ARMED SERVICES BOARD OF CONTRACT APPEALS

OPINION BY ADMINISTRATIVE JUDGE STINSON 

 Appellant Trade West Construction, Inc., (Trade West or TWC), appeals a 

contracting officer’s denial of its October 21, 2016, claim, in the amount of $304,062, 

for shaping armor stone prior to placing it on top of an existing jetty. Trade West 

argues that the government wrongfully rejected the armor stone it wished to use, 

thereby forcing it to spend time and money shaping armor stone to make it acceptable 

to the government (R4, tab 3).1

 We have jurisdiction pursuant to the Contract Disputes 

Act of 1978, 41 U.S.C. §§ 7101-7109. We previously denied the parties’ cross-motions 

for summary judgment, finding triable issues of fact which could not be resolved on 

summary judgment. Trade West Construction, Inc., ASBCA No. 61068, 20-1 BCA 

¶ 37,713 at 183,076 (Trade West I). The parties agreed to submit this appeal on the 

record, pursuant to Board Rule 11, for a decision on entitlement only. Each party 

submitted initial and responsive briefs. For the reasons set forth below, we deny the 

appeal. 

FINDINGS OF FACT 

 1. On September 25, 2015, the United States Army Corps of Engineers 

(USACE), South Atlantic Division, Wilmington District (SAW) awarded Trade West 

Contract No. W912PM-15-C-0024 (the Contract), in the amount of $3,294,362, for 

1

 The government’s initial Board Rule 4 file was submitted in paper form and included 

tabs marked 1 through 5.10. The government’s joint supplemental Rule 4 file 

was submitted electronically and included tabs marked 006 through 090. 

Appeal of - )

)

Trade West Construction, Inc. ) ASBCA No. 61068

)

Under Contract No. W912PM-15-C-0024 )

APPEARANCES FOR THE APPELLANT: Karl Dix, Jr., Esq. 

Lochlin B. Samples, Esq. 

 Smith, Currie & Hancock LLP 

 Atlanta, GA

APPEARANCES FOR THE GOVERNMENT: Michael P. Goodman, Esq.

 Engineer Chief Trial Attorney

David C. Brasfield, Jr., Esq.

Carl E. Pruitt, Jr., Esq.

 Engineer Trial Attorney

 U.S. Army Engineer District, Mobile
2 

South Jetty repairs to the Masonboro Inlet located in New Hanover County, North 

Carolina (R4, tab 4.1 at 126, 132-133; Joint Statement of Stipulated Facts (JSSF) 1).2

 

The Contract required placement of armor stone, each weighing from 14 to 22 tons, 

onto an existing jetty, insuring that the armor stone “form a compact mass and interlock 

with each other and the existing stones” (R4, tab 4.1 at 134, 298; JSSF 1). 

Contract Specifications 

 2. The Contract included specifications for “Exterior Improvements,” 

Section 32 05 00.38, entitled “Stone.” Contained within that section was Part 1, 

“General,” Part 2, “Products,” and Part 3, “Execution.” (R4, tab 4.1 at 293; JSSF 2) 

 3. Part 1.1, entitled “Scope,” provided, “[t]he work under this section shall 

include all plant, labor, materials, work surface, and equipment required for the 

furnishing, transportation, storage, and placing of stone as shown on the drawings” (R4, 

tab 4.1 at 294; JSSF 3). 

 4. Part 2.1, entitled “Materials,” included Part 2.1.1, “Granite/Gneiss,” which 

provided, in part, “stone shall be furnished in random sizes ranging in weight as 

indicated in the subparagraph ‘Stone Size and Gradations’” (R4, tab 4.1 at 296). 

 

 5. Part 2.1.2, entitled “Armor Stone,” provided, in part: 

Stone shall consist of fresh, sound, hard, dense, durable, 

crystalline igneous or metamorphic rock which shall be 

separated from bedrock by quarrying. The stone shall be of 

such quality that the individual stone integrity and 

permanence within the jetty is assured under all conditions 

to which it is subjected. 

 . . . . 

The stone shall be free from open or incipient cracks, joints, 

seams, fissures and structural planes of weakness which 

might contribute to spalling or breakdown from; handling 

and placing, freeze-thaw cycles, wet-dry cycles, or from 

wave action. The stone shall be furnished in blocky and 

angular shapes. Flat stones, tabular stones, slabs, boulders 

and parts of boulders will be rejected. No stone will be 

2

 The parties’ JSSF in large part mirrors the Statement of Facts set forth in our previous 

decision. Trade West I at 183,067-75. 
3

permitted which has a longest dimension that is three times 

(3X) or greater, than its least dimension.

(R4, tab 4.1 at 296; JSSF 4)

6. Part 2.1.3, entitled “Stone Size and Gradations,” provided “[f]or the 

granite/granite gneiss armor stone, the specified weight range shall be 14.0 tons to 

22.0 tons with 75% weighing more than 18.0 tons” (R4, tab 4.1 at 297; JSSF 5).

7. Part 2.1.4, entitled “Stone Sources,” provided:

The source(s) from which the Contractor proposes to obtain 

stone materials as required for these specifications shall be 

selected and identified to the Contracting Officer or his/her 

designated representative within 15 days of receipt of 

Notice to Proceed. This source(s) shall be inspected by a 

Corps of Engineers Geologist. The stone source(s) shall 

provide test results of ASTM D5312/D5312M and ASTM 

D5313/D5313M and records of successful use on similar 

projects. . . . The tests shall include; bulk specific gravity, 

saturated surface dry (SSD) unit weight, absorption (all 

three tests as per ASTM C127), abrasion, wetting and 

drying (ASTM D5313/D5313M), and freeze-thaw (ASTM 

D5312/D5312M). The results of the testing shall be 

submitted to the Contracting Officer or his/her designated 

representative for review and approval at least 30 days prior 

to being shipped to the construction site.

(R4, tab 4.1 at 297; JSSF 6)3

8. Part 2.1.5, entitled “Stone Not Meeting The Specifications,” provided, in 

part:

If, during the progress of the work, it is found that the stone 

being furnished and/or placed by the Contractor does not 

meet all the requirements of the specifications, the 

Contractor shall furnish other stone of a quality acceptable 

3 ASTM (American Society for Testing and Materials), now known as ASTM 

International, is a “standards organization that develops and publishes voluntary 

consensus technical standards for a wide range of materials, products, systems, 

and services.” Harry Pepper and Assoc., Inc., ASBCA No. 62038, et al., 21-1 

BCA ¶ 37,760 at 183,306 n.2.
4

to the Contracting Officer or his/her designated 

representative. Any stone rejected at the site of work as not 

meeting the requirements of these specifications for quality, 

condition, size, or otherwise, shall be removed from the site 

by and at the expense of the Contractor.

(R4, tab 4.1 at 297; JSSF 7)

9. Part 3.2, entitled “Placement of Stone,” included Part 3.2.1, “General,” which 

provided:

Care shall be taken to place the stone so that they will form 

a compact mass, and form as nearly as practicable a 

cross-section of the height, width, and slopes as shown on 

the contract drawings. All stones shall be carefully placed 

so as to form a compact mass and to minimize the voids 

between them. Special care shall be taken during placement 

of stone to avoid damaging the existing sheetpile wall.

(R4, tab 4.1 at 298; JSSF 8)

10. Part 3.2.4, entitled “Armor Stone Placement,” provided:

Armor stone shall be placed in a single layer to achieve the 

design cross sections and top elevation, as shown on the 

drawings. Begin placement of the stone at the toe of the 

placement limits and work upslope to reduce the risk of 

stone rolling and launching. Dropping of stones onto the 

structure is strictly prohibited. Each armor stone shall be 

lowered to rest before being released and shall be placed to 

the satisfaction of the Contracting Officer or his/her 

representative. All stones shall be carefully placed so as to 

minimize the size of voids between them. The armor stones 

of various sizes and shapes shall be distributed such that 

they form a compact mass and interlock with each other and 

the existing stones.

(R4, tab 4.1 at 298; JSSF 9)
5

11. Part 3.3, entitled “Quality Control,” included part 3.3.1, “General,” which 

provided:

The Contractor shall establish and maintain quality control 

for the armor stone and all other operations in connection 

therewith to assure compliance with contract requirements. 

The Contractor shall inspect for compliance with contract 

requirement and record the inspection of all operations, 

including but not limited to the following:

a. Armor stone complies with the specifications for quality 

and weight and is placed to the lines and grades shown in 

the drawings within allowable tolerances.

b. All stone placed in a dense compact mass.

(R4, tab 4.1 at 298-99; JSSF 10)

12. Note 2 on Contract Drawing CN101 provided, “[t]he intent of the project is 

to provide one new layer of armor stone within the approximate armor stone placement 

limits area shown” (R4, tab 8 at 4; JSSF 11).

13. Contract Drawing CN301 included the following drawing/plates:
6 

(R4, tab 8 at 5) Note 4 on Contract Drawing CN301 provided, in part: 

Armor stone shall be placed to achieve the design cross 

sections and top elevation, as shown on plates CN301 thru 

CN308. Stone shall be placed in a single layer within the 

horizontal and vertical limits shown. No stone shall be 

placed so as to exceed the vertical tolerance of plus 2’ 

above elevation 1.0’ NAVD 8. Please note, the stones 

depicted on the typical cross sections, as well as the cross 

sections themselves, are merely general representations, and 

do not mandate the size of the stone to be utilized. They are 

only intended to be a general example of proper stone 

placement. 

(R4, tab 8 at 5; JSSF at 12) 

 

Notice to Proceed/Selection of Armor Stone from Fountain Quarry 

 

 14. Modification No. P00001 to the Contract issued the Notice to Proceed, 

effective November 24, 2015, and established a Contract completion date of 

May 22, 2016 (R4, tab 4.2 at 440-43; JSSF 15). 

 

 15. On November 24, 2015, Andy Leavitt, Trade West’s Project 

Superintendent, requested a site meeting at the Martin Marietta Fountain Quarry 

(Fountain Quarry) with USACE geotechnical personnel to view armor stone proposed 

for use on the project (R4, tab 25).

 

 16. On December 28, 2015, the government notified Trade West “that the rock 

submitted and inspected at the quarry is acceptable for use on the subject project” (R4, 

tab 27 at 1). Appellant proposed no supplier of armor stones other than Fountain 

Quarry, although appellant had communicated with other quarries about providing 

armor stone for the project (R4, tabs 9-13, 15-16, 18-20, 26; JSSF 16). 

Appellant’s Efforts to Locate Other Available Armor Stone Suppliers 

 

 17. By email dated February 10, 2016, Steven Potter, appellant’s Quality 

Control Manager (R4, tab 72 at 2), provided to Rolando Serrano, Project Engineer, 

USACE SAW (R4, tab 84 at 3), a photograph of stone available from another site: 
7 

(R4, tabs 33, 33a1). Mr. Potter asked Mr. Serrano whether the government would be 

interested in using it “along the Jetty,” and stated, “[i]f there are any concerns with the 

shape of the stones we can break off sections of the edges to create a less blocky shape, 

but only if necessary” (R4, tab 33).4

 

 18. On February 19, 2016, Mr. Serrano forwarded Mr. Potter’s email to others 

within the Wilmington District, and, via email dated February 22, was informed by 

James Hargrove, Civil Engineer, USACE SAW (R4, tab 84 at 5), that “[t]he stone 

shown in the photos are flat and tabular and would not comply with our spec 

requirements,” but that “[i]f the contractor is having trouble locating a quarry with 

suitable stone, can we offer recommendations” (R4, tab 35 at 1). 

 

 19. Appellant experienced a slow production rate at Fountain Quarry, and, by 

email dated February 24, 2016, Trade West requested an on-site meeting with the 

government to consider armor stone from a second source. Trade West stated it would 

deliver stone samples to its staging area for the government to review and was 

gathering test reports for review, which would be forwarded to the government “once 

they have been found to meet all the specifications of the contract.” (R4, tab 43; 

JSSF 18) 

 

Stone from Salisbury Quarry

 

 20. Trade West proposed Salisbury Quarry as an alternative source of armor 

stone. The first stone delivery from Salisbury Quarry to the project staging area arrived 

4

 The photograph attached to the email depicted blocks of stone similar to the unshaped 

stone appellant ultimately would offer from a new source, Salisbury Quarry

(compare photo at R4, tabs 33a1, with photos at 44a1-44a4). 
8

on February 24, 2016, with additional shipments between February 25 and 

February 29, 2016 (R4, tab 5.9).

21. By email dated February 24, 2016, to Jon Schave, ATS, Inc., Heavy Haul 

Customer Service, Mr. Leavitt described the stone from Salisbury Quarry, stating “[t]he 

rock is square so it sits flat” (R4, tab 40). Mr. Leavitt included as an attachment to the 

email, a photograph of a flatbed truck with a large rectangular-shaped block of stone 

with a flat face on the four sides pictured:

(R4, tab 40a)

22. The parties met at the project site on February 26, 2016, to discuss the use 

of stone from Salisbury Quarry. By email dated February 26, 2016, Jason Koenig, 

USACE SAW, provided Mitch Hall, Chief, Geotechnical and Dam Safety Section, 

USACE SAW (R4, tab 84 at 5), photographs taken at the meeting of “rock being 

proposed for a large portion of the project,” stating that “[a]side from it looking 

completely different, I expressed concerns over whether the rectangular blocks would 

interlock well with the existing rock and not be susceptible to sliding” (R4, tab 44). 

Mr. Leavitt acknowledged during the site visit that, prior to its delivery to the site, 

Trade West had not submitted to the government a request for approval of the stone 

from Salisbury Quarry (R4, tab 5.9). The four photographs attached to the email depict 

large, flat-sided, rectangular blocks of granite, some bearing the marking 

“SALISBURY PINK” (R4, tabs 44a1-44a4). Representative images are reproduced 

below:
9 

(R4, tab 44a1) 

(R4, tab 44a2) 

 

 23. In a February 29, 2016, email, Mr. Serrano expressed concerns to Mr. Potter 

arising from the February 26, 2016, meeting, stating “it was observed that a rather large 

quantity of rock (flat faced) from the Salisbury quarry had been delivered to your yard 

for which our representatives have strong concerns about. I strongly suggest that TWC 

not continue delivery of rock from an un-approved source.” (R4, tab 46; JSSF 19) 

Attached to Mr. Serrano’s email was a photograph taken on February 24, 2016, which 

also was an attachment to Mr. Koenig’s February 26th email (R4, tabs 44, 44a1, 46a). 

 

Appellant Claims Stone from Salisbury Quarry Meets Contract Specifications 

 

 24. By Serial Letter TWC-0001, dated February 29, 2016, and addressed to 

Contracting Officer Charlene Figgins, USACE SAW (R4, tab 84 at 3), Mr. Potter, 
10

sought “to clarify Trade West Construction’s interpretation of the contract specification 

pertaining to Armor Stone, and why we believe that the blocky and angular stone we 

are proposing to use meets the specification requirements as outlined in the contract” 

(R4, tab 47a at TWC004086; JSSF 20). As support, Mr. Potter cited Contract 

specifications relating to both “Materials” (Part 2.1) and “Placement” (Part 3.2):

Specification Section 32 05 00.38 STONE, paragraph 2.1.2 

Armor Stone, states that “The stone shall be furnished in 

blocky and angular shapes.” After extensive digging into 

what defines a stone as “blocky and angular” we found 

several credible sources, all of which have similar 

definitions. You can see all of the definitions we uncovered 

attached to this letter. We find that “blocky” is best defined 

as “resembling a block in form,” and “angular” is best 

defined as “having one or more angles.” Additionally, the 

USGS interprets “angular” at the granular level as being the 

“opposite of round.” Further search into a definition where 

“blocky and angular” were used in conjunction with one 

another, typically turned up landscaping stones which 

closely resembled the blocky stones we are proposing to 

use, but on a much smaller scale. 

Specification Section 32 05 00.38 STONE, paragraph 3.2.4 

Armor Stone Placement, states that “The armor stones of 

various sizes and shapes shall be distributed such that they 

form a compact mass and interlock with each other and the 

existing stones.” I reference this segment of the 

specifications due to the verbiage pertaining to various size 

and shapes. The stone we are proposing to use consistently 

produces various sizes and shapes with no two stones 

holding the same dimensions, angles or shapes. On 

February 26, 2016, while the COE had representatives onsite, we measured several blocks and found that every 

sample produced its own unique dimensions. 

(Id.) Mr. Potter’s letter also referenced a “mockup” presentation allegedly 

demonstrating the interlocking capability of proposed stone from Salisbury Quarry (id. 

at TWC004087). A copy of that document was provided to the government on 

March 3, 2016 (R4, tabs 55-55a; JSSF 20).

