Martin Brothers Construction

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeals of - ) ) Martin Brothers Construction ) ASBCA Nos. 63196, 63431 ) Under Contract No. W91238-18-C-0030 ) APPEARANCES FOR THE APPELLANT: Douglas P. Hibshman, Esq. Dana L. Molinari, Esq. Fox Rothschild LLP Washington, DC APPEARANCES FOR THE GOVERNMENT: Michael P. Goodman, Esq. Engineer Chief Trial Attorney Schuyler Lystad, Esq. Timothy A. Holliday, Esq. E. Christopher Lambert, Esq. Amanda R. Chase, Esq. Colby K. Stewart, Esq. Katherine E. Chesney, Esq. Engineer Trial Attorneys U.S. Army Engineer District, Sacramento OPINION BY ADMINISTRATIVE JUDGE EYESTER Appellant Martin Brothers Construction (MBC) appeals a contracting officer’s final decision denying its claim for costs, interest and fees resulting from repair work it performed on multiple levees on the South San Joaquin County, California levee system. According to MBC, it performed the work, which was substantially compliant with the specifications, and the work has literally weathered storms and functioned as required. As the U.S. Army Corps of Engineers (Corps) has not yet remediated the work, MBC argues the Corps suffered no damages, benefitted from the work, and should pay MBC. The Corps argues that MBC failed to comply with the contract by placing substandard fill, submitting test data with quality control issues, and violating safety regulations. The Corps therefore contends the costs MBC seeks are the result of its own actions, not those of the Corps. The Board held a three-day hearing. Per the parties’ request, we have decided entitlement only. Based on the following, we find entitlement for MBC on some but not all its claims.  FINDINGS OF FACT The Contract-Background 1. On September 4, 2018, the Corps awarded Contract No. W91238-18-C-0030 to MBC for $6,256,495 to repair the levee along the San Joaquin River in San Joaquin County, California (R4, tab 11 at 1-2). 1 Initially, the contract required repair of sites 11-12, 14-19, and 22-23 of levee system 1151 (id. at 36). The Corps later descoped the work, and MBC and its subcontractor only performed work on sites 11-12, 14, and 18-19 (R4, tab 15 at 1). 2. Due to excessive rain in the area, the levees had eroded, and thus the contract required the following reconstruction or earthwork (as relevant here): clearing; stripping and grubbing; removal (excavation) of eroded or slumped soil; placement and compaction of levee fill; and hydroseeding (R4, tab 11 at 36). The main issue in this appeal is the excavation 2 of sites 18 and 19, the placement and compaction of the levee fill for the reconstruction of those levees/embankments, and the final stage of hydroseeding. 3 3. The contract included contract line item numbers (CLINs) for the specific work required to repair the levees (R4, tab 11 at 4-7). The CLINs at issue here included estimated quantities with fixed unit prices (see id. at 4-7, 36). 4. Because the CLINs set forth estimated quantities, the contract required MBC survey the areas to be excavated. Specifically, prior to work, MBC, via a licensed surveyor, was to perform a preconstruction survey of the cross sections along the length of the construction site. MBC was to provide the survey to the contracting officer and to show the existing ground and determine the pay quantities for items such as levee fill. (R4, tab 11 at 47-48) To show the final total quantities, MBC was to again survey the cross sections of the levee at the same locations as the pre-construction survey; the 1 The Corps’ Rule 4 file includes tabs 1-162. MBC’s Rule 4 file includes tabs 98-458 (MBC initially supplemented the Corp’s first Rule 4 submission which ended at tab 97), which we cite to as app. supp. R4. MBC’s Rule 4 file also includes tabs 1-661 (supplemental documents), which we cite to as app. supp. 2d R4. (See tr. 1/8) 2 Excavation is the removal of material to the lines and grades shown on the contract drawings, or as otherwise directed by the contracting officer. 3 The contract defines the terms levee or embankment, for purposes of the specifications, to mean the earth, rock or other fills of the levee structure. Fill included all types of earth fill, filter materials, and all other fill in the levee limits. (R4, tab 11 at 354) 2 Corps would pay MBC for the total quantity of excavated material based on the “quantity between the ground surface as determined by the survey and the grade and slope of the cross sections indicated” (id. at 48, 54). 