105.02 Project at the 
hands of its subcontractor Vice Construction Co., Inc. (Vice).  In a lawsuit against 
Vice, Target claimed that Vice was unable to perform the standard pile driving and 
low-profile driving work it was contracted to perform because Vice’s pile driving 
equipment was inadequate to maintain a steady production rate causing a 40 percent 
down-time.  (R4, tab 219 at 3) 

25 
 
87.  .  In these appeals, there was no attempt by either Boland or Target to 
segregate out the subcontractor delays from the delays it claims were caused by train 
traffic.  (R4, tab 218 at 13-16) 
 
Contract Completion 
 
88.  The final H-pile for the project was driven on May 5, 2011 (app. supp. R4, 
tab 3 at GOV017039). 
 
89.  All work required for the project was completed by the deadline (see app. 
supp. R4, tab 56 at GOV042394). 
 
Boland’s REA 
 
90.  Boland submitted an REA, dated July 1, 2011, to USACE in the amount of 
$10,397,574 for “operation shutdown for passing trains” (R4, tab 18 at GOV000214; 
see also tr. 1/54-55). 
 
91.  By letter dated October 26, 2011, USACE issued a preliminary rejection of 
Boland’s REA, stating that “[QCRs], Boland’s own Field Job Logs, and meeting 
minutes suggest strongly that delay was primarily caused by subcontractor inability to 
manage the manpower, material and equipment to complete the required scope of 
work” (R4, tab 20 at GOV000385). 
 
92.  Boland resubmitted its REA in the form of a “Report of Findings” prepared 
by the consulting group J. Caldarera & Company, Inc., dated May 30, 2012 (R4, 
tab 77 at BOLAND000483; see also tr. 1/58-59). 
 
93.  At a meeting held on August 23, 2012, the contracting officer indicated she 
was willing to consider the days of train delay as referenced in the REA under certain 
conditions (R4, tab 22; tr. 1/59-60). 
 
94.  Boland sent a letter dated December 18, 2012 to USACE’s CO, 
Ms. Cynthia Nicholas (R4, tab 23 at GOV000402).  Attached to this letter was a letter 
from Target revising its REA to $7,118,420.48 with a loss of track time of 183 days 
(id. at GOV000407). 
 
95.  By letter dated December 27, 2012, CO Nicholas advised Boland to submit 
additional documentation supporting its REA and methodology for calculating costs 
(R4, tab 24; see also tr. 1/62).  
 
96.  By letter dated January 25, 2013, Boland submitted a revised REA “in 
which [Boland] provides documentation of meeting denoting the impacts of train 

26 
 
delays and a train log with duration by Target, subcontractor, and duration, by Boland, 
prime contractor” (see R4, tab 25 at GOV000414, GOV000418). 
 
97.  USACE’s estimator, Mr. Renato Basurto, drafted a “Modification 
Government Estimate of Reasonable Contract Costs” dated February 5, 2013, with the 
description “Delays Due Excessive Trains” awarding Boland $568,960.13 for 22 days 
of delay due to passing trains (app. supp. R4, tab 12 at GOV101225-26; see also 
tr.2/21-22).  The estimate stated: 
 
It is assumed that reasonable delay per day is 2 hours and 
any time above the 2 hours is considered to be excessive 
and the Government is reasonable [sic] for these delays. 
Taking the contractor’s provided time per day and 
substracting [sic] 2 hours per day the contractor would 
have been delayed 223 hours. Since the contractor was 
working on the average 10 hours per day, the contractor is 
due 22 calendar days. 
 
(App. supp. R4, tab 12 at GOV101233)  It is not clear from this document how 
USACE had determined that Target had actually suffered delays due to the train 
traffic, other than by “[t]aking the contractor’s provided time per day. . .” 
 
98.  On February 13, 2014, USACE unilaterally issued Mod. P00005, which 
awarded Boland $568,960.13 and a time extension of 22 days.  Mod. P00005 provided 
that “[t]he contract for HPO-LPV 105.02, Lakefront airport T-Walls, Orleans Parish, 
LA is hereby modifiied [sic] to include the definitization of REA-004 for excessive 
train delays.”  (R4, tab 25 at GOV000410-11; see also tr. 1/63-64) 
 
99.  By letter dated June 11, 2014, Boland expressed that it did not accept the 
monetary relief provided by Mod. P00005 as an equitable adjustment and requested a 
contracting officer’s final decision (COFD) on its REA (app. supp. R4, tab 129; see 
also tr. 1/65-66). 
 
100.  By letter dated November 4, 2014, Boland submitted a revised proposal 
utilizing a modified total cost methodology for its REA to USACE in the amount of 
$7,892,922, which included additional support for Boland’s claim, including the data 
obtained from GE documenting the number of trains that passed through the worksite 
during the relevant timeframe. The General Electric (GE) train log data submitted by 
Boland provides that there were 1,345 trains passed during work days and that 90 of 
those trains passed on the northbound track between work hours of 8:00 a.m. and 
12:00 p.m.  Target states that it was able to use the daily logs to identify 568.4 hours of 
delay with 579 trains.  Target also states that Boland’s daily logs identify 267.9 hours 

27 
 
of delay with 243 trains.  (R4, tab 76 at BOLAND000001,3,7,9; app. supp. R4, tabs 
115 at 7; 228 at 1-33; see also tr. 1/66-67, 2/30-31; finding 46) 
 
101.  In response, USACE’s estimator, Mr. Matt Bowman, drafted a 
“Modification Government Estimate of Reasonable Contract Costs” dated July 8, 2015 
with the description “Track Time Delay REA” awarding Boland $1,210,486 for 32 
days of delay due to passing trains (R4, tab 27 at GOV000885-86, GOV000890).  This 
estimate relied on the train records Boland provided and determined that: 
 
Train records were provided that included all trains that travelled 
through the jobsite from the period of August 2010 to May 2011.  The 
records show that the contractor is correct in stating that an excessive 
number of trains shutdown the jobsite for the subject time period. 
 
