ARMED SERVICES BOARD OF CONTRACTAPPEALS Appeal of

-- ) ) Balfour/S&P Two, A Joint Venture ) ) Under Contract No. W9126G-09-C-0054 ) APPEARANCE FORTHE APPELLANT:

APPEARANCES FORTHE GOVERNMENT: ASBCA No. 58067

Douglas L. Patin, Esq.

Bradley Arant Boult Cummings LLP Washington, DC Thomas H. Gourlay, Jr., Esq.

Engineer ChiefTrial Attorney Jane Holt-Duecaster, Esq.

EngineerTrial Attorney U.S. Army Engineer District, Ft. Worth OPINION BYADMINISTRATIVE JUDGE WILSON This appeal arises from the denial ofa claim for costs associated with performing remedial workto correct alleged deficiencies in drilled concrete foundation piers due to alleged defective specifications and the governmentpreclusion of appellant's means and methods to complete construction. A six-day hearing was held in SanAntonio, Texas, on entitlement only. The parties have submittedpost-hearing and reply briefs. The Boardhasjurisdiction overthis matterpursuanttothe Contract Disputes Act of 1978 (CDA), 41 U.S.C. §§ 7101-7109. Forthe reasons stated below, we deny the appeal. FINDINGS OF FACTS 1. On 17 September2009, the United States Army Corps ofEngineers, Fort Worth District (Corps or government), awarded ContractNo. W9126G-09-C-0054 to Balfour/S&P Two, A Joint Venture (Balfour or appellant) in the amount of $46,437,194 (R4, vol. 1, tab 4). The parties involved inthejointventure were Balfour Beatty and Satterfield & Pontikes, JV (supp. R4, vol. 10, tab 168). The contract was for the construction ofthe Airmen Training ComplexDormitory 1, at Lackland AirForce Base (LacklandAFB), in SanAntonio, Texas. This project, which was the first dormitory tobe constructed out ofeight identical dormitories, waspart ofa larger program at Lackland AFB calledthe Airman Training Complex (ATC). The contract performance period was 730 days from receipt ofthe Notice to Proceed (NTP). (R4, vol. 1, tab 4) The contract included a structural design for the foundation that consistedof 136 reinforced drilled piers (also referred to as drilled caissons) installedto a depth of approximately 65 feet below grade (R4, vol. 2, tabs 13-19). The relevant contract drawings required that the upper section ofeachpierbe installed using a sonotube, which is a round cardboard formwork (akinto a giant cardboardpapertowel roll) (R4, vol. 2, tab 20; supp. R4, vol. 40, tab 797). 2. The contract also contained the following special technical provisions: SECTION 31 63 26 DRILLED CAISSONS 08/08 PART 1 GENERAL 1.1 UNIT PRICES 1.1.1 Basis ofBids Basethe bid on the number andtotal length ofcaissons, established by top and bottom elevations and diameters.... The Contractorwill not receive payment for rejected caissons or for those not conforming to specifications.

1.7 SEQUENCING 1.7.1 Caisson Excavation Perform excavation ofcaissons or groups ofcaissons so that reinforcing steel and concrete placement is a continuous operation performed the same day that the excavation is completed. Do not leave excavations open overnight.

2.1 MATERIALS 2.1.1 Concrete Work

2

### Perform all concrete work in accordance with requirements ofSection 03 3100.0010 CAST-INPLACE STRUCTURAL CONCRETE, as modified herein: 2.1.1.1 Strength Provide 3000 psi strength concrete at 28 days, with slump from 4 to 6 inches.

2.1.1.3 Reinforcing Steel Provide reinforcing steel conforming to ASTM A 615/ A 61SM Grade 60, welded into cages in accordance with AWS Dl

.4/Dl

.4Mand inserted securely in the caissons, in position and alignment, as shown, priorto concrete placement.

2.1.3 Casing Steel

...Provide casings with an outside diameters [sic] not less than indicated shaft sizes and a minimum of114 inch thick. Temporary casings shall extend down 40 feet below existing grade

....

3.2 INSTALLATION

b. Bring concrete to a true level surface inside the shaft and a full width cross key formed, or dowels installed, ifit becomes necessary to interrupt placing concrete in any caisson. Priorto placing additional concrete, clean surfaces oflaitance and slush with one3 

# I •

'

### to-one portland cement grout, having a water-cement ratio not exceeding that ofthe concrete. (R4, vol. 1, tab 12 at 417, 420-22) The drilled pier foundation is created as follows: The process begins with drilling a hole with an aug[e]r. And the soils are displaced

....

