Free Motion for Partial Summary Judgment - District Court of Federal Claims - federal

Case 1:06-cv-00101-FMA

Document 28-5

Filed 12/14/2007

Page 1 of 32

Alex E. Dick
Page 20
1 2
3

Echoscan?
A.
Wel l, one reason was the - - I knew the Army

Corps New York District had used that system

4 5
6 7
8

previously. There were some advantages, like
the motion sensor was actually buil t into the

head of the transducer so there are no

offsets, kind of minimizes the opportunity for
errors that could occur due to that.
So it

9

was probably a little bit less expensive,

10 11
12 13 14
Q.

also, than some of the newer systems that were
coming out and we -- and, again, you know, we

knew it was used in New York Harbor, in that

area.
Did you view a demonstration of the adorn

15 16 17 18 19
A.
Q.

Echoscan prior to purchasing it?

Yes.
Where was that demonstration performed?
In Louisiana, Baton Rouge.
And what type of a demonstration did adorn

A.
Q.

20 21
22 23
A.

provide?
It -- they took us out on their boat and

surveyed an area where there were some known

obstructions and things that you would be able

24

to see clearly with a multibeam system. They

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000035

Case 1:06-cv-00101-FMA

Document 28-5

Filed 12/14/2007

Page 2 of 32

Alex E. Dick
Page 21

1 2
3

had the side scan, as well. So it gave you a
pretty good idea of what the capability of the
system was.
Q.

4
5
6

Did Odom provide any demonstration on
processing mul tibeam data?

A.
Q.

Yes.
When did --

7 8 9

A.

Not at that time. They did on-site, after we

purchased it.
Q.

10

Do you recall when that occurred?

11
12 13

A.

I'm going to say July 103. I mean, I just
knew that it was right around when we bought
it, but maybe June.

14 15 16 17 18

Q.

And what type of demonstration did they
provide regarding processing mul tibeam data?

A.

It was using the software that they

recommended and running through cleaning

files, tide reduction, software utilities for

19 20 21
22
23
Q.

doing what they call patch tests and

cal ibra t ion and that - - tha t kind of thing.
What type of software did they recommend?
It was Coastal Oceanographics, Hypack.

A.
Q.

Do you recall whether Odom discussed the
average method for processing mul tibeam

24

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000036

Case 1:06-cv-00101-FMA

Document 28-5

Filed 12/14/2007

Page 3 of 32

Alex E. Dick
Page 22

1

surveys?
A.
Q.

2
3

Yes.
What did they say regarding the average method
for processing mul tibeam surveys?

4 5
6

A.

That there was an average method, essentially.
They just explained that there are, you know,
various methods.

7
8

Q.

Did they discuss the minimum method for
processing mul tibeam surveys?

9

10 11
12

A.
Q.

Yes.
What did they say regarding the minimum

method?
A.

13 14

Well, they said that there's -- it's not
always used as a - - as a method because

15
16

they're -- it's not really representative of
wha t 's down there.

17
18

Q.

Did you attend any training regarding
mul tibeam surveys provided by the Army Corps

19

prior to KVK 8?

20
21
22 23

A.

No. I wasn't aware that there were any

available.
Q.

Who actually gathered the mul tibeam survey

data during the KVK 8 contract?

24

A.

Many employees took part in that. I did

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000037

Case 1:06-cv-00101-FMA

Document 28-5

Filed 12/14/2007

Page 4 of 32

EC 1130-2-210
1 Oct 98

of thenavigation coastal inland and Corps 926 of maintained wate . g., harbor proj ects. intracoastal
systems may optionally be used if available.

authorized or maintenance dredging proj ects containing 50ft sandi silt bottoms not judged to be hazardous to vessel hulls; or in proj ects with soft, featureless, and relatively continuous channel bottoms where gaps in coverage between survey lines are unlikely to yield potential hazards/ strikes. The vast maj ority

Dredge measurement, surveys are typically
investigation surveys of hazardous obj ects lying within the
authorized prism or proj ect depth should follow Class 1 survey accuracy and quality control standards. These surveys may also include precise investigation surveys of/around locks¡ dams¡ abutments, jetties, bulkheads, and other structures in a navigation proj ect. If full bottom coverage and/ or obj ect detection sweeping is required, then the standards for the most precise (Hard Material category) of Class 1 surveys should be followed. On critical surveys, 200% acoustic coverage is

performed by cross-section methods us single beam acoustic transducer systems. Acoustic multi-transducer or multibeam sweep
(3) Underwater Hazard Investigation Surveys, Detailed

recommended.
b. Project Condition Surveys (Class 2). The EM 1110-2-1003 definition of the types of surveys included within this category are unchanged; however, the accuracy standards and quality control criteria have been modified, as indicated in Tables A-1