4 5. As noted, the CLINs set forth estimated quantities. The CLIN for excavation set forth an estimated quantity of 520 cubic yards (CY) for site 18 and 670 CY for site 19 (R4, tab 11 at 6). The Corps would pay MBC “for costs associated with general excavation” after considering the surveys and determining the total quantity of excavated material (id. at 53-54). The Corps would make “[n]o allowance. . . for overdepth excavation or for the removal of any material outside the required slope lines unless authorized” (id. at 54). 6. The CLIN for levee fill set forth an estimated quantity of 1,390 CY of levee fill for site 18 and 1,690 CY for site 19 (R4, tab 11 at 6). The contract explained that “[p]ayment will be made for costs associated with furnishing all labor, materials, equipment per the contract drawings and specifications” (id. at 54). We find this means the Corps would pay for fill that complies with the specifications. Further, MBC would be paid for the areas filled after levee excavation operations, but the Corps would make “[n]o allowance” for additional material or for material provided outside of the required slope lines unless authorized (R4, tab 11 at 54). 7. Finally, the CLIN for hydroseeding set forth an estimated quantity of 1,880 square yards (SY) for site 18 and 3,820 SY for site 19 (R4, tab 11 at 6). The Corps would pay MBC for labor, materials, etc. necessary to furnish the seed mix per the specifications. Again, MBC was to verify the quantities by a survey. (Id. at 56) 8. The contract included a scope of work, specifications, and plans (R4, tab 11 at 3). Further, the contract incorporated by reference Federal Acquisition Regulation (FAR) 52.211-18, VARIATION IN ESTIMATED QUANTITY (APR 1984); FAR 52.232-5, PAYMENTS UNDER FIXED-PRICE CONSTRUCTION CONTRACTS (MAY 2014); FAR 52.232-27, PROMPT PAYMENT FOR CONSTRUCTION CONTRACTS (JAN 2017); FAR 52.233-1, DISPUTES (MAY 2014); FAR 52.236-11, USE AND POSSESSION PRIOR TO COMPLETION (APR 1984); and FAR 52.243-4, CHANGES (JUN 2007) (id. at 17, 19). 9. As relevant here, the variations in quantity clause explains that since the unit-priced items are estimated quantities, if the actual quantity varies more than 15 percent above or below those estimates, the Corps would make an equitable 4 MBC’s licensed surveyor was F3 & Associates (F3) (tr. 1/107-08; 2/55). F3 performed the topographic survey of the sites to create the surveys/maps for the project which included the plan view, cross sections and quantity measurements (tr. 2/58-59). 3 adjustment. FAR 52.211-18. As such, the contract required MBC to monitor placement or installation of the unit-priced items and notify the Corps of possible overruns (R4, tab 11 at 45). 10. The contract also incorporated by reference FAR 52.246-21, WARRANTY OF CONSTRUCTION (MAR 1994) (R4, tab 11 at 19). According to that clause, MBC warranted that its work conformed to the contract requirements and was free of defects. FAR 52.246-21(a). The warranty continues for one year from the date of final acceptance of the work, or one year from the date of government possession. FAR 52.246-21(b). 11. The contract did not include a FAR inspection clause. Rather, it stated that for a pre-final inspection, the government may develop a punch list of items to be corrected. For the final acceptance inspection, the contracting officer, as well as MBC personnel, were to be in attendance for an inspection where all work previously identified as unacceptable was complete and acceptable, and the “contract work acceptably complete.” (R4, tab 11 at 149) 12. The contract required MBC comply with all local, state, and federal environmental, occupational health and safety standards (R4, tab 11 at 115). As relevant here, MBC was to comply with 29 C.F.R. § 1926, Safety and Health Regulations for Construction (id. at 111). Further, MBC was to comply with Engineering Manual (EM) 385-1-1, the Corps’ Safety and Health Requirements Manual (id. at 30, 115). MBC was to develop a confined space or enclosed space entry plan in accordance with Occupational Safety and Health Administration (OSHA) standards at 29 C.F.R. § 1910 and 29 C.F.R. § 1926, as well as EM 385-1-1 (id. at 119). 13. To ensure compliance, MBC was to have at least one individual, referred to in the contract as a competent person, serve as the site safety and health officer (SSHO). The SSHO was to administer MBC’s safety program and meet the training, experience and qualifications of EM 385-1-1. (R4, tab 11 at 115) 14. In addition, MBC was to have competent persons on the project with training, knowledge and experience to handle hazards, including excavation/trenching hazards (R4, tab 11 at 111-12). This competent person was to identify hazards (id. at 112), and soil types, and understand slope requirements based on soil types and the different types of shoring and excavation methods (tr. 2/112). For excavations more than five feet into which a person would enter, and after a competent person performed a soil classification, MBC was to obtain an excavation permit from California OSHA (R4, tab 11 at 131). 