               ARMED SERVICES BOARD OF CONTRACT APPEALS

Appeal of --                                 )
                                             )
GSC Construction, Inc.                       )        ASBCA No. 59046
                                             )
Under Contract No. W9126G-1 l-D-0061         )

APPEARANCE FOR THE APPELLANT:                         James S. Delsordo, Esq.
                                                       Argus Legal, LLC
                                                       Manassas, VA

APPEARANCES FOR THE GOVERNMENT:                       Thomas H. Gourlay, Jr., Esq.
                                                       Engineer Chief Trial Attorney
                                                      Ronald J. Goodeyon, Esq.
                                                      Jason R. Chester, Esq.
                                                       Engineer Trial Attorneys
                                                       U.S. Army Engineer District, Tulsa

             OPINION BY ADMINISTRATIVE JUDGE MCILMAIL
        ON THE GOVERNMENT'S MOTION FOR SUMMARY JUDGMENT

      The government contracted with appellant to construct a facility at Fort Sill,
Oklahoma. Appellant seeks additional compensation for certain utilities work. The
government moves for summary judgment. We deny the motion.

         STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION

       The following material facts are undisputed:

       1. On 15 September 2011, the Department of the Army (government)
awarded GSC Construction, Inc. (appellant) Task Order 0001 pursuant to Contract
No. W9126G-11-D-0061, an indefinite delivery, indefinite quantity contract (R4, tab 4(p)
at 3377).

       2. The task order amount was $11,951,460 (R4, tab 4(p) at 3377).

       3. The task order provides that appellant would "[c]omplete the Design and
Construction of the Central Issue Facility" (a warehouse) at Fort Sill, Oklahoma (R4,
tab 4(p) at 3374, 3380, 3383).
        4. The Statement of Work (SOW)§ 6.4.6.1.(c) provides:

               Water mains are shown on the drawings at Appendix J ....
               The Infrastructure Contractor will provide the potable
               water service between the main line to the 5-foot line of
               the building. Provide potable water service from the 5-foot
               line to the facility and within the building.... The
               Government will provide primary or main water pipe
               distribution ....

(R4, tab 4(p) at 3474)

        5. Section 6.4.6.1.(d) provides:

              The Infrastructure Contractor will design and construct the
              sanitary sewer service line between the sanitary sewer
              main to 5 feet from the building ....

(R4, tab 4(p) at 3474)

      6. Section 6.3.1.5. provides "infrastructure drawings are provided as 'for
information only' reference" (R4, tab 4(p) at 3472).

       7. Appendix EE, "Infrastructure Drawings," includes a drawing entitled
"OVERALL PROJECT CONSTRUCTION ACCESS" (R4, tab 4(p) at 4090, 4093). 1
Note 4, "WATER SUPPLY AND DISTRIBUTION," ofthe drawing states:

              MULTIPLE EXISTING WATER LINES WILL NEED
              TO BE REROUTED AS PART OF THIS PROJECT.
              THERE IS AN EXISTING 12" TRANSITE AND 24"
              CAST IRON WATER LINE RUNNING THRU THE
              FOOTPRINT OF THE NEW FACILITY. THE 12" LINE
              WILL BE REMOVED AND REROUTED AROUND
              THE SOUTH SIDE OF THE FACILITY. AN 8" LOOP
              WILL BE CONNECTED TO THIS LINE TO SERVE
              THE FACILITY WATER DEMANDS. THE EXISTING
              24" CAST IRON WATER LINE IS ABANDONED ....
              THE PORTION OF THIS LINE UNDER THE
              FOOTPRINT OF THE NEW FACILITY WILL BE
              REMOVED. AN EXISTING 24" WATER LINE UNDER

1
    Although the government points to pre-contract drawings, our drawing references
        are to the versions of those drawings that are appended to the contract.
                                           2
                THE NEW POV PARKING LOTS WILL ALSO NEED
                TO [BE] REMOVED.

(R4, tab 4(p) at 4093)

    8. The Overall Project Construction Access drawing, at note 5, "SANITARY
SEWER," states:

                THE NEW MAINS WILL BE 8" WITH THE NEW
                SERVICE LINES 6". THE NEW MAINS AND
                SERVICE LINES WILL HAVE PRE-CAST MANHOLES
                INSTALLED TO ALLOW FOR THE CONNECTION OF
                THE NEW FACILITY.

(R4, tab 4(p) at 4093)

      9. Appendix EE includes a drawing entitled "UTILITY PLAN" (R4, tab 4(p) at
4102). Note 2 of that drawing states that "CONTRACTOR WILL PROVIDE ANY
SANITARY SEWER ELEMENT REQUIRED OUTSIDE 5' OF THE BUILDING
INCLUDING A CLEANOUT OR MANHOLE AND CAP FOR FUTURE
CONNECTION" (id.).

