### ARMED SERVICES BOARD OF CONTRACTAPPEALS Appeal of

-- ) ) 

### GSC Construction, Inc. ) ) 

### Under ContractNo. W9126G-1 l-D-0061 ) APPEARANCE FORTHE APPELLANT:

APPEARANCES FORTHE GOVERNMENT: ASBCA No. 59046

James S. Delsordo, Esq.

Argus Legal, LLC Manassas, VA Thomas H. Gourlay, Jr., 

### Esq.

Engineer ChiefTrial Attorney Ronald J. Goodeyon, Esq. Jason R. Chester, Esq.

Engineer Trial Attorneys U.S. Army Engineer District, Tulsa OPINION BYADMINISTRATIVE JUDGE MCILMAIL ONTHE GOVERNMENT'S MOTION FOR SUMMARYJUDGMENT 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 summaryjudgment. We deny the motion. STATEMENT OF FACTS (SOF) FORPURPOSES OF THE MOTION The following material facts are undisputed: 1. On 15 September 2011, the Department ofthe 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 orderprovides that appellant would "[c]omplete the Design and Construction ofthe Central Issue Facility" (awarehouse) at Fort Sill, Oklahoma (R4, tab 4(p) at 3374, 3380, 3383).4. The Statement ofWork (SOW)§ 6.4.6.1.(c) provides:
Water mains are shown onthe drawings at Appendix J

.... The Infrastructure Contractorwill provide the potable water service betweenthe main line to the 5-foot line of the building. Provide potablewater service from the 5-foot line to the facility and withinthe building.... The Government willprovide primary or main waterpipe distribution

.... (R4, tab 4(p) at 3474) 5. Section 6.4.6.1.(d) provides: The Infrastructure Contractorwill design and constructthe sanitary sewer service line betweenthe sanitary sewer mainto 5 feet from the building

.... (R4, tab 4(p) at 3474)
6. Section 6.3.1.5. provides "infrastructure drawings areprovided as 'for information only' reference" (R4, tab 4(p) at 3472).
7. AppendixEE, "Infrastructure Drawings," includes a drawing entitled "OVERALLPROJECT CONSTRUCTIONACCESS" (R4, tab 4(p) at 4090, 4093). 1 Note 4, "WATER SUPPLYAND DISTRIBUTION," ofthe drawing states: MULTIPLE EXISTING WATERLINES WILL NEED TO BEREROUTED AS PART OF THIS PROJECT. THERE IS AN EXISTING 12" TRANSITE AND 24" CAST IRON WATERLINE RUNNING THRU THE FOOTPRINT OF THE NEW FACILITY. THE 12" LINE WILL BE REMOVED AND REROUTED AROUND THE SOUTH SIDE OF THEFACILITY. AN 8" LOOP WILL BE CONNECTED TO THIS LINE TO SERVE THE FACILITY WATERDEMANDS. THE EXISTING 24" CAST IRON WATERLINE IS ABANDONED

.... THE PORTION OF THIS LINE UNDERTHE FOOTPRINT OF THE NEW FACILITY WILL BE REMOVED. AN EXISTING 24" WATERLINE UNDER

1 Althoughthe governmentpoints topre-contract drawings, our drawing references are tothe versions ofthose drawings that are appendedto the contract. 2

### THE NEWPOV PARKINGLOTS WILL ALSO NEED TO [BE] REMOVED. (R4, tab 4(p) at 4093) 8. The Overall Project ConstructionAccess drawing, at note 5, "SANITARY SEWER," states: THENEWMAINS WILL BE 8" WITH THE NEW SERVICE LINES 6". THE NEW MAINS AND SERVICE LINES WILL HAVE PRE-CAST MANHOLES INSTALLED TO ALLOW FORTHE CONNECTION OF THE NEWFACILITY. (R4, tab 4(p) at 4093) 9. Appendix EE includes a drawing entitled "UTILITYPLAN" (R4, tab 4(p) at 4102). Note 2 ofthat drawing states that "CONTRACTORWILL PROVIDE ANY SANITARY SEWERELEMENT REQUIRED OUTSIDE 5' OF THE BUILDING INCLUDING A CLEANOUT ORMANHOLE AND CAP FORFUTURE CONNECTION" (id.). 

