GLF Construction Corporation v. Fedcon Joint Venture et al, No. 8:2017cv01932 - Document 262 (M.D. Fla. 2021)

Court Description: OPINION AND ORDER. 1. Plaintiff GLF Construction Corporation takes nothing on its claim under the Miller Act (Count I) in Case No. 8:17-cv-1932-T-AAS. 2. Plaintiff GLF Construction Corporation is entitled to judgment in its favor and against onl y Defendant FEDCON Joint Venture, Defendant David Boland, Inc., and Defendant JT Construction Enterprise Corporation on Plaintiff's breach of contract claim (Count II) in Case No. 8:17-cv-1932-T-36AAS in the amount of $577,246.93. 3. Plaint iff GLF Construction Corporation takes nothing on its claim for unjust enrichment (Count III) in Case No. 8:17-cv-1932-T-36AAS. 4. Plaintiff GLF Construction Corporation takes nothing on its claim under the Miller Act (Count I) in Case No. 8:17-cv-26 50-T-36TGW. 5. Plaintiff GLF Construction Corporation is entitled to judgment in its favor and against only Defendant FEDCON Joint Venture, Defendant David Boland, Inc., and Defendant JT Construction Enterprise Corporation on Plaintiff's breach of contract claim (Count II) in Case No. 8:17-cv-2650-T-36TGW in the amount of $2,416,798.71. 6. Plaintiff GLF Construction Corporation takes nothing on its unjust enrichment claim (Count III) in Case No. 8:17-cv-2650-T-36TGW. 7. Defendant FEDCO N Joint Venture takes nothing on its claim for breach of contract (Count I) within its counterclaim in Case No. 8:17-cv-1932-T-36AAS. 8. Defendant FEDCON Joint Venture takes nothing on its claim for breach of bond (Count II) within its counterclaim i n Case No. 8:17-cv-1932-T-36AAS. 9. Defendant FEDCON Joint Venture takes nothing on its claim for breach of contract (Count I) within its counterclaim in Case No. 8:17-cv-2650-T-36TGW. 10. Defendant FEDCON Joint Venture takes nothing on its claim for breach of bond (Count II) within its counterclaim in Case No. 8:17-cv-2650-T-36TGW. 11. The Clerk is directed to enter judgment accordingly as to Case No. 8:17-cv-1932-T-36AAS and as to Case No. 8:17-cv-2650-T 36TGW. 12. The Clerk is further directed to close these cases. Signed by Judge Charlene Edwards Honeywell on 1/28/2021. (GLP)

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GLF Construction Corporation v. Fedcon Joint Venture et al Doc. 262 Case 8:17-cv-01932-CEH-AAS Document 262 Filed 01/28/21 Page 1 of 192 PageID 44805 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION UNITED STATES OF AMERICA for the use and benefit of GLF CONSTRUCTION CORPORATION, a Florida profit corporation, Plaintiff, v. Case No: 8:17-cv-01932-T-36AAS Consolidated with: Case No. 8:17-cv-02650-T-36TGW FEDCON JOINT VENTURE, a Florida joint venture, DAVID BOLAND, INC., a Florida profit corporation, JT CONSTRUCTION ENTERPRISE CORPORATION, and WESTERN SURETY COMPANY, Defendants. ____________________________________ FEDCON JOINT VENTURE, Counter-Plaintiff, v. GLF CONSTRUCTION CORPORATION and FIDELITY AND DEPOSIT COMPANY OF MARYLAND, Counter-Defendants. ___________________________________/ OPINION AND ORDER I. INTRODUCTION This cause came before the Court during a thirteen-day bench trial held in October and December of 2019. Following the trial, the parties attended a mediation conference on January Dockets.Justia.com Case 8:17-cv-01932-CEH-AAS Document 262 Filed 01/28/21 Page 2 of 192 PageID 44806 22, 2020 (Doc. 230) and submitted proposed findings of fact and conclusions of law on May 1, 2020. Docs. 249, 251. Upon due consideration of the testimony, exhibits received into evidence, argument of counsel, and the applicable law, and being fully advised in the premises, the following, issued pursuant to Federal Rule of Civil Procedure 52(a), constitutes the Court’s findings of fact and conclusions of law. 1 II. FINDINGS OF FACT 2 A. Overview of the Parties 1. GLF Construction Corporation (“GLF”) is a corporation organized and existing under the laws of Florida, and at all times material hereto was engaged in the business of providing heavy civil contracting services. 3 GLF’s principal office and place of business is in Miami, Florida. Id. In addition to being registered in the state of Florida, GLF is also registered to do business in Louisiana. 4 2. FEDCON Joint Venture (“FEDCON”) is a Florida-based joint venture comprised of David Boland, Inc. and JT Construction Enterprise Corporation (“JT 1 Throughout this Opinion and Order, the Court may adopt, without attribution, language proposed by one party to the dispute. In all such instances, the findings or conclusions in question have become those of the Court, based on the Court’s review of the evidence and the law. To the extent that any of the Court’s findings of fact may be considered conclusions of law, or vice versa, they should be considered as such. 2 These consolidated cases involve two complex and highly technical construction projects, each composed of two work fronts, the construction of which was subject to many factors over the course of numerous months, such as completion of predecessor activities and high river restrictions. The prime contracts and subcontracts are extensive. The parties entered over 3,400 exhibits into evidence. The trial transcript spans over 2,800 pages. Unfortunately, the parties’ proposed findings of fact fall short in citing to this immense record. Factual findings are proposed with improper support, incomplete support, or no support at all. Incorrect calculations of damages are offered. Exhibits that are not in evidence are cited. Trial exhibit numbers are utilized rather than document numbers on CM/ECF, requiring the Court to match the trial exhibit to the corresponding document on CM/ECF. Against this backdrop, and without the expected assistance from the parties, the Court endeavored through the record to fashion these findings of fact. 3 Joint Pretrial Statement, Doc. 134 ¶1. Unless noted otherwise, all citations to the parties’ Joint Pretrial Statement reference Section IX thereof, which lists those facts admitted by the parties which required no proof at trial. 4 Id. 2 Case 8:17-cv-01932-CEH-AAS Document 262 Filed 01/28/21 Page 3 of 192 PageID 44807 Construction”), with its principal office and place of business located in Titusville, Florida. 5 Subsequent to its formation, FEDCON registered to do business in Louisiana and began providing general contracting services. 6 David Boland, Inc. is a corporation organized and existing under the laws of Florida, with its principal office and place of business located in Titusville, Florida. 7 In addition to being registered in Florida, David Boland, Inc. is also registered to do business in Louisiana and provides general contracting services as a joint venturer of FEDCON. 8 JT Construction is a corporation organized and existing under the laws of Florida, with its principal office and place of business located in Orange City, Florida. 9 In addition to being registered in Florida, JT Construction is also registered to do business in Louisiana. 10 3. Western Surety Company (“Western”) is a corporation organized and existing under the laws of South Dakota, with its principal office and place of business located in Sioux Falls, South Dakota. 11 At all times material hereto, Western was duly authorized to engage in the business of executing surety bonds in Florida and Louisiana. 12 Fidelity and Deposit Company of Maryland (“F&D”) is a corporation organized and existing under the laws of Illinois. 13 At all times material hereto, F&D was duly authorized to engage in the business of executing surety bonds in Maryland and is authorized to do business in Florida. 14 B. Overview of the Projects 5 Id. at ¶2. Given this joint venture, the Court refers to David Boland, Inc. as “FEDCON” on occasion throughout this Opinion and Order, which is a practice also utilized by the parties in their proposed findings of fact. 6 Id. 7 Id. at ¶3. 8 Id. 9 Id. at ¶4. 10 Id. 11 Id. at ¶5. 12 Id. 13 Id. at ¶6. 14 Id. 3 Case 8:17-cv-01932-CEH-AAS Document 262 Filed 01/28/21 Page 4 of 192 PageID 44808 i. The Prime Contracts and the Subcontract Agreements 4. On October 18, 2013, FEDCON entered into a written contract No. W912P8- 14-C-0002 with the United States Army Corps of Engineers (the “Corps” or “USACE”) known as Resilient Features, WBV, HSDRRS, Mississippi River Levee, Oak Point to Augusta, WBV-MRL 2.2, Plaquemines Parish, Louisiana (the “2.2 Project”). 15 The 2.2 Project called for FEDCON to repair and raise substandard levees along a section of the Mississippi River between the cities of Oak Point, Louisiana and Augusta, Louisiana. 16 5. Pursuant to the prime contract with the Corps for the 2.2 Project (the “2.2 Project Prime Contract”), and in accordance with the Miller Act, 40 U.S.C. § 3131, FEDCON, as principal, and Western, as surety, executed and delivered a payment bond to the Corps for the 2.2 Project. 17 6. On January 22, 2014, FEDCON entered into a written subcontract agreement with GLF for work on the 2.2 Project (the “2.2 Project Subcontract Agreement”). 18 Pursuant to the terms of the 2.2 Project Subcontract Agreement, GLF, as principal, and F&D, as surety, executed and delivered to FEDCON a payment and performance bond. 19 7. Similarly, on December 5, 2013, FEDCON entered into a written contract No. W912P8-14- C-0011 with the Corps known as Resilient Features, WBV, HSDRRS, Mississippi River Levee, Augusta to Oakville (A), WBV-MRL 1.2a, Plaquemines Parish, Louisiana (the “1.2a Project”). 20 The 1.2a Project called for FEDCON to repair and raise substandard levees along a section of the Mississippi River between the cities of Augusta, Louisiana and Oakville, 15 Id. at ¶7. Id. 17 Id. at ¶11. 18 Id. at ¶9. 19 Id. at ¶12. 20 Id. at ¶8. 16 4 Case 8:17-cv-01932-CEH-AAS Document 262 Filed 01/28/21 Page 5 of 192 PageID 44809 Louisiana. 21 8. Like the 2.2 Project, FEDCON, as principal, and Western, as surety, executed and delivered to the Corps a payment bond for the 1.2a Project, pursuant to the terms of the prime contract with the Corps for the 1.2a Project (the “1.2a Project Prime Contract”), and in accordance with the Miller Act, 40 U.S.C. § 3131. 22 9. Also like the 2.2 Project, FEDCON entered into a written subcontract agreement with GLF for work on the 1.2a Project (the “1.2a Project Subcontract Agreement”) on April 3, 2014. 23 Pursuant to the terms of the 1.2a Project Subcontract Agreement, GLF Construction, as principal, and F&D, as surety, executed and delivered to FEDCON a payment and performance bond. 24 10. GLF was involved in FEDCON’s bid for the projects, as FEDCON teamed up with GLF to develop a joint approach for how the projects could be performed and executed. 25 FEDCON used the information gathered from meetings with GLF’s personnel to develop its bid. 26 During at least one of these meetings, GLF and FEDCON discussed production, as that would determine how long the projects would take to construct and implicate FEDCON’s costs for the projects. 27 GLF and FEDCON also discussed what GLF needed or wanted in terms of a work platform, an access road, and the materials and provision thereof. 28 FEDCON used the production information to develop “prebid schedules” so that it knew the duration of the project, and, in terms of GLF’s requests for an access road or a temporary work platform, FEDCON 21 Id. Id. at ¶13. 23 Id. at ¶10. 24 Id. at ¶14. 25 Testimony of David Boland, Doc. 232 at 97:2–4, 22–25, 98:1–3. 26 Id. at 98:8–11. 27 Id. at 98:18–24. 28 Id. at 99:5–7. 22 5 Case 8:17-cv-01932-CEH-AAS Document 262 Filed 01/28/21 Page 6 of 192 PageID 44810 ensured that it priced such work accordingly. 29 11. Both the 2.2 Project Subcontract Agreement and the 1.2a Project Subcontract Agreement expressly incorporated the respective prime contract for the projects, providing, in a section labeled “Contract Documents”: 1.A This Subcontract Agreement consists of the terms and provisions of this agreement including all documents or specific portions of documents referred to herein or in the Exhibits attached hereto and hereby incorporated by reference thereby making them a part hereof, the Prime Contract between the Owner and the Contractor, including all general, supplementary and special conditions, drawings, specifications, addenda, forms, and documents forming a part of said Prime Contract and any modifications to the Prime Contract subsequent to the execution of this Subcontract Agreement; all of which are hereinafter referred to as the “Contract Documents.” 30 12. Additionally, both the 2.2 Project Subcontract Agreement and the 1.2a Project Subcontract Agreement require GLF, as subcontractor, to furnish and pay for all labor, testing, materials, scaffold, transportation, machinery, tools, apparatus, required shop drawings, services, and equipment necessary to perform certain work described in an attached Exhibit “A,” which, in turn, required GLF to furnish and provide these things to complete the work as depicted on the contract drawings and set forth in specifications pertaining to concrete, sheet piling, pile load tests, steel pipe piles, and scour protection. 31 13. Generally, the sequence of the work on both projects involved: (a) demolition of the scour protection and degrading of the existing earthen levee; (b) construction of temporary flood protection (“TFP”), which is an earthen levee that is faced with stone to provide flood protection on a temporary basis while the levee is breached and construction is in process; (c) 29 Id. at 99:8–15. Docs. 216-116 at 1; 216-132 at 1. 31 Docs. 216-116 at 2; 216-117 at 1; 216-132 at 2, 15. 30 6 Case 8:17-cv-01932-CEH-AAS Document 262 Filed 01/28/21 Page 7 of 192 PageID 44811 driving of steel sheet piles, which were used to prevent water from seeping underneath the floodwall; (d) driving of steel pipe piles; (e) placement of the stabilization slab; (f) placement of reinforcing steel and the concrete foundation on the stabilization slab; and (g) placement of reinforcing steel and the concrete wall on the foundation. 32 14. Per the subcontracts for each project, GLF was to provide work on two work fronts for each project. 33 15. In accordance with FEDCON’s coordination and scheduling of the work to be performed by its subcontractors, construction of the access road, construction of the TFP, and degrading of the levee and construction of the work platform, all of which were to be performed by FEDCON’s subcontractor, HDB Construction, Inc. were predecessor work activities to GLF’s performance of its work activities including driving sheet pilings, driving pipe pilings and forming and pouring the concrete T-walls (furnishing and placement of steel rebar which was performed by a separate subcontractor on each project was also a predecessor activity to GLF’s pouring the concrete T-walls). 34 16. FEDCON received both compensable and non-compensable extensions of time from the Corps on each project such that the actual completion date aligns with the adjusted contract completion date for both projects and, as a result, FEDCON was not assessed any liquidated damages by the Corps on either project. 35 ii. 2.2 Project 17. The 2.2 Project involved a 6,800-foot lineal foot floodwall constructed of concrete, steel sheet piles, steel pipe piles as a foundation, concrete foundation, and a concrete 32 See Testimony of David Boland, Doc. 232 at 87:22–25, 90:23–25, 91:1–25, 92:1–25, 93:1–19. Docs. 216-116 at 2; 216-132 at 15; Testimony of David Boland, Doc. 233 at 55:18–25, 56:1. 34 Doc. 134 ¶19. 35 Id. at ¶34. 33 7 Case 8:17-cv-01932-CEH-AAS Document 262 Filed 01/28/21 Page 8 of 192 PageID 44812 wall. 36 The 2.2 Project was comprised of 118 “monoliths,” which is a 60-foot section of concrete wall. 37 18. The 2.2 Project Prime Contract limited FEDCON to working in 500 linear foot segments during high river season, which was from December 15 to June 15. 38 This section provided: “At such time that the Mississippi River is at or above elevation +11.0 feet, NAVD 88 (2004.65) at the Carrolton gage (New Orleans District), all construction work shall cease until such time as the elevation subsides below +11.0 feet.” 39 Further, delays to FEDCON’s operations from ceasing work when the Mississippi River exceeded elevation +11.0 feet were subject to the provisions of Section 00700 Contract Clause, entitled “DEFAULT (FIXED-PRICE CONSTRUCTION) (FAR 52.249-10), which provided, in part, that the time for completing the work shall be extended if, in the judgment of the Contracting Officer, the findings warrant such action. 40 19. FEDCON was required to “leave at least 300 linear feet of continuously undisturbed existing levee or completed levee/floodwall” between each 500 linear foot segment.41 The 2.2 Project Prime Contract similarly limited FEDCON to work in 500 linear foot segments during hurricane season, which was from June 1 to November 30. 42 The 2.2 Project Prime Contract required construction from Stations 480+00 to 487+00—approximately Monolith 063 to Monolith 075—to be performed outside of hurricane season. 43 Further, the 2.2 Project Prime Contract limited FEDCON to a maximum of three separate segments during the life of the contract and 36 Testimony of David Boland, Doc. 232 at 81:18–22. Id. at 83:17–22. 38 Doc. 216-11 at 22. 39 Doc. 216-12 at 1. 40 Id.; Doc. 216-9 at 6. 41 Doc. 216-11 at 22. 42 Id. at 23. 43 Id.; Testimony of Lorenzo Ellis, Doc. 241 at 20:8–10; Testimony of David Boland, Doc. 232 at 106:20–25. 37 8 Case 8:17-cv-01932-CEH-AAS Document 262 Filed 01/28/21 Page 9 of 192 PageID 44813 required FEDCON to leave at least 300 linear feet of continuously undisturbed existing levee, or complete levee/floodwall as depicted in the contract drawings and specifications, between each 500 linear foot segment. 44 20. Pursuant to the 2.2 Project Subcontract Agreement, “others” were responsible for constructing and maintaining (1) “a temporary access road approximately 12’ wide and extending the length of the levee, located adjacent to the temporary work platform on the protected side of the levee”; and (2) two temporary work platforms on the protected side of the levee, which were required to be “approximately 30’ wide x 600’ long, located 10’ from the centerline of the steel sheet pile, and [to] be removed and extended in segments for the entire length of the levee as the Work progresses.” 45 As examined in greater detail herein, FEDCON, as contractor, and HDB Construction, Inc., as subcontractor, entered into a subcontract agreement, dated December 26, 2013, which required HDB to construct, maintain, and remove a temporary access road and two temporary work platforms for the 2.2 Project. 46 iii. 1.2 Project 21. The 1.2a Project was located approximately one mile south of the 2.2 Project.47 The 1.2a Project was of similar construction as the 2.2 Project, although the monoliths were a little shorter in length. 48 22. Under the 1.2a Project Subcontract Agreement, “others” were responsible for construction and maintaining (1) “a temporary access road approximately 15’ wide and extending the length of the levee, located adjacent to the temporary work platform on the protected side of 44 Doc. 216-12 at 22–23. Docs. 216-117 at 2; 134 ¶18. 46 Docs. 216-114 at 14, 215-115 at 1. 47 Testimony of David Boland, Doc. 232 at 81:25, 82:1. 48 Id. at 81:25, 82:1–2. 45 9 Case 8:17-cv-01932-CEH-AAS Document 262 Filed 01/28/21 Page 10 of 192 PageID 44814 the levee” and (2) two temporary work platforms, on the protected side of the levee, approximately 30 feet wide by 600 feet long and located 10 feet from the centerline of the steel sheet pile, which would be removed and extended in segments for the entire length of the levee. 49 Like the 2.2 Project, FEDCON, as contractor, and HDB Construction, Inc., as subcontractor, entered into a subcontract agreement, dated March 11, 2014, which required HDB Construction to construct, maintain, and remove a temporary access road and two temporary access roads on the protected side of the levee. 50 23. Also like the 2.2 Project, the 1.2a Project Prime Contract required all construction work to cease when the Mississippi River reached or exceeded elevation +11 feet until the river subsided below such elevation. 51 C. Procedural History 24. GLF filed a lawsuit for the 2.2 Project, which includes three counts: (1) a Miller Act Payment Bond claim pursuant to 40 U.S.C. § 3133(b)(3) against FEDCON, David Bolan, Inc., JT Construction, and Western for damages resulting from FEDCON’s various purported breaches of the 2.2 Project Subcontract Agreement; (2) a breach of contract claim against FEDCON, David Boland, Inc., and JT Construction, in which GLF alleges that FEDCON breached the 2.2 Project Subcontract Agreement; and (3) an unjust enrichment claim, pleaded in equity and in the alternative, against FEDCON, David Boland, Inc., and JT Construction. 52 25. In turn, FEDCON filed a counterclaim against GLF and F&D. 53 The counterclaim contains two counts: one count against GLF for its alleged material breach of the 2.2 Project 49 Doc. 216-132 at 17. Doc. 219-881 at 1, 14–15. 51 Doc. 216-50 at 12. 52 GLF Constr. Corp. v. FEDCON Joint Venture, et al., No. 8:17-cv-02650-T-36TGW (M.D. Fla.) (hereinafter, “GLF II”), Doc. 1 ¶¶37–59. 53 GLF II, Doc. 66. 50 10 Case 8:17-cv-01932-CEH-AAS Document 262 Filed 01/28/21 Page 11 of 192 PageID 44815 Subcontract Agreement (Count I) and one count against F&D for its alleged breach of the payment and performance bond (Count II). 54 26. GLF also filed a lawsuit against FEDCON, David Boland, Inc., JT Construction, and Western regarding GLF work on the 1.2a Project. 55 The operative, amended complaint for the 1.2a Project raises the same causes of action as GLF’s complaint for the 2.2 Project: (1) a Miller Act Bond Payment claim, pursuant to 40 U.S.C. § 3133(b), against FEDCON, David Boland, Inc., JT Construction, and Western for damages resulting from FEDCON’s various purported breaches of the 1.2a Project Subcontract Agreement; (2) breach of contract against FEDCON, David Boland, Inc., and JT Construction; and (3) an unjust enrichment claim against FEDCON, David Boland, Inc., and JT Construction, pleaded in equity and in the alternative. 56 27. FEDCON also filed a counterclaim against GLF and F&D in the lawsuit for the 1.2a Project, which, like the counterclaim for the 2.2 Project, contains two claims: (1) one claim of breach of contract against GLF, in which FEDCON alleges that GLF breached the 1.2a Project Subcontract Agreement; and (2) one claim for breach of bond against F&D. 57 28. The Court consolidated these two lawsuits on May 9, 2018. 58 The Court held a thirteen-day bench trial from October 21, 2019 – October 24, 2019, October 28 – October 31, 2019, and December 2, 2019 – December 6, 2019. D. The AZ Sheet Piling Materials and the PZ Sheet Piling Materials 29. Beginning with GLF’s claim on the 2.2 Project arising from FEDCON’s decision to substitute AZ 13-770 (“AZ”) steel sheet piling materials for the specified PZ-22 54 Id. at ¶¶28–39. Docs. 1, 38. 56 Doc. 38 ¶¶32–50. 57 Doc. 13 ¶¶19–29. 58 Doc. 45 at 1–2. 55 11 Case 8:17-cv-01932-CEH-AAS Document 262 Filed 01/28/21 Page 12 of 192 PageID 44816 (“PZ”) steel sheet piling materials, the parties stipulated to GLF’s entitlement to receive payment of the reasonable costs that it incurred in its efforts to drive the AZ steel sheet piling materials for thirty-eight (38) days prior to FEDCON’s decision not to proceed with the AZ steel sheet piling materials, switch back to the specified PZ sheet piling materials, and remove the AZ materials. 59 30. The Contract Specifications are based upon the use of PZ steel sheet piling materials, but the Specifications also permit FEDCON to substitute for the PZ steel sheet piling materials with an approved equal material. 60 31. In its estimate and bid for the 2.2 Project, FEDCON included the cost of AZ steel sheet piling material. 61 Additionally, a purchase order by FEDCON to Skyline Steel for the AZ materials included a provision that, if it became necessary for FEDCON to purchase PZ materials instead of the AZ materials, there would be an adjustment to the purchase order in the amount of $0.36/SF. 62 As such, FEDCON realized cost savings by including the price for AZ materials in its bid for the 2.2 Project, as reflected by this language in FEDCON’s purchase order. 63 32. After FEDCON was awarded the 2.2 Project Prime Contract, FEDCON prepared a submittal package for the AZ sheet piling material and submitted it to the Corps for approval. 64 The Corps approved the use of the AZ steel sheet piling material, subject to FEDCON demonstrating the drivability of the AZ steel sheet piling to the required tip elevation in the field. 65 FEDCON notified Skyline Steel of the qualified approval of the AZ 59 Doc. 134 ¶35. Id. at ¶36. 61 Id. at ¶37. 62 Id. 63 Testimony of Jason Whitworth, Doc. 234 at 191:2–23; Doc. 219-784 at 1. 64 Doc. 134 ¶38. 65 Id. 60 12 Case 8:17-cv-01932-CEH-AAS Document 262 Filed 01/28/21 Page 13 of 192 PageID 44817 steel sheet piling materials and advised Skyline that it would be required to demonstrate the drivability of the AZ steel sheet piling materials. 66 33. The 2.2 Project Subcontract Agreement was based upon FEDCON furnishing GLF with the specified PZ steel sheet piling materials and provided that sheet piles in accordance with Section 31 41 16.00 12 of the Specifications would be furnished and GLF’s scope of work included driving the steel sheet piling materials. 67 34. On March 3, 2014, FEDCON provided GLF with a copy of the Corps-approved AZ steel sheet pile submittals. 68 Prior to March 3, 2014, FEDCON had not informed GLF that it intended to submit the substitute AZ steel sheet piling materials for PZ steel sheet piling material, upon which the Specifications were based. 69 35. On July 15, 2014, the first delivery of AZ steel sheet piles occurred. 70 FEDCON did not perform or conduct any testing to demonstrate the drivability of the AZ sheet piling materials prior to delivery of the materials on the 2.2 Project. 71 GLF’s efforts to drive the AZ sheet pile materials became the testing to confirm drivability of the materials. 72 36. On July 18, 2014, GLF attempted to drive the AZ steel sheet piles for the first time. 73 On August 7, 2014, GLF outlined its position to FEDCON regarding the steel sheet pile driving issue. 74 On August 15, 2014 FEDCON conducted a conference call with GLF and various consultants to discuss the AZ steel sheet pile driving issue and to arrange for a “test driving” of 66 Id.; Testimony of David Boland, Doc. 233 at 156:16–19; Docs. 219-952 at 1; 219-742 at 1. Doc. 134 ¶39. 68 Id. at ¶40. 69 Id. 70 Id. at ¶41. 71 Doc. 199 at 1. 72 Id. 73 Doc. 134 ¶42. 74 Id. at ¶43. 67 13 Case 8:17-cv-01932-CEH-AAS Document 262 Filed 01/28/21 Page 14 of 192 PageID 44818 the AZ steel sheet piles. 75 37. GLF unsuccessfully attempted to drive the AZ steel sheet piling materials for several weeks. 76 At some point between August 1, 2014, and August 17, 2014, a consultant engaged by GLF transmitted a report to GLF regarding the installation of the sheet piles. 77 GLF did not provide this report to FEDCON, and Joseph Beaird, vice president and chief operations officer of GLF, testified that GLF did not do so because he did not necessarily agree with the report’s conclusion. 78 He disagreed that providing the report to FEDCON may have accelerated FEDCON’s decision not to use the AZ materials. 79 38. After communication between GLF and FEDCON regarding the issues that GLF encountered in attempting to drive the AZ steel sheet piling materials, it was decided that representatives of FEDCON and GLF, together with consultants that had been retained by both parties, would meet on site on August 19 and 20, 2014 to observe GLF’s attempts to drive the AZ steel sheet piling materials. 80 39. On August 20, 2014, GLF conducted the driving of the AZ steel sheet piles with representatives and consultants for FEDCON and GLF observing. 81 This field test to determine the drivability of the AZ sheet piling materials demonstrated that there were drivability issues. 82 40. On August 22, 2014, GLF sent a letter to FEDCON, summarizing the recent events and requesting direction. 83 On August 26, 2014, the Corps notified FEDCON that its work on the 2.2 Project was behind schedule, and FEDCON was directed to submit a 75 Id. at ¶44. Id. at ¶45. 77 Doc. 220-206 at 1–3. 78 Testimony of Joseph Beaird, Doc. 239 at 34:18–25. 79 Id. at 35:2–7. 80 Id. 81 Id. at ¶46. 82 Testimony of David Boland, Doc. 233 at 157:13–17. 83 Doc. 134 ¶48. 76 14 Case 8:17-cv-01932-CEH-AAS Document 262 Filed 01/28/21 Page 15 of 192 PageID 44819 narrative reflecting how it was going to complete the work within the contract duration. 84 FEDCON prepared and submitted a recovery schedule that revised the sequencing and logic for the work activities and reflected a revised plan to complete within the prime contract duration. 85 These revisions mitigated a portion of the prior delays to the 2.2 Project and all of the delays associated with the change from AZ steel sheet piling to PZ steel sheet piling. 86 41. On August 28, 2014, FEDCON informed GLF of the plan to change the type of steel sheet piles to the PZ sheet piles and directed GLF to remove the driven AZ sheet piles. 87 42. After receiving FEDCON’s direction to remove all of the AZ materials, GLF notified FEDCON that GLF would be submitting a Request for Change Order for all costs incurred in its attempts to drive the AZ steel sheet piling materials, as well as all of the costs for removal and stacking of the AZ steel sheet piling materials for pick up by Skyline Steel, pursuant to FEDCON’s direction. 88 In response, FEDCON advised that it would issue a change order for the costs associated with the test installation, pulling, and removal of the AZ steel sheet piling. 89 43. On September 4, 2014, FEDCON agreed that “the withdrawal and stacking costs to remove the AZ piles” constituted “a change to GLF’s contract” and that the test driving efforts on August 19, 2014 were reimbursable. 90 FEDCON also acknowledged GLF’s assertion that the selection of the AZ materials and subsequent reversion to the PZ materials constituted a change to the 2.2 Project Subcontract Agreement, the cost of which GLF was evaluating, and reserved 84 Id. at ¶47. Id. 86 Id. 87 Id. at ¶49. 88 Id. at ¶50. 89 Id. at ¶51. 90 Doc. 219-854 at 1. 85 15 Case 8:17-cv-01932-CEH-AAS Document 262 Filed 01/28/21 Page 16 of 192 PageID 44820 its judgment until GLF submitted such costs for FEDCON’s assessment. 91 44. On September 25, 2014, all of the AZ steel sheet piles were removed from the 2.2 Project site. 92 On September 28, 2014, FEDCON advised GLF that it awaited receipt of GLF’s request for equitable adjustment. 93 On November 4, 2014, FEDCON inquired as to the status of GLF’s request for equitable adjustment relating to the AZ materials. 94 On the same day, GLF submitted its request for equitable adjustment (“REA”) for the costs associated with its attempts to drive the AZ steel sheet piling materials and the costs associated with the removal of the AZ materials and preparation of same for pick up by Skyline Steel, which request reflected $476,733.17 in direct costs and $60,800.00 in extended general conditions for a total of $537,573.17. 95 On November 25, 2014, GLF submitted its REA binder to FEDCON. 96 45. On February 24, 2015 FEDCON responded to GLF’s REA, in which it denied GLF’s request for the costs associated with GLF’s efforts to drive the AZ materials, except for the FEDCON-directed test driving on August 20 and 21, 2014, and offered $30,902.79 for the costs for test driving, removal of the AZ materials, and preparation of same for pick up by Skyline Steel. 97 46. GLF’s claim for FEDCON’s decision to change the sheet piling materials from PZ to AZ is in the amount of $469,453.06. 98 The claim includes GLF’s direct costs of labor, equipment and supervision, plus reasonable mark-up in accordance with the 2.2 Project Subcontract Agreement, in connection with GLF’s attempts to drive the AZ materials, and 91 Id. Doc. 134 ¶52. 93 Id. at ¶53. 94 Id. at ¶54. 95 Id. at ¶56. 96 Id. at ¶55. 97 Id. at ¶57. 98 Doc. 218-766 at 2. 92 16 Case 8:17-cv-01932-CEH-AAS Document 262 Filed 01/28/21 Page 17 of 192 PageID 44821 pursuant to FEDCON’s direction to remove and stack the AZ materials once the decision was made to revert back to the specified PZ materials. 99 47. During trial, Lorenzo Ellis, who served as project engineer and then project manager for GLF, testified regarding the details of this claim. 100 Although Mr. Ellis did not prepare the claim, he was involved in gathering information, he provided input, and he reviewed it before GLF submitted it to FEDCON. 101 48. FEDCON has stipulated that it will pay GLF the reasonable costs associated with attempts to drive and remove the AZ materials. 102 However, as part of the stipulation between the parties, FEDCON has asserted its defense that portions of GLF’s costs in its claim are not recoverable under the 2.2 Project Subcontract Agreement, including 1) amounts not supported by GLF’s certified payroll and 2) amounts not supported by GLF’s daily time sheets. 103 FEDCON maintains that other costs included in GLF’s claim are either unreasonable or delay related costs and are not recoverable pursuant to the provisions in Paragraphs 6.B, 10.A, and 12.B of the 2.2 Project Subcontract Agreement. 104 FEDCON also contends that the equipment costs included in GLF’s claim should be based on EP-1110 rates and not the Blue Book rates. 105 Lastly, FEDCON contends that portions of GLF’s costs are delay related damages and are therefore precluded by the terms and conditions of the 2.2 Project Subcontract Agreement. 106 49. According to FEDCON, GLF is owed only $139,801.80, which FEDCON credited towards the amount that GLF purportedly owes FEDCON arising out of its purported 99 Testimony of Lorenzo Ellis, Doc. 240 at 177:13–25, 178:1–3. See id. 101 Id. at 46:6–13, 171:7–23. 102 Doc. 134 ¶58. 103 Id. at ¶35. 104 Id. at ¶58. 105 Id. at ¶35. 106 Id. 100 17 Case 8:17-cv-01932-CEH-AAS Document 262 Filed 01/28/21 Page 18 of 192 PageID 44822 multiple breaches of the 2.2 Project Subcontract Agreement and its termination. 107 David Boland testified that this claim is excessive for a variety of reasons. First, Mr. Boland testified that he evaluated the submitted labor component against GLF’s certified (i.e., sworn) payrolls and reduced any labor claim amounts that were unsupported by the certified payrolls, which he considered to be more reliable than daily reports cited in the claim. 108 Second, Mr. Boland testified the most significant reduction he made stemmed from GLF’s use of Blue Book equipment rates for the equipment, rather than EP 1110 rates. 109 The Court previously advised towards the conclusion of the trial that it would utilize the EP 1110 rates, rather than the Blue Book rates. 110 Third, David Boland testified that he eliminated all delay-related damages on the basis of the “no damage for delay” provision in the 2.2 Project Subcontract Agreement.111 FEDCON witnesses testified that delays attributed to FEDCON resulting from the use of the AZ materials were originally determined to be 45 days and that revisions to logic and sequencing in the recovery schedule submitted by FEDCON reduced this delay by 39 days. 112 50. However, GLF maintains that all of the costs are direct costs of the attempts to drive the AZ materials, including the costs of labor and equipment, and supervision for the performance of that work, as well as the costs associated with labor and equipment that GLF had mobilized to perform the pipe pile driving work that was scheduled by FEDCON to follow the driving of the AZ materials by 38 days. 113 GLF further maintains that, to the extent that any of the costs are deemed to be delay related costs or damages, the provisions of the 2.2 Project 107 Doc. 222-307 at 1. Testimony of David Boland, Doc. 232 at 186:5–25, 187:1–3. 109 Id. at 187:4–8. 110 Doc. 244 at 91:14–25, 92:1–4. 111 Testimony of David Boland, Doc. 232 at 187:18–25, 188:1–3. 112 Testimony of David Boland, Doc. 233 at 163:11–24; Testimony of Angela Sist, Doc. 235 at 17:7–12. 113 Doc. 134 ¶59. 108 18 Case 8:17-cv-01932-CEH-AAS Document 262 Filed 01/28/21 Page 19 of 192 PageID 44823 Subcontract Agreement do not bar or preclude recovery of same. 114 E. Temporary Access Roads i. The Subcontracts, Section 01100, and EM 385-1-1 51. As mentioned above, both the 2.2 Project Subcontract Agreement and the 1.2a Project Subcontract Agreement, in describing the work to be performed, required “others” to construct and maintain a temporary access road. Jason Whitworth, who served as a construction manager on the 2.2 Project and 1.2a Project for FEDCON, testified that it was FEDCON’s responsibility to provide access to GLF in order for GLF to have the ability to perform its work.115 The access roads were needed for the delivery of materials. 