and A-2.
c. Reconnaissance Surveys (Class 3). Reconnaissance survey accuracy and quality control standards currently defined in EM 1110-2-1003 are largely obsolete and have been revised under this circular. The purpose of these surveys (as defined in EM 1110-21003) is still unchanged--they represent an economical method of rapidly assessing the condition of a project. With LIDAR and multibeam acoustic technology, there is essentially no distinction between a Class 2 Proj ect Condition Survey and a Class 3 Reconnaissance Survey.
A-3. Revised Survey Accuracy Performance Standards. Table A-1 contains revised performance standards for Corps hydrographic surveying, covering all survey classifications. These new standards supersede those shovm in Table 2-1 (Maximum Allowable Errors for Hydrographic Surveys) of the current (1994) edition of

A-2

000038

Case 1:06-cv-00101-FMA

Document 28-5

Filed 12/14/2007

Page 5 of 32

EC 1130-2.-210
1 Oct 98

EN 1110-2- 1 0 03. These revised standards reflect current survey instrumentation, practices, and capabilities, whereas the standards and criteria in EN 1110-2-1003 are more representative of 10-year old hydrographic surveying technology--i.e., pre Global Positioning System and acoustic multibeam. In reality,

position and ficantly changed: only been modified.
These standards are considered).....) performance

standards 11 and are êlSurement process employed. In addition to performing standard survey quality

control calibrations of system components, some form of accuracy performance (or quality assurance) test should be periodically performed to demonstrate and document that these accuracy standards are being achieved _ In some instances, more rigid standards may need to be developed and followed to meet specific

proj ect requirements.
Surveys

Table A-I. Accuracy Performance Standards for Corps of Engineers Hydrographic

USACE SURVEY CLASSIFICATION Class 1 Class 2 Contract Payment Surveys P roj ect Condi tion (Dredge Measurement/Pavment) Hard Mat' 1 Soft Mat' 1

Class 3
Re co n

HORIZONTAL ACCURACY i (95% Confidence Level)

2 m

(6 ft)
:10.25 ft :10.5 ft

5 m

5 m

5 m

(16 ft)
:10.25 ft :10.5 ft :11.0 ft :12.0 ft

(16 ft)
:10.5
:11. 0

(16 ft)
:11. 0 :11. 0

DEPTH ACCURACY (95% Confidence Level)

Mechanical (d~15 ft) Acoustic (d~15 ft)
Acoustic (d~4 0 ft)

Acoustic (15~d~40 ft)

:I 1. 0 ft
:11. 0 ft

:12.0 :12.0
N/A

ft ft ft ft

:12.0 :13.0
N/A

ft ft ft ft

OBJECT DETECTION CAPABILITY (95% confidence)

cubic dimension 3 ~ 0.5 m ~ 1 m

BASE CONTROL NETWORK ACCURACY Primary horizontal DGPS USCG Radiobeacon DGPS System Supplemental horizontal 4 3rd order, Class I (1:10,000) Vertical controlS 3 rd 0 rde r FEATURE LOCATION ACCURACY (95% confidence) Topographic features 2 m (6 ft) (eg, bulkheads, dredging limits, etc) Fixed navigation aids 2 m (6 ft) (e. g., lighthouses, ranges, beacons) Floating navigation aids 10 m (30 ft)

A-3

000039

Case 1:06-cv-00101-FMA

Document 28-5

Filed 12/14/2007

Page 6 of 32

John James Gall
Page 29

1 multibeam process. It's a -- was a relatively new

2 technology.
3

Q.

So you did not have an opinion?
I did not know enough to have an opinion.

4
5

A.
Q.

Okay. Sure. At some point during work on the

6 proj ect, did you believe that the Corps would use the

7 average method for acceptance surveys?
8

A.

When we submitted the average soundings for

9 the material unsuitable for unconfined aquatic disposal,

10 and they were accepted and paid, at that point, we were
11 under the understanding that would be the method used.
12
Q.

Why did you decide to submit those materials

13 using the average soundings?
14

A.

Because the people that were directly involved

15 with this thought that would be the correct methodology.

16 They had some informal discussions with other people
17 that had been doing that type of work.
18
Q.

Who are those people that you're referring to

19 that were directly involved in it?
20
A.

The people whose depositions you have already

21 taken.
22
23 24
Q.

Okay. Mr. Dick?

A.
Q.

Mr. Gaudette, Mr. Dick.
Mr. Wood?

25

A.

No.

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000040

Case 1:06-cv-00101-FMA

Document 28-5

Filed 12/14/2007

Page 7 of 32

John James Galli
Page 37

1 2

A.

