Free Response to Cross Motion - District Court of Federal Claims - federal

Case 1:06-cv-00101-FMA

Document 34-2

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Page 1 of 36

IN THE UNITED STATES COURT OF FEDERAL CLAIMS JAY CASHMAN, INC. Plaintiff, v. THE UNITED STATES, Defendant. ) ) ) ) ) ) ) ) )

No. 06-101C (Judge Allegra)

PLAINTIFF'S REPLY TO DEFENDANT'S OPPOSITION TO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND OPPOSITION TO DEFENDANT'S CROSS-MOTION FOR SUMMARY JUDGMENT

SUPPLEMENTAL APPENDIX

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SUPPLEMENTAL APPENDIX INDEX PAGE 1 4 6 8 10 12 13 15 17 18 21 22 23 24 25 27 29 34 37 39 40 41 EC 1130-2-210 - pp. 1 - 3 Corps Letter Dated August 18, 2004 Corps Letter Dated August 19, 2004 Corps Letter Dated August 30, 2004 Corps Letter Dated November 29, 2004 Deposition of Ronald Conetta - p. 31 Deposition of William Bruce Wood - pp. 34 - 35 Deposition of William Bruce Wood - pp. 22 - 23 Cashman Dredge Plan Deposition of Richard Kiss - pp. 18 - 20 Deposition of Richard Kiss - p. 31 Deposition of Richard Kiss - p. 14 Deposition of Richard Kiss - p. 30 Deposition of Richard Kiss - p. 49 Solicitation Amendment No. 0005 Deposition of Harold Hawkins - pp. 52 - 53 Specification Section 02900 - pp. 2, 8, 11 - 13 Specification Section 01330 - pp. 10 - 12 Quality Control Survey Plan Deposition of John James Galli - p. 18 Deposition of Alex Dick - p. 28 Deposition of Paul Poirier- p. 17 DESCRIPTION

i

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INDEX PAGE 42 44 45 46 48 53 54 55 58 61 62 64 DESCRIPTION Corps Letter Dated November 22, 2004 Claim Exhibit 17 Deposition of William Bruce Wood - p. 53 EM 1110-2-1003 - pp. 4 - 13, 14 Deposition of Richard Kiss - pp. 47 - 51 Deposition of William Bruce Wood - p. 38 Deposition of Ronald Conetta - p. 51 Deposition of Ronald Conetta - pp. 23 - 25 Deposition of Mark Alton - pp. 11 - 13 Deposition of Steven Weinberg - p. 27 Deposition of Steven Weinberg - p. 10 - 11 Deposition of Richard Kiss - p. 18

ii

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CECW-OD/CECW~EP

DEPARTMENT OF THE ARMY U. S. Army Corps of Engineers Washington, D.C. 20314-1000

EC ii30~2-210

Circular
No. ii30~2-210

'\,JlL i\i4a¡t.~r~~~lmm'll" i~om ,.tXPffE;:,j..o", .!,J!~"ll!.æ",'2'Ol':£L"""",
" Proj ect Operations

1 October 1998

¡ 'lîl:n~¡k1!Pll!I!!!oo~2¡~
1. Purpose. This circular disseminates updated policies, revised accuracy standards, and technical procedures for hydrographic surveying, superseding portions of EM 1110-2-1003, Hydrographic Surveying. New technical guidance on the use and caiibration of acoustic mul tibeam survey systems is provided.
2. 'Applicability. This circular is applicable to USACE commands having responsibility for per forming or contracting hydrographic measurement, construction payment, or condition surveys on civil

works navigation or flood control proj ects.
3. References.

a. ER 1130~2-520, Navigation and Dredging Operations and Maintenance Policies.
b. EM 1110-1-2909, Geospatial Data and Systems.
c. EM 1110-2-1003, Hydrographic Surveying.

unlimi ted.

4. Distributi on. Approved for public release. Distribution iS

5. Background. Procedural guidance and accuracy standards for performing hydrographic surveys are contained in EM 1110-2-1003. Since this manual was last updated in 1993-1994, significant technological improvements have occurred in vessel positioning (Global positioning System), depth measurement (shallow-water acoustic multibeam swath systems), and near real-time data acquisition, editing, and processing systems. This new technology has been rapidly acquired by USACE commands and has resulted in significantly improved data accuracy and reliability.

6. Policy.

measurement and payment surveys is prescribed by ER 1130-2-520.

Mandatory use of EM 1110-2-1003 for dredging

The revis ed

accuracy standards and related technical guidance

000001

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EC 1130-2-210
1 Oct 98

contained in this circular supersede applicable portions of EM

1110-2-1003.

circular.

7. Scope. The following appendices are attached to this
a. Appendix:;;:'lf~J!¡¡t1;J!:S1ìJ!'ieY'..Li\'i,'e!'r.ãl1: standards and

Classifications. New survey classifications and accuracy

performance standard~'1W¡:~i2~§rt'i2dêv¡¡.itìp~d:llfor USACE work. These
accuracy standards supersede those currently shown in EM 1110-2-

1003.
b. Appendix B: Use of Acoustic Mul tibeam Survey Systems on Navigation, Flood Control, and Dredging Proj ects. This appendix disseminates policy for acquiring and using mul tibeam survey

systems on Corps navigation and flood control proj ects, for
1998.

design, construction, dredging measurement and payment, and project condition surveys. It replaces and updates EC 1130-2-205 that was first published on 1 July 1996 and expired on 30 June

As surance Procedures for Acoustic Mul tibeam Survey Systems. This
appendix describes current technical procedures for field calibration of acoustic mul tibeam systems. It contains recommended guidelines for quality control and quality assurance processes and allowable tolerances. Criteria contained in this appendix is guidance, not policy.

c. Appendix C: Field Calibration Procedures and Quality

8. Proponency. This circular is issued jointly by the
Operations Division and the Engineering and Construction Di vision, Directorate of civii Works. The proponents for policy contained in this circular are CECW-OD (ATTN: Tom Verna) and CECW-EP (ATTN: Biii Bergen). Technical issues shall be addressed to CECW-EP (Bill Bergen) or CETEC-TD-G (Robert Mann). Comments, recommended changes, or waivers to this circular should be forwarded to CECW-EP. This circular may be reis sued prior to its

2

000002

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EC 1130-2-210
1 Oct 98

expiration. Portions of policy contained in this circular will eventually be incorporated in reference 3a. Technical guidance will be incorporated into reference 3b when it is next published
during FY 2000.

