HAWAIIAN DREDGING CONSTRUCTION COMPANY, INC,

Plaintiff,

v.

THE UNITED STATES,

Defendant

. No. 22-339 (Filed: February 14, 2023)

Michael Charles Zisa , Washington, DC, fo r Plaintiff.

Jimmy S. McBirney , Civil Division, United Stat es Department of Justic e, Washington, DC, for Defendant.

OPINION AND ORDER

LERNER, Judge

.

This is a case under the Cont ract Disputes Act (“CDA”), 41 U.S.C. § 7101, involving a firm fixed-price, design-build contract (the “Contract”) between Plaintiff Hawaiian Dredging and Construction Company (“HDCC”) and the United St ates Department of Transportation, acting through the Federal Highway Administration, Central Federal Lands Highway Division (“CFLHD” or the “Agency”). HDCC seeks review of the contracting officer’s final decision (“COFD”) denying its claim for an equitable adjus tment. It believes that it is entitled to an equitable adjustment to the Contract “to co mpensate HDCC for delays and increased costs incurred as a result of changes in th e work.” Am. Compl. ¶ 30, ECF No. 14.

The Government moves to dismiss the Ame nded Complaint under Ru le 12(b)(6) of the United States Court of Federal Claims (“RCFC”). It argues that Plaintiff fails to state a claim upon which relief may be granted because it “ bore the risk of incr eased costs” under the Contract, and “does not pl ausibly allege any direct ed or constructive cont ract changes, or that HDCC performed any uncompensated work outside the scope of its contractually mandated responsibilities.” Def.’s Mot. to Dismiss (“Def.’s Mot.”) at 1, ECF No. 15.

For the reasons set forth below, the Motion to Dismiss is GRANTED , and the case is DISMISSED without prejudice

. 

# I n the United States Court of Federal Claims2 I. Factual Background 1

A. The Project

HDCC was the general contractor for the La haina Bypass 1B-2 design-build construction project in Lahaina, Maui, Hawaii (the “Project” or “Lahaina Bypass”). Am. Compl. ¶ 4. This was a fixed-unit-price, design-build hi ghway project in the amount of $38,671,000. Id. The goal of the Project was to relocate the terminus of the Lahaina By pass to stop shoreline erosion, coastal hazards, and traffic cong estion on the Honoapiilani Highway. Id. at ¶ 6. The Project anticipated extending the existing road on both side s, constructing an overpass and box culverts, grading for drainage, and installing road and bridge safety features. Id. at ¶ 7. To do this work, HDCC alleges it required final Rights of Way (“ROWs”) from landowners near the highway, relocation of overhead utilities, and local, state, and federal permits. Id. at ¶¶ 8–9. On May 25, 2018, the Project opened to th e public, and by July 24, 2018, HDCC’s Contract work was substantially complete. Id. at ¶ 10.

B. The Solicitation and Competition

On October 1, 2015, CFLHD, in partners hip with the Hawaii Department of Transportation (“HDOT”), issued a Request for Qualifications (“RFQ” ) seeking potential contractors to participate in the pre-qualifica tion phase of the Project. Def.’s App. at 166–68, ECF No. 15-1. Plaintiff alleges that CFLHD “represented that it would acquire the necessary ROWs prior to issuance of the [notice to proceed ].” Pl.’s Resp. to Mot. to Dismiss (“Pl.’s Resp.”) at 10, ECF No. 18 (citing Pl.’s Ex. A at 5-6, ECF No. 14-1); see also Am. Compl. ¶ 35. Plaintiff quotes from the RFQ:

There are two (2) right-of-way acquisitions required within the limits of this project; one private land owner and Maui County ( sic ). The right-of-way acquisition is expected to be completed pr ior to the issuance of the RFP [Request for Proposals].

Pl.’s Ex. A at 2 (quoting Def.’s A pp. at 167) (emphasis removed).

On December 7, 2015, HDCC was short-listed to participate in Phase Two of the

solicitation. Id. On December 18, 2015, CFLHD, in partnership with HDOT, issued a Request for Proposals (“RFP” or “Solicitation”). Id. The “Government Furnished Information” section

of the RFP stated:

1 This section does not set forth factual findings. Rather, it describes the case in terms of the facts alleged in the Amended Complaint, which must be taken as true , with all reasonable inferences construed in Plaintiff’s favor on a motion to dismiss. See Erickson v. Pardus , 551 U.S. 89, 93–94 (2007).3 Due to their size these files will be placed on CD and sent to each firm.

o Right of Way Dedication of Deed documentation

o Final Environmental Assessment/fi nding of No Significant Impact

o Survey Data

o Alternative No. 3 Profile

Id. ; Pl.’s Ex. 1 at A-11, ECF No. 28-1 (RFP). The RFP also required that:

(1) Each proposal include “the plan and prof ile of the roadway alignment, including typical sections” and the “proposed alignment and maintenance limits as it relates to available right-of-way”; and

(2) The Contractor locate and identify all util ities within the project area and “cooperate with utility owners to expe dite the relocation and adjust ment of their utilities to minimize interruption of servic e, duplication of work, and delays if relocations or adjustments are needed” and “prepare utility agreements for [CFLHD], to be executed by HDOT.”