     10. The Utility Plan drawing, at note 4, states that "CONTRACTOR WILL
PROVIDE THE PIV AND ROUTE FIRE WATERLINE (SEPARATE FROM THE
DOMESTIC SUPPLY). CONTRACTOR WILL TAKE FIRE WATER LINE AND
ROUTE WITHIN THE BUILDING." (R4, tab 4(p) at 4102)
                                                  '

       11. On 19 February 2013, Bilateral Modification No. A00002 was issued,
increasing the contract amount by $47,951, including for appellant to "provide and install
approximately 150 LF of 8" Fire Protection water line, extending from the water line to a
point 5 ft from the building" (R4, tab 4(s) at 4781). 2

         12. On 14 March 2013, appellant presented to the contracting officer (CO) a
certified claim for $826,355 for five categories of work that appellant categorized as
"Natural Gas, Water Mains, Sanitary Sewer, Electrical, and Communications" (R4, tab 2
at 1, 6). The water main component of the claim sought compensation for moving what
appellant called "the 24" primary or main water line" from the 5-foot line to the building
(R4, tab 2 at 4).



2
    Although the Rule 4 file copy of the modification indicates that appellant was
        required to sign the modification, the copy bears the signature of neither party.
                                             3
      13. On 18 June 2013, appellant revised its claim to add a request for a contract
modification for "a (112) day time extension with extended overhead in the amount of
$162,309.28" (R4, tab 3 at 2).

       14. In a 22 August 2013 final decision, the CO granted appellant's claim in part,
and denied the claim in part (R4, tab 1 at 13). The CO found merit for $442,119.63 for
"design and installation costs for the electrical .distribution line and the site
communication line" (id.). The CO denied appellant's claim for $546,544.65 for "[t]he
remaining site utilities (12" water line, relocate 24" water line, 10" fire loop, sanitary
sewer line, and site lighting)" (id.).

       15. Appellant received the CO's decision on 30 August 2013, and timely filed this
appeal on 26 November 2013.

                                         DECISION

         Introduction

        The government requests summary judgment in its favor on the entirety of the
appeal. Summary judgment shall be granted ifthe movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.
FED. R. CIV. P. 56(a); Mingus Constructors, Inc. v. United States, 812 F.2d 1387, 1390
(Fed. Cir. 1987). Appellant seeks compensation for alleged government-directed changes
to the contract work relating to four issues: (1) a sanitary sewer line; (2) a 12" water line;
(3) the relocation ofa 24" water line; and (4) a 10" fire loop (amended compl. iii! 14, 26;
R4, tab 1 at 13). 3 The Board denies the motion.

        Sanitary Sewer Line

        With respect to the sanitary sewer line claim, the government does not respond to
appellant's contention that the issue is "who was to provide the installation of the sanitary
sewer main" (app. resp. at 12), and we take that silence as agreement. Consequently, we
reject the government's reliance upon SOW§ 6.4.6.1.(d) (gov't mot. at 3, 10). That
section did not require appellant to install a sewer main; it required appellant to "design

3
    It is unclear what, if anything, happened to the "Natural Gas" category that appellant
        referenced in its claim to the CO (SOF if 12). The CO denied five categories of
        claims amounting to $546,544.65 (none of which appears to relate to natural
        gas (SOF if 14)), and appellant's amended complaint seeks only that amount
        (amended compl. iii! 14, 26). In any event, the government's motion does not
        expressly address any natural gas claim; therefore, nor do we. Moreover, in a
        letter to the Board dated 20 August 2014, appellant confirmed that the appeal
        does not include any claim for compensation regarding "site lighting."
                                             4
and construct the sanitary sewer service line between the sanitary sewer main to 5 feet
from the building" (SOF ~ 5) (emphasis added).
                   4



        The government also relies upon the Overall Project Construction Access drawing,
but that drawing, although it refers to "NEW [SEWER] MAINS," does not state that the
contractor would install those mains (SOF ~ 8). 5 Although the Utility Plan drawing notes
that the contractor "WILL PROVIDE ANY SANITARY SEWER ELEMENT
REQUIRED OUTSIDE 5' OF THE BUILDING INCLUDING A CLEANOUT OR
MANHOLE AND CAP FOR FUTURE CONNECTION" (SOF ~ 9), the government
does not demonstrate that a sewer main is a "SANITARY SEWER ELEMENT" within
the meaning of that note, particularly where the note specifies "A CLEANOUT OR
MANHOLE AND CAP FOR FUTURE CONNECTION" as examples. Consequently,
the government does not demonstrate that, with respect to the sanitary sewer line, there is
no genuine dispute as to any material fact and that it is entitled to judgment as a matter of
law. Accordingly, with respect to the sanitary sewer line claim, the motion is denied.

