ARMED SERVICES BOARD OF CONTRACT APPEALS 

Appeal of -- ) 

) 

GSC Construction, Inc. ) 

) 

Under Contract No. W9126G-1 l-D-0061 ) 

APPEARANCE FOR THE APPELLANT: 

APPEARANCES FOR THE GOVERNMENT: 

ASBCA No. 59046 

James S. Delsordo, Esq. 

Argus Legal, LLC 

Manassas, VA 

Thomas H. Gourlay, Jr., Esq. 

Engineer Chief Trial Attorney 

Ronald J. Goodeyon, Esq. 

Jason R. Chester, Esq. 

Engineer Trial Attorneys 

U.S. Army Engineer District, Tulsa 

OPINION BY ADMINISTRATIVE JUDGE MCILMAIL 

ON THE GOVERNMENT'S MOTION FOR SUMMARY JUDGMENT 

The government contracted with appellant to construct a facility at Fort Sill, 

Oklahoma. Appellant seeks additional compensation for certain utilities work. The 

government moves for summary judgment. We deny the motion. 

STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION 

The following material facts are undisputed: 

1. On 15 September 2011, the Department of the Army (government) 

awarded GSC Construction, Inc. (appellant) Task Order 0001 pursuant to Contract 

No. W9126G-11-D-0061, an indefinite delivery, indefinite quantity contract (R4, tab 4(p) 

at 3377). 

2. The task order amount was $11,951,460 (R4, tab 4(p) at 3377). 

3. The task order provides that appellant would "[c]omplete the Design and 

Construction of the Central Issue Facility" (a warehouse) at Fort Sill, Oklahoma (R4, 

tab 4(p) at 3374, 3380, 3383). 
4. The Statement of Work (SOW)§ 6.4.6.1.(c) provides: 

Water mains are shown on the drawings at Appendix J .... 

The Infrastructure Contractor will provide the potable 

water service between the main line to the 5-foot line of 

the building. Provide potable water service from the 5-foot 

line to the facility and within the building.... The 

Government will provide primary or main water pipe 

distribution .... 

(R4, tab 4(p) at 3474) 

5. Section 6.4.6.1.(d) provides: 

The Infrastructure Contractor will design and construct the 

sanitary sewer service line between the sanitary sewer 

main to 5 feet from the building .... 

(R4, tab 4(p) at 3474) 

6. Section 6.3.1.5. provides "infrastructure drawings are provided as 'for 

information only' reference" (R4, tab 4(p) at 3472). 

7. Appendix EE, "Infrastructure Drawings," includes a drawing entitled 

"OVERALL PROJECT CONSTRUCTION ACCESS" (R4, tab 4(p) at 4090, 4093). 1 

Note 4, "WATER SUPPLY AND DISTRIBUTION," ofthe drawing states: 

MULTIPLE EXISTING WATER LINES WILL NEED 

TO BE REROUTED AS PART OF THIS PROJECT. 

THERE IS AN EXISTING 12" TRANSITE AND 24" 

CAST IRON WATER LINE RUNNING THRU THE 

FOOTPRINT OF THE NEW FACILITY. THE 12" LINE 

WILL BE REMOVED AND REROUTED AROUND 

THE SOUTH SIDE OF THE FACILITY. AN 8" LOOP 

WILL BE CONNECTED TO THIS LINE TO SERVE 

THE FACILITY WATER DEMANDS. THE EXISTING 

24" CAST IRON WATER LINE IS ABANDONED .... 

THE PORTION OF THIS LINE UNDER THE 

FOOTPRINT OF THE NEW FACILITY WILL BE 

REMOVED. AN EXISTING 24" WATER LINE UNDER 

1 Although the government points to pre-contract drawings, our drawing references 

are to the versions of those drawings that are appended to the contract. 

2 
THE NEW POV PARKING LOTS WILL ALSO NEED 

TO [BE] REMOVED. 

(R4, tab 4(p) at 4093) 

8. The Overall Project Construction Access drawing, at note 5, "SANITARY 

SEWER," states: 

THE NEW MAINS WILL BE 8" WITH THE NEW 

SERVICE LINES 6". THE NEW MAINS AND 

SERVICE LINES WILL HA VE PRE-CAST MANHOLES 

INSTALLED TO ALLOW FOR THE CONNECTION OF 

THE NEW FACILITY. 

(R4, tab 4(p) at 4093) 

9. Appendix EE includes a drawing entitled "UTILITY PLAN" (R4, tab 4(p) at 

4102). Note 2 of that drawing states that "CONTRACTOR WILL PROVIDE ANY 

SANITARY SEWER ELEMENT REQUIRED OUTSIDE 5' OF THE BUILDING 

INCLUDING A CLEANOUT OR MANHOLE AND CAP FOR FUTURE 

CONNECTION" (id.). 