(Id. at GOV000890)  It is not clear from this statement how USACE determined that 
there were an “excessive number of trains.” 
 
102.  On July 23, 2015, the CO issued a final decision awarding Boland 
$1,707,971 (including the $568,690.13 paid under Mod. P00005) and 32 days (321 
hours of total delay) as compensation for track time delays (R4, tab 4 at GOV000006, 
GOV000014, GOV000019). 
 
103.  On November 23, 2015, Boland filed its complaint with the Board 
(compl. at 10).  The complaint sought the full $7,892,922 Boland requested in its 
revised REA (id. at 10). 
 
104.  The Board docketed ASBCA No. 59313 on May 14, 2014. 
 
105.  The Board docketed ASBCA No. 60294 on October 21, 2015, and 
consolidated Appeal No. 60294 with Appeal No. 59313.  Appeal No. 60294 was filed 
as a protective appeal and “encompasses one claim, a claim for compensation for 
delays due to excessive train traffic and impediment of work from passing trains at the 
job site.” (app. br. at 1). 
 
106.  On April 20, 2016, USACE issued Mod. P00006 to reflect the July 20, 
2016 COFD, providing $1,181,017 in compensation to Boland for the track time 
delays and an extension of 32 days to the contract completion date (app. supp. R4, 
tab 127).  Mod. P00006 stipulated: 
 
It is further understood that this Modification is being 
issued on a unilateral basis due to failure to agree on a 
reasonable amount of down time per train passing through 
the site, the actual amount of down time experienced by 

28 
 
the contractor per train, the total number of trains that 
should have been expected during the duration of the 
contract and the actual number of trains that passed 
through the jobsite during the duration of the contract. 
 
(Id. at 3) 
 
Pile Log Comparison 
 
Boland hired a third-party contractor to prepare a Pile Log for the duration of 
the LPV-105.02 project.  The information in the pile log was recorded as work was 
being performed on the project.  The Pile Log collected detailed information including 
a start and stop time for each pile, how many hits per foot, weather, and temperature, 
on every pile that was driven on the project.  We find the Pile Log to be reliable 
evidence of when the piles were driven and under what conditions.  (R4, tab 223; 
tr. 3/50-51) 
 
107.  The USACE Project Manager, Mr. Mora, compared Boland’s claim to the 
information contained in the Pile Log and found numerous discrepancies.  (Tr. 3/50-
52; R4, tabs 223, 228) 
 
108.  Based upon the location, Mr. Mora concluded that the work at Monoliths 
(wall sections) 175 through 180 were not impacted by track time (tr. 3/25-26, 30-32; 
R4, tab 240 at 25 (Drawing C-12)).  
 
109.  While the claim identifies delays at Monoliths 222 through 227, the pile 
logs show no impact from track time at Monoliths 222 through 227, and one-half of 
228 (tr. 3/32-33; R4, tab 240 at 25) 
 
110.  Target claims that on September 11, 2010, it was delayed by the passing 
of train no. 130 at 4:51:27 p.m. (CST) or 1.05 hours.  The pile driving log for 
September 11, 2010 shows that on that same date and time at Monolith 213, H Pile 
No. 8 was being driven from 4:50 p.m. through 5:15 p.m.  At Monolith 213, Pile 
No. 10 was driven beginning at 5:24 p.m.  The pile driving was stopped on 
September 11, 2010 at 6:50 p.m. because of repair work that was needed on the 
hammer.  A new hammer was installed two days later, on September 13, 2010 with 
work starting again at 3:45 p.m. (R4, tabs 26 at GOV000421; 223 at GOV105305-07; 
228 at DBI Disk 5 008920) 
 
111.  On September 13, 2010, Target claims its progress was delayed by the 
passing of train no. 130 beginning at 4:53:31 p.m. (CST) for 1.05 hours.  The pile 
driving log shows that on September 13, 2010, at Monolith 214, H-Pile No. 1 was 

29 
 
driven from 4:42 p.m. through 5:12 p.m.  (R4, tabs 26 at GOV000421; 223 
at GOV105319; 228 at DBI Disk 5 008920)  
 
112.  Target states that on September 16, 2010, its workers were delayed 
beginning at 4:10:34 p.m. by three trains (nos. 22R, 172, 393).  The pile driving log 
shows that work on the H-piles at Monolith 214 was proceeding during the same time 
period Target claimed to be unable to work.  Pile No. 6 at Monolith 214 was being 
driven from 3:55 p.m. through 4:14 p.m.; the pile log reflected that work stopped for 
passing trains at 4:20; Pile No. 14 was then driven between 5:00 and 5:12 p.m.; Pile 
No. 16 at Monolith 214 was driven between 5:25 and 5:45 p.m.; Pile No. 7 at Monolith 
214 was being driven from 5:57 through 6:15 p.m.  (R4, tabs 223 at GOV105324, 
105325, 105332, 105334; 228 at DBI Disk 5 008920) 
 
113.  Target states that on October 9, 2010, its workers were delayed for 1.05 
hours by train no. 198 beginning at 10:15:02 a.m.  That same date, work on the H-piles 
at Monoliths 212 and 213 were proceeding during the same time Target claimed to be 
shut down.  Pile No. 18 at Monolith 212 was driven from 10:15 until 10:30 a.m.; Pile 
No. 13 at Monolith 213 was driven between 10:47 and 11:12 a.m.; and Pile No. 12 
at Monolith 213 was driven between 11:15 and 11:42 a.m.  (R4, tabs 26 
at GOV000421; 223 at GOV105294, 105309; 228 at DBI Disk 5 008923) 
 
