                           UNITED STATES DISTRICT COURT
                           FOR THE DISTRICT OF COLUMBIA

_________________________________________
                                          )
UNITED STATES OF AMERICA, for the use )
and benefit of AMERICAN CIVIL             )
CONSTRUCTION, LLC,                        )
                                          )
      Plaintiff,                          )
                                          )
              v.                          )                 Case No. 14-cv-00745 (APM)
                                          )
HIRANI ENGINEERING & LAND                 )
SURVEYING, P.C., et al.,                  )
                                          )
      Defendants.                         )
_________________________________________ )


                   FINDINGS OF FACT AND CONCLUSIONS OF LAW

       This dispute between Plaintiff American Civil Construction, LLC (“Plaintiff” or “ACC”)

and Defendants Hirani Engineering & Land Surveying, PC (“Hirani”) and Colonial Surety

Company (“Colonial”) arises out of ACC’s work as a subcontractor to Hirani on a federal

government construction project located on the National Mall in the District of Columbia.

        ACC brought this action against Colonial under the Miller Act, 40 U.S.C. § 3133, and also

brought a state law claim against Hirani for breach of contract. As to both claims, Plaintiff seeks

$2,172,285.23 in money damages, plus prejudgment interest, attorney’s fees, and costs. Colonial,

in turn, brings a variety of counterclaims against ACC and asserts that it incurred losses in the

amount of $723,049.14 to finish the project that ACC failed to complete.

       After denying Defendants’ motion for summary judgment, the court conducted a five-day

bench trial in March 2018. After the bench trial concluded, the parties submitted proposed findings
of fact and conclusions of law, as well as briefs in rebuttal. The court held a final oral argument

on June 14, 2018.

       As required by Federal Rule of Civil Procedure 52(a)(1), the court now makes its Findings

of Fact and Conclusions of Law. The court has reviewed the parties’ submissions, carefully

considered the evidence presented at trial, weighed the credibility of the witnesses, and applied the

applicable law. For the reasons set forth below, the court has determined that Plaintiff has met its

burden of proof with respect to its Miller Act claim against Colonial and its breach of contract

claim against Hirani. On the other hand, the court finds that Defendant Colonial has not sustained

its burden of proof on its counterclaims.

       Accordingly, the court will enter final judgment in favor of ACC. It will formally do so,

however, only after ACC submits a final damages calculation that is consistent with these Findings

of Fact and Conclusions of Law.

                                        BACKGROUND

       To provide clarity and context for these findings of fact and conclusions of law, the court

provides a brief overview of the undisputed facts underlying this case and then summarizes the

case’s procedural history.

       A.      Factual Background

       In June 2010, the United States Army Corps of Engineers (“USACE”) issued a solicitation

for bids to construct a levee wall across 17th Street, N.W. in the District of Columbia, south of

Constitution Avenue, N.W. (the “Project”). Flanked on the west side by the National World War

II Memorial and on the east side by the Washington Monument, the 380-foot-long levee wall was

designed to prevent the Potomac River from flooding across the National Mall into downtown

Washington, D.C. As designed, the 17th Street levee wall consists of two permanent stone-clad



                                                 2
levee stem wall sections, one on the east side and the other on the west side of 17th Street, which

sit on a curved grade beam foundation supported by twenty-four reinforced concrete caissons

running underground across the street. The grade beam foundation running across 17th Street

contains eight “post pockets.” In the event of a 100-year flood, these pockets are filled with an

eight-foot-tall temporary metal post and aluminum panel system that connect to the east and west

levee stem walls to block surging floodwaters. The images below illustrate the Project.




                   Images: completed stone-clad levee stem walls (Source Pl.’s Ex. 5)




                        Drawing of 17th Street levee (Source: Washington Post)

       Following a bid process, on September 16, 2010, the USACE awarded Hirani the contract

(“the Prime Contract”) to construct the 17th Street levee wall for the amount of $3,833,097.00.

The USACE subsequently awarded “Option 1” to Hirani on December 16, 2010, requiring Hirani

                                                   3
to install stone veneer cladding and coping on the permanent levee walls for $641,369.00. As

required by Hirani’s contract with the USACE, Colonial issued performance and payment bonds

on behalf of Hirani.

        On April 4, 2011, ACC and Hirani entered into a fixed-price subcontract (“the

Subcontract”) for $2,845,600.00, under which ACC agreed to perform most, but not all, of Hirani’s

obligations under the Prime Contract. ACC began performing under the Subcontract a week later,

and Hirani subsequently subcontracted Option 1 to ACC in the amount of $613,650.00.

        The ensuing years on the Project were beset by a series of delays, modifications to the

scope of the Project, and work-related disputes. By letter dated April 26, 2013, two-and-a-half

years after it awarded the Prime Contract to Hirani, the USACE gave notice of its intent to

terminate Hirani. In the days following Hirani’s termination, ACC left the Project site. The

USACE subsequently made a demand against the Performance Bond issued by Colonial, and

Colonial stepped in to complete the Project. With the assistance of Loewke Brill, a consulting

firm, Colonial contracted with Akima Construction Services, LLC, Lorton Stone, LLC, and

Structural Stone, LLC, to complete the Project, including Option 1, and did so around November

2014.

        B.     Procedural Background

        ACC filed suit in this court against Hirani and Colonial on April 29, 2014. See Compl.,

ECF No. 1. Colonial responded by filing four counterclaims against ACC: (1) two for breach of

contract, one as assignee of Hirani and one as surety; (2) one for breach of the covenant of good

faith and fair dealing; and (3) one for interference with contractual relations. See Def. Colonial’s

Answer & Countercls., ECF No. 8. With leave of court, Plaintiff filed a Second Amended

Complaint on February 16, 2016, asserting two claims: (1) breach of contract against Hirani, and



                                                 4
(2) a payment demand under the Miller Act against Colonial, premised on the payment bond

Colonial issued in connection with the Prime Contract. Plaintiff’s Second Amended Complaint

sought quantum meruit damages in the amount of $2,070,185.23. See Second Amended Compl.,

ECF No. 26.

       Following discovery, Defendants jointly filed a Motion for Summary Judgment and a

Motion to Strike Plaintiff’s Jury Demand. See Defs.’ Mot. for Summ. J., ECF No. 44; Defs.’ Mot.

to Strike Jury Demand, ECF No. 45. The court denied Defendants’ Motion for Summary Judgment

and granted Defendants’ Motion to Strike the Jury Demand on June 27, 2017. See Mem. Op.,

ECF No. 54; Order, ECF No. 55. Following a delay in the proceedings, the parties appeared for a

Pretrial Conference on February 23, 2018. See Pretrial Conf. Hrg. Tr. (February 23, 2018),

ECF No. 75. The court thereafter conducted a bench trial over the course of five days from March

5, 2018, to March 9, 2018. See Trial Tr. Day 1 A.M. Session (March 5, 2018), ECF No. 76

[hereinafter Day 1 A.M. Tr.]; Trial Tr. Day 1 P.M. Session [hereinafter Day 1 P.M. Tr.]; Trial Tr.

Day 2 A.M. Session (March 6, 2018), ECF No. 77 [hereinafter Day 2 A.M. Tr.]; Trial Tr. Day 2

P.M. Session [hereinafter Day 2 P.M. Tr.]; Trial Tr. Day 3 A.M. Session (March 7, 2018), ECF

No. 78 [hereinafter Day 3 A.M. Tr.]; Trial Tr. Day 3 P.M. Session [hereinafter Day 3 P.M. Tr.];

Trial Tr. Day 4 A.M. Session (March 8, 2018), ECF No. 79 [hereinafter Day 4 A.M. Tr.]; Trial Tr.

Day 4 P.M. Session [hereinafter Day 4 P.M. Tr.]; Trial Tr. Day 5 A.M. Session (March 9, 2018),

ECF No. 80 [hereinafter Day 5 A.M. Tr.].

       During the bench trial, ACC presented three witnesses: (1) Irene Stephen, owner of ACC,

who also served as Hirani’s on-site Contractor Quality Control Assistant on the Project;

(2) Jitendra Hirani, president of Hirani; and (3) Rick Janeiro, president of Roubin & Janeiro, Inc.,

a local stone contractor. Ms. Stephen, ACC’s primary witness, testified both as a fact witness and



                                                 5
as an expert in cost accounting in the heavy and highway construction industry. See Day 1 A.M.

Tr. at 37:14–95:1; Day 1 P.M. Tr. at 5:10–21:5; Day 2 A.M. Tr. at 6:5–125:17; Day 2 P.M. Tr. at

3:9–112:12; Day 3 A.M. Tr. at 77:1–138:11; Day 3 P.M. Tr. at 3:4–86:6. Mr. Hirani, called as an

adverse witness, testified as a fact witness regarding Hirani’s Prime Contract with the USACE,

disputes and delays on the Project resulting from claimed failures by ACC to submit scheduling

data, and Hirani’s termination from the Project. See Day 1 P.M. Tr. at 21:12–107:24. Mr. Janeiro

testified as a fact witness regarding his company’s role as ACC’s stone supplier and subcontractor

to complete Option 1 of the Project. See Day 3 A.M. Tr. at 6:7–75:25.

       Defendants presented two witnesses in their case: (1) Michael Vogt, an executive vice

president of Loewke Brill Consulting Group, Inc., which Colonial hired in July 2013 to oversee

completion of the Project after Hirani’s termination; and (2) Robert Franklin, the USACE’s project

engineer for the Project. Mr. Vogt testified as a fact witness regarding the status of the Project

upon Hirani’s termination, the work remaining under the Prime Contract and Subcontract, and the

costs incurred by Colonial to complete the Project. See Day 4 A.M. Tr. at 11:6–118:5; Day 4 P.M.

Tr. at 3:4–85:11; Day 5 A.M. Tr. at 6:1–22:21, 98:9–130:20. Mr. Franklin testified as a fact

witness regarding Hirani’s and ACC’s performances under the Prime Contract and Subcontract,

the USACE’s termination of Hirani, and Colonial’s eventual completion of the Project. See Day

5 A.M. Tr. at 23:15–97:25. In its rebuttal case, ACC recalled Irene Stephen. See Day 5 A.M. Tr.

at 139:11–160:13. Both parties introduced a substantial volume of exhibits.

       After Defendants rested their case, defense counsel made oral motions for judgment as a

matter of law as to ACC’s Miller Act claim pursuant to Federal Rules of Civil Procedure 50(a) and

52(c), asserting that no reasonable factfinder could conclude that ACC performed compensable

work within one year of commencing its action as required by the Miller Act, 40 U.S.C.



                                                6
§ 3133(b)(4). See Day 5 A.M. Tr. at 161:2–161:20. The court deferred ruling on these motions.

Id. at 161:21–162:3. 1

        Following the close of trial, each party submitted its proposed findings of fact and

conclusions of law to the court. See Pl.’s Proposed Findings of Fact & Conclusions of Law, ECF

No. 82 [hereinafter Pl.’s FOF & COL]; Defs.’ Proposed Findings of Fact & Conclusions of Law,

ECF No. 83 [hereinafter Defs.’ FOF & COL]. The parties also submitted opposition briefs. See

Defs.’ Rebuttal re: Pl.’s FOF & COL, ECF No. 86 [hereinafter Defs.’ Rebuttal]; Pl.’s Response

re: Defs.’ FOF & COL, ECF No. 87 [hereinafter Pl.’s Rebuttal]. The court held oral argument on

these submissions on June 14, 2018. See Oral Arg. Tr. (June 14, 2018), ECF No. 90 [hereinafter

Final Arg. Tr.].

                                           LEGAL STANDARD

        “In an action tried on the facts without a jury . . . the court must find the facts specially and

state its conclusions of law separately.”             Fed. R. Civ. P. 52(a)(1).           “The findings and

conclusions . . . may appear in an opinion or a memorandum of decision filed by the court.” Id.

“The [c]ourt’s findings must be sufficient to indicate the factual basis for the ultimate conclusion.”

Paleteria La Michoacana, Inc. v. Productos Lacteos Tocumbo S.A., 188 F. Supp. 3d 22, 34 (D.D.C.

2016) (internal quotation marks omitted). However, “[i]n setting forth the findings of fact, the

court need not address every factual contention and argumentative detail raised by the parties,

[n]or discuss all evidence presented at trial.” Moore v. Hartman, 102 F. Supp. 3d 35, 65 (D.D.C.

2015) (internal quotation marks and citations omitted). Instead, “‘the judge need only make brief,

definite, pertinent findings and conclusions upon the contested matters’” in a manner that is

“sufficient to allow the appellate court to conduct a meaningful review.” Wise v. United States,


1
 By virtue of these Findings of Fact and Conclusions of Law, the court denies Defendants’ motions made under Rules
50(a) and 52(c).

                                                        7
145 F. Supp. 3d 53, 57 (D.D.C. 2015) (quoting Fed. R. Civ. P. 52(a) advisory committee note to

1946 amendment).

         A litigant bears the burden of proving each element of its claim by a preponderance of the

evidence, a standard that “requires a factfinder to decide that the existence of a fact is more

probable than not.” See Window Specialists, Inc. v. Forney Enters, Inc., 106 F. Supp. 3d 64, 88

(D.D.C. 2015) (citing Concrete Pipes & Prods. of Cal., Inc. v. Constr. Laborers Pension Trust for

S. Cal., 508 U.S. 602, 622 (1993)). As the factfinder, the court “must evaluate the raw evidence,

finding it to be sufficiently reliable and sufficiently probative to demonstrate the truth of the

asserted proposition with the requisite degree of certainty.” Bensayah v. Obama, 610 F.3d 718,

725 (D.C. Cir. 2010) (quotation marks and citation omitted).

                                              FINDINGS OF FACT 2

         With these principles in mind, the court makes the following findings of fact:

THE PARTIES

    1.   Plaintiff American Civil Construction (“ACC”) is a Maryland limited liability company.

At all times relevant, ACC was engaged in the business of heavy and highway civil construction

contracting.

    2.   Defendant Hirani Engineering & Land Surveying (“Hirani”) is a New York corporation.

    3.   Defendant Colonial Surety Company (“Colonial”) is a Pennsylvania surety corporation.




2
  The court cites portions of the record to support its findings of fact, but has not identified every portion of the record
upon which it relies to make those findings. The omission of a citation to a particular portion of the record does not
necessarily mean that the court did not rely on that portion to make its findings of fact. Rather, the court has considered
the record in its entirety, including the court’s own determination of witnesses’ credibility, and its citations to portions
of the record are simply intended to provide a helpful reference for the basis of its findings. See Paleteria La
Michoacana, 188 F. Supp. 3d at 35.

                                                             8
THE PROJECT AND PRIME CONTRACT

  4.      On or about June 25, 2010, the United States Army Corps of Engineers (“USACE”) issued

a solicitation for a fixed-price construction proposal for a project to build a levee flood wall across

17th Street, N.W. in the District of Columbia, between Constitution and Independence Avenues,

N.W. Pl.’s Ex. 10, at 37; Pl.’s Ex. 11.

  5.      The construction project is known as the “Washington D.C. and Vicinity, Local Flood

Protection Project, 17th Street Closure Structure” (the “Project”). Pl.’s Ex. 11.

  6.      The Project involved the installation of twenty-four reinforced concrete caissons embedded

approximately five to ten feet into solid bedrock. These twenty-four caissons support a 380-foot

long, curved grade beam foundation. Sitting on top of this grade beam foundation are two

permanent 120-foot levee stem wall sections, one on the east side and one on the west side of 17th

Street.

  7.      The Project also required, among other things, construction of a temporary eight-foot high

protective stockade wood fence around the construction work areas; regrading of disturbed areas;

temporary maintenance of traffic barriers and signs during partial closures of 17th Street to vehicle

traffic; and landscaping (tree and sod planting).

  8.      On August 27, 2010, Hirani submitted its bid proposal, in the following amounts:

(1) $3,833,097.00 for the base contract work of the Project, excluding any options that the USACE

may exercise during the course of the Project; (2) $641,369.00 for installing stone veneer on the

levee walls (“Option 1”); and (3) $99,125.00 for planting new trees and sod on the east side of

17th Street (“Option 2”). See Pl.’s Ex. 17, at 1, 3–6.




