Baldi Bros. Constructors v. United States

50 Fed. Cl. 74, 2001 U.S. Claims LEXIS 143, 2001 WL 862682
CourtUnited States Court of Federal Claims
DecidedJuly 30, 2001
DocketNo. 98-326C
StatusPublished
Cited by6 cases

This text of 50 Fed. Cl. 74 (Baldi Bros. Constructors v. United States) is published on Counsel Stack Legal Research, covering United States Court of Federal Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Baldi Bros. Constructors v. United States, 50 Fed. Cl. 74, 2001 U.S. Claims LEXIS 143, 2001 WL 862682 (uscfc 2001).

Opinion

OPINION

MILLER, Judge.

This case is before the court after trial on damages generated by a differing site condition. Plaintiffs claim hinges on the reasonableness of its bid, which is the starting point for the damages claimed.

FACTS

On May 17, 1995, the United States Department of the Navy (the “Navy”) awarded Contract No. N62470-95-C-50351 to Baldi Brothers Constructors (“plaintiff’), a small, family-owned corporation of five principals who are brothers or first cousins, based in Beaumont, California. The contract called for construction of a Multi-Purpose Training Range Project2 at the United States Marine Corps Base, Camp Lejeune, North Carolina. Among the range features plaintiff was responsible for constructing were a new multipurpose M-l Tank training facility, a control tower, an operation/storage building, field service heads, Armor Moving Target Carrier (AMTC)3 emplacements and shelters, Stationary Infantry Targets (SITs),4 and Stationary Armor Targets (SATs),5 defilade positions,6 and associated on- and off-site improvements.

[76]*76As 99% of plaintiffs work is federal-contract based, plaintiff was encouraged to bid on the project, which had been previously bid without an award, by Vernon Petty, a Design Engineer, with the Huntsville Division of the Army Corps of Engineers. Plaintiff had worked on several other projects with the Huntsville Division, which designed the Camp Lejeune project.

Before deciding to bid on the project, Salvatore Pasquale (“Pat”) J. Baldi, a partner and plaintiffs Operations Manager, and Michael (“Mike”) V. Baldi, plaintiffs General Manager, visited the site in Jacksonville, North Carolina.7 In preparing its bid, plaintiff relied mainly on the plans and the contract documents. Pat Baldi testified that he has been “working on estimating dirt projects since [he] was 16 years old,” and that he was responsible for the earthwork estimates for the Camp Lejeune bid. Considerations included in the earthwork estimate were type of soil, grade of the project site, amount of dirt to be cut and filled, and distance between the areas to be cut and filled. The boring logs accompanying the bid documents represented the soils underlying the site as well-graded silty/sand, which is suitable for excavation using conventional earthmoving equipment. The topographic map showed the project site as very flat. According to the project plans, the north and south tank trails to be constructed ran parallel to each other with connections only at one end. The tank trails required cutting of dirt, while the targets required “fill” soil. Because neither the contract documents nor the plans revealed indications about federally protected wetlands or prohibited areas, plaintiff assumed that its equipment could utilize the shortest route between the service road and target construction sites. Based on the information available to Pat Baldi from the contract specifications and his visit to the general area, he created an earthwork estimate assuming that the dirt would be suitable for cutting and filling on-site and that the earthmoving equipment could move rapidly through the area.

Initially, the contract was to be completed within 550 calendar days, ie., by November 18, 1996, for a total amount of $5,629,000.00. However, through unilateral and bilateral contract modifications, the contract duration was increased by 97 calendar days to 647 calendar days, ultimately extending the deadline to February 28, 1997.8 At plaintiffs request, beginning with Modification No. P00014, the Navy included the following language in each of the contract’s definitized modifications:

This modification provides full compensation for the cost of the changed work and an appropriate adjustment of the contract completion date for the changed work. However, the Contractor may request additional compensation for other work and further time extensions which, in the future, may be justified as the indirect result of this modification. The Contractor agrees that it will immediately notify the Officer in Charge of Construction in writing as soon as it is recognized that other contract work is effected [sic] as the result of the changed work covered by this modification. The contractor acknowledges that failure to provide such notice will result in prejudice to the Government and agrees that the Government shall not be responsible for any costs or time extensions based on events 10 days prior to such notice.

Plaintiff substantially completed all contract work by January 29,1997.

The contract modifications were necessary, in no small part, because the contract failed to identify the project site as a federally protected wetlands. On July 13, 1995, at the partnering meeting between plaintiff and the Navy, plaintiff first learned from Mr. Petty that some “wetland issues” needed to be addressed. The Navy instructed plaintiff not to remove the trees from the wetlands, nor to drag through the wetlands the trees removed [77]*77from the areas to be cut and filled.9 Gradually, plaintiff came to appreciate the full meaning of the wetlands designation: Plaintiff could not operate heavy equipment within the wetlands or outside the limits of the tank trail, service road, and access road areas as originally planned. In November 1995 the Navy provided plaintiff with a wetlands designation map, which depicted approximately 80% of the site as untouchable wetlands areas.

During the course of construction, plaintiff encountered various subsurface conditions that it did not expect, including saturated peat marsh, super-saturated clays, subsurface water, and other unsuitable soil types. These soils were not the conditions shown on the boring logs incorporated into the contract. At a November 8, 1995 meeting, plaintiff informed the Navy that it believed the soil conditions constituted a compensable differing site condition. Plaintiff duly notified the Navy by letter of November 9, 1995. Nonetheless, throughout the remainder of the contract duration the Navy refused to recognize plaintiffs differing site conditions claim.

The unexpected soil conditions required plaintiff to modify its sequence of work, which plaintiff claims increased the costs of construction. Plaintiff had intended to employ “conventional earthmoving scrapers” to perform the cut/fill work. Specifically, scrapers would be used for the excavation and embankment work in a single cut-to-fill operation, but due to the nature of the soil, plaintiff was unable to use scrapers for the earthmoving work.10 Plaintiff then sought permission to de-mobilize its earthmoving scrapers. The Navy would not allow plaintiff to de-mobilize this equipment until January 29, 1996.11 Plaintiff removed its scrapers from the site on February 9, 1996. Consequently, from October 19,1995, through January 29, 1996, the scrapers stood by unable to be put to work.

On October 30, 1995, the Navy directed plaintiff to provide more site de-watering, to stockpile and dry out unsuitable soil materials, and to provide additional trenching and drainage improvements. On December 13, 1995, the Navy directed plaintiff to stockpile the existing soils, rather than use them for construction of the tank trail, service, and access roads.

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Cite This Page — Counsel Stack

Bluebook (online)
50 Fed. Cl. 74, 2001 U.S. Claims LEXIS 143, 2001 WL 862682, Counsel Stack Legal Research, https://law.counselstack.com/opinion/baldi-bros-constructors-v-united-states-uscfc-2001.