Pl.’s Resp. at 4 (quoting Pl.’ s Ex. A at 3) (cleaned up); see also Pl.’s Ex. 1 at A-14, E-11 (RFP). HDCC alleges that the Alternative No. 3 Profil e was a “map depicting a roadway alignment which had been previously prepared for, and in cluded as part of, HDOT’s Final Environmental Assessment/Finding of No Impact . . . covering the Project. ” Pl.’s Ex. A. at 2.

On April 26, 2016, HDCC submitted its Price Pr oposal and a Techni cal Proposal. Pl.’s Ex. A at 3. HDCC alleges that its Technical Pr oposal “included a detailed roadway plan and repeatedly and unequivocally stated that the basis for the proposed roadway alignment was Alternative No. 3 as described in the Finding of No Impact furnished by CFLHD at the time of

issuance of the RFP.” Id. at 3 (cleaned up). Plaintiff stat es that when it submitted its bid, it believed that CFLHD had already secured the required ROW documents and permits—or would at least do so prior to issuing the notice to proceed—and that neither the Government nor HDCC were required to obtain grading pe rmits from the County of Maui. Pl .’s Ex. A at 6. In fact, these requirements were not completed until after contract performance commenced. Id.

C. The Contract

On June 3, 2016, CFLHD awarded HDCC the Cont ract. Pl.’s Ex. A at 3. CFLHD issued notice to proceed on June 29, 2016. Id. The Contract incorporated Federal Acquisition (“FAR”) 52.236-7, Permits and Responsibilities, which states:4 The Contractor shall, without additio nal expense to the Government, be responsible for obtaining any necessary licenses and permits, and for complying with any Federal, State, and municipal la ws, codes, and regulations applicable to the performance of the work.

Def.’s App. at 38 (Contract). The Contract contem plated that the Government would execute final ROWs, but also required HDCC to “[p]repare right of way plans and any legal descriptions documents to facilitate the final acquisition of the design and perman ent right of way to accommodate the maintenance and operation of th e facility by . . . HDOT”; “[p]repare the documents according to HDOT standards and speci fications”; and “[o]btain any required title work and field work to complete a boundary study if required by HDOT.” Id. at 96 (Contract clause 111.11, Right of Way). Th e Contract also required the c ontractor to “prepare utility agreements for CFLHD, to be executed by HDOT, ” and “[c]ooperate with utility owners to expedite the relocation or adjust ment of their utilities to min imize interruption of service, duplication of work, and dela ys if relocations or ad justments are needed.” Id. at 80 (Contract clause 107.02, Protection and Restora tion of Property and Landscape).

D. The CDA Claim

On July 17, 2020, HDCC filed a CDA claim re questing an equitable adjustment for various delays and increased costs during its Co ntract performance. Pl.’s Ex. A at 1–15. HDCC alleges that the Government’s fa ilure to secure the ROWs in a timely manner caused delays in obtaining Clean Water Act permit s and relocating utilities. Id. at 5–7, 9–12. HDCC also alleged that it suffered delays and incr eased costs due to differences between the final ROWs and the preliminary ROW documents pr ovided in the Solicitation. Id. at 7–9. Finally, it argued that it experienced excusable delays between Substan tial Completion and Final Completion of the Project because the Government ordered changes a nd additions to the Contra ct work relating to a retaining wall owned by Maui Electric Company (“MECO wall”), grading work fronting “the Castleton Property” on Kai Hele Ku Street, a nd a retaining wall on a different part of the Castleton Property. Id. at 12–13. According to HDCC, these various delays, in turn, led to critical path delay on the Project. Am. Compl. ¶¶ 21, 23. 2 On March 30, 2021, the contracting officer issued its COFD denying HDCC’s CDA claim. 3 Am. Compl. ¶ 16.

2 “Critical path” refers to work items in a cons truction schedule which, if delayed, will cause delay in reaching Substantial Completion of the project.

3 The CDA claim also requested a twelve-day extension of ti me and remission of liquidated damages for the Agency’s delay in issuing the Notice to Proceed. See Pl.’s Ex. A at 4–5. The COFD granted this request but denied all ot her claims. Pl.’s Ex. B at 23–24, ECF No. 14-2.5 E. Procedural History

On March 29, 2022, Plaintiff f iled its Complaint in this C ourt, followed on July 22, 2022, by its First Amended Complaint. Plaintiff reques ts an equitable adjustment, monetary damages, and time extensions for changed work and breach of contract. It seeks a range of damages and specific costs totaling $6,576,968; 190 compensable and excusable days of delay; 482 days of excusable delay; interest; and attorneys’ fees and costs. Am. Compl. ¶ at 11.