116 52. The 2.2 Project Subcontract Agreement described the temporary access road to be provided as “a temporary access road approximately 12’ wide and extending the length of the levee, located adjacent to the temporary work platform on the protected side of the levee.”117 Similarly, the 1.2a Project Subcontract Agreement described the temporary access road to be provided as “a temporary access road approximately 15’ wide and extending the length of the levee, located adjacent to the temporary work platform on the protected side of the levee.” 118 53. Each subcontract agreement incorporated Section 01100 of the respective prime contract, which was the “General Provisions” section. 119 Section 01100(3) stated that the “safety provisions as specified herein refer to the Sept[ember] 2008 edition of EM 385-1-1.” 120 Section 01100(3)(g) addressed “Haul Roads,” providing that, “[w]henever practical, one-way haul roads 114 Id. Testimony of Jason Whitworth, Doc. 234 at 115:11–14, 117:17–22, 199:14–17. 116 Testimony of David Boland, Doc. 232 at 210:11–17. 117 Doc. 216-117 at 1. 118 Doc. 216-132 at 17. 119 See Testimony of David Boland, Doc. 233 at 13:17–19. 120 Docs. 216-316 at 4; 216-49 at 12. 115 19 Case 8:17-cv-01932-CEH-AAS Document 262 Filed 01/28/21 Page 20 of 192 PageID 44824 shall be used on this contract.” 121 The 2.2 Project Prime Contract provided that haul roads “shall be graded and otherwise maintained to keep the surface free from potholes, ruts, and similar conditions that could result in unsafe operation.” 122 The 2.2 Project Prime Contract also provided: One-way haul roads for off-the-road equipment: e.g., belly dumps, scrapers, and off-the-road trucks shall have a minimum usable width of 25-feet. One-way haul roads for over-the-road haulage equipment only (e.g., dump trucks, etc.) may be reduced to a usable width of 15-feet. When the Contracting Officer determines that it is impractical to obtain the required width for one-way haul roads (e.g., a road on top of a levee), a usable width of not less than 10feet may be approved by the Contracting Officer, provided a positive means of traffic control is implemented.” 123 54. Similarly, the 1.2a Project Prime Contract stated: When the Contracting Officer determines that it is impractical to obtain 15’ minimum width for one-way haul roads (e.g., a road on top of a levee), a usable width of not less than 10-feet may be approved by the Contracting Officer, provided a positive means of traffic control is implemented. 124 55. EM 385-1-1 is a Safety and Health Requirements Manual published by the Corps. 125 The parties agree that EM 385-1-1 is part of the Contract Documents for the projects. 126 56. Section 4 of the EM 385-1-1 is entitled “Temporary Facilities” and subsection 04.B is entitled “Access/Haul Roads.” 127 Subsection 04.B requires “[a]ccess/haul roads” to be “designed in accordance with current engineering criteria” and requires the Contractor to “provide the GDA with a copy of the Access/Haul Road Plan for review and acceptance.” 128 Work on the haul road is prohibited from commencing until the GDA accepts the plan. 129 This subsection also 121 Docs. 216-316 at 66; 216-49 at 14. Doc. 216-316 at 7. 123 Id. 124 Doc. 216-49 at 14. 125 See Doc. 216-81 at 1. 126 Testimony of David Boland, Doc. 233 at 14:16–18. 127 Docs. 216-82 at 30, 216-83 at 1. 128 Doc. 216-83 at 1. 129 Id. 122 20 Case 8:17-cv-01932-CEH-AAS Document 262 Filed 01/28/21 Page 21 of 192 PageID 44825 sets forth the items that such plan must address, including: drainage controls, “Maintenance requirements, including roadway hardness and smoothness and dust control”; and “Equipment usage, traffic density and hours of operation.” 130 Other requirements are also listed. 131 57. Craig Hildebrandt, vice president of operations for David Boland, Inc., refused to acknowledge the applicability of section 4.B of EM 385-1-1 to the temporary access roads constructed by FEDCON. 132 58. As mentioned above, FEDCON entered into subcontracts with HDB Construction for the construction, maintenance, and removal of a temporary access road for the 2.2 Project and the 1.2a Project. 59. The subcontract between HDB Construction and FEDCON for the 2.2 Project required HDB to construct, maintain, and remove a temporary access road for the 2.2 Project as directed by FEDON, which included the following: 1. A compacted, level earth surface for use by cranes, concrete trucks, and other heavy vehicles during construction. 2. Existing soil shall be utilized as fill. 3. Approximately 12’ wide and extended the length of the levee, located adjacent to the temporary work platform. 4. A continuous layer of separator geotextile over the compacted earth and six (6) inches of compact aggregate over the geotextile.133 60. The subcontract between HDB and FEDCON for the 1.2a Project required HDB to construct, maintain, and remove a temporary access road, including entries, on the protected side of the levee as directed by FEDCON, which included: 1. A stabilized, compacted, and level earth subgrade with a compact aggregate surface for use by crane, concrete trucks, and other heavy 130 Id. Id. at 2–3. 132 Testimony of Craig Hildebrandt, Doc. 234 at 259:5–25, 260:1–21. 133 Doc. 216-114 at 14. 131 21 Case 8:17-cv-01932-CEH-AAS Document 262 Filed 01/28/21 Page 22 of 192 PageID 44826 vehicles during construction. 2. Existing soil shall be utilized as fill. 3. Approximately 15’ wide and extending the length of the levee, located adjacent to the temporary work platform. 4. A continuous layer of separator geotextile over the stabilized and compacted earth and six (6) inches of compacted, imported aggregate over the geotextile. 5. Maintenance of the temporary access road does not include importing of additional aggregate material beyond the six (6) inches of compacted aggregate. Should additional imported aggregate material be needed for the maintenance of the temporary access road, through no fault of the Subcontractor, a subcontract agreement change order will be issued in accordance with Item VIII of Exhibit D. 134 61. Thus, FEDCON determined, per its subcontract with HDB for the 2.2 Project, that the temporary access road to be provided to GLF would be constructed using a “continuous layer of separator geotextile over the compacted import soil and six (6) inches of compacted aggregate over the geotextile.” 135 Similarly, FEDCON determined, per its subcontract with HDB for the 1.2a Project, that the temporary access road to be provided to GLF would be constructed using a “continuous layer of separator geotextile over the stabilized and compacted earth and six (6) inches of compacted, imported aggregate over the geotextile.” 136 62. HDB’s subcontracts for the 1.2a Project and the 2.2 Project each contained Paragraph 1.A from the subcontract agreements between GLF and FEDCON regarding “Contract Documents.” 137 Alonzo Harrison, HDB’s president, testified as to his belief that EM 385-1-1 applied to the scope of work, including the temporary access roads, on the basis that it was 134 Doc. 219-881 at 1, 14. Doc. 216-114 at 14; Testimony of Alonzo Harrison, Doc. 238 at 20:9–13. 136 Doc. 219-881 at 14; Testimony of Alonzo Harrison, Doc. 238 at 20:9–13. 137 Docs. 216-114 at 1; 219-991 at 1. 135 22 Case 8:17-cv-01932-CEH-AAS Document 262 Filed 01/28/21 Page 23 of 192 PageID 44827 incorporated by reference into HDB’s subcontract. 138 Harrison also testified that HDB did not propose the scope of work to be performed regarding the construction of the temporary access road; the design belonged to FEDCON. 139 63. When asked whether FEDCON provided HDB with any engineering data or recommendations or design regarding the construction of the access road during HDB’s time on the project or at least during the first year, Harrison indicated that FEDCON had not provided anything aside from the contract itself and an overlay of the project showing where the project was. 140 64. In discussing the 2.2 Project, David Boland testified that he was not aware of FEDCON engaging the services of any engineering firm to provide a design for the temporary access road that resulted in the continuous layer of separator geotextile over compacted earth and six inches of compacted aggregate over the geotextile. 141 The construction of the temporary access roads utilizing a layer of geotextile fabric and six inches of rock, as called for in both HDB subcontracts, would have come from FEDCON’s preconstruction department, although he was unsure who developed the specifications. 142 Although Hildebrandt maintained that he would not normally see an engineer determining this scope of work and that HDB’s subcontract was “pretty typical” in his experience, he admitted that he had not seen any engineering work that was performed in connection with the scope of work. 143 ii. Early Communications between GLF and FEDCON Regarding the Access Roads 65. On February 1, 2014, Ken Yerk, an estimator and project manager of GLF, wrote 138 Testimony of Alonzo Harrison, Doc. 238 at 16:1–2, 21:18–20. Id. at 20:9–13. 140 Id. at 25:24–25, 26:1–3. 141 Testimony of David Boland, Doc. 233 at 7:23–25, 8:1–3. 142 Testimony of Craig Hildebrandt, Doc. 234 at 258:4–18. 143 Id. at 258:23–25, 259:1–4. 139 23 Case 8:17-cv-01932-CEH-AAS Document 262 Filed 01/28/21 Page 24 of 192 PageID 44828 to FEDCON regarding “the main travel way to access the test pile area” for the 2.2 Project, which was north of the Chevron plant, explaining that “firm and unyielding access, travel ways and crane pads” were necessary. 144 In a February 12, 2014 e-mail to Whitworth regarding the 2.2 Project, Yerk emphasized that “[a]ccess roads with sufficient width and stability must be installed and maintained” and asserted GLF’s position that “FEDCON/Boland is responsible for providing adequate access to the site.” 145 On August 24, 2014, Yerk emphasized, in the context of the 1.2a Project, FEDCON’s responsibility to provide “safe and fluid access to the project, as GLF would not “sacrifice safety for production.” 146 Yerk testified that GLF’s position insofar as what it needed regarding the access road never changed during his time on the projects. 147 66. Whitworth likewise described the access road on the 2.2 Project as “vital to efficient movement of materials and receiving of deliveries” on February 18, 2014. 148 The access plan provided by FEDCON to GLF for the 2.2 Project did not have any specific information regarding any approval of the design of the access road. 149 67. On May 5, 2014, FEDCON, through Hildebrandt, recognized the importance of the temporary access road on the 2.2 Project as the shared access road for GLF, FEDCON, and for the other subcontractors and deliveries of materials such as pipe piles, sheet piles, concrete and steel rebar that were being furnished. 150 On June 12, 2014, as GLF geared up to start sheet pile driving on the first work front of the 2.2 Project, and prior to walking the cranes, GLF notified FEDCON of deficiencies in the construction of the access road on the 2.2 Project. 151 Ellis testified 144 Docs. 219-741 at 1; Testimony of Ken Yerk, Doc. 237 at 30:24–25 31:1–2, 12–13. Doc. 216-862 at 1. 146 Doc. 216-223 at 1. 147 Testimony of Ken Yerk, Doc. 237 at 33:9–12. 148 Doc. 216-312 at 1. 149 Testimony of Joseph Beaird, Doc. 238 at 183:22–25. 150 See Doc. 219-867 at 1. 151 Doc. 219-870 at 1; Testimony of Lorenzo Ellis, Doc. 240 at 74:18–22. 145 24 Case 8:17-cv-01932-CEH-AAS Document 262 Filed 01/28/21 Page 25 of 192 PageID 44829 that, as of that date, GLF had yet to begin “any real production,” yet the “roads were already rutting.” 152 iii. FEDCON Explores Engineering Solutions 68. In June and July of 2014, FEDCON communicated with George Bloom, P.E., an engineer of Tensar, regarding the access road for the 1.2a Project, which Bloom referred to as the “haul road.” 153 Tensar, a manufacturer of materials used in access roads, manufactures TX160.154 On June 18, 2014, Mr. Bloom issued the following design recommendations to Pearson and Childers for the temporary access road: (1) 8 inches of 610 or 57 limestone; (2) one layer of Tensar TX 160; and (3) existing stabilized subbase; but (4) “[i]f you were to exclude the TX 160, your required fill would be 25 in.” 155 69. On July 14, 2014, Mr. Bloom provided the following additional recommendation for the “north haul road”: (1) 12 inches of Limestone (#610 or 57); (2) one layer of Tensar TX160; (3) one layer of 7 oz NW Geotextile; and (4) prepared subgrade. 156 70. Notwithstanding these recommendations from Mr. Bloom, David Boland was unaware of any changes made to HDB’s subcontract after Pearson and Childers received these recommendations. 157 Similarly, FEDCON never provided HDB with any engineering data or recommendations regarding the construction of the access road on the 2.2 Project. 158 71. On September 26, 2014, Hildebrandt contacted an engineer with Royal Engineering to inquire if the engineer would be able to “provide engineering service to help with” 152 Testimony of Lorenzo Ellis, Doc. 240 at 75:11–13. Docs. 219-894 at 1, 3; 219-896 at 1; Testimony of David Boland, Doc. 233 at 27:4–9. 154 Testimony of David Boland, Doc. 233 at 27:1–3; Doc. 219-894 at 1, 3. 155 Doc. 219-894 at 1. 156 Doc. 219-896 at 1. 157 Testimony of David Boland, Doc. 233 at 30:7–11, 158 Testimony of Alonzo Harrison, Doc. 238 at 25:24–25, 26:1–3. 153 25 Case 8:17-cv-01932-CEH-AAS Document 262 Filed 01/28/21 Page 26 of 192 PageID 44830 the projects. 159 Around this time, GLF commenced the production of driving sheet piling on the 2.2 Project after the delay and removal of the AZ materials. 160 In his communication to Royal Engineering, Hildebrandt described the roads as being constructed with “a geotextile separator fabric and 6” of aggregate as a wearing surface on the existing subgrade” and acknowledged that “[t]his system has held up poorly to the construction traffic to date . . . and we are just beginning the project.” 161 Hildebrandt explained that a large amount of rutting occurred when the subgrade became saturated from either rains or the Mississippi River’s rise and that adding aggregate was only a temporary solution. 162 FEDCON was concerned that costs may become excessive based on the required maintenance that had been performed. 163 As such, FEDCON inquired whether Royal Engineering “could help in designing a modification to our existing roadway that would be economical but would provide a significant reduction in the required maintenance.” 164 72. Hildebrandt testified that, at that time, FEDCON was allowing the access roads to be used during and after rain events, which led to significant “rutting,” which required repairs and maintenance. 165 The purpose of reaching out to the engineering firm was to determine whether there could be an “improvement” or “upgrade” to the access roads such that they would be able to perform better in those events and there would be less of a wait to use the roads. 166 By virtue of two prior projects that David Boland, Inc. had performed in the New Orleans area, David Boland, Inc. was aware of the type of rain events that each of these projects could experience. 167 73. Royal Engineering responded with a lumpsum proposal and a scope of work that 159 Doc. 219-793 at 1; Testimony of Craig Hildebrandt, Doc. 234 at 208:6–8. Testimony of David Boland, Doc. 233 at 31:22–25, 32: 1–3. 161 Doc. 219-793 at 1. 162 Id. 163 Id. 164 Id. 165 Testimony of Craig Hildebrandt, Doc. 234 at 208:18–24. 166 Id. at 208:25, 209:1–5. 167 Testimony of David Boland, Doc. 233 at 32:23–25, 33:1–4. 160 26 Case 8:17-cv-01932-CEH-AAS Document 262 Filed 01/28/21 Page 27 of 192 PageID 44831 included a “greater design effort” than FEDCON’s request. 168 FEDCON asked for a revised proposal, as FEDCON wanted “something more basic with just simple cross-section that [it] could utilize.” 169 FEDCON ultimately did not engage Royal Engineering’s services for upgrading the access roads because Royal Engineering declined. 170 74. Hildebrandt also communicated with a company called Duradek to explore a polymer mat solution in conjunction with the access roads, whereby polymer mats would be connected, but this proposed solution was abandoned as a result of the vehicles traversing the access road having different wheel bases and concerns regarding those vehicles’ ability to stay on a narrow track. 171 75. Joel Boland of David Boland, Inc. also communicated with T. Howard Hornsby, Jr., a materials engineer with Burns Cooley Dennis, Inc. 172 On October 24, 2014, Hornsby advised Joel Boland of certain methods for a stabilized roadbed. 173 Assuming the roadbed could be limetreated, one option was to mix 12 to 18 inches of lime and place a granular surface on top of the lime-treated soils. 174 “Liming” would depend on “how wet/weak the soils” were. 175 Another option was to utilize a combination of geotextile fabric and grid with a granular material. 176 The third option was to use crane mats, but “[b]ased on the length of the job, I would imagine crane mats are out as an option due to constructability and cost. 177 Finally, he advised that “fabric/grid and stone should work no matter the condition.” 178 168 Testimony of Craig Hildebrandt, Doc. 234 at 209:15–21. Id. at 210:1–8. 170 Id. at 210:15–25, 211:1–8. 171 Id. at 211:25, 212:1–22. 172 See Doc. 216-169 at 1. 173 Id. 174 Id. 175 Id. 176 Id. 177 Id. 178 Id. 169 27 Case 8:17-cv-01932-CEH-AAS Document 262 Filed 01/28/21 Page 28 of 192 PageID 44832 76. On November 23, 2014, Hildebrandt also contacted Hornsby regarding an idea he had to enhance the subgrade soil, which involved “mix[ing] in Portland” in small sections, using a loader to scrape up 12 inches, placing Tensar structural geogrid, and then “plac[ing] the 12” back and roll[ing] the entire 18”,” which he estimated could be accomplished over a 6 to 8 hour period of time. 179 77. On December 8, 2014, Hornsby responded with four proposed design and construction options for the temporary access roads: (1) layer of geotextile fabric and 30 inches of crushed stone; (2) Tensar geogrid and geotextile fabric and 18 inches of crushed stone; (3) 12 inches of cement treated subgrade and 16 inches of crushed stone; and (4) geogrid, geotextile, 24 inches of sand, and 6 inches of crushed stone. 180 On the same date, Mr. Hornsby sent Mr. Hildebrandt a memorandum which addressed his recommendations and included the same four options for the design of the temporary access roads for both projects. 181 In his memorandum, Mr. Hornsby stated, “The table below provides our recommended construction roadway aggregate sections (four options) based on the in-situ subgrade strengths and our understanding of the planned daily construction truck traffic.” 182 78. The materials included in Option 1 proposed by Mr. Hornsby included the same materials that were included in the scope of work in the subcontracts between FEDCON and HDB, but the thickness of the crushed stone was five (5) times the thickness included in those subcontracts. 183 79. In October of 2014, Yerk requested updates regarding the status of the access 179 Doc. 219-807 at 1–2. Doc. 219-806 at 1. 181 Doc. 219-807 at 3. 182 Id. at 4. 183 Testimony of David Boland, Doc. 233 at 42:5–15. 180 28 Case 8:17-cv-01932-CEH-AAS Document 262 Filed 01/28/21 Page 29 of 192 PageID 44833 roads for the 1.2a Project and 2.2 Project. 184 Additionally, from November of 2014 through the beginning of January of 2015, GLF reiterated the need for the access roads to be upgraded and maintained. 185 Lorenzo Ellis of GLF testified that, from the onset of the projects, GLF had notified FEDCON that the roads were “woefully inadequate” for the type of work that GLF was doing. 186 80. However, notwithstanding the information that FEDCON had received from Royal Engineering and Burns Cooley Dennis, as well as the previous information from Mr. Bloom of Tensar, regarding design options for the temporary access roads that had “held up poorly to the construction traffic to date,” Jason Whitworth wrote to GLF on December 9, 2014, regarding the 2.2 Project and stated that the temporary access road was “consistent with typical construction of temporary access roads in the area . . . .” 187 Whitworth claimed that the parameters of the temporary access road were defined “by the confines of the project requirements which were discussed during the preconstruction meeting at length” with Jeff Falati, who “approved Fedcon’s Access Plan on 8 April 2014 (revision approved on 20 June 2014).” 188 While claiming that the access road complied with FEDCON’s obligations under the 2.2 Project Subcontract Agreement and was “consistent with typical construction of temporary access roads in the area,” Whitworth nonetheless advised that FEDCON acknowledged that “further enhancements to the temporary access road” would allow GLF to work on days otherwise classified as adverse weather days. 189 As such, FEDCON continued to pursue “alternate engineering solutions to minimize rain impacts” to the road, despite FEDCON’s belief that these enhancements were “over and above” FEDCON’s obligations, and GLF would be provided “an excusable delay for those days it cannot perform 184 Docs. 219-877 at 2; 219-902 at 2. Docs. 219-910 at 1; 219-918 at 1; 219-919 at 1; 217-93 at 1. 186 Testimony of Lorenzo Ellis, Doc. 240 at 77:3–8. 187 Doc. 219-879 at 1. 188 Id. 189 Id. 185 29 Case 8:17-cv-01932-CEH-AAS Document 262 Filed 01/28/21 Page 30 of 192 PageID 44834 critical path activities” as a result of inability to traverse the road. 190 81. Whitworth admitted during trial that his statement that the temporary access road was “typical” of access roads in the area was not based on his personal knowledge, as he did not have any experience in surveying prior projects in southeastern Louisiana, except to the extent that he may have “seen things” regarding “other construction projects” during the course of “four years,” although he never “specifically went out and said, hey, how did they build this?” 191 On the other hand, around this time, representatives of GLF toured other local projects and saw that the roads on other projects were usable during rain events and immediately thereafter. 192 FEDCON did not retain an engineer in January of 2015 or even within the three months after January of 2015, despite its communications with engineers. 193 iv. The Corps’ Response 82. On March 6, 2015, Francesco Senis, GLF’s President and CEO, wrote to Jeff Falati and objected to the temporary facilities for the 2.2 Project, including the quality of the temporary access road. 194 He forwarded previous communications from GLF to FEDCON regarding the 2.2 Project, including: an October 25, 2014 letter from GLF requesting a status update regarding FEDCON’s representation that it had engaged an engineer to design an access road capable of supporting the project traffic; a November 17, 2014 letter requesting that the access roads be upgraded and maintained in accordance with Section 04.B of EM 385-1-1; and a January 19, 2015 letter with accompanying photographs depicting a deteriorating access road. 195 83. David Boland testified, based on his over forty years of experience as a 190 Id. Testimony of Jason Whitworth, Doc. 234 at 195:3–21. 192 Testimony of Ken Yerk, Doc. 237 at 58:7–14, 20–25, 59:1–17. 193 Id. at 59:18–23. 194 See Doc. 219-935 at 2. 195 Id. at 2–12. 191 30 Case 8:17-cv-01932-CEH-AAS Document 262 Filed 01/28/21 Page 31 of 192 PageID 44835 government contractor, that the administrative contracting officer is responsible for enforcing the provisions of EM 385. 196 84. In November of 2015, Joseph Beaird of GLF contacted Jeff Falati regarding the applicability of access/haul road provisions of EM 385-1-1. 197 Mr. Beaird testified that, as an engineer, he was trying to understand why Mr. Falati was not enforcing these specifications. 198 In response, Mr. Falati acknowledged that he had not encountered the haul roads topic in this context before. 199 Mr. Falati acknowledged that both the EM385-1-1 and Section 1100 address haul roads, but he advised that “[n]ormally the prime or sub maintains their roadways as appropriate to facilitate construction.” 200 He also stated that “[d]ifferent contractors install their roads with different materials and maintain them differently. For the most part, the issue is left to the contractor’s discretion.” 201 85. When asked whether a contractor would be required to provide engineering work in accordance with Section 0.4B of EM 385-1-1, assuming that Section 0.4B was applicable, Mr. Falati, who testified by deposition, explained that access plans received by the Corps typically do not “go into detail in design criteria” and do not include engineering design of new roads, but instead consist of a “plan view sheet of the project with some draw in arrows” demonstrating the access. 202 Thus, to the extent that engineering work needed to be done or was done, an access plan submittal typically would not include such engineering work and access plans are often approved without engineering work. 203 As such, the Corps did not require any engineering calculations for 196 Testimony of David Boland, Doc. 232 at 128:18–25, 129:1–2. Doc. 216-262 at 1. 198 Testimony of Joseph Beaird, Doc. 239 at 28:21–25, 29:1–2. 199 Doc. 216-262 at 1. 200 Doc. 216-262 at 1. 201 Id. 202 Testimony of Jeff Falati, Doc. 235 at 203:2–16. 203 Id. at 203:17–25. 197 31 Case 8:17-cv-01932-CEH-AAS Document 262 Filed 01/28/21 Page 32 of 192 PageID 44836 the access plan submittal. 204 Of course, whether the Corps required access plans to be engineered upon submission is an issue distinct from whether the access roads, as constructed, were engineered. David Boland also recognized that the Corps did not design the access roads such that FEDCON had to submit a specific design for approval. 205 86. Mr. Falati also explained that the Corps typically stays out of disputes with subcontractors and prime contractors regarding haul roads, unless there is something “imminently dangerous.” 206 Rather, it is the “responsibility of the prime [contractor] and subcontractor to coordinate amongst themselves.” 207 The Corps did not issue a warning, citation, or complaint about the condition of the access road on either the 2.2 Project or the 1.2a Project; however, as stated, the contractor is ultimately responsible for the safety of personnel on a job site. 208 v. Impact of Conditions of Access Roads 87. There were days when the work could not proceed because of the conditions of the access roads. 209 FEDCON also shut down the access roads when it rained or when the roads were otherwise sufficiently saturated to cause issues for people to drive on them. 210 By way of an example of the impact that rain would have on the access roads, an e-mail from an HDB superintendent to FEDCON personnel, dated April 14, 2015, advised FEDCON to keep traffic off of the “temporary [h]aul roads” for at least two days after the rain stopped as a result of the “severe erosion and soft roadways” that were “tor[n] up” every time a subcontractor operated a piece of equipment or a vehicle. 211 204 Id. at 205:9–19. Testimony of David Boland, Doc. 233 at 23:25, 24:1–3. 206 Id. at 204:6–20. 207 Testimony of Jeff Falati, Doc. 235 at 204:21–23. 208 Id. at 221:4–18. 209 See Testimony of Jason Whitworth, Doc. 234 at 184:23–25, 185:1. 210 Testimony of Rick Batdorf, Doc. 235 at 53:23–25, 54:1–9. 211 Doc. 217-148 at 1. 205 32 Case 8:17-cv-01932-CEH-AAS Document 262 Filed 01/28/21 Page 33 of 192 PageID 44837 88. The manner in which the access roads were designed impacted HDB’s maintenance obligation thereof. 212 Specifically, as a result of the rain and high water events, the subsurface would become saturated and made the roadways soft or boggy. 213 HDB’s maintenance was intended to “put the grader off and scrape off the ruts,” but when HDB did this, it would peel off some of the gravel, ultimately resulting in the road no longer being six inches of rock or gravel, but around five and one-half inches instead. 214 89. David Boland recognized that, if an access road was shut down, such as to avoid maintenance or to allow it to dry out, on a day when the weather was otherwise suitable to perform work such that no materials could be delivered, GLF would be unable to perform such work.215 Likewise, if there were days when an access road was not shut down, but was otherwise unusable to deliver materials to GLF, despite the weather being suitable, those days were days when GLF would have been unable to perform work due to lack of materials. 216 On these days when an access road was unusable for a day or two after a rain event, FEDCON issued GLF a noncompensable time extension, as that is what FEDCON received from the Corps. 217 David Boland attributed such days when GLF could not perform due to the access road—but not due to the actual weather outside—to adverse weather. 218 GLF contended that it incurred idle equipment and manpower costs on days when its personnel should have been able to work, but for the road being impassible and FEDCON not allowing access. 219 90. The non-compensable days of time extension failed to address or compensate 212 Testimony of Alonzo Harrison, Doc. 238 at 29:23–25, 30:1. Id. at 30:2–10. 214 Id. at 30:8–17. 215 Testimony of David Boland, Doc. 232 at 210:25, 211:1–5. 216 Id. at 211:13–18. 217 Testimony of Jason Whitworth, Doc. 234 at 185:13–19; 215:13–19; Testimony of Lorenzo Ellis, Doc. 240 at 73:2– 7. 218 See Testimony of David Boland, Doc. 232 at 216: 1–5. 219 Testimony of Lorenzo Ellis, Doc. 240 at 73:11–25. 213 33 Case 8:17-cv-01932-CEH-AAS Document 262 Filed 01/28/21 Page 34 of 192 PageID 44838 GLF for the additional costs it was incurring for operating costs including the cost of equipment and labor. 220 91. Subsequent to the receipt of the proposed engineering design options for the temporary access roads from Mr. Hornsby and Burns Cooley Dennis, FEDCON determined that performing any of the recommended upgrades to the access roads was cost-prohibitive because, even when accounting for any increase in the number of days that would be realized from such upgrades, there was no guarantee that roads “could be used during all rain events and after rain events.” 221 92. In or about December of 2014, FEDCON attempted to get HDB to perform a portion of the improvements to the access roads without receiving any additional compensation.222 FEDCON wanted HDB to perform essentially five times the original work it had performed by installing 30 inches of aggregate at no additional charge. 223 HDB declined, as it was not in a position to do that work for free. 224 In response to FEDCON’s attempt, HDB also advised FEDCON that the roadways for the projects were not meeting the demands of the actual use.225 Mr. Harrison nonetheless advised that, as the existing design was the design contracted for under the subcontracts between HDB and FEDCON, HDB was prepared to finish performing its contracted work. 226 Harrison also testified that HDB advised FEDCON that the access roads were not suitable for use by cranes, concrete trucks, and other heavy vehicles during construction.227 HDB opined in a letter to FEDCON that FEDCON should retain an engineer to design the access 220 Testimony of Francesco Senis, Doc. 236 at 79:17–25, 80:1–2. Testimony of Craig Hildebrandt, Doc. 234 at 213:12–24. 222 Doc. 219-810 at 1; Testimony of Alonzo Harrison, Doc. 238 at 36:3–13. 223 Doc. 219-810 at 1; Testimony of Alonzo Harrison, Doc. 238 at 36:12–17. 224 Testimony of Alonzo Harrison, Doc. 238 at 37:2–7. 225 Doc. 219-810 at 1. 226 Id. 227 Testimony of Alonzo Harrison, Doc. 238 at 65:14–22. 221 34 Case 8:17-cv-01932-CEH-AAS Document 262 Filed 01/28/21 Page 35 of 192 PageID 44839 roads to ensure that they would be better suited for actual use. 228 93. GLF wrote several letters to FEDCON, in which GLF took the position that the access roads needed to be designed in accordance with Section 4.B of EM 385-1-1. 229 FEDCON took the position that GLF was incorrectly seeking to classify the temporary access roads as haul roads. 230 While GLF argued that the “haul road” provisions of Section 4.B of the EM 385-1-1 were applicable to the temporary access roads, David Boland testified that the provisions of Section 27.F.05 are more applicable to the situation. 231 That section provides: 27.F STRUCTURAL STEEL ASSEMBLY ... 27. F. 05 Site layout. The Controlling contractor shall ensure the following is provided and maintained: a. Adequate access roads into and through the site for the safe delivery and movement of derricks, cranes, trucks, other necessary equipment, and the material to be erected; and means and methods for pedestrian and vehicular control. Exception: This requirement does not apply to roads outside of the construction site. b. A firm, properly graded, drained area readily accessible to the work with adequate space for the safe storage of materials and the safe operation of the erector’s equipment. c. Pre-planning of overhead hoisting operations. All hoisting operations in steel erection shall be pre-planned. 232 94. Mr. Boland opined that “reinforcing steel” constituted “material to be erected” under Section 27.F.05a, defining piling that was being driven into the ground as being “erected.”233 95. However, not once during the course of the work on either project did FEDCON 228 Id. at 65:20–25, 26:1. Testimony of David Boland, Doc. 233 at 25:10–15. 230 Id. at 25:16–24. 231 Id. at 20:19–23. 232 Doc. 216-101 at 24–25. 233 Testimony of David Boland, Doc. 233 at 22:4–17. 229 35 Case 8:17-cv-01932-CEH-AAS Document 262 Filed 01/28/21 Page 36 of 192 PageID 44840 advise GLF that it believed that Section 27.F.05 of EM 385-1-1 was applicable to the access roads, as Mr. Boland maintained at trial. 234 96. GLF provided notice to FEDCON of the continuing impact due to the condition of the access roads during the Fall of 2015. 235 For the 1.2a Project, GLF advised FEDCON that a letter from December of 2014 served as “formal notice, reserving our right to claim for time and/or compensation, in accordance with the subcontract agreement, for delays or disruptions resulting from safety hazards associated with the access haul road.” 236 GLF also provided FEDCON with photographs comparing the access roads on the 2.2 Project and 1.2a Project to another project in the area. 237 97. By letter dated November 3, 2015, GLF informed FEDCON that GLF would be left with no option but to demobilize from the projects until FEDCON “provides the proper access in accordance with the contract” if actions were not taken to “engineer, improve and maintain the roads on both projects which is the responsibility of FEDCON in order for production to continue.” 238 98. On November 13, 2015, after GLF’s notification that it may have to demobilize, FEDCON agreed to issue change orders to HDB for both projects to perform some reconstruction work on the access roads. 239 The scope of work that was included in the change orders issued to HDB by FEDCON was for a layer of geotextile fabric, geogrid material, and nine inches of crushed concrete. 240 This solution was similar to option 2 provided by Mr. Hornsby almost a year earlier, 234 Id. at 25:25, 26:1–4. Testimony of Rick Batdorf, Doc. 235 at 65:7–12; Doc. 219-956 at 1. 236 Doc. 218-30 at 5. 237 See Doc. 219-956 at 3–4. 238 Doc. 216-258 at 2. 239 Testimony of Mark Ferguson, Doc. 234 at 84:22–25; Testimony of Alonzo Harrison, Doc. 238 at 37:18–22; Docs. 219-813 at 1; 219-814 at 1. 240 Docs. 217-173 at 2; 219-813 at 1; 219-814 at 1; Testimony of Mark Ferguson, Doc. 234 at 84:5–25, 85:1–23. 235 36 Case 8:17-cv-01932-CEH-AAS Document 262 Filed 01/28/21 Page 37 of 192 PageID 44841 in December of 2014, except that Mr. Hornsby recommended 18 inches of crushed stone, which was twice as much as what FEDCON provided in the change orders. 241 99. Notwithstanding the efforts by HDB to reconstruct the temporary access roads pursuant to the change orders received from FEDCON, GLF continued to be impacted by the conditions of the temporary access roads on both projects through its termination on the 2.2 Project on May 27, 2016, and through the completion of its work on the 1.2a Project in October 2016. 242 100. After FEDCON’s termination of GLF on the 2.2 Project, FEDCON’s replacement subcontractor, Bo-Mac Contractors, was also impacted by FEDCON’s failure to properly construct and maintain the temporary access road on work front one of the 2.2 Project. 243 Dustin Talley of Bo-Mac described the access road at work front one to FEDCON as “inadequate” and “more of a dirt trail than an access road.” Mr. Talley inquired regarding FEDCON’s plan to improve the road and provide site access to the work front. 244 FEDCON Construction Manager Rick Batdorf acknowledged that the fill material on top of the aggregate at the southern end of the project made it difficult to traverse the access road. 245 While GLF was performing its work, fill material washed down the slope from the work platform to the temporary access road as a result of the lack of a silt fence at the bottom of the slope. 