ARMED SERVICES BOARD OF CONTRACT APPEALS 
Appeal of -- ) 
) 
MARCON Engineering, Inc. ) 
) 
Under Contract No. W912BV-08-D-2026 ) 
APPEARANCES FOR THE APPELLANT: 
APPEARANCES FOR THE GOVERNMENT: 
ASBCA No. 57471 
Theodore M. Bailey, Esq. 
Kristin E. Zachman, Esq. 
Bailey & Bailey, P.C. 
San Antonio, TX 
Thomas H. Gourlay, Jr., Esq. 
Engineer Chief Trial Attorney 
John F. Bazan, Esq. 
Engineer Trial Attorney 
U.S. Army Engineer District, Los Angeles 
OPINION BY ADMINISTRATIVE JUDGE PEACOCK 
This timely appeal involves three discrete claims by appellant under the 
captioned contract. The scope of the hearing of the appeal originally encompassed 
both entitlement and quantum. However, at the hearing, the parties agreed and the 
Board ordered that the hearing and this decision would address entitlement only. 
Briefing and finalization of the record in this appeal were completed on 23 November 
2014. We sustain the appeal in part and deny it in part. 
FINDINGS OF FACT 
The Project Generally and Solicitation 
1. The United States Army Corps of Engineers (Corps or government) issued a 
Request for Proposal (RFP) for award of a firm-fixed-price (FFP) task order (TO) to 
design and construct approximately .97 miles of a fence along the Arizona border with 
Mexico under the captioned multiple award task order contract (MA TOC). The TO 
solicitation was issued on 6 May 2008 and called for design/construction of a bollard 
style fence (18 feet high, approximately 6.5 inches in diameter, and spaced 
approximately 4 inches apart), its foundation, and an immediately-adjacent concrete 
access road along the fence line. (R4, tab 7 at 154, 802-04, tab 12 at 2512-13; supp. 
R4, tab 334 at 7096, ex. G-2)1 The fence was one small section of an extensive project 
1 In general, the government's responses to appellant's proposed findings of fact are 
not in compliance with the Board's Briefing Order. That order mandated that 

along the Mexican border starting in San Diego, California. The government retained 
the architectural engineering firm of Michael Baker Jr., Inc. (Baker or A-E), as project 
manager for the overall project. (Tr. 5/87-88, 7/34) 
2. The specifications included in the RFP required that all construction 
activities were to be "contained within the project corridor," with the exception of 
work related to installation of two 24 inch corrugated metal pipes (CMPs or culverts) 
at the western limits of the project (supp. R4, tab 334 at 7093; tr. 3/153, 6/206, 7/63, 
204). The "project corridor" was a 60-feet wide strip adjacent to the border also 
known as the Roosevelt Reservation (RR) (supp. R4, tab 334 at 7093; R4, tab 7 at 196; 
tr. 1/103). 
objections and replies to opposing party proposed findings be specific and 
detailed, in particular pointing out any inaccuracies in the record citations. For 
example, appellant's proposed findings often provide a narrative description of 
the content of key drawings, supplementing depictions of the actual drawings or 
reasonably accurate (albeit generally not-to-scale) demonstrative 
representations of key elements of the drawings. Those findings are also 
supported by extensive citations to transcript testimony of the witnesses 
discussing the actual drawings. The government's responses to these proposed 
findings generally interpose simplistic, broad, imprecise, general, conclusory 
and argumentative objections to the findings on the basis that the original 
drawing "speaks for itself' or the demonstrative is "non-contemporaneous" or 
not-to-scale without addressing precisely and in detail the accuracy and 
substance of the proposed findings or why the proposed finding is otherwise 
unsupported by, contrary to, or in conflict with the evidence. Nevertheless, the 
Board has undertaken an independent review of key findings to ensure that 
they, in fact and substance, are supported and/or reasonably depict the 
underlying drawing. Those findings in material respects have not been shown 
to be inaccurate as confirmed by our own independent examination of key 
evidence of record. Moreover, the government considers that because "Marcon 
cannot prove a cause of action against the Corps regarding drainage .... The 
Corps therefore only provides some objections below due to time constraints." 
(Resp.'s master response to APF 101) The Corps conclusory assertion is, of 
course, the principal grounds for the dispute and appeal. As we discuss in detail 
herein that government contention lacks merit. Regardless, the Corps was not 
excused from the directions in the Briefing Order due to time constraints 
particularly where the briefing of the appeal was extended at the parties' 
requests on a number of occasions and was not concluded until approximately 
eleven months following completion of the trial. The government's post 
hearing briefs also frequently cite inaccurately or incompletely to documents, 
transcripts and page numbers and are generally unreliable. As a consequence of 
all of the above, we have liberally relied on appellant's proposed findings and 
record citations in this decision. 
2 

3. The RFP contemplated that the contractor would use the "Appendix 2" 
drawings, developed by Baker and dated 24 March 2008, including a ditch 
detail therein, in designing the drainage system for the site (tr. 7/207; R4, tab 7 at 788). 
In this regard, section OI 00 50 "TASK ORDER REQUIREMENTS," paragraph I.9 
"SITE DESIGN AND CONSTRUCTION," subparagraph I .9.6. "On-Site 
Construction Access Road" provided as follows: 
The Design/Build Contractor shall be responsible for the 
design and construction of the on-site construction access 
road and drainage ditch modifications adjacent to the 
fence. A conceptual typical section has been provided in 
Appendix II. The Design/Build Contractor shall fully 
design and construct the on-site construction access road 
and drainage ditch modifications using the conceptual 
typical section. 
(R4, tab 7 at I 96, I 98, 200) 
4. The pertinent detail on RFP appendix (appx.) II drawing G-2.I (R4, tab 7 at 
790), depicted a typical concrete drainage ditch for essentially the length of the one 
mile site designed to transport flood waters from the west end to east end of the site 
through the concrete ditch. The water was to exit the site in a northeasterly direction 
at its east end. Because of the presence of an existing irregular ditch (as discussed 
below), the depths of any required excavation/grading and modifications of the ditch 
varied. The concrete ditch was to be located within the RR between the access road to 
be constructed immediately adjacent to the fence on the south, and a preexisting road 
constructed and maintained by the Border Patrol approximately paralleling the future 
fence line, hereinafter referred to as the Border Patrol Road (BPR), on the north. The 
BPR was partially within, but for most of its length outside of, the RR to varying 
degrees at various stations. Although the detail generally showed some filling in of 
the existing ditch to accommodate the fence access road, the Baker concept did not 
envision filling in the ditch entirely as would generally be needed to have the water 
emanating from the south (Mexico) flow more naturally across the site in a north or 
northeasterly direction. (Supp. R4, tab 304 at 7008-09, tab 342 at 7210-2I; tr. 1/89-90, 
92, 4/63, 5/89-90, 7/66, 208-IO, 213-I4, 22I) 
5. Section OI 33 I6 "DESIGN AFTER AWARD," Part I "GENERAL," noted 
that the contract consisted of the "Solicitation requirements and the accepted proposal" 
and further stated 
in paragraph I . I : 
The information contained in this section applies to the 
design required after award. The design begins with the 
pre-contract proposal, which must conform to all 
3 

requirements of the Solicitation. After award, the 
Contractor will develop the accepted proposal into the 
completed design, as described herein. 
The Contractor may elect to fast track the design and 
construction - that is, proceed with construction of parts of 
the site work and fence prior to completion of the overall 
design. 
(Supp. R4, tab 336 at 7119) 
6. Section 01 00 50 "TASK ORDER REQUIREMENTS," paragraph 1.9, 
"SITE DESIGN AND CONSTRUCTION," subparagraph 1.9.3. discussed the 
two 
existing 10-foot culverts (or CMPs) at the east end of the site and the patrol road used 
by the U.S. Border Patrol (hereinafter the BP) generally paralleling the entire length of 
the site: 
1.9.3. Existing Site Conditions 
An aggregate surfaced patrol road exists along the 
project corridor. The patrol road generally 
parallels the Border with its offset from the Border 
varying in distance. The patrol road is 
approximately 24 feet wide and is considered to 
be in good condition. 
At the eastern end of the project there are two 
large diameter culverts that convey drainage 
runoff between the patrol road and the Border. 
The drainage ditch extends the entire length of the 
project corridor. 
(Supp. R4, tab 334 at 7096) 
7. Section 01 00 50 "TASK ORDER REQUIREMENTS," paragraph 1.9, 
"SITE DESIGN AND CONSTRUCTION," subparagraph 1.9.7., "Drainage Report," 
provided that the contractor would use the preliminary drainage report in the RFP and 
would do further investigation and analysis to, among other things, prevent ponding on 
the site and develop a drainage plan capable of handling a 100-year flood, and further 
provided: 
A preliminary drainage report has been provided in 
Appendix IV. The preliminary drainage report delineates 
all basins within the limits of the fence construction. 
4 

Discharge values, using the 100-yr storm event, have been 
determined for major drainage paths within each basin, as 
identified using USGS mapping, at the point which they 
cross the fence location. Any assumptions made in 
determining discharges and fence crossing locations have 
been stated within the preliminary drainage report. 
Prior to start of construction, the Design/Build Contractor 
shall perform all the following minimum requirements 
using the 100-yr storm event: 
• Review the existing drainage report and field verify 
existing wash locations. The Design/Build Contractor 
shall be responsible for determining discharges of 
additional washes identified in the field as they cross 
the roadway and/or fence locations. 
• Provide final drainage basin delineation maps showing 
all basins and sub-basins associated with the roadway 
and/or fence limits of construction. 
• Determine local drainage runoff and/or sheet flow 
conditions as they cross the roadway and/or fence 
locations. 
• Provide the final hydraulic calculations identifying the 
final discharge velocity and rise in water surface 
elevation at the roadway crossings and selected fence 
type at each identified wash crossing. Acceptable rise 
in water surface elevation shall be six inches for rural 
locations and three inches for urban locations. 
• Provide final calculations showing depth of scour 
and/or long term degradation. 
• Provide details for culvert and/or low water crossings 
and fence design at each wash crossing which satisfies 
rise in water surface elevations stated above. When 
fence is located at the border and where flow is from 
south to north[,] the fence shall be offset from the 
International Border 10-feet. At offset locations, the 
Contractor shall provide gate access for equipment and 
personnel to remove debris. 
5 

• Provide details for protection against scour and/or long 
term degradation along with preventing ponding of 
water at the roadway and/or fence locations. 
• Provide hydrologic/hydraulic design and details 
showing that any/all cut and/or fill operations 
conducted within the project site do not adversely 
affect the 
natural drainage patterns across the site and 
satisfies the rise in water surface elevation stated above. 
• Provide hydraulic design and details for any other site 
drainage improvements required due to construction to the 
roadway and fence or as otherwise stated in this RFP. 
The Design/Build Contractor shall coordinate with all 
applicable reviewing agencies including, but not limited to 
Federal Emergency Management Administration (FEMA), 
U.S. Corps of Engineer (USACOE), and United Sates 
Section of the International Boundary and Water 
Commission (US-IBWC). 
(Supp. R4, tab 334 at 7097; R4, tab 7 at 200) 
8. Provisions of the MATOC controlled in the case of conflicts with the Task 
Order. However, the MATOC 
contained no Order of Precedence clause. (Ex. A-35) 
The TO contained two such 
clauses. FAR 52.215-8, ORDER OF PRECEDENCE -
UNIFORM CONTRACT FORMAT (OCT 1997) was set forth in specification section 00800, 
"SPECIAL CONTRACT REQUIREMENTS," and states: 
Any inconsistency in this solicitation or contract shall be 
resolved by giving precedence to the following items in the 
following order: 
(a) The Schedule (excluding the specifications). 
(b) Representations and other instructions. 
(c) Contract clauses. 
( d) Other documents, exhibits, and attachments. 
( e) The specifications. 
(Supp. R4, tab 333 at 7079) 
9. The second Order of Precedence clause in the contract is also in 
specification section 00800, "SPECIAL CONTRACT REQUIREMENTS," and states: 
6 