II. Jurisdiction

The Tucker Act grants this Court “jurisdict ion to render judgment upon any claim by or against, or dispute with, a contractor arising under” the CDA. 28 U.S.C. § 1491(a)(2); see also 41 U.S.C. § 7102(a) (providing that the C DA applies to “any e xpress or implied contract . . . made by an executive agency for . . . the procurement of serv ices”). “If a plaintiff meets the jurisdictional requireme nts of the Tucker Act, the plaintiff also must demonstrate compliance with the mandatory requirements of the [CDA].” Crewzers Fire Crew Transp., Inc. v. United States , 111 Fed. Cl. 148, 153 (2013), aff’d , 741 F.3d 1380 (Fed. Cir. 2014). The CDA requires that a contractor bring an action in fe deral court “within 12 m onths from the date of receipt of a contracting office r’s decision.” 41 U.S.C. § 7104(b)(3). Further, this Court’s jurisdiction over a CDA claim “r equires both a valid claim and a contracting officer’s final decision on that claim.” M. Maropakis Carpentry, Inc. v. United States , 609 F.3d 1323, 1327 (Fed. Cir. 2010). The Court has jurisdiction over Plaintiff’s Amende d Complaint under the Tucker Act and CDA because the case arises from a contract between HDCC and the United States, there was a valid claim and COFD, and Plai ntiff filed its Complaint in this Court within 12 months of receiving the COFD.

III. Discussion

The Amended Complaint alleges that the Contr act’s Changes clause entitles Plaintiff to an equitable adjustment (Count I) an d damages for breach of contract (Count II). Read together, the Amended Complaint and CDA Claim constitute several distinct claims which Plaintiff argues entitle it to relief. 4 Plaintiff only relies on the Changes clause as grounds for either an equitable adjustment or the basis fo r breach of contract. See Am. Compl. ¶¶ 18–20, 30. It also alleges that the Government breached its implied duty of good faith and fair dealing. Pl.’s Ex. A at 13–14. In claiming breach of contract, the Amended Co mplaint does not specif y any other contract provision, express or implied warr anty, or law that the Govern ment allegedly breached or violated. Instead, it broadly assert s that “[t]he Final Decision is in breach of the Contract, breach of CFL[HD]’s express and implied warranties to HDCC, and in vi olation of the FAR and other

4 The Amended Complaint originally incorpor ated the CDA Claim’s request for a 12-day extension of time and remission of liquidated damages for the Ag ency’s delay in issuing the notice to proceed. See Am. Compl. ¶¶ 32, 36; Pl.’s Ex. A at 4–5. The COFD granted this request, Pl.’s Ex. B at 23–24, and Plaint iff clarified in its supplemental brief that this claim is not at issue, Pl.’s Supp. Br. at 4, ECF No. 28.6 applicable law.” Am. Compl. ¶ 20. And it largely relies on an a ttachment to the Complaint for the substantive details of its claim. Am. Compl. ¶¶ 15, 30; Pl.’s Ex. A.

The Government requests that the Court dism iss Plaintiff’s Amended Complaint pursuant to RCFC 12(b)(6). See Def.’s Mot. at 1. It argues that the Amended Complaint fails to state a claim upon which relief may be granted because HDC C bore the risk for increased contract costs as a matter of law under this fixe d-price contract, Plaint iff does not plausibly allege any directed or constructive changes to the Contract, and no ot her Contract provision jus tifies relief. For the reasons set forth below, this Court agrees.

A. Legal Background

1. Standard of Review

To survive a motion to dismiss, a plaintiff must “plead[] fa ctual content that allows the court to draw the reasonable infe rence that the defendant is liab le for the misconduct alleged.” Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570 (2007); Erickson v. Pardus , 551 U.S. at 93–94.

2. Firm Fixed-Price Contracts

At its center, this case involves responsibi lities and liabilities under a firm-fixed price design-build contract. Am. Compl. ¶ 4; Def.’s A pp. at 13, 170, 218. It is a “well-settled rule that in a fixed-price contract, the contractor bears th e risk that its actual co st of performance might exceed the contract price.” Agility Def. & Gov’t Servs., Inc. v. United States , 115 Fed. Cl. 247, 249 (2014). Firm fixed-price c ontracts “provide[] for a price that is not subject to any adjustment on the basis of the co ntractor’s cost experience in performing the contract.” FAR 16.202-1. “Because fixed-price contracts do not c ontain a method for varying the price of the contract in the event of unforeseen circumstances, they assign the risk to the contractor that the actual cost of performance will be higher than the price of the contract.” Dalton v. Cessna Aircraft Co. , 98 F.3d 1298, 1305 (Fed. Cir. 1996).

Plaintiff assumed the risk of delays, increa sed costs, and the asse ssment of liquidated damages associated with the failu re to timely complete contract performance. Absent plausible factual allegations indicating the Government changed the Contract requirements—or that Plaintiff is entitled to comp ensation under another specified contract provision—HDCC cannot obtain an equitable adjustment to recover these losses as a matter of law. See Zafer Taahhut
Insaat ve Ticaret A.S. v. United States , 833 F.3d 1356, 1361 (Fed. Cir. 2016).