114.  Target states that on October 9, 2010, its workers were delayed for 1.05 
hours by train no. 198 beginning at 2:40:22 p.m.  The pile driving log once again 
shows that work on the H-piles at Monoliths 212 and 213 were proceeding on the 
same date and time period Target claimed to be shut down.  Pile No. 2 at Monolith 213 
was being driven from 2:30 through 2:55 p.m.; Pile No. 17 at Monolith 212, was 
driven between 3:19 through 3:42 p.m.; and Pile No 10 at Monolith 212 was driven 
from 3:54 to 4:15 p.m. (R4, tabs 223 at GOV105286, GOV105293, 105299; 228 
at DBI Disk 5 008923) 
 
115.  Target claims there were periods that the entire day was lost due to the 
passage of more than nine (9) trains.  They included: 
 
September 16, 2010—13 trains travel through the job site 
in a 13 hour workday 
 
October 17, 2010—11 trains travel through the job site in a 
13 hour workday 
 
March 13, 2011—13 trains travel through the job site in a 
12 hour workday 
 

30 
 
April 3, 2011—13 trains travel through the job site in a 12 
hour workday 
 
May 13, 2011—12 trains travel through the job site in a 14 
hour workday 
 
(App. br. at 12)  None of the dates that Target claims to have lost an entire day due to 
trains traffic are supported by the contractor quality control reports or the Pile Driving 
Log (R4, tabs 203 at GOV018667-69, GOV018750-51, GOV019286-89, 
GOV019390-93, GOV019579-82; 223 at GOV104659-63, GOV104691-94, 
GOV104699-702, GOV105243-44, GOV105256-61, GOV105269, GOV105306, 
GOV105320-2, GOV105324-5, GOV105332, GOV105334, GOV105438, 
GOV105443, GOV105445, GOV105449, GOV105473-76, GOV105478-82, 
GOV105652-58, GOV105662-68, GOV105779-84, GOV105787-94).  In fact, in its 
brief, USACE has convincingly demonstrated that on 36 days where Target claimed an 
entire lost day, Target was actually performing work and achieving higher productivity 
compared to the rest of the month in which the delay allegedly occurred (gov’t br. at 5-
6 (citing R4, tabs 224, 228). 
 
DECISION 
 
The Parties’ Contentions 
 
 Boland alleges that USACE constructively changed the contract by requiring 
Boland to meet the “immutable” June 2011 deadline despite the delays caused by train 
traffic, thus constituting a constructive acceleration (app. br. at 33).  Specifically, 
Boland contends that the delays it and Target faced were excusable (id. at 33-35; app. 
reply at 2-13), that USACE directed it to accelerate the project (app. br. at 35-39), and 
that it expended additional labor, equipment, and funds to meet the deadline as a result 
(app. br. at 39).  USACE counters that Boland and Target have failed to demonstrate 
that the delays were unreasonable or excusable (gov’t reply br. at 3-22), that Boland 
never made a request for a time extension (id. at 22-25), and that Boland and Target 
have not adequately demonstrated that Target expended additional resources to meet 
the deadline (id. at 28-30). 
 
Standard of Review 
 
 We begin our discussion by addressing Boland’s reliance upon statements in 
the July 23, 2015 COFD as proof of its claim (app. br. at 2-3, 28-29).  Boland appears 
to be under the impression that statements made within the COFD are binding upon 
the Board (see id. at 28-29), while USACE challenges Boland’s attempt to use these 
statements as admissions (gov’t reply br. at 2).  We remind the parties that “when suit 
is brought following a contracting officer’s decision, the findings of fact in that 

31 
 
decision are not binding upon the parties and are not entitled to any deference” and “a 
contractor is not entitled to the benefit of any presumption arising from the contracting 
officer’s decision.”  Wilner v. United States, 24 F.3d 1397, 1401 (Fed. Cir. 1994).  
Boland’s attempt to rely upon content from the COFD as a demonstration of 
entitlement is thus misplaced.  Any proceeding before the Board is reviewed de novo 
and “once an action is brought following a contracting officer’s decision, the parties 
start . . . before the [B]oard with a clean slate.”  Id. at 1402. 
 
Third-Party Delays 
 
This contract required work on or adjacent to the property of a Railroad 
(finding 13).  Among other things, it required the contractor to “so arrange and 
conduct his work that there will be no interference with Railroad operations. . .”  
(finding 14).  It specifically warned contractors that: 
 
The Railroad has and retains the right to fully enjoy and 
utilize any and all of its right of way or property, including 
those portions upon which the levee, floodwall, and/or 
floodgate is to be constructed, for its railroad operations 
and facilities and the location and extension of such 
additional facilities and structures as the Railroad deems 
useful or convenient. . . 
 
(Id.). 
 
The contract provided that 10 to 15 trains per day would pass the work site, 
split equally between the north and southbound tracks (finding 15).  The government 
informed bidders at least twice that 10 to 15 trains per day meant 10 to 15 work 
stoppages per day and Boland demonstrated that it understood this (findings 15, 20, 
22).   
 
The crux of Target’s claim is that there were more train delays per day than it 
expected and that the delay from each train was longer than it expected (findings 36, 
100).  Before we begin, the Board notes that the former allegation is baseless because 
the documents Target has submitted indicate that 1,345 trains passed the site over 269 
days, an average of only five per day, much less than the 10 to 15 trains identified in 
the contract
3 (finding 46).  The latter allegation concerning the length of the delays, is 
unsupported, as we discuss below.    
 
3 Target does not cite any days in which there were more than 15 trains.  The worst 
days that it can cite are five days in which there were 11 to 13 trains (app. br. 
at 12).  