                                                    9
 9.    On September 16, 2010, the USACE awarded Hirani Contract No. W912DR-10-C-0093

(the “Prime Contract”), accepting Hirani’s base contract work bid of $3,833,097.00 for the

construction of the Project. See id. at 1.

10.    The Prime Contract contemplated completion of the Project by October 12, 2011, one year

from issuance of the Notice to Proceed dated October 13, 2010. Pl.’s Ex. 56 at 3.

11.    The Prime Contract required Hirani to obtain a surety bond. Pl.’s Ex. 17 at 3.

12.    On October 1, 2010, Colonial, as surety, issued a performance bond and payment bond in

the sum of $3,833,097.00, each bearing the bond number CSC-218890, on behalf of Hirani, as

principal, and the United States of America, as obligee. See Pl.’s Exs. 24, 25.

THE SUBCONTRACT WITH ACC

13.    On April 4, 2011, six months after the USACE awarded the Prime Contract to Hirani, ACC

and Hirani entered into a written subcontract (the “Subcontract”), under which ACC would

perform specified work on the Project, as defined by the Subcontract. See Pl.’s Ex. 54 [hereinafter

Subcontract], at 6–16.

14.    Also, on April 4, 2011, Hirani separately retained Irene Stephen, a co-owner and an officer

of ACC, to serve as Hirani’s “Alternate Contractor Quality Control System Manager” and “Project

Quality Control System Administrator” on the Project. See Pl.’s Ex. 77 at 16–18. Ms. Stephen’s

responsibilities included, among other things, (a) to “[a]ssist with the conducting on a continuing

basis, sufficient daily follow-up reviews of work to ensure that all workmanship and materials”

conform to Project specifications; (b) to “[a]ssist with coordination and management of all quality

control and materials testing functions”; (c) to “[a]ssist with the preparation, management, and

submission of all Daily Quality Control Reports to the Owner’s Representative each workday at




                                                10
the project”; and (d) to “[a]ssist with the management, review, and tracking of” construction

efforts, construction deficiencies, and any stoppages or cessations of work. Id. at 17–18.

15.     ACC first began performance under the Subcontract beginning on April 11, 2011. Pl.’s Ex.

31 at 1; see Day 2 A.M. Tr. at 34:16–34:17.

16.     The Subcontract was a fixed-price agreement in the amount of $2,845,600.00 for “all labor,

services, materials, equipment or other items acquired, performed, furnished or used . . . with

respect to the Work,” along with applicable federal, state, and local taxes. See Subcontract at Art.

III, § 3.1.

17.     Pursuant to the Subcontract, ACC was required to provide the entire scope of work to

construct and manage the Project, except for Project management, quality control, and

miscellaneous metal structures and panels and related work assigned to Hirani under the Prime

Contract. See id. at Art. I, §§ 1.1, 1.4.

18.     Schedules A and B of the Subcontract define in greater detail the work ACC was required

to perform. See id. at Art. I, §§ 1.2, 1.3; id. at Sch. A–B.

19.     As provided in Schedule B, among other tasks, ACC was required to “provide project

supervision (Superintendent, Site Safety Officer, Traffic Control Officer) except for a project

manager to act on behalf of [Hirani]”; “work with the Hirani project manager in submitting

monthly requisitions, progress updates”; “provide all field labor to maintain the site and do general

cleanup as required”; “[f]urnish [and] install all fencing (site, silt, tree protection, temporary), and

relocate as per the drawings and specifications with appropriate signage”; “provide all grading

including all excavation & backfill as per the plans and specifications”; and “[f]urnish and install

all stone masonry work for base scope of work: curbs, grade beam, stone coping and cladding




                                                  11
adjacent to end post channels & expansion joints as per the plans and specifications.” See id. at

Sch. B, Pts. 2, 5, 8, 11, 14, 19.

20.     In the Subcontract, Hirani reserved the right to change, add, or eliminate portions of the

Work “at any time whatsoever, whether the Work or any part thereof shall or shall not have been

completed,” by written order submitted to ACC, and ACC agreed not to seek “extra or additional

compensation on account of any such work, unless same shall have been done pursuant to a written

order, signed by” a designated Hirani representative. See id. at Art. IV, § 4.1.

21.     ACC additionally agreed that, in the event a “dispute, controversy [,] or question” arose in

the interpretation of the Subcontract, it would not stop or delay performance of the Work or

delivery of labor or material, but would continue to work “pending the determination of such

dispute or controversy.” See id. at Art. XIV, § 14.1.

22.     The Subcontract specified the grounds for contract termination. See id. at Art. XV, § 15.1.

23.     Under the termination for default provision, the Subcontract provided that if ACC “fail[ed]

to timely provide labor, services, and/or materials for the Project in accordance with the terms of

[the] Subcontract, then Hirani [retained] the right at any time upon 7 days written cure notice to

[ACC] to terminate [the] Subcontract and require [ACC] to cease work.” See id.

24.     Under the termination for convenience provision, the Subcontract provided that if the

USACE “ch[ose] to terminate Hirani for the convenience of the [USACE], then [ACC] shall be

similarly terminated, and the obligations and rights of the parties shall be in accordance with the

provisions of the prime contract for such termination for convenience.” See id.

THE PROJECT SCHEDULE

25.     The Prime Contract required Hirani to “[e]nsure that the work in progress, and the finished

product, complies with all quality requirements of the plans and specifications.” Pl.’s Ex. 17 at 2.



                                                12
26.     Section 01 32 01 of the USACE’s Construction Specifications relates to scheduling for the

Project and details requirements for the creation, production, and updating of the Project Schedule.

See Pl.’s Ex. 12 [hereinafter Project Schedule Specifications], at 26–39.

27.     The Project Schedule was required to be a forward-planning and project monitoring tool

for the entire Project, including the design and construction sequences. The Schedule was required

to show the sequence in which the work on the Project would be performed and dates on which all

scheduled activities would be started and completed. Id. at § 3.1.

28.     The Project Schedule Specifications required that an authorized representative be

designated by Hirani “to be responsible for the preparation of the schedule and all required

updating (activity status) and preparation of reports.” Id. at § 1.2; see Day 1 P.M. Tr. at 64:11–

65:7.

29.     Hirani was responsible for the scheduling of construction for the Project, and Hirani

management personnel were required to actively participate in the development of the Schedule.

Project Schedule Specifications at § 3.1.

30.     ACC was required to contribute in developing and maintaining an accurate Project

Schedule. Id.

31.     Hirani was required to provide to the USACE a Schedule Status Report at least on a

monthly basis. Id. at § 3.1.2.

32.     If the USACE Contracting Officer determined that Hirani was falling behind the approved

schedule, the Contracting Officer could require increased work and overtime operations until the

approved rate of progress was restored. Hirani’s failure to comply with the requirements of the

USACE Contracting Officer would constitute grounds for a determination that Hirani was not




                                                13
prosecuting the work with sufficient diligence to ensure completion of the Project within the time

specified in the Prime Contract. Id. at §§ 3.1.2, 3.1.3.

33.    The Subcontract between Hirani and ACC incorporated the USACE’s Construction

Specifications and required ACC to perform the work under the Subcontract “in strict compliance

with the drawings, specifications, addenda, and bulletins.” See Subcontract at Art. I, § 1.2; Day 1

A.M. Tr. at 68:13–68:17.

34.    According to the Subcontract, the scheduling of all construction operations at the Project

was to be “mutually agreed” upon between ACC and Hirani and, “if requested,” ACC was required

to “furnish all scheduling information in such form and detail as required by [Hirani], to the

satisfaction [of] [Hirani],” within seven days of the request. ACC was also required to “update

and/or revise such information as requested by [Hirani] at any time, either prior to or during the

performance of [ACC’s] [w]ork.” See Subcontract at Art. II, § 2.2.

35.    In or around April 2011, Hirani hired Tom Miller of JSM Associates, Inc. as the scheduler

for the Project tasked with producing an initial schedule, or “Baseline Schedule,” and periodically

updated schedules for the Project. Day 1 A.M. Tr. at 78:9–78:22; see Day 1 P.M. Tr. at 39:23–

41:15, 64:11–65:7.

36.    Hirani submitted the Baseline Schedule to the USACE, as agreed upon by both Hirani and

ACC, and the USACE subsequently approved it in June of 2011. See Pl.’s Ex. 45; Day 1 A.M. Tr.

at 78:23–81:24.

37.    The Baseline Schedule projected a Project completion date of December 9, 2011. See Pl.’s

Ex. 45 at 18.

38.    After the USACE approved the Baseline Schedule, neither ACC nor the USACE agreed to

an updated Project schedule again. Day 1 A.M. Tr. at 81:22–82:4.



                                                 14
39.      Hirani submitted updated schedules to the USACE an additional four times: (1) on January

26, 2012, Pl.’s Ex. 46; (2) on April 23, 2012, Pl.’s Ex. 47; (3) on October 2, 2012, Pl.’s Ex. 48;

and (4) on December 12, 2012, Pl.’s Ex. 49.3 The USACE rejected each of these submissions.

See Pl.’s Exs. 46, 47, 48, 49; see also Day 1 A.M. Tr. at 85:13–85:21 (explaining that designation

of “E” on each cover page signified rejection by the USACE).

40.      Throughout its performance of the work, ACC supplied scheduling information to Hirani

in the form of (1) “Basic Outlines of Dates for Work Performed at the Site,” a backward-looking

spreadsheet summarizing work performed, and the dates of work performed, by ACC, see Pl.’s

Ex. 29; and (2) three-week “look-ahead” schedules, which as the name implies provided a

projection of work to be accomplished in the ensuing three weeks, see Pl.’s Ex. 41. Additionally,

Hirani’s own Quality Control Reports, which Ms. Stephen prepared on a daily basis, provided

information about work that ACC had accomplished on a given day. See Pl.’s Ex. 30.

41.      ACC further supplied an “Option 1 Schedule” reflecting when ACC intended to complete

Option 1 of the Prime Contract, i.e., the stone cladding on the stem walls. See Pl.’s Ex. 139 at 3–

5.

42.      On February 18, 2013, Hirani issued a Show Cause letter to ACC, in which Hirani

requested that ACC provide a proposed schedule for completing the Project with a contract

completion date of April 19, 2013. See Defs.’ Ex. 54 at 2.




3
  There is some ambiguity in the record as to whether Plaintiff’s Exhibits 46–49 are in evidence, as questions regarding
those exhibits were met with repeated objections regarding hearsay within those records. See Day 1 A.M. Tr. at
84:15–94:25. Although the court resolved these objections in favor of ACC, ruling that the USACE’s comments as
reflected in Exhibits 46–49 were not hearsay, see Day 1 P.M. Tr. at 3:2–5:7, ACC never formally sought to move
these exhibits into evidence. In any event, the sole purpose for which the court cites Plaintiff’s Exhibits 46–49—that
the USACE rejected Hirani’s updated schedules—was independently established through the testimony of Ms.
Stephen.

                                                          15
43.    The Show Cause letter was the first time, in writing, that Hirani had informed ACC that

the scheduling information ACC had submitted was unsatisfactory in form or detail, in the manner

provided in the Subcontract. See Defs.’ Ex. 54; see also Subcontract at Art. II, §§ 2.1–2.3.

44.    Additionally, the Show Cause letter was the first time, in writing, that Hirani had asked

ACC to update or revise any unsatisfactory scheduling information, in the manner provided in the

Subcontract. See Defs.’ Ex. 54; see also Subcontract at Art. II, §§ 2.1–2.3.

45.    Mr. Hirani testified at trial that Hirani requested scheduling data, verbally or in writing,

from ACC “50 to 100 times” prior to February 18, 2013, but ACC never delivered it. See Day 1

P.M. Tr. at 35:24–36:12 see also Defs.’ Ex. 62 at 6 (asserting in a letter to ACC dated March 22,

2013, that “ACC has failed to provide the necessary information required to maintain a progress

schedule for the last 20 months on the [P]roject as requested by Hirani . . . and did not provide

written justification of the delays per the schedule specification”) (emphasis added).

46.    The court does not find this testimony to be credible. Defendants presented no evidence,

written or testimonial, to corroborate Mr. Hirani’s assertion that ACC left unanswered Hirani’s

demands for satisfactory scheduling information.

47.    Defendants did not submit proof of any written demand by Hirani, in any form (e.g., letter,

email, handwritten note), for scheduling information from ACC during the nearly 20 months that

passed between approval of the Baseline Schedule in June 2011 and the Show Cause letter on

February 18, 2013. The voluminous documentary evidence showed that ACC maintained copious

records concerning the Project, including of its communications with Hirani. The court finds it

utterly implausible that, if as Mr. Hirani testified, he demanded scheduling information from ACC

dozens of times without success before February 18, 2013, that there would be no written record

whatsoever of at least one such demand.



                                                16
48.    Defendant presented no testimonial evidence to corroborate Mr. Hirani’s claim regarding

unanswered demands for scheduling information, including from Eric Hirani, Mr. Hirani’s son,

who was physically present at the Project more often than his father.

49.    Once more, beyond Mr. Hirani’s incredible testimony, there is no evidence in the record

that ACC ever refused, verbally or in writing, to provide Hirani with updated scheduling

information as required by § 2.2 of the Subcontract and Section 01 32 01 of the USACE’s

Construction Specifications.

PROGRESS ON THE PROJECT

50.    On April 8, 2011, four days after Hirani entered into the Subcontract with ACC, the

USACE issued a Cure Notice to Hirani requiring the following corrective actions to cure Hirani’s

performance problems on the Project to date: (1) resubmit an approvable Contractor Quality

Control plan; (2) designate a qualified Contractor Quality Control System Manager; (3) resubmit

an initial one-year Project schedule with a completion date of October 12, 2011; (4) supply

construction submittals; and (5) provide proof that competent Project Management staff is in place

to manage the Project. See Pl.’s Ex. 56.

51.    On August 26, 2011, the USACE issued a Change Order AD to Hirani, providing a non-

compensable time extension of 48 calendar days, thereby extending the substantial completion

date for the entire Project to November 30, 2011. Pl.’s Ex. 40 at 3–4.

52.    Over one year later, the Project remained unfinished. On December 16, 2012, the USACE

issued a unilateral modification to the Prime Contract through Change Orders AQ, AY, BF, and

BJ. See Pl.’s Ex. 123. The contract completion date for the Prime Contract was extended by 60

calendar days because of these modifications, resulting in an expected Project completion date of

January 29, 2012. See Pl.’s Ex. 123 at 5.



                                               17
53.    Change Order BJ, known as “East Side Grade Beam Adjustment,” required Hirani to

supply the labor, equipment, and materials to trim concrete and rebar in the areas where the grass

met the grade beam in order to allow grass to grow in that area. See Pl.’s Ex. 123 at 4; Day 2 A.M.

Tr. at 56:4–58:16.

54.    From July 3, 2012, to April 23, 2013, the USACE issued numerous unilateral change orders

and constructive change directives to Hirani, who in turn subcontracted the work to ACC to

complete these change orders. See Pl.’s Ex. 40 at 34–69.

55.    On April 5, 2013, the USACE issued Change Order BL to Hirani, providing a non-

compensable time extension of 180 calendar days, thus extending the Project completion date from

January 29, 2012, to July 27, 2012. See Pl.’s Ex. 40 at 61–62. According to Change Order BL,

the USACE authorized the additional time due to “120 days [ ] for concurrent delay and 60 days .

. . for work stoppage due to weather impacts.” Id. at 62. The USACE identified the “concurrent

delay” as related to, among other things, “East and West grade beam adjustment” and “Additional

west side grading.”

OPTION 1 AND THE GEOMETRY “BUST”

56.    Section 02 00 00 of the USACE’s Construction Specifications relates to the stone cladding

and coping to be affixed to the permanent levee walls and details requirements for its completion.

See Pl.’s Ex. 12, § 27 at 215–25.