3 Appendices ERIC R. POTTS APP A - Hydrographic Colonel, Corps of Engineers
APP B ~ Use of Acoustic Multibeam Survey Systems

z~~/~

Survey Accuracy Standards Executi ve Director of civil Works and Classifications

on Navigation, Flood Control, and Dredging Proj ects
Procedures and Quali ty

APP C - Field Calibration

Assurance Procedures for
Acoustic Multibear Survey Systems

3

000003

,'
""
l

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~
United States Army Corps of Engineers Kil Van Kull Project Offce
Caven Point Marine Terminal

3 Chapel Avenue, Port Ubert'
Jersey City, New Jersey 07305

18 August 2004

Jay Cashman, Inc. 549 South St.
P.O. Box 692396 Quincy, MA 02269-2396
Subject: Contract No. DACW51-03-C-0014, Kill Van Kull & Newark Bay Channels Navigation Improvement Project, Phase II, Contract VIII (Area 8), Governent Survey of Acceptance Area

4A.
Serial Letter No. G-083

Gentlemen,

References:
a. Specification Section 00800, paragraph 1.15 "Final

Examnation and Acceptance"
b. Jay Cashman, Inc. Serial Letter

June 2004 (received 26 July 2004); Subject: Government Examination and Acceptance of Area 4A.

No . S-079, dated 26

c. USACE Survey Map No. 2669D/N, dated 16 August 2004
A hydrographic survey was conducted on 27 July and 9 August 2004 upon your notification that Acceptance Area 4A under the subject contract was ready for acceptance, ref. b. The results of the survey, ref. c, indicate that the contract grade elevation of -47.00 feet MLW in Aceptance Area 4A has not been achieved.
As a result, Area 4A cannot be accepted at this time. You are reminded that in accordance with Reference a, if required contract grade is not demonstrated after 2 Government surveys, the cost of a third, and all subsequent the rate of $8,200.00 per occurrence.

Governent sureys will be charged to Jay Cashman, Inc. at

000004
DJC009435

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;t ,.. ,
Upon satisfactory completion of the required excavation please formally notify this office. If you have any questions regarding this matter, please contact Mr. Mark Alton at (201) 433-9232.

Sincerely,

CC: CENAN-CO-D/Leach

Ronald D. Conetta, P.E. Resident Engineer

000005
DJC009436

,
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Case 1:06-cv-00101-FMA
\. #..-

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~ Jay Cashm, Inc.
549 South St.
5.

United States Army Corps of Engineers
KUI Van Kull Project Ofce Caven Point Marine Tenninal
3 Chapel Avenue,Port Llbert'

Jersey City, New Jers 07305

19 August 2004

P.O. Box 692396 Quincy, MA 02269-2396

Subject: Contract No. DACW51-03-C-0014, Kill Van Ku11 & Newark Bay Channels Navigation Improvement Project, Phase II, Contract VIII (Area 8), Government Survey of Acceptance Area

Serial Letter No. G-084

Gentlemen,

References:
a. Specification Section 00800, paragraph. 1.15 "Final Examination and Acceptance"

b. Jay Cashman, Inc. Serial Letter No. S-081, dated 28 June 2004 (received 28 July 2004); Subject: Government

Examination and Acceptance of Area 5.
c. USACE Survey Map No. 2678D/N, dated 19 August 2004
A hydrographic survey was conducted on 5 August 2004 (4ù survey) upon notification that Acceptance Area 5 under the subject contract was ready for acceptance,. ref. b. The results of the survey, ref. c, indicate that the contract grade elevation of -47. 00 feet MLW in Acceptance Area 5 has not been achieved.
As a result, Area 5 cannot be accepted at this time. You are reminded that in accordance with Reference a, if required contract grade is not demonstrated after 2 Governent surveys, the cost of a third, and all subsequent
the rate of $8,200.00 per occurrence.

Governent surveys will be charged to Jay Cashman, Inc. at

000006
DJCOO9437

\¡

, Case 1:06-cv-00101-FMA .
\. ~.

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. ..

Upon satisfactory completion of the required excavation please formally notify this office. If you have any questions regarding this matter. please contact Mr. Mark Alton at (201) 433-9232.

Sincerely,
Ronald D. Conetta, P.E.
Resident Engineer

CC: CENAN-CQ-D/Leach

000007
DJC009438

,¿

Case 1:06-cv-00101-FMA
...

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1
õ

l'

United States Army Corps of Engineers KíI Van Kull Project Ofce Caven Point Marine Tennlnal 3 Chapel Avenue, Port Ubert'
Jersey City, New Jersey 07305

30 August 2004

Jay Cashmn, Inc. 549 South St.
P.O. Box 692396 Quincy, MA 02269-2396

Subject: Contract No. DACW51-03-C-0014, Kill Van Kull & Newark Bay Chanels Navigation Improvement Project, Phase II, Contract VIII (Area 8), Government Survey of Acceptance Area

1/3A.
Serial Letter No. G-086

Gentlemen,

References:

. a. Specification Section 00800, paragraph 1.15 "Final
Exaination and Acceptance"
b. Jay Cashman, Inc. Serial Letter No. S-089, dated 24 Aug 2004; Subject: Government Examination and Acceptance of

Area, 1/3A.
c. USACE Survey Map No. 2692D, dated 30 August 2004
A hydrographic survey was conducted on 25 August 2004 upon' notification that Acceptance Area il3A under the subject contract was ready for acceptance, ref. b. The results of the survey, ref. c, indicate tht the contract grade elevation of -47.00 feet MLW in Acceptance Area 1/3A has not been achieved.
As a result, Area 1/3A cannot be accepted at this time. You are reminded that in accordance with Reference a, if required contract grade is not demonstrated after 2 Government surveys, the cost of a third, and all subsequent Government surveys will be charged to Jay Cashman, Inc. at the rate of $8,200.00 per occurrence.

000008
DJC009441

,
.'

Case 1:06-cv-00101-FMA
z

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,1

i

~

Upon satisfactory completion of the required excavation please formlly notify this office. If you have any questions regarding this matter, please contact Mr. Mark Alton at (201) 433-9232.