Normally, the depth of which the dredge cuts
because of the

are set changes almost daily as to

3 conditions. If you are attempting to minimize the
4 amount dredged, which was the mandate - - it was mandated

5 initially on this contract, and then it was changed to

6 advisory. But there was some considerable discussion
7 from the EPA that overdredging would be penalized, so
8 Cashman's attempt was to minimize the amount of material

9 taken.

10 So the normal thought process is to use the
11 soundings from the day before to determine how deep to

12 dig and to look at the material, specific material, as
13 to how deep to dig. So I don't remember day-to-day, but

14 it was often changed.
15
Q.

Do you know if it was changed as a result of

16 Mr. Conetta's letter?
17
18

A.
Q.

It was deepened.

Do you know by how much?

19

A.
Q.

No.

20

Okay. Did you meet with Mr. Conetta to
We discussed the letter at the next weekly

21 discuss this letter?
22

A.

23 meeting after it was issued.
24
Q.

Do you recall the nature of the discussion?

25

A.

No.

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000041

Case 1:06-cv-00101-FMA

Document 28-5

Filed 12/14/2007

Page 8 of 32

John James Galli
Page i 8 Okay. Prior to writing this letter, did Army

1

Q.

2 Corps of Engineers personnel tell you that the standard

3 of acceptance for the KVK 8 contract would be a matrix

4 of three by three average soundings?
5

A.

Three by three wasn i t mentioned, but average
Do you recall who from the Army Corps of

6 soundings were discussed any number of times.
7

Q.

8 Engineers told you that acceptance would be measured by

9 average soundings?
10
A.

I recall a number of people when asked that

11 question were - - did not respond directly.
12
13

Q.

Okay. Who didn i t respond?
Well, they did not respond. They said that it

A.

14 may be. Sandy McDonnel i (ph) and Ron Conet ta,

15 Mark Alton, Sam DiDato.
16

MR. WEINBERG: A-I-t-o-n. D-i-D-a-t-o. D-i

17 is lower case. Both Ds are capital. Sorry. Never

18 mind.
19 BY MS. KILFOYLE:
20
21
Q.

Do you recall when these discussions occurred?
There were two phases of the proj ect . One was

A.

22 material that was unsuitable for unconfined aquatic

23 disposal. That material went upland. The other was

24 material that was sui table for aquatic disposal. The
25 unconfined aquatic disposable material was done with
ESQUIRE DEPOSITION SERVICES DC 1-800-441-3376 MD 1-800-539-6398 VA 1-800-752-8979
000042

Case 1:06-cv-00101-FMA

Document 28-5

Filed 12/14/2007

Page 9 of 32

John James Galli
Page 19

1 average soundings, it was submitted to the Corps as

2 average soundings, it was accepted and paid for as

3 average soundings. Based on that information, we
4 proceeded with the rest of the work on the same basis.

5 And in some places, those sites went to final acceptance

6 grade.
7

Q.

Do you recall which specific areas of the

8 proj ect
9

A.
Q.

No.

10
11

- - by number? Okay.

A.

Almost the entire proj ect was overlaid with

12 the material that was - - that was unsuitable for 13 unconfined aquatic disposal.
14
Q.

Did you personally request that anyone from

15 the Corps clarify what method would be used for these

16 acceptance surveys?
17
18

A.
Q.

We did with this letter.

Right.
And this is stated in the letter, seven times

19

A.

20 we submitted soundings for acceptance. It clearly
21 stated on the document was that they were average

22 soundings, and in the transmittal letter asked if that 23 was the method that was accepted, and if it was not
24 acceptable, please respond. We never received an answer

25 other than the response to this particular letter.
ESQUIRE DEPOSITION SERVICES 1-800-441-3376 MD 1-800-539-6398 VA 1-800-752-8979
000043

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Case 1:06-cv-00101-FMA

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Document 28-5

000044
005269

Dec.1, 2003

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Filed 12/14/2007 Page 10 of 32

j

t' ¡,

Average sounding located in the ~e~ter of a 15' X 15' cell.

i

Case 1:06-cv-00101-FMA

Document 28-5

Filed 12/14/2007

Page 11 of 32

Alex E. Dick
Page 31
1

point at rock areas specifically. And then we
were also told that average would be used for
HARS material.
Q.

2
3

4 5
6

Do you recal 1 who told you that the average

method would be used to process acceptance
surveys for HARS areas?
A.
Q.

7
8 9

Ron or - - Ron or Mark Kucera, Ron Conet ta.
Do you recall when this discussion occurred?
In several of the progress meetings.

A.
Q.

10 11
12 13 14

Do you recall the time period of these

A.

discussions? I i m going to say fairly early on in the
proj ect .
I know after Area 1, because in

Area 1 I was told that that was actually
accepted on average.
Q.

