Shoreline Foundation, Inc.

DOCUMENT FOR PUBLIC RELEASE The decision issued on the date below is subject to an ASBCA Protective Order. This version has been approved for public release. ARMED SERVICES BOARD OF CONTRACT APPEALS Appeals of - ) ) Shoreline Foundation, Inc. ) ASBCA Nos. 62876, 63616 ) Under Contract No. W912EP-16-C-0027 ) APPEARANCES FOR THE APPELLANT: Robert G. Barbour, Esq. Matthew D. Baker, Esq. Watt, Tieder, Hoffar & Fitzgerald, L.L.P. McLean, VA APPEARANCES FOR THE GOVERNMENT: Michael P. Goodman, Esq. Engineer Chief Trial Attorney Amber R. Jackson, Esq. Kristin M. Bigham, Esq. Logan Grutchfield, Esq. Mischael Sachmorov, Esq. Engineer Trial Attorneys U.S. Army Engineer District, Jacksonville OPINION BY ADMINISTRATIVE JUDGE O’CONNELL These appeals arise from a contract for the construction of artificial reefs off the coast of Brevard County, Florida. In ASBCA No. 62876, appellant, Shoreline Foundation, Inc. (SFI), seeks $2,663,902, contending that the government wrongfully failed to disclose superior knowledge of the weather and sea conditions at the site and forced SFI to accelerate. SFI also contends that the government breached the duty of good faith and fair dealing. Previously, the Board dismissed for lack of jurisdiction SFI’s claim that it was delayed by a bid protest because SFI never submitted that claim to the contracting officer (CO). Shoreline Found., Inc., ASBCA Nos. 62876, 63616, 23-1 BCA ¶ 38,468 (SFI I). Then, in Shoreline Found., Inc., ASBCA Nos. 62876, 63616, 24-1 BCA ¶ 38,607 (SFI II) recon. denied 24-1 BCA ¶ 38,678, the Board granted the government partial summary judgment with respect to SFI’s contention that the specifications were either defective or contained a misrepresentation as to when the weather and sea conditions would be suitable for performing work. In ASBCA No. 63616, SFI is challenging the government’s assessment of liquidated damages in the amount of $249,690 (R4, tab 58).  DOCUMENT FOR PUBLIC RELEASE The decision issued on the date below is subject to an ASBCA Protective Order. This version has been approved for public release. The Board conducted an eight-day hearing in May 2025. Both liability and quantum are before us. The Board denies No. 62876. The Board sustains No. 63616. FINDINGS OF FACT Solicitation 1. On August 9, 2016, the United States Army Corps of Engineers, Jacksonville District, (USACE) issued the solicitation for the above-captioned contract, Hurricane and Storm Damage Reduction Project, Brevard County, Florida, Mid-Reach Segment - Mitigation Feature (R4, tab 1 at 1-2). The solicitation originally provided for the submission of bids on September 12, 2016, but the deadline was extended to September 26, 2016 (id. at 2, 745 1). 2. The solicitation provided that the contractor would manufacture, transport, and install concrete reef mats with coquina rock surfaces to establish a 4.8-acre artificial reef in water depths of 14 to 16 feet Mean Low Water, 1,000 feet from shore. A reef mat consists of 18 reef blocks (2.6-feet by 2.6-feet by 1-foot-high pieces of concrete/coquina) connected by longitudinal and lateral cabling in a three by six block pattern to form an articulated mat of about 8 by 16 feet. Forty-five reef mats placed together form a reef set of approximately 0.14 acres. The project consisted of 36 reef sets at 10 sites, for a total of 1,620 mats. (Id., tab 1 at 208-09) 3. The placement area for the mats extended for about five miles off the coast of Brevard County beginning 16 miles south of Cape Canaveral, near two municipalities, Satellite Beach and Indian Harbor Beach, and unincorporated Brevard County. This area, which is in the middle of the approximately 40-mile section of Brevard County south of Cape Canaveral, is referred to as the “Mid-Reach.” (Id. at 209; tr. 4/131) 4. The solicitation provided that the contractor would lower the reef mats and place them on the bottom no more than 12 inches from adjacent reef mats. It prohibited dropping the mats through the water or pushing or pulling them after they were in contact with the floor or geotextile, meaning that the contractor would have to lift and reset the mat if it was not in the correct position. (R4, tab 1 at 440, 452) 1 Citations are to the .pdf page number of the electronic file. 2  DOCUMENT FOR PUBLIC RELEASE The decision issued on the date below is subject to an ASBCA Protective Order. This version has been approved for public release. Weather Considerations 5. The solicitation did not place any restrictions on the time of year in which the contractor could work. However, SFI was aware that the winter months are generally unsuitable for marine construction in Florida (tr. 1/156-57; tr. 2/65; tr. 3/19). 