Nova Grp./Tutor-Saliba v. The United States

• Decision Date: 17 March 2022
• Docket Number: 16-925C,15-885C
• Court: U.S. Claims Court
• Parties: NOVA GROUP/TUTOR-SALIBA, A Joint Venture, Plaintiff, v. THE UNITED STATES, Defendant.

NOVA GROUP/TUTOR-SALIBA, A Joint Venture, Plaintiff,
v.
THE UNITED STATES, Defendant.

Nos. 15-885C, 16-925C

United States Court of Federal Claims

March 17, 2022^[1]

Contract Disputes Act; Construction; Type I Differing Site Condition; Type II Differing Site Condition; Defective Specifications; Design Specifications; Suspension of Critical Path Work; Excusable Delay; Constructive Acceleration; Damages; Overtime; Lost Productivity; Modified Total Cost Approach; Equipment Expense; Reopening the Record to Admit an Exhibit Post-Trial; FAR 52.244-4; FAR 52.243-4(d).

Gerald Scott Walters, Smith Currie & Hancock, LLP, 245 Peachtree Center Avenue, NE, 2700 Marquis One Tower, Atlanta, GA 30303-1227, and Brian S. Wood, and Sarah K. Carpenter, Smith Currie & Hancock, LLP, 1025 Connecticut Avenue, NW, Suite 600, Washington, DC, 20036, for Plaintiff.

Joseph H. Hunt, Robert E. Kirschman, Jr., Steven J. Gillingham, and Adam E. Lyons, United States Department of Justice, Civil Division, Commercial Litigation Branch, P.O. Box 480, Ben Franklin Station, Washington, D.C. 20044, for Defendant. David M. Marquez, Naval Litigation Office, Office of General Counsel, United States Department of the Navy, 720 Kennon St., Room 223, Washington Navy Yard, D.C. 20374, and Melissa L. Baker, Andrew J. Hunter, and Kristin B. McGrory, United States Department of Justice, Civil Division, Commercial Litigation Branch, P.O. Box 480, Ben Franklin Station, Washington, D.C. 20044, of Counsel.

POST-TRIAL OPINION AND ORDER

MARY ELLEN COSTER WILLIAMS, SENIOR JUDGE

These consolidated Contract Disputes Act ("CDA") cases come before the Court following a trial on liability and damages. Plaintiff Nova Group/Tutor-Saliba ("NTS"), a joint venture raises two claims. First, Plaintiff seeks $1, 881, 900 for a constructive change due to the Government's

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questioning of its design of a pier at the Puget Sound Naval Shipyard. The Government's issue with the design caused a stoppage of critical path work, an independent review after the Government previously approved that design, and an ensuing acceleration of work. Second, Plaintiff seeks $10, 498, 284.85 for extra work caused by differing site conditions or defective specifications. For the reasons stated below, the Court grants Plaintiff's design-related claim in part and denies its differing site conditions/defective specifications claim.

Findings of Fact^[2]

The Pier B Project

The P-356 Carrier Vessel Nuclear ("CVN") Maintenance Pier Replacement Project ("Project") at the Puget Sound Naval Shipyard and Intermediate Maintenance Facility was a design and construction project for the replacement and upgrade of various waterfront substructures at Naval Base Kitsap, Bremerton, Washington. JX 2.1; DX 2.5. The Project involved the demolition of the existing Pier B ("Old Pier"), a 60-foot wide and 1, 175-foot long pier, and the design and construction of an 85-foot wide and 1, 325-foot long replacement pier ("Pier B") for the berthing of CVN-class aircraft carriers, supporting vessels, and submarines for repair operations. JX 2.536, .2618; Tr. 78.

The Old Pier extended south into Puget Sound from the east-west shoreline. See JX 2.1216; PX 39.36. Pier B was to partially overlap the area of the Old Pier. While Pier B would share its western border with the entire Old Pier, it was to be longer to the south, and wider to the east. See PX 39.36; Tr. 82-84. The Project also contemplated that the contractor would join Pier B and a new parallel structure to the east, the Mole Quaywall, to create a contiguous surface. JX 2.537, .1220; compare JX 2.1219 with JX 2.1220. The drawing below indicates the location of Pier B (outlined in red) as compared to the Old Pier:

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(Image Omitted)

PX 39.36.

In addition to work on Pier B, the Project required that the contractor construct a new Mole Quaywall -- a continuous steel-coated sheet pile bulkhead with solid prestressed concrete piles, approximately 22-feet, 6-inches wide by 1, 000-feet long, that would buttress the west side of Dry Dock 6, which ran parallel to the Old Pier. Under this Project, the contractor was also to demolish and replace portions of Quaywall 729 -- "a two-level reinforced concrete structure consisting of a concrete deck, columns, and framing members, supported by timber piles." JX 2.536; Tr. 79-80, 88; Tr. 1947-48.

