ARMED SERVICES BOARD OF CONTRACTAPPEALS

Appeals of

-- ) ) LRV Environmental, Inc. ) ) Under Contract No. DACWl7-02-C-0028 )

APPEARANCE FORTHE APPELLANT:

APPEARANCES FORTHE GOVERNMENT: ASBCA Nos. 58727, 58728

JeffH. Eckland, Esq.

Eckland & Blando, LLP Minneapolis, MN

Thomas H. Gourlay, Jr., Esq.

Engineer ChiefTrial Attorney Carolyn J. Fox, Esq.

Assistant District Counsel U.S. Army EngineerDistrict,

Jacksonville

OPINION BYADMINISTRATIVE JUDGE HARTMAN ON THE GOVERNMENT'S MOTION TO DISMISS FORLACK OF JURISDICTION AND THE PARTIES' CROSS-MOTIONS FOR SUMMARY JUDGMENT

The government moves to dismiss these appeals for lack of jurisdiction on the grounds that they are barred by the six-year statute oflimitations set forth in the Contract Disputes Act, 41 U.S.C. 

### § 7103(a)(4)(A), and the requirement an appeal from a contracting officer's (CO's) final decision to this Board be made within 90 days ofthe receipt ofthe CO's decision. Appellant asserts it submitted its claims within six years of accrual and thus is notbarred from pursuingthem, and thatthe earlier decision ofthe CO

was not final because it was reconsidered by the CO and thus notrequired to be appealed within 90 days ofappellant's receipt ofthe earlier decision. The government alternatively moves for summaryjudgment on the ground the parties' contractprovides that contract line item numbers (CLINs) with unit pricing will be paidbased upon actual quantities. Appellant cross-moves for summaryjudgment arguingthe parties' "fixed-price" contractprovides for payment ofthe unitprice for the estimated quantities when the actual quantity is within 15 percent ofthe estimated quantity.

STATEMENT OF FACTS FORPURPOSES OF THEMOTIONS

In September of2002, the Jacksonville District ofthe United States Army Corps ofEngineers (Corps) awarded a contract, No. DACWl7-02-C-0028, in an amountexceeding $1.5 million to appellant LRVEnvironmental, Inc. (LRV) to perform work at San Juan Harbor, LaEsperanza Peninsula, Catafio, Puerto Rico, described as follows:

The projectmodifications will include the dredging ofa flow channel through the peninsula and the removal, by dredging, ofthe tip ofthe peninsula. The required dredging depth will be -3 feet N.G.V.D and the total quantity ofmaterial to be dredged will be approximately 51,000 cubic yards. All dredged material will be placed in a cove located along the interior shoreline ofthe peninsula. The required final elevation ofthe material placed in the cove will bebetween 0.0 feet N.G.V.D. and+1.0 feet N.G.V.D. with a 0.5 foot allowable tolerance belowthe required elevation. Also required will be the installation ofapproximately 500 linear feet.

..ofsteel sheetpile to stabilize the shoreline ofthe peninsula.

(R4, tab 4 at 39-41, 474) The contract divided work to beperformed into six CLINs, three ofwhich (mobilization and demobilization, endangered species monitoring, and turbidity monitoring) were "LUMP SUM PAYMENT ITEMS" and three ofwhich (clearing and grubbing (CLIN 2), excavation and placement (CLIN 3), and sheet pile (CLIN 6)) were "UNIT PRICE PAYMENT ITEMS" (UPPI) (R4, tab 4 at 390-93).

With respect to CLIN 3, excavation and placement, LRV offered a firm-fixed unit price basedupon an "ESTIMATED QUANTITY" of51,000 cubic yards (R4, tab 4 at 216). Pursuant to contract§ 01270,
,, 1.2.1.1, 1.2.1.2, and 1.2.1.3, LRV was to be paid its firm-fixed unit price for CLIN 3 for actual quantities required to complete that work. The contract explained that "monthlypartial payments will bebased on approximate quantities determined by soundings or sweepings performedby the Contractorbehindthe dredge." (R4, tab 4 at 391-92) Itfurther explained:

The total amount ofmaterial removed, and to be paid for under the contract, will be measuredby the cubic yard in place and be determinedby the average end area method. The volume computed shall be between the bottom surface shown by soundings taken within 3 weeks before dredging and the bottom surface shown by the soundings taken within 3 weeks after the work specified in each acceptance section indicated

on the drawings has been completed. [LRV] shall give 3 weeks advance notice, in writing, to the Contracting Officer's Representative ofthe need for a pre-dredging

2survey or after-dredging survey for final acceptance for each acceptance section.

