Free Response to Motion [Dispositive] - District Court of Federal Claims - federal

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

No. 01-642C (Judge Margaret M. Sweeney)

Filed Electronically

PLAINTIFF'S BRIEF IN OPPOSITION TO DEFENDANT'S RENEWED MOTION FOR SUMMARY JUDGMENT

ERIC G. SOLLER Pietragallo, Bosick & Gordon LLP 38th Floor One Oxford Centre Pittsburgh, PA 15219 [email protected] (412) 263-2000 (412) 261-5295 fax Attorney for Plaintiff, GASA, Inc.

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TABLE OF CONTENTS Page TABLE OF AUTHORITIES ................................................................................................ ii COUNTER-STATEMENT OF THE ISSUES ......................................................................2 COUNTER-STATEMENT OF THE CASE ..........................................................................2 SUMMARY OF ARGUMENT ..............................................................................................7 ARGUMENT..........................................................................................................................7 I. II. III. IV. V. VI. Summary Judgment is not appropriate in this Case........................................7 The Corps' delay in issuing the NTP was unreasonable.................................8 The Corps' delay was not concurrent with any delay by GASA..................18 The Corps' delay is compensable because GASA suffered damages proximately caused by the Corps' delay........................................22 GASA in entitled to compensation for in-river placement of dredged materials ..........................................................................................25 GASA in entitled to return of liquidated damages........................................27

CONCLUSION.....................................................................................................................28 CERTIFICATE OF SERVICE

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TABLE OF AUTHORITIES

Cases

Page(s)

Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986)...................................................................8 C.H. Leavell and Co. v. United States, 208 Ct. Cl. 776, 530 F.2d 878 (1976)..................................................................................................................17,18 Chaney & James Constr. Co. v. United States, 421 F.2d 728, 190 Ct. Cl. 699 (1970) ...................................................................................................................25 Commercial Contractors, Inc. v. United States, 29 Fed. Cl. 654 (1993) ........................................8 Dynamics Corp. of America v. United States, 10 Cl. Ct. 275 (1986)............................................26 Essex Electro Engineers, Inc. v. Danzig, 224 F.3d 1283 (Fed. Cir. 2000) .................................9,21 Hol-Gar Mfg. Corp. v. United States, 169 Ct. Cl. 384, 351 F.2d 972 (1965).......................................................................................................................26 Interstate General Gov't Contractors, Inc. v. West, 12 F.3d 1053 (Fed. Cir. 1993)..............................................................................................................................23 J.D. Hedin Constr. Co. v. United States, 347 F.2d 235, 171 Ct. Cl. 70 (Ct. Cl. 1965) .................................................................................................................................23 Johnson & Sons, 180 Ct. Cl. at 969 (1967) ...................................................................................23 K-W Construction, Inc. v. United States, 229 Ct. Cl. 413, 671 F.2d 481 (1982).......................................................................................................................21 Luria Bros. & Co. v. United States, 369 F.2d 701, 177 Ct. Cl. 676 (1966)...................................24 M.A. Mortenson Co. v. United States, 843 F.2d 1360 (Fed Cir. 1988).........................................20 Marine Construction & Dredging, Inc., 90-1 B.C.A. (CCH) P22, 573 at 113,283 (1989)...............................................................................................................................................8

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TABLE OF AUTHORITIES (Cont.)

Cases

Page(s)

Merritt-Chapman & Scott Corp. v. United States, 429 F.2d 431, 192 Ct. Cl. 848 (Ct. Cl. 1970)........................................................................................................22 Mingus Constructors, Inc. v. United States, 812 F.2d 1387 (1987) ................................................8 Mountain Home Contractors v. United States, 192 Ct. Cl. 16, 425 F.2d 1260 (1970).....................................................................................................................27 Newsom v. United States, 230 Ct. Cl. 301 676 F.2d 647, 650 (1982)...............................................................................................................26 Owen v. United States, 44 Ct. Cl. 440 (1909) ...............................................................................23 P.R. Burke Corp. v. United States, 277 F.3d 1346 (Fed. Cir. 2002) .............................................21 S.O.G. of Arkansas v. United States, 212 Ct. Cl. 125, 546 F.2d 367 (1976).......................................................................................................................27 Sauer, Inc. v. Danzig, 224 F.3d 1340 (Fed Cir. 2000)...................................................................27 Servidone Constr. Corp. v. United States, 931 F.2d 860 (Fed. Cir. 1991) ....................................22 Smoot v. United States, 237 U.S. 38 (1915)..................................................................................26 Specialty Assembling & Packing Co. v. United States, 355 F.2d 554, Ct. Cl. 153 (Ct. Cl. 1966)...............................................................................................................21 Standard Federal Bank v. United States, 62 Fed. Cl. 265 (2004) .................................................17 Triax-Pacific v. Stone, 958 F.2d 351 (Fed. Cir. 1992) ..................................................................22 Tri-Cor, Inc. v. United States, 458 F.2d 112, 198 Ct. Cl. 187 (Ct. Cl. 1972)........................................................................................................21

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TABLE OF AUTHORITIES (Cont.)

Cases

Page(s)

Wilner v. United States, 24 F.3d 1397 (Fed. Cir. 1994) (en banc) .............................................7,23 Youngdale & Sons Constr. Co. v. United States, 27 Fed. Cl. 516, 547, (1993)......................23, 24

Statutes

Page(s)

31 U.S.C. § 1341 (a) ......................................................................................................................16

Regulations

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48 C.F.R. § 52.242-14 (2004) ........................................................................................................22

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INDEX TO THE ORIGINAL APPENDIX Page Expert Report prepared by Sadaka Corporation on behalf of GASA, Inc.........................................0001 Amendment Number 1 to Solicitation Number DACW59-00-B-0012 .............................................0151 Amendment Number 2 to Solicitation Number DACW59-00-B-0012 .............................................0155 Solicitation Number DACW59-00-B-0012 .......................................................................................0159 Corps email regarding August 24, 2000 meeting ..............................................................................0373 Corps August 15, 2000 letter regarding submission of transmittals..................................................0374 GASA September 1, 2000 letter regarding August 31, 2000 meeting...............................................0376 Corps September 13, 2000 memorandum regarding Accident Prevention Mutual Understanding Meeting ..............................................................................................................................................0380 Corps September 13, 2000 memorandum regarding Environmental Protection Mutual Understanding Meeting......................................................................................................................0383 Corps September 13, 2000 memorandum regarding QA/QC Mutual Understanding Meeting ........0384 GASA July 12, 2000 transmittal number 4 regarding Propelling Unit Agreement...........................0388 GASA August 29, 2000 transmittal number 16 regarding Environmental Protection Plan ..............0389 GASA August 17, 2000 transmittal number 19 regarding Propelling Unit Agreement....................0390 GASA August 29, 2000 transmittal number 21 regarding Subcontractor Statement & Acknowledgement Form....................................................................................................................0391 GASA August 17, 2000 transmittal number 21 regarding permitted solid Waste Disposal Facility Agreement..........................................................................................................................................0392 GASA August 30, 2000 transmittal number 27 regarding Quality Control Plan ..............................0393 GASA August 30, 2000 transmittal number 28 regarding Environmental Protection Plan ..............0394 GASA August 30, 2000 transmittal number 25 regarding Qualification of Hydrographic Surveying Firm ..................................................................................................................................0395 Woolpert Memo dated August 29, 2000 regarding August 28, 2000 meeting ..................................0397