10. The Utility Plan drawing, at note 4, states that "CONTRACTOR WILL 

PROVIDE THE PIV AND ROUTE FIRE WATERLINE (SEP ARA TE FROM THE 

DOMESTIC SUPPLY). CONTRACTOR WILL TAKE FIRE WATER LINE AND 

ROUTE WITHIN THE BUILDING." (R4, tab 4(p) at 4102) 

' 

11. On 19 February 2013, Bilateral Modification No. A00002 was issued, 

increasing the contract amount by $47,951, including for appellant to "provide and install 

approximately 150 LF of 8" Fire Protection water line, extending from the water line to a 

point 5 ft from the building" (R4, tab 4(s) at 4781).2 

12. On 14 March 2013, appellant presented to the contracting officer (CO) a 

certified claim for $826,355 for five categories of work that appellant categorized as 

"Natural Gas, Water Mains, Sanitary Sewer, Electrical, and Communications" (R4, tab 2 

at 1, 6). The water main component of the claim sought compensation for moving what 

appellant called "the 24" primary or main water line" from the 5-foot line to the building 

(R4, tab 2 at 4). 

2 Although the Rule 4 file copy of the modification indicates that appellant was 

required to sign the modification, the copy bears the signature of neither party. 

3 
13. On 18 June 2013, appellant revised its claim to add a request for a contract 

modification for "a (112) day time extension with extended overhead in the amount of 

$162,309.28" (R4, tab 3 at 2). 

14. In a 22 August 2013 final decision, the CO granted appellant's claim in part, 

and denied the claim in part (R4, tab 1 at 13). The CO found merit for $442,119.63 for 

"design and installation costs for the electrical .distribution line and the site 

communication line" (id.). The CO denied appellant's claim for $546,544.65 for "[t]he 

remaining site utilities (12" water line, relocate 24" water line, 10" fire loop, sanitary 

sewer line, and site lighting)" (id.). 

15. Appellant received the CO's decision on 30 August 2013, and timely filed this 

appeal on 26 November 2013. 

DECISION 

Introduction 

The government requests summary judgment in its favor on the entirety of the 

appeal. Summary judgment shall be granted ifthe movant shows that there is no genuine 

dispute as to any material fact and the movant is entitled to judgment as a matter of law. 

FED. R. CIV. P. 56(a); Mingus Constructors, Inc. v. United States, 812 F.2d 1387, 1390 

(Fed. Cir. 1987). Appellant seeks compensation for alleged government-directed changes 

to the contract work relating to four issues: (1) a sanitary sewer line; (2) a 12" water line; 

(3) the relocation ofa 24" water line; and (4) a 10" fire loop (amended compl. iii! 14, 26; 

R4, tab 1 at 13).3 The Board denies the motion. 

Sanitary Sewer Line 

With respect to the sanitary sewer line claim, the government does not respond to 

appellant's contention that the issue is "who was to provide the installation of the sanitary 

sewer main" (app. resp. at 12), and we take that silence as agreement. Consequently, we 

reject the government's reliance upon SOW§ 6.4.6.1.(d) (gov't mot. at 3, 10). That 

section did not require appellant to install a sewer main; it required appellant to "design 

3 It is unclear what, if anything, happened to the "Natural Gas" category that appellant 

referenced in its claim to the CO (SOF if 12). The CO denied five categories of 

claims amounting to $546,544.65 (none of which appears to relate to natural 

gas (SOF if 14)), and appellant's amended complaint seeks only that amount 

(amended compl. iii! 14, 26). In any event, the government's motion does not 

expressly address any natural gas claim; therefore, nor do we. Moreover, in a 

letter to the Board dated 20 August 2014, appellant confirmed that the appeal 

does not include any claim for compensation regarding "site lighting." 

4 
and construct the sanitary sewer service line between the sanitary sewer main to 5 feet 

from the building"4 (SOF ~ 5) (emphasis added). 

The government also relies upon the Overall Project Construction Access drawing, 

but that drawing, although it refers to "NEW [SEWER] MAINS," does not state that the 

contractor would install those mains (SOF ~ 8). 5 Although the Utility Plan drawing notes 

that the contractor "WILL PROVIDE ANY SANITARY SEWER ELEMENT 

REQUIRED OUTSIDE 5' OF THE BUILDING INCLUDING A CLEANOUT OR 

MANHOLE AND CAP FOR FUTURE CONNECTION" (SOF ~ 9), the government 

does not demonstrate that a sewer main is a "SANITARY SEWER ELEMENT" within 

the meaning of that note, particularly where the note specifies "A CLEANOUT OR 

MANHOLE AND CAP FOR FUTURE CONNECTION" as examples. Consequently, 

the government does not demonstrate that, with respect to the sanitary sewer line, there is 

no genuine dispute as to any material fact and that it is entitled to judgment as a matter of 

law. Accordingly, with respect to the sanitary sewer line claim, the motion is denied. 

