Free Supplemental Brief - District Court of Federal Claims - federal

Case 1:07-cv-00143-MMS

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS SKANSKA USA BUILDING, INC., Plaintiff, v. THE UNITED STATES, Defendant. ) ) ) ) ) ) ) ) )

No. 07-143 (Judge Sweeney) SUPPLEMENTAL BRIEFING IN IN SUPPORT OF PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT FOLLOWING CRAWFORD DEPOSITION

SUPPLEMENTAL BRIEFING FOLLOWING CRAWFORD DEPOSITION

Skanska's claim is to be compensated for the expense it incurred transporting contaminated soil nine miles to a disposal site in compliance with a COE directive. Skanska is entitled to compensation because the COE's directive was a "change" in the work. Until the directive was issued, there was no requirement in the contract to transport the soils to the directed disposal site. The COE has stated in writing that its directive did in fact constitute a "change." (Attached hereto as Appendix A is a diagram entitled Issues Progression Flowchart" illustrating the logical progression of the issues in this case.) The amount of compensation due, the quantum, is the only subject of dispute in this case. The COE paid Skanska a nominal amount for the cost of spreading the stockpiled soils it transported at the disposal site, but refused to pay for the remaining expense. The COE's refusal to pay the remainder of the expenses is based on its theory that the remaining costs Skanska incurred were not caused by its directive. It contends that the transportation requirement ­ and, therefore, any associated costs ­ was always a part of the contract.

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Skanska acknowledges that it was responsible for disposal of surplus soils off of Fort Lewis and, therefore, the costs ­ if any ­ associated with the disposal. However, Skanska denies that it would have incurred any costs to transport soils offsite because at bid time it had rightfully expected to be able to make arrangements with another contractor to remove the soils at no expense to itself under the terms of the contract. There is no dispute by the government that the estimating documents of Skanska's earthwork subcontractor Active Construction, Inc. clearly show that there was no cost for offsite disposal of soil included in its bid price. Skanska advised the COE that there was nowhere left on site to use the excess soil in the stockpile and requested authorization to dispose of it offsite. The COE granted that authorization. (See Appendix A-37 to Defendant's Opposition Brief.) Skanska's subcontractor Active reached an agreement with a third-party hauler to transport the stockpiled soil offsite at no expense to itself, for use as surcharge material at a project site where a Babies-R-Us store was under construction. Before the material could be hauled away, the COE tested the soil in the stockpile, determined that it was contaminated with lead, and issued instructions prohibiting the material from being disposed of anywhere other than a "Class D" hazardous waste landfill. The closest "Class D" landfill was 31 miles away from the project. In an effort to mitigate its damages, the COE found an alternate disposal site 9 miles away from the project. Skanska and its

subcontractor Active were exposed to substantial unanticipated additional expense associated with transporting all these soils to a location 9 miles away and, therefore, refused to perform the work unless a directive was issued requiring them to do so. The COE issued that directive and the soils were transported.

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The COE has offered multiple theories over time for its denial that its directive was the legal cause for Skanska's incurring the haul additional expense. Each of these theories is predicated on the COE's contention that Skanska had no right to believe that it would be able to avoid offsite disposal costs by trading the soil to a third party in exchange for their hauling it away: First, it claimed that Skanska could not have traded the soil to a third-party because the soil was owned by the federal government and title to the soil had never been transferred to Skanska. Skanska did not dispute that the soil belonged to the government, but pointed out · · · that §02300 of the contract required the surplus soil to be disposed of outside of Fort Lewis ("off of government-controlled land"), that the COE had authorized Skanska to dispose of the government's excess soil, and that §01572 the contract documents (1) explicitly instructed Skanska to be proactive in recycling waste and "soil," instead of hauling it to landfills, and (2) explicitly instructed Skanska that it ­ the Contractor ­ was entitled to any financial benefit accrued in doing so.