3. Equitable Adjustments U nder the Changes Clause

Under the Contract’s Changes clause, a contr actor can obtain an equi table adjustment for an “increase or decrease in the C ontractor’s cost of, or the time required for, the performance of any part of the work under [the] contract” when the Government orders a change to the work. FAR 52.243-4(d). In general, to receive an eq uitable adjustment under the Changes clause, a7 plaintiff must “demonstrate first that any in creased costs arose from conditions differing materially from those indicated in the bid documents, and that su ch conditions were reasonably unforeseeable in the light of all the info rmation available to the contractor.” Sterling Millwrights, Inc. v. United States , 26 Cl. Ct. 49, 72 (1992) (citations omitted). A plaintiff “must also show that its contract costs actually increased, and that the cost increas es were the direct and necessary result of the change.” Id.

Typically, “[i]n order for the Changes clause to apply, there must have been a change in the form of a ‘written or oral order . . . from the Contracting Officer that causes a change.’” Bell/Heery v. United States , 739 F.3d 1324, 1334 (Fed. Cir. 2014) (quoting FAR 52.243-4). Here, the Amended Complaint does not plausibly al lege that the Governme nt made any written or oral order for changes to the work. Rather, Plaintiff seeks relief under the constructive change doctrine. See Pl.’s Resp. at 9; Pl.’s Ex. A at 9 n.10. “A constructive change occurs where a contractor performs work beyond th e contract requirements without a formal order, either by an informal order or due to the fault of the Government.” Int’l Data Prods. Corp. v. United States

, 492 F.3d 1317, 1325 (Fed. Cir. 2007); see also Bell/Heery , 739 F.3d at 1335; Zafer Taahhut , 833 F.3d at 1361 (quoting NavCom Def. Elecs., Inc. v. England , 53 Fed. App’x 897, 900 (Fed. Cir. 2002)).

Many of Plaintiff’s claims depend upon the theory of constructive acceleration. Constructive acceleration is a type of construc tive change that “arises when the government requires the contractor to adhere to the original performance deadline set forth in the contract even though the contract provides the contractor with periods of excusable delay that entitle the contractor to a longer performance period.” Fraser Const. Co. v. United States , 384 F.3d 1354, 1361 (Fed. Cir. 2004). A contractor must show, among other things, that it “encountered a delay that is excusable under the contract.” Id. at 1361. An excusable delay “‘arises from unforeseeable causes beyond the cont rol and without the fault or ne gligence of the Contractor,’ including ‘acts of the Government in either its sovereign or c ontractual capacity.’” E.g. Nova Grp./Tutor-Saliba v. United States , 159 Fed. Cl. 1, 53 (2022) (quoting FAR 52.249-10(b)(1)). Notwithstanding the excuse, a plain tiff must “prove that it took reasonable action to perform the
contract.” Int’l Elecs. Corp. v. United States , 646 F.2d 496, 510 (Ct. Cl. 1981) (citing United States v. Brooks-Callaway Co. , 318 U.S. 120 (1943)).

4. Breach of Contract

Plaintiff contends that the G overnment breached the Changes clause when the contracting officer denied its CDA claim for an equitable adjustment. See Am. Compl. ¶¶ 18–20. “A breach of contract claim requires two components: (1) an obligation or duty arisin g out of the contract and (2) factual allegations sufficient to support th e conclusion that there has been a breach of the identified contractual duty.” Bell/Heery , 739 F.3d at 1330. On a motion to dismiss, this Court interprets a contract’s provisions to determine whether the factual allegations in the complaint, if true, would establish a breach of contract. Id. ; see also S. Cal. Edison v. United States , 58 Fed. Cl. 313, 321 (2003) (“Contract interp retation is a matter of law a nd thus may be addressed by the Court in resolving a motion to dismiss.”). When interpreting a contract, this Court gives clear and unambiguous contract terms their plain and or dinary meaning and cons trues the contract “in8 a manner that gives meaning to all of its provisions and makes sense.” McAbee Constr., Inc. v. United States , 97 F.3d 1431, 1435 (Fed. Cir. 1996).

5. Implied Duty of Good Faith and Fair Dealing

In part, Plaintiff supports its claims under th e Changes clause in Count I—in particular, the “government fault” element—an d its breach of contract claims in Count II with allegations that the Government breached the implied du ty of good faith and fair dealing by causing unreasonable delay. See Pl.’s Ex. A at 13–14. As the United States Court of Appeals for the Federal Circuit explains, “[t]he covenant [of goo d faith and fair dealing] imposes obligations on both contracting parties that include the duty not to interfere with the ot her party’s performance and not to act so as to destroy the reas onable expectations of the other party.” Centex Corp. v. United States , 395 F.3d 1283, 1304 (Fed. Cir. 2005). Both the “duty not to hinder and the duty to cooperate are aspects of the implied duty of good faith a nd fair dealing.” Precision Pine & Timber, Inc. v. United States , 596 F.3d 817, 820 n.1 (Fed. Cir. 2010). “What is promised or disclaimed in a contract helps define what cons titutes ‘lack of diligence and interference with or failure to cooperate in the ot her party’s performance.’” Solaria Corp. v. United States , 123 Fed. Cl. 105, 119–20 (2015) (quoting Metcalf Constr. Co., Inc. v. United States , 742 F.3d 984, 991 (Fed. Cir. 2014)).