4  15. MBC had designated at least two competent persons for the job. Mr. Freeman had over 29 years of industry experience doing earthwork projects. (Tr. 1/47) Mr. Chafner had over 30 years of experience (tr. 1/47-8). However, MBC trains most of its staff so during this project, about 10 people were qualified and certified as competent persons (tr. 1/49). The owner of MBC himself had OSHA training, as did many of his employees (tr. 1/50). The OSHA training teaches about on-the-job hazards for excavation and confined spaces, for example (tr. 1/51). 16. In addition, MBC had an Employee Code of Safe Practices, dated 2009, stating a designated competent person could suspend work until hazards were corrected (R4, tab 152 at 8; tr. 1/49). Further, for safe practices, no one could enter an excavation or trench which was 5 feet or more in depth unless it was properly shored or sloped and deemed safe by a competent person (R4, tab 152 at 8). MBC stated it provides this code to OSHA on a regular basis as part of its annual recertification for a trench excavation permit (tr. 1/208). 17. The contracting officer was to notify MBC orally, with written confirmation, regarding any noncompliance with the safety and health requirements, or any condition posing a serious or imminent danger. MBC was to then take immediate corrective action and if it did not, the contracting officer could issue a stop work order until there was satisfactory corrective action. MBC would not be entitled to any equitable adjustment or extension of the schedule based on this stop work order. (R4, tab 11 at 30) 18. With respect to subcontractors and in-house personnel, MBC was to utilize those listed in its proposal. MBC was to obtain the contracting officer’s written consent before making substitutions for these subcontractors or in-house personnel. The substitutes were to have at least the minimum qualifications and experience of those submitted in the accepted proposal. (R4, tab 11 at 29) There is nothing in the record showing the Corps disapproved of or acted regarding any change in MBC’s subcontractors or decision to self-perform work at certain excavation sites. Construction Requirements 19. MBC was to construct the embankment and backfill to the lines, grades, and cross sections indicated on the drawings. The Corps could change the foundation widths and embankment slopes as necessary to produce a safe structure and any resulting changes in quantities would not change the contract unit prices except as provided in the variations in estimated quantities clause. (R4, tab 11 at 366) 20. In general, MBC was to first prepare the ground surface by removing and replacing any unsatisfactory materials. MBC was to scarify, step, bench or break up 5 certain slope surfaces so fill material would bond with the existing material. (R4, tab 11 at 370) 21. For the embankment, MBC was to place levee fill materials in successive horizontal layers of loose material not more than 8 inches in depth, spreading each layer uniformly on a moistened or aerated soil surface so the fill would bond with the surface materials (R4, tab 11 at 370-71). MBC was not to place fill on the embankment or partial fill surface until the areas were inspected and approved by the contracting officer. MBC was to then moisten or aerate, mix and compact the fill as specified. (Id. at 371) Regarding compaction, MBC was to ensure the moisture content and condition of the layer of fill was suitable before compacting it to the minimum specified percentage (id. at 373). 22. For site 18, the contract drawings showed the area of repair (referred to as the wave wash repair area) was 25 feet up from the levee toe (R4, tab 11 at 426). The drawings stated that the excavation was to be benched below the wave wash scarp, which is the area eroded by water (R4, tab 11 at 426; tr. 1/66). MBC was then to add new fill, keyed into the slope (R4, tab 11 at 426). The drawing showed a slope of 3:1 (id.). This meant for every foot of levee repaired downward, MBC was to repair the levee going outward for three feet (tr. 1/69-70). 23. For site 19, the contract drawings showed a bank erosion repair area of 22 feet from the levee toe. The drawings stated that the excavation was to be benched below the wave wash scarp, and then new fill added, keyed into the slope. The drawing showed a slope of 3:1. (R4, tab 11, at 426) Testing and Fill Requirements 24. The contract included many requirements regarding the type and placement of levee fill. MBC was to test the fill to determine whether it met those requirements, both before using and placing the fill, and then after placement and compaction. As a result, these testing requirements, which were set forth in several different parts of the contract (including in referenced material) were an essential part of the contract. The following sets forth a summary of the relevant requirements. 