Sincerely,

cc: CENAN-CO-D/Leach

Ronald D. Conetta, P.E. Resident Engineer

000009
DJC009442

"
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,.-'1

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.

,I

~ ~
Jay Cashmn, Inc. 549 South St.
Gentlemen,

United States Army Corps of Engineers Kil Van KuJl Project Ofce Caven Point Marine Tenninal
3 Chapel Avenue, Port Libert'

Jersey City, New Jersey 07305

29 November 2004

P.O. Box 692396 Quincy, MA 02269-2396

Subject: Contract No, DACW51-03-C-0014, Kill Van Ku1l & Newark Bay Channels Navigation Improvement Project, Phase II, Contract VIII (Area B), Government Surveys
Serial Letter No. G-104

References:
a. Jay Cashm, Inc. Serial Letter No. 158, dated 1 November 2004; Subject: Area 3 et al
b. Specification Section 00800, Special Contract Requirement 1.15 'Final Exaination and Acceptance' .
c. Specification Section 01270 'Measurement and Payment'

We have reviewed your letter concerning alleged "additional dredging" ref a.
Our review of the referenced 25 October 2004 survey results identified an area above the required contract grade elevation of -47 feet MLW. This "high spot" was determined to have been the result of your most recent activity in that area and was identified as requiring removal.
Your attention is called to Ref b which states requirements for acceptance. This paragraph states in part: U_A final examination will be conducted by the Contracting

Officer...Should any shoals, lwns, be disclosed by this
examination, the contractor will be required to remove same. Also, Paragraph 1.2.2.2 of ref c allows for payment of dredged materials up to 1.5 feet beyond the contract depth of -47 feet
MLW.

000010
DJC009472

-,

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.

.

"
J

Á
Our direction to you for the removal of the aforementioned "high spot" is consistent with the contract

requirements and considered appropriate.

If you have any questions regarding this matter, please contact Mr. Mark Alton at (201) 433-9232.

Sincerely,
Ronald D. Conetta. P.E.
Resident Engineer

CC: CENAN-CO-D/Leach

000011
DJC009473

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1

R. Conetta

31

2

po i n t .

From the beginning, no, I was not

31 aware of it.
4

Q

But at some point during the

5 I performance of the project you became aware of

6 1 it?
7 8

A
Q

Yes, it's -- yeah.

Do you recall seeing any of the

9 1 pre acceptance 'surveys that Cashman submitted

10 I that included the notation average sounding?
11
A
Q

That I don't recall.

12

Did anyone who worked for you

13 I mention having seen such notations on pre

14 I acceptance surveys?
15 16
17
A

I don't recall that they did, but

well, I don't recall that they did.

Q Do you recall anyone from the

18 I Cashman organization coming to you during the

191 performance of the project and asking you what
20 I data processing method the New York District

21 I was using?
22
A
Q

Specifically, no, I don't recall.
Do you recall telling anyone at

23

24 I some point that the average sounding method

251 was being used by the New York District?
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Case 1:06-cv-00101-FMA

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Page 17 of 36

Wiliam Bruce Wood
Page 35
1 2 3

Q.

What did they tell you?

A. Q.

They'll get back to us.
Was the issue raised before you began work on
the contract?

4
5
6

A. Q.

No.
Can you give me an estimate of the time frame
when the issue was first raised?

7
8

A.
Q.

Around the beginning of '03.
Do you know what month?
January, February.

9

10 11
12

A. Q.

Did the issue continue to be raised at weekly

meetings?
A.

13 14 15 16 17 18

At first when we brought it up, it kind of
disappeared until we started getting into
submitting areas for acceptance towards the
summer of '04, I believe.

Q.

Were you told anything other than that Mark,

Sam, and Ron would get back to you?

19 20 21
22
23

A.

We really didn't have a definitive answer until

it was the end of August, September, and finally
got something in writing, I believe, in October.
Q.

Did any employee of the Corps ever tell you

personally that the average method would be used
to process acceptance surveys?

24

ESQUIR DEPOSITION SERVICES DC 1-800-441-3376 MD 1-800-539-6398 VA 1-800-752-8979
000014

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Wiliam Bruce Wood
Page 22

Q. Did Cashman perform surveys other than progress
surveys for payment?

A. Yes.
Q. What type?
A. We would go out and survey every day areas that

were dredged the day before.
7 8 9

Q.

Why would you do that?

A.
Q.

To check the grade.
Did Cashman survey entire areas of the project
before submitting them for acceptance?

10

11
12
13

A.
Q.

We would - - I don i t understand the question.

Okay. Would they do a survey of a whole proj ect
area at once prior to submitting it for
acceptance by the Corps?

14

15
16

A.

We would survey an area that we felt was to
grade. We wouldn i t survey an area that we

17
18 19 20
Q.

didn i t think was to grade.
Right. That i s my question, when you thought it

might be to grade.
A.
Q.

Yes.
How deep were the dredge cuts initially set for
the KVK 8 contract?

21
22 23 24

A.
Q.

On the screen of the dredge?

Yes.

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Case 1:06-cv-00101-FMA

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Section 02900
DREDGE PLAN
Captain A.J. Fourier

Dredging wil be accomplished with the Dredge "Captain AJ. Fourner" using a 7

CY backhoe style bucket for the HARS materiaL. A Liebher 994 excavator wil be the prime mover. The cut sheets are attached showing a plan view ofthe cuts. The basic cut width is 50 feet. Dredging wil be undertaken to the design depth plus 1.5 foot or 48.5 feet MLLW. Material wil be placed in a scow and taken to the HARS for disposaL. Each scow wil be equipped with a scow monitoring system,

Horizontal and vertical control wil be maintained via an IHC gnidace system. This system incorporates a Real Time Kinematics Global Positioning System and
is a satellte based state of the ar positioning system. To provide accurate

positioning on all three axes the system integrates the satellite position with the
readings from the angle sensors to provide the opertor with a cross section and
plan view of

the bucket position.

Dredge cuts wil initially be set for -48' MLL W to avoid over dredging. The New Jersey Mercator state plane 1983 coordinate system wil be the basis for the horizontal coordinates. Vertical contrl wil be determined by using a Hazen Electronic Tide Gauge adjusted for Mean Lower Low water and input into the IRC RTK guidance system.

