ARMED SERVICES BOARD OF CONTRACT APPEALS 

Appeal of -- ) 

) 

Balfour/S&P Two, A Joint Venture ) 

) 

Under Contract No. W9126G-09-C-0054 ) 

APPEARANCE FOR THE APPELLANT: 

APPEARANCES FOR THE GOVERNMENT: 

ASBCA No. 58067 

Douglas L. Patin, Esq. 

Bradley Arant Boult Cummings LLP 

Washington, DC 

Thomas H. Gourlay, Jr., Esq. 

Engineer Chief Trial Attorney 

Jane Holt-Duecaster, Esq. 

Engineer Trial Attorney 

U.S. Army Engineer District, Ft. Worth 

OPINION BY ADMINISTRATIVE JUDGE WILSON 

This appeal arises from the denial of a claim for costs associated with 

performing remedial work to correct alleged deficiencies in drilled concrete foundation 

piers due to alleged defective specifications and the government preclusion of 

appellant's means and methods to complete construction. A six-day hearing was held 

in San Antonio, Texas, on entitlement only. The parties have submitted post-hearing 

and reply briefs. The Board has jurisdiction over this matter pursuant to the Contract 

Disputes Act of 1978 (CDA), 41 U.S.C. §§ 7101-7109. For the reasons stated below, 

we deny the appeal. 

FINDINGS OF FACTS 

1. On 17 September 2009, the United States Army Corps of Engineers, 

Fort Worth District (Corps or government), awarded Contract No. 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 in the joint venture were Balfour 

Beatty and Satterfield & Pontikes, JV (supp. R4, vol. 10, tab 168). The contract was for 

the construction of the Airmen Training Complex Dormitory 1, at Lackland Air Force 

Base (Lackland AFB), in San Antonio, Texas. This project, which was the first 

dormitory to be constructed out of eight identical dormitories, was part of a larger 

program at Lackland AFB called the Airman Training Complex (ATC). The contract 

performance period was 730 days from receipt of the Notice to Proceed (NTP). (R4, 

vol. 1, tab 4) The contract included a structural design for the foundation that consisted 
of 136 reinforced drilled piers (also referred to as drilled caissons) installed to a depth of 

approximately 65 feet below grade (R4, vol. 2, tabs 13-19). The relevant contract 

drawings required that the upper section of each pier be installed using a sonotube, which 

is a round cardboard formwork (akin to a giant cardboard paper towel 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 of Bids 

Base the bid on the number and total length of caissons, 

established by top and bottom elevations and 

diameters.... The Contractor will not receive payment 

for rejected caissons or for those not conforming to 

specifications. 

1.7 SEQUENCING 

1. 7 .1 Caisson Excavation 

Perform excavation of caissons or groups of caissons 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 of Section 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 61 SM Grade 60, welded into cages in 

accordance with AWS Dl . 4/Dl . 4M and inserted 

securely in the caissons, in position and alignment, as 

shown, prior to concrete placement. 

2.1.3 Casing Steel 

... Provide casings with an outside diameters [sic] not 

less than indicated shaft sizes and a minimum of 114 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, if it becomes necessary to interrupt placing 

concrete in any caisson. Prior to placing additional 

concrete, clean surfaces of laitance and slush with one3 
to-one portland cement grout, having a water-cement 

ratio not exceeding that of the 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. And then once placed inside the hole, the auger 

action goes inside and continues the drilling until it gets to 

what's called the proper bearing depth. 

And once it reaches a certain resistance that is 

acceptable to the Government's geotechnical 

representatives it's considered proper to begin the 

placement of concrete. 

(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 

excavation bottom, to the extent possible prior to concrete placement." The applicable 

contract provisions further state: 

The maximum permissible depth of water is 2 inches. In 

the event of a severe water condition that 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 contained the following Federal Acquisition Regulation clauses 

in pertinent part: 

52.236-5, MATERIAL AND WORKMANSHIP (APR 1984) 

4 
( c) All work under this contract shall be performed in a 

skillful and workmanlike manner. The Contracting Officer 

may require, in writing, that the Contractor remove 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 .23 6-21, 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 of like effect as if shown or 

mentioned in both. In case of difference between drawings 

and specifications, the specifications shall govern. In case 

of discrepancy in the figures, in the drawings, or in the 

specifications, the matter shall be promptly submitted to 

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 

work performed 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 

5 
consents to accept the work with an appropriate adjustment 

in contract price. 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 work performed under this contract 

conforms to the contract requirements and is free of any 

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 of this clause .... 