Water Lines 

With respect to the water line claims (that is, the claims for the 12 11 water line, 24 11 

water line, and 1011 fire loop), the government does not demonstrate that there is no 

genuine dispute as to any material fact and that it is entitled to judgment as a matter of 

law. The government relies upon SOW§ 6.4.6.1.(c) (gov't mot. at 3, 9), which required 

appellant to "provide the potable water service between the main line to the 5-foot line of 

the building," but the same section required the government to "provide primary or main 

water pipe distribution" (SOF ~ 4). The government does not demonstrate which, if any, 

of the lines in question were lines within 5 feet of the building, as opposed to lines for 

"primary or main water pipe distribution." 

In addition, although the government relies upon drawing notes (gov't mot. at 

9-11 ), it cites no evidence that establishes which water lines at issue are those referenced 

in those notes. For example, the government recites a portion of note 4 of the Overall 

Project Construction Access drawing (gov't mot. at 3, ~ 5). That note references at least 

four water lines, two of which are 2411 lines: an abandoned 2411 cast iron line, and "AN 

EXISTING 2411 WATER LINE UNDER THE NEW POV PARKING LOTS WILL 

ALSO NEED TO [BE] REMOVED" (SOF ~ 7). However, the government recites only 

4 Appellant does not dispute that pursuant to Amendment No. 7, which replaced all 

references in § 6.4.6.1. to "Infrastructure Contractor" with "D/B Contractor" 

(R4, tab 4(h) at 3151 ), the term "Infrastructure Contractor" in § 6.4.6.1.( d) 

refers to appellant (app. resp. at 11). 

5 Although § 6 .3 .1. 5. provides that "infrastructure drawings are provided as 

'for information only' reference" (SOF ~ 6), we need not decide now 

what that language means. 

5 
the portion of the note referencing the cast iron line; it omits the "EXISTING 24" 

WATER LINE" language (gov't mot. at 3, if 5). Nevertheless, the government does not 

cite any evidence that establishes that the 24" line that is the subject of appellant's claim 

is the cast iron line referenced in the note. 

Even if the government had recited the omitted language, the note uses the term 

"24" WATER LINE," whereas appellant, tracking the language of section 6.4.6.1.( c) that 

imposes obligations upon the government, refers to "the 24 inch primary or main water 

line" (app. resp. at I I) (emphasis added). Indeed, the government does not reply directly 

to appellant's contention that, in its view, "[t]he problem is that [appellant] never 

received a compensation for relocating the 24 inch primary or main water line" (id.). 

The government also recites drawing note references to an "8" loop" and a "fire 

waterline" (gov't mot. at 3, ifif 5-6), but does not establish as undisputed fact that 

appellant's IO" fire loop claim concerns those features. Finally, the government does not 

explain whether "THE I2" LINE" referenced in a drawing note is the subject of 

appellant's I2" line claim; even so, that note states that "THE I2" LINE WILL BE 

REMOVED AND REROUTED" without stating who would be responsible for that work 

(SOF if 7). If the government's position is that the contract imposed upon appellant the 

obligation to perform all water line work within the site, its motion does not establish that 

obligation. 

In short, the government has not met the standard for summary judgment upon 

the water line claims. This may be a case in which evidence of trade practice and 

custom plays an important role in contract interpretation, to explain the meaning of 

technical terms in contract provisions and on contract drawings. See generally Metric 

Constructors, Inc. v. NASA, I69 F.3d 747, 752 (Fed. Cir. I999). The Board might also 

benefit from further, detailed evidence from those with personal knowledge of the 

contract work, or from stipulated facts. Because the government contends that it 

intended that the work would comply with the contract drawings (gov't reply at 1 ), we 

note that the subjective, unexpressed intent of one of the parties is irrelevant to contract 

interpretation. Elam Woods Constr. Co., ASBCA No. 52448, OI-I BCA if 3I,305 

at I54,547. 

6 
CONCLUSION 

The Board denies the motion for summary judgment. The parties shall confer and, 

within 21 days of the date of this decision, file a jointly-proposed schedule for further 

proceedings. 

Dated: 2 September 2014 

I concur 

~~E~ Administrative Judge 

Acting Chairman 

Armed Services Board 

of Contract Appeals 

Administrative Judge 

Armed Services Board 

of Contract Appeals 

I concur 

Administrative Judge 

Vice Chairman 

Armed Services Board 

of Contract Appeals 

I certify that the foregoing is a true copy of the Opinion and Decision of the 

Armed Services Board of Contract Appeals in ASBCA No. 59046, Appeal of GSC 

Construction, Inc., rendered in conformance with the Board's Charter. 

Dated: 

7 

JEFFREY D. GARDIN 

Recorder, Armed Services 

Board of Contract Appeals