ARMED SERVICES BOARD OF CONTRACTAPPEALS Appeal of

-- ) ) Burnham Associates, Inc. ) ) Under ContractNo. W912WJ-12-C-0009 )

APPEARANCE FORTHE APPELLANT:

APPEARANCES FORTHE GOVERNMENT: ASBCA No. 60780

John D. Fitzpatrick, Esq.

Pingitore & Fitzpatrick, LLC Cambridge, MA

Thomas J. Warren, Esq.

Acting Engineer ChiefTrial Attorney Theresa A. Negron, Esq.

EngineerTrial Attorney U.S. Army Engineer District, New England

OPINION BYADMINISTRATIVE JUDGE O'CONNELL

This appeal arises from a contract to perform dredging in Boston Harbor. Burnham Associates, Inc. (Burnham) submitted a certified claim seeking additional money on two issues: $334,464 due to the government's use ofapreviously undisclosed pre-dredge survey to calculate final quantities; and $70,144.94 due to delays causedby shipping traffic in the harbor. The parties haveboth filed motions for summaryjudgment and briefs supportingtheirrespective positions. Upon discussion with the Board regarding whether material facts were in dispute, the parties agreedto submitthis appeal
on the written record underBoard Rule 11. The Board allowedthe parties to file supplementalbriefs, Rule 4 supplements, or declarations. Only entitlement is before us. We sustain the appeal as to the pre-dredge survey but deny it withrespect to the shipping traffic delays.

FINDINGS OF FACT

1. On 16 May 2012, the U.S. Army Corps ofEngineers, New England District, (Corps or USACE) issued a solicitation for a project entitled "RockRemoval, Boston HarborBoston, Massachusetts" (R4, tab 6 at 1 ). The contract subsequently incorporated the solicitation (R4, tab 12 at 2). Pre-Dredge Surveys

2. The Geotechnical Data section ofthe solicitation stated that a USACE contractorhad conducted "abathymetric, geophysical and geotechnical investigation of
areas shown in the contract drawings from May-June 2010" (R4, tab 6 at 37). Somewhat

# I confusingly, however, the drawings indicatedthatthey werebased upon a hydrographic survey conducted in March 2011 (id. at 170-71).

3. The Summary ofWork section stated that seven areas ofrockhad been identified "duringthe recent subsurface investigations ofBostonHarbor" andthat there
were about 525 cubic yards ofmaterial to be removed (R4, tab 6 at43).

4. The Measurement and Payment section ofthe solicitationprovided that USACE wouldpay contract line item number (CLIN) 0002 (dredging and disposal of rock) "by computingthe volume between the bottom surface shown by soundings ofthe lastpre-dredge survey made before dredging begins andthe bottom surface shownby the soundings ofa post-dredge survey made as soon as practicable afterthe removal of the material" (R4, tab 6 at 50). The solicitationprovidedthatthe contractorwould not bepaid for material dredged outside the defined areas (id. at 152); itrefers to the material eligible for payment as the "payable quantity" (id. at 127).

5. Depths in areas thathave been dredged can change overtime due to currents, ship traffic stirring up thebottom, large tide fluctuations, and/orweather (R4, tab 38,

### ii 2 (supp. Preston decl.)). As a result, the Corps generally conducts a pre-dredge survey within six months ofthe start ofdredging (id. 

### ii 12). Consistent with this practice, the solicitation stated that anotherpre-dredge survey "may be performedbythe Government priortothe start ofContractor dredging operations at the dredging sites" (R4, tab 6 at 43-44). However, the Corps opted not to conduct a pre-award/pre-dredging commencement survey (R4, tabs 9-10).

6. Whilethebidders only knew aboutthe March 2011 and earlier surveys, the Corps had, in fact, conducted a survey within the six-monthpre-dredgewindowwhen it issuedthe solicitation, namely, a hydrographic survey ofthe harbor conducted on 12, 14 and 15 March 2012 (R4, tabs 4, 30). The Corps conductedthis survey in response to a request from the Massachusetts PortAuthority (Massport), which was aware ofthe incomplete rock removal in the federally-maintained portion ofthe harbor channel and was concernedthat it might affect a tall ships/War of 1812 bicentennial eventplannedthat
summer. Because the Corps conductedthis survey in response to the request by Massport, it did not atthattime calculate volumes ofmaterial that could be dredged. (R4, tabs 3-5, 35 (Preston decl.)