(i) Unless a defect is caused by the negligence of the 

Contractor or subcontractor or supplier at any tier, The 

Contractor shall not be liable for the repair of any defects 

of material or design furnished by the Government nor for 

the repair of any 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 
5. 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. By transmittal dated 1 December 2009, appellant submitted its shop 

drawings for the piers, which included the "TYPICAL PIER REINFORCING 

SUPPORT DETAIL" and proposed the usage of"3" CONCRETE MACON PIER 

BOLSTER (3 -PCS. PER CAGE)" and "PIER SLEDS" to secure the rebar cage 

inside the concrete piers in the alignment and position shown on the drawings in order 

to meet the contract requirement that the rebar cage have at least 3 inches of concrete 

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 of concrete (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 of the 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 of the pier 

above grade from being installed prior to placement of the 

concrete and removal of the casing. This would require 

that concrete be placed up to 5'0" below grade elevation, 

casing completely removed, reinforcing steel pier ties 

above grade installed, sonotubes cut to correct length, 

sonotubes set, formed, plumbed, and elevations marked, 

then a continuation of concrete placement. This work 

would have to be performed in an amount of time to not 

create an unintentional cold joint in the pier. 

Logistically this will be difficult to achieve and will 

significantly decrease the production of pier placement. 

We propose that a construction joint in the piers be 

designed and located at or near the grade elevation and the 

7 
extension of the piers above grade be formed and placed 

the following day. 

Please advise if this will be acceptable. 

The Corps responded on 30 December 2009 stating: "Place the construction joint at 5 

feet below grade. Form the top tiers with sonotube per Detail 6/B-S502." This 

response was sent by Yijie Qiang, Senior Design Engineer. (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 cold joint 

3' above grade on the piers. The government considers this to be a clarification of the 

contract requirements, it does not constitute a change to the contract and does not 

require a change to the cost or time." 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 1 ATC project (tr. 2/172). Mr. McCall was the lead QAR for 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 Senior Design Engineer 

Qiang). Mr. McCall added: 

The contractor is voicing concern about the potential of 

water and mud being at the top of the concrete 5' below 

grade making it very difficult to clean off. If the concrete 

was brought to grade then the water and mud would not be 

an issue. Pat Finley said that this was a Corp detail and he 

did not want to very [sic] from it without your input. 

Mr. McCleskey replied, by email dated 14 January 2010 (9:21 am) as follows: 

I'm not sure I understand what the contractor's issue is. 

Typically, they should drill the pier, using casing to seal 

off any groundwater or sloughing materials from the walls 

of the excavation. They would then underream and 

cleanout the pier with their belling tool, and, once 

approved by us (USACE COR), install their rebar cage 

into the pier hole. Next they would place their concrete to 

near the surface. Lastly, they would seat the sonotube 

8 
within the uppermost part of the pier, per our detail (i.e., 

with sonotube placed within the upper 5 feet of pier to 

ensure the formed concrete at the top of the pier is 

cylindrical in shape .... 

If they use the sonotube, per the contract drawings, I see no 

reason why they can't place the pier concrete to the 

elevation indicated on the structural drawings (i.e., there 

should be no reason why they would have to stop pier 

placement below grade). 

Therefore, their requested deviation should be refused. 

(R4, vol. 2, tab 31) 

10. Mr. McCall replied via email at 1:30 pm on the same day, which read as 

follows: 

The question is how hard is it to place the sonotube once 

the casing is removed and maintain a continuous column of 

concrete in the pier without having a cold joint at the 

bottom of the sonotube, especially since the top of the 

son[ o ]tube in some cases is 8' above the dirt grade? 

Pat Finley's [the designer of record] response would leave 

us to believe that a cold joint is permissible at this point, do 

you concur with his response? If you do concur then what 

is the recommended method for cleaning the top of the 

concrete to avoid having compressible materials at the cold 

joint? 

Mr. McCleskey responded by email also on the same date, stating in pertinent part: 

There shouldn't be an issue removing the casing and 

placing the sonotube and remaining concrete. The entire 

operation of placing the concrete to near the top of the 

casing, removing the casing ... placing the sonotube, and 

completing concrete placement should take less than 30 

minutes on a typical pier. Properly done, this should be a 

*continuous* operation .... 

9 
So, to reiterate, I advise that we refuse the contractor's 

proposed deviation. The piers should not be constructed 

with a cold joint, and, following the typical/common 

practice drilled pier construction procedure outlined above, 

a cold joint 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 construction process and 

a significant number of piers that had to be drilled at least twice prior to completion 

(supp. R4, vol. 26, tabs 349-83). By email dated 18 January 2010, Mr. McCall 

communicated to 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 of the conversation was to discuss means and 

methods of installation of the son[ o ]tube extinctions [sic] 

for the piers. Pat reported that he would accept a joint in 

the columns that extend the 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 and places the concrete in 

a simultaneous pour once the pier casing is removed, this 

would avoid a cold joint below grade in the pier. This 

removes the contractor[']s constructability issues with 

having mud and water in the piers .... 