Daily sureys wil be conducted ofthe areas completed the prior shift. The surey results wil be given to the dredge Captains and the equipment operators. The results of the surey wil be used to critique the methods used to complete the work and make any needed adjustments to the method, resulting in a more
effcient process.

000017

PJC 0004617

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17
y

1 2

R. Kiss 18
associa ted wi th this particular contract or
Q

31 another one. I was consulted on some minor

41 issues, minor questions.
5

Would it be correct for me to

61 assume that with regard to surveying the 71 language and contracts it was sort of boiler
81 plate across the KVK8 projects?

my

9

A
Q

That sounds about right, yeah.

10

Do you know whether the KVK8

11 I contract did indeed include any measurement 12 I and payment provisions stipulating the type of

13 I survey system that was to be used?
14

A
Q

No, I don't.

15

Do you know whether this engineer

i
~e

16
17

circular defines the accuracy that the Core of
Engineers surveys are required to meet?
A

18
:i

Yes, it does.

I would like to

19

qualify that.
Q

20

Sure.
It's always our feelings wi thin

all
of
ow

21 22 23
24

A

the New York district that it defines minimum

cri teria.
Q

I'LL direct your attention to page
You see the table

25

A3 where there's a table.

LEX REPORTING SERVICE

800-608-6085
000018

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P'''

1

R. Kiss

11 1

2 I Al in the middle of the page, Mr. Kiss?
3
4

2
3
4

A
Q

Yes, I do.

In the first column under class

51 one there is a column, hard material, do you

5
6

61 see that?
7
8

A
Q

Right.
It speaks in terms of depth

7 8

9 I accuracy and in one place it says acoustic
10 I depths greater than forty feet plus or minus

9 0

111 one foot, is that an indication of the
12 I accuracy that's to be achieved?
13
A

11
L2

I believe that's an indication of L3

14 I the minimum requirements and what they feel iSi4
15
16
17

the
tha t.
Q

we always felt we did much better than i5
16

Better in what sense?

17

18

A

We felt that our product was good l8
'.,1 ;

19

to at least two tenths of a foot.

19

20
21 22

Q In other words you felt that if ÎO
~
,J

you surveyed an area that showed a hit of twol1
~

tenths of a foot that that was accurate?
A
Q

2

23
24

Yes.
Even though that was a tighter

3
4

25 I tolerance than at least this table required? .5
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1. 1
2 3

R. Kiss

20

A Ab sol ute 1 y .

Q Is the fact that you felt you
could achieve that tolerance something that
was co mm u n i cat e din any 0 f the p 1 a n san d

ss

you

I:
6
7
S

specifications on the KVK8 projects that your

aware of?

A Not that I'm aware of.
Q In your job did you have much
interaction with the dredging contractors who
were performing these projects?

ic

inus

t:
11 12
3

A Only during meetings that were
held here at the KVK8 office.

on of

eel

is 14

Q What sort of meetings?
A Whenever there was a problem about
surveys or questions about surveys they would
call us in and try to resolve those issues.

than

5
6 7

good ls
9

Q Did you have any working
relationships with any of the people from the
various companies over the years?

.t

if to
two i:

of
?

A Our contact was not that
consistent so I would say no.

3

Q i s there any particular dredging
contractor who you felt had more experience

ter
ired?

i:

than another in doing these proj ects for the
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R. Kiss
1

31

1 2

2 3
4

method?
A
Q

3

No.
4

5 6

not? I stated For the very reason A to come in that if the ship is going before,
Why

5
6

7
8

7 I and hit something it's going to hit the
8 I shoalest thing out there, not the sounding
9 i closest to the center of the cell. What kind of material are we Q 10 I dealing with here for the most part? 11
12 I understand that some of it is rock, what else

9

10

11
12

13
14

131 generallY would you have been dealing with?
14
A

There's some soft material, but as

15
16
i7

15 i far as I was concerned everything here was 16 I rock, that had to be my attitude. I can understand that you might be Q
17

18

18 i concerned about a vessel striking rock, but

19 20 21

19 i would you also have concern about a vessel

20 I striking soft material? Not to the same degree, but yes. A
21
22
Q

Why?

23

A

We don't want to strike anything

24 I out there and we want to make sure the
25 i information we provide is the most accurate.
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Page 25 of 36

13

1

R. Kiss
A
Q

14

2

Yes.
For example?

'm

3
4

this I that

A

Manufacturers guidelines as to how

5

to utilize the equipment that was within the

61 system.
7

Q

Did the New York district have

81 it's own way of doing things that might have
9 I differed in some ways from the circular?
a

A
Q

Yes.
Would that have involved the

in

1

2 I manner in processing data?
13
A
Q

Yes, I believe so.
What would you say was different

Lssued

14

R5 I or unique about the way New York did things?
16
A

Because of the nature of KVK8 we

R7 I realized early on that it was important to
18

produce the most accurate survey possible.
quality control of the product that came out

As

on
:ie

:L9
¡

a result our initial thrust was to insure the

fa
¡

?1
1

of the field.

We took extensive pain to make

t2

sure the data we received out of the field was

re

,

t3
t4
¡

both reproducible and accurate.

We instituted

a lot of quality control procedures that were

t51 not in the manual and in fact that were
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29

i
2

R. Ki s s
Q

30

In other words three feet by three

n

3
4

feet roughly?
A
Q

been

Yes.
Shot point depth nearest the bin

or
on

5

61 centroid shall be used, what does that mean
7
8

"nearest the bin centroid?"
A

Again, there are many ways to
This statement is saying

put

9

present the data.

lly
I

10

that the data, that sounding closest to the

~1 I center of the cell should be used.
,f
?
12
Q

And then it goes on, after a

13
14

semicolon, to say "not average or minimum or

shoal base depth."

And yet, if I understood

;¡e

15

your testimony, the New York district was

161 using the minimum or shoal base depth?
=s
17 18

A
Q

Yes, absolutely.
Was that not in contradiction to

191 what the statement in the manual said to do?
be
o

A
Q

Ab sol ute 1 y .

than
(Ou

21 22

Did you need any kind of special

authority to do that?
A

)ne
~r .

23

No, guidelines did not write out a

241 requisite.
25

Q

Did you ever use the centroid
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1

R. Kiss

49
L

2

clauses for insertion, would I be correct in
my recollection?
A
Q

3
4

Yes, you would.