25. MBC was to construct the levees using satisfactory and suitable materials. MBC was to remove and replace any unsatisfactory material while performing ground preparation. (R4, tab 11 at 370) Satisfactory material comprised certain material classified as such by the American Society for Testing and Materials (ASTM) D2487 (id. at 354). MBC was to use designated on-site stockpile and project excavation material (i.e., existing fill), supplemented, if necessary, with offsite import fill 6 material, 5 to construct the embankments, “to the maximum extent possible” (id. at 363). There is nothing in the contract stating the existing project fill was satisfactory and suitable. Hence, the contract did not require its use but stated it should be used to the maximum extent possible if it met the ASTM and other contract requirements. 26. MBC was to submit test results of levee fill materials to show fill suitability (R4, tab 11 at 363, 366). In other words, although the contract preferred MBC use the on-site stockpile and project excavation material, MBC had to test it first to see if it met the specifications (id. at 356, 370). MBC could use materials it obtained from the excavation which met or could be processed to meet the requirements in the embankment or as backfill, and if it did not, MBC had to supplement as necessary (id. at 356). Specifically, it could blend satisfactory offsite materials (also referred to as borrow fill) with unsatisfactory on-site materials so the fill would meet the specifications (id. at 356, 363; tr. 1/81). MBC was to test and demonstrate any proposed borrow fill prior to transporting it to the levee (id. at 378). 27. The tests included soil classification, moisture-density curves and gradation curves. With respect to soil classification, the general levee fill was required to consist of homogenous soil classified as silty sand, clayey sand, silt, or lean clay. Individual test results for the soil classification required a minimum of 20 percent passing the No. 200 standard sieve test. Further, the levee fill soil was to have a plasticity index 6 of at least 8 and less than 40 and a maximum liquid limit of 45. (R4, tab 11 at 363) 28. In addition, when placing fill MBC was to blend the materials as necessary to ensure suitable fill material for the specific application. Any blended material also required soil classification tests. If a disagreement arose over the suitability of the materials, MBC was to perform laboratory tests to show compliance with the specifications, at no additional cost to the government. The failure to perform the tests did not relieve MBC from the requirement to provide suitable materials. (R4, tab 11 at 363) 29. MBC was also required to conduct quality control tests in-place (i.e., in the field) (R4, tab 11 at 375-76). Once placed, the fill had to meet a specified degree of 5 Offsite imported fill was material from commercial sources and not fill soil obtained from the project excavation (R4, tab 11 at 355). 6 The plasticity index is the difference between the plastic and liquid limit. This index shows “the range over which moisture has to be added to go from the plastic limit to the liquid limit.” (Tr. 2/193) Material that has zero or very low plasticity is susceptible to erosion and flow with little water emission (e.g., a sandcastle hit with a wave) (tr. 2/193-94). Material with high plasticity, such as clay for example, would have a higher cohesive strength (tr. 3/20). 7 compaction, which is determined by comparing the in-place density and moisture content to the applicable compaction standard (id. at 355; tr. 2/191). Here, the specification required a relative compaction of 97 percent with a moisture content within plus or minus 2 percent as set forth in ASTM D698; if the material was not in the limit, it was to be reworked to obtain the specified moisture (R4, tab 11 at 372-73). Compaction is important because it ensures the foundation of the levee is solid. At 97 percent compaction, the levee is “solid” and compacted so it is “tight.” (Tr. 1/43) 30. The specifications set forth the minimum acceptable frequency of testing, but additional testing could be required to ensure compliance with the specifications. The specifications included frequencies for the following tests: moisture/density relationship (ASTM D698), soil gradation (ASTM D422), Atterberg Limit (ASTM D4318), 