         Water Lines

        With respect to the water line claims (that is, the claims for the 12 11 water line, 24 11
water line, and 10 11 fire loop), the government does not demonstrate that there is no
genuine dispute as to any material fact and that it is entitled to judgment as a matter of
law. The government relies upon SOW§ 6.4.6.1.(c) (gov't mot. at 3, 9), which required
appellant to "provide the potable water service between the main line to the 5-foot line of
the building," but the same section required the government to "provide primary or main
water pipe distribution" (SOF ~ 4). The government does not demonstrate which, if any,
of the lines in question were lines within 5 feet of the building, as opposed to lines for
"primary or main water pipe distribution."

        In addition, although the government relies upon drawing notes (gov't mot. at
9-11 ), it cites no evidence that establishes which water lines at issue are those referenced
in those notes. For example, the government recites a portion of note 4 of the Overall
Project Construction Access drawing (gov't mot. at 3, ~ 5). That note references at least
four water lines, two of which are 24 11 lines: an abandoned 24 11 cast iron line, and "AN
EXISTING 24 11 WATER LINE UNDER THE NEW POV PARKING LOTS WILL
ALSO NEED TO [BE] REMOVED" (SOF ~ 7). However, the government recites only

4
    Appellant does not dispute that pursuant to Amendment No. 7, which replaced all
        references in § 6.4.6.1. to "Infrastructure Contractor" with "D/B Contractor"
        (R4, tab 4(h) at 3151 ), the term "Infrastructure Contractor" in § 6.4.6.1.( d)
        refers to appellant (app. resp. at 11).
5
    Although § 6 .3 .1. 5. provides that "infrastructure drawings are provided as
        'for information only' reference" (SOF ~ 6), we need not decide now
        what that language means.
                                               5
the portion of the note referencing the cast iron line; it omits the "EXISTING 24"
WATER LINE" language (gov't mot. at 3, if 5). Nevertheless, the government does not
cite any evidence that establishes that the 24" line that is the subject of appellant's claim
is the cast iron line referenced in the note.

        Even if the government had recited the omitted language, the note uses the term
"24" WATER LINE," whereas appellant, tracking the language of section 6.4.6.1.( c) that
imposes obligations upon the government, refers to "the 24 inch primary or main water
line" (app. resp. at I I) (emphasis added). Indeed, the government does not reply directly
to appellant's contention that, in its view, "[t]he problem is that [appellant] never
received a compensation for relocating the 24 inch primary or main water line" (id.).

       The government also recites drawing note references to an "8" loop" and a "fire
waterline" (gov't mot. at 3, ifif 5-6), but does not establish as undisputed fact that
appellant's IO" fire loop claim concerns those features. Finally, the government does not
explain whether "THE I2" LINE" referenced in a drawing note is the subject of
appellant's I2" line claim; even so, that note states that "THE I2" LINE WILL BE
REMOVED AND REROUTED" without stating who would be responsible for that work
(SOF if 7). If the government's position is that the contract imposed upon appellant the
obligation to perform all water line work within the site, its motion does not establish that
obligation.

       In short, the government has not met the standard for summary judgment upon
the water line claims. This may be a case in which evidence of trade practice and
custom plays an important role in contract interpretation, to explain the meaning of
technical terms in contract provisions and on contract drawings. See generally Metric
Constructors, Inc. v. NASA, I69 F.3d 747, 752 (Fed. Cir. I999). The Board might also
benefit from further, detailed evidence from those with personal knowledge of the
contract work, or from stipulated facts. Because the government contends that it
intended that the work would comply with the contract drawings (gov't reply at 1), we
note that the subjective, unexpressed intent of one of the parties is irrelevant to contract
interpretation. Elam Woods Constr. Co., ASBCA No. 52448, OI-I BCA if 3I,305
at I54,547.




                                             6
                                     CONCLUSION

       The Board denies the motion for summary judgment. The parties shall confer and,
within 21 days of the date of this decision, file a jointly-proposed schedule for further
proceedings.

       Dated: 2 September 2014




                                                 Administrative Judge
                                                 Armed Services Board
                                                 of Contract Appeals


I concur                                         I concur




~~E~
Administrative Judge                             Administrative Judge
Acting Chairman                                  Vice Chairman
Armed Services Board                             Armed Services Board
of Contract Appeals                              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. 59046, Appeal of GSC
Construction, Inc., rendered in conformance with the Board's Charter.

       Dated:



                                                 JEFFREY D. GARDIN
                                                 Recorder, Armed Services
                                                 Board of Contract Appeals




                                           7