The Shannon & Wilson 2006 Report

Prior to seeking proposals for the Project, the Navy hired a construction engineering firm, KPFF Consulting Engineers ("KPFF"), and its geotechnical subcontractor, Shannon & Wilson, Inc. ("Shannon & Wilson"), to conduct a preliminary geological study. DX 2.1, .5; Tr. 456. On April 24, 2006, Shannon & Wilson provided its conclusions to KPFF in its Preliminary Geotechnical Report ("2006 Report"). DX 2.1; Tr. 541.

The 2006 Report contained "the results of the geotechnical baseline information for the use by design-build (DB) contractors, and conceptual geotechnical engineering recommendations for use by KPFF Consulting Engineers (KPFF) in evaluating potential structure configurations for the project." DX 2.5. The 2006 Report specified: "[t]he recommendations provided in this report should not be used for final design." DX 2.7. In addition, the 2006 Report expressly stated that it "was prepared for the exclusive use of KPFF and NAVFAC NW," and that it "should be made available to prospective DB contractors for information on factual data only, and not as a warranty

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of subsurface conditions such as those interpreted from the subsurface profile and presented in the discussion of subsurface conditions." Id.

For its evaluation and findings regarding Pier B, Shannon & Wilson relied on "existing subsurface information from previous projects performed at or near the project site," as well as drilling and sampling five borings during a two-and-a-half-week field exploration. DX 2.7-.8, .37. "[T]he subsurface explorations were performed along the east side of the existing Pier B," and "no borings were performed overwater in the slip between the drydock mole and the pier, or to the south of the existing pier." DX 2.9.

Based on the data, the 2006 Report concluded that the subsurface beneath the proposed new Pier B was comprised of four layers in descending order: (1) fill deposits; (2) estuarine deposits; (3) beach deposits; and (4) glacial-overridden deposits (advance outwash and fluvial deposits). DX 2.10-.11, .38. The fill and estuarine layers were uncompacted. DX 2.12. These layers were comprised of soft soils -- "loose to dense, sand to gravelly sand and sandy gravel soil" in the fill layer and "sandy, clayey silt, to clayey silt" in the estuarine layer. DX 2.10. The beach layer consisted of "dense to very dense sand to gravelly sand," with thicknesses ranging from five to 20 feet along the Old Pier. DX 2.11. The glacial layer, below elevations of 30 to 60 feet, was comprised of sand and gravel, and "based on [Shannon & Wilson's] observations during drilling, these very dense deposits likely contain[ed] cobbles." Id. The 2006 Report used the Unified Soil Classification System, which defines "dense" as 30 to 50 "blows" per foot and "very dense" as more than 50 blows per foot. DX 2.128.^[3] Gary Horvitz, Vice President and a Senior Principal Geotechnical Engineer at Hart Crowser, Inc., explained that "very dense" was "defined by the standard penetration test resistance" and meant "that the blow count is greater than 50 blows per foot, so it's a very high-strength, competent material." Tr. 1756-58.

The 2006 Report contained the following diagram depicting Pier B's subsurface profile:

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(Image Omitted)

DX 2.38.

The 2006 Report anticipated that the contractor would need to drive concrete displacement piles, which "would be difficult to penetrate a sufficient distance into very dense glacial soils" and would likely require stingers to help penetrate the denser soils. DX 2.12. A stinger is an "H-beam that has been cast into [the pile] that may be 10 feet or 5 feet into it," and extends 10 feet below the pile. Tr. 434. The stinger is "smaller in diameter [than the pile] by 10 to 12 inches." Id. The purpose of the stinger is to make it easier to penetrate the soil. Tr. 502-03. The following is a photo of a typical stinger used at Pier B:

(Image Omitted)

JX 49.135; Tr. 447.

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The 2006 Report warned that, "any pile installation for the proposed pier would encounter moderate to hard driving conditions in the existing fill deposits and soft to moderate driving conditions in the existing estuarine deposits, and hard driving conditions in the dense to very dense beach deposits and glacial soils." DX 2.12; Tr. 542. In general, hard driving involves repeated hits at a pile with a high-quality hammer.^[4] Tr. 407-08 (Mr. Brenner understanding "hard driving" to mean "hit[ting] a pile 60 to 70 times to make it go a foot").

In addition to hard driving, the 2006 Report stated that "[o]bstructions, such as large cobbles, boulders, or miscellaneous construction debris could be encountered within the fill and underlying soft estuarine deposits" and reiterated that cobbles or boulders could be encountered in the glacial deposits. DX 2.13. There was also "an existing riprap layer along the slope east of and below the [Old Pier]" and "[c]oncrete debris" on the slope east of the Old Pier. DX 2.13. The 2006 Report advised that "the contractor should develop remedial measures to mitigate the impact of obstructions," and that obstructions included cobbles and boulders. DX 2.13; Tr. 544.

The RFP

On November 7, 2007, NAVFAC issued Request for Proposals ("RFP") number N44255-08-R-6000, for the Project. JX 1.7. The RFP informed bidders that NAVFAC sought a contractor "to demolish the existing Pier Bravo and design and construct a new ship repair wharf, including the replacement of approximately 300 lineal feet of quay wall (Structure 729), the strengthening [of] the sheet...