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INDEX TO THE ORIGINAL APPENDIX (Cont.) Page GASA September 8, 2000 transmittal number 33 regarding Quality Control Plan Addendum........0399 GASA September 8, 2000 transmittal number 34 regarding Environmental Protection Plan...........0400 GASA September 11, 2000 transmittal number 35 regarding Operations Plan and Accident Prevention Program ...........................................................................................................................0401 GASA September 14, 2000 transmittal number 36 regarding Operations Plan Addendum and agreement with McKeesport ..............................................................................................................0402 GASA September 15, 2000 transmittal number 37 regarding Accident Prevention Plan ­ Addendum..........................................................................................................................................0403 GASA September 19, 2000 transmittal number 38 regarding Hydrographic Firm Qualifications ...0404 GASA September 19, 2000 transmittal number 40 regarding Surveying Quality Control Plan .......0405 GASA September 19, 2000 transmittal number 41 regarding Operations Plan-Addendum and McKeesport........................................................................................................................................0406 GASA September 19, 2000 transmittal number 42 regarding Surveying Procedures and Equipment ..........................................................................................................................................0407 GASA September 19, 2000 transmittal number 43 regarding Surveying Quality Control Certification .......................................................................................................................................0408 GASA September 19, 2000 transmittal number 44 regarding Survey Results..................................0409 Corps January 9, 2001 letter regarding Modification "AB" ..............................................................0410 Modification "AB".............................................................................................................................0411 Modification P00001 .........................................................................................................................0413 Modification P00002 .........................................................................................................................0414 Modification P00003 .........................................................................................................................0415 Modification P00005 .........................................................................................................................0416 Modification P00006 .........................................................................................................................0417

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INDEX TO THE ORIGINAL APPENDIX (Cont.) Page Modification P00012 .........................................................................................................................0418 Modification P00013 .........................................................................................................................0421 Deposition Transcript of Benito Moscatiello.....................................................................................0422 Deposition Transcript of Joseph Germinaro ......................................................................................0444

INDEX TO THE SUPPLEMENTAL APPENDIX Deposition Transcript of Michael DeStefano. ...................................................................................0446 Deposition Transcript of Henry Edwardo..........................................................................................0487 Deposition Transcript of Ronald Dunnington....................................................................................0500 Deposition Transcript of Michele Hutfles. ........................................................................................0514 Deposition Transcript of Joseph Thomas (vol. 1)..............................................................................0526 Deposition Transcript of Joseph Thomas (vol. 2)..............................................................................0543

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PLAINTIFF'S BRIEF IN OPPOSITION TO DEFENDANT'S RENEWED MOTION FOR SUMMARY JUDGMENT Plaintiff, GASA, Inc. ("GASA"), files the within Brief in Opposition to Defendant's Renewed Motion for Summary Judgment. On its face, Defendant's motion and the evidence cited in support, make plain that genuine issues of material fact exist, which preclude summary judgment. When the entire record is considered, it is clear that there are significant issues of material fact that can only be resolved at trial. Plaintiff previously filed, in response to Defendants Original Motion for Summary Judgment, a Response to Defendant's Proposed Findings of Uncontroverted Facts ("PRDPFUF") and an Appendix ("Plaintiff's Original Appendix") containing documents not included in the defendant's Appendix, both of which are incorporated herein by reference. Depositions taken since the Court's denial of Defendant's original motion highlight the existence of genuine issues of material fact, and are included in Plaintiff's Supplemental Appendix, which is filed contemporaneously herewith and incorporated herein by reference. Plaintiff had also filed a Response to Defendant's Proposed Findings of Uncontroverted Facts in Support of Defendant's Renewed Motion for Summary Judgment and Plaintiff's own Proposed Findings of Uncontroverted Facts in Opposition to Defendant's renewed Motion for Summary Judgment, both of which are incorporated herein by reference. The record demonstrates that Defendant (hereinafter "the Corps") engaged in a deliberate course to delay the subject project from its inception, beginning with the failure to issue the Notice to Proceed in a reasonable and timely manner, and continuing with delays in its approval of key technical submittals and other bad faith conduct that was designed to prevent GASA from earning payment under Contract No. DACW 59-00-C-0010 (hereinafter "the Contract") during

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fiscal year 2000 ("FY 2000") and fiscal year 2001 ("FY 2001").1 As a result, GASA suffered compensable damages under the Contract, is entitled to additional payment under the contract and entitled to the return of liquidated damages withheld by the Corps. The evidence also shows that few if any delays were caused by GASA. COUNTERSTATEMENT OF THE ISSUES 1. Whether the Corps' delay in issuing the Notice to Proceed (NTP) was unreasonable. Whether the Corps' delay was concurrent with any delay attributable to GASA. Whether the Corps' delay was the proximate cause of harm to GASA. Whether GASA is entitled to additional payment for In-River Placement. Whether GASA is entitled to the return of liquidated damages. COUNTERSTATEMENT OF THE CASE GASA was the successful bidder on the U.S. Army Corps of Engineers Contract (hereinafter "the Contract") for the dredging and removal of materials in the navigation channel of the Monongahela River in Western Pennsylvania near Pittsburgh, known as Braddock Lock and Dam ­ Pool 3 Dredging Navigation Channel, Phase One Project (hereinafter "the Project"). The Project was part of a larger project involving the removal and replacement of the locks and dam at Braddock. Plaintiff's Supplemental Appendix at 0516, 0517 (Deposition of Michele Hutfles, pp. 8, 12). Pursuant to the Contract, most of the materials dredged were contaminated and were to be removed offsite to an approved sanitary landfill. The Contract permitted that other materials were eligible for "in-river" placement, for which GASA was to be compensated additional amounts based upon "the quantity actually dredged." Appendix to Defendant's

2.

3. 4. 5.

Motion for Summary Judgment (hereinafter "Defendant's Appendix") at 86-89. The Corps
1

The Corps' fiscal year 2000 ran from October 1999 until September 30, 2000.

