UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA 

_________________________________________ 

)

UNITED STATES OF AMERICA, for the use )

and benefit of AMERICAN CIVIL )

CONSTRUCTION, LLC, )

)

Plaintiff, )

)

v. ) Case No. 14-cv-00745 (APM)

)

HIRANI ENGINEERING & LAND )

SURVEYING, P.C., et al., )

)

Defendants. )

_________________________________________ )

FINDINGS OF FACT AND CONCLUSIONS OF LAW

This dispute between Plaintiff American Civil Construction, LLC (“Plaintiff” or “ACC”)

and Defendants Hirani Engineering & Land Surveying, PC (“Hirani”) and Colonial Surety 

Company (“Colonial”) arises out of ACC’s work as a subcontractor to Hirani on a federal 

government construction project located on the National Mall in the District of Columbia.

ACC brought this action against Colonial under the Miller Act, 40 U.S.C. § 3133, and also 

brought a state law claim against Hirani for breach of contract. As to both claims, Plaintiff seeks

$2,172,285.23 in money damages, plus prejudgment interest, attorney’s fees, and costs. Colonial, 

in turn, brings a variety of counterclaims against ACC and asserts that it incurred losses in the 

amount of $723,049.14 to finish the project that ACC failed to complete. 

After denying Defendants’ motion for summary judgment, the court conducted a five-day 

bench trial in March 2018. After the bench trial concluded, the parties submitted proposed findings 
2

of fact and conclusions of law, as well as briefs in rebuttal. The court held a final oral argument 

on June 14, 2018.

As required by Federal Rule of Civil Procedure 52(a)(1), the court now makes its Findings 

of Fact and Conclusions of Law. The court has reviewed the parties’ submissions, carefully 

considered the evidence presented at trial, weighed the credibility of the witnesses, and applied the 

applicable law. For the reasons set forth below, the court has determined that Plaintiff has met its 

burden of proof with respect to its Miller Act claim against Colonial and its breach of contract 

claim against Hirani. On the other hand, the court finds that Defendant Colonial has not sustained 

its burden of proof on its counterclaims. 

Accordingly, the court will enter final judgment in favor of ACC. It will formally do so, 

however, only after ACC submits a final damages calculation that is consistent with these Findings 

of Fact and Conclusions of Law. 

BACKGROUND

To provide clarity and context for these findings of fact and conclusions of law, the court 

provides a brief overview of the undisputed facts underlying this case and then summarizes the 

case’s procedural history.

A. Factual Background

In June 2010, the United States Army Corps of Engineers (“USACE”) issued a solicitation 

for bids to construct a levee wall across 17th Street, N.W. in the District of Columbia, south of 

Constitution Avenue, N.W. (the “Project”). Flanked on the west side by the National World War 

II Memorial and on the east side by the Washington Monument, the 380-foot-long levee wall was 

designed to prevent the Potomac River from flooding across the National Mall into downtown 

Washington, D.C. As designed, the 17th Street levee wall consists of two permanent stone-clad
3

levee stem wall sections, one on the east side and the other on the west side of 17th Street, which

sit on a curved grade beam foundation supported by twenty-four reinforced concrete caissons 

running underground across the street. The grade beam foundation running across 17th Street 

contains eight “post pockets.” In the event of a 100-year flood, these pockets are filled with an 

eight-foot-tall temporary metal post and aluminum panel system that connect to the east and west 

levee stem walls to block surging floodwaters. The images below illustrate the Project. 

Images: completed stone-clad levee stem walls (Source Pl.’s Ex. 5)

Drawing of 17th Street levee (Source: Washington Post)

Following a bid process, on September 16, 2010, the USACE awarded Hirani the contract

(“the Prime Contract”) to construct the 17th Street levee wall for the amount of $3,833,097.00. 

The USACE subsequently awarded “Option 1” to Hirani on December 16, 2010, requiring Hirani 
4

to install stone veneer cladding and coping on the permanent levee walls for $641,369.00. As 

required by Hirani’s contract with the USACE, Colonial issued performance and payment bonds 

on behalf of Hirani.

On April 4, 2011, ACC and Hirani entered into a fixed-price subcontract (“the 

Subcontract”) for $2,845,600.00, under which ACC agreed to perform most, but not all, of Hirani’s 

obligations under the Prime Contract. ACC began performing under the Subcontract a week later,

and Hirani subsequently subcontracted Option 1 to ACC in the amount of $613,650.00.

The ensuing years on the Project were beset by a series of delays, modifications to the 

scope of the Project, and work-related disputes. By letter dated April 26, 2013, two-and-a-half 

years after it awarded the Prime Contract to Hirani, the USACE gave notice of its intent to 

terminate Hirani. In the days following Hirani’s termination, ACC left the Project site. The 

USACE subsequently made a demand against the Performance Bond issued by Colonial, and 

Colonial stepped in to complete the Project. With the assistance of Loewke Brill, a consulting 

firm, Colonial contracted with Akima Construction Services, LLC, Lorton Stone, LLC, and 

Structural Stone, LLC, to complete the Project, including Option 1, and did so around November 

2014.

B. Procedural Background

ACC filed suit in this court against Hirani and Colonial on April 29, 2014. See Compl., 

ECF No. 1. Colonial responded by filing four counterclaims against ACC: (1) two for breach of 

contract, one as assignee of Hirani and one as surety; (2) one for breach of the covenant of good 

faith and fair dealing; and (3) one for interference with contractual relations. See Def. Colonial’s 

Answer & Countercls., ECF No. 8. With leave of court, Plaintiff filed a Second Amended 

Complaint on February 16, 2016, asserting two claims: (1) breach of contract against Hirani, and 
5

(2) a payment demand under the Miller Act against Colonial, premised on the payment bond 

Colonial issued in connection with the Prime Contract. Plaintiff’s Second Amended Complaint 

sought quantum meruit damages in the amount of $2,070,185.23. See Second Amended Compl., 

ECF No. 26. 

Following discovery, Defendants jointly filed a Motion for Summary Judgment and a 

Motion to Strike Plaintiff’s Jury Demand. See Defs.’ Mot. for Summ. J., ECF No. 44; Defs.’ Mot. 

to Strike Jury Demand, ECF No. 45. The court denied Defendants’ Motion for Summary Judgment 

and granted Defendants’ Motion to Strike the Jury Demand on June 27, 2017. See Mem. Op., 

ECF No. 54; Order, ECF No. 55. Following a delay in the proceedings, the parties appeared for a 

Pretrial Conference on February 23, 2018. See Pretrial Conf. Hrg. Tr. (February 23, 2018), 

ECF No. 75. The court thereafter conducted a bench trial over the course of five days from March 

5, 2018, to March 9, 2018. See Trial Tr. Day 1 A.M. Session (March 5, 2018), ECF No. 76 

[hereinafter Day 1 A.M. Tr.]; Trial Tr. Day 1 P.M. Session [hereinafter Day 1 P.M. Tr.]; Trial Tr. 

Day 2 A.M. Session (March 6, 2018), ECF No. 77 [hereinafter Day 2 A.M. Tr.]; Trial Tr. Day 2 

P.M. Session [hereinafter Day 2 P.M. Tr.]; Trial Tr. Day 3 A.M. Session (March 7, 2018), ECF 

No. 78 [hereinafter Day 3 A.M. Tr.]; Trial Tr. Day 3 P.M. Session [hereinafter Day 3 P.M. Tr.]; 

Trial Tr. Day 4 A.M. Session (March 8, 2018), ECF No. 79 [hereinafter Day 4 A.M. Tr.]; Trial Tr. 

Day 4 P.M. Session [hereinafter Day 4 P.M. Tr.]; Trial Tr. Day 5 A.M. Session (March 9, 2018), 

ECF No. 80 [hereinafter Day 5 A.M. Tr.].

During the bench trial, ACC presented three witnesses: (1) Irene Stephen, owner of ACC, 

who also served as Hirani’s on-site Contractor Quality Control Assistant on the Project; 

(2) Jitendra Hirani, president of Hirani; and (3) Rick Janeiro, president of Roubin & Janeiro, Inc., 

a local stone contractor. Ms. Stephen, ACC’s primary witness, testified both as a fact witness and 
6

as an expert in cost accounting in the heavy and highway construction industry. See Day 1 A.M. 

Tr. at 37:14–95:1; Day 1 P.M. Tr. at 5:10–21:5; Day 2 A.M. Tr. at 6:5–125:17; Day 2 P.M. Tr. at 

3:9–112:12; Day 3 A.M. Tr. at 77:1–138:11; Day 3 P.M. Tr. at 3:4–86:6. Mr. Hirani, called as an 

adverse witness, testified as a fact witness regarding Hirani’s Prime Contract with the USACE, 

disputes and delays on the Project resulting from claimed failures by ACC to submit scheduling 

data, and Hirani’s termination from the Project. See Day 1 P.M. Tr. at 21:12–107:24. Mr. Janeiro 

testified as a fact witness regarding his company’s role as ACC’s stone supplier and subcontractor 

to complete Option 1 of the Project. See Day 3 A.M. Tr. at 6:7–75:25. 

Defendants presented two witnesses in their case: (1) Michael Vogt, an executive vice 

president of Loewke Brill Consulting Group, Inc., which Colonial hired in July 2013 to oversee 

completion of the Project after Hirani’s termination; and (2) Robert Franklin, the USACE’s project 

engineer for the Project. Mr. Vogt testified as a fact witness regarding the status of the Project 

upon Hirani’s termination, the work remaining under the Prime Contract and Subcontract, and the 

costs incurred by Colonial to complete the Project. See Day 4 A.M. Tr. at 11:6–118:5; Day 4 P.M.

Tr. at 3:4–85:11; Day 5 A.M. Tr. at 6:1–22:21, 98:9–130:20. Mr. Franklin testified as a fact 

witness regarding Hirani’s and ACC’s performances under the Prime Contract and Subcontract, 

the USACE’s termination of Hirani, and Colonial’s eventual completion of the Project. See Day 

5 A.M. Tr. at 23:15–97:25. In its rebuttal case, ACC recalled Irene Stephen. See Day 5 A.M. Tr. 

at 139:11–160:13. Both parties introduced a substantial volume of exhibits.

After Defendants rested their case, defense counsel made oral motions for judgment as a 

matter of law as to ACC’s Miller Act claim pursuant to Federal Rules of Civil Procedure 50(a) and 

52(c), asserting that no reasonable factfinder could conclude that ACC performed compensable 

work within one year of commencing its action as required by the Miller Act, 40 U.S.C. 
7

§ 3133(b)(4). See Day 5 A.M. Tr. at 161:2–161:20. The court deferred ruling on these motions. 

Id. at 161:21–162:3.1

Following the close of trial, each party submitted its proposed findings of fact and 

conclusions of law to the court. See Pl.’s Proposed Findings of Fact & Conclusions of Law, ECF 

No. 82 [hereinafter Pl.’s FOF & COL]; Defs.’ Proposed Findings of Fact & Conclusions of Law, 

ECF No. 83 [hereinafter Defs.’ FOF & COL]. The parties also submitted opposition briefs. See 

Defs.’ Rebuttal re: Pl.’s FOF & COL, ECF No. 86 [hereinafter Defs.’ Rebuttal]; Pl.’s Response 

re: Defs.’ FOF & COL, ECF No. 87 [hereinafter Pl.’s Rebuttal]. The court held oral argument on 

these submissions on June 14, 2018. See Oral Arg. Tr. (June 14, 2018), ECF No. 90 [hereinafter 

Final Arg. Tr.].

LEGAL STANDARD

“In an action tried on the facts without a jury . . . the court must find the facts specially and 

state its conclusions of law separately.” Fed. R. Civ. P. 52(a)(1). “The findings and 

conclusions . . . may appear in an opinion or a memorandum of decision filed by the court.” Id.

“The [c]ourt’s findings must be sufficient to indicate the factual basis for the ultimate conclusion.” 

Paleteria La Michoacana, Inc. v. Productos Lacteos Tocumbo S.A., 188 F. Supp. 3d 22, 34 (D.D.C. 

2016) (internal quotation marks omitted). However, “[i]n setting forth the findings of fact, the 

court need not address every factual contention and argumentative detail raised by the parties, 

[n]or discuss all evidence presented at trial.” Moore v. Hartman, 102 F. Supp. 3d 35, 65 (D.D.C.

2015) (internal quotation marks and citations omitted). Instead, “‘the judge need only make brief, 

definite, pertinent findings and conclusions upon the contested matters’” in a manner that is 

“sufficient to allow the appellate court to conduct a meaningful review.” Wise v. United States, 

 1 By virtue of these Findings of Fact and Conclusions of Law, the court denies Defendants’ motions made under Rules 

50(a) and 52(c).
8

145 F. Supp. 3d 53, 57 (D.D.C. 2015) (quoting Fed. R. Civ. P. 52(a) advisory committee note to 

1946 amendment).

A litigant bears the burden of proving each element of its claim by a preponderance of the 

evidence, a standard that “requires a factfinder to decide that the existence of a fact is more 

probable than not.” See Window Specialists, Inc. v. Forney Enters, Inc., 106 F. Supp. 3d 64, 88 

(D.D.C. 2015) (citing Concrete Pipes & Prods. of Cal., Inc. v. Constr. Laborers Pension Trust for 

S. Cal., 508 U.S. 602, 622 (1993)). As the factfinder, the court “must evaluate the raw evidence, 

finding it to be sufficiently reliable and sufficiently probative to demonstrate the truth of the 

asserted proposition with the requisite degree of certainty.” Bensayah v. Obama, 610 F.3d 718, 

725 (D.C. Cir. 2010) (quotation marks and citation omitted). 

FINDINGS OF FACT2

With these principles in mind, the court makes the following findings of fact:

THE PARTIES

1. Plaintiff American Civil Construction (“ACC”) is a Maryland limited liability company. 

At all times relevant, ACC was engaged in the business of heavy and highway civil construction 

contracting.

2. Defendant Hirani Engineering & Land Surveying (“Hirani”) is a New York corporation.

3. Defendant Colonial Surety Company (“Colonial”) is a Pennsylvania surety corporation.

 2 The court cites portions of the record to support its findings of fact, but has not identified every portion of the record 

upon which it relies to make those findings. The omission of a citation to a particular portion of the record does not 

necessarily mean that the court did not rely on that portion to make its findings of fact. Rather, the court has considered 

the record in its entirety, including the court’s own determination of witnesses’ credibility, and its citations to portions 

of the record are simply intended to provide a helpful reference for the basis of its findings. See Paleteria La 

Michoacana, 188 F. Supp. 3d at 35.
9

THE PROJECT AND PRIME CONTRACT

4. On or about June 25, 2010, the United States Army Corps of Engineers (“USACE”) issued

a solicitation for a fixed-price construction proposal for a project to build a levee flood wall across 

17th Street, N.W. in the District of Columbia, between Constitution and Independence Avenues, 

N.W. Pl.’s Ex. 10, at 37; Pl.’s Ex. 11.

5. The construction project is known as the “Washington D.C. and Vicinity, Local Flood

Protection Project, 17th Street Closure Structure” (the “Project”). Pl.’s Ex. 11.

6. The Project involved the installation of twenty-four reinforced concrete caissons embedded 

approximately five to ten feet into solid bedrock. These twenty-four caissons support a 380-foot 

long, curved grade beam foundation. Sitting on top of this grade beam foundation are two 

permanent 120-foot levee stem wall sections, one on the east side and one on the west side of 17th 

Street.

7. The Project also required, among other things, construction of a temporary eight-foot high 

protective stockade wood fence around the construction work areas; regrading of disturbed areas;

temporary maintenance of traffic barriers and signs during partial closures of 17th Street to vehicle 

traffic; and landscaping (tree and sod planting).

8. On August 27, 2010, Hirani submitted its bid proposal, in the following amounts: 

(1) $3,833,097.00 for the base contract work of the Project, excluding any options that the USACE 

may exercise during the course of the Project; (2) $641,369.00 for installing stone veneer on the 

levee walls (“Option 1”); and (3) $99,125.00 for planting new trees and sod on the east side of 

17th Street (“Option 2”). See Pl.’s Ex. 17, at 1, 3–6.
10

9. On September 16, 2010, the USACE awarded Hirani Contract No. W912DR-10-C-0093 

(the “Prime Contract”), accepting Hirani’s base contract work bid of $3,833,097.00 for the 

construction of the Project. See id. at 1.