(Id.) Contract§ 02325, "DREDGING,"

### 'if'il 3.4.1, 3.4.2, 3.4.3, reiterated several times that "[t]he material actually removed from the designated areas to be dredged" will "be estimated and paid for in accordance with the provisions contained in

...Section 01270" (R4, tab 4 at 526, 534-35).

With respect to CLIN 6, Steel SheetPiling, LRV offered a firm-fixed unitprice based upon an "ESTIMATED QUANTITY" of24,200 square feet (R4, tab 4 at 216). Pursuant to contract§ 01270, 

### 'if'il 1.2.3.1, 1.2.3.2, and 1.2.3.3, LRVwas to bepaid its firm-fixed unitprice for CLIN 6 for actual quantities required to complete thatwork, i.e., "the number ofsquare feet ofinstalled and painted sheetpile used in the accepted work" (R4, tab 4 at 393).

The parties' contract containedvarious standard clauses set forth in the Federal Acquisition Regulation (FAR), including FAR 52.211-18,

## vARIATION INESTIMATED QUANTITY (APR 1984); FAR52.232-5, PAYMENTS UNDERFIXED-PRICE CONSTRUCTION CONTRACTS (MAY 1997);FAR 52.236-16, QUANTITY SURVEYS (APR 1984), and FAR 52.243-4, CHANGES (AUG 1987). The first ofthese clauses, Variation in Estimated Quantity (VEQ), FAR 52.211-18, states in relevant part:

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 orbelowthe estimated quantity, an equitable adjustment in the contract price shall bemade upon demand ofeitherparty. The equitable adjustment shall be based upon any increase or decrease in costs due solely to the variation above 115 percent orbelow 85 percent ofthe estimated quantity.

(R4, tab 4 at 57, 94, 113, 116) The second ofthese clauses, Payments under Fixed-Price Construction Contracts (Payment),FAR52.232-5, states in relevant part:

(a) Payment ofprice. The Government shall pay the Contractorthe contractprice as provided in this contract.

(b) Progress payments. The Government shall make progress payments monthly as the workproceeds, or at more frequent intervals as determined by the Contracting Officer [CO], on estimates ofwork accomplished which meets the standards of quality established under the contract, as approved by the [CO].

3(h) Final payment. The Government shall pay the amount due the Contractor underthis contract after-

(1) Completion and acceptance ofall work;

(2) Presentation ofa properly executedvoucher; and

(3) Presentation ofrelease ofall claims against the Government arising by virtue ofthis contract, otherthan claims, in stated amounts, that the Contractorhas specifically excepted from the operation ofthe release.

(R4, tab 4 at 94-96) The third ofthese clauses, Quantity Surveys, FAR52.236-16, states in relevant part:

(a) Quantity surveys shall be conducted, and the data derived from these surveys shall be used in computingthe quantities ofworkperformed and the actual construction completed and inplace.

(b) The Government shall conductthe original and final surveys and make the computations based on them. The Contractor shall conductthe surveys for any periods for whichprogress payments are requested and shall make the computations based on these surveys. All surveys conducted by the Contractor shall be conductedunder the direction ofa representative ofthe [CO], unless the [CO] waives this requirement in a specific instance.

(c) Promptly upon completing a survey, the Contractor shall furnish the originals ofall field notes and all otherrecords relating to the survey orto the layout ofthe workto the [CO], who shall use them as necessary to determine the amount of progresspayments. The Contractor shall retain copies ofall such material furnished to the [CO].

(R4, tab 4 at 113-14) The last ofthese clauses, FAR 52.243-4, Changes, states in relevantpart that the CO "may, at any time, without notice to the sureties, ifany, by written order designated or indicatedto be a change order, make changes in the work within the general scope ofthe contract" (R4, tab 4 at 116).