32 
 
In any event, Target is not contending that the actions of USACE or another 
government agency delayed the work.  Rather, it contends that a third-party, the 
Railroad, delayed its work and that USACE should pay for those delays.  The law is 
very unfavorable for contractors asserting such third-party delay claims.  The Federal 
Circuit has held that it is “settled that absent fault or negligence or an unqualified 
warranty on the part of its representatives, the Government is not liable for damages 
resulting from the action of third parties.” Oman-Fischbach International (JV) v. Pirie, 
276 F.3d 1380, 1385 (Fed. Cir. 2002) (quoting Dale Constr. Co. v. United States, 
168 Ct. Cl. 692, 698 (1964)).  The Federal Circuit and the Court of Claims have 
applied this rule to delays caused by a foreign government, Oman-Fischbach, 276 F.3d 
at 1385, by a local government, Dale Constr. Co., 168 Ct. Cl. at 698, and by another 
contractor, Gilbane Building Co. v. United States, 333 F.2d 867 (Ct. Cl. 1964). 
 
On this contract, USACE represented that there would only be limited relief 
from the operation of the Railroad.  Specifically, the contract provided that there 
would be a “work window” between 8:00 a.m. and 12:00 p.m. on the north bound 
track.  Beyond that, however, the contract made it clear that any further availability 
was up to the Railroad.  It provided that “[a]ny track time that may be given on the 
south bound track. . . or outside the work window on the north bound track will be 
done purely based on the needs of the Railroad.”  (Finding 15).  Further, the contract 
specifically provided that Boland would have no claim against either the Railroad or 
USACE for delays or hindrances due to railway traffic (finding 19).  Reading these 
provisions in the context of the third-party delay rule, the Board concludes that 
USACE, at most, could be liable for trains that passed on the north bound side 
between 8:00 a.m. and 12:00 p.m. 
 
This brings us to the first of several major problems with the claim.  Target’s 
claim is built on the allegation that 1,345 trains passed the work site.  But it admits that 
only 90 of these trains passed on the north bound side between 8:00 a.m. and 
12:00 p.m.  (Findings 42, 46).  In other words, the plain language of the contract and 
the third-party delay rule bar the claim with respect to 1,255 of the trains, or more than 
93% of the total.      
 
Elements of a Constructive Acceleration Claim 
  
The Changes Clause grants a contractor the right to seek an equitable 
adjustment when a change is made to the contract (finding 5).  A constructive change 
occurs when the contract is changed “either due to an informal order from, or through 
the fault of, the government” rather than through a formal change order.  Zafer 
Taahhut Insaat ve Ticaret A.S. v. United States, 833 F.3d 1356, 1361 (Fed. Cir. 2016) 
(quoting NavCom Def. Elec., Inc. v. England, 53 Fed. App’x 897, 900 (Fed. Cir. 
2002)).  A constructive acceleration occurs when the government requires the 
contractor to adhere to the contract’s original performance deadline even though the 

33 
 
contract provides the contractor with periods of excusable delay entitling the 
contractor to a longer performance period.  Fraser Constr. Co. v. United States, 
384 F.3d 1354, 1361 (Fed. Cir. 2004).  To prevail on a constructive acceleration claim, 
a contractor must demonstrate that: 
 
(1) the contractor encountered a delay excusable under 
the contract;  
 
(2) the contractor made a timely and sufficient request 
for an extension of the contract schedule;  
 
(3) the government denied the contractor’s request for 
an extension or failed to act on the request within a 
reasonable amount of time;  
 
(4) the government insisted on completion of the 
contract within a shorter period than the contractor would 
have been entitled by taking into account the period of 
excusable delay, after which the contractor notified the 
government that it regarded the alleged order to accelerate 
as a constructive change to the contract; and 
 
(5) the contractor was required to expend additional 
resources to compensate for the lost time and remain on 
schedule. 
 
Id.  Because Boland is unable to demonstrate any of these elements, we hold that it has 
failed to present a prima facie case of constructive acceleration. 
 
Boland Has Failed to Demonstrate That the Delays Were Excusable 
 
Boland argues that the track time delays it and Target experienced during the 
project were excusable under the contract (app. br. at 33-35; app. reply at 2-13).  The 
Default clause provides that the contract is not subject to termination for default where 
“[t]he delay in completing the work arises from unforeseeable causes beyond the 
control and without the fault or negligence of the Contractor” (finding 6) (emphasis 
added).  Boland asserts that the track time delays “were unforeseeable and without the 
fault or negligence of [Boland and Target]” and “were so extensive and unreasonable 
that they far exceeded the contractor’s expectations for review of the Contract and 
conducting a prebid site visit,” and were thus excusable (app. br. at 33-34). 
 
A delay foreseeable to a contractor is not excusable.  See Fraser, 384 F.3d 
at 1364-65 (Fed. Cir. 2004) (finding that delays to project were not excusable due to 

34 
 
foreseeability of need for overtopping of contractor’s dike design); (see also finding 6 
(the Default clause)).  This solicitation included several provisions relating to work 
adjacent to a railroad right-of-way, and the protections that would be necessary during 
performance by any successful contractor (findings 12-19).  Amendments to the 
solicitation reminded bidders it should pay special attention to the specific 
requirements dealing with the railroad right-of-way, and “expect 10-15 work 
stoppages per day.”(finding 15).  Bidders were notified that they would “assume all 
lability for any and all damages to its work . . . caused by railroad traffic” (finding 19).  
Numerous references informed bidders of the steps necessary to protect railroad 
property (findings 12-14, 18).  Flagging services4 for this project were required for 
protection of the railroad’s operations “whenever the contractor’s personnel or 
equipment are . . . working on the Railroad’s right-of-way, or across, over, adjacent to, 
or under a track, or when such work has disturbed or is likely to disturb a railroad 
structure . . .”  Bidders were required to “arrange and conduct” their work to not 
interfere with the railroad.  In fact, it was clearly set out in the contract that authorized 
railroad employees had the right to stop any contractor activity if that activity could 
cause danger to the railroad.  In addition, the railroad retained the right to utilize all its 
right-of-way property for its railroad operations (finding 14).  
  