25. Mr. Potter’s letter included an attachment entitled “Key Definitions” (R4, 

tab 47a at TWC004094), as support for his statement that “the USGS [United States 

Geological Survey] interprets ‘angular’ at the granular level as being the ‘opposite of 
11

round’” (R4, tab 47a at TWC004086). The attachment provided, in part, “[t]he 

following excerpt applies to the granular level, but still helps us in discovering the 

many definitions of angular.” Mr. Potter included an excerpt from an USGS website, 

which stated:

GRAIN SHAPE tells us about the mechanical 

weathering history when rocks first break apart, they 

are split into sharp, angular pieces. So most grains start 

out angular. Over time, they get worn smooth by wind, 

water, and other rocks. We classify grains based on their 

"Roundness." Rounded grains have very few sharp edges 

and comers. The opposite of "Round" is "Angular."

The process of breaking rocks apart and smoothing them 

down is called mechanical weathering and usually happens 

when rocks are moved (transported) by forces like wind, 

water, glaciers, or in a landslide. Rounded rocks have been 

exposed to more mechanical weathering; they have traveled 

further, they have been around for longer, or existed in 

areas with more rubbing and abrasion.

(Id.) (bold typeface in original) The attachment also included the Merriam-Webster

Dictionary definition of “angular,” as “having one or more angles” (R4, tab 47a 

at TWC004094, tab 85 at 82 (attach. to June 7, 2019, aff. of Mr. Leavitt).

26. More than 60 stones from Salisbury Quarry were delivered to, and 

stockpiled at, the contractor’s staging area prior to appellant’s submitting to the 

government information required by paragraph 2.1.4 of the specifications and prior to 

the government’s approval of stone from that quarry (R4, tab 5.3 at 493-94, tab 64 at 2, 

tab 69 at 5, tab 77 at TWC000456-57; JSSF 21).

27. In an email dated March 1, 2016, and entitled “Still working on the letter,” 

Mr. Potter informed Mr. Leavitt:

there is one part of the spec that does worry me a bit, and I 

may need your help when I get to it. It is paragraph 3.2.4 

where is [sic] says "The armor stones of various sizes and 

shapes . . ." COE may try to focus on the "various shapes" 

verbiage and say that if all, or the majority of, the stone is 

rectangular/cube like in shape, then the shapes don't vary. 

We need to have a good response to that argument. I don't 

know if just saying that the dimensions of the stones vary 

will be sufficient (i.e. one stone has the dimension of 
12 

5'x6'x8' and another has the dimension of 6'x7'x11'). This 

does cover the various sizes, but not shapes. 

(R4, tab 48) 

 

Government Seeks Opinion from Dr. Jeffrey Melby Regarding Stone from 

Salisbury Quarry

 

 28. By email dated March 1, 2016, Dr. Greg Williams, Chief of Engineering, 

USACE SAW, contacted Dr. Jeffrey Melby, ERD-MS (Engineer Research and 

Development Center, Vicksburg, MS), a government “expert on armor stones,” 

regarding appellant’s request to utilize stone from Salisbury Quarry (R4, tab 49, tab 88 

at 6).5

 Dr. Williams stated that appellant soon would be providing “justification on why 

this stone meets the spec,” and he attached to his email a copy of the Contract stone 

specification, section 32 05 00.38 (R4, tab 49 at 1, tab 88 at 6). Dr. Williams also 

attached photographs depicting the types of stone in place at the South Jetty (one 

photograph), the stones supplied by appellant from Fountain Quarry (three photographs), 

the stones appellant requested to supply from Salisbury Quarry (two photographs, and an 

aerial Google Maps image of the South Jetty’s “current condition”) (R4, tab 49a1 

at 1- 5). The photograph of the South Jetty was taken in June 2011, during a site visit 

for a previous rehabilitation contract, and depicted the South Jetty “to which we are 

adding one layer of armor stone” (R4, tab 49 at 1): 

5

 The government’s proposed finding of fact no. 10 quotes from the declaration of 

Dr. Williams, which indicates Dr. Melby is a “USACE expert on armor stones 

and patent holder for the CORE-LOC armor unit” (gov’t br. at 26). Appellant’s 

reply brief states in response to the government’s proposed finding of fact 

no. 10, that “Trade West does not agree with the opinions expressed by 

Mr. [sic] Williams,” but asserts no objection to Dr. William’s statement 

regarding Dr. Melby’s status, or his opinion. Appellant’s initial Rule 11 brief 

likewise makes no mention of Dr. Melby, or his opinion. Mr. Leavitt’s second 

affidavit, however, suggests that Dr. Melby’s opinion should be discounted 

because he was somehow “coached” by Dr. Williams (R4, tab 90 (June 8, 2021, 

aff. of Mr. Leavitt at 10, ¶ 24)). 
13

(R4, tab 49a1 at 1) The stones in this photograph are of differing shapes, sizes, and 

angles, and do not resemble the rectangular or parallelepiped blocks of stone from 

Salisbury Quarry.

The three photographs of stone from Fountain Quarry, depicted the “initial batch 

of stones [the] contractor was receiving but . . . was worried about meeting the 

gradation requirement” (R4, tab 49a1 at 3). The following photograph is representative 

of the stones from Fountain Quarry:

(R4, tab 49a1 at 4) These stones more resemble the stones depicted in the June 2011 

photograph and do not resemble the rectangular or parallelepiped blocks of stone from 

Salisbury Quarry.
14 

 The two photographs of stone from Salisbury Quarry depict “the latest batch of 

stones (blocks)” (R4, tab 49a1 at 5).6

 The following photograph is representative of the 

stones from Salisbury Quarry: 

(R4, tab 49a1 at 5) 

 

 29. Dr. William’s March 1, 2016, email to Dr. Melby set forth his opinion 

regarding whether stone from Salisbury Quarry met the Contract specifications, stating, 

“our spec allows us to reject this stone because spec Section 2.1.2 (p. 4) says, ‘Flat 

stones, tabular stones, slab, boulders and parts of boulders will be rejected,’” noting 

also that “spec Section 3.2.4 (p. 6) says, ‘The armor stones of various sizes and shapes 

shall be distributed such that they form a compact mass and interlock with each other 

and the existing stones’” (R4, tab 49 at 1). Dr. Williams asked Dr. Melby, “[w]hat is 

your opinion of the stability of these types of stones on a structure with what I would 

call ‘normal’ quarry stone?” (id.). Dr. Williams noted that “[t]his contract is a 2nd 

contract to fill in the template that wasn't filled in from an earlier repair contract (a 

whole nother [sic] stone contracting fiasco), so only a single layer is needed,” and 

stated “[a]ny advice or recommendations you have would be helpful” (id.). 

 

 30. By email dated March 1, 2016, Dr. Melby responded to Dr. Williams, 

stating, “I agree. Cubic stones do not interlock well. Out of spec. Sorry for the terse 

response but I am at sea this week” (R4, tab 50 at 1). 

 

Appellant’s Mockup Comparing Different Types of Armor Stone 

 

 31. Appellant prepared a document dated March 1, 2016, entitled “Mockup of 

Jetty Conditions Location: 1408 Point Harbor Road (Staging Area)” (R4, tab 55a) 

(bold typeface in original). The document included sections entitled “Mockup of 

6

 These photographs are different images of the same stones from Salisbury Quarry that 

appear in the attachments to Mr. Koenig’s February 26, 2016, email (R4, 

tabs 44a1-44a4) (see finding 22). 
15

Jagged Stones Example 1,” “Mockup of Blocky and Angular Stones Example 1,” 

and “Mockup of Blocky and Angular Stones Example 2” (id. at TWC004316, 

TWC004322, TWC004326) (bold typeface in original). 

32. The “Mockup of Jagged Stones Example 1,” included a photograph 

depicting placement of one stone on top of two other stones (id. at TWC004317), 

which, according to Mr. Leavitt, were “stones from the Salisbury Quarry that the Corps 

had previously approved” (R4, tab 85 at 5, June 7, 2019, aff. of Mr. Leavitt):

(R4, tab 55a at TWC004317)

Also included were four photographs of those same three stones, purporting to 

depict the alleged surface area contact between the stones (R4, tab 55a

at TWC004318- 21). Based upon this one example depicting a “jagged stone” placed 

on top of two other stones, the document concluded (1) “the surface area contact 

between these stones is minimal and the left over voids are greater than those produced 

when using more blocky and angular stones,” (2) “[o]n average it was found that only 

3 to 4 edges of the jagged stones made good contact with the surrounding armor 

stone,” (3) “of those connections the surface area very seldom exceeded 4 to 

6 inches,” and (4) “[t]he jagged stones typically formed a bridge across underlying 

voids leaving larger gaps in the structure where the constant tidal actions would have 

access to pushing up on the stones” (id. at TWC004316). The document stated also, 

“[w]hen placing stones at the jetty we will not have the luxury of choosing what stones 

to place as the majority of the stones will fall beneath the surface and we will be 

limited to the 8 or 10 stones we have on-hand, which will diminish with each placed

stone” (id). Although appellant argues that its mockup establishes that “jagged stones”

are inferior in meeting the Contract requirements, the one “jagged stone” depicted in 

appellant’s mockup photograph appears to cradle down in between the two other 

stones upon which it was placed (id. at TWC004317).
16

33. The “Mockup of Blocky and Angular Stones Example 1,” included a 

photograph depicting placement of one “blocky” stone on top of two “jagged stones,”

as shown below:

(Id. at TWC004323)

Also included were two photographs of the same three stones, purporting to 

depict the alleged surface area contact between the stones (id. at TWC004324-25). 

Regarding Example 1, the mockup presentation included the statement, “[i]t is our 

belief that the wave actions and currents along the jetty will only strengthen and 

reinforce the stones tendency to slip and lock into the structure. The dry stones on land 

limit the stones tendency to slide across one another.” (Id. at TWC004322) However, 

appellant offers no similar statement regarding the “jagged stones” proffered in its 

“Mockup of Jagged Stones Example 1,” or how that might affect the surface contact 

between stones. The document provided also, “[i]f you look closely at the photographs 

you will find that not only do the stones lock well into the structure and fill 

underplaying voids, but the overall surface area contact between the stones is far 

greater than those produced with more jagged stones” (id.). Appellant’s analysis 

ignored completely what can be seen in the photograph (id. at TWC004323), i.e., that 

the “blocky and angular stone” protrudes or extends out, far beyond the two “jagged 

stones.” The “blocky and angular stone” appears also on the right side of the 

photograph that accompanies the “Mockup of Jagged Stones Example 1” (id.

at TWC004317) (see finding 32), again indicating the extent to which the “blocky” 

stone extends out beyond the two base “jagged stones.” Moreover, there appears to be 

an unexplained, large gap between the two “jagged stones” that make up the base upon 

which the “blocky and angular stone” is placed.

34. The “Mockup of Blocky and Angular Stones Example 2,” included a 

photograph depicting placement of one blocky stone on top of two “jagged stones”
17

(Id. at TWC004327)

Also included were five photographs of the same three stones, purporting to 

depict the alleged surface area contact between the stones (id. at TWC004328-32). 

Regarding Example 2, the mockup presentation included the following statement, “[i]t 

is our belief that the wave actions and currents along the jetty will only strengthen and 

reinforce the stones tendency to slip and lock into the structure. The dry stones on land 

limit the stones tendency to slide across one another.” (Id. at TWC004326) Again, 

appellant offered no similar statement regarding the “jagged stones” proffered in its 

“Mockup of Jagged Stones Example 1,” or how that might affect the surface contact 

between stones. The document also provided “[i]f you look closely at the photographs 

you will find that not only do the stones lock well into the structure and fill 

underplaying voids, but the overall surface area contact between the stones is far 

greater than those produced with more jagged stones” (id. at TWC004326). However, 

as with “Blocky and Angular Stone Example 1,” appellant’s analysis ignored what 

clearly is visible in the photograph (id. at TWC004327), i.e., that the “blocky and 

angular stone” extends out beyond the two “jagged stones.” Moreover, there is an 

unexplained large gap evident between the two “jagged stones” that make up the base 

upon which the “blocky and angular stone” is placed (id.). The mockup presentation 

also did not address the effect that “constant tidal actions” would have on the “blocky 

and angular stone” that protrude out and over the stone base upon which it sits.

35. Appellant provided the following summary for its mockup presentation:

It is our recommendation based on these findings that the 

blocky and angular stones be the preferred stone for use 

along the repair sections. The blocky and angular stones 

produce greater surface to surface contact and easily wedge 

themselves naturally into the existing stone structure’s 

composition and voids. These findings prove that this stone 
18 

will provide the structure with the best possible results for 

interlocking, strength and resistance to the tidal forces that 

they will be exposed to. 

(Id. at TWC004333) 

Continued Discussions Between Parties Regarding Stones from Salisbury Quarry 

 

 36. On March 3, 2016, Dr. Williams composed a memorandum for CESAWECP-C [Chief of Construction, USACE Wilmington District] (Mr. Lynch) and 

CESAW-PM [Project Manager, USACE Wilmington District] (Mr. Keistler) (R4, 

tab 84 at 4), addressing appellant’s February 29, 2016, Serial Letter TWC-0001, and 

finding that stones from Salisbury Quarry failed to meet four specification criteria: 

A. Section 2.1.2 Armor Stone states that "Flat Stones, 

tabular stones, slabs, boulders and parts of boulders will be 

rejected." I consider that the contractor's proposed 

dimensional, rectangular stones are flat in that they have six 

flat sides, some of which are saw-cut. Therefore, it is my 

opinion that they fail to meet specification and should be 

rejected for use on this project. 

B. Section 3.2.4 Armor Stone Placement states "The armor 

stones of various sizes and shapes shall be distributed such 

that they form a compact mass and interlock with each other 

and the existing stones." The contractor's proposed stones 

are rectangular in shape which prevents them from being 

placed so that they can interlock with each other and with the 

existing stone within the structure. These non-interlocked 

stones if placed on the existing structure would act as 

individual structures and not as a system of stones to resist 

wave and current forces that occur in the ocean environment 

as the design intended. Personal communication with 

Jeffrey Melby, Chief of the Coastal Structures Group within 

the Engineer Research and Development Center and USACE 

expert on armor stones confirmed that square and rectangular 

stones will not interlock with the existing structure and 

should be rejected.

C. Section 2.1.4 Stone Sources states "The source(s) from 

which the Contractor proposes to obtain stone materials as 

required for these specifications shall be selected and 

identified to the Contracting Officer or his/her designated 
19

representative within 15 days of receipt of Notice to 

Proceed." The contractor in this case failed to submit this 

quarry to the contracting officer in a timely manner and as a 

result the stone from the quarry was not approved. Had we 

inspected these stones in the quarry prior to his transporting 

them to Wilmington, we would have rejected them at the 

quarry. To my knowledge, this quarry still has not yet been 

submitted for approval.

D. Section 2.1.4 Stone Sources additionally states "The 

stone source(s) shall provide test results of ASTM

D5312/D5312M and ASTM D5313/D5313M and records 

of successful use on similar projects." A similar project 

would include projects on the east coast in an open ocean 

environment where dimensional stone of similar shape as 

that proposed by the contractor has been used to repair a 

jetty structure consisting of variable shaped interlocking 

blasted stone such as that found on the subject project. The 

contractor has failed to submit records of successful use of 

stone from this quarry on similar projects and as a result the 

stone from the quarry should be rejected for use on this 

project.

(R4, tab 58 at 1-2) (bold typeface in original)

37. By email dated March 6, 2016, Mr. Leavitt requested a telephone 

conference with the contracting officer “to discuss the Salisbury rock before any 

official response is made” (R4, tab 59 at 1). Mr. Leavitt stated several reasons why he 

believed the government should accept stone from Salisbury Quarry, including 

(1) “[t]he USACE has completed various studies using dimensional cut stone and found 

it to be desirable for breakwater use including single layer breakwater repairs,” 

(2) “[t]he way that the Salisbury rock is quarried makes it superior to most other 

quarried rock,” and “more durable to the effects of weathering,” (3) “Trade West needs 

between 720 and 750 large armor stone to complete the Masonboro project,” and 

Salisbury Quarry “has an estimated 4,000 large armor stone available,” and 

(4) transportation of stones from Salisbury Quarry is “safer and easier” (R4, tab 59 

at TWC004238-39). Regarding the mockup presentation, Mr. Leavitt stated, “Trade 

West found that the Salisbury rock made double the amount of surface contact with the 

existing breakwater mock up as compared to the Fountain quarry rock. This test 

concludes that the Salisbury rock is superior to the Fountain rock with respect to 

interlocking with existing breakwater rock.” (R4, tab 59 at TWC004238)
20

38. By Serial Letter C-0001 dated March 7, 2016, the contracting officer 

responded to appellant’s pervious letter, rejecting the stones from Salisbury Quarry that 

appellant delivered to the site as not meeting specification requirements and being 

unacceptable for placement (R4, tab 5.3; JSSF 22). The contracting officer stated that 

“[t]he specifications and contract documents presented in their entirety clearly indicate 

the intent of the Corps to have random, irregularly shaped stone that will provide the 

maximum potential for interlocking of various shaped stones” (R4, tab 5.3 at 493; 

JSSF 22). The government made an “[e]ngineering determination that rectangular 

stones will not sufficiently interlock with the existing stones, as mandated by the 

specifications, and therefore will not provide the requisite stability over the functional 

life of this structure” (R4, tab 5.3 at 492; JSSF 22). The contracting officer stated also 

that the “non-interlocking stones if placed on the existing structure would act as 

individual structures and not as a system of stones to resist wave and current forces that 

occur in the ocean environment as the design intended” (id.). The contracting officer 

relied upon paragraph 3.2.4 of the Contract, which requires “‘[t]he armor stones of 

various sizes and shapes . . . be distributed such that they form a compact mass and 

interlock with each other and the existing stones,” stating “[b]ecause the existing stones 

in the jetty are of varying sizes and shapes, it is unlikely that a significant number of 

rectangular stones can be placed in a manner to be satisfactorily interlocked with the 

existing stones” (id.).