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determined GASA's bid to be fair, reasonable and balanced, and the pre-award survey of GASA was satisfactory. Plaintiff's Supplemental Appendix at 0519 (Hutfles, pp. 18-19). When a contract is sent out by the Corps for bid, it is required that the Corps district in which the project is to be performed have accounted for that contract in its budget. Plaintiff's Supplemental Appendix at 0490 (Deposition of Henry Edwardo, p 9.). Additionally, when a contract is awarded, it is the Corps' policy to have the funds in place for that particular project. Plaintiff's Supplemental Appendix at 0517 (Hutfles at p. 12 and Edwardo, p 13.). According to Ms. Hutfles, if the Contract was awarded, the funds were to be in place. Plaintiff's Supplemental Appendix at 0517-0518 (Hutfles at pp. 12-13 and 16.). According to Michael DeStefano, Contracting Officer, on prior occasions, if a funding issue was discovered while the bidding process was in progress, a contract would be cancelled. Plaintiff's Supplemental Appendix at 0455 (Deposition of Michael DeStefano, p. 34). Moreover, Mr. DeStefano recalled discussions with respect to not awarding the Contract in the first place because of funding issues. Plaintiff's Supplemental Appendix at 0457 (DeStefano, p. 41). Mr. DeStefano also testified that once a contract is awarded, any decision to terminate must be made quickly, "before the [the contractor] expends more costs and so forth." Plaintiff's Supplemental Appendix at 0457 (DeStefano, p. 42). On June 6, 2000, the Corps awarded the Contract to GASA. Plaintiff's Supplemental Appendix at 0490 (Edwardo, p 12.). In June of 2000, there was a continuing programming requirement within the Corps to move money among Corps offices to have money available for contracts when needed. Plaintiff's Supplemental Appendix at 0491 (Edwardo, p 15.). "[T]he

movement of money from one project to another, was a constant exercise to keep things moving forward." Plaintiff's Supplemental Appendix at 0491 (Edwardo, p 15.). On June 6, 200, Henry

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Edwardo, the Project Manager and the Contract and the overall Lower Monongahela River Project, instructed the Contracting Officer to issue the Notice to Proceed (hereinafter "NTP") to GASA. Plaintiff's Supplemental Appendix at 0492 (Edwardo, p 17.). By letter dated June 6, 2000, the Corps' Contracting Officer, Ronald Dunnington2, notified GASA that its bid dated April 20, 2000 was accepted, enclosed an executed copy of the Contract and requested GASA submit the required Performance and Payment Bonds. Defendant's Appendix at 177. Plaintiff's Supplemental Appendix 0504, 0520 (Deposition of Ronald Dunnington, pp. 14-15; Hutfles, pp. 21-22). In the June 6 letter, the Corps stated, "[u]pon return to this office of the bonds, properly executed, Notice to Proceed will be issued." Defendant's Appendix at 177. According to the Contracting Officer at the time, he intended this language to mean that the Corps would issue the Notice to Proceed upon approval of the bonds. Plaintiff's Supplemental Appendix 0504 (Dunnington, p. 15). GASA submitted the bonds to the Corps on June 15, 2000. The Corps returned the bonds to GASA for correction, and GASA

submitted the corrected bonds on June 21, 2000. Defendant's Appendix at 210. Plaintiff's Supplemental Appendix 0521, 0505, 0571 (Hutfles, p. 25; Dunnington, p. 20; Deposition of Joseph Thomas, Vol. II, p. 112). Contrary to the Corps' representation to GASA, the NTP was not issued on June 21, 2000. Moreover, according to the Contract Specialist, it is typical in all Corps contracts that the NTP is issued upon receipt of bonds. Plaintiff's Supplemental Appendix at 0520, 0521 (Hutfles, pp. 22 and 25.). Joseph Thomas, the Corps' Resident Engineer advised GASA to mobilize immediately in anticipation of the issuance of the NTP, and during a pre-construction conference on June 23, 2000, advised GASA that the NTP would be issued during the week of June 26, 2000. See
Ronald Dunnington was the contracting officer when the contract was awarded to GASA retired on August 1, 2000. He was replaced by Michael DeStefano. Plaintiff's Supplemental Appendix 0448 (DeStefano deposition, p. 7).
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Plaintiff's Appendix in Opposition to Defendant's Motion for Summary Judgment (hereinafter "Plaintiff's Original Appendix") at 0434-0442 (Deposition of Benito Moscatiello, pp. 69, 75 and 97-98). Although Joseph Thomas did not recall during his deposition when GASA mobilized, Ronald Dunnington testified that Mr. Thomas told him some time between June 6 and June 28, 2000 that GASA was in the process of mobilizing. Plaintiff's Supplemental Appendix 0506, 0539 (Dunnington, pp. 22-24; Thomas, Vol. I, pp. 49-50). The NTP was not issued during the week of June 26, 2000. GASA had bid the project on the basis that it would complete its work during the four months of July through October 2000, anticipating the likely favorable weather conditions during those months for the in-river work. Plaintiff's Original Appendix at 0429 and 0443.

(Moscatiello, pp. 46-47 and 143). GASA also bid the Project on the assumption that it could perform dredging work at the several dredging sites (referred to in the Contract as "Material Units" of "MUs") simultaneously. Plaintiff's Original Appendix at 0106-0107. Following the instructions of the Corps, GASA mobilized its forces and equipment in the field, ready to proceed in July 2000. Plaintiff's Original Appendix at 0433-0437 (Moscatiello, pp. 64-65 and 80). The Corps was aware of GASA's continuing mobilization efforts prior to issuance of the NTP and that GASA had committed to leasing cranes and equipment. Plaintiff's Supplemental Appendix 0509, 0511 (Dunnington, pp. 35-36, 43-44). Despite GASA maintaining this state of readiness, the Corps did not issue the NTP until August 14, 2000. No one at the Corps ever told GASA to cease mobilization during this period. Plaintiff's Supplemental Appendix 0506, 0495, 0458 (Dunnington, p. 24; Edwardo, p. 32; DeStefano, p. 47). Although the Corps claimed throughout June, July and August 2000 that there were insufficient funds in the Corps budget for the Project, funding was available. Plaintiff's

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Supplemental Appendix 0505 (Dunnington, p. 18 and DeStefano, pp. 61-62.). However, despite this repeated assertion, the NTP was eventually issued without the Corps receiving any additional funding. Rather, the Corps simply diverted existing funds away from, and later, back to the Project. Plaintiff's Supplemental Appendix 0509, 0491, 0495, 0462 (Dunnington, p. 33; Edwardo, pp. 14, 29; DeStefano, pp. 61-62). After this unreasonable delay, upon issuing the NTP, the Corps then compounded the existing delay by throwing up roadblocks in the form of technical objections to various written technical submittals and issuing unnecessary work stoppages. The Corps now cites these

technical objections as the basis for its argument that its delay was concurrent with GASA's delay. However the testimony of the Corps' own representatives belies its position. In addition the Corps argues that its funding issues were a reasonable excuse for its delay. As the record demonstrates, the Corps voiced only funding issues during the period of delay in the issuance of the NTP, and only after the NTP was issued did the Corps take issue with GASA's submittals. This key point was admitted by the Corps' contracting officer Michael DeStefano, who could not explain why the Corps did not address the alleged deficiencies in the submittals until after the NTP was issued. Plaintiff's Supplemental Appendix at 0481 (DeStefano, p. 138). Based upon the evidence, the Corps' assertions are suspect and meant to disguise the Corps' bad faith in stringing GASA along during the summer months, forcing GASA to incur costs of mobilization, overhead and lost opportunity. The delay orchestrated by the Corps, as evidenced in its own documents and testimony, was designed to prevent GASA from earning compensation under the Contract during as much as 2000 as possible. Plaintiff's Original Appendix at 0053. This delay in the issuance of the NTP and other bad faith conduct by the government caused GASA's commencement of work to begin in earnest during October, 2000, which