Next, the COE claimed that §01572 only applied to "construction waste" and not soil. Skanska then pointed out that §01572 not only repeatedly referred generally to byproducts of earthwork and land clearing operations, but that it mentioned "soil" specifically. Finally, the COE has claimed, even if it was true that §02300 did require surplus soil to be disposed of off of Fort Lewis and that §01572 granted the contractor the right to any proceeds of that disposal, those sections were overridden by §01410, which recites that "clean fill materials shall be disposed of on Fort Lewis at a site as directed by Public Works, Engineering & Contract Management Division." (Emphasis added). COE acknowledges that §01410 of the contract was never the basis for the rejection of the contractor's request for equitable adjustment initially or within the subsequent Contracting Officer's decision rejecting the claim: "Although this provision of the contract was not relied upon by the Government as the original source of the

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direction to Skanska to haul project soils to Landfill #2, Section 01410-3.5.2 fully supports that direction." Defendant's Motion for Summary Judgment and Appendix, p. 18 (emphasis added). To prop up this final argument, COE presented a declaration signed by Philip Crawford. Mr. Crawford swore under penalty of perjury in his declaration (a) that his "position ... qualifie[d] [him] to speak on behalf of Army Public Works" (Crawford Declaration, ¶1) (b) that he was "personally involved in the decision to place project soils from the FYO3 Whole Barracks Renewal Project at Landfill #2" (Crawford Declaration, ¶2) and (c) that "those soils constituted clean fill." (Crawford Declaration, ¶4). Mr. Crawford's declaration, even if accepted at face value, fails to support the COE's argument that §01410 superseded §02300 and §01572 because the allegations do not present the necessary proof. §01410 requires proof that a directive was issued by Fort Lewis Public Works" Engineering & Contract Management Division. · Crawford offered no testimony that a directive to move the stockpile to Landfill #2 was issued by Fort Lewis Public Works' "Engineering & Contract Management Division," the only Department within §01410 authorized to issue such a directive. Crawford offered no testimony that a directive was issued by any department of Fort Lewis Public Works at all (as contrasted with the documentary evidence submitted that the only directive issued came from the COE, not Public Works). Crawford offered no testimony that he was employed by or otherwise authorized to speak on behalf of Fort Lewis Public Works, "Engineering & Contract Management Division," as referenced in §01410. Instead, he state he was employed by the "Environmental Compliance Branch," a subordinate office of an entirely different Division, the "Environmental Division." 4:13 14 15 16 5: 4 5 6 7 8 Q. A. Q. A. Who are you currently employed by? Fort Lewis Public Works. What's your title? Chief Environmental Compliance Branch.

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Q. So in terms of an organizational chart, you'd have Fort Lewis Public Works, and then beneath Fort Lewis Public Works would be -- would you call it the Environmental Division? A. That's correct.

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Q. And then the Environmental Compliance Branch is a division or a branch of the Environmental Division? A. It's a branch. That's correct. Q. Are you a -- you've indicated you're not a member of the Engineering AND Contract Management Division? A. That's correct. Q. What makes you think that you have the authority to speak on behalf of that division, then? You're in a completely different division. A. That's right, I am in a different division. In some matters, that division would come to me for -- for guidance, for opinions on -on how to proceed. Q. So you're allowed to provide them with guidance? A. That's correct. Q. Is that tantamount to or is that the same thing as being authorized to speak on behalf of the engineering and contract management division? A. No. You're in an area that I'm not even sure of.

Declaration of Terry R. Marston II, Exhibit 1 (emphasis added). Mr. Crawford's declaration therefore fails on its face to substantiate the COE's argument. His declaration has far more flaws, however, that were brought out in the course of his subsequent deposition that demonstrate that Mr. Crawford lacks the testimonial capacity to render the opinion that the soil as he claims constituted "clean fill." As such his declaration is incapable to raising an issue of fact sufficient to bar Skanska's requested grant of summary judgment. · His testimony demonstrates that he lacks the education necessary to provide the foundation necessary to enable him to render an opinion on whether soils were contaminated or clean.

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o He admits having no formal training in hazardous waste 1 o He admits he's not an expert on the subject of soil contamination 2 o His testimony includes the assertion that a Class D landfill is a standard municipal landfill 3 (even though his own declaration at paragraph 7 states that the closest Class D landfill is 31 miles from the base).

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Q. Do you have any specific education with respect to compliance with Washington environmental regulations? A. When you say specific education, do you mean formal training? Q. Yes. A. No, I don't have any formal training in the hazardous waste arena.