39. As to the issue of “blocky stone” referenced in appellant’s letter, the 

contracting officer stated that “the surface area contact of rectangular stones with 

relatively flat sides does not equate to the specifications’ intent of interlocking, and 

does not provide sufficient stability during settling of the structure” (R4, tab 5.3 at 493; 

JSSF 22). The contracting officer stated also:

In your correspondence, you focus your justification on two 

words in the specification – “blocky” and “angular”. 

However, that sentence must be read in the context of the 

surrounding sentences and the specification as a whole. Per 

specification section 32 05 00.38, paragraph 2.1.2, “. . . 

stone shall be furnished in blocky and angular shapes. Flat 

stones, tabular stones, slabs, boulders and parts of boulders 

will be rejected.” The samples presented in your 

documentation are rectangular, and are considered to be 

unacceptable, as they share the seminal characteristic of 

several of the specified types of stones that will be rejected 

– flat surfaces. Stones that are flat, tabular and slabs, with 

their flat sides, are not able to satisfy the interlocking 

requirement.

(Id.)
21 

 40. By Serial Letter TWC-0002, dated March 8, 2016, Mr. Potter responded to 

the contracting officer’s letter, acknowledging the government’s position that it “does 

not like the shape of the stone” and informing the government that it had ceased 

hauling materials from the Salisbury Quarry (R4, tab 5.4; JSSF 23). Appellant 

requested a meeting “to inspect materials available at the quarry that are of more 

various shapes and not so rectangular” and stated it had “discovered on [the] ground at 

the quarry there are multiple various stone shapes we would like, as a team effort, to get 

approved” (id.). 

 

 41. By email dated March 10, 2016, to Ms. Figgins, Mr. Leavitt requested that 

Ms. Figgins attend an upcoming visit to Salisbury Quarry, stating, in part, “I believe 

that as a team we can solve this issue and can move forward, but as always on projects 

of this nature time is of the essence. I know that between the two of us that we have the 

authority to make a decision tomorrow and set ourselves on a clear path, with a clear 

direction.” (R4, tab 61) 

 

 42. Ms. Figgins responded to Mr. Leavitt’s request by email also dated 

March 10, 2016, stating that although she is unable to attend the quarry visit, she has 

“full confidence in my technical team's ability to give me full and accurate details on 

the site visit. Shannon [Geoly, Resident Engineer, USACE SAW] will provide me with 

all of the details of the meeting, at that time I will sit down with the team and they will 

lay everything out for me so that we can make a decision moving forward.” (R4, 

tab 61, tab 84 at 3) 

 

Salisbury Quarry Site Visit

 

 43. The parties visited Salisbury Quarry on March 11, 2016 (R4, tab 62). The 

record includes handwritten notes of that visit which appear from the context of the 

document to have been written by a government employee (id.). Notes from that visit 

state, in part: (1) “[w]ants to shape the rock and leave one “flat” side for safety in 

shipping & handling,” (2) “[b]rought us up here b/c thought the problem was color not 

the shape of the rock and knew he had not properly “shaped” the rock, (3) “[a]lways 

knew this was in his back pocket because felt it met the spec but more expensive,” 

(4) “this is exactly what’s going to happen, ‘[y]ou have to accept it,’” that “if I go and 

find another rock you will pay for my expense to find the other source if you are right 

then I will be responsible for the costs,” and “[w]e need to see the final proposed 

‘shaped’ rock to make a decision” (id.). 

 

 44. In a March 16, 2016, government “Memorandum For: Contracting,” 

Ms. Geoly documented the March 11, 2016, visit to Salisbury Quarry, stating, in part: 
22

4. Mr. Leavitt proposed cutting the stone to shape it to 

meet the satisfaction of the Government. It was determined 

the sample available was not a final product. When 

questioned why the product was not finalized for review, he 

indicated he requested we visit the quarry to show us the 

color of the stone once it had weathered. It was noted the 

color of the stone was not an issue and that none of the 

documentation thus far had referenced the color of the stone 

but the shape of the stone.

5. Mr. Leavitt continued discussions regarding cutting the 

stone to alter the shape and stated multiple times that he, 

“was bending over backwards,” offering this course of 

action because the Government had no choice but to 

approve this stone. I responded that was the opinion of 

Trade West Construction and not the Government.

6. Mr. Leavitt stated he wanted to know what the 

Government wanted. I responded that we already indicated 

our desired stone based upon the original stone that was 

submitted for acceptance and that had already been 

delivered to the storage area from Fountain Quarry . . . . 

 . . . .

7. During discussions, Mr. Leavitt repeatedly voiced his 

opinion the stone he was offering to use from Salisbury 

Quarry was a superior stone to that offered from Fountain 

Quarry. He maintained the stone was of better quality and 

would better interlock with the existing stone and with each 

other. He indicated that purchasing the stone from 

Salisbury Quarry would be 30-35% more expensive than 

purchasing from Fountain Quarry but that he could 

transport it to the storage yard much faster and mitigated 

concerns regarding obtaining stones of the proper tonnage.

 . . . .

9. Mr. Leavitt spoke adamantly that he felt the Government 

had no choice but to accept the rectangular stone from the 

Salisbury Quarry because it fully met the project 

specifications. However, he offered to shape the 

rectangular stones to keep things moving forward. He 
23

stated that he would shape one of the already delivered 

stones and request the Government inspect the shaped stone 

upon completion at the Wilmington area storage yard. The 

Government agreed to inspect the proposed shaped stone 

upon completion but cautioned him that agreeing to inspect 

the stone did not guarantee approval of the process or the 

resultant shaped stone.

(R4, tab 64; JSSF 24)

45. On March 11, 2016, following the site visit at the Salisbury Quarry, 

Mr. Leavitt emailed the contracting officer a copy of a letter authored by appellant’s 

counsel, Karl Dix, Jr., stating his opinion that stone from Salisbury Quarry met the 

specification requirements (R4, tab 63; JSSF 25).

46. The record includes a document entitled “QUARRY MATERIALS 

INSPECTION REPORT <DRAFT>,” prepared by Kelley Kaltenbach, Engineering 

Geologist, USACE SAW (R4, tab 84 at 3), summarizing “the pertinent facts regarding 

the quarry inspection that took place on Friday, March 11, 2016, at the Rock of Ages, 

Salisbury Quarry” (R4, tab 69 at 1; JSSF 26). The report stated, in part:

 The quarry produces high grade granite dimension stone 

and cut block for high-end countertops. The stone proposed 

to supply the project is dimension stone that was rejected 

for high end commercial use. While the stone appears to be 

of high strength and quality, the smooth, saw cut faces are 

considered by USACE to be a cause for concern due to the 

possibility of stone slippage and movement within high 

energy coastal environment. The smooth-cut dimension 

stone was inspected at the quarry and found to be [sic] not 

to be acceptable for use on [the] project, primarily due to 

the presence of the smooth cut face surfaces. The 

Contractor proffered to roughen the faces by use of a hoe 

ram in order to utilize the stone at the quarry, primarily due 

to the quantities available to him. USACE agreed to the 

demonstration, which was scheduled for the week of 14 

MAR16.

 . . . . 

The only detractor of this stone to use in the project is the 

presence of flat, smooth, saw cut faces that could prove to 

become unstable in a coastal environment, bordered by 
24 

rocks having more irregular shapes. In addition, the 

presence of flat smooth faces may allow significant sliding 

to occur, which could result in undesirable movement and 

losses over time. If the Contractor were to utilize a hoe-ram 

to break the stone down into more randomized shapes, it 

may be deemed acceptable by USACE from a coastal 

engineering perspective for use as jetty stone. 

(R4, tab 69 at 1, 5) 

 

Trade West’s Decision to Shape Stone from Salisbury Quarry 

 

 47. The parties met for a site visit at the project staging area on March 18, 2016 

(R4, tab 5.6 at 515, tab 67 at 1-2). By email dated March 21, 2016, Mr. Leavitt 

provided the contracting officer with a copy of a March 20, 2016, Serial Letter 

TWC-0003, from Mr. Potter, addressed to the USACE Wilmington District, regarding 

the March 18, 2016, site visit (R4, tab 67; JSSF 28). Mr. Leavitt’s email to the 

contracting officer stated, in part: 

The reason that I am shaping the rock coming from 

Salisbury to meet the direction of the USACE is that the 

current stockpile of rock meeting the COE requirements is 

over 4,000 stones. I need approximately 350 to finish this 

project. It is my intention to produce a rock shape that the 

COE will approve and then shape each rock that will be 

hauled from Salisbury and use the Salisbury quarry for the 

balance of the needed rock to complete the Masonboro 

project. 

(R4, tab 67 at 1; JSSF 28)

 48. Mr. Potter’s Serial Letter TWC-0003 stated that Fountain Quarry was 

depleted, and the rate of production could not provide the needed quantity of stones to 

successfully complete the Contract (R4, tab 5.6 at 515-17). Mr. Potter included with 

his letter attachments of several photographs representing the “shaped stone that was 

produced and shipped from the Rock of Ages, Salisbury Quarry” (R4, tab 5.6 

at 526-27), and shaped stones “that the COE still feels will not properly interlock when 

placed along the jetty” (R4, tab 5.6 at 528-34). 

 

 49. Regarding the shaping of stone from Salisbury Quarry, Mr. Potter’s letter 

stated: 
25

At this time we understand that the stone and source are still 

under review by the government and that the government 

would like the following concerns to be addressed. Of the 

samples that were provided on the morning of March 17, 

2016 COE saw 3 that were close to the desired shapes. The 

main concerns with the best stones were related to the 

amount of smooth surfaces still present along the saw cut of 

each stone. The remaining unsatisfactory shaped stone 

samples had both excessive smooth surfaces and were still 

too blocky in form. Just over 1 hour after the conclusion of 

the onsite meeting four more pictures were provided of 

stone via email that are still on ground at the Salisbury 

Quarry. These were provided for COE comments and 

further analysis to ensure the next set of samples meet all 

the physical properties desired. These stones, while closer 

to the desired shape, still had qualities that were found to be 

blocky in form. One stone had two sides opposite one 

another that appeared mostly flat with one of the sides being 

of a smooth surface. We have taken all of these concerns 

into consideration and are working to develop an adequate 

sample to satisfy the governments [sic] directed 

requirements. Once we have developed a satisfactory shape 

we will keep the initially accepted samples on-site to be 

used as reference guides when inspecting new shaped 

stones that are delivered to the staging area. These 

reference stones will be left on ground until the end of the 

job and will be the last to be placed on the jetty structure.

 . . . .

The benefit of the Salisbury Quarry is the [sic] that the 

quantity already exists. We need only retrieve it from the 

near limitless stockpiles. Using the Salisbury stone 

provides a guarantee that the required amount can be 

harvested in time for an on-time completion. Shaping of 

the stone takes approximately 15-20 minutes per stone and 

we are capable of shaping and shipping upwards of 

14 stones per day with a certain level of control to the 

weight of the stones. The quality of the stone is also greatly 

increased as there are little to no concerns with the 

fracturing that can occur during blasting. 

(R4, tab 5.6 at 515-16; JSSF 27) 
26

50. On March 21, 2016, the parties met for a site visit at the Wilmington 

Storage yard to review three additional shaped armor stone samples (R4, tab 70). By 

email dated March 22, 2016, Kevin Conner, P.E., Chief, Water Resources Division, 

USACE SAW (R4, tab 84 at 4), informed Ms. Geoly and other SAW employees, that 

“we are willing to accept the rock from the Salisbury quarry for use on the Masonboro 

Jetty based on the shaped samples provided yesterday (R4, tab 70). Mr. Conner also 

stated that:

The stones were much improved over the original six side 

flat stones. Some recommendations to include in the 

acceptance letter would be 1) Try to start with larger 

dimensional stone so that the contractor can make some 

acute cuts which will provide more variability in the final 

product. The samples provided were improved, but were 

still basically rectangular. 2) We feel it is imperative that 

the Salisbury stone be intermingled with the blasted stone 

from the Benson and Fountain quarries to improve 

interlocking throughout the jetty. 3) I would recommend 

stating in the acceptance letter that his cutting and shaping 

of the rock from the Salisbury quarry is at no additional cost 

to the government. I know he has stated he will do it at his 

cost, but it would be nice to have this in writing.

(Id.)

51. On March 22, 2016, the government issued a Quality Assurance Report 

(QAR) regarding approval of stone from Salisbury Quarry, stating “[a]ll submittals now 

in and approved . . . stone to be shaped will follow 3 examples in the yard . . . ok to 

start work” (R4, tab 78a1 at 25; JSSF 30) (ellipses in original).

52. By email dated March 24, 2016, Mr. Potter contacted Jack Cox, an engineer

and adjunct professor at the University of Wisconsin, concerning the interlock 

capability of stone from Salisbury Quarry. Mr. Potter stated in his email:

 My name is Steven Potter and I am the Quality Control 

Manager for Trade West Construction. I am seeking 

information on the feasibility of stones interlocking along a 

jetty structure that is primarily comprised of jagged angular 

boulders weighing between 14 and 22 tons. The stones we 

are looking to place on top of this structure are of a blocky 

granite also weighing between 14 and 22 tons. The 

question in a nutshell is will blocky stones interlock with 
27

jagged boulders? It is our belief that the blocky stone will 

work, but I'd like to obtain your council [sic] and discuss 

whether or not the stone we want to use will work. You can 

reach me anytime at the number below here [or] at this 

email. I can provide you with pictures and any other 

information you may need. Please let me know if your 

services are available and if this is something you can help 

us with.

(R4, tab 72 at 2-3; JSSF 31)

53. In an email also dated March 24, 2016, Mr. Cox responded:

 I will call you Monday to discuss, but that is a tough 

question. If you are placing the blocks on top of the 

existing armor of the jetty, I would say no, not a good idea. 

There will be a slip plane between them. You did not say 

how thick or how many layers you plan so I’m assuming 

this is placing a repair veneer over the old so likely just one 

layer. Likely you will not get much interlock. Square 

cubes of concrete have been used for armor, but they are 

still placed randomly at least two units thick, and care is 

taken so that they don't just stack on another giving a flat 

surface.

 I only know of one example where Bedford cut stone 

was used to cap some breakwaters. In that case they were 

more square log shaped so that the long axis spanned across 

the crest. It did seem to work but was so ugly that the 

owner ultimately rejected it[.]

 If you can send me a picture showing how blocky these 

are, maybe I can make a better call and get it approved for 

you. In the end, it will be how skilled your crane operator 

is that will matter, and that may require onsite inspection 

and control to assure a satisfactory product.

(R4, tab 72 at 1-2; JSSF 32)
28 

 54. In an email from Mr. Potter to Mr. Leavitt, also dated March 24, 2016, 

Mr. Potter stated:

 Here is a response from one Engineer I reached out to. 

My email was short with little detail trying simply to open a 

dialogue. His response sounds great, but not in our favor. 

I’ll put a packet of all we know together along with some 

photographs and see what he thinks. 

(R4, tab 72 at 1; JSSF 33) Mr. Cox “did not have any other email exchanges with 

Trade West until [he] was contacted by their counsel on July 17, 2019” (R4, tab 87 

(July 31, 2019, aff. of Mr. Cox at 2, ¶ 4); JSSF 34). 

 

 55. The differences between stone quarried by blasting from Fountain Quarry 

and stone quarried by cutting from Salisbury Quarry are evident in the numerous 

photographs of the two types of stone offered by appellant (findings 21-22, 28, 32-34). 

Unshaped, cut stones from Salisbury Quarry were parallelepiped blocks of stone 

(findings 21-23, 28, 33-34). Blasted stone from Fountain Quarry were jagged, with 

multiple faces, and were randomly shaped (findings 28, 32). 

Contract Completion, Claim Submission, and Contracting Officer’s Final Decision 

 

 56. A total of 702 armor stones were placed at the project, 277 from Fountain 

Quarry and 425 from Salisbury Quarry (R4, tab 77 at TWC000514; JSSF 35). Contract 

work was completed on or about April 29, 2016, and Trade West began to demobilize 

from the site on April 30, 2016 (R4, tab 2 at 31, tab 78a2 at 119; JSSF 35). 

 

 57. By letter dated October 21, 2016, appellant submitted a certified claim to the 

contracting officer in the amount of $304,062, and requested a final decision (R4, tab 3; 

JSSF 36).

 

 58. By letter dated January 20, 2017, the contracting officer issued a final 

decision denying appellant’s claim (R4, tab 3; JSSF 37). 