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 that the 

Corps decision to allow the use of a cold joint 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 of pier drilling operations. In his detailed memorandum for 

the record, he observed the excavation of 3 piers, designated as C-3, C-4, and D-5. 

Several issues arose including: 1) concrete slump was initially 3 inches, later 

corrected by adding water to 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 of the undersigned that 

these issues are primarily attributable to the "first day" lack 

of familiarity with the site-specific subsurface conditions. 

Drilling efficiency and pier 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 of basic drilling principles in areas of 

known water-bearing sloughing materials.... It should be 

noted that the subsurface conditions encountered on the 

date of the inspection were very similar to those described 

in the logs of borings included in the USACE Foundation 

and Pavement Design 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 Dugger was performing the work of the SSHO, the 

Superintendent, and the QC. As per the terms of the 

contract, the SSHO is only to have the duties of the SSHO. 

Further, during the placement of one of the piers, I had to 

stop work before the concrete could be placed in the 

sonotube because it was visibly obvious that the sonotube 

was out of plumb. Upon checking the sonotube, I found 

that the sonotube was several inches out of plumb. I asked 

to have the pier corrected and it was brought to within the 

tolerances described in the specifications .... 

11 
If you intend to continue working the hours that you 

worked yesterday, then you also need to provide adequate 

Quality Control and Superintendence to ensure that the 

work being done meets the contract requirements, and to 

allow the SSHO to perform his work without interruption 

or distraction. 

(R4, vol. 3, tab 130) 

14. Appellant responded via email on 19 March 2010 indicating that several 

representatives were on site and that "[t]he piers in question will be checked and dealt 

with accordingly" (R4, vol. 3, tab 133). 

15. On 20 March 2010, QAR Alley forwarded via email a spreadsheet to 

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 what the 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 of the concrete. 

3. Concrete in piers does not meet contract 

requirements. 

4. [H]ook bars in perimeter beam and slab were tied to 

the inside of the reinforcement cages and not 

outside as per the details[.] 

5. The required number of dowels between the Pier 

Cap in Area A and the surrounding slab has not 

been provided. 

Additionally, appellant was directed to submit proposals for the methods of evaluation 

to the Corps for review. After acceptance of the proposed testing methods, appellant 

was required to test and document the condition of all of the piers. For those piers 

found to be deficient, appellant was to submit a repair plan to the Corps for approval. 

Upon approval, appellant was further directed to treat the repair work as "a new 

feature of work, and will require a full preparatory meeting, initial inspection, and 

follow-up inspections." Finally, in addition to indicating that appellant's quality 

12 
control had been lacking, the Corps concluded that appellant's performance had been 

unsatisfactory. (R4, vol. 3, tab 149) 

17. By letter dated 19 May 2010, appellant replied to the Corps' 12 May 2010 

letter indicating that it had taken immediate action on the issues. First, appellant fired 

its structural quality control inspector "due to a systemic failure of enforcing the 

appropriate quality control measure required for this project." Appellant reported that 

it was bringing on a new QC inspector with significant experience as well as using the 

general superintendent to "take an active and increased role to monitor and control the 

quality control department." With regard to the other issues, pier plumbness and 

location, underground pier plumbness, poor concrete, pier rebar cover and length, open 

piers, and other problems, appellant proposed a "MOVE FORWARD PLAN" as 

follows: 

1. Refine method to identify and fix deficient issues. 

a. Utilizing the pachometer we will 

1) Locate rebar depth, top and bottom at 

above grade pier extension 

2) Locate top of pier cage reinforcing 

b. Core and perform penetration test (Windsor 

Probe) on a sampling of pier extensions as 

identified by our third party engineer to 

verify concrete strength 

c. Excavate 5' below grade at piers Jll, F12 and 

K 10 identified by our third party engineer to 

inspect and test below grade concrete. 

2. Submit identification and fix process to USACE for 

approval. 

3. Proceed with identification and fix. 

(R4, vol. 3, tab 150) Based upon 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 had not been received and that until a new 

structural QC qualified per Specification § 01 45 01 had been submitted and approved, 

no further work on "structural functions" of the 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 of the foundation construction 

13 
issues. Appellant conveyed Mr. Ulrich's findings that "most of the conditions 

observed in the piers are inherent in the USACE's design and instructions and its 

denial of Balfour/S&P's request to modify the design in RFI 0035, and as such, could 

not reasonably have been avoided under the circumstances." Thus, appellant put the 

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 "Subject to 

Availability of Funds." (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 via Modification 

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 of conditions that the 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 or before 28 February 2012 

(notice of appeal, ex. 1 ). 