### ii 5, supp. Preston decl. 

### ii 13)

7. Accordingto a declaration submittedby Jeffrey W. Preston, a Corps official who atthe timewas engineeringtechnical/crew chief, afterthe Corps performedthe March 2012 survey, a team ofCorps employees "editedthe data overthe next month and
a half' (Preston decl. 

### ii 3). The Corps had used new equipmentonthis latest survey so Mr. Preston decided to perform whathereferred to in his initial declaration as a "cross check"with the results ofthe March 2011 survey by examiningthe highestpinnacle of the rock outcrops. He found the results ofthe two surveys to be similar. (Id.) In his supplemental declaration, Mr. Preston clarifiedthat his comparison ofthe two surveys
2was a "quick map check"that "is in no way a reflection on the quantity ofvolume available since it is only checking the individual peaks

...on the harborbottom" (supp. Preston decl. 

### if 14).

8. While the record is clearup to this point, the question of"what did the Corps know and when did it know it?" becomes less clear as we draw closerto the 16 July 2012 award date ofthe contract. In a motion for summaryjudgment filed in May 2017, the government stated that in June 2012 it used the March 2012 survey as the pre-dredge survey to calculate that there were only about 430 cubic yards ofpayable quantity (gov't MSJ br. at 4, 

### if 17 (citing R4, tabs 9-10), at 8, 

### if 31 (citing R4, tab 20)). None ofthe documents citedby the Corps, however, actually showthat it performedthis calculation in June 2012.

9. In the government's most recent brief(Rule 11 brief), the governmentnow states that it did not performthe revised calculation ofpayable quantity until 8 August 2012 (that is, 23 days after contract award) (gov'tRl 1br. at 10 (citing R4, tabs 30, 38)). In support ofthis revised assertion, the Corps cites testimony from Mr. Preston who relies onRule 4, tab 30 (supp. Preston decl. 

### if 23). However, tab 30 is a summary table that does not specify the date on which the Corps calculatedthe reduced quantity estimate.

10. Accordingto Mr. Preston, surveys are conducted with modern depth sensors (called multibeam sonar) which enable the surveyorto obtainraw depths, which are recorded. Forthis datato become useful, erroneous depths causedby fish orbubbles from a boat engine mustberemoved. The edited data can bebroken down by laying a grid overthe work area, which for the 2011 surveywas an area ofone foot by one foot. The Corps normally saves two types ofelectronic files as a result ofthis process: one provides the minimum depth in each grid square, while the otherprovides the average depth. (Supp. Preston decl. 

### iii! 4-9)

11. To calculate volumes ofmaterial to be dredged, the Corps uses software called MicroStation to create a template representing the desired dredge depth. In the
case ofthe March 2011 survey, it then comparedthe l' x 1' minimum depth grid squares to the template. The software determines how many cubic yards ofmaterial must be dredgedto bring the area downto the desired depth. (Supp. Preston decl. 

### iii! 10-11)

12. Although it is not entirely clear, we find withrespect to the 2012 survey that the Corps performedthe survey, edited the survey data and createdthe minimum depth grid squares in the March-April 2012 time period and that it calculatedthe estimated volume ofmaterial to be dredged on 8 August 2012 (compare Preston decl. 

### if 3 ("Afterthe survey was completed and data was collected, my team edited the data overthe next month and a half') with supp. Preston decl. 

### if 13 ("No volumes were calculated immediately afterthe survey"), 

### if 23 ("On August 8, 2012, available volume for the 2012 governmentpre-dredge survey was calculatedby the Corps.")). Thus, although Mr. Preston's declaration contradicts the Corps' earlierposition that it performed the
3calculations in June 2012 and is not supported by any contemporaneous evidence, this is the only evidence we have. We accepthis sworn testimony that the Corps calculatedthe quantities on 8 August 2012.