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progressed during the winter months, through April 15, 2001 (a mandatory river-work cut-off per environmental regulations), five and a half months more than expected in its bid. The Corps then assessed liquidated damages in the amount of $67,770.00 for delay, but by modification number P00013 dated April 12, 2002, reduced the liquidated damages to $15,591.42 and paid the sum of $52,178.58 to GASA. Defendants Proposed Findings of Uncontroverted Facts ("DPFUF") at 105-109. Based upon the Corps' unreasonable delay, GASA seeks damages of $2,350,226.36: (1) $1,741,695.19 for delay; (2) $149,431.82 for in-river placement work not paid for; and (3) the return of liquidated damages in the amount of $15,591.42, plus interest for all of the above. Plaintiff's Original Appendix at 0029. GASA has filed an amended paragraph-by-paragraph response to the Corps' Proposed Findings of Uncontroverted Fact in Support of Defendant's Renewed Motion for Summary Judgment, in which GASA admits or denies each paragraph and provides the reasons for any denial, demonstrating numerous and significant genuine issues of material fact. SUMMARY OF ARGUMENT The majority of the Corp's renewed motion for summary judgment, except its argument relating to in-river placement and failure to prove damages, is based upon the false premise that GASA was responsible for the delay in the issuance of the NTP. Numerous genuine issues of material fact belie that premise. Moreover, GASA's claim includes damages for delay caused by the Corps, in addition to the delay in the issuance of the NTP.

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ARGUMENT I. Summary Judgment is not appropriate in this Case Summary judgment is only appropriate where there are no genuine disputes as to any material fact and the movant is entitled to judgment as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-52 (1986). The moving party bears the burden of establishing the absence of any genuine issue of material fact and all significant doubt over factual issues must be resolved in favor of the party opposing summary judgment. Mingus Constructors, Inc. v. United States, 812 F.2d 1387, 1390 (1987). As pointed out by the Corps, a material fact is one "that might affect the outcome of the suit under the governing law" and summary judgment will not lie if the dispute about a material fact is genuine." Anderson, 477 U.S. at 248. As is discussed below, genuine issues of material fact exist to preclude summary judgment in favor of the government. The reasonableness of the passage of time between contract award and the issuance of a NTP is not a matter of law, but a question of fact. Commercial Contractors, Inc. v. United States, 29 Fed. Cl. 654, 663 (1993) citing, Marine Construction & Dredging, Inc., 90-1 B.C.A. (CCH) P22, 573 at 113,283 (1989). II. The Corps' delay in issuing the NTP was unreasonable GASA agrees that when seeking an equitable adjustment for government-caused delay, "the contractor has the burden of proving the extent of the delay, that the delay was proximately caused by government action, and that the delay harmed the contractor." Wilner v. United States, 24 F.3d 1397, 1401 (Fed. Cir. 1994) (en banc). This Court's review is de novo. Id. at 1401-1402. In this case, the president of GASA, Benito Moscatiello, specifically testified that GASA planned a four-month period of work starting in July and ending in October. Plaintiff's Original

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Appendix at 0429 (Moscatiello, pp. 5, 46-47 and 143). While the Corps asserts that the Contract had no specified date for the NTP, a reasonable period is implied into any such contract. Essex Electro Engineers, Inc. v. Danzig, 224 F.3d 1283 (Fed. Cir. 2000). Moreover, on June 6, 2000, the Corps advised GASA that the NTP "will" be issued "[u]pon return to this office of the bonds." Plaintiff's Original Appendix at 0039. GASA satisfied this condition on June 21, 2000, and yet the NTP was not issued. Plaintiff's Original Appendix at 0048. The Corps argues that any delay was reasonable, claiming that it is uncontroverted that the Corps lacked funding from Congress sufficient to issue the NTP. were available to the Corps. To the contrary, funds

In an internal memorandum dated June 1, 2000, the Corps Defendant's Appendix at 176. Shortly

recommended awarding the Contract to GASA.

thereafter, the Corps issued the first unilateral contract modification P00001 (A-175 or GASA 06583), dated June 6, 2000, to reduce the "funds available" for payment to contractor "during the current fiscal year" from $5,200,000 to $ 100,000. Defendant's Appendix at 177-178. In short, the funds were available and the Corps simply elected to divert those funds elsewhere on the same day the Contract was awarded. Appendix at 0048, 0065, 0068. According to the Contracting Officer who awarded the contract: "I know the issue [of funding] did come up later, but as I understood it back then, the funds were going to be provided and I thought that came out of our headquarters, not the Pittsburgh District, but, I guess, we were called the Ohio River Division at the time. ... But there was some discussion that went on with the headquarters and the funding that was going to be provided. That was no problem. In other words, there was really no issue, as I remember it, any way." Plaintiff's Supplemental Appendix 0505 (Dunnington, p. 18.). The Contracting Officer conceded that GASA had supplied the Defendant's Appendix at 180; Plaintiff's Original

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bonds, and they were approved by the Corps by June 21, 2000, but could not provide a reason as to why the NTP was not issued until August 14, 2000. Plaintiff's Supplemental Appendix 05050506 (Dunnington, pp. 20-21.). The Corps Contract Specialist, in a memorandum incorrectly dated June 16, 2000, wrote that the Contract was awarded on June 6, 2000, and that Payment and Performance Bonds were received on June 15, 2000. Plaintiff's Original Appendix at 0048. The Contract Specialist also stated that the bonds were returned to GASA for correction and corrected bonds were received on June 21, 2000. The memorandum goes on to state: Per Hank Edwardo, on 26 June 2000, he requested that we issue the NTP. I asked if we had the funds and his response was that Les Dixon, Scott Smiley and him met and everyone is aware of our need to continue to fund Braddock as well as this dredging job. We will continue to seek money from HQ and they have promised that they will seek funds to complete these jobs. Id. The memorandum incorrectly stated: "Based upon the above information, NTP was issued on 26 June 2000." Id. (Emphasis added). Despite this, the Corps decided not to issue the NTP until August 14, 2000. Similarly, a pre-construction meeting was held on June 23, 2000, to "review the requirements of the contract and to discuss the construction activities of the contract." Plaintiff's Supplemental Appendix 0530 (Thomas, Vol. I, p. 14). According to the minutes of that meeting: "Expect Notice to Proceed to be issued week of 6/26/00." Id. The NTP was not issued the week of June 26, 2000. As of June 28, 2000, the Contracting Officer was aware that GASA had already mobilized and was on site. Plaintiff's Supplemental Appendix 0506 (Dunnington, p. 24.). The Contracting Officer confirmed that the Corps never instructed GASA to refrain from mobilization until after the NTP as issued. Id. Additionally, the Contracting Officer had been