4

### By letter dated 25 July 2005, the Corps acknowledged completion by LRV of"all required contract works for subject project," and notified LRVthat, "since the variation

on all quantities covered

...fall within the 15 percent allowed" by the VEQ clause, no adjustment would be made in the unit prices bid by LRV. The Corps requested, however, that LRV execute aproposed bilateral contract modification: adjusting estimated quantity set forth in the contract for excavation and placement (51,000 cubic yards) to reflectthe underrun quantity actually performed, which it stated was 42,842.5 cubic yards; proportionately adjusting the total contract sums for two lump sum CLINs (turbidity and endangered species monitoring); and statingthat "[t]his modification

...will be used to determine final payment" underthe contract. (R4, tab 5 at 675-76, 680-81) LRV did not execute the proposedcontract modification (see 

### R4, tab 1at 2, tab 5 at 672, 680-81).

On 25 May 2007, LRV submitted to the CO a certified claim seeking $5,477,918.88 due to inappropriate total volume dredge determination, contract price adjustment, and the consequences thatresulted from such action (R4, tab 5 at 672-73). LRV stated that aprice adjustment was "implemented [on progress] PaymentEstimate Number#15" pursuant to the "draft modification" that "neverwas officially completed," the quantity for CLIN 3 (excavation) was "changedto 42,842.50 Cubic Yards" and the "prices" for two lump sum items, CLINs 4 and 5 (endangered species andturbidity monitoring), decreased proportionately, resulting in a contract price reduction of $100,769.11. LRV added one ofits subcontractors had claimedpayment for excavation of51,000 cubic yards and prevailed in a suit filed against its Payment and Performance Bond Company, it was now unable to obtainpayment and performance bonds, and as a direct result it had suffered economic and business development problems. (R4, tab 5 at 672-73)

In October 2007, the Corps' CO issued a final decision on LRV's claim (R4, tab 5 at 724-29). The CO concluded a credit of$81,575.00 against CLIN 3 based upon an actual quantity performed of42,842.5 cubic yards ''was appropriate and in accordance with the VEQ clause." The CO concluded further that the Corps was not responsible for expenses incurred by LRV relating to the Miller Act lawsuit ofits subcontractor and that other damages soughtby LRV were for acts sounding in tort, not contract, and thus beyond her authority to pay. The CO, however, did conclude that the Corps' proportionate reduction oflump sum amounts for turbidity and endangered species monitoring were in error because the VEQ clause "applies only to unit-priced items." The CO therefore acknowledged "the lump sum items should remain as bid" and LRV

was "entitled to payment for the full amount ofth[o]se line items." (R4, tab 5 at 727-28)

On 18 January 2008, LRV filed a notice ofappeal ofthe CO's decision with this Board (R4, tab 5 at 736-43). The appeal was docketed as ASBCA No. 56303 (id. 

### at 731-32). Less than one month after submitting its notice ofappeal, LRV advised it



### 5

### was withdrawing its notice (id. 

### at 744) and the Board dismissed its appeal as "withdrawn."

By contract Modification No. P00019 dated 13 February 2009, the Corps' CO "unilaterally" modified the parties' contract adjusting estimated quantities set forth for both steel sheet piling and for excavation and placementto reflect the underrun quantities it believed LRV actually performed, which were stated to be 23,683.89 square feet and 42,842.5 cubic yards, respectively. Based upon the unit prices bid by LRV, this resulted in a decrease in the total price ofCLINs 6 and 3 of$17,083.27 and $81,575.00, respectively, for a total reduction in contractprice of$98,658.27. (R4, tab 1at 2-3; compl. 

### ii 12, answer

### ii 12)

By email dated 2 July 2010, the Corps notified LRV that, in reviewing the contract for close out, it discovered a calculation error in the quantity ofexcavation actually performed for CLIN 3. It stated that a "quantity of4,638.5 [cubic yards] was inadvertently omitted in the total calculation." It added that, while the total amount dredged was statedpreviously (in the CO's decision and contract amendments) as "42,842.5," "[t]he total amount dredged should be 47,481 [cubic yards]." The Corps thus proposed the parties' execution ofa contract "modificationreflecting a variation in Estimated Quantities in the amount of4638.5 [cubic yards,] which increases the contract price by $46,385.00." (Gov't mot., attach. 1) LRV did not execute the Corp's proposed contract modification, which LRV asserts also contained a release ofclaims (compl. 