246 Bo-Mac also had problems with access as a result of this condition. 247 FEDCON attempted to address this condition through the change orders issued to HDB in November 2015 by way of the placement of silt fence at the bottom of the slope on the 241 Doc. 219-806 at 1. Testimony of Lorenzo Ellis, Doc. 241 at 62:2–25. 243 Deposition of Dustin Talley, Doc. 148 at 43:3–19, 44:23–25, 45:1–9; Docs. 219-844 at 1; 219-845 at 1. During trial, the parties agreed to submit the deposition of Dustin Talley, complete with designations and counterdesignations, to the Court. Doc. 235 at 291:21–25, 292:1–25, 293:1–10. 244 Doc. 219-844 at 1. 245 Testimony of Rick Batdorf, Doc. 235 at 47:24–25, 48:1–3. 246 Testimony of Alonzo Harrison, Doc. 238 at 33:24–25, 34:1–25, 35:1–8. 247 Testimony of Rick Batdorf, Doc. 235 at 50:19–24. 242 37 Case 8:17-cv-01932-CEH-AAS Document 262 Filed 01/28/21 Page 38 of 192 PageID 44842 work platform edge of the access road. 248 Mr. Talley also testified by deposition that there were issues of trucks getting stuck on, or sliding off, the road at work front two. 249 Unlike the 2.2 Project Subcontract Agreement, the subcontract agreement between Bo-Mac and FEDCON called for the provision of the temporary access road to be provided by others in the following manner: “Construction of a temporary access road and work area from which to drive pile, including maintenance of the temporary access road to ensure utilization of the temporary access road within a reasonable time after a rain event.” 250 vi. Testimony of Lourie and Hull 101. During trial, GLF offered the testimony of David Lourie, P.E., a geotechnical engineer, whom GLF tendered as an expert witness regarding geotechnical engineering, including design for unpaved aggregate access roads and temporary facilities. 251 Based on his personal observations of roadway sections and review of project documents, including correspondence and photographs, he opined that the access roads were inadequately designed for their intended use.252 He testified that he gained an understanding of the intended usage of the access roads from reviewing the subcontracts between GLF and FEDCON and the subcontracts between FEDCON and HDB. 253 102. Mr. Lourie opined that FEDCON did not comply with the requirements for haul roads under EM 385-1-1, as FEDCON failed to design the haul roads in accordance with engineering criteria. 254 Mr. Lourie saw no evidence that FEDCON had completed any engineering 248 Id. at 48:22–25, 49:1–9, 51:9–14. Deposition of Dustin Talley, Doc. 149 at 25:15–20. 250 Doc. 219-787 at 14. 251 Testimony of David Lourie, Doc. 238 at 86:1–8, 92:6–16. 252 Id. at 95:5–21. 253 Id. at 103:23–25, 104:1–7. 254 Id. at 122:1–12. 249 38 Case 8:17-cv-01932-CEH-AAS Document 262 Filed 01/28/21 Page 39 of 192 PageID 44843 design. 255 He opined that, in developing or designing a roadway section to serve its intended purpose, FEDCON had failed to properly consider the soil conditions and likely weather conditions in southern Louisiana, along with the types of traffic that would traverse the road for various construction activities. 256 103. Mr. Lourie admitted that he is neither a safety expert nor an expert on EM 385.257 He also admitted that he was not familiar with EM 385 prior to being engaged as an expert in this case. 258 Lourie visited the projects on only one occasion in December of 2015, for an amount of time that he could not recall, and could not remember whether he visited the 1.2a Project or the 2.2 Project. 259 He was not aware of EM 385 when he conducted the site visit. 260 Because there were portions of the road that were impassible during his site visit, thereby preventing him from seeing the entirety of the subject access road, he acknowledged the possibility that some areas of the road could have been in better condition than the areas he observed. 261 104. GLF also offered the testimony of Donald Hull, who worked as a project manager and then as a regional manner for the Conti Group, which was involved on the WBV 4.2 Project, adjacent to the 1.2a Project and the 2.2 Project. 262 Like the 1.2a Project and the 2.2 Project, the 4.2 Project also involved temporary facilities, such as access roads and work platforms. 263 He testified that he has worked on approximately 75 projects that involved some type of temporary facilities or work platforms to execute the work. 264 GLF tendered Mr. Hull as an expert in planning and 255 Id. Id. 257 Id. at 137:13–16. 258 Id. at 137:17–19. 259 Id. at 130:16–20, 131:21–25, 132:1–16. 260 Id. at 137:25, 138:1–5. 261 Id. at 262 Testimony of Donald Hull, Doc. 239 at 72:22–24, 73:1–7. 263 Id. at 73:8–13 264 Id. at 70:21–25. 256 39 Case 8:17-cv-01932-CEH-AAS Document 262 Filed 01/28/21 Page 40 of 192 PageID 44844 implementation of temporary facilities on heavy civil construction projects. 265 105. Mr. Hull opined that the temporary access roads were “completely insufficient for supporting pipe and sheet pile installation.” 266 The access roads were insufficient to support the vehicles and intended equipment. 267 Based on his review, Mr. Hull explained that FEDCON ignored the requirements to support a pile-driving operation and the support required for this type of operation. 268 He opined that, because FEDCON was not self-performing this work and, therefore, not incurring daily costs, it lacked the same incentive to invest resources to plan and implement temporary facilities, such as access roads, as a contractor who is performing the work. 269 106. Mr. Hull further explained that, on projects with which he has familiarity, it is desirable for the work platform and the access road to be designed such that the platform flows towards the road and the road flows off to the side of the temporary well. 270 Based on his review of the project documentation, Mr. Hull opined that, with respect to the drainage and silt protection of the access roads of the 1.2a Project and 2.2 Project, there did not appear to be any drainage concept, thereby resulting in the temporary facilities falling apart during the course of project construction. 271 He testified that maintenance of the temporary access roads appeared to be nonexistent. 272 107. Mr. Hull also testified that, in conducting his review of the access roads, he referred to Section 4 of EM 385-1-1, which addresses temporary structures. 273 Section 04.B is 265 Id. at 78:8–11, 79:1–24. Id. at 108:18–24. 267 Id. at 98:24–25, 99:1–10. 268 Id. at 108:25, 109:1–5. 269 Id. at 109:21–25, 110:1–13, 20–25, 111:1. 270 Id. at 98:3–15. 271 Id. at 16–23. 272 Id. at 109:11–13. 273 Id. at 87:22–25, 88:1–7. 266 40 Case 8:17-cv-01932-CEH-AAS Document 262 Filed 01/28/21 Page 41 of 192 PageID 44845 within Section 04.274 In his review, Mr. Hull considered Section 04.B because it provides guidance on the design of haul roads and the types of items that a contractor needs to take into account in the development of temporary facilities. 275 He further testified that EM 385-1-1 has been associated with every Corps project that he has worked on, including the project WBV 4.2 Project. 276 108. Significantly, he opined that some type of engineering design or concept needed to be performed for the access roads, yet his review of project documentation did not indicate any analysis performed by a qualified engineer. 277 vii. GLF’s Claims for the Access Roads 109. GLF submitted damage claims regarding the access roads for the 2.2 Project and the 1.2a Project. 278 As discussed herein, GLF contends that it submitted these claims in accordance with Paragraph 13.B of the subcontract agreements. 110. In support of its damage claims for breach of the subcontract agreements for each project due to FEDCON’s failure to furnish it with a temporary access road in accordance with the subcontract requirements, GLF introduced evidence in the form of summaries of its daily reports for days when it could not perform work due to the condition of the temporary access roads, its time sheets for each such day which include the labor, including supervision, and equipment for which GLF incurred cost on each such day which cost was not offset by revenue due to the condition of the access road, its payroll records for the labor cost, and equipment records reflecting the type of equipment that was to be used and Blue Book information for the daily cost of the 274 (Doc. 219-815 at 3, 6). Testimony of Donald Hull, Doc. 239 at 88:9–25, 89:1–8. 276 Id. at 89:9–18. 277 Id. at 99:11–22. 278 Docs. 219-1087 at 1; 219-1091 at 1. 275 41 Case 8:17-cv-01932-CEH-AAS Document 262 Filed 01/28/21 Page 42 of 192 PageID 44846 equipment. GLF also introduced evidence of the equipment costs utilizing the EP 1110 equipment rates. 279 GLF also introduced into evidence a summary of the costs for each time period. 280 As addressed herein, Lorenzo Ellis testified as to the methodology that he utilized to determine the amount of the claims, including adjustments, and Patrick Brannon testified as the appropriateness of the methodology and reasonableness of the costs. 111. The additional costs incurred by GLF due to the condition of the access roads on the 2.2 project using the EP-1110 Equipment Rates is $768,591.49. 281 The additional costs incurred by GLF due to the condition of the access roads on the 1.2a project using the EP-1110 Equipment Rates is $614,487.74. 282 112. For the 2.2 Project, GLF claims to have lost 43 work days due to the inability to use the temporary access road. 283 For the 1.2a Project, GLF claims to have lost 49 work days due to the temporary access road. 284 113. In compiling the claims for the access roads, Lorenzo Ellis of GLF relied upon daily time sheets of GLF foremen. 285 Mr. Ellis acknowledged that some of the daily reports for the projects indicated that GLF personnel did not perform work on a particular day as a result of a “rain out.” 286 Mr. Ellis testified that, in preparing the claims, he looked more at the project documentation than the daily reports. 287 Even so, according to Mr. Ellis, GLF workers commonly used “rain out” to account for a situation where it had rained the day before and FEDCON had 279 See Docs. 219-1087; 219-1091. Id. 281 Doc. 219-1087 at 1. 282 Doc. 219-1091 at 1. 283 Doc. 219-1087 at 1. 284 Doc. 219-1091 at 1. 285 E.g., Doc. 218-757 at 1–3. 286 Testimony of Lorenzo Ellis, Doc. 242 at 64:8–14; Testimony of Lorenzo Ellis, Doc. 241 135:22–25, 136:1–8. 287 Testimony of Lorenzo Ellis, Doc. 241 at 135:24–25, 136:1–8. 280 42 Case 8:17-cv-01932-CEH-AAS Document 262 Filed 01/28/21 Page 43 of 192 PageID 44847 blocked off the roads. 288 Indeed, “rain out” references days when GLF personnel did not perform work as a condition of the access roads, either because the roads were impassible or shut down.289 114. Mr. Ellis conceded during trial that March 12, 2015, April 28, 2015, and June 29, 2015 were rain days that should not have been included within GLF’s access road claim for the 2.2 Project. 290 He also conceded that January 15, 2015 was a rain day that should not have been included in the access road claim for the 1.2a Project. 291 As such, GLF made a reduction in the amount of $67,881.17, utilizing EP 1110 rates, to account for these four days. 292 115. As discussed below, GLF advised FEDCON on August 7, 2015, that GLF would begin removing “all resources” from work front two on the 2.2 Project beginning on Monday, August 10, 2015, “until such time as Fedcon has a fully accepted access plan approved by the [Corps] and concurrence from GLF that it meets the intent of our subcontract agreement.” 293 A November 21, 2015 e-mail from Lorenzo Ellis to Francesco Senis advised that there was not currently “any equipment sitting idle for the Chevron work,” as GLF had “transferred the hammer, leads and vibro to other projects . . . .” 294 F. Work Platforms i. Subcontract Language and Platforms Generally 116. The 2.2 Project Subcontract Agreement provided that “others” would construct and maintain two temporary work platforms “on the protected side of the levee,” which were required to be “approximately 30’ wide x 600’ long, located 10’ from the centerline of the steel sheet pile, and [to] be removed and extended in segments for the entire length of the levee as the 288 Id. at 136:1–8. Testimony of Lorenzo Ellis, Doc. 242 at 64:8–14. 290 Testimony of Lorenzo Ellis, Doc. 241 at 9:20–25, 10:1–25, 11:1-6. 291 Id. 292 Id. 293 Doc. 217-116 at 1. 294 Doc. 221-205. 289 43 Case 8:17-cv-01932-CEH-AAS Document 262 Filed 01/28/21 Page 44 of 192 PageID 44848 Work progresses.” 295 Similarly, the 1.2a Project Subcontract Agreement provided that “others” would construct and maintain two (2) temporary work platforms, including initial entry and final exit ramps, on the protected side of the levee as described below. The temporary work platforms will be approximately 30’ wide x 600’ long, located 10’ from the centerline of the steel sheet pile, and will be removed and extended in segments for the entire length of the levee as the Work progresses. A 25’ wide earthen ramp will be provided at each of the two work platforms within the work limits to enable the Subcontractor to walk its cranes from the temporary road or entrance to the work platforms prior to commencing piling work. A similar ramp will be provided upon completion of all piling operations to enable subcontractor to demobilize its crane. 296 117. The subcontract between FEDCON and HDB for the 2.2 Project required HDB to furnish all labor, materials, and equipment necessary to provide all required “[c]onstruction, maintenance, and removal of two (2) temporary work platforms on the protected side of the levee” as directed by FEDCON, which included the following: 1. A compacted, level earth surface for use by cranes and other heavy vehicles during construction. 2. Dimensions of approximately 30’ wide x 600’ long, located 10’ from the centerline of the steel sheet pile, 3. Removing and extending work platform in segments for the entire length of the levee as the Work progresses. 297 118. Similarly, the subcontract between FEDCON and HDB for the 1.2a Project required HDB to furnish all labor, materials, and equipment necessary to provide all required “[c]onstruction, maintenance, and removal of two (2) temporary work platforms located on the protected side of the levee” as directed by FEDCON, which included the following: 1. A stabilized, compacted, and level earth surface for use by cranes and other heavy vehicles during construction. 295 Doc. 216-117 at 2. Doc. 216-132 at 17. 297 Docs. 216-114 at 14; 216-115 at 1. 296 44 Case 8:17-cv-01932-CEH-AAS Document 262 Filed 01/28/21 Page 45 of 192 PageID 44849 2. Dimensions of approximately 30’ wide x 600’ long, located 10’ from the centerline of the steel sheet pile. 3. Removing and extending the work platforms in segments for the entire length of the levee as the Work progresses. 298 119. Thus, the subcontracts with HDB for the projects required HDB to provide a compacted level earth surface, but there was no requirement included in the subcontracts to compact the surface of the work platform to any specific density. 299 120. The purpose of the work platforms on each project was to provide a platform to enable GLF to perform its scope of work, which included driving sheet piling materials, driving pipe piling materials, and forming and pouring concrete T-walls. The work platforms on the projects were constructed by degrading the existing levee from elevation 22 to approximately elevation 11 and extending the footprint of the levee at elevation 11 through the installation of sloped embankment material to create a compacted level earth surface. 300 The TFP was separate but adjacent to the work platform, on the flood side. 301 The work platforms were not part of the projects included in the plans issued by the Corps. 302 The access road, which was adjacent to the levee, was typically at different elevation than elevation 11—usually elevation 6 or elevation 7.303 ii. Crane Mats and Impacts 121. Alonzo Harrison of HDB confirmed that there was not a specific requirement for density tests of the surface of the work to be taken. 304 The work platforms that had not been compacted yielded to the weight of the cranes, causing the cranes to list and shut off. 305HDB did 298 Doc. 219-881 at 14–15. Testimony of David Boland, Doc. 233 at 54:22–25. 300 Testimony of Lorenzo Ellis, Doc. 240 at 111:2–25, 112:1–25, 113:1–4. 301 Testimony of David Boland, Doc. 233 at 52:17–22. 302 Id. at 52:1–4. 303 Testimony of Lorenzo Ellis, Doc. 240 at 114:4–11. 304 Testimony of Alonzo Harrison, Doc. 238 at 44:17–22. 305 Doc. 220-280 at 1; Testimony of Jason Whitworth, Doc. 234 at 159:5–11. 299 45 Case 8:17-cv-01932-CEH-AAS Document 262 Filed 01/28/21 Page 46 of 192 PageID 44850 not have any input into the manner in which the work platforms were constructed to determine if they would be suitable for the use of cranes and other heavy vehicles during construction. 306 122. FEDCON’s failure to provide a compacted work platform to GLF in accordance with the requirements of the subcontracts for both projects impacted GLF’s performance of its work throughout the duration of the projects, with such impacts including: (1) costs for the purchase of crane mat materials that GLF was required to use throughout the course of the projects in order to try to provide a stable surface from which to operate its cranes to drive sheet piles, pipe pile and pour concrete; and (2) additional labor time required to remove crane mats from the muddy surface of the work platform (a crane was usually needed to pry the crane mats from the mud as opposed to using a forklift, which is typically used to move crane mats) and move them ahead of the crane to allow for continued operations. 307 123. Crane mats are large pieces of timber used to distribute the load of a crane over the platform. 308 124. Jason Whitworth testified that, in his experience, the crane mats are supplied by the contractor who supplies the cranes for the project and determines whether to use crane mats. 309 Whitworth acknowledged the presence of standing water on the work platform in pictures he reviewed during his testimony. 310 Ellis explained that there was no drainage provision and, consequently, the platforms held water. 311 125. On February 18, 2014, following the execution of the 2.2 Project Subcontract Agreement, but before the execution of the 1.2a Project Subcontract Agreement, Whitworth of 306 Testimony of Alonzo Harrison, Doc. 238 at 67:2–7. Testimony of Lorenzo Ellis, Doc. 240 at 121:1–25, 122:1–25, 123:1–25, 124:1–25, 125:1–25, 126:1–3. 308 Testimony of Jason Whitworth, Doc. 234 at 138:13–17. 309 Id. at 150:9–25, 151:1–14. 310 Id. at 154:9–13. 311 Testimony of Lorenzo Ellis, Doc. 240 at 122:1–2. 307 46 Case 8:17-cv-01932-CEH-AAS Document 262 Filed 01/28/21 Page 47 of 192 PageID 44851 FEDCON confirmed his understanding to Ken Yerk that FEDCON “will be furnishing temporary work platforms per the subcontract, which will be compacted soil” and that “GLF will be utilizing timber crane mats.” 312 Mr. Whitworth was never advised by GLF that his understanding was incorrect. 313 126. On March 21, 2014, Ken Yerk sent a photograph to Jason Whitworth, which he claimed depicted an unlevel crane, with the crane mats sinking into the mud. 314 Mr. Yerk explained that situation “not only causes an unsafe condition, but causes the operator to overcompensate the swing and causes the ground crew to force and manhandle the leads into correct alignment.” 315 127. On August 26, 2014, Ken Yerk wrote to FEDCON expressing concern about recent discussions to shorten the work platform on the 1.2a Project. 316 Mr. Yerk included a sketch that depicted the work platform and the crane sitting on a 26-foot crane mat. 317 Mr. Yerk’s sketch depicted the crane mat because “all of [his] drawings included it, so [he] just kept it in there.”318 Kurt Snodgrass, General Superintendent of GLF, had also sent a sketch depicting a crane on top of a crane mat to FEDCON in February of 2014. 319 128. Yerk sent other sketches depicting crane mats, which pertained to the 2.2 Project, to FEDCON in March and May of 2014. 320 Indeed, Mr. Yerk provided several sketches to FEDCON in regard to the crane configuration on the work platform and in those sketches the cranes were depicted sitting on crane mats, which Mr. Yerk showed to communicate GLF’s 312 Doc. 220-112 at 1. Testimony of Jason Whitworth, Doc. 234 at 141:10–16. 314 Doc. 219-865 at 1. 315 Id. 316 Doc. 216-144 at 1. 317 Testimony of Ken Yerk, Doc. 237 at 41:25, 42:1–14. 318 Id. at 42:15–17. 319 Doc. 220-110 at 1–2; Testimony of Jason Whitworth, Doc. 234 at 141:23–25, 142:22–25. 320 Docs. 220-133 at 1–2; 220-155 at 1–2. 313 47 Case 8:17-cv-01932-CEH-AAS Document 262 Filed 01/28/21 Page 48 of 192 PageID 44852 expectations for what the crane pad—another term for the work platform 321—would consist of.322 Depicting a crane sitting on a crane mat demonstrated or communicated GLF’s expectations for the work platform by showing that the platform needed to be stable, firm, and unyielding.323 Regardless of whether crane mats, crushed rock, or existing earth would be utilized, the work platform needed to withstand the weather. 324 When Yerk prepared these sketches which depicted the cranes sitting on crane mats, he did not intend to communicate to FEDCON that GLF intended to provide crane mats. 325 129. FEDCON utilized Jersey barriers at the edge of the slope to provide support at one point. 326 GLF raised concerns regarding this use of Jersey barriers. 327 GLF retained the services of an independent engineer to perform engineering calculations regarding FEDCON’s use of the Jersey barriers to support the slope down from the work platform. 328 The engineer, David O’Reilly, “examined the proposed crane access path adjacent to [Projects] 1.2a and 2.2” and concluded that a system other than the use of Jersey barriers should be utilized by FEDCON to restrain the work platform “to provide a safe working condition,” which Yerk communicated to FEDCON. 329 130. Jeff Mairs, who served as GLF’s chief estimator of GLF’s roadway division at the time he left his employment at GLF, testified by deposition. 330 He explained that, in his experience, crane mats are supplied by the pile-driving contractor. 331 While Mr. Yerk, as GLF’s lead estimator 321 Testimony of Ken Yerk, Doc. 237 at 11:10–12, 34:21–24. Id. at 34:15–25, 35:23–25, 36:11–14. 323 Id. at 36:11–24. 324 Id. at 36:20–25, 37:1. 325 Id. at 37:2–6. 326 Id. at 43:9–14. 327 Id. at 43:21–24. 328 Id. at 43:25, 44:1–3. 329 Doc. 219-908 at 2; Testimony of Ken Yerk, Doc. 237 at 51:3–25, 52:1–6; Doc. 219-908 at 1. 330 Deposition of Jeff Mairs, Doc. 243 at 160:3–25. 331 Id. at 173:18–25, 174:1–11. 322 48 Case 8:17-cv-01932-CEH-AAS Document 262 Filed 01/28/21 Page 49 of 192 PageID 44853 on the projects, prepared the bids, Mr. Mairs reviewed them and presented them to management.332 Mr. Mairs did not recall discussing the need to include crane mats in the bid estimate with Yerk, but knew that GLF had included crane mats. 333 131. GLF’s estimate for the 2.2 Project included 50 crane mats and its estimate for the 1.2a Project included 25 crane mats. 334 These quantities of crane mats included in the initial estimate and budget for each project represented the minimal amount for crane mats that GLF typically brought onto a job to assemble the cranes and move them into place. 335 The quantities and dollar amounts for crane mats included in the initial estimates was not intended to include the quantity or cost of crane mats to use with the operation of the cranes throughout the course of the work, nor was it sufficient to cover the cost of crane mats that would be needed during the entire course of the projects. 336 132. During the course of performing its scope of work under the subcontracts, due to the condition of the work platforms and FEDCON’s failure to provide GLF with compacted and stabilized work platforms, GLF was required to utilize crane mats for all crane operations related to sheet and pipe pile driving and concrete pouring throughout the course of the work on both projects, and it necessitated the purchase of additional crane mats beyond the limited quantities included in the original estimates and budgets. 337 Mr. Ellis testified that GLF purchased approximately 90 additional crane mats for each job. 338 133. During trial, Mr. Ellis detailed the operation of moving crane mats. Each time 332 Id. at 164:17–25, 165:1–6, 167:11–24. Id. at 173:12–17, 174:1–5. 334 Testimony of Lorenzo Ellis, Doc. 240 at 119:23–25, 120:1–7. See also Docs. 219-973; 219-974. 335 Testimony of Lorenzo Ellis, Doc. 240 at 119:25, 120:1–4. 336 Testimony of Ken Yerk, Doc. 237 at 37:2–6; Testimony of Lorenzo Ellis, Doc. 240 at 120:13–21. 337 Testimony of Ken Yerk, Doc. 237 at 179:11–25, 180:1; Testimony of Lorenzo Ellis, Doc. 240 at 120:22–25, 121:1– 24. 338 Testimony of Lorenzo Ellis, Doc. 240 at 121:16–17. 333 49 Case 8:17-cv-01932-CEH-AAS Document 262 Filed 01/28/21 Page 50 of 192 PageID 44854 when GLF was ready to proceed down one of the projects, the cranes, which were sitting on a set of ten or fifteen crane mats, would need to back up, grab the mats one at a time, and swing them around to a position in front of the crane, thereby allowing the cranes to proceed to the next monolith.339 GLF’s crane operators had to exercise caution in lifting the crane mats, which were often sunken into mud, so that metal rods did not break. 340 Mr. Ellis testified that the process of moving the crane mats so that the crane could move into the next position typically took as many as three or three and one-half hours. 341 When a crane was moving crane mats, the crane was actively engaged in something other than its intended purpose—driving pile and pouring concrete. 342 134. On the other hand, Dustin Talley of Bo-Mac Contractors, LTD., one of the replacement subcontractors on the 2.2 Project, testified that the work platforms did not present any safety concerns, there was not a need to engineer the platforms, and the “compaction was fine.”343 Mr. Talley also testified that Bo-Mac used crane mats on the project because the ground conditions in Louisiana require the use of crane mats and its estimate included the cost of providing and moving the crane mats on a regular basis. 344 iii. Testimony of Lourie and Hull 135. GLF offered the testimony of David Lourie, P.E., and Donald Hull regarding the work platforms. Mr. Lourie’s observation of the work platforms, inclusive of his site visit and review of various photographs, led him to conclude, based on an absence of information, that “there wasn’t necessarily a design effort put into the platforms.” 345 He explained that his 339 Id. at 124:1–15. Id. at 125:15–19. 341 Id. at 125:20–25, 126:1. 342 Id. at 126:7–12. 343 Deposition of Dustin Talley, Doc. 148 at 12:4–7, 12:19–25, 13:1–5. 344 Id. at 13:9–20. 345 Testimony of David Lourie, Doc. 238 at 121:16–25. 340 50 Case 8:17-cv-01932-CEH-AAS Document 262 Filed 01/28/21 Page 51 of 192 PageID 44855 observation of photographs demonstrated some indicators of failures near the edge of the slope of a work platform, which would indicate that a “problem” existed. 346 While conceding that he focused more on the access roads than the work platforms, Mr. Lourie also opined that, from a design perspective, issues that were present in the roadways also persisted in the work platforms and that some of the same design considerations used for access roads would be directly transferable to the work platforms. 347 136. Mr. Hull testified that the work platforms were insufficient to support the cranes for installation of the pipe piles and sheet piles. 348 He explained that workers would not have secure footing where they were stuck in the mud above their mid-shins and were prone to slips, trips, and falls. 349 Additionally, these conditions could lead to certain equipment titling or falling. 350 He also opined that crews standing in mud up to their mid-shins each day, who would therefore be unhappy with the work platform, would be less productive, whereas a well-designed platform will greatly increase a crew’s productivity. 351 According to Mr. Hull, a work platform that is falling apart would result in equipment getting bogged down or otherwise prevent equipment from coming in, which would also impact productivity, as time would be spent removing the equipment from the mud, which contractors do not plan for during the estimate process. 352 137. As previously mentioned, Mr. Hull also considered EM 385-1-1 to be applicable. In discussing the basis for his opinion that the work platforms were insufficient to provide stable platforms to support a pile driving operation, Mr. Hull explained that, in some of the photographs that he reviewed, cranes were sitting in mud and water and that contractors with cranes must follow 346 Id. Id. at 95:22–25,96:1–6. 348 Testimony of Donald Hull, Doc. 239 at 87:13–16, 102:5–11. 349 Id. at 100:2–13. 350 Id. 351 Id. at 100:20–25, 101:1–15. 352 Id. at 101:16–22. 347 51 Case 8:17-cv-01932-CEH-AAS Document 262 Filed 01/28/21 Page 52 of 192 PageID 44856 the “1% Rule.” 353 This “1% Rule” is referenced within Section 16.T of EM 385-1-1, entitled “Crane-Supported Personnel (Work) Platforms,” within a subsection labeled “Operational Criteria,” which provides, in part, that “[t]he crane shall be uniformly level within 1% of level grade and located on firm footing. Cranes equipped with outriggers shall have them all fully developed to load chart criteria following manufacturer’s specifications, as applicable, when hoisting personnel.” 354 Mr. Hull explained that ensuring that cranes are within 1% on all corners going up through the boom is imperative because otherwise the crane is subject to “side load,” which can result in the crane tilting, the boom having a failure in the supports, or the load shifting on the rigging. 355 138. Mr. Hull acknowledged that crane mats were used on the 4.2 Project. 356 Although the work platform on the 4.2 Project was constructed with soil subbase and rock covering, Mr. Hull explained that Conti utilized crane mats because he always uses crane mats in southern Louisiana. 357 He acknowledged that part of his reason for utilizing crane mats is because cranes will tear up a dirt surface or a rock surface. 358 Mr. Hull subsequently clarified that, based on some of the photographs that he reviewed, GLF had no choice but to use crane mats as a result of the temporary facilities not being properly implemented. 359 One of the problems that occurred as a result of improper implementation of the work platform was the sinking of crane mats into the mud. 360 iv. GLF’s Claims for the Work Platforms 353 Id. at 102:16–25, 103:1. Doc. 216-93 at 17, 21. 355 Testimony of Donald Hull, Doc. 239 at 103:22–25, 104:1. 356 Id. at 115:3–5. 357 Id. at 115:6–25, 116:1–3. 358 Id. at 116:4–7. 359 Id. at 143:4–12. 360 Id. at 144:1–4. 354 52 Case 8:17-cv-01932-CEH-AAS Document 262 Filed 01/28/21 Page 53 of 192 PageID 44857 139. GLF submitted damage claims for the work platforms on the 1.2a Project and the 2.2 Project to FEDCON on April 29, 2016. 361 140. The need for crane mats throughout the course of the work on both projects was not anticipated by GLF at the time it prepared its estimates and budgets for the projects, and became necessary due to the condition of the work platforms as constructed by FEDCON. 362 141. GLF seeks $772,365.22 for the 1.2a Project, which accounts for direct labor, project management and supervision, equipment, material, allowable markup, bond costs, and other costs from October 12, 2014, to September 24, 2016. 363 GLF calculated this sum using the EP-1110 Equipment Rates. 364 This sum includes $135,000 for crane mats, 365 which Lorenzo Ellis testified was for approximately 90 additional crane mats. 366 Mr. Ellis testified that the remaining amount is to account for “[c]rews moving mats when they should be doing something different.” 367 142. As discussed above, Mr. Ellis testified that the process of moving crane mats forward so that GLF’s cranes could progress down each project typically took as many as three or three and one-half hours. In calculating these two damage claims, Mr. Ellis conservatively calculated the amount of time as two hours. 368 143. During trial, Mr. Ellis explained his calculations for the different components of the work platform claim for the 1.2a Project. 369 For example, he discussed his calculations for direct labor, including GLF’s crane operators and carpenter crews. 370 For the equipment charges, 361 Docs. 218-18 at 2; Doc. 218-740 at 2. Testimony of Ken Yerk, Doc. 237 at 179:11–25, 180:1; Testimony of Lorenzo Ellis, Doc. 240 at 120:22–25, 121:1– 24, 122:1–23. 363 Doc. 219-1092 at 1. 364 Id. 365 Id. 366 Testimony of Lorenzo Ellis, Doc. 240 at 127:9–24. 367 Id. at 127:25, 128:1–3. 368 Id. at 125:20–25, 126:1–8. 369 E.g., id. at 128:4–25, 129:1–25, 130:1–25. 370 Id. at 129:2–25, 130:1–5. 362 53 Case 8:17-cv-01932-CEH-AAS Document 262 Filed 01/28/21 Page 54 of 192 PageID 44858 Mr. Ellis explained that the amounts accounted for equipment that was idle as a result of GLF personnel moving crane mats. 371 Where the cranes were active, they were moving crane mats, thereby resulting in other equipment being idle. 372 144. For the 2.2 Project, GLF seeks $783,313.97, which accounts for direct labor, project management and supervision, equipment, material, allowable markup, bond costs, and other costs from October 1, 2014, to May 28, 2016. 373 The work platform claim for the 2.2 Project was prepared in the same manner as the work platform claim for the 1.2a Project. 374 This sum also includes $135,000 for crane mats. 375 GLF calculated this sum using EP-1110 Equipment Rates.376 G. Availability of Two Work Fronts at All Times to GLF i. Introduction 145. Each subcontract agreement required GLF to “furnish all labor, materials, and equipment necessary to provide all required . . . [m]anpower, materials, and equipment necessary to work two independent work fronts simultaneously.” 377 David Boland confirmed that FEDCON accordingly requested that GLF provide manpower and equipment for work to be performed on two work fronts simultaneously on both projects. 378 146. The basis for these damage claims is that “FEDCON had predecessor work to do” and, for GLF to perform its work, FEDCON was required to “build TFP and degrade the levee to allow [GLF] to access [its] work.” 379 Lorenzo Ellis also described these damage claims as claims “for idle manpower and equipment” because “there were several months” during the projects 371 Id. at 132:19–23. See id at 132:24–25, 133:1–10. 373 Doc. 219-1088. 374 Testimony of Lorenzo Ellis, Doc. 240 at 137:7–11. 375 Doc. 219-1088. 376 Id. 377 Docs. 216-117 at 1; 216-132 at 15. 378 Testimony of David Boland, Doc. 233 at 55:18–22. 379 Testimony of Lorenzo Ellis, Doc. 240 at 138:2–15. 372 54 Case 8:17-cv-01932-CEH-AAS Document 262 Filed 01/28/21 Page 55 of 192 PageID 44859 where one or both work fronts were unavailable to GLF, and so GLF had “this equipment sitting out there and the manpower out [t]here at $40,000 a day just waiting.” 380 147. During trial, David Boland agreed with the premise that FEDCON had to complete the predecessor work activities for the two work fronts on each project in order for GLF to perform its work. 381 He confirmed that FEDCON had to provide two work fronts to GLF on each project, which doubled the responsibility of FEDCON and HDB, as FEDCON’s subcontractor, as well as FEDCON’s material suppliers, for the predecessor work. 382 148. After HDB constructed the temporary access roads, it was necessary for FEDCON to perform the following predecessor work activities: (1) construct the TFP; (2) degrade the levee to elevation 8; and (3) construct the temporary work platform to provide access to GLF and the platform from which it was agreed GLF would perform its work. 383 However, Lorenzo Ellis and Patrick Brannon testified that, for various periods on each project, FEDCON failed to provide GLF with the completed predecessor activities such that work could be performed at two work fronts simultaneously. 384 149. GLF brings two damage claims for FEDCON’s failure to make two work fronts available: a claim for the failure to make two work fronts available on the 2.2 Project and a claim for the failure to make two work fronts available on the 1.2a Project. ii. 2.2 Project 150. On the 2.2 Project, GLF claims that FEDCON’s failure to perform predecessor work impacted GLF’s performance of the work under the 2.2 Project Subcontract Agreement 380 Id. at 138:16–22. Testimony of David Boland, Doc. 233 at 56:2–9. 382 Id. at 56:10–15. 383 See Doc. 134 ¶19; Testimony of Lorenzo Ellis, Doc. 240 at 111:2–12. 384 Testimony of Lorenzo Ellis, Doc. 240 at 138:2–22, 158:14–23; Testimony of Patrick Brannon, Doc. 243 at 23:11– 12, 25, 24:1–9. See generally Docs. 219-1089; 219-1093. 