6. Dr. Kevin Bodge, a coastal engineer who worked as a consultant for Brevard County, testified at the hearing. Dr. Bodge has worked in the Mid-Reach since 1988 (tr. 4/132). He testified credibly that local watermen know that the best chance for “calm-ish” seas in Brevard County is from mid-May to mid-September. (He defined watermen to mean anybody who works in or recreates around the ocean, including marine contractors, marine surveyors, marine biologists, fishermen, and surfers.) (Tr. 5/106) But this is merely a rule of thumb. Dr. Bodge testified that sometimes the best weather can be in the winter and the worst in July and August. In his work he has lost entire summers to unrelenting storms, whereas the two winters preceding his testimony had 30-day stretches of seas like “flat glass” from January into February. (Tr. 5/87-88) 7. To a certain extent, the solicitation reflected these parameters. In a section entitled “Placement Season,” it provided “[i]t is anticipated that the placement season may occur between April 1st and October 1st” (R4, tab 1 at 424). In a section entitled “Project Order of Work,” it provided “[p]lease note, the area where placement sites are located experience inclement weather which typically occurs between November 1st and May 1st” (id. at 428). Thus, the solicitation provided that USACE “anticipated” that placement “may occur” in a six-month period beginning in April, but that April is also the last month of the inclement weather season. 8. In the “Weather and Water Stage Data” section, the solicitation provided cautionary guidance on the weather during the work season: “Weather Conditions. The project area is subject to tropical storms and hurricanes from June through November, and to windy and/or rainy weather during any time of the year. . . The wet season in the project area is from May through October” (id. at 206). The solicitation further provided that “the project area may be affected by stormy, windy and/or rainy weather, including thunderstorms, during any time of the year” (id. at 212). 9. As we discussed in SFI II, 24-1 BCA at 187,671-72, the solicitation placed responsibility on the bidders to determine how the weather conditions would affect safety and work conditions (R4, tab 1 at 206 (“[i]t shall be the contractor’s responsibility to obtain information concerning weather conditions in the project area”); id. at 212 (“The Contractor shall be responsible for obtaining information concerning rain, wind and wave conditions that could influence safety, dredging and disposal operations prior to submitting a proposal or bid”); id. at 428-29 (“The Contractor shall ascertain the environmental conditions which can affect water and 3  DOCUMENT FOR PUBLIC RELEASE The decision issued on the date below is subject to an ASBCA Protective Order. This version has been approved for public release. land access, such as climate, terrain, winds, current, waves, swells, depths, shoaling, and scouring tendencies”). The contract contained Federal Acquisition Regulation (FAR) 52.236-3, SITE INVESTIGATION AND CONDITIONS AFFECTING THE WORK (APR 1984). This clause provided, among other things, that: (a) The Contractor acknowledges that. . . it has investigated and satisfied itself as to the general and local conditions which can affect the work or its cost, including. . . . (3) uncertainties of weather, river stages, tides, or similar physical conditions at the site. . . . and (5) the character of equipment and facilities needed preliminary to and during work performance. (R4, tab 1 at 573) 10. The solicitation identified various web sites in which wind and wave information from buoys or other devices in the general vicinity of the project site was available, although none of the sources was located within the footprint of the project site (R4, tab 1 at 205; app. ex. D-5; tr. 5/193). The listed sources included the National Data Buoy Center. SFI’s Proposal 11. SFI is a marine contractor formed in 1986 that has completed hundreds of projects (tr. 1/36, 44). However, SFI lacked certain types of experience that would prove to be relevant to this project: it had never worked in the waters off Brevard County; it had “not very often” worked in the open ocean; it had never performed a job involving precise placement of an artificial reef; and it had rarely worked in low visibility waters (tr. 1/49, 96; tr. 2/39; tr. 3/87-88). 