### ii 15; gov'tmot. at 3-4).

By letter dated 31March2012,LRV submitted to the CO a certified claim in the amount of$98,658.27. LRV alleged the Corps wrongfully applied the VEQ clause to CLIN 3 (excavation and placement) and CLIN 6 (steel sheetpiles) to reduce quantities set forth by $81,575.00 (8,157.50 cubic yards x $10.00) and by $17,083.27 (516 square feet x $33.10), respectively. According to LRV, the Corps deducted the difference between actual quantities performed 

### and the quantity amounts initially set forth in the contract from the latter amount to incorrectly set forth new quantity amounts to be used with unit pricing to determine payment, i.e., LRV should have beenpaid for the full contract amount initially set forth at the unit price ratherthan the unitprice multiplied by actual amounts 

### for CLINs 3 and 6. (R4, tab 3 at 1-3)

On 20 March 2013, the CO issued a final decision (received by LRV on that same day) granting LRV $46,385.00 (plus interest accrued) for 4,638.5 additional cubic yards ofexcavated material under CLIN 3. The CO denied the remainder ofthe claim. (R4, tab 1at 1-4) In addressing LRV's March 2012 claim, the CO made no mention ofLRV's May 2007 claim which was the subject ofa decision issued in October 2007 (R4, tab 1 ). On 17 June 2013, LRV timely soughtreview by this Board ofthe CO'sMarch 2013 final decision (R4, tab 2 at 9). Its appeals were docketed as ASBCA Nos. 58727 ($17,083.27 claim under CLIN 6) and 58728 ($81,575.00 claim under CLIN 3) (R4, tab 2 at 5).

6On 4 September 2013, the Corps paid LRV $40,880.77 for the 4,638.5 cubic yards previously omitted in quantity performed calculation for CLIN 3 (gov't mot., attach. 2). According to the Corps, the payment represents the unit price bid by LRV ($10.00) multipliedby 4,638.5, plus interest, minus an amount required to be withheld as a lien by the IRS.

DECISION

I. Motion to Dismiss

The Corps moves to dismiss LR V's appeals for lack of jurisdiction as barred by the six-year statute oflimitations set forth in the Contract Disputes Act, 41 U.S.C. 

### § 7103(a)(4)(A). Accordingto the Corps, LRVknew or should have known ofthe Corps' interpretation ofthe parties' contract that paymentwas to be based on "actual quantities" performed on 25 July 2005 whenthe Corps requested LRV execute a bilateral contract modification adjusting the quantity set forth in CLIN 3 for excavation and placementto reflect the quantity LRV "actuallyperformed," butLRV did not submit its claims until 31 March 2012, over six years and eight months later. (Gov'tmot. at 10-12)

LRV opposes the Corps' motion to dismiss on the ground that a claim does not

accrue (and the six-year statute oflimitations begin running) until (1) the date when all
events that fix liability were known or should have been known by a claimant and (2) some injury has occurred. According to LRV, the Corps' interpretation ofthe contract as requiring paymentbased on the CLIN quantity actually performed by LRV

was not actually appliedby the Corps (fixing liability and permitting assertion ofa claim) until a date within sixyears ofthe assertion ofits claims here, allowing pursuit ofits claims. (App. opp'n at 4-7)

On 10 December2014, after the parties had completedtheirbriefing ofthe Corps' motion to dismiss for lack of jurisdiction, the United States Court ofAppeals for the Federal Circuit issued its decision in 

### SikorskyAircraft Corp. v. UnitedStates, 773 F.3d 1313 (Fed. Cir. 2014), stating that, while its precedentpreviously characterized the six-year statute oflimitations in the CDA as "jurisdictional,"the Supreme Court's recent decision in 

### Sebelius v. AuburnRegionalMedical Center, 133 S. Ct. 817 (2013), effectivelyhad overruledthat precedent. The Federal Circuit held that, under the Supreme Court's bright-line test set forth in

### AuburnRegional, the six-year deadline set forth in the CDA was a claim processing rule coming within the general rule that filing deadlines are not "jurisdictional." 

### SikorskyAircraft, 773 F.3d at 1320-22. We, therefore, deny the Corps' motion to dismiss these appeals for "lack of jurisdiction"based upon the CDA's six-year filing deadline.

7The Corps also contends that, "[s]ince the alleged misapplication ofthe VEQ clause for adjustment ofCLIN 0003 was the subject ofa previous [CO's] Final Decision, LRV is precluded from raising it again in a second claim." Accordingto the Corps, a final CO's decisionwas issued on 11 October 2007 statingthatthe Corps "appropriately applied the VEQ clause," an appeal mustbe made from such a final decision to the Board within 90 days ofreceipt, the appeal made was withdrawnbyLRVwithin 30 days of filing, and LRVtherefore is barred from appealing the CO's 2007 decision six years later and obtaining "anotherbite at the apple." (Gov'tmot. at 12-13)