381 55 Case 8:17-cv-01932-CEH-AAS Document 262 Filed 01/28/21 Page 56 of 192 PageID 44860 during two periods of time: (1) from May 17, 2015, to July 11, 2015; and (2) from September 20, 2015, to May 28, 2016. 385 GLF claims that this failure impacted 147 days, all of which occurred during the second period of time and after the high river receded towards the end of September of 2015. 386 Mr. Ellis testified that the work was shut down between these two periods, from July 11, 2015 to September 20, 2015. 387 In this claim, GLF seeks $475,618.21, which utilizes EP 1110 rates. 388 151. The 2.2 Project Prime Contract provided that, “[a]t such time that the Mississippi River is at or above elevation +11.0 feet, NAVD 88 (2004.65) at the Carrolton gage (New Orleans District), all construction work shall cease until such time as the elevation subsides below +11.0 feet.” 389 FEDCON Senior Project Manager Mark Ferguson testified that a high-river event occurred in mid-March of 2015. 390 On March 16, 2015, the Corps granted a waiver to FEDCON to continue operations on the 2.2 Project as follows: (1) allowing pile driving to continue until the river reached elevation +14.0 feet; (2) stating that no new levee degrading, slope pavement demolition, or excavation would be allowed once the river reached elevation +11.0 feet; and (3) stating that all other phases of construction were required to cease once the river reached +15.0 feet. 391 Mr. Ferguson testified that, consequently, FEDCON could not build TFP or degrade. 392 152. On July 8, 2015, Jeff Falati further advised FEDCON that pile driving operations had to cease when the Mississippi River reached elevation +14.5 feet and that all operations had to cease when the Mississippi River reached elevation +15 feet. 393 On July 9, 2015, the Corps 385 Doc. 219-1089 at 1. Id.; Testimony of Lorenzo Ellis, Doc. 240 at 156:13–25. 387 Testimony of Lorenzo Ellis, Doc. 240 at 156:17–19. 388 Doc. 219-1089 at 1. 389 Doc. 216-12 at 1. 390 Testimony of Mark Ferguson, Doc. 234 at 107:1–9. 391 Doc. 221-33 at 1. 392 Testimony of Mark Ferguson, Doc. 234 at 107:15–18. 393 Doc. 221-80 at 1. 386 56 Case 8:17-cv-01932-CEH-AAS Document 262 Filed 01/28/21 Page 57 of 192 PageID 44861 directed all work on the 2.2 Project to cease because the river reached elevation +14.5 feet. 394 153. On August 6, 2015, in response to FEDCON’s inquiry regarding whether sheet and pipe pile driving could continue from Station 40+71 (484+71) to 43+00 (487+00)—the portion of the 2.2 Project before the area between the Chevron pipe bridges, which were located at Monoliths 075 and 079—Mr. Falati advised that the issue was whether TFP could be constructed in accordance with Step 2a on C-301. 395 Mr. Falati explained that FEDCON had advised that it could not construct the TFP in accordance with Step 2a, but had not yet provided a clear plan on how the minimum protection as shown in Step 2a could be provided in this area. 396 He also advised that, although FEDCON had stated that Step 2b could be constructed from Monoliths 71 through 75, this type of TFP would not provide the protection needed for a hurricane event. 397 Mr. Falati thus instructed FEDCON to provide a plan for this area if it desired to work in the area during hurricane season. 398 154. Similarly, in an October 16, 2015 letter to FEDCON, GLF explained that the Corps had relaxed the TFP contract requirement from Station 480+00 to 487+00 on the 2.2 Project, but FEDCON constructed TFP from 486+00 to 487+00 that was in accordance with neither Step 2a nor Step 2b, while FEDCON’s TFP construction from 480+00 to 486+00 complied with Step 2a. 399 Consequently, the Corps rejected this TFP work and, at a subsequent meeting, acknowledged that Step 2a could not be used, advised FEDCON to “think outside the box,” and directed FEDCON to give the Corps an acceptable plan. 400 GLF advised that, to its knowledge, no such 394 Testimony of Lorenzo Ellis, Doc. 240 at 144:7–12. Doc. 221-80 at 1. 396 Id. 397 Id. 398 Id. 399 Doc. 219-891 at 1–3. 400 Id. 395 57 Case 8:17-cv-01932-CEH-AAS Document 262 Filed 01/28/21 Page 58 of 192 PageID 44862 plan had been provided to the Corps. 401 155. Ellis testified that the first period of time for this claim, from May 17, 2015 to July 11, 2015, represents work front one not being available to GLF. 402 On the other hand, when the Mississippi River’s elevation came down in late September of 2015, FEDCON had never performed the predecessor work for GLF to continue at work front two, which is represented by the second period of time for this claim, from September 20, 2015 to May 28, 2016. 403 156. On August 7, 2015, GLF advised FEDCON that it would begin removing its resources from work front two on the 2.2 Project until FEDCON had an access plan approved by the Corps with GLF’s concurrence that the plan met the intent of the 2.2 Project Subcontract Agreement. 404 Although a November 21, 2015 e-mail from Lorenzo Ellis to Francesco Senis advised that GLF did not have any idle equipment for the Chevron work at that time, this recognition does not mean that GLF avoided incurring costs. 405 157. The Corps issued Modification No. A00016/R00019 in September of 2015, which extended the contract completion date by 137 calendar days “due to causes beyond the control and without the fault or negligence of [FEDCON], namely adverse weather, during the period from October 28, 2013 through July 31, 2015.” 406 Similarly, the Corps issued Modification No. A00021/R00024 in February of 2016, which extended the contract completion time by 24 calendar days “due to causes beyond the control and without the fault or negligence of [FEDCON], namely adverse weather, during the period from August 1, 2015 through November 30, 2015.” 407 158. Lorenzo Ellis testified that FEDCON made a “policy decision” to allow GLF to 401 Id. Testimony of Lorenzo Ellis, Doc. 240 at 155:25, 156:1–2. 403 Id. at 156:20–25. 404 Doc. 217-116 at 1. 405 Doc. 221-205 at 1. 406 Doc. 217-66 at 9–10. 407 Doc. 217-69 at 11–12. 402 58 Case 8:17-cv-01932-CEH-AAS Document 262 Filed 01/28/21 Page 59 of 192 PageID 44863 sit idle instead of paying to buy some dirt and rip rap “in order to stay ahead of this river and keep [the] job moving.” 408 GLF even paid HDB to conduct degrading work for the purpose of keeping the job moving. 409 Ellis testified that GLF was “bleeding” with “all this idle equipment and idle time” and was “doing anything [it] could to keep moving.” 410 iii. 1.2 Project 159. On the 1.2a Project, GLF claims that FEDCON’s failure to perform the predecessor work impacted GLF’s performance of work under the 1.2a Project Subcontract Agreement on 129 days. 411 These days span two periods of time: (1) from March 15, 2015, to July 11, 2015; and (2) from February 7, 2016, to May 21, 2016. 412 In this claim, GLF seeks $994,674.68, which utilizes EP 1110 rates. 413 160. The 1.2a Project Prime Contract required all construction work to cease when the Mississippi River reached or exceeded elevation +11 feet until the river subsided below such elevation. Like the 2.2 Project, the Corps granted FEDCON a limited waiver on the 1.2a Project on or about March 16, 2015, which provided that: (1) no new levee degrading, demolition of slope pavement, or excavation would be allowed once the Mississippi River reached elevation +11 feet; (2) no pile driving would be allowed once the Mississippi River reached elevation +14 feet; and (3) all other phases of construction must cease once the Mississippi River reached elevation +15 feet. 414 By letter dated March 24, 2015, GLF acknowledged that the 1.2a Project would receive a time extension of an unspecified number of additional days reflected in the scheduled updates for 408 Testimony of Lorenzo Ellis, Doc. 240 at 144:1–4. Doc. 217-153 at 1. 410 Testimony of Lorenzo Ellis, Doc. 240 at 146:7–9. 411 Doc. 219-1093 at 1. 412 Id. 413 Id. 414 Doc. 221-34 at 2. 409 59 Case 8:17-cv-01932-CEH-AAS Document 262 Filed 01/28/21 Page 60 of 192 PageID 44864 March and April of 2015 for each day that the high river restriction was in effect. 415 161. As with the 2.2 Project, Jeff Falati further advised FEDCON on July 8, 2015, that pile driving operations had to cease when the Mississippi River reached elevation 14.5 and that all operations had to cease when the Mississippi River reached elevation 15. 416 On July 9, 2015, GLF advised that, as a result of the “uncertain nature of river elevation during this high river season,” it would not work on the 1.2a Project until the river reached elevation +14.5 feet “and is falling,” which GLF estimated to occur on or around July 27, 2015. 417 On July 17, 2015, the river reached 15 feet. 418 GLF’s 1.2a Project two work front claim does not seek any damages from the period of time between July 11, 2015 and February 7, 2016. 419 162. Relevant to this time period in 2015, the Corps issued Amendment No. A00011/R00012, which extended the contract completion date by 107 calendar days as a result of adverse weather during the period from March 1, 2015, through June 30, 2015. 420 The Corps also issued Amendment No. A00013/R00015, which extended the contract completion date by 82 calendar days as a result of adverse weather during the period from July 1, 2015, through September 30, 2015. 421 163. In the beginning of 2016, GLF discussed, internally, a course for proceeding with the work, given the potential for the Mississippi River to rise again in the upcoming weeks. 422 Lorenzo Ellis cautioned that, although there were “a few pipe piles” still available to GLF, excavation at work front two of the 1.2a Project could not proceed until more TFP was constructed, 415 Doc. 221-45 at 2. Doc. 221-80 at 1. 417 Doc. 221-86 at 1. 418 Doc. 221-95 at 1. 419 Doc. 219-1093 at 1. 420 Doc. 217-43 at 8–9. 421 Doc. 217-44 at 7–8. 422 Docs. 222-11 at 1; 222-12 at 1; 222-14 at 1; 222-20 at 1. 416 60 Case 8:17-cv-01932-CEH-AAS Document 262 Filed 01/28/21 Page 61 of 192 PageID 44865 which would require the river’s level to decrease “quite a bit more.” 423 164. When FEDCON advised on February 16, 2016, that GLF needed to mobilize its pile driving and concrete cranes on work front two of the 1.2a Project, GLF advised that it had removed the resources as a result of the height of the Mississippi River and that, although GLF was remobilizing to perform available work, sheet piling operations were unnecessarily suspended by FEDCON until FEDCON built the TFP and degraded. 424 FEDCON responded that, after December 15, 2015, the Mississippi River had risen “to an elevation where standing water flood side impacted” degrading and TFP construction for work front two of the 1.2a Project. 425 FEDCON acknowledged that “[d]egrade/TFP construction” was still impacted by the high river level as of February 17, 2016. 426 165. On May 6, 2016, when asked for an update on the delivery of the pile driving crane for work front two on the 1.2a Project, GLF advised that the crane was scheduled for delivery on May 10, 2016, site conditions and weather permitting.427 iv. Both Projects 166. FEDCON never directed GLF to perform any of GLF’s work prior to the performance of the predecessor work. 428 Whenever the predecessor work activities were not complete at any particular work front, GLF’s labor and equipment remained idle until such time as the predecessor work was complete. 429 167. Although GLF was performing work on one work front on each of the projects during the various times that are the subject of GLF’s claims, FEDCON’s position was that it did 423 Doc. 222-11 at 2. Doc. 222-38 at 1. 425 Id. 426 Id. 427 Doc. 222-121 at 1. 428 Doc. 242 at 121:8–11. 429 Testimony of Lorenzo Ellis, Doc. 240 at 138:2–22, 145:4–25, 146:1–14. 424 61 Case 8:17-cv-01932-CEH-AAS Document 262 Filed 01/28/21 Page 62 of 192 PageID 44866 not have to provide notice under Paragraph 6B of the subcontracts to GLF that the work was being suspended on the other work front of each project. 430 168. According to Lorenzo Ellis, FEDCON “only wanted to use degraded material, so it was only during times of degrad[ing] that [FEDCON] wanted to build TFP or as much of TFP as [FEDCON] could build out of a degraded monolith.” 431 169. According to Lorenzo Ellis, the daily reports and time sheets reflect that, for each day, week, or month included in GLF’s REAs, work was proceeding at one work front on each project, which supports the conclusion that there was no high river condition or other impediment to GLF’s ability to perform its work other than FEDCON’s failure to perform the required predecessor work activities. 432 Lorenzo Ellis testified that the entire premise behind this claim was that, if GLF was driving piles on work front 1 of the 2.2 Project, there was no reason why it could not drive piles on work front 2 of the 1.2a Project, as the work was the same. 433 The only difference was that the predecessor activities had not been completed. 434 He attributed the lack of work to the incompletion of predecessor activities, not the river, explaining that the means and methods by which FEDCON chose to build the TFP—presumably to save money—resulted in GLF sitting idle for months. 435 170. Lorenzo Ellis performed a review of GLF’s daily reports, daily time sheets, payroll reports, equipment reports and equipment rates and testified as to the labor, including supervision, and equipment that GLF had in place and prepared to work that was idle while awaiting completion of the predecessor work activities for which FEDCON had responsibility.436 430 Testimony of David Boland, Doc. 243 at 212:18–25, 213:1–12. Testimony of Lorenzo Ellis, Doc. 240 at 143:2–6. 432 Id. at 148:5–25, 149:1–7. 433 Id. at 148:17–25. 434 Id. 435 Id. at 148:23–25, 149:1–7. 436 Testimony of Lorenzo Ellis, Doc. 240 at 158:24–25, 159:1–21, 161:8–25, 162:1–6. 431 62 Case 8:17-cv-01932-CEH-AAS Document 262 Filed 01/28/21 Page 63 of 192 PageID 44867 Pursuant to the testimony of Ellis and Brannon, discussed herein, GLF incurred direct costs of labor, including supervision, which includes labor burden, and the costs for equipment, utilizing EP 1110 rates, on the days when work could not be performed as a result of FEDCON’s failure to perform the predecessor work activities. 171. Ellis also testified that GLF “eventually mitigated the equipment.” 437 Indeed, if the equipment was not owned by GLF “and there was a way to mitigate the cost, we tried to get those things off as quick[ly] as we could,” balanced against the recognition that GLF awaited the availability of the work fronts. 438 GLF was still paying rent on equipment internally. 439 H. Low Profile Work on the 2.2 Project i. Specialized Equipment and Restrictions 172. The 2.2 Project Prime Contract required construction from approximately Monolith 063 to Monolith 075 to be performed outside of the time period from June 1 to November 30. At work front two of the 2.2 Project, at Monoliths 075 and 079, there were pipe bridges that extended from the Chevron plant overtop the levee and out to a dock where ships were loaded. As a result of the pipe bridges, GLF could not utilize its regular cranes and pile driving equipment to drive the sheet piles and pipe piles underneath the pipe bridges. GLF leased certain specialized equipment because such equipment was required 440 This work was known as the “low profile” work. 173. The specialized equipment and the procedures for using the equipment to drive the piling materials under the pipe bridges were required to be submitted by GLF to FEDCON and 437 Id. at 139:6–7. Id. at 147:4–16. 439 Id. at 157:1–12. 440 See Testimony of Mark Ferguson, Doc. 234 at 11:19–25, 12:1–9; Testimony of Lorenzo Ellis, Doc. 240 at 192:16– 24. 438 63 Case 8:17-cv-01932-CEH-AAS Document 262 Filed 01/28/21 Page 64 of 192 PageID 44868 by FEDCON to the Corps for review and approval by the Corps. 441 GLF always planned to use specialty equipment in this area in anticipation of the pipe bridges. 442 174. GLF initially submitted a proposed plan to drive the piling materials and construct the concrete wall under the pipe bridges at Monoliths 075 and 079. GLF’s submittal of its plan was approved by the Corps and returned to GLF on March 3, 2014. 443 In or about February of 2015, while waiting for FEDCON to degrade the levee so that the low profile work could be performed, GLF developed an alternate plan for the performance of the low profile work and sent a revised submittal for the plan to FEDCON. 444 FEDCON approved the submittal in February 2015. 445 On February 12, 2015, GLF notified FEDCON that it was planning to receive the equipment needed to drive the piles underneath the overhead structures in Chevron at the end of the following week. 446 GLF also advised it would start to assemble the equipment on February 23, 2015, so that it could begin work at Monolith 075 on March 2, 2015. 447 GLF stated it would install alarm bars under the structure at Monolith 075 by the close of business on February 20, 2015, so that “HDB [could] begin excavating below the structure per the excavation plan submitted.”448 Mark Ferguson testified that, on or about February 21, 2015, GLF was “approximately 20 monoliths” away from the low profile work. 449 Nonetheless, in response to GLF’s letter, Ferguson advised that the Corps was evaluating GLF’s low profile plan and that the Corps was aware of “our” planned low profile start date of March 2, 2015. 450 Ferguson emphasized the need to plan 441 Testimony of Lorenzo Ellis, Doc. 240 at 182:4–12; Testimony of Mark Ferguson, Doc. 234 at 43:2–10. Doc. 221-175 at 1. 443 See Testimony of Lorenzo Ellis, Doc. 240 at 188:11–16; see generally Docs. 220-123, 220-124, 220-125, 220-126, 220-127. 444 See Testimony of Mark Ferguson, Doc. 234 at 42:17–25, 43:1–10. 445 See Doc. 219-962 at 1. 446 Doc. 217-144 at 1. 447 Id. 448 Id. 449 Testimony of Mark Ferguson, Doc. 234 at 12:10–16. 450 Doc. 219-962 at 1. 442 64 Case 8:17-cv-01932-CEH-AAS Document 262 Filed 01/28/21 Page 65 of 192 PageID 44869 the work before starting, given the limited space available in this area. 451 Ferguson did not object or otherwise instruct GLF not to proceed with procuring and mobilizing the low profile work. 452 175. The equipment arrived and GLF assembled it and made the required modifications for its use in early-March of 2015. 453 176. But the levee at Monolith 075 was not degraded to elevation 8 on March 2, 2015. 454 Mark Ferguson recognized that this work was “a day’s work,” “could have been done easily within a day,” and that it was not necessary for this work to be done in sequence with the rest of the work being done on the monoliths. 455 177. The Corps approved GLF’s alternate plan for the low profile work at the Low Profile Prep Meeting that occurred on March 11, 2015. 456 The approved low profile work plan included degrading the levee at Monoliths 75 and 79 to elevation 8. 457 The same specialized equipment and low profile plan that required the work platform be constructed at elevation 8 beneath the pipe bridges at Monoliths 075 and 079 was used by the replacement subcontractor on the 2.2 Project, Bo-Mac Contractors. 458 178. Additionally, as previously mentioned, the 2.2 Project Prime Contract limited the work to be performed by FEDCON, as the contractor, during high river season, which was from December 15 to June 15. As discussed, Mark Ferguson testified that a high-river event occurred in mid-March of 2015. 459 However, on March 16, 2015, the Corps granted a waiver to FEDCON to continue operations on the 2.2 Project past the elevation +11 restriction at which all construction 451 Id. Testimony of Mark Ferguson, Doc. 234 at 48:23–25, 49:1–2. 453 Testimony of Lorenzo Ellis, Doc. 240 at 192:16–25, 193:1; 234:2–16. 454 Testimony of Mark Ferguson, Doc. 234 at 46:8–17. 455 Id. 456 Testimony of Lorenzo Ellis, Doc. 240 at 183:2–6, 188:11–26; Doc. 216-139 at 1–4. 457 Testimony of Lorenzo Ellis, Docs. 240 at 181:25, 182:1–12; Testimony of Mark Ferguson, Doc. 234 at 43:2–10. 458 Testimony of David Boland, Doc. 243 at 198:18–25, 199:1–25, 200:1–18. 459 Testimony of Mark Ferguson, Doc. 234 at 107:1–9. 452 65 Case 8:17-cv-01932-CEH-AAS Document 262 Filed 01/28/21 Page 66 of 192 PageID 44870 was required to cease, with such waiver: (1) allowing pile driving to continue until the river reached elevation +14.0 feet; (2) stating that no new levee degrading, slope pavement demolition, or excavation would be allowed once the river reached elevation +11.0 feet; and (3) stating that all other phases of construction must cease once the river reached +15.0 feet. 460 179. Despite the hurricane restriction from approximately Monolith 063 to Monolith 075, the Corps had directed FEDCON to perform work within the hurricane restricted area and work proceeded under a variance from June 1 through July 2, 2015. 461 180. The river rose to a level that demanded a complete stoppage of work on or about July 9, 2015, which lasted until the end of September of 2015, despite this period of time being outside high river season. 462 On or around July 9, 2015, GLF had driven steel pipe piles at Monolith 072 and driven steel sheet piles at Monoliths 073 and 074. 463 181. Mark Ferguson acknowledged that the levee had not been degraded to elevation 8 at Monoliths 075 and 079 to allow the work to proceed by the time that the high river restriction went into effect, asserting that FEDCON would not perform that work until it was “ready.”464 According to Ferguson, performing this work would have “created an issue,” in which FEDCON “couldn’t pass through there.” 465 182. David Boland testified that FEDCON was unable to perform work in this area in the fall of 2015 as a result of hurricane season. 466 Additionally, he claimed that FEDCON could have excavated this area if GLF had provided an indication that it was planning to remobilize when FEDCON had asked GLF to remobilize in December of 2015, but excavating this area without 460 Doc. 221-33 at 1. Doc. 217-110 at 1; Testimony of Lorenzo Ellis, Doc. 241 at 20:5–22. 462 Testimony of Lorenzo Ellis, Doc. 240 at 144:5–16. 463 Id. at 211:17–22. 464 Testimony of Mark Ferguson, Doc. 234 at 43:2–17. 465 Testimony of David Boland, Doc. 243 at 203:12–25, 204:1–2. 466 Id. 461 66 Case 8:17-cv-01932-CEH-AAS Document 262 Filed 01/28/21 Page 67 of 192 PageID 44871 GLF’s equipment on site would have presented a problem because it would create a hole in which water would have gathered. 467 He further testified that FEDCON did not degrade the levee to elevation 8 at Monolith 075 or Monolith 079 per the approved plan at any point between January 1, 2016, to May 26, 2016, the day of termination, because there was “no reason” to do so. 468 183. FEDCON was required to perform the predecessor work before GLF could perform the low profile work. 469 Ellis testified that, although GLF had procured and modified the equipment and cut the materials, the equipment was idle throughout the spring and summer up until August 7, 2015, because FEDCON never degraded the levee to elevation 8 per the plan.470 Ferguson likewise confirmed that, as of the date when the work had to cease because of the high river restriction in July 2015, the levee at Monolith 075 had not been degraded to elevation 8.471 Indeed, when the river rose, none of the low profile work was able to begin after July 9, 2015.472 As a result, GLF was required to continue renting the specialty equipment for an extended period. 473 184. FEDCON could have degraded the levee at both Monolith 075 (outside of hurricane season) and Monolith 079 at any time to allow the low profile work to be performed by GLF, as this work needed different equipment, but failed to do so prior to the stoppage for high river. 474 Ellis testified that the levee was not degraded to elevation 8 under Monolith 075 or Monolith 079 by May 26, 2016, the date of FEDCON’s termination of the 2.2 Project Subcontract Agreement. 475 The failure to degrade the levee to elevation 8 in this area impacted GLF’s efforts 467 Id. Id. 469 See Testimony of Lorenzo Ellis, Doc. 241 at 38:8–25, 39:1–2. 470 Id. at 38:2–20. 471 Testimony of Mark Ferguson, Doc. 234 at 44:5–9. 472 Testimony of Lorenzo Ellis, Doc. 240 at 199:16–19. 473 Id. at 199:20–25, 200:1–10; Testimony of Patrick Brannon, Doc. 243 at 24:24–25, 25:1–8. 474 Testimony of Mark Ferguson, Doc. 234 at 47:2–7, 48:1–15. 475 Testimony of Lorenzo Ellis, Doc. 240 at 201:3–21. 468 67 Case 8:17-cv-01932-CEH-AAS Document 262 Filed 01/28/21 Page 68 of 192 PageID 44872 to utilize the cut pipe pile and sheet pile, as the sheet and pipe were too long in the absence of the requisite degrading to elevation 8. 476 185. In an August 3, 2015 e-mail to FEDCON and others, Jeff Falati concurred with the premise that FEDCON could continue degrading and “reconfiguring the TFP” in the area between the two Chevron pipe bridges once the level of the Mississippi River went below 14.5 feet. 477 He also advised that, although FEDCON had stated that Step 2b could be constructed from Monoliths 71 through 75, this type of TFP would not provide the protection needed for a hurricane event. 478 Mr. Falati instructed FEDCON to provide a plan for this area if it wished to work here during hurricane season. 479 ii. Demobilization and Obstacles to Remobilization 186. On August 7, 2015, GLF advised FEDCON that, because FEDCON could not “provide access, in accordance with the prime contract and our subcontract agreement,” GLF would “remove all resources” from work front two on the 2.2 Project beginning on August 10, 2015, “until such time as Fedcon has a fully accepted access plan approved by the [Corps] and concurrence from GLF that it meets the intent of our subcontract agreement.” 480 Ellis testified that this language regarding a fully accepted access plan referred to an access plan for the area behind Chevron from Station 41+71 through 72+50 that was submitted on June 10, 2015, discussed in further detail herein. 481 GLF emphasized in the letter that it was “evident that access to work front #2, beginning at monolith 61, and continuing through Chevron,” remained “unresolved.” 482 The letter, entitled “Notice of Intent to Claim: Work front access,” advised FEDCON to accept the 476 Id. at 201:22–25, 202:25. Doc. 216-321 at 2. 478 Id. 479 Id. 480 Doc. 217-116 at 1. 481 Testimony of Lorenzo Ellis, Doc. 241 at 23:15–18. 482 Doc. 217-116 at 1. 477 68 Case 8:17-cv-01932-CEH-AAS Document 262 Filed 01/28/21 Page 69 of 192 PageID 44873 letter as formal notice per the 2.2 Project Subcontract Agreement that GLF reserved “its right to seek recovery of all additional costs and time, leading up to, during and moving forward resulting from any impacts associated with this issue.” 483 The letter, therefore, did not specifically address the failure to degrade the levee to elevation 8. 187. GLF accordingly demobilized on work front two around the first week of August of 2015, which included demobilizing the equipment that had been procured to perform the low profile work. 484 GLF demobilized because: (1) it was paying rental charges on idle equipment; (2) the existence of a high river period, even though high river season should have ended by then; (3) FEDCON had not degraded the levee down to elevation 8; and (4) the lack of an approved access plan. 485 The decision to demobilize was a “very tough decision” for GLF because the equipment was “very hard to come by.” 486 188. Without an approved access plan, the only task that GLF could have completed, which is what it was working on, was to drive five or six piles at Monolith 072. 487 189. The river came down towards the end of September of 2015. 488 190. On December 18, 2015, GLF responded to a letter from FEDCON, advising that it was unable to offer a schedule for low profile activities because the “access/haul road FEDCON is contracted to provide is not yet installed.” 489 GLF advised that the 2.2 Project Subcontract Agreement required FEDCON to provide an access road adjacent to the work platform on the protected side of the levee, extending the length of the levee, but FEDCON’s proposed access plan 483 Id. Testimony of Lorenzo Ellis, Doc. 240 at 199:21–24. 485 Id. at 199:25, 200:1–14; Testimony of Lorenzo Ellis, Doc. 241 at 1–25; Doc. 217-116 at 1. 486 Testimony of Lorenzo Ellis, Doc. 240 at 200:15–19. 487 Testimony of Lorenzo Ellis, Doc. 241 at 25:3–10. 488 Id. at 24:21–24. 489 Doc. 221-243 at 1. 484 69 Case 8:17-cv-01932-CEH-AAS Document 262 Filed 01/28/21 Page 70 of 192 PageID 44874 for access that terminated at the platform did not constitute access at all. 490 GLF also advised that it had previously procured the equipment to perform this work per FEDCON’s direction, only for FEDCON to fail to plan or perform the predecessor activities so that the low profile pile installation could begin. 491 GLF advised that it intended to recover all costs for the previous procurement of the specialty equipment and that FEDCON should accept the letter as notice of that intention. 492 iii. Low Profile Claim 191. GLF submitted a claim for the low profile work, which includes costs purportedly incurred from March 1, 2015 through August 22, 2015. 493 The claim is based on GLF’s costs for the rental of the specialty equipment for that period of time and for its preparation to perform the low profile work, with costs including labor costs, the costs of modifying the equipment, the costs of preparing the sheet pile and pipe pile materials, and the rent paid to the equipment suppliers for the specialty equipment required to perform the low profile pile driving work. 494 The costs do not indicate any charges for equipment because the equipment is all specialty equipment rented by GLF; Ellis accordingly relied on the rental invoices from vendors in preparing the claim, which are listed under “other costs.” 495 GLF provides two weekly cost summaries for this claim: the first is in the amount of $351,402.28, and the second is in the amount of $353,624.98. 496 GLF has failed to provide a cogent explanation of the difference between these two weekly cost summaries and relies upon the former in its proposed findings. As such, the Court construes this claim as requesting $351,402.28. I. GLF’s Double-Handling and Triple-Handling of Materials from Monolith 060 490 Id. Id. 492 Id. 493 Docs. 218-702 at 1; 218-714 at 1. 494 Testimony of Lorenzo Ellis, Doc. 240 at 202:2–25, 203:1–25, 206:23–25, 207:1–8. 495 Id. at 206:23–25, 207:1–12. 496 Docs. 218-702 at 1; 218-714 at 1. 491 70 Case 8:17-cv-01932-CEH-AAS Document 262 Filed 01/28/21 Page 71 of 192 PageID 44875 through Monolith 074 on the 2.2 Project 192. As discussed, the 2.2 Project Subcontract Agreement required GLF to be furnished with: “a temporary access road approximately 12’ wide and extending the length of the levee, located adjacent to the temporary work platform on the protected side of the levee.” 497 The purpose of the temporary access road was to allow for delivery of pipe piles and sheet piles adjacent to the location where the piling materials were being driven. Such delivery required GLF to handle the materials one time via crane. 498 193. In January of 2015, GLF and FEDCON had discussed access in the Monolith 063 to 075 area of the 2.2 Project, as this area was narrower than some other areas of the 2.2 Project. 499 Subsequently, FEDCON made the unilateral decision to combine the construction of the access road with the construction of the work platform, such that the access road transitioned into the work platform “and all you had was a work platform.” 500 The Court finds Ellis’ testimony that GLF did not agree to this arrangement to be credible. 501 194. As a result, GLF had to double-handle and triple-handle materials from approximately Monolith 060 to Monolith 074, such that delivery of the sheet pile and pipe pile materials were brought up from behind where the pile driving work was to be performed as opposed to adjacent to where the pilings were to be driven. 502 195. Ellis clarified that the lack of an access road in this area, which resulted in double- and triple-handling of materials, posed an access road problem, not a work platform problem: GLF was provided with a 30-foot-wide work platform with a 3:1 slope, which GLF 497 Doc. 216-117 at 2. See Testimony of Lorenzo Ellis, Doc. 240 at 212:19–25, 213:1–5. 499 Id. at 210:9–25, 211:1–16. 500 Id. 501 Id. 502 Id. at 211:17–25, 212:1–20; Testimony of Lorenzo Ellis, Doc. 241 at 14:6–21. 498 71 Case 8:17-cv-01932-CEH-AAS Document 262 Filed 01/28/21 Page 72 of 192 PageID 44876 deemed to be a safe work platform for cranes. 503 David Boland testified that GLF did not refuse to perform the work due to the lack of an access road, that GLF did not require the execution of a change order before performing the work in this area, and that GLF did not receive a written order to do the work without an access road. 504 196. As a result of FEDCON’s unilateral decision to combine the temporary access road with the work platform, GLF was required to utilize the concrete crane to pick up the sheet piling materials and move the materials forward and drop them for the pipe pile crane to pick up, move, and drop the materials so that the sheet pile driving crane could pick up and move them around into position to be driven. 505 Thus, this practice resulted in GLF triple-handling the sheet piling materials. 506 For the pipe piles, a similar process was used: the concrete crane initially picked up the pipe piles, moved them forward, and dropped them, so that the pipe pile crane could pick up the pipe piles, swing them around, and move them forward to be driven. 507 This practice resulted in GLF double-handling the pipe piling materials. 508 197. This double-handling and triple-handling of materials reduced GLF’s pile driving productivity, resulting in GLF taking more time to drive the same number of pile materials, because the crews were not performing the required subcontract work while engaging in the activity of picking up and moving piling materials. 509 198. On May 3, 2015, GLF advised FEDCON that, as GLF entered the limits of the Chevron plant, access was “diminishing” to the point where GLF was double-handling sheet piles 503 Testimony of Lorenzo Ellis, Doc. 241 at 14:17–25, 15:1–12. Testimony of David Boland, Doc. 232 at 133:9–19. 505 Testimony of Lorenzo Ellis, Doc. 240 at 212:2–18. 506 Id. at 212:19–20. 507 Id. at 217:8–17. 508 Id. at 217:18–20. 509 See id. at 212:7–25, 213:1–25, 214:1–10. 504 72 Case 8:17-cv-01932-CEH-AAS Document 262 Filed 01/28/21 Page 73 of 192 PageID 44877 and pipe piles in order to deliver to the work front. 510 As such, GLF asked for FEDCON to provide “the approved access plan, which complies with [the access road and work platform provisions within the scope of work section of the 2.2 Project Subcontract Agreement] for the Chevron limits.” 511 Mark Ferguson admitted during trial that materials were at least doublehandled because the space limitations in this area—an area which he had previously harbored suspicions regarding the sufficiency of available space—were realized and FEDCON integrated the access road with the work platform, thereby resulting in the need to double-handle materials. 512 199. GLF submitted a REA for the additional hours that it took to drive pilings between approximately Monolith 060 and Monolith 074 and the costs associated with the number of hours during which the crew and equipment could not perform work. 513 Ellis described this claim as an “active equipment claim” because GLF “actually ha[d] to do something.” 514 Based upon down time of the equipment due to the lack of an access road, GLF determined that it incurred additional costs equivalent to an extra twelve and one-half (12.5) days of cumulative time to deliver and unload the required number of sheet piles and pipe piles due to the need to double- and triple-handle the piling materials than it would have if the piling materials did not need to be double- and triple-handled. 515 GLF determined the number of hours each piece of equipment could not be utilized that accumulated to the twelve and one-half (12.5) days and computed the cost of the labor and equipment for those hours. 516 GLF submitted a request to 510 Doc. 217-151 at 1. Id. 512 Testimony of Mark Ferguson, Doc. 234 at 58:25, 59:1–20. 513 See Testimony of Lorenzo Ellis, Docs. 240 at 52:24–25, 53:1–7, 54:12–25; 241 at 14:6–21; Testimony of David Boland, Doc. 232 at 185:4–7. 514 Testimony of Lorenzo Ellis, Doc. 240 at 215:19–20. 515 See id. at 220:11–24. 516 See Docs. 218-724 at 1; 218-733 at 1. 511 73 Case 8:17-cv-01932-CEH-AAS Document 262 Filed 01/28/21 Page 74 of 192 PageID 44878 FEDCON for payment for the number of hours that accumulated to the twelve and one-half days (12.5) days in the amount of $152,511.26 for the labor and equipment costs, including supervision and labor burden. 517 Ellis testified to his understanding that the Corps valued the claim at nine and one-half days. 518 200. According to David Boland, GLF later revised the estimate to $119,000 “or something.” 