13. The Corps did not disclose in the solicitation that it hadperformed an additional survey in March 2012 from which it had collected minimum depths that could be used to calculate payable quantity. Burnham and/or its subcontractors were capable of calculating volumes ofmaterial using the survey data. (Burnham decl.**~** 3; R4, tab 37)

14. Burnham submitted the low bid on 28 June 2012. The parties thereafter entered into a contract with an award date of 16 July 2012. (R4, tab 12 at 2, tab 11)

15. The contract incorporatedvarious Federal Acquisition Regulation (FAR) clauses, including FAR 52.211-18,

# vARIATION IN ESTIMATED QUANTITY (APR 1984) (R4, tab 12 at 5) whichprovided in part as follows:
Ifthe quantity ofa unit-priced item in this contract is an estimated quantity and the actual quantity ofthe unit-priced item varies more than 15 percent above or belowthe estimated quantity, an equitable adjustment in the contractprice shall be made upon demand ofeither party. The equitable adjustment shall bebasedupon any increase ordecrease in costs due solely to the variation above 115 percent orbelow 85 percent ofthe estimated quantity.

In addition, the contract contained EFARS 52.211-5001,

# vARIATIONS IN ESTIMATED QUANTITIES-SUBDIVIDED ITEMS (MAR 1995) (id. at 17).

16. Burnhamperformedthe contract work from August to October 2012 (R4, tab 24). The Corps conducted a post-dredge survey on 4 and 11 October 2012 (R4, tab 30).

17. The post-dredge survey showed that 15.9 cubic yards ofpayable material remained atthe site. Ifthe Corps had used its March 2011 estimate, as adjusted down slightly to 522 cubic yards ofmaterial, Burnham would have been entitledto payment for 506.1 cubic yards. However, the Corps used the March 2012 survey showing 429.9 cubic yards to calculate that Burnhamwas entitled to payment for 414 cubic yards. (R4, tab 30; 2nd supp. BurnhafI!. decl.**~~** 6-7)

18. Dredging contracts oftenrequire removal oftens ofthousands ofcubic yards ofmaterial, and sometimes millions (2nd supp. Burnham decl. 

### iJ 6; R4, tab 14 at 12). Becausethis project contained a small amount ofpayable material but was labor intensive (requiring Burnham, among otherthings, to reduce the rockto rubble with high explosives), Burnhambidthe project at $3,375/cubic yard (CY) for the first
4150 CYofpayable quantity (CLIN 0002AA) and $3,000/CY for material over 150 CY (CLIN 0002AB) (2nd supp. Burnham decl.**~~** 5-6; R4, tab 13 at 4). While Burnham ultimately had to remove more than 1,500 cubic yards ofmaterial, mostly submerged rock, to complete the contract, this pricing structure left it vulnerable to a significant reduction in the quantity ofpayable material (2nd supp. Burnham decl.**~** 6).

19. Burnham submitted a certified claim dated 25 November 2014 to the contracting officer (R4, tab 32). Burnham contended, among otherthings, that the Corps had misrepresentedthe payable quantity (id. at 1).

20. The contracting officerissued a final decision denying the claim on 9June 2016 (R4, tab 2). She contendedthatthe differences between the 2011and2012 surveys "were likely due to differing amounts in soft material present in the areas where work
was to be conducted" because the "volume ofrock would not have changed" (id. at 12).

21. Despite this statement in the contracting officer's final decision, the contract drawings provided that "forpaymentpurposes it is assumed all material removed within limits ofdredging is rock" (R4, tab 6 at 172-75 n.1). Burnham's experience confirmed this. Itfound little to no other material such as sand or silt in the dredging area (supp. Burnham decl.**~** 5; 2ndsupp. Burnham decl.**~** 6; see also supp. Preston decl.**~** 6 (an earlier contractor stated that it could not dig in the dredging areas because they were "hard rock or ledge")). Shipping Traffic

22. The solicitation/contractcontained the following clause warning bidders that there are otherboats in Boston Harborthat would need some accommodation:

1.3 PROJECT/SITE CONDITIONS

1.3.1 Physical Data

e. Channel Traffic: Boston Harbor and the adjacent
areas to be dredged are mainly used by deep draft commercial vessels, fishing vessels, and numerous small recreation and commercial craft, which may cause some interference with contract operations. Certainrestrictions
on vessel movement are in place when liquid natural gas (LNG) tankers traverse the harbor. The Contractorwill be required to conduct the work in such a manner as to obstruct navigation as little as possible, and in the event the Contractor's plant so obstructs the channel as to make
5 

# Idifficult or endanger the passage ofany vessels, the plant shall be promptly moved on the approach ofany vessel to such an extent as may be necessary to afford a practicable passage. Moving ofdredging plant may also be based on the determination ofthe docking pilot if vessel traffic requires it.
(R4, tab 6 at 43-44)

23. In Burnham's 25 November 2014 certified claim, it sought $79,233.35 for an alleged interference in its work by commercial ships and pleasure craft. Itlater lowered this amount to $70,144.95. (R4, tab 36 at 3) While Burnham appears to complain generally about disruptions to its work throughoutthe contract term caused by these commercial ships and pleasure craft, as well as restrictions imposed by the Coast Guard,
we will confine our discussion to the days for which Burnham seeks damages (see R4, tab 32 at 15, tab 36 at 3).

24. Burnham contends it suffered one-halfday ofdelay on each ofthe following dates (R4, tab 36 at 3). On 23 August 2012, Burnham's daily report states that it waited from 7:30 a.m. to 1:00 p.m. for commercial ship traffic to clear out ofthe work area. Onthe following day, it was unable to work after 11 :45 a.m. due to commercial shipping (R4, tab 24 at 9, 11). On 25 and 30 August2012, Burnham's daily reports states that there are "[o]ngoing issues with pleasure craft approaching dredge at high speeds and causingwakes" (id. at 13, 22). On 7 September 2012, Burnham's daily report does not identify any delays causedby otherboats; instead, it states that Burnham canceled a blast due to trouble with its own electronics (id. at 32).

25. From 1-3 September 2012, Burnham contends that it was unable to work due to increased pleasureboattraffic in the harbor1(R4, tab 24 at 25-27). But Burnham'spre-construction schedule shows that it did notplan to work on 2 and 3 September

- the Sunday and Monday ofLabor Day weekend (R4, tab 17 at 5).

26. Burnham contends that its workwas often impactedby curious recreational boaters who sped close to its barge, creating a wake thatrocked the barge (app. br. at 7). Mr. Burnhamtestifiedthat the harborwas "oftenbedlam on Sundays" because ofthese boats (supp. Burnham decl. 

### ,-r 8).

27. Burnham's daily reports for 14-16 and 20 September 2012 state that it did notperform any work on those dates "dueto ship traffic," with the 16 September report also mentioning work restrictions (R4, tab 24 at 44-46, 50).

1Burnham eliminated its damage claim for these three dates in its revised submission to the contracting officer (R4, tab 36 at 3) but they reappear in its briefingto the Board. 628. Burnhamhas provided some evidence withrespect to the level of commercial shipping in the harbor. Citing an email from Andy Hammond, Executive Director ofthe Boston HarborPilotAssociation dated 22 August 2012, Burnham identifies three commercial ships thatwere scheduledto be in the harbor on 23 August and seven on 24 August (see R4, tab 32-41). 

### It also cites one ofits own emails on 23 August to state that the US.S. Constitution was scheduled to be in the harbor on 24 August (R4, tab 32-42). An email from Mr. Hammond identifies five ships scheduledto be in the harbor on 30 August (R4, tab 32-47).

29. Burnham has also submitted a 5 September 2012 email from a Massport official that attached the cruise ship schedule for the period 31 August to 1November 2012 (R4, tab 32-49). Forthe dates on which Burnham has claimed it suffered a delay, the email reflects one cruise ship scheduledto be in the harbor on 1, 7, 15, 16, and 20 September, and two cruise ships on 14 September 2012 (id. at 3).

30. Neitherparty has provided us with any evidence that indicates how the level of recreational boaters, commercial shipping, cruise ship traffic orCoast Guard restrictions compares to historic levels in the harbor (although the Corps refers us to the Massport website, which states that the Conley Terminal, the full service containerterminal, handles about 1.5 million metric tons ofcargo peryear). Accordingly, we find thatBurnhamhas notproven thattraffic in the harbor was above average while it performed its contract work, nor has it provedthatthe Coast Guard caused any quantifiable delay.