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advised by headquarters (Washington, D.C.) that the Corps was not allowed to terminate for convenience; it therefore needed GASA's approval to terminate the Contract. Id. The

Contracting Officer also recalled receiving some assurance from headquarters that the funding would be provided. Id. Despite this, on June 28, 2000, the Contracting Officer (Ronald Dunnington) verbally advised GASA that, "at his [Mr. Edwardo's] directive, the contract was going to be terminated due to a concern with being able to have sufficient funds next year." Defendant's Appendix at 238. At that time Mr. Edwardo did not have the authority to terminate the Contract. Plaintiff's Supplemental Appendix at 0493 (Edwardo, p 22.). According to Mr. Edwardo, one hour after delivering this message to GASA, he informed LRD3 of this action, and was told that LRD should have been part of that decision. Id. Ninety minutes later, LRD requested that Mr. Edwardo "reverse the phone call to GASA and delay any further action until LRD and HQ weigh in on issue." Id. Later that day, according to Mr. Edwardo, he advised GASA that Mr. Edwardo's decision: "was ill advised, that we were reevaluation [sic] next years funding

scenario and to ignore the verbal termination." Id. On June 29, 2000, GASA received a call from the Contracting Officer officially reversing the verbal termination and advising that a decision on the NTP would be made "next week." Id. During that call, the Contracting Officer was advised that GASA intended to "move ahead," and he assumed that GASA would continue mobilization. Plaintiff's Supplemental Appendix 0507 (Dunnington, p. 27.). A decision was not made the following week, as represented by the Corps. However, it is clear that the Corps was aware as of this date that GASA was moving forward with the necessary preparation for the

GASA believes that LRD stands for the Corps' Great Lakes and Ohio River Division, or shorthand, Lakes and Rivers Division, but is used in this instance to refer to a person or persons who are the ultimate decision makers on Corps projects for this Division, namely the Great Lakes and Ohio River Division Engineer, Dan Spellman, or General Griffin. Plaintiff's Supplemental Appendix at 0533 (Thomas, Vol. 1, pp. 25-26).

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Project. In fact, it was understood by the Corps that any termination was to be first made verbally, "so you can shut down any cost incurrence that's going on." Plaintiff's Supplemental Appendix 0506 (Dunnington, p. 23.). According to Project Manager and both of the Contracting Officers, the sole reason for the termination of the Contract was the lack of sufficient funding. Plaintiff's Supplemental Appendix at 0493, 0458, 0460, 0512 (Edwardo, p. 22, DeStefano, pp. 48 and 55, and Dunnington, pp. 45-46.). In a June 29, 2000 email authored by Mr. Thomas, Project Engineer, funding issues were discussed with Mr. Edwardo and Ralph Henry, Corps Contract Administrator. Plaintiff's

Original Appendix at 0053. The email stated: "GASA ­ We do not have a NTP. Say a NTP on July 5. This guy is shakey [sic]. If he gets going he might start to earn $$$ 15 August. My range of earnings for FY2000 is $0 to $750K." Id. (Emphasis added). Mr. Thomas' handwritten note on the hard copy of the email dated June 29, 2000, stated: "Do not lose this ­ also there is a story behind this." Id. Although Mr. Thomas testified that he used the term "shakey" because he was concerned about GASA's experience on the river, however, he admitted later that one of the river contractors he knew to be experienced was GASA's subcontractor for this project. Plaintiff's Supplemental Appendix 0534, 0548 (Thomas, Vol. I, p. 31, vol. II p. 17-18). This email demonstrates that the Corps was concerned with GASA beginning the Project and earning payment under the Contract during FY 2000 ­ not GASA's performance or competence. It also shows the Corps' motive in delaying GASA's performance for the

remainder of FY 2000 and perhaps FY 2001. In fact Corps representative admitted that they were concerned that if GASA was issued the NTP, GASA would start earning money in FY 2000. Plaintiff's Supplemental Appendix 0495, 0540 (Edwardo, p. 30 (the Corps was

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"absolutely" concerned GASA would earn money in FY 2000); Thomas, Vol. I, pp. 53-54). As stated by the Project Manager, "the less work done in 2000, the less money earned in fiscal 2000." Plaintiff's Supplemental Appendix at 0495 (Edwardo, p 30.). For a Corps representative to disparage a contractor so shortly after awarding a contract, even prior to the issuance of the NTP, while at the same time claiming concern over the contractor's ability to earn payment under the contract in a timely fashion, is clear proof that the Corps deliberately acted in a manner to delay GASA's performance, or at the very least, creates a genuine issue of material fact. The Corps' conduct and the motivation for that conduct continued even after the NTP was issued. In an electronic mail dated one week after the NTP was issued, Mr. Thomas wrote to Mr. Edwardo and others at the Corps: This brings me to the question of money what do we have and how much so we do not put ourselves in the position of this guy just going on and dredging earning money beyond our means to pay. Up front we need about $300K for the bonds mob etc. If you say we have $2 Million this leaves $1.7 mill to dredge. $1.521 does the non regulated materials dredge and place of 72,000 cy or about 40 calendar days of work or completion by about 5 Oct. Thus we have nothing for the MU units. Bottom line how much money guaranteed do we have so that a schedule can be made on the project AND we do not spent [sic] money I do not have. Show me the money. Plaintiff's Original Appendix at 0098 (emphasis added). Accordingly, facing the fining issues and the possibility that GASA's earning could exceed the Corps' funding, the Corps never intended to allow GASA to complete the majority of the Project in FY 2000. Rather, the Corps began of series of efforts to further delay completion of the Project. GASA submits that the Corps' actions were in bad faith. On July 27, 2000, Corps representatives met with GASA's president to discuss the options for the Contract. Defendant's Appendix at 246. The Corps listed those options as: "1. Terminate for Convenience;" and "2. Extend NTP until late FY 2001 with consent of GASA and

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perform majority of work in 2002."

Id.