519 He testified that the Corps believed that GLF’s estimate was high, and FEDCON requested substantiation of GLF’s position from GLF, but GLF never provided such substantiation. 520 FEDCON accordingly negotiated and settled the claim with the Corps for $89,562.78, and FEDCON credited this amount to GLF in its damage claim on the 2.2 Project.521 Thus, FEDCON and the Corps settled the claim for less than the amount that GLF sought. 522. 201. GLF provided two summaries of its damages for this double- and triple-handling claim: one in the above-mentioned amount of $152,511.26, and one in the amount of $111,953.47. 523 The former utilizes Blue Book rates, while the latter utilizes EP 1110 rates.524 Because the Court has determined that EP 1110 rates are the proper rates, the Court will treat the latter as GLF’s summary of its damages for this claim. J. FEDCON’s Termination of the 2.2 Project Subcontract Agreement and FEDCON’s Claim that GLF Breached the Subcontract by Failing to Perform the Work Pursuant to Directions Received From FEDCON i. Proposed Access Plans and FEDCON’s Notification of a Differing Site Condition 202. The 2.2 Project Subcontract Agreement required GLF to be provided with two 517 See Doc. 218-724 at 1. Testimony of Lorenzo Ellis, Doc. 240 at 56:9–25, 57:1. 519 Testimony of David Boland, Doc. 232 at 185:4–22. 520 Id. 521 Id.; Doc. 222-307 at 1. 522 Testimony of Lorenzo Ellis, Doc. 240 at 54:25, 55:1–10; Testimony of David Boland, Doc. 232 at 185:4–22. 523 Docs. 218-724 at 1; 218-733 at 1. 524 Testimony of Lorenzo Ellis, Doc. 240 at 214:11– 25, 215:1– 2, 219:14–21. 518 74 Case 8:17-cv-01932-CEH-AAS Document 262 Filed 01/28/21 Page 75 of 192 PageID 44879 temporary work platforms approximately 30 feet wide by 600 feet long and a temporary access road that was approximately 12 feet wide, extended the length of the levee, and located adjacent to the temporary work platform on the protected side of the levee in order to perform its work. 203. Prior to May 20, 2015, one of the Corps’ primary concerns was the existence of a detailed access plan for the remainder of the work south of Monolith 070 on the 2.2 Project. 525 On May 29, 2015, Jeff Falati asked FEDCON to submit its plan for access through Chevron. 526 204. On June 10, 2015, FEDCON sent a proposed access plan to the Corps for the area behind Chevron from Station 41+71 through 72+50, which included a written narrative, cross sections through various points on the levee, and a plan view, and detailed work for Monolith 072 through Monolith 118.527 This plan addressed several ideas developed by Mark Ferguson, including placing a portion of the access road on top of the levee at a degraded elevation and ramping down the road on the flood side of the levee. 528 On the same day, FEDCON sent the proposed access plan to GLF, advising that FEDCON had submitted the plan to the Corps and “[w]e are all aware of the restrictions and challenges in this area.” 529 This proposed access plan was the first specific access plan that FEDCON had furnished to GLF regarding the area in question. 530 205. On June 18, 2015, GLF responded to FEDCON’s proposed access plan, advising that the proposed access plan presented “continued material changes” from the 2.2 Project Subcontract Agreement and that GLF was placing FEDCON on notice that it reserved “its right to seek recovery of all additional costs and time resulting from any impacts associated with 525 See Doc. 216-267 at 1. Doc. 217-155 at 1. 527 Doc. 217-105 at 1–25; Testimony of Mark Ferguson, Doc. 234 at 69:24–25, 70:1–7. 528 Testimony of Mark Ferguson, (Doc. 234 at 70:8–16. 529 Doc. 217-108 at 1. 530 Testimony of Ken Yerk, Doc. 237 at 63:18–21. 526 75 Case 8:17-cv-01932-CEH-AAS Document 262 Filed 01/28/21 Page 76 of 192 PageID 44880 access.” 531 GLF also informed FEDCON of many issues with the proposed access plan. 532 On July 7, 2015, GLF reiterated that the lack of access, “particularly in the Chevron area,” continued to impact GLF’s production and that it still could not supply sheet pile, pipe pile, or concrete to its crews from Monolith 069 through Monolith 079. 533 206. On July 9, 2015, the Corps directed all work on the 2.2 Project to cease as the Mississippi River rose to elevation 14.5. 534 The river remained at an elevation that prohibited the performance of work until the end of September of 2015. 535 207. According to a subsequent GLF monthly report for the 2.2 Project, as of July 31, 2015, GLF’s job cost was $11,258,531.00, while its total amount billed was only $5,669,071.68, representing a difference of $5,589,459.32. 536 Francesco Senis credibly testified that these numbers were inaccurate. 537 However, Mr. Senis also testified that he was not hiding the fact that GLF was losing money on the 2.2 Project and even more money on the 1.2a Project. 538 208. On August 7, 2015, GLF advised FEDCON that GLF would be removing all of its resources from work front two on the 2.2 Project beginning on August 10, 2015, “until such time as Fedcon has a fully accepted access plan approved by the [Corps] and concurrence from GLF that it meets the intent of our subcontract agreement.” 539 GLF advised FEDCON to accept the letter as formal notice that GLF reserved its right to pursue recovery of all additional costs and time resulting from associated impacts. 540 GLF explained that it was “evident that access to work 531 Doc. 217-37 at 2. Id.; Testimony of Ken Yerk, Doc. 237 at 63:25, 64:1–2. 533 Doc. 217-111 at 1. 534 Testimony of Lorenzo Ellis, Doc. 240 at 144:7–12. 535 Id. at 144:13–16, 156:10–21. 536 Doc. 221-170 at 4. 537 Testimony of Francesco Senis, Doc. 236 at 199:23–25, 200:1–19, 201:3–10. 538 Id. at 201:11–24. 539 Doc. 217-161 at 2. 540 Doc. 217-161 at 2. 532 76 Case 8:17-cv-01932-CEH-AAS Document 262 Filed 01/28/21 Page 77 of 192 PageID 44881 front #2, beginning at monolith 61 and continuing through Chevron” remained “unresolved.”541 The Court previously discussed GLF’s reasons for demobilizing. GLF’s demobilization included the low profile work equipment at Monolith 075 and Monolith 079, which were the locations of the low-profile work and in the area of the Chevron plant area that was being affected by hurricane season, high river, and the access issues. David Boland testified that the last monolith GLF constructed was Monolith 071, while GLF drove pipe piles and sheet piles at Monolith 072 and drove some sheet piling at Monolith 073 and Monolith 074. 542 209. Sometime in either the end of August of 2015 or in early September of 2015, Rick Batdorf took over for Jason Whitworth as the construction manager for FEDCON on the 2.2 Project. 543 Upon beginning this position, Batdorf immediately considered concepts for providing access to work front two of the 2.2 Project. 544 The work was stopped on both projects because of the high river event on both projects at this time. 545 Ultimately, the Corps rejected FEDCON’s June 2015 proposed access plan. 546 210. As such, beginning in August of 2015, FEDCON explored various potential access plans for the work on work front two of the 2.2 Project. One idea developed by FEDCON personnel was to place the access road on top of the TFP and widening the TFP, but this idea was not implemented. 547 Another idea was to move the TFP further out on the batture and place the access road between the levee and TFP for a portion of the work front two work. 548 However, on September 18, 2015, David Boland advised Francesco Senis that moving the location of the TFP 541 Id. Testimony of David Boland, Doc. 232 at 86:1–9. 543 Testimony of Rick Batdorf, Doc. 235 at 56:11–13, 57:16–19. 544 Id. at 55:21–25, 56:1–10. 545 Id. at 56:14–17. 546 Testimony of Mark Ferguson, Doc. 234 at 70:17–20. 547 Testimony of Rick Batdorf, Doc. 235 at 62:11–14. 548 See Testimony of Mark Ferguson, Doc. 234 at 75:5–19, 76:4–8; 217-162 at 1. 542 77 Case 8:17-cv-01932-CEH-AAS Document 262 Filed 01/28/21 Page 78 of 192 PageID 44882 was not a viable option because an engineering firm retained by FEDCON had determined that it could not “utilize a soil strength value as high as the [Corps] had utilized in its original design.”549 As such, Boland advised that “work front two will be moved to Monolith Number 88 and extend south, and access will be provided by a temporary access road on the flood side of the levee from Gate Monolith 72 south to Monolith Number 118 with the work platform on the protected side of the levee.” 550 In the end, the revised access plan for work front two involved utilizing K Street inside the Chevron plant. 551 FEDCON finalized this agreement with Chevron in approximately January of 2016. 552 211. In the meantime, the river receded in September of 2015. Once the river receded, work by GLF proceeded on both work fronts of the 1.2a Project and work front one of the 2.2 Project. 553 Work proceeded continuously on these three work fronts, other than when interrupted by further high river impacts. 554 212. In October of 2015, FEDCON requested GLF to proceed with the low profile work at Monolith 079—in the area of the pipe bridges from the Chevron plant. 555 The low profile work at Monolith 075, where the other pipe bridges were located, could not be performed during hurricane season, which was ongoing at that point. 556 The levee at Monolith 076 through 079 was not degraded by HDB until December 4, 2015, so the low profile work was not available to be performed in October of 2015. 557 213. Significantly, on October 21, 2015, Rick Batdorf of FEDCON expressed 549 Doc. 217-180 at 1. Id. at 1–2 (emphasis added). 551 Testimony of Rick Batdorf, Doc. 235 at 62:18–22. 552 Testimony of Rick Batdorf, Doc. 235 at 63:3–6; Testimony of David Boland, Doc. 233 at 94:21–24. 553 Testimony of Rick Batdorf, Doc. 235 at 64:12–15. 554 Id. at 64:16–20. 555 Testimony of David Boland, Doc. 233 at 95:11–23. 556 See id. 557 See Doc. 216-80 at 1. 550 78 Case 8:17-cv-01932-CEH-AAS Document 262 Filed 01/28/21 Page 79 of 192 PageID 44883 agreement that the “road down on the flood side is a change from what is required in your contract but was necessitated by a lack of physical space between the fence line and the levee.” 558 He emphasized that “most areas do not have enough room for a work platform and adjacent road” and explained that FEDCON was working on a solution and had approached GLF on several occasions for its comments but was told that GLF did not have any comments or suggestions. 559 In response, Senis advised his team, internally, that GLF had been abused since the beginning of the project, that GLF needed to get David Boland “into a corner to gain an economical advantage,” and that they needed to “play [their] cards very, very, very slowly.” 560 214. On October 30, 2015, FEDCON placed the Corps on notice of a differing site condition at work front two, behind the Chevron petrochemical plant. 561 A “differing site condition” is a condition that exists on a project that differs from the conditions depicted on the contract drawings and specifications.” 562 FEDCON’s letter provided that “investigation into the layout of the work platform and access road” had determined that the Chevron fence and Chevron water pipeline encroached into the temporary work area easement “beginning at approximately Wall Baseline Station 41+00 to 45+00 and then again at approximately from Wall Baseline Station 49+50 past 62+00.” 563 David Boland testified that the differing site condition began at approximately Monolith 060 and continued south of Monolith 090 or Monolith 095.564 The most significant encroachment occurred in the area of Monolith 090 to Monolith 092 where “the existing levee and floodwall would change direction and take a dog leg right.” 565 FEDCON 558 Doc. 216-237 at 2. Id. 560 Id. at 1. 561 Doc. 134 ¶20. 562 Testimony of Rick Batdorf, Doc. 235 at 13:23–25, 14:1–2. 563 Doc. 221-168 at 1–2. 564 Testimony of David Boland, Doc. 232 at 143:17–23. 565 Id. at 143:17–25, 144:1–4. 559 79 Case 8:17-cv-01932-CEH-AAS Document 262 Filed 01/28/21 Page 80 of 192 PageID 44884 complained in its letter to the Corps about the inability to verify “any dimensions on the drawings in that area” before bid submission and averred that a “reasonable assumption” was that the fence and pipeline would be outside of the area depicted on the drawings. 566 FEDCON concluded that (1) the access road would need to be constructed on the flood side of the TFP, thereby subject to flooding and more frequent maintenance; and (2) a “secondary access to the work platform” would be needed to allow for steel delivery, crane maintenance, and crane mobilization. 567 FEDCON also advised that its subcontractors had provided “notification that they will seek compensation for these impacts.” 568 215. On November 10, 2015, the Corps rejected FEDCON’s claim that a differing site condition existed and emphasized that “FEDCON is responsible for constructing the contract work within the physical limitations of the project site.” 569 216. On November 13, 2015, FEDCON advised GLF that FEDCON was “ready to commence low profile operations at Monolith[s] 75 and 79.” 570 GLF responded that “a visual observation of the site” confirmed that access had not been established in accordance with the 2.2 Project Subcontract Agreement and that GLF would remobilize the equipment and resources to perform this work once such access was established. 571 Ernest Howard of GLF reiterated, internally, that although GLF could access the work, it would not be in accordance with the 2.2 Project Subcontract Agreement, which called for the access road on the protected side of the levee. 572 217. FEDCON also agreed to issue change orders to HDB for both projects to perform 566 Doc. 221-168 at 1–2. Id. 568 Id. 569 Doc. 221-185 at 1–2. 570 Doc. 221-186 at 4. 571 Id. at 3. 572 Doc. 221-180 at 1. 567 80 Case 8:17-cv-01932-CEH-AAS Document 262 Filed 01/28/21 Page 81 of 192 PageID 44885 some reconstruction work on the access roads for the low profile work on November 13, 2015. HDB did not degrade the levee at Monolith 076 through 079 until December 4, 2015. 573 Neither FEDCON nor HDB performed any additional work in regard to the work platform in this area between December 4, 2015 and May of 2016. 574 218. In anticipation of FEDCON taking the position that GLF should file a claim with FEDCON regarding the access and proceed with the work, Mr. Senis explained in an internal email to GLF that FEDCON’s failure to provide access would result in “no work at Chevron.” 575 219. After FEDCON notified GLF in the beginning of December of 2015 that FEDCON was “ready to commence the low profile operations at Monolith[s] 79 and 75,” Ernest Howard of GLF emphasized to the GLF team the need for GLF to recover all “low overhead standby equipment cost” that GLF had incurred prior to considering remobilization.” 576 Ellis computed a cost estimate of $40,139.10 per day, with an additional cost for the low profile work of $9,633.09 per day, as a “reasonable daily rate for doing work at Chevron” 577 GLF ultimately responded to FEDCON by issuing the December 18, 2015 letter, which emphasized that the proposed access plan, in which the access road terminated at the work platform, did not satisfy FEDCON’s obligation. 578 Mr. Senis also raised concerns with GLF personnel regarding FEDCON’s licensure and even instructed GLF personnel to explore whether FEDCON had violated the storm drainage permit for the 2.2 Project. 579 ii. Development of New Access Plan and FEDCON’s Initial Engineering Analysis 573 Docs. 216-80 at 1. Testimony of David Boland, Doc. 233 at 102:3–15; Testimony of Lorenzo Ellis, Doc. 241 at 58:1–4. 575 Doc. 221-189 at 1. 576 Doc. 221-227 at 1. 577 Doc. 221-240 at 1–2. 578 Doc. 221-243 at 1. 579 Docs. 221-218 at 1–2; 221-205 at 1. 574 81 Case 8:17-cv-01932-CEH-AAS Document 262 Filed 01/28/21 Page 82 of 192 PageID 44886 220. On December 22, 2015, FEDCON informed GLF that FEDCON had negotiated, and would execute, an agreement with Chevron that allowed for access through Chevron “for the delivery and unloading of materials for the construction of the floodwall south of Station 490+00.” 580 FEDCON advised that a gate would be installed at Chevron’s fence to allow delivery trucks to travel along K Street and unload at the location where the work was being performed as the work progressed down the levee. 581 FEDCON also specified that a temporary access road would be constructed “over the degraded levee and ramped down to the work platform, and extended as the work front progresses, for the delivery of concrete and reinforcing steel,” whereas the access through Chevron pertained to the delivery of steel sheet piling and steel pipe piling.582 FEDCON accordingly sought GLF’s proposal for “any cost impacts” that GLF anticipated “as a result of utilizing the access through the southern portion of the project.” 583 221. On December 28, 2015, GLF acknowledged receipt of this new proposed access plan issued by FEDCON and detailed additional information that GLF needed to evaluate the new plan. 584 On December 30, 2015, GLF wrote to FEDCON, advising that under Paragraph 10.A, FEDCON was required to issue written notice of the change in the work and the 2.2 Project Subcontract Agreement would then “need[] to be modified in writing, i.e. a change order, to reflect the equitable adjustment that is required for the additional time and cost associated with the change.” 585 Further, “[i]n order not to delay the process while FEDCON undertakes to do what is necessary to provide GLF with the minimum required information for the preparation of a price to perform the changed work,” GLF advised that it was prepared to proceed with the changed work 580 Doc. 216-209 at ). Id. 582 Id. 583 Id. 584 Id. at 1–3. 585 Doc. 217-143 at 3. 581 82 Case 8:17-cv-01932-CEH-AAS Document 262 Filed 01/28/21 Page 83 of 192 PageID 44887 upon receipt of a change order on either the following alternative bases: (1) FEDCON’s agreement to pay GLF a daily rate for completion of the work between Monolith 072 and Monolith 118; or (2) FEDCON’s agreement to pay GLF on a time and equipment basis to perform the work from Monolith 072 and Monolith 118. 586 Francesco Senis testified that, as FEDCON had not finalized a specific plan at this time, GLF presented these two options and did not insist upon, or require, the issuance of a change order for a specific dollar amount in order to proceed with the work. 587 222. On January 4, 2016, GLF personnel expressed concerns to FEDCON regarding the use of the Chevron property for access to work front two, explaining that the Chevron plant required it to “perform a substantial amount of activities within an active petrochemical plant which was never contemplated based upon the agreed conditions” of the 2.2 Project Subcontract Agreement. 588 As such, GLF invited FEDCON to both develop and implement a solution allowing GLF to perform its work within the confines of the project, without the liabilities associated with working within a petrochemical plant. 589 Regarding a letter from FEDCON accusing GLF of being obstructive, Mr. Senis testified that, by seeking to move the access road through the Chevron plant, FEDCON sought to avoid all costs and shift the risks, problems, and liabilities to GLF, similar to FEDCON’s decision to use a different sheet pile material to save costs. 590 Mr. Senis also testified that FEDCON and GLF seemed to be in agreement that this situation constituted a change to the 2.2 Project Subcontract Agreement, but FEDCON’s plan to implement the change or arrive at the methodology to compensate GLF was unclear. 591 At no point between January of 2016 and May 27, 2016, which was the termination date of the 2.2 Project Subcontract Agreement, did FEDCON 586 Id. Testimony of Francesco Senis, Doc. 236 at 99:13–25, 100:1–24. 588 Doc. 217-28 at 1–3. 589 Id. 590 Testimony of Francesco Senis, Doc. 236 at 103:17–25, 104:1–15. 591 Id. at 105:13–18. 587 83 Case 8:17-cv-01932-CEH-AAS Document 262 Filed 01/28/21 Page 84 of 192 PageID 44888 identify a methodology for compensating GLF for the impacts resulting from FEDCON’s unilateral changes. 592 223. On January 7, 2016, Jeff Falati advised FEDCON that, as far as he was concerned, FEDCON still did not have a “definitive plan for completing construction in work front 2 yet.”593 FEDCON ultimately decided to use the access plan utilizing K Street inside the Chevron plant and this plan was discussed during a meeting on February 3, 2016, which representatives of GLF, FEDCON, and the Corps attended. 594 GLF raised several concerns during the meeting, such as the liability posed to GLF with working within a petrochemical plant and the lack of details regarding how the access plan would be implemented. 595 GLF also raised issues regarding delivery of the pipe pile materials from inside the Chevron plant, as well as the other materials being delivered by FEDCON. 596 The minutes from the meeting demonstrate the Corps still denied the existence of a differing site condition in this area. 597 Further, the Corps did not have any concerns about GLF working within the Chevron plant because FEDCON had “obtained a private agreement” with Chevron. 598 The Corps emphasized that this plan required “a lot of communication” between FEDCON and GLF to be successful. 599 GLF also did not have a copy of the purported agreement between FEDCON and Chevron. 600 On February 4, 2016, GLF issued Request for Information No. 20, setting forth a list of issues and questions in relation to the proposed access plan. 601 224. On February 10, 2016, FEDCON sent an access plan to GLF, describing it as 592 Id. at 105:13–21. Doc. 219-963 at 1. 594 See Doc. 219-754 at 3–5; Testimony of Francesco Senis, Doc. 236 at 107:17–20; Doc. 217-33 at 2. 595 Testimony of Francesco Senis, Doc. 236 at 108:3–14. 596 Doc. 219-794 at 3–5. 597 Id. at 5. 598 Id. 599 Id. 600 Id. at 4. 601 Doc. 217-33 at 1–6. 593 84 Case 8:17-cv-01932-CEH-AAS Document 262 Filed 01/28/21 Page 85 of 192 PageID 44889 “FEDCON’s Access Plan proceeding from Monolith 72 thr[ough] Monolith 118.” 602 The access plan, entitled “Access Plan 3 February 2016,” provided, under the “Notes” subsection of the “CHEVRON ACCESS ROAD” section, that an engineer would be “engaged to provide information in relation to the design and construction of the work platform in areas where the platform has less than a 3:1 slope at the fence line and the platform is less than 30 linear feet wide.” 603 The details on plan sheet C-301 also required the slope of the embankment material from elevation 11 to the elevation of the adjacent native ground where the access road would be located to have a 3:1 slope, which FEDCON provided to GLF for most areas of the 2.2 Project.604 Additionally, Jeff Falati referenced the 3:1 slope inversely as a “1:3” slope from “the edge of the road at elevation 11 to the natural ground at elevation 6” in an April 22, 2016 e-mail to FEDCON. 605 During trial, Ferguson unpersuasively asserted that the reference to the 3:1 slope in FEDCON’s access plan was a “typo” and that Falati could have been looking at “different drawings.” 606 When asked about this language during trial, Francesco Senis testified that FEDCON’s introduction of a work platform without an adjacent access road resulted in “an embankment that is just a volume of dirt that is not more constrained and contained laterally by the access road,” thereby raising questions as to how, if at all, the stability of the embankment was being addressed. 607 225. The access plan contemplated using K Street, the street inside the Chevron facility that ran parallel to the levee from baseline station 34+71 to baseline station 62+00, for delivery of pipe piles, sheet piles, and rebar for portions of the work. 608 The plan listed the remaining work 602 Doc. 217-178 at 1. Id. at 2–3. 604 Doc. 217-204 at 1; Testimony of Lorenzo Ellis, Doc. 240 at 114:4–15. 605 Doc. 219-825 at 1. 606 Testimony of Mark Ferguson, Doc. 234 at 3:11–14. 607 Testimony of Francesco Senis, Doc. 236 at 109:1–12. 608 Doc. 217-178 at 2–3. 603 85 Case 8:17-cv-01932-CEH-AAS Document 262 Filed 01/28/21 Page 86 of 192 PageID 44890 as: the Chevron Access Road; work front one (Monolith 035 through Monolith 044); work front two (Monolith M072 through Monolith 095); and work front three (Monolith 118 through Monolith 096). 609 226. On February 11, 2016, following its review of the proposed access plan, GLF wrote to FEDCON, in which GLF: (1) advised that the access plan constituted merely a “narrative” of FEDCON’s method for proceeding with the work south of Station 490+00 and failed to provide the “requisite engineering data, analysis, calculations, construction schedule, and Chevron Agreement” for GLF to evaluate the plan for safety, risk analysis, feasibility, and additional costs and impact; (2) suggested that FEDCON pursue the work under the 2.2 Project Subcontract Agreement’s terms, in light of the Corps’ refusal to acknowledge the differing site condition and a lack of supporting documentation; (3) provided assurances that the work south of Station 490+00 could be installed without use of K Street or exposure of GLF’s personnel and resources to potential hazards beyond the scope of GLF’s work; and (4) offered FEDCON the use of GLF’s engineering department to develop a plan for pursuing the work, if FEDCON did not have the capacity to develop and implement a plan within the project limits, in exchange for GLF receiving a “change order for developing such a plan along with reimbursement of the cost of any resulting impacts beyond our original scope of work, and that the plan be implemented by FEDCON.” 610 227. On February 12, 2016, FEDCON responded that work front two was “prepared and ready for the work to commence immediately,” as the temporary access road had been “upgraded” to facilitate access, the area was “appropriately graded,” and the levee was “degraded from Monolith 072 through Monolith 080.” 611 FEDCON represented that the work front did not 609 Id. Id. at 5. 611 Doc. 222-26 at 1. 610 86 Case 8:17-cv-01932-CEH-AAS Document 262 Filed 01/28/21 Page 87 of 192 PageID 44891 require access through Chevron, no additional engineering was required, and the “requirements to work in the area” had not changed “since the project began.” 612 FEDCON accordingly directed GLF to mobilize and begin performing immediately, advising that the failure to commence the work timely would result in a default under the 2.2 Project Subcontract Agreement. 613 228. On February 16, 2016, FEDCON inquired as to GLF’s intention regarding resuming at work front two. 614 That same day, GLF emphasized to FEDCON that the 30-foot-wide work platform and adjacent 12-foot-wide work access road were not available on work front two, thereby resulting in work front two work remaining on hold. 615 GLF advised that it would not mobilize resources until FEDCON provided the temporary structures called for in the 2.2 Project Subcontract Agreement. 616 GLF also highlighted that it had not received an updated, approved schedule addressing the adjusted plan for the work. 617 As of the date of this letter, FEDCON had not issued an engineering plan or put into place an access road or a work platform for the remaining work on work front two. 618 229. FEDCON responded on February 17, 2016, by reiterating that resuming work at work front two did not require access through the Chevron plant and emphasizing that “the requirements to work in the area have not changed.” 619 FEDCON advised GLF that it was providing GLF with “seventy-two hour written notice and curative period pursuant to Paragraph 8.A of the [2.2 Project] Subcontract Agreement to cure the default by mobilizing and 612 Id. Id. 614 Doc. 222-31 at 1. 615 Doc. 216-218 at 2. 616 Id. 617 Id. 618 Testimony of Francesco Senis, Doc. 236 at 111:12–18; Testimony of David Boland, Doc. 233 at 103:6–25, 104:1– 5. 619 Doc. 222-36 at 1. 613 87 Case 8:17-cv-01932-CEH-AAS Document 262 Filed 01/28/21 Page 88 of 192 PageID 44892 recommencing the work at work front two.” 620 According to FEDCON, failure to cure this default would result in FEDCON exercising remedies under Paragraph 8.A of the 2.2 Project Subcontract Agreement. 621 230. In response to this notice, GLF agreed that the work on work front two did not involve “access through the Chevron plant,” but reiterated FEDCON’s failure to address the contractually required predecessor activities, explaining that the lack of access prevented GLF from proceeding. 622 GLF described the plan as “incomplete” and “unworkable.” 623 As such, GLF advised that the cure notice was “misplaced” and requested notification of a “plan to have the work platform and access/haul road constructed” so that it could proceed accordingly. 624 231. More letters followed. In its response to GLF’s February 16, 2016 letter, FEDCON disputed GLF’s assertion that no access existed to facilitate the work at work front two, claiming that, because the Chevron pipe bridges limited the available width to place the work platform and temporary access road, the temporary access road extended “to the work front” and would be “advanced as the work front move[d] forward.” 625 FEDCON further claimed that “[t]his approach was discussed with, and agreed to, by GLF’s project site management earlier last year prior to the first high river event” and that “[s]imilar conditions existed from Monoliths M001 to M008 and Monoliths M061 to M072 where the limited available width of the protected side of the levee required that the temporary access road extend to the work front and then move in the same direction as the work front,” which FEDCON claimed that GLF performed “without any issues.”626 232. A February 29, 2016 letter from FEDCON to GLF, which advised that “GLF’s 620 Id. Id. 622 Doc. 217-127 at 2. 623 Id. 624 Id. 625 Doc. 222-42 at 2. 626 Id. 621 88 Case 8:17-cv-01932-CEH-AAS Document 262 Filed 01/28/21 Page 89 of 192 PageID 44893 refusal to prosecute the work at work front two” would result in FEDCON arranging to have a contractor perform the work, copied F&D, GLF’s surety. 627 233. On February 29, 2016, twenty-six days after the February 3, 2016 meeting, Mr. Falati contacted FEDCON regarding the status of the access plan for work front two. 628 As of the end of February of 2016, there still was not a final approved plan. 629 Mr. Falati acknowledged that GLF was performing work at work front 1 on the 2.2 Project, which GLF had been doing since the end of the high river restriction. 630 234. During a visit to the 2.2 project in February of 2016, Mr. Senis and Mr. Ellis measured the width of the work platform at Monolith 076, discovering that it was less than 30 feet wide from the centerline of the sheets, and the 2.2 Project Subcontract Agreement required the “approximately” 30 feet. 631 Senis also did not observe any compaction, either. 632 Ellis also measured the work platform at Monolith 076 in the spring of 2016. 633 Ellis testified that, on both of these occasions, the width of the work platform was 28.2 feet. 634 235. On March 4, 2016, GLF advised FEDCON that it had consistently maintained that FEDCON’s change in the access to GLF’s work required FEDCON to issue a change order per Paragraph 10.A of the 2.2 Project Subcontract Agreement. 635 GLF claimed that the additional cost and time that would result from the change could not be determined at that time. 636 GLF explained that it was prepared to proceed with the changed work and was not refusing to perform the work 627 Doc. 222-47 at 3. Doc. 219-968 at 1. 629 Testimony of Mark Ferguson, Doc. 234 at 98:9–11. 630 Id. at 97:22–25, 98:1–4. 631 Testimony of Francesco Senis, Doc. 236 at 114:7–25, 115:1. 632 Id. at 115:2–6. 633 Testimony of Lorenzo Ellis, Doc. 241 at 57:16–25, 58:1–4. 634 Id. at 58:12–17. 635 Doc. 217-129 at 2. 636 Id. 628 89 Case 8:17-cv-01932-CEH-AAS Document 262 Filed 01/28/21 Page 90 of 192 PageID 44894 at work front two, but instead was awaiting receipt of a written order under the 2.2 Project Subcontract Agreement. 637 Senis testified that, through this letter, GLF did not insist upon a change order for a specific dollar amount. 638 GLF had not received any engineering design or information prior to this point, as FEDCON maintained that engineering was unnecessary. 639 iii. Corps’ Recognition of the Differing Site Condition, FEDCON’s April 11, 2016 Letter, and the First Terracon Report 236. Despite previously denying the existence of a differing site condition at work front two, on April 7, 2016, the Corps acknowledged FEDCON' s claim for differing site conditions behind the Chevron Plant on the 2.2 Project. 640 The Corps labeled this change as “CIN-019.” 641 The Corps requested FEDCON to submit “a proposal detailing the cost and time impacts associated with this drawing discrepancy.” 642 237. Four days later, on April 11, 2016, FEDCON sent correspondence to GLF, informed GLF that the Corps recognized FEDCON's claim that a differing site condition existed behind the Chevron plant. 643 FEDCON requested GLF to furnish FEDCON with GLF’s proposal for CIN-019 by April 19, 2016, which was to include “a detailed, itemized estimate of the cost for the work” and an indication of “any change to [GLF’s] schedule as a result” of CIN-109. 644 238. In the letter, FEDCON provided the following points regarding “the access plan for the work from Monolith 072 south,” as had been “previously provided”: (1) from Monolith 072 to approximately Monolith 085, steel sheet piles, pipe piles, concrete, and 637 Id. Testimony of Francesco Senis, Doc. 236 at 115:19–23. 639 Testimony of David Boland, Doc. 233 at 110: 2–7. 640 Doc. 134 ¶21. 641 Id. 642 Doc. 216-323 at 2. 643 Doc. 134 ¶22. 644 Doc. 217-130 at 2. 638 90 Case 8:17-cv-01932-CEH-AAS Document 262 Filed 01/28/21 Page 91 of 192 PageID 44895 reinforcing steel would be delivered by way of the “temporary access road leading to the work front”; (2) from monolith 085 to approximately Monolith 107, steel sheet piles, pipe piles, and reinforcing steel would be delivered by way of K Street within Chevron, while concrete deliveries would be by way of the temporary access road up to the work front; (3) from Monolith 118 to approximately Monolith 107, steel sheet piles, pipe piles, and reinforcing steel would be delivered by way of K Street within Chevron to an engineering ramp over an existing pipe rack, while concrete deliveries would be by way of the “temporary road easement in accordance with the contract documents and then to the temporary access road adjacent the work platform”; and (4) access to the equipment on the work fronts would be by way of “the temporary access road where it was adjacent to the work platform or by the temporary access road leading to the work platform.” 645 FEDCON highlighted that, while deliveries of steel sheet piling, pipe piling, and reinforcing steel would be made by others, GLF would be required to load the steel pipe piling onto the truck at the lay down area and also unload the sheet piling, pipe piling, and reinforcing steel. 646 Thus, FEDCON would take over responsibility for delivering the steel pipe piling to the work front for GLF to drive. 647 239. FEDCON further advised in the letter that “a minimum 28 foot wide engineered work platform to support the equipment and construction operations” would be provided “where space limitations prevent a 30 foot wide work platform.” 648 FEDCON explained that the letter constituted a notice to proceed and, accordingly, directed GLF to “proceed promptly with the accomplishment of the changed work by recommencing the work of work front two at Monolith M072 in order to ensure the work between Baseline Station 480+00 and 487+00, 645 Id. at 2–3. Id. at 3. 647 Testimony of Rick Batdorf, Doc. 235 at 74:11–20. 648 Doc. 217-130 at 3. 646 91 Case 8:17-cv-01932-CEH-AAS Document 262 Filed 01/28/21 Page 92 of 192 PageID 44896 that is required to be performed outside of hurricane season, is completed prior to 1 June 2016.” 649 240. David Boland testified that FEDCON committed in this letter that it would provide engineering where there was not adequate space to provide a 30-foot-wide work platform. 650 FEDCON informed HDB that the work platform needed to be 30 feet wide to safely accommodate GLF’s cranes. 651 241. On April 20, 2016, in another letter to GLF, David Boland reiterated FEDCON’s “commitment that GLF will be provided a minimum 28 foot wide engineered work platform to support the equipment and construction operations . . . where space limitations prevent a 30 foot wide work platform.” 652 Significantly, FEDCON advised that it was implementing the plan detailed in its April 11, 2016 letter because that plan was “the most cost effective and least impactful solution.” 