57.    On December 17, 2010, the USACE issued a modification exercising Option 1 in the

amount of $641,369.00, requiring Hirani to install the stone cladding and coping on the permanent

levee walls. This modification increased the Prime Contract from $3,833,097.00 to $4,474,466.00.

See Pl.’s Ex. 26.




                                                18
58.       On August 12, 2010, the USACE issued Amendment No. 0003, modifying the Site Stone

Cladding Specification. The Amendment specified American Granite, as supplied and fabricated

by Champlain Stone Ltd., as the source of cladding and coping stones for the levee wall façade

and the granite pavers on the exposed grade beam surface. Amendment No. 0003 further provides

that “only the stone from Champlain Stone, Ltd. has been presented and approved by the

Commission of Fine Arts, the National Capitol Planning Committee, and the National Park

Service.”     According to the Amendment, if Hirani were to select a stone from any other

manufacturer, Hirani would be responsible for obtaining approval from those organizations. Pl.’s

Ex. 15.

59.       The USACE and National Park Service wanted the color of the stone cladding on the levee

walls to match the color of the stone on the Lockkeeper’s House, a historical building on the corner

of 17th Street and Constitution Avenue. Day 3 A.M. Tr. at 21:21–23:19.

60.       On December 14, 2011, ACC executed Change Order No. 001 to the Subcontract in the

amount of $613,650.00, in which Hirani awarded Option 1 to ACC to complete the stone cladding

and coping work on the permanent levee walls. Pl.’s Ex. 79.

61.       On or around May 18, 2011, ACC received sample American Granite stones, supplied by

Champlain, the only supplier contractually permitted to provide stone for the Project. ACC visited

the Lockkeeper’s House to compare the stone samples with the existing stone façade on the

Lockkeeper’s House and found they did not match. See Pl.’s Ex. 31 at 139–40.

62.       The following year, on or around April 5, 2012, ACC learned that there was a geometry

“bust” problem with Option 1, meaning that the stone cladding could not be installed as required

by the Project plans because the structural drawings and the architectural drawings were

misaligned. See Pl.’s Ex. 87; Day 3 A.M. Tr. at 57:7–58:3.



                                                19
63.      On July 27, 2012, employees of Janeiro, Inc., ACC’s stone installation subcontractor,

visited the Project site to build mockups of a sample stone alternative to Champlain stones on a

portion of the levee wall for review by the Commission of Fine Arts, the National Capitol Planning

Committee, and the National Park Service. Pl.’s Ex. 1 at 59; see Day 2 P.M. Tr. at 51:4–51:14.

64.      Around the first week of November 2012, the USACE, Champlain Stone Ltd., Janeiro,

ACC, and OLIN, the landscaping and stone architect on the Project, held a meeting. During the

meeting, Champlain’s representatives explained that they could not provide stones in the strength,

sizes, and shapes required to complete Option 1. Day 3 A.M. Tr. at 18:7–18:24.

65.      Following this meeting, the USACE requested that Janeiro provide different stone samples

from different quarries that could be used in the Project. Id. at 21:21–23:19; see Pl.’s Ex. 1 at 69.

66.      Rick Janeiro suggested stones from a quarry in Carderock, Maryland, for the cladding and

a granite stone called Jet Mist Granite from a quarry in Le Croix, Canada, for the pavers and

coping. Day 3 A.M. Tr. at 23:16–24:3.

67.      In early 2013, Rick Janeiro, Ed Hollander of ACC, OLIN, the National Park Service, and

the USACE visited the Carderock quarry. Pl.’s Ex. 170; Day 3 A.M. Tr. at 26:17–26:19.

Ed Hollander co-founded ACC with Ms. Stephen and served as ACC’s field superintendent for

the Project. Mr. Hollander died before the start of trial.

68.      In early 2013, Janeiro received a notice of approval for the two types of stone chosen:

Carderock stone and Jet Mist Granite. Day 3 A.M. Tr. at 25:3–25:6; Day 5 A.M. Tr. at 88:7–

88:11.

69.      On March 18, 2013, Hirani’s on-site field superintendent submitted RFI No. 122 requesting

confirmation of the following changes to the Site Stone Cladding Specification:




                                                 20
               Change stone veneer thickness from 3” to 2”.
               Jet Mist Copings with rock pitch / split face and thermal top and
               ends
               Jet Mist wall end stones with end face thermal finish and wall face
               rock pitch / split face
               Jet Mist typical veneer for dark shaded stone as viewed on contract
               drawings L-044 and L-045
               Joint widths are to be 3/8” plus / minus tolerances
               Variance in the stone surface will be allowed to the extent exhibited
               in the sample reviewed on site.
               Tolerances listed in the specifications will be modified / exceeded
               due to the nature of the stone selected.
               Thermal finish on veneer stone will be applied in accordance with
               Olin’s review comments on submittal 27-7.
               Due to the nature of the split faced stone the design intent of having
               a 1/8” reveal on the brass expansion joints becomes impossible.
               Please confirm that some deviation from this expected and
               acceptable.

Pl.’s Ex. 43 at 262.

70.    On March 21, 2013, Robert Franklin of the USACE responded to RFI No. 122, and

approved the use of two-inch thick stone cladding and a joint width of three-eighths inch. Pl.’s

Ex. 43 at 262; see Day 5 A.M. Tr. at 87:4–87:18.

71.    The record does not support Defendants’ assertion that the USACE resolved the stone

geometry issue—also known as the “geometry bust”—as early as August 14, 2012. See Defs.’

Rebuttal at ¶ 212.

72.    Instead, the record supports ACC’s contention that the “geometry bust” issue was not

resolved by the USACE until March 21, 2013. Compare Pl.’s Ex. 105 (ACC letter dated August

17, 2012, noting that ACC is “still waiting on many decisions and resolutions . . . associated with

[the geometry bust]”), with Pl.’s Ex. 43 at 262 (March 21, 2013, USACE response to RFI No. 122,

memorializing that teleconferences held on March 11 and 14 to “address [c]ontractor stone issues”

and that on March 19, 2013, “[Hirani was] told via email and phone call that [the comments in

RFI] are acceptable”).

                                                21
73.    Until March 21, 2013, when the USACE responded to RFI No. 122, ACC could not cut the

stone for cladding and coping in order to move forward on Option 1.

74.    On March 26, 2013, Ed Hollander prepared a work plan for moving forward on Option 1

of the Project. Day 5 A.M. Tr. at 89:21–92:6; Pl.’s Ex. 139. This proposed Option 1 schedule

estimated the stonework would be completed by the end of July 2013. Pl.’s Ex. 139 at 5.

FEBRUARY 2013 THROUGH MAY 2013 ON THE PROJECT

75.    On or about February 14, 2013, the USACE sent Hirani a Cure Notice letter, requesting

that Hirani show cause why the Prime Contract should not be terminated. Hirani responded to the

USACE’s letter by letter dated February 25, 2013. See Pl.’s Ex. 131.

76.    On February 19, 2013, David Lussier, Hirani’s newly installed on-site field representative,

began working at the Project site. See Pl.’s Ex. 31 at 577; Pl.’s Ex. 30 at 813.

77.    From February 24, 2013, through April 16, 2013, the National Cherry Blossom Festival

and its subsequent two-day cleanup took place on the National Mall. Pl.’s Ex. 31 at 611–912.

78.    As a result of the Cherry Blossom Festival, ACC was not able to perform work on the

Project on and under 17th Street, as the road was required to stay open during the Festival. E.g.,

id. at 612 (Hollander noting that ACC is “[n]ot allowed back into 17th Street to complete remaining

work until after April 15, 2013”); see also Day 4 P.M. Tr. at 10:21–11:21 (Vogt explaining that

during Cherry Blossom Festival, “[t]here was limited work allowed” and “no road work” could be

performed on the Project because “the road has to remain open during Cherry Blossom time”).

79.    On March 4, 2013, the USACE paid Colonial, as surety, $285,947.84 for work performed

by ACC between November 21, 2012, and January 4, 2013, as reflected in ACC’s Payment




                                                22
Requisition No. 19. ACC actually had requested $368,107.46 under Payment Requisition No. 19,

but the USACE withheld $100,000 from its payment. 4

80.     By letter dated March 12, 2013, ACC informed Hirani that it would be out of productive

work on the Project within three days due to Plaintiff and Hirani’s inability to agree on the scope

and price of the additional work Hirani had demanded.

81.     By letter dated March 29, 2013, ACC sent Hirani a payment demand on Payment

Requisition No. 19 for work ACC had completed at the site between November 21, 2012, and

February 20, 2013, in the amount of $373,189.93. See Pl.’s Ex. 141. According to the letter,

Hirani had last paid ACC on or about December 5, 2012, for work completed through November

20, 2012. Id. at 1. ACC complained that the amount due on Payment Requisition No. 19 remained

outstanding, even though ACC understood that the USACE had approved the work for that time

period and remitted payment. Id. at 3–4.

82.     On April 2, 2013, a key meeting with all principals—Hirani, ACC, and Colonial—took

place at National Park Services headquarters to discuss “open change orders, pay estimates not

being paid, and moving forward on work and payments.” See Pl.’s Ex. 31 at 828–29.

83.     On April 10, 2013, David Lussier, Hirani’s on-site Project Manager, quit. Pl.’s Ex. 31 at

884–885, 920; Day 2 A.M. Tr. at 120:21-22.

84.     Following David Lussier’s resignation from the Project, Hirani directed ACC to shut down

field operations effective Monday, April 15, 2013, because the USACE and National Park Service




4
 The court sees no need to resolve the parties’ dispute as to the reason for the withheld $100,000. Defendants do not
claim that the $100,000 was withheld because that amount reflects either non-compensable work or the cost of
materials not contemplated by the Subcontract. Rather, they assert that the sum was retained by the USACE, as is
common for owners to do as a project nears completion. Therefore, there is no dispute as to whether the Miller Act
allows ACC to seek recovery of that sum.

                                                        23
would not allow field operations at the Project to continue absent competent field supervision

provided by Hirani. See Pl.’s Ex. 146; Pl.’s Ex. 30 at 897.

85.    The Project site was shut down from April 15, 2013, through April 22, 2013, due to Hirani’s

failure to provide competent field supervision. Pl.’s Ex. 30 at 897–902; see Pl.’s Ex. 147.

86.    On April 22, 2013, Eric Hirani called Ed Hollander to tell him Hirani had hired an on-site

supervisor and asked Hollander to provide an estimated start date so that the new on-site manager

could be present. Hollander thereafter began calling crew members to restart the Project the next

morning. Pl.’s Ex. 31 at 917–18.

87.    Work on the Project resumed on April 23, 2013, when Rob Kraus began his first day as

Hirani’s new Field Representative and the ACC crew returned to the Project site. See Pl.’s Ex.

147; Pl.’s Ex. 31 at 919–20.

88.    The record evidence does not support Defendants’ assertion that ACC unilaterally shut

down the Project site from April 15 through April 22, 2013. In letters to Hirani dated April 14,

2013, and April 22, 2013, Ed Hollander memorialized phone calls received from Eric Hirani

informing ACC that the USACE and National Park Service would not allow work on the Project

site to continue without a Hirani Field Representative present. See Pl.’s Exs. 146, 147. Copies of

these letters were sent to Robert Franklin of the USACE and Wayne Nunziata of Colonial. See id.

The substance of these letters is corroborated by Ed Hollander’s Daily Reports, see Pl.’s Ex. 31 at

909–18, which reflect that no work was allowed on the Project site due to Hirani’s failure to have

approved supervision personnel on-site, id. Likewise, Ms. Stephen, as Hirani’s on-site Contractor

Quality Control Assistant, inputted daily Hirani’s Quality Control Reports during this time period

reflecting that there were “[n]o trades on site due to project shutdown until such time that a Hirani




                                                 24
project superintendent is on site full time.” See Pl.’s Ex. 30 at 897–902. Thus, Hirani’s own

records confirm ACC stopped work as ordered by the USACE.

89.        Defendants have not offered any evidence that Hirani, Colonial, or the USACE rejected

Hollander’s characterization of the shutdown, orally or in writing, in response to Hollander’s

letters of April 14 or April 22, 2013, or the Quality Control Reports submitted by Ms. Stephen, to

which Hirani and the USACE had access. If ACC in fact had shut down the work unilaterally, the

court would expect there to be some contemporaneous documentary evidence to support that

position. But Defendants presented no such records. The absence of such records in a heavily

documented construction project leads the court to find that the USACE ordered the mid-April

shutdown.

90.        From April 24 through April 26, 2013, ACC excavated and cut the areas between the Naval

Brass Channel and the 17th Street curb line on the east side. ACC began to cut the grade beam in

these excavated areas from nine-feet wide to seven-feet wide, as required by Change Order BJ.

Day 2 A.M. Tr. at 58:21–58:22; see Pl.’s Ex. 1 at 84; Pl.’s Ex. 31 at 921–26.

91.        On April 26, 2013, ACC backfilled two of the excavated grass areas adjacent to the 17th

Street curb line on the east side and covered the remaining areas with lumber and plywood for

backfilling the following week. Pl.’s Ex. 172 at 1; Pl.’s Ex. 31 at 925–26.

92.        By letter dated April 26, 2013, the USACE terminated the Prime Contract with Hirani for

default on the Project. Pl.’s Ex. 150. 5

93.        In the termination letter, USACE explained that it had “little confidence” that Hirani would

finish the Project because Hirani had not: (1) taken necessary steps to improve its progress;

(2) critical work onsite had ceased since March 22, 2013 “due to subcontractor management and



5
    The court makes no finding of fact as to when Hirani or Colonial received notice of this termination letter.

                                                            25
nonpayment issues;” (3) Hirani “had not submitted periodic progress schedules;” and (4) Hirani

failed to “fulfill commitments to meet milestone deadlines necessary for completing the remainder

of the [Prime] Contract.” Pl.’s Ex. 150.

94.    The USACE further stated that Hirani’s performance on the Project had been “beset with

scheduling problems, a failure to pay subcontractors in violation of the Contract, and a

demonstrated lack of diligence.” Id.

95.    The court finds that the USACE terminated Hirani because Hirani failed to submit periodic

progress schedules in accordance with its obligations under the Prime Contract and the USACE

Specifications incorporated therein; Hirani failed to timely pay its subcontractors, including ACC;

Hirani failed to provide on-site management on the Project; and Hirani failed to diligently manage

and supervise the Project.

96.    The court’s conclusion that Hirani was at fault for its own termination is bolstered by record

evidence that, as of Hirani’s termination on April 26, 2013, Hirani had received three interim

unsatisfactory performance evaluations, a cure notice (sent merely days after Hirani entered into

the Subcontract with ACC), and a show cause notice from the USACE. See Pl.’s Ex. 150. Notably,

the April 8, 2011, Cure Notice identified many of the same deficiencies in Hirani’s performance

at that early stage that would eventually lead to Hirani’s termination, including Hirani’s failure to

secure adequate Project Management staff to supervise the schedule and subcontractors as well as

Hirani’s late start on the Project. See Pl.’s Ex. 56.

97.    ACC crew did not work on the Project site on Saturday, April 27 or Sunday, April 28, and

heavy rains prevented work on Monday, April 29 and Tuesday, April 30, 2013. See Pl.’s Ex. 30

at 911–12; Pl.’s Ex. 31 at 927–30; Day 2 A.M. Tr. at 61:13–61:20.




                                                  26
 98.    On April 30, 2013, Ed Hollander learned that Hirani had been terminated by the USACE.

See Pl.’s Ex. 31 at 929–30.

 99.    By letter dated April 30, 2013, Mr. Hirani rejected USACE’s Termination for Default and

requested a meeting with the USACE so that the termination could be reversed. Pl.’s Ex. 151.

100.    On May 1, 2013, Eric Hirani called Ed Hollander and told him that Hirani was fighting the

termination and that ACC was not to stop work at the Project site. See Pl.’s Ex. 31 at 931–932.