...[A] casing is placed down in the hole, as the hole is started. Andthen once placed inside the hole, the auger action goes inside and continues the drilling until it gets to what's called the properbearing depth. And once it reaches a certain resistance that is acceptable to the Government's geotechnical representatives it's consideredproperto begin the placement ofconcrete. (Tr. 1/14-15) Before the concrete is placed, a rebar cage (approximately 60 feet in length) is inserted inside the drilled shaft. Additionally, the contractor is required to "[c]ontinuously remove all water that flows into the excavations and from the excavationbottom, to the extent possible prior to concrete placement." The applicable contractprovisions further state: The maximumpermissible depth ofwater is 2 inches. In the event ofa severe water conditionthat makes it impossible or impractical to dewater the excavation, place concrete using an underwater tremie after water movement has stabilized. (R4, vol. 1, tab 12 at 422) The record reflects that a "tremie" is a solid pipe that concrete is pumped through to fill the previously-drilled shaft. The tremie may be inserted directly in the freshly-poured concrete to continue filling the excavated area; effectively filling the shaft with concrete while flushing out water and other contaminates from below. (Tr. 1116) 3. The contract containedthe following Federal Acquisition Regulation clauses in pertinentpart: 52.236-5, MATERIAL AND WORKMANSHIP (APR 

### 1984)

4 

# t 

# I

### (c) All work under this contract shall be performed in a skillful and workmanlike manner. The Contracting Officer may require, in writing, that the Contractorremove from the work any employee the Contracting Officer deems incompetent, careless, or otherwise objectionable. (R4, vol. 1, tab 4 at 166)

(Id. 

### at 171) 56.236-21, SPECIFICATIONS AND DRAWINGS FOR CONSTRUCTION (FEB 

### 1997) (a) The Contractor shall keep on the work site a copy of the drawings and specifications and shall at all times give the Contracting Officer access thereto. Anything mentioned in the specifications and not shown on the drawings, or shown on the drawings and not mentioned in the specifications, shall be oflike effect as ifshown or mentioned in both. In case ofdifference between drawings and specifications, the specifications shall govern. In case ofdiscrepancy in the figures, in the drawings, or in the specifications, the matter shall be promptly submittedto the Contracting Officer, who shall promptly make a determination in writing. Any adjustment by the Contractor without such a determination shall be at its own risk and expense.... 52.246-12, INSPECTION OF CONSTRUCTION (AUG 

### 1996)

(b) The Contractor shall maintain an adequate inspection system and perform such inspections as will ensure that the workperformed under the contract conforms to contract requirement.

...

(f) 

### The Contractor shall, without charge, replace or correct work found by the Government not to conform to contract requirements, unless in the public interest the Government

5consents to acceptthe work with an appropriate adjustment in contractprice. The Contractor shall promptly segregate and remove rejected material from the premises. (R4, vol. 1, tab 5 at 207) 52.246-21, WARRANTY OF CONSTRUCTION (MAR 1994) (a) In addition to any other warranties in this contract, the Contractor warrants, except as provided in paragraph (i) of this clause, that workperformed under this contract conforms to the contract requirements and is free ofany defect in equipment, material, or design furnished, or workmanship performed by the Contractor or any subcontractor or supplier at any tier.

(c) The Contractor shall remedy at the Contractor's expense any failure to conform, or any defect

....

(d) The Contractor shall restore any work damaged in fulfilling the terms and conditions ofthis clause

....

(i) Unless a defect is caused bythe negligence ofthe Contractor or subcontractor or supplier at any tier, The Contractor shall not be liable for the repair ofany defects ofmaterial or design furnished by the Government nor for the repair ofany damage that results from any defect in Government-furnished material or design. (Id. at 208-09) 4. The contract also contained numerous drawings, including No. A-S502 "CONCRETE DETAILS"which illustrated the "SONOTUBE FORMING AND CLAY CAP DETAILS" (R4, vol. 2, tab 20)