653 FEDCON advised that an equitable adjustment would be made and a change order would be issued under Paragraph 10 for “any reasonable cost and time impacts that GLF incurs as a result of the [Corps’] acknowledgement of the differing site condition and resulting change to the work.” 654 FEDCON also declared that GLF was in default of the 2.2 Project Subcontract Agreement and stated that the letter constituted GLF’s seventy two hours’ written notice and curative period, per Paragraph 8.A of the 2.2 Project Subcontract Agreement, to cure the default by mobilizing and recommencing the work at work front two. 655 242. FEDCON pursued an engineering analysis. On April 1, 2016, Rick Batdorf exchanged emails with representatives of Terracon Consulting Engineers & Scientists 649 Id. at 3. Testimony of David Boland, Doc. 233 at 133:2–10, at 119:7–17. 651 Testimony of Mark Ferguson, Doc. 234 at 98:18–25, 99:1–7, 22–25, 100:1–3. 652 Doc. 217-132 at 4. 653 Id. 654 Id. 655 Id. at 4–5. 650 92 Case 8:17-cv-01932-CEH-AAS Document 262 Filed 01/28/21 Page 93 of 192 PageID 44897 (“Terracon”), an engineering firm, which addressed Terracon performing a slope stability analysis of the side slope of the work platform in the engineering analysis it was conducting. 656 In his email to Terracon, Batdorf mentioned that the attached drawing showed “the work platform and the 3:1 slope.” 657 FEDCON retained the services of Terracon to perform the engineering work addressed in the February 3, 2016 access plan and the April 11, 2016 letter regarding the provision of a “minimum 28 foot engineered work platform” wherever there was insufficient space for a 30 foot wide platform. 658 The “approximately” 30 foot wide platform that was required under the 2.2 Project Subcontract Agreement also included the 3:1 slope from the elevation of the degraded levee to the adjacent temporary access road or existing ground level in accordance with the detailed included in sheet C-301 of the project plans. 659 243. Terracon issued a memorandum with its engineering recommendations on April 18, 2016 (the “First Terracon Report”) after several communications with FEDCON. 660 The recommendations included the manner in which the work platform was to be constructed wherever there was insufficient space to construct a 30-foot-wide work platform with, according to GLF, a 3:1 slope. 661 244. On April 26, 2016, William Junkin, P.E., an engineer employed by GLF as its vice president of engineering, issued a memorandum (the “First Junkin Memorandum”), which raised various concerns regarding the First Terracon Report’s engineering recommendations for the work platform. 662 The First Junkin Memorandum addressed five points, including global 656 Doc. 219-828 at 1. Id. 658 Testimony of David Boland, Doc. 233 at 120:8–15. 659 Testimony of Lorenzo Ellis, Doc. 240 at 114:4–15, 118:2–16. 660 Docs. 219-762 at 1–2; 219-764 at 1, 3; Testimony of Rick Batdorf, Doc. 235 at 78:5–22. 661 Doc. 219-764 at 3. 662 Testimony of William Junkin, Doc. 239 at 169:4–23. 657 93 Case 8:17-cv-01932-CEH-AAS Document 262 Filed 01/28/21 Page 94 of 192 PageID 44898 stability issues for GLF’s cranes. 663 The First Junkin Memorandum concluded that the First Terracon Report was “not a complete engineered plan as required by the Contract to comply with the EM 385.1 specifications and to ensure the safety of GLF personnel and equipment operations in performing the work on the Project.” 664 245. Junkin testified that the engineering performed by Terracon did not constitute a complete engineered plan and that GLF could not go forward. 665 GLF sent the First Junkin Memorandum to FEDCON on April 27, 2016, 666 and FEDCON sent the First Junkin Memorandum to Terracon on the same day. 667 Also on April 27, 2016, GLF advised FEDCON that GLF could not submit a claim for work that was excluded from the 2.2 Project Subcontract Agreement, as FEDCON had taken the position that GLF had to submit another claim for the access road and work platform. 668 GLF reiterated that, because the work platform and access road in the area of Monolith 072 were not what FEDCON was contractually required to provide, GLF was entitled to, and had to receive, a written change order acknowledging FEDCON’s responsibility for properly compensating GLF in time and money for the changed work. 669 246. On May 2, 2016, David Boland sent a letter to GLF, which responded to issues raised in the First Junkin Memorandum. 670 Boland stated that “it should be noted the purpose of the engineering analysis contained in Terracon’s [First] Report was limited to providing a design of the temporary work platform where there is insufficient space for the 30 foot width and an adequate side slope.” 671 FEDCON directed Terracon to prepare a revised report addressing issues 663 Doc. 219-977 at 2–3. Id. at 3. 665 Testimony of William Junkin, Doc. 239 at 177:6–17. 666 See Doc. 217-133 at 2. 667 Doc. 219-769 at 1. 668 Doc. 217-133 at 2; Testimony of Francesco Senis, Doc. 236 at 122:1–23. 669 Doc. 217-133 at 2. 670 Doc. 216-345 at 2. 671 Id. 664 94 Case 8:17-cv-01932-CEH-AAS Document 262 Filed 01/28/21 Page 95 of 192 PageID 44899 raised in the First Junkin Memorandum. 672 iv. Revised Terracon Report 247. On May 9, 2016, after several further email exchanges between Terracon and Mr. Batdorf, Terracon issued a revised memorandum, dated May 3, 2016 (the “Revised Terracon Report”), which attempted to address issues and concerns raised in the First Junkin Memorandum. 673 The Revised Terracon Report provided four “crane loading configurations” that were “assumed for the analysis of the working pad,” with the “pad” referring to the work platform. 674 These four conditions addressed work platforms that could not be constructed at 30 feet wide and had either a 2:1 slope or a 1.5:1 slope: two conditions addressed a 2:1 slope and the other two addressed a 1.5:1 slope, with the referenced slope being the slope from the edge of the work platform down to the adjacent property. 675 The Revised Terracon Report addressed the stability of the work platform once the cranes were placed thereon. 676 Regarding areas requiring vertical faces and the design of fabric embedment, the Revised Terracon Report included two design conditions based upon Terracon’s review of the elevations and wall highs required. 677 In each condition, the Revised Terracon Report required the slope embankment material installed by FEDCON to be constructed in 6-inch compacted lifts, which would achieve 95% density, and the failure to construct the platform in that manner could result in global stability failure. 678 248. The purpose of each of the four conditions in the Revised Terracon Report was to ensure safe operation of cranes and avoid global stability failure. 679 Junkin concluded that the 672 Testimony of David Boland, Doc. 233 at 124:18–22. Doc. 249-777 at 2. 674 Id.; Testimony of David Boland, Doc. 233 at 125:12–17. 675 Doc. 249-777 at 2; Testimony of Rick Batdorf, Doc. 235 at 82:1–7. 676 Testimony of Rick Batdorf, Doc. 235 at 82:9–13. 677 Doc. 249-777 at 2–3. 678 Id. at 3–5; Testimony of William Junkin, Doc. 239 at 182:17–25, 183:1–25, 184:1–11. 679 Testimony of Rick Batdorf, Doc. 235 at 84:4–22. 673 95 Case 8:17-cv-01932-CEH-AAS Document 262 Filed 01/28/21 Page 96 of 192 PageID 44900 Revised Terracon Report “did not present a complete engineered plan, as required to comply with EM 385.1 and to ensure the safety of the personnel, equipment operations, and performing the work on the project.” 680 249. During trial, David Boland testified that FEDCON did not instruct its surveyor or anyone else to analyze the width of the work platform or degraded levee that had been constructed from Monolith 076 to Monolith 078. 681 He did not personally measure the work platform at Monolith 076. 682 In discussing the width and the basis for his testimony, Mr. Boland referenced a survey that had been performed by GLF and acknowledged that the survey should reasonably depict the width of the platform. 683 250. GLF had a survey prepared of the existing work platforms that had been constructed by FEDCON through HDB from Monoliths 076 through 078 —the space between the pipe bridges—by Chustz Surveying, Inc. on December 18, 2015. 684 The December 18, 2015 survey of the work platform at Monolith 076 reflects that the outer edge of the work platform was 28.2 feet from 10’ off of the centerline of the sheet pile wall at one measured point, or 1.8 feet short of the required 30-foot width, and 28.7 feet at another measured point, or 1.3 feet short of the required 30-foot width. 685 Based on the Chustz survey, the 28.2 foot and 28.7 foot dimensions of the work platform at Monolith 076 were dimensions that required engineering and construction in accordance with the Revised Terracon Report. FEDCON did not have a survey prepared in the area of Monolith 076 to Monolith 078. 686 251. Mr. Junkin opined that the work platform needed to be fully engineered if it was 680 Testimony of William Junkin, Doc. 239 at 191:4–15. Testimony of David Boland, Doc. 233 at 133:16–20. 682 Id. at 130:15–25, 131:1. 683 Id. at 133:16–25, 134:1–4. 684 Doc. 219-1085 at 1–3; Testimony of Rick Batdorf, Doc. 235 at 77:23–25, 78:1–3. 685 Testimony of Robert Benoit, Doc. 238 at 72:19–25, 73:1–25, 74:1–4. 686 Testimony of Rick Batdorf, Doc. 235 at 77:7–22. 681 96 Case 8:17-cv-01932-CEH-AAS Document 262 Filed 01/28/21 Page 97 of 192 PageID 44901 less than 30 feet wide and that GLF’s employees should not have performed work on a platform less than thirty feet in width if that platform was not engineered. 687 Mr. Junkin also opined that the information included in the Revised Terracon Report regarding the 6-inch compacted lifts of fill to 95% density was intended for the entity that would be constructing the work platform, which was HDB, and the failure to have a “clear understanding” regarding the requirements for this compacted fill could lead to global stability failure. 688 252. During trial, Junkin was shown a cross-section drawing of the area of Monolith 073 to Monolith 079, prepared by Thomas Coyle, a GLF draftsman, to Barry Barnes, a GLF surveyor, from September of 2015, on which Junkin was copied. 689 The cross-section depicted a 40-foot work platform for this area. 690 When asked whether this drawing depicted that a 30-foot platform could be constructed under the pipe bridges, Junkin replied that this document was not prepared at his direction, he did not know the purpose of the illustration, and that it did not constitute a survey. 691 253. In response to the Revised Terracon Report, Junkin prepared another response memorandum (the “Second Junkin Memorandum”), which was in “final draft” form on May 21, 2016, when he sent the document via e-mail to Francesco Senis. 692 Upon his receipt of this draft of the Second Junkin Memorandum, Senis replied that he was “inclined to hold tight” to the report and advise FEDCON that GLF had concerns regarding the loading conditions and proposed technical solutions in the Revised Terracon Report. 693 Senis also wanted to ask FEDCON to share 687 Testimony of William Junkin, Doc. 239 at 192:23–25, 193:1–9. See id. at 182:17–25, 183:1–25, 184:1–11. 689 Id. at 213:24–25, 214:1–18. 690 Doc. 216-253 at 2. 691 Testimony of William Junkin, Doc. 239 at 215:25, 216:1–20, 223:1–16, 226:3–7. 692 Doc. 222-129 at 1. 693 Id. 688 97 Case 8:17-cv-01932-CEH-AAS Document 262 Filed 01/28/21 Page 98 of 192 PageID 44902 a plan view and cross section of the proposed temporary structures with GLF. 694 Ultimately, the Second Junkin Memorandum was not issued to FEDCON until June 1, 2016, after termination of the 2.2 Project Subcontract Agreement. 695 254. FEDCON never provided HDB with either its April 11, 2016 letter or the Revised Terracon Report, even though HDB served as FEDCON’s site work subcontractor responsible for constructing the work platform. 696 Although Mr. Harrison recalled discussions regarding limiting the size of the work platform, he did not recall any discussion regarding an engineered work platform. 697 FEDCON never provided any direction to HDB to construct any of the work platforms or the stabilized slope portions using 6-inch lifts of compacted fill compacted to 95% density in accordance with the Revised Terracon Report. 698 v. Change Order No. 15 255. On May 16, 2016, FEDCON sent a letter to GLF, which purported to enclose a change order—Change Order No. 15—to the 2.2 Project Subcontract Agreement. 699 In the letter, FEDCON: (i) enclosed Change Order No. 15 for the changed work, “[n]otwithstanding that FEDCON . . . had previously provided a written order to GLF to perform the work relating to accessing the work from Monolith 072 south” and FEDCON’s position that it was not required to provide a change order; (ii) advised GLF that it would need to commence the work at Monolith 076, the first monolith outside the hurricane restricted area, since GLF had failed to commence the work at Monolith 072 prior to hurricane season; and (iii) explained that, unless GLF cured its default “by re-commencing and diligently prosecuting the work at the second work front,” 694 Id. Testimony of William Junkin, Doc. 239 at 191:18–23; Doc. 219-978 at 2; Doc. 217-198 at 1, 6–11. 696 Testimony of Alonzo Harrison, Doc. 238 at 54:15–22, 55:21–25, 56:1–2. 697 Id. at 55:6–15. 698 Id. at 56:3–21. 699 Doc. 216-346 at 2. 695 98 Case 8:17-cv-01932-CEH-AAS Document 262 Filed 01/28/21 Page 99 of 192 PageID 44903 FEDCON would complete the work by hiring a replacement contractor and all costs incurred by FEDCON as a result of GLF’s default would be charged to GLF and its surety. 700 256. As discussed above, GLF had consistently taken the position that the changes in access and work platform were changes to the 2.2 Project Subcontract Agreement’s requirements that necessitated the issuance of a change order acknowledging the changes, even though neither the additional time nor cost resulting from the change could be determined. FEDCON initially refused to issue a change order, but ultimately acknowledged that the changes to the access road and work platform were changes to GLF’s 2.2 Subcontract. 701 David Boland testified that this letter advised GLF to proceed with the work at Monolith 076 to cure GLF’s alleged default.702 Francesco Senis likewise testified that he understood this letter as an instruction for GLF to go to work at Monolith 076. 703 257. Francesco Senis testified that GLF did not receive Change Order No. 15 on May 16, 2016, despite the date of the accompanying letter, because FEDCON forgot to send it.704 Instead, GLF received it a few days later. 705 GLF advised on May 24, 2016, that it had not received any change order. 706 258. Under Change Order No. 15, “the materials and equipment to be furnished and the work to be performed by” GLF was GLF’s completion of the work from “Wall Baseline Station 41+50 south utilizing the plan for access described in the Contractor’s letter dated 11 April 2016.” 707 Change Order No. 15 also provided that FEDCON would provide the temporary work 700 Id. at 2–3. Testimony of David Boland, Doc. 233 at 140:24–25, 141:1–13. 702 Id. at 136:1–5. 703 Testimony of Francesco Senis, Doc. 238 at 151:22–25. 704 Testimony of Francesco Senis, Doc. 236 at 132:21–25, 133:1. 705 Id. 706 Doc. 217-196 at 3. 707 Doc. 216-346 at 4. 701 99 Case 8:17-cv-01932-CEH-AAS Document 262 Filed 01/28/21 Page 100 of 192 PageID 44904 platform from approximately Wall Baseline Station 51+50 to 53+50, which corresponded with Monoliths 090 to 092, in accordance with the design set forth in Terracon’s condition 6. 708 Change Order No. 15 also indicated a change to the 2.2 Project Subcontract Agreement, but FEDCON issued the Change Order for $0.00, as represented by the “Total Change Order Amount” being listed as $0.00, and did not include a methodology under which FEDCON would compensate GLF for either additional money or time resulting from the change, other than to submit a Request for Equitable Adjustment. 709 By signing Change Order No. 15, GLF would agree that the Change Order fully compensated GLF for the described changes and “any and all claims” for, among other things, additional time, delay, impact, or disruption incurred by GLF as a result of Change Order No. 15 individually, and the cumulative impact collectively, with prior change orders. 710 vi. Notice of Default and GLF’s Response 259. The parties have stipulated that, on or about May 23, 2016, FEDCON issued a notice of default (the “Notice of Default”) to GLF and directed GLF to submit “a plan setting forth how it intended to proceed with work from Monolith 076 south” on the 2.2 Project.711 The Notice of Default was FEDCON’s “final notice of default” to GLF. 712 Specifically, FEDCON advised that GLF continued “to remain in default under the terms of [the 2.2 Project] Subcontract Agreement for failing to recommence the work south of Monolith 072.” 713 FEDCON advised that this failure to recommence the work at Monolith 072 had resulted in the work between Monolith 072 and Monolith 075 “being delayed until after the hurricane season ends on 30 November 2016 which has caused a six month delay to the Project Schedule.” 714 FEDCON advised that it would 708 Id.; Testimony of Francesco Senis, Doc. 238 at 6:15–20. Doc. 216-346 at 4; Testimony of Francesco Senis, Doc. 236 at 133:17–25, 134:1–8. 710 Doc. 216-346 at 4. 711 Doc. 134 ¶23. 712 Testimony of David Boland, Doc. 233 at 136:6–12. 713 Doc. 219-883 at 2. 714 Id. 709 100 Case 8:17-cv-01932-CEH-AAS Document 262 Filed 01/28/21 Page 101 of 192 PageID 44905 declare the 2.2 Project to be materially breached unless GLF cured its default within 72 hours of receipt of the Notice of Default “by providing a written plan demonstrating, and committing to, the recommencement of the work at the second work front beginning at Monolith 076 at the earliest reasonable time . . . .” 715 Thus, FEDCON was directing GLF to be prepared to proceed with the work at Monolith 076. FEDCON sent a copy of the Notice of Default to GLF’s surety, F&D. 716 260. Also on May 23, 2016, GLF issued a letter to FEDCON, wherein GLF further expressed concerns regarding the Revised Terracon Report. 717 As such, GLF requested “typical sections, plan views, and cross-sections at minimum 50’ intervals of the proposed temporary structures for the length of the remaining Work.” 718 261. The Notice of Default did not offer any specifics regarding the written plan that FEDCON had requested from GLF. 719 David Boland, the author of the Notice of Default, testified that he was looking for a “commitment.” 720 The “written plan” sought in the Notice of Default was a written commitment that GLF would proceed with the work at Monolith 076 at the earliest reasonable time, recognizing that GLF would have to completely mobilize “a full suite of equipment for that work front as well as the work force for it.” 721 He testified that he did not want to dictate a specific date and, if it had taken GLF another three weeks to mobilize, he could have “live[d] with that.” 722 262. On May 24, 2016, GLF responded to the Notice of Default. 723 GLF replied that the work at Monolith 072 constituted part of the work affected by the changed condition of which 715 Id. See also Testimony of David Boland, Doc. 233 at 137:10–13. Doc. 219-883 at 3. 717 Doc. 217-135 at 2. 718 Id. 719 Testimony of David Boland, Doc. 233 at 137:24–25, 138:1–5. 720 Id. at 138:6–10. 721 Id. at 138:18–23. 722 Id. at 138:6–17. 723 Doc. 134 ¶24. 716 101 Case 8:17-cv-01932-CEH-AAS Document 262 Filed 01/28/21 Page 102 of 192 PageID 44906 FEDCON had notified the Corps and GLF. 724 GLF asserted that FEDCON had yet to provide GLF with “an acceptable engineering plan” demonstrating how FEDCON intended to address the changed condition, which impacted GLF’s ability to perform the work at the specified locations.725 GLF emphasized that it was “ready, willing and able to re-commence and complete all remaining work on the project just as soon as an acceptable engineered plan for the performance of the work that is the subject of the changed condition is issued, and an appropriate change order for same, is received.” 726 GLF had not received Change Order No. 15 prior to the issuance of this letter. As previously mentioned, the levee at Monolith 076 through 079 was degraded by HDB on December 4, 2015, which was prior to FEDCON’s commitment for a 28 foot wide engineered work platform in the areas where space limitations prevented a 30 foot wide work platform and the Revised Terracon Report. 727 263. FEDCON had not undertaken to perform any additional work on the work platform at Monolith 076 subsequent to the issuance of its April 11, 2016 letter, the First Terracon Report, and the Revised Terracon Report by May 27, 2016. 728 Indeed, between April 11, 2016 and May 27, 2016, neither the work platform at Monolith 076 nor any of the monoliths south thereof had been constructed in accordance with the recommendations by Terracon. 729 As such, the side slope of the work platform at Monolith 076 had not been constructed in accordance with any of the conditions included in the Revised Terracon Report where there was less than 30 feet available plus the 3:1 slope. 730 William Junkin of GLF would not have given his approval or recommendation to GLF to recommence the work on the work platform at Monolith 076 through 724 Doc. 217-136 at 3. Id. at 2. 726 Id. 727 Testimony of Lorenzo Ellis, Doc. 241 at 57:20–25, 58:1–4. 728 Testimony of Francesco Senis, Doc. 236 at 129:12–19; Testimony of Lorenzo Ellis, Doc. 241 at 60:4–10. 729 Testimony of Lorenzo Ellis, Doc. 241 at 60:4–10. 730 Id.; Testimony of Lin Heath, Doc. 240 at 13:21–25, 14:1–4. 725 102 Case 8:17-cv-01932-CEH-AAS Document 262 Filed 01/28/21 Page 103 of 192 PageID 44907 Monolith 078 based on his observations on June 21, 2016. 731 The Chustz survey of the work platform at Monolith M076 prepared on December 18, 2015, demonstrated that the outer edge of the work platform was 28.2 feet from 10’ off the centerline of the sheet pile and 28.7 feet at another measured point. As a result, the work platform at Monolith 076 was not a “minimum 28 foot wide engineered work platform,” as was called for in FEDCON’s April 11, 2016 letter to GLF. This same situation existed at the end of 2015 and throughout 2016 at the points in time when FEDCON sent letters to GLF directing GLF to proceed with the work front two work. 732 264. Notwithstanding the fact that FEDCON had issued a change order to GLF which was supposed to address additional time and compensation resulting from the changes regarding the temporary access road and work platforms from the requirements of the 2.2 Project Subcontract Agreement, and notwithstanding the fact that the work platform at Monolith 076 had not been constructed in accordance with the Revised Terracon Report and FEDCON’s April 11, 2016 letter, FEDCON responded on May 25, 2016, that it would terminate the 2.2 Project Subcontract Agreement, unless GLF committed in writing to “recommence the work at the second work front beginning at Monolith 076 at the earliest reasonable time.” 733 265. FEDCON also advised that, if GLF was truly willing to complete the remaining work, then GLF “should cure its default by positively responding to FEDCON’s letter of 23 May 2016 prior to the close of business tomorrow.” 734 David Boland testified that FEDCON was not looking for GLF to return to work on Thursday or Friday of that week, but instead, just a written commitment from GLF that it would return to work at Monolith 076 somewhere between three 731 Testimony of William Junkin, Doc. 239 at 197:17–25. Testimony of Lorenzo Ellis, Doc. 241 at 57:20–25, 58:1–4; Testimony of David Boland, Doc. 233 at 133:16–25. 733 Doc. 219-780 at 2. 734 Id. 732 103 Case 8:17-cv-01932-CEH-AAS Document 262 Filed 01/28/21 Page 104 of 192 PageID 44908 and six weeks. 735 GLF understood that it needed to respond by the following day. 736 This May 25, 2016 letter from FEDCON did not provide any additional information regarding the necessary or required contents of FEDCON’s requested written plan beyond the “commitment” to which Mr. Boland testified, nor did it indicate when the earliest reasonable time would be to perform the work. 737 266. GLF responded to the May 25, 2016 letter on May 26, 2016, in which GLF: (1) emphasized that FEDCON had not provided a plan that could be implemented to allow the safe performance of the work or otherwise advised when it would provide such a plan; and (2) confirmed that GLF would recommence the work at “the earliest reasonable time” conditioned upon FEDCON “fulfilling all of its contractual responsibilities that are conditions precedent to GLF recommencing the work.” 738 GLF also rejected Change Order No. 15, explaining that the change order was “improper” because it failed to address “the terms and conditions for compensation to GLF to the additional costs” that GLF would incur from the changed conditions. 739 GLF advised that there would “clearly be additional costs incurred” and that GLF needed a plan that reflected FEDCON’s intention to address the changed conditions, which would then allow the parties to attempt to agree upon a price for the additional and changed work. 740 GLF also advised the change order needed to address the price increase and time impact resulting from the change. 741 267. Even though Change Order No. 15 provided for GLF to submit a REA, it acknowledged GLF’s entitlement to a time extension and additional compensation, which were 735 Testimony of David Boland, Doc. 233 at 143:14–24. Testimony of Francesco Senis, Doc. 236 at 137:6–10. 737 Doc. 219-780 at 1–2; Testimony of Francesco Senis, Doc. 236 at 137:6–17. 738 Doc. 217-197 at 3. 739 Id. 740 Id. 741 Id. 736 104 Case 8:17-cv-01932-CEH-AAS Document 262 Filed 01/28/21 Page 105 of 192 PageID 44909 rights that GLF had reserved pursuant to its notice to FEDCON on June 18, 2015, after FEDCON first notified GLF of the impact to access and changes to the temporary access plan and work platforms on work front two on the 2.2 Project. 268. GLF also informed FEDCON that it was prepared to finish the 2.2 Project “under a properly in-house engineered plan,” conditioned upon FEDCON’s agreement to pay GLF for the extra costs through a “properly issued change order.” 742 GLF proposed “a Monthly fee of $500K, with a cap on the overruns not to exceed $5 million above the amount currently available in the schedule of values.” 743 269. Also on May 26, 2016, a representative of F&D sent a letter to FEDCON acknowledging receipt of the Notice of Default and requesting further information for investigative purposes, thereby demonstrating that F&D had commenced an investigation. 744 vii. Notice of Termination and GLF’s Response 270. On May 27, 2016, FEDCON terminated the 2.2 Project Subcontract Agreement (the “Notice of Termination”). 745 FEDCON sent a copy of the Notice of Termination to F&D. 746 271. The Notice of Termination provided that, despite “repeated directives” from FEDCON, GLF had failed to “recommence the work south of Monolith 071.” 747 FEDCON described this refusal as a “material breach” of the 2.2 Project Subcontract Agreement that has resulted in “significant delay” to the 2.2 Project. 748 FEDCON countered that, despite GLF’s claim of being ready to perform, GLF had no intention of doing so “absent FEDCON’s acquiescence to 742 Id. at 4. Id. 744 Docs. 216-347 at 1–2; 134 ¶25. See Doc. 216-348 at 1 (“As you know from my May 26, 2016, letter, the Surety has begun its investigation into this matter.”). 745 Doc. 134 ¶26; 217-194 at 1–2. 746 Doc. 217-194 at 2. 747 Id. at 1. 748 Id. 743 105 Case 8:17-cv-01932-CEH-AAS Document 262 Filed 01/28/21 Page 106 of 192 PageID 44910 GLF’s demand to be immediately paid for its yet undetermined and unsupported costs of addressing the changed work conditions due to the differing site condition.” 749 FEDCON advised that the terms of the 2.2 Project Subcontract Agreement did not require FEDCON to submit to this demand and that Paragraph 10 of the 2.2 Project Subcontract Agreement expressly stated GLF’s obligation “where the parties do not agree on a price to perform a change.” 750 On this basis, FEDCON described GLF’s refusal to recommence work without a change order containing a price acceptable to GLF as a “further material breach” of the 2.2 Project Subcontract Agreement.751 Finally, FEDCON directed GLF to remove all equipment and personnel from the project site. 752 272. GLF responded to the Notice of Termination on June 1, 2016, characterizing FEDCON’s termination of the 2.2 Project Subcontract Agreement as “improper.” 753 GLF’s response addressed several issues pertinent to the Court’s analysis. First, GLF highlighted that: (1) the Notice of Default requested GLF to cure its default within 72 hours by providing GLF’s written plan demonstrating, and committing to, the recommencement of the work at the second work front beginning at Monolith 076 at the “earliest reasonable time;” and (2) FEDCON’s May 25, 2016 letter likewise stated that FEDCON would exercise its termination rights, unless GLF committed in writing to recommencing the work at the second work front beginning at Monolith 076 at the “earliest reasonable time.” 754 GLF argued that its May 26, 2016 letter constituted GLF’s provision of the “exact written commitment” that FEDCON requested, “albeit conditioned upon Fedcon fulfilling all of its contractual responsibilities.” 755 273. Next, GLF took issue with FEDCON’s basis for termination. GLF highlighted 749 Id. Id. 751 Id. 752 Id. at 2. 753 Doc. 217-198 at 2. 754 Id. (internal quotation marks omitted). 755 Id. (internal quotation marks omitted). 750 106 Case 8:17-cv-01932-CEH-AAS Document 262 Filed 01/28/21 Page 107 of 192 PageID 44911 that, although the Notice of Termination stated that GLF had failed and refused to recommence the work “south of Monolith 071,” neither the Notice of Default nor FEDCON’s May 25, 2016 letter had demanded that GLF recommence the work at Monolith 072 within 72 hours of GLF’s receipt of FEDCON’s notice. 756 Rather, FEDCON had demanded that GLF provide written confirmation of its commitment to recommence the work at Monolith 076 at the earliest reasonable time. GLF also emphasized that the work in the area of Monolith 072 was not ready for GLF to perform because FEDCON had not completed the work platform and access road. 757 274. Further, GLF reiterated the issues with FEDCON’s plan for the impacted work on work front two of the 2.2 Project. 758 GLF enclosed a copy of the Second Junkin Memorandum, advising that the Memorandum addressed the problems and issues with FEDCON’s plan. 759 GLF asserted that, even if the Revised Terracon Report was completely acceptable, such acceptability was immaterial for purposes of termination since FEDCON had not implemented any portion of the plan, which was required for GLF to proceed with the work at issue. 760 On this basis, GLF opined that the termination of the 2.2 Project Subcontract Agreement based upon GLF’s alleged failure to proceed with work that was not yet ready constituted a wrongful termination. 761 275. GLF also criticized the purpose and effect of FEDCON’s proposed plan as being driven exclusively by its goal to minimize costs. 762 GLF explained that money constituted the only obstacle to FEDCON’s provision of “adequate structures” under the 2.2 Project Subcontract Agreement. 763 Contending that the alleged encroachments do not prevent or preclude the 756 Id. (internal quotation marks omitted). Id. 758 Id. at 3. 759 Id. at 3, 6–11. 760 Id. at 3–4. 761 Id. at 4. 762 Id. 763 Id. 757 107 Case 8:17-cv-01932-CEH-AAS Document 262 Filed 01/28/21 Page 108 of 192 PageID 44912 construction of the temporary structures under the 2.2 Project Subcontract Agreement, but instead required such structures to be engineered, GLF asserted that this portion of the 2.2 Project could be built “exactly as originally planned, at no extra cost for GLF, albeit at greater expense to FEDCON.” 764 GLF claimed that FEDCON’s chosen course of action constituted the most costeffective option for FEDCON, but resulted in FEDCON “attempting to force GLF to bear the brunt of the expense and submit a claim for equitable adjustment after-the-fact as opposed to paying of the changed work” as it progressed. 765 Additionally, GLF claimed the proposed plan changed the arrangement from a lump sum arrangement to a time and equipment arrangement, in which GLF would lose “control,” as its role would morph into “a supplier of specialized equipment and personnel, operating at the directions of Fedcon,” thereby representing a change to the entire scope and form of the 2.2 Project Subcontract Agreement. 766 276. Finally, GLF reiterated that it remained “ready, willing, and able to proceed” with the work at work front two “at the earliest reasonable time based upon either its own in-house engineered plan for which Fedcon agrees to compensate GLF, or pursuant to a properly engineered plan issued by Fedcon.” 767 277. FEDCON responded on June 6, 2016. 768 Therein, FEDCON: (1) reiterated that GLF had failed to provide “a written plan demonstrating, and committing to, the recommencement of the work at the second work front beginning at Monolith 076 at the earliest reasonable time”; (2) argued that the 2.2 Project Subcontract Agreement did not require the issuance of a change order for GLF to perform the work; and (3) countered that the “work south of Monolith 071,” as 764 Id. Id. 766 Id. 767 Id. (original emphasis removed). 768 Doc. 222-155 at 1. 765 108 Case 8:17-cv-01932-CEH-AAS Document 262 Filed 01/28/21 Page 109 of 192 PageID 44913 provided in the Notice of Termination, did not differ from the work “beginning at Monolith 076” because the “work south of Monolith 071” included the work “beginning at Monolith 076.” 769 278. FEDCON also pushed back on GLF’s assertion that FEDCON had not yet provided the temporary structures, stating that the levee had been degraded and the work platform had been constructed “through Monolith 080 or approximately 540 feet.” 770 Significantly, FEDCON acknowledged that, as a result of the differing site condition, the temporary access road could not be provided as contemplated under the 2.2 Project Subcontract Agreement and “deliveries for the materials for Monoliths 072 through 085 must be made by way of the work platform as outlined in [the April 11, 2016 letter] that included FEDCON’s access plan for the work from Monolith 072 south.” 771 279. FEDCON also attacked GLF’s assertion that the work required by the Revised Terracon Report remained uncompleted, claiming that the work required by Terracon involved the work platform “from approximately Monolith 089 to Monolith 093,” which could not be performed until GLF completed “at least five additional monoliths of work,” and, according to FEDCON, advancing to Monolith 089 would take GLF “more than a month” and “only then, at that time, could the levee be degraded in that area and the work platform constructed.” 772 As such, FEDCON asserted that the completion of GLF’s work determined when the work required by Terracon would commence. 773 280. Finally, FEDCON provided GLF with “one final opportunity to proceed within the framework expressly provided in Paragraphs 10 and 13” of the 2.2 Project Subcontract 769 Id. at 1–2. (internal quotation marks omitted). Id. at 2. 771 Id. at 3. 772 Id. at 3–4. 773 Id. at 4. 770 109 Case 8:17-cv-01932-CEH-AAS Document 262 Filed 01/28/21 Page 110 of 192 PageID 44914 Agreement “and justify vacation of the termination for default.” 774 Accordingly, FEDCON allowed GLF until 5:00 p.m. on June 9, 2016 “to provide its written commitment to proceed with the physical work on a date certain no later than 20 June 2016 without further qualifications or conditions.” 775 281. On June 9, 2016, Francesco Senis, on behalf of GLF, responded that it was unable to send its answer within FEDCON’s requested time-frame, “[i]n light of the wealth of details and data contained” in FEDCON’s letter. 776 As such, GLF advised that it would provide a response by June 14, 2016. 777 David Boland testified that he did not consider this response sufficient and that Francesco Senis “could have just said that [GLF would] start work on, you know, June 15th or whatever . . . .” 778 282. On June 9, 2016, FEDCON filed a lawsuit against both GLF and F&D in Florida’s Ninth Judicial Circuit Court. 779 283. Additionally, FEDCON had not performed the predecessor work for the low- profile work by degrading the levee under the pipe bridges at Monoliths 075 and 079 to elevation 8 in accordance with the low-profile work plan approved by the Corps at the Low Profile Prep Meeting on March 11, 2015. 780 284. Also as of the May 27, 2016 termination date, FEDCON had not retained the services of any subcontractor to transport the pipe piles to work front two, a responsibility which FEDCON had assumed per its April 11, 2016 access plan. 781 Further, between the April 11, 2016 774 Id. Id. 776 Doc. 222-163 at 1. 777 Id. 778 Testimony of David Boland, Doc. 232 at 170:14–22. 779 Doc. 134 ¶29. 