Declaration of Terry R. Marston II, Exhibit 1, pp. 43-44 (emphasis added).
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17:22 Q. Is that a practical evaluation, this stuff 23 is great, you can take it -24 A. Yes. 25 Q. -- and you can use it for whatever, or is 18: 1 that your technical opinion that this material 2 constitutes clean fill? 3 A. Well, again, I'm not the waste expert. 4 However, in my opinion, it constituted clean fill. Declaration of Terry R. Marston II, Exhibit 1, pp. 17-18 (emphasis added). 54: 2 A. Yes, I think so. I could be confused on 3 that. I'm not an expert. I go with my -- with my 4 staff. 5 MR. MARSTON: No further questions. Thank 6 you. Declaration of Terry R. Marston II, Exhibit 1, pp. 43-44 (emphasis added).
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53: 9 Q. Such as a class D landfill? 10 A. Well, a class D. I don't know what that 11 means exactly.

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His testimony demonstrates that he personally conducted no investigation into whether the soil was or was not clean. o He relied exclusively on his staff 4 o He never looked at the soil report at the time of the events or even at the time he signed his declaration 5

53:20 Q. And just to clarify, and you cannot 21 identify what a class D landfill is? 22 A. It's -- my recollection of a class D 23 landfill is just a regular sanitary landfill. 24 That's subtitle D of RCRA. 25 Q. And so that's a standard municipal 54: 1 landfill? 2 A. Yes, I think so. I could be confused on 3 that. I'm not an expert. I go with my -- with my 4 staff. 5 MR. MARSTON: No further questions. Thank 6 you. Declaration of Terry R. Marston II, Exhibit 1, pp. 53-54.
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Q. So to what extent are you relying upon the advice of your staff to render the opinion that this soil stockpile did not need to be disposed of at a class D landfill if used off of Fort Lewis? A. To the extent that they would inform me that the analytical results were under the applicable regulatory limits. Q. And that's what they informed you at the time? A. That's correct.

Declaration of Terry R. Marston II, Exhibit 1, pp. 47-48.

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o He never looked at anything other than the single page of test results from the report, and even then only the day before his deposition. 6 Mr. Crawford's declaration lacks the necessary assertions of fact and lacks any semblance of credibility such as would enable it to either overcome plaintiffs Motion FOR Summary Judgment or to substantiate Defendants Counter ­ Motion Summary Judgment.

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13:13 Q. Did you ever look at the soils reports 14 that were prepared by the Corps of Engineers? 15 A. The soils reports? 16 Q. Yes. The inspections of the soil 17 stockpile, and specifically, the one that 18 identified the presence of elevated levels of lead? 19 A. You mean the analytical results? 20 Q. Yes. 21 A. I saw those yesterday. 22 Q. Had you ever looked at them before 23 yesterday? 24 A. I had reports, verbal reports, about them 25 from my subordinates. 14: 1 Q. Sir, have you personally ever read those 2 reports before yesterday? 3 A. I have no direct memory of doing so. Declaration of Terry R. Marston II, Exhibit 1, pp. 13-14.
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38:11 Q. So you weren't even shown the entirety of 12 the report? 13 A. It was there, but all I saw was the -- I 14 haven't read that whole report. 39: 4 Q. How many pages of the report did you read? 5 A. That was -- that was one page. 6 Q. You read one page of the entire report 7 only? 8 A. Yesterday, yes. 9 Q. And you're basing your conclusion on one 10 page? 11 A. Yes. Declaration of Terry R. Marston II, Exhibit 1, pp. 38-39.

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Conclusion For the reasons stated here, Plaintiff asserts that the relevant facts are undisputed and that it is entitled to judgment as a matter of law. RESPECTFULLY SUBMITTED this 2nd day of May, 2008. MARSTON ELISON, PLLC

By s/ Terry R. Marston II . Terry R. Marston II, WSBA No. 14440 Marston Elison, PLLC 16880 NE 79th Street Redmond, WA 98052 Telephone: 425-861-5700 Facsimile: 425-861-6969 E-Mail: [email protected] Attorneys for Plaintiff

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CERTIFICATE OF SERVICE

I hereby certify that on this 2nd day of May, 2008, a copy of the foregoing "SUPPLEMENTAL BRIEFING IN SUPPORT OF PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT FOLLOWING CRAWFORD DEPOSITION" and "DECLARATION OF TERRY R. MARSTON" were filed electronically. I understand that notice of this filing will be sent to all parties by operation of the Court's electronic filing system. Parties may access this filing through the Court's system.

s/ Terry R. Marston II Terry R. Marston

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