6 

## ''· 

# l5. The NTP was issued by the Corps on 23 September 2009, and was acknowledged as having been received by appellant on 6 October 2009 (R4, vol. 2, tab 26). Thus, 6 October 2011 was the original contract completion date. 6. Bytransmittal dated 1December 2009, appellant submitted its shop drawings for the piers, which included the "TYPICAL PIERREINFORCING SUPPORTDETAIL" and proposedthe usage of"3" CONCRETE MACON PIER BOLSTER (3 -PCS. PERCAGE)" and "PIER SLEDS" to securethe rebar cage inside the concrete piers in the alignment and position shown onthe drawings in order to meet the contractrequirement thatthe rebar cage have at least 3 inches ofconcrete coverage around the cage (R4, vol. 2, tab 27 at 442, 463, 479, 495). It is undisputed that these sleds and bolsters proposed by appellant were made ofconcrete (tr. 3/71). It is further undisputed that appellant ultimately used plastic wheel spacers (tr. 3171, 161). 7. On 24 December 2009, appellant submitted Request for Information (RFI) No. 0035, which stated: After further coordination with the subcontractors that will be drilling and placing the concrete piers, we have determined that there are some options that will alleviate constructability issues regarding the placement ofthe pier extensions that extend above grade. Based on geotechnical information, we are assuming that all piers will require casing. The casing will prevent formwork and reinforcing ties for the portion ofthe pier above grade from being installedprior to placementofthe concrete and removal ofthe casing. This would require that concrete beplaced up to 5'0" below grade elevation, casing completely removed, reinforcing steel pierties above grade installed, sonotubes cutto correct length, sonotubes set, formed, plumbed, and elevations marked, then a continuation ofconcrete placement. This work wouldhave to beperformed in an amount oftime to not create an unintentional coldjoint in the pier. Logistically this will be difficult to achieve and will significantly decrease the production ofpierplacement. We propose that a constructionjoint in the piers be designed and located at ornear the grade elevation and the

7extension ofthe piers above grade be formed and placed the following day. Please advise ifthis will be acceptable. The Corps responded on 30 December 2009 stating: "Placethe constructionjointat 5 feet below grade. Form the top tiers with sonotubeper Detail 6/B-S502." This response was sent by Yijie Qiang, SeniorDesignEngineer. (R4, vol. 2, tab 29) 8. Subsequently, on 4 January 2010 the Corps offered an additional response to RFI No. 0035. This response, sent by Mr. Joshua Alley, the Corps' Quality Assurance Representative (QAR), provided the following: "It is acceptable to place a coldjoint 3' above grade onthe piers. The government considers this to be a clarification ofthe contractrequirements, it does not constitute a change to the contract and does not require a change to the cost ortime." The response also noted that several email attachments were included in the response authored by Messrs. Ken McCleskey and Steve McCall. (R4, vol. 2, tab 30) Mr. McCleskey was the lead geotechnical engineer for the Dormitory 1ATC project (tr. 2/172). Mr. McCall was the lead QARfor the Corps (tr. 3/54). 9. On 11 January 2010, Mr. McCall sent an email to Mr. McCleskey requesting that he review RFI No. 0035 and the Corps' response (via SeniorDesign Engineer Qiang). Mr. McCall added: The contractor is voicing concern about thepotential of water and mud being at the top ofthe concrete 5' below grade making it very difficultto clean off. Ifthe concrete was broughtto gradethen the water and mud would not be an issue. Pat Finley saidthat this was a Corp detail and he did not wantto very [sic] from it without your input. Mr. McCleskey replied, by email dated 14 January 2010 (9:21 am) as follows: I'mnot sure I understand what the contractor's issue is. Typically, they should drill the pier, using casing to seal offany groundwater or sloughing materials from the walls ofthe excavation. They would then underream and cleanoutthe pierwith theirbelling tool, and, once approved by us (USACE COR), install theirrebar cage into the pierhole. Nextthey wouldplace their concrete to near the surface. Lastly, they would seat the sonotube

8withinthe uppermostpart ofthe pier, per our detail (i.e., with sonotubeplaced withinthe upper 5 feet ofpierto ensure the formed concrete at the top ofthe pier is cylindrical in shape