In its complaint in these appeals, LRV alleges it "maintainedthat the [Corps] remained liable for the full fixed price ofthe [parties'] Contract (i) for [CLIN] 0006 for Steel Piling

...including the $17,083.27 that the [Corps] purported to deduct from the fixed price ofthe Contract for said item by the [2009 unilateral contract] Modification," and (ii) for CLIN "0003 for Dredging Material...[including] the $81,575.00 that the [Corps] purported to deduct from the fixed price ofthe Contract for said item by [its 2009 unilateral contract] Modification" (compl. if 16). While the Corps contends LRV is attempting to obtain a second "bite at the apple," itwas the Corps' CO who in 2010 "reopened"the issue regarding calculation ofthe quantity ofCLIN 3 actually performed byLRV, finding the Corps previously had erred in calculatingthatquantity withrespect to the 2007 decision and 2009 unilateral contract amendment. The CO determined that a "quantity of4,638.5 [cubic yards] was inadvertently omitted in the total calculation" and, while the total amount dredged was statedpreviously (in the CO decision and contract amendments) as 42,842.5, "[t]hetotal amount dredged shouldbe 47,481 [cubic yards]." The CO, therefore, clearly did not view the earlier CO decision as conclusive and binding uponthe parties with respect to the Corps' making offinal paymentunderthe contract.

The Corps is correct that, to be considered timely, an appeal from a CO's final decision to this Boardmustbe made within 90 days ofreceipt ofthe CO's decision. 41 U.S.C. § 7104(a); 

### Sach Sinha & 

### Assocs., Inc., ASBCANo. 46916, 95-1 BCA if 27,499 at 137,042. "However, a CO's decision is not 'final' when such decision is reconsidered." 

### Zomord Co., ASBCA No. 59065, 14-1BCAif35,626 at 174,483. As stated in

### Johnson Controls, Inc., ASBCA No. 28340, 83-2 BCAif 16,915 at 84,170, "[w]herethe facts indicate that a [CO's] initial decision was nottruly final orthatthe decision is being reconsidered, the failure to appeal from the decision within the prescribedtimeperiodwill not defeat th[is] Board'sjurisdiction and the contractor's opportunity to beheard onthe merits." 

### AccordRoscoe-Ajax Constr. Co. v. UnitedStates, 458 F.2d 55, 63-64 (Ct. Cl. 1972); 

### Propulsion Controls Engineering, ASBCANo. 53307, 01-2 BCAif 31,494 at 155,508.

The CO's reconsideration ofthe 2007 CO decisionhere indicates the decision was nottruly final. 

### See Precision Piping, Inc. v. UnitedStates, 230 Ct. Cl. 741, 743 (1982); 

### Roscoe-Ajax Constr., 458 F.2d at 63; 

### accord CP of Bozeman, Inc., ASBCA No. 58533, 13 BCAif 35,452 at 173,854-55; 

### Sach Sinha, 95-1BCAif27,499 at 137,042. While

8there are no procedures set forth in the CDA for reconsideration ofa decision, it is a well establishedprinciple that an administrative agency may reconsider its own decisions. 

### UnitedStates v. 

### Sioux Tribe, 616 F.2d 485, 493 (Ct. Cl. 1980), 

### cert. denied, 446 U.S. 952; 

### accordBiddle v. 

### UnitedStates, 186 Ct. Cl. 87, 98-99 (1968). Administrative bodies who performjudicial or quasi-judicial functions are not infallible and are deemed to have the right to reconsider aprior decision absent existence ofa statute orregulation to the contrary. 

### Biddle, 186 Ct. Cl. at 98-99. Onthe unusual facts ofthis appeal, we hold that, in reconsidering (and correcting) the Corps' calculation ofCLIN 3 quantities performed by LRV, the CO demonstrated thatthe 2007 decision was not "final" and thatthe earlier determination is not a barto LRV obtaining review ofthe Corps' actions with respect to final payment under the contract in these appeals. We, therefore, also deny the Corps' motion to dismiss these appeals for lack of jurisdiction basedupon the CDA's 90-day requirement for submitting an appeal to this Board seeking review ofa "final" decision.

II. Cross-Motions for Summary Judgment

Board Rule 7(c) (formerly 5(b)) authorizes us to entertain and rule upon motions for summaryjudgment. 

### E.g., J W Creech, Inc., ASBCANos. 45317, 45454, 94-1 BCA**~** 26,459 at 131,661. The standards set forth in FED. R. CIV. P. 56 guide our resolution of such motions. 

