Free Proposed Findings of Uncontroverted Fact - District Court of Federal Claims - federal

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

No. 07-143C Judge Firestone

DEFENDANT'S PROPOSED FINDINGS OF UNCONTROVERTED FACT Pursuant to Rule 56(h)(1) of the Rules of the Court of Federal Claims, defendant hereby respectfully submits the following proposed findings of uncontroverted fact: 1. On March 31, 2003, the Government awarded Contract DACA67-03-C-0203, FY03 Whole Barracks Renewal, Fort Lewis, Washington ("the contract") to Skanska USA Building, Inc. ("Skanska") for the construction of a barracks complex on Fort Lewis ("the project"). A2. 2. Skanska subcontracted its civil work on the project to Nacon, Inc. ("Nacon"). Complaint paragraph 5. 3. In turn, Nacon subcontracted earthwork and utilities work for the project to Active Construction, Inc. ("Active"). Complaint paragraph 6. 4. 5. Section 02300 of the contract was entitled "Earthwork." A8. Section 02300-1.9 of the contract provided, in relevant part, as follows: Unsatisfactory materials removed from excavations shall be disposed of outside the limits of Government-controlled land. Satisfactory material removed from excavations shall be used insofar as practicable, in the construction of fills, embankments, subgrades, shoulders, bedding (as backfill), and for similar purposes. No satisfactory excavated material shall be wasted without specific written authorization. Satisfactory material authorized to be wasted shall be disposed of outside the limits of Government-controlled land. A10.

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6.

Section 02300-1.4.1 of the contract, which is entitled "Satisfactory Materials" provided as follows: Satisfactory materials shall comprise any materials classified by ASTM D 2487 as GW, GP, SW, and SP. Materials classified by ASTM D 2487 as GP-GM and SPSM are satisfactory provided they contain moisture contents suitable for the intended use. Black organic-rich gravel (GM) is satisfactory only for open, seeded, turfed, or other landscaped areas provided they contain moisture contends suitable for the intended use. Satisfactory materials for grading shall be comprised of stones less than 150mm, except for fill material for pavements which shall be comprised of stones less than 75 mm in any dimension.

A9. 7. According to the contract, the term "ASTM D 2487" is a reference to "(1998) Classification of Soils for Engineering Purposes (Unified Soil Classification System." A8. 8. ASTM D 2487 states at paragraph 5.1 that "[t]his standard classifies soils from any geographic location into categories representing the results of prescribed laboratory tests to determine the particle-size characteristics, the liquid limit, and the plasticity index." A13. 9. ASTM D 2487 defines GW as "Well-graded gravel" and as "Well-graded gravel with sand," GP as "Poorly graded gravel" or "Poorly graded gravel with sand," SW as "Well graded sand" or "Well-graded sand with gravel," SP as "Poorly graded sand" or "Poorly graded sand with gravel," GP-GM as "Poorly graded gravel with silt" or "Poorly graded gravel with silt and sand," SP-SM as "Poorly graded sand with silt" or "Poorly graded sand with silt and gravel," and GM as "Silty gravel" or "Silty gravel with sand." A15. As such, ASTM D 2487 defines the terms GW, GP, SW, SP, GP-GM, SP-SM, ASTM D 2487 without reference to the presence or absence of lead or paint chips containing lead 2

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in those soils. 10. Section 02300-1.4.2 of the contract, which is entitled "Unsatisfactory Materials," provided as follows: Materials which do not comply with the requirements for satisfactory materials are unsatisfactory. Unsatisfactory materials also include man-made fills; trash; refuse; backfills from previous construction; and material classified as satisfactory which contains root and other organic matter or frozen material. The Contracting Officer shall be notified of any contaminated materials. A9. 11. Active understood, based upon Section 02300-1.9, that Active would be responsible for transporting unsatisfactory materials and disposing of them outside the limits of Government-controlled land. A66-67. 12. Active understood, based upon Section 02300-1.9, that Active was responsible for the disposal of satisfactory material authorized to be wasted outside the limits of Government-controlled land. A67-68. 13. Notwithstanding the foregoing, Active did not assign any dollar value in its bid to the costs of transporting soils off the immediate project site. A45. 14. On or about September 26, 2003 Skanska sent RFI 318 to the Army Corps of Engineers. The RFI stated as follows: Due to a surplus in satisfactory soils on the project, approximately 15,000 cubic yards, Active is requesting permission to place a portion of this material in the low areas next to the revised location of the North irrigation vault per FY03 RFI#25. Active is also requesting that they be allowed to remove the remaining material from the project site. Please note that this work will be done at no cost to the Government. A23.

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15.

The Government's response to RFI 318, authored by James Packard, stated as follows: "Fort Lewis has no problem with us depositing surplus satisfactory soils in the low area, however it must be kept below the level of the road and they would like to have it topsoiled and seeded. Coordinated with Larry McVay of Public Works 1 Oct 03." A23.

16.