 Boland and Target were on notice before bidding on the contract that the 
worksite was adjacent to railroad tracks and that work would have to be halted when 
trains passed through the worksite (findings 3, 15-16, 18-19).  Specifically, Sections 
12 and 13 of the “Special Provisions for Protection of Railway Interests” provided in 
part: 
 
12. GUIDELINES FOR PERSONNEL ON RAILROAD 
RIGHT-OF-WAY 
 
. . . . 
 
E. All welders and cutting torches working within 25’ of 
track must stop when train is passing. 
 
 
4 The contractor was responsible for paying the railroad for all costs of flagging 
services at a rate of $650 per day (R4, tab 10 at GOV000095-000097).  In the 
event that a flagman assigned to the project site, was called away for an 
emergency elsewhere, the contractor was required to delay its work until the 
flagman was available again.  “Any additional costs resulting from such delay 
shall be borne by the Contractor . . . .” (R4, tab 10 at GOV000097)   
 
 

35 
 
13. GUIDELINES FOR EQUIPMENT ON RAILROAD 
RIGHT-OF-WAY 
 
. . . .  
 
D. All cranes and boom equipment under load will stop 
work while train is passing (including pile driving). 
 
E. Swinging loads must be secured to prevent movement 
while train is passing. 
 
. . . .  
 
J. All operating equipment within 25’ of track must halt 
operations when a train is passing.  All other operating 
equipment may be halted by the 
flagman if the flagman views the operation to be dangerous 
to the passing train. 
 
(finding 18) 
 
 The specifications further stipulated: 
  
No charge or claim of the Contractor against either the 
Corps or the Railroad will be allowed for hindrance or 
delay on account of railway traffic; any work done by the 
Railroad or other delay incident to or necessary for safe 
maintenance of railway traffic or for any delays due to 
compliance with these special provisions. 
 
(finding 19)  Boland was notified on multiple occasions, including during the pre-bid 
site visit5—with both Boland and Target representatives in attendance—that 10 to 15 
trains would pass through the worksite on average during a 24-hour period and that 
there would be 10 to 15 work stoppages (findings 15, 20).  Inexplicably, Target was 
unaware of this and has contended that an entire workday was lost if six trains passed 
through the worksite (findings 15, 20, 36, 38).  
 
The language used to identify the interferences likely to be encountered from a 
functioning railway were undeniably clear.  Every aspect of working alongside a 
 
5  “It is well-settled that a contractor is charged with knowledge of the conditions that a 
pre-bid site visit would have revealed.”  H.B. Mac, Inc. v. United States, 
153 F.3d 1338, 1346 (Fed. Cir. 1998).   

36 
 
railroad right-of-way could be found in the materials provided to offerors prior to bid.  
Boland even acknowledged in its work plan that any track time outside the work 
window or on the southbound track was purely based upon the needs of the railroad.  It 
was always known that there would be times that work could not be performed. 
(finding 16) Amendment 5 to the solicitation told contractors to “expect 10-15 work 
stoppages per day (finding 15).  The expectation of 10-15 work stoppages was 
reinforced during the pre-bid site inspection (finding 20).  Boland even identified in its 
Railroad Protection Liability Application that it expected to encounter 15 trains per 
day (finding 22). 
 
Any interference caused by passing trains should not have been a surprise to 
either Boland or Target. The passing of trains outside the work-windows, were not 
unreasonable considering all of the notices provided.  The site visit and the solicitation 
could not be clearer on the likely impacts that could occur from railroad operations, 
and the responsibilities being imposed upon the contractor when they were preforming 
this work.  The track time delays to this project were foreseeable and the contractor 
cannot now be allowed to rely on ignorance or a lack of understanding of the impact 
working on a railroad right-of-way might have.  This work was to be performed as 
required by the contract, and necessitated consideration of these provisions by the 
contractor prior to bid.  The language used and the extent of the notifications made any 
delay to the contractor’s work caused by train traffic not in the work window to be 
reasonably foreseeable. 
 
Even assuming arguendo that the track time delays were not foreseeable, 
Boland has failed to prove that the delays to the project were attributable to train 
traffic.  “[I]t is generally recognized that a contractor is not entitled to a time extension 
upon the mere occurrence of an event.  The contractor must show that the event caused 
delay to the overall completion of the project and must establish the number of days of 
relief to which it is entitled.”  Phillips Nat’l, Inc., ASBCA No. 53241, 04-1 BCA 
¶ 32,567 at 161,102 (citations omitted).  We know that “[a] contractor seeking to prove 
the government’s liability for a delay has the burden of proving the extent of the 
alleged delay, the causal link between the government’s wrongful acts and the delay in 
the contractor’s performance, and the alleged harm to the contractor for the delay.”  
Kinetic Builder’s Inc. v. Peters, 226 F.3d 1307, 1316 (Fed. Cir. 2000). To establish 
that “causal link, the contractor must show that the government’s actions affected 
activities on the critical path of the contractor’s performance of the contract.” 226 F.3d 
at 1317.  Regarding concurrent delays, the general rule is that “[w]here both parties 
contribute to the delay neither can recover damage[s], unless there is in the proof a 
clear apportionment of the delay and expense attributable to each party.”  William F. 
Klingensmith, Inc. v. United States, 731 F.2d 805, 809 (Fed. Cir. 1984) (quoting 
Blinderman Constr. Co. v. United States, 695 F.2d 552, 559 (Fed. Cir. 1982)).  The 
Board “will deny recovery where the delays are concurrent and the contractor has not 
established its delay apart from that attributable to the government.”  Id. 