Importantly, during that meting GASA was not

instructed to cease work on the Contract. Plaintiff's Supplemental Appendix at 0495 (Edwardo, p. 32). On July 31, 2000, GASA again asked for the NTP to be issued and advised the Corps of the expenses that would be incurred by GASA, due to equipment leasing commitments. Defendant's Appendix at 248. GASA also advised the Corps that GASA was incurring costs in excess of $500,000 per month while awaiting the Notice to Proceed. Id. GASA reminded the Corps: "We were assured the notice was immediately forthcoming." Id. GASA also stated: "As represented by Mr. Joseph Thomas in June, weather and water levels in late fall make proceeding immediately critical to avoid suspension of work before completion." Id. On August 3, 2000, the Corps responded in a letter by Michael S. DeStefano, Acting Contract Officer, in which the Corps stated: "As explained to you at that [July 27, 2000] meeting, the Notice to Proceed (NTP) for the subject contract cannot be issued at this time due to the unavailability of funds. ... However, the Pittsburgh District has received approval from a higher authority to offer GASA, Inc. the opportunity to perform this work at a latter date when the funds become available. ... We expect, now, that funding will be available to perform this work in FY 2002." Defendant's Appendix at 249 (emphasis added). Also in this letter, the Corps, for the first time, advised GASA that it should "immediately cease all contract effort." Id. Obviously, the Corps recognized that GASA had been engaged in Project preparation for some time. Plaintiff's Original Appendix at 250. In fact the Corps expected GASA's mobilization efforts to continue during the time the Corps considered termination of the contract. Plaintiff's Supplemental Appendix 0507 (Dunnington, p. 27). Again, the only reason claimed by the Corps

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for delay in the issuance of the NTP was the lack of funds, and not any action or inaction of GASA. Plaintiff's Supplemental Appendix at 0496 (Edwardo, p. 36.). Despite the Corps' knowledge of GASA incurring costs while awaiting the NTP, the first time the Corps instructed GASA to cease all Contract work was not until August 3, 2000. Plaintiff's Supplemental Appendix at 0496-0497, 0512 (Edwardo, pp. 36-37 and Dunnington, p. 46.). In fact, the Corps has confirmed that GASA had the necessary equipment on site to begin dredging work under the Contract. Plaintiff's Original Appendix at 0065. Despite the claim of the unavailability of funds, on August 14, 2000, Mr. DeStefano authored a memorandum to file discussing reducing the quantity of work, allocating $1.5 million to the contract for 2000 and $4.9 million in 2001, in addition to issuing the NTP to GASA on August 14, 2000, pending approval by Corps administrators. Plaintiff's Original Appendix at 0067. Significantly, at the same time the Corps was issuing the NTP, the Corps was having

internal conversations about reducing the scope of work under the Contract, and did not advise GASA of this fact. Plaintiff's Original Appendix at 0069; Plaintiff's Supplemental Appendix at 0498 (Edwardo, pp. 43-44.). It is important to note that during these many meetings and in the exchange of numerous pieces of correspondence, at no time did the Corps ever claim that the NTP could not be issued because of problems with the submittals of GASA. The Corps' representatives, including

Michael DeStefano, the Contracting Officer who denied GASA's first certified claim, conceded this fact and testified that the only reason for the delay in issuing the NTP was funding. Plaintiff's Supplemental Appendix 0458, 0460, 0462-0463, 0464, 0475, 0512, 0495, 0540, 0570 (DeStefano, pp. 47-48, 54-55, 63-65, 70-71, 115-116; Dunnington, pp. 45-46; Edwardo, p. 32; Thomas, Vol. I, pp. 55-56, Vol. II, p. 107).

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However, after GASA submitted a claim for costs associated with the delay in issuance of the NTP on November 30, 2000, the Corps rejected this claim on January 12, 2001, and for the first time claimed that the delay was caused by GASA's technical submittals. Plaintiff's Original Appendix at 0075; Plaintiff's Supplemental Appendix 0475 (DeStefano, pp. 115-116.). Similarly, when GASA submitted a certified claim on June 27, 2001 (Plaintiff's Original Appendix at 0079-0082), the Corps denied this claim, on August 13, 2001 (Plaintiff's Original Appendix at 0083-0089), asserting that the NTP could not be issued until GASA submitted its "performance and payment bonds, and your Propelling Unit Agreement." The Corps apparently failed to recall that the performance and payment bonds were submitted on June 15, 2000 and approved on June 21, 2000. (Plaintiff's Original Appendix at 0048). The Corps also failed to recall that the Propelling Unit Agreement was submitted on July 12, 2000, and the Contract only requires submittal not approval. (Plaintiff's Original Appendix at 0252). Moreover, although Propelling Unit Agreement was originally rejected, it was later approved, after GASA explained to the Corps why its rejection was unfounded. Plaintiff's Original Appendix at 0096; Plaintiff's Supplemental Appendix 0480 (DeStefano, pp. 133-135.). In short, the Corps' rejection of GASA's claim was unfounded. GASA continued to move forward based on the representations of the Corps. Examples of costs incurred during mobilization after the award of the Contract are listed in the GASA's November 30, 2000 letter and attachment. Plaintiff's Original Appendix at 0070-0073. The attachment to the letter is a general ledger showing invoices paid for barges, etc. Id. While the Corps argues that its delay was inherently reasonable, because the AntiDeficiency Act (31 U.S.C. § 1341 (a)) prohibits it from allowing actual construction work to begin until after funding is available, the record clearly shows that the funds were available

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within the Corps of Engineers. The Corps' representatives testified that contracts are only awarded when funds are available. Plaintiff's Supplemental Appendix 0517-0518, 0490-0491 (Hutfles, pp. 12-13, 16; Edwardo, pp. 12-13). Moreover, while the Corps argues that this issue is ripe for summary judgment, GASA has submitted an expert report that controverts the Corps' position. In the report submitted by GASA, Michel J. Sadaka, P.E. opines: "Our review concluded that the NTP delay was

completely the responsibility of the [Corps], and thus GASA is entitled to excusable and compensable delay covering this period including all subsequent impacts resulting from this initial delay."4 Plaintiff's Original Appendix at 0009. This expert opinion, combined with the facts contained in the record, clearly establish that a genuine issue of material facts exists with respect to the Corps' delay in issuance of the Notice to Proceed. As such, summary judgment is inappropriate. It is very telling that the Corps seeks to distinguish the opinion in C.H. Leavell and Co. v. United States, 208 Ct. Cl. 776, 530 F.2d 878 (1976). The Corps' attempt to distinguish Leavell is essentially that the contractor in that case vigorously pursued its work whereas here the Corps alleges that GASA was not ready to proceed (based entirely on the Corps' specious submittals argument), despite GASA's mobilization efforts. The court in Leavell stated that the purpose of making an equitable adjustment under the suspension of work clause does not depend on a breach of the contract by the government, but whether the government, for its own advantage and convenience in administering the project, has taken action which delayed the contractor's access to the worksite for an unreasonable length of time, thereby causing the contractor

A copy of the Sadaka report is included in Plaintiff's Original Appendix at 0001-0150. Mr. Sadaka's opinion is based upon the facts of record and as specifically referenced in, and attached to, his report. Thus Mr. Sadaka's expert opinion is based upon the facts of record creating a genuine issue of fact, and is not mere speculation. Standard Federal Bank v. United States, 62 Fed. Cl. 265 (2004).