10. The Prime Contract contemplated completion of the Project by October 12, 2011, one year 

from issuance of the Notice to Proceed dated October 13, 2010. Pl.’s Ex. 56 at 3.

11. The Prime Contract required Hirani to obtain a surety bond. Pl.’s Ex. 17 at 3.

12. On October 1, 2010, Colonial, as surety, issued a performance bond and payment bond in

the sum of $3,833,097.00, each bearing the bond number CSC-218890, on behalf of Hirani, as 

principal, and the United States of America, as obligee. See Pl.’s Exs. 24, 25.

THE SUBCONTRACT WITH ACC

13. On April 4, 2011, six months after the USACE awarded the Prime Contract to Hirani, ACC 

and Hirani entered into a written subcontract (the “Subcontract”), under which ACC would 

perform specified work on the Project, as defined by the Subcontract. See Pl.’s Ex. 54 [hereinafter 

Subcontract], at 6–16.

14. Also, on April 4, 2011, Hirani separately retained Irene Stephen, a co-owner and an officer 

of ACC, to serve as Hirani’s “Alternate Contractor Quality Control System Manager” and “Project 

Quality Control System Administrator” on the Project. See Pl.’s Ex. 77 at 16–18. Ms. Stephen’s

responsibilities included, among other things, (a) to “[a]ssist with the conducting on a continuing 

basis, sufficient daily follow-up reviews of work to ensure that all workmanship and materials” 

conform to Project specifications; (b) to “[a]ssist with coordination and management of all quality 

control and materials testing functions”; (c) to “[a]ssist with the preparation, management, and 

submission of all Daily Quality Control Reports to the Owner’s Representative each workday at 
11

the project”; and (d) to “[a]ssist with the management, review, and tracking of” construction 

efforts, construction deficiencies, and any stoppages or cessations of work. Id. at 17–18. 

15. ACC first began performance under the Subcontract beginning on April 11, 2011. Pl.’s Ex. 

31 at 1; see Day 2 A.M. Tr. at 34:16–34:17.

16. The Subcontract was a fixed-price agreement in the amount of $2,845,600.00 for “all labor, 

services, materials, equipment or other items acquired, performed, furnished or used . . . with 

respect to the Work,” along with applicable federal, state, and local taxes. See Subcontract at Art. 

III, § 3.1.

17. Pursuant to the Subcontract, ACC was required to provide the entire scope of work to

construct and manage the Project, except for Project management, quality control, and 

miscellaneous metal structures and panels and related work assigned to Hirani under the Prime 

Contract. See id. at Art. I, §§ 1.1, 1.4.

18. Schedules A and B of the Subcontract define in greater detail the work ACC was required 

to perform. See id. at Art. I, §§ 1.2, 1.3; id. at Sch. A–B.

19. As provided in Schedule B, among other tasks, ACC was required to “provide project

supervision (Superintendent, Site Safety Officer, Traffic Control Officer) except for a project 

manager to act on behalf of [Hirani]”; “work with the Hirani project manager in submitting 

monthly requisitions, progress updates”; “provide all field labor to maintain the site and do general 

cleanup as required”; “[f]urnish [and] install all fencing (site, silt, tree protection, temporary), and 

relocate as per the drawings and specifications with appropriate signage”; “provide all grading 

including all excavation & backfill as per the plans and specifications”; and “[f]urnish and install 

all stone masonry work for base scope of work: curbs, grade beam, stone coping and cladding 
12

adjacent to end post channels & expansion joints as per the plans and specifications.” See id. at 

Sch. B, Pts. 2, 5, 8, 11, 14, 19.

20. In the Subcontract, Hirani reserved the right to change, add, or eliminate portions of the 

Work “at any time whatsoever, whether the Work or any part thereof shall or shall not have been 

completed,” by written order submitted to ACC, and ACC agreed not to seek “extra or additional 

compensation on account of any such work, unless same shall have been done pursuant to a written 

order, signed by” a designated Hirani representative. See id. at Art. IV, § 4.1.

21. ACC additionally agreed that, in the event a “dispute, controversy [,] or question” arose in 

the interpretation of the Subcontract, it would not stop or delay performance of the Work or 

delivery of labor or material, but would continue to work “pending the determination of such 

dispute or controversy.” See id. at Art. XIV, § 14.1.

22. The Subcontract specified the grounds for contract termination. See id. at Art. XV, § 15.1.

23. Under the termination for default provision, the Subcontract provided that if ACC “fail[ed] 

to timely provide labor, services, and/or materials for the Project in accordance with the terms of 

[the] Subcontract, then Hirani [retained] the right at any time upon 7 days written cure notice to 

[ACC] to terminate [the] Subcontract and require [ACC] to cease work.” See id.

24. Under the termination for convenience provision, the Subcontract provided that if the 

USACE “ch[ose] to terminate Hirani for the convenience of the [USACE], then [ACC] shall be

similarly terminated, and the obligations and rights of the parties shall be in accordance with the 

provisions of the prime contract for such termination for convenience.” See id.

THE PROJECT SCHEDULE

25. The Prime Contract required Hirani to “[e]nsure that the work in progress, and the finished 

product, complies with all quality requirements of the plans and specifications.” Pl.’s Ex. 17 at 2.
13

26. Section 01 32 01 of the USACE’s Construction Specifications relates to scheduling for the 

Project and details requirements for the creation, production, and updating of the Project Schedule. 

See Pl.’s Ex. 12 [hereinafter Project Schedule Specifications], at 26–39.

27. The Project Schedule was required to be a forward-planning and project monitoring tool 

for the entire Project, including the design and construction sequences. The Schedule was required 

to show the sequence in which the work on the Project would be performed and dates on which all 

scheduled activities would be started and completed. Id. at § 3.1.

28. The Project Schedule Specifications required that an authorized representative be 

designated by Hirani “to be responsible for the preparation of the schedule and all required 

updating (activity status) and preparation of reports.” Id. at § 1.2; see Day 1 P.M. Tr. at 64:11–

65:7.

29. Hirani was responsible for the scheduling of construction for the Project, and Hirani 

management personnel were required to actively participate in the development of the Schedule. 

Project Schedule Specifications at § 3.1.

30. ACC was required to contribute in developing and maintaining an accurate Project 

Schedule. Id.

31. Hirani was required to provide to the USACE a Schedule Status Report at least on a 

monthly basis. Id. at § 3.1.2.

32. If the USACE Contracting Officer determined that Hirani was falling behind the approved 

schedule, the Contracting Officer could require increased work and overtime operations until the 

approved rate of progress was restored. Hirani’s failure to comply with the requirements of the 

USACE Contracting Officer would constitute grounds for a determination that Hirani was not 
14

prosecuting the work with sufficient diligence to ensure completion of the Project within the time 

specified in the Prime Contract. Id. at §§ 3.1.2, 3.1.3.

33. The Subcontract between Hirani and ACC incorporated the USACE’s Construction 

Specifications and required ACC to perform the work under the Subcontract “in strict compliance 

with the drawings, specifications, addenda, and bulletins.” See Subcontract at Art. I, § 1.2; Day 1 

A.M. Tr. at 68:13–68:17.

34. According to the Subcontract, the scheduling of all construction operations at the Project 

was to be “mutually agreed” upon between ACC and Hirani and, “if requested,” ACC was required 

to “furnish all scheduling information in such form and detail as required by [Hirani], to the 

satisfaction [of] [Hirani],” within seven days of the request. ACC was also required to “update 

and/or revise such information as requested by [Hirani] at any time, either prior to or during the 

performance of [ACC’s] [w]ork.” See Subcontract at Art. II, § 2.2.

35. In or around April 2011, Hirani hired Tom Miller of JSM Associates, Inc. as the scheduler 

for the Project tasked with producing an initial schedule, or “Baseline Schedule,” and periodically

updated schedules for the Project. Day 1 A.M. Tr. at 78:9–78:22; see Day 1 P.M. Tr. at 39:23–

41:15, 64:11–65:7.

36. Hirani submitted the Baseline Schedule to the USACE, as agreed upon by both Hirani and 

ACC, and the USACE subsequently approved it in June of 2011. See Pl.’s Ex. 45; Day 1 A.M. Tr. 

at 78:23–81:24.

37. The Baseline Schedule projected a Project completion date of December 9, 2011. See Pl.’s 

Ex. 45 at 18.

38. After the USACE approved the Baseline Schedule, neither ACC nor the USACE agreed to 

an updated Project schedule again. Day 1 A.M. Tr. at 81:22–82:4.
15

39. Hirani submitted updated schedules to the USACE an additional four times: (1) on January 

26, 2012, Pl.’s Ex. 46; (2) on April 23, 2012, Pl.’s Ex. 47; (3) on October 2, 2012, Pl.’s Ex. 48; 

and (4) on December 12, 2012, Pl.’s Ex. 49.3 The USACE rejected each of these submissions. 

See Pl.’s Exs. 46, 47, 48, 49; see also Day 1 A.M. Tr. at 85:13–85:21 (explaining that designation 

of “E” on each cover page signified rejection by the USACE).

40. Throughout its performance of the work, ACC supplied scheduling information to Hirani 

in the form of (1) “Basic Outlines of Dates for Work Performed at the Site,” a backward-looking 

spreadsheet summarizing work performed, and the dates of work performed, by ACC, see Pl.’s 

Ex. 29; and (2) three-week “look-ahead” schedules, which as the name implies provided a 

projection of work to be accomplished in the ensuing three weeks, see Pl.’s Ex. 41. Additionally, 

Hirani’s own Quality Control Reports, which Ms. Stephen prepared on a daily basis, provided 

information about work that ACC had accomplished on a given day. See Pl.’s Ex. 30.

41. ACC further supplied an “Option 1 Schedule” reflecting when ACC intended to complete 

Option 1 of the Prime Contract, i.e., the stone cladding on the stem walls. See Pl.’s Ex. 139 at 3–

5.

42. On February 18, 2013, Hirani issued a Show Cause letter to ACC, in which Hirani 

requested that ACC provide a proposed schedule for completing the Project with a contract 

completion date of April 19, 2013. See Defs.’ Ex. 54 at 2.

 3 There is some ambiguity in the record as to whether Plaintiff’s Exhibits 46–49 are in evidence, as questions regarding 

those exhibits were met with repeated objections regarding hearsay within those records. See Day 1 A.M. Tr. at 

84:15–94:25. Although the court resolved these objections in favor of ACC, ruling that the USACE’s comments as 

reflected in Exhibits 46–49 were not hearsay, see Day 1 P.M. Tr. at 3:2–5:7, ACC never formally sought to move 

these exhibits into evidence. In any event, the sole purpose for which the court cites Plaintiff’s Exhibits 46–49—that 

the USACE rejected Hirani’s updated schedules—was independently established through the testimony of Ms. 

Stephen. 
16

43. The Show Cause letter was the first time, in writing, that Hirani had informed ACC that 

the scheduling information ACC had submitted was unsatisfactory in form or detail, in the manner 

provided in the Subcontract. See Defs.’ Ex. 54; see also Subcontract at Art. II, §§ 2.1–2.3.

44. Additionally, the Show Cause letter was the first time, in writing, that Hirani had asked

ACC to update or revise any unsatisfactory scheduling information, in the manner provided in the 

Subcontract. See Defs.’ Ex. 54; see also Subcontract at Art. II, §§ 2.1–2.3.

45. Mr. Hirani testified at trial that Hirani requested scheduling data, verbally or in writing, 

from ACC “50 to 100 times” prior to February 18, 2013, but ACC never delivered it. See Day 1 

P.M. Tr. at 35:24–36:12 see also Defs.’ Ex. 62 at 6 (asserting in a letter to ACC dated March 22, 

2013, that “ACC has failed to provide the necessary information required to maintain a progress 

schedule for the last 20 months on the [P]roject as requested by Hirani . . . and did not provide 

written justification of the delays per the schedule specification”) (emphasis added). 

46. The court does not find this testimony to be credible. Defendants presented no evidence, 

written or testimonial, to corroborate Mr. Hirani’s assertion that ACC left unanswered Hirani’s 

demands for satisfactory scheduling information. 

47. Defendants did not submit proof of any written demand by Hirani, in any form (e.g., letter, 

email, handwritten note), for scheduling information from ACC during the nearly 20 months that 

passed between approval of the Baseline Schedule in June 2011 and the Show Cause letter on 

February 18, 2013. The voluminous documentary evidence showed that ACC maintained copious 

records concerning the Project, including of its communications with Hirani. The court finds it 

utterly implausible that, if as Mr. Hirani testified, he demanded scheduling information from ACC 

dozens of times without success before February 18, 2013, that there would be no written record 

whatsoever of at least one such demand. 
17

48. Defendant presented no testimonial evidence to corroborate Mr. Hirani’s claim regarding 

unanswered demands for scheduling information, including from Eric Hirani, Mr. Hirani’s son, 

who was physically present at the Project more often than his father. 

49. Once more, beyond Mr. Hirani’s incredible testimony, there is no evidence in the record 

that ACC ever refused, verbally or in writing, to provide Hirani with updated scheduling

information as required by § 2.2 of the Subcontract and Section 01 32 01 of the USACE’s 

Construction Specifications.

PROGRESS ON THE PROJECT

50. On April 8, 2011, four days after Hirani entered into the Subcontract with ACC, the 

USACE issued a Cure Notice to Hirani requiring the following corrective actions to cure Hirani’s 

performance problems on the Project to date: (1) resubmit an approvable Contractor Quality 

Control plan; (2) designate a qualified Contractor Quality Control System Manager; (3) resubmit 

an initial one-year Project schedule with a completion date of October 12, 2011; (4) supply

construction submittals; and (5) provide proof that competent Project Management staff is in place 

to manage the Project. See Pl.’s Ex. 56.

51. On August 26, 2011, the USACE issued a Change Order AD to Hirani, providing a noncompensable time extension of 48 calendar days, thereby extending the substantial completion 

date for the entire Project to November 30, 2011. Pl.’s Ex. 40 at 3–4.

52. Over one year later, the Project remained unfinished. On December 16, 2012, the USACE 

issued a unilateral modification to the Prime Contract through Change Orders AQ, AY, BF, and 

BJ. See Pl.’s Ex. 123. The contract completion date for the Prime Contract was extended by 60 

calendar days because of these modifications, resulting in an expected Project completion date of 

January 29, 2012. See Pl.’s Ex. 123 at 5.
18

53. Change Order BJ, known as “East Side Grade Beam Adjustment,” required Hirani to 

supply the labor, equipment, and materials to trim concrete and rebar in the areas where the grass 

met the grade beam in order to allow grass to grow in that area. See Pl.’s Ex. 123 at 4; Day 2 A.M. 

Tr. at 56:4–58:16.

54. From July 3, 2012, to April 23, 2013, the USACE issued numerous unilateral change orders 

and constructive change directives to Hirani, who in turn subcontracted the work to ACC to 

complete these change orders. See Pl.’s Ex. 40 at 34–69.

55. On April 5, 2013, the USACE issued Change Order BL to Hirani, providing a noncompensable time extension of 180 calendar days, thus extending the Project completion date from 

January 29, 2012, to July 27, 2012. See Pl.’s Ex. 40 at 61–62. According to Change Order BL, 

the USACE authorized the additional time due to “120 days [ ] for concurrent delay and 60 days . 

. . for work stoppage due to weather impacts.” Id. at 62. The USACE identified the “concurrent 

delay” as related to, among other things, “East and West grade beam adjustment” and “Additional 

west side grading.”

OPTION 1 AND THE GEOMETRY “BUST”

56. Section 02 00 00 of the USACE’s Construction Specifications relates to the stone cladding 

and coping to be affixed to the permanent levee walls and details requirements for its completion. 

See Pl.’s Ex. 12, § 27 at 215–25.