SCR. I DESIGN-BUILD CONTRACT ORDER OF 
PRECEDENCE-AUG 1997 
a. The contract includes the standard contract clauses 
and schedules current at the time of award. It also 
entails: (1) the solicitation in its entirety, including 
all drawings, cuts and illustrations, and any 
amendments during proposal evaluation and 
selection, and (2) the successful offerors accepted 
proposals. The task order constitutes and defines 
the entire agreement between the Contractor and the 
Government. No documentation shall be omitted 
which in any way bears upon the terms of that 
agreement. 
b. In the event of conflict or inconsistency between 
any of the provisions of the various portions of the 
contracts, precedence shall be given in the 
following order: 
(1) Betterments: Any portions of the offeror's 
proposal which both meet and exceed the 
provisions of the solicitations. 
(2) The provisions of the solicitation. (See also 
Contract Clause: Specifications and Drawings 
for Construction.) 
(3) All other provisions of the accepted proposal. 
( 4) Any design products, including but not limited 
to, plans, specifications, engineering studies 
and analyses, shop drawings, equipment 
installation drawings, equipment installation 
drawings, etc. These are "deliverables" under 
the contract 
and are not part of the contract 
itself. Design products must conform to all 
provisions of the contract, in the order of 
precedence herein. 
(Supp. R4, tab 333 at 7088-89) 
7 

10. As noted above, the RR restriction appears in the specifications. The RFP 
drawings indicate the RR limits but do not themselves expressly restrict the contract 
work to the RR (supp. R4, tabs 329, 342). 
11. Beginning with appx. II, drawing C-1.6 on the western end of the project and 
proceeding through drawing C-1.1 on the eastern end of the project, the drawing depicted 
existing conditions and construction to be performed at the site. The following points are 
notable (R4, tab 7 at 792-97 ( appx. II, drawings C-1.1 through C-1.6) ): 
a. The 24-foot wide BPR running parallel along the site was wholly or at least 
partially north (outside) of the 60 foot RR or project corridor, with the exception of the far 
eastern end (appx. II, drawings C-1.1 through C-1.6; tr. 1/76-79, 4/69, 78, 5/114-18, 
7/210). Over 90% of the BPR was outside the RR (appx. II, drawings C-1.1 through C-1.6; 
tr. 2/100, 3/21 ). 
b. On the western end of the site, the land north of the RR was federally-owned 
by the U.S. Fish and Wildlife Service for approximately the first 1300 feet (Sta. 207 to 
Sta. 220) of the western end of the site. Thereafter the land north of the site was 
privately owned by the Union Grandera Regional de Son (aka Cattlemen's 
Association) and a Mr. John Brava. An existing 60-inch CMP was depicted at 
approximately the west end extending across the BPR and north of the RR to transport 
off site water which flowed south from Mexico and in a northeasterly direction. The 
contractor was to construct two new 24-inch CMPs at the western end with the inlet 
ends extending from inside the project site across the BPR into the federal land with 
the outlet ends outside the RR. The note above the end of these two west end CMPs 
stated: "Contractor to install pipe to maintain positive flow[,] design build contractor 
to determine culvert location based on actual field conditions." The drainage design 
concepts shown in the RFP drawings contemplated that installation of these CMPs 
would require some work north of the RR. (R4, tab 7 at 797-98 (appx. II, drawings 
C-1.6, D-1.1); supp. R4, tab 342; tr. 2/47, 3/155, 6/226, 7/215, 217) 
c. In constructing and maintaining the BPR over the years, the Border Patrol 
had elevated the BPR and created a ditch of varying depths running parallel to the 
southern edge of the BPR. The BPR ran along and in varying distances inside or 
outside (north) of the RR. The slope and depth of the ditch generally increased 
moving east. (Appx. II, drawings C-1.1 through C-1.6, contour/slope lines; tr. 4/75) 
12. The drainage design concepts reflected in the above drawings and the 
specifications contemplated constructing a concrete drainage channel using the existing 
ditch running parallel to the southern edge of the BPR. The concrete channel would 
capture and transport rains west to east down the entire length of the site/fence with the 
water exiting the site through the two large 10-foot CMPs at the eastern terminus of the 
site. (Appx. II, drawings C-1.1 through C-1.6, contour/slope lines; tr. 4/75) 
8 

13. The RFP package included at appx. IV a "Preliminary Drainage Report 95% 
Submittal" (the RFP Drainage Report), dated January 2008 that was prepared by Baker. 
The RFP Drainage Report indicated that peak (100-year flood) flows would be at a rate 
of approximately 4000 cubic feet per second ( cfs.) emanating from the southwest and 
flowing primarily in a northeasterly direction, with the largest of two drainage basins 
entering the project site at its west end at about the planned location of the two 24 inch 
culverts to be installed. (R4, tab 7 at 905, 917; supp. R4, tab 343 at 7222, 7234; tr. 3/46, 
41179, 182, 5/ 110) The RFP Drainage Report provided in pertinent part: 
SECTION 3.0 PROPOSED CONDITIONS 
Within the limits of the two washes identified herein, fence 
configurations shall be designed such that minimal upstream 
and downstream hydraulic impacts are observed. The fence 
design shall permit the passage of flows with minimal effects 
upstream of the International Boundary resulting from flows 
backing up behind the fence. According to the International 
Boundary and Water Commission (IBWC), a stakeholder on 
this project, the proposed fence design should show a 
demonstrated minimal adverse impact to the existing 
conditions flood hazards in Mexico. The IBWC has 
indicated that an increase of up to 6-inches in water surface 
elevations is acceptable. At locations where the fence 
crosses washes that trend northwards, therefore, the final 
drainage report shall demonstrate minimal hydraulic 
backwater impact in Mexico. 
SECTION 4.0 HYDROLOGIC ANALYSIS 
The 100-year storm was used as the base storm for 
determining the peak discharges in both basins .... 
SECTION 5.0 HYDRAULIC ANALYSIS 
No hydraulic analyses have been performed for this report. 
The final drainage report will include impact analysis of 
the pedestrian fence on flows, both northbound and 
southbound, if any, at the International Boundary. Any 
9 

adverse impacts to flow as a result of construction of the 
pedestrian fence (increase of over 6-inches in water surface 
elevations, increase in 100-year floodplain widths, or flow 
velocities) will have to be mitigated by design. Energy 
dissipation and/or erosion control at the fence alignment, if 
required, will also need to be addressed in the final 
drainage report. 
SECTION 6.0 CONCLUSIONS 
Two wash crossings are identified for the aforementioned 
1.0-mile stretch of pedestrian fence along the International 
Border in Douglas, Cochise County. For these crossings, 
100-year peak discharges are evaluated. A fence cross 
section will be proposed in the Final Drainage Report for 
all washes, including those not identifiable using the 
presently available data and USGS topographic mapping. 
The selected pedestrian fence for the project area will have 
to be verified through design, so that upstream backwater 
impacts of fence construction are minimized. The selected 
pedestrian fence placement should not impede the storm 
water flow or cause a significant backwater condition. 
A final drainage report will need to be provided covering 
all these issues mentioned herein, especially hydraulics, 
erosion control, and fence types. It will also include all 
calculations to demonstrate minimal impacts. 
(R4, tab 7 at 908-1 O; supp. R4, tab 343 at 7225-27)2 (Emphasis added) 
14. After issuance of the RFP, a pre-bid inquiry was submitted to the 
government on 26 April 2008 asking: 
In the event the existing drainage channel must be widened 
to the north (encroaching on the existing road) to 
accommodate the anticipated design flow, should the 
2 Appellant alleges that Baker knew as of the time of this report and failed to advise 
offerors that the appx. II drainage conceptual design could not contain 100-year 
storm flows without encroaching into public and private land north of the RR. 
Because of our resolution of this appeal on other grounds, it is unnecessary to 
address in our findings or discuss these related issues. 
10 

contractor anticipate moving the road to maintain the 
existing width or is reduced road width acceptable. 
(Supp. R4, tab 350 at 7312) 
15. On 1May2008, the government responded to the pre-bid inquiry as 
follows: 
It is not anticipated that the existing drainage channel will 
need to be widened. However, if during design it is 
determine[ d] that the drainage ditch will not accommodate 
the design flow, then configurations of the ditch and 
roadway will need to be determined. The existing roadway 
width will need to be maintained. 
(Supp. R4, tab 350 at 7313) 
16. Award of the TO was to be made to the lowest-priced, technically 
acceptable (LPTA) offeror (supp. R4, tab 331; R4, tab 7 at 187). 
17. Specification section 00120 "PROPOSAL EVALUATION AND 
CONTRACT AW ARD," paragraph 4.0 "EVALUATION OF TECHNICAL 
PROPOSAL," stated in part: 
The technical proposals will be reviewed for compliance with 
the technical specifications. Technical proposals are given an 
overall rating of either "Acceptable" or "Non-acceptable". 
The evaluation factors will be rated either "acceptable" or 
"nonacceptable" based upon the standards listed within the 
RFP. A rating of "non-acceptable" for any evaluation factor 
will constitute an overall rating of "non-acceptable" and 
ineligible for award. 
(R4, tab 7 at 186, 188) 
18. Specification section 00110 "PROPOSAL SUBMISSION 
REQUIREMENTS, INSTRUCTIONS, CONDITIONS, NOTICE TO OFFERORS, 
BASIS OF AW ARD, AND LOCAL INSTRUCTIONS" states, in part: 
TAB A - FACTOR# 1 - TECHNICAL APPROACH, 
METHODS AND PROCEDURES. 
Proposals shall demonstrate the 
offeror' s ability to 
schedule and successfully perform the work and to satisfy 
11 

all solicitation requirements, the quality of the offeror' s 
approach, methodology, plan for customer service, quality 
control procedures, and the feasibility of its approach to 
successfully complete the work. 
(R4, tab 7 at 182, 185) 
19. Specification section 00120 "PROPOSAL EVALUATION AND 
CONTRACT AW ARD," paragraph 5.0 "EVALUATION OF PRICE PROPOSAL," 
stated in part: 
The proposed price will be analyzed for reasonableness. It 
may also be analyzed to determine whether it is realistic 
for the scope of work to be performed; reflects a clear 
understanding of the requirements; and is consistent with 
the offeror' s technical proposal .... 
(R4, tab 7 at 186, 188) 
20. Specification section 00120 "PROPOSAL EVALUATION AND 
CONTRACT AW ARD" included the following evaluation factor for the 
"TECHNICAL APPROACH, METHODS AND PROCEDURES": 
FACTOR #1 -TAB A-TECHNICAL APPROACH, 
METHODS AND PROCEDURES 
Proposals shall demonstrate the offeror' s ability to 
successfully perform the work and satisfy all solicitation 
requirements. Responses to this factor must explain and 
clearly demonstrate the offeror's technical 
understanding 
of the works; its ability to schedule and accomplish all 
work in accordance with solicitation requirements; its plan 
for providing customer service; its proposed quality control 
procedures; as well as its technical approach and 
methodology and the feasibility of its approach to 
successfully complete the work. 
STANDARD FOR ACCEPTABILITY: This standard is 
met when the offeror demonstrates the ability to schedule 
and accomplish the work in accordance with the 
requirements of the solicitation, and when it demonstrates 
that the offeror's ability to accomplish all work meets or 
exceeds the criteria noted above. This standard is met 
when the offeror demonstrates a clear understanding of the 
scope of work, a plan to provide good customer service, 
12 

and a Quality Control Plan that will ensure successful 
completion of the work. The standard is met when the 
offeror demonstrates a technically feasible approach to 
meet the Government's requirements. 
(Supp. R4, tab 332 at 7075-77) 
21. Section 01 00 50 "TASK ORDER REQUIREMENTS," paragraph 1.8 
"ENVIRONMENTAL DOCUMENTS AND PROVISIONS" provided that the Final 
Environmental Assessment covered the design and construction activities for this 
Project: 
1.8.1. A Final Environmental Assessment (EA) has 
been 
prepared for the International Board corridor in the 
N aco/Douglas, Arizona area and is provided in 
Appendix I. Fence alignment F-1 project corridor 
area is covered by this EA. Specifically design and 
construction activities for primary fence alignment 
F-1 is covered under sections 2.2.1and2.2.1.1 of 
the Preferred Alternative. 
(Supp. R4, tab 334 at 7093, 7095) 
22. The referenced appx. I was the "NOVEMBER 2003 FINAL 
SUPPLEMENT AL ENVIRONMENT AL ASSESSMENT FOR INFRASTRUCTURE 
WITHIN THE U.S. BORDER PATROL NACO-DOUGLAS CORRIDOR COCHISE 
COUNTY, ARIZONA," (Final Supplemental Environmental Assessment) which 
contained the referenced section 2.0 "ALTERNATIVES" that provided, in part, to level 
the existing BPR and to provide low water crossings (L WCs) as needed to drain the area 
(R4, tab 7 at 334-786): 
2.2 PREFERRED ALTERNATIVE 
2.2.1 Primary and Secondary Fences and Vehicle Barriers 
2.2.1.1 Roadways 
13 