12. SFI appointed Carlos Varela to prepare its estimate, with SFI’s president and co-owner, James Royo, as his supervisor (tr. 1/36, 68). Mr. Royo testified at the hearing but Mr. Varela did not. When asked at the hearing whether he had investigated the weather conditions, Mr. Royo testified that “it didn’t seem like it needed to be done,” because of the window (April 1 to October 1) identified in the solicitation (tr. 1/128). 13. SFI did not believe that the NDBC buoys would provide pertinent information for the job site (tr. 1/123-24; tr. 2/30, 34). Mr. Varela instead obtained wind information from Melbourne, which is also not in the project area; it is on the Florida mainland south of the project site (tr. 1/139; tr. 2/32). The record does not identify the precise location of the data, but the Melbourne airport is a likely source (tr. 5/117). 4  DOCUMENT FOR PUBLIC RELEASE The decision issued on the date below is subject to an ASBCA Protective Order. This version has been approved for public release. 14. Mr. Varela “came up with a wind chart” indicating that wind speeds over 16 nautical miles would generate 4-foot waves/swells. This was an important data point because SFI believed that it was capable of working in waves up to 4 feet. (Tr. 1/94, 138) 15. The data that Mr. Varela reviewed must have shown a small number of days in Melbourne with 16-knot winds, because Mr. Varela calculated that an entire season (April through September) would have only five days in which SFI could not work. This included zero days in July, August, and September, the heart of the tropical storm and hurricane season. (Tr. 1/138, 141-43; app. supp. R4, tab 157) 16. The problem with this methodology is that the relative absence of wind on the land does not mean that the ocean will be calm. Wind data on land best correlates to conditions on a lake or bay, not the open ocean. Ocean conditions are in large part controlled by the weather in the North Atlantic Ocean. Thus, while any particular day in Melbourne might have placid conditions on land, the sea could be rough due to a storm that developed hundreds of miles away. (Tr. 1/61; tr. 5/24-25, 118) 17. As a result, Mr. Varela’s calculations would not reliably predict the frequency of four-foot seas at the project site. Based on this, and the testimony that SFI had “not very often” worked in the open ocean (finding 11), we conclude that SFI did not understand what would cause waves/swells at the project site. 18. At the National Data Buoy Center (NDBC) web site identified in the solicitation, a bidder could find buoys including No. 41113, which was 16 miles north of the project in 32 feet of water. This buoy, like the project site, was within the Canaveral bight. (Tr. 5/195; app. ex. D-5) The NDBC buoys provide hourly data that include “wind speed, wind gusts, atmospheric pressure, air temperature, sea temperature, wave height, wave direction, and wave period.” (R4, tab 1 at 205) The data could be downloaded from the site (app. proposed finding of fact (APFOF) ¶ 105)). If a contractor was unwilling to download and analyze the data itself, there were numerous coastal engineers in Florida who could do it for the contractor (tr. 5/214). 19. Other data sources listed in the solicitation included a USACE wave information study site located nine miles to the east of the project site that provided “a hindcast time series of wave heights, periods, and directions taken at 1-hour intervals for the 32-year period extending from 1980-2012, at a station located in 21 meters (69 feet) of water.” The solicitation also listed a Florida Institute of Technology site to the south that provided data (real-time and archived) including “wind speed, wind direction, atmospheric pressure, air temperature, sea temperature, water level, wave height, wave period, and wave direction.” (R4, tab 1 at 205) 5  DOCUMENT FOR PUBLIC RELEASE The decision issued on the date below is subject to an ASBCA Protective Order. This version has been approved for public release. 20. While these data sources were not within the project site, they formed a triangle or triangles around the project site (tr. 5/204-06). 