.... Ifthey use the sonotube, perthe contract drawings, I see no reason why they can'tplace the pier concrete to the elevation indicated on the structural drawings (i.e., there should be no reason why they wouldhave to stop pier placementbelow grade). Therefore, theirrequested deviation shouldbe refused. (R4, vol. 2, tab 31) 10. Mr. McCall replied via email at 1:30 pm onthe same day, which read as follows: The question is howhard is it toplacethe sonotube once the casing is removed and maintain a continuous column of concrete inthepierwithouthaving a coldjointatthe bottom ofthe sonotube, especially since the top ofthe son[o]tube in some cases is 8' above the dirt grade? PatFinley's [the designer ofrecord] response would leave us to believethat a coldjointis permissible atthis point, do you concurwithhis response? Ifyou do concurthen what is the recommended method for cleaningthe top ofthe concrete to avoid having compressible materials at the cold joint? Mr. McCleskey responded by email also onthe same date, stating in pertinentpart: There shouldn'tbe an issue removing the casing and placing the sonotube and remaining concrete. The entire operation ofplacing the concreteto nearthe top ofthe casing, removingthe casing

...placingthe sonotube, and completing concrete placement shouldtake less than 30 minutes on a typical pier. Properly done, this should be a *continuous* operation

....

9So, to reiterate, I advise that we refuse the contractor's proposed deviation. The piers should not be constructed with a coldjoint, and, following the typical/common practice drilled pier construction procedure outlined above, a coldjoint shouldn't even come into play. (R4, vol. 2, tab 32) 11. On 16 January 2010, the site was flooded due to a water main break, thereby delaying the project (supp. R4, vol. 10, tab 178). The record also contains numerous references to water at the site as an issue in the pier constructionprocess and a significant number ofpiers that had to be drilled at least twice priorto completion (supp. R4, vol. 26, tabs 349-83). By email dated 18 January 2010, Mr. McCall communicatedto Messrs. Finley and McCleskey to relay the following information: This e-mail is to document and confirm a conversation between Pat Finley and me on Friday 15 January 2010. The subject ofthe conversation was to discuss means and methods ofinstallation ofthe son[o]tube extinctions [sic] for the piers. Patreported that he would accept ajoint in the columns that extendthe piers to the 1st floor slab. If the contractor installs the son[o]tube to 2 or 3 feet above the dirt grade in the crawl space andplaces the concrete in a simultaneous pour once the pier casing is removed, this would avoid a coldjointbelow grade in the pier. This removes the contractor[']s constructability issues with having mud and water in thepiers

.... Please respond to this to voice any concerns you might have. (R4, vol. 2, tab 33) The record reflects that Mr. McCleskey had no concerns regarding the methods proposed in the above-mentioned email (tr. 2/214). We find thatthe Corps decision to allow the use ofa coldjoint at 3' above grade was reasonable. 12. On 15 February 2010, the first piers were drilled by subcontractor Batten Drilling. The record reflects that Mr. McCleskey made a site visit to Lackland AFB to inspect the start ofpier drilling operations. In his detailed memorandum for the record, he observed the excavation of3piers, designated as C-3, C-4, and D-5. Several issues arose including: 1) concrete slump was initially 3 inches, later corrected by adding waterto achieve the requisite 6 inch slump (C-3); ground water seepage and material sloughing into the previously drilled cavity and casing placement

10(C-4); and suspending the rebar cage by a crane during concrete placement due to over drilling the pier cavity (C-3 and D-5). Mr. McCleskey concluded: Batten Drilling appeared to be having difficulties, as noted herein, drilling and underreaming the piers on the date of the inspection. It is the opinion ofthe undersigned that these issues are primarily attributable to the "first day" lack offamiliarity with the site-specific subsurface conditions. Drilling efficiency andpier construction processes are anticipated to improve as more experience is gained at the site. However, the issues regarding casing placement and withdrawal from Pier C-4 cause greater concern for the understanding ofbasic drilling principles in areas of known water-bearing sloughing materials.... It should be noted that the subsurface conditions encountered on the date ofthe inspection were very similarto those described in the logs ofborings included in the USACE Foundation and PavementDesign Analysis and presented in the contract drawings. (R4, vol. 2, tab 65) 13. On 18 March 2010, Mr. Joshua Alley, the Corps' QAR sent appellant the following email: From approximately 1630 on, the only representative of [appellant] in the area that the work was being performed was Mike Dugger, the SSHO [Site Safety and Health Officer]. Mike Duggerwas performing the work ofthe SSHO, the Superintendent, and the QC. As perthe terms ofthe contract, the SSHO is only to have the duties ofthe SSHO. Further, during the placement ofone ofthe piers, I had to stop work before the concrete could beplaced in the sonotube because it was visibly obvious that the sonotube was out ofplumb. Upon checking the sonotube, I found that the sonotube was several inches out ofplumb. I asked to have the pier corrected and it was broughtto within the tolerances described in the specifications

....