Under the Preferred Alternative, no new road construction 
would be required in the Douglas AO. The existing road 
would be upgraded to an all-weather surface and 
experience some widening and leveling to reduce curves 
and slope reducing risks to USBP agents' health 
and 
safety, erosion problems, and maintenance costs. The 
existing road would be widened from 24 feet to 38 feet, 
which would include 2 to 4-foot shoulders on either side of 
the road. These improvements would be required on 
25 miles of existing border roads. In addition, low-water 
crossings would be installed, as needed, in drainage areas. 
Low-water crossings would be constructed using concrete, 
culverts, asphalt, rock gabions, or a combination of these 
materials. 
(R4, tab 7 at 398, 410, 414, 418) 
23. The RFP appx. I, Final Supplemental Environmental Assessment also 
described the use ofLWCs as drainage structures: 
1.1.4.5 Drainage Structures 
Low-water crossings ... would reduce erosion and road 
maintenance without adversely altering existing drainages 
along the border. Low-water crossings are typically 
concrete slabs or culverts with gravel, rip-rap, gabions and 
other erosion control devices placed on the banks in order 
to control erosion. Many of the current washes in remote 
areas are not passable for extended periods of time 
following flood events. In light of this, construction and/or 
improvement of low-water crossings alone would improve 
USBP agents response time through reliable access. 
Engineers typically analyze each drainage and assess 
whether or not a low-water crossing is needed. Analysis 
includes the need for low-water crossings, minor culverts, 
major culverts, bridges or additional improvements. 
(R4, tab 7 at 369) 
24. The appx. I, environmental report in section 4.0 "ENVIRONMENT AL 
CONSEQUENCES" further described L WCs as the preferred drainage alternate: 
4.12.2 Preferred Alternative 
14 

Construction of low-water crossings would generally 
consist of concrete pads placed in the bottom of the 
drainages at road crossings. Temporary effects would 
include increased levels of sedimentation and turbidity. 
The streambed would be permanently impacted by 
concrete paving, although the flow of water would not be 
impaired or impeded since streams in the project corridor 
are mostly intermittent. Impacts associated with 
sedimentation and turbidity would only occur during 
periods of water flow. Construction of these crossings 
would be planned during the dry season and appropriate 
[best management practices] BMPs would be implemented 
during construction; therefore, only minimal erosion 
impacts would occur. 
(R4, tab 7 at 502, 533-34) 
The Site Visit 
25. A pre-proposal site visit commenced on 15 April 2008 at a Border Patrol 
office near Douglas, Arizona. The Corps representative was Mr. James Aldrich. The 
BP representative was Mr. Federico Orozco and appellant was represented by 
Mr. Donald Reynolds. Mr. Aldrich began the meeting and told the participants that he 
would be unable to attend the site visit. (R4, tab 7 at 180, tab 72 at 3767; tr. 2/12-13) 
26. As noted above, two critical specification requirements related to the RFP's 
drainage plan were that the contractor was to confine its work within the RR and that 
the design was required to handle a 100-year flood (see also tr. 7 /206-07). 
27. At the time of the site visit, Mr. Reynolds observed the big ditch between 
the Mexican border and the BPR and the high elevation of the BPR in many areas 
(tr. 2/16-17, 4/97). Mr. Orozco stated that the BP was maintaining the BPR and 
wanted to lower the road elevation in certain areas (tr. 2/100). Noting the extensive 
seasonal flooding of the site, Mr. Orozco also discussed during the site visit (as 
reported by Mr. Reynolds) how the big ditch next to the BPR had been excavated by 
the BP and the BP's preferred drainage solution (tr. 2114-15): 
[The BP] had continually brought in owner operators on 
equipment to come in and excavate, and move dirt, and 
continue to make a road for them that they could drive 
their jeeps on to get through that area after it rains. So they 
had really disturbed the site. 
15 

(Id.) 
And so, he said, what we really need here, and this 
was his description. We need to be able to take the water 
that comes in during these monsoonal events, and we need 
to let the water go where it's been going for 400 years. 
That was the way he said it. If it goes north, it goes 
north. If it goes south it goes south. And just, we don't 
want to interrupt it. We've got this 60 foot Roosevelt 
easement that we're working in. 
And we don't have enough land and room to deal 
with changing the water. The water's coming in. It needs 
to go where it wants to go. We've interrupted it with all 
this grading. 
And so what we need are solutions. And our 
solution would be to let the water out easily in what they 
call Arizona Crossings .... 
. . . So he said, we need enough crossings, Arizona 
Crossings down here to let the water flow. 
And I don't care where it flows. We only have 
60 feet. So if it wants to go that way, let it go. If it wants 
to go this way, let it go. We just don't want to disturb it. 
Just let it go where it naturally has been. He said, that's 
what I think we need right here. 
28. An Arizona Crossing (a type ofLWC) is typically a concrete swale that has 
a side that goes down, then level across the bottom, and then back up on the other side, 
that a vehicle can drive through while they are letting drainage go through the crossing 
(tr. 2/15). 
29. The embankment and excavation on the south side of the BPR acted as a 
dam to contain water flows and preclude it from flowing naturally in a south to north 
direction, forcing it to flow"west to east (tr. 1/235-36, 3/38, 4/97). Because the BP had 
not made arrangements for drainage in constructing and maintaining the BPR, the BPR 
repeatedly washed out (tr. 2/17, 3/26). Mr. Orozco asked the offerors to lower areas of 
the BPR that were excessively elevated even if it necessitated work outside the RR. 
He recommended that the offerors remove the BPR's Class II road base, stockpile the 
16 

base and reuse it after lowering the sections of the BPR. (Tr. 2/18, 3/25-26) 
Mr. Orozco also mentioned that the BP was having serious problems with illegal 
immigrants hiding in the ditch and other depressed areas after crossing the border. For 
similar reasons, the BP did not prefer enclosed box culverts that could be used by 
illegal immigrants for concealment. (Tr. 1193-94, 2/19) The BP was also concerned 
that adjacent private ranchers were not to be cut off from their natural water source, 
i.e., rains falling during the short summer "monsoon" season that replenished existing 
wells and aquifers for the remainder of the year (tr. 2/25-26). 
30. Mr. Reynolds walked the length of the site and took preliminary spot 
elevations during the visit, noting at least eight or nine low areas for MARCON to 
consider in draining the site (tr. 1193, 96, 2/20-21, 3/64). MARCON concluded that 
the best drainage 
solution would be to backfill the ditch and substantially restore 
original contours and flow patterns as requested by the BP (tr. 1194-96). 
MARCON' s Proposal, Evaluation and Award 
31. Following the site visit, MARCON engaged JB Young & Associates, LTD 
(JB Young), an A-E firm, as the designer of record to assist in the preparation of the 
technical proposal (TP). In addition to the RFP, JB Young was supplied with 
information and elevations from Mr. Reynolds obtained during the site 
visit. (Tr. 1161, 
2/22-23, 151; supp. R4, tab 392 at 7613) 
32. On 6 May 2008, MARCON submitted its proposal. The TP included a 
narrative description, two cross sections, and a partial plan view developed by JB Young 
that made it patently obvious that MARCON intended not to construct the Baker/RFP 
west-east concrete drainage ditch or channel the water through CMPs as set forth in RFP 
appx. II. Instead, the TP plainly manifested MARCON's intent to: (1) return the area to 
its original contours, filling in the existing ditch as needed to prevent damming, and 
allowing the water to flow more naturally across the regraded site in a south to 
northeasterly direction as channeled through openings in the fence to L WCs; and 
(2) work north of the RR to the limited extent necessary to lower the BPR and construct 
as many as eight concrete LWCs (with rip rap erosion protection) to transport the water 
across and north of the BPR (over 90% of which was outside the BPR). (R4, tab 11 
at 2504-11; supp. R4, tab 356 at 7404-24, tab 357 at 7430-32; tr. 1197, 101, 2/24-25, 
28-29, 36-37, 40-41, 45, 130, 3/22, 95, 4/103-05, 5/119, 6/142-43, 192-94) Therefore, 
we find that appellant's TP was clear and unambiguous regarding its drainage plan. 
33. In its narrative description of its technical approach, the TP stated: 
Technical Approach & Methodology 
17 

In order to control the damage and erosion caused by the 
expected flooding at this site, Marcon has determined that 
it is best to take a simplified approach to the required flood 
control improvements. Our design reduces the collection 
of water by allowing the drainage to sheet across the 
terrain the way nature once intended. The installation of 
eight (8) concrete crossings with energy dissipaters will 
allow the water to flow in a northerly direction where it 
will be absorbed by the soil and will help replenish the 
underground aquifer used by water wells in this region. 
Allowing water to utilize sheet drainage also eliminates the 
negative effects that could occur if design allowed for 
collection of large amounts of water which it is believed 
would flow in the direction of the City of Douglas and 
potentially cause flooding there. Marcon is proud to add 
that this design also reduces the number vertical structures 
such as culverts, berms, and channels that can and have 
been used for concealment by intruders, thus helping to 
increase security measures and Border Patrol efforts so 
critical to this mission. 
Marcon understands that the elevation of the existing 
patrol road is too high in many areas. The Class II Base 
will be lowered and brought into adjustment with original 
flow contours. This Base material will be removed 
and stockpiled in the areas of grade change and will be 
re-applied over the new grade. The overall road grade 
will remain higher than the surrounding soils and will have 
the benefit of concrete crossings that extend continuously 
from the barrier which provides open water excavation. 
The concrete crossings and maintenance road will be 
constructed with down turned, cut-off footings and rip rap 
energy dissipaters, which will follow closely behind the 
installation of barriers further reducing the risk associated 
with inclement weather and/or human events. 
(Supp. R4, tab 357 at 7430-31) 
18 

34. The proposed L WCs in the TP were designed to be shallow enough that 
vehicles could drive across them during the rainy season. The L WCs were designed 
with a 30-foot wide flat bottom with approximately 5% rise on each side to convey 
water at a 
rate of 500-600 cubic feet per second ( cfs) per L WC with approximately one 
foot of depth (tr. 4/99). 
35. Ms. Maryory Contreras, appellant's president and an engineer, was 
extremely concerned that Baker's conceptual west-east design and drainage structures 
envisioned by the RFP and confined to the RR could not meet the 100-year flood 
requirement. She considered that: the drainage design in its proposal was the optimal 
solution that could contain and convey peak 100-year flows, was in accordance with 
the expressed desire of the Border Patrol, and, necessitated only minor infringements 
of the RR requirement. She also considered that, because the answer to the offeror 
question (findings 14, 15) permitted some work on the BPR (which was 90% outside 
the RR) and the west end culverts required limited work outside the RR, the proposal 
would be technically acceptable. If not, she considered that the government would 
simply reject MARCON's proposal as unacceptable. (Tr. 1/102, 3/24-25, 27, 64) 
36. Following receipt of task order proposals from four approved MATOC 
contractors including MARCON, the government convened a Source Selection 
Evaluation Board (SSEB) on 8 May 2008 to evaluate them in accordance with the 
LPTA criteria detailed above. The SSEB determined that MARCON's proposal was 
technically acceptable without mention of the patent drainage design deviation (as well 
as other deviations) proposed by MARCON. The only evaluator to testify was 
Mr. Aldrich who considered that ifhe had known that appellant proposed working 
outside the RR, the SSEB would have rejected the proposal. The SSEB did note that 
appellant's 115-day schedule for completion of the work "exceeds the RFP." It also 
clarified that appellant's quality control representative would not also serve as 
MARCON's site superintendent. After noting that MARCON's proposed firm-fixed 
price of$5,444,171 was only 46.4% of the independent government estimate of 
($11,723,000), the SSEB concluded that MARCON "represents the best value to the 
government by being the lowest technically acceptable offeror." There is no 
evidence 
that a price realism analysis was performed. (Supp. R4, tab 358 at 7433-36, 7438-41; 
tr. 6/139; ex. A-35 at 1, 13, ex. G-41 at 3-19) 
37. The Source Selection Authority (SSA) also found that MARCON's TP was 
technically acceptable and the TO contract was awarded without discussions to 
MARCON on 16 May 2008 (supp. R4, tab 358 at 7438-41; ex. G-41at9, 11). The 
original contract completion date was 30 September 2008. As extended, the contract 
completion date was 19 October 2008. The project was 
"accepted" by the government 
by the revised completion date. (Supp. R4, tab 506 at 8460, tab 509 at 8565; tr. 6/133) 
19 