B. Analysis

The Amended Complaint fails to state a cl aim that the Government required HDCC to perform work outside of its contractual requirements. The setbacks HDCC alleges it encountered during contract pe rformance—problems with the tim ing and content of finalized ROWs, obtaining necessary perm its, relocating utilities, and negotiating work on several retaining walls—were both HDCC’s sole responsibi lity under the firm fixed-price Contract and reasonably foreseeable. HDCC does not allege that the Government directed it to obtain permits or gather ROWs that were not c ontemplated by the Contract. No r does it allege that it incurred overtime premiums caused by accelerating constr uction. Moreover, nothing in the Amended Complaint implies that representatives of CF LHD or HDOT acted unfairly or bad faith. Accordingly, the Amended Complaint must be dismissed.

1. Claims for Delays in Securing the Final Rights of Way and for Changes to the Rights of Way

Plaintiff gives myriad reasons it believes th e Government was respons ible for the delays and increased costs HDCC experience d during contract performance:

 “The Government failed to secure the neces sary ROWs prior to issuing the notice to proceed, “which delayed final road design, preparation and execu tion of appropriate9 Rights of Entry agreements and commencement of construction activities” Pl.’s Resp. at 6 (citing Pl.’s Ex. A at 5–6).

 The Government’s failure to timely secure the ROWs “result[ed] in changes to the permitting requirements/standards from thos e reasonabl[y] anticipated by HDCC at the time of bidding which in turn caused delays and increased costs associated with the permitting process.” Pl.’s Resp. at 6 (citing Pl.’s Ex. A at 9–10).

 In addition to failing to secure ROWs in a timely manner, “[t] he Government made changes to ROWs upon which HDCC based its bid which resulted in delays and additional design and other compensable costs.” Pl.’s Resp. at 6 (c iting Pl.’s Ex. A at 7– 9).

The Court construes these claims as cons tructive change argume nts, as the Amended Complaint does not allege that the Government ga ve a written or oral ch ange order that caused delay or changed the ROW specifications. See Agility Def. , 115 Fed. Cl. at 251. These allegations fail to state a claim upon which reli ef may be granted under the Changes clause. Plaintiff does not allege facts that demonstrate either that HDCC performed work outside of the contract requirements or that HDCC experienced unforeseeable , excusable delay caused by the
Government’s acts or omissions.

HDCC vaguely asserts that CFLH D and HDOT made “verbal and written representations” during the procur ement process that the Agency would secure title to ROWs prior to issuing the notic e to proceed. Pl.’s Ex. A at 6. It relies on language in the October 1, 2015 RFQ, which stated that “[t]he right-of-way ac quisition is expected to be complete prior to the issuance of the RFP.” Def.’s App. at 167; Pl.’ s Resp. at 3; Pl’s Ex. A at 2. However, the RFP issued on December 18, 2015, informed bidder s that the Contract would require the contractor to “[p]repare right of way plans and any legal descri ptions documents to facilitate the final acquisition of the design and permanent ri ght of way to accommodate the maintenance and operation of the facility by . . . HDOT”; “[p]re pare the documents accord ing to HDOT standards and specifications”; and “[o]btai n any required title work and field work to complete a boundary study if required by HDOT.” Pl.’ s Ex. 1 at E-27, ECF No. 28-1. By including this language in the RFP, it was clear the Gove rnment had not yet secured fi nal ROWs. Similarly, the RFP contemplated that final ROWs would not be obtained until afte r the contract award, as the contractor’s assistance was required to facilitate ROW desi gn and acquisition.

While the Contract assigns the Government re sponsibility to obtain title to ROWs, it does not specify a date by which the Government was required to do so. See Pl.’s Ex. A at 5–6. Thus, HDCC is wrong to allege that the Government caused unforeseeable, and therefore excusable, delays in contravention of its express duties under the Contract. Because the Contract required HDCC’s participation in securing ROWs, it was en tirely foreseeable that the Government would not have finalized ROWs prior to awarding the C ontract or issuing the no tice to proceed. Pl.’s Ex. 1 at E-27; Def.’s App. at 96. This was a firm fixed-price, desi gn-build contract that10 unambiguously included ROW design a nd facilitation services as part of the contractor’s scope of work. Thus, HDCC bore the risk of increas ed costs and delays re lated to designing ROWs, securing ROWs, and adjusting construction designs based on preliminary ROW approximations
in order to fit final ROWs. Pl.’s Ex. 1 at E-27; Def.’s App. at 96.