Skanska subsequently submitted RFI 318R, which stated as follows: Due to a surplus in satisfactory soils on the project, approximately 15,000 cubic yards, Active is requesting permission to place a portion of this material in the low areas next to the revised location of the North irrigation vault per FY03 RFI#25. Active is also requesting that they be allowed to remove the remaining material from the project site. Please note that this work will be done at no cost to the Government. Post Note: In response to conversation between Jason Hynes and Doug Mcniesh with Skanska and Jim Packard and Tom Wilkin with the COE on 10/3/03, Active has noted that approximately 5,000 cubic yards of soil will be spread over the North irrigation vault. Stripping and hydroseed will be placed over the relocated soil. Active is requesting to remove 10,000 cubic yards of soil from the Post. Please confirm that this is acceptable.

A24. 17. The Government's response to RFI 318R, authored by James Packard, stated follows: Fort Lewis has no problem with us depositing surplus satisfactory soils in the low area, however it must be kept below the level of the road and they would like to have it topsoiled and seeded. Coordinated with Larry McVay of Public Works 1 Oct 03. Post Note: Confirmed. Regrade elevated area to grade to existing catch basin and/or add rings to adjust height of same. Continue erosion control around catch basin. A24. 18. When James Packard was asked by plaintiff's counsel during his deposition whether he understood that RFI's 318 and 318R "dealt with how to dispose of 15,000 cubic yards of

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stockpiled soil on the project," Mr. Packard responded, "No, sir, that was not the intent of this particular RFI." A70. Mr. Packard explained that "this is a confirming RFI. We had had some verbal discussions about filling in a low area behind our building to get rid of some of the surplus materials. And Skanska was in the habit of, whenever we had a verbal conversation, of following it up with an RFI to confirm it in writing. And this RFI was written by them to confirm a conversation between Doug McNiesh and Jason Hynes and myself, about disposing of some of that material in that pile in this lower area behind our building . . . . We had no conversations about removing the entire pile from the site, verbally." A70. 19. Asked whether Skanska ever gave him a "written request to remove excess or satisfactory soils from the project," Mr. Packard responded, "No, sir. I don't consider this a written request." A70-71. 20. The following exchange occurred between plaintiff's counsel and Mr. Packard during Mr. Packard's deposition with respect to the Government's response to RFI 318: Q. So at least part of [RFI 318] constitutes a request being transmitted by Skanska of Active to be allowed to remove the remaining material from the project site, correct? A. Yes, sir, that's the way it reads. Q. And in your response, you didn't mention anything about Active's request to be allowed to remove the remaining material from the project site on RFI No. 318, do you? A. No, sir. Q. Is there some reason that you did not respond to that request? A. Yes, sir. This was supposed to be a confirmation of our previous conversation. We had not talked about moving the entire pile, we only talked 5

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about putting it in the low spot. A71. 21. The following exchange occurred between plaintiff's counsel and Mr. Packard during Mr. Packard's deposition with respect to the Government's response to RFI 318R: Q. And then [RFI 318R] proceeds on to say, "Active is requesting to remove 10,000 cubic yards of soil from the Post. Please confirm that this is acceptable." So the only thing that they were asking, if it was acceptable, is the one thing that you hadn't discussed yet, and that's the removal of the 10,000 cubic yards of soil from the post; isn't that true? *** A. Okay. I did not answer that question, the one that says "Active is requesting to remove 10,000 cubic yards of soil from the Post." A72. 22. The following exchange occurred between plaintiff's counsel and Mr. Packard during Mr. Packard's deposition with respect to the Government's response to RFI's 318 and 318R: Q. So they asked you in 318 for permission to remove 15,000 cubic yards from the post and you didn't notice that, and you didn't respond, correct? *** A. I didn't give it any credence at the time. Q. And then they sent you a revised copy, 318R, because you haven't fully responded the first time, and again asked for permission to remove 10,000 cubic yards from the post, to which you responded, "confirmed," and yet your testimony here today is that once again, you ignored that part of the request, and the confirmation was merely confirmation of something you had already agreed to with the contractor. That's your testimony? A. Yes, sir . . . . A72. 6

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23.

On or about March 3, 2004, Active received a proposal from ESE Corporation "propos[ing] to remove approximately 15K cubic yards of stockpiled surplus soil . . . . Material to be transported by ESE and others to be utilized as preload material." A25.

24. 25.

On March 23, 2004, the Army Corps of Engineers sampled project soils for lead. A28. On April 7, 2004, the Army Corps of Engineers issued a Stockpile Characterization Report ("Report") "to determine whether the soil can be reused and under what circumstances, and what type of disposal facility would be required." A27.

26.

According to the Report, the soil was "not grossly contaminated with lead, but that [lead] paint ships were randomly mixed in with the soil," and that the soil "contain[ed] some total lead concentrations exceeding . . . unrestricted use criteria . . . . However, the soils do not appear to be a `dangerous waste' . . . and do not need to be handled as such." A29.

27.