The Pre-Construction Conference and RFI-0003 
38. Following award, a pre-construction conference was conducted on 5 June 2008. 
At the meeting, the subject of working outside the RR in accordance with MARCON's 
TP was discussed. (Supp. R4, tab 361 at 7459, tab 362 at 7499; tr. 1/130-32, 3/183) On 
6 June 2008, the government emailed appellant stating in part: 
2. Yes, all work to be done is within the 60' Roosevelt 
Easement. If your proposed work extends beyond this 
parameter, we will have to go through regulatory which 
will take time. I would recommend that all of your 
instaaltions [sic] be designed within the 60' easement. 
3. The Roosevelt Easement parallels the borderline and 
extends North 60'. Some of the existing National Guard 
all-weather road goes beyond the 60' corridor (easement) 
however you can still use this road. Your work is limited 
to the 60' Roosevelt Easement. 
(Supp. R4, tab 364 at 7501) 
39. On 10 June 2008, MARCON submitted Request for Information Report 
(RFI) 0003, attaching its TP drainage plan (supp. R4, tab 370 at 7511). RFI-0003 
stated in relevant part: 
RFI SUBJECT: Marcon Proposed Design 
INFORMATION REQUESTED: 
[MarCon Proposed Design -] Marcon prepared and 
submitted with our bid a technical proposal that was 
based on the RFP documents and discussions with 
USA CE (Dick Aldrich)/USPB (Federico Orozco) during 
the pre-bid site visit. It is MarCon's understanding that 
the project was awarded to MarCon based on the pricing 
and technical proposal ... that was discussed at the pre­
bid site visit and included in our technical proposal was 
the concept of restoring the water flows to more closely 
match the historic flows in the area of our work. The 
MarCon proposal included small areas of work outside 
of the 60' Roosevelt Reservation that were necessary to 
move the water to the north side of the existing access 
road that was previously installed by the government 
adjacent to, but outside of, the northern boundary of the 
Roosevelt Reservation. 
20 

Accordingly, MarCon is proceeding with our design 
efforts based on the concepts shown in our Technical 
Proposal. If there are known areas of concern with that 
proposal, we request that they be expressed 
immediately, to avoid any re-design issues/costs. 
(Supp. R4, tab 370 at 7511) 
40. On 12 June 2008, Mr. Ron Baker of the government's design firm sent an 
email to an associate in his firm stating: 
Bit of a problem that I think you can help with. MarCon 
Engineering was awarded the F-1 fence project. I went to 
the pre-con meeting last week and walked the site. In their 
technical proposal (which I'm forwarding) they provided 
sketches that clearly show their disturbance would go 
outside the 60 [foot] easement. This technical proposal 
was obviously accepted by the powers that be and nobody 
mentioned their encroachment on private lands (outside the 
Roosevelt). Anyway, was there 
anything in the RFP that 
stated they had to stay within the easement? They are 
saying that if they do, it will completely change their 
design. Please advise ASAP. 
(Supp. R4, tab 370 at 7509) 
41. On 16 June 2008, MARCON emailed JB Young expressing the view that 
the Corps was "leaning toward directing us to stay within the 60' easement. This 
could radically affect our proposed design." The email further indicated that 
MARCON and JB Young should not put "much effort into the design until we have a 
final answer to this question." (Supp. R4, tab 371 at 7519) 
42. MARCON received the Notice to Proceed from the Corps on 17 June 2008 
(R4, tab 13 at 2576). 
43. On 19 June 2008, the Corps' Mr. Aldrich responded to appellant's oral inquiry 
made at the 5 June 2008 pre-construction conference regarding the RR restriction issue 
stating that MARCON should "proceed per your contract" and, when pressed, stated that 
the TP was 
"part of your contract." On 24 June 2008, MARCON gave JB Young the 
"go-ahead" to proceed with the design. (Supp. R4, tab 382 at 7578) 
44. On 23 June 2008, appellant mobilized to the site and on 24 June 2008 
began surveying and taking preparatory actions for site grading. On 25 June 2008, 
21 

MARCON began building a construction haul road in the existing ditch. (R4, tab 19 
at 3188; supp. R4, tab 379 at 7549, 7552, 7554) 
45. On 3 July 2008, appellant received the government's response (dated 
24 June 2008) to RFI-0003, which stated: 
First of all, your RFI states that your proposal indicated 
and mentioned "small areas of work outside the 
60' Roosevelt Reservation" that you will be designing to 
move water to the north side of the existing roadway .... 
I have reviewed the site plans included in the RFP and only 
see one area that work will be required outside the 
60' reservation, and that area is the drainage culverts 
adjacent to Kings Road on the west end of the project site. 
The work outside the 60' reservation in this area is on Fish 
and Wildlife property and has been coordinated by 
USA CE Real Estate Section prior to the award of this 
contract. Work on federal or state land outside the 
60' reservation can occur providing all permits and 
requirement are met. The Contractor is not to work outside 
the 60' limit on private property. 
If there is more than one area of work other than the area 
mentioned above, please inform this office. 
(Supp. R4, tab 374 at 7524-25) 
46. As noted above, there were several clearly-defined "area[s] of work other 
than [the west end culverts]" that were indicated in the TP outside the RR. There is no 
evidence that the government considered (in its response to RFI-0003) these other 
areas or the LWCs shown in the TP, involving work on "private property." Nor were 
explanations provided regarding the nature and necessity for additional "permits and 
requirements" that might be needed for appellant to work outside the RR on 
government-owned land. 
Site Flooding Issues, July and August 2008 Performance, and RFis 0007-0009 and 0011 
47. Extensive rains often flooded the site during late June and early July 2008 
(R4, tab 415 at 7721-35). The water flowed west to east through the existing ditch and 
over the BPR at various points. The construction access road that MARCON was 
constructing in the ditch was repeatedly washed out by rain and MARCON was unable 
to dispose of the water north without working outside the RR. The existing culverts at 
22 

both the east and west ends of the site were not properly conveying the intensive rains 
experienced in July off site and the rains further eroded the ditch. (Supp. R4, tab 394, 
tab 396 at 7629; tr. 1/144-46, 150-51, 154-66, 4/84, 87, 89-90, 6/168) After observing 
the flooding, JB Young prepared a memorandum of the site visit dated 3 July 2008 
noti~g the drainage issues and the inability of the existing culverts to transport the 
water off site and stating: 
On July 03, 2008, the project design engineer travelled to 
Douglas, Arizona to personally inspect the proposed fence 
site. The timing of the inspection trip was fortuitous in 
that conditions also allowed us to observe the results of a 
significant storm event. The fence site is unimproved with 
an aggregate surfaced Border Patrol road running the full 
length of the project, with an overall offset of 
approximately 40 feet northward of the actual border. The 
existing terrain along the border is gently undulating with 
little significant topographic relief. Erosion has created a 
major ditch parallel to the border where storm run-off has 
found its path across the patrol road to get back to its 
natural discharge point in a wash in the United States. The 
erosion has left the inlets of the existing corrugated metal 
culverts crossing the patrol road significantly above the 
actual flow line of the existing ditch. The net result of the 
erosion is that the existing culverts should be lowered -
OR - removed and replaced with low-water crossings - to 
restore the natural drainage flow through the area. 
Significant earthwork will be required along the ditch to 
mitigate the erosion damage and protect the proposed 
fence improvements. Direct observation of the storm flow 
aided in locating the two main low water crossings (east 
and west ends of the project) as well as the three minor 
internal low water crossings that will discharge to the 
stabilized longitudinal ditch. 
(Supp. R4, tab 441 at 7922) 
48. On 11 July 2008, appellant submitted three RFis (RFI-0007 to RFI-0009). 
RFI-0007 requested permission to remove the 60" (5 foot) west end culvert: 
INFORMATION REQUESTED: 
The recent rains have revealed that the drainage in the 
area of our new fence is obstructed due to an existing 
culvert (approx. Sta 216+75) having invert elevations 
23 

higher than the adjacent terrain. The drainage is not 
diverted away from our work area as would be expected. 
Marcon considers this to be a differing site condition 
that must be addressed immediately. 
CONTRACTOR RECOMMENDATION: 
Recommendation: USA CE approve removal of the 
culvert and installation of a concrete .. .low-water crossing 
at this location-at an elevation that will provide positive 
drainage from south to north. Due to the ongoing rains, 
this work needs to be done prior to continued Marcon 
work in the existing channel. This work was not 
included in our contract price, however, if approved as 
recommended, this low-water crossing would be 
considered as one of our low-water crossing[s]. 
(Supp. R4, tab 398 at 7635) 
49. RFI-0008 requested approval to remove the two 10-foot east end culverts 
(requiring work north of the RR) because they were not properly draining the site, 
were causing water to back-up, and were contributing to work site flooding (supp. R4, 
at 7636). RFI-0008 stated in part: 
There are two (2) large CMP culverts at the east end of the 
project (approx. Sta. 168+00). The invert elevation of 
these culverts is higher than the adjacent terrain, causing 
flooding of the work area and water flows across the 
existing Border Patrol access road. This condition was 
noted during the pre-proposal job walk and MarCon 
included in our acceptable/approved Technical Proposal 
the removal of these culverts and construction of a PCC 
low-water crossing to reduce problems with water backing 
up/overflowing the access road. MarCon requests 
direction from the government regarding removal of the 
existing culverts and construction of a PCC low-water 
crossing. We consider this construction work to be 
included in our contract. If the culverts are not removed 
MarCon will consider that to be a differing site condition 
which may impact the cost and/or time of our work. 
24 

CONTRACTOR RECOMMENDATION: 
USACE approve Marcon proposal to remove culverts and 
construct PCC low-water crossing at this location. 
(Supp. R4, tab 399 at 7636) 
50. Also, on 11July2008, MARCON submitted RFI-0009 requesting 
permission to reduce the eight L WCs proposed in its TP to the five determined to be 
sufficient by JB Young as follows: 
MarCon's surveyors have identified at least five (5) natural 
drainage crossings along the length of the project, and our 
civil designer is recommending that low water crossings be 
installed at those drainages to restore flow of run-off to the 
north side of the existing Border Patrol access road. In 
MarCon's acceptable/approved 
Technical Proposal we 
included eight (8) of these low-water crossings, based on 
preliminary review of the topographic information included 
in the FRP. MarCon is requesting a variance from the 
Technical Proposal to reduce the number of low-water 
crossings from eight (8) to five (5), per the [advice] of our 
civil designer. Crossings would be constructed as shown on 
the acceptable/approved Technical Proposal, terminating at 
the toe of the northern side of the existing Border Patrol 
road. 
(Supp. R4, tab 400 at 7637) 
51. Removal of the west end culvert was orally approved (tr. 6/168). On 
17 July 2008, appellant transmitted cost data and the following email to Mr. Aldrich 
regarding work accomplished to remove the 
west end culvert and construct a 
temporary L WC in the area to divert the water: 
Please consider this e-mail as Marcon's notification that 
we are performing the work described below at the existing 
60' culvert located at approx. Sta. 217+00. This work is 
considered to be pursuant to a differing site condition and 
is being performed outside of the 60' Roosevelt 
Reservation limit of work with full knowledge and 
concurrence ofUSACE project personnel. Costs for this 
work are being collected as the work is proceeding and 
will be submitted in a cost proposal once they can be fully 
assessed. There will also be a request for time extension 
25 

and payment of delay impact costs as a result of this 
differing site condition. 
(Supp. R4, tab 405 at 7664) 
52. The government responded via email dated 17 July 2008 as follows: 
If you would refer to the RFP, these particular culverts are 
addressed to be dealt with in the Baker design within the 
RFP. We discussed the situation with going beyond the 
60' easement and came to conclusion that if it was 
specified to be dealt with in the RFP, whether it was within 
or out of the 60' easement, it would be covered. This 
particular location is the 1 and only 
location in the RFP 
that gives direction to do outside 
the 60' easement. 
Therefore there is no justification for the additional funds 
you are referring to. 
(R4, tab 68 at 3759) 
53. On 21July2008, MARCON submitted RFI-0011 stating in part: 
INFORMATION REQUESTED: 
The government response to RFI No. 0003 reference[s] 
coordination by USACE Real 
Estate Section and Fish 
and Wildlife in order to do the culvert work on the west 
end of the project. The response also states that "work 
on federal and state land outside 
the 60' reservation can 
occur providing all permits and requirements are met". 
Has [sic] the permits and all other requirements been 
met so that this work can take place. 
(Supp. R4, tab 389 at 7599, tab 422 at 7828) 
54. The government did not respond to this email until 8 August 2008 on 
which date it indicated that it had the permits, even though it knew that all necessary 
permits for work on government-owned land were already on hand (supp. R4, tab 422 
at 7828; tr. 6/216). 
55. Heavy rains continued during early August 2008. On 7 August 2008, the 
government informed MARCON that proceeding with grading and concrete placement 
would be at appellant's risk pending design approval. (Supp. R4, tab 464 at 8084, 
8086,8089,8092, 8095) 
26 