7 and soil classification (ASTM D2487). Moisture-density curves had to be compiled to form a family of curves, which would be utilized to estimate optimum properties such as the maximum dry density and moisture content. These optimum properties were to be used with the in-place density tests. (R4, tab 11 at 376) Thus, the in-place density tests were to reference the appropriate moisture-density relationship compaction curve and related tests. The field technician performing these tests was to be familiar with the family of curves control methodology. (Id. at 377) 31. The specifications also required field/in place density tests and index tests such as: nuclear method (ASTM D6938), 8 sand cone (ASTM D1556/D1556M), 9 soil gradation (ASTM D422), Atterberg Limit (ASTM D4318), moisture content (ASTM D2216), and soil classification (ASTM D2487) (R4, tab 11 at 377). The in-place density tests were to be performed at horizontal locations randomly staggered within the fill (id. at 376). If the fill did not meet the in-place density test requirements, it was to be retested after additional compaction (id. at 376). Failing tests were to be recorded and reported (id.). 32. Further, the specifications required MBC perform tests in accordance with U.S. Army Corps of Engineers, Sacramento District (CESPK) PAM 4125-1-2 Construction Control Manual (CCM) (R4, tab 11 at 151). The CCM, included in the contract, listed the following testing standards and frequency for backfill and embankment: field density with moisture content, 10 gradation w/Atterberg Limits (from compacted material where sample is taken adjacent to the field density test site); 7 The Atterberg limit measures the liquid limit, plastic limit and plasticity index of the soils (R4, tab 11 at 164). 8 The nuclear test method uses a gauge with a probe that tests the compaction of the material based on a curve, as well as the moisture (tr. 1/134). 9 The sand cone tests were to be performed adjacent to the location of the nuclear tests (R4, tab 11 at 377). 10 The field density measures the density of the soil in place (R4, tab 11 at 164). 8 moisture-density relationships with gradation, Atterberg Limits, specific gravity, and classification (from bulk sample) (id. at 166). 33. The CESPK PAM required MBC use only an established commercial laboratory approved by the resident contracting officer. Further, the government reserved the right to conduct additional testing using either its own equipment and facilities or MBC’s. (R4, tab 11 at 161) In this regard, the government could “conduct quality assurance testing to ensure that the work performed is in substantial compliance with the Contract requirements.” This quality assurance testing included backup testing of MBC’s quality control tests, and additional tests for areas of concern. (Id. at 358) 34. Further, the contracting officer could request additional tests if there was reason to doubt the adequacy of the compaction, materials changed, or the contracting officer determined MBC’s testing was inadequate (R4, tab 11 at 378). The contract instructed MBC to perform adequate testing to ensure compliance with the specification’s quality requirements (id. at 151). 35. MBC was to submit test reports signed by an official of a testing laboratory stating that a “material, product or system identical to the material, product or system to be provided has been tested in accord with specified requirements” (R4, tab 11 at 85). MBC was also to submit inspection records, material test results, and quantity of fill placed, daily (id. at 378). Work Begins-Initial Levee Fill at Sites 18 and 19 36. On September 12, 2018, the parties held a pre-construction meeting (R4, tab 17). During the meeting, the Corps explained that its construction quality assurance (QA) representative was responsible for daily site administration. Although the QA representative monitored the daily construction activities, that person could not change any term or condition of the specifications or drawings without the contracting officer’s written authorization. The QA representative could stop work due to safety violations. (R4, tab 17 at 9) 37. Further, the meeting notes explained that the contracting officer’s representative (COR) had “full authority to take any and all of the actions which could lawfully be taken by the Contracting Officer and the Administrative Contracting Officer” with certain exceptions. According to the listed exceptions, the COR could not issue a notice to proceed or change order, take any action obligating funds, terminate the contract, or render a final decision under the disputes clause. (R4, tab 17 at 8) 9  38. Prior to the start of work in October, MBC submitted