CROSS-MOTIONS FOR PARTIAL SUMMARY RELIEF DENIED: June 23, 2015
CBCA 3966
DOT CONSTRUCTION, INC.,
Appellant,
v.
DEPARTMENT OF AGRICULTURE,
Respondent.
Jackson Wyatt Moore, Jr., Tobias R. Coleman, and Peter J. Marino of Smith,
Anderson, Blount, Dorsett, Mitchell & Jernigan, LLP, Raleigh, NC, counsel for Appellant.
Mark R. Simpson, Office of the General Counsel, Department of Agriculture, Atlanta,
GA, counsel for Respondent.
Before Board Judges VERGILIO, DRUMMOND, and SHERIDAN.
DRUMMOND, Board Judge.
This appeal arises out of a contract between DOT Construction, Inc. (DOT) and the
Department of Agriculture’s Forest Service (Forest Service) for, inter alia, outfall
maintenance at a site in South Carolina.  DOT seeks an equitable adjustment totaling
$111,062 based on a differing site condition claim.  Specifically, DOT argues that its
inability to drive certain steel pilings to the required design depth using the vibratory hammer
specified in the contract constituted a differing site condition.  This claim is referred to as
DOT’s early refusal differing site condition claim.  


CBCA 3966 2
The parties have filed cross-motions for partial summary relief relating to the early
refusal differing site condition claim.  In support of its motion, DOT argues  that a differing
site condition should be assumed because DOT was unable to drive the piles to design depth
with the hammer initially used.  Conversely, the Forest Service argues that it is entitled to
partial summary relief because DOT failed to provide proper notice of the alleged differing
site condition and because DOT failed to establish that a differing site condition prevented
it from driving the piles to the required depth. 
In addition, DOT has requested that the Board strike the statement of uncontested
facts included with the Forest Service’s motion for summary relief in CBCA 3966.  DOT
alleges that the facts advanced by the Forest Service are “new theories that are inconsistent
with the prior testimony of respondent’s . . . witnesses.”  The Forest Service opposes DOT’s
request to strike. 
It is well settled that in order to obtain summary relief, a party must show that there
are no material factual disputes of the record and it is entitled to judgment as a matter of law. 
Mingus Constructors, Inc. v. United States, 812 F.2d 1387, 1390-91 (Fed. Cir. 1987); Au’
Authum Ki, Inc. v. Department of Energy, CBCA 2505, 14-1 BCA ¶ 35,727, at 174,890.  
Our review of the record reveals a number of disputed material facts, including, but
not limited to the following:
1.  Whether the site conditions differed materially from those indicated by the
contract documents;
2.  Whether the Forest Service approved the hammer used by DOT and if such
is relevant;
3.  The cause of the difficulties in not reaching the depth required by the
contract; and
4.  The scope of the notice to the Forest Service that pile drilling was not
reaching the required depth. 
These disputed facts preclude resolution at this stage.
Decision
Neither party has proven that undisputed material facts entitle it to summary relief.
Accordingly, the cross-motions for summary relief are DENIED.  

CBCA 3966 3
DOT’s motion to strike is DENIED as moot.
________________________
JEROME M. DRUMMOND
Board Judge
We concur:
____________________                                  _______________________
JOSEPH A. VERGILIO  PATRICIA J. SHERIDAN
Board Judge Board Judge