37 
 
By Boland’s own admission, Target itself was largely responsible for these 
delays.  Correspondence between Boland and Target reveals that Target experienced 
numerous delays unrelated to train traffic, such as equipment-, weather-, and 
personnel-related issues throughout the course of the project (findings 47, 51, 54, 56-
57, 59, 61, 64-66, 69).  Target’s failures on this project began as early as June 2010, 
and continued throughout.  Target’s first omission occurred when it failed to provide 
submittals as required by their subcontract with Boland.  Boland maintains that Target 
delayed the project by seven days.  (finding 47)  One of the principal drivers hindering 
the work was the equipment problems that plagued Target throughout the project.  
Target’s equipment had alignment problems, causing them to pull pile segments out of 
the ground and redrive them.  They eventually replaced the RG19T with a 
conventional vibrating hammer and crane.  Problems persisted with the Mantiowoc 
Crane which was intended to be used to drive H-piles (finding 64).  Other equipment 
issues surfaced, including the failure to have demolition equipment on site, the use of 
undersized rigging, and continuous equipment problems (finding 53).  Boland 
expressed concern that Target was “failing miserably” regarding pile driving (finding 
56) and determined that Target had failed “to fully utilize the currently allotted track 
time” and was “behind schedule due to circumstances within Target’s control” 
(finding 65).   
 
The Daily Construction Reports prepared by Boland also identified a plethora 
of issues with Target’s performance unrelated to train traffic (finding 53).  Target 
suffered performance issues because of staffing, scheduling, and management issues 
(findings 54, 58-59, 65-66).  It failed to schedule the pickup of materials, and in early 
October 2010, Target had not yet hired a pile crew for the project (finding 53).  
Meanwhile, Target struggled with hiring workers who were familiar with the process 
of driving sheet pile (finding 55).  Personnel issues continued to beset Target well into 
March 2011 (findings 55, 78).  Workmanship issues required Target to perform rework 
(finding 53).  And, for the period of three months (January to March 2011), when 
Target was authorized by the railroad to continue pile driving while trains were 
passing through the worksite, they continued to experience issues affecting their ability 
to make progress. (findings 66-72, 75, 77, 78).  These delays to the project were so 
extensive that Boland itself issued a cure notice to Target (finding 70).  While Target 
challenged Boland on the causes of the delay, their finger-pointing settles in on 
contractor issues such as schedule sequencing or impacts, road closures, and issues 
that were previously settled by Boland with the government (findings 72, 75, 80-81).  
And while Boland points to anecdotal evidence of days when more than nine trains 
passed through the worksite (app. br. at 12; finding 37), Boland was on notice that any 
track time outside the work window of 8:00 a.m. to 12:00 p.m. or on the southbound 
track would be “given by the Railroad purely based upon the needs of the Railroad” 
(findings 15-16).  Furthermore, Target’s TRACK LOG identified 1,345 trains that 
passed through the worksite throughout the 269-day claim period during working 
hours—an average of exactly five trains per workday (finding 46).   A number far less 

38 
 
than what the government told bidders to expect (finding 15).  Even if the contractor 
was able to establish a causal link between the government’s wrongful acts and the 
delay in the contractor’s performance, Boland still cannot recover for what would be 
concurrent delay, such as the substantial performance problems experienced by Target 
(findings 47-48, 51-59, 64-67); see Sauer, Inc. v. Danzig, 224 F.3d 1340, 1348 (Fed. 
Cir. 2000); Essex Electro Eng’rs, Inc. v. Danzig, 224 F.3d 1283, 1295 (Fed. Cir. 
2000); Merritt–Chapman & Scott Corp. v. United States, 208 Ct. Cl. 639, 649-50 
(1976).  Notwithstanding Boland’s assertions in this appeal, we hold that the weight of 
the evidence establishes that many of the issues were concurrent with delays that may 
be attributable to train traffic. 
 
Neither does Target attribute its delay to any of the issues it experienced with 
its own subcontractors.  Target’s President admits in a lawsuit filed against its own 
subcontractor Barcelona, that Target was forced to accelerate the sheet pile-driving 
work on the 105 project, working an additional 110 days and incurring an additional 
$3 million in excess costs, as a direct result of the equipment problems it suffered with 
the RG19T (findings 85, 87).   Nor do they attribute any of the delay claimed on this 
project (LPV 105.02) to their subcontractor Vice Construction.  In Target’s lawsuit 
against Vice, they claim that Target suffered delay and increased costs because the pile 
driving equipment supplied by Vice was inadequate (finding 86).  Neither Boland nor 
Target made any attempt to segregate out these delays from the delays it claims were 
caused by passing trains. 
 
Even assuming appellant was able to move past these countless issues, the 
evidence contained in the pile logs largely refutes the claim.  Boland hired a contractor 
to prepare pile logs for this project, collecting data on every pile including pile 
number, location, date, weather, start time, finish time, hits per foot, etc.  The 
information was collected as the work was being performed and was provided to the 
government.  (finding 107)  The pile logs are the most reliable evidence as to what 
work actually occurred and the timing of that work.  This evidence is instrumental in 
examining the assertions made by appellant in its claim, and how it comports with the 
data collected in the pile logs during the performance of the contract.  Our examination 
revealed a multitude of claims that are not supported by the pile logs, and in fact, 
conflict with specific allegations made by appellant.   
 
