                ARMED SERVICES BOARD OF CONTRACT APPEALS

Appeals of --                                 )
                                              )
Classic Site Solutions, Inc.                  )      ASBCA Nos. 58376, 58573
                                              )
Under Contract No. W912DR-l l-C-0022          )

APPEARANCES FOR THE APPELLANT:                       Mark S. Dachille, Esq.
                                                     Nicole L. Campbell, Esq.
                                                      Huddles Jones Sorteberg & Dachille, P.C.
                                                      Columbia, MD

                                                     Drew W. Colby, Esq.
                                                      Partridge Snow & Hahn, LLP
                                                      Westborough, MA

APPEARANCES FOR THE GOVERNMENT:                      Thomas H. Gourlay, Jr., Esq.
                                                      Engineer Chief Trial Attorney
                                                     William J. Selinsky, Esq.
                                                     Scott C. Seufert, Esq.
                                                     Richard P. White, Esq.
                                                      Assistant District Counsel
                                                      U.S. Army Engineer District, Baltimore

               OPINION BY ADMINISTRATIVE JUDGE CLARKE
        ON THE PARTIES' CROSS-MOTIONS FOR SUMMARY JUDGMENT

       The parties each move for summary judgment in what is referred to as the "Tank
Mix" claim, ASBCA Nos. 58376, 58573. The contract involved construction of a test
track for military vehicles, including tanks, at Aberdeen Proving Ground, Maryland.
These particular motions involve questions of contract interpretation relating to the type
of pavement required by the contract. We have jurisdiction pursuant to the Contract
Disputes Act of 1978 (CDA), 41 U.S.C. §§ 7101-7109. We grant partial summary
judgment in favor of the government and deny appellant's motion.

        STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTIONS

        1. Contract No. W912DR-l 1-C-0022 (0022) was awarded to CSSI on 31May2011
(R4, tab 4 at 2, tab 11). The contract required CSSI to construct an automotive vehicle test
and evaluation facility (ATEF) at Aberdeen Proving Ground, Maryland (APG), that
included a 4.5 mile paved test track (R4, tab 4 at 5). The contract included three contract
line item numbers (CLINs): CLIN 0001 Construction of ATEF Phase II; CLIN 0002
Bituminous Cone. Wearing Course; and CLIN 0003 Bituminous Cone. Binder Course (id. at
3, 4).

      2. The project construction specifications included section 32 12 16, Hot-Mix
Asphalt (HMA) for Roads (R4, tab 7), that reads in pertinent part:

              2.3 MIX DESIGN

                a. HMA classified as Tank Mix shall be used for all
                bituminous concrete pavements. Tank Mix is used
                exclusively at Aberdeen Proving Ground for heavy-duty
                pavements, and has been locally available for several years.
                The nominal maximum aggregate size (NMAS) shall be
                19.0 mm for the binder course and 12.5 mm for the
                wearing course. The Tank Mix producer shall have at least
                5 years of experience in producing the submitted Tank
                Mix, and a record of successful production and use of such
                product on the APG Garrison. If Tank Mix is no longer
                locally available, then the Contractor shall develop the mix
                design as specified in Part b. or c., below.

(R4, tab 7 at 13) Subparagraph b. provides that the contractor shall develop a mix design
in accordance with the guidance therein. Subparagraph c. allows the use of "MdDOT
Superpave hot mix" in accordance with the guidance therein. (Id.)

      3. The contract incorporated the FAR 52.236-5, MATERIAL AND WORKMANSHIP
(APR 1984) clause (R4, tab 4 at 7), which provides in pertinent part:

              References in the specifications to equipment, material,
              articles, or patented processes by trade name, make, or
              catalog number, shall be regarded as establishing a standard
              of quality and shall not be construed as limiting competition.
              The Contractor may, at its option, use any equipment,
              material, article, or process that, in the judgment of the
              Contracting Officer, is equal to that named in the
              specifications, unless otherwise specifically provided in this
              contract.