15 16 17 18 19

Who told you that Area 1 was accepted on

average?
A.

I don't recall specifically, but again, it
would have been, you know, the individual s in
the weekly meetings.

20 21
22
Q.

Did you ever speak wi th anyone in the survey

branch regarding the method to be used to
perform acceptance surveys?
A.

23 24

Yes.

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000045

Case 1:06-cv-00101-FMA

Document 28-5

Filed 12/14/2007

Page 12 of 32

United States Army Corps of Engineers Kil Van Kull Project Offce
Caven Point Marine Terminal 3 Chapel Avenue, Port Liberte' Jersey City, New Jersey 07305

22 June 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), Partial Acceptance of Area 1

Serial Letter No. G-71

Gentlemen,

References:
a. Specification Section 00800, Paragraph 1.15, Final Examination and Acceptance. b. USACE Survey Map No. 2536D/N, dated 4 June 2004

Based upon your verbal request at our meeting on i June 2004, the issue of partial acceptance of Area 1 has been

eval ua ted .
It is noted that a Government hydrographic survey was conducted of Area i on 31 December 2003. The results of the reprinted survey, ref.' b, indicate that high spots remain at the eastern portion of' the area. Since the remainder of Area 1 is clear to "the contract grade elevation of -47.0 ft MLW and easily delineated, it has been determined that the portion of Area 1 between Stations 5+10 and 27+46.972 (eastern boundary line) is accepted as of 22 June 2004.

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

000046

DJC009411

'"

~ .9
'0 'b

DEPARTMENT OF THE ARMY NEW YORK DiSTRICT CORPS OF ENGINEERS NEW YORK. N.Y. 10278.0090

SURVEY

. K VK AND NEWARK BAY CHANNELS OF. NAViGATION IMPROVEMENT PROJECT
CON TR ACT 8 (A REA 1) S POT E LEV A T ION S
AFTER DREDGE SURVEY
SCALE:
ONE INCH = 1,00 FEET

Case 1:06-cv-00101-FMA

NOTE:

TEHESUINF'ORMATION DEPICTED ON THIS MAP REPRESENTS rHE

R L TS OF' SURVEYS MADE ON THE DATES INDICATED

ANCO~OCAN ONLY BE CONSIDERED AS I.NOICATING THE GENERAL ITiONS EXISTING AT rHAT TIME,

CO~RNOINATES REfER ro rHE NEW JERSEY MERCATOR STATE

PL E COORDINATE SYSTEM INAD1983l.
FIELO C"'''TOCA.,.''E!1

APPROVED: R.
V I RKMAA

3
APPROVED: M.
FORTE
CIVIL UoIGIJCEAING TECIoN1CI..",

SOEUNDINGS REF'ER TO rH,E PLANE ,OF' MEAN LOW WATER. TH PLANE OF' MEAN. LOW,' WATER IS 2,3 BELOW NGVD 29. THSEiNSDUNDING DATA DEPICTED ON THIS MAP WAS COLLECTED

DATE OF SURVEY: 8.9.17 &31 DEe 2003
FIELD BOOKS: 14186. 14180, 14178

U 1 G CLASS 1 SURVEY STANDARDS IN ACCORDANCE WITH

Document 28-5

000047
APPROVED:
W.

EM 110-2-1003.
MCDONALD

II

'"

THE DATA ON THIS MAP IS REPRESENTATIVE OF A LARGER DATA SET. THE CONTOUR ON rHIS MAP WAS ,CREATED FROM THE LARGER DATA SET.

LEAD C~TOG"."Io£1I

APPROVE D: R.

KISS
CHIEF.Of SUIVE'!

~'0
DATE:
4 JUNE. 2004
REQUEST NO.' 2536DIN

SHEET 1 OF

'b

FILE NO.:

NDHARS AD

Filed 12/14/2007

--

i(vtltJ

Page 13 of 32

Case 1:06-cv-00101-FMA

Document 28-5

Filed 12/14/2007

Page 14 of 32

1

M, Alton
A
Q

13

2

Never.
You would look at the map or

3

4 whatever was on paper?
5
6

A
Q

Right, right, right.
Would you go over that with Mr.

7 Conetta as well?
8

A

Usually not these pre acceptance
There was -- it was almost a

9

surveys.

10 formality, I think, they were sending us a
11 letter saying yeah, we feel we're clear, go do

12 a Government survey.
13
Q

I assume there was no point in the

14 contractor giving you a pre acceptance survey
15 if he didn't feel the area was clear?
16
17
A
Q

Yeah,
So you would take it and present

18 it to Survey and say here, do your thing?
19
A

I don't even think we'd give it to
We wouldn't

20

Surveys.

present it to them,

21 We'd pretty much ei ther call or go down to
22

talk to them.