4

5
6

1'11 direct your attention to page

5
6
7 8

1145, which I think is the last page, and
there's a chart there that provides

7
8 9

recommended depth selection and data

processing?
A
Q

9

10 11
12

Right.
First indented listing, "depth

10 11
12 13
14

selection method used to select representative
shoal

13
14

est depth from multiple depths of the
So this manual is making it clear that

cell."
A
Q

15 16
17

tha t' s what' s recommended?

is
16
17
18 19 20

Yes.
No longer saying, as earlier

18

versions did, that minimum should not be used
or centroid should be used, that's a change, I

19 20
21 22

take it?
A

Everybody finally saw things my

21
22

way.
Q

23
24

So you're recommendations led to

23
24
2S

this change in the manual?
A

25

Yes, or at least had a lot of
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AMNDMENT OF SOUCITATIONIMODIFCATION OF CONTCl
I i. CONTRAJCT ID CODE

I PAGE OF PAGES
NO.(rfapplicable)

1 I 2

2. AMENDMENT/MODIFICATION NO.

3. EFFECTIVE DATE

4. REQVISITION/PURCHASE REQ_ NO
W16ROE.2338-139
IS. PROJECT

0005
6. ISSUED BY
USA ENGINEER DISTRICT, NEW YORK

14-Mar-2003
CODE

DACW51

7. ADMINISTERED BY (irotherthan item 6)

CODE I

ATTN; CENAN-CT ROOM 1843 26 FEDERAL PLAZ (DAeW51)
NEW YORK NY 10278-090

See Item 6

8. NAME AND ADDRESS OF CONTRACTOR (No., Street, County, State and Zip Code)

X 9A. AMENDMENT OF SOLICITATION NO.

DACW51-03-B-0004

X 98. DATED (SEE ITEM 11)

21-Jan-2003

lOA. MOD. OF CONTRACT/ORDER NO.

roOF

lo,rn
o

lOB. DATED (SEE ITEM 13)

11. THIS ITEM ONLY APPLIES TO AMENDMENTS OF SOLICITATIONS
Offer WThe abo~-e numbered solicitation is amended as set forih in Item 14. The hour and date specified forreceipt of is extended, G) is not extended.

fa) By completing hems 8 and 15. and returning_copies of

Offer must acknowledge receipt of this amendment prior to the hour and date specifLed in the solicitation or as amended by one of tlie following methods: the the amendment: (b) By acknowledging receipt this amendment on each copy of offer submitted; of

or(c) By separate letter or telegram which includes a reference to the solicitation and amendmenl numbers. FAILURE OF YOUR ACKNOWLEDGMENT TO BE

RECEIVED A TTHE PLACE DESIGNATED FOR THE RECEIPT OF OFFERS PRIOR TO THE HOUR AND DATE SPECIFIED MA Y RESULT IN
REJECTION OF YOUR OFFER. Tfb~ virtue of made letter, this amendment you desire to change offer already submitted. such change may be by telegram or an

provided each telegram or letter makes reference to the solicitaiion and this amendment, and is received prior to the opening baur and date specified.

12. ACCOUNTING AND APPROPRIATION DATA (Ilrequired)
13. THIS ITEM APPLIES ONLY TO MODIFICATIONS OF CONTRACTS/ORDERS. IT MODIFIES THE CONTRACT/ORDER NO. AS DESCRIBED IN ITEM 14. A. THIS CHANGE ORDER IS ISSUED PURSUANT TO: (Specify authority) THE CHANGES SET FORTH IN ITEM 14 ARE MADE IN THE CONTRACT ORDER NO. IN ITEM 10k

B. THE ABOVE NUMBERED CONTRACT/ORDER IS MODIFIED TO REFLECT THE ADMINISTRATIVE CHA~~~~ (such as changes in paying office, annronriation date, etc. ì SET FORTH IN ITEM 14, PURSUANT TO THE AUTHORITY OF FAR 43. 103 B . C. THIS SUPPLEMENTAL AGREEMENT is ENTERED INTO PURSUANT TO AUTHORITY OF:
D. OTHER (Specify type of

modification and authority)

E. IMPORT ANT:
where feasible.)

Contractor 0 is not,

0

is required to sign this document and return

copies to the issuing offce.

14. DESCRIPTION OF AMENDMENT/MODlFICATION (Organized by UCF section headings, including solicitation/contract subject matter
The purpose of this amendment is to incorporate the attached changes to the specifications. The date of receipt of bids, 25 March 2003 at 11 :00 AM, remains unchanged. All other terms remain unchanged as a result of this amendment.
NOTE: Bidders must acknowledge receipt of this amendment by the date speCified in the solicitation (or as amended) by one fo the following methods: in the space provided on the SF1442, by separate letter, or by telegram, or by signing block 15 below. FAILURE TO ACKNOWDGE AMENDMENTS BY THE DATE AND TIME SPECIFIED MAY RESULT IN REJECTION OF YOUR BID IN ACCANCE WITH THE
LATE BID, LATE MODIFICATIONS OF BIDS OR LATE WITHDRAWAL OF BIDS (FAR14.304).

Excent as nrovided herein all terms and conditions of the document

referenced in ttem 9A or IDA as heretofore chan ed. remains unchan ed and in full force and effect.

15A. NAME AND TITLE OF SIGNER (Type or print)

16A. NAME AND TITLE OF CONTRACTING OFFICER (Type or print)
TEL:
EMAIL:

15B. CONTRACTOR/OFFEROR
(Sip'nature ofnerson authorized to sÜm)

15C. DATE SIGNED

168. UNITED STATES OF AMERICA
RY

16C. DATE SIGNED

14-Mar-2003

(Siimature of Contracting Offcer'
30- I 05-04

EXCEPTION TO SF 30 APPROVED BY OIRM 11-84

STANDARD FORM 30 (Rev. 10-83)
Prescrbed by GSA

FAR (48 CFR) 53.243

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DACW51-03-B-0004 0005 Page 2 of2

SECTION SF 30 BLOCK 14 CONTINUATION PAGE

SUMMARY OF CHANGES
SECTION 00010 - SOLICITATION CONTRACT FORM

The following have been added by full text: AMENDM RNT #5

DACW51-03-B-0004
Amendment No.5

Bid opeing date is 25 March 2003 at i i:oo AM" local time,
The following changes shall be made to the specifications.
SECTION 02900

I-Replace paragraph 5.1.4 in Amendment No.4 with the paragraph below.