### LearSiegler, Inc., ASBCA No. 30224, 86-3 BCA**~** 19,155 at 96,794; 

### AlliedRepairService, Inc., ASBCANo. 26619,**82-1BCA~15,785** at 78,162-63. Where both parties move for summaryjudgment, as here, we evaluate each motion upon its own merits. 

### McKay v. 

### UnitedStates, 199 F.3d 1376, 1380 (Fed. Cir. 1999); 

### Mingus Constructors, Inc. v. 

### UnitedStates, 812 F.2d 1387, 1390 (Fed. Cir. 1987). We will grant

a motion for summaryjudgmentonly when the pleadings, depositions, answers to interrogatories, and admissions on file, togetherwith affidavits, ifany, showthatthere is

no genuine issue as to any material fact and the movingparty is entitledto entry of judgment as a matter oflaw. The burden ofdemonstrating these elements is upon the party who seeks summaryjudgmentand the non-moving party is entitledto have all reasonable inferences drawn in its favor. 

### Celotex Corp. v. 

### Catrett, 477 U.S. 317, 322-24 (1986); 

### ElektaInstrument S.A. v. 

### 0.UR. ScientificInt'!, Inc., 214 F.3d 1302, 1306 (Fed. Cir. 2000); 

### Comptech Corp., ASBCA No. 55526, 08-2 BCA**~** 33,982 at 168,082.

In its cross-motion for partial summaryjudgment on liability, LRV contends the Corps incorrectly calculated the payment due it for performing contract work underthe terms ofthe parties' contract. According to LRV, under its "fixed-price" contract, it was to receive $510,000.00 ($10.00 per cubic yard x a quantity of51,000 cubic yards) for CLIN 3, excavation andplacement, and $801,020.00 ($33.10 per square foot x a quantity of24,200 square feet) for CLIN 6, steel sheet piling. Instead, the Corps calculated the payment owedto LRV as $474,810 ($10.00 a cubic yard x a quantity of47,481 cubic yards) for CLIN 3, excavation and placement, and $783,937 ($33.10 a square foot x a quantity of23,683.89 square feet) for CLIN 6, steel sheetpiling. LRV asserts: the quantities it actually performed for CLINs 3 and 6 varied by less than 15% from the

9quantities set forth in the contract; no adjustmentwas to be made underthe VEQ clause unless quantities varied by more than 15%; and the Corps' CO, therefore, acted incorrectly in reducing contract quantities set forth for the CLINs and in applying the VEQ clause with respect to final payment. (App. mot. at 7-18)

In its motion for summaryjudgment and oppositionto LRV's cross-motion, the Corps asserts: the parties' contract specified that it was based upon estimated quantities for CLINs 3 and 6; the CO adjusted the estimated quantities set forth pursuantto FAR 52.243-4, CHANGES (AUG 1987), and the contract's paymentprovisions (specifying payment for CLINs 3 and 6 was to be made for quantities actually performed) to reflect "actual quantities" LRVperformed since actual quantities were less than estimated; the CO did not apply the contract's VEQ clause to CLINs 3 and 6 because the difference between estimated and actual quantities was less than 15%; and, when one reads the
contract "as a whole," the CO acted correctly pursuantto contract terms because LRV is not entitled to payment underthe contract for units ofCLINs 3 and 6 notperformed. (Gov'tmot. at 16-19; gov'tresp. at 5-7)

The parties, therefore, construe the terms oftheir contract differently and the issue before us is the proper interpretation ofthe contractterms with respectto payment ofthe unit-priced CLINs. Theproper interpretation ofa contract is a "question oflaw," and amenable to resolution by motions for summaryjudgment. 

### Sevenson Environmental Servs., Inc. v. Shaw Environmental, Inc., 477 F.3d 1361, 1364 (Fed. Cir. 2007).

We interpret a contract in accordance with its express terms and begin with the plain language ofthat agreement. 

### E.g., C. Sanchez & 

### Son, Inc. v. UnitedStates, 6F.3d 1539, 1543 (Fed. Cir. 1993); 

### Gould, Inc. v. UnitedStates, 935 F.2d 1271, 1274 (Fed. Cir. 1991). Ifthe "provisions are clear and unambiguous, they must be given their plain and ordinary meaning." 