56. In an email to the Corps dated 13 August 2008, Mr. Orozco of the BP 
expressed his 
concerns regarding, inter alia, returning the land to its natural state as 
reflected in one ofMARCON's disapproved design submittals (see below) and 
regarding the potential intensified erosion in the ditch and along the southern slope of 
the BPR (supp. R4, tab 437; tr. 6/199-201). The email stated in part: 
Comments Re: F-1 Project located in Douglas, 
Arizona 
In reviewing the supposed 100% plan we (Douglas Border 
Patrol) noted some deficiencies and we would like some 
clarification. 
Comments: 
1. What justification does the contractor give for having 
strayed from the original request of returning the area 
back to its natural state (i.e. leaving the un-natural 
A WR [all-weather road] where it is)? 
2. It is not difficult to get a ROE [right of entry] 
beyond the 60' Roosevelt easement, especially in 
this area where all landowners are adamant about 
getting water back onto their land. Why then is 
there no new A WR3 in the current design? The 
current design only includes a 12' maintenance road 
adjacent to the fence and will take up all of the 60' 
and leave us with no recourse if the landowners 
decide to push the issue of the current A WR and the 
fact that it is on their land. The design leaves no 
room for an A WR to be moved onto the 60' at a 
later date. 
3. If left as is the new design will cause water to flow 
over the existing road and will eventually cause it to 
erode (more problems for the Border Patrol). 
4. The Border Patrol expected this to have been an all 
inclusive package where at the end of the day we 
would not be dealing with landowners, ROE's, and 
extensive maintenance. Somewhere along the line 
there appears to have been a breakdown in 
communication where Fence became more 
important than the project as a whole .... 
3 The existing A WR is the BPR (tr. 6/199-200). 
27 

5. Is the maintenance road going to be concrete or a 
combination of dirt and concrete? 
6. We want to make sure that there is a good transition 
between the new and existing roads regardless of 
whether or not they fall within the construction 
footprint. 
(Supp. R4, tab 437) 
57. Also on 13 August 2008, Ron Baker emailed the government as follows: 
Yesterday during the meeting 
w/Marcon, Federico Orozco 
(BP Agent) expressed some concern w/RE [real estate] and 
stated that he wanted to discuss withe corps the possibility 
of purchasing additional land (approximately 120' north of 
the border) in this area and said that this was brought up 
during the planning for this project. There is already the 
60' easement, but he wants another 60' or so that it will 
include the existing all weather road they are currently 
using. Can you contact him and see if you can give him 
some input? I really don't have much visibility on RE 
purchases nor on the front-end planning of these projects. 
(Supp. R4, tab 435) 
58. Appellant's subcontractor placed the first concrete pour for the access road 
immediately adjacent to the fence line on 15 August 2008 and MARCON began 
staging 16 foot prefabricated fence panels for erection on 18 August 2008 (supp. R4, 
tab 464 at 8121, 8126). 
59. Beginning with its "50% design submittal" of7 July through 20 August 
2008, appellant submitted various drainage plans as part of its design or other 
submittals. 4 These submittals reflected an fotent on the part of JB Young to develop a 
drainage plan melding the RFP concept of placement of a concrete west-to-east 
drainage channel with the TP approach of placing L WCs that were designed to 
transport some of the water off the site and north of the RR. Although JB Young 
attempted to stay within the RR, to a minor extent, the L WCs required work north of 
the RR. 5 These submittals were not approved by Baker based, inter alia, on 
indications therein of the minor work outside the RR. (Tr. 1/160-61, 168, 174-75, 180, 
4 These submittals were transmitted on 7 July, 16 July, 24 July, 27 July, 11 August, 
and 20 August 2008 (see citations to record in above finding). 
5 As discussed below, it was impossible to satisfy the 100-year flood requirement 
while staying within the RR. 
28 

3/153, 161, 165, 173-76, 240-41, 244-48, 250, 7/162, 273-77; supp. R4, tab 390 
at 7603-04, tab 404 at 7652, tab 391at7609, tabs 398, 415 at 7762, tab 420 at 7807, 
7812, tab 427 at 7844, 7849, 7850, tab 430 at 7866, tab 458 at 8019, tab 459 at 8049; 
R4, tab 150 
at 5899, tab 188 at 6608) 
60. On 10 September 2008, an unknown Corps' official issued a response to 
MARCON's RFI-0008 stating, "[t]his RFI was previously addressed. The contractor 
is to submit a design for acceptance that addresses all drainage issues." (Supp. R4, 
tab 399 at 7636) 
61. On 10 September 2008, an unknown person in the Corps issued the 
following identical responses to both RFI-0007 and RFI-0009: 
GOVERNMENT RESPONSE TO CONTRACTOR: 
This RFI was previously addressed. It is the 
contractors responsibility to address the flow 
calculations for the entire project-area and provide a 
design that creates positive drainage throughout the 
project. The CMP is shown on the RFP drawings 
therefore this is not a change/differing site conditions. 
The project-design must be approved by the IBWC to 
ensure compliance with all drainage issues per contract 
requirements. 
(Supp. R4 tab 398 at 7635, tab 478 at 8220) 
62. Notwithstanding the oral approval (see finding 51), neither Mr. Aldrich nor 
the government's expert Mr. Blair could identify any document in the record where 
RFis 0007-0009 had been "previously addressed" (tr. 7/12, 14, 306-07). 
63. On 11 September 2008, Daniel C. Fodrini (USACE) emailed John G. Taylor 
(USACE) regarding permitting: 
In response to your question regarding the 
Governments 
right to use Fish and Wildlife property along the border for 
the F 1 Segment, the Government has a special use permit 
for staging and access in this area. Several months ago 
there were discussions regarding what would be done 
when the permit expired on 9-10-09. At that time the 
decision was made that any further use of the property for 
staging, access or any other project related need would be 
29 

covered by the waiver. If you have questions, give me a 
call. 
(Supp. R4, tab 480 at 8222) 
September 2008 Performance and Authorization to Work North of RR 
64. As of 29 August 2008, 72 fence panels had been delivered to the site. As 
of 5 September 2008 final structural drawings had been submitted to Baker and were 
approved by Baker on 9 September 2008. MARCON began foundation trenching, 
pouring the concrete foundations and erecting fence panels at the urging of the 
government even without an approved drainage plan so that fence construction would 
be complete by 30 September 2008. (Tr. 1/167, 192-93; supp. R4, tab 464 at 8145, 
8151, tab 467 at 8165, 8169, tab 509 at 8481-82) 
65. On 25 August 2008, MARCON decided to employ another design firm, 
Urban Engineering (Urban) as a result of the inability to obtain an approved drainage 
design plan.6 On 12 September 2008, Urban submitted "INTERMEDIATE 100% 
SUBMITTAL" drawings also showing riprap erosion protection work for the south 
slope of the BPR outside the RR along the western end of the site and continuing east 
(onto private property) designed to divert the large flows coming from the southwest 
to the east down the concrete west-east channel. Some of the water flowing down the 
west-east channel was designed to be discharged north of the RR, across the BPR and 
private property. (Supp. R4, tab 457 at 8011, tab 485 at 8308, tab 492 at 8416, 8418, 
8421-23; tr. 11177-79, 4/44-45, 119-20, 134-35, 51124-25, 6/179-81, 226, 7/286, 
289-92; ex. G-50 at G0031-32) 
66. The 12 September Urban drawings also indicated approximately 50% of 
the demolition of the non-functional east end culverts would occur outside the RR and 
that approximately 2/3 of the concrete L WC to be installed at the east end would be 
north of the RR on private property. Urban's calculations of the flows were 
incomplete and the submittal did not evince compliance with the 100-year flood 
requirement. Baker disapproved drainage-related portions of the submittal noting the 
work outside the RR and requiring resubmittal. (Tr. 11194-95, 199, 209-12, 4/18-22, 
50-51, 131-33, 141-42, 5/123-27, 127-28, 6/177-78, 181-84, 7/297-98; supp. R4, 
tab 492 at 8418, 8425-29) 
67. Drainage issues were discussed extensively at a 16 September 2008 weekly 
construction meeting attended by the parties, BP and Baker. At this meeting, the 
Corps authorized appellant to develop a drainage plan based on a variant of 
MARCON' s original TP plan to construct L WCs that extended north of the RR 
6 MARCON did not formally terminate JB Young's subcontract to provide design 
services until 18 September 2008 (supp. R4, tab 496 at 8440). 
30 

eliminating any need for construction of the west-east channel, provided that it obtain 
the approval of affected private landowners. The BP representative gave assurances 
that the adjoining private landowners "would not mind" and offered his assistance in 
obtaining their approval. (Tr. 11143, 194-95, 199-201, 2083/128, 4/18-20, 6/245) 
68. A meeting with the adjoining private landowners, Union Grandera 
Regional de Sonora (the Cattlemen's Association), was scheduled for 16 September 
2008 and an agreement granting an easement authorizing MARCON to construct 
LWCs encroaching onto the private property was reached (supp. R4, tab 491at8413, 
tab 503 at 8452, 8454, tab 505 at 8458, 509 at 8520; tr. 11215-17). 
69. MARCON conducted necessary additional surveys north of the RR impacted 
by the planned LWCs and began the redesign of the drainage plan (tr. 11213-14, 4/22, 
25-26, 52). 
70. Minutes of the 23 September 2008 weekly meeting stated, inter alia, that 
the design had been approved with the exception of the drainage plan and that 
MARCON had provided documentation substantiating its rain 
delays and 
commensurate modification of the completion date (supp. R4, tab 503 at 8448-49). 
71. As of 19 September 2008, MARCON had completed installation of the 
fence and its adjoining access road. On that date, Mr. Aldrich notified the contracting 
officer of the completion of the fence and further indicated that a modification was in 
process to extend the contract completion date by 18 weather days to 18 October 2008. 
Mr. Aldrich also noted that the remaining work involved "punch list" items. 
Modification No. R00101 granting the time extension for weather delays was issued 
on 2 October 2008. (Supp. R4, tab 498 at 8442, tab 506 at 8460, tab 508 at 8464, 
tab 509 at 8561-62) 
72. As of the 30 September 2008 weekly meeting, Urban was working on the 
drainage redesign. However, appellant intended to proceed with some work associated 
with the LWCs, including demolition ofLWC-related concrete previously placed on 
the fence access road, in anticipation of Urban's redesign changes and associated 
regrading/excavation and filling in the ditch between the fence access road and BPR. 
(Supp. R4, tab 508 at 8466, tab 512 at 8570, tab 522 at 8745; tr. 11219-20) 
Project Completion and Acceptance 
73. Urban completed its final drainage redesign on 13 October 2013 reflecting 
LWCs extending north of the RR as set forth in MARCON's TP. Two of the LWCs in 
the plan were designed to deposit water exclusively onto private land. (Supp. R4, 
tab 515 at 8579; tr. 3/64, 7/303) 
31 