11If

### you intend to continue working the hours that you worked yesterday, then you also needto provide adequate Quality Control and Superintendence to ensure that the workbeing done meets the contract requirements, and to allow the SSHO to perform his work without interruption or distraction. (R4, vol. 3, tab 130) 14. Appellantresponded via email on 19 March 2010 indicating that several representatives were on site and that "[t]hepiers in question will be checked and dealt with accordingly" (R4, vol. 3, tab 133). 15. On 20 March 2010, QARAlley forwarded via email a spreadsheetto appellant detailing several piers that were not plumb and were marked "Fail." He stated further: "Please examine the data and let me know when you are ready to meet to discuss whatthe next step should be." (R4, vol. 3, tab 135) 16. By letter dated 12 May 2010, the Corps identified several deficiencies in the pier construction including: 1. Piers not within tolerances for plumb or out of tolerance for alignment. 2. Reinforcement inside piers does not have the required clearance to the surface ofthe concrete. 3. Concrete in piers does not meet contract requirements. 4. [H]ook bars in perimeterbeam and slab were tied to the inside ofthe reinforcement cages and not outside as perthe details[.] 5. The required number ofdowels between the Pier Cap in Area A and the surrounding slab has not beenprovided. Additionally, appellant was directed to submitproposals for the methods ofevaluation to the Corps for review. After acceptance ofthe proposed testing methods, appellant was required to test and document the condition ofall ofthe piers. Forthose piers found to be deficient, appellant was to submit a repairplan to the Corps for approval. Upon approval, appellant was further directed to treat the repairwork as "anew feature ofwork, andwill require a full preparatory meeting, initial inspection, and follow-up inspections." Finally, in addition to indicating that appellant's quality

12 

# tcontrol had been lacking, the Corps concluded that appellant's performancehad been unsatisfactory. (R4, vol. 3, tab 149) 17. By letter dated 19 May 2010, appellantreplied to the Corps' 12 May 2010 letter indicatingthat it had taken immediate action on the issues. First, appellant fired its structural quality control inspector "due to a systemic failure ofenforcing the appropriate quality control measure required for this project." Appellantreported that it wasbringing on a new QC inspectorwith significant experience as well as using the general superintendentto "take an active and increased role to monitor and control the quality control department." With regard to the other issues, pierplumbness and location, underground pierplumbness, poor concrete, pier rebar cover and length, open piers, and otherproblems, appellantproposed a "MOVE FORWARD PLAN" as follows: 1. Refine method to identify and fix deficient issues. a. Utilizing the pachometerwe will 1) Locate rebar depth, top and bottom at above gradepier extension 2) Locate top ofpier cage reinforcing b. Core andperformpenetration test (Windsor Probe) on a sampling ofpierextensions as identified by ourthirdparty engineerto verify concrete strength c. Excavate 5' below grade atpiers Jll, F12 and K 10 identifiedby ourthirdparty engineerto inspect and testbelow grade concrete. 2. Submit identification and fix process to USACE for approval. 3. Proceed with identification and fix. (R4, vol. 3, tab 150) Basedupon the foregoing, we find that appellant did not employ the appropriate quality control measures at the site. 18. On 25 May 2010, the Corps informed appellant that it's proposed QC representative's personnel qualifications hadnotbeen received and that until a new structural QC qualifiedper Specification § 01 45 01 had been submitted and approved, no further work on "structural functions" ofthe project may proceed. The Corps further noted that the requirement for maintaining documentation was also not being met. (R4, vol. 3, tab 151) 19. By letter dated 14 July 2010 appellant advised that it had retained Mr. Edward Ulrich, P.E., to assist with the resolution ofthe foundation construction