request for information (RFI) 07 to the COR asking how to determine the location of the levee toe (app. supp. 2d R4, tabs 82, 82a). Per the contract’s drawing notes, specifically Note 2, it stated the levee toe was to be projected from the adjacent undamaged levee toe (R4, tab 11 at 426). Although RFI 07 specifically noted the site 14 levee toe, MBC stated the “RFI is applicable to other sites as well” (app. supp. 2d R4, tab 82). According to the RFI log sheet, the “GOVERNMENT RESPONSE” to the RFI (prepared by the Corps’ geologist) on October 2, 2018, explained the project levee toe “should be projected 3:1 from the existing hinge.” The Corps also stated that it did not concur its response resulted in a cost or schedule impact. (App. supp. R4, tab 446 at 2; see app. supp. R4, tab 438 at 1) The levee hinge is the point where the levee starts to slope down and the toe is the bottom of the levee where the levee starts to slope up (tr. 1/72). According to testimony from MBC, the Corps’ response to the RFI required a steeper slope which required more excavation and fill; for site 18, it required MBC repair the entire levee slope (tr. 1/99; 2/12-13). 39. MBC began work on October 10, 2018 (R4, tab 153 at 4). On October 11, 2018, MBC performed on-site testing of the existing levee fill at sites 18 and 19 (app. supp. 2d R4, tabs 014-14a at 4-7, tab 10B at 4). 40. Also on October 11, 2018, MBC issued RFI 016 specifically regarding sites 18 and 19, noting it considered the wave wash area to be wider than indicated in the plans and stating it reviewed the areas with the on-site inspector and reached an agreement on the tie in point for the toe of the slope to capture that the wave wash area was closer to the top. MBC asked specific questions about the slope and area of repair. The “GOVERNMENT RESPONSE” to the RFI explained that the QA individual had no authority to agree on “a tie in point for the toe of slope;” the levee toe is determined based on the existing hinge and 3:1 slope (“and should be the same or flatter than the adjacent undamaged slopes”); once the design toe is determined, the dimensions or plans may need to be adjusted; and it did not agree with MBC that there was any schedule or cost impact associated with this RFI. However, the Corps also reminded MBC that for unit-priced items with estimated quantities, MBC was to notify the contracting officer of possible overruns. (App. supp. R4, tab 446 at 7) 41. On October 12, 2018, MBC completed the removal of debris at sites 18 and 19. In addition, the Corps’ geological engineer and on-site QA individual inspected and accepted the area and allowed MBC to proceed with the benching excavation and repair. Also, MBC re-established the slope at sites 18 and 19 to reflect the required 3:1 slope to the original toe. (R4, tab 10A at 14) MBC performed benching and placing of compacted fill and MBC’s testing subcontractor CTE Cal, Inc. (CTE) performed nuclear density tests which indicated the compaction was at least 97 percent (id. at 16). MBC also continued to excavate, condition and replace levee fill material while the testing contractor “was onsite to continually monitor the activities and 10 perform nuclear testing and inform the crew as to the procedures and effort to accomplish the specified requirements” (id. at 19). On October 13, CTE performed on-site density testing at sites 18 and 19 (R4, tab 10B at 10). 42. On October 16, 2018, MBC began placing fill at site 18 using existing levee material (R4, tab 10B at 18). On October 17, 2018, MBC began placing fill at site 19 using existing levee material (id. at 22). MBC did not submit the test results for the fill to the Corps prior to placement. 43. On October 17, 2018, the Corps halted all of MBCs’ levee fill placement because MBC failed to provide, prior to placing the fill, the required testing submittals to verify the material being placed complied with the specifications (R4, tab 19). MBC then emailed the Corps the October 10, 2018 test results of the existing fill later that day, noting the results met the specifications (app. supp. 2d R4, tabs 014-14a). Also on October 17, 2018, MBC’s project manager wrote to MBC’s President and explained that per the test results, the on-site soil material MBC used for sites 18 and 19 was “technically” not approved but met the specifications. He also stated those test results “were just submitted” (presumably to the Corps). (R4, tab 104) As we see later, the testing data shows the existing fill at these sites did not “consistently” meet the plasticity indexes (R4, tab 150 at 3-4). 