They would never see the pre

23 acceptance, I don't believe,
24
Q

They just would get an

25 authorization or request from you to go ahead
I

LEX REPORTING SERVICE

800-608-6085
000048
j

Case 1:06-cv-00101-FMA

Document 28-5

Filed 12/14/2007

Page 15 of 32

1 2
Q

R, Conetta

22

Do you know or did you know at the

3 time that there were any different ways to 4 process the data that was collected from a

5 multi beam survey?
6

A

Not prior to the issue arising in

7 contract eight and not until -- well, not

8 until then.
9
Q

So in other words that issue had

10

not

come
A
Q

11
12

before you -Correct.
--

prior to

KVK 8 ?

13
14

15

16 A Specifically as well as I
17 remember, I should say specifically I

Correct. What issue was it that did Q your a tt en t ion wi th regard to KVK 8 ?
A

come

to

18 remember, I only remember as specifically as
19 that there was an issue that in the number of

20 times the contractor was asked to return to an 21 area and then ultimately the question arose as
22 to what type of surveys we were doing for

23 acceptance and that -- yeah, that's about as
24 much.
25
Q

Do you remembe r when tha t que s t i on
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000049

Case 1:06-cv-00101-FMA

Document 28-5

Filed 12/14/2007

Page 16 of 32

1

R. Conetta

23

2

came up?
A
Q

3
4

When?

Yes.
Not

5
6 7 8

A
Q

specifically.
mi ddl e

Early in the job, job, end of the job?
A

of the

I -- I'd be guessing, but it was

9 -- to be honest I'm not sure if the job was
10 11
12

complete when I left.

I think it was, but I
I'm guessing it's

wouldn't swear to tha t .
probably about mid way.
two-thirds through.

It could have been

13

I -- I -- I really don't

14 recall.
15
Q

How did it come up in terms of how

16 was i t communicated to you?
17
A

I don't specifically recall short

18 of the information that -- that's in the
19 correspondence -- that list of correspondence
20

I mentioned earlier.

That kind of tracks, you

21 know, a history of the issue.
22
Q

As you refer to the surveying

23 methods being employed, what did you come to

24 learn about what methods existed?
25
A

Well, it really depends about
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,

.
..

~

United States Army Corps of Engineers Kil Van Kull Projeçt Ofçe
Caven Point Marine Terminal

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

1 October 2004
Jay Cashman, Inc.

549 South St,
P.O. Box 692396 Quincy, MA' 02269-2396

Subjeèt: Contract No. DACW51-03-C-0014, Kill Van Kull & Newark Bay Chanels Navigation Improvement Project, Phase II, Contract VIII (Area 8), Final Examination and Acceptance
Serial Letter No. G-095

Gentlemen,

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

b. EC 1130-2-210, Hydrographic Surveying, 1 October

1998
c. EM 1110-2-1003, Hydrographic Surveying, 1 January

2002
d, Jay Cashman, Inc. Serial letter No. S-0111, dated 28

Septemer 2004; Subject: Governent Examnation and
Acceptance of Area 3A.

e. Jay Cashman, Inc. Serial letter No. S-0108, dated 26 Septemer 2004; Subject: Government Examination and

Acceptance of Area 13,
f. Jay Cashman, Inc. Serial letter No. S-0107, dated 26 September 2004; Subject: Government Examination and

Acceptance of Area 3.
g. Jay Cashman, Inc. Serial letter No. S-0103, dated 21 Septemer 2004; Subject: Government Examination and

Acceptance of Area 4.

000051

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~. ~
~

h. Jay Cashman, Tnc. Serial letter No. S-0102, dated 20 September 2004; Subject: Government Examination and

Acceptance of Area 2.
i. Jay Cashman, Inc. Serial Letter No. S-097, dated 5 September 2004; Subject: Government Examination and Acceptance

of Area 3.
j. Jay Cashman, Inc. Serial Letter No, S-096, dated 4 September 2004; Subject: Government Examination and Acceptance of Area 13. k. Jay Cashman, Inc. Serial Letter No. S-095, dated 3 September 2004; Subject: Government Examination and Acceptance of Area 13.
1. Jay Cashman, Inc. Serial Letter No. S-090, dated 3 August 2004; Subject: Final Examination and Acceptance,

m. Jay Cashman, lnc. Serial Letter No. S-089, dated 24 August 2004; Subject: Government Examination and Acceptance of

Area 13.
Receipt is acknowledged of your letter of 24 August 2004 regarding the contract requirements for hydrographic surveys, ref m.