780 Testimony of Lorenzo Ellis, Doc. 241 at 36:9–18. 781 Testimony of Rick Batdorf, Doc. 235 at 76:2–11. 775 110 Case 8:17-cv-01932-CEH-AAS Document 262 Filed 01/28/21 Page 111 of 192 PageID 44915 letter and May 27, 2016, there had not been any deliveries of steel pipe piling to any work front south of Monolith 071. 782 285. On the date of FEDCON’s termination of the 2.2 Project Subcontract Agreement, GLF was performing work at work front 1 on the 2.2 Project. 783 On this date, GLF was either working on both work fronts of the 1.2a Project or had already completed one work front and was in the process of performing work on the second work front. 784 286. On work front one of the 2.2 Project, FEDCON had provided a temporary access road, a work platform, and all of the predecessor work that was required for GLF to perform its work. 785 This was in contrast to work front two of the 2.2 Project, where there was insufficient space. 786 Indeed, on May 17, 2016, FEDCON had notified HDB that the work platforms were “considerably less than 30’ wide,” the tracks of the crane were riding over the edge of the work platform, the crane mats were “extended another 5’ in midair,” and that this situation posed a “very unsafe condition” that needed to be addressed. 787 287. On work front one of the 1.2a Project, FEDCON provided GLF with a temporary access road adjacent to the work platform for a portion of the project. 788 On both work fronts of the 1.2a Project, FEDCON also provided a 30-foot-wide work platform that was 10 feet from the centerline of the sheet piling for both work fronts of the 1.2a Project. 789 GLF completed its work under the 1.2a Project Subcontract Agreement, following FEDCON’s revisions. 790 288. Prior to FEDCON’s termination of the 2.2 Project Subcontract Agreement, GLF 782 Testimony of Lorenzo Ellis, Doc. 241 at 58:24–25, 59:1–4. Id. at 153:8–11; Testimony of Mark Ferguson, Doc. 234 at 102:1–4. 784 Testimony of David Boland, Doc. 233 at 153:22–25, 154:1. 785 Testimony of Mark Ferguson, Doc. 234 at 102:13–25, 103:1–7. 786 Id. at 103:5–7. 787 Doc. 219-970 at 1. 788 Testimony of David Boland, Doc. 233 at 154:2–9. 789 Id. at 154:10–15. 790 Id. at 154:16–25, 155:1. 783 111 Case 8:17-cv-01932-CEH-AAS Document 262 Filed 01/28/21 Page 112 of 192 PageID 44916 had a plan in place to demobilize its equipment following the completion of the work, which involved sending the equipment to the next location in which the equipment would be used.791 This plan had not been put into place, insofar as identifying where the equipment would next be used, when FEDCON terminated the 2.2 Project Subcontract Agreement on May 27, 2016. 792 The Notice of Termination directed GLF to remove all of its equipment from the work front. Demobilization of equipment is typically completed over time, but FEDCON’s termination of the 2.2 Project Subcontract Agreement produced a “scramble” for GLF to demobilize its equipment.793 As a result of having to demobilize all of its equipment and personnel from the 2.2 Project in an accelerated manner due to the termination, GLF “semi broke down” all of its equipment to an interim location approximately one mile from the job site. 794 From this interim location, GLF developed a plan as to where to send the equipment next and finish the demobilization of the equipment. 795 GLF’s initial plan was to demobilize from the job site, not the interim location. 796 289. In an e-mail to the Corps on March 15, 2018, FEDCON quantified the additional time and compensation to which it believed that it was entitled as a result of the differing site condition that impacted the temporary access road and work platforms behind the Chevron plant. 797 FEDCON recognized that “the issues with access through Chevron were undoubtedly” the “driving factor as to when operations could commence at work front two, south of Chevron.”798 FEDCON also recognized that the last of the work necessary for K Street to be put into service was completed on July 20, 2016. 799 FEDCON advised that it would agree to a 224-day time 791 Testimony of Lorenzo Ellis, Doc. 241 at 68:17–24. Id. at 68:25, 69:1–4. 793 Id. 794 Id. at 69:10–25. 795 Id. 796 Id. at 69:23–25. 797 Doc. 216-325 at 1–2. 798 Id. at 1. 799 Id. 792 112 Case 8:17-cv-01932-CEH-AAS Document 262 Filed 01/28/21 Page 113 of 192 PageID 44917 extension, with 213 days of those days constituting compensable days. 800 290. On or about May 3, 2018, the Corps issued a contract modification, Reference No. 40, pursuant to CIN-019, to FEDCON, wherein FEDCON was granted a time extension and additional compensation in relation to the differing site condition at work front two behind Chevron. 801 The parties stipulate that this modification extended the contract completion dates by 224 days and that the revised contract completion date for the 2.2 Project included the 224-day extension. 802 The contract modification granted FEDCON a 224-day extension, 213 days of which were compensable, and increased the contract amount by $1,135,000.00. 803 David Boland agreed that, as far as time extensions, that FEDCON requested from the Corps of which GLF would be the beneficiary, the differing site condition presented a time extension that would inure to the benefit of GLF, as well as FEDCON. 804 To that end, he testified that, had GLF still been on the project at the time the time extension was issued, GLF would have been the beneficiary of that time extension. 805 The period that is included in the time extension received by FEDCON from the Corps for the differing site condition to which GLF was entitled as well, includes the May 27, 2016 date on which GLF was terminated. 806 On the date of termination, FEDCON knew that additional time would be granted by the Corps, but the amount of time was unclear. 807 291. GLF incurred $375,197.30 to demobilize all of the equipment from the 2.2 Project to the interim location, as well as costs for renting the interim storage location. 808 GLF subsequently incurred costs to demobilize its equipment from the interim location to the final 800 Id. Doc. 216-324 at 1–5. 802 Doc. 134 ¶¶32, 33. 803 Doc. 216-324 at 4–5. 804 Testimony of David Boland, Doc. 233 at 77:22–25, 78:1–3. 805 Id. at 78:4–12. 806 Id. at 78:15–19. 807 Id. at 79:24–25, 80:1–10. 808 Doc. 218-781 at 2; Testimony of Lorenzo Ellis, Doc. 241 at 70:1–24, 71:23–25, 72:1–2, 23–25, 73:1–14, 20–24. 801 113 Case 8:17-cv-01932-CEH-AAS Document 262 Filed 01/28/21 Page 114 of 192 PageID 44918 destination. 809 GLF seeks these costs for a period of time spanning from May 29, 2016, to October 1, 2016. 810 Also, the specific, identifiable amount that was to be paid to GLF for reimbursement of demobilization costs and expenses is $880,000.00. 811 At the time of its termination, GLF was unpaid for the work it performed in April of 2016 in the amount of $118,854.78. 812 This amount is represented in GLF’s Application for Payment No. 34, which sought payment for April of 2016. 813 The $118,854.38 unpaid amount in Application for Payment No. 34 had been reviewed and approved by the Corps after removal of an amount for demobilization of pipe driving equipment, and the Corps ultimately paid that amount to FEDCON. 814 viii. F&D’s Response and FEDCON’s Hiring of Replacement Subcontractors 292. Under the terms of the 2.2 Project Subcontract Agreement, GLF, as principal, and F&D, as surety, executed and delivered to FEDCON a payment and performance bond. 293. The 2.2 Project performance bond provided that GLF and F&D were bound to FEDCON in the amount of $10,517.859.50. 815 294. Having received a copy of the Notice of Default, F&D responded on May 26, 2016. In this response, F&D claims counsel Lawrence Kriss advised that FEDCON’s letter lacked “all of the requisite information required in a situation such as this.” 816 As such, to understand “the exact situation under the contract terms,” Kriss requested many materials, such as original and revised job schedules, executed copies of the bonds, and underlying contractual documents. 817 Kriss emphasized that the nature and severity of the performance 809 See id. at 73:25, 74:1–4. Doc. 218-781 at 2. 811 Testimony of Lorenzo Ellis, Doc. 241 at 75:7–25, 76:1–3. 812 Doc. 219-976 at 1; Testimony of Lorenzo Ellis, Doc. 241 at 76:24–25, 77:1–9. 813 Doc. 219-976 at 1. 814 Testimony of Rick Batdorf, Doc. 235 at 89:4–25, 90:1–25, 91:1–4; Docs. 219-827 at 1; 219-975 at 1–2. 815 Doc. 216-351 at 37. 816 Doc. 216-347 at 1. 817 Id. 810 114 Case 8:17-cv-01932-CEH-AAS Document 262 Filed 01/28/21 Page 115 of 192 PageID 44919 issues were unclear from the Notice of Default. 818 Kriss advised that F&D’s actions were taken for investigative purposes only, thereby demonstrating that F&D had commenced an investigation. 819 295. On May 31, 2016, F&D responded to the Notice of Termination, wherein Mr. Kriss acknowledged receipt of the Notice of Termination and reiterated that F&D had begun its investigation of the matter. 820 Kriss also emphasized that a “crucial part of the investigation, necessary to appropriately respond” to FEDCON’s letter was receipt of the information and documentation previously requested by F&D. 821 Kriss requested FEDCON to forward the information and documentation to Ivette Gualdron at the “earliest opportunity.” 822 296. On the same day, David Boland sent numerous documents to F&D in response to F&D’s May 26, 2016 letter, such as executed bonds, the 2.2 Project Subcontract Agreement, contract documents, the project schedule inclusive of updates, and GLF’s letters, as referenced in the Notice of Default. 823 In the letter to F&D, David Boland characterized the basis for FEDCON’s termination of the 2.2 Project Subcontract Agreement as “GLF’s refusal to proceed with the performance of the work that was impacted by a differing site condition which the [Corps] had recognized as a change to the contract.” 824 297. David Boland testified that he telephoned Mr. Kriss “within a few days after the termination” because he “wanted to get a read from [Mr. Kriss] on how F&D was going to proceed on this matter.” 825 Indeed, FEDCON “needed to move forward.” 826 David Boland testified that, 818 Id. Id. 820 Docs. 134 ¶27; 216-348 at 1. 821 Doc. 216-348 at 1. 822 Id. 823 Doc. 222-147 at 2. 824 Doc. 222-147 at 2. 825 Testimony of David Boland, Doc. 232 at 172:6–10, 173:13–16. 826 Id. at 172:11–13. 819 115 Case 8:17-cv-01932-CEH-AAS Document 262 Filed 01/28/21 Page 116 of 192 PageID 44920 during this telephone conversation, Mr. Kriss informed him that, based on a conversation with GLF, F&D “was taking the position that the termination was improper” and, thus, F&D “would not be proceeding.” 827 Mr. Boland admitted that he did not write any letters to Mr. Kriss confirming their conversation, despite writing numerous letters during the course of the 2.2 Project. 828 Further, Mr. Boland initially could not recall any details regarding this purported telephone conversation with Mr. Kriss when he was initially deposed, but recalled “a little bit more clearly” after reviewing “all the documents.” 829 298. F&D did not receive notice of the lawsuit filed in Florida’s Ninth Judicial Circuit Court, in which FEDCON alleged that F&D had not taken any action to cure GLF’s default or recommence the performance of the work, until June 15, 2016. 830 Thus, FEDCON filed the lawsuit after receiving the May 26, 2016 and May 31, 2016 letters from F&D, each of which referenced F&D’s investigation and requested further information. FEDCON did not wait for any follow-up or response from F&D regarding their investigation prior to the lawsuit’s filing. 831 299. On June 11, 2016, before it received notice of the lawsuit on June 15, 2016, F&D acknowledged receipt of FEDCON’s May 31, 2016 letter and accompanying documentation and advised that it was reviewing the documentation and continuing with its investigation of the claim. 832 F&D also requested further documentation from FEDCON necessary for F&D’s investigation. 833 F&D never received a response from FEDCON to this 827 Id. at 172:18–22. Testimony of David Boland, Doc. 233 at 168:24–25, 169:1–23. 829 Id. at 168:24–25, 169:1–9. 830 Doc. 134 ¶29. 831 Testimony of David Boland, Doc. 233 at 173:22–25, 174:1–2. 832 Doc. 217-202 at 1, 3. 833 Id. at 3; Deposition of Ivette Gualdron, Doc. 146 at 61:6–8, 62:25, 63:1–12. Ms. Gualdron’s deposition was introduced into evidence during trial. Doc. 243 at 152:18–25, 153:1–5, 154:1–10. 828 116 Case 8:17-cv-01932-CEH-AAS Document 262 Filed 01/28/21 Page 117 of 192 PageID 44921 June 11 request, which F&D needed in order to perform and complete its investigation and analysis. 834 Ivette Gualdron, surety claims counsel for Zurich American Insurance Company, an affiliated company of F&D, 835 who was involved in F&D’s investigation, testified by deposition that she did not follow-up with FEDCON personnel regarding this request for documents because, given FEDCON’s filing of the state court lawsuit, F&D expected these documents to “come through discovery.” 836 Notably, as this request came more than “a few days after termination,” it would have come after Mr. Boland’s purported conversation with Mr. Kriss. 300. Following FEDCON’s termination of the 2.2 Project Subcontract Agreement, FEDCON divided GLF’s remaining work into three major components and hired replacement contractors to perform those scopes of work: Kirkland Concrete, LLC performed the concrete forming and placing; Bo-Mac Contractors, LTD performed the sheet pile and pipe pile driving; and Anders Construction performed the welding or splicing of the work platforms and welding the tension connectors. 837 FEDCON split up GLF’s scope of work in this manner to reduce its costs. FEDCON had an incentive to minimize costs in replacing GLF “[b]ecause that was money that was going to come directly out of [FEDCON’s] pocket immediately.” 838 Based on pricing that it had received from subcontractors, FEDCON was “looking at $5 million over and above GLF’s remaining subcontract balance to have the work completed,” in addition to any resulting delays.839 301. On June 17, 2016, while F&D’s investigation was still ongoing and unbeknownst to F&D, FEDCON entered into a subcontract with Kirkland Concrete to complete the concrete 834 Deposition of Ivette Gualdron, Doc. 143 at 24:4–10, Doc. 144 at 39:18–25, 40:1–6, Doc. 146 at 61:6–8, Doc. 147 at 94:5–10. 835 Deposition of Ivette Gualdron, Doc. 142 at 6:24–25, 7:1–4. 836 Deposition of Ivette Gualdron, Doc. 143 at 26:3–8. 837 Testimony of David Boland, Doc. 232 at 175:12–20. 838 Id. at 174:22–25, 175:1–11. 839 Id. at 170:6–13. 117 Case 8:17-cv-01932-CEH-AAS Document 262 Filed 01/28/21 Page 118 of 192 PageID 44922 scope of the 2.2 Project Subcontract Agreement. 840 Notwithstanding its termination of the 2.2 Project Subcontract Agreement due to purported delays to the completion of the work, FEDCON did not enter into a subcontract with Bo-Mac to perform the pile driving work until July 20, 2016. 841 According to David Boland, Kirkland did not start work until late-August of 2016.842 In selecting Bo-Mac as the completion pile driving subcontractor, FEDCON bypassed selecting Target Construction, which would have saved FEDCON money as a result of Target being willing to factor in a pay-down of its existing settlement agreement with David Boland, Inc., which involved David Boland, Inc.’s purchase of a judgment against Target and use of that judgment to avoid liability for claims of Target on a previous Corps project. 843 FEDCON did not enter into the subcontract with Anders until October 27, 2016. 844 302. Paragraph 11.B of the 2.2 Project Subcontract Agreement provided, in relevant part: “[FEDCON] shall have the right to terminate this Subcontract Agreement, by written notice, without the Subcontractor being at fault, for any cause or for its own convenience, and require the Subcontractor to immediately stop work.” 845 This same provision was also in the respective subcontract agreements of Kirkland, Bo-Mac, and Anders. 846 As a result of these termination for convenience provisions, David Boland claimed that, if F&D had approached FEDCON, terminating these respective subcontract agreements would have been “no problem at all” and “there would have been no cost.” 847 However, Mr. Boland admitted that he never wrote a letter to F&D to advise the surety of FEDCON’s intention to enter into the subcontract agreements with 840 Doc. 219-788 at 1. Doc. 219-787 at 1. 842 Testimony of David Boland, Doc. 233 at 175:15–17. 843 See (Doc. 216-174 at 1); Testimony of David Boland, Doc. 232 at 197:3–25, 198:1–25, 199:1–25, 200:1–25, 201:1– 25, 202:1–20. 844 Doc. 219-786 at 1. 845 Doc. 216-116 at 6. 846 Docs. 219-788 at 6; 219-787 at 6; 219-786 at 219-786 at 6. 847 Testimony of David Boland, Doc. 175 at 11–22. 841 118 Case 8:17-cv-01932-CEH-AAS Document 262 Filed 01/28/21 Page 119 of 192 PageID 44923 the replacement subcontractors. 848 303. On or about June 21, 2016, F&D’s consultant, Lin Heath, visited the 2.2 Project as part of F&D’s investigation. 849 Mr. Heath also took photos during his visit. 850 With respect to the completed portions of GLF’s work, Mr. Heath did not observe anything that was problematic or otherwise out of the ordinary. 851 Mr. Heath had been provided with a copy of the Revised Terracon Report and, in the course of his observations of work front two in the area of the pipe bridges and the Chevron plant, he did not observe any work that had been performed in accordance with the Revised Terracon Report. 852 Mr. Heath’s observations of the work that was being performed by GLF on the 1.2a Project led him to believe that the project looked like an operation where “people knew what they were doing.” 853 Mr. Junkin also attended the June 21, 2016 site visit, and, based on his observations, he would not have given his approval or recommendation to GLF to recommence the work on the work platform at Monolith 076 through Monolith 078. 854 304. Ivette Gualdron testified that FEDCON’s filing of the state court lawsuit resulted in F&D’s inability to conduct its investigation “as [it] normally would.” 855 Given the lawsuit’s filing, “any communication would have been through counsel.” 856 As an example of F&D’s hampered ability to investigate, Ms. Gualdron, who also attended the site visit, testified that F&D was instructed by FEDCON’s counsel not to speak with any FEDCON personnel as part of F&D’s site visit. 857 Ms. Gualdron also emphasized that F&D’s investigation “took a different course,” but 848 Id. at 175:23–25, 176:1–8. Testimony of Lin Heath, Doc. 240 at 9:16–22, 10:5–7; Deposition of Ivette Gualdron, Doc. 143 at 17:1–9, 21:17– 18. 850 Testimony of Lin Heath, Doc. 240 at 11:14–16. 851 Id. at 15:5–14. 852 Id. at 11:24–25, 12:1–25, 13:1–25, 14:1–4. 853 Id. at 17:20–24. 854 Testimony of William Junkin, Doc. 239 at 197:17–25. 855 Deposition of Ivette Gualdron, Doc. 143 at 18:22–25, 19:1–4. 856 Id. at 21:7–8. 857 Id. at 19:5–25, 20:1–21. 849 119 Case 8:17-cv-01932-CEH-AAS Document 262 Filed 01/28/21 Page 120 of 192 PageID 44924 did not conclude, following FEDCON’s filing of the state court lawsuit. 858 F&D would not have conducted the site visit if it had decided to end the investigation. 859 Rather, after learning of the state court lawsuit on June 15, 2016, F&D asked for the site visit on June 16, 2016, and the site visit occurred on June 21, 2016. 860 F&D had communicated with GLF regarding the availability of GLF’s personnel for a site visit before learning of the state court lawsuit. 861 305. Following the June 21, 2016 site visit, F&D held a meeting with GLF and continued communications with GLF regarding its position and defenses. 862 In mid-August, F&D learned that some of the bonded work was proceeding, when GLF informed F&D that replacement contractors were mobilizing. 863 When asked whether she made any effort in the period of time between the site visit and mid-August, either personally or through counsel, to contact FEDCON to discuss the merits of the termination, Ms. Gualdron emphasized that “everybody was very engrossed in all of the procedural wrangling going on [regarding] where the litigation would proceed . . . it took the focus on everyone because there were filings in Florida and filings” in Louisiana. 864 There were efforts to “sort[] out” these issues so that other issues, such as discovery and conferral, could proceed. 865 306. Once F&D learned in August of 2016 that FEDCON had hired replacement subcontractors without providing any notice to F&D, it became clear, from F&D’s perspective, that FEDCON was depriving F&D of its rights to be able to elect a remedy under the bond and evaluate options under the bond. 866 858 Id. at 21:1–25, 22:1–2. Id. 860 Id. 861 Id. 862 Id. at 22:7–19. 863 Id. at 22:21–25. 864 Id. at 23:1–16. 865 Id. 866 Deposition of Ivette Gualdron, Doc. 145 at 59:7–22. 859 120 Case 8:17-cv-01932-CEH-AAS Document 262 Filed 01/28/21 Page 121 of 192 PageID 44925 307. F&D’s investigation into whether FEDCON’s termination of GLF constituted a valid termination was ongoing as of Ms. Gualdron’s departure from surety claims counsel position on August 1, 2017. 867 308. If F&D had been permitted to complete its investigation and had either tendered a completion contractor or undertaken completion of the work, FEDCON would not have incurred any additional costs beyond payment of the remaining subcontract balance to complete the work. 868 F&D could have opted to utilize GLF to complete the performance of the work.869 FEDCON never notified F&D that it had entered into subcontracts with Kirkland Concrete, BoMac Contractors, or any of the other replacement subcontractors. 870 Bo-Mac, the replacement pile driving subcontractor, was permitted to drive pile without the TFP in place, whereas, when GLF worked on the 2.2 Project, degrading could not occur prior to the TFP being in place beyond the stated 500 feet. 871 K. Project Schedule and Delay Damages Against GLF i. Introduction 309. FEDCON asserts delay damage claims against GLF and F&D, seeking to recover its extended field office overhead and other delay related costs and expenses due to delays allegedly caused by GLF in the performance of its work on both projects. FEDCON asserts that GLF delayed the 2.2 Project for a total of 252 days and the 1.2a Project for a total of 142 days. 872 310. It is undisputed that FEDCON maintained two separate schedules for each project: (1) a “project schedule,” which was also referred to as “early completion schedules,” as amended; 867 Deposition of Ivette Gualdron, Doc. 144 at 37:5–17, 40:24–25, 41:1–8. Testimony of David Boland, Doc. 233 at 174:5–12. 869 Id. at 174:22–25, 175:1. 870 Id. at 175:23–25, 176:1–13. 871 Testimony of Alonzo Harrison, Doc. 238 at 58:15–25, 59:1–9. 872 Testimony of Angela Sist, Doc. 235 at 148:5–19. 868 121 Case 8:17-cv-01932-CEH-AAS Document 262 Filed 01/28/21 Page 122 of 192 PageID 44926 and (2) the schedule approved by the Corps. The schedules were identical, except that the former did not include the forecasted adverse weather days that were included in the latter. 873 311. FEDCON bases its delay damages claims on schedules that included earlier completion dates for GLF’s scope of work and the projects overall, rather than the dates included in the approved schedules between FEDCON and the Corps. These schedules were referred to as “early completion schedules.” 874 FEDCON’s delay claims against GLF and F&D rely upon the analyses of the early completion schedules performed by Dr. Angela Sist, who offered expert testimony on behalf of FEDCON. Dr. Sist testified that, in her twenty-four years of performing schedule analyses, she has analyzed hundreds, if not thousands, of schedules, many of which have included delay claims by contractors and subcontractors. 875 However, on only one prior occasion—a project in Trinidad—did Dr. Sist analyze, for purposes of assessing delays against a subcontractor, a schedule between a subcontractor and a contractor that contained an earlier completion date for the subcontractor’s work than the approved schedule between the contractor and the owner for the full contract duration. 876 This constituted a “unique circumstance” for Dr. Sist. 877 In every other instance in which Dr. Sist analyzed delays using early completion schedules, the same completion schedule existed between the contractor and the owner and the contractor and the subcontractor. 878 312. Patrick Brannon, P.E., served as GLF’s expert witness regarding the delay issues and claims. After reviewing all of the different versions of the schedules prepared by FEDCON, (i.e., S-schedules, G-schedules, etc.), Mr. Brannon opined that, based on his thirty years as a 873 Testimony of Craig Hildebrandt, Doc. 233 at 228:14–17. Testimony of Angela Sist, Doc. 235 at 155:14–20. 875 Id. at 156:25, 157:1–4. 876 Id. at 157:5–14. 877 Id. at 157:13–14. 878 Id. at 157:20–25, 158:1–8. 874 122 Case 8:17-cv-01932-CEH-AAS Document 262 Filed 01/28/21 Page 123 of 192 PageID 44927 consultant and his prior work, using two separate schedules on each project is “extremely unusual and problematic.” 879 Mr. Brannon also testified that, in addition to this practice not being customary, he did not know of any legitimate scheduling consultant or party familiar with construction who would condone such a situation. 880 Mr. Brannon further opined that the approved schedules between FEDCON and the Corps, which were used to measure the costs on the projects, measure the performance by the contractor on the projects, and address time extensions on the projects, are the schedules that should be used to evaluate any delay attributable to GLF’s performance on the projects. 881 ii. Lack of a Project Schedule Upon Execution 313. GLF initially received the bid documents, which consisted of the specifications and the plans, to use in preparing its estimate of costs and bid, which GLF would submit to FEDCON for each project. 882 Each prime contract provided a number of “monthly anticipated adverse weather delay work days” based on a five-day work week, which served as the “base line for monthly weather time evaluations,” as well as the procedure for determining time extensions for “unusually severe weather” in accordance with Section 00700 Contract Clause, entitled “DEFAULT (FIXED-PRICE CONSTRUCTION) (FAR 52.249-10). 883 Although the 1.2a Project and the 2.2 Project were adjacent to each other, the number of weather days for each project, as provided for in the prime contracts, differed. 884 Both the 2.2 Project Subcontract Agreement and the 1.2a Project Subcontract Agreement referenced the “Prime Contract completion date” and a 879 Testimony of Patrick Brannon, Doc. 242 at 159:14–23. Id. 881 See Testimony of Patrick Brannon, Doc. 243 at 20:15–25, 21:1–3. 882 See Testimony of Ken Yerk, Doc. 237 at 8:9–16. 883 Docs. 216-10 at 17; 216-49 at 11. 884 Id.; Testimony of David Boland, Doc. 232 at 107:1–16; Testimony of Patrick Brannon, Doc. 243 at 126:19–25, 127:1–6. 880 123 Case 8:17-cv-01932-CEH-AAS Document 262 Filed 01/28/21 Page 124 of 192 PageID 44928 “Project Schedule” in Paragraph 7.A. 885 Each subcontract agreement also included a section entitled “Progress of the Work” in Paragraph 6. 886 Additionally, Exhibit D to each subcontract agreement provided, in relevant part, that the “Project Schedule” represented “the Contractor’s plan for controlling the performance of the work” and that it was developed to benefit all parties involved in the respective project by ensuring completion of the work “at the earliest possible time that is consistent with the orderly and efficient manner of construction.” 887 314. Neither the 1.2a Project Subcontract Agreement nor the 2.2 Project Subcontract Agreement had specific schedules attached thereto or referenced therein. 888 Indeed, at the time GLF entered into the subcontract agreements with FEDCON, there was not a developed schedule that had been reviewed or approved. 889 Craig Hildebrandt claimed that this practice is “very common” in Corps construction projects because the Corps has “very stringent requirements relative to the level of detail in their schedules.” 890 Consequently, development of the schedule “takes a significant period of time” which “generally exceeds the time allowed to issue initial subcontracts.” 891 315. Significantly, David Boland testified that he was unaware of any document in which, prior to the execution of the subcontract agreements, FEDCON communicated to GLF any intention on FEDCON’s behalf to finish these projects early. 892 Likewise, Ken Yerk testified that there were never any communications to him from representatives of FEDCON regarding any 885 Docs. 216-116 at 4; 216-132 at 4. Docs. 216-116 at 3; 216-132 at 3. 887 Docs. 216-117 at 8; 216-133 at 6. 888 Testimony of Joseph Beaird, Doc. 238 at 180:23–25, 181:1–6; 233 at 65:11–25; Testimony of Angela Sist, Doc. 235 at 164:1–9; Testimony of Jason Whitworth, Doc. 234 at 160:15–25, 161:1–2. 889 Testimony of Angela Sist, Doc. 235 at 163:13–25, 164:1–9. 890 Testimony of Craig Hildebrandt, Doc. 233 at 210:10–19. 891 Id. 892 Testimony of David Boland, Doc. 233 at 67:15–25, 68:1–3. 886 124 Case 8:17-cv-01932-CEH-AAS Document 262 Filed 01/28/21 Page 125 of 192 PageID 44929 intention on FEDCON’s behalf to complete either project early. 893 Additionally, neither the 2.2 Project Subcontract Agreement nor the 1.2a Project Subcontract Agreement contained specific production rates for GLF. 894 316. HDB did not originally know that an early completion schedule existed and learned about it only later. 895 FEDCON did not provide this project schedule to HDB, despite several requests. 896 Ultimately, GLF provided a copy of the schedule to HDB. 897 FEDCON created the project schedules, which reflected early completion dates for the 2.2 Project and the 1.2a Project, after the execution of the 2.2 Project Subcontract Agreement and the 1.2a Project Subcontract Agreement. 898 iii. FEDCON’s Submission of the Schedule to the Corps 317. The Contract Documents between FEDCON and the Corps for each project required FEDCON to submit a schedule to the Corps for approval. 899 The General Provisions of each prime contract set forth a specific number of adverse weather days for each calendar month that were to be included in the approved schedule between FEDCON and the Corps.900 Notwithstanding the language of Section 01100, which is the “General Provisions” section of the prime contracts between FEDCON and the Corps, and the testimony of Mr. Whitworth, Craig Hildebrandt refused to acknowledge that Section 01100 required a specific number of adverse weather days to be included in the schedule. 901 Based upon FEDCON’s early completion schedules, the general conditions clause that was included in the budgets included less than the 893 Testimony of Ken Yerk, Doc. 237 at 12:17–23. Testimony of Rick Batdorf, Doc. 235 at 95:15–18; Doc. 219-887 at 1. 895 Testimony of Alonzo Harrison, Doc. 238 at 62:25, 63:1–5. 896 Id. at 63:6–22. 897 Id. at 63:15–22. 898 Testimony of David Boland, Doc. 233 at 396:6–15. 899 See id. at 62:7–12. 900 Testimony of Jason Whitworth, Doc. 234 at 174:9–20. 901 Testimony of Craig Hildebrandt, Doc. 234 at 220:14–20. 894 125 Case 8:17-cv-01932-CEH-AAS Document 262 Filed 01/28/21 Page 126 of 192 PageID 44930 full number of contract days that were set forth in the Contract Documents. 902 Indeed, based on assumptions that FEDCON made in preparing its pre-bid schedule without seeking clarification from the Corps, FEDCON included fewer days, and therefore a lesser number of general condition costs, in the bids that were submitted to the Corps on both projects. 903 Again, there was not any information, either in the form of a schedule or any other document, communicated by FEDCON to GLF regarding FEDCON’s intention to complete these projects early. 904 318. The Corps construed Section 01100 as requiring the inclusion of a specific number of adverse weather days each month in the schedules prepared and submitted by FEDCON.905 However, pursuant to Mr. Hildebrandt’s analysis, the initial schedule that FEDCON prepared for each project, which FEDCON submitted to the Corps, did not include all of the adverse weather days. 906 Instead, FEDCON utilized “what [it had] estimated would be adverse weather days.”907 These initial schedules reflect a completion date earlier than the completion date for the work included in the Contract Documents for each project. 319. FEDCON submitted the early completion schedules for each project to the Corps, which rejected each schedule. 908 The Corps directed FEDCON to prepare and submit new schedules that included the entirety of the contract time, which meant including all of the adverse weather days included in Section 01100 for each project. 909 FEDCON subsequently prepared and submitted new schedules to the Corps, which included the same end dates as those in the project 902 Docs. 216-10 at 17; 216-49 at 11; Testimony of Jason Whitworth, Doc. 234 at 162:21–25, 163:1–2. Testimony of Craig Hildebrandt, Doc. 234 at 677:6–21. 904 Testimony of David Boland, Doc. 233 at 67:15–21. 905 Testimony of Craig Hildebrandt, Doc. 234 at 220:14–25, 221:1–2. 906 Id. at 220:21–25, 221:1–5. 907 Id. at 221:3–5. 908 Testimony of David Boland, Doc. 233 at 68:4–7; Testimony of Jason Whitworth, Doc. 234 at 120:6–10. 909 Testimony of David Boland, Doc. 233 at 68:7–19. 903 126 Case 8:17-cv-01932-CEH-AAS Document 262 Filed 01/28/21 Page 127 of 192 PageID 44931 specifications. 910 The Corps approved these schedules. 911 320. However, as a result of including a reduced amount of general conditions costs in its budget based upon its use of fewer days than the number of days required by the bid documents, in order for FEDCON to meet its budget, it had to complete the work on each project in some lesser number of days than the full number of contract days. 912 If FEDCON was then required to remain on the projects, either by contract or circumstances, for the full number of contract days, it would end up having a cost overrun on its general conditions costs. 913 321. The schedules submitted to, and approved by, the Corps for each project included a prime contract completion date, as measured by activity on the final day of the duration of the project. 914 The approved schedules submitted by FEDCON to the Corps were updated monthly.915 For update purposes, if there was a delay because of an event that would become the subject of a contract modification, the prime contract completion date would not change until a contract modification was issued. 916 The prime contract completion date was updated during the course of the projects. 917 There is no document between FEDCON and the Corps for either project that reflects that an act or omission of GLF delayed the prime contract completion date. 918 322. Thus, while the schedules that were submitted to the Corps included all the adverse weather days that were outlined in the specifications, FEDCON also prepared project schedules, which FEDCON used to run the projects, that excluded all adverse weather days from 910 Testimony of Jason Whitworth, Doc. 234 at 120:16–19. Id. at 120:20–21. 912 See Testimony of Jason Whitworth, Doc. 234 at 162:21–25, 163:1–11. 913 Id. at 163:12–17. 914 Testimony of David Boland, Doc. 233 at 68:20–25, 69:1–14. 915 Id. at 69:15–21. 916 Id. at 70:3–23. 917 Id. at 69:22–25, 70:1–2. 918 Id. at 75:5–10. 911 127 Case 8:17-cv-01932-CEH-AAS Document 262 Filed 01/28/21 Page 128 of 192 PageID 44932 the calendar. 919 323. After issuance of the early completion schedules for both projects, FEDCON used two separate schedules for each project: the approved schedule between FEDCON and the Corps and the early completion schedules. 920 GLF did not agree to use this dual schedule setup, in which FEDCON used an early completion schedule with GLF and the approved schedule with the Corps that included all contract time. 921 324. On March 31, 2014, Jason Whitworth sent to GLF the “schedule” for the 2.2 Project, as updated through March 1, 2014. 922 Whitworth advised that the schedule did not “account for the restricted area in Chevron,” which FEDCON intended to include on the next update. 923 325. On April 15, 2014, FEDCON furnished GLF and HDB with the initial schedule for the 1.2a Project, stating: “The attached PDF represents our baseline schedule as presented to the [Corps] for the [1.2a Project] organized by Responsibility then early start. Contractually stipulated Anticipated Weather Days have been excluded for purposes of planning the work.” 924 Thus, FEDCON provided GLF with the schedule that had been provided to the Corps, except anticipated weather days were omitted “for purposes of planning the work.” 326. On May 8, 2014, GLF requested the approved schedules for both projects from FEDCON because GLF needed the schedules to plan its work and implement its processes for installing the work.925 GLF clarified that it sought “expanded versions”—the full versions—of the project schedules that were submitted to, and approved by, the Corps, including any updates for 919 Testimony of Jason Whitworth, Doc. 234 at 121:1–8. Testimony of Angela Sist, Doc. 235 at 179:11–19. 