21. Neither party has provided the Board with wave data from these sites for the years prior to bid. The parties have not provided any data at all from the USACE wave information study site or the Florida Institute of Technology site. 22. USACE scheduled a site visit at 10:00 a.m. on August 18, 2016, which Mr. Varela attended (app. supp. R4, tab 328 at 1). The site visit consisted of a visit to the beach near the project site. Mr. Varela informed Mr. Royo that the sea was calm. (Tr. 1/146-49; see app. supp. R4, tab 114 at 220 (recording waves of 0.53 to 0.58 meters between 10:00 a.m. and 12:00 p.m. on August 18, 2016)). SFI never visited the site in a boat or asked USACE for a more in-depth site visit before submitting its bid (tr. 1/148-49; tr. 2/26). 23. Neither SFI, nor any other offerors, submitted pre-bid questions about the weather or sea conditions (tr. 5/149). 24. SFI did not ask USACE or its subcontractors about water visibility at the site (tr. 2/43). 25. SFI bid the contract based on an assumption that it would place 7.5 mats per day (tr. 1/167). 26. The contract required SFI to place the mats at four to five sites in 2017 and five to six sites in 2018, or 40-50% in the first year and 50-60% in the second (R4, tab 1 at 424). The Contract 27. On September 29, 2016, USACE awarded SFI the above-captioned contract in the amount of $13,236,255.08 (R4, tab 55 at 2, 4). The contract incorporated the solicitation (id.; R4, tab 1). 28. The contract required completion within 730 days after issuance of the notice to proceed (R4, tab 1 at 73). USACE issued the notice to proceed on November 29, 2016 (R4, tab 3). 29. Prior to the start of construction, the contract required a variety of submittals, including an accident prevention plan, a quality control plan, and an environmental protection plan. SFI would not be allowed to begin work until it received at least interim approval of these plans. (R4, tab 1 at 147-48, 209, 299, 300, 325-26) 6  DOCUMENT FOR PUBLIC RELEASE The decision issued on the date below is subject to an ASBCA Protective Order. This version has been approved for public release. 30. The contract required SFI to submit a preliminary project schedule within 15 days of the notice to proceed, and an initial project schedule 42 days after the notice to proceed (R4, tab 1 at 237). SFI’s Work on the Project A. The Barge 31. One of the key decisions for SFI was the type of barge that would hold the crane used for placement of the mats. SFI bid the project with an anchor barge, which is a barge that floats on the surface and has an anchoring system. SFI hoped it would alleviate harsh movements caused by sea conditions, but it had never used an anchor barge before. (Tr. 3/95, 100-01; APFOF ¶ 181)). 32. John Wilson, the USACE contracting officer’s representative (COR) and project engineer, and Dr. Bodge testified credibly that a jack-up barge is more stable and enables a contractor to work in higher wave conditions (tr. 5/16; tr. 6/265; tr. 7/47). A jack-up barge has four legs that are dropped to the bottom. The platform is then raised above the water, allowing the contractor to avoid current and wave activity. (Tr. 3/96; tr. 7/64) COR Wilson testified that a jack-up barge would have allowed the contractor to work year-round and in rough seas (tr. 7/47). He testified credibly that a floating barge is “really not what you want on a wave-rich environment” and that it would exacerbate water visibility issues (tr. 6/266). He has been employed by USACE since 1987 but had never seen a contractor use an anchor barge to perform comparable work (tr. 6/257; 7/55-56). 33. SFI’s superintendent, Sal Daher, testified credibly that a jack-up barge would have been stable “like being on land” but that it would not have stopped the mats from swaying once they were in the water (tr. 2/129-30). 34. The Board concludes based on the weight of the evidence that a jack-up barge would have been more stable than an anchor barge and would have given SFI a greater ability to work in seas with higher waves/swells. B. Submittals/Pre-Construction 35. On December 19, 2016, SFI submitted a preliminary project schedule showing that mat placement would begin on April 14, 2017 (app. supp. R4, tab 166 at 1-2). 