74. The 100% complete drawings submittal and design analysis were dated 
17 October 2008 and approved on 10 November 2008 (supp. R4, tab 518 at 8736-38, 
tab 529 at 8891-94, 8897, 8899; tr. 2/222-28). 
75. The government "accepted" the project on 18 October 2008. However, 
appellant continued to place concrete and construct the LWCs, conduct associated 
excavation/regrading operations and restore the BPR as necessary, and complete 
"Punch List" work through 22 November 2008. Much of this extensive, out-of-sequence, 
post- "acceptance" work was performed outside the RR on private property. (Supp. R4, 
tab 521 at 8780-97, 8809-24, tab 522 at 8827, tab 530 at 8907, 8912, 8917-20, 8923, 
8926, 8930, 8936, 8944-58, 8961; tr. 1/221-22) 
Expert Analyses 7 Claim and Final Decision 
76. Mr. Ivan R. Fox testified as an expert for appellant. Mr. Fox graduated 
from San Diego State University in 1981 with a Bachelor of Science in Civil 
Engineering. Mr. Fox is a Professional Engineer and the Managing Principal Engineer 
at San Dieguito Engineering, Inc. (SDE), where he is responsible, inter alia, for civil 
engineering design, hydrology and hydraulics, and storm water management. He has 
extensive construction/engineering experience acquired over 30 years regarding 
drainage issues. (Ex. G-47; tr. 4/57-59) 
77. Mr. Kenneth W. Blair testified as an expert for the government. Mr. Blair 
earned Bachelor of Science (1969) and Master of Science (1971) degrees in Civil 
Engineering from Rutgers University. He is also a licensed Professional Engineer and 
has extensive experience in a 
wide variety of construction/engineering projects and 
construction management, including structural engineering. He is currently a principal 
at K.W. Blair Consulting, LLC, and provides consulting services on a wide variety of 
matters. (Ex. G-42 at 4, 23-24) 
78. In addition to the fact that Urban's 12 September 2008 drainage design was 
disapproved for failure to stay within the RR, Mr. Fox testified that the Urban design 
was incomplete with respect to flow volumes and would not have complied with the 
100-year flood requirement in any event. We find his testimony persuasive and 
confirms other evidence that the 12 September design would not have complied. 
Satisfying the 100-year requirement would have necessitated encroaching to a much 
more considerable extent on private land north of the RR than shown in the Urban 
design. (Tr. 1/194-95, 199, 4/20-22, 141-42; supp. R4, tab 518 at 8734) 
79. The RFP appx. II conceptual design consisted of the existing 60-inch CMP 
shown on the west end of the site, two new 24-inch CMPs that were to be installed at 
7 Certain citations in our findings above also reference and rely on expert analyses by 
Mr. Fox and Mr. Blair for support. 
32 

the west end by MARCON and the two existing 10-foot CMPs for water to exit on the 
far eastern end after being channeled west to east down the one mile concrete channel. 
Both Mr. Fox and Mr. Blair agreed that the RFP appx. II drainage concept as a whole 
could only have handled a maximum of2000 cfs. flows, i.e., about 50% of the 4,000 
cfs 100-year flood flows, assuming that the existing CMPs were fully functional and 
not too elevated 
above flow lines to drain the water. (Tr. 3/30, 45-46, 96-97, 4/64-67, 
79-83,89-93, 116-17, 159, 183, 7/217-23,280) 
80. Both appellant's and the government's expert 
also agreed that the RFP's 
100-year flood requirement could not be met without performing additional drainage 
work extending north of the RR and outside the project limits onto both public and 
private land (tr. 4/92-93, 112-13, 7/220-23, 282-84). 
81. Based on Mr. Fox's persuasive testimony, we find that MARCON's TP 
drainage conceptual plan, channeling storm water through L WCs spaced along and 
adapted to the one mile project site and extending north of the RR and BPR, was a 
reasonable approach and design solution that would satisfy the 100-year flood 
requirement and satisfied that requirement as refined and built (tr. 4/94-98, 163-64, 
7/309-13, 315-16). 
82. Government requirements to confine the drainage design to the RR prior to 
16 September 2008 caused appellant to incur additional costs, inter alia, related to: 
inefficient, out-of-sequence performance of the drainage work both before and after 
the "acceptance" of the work through 22 November 2008; additional costs associated 
with redesigning the work in attempts 
to comply with the RR requirement as well as 
after elimination of that requirement after 16 September 2008; additional surveying, 
excavation/grading, labor and materials costs. (Tr. 1/139-40, 177-79, 203, 236-39, 
3/137-38, 196, 4/164-70, 219-20, 7/318; supp. R4, tab 511 at 8568)8 
83. On 23 March 2009, appellant filed a certified claim in the amount of 
$1,993,316 with the contracting officer (R4, tab 6 at 139). As the litigation has 
evolved, three sub-claims included within the overall claim were identified for 
resolution, i.e., the drainage claim described above, and the two sub-claims discussed 
below: the 10-foot east end CMP removal claim and the fence foundation claim (id. 
at 139-53). 
84. The claim was denied by final decision dated 6 October 2010 (R4, tab 2 
at 16). Appellant timely appealed the final decision on 27 December 2010 (R4, tab 1). 
8 These costs among others shall be considered in pricing the equitable adjustment due 
appellant on remand in accordance with our decision below. 
33 

The 10-Foot East End CMP Removal Claim 
85. During the pre-proposal site visit, appellant observed the existing 10-foot 
corrugated metal pipes (CMPs or culverts) at the east end of the site under the BPR. 
The CMPs as noted above under the RFP's appx. II design were intended to transport 
water under the BPR and off the site at the end of the RFP design's west-to-east 
concrete channel. At the time of the site visit, there was no exposed concrete 
foundation or headwall encasing the culverts. Appellant's Mr. Felix W. Lewis who 
was present during the site visit considered that if the CMP were encased in concrete, 
it would be abnormal not to see visible evidence of a concrete headwall. (Ex. G-51 
at 151-53, ex. A-8-4 at 85; tr. 1/105, 6/119) 
86. The RFP's conceptual drainage design with the west-east concrete drainage 
ditch did not contemplate removal of the 10-foot wide CMPs passing under the BPR. 
The inlet end and roughly 50% of their approximate 40-foot length were within the RR 
and the remaining length and outlet end extended beyond the RR onto private 
property. However, MARCON's TP drainage plan included removing the east end 
culverts and replacing them with the LWC's. In estimating the culvert removal work, 
appellant assumed that the CMPs were not partially encased in a concrete foundation. 
(Supp. R4, tab 353 at 7336-37; tr. 1/10-15, 2/49, 59, 61177-78) 
87. As noted above (finding 49), on 11 July 2008, RFI-0008 requested 
approval to remove the two 10-foot east 
end culverts (requiring work north of the RR) 
because they were not properly draining the site, were causing water to back-up, and 
were contributing to work site flooding (supp. R4, tab 399 at 7636). 
88. MARCON began removing the east end culverts on 23 August 2008 to 
allow the flows to exit the site. When 
appellant began to excavate and remove the 
CMPs, it discovered that there was a concrete foundation under the CMPs with dirt 
above the culverts between the CMPs and the BPR. (Supp. R4, tab 464 at 8133; 
tr. 6/121-22) 
89. Removal of the CMPs occurred from approximately 23 August through 
2 September 2008. On 3 September 2008, appellant brought a concrete breaker to the 
site and continued to break up and haul off the concrete until mid-September 2008. 
(Tr. 11189-90; supp. R4, tab 509 at 8472-522; R4, tab 
6 at 2793) 
90. On 9 September 2008, appellant received a response to its RFI-0008 
submitted to the government on 11 July 2008 (finding 87). The response stated that 
MARCON needed to submit an acceptable drainage design but neither expressly 
authorized nor refused to authorize the removal of the culverts (tr.1/165-66). 
The record does not contain any contemporaneous government objection to 
MARCON' s performance of the culvert demolition/removal work during the 
23 August to mid-September 2008 period. 
34 
I 

91. The fact that the BPR ran over the culvert would not have been an 
indication "one way or the other" whether the CMP had a concrete foundation 
(tr. 6/121-22). 
92. However, we find based upon the testimony of Mr. Blair and Mr. Aldrich 
that the presence of a concrete foundation/partial easement supporting these very large 
corrugated metal pipes was not unusual and should have been anticipated by appellant. 
Moreover, given the extremely high flow capacity (800 cfs.) of each pipe, concrete 
should reasonably have been anticipated to prevent erosion and ensure the stability of 
the pipes. (Tr. 6/119, 7/112-16; ex. G-42 at 15) 
The Fence Foundation Claim 
93. Section 01 00 50, "TASK ORDER REQUIREMENTS," paragraph 1.10, 
"FENCE DESIGN AND CONSTRUCTION," subparagraph 1.10.1. "General" stated: 
Standard Fence Details provided in Appendix III have 
been developed so [as] to meet Border Patrol operational 
needs. The Design/Build Contractor shall provide all 
design necessary, as out-lined in this 
RFP, so [as] to be 
able to site adapt the Standard Fence Details and finalize 
the Fence design and construction for Fence F-1. The 
following design criteria provide the Standard Fence 
Details to be used along with other design criteria. 
(Supp. R4, tab 334 at 7093, 7098) 
94. Section 01 00 50, "TASK ORDER REQUIREMENTS," paragraph 1.5 
"DESIGN REQUIREMENTS AND PROVISIONS," states at subparagraph 1.5.4. and 
1.5.7., in part: 
1.5.4. It shall be the responsibility of the Design/Build 
Contractor to provide final design for the fence 
along with all related site and foundation design. 
From this point forward, the term 'fence design' 
shall include all design required for the fence, all its 
components and fence foundation. All remaining 
design and construction required of the 
Design/Build Contractor to complete the 
construction of the fence shall be in accordance 
with the criteria contained herein using industry 
standard materials and efficient practices. 
35 

1.5.7. This RFP and its referenced documents define the 
necessary criteria to plan and design the fence 
project. The Standard Fence Details (Appendix Ill) 
were developed by USACE, Fort 
Worth District, 
and a contracted A/E. These details shall be 
considered typical construction. The Design/Build 
Contractor shall fully design and construct this 
fence project and all its components using the 
Standard Fence Details along with all other design 
criteria and specifications set forth within this RFP. 
Deviations from the criteria will not be allowed 
unless prior approval is obtained from the 
Contracting Officer's Representative .... 
(R4, tab 334 at 7093-94) 
95. Part of appellant's site adaption responsibilities involved fitting the fence to 
the contours of the land and allowing for the passage of water (tr. 11114). The RFP 
fence design was one of several fence baseline designs developed by Baker that were 
intended to best suit the terrain where the fence would be installed over its entire 
250 mile length (tr. 5/89-92). 
96. Under section 32 31 00.00 00, "FENCING" paragraph 3.4 "FENCE 
SYSTEM-BOLLARD, COLUMN, POST AND BEAM AND PANEL 
INSTALLATION," described some fence foundation requirements: 
The 
fence system shall be installed as shown to the lines 
and grades indicated .... If/as shown, the ground surface 
irregularities along the fence line shall be eliminated to the 
extent necessary to maintain a 2 inch clearance between 
the bottom of the fence and finish grade. Structural steel 
erection shall conform to Section 05 12 00. Except where 
solid rock is encountered, bollards, columns and posts shall 
be set in concrete in soil, or grouted into continuous 
concrete wall, or set in concrete barrier in tubular steel 
casing 
to the depth indicated and as shown on the 
drawings.. . . Bollards, columns and posts set in concrete in 
soil shall be set in trenches I holes not less than the 
dimensions required by sign and shown on the drawings .... 
(R4, tab 7 at 897, 901) 
36 