Appellant’s claim of train delays on September 11, 2010, during certain hours 
shows that work was occurring on Monolith 213, at Pile Nos. 8 and 10.  These piles 
were being driven during the exact time Target claims it had to stop work because of 
train no. 130.  The pile log also revealed that the work on September 11, 2010, was 
stopped at 6:50 p.m. because of equipment issues.  After almost 2 full days of delay 
because of failures to the equipment, the new hammer was installed on September 13, 
2010, with work resuming at 3:45 p.m.  (finding 111)  Ironically, Target claims that it 
had to stop work on September 13 at 4:53 pm because of passing trains, but the pile 

39 
 
log reveals that work was ongoing at Monolith 214, Pile No. 1 between 4:42 p.m. and 
5:12 p.m. (finding 112)  On September 16, 2010, Target claims it was delayed by three 
passing trains beginning at 4:10 p.m. and lasting 3 hours and 15 minutes.  The pile log 
reveals that work continued at Monolith 214 at Pile Nos. 6, 7, 14, 16 covering the 
same period Target alleged it was delayed (finding 113).  On October 9, 2010, Target 
alleges they were delayed during two different time periods.  Instead, the logs show 
piles being driven during precisely the same time periods that Target claims they were 
shut down because of train traffic (findings114-15).  There were several dates that 
Target claimed they were shut out of work for an entire day because there were more 
than nine trains passing through the site.   But our review revealed that the pile log
6 
refutes the alleged delay on each of the dates identified (findings 107-116).   At best, 
our comparison between the claim and the pile logs, reveal the imprecisions with 
which appellant put together the claim.  The evidence contained in the pile logs is 
insurmountable in evaluating the validity of appellant’s claims of delay caused by train 
traffic.   
 
While we don’t want to belabor the obstacles surrounding this claim, the 
contract drawings also provide an impediment to some of the claims presented by 
appellant.  The drawings provide insight into whether passing trains could impact the 
progress of work on certain Monoliths.  While there were claims of railroad delay 
relating to Monoliths 175 through 180 and Monoliths 222 through 227, the drawings 
show that the location of these Monoliths were not in or near the railroad right-of-way 
(findings 109-10).  The abundance of contradictory evidence can lead us to only one 
conclusion—Target’s delays resulting from passing trains is lacking in support, and 
any delay suffered by Target was due to its own fault.  Accordingly, the abundance of 
the reliable evidence supports the conclusion that appellant is responsible for any 
increased costs associated with completing this project on time.  
 
Notwithstanding the unequivocal language putting bidders on notice of the 
impacts of working alongside a railroad right-of-way, the government can be held to 
account for delay were passing trains interfered with performance occurring during the 
work window of 8 a.m. to 12 p.m. on the northbound track.  There is reliable evidence 
of 90 trains that traveled on the northbound track during the work window -- although 
the government made clear that no work stoppages were to occur during this work 
window (findings 15, 46).  While we recognize the challenges made by the 
government to the compilation of Target’s Track Log we conclude that the testimony 
of Mr. Fulmer establishes the reliability of this document and the underlying data 
(finding 46).  Unfortunately, appellant has not taken the next step of showing that the 
90 trains that passed on the north bound track during the work window interfered with 
Target’s work causing delay.  In order to recover for a claimed delay, appellant has the 
 
6 The quality control reports also refute the alleged delay on each of the dates 
identified (finding 39).    

40 
 
burden to establish that the government delayed the ultimate project completion.  
Phillips Nat’l, Inc., 04-1 BCA ¶ 32,567 at 161,102 (citations omitted).  In construction 
cases, appellant would typically demonstrate a delay to project completion through a 
CPM schedule analysis.  Nassar Group Int’l, ASBCA No. 58451, 19-1 BCA ¶37,405 
at 181,833; In re Galaxy Builders, Inc., ASBCA Nos. 50136, 50018, 00-2 BCA 
¶31,040 at 153,282.  Although this contract required the use of the critical path method 
to prepare project schedules for use in evaluating progress, there has been no 
demonstration by appellant that the actual incidents of a train passing during the work 
window on the north bound track impacted the critical path7 (finding 10)  
Additionally, appellant has done nothing to account for its frequent and documented 
concurrent delays.  Because Boland has “not established its delay apart from that 
attributable to the government,” neither can recover damages.  Klingensmith, 731 F.2d 
at 809.   The Board “will deny recovery where the delays are concurrent, and the 
contractor has not established its delay apart from that attributable to the government.”  
Id 
. 
Boland Has Failed to Demonstrate That it Requested an Extension of Time 
 
 Boland contends that it requested an extension of time for the project by 
forwarding Target’s February 17, 2011 REA to USACE and that USACE never 
responded to nor granted this request (app. br. at 20; app reply at 13-15; see also 
findings 60, 64-65).  We disagree.  In its February 28, 2011 correspondence to 
USACE, Boland merely attached Target’s February 17 letter and stated that Target had 
notified Boland that it would seek an equitable adjustment due to “unreasonable and 
excessive delays” caused by passing trains (findings 75-76).  The letter further advised 
USACE to “review the attached letter from Target, dated 17 February 2011, which 
outlines their position and contact [Mr. Whitworth] should you have any questions 
regarding this matter” (id.).  Since no privity of contract existed between Target and 
USACE, any valid request for a time extension would have had to be made by Boland, 
not Target.  While not required, contractors seeking a time extension for an excusable 
delay regularly request a specific time frame to mitigate the impacts of the delay.  
Zafer, 833 F.3d at 1363.  At no point in this transmission did Boland ask USACE for a 
time extension, nor did Boland or Target specify the period desired for a time 
extension (see id.; findings 70, 75).  In fact, by Mr. Boland’s own admission, Boland 
“did not request a specific extension of time” (finding 76).  Conversely, when Boland 
requested a time extension to ameliorate impacts to the project caused by road 
closures, Boland explicitly asked for an extension of 60 days (finding 80).  
 
7 Nor does appellant attempt to explain how Target was delayed by train traffic for the 
three-month period (January 2011 until March 21, 2011) that Target was 
allowed by the Railroad to continue driving piles while trains were passing on 
the track.  (finding 78). 
 

41 
 
Accordingly, because Boland never requested a time extension USACE never denied 
nor failed to timely act upon any such request. 
 