36. On April 7, 2017, SFI submitted an initial project schedule that pushed the start of mat placement to May 9, 2017 (R4, tab 169 at 42-43). In reviewing the schedule, USACE commented that it was not clear if SFI had taken weather into 7  DOCUMENT FOR PUBLIC RELEASE The decision issued on the date below is subject to an ASBCA Protective Order. This version has been approved for public release. account. SFI responded that it had and that it planned on a six-day work week that gave it a seventh day if there was adverse weather. (Id. at 5) 37. On May 26, 2017, SFI still had not begun mat placement. Paul Cotter, the USACE resident engineer and administrative contracting officer (ACO), issued a letter of noncompliance to SFI. Among other things, ACO Cotter stated that SFI’s accident prevention plan, quality control plan, and environmental protection plan had not been approved and required re-submittal. He also observed that SFI had only fabricated 18 mats to date and that most of them had not been cured properly. (R4, tab 12 at 1, 3) 38. On June 16, 2017, ACO Cotter wrote to SFI by email. He stated that SFI had reported for weeks that the barge was being outfitted and then that it was ready to go. However, he had gone to see the barge the day before and found that it was not ready. (R4, tab 556 at 1; tr. 6/32-33). C. 2017 Mat Placement 39. The parties agree that the contract required one tugboat per barge and that the tugboat had to stay with the barge (tr. 1/132; tr. 2/68; tr. 6/44; R4, tab 1 at 739). In 2017, SFI used one barge, one tug, and one diver in the water (tr. 1/219; tr. 6/44-45). This was not efficient because when all the mats on the barge had been placed, the barge and tug had to return to port and restock, which could mean two or more days with no mat placement (tr. 6/44; R4, tab 4 at 351, 353). 40. Paul Stynchcomb, SFI’s expert in construction management and scheduling, performed an analysis of wave conditions, and prepared several graphs. The graphs show that most days from May 6 to June 27, 2017, had recorded wave heights of less than 3 feet, with only occasional spikes above that level (ex. D-6 at 2- 3). Accordingly, the Board finds that SFI wasted more than a month in which it was feasible to work. 41. On June 27, 2017, SFI began mat placement but managed to place only two mats even though the wave heights were just 1.3 feet (R4, tab 5 at 464-65). On June 28, 2025, it placed six mats in waves of 1.0 feet (id. at 468-69). 42. After the first two days of placement, SFI experienced delays for which it was responsible involving the ladder on the barge and the motor on its crew transport boat (tr. 6/35-36, 175-79). With these delays and subsequent weekends and Independence Day, it did not resume mat placement until July 11, 2017 (R4, tab 5 at 513; app. ex. D-11 at 1). 43. The Board finds that all of the delays through July 10, 2017, were the fault of SFI. 8  DOCUMENT FOR PUBLIC RELEASE The decision issued on the date below is subject to an ASBCA Protective Order. This version has been approved for public release. 44. As of July 31, 2017, SFI had placed only 90 mats (ex. G-14 at 2; app. ex. D-11 at 1). 45. SFI was unable to work on July 31 and August 1, 2017, because of a tropical storm (R4, tab 4 at 373, 377). 46. As of August 31, 2017, SFI had placed 234 mats (ex. G-14 at 2; app. ex. D- 11 at 1). 47. Hurricane Irma made landfall in the Florida Keys on September 10, 2017, and then moved to the north, reaching north Florida on September 11. https://www.weather.gov/mfl/hurricaneirma. 48. Merely observing that the hurricane was over Florida for two days understates the effect on the project. The USACE quality assurance report for September 4, 2017, states that SFI placed 13 mats before stopping to prepare for Irma. USACE stated that the seas were 1-2 feet that day. (R4, tab 4 at 484) The USACE quality assurance report for September 5, 2017, states that Port Canaveral had denied SFI’s request to remain at the port for the hurricane; SFI eventually brought the barge to Green Cove Springs, Florida (id. at 489, 493). By September 7 the seas were 5-6 feet (id. at 493). On September 8, they were 7-8 feet (id. at 496). On September 9, they were 8-10 feet (id. at 499). On September 10-11, when the hurricane was over Florida, the seas reached 23 feet (id. at 502, 505). On September 12, 2017, the seas were 6-7 feet; on September 13, they were 4 feet (id. at 508, 511). While the seas then briefly returned to the 2–4-foot level, by September 16, 2017, they were back to 5-7 feet (id. at 514, 517, 520). Two more hurricanes, albeit not as close to Florida, were yet to come. 49. In an October 2, 2017 email to USACE, SFI stated that its invoice for September was “next to nothing due to the effects of hurricane[s] Irma, Jose and Maria” (R4, tab 4 at 577). More than a year later, by letter dated November 21, 2018, from SFI to ACO Cotter, SFI requested a time extension and attached a report by a meteorologist analyzing weather on the east coast of Florida in September 2017 (R4, tab 36 at 3). The analysis stated: September of 2017 was a particularly difficult month due mainly to tropical