101.    On May 1, 2013, Ed Hollander detailed the following in his daily report:

               WORK PERFORMED TODAY: All crew members in today;
               Today, clean up lumber and WWF fabric mesh up off of East Side
               of project; Backfill remaining East Side Grade Beam cutting hole
               along curb line at East Side of project; Remove that covering lumber
               and plywood and take to staging yard; Install temporary fence at
               construction entrance East Side at end of day; finish grass cutting
               and cleanup of any trash or debris at East Side from construction
               operations; . . . Cleanup West Side work area of any possible
               remaining minor construction trash from last week work; . . . Holes
               were getting backfilled; safety fences were going up, and cleanup at
               site was occurring by ACC; Heavy equipment maintenance and
               cleanup and greasing in afternoon.

Id. at 932.

102.    On May 1, 2013, ACC backfilled the excavated grass areas adjacent to the 17th Street curb

line on the east side. Day 2 A.M. Tr. at 58:21–58:23; Pl.’s Ex. 30 at 913–14; see Pl.’s Ex. 1 at 88;

compare Pl.’s Ex. 1 at 84 (April 26, 2013 photo), with Pl.’s Ex. 1 at 86–89 (May 2, 2013 photos).

103.    On May 2, 2013, Hirani conducted a walk-through of the Project site with the USACE.

Pl.’s Ex. 30 at 915; see also Pl.’s Ex. 1 at 86–89.

104.    On May 2, 2013, Eric Hirani sent Ms. Stephen an email informing her to cease all work on

the Project immediately, due to Hirani’s termination. Pl.’s Ex. 152.




                                                 27
105.   Ms. Stephen continued entering daily reports into the RMS quality control system in her

role as Hirani’s on-site Quality Control System Administrator until May 6, 2013. See Day 2 A.M.

Tr. at 77:25–78:4.

COLONIAL’S COMPLETION OF THE PROJECT

106.   After Hirani’s termination, the USACE made a demand upon Colonial to satisfy its

obligations under the Performance Bond. Day 4 A.M. Tr. at 17:1–17:3.

107.   To finish the Project, Colonial retained the consulting firm Loewke Brill in June 2013.

Day 4 A.M. Tr. at 18:22–18:23.

108.   Michael Vogt is vice president of Loewke Brill, and in his role on the Project, Mr. Vogt

met with Robert Franklin and John Devine of the USACE in July 2013 to discuss Hirani’s

termination, the status of the Project, and next steps to complete the Project. Day 4 A.M. Tr. at

20:20–21:16.

109.   Loewke Brill subsequently considered the proposals of multiple potential contractors

seeking to complete the Project, including proposals from ACC, Akima Construction, and Fort

Myer Construction. Day 4 A.M. Tr. at 25:11–25:16, 26:16–26:23, 28:17–29:20.

110.   As of September 30, 2013, the final Prime Contract price was $4,632,715.23. Defs.’ Ex.

90, at 2. Twenty-seven modifications had been issued totaling $799,618.23, added to the original

Prime Contract price of $3,833,097.00. Id. At that point, Hirani had earned but had not been paid

$161,071.75. The contract balance was therefore $1,257,442.06. See id.

111.   On September 30, 2013, the USACE and Colonial entered into a Surety Takeover

Agreement. See id. at 2.

112.   In the Surety Takeover Agreement, the USACE agreed to pay Colonial $1,257,442.06. See

id.



                                               28
113.   Paragraph 10 of the Surety Takeover Agreement provides that the USACE would continue

to assess liquidated damages at the rate of $1,379.00 for each calendar day of unexcused delay

until performance is substantially complete. Id. at 4. As of April 26, 2013—the date of Hirani’s

termination—the official contract completion date, including excused delays, was July 27, 2012.

Id.

114.   The USACE ultimately never assessed liquidated damages against the contract balance.

Day 4 P.M. Tr. at 75:6–75:7.

115.   On September 30, 2013, Colonial entered into a subcontract with Akima Construction

Services, LLC, in the amount of $1,326,244.00.           See Defs.’ Ex. 91 [hereinafter Akima

Subcontract].

116.   Akima agreed to furnish all labor, materials, services, and equipment to complete the

agreed-upon scope of work. Defs.’ Ex. 91, Ex. A.

117.   Akima began performance of the Akima Subcontract on October 1, 2013. Defs.’ Ex. 92.

118.   Akima’s scope of work included, among other things: excavating for grade beam, installing

flowable fill, rebarring cage for the bank, installing cobblestone pavers in the roadway, digging

holes and planting trees, removing construction fencing, and finalizing site cleanup. Defs.’ Ex.

91, Ex. A.

119.   Akima also performed the remainder of work left by ACC to complete Change Order BJ.

See Defs.’ Ex. 98 (line item 80-92).

120.   To complete Option 1, Loewke Brill retained a fabricator called Structural Stone to

fabricate the stone from the Carderock quarry. Defs.’ Ex. 132.

121.   To complete Option 1, Loewke Brill retained a stone installer called Lorton Stone, LLC,

to install the wall cladding, coping stone, and pavers. See Defs.’ Ex. 111.



                                                29
FINDINGS AS TO WITNESS CREDIBILTY

122.   Irene Stephen is a co-founder and owner of ACC and a cost accounting consultant for heavy

and highway civil construction contractors. She testified as both a fact witness and a cost

accounting expert in the heavy and highway civil construction contracting industry.

123.   Ms. Stephen has been working as a cost accountant in the heavy and highway civil

construction contracting industry for 45 years. See Pl.’s Ex. 166.1. Ms. Stephen is certified by

the USACE in Construction Quality Management for Contractors. See Pl.’s Ex. 166.2.

124.   Ms. Stephen worked as Hirani’s “Alternate Contractor Quality Control System Manager”

and “Quality Control System Administrator” for the Project. In that full-time role, Ms. Stephen

was expected to maintain a presence at the Project site; to assist with the scheduling, reviewing,

checking, and certifying of all submittals and shop drawings; and to draft and submit daily logs

memorializing the status of the Project site, known as “Contractors Daily Quality Control

Reports,” or QCRs. See Pl.’s Ex. 77 at 16–18; see also Pl.’s Ex. 30.

125.   As a fact witness, Ms. Stephen testified about her personal knowledge and observations as

Hirani’s on-site Contractor Quality Control Administrator from the time Hirani and ACC executed

the Subcontract to the end of ACC’s presence on the Project site.

126.   The court found Ms. Stephen’s testimony as a fact witness to be credible. Ms. Stephen

possessed a strong memory and excellent recall of the events, which she witnessed first-hand as a

representative of Hirani on the Project. Ms. Stephen is the only witness called during trial who

was present on the Project site nearly every day, and the court found her testimony regarding

progress on the Project site to be reliable and helpful. To the extent that Ms. Stephen’s testimony

regarding the state of affairs on the Project may be biased by her interest in the outcome of the




                                                30
litigation, the court is assured that the testimony of Ms. Stephen it relies on is also substantiated

by record evidence admitted at trial and other witness testimony.

127.    As an expert witness, Ms. Stephen offered her opinion on the reasonable markup for the

highway and heavy construction industry and project overhead in the District of Columbia area

from 2011 to 2013. Ms. Stephen further offered her opinion as to the reasonable value of

Ed Hollander’s services as ACC’s on-site supervising Project Manager. Day 1 A.M. Tr. at 52:23–

53:3.

128.    The court found Ms. Stephen’s testimony as an expert witness to be credible.

129.    Jitendra Hirani is the president of Hirani. Mr. Hirani testified as a fact witness.

130.    At trial, Mr. Hirani testified as to his personal knowledge and observations from the time

Hirani first bid on the Project until Hirani’s termination by the USACE.

131.    Generally speaking, the court found Mr. Hirani not to be credible or helpful, certainly

relative to Ms. Stephen. Mr. Hirani was defensive and hostile in answering questions posed by

ACC’s counsel on direct examination, and often responded that he could not recall or did not

remember key events central to the dispute between Hirani and ACC and to Hirani’s termination

from the Project. Mr. Hirani spent little time at the Project site, and there was little documentary

evidence presented to corroborate Mr. Hirani’s version of events.

132.    Mr. Hirani testified that he personally asked ACC to submit scheduling information “50 to

100 times” and that, each time, ACC refused to submit the information upon demand, as required

by the Subcontract.

133.    The court does not credit Mr. Hirani’s testimony with regard to ACC’s role in the

scheduling of the Project. Mr. Hirani was unable to articulate how and when he asked ACC for

these scheduling updates, nor how and when ACC rejected or ignored his requests. Moreover,



                                                 31
Mr. Hirani’s assertion that he unsuccessfully asked ACC for scheduling information “50 to 100

times” is unsupported by any record evidence, such as correspondence or emails with ACC. The

first such correspondence is dated February 18, 2013, almost two years after the parties entered

into the Subcontract.      The lack of such records, when the Project otherwise was heavily

documented, leads the court to find that ACC did not refuse to submit scheduling information as

claimed by Mr. Hirani.

134.    Michael Vogt is an executive vice president of the construction consulting firm, Loewke

Brill Consulting Group. Mr. Vogt became involved in the Project after Hirani was terminated by

the USACE, at which time Colonial hired Loewke Brill to assist in the Project’s completion in or

around June 2013. Day 5 A.M. Tr. at 11:22-12:8, 16:18–18:15. On the Project, Mr. Vogt served

as the Quality Control System Manager for Colonial. Day 5 A.M. Tr. at 81:21–82:12. Mr. Vogt

testified as a fact witness.

135.    As a fact witness, Mr. Vogt testified about his personal knowledge and observations about

the completion of the Project following Hirani’s termination, including the status of the Project

after ACC left the site, and the hiring of Akima Construction and other subcontractors to complete

the Project.

136.    The court found Mr. Vogt to be a credible witness. Mr. Vogt was a forthright and honest

witness, who gave detailed testimony regarding the events he witnessed firsthand after Hirani’s

termination until Colonial’s eventual completion of the Project.

137.    Fred Ricky Janeiro is the president of Roubin & Janeiro, d/b/a Janeiro, Inc. Janeiro is a

local stone contractor that furnishes and installs natural stones.




                                                  32
138.   The court found Mr. Janeiro to be a credible witness. Mr. Janeiro testified honestly and

helpfully regarding ACC’s work on Option 1, Janeiro’s involvement in locating suitable stones for

cladding and coping of the permanent levee walls, and resolution of the geometry “bust.”

139.   Robert Franklin is a project engineer for the USACE who was tasked with management

and oversight of the Project. Day 5 A.M. Tr. at 24:1–24:22. Mr. Franklin testified as a fact witness.

140.   As a fact witness, Mr. Franklin specifically testified about progress (or lack thereof) on the

Project from January through April 2013, as well as the decision to terminate Hirani. Mr. Franklin

asserted that Hirani was terminated in part because ACC failed to progress the work on the Project

beginning in mid-March 2013 due to disputes between ACC and Hirani regarding payment.

Mr. Franklin also asserted that the USACE did not prohibit ACC and Hirani from continuing field

operations at the Project due to inadequate on-site supervision by Hirani.

141.   Mr. Franklin testified to the best of recollection, but he had difficulty accurately recalling

details of the Project during the critical time period of mid-March 2013 through early May 2013.

The record evidence refutes key portions of Mr. Franklin’s testimony, most notably his testimony

that (1) the USACE had not ordered ACC to stop work in April 2013 because of the absence of a

Hirani on-site Project manager and (2) ACC had essentially ceased doing productive work during

this period without cause. The court therefore does not credit Mr. Franklin’s testimony to the

extent it was inconsistent with record evidence.

142.   Although he did not testify, the court accepted for their truth statements made by Eric

Hirani, as reflected in correspondence prepared by ACC or in ACC’s Daily Reports. See supra

¶¶ 86, 88, 100, 104. As discussed below, ACC’s records are admissible under the business records

exception, see Fed. R. Evid. 803(6), and Eric Hirani’s statements contained therein are not hearsay

and are admissible under Federal Rules of Evidence 801(d)(2)(C) and (D).



                                                   33
DOCUMENTS RELIED ON BY THE COURT

143.   In making its findings of fact, the court has relied on the contemporaneous photos

Ms. Stephen took of the Project site. See Pl.’s Ex. 1. According to Ms. Stephen, taking such

photos was a regular practice of hers on construction jobsites, and she took photos of the Project

site for ACC. See Day 2 A.M. at 43:18–44:7. The parties stipulated during trial that the dates

superimposed on these photographs in yellow text derive from metadata within the photo file, and

are therefore assumed to be correct. Day 2 P.M. Tr. at 32:11–33:9.

144.   In making its findings of fact, the court has relied on Ed Hollander’s Daily Reports

documenting his activities as ACC’s Field Superintendent on the Project and all work activities on

the Project. See Pl.’s Ex. 31. The Daily Reports are admissible as business records of ACC. See

Fed. R. Evid. 803(6); see also Equity Lifestyle Props., Inc. v. Fla Mowing & Landscape Serv., Inc.,

556 F.3d 1232, 1243–44 (11th Cir. 2009) (holding that invoices based upon a foreman’s daily

reports were admissible as business records); Just Wood Indus., Inc. v. Centex Const. Co., 188

F.3d 502, No. 98-1855, 1999 WL 606859, at *6 (4th Cir. Aug. 12, 1999) (holding that

subcontractor’s daily log book met the business records exception); Matador Drilling Co. v. Post,

662 F.2d 1190, 1199 (5th Cir. 1981) (holding that drilling company’s daily reports were admissible

under business records exception); cf. United States v. Bess, 75 M.J. 70, 74 (C.A.A.F. 2016)

(holding that daily muster reports qualified as admissible business records). These Daily Reports

were “made at or near the time by” Mr. Hollander, someone with knowledge; the reports were

“kept in the course of a regularly conducted activity of a business”; making these reports was “a

regular practice” of that business activity; and the court has not been shown that these reports were

prepared in such circumstances as to suggest a lack of trustworthiness. See id. at 73–74; Fed. R.

Evid. 803(6). Although Mr. Hollander is deceased and unavailable to testify as to the accuracy of



                                                 34
these reports, the court finds the Daily Reports to be a reliable recounting of events as they

occurred. Additionally, the court has gone to great lengths to substantiate information it relied on

within these Daily Reports with other record evidence and witness testimony.

145.   In making its findings of fact, the court has relied on Hirani’s daily QCRs. See Pl.’s Ex.

30. As the on-site quality control manager for Hirani, Ms. Stephen was required to draft and input

these reports into the Resident Management System (“RMS”) on a daily basis. These documents

are admissible as business records of Hirani. See Fed. R. Evid. 803(6). These daily reports were

“made at or near the time by” Ms. Stephen, someone with knowledge as a Hirani representative;

the reports were “kept in the course of a regularly conducted activity of a business”; making these

reports was “a regular practice” of that business activity; and the court has not been shown that

these reports were prepared in such circumstances as to suggest a lack of trustworthiness. See id.

Ms. Stephen verified the accuracy of the reports’ contents, and contemporaneously drafted these

daily reports in her regular practice as Hirani’s quality control representative. Additionally, the

QCRs are admissible as statements under Federal Rules of Evidence 801(d)(2)(C) and (D).

Ms. Stephen was Hirani’s representative on the Project at the time she completed the QCRs.

                                   CONCLUSIONS OF LAW

       Having set forth its findings of fact, the court turns now to make its conclusions of law.

For reasons that will become obvious, the court begins with Colonial’s counterclaims, before

turning to Plaintiff’s claim under the Miller Act and for breach of contract.

I.     COLONIAL’S COUNTERCLAIMS

       At the heart of each of Colonial’s counterclaims is the assertion that ACC’s failures to

perform breached the Subcontract, causing Colonial to incur substantial losses, costs, and expenses

in the amount of $723,049.14 to complete the Project. To prevail on a claim of breach of contract,



                                                35
a party must establish (1) a valid contract between the parties; (2) an obligation or duty arising out

of the contract; (3) a breach of that duty; and (4) damages caused by the breach. Window

Specialists, Inc., 106 F. Supp. 3d at 88; see also Tsintolas Realty Co. v. Mendez, 984 A.2d 181,

187 (D.C. 2009). 6 “A ‘breach’ is ‘an unjustified failure to perform all or any part of what is

promised in a contract entitling the injured party to damages.’” Window Specialists, Inc., 106

F. Supp. 3d at 88 (quoting Fowler v. ABA Co., 262 A.2d 344, 347 (D.C. 1970)). “A material

breach is one where the injured party received something substantially less or different from that

for which [it] bargained.” Id.