4

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additional expense not due to the plaintiff's fault. Id. at 892. The Leavell court further noted that when the government agency keeps a contractor available while the agency awaits either additional funding from Congress or from discretionary allocations of appropriated funds within its own organization, the government should surely expect to pay for this right by reimbursing the contractor for his additional costs incurred. Id. at 893. Leavell could not be more on point to the present case. III. The Corps' delay was not concurrent with any delay by GASA The Corps next contends that its delay in issuing the Notice of Proceed was reasonable because the Corps required GASA to resubmit certain documents after the Notice of Proceed was issued, specifically the Propelling Unit Agreement, a survey, the Accident Prevention Plan, the Environmental Protection Plan and the Quality Control Plan. This is an argument of

convenience, since the Corps directed GASA on August 3, 2000 to "immediately cease all contract effort." Plaintiff's Original Appendix at 0059. Without any advanced notice, the Corps then issued the NTP on August 14, 2000, and now claims that it was GASA's fault that all of the submittals were not submitted and approved before August 14, 2000. The Corps takes the position that because it did not approve all of these submittals until September 11, 2000, almost one month after the issuance of the Notice of Proceed, its actions in requiring resubmittals is somehow concurrent delay on the part of GASA. As previously noted, the Corps' representatives admitted that at no time prior to the issuance of the Notice of Proceed did the Corps claim there was any impediment other than funding issues. In fact, on August 3, just 11 days prior the issuance of the Notice of Proceed, the Corps stated only: "As explained to you at that meeting, the Notice to Proceed (NTP) for the subject contract cannot be issued at this time due to unavailability of funds." Defendant's

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Appendix at 249. Tellingly, Contracting Officers Ronald Dunnington and Michael DeStefano admitted that they could not think of any delays caused by GASA. Plaintiff's Supplemental Appendix 0449, 0510 (DeStefano, p. 10 and Dunnington, p. 39). Additionally, the Corps, in its Motion for Summary Judgment, does not cite to the complete Contract, which should be read in its entirety. The Corps quotes only one part of the specifications to give the impression that GASA was not in compliance. The Contract Specification Sections 01354 1.5 & 01451 3.2.1 spells out that the Contract allows for the Contractor to proceed with the work while finalizing submittals. The Contract Specifications Section 01354 1.5 ENVIRONMENTAL PROTECTION PLAN states: "........ The Government will consider an interim plan for the first 30 days of operations. However, the Contractor shall furnish an acceptable final plan not later than 60 calendar days after receipt of the Notice to Proceed. Acceptance is conditional and is predicated upon satisfactory performance during construction...." (Emphasis added). The contract specifications section 01451 CONTRACTOR QUALITY CONTROL 3.2.1 states: " ...... The Government will consider an interim plan for the first 90 days of operation. Construction will be permitted to begin only after acceptance of the CQC Plan or acceptance of an interim plan applicable to the particular feature of work to be started...... " (Emphasis added). Plaintiff's Original Appendix at 0294 and 0301. It should be noted that the Pennsylvania Department of Environmental Protection specifically blamed the Corps for at least one compliance issue in its August 4, 2000 letter stating that [the Corps' own] specification did not allow for treatment and discharge of wastewater during this project." Defendant's Appendix at 369A.

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Also, the Contracting Officer testified that if the Corps was concerned about completing the project in a timely fashion, it could have considered permitting GASA to work under an interim Quality Control Plan and an interim Environment Protection Plan. Supplemental Appendix 0481-0482 (DeStefano, pp. 140-141.). The Corps did not approve the Propelling Unit Agreement submitted by GASA on July 12, 2000 until August 25, 2000. However, the Corps ultimately approved the original submittal made on July 12, 2000 (more than one month before the issuance of the NTP). Defendant's Plaintiff's

Appendix at 265. Also, the Contract merely requires the submittal of the Propelling Unit Agreement prior to the issuance of the NTP, not necessarily approval. Plaintiff's Original Appendix at 0252-0255 (Contract Section 01100, ¶¶ 1.3 and 1.8.1). GASA satisfied this

requirement on July 12, 2000. Plaintiff's Original Appendix at 48. Michael DeStefano admitted that the Propelling Unit Agreement need only be submitted, not necessarily approved, before issuance of the Notice of Proceed, and further, that he may have been mistaken in denying GASA's claim based on the Propelling Unit Agreement submitted. Plaintiff's Supplemental Appendix 0479, 0480 (DeStefano, pp. 131, 135). Joe Thomas, who initially raised objections to the Propelling Unit Agreement, admitted that the original submission was correct and he was wrong. Plaintiff's Supplemental Appendix 0564 (Thomas, Vol. II, pp. 83-84). The Corps cites the case of M.A. Mortenson Co. v. United States, 843 F.2d 1360 (Fed Cir. 1988), as an example of a rejection of a claim for Corps delay in issuing a Notice of Proceed on a river project, pushing the project into the winter months. However, in the Mortenson case, the court specifically based its decision on the fact that a bid protest delayed the project, and the fact that the claim was based on the changes clause of the contract. In this case, the Corps states that GASA is seeking an equitable adjustment under the suspension clause.

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The Corps cites K-W Construction, Inc. v. United States, 229 Ct. Cl. 413, 671 F.2d 481 (1982) for the proposition that a delay claim is not cognizable under the suspension clause based upon delay occurring prior to the contract award. However that case is distinguishable because in that case the government originally rejected the contractor's bid. In this case the delay continued after the award. Whether a government-caused delay is reasonable or unreasonable depends on the particular circumstances of the case. P.R. Burke Corp. v. United States, 277 F.3d 1346, 1360 (Fed. Cir. 2002). "What is a reasonable period of time for the government to do a particular act under the contract is entirely dependent upon the circumstances of the particular case." Tri-Cor, Inc. v. United States, 458 F.2d 112, 131, 198 Ct. Cl. 187 (Ct. Cl. 1972) (citing Specialty Assembling & Packing Co. v. United States, 355 F.2d 554, 565, 174 Ct. Cl. 153 (Ct. Cl. 1966)). When the contract does not specify the period in which the government must act, the law imposes an obligation to act within a reasonable period of time. That period is determined by the reasonable expectations of the parties in the special circumstances in which they contracted. Essex Electro Engineers, Inc. v. Danzig, supra., 224 F.3d at 1291. In this case the Corps clearly gave GASA the expectation in June of 2000, that the NTP was imminent and that the work would commence in July 2000, with time to complete before the winter months. (Plaintiff's Original Appendix at 0048). GASA has supplied expert support for its claim. Mr. Sadaka's reports states: "The funding issues continued to plague the [Corps] throughout the project, the result of which is evident, based on the decisions and the management approaches adopted by the [Corps] in dealing with GASA on this projects. As a result of the [Corps] decisions and actions, GASA was greatly impacted in performing the work, and suffered damages as a result of increased time and