       4. On 16 January 2012, CSSI submitted its mix design for approval (supp. R4, tab
33 at 2). The submittal included two letters from Maryland Paving, Inc., indicating that it
would supply mix design "option 'C"' as approved by the Maryland State Highway
Administration (id. at 6). The submittal was disapproved:



                                             2
              The mix design does not satisfy Part 2.3 "A" of the project
              specifications. The specifications require that "Tank Mix"
              hot mix asphalt be used by the contractor on this project,
              provided it is still locally available. To-date, this mix design
              is locally available from Independence Materials, of
              Aberdeen, Md. Therefore, the contractor cannot exercise
              options "B" or "C" for this project. However, this submission
              by the Contractor is an effort to exercise option "C"; altering
              a MdDOT Superpave mix design to meet the project
              specifications.

              Please contact a local supplier and submit a "Tank Mix"
              design that has been successfully used for at least 5 years on
              the APG Garrison.

(Supp. R4, tab 33 at 3)

       5. On 20 February 2012, CSSI objected to the government's disapproval of the
mix design submittal stating among other things that the government was improperly
requiring a brand name product (R4, tab 19).

       6. On 4 April 2012, CSSI submitted two separate requests for mix design
approval (supp. R4, tabs 34, 35). The first submission was the same mix design that was
submitted on 16 January 2012 that had been disapproved. This mix design was again
disapproved with the same rationale. (Supp. R4, tab 34 at 2) The second submission that
offered the "Tank Mix" formula from Independence Construction Materials (ICM), of
Aberdeen MD, was approved by the government (supp. R4, tab 35 at 3). CSSI
subsequently supplemented its approved submission to respond to the comments (supp.
R4, tabs 36, 37). The ICM tank mix design was approved (supp. R4, tab 37 at 1).

       7. On 10 May 2012, CSSI's counsel submitted to the government a "Written
Notice of Change" for "upwards of $500,000" resulting from the government's order that
CSSI use ICM's "Brand name" tank mix in lieu of the less expensive alternative mix
design initially submitted by CSSI for approval (R4, tab 21 ).

        8. CSSI provided ICM's local tank mix and on 8 June 2012, CSSI submitted a
certified claim for $846,236.60 as a result of the government's direction that CSSI use
ICM's tank mix design (R4, tab 22).

        9. CSSI submitted an appeal based on a deemed denial on 5 November 2012.
The Board docketed the appeal as ASBCA No. 58376 on 6 November 2012. The claim
was formally denied by contracting officer's final decision dated 5 December 2012 (R4,
tab 1). CSSI filed a notice of appeal from that final decision on 26 February 2013 and it


                                             3
was docketed as ASBCA No. 58573 and consolidated with ASBCA No. 58376 and other
CSSI appeals under the contract.

                                        DECISION

Contract Interpretation/Extrinsic Evidence

        We recognize that the parties submitted much more detailed factual analyses than
reflected in our SOFs above. The parties refer to numerous documents and
affidavits/declarations from witnesses. Our SOFs reflect the minimum facts necessary for
the Board to evaluate the parties' contentions; we do not rely on the extrinsic evidence
submitted by the parties. 1 This is because a motion for summary judgment based on an
issue of contract interpretation may only be granted if there is no ambiguity requiring
reliance on extrinsic evidence. Dixie Construction Co., ASBCA No. 56880, 10-1 BCA
~ 34,422 at 169,918 ("Legal questions of contract interpretation are amenable to summary
resolution, unless there is an ambiguity that requires the weighing of extrinsic evidence"
and "extrinsic evidence will not be received unless there is such an ambiguity."). An
ambiguity exists when there are two reasonable interpretations of the language under
consideration. Teg-Paradigm Environmental, Inc. v. United States, 465 F.3d 1329, 1338
(Fed. Cir. 2006) (When a provision in a contract is susceptible to more than one reasonable
interpretation, it is ambiguous, and we may then resort to extrinsic evidence to resolve the
ambiguity.). Additionally, summary judgment is appropriate only where there is no genuine
issue of material fact and the moving party is entitled to judgment as a matter of law. Any
significant doubt over factual issues, and all reasonable inferences, must be resolved in
favor of the party opposing summary judgment. Mingus Constructors, Inc. v. United States,
812 F.2d 1387, 1390 (Fed. Cir. 1987); Dixie, 10-1BCA~34,422 at 169,918.