        Colonial contends that ACC breached the Subcontract in two material ways. First, Colonial

maintains that ACC failed to progress the work on the Project after ACC demanded, but did not

receive, payment for Requisition No. 19 from Hirani, in violation of Paragraph 14.1 of the

Subcontract. Second, Colonial claims that ACC breached Paragraph 2.2 of the Subcontract by

failing to provide Hirani with scheduling information. According to Colonial, these material

breaches of the Subcontract caused the USACE to terminate Hirani and to make a claim against

the Performance Bond issued by Colonial. The court considers each of these alleged breaches in

turn.

        A.       ACC Did Not Fail to Substantially Progress the Work

        Under Paragraph 14.1, ACC agreed that, in the event a “dispute, controversy[,] or question”

arose in the interpretation of the Subcontract, ACC would not stop or delay performance of the

Work or delivery of labor or material, but would continue to work “pending the determination of

such dispute or controversy.” Subcontract at Art. XIV, § 14.1. Relying on the testimony provided

by Robert Franklin, Colonial asserts that ACC violated Paragraph 14.1 of the Subcontract by


6
 As the court already has found, District of Columbia law governs the claims arising out of the Subcontract. See
Mem. Op. at 27 n.8.

                                                      36
delaying work on the Project because of its ongoing dispute with Hirani regarding non-payment

of Requisition 19. See Defs.’ FOF & COL at 35–37. According to Colonial, once engaged in this

payment dispute, ACC unilaterally suspended operations at the Project site after David Lussier’s

resignation and failed to perform any critical work to progress the project from March 2013

through Hirani’s termination on April 26, 2013.

       Based on the record evidence and the testimony of witnesses at trial, the court rejects

Colonial’s view of the final months of the Project. Because ACC did not unilaterally suspend

operations on the Project from April 15 through April 22, 2013, and because it progressed the

available work during the relevant period, the court concludes that ACC did not breach Paragraph

14.1 of the Subcontract.

               1.     The April 2013 Shutdown Was Not Unilateral

       Colonial’s claim that ACC unilaterally suspended operations on the Project following

David Lussier’s resignation lacks record support. The court has found that the Project site

shutdown from April 15 through April 22, 2013, was caused by Hirani’s failure to provide

competent field supervision as ordered by USACE. See supra ¶¶ 85–89. Contemporaneous

business records in the form of ACC’s Daily Reports, Hirani’s QCRs, and correspondence between

ACC and Hirani confirm that the shutdown was due to Hirani’s failure to provide on-site

supervision. Notably, one Daily Report reflects that Eric Hirani informed ACC that it could

resume work upon Hirani’s hiring of an on-site Project manager, and that he planned the on-site

manager’s start date to coincide with the first day that the work resumed. See Pl.’s Ex. 31 at 918.

Moreover, it is simply implausible that ACC could have unilaterally shut down the Project without

a single record documenting or protesting such a shut down. Had ACC acted as Colonial insists,

surely there would exist in the record at least one piece of paper from either Hirani, the USACE,



                                                37
or the National Park Service reflecting or objecting to ACC’s complete work stoppage. But there

is no such record.

       Accordingly, the court finds that ACC did not breach the Subcontract by unilaterally

shutting down the Project site.

               2.      ACC Progressed Work on the Project

       Relying predominately on Robert Franklin’s testimony, Colonial maintains that certain

critical path items were available to ACC to complete from mid-March 2013 until Hirani’s

termination, but that ACC did only meaningless work and willfully delayed progress on the Project

because of the payment dispute. This contention lacks sufficient evidentiary support.

       Mr. Franklin testified that the following “critical path” work was available to ACC, but not

performed, during the time period of mid-March 2013 through April 2013: (1) installing the stone

on the stem walls; (2) working on the grade beam sections between caissons 12 and 13, and

caissons 13 and 14; and (3) trimming the east-side grade beam pursuant to Modification BJ. See

Day 5 A.M. Tr. at 26:20–28:2, 36:18–37:7. Despite Mr. Franklin’s forthright demeanor at trial,

the court does not credit Mr. Franklin’s recollection about the work available to ACC during the

relevant time period because it is directly contradicted by record evidence. Each item identified

by Mr. Franklin as “available” to ACC after March 2013 was actually unavailable due to delays

and events beyond ACC’s control, or ACC actually performed the work.

       First, contrary to Mr. Franklin’s testimony, ACC could not even begin to cut the stone

required to complete Option 1 until March 21, 2013, when Mr. Franklin responded to RFI No. 122

and approved the use of two-inch thick stone cladding and a joint width of three-eighths inch. Pl.’s

Ex. 43 at 262. Critically, upon receiving this approval, on March 26, 2013, Ed Hollander submitted

to Hirani and the USACE, including Mr. Franklin, an “aggressive” schedule to move forward on



                                                38
Option 1, with a projected completion date at the end of July 2013. See Pl.’s Ex. 139. The schedule

contemplated mid-April as the earliest time for installing the stone—work that would be done by

Janeiro, not ACC—and that most of that work would occur after May 1. See id. Before May 1,

nearly all the stone cladding-related work was to be done off-site. See id. at 3 (showing design,

fabrication, and delivery work prior to May 1). Thus, there was little available stone work at the

Project site itself during the period that Mr. Franklin claimed ACC was not progressing the work.

       Second, from February 24, 2013, through April 16, 2013, the National Cherry Blossom

Festival prevented ACC from performing work in and on 17th Street—the precise location of the

grade beam supported by Caissons 12, 13, and 14. In other words, because ACC did not have

access to the roadway for seven weeks in the spring of 2013, ACC could not work on the grade

beam sections between caissons 12 and 13, and 13 and 14, as Mr. Franklin recalled.

       And finally, Mr. Franklin’s testimony that ACC did not perform the work required by

Change Order BJ, or “even begin to cut the grade beam” on the east side of 17th Street, was plainly

erroneous. See Day 5 A.M. Tr. at 28:5–28:16. Photographs show ACC excavated and cut the east

side grade beam on April 26, 2013, as required by Change Order BJ. Pl. Ex. 1 at 84–85. Moreover,

it is noteworthy that while Change Order BJ was issued to Hirani for $59,033, see Pl.’s Ex. 123 at

5, upon Akima’s completion of Change Order BJ, Akima was paid only $9,115.33, see Defs.’ Ex.

98 (line 87). Those different amounts make clear that ACC did the bulk of the work required to

complete Change Order BJ before Akima came on the scene.

        In summary, ACC’s final six weeks on the job was beset with delays and work stoppages

that were beyond ACC’s control. When ACC could work it did. Therefore, the court rejects

Colonial’s assertion that ACC failed to progress the Project in violation of the Subcontract’s

dispute clause.



                                                39
       B.      ACC Did Not Fail to Provide Scheduling Information

       Colonial next argues that ACC violated Paragraph 2.2 of the Subcontract by failing to

timely provide essential scheduling information in the form required by Hirani. Paragraph 2.2

required ACC, “if requested,” to “furnish all scheduling information in such form and detail as

required by [Hirani], to the satisfaction [of] [Hirani],” within seven days of the request.

Subcontract at § 2.2.

       As the court already has found, see supra ¶¶ 129–33, Mr. Hirani’s insistence that he

demanded scheduling information from ACC “50 to 100 times” is not credible. Mr. Hirani was

unable to articulate how and when he asked ACC for these scheduling updates, nor how and when

ACC rejected his requests. Additionally, there is no evidence that Hirani made any written demand

for scheduling information prior to Hirani’s letters to ACC dated February 18, 2013, and March

22, 2013. Not by coincidence, Hirani sent these letters only after the USACE issued Hirani a Cure

Notice on February 14 of that year. See Defs.’ Exs. 54, 62. Nor is there any evidence of any

demand by Hirani that ACC submit scheduling information in a form conducive to creating a

“Primavera” schedule—a type of scheduling software—as Colonial now suggests was required.

Cf. Defs.’ Rebuttal at 7 ¶ 56. This absence of evidence leads the court to conclude that ACC did

not repeatedly refuse Hirani’s scheduling demands, as Colonial maintains.

       The record evidence, in fact, supports the conclusion that ACC did regularly provide

scheduling information to Hirani, in the form of (1) outlines of work already performed on site,

see Pl.’s Ex. 29; and (2) three week “look-ahead” schedules, see Pl.’s Ex. 41; as well as (3) the

Option 1 schedule, Pl.’s Ex. 139. See also Defs.’ Rebuttal at 7 ¶ 56 (conceding receipt of the listed

scheduling information). Hirani’s QCRs also provided daily updates on the work’s progress. See

Pl.’s Ex. 30. Other than Mr. Hirani’s incredible testimony, Colonial presented no evidence of any



                                                 40
expressed dissatisfaction with these forms of scheduling information prior to February 2013. ACC

thus did not violate Paragraph 2.2 of the Subcontract by failing to provide scheduling information

to Hirani, as requested.

                                          *       *      *

       In light of the foregoing, the court concludes that Colonial has not established by a

preponderance of the evidence that ACC breached the Subcontract. Therefore, as to Colonial’s

counterclaims, the court finds in favor of ACC.

II.    ACC’S CLAIMS

       Having concluded that ACC did not breach the Subcontract, the court proceeds to ACC’s

Miller Act and breach of contract claims.

       A.      Miller Act Claim

       Count II of Plaintiff’s Second Amended Complaint seeks quantum meruit damages against

Colonial pursuant to the Miller Act for Colonial’s failure to pay ACC for the reasonable value of

labor, services, materials, and equipment that ACC furnished to the Project. Colonial primarily

advances a statute of limitations defense. It asserts that ACC is not entitled to recover any damages

under the Payment Bond, because ACC failed to bring its Miller Act claim within one year after

the last day on which ACC performed compensable work on the Project, as required under the Act.

       The Miller Act requires prime contractors, like Hirani, to obtain performance and payment

bonds, which guarantee performance of the contractor’s contractual duties and payment to

subcontractors and suppliers. 40 U.S.C. § 3131. The payment bond protects “all persons

supplying labor and material in carrying out the work provided for in the contract for the use of

each person,” including subcontractors. Id. § 3131(b)(2).




                                                  41
       To state a valid Miller Act claim, a subcontractor “must prove essentially two elements:

(1) it has ‘furnished labor or material in carrying out work provided for in a contract for which a

payment bond is furnished under section 3131’; and (2) it ‘has not been paid in full within 90

days.’” United States ex rel. Tenn. Valley Marble Holding Co. v. Grunley Constr., 433 F. Supp.

2d 104, 114 (D.D.C. 2006) (quoting 40 U.S.C. § 3131(b)(1)). Such a claim “must be brought no

later than one year after the day on which the last of the labor was performed or material was

supplied by the person bringing the action.” 40 U.S.C. § 3133(b)(4). “When the statute of

limitations begins to run on a claim under the Miller Act is necessarily a fact-intensive inquiry.”

See Mem. Op. at 16 (citing Ex parte Sw. Sur. Ins. Co., 247 U.S. 19, 20 (1918)). The contractor

bears the burden of proving that it performed compensable work within the limitations period. See

United States v. Cont’l Ins. Co., 776 F.2d 962, 964 (11th Cir. 1985).

       At the summary judgment stage, the court considered the various approaches that courts

around the country have used to determine what constitutes the “last of the labor [ ] performed or

material [ ] supplied” for purposes of the one-year limitations period. Mem. Op. at 16–18.

Evaluating these approaches in light of the Miller Act’s statutory text and broad remedial purpose,

the court concluded that, in order to avoid engaging in a “subjective line-drawing exercise,” it

would “simply look to the contract to determine for what tasks the parties agreed the subcontractor

would be compensated, then determine the last date on which the subcontractor supplied materials

or labor for one of those tasks.” Id. at 18; cf. Hensel Phelps Constr. Co. v. Cooper Carry Inc., 861

F.3d 267, 274 (D.C. Cir. 2017) (assessing whether breach of contract claim was time barred by

looking solely to the “plain terms” of the contract and explaining that “it is objective language, not

subjective intent, that guides our analysis”). Accordingly, to determine whether ACC brought a

timely Miller Act claim, the court must: “(1) identify the compensable tasks to which the parties



                                                 42
agreed, as set forth in the subcontract, and (2) determine the last date on which labor was performed

or materials were supplied for any one of those tasks.” Id. at 19. 7

         The court concludes that ACC timely filed its Miller Act claim on April 29, 2014. ACC last

performed compensable work under the Subcontract on May 1, 2013, when it (1) backfilled the

east side grade beam cutting hole along the curb line, as required by Change Order BJ, and

(2) supplied equipment to perform that work. See Pl.’s Ex. 123 at 4; see also Subcontract at Sch.

B., Pt. 14 (providing that ACC “shall provide all grading including all excavation & backfill as per

the plans and specifications”). 8 The court reaches this conclusion based on the following record

evidence: (1) photographs of the Project site depicting the east side grade beam area during the

relevant time period; (2) the testimony of Ms. Stephen; and (3) the daily reports of ACC and

Hirani, which recorded the events that took place on the Project site on May 1, 2013. This evidence

is described further below.

         Colonial contends that ACC’s backfilling of the east side grade beam area does not

constitute compensable work performed within the applicable limitations period for two reasons:

(1) no photographic evidence or eyewitness testimony establishes that ACC actually backfilled the

area on May 1, 2013; and (2) even if backfilling did occur on that date, backfilling of the east side

grade beam area is not compensable under the Subcontract or Change Order BJ. See Defs.’ FOF

& COL at 41–44; Defs.’ Rebuttal at 30–31 ¶ 8. The court finds neither of these arguments

convincing.



7
  ACC attempts to dissuade the court from applying this test, see Pl.’s FOF & COL at 61 ¶¶ 5–7, but the court declines
to revisit the law of the case.
8
 The court therefore need not consider Plaintiff’s alternative arguments that work performed by Ed Hollander on the
Project site between April 29, 2013, through May 1, 2013, as well as fencing work and cleanup performed by ACC
during that time period are compensable tasks under the Subcontract and thus occurred within the one-year limitations
period. See Pl.’s FOF & COL at 61–63 ¶¶ 8–10.


                                                         43
                 1.       On What Date Did ACC Backfill the East Side Grade Beam?

        As to its first argument, Colonial insists that ACC has not shown that compensable work

took place on May 1, 2013, because ACC failed to come forward with any photographic or

firsthand testimonial evidence that backfilling occurred on that date. The absence of such direct

evidence, Colonial says, means that such work could have been performed on April 27, 28, or 29

(outside the one-year limitations period) or even by someone other than ACC. See Defs.’ FOF &

COL at 48. 9

        The flaw in Colonial’s position is that ACC presented sufficient circumstantial evidence

to show that it backfilled the east side grade beam area on May 1, 2013. See Standardized Civil

Jury Instructions for the District of Columbia, § 2.03 (2018) (“The law says that both direct and

circumstantial evidence are acceptable as a means of proving a fact. The law does not favor one

form of evidence over another.”). Colonial points out that Ms. Stephen was not present on the

Project site on May 1, 2013, due to illness. But her observations as to what occurred on the days

before and after May 1, 2013, establish that backfilling took place on that date. See Day 2 A.M.

at 58:21–62:12. Ms. Stephen testified that she was at the Project site on April 26 when ACC

excavated the east side grade beam. She further knew that ACC had performed no work on the

site from April 27 through April 30, in part because of rain. See id. When she returned to the

Project site on May 2, Ms. Stephen stated, she observed that the east side grade beam area that

previously had been excavated was now backfilled, leading her to conclude that the work had been

performed the day before. See id. Though this testimony qualifies as circumstantial evidence, it




9
  Defendants also assert, based on Robert Franklin’s testimony, see Day 5 A.M. at 28:14–28:16, that ACC never even
started to cut the east side grade beam. Defs.’ FOF & COL at 42; Final Arg. Tr. at 54:7–54:8. As discussed, this
testimony was refuted by other record evidence.