57. On December 17, 2010, the USACE issued a modification exercising Option 1 in the 

amount of $641,369.00, requiring Hirani to install the stone cladding and coping on the permanent 

levee walls. This modification increased the Prime Contract from $3,833,097.00 to $4,474,466.00. 

See Pl.’s Ex. 26.
19

58. On August 12, 2010, the USACE issued Amendment No. 0003, modifying the Site Stone 

Cladding Specification. The Amendment specified American Granite, as supplied and fabricated 

by Champlain Stone Ltd., as the source of cladding and coping stones for the levee wall façade 

and the granite pavers on the exposed grade beam surface. Amendment No. 0003 further provides 

that “only the stone from Champlain Stone, Ltd. has been presented and approved by the 

Commission of Fine Arts, the National Capitol Planning Committee, and the National Park 

Service.” According to the Amendment, if Hirani were to select a stone from any other 

manufacturer, Hirani would be responsible for obtaining approval from those organizations. Pl.’s 

Ex. 15. 

59. The USACE and National Park Service wanted the color of the stone cladding on the levee 

walls to match the color of the stone on the Lockkeeper’s House, a historical building on the corner 

of 17th Street and Constitution Avenue. Day 3 A.M. Tr. at 21:21–23:19.

60. On December 14, 2011, ACC executed Change Order No. 001 to the Subcontract in the 

amount of $613,650.00, in which Hirani awarded Option 1 to ACC to complete the stone cladding 

and coping work on the permanent levee walls. Pl.’s Ex. 79.

61. On or around May 18, 2011, ACC received sample American Granite stones, supplied by 

Champlain, the only supplier contractually permitted to provide stone for the Project. ACC visited 

the Lockkeeper’s House to compare the stone samples with the existing stone façade on the 

Lockkeeper’s House and found they did not match. See Pl.’s Ex. 31 at 139–40.

62. The following year, on or around April 5, 2012, ACC learned that there was a geometry 

“bust” problem with Option 1, meaning that the stone cladding could not be installed as required 

by the Project plans because the structural drawings and the architectural drawings were 

misaligned. See Pl.’s Ex. 87; Day 3 A.M. Tr. at 57:7–58:3.
20

63. On July 27, 2012, employees of Janeiro, Inc., ACC’s stone installation subcontractor,

visited the Project site to build mockups of a sample stone alternative to Champlain stones on a 

portion of the levee wall for review by the Commission of Fine Arts, the National Capitol Planning 

Committee, and the National Park Service. Pl.’s Ex. 1 at 59; see Day 2 P.M. Tr. at 51:4–51:14.

64. Around the first week of November 2012, the USACE, Champlain Stone Ltd., Janeiro, 

ACC, and OLIN, the landscaping and stone architect on the Project, held a meeting. During the 

meeting, Champlain’s representatives explained that they could not provide stones in the strength,

sizes, and shapes required to complete Option 1. Day 3 A.M. Tr. at 18:7–18:24.

65. Following this meeting, the USACE requested that Janeiro provide different stone samples 

from different quarries that could be used in the Project. Id. at 21:21–23:19; see Pl.’s Ex. 1 at 69.

66. Rick Janeiro suggested stones from a quarry in Carderock, Maryland, for the cladding and 

a granite stone called Jet Mist Granite from a quarry in Le Croix, Canada, for the pavers and 

coping. Day 3 A.M. Tr. at 23:16–24:3.

67. In early 2013, Rick Janeiro, Ed Hollander of ACC, OLIN, the National Park Service, and 

the USACE visited the Carderock quarry. Pl.’s Ex. 170; Day 3 A.M. Tr. at 26:17–26:19.

Ed Hollander co-founded ACC with Ms. Stephen and served as ACC’s field superintendent for 

the Project. Mr. Hollander died before the start of trial. 

68. In early 2013, Janeiro received a notice of approval for the two types of stone chosen: 

Carderock stone and Jet Mist Granite. Day 3 A.M. Tr. at 25:3–25:6; Day 5 A.M. Tr. at 88:7–

88:11.

69. On March 18, 2013, Hirani’s on-site field superintendent submitted RFI No. 122 requesting 

confirmation of the following changes to the Site Stone Cladding Specification:
21

Change stone veneer thickness from 3” to 2”.

Jet Mist Copings with rock pitch / split face and thermal top and 

ends

Jet Mist wall end stones with end face thermal finish and wall face 

rock pitch / split face

Jet Mist typical veneer for dark shaded stone as viewed on contract 

drawings L-044 and L-045

Joint widths are to be 3/8” plus / minus tolerances

Variance in the stone surface will be allowed to the extent exhibited 

in the sample reviewed on site.

Tolerances listed in the specifications will be modified / exceeded 

due to the nature of the stone selected.

Thermal finish on veneer stone will be applied in accordance with 

Olin’s review comments on submittal 27-7.

Due to the nature of the split faced stone the design intent of having 

a 1/8” reveal on the brass expansion joints becomes impossible. 

Please confirm that some deviation from this expected and 

acceptable.

Pl.’s Ex. 43 at 262.

70. On March 21, 2013, Robert Franklin of the USACE responded to RFI No. 122, and

approved the use of two-inch thick stone cladding and a joint width of three-eighths inch. Pl.’s 

Ex. 43 at 262; see Day 5 A.M. Tr. at 87:4–87:18.

71. The record does not support Defendants’ assertion that the USACE resolved the stone 

geometry issue—also known as the “geometry bust”—as early as August 14, 2012. See Defs.’ 

Rebuttal at ¶ 212.

72. Instead, the record supports ACC’s contention that the “geometry bust” issue was not 

resolved by the USACE until March 21, 2013. Compare Pl.’s Ex. 105 (ACC letter dated August 

17, 2012, noting that ACC is “still waiting on many decisions and resolutions . . . associated with 

[the geometry bust]”), with Pl.’s Ex. 43 at 262 (March 21, 2013, USACE response to RFI No. 122, 

memorializing that teleconferences held on March 11 and 14 to “address [c]ontractor stone issues” 

and that on March 19, 2013, “[Hirani was] told via email and phone call that [the comments in 

RFI] are acceptable”).
22

73. Until March 21, 2013, when the USACE responded to RFI No. 122, ACC could not cut the 

stone for cladding and coping in order to move forward on Option 1.

74. On March 26, 2013, Ed Hollander prepared a work plan for moving forward on Option 1 

of the Project. Day 5 A.M. Tr. at 89:21–92:6; Pl.’s Ex. 139. This proposed Option 1 schedule

estimated the stonework would be completed by the end of July 2013. Pl.’s Ex. 139 at 5.

FEBRUARY 2013 THROUGH MAY 2013 ON THE PROJECT

75. On or about February 14, 2013, the USACE sent Hirani a Cure Notice letter, requesting 

that Hirani show cause why the Prime Contract should not be terminated. Hirani responded to the 

USACE’s letter by letter dated February 25, 2013. See Pl.’s Ex. 131.

76. On February 19, 2013, David Lussier, Hirani’s newly installed on-site field representative,

began working at the Project site. See Pl.’s Ex. 31 at 577; Pl.’s Ex. 30 at 813.

77. From February 24, 2013, through April 16, 2013, the National Cherry Blossom Festival

and its subsequent two-day cleanup took place on the National Mall. Pl.’s Ex. 31 at 611–912.

78. As a result of the Cherry Blossom Festival, ACC was not able to perform work on the 

Project on and under 17th Street, as the road was required to stay open during the Festival. E.g., 

id. at 612 (Hollander noting that ACC is “[n]ot allowed back into 17th Street to complete remaining 

work until after April 15, 2013”); see also Day 4 P.M. Tr. at 10:21–11:21 (Vogt explaining that 

during Cherry Blossom Festival, “[t]here was limited work allowed” and “no road work” could be 

performed on the Project because “the road has to remain open during Cherry Blossom time”).

79. On March 4, 2013, the USACE paid Colonial, as surety, $285,947.84 for work performed 

by ACC between November 21, 2012, and January 4, 2013, as reflected in ACC’s Payment 
23

Requisition No. 19. ACC actually had requested $368,107.46 under Payment Requisition No. 19, 

but the USACE withheld $100,000 from its payment.4 

80. By letter dated March 12, 2013, ACC informed Hirani that it would be out of productive 

work on the Project within three days due to Plaintiff and Hirani’s inability to agree on the scope 

and price of the additional work Hirani had demanded.

81. By letter dated March 29, 2013, ACC sent Hirani a payment demand on Payment 

Requisition No. 19 for work ACC had completed at the site between November 21, 2012, and 

February 20, 2013, in the amount of $373,189.93. See Pl.’s Ex. 141. According to the letter, 

Hirani had last paid ACC on or about December 5, 2012, for work completed through November 

20, 2012. Id. at 1. ACC complained that the amount due on Payment Requisition No. 19 remained 

outstanding, even though ACC understood that the USACE had approved the work for that time 

period and remitted payment. Id. at 3–4. 

82. On April 2, 2013, a key meeting with all principals—Hirani, ACC, and Colonial—took 

place at National Park Services headquarters to discuss “open change orders, pay estimates not 

being paid, and moving forward on work and payments.” See Pl.’s Ex. 31 at 828–29.

83. On April 10, 2013, David Lussier, Hirani’s on-site Project Manager, quit. Pl.’s Ex. 31 at 

884–885, 920; Day 2 A.M. Tr. at 120:21-22.

84. Following David Lussier’s resignation from the Project, Hirani directed ACC to shut down 

field operations effective Monday, April 15, 2013, because the USACE and National Park Service 

 4 The court sees no need to resolve the parties’ dispute as to the reason for the withheld $100,000. Defendants do not 

claim that the $100,000 was withheld because that amount reflects either non-compensable work or the cost of 

materials not contemplated by the Subcontract. Rather, they assert that the sum was retained by the USACE, as is 

common for owners to do as a project nears completion. Therefore, there is no dispute as to whether the Miller Act 

allows ACC to seek recovery of that sum. 
24

would not allow field operations at the Project to continue absent competent field supervision 

provided by Hirani. See Pl.’s Ex. 146; Pl.’s Ex. 30 at 897. 

85. The Project site was shut down from April 15, 2013, through April 22, 2013, due to Hirani’s 

failure to provide competent field supervision. Pl.’s Ex. 30 at 897–902; see Pl.’s Ex. 147.

86. On April 22, 2013, Eric Hirani called Ed Hollander to tell him Hirani had hired an on-site 

supervisor and asked Hollander to provide an estimated start date so that the new on-site manager 

could be present. Hollander thereafter began calling crew members to restart the Project the next 

morning. Pl.’s Ex. 31 at 917–18.

87. Work on the Project resumed on April 23, 2013, when Rob Kraus began his first day as 

Hirani’s new Field Representative and the ACC crew returned to the Project site. See Pl.’s Ex. 

147; Pl.’s Ex. 31 at 919–20.

88. The record evidence does not support Defendants’ assertion that ACC unilaterally shut 

down the Project site from April 15 through April 22, 2013. In letters to Hirani dated April 14, 

2013, and April 22, 2013, Ed Hollander memorialized phone calls received from Eric Hirani 

informing ACC that the USACE and National Park Service would not allow work on the Project 

site to continue without a Hirani Field Representative present. See Pl.’s Exs. 146, 147. Copies of 

these letters were sent to Robert Franklin of the USACE and Wayne Nunziata of Colonial. See id. 

The substance of these letters is corroborated by Ed Hollander’s Daily Reports, see Pl.’s Ex. 31 at 

909–18, which reflect that no work was allowed on the Project site due to Hirani’s failure to have 

approved supervision personnel on-site, id. Likewise, Ms. Stephen, as Hirani’s on-site Contractor 

Quality Control Assistant, inputted daily Hirani’s Quality Control Reports during this time period 

reflecting that there were “[n]o trades on site due to project shutdown until such time that a Hirani 
25

project superintendent is on site full time.” See Pl.’s Ex. 30 at 897–902. Thus, Hirani’s own 

records confirm ACC stopped work as ordered by the USACE.

89. Defendants have not offered any evidence that Hirani, Colonial, or the USACE rejected 

Hollander’s characterization of the shutdown, orally or in writing, in response to Hollander’s 

letters of April 14 or April 22, 2013, or the Quality Control Reports submitted by Ms. Stephen, to 

which Hirani and the USACE had access. If ACC in fact had shut down the work unilaterally, the 

court would expect there to be some contemporaneous documentary evidence to support that 

position. But Defendants presented no such records. The absence of such records in a heavily 

documented construction project leads the court to find that the USACE ordered the mid-April 

shutdown.

90. From April 24 through April 26, 2013, ACC excavated and cut the areas between the Naval 

Brass Channel and the 17th Street curb line on the east side. ACC began to cut the grade beam in 

these excavated areas from nine-feet wide to seven-feet wide, as required by Change Order BJ. 

Day 2 A.M. Tr. at 58:21–58:22; see Pl.’s Ex. 1 at 84; Pl.’s Ex. 31 at 921–26.

91. On April 26, 2013, ACC backfilled two of the excavated grass areas adjacent to the 17th 

Street curb line on the east side and covered the remaining areas with lumber and plywood for 

backfilling the following week. Pl.’s Ex. 172 at 1; Pl.’s Ex. 31 at 925–26.

92. By letter dated April 26, 2013, the USACE terminated the Prime Contract with Hirani for 

default on the Project. Pl.’s Ex. 150.5

93. In the termination letter, USACE explained that it had “little confidence” that Hirani would 

finish the Project because Hirani had not: (1) taken necessary steps to improve its progress; 

(2) critical work onsite had ceased since March 22, 2013 “due to subcontractor management and 

 5 The court makes no finding of fact as to when Hirani or Colonial received notice of this termination letter.
26

nonpayment issues;” (3) Hirani “had not submitted periodic progress schedules;” and (4) Hirani 

failed to “fulfill commitments to meet milestone deadlines necessary for completing the remainder 

of the [Prime] Contract.” Pl.’s Ex. 150.

94. The USACE further stated that Hirani’s performance on the Project had been “beset with 

scheduling problems, a failure to pay subcontractors in violation of the Contract, and a 

demonstrated lack of diligence.” Id.

95. The court finds that the USACE terminated Hirani because Hirani failed to submit periodic 

progress schedules in accordance with its obligations under the Prime Contract and the USACE 

Specifications incorporated therein; Hirani failed to timely pay its subcontractors, including ACC;

Hirani failed to provide on-site management on the Project; and Hirani failed to diligently manage 

and supervise the Project.

96. The court’s conclusion that Hirani was at fault for its own termination is bolstered by record 

evidence that, as of Hirani’s termination on April 26, 2013, Hirani had received three interim 

unsatisfactory performance evaluations, a cure notice (sent merely days after Hirani entered into 

the Subcontract with ACC), and a show cause notice from the USACE. See Pl.’s Ex. 150. Notably, 

the April 8, 2011, Cure Notice identified many of the same deficiencies in Hirani’s performance 

at that early stage that would eventually lead to Hirani’s termination, including Hirani’s failure to 

secure adequate Project Management staff to supervise the schedule and subcontractors as well as

Hirani’s late start on the Project. See Pl.’s Ex. 56.

97. ACC crew did not work on the Project site on Saturday, April 27 or Sunday, April 28, and 

heavy rains prevented work on Monday, April 29 and Tuesday, April 30, 2013. See Pl.’s Ex. 30 

at 911–12; Pl.’s Ex. 31 at 927–30; Day 2 A.M. Tr. at 61:13–61:20. 
27

98. On April 30, 2013, Ed Hollander learned that Hirani had been terminated by the USACE. 

See Pl.’s Ex. 31 at 929–30.

99. By letter dated April 30, 2013, Mr. Hirani rejected USACE’s Termination for Default and 

requested a meeting with the USACE so that the termination could be reversed. Pl.’s Ex. 151.

100. On May 1, 2013, Eric Hirani called Ed Hollander and told him that Hirani was fighting the 

termination and that ACC was not to stop work at the Project site. See Pl.’s Ex. 31 at 931–932.