DECISION DredgingSurvey

In Burnham's certified claim, it soughtto reform the contractby repricing CLIN 0002 based on the quantities from the March 2012 survey. Thus, its price for CLIN 0002AA would increase from $3,375 to $4,135 and CLIN 0002AB would increase from $3,000 to $3,676. Usingthese numbers, Burnham would be entitled to an equitable adjustment of$334,464.2 (R4, tab 32 at 14) However, in its briefingtothe Board, Burnham states that it seeks to eitherreprice CLIN 0002 based on the March 2012 survey, orto bepaid for 506 cubic yards at its bidprices (app. RI 1hr. at 3; 2nd supp. Burnham decl.**~** 7).

The government is not required to be clairvoyantwhen it issues an estimate for biddingpurposes, but a contractor can recover ifit shows thatthe estimate was

2 $4,135 x 150 cy = $620,250 $3,676 x 264 cy = $970,464 $620,250 + $970,464 = $1,590,714 $1,590,714

- $1,256,250 (the amount alreadypaid)= $334,464
7inadequately ornegligently prepared, not in good faith, or grossly orunreasonably inadequate at the time the estimate was made. ClearwaterForestIndustries, Inc. v. UnitedStates, 650 F.2d 386, 395 (Ct. Cl. 1981). Thus, to the extent that a government estimate is inadequately or negligently prepared, its inclusion without correction in a solicitation or contract constitutes a misrepresentation that, whether deliberate or not, amounts to abreach ofcontract. Rumsfeldv. AppliedCos., Inc., 325 F.3d 1328, 1335 (Fed. Cir. 2003) (citing Womackv. UnitedStates, 389 F.2d 793, 800 (Ct. Cl. 1968)). Even ifthe government's estimate is not drastically inaccurate, ifit was prepared negligently or in bad faith the government is liable for breach. American Gen 'l Trading & Contracting, WLL, ASBCA No. 56758, 12-1BCAi\34,905 at 171,365.

In Womack, the Court ofClaims observed that an inadvertent misrepresentation stemming from negligence is fully as damaging as a deliberate one to the party who relies upon it. Womack, 389 F.2d at 800. A bidder is entitled to rely on an estimate as representing honest and informed conclusions. Id. (citingLynch Motors, Inc. v. United States, 292 F.2d 907, 909-10 (Ct. Cl. 1961)). The inclusion ofa variance in quantity provision in the contract does not dilute the standardto which the government is held. Such clauses afford flexibility to accommodate actual deviations that are not reasonably predictable at the time the estimate is made and during the time that it remains subjectto reliance by the bidder, embracing variations that are attributable to facts that are not among those reasonably available to the estimator. The variance in quantity clause does not excuse the estimator from using and disclosing relevant information that is reasonably available to him, nor does it require the contractorto bearthe first 15% ofthe burden of the government's negligence. Id. at 801.

Based on the government'sposition in its May 2017 summaryjudgmentbriefthat it calculated the 430 cubic yards estimate in June 2012, the month priorto contract award

- we would have no problem in concluding that the Corps was negligent in failing to provide the revised estimate to Burnham. The government's defense in that earlier briefseemed to focus onthe fact that it did not have the lowered estimate when it issued the solicitation in May 2012 (gov'tMSJ br. at 15). However, this would not have absolved the government ofliability. The Court ofAppeals for the Federal Circuit has held that ifthe government obtains new information between the time ofsolicitation and award it will be held liable for a misrepresentation ifit does not disclose that information to the contractor. AppliedCos., 325 F.3d at 1330-31, 1335.