23. By letter dated 4 April 2012 appellant filed a notice of appeal 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. At the hearing, appellant offered the expert testimony of Mr. 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 cold joint below the ground surface under the conditions of water and mud behind 

the temporary casings. Also, he concluded that the Corps improperly rejected the use of a 

crane to position the rebar during the process of pouring the concrete piers. This refusal, he 

concluded, created many of the issues uncovered. (Supp. R4, vol. 40, tab 775) 

14 
25. The government offered expert testimony* of Robert Brehm, Ph.D., P.E., 

Chief Executive Officer of Construction Analysts, LLC (CA), a construction 

management and consulting firm (supp. R4, vol. 39, tab 711). Dr. Brehm has over 40 

years of experience in construction engineering including private industry and 

academia (tr. 6/22). Appellant objected to his qualifications as an expert, contending 

"[ s ]imply being a civil engineer or having years of construction management 

experience does not give him the necessary expertise or qualifications to give opinions 

on the drilled pier issues that are involved in this case" (tr. 6/21 ). The Corps countered 

that Dr. Brehm has extensive experience in the construction industry and has taught 

the concepts that are being applied by people working in the industry who apply those 

same means and methods he teaches in the classroom. The Board, upon consideration 

of the depth and breadth of construction experience, allowed Dr. Brehm to offer expert 

testimony in the instant appeal (tr. 6/23). 

26. Dr. Brehm offered the following summary of opinions and conclusions in 

pertinent part: 

1. CA opines that the design requirements established 

by the USACE in the contract documents are 

consistent with standard industry practice and 

buildable in the geotechnical conditions at Lackland 

Air Force Base, San Antonio, Texas. 

Further, he concludes that appellant "failed to perform the work on the drilled concrete 

caisson piers in reasonable conformance with the contract documents and 

demonstrated a lack of quality 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 of the allowance of a cold joint, he testified that a monolithic pour would 

have flushed out the 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 water to rise to the top and ultimately 

flushed out at the top (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 being placed. He further added that the 

lack of concrete coverage around the rebar cage was more than likely due to the failure 

to maintain the plumbness of the 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. 

15 
27. Based on the facts in the record, as presented at the hearing and Mr. 

Ulrich's lack of analysis contained in his report, we find that Mr. Ulrich's testimony 

was not as persuasive as that of Dr. Brehm. 

DECISION 

Both parties acknowledge that several of the 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 of the 

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 that the 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 cold joints in the pier 

installation (Section 31 63 26, Drilled Caissons, Part 3 .2(b) ), the government arbitrarily 

did not permit cold joints; (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 poor concrete coverage on the completed piers; and (3) the 

government's prohibition on relief hole excavations to expunge contaminates from the 

piers prior to placing the 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 of quality control caused the pier defects. (App. br. at 30-37) 

The government contends, inter alia, that appellant failed to comply with many 

of the contract requirements, including: (1) failure to control water at the site; 

(2) pre-drilling several of the piers in violation of the express provisions to the 

contrary; (3) installing rebar cages that did not extend the full depth of the drilled pier; 

( 4) the usage of plastic wheels as spacers on the rebar cages rather than concrete sleds 

they proposed and the Corps accepted, and these plastic spacers broke off or bent 

during the placement of the rebar cages inside the piers thus failing to keep the cages 

plumb and the requisite 3 inches away from the side of the pier; ( 4) failure to flush 

contaminants (soil and/or water) out of the pier concrete properly; (5) misplaced 

dowels outside of the rebar cage rather than within the cages in accordance with the 

contract requirements; and (6) failure to ensure proper quality control over the pier 

excavations and concrete placement. (Gov't br. passim) 

It is well settled that when government plans or specifications specify, in design 

detail, the precise manner or method of performance, the government impliedly 

warrants a satisfactory performance result ifthe plans and specifications are followed. 

United States v. Spearin, 248 U.S. 132 (1918). This implied warranty, however, only 

16 
runs to contractors that comply with the plans and specifications. Al Johnson 

Construction Co. v. United States, 854 F.2d 467, 469 (Fed. Cir. 1988). As the 

claimant, the burden is on the contractor to prove that it complied with the plans and 

specifications and that despite compliance, defective work resulted. Mae con, Inc., 

ASBCA No. 31081, 89-2 BCA iJ 21,855 at 109,945. 

Here the record shows numerous instances of QC 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 of plumb and the rebar not properly aligned 

within the concrete (finding 6). With regard to the contract interpretation issue 

regarding the use of a cold joint, we found that the government's engineering concerns 

and ultimately allowing a cold joint 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 burden to prove 

that the defects were due to the government's plans and specifications and/or actions. 

· In light of our 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 September 2015 

I concur 

0 

Administrative Judge 

Armed Services Board 

of Contract Appeals 

I concur 

4. : ~ 5----~.L-------'--------- MARK. N. STEMPL~ RICHARD SHACKLEFORD 

Administrative Judge Administrative Judge 

Acting Chairman Vice Chairman 

Armed Services Board Armed Services Board 

of Contract Appeals of Contract Appeals 

17 
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. 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 of Contract Appeals