101. On May 1, 2013, Ed Hollander detailed the following in his daily report:

WORK PERFORMED TODAY: All crew members in today; 

Today, clean up lumber and WWF fabric mesh up off of East Side 

of project; Backfill remaining East Side Grade Beam cutting hole 

along curb line at East Side of project; Remove that covering lumber 

and plywood and take to staging yard; Install temporary fence at 

construction entrance East Side at end of day; finish grass cutting 

and cleanup of any trash or debris at East Side from construction 

operations; . . . Cleanup West Side work area of any possible 

remaining minor construction trash from last week work; . . . Holes 

were getting backfilled; safety fences were going up, and cleanup at 

site was occurring by ACC; Heavy equipment maintenance and 

cleanup and greasing in afternoon.

Id. at 932.

102. On May 1, 2013, ACC backfilled the excavated grass areas adjacent to the 17th Street curb 

line on the east side. Day 2 A.M. Tr. at 58:21–58:23; Pl.’s Ex. 30 at 913–14; see Pl.’s Ex. 1 at 88; 

compare Pl.’s Ex. 1 at 84 (April 26, 2013 photo), with Pl.’s Ex. 1 at 86–89 (May 2, 2013 photos).

103. On May 2, 2013, Hirani conducted a walk-through of the Project site with the USACE. 

Pl.’s Ex. 30 at 915; see also Pl.’s Ex. 1 at 86–89.

104. On May 2, 2013, Eric Hirani sent Ms. Stephen an email informing her to cease all work on 

the Project immediately, due to Hirani’s termination. Pl.’s Ex. 152.
28

105. Ms. Stephen continued entering daily reports into the RMS quality control system in her 

role as Hirani’s on-site Quality Control System Administrator until May 6, 2013. See Day 2 A.M. 

Tr. at 77:25–78:4.

COLONIAL’S COMPLETION OF THE PROJECT

106. After Hirani’s termination, the USACE made a demand upon Colonial to satisfy its 

obligations under the Performance Bond. Day 4 A.M. Tr. at 17:1–17:3.

107. To finish the Project, Colonial retained the consulting firm Loewke Brill in June 2013. 

Day 4 A.M. Tr. at 18:22–18:23.

108. Michael Vogt is vice president of Loewke Brill, and in his role on the Project, Mr. Vogt 

met with Robert Franklin and John Devine of the USACE in July 2013 to discuss Hirani’s 

termination, the status of the Project, and next steps to complete the Project. Day 4 A.M. Tr. at 

20:20–21:16.

109. Loewke Brill subsequently considered the proposals of multiple potential contractors 

seeking to complete the Project, including proposals from ACC, Akima Construction, and Fort 

Myer Construction. Day 4 A.M. Tr. at 25:11–25:16, 26:16–26:23, 28:17–29:20.

110. As of September 30, 2013, the final Prime Contract price was $4,632,715.23. Defs.’ Ex. 

90, at 2. Twenty-seven modifications had been issued totaling $799,618.23, added to the original 

Prime Contract price of $3,833,097.00. Id. At that point, Hirani had earned but had not been paid 

$161,071.75. The contract balance was therefore $1,257,442.06. See id.

111. On September 30, 2013, the USACE and Colonial entered into a Surety Takeover 

Agreement. See id. at 2.

112. In the Surety Takeover Agreement, the USACE agreed to pay Colonial $1,257,442.06. See

id.
29

113. Paragraph 10 of the Surety Takeover Agreement provides that the USACE would continue 

to assess liquidated damages at the rate of $1,379.00 for each calendar day of unexcused delay 

until performance is substantially complete. Id. at 4. As of April 26, 2013—the date of Hirani’s 

termination—the official contract completion date, including excused delays, was July 27, 2012. 

Id.

114. The USACE ultimately never assessed liquidated damages against the contract balance. 

Day 4 P.M. Tr. at 75:6–75:7.

115. On September 30, 2013, Colonial entered into a subcontract with Akima Construction 

Services, LLC, in the amount of $1,326,244.00. See Defs.’ Ex. 91 [hereinafter Akima 

Subcontract].

116. Akima agreed to furnish all labor, materials, services, and equipment to complete the 

agreed-upon scope of work. Defs.’ Ex. 91, Ex. A.

117. Akima began performance of the Akima Subcontract on October 1, 2013. Defs.’ Ex. 92. 

118. Akima’s scope of work included, among other things: excavating for grade beam, installing

flowable fill, rebarring cage for the bank, installing cobblestone pavers in the roadway, digging 

holes and planting trees, removing construction fencing, and finalizing site cleanup. Defs.’ Ex. 

91, Ex. A.

119. Akima also performed the remainder of work left by ACC to complete Change Order BJ. 

See Defs.’ Ex. 98 (line item 80-92).

120. To complete Option 1, Loewke Brill retained a fabricator called Structural Stone to 

fabricate the stone from the Carderock quarry. Defs.’ Ex. 132.

121. To complete Option 1, Loewke Brill retained a stone installer called Lorton Stone, LLC, 

to install the wall cladding, coping stone, and pavers. See Defs.’ Ex. 111.
30

FINDINGS AS TO WITNESS CREDIBILTY

122. Irene Stephen is a co-founder and owner of ACC and a cost accounting consultant for heavy 

and highway civil construction contractors. She testified as both a fact witness and a cost 

accounting expert in the heavy and highway civil construction contracting industry.

123. Ms. Stephen has been working as a cost accountant in the heavy and highway civil 

construction contracting industry for 45 years. See Pl.’s Ex. 166.1. Ms. Stephen is certified by 

the USACE in Construction Quality Management for Contractors. See Pl.’s Ex. 166.2.

124. Ms. Stephen worked as Hirani’s “Alternate Contractor Quality Control System Manager” 

and “Quality Control System Administrator” for the Project. In that full-time role, Ms. Stephen 

was expected to maintain a presence at the Project site; to assist with the scheduling, reviewing, 

checking, and certifying of all submittals and shop drawings; and to draft and submit daily logs

memorializing the status of the Project site, known as “Contractors Daily Quality Control

Reports,” or QCRs. See Pl.’s Ex. 77 at 16–18; see also Pl.’s Ex. 30.

125. As a fact witness, Ms. Stephen testified about her personal knowledge and observations as 

Hirani’s on-site Contractor Quality Control Administrator from the time Hirani and ACC executed 

the Subcontract to the end of ACC’s presence on the Project site.

126. The court found Ms. Stephen’s testimony as a fact witness to be credible. Ms. Stephen 

possessed a strong memory and excellent recall of the events, which she witnessed first-hand as a 

representative of Hirani on the Project. Ms. Stephen is the only witness called during trial who 

was present on the Project site nearly every day, and the court found her testimony regarding 

progress on the Project site to be reliable and helpful. To the extent that Ms. Stephen’s testimony 

regarding the state of affairs on the Project may be biased by her interest in the outcome of the 
31

litigation, the court is assured that the testimony of Ms. Stephen it relies on is also substantiated 

by record evidence admitted at trial and other witness testimony.

127. As an expert witness, Ms. Stephen offered her opinion on the reasonable markup for the 

highway and heavy construction industry and project overhead in the District of Columbia area 

from 2011 to 2013. Ms. Stephen further offered her opinion as to the reasonable value of 

Ed Hollander’s services as ACC’s on-site supervising Project Manager. Day 1 A.M. Tr. at 52:23–

53:3.

128. The court found Ms. Stephen’s testimony as an expert witness to be credible.

129. Jitendra Hirani is the president of Hirani. Mr. Hirani testified as a fact witness.

130. At trial, Mr. Hirani testified as to his personal knowledge and observations from the time 

Hirani first bid on the Project until Hirani’s termination by the USACE.

131. Generally speaking, the court found Mr. Hirani not to be credible or helpful, certainly 

relative to Ms. Stephen. Mr. Hirani was defensive and hostile in answering questions posed by 

ACC’s counsel on direct examination, and often responded that he could not recall or did not 

remember key events central to the dispute between Hirani and ACC and to Hirani’s termination 

from the Project. Mr. Hirani spent little time at the Project site, and there was little documentary 

evidence presented to corroborate Mr. Hirani’s version of events. 

132. Mr. Hirani testified that he personally asked ACC to submit scheduling information “50 to 

100 times” and that, each time, ACC refused to submit the information upon demand, as required 

by the Subcontract.

133. The court does not credit Mr. Hirani’s testimony with regard to ACC’s role in the

scheduling of the Project. Mr. Hirani was unable to articulate how and when he asked ACC for 

these scheduling updates, nor how and when ACC rejected or ignored his requests. Moreover, 
32

Mr. Hirani’s assertion that he unsuccessfully asked ACC for scheduling information “50 to 100 

times” is unsupported by any record evidence, such as correspondence or emails with ACC. The 

first such correspondence is dated February 18, 2013, almost two years after the parties entered 

into the Subcontract. The lack of such records, when the Project otherwise was heavily 

documented, leads the court to find that ACC did not refuse to submit scheduling information as 

claimed by Mr. Hirani.

134. Michael Vogt is an executive vice president of the construction consulting firm, Loewke 

Brill Consulting Group. Mr. Vogt became involved in the Project after Hirani was terminated by 

the USACE, at which time Colonial hired Loewke Brill to assist in the Project’s completion in or 

around June 2013. Day 5 A.M. Tr. at 11:22-12:8, 16:18–18:15. On the Project, Mr. Vogt served 

as the Quality Control System Manager for Colonial. Day 5 A.M. Tr. at 81:21–82:12. Mr. Vogt 

testified as a fact witness.

135. As a fact witness, Mr. Vogt testified about his personal knowledge and observations about 

the completion of the Project following Hirani’s termination, including the status of the Project 

after ACC left the site, and the hiring of Akima Construction and other subcontractors to complete 

the Project.

136. The court found Mr. Vogt to be a credible witness. Mr. Vogt was a forthright and honest 

witness, who gave detailed testimony regarding the events he witnessed firsthand after Hirani’s 

termination until Colonial’s eventual completion of the Project.

137. Fred Ricky Janeiro is the president of Roubin & Janeiro, d/b/a Janeiro, Inc. Janeiro is a 

local stone contractor that furnishes and installs natural stones.
33

138. The court found Mr. Janeiro to be a credible witness. Mr. Janeiro testified honestly and 

helpfully regarding ACC’s work on Option 1, Janeiro’s involvement in locating suitable stones for 

cladding and coping of the permanent levee walls, and resolution of the geometry “bust.”

139. Robert Franklin is a project engineer for the USACE who was tasked with management 

and oversight of the Project. Day 5 A.M. Tr. at 24:1–24:22. Mr. Franklin testified as a fact witness.

140. As a fact witness, Mr. Franklin specifically testified about progress (or lack thereof) on the 

Project from January through April 2013, as well as the decision to terminate Hirani. Mr. Franklin 

asserted that Hirani was terminated in part because ACC failed to progress the work on the Project 

beginning in mid-March 2013 due to disputes between ACC and Hirani regarding payment. 

Mr. Franklin also asserted that the USACE did not prohibit ACC and Hirani from continuing field 

operations at the Project due to inadequate on-site supervision by Hirani.

141. Mr. Franklin testified to the best of recollection, but he had difficulty accurately recalling

details of the Project during the critical time period of mid-March 2013 through early May 2013. 

The record evidence refutes key portions of Mr. Franklin’s testimony, most notably his testimony 

that (1) the USACE had not ordered ACC to stop work in April 2013 because of the absence of a 

Hirani on-site Project manager and (2) ACC had essentially ceased doing productive work during 

this period without cause. The court therefore does not credit Mr. Franklin’s testimony to the 

extent it was inconsistent with record evidence.

142. Although he did not testify, the court accepted for their truth statements made by Eric 

Hirani, as reflected in correspondence prepared by ACC or in ACC’s Daily Reports. See supra 

¶¶ 86, 88, 100, 104. As discussed below, ACC’s records are admissible under the business records 

exception, see Fed. R. Evid. 803(6), and Eric Hirani’s statements contained therein are not hearsay 

and are admissible under Federal Rules of Evidence 801(d)(2)(C) and (D).
34

DOCUMENTS RELIED ON BY THE COURT

143. In making its findings of fact, the court has relied on the contemporaneous photos 

Ms. Stephen took of the Project site. See Pl.’s Ex. 1. According to Ms. Stephen, taking such 

photos was a regular practice of hers on construction jobsites, and she took photos of the Project 

site for ACC. See Day 2 A.M. at 43:18–44:7. The parties stipulated during trial that the dates 

superimposed on these photographs in yellow text derive from metadata within the photo file, and 

are therefore assumed to be correct. Day 2 P.M. Tr. at 32:11–33:9.

144. In making its findings of fact, the court has relied on Ed Hollander’s Daily Reports

documenting his activities as ACC’s Field Superintendent on the Project and all work activities on 

the Project. See Pl.’s Ex. 31. The Daily Reports are admissible as business records of ACC. See

Fed. R. Evid. 803(6); see also Equity Lifestyle Props., Inc. v. Fla Mowing & Landscape Serv., Inc., 

556 F.3d 1232, 1243–44 (11th Cir. 2009) (holding that invoices based upon a foreman’s daily 

reports were admissible as business records); Just Wood Indus., Inc. v. Centex Const. Co., 188 

F.3d 502, No. 98-1855, 1999 WL 606859, at *6 (4th Cir. Aug. 12, 1999) (holding that 

subcontractor’s daily log book met the business records exception); Matador Drilling Co. v. Post, 

662 F.2d 1190, 1199 (5th Cir. 1981) (holding that drilling company’s daily reports were admissible 

under business records exception); cf. United States v. Bess, 75 M.J. 70, 74 (C.A.A.F. 2016) 

(holding that daily muster reports qualified as admissible business records). These Daily Reports 

were “made at or near the time by” Mr. Hollander, someone with knowledge; the reports were 

“kept in the course of a regularly conducted activity of a business”; making these reports was “a 

regular practice” of that business activity; and the court has not been shown that these reports were 

prepared in such circumstances as to suggest a lack of trustworthiness. See id. at 73–74; Fed. R. 

Evid. 803(6). Although Mr. Hollander is deceased and unavailable to testify as to the accuracy of 
35

these reports, the court finds the Daily Reports to be a reliable recounting of events as they 

occurred. Additionally, the court has gone to great lengths to substantiate information it relied on 

within these Daily Reports with other record evidence and witness testimony. 

145. In making its findings of fact, the court has relied on Hirani’s daily QCRs. See Pl.’s Ex. 

30. As the on-site quality control manager for Hirani, Ms. Stephen was required to draft and input 

these reports into the Resident Management System (“RMS”) on a daily basis. These documents 

are admissible as business records of Hirani. See Fed. R. Evid. 803(6). These daily reports were 

“made at or near the time by” Ms. Stephen, someone with knowledge as a Hirani representative; 

the reports were “kept in the course of a regularly conducted activity of a business”; making these 

reports was “a regular practice” of that business activity; and the court has not been shown that 

these reports were prepared in such circumstances as to suggest a lack of trustworthiness. See id.

Ms. Stephen verified the accuracy of the reports’ contents, and contemporaneously drafted these 

daily reports in her regular practice as Hirani’s quality control representative. Additionally, the 

QCRs are admissible as statements under Federal Rules of Evidence 801(d)(2)(C) and (D). 

Ms. Stephen was Hirani’s representative on the Project at the time she completed the QCRs. 

CONCLUSIONS OF LAW

Having set forth its findings of fact, the court turns now to make its conclusions of law. 

For reasons that will become obvious, the court begins with Colonial’s counterclaims, before 

turning to Plaintiff’s claim under the Miller Act and for breach of contract.

I. COLONIAL’S COUNTERCLAIMS

At the heart of each of Colonial’s counterclaims is the assertion that ACC’s failures to 

perform breached the Subcontract, causing Colonial to incur substantial losses, costs, and expenses 

in the amount of $723,049.14 to complete the Project. To prevail on a claim of breach of contract, 
36

a party must establish (1) a valid contract between the parties; (2) an obligation or duty arising out 

of the contract; (3) a breach of that duty; and (4) damages caused by the breach. Window 

Specialists, Inc., 106 F. Supp. 3d at 88; see also Tsintolas Realty Co. v. Mendez, 984 A.2d 181, 

187 (D.C. 2009).6 “A ‘breach’ is ‘an unjustified failure to perform all or any part of what is 

promised in a contract entitling the injured party to damages.’” Window Specialists, Inc., 106 

F. Supp. 3d at 88 (quoting Fowler v. ABA Co., 262 A.2d 344, 347 (D.C. 1970)). “A material 

breach is one where the injured party received something substantially less or different from that 

for which [it] bargained.” Id.