13issues. Appellant conveyed Mr. Ulrich's findings that "most ofthe conditions observed in the piers are inherent in the USACE's design and instructions and its denial ofBalfour/S&P's request to modify the design in RFI 0035, and as such, could notreasonably have been avoided underthe circumstances." Thus, appellantputthe Corps on notice that it was reserving its rights with regard to all costs and schedule delays associated with the foundation repairs. (R4, vol. 4, tab 152, attach. 11) 20. The record reflects that the defective piers were identified and repairs were commenced (supp. R4, vol. 26, tab 383 at 10176). The parties attempted to resolve the issues, which culminated in a handwritten settlement agreement dated 6 May 2011. This agreement, which was signed by appellant and the Corps, was "Subjectto Availability ofFunds." (Supp. R4, vol. 40, tab 776) However, it was later determined that funding was not available for the entire amount (tr. 5/51). The parties reentered into negotiations and, on 17 June 2011, settled other issues viaModification No. P00032, while reserving the pier claim (supp. R4, vol. 38, tab 6). 21. On 19 September 2011, appellant filed a claim with the contracting officer (CO) in the amount of$4,769,979 which appellant believed it was due because of"the Government's defective pier design and ensuing constructive changes to Balfour Beatty/S&P's contractual obligations with respect to the piers both during the original pier construction and the repair ofconditions thatthe Government considered defective" (R4, vol. 4, tab 152). 22. By letter dated 6 December 2011, the CO informed appellant that she had received the claim and expected to issue a decision on orbefore 28 February 2012 (notice ofappeal, ex. 1 ). 23. By letter dated 4 April 2012 appellant filed a notice ofappeal with the Board on a deemed denial basis, due to the CO's failure to issue a final decision on the aforementioned claim by 28 February 2012. The appeal was docketed as ASBCA No. 58067. 24. Atthe hearing, appellant offered the expert testimony ofMr. Edward Ulrich, P.E. He was qualified without objection as an expert in soil mechanics and foundation engineering with a special expertise in drilled piers (tr. 1/60). He opined that the pier sonotube detail shown in the project drawings was not buildable in one continuous pour without a coldjointbelow the ground surface underthe conditions ofwater and mud behind the temporary casings. Also, he concluded that the Corps improperly rejected the use ofa crane to positionthe rebar during the process ofpouring the concrete piers. This refusal, he concluded, created many ofthe issues uncovered. (Supp. R4, vol. 40, tab 775)

1425. The government offered experttestimony* ofRobert Brehm, Ph.D., P.E., ChiefExecutive Officer ofConstruction Analysts, LLC (CA), a construction management and consulting firm (supp. R4, vol. 39, tab 711). Dr. Brehm has over 40 years ofexperience in construction engineering including private industry and academia (tr. 6/22). Appellant objected to his qualifications as an expert, contending "[s]implybeing a civil engineer or having years ofconstruction management experience does not give him the necessary expertise or qualifications to give opinions onthe drilled pierissues that are involved in this case" (tr. 6/21). The Corps countered that Dr. Brehmhas extensive experience in the construction industry and has taught the concepts that are being applied bypeople working in the industry who apply those same means and methods he teaches in the classroom. The Board, upon consideration ofthe depth and breadth ofconstruction experience, allowed Dr. Brehm to offer expert testimony in the instant appeal (tr. 6/23). 26. Dr. Brehm offeredthe following summary ofopinions and conclusions in pertinentpart: 1. CA opines that the design requirements established by the USACE in the contract documents are consistent with standard industry practice and buildable inthe geotechnical conditions at Lackland AirForce Base, SanAntonio, Texas. Further, he concludes that appellant "failedto perform the work onthe drilled concrete caissonpiers in reasonable conformance withthe contract documents and demonstrated a lack ofquality control to ensure compliance as required by the contract documents and standard industry practice. (Supp. R4, vol. 39, tab 711) With regard to the issue ofthe allowance ofa coldjoint, he testified that a monolithic pourwould have flushed outthe contaminants from the concrete due to the fact that the concrete used was denser than the water. As the concrete was pumped into the pier cavity, the heavier concrete would essentially cause the waterto rise to the top and ultimately flushed out atthetop (see tr. 6/30-33). Moreover, with regard to using a crane to stabilize the rebar cage he testified that it is not industry practice to hold the rebar cage to ensure vertical alignment while concrete is beingplaced. He further added that the lack ofconcrete coverage aroundthe rebar cage was more than likely due to the failure to maintain theplumbness ofthe cage resulting from improperly installed spacers. (Tr. 6/43) We find this testimony persuasive.

*The government also offered Mr. William Manginelli as an expert in delay analysis (tr. 4/129). As this decision denies the appeal in its entirety, the Board need not consider his testimony in relation to the instant appeal.