The revised facts conveyedthrough the government's Rule 11 briefand the supplemental Preston declaration present a closer call because the governmenthad not yet calculated the lowered quantity estimate at the time ofaward. But after carefully considering the facts and the legal test articulated in Womack, we hold that the government is liable for a misrepresentation. Under Womack, the government is required to base its estimate on all relevant information that is reasonably available to it. Womack, 389 F.2d at 801. The government failed to do that because it did not base its estimate on the most current survey from March 2012. Using a survey that was more than a year old
8ratherthan the March 2012 survey was also inconsistent with the Corps' practice of performing a pre-dredge survey within six months ofthe start ofdredging (finding 5). While Mr. Preston performed a "quick map check" on the March 2012 survey, his motivation was to checkthe accuracy ofthe new equipment, not to verify the quantity estimate to be provided in the solicitation (finding 7).

We recognize that precedentprovides that the government is not required to take extraordinary measures to ensure an accurate estimate. Medart, Inc. v. Austin, 967 F.2d 579 (Fed. Cir. 1992). In Medart, the Federal Circuit considered a claim on a contract to supply cabinets to federal agencies in locations around the world. Id. at 580. The solicitation included estimates based on the number ofcabinets ordered in each ofthree delivery zones. Id. During the course ofperformance, the government's estimate proved to be much higherthan the actual need and the contractor contended that it experienced devastating losses. Id. Citing Womack, the Federal Circuit rejected the contractor's argument that the agency should have polled end users because the military alone used the cabinets at hundreds ofsites around the world and there was no central site to obtain accurate predictions oforders. The Court ofAppeals held that the government used information that was reasonably available; it need not search for or create additional information. Id. at 582.

In Womack the Court ofClaims reached a different conclusion in a case stemming from a contract for the preparation ofplats and a historical index for each township in Utah. The work involved transposing information contained in a Control Document Index onto title and use plats. The specifications estimatedthat this index would consist of65,000 index cards that were being createdby another contractor, York Tabulating Service (York). As it turned out, the estimate was quite low and York created 105,000 cards, resulting in additional work. Womack, 389 F.2d at 795-96, 798. The Court of Claims enteredjudgment for the contractor, holding that there was additional relevant information that was "reasonably available" to the agency in making its estimate. Id. at 799. First, the courtheld that the agency could have analyzed its own indexes offilm rolls containing microfilm ofmillions oftitle and usage source documents, to determine a minimum number ofindex cards for Utah. Id. at 799. Second, at a time shortly before contract award when York had created only about 64,000 index cards and reported that it
was almost finished, the court held that the agency could have examined York's production records and asked York more probing questions as to the number ofindex cards yet to be produced. Id at 800.

We hold thatthe facts in this appeal are more similarto Womack than Medart. As we have found, by the time the Corps issued the solicitation it had already done the vast majority ofwork requiredto estimate payable quantities using the 2012 survey. Mr. Preston and his team spent 3 days in Boston Harbor in March 2012 performing the survey; they then spent the next 1.5 months analyzing the data (findings 6-7). The only task remaining at the time ofsolicitation was to run the product ofthis effort through the MicroStation softwareprogram (finding 11). While this took an additional
9day ofwork, we find it to be within areasonable level ofeffortbecause it was far easierthan the review and analysis ofagency and contractorrecords (using 1950s technology) thatthe Court ofClaims found to have been warranted in Womack and is not in any way comparable to the worldwide polling effortthatthe Federal Circuit rejected in Medart.

Atthe time ofthe solicitation the Corps knew that volumes ofdredged materials
can change overtime. Forthis reason, the Corps generally completes a survey within six months ofthe start ofdredging (finding 5). Despite this, and despite havingperformed almost all ofthe workrequiredto produce an estimateusing the March 2012 survey, the Corps decided to use a survey that was more than a year old as the basis for the estimate in the solicitation. The Corps also neglected to inform bidders ofthe existence ofthe 2012 survey, which prevented them from performing their own analysis. The Variation in Quantity clause is only intended to protect the government against variations in quantity that are not reasonably predictable at the time ofthe estimate. Womack, 389 F.2d at 801. Because a variation in the payable quantity was entirely predictable, and because the variation in the quantity clause may not properly be used to excuse the estimator from using and disclosing relevant information that is reasonably available to him (id.), we hold that, Burnhamhas established liability and that its damages are not capped by the variation in estimated quantity clause. Shipping Traffic