Colonial contendsthat ACC breached the Subcontract in two material ways. First, Colonial

maintains that ACC failed to progress the work on the Project after ACC demanded, but did not 

receive, payment for Requisition No. 19 from Hirani, in violation of Paragraph 14.1 of the 

Subcontract. Second, Colonial claims that ACC breached Paragraph 2.2 of the Subcontract by 

failing to provide Hirani with scheduling information. According to Colonial, these material 

breaches of the Subcontract caused the USACE to terminate Hirani and to make a claim against 

the Performance Bond issued by Colonial. The court considers each of these alleged breaches in 

turn. 

A. ACC Did Not Fail to Substantially Progress the Work

Under Paragraph 14.1, ACC agreed that, in the event a “dispute, controversy[,] or question” 

arose in the interpretation of the Subcontract, ACC would not stop or delay performance of the 

Work or delivery of labor or material, but would continue to work “pending the determination of 

such dispute or controversy.” Subcontract at Art. XIV, § 14.1. Relying on the testimony provided 

by Robert Franklin, Colonial asserts that ACC violated Paragraph 14.1 of the Subcontract by 

 6 As the court already has found, District of Columbia law governs the claims arising out of the Subcontract. See

Mem. Op. at 27 n.8.
37

delaying work on the Project because of its ongoing dispute with Hirani regarding non-payment 

of Requisition 19. See Defs.’ FOF & COL at 35–37. According to Colonial, once engaged in this

payment dispute, ACC unilaterally suspended operations at the Project site after David Lussier’s 

resignation and failed to perform any critical work to progress the project from March 2013 

through Hirani’s termination on April 26, 2013. 

Based on the record evidence and the testimony of witnesses at trial, the court rejects

Colonial’s view of the final months of the Project. Because ACC did not unilaterally suspend 

operations on the Project from April 15 through April 22, 2013, and because it progressed the 

available work during the relevant period, the court concludes that ACC did not breach Paragraph 

14.1 of the Subcontract.

1. The April 2013 Shutdown Was Not Unilateral

Colonial’s claim that ACC unilaterally suspended operations on the Project following 

David Lussier’s resignation lacks record support. The court has found that the Project site 

shutdown from April 15 through April 22, 2013, was caused by Hirani’s failure to provide

competent field supervision as ordered by USACE. See supra ¶¶ 85–89. Contemporaneous 

business records in the form of ACC’s Daily Reports, Hirani’s QCRs, and correspondence between 

ACC and Hirani confirm that the shutdown was due to Hirani’s failure to provide on-site 

supervision. Notably, one Daily Report reflects that Eric Hirani informed ACC that it could

resume work upon Hirani’s hiring of an on-site Project manager, and that he planned the on-site 

manager’s start date to coincide with the first day that the work resumed. See Pl.’s Ex. 31 at 918. 

Moreover, it is simply implausible that ACC could have unilaterally shut down the Project without 

a single record documenting or protesting such a shut down. Had ACC acted as Colonial insists,

surely there would exist in the record at least one piece of paper from either Hirani, the USACE, 
38

or the National Park Service reflecting or objecting to ACC’s complete work stoppage. But there 

is no such record.

Accordingly, the court finds that ACC did not breach the Subcontract by unilaterally 

shutting down the Project site. 

2. ACC Progressed Work on the Project

Relying predominately on Robert Franklin’s testimony, Colonial maintains that certain

critical path items were available to ACC to complete from mid-March 2013 until Hirani’s 

termination, but that ACC did only meaningless work and willfully delayed progress on the Project

because of the payment dispute. This contention lacks sufficient evidentiary support. 

Mr. Franklin testified that the following “critical path” work was available to ACC, but not 

performed, during the time period of mid-March 2013 through April 2013: (1) installing the stone 

on the stem walls; (2) working on the grade beam sections between caissons 12 and 13, and 

caissons 13 and 14; and (3) trimming the east-side grade beam pursuant to Modification BJ. See 

Day 5 A.M. Tr. at 26:20–28:2, 36:18–37:7. Despite Mr. Franklin’s forthright demeanor at trial, 

the court does not credit Mr. Franklin’s recollection about the work available to ACC during the 

relevant time period because it is directly contradicted by record evidence. Each item identified 

by Mr. Franklin as “available” to ACC after March 2013 was actually unavailable due to delays

and events beyond ACC’s control, or ACC actually performed the work. 

First, contrary to Mr. Franklin’s testimony, ACC could not even begin to cut the stone 

required to complete Option 1 until March 21, 2013, when Mr. Franklin responded to RFI No. 122 

and approved the use of two-inch thick stone cladding and a joint width of three-eighths inch. Pl.’s 

Ex. 43 at 262. Critically, upon receiving this approval, on March 26, 2013, Ed Hollander submitted 

to Hirani and the USACE, including Mr. Franklin, an “aggressive” schedule to move forward on 
39

Option 1, with a projected completion date at the end of July 2013. See Pl.’s Ex. 139. The schedule 

contemplated mid-April as the earliest time for installing the stone—work that would be done by 

Janeiro, not ACC—and that most of that work would occur after May 1. See id. Before May 1, 

nearly all the stone cladding-related work was to be done off-site. See id. at 3 (showing design, 

fabrication, and delivery work prior to May 1). Thus, there was little available stone work at the 

Project site itself during the period that Mr. Franklin claimed ACC was not progressing the work. 

Second, from February 24, 2013, through April 16, 2013, the National Cherry Blossom

Festival prevented ACC from performing work in and on 17th Street—the precise location of the 

grade beam supported by Caissons 12, 13, and 14. In other words, because ACC did not have 

access to the roadway for seven weeks in the spring of 2013, ACC could not work on the grade 

beam sections between caissons 12 and 13, and 13 and 14, as Mr. Franklin recalled.

And finally, Mr. Franklin’s testimony that ACC did not perform the work required by 

Change Order BJ, or “even begin to cut the grade beam” on the east side of 17th Street, was plainly 

erroneous. See Day 5 A.M. Tr. at 28:5–28:16. Photographs show ACC excavated and cut the east 

side grade beam on April 26, 2013, as required by Change Order BJ. Pl. Ex. 1 at 84–85. Moreover, 

it is noteworthy that while Change Order BJ was issued to Hirani for $59,033, see Pl.’s Ex. 123 at 

5, upon Akima’s completion of Change Order BJ, Akima was paid only $9,115.33, see Defs.’ Ex. 

98 (line 87). Those different amounts make clear that ACC did the bulk of the work required to 

complete Change Order BJ before Akima came on the scene.

In summary, ACC’s final six weeks on the job was beset with delays and work stoppages 

that were beyond ACC’s control. When ACC could work it did. Therefore, the court rejects 

Colonial’s assertion that ACC failed to progress the Project in violation of the Subcontract’s 

dispute clause.
40

B. ACC Did Not Fail to Provide Scheduling Information

Colonial next argues that ACC violated Paragraph 2.2 of the Subcontract by failing to 

timely provide essential scheduling information in the form required by Hirani. Paragraph 2.2 

required ACC, “if requested,” to “furnish all scheduling information in such form and detail as 

required by [Hirani], to the satisfaction [of] [Hirani],” within seven days of the request. 

Subcontract at § 2.2. 

As the court already has found, see supra ¶¶ 129–33, Mr. Hirani’s insistence that he 

demanded scheduling information from ACC “50 to 100 times” is not credible. Mr. Hirani was 

unable to articulate how and when he asked ACC for these scheduling updates, nor how and when 

ACC rejected his requests. Additionally, there is no evidence that Hirani made any written demand 

for scheduling information prior to Hirani’s letters to ACC dated February 18, 2013, and March 

22, 2013. Not by coincidence, Hirani sent these letters only after the USACE issued Hirani a Cure 

Notice on February 14 of that year. See Defs.’ Exs. 54, 62. Nor is there any evidence of any 

demand by Hirani that ACC submit scheduling information in a form conducive to creating a 

“Primavera” schedule—a type of scheduling software—as Colonial now suggests was required. 

Cf. Defs.’ Rebuttal at 7 ¶ 56. This absence of evidence leads the court to conclude that ACC did 

not repeatedly refuse Hirani’s scheduling demands, as Colonial maintains. 

The record evidence, in fact, supports the conclusion that ACC did regularly provide 

scheduling information to Hirani, in the form of (1) outlines of work already performed on site, 

see Pl.’s Ex. 29; and (2) three week “look-ahead” schedules, see Pl.’s Ex. 41; as well as (3) the 

Option 1 schedule, Pl.’s Ex. 139. See also Defs.’ Rebuttal at 7 ¶ 56 (conceding receipt of the listed 

scheduling information). Hirani’s QCRs also provided daily updates on the work’s progress. See 

Pl.’s Ex. 30. Other than Mr. Hirani’s incredible testimony, Colonial presented no evidence of any 
41

expressed dissatisfaction with these forms of scheduling information prior to February 2013. ACC 

thus did not violate Paragraph 2.2 of the Subcontract by failing to provide scheduling information 

to Hirani, as requested. 

* * *

In light of the foregoing, the court concludes that Colonial has not established by a 

preponderance of the evidence that ACC breached the Subcontract. Therefore, as to Colonial’s 

counterclaims, the court finds in favor of ACC. 

II. ACC’S CLAIMS

Having concluded that ACC did not breach the Subcontract, the court proceeds to ACC’s

Miller Act and breach of contract claims. 

A. Miller Act Claim

Count II of Plaintiff’s Second Amended Complaint seeks quantum meruit damages against 

Colonial pursuant to the Miller Act for Colonial’s failure to pay ACC for the reasonable value of 

labor, services, materials, and equipment that ACC furnished to the Project. Colonial primarily 

advances a statute of limitations defense. It asserts that ACC is not entitled to recover any damages 

under the Payment Bond, because ACC failed to bring its Miller Act claim within one year after 

the last day on which ACC performed compensable work on the Project, as required under the Act. 

The Miller Act requires prime contractors, like Hirani, to obtain performance and payment 

bonds, which guarantee performance of the contractor’s contractual duties and payment to 

subcontractors and suppliers. 40 U.S.C. § 3131. The payment bond protects “all persons 

supplying labor and material in carrying out the work provided for in the contract for the use of 

each person,” including subcontractors. Id. § 3131(b)(2). 
42

To state a valid Miller Act claim, a subcontractor “must prove essentially two elements: 

(1) it has ‘furnished labor or material in carrying out work provided for in a contract for which a

payment bond is furnished under section 3131’; and (2) it ‘has not been paid in full within 90 

days.’” United States ex rel. Tenn. Valley Marble Holding Co. v. Grunley Constr., 433 F. Supp. 

2d 104, 114 (D.D.C. 2006) (quoting 40 U.S.C. § 3131(b)(1)). Such a claim “must be brought no 

later than one year after the day on which the last of the labor was performed or material was 

supplied by the person bringing the action.” 40 U.S.C. § 3133(b)(4). “When the statute of 

limitations begins to run on a claim under the Miller Act is necessarily a fact-intensive inquiry.” 

See Mem. Op. at 16 (citing Ex parte Sw. Sur. Ins. Co., 247 U.S. 19, 20 (1918)). The contractor 

bears the burden of proving that it performed compensable work within the limitations period. See 

United States v. Cont’l Ins. Co., 776 F.2d 962, 964 (11th Cir. 1985). 

At the summary judgment stage, the court considered the various approaches that courts 

around the country have used to determine what constitutes the “last of the labor [ ] performed or 

material [ ] supplied” for purposes of the one-year limitations period. Mem. Op. at 16–18. 

Evaluating these approaches in light of the Miller Act’s statutory text and broad remedial purpose, 

the court concluded that, in order to avoid engaging in a “subjective line-drawing exercise,” it 

would “simply look to the contract to determine for what tasks the parties agreed the subcontractor 

would be compensated, then determine the last date on which the subcontractor supplied materials 

or labor for one of those tasks.” Id. at 18; cf. Hensel Phelps Constr. Co. v. Cooper Carry Inc., 861

F.3d 267, 274 (D.C. Cir. 2017) (assessing whether breach of contract claim was time barred by 

looking solely to the “plain terms” of the contract and explaining that “it is objective language, not 

subjective intent, that guides our analysis”). Accordingly, to determine whether ACC brought a 

timely Miller Act claim, the court must: “(1) identify the compensable tasks to which the parties 
43

agreed, as set forth in the subcontract, and (2) determine the last date on which labor was performed 

or materials were supplied for any one of those tasks.” Id. at 19.

7

The court concludes that ACC timely filed its Miller Act claim on April 29, 2014. ACC last

performed compensable work under the Subcontract on May 1, 2013, when it (1) backfilled the 

east side grade beam cutting hole along the curb line, as required by Change Order BJ, and 

(2) supplied equipment to perform that work. See Pl.’s Ex. 123 at 4; see also Subcontract at Sch. 

B., Pt. 14 (providing that ACC “shall provide all grading including all excavation & backfill as per

the plans and specifications”).

8

 The court reaches this conclusion based on the following record 

evidence: (1) photographs of the Project site depicting the east side grade beam area during the 

relevant time period; (2) the testimony of Ms. Stephen; and (3) the daily reports of ACC and 

Hirani, which recorded the events that took place on the Project site on May 1, 2013. This evidence 

is described further below. 

Colonial contends that ACC’s backfilling of the east side grade beam area does not 

constitute compensable work performed within the applicable limitations period for two reasons: 

(1) no photographic evidence or eyewitness testimony establishes that ACC actually backfilled the 

area on May 1, 2013; and (2) even if backfilling did occur on that date, backfilling of the east side 

grade beam area is not compensable under the Subcontract or Change Order BJ. See Defs.’ FOF 

& COL at 41–44; Defs.’ Rebuttal at 30–31 ¶ 8. The court finds neither of these arguments 

convincing.

 7 ACC attempts to dissuade the court from applying this test, see Pl.’s FOF & COL at 61 ¶¶ 5–7, but the court declines 

to revisit the law of the case.

8 The court therefore need not consider Plaintiff’s alternative arguments that work performed by Ed Hollander on the 

Project site between April 29, 2013, through May 1, 2013, as well as fencing work and cleanup performed by ACC 

during that time period are compensable tasks under the Subcontract and thus occurred within the one-year limitations 

period. See Pl.’s FOF & COL at 61–63 ¶¶ 8–10.
44

1. On What Date Did ACC Backfill the East Side Grade Beam?

As to its first argument, Colonial insists that ACC has not shown that compensable work 

took place on May 1, 2013, because ACC failed to come forward with any photographic or 

firsthand testimonial evidence that backfilling occurred on that date. The absence of such direct

evidence, Colonial says, means that such work could have been performed on April 27, 28, or 29

(outside the one-year limitations period) or even by someone other than ACC. See Defs.’ FOF & 

COL at 48.9 

The flaw in Colonial’s position is that ACC presented sufficient circumstantial evidence 

to show that it backfilled the east side grade beam area on May 1, 2013. See Standardized Civil 

Jury Instructions for the District of Columbia, § 2.03 (2018) (“The law says that both direct and 

circumstantial evidence are acceptable as a means of proving a fact. The law does not favor one 

form of evidence over another.”). Colonial points out that Ms. Stephen was not present on the 

Project site on May 1, 2013, due to illness. But her observations as to what occurred on the days 

before and after May 1, 2013, establish that backfilling took place on that date. See Day 2 A.M. 

at 58:21–62:12. Ms. Stephen testified that she was at the Project site on April 26 when ACC 

excavated the east side grade beam. She further knew that ACC had performed no work on the 

site from April 27 through April 30, in part because of rain. See id. When she returned to the 

Project site on May 2, Ms. Stephen stated, she observed that the east side grade beam area that 

previously had been excavated was now backfilled, leading her to conclude that the work had been 

performed the day before. See id. Though this testimony qualifies as circumstantial evidence, it 

 9 Defendants also assert, based on Robert Franklin’s testimony, see Day 5 A.M. at 28:14–28:16, that ACC never even 

started to cut the east side grade beam. Defs.’ FOF & COL at 42; Final Arg. Tr. at 54:7–54:8. As discussed, this 

testimony was refuted by other record evidence.
45

nevertheless shows that ACC backfilled the east side grade beam area on May 1, 2013. See 

Standardized Civil Jury Instructions, § 2.03 (overnight falling of snow example). 