      Thus the Board must attempt to interpret paragraph 2.3a. of specification section
32 12 16, quoted in SOF ~ 2 above, based on the language alone. Ifwe conclude there is
more than one reasonable interpretation, the language is ambiguous and summary
judgment must be denied. Dixie, 10-1 BCA ~ 34,422 at 169,919.

Contentions of the Parties

        Appellant contends that the government's demand that CSSI provide local tank
mix was a compensable change for three alternative reasons: (1) Specification 32 12 16,
Hot-Mix Asphalt (HMA) for Roads, allowed CSSI to provide one of three options: either
local "Tank Mix" (subparagraph a.), or develop its own mix design (subparagraph b.), or
provide MdDOT approved Superpave Mix (subparagraph c.) (app. mot. at 21-32); (2) A
"local tank mix" was not available (app. mot. at 42); or (3) Pursuant to the Material and

1
    CSSI moved to strike paragraphs in Mr. Babcock's declaration. Since we do not rely
        on his declaration or any other affidavits/declarations, CSSI's motion is moot.

                                             4
Workmanship clause, provide a mix design that was "equal" to local tank mix (app. mot.
at 44-57). CSSI also argues that the government's specification requiring a proprietary
mix design is too restrictive and the government failed to comply with regulations to
obtain approval of the use of a proprietary mix design (app. mot. at 32-37).

       The government contends that Section 32 12 16 cannot be interpreted to allow
submission in accordance with subparagraphs b and c if the tank mix in subparagraph a is
available. Since a local tank mix design from a producer that successfully produced and
used the product for at least five years was available, CSSI was obligated to use that
product (gov't mot. at 10-13).

Discussion

Restrictive Solicitation and Regulatory Violations

        CSSI complains that the specifications were too restrictive and the government
violated procurement regulations (app. mot. at 32-36). CSSl's remedy for overly
restrictive specifications was to file a protest which it failed to do. C&D Construction,
Inc., ASBCA Nos. 48590, 49033, 97-2 BCA ii 29,283 at 145,697 ("C&D's remedy was
to file a bid protest on the basis that the solicitation unduly restricted competition. We do
not have jurisdiction to make such a determination."). (Citations omitted)

Interpretation of 2. 3 MIX DESIGN, subparagraph a.

       Paragraph 2.3 MIX DESIGN consists of five sentences; we discuss the three
relevant sentences. The first sentence of paragraph 2.3a. reads: "HMA classified as
Tank Mix shall be used for all bituminous concrete pavements" (SOF ii 2). This
language is clear and unambiguous and susceptible to only one reasonable inte~retation.
Subject to the rest of subparagraph a., hot-mix asphalt classified as "Tank Mix" must be
used. We reject CSSl's argument that the words "classified as" somehow detract from
the clear mandatory meaning of the first sentence as unreasonable (app. mot. at 23-29).
The second sentence is a statement on historical usage of tank mix at APG and is relevant
only in that it indicates tank mix "has been locally available for several years." The third
sentence identifies "nominal maximum aggregate size" for the binder and wearing
courses of tank mix and is not relevant to our interpretation. The fourth sentence reads,
"[t]he Tank Mix producer shall have at least 5 years of experience in producing the
submitted Tank Mix, and a record of successful production and use of such product on
the APG Garrison." This sentence is clear and unambiguous and susceptible to only one
reasonable interpretation. It requires that the tank mix producer have 5 years of
successful "production" of tank mix and successful "use" of tank mix on APG. The fifth

2
    For our purposes, we need not delve into what 'Tank Mix" is because it would require
         consideration of extrinsic evidence.