cyclones . . . Hurricane Irma tracked north through the western Florida peninsula and shows up in the data from roughly September 7-12. Hurricane Jose tracked through the Atlantic well east of Florida, but it shows up in the sea state data from about September 17-20, and hurricane Maria tracked north to the east of Florida a 9  DOCUMENT FOR PUBLIC RELEASE The decision issued on the date below is subject to an ASBCA Protective Order. This version has been approved for public release. bit later in the month, and shows up in the data from about September 23-27. (Id. at 14). While there were short gaps of time between the three hurricanes, the sea did not sufficiently calm for SFI to resume work before the next hurricane (or the end of the season) occurred. 50. By letter dated October 10, 2017, SFI notified ACO Cotter that it was demobilizing for the season. It stated that “deteriorating weather conditions since September 4, 2017, Hurricane Irma, have hampered our ability to return to normal operations.” (R4, tab 14) 51. SFI placed 252 mats in 2017 (Ex. G-14 at 2; app. ex. D-11 at 2). This was about 15.4% of the total and far short of the 40-50% required by the contract. As described above, SFI had informed USACE that it had planned the work based on a six-day work week, which, in theory, gave SFI some cushion if there was adverse weather (or other delays), even if it had bid zero weather days from July through September (findings 15, 36). Despite the schedule, the record shows that SFI placed mats on only three Saturdays and three Sundays in 2017 (Ex. G-14 at 2; app. ex. D11 at 1-2). For example, the SFI quality control reports for Saturday, July 29 and Sunday July 30, 2017, state that there were 1.0-foot seas but that these were non-workdays and that there were no SFI personnel at the site (R4, tab 5 at 581, 583). The USACE quality assurance report for July 31, 2017, stated that SFI had not worked “by choice” the previous two days (R4 tab 4 at 373). 52. The Board further observes that SFI’s one-barge, one-tug operation that required a return to port to load mats and its failure to work on weekends resulted in five days without mat placement in July in a period of good sea conditions. The record shows that SFI placed mats on Wednesday, July 19, 2017, and then returned to port (R4, tab 4 at 348). It did not resume placing mats until Tuesday, July 25, 2017. SFI’s quality control reports list the sea conditions on every one of these days except Sunday, July 23, 2017. On each of these days the seas are listed as 1.3 or 1.6 feet. (Ex. G-14 at 2; ex. D-11 at 1; R4, tab 5 at 547, 551, 555, 558, 560) Thus, SFI failed to take advantage of five days of good weather. 53. In summary, the Board finds that SFI’s poor performance in 2017 was largely caused by its management and work plan, the late start, and the three hurricanes in September. 10  DOCUMENT FOR PUBLIC RELEASE The decision issued on the date below is subject to an ASBCA Protective Order. This version has been approved for public release. D. 2018 and 2019 Work 54. Contract section 01 32 01, paragraph 3.9, Failure to Achieve Progress, provides: Should the progress fall behind the approved project schedule for reasons other than those that are excusable within the terms of the contract, the CO may require provision of a written recovery plan for approval. The plan must detail how progress will be made-up to include which activities will be accelerated by adding additional crews, longer work hours, extra work days, etc. (R4, tab 1 at 242) 55. Citing this paragraph, ACO Cotter issued a notice of noncompliance to SFI on March 5, 2018. He stated that SFI was approximately 225 days behind schedule but that he could not identify the exact number because SFI had failed to submit the required periodic schedule updates. While he acknowledged that there had been “several tropical storms” in September 2017, he observed that SFI had not requested a time extension. He demanded that SFI submit a recovery schedule per paragraph 3.9.3, Recovery Schedule (R4, tab 20 at 2-4) 56. On March 15, 2018, SFI met with USACE officials to discuss the project (tr. 1/215). SFI then made three important changes for 2018. First, it changed its project manager (tr. 3/21). Second, SFI added a second diver, which allowed for one diver at each end of the mat to maneuver it into place (tr. 1/219; tr. 3/178; tr. 6/44-45). This was important because, according to Sal Daher, SFI’s superintendent, SFI had had to pick up mats, which weighed about 12,000 pounds, and reposition them as many as 40 times to get them in the proper place (tr. 2/83, 102). Third, SFI added a second barge, used as a dedicated material barge, and a second tug, that allowed for continuous placement rather than stopping for two or more days while the single barge returned to port and reloaded (tr. 1/190; tr. 2/68; 3/79; tr. 6/44). 