The minimum performance standards and critical quality control and quality assurance criteria for Corps of Engineers hydrographic surveys for navigation projects are outlined in Engineering Manual (EM) 1110-2-1003, dated 1 Jan 02, ref. c. It is further noted that the mandatory accuracy performance criteria shown ïn Tables 3-1 and 11-2 of this reference follows the more stringent "hard bottom material and/or new work" survey sub-category. The Kill van Kull, NJ project was specifically cited as one project under this sub-category. This survey sub-category would involve employing the "most precise carrier-phase DGPS positioning and elevation measurement techniques._ for this

class of proj ect . "
Regarding acoustic multibeam survey systems for deepdraft navigation proj ects, ref. m, the Corps of Engineers utilizes a 3 foot by 3 foot matrix using the minimum (shoalest) depth after confirming a minimum of 3 hits within the matrix that are above grade for the purpose of

acceptance, For payment purposes (volume computations), a 3
foot by 3 foot matrix using the average sounding is used.

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f' .

#' ~

Be advised that your recent request for surveys, references d through k, have been based on an average depth matrix, not the minimum. All future survey standards for acceptance should be based on the minimum depth matrix criteria.
If you have any questions and/or would like to discuss this in further detail, we can meet with you at a mutually agreeable time and date in the near future. Please contact Mr. Mark Alton or Mr. Sam DiDato at (201) 433-9232 for such an arrangement.

Sincerely,

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

CC: CENAN-CO-D/Leach

000053

DJC009461

1 R. Kiss 23
2 way you performed your surveys and processed 3 your data, did you follow this manual or did

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4 you have any local procedures?
5

A

Again our local procedures were

6 more stringent than the procedures put forth

7 in the manual because the manual was a
8 consensus of many different districts within

the division, So we always felt our 10 procedures were going to remain more stringent
9

11

than the manual.

Those were suggested

12 guidelines.
13
Q

Were those more stringent

14 procedures publicized?
15
16
A
Q

No.
Do you have any ideas of whether

17 it would be important for a dredging

18 contractor to know that you were following
19 more stringent procedures than the manual?
20
A

It wasn't my problem.

21 Q Why did you feel that it was
22 necessary, if that's the right word, or
23 advisable for the New York district to have
24 somewhat more stringent procedures?
25
A

Because I didn't want anybody from
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Q

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R. Ki s s

30

In other words three feet by three

3 feet roughly?
4

A
Q

Ye s.

5

Shot point depth nearest the bin

6 centroid shall be used, what does that mean

7 "nearest the bin centroid?"
8

A

Again, there are many ways to
This statement is saying

9

present the data.

10 that the data, that sounding closest to the 11 center of the cell should be used.
12
Q

An d the nit go e son, aft era

13 semicolon, to say "not average or minimum or
14

shoal base depth."

And yet, if I understood

15 your testimony, the New York district was
16 using the minimum or shoal base depth?
17
A

Yes, absolutely.

18 Q Was that not in contradiction to
19 what the statement in the manual said to do?

20 A Ab sol ute 1 y .
21 Q Did you need any kind of special
22 authority to do that?
23
A

No, guidelines did not write out a

24 requisite.
25
Q

Did you ever use the centroid
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Willam Bruce Wood
Page 57

1
2 3

depth method was not to be used to process data
for acceptance surveys?
A.
Q.
Yes, I do.

4
5
6 7 8 9

Can you tell me why?

A.

I believe if you go back to some of these

tables
Q.

Sure.
Would it make it easier for you rather
than asking paragraph by paragraph if I just

10

asked you to look at the paragraphs identified
in response to Question 4 and tell me where any of them say that agency policy mandated that the
minimum depth method was not to be used?

11
12

A. As I recal 1 reading one of these paragraphs in
here, I do recall it saying that the data is not
accurate - - you know, the mul tibeam data is not

accurate, but I have to read the thing over to

find it.
Q. Sure. I didn't want to rush you. I just wanted
to ask the question in the way to make it

easiest.
A. I understand the question.
MR. PAYNE: Off the record.
(Discussion off the record)

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Willam Bruce Wood
Page 58

1

A.

Well, Paragraph 11-14 or
that mandates this whole

actually, it's 11-15

2
3

it i S mandatory.

Now, I don i t know if that i s a misprint.

4 5
6

Q.

Are you referring back to Table 11- 2?

A.

I think it's 11-4. Wait a minute. Maybe it's

11-13.

I believe on Page 11-22 -- excuse me,

7
8 9

11-29, it's C at the bottom of the page, "Shoal

biased or minimum depth. The minimum depth
recorded wi thin a bin area may be used for some

10 11
12 13

strike detection purposes. However, such biased
depths shall not be used for dredging payment

surveys, and should be used wi th caution on
navigation proj ect condi tion surveys. This is

14

due to the relatively high variance in acoustic

15
16

depth data - see discussions on data accuracy

and conf idence interval s in Chapter 4. Use of
minimum shoal -biased depths can adversely skew

17
18

dredge quantity computations and erroneously

19

portray clearance data. Shoal biasing can also
skew minimum clearance computations on channel
condition surveys."