                                                       44
nevertheless shows that ACC backfilled the east side grade beam area on May 1, 2013. See

Standardized Civil Jury Instructions, § 2.03 (overnight falling of snow example).

       Other evidence corroborates Ms. Stephen’s recollections. Photographs taken on April 26,

2013, depict the exposed east side grade beam area covered with plywood. See Pl.’s Ex. 172 at 1–

5. Then, photographs taken on May 2, 2013, depict the previously exposed areas now backfilled,

see id. at 6–9; see also Day 5 A.M. Tr. at 66:4–66:7 (Robert Franklin reviewing these photos and

testifying that the area portrayed on April 26, 2013, covered with plywood is the same area shown

backfilled on May 2, 2013). In between these two dates, both Hirani’s QCRs and ACC’s Daily

Reports confirm that ACC did no work from April 27 to April 30. See Pl.’s Ex. 30 at 910–912;

Pl.’s Ex. 31 at 925–30 (no reports for April 27 and April 28, which were a Saturday and Sunday;

reports for April 29 and April 30 indicate no work due to, at times, “heavy” rains). Therefore, the

backfilling must have occurred on the first day after April 26 that ACC worked on the Project site,

which was May 1, 2013.

       Though there is sufficient circumstantial evidence to support that finding, there is also

direct evidence. Hirani’s QCR for May 1, 2013, states under the heading “Activities in Progress”:

“Backfill east side grade beam.” Pl.’s Ex. 30 at 913. ACC’s Daily Report is to the same effect. It

memorializes that the east side grade beam areas, temporarily covered with plywood the previous

week, were backfilled on May 1: “Backfill remaining East Side Grade Beam cutting hole along

curb line at East Side of project; Remove that covering lumber and plywood and take to staging

yard.” Pl.’s Ex. 31 at 931–32. These records thus corroborate the logical inference the court draws

from Ms. Stephen’s testimony and the photographs taken on April 26 and May 2, 2013, namely,

that ACC backfilled the east side grade beam area on May 1, 2013.




                                                45
       Accordingly, based on the foregoing evidence, the court finds that ACC’s “last of the labor

[ ] performed,” 40 U.S.C. § 3133(b)(4), occurred on a date within the one-year limitations period.

               2.     Was Backfilling Compensable Work under the Subcontract?

       Next, Colonial argues that, even if backfilling occurred on May 1, 2013, ACC’s Miller Act

claim is still untimely. According to Colonial, because Change Order BJ does not expressly

identify “backfilling” as a covered task, see Pl.’s Ex. 123 at 4, it was not compensable work under

the Subcontract. Therefore, the day on which backfilling occurred under Change Order BJ, May

1, 2013, cannot qualify as the “last of the labor [ ] performed” for purposes of the one-year

limitations period.

       By pressing this argument, Colonial demands a literal reading of Change Order BJ that

defies common sense. Change Order BJ provides that:

               The contractor shall supply the labor, equipment, and materials to
               trim the concrete and the rebar from the east side grade beam in
               accordance with the drawings that were provided with the RFP. The
               top of the grade beam should be saw cut to create a clean cut line
               across the top. The rebar will be removed to a depth of 1” below the
               concrete surface. Non-shrink epoxy mortar will be used to repair
               the concrete surface

               The grade beam modification will only occur in the areas where the
               grass meets the grade beam. The grade beam will not be modified
               in the areas where the roadway and sidewalk meet the grade beam.

Pl.’s Ex. 123 at 4. To be sure, the text of Change Order BJ does not expressly address backfilling.

But common sense leads to the conclusion that, to complete Change Order BJ, ACC not only had

to excavate the ground and cut the grade beam, but it also had to backfill the open hole. Surely,

the USACE would not have accepted Change Order BJ as complete if ACC had walked away with

a gaping hole in the ground along the path of the grade beam, leaving the grade beam exposed. A

common sense reading of Change Order BJ therefore supports the conclusion that it encompassed



                                                46
backfilling as compensable work. Cf. Keepseagle v. Perdue, 856 F.3d 1039, 1047 (D.C. Cir. 2017)

(avoiding interpretation of settlement agreement that “would yield absurd results” (citing United

States v. Winstar Corp., 518 U.S. 839, 907 (1996)).

       In further support of its position, Colonial points to Change Order AY, which does

expressly refer to backfilling. But Change Order AY does not help Colonial’s cause. Change

Order AY, issued on the same date as Change Order BJ, pertains to electrical wiring for the west

side. See Pl.’s Ex. 123 at 3–4. Change Order AY requires the contractor to “provide all labor,

materials, and equipment to install the electrical wiring and conduit on the west side of 17th Street”

and further provides that “[t]he existing soil (minus organics and large rocks), will be used to

backfill the excavation.” See id. at 3. As the quoted text demonstrates, the USACE expressly

provided for backfilling in the context of Change Order AY because such backfilling was to be

performed in a specific manner using specific materials. By contrast, the absence of a similar

instruction in Change Order BJ does not mean that backfilling of the excavated east side grade

beam was outside the scope of the modification; rather, it suggests only that the USACE did not

require the contractor to use any particular material for that purpose. Colonial’s reliance on

Change Order AY is therefore unpersuasive.

       Finally, it is notable that, after Hirani’s termination, Akima received compensation for

backfilling as part of its work to complete cutting the east side grade beam. See Pl.’s Ex. 171 at 4,

8 (invoice from Akima subcontractor, Asher Construction, Inc., describing work of excavating

along the grade beam, coating the beam, “and backfill”). As Mr. Vogt testified, Akima’s scope of

work under the Akima Subcontract did not exceed ACC’s work under its Subcontract with Hirani.

See Day 4 A.M. at 77:13–77:16. Akima’s receipt of compensation for backfilling the excavated




                                                 47
east side grade beam area is further proof that backfilling was a compensable activity under Change

Order BJ.

                                          *      *       *

       In view of the foregoing, the court concludes that ACC has satisfactorily shown by a

preponderance of the evidence that it performed compensable work under the Subcontract within

one year of filing its Miller Act claim on April 29, 2014. Furthermore, ACC has established that

(1) it “furnished labor or material in carrying out work provided for in a contract for which payment

bond is furnished under section 3131” and (2) it was not “paid in full within 90 days.” 40 U.S.C.

3133. The court therefore will enter judgment in favor of ACC on its Miller Act claim.

       B.      Breach of Contract Claim

       Count I of the Second Amended Complaint seeks relief against Hirani for breach of

contract. ACC asserts that Hirani breached the Subcontract by: (a) failing to pay ACC for work

performed after November 21, 2012, through May 1, 2013; (b) failing to provide constant Project

on-site supervision; (c) failing to update the baseline schedule per contract requirements so as to

demonstrate the effect of the government’s responsibility for causes of delay; and/or (d) causing

the Prime Contract with the USACE to be terminated on April 26, 2013, due to Hirani’s failure to

provide updated schedules and failure to pay ACC for work performed for the last five months of

its subcontract performance. See Pl.’s FOF & COL at 64.

       For essentially the same reasons already discussed, the court finds in favor of ACC on its

breach of contract cause of action against Hirani. Put simply, Hirani breached the Subcontract by

refusing to pay ACC for the work that it performed, see supra ¶ 81, and Hirani had no valid

justification for doing so. The court therefore will enter judgment in favor of ACC on its breach

of contract claim against Hirani.



                                                 48
                                                  REMEDIES

         Having determined the outcome of ACC’s claims and Colonial’s counterclaims, the court

moves on to determine an appropriate damages award.

I.       QUANTUM MERUIT DAMAGES

         ACC asserts that its quantum meruit damages total is $2,172,285.30, as summarized below.

See Pl.’s Ex. 169. 10

                                         Subcontractors                             $786,069.82
                                       Rented Equipment                             $138,135.34
                                            Materials                               $605,752.90
                                    On-site ACC Field Labor                        $1,024,019.23
                           USACE Region II Ownership Equipment Rates                $540,250.12
                             Ed Hollander Supervision for 102 weeks                    $306,000
                                   35% Gross Markup Margin                         $1,190,079.59
                                 Loss of Fencing Salvage Value                        $43,046.95
                                 Janeiro’s Stone Shop Drawings                        $53,975.00
                                                                                          Credit
                                                                                 ($2,515,043.65)
                                                                                        TOTAL
                                                                                   $2,172,285.30



Defendants raise a host of objections to this damages calculation, to which the court now turns.

         A.       Equitable Adjustment Under the Federal Acquisition Regulations

         The court first considers Defendants’ assertion that ACC is barred from recovering more

than the original price of the Subcontract because ACC provided Hirani no notice of any request

for an equitable adjustment within 30 days of receipt of any change order. See Defs.’ FOF & COL

at 48.    Under what is known as the “Changes Clause,” federal regulations provide that a

“[c]ontractor must assert its right to an adjustment under this clause within 30 days from the date

of receipt of the written [change] order.” 48 C.F.R. § 52.243-1; see also Subcontract 4.1 (stating


10
   As ACC concedes, see Pl.’s Rebuttal at 32–33 ¶¶ 108-14, Defendants cannot be liable for any costs incurred prior
to the April 4, 2011, formation of the Subcontract. Some of the invoices and checks included in Plaintiff’s Exs. 32,
33, and 34, however, predate the Subcontract. Although ACC agrees that such costs are not recoverable, it is not clear
to the court whether they are part of the damages computation. Accordingly, ACC will have to sort through these
exhibits to exclude those non-recoverable items and provide the court with updated damages summaries.

                                                         49
that the “subcontractor acknowledges and agrees that it shall make no claim for extra or additional

compensation on account of any such work,” unless authorized in writing by Hirani). Because

ACC did not comply with the Changes Clause, Defendants maintain, ACC cannot recover costs

associated with any of the change orders. The court rejects this argument for two reasons.

           First, even if the Changes Clause is incorporated into the Subcontract 11—ACC does not

contend otherwise—the Clause on its face does not apply as between a prime contractor and

subcontractor. The Clause provides that a “Contractor” must assert its right of adjustment within

30 days after receipt of a change order or other written notice by “submitting to the Contracting

Officer a written statement describing the general nature and amount of proposal, unless this period

is extended by the Government.” 48 C.F.R. § 52.243-4(e). The references in the regulation to

“Contractor,” “Contracting Officer,” and “Government” make clear that the Changes Clause

concerns a change to the prime contract, that is, the agreement the between the prime contractor

and the United States. It does not impose any notice requirements on a subcontractor of the prime

contractor.

           The very case that Defendants rely upon, U.S. ex rel. Sequoia Electric, LLC v. Guarantee

Co. of N.A., Case No. 2:14-cv-2045 JCM (VCF), 2018 WL 1320042 (D. Nev. March 14, 2018), is

consistent with this interpretation. There, the court held the subcontractor could not obtain an

equitable adjustment because it had failed to make a timely request to the prime contractor within

10 days, as required under the subcontract. Id. at *3. The court observed that the 10-day period

was included in the subcontract to allow enough time for the prime contractor to submit its right

of adjustment to the government within 30 days to the government, as required under the Changes

Clause. See id. at *3 & n.2; see also U.S. ex rel. Duncan Pipeline, Inc. v. Walbridge Aldinger Co.,



11
     The court makes no legal determination as to whether the Subcontract incorporates the Changes Clauses.

                                                          50
No. CV411-092, 2013 WL 1338392, at *12–13 (S.D. Ga. Mar. 29, 2013) (similarly interpreting a

14-day notice obligation contained in a subcontract “so that [the prime contractor] could then

satisfy any obligations it may have had with the Corps”); cf. Conner Bros. Const. Co. v. United

States, 65 Fed. Cl. 657, 670 (2005) (“The spirit and purpose of an equitable adjustment, such as

that sought by plaintiff here, is to benefit the contractor and make it whole for changes ordered by

the government.”). Thus, Sequoia Electric’s discussion of the subcontractor’s obligations refers

only to the notice requirement of the subcontract, not the Changes Clause. Defendants cite no

authority for the proposition that the Changes Clause extends to a subcontractor like ACC.

       Second, even if the Changes Clause applies as between Hirani and ACC, Defendants have

shown no prejudice from the purported absence of notice. Although the regulation contains a time

limit for providing notice, “[w]ritten notice as to constructive changes must be supplied by the

contractor before such time that the Government would suffer if not apprised of the facts.” K-Con

Bldg. Sys., Inc. v. United States, 100 Fed. Cl. 8, 30 (2011) (internal quotation marks and citation

omitted). Thus, “[i]f the contracting officials have knowledge of the facts or problems that form

the basis of a claim and are able to perform necessary fact-finding and decisionmaking, the

Government is not prejudiced by the contractor’s failure to submit a precise claim at the time a

constructive change occurs.” Id. (internal quotation marks and citation omitted). Here, Defendants

do not dispute (nor could they) that Hirani was on notice of the various change orders issued by

the USACE. Moreover, as to unanticipated site conditions or design defects, Hirani had actual

knowledge of them because Ms. Stephen, as Hirani’s representative, was present on the site every

day. Hirani also received constructive notice of unexpected developments through, among other

records, the QCRs, correspondence from Ed Hollander, and three-week look-ahead schedules. See

Pl.’s Rebuttal ¶¶ 120–126 (listing examples of such records). Thus, to the extent Defendants now



                                                51
claim that they suffered prejudice from a purported lack of notice because it precluded them from

seeking an equitable adjustment from the USACE, see Defs.’ FOF & COL at 48, that assertion

simply is not supported by the record.

       B.      Markup on Direct Expenses

       A substantial portion of the damages that ACC seeks—$1,190,079.59—consists of

“[r]easonable gross markup of ACC’s performance throughout the Project from April 2011

through May 1, 2013[.]” Pl.’s FOF & COL at 59 ¶ 262. Ms. Stephen testified that, when ACC

submitted its bid to Hirani, it included a 35% markup of its direct costs, a percentage that she

described was “not untypical” within the civil construction industry in the Washington, D.C., area.

See Day 2 PM at 85:8–86:1. Defendants object to the 35% markup, asserting that Ms. Stephen’s

testimony was not sufficient to support that percentage as an industry norm. Defs.’ Rebuttal

¶¶ 261–62.

       The court finds that the 35% markup as a component of Plaintiff’s damages calculation is

reasonable and consistent with the industry standard in this locality. To be certain, evidence that

the 35% markup was customary came largely from Ms. Stephen. But her testimony was sufficient

to sustain Plaintiff’s burden for several reasons. First, the court accepted Ms. Stephen’s testimony

not only as a percipient witness, but also as an expert in cost accounting in the heavy and highway

civil construction and found her to be credible. See Findings of Fact, supra, ¶¶ 123–24, 127–28.

Second, Ms. Stephen’s testimony concerning the reasonableness of the 35% was based on her

experience in the industry, including her work as a consultant for other companies which gave her

access to their books and records. See Day 2 PM at 86:1–86:22. That experience allowed

Ms. Stephen to testify credibly, and with actual knowledge, that others in the industry charged a

higher markup than ACC. See id. Third, Ms. Stephen’s testimony was corroborated in part by



                                                52
independent data from an industry publication. During her testimony, Ms. Stephen referenced the

industry publication RS Means Site Work & Landscape Cost Data, see Ex. Pl.’s Ex. 7, which

reported an “Average Fixed Overhead” cost in the industry of 16.3% during 2010, see id. at 9.

That average is in line with the 17.5% overhead figure that ACC used when it bid the Project.

Finally, Ms. Stephen’s expert opinion concerning the reasonableness of the 35% was not rebutted

by any contrary evidence.

       For these reasons, ACC provided satisfactory proof justifying a 35% markup of recoverable

direct expenses.