 

 59. Appellant filed a notice of appeal on February 21, 2017. 

 

Declaration of Dr. Gregory Williams 

 

 60. The government proffered the declaration of Dr. Williams, dated 

May 10, 2021, as the government’s “expert report on this issue of whether the Salisbury 

Quarry Stone met the Contract requirements” (gov’t br. at 25 (citing R4, tab 88 (May 10, 
29

2021, decl. of Dr. Williams))).

7

 As Chief of Engineering, USACE SAW, “Dr. Williams 

oversees all engineering and design aspects of the Wilmington District” (R4, tab 88 

at 11). He “has over 30 years of experience working in coastal and civil engineering, as 

a researcher, private consulting practice and with the Corps of Engineers,” holds a 

Professional Engineering license and a BS in Civil Engineering from NC State 

University, an ME in civil/coastal engineering from Old Dominion University and a 

Ph.D. in ocean engineering from Texas A&M (id.).

61. During Contract performance, Dr. Williams authored a technical opinion 

concluding that the stone from Salisbury Quarry did not meet Contract requirements 

(R4, tab 88 (May 10, 2021, decl. of Dr. Williams at 2, ¶ 4); R4, tab 58).

62. Dr. William’s declaration states, in part:

5. ... The requirement for the stone to be furnished in 

“blocky and angular shapes” has specific meaning with 

regard to coastal engineering erosion control structures and 

is commonly understood to mean blasted rock with sharp, 

random, angular shapes.

6. That terminology would not be used to describe 

uniformly shaped cubes or parallelepiped shaped stone like 

that produced by the Salisbury Quarry. USACE Engineer 

Manual EM 1110-2-1100 (“Coastal Engineering Manual” 

or “CEM”) CEM Part IV, Chapter 2 includes the following 

figure describing manufactured concrete armor units 

characterizing parallelepiped blocks and cubes, similar to 

the Salisbury Stone, as “massive” compared to other types 

of armor units (USACE 2002):

7 Board Rule 11 allows for the submission and inclusion of declarations and affidavits 

as part of the Rule 4 file; Raytheon Missile Sys. Co., ASBCA No. 59258, 15-1 

BCA ¶ 36,102 at 176,260 (“By agreeing to a Board Rule 11 submission, each 

party is entitled to submit affidavits/declarations in place of the live testimony 

that would have been available had the parties elected a hearing”).
30

Chapter 2 of this EM goes on to say, “The units can be 

divided into the following categories related to the 

structural strength:

(1) Massive or blocky (e.g., cubes incl. grooved types, 

parallelepiped block)

(2) Bulky (e.g. Accropode, Core Loc, Haro, Seabee)

(3) Slender (e.g., Tetrapod, Dolos)

(4) Multi-hole cubes (e.g., Shed, Cob)

Based on this language, the Salisbury Quarry Stone could 

meet the definition of “blocky”, in isolation, but the EM 

does not specifically address the definition of “angular”, 

either alone or in the combined context of “blocky and 

angular”.

7. ... While the stones provided by Trade West 

Construction originating from the Salisbury Quarry fit the 

definition of “massive/blocky” shown in the above figure 

from CEM, these stones would not be considered “angular” 

because their corners are at or close to 90-degree angles. 

Angular stones have either acute (angles less than 

90-degrees) or obtuse (angles greater than 90-degrees) 

angles, but no flat sides with 90-degree angles. The term 

“angular” is not used to describe cubic or parallelepiped 

shaped stone.
31

8. While the CEM is not instructive on the issue of what is 

considered “angular”, other guidance is instructive. Table 2 

of ASTM D2488-17 ‘Standard Practice for Description and 

Identification of Soils (Visual-Manual Procedures)’ gives 

the criteria for describing angularity of coarse-grained 

particles. Specifically, it describes angular as ‘particles 

have sharp edges and relatively plane sides with unpolished 

surfaces.’ This ASTM also includes the below Figure 3 to 

describe the angularity of bulky grains. Note part 

‘(b) Angular’ which shows examples of particles with sharp 

angles, none of which include cubic- or parallelepipedshaped stones.

9. Cubes and parallelepiped stones like that from the 

Salisbury Quarry do not interlock well with adjacent stones 

that are of different types and shapes. Cubes and 

parallelepiped stones can interlock well with other cubes 

and parallelepiped stones when they can fit into a structure 

like bricks in a building. However, they are not compatible 

for interlocking when placed with a different type of stone 

that already exists, such as the blocky and jagged, angular 

stone found at the Masonboro Inlet South prior to this 

project. The intent of the requirement for stone of” blocky 
32

and angular shapes” was for stone that was similar to the 

existing stone.

 . . . .

11. . . . The last sentence in this section [32 05 00.38, 

Subpart 2.1.4 of the contract] references forming “a 

compact mass and interlock with each other and the existing 

stones” and is directly related to the previously cite 

specification [32 05 00.38, Subpart 2.1.2] regarding blocky 

and angular shaped stone. Various sizes and shapes refers 

to the gradation range of the replacement stone being 

between 14.0 tons to 22.0 tones [sic] with 75% weighing 

more than 18.0 tons as described in Specification 2.1.3. 

The shapes of the stones should be irregular so they can 

interlock with each other and the existing stones. Cubes 

and parallelepiped stones cannot interlock with the existing 

angular stones. Dr. Jeff Melby (USACE expert on armor 

stones and patent holder for the CORE-LOC armor unit) 

said “Cubic stones do not interlock well (Melby 2016).” 

Cubic-shaped/parallelepiped-shaped stones do not have 

enough acute angles to effectively interlock with the 

existing angular stones already on the jetty.

 . . . .

15. . . . Interlocking is not achieved only by mass and 

making a certain number of contacts, but by placement of 

stones where some angles of stone are fit in and around 

other stones so they interlock. Such interlocking cannot be 

achieved when the replacement stone has 90-degree angles 

because those sides and corners would require an exact 

90- degree angle “hole” or “notch” for that portion of the 

stone to fit into. There are seldom if ever exact 90-degree 

angle holes or notches in an existing rubble mound. 

Shaving off of these 90-degree angles through shaping to 

create more acute angles provided more opportunity to find 

slots or notches in the existing structure into which the 

Salisbury Quarry stone can settle.

(R4, tab 88 (May 10, 2021, decl. of Dr. Williams at 2-8))
33 

Affidavit of Mr. Jack Cox 

 

 63. Appellant relies upon an affidavit of Mr. Cox, which appellant originally 

included with its motion for summary judgment (R4, tab 87 (July 31, 2019, aff. of 

Mr. Cox)). Attached to his affidavit are several documents that set forth Mr. Cox’s 

experience and expertise in coastal engineering (R4, tab 87 at 7-46)). “Mr. Cox is a 

Senior Principal and Coastal Engineer for Edgewater Resources, where he directs the 

planning and design of large and complex waterfront and harborworks projects 

worldwide,” with 40 plus years of experience in marine engineering (id. at 7)). He is a 

registered professional engineer, and holds a Bachelor’s and Master’s degree in 

Engineering Science from Purdue University (id.). 

 

 64. Mr. Cox states: 

6. My email did not advise Trade West that the "Salisbury 

Quarry stone would not provide better interlocking 

capability”. What my email did state was that if the stone 

was installed as a veneer over the current stone, that the 

interlocking between the veneer and the current structure 

may not provide for proper interlocking. In my original 

email to Trade West, I was concerned about “slip planes” 

which could occur if two flat sides of a stone came in 

contact and then was infiltrated by liquid to cause the planes 

to slide in opposite directions. Some stone movement is 

acceptable if the slip or slide causes the stone to wedge 

itself into the slope to fill a void. A slip or slide of a stone 

is not favored if it causes the stone, and/or adjacent stones 

to fracture, slump or simply displace from its intended 

location, thus compromising the integrity of the slope. A 

veneer of stone could produce unfavorable sliding between 

the veneer and original structure. 

7. I have since learned that each stone for this Project was 

individually selected and placed into the jetty to fill voids 

then existing in the jetty and to build the jetty to a specified 

elevation. The interlocking is achieved by the skillful 

placement of the stone in the jetty. Maximizing surface 

contact between the stones to nestle the majority of the 

stone weight between the other stones when filling the 

voids and, thereby reducing the size of the voids, would 

provide for better interlocking especially since the stone is 

quite heavy weighing 14 to 22 tons. 
34

8. Interlocking of stone in a jetty and other coastal 

structures does not involve simply filling voids in the armor 

face with appropriately sized rocks. Interlocking is required 

and achieved by the use of heavy stone and placing it to fill 

voids in such a way so as to provide a compact, i.e. tightly

bound and restrained mass or structure. Effective 

interlocking is not a characteristic of purely the stone 

geometry, but rather primarily a result of proper placement 

of angular and blocky stone (not rounded stone) such that 

multiple contacts between adjacent rocks is achieved. That 

is why “interlocking” is required under the specification 

section (3.2.4) entitled “Armor Stone Placement” and not 

the section (2.1.2) generally titled “Armor Stone” which 

provides the characteristics of acceptable stone.

9. Requiring Trade West to hammer and chisel the stone to 

make it less angular and less blocky would not necessarily 

assure interlocking since interlocking is largely determined 

by the then existing state of the jetty as well as the 

placement of the rock into the jetty. Interlocking means 

that once in place, the stones are pinned in place and do not 

move (are locked into one another) once the stones are 

placed against each other.

10. The stone specification for this project, that I have 

reviewed, requires the contractor to place the stone so that it 

interlocks to form a compact mass in the jetty and reduce 

voids. The requirement for each individual stone's 

characteristics does not specify or define "interlocking 

stone", as the interlocking is an aspect of the placement 

technique, not the stone itself. The specification requires 

simply that blocky and angular stones of various shapes and 

sizes be used. . . . Depending on the size and configuration 

of the void and the method of placement, different shaped 

stones would interlock better than other stones.

11. Blocks of stone, such as proposed by Trade West for 

this project could interlock into the structure if the properly 

sized stone for the void was chosen and the stone was 

properly placed to eliminate the void and lock the stone in 

place so it did not rock. Proper placement is accomplished 

by moving adjacent stone (if necessary and which may 

occur by wedging the heavy stone in place) and placing the 
35 

stone in contact with and against the adjacent stones so the 

stone is pinned in place and does not move or rock. 

12. The blocks of stone proposed by Trade West are 

certainly blocky and they are angular. The specifications do 

not state the type of angularity required, but angularity 

should be juxtaposed with roundness — round stones 

generally do not interlock while angular stones can 

interlock when properly placed. The blocks of stone, if 

properly selected and placed, should be able to achieve 

interlock. 

(Id. at 2-4; JSSF 34) 

 

 65. Mr. Cox states that he reviewed appellant’s “presentation of mockup of 

jetty,” but his affidavit contains no other comments about the presentation (R4, tab 87 

at 1). 

 

Report of Dr. Gary Griggs 

 

 66. Appellant submitted an expert report authored by Dr. Gary Griggs, a 

“Consulting Coastal Geologist” (R4, tab 89 (May 24, 2021, report of Dr. Griggs at 8)). 

His report includes a statement of his education and experience in geology, 

oceanography, and engineering, a brief summary of his academic written work, and 

acknowledgment of his coastal consulting practice (id. at 2)). Dr. Griggs is a 

distinguished professor of Earth and Planetary Sciences at the University of California 

Santa Cruz, where he has been on the faculty for 53 years (id.). He is a registered 

geologist and certified engineering geologist, with a degree in Geological Sciences 

from the University of California Santa Barbara, and a Ph.D. degree in Oceanography 

with minors in Civil Engineering and Geology from Oregon State University (1968) 

(id.). 

 67. Dr. Griggs prepared his report at the request of appellant’s counsel, “to 

assess the appropriateness of the stone from the Salisbury Quarry used in the repair of 

the south jetty of the Masonboro Inlet” (id. at 2). According to appellant, Dr. Griggs 

“opinion provides a peer review of Mr. Cox’s opinion,” that he “agrees with the 

analysis and opinions provided by Mr. Cox and disagrees with many of the opinions 

provided by the Corps’ proffered expert, Mr. [sic] Williams” (app. br. at 22-23). 

 

 68. Dr. Griggs states that the Contract’s design plans “form the basis of the 

work to be completed, in contrast to more general or less specific terms like blocky or 

angular” (R4, tab 89 (May 24, 2021, report of Dr. Griggs at 3-4) (emphasis in 

original)). Dr. Griggs’s report quotes note 4 of Contract Drawing CN301, regarding 
36

proper placement of the armor stone, and reproduces a portion of the design plans that 

appear on Contract Drawing CN304 (R4, tab 8 at 8) (see finding 13), which he labels: 

“Figure 1. Cross-sections of the south jetty with proposed stone placement from 

contract documents” (id. at 4). Dr. Griggs then states:

While the stone descriptions state that the rock to be used 

should be angular, the stones depicted on each of the 

68 cross-sections are not angular but more spherical, which

would not be stable on a jetty exposed to high wave energy, 

and in fact, would not be stable on any stone structure. This 

is immediately evident in looking at the cross-sections, yet 

these are the approved engineering plans.

(Id.) (Italic typeface in original) Although Dr. Griggs’s report quotes Note 4 on 

Contract Drawing CN301, Dr. Griggs does not discuss the import of that note, which 

states that “the stones depicted on the typical cross sections, as well as the cross 

sections themselves, are merely general representations, and do not mandate the size of 

the stone to be utilized. They are only intended to be a general example of proper stone 

placement.” (R4, tab 8 at 8) Dr. Griggs does not affirmatively discuss or substantively 

establish how stone from Salisbury Quarry met the requirement that the armor stone be 

of “varying shapes and sizes.”

69. With regard to Dr. William’s statement whether stone from Salisbury 

Quarry was blocky and angular, Dr. Griggs states:

While Mr. [sic] Williams, Chief of the Engineering 

Division Branch of the USACE Wilmington District, states 

in his Declaration (page 2): The requirement for the stone to 

be furnished in “blocky and angular shapes” has specific 

meaning with regard to coastal engineering control 

structures and is commonly understood to mean blasted 

rock with sharp, random, angular shapes.

Mr. [sic] Williams does not cite a document where this 

specific meaning is explained or defined, or by where it is 

“commonly understood to mean blasted rock with sharp, 

random, angular shapes”.

(R4, tab 89 (May 24, 2021, report of Dr. Griggs at 4)) Dr. Griggs criticizes 

Dr. Williams’s statement because he “does not cite a document where this specific 

meaning is explained,” or “where it is ‘commonly understood,’” yet, Dr. Griggs does 

not state any disagreement with the premise of Dr. Williams’s statement (id.).
37

70. Dr. Griggs states also:

On page 3, Mr. [sic] Williams states that the stones from the 

Salisbury Quarry do fit the definition of “massive/blocky”, 

but would not be considered “angular” because their corners 

are at or close to 90-degree angles, and angular stones have

either acute (angles less than 90-degrees) or obtuse (angles 

greater than 90-degrees) angles . . . While he calls the 

corner of the Salisbury stones 90-degree angles, he 

concludes in the same sentence that they are not angular. 

Any angle, whether 5, 60, 90 or 145 degrees is an angle. It 

seems that Mr. [sic] Williams has made up a definition of 

angular stones to have only acute (less than 90-degrees) or 

obtuse (greater than 90-degrees) angles. What about an 

angle or corner at 85 or 95 degrees? Would these stones be 

considered angular? He also states that the CEM is not 

instructive on the issue of what is considered “angular”, but 

then goes on to compare small natural pebbles weighing 

less than an ounce with quarried or blasted stones weighing 

14-22 tons. This is an unsatisfactory and inappropriate 

comparison.

(Id. at 4-5) (emphasis in original)

71. Dr. Griggs quotes, with approval, a portion of Mr. Cox’s affidavit, stating: 

The careful placement of the stones on the jetty in order to 

achieve a compact, tightly bound and restrained mass or 

structure, is one of the most important components of this

repair process. The “interlocking” of the stone is not 

simply a characteristic of [“]the stone geometry, but rather 

primarily a result of the proper placement of angular and 

blocky stone (not rounded stone) such that multiple contacts 

between adjacent rocks is achieved” (Declaration [sic] of 

Jack Cox, page 3).

Jack Cox continues (page 4): “The stone specifications for 

this project that I have reviewed requires the contractor to 

place the stone so that it interlocks to form a compact mass 

inthe jetty and reduce voids. The requirement for each 
38 

individual stone’s characteristics does not specify or define 

‘interlocking stone’, as the interlocking is an aspect of the 

placement technique, not the stone itself...The specification 

requires simply that blocky and angular stones of various 

shapes and sizes be used”. I am in complete agreement 

with these statements. Placement of the stone is of critical 

importance in achieving stability. 