20
21
22 23 24

So we see this as saying they don It
even recommending that shoalers should be used
on clearance surveys.

ESQUIRE DEPOSITION SERVICES DC 1-800-441-3376 MD 1-800-539-6398 VA 1-800-752-8979
000057

EM 1110-2-1003

Change 1
and Quality Assurance Criteria for

1 Apr 04
Multibeam Surveys (Concluded)
PROJECT CLASSI FICA TION Navigation & Dredging Surveys

Table 11-2. Recommended Minimum Quality Control

Bottom Material Classification

Critena

Hard Soft
Section Referenæ and Notes
fH(2f(tfence Seçtions 11-13 throuah 11-167

RECOMMENDED DEPTH SELECTION AND DATA PROCESSINGrrHINNING BIN MATRIX LIMITS

(Continued)
Surveys using "minimum" or .shoal biased" depths
shall NOT be used for Plans & Specs

Dredge Clearanæ & Accptanæ Surveys (Shoal/Strike detection)
volume computations.

Case 1:06-cv-00101-FMA

and Minimum Channel Clearanæ Condition Reports

or

Depth Selection-Method usedto select representative

Shoalest
Shoalest of

"shoales t" depth from multiple depths in a cell
of 3 confirmed

3 confirmed
project gfade in 5x5 cell
3 hits

Individual cells must be assessed to determine multiple hits above grade

depth hits

above depth hits above

project grade 1n 3x3 cell
3 hits

Referenæ Section 11-16e.
Based on a single pass or multiple passes. Hits on multiple passes provide better confidence.

Number of confirmed "hits" above grade required per cell

RefenæS..ction 11-16e1 1\.
Selected 5x5 ft
ælls containing

Document 28-5

000058
Selected 3x3 ft cells containing

Depth Plot (Plan)-Method used to select plotted
representative

depths from_cell matrix

for a generalized hard copy display of the shoalest individual depths above grade

representative

Density of selected cells that can be plotted dependent on output drawing scale. Referenæ Section t Î:..16e(2).

shoa/est
Use all 3x3
ælls containing

shoalest
Use all 5xS celis containing
Full edited database

confirmed depth confirmed depth
matrx used.
Refere,nçe Section 11-16e(21,

Contour or Color-Coded Plot.- Method used to select depths from æll matrix for generating contours or DTM

color plots

representative
shoalest depth

representative
shoalest depth
Select least controllng depth from all the ælls

Filed 12/14/2007

Tabular Report of Channel Conditions (ENG Form 4020/4021) Method used to select minimum controllng

Least recorded
depth in 3x3 ft cells containing

Least recorded depth in 5x5 ft cells containing

depth for channel reach

representative

representative

shoalest
Record minimum controlliog depth to nearest
1 It

shoalest
confirmed depth confirmed depth
1 It

contained over a given channel reach. Selected controlling depth should be shown on plan of condition survey if submitted Reference Section 11-16f.
Reference EP 1130-2-520 LChaoter 2)

Page 24 of 32

11-44

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AREA 1 &3A

SURVEYED 05-23- 4

Area Above 47' 66, OOsq.ft.
3X3 MATR1X

... AVERAGE SOUN ING 005201

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1

M. Alton
A
Q

13

1

2

Never.
You would look at the map .or

2 3
4

3
4

whatever was on paper?
A
Q

5 6
7

Right, right, right.

5
6

Would you go over that wi th Mr. Conetta as well?
A

7
8 9

8 9

Usually not these pre acceptance
There was -- it was almost a

surveys.

10 11
12

formality, I think, they were sending us a

10 11
12

letter saying yeah, we feel we're clear, go do

a Government survey.
Q

13
14

I assume there was no point in the

13
14

contractor giving you a pre acceptance survey
if he didn't feel the area was clear?
A
Q

15 16
17 18

15
16
17
18

Yeah.
So you would take it and present

it to Survey and say here, do your thing?
A

19

I don't even think we'd give it to
We wouldn't present it to them,

19

20
21 22

Surveys.

20
21
22

We'd pretty much ei ther call or go down to
tal k to them.

They would never see the pre

23
24

acceptance, I don't believe,
Q

23
24

They just would get an

25

authorization or request from you to go ahead
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L3

1

M. Alton
and do an acceptance survey?

14

2 3
4

A Yeah, yeah.
Q Now do you recall whether those
acceptance surveys that your survey people

5
6 7
8

were performing generally verified the pre
acceptance survey?