Other evidence corroborates Ms. Stephen’s recollections. Photographs taken on April 26, 

2013, depict the exposed east side grade beam area covered with plywood. See Pl.’s Ex. 172 at 1–

5. Then, photographs taken on May 2, 2013, depict the previously exposed areas now backfilled, 

see id. at 6–9; see also Day 5 A.M. Tr. at 66:4–66:7 (Robert Franklin reviewing these photos and 

testifying that the area portrayed on April 26, 2013, covered with plywood is the same area shown 

backfilled on May 2, 2013). In between these two dates, both Hirani’s QCRs and ACC’s Daily 

Reports confirm that ACC did no work from April 27 to April 30. See Pl.’s Ex. 30 at 910–912; 

Pl.’s Ex. 31 at 925–30 (no reports for April 27 and April 28, which were a Saturday and Sunday; 

reports for April 29 and April 30 indicate no work due to, at times, “heavy” rains). Therefore, the 

backfilling must have occurred on the first day after April 26 that ACC worked on the Project site, 

which was May 1, 2013. 

Though there is sufficient circumstantial evidence to support that finding, there is also 

direct evidence. Hirani’s QCR for May 1, 2013, states under the heading “Activities in Progress”: 

“Backfill east side grade beam.” Pl.’s Ex. 30 at 913. ACC’s Daily Report is to the same effect. It 

memorializes that the east side grade beam areas, temporarily covered with plywood the previous 

week, were backfilled on May 1: “Backfill remaining East Side Grade Beam cutting hole along 

curb line at East Side of project; Remove that covering lumber and plywood and take to staging 

yard.” Pl.’s Ex. 31 at 931–32. These records thus corroborate the logical inference the court draws 

from Ms. Stephen’s testimony and the photographs taken on April 26 and May 2, 2013, namely, 

that ACC backfilled the east side grade beam area on May 1, 2013. 
46

Accordingly, based on the foregoing evidence, the court finds that ACC’s “last of the labor 

[ ] performed,” 40 U.S.C. § 3133(b)(4), occurred on a date within the one-year limitations period.

2. Was Backfilling Compensable Work under the Subcontract?

Next, Colonial argues that, even if backfilling occurred on May 1, 2013, ACC’s Miller Act 

claim is still untimely. According to Colonial, because Change Order BJ does not expressly

identify “backfilling” as a covered task, see Pl.’s Ex. 123 at 4, it was not compensable work under 

the Subcontract. Therefore, the day on which backfilling occurred under Change Order BJ, May 

1, 2013, cannot qualify as the “last of the labor [ ] performed” for purposes of the one-year 

limitations period. 

By pressing this argument, Colonial demands a literal reading of Change Order BJ that 

defies common sense. Change Order BJ provides that:

The contractor shall supply the labor, equipment, and materials to 

trim the concrete and the rebar from the east side grade beam in 

accordance with the drawings that were provided with the RFP. The 

top of the grade beam should be saw cut to create a clean cut line 

across the top. The rebar will be removed to a depth of 1” below the 

concrete surface. Non-shrink epoxy mortar will be used to repair 

the concrete surface

The grade beam modification will only occur in the areas where the 

grass meets the grade beam. The grade beam will not be modified 

in the areas where the roadway and sidewalk meet the grade beam.

Pl.’s Ex. 123 at 4. To be sure, the text of Change Order BJ does not expressly address backfilling. 

But common sense leads to the conclusion that, to complete Change Order BJ, ACC not only had 

to excavate the ground and cut the grade beam, but it also had to backfill the open hole. Surely, 

the USACE would not have accepted Change Order BJ as complete if ACC had walked away with

a gaping hole in the ground along the path of the grade beam, leaving the grade beam exposed. A 

common sense reading of Change Order BJ therefore supports the conclusion that it encompassed 
47

backfilling as compensable work. Cf. Keepseagle v. Perdue, 856 F.3d 1039, 1047 (D.C. Cir. 2017) 

(avoiding interpretation of settlement agreement that “would yield absurd results” (citing United 

States v. Winstar Corp., 518 U.S. 839, 907 (1996)). 

In further support of its position, Colonial points to Change Order AY, which does 

expressly refer to backfilling. But Change Order AY does not help Colonial’s cause. Change

Order AY, issued on the same date as Change Order BJ, pertains to electrical wiring for the west 

side. See Pl.’s Ex. 123 at 3–4. Change Order AY requires the contractor to “provide all labor, 

materials, and equipment to install the electrical wiring and conduit on the west side of 17th Street” 

and further provides that “[t]he existing soil (minus organics and large rocks), will be used to 

backfill the excavation.” See id. at 3. As the quoted text demonstrates, the USACE expressly 

provided for backfilling in the context of Change Order AY because such backfilling was to be 

performed in a specific manner using specific materials. By contrast, the absence of a similar 

instruction in Change Order BJ does not mean that backfilling of the excavated east side grade 

beam was outside the scope of the modification; rather, it suggests only that the USACE did not 

require the contractor to use any particular material for that purpose. Colonial’s reliance on 

Change Order AY is therefore unpersuasive. 

Finally, it is notable that, after Hirani’s termination, Akima received compensation for 

backfilling as part of its work to complete cutting the east side grade beam. See Pl.’s Ex. 171 at 4, 

8 (invoice from Akima subcontractor, Asher Construction, Inc., describing work of excavating

along the grade beam, coating the beam, “and backfill”). As Mr. Vogt testified, Akima’s scope of 

work under the Akima Subcontract did not exceed ACC’s work under its Subcontract with Hirani.

See Day 4 A.M. at 77:13–77:16. Akima’s receipt of compensation for backfilling the excavated 
48

east side grade beam area is further proof that backfilling was a compensable activity under Change 

Order BJ.

* * *

In view of the foregoing, the court concludes that ACC has satisfactorily shown by a 

preponderance of the evidence that it performed compensable work under the Subcontract within 

one year of filing its Miller Act claim on April 29, 2014. Furthermore, ACC has established that 

(1) it “furnished labor or material in carrying out work provided for in a contract for which payment 

bond is furnished under section 3131” and (2) it was not “paid in full within 90 days.” 40 U.S.C. 

3133. The court therefore will enter judgment in favor of ACC on its Miller Act claim. 

B. Breach of Contract Claim

Count I of the Second Amended Complaint seeks relief against Hirani for breach of 

contract. ACC asserts that Hirani breached the Subcontract by: (a) failing to pay ACC for work 

performed after November 21, 2012, through May 1, 2013; (b) failing to provide constant Project 

on-site supervision; (c) failing to update the baseline schedule per contract requirements so as to 

demonstrate the effect of the government’s responsibility for causes of delay; and/or (d) causing 

the Prime Contract with the USACE to be terminated on April 26, 2013, due to Hirani’s failure to 

provide updated schedules and failure to pay ACC for work performed for the last five months of 

its subcontract performance. See Pl.’s FOF & COL at 64.

For essentially the same reasons already discussed, the court finds in favor of ACC on its 

breach of contract cause of action against Hirani. Put simply, Hirani breached the Subcontract by 

refusing to pay ACC for the work that it performed, see supra ¶ 81, and Hirani had no valid 

justification for doing so. The court therefore will enter judgment in favor of ACC on its breach 

of contract claim against Hirani. 
49

REMEDIES

Having determined the outcome of ACC’s claims and Colonial’s counterclaims, the court 

moves on to determine an appropriate damages award.

I. QUANTUM MERUIT DAMAGES

ACC asserts that its quantum meruit damages total is $2,172,285.30, as summarized below. 

See Pl.’s Ex. 169.10

Subcontractors $786,069.82

Rented Equipment $138,135.34

Materials $605,752.90

On-site ACC Field Labor $1,024,019.23

USACE Region II Ownership Equipment Rates $540,250.12

Ed Hollander Supervision for 102 weeks $306,000

35% Gross Markup Margin $1,190,079.59

Loss of Fencing Salvage Value $43,046.95

Janeiro’s Stone Shop Drawings $53,975.00

Credit 

($2,515,043.65)

TOTAL

$2,172,285.30

Defendants raise a host of objections to this damages calculation, to which the court now turns. 

A. Equitable Adjustment Under the Federal Acquisition Regulations

The court first considers Defendants’ assertion that ACC is barred from recovering more 

than the original price of the Subcontract because ACC provided Hirani no notice of any request 

for an equitable adjustment within 30 days of receipt of any change order. See Defs.’ FOF & COL 

at 48. Under what is known as the “Changes Clause,” federal regulations provide that a 

“[c]ontractor must assert its right to an adjustment under this clause within 30 days from the date 

of receipt of the written [change] order.” 48 C.F.R. § 52.243-1; see also Subcontract 4.1 (stating 

 10 As ACC concedes, see Pl.’s Rebuttal at 32–33 ¶¶ 108-14, Defendants cannot be liable for any costs incurred prior 

to the April 4, 2011, formation of the Subcontract. Some of the invoices and checks included in Plaintiff’s Exs. 32, 

33, and 34, however, predate the Subcontract. Although ACC agrees that such costs are not recoverable, it is not clear 

to the court whether they are part of the damages computation. Accordingly, ACC will have to sort through these 

exhibits to exclude those non-recoverable items and provide the court with updated damages summaries.
50

that the “subcontractor acknowledges and agrees that it shall make no claim for extra or additional 

compensation on account of any such work,” unless authorized in writing by Hirani). Because 

ACC did not comply with the Changes Clause, Defendants maintain, ACC cannot recover costs 

associated with any of the change orders. The court rejects this argument for two reasons.

First, even if the Changes Clause is incorporated into the Subcontract11—ACC does not 

contend otherwise—the Clause on its face does not apply as between a prime contractor and 

subcontractor. The Clause provides that a “Contractor” must assert its right of adjustment within 

30 days after receipt of a change order or other written notice by “submitting to the Contracting 

Officer a written statement describing the general nature and amount of proposal, unless this period 

is extended by the Government.” 48 C.F.R. § 52.243-4(e). The references in the regulation to 

“Contractor,” “Contracting Officer,” and “Government” make clear that the Changes Clause 

concerns a change to the prime contract, that is, the agreement the between the prime contractor 

and the United States. It does not impose any notice requirements on a subcontractor of the prime 

contractor. 

The very case that Defendants rely upon, U.S. ex rel. Sequoia Electric, LLC v. Guarantee 

Co. of N.A., Case No. 2:14-cv-2045 JCM (VCF), 2018 WL 1320042 (D. Nev. March 14, 2018), is 

consistent with this interpretation. There, the court held the subcontractor could not obtain an 

equitable adjustment because it had failed to make a timely request to the prime contractor within 

10 days, as required under the subcontract. Id. at *3. The court observed that the 10-day period 

was included in the subcontract to allow enough time for the prime contractor to submit its right 

of adjustment to the government within 30 days to the government, as required under the Changes 

Clause. See id. at *3 & n.2; see also U.S. ex rel. Duncan Pipeline, Inc. v. Walbridge Aldinger Co., 

 11 The court makes no legal determination as to whether the Subcontract incorporates the Changes Clauses. 
51

No. CV411-092, 2013 WL 1338392, at *12–13 (S.D. Ga. Mar. 29, 2013) (similarly interpreting a 

14-day notice obligation contained in a subcontract “so that [the prime contractor] could then 

satisfy any obligations it may have had with the Corps”); cf. Conner Bros. Const. Co. v. United 

States, 65 Fed. Cl. 657, 670 (2005) (“The spirit and purpose of an equitable adjustment, such as 

that sought by plaintiff here, is to benefit the contractor and make it whole for changes ordered by 

the government.”). Thus, Sequoia Electric’s discussion of the subcontractor’s obligations refers 

only to the notice requirement of the subcontract, not the Changes Clause. Defendants cite no 

authority for the proposition that the Changes Clause extends to a subcontractor like ACC. 

Second, even if the Changes Clause applies as between Hirani and ACC, Defendants have 

shown no prejudice from the purported absence of notice. Although the regulation contains a time 

limit for providing notice, “[w]ritten notice as to constructive changes must be supplied by the 

contractor before such time that the Government would suffer if not apprised of the facts.” K-Con 

Bldg. Sys., Inc. v. United States, 100 Fed. Cl. 8, 30 (2011) (internal quotation marks and citation 

omitted). Thus, “[i]f the contracting officials have knowledge of the facts or problems that form 

the basis of a claim and are able to perform necessary fact-finding and decisionmaking, the 

Government is not prejudiced by the contractor’s failure to submit a precise claim at the time a 

constructive change occurs.” Id. (internal quotation marks and citation omitted). Here, Defendants 

do not dispute (nor could they) that Hirani was on notice of the various change orders issued by 

the USACE. Moreover, as to unanticipated site conditions or design defects, Hirani had actual 

knowledge of them because Ms. Stephen, as Hirani’s representative, was present on the site every 

day. Hirani also received constructive notice of unexpected developments through, among other 

records, the QCRs, correspondence from Ed Hollander, and three-week look-ahead schedules. See 

Pl.’s Rebuttal ¶¶ 120–126 (listing examples of such records). Thus, to the extent Defendants now 
52

claim that they suffered prejudice from a purported lack of notice because it precluded them from

seeking an equitable adjustment from the USACE, see Defs.’ FOF & COL at 48, that assertion 

simply is not supported by the record. 

B. Markup on Direct Expenses 

A substantial portion of the damages that ACC seeks—$1,190,079.59—consists of 

“[r]easonable gross markup of ACC’s performance throughout the Project from April 2011 

through May 1, 2013[.]” Pl.’s FOF & COL at 59 ¶ 262. Ms. Stephen testified that, when ACC 

submitted its bid to Hirani, it included a 35% markup of its direct costs, a percentage that she 

described was “not untypical” within the civil construction industry in the Washington, D.C., area. 

See Day 2 PM at 85:8–86:1. Defendants object to the 35% markup, asserting that Ms. Stephen’s

testimony was not sufficient to support that percentage as an industry norm. Defs.’ Rebuttal 

¶¶ 261–62. 

The court finds that the 35% markup as a component of Plaintiff’s damages calculation is 

reasonable and consistent with the industry standard in this locality. To be certain, evidence that 

the 35% markup was customary came largely from Ms. Stephen. But her testimony was sufficient 

to sustain Plaintiff’s burden for several reasons. First, the court accepted Ms. Stephen’s testimony 

not only as a percipient witness, but also as an expert in cost accounting in the heavy and highway 

civil construction and found her to be credible. See Findings of Fact, supra, ¶¶ 123–24, 127–28. 

Second, Ms. Stephen’s testimony concerning the reasonableness of the 35% was based on her 

experience in the industry, including her work as a consultant for other companies which gave her 

access to their books and records. See Day 2 PM at 86:1–86:22. That experience allowed 

Ms. Stephen to testify credibly, and with actual knowledge, that others in the industry charged a 

higher markup than ACC. See id. Third, Ms. Stephen’s testimony was corroborated in part by 
53

independent data from an industry publication. During her testimony, Ms. Stephen referenced the 

industry publication RS Means Site Work & Landscape Cost Data, see Ex. Pl.’s Ex. 7, which

reported an “Average Fixed Overhead” cost in the industry of 16.3% during 2010, see id. at 9. 

That average is in line with the 17.5% overhead figure that ACC used when it bid the Project. 

Finally, Ms. Stephen’s expert opinion concerning the reasonableness of the 35% was not rebutted 

by any contrary evidence. 

For these reasons, ACC provided satisfactory proof justifying a 35% markup of recoverable 

direct expenses. 