### E.g., Unitedlnt'lInvestigative Servs. v. UnitedStates, 109 F.3d 734, 737 (Fed. Cir. 1997);

### AlaskaLumber & 

### Pulp Co. v. Madigan, 2 F.3d 389, 392 (Fed. Cir. 1993).

LRV argues the "essential framework for final paymentunder the Contract is established in the [VEQ] clause," which "sets aside a 30 percentrange (from 85 percent ofthe estimated quantity to 115 percent ofthe estimated quantity, a/k/athe 'VEQ Buffer') for payment ofthe fixed contractprice." According to LRV, when actual quantities fall within the VEQ Buffer, orwhen a CLIN is not unit-priced (i.e., lump-sum payment item), "the VEQ Clause provides 

### no authority to adjust the fixed contractprice" and the CO is prohibited from making such an adjustment due to lack ofcontractual authority. (App. mot. at 7-8; app. reply hr. at 2-6)

Contrary to the assertion ofLRV, however, the plain language ofthe VEQ clause (which is quoted above) does not set forth the "framework" for payment ofCLINs under the parties' contract. The VEQ clause, by its plain terms, simply sets forth aprocedure

10for adjusting a contract'sprice with respect to unit-priced quantities differing from
contract quantity estimates by more than 15%. 

### See Foley Co. v. 

### UnitedStates, 11 F.3d 1032 (Fed. Cir. 1993); 

### Victory Constr. Co. v. 

### UnitedStates, 510 F.2d 1379 (Ct. Cl. 1975). Underthe VEQ clause, the parties are boundto the contract's unit prices within a specific range (here 85%to 115%) ofestimated quantities but, ifthe actual quantity varies significantly (more than 15%) from the estimated quantity, aparty may seek an equitable adjustment in the contractprice due solely to the variation in quantity above 115% orbelow 85% ofthe estimated quantity. FAR52.211-18; 

### see Foley, 11 F.3d at 1034; 

### Cosmo Constr. Co. v. 

### UnitedStates, 451F.2d602, 616-17 (Ct. Cl. 1971). As the Court ofClaims stated, the VEQ clause is the "vehicle for adjusting, with a minimum of haggling, the compensation received by contractors who are called upon in the course of performance to do, within limits, more or less work than could be estimated." 

### United Contractors v. 

### UnitedStates, 368 F.2d 585, 601 (Ct. Cl. 1966).

When actual quantities cannot be accurately forecast for workto be performed, unit pricing based on estimated quantities is used in construction contracts to evaluate bids, determine an initial contractprice, and provide an equitable method ofpricing actual quantities ofthe pay items. When such pricing is used in federal government contracts, a VEQ clause is included in the contract to provide for the pricing oflarge variations from estimated quantities. 

### See FAR 11.702, 36.207, 52.211-18.

Here, there is no dispute that actual quantities for unit-priced CLINs 3 and 6 differed from estimated quantities for the CLINs by 

### less than 15%. As a result, there is

no reason to reference the VEQ clause, which authorizes an equitable adjustment only if actual quantities exceed estimated quantities by 

### more than 15%, in orderto determine paymentto LRV for unit-priced CLINs under the parties' contract.

Section 01270 ofthe parties' contract ("Measurement and Payment") sets forth the framework for the payment ofunit-priced CLINs. Theplain language of

### if 1.2.1.2 of § 01270 expressly states with respect to CLIN 3 that "[t]he total amount ofmaterial removed, and to be paid for under the contract, will be measured by the cubic yard in place and be determinedby the average end area method." Further, the plain language of 

### if 1.2.3.2 of§ 01270 expressly states with respect to CLIN 6 that "(t]he amountpaid for will be the number ofsquare feet ofinstalled and painted sheetpile used in the accepted work." The plain meaning ofthese words is that LRV is to be paid for the actual "amount ofmaterial removed" under CLIN 3 and for actual "sheetpile used in accepted work" under CLIN 6. 

### See LockheedMartin IR Imaging Sys., Inc. v. 

### West, 108 F.3d 319, 322 (Fed. Cir. 1997) (words ofa contract are deemed to have their ordinary meaning). While LRV suggests actual quantities are to be used only with respect to progress payments made to it (app. mot. at 9-11, 16-18), it cites no contract language limiting the

use of

### actual CLIN quantities to "progress payments" made and mandating the use of initial 

### estimatedquantities when it comes time for determining final payment" to be made under the contract. Accordingly, LRV's construction ofthe contract as requiring

11unit-priced CLINs be paidby multiplying the unit price by the "estimated" (ratherthan actual) quantity ofthe CLINs is contrary to the express terms ofcontract§ 01270. It is well established that a contract is to be construed "as a whole" in a mannerwhich harmonizes all ofits provisions. 