57. SFI was able to begin mat placement in April 2018, in line with the placement season referenced in the solicitation. On April 18-20, it placed 8, 10, and 18 mats respectively (ex. G-14 at 3; app. ex. D-11 at 2) and appeared to be off to a good start. But on April 21 USACE shut down SFI’s mat placement because it did not have a standby diver (R4, tab 5 at 1168). ACO Cotter testified credibly that putting a diver in the water without a standby diver was a “heinous safety violation” (tr. 6/59). SFI remained shut down until April 28, 2018 (R4, tab 26 at 2). 58. Despite this initial misstep, the changes made by SFI resulted in a dramatic 11  DOCUMENT FOR PUBLIC RELEASE The decision issued on the date below is subject to an ASBCA Protective Order. This version has been approved for public release. improvement in performance. We observe, for example, that between June 1 and 12, 2018, SFI placed more mats than in all of 2017 (Ex. G-14 at 3-4; app. ex. D11). If it had continued at this rate, SFI would have completed the contract early. But it did not recognize until it was too late that it was placing mats more quickly than it was manufacturing them. While SFI eventually ordered its supplier to increase production, it was too late. (Tr. 3/203, 208). SFI released the second barge and tug boat from the site (tr. 3/210). While it is not clear exactly when it stopped working with the two- barge, two-tug system, SFI stopped recording hours for the second tug in its quality control reports on June 22, 2018 (R4, tab 5 at 1558) SFI’s expert calculated that SFI’s average daily mat placement then dropped by more than 50% (app. ex. D-10). 59. SFI brought the second barge and tug back to the site on August 8, 2018 (R4, tab 5 at 1694). Another burst of productivity followed; SFI placed more mats from August 8 to 24 than it had in the 2017 season (ex. G-14 at 4; app. ex. D11 at 4). 60. The sea conditions remained good for the rest of August with waves ranging from about 1.0 to 2.5 feet (ex. D-6 at 11), but in the period from August 25-31, 2018, SFI conducted placement on only August 29-30, when it placed 45 mats. The delays during this period were the fault of SFI because it had placed 18 mats in the wrong location and it also had to wait for concrete test results (R4, tab 5 at 1745, 1747, 1755; ex. G-14 at 4; app. ex. D-11 at 4). 61. The weather had already started to decline by September 8, 2018, when USACE noted no work that day due to powerful swells and an approaching hurricane (R4, tab 4 at 1052). On September 11, 2018, USACE noted that SFI was demobilizing due to the approach of Hurricane Florence (id. at 1053). On September 17, 2018, SFI stated in its quality control report that it had lost seven days due to “storm activity” (R4, tab 5 at 1800). SFI placed 51 mats on September 19-20, 2018, but that was the end of its 2018 season (ex. G-14 at 5; app. ex. D-11 at 5). 62. On September 28, 2018, SFI notified ACO Cotter that due to deteriorating conditions after September 20, 2018 it had decided to demobilize from the site (R4, tab 33). 63. In 2018, SFI placed 69.4% of the mats, more than quadrupling its 2017 performance, but not enough to make up for the poor results in that year (ex. G-14; app. ex. D11). 64. SFI mobilized for a third season and resumed mat placement on June 5, 2019. It placed the final mats on June 22, 2019. (R4, tab 5 at 2323, 2357). Due to some minor changes, the final number of mats increased from 1,620 to 1,638 (ex. G-14 at 5). 12  DOCUMENT FOR PUBLIC RELEASE The decision issued on the date below is subject to an ASBCA Protective Order. This version has been approved for public release. SFI’s Certified Claim 65. On October 21, 2020, SFI submitted a certified claim seeking $2,838,231 (R4, tab 50). The crux of SFI’s claim was that the weather in April, May, and September “differed vastly from the working conditions forecasted in the Contract Documents” (id. at 13). Among other things, SFI complained that during these months, waves often exceeded one meter 2, which caused “murky underwater conditions” and “rendered the requisite underwater diving operations unsafe, as well as impeding the ability of the crane barge to remain on position for the precision mat placement requirements.” (Id.) SFI contended that it was able to work on only 11.1% of the available workdays in September 2017, 46.2% of the workdays in April and May 2018, and on 29.2% of the workdays in September 2018 (id.). 