(Id. at 5) 

 

 72. Dr. Griggs references in his report appellant’s “mockup of the Salisbury 

Quarry stones in order to show the degree of interlocking (TWC Mockup of Jetty 

Construction, 1 March 2016) of the jagged blasted stone compared to the blocky 

angular stone from the Salisbury Quarry (Figures 2 and 3).” Regarding that mockup, 

Dr. Griggs concludes, “[w]hile it is difficult with just two photographs to compare the 

fit or embedment of the two different stone types, it appears that the cut stone from 

Salisbury Quarry, if well positioned, can achieve the compact and ‘interlocking’ 

requirement.” (Id. at 5)

 

 73. Dr. Griggs notes also that “there is also a very short 46-second video of the 

crane placing two blocks of Salisbury stone that had been hammered and chiseled to 

make it less angular and less blocky (Figures 4 and 5). Watching this video makes it 

clear how important the skill of crane operator in placing the stones is in achieving the 

goals of creating a compact mass and interlocking.” (Id.) Dr. Griggs’s reliance upon 

this video is misplaced as it does not demonstrate the interlocking capability of 

unshaped stone. As noted by Dr. Griggs, this video demonstrates the placement of 

shaped stone from Salisbury Quarry (R4, tab 80). 

 

 74. Dr. Griggs states: “[t]o be clear, even with randomly shaped and angular 

blasted zone [sic] as was used in the original construction of the jetty, the term 

“interlocking” is somewhat misleading as a criterion for stone placement. The use of 

manufactured concrete armor units such as tetrapods, were developed specifically to 

provide true interlocking for stability in very high wave energy environments.” (R4, 

tab 89 (May 24, 2021, report of Dr. Griggs at 8)) Dr. Griggs observation does not 

establish that unshaped stone from Salisbury Quarry would “provide true interlocking.” 

 

First Affidavit of Mr. Andy Leavitt 

 

 75. Appellant submitted two affidavits of Mr. Leavitt, whom appellant “offered 

as an expert in the field of Construction Engineering and performance of construction 

building maritime erosion control structures” (app. br. at 25). Mr. Leavitt was project 

superintendent at Trade West, where he was responsible for “preparation and 

negotiation of bids and proposals, review of contract specifications and drawings, 
39

performance of the work and administration of the contracts” (R4, tab 85 (June 7, 2019,

aff. of Mr. Leavitt at 1)). Mr. Leavitt has “over 30-years’ experience in the 

performance of heavy civil construction and earthmoving projects,” and was “solely 

responsible for the operation of the construction activities of Trade West . . .” (id.).

76. Mr. Leavitt’s first affidavit, dated June 7, 2019, was submitted with 

appellant’s motion for summary judgment and states, in part:

7. The contract in this Appeal required the Contractor to 

provide and place one layer of Armor Stone on the 

Masonboro Inlet Jetty . . . .

8. When initially performing this contract, I planned to use 

large stones produced as a byproduct from blasting 

operations to produce aggregate. Blocks of stone produced 

sawing the stones form [sic] the quarry are preferable 

because blasting may weaken the structural integrity of the 

stone (micro fractures) and the stone blocks fit together 

more tightly to eliminate voids between the stone and 

increase the contact surface area between stone is the 

stones. Typically, block stone is more expensive.

9. Blasted rock is often used for those projects because it is 

cheaper to produce. In placing the large stones, it is my 

experience that better "interlocking" is achieved by using 

the blocks of stone rather than the jagged blasted stone. 

Interlocking is better because the large stone blocks reduce 

voids between the stones and increase the surface contact 

between stones, thereby consolidating and compacting the 

mass of stone in the Armor layer.

10. The drawings for this contract showed stone which 

were blocks and "blocky'' and ''angular" and not the jagged 

stones produced by blasting (though the blasted stone meets 

the contract requirements). See Tab No. 2 for Drawing 

No. CN301 which is representative of the placement 

requirements depicted by the other drawings. Note 4 on the 

Drawing requires the blocks of Armor Stone to be placed in 

a single layer not to exceed two feet above Elevation 1.0' 

NA VD 88. Using blocky, angular blocks of stone 

minimizes the voids between the stones as the maximum 

surface area of the blocks rest against each other to 

"interlock". Using jagged stones produced by blasting 
40

approximates the stone blocks when "angular'' and "blocky'' 

stones are used. However, blasted jagged stone will create 

more voids when placed, be less compact as a mass and 

interlock to a lesser degree.

11. We did not initially use stone from the Salisbury 

Quarry when starting performance of the work since the 

blasted stone from the Fountain Quarry was much closer to 

the project site thereby greatly minimizing the

transportation costs. The Fountain Quarry was not able to 

produce enough rock within the timeframe of the contract to 

permit our timely placing of the quarry stone. . . . 

 . . . .

15. Trade West Construction located an alternative quarry 

named the Salisbury Quarry. Though located further away, 

that quarry produced stone which was more blocky and 

more angular that the stone produce by the Fountain Quarry 

since this stone was sawn rather than blasted from the 

quarry. The blocks of stone were more “blocky” and 

“angular” than the Fountain Quarry blasted stone. As the 

stone was to be laid in a single layer on top of the current 

jetty, the blocks would better interlock. 

16. Interlocking is a mechanical concept whereby placing 

stone in contact with each other will form a better and more 

compact mass when voids are eliminated and the contact 

between the stone is maximized. Stone interlocking is best 

exemplified in history by the pyramids and castles whereby 

stone blocks are laid together in full contact with virtually 

no voids. The blocks are not jagged, and the interlocking 

occurs from the contact of the flat surfaces such that 

movement of a stone would disturb the other stones.

17. To demonstrate these concepts, Trade West 

Construction provided a ''mock-up of jetty conditions" 

whereby we demonstrated these concepts to the Corps by 

comparing the stacked, blasted jagged stones form [sic] the 

Fountain Quarry to the angular and blocky stone from the 

Salisbury Quarry. The blocky and angular quarry's stone 

better interlocked than the blasted, jagged stone from the 

quarry.
41 

 . . . . 

28. After the Masonboro project, we performed another 

Armor Stone project for the Corps of Engineers in the State 

of Washington near Rialto Beach. We showed them the 

Salisbury stone blocks (before shaping) that we had 

proposed for the contract at issue in this appeal and the 

Corps confirmed that this was the preferred stone and 

superior to the cheaper jagged stone produced by blasting. 

See Tab No. 9 (note that the Salisbury stone (before any 

shaping) was proposed). The Corps' Seattle District 

accepted this proposal and preferred stone blocks to the 

blasted rock since the stone block interlocks better. 

(R4, tab 85 (June 7, 2019, aff. of Mr. Leavitt at 1-8)) Mr. Leavitt’s affidavit does not 

discuss the Contract’s requirement that stone be of varying sizes and shapes (id.). 

 77. Attached to Mr. Leavitt’s affidavit (tab No. 9) is a memorandum dated 

October 24, 2018, from Mr. Leavitt to the Seattle District “Design Team for Quillayute 

Revetment Repair” (id. at 94). In that document, Mr. Leavitt suggests the use of 

“rectangular shaped stones that can interlock and have extremely large surface contact 

area with surrounding stones when compared to irregular shaped stones which are 

produced by blasting” (id.) (underlining in original). Mr. Leavitt included pictures of 

Salisbury Stone, “provided solely for the purpose of seeing approximate shapes and 

dimension ratios of stones that can be produced,” and that “[t]he size of stones listed in 

the pictures do not reflect the actual size of the stones that would be produced for this 

project” (id.) (underlining in original). Mr. Leavitt concluded, “[p]lease let us know if 

there would be a problem using stones in this likeness described above and pictured 

below” (id.). The copy of Specification 3.3, Stone Placement, provided by Mr. Leavitt, 

allowed for use of slab-like stone, stating that “[n]o slab-like stone shall be placed with 

its broadest dimension facing upward, parallel to the finish grade line” (id. at 95-96). 

Tab No. 9 contains no explicit statement by the government to the effect that “the 

Corps confirmed that this was the preferred stone and superior to the cheaper jagged 

stone produced by blasting” (id. at 94) (see finding 76, ¶ 28). 

Second Affidavit of Mr. Leavitt 

 78. Mr. Leavitt’s second affidavit, dated June 8, 2021, provides, in part: 

5.a. Our firm performed the Rialto Beach Revetment 

Repair at LaPush for the Corps of Engineers in 2019. That 

contract required us to provide large 14-24 ton armor stone 
42

for the project. Originally sawn quarry blocks were 

approved by the Corps for the project but we switched to 

blasted stone since the blasted stone was less expensive. 

Our firm quarried the stone and produced and placed Armor 

Stones approximating the quantities of armor the [sic] stone 

used for the Masonboro Project.

 . . . .

11. Mr. [sic] Williams' Declaration also equivocates 

"cubes" with parallelepiped shaped stones. No stone 

produced from the Salisbury Quarry was in the shape of a 

cube. A cube is a solid object bounded by 6 square faces. I 

personally viewed all the stones provided by the Salisbury 

Quarry and none were cubes. Each were of different sizes 

and shapes with differing angles and weights.

12. Mr. [sic] Williams also states that the specification 

prohibits stones which have flat surface when, in actuality, 

the specification prohibits "flat stones" and has a specific 

requirement that the "longest dimension" cannot exceed 

three times greater than the least dimensions. This 

requirement is common in coastal protection contracts (and 

Corps projects) since such flat stones are more susceptible 

to fracture and could bridge large voids. The blocky and 

angular Salisbury Quarry stones were not flat stones and do 

not fracture like flat stones or bridge voids. Additionally, 

since blasted stone, such as the stone from the Fountain 

Quarry stone, have multiple faces, many of them would 

have had a least dimension which was less than one-third 

the longest dimension on the stone. The intent of the 

specification was to prohibit "flat stones". Corps guidance 

regarding coastal structures cautions against the use of flat 

stones. See Attachment No.2, excerpt pf EM 1110-2-1100 

(Part VI) at VI-4-19b(3)(a) ("The largest stone dimension 

on an individual stone should be no more than three times 

the shortest dimension.") and VI-4-3a (28 Sep 2011) 

("Quarrystones are larger rock pieces that are 'blocky" in 

shape rather than elongated or 'slabby'").

13. Mr. [sic] Williams also implies that the stone supplied 

from the Salisbury Quarry were "uniformly shaped'', which 

in fact, is not true since all the stones greatly varied in shape 
43

and size and no two stones were identical. In my 

experience, the purpose of this requirement is to provide a 

varied stock of stone of various shapes and sizes to allow 

the operator placing the stone the choice of stone to fill a 

void or to build out the slope to the design elevation. 

Mr. [sic] Williams was careful and accurate not to describe 

the stone as rectangular, but rather as "parallelepipeds'' 

which are defined as blocks with six parallelogram faces. 

These stones vary in size and shape to provide a sufficient 

stockpile, in my experience, for the operator to place in the

jetty structure to interlock the stone and form a compact 

mass.

14. Mr. [sic] Williams cites CEM Part VI, Chapter 4 which 

states that angular and blocky stones are preferred to wedge 

and interlock with adjacent stones "when placed randomly". 

That differs greatly from this project since each stone was 

not placed randomly, but was carefully selected by Trade 

West and placed in the jetty to fill a void or build the layer 

to the design elevations to minimize any gaps between 

stones and pin them against adjoining stones thereby 

promoting its interlock. Interlocking is a function of 

placement for blocky and angular stone and not an inherent 

characteristic - any stone can be placed and not interlock 

due to improper placement. The distinction drawn by the 

specifications was to prevent the use of rounded boulders 

(not blocky and angular) which would not interlock despite 

careful placement. Drawing CN301, note 4 cautioned that 

the depicted rounded stones were provided for guiding 

placement and not specify inherent characteristics of the 

stone.

 . . . .

18. Paragraph 9 of Mr. Williams' Declaration is conclusory 

and mistaken since none of the Salisbury Quarry stones 

were cubes. Mr. [sic] Williams' "bricks in a building" 

analogy is not applicable since the shapes and sizes of the 

Salisbury stone varied greatly. However, they do share a 

similarity in that the Salisbury blocks could be placed with 

far less void space than a jagged stone produced by 

blasting. I was at the Masonboro Inlet South Jetty and 

observed the onsite conditions and I know that, through 
44

careful placement, Trade West would have been able to 

wedge in the blocks with far less void space than the jagged 

stones produced by blasting or chipping of the sawn stone. 

In fact, we showed that precise fact in our mockup 

demonstration. Reducing void space produces a "compact 

mass". Wedging stones into an existing structure and 

pinning them against each other to lock them into place is a 

form of interlocking.

19. Mr. [sic] Williams' statement that the intent of the 

requirement for stone of 'blocky and angular shapes' was for 

stone that was similar to the existing stone" has no support 

in the specifications and cannot be fairly read from those 

specifications. Any such "intent" was not mutual and was 

not directly or indirectly expressed in the specifications or 

drawings. Besides, the blocky and angular Salisbury quarry 

unshaped stone is similar to the existing jagged blasted 

stone when juxtaposed against rounded boulders and 

rounded field stone. "Quarry-produced stones are typically 

angular, whereas stones from glacial deposits and alluvial 

sources are usually rounded." EM 1110-2-1100 (Part VI) 

VI-4-20 at (4). The Salisbury stone is more durable than 

the existing stone in the jetty since its structure has not been 

weakened by blasting. See, for example, ERDC/CHL TR05-1, Monitoring Stone Degradation on Coastal Structures 

in the Great Lakes [n.2], Table 8, p.210 (June 2005) 

(attached is an excerpt of the Corps of Engineers Report at 

Attachment No. 3 which contains pp. 207-219 regarding 

methods of Armor Stone extraction) . . . .

[n.2] While the Great Lakes are not the same as ocean 

conditions (which vary widely between locations), 

conditions in the Great Lakes affecting the durability of the 

stone are more severe than the Masonboro Inlet due to the 

extreme temperatures (Freeze thaw) as well as large waves 

that may exceed 20 feet in height.

 . . . . 

24. The email from Jeffrey Melby quoted in Paragraph 11 

is unremarkable. Attached at Exhibit No.4 is a copy of that 

email in which he states that "Cubic stones do not interlock 

well. Out of Spec." Again, these were not cubes, but were 
45 

blocky and angular stones of varying sizes and shapes 

which were clearly complied with the specification armor 

stone requirements. Interlocking is largely a function of 

placement as provided in the specifications which included 

the interlock requirement in the Placement section of the 

specification and not the section relating to the requirements 

for the stone itself. Furthermore, Mr. [sic] Melby's 

knowledge of the project was limited by the coaching 

provided by Mr. [sic] Williams in his email thread as 

Mr. [sic] Melby apparently did not look at any of the 

materials supplied by Trade West, consider the 

specifications as a whole, or visit the site. 

(R4, tab 90 (June 8, 2021, aff. of Mr. Leavitt at 2-10)) 

DECISION 

I. Contentions of the Parties 

The parties agree that the issues to be decided in this Rule 11 proceeding are 

whether stone from Salisbury Quarry, without shaping, met the Contract specifications 

requiring that the armor stone be (1) blocky and angular in shape, (2) of various sizes 

and shapes, and (3) capable of forming a compact mass and interlocking with each 

other and the existing jetty stone (app. br. at 2; gov’t br. at 33). Appellant argues that 

the unshaped stone from Salisbury Quarry satisfied the Contract “requirements and the 

direction to shape the existing stone by the Corps was a change to the contract . . .” 

(app. br. at 1-2). The government argues that unshaped stone from Salisbury Quarry 

“was uniformly shaped as parallelepiped with relatively minor differences in size,” 

which “would not adequately interlock with the existing jetty stone to which it was 

being placed” (gov’t br. at 4). The government also argues that “[a] reasonable 

contractor familiar with the terms of the solicitation and the existing site conditions 

would have understood that the intent of the contract was to repair the [jetty] with stone 

similar to what was currently in place,” noting that “[t]he initial armor stone selected, 

ordered, delivered, and placed by Appellant closely matched the existing jetty stone 

because it was randomly shaped with rough, uneven sides and sharp edges” (id.). 

II. Burden of Proof

“Unlike a motion for summary judgment, which must be adjudicated on the 

basis of a set of undisputed facts, pursuant to Board Rule 11, the Board ‘may make 

findings of fact on disputed facts.’” U.S. Coating Specialties & Supplies, LLC, ASBCA 

No. 58245, 20-1 BCA ¶ 37,702 at 183,031 (quoting Grumman Aerospace Corp., 

ASBCA No. 35185, 92-3 BCA ¶ 25,059 at 124,886 n.13). Although our decision on 
46

the parties’ cross-motions for summary judgment narrowed the issues in this appeal, we 

now are called upon to resolve disputed facts which bear upon whether armor stone 

offered by Trade West met the Contract’s requirement that the stones be blocky and 

angular in shape, of various sizes and shapes, and able to interlock and form a compact 

mass with each other and the existing stone with each other and the existing stone. 

Trade West I at 183,076.

Trade West has the burden of establishing by a preponderance of the evidence 

that the government’s alleged direction to shape the stone was a constructive change to 

the contract.8

 CDM Constructors, Inc., ASBCA No. 60454 et al., 18-1 BCA ¶ 37,190 

at 181,011 (citing Amos & Andrews Plumbing, Inc., ASBCA No. 29142, 86-2 BCA 

¶ 18,960 at 95,738 (citing Teledyne McCormick-Selph v. United States, 218 Ct. Cl. 