C. Equipment Standby Expenses

ACC seeks $138,135.34 in damages for costs related to its idle equipment at the Project 

site. See Pl.’s Ex. 36. According to ACC, that figure represents “the standby costs of having its 

owned equipment idling at the site as part of the reasonable value of ACC’s owned equipment 

furnished in connection with the Project.” Pl.’s Rebuttal ¶ 140. That figure does not represent, 

ACC says, “rental or use value of the equipment, which represents opportunities to create profits 

by using the equipment left idling.” Id. Defendants assert that standby equipment expenses are 

not available under the Miller Act. See Defs.’ FOF & COL at 49–51. 

The parties agree that the D.C. Circuit has not addressed whether idling or standby time 

for owned equipment is recoverable under the Miller Act. So, both parties cite various out-ofcircuit authorities to support their respective positions, but none provides a clear answer. 

Defendants, for instance, rely on a host of cases that stand for the proposition that the rental value 

of a contractor’s equipment is not recoverable under the Miller Act during periods of delay. See, 

e.g., U.S. ex rel. T.M.S. Mech. Contractors, Inc. v. Millers Mut. Fire Ins. Co. of Tex., 942 F.2d 

946, 952 (5th Cir. 1991); U.S. ex rel Pertun Const. Co. v. Harvesters Grp., Inc., 918 F.2d 915, 919 
54

(11th Cir. 1990); U.S. ex rel. Edward E. Morgan Co. v. Md. Cas. Co., 147 F.2d 423–25 (5th Cir. 

1945); cf. U.S. ex rel. E. Gulf, Inc. v. Metzger Towing, Inc., 910 F.2d 775, 780-81 (11th Cir. 1991)

(declining to decide whether “standby time” qualified as “labor or material” under the Miller Act

but denying request for compensation as not “justly due”). ACC, on the other hand, relies 

primarily on a 1972 case from the Middle District of Tennessee, in which the court stated that 

“[t]he fair rental value of equipment used on the project is covered by the Miller Act payment bond 

even though the equipment may be idle at times during the period of the lease.” See U.S. ex rel. E 

& R Const. Co. v. Guy H. James Const. Co., 390 F. Supp. 1193, 1245 (M.D. Tenn. 1972). These 

cases are not on point, however, because ACC seeks not rental value, but the standby costs of its 

own equipment for all purposes. ACC makes no distinction as to the reason for a piece of 

equipment’s non-use, whether it remained idle because of project delays or because of a lack of 

need on a given day. See Pl.’s Ex. 36 (calculating value of standby costs for each piece of 

equipment for the days each piece of equipment was on the Project site). The cited cases do not 

address whether such costs are recoverable under the Miller Act. 

The court thus returns to first principles. The Miller Act allows a contractor who 

“furnish[es] labor or material in carrying out work provided for in a contract” to sue on a payment 

bond. 40 U.S.C. §3133(b)(a). “[T]he language of the statute, interpreted in light of its protective 

purpose, provides the analytical key to determining whether the supplier can recover under the 

Miller Act.” T.M.S. Mech. Contractors, 942 F.2d at 949. Viewed through this lens, it is apparent 

that standby time cannot be viewed as an indivisible whole. Consider two scenarios. In the first 

a contractor brings a piece of equipment to the work site and uses it over a period of weeks but not 

on each day during those weeks. In the second, the contractor brings that same piece of equipment 

to the site, but it remains idle for 60 days before it is used. In the former case, the equipment 
55

reasonably can be treated as “furnished” “in carrying out work” even on those days it is in nonuse. After all, the contractor cannot reasonably be expected to remove equipment from the site for 

every period of idle time between uses. The same does not hold true for the second scenario, 

however. If a contractor brings a piece of equipment to the job site and it sits unused for two 

months, absent some reasonable explanation for its non-use during such an extended period, the 

contractor cannot be said to have “furnished” the equipment “in carrying out work.” The 

equipment cost is compensable in the first case, but not the second.

The challenge the court faces here is that, in calculating costs for standby time, ACC has 

not distinguished between these two scenarios. It seeks, for instance, the standby costs for a 

hydraulic breaker, which it brought to the site on April 11, 2011, but used for the very first time 

on March 6 of the following year, and intermittently thereafter. See Ex. 36 at 1–10. Similarly, 

ACC seeks full standby costs for a “C12 Trailer” brought to the site on April 11, 2011, yet used 

only six times during the entire life of the project. Id. Likewise, ACC asks to be compensated for 

a “Cat 325/Rev Drill” brought to the site on December 27, 2011, used for six days in January 2012, 

but only once more for the remainder of the project. Id. at 4–10. Not all equipment was used so 

infrequently, however. Take the “Cat 236.” It arrived at the site on December 11, 2017, and was 

used regularly until the end of the job, though not every day. Id. at 1–10. The same is generally 

true of the “Cat 430,” though ACC did not use it for nearly six weeks after it first arrived and for 

multiple extended periods of time thereafter. Id. 

ACC’s indiscriminate demand for all standby costs cannot be sustained under the Miller 

Act. A plaintiff seeking quantum meruit as a measure of damages “has the burden of showing 

facts and circumstances sufficient to justify the inference of an implied promise to pay for the 

services or materials in question and of proving the amount and value thereof to a reasonable 
56

degree of certainty or by a preponderance of the evidence.” 66 Am. Jur. 2d Restitution and Implied 

Contracts § 87 (2d ed.) (2018) (footnotes omitted). “Reasonable certainty” in this context 

“embraces a rough calculation that is not too speculative, vague or contingent upon some unknown 

factor.” USA Mach. Corp. v. CSC Ltd., 184 F.3d 257, 265 (3d Cir. 1999) (internal quotation marks 

and citation omitted); see also U.S. ex rel. Maris Equip. Co. v. Morganti, Inc., 163 F. Supp. 2d 

174, 188 (E.D.N.Y. 2001) (stating in a Miller Act case that “quantum meruit damages must be 

based upon a definite and logical connection between what is proven and the damages sought to 

be recovered and cannot be speculative”) (internal quotation marks and citation omitted). 

Applying these principles here, the court finds that ACC is entitled to payment for some, 

but not all, of the equipment that it furnished. With respect to pieces of equipment that were 

present at the site and used with regularity, awarding the costs of standby time is consistent with 

the text and purposes of the Miller Act. The same cannot be said, however, of equipment that 

idled at the site for extended periods of time without any explanation (e.g., the hydraulic breaker). 

At most, ACC offered evidence that it decided to keep equipment on site “in case [ACC] need[ed] 

it.” Day 3 A.M. Trial Tr. 112:8–23. Such proof is plainly insufficient to sustain ACC’s burden. 

The court has reviewed the summary chart supporting ACC’s demand for equipment 

standby expenses, see Ex. 36, and attempted to distinguish between the time that is recoverable 

from that which is not, based on the foregoing principles. A summary of standby costs that the 

court deems recoverable is reflected in the following chart. ACC is entitled to $38,897.61 for 

standby expenses. 
57

Summary of Recoverable Equipment Standby Expenses

Equipment Compensable Days Deducted for 

Unexplained NonUse

Total Deducted*

(*Each day is 

counted at 8 

hours, except for 

diesel trucks 

counted at 16 

hours per day)

Total Award

Cat 303 Yes 21 days

(Aug. 11, 2011 

through Aug. 31, 

2011)

$418.32 (21 days 

x $2.49/per hr)

$6,749.15

Cat 430 Yes 122 days (April 11, 

2011 through Jun 7, 

2011; Aug. 23, 

2011 through Sept. 

25, 2011; Nov. 12, 

2011 through Dec. 

11, 2011)

$6,178.08 (122 

days x $6.33/hr)

$16,633.66

Hydraulic Breaker No $13,183.52 $0

Cat 299 Yes 34 days (Mar. 28, 

2013 through Apr. 

30, 2013) 

$603.84 (34 days 

x 2.22/hr)

$1,014.54

Cat 236 Yes 46 days (Nov. 22, 

2012 through Jan. 

6, 2013)

$842.72 (46 days 

x $2.29/hr)

$4,272.57

Cat 325/Rev Drill No $50,181 $0

C12 Trailer No $12,901.68 $0

Subair Compressor No $1,179.14 $0

Pick Up Trucks –

Gas

No days on standby $0

Pick Up Trucks –

Diesel

Yes 47 days (Oct. 15, 

2011 through Oct. 

31, 2011; Nov. 12, 

2011 through Dec. 

11, 2011)

$1,331.04 (47 

days x $1.77/hr)

$9,244.71

Generator Yes 0 days $0 $982.98

Total $86,819.34 $38,897.61
58

D. Ed Hollander’s Salary

ACC seeks $306,000 as compensation for Ed Hollander’s work as project manager during 

the life of the Project—all 102 weeks. See Pl.’s Ex. 169. In Defendants’ view, ACC cannot 

recover for Hollander’s time because Hollander did not perform the type of labor that is 

recoverable under the Miller Act. See Def.’s FOF & COL at 51–53. Defendants also challenge 

the weekly rate of $3,000 that Ms. Stephen used to calculate Hollander’s salary. Id. at 53. 

Not all work done in connection with a construction project is compensable under the 

Miller Act. Courts agree that the term “labor” under the Miller Act is intended to encompass only 

physical or manual labor. E.g., United States ex rel. Shannon v. Fed. Ins. Co., 251 Fed. App’x. 

269, 272–73 (5th Cir. 2007); U.S. ex rel. Barber-Colman Co. v. U.S. Fid. & Guar. Co., No. 93-

1665, 1994 WL 108502, at *3 (4th Cir. Mar. 31, 1994); U.S. ex rel. Constructors, Inc. v. Gulf Ins. 

Co., 313 F. Supp. 2d 593, 597 (E.D. Va. 2004); U.S. ex rel. Big-D Constr. Corp. v. Rafter H 

Constr., L.L.C., Case No. 16-cv-00115, 2017 WL 9292187, at *5 (D. Wyo. Feb. 14, 2017). 

Although the D.C. Circuit has not addressed whether on-site managerial and administrative work 

of the type done by Hollander is compensable under the Miller Act, other circuit courts have held 

that “the on-site supervisory work of a project manager falls within the purview of the Miller Act 

if such a superintendent did some physical labor at the job site.” U.S. ex rel. Olson v. W.H. Cates 

Constr. Co., 972 F.2d 987, 991 (8th Cir. 1992) (emphasis added); accord Fed. Ins. Co., 251 Fed. 

App’x. at 273 (citing Olson); Barber-Colman Co., 1994 WL 108502, at *3. Thus, “[p]aying 

invoices, reviewing proposals, and supervising hiring are clerical or administrative tasks which, 

even if performed at the job site, do not involve physical toil or manual work necessary to bring 

them within the scope of the Miller Act.” Constructors, Inc., 313 F. Supp. 2d at 597; accord BigD Constr. Corp., 2017 WL 9292187, at *5 (quoting Constructors, Inc., 313 F. Supp. 2d at 97). 
59

In this case, ACC did not muster sufficient evidence to establish that Hollander’s time 

constituted “labor” under the Miller Act. Hollander was the President of ACC and an engineer by 

training. Trial Tr. Day 1 A.M. Session at 64:18–65:18. He was a daily presence at the worksite, 

see Pl.’s Ex. 31, and he wore many hats. According to Ms. Stephen, Hollander functioned as 

project manager, superintendent, and estimator for ACC. Day 3 A.M. Tr. at 101:19–22. He had 

a work space in the on-site trailer, Day 1 A.M. Tr. at 61:15-18, and his specific tasks included 

drafting the daily reports, writing letters, and preparing scheduling information, id. at 24:11–15; 

63:9–64:4; Day 3 A.M. Tr. at 45:10-15. On the manual labor side of the ledger, Mr. Janeiro 

described Hollander as a “unique engineer” because “he worked with his hands in the field.” Day 3 

A.M. Tr. at 11:15-18. But other than that limited testimony, which is not even specific to the 

Project, ACC offered no evidence that Hollander engaged in manual labor. Moreover, even if 

Mr. Janeiro’s testimony applied to the Project, ACC offers no evidence establishing the percentage 

of time Hollander devoted to physical work in the field or the average number of hours per day 

that he engaged in such work. The court therefore has no reasonable basis to determine what share, 

if any, of the over $300,000 ACC seeks for Hollander’s time constitutes compensable “labor” 

under the Miller Act. To award any percentage of that amount would require the court to speculate. 

And that it cannot do. See USA Machinery Corp., 184 F.3d at 265. Accordingly, the court finds 

that ACC is not entitled to recover any amount for Hollander’s time during the life of the project. 

E. Salvage Value of Fencing Material 

ACC seeks to collect $43,046.95 for the salvage value of fencing material that was left at 

the work site but never recovered. Pl.’s Ex. 169. According to ACC, the Subcontract “took into 

consideration the fact that after the construction was completed, the eight-foot stockade fence 

material would be returned to ACC,” and ACC negotiated the price of the Subcontract in part “to 
60

include the cost of the stockade fence and the labor to install it, less the salvage value.” Pl.’s 

Rebuttal at 48–49. ACC, however, cites no evidence for that assertion. The only agreement about 

fencing reflected in the Subcontract is that ACC agreed it would “[f]urnish & install all fencing 

(site, silt, tree protection, temporary) and relocate as per the drawings and specifications with 

appropriate signage.” Subcontract, Schedule B, ¶ 11. ACC bid $110,000 for “Site Fencing 

Installation/Removal Work,” see id. at 1, and Hirani agreed to pay ACC an upfront lump sum of 

$125,000 for initial project staging costs, including putting up fencing, that ACC would pay back 

to Hirani over time, id. at 3. Nothing in the Subcontract, however, states that ACC would take the 

fencing at the end of the job, or that ACC discounted the fencing component of its bid to account 

for post-job salvage value. Therefore, there is simply no evidence that ACC “furnished” fencing 

material to the Project under terms that would entitle ACC to recover $43,046.95 in salvage value 

under the Miller Act. 

F. Reasonable Value of Janeiro’s Work

ACC seeks to recover $53,975.00 for services rendered by Janeiro, including stone 

measurements, shop drawing, fabrication tickets, and stone cladding mockups. See Pl.’s Ex. 169; 

Pl.’s FOF & COL at 73 ¶ 41; Pl.’s Rebuttal at 47–48 ¶¶ 160–63. The court concludes, however,

that ACC cannot recover costs incurred by Janeiro because ACC has neither paid Janeiro nor 

settled Janeiro’s claim.

Neither party has cited a case that addresses whether a subcontractor, like ACC, can seek 

to recover on a Miller Act payment bond amounts due and owing to a “sub-subcontractor,” like 

Janeiro. ACC relies primarily on U.S. Industries v. Blake Construction Co., 671 F.2d 539 (D.C. 

Cir. 1982). See Pl.’s Rebuttal at 48. There, the D.C. Circuit held the district court had committed 

error when it disallowed a contractor from pursuing as part of its claim against the prime contractor 
61

the claims of its subcontractors. See Blake Constr., 671 F.2d at 550 (“It is common practice for a 

contractor to present claims of its subcontractors in a suit against the other party to the prime 

contract.”). The court rooted its decision in basic principles of contract law. The contractor could 

seek to recover the subcontractors’ costs, the court explained, because the subcontractors could 

not directly sue the prime contractor. In other words, there was “no privity” between the 

subcontractor and the prime contractor. See id. at 550–51 (citing United States v. Blair, 321 U.S. 

730, 737–38 (1944) (holding that a subcontractor cannot sue the government directly on a 

government contract because of the absence of an agreement between the government and

subcontractor, but the prime contractor may sue to recover a subcontractors’ costs)). Thus, the 

court concluded, “[a]s long as [the contractor] was required to remit to [the subcontractors] any 

amount it recovered on their behalf from [the prime contractor]—as its contracts with those two 

firms required it to do— [the contractor] was entitled to assert claims on [the subcontractors’] 

behalf.” Id. at 551. 