66. Exhibit 8 to SFI’s claim was a report by Locus Weather (R4, tab 50(h)). While not signed, the first page of the document lists four people with degrees in Atmospheric Sciences or Meteorology. The report states that the best source of data is the weather buoys in the region and that Locus Weather had used the data from the National Data Buoy Center. The wave data in the report is based on Buoy 41113 (16 miles to the north of the project site), Buoy 41009 to the northeast (20 miles east of Cape Canaveral), and Buoy 41114 (40 miles to the south) (id. at 3; ex. D-5). 67. Locus Weather observed that wave heights greater than one meter occurred more frequently at Buoy 41009, “which makes sense as it is farther offshore” (id. at 4). It concluded that the other two buoys, which are closer to shore, “may be a better indicator of difficult conditions at the job site” but that data from 410009 “should not be totally discounted” (id.). Locus Weather prepared a spreadsheet identifying days when waves exceeded one meter. The spreadsheet supported SFI to the extent that it showed that most days from September 7, 2017, to the end of that month had waves of at least one meter and that there were also numerous days in April, May and September of 2018, with waves of at least one meter, albeit less so at Buoy 41113 (id. at 13-15, 19). 68. Because SFI’s claim focuses on poor water visibility and high waves/swells, we will summarize the evidence on both issues. 2 1 meter = 3.28 feet or 3 feet, 3 and 3/8 inches 13  DOCUMENT FOR PUBLIC RELEASE The decision issued on the date below is subject to an ASBCA Protective Order. This version has been approved for public release. Water Visibility 3 69. To begin, the Rule 4 file does not document a consistent problem with low visibility water. Appellant’s expert, Mr. Stynchcomb, summarized the evidence as follows: Q (App. counsel) And did you also assess visibility impacts in connection with this analysis? A There were constant complaints about turbidity, but the record only shows three or four days in which the -- the divers could not see. So that was a -- a bit more elusive to - - to try to pin down to a day. (Tr. 8/38-39) 70. Despite the lack of documentation, witness testimony convinced the Board that the site often had low visibility. SFI Superintendent Daher, Dr. Bodge, and COR Wilson all agreed that the water could be turbid or low visibility when there was significant wave activity (tr. 2/144; 5/35; 7/80). 71. The Board will now consider whether the low visibility impacted the divers, and whether the conditions were foreseeable by bidders. 72. SFI did not use ordinary laborers to place the mats but rather professional divers (tr. 1/102). Unrebutted testimony establishes that such divers often work in low visibility water. SFI’s president, Mr. Royo, Brevard’s consultant, Dr. Bodge, and USACE’s construction representative, Howard Lyons, all agreed on this point (tr. 1/105; 2/40; 5/36; 6/142, 194, 254). While this might have left the door open to testimony from the divers that the water was worse than the low visibility water that they usually experience, SFI did not present testimony from any of the divers. Accordingly, SFI has not proven that the visibility at the site was outside the range of what commercial divers ordinarily encounter. 73. As to foreseeability, we have already found that SFI did not ask USACE or any of its subcontractors about visibility prior to bid (finding 24). SFI seems to have 3 During the hearing, the parties frequently used the words “turbid” and “turbidity” when discussing low visibility water. Turbidity refers to sediment suspended in the water and is one cause of low visibility. From a coastal engineering perspective when discussing diving operations, it is more common to speak of “visibility.” (Tr. 4/240) 14  DOCUMENT FOR PUBLIC RELEASE The decision issued on the date below is subject to an ASBCA Protective Order. This version has been approved for public release. had a rather passive approach; Mr. Royo testified he did not discuss visibility with the subcontractors because he assumed they would tell him about any such issues without him asking (tr. 2/43). 74. Part of the problem may be SFI’s location in Broward County, Florida and its lack of ex