                                             5
sentence reads, "[i]f Tank Mix is no longer locally available, then the Contractor shall
develop the mix design as specified in Part b. or c., below." This sentence is clear and
unambiguous and susceptible to only one reasonable interpretation. It creates a condition
precedent to the use of subparagraph b. or c. Therefore, we reject CSSI's argument that
the absence of the words "only" or "only if' creates an ambiguity (app. mot. at 29-32).
We disagree with CSSI's interpretation of the language of paragraph 2.3 MIX DESIGN
that it had the right to choose any one of the three options in paragraphs 2.3a., b. and c.
regardless of the availability of local tank mix. Accordingly we grant summary judgment
in favor of the government on this point. Appellant was not entitled under the terms of
the specification to use options b. or c.

Availability of Local Tank Mix

       CSSI argues that tank mix was not locally available because it "does not meet the
ATEF II Recipe" (app. mot. at 41-42). We consider "availability" to be a disputed
question of fact and not susceptible for decision on summary judgment.

The Material and Workmanship Clause

       The contract includes FAR 52.236-5, MATERIAL AND WORKMANSHIP (APR 1984)
(SOF ii 3). The clause specifically states that identification by brand name shall not limit
competition. We have held that the purpose of the clause is to promote competition.
Southern Playground, Inc., ASBCA Nos. 43797, 43798, 02-1 BCA ii 31,853; CPF
Underground Utilities, Inc., ASBCA No. 33436, 87-1BCAii19,596 at 99,123 (The
purpose of the clause is "to discourage the potentially monopolistic practice of
demanding the use of brand-name or designated articles in government contract work.").
CSSI claims that the government's insistence on ICM's tank mix cost an additional
$846,236.60 (SOF ii 8) and that the government should bear that cost because CSSI
offered a less expensive, functionally equivalent design mix.

       Inclusion of the Material and Workmanship clause qualifies the general rule that,
after award, the government is entitled to strict compliance with every technical
requirement of the contract's specifications. The clause provides a contractor the right to
submit a substitute product for a proprietary item called for in the contract's specification
absent a warning that only the proprietary item will be accepted. North American
Construction Corp., ASBCA No. 47941, 96-2 BCA ii 28,496 at 142,298. Use of the
word "shall" is not a sufficient warning. Minority Enterprises, Inc., ASBCA
No. 45549 et al., 95-1BCAii27,461at136,827. Language such as,
"NOTWITHSTANDING any other provision of the contract, no other product will be
acceptable" is sufficient warning to preclude substitution. Maron Construction Co.,
ASBCA No. 53933, 05-1BCAii32,904 at 163,026. The government did not include
such a warning in paragraph 2.3 MIX DESIGN (SOF ii 2).



                                              6
      The contractor bears the burden of proof that it is entitled to submit a substitute
item. The contractor must prove:

              (1) the specifications are proprietary, (2) appellant submitted
              a substitute product along with sufficient information for the
              contracting officer to make an evaluation of the substitute,
              and (3) the proposed substitute meets the standard of quality
              represented by the specifications.

North American, 96-2 BCA ii 28,496 at 142,299; Blount Brothers Corp., ASBCA
No. 31202, 88-3 BCA ii 20,878 at 105,575. The record as it presently exists does not
allow the Board to conclude that CSSI has satisfied this burden of proof and therefore
whether it is entitled to an equitable adjustment for the contracting officer's refusal to
allow CSSI to substitute for the "Tank Mix" alleged to be proprietary.

                                      CONCLUSION

       For the reasons stated above, we grant partial summary judgment in favor of the
government as to the interpretation of the Mix Design clause as set forth herein. We
deny the remainder of the government's motion. We deny CSSI's motion.

       Dated: 26 June 2014




                                                   Administra ve Judge
                                                   Armed Services Board
                                                   of Contract Appeals


I concur                                           I concur



~~~ RIC~CKLEFORD
Administrative Judge                              Administrative Judge
Acting Chairman                                   Vice Chairman
Armed Services Board                              Armed Services Board
of Contract Appeals                               of Contract Appeals




                                              7
       I certify that the foregoing is a true copy of the Opinion and Decision of the
Armed Services Board of Contract Appeals in ASBCA Nos. 58376, 58573, Appeals of
Classic Site Solutions, Inc., rendered in conformance with the Board's Charter.

      Dated:



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




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