Plaintiff also fails to allege facts that the Government’s acts or omissions caused the delays, thereby violating the implied duty of good faith and fair dealing. See Pl.’s Ex. A at 14. Nor does it offer facts showing that the Government engaged in a “lack of diligence and
interference with or fa ilure to cooperate in [HDCC’s] performance” to suggest that the Government was responsib le for the delays. Metcalf , 742 F.3d at 991. HDCC makes only conclusory assertions that th e Government caused various delays. Without more, these allegations are insufficient for this Court to find th at the Agency’s acts or omissions were in bad
faith. Figueroa v. United States , 57 Fed. Cl. 488, 497 (2003), aff’d , 466 F.3d 1023 (Fed. Cir. 2006) (“[L]egal conclusions, deductions, or opinions couched as factual alle gations are not given a presumption of tr uthfulness.” (quoting Blaze Constr., Inc. v. United States , 27 Fed. Cl. 646, 650 (1993)) (cleaned up)).

Moreover, Plaintiff cites inapposite cases to support its claim that it is entitled to an equitable adjustment where the Government issu ed late ROWs. In these cases, courts found contractors entitled to an equitable adjustment because the government failed to furnish ROWs by an explicit deadline. See Am. Line Builders, Inc. v. United States , 26 Cl. Ct. 1155, 1163, 1205 (1992) (finding entitlement wher e the government misse d an agreed-upon deadline to provide ROWs); see also Appeal of Erickson Ai r Crane Co. of Washington, Inc. , EBCA No. 50-6, 83-1 B.C.A. (CCH) ¶ 16145, 1983 WL 9353 (E.B.C.A. Sept. 30, 2982) (involving a c ontract that also specified a deadline for the government to provide the ROW). Here, however, the parties never agreed upon a specific date. Moreover, the Government did not re present that the ROW documents provided in the RFP—the Declara tion of Future Dedication Commitment and
Alternative No. 3 Profile—were final ROWs. See Pl.’s Ex. 1 at E-27 (RFP clause 111.11); Def.’s App. at 96 (Contract clause 111.11); see also Pl.’s Ex. A at 6 n.7 (when asked at the Q&A stage of the procurement process whether “all ri ght-of-way acquisition has been obtained,” the Agency referred bidders to th e Contract language regarding “ROW engineering required by contractor” and stated that the “[f]uture dedication allows cons truction to commence concurrently”).

HDCC also blames the delays and increased costs to obtain Clean Water Act Section 404 permits (“404 permits”) on the Gove rnment’s alleged failure to timely secure final ROWs. Pl.’s Ex. A at 9. Specifically, HDCC alleges that it wa s not able to submit it s 404-permit application in line with its preferred schedul e because the permit application required details that could only
be found in the final ROWs. Id. Before HDCC was able to obtain the ROWs and submit its permit application, the local regulations governi ng the 404-permit requirements expired and new, more stringent regulations were put in place. Id. at 10. HDCC claims that it suffered delays and increased costs to comply with the heightened permitting requirements, which it would not have experienced had it been able to submit its permit application under the old regulations. Id.11 Under the Contract’s Permits and Res ponsibilities clause, HDCC was, “without additional expense to the Govern ment, . . . responsible for obta ining any necessary licenses and permits, and for complying with a ny Federal, State, and municipa l laws, codes, and regulations applicable to the performance of the work.” FAR 52.236-7. While this clause “can be constrained by other contractual provisions that specifically limit the scope of the contractor’s obligations for perm itting requirements,” see Bell/Heery , 739 F.3d at 1331, Plaintiff would need to plausibly allege that the late ROWs changed the Contract or re sulted in excusable delay. It fails to do so. Thus, the Changes clause does not relieve HDCC of its obligations under the Permits and Responsibilities clause.

Additionally, Plaintiff does not credibly alle ge that the contract requirements or site conditions were materially different fro m the ROW information in the RFP. See Sterling Millwrights

, 26 Cl. Ct. at 72. It is clear that these were not the final ROWs. See Pl.’s Ex. 1 at E27 (RFP clause 111.11); Def.’s App. at 96 (Contract clause 111.11); see also Pl.’s Ex. A at 6 n.7. The need to adjust the ROW design to fit within the final ROW was foreseeable under the RFP’s and Contract’s requirements for ROW design and facilitation services. Sterling Millwrights , 26 Cl. Ct. at 72 (providing that an equitable adjust ment for differing site conditions requires the materially different conditions to be reasonably unforeseeable); Pl.’s Ex. 1 at E-24 (RFP clause 111.05. Geometric Requirements); E-27 (RFP clause 111.11); Def.’s App. at 93 (Contract clause 111.05. Geometric Requirements), 96 (Contract clause 111.11).

In its CDA claim, Plaintiff invokes the Spearin doctrine, under which a contractor is entitled to compensation and additional time for changes caused by defective plans or specifications. United States v. Spearin , 248 U.S. 132 (1918). That doctrine concerns the “implied warranty that if the spec ifications are followe d an acceptable result will be produced,” which arises only in cases where “a government c ontract contains detailed design specifications, as opposed to performance specifications.” Rick’s Mushroom Serv., Inc. v. United States , 521 F.3d 1338, 1344 (Fed. Cir. 2008). Here, the Spearin doctrine does not apply because the instant design-build contract contains only performance specifications. See Def.’s App.; Pl.’s Ex. B at 52. In sum, Plaintiff has not iden tified any legal or factual basis that entitles it to recover on its
ROW claims.