We reject Burnham's shippingtraffic claimbecause it has not proven that boat traffic was above normal orbeyond that identified in the contract. As to the former point, Burnhamhas notproduced any evidence that shows how commercial shipping in the harbor during contractwork compared with historical use. With respect to the limited information Burnham has provided during the contractterm, the three commercial ships that Burnham identified on 23 August 2012, for example, do not strike us as clearly beyond what could have been reasonably expected. Nor are we particularly surprised that there was heavy recreational boattraffic on Labor Day weekend, or on other days in the late summer/early fall. Burnham largely appears to be complaining about delays caused by thirdparties (that is, the commercial ships and recreational craft) butprecedent does not allow a contractorto recover from the government for delays causedby thirdparties. See ContrackInternational, Inc., ASBCA No. 59917, 16-1BCA-,r36,532 at 177,954-55.

The Channel Traffic clause in the contract specifically alerted Burnham to the risk ofdelays causedby other ships (finding 22). This clause specifically warned Burnham that: 1) deep draft commercial vessels, fishing vessels, and numerous small recreation and commercial craftmay cause some interference with contract operations; 2) restrictions on vessel movement are in place when LNG tankers traverse the harbor; 3) Burnham wouldbe required to conductwork in such a manner as to obstruct navigation as little as possible; and 4) in the event its plant obstructedthe channel so as 

### 10to make it difficult or endangerthe passage ofany vessels, Burnham would be required to move its plant. Thus, the contract provided Burnham with ample warning ofthe challenges it would face. Put another way, Burnhamhas not identified any language in the contract in which the Corps warranted that Burnham would be free of insouciant recreational boaters speeding too close to its dredge or that its operations would take priority over routine commercial and cruise ship operations.

Burnham reads the Channel Traffic clause much differently, contending in its briefthatthe governmentwarranted that the work site would be available except for times when LNG tankers were transiting the harbor (app. br. at 14). We disagree. While the clause does speak ofrestrictions on Burnham moving its vessel when LNG tankers are traversing the harbor, this does not in any way limit otherwarnings in the clause, namely, that multiple types ofships may interfere with Burnham's operations, that it would have to avoid obstructing navigation, and that it would be required to
move its barge when it obstructed traffic. Burnham'sreading would essentially read these provisions out ofthe contract, but we are required to read the contract in such a way as to give meaning to all ofits terms. 

### Bell/Heery, JV v. UnitedStates, 739 F.3d 1324, 1331 (Fed. Cir. 2014).

Burnham cites the Federal Circuit's opinion in 

### Olympus Corporation v. United States, 98 F.3d 1314 (Fed. Cir. 1996), in support ofa contention that government interference with work site access may constitute a breach ofthe government's duty to cooperate (app. br. at 14). Burnham's citation to 

### Olympus is incomplete. The full sentence we believe it is referring to reads:

While interference by the government with a contractor's
access to the work site may constitute a breach ofthe government's duty to cooperate, the government is not responsible for third-party actions such as labor strikes that delay a contractor's performance, absent a specific contractual provision. 

### Olympus, 98 F.3d at 1318. The Federal Circuitheld thatthe government was not liable to the contractor for**d~lays** caused by a strike to another contractor. Id. This is consistent with ourholding above that the government is not responsible for third-party delays. Accordingly, we deny Burnham's appeal with respect to shipping traffic delays.

11CONCLUSION

We sustain the appeal with respect to the claim thatthe government misrepresentedthe quantities ofpayable materials, otherwise we deny the appeal. The appeal is remanded to the parties for negotiation ofquantum.
Dated: 13 December 2017

I concur

RICHARD SHACKLEFORD Administrative Judge Acting Chairman Armed Services Board ofContractAppeals

# ,~~rno**eJ** CHAEL N. O'CONNELL Administrative Judge Armed Services Board ofContract Appeals

I concur

OWENC. WILSON Administrative Judge Vice Chairman Armed Services Board ofContract Appeals

I certify that the foregoing is a true copy ofthe Opinion and Decision ofthe Armed Services Board ofContractAppeals in ASBCA No. 60780, Appeal of Burnham Associates, Inc., rendered in conformance with the Board's Charter.

Dated:

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