97. Section 01 00 50, "TASK ORDER REQUIREMENTS," paragraph 1.4.3. 
stated, "Drawings, details, notes and 
criteria provided in this Request For Proposal 
package shall be used by the Design/Build Contractor as part of the development of 
the final fence design and site design and construction documents" (supp. R4, tab 334 
at 7093). 
98. Section 01 00 50, "TASK ORDER REQUIREMENTS," paragraph 1.10 
"FENCE DESIGN AND CONSTRUCTION," in subparagraph 1.10.2. "FENCE 
DESIGN CRITERIA" stated in part: 
L Standard fence detail PV-1 and all applicable notes 
and specifications located in Appendix III of this 
RFP shall be carried forward to final design of the 
fence constructions. 
11. All material and general requirements outlined in 
the details and specifications shall be maintained. 
Any deviation shall require written acceptance for 
the Contracting Officer. 
ii. [sic] Vehicular impact shall be applied to the fence 
design as a static 10-kip load per AASHTO 17th 
Edition, Chapter 2. 7 .1. 
111. Vehicular impact shall be combined with all other 
applicable loads, such as but not limited to dead 
load, soil pressure, wind load, hydrostatic pressure 
and seismic forces for development of the critical 
load combination for final fence design. Loading 
and load combinations shall be developed as 
specified in the International Building Code (latest 
edition). 
1v. Minimum compressive concrete strength for 
foundations shall be 
3,000 PSI. 
The Design/Build Contractor shall provide construction 
plans, details, and specifications along with calculations 
and design analysis, per requirements outlined by this RFP, 
that clearly demonstrate that the fence design and site 
design address the criteria stated above. 
(Supp. R4, tab 334 at 7093, 7098-99) 
99. RFP appx. III set forth a standard fence detail for the type of fence (PV-1) 
(hereinafter the appx. III fence detail) specified for this project. With respect to site 
37 

adaptation, note 2 on the detail told offerors to refer to the RFP design criteria "FOR 
ADDITIONAL INFORMATION" and note 1 stated, "FOUNDATION DETAILS 
SHOWN REPRESENT MINIMAL DIMENSIONAL REQUIREMENTS AND MAY 
NEED TO BE INCREASED BASED ON FINAL DESIGN." (Supp. R4, tab 329 
at 7063; tr. 5/140) 
100. Similarly, note 3 of the appx. III fence detail provided: "THIS 
DRAWING PROVIDES GENERAL DESIGN AND CONSTRUCTION DETAILS. 
FINAL PLANS SHALL SHOW SPECIAL NOTES AND DETAILS WHERE 
NECESSARY FOR CONDITIONS OTHER THAN THOSE INDICATED HEREIN." 
(Supp. R4, tab 329 at 7063; tr. 5/140) 
101. The 
appx. III fence detail showed a foundation concrete width/thickness 
of one foot, four inches "min[imum]" and the below ground portion of the fence 
(to a depth of 3 feet (minimum 2 feet) installed in the concrete foundation between 
"W4 x W4" wire mesh on the 
north and south sides of the fence with the mesh 
extending down the full height of the approximately six feet concrete foundation. 
(Supp. R4, tab 329 at 7063) 
102. MARCON considered that the fence had been fully tested and was 
capable of meeting the extensive criteria set forth above in the RFP. In preparing its 
proposal, MARCON assumed that it could use the appx. III fence detail 
without 
extensive rebar/strengthening. In addition to the wire mesh and to account for actual 
soils and soil pressures encountered over the one-mile site, MARCON added four #5 
rebar (5/8-inch thick) horizontal to the length of the fence. (Tr. 1/43, 111, 113-14, 
116-20, 125-26, 232-33, 2/56, 3/68-75, 85-88, 91-92; supp. R4, tab 353 at 7336-37, 
7340) 
103. Structural calculations for the fence and the fence foundations were 
submitted on 4 August, 14 August and 28 August 2008 (supp. R4, tabs 420, 445, 460). 
On 28 August 2008, appellant submitted revised details and final structural 
calculations (supp. R4, tab 460 at 8062). As revised, the structural design called for 
the concrete trench to be 18 inches wide with more rebar than originally incorporated 
in its proposal (id.). 
104. The Corps determined that the fence foundation required that the concrete 
trench be 20 to 22 inches wide to insure proper placement of the mesh and added 
rebar. On 4 September 2008, the Corps agreed to increase the size of the trench to that 
extent. To match the size of its excavator bucket, the concrete trench was 24 inches 
wide as actually placed by MARCON. (Ex. G-70 at 135; tr. 11229-32, 4/54-55) 
105. MARCON's final design included more reinforcement and concrete than 
included in its proposal. There is no dispute that the additional rebar and concrete 
38 

were required to satisfy all of the above contractual criteria. (Tr. 1/232-33, 3/80, 
7/242) 
106. MARCON claimed that it is entitled to compensation for the additional 
reinforced concrete required to place the fence foundation (tr. 11237). 
DECISION 
This appeal requires consideration and resolution of three claims: the drainage 
claim; the CMP claim, and the fence foundation claim. 
I. The Drainage Claim 
The parties have extensively briefed numerous issues associated with the 
drainage claim, some relevant and some less so. We have considered but need not 
address them all. This portion of the appeal must be sustained on either of two 
grounds. 
First, appellant's technical proposal, including its conceptual drainage plan, was 
incorporated into the contract and effectively relaxed the RR restriction to the extent 
necessary to implement appellant's proposed drainage solution. Subsequent 
enforcement of the RR restriction by the government during performance prior to 
16 September 2008 changed the parties' agreement and entitled appellant to an 
equitable adjustment. 
Second, any variant of the government's drainage concept set forth in the RFP 
(incorporating, inter alia, CMPs and a west-east drainage channel) could not satisfy 
the 100-year flood design parameter without relaxation of the RR constraint. 
Accordingly, appellant's attempts to develop drainage solutions based on the 
government west-east channel while satisfying the 100-year flood requirement and 
confining the work to the RR entitle it to an equitable adjustment compensating it for 
its efforts to overcome the defective specifications. 
In essence, the specifications' RR constraint was modified and relaxed by 
MARCON' s accepted TP. If the original RFP RR constraint is considered not to have 
been thus relaxed, the 100-year flood design requirement nevertheless was impossible 
to meet. For purposes of interpreting the contract, the government maintains that the 
RR constraint was a strictly enforceable requirement. For purposes of maintaining that 
the specifications were possible of performance and not defective, the government 
contends that the RR constraint was never strictly enforced during performance. The 
government is legally incorrect regarding the proper interpretation of the contract and 
misstates the facts with respect to its enforcement of the RR constraint. 
39 

1. The Accepted TP Effectively Relaxed the RR Restriction as a Constraint on the 
Drainage Design 
The TP unambiguously included a design narrative, details, and a plan view that 
indicated MARCON would 
work north of and outside the RR. The first few sentences 
of the design narrative clearly informed the government of appellant's intended 
drainage plans. The TP was evaluated, implicitly determined to be technically 
acceptable, and became part of the contract. Whatever the reason for the acceptance of 
appellant's design concept, it materially changed or relaxed any inconsistent 
specification requirements based on the original design concept, as well as compliance 
with the RR. 
Appellant considers that government technical evaluation and the acceptance of 
MARCON' s proposal reasonably implies that the government accepted appellant's 
drainage plan. Appellant argues that there were already minor relaxations of the RR 
restriction reflected in the RFP drawings with respect to work associated with two 
small west end existing 
CMPs requiring encroachment north of the RR. In this regard, 
MARCON emphasizes that its proposed L WCs extended only 8 feet into the RR. In 
addition, appellant notes the government answer to the pre-proposal question 
(incorporated into the contract) permitting the lowering the BPR for drainage purposes 
reasonably implied that some work could occur outside the RR limits. Moreover, 
MARCON argues that surface drainage of the water approximating its normal flows 
along the perimeter of the site was the plan preferred by adjacent landowners north of 
the RR as well as the end-user agency the Border Patrol. This preference was 
conveyed by the Border Patrol agent conducting the site visit. In fact, a Border Patrol 
representative was one of the members of SSEB. 
Moreover, according to appellant, given the limited extent to which 
MARCON' s design indicated drainage work outside the RR (extending approx. 8 feet 
to its north) and the acceptance of that design, the parties could be viewed to have 
jointly interpreted the TP to be compliant with the contract, or at least a minor 
waivable deviation 
from strict compliance with the RR restriction. In other words, 
appellant considers that such a joint interpretation of compliance at the time of the 
technical evaluation prior to the advent of the dispute eliminates the need to resolve 
the issue through resort to the Order of Precedence clause. 
We do not base our decision on the reasonableness of appellant's interpretation 
or its alleged "acceptance" by the government. The evaluators failed to give 
appellant's drainage design and proposal due consideration and were negligent. Even 
the most rudimentary review of the RFP requirements would have disclosed the RR 
constraint and the 100-year flood design parameter. Moreover, even the most cursory 
perusal of the TP reveals that the TP's proposed drainage plan involved work outside 
the RR and the absence of the west-east channel central to the RFP's drainage concept. 
Despite its obviousness, the sole evaluator to testify basically admitted that there was 
40 

no meaningful discussion of the RR issue by the technical evaluators. At least in his 
view, the contractor had the responsibility to design the project, apparently rendering 
meaningless any duty on the evaluator's part to analyze the technical proposal's 
drainage design for technical acceptability as required by numerous solicitation 
provisions. He failed to consider that the RFP imposed constraints and parameters that 
appellant's design relaxed. Had the evaluators properly performed their functions, the 
contractor's intent would have been obvious and the matter would have been discussed 
and resolved and/or MARCON's proposal would have been determined to be 
technically unacceptable. Nor did the government perform a price realism analysis 
despite the fact that appellant's proposal was only approximately 50% of the 
government estimate for the work. In short, the government: failed to adequately 
evaluate appellant's proposal, failed to conduct discussions or amend the solicitation to 
reflect relaxation of the RR constraint and reopen the competition, and/or declined to 
cancel/terminate the contract once the conflict became clearly apparent no later than 
the pre-construction conference and before commencement of the work. We need not 
discuss in detail theoretical legal consequences flowing from government acceptance 
of appellant's nonconforming proposal. The parties have not addressed them in their 
briefs even though requested by the Board. Moreover, in this case involving a 
completed contract, possible remedies such as terminating the contract for 
convenience are impracticable. Instead, assuming that there was any ambiguity 
following the government's acceptance of the TP, we consider that the conflict 
between the specification's RR constraint and appellant's proposed drainage plan may 
be resolved by applying the governing Order of Precedence clause in the context of 
this post-completion claim and appeal. 
The government attempts to circumvent the consequences of incorporating 
appellant's TP drainage solution and its relaxation of the RR by resort to application of 
what it considers to be the appropriate contractual Order of Precedence clause. 
Order of Precedence clauses address potential conflicts and inconsistencies 
among the various components of the contract. Both parties recognize that appellant's 
technical proposal was incorporated into the contract. The parties dispute which order 
of precedence clause is applicable. They further dispute the appropriate hierarchical 
"tier" in which the proposal and/or its constituent design elements should be placed for 
purposes of applying the clauses in this case. 
There were two Order of Precedence clauses set forth in the RFP and contract. 
Under FAR 52.215-8 (Clause I) set forth in Specification § 00800 "SPECIAL 
CONTRACT REQUIREMENTS" (finding 8), there is no dispute that appellant's 
TP 
fell within the ambit of~ (d) thus taking precedence over possibly conflicting 
requirements in the ~ ( e) "specifications," including the RR restriction in those 
specifications. 
41 