513, 517, 588 F.2d 808, 810 (1978)). To meet that burden, appellant must establish by 

preponderant evidence that stones from Salisbury Quarry, without shaping, met the 

specifications.

Appellant properly recognizes the burden it must meet. Quoting our decision in 

Jack Heller, Inc., ASBCA Nos. 14300, 14376, 72-2 BCA ⁋ 9,477 at 44,147, appellant 

notes that a preponderance of the evidence “rests with that evidence which, when fairly 

considered, produces the stronger impressions, and has the greater weight, and, even 

though not free of doubt, is more persuasive as to its truth when weighed against 

evidence in opposition thereto” (app. br. at 31). Accordingly, “a balancing, or 

weighing, of the conflicting evidence must be performed by any fact finding tribunal 

before it can properly arrive at what constitutes the ‘preponderance of the evidence’”

(id.). As we discuss below, after balancing and weighing the totality of the evidence 

presented by both parties, we find that appellant has failed to establish by a 

8 Our previous decision held that “[a]lthough the record suggests that the contractor 

volunteered to shape the stone in the first instance [,] . . . to resolve the issue 

ultimately we must determine whether the government's refusal to accept 

Salisbury Quarry stone without shaping amounted to an informal order to shape 

the stone,” an issue we could not decide on motions for summary judgment. 

Trade West I at 183,078. In its Rule 11 briefing, the government does not

present legal argument challenging this aspect of appellant’s constructive change 

claim. Appellant’s proposed finding of fact no. 5 alleges that “[t]he Corps 

directed Trade West” (app. br. at 19), which the government simply denies, 

stating, “[a]ppellant offered to mechanically shape the stone, and USACE agreed 

to consider whether the shaped stone was acceptable” (gov’t reply br. at 6). The 

government also “admits that it would not accept the Salisbury Quarry stone 

without further shaping . . .” (gov’t reply br. at 24). Because the government’s 

Rule 11 briefs do not posit this as a legal issue in need of resolution, we deem it 

waived. 
47 

preponderance of the evidence that stone from Salisbury Quarry, without shaping, met 

the Contract requirements. 

III. Expert Testimony

A. Both Parties Proffer Expert Testimony 

Appellant correctly states that the extent to which this tribunal relies upon 

“expert testimony is an evidentiary determination left to the sound discretion of the 

Board” (app. reply br. at 16 (quoting Lebolo-Watts Constructors 01 JV, LLC, ASBCA 

No. 59740 et al., 21-1 BCA ¶ 37,789 at 183,427)). Appellant proffers three 

individuals, Mr. Cox, Dr. Griggs, and Mr. Leavitt, as “experts to provide opinions 

regarding the acceptability of the unmodified Salisbury blocky stone which was cut 

stone rather than blasted stone” (app. br. at 21). The government does not challenge 

their designations as experts (gov’t reply br. at 10-11, 16). The government offered one 

expert, Dr. Williams, on the “issue of whether the Salisbury Quarry Stone met the 

Contract requirements” (gov’t br. at 26). Appellant does not argue that Dr. Williams is 

not qualified as an expert; rather, appellant argues that Dr. Williams is less credible 

than Trade West’s experts (app. reply br. at 15). We find that all four individuals 

possess varying degrees of expertise regarding the placement of stone along coastal 

waterways (findings 60, 63, 66, 75) and neither party has challenged the admission of 

the other parties’ expert submissions into evidence. 

Although appellant established the education and experience of Mr. Cox, 

Dr. Griggs, and Mr. Leavitt, and we have considered their collective statements, as we 

set forth below, we do not regard their expressed opinions to be of sufficient weight to 

establish by preponderant evidence that the unshaped stone from Salisbury Quarry met 

the Contract requirements. Our decision discusses, in detail, statements and positions 

proffered by each individual, and, in so doing, we have exercised our sound discretion 

in deciding which statements and positions to accept and which to reject. S.W. Marine, 

Inc., San Pedro Div., ASBCA No. 28196, 86-2 BCA ¶ 19,005 at 86,241 (“trier of fact is 

not bound by expert testimony and may substitute his common sense judgment for that 

of the expert”). We also have considered the parties’ proffered expert testimony, not as 

a means by which to interpretate the contract, but rather as a means to interpret various 

terms of art and to assist us in the factual (not legal) determination whether stones from 

Salisbury Quarry complied with the Contract’s unambiguous requirement that they 

form a compact mass and interlock with each other and the existing stones. 

Parsons-UXB Joint Venture, ASBCA No. 56481, 12-1 BCA ¶ 34,919 at 171,695 

(“[e]fforts by experts to apply the facts to specialized legal terminology to attempt to 

establish whether a particular legal standard has been satisfied should be excluded” 

(citation omitted). 
48 

B. Trade West’s Attempt to “Discount” Dr. Williams’s Testimony is Misplaced 

We note that Mr. Leavitt and Dr. Williams both were involved in various 

aspects of the South Jetty repair project. Appellant suggests that we should “discount” 

Dr. Williams’s statements because he was involved “in the preparation of the plans and 

specifications out of which this appeal arises” (app. reply br. at 17).9

 Appellant 

argues, however, that Mr. Leavitt’s statements should not suffer the same fate (id. n.8), 

even though, as Mr. Leavitt’s affidavits make abundantly clear, Mr. Leavitt was 

extensively involved in preparing appellant’s proposal, prosecuting the work, and 

requesting that the government accept stone from Salisbury Quarry (findings 15, 

21-22, 27, 37, 41, 44-45, 47, 75-78). In support of its position, appellant states, 

“[w]hile the proffered expert testimony of Andy Leavitt also is from an employee of 

one of the parties, Mr. Leavitt’s opinions were independently peer reviewed and 

validated by Mr. Cox and Mr. [sic] Griggs who both are truly independent and not 

employed by Trade West” (app. reply br. at 17 n.8). However, a review of Mr. Cox’s 

affidavit and Dr. Griggs’s report establishes that neither individual referenced 

Mr. Leavitt’s affidavits nor “peer reviewed and validated” his specific opinions. 

Indeed, in its reply brief, appellant argues just the opposite, i.e., that “Mr. Leavitt 

Validates Mr. Cox’s and Mr. [sic] Griggs’ Opinions” (app. br. at 25).

Citing Ryan Co., ASBCA Nos. 41235, 42095, 94-1 BCA ¶ 26,539, appellant 

argues that Dr. Williams’s alleged bias as a government employee is greater than any 

alleged bias that Mr. Leavitt had as appellant’s employee because Dr. Williams 

approved the project drawings as the Chief of the Design and General Engineering 

Section (app. reply br. at 15 n.6, 18). In Ryan, the government expert was a principal 

of the architectural/engineering firm that prepared the drawings and specifications in 

question, and the Board expressed its concern that this created a bias “greater than any 

bias of appellant’s expert” (id. at 17 (quoting Ryan, 94-1 BCA ¶ 26,539 at 132,096)). 

Obviously, the facts in that appeal are readily distinguishable. Dr. Williams is a 

government employee who approved drawings in the course of his employment; he was 

not the principal of an outside company that prepared contract drawings and 

9

 Appellant argues that “the Corps would have us believe that Mr. [sic] Williams’ work 

and approval resulted in a defective specification[,] but that we should now 

believe his supposed clear and unambiguous opinions” (app. reply br. at 16 n.7). 

However, neither party argues that the Contract specifications were “defective.” 

Indeed, appellant specifically states that it “does not argue that [Dr. William’s] 

work in drafting the specifications and drawings was defective or resulted in an 

ambiguity” (id. at 15). To the extent that appellant now is suggesting that the 

specifications were defective, it could be argued that this created an ambiguity, 

thus allowing the consideration of pre-dispute extrinsic evidence such as the 

parties’ agreement at the outset of the Contract to utilize blasted, jagged stone 

from Fountain Quarry, which met the Contract specifications. 
49 

specifications for the government, and who’s company’s reputation potentially was put 

at issue because of various problems caused by possible design deficiencies. 

Considering Dr. William’s declaration as a whole, even though he approved the 

drawings prepared by the Design and General Engineering Section, we do not perceive 

a bias that we believe renders his opinion unreliable.10

IV. Appellant Has Not Established by Preponderant Evidence that Unshaped 

Stone from Salisbury Quarry Met the Contract’s Requirement that Stones 

Be Angular in Shape 

In our previous decision, we found that Contract specification 2.1.2 required 

armor stone “be furnished in blocky and angular shapes.” Trade West I at 183,075. In 

its Rule 11 brief, appellant contends, and the government does not dispute, that stone 

from Salisbury Quarry was “blocky” (app. br. at 19; gov’t br. at 33). The parties 

disagree, however, as to whether the unshaped stone from Salisbury Quarry was 

angular. Trade West argues that all three of its “proffered experts provided credible 

and logical explanations and opinions that the unmodified blocky stone was, in fact, 

‘angular’” (app. reply br. at 10). The government argues that “[t]he supplemental stone 

proposed was not ‘angular’ in shape” (gov’t reply br. at 1). 

In essence, appellant argues that the unshaped stone from Salisbury Quarry is 

“angular” because the stone had angles and was not round (app. br. at 18). As support, 

appellant cites an attachment to Mr. Leavitt’s affidavit, setting forth the MerriamWebster definition of that word as “having one or more angles” (id.; finding 25), and 

references the opinion of Dr. Griggs, which states, “[a]ny angle, whether 5, 60, 90 or 

145 degrees is an angle” (app. br. at 23; finding 70). 

In contrast, Dr. Williams states in his declaration that “[t]he requirement for the 

stone to be furnished in ‘blocky and angular shapes’ has specific meaning with regard 

to coastal engineering erosion control structures and is commonly understood to mean 

blasted rock with sharp, random, angular shapes” (finding 62). We find this is 

consistent with Contract specifications requiring that “stone shall be furnished in blocky 

and angular shapes” and “stone shall be furnished in random sizes” (findings 4-5). This 

also is consistent with Mr. Leavitt’s statements in his affidavit that “[w]hen initially 

performing this contract, I planned to use large stones produced as a byproduct from 

10 Appellant also relies upon two Board decisions wherein we questioned the credibility 

of former government employees who testified as experts and who were engaged 

on a contingent fee basis (app. reply br. at 16) (citing Cosmic Constr. Co., 

ASBCA Nos. 24014, 24036, 88-2 BCA ¶ 20,623; Melville Energy Sys., Inc., 

ASBCA No. 33890, 87-3 BCA ¶ 19,992). Regarding Dr. Williams’s credibility, 

the facts presented in those appeals obviously are in no way similar to those 

presented here. 
50

blasting operations to produce aggregate” and that “[b]lasted rock is often used for 

those projects because it is cheaper to produce” (finding 76).

Dr. Griggs challenges Dr. Williams’s opinion, stating, “Mr. [sic] Williams does 

not cite a document where this specific meaning is explained or defined, or by where it 

is ‘commonly understood to mean blasted rock with sharp, random, angular shapes’” 

(finding 69). Although Dr. Griggs criticizes Dr. Williams because he “does not cite a 

document where this specific meaning is explained,” or “where it is ‘commonly 

understood,’” Dr. Griggs does not disagree with the premise of Dr. Williams’s

statement (id.).

As support, Dr. Williams cites CEM Part IV, Chapter 2, which includes images 

of manufactured concrete armor units and categorizes such units as either massive or 

blocky, bulky, slender, or multi-hole cubes. Massive or blocky units are then described 

as “cubes incl[uding] grooved types, parallelepiped block.” (Finding 62) Dr. Williams 

concludes that “[w]hile the stones provided by Trade West Construction originating 

from the Salisbury Quarry fit the definition of ‘massive/blocky’” because they are 

functionally identical to the armor units shown in . . . the CEM, these stones would not 

be considered ‘angular’ because their corners are at or close to 90-degree angles,” that 

“[a]ngular stones have either acute (angles less than 90-degrees) or obtuse (angles 

greater than 90-degrees) angles, but no flat sides with 90-degree angles,” and “[t]he 

term “angular” is not used to describe cubic or parallelepiped-shaped stone” (id.). We 

find that Dr. Williams’ reliance upon extrinsic evidence of trade practice and custom is 

appropriate under these circumstances. TEG-Paradigm Envtl., Inc. v. United States, 

465 F.3d 1329, 1339 (Fed. Cir. 2006) (even where a contract is unambiguous, 

“evidence of trade practice may be useful in interpreting a contract term having an 

accepted industry meaning different from its ordinary meaning”) (quoting Hunt Constr. 

Group, Inc. v. United States, 281 F.3d 1369, 1373 (Fed. Cir. 2002)).

Dr. Griggs also criticizes Dr. Williams’s opinion, stating, “[w]hile he calls the 

corner of the Salisbury stones 90-degree angles, he concludes in the same sentence that 

they are not angular,” and “[i]t seems that Mr. [sic] Williams has made up a definition 

of angular stones to have only acute (less than 90-degrees) or obtuse (greater than 

90-degrees) angles. What about an angle or corner at 85 or 95 degrees? Would these 

stones be considered angular?” (Finding 70) As noted by the government, both 

Dr. Griggs (and Mr. Leavitt, in his second affidavit) “take issue with that statement[,]

arguing 90 degrees is still an angle” (gov’t br. at 34). We agree with the government 

that “both miss Dr. Williams’ point that ‘angular’ would not be used to describe a cubic 

or parallelepiped shaped stone, implying such description would be redundant” (id.).

As additional support for his position, Dr. Williams relies upon other industry 

publications discussing stones, examined at the granular level, such as ASTM 

D2488-17, Table 2, entitled “Standard Practice for Description and Identification of 
51

Soils (Visual-Manual Procedures)” (finding 62). According to Dr. Williams, that 

document provides “criteria for describing angularity of coarse-grained particles” and 

describing “angular as ‘particles hav[ing] sharp edges and relatively plane sides with 

unpolished surfaces’” (id.). Dr. Williams also notes that Figure 3 of ASTM D2488-17, 

Table 2, includes photographs of different stone shapes, under the heading “Typical 

Angularity of Bulky Grains,” and that none of the stones pictured “include cubic- or 

parallelepiped-shaped stones” (id.).

In response, appellant argues that “Mr. [sic] Williams resorted to reliance upon a

soil specification, concrete armor units as well as other errors in methodology 

demonstrating the flaws forming the basis of Mr. [sic] Williams’ opinions” (app. br. 

at 25). Dr. Griggs criticizes Dr. Williams’s comparison of “small natural pebbles 

weighing less than an ounce with quarried or blasted stones weighing 14 – 22 tons,” 

which Dr. Griggs labels “an unsatisfactory and inappropriate comparison” (finding 70).

However, appellant’s argument is disingenuous given that at the outset of this 

dispute, appellant likewise offered and relied upon a similar “granular level” example 

in its attempts to define the meaning of “angular.” In a letter to the contracting officer 

requesting approval of stone from Salisbury Quarry, Mr. Potter, appellant’s quality 

control manager, stated that “[a]fter extensive digging into what defines a stone as 

‘blocky and angular’ we found several credible sources, all of which have similar 

definitions. . .” (finding 24). As support for appellant’s position regarding the 

definition of angular “as ‘having one or more angles,’” Mr. Potter, like Dr. Williams,

examined comparisons of stones at the granular level, noting that “the USGS interprets 

‘angular’ at the granular level as being the ‘opposite of round’” (id.). An attachment to 

Mr. Potter’s letter stated, in part, “[t]he following excerpt applies to the granular level, 

but still helps us in discovering the many definitions of angular” (finding 25). In a 

section discussing grain shape is the statement, “When rocks first break apart, they 

are split into sharp, angular pieces . . .” (id.) (bold typeface in original). The USGS 

definition of angular offered by appellant supports Dr. Williams’s statement, wherein 

he “describes angular as ‘particles [that] have sharp edges and relatively plane sides 

with unpolished surfaces,’” as opposed to “cubic- or parallelepiped-shaped stones”

(finding 62).

Appellant’s “extensive digging” in search of definitions for blocky and angular 

indicates an after-the-fact effort to find support for its proposition that unshaped stone 

from Salisbury Quarry complied with Contract specifications. It also reflects an

attempt by appellant to read the specifications in a manner different than how appellant 

interpreted the specifications when it proposed the use of Fountain Quarry stone; all for 

the purpose of requiring the government to accept armor stone that admittedly was 

different in shape than the type previously agreed upon by the parties. Trade West I

at 183,077 (“Trade West's prior performance reflected its belief (and confirmation) that 
52

Fountain Quarry stone met Contract requirements,” and “that Fountain Quarry and 

Salisbury Quarry produced different types of armor stone”).