5. t.4 The dredged material was characterized by testing cores down to -48.5 ft. MLW. Material should not be dredged below this depth. Should specific circumstances require the removal of material below -48.5 ft MLW, the Contracting Officer and the Contracting Officer Representative shall be notified. Potential environmental consequences from dredging below -48.5 ft ML W could result in violations ofthe Ocean Dumping Provisions oftbe Marine Protection, Research, and Sanctuaries Act (33 V.S.C. §§ 1401-1445) and may lead to a federal enforcement action.

(End of Summary of

Changes)

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;1

H. Hawkins

52

A There was a degree of over depth.
It's required in our Government estimates to, you know, you know, factor in what will be,

you know, taken out.

I would be shocked if

they didn't, but I'm pretty sure they did.

Q Do you recall whether there were
some environmental or other restrictions that

prohibited dredging below the allowable over
depth in the KVK8 Project?

A Yes, we did not have and we still
do not have the environmental clearances to go

down below the forty -- forty-eight foot

depth.

I forget how much it was

characterized, but, you know, we didn't and we

don't have the authority to really do a fifty
foot project in the old Area 8 or what will be

181 SNB2.
19
Q

As I recall in the KVK8 Project

there are some pretty strong restrictions or

warnings to the contractor about exceeding the

2 I allowable over depth; is that correct?
3
4

A
Q

That's correct.
Were there similar restrictions or

5 I warnings to the contractors that performed
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1

H. Hawkins

53

1

2 I proj ects before KVK8?
3
A

2

Not as strong.

There was other
:\
5i

c
k

4 I language about, you know, not exceeding, but 5 I at the time that Area 8 was ongoing, EPA was
6 i very upset over Area 3 that had a tremendous 7 I amount of over digging that they viewed, so as

c
c

~\
8

t

8 I a result we did sort of stiffen up the
9 I language and warning the contractor to try to,

9

10 I you know, retain his enthusiasm.
11
12
Q

10

Was there over digging in KVK2?
In some degree.

11 12
3

A

The nature of the

13 I area in SKVK2, the nature of the material, you
14 I have boulders and in order to remove a boulder

14

151 that's the size of a truck, you're liable to
161 go way below what, you know, we require with

15 16
17

171 regard to depth in order to get the boulder
18 lout, so yes, there was some degree of over
19 I digging, but justifiable over digging.
20
Q

18

19 20 21 22

Did the fact that KVK8 on the one

21 I hand required project depth of forty-seven but

22 I on the other hand greatly discouraged any 23 I dredging below minus 48.5 make it even more

23
24

24 I difficult in your view for a dredging
25 I contractor to achieve the minus forty-seven?
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1) Dark gray to black, very soft, organic Silt and Clay, little to some Sand, frent shells and shell
fragments,
2) Red-brown, dense to very dense Sand and Gravei with little to some Silt and Clay, and occasional
Cobbles and Boulder.

3) Red-brown, soft to hard Silt and Clay, with little to some Sand and Gravel, and occasional Cobbles
and Boulders,

4) Cobbles and Boulders with a matrx of Sand, Silt and Clay occu in layer of vaing thckness. Cobbles and boulder tyically increase with depth and are generally most frequent imediately above the bedrock.

5) Dark gray, gray-green to red-brown, fine to medium grained Sandstone Bedock. Sandstones are tyically described as har to very hard with vaig degrees of fractung and weatherig. Conventional core generally indicate the sandstone to be slightly to modertely frctu with rock quality
designtions (RQD) rangig frm poor to goo.

6) Red-brown to gray Shale Bedrock. The Shae rages from soft to ver hard depending on the degree of weathering and other factors. Weatherig ranges frm slightly weather to decomposed. Conventional cores tyically describe the shale as highly fractued and broken with rok quality designations (RQD) rangig from ver poor to fair.

7) Dark gray-green to black Diabase Bedrock. The Diabase is tyically ver har and displays vaig
degrees of fracturig. Weathering tyically ranges from fresh (unweather) to slightly weathered.

8) Trash and debris - Trash, debris and other miscellaneous manmade and natu objects should be expected to be encountered during the coure of the drdgig. This materal may be encountere at any
location above the requir depth indicated on drwigs, The objects may include but ar not limited to, wood, sheet metals, glass, lumber, plastics, ties, hoses, chains, cables and hawsers.
3, Dredging Equipment.

3,1 Dredges.

It is anticipated that a varety of dredgig equipment wil be necessar for the removal of soils and rock

within the project ara, AIl material shaIl be removed with dredgig equipment appropriate for the
mateal encountered (i.e. clamshell, closed c1amsheIl "envionmental" bucket drdge, dipper,
powershovel, etc.), The use of

hopper and cutterhead dredges is prohibited.

3.2 Scow monitorig equipment (ADISS/ADISSPlay/ADISSLt).
The contractor is required, at hisiher own expense, to have all scows or other vessels used to trsport

dredged materal to designated placement locations (HARS, artficial refs, or other locations in the New York Bight or Lower Bay) equipped with scow monitoring equipment (ADISS/ADISSPlay/ADISSLt, from Science Applications International, Inc. (SAIC)). The ADISSPlay softare/equipment shall be

progrmed by SAIC personnel for use aboard any towing, or other, vessels used to transport dreged
materiaL. The contrctor shaIl ensur that the ADISS/ ADISSPlay/ ADISSLt equipment is opertional at

all times drdged materal is trsported frm the drdging site and while returning to the drdgig site the after ocean placement. Although the Corps Disposal Inspector (CDI) wiIl observe the operation of ADISS/ADISSPlay/ADISSLt equipment, operation and maiutenance of the ADISS/ADISSPlay/ADISSLt
equipment will be the respousibility of the dredgig contractor. It is the contrctuts responsibility to

ensure that the ADISS/ADISSPlay/ADISSLt equipment is in contiuous, opble coudition. Any

Ar- 2- Section 02900

2

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-suitable location for completing paperork associated with CDI dnties;
-a fully operational fax machine must be onboard the towing vessel for use by the CDI within 2 hour of each placement event, or available for use by the CDI at the drdging site within 4 hour of each
placement event;