### 10. The Utility Plan drawing, at note 4, states that "CONTRACTORWILL PROVIDE THE PIV AND ROUTE FIRE WATERLINE (SEPARA TE FROM THE DOMESTIC SUPPLY). CONTRACTOR WILL TAKE FIRE WATERLINE 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 of8" 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 ofwork that appellant categorized as "Natural Gas, Water Mains, Sanitary Sewer, Electrical, and Communications" (R4, tab 2 at 1, 6). The water main component ofthe 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 ofthe modification indicates that appellant was required to sign the modification, the copy bears the signature ofneitherparty. 313. 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 summaryjudgment in its favor on the entirety ofthe appeal. Summaryjudgment shall be granted ifthe movant shows thatthere is no genuine dispute as to any material fact and the movant is entitled tojudgment as a matter oflaw. FED. R. CIV. P. 56(a); 

### Mingus Constructors, Inc. v. UnitedStates, 812 F.2d 1387, 1390 (Fed. Cir. 1987). Appellant seeks compensation for alleged government-directed changes to the contract workrelating to four issues: (1) a sanitary sewer line; (2) a 12" water line; (3) the relocation ofa24" 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 SewerLine With respect to the sanitary sewer line claim, the government does not respond to appellant's contention that the issue is "whowas to provide the installation ofthe sanitary sewer main" (app. resp. at 12), and we take that silence as agreement. Consequently, we rejectthe 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 appellantto "design

3 Itis unclear what, ifanything, 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 ofwhich 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 compensationregarding "site lighting." 4and construct the sanitary sewer service line between the sanitarysewermain 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 contractorwould install those mains (SOF**~** 8).5 Although the Utility Plan drawing notes that the contractor "WILL PROVIDEANY SANITARY SEWERELEMENT REQUIRED OUTSIDE 5' OF THE BUILDING INCLUDING A CLEANOUT OR MANHOLE AND CAP FORFUTURE CONNECTION" (SOF**~** 9), the government does not demonstrate that a sewer main is a "SANITARY SEWERELEMENT"within the meaning ofthat note, particularly where the note specifies "A CLEANOUT OR MANHOLE AND CAP FORFUTURE 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 entitledtojudgment as a matter of law. Accordingly, with respect to the sanitary sewer line claim, the motion is denied. WaterLines With respect to the water line claims (that is, the claims for the 12 11 water line, 24 11 water line, and 10 11 fire loop), the government does not demonstrate that there is no genuine dispute as to any material fact and that it is entitled tojudgment as a matter of law. The governmentrelies 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," butthe same section required the governmentto "provide primary or main waterpipe distribution" (SOF**~** 4). The government does not demonstrate which, ifany, ofthe lines in question were lines within 5 feet ofthe building, as opposed to lines for "primary ormain waterpipe distribution."
In addition, although the governmentrelies upon drawing notes (gov'tmot. 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 ofnote 4 ofthe Overall Project Construction Access drawing (gov't mot. at 3,**~** 5). That note references at least four water lines, two ofwhich are 24 11 lines: an abandoned 24 11 cast iron line, and "AN EXISTING 24 11 WATERLINE UNDERTHE NEWPOVPARKINGLOTS WILL ALSONEED TO [BE] REMOVED" (SOF**~** 7). However, the government recites only

4 Appellant does not dispute thatpursuant to AmendmentNo. 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 'forinformation only' reference" (SOF**~** 6), we need not decide now what that language means. 5the portion ofthe note referencing the cast iron line; it omits the "EXISTING 24" WATERLINE" 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 ofappellant's claim is the cast iron line referenced in the note. Even ifthe governmenthad recited the omitted language, the note uses the term "24" WATERLINE," whereas appellant, tracking the language ofsection 6.4.6.1.(c) that imposes obligations upon the government, refers to "the 24 inchprimaryormain water line" (app. resp. at II) (emphasis added). Indeed, the government does not reply directly to appellant's contentionthat, in its view, "[t]heproblem is that [appellant] never received a compensation for relocating the 24 inchprimary 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). Ifthe government'sposition 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 governmenthas not metthe standard for summaryjudgmentupon the water line claims. This may be a case in which evidence oftrade practice and custom plays an importantrole in contract interpretation, to explainthe meaning of technical terms in contractprovisions and on contract drawings. See generally Metric Constructors, Inc. v. NASA, I69 F.3d 747, 752 (Fed. Cir. I999). The Boardmight also benefit from further, detailed evidence from those withpersonal knowledge ofthe contract work, or from stipulated facts. Because the government contends that it intended that the workwould comply with the contract drawings (gov'treply at 1 ), we note thatthe subjective, unexpressed intent ofone ofthe parties is irrelevant to contract interpretation. Elam Woods Constr. Co., ASBCANo. 52448, OI-I BCA

## if 3I,305 at I54,547.



### 6CONCLUSION The Board denies the motion for summaryjudgment. The parties shall confer and, within 21 days ofthe date ofthis decision, file ajointly-proposed schedule for further proceedings. Dated: 2 September 2014

I concur

# ~~E~ Administrative Judge Acting Chairman Armed Services Board ofContractAppeals Administrative Judge Armed Services Board ofContract Appeals

I concur

Administrative Judge Vice Chairman Armed Services Board ofContract Appeals

I certify that the foregoing is a true copy ofthe Opinion and Decision ofthe Armed Services Board ofContract Appeals in ASBCANo. 59046, Appeal ofGSC Construction, Inc., rendered in conformance with the Board's Charter. Dated:

7 JEFFREY D. GARDIN Recorder, Armed Services Board ofContract Appeals