### State of Arizona v. 

### UnitedStates, 575 F.2d 855, 863 (Ct. Cl. 1978); 

### LaidlawEnvironmentalServs. (GS), Inc., ASBCA No. 45365, 93-3 BCA 

### if 26,128 at 129,884. A construction which gives reasonable meaning to all parts ofan instrument is preferred to one leaving a portion ofthe instrument useless, inexplicable, insignificant, void, meaningless or superfluous. 

### Hof-Gar Mfg. Corp. v. 

### UnitedStates, 351 F.2d 972, 979 (Ct. Cl. 1965);

### A.R. Mack Constr. Co., ASBCA No. 49526, 97-1 BCA 

### if 28,742 at 143,464. LRV's construction ofthe parties' contract would require us to ignore the words ofcontract§ 01270 (measurement and payment) when it comes to final paymentunder that contract contrary to the rules ofcontract interpretation.

LRV further asserts that there is no contract provision (otherthan the VEQ clause) authorizing the CO to adjust the parties' contractto reflect a change in price based on "actual" quantities ofunit-priced CLINs, therebyprecluding a contract interpretation otherthan its own interpretation (app. mot. at 8, 11, 24; app. reply br. at 6-14). The parties' contract, however, includes FAR 52.243-4, Changes, which authorizes a CO to make a deductive change in the contractprice ifan aspect ofthe contract work set forth is deemed unnecessary and notrequired to be performed. 

### See, e.g., S.N. Nielsen Co. v. 

### UnitedStates, 141 Ct. Cl. 793, 795-95 (1958); 

### CTA, Inc., ASBCANo. 47062, 00-2 BCA 

### if 30,947 at 152,761-62.

Since the "actual" quantities ofunit-priced CLINs 3 and 6 required were less than the quantities "estimated"to be required for those CLINs, the Corps correctly made an appropriate downward adjustment ofthe quantities set forth in the contract schedule for those CLINs. Nothing in the parties' contract barredthe Corps' action here, which comports with the contract'spayment provisions read as a whole under established contract constructionprinciples.

Finally, LRV asserts that: the parties' contract is ambiguous withrespect to final payment; LRV's construction ofthe contract is "reasonable"; and therefore we must construe the contract against its drafter, the Corps (app. mot. at 19-26). A contract is considered ambiguous, however, only ifit is susceptibleto more than one reasonable interpretation. 

### E.g., Metric Constructors, Inc. v. 

### NASA, 169 F.3d 747, 751 (Fed. Cir. 1999). The contract here expresslyprovides in its schedule that quantities set forth for unit-priced CLINs are "estimated" and in § 01270 that "actual" quantities for unit-priced CLINs will be used to determine payment ofthose CLINs. LRV's interpretation ofthe parties' contract as requiring use of"estimated" quantities to determine payment of unit-priced CLINs requires disregard ofseveral paragraphs ofcontract§ 01270 and is not reasonable. 

### William F. Klingensmith, Inc. v. 

### UnitedStates, 505 F.2d 1257, 1262 (Ct. Cl. 1974) (interpretation which requires complete disregard ofentireparagraphs ofcontract not normally considered reasonable). We conclude the contract's paymentprovisions are

12susceptible to only one reasonable interpretation and thus do not constitute an ambiguity that must be construed against the Corps. 

### See, e.g., C. 

### Sanchez & 

### Son, 6 F.3d at 1544.

CONCLUSION

We deny the government's motion to dismiss the appeal for lack of jurisdiction. We also deny the appellant's motion for partial summaryjudgmentwith respect to liability. We grant the government's motion for summaryjudgment. The appeals are denied.

Dated: 14 July 2015

I concur 

# /4**~/** 

# /

# g~~ Administrative Judge Acting Chairman Armed Services Board ofContract Appeals TERRENCE S. HARTMAN Administrative Judge Armed Services Board ofContract Appeals

I concur

RICHARD SHACKLEFORD Administrative Judge Vice Chairman Armed Services Board ofContractAppeals

I certify that the foregoing is a true copy ofthe Opinion and Decision ofthe Armed Services Board ofContract Appeals in ASBCA Nos. 58727, 58728, Appeals of LRV Environmental, Inc., rendered in conformance withthe Board's Charter.

Dated:

13 JEFFREYD. GARDIN Recorder, Armed Services Board ofContractAppeals