USACE Did Not Directly or Indirectly Order Boland to Accelerate 
 
 Boland alleges that USACE directly ordered it to accelerate the project to 
overcome the delays to the project to meet the deadline via issuance of 
Mr. Rossignol’s February 16, 2011 letter advising Boland to “take all necessary steps” 
to meet the deadline, and, in the alternative, that USACE’s course of action during the 
project constituted an implied order to accelerate (app. br. at 35-39; app. reply br. 
at 13; finding 69).  However, as USACE argues, and we agree, Mr. Rossignol’s letter 
was merely a directive that Boland get back on schedule after its self-imposed and 
admitted delay causing them to fall behind on the project (gov’t sur-reply at 12-13; 
findings 47, 49, 52, 54, 56, 58-59, 61).  The contract provided:  
 
If, in the opinion of the Contracting Officer, the Contractor 
falls behind the approved schedule, the Contractor shall 
take steps necessary to improve its progress, including 
those that may be required by the Contracting Officer, 
without additional cost to the Government.  In this 
circumstance, the Contracting Officer may require the 
Contractor to increase the number of shifts, overtime 
operations, days of work, and/or the amount of 
construction plant, and to submit for approval any 
supplementary schedule or schedules in chart form as the 
Contracting Officer deems necessary to demonstrate how 
the approved rate of progress will be regained.   
 
(finding 7)  Furthermore, while an expression of concern about progress coupled with 
a refusal to issue extensions can amount to an order to accelerate, “[s]uch expressions 
do not always constitute the equivalent of orders to accelerate . . . particularly if the 
expression comes before the time when the contractor has raised a specific and valid 
claim of right to an extension.”  Fraser, 384 F.3d at 1367.  Mr. Rossignol’s 
February 16 letter was sent to Boland twelve days before Boland forwarded Target’s 
February 28 letter complaining about the train traffic to USACE (findings 69, 75).  
While Boland points to the immutability of the HYLA deadline as evidence that any 
request for a time extension would have been denied (app. reply at 14-15), USACE 
granted several time extensions for delays caused by weather and road closures over 
the course of the project (findings 81-82, 84).  Accordingly, we conclude that USACE 
neither implicitly nor explicitly directed Boland to accelerate.  Fraser, 384 F.3d 
at 1367. 
 

42 
 
Boland Has Failed to Adequately Demonstrate That it and Target Expended 
Additional Resources 
 
Boland contends that it and Target expended additional manpower, equipment, 
and funds in response to USACE’s “order to accelerate” (app. br. at 39).  USACE 
counters that Boland and Target have failed to establish that they expended any 
additional resources due to the claimed delays (gov’t reply br. at 28-30).  Boland’s 
revised REA utilized a modified total cost methodology to quantify the alleged costs it 
incurred as a result of passing trains (finding 100).  The Board does not favor the total 
cost method of recovery, and it will not be used if there is another, more reliable 
method available to establish the contractor’s alleged damages.  Hi-Shear Tech. 
Corp. v. United States, 356 F.3d 1372, 1383 (Fed. Cir. 2004); Raytheon Co. v. White, 
305 F.3d 1354, 1365 (Fed. Cir. 2002).  Nevertheless, the hearing in these appeals was 
on entitlement only, leaving the issue of quantum, if necessary to another day.   
 
Furthermore, as we found above there was ample evidence to conclude that any 
losses and delay suffered by Target were the direct result of the continuous self-
inflicted difficulties encountered with equipment, personal and their own 
subcontractors (findings 54, 58-59, 65, 85-86).  A contractor seeking entitlement to 
delay damages “must establish the extent of the delay, the contractor’s harm resulting 
from the delay, and the causal link between the government’s wrongful acts and the 
delay.” Essex Electro Eng’rs, Inc., 224 F.3d at 1295; see also States Roofing Corp., 
ASBCA No. 54680 et al., 10-1 BCA ¶ 34,356 at 169,661 (citing Essex Electro).  
Boland alleges that on average, each train that passed through the worksite delayed the 
project by 1.05 hours (findings 36, 38).  However, neither Boland nor Target have 
adequately demonstrated how they arrived at this number, nor have either presented a 
critical path analysis or similar methodology by which the Board can reasonably 
ascertain the extent of the alleged track time delays or demonstrated the 
impracticability of utilizing such methods.  See, e.g., Southwest Marine, Inc., ASBCA 
No. 36854, 95-1 BCA ¶ 27,601 at 137,520 (denying claim where “[a]ppellant provided 
no critical path information, [n]or made any effort to show how the alleged delays 
impacted the overall job completion date.”).  As we have already determined, Boland 
and Target’s delays to the project are not excusable.  The lack of evidence in support 
of the allegations is sufficient basis upon which to deny the appeal.  Appellant has 
simply not proven that it is entitled to be compensated by the government for any 
delay associated with the passing of trains.  Accordingly, we conclude that Boland has 
failed to meet its burden of establishing that it expended additional resources due to 
the alleged track time delays. 
  

43 
 
CONCLUSION 
 
 For the foregoing reasons, the appeals are denied. 
 
 Dated:  September 20, 2024  
 
 
 
 
 
 
 
 
 
 
 
STEPHANIE CATES-HARMAN 
Administrative Judge 
Armed Services Board 
of Contract Appeals 
I concur 
 
 
 
OWEN C. WILSON 
Administrative Judge 
Acting Chairman 
Armed Services Board 
of Contract Appeals 
 I concur 
 
 
 
 MICHAEL N. O’CONNELL 
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 Nos. 59313, 60294, Appeals of 
David Boland, Inc., rendered in conformance with the Board’s Charter. 
 
 Dated:  September 20, 2024  
 
 
 
 
 
 
 
PAULLA K. GATES-LEWIS 
Recorder, Armed Services 
Board of Contract Appeals