       C.      Equipment Standby Expenses

       ACC seeks $138,135.34 in damages for costs related to its idle equipment at the Project

site. See Pl.’s Ex. 36. According to ACC, that figure represents “the standby costs of having its

owned equipment idling at the site as part of the reasonable value of ACC’s owned equipment

furnished in connection with the Project.” Pl.’s Rebuttal ¶ 140. That figure does not represent,

ACC says, “rental or use value of the equipment, which represents opportunities to create profits

by using the equipment left idling.” Id. Defendants assert that standby equipment expenses are

not available under the Miller Act. See Defs.’ FOF & COL at 49–51.

       The parties agree that the D.C. Circuit has not addressed whether idling or standby time

for owned equipment is recoverable under the Miller Act. So, both parties cite various out-of-

circuit authorities to support their respective positions, but none provides a clear answer.

Defendants, for instance, rely on a host of cases that stand for the proposition that the rental value

of a contractor’s equipment is not recoverable under the Miller Act during periods of delay. See,

e.g., U.S. ex rel. T.M.S. Mech. Contractors, Inc. v. Millers Mut. Fire Ins. Co. of Tex., 942 F.2d

946, 952 (5th Cir. 1991); U.S. ex rel Pertun Const. Co. v. Harvesters Grp., Inc., 918 F.2d 915, 919



                                                 53
(11th Cir. 1990); U.S. ex rel. Edward E. Morgan Co. v. Md. Cas. Co., 147 F.2d 423–25 (5th Cir.

1945); cf. U.S. ex rel. E. Gulf, Inc. v. Metzger Towing, Inc., 910 F.2d 775, 780-81 (11th Cir. 1991)

(declining to decide whether “standby time” qualified as “labor or material” under the Miller Act

but denying request for compensation as not “justly due”). ACC, on the other hand, relies

primarily on a 1972 case from the Middle District of Tennessee, in which the court stated that

“[t]he fair rental value of equipment used on the project is covered by the Miller Act payment bond

even though the equipment may be idle at times during the period of the lease.” See U.S. ex rel. E

& R Const. Co. v. Guy H. James Const. Co., 390 F. Supp. 1193, 1245 (M.D. Tenn. 1972). These

cases are not on point, however, because ACC seeks not rental value, but the standby costs of its

own equipment for all purposes. ACC makes no distinction as to the reason for a piece of

equipment’s non-use, whether it remained idle because of project delays or because of a lack of

need on a given day. See Pl.’s Ex. 36 (calculating value of standby costs for each piece of

equipment for the days each piece of equipment was on the Project site). The cited cases do not

address whether such costs are recoverable under the Miller Act.

       The court thus returns to first principles.     The Miller Act allows a contractor who

“furnish[es] labor or material in carrying out work provided for in a contract” to sue on a payment

bond. 40 U.S.C. §3133(b)(a). “[T]he language of the statute, interpreted in light of its protective

purpose, provides the analytical key to determining whether the supplier can recover under the

Miller Act.” T.M.S. Mech. Contractors, 942 F.2d at 949. Viewed through this lens, it is apparent

that standby time cannot be viewed as an indivisible whole. Consider two scenarios. In the first

a contractor brings a piece of equipment to the work site and uses it over a period of weeks but not

on each day during those weeks. In the second, the contractor brings that same piece of equipment

to the site, but it remains idle for 60 days before it is used. In the former case, the equipment



                                                54
reasonably can be treated as “furnished” “in carrying out work” even on those days it is in non-

use. After all, the contractor cannot reasonably be expected to remove equipment from the site for

every period of idle time between uses. The same does not hold true for the second scenario,

however. If a contractor brings a piece of equipment to the job site and it sits unused for two

months, absent some reasonable explanation for its non-use during such an extended period, the

contractor cannot be said to have “furnished” the equipment “in carrying out work.” The

equipment cost is compensable in the first case, but not the second.

       The challenge the court faces here is that, in calculating costs for standby time, ACC has

not distinguished between these two scenarios. It seeks, for instance, the standby costs for a

hydraulic breaker, which it brought to the site on April 11, 2011, but used for the very first time

on March 6 of the following year, and intermittently thereafter. See Ex. 36 at 1–10. Similarly,

ACC seeks full standby costs for a “C12 Trailer” brought to the site on April 11, 2011, yet used

only six times during the entire life of the project. Id. Likewise, ACC asks to be compensated for

a “Cat 325/Rev Drill” brought to the site on December 27, 2011, used for six days in January 2012,

but only once more for the remainder of the project. Id. at 4–10. Not all equipment was used so

infrequently, however. Take the “Cat 236.” It arrived at the site on December 11, 2017, and was

used regularly until the end of the job, though not every day. Id. at 1–10. The same is generally

true of the “Cat 430,” though ACC did not use it for nearly six weeks after it first arrived and for

multiple extended periods of time thereafter. Id.

       ACC’s indiscriminate demand for all standby costs cannot be sustained under the Miller

Act. A plaintiff seeking quantum meruit as a measure of damages “has the burden of showing

facts and circumstances sufficient to justify the inference of an implied promise to pay for the

services or materials in question and of proving the amount and value thereof to a reasonable



                                                55
degree of certainty or by a preponderance of the evidence.” 66 Am. Jur. 2d Restitution and Implied

Contracts § 87 (2d ed.) (2018) (footnotes omitted). “Reasonable certainty” in this context

“embraces a rough calculation that is not too speculative, vague or contingent upon some unknown

factor.” USA Mach. Corp. v. CSC Ltd., 184 F.3d 257, 265 (3d Cir. 1999) (internal quotation marks

and citation omitted); see also U.S. ex rel. Maris Equip. Co. v. Morganti, Inc., 163 F. Supp. 2d

174, 188 (E.D.N.Y. 2001) (stating in a Miller Act case that “quantum meruit damages must be

based upon a definite and logical connection between what is proven and the damages sought to

be recovered and cannot be speculative”) (internal quotation marks and citation omitted).

       Applying these principles here, the court finds that ACC is entitled to payment for some,

but not all, of the equipment that it furnished. With respect to pieces of equipment that were

present at the site and used with regularity, awarding the costs of standby time is consistent with

the text and purposes of the Miller Act. The same cannot be said, however, of equipment that

idled at the site for extended periods of time without any explanation (e.g., the hydraulic breaker).

At most, ACC offered evidence that it decided to keep equipment on site “in case [ACC] need[ed]

it.” Day 3 A.M. Trial Tr. 112:8–23. Such proof is plainly insufficient to sustain ACC’s burden.

       The court has reviewed the summary chart supporting ACC’s demand for equipment

standby expenses, see Ex. 36, and attempted to distinguish between the time that is recoverable

from that which is not, based on the foregoing principles. A summary of standby costs that the

court deems recoverable is reflected in the following chart. ACC is entitled to $38,897.61 for

standby expenses.




                                                 56
                    Summary of Recoverable Equipment Standby Expenses

   Equipment            Compensable        Days Deducted for     Total Deducted*     Total Award
                                           Unexplained Non-       (*Each day is
                                                 Use               counted at 8
                                                                 hours, except for
                                                                   diesel trucks
                                                                  counted at 16
                                                                  hours per day)

     Cat 303                 Yes                  21 days        $418.32 (21 days     $6,749.15
                                              (Aug. 11, 2011      x $2.49/per hr)
                                             through Aug. 31,
                                                   2011)
     Cat 430                 Yes           122 days (April 11,   $6,178.08 (122      $16,633.66
                                           2011 through Jun 7,   days x $6.33/hr)
                                              2011; Aug. 23,
                                           2011 through Sept.
                                            25, 2011; Nov. 12,
                                            2011 through Dec.
                                                 11, 2011)
Hydraulic Breaker            No                                     $13,183.52           $0

     Cat 299                 Yes           34 days (Mar. 28,     $603.84 (34 days     $1,014.54
                                           2013 through Apr.        x 2.22/hr)
                                               30, 2013)
     Cat 236                 Yes           46 days (Nov. 22,     $842.72 (46 days     $4,272.57
                                           2012 through Jan.       x $2.29/hr)
                                                6, 2013)
Cat 325/Rev Drill            No                                      $50,181             $0

   C12 Trailer               No                                     $12,901.68           $0

Subair Compressor            No                                     $1,179.14            $0

Pick Up Trucks –      No days on standby                                                 $0
      Gas
Pick Up Trucks –             Yes            47 days (Oct. 15,     $1,331.04 (47       $9,244.71
     Diesel                                2011 through Oct.     days x $1.77/hr)
                                           31, 2011; Nov. 12,
                                           2011 through Dec.
                                                11, 2011)
    Generator                Yes                 0 days                 $0             $982.98

      Total                                                         $86,819.34       $38,897.61




                                                57
       D.      Ed Hollander’s Salary

       ACC seeks $306,000 as compensation for Ed Hollander’s work as project manager during

the life of the Project—all 102 weeks. See Pl.’s Ex. 169. In Defendants’ view, ACC cannot

recover for Hollander’s time because Hollander did not perform the type of labor that is

recoverable under the Miller Act. See Def.’s FOF & COL at 51–53. Defendants also challenge

the weekly rate of $3,000 that Ms. Stephen used to calculate Hollander’s salary. Id. at 53.

       Not all work done in connection with a construction project is compensable under the

Miller Act. Courts agree that the term “labor” under the Miller Act is intended to encompass only

physical or manual labor. E.g., United States ex rel. Shannon v. Fed. Ins. Co., 251 Fed. App’x.

269, 272–73 (5th Cir. 2007); U.S. ex rel. Barber-Colman Co. v. U.S. Fid. & Guar. Co., No. 93-

1665, 1994 WL 108502, at *3 (4th Cir. Mar. 31, 1994); U.S. ex rel. Constructors, Inc. v. Gulf Ins.

Co., 313 F. Supp. 2d 593, 597 (E.D. Va. 2004); U.S. ex rel. Big-D Constr. Corp. v. Rafter H

Constr., L.L.C., Case No. 16-cv-00115, 2017 WL 9292187, at *5 (D. Wyo. Feb. 14, 2017).

Although the D.C. Circuit has not addressed whether on-site managerial and administrative work

of the type done by Hollander is compensable under the Miller Act, other circuit courts have held

that “the on-site supervisory work of a project manager falls within the purview of the Miller Act

if such a superintendent did some physical labor at the job site.” U.S. ex rel. Olson v. W.H. Cates

Constr. Co., 972 F.2d 987, 991 (8th Cir. 1992) (emphasis added); accord Fed. Ins. Co., 251 Fed.

App’x. at 273 (citing Olson); Barber-Colman Co., 1994 WL 108502, at *3. Thus, “[p]aying

invoices, reviewing proposals, and supervising hiring are clerical or administrative tasks which,

even if performed at the job site, do not involve physical toil or manual work necessary to bring

them within the scope of the Miller Act.” Constructors, Inc., 313 F. Supp. 2d at 597; accord Big-

D Constr. Corp., 2017 WL 9292187, at *5 (quoting Constructors, Inc., 313 F. Supp. 2d at 97).



                                                58
       In this case, ACC did not muster sufficient evidence to establish that Hollander’s time

constituted “labor” under the Miller Act. Hollander was the President of ACC and an engineer by

training. Trial Tr. Day 1 A.M. Session at 64:18–65:18. He was a daily presence at the worksite,

see Pl.’s Ex. 31, and he wore many hats. According to Ms. Stephen, Hollander functioned as

project manager, superintendent, and estimator for ACC. Day 3 A.M. Tr. at 101:19–22. He had

a work space in the on-site trailer, Day 1 A.M. Tr. at 61:15-18, and his specific tasks included

drafting the daily reports, writing letters, and preparing scheduling information, id. at 24:11–15;

63:9–64:4; Day 3 A.M. Tr. at 45:10-15. On the manual labor side of the ledger, Mr. Janeiro

described Hollander as a “unique engineer” because “he worked with his hands in the field.” Day 3

A.M. Tr. at 11:15-18. But other than that limited testimony, which is not even specific to the

Project, ACC offered no evidence that Hollander engaged in manual labor. Moreover, even if

Mr. Janeiro’s testimony applied to the Project, ACC offers no evidence establishing the percentage

of time Hollander devoted to physical work in the field or the average number of hours per day

that he engaged in such work. The court therefore has no reasonable basis to determine what share,

if any, of the over $300,000 ACC seeks for Hollander’s time constitutes compensable “labor”

under the Miller Act. To award any percentage of that amount would require the court to speculate.

And that it cannot do. See USA Machinery Corp., 184 F.3d at 265. Accordingly, the court finds

that ACC is not entitled to recover any amount for Hollander’s time during the life of the project.

       E.      Salvage Value of Fencing Material

       ACC seeks to collect $43,046.95 for the salvage value of fencing material that was left at

the work site but never recovered. Pl.’s Ex. 169. According to ACC, the Subcontract “took into

consideration the fact that after the construction was completed, the eight-foot stockade fence

material would be returned to ACC,” and ACC negotiated the price of the Subcontract in part “to



                                                59
include the cost of the stockade fence and the labor to install it, less the salvage value.” Pl.’s

Rebuttal at 48–49. ACC, however, cites no evidence for that assertion. The only agreement about

fencing reflected in the Subcontract is that ACC agreed it would “[f]urnish & install all fencing

(site, silt, tree protection, temporary) and relocate as per the drawings and specifications with

appropriate signage.” Subcontract, Schedule B, ¶ 11. ACC bid $110,000 for “Site Fencing

Installation/Removal Work,” see id. at 1, and Hirani agreed to pay ACC an upfront lump sum of

$125,000 for initial project staging costs, including putting up fencing, that ACC would pay back

to Hirani over time, id. at 3. Nothing in the Subcontract, however, states that ACC would take the

fencing at the end of the job, or that ACC discounted the fencing component of its bid to account

for post-job salvage value. Therefore, there is simply no evidence that ACC “furnished” fencing

material to the Project under terms that would entitle ACC to recover $43,046.95 in salvage value

under the Miller Act.

       F.      Reasonable Value of Janeiro’s Work

       ACC seeks to recover $53,975.00 for services rendered by Janeiro, including stone

measurements, shop drawing, fabrication tickets, and stone cladding mockups. See Pl.’s Ex. 169;

Pl.’s FOF & COL at 73 ¶ 41; Pl.’s Rebuttal at 47–48 ¶¶ 160–63. The court concludes, however,

that ACC cannot recover costs incurred by Janeiro because ACC has neither paid Janeiro nor

settled Janeiro’s claim.

       Neither party has cited a case that addresses whether a subcontractor, like ACC, can seek

to recover on a Miller Act payment bond amounts due and owing to a “sub-subcontractor,” like

Janeiro. ACC relies primarily on U.S. Industries v. Blake Construction Co., 671 F.2d 539 (D.C.

Cir. 1982). See Pl.’s Rebuttal at 48. There, the D.C. Circuit held the district court had committed

error when it disallowed a contractor from pursuing as part of its claim against the prime contractor



                                                 60
the claims of its subcontractors. See Blake Constr., 671 F.2d at 550 (“It is common practice for a

contractor to present claims of its subcontractors in a suit against the other party to the prime

contract.”). The court rooted its decision in basic principles of contract law. The contractor could

seek to recover the subcontractors’ costs, the court explained, because the subcontractors could

not directly sue the prime contractor. In other words, there was “no privity” between the

subcontractor and the prime contractor. See id. at 550–51 (citing United States v. Blair, 321 U.S.

730, 737–38 (1944) (holding that a subcontractor cannot sue the government directly on a

government contract because of the absence of an agreement between the government and

subcontractor, but the prime contractor may sue to recover a subcontractors’ costs)). Thus, the

court concluded, “[a]s long as [the contractor] was required to remit to [the subcontractors] any

amount it recovered on their behalf from [the prime contractor]—as its contracts with those two

firms required it to do— [the contractor] was entitled to assert claims on [the subcontractors’]

behalf.” Id. at 551.