44. MBC asked if it could proceed at its own risk since it had performed a visual inspection of the material and received the test results that day, but the Corps would not allow it (R4, tab 102). The next day, MBC wrote the Corps and stated that all submittals for on-site excavated levee fill material for sites 11, 18 and 19 had been submitted and met the specifications (R4, tab 21). 45. On October 22, 2018, MBC’s project manager notified the contracting officer and administrative contracting officer (ACO) of expected quantity overruns “[p]er the [Corps’] response to RFI 0016” and the contract’s specifications. Specifically, MBC expected an additional 10 feet of wave wash repair (for a total repair area of 35 feet), and an additional 208 CY of excavation and 556 CY of levee fill for site 18. (R4, tab 105 at 1) For site 19, MBC expected an additional 27 feet of wave wash repair (for a total repair area of 46 feet) (R4, tab 105 at 1-2). Further, MBC expected an additional 4,660 SY of grubbing and stripping (GCS); 817 CY of excavation; 2,061 CY of levee fill; and 4,660 SY of hydroseeding (id. at 2). MBC stated it established the levee toe from carrying a 3:1 slope from the existing hinge point and then determined the vertical repair by encompassing all noticeable wave wash and slopes not at a 3:1 (id. at 1). According to MBC testimony, the response to RFIs 07 and 016 increased the wave wash repair area for sites 18 and 19, and these projected quantities were based on that (tr. 1/101-03, 105-06). Thus, in accordance with the contract and the Corps’ instruction set forth in its response to RFI 016, MBC 11 notified the Corps of an increase in the quantities and the reasons why there was an increase. 46. On October 25, 2018, the Corps notified MBC of the requirement for additional testing of the existing fill material at sites 18 and 19. The Corps believed MBC was reusing excavated existing fill material at sites 18 and 19 without first testing and providing the results to the Corps per the specifications (§ 31 00 00, ¶ 2.2.1). The Corps also stated that MBC placed the levee fill without inspection and approval of the subgrade prior to this placement, in violation of the specifications. (R4, tab 23 at 1) The Corps instructed MBC not to proceed with any more placement of material at those sites without performing the following testing, at no additional cost to the government to ensure compliance with material type and compaction: gradation, plasticity index, moisture curve, and compaction. The Corps further instructed its on-site geotechnical engineer to identify all locations for the additional testing. The Corps planned to perform a “side-by-side” QA sampling and quality control (QC) verification of the material. (Id. at 2) 47. As noted, MBC’s testing subcontractor was CTE. The government’s testing subcontractor was Kleinfelder. (See R4, tabs 150 at 3, 12) CTE was on the project site daily and provided stamped tests which were to confirm the results were accurate (tr. 1/138, 144). CTE technicians wrote (hand-written) daily field reports, provided them to MBC for review, and then MBC submitted the notes to the Corps (tr. 1/249-50). CTE would review the compaction numbers and if something had failed during a field test, MBC would reprocess it, rip the area and then re-compact the fill. MBC testified that it would also try to correct any area that failed a moisture test. CTE would then re-test those areas. (Tr. 1/250) 48. On October 30, 2018, CTE and Kleinfelder performed side-by-side testing at sites 18 and 19 (R4, tab 150 at 3-4). On October 31, 2018, MBC notified the Corps that the additional testing was causing a delay at sites 18 and 19, the only sites where work remained (R4, tab 24). 49. MBC informed the Corps on November 2, 2018, that its test results were confusing as they included compaction of 103 percent, which is not possible, and that while several tests showed a compaction above the 97 percent requirement, some failed. Further, MBC informed the Corps that the compaction results might differ when they excavate to expose the 1’ and 2’ depths for testing. Specifically, the samples were taken from only one location at each site and from the top surface rather than at an excavated point where the nuclear gauge test was taken, not all top surface areas had been completed, the material below could have been disturbed when excavated below the surface, and the surface test could have been affected by the material sitting for a couple of weeks. (R4, tab 110 at 2) Further, the Kleinfelder tester had issues with the nuclear density gauge (R4, tab 10A at 48). MBC believed 12 the in-place fill achieved the contract requirements but suggested adding and mixing import fill with the existing fill to produce material that met the contract’s requirements (R4, tab 110 at 3). 