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costs to perform the work, in addition to being prevented from completing all the work items bid." Plaintiff's Original Appendix at 0007-0008. Based on the above, summary judgment is not warranted. IV. The Corps' delay is compensable because GASA suffered damages proximately caused by the Corps' delay To be compensable, the government's delay must have been the sole proximate cause of the contractor's loss, and the contractor would not have been delayed for any other reason during that period. Triax-Pacific v. Stone, 958 F.2d 351, 354 (Fed. Cir. 1992). As discussed above,

GASA was prepared to work during July and August of 2000. Also, as demonstrated above, the Corps' argument that GASA was not able to begin because of the Corps' rejection of its submittals was an improper basis to delay GASA's commencement of work. In addition, the Corps interfered with GASA's work causing further delay. As related to GASA's claim for inriver placed materials, the Corps repeatedly refused to allow GASA to place dredged materials in ­river and then in an effort to save money allowed the in-river placement of 65,000 cubic yards out of a contract for 145,000 cubic yards. Plaintiff's Original Appendix at 21 and 0111-0112. Under the standard Suspension of Work clause found in government fixed-price construction contracts, 48 C.F.R. § 52.242-14 (2004), the government may be liable for causing delays to contract work. If the contractor suffers increased costs because of government action or inaction, which effectively suspends the contractor's progress on contract work, this clause may provide a remedy. Merritt-Chapman & Scott Corp. v. United States, 429 F.2d 431, 443-44, 192 Ct. Cl. 848 (Ct. Cl. 1970). The Federal Circuit has stated that three elements are required to justify an equitable adjustment to a contract: "liability, causation, and resultant injury." Servidone Constr. Corp. v. United States, 931 F.2d 860, 861 (Fed. Cir. 1991). To prove the "resultant injury" to the contractor from government-caused unreasonable delay, Servidone, 931

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F.2d at 861, the contractor must prove the extent of the delay attributable to the government, see Wilner, 24 F.3d at 1401 (stating that "the contractor has the burden of proving the extent of the delay"), and that the delay caused the contractor to incur additional costs, see Johnson & Sons, 180 Ct. Cl. 969 (1967) (identifying compensable delay as "'causing additional expense or loss to a contractor'"); see also Wilner, 24 F.3d at 1401 (stating that the contractor must prove "that the delay harmed the contractor"). A contractor is entitled to damages for unabsorbed overhead for the period the contractor was required to be on standby and unable to take on other work. Interstate General Gov't Contractors, Inc. v. West, 12 F.3d 1053, 1056 (Fed. Cir. 1993). Overhead must be unabsorbed because performance on the contract has been suspended or significantly interrupted and additional contracts are unavailable during the delay when payment for the suspended contract activity would have supported that overhead. Id. at 1058. This Court and its predecessor have recognized that construction during winter months may be more expensive than the same work performed during temperate weather. The Court of Claims commented that some winter construction "necessarily entails considerable unusual expense." Owen v. United States, 44 Ct. Cl. 440, 445 (1909). This Court and its predecessor courts have found compensable delays where government-caused unreasonable delays pushed construction activities into the winter months, when these activities were originally scheduled for a different time of year. See, e.g., J.D. Hedin Constr. Co. v. United States, 347 F.2d 235, 256, 171 Ct. Cl. 70 (Ct. Cl. 1965) (overruled on other grounds) (awarding monies for "additional temporary heating during the construction in the winters"); Owen, 44 Ct. Cl. at 445-46 (awarding monies to compensate for the "considerable loss" incurred due to winter work); Youngdale &

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Sons Constr. Co. v. United States, 27 Fed. Cl. 516, 547, 557 (1993) (awarding monies for the labor inefficiencies of winter weather work). Michael DeStefano and Joe Thomas acknowledged that river work during the winter months is more difficult due to shorter days, ice, and deeper and faster current. Plaintiff's Supplemental Appendix 0461, 0537-0538 (De Stefano, p. 59; Thomas, Vol. I, pp. 44-45). An additional roadblock the Corps used to delay GASA from earning money was the refusal to permit simultaneous dredging. See Sadaka report, page 20, Plaintiff's Original

Appendix at 0020. Joe Thomas admitted that reducing quantity dredged by GASA would reduce the amount paid to GASA, and that there was a concern by the Corps that GASA would earn significant money. Plaintiff's Supplemental Appendix 0548, 0550, 0554 (Thomas, Vol. II, pp. 20, 27, 43). After a delay, the Corps eventually permitted GASA to perform simultaneous dredging. Plaintiff's Supplemental Appendix 0561 (Thomas, Vol. II, p. 71). Apportionment of additional costs encountered by working in the winter months, when there have been concurrent delays caused by the government and the contractor, is appropriate, and may be achieved by awarding a proportion of winter-related costs based on a mathematical formula derived from the amount of delay attributable to each party. The Court of Claims applied such a formula in Luria Bros. & Co. v. United States, 369 F.2d 701, 177 Ct. Cl. 676 (1966): Since there was an overrun on the contract performance time of 518 days, of which 420 days have been found to be chargeable to the defendant as unreasonable, some proration of the cost to the plaintiff of such delay is indicated. Accordingly, 81 percent of the plaintiff's cost of delay is chargeable to the defendant. Id. at 740. In that case, the contractor was awarded monies for "protection" of exterior masonry done in the winter, including "salt, hay, tarpaulins, salamanders and labor." Id. at 741. The court applied an eighty-one percent proration to all of the contractor's delay-related costs, including winter protection of exterior masonry and loss of labor productivity when performing winter

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work. Id. at 744-46. A few years later, the Court of Claims again contemplated an apportionment of winter construction costs, when it remanded a case to a contract appeals panel to determine "whether any part of the delay in enclosing the building was due to the fault of the Government, and if so, how much [of the additional costs for winter labor] is compensable under the Suspension of Work clause." Chaney & James Constr. Co. v. United States, 421 F.2d 728, 739, 190 Ct. Cl. 699 (1970). Thus, in the case of concurrent delays that push construction work into the winter months, the contractor may receive an equitable adjustment for the increased costs of winter work, if the delays can be apportioned on the record before the court. In this case, GASA's expert Michel Sadaka has done exactly that in his report, based upon the facts of record. Mr. Sadaka's report opines: "[I]t is clear that the NTP delay was completely the responsibility of the [Corps], and thus GASA is entitled to excusable and compensable delay covering this period, including all the subsequent impacts resulting from this initial delay." Plaintiff's Original Appendix at 0013. At least, there is a genuine issue