--Any discreancies or other concers noted by the CDI regarding placement activities shall be reported

immediately, via cellular phone frm the tug, to the KVK Project Offce at (201) 433-9232 or 9228 and USACE HAS Manager at (212) 264-1853 orx5620.
Additional items related to the duties of the CDI may be requird at any time durg the peod of the

dredgig contract;
5.1 4 CDls shall submit a rert of all placement activities authorized by this contrct for each scow of

drdged materal with 6 hour of the time of placement at the HARS, reef, or other opewater
placement location. CDls must complete a USACE Transportation and Placement Log form (TPLF)
electronically, using the ADISSPlay or ADISSLt system, or manually if necessar. Logs should be faxed

each placement event. Any discrepancies or other concerns noted by the CDI regarding placement activities shall be hour of return to the drge site reorted immediately (via cellular phone from the tug, or with one-half or port) to the USACE HARS Manger at (212) 264-1853 or x5620, to the USACE Constrction Division
to (212) 264-4260, or hand deliverd to room 1937 of26 Federal Plaz within 6 hour of

POC, and a dredgig contractor POC not onboard the towing vessel. CDls may communicate with

towing vessel captains to help ensure correct placement of dredged materals. However, CDls ar not
authorid to operate towing vessel equipment, and in paricular, remotely opeated scow control

equipment. CDls ar reuired to use hand-held laser range finder (reuired to be aboard all towing vessels used for drdged material placement) to determine the tow lengts used at the time of dredged
materal placement. CDls are required to communicate with the towing vessel crew to obtain information

necessar to docwnent the position ofthe scow at the time placement occur. In the event of
the placement area showing the position of the scow at the time scow doors were first opened, including the distace from the towing
ADlSS/ADISSPlay/ADISSLt malfunction, the CDI must complete a map of

vessel to the scow (as deterined using the hand-held laser range finder), the towing vessel DGPS

position at the tie of intial scow door opening, the vessel direction of travel, and the bearng to the scow from the towing vesseL. Manually prepar maps, if necessary, associated with an ocean placement trp, should also be faxed to NY Distrct with the TPLF and other required docwnents, IfTPLFs (electronically or manually produced) and any other required placement docwnents are not received within 6 hours of each placement event, scows may be dirted to standby at the dredging site until all items have been received at NY Distrct
5.15 Specific Placement Grd Deils And Additional Placement Guidelines

More detailed placement gudelines and specific placeent grd information will be provided prior to

commencement of dredgig, parcularly at a preconstrction meeting of the drdgig contractor and
Corps. Additional placement gudelines and modifications may be provided to the drging contrtor at

any time durg the drdgig contrct.

6. Dredging and Disposal of "Non-rock materials" unsuitable for placement at the HARS
6.1 The "non-rock" dredged materal is composed of the materal identified in para. 2.2.1.2 item

nwnbers i thugh 4 that arc deposited within the drgig limits as shown on the contrct drawings is considerd unuitable for placement at the HARS,

Am2- Section 02900

8

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7) Should decantig of

water from barges be reuired before disposal, PANJ will make berng

ara(s) available for dewatering purose (Section 00903). The Contractor may use the berting ar

designated by the Contracting Offcer for this project wiless otherwise directed by the Contrctig

Offcer.

The New Jersy Marine Terminals Ber 63 at the Port Newark/lizabeth Mare Terinal is the
dewaterig site that NYJP A is providig for this contrt, A 400 feet bert locate on the nort side of the Elizabth chanel in New Jerey; is available for moorig a dewaterig scow. (Section 00903)

POC for the ber is Gregory Bnlthaup (973)-690-3482.
All opetion and mangement rues shall be in accordance with the requiements specified in the State of New Jersey Water Quality Certficate (wQC)/Federal Consistency and NY WQC (Section 00902).
non-rock drdged materal to the disposal facility and Point of Contact to the Contrcting Offcets Representative at least 30 calendar days prior to
6.7 The Contrctor shall submit a schedule for disposal of

the commencement of the dredgig of said materiaL. The schedule shall indicate the anticipated flow of

materal.

6,8 The towing vessel captain is responsible to ensur, prior to the depart of the towing vessel from the dredge site, that the forecasted weather and sea conditions at the expected time of arval at the
disposal facility will allow for safe conditions, If upon arval at the disposal site facility, prevailing

conditions ar such tht deviation from the operting procedur of the disposal facility is necessar to ensure the safety of the opertion, the responsibility for the deteination of a minimum safe speed for
the towing vessel, and a minimum safe distance will rest solely with the captain of the towing vessel
6.9 The Contractor shall be respnsible for the transport of dredged material and the tie -down of the
scow to the designated location identified by the disposal operator. The Contractor is required to tae all

necessar precautions for the safety of, and to provide necessar protection to prevent damage, injury or

loss to any pern or prope, including but not liited to: a) All employee of the Contrtor, public,
and other perons and entities who may be affected by thereby; b) the physical strctue(s) in surowiding

the navigation chanel; and c) other proper at the upland disposal facility, including pier, docks, berths,

vessels, markers, lights, buoys, and other strctures.

6.10 The drdging and placement logs for drdged materal wisuitable for placement at the HARS
placeent shall be completed and attached to the Contractots daily CQC rert and submitted on a daily basis,

6.11 The USACE certified drdge inspector shall verify acceptance of the dredge materal wisuitable for the placement at the HAS from the upland facility at the time of arval.