50. On November 5, 2018, the Corps stated there was a conflict between the MBC’s QC test results and the Corps’ QA test results. According to the Corps, its results showed that site 18 had a plasticity index of four percent and MBC’s test results showed site 19 had the plasticity index of four percent. Further, the Corps stated both sites failed compaction, requiring removal and replacement of fill. The Corps requested verification of MBC’s test results prior to any corrective work. (R4, tab 27 at 1) 51. On November 6, 2019, MBC asked the Corps if it could remove the placed material at site 18, recompact the subgrade, have the Corps approve the subgrade, and bring in borrow fill. The Corps stated MBC could not reuse in-place material since there were no test results for it. To continue with work immediately, MBC had to use borrow fill. (R4, tab 112 at 1) MBC would be using borrow fill from the Tracy stockpile (Tracy import or Tracy borrow fill) (see R4, tab 150 at 3). 52. MBC agreed that the in-place levee fill used at sites 18 and 19 did not meet the specifications, should be removed and then replaced with approved import levee fill (R4, tab 31 at 1). MBC testimony confirmed that, based on the side-by-side tests, the existing levee fill did not meet the plasticity index (tr. 1/113-14, 117). However, MBC believed it could have added borrow fill and blended and recompacted the fill, per the contract, to meet the requirements (tr. 1/115). Regardless of the testimony, MBC’s letter stated it agreed the fill did not meet the specifications and should be removed and replaced with approved borrow fill (R4, tab 31 at 1). Further, the contract required MBC provide tests demonstrating contract compliance but here the test results were unreliable and demonstrated the fill did not meet certain specifications. Stop Work at Site 18 for Safety Reasons 53. At this point, a new issue arose. On November 7, 2018, MBC began removing the unsuitable fill placed at site 18 (R4, tab 10A at 64). Later that day, the Corps, specifically the ACO, told MBC to stop excavating site 18 because the on-site Corps representative saw MBC excavating the entire repair site with vertical cuts ranging from 5-8 feet in height (R4, tab 29 at 1). According to testimony from the Corps, it coordinated the shutdown at the insistence of the Sacramento District’s Safety Officer, an excavation competent person (tr. 2/120, 132-33). 54. According to the QA report, MBC (using some crew from its subcontractor) used an excavator to remove the unsuitable fill and then loaded 13 two trucks and transported the material. MBC used a dozer to clear the area for the material to be placed and spread. The report stated that MBC had created a slope exceeding seven feet in height. (R4, tab 10A at 64) According to the QC report, at no time were employees permitted to enter the excavation (R4, tab 10B at 97). 55. It is undisputed that MBC had been excavating at a 1:1 slope (R4, tab 29 at 1-2). MBC believed the 1:1 slope on a type C soil was allowable because it was not a trench excavation (i.e., no employees were performing in the trench but rather machines performed the work) (R4, tab 28 at 1 (quoting 29 C.F.R. §1926.652(b))). According to MBC, a trench is when a person is confined between two vertical walls, which could collapse at any time (tr. 1/122). MBC believed, and still does, that this was an open cut excavation or open excavation (tr. 1/123). Further, according to MBC, it was removing material using mechanical means and again, there was no employee in the trench (tr. 1/201-02). MBC argued to the Corps that it could have restored the slope to a 1.5:1 slope before the end of the shift (R4, tab 28 at 1). Further, MBC stated that as the plans for site 16 showed a 1:1 slope, it believed this would be acceptable for site 18 (id. at 2). 56. According to the Corps’ ACO, OSHA regulations explain the angle of incline, to prevent a cave-in, depends on the soil type, environmental conditions, and application of surcharge loads (R4, tab 29 at 2 quoting 29 C.F.R. § 1926.650(b)). The Corps believed that EM385-1-1, Sec. 25, “Excavation and Trenching” and OSHA 1926 Subpart P App B, “Sloping and Benching” required a 1.5:1 slope for class C type soil and no exception applied (id. at 1-2). Further, the Corps explained that OSHA defined an excavation to include a trench and defined a trench as a “narrow excavation (in relation to its length) made below the surface of the ground” and its “depth is greater than the width” but the width is not greater than 15 feet (id. at 3). According to the Corps, the OSHA regulations did not state that the sloping requirements only applied when individuals were working in the trench nor did the OSHA regu