2. Utility Relocation Delay Claim

Plaintiff asserts that the Contract required the Government “to timely execute and enforce its agreements with public utility companies” to relocate utilities, and its failure to do so “resulted in delays in HDCC’s co mpletion [of] the final roadway c onfigurations at the Southern
Terminal and Hokiokio and additional costs en titling HDCC to an excusable and compensable
time extension and additional costs.” Pl.’s Res p. at 6 (citing Pl.’s E x. B at 40–49). Plaintiff alleges that it notified the utility company that owned telephone lines at the Project’s Southern Terminus that its poles and overhead lines had to be relocated by Oct ober 2017. Pl.’s Ex. A at 11. Plaintiff also allegedly notified the utility companies that owned conf licting utilities at the12 Hokiokio Street portion of the Pr oject that their poles and overhead lines had to be relocated no later than August 4, 2017. Id. at 12. However, the Southern Te rminus utility was not relocated until May 11, 2018, and the Hokiokio Street utilities were not relocated until July 11, 2018. Id.

The Amended Complaint fails to state a clai m under the Changes clau se for recovery of increased costs due to delays in these utility relo cations. It does not a llege facts demonstrating that these delays were excusable due to the Government’s acts or omissions in violation of the contract’s express terms or the implied duty of good faith and fair dealing. HDCC points to no contractual provision or authority obligating the Gove rnment to compel third-party utility companies to complete utility relocations with in HDCC’s preferred sche dule. The Contract required the contractor to “prepare utility agre ements for CFLHD, to be executed by HDOT,” but
made no assurances that CFLHD or HDOT would ensure the util ity companies’ adherence to HDCC’s schedule. Def.’s App. at 80 (Contract clause 107.02, Protection and Restoration of Property and Landscape). The Contract sp ecifies that HDCC was responsible for “[c]ooperat[ing] with utility owners to expedite th e relocation or adjustment of their utilities to minimize interruption of se rvice, duplication of work, and dela ys if relocations or adjustments
are needed.” Id. The firm fixed-price nature of the C ontract assigned HDCC th e risk of utility relocation delays. Thus, Plai ntiff’s claim must fail.

3. Maui Electric Company Wall and Castleton Wall Excusable Delay Claim (Time Only)

HDCC’s final claim is a request for excusabl e days of delay and re mission of liquidated damages, but not increased costs. Pl.’s Resp. at 20; Pl.’s Ex. A at 12–13. It alleges that “the Government caused delays associat ed with changes to the work i nvolving the Maui electrical and Kai Hele Ku [Castleton] retaini ng walls.” Pl.’s Resp. at 6; see also Pl.’s Ex. A at 12–13. Specifically, HDCC asserts:

[W]hile the Project achieved actual Substantial Comple tion on July 24, 2018, there
remained two forms of wall work associated with neighboring prope rties. The first was for the Castleton prope rty which the Government was negotiating with the neighboring landowner over its request for a different, terraced [wall] to its property [as opposed to the graded slopes HDCC had already completed under the Contract]. The second were Government requested changes to the MECO [Maui Electric Company] wall work for another adjacent property. HDCC priced both of these changes to the wall work to be performed at the same time, but the Government delayed and kept HDCC on standby for 482 da ys and then it instructed HDCC not to perform the Castleton [terrace] wall work [because it decided to give that work to another contractor], and HDCC was for ced to perform the Government’s changes
to the MECO wall work without an approved change order.

Pl.’s Resp. at 15; see also Pl.’s Ex. A at 12–13. It is unclea r—and the parties disagree about— whether the MECO wall work was part of HDCC’s original scope of work. Compare Pl.’s Ex. C13 at 49 with Pl.’s Ex. B at 72. Conseque ntly, they disagree as to whether HDCC’s need to make changes to the MECO wall after Substantial Completion constituted a change to the Contract requirements. Compare Pl.’s Ex. C at 49 with Pl.’s Ex. B at 72. Neith er party cites to any RFP or contract provision to support its position on what work relating to the MECO wall was
included in the base Contract. 5

HDCC argues that the MECO wall work ch anged the contract requirements because “only grading [for the MECO utility boxes] was in cluded in the base Contract,” but “[t]he approved grading change to the Castleton dr iveway [associated with the terraced wall construction] required construction of a block wall at the utility boxes pe r MECO requirements.” Pl.’s Ex. C at 62. Based on this assumption, HD CC argues that it “could not proceed with the changed work without a contract modification” and “[t]he re ason the MECO wall was delayed was because CFL[HD] would not provide an ap proved change modification to proceed.” Id. HDCC further explains that the “additional wall work at the MECO location . . . used the same block as the proposed [Castleton terraced] wall c onstruction,” and it believed both of these work
items “would be covered under the same contract modification.” Pl.’s E x. C at 63. Therefore, HDCC decided to complete this work simultaneously. Id. It states that “[w]hile awaiting direction from CFL[HD],” a survey revealed an i ssue with a different re taining wall on another part of the Castleton property and HDCC began “work[ing] on a minor re design” to increase the wall height. See id. It chose to complete the work to increase the height of the other Castleton retaining wall “in conjunction with the pending Contract Modification [i.e. MECO wall and Castleton terraced wall] work.” Id.