7. PLACEMENT OF DREDGED MATERIAL AT OPEN-WATER PLACEMENT SITES
Dredged Material Placement Protocol for the HARS. For CLIN OOOIAG and CLIN OOOSA and CLIN
0006A the followig reuients ar applicable. All non-rock dredged material overlying the rebrown being drged with an "Environmental" Bucket shall be removed wider silt and clay that is capable of

CLIN OOOlAC, CLIN OOOSB and CLIN 0006C

Al of the prvisions, gudelies, reements, and instrctions (PGRIs) in this section of the contract specification must be completecomplied with before any dredged material may be placed at a
designate ocean placement site. Many of the PGRIs must be completed/complied with prior to the start

Am 2- Section 02900

11

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of dredgig. Any misplaced drdged materal deemed to constitute a potential hazard to navigation by the Corps will be the sole liability of the drdgig contrctor to remove, as directed by the Corps. 1ms would include, for exaple, placement of drged materal in a navigation chanel that results in a mound or causes an area of shallower water withi the chanel; or any dredged materal placed above a permitted

depth associated with an arificial reef. The drgig contrtor will assume all expenes and liabilties
associated with creatig mounds of drged material above a permitted depth at an arificial reef site and

expes and liabilties assoiated with brigig such mounds below peitted depths,
7,1 Personnel Notification: 1ms sectin of the contract specification must be provided to all contractor personnel workng on any aspect of openwater placement of dredged materal associated with this

project, includg peonnel loading scws at the drgig site, pennel workig on scows at the dredge

site, personnel onboar towig vessels at the drdgig site or while towig scows, including USACE NY

Dredged Materal (Corps Disposal Inspectors Open Water Disposal of (CDls)), and peronnel aboard scows beng towed. Al pennel associate with loading of scows, transportation of drged materal, and placement of drdged materal must be familiar with the
Distrct cerfied Inspectors of

guidelines and reuirements contained in ths porton of the contrct specifications. Prior to the start of dredgig, the contrctor must submit a letter to the NY Distrct listig the name, position title, and job descrption of each peron who wil be working on the towing vessels used to transport dredged material, each peson who will be loading the scows with drdged material at the drging site, and anyone else involved with scows at the drdge site or while being towed to the designated placement location. This letter must include verfication that each peron has been provided a copy of this portion of the contract specification, has read this porton of the contrt specification, and understands the requirements described in ths contract specification as related to their job duties. Additional guidelines and directives
may be provided at any tie durg the durtion of the drging project and will become par of the
contrct specifications.

7.2 Ocean Placement Locations: for BARS and ROCK
For CLIN OOOlAG and CLIN 0005A and CLIN 0006A: the Govenuent has identified the Historic Ara Remediation Site CHARS) for placement of drdged materal, approved for ocean disposal, removed
under this contrct. However, barges that contain less than 25% non-rock material (i,e" vessels which

contain 75% or more rock materal) should not be transported to the HARS. (Non-rock material is
defined as materal that is less than 2.5 inches in diameter.)

7,2,1 BARS
The Contrctor shall perform dredged material placement at specific locations withn the HARS, defined

by the followig peete coodiates:
Point LatitudeDMS LongitudeDMS LatitudeDDM LongitudeDDM B 40025' 23" N 730 53' 34" W 40025.38' N 73053.57' W D 400 25' 22" N 730 52' 08" W 400 25.37' N 73052,13' W F 40023' 13" N 73052' 09" W 40 23.22' N 73052.15' W G 40 23' 13" N 73051' 28" W 40023.22' N 73051.47' W H 40022' 41" N 73051' 28" W 40022.68' N 73051.47' W i 40022' 41" N 73050' 43" W 40022.68' N 73050,72' W L 40 25' 22" N 73050' 44" W 40025.37' N 730 50.73' W N 40025' 22" N 73049' 19" W 40025,37' N 730 49.32' W o 40021' 35" N 73049' 19" W 40021.58' N 73049.32' W 40021' 36" N 73052' 08" W 40021.60' N 73052.13' W Q T 40 22' 08" N 730 52' 08" W 400 22, i 3' N 73052,13' W U 40022' 08" N 73053' 34" W 40022.13' N 73053.57' W

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Case 1:06-cv-00101-FMA

Document 34-2

Filed 04/14/2008

Page 36 of 36

DMS ~ Degrees, Minutes, Seconds DDM = Degrees, Decimal Minutes
7.2.2 The Contractor will also use exact placement critera set by the New York Distrct Corps of Engineers. All placeent of drged materal within the HARS will occur in strct accordance with the
gudelines and locations attched to these specfications, and any futu updates when provided by

USACE, paricuarly at the pre-constrction meetg.
7.2.3 All non-rock material appoved for ocean disposal, excludig floatig debri and trh, shall be

tranorted to the HARS, unless otherwise directed.

7.2.4 Rock
For CLIN OOOIAL and CLIN 0006B: The Govenentha identified a reeC(section 00903) for placement of drdged rock (i.e., vessels that contain 75% or more rock materal) that is approved for
ocean disposaL. (See map in section 00903)
The rock material to be dredged, exclusive of all floatable mateal, will be disposed of at the Reef Site.

Note: The coordinates of the exact location of the grd used for placement of dredged materal at the
HARS will be provided durng the pre-constrction meetig and may be changed at any tie durng the

dredging project.

7,3 General Requirements: ALL PLACEMENT ACTIVITIES MUST BE RECORDED, AND REQUIREMENTS ADHERED TO, AS SPECIFIED BELOW.
a. Twenty four (24) hours prior to depar of the fit project vessel from port for the open water

placement of any drged materal, the Contrctor must notify the New York Distrct USACE by
telephone, Calls regarding departres must be made to the Dredged Materal Management Section at
(212) 2641853 or 5620. The Contractor must fuish the Contrctor name, project name, inspector name

and estimated time of depare.
b. The Contracting Office, or his Representative, reseres the right to have Corps of Engineers and/or

Environmental Protection Agency employees and other invited repreentatives accompany all trps to the

placement site to cerfy compliance with any contract specifications or envinmental regulations,

c. The Contrcting Offcer, or his authorize Repreentative, must give notice of sailing by telephone, or
via direct radio trsmission between the Contrctots tug and the US Coast Gu two hours prior to depar of a vessel from port. Telephone calls must be made to (718) 354-4088,

d. CD Is must submit reort of all placement activities authorized by ths contrt on the basis of one report for each scow of dredged material within 6 hour afer each placement event. Reports must be prited from the ADISSPlay system aboard the towing vessel and must be trsmitted via a cell phone the electronic form can link with the ADISSPlay system, and faxed to NY Distrct at (212) 264-4260. If not be prited, a hand wrtten form must be completed and submitted. Individua trp reprts must utilize
the USACE Trasportation and Placement Log Form (TPLF), which must be fully completed

electrnically on boar the towig vessel, or manualy if equipment failure prevents electronic
completon. Any discrepancies or other concer noted by the inpector regarding placement activities

must be reported immediately, via cellular phone from the tug, to the USACE Ocean Placement Manager at (212) 264-1853 or (212) 264-5620, the towing vessel captain, the dredgig contrctor POC not onboard

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