       The holding of Blake Construction, at first blush, arguably supports ACC’s position that it

can seek from Defendants the costs incurred by Janeiro. But not so fast. The D.C. Circuit was

careful to distinguish the situation in Blake Construction from a Miller Act claim. The district

court had disallowed the contractor to assert the subcontractors’ claims because of a concern that

allowing the contractor to do so would provide the subcontractor with an end run around the

requirements of the Miller Act (the project in that case was the building of an army hospital, and

the prime contractor was a party to the government contract). See id. The D.C. Circuit rejected

that reasoning. It explained: “The [district] court’s concern that permitting [the contractor] to

assert the claims would circumvent the jurisdictional requirements of the Miller Act ignores the

fact that this suit is not on the performance and payments bonds (to which the Miller Act relates),



                                                61
but for breach of the contract between [the contractor] and [the prime contractor].” Id. Stated

differently, the district court’s concern might have been valid had the subcontractors’ claims been

made under the Miller Act. After all, under the Miller Act, the subcontractors could have sought

recovery from the surety directly. To allow the subcontractors to present their claims indirectly

through the contractor would circumvent the Miller Act’s requirements. Of course, that is the very

factual circumstance of this case. Nothing prevented Janeiro from seeking recourse directly from

Colonial on the payment bond. For reasons not apparent on the record, it elected not to make a

claim. ACC cannot now stand as a proxy for Janeiro on a claim that Janeiro, in effect, has forfeited.

       There is yet another critical distinction between this case and Blake Construction. In that

case, the contractor had entered into separate agreements with its subcontractors promising that it

would prosecute the subcontractors’ claims on their behalf and would compensate them for any

amounts recovered. Id. at 44. Here, on the other hand, ACC presented no evidence that it has such

an agreement with Janeiro. That fact distinction is legally consequential. In Morrison Knudsen

Corp. v. Fireman’s Fund Insurance Co., the Tenth Circuit explained the general rule of

government contracting that allows a prime contractor to recover against the government for the

unpaid costs of its subcontractor, but only if the prime contractor has first settled with the

subcontractor. 175 F.3d 1221, 1249–54 (10th Cir. 1999) (citing 48 C.F.R. § 49-108-1) (“Upon

termination of a prime contract, the prime contractor and each subcontractor are responsible for

the prompt settlement of the settlement proposals of their immediate subcontractors.”). That

approach provides a mechanism to compensate a subcontractor upon termination of the prime

contract, without running afoul of cost principles that do not allow compensation for future

contingencies—an unsettled claim of a subcontractor is treated as a contingent cost. See id. at

1252–53. In this case, because ACC did not settle Janeiro’s claim prior to seeking recovery from



                                                 62
Defendants, Janeiro’s claim remains a contingent, unrecoverable cost.          ACC’s demand for

damages equal to the costs incurred by Janeiro is therefore denied.

II.     PREJUDGMENT INTEREST AND ATTORNEY’S FEES AND COSTS

        In addition to quantum meruit damages, ACC seeks an award of prejudgment interest and

an award of attorney’s fees and costs under the Miller Act. See Pl.’s FOF & COL at 74–75 ¶¶ 43–

46. Colonial opposes these awards. See Defs.’ Rebuttal at 46–48 ¶¶ 43–46.

        A.     Prejudgment Interest

        “The Miller Act provides a federal cause of action, and the scope of the remedy as well as

the substance of the rights created thereby is a matter of federal not state law.” F.D. Rich Co. v.

U. S. ex rel. Indus. Lumber Co., 417 U.S. 116, 127 (1974). The Miller Act does not contain an

express provision authorizing the recovery of pre-judgment interest. See 40 U.S.C. § 3131, et seq.

In the absence of such provision, the federal appellate courts, although recognizing that the

question is one of federal law, have looked to state law for guidance. E.g., U.S. ex rel. Lochridge-

Priest, Inc. v. Con-Real Support Grp., Inc., 950 F.2d 284, 289 (5th Cir. 1992); U.S. ex rel. C.J.C.,

Inc. v. W. States Mech. Contractors, Inc., 834 F.2d 1533, 1541–42 (10th Cir. 1987); U.S. ex rel.

Seminole Sheet Metal Co. v. SCI, Inc., 828 F.2d 671, 677–78 (11th Cir. 1987). This court does the

same.

        Under District of Columbia law, “[p]rejudgment interest operates in part to compensate

prevailing plaintiffs for the loss of the use of money that was wrongfully withheld by the

defendant.” Mazor v. Farrell, 186 A.3d 829, 832 (D.C. 2018). Because of its remedial nature, the

D.C. Court of Appeals has stated that prejudgment interest should be awarded “absent some

justification” for denying it. Washington Inv. Partners of Del., LLC v. Sec. House, K.S.C.C.,

28 A.3d 566, 581 (D.C. 2011) (internal quotation marks omitted).



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        Prejudgment interest in the District of Columbia is a creature of statute. As applicable

here, D.C. Code § 15-109 provides that a trial court may award prejudgment interest on an

unliquidated debt “if necessary to fully compensate the plaintiff.” See also Gen. Ry. Signal Co. v.

Washington Metro. Area Transit Auth., 875 F.2d 320, 328–29 (D.C. Cir. 1989) (“Section 15-109

expressly refers only to ‘action[s] to recover for breach of contract,’ but it has been applied to a

suit for accounting which, ‘although not framed as a breach of contract action, was based on a

contractual relationship between the parties.’”) (quoting House of Wines v. Sumter, 510 A.2d 492,

499 (D.C. 1986)). 12 The trial court has “broad discretion” to award prejudgment interest under

this statute, District of Columbia v. Pierce Assoc., Inc., 527 A.2d 306, 310 (D.C. 1987), and the

statute “should be generously construed so that the wronged party can be made whole.” Dist.

Cablevision Ltd. P’ship v. Bassin, 828 A.2d 714, 732 (D.C. 2003) (quoting Riggs Nat’l Bank v.

District of Columbia, 581 A.2d 1229, 1255 (D.C. 1990). These principles are consonant with the

Supreme Court’s statement that “the Miller Act should receive a liberal construction to effectuate

its protective purposes.” U.S. ex rel. Sherman v. Carter, 353 U.S. 210, 216 (1957).

        The court finds that an award of prejudgment interest is appropriate here to make ACC

whole. Hirani last paid ACC for work in December 2012. Hirani never compensated ACC for the

work reflected in Payment Requisition No. 19, which covered work completed at the site between

November 21, 2012, and February 20, 2013. See Pl.’s Ex. 141. ACC also never received payment

on Payment Requisition No. 20, which reflected work done by ACC through March 24, 2013. See

Pl.’s Ex. 157. An award of prejudgment interest is appropriate to compensate ACC for these and

other unpaid amounts to make up for the lost time value of money.


12
  By contrast, D.C. Code § 15-508 concerns awarding prejudgment interest in cases of liquidated damages. The
D.C. Court of Appeals has held that debts resting on quantum meruit recovery are “by their very nature unliquidated”
and therefore prejudgment interest is not available on such damages under section 15-508. See Mazor, 186 A.2d at
833–34 (quoting Schwartz v. Swartz, 723 A.3d 841, 844 (D.C. 1998) (internal quotation marks omitted)).

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       Neither party has addressed the appropriate rate of interest to be paid on a judgment. Courts

confronted with the question under the Miller Act, once again, have looked to state law for an

answer. E.g., N. Star Terminal & Stevedore Co. ex rel. v. Nugget Const. Inc., 126 F. App’x 348,

351 (9th Cir. 2005); U.S. ex rel. Varco Pruden Bldgs. v. Reid & Gary Strickland Co., 161 F.3d

915, 922 (5th Cir. 1998); Towerridge, Inc. v. T.A.O., Inc., 111 F.3d 758, 764 (10th Cir. 1997); U.S.

ex rel. Yonker Const. Co. v. W. Contracting Corp., 935 F.2d 936, 941 (8th Cir. 1991). Under

District of Columbia law, “when the rate of interest has not been specified in the contract, courts

in this jurisdiction have without exception limited it to the statutory rate provided in D.C. Code

§ 28-3302.” Pierce Assocs., 527 A.2d at 310. Here, the Subcontract specifies no rate of interest,

therefore section 28-3302 applies. Under that statute, courts routinely award a 6% per annum rate

under the statute’s first clause. See D.C. Code § 28-3302(a) (“The rate of interest in the District

upon the loan or forbearance of money, goods, or things in action in the absence of expressed

contract, is 6% per annum.”); Pierce Assocs., 527 A.2d at 310–11; Cobell ex rel. Cobell v. Jewell,

260 F. Supp. 3d 1, 9 (D.D.C. 2017). This court will do the same. Accordingly, the court finds that

a prejudgment interest award at the rate of 6% per annum will fairly compensate ACC for the delay

in the receipt of payment.

       Finally, there remains the question of from what date should prejudgment interest accrue.

Once more, looking to District of Columbia law, section 15-109 affords courts “discretionary

equitable power” to fix the effective date of accrual. See Gen. Ry. Signal Co., 875 F.2d at 328

(quoting Pierce Assocs., 527 A.2d at 310). Exercising such discretion here, the court looks to the

Subcontract, which stipulates by when Hirani was required to pay ACC. Subcontract ¶ 3.2.

Section 3.2 of the agreement provides (including the parties’ deletions and interlineations):

               The Subcontractor shall accept the credit worthiness of the Owner,
               if the cause of the nonpayment relates to the obligation or

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               responsibilities of [Hirani] then the Subcontractor shall be entitled
               to receive payment for its work within 30 days of approval of the
               work. In any event, “Progress Payments” shall not become due and
               payable prior to the 30th of the following month or five (5) days
               after [Hirani] receives payment from the Owner on account of the
               Subcontractor’s work.

The court finds this provision to be confusing. It is unclear whether the first sentence sets the

payment date in this instance (“within 30 days of approval of the work”), or whether the second

sentence that starts with “[i]n any event,” is controlling. The best the court can tell from the

structure of the “Price and Payments” provision is that the parties contemplated that ACC would

receive payment after the USACE approved the work and paid Hirani. Using that understanding

as a measure, and to simplify the prejudgment interest calculation, the court sets June 1, 2013—

30 days after the last day of compensable work ACC performed on the site—as the date on which

prejudgment interest began to accrue.

       B.      Attorney’s Fees and Costs

       At last, the court arrives at ACC’s demand for attorney’s fees and costs. The Miller Act

does not expressly authorize the award of attorney’s fees to a successful plaintiff. The Supreme

Court, however, has filled the statutory void. It has held that whether attorney’s fees are available

on a Miller Act claim is a matter of federal common law. See F.D. Rich, 417 U.S. at 127 (noting

the lack of “any evidence of congressional intent to incorporate state law to govern such an

important element of Miller Act litigation as liability for attorneys’ fees”). Thus, the “American

Rule” applies, see id. at 127–31, which provides that attorney’s fees “are not ordinarily recoverable

in the absence of a statute or enforceable contract providing therefor,” Fleischmann Distilling

Corp. v. Maier Brewing Co., 386 U.S. 714, 717 (1967). Consistent with this approach, multiple

circuit courts have held that fees are available under the Miller Act when the relevant contract so

provides. See GE Supply v. C & G Enters., Inc., 212 F.3d 14, 19 (1st Cir. 2000) (citing cases).

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Additionally, under the “bad faith” exception, the American Rule permits a court to award

attorney’s fees when the losing party has “acted in bad faith, vexatiously, wantonly, or for

oppressive reasons.” F.D. Rich, 417 U.S. at 129. Courts have recognized that the exception is

applicable in Miller Act cases. See id.; accord Towerridge, 111 F.3d at 765 (collecting cases).

        ACC asserts that an attorney’s fees award is compelled both by contract and by

Defendants’ bad faith conduct. The court disagrees.

                1.     Contractual Obligation to Pay Attorney’s Fees

        The Subcontract contains no attorney’s fees provision. ACC therefore points the court to

a letter agreement between the company and Hirani dated April 4, 2011, the same day the parties

entered into the Subcontract. Subcontract at 16. That agreement provides in relevant part that

“Hirani agrees to indemnify and hold harmless [ACC] against any and all claims, suits, damages,

liabilities, costs, and expenses, including attorney’s fees . . . arising out of the Project or

Subcontractor’s acceptance or performance of this Subcontract.” Id.

        ACC’s reliance on this letter agreement suffers from two fatal problems. First, it is not in

evidence. When Plaintiff presented its Exhibit 54, the court admitted only the pages comprising

the actual Subcontract, and not any extraneous pages contained therein, including the letter

agreement. See Day 1 A.M. Tr. at 68:23–70:5. The court invited ACC to lay the foundation as to

these extraneous pages, but it never did so. See id. Therefore, the letter agreement is not evidence

in this case.

        Second, even if it were evidence, the letter agreement does not have the legal effect ACC

ascribes to it. Properly understood, the letter agreement is no more than an indemnification

agreement as to third-party claims against ACC. It is not a fee-shifting provision as to claims

between ACC and Hirani that might arise out of the Project. See Hensel Phelps, 861 F.3d at 275



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(requiring that there be “clear and unequivocal intent to include first-party claims . . . on the face

of the instrument”); see also James G. Davis Constr. Corp. v. HRGM, 147 A.3d 332, 340–41 (D.C.

2016). The letter agreement therefore provides no basis for an award of fees.

               2.      Bad Faith

       ACC’s fees demand based on bad faith likewise fails. ACC claims that Defendants acted

in bad faith by not promptly paying ACC for the work it performed. As evidence, ACC points to

the non-payment of Payment Requisition No. 19, even though the USACE had approved it and

remitted money to Colonial. See Pl.’s FOF & COL at 74–75 ¶ 46.

       The D.C. Circuit has strictly construed the bad-faith exception to the American Rule. “Bad

faith in conduct giving rise to the lawsuit may be found where ‘a party, confronted with a clear

statutory or judicially-imposed duty towards another, is so recalcitrant in performing that duty that

the injured party is forced to undertake otherwise unnecessary litigation to vindicate plain legal

rights.’” Am. Hosp. Ass’n v. Sullivan, 938 F.2d 216, 220 (D.C. Cir. 1991) (citation omitted).

Because the “underlying rationale of fee-shifting upon a showing of bad faith is punishment of the

wrongdoer rather than compensation of the victim,” such an award is reserved “only when

extraordinary circumstances or dominating reasons of fairness so demand.” Nepera Chem., Inc.

v. Sea-Land Serv., Inc., 794 F.2d 688, 702 (D.C. Cir. 1986). A “finding of bad faith must be

supported by clear and convincing evidence.” Ass’n of Am. Physicians & Surgeons, Inc. v. Clinton,

187 F.3d 655, 660 (D.C. Cir. 1999) (citation and internal quotation marks omitted).

       ACC comes nowhere close to satisfying these stringent standards. Although the court finds

that ACC is entitled to be compensated for the work it performed, Defendants’ refusal to make

such payment is not so extraordinary as to distinguish this matter from run-of-the-mill Miller Act

disputes. ACC believed it was owed money for the work it had done; Defendants thought they



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were relieved of their obligation to pay because ACC had failed to perform. Such disputes are

commonplace in the construction business. Therefore, ACC is not entitled to attorney’s fees on

the ground Defendants acted in bad faith.

                                             CONCLUSION

        To summarize, the court finds that ACC has carried its burden of proof by a preponderance

of the evidence as to its Miller Act claim against Colonial and its breach of contract claim against

Hirani. Colonial, on the other hand, did not carry its burden of proof as to its counterclaims.

        To facilitate entry of a final judgment, no later than December 7, 2018, ACC shall submit

to the court a revised damages calculation, including prejudgment interest, as to both its Miller Act

and breach of contract claims that is consistent with these Findings of Fact and Conclusions of

Law. 13 Thereafter, no later than December 17, 2018, Defendants may lodge objections to ACC’s

renewed calculation on grounds other than those already addressed by the court. Finally, ACC

may file a reply by December 21, 2018.




Dated: November 28, 2018                                   Amit P Mehta
                                                           United States District Judge




13
  ACC does not distinguish between the quantum meruit award it seeks from Colonial under the Miller Act and the
damages it demands from Hirani for breach of contract. ACC’s submission shall distinguish between these two
theories of compensation.

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