11

Appellant argues that the “typical cross sections in the contract drawings and the 

existing jetty cross sections . . . are consistent with the use of interlocking sawn stone” 

(app. br. at 37). Indeed, both Mr. Leavitt and Dr. Griggs cite Contract Drawing CN301, 

which depicts design cross-sections, as support for their positions regarding the proper 

shape of armor stone, yet they come to opposite conclusions (finding 13). Mr. Leavitt 

states that Drawing CN301 “showed stone which were blocks and ‘blocky’ and 

‘angular’ and not the jagged stones produced by blasting (though the blasted stone 

meets the contract requirements)” (finding 76). In contrast, Dr. Griggs states, regarding 

Drawing CN301, that “[w]hile the stone descriptions state that the rock to be used 

should be angular, the stones depicted on each of the 68 cross-sections are not angular 

but more spherical, which would not be stable on a jetty exposed to high wave energy, 

and in fact, would not be stable on any stone structure” (finding 68). Note 4 to 

Drawing CN301 stated that the stones depicted provide an example of proper stone 

placement and are merely general representations, not a mandate as to the size to be

utilized (finding 13). Although Mr. Leavitt and Dr. Griggs both reference Note 4, they 

seem also to ignore its import (findings 68, 76).

That appellant’s quality control manager, Mr. Potter, recognized the difference 

between the different types of stone is evident in his correspondence with Mr. Cox,

wherein he stated that the jetty structure “is primarily comprised of jagged angular 

boulders,” while “[t]he stones we are looking to place on top of this structure are of a 

blocky granite” (finding 52). Mr. Potter then asks, “[t]he question in a nutshell is will 

blocky stones interlock with jagged boulders?” (id.). Additional evidence of 

Mr. Potter’s concern regarding the use of blocky stone is reflected in a February 10, 

2016, email, in which Mr. Potter provided to the government a photograph of stone 

available from another site (finding 17). The stone from the alternative site resembles 

the blocky, unshaped stone from Salisbury Quarry (id.). Mr. Potter asked Mr. Serrano 

11 Our previous decision held that, “although ‘extrinsic evidence may not be used to 

interpret an unambiguous contract provision,’ tribunals ‘have looked to it to 

confirm that the parties intended for the term to have its plain and ordinary 

meaning.’” Trade West I at 183,076. We also held that the “pre-dispute 

extrinsic evidence of the parties' intent and contract interpretation ultimately 

may be entitled to ‘great weight,’ [but] the factual dispute regarding whether 

Salisbury Quarry stone met the contract requirements first must be addressed” 

(id. at 183,077). Because we now hold that appellant has failed to establish by a 

preponderance of the evidence that the unshaped stone from Salisbury Quarry 

met the Contract specifications, we need not reach the issue of whether the 

parties’ pre-dispute Contract interpretation “is entitled to ‘great, if not 

controlling, weight.’” Trade West I at 183,076 (citations omitted).
53 

whether the government would be interested in using it “along the Jetty,” stating, “[i]f 

there are any concerns with the shape of the stones we can break off sections of the 

edges to create a less blocky shape, but only if necessary” (id.). Mr. Potter raised his 

concerns prior to appellant’s request that the government accept stone from Salisbury 

Quarry (findings 17, 19-21). 

Considering the record evidence offered by the parties and the statements of the 

parties’ experts, we find that appellant has failed to establish by a preponderance of the 

evidence that stone from Salisbury Quarry met the Contract requirement that the stone 

be angular in shape. 

V. Appellant Has Not Established by Preponderant Evidence that the Armor 

Stone Offered by Trade West Met the Contract’s Requirement that Stones be 

of Varying Sizes and Shapes 

In our previous decision, we found there was no dispute that “the Contract 

specifications, taken together, required ‘blocky and angular’ stones, as well as stones of 

varying sizes and shapes.” Trade West I at 183,075. The government argues that the 

unshaped stone from Salisbury Quarry was not “of varying shape as required by the 

contract, but rather was parallelepiped or rectangular block shaped with flat sides,” and 

that the government “reasonably concluded initially the supplemental stone would fail 

to form a compact, interlocking mass of stone” (gov’t reply br. at 1). Appellant argues 

that “[w]hile the stones were blocky, they were not rectangular,” and that “the 

specifications do not prohibit rectangular parallelogram shapes” (app. br. at 29).12 

The parties do not now directly challenge our finding that the Contract required 

blocky and angular stones, as well as stones of varying sizes and shapes. Appellant 

argues, however, that “[a]s related to placement of the stone, the stone was required to 

be of varying shapes and sizes to assist in the placement of the stone” (app. reply br. 

at 11) and that “[i]t is disingenuous to state that ‘varying shapes’ in the placement 

section of the specifications should override the ‘blocky’ requirement in the actual 

armor stone specification” (id. at 12). Notwithstanding appellant’s assertion to the 

contrary, our interpretation of the Contract does not result in one specification 

“overriding” another. Rather, in finding that the specifications required ‘blocky and 

angular’ stones, as well as stones of varying sizes and shapes,” our interpretation of the 

Contract reads the two specifications together, giving harmony to both provisions. 

Hometown Fin., Inc. v. United States, 409 F.3d 1360, 1369 (Fed. Cir. 2005). Indeed, 

appellant acknowledged previously that the intent of the specifications was “to provide 

12 “A parallelogram is a four-sided plane figure having opposite sides parallel and 

includes a square, a rectangle (oblong), a rhombus, or a rhomboid.” Application 

of Gewiss, 435 F.2d 904, 905–06, 58 C.C.P.A. 824, 825-826 (1971). 
54

blocky and angular stones of various sizes and shapes” Trade West I at 183,075 (citing 

app. mot. at 4).

In its initial Rule 11 brief, appellant argues that “[t]he sample block sizes were 

of various sizes and shapes (different parallelepiped sizes),” (app. br. at 19), and that 

“[s]ince the angles are different for each blocky stone (and for many of planes on the 

blocky stone), the shapes are not uniform” (id. at 29). In its reply brief, appellant 

argues that the unshaped stone from Salisbury Quarry met that requirement, stating that 

“[t]he stones clearly were of different sizes as shown by Trade West,” because “[t]he 

stones varied in shape within the context of remaining blocky since the various shapes 

were of blocky stones and not stones in general” (app. reply br. at 12).

In his February 29, 2016, letter to the government, Mr. Potter stated that, 

because no two stones are exactly the same, they, therefore, meet the requirement of 

being of various sizes and shapes, noting, “[t]he stone we are proposing to use 

consistently produces various sizes and shapes with no two stones holding the same 

dimensions, angles or shapes,” and that “we measured several blocks and found that 

every sample produced its own unique dimensions” (finding 24). However, Mr. Potter,

in an internal email to Mr. Leavitt sent one day later, on March 1, 2016, expressed his 

concern regarding whether unshaped stone from Salisbury Quarry met the requirements 

of the specification, paragraph 3.2.4 (finding 27). Mr. Potter states that the government 

“may try to focus on the ‘various shapes’ verbiage and say that if all, or the majority of, 

the stone is rectangular/cube like in shape, then the shapes don't vary” (id.). Mr. Potter 

observed, “[w]e need to have a good response to that argument. I don't know if just 

saying that the dimensions of the stones vary will be sufficient (i.e. one stone has the 

dimension of 5'x6'x8' and another has the dimension of 6'x7'x11'). This does cover the 

various sizes, but not shapes.” (Id.)

Appellant argues in its reply brief that Mr. Potter’s March 1, 2016, email 

“constitutes inadmissible hearsay,” is “of little probative value,” and “was merely a 

preliminary discussion and Mr. Potter, prior to these discussions, officially issued 

TWC001 at R4, Tab 047a [appellant’s Serial Letter TWC-0001, dated 

February 29, 2016] which fully supports Trade West’s position” (app. reply br. at 21 

(bold typeface in original)). Although appellant casts the letter as “merely a 

preliminary discussion,” appellant recognizes that Mr. Potter’s March 1, 2016, email, 

was issued after his February 29th email. The March 1, 2016, email is part of the 

official record in this appeal. The document was submitted on June 30, 2021, “[i]n 

accordance with the Board’s Order dated April 1, 2021,” as tab 48 to the parties’ “Joint 

Supplemental Rule 4 Submission.” The parties’ June 30, 2021, Rule 4 submission,

contained no objection by either party to any of the documents included in the Joint 
55

Supplemental Rule 4 Submission. 13 As to the document’s probative value, as the 

finder of fact, we have considered the document’s contents and evaluated the weight, 

persuasiveness, and credibility it should be given. CANVS Corp., ASBCA Nos. 57784,

57987, 18-1 BCA ¶ 37,156 at 180,894 (“[a]s the finder of fact, the Board is responsible 

for evaluating the credibility, persuasiveness, and weight accorded to conflicting 

evidence in the record”). We find that the contemporaneous, internal email of 

appellant’s quality control manager is evidence relevant to the Board’s factual 

determination of whether appellant has met its burden of proof by a preponderance of 

the evidence. ECC Int’l, LLC, ASBCA No. 58875, 20-1 BCA ¶ 37,683 at 182,961 n.12

(considering contemporaneous, internal contractor emails that established subcontractor

was responsible for the decision to perform work not in accordance with contract).

Regarding the issue of whether the armor stone met the Contract’s varying 

shapes and sizes requirement, the statements of appellant’s experts fail to provide the 

“good response” sought by Mr. Potter. Although Mr. Cox summarily states that the 

specification requires “stones of various shapes and sizes be used,” his affidavit is 

devoid of any discussion regarding whether the stone from Salisbury Quarry met that 

specification requirement (finding 64). Indeed, we note that Mr. Cox recognized the 

importance of different shaped stones, stating that “[d]epending on the size and 

configuration of the void and the method of placement, different shaped stones would 

interlock better than other stones” (id.). The report provided by Dr. Griggs, offered by 

appellant as a peer review and validation of Mr. Cox’s opinion (app. br. at 21), likewise 

does not substantively address the requirement that the armor stone be of “varying 

shapes and sizes” (finding 68). Instead, Dr. Griggs simply quotes Mr. Cox’s statement 

that the specification required “stones of various shapes and sizes be used,” concluding, 

“I am in complete agreement with these statements. Placement of the stone is of 

critical importance in achieving stability” (finding 71).

Mr. Leavitt’s first affidavit does not mention the Contract’s varying sizes and 

shapes requirement (finding 76). Mr. Leavitt’s second affidavit makes several 

references to the specification requirement. Still, it does so only summarily, stating, 

“[e]ach were of different sizes and shapes with differing angles and weights,” “the 

shapes and sizes of the Salisbury stone varied greatly,” and “these were not cubes, but 

were blocky and angular stones of varying sizes and shapes[,] which were clearly 

13 Our April 1, 2021 Order, required the parties to meet, confer, and submit to the 

Board their joint Rule 4 supplement, “with any unresolved objections to the joint 

Rule 4 supplement (and the basis for those objections) noted in the filing.” 

Appellant having failed to lodge any objection to this document as required by 

our April 1, 2021 Order, has waived its right to object to its inclusion in the 

record at this stage in the proceedings. X-Tyal Intern. Corp., ASBCA 

No. 24353, 84-2 BCA ¶ 17,251 at 85,919 (appellant waived right to object to 

documents by failing to raise objections in a timely manner).
56 

complied with the specification armor stone requirements” (finding 78). It is well 

established that “[g]eneralized conclusory, unsupported opinion type statements do not 

demand weight when such statements are little more than self-serving conclusions.” 

L.B. Samford, Inc., ASBCA No. 32645, 93-1 BCA ¶ 25,228 at 125,660 (citing Newell 

Clothing Co., ASBCA No. 28306, 86–3 BCA ¶ 19,093, aff'd, Newell Clothing 

Company, Inc. v. United States, 818 F.2d 876 (1987)). This especially is true where the 

conclusory opinions concern “fact[s] we are called upon to decide.” Universal Yacht 

Servs., Inc., ASBCA No. 53951, 04-2 BCA ¶ 32,648 at 161,579. 

Mr. Leavitt challenges Dr. Williams’s statement that “blocky and angular 

shapes . . . would not be used to describe uniformly shaped cubes or parallelepiped 

shaped stone like that produced by the Salisbury Quarry” (finding 62), stating that 

Dr. Williams “implies that the stone supplied from the Salisbury Quarry were ‘uniformly 

shaped’, which in fact, is not true since all the stones greatly varied in shape and size and 

no two stones were identical” (finding 78).14 However, Mr. Leavitt’s conclusory 

statement in no way establishes that the parallelepiped stone offered by appellant met the 

varying sizes and shapes requirement of the Contract specification. As noted by Mr. 

Potter, “I don't know if just saying that the dimensions of the stones vary will be 

sufficient (i.e. one stone has the dimension of 5'x6'x8' and another has the dimension of 

6'x7'x11'). This does cover the various sizes, but not shapes.” (Finding 27) 

Considering the record evidence offered by the parties and the statements of the 

parties’ experts, we find that appellant has failed to establish by a preponderance of the 

evidence that stone from Salisbury Quarry met the Contract requirement that it be of 

varying sizes and shapes. 

VI. Appellant Has Not Established by Preponderant Evidence that Armor 

Stone Offered by Trade West Met the Contract’s Compact Mass and 

Interlock Requirements 

 

As we found previously, “Specification 3.2.4 required that ‘armor stones of 

various sizes and shapes shall be distributed such that they form a compact mass and 

interlock with each other and the existing stones.’” Trade West I at 183,075. Appellant 

correctly states that the purpose of the Contract was “to provide a durable and longstanding repair to the Masonboro Inlet Jetty through the placement of heavy 14-20 ton 

armor stone into the structure” (app. br. at 32). Indeed, the Contract specifications 

required that armor stone “be placed in a single layer” and the Contract drawings 

provided that “[t]he intent of the project is to provide one new layer of armor stone . . .” 

14 Mr. Leavitt also states, “[i]n my experience, the purpose of this requirement is to 

provide a varied stock of stone of various shapes and sizes to allow the operator 

placing the stone the choice of stone to fill a void or to build out the slope to the 

design elevation) (id.). 
57

(findings 10, 12). Mr. Leavitt recognized that Contract “required the Contractor to 

provide and place one layer of Armor Stone on the Masonboro Inlet Jetty” (finding 76).

The government notes, correctly, that relevant to this inquiry is the type of stone 

that was in place on the existing jetty prior to commencement of work and upon which 

a new layer of armor stone was to be placed (gov’t br. at 32). Dr. Griggs’s report 

recognizes that the jetty originally was constructed of “randomly shaped and angular 

blasted” stone (finding 74). There is no dispute that appellant chose, and initially 

provided, blasted, jagged stone from Fountain Quarry, and that the stone met the 

Contract specifications. Trade West I at 183,069.

It also is undisputed that the armor stone from Fountain Quarry initially 

provided by appellant is a different shape than the armor stone from Salisbury Quarry 

that appellant offered as a replacement and that stones from the two sources were 

quarried differently (blasted versus cut), which resulted in different-shaped stone. 

Trade West I at 183,076-77. Indeed, Mr. Leavitt states in his affidavit that “blasted 

rock is often used for those projects because it is cheaper to produce” (finding 76). The 

record contains numerous photographs of the two different types of stone, which 

establish the marked difference between blasted versus cut quarry stone and that 

unshaped stone from Salisbury Quarry was of one basic shape – parallelepiped

(finding 55). Mr. Leavitt suggested as much, stating that stone from Salisbury Quarry

was “‘parallelepipeds’ which are defined as blocks with six parallelogram faces”

(finding 78).

In support of its argument that stone from Salisbury Quarry did not meet the 

Contract’s interlocking requirement, the government relies upon statements made by 

Dr. Melby (gov’t br. at 37), a USACE expert on armor stones (finding 28). During 

Contract performance, Dr. Williams sought Dr. Melby’s “advice or recommendation” 

regarding appellant’s request to utilize stone from Salisbury Quarry. Dr. Melby 

responded by email, stating that he agreed with Dr. Williams and that “[c]ubic stones 

do not interlock well,” and are “[o]ut of spec” (finding 30). Mr. Leavitt alleges in his 

affidavit that Dr. Williams somehow “coached” Dr. Melby with respect to his opinion 

that stones from Salisbury Quarry would not properly interlock with the stones in place 

at the South Jetty (finding 78). We reject Mr. Leavitt’s allegation that Dr. Williams

“coached” Dr. Melby simply by inquiring, during Contract performance, whether a 

government expert on armor stone, concurred with Dr. Williams’s belief that the stone 

offered by appellant would not properly interlock with existing Jetty stone. 