However, the government contends that the second clause 
SCR.I DESIGN-BUILD CONTRACT ORDER OF PRECEDENCE-AUG 1997 
(finding 9) (Clause 11) controls. According to the government, the drainage plan in 
appellant's TP fell under~ b.(3) of that clause which was lower in precedence than the 
provisions of the solicitation in~ b.(2). Accordingly, the government argues that, 
since the RFP specifications at § 01 00 50, ~ 1.3 set forth the RR restriction, that 
contract specification was higher in order of precedence than MARCON' s TP. 
The government order-of-precedence-based arguments are without merit. First, 
regardless of how "order of precedence" tiers established in these clauses should be 
applied in resolving a hypothetical conflict between the original design concept and 
RR restriction set forth in the RFP, that conceptual drainage design and the RR 
restriction were modified by appellant's plain and unambiguous technical proposal 
which the government accepted. The TP drainage plan was not a subtle, latent, 
nuanced conflict that understandably remained undetected in the proposal evaluation 
process. The "conflict" here was a patent, obvious change to the RFP' s technical 
approach and overall drainage concept. Instead of the RFP's contemplated west/east 
concrete ditch concept that did not intrude beyond the RR and project site, the 
contractor proposed a south-north regrading approach that sheeted water outside the 
RR collecting and transporting the water through LWCs across lowered sections of the 
BPR onto public and private land adjoining the site. There was no conflict between 
the technical proposal and the specifications, as thus changed and relaxed. Viewed 
from the standpoint of contract formation, the offer of a differing drainage design was 
accepted by the government's award of the contract. The government thereafter could 
not insist on compliance with original specifications. 
Second, assuming they are relevant to resolving this dispute, the question of 
which of the two Order of Precedence clauses takes precedence over the other is 
simply and best determined in this case by straightforward contract interpretation 
principles. Here, the ambiguity is resolved against the government drafter under the 
contra proferentum doctrine. Applying that principle, Clause I prevails over Clause II 
and the TP controls over inconsistent specifications, including the unrelaxed RR 
restriction. 9 Accordingly and given the primacy of the TP, the contract permitted 
9 Even assuming that interpretation of the contract requires resort to the Order of 
Precedence clause (Clause 11) advocated by the government, in the unique 
circumstances and context of this case, appellant's drainage plan constituted a 
"betterment" because it replaced an impossible design (discussed further below) 
with one which was capable of achievement. There is perhaps no more 
significant "betterment" than one which replaces an impossible design with one 
that is possible of performance. Appellant's conceptual TP drainage plan also 
constituted a "betterment" in the sense that appellant's basic drainage solution 
was the plan preferred by adjacent landowners north of the RR as well as the 
42 

limited relaxation of the RR constraint as proposed in appellant's TP drainage plan. 
To the extent that the government insisted on full compliance with the RR constraint 
during performance, it constructively changed the contract. 
2. The Original RFP Specification Requirement was Defective 
We further conclude that it was impossible for any design to satisfy both the RR 
restriction and the 100-year flood requirement. The government's west-east drainage 
concept solution could not contain a 100-year flood and also comply with the RR 
constraint. The new and existing CMP in the government's west-east design were 
grossly inadequate and would have been capable of handling only approximately 50% 
of the 100-year flows. There is no persuasive evidence demonstrating that any variant 
of, or adjustments to, the original government design concept could have possibly 
worked. The only feasible and practical solution was some variant of appellant's TP 
plan to use LWCs that extended north of the RR. Moreover, appellant's plan was 
preferable from the perspective of the surrounding landowners and end-user Border 
Patrol. 
The government contends that appellant never attempted to fully execute the 
government's conceptual design and has, therefore, failed to prove that performance 
was impossible without relaxation of the RR constraint. We agree that the contractor 
bears the burden of proving that performance was impossible absent relaxation of the 
government-imposed RR design constraint. However, it is not required to wastefully 
and futilely attempt to perform the impossible and fail in order to sustain its burden of 
proof. Whether the elements of impossibility are sufficiently established involves 
weighing the adequacy, quality and persuasiveness of the proof in each case. In many 
instances it is difficult to prove impossibility unless it is established through failed 
performance. That is not the case on this record. Here the evidence is clear and 
essentially unrefuted. First, this was a design-build contract. In that context, it is not 
surprising that MARCON determined satisfying the RR constraint was impossible at 
the design stage prior to executing a drainage plan. None of the cases cited by the 
government involved analogous design-build contract issues. Moreover, experts from 
both parties agreed that no drainage design could comply with the RR requirement and 
also handle 100-year flood flows. There is no evidence theorizing how appellant could 
have performed the work while complying with all RFP design constraints and 
parameters. 
Moreover, significant costs were incurred as a consequence of trying to comply 
with the RR constraint. Appellant unsuccessfully developed various designs in an 
attempt to satisfy that constraint. Flow calculations associated with these Young and 
Urban 
drainage design iterations and submissions demonstrated the futility of 
end-user agency the Border Patrol. L WCs were also the "preferred alternative" 
method of handling the water in the environmental specifications. 
43 

attempting to perform. MARCON incurred additional design/redesign costs charged 
by Urban as well as Young in attempting to develop a design that would adequately 
drain the site while complying with the RR. It was only after repeated failures that the 
government relented and authorized appellant to seek requisite approvals to perform 
the work on the adjacent, privately-owned property north of the RR. Impossibility was 
obvious at the drainage design stage. To that extent, appellant did attempt to perform 
and failed. 
In addition, the parties extensively communicated concerning the issue. In fact 
the government argues inconsistently that it actually gave appellant permission to 
proceed with a variant of its proposed drainage plan by virtue of its response to RFI 3. 
This misrepresents the scope of RFI 3 as well as the government's contemporaneous 
actions as discussed below. 
Government permission was not granted until the 16 September 2008 meeting. 
The record is replete with adverse Baker comments on appellant's drainage design 
submissions prior to that date. However, the salient point here is that the matter was 
addressed and resolved to the benefit of all concerned before appellant improvidently 
incurred substantially greater costs chargeable to the government. Appellant mitigated 
its damages. 
The government also repeatedly contends that appellant was not required to 
follow the Appendix II drawings contained in the RFP and MARCON's Technical 
Proposal did not follow these drawings. This contention is patently inconsistent with 
its conduct during performance. On the one hand, the post-performance government 
position is that appellant was not required to use the drainage concepts shown in the 
drawings because the drainage design was appellant's responsibility as a design-build 
contractor. On the 
other hand, during performance, the government inconsistently 
insisted that MARCON could not implement its own design because it violated certain 
select parameters and the RR constraint reflected in the solicitation specifications. 
The government also incorrectly maintains that the Urban 12 September 2008 
design could have complied with the 100-year flood requirement. In fact on this 
record, any variant of Baker's Appendix II west-east ditch design concept would not 
have satisfied that performance requirement without encroaching substantially on both 
government and private property north of the RR. The government implies that, once 
the RR constraint was relaxed on 16 September 2008, appellant should have incurred 
the costs of constructing the concrete channel in accordance with Urban's 
12 September 2008 design and merely extended the LWCs in that design so as to 
encroach more extensively into areas north of the RR. Of course, any such implied 
argument would violate the essential thrust of the government's briefs that appellant as 
a design-build contractor was not required to comply with the Appendix II conceptual 
design. However, here as a practical matter and for the reasons emphasized above, 
appellant's accepted proposal eliminated the concrete west-east channel and relaxed 
44 

the RR requirement to the extent needed to construct LWC's that could adequately 
satisfy the 100-year flow requirements. The fact that appellant preferred and 
opted for 
a variant of the less expensive TP drainage solution rather than install the RFP's one 
mile long concrete west-to-east channel (with modified L WCs to handle 100-year 
flows) is hardly surprising. Once the RR was relaxed, the raison d'etre for 
the west-east channel disappeared. There was no reason to channel the water contrary 
to its natural flow pattern. There was no longer any reason to find other solutions, 
much less one that retained and supplemented the costly Appendix II west-to-east 
concrete channel. Appellant's basic TP drainage design satisfied the 100 year flood 
requirement as tailored and adapted to the site. Moreover, the government made no 
attempt contemporaneously to insist on the west-to-east concrete channel once the RR 
constraint was relaxed or to construe Appendix II to impose such a continuing design 
requirement. MARCON' s chosen solution further mitigated its damages. 
The government also inconsistently contends that appellant was not required 
strictly to comply with the RR. This contention is refuted by the evidence. Appellant's 
attempts to implement its drainage design relying on the use of L WCs extending 
beyond the RR were repeatedly rejected by the government. 
The government's primary basis for its position that it never strictly enforced 
the RR constraint is RFI 3. First, the government response to RFI 3 did not represent a 
change in position. Its contemporaneous and subsequent design reviews of the 
drainage plan continued to reject appellant's drainage design submittals for violating 
the RR constraint. In addition, RFI 3 is not construable as permission for appellant to 
work outside the RR, particularly on private lands as required for MARCON' s design 
to be effective. To the extent that RFI 3 may be interpreted as a partial grant of 
permission to encroach on public lands north of the RR, approval was conditioned on 
obtaining the requisite permits. That condition was imposed even though the 
government had the permits in hand unbeknownst to appellant. 
The government argues and the parties have extensively briefed whether the 
specifications fall into the category of "design" or "performance" requirements. The 
government considers that appellant failed to satisfy "performance" requirements, 
emphasizing the design-build character of the contract and arguing that it was 
incumbent on appellant to adequately provide for site drainage. 
It is unnecessary to elaborate extensively on the nuanced distinctions separating 
"performance" versus "design" specifications. The design constraints and parameters 
in dispute here were imposed by the government not separately developed by appellant 
as designer. Until the RR constraint was relaxed by the government, the contractor's 
design was required to satisfy it. No discretion was involved and it is that restriction 
that could not be met. Although the requirement to design for a 100-year flood alone 
might properly be labeled a "performance" specification, the RR constraint 
represented an express limitation on appellant's design options and proved impossible 
45 

to satisfy. Moreover, the lack of "design" discretion was evidenced and emphasized 
contemporaneously by the government's repeated insistence on compliance with the 
RR constraint. 
The drainage claim portion of the appeal is sustained. 
II. Defective Fence Foundation Design and CMP Claims 
Both of these claims are without merit. 
With regard to the fence foundation, the contract, read as a whole and giving 
meaning to all its provisions, clearly provided for on-site adjustment and tailoring the 
fence foundation to the conditions encountered. The myopic focus of appellant's 
interpretation on the foundation detail failed to sufficiently consider other pertinent 
provisions detailed in our findings that clearly emphasized the potential for 
adjustments necessitated by the site. Even the detail set forth cautionary notes 
reflecting that it depicted only "minimal dimensional requirements" that "may need to 
be increased." Appellant's interpretation essentially ignored or unreasonably 
discounted the importance of these warnings, as well as the requirements expressly set 
forth in the specification. There is no dispute that the additional rebar and concrete 
were required to satisfy all of the RFP drawing and specification criteria. 
Equally unconvincing are appellant's allegations that the concrete foundation it 
encountered during its removal of the east end culverts constituted a Type II differing 
site condition. Removal of these large CMPs was not required by the original 
specifications but was a feature of appellant's planned TP drainage design. The 
foundation underneath the CMPs was not visible during the site investigation. 10 Most 
fundamentally, establishing entitlement to recovery for a Type II differing site 
condition required that the contractor prove, inter a/ia, that the conditions encountered 
were of an "unusual" nature. See, e.g., Kos Kam Inc., ASBCA No. 34037, 88-3 BCA 
~ 21,100 at 106,524. Although appellant has offered the testimony of its owner and 
initial project superintendent that the encountering of the concrete foundation was 
unusual, we have found that the more persuasive evidence in the record is that offered 
by the government's expert, Mr. Blair, as well as that of Mr. Aldrich. Based on that 
finding, we conclude that the presence of a concrete foundation/partial easement 
supporting these large (ten feet in diameter) corrugated metal pipes was not unusual 
and should have been anticipated by appellant. Given the extremely high flow 
capacity (800 cfs.) of each pipe, concrete should reasonably have been anticipated to 
10 As a result of our conclusion that the concrete foundation was not unusual, we need 
not discuss other possible issues associated with the fact that the removal was 
not originally contemplated by the contract but instead was an element of 
appellant's TP drainage plan. 
46 

prevent erosion and ensure the stability of the pipes. Accordingly, the basic 
prerequisite for a Type II differing site condition has not been established. 
CONCLUSION 
We conclude that MARCON is entitled to an equitable adjustment for the 
drainage claim. We remand to the parties for negotiation of that adjustment in 
accordance with our findings in this decision. To that extent, the appeal is sustained. 
The appeal is otherwise denied. Neither the defective fence foundation design 
claim nor the CMP claim have merit. 
Dated: 1 May 2015 
I concur 
Administrative Judge 
Armed Services Board 
of Contract Appeals 
I concur 
RICHARD SHACKLEFORD 
Administrative Judge 
Vice Chairman 
Armed Services Board 
of Contract Appeals 
I certify that the foregoing is a true copy of the Opinion and Decision of the 
Armed Services Board of Contract Appeals in ASBCA No. 57471, Appeal of 
MARCON Engineering, Inc., rendered in conformance with the Board's Charter. 
Dated: 
47 
JEFFREY D. GARDIN 
Recorder, Armed Services 
Board of Contract Appeals