Because HDCC had various work—and additi onal anticipated work—to complete in close geographic proximity, “HDCC recommende d, and CFL[HD] accepted that this remaining base work be delayed:” (1) “[s]o that all work is completed at the same time, or pacing the work to complete when the change order work finishes”; (2) “[t]o efficiently use [HDCC’s] resources”; and (3) “[t]o manage and reduce the cost of equipmen t mobilization and use.” Pl.’s
Ex. C at 63. HDCC states that th is arrangement “was an economic decision that was beneficial
to both HDCC and CFL.” Id.

The COFD claims that the ME CO wall “was part of HDCC’s original scope of work and was entirely unrelated to the Castleton Terrace Wa ll issue, other than th e fact that the MECO wall was in the same vicinity as the Castlet on Terrace Wall. HDCC’s failure to complete the
MECO Wall work is unrelated to the Castleton Terrace Wall, which both pa rties had agreed was
added work.” Pl.’s Ex. B at 67. The COFD furthe r explains that the work to increase the other

5 It is unclear whether Plaintiff’s claim for ex cusable delay encompasses a claim that the MECO wall work was changed work, either under a trad itional or constructiv e change analysis. However, the Court interprets Plaintiff’s cla im for time only as a claim for excusable days associated with its negotiation of the various wa ll work items with the Ag ency. Because Plaintiff does not appear to request compensation for the “a dditional” or “changed” work to the MECO or Castleton walls, the Court does not address whet her the MECO wall work was, or was not, a base Contract requirement.14 Castleton retaining wall’s hei ght after HDCC discovered issues with the wall during a survey was original Contract work. Id. The Agency argues that “HDCC did not diligently pursue this work to complete the original Contract requirem ents. . . . This delay in completing Contract requirements is concurrent w ith the MECO Wall delay.” Id. The Government contends that
Plaintiff’s “unilateral” decision to delay both the base Contract work and the added work “while waiting to see if it would obtain a separate contract to also comp lete” the Castleton terraced wall was a “business decision.” Def.’s Reply at 9. Thus, it concludes that “HDCC cannot state a claim for relief against the Government as a result of HDCC’s ow n business decision.” Id.

HDCC does not plead sufficient fa cts to demonstrate excusable delay. The alleged facts, even when taken as true, indicate that HDCC in tentionally contributed to the delay and that HDCC did not continue to perform the contract de spite its pending disputes with the Agency as required under the Contract’s Disputes clau se. Pl.’s Ex. C at 52–54; FAR 52.233-1, Disputes (July 2002) – Alternate I (Dec. 1991) (“The Contract or shall proceed diligently with performance of this contract, pending final re solution of any request for relief, claim, ap peal, or action rising under or relating to the contract, and comply with any decision of the Contracting Officer.”); see also Int’l Elec. Corp. , 646 F.2d at 510; Nova Grp./Tutor-Saliba , 159 Fed. Cl. at 53. HDCC
indicates that it submitted mult iple proposals and requests for contract modification orders, equitable adjustments, and excusa ble delay associated with the va rious wall work issues. Pl.’s Ex. C at 52–54. However, it admits that it c hose to delay performa nce of certain items dependent upon resolution of these requests to the Agency, or in or der to benefit itself and the Agency economically. See Pl.’s Ex. C at 52. HDCC had control over the schedule in this design-build Contract. Finally, it fails to allege facts suggesting that the Government acted in bad faith in taking time to make decisions regarding the additional Castleton wall work or to resolve HDCC’s various requests.

IV. Conclusion

As explained above, Plaintiff has failed to plausibly allege that there were Government directed changes to the Contract. What HDCC inte rprets as changes are, in fact, obstacles that arose during contract performance which deviated from assumptions HDCC held at the time of its bid. Under the Contract, HDCC was solely responsible for the costs associated with addressing these obstacles. Therefore, the Am ended Complaint does not state a claim for an equitable adjustment under the Changes clause (Count I) or for breach of the Changes clause (Count II). The Amended Complain t also fails to plausibly allege facts demonstrating that the underlying Government acts and omi ssions that led to the alleged changes were in bad faith.15 Accordingly, the Government’s Motion to Dismiss the Amended Complaint is
GRANTED , and the case is DISMISSED without prejudice

. The Clerk of the Court is directed to enter judgment accordingly.

IT IS SO ORDERED.

s/ Carolyn N. Lerner
CAROLYN N. LERNER Jud g e