The Report stated that "it would be beneficial to both the contractor . . . and Fort Lewis to dispose the soil on base. By disposing the soil at the Fort Lewis landfill, transportation costs are reduced and disposal costs are significantly reduced. The Fort Lewis landfill is currently trying to close its cell #6 at Landfill 5. They need soil to bring the cell to grade and would have to go off-site to acquire soil. Because this stockpile is not considered a `dangerous waste," it can be used at the Fort Lewis landfill." A30.

28.

The Report further provided that "[i]f it is decided that off-site disposal will be used, most Subtitle D landfills will be able to accept this waste." A30.

29.

In light of the reuse and disposal recommendations contained in the Stockpile Characterization Report, Army Public Works mobilized to find a use for project soils

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within the limits of Fort Lewis. A31. 30. Army Public Works ultimately concluded that the minimally contaminated soil constituted "clean fill" that could be disposed of at Landfill #2, a location on Fort Lewis, as fill covering hazardous substances. A33, A78-79. 31. The nearest Class D landfill outside Fort Lewis is in Graham, Washington, approximately 31 miles from the base. A79. 32. According to Section 01410-3.5.2 of Skanska's contract with the Government, "[c]lean fill materials shall be disposed of on Fort Lewis at a site as directed by [Public Works], Engineering & Contract Management Division. Clean fill shall not contain any items such as vegetative material, asphalt, concrete or metals." A5. 33. According to Jason Hynes, Skanska's 30(b)(6) representative, based upon Section 014103.5.2, the contractor was responsible for disposing of clean fill materials at a site as directed by [Public Works] Engineering and Contract Management Division, and that Skanska and its subcontractors were to provide for the disposal of clean fill material on Fort Lewis within the total contract price. A62. 34. Both Skanska and Active realized that, as between the contractor and the Government, only the Government could determine what constituted "clean fill" within the meaning of the contract. A49, A60, A65. 35. On April 16, 2004, the Government issued Serial Letter C-0018, informing Skanska that, although the Stockpile Characterization Report indicated that stockpile material was "not hazardous," but " must be disposed of in a Class "D" landfill if disposed of off Post." The Government further stated that "[i]n an effort to accommodate you in this manner,

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we are in the process of identifying sites on Fort Lewis where this material could be utilized." A35. 36. On or about August 3, 2004, James Packard informed Skanska that Landfill #2, a location on Fort Lewis, was being made available for project soils. A36. 37. On August 17, 2004, Skanska requested compensation for loading and hauling costs associated with the transportation of project soils to Landfill #2. A36. 38. On August 26, 2004, the Government explained to Skanska that there was no basis for additional compensation, because under Section 02300-1.9, hauling both unsatisfactory material and satisfactory material authorized to be wasted "outside the limits of Government controlled land" was a requirement of Skanska's underlying contract with the Government, and that "[t]he Government is offering to allow the material to be disposed of in Fort Lewis landfill #2 to mitigate any potential costs of disposal outside Government-controlled land." A37. 39. In response, Active ceased hauling project soils to Landfill #2, informing the Government that "Active has decided to discontinue hauling efforts until this [compensation] issue is resolved, as it poses no danger to our approved project schedule. Hauling will continue once we can reach agreement on this issue and trucks are available again." A39. 40. On August 27, 2004, Administrative Contracting Officer Arill Berg wrote to Skanska as follows: I understand that you have mobilized equipment to dispose of excess excavated soils from your project site and are disposing of it at the Fort Lewis Logistics Center. In my opinion, this direction by the Government alters the terms of the contract to mitigate possible future risk. You are directed to complete the 9

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relocation of this material to mitigate any potential demobilization and remobilization costs. At this point, we are operating on the assumption that this is either a credit or a no cost to the Government. If Skanska agrees that this is a credit (or feels this is an add), please provide a response within 30 days with documentation that would indicate positively how this element of work was included in the bid price. A40. 41. On two occasions during September 2004, the Government directed Skanska to complete the relocation of project soils "to mitigate any potential mobilization and demobilization costs," and because the location to which Skanska had moved the project soils appeared to be interfering with another project. A41-52 42. Active recommenced hauling project soils in October 2004. A43. Respectfully submitted, JEFFREY S. BUCKHOLTZ Acting Assistant Attorney General JEANNE E. DAVIDSON Director s/ Martin F. Hockey, Jr. MARTIN F. HOCKEY, JR. Assistant Director

s/ A. Bondurant Eley A. BONDURANT ELEY Trial Attorney Commercial Litigation Branch Commercial Litigation Division Civil Division Department of Justice 1100 L Street, N.W. Attn: Classification Unit, 8th Floor Washington, D.C. 20530 (202) 616-8254

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January 29, 2008

Attorneys for Defendant

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CERTIFICATE OF SERVICE I hereby certify that on this 29th day of January 2008, a copy of the foregoing "DEFENDANT'S PROPOSED FINDINGS OF UNCONTROVERTED FACT" was 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/ A. Bondurant Eley

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