A (No response).
Q In other words did the acceptance
survey verify in most cases that the surveyor

9

10
11
12

was indeed clear?

A No, there were times where the
contractor's survey would show clear and we would show high spots on the Government

13
14

15 16
17 18

acceptance survey,

Q Would that happen frequently?

A Actually I tabulated it and it's
too bad it's not in somebody's file.
I don't

19 20 21
22

know what frequently is, but yeah, it'd

happen,

We had however many survey areas and

it would happen,

Q Do you know how that compared to
the fre quency on prev i ous KVK proj e ct s?

23
24

A No, I don't,
Q Did it concern you that these
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R. Ki s s

63

2 have to be three hits of that elevation seen
3

within the data cell.

So you have to actually

4 go back research the data cell, research the
5 hit, find the cell and take a look at the cell 6 itself and make sure there were three of those

7 soundings in that cell.

8 Q Cell being three feet by three
9 feet roughly?
10
11
A
Q

Right.
How many data points would there

12 t yp i call y b e in ace 11 ?
13
A

Could be fifty or sixty and

14 generally we look for them to be on separate

15 passes.
16
Q

Do you know whether Cashman was

17 using the shoalest or minimum sounding method

18 on its pre-acceptance surveys?
19
A

After reviewing some of the

20 material, apparently, he was using an average

21 method.
22
Q

Understanding that, I think you

23 said a minute ago you didn't recei ve these for 24 review during the course of the contract?
25
A

That is correct.
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1

R. Ki s s
Q

64

2

So you may have learned it since

3 you didn't know it then?
4

A
Q

That is correct.

5

Are you aware of the fact that

6 Cashman submi tted a claim on this proj ect or

7 after the completion of the project?
8

A
Q

Yes,
Was that something you were made

9

10 aware of when you were still employed by the

11 district?
12
A
Q

Yes.
Were you given that claim to

13

14 review?
15
A

I believe I was, but I don't

16 recall specifically.
17 18
Q

Have you been told that you may be

a witness if this case ever goes to trial?

Is

19 that something that has ever been discussed

20 with you?
21
22
A
Q

I assume that was the case.

Have you formed any conclusions

23 about the merits of the claim submitted by
24 Cashman?
25
A

No.
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1

S, Weinberg

30

2 conversations with representatives of

3 cont ract 0 r dur ing pe r formance 0 f the proj e ct?
4

A

I believe I spoke to them a couple
We would

5
6

of times, but not about this issue.

I would look for some performance-type data

7 to help estimate later jobs, things like that.
8
Q

And you would make that request of

9 Cashman personnel or?
o

A

Sometimes I would need

1 clarification, particularly given there seems

2 -- there was often disconnection between
3 various Cashman reports and every now and then

4 i would just need to get a clarification on

something.
J

This may have happened once or

twice over two years,

Q Was any consideration given to
~ making what I would call an unequivocal
9 statement in the plans and specifications

U saying something to the effect that acceptance R surveys will be processed by the Corps of
2 Engineers using the shoalest sounding method?

A No.
Q No consideration was given to
tha t?
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1

S. Weinberg

31

i
2

2 A It had been discussed during
3 previous job after the EC came out and we
4 thought -- and again as we discussed before, I

3
4

5 was assured by the surveyors that our language

5
6

6 was fine,
7
Q

You relied on what they told you
! ¡

7
i 8

8 without making your own independent
9 determination as to whether they were correct?
10
A

I 9
i

110

They're much more qualified than I
1

11 am.
12
Q

Have you ever testified in a board

2

13 hearing or at trial in connection with a

3
4

14 Government contract matter?

15 A No.
16
17 18

15

(Continued on next page to
accommodate jura t, )

'16
i

17

18
9

19

20 21
22

20
1

2

23
24

3
4

25
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1

R. Ki s s
way you performed your surveys and processed
your data, did you follow this manual or did
you have any local procedures?
A

23

i
2

2

3
4

3
4

5
6 7
8

Again our local procedures were

5
6
7 8

more stringent than the procedures put forth
in the manual because the manual was a

consensus of many different districts within

9

the division.

So we always felt our

9

10 11
12

procedures were going to remain more stringent
than the manual.

10

Those were suggested

11
12

guidelines.
Q

13
14

Were those more stringent

13
14

procedures publicized?
A
Q

15 16
17 18

No.
Do you have any ideas of whether

15

16
17

it would be important for a dredging

contractor to know that you were following
mo res tr ingent procedure s than the manual?
A

18

19

19

20
21 22

It wasn't my problem.

20 21 22

Q Why did you feel that it was
n e c e s s a ry , i f that' s t he rig h two r d ,or

23
24

advisable for the New York district to have
somewhat more stringent procedures?
A

23
24

25

Because I didn't want anybody from
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