1527. Based on the facts in the record, as presented atthe hearing and Mr. Ulrich's lack ofanalysis contained in his report, we find that Mr. Ulrich's testimony was not as persuasive as that ofDr. Brehm. DECISION Bothparties acknowledge that several ofthe piers were defective and not compliant with the contract specifications. However, the parties disagree as to which bears responsibility for these defects and ultimately should bear the cost burden ofthe subsequent repairs. Under the applicable contract clause (finding 3), the contractor is liable for defects in workmanship, unless the deficiencies were caused by defects in government-furnished materials or design. Appellant contends thatthe government restricted its means and methods of completing the work according to the specifications contained in the contract. Specifically, appellant avers: (1) despite the contract allowing coldjoints in the pier installation (Section 31 63 26, Drilled Caissons, Part3.2(b)), the government arbitrarily did notpermit coldjoints; (2) the government's decision to bar appellant from stabilizing the rebar cages with cranes during the concrete pour operations caused misalignment of the rebar cages and poorconcrete coverage on the completedpiers; and (3) the government's prohibition on reliefhole excavations to expunge contaminates from the piers priorto placingthe sonotubes contributed to the poor concrete in the pier extensions. Additionally, appellant argues that the government did not prove that appellant's faulty workmanship or lack ofquality control caused the pierdefects. (App. br. at 30-37) The government contends, inter alia, that appellant failed to comply with many ofthe contractrequirements, including: (1) failure to control water at the site; (2) pre-drilling several ofthe piers in violation ofthe express provisions to the contrary; (3) installing rebar cages that did not extend the full depth ofthe drilledpier; (4) the usage ofplastic wheels as spacers on the rebar cages rather than concrete sleds they proposed and the Corps accepted, and these plastic spacers broke offor bent during the placement ofthe rebar cages inside the piers thus failing to keep the cages plumb and the requisite 3 inches away from the side ofthepier; (4) failure to flush contaminants (soil and/orwater) out ofthe pier concreteproperly; (5) misplaced dowels outside ofthe rebar cage rather than withinthe cages in accordance with the contractrequirements; and (6) failure to ensureproper quality control overthe pier excavations and concrete placement. (Gov'tbr.passim) It is well settled that when governmentplans or specifications specify, in design detail, the precise manner or method ofperformance, the government impliedly warrants a satisfactory performance result iftheplans and specifications are followed. UnitedStates v. Spearin, 248 U.S. 132 (1918). This implied warranty, however, only

16runs to contractors that comply withthe plans and specifications. AlJohnson Construction Co. v. UnitedStates, 854 F.2d 467, 469 (Fed. Cir. 1988). As the claimant, the burden is onthe contractorto prove that it complied with the plans and specifications and that despite compliance, defective workresulted. Maecon, Inc., ASBCANo. 31081, 89-2 BCA

### iJ 21,855 at 109,945. Here the record shows numerous instances ofQC failures and we found that appellant failed to maintain an adequate quality control system (finding 17). Moreover, appellant did not comply with the plans and specifications, particularly with regard to the rebar cage, thus creating piers out ofplumb and the rebar notproperly aligned withinthe concrete (finding 6). With regard to the contract interpretation issue regarding the use ofa coldjoint, we found that the government's engineering concerns and ultimately allowing a coldjoint above grade were reasonable (finding 11). Moreover, the government's expert gave a more plausible reason for the pier defaults that we found persuasive (finding 27). Thus appellant failed to meet its burdentoprove that the defects were duetothe government's plans and specifications and/or actions.

·In light ofour decision we need not consider appellant's claim for a time extension due to government-caused delay. CONCLUSION Accordingly, the appeal is denied. Dated: 1 September2015

I concur 

### 0 Administrative Judge Armed Services Board ofContractAppeals I concur

4. :

# ~**5----~.L-------'---------** MARK.N.

# STEMPL~ RICHARD SHACKLEFORD Administrative Judge Administrative Judge Acting Chairman Vice Chairman Armed Services Board Armed Services Board ofContractAppeals ofContractAppeals

17I certify that the foregoing is a true copy ofthe Opinion and Decision ofthe Armed Services Board ofContractAppeals in ASBCANo. 58067, Appeal of Balfour/S&P Two, A Joint Venture, rendered in conformance with the Board's Charter. Dated:

18 JEFFREY D. GARDIN Recorder, Armed Services Board ofContractAppeals