Dr. Williams’s interaction with Dr. Melby on that issue was completely proper.15 

15 We note that appellant’s counsel did not proffer the same argument in appellant’s 

Rule 11 briefs. We also note that Mr. Leavitt’s affidavits sometimes read more 

like a legal argument than a witness simply stating the facts or proffering an 

opinion regarding the import of certain facts, thereby diminishing his 
58

Dr. Williams explained in his declaration that “[c]ubes and parallelpiped 

stones . . . do not interlock well with adjacent stones that are of different types and 

shapes,” noting that “[c]ubes and parallelepiped stones can interlock well with other 

cubes and parallelepiped stones when they can fit into a structure like bricks in a 

building,” but “they are not compatible for interlocking when placed with a different 

type of stone that already exists, such as the blocky and jagged, angular stone found 

at the Masonboro Inlet South Jetty prior to this project” (finding 62). Mr. Leavitt again

criticizes Dr. William’s opinion, stating, “Paragraph 9 of Mr. [sic] Williams' 

Declaration is conclusory and mistaken since none of the Salisbury Quarry stones were 

cubes” (finding 78). What Mr. Leavitt leaves out of his criticism is that Dr. Williams 

specifically referred to stone produced by Salisbury Quarry as “uniformly shaped cubes 

or parallelepiped shaped” (finding 62). Indeed, in his affidavit, Mr. Leavitt 

subsequently agrees with Dr. Williams, stating that Dr. “Williams was careful and 

accurate not to describe the stone as rectangular, but rather as "parallelepipeds'' which 

are defined as blocks with six parallelogram faces” (finding 78).16

As discussed previously, appellant’s quality control manager, Mr. Potter,

recognized the distinction between the armor stone already in place at the jetty and the 

unshaped stone from Salisbury Quarry (finding 52). In his email, he informed Mr. Cox

that the existing jetty structure “is primarily comprised of jagged angular boulders 

weighing between 14 and 22 tons,” and he expressed his concern about whether stones 

Trade West proposed to use from Salisbury Quarry would interlock with the jetty as 

constructed, stating “[t]he stones we are looking to place on top of this structure are of a 

blocky granite also weighing between 14 and 22 tons” (id.). Mr. Cox responded, 

expressing concern about the blocky stones interlocking and stating, “[y]ou did not say 

how thick or how many layers you plan so I’m assuming this is placing a repair veneer 

over the old so likely just one layer. Likely you will not get much interlock.” 

(Finding 53) Mr. Cox acknowledged the problem with interlocking, stating, “[i]f you 

are placing the blocks on top of the existing armor of the jetty, I would say no, not a 

good idea” (id.), and “if the stone was installed as a veneer over the current stone, that 

the interlocking between the veneer and the current structure may not provide for

persuasiveness. Mega Constr. Co. v. United States, 29 Fed. Cl. 396, 433-34 

(1993) (noting “a strong partisan position by [expert] in favor of plaintiff, in 

conflict with one of his duties as an expert witness to objectively assist the court 

to understand the facts and issues”).

16 Mr. Leavitt also challenges Dr. “Williams’s “bricks in a building” analogy as 

inapplicable “since the shapes and sizes of the Salisbury stone varied greatly” 

(finding 78). Yet, Mr. Leavitt offers a similar analogy in his first affidavit, 

stating that “[s]tone interlocking is best exemplified in history by the pyramids 

and castles whereby stone blocks are laid together in full contact with virtually 

no voids” (finding 76).
59

proper interlocking (finding 64). Mr. Cox’s question regarding the installation of armor 

stone as a veneer over the current stone was on point, as the Contract specified that 

armor stone “shall be placed in a single layer” (findings 10, 13).

In his affidavit, Mr. Cox attempts unsuccessfully to reconcile his earlier,

contrary email statements with appellant’s position in this appeal, stating, “I have since 

learned that each stone for this Project was individually selected and placed into the 

jetty to fill voids then existing in the jetty and to build the jetty to a specified 

elevation,” that “[t]he interlocking is achieved by the skillful placement of the stone in 

the jetty”, and that effective interlocking is “primarily a result of proper placement of 

angular and blocky stone” (finding 64). Yet Mr. Potter’s initial question to Mr. Cox 

explicitly concerned the issue of “interlocking,” asking, “in a nutshell is will blocky 

stones interlock with jagged boulders?” (finding 52). Assuming that effective 

interlocking is, as Mr. Cox states in his affidavit, “primarily a result of proper 

placement of angular and blocky stone” (finding 64), it is unclear why Mr. Cox’s initial 

answer to Mr. Potter did not set forth this alleged primary tenant of proper stone 

placement.

In his affidavit, Mr. Cox speculates that “[b]locks of stone, such as proposed by 

Trade West for this project[,] could interlock into the structure if the properly sized 

stone for the void was chosen and the stone was properly placed to eliminate the void 

and lock the stone in place so it did not rock”, and “[t]he blocks of stone, if properly 

selected and placed, should be able to achieve interlock” (id.) (emphasis added).

However, such mere speculation does not equate to sufficient proof of appellant’s 

position. We find unpersuasive Mr. Cox’s attempts to walk back his earlier statements 

regarding the interlocking capability of a single layer of blocky stone installed on top of 

the jetty. ASCT Grp., Inc., ASBCA No. 61955, 22-1 BCA ¶ 38,124 at 185,199

(concluding that “contemporaneous statements and actions of the parties to be of 

greater weight than the declarations submitted eight years after the fact”).

Dr. Griggs states his general agreement with Mr. Cox that proper interlocking is 

a characteristic not simply of geometry but “primarily a result of the proper placement 

of angular and blocky stone,” and concludes that “[p]lacement of the stone is of critical 

importance in achieving stability” (finding 71). However, Dr. Griggs, like Mr. Cox, 

proffers only general statements that do not specifically establish that unshaped stone 

from Salisbury Quarry would meet the Contract’s compact mass and interlock

requirements (findings 71, 74). Therefore, simply restating and agreeing with 

Mr. Cox’s conclusory opinions is insufficient to establish their efficacy and “is 

insufficient for appellant to carry its burden.” Matcon Diamond, Inc., ASBCA 

No. 59637, 20-1 BCA ¶ 37,532 at 182,260.

As support for its argument that unshaped stone from Salisbury Quarry meets 

the Contract’s compact mass and interlocking requirement, appellant also cites a 
60

document produced during Contract performance entitled “Mockup of Jetty 

Conditions Location: 1408 Point Harbor Road (Staging Area)” (app. br. at 9, 19, 22, 

27-29, 34, 36-37; (finding 31)). Appellant suggests that “the Salisbury stone enjoyed 

greater contact with adjoining stones than the Fountain Quarry stones,” and that “[t]he 

Salisbury stone blocks interlocked better” (app. br. at 19). Appellant argues also “[t]he 

mockup of the jetty conditions as well as the expert opinions demonstrate that had the 

unshaped sawn quarried stones been used, Trade West had the sufficient skill to place 

the stone to interlock into the current structure forming a compact mass while repairing 

the voids and other jetty deficiencies of various sizes” (id. at 36).

Appellant’s mockup offered only one staging of the “jagged stone,” and two 

stagings or mockups of the “blocky and angular stone” (finding 32). Although 

appellant states that “jagged stones typically formed a bridge across underlying voids 

leaving larger gaps in the structure where the constant tidal actions would have access 

to pushing up on the stones,” we find that appellant’s singular example of the “jagged 

stone” is an insufficient basis upon which to conclude that “jagged stones typically” 

form a bridge (id.) (Italic typeface added).

17 Regarding the photographs depicting 

“blocky and angular stone,” we note that those stones extend considerably over and 

above the jetty stone upon which they are placed (finding 33). Yet, appellant’s analysis 

makes no mention of the effect that “constant tidal actions” would have on those 

“blocky and angular stone” that protrude out and over the stone base (finding 34). 

Ultimately, the mockup and photographs do not establish under the 

preponderance standard that stone from Salisbury Quarry would have met the 

Contract’s compact mass and interlock requirements. This fact is brought home by 

appellant’s expert, Dr. Griggs, who observes in his report regarding Trade West’s

“mockup of Salisbury Quarry stones,” that “it is difficult with just two photographs to 

compare the fit or embedment of the two different stone types” (finding 72). 

Nevertheless, Dr. Griggs concludes that “it appears that the cut stone from Salisbury 

Quarry, if well positioned, can achieve the compact and ‘interlocking’ requirement”

(id.). We find that Dr. Griggs’s recognition that it is “difficult” to conclude from the 

mockup the “the fit or embedment of the two different stone types” based upon just two 

photographs is an express recognition of the limitation of the mockup and the 

inadequate number of samples upon which appellant has based its conclusions. 

Dr. Grigg’s suggestion, based upon that mockup, that “it appears” stone from Salisbury 

Quarry “can achieve the compact and ‘interlocking’ requirement,” is not preponderant 

evidence necessary to support appellant’s argument that the mockup established 

17 Appellant placed at the South Jetty 277 stones from Fountain Quarry (finding 56). 

Yet appellant offered no examination of the interlocking capability of those 

277 jagged, blasted, stone they placed on top of the jagged, blasted, stone 

already in place on the South Jetty, or the extent to which those stones formed a 

“bridge.” 
61

“Salisbury stone blocks interlocked better” (app. br. at 19). Universal Yacht Servs., 

Inc., 04-2 BCA ¶ 32,648 at 161,579 (“Expert opinion evidence is not entitled to weight 

when ‘there is simply too great an analytical gap between the data and the opinion 

proffered.’”) (citation omitted). We find that appellant’s mockup, and accompanying 

photographs, fail to establish that the stone from Salisbury Quarry meets the Contract’s 

requirement that the stone “form a compact mass and interlock with each other and the 

existing stones” (finding 1), let alone that it would “provide the structure with the best 

possible results for interlocking” (finding 35).

18

Mr. Leavitt states in his second affidavit that “through careful placement, Trade 

West would have been able to wedge in the blocks with far less void space than the 

jagged stones produced by blasting or chipping of the sawn stone” (finding 78). As 

support, Mr. Leavitt cites appellant’s mockup, stating, “[i]n fact, we showed that 

precise fact in our mockup demonstration” (id.). However, as we have held, the 

mockup relied upon by appellant fails to establish this fact. Although Mr. Leavitt 

asserts that he observed the onsite conditions and believes appellant “would have been 

able to wedge in the blocks with far less void space than the jagged stone,” even the 

mockup relied upon by Mr. Leavitt cautions that “[w]hen placing stones at the jetty we 

will not have the luxury of choosing what stones to place as the majority of the stones 

will fall beneath the surface and we will be limited to the 8 or 10 stones we have onhand, which will diminish with each placed stone” (finding 32).

Regarding appellant’s attempts to bolster its argument that the government 

should have accepted the unshaped stone from Salisbury Quarry because of its alleged 

superior durability (app. br. at 36-37), appellant’s argument carries no legal 

significance. Even assuming that stone from Salisbury Quarry offered “superior 

durability,” such durability was not the government’s only priority, moreover, it is well 

established that “[t]he Government is entitled to insist on strict compliance with its 

contract specifications, and has no obligation to accept substitutes, even if the 

substitutes are equivalent or superior to that which is specified.” Carothers Constr. 

Co., Inc., ASBCA No. 41268, 93-2 BCA ¶ 25,628 at 127,545-46.

Ultimately, appellant’s argument fails because appellant has not established by a 

preponderance of the evidence that the stone it proposed to utilize, unshaped, would 

have successfully interlocked as required by the Contract. This is true even if we were 

to find that both parties’ expert statements were evenly balanced, which they were not. 

Marine Indus. Northwest, Inc., ASBCA No. 51942, 01-1 ¶ BCA 31,201 at 154,044 

(appellant failed to meet its burden of proof where evidence was evenly balanced based 

on the conflicting affidavits, and appellant failed to establish its position was more 

18 The government correctly notes that Mr. Cox also reviewed appellant’s “mockup of 

jetty,” but offered no opinion about the presentation in his affidavit (gov’t reply 

br. at 22, 28; finding 65).
62 

probable than not); Parsons Main, Inc., ASBCA Nos. 51355, 51717, 02-2 BCA 

¶ 31,886 at 157,539 (“Board assesses the probative weight of the two experts' opinions 

to be equal. Thus, the preponderance of evidence does not support the COE's 

contention”). 

VII. Alleged Use of Sawn Stone by Other USACE Districts for Other 

 Projects Does Not Mean That It Was Appropriate Here 

Appellant argues “that while the specifications permit the use of jagged stone, it 

also permits the use of sawn quarried stone which is superior to the jagged stone for 

providing a stable and long-lasting jetty repair,” and that “[n]o provision in the 

specification prohibits the use of sawn armor stone and Corps guidance typically 

includes sawn stone” (app. br. at 30). In support of its argument appellant’s cites what 

appears to be portions of a presentation by the USACE Chicago District, entitled 

“Armor Stone Durability In the Great Lakes Environment,” which depicts cut limestone 

blocks, wherein blocks were “[u]sed initially in ‘Laid Up’ structures,” and “[l]ater used 

in rubble mound and as capstone” (app. br. at 30 (citing R4, tab 85 (attachment to 

June 7, 2019, aff. of Mr. Leavitt at 84-85))). Appellant also cites paragraph 19 of 

Mr. Leavitt’s second affidavit as support, wherein Mr. Leavitt referenced another study 

concerning the Great Lakes, entitled “Monitoring Stone Degradation on Coastal 

Structures in the Great Lakes,” and made a distinction between rounded stone and 

blocky/angular stone, as well as the durability of sawn versus, blasted stone (app. br. 

at 30 (citing R4, tab 90 (June 8, 2021, aff. of Mr. Leavitt at 8, ¶ 19); finding 78)). This 

allegation has no bearing on the interpretation of the particular contract before us. 

The fact that a different USACE district recognized and discussed the existence 

and use of sawn stone in presentations concerning the Great Lakes region does not 

establish that the use of unshaped stone from Salisbury Quarry was appropriate for use 

in repairing the South Jetty, which is located along the Atlantic seaboard and previously 

was constructed with jagged, irregularly shaped stone. Indeed, Mr. Leavitt admits in 

his affidavit that “the Great Lakes are not the same as ocean conditions (which vary 

widely between locations) . . .” (finding 78) (emphasis added). 

Appellant’s similar argument, that “another Corps district approved the use of 

the Salisbury stone (same sizes) for coastal protection when proposed by Trade West in 

a subsequent contract” (app. br. at 33 (citing Leavitt Affidavit, Rule 4, tab 85 at ⁋ 28 

and Leavitt Supplemental Affidavit at Rule 4, tab 90 at ⁋ 5(a))), fares no better. The 

referenced project concerned a USACE revetment repair in Washington State “near 

Rialto Beach” (finding 76). As support, appellant cites “Tab No. 9” to his affidavit, 

which is a memorandum from Mr. Leavitt to the Seattle District “Design Team for 

Quillayute Revetment Repair” (findings 76-77). 
63

Although Mr. Leavitt apparently inquired from the USACE Seattle District 

whether the use of these stones “would be a problem,” nowhere in Tab No. 9 is there a 

statement by the Corps, or any other government official, wherein “the Corps 

confirmed that this was the preferred stone and superior to the cheaper jagged stone 

produced by blasting” (finding 76). Indeed, although Mr. Leavitt alleges in his initial 

affidavit that the Seattle District accepted Trade West’s proposal to utilize sawn quarry 

blocks (finding 76), in his supplemental affidavit, Mr. Leavitt states that Trade West 

decided to utilize “blasted stone since the blasted stone was less expensive” 

(finding 78). Other than to state that “sawn quarry blocks were approved,” appellant 

offers no details about the Seattle District project and provides no comparison between 

the revetment repair being performed on the Pacific Coast of Washington State and the 

placement of armor stone on an Atlantic Coast jetty composed of jagged, irregularly 

shaped stone, or any description of the type of stone currently in place at the revetment

(id.).

What is apparent, however, is the difference in specifications. Specification 3.3, 

Stone Placement, cited by Mr. Leavitt regarding the Seattle District project, apparently 

allowed for the placement of slab-like stone on the revetment, stating that “[n]o 

slab-like stone shall be placed with its broadest dimension facing upward, parallel to the 

finish grade line” (finding 77). In contrast, the South Jetty repair expressly forbade the 

use of slab-like stone, “[f]lat stones, tabular stones, slabs, . . . will be rejected”

(finding 5). Even assuming we had sufficient detail to make a proper comparison of the 

two projects, such evidence has no bearing upon interpretation of the Contract 

provisions here. Intram Co., ASBCA No. 44159, 94-1 BCA ¶ 26,375 at 131,180 (“fact 

that the Government clarified the contract requirements in the follow-on contract has no 

bearing on interpretation of this contract”); ECC Int’l, LLC, 20-1 BCA ¶ 37,683 

at 182,969 (“fact that the parties agreed to a variation on other task orders has no 

bearing on this Task Order”).19 And, as noted above, Mr. Leavitt readily admits that 

“ocean conditions . . . vary widely between locations . . .” (finding 78).

19 Indeed, the case advanced by appellant here is far more tenuous than that in Intram

and ECC Int’l. As described above in the text, those contracts were between the 

same parties and involved the same work. Here, we have different parts of the 

Corps and greatly different locations. There is no legal basis to tie them to the 

contract in dispute here.
64 

CONCLUSION 

 We have considered appellant’s remaining arguments and find they have no 

merit. The appeal is denied. 

 

 Dated: October 5, 2022 

DAVID B. STINSON

Administrative Judge 

Armed Services Board 

of Contract Appeals

I concur

RICHARD SHACKLEFORD

Administrative Judge 

Acting Chairman 

Armed Services Board 

of Contract Appeals

I concur

J. REID PROUTY

Administrative Judge 

Vice Chairman 

Armed Services Board 

of Contract Appeals

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

Armed Services Board of Contract Appeals in ASBCA No. 61068, Appeal of Trade West 

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

 Dated: October 6, 2022

PAULLA K. GATES-LEWIS

Recorder, Armed Services 

Board of Contract Appeals