Hydromar Corp. of Delaware & Eastern Seaboard Pile Driving, Inc. v. United States

38 Cont. Cas. Fed. 76,366, 25 Cl. Ct. 555, 1992 U.S. Claims LEXIS 286, 1992 WL 64691
CourtUnited States Court of Claims
DecidedFebruary 4, 1992
DocketCourt No. 90-295 C
StatusPublished
Cited by2 cases

This text of 38 Cont. Cas. Fed. 76,366 (Hydromar Corp. of Delaware & Eastern Seaboard Pile Driving, Inc. v. United States) is published on Counsel Stack Legal Research, covering United States Court of Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hydromar Corp. of Delaware & Eastern Seaboard Pile Driving, Inc. v. United States, 38 Cont. Cas. Fed. 76,366, 25 Cl. Ct. 555, 1992 U.S. Claims LEXIS 286, 1992 WL 64691 (cc 1992).

Opinion

OPINION

HODGES, Judge.

Plaintiff appeals the decision of the Corps of Engineers Board of Contract Appeals (Board) based on the Wunderlich Act, 41 U.S.C. §§ 321-322 (1988). Plaintiff filed a motion for summary judgment and defendant cross-moved. We find that the Board’s decision was reasonable and appropriate.

FACTS

The Board made extensive factual findings in this case. They are set out fully in the record. Hydromar Corp. of Delaware and Eastern Seaboard Pile Driving, Inc., ENGBCA No. 48827, 89-3 B.C.A. (CCH) ¶ 21,898, 1989 WL 61818. Facts which give background to this case and which are not disputed by the parties are summarized below.

Hydromar Corporation of Delaware and Eastern Seaboard Pile Driving, Inc., a joint venture (Hydromar) was awarded a contract by the Corps of Engineers (Corps) for beach restoration and advance nourishment of a public beach in Duval County, Florida. The contract called for Hydromar to remove 1,500,000 cubic yards of sand from the ocean floor and to transport this material to the shore, where it became “beach fill.” The unit price was $2.55 per cubic yard of fill, for an estimated contract price of $4,230,000.

The contract allowed 365 days for the job to be completed. The Notice To Proceed was received on May 12, 1978, but a subsequent modification extended the completion date by 163 days to October 22, 1979. The work was completed and accepted effective October 5, 1980, nearly a year late.

In addition to typical Corps of Engineers contract provisions concerning differing site conditions, this contract contained the following clause at Section 2A:

4. EXCAVATION
4.1 General. ... The characteristics of the materials in the offshore borrow area are indicated on the Core Boring Logs____ All excavation for beach fill shall be performed within the limits of the borrow area shown on the drawings. The Contractor shall excavate in a uniform and continuous manner. If ordered in writing, the Contractor shall change the location and depth of excavation within the borrow limits when necessary to provide the best fill material available.
[557]*5576. BEACH FILL
6.1 General. ... If rock or clay balls are encountered in the borrow area, the location of the dredging shall be immediately changed by the Contractor and any rock or clay balls deposited on the beach larger than 2 inches in diameter shall be removed from the site ... at the expense of the Contractor____

The Corps provided a borrow area 3,000 feet by 6,000 feet on the ocean floor about seven miles offshore. The contract permitted plaintiff to dig no more than 15 feet below the ocean bottom for the sand. The specifications included data on 18 core borings which had been drilled in an approximate 1,000-foot grid pattern in the borrow area.

One of the contract-approved methods for digging and transporting the sand was the use of a hopper dredge. The hopper dredge uses hydraulic suction to pick up sand and place it in the dredge’s own holds, called hoppers. When the hoppers are full, the dredge is moved to the discharge area and the sand is pumped out through a pipeline to the beach. Hopper dredges use two methods to bring sand from the floor of the ocean to the hopper: (a) trailing dragheads, and (b) suction downpipes or bells.

Trailing dragheads are pulled along the ocean bottom in a path about six inches deep and seven feet wide. The hydraulic flow is assisted by the mechanical scraping action of the dragheads, which are pulled forward at a speed of one to three knots. Suction downpipes are flared at the bottom and used with the dredge in a stationary position. They depend on hydraulic flow, and to some extent gravity, to suck material up the pipe and into the hoppers. Plaintiff used suction downpipes.

On April 25,1978, Hydromar’s dredge (or barge), the HYDRO ATLANTIC, was put into drydock for a hull inspection by the United States Coast Guard. The Notice To Proceed was received on May 12, 1978. The dredge was released on May 24 and was sent to Hoboken, New Jersey for stability tests through May 30. It arrived under tow in Jacksonville, Florida on June 11, 1978 for final Coast Guard inspection. The Coast Guard issued a conditional certificate for the HYDRO ATLANTIC on August 16, 1978.

Hydromar began work on August 17, 1978 and continued with some interruptions until December 7, when its barge was brought in because of weather. While docked, it was inspected by the Coast Guard. Work began again on February 20, 1979 and continued again with interruptions until December 16. Plaintiff then ceased operations because of weather conditions and anticipated Christmas shut down. Work did not resume until April 2, 1980 due to extensive work ordered by the Coast Guard and the American Bureau of Shipping. The job was finished on October 5, 1980.

Plaintiff seeks $10,983,229 and release of liquidated damages because of differing site conditions resulting in weather delays and related expenses, and certification expenses. The Board found that Hydromar had “encountered differing site conditions to a relatively minor degree in the designated borrow area, even though those differing site conditions did not cause the great bulk of the delay in contract performance time or the specific instances of damages to dredging gear claimed____” Hydromar, 89-3 B.C.A. (CCH) at 110,186. The Board remanded the case to the Contracting Officer “for negotiations with the Contractor to establish the equitable adjustment in contract price and performance time to which the Contractor is entitled in accordance with this Opinion.” Id., at 110,-186.

. Plaintiff argues that the Board’s findings were arbitrary, capricious, and so erroneous as to imply bad faith. According to plaintiff, the Board’s findings are not supported by substantial evidence because the Board “failed to make coherent findings and, in certain areas, failed to make findings at all.”

Thereupon, plaintiff cites 19 specific findings of fact by the Board which it believes to be arbitrary or capricious, or not supported by substantial evidence. Defendant points to an extensive investigation of Hy[558]*558dromar’s claim by the Board which “established actual site conditions substantially similar to conditions indicated in the contract documents.” Defendant believes that Hydromar’s case is an attempt to “relitigate factual issues decided by the board. Such an approach, which clearly runs counter to the applicable standard of review, should be of no avail to Hydromar in this appellate review process.”

STANDARDS OF REVIEW

When conducting a Wunderlich Act review, the Claims Court functions as an appellate tribunal. Vista Scientific Corp. v. United States, 808 F.2d 50 (Fed.Cir.1986). Conclusions of law are reviewed de novo, but conclusions of fact are binding on the court unless plaintiff can establish that they are not supported by substantial evidence or that the Board was arbitrary, capricious, or abused its discretion. Vista Scientific Corp., 808 F.2d at 51; 41 U.S.C. § 321 (1988).

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38 Cont. Cas. Fed. 76,366, 25 Cl. Ct. 555, 1992 U.S. Claims LEXIS 286, 1992 WL 64691, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hydromar-corp-of-delaware-eastern-seaboard-pile-driving-inc-v-united-cc-1992.