The holding of Blake Construction, at first blush, arguably supports ACC’s position that it 

can seek from Defendants the costs incurred by Janeiro. But not so fast. The D.C. Circuit was 

careful to distinguish the situation in Blake Construction from a Miller Act claim. The district 

court had disallowed the contractor to assert the subcontractors’ claims because of a concern that 

allowing the contractor to do so would provide the subcontractor with an end run around the 

requirements of the Miller Act (the project in that case was the building of an army hospital, and 

the prime contractor was a party to the government contract). See id. The D.C. Circuit rejected 

that reasoning. It explained: “The [district] court’s concern that permitting [the contractor] to 

assert the claims would circumvent the jurisdictional requirements of the Miller Act ignores the 

fact that this suit is not on the performance and payments bonds (to which the Miller Act relates), 
62

but for breach of the contract between [the contractor] and [the prime contractor].” Id. Stated 

differently, the district court’s concern might have been valid had the subcontractors’ claims been 

made under the Miller Act. After all, under the Miller Act, the subcontractors could have sought 

recovery from the surety directly. To allow the subcontractors to present their claims indirectly 

through the contractor would circumvent the Miller Act’s requirements. Of course, that is the very 

factual circumstance of this case. Nothing prevented Janeiro from seeking recourse directly from 

Colonial on the payment bond. For reasons not apparent on the record, it elected not to make a 

claim. ACC cannot now stand as a proxy for Janeiro on a claim that Janeiro, in effect, has forfeited. 

There is yet another critical distinction between this case and Blake Construction. In that 

case, the contractor had entered into separate agreements with its subcontractors promising that it 

would prosecute the subcontractors’ claims on their behalf and would compensate them for any 

amounts recovered. Id. at 44. Here, on the other hand, ACC presented no evidence that it has such 

an agreement with Janeiro. That fact distinction is legally consequential. In Morrison Knudsen 

Corp. v. Fireman’s Fund Insurance Co., the Tenth Circuit explained the general rule of 

government contracting that allows a prime contractor to recover against the government for the 

unpaid costs of its subcontractor, but only if the prime contractor has first settled with the 

subcontractor. 175 F.3d 1221, 1249–54 (10th Cir. 1999) (citing 48 C.F.R. § 49-108-1) (“Upon 

termination of a prime contract, the prime contractor and each subcontractor are responsible for 

the prompt settlement of the settlement proposals of their immediate subcontractors.”). That 

approach provides a mechanism to compensate a subcontractor upon termination of the prime 

contract, without running afoul of cost principles that do not allow compensation for future 

contingencies—an unsettled claim of a subcontractor is treated as a contingent cost. See id. at 

1252–53. In this case, because ACC did not settle Janeiro’s claim prior to seeking recovery from 
63

Defendants, Janeiro’s claim remains a contingent, unrecoverable cost. ACC’s demand for 

damages equal to the costs incurred by Janeiro is therefore denied. 

II. PREJUDGMENT INTEREST AND ATTORNEY’S FEES AND COSTS

In addition to quantum meruit damages, ACC seeks an award of prejudgment interest and 

an award of attorney’s fees and costs under the Miller Act. See Pl.’s FOF & COL at 74–75 ¶¶ 43–

46. Colonial opposes these awards. See Defs.’ Rebuttal at 46–48 ¶¶ 43–46. 

A. Prejudgment Interest

“The Miller Act provides a federal cause of action, and the scope of the remedy as well as 

the substance of the rights created thereby is a matter of federal not state law.” F.D. Rich Co. v. 

U. S. ex rel. Indus. Lumber Co., 417 U.S. 116, 127 (1974). The Miller Act does not contain an 

express provision authorizing the recovery of pre-judgment interest. See 40 U.S.C. § 3131, et seq. 

In the absence of such provision, the federal appellate courts, although recognizing that the 

question is one of federal law, have looked to state law for guidance. E.g., U.S. ex rel. LochridgePriest, Inc. v. Con-Real Support Grp., Inc., 950 F.2d 284, 289 (5th Cir. 1992); U.S. ex rel. C.J.C., 

Inc. v. W. States Mech. Contractors, Inc., 834 F.2d 1533, 1541–42 (10th Cir. 1987); U.S. ex rel.

Seminole Sheet Metal Co. v. SCI, Inc., 828 F.2d 671, 677–78 (11th Cir. 1987). This court does the 

same.

Under District of Columbia law, “[p]rejudgment interest operates in part to compensate 

prevailing plaintiffs for the loss of the use of money that was wrongfully withheld by the 

defendant.” Mazor v. Farrell, 186 A.3d 829, 832 (D.C. 2018). Because of its remedial nature, the 

D.C. Court of Appeals has stated that prejudgment interest should be awarded “absent some 

justification” for denying it. Washington Inv. Partners of Del., LLC v. Sec. House, K.S.C.C., 

28 A.3d 566, 581 (D.C. 2011) (internal quotation marks omitted). 
64

Prejudgment interest in the District of Columbia is a creature of statute. As applicable 

here, D.C. Code § 15-109 provides that a trial court may award prejudgment interest on an 

unliquidated debt “if necessary to fully compensate the plaintiff.” See also Gen. Ry. Signal Co. v. 

Washington Metro. Area Transit Auth., 875 F.2d 320, 328–29 (D.C. Cir. 1989) (“Section 15-109 

expressly refers only to ‘action[s] to recover for breach of contract,’ but it has been applied to a 

suit for accounting which, ‘although not framed as a breach of contract action, was based on a 

contractual relationship between the parties.’”) (quoting House of Wines v. Sumter, 510 A.2d 492, 

499 (D.C. 1986)).

12 The trial court has “broad discretion” to award prejudgment interest under 

this statute, District of Columbia v. Pierce Assoc., Inc., 527 A.2d 306, 310 (D.C. 1987), and the 

statute “should be generously construed so that the wronged party can be made whole.” Dist. 

Cablevision Ltd. P’ship v. Bassin, 828 A.2d 714, 732 (D.C. 2003) (quoting Riggs Nat’l Bank v. 

District of Columbia, 581 A.2d 1229, 1255 (D.C. 1990). These principles are consonant with the 

Supreme Court’s statement that “the Miller Act should receive a liberal construction to effectuate 

its protective purposes.” U.S. ex rel. Sherman v. Carter, 353 U.S. 210, 216 (1957).

The court finds that an award of prejudgment interest is appropriate here to make ACC 

whole. Hirani last paid ACC for work in December 2012. Hirani never compensated ACC for the 

work reflected in Payment Requisition No. 19, which covered work completed at the site between 

November 21, 2012, and February 20, 2013. See Pl.’s Ex. 141. ACC also never received payment 

on Payment Requisition No. 20, which reflected work done by ACC through March 24, 2013. See 

Pl.’s Ex. 157. An award of prejudgment interest is appropriate to compensate ACC for these and 

other unpaid amounts to make up for the lost time value of money. 

 12 By contrast, D.C. Code § 15-508 concerns awarding prejudgment interest in cases of liquidated damages. The 

D.C. Court of Appeals has held that debts resting on quantum meruit recovery are “by their very nature unliquidated” 

and therefore prejudgment interest is not available on such damages under section 15-508. See Mazor, 186 A.2d at 

833–34 (quoting Schwartz v. Swartz, 723 A.3d 841, 844 (D.C. 1998) (internal quotation marks omitted)). 
65

Neither party has addressed the appropriate rate of interest to be paid on a judgment. Courts 

confronted with the question under the Miller Act, once again, have looked to state law for an 

answer. E.g., N. Star Terminal & Stevedore Co. ex rel. v. Nugget Const. Inc., 126 F. App’x 348, 

351 (9th Cir. 2005); U.S. ex rel. Varco Pruden Bldgs. v. Reid & Gary Strickland Co., 161 F.3d 

915, 922 (5th Cir. 1998); Towerridge, Inc. v. T.A.O., Inc., 111 F.3d 758, 764 (10th Cir. 1997); U.S. 

ex rel. Yonker Const. Co. v. W. Contracting Corp., 935 F.2d 936, 941 (8th Cir. 1991). Under 

District of Columbia law, “when the rate of interest has not been specified in the contract, courts 

in this jurisdiction have without exception limited it to the statutory rate provided in D.C. Code 

§ 28-3302.” Pierce Assocs., 527 A.2d at 310. Here, the Subcontract specifies no rate of interest, 

therefore section 28-3302 applies. Under that statute, courts routinely award a 6% per annum rate 

under the statute’s first clause. See D.C. Code § 28-3302(a) (“The rate of interest in the District 

upon the loan or forbearance of money, goods, or things in action in the absence of expressed 

contract, is 6% per annum.”); Pierce Assocs., 527 A.2d at 310–11; Cobell ex rel. Cobell v. Jewell, 

260 F. Supp. 3d 1, 9 (D.D.C. 2017). This court will do the same. Accordingly, the court finds that 

a prejudgment interest award at the rate of 6% per annum will fairly compensate ACC for the delay 

in the receipt of payment. 

Finally, there remains the question of from what date should prejudgment interest accrue.

Once more, looking to District of Columbia law, section 15-109 affords courts “discretionary 

equitable power” to fix the effective date of accrual. See Gen. Ry. Signal Co., 875 F.2d at 328

(quoting Pierce Assocs., 527 A.2d at 310). Exercising such discretion here, the court looks to the 

Subcontract, which stipulates by when Hirani was required to pay ACC. Subcontract ¶ 3.2. 

Section 3.2 of the agreement provides (including the parties’ deletions and interlineations):

The Subcontractor shall accept the credit worthiness of the Owner, 

if the cause of the nonpayment relates to the obligation or 
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responsibilities of [Hirani] then the Subcontractor shall be entitled 

to receive payment for its work within 30 days of approval of the 

work. In any event, “Progress Payments” shall not become due and 

payable prior to the 30th of the following month or five (5) days 

after [Hirani] receives payment from the Owner on account of the 

Subcontractor’s work. 

The court finds this provision to be confusing. It is unclear whether the first sentence sets the 

payment date in this instance (“within 30 days of approval of the work”), or whether the second 

sentence that starts with “[i]n any event,” is controlling. The best the court can tell from the 

structure of the “Price and Payments” provision is that the parties contemplated that ACC would 

receive payment after the USACE approved the work and paid Hirani. Using that understanding

as a measure, and to simplify the prejudgment interest calculation, the court sets June 1, 2013—

30 days after the last day of compensable work ACC performed on the site—as the date on which 

prejudgment interest began to accrue. 

B. Attorney’s Fees and Costs

At last, the court arrives at ACC’s demand for attorney’s fees and costs. The Miller Act 

does not expressly authorize the award of attorney’s fees to a successful plaintiff. The Supreme 

Court, however, has filled the statutory void. It has held that whether attorney’s fees are available 

on a Miller Act claim is a matter of federal common law. See F.D. Rich, 417 U.S. at 127 (noting 

the lack of “any evidence of congressional intent to incorporate state law to govern such an 

important element of Miller Act litigation as liability for attorneys’ fees”). Thus, the “American

Rule” applies, see id. at 127–31, which provides that attorney’s fees “are not ordinarily recoverable 

in the absence of a statute or enforceable contract providing therefor,” Fleischmann Distilling 

Corp. v. Maier Brewing Co., 386 U.S. 714, 717 (1967). Consistent with this approach, multiple 

circuit courts have held that fees are available under the Miller Act when the relevant contract so 

provides. See GE Supply v. C & G Enters., Inc., 212 F.3d 14, 19 (1st Cir. 2000) (citing cases). 
67

Additionally, under the “bad faith” exception, the American Rule permits a court to award 

attorney’s fees when the losing party has “acted in bad faith, vexatiously, wantonly, or for 

oppressive reasons.” F.D. Rich, 417 U.S. at 129. Courts have recognized that the exception is 

applicable in Miller Act cases. See id.; accord Towerridge, 111 F.3d at 765 (collecting cases). 

ACC asserts that an attorney’s fees award is compelled both by contract and by 

Defendants’ bad faith conduct. The court disagrees. 

1. Contractual Obligation to Pay Attorney’s Fees

The Subcontract contains no attorney’s fees provision. ACC therefore points the court to 

a letter agreement between the company and Hirani dated April 4, 2011, the same day the parties 

entered into the Subcontract. Subcontract at 16. That agreement provides in relevant part that 

“Hirani agrees to indemnify and hold harmless [ACC] against any and all claims, suits, damages, 

liabilities, costs, and expenses, including attorney’s fees . . . arising out of the Project or

Subcontractor’s acceptance or performance of this Subcontract.” Id.

ACC’s reliance on this letter agreement suffers from two fatal problems. First, it is not in 

evidence. When Plaintiff presented its Exhibit 54, the court admitted only the pages comprising 

the actual Subcontract, and not any extraneous pages contained therein, including the letter 

agreement. See Day 1 A.M. Tr. at 68:23–70:5. The court invited ACC to lay the foundation as to 

these extraneous pages, but it never did so. See id. Therefore, the letter agreement is not evidence 

in this case. 

Second, even if it were evidence, the letter agreement does not have the legal effect ACC 

ascribes to it. Properly understood, the letter agreement is no more than an indemnification 

agreement as to third-party claims against ACC. It is not a fee-shifting provision as to claims 

between ACC and Hirani that might arise out of the Project. See Hensel Phelps, 861 F.3d at 275 
68

(requiring that there be “clear and unequivocal intent to include first-party claims . . . on the face 

of the instrument”); see also James G. Davis Constr. Corp. v. HRGM, 147 A.3d 332, 340–41 (D.C. 

2016). The letter agreement therefore provides no basis for an award of fees. 

2. Bad Faith

ACC’s fees demand based on bad faith likewise fails. ACC claims that Defendants acted 

in bad faith by not promptly paying ACC for the work it performed. As evidence, ACC points to 

the non-payment of Payment Requisition No. 19, even though the USACE had approved it and 

remitted money to Colonial. See Pl.’s FOF & COL at 74–75 ¶ 46. 

The D.C. Circuit has strictly construed the bad-faith exception to the American Rule. “Bad 

faith in conduct giving rise to the lawsuit may be found where ‘a party, confronted with a clear 

statutory or judicially-imposed duty towards another, is so recalcitrant in performing that duty that 

the injured party is forced to undertake otherwise unnecessary litigation to vindicate plain legal 

rights.’” Am. Hosp. Ass’n v. Sullivan, 938 F.2d 216, 220 (D.C. Cir. 1991) (citation omitted). 

Because the “underlying rationale of fee-shifting upon a showing of bad faith is punishment of the 

wrongdoer rather than compensation of the victim,” such an award is reserved “only when 

extraordinary circumstances or dominating reasons of fairness so demand.” Nepera Chem., Inc. 

v. Sea-Land Serv., Inc., 794 F.2d 688, 702 (D.C. Cir. 1986). A “finding of bad faith must be 

supported by clear and convincing evidence.” Ass’n of Am. Physicians & Surgeons, Inc. v. Clinton, 

187 F.3d 655, 660 (D.C. Cir. 1999) (citation and internal quotation marks omitted).

ACC comes nowhere close to satisfying these stringent standards. Although the court finds 

that ACC is entitled to be compensated for the work it performed, Defendants’ refusal to make 

such payment is not so extraordinary as to distinguish this matter from run-of-the-mill Miller Act 

disputes. ACC believed it was owed money for the work it had done; Defendants thought they 
69 

were relieved of their obligation to pay because ACC had failed to perform. Such disputes are 

commonplace in the construction business. Therefore, ACC is not entitled to attorney’s fees on 

the ground Defendants acted in bad faith. 

CONCLUSION

To summarize, the court finds that ACC has carried its burden of proof by a preponderance 

of the evidence as to its Miller Act claim against Colonial and its breach of contract claim against 

Hirani. Colonial, on the other hand, did not carry its burden of proof as to its counterclaims. 

To facilitate entry of a final judgment, no later than December 7, 2018, ACC shall submit 

to the court a revised damages calculation, including prejudgment interest, as to both its Miller Act 

and breach of contract claims that is consistent with these Findings of Fact and Conclusions of 

Law.13 Thereafter, no later than December 17, 2018, Defendants may lodge objections to ACC’s 

renewed calculation on grounds other than those already addressed by the court. Finally, ACC 

may file a reply by December 21, 2018. 

 

Dated: November 28, 2018 Amit P Mehta

 United States District Judge

 

13 ACC does not distinguish between the quantum meruit award it seeks from Colonial under the Miller Act and the 

damages it demands from Hirani for breach of contract. ACC’s submission shall distinguish between these two 

theories of compensation.