921 Testimony of Ken Yerk, Doc. 237 at 23:7–13. 922 Doc. 220-130 at 1. 923 Id. 924 Doc. 219-735 at 1. 925 Doc. 219-868 at 1; Testimony of Lorenzo Ellis, Doc. 241 at 11:15–25, 12:1–2. 920 128 Case 8:17-cv-01932-CEH-AAS Document 262 Filed 01/28/21 Page 129 of 192 PageID 44933 review. 926 In its request, GLF also asked FEDCON to “provide a record of any weather days, holidays and time extensions granted by the [Corps] from the first chargeable contract day thr[ough] April 30, 2014.” 927 GLF advised FEDCON to “include GLF monthly on weather/holidays granted (out of the days already accounted for in the Contract or any additional days) for the previous months [sic] work so that we can track the schedule for our work as it progresses.” 928 327. On May 21, 2014, FEDCON furnished GLF with the baseline schedule for the 2.2 Project, advising that the schedule had been updated through April 30, 2014. 929 FEDCON again stated that “the version attached is an exact replica of the progress schedule submitted to the [Corps], with the only exception being that there are no anticipated weather days included in the work day calendar.” 930 328. In each case, these schedules were sent to GLF months after the parties executed the 1.2a Project Subcontract Agreement and the 2.2 Project Subcontract Agreement. Thus, the early completion schedules upon which FEDCON presently relies as the basis for its delay claims did not exist at the time of the execution of the subcontracts. 931 iv. FEDCON’s July 28, 2014 Letter and Subsequent Correspondence 329. On July 15, 2014, GLF requested “a copy of the approved Project Schedule which specifies the Time of Performance as referenced within” Paragraphs 1.A and 7.A of the 1.2a Project Subcontract Agreement and the 2.2 Project Subcontract Agreement. 932 330. FEDCON responded to this request on July 28, 2014, wherein FEDCON 926 Doc. 219-868 at 1; Testimony of Lorenzo Ellis, Doc. 241 at 12:3–14. Doc. 219-868 at 1. 928 Id. 929 Doc. 216-313 at 1. 930 Id. 931 Testimony of David Boland, Doc. 233 at 59:23–25, 60:1–5. 932 Doc 216-320 at 2. 927 129 Case 8:17-cv-01932-CEH-AAS Document 262 Filed 01/28/21 Page 130 of 192 PageID 44934 explained its basis for using two schedules. 933 Significantly, FEDCON averred that it had analyzed the “expected weather based on historical weather data and actual exposure on adjacent projects” before submitting the bids for the 1.2a Project and the 2.2 Project, which resulted in FEDCON determining that the “reasonably anticipated weather” would allow FEDCON to “complete the projects early,” which FEDCON represented in the general conditions that it included in its bids.934 FEDCON admitted that, after the Corps’ initial rejection of FEDCON’s proposed schedule, in which the Corps demanded the “full number of days in the schedule, FEDCON re-submitted the schedule to “attain approval” from the Corps. 935 However, FEDCON claimed that, before resubmitting this schedule, FEDCON “met with GLF’s management, Joe Beaird and other management at Fedcon’s office and explained an approach that would enable Fedcon to obtain approval of the schedule from the [Corps] (which would enable Fedcon to receive and make payment to GLF but retain the teams [sic] plan for early completion.” 936 331. According to FEDCON, this plan involved “revising the calendar in the schedule to include all days reflected in Specification Section 01100, which without any significant changes to the logic, reflected utilization of the entire prime contract duration.” 937 Critically, FEDCON acknowledged that this plan did not represent FEDCON’s plan, but instead “would be used for [Corps] submission only” and the schedule “would then be revised to remove all weather days (from the calendar),” which would represent “the schedule that the project would be worked to and evaluated against.” 938 For each update, the “actual progress for the month would be compared to the planned progress” and any delay to the “forecast completion” would result in “full credit” 933 Doc. 216-161 at 1–2. Id. at 1. 935 Id. 936 Id. 937 Id. 938 Id. at 1–2. 934 130 Case 8:17-cv-01932-CEH-AAS Document 262 Filed 01/28/21 Page 131 of 192 PageID 44935 being provided for “all holidays lost to weather or high water events.” 939 FEDCON represented that GLF concurred with this approach and FEDCON accordingly moved forward. 940 332. Craig Hildebrandt testified that FEDCON decided to use two different schedules, rather than using one schedule that included the number of weather days in accordance with the Section 01100 specifications, because FEDCON did not believe that the Section 01100 specifications “accurately reflected the planned performance of the work.” 941 According to FEDCON, the number of anticipated weather days, once incorporated into the schedule, would produce few available work days in certain months, which FEDCON deemed “completely unreasonable.” 942 Additionally, FEDCON determined that including a schedule without any included weather days would enable FEDCON to “track the actual weather days” and add them into the schedule. 943 Jason Whitworth testified that, in his experience, “often you’re awarded a job, and you have to immediately start buying out the project so that subcontractors can begin to do their submittal process.” 944 According to Whitworth, the development of the schedule regularly follows the issuance of subcontracts and is often tied to payment. 945 333. Ken Yerk testified that the July 28, 2014 letter from FEDCON, which was addressed to him, constituted the first instance in which he learned about the purported meeting between GLF and FEDCON or discussion regarding two schedules. 946 As previously mentioned, he testified that there were never any communications to him from representatives of FEDCON regarding any intention on FEDCON’s behalf to complete either project early. On the other hand, 939 Id. at 2. Id. 941 Testimony of Craig Hildebrandt, Doc. 233 at 217:15–25, 218:1–3. 942 Id. 943 Testimony of Jason Whitworth, Doc. 234 at 121:18–25, 122:1. 944 Id. at 202:18–25, 203:1–4. 945 Id. at 203:5–25, 204:1–6. 946 Testimony of Ken Yerk, Doc. 237 at 30:2–5. 940 131 Case 8:17-cv-01932-CEH-AAS Document 262 Filed 01/28/21 Page 132 of 192 PageID 44936 David Boland testified that he and Jason Whitworth attended a meeting with Ken Yerk and Joseph Beaird of GLF in February of 2014, in which GLF and FEDCON personnel discussed submitting to the Corps the same schedule that had been disapproved, except utilizing the full number of days reflected in Section 1100, and using that schedule, except without the forecasted adverse weather days, to manage the project. 947 Jason Whitworth likewise testified that FEDCON advised of its intention to utilize a schedule with no weather during this meeting.948 Both David Boland and Jason Whitworth testified that GLF did not object to this approach. 949 334. Joseph Beaird testified that, while it was possible that he attended such a meeting, he could not recall the details of the meeting referenced in the letter, and he knew there were discussions at one time about resubmitting the schedule for the Corps’ approval. 950 Beaird also contended that FEDCON did not seek GLF’s agreement, but instead merely advised GLF of the course of action it had taken. 951 He could not recall whether or not he expressed disagreement with an early completion schedule. 952 335. According to Jeff Falati, the baseline schedule is required for the project and the contractor may decide to pursue the project in a different manner as the project progresses, depending on the project’s complexities or changes thereto, but “discussions between the contractor and the [Corps] should occur” as far as alterations in duration. 953 336. On August 12, 2014, GLF responded to FEDCON’s July 28, 2014 letter, in which GLF: (1) advised that the subcontract agreement did not contain any referenced schedule other than the “Project Schedule”; (2) denied the communications mentioned in FEDCON’s letter and 947 Testimony of David Boland, Doc. 233 at 220:11–24. Testimony of Jason Whitworth, Doc. 234 at 123:20–25, 124:1–7. 949 Testimony of David Boland, Doc. 233 at 220:25, 221:1; Testimony of Jason Whitworth, Doc. 234 at 124:13–15. 950 Testimony of Joseph Beaird, Doc. 239 at 20:12–18, 22:4–10. 951 Id. at 26:3–11. 952 Id. at 25:15–25, 26:1–2. 953 Testimony of Jeff Falati, Doc. 235 at 222:24–25, 223:1–20. 948 132 Case 8:17-cv-01932-CEH-AAS Document 262 Filed 01/28/21 Page 133 of 192 PageID 44937 rejected any assertion regarding GLF’s agreement to a schedule other than the Project Schedule, as referred to in the subcontract agreement; (3) asserted that, if a change regarding scheduling had occurred as FEDCON asserted, then such a change would have to be documented in the form of a change order or contract addendum since it would change the terms and conditions of the subcontract agreement; and (iv) opined that FEDCON was keeping the intended purpose of a second schedule a secret from GLF and likely the Corps, as well. 954 337. GLF wrote several additional letters to FEDCON during the course of both projects, in which GLF objected to FEDCON’s use of the early completion schedules, maintained that the schedule approved by the Corps constituted the only project schedule, or both. 955 At no point following the February meeting mentioned above or upon receiving any of the early completion schedules did GLF receive a change order or contract addendum that changes the terms and conditions of the subcontract in relation to an early completion schedule. 956 338. GLF’s production was impacted throughout the projects by the conditions of both the temporary access roads and the work platform. Beaird reiterated that there were days when the access roads were shut down or otherwise impassible. 957 Additionally, deliveries of materials using muddy and rutted access roads and workers standing up to their ankles in mud on the work platforms cause both inefficiencies and delays to the work. 958 339. FEDCON received extensions of time from the Corps on both projects such that the projects were completed within the revised schedules and revised prime contract completion dates. 959 Through contract modifications, time was awarded to FEDCON for adverse weather and 954 Doc. 219-750 at 1–2. Docs. 219-954 at 1–2; 219-955 at 1–2; 219-882 at 1–3; 219-891 at 2; 219-959 at 1–2; 216-309 at 3–4. 956 Testimony of Joseph Beaird, Doc. 239 at 63:14–20. 957 Testimony of Joseph Beaird, Doc. 238 at 194:21–24. 958 Id. at 194:21–24, 195:1–10. 959 Testimony of David Boland, Doc. 233 at 71:5–10. 955 133 Case 8:17-cv-01932-CEH-AAS Document 262 Filed 01/28/21 Page 134 of 192 PageID 44938 high river over what was included in the Contract Documents. 960 340. There were periods of time on both projects when the Mississippi River rose to a certain elevation such that a high river restriction went into effect, such that no work could be performed. 961 During these periods, FEDCON received time extensions from the Corps. 962 The number of days that these projects were impacted by the high river restrictions exceeds the number of days that FEDCON included in its pre-bid analysis for high river restriction, upon which the early completion schedules were based. 963 Pursuant to the prime contracts, FEDCON received non-compensable days of time extension from the Corps for high river days when no work could be performed, thus impacting the critical path. 964 v. Dr. Sist’s Analysis 341. To provide a general overview of her analysis, Dr. Sist used the early completion schedules as the basis for her delay analysis because these schedules “were disseminated throughout the course of the project on a regular basis for the purposes of planning and tracking the work.” 965 Dr. Sist opined that FEDCON’s decision to use the early completion schedules to manage the projects was reasonable because these schedules were “the only schedule[s] that w[ere] used to plan and manage” the projects. 966 Dr. Sist explained that she examined these schedules, utilizing the schedules as the “plan” for each project, and compared that plan to how the work was accomplished. 967 She used these schedules to examine the course of the project, day-by-day, to determine the cause of the delays to the “critical path.” 968 The “critical path method” of scheduling 960 Id. at 71:5–21. Id. at 72:16–19. 962 Id. at 72:20–22. 963 Id. at 233 at 72:23–25, 73:1–5; Testimony of Craig Hildebrandt, Doc. 234 at 241:5–9. 964 Testimony of David Boland, Doc. 233 at 73:6–15. 965 Testimony of Angela Sist, Doc. 235 at 126:17–24, 127:1–5. 966 Id. at 128:12–17. 967 Id. at 114:1–7. 968 Id. at 114:8–13. 961 134 Case 8:17-cv-01932-CEH-AAS Document 262 Filed 01/28/21 Page 135 of 192 PageID 44939 is a method of linking together all of the activities to be performed on a project so that one may determine the path that drives the end of the project. 969 Once Dr. Sist determined the cause of delays, which she defined as “activities that were not performed as planned,” she conducted further research to determine who was responsible for the delay or, if there was an improvement, the improvement. 970 Dr. Sist utilized the same methodology for both projects. 971 342. The Court finds credible Mr. Brannon’s testimony and analysis regarding the flaws in Dr. Sist’s analysis. Mr. Brannon identified several fundamental issues with Dr. Sist’s analysis. 972 First, he opined that Dr. Sist erred in using the early completion schedules for her analysis, rather than schedules submitted to the Corps. 973 He opined that the schedules submitted to the Corps—the schedules used to measure costs and performance on the projects by the Corps and FEDCON and the schedules that both entities utilized to address extensions of contract time— were the proper schedules to use for the analysis.974 As such, he claimed that Dr. Sist did not rely upon the analysis of the project schedule that the Corps and FEDCON used to manage the project. 975 Additionally, Dr. Sist did not reconcile her liability analysis with the position taken by FEDCON over the course of the projects regarding the causes of the delays. 976 Relatedly, Dr. Sist also failed to reconcile the analysis with all time extensions granted on the project, including extensions granted to FEDCON by the Corps. 977 The final fundamental flaw identified by Mr. Brannon was Dr. Sist’s addition of weather that had not yet occurred. 978 969 Id. at 105:7–16. Id. at 114:14–20. 971 Id. at 146:17–19. 972 Testimony of Patrick Brannon, Doc. 243 at 51:24–25, 52:1–2. 973 Id. at 52:2–17. 974 Id. at 20:15–25, 21:1–4. 975 Id. at 52:14–17. 976 Id. at 52:18–25 977 Id. at 53:22–25, 54:1, 57:11–22. 978 Id. at 65:18–25, 66:1–25, 67:1–12, 68:1–7. 970 135 Case 8:17-cv-01932-CEH-AAS Document 262 Filed 01/28/21 Page 136 of 192 PageID 44940 343. The “follow-on weather days” included in Dr. Sist’s analyses of delays being attributable to GLF, and for which FEDCON is seeking damages from GLF, are 122 days for the 2.2 Project and 92 days for the 1.2a Project. 979 These “follow on weather days” constitute either adverse weather days or high river days for which FEDCON received non-compensable days of time extension from the Corps, pursuant to the terms of the prime contracts. 980 In regard to the “observational method” performed by Dr. Sist, Mr. Brannon testified that he has never seen anyone perform this type of analysis before. 981 Mr. Brannon further testified that, in her analysis for the 2.2 Project, Dr. Sist actually assessed 116 days to GLF, but, in his belief, inadvertently added an additional six days attributed to FEDCON, thereby producing the 122 days for the 2.2 Project.982 Mr. Brannon was unaware of any treatise or publication that supports the second component of Dr. Sist’s analysis, whereby the 116-day delay on the 2.2 Project that Dr. Sist assessed to GLF became a 252-day delay. 983 344. A portion of FEDCON’s claim based upon follow-on weather days for the 2.2 Project includes the computation of a 41-day delay in late 2015 and early 2016 stemming from a 4-day delay in May 2014. 984 Mr. Brannon testified that he has never seen anyone perform this type of analysis and knows of no basis in the relevant literature to make such a hypothetical analysis of events that nobody knows are going to happen one and one-half years into the future. 985 Brannon testified that this analysis, upon which FEDCON relies to bring its delay claim for the 2.2 Project against GLF, is “flawed” and renders the claim “untenable.” 986 979 Testimony of Angela Sist, Doc. 235 at 161:6–25, 162:1–17. Id. 981 Testimony of Patrick Brannon, Doc. 243 at 50:16–25, 51:1–23. 982 Id. at 63:13–25, 64:1–25. 983 Id. 984 Id. at 67:2–25, 68:1–7. 985 Id. at 68:8–14. 986 Id. at 68:15–18. 980 136 Case 8:17-cv-01932-CEH-AAS Document 262 Filed 01/28/21 Page 137 of 192 PageID 44941 345. FEDCON’s removal of all of the weather days from the early completion schedules, as mentioned above, deprived GLF of additional days to perform its work, i.e., “float,” when the actual number of weather days was less than the number of weather days that the Corps required FEDCON to include in the approved schedules. 987 In Dr. Sist’s analysis, GLF did not receive the benefit of the shared float in the approved schedules between FEDCON and the Corps, and FEDCON used the removed float to create a claim against GLF when there were no delays attributable to GLF. 988 346. In addition to time extensions for adverse weather days and time extensions due to high river restriction periods, FEDCON also received contract modifications resulting in extensions on the 2.2 Project for the differing site condition that existed at the Chevron plant. 989 347. As a result of FEDCON’s receipt of extensions of time from the Corps such that the 2.2 Project was completed within the revised prime contract completion date, no liquidated damages were assessed against FEDCON in regard to delay. 990 348. As a result of FEDCON’s receipt of extensions of time from the Corps such that the 1.2a Project was completed within the revised prime contract completion date, no liquidated damages were assessed against FEDCON in regard to delay. 991 349. FEDCON’s requests to the Corps for time extensions were made in good faith insofar as the cause or basis for the delay to the project or prime contract completion date. 992 FEDCON never requested a time extension from the Corps in good faith wherein the provided reason for the request was that more time was needed because of something GLF did not do or did 987 Testimony of Angela Sist, Doc. 235 at 171:25, 172:1–19; Testimony of Jason Whitworth, Doc. 234 at 174:1–8, 176:1–23, 177:15–25, 178:1–25, 179:1–5. 988 Testimony of Patrick Brannon, Doc. 243 at 73:6–25, 74:1–5. 989 Testimony of Patrick Brannon, Doc. 242 at 166:15–24. 990 Testimony of David Boland, Doc. 233 at 71:5–14. 991 Id. at 71:5–14. 992 Id. at 76:6–13. 137 Case 8:17-cv-01932-CEH-AAS Document 262 Filed 01/28/21 Page 138 of 192 PageID 44942 not meet in regard to a schedule. 993 Mr. Brannon testified that there is a direct conflict between the positions that FEDCON has taken with the Corps during the projects insofar as the amount of the delay and the causation of delay and the position that FEDCON has taken as to GLF regarding quantification and liability for delay. 994 L. GLF’s Preparation and Submission of its Claims to FEDCON 350. The parties stipulate that GLF submitted six (6) requests for equitable adjustment to FEDCON for alleged additional costs GLF incurred on the 2.2 Project and three (3) requests for equitable adjustment to FEDCON for alleged additional costs GLF incurred on the 1.2a Project. 995 351. GLF submitted its claims for the 1.2a Project to FEDCON on April 29, 2016, advising that, per its “previous notices” to FEDCON, it was providing FEDCON with its “claims for additional compensation for the additional costs that have been incurred due to impacts, actions and inaction” on the part of FEDCON regarding the 1.2a Project Subcontract Agreement work. 996 GLF identified its claims as the following: (1) “Failure to provide two work fronts concurrently”; (2) “Crane matting due to inadequate work platform construction”; (3) “Failure to provide properly designed and engineered access road”; and (4) “Impact of high river outside of high river season.” 997 As set forth above, GLF’s claims for the 1.2a Project are composed of the following: (1) a claim for “Deficient Design and Construction Access/Haul Road” in the amount of $614,487.74; 998 (2) a claim for “Deficient Design and Construction of Work Platform” in the amount of $772,365.22; 999 and (3) a claim for “Failure to Provide Two Work Fronts Concurrently” 993 Id. at 77:10–19. Testimony of Patrick Brannon, Doc. 242 at 167:12–18. 995 Doc. 134 ¶¶30–31. 996 E.g., Doc. 218-4 at 2. 997 Id. 998 Doc. 219-1091 at 1. 999 Doc. 219-1092 at 1. 994 138 Case 8:17-cv-01932-CEH-AAS Document 262 Filed 01/28/21 Page 139 of 192 PageID 44943 in the amount of $994,674.68. 1000 352. GLF also submitted many, but not all, of its claims for the 2.2 Project on April 29, 2016, advising that, per its “previous notices” to FEDCON, it was providing FEDCON with its “claims for additional compensation for the additional costs that have been incurred due to impacts, actions and inaction” by FEDCON regarding the 2.2 Project Subcontract Agreement work. 1001 GLF identified its claims as the following: (1) “Failure to provide two work fronts concurrently”; (2) “Failure to plan and pursue low profile work”; (3) “Multiple handling of materials due to lack of access”; (4) “Crane matting due to inadequate work platform construction”; (5) “Failure to provide properly designed and engineered access road”; (6) “Impact of high river outside of high river season”; and (7) “Impact due to unilateral decision to change sheet pile material from PZ to AZ.” 1002 353. FEDCON had not terminated the 2.2 Project Subcontract Agreement as of April 29, 2016, and GLF provided enclosed documentation to FEDCON in support of its claim for the purportedly improper termination on June 3, 2017. 1003 Further, as mentioned above, GLF submitted its REA for the costs associated with the AZ sheet piling materials on November 4, 2014, and submitted its REA binder to FEDCON on November 25, 2014. 1004 354. GLF’s claims for the 2.2 Project include the following: (1) a claim for “Deficient Design and Construction of Access/Haul Road” in the amount of $768,591.49; 1005 (2) a claim for “Deficient Design and Construction of Work Platform” in the amount of $783,313.97; 1006 (3) a 1000 Doc. 219-1093 at 1. E.g., Doc. 219-751 at 2. 1002 Id. 1003 Doc. 218-771 at 1–2. 1004 Doc. 134 ¶¶55–56. 1005 Doc. 219-1087 at 1. 1006 Doc. 219-1088 at 1. 1001 139 Case 8:17-cv-01932-CEH-AAS Document 262 Filed 01/28/21 Page 140 of 192 PageID 44944 claim for “Failure to Provide Two Work Fronts Concurrently” in the amount of $475,618.21;1007 (4) a claim for “Failure to Plan and Pursue Low Profile Work” in the amount of $351,402.28;1008 (5) a claim for “Multiple Material Handling Due to Lack of Access” in the amount of $111,953.47; 1009 (6) a claim for “Impact Due to FEDCON Unilateral Decision to Change Sheetpile Section from PZ to AZ” in the amount of $469,453.06; 1010 and (7) a claim for “Cost Impact of Additional Demobilization Due to Improper Termination” in the amount of $375,197.30. 1011 GLF also seeks $118,854.78 for Application for Payment No. 34 and $880,000.00 for reimbursement of demobilization costs and expenses. 355. Lorenzo Ellis was responsible for preparing GLF’s claims, except the AZ-PZ sheet pile claim, for which he gathered information and reviewed. 1012 These claims were not reviewed by Yerk, Beaird, Howard, or Senis before they were submitted to FEDCON. 1013 Mr. Ellis has experience preparing claims. 1014 Regarding his methodology to determine the basis, support, and amount for the claims, Ellis aimed to isolate the labor, equipment and supervision as he analyzed costs and time. 1015 He also aimed to capture impacts related to actions or omissions by FEDCON, not GLF. 1016 The methodology included a review of all of GLF daily timesheets, foremen’s daily reports, payroll records for the labor cost and its equipment records reflecting the type of equipment that was to be used and Blue Book information for the daily cost of the equipment, as well as information from Corps EP-1110 Manual on equipment rates. 1017 Ellis 1007 Doc. 219-1089 at 1. Doc. 218-702 at 2. 1009 Doc. 218-733 at 1. 1010 Doc. 218-766 at 2. 1011 Doc. 218-781 at 2. 1012 Testimony of Lorenzo Ellis, Doc. 240 at 44:22–25, 46:6–13. 1013 Testimony of Lorenzo Ellis, Doc. 241 at 153:9–12. 1014 Testimony of Lorenzo Ellis, Doc. 240 at 45:14–17. 1015 Id. at 45:14–25, 46:1–9. 1016 Id. 1017 Id. at 48:4–25, 49:1–11, 223:10–24. 1008 140 Case 8:17-cv-01932-CEH-AAS Document 262 Filed 01/28/21 Page 141 of 192 PageID 44945 recomputed all of the claims, with the exception of the low-profile claim (which relies upon actual invoices), utilizing EP 1110 rates. 1018 The recalculated claims are the same as the claims utilizing Blue Book rates, except to the extent that Ellis caught “minor” errors. 1019 356. To support its claims, GLF presented the testimony of Mr. Brannon, whom GLF tendered as an expert witness in regard to schedule and delay analysis, impact analysis, and damages. 1020 Mr. Brannon has reviewed claims for thirty years and testified that he applied the standards that he gained from his own experience, as well as published industry standards, in reviewing GLF’s claims. 1021 Mr. Brannon testified that he began addressing the issues and costs pertaining to the claims with GLF’s representatives following his site visit in 2015. 1022 Mr. Brannon had several discussions with Lorenzo Ellis regarding the collection of documentation and cost information to support the damages and the methodology to be utilized to compile the documentation and present it in an organized manner and fully document the costs for submission and review. 1023 Mr. Brannon further testified that, on numerous occasions, he reviewed the compilation of information and costs and supporting documentation, as well as the “methodology, the reasoning behind the claims, [and] the process in which [Lorenzo Ellis] was compiling records to support those claims over the course of the project[s] . . . .” 1024 357. Mr. Brannon opined, based on his experience, that GLF’s claims do not constitute delay claims, but “disruption” claims: A delay claim is typically utilized to capture the costs related to an extension of a contract time period, and the cost the contractor incurs for that extension. There is no extension requested by GLF on this project. The full project, the original project period was extended 1018 Id. at 223:10–15. Id. at 223:25, 224:1–24. 1020 Testimony of Patrick Brannon, Doc. 242 at 149:2–10. 1021 Testimony of Patrick Brannon, Doc. 243 at 29:2–20. 1022 Id. at 22:16–25, 23:1–6. 1023 Id. at 26:19–21, 27:2–11. 1024 Id. at 28:15–17, 30:5–12. 1019 141 Case 8:17-cv-01932-CEH-AAS Document 262 Filed 01/28/21 Page 142 of 192 PageID 44946 through the actual project period by modifications from the owner, at least throughout the period of GLF’s performance. No, this is not a delay claim. These costs are more properly classified as a disruption claim in my opinion. 1025 358. Mr. Brannon reviewed the claims for reasonableness; he did not attempt to recreate Mr. Ellis’ many calculations, nor did he try to reproduce the claims. 1026 Based on his review and his knowledge of the issues, Mr. Brannon opined that the claims, as calculated, were reasonable. 1027 359. To the extent that the Court concludes that Paragraph 13.B of the subcontract agreements is applicable, the record evidence demonstrates that FEDCON never responded to any of GLF’s claims in accordance with Paragraph 13.B. 1028 However, on July 17, 2017, FEDCON asked GLF to provide additional information for the low profile claim, such as the methodology for determining the labor, project management, supervision, and equipment hours or days, to which GLF responded on July 19, 2017. 1029 GLF provided similar information to FEDCON for its multiple material handling claims on the 2.2 Project on July 19, 2017, following a June 28, 2017 request from FEDCON. 1030 FEDCON asked for even more information for this claim on September 5, 2017, so that FEDCON could “review the information and submit any applicable changes to” the Corps. 1031 Mr. Ellis testified that, despite requests for additional information, GLF did not receive a “substantive response” to its claims from FEDCON. 1032 360. The parties met on October 25, 2019, at the conclusion of the first week of trial, for purposes of FEDCON providing to GLF information regarding issues or concerns in response 1025 Id. at 32:7–16. Id. at 45:20–25, 46:1–2. 1027 Id. at 46:2–4. 1028 Testimony of Lorenzo Ellis, Doc. 240 at 58:5–12, 226:21–25, 227:1–4. 1029 Id. at 52:12–23; Docs. 218-711 at 1–2; 218-712 at 1–2. 1030 Testimony of Lorenzo Ellis, Doc. 240 at 52:12–23; Docs. 218-731 at 1–2; 218-730 at 1–2. 1031 Doc. 222-315 at 1–4. 1032 Testimony of Lorenzo Ellis, Doc. 241 at 7:14–19, 9:12–19. 1026 142 Case 8:17-cv-01932-CEH-AAS Document 262 Filed 01/28/21 Page 143 of 192 PageID 44947 to GLF’s claims. 1033 Lorenzo Ellis testified that the information provided by FEDCON at the October 25, 2019 meeting constituted the first response that GLF had received to its claims.1034 Based upon the information provided by FEDCON, GLF, through Mr. Ellis’ efforts, undertook a review of the allotted time for supervisory personnel and equipment within the claims. 1035 361. FEDCON initially objected to GLF presenting evidence regarding the adjustments that were made to the claims after GLF’s receipt of information from FEDCON at the October 25, 2019 meeting. After addressing the issue with the Court, the parties agreed that the evidence of GLF’s adjustments to its claims would be presented to the Court through the testimony of Ellis and the use of demonstrative exhibits. 362. GLF made the following adjustments to its claims: (1) ($67,974.19) for project management and supervision; 1036 (2) ($6,506.25) for crane hours; 1037 and (3) ($67,881.17) resulting from the removal of four days. 1038 The sum of these adjustments that arise from the October 25, 2019 meeting and information supplied by FEDCON is $142,361.61. These reductions cover both projects. III. CONCLUSIONS OF LAW A. Legal Standards i. Federal Civil Trial Burden of Proof 1033 See Doc. 235 at 296:18–21. See Testimony of Lorenzo Ellis, Doc. 240 at 58:5–17, 59:12–24. 1035 Id. at 226:5–20, 230:20–25, 231:1–9. 1036 Testimony of Lorenzo Ellis, Doc. 241 at 5:15–25, 6:1–25, 7:1–24. 1037 Id. at 7:25, 8:1–25, 9:1–11. Further, Lorenzo Ellis testified that this $6,506.25 credit was calculated using the EP 1110 rates, whereas the value of the credit when utilizing the Blue Book rates is $38,534.65. Id. at 9:8–11. Following Mr. Ellis’ testimony, the Court advised the parties that it would utilize the EP 1110 rates. 1038 Id. at 9:20–25, 10:1–25, 11:1–6. As with the credit for crane hours, Lorenzo Ellis testified that this $67,881.17 credit was calculated using the EP 1110 rates, whereas the value of the credit when utilizing the Blue Book rates is $104,792.60. Id. at 11:1–6. Following Mr. Ellis’ testimony, the Court advised the parties that it would utilize the EP 1110 rates. 1034 143 Case 8:17-cv-01932-CEH-AAS Document 262 Filed 01/28/21 Page 144 of 192 PageID 44948 In deciding the claims and defenses tried by GLF and FEDCON in this action, the Court applies the “preponderance of the evidence” standard. This standard is defined as “[t]he greater weight of the evidence . . . [a] superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.” Lowery v. Ala. Power Co., 483 F.3d 1184, 1209 (11th Cir. 2007) (alterations in original) (quoting Black’s Law Dictionary 1220 (8th ed. 2004)). “The burden of showing something by a preponderance of the evidence, the most common standard in the civil law, simply requires the trier of fact to believe that the existence of a fact is more probable than its nonexistence before he may find in favor of the party who has the burden to persuade the judge of the fact’s existence.” Concrete Pipe & Prods. Of Ca., Inc. v. Constr. Laborers Pension Tr. For S. Cal., 508 U.S. 602, 622 (1993) (internal quotation marks and alterations omitted). The preponderance of the evidence standard is “not a high standard of proof,” but “[i]t is not, however, a toothless standard either,” and a district court may not abdicate its responsibility to ensure that the party prosecuting the action meets this standard before ruling. United States v. Askew, 193 F.3d 1181, 1193 (11th Cir. 1999) (quoting United States v. Lawrence, 47 F.3d 1559, 1566 (11th Cir. 1995)). ii. Florida Law Although this action was brought, in part, under the Miller Act, Florida law governs whether FEDCON materially breached the subcontract agreements. See United States for Use & Benefit of Seminole Sheet Metal Co. v. SCI, Inc., 828 F.2d 671, 675 (11th Cir. 1987). The parties agree that Florida law applies to the issues of this case. “For a breach of contract claim, Florida law requires the plaintiff to plead and establish: (1) the existence of a contract; (2) material breach of that contract; and (3) damages resulting from the breach.” Vega v. T-Mobile USA, Inc., 564 F.3d 144 Case 8:17-cv-01932-CEH-AAS Document 262 Filed 01/28/21 Page 145 of 192 PageID 44949 1256, 1272 (11th Cir. 2009) (quoting Friedman v. N.Y. Life Ins. Co., 985 So. 2d 56, 58 (Fla. 4th DCA 2008)). “To constitute a vital or material breach, a party’s nonperformance must ‘go to the essence of the contract.’” MDS (Can.) Inc. v. Rad Source Techs., Inc., 720 F.3d 833, 849 (11th Cir. 2013) (quoting Beefy Trail, Inc. v. Beefy King Int’l, Inc., 267 So. 2d 853, 857 (Fla. 4th DCA 1972)). B. GLF’s Breach of Contract Claims i. 2.2 Project and 1.2a Project In Counts I and II of its complaint for the 2.2 Project (Case No. 8:17-cv-2650-T-36TGW), GLF asserts claims for breach of contract and liability under the Miller Act. The Miller Act claims are discussed below. Relevant here, GLF alleges that FEDCON “failed to timely and properly design, engineer, construct and maintain the temporary access road and work platforms in conformance with the requirements” of the 2.2 Project Subcontract Agreement and the 2.2 Prime Contract requirements and that FEDCON “failed to construct temporary flood protection in a manner that would allow the work to proceed as permitted by” the Corps. GLF II, Doc. 1 ¶24. Regarding the May 27, 2016 termination of the 2.2 Project Subcontract Agreement, GLF alleges “FEDCON had not prepared the required engineered plan for providing access and a work platform for the work” or “actually constructed either the access road or the work platform.” Id. at ¶35. GLF also alleges that it submitted requests for equitable adjustment “for each of the claims for additional costs incurred” by GLF resulting from FEDCON’s failures to comply with the requirements of the 2.2 Project Subcontract Agreement. Id. at ¶36. In its breach of contract claim, GLF alleges that FEDCON materially breached the 2.2 Project Subcontract Agreement “by failing to compensate GLF for the additional costs incurred due to FEDCON’s failures to comply with” the requirements of the 2.2 Project Subcontract 145 Case 8:17-cv-01932-CEH-AAS Document 262 Filed 01/28/21 Page 146 of 192 PageID 44950 Agreement, thereby resulting in “additional costs” incurred by GLF. Id. at ¶49. GLF also alleges that FEDCON materially breached the 2.2 Project Subcontract Agreement by “impacting [GLF’s] ability to timely perform the work through its active interference with [GLF’s] performance thereby causing [GLF] to incur additional costs in the performance” of its work. Id. at ¶50. GLF additionally alleges that “FEDCON further materially breached the [2.2 Project Subcontract Agreement] by improperly default terminating the [2.2 Project Subcontract Agreement] due to its failure to perform the contractually required predecessor work,” thereby making GLF’s work unavailable. Id. at ¶51. In GLF’s operative complaint for the 1.2a Project (Case No. 8:17-cv-1932-T-36AAS), GLF alleges that FEDCON materially breached the 1.2a Project Subcontract Agreement by: (1) failing to compensate GLF for the additional costs incurred due to FEDCON’s failures to comply with the requirements of the 1.2a Project Subcontract Agreement, thereby resulting in additional costs incurred by GLF; and (2) impacting GLF’s ability to timely perform the work through its active interference with GLF’s performance, thereby causing GLF to incur additional costs in performing the work. Doc. 38 ¶¶41–42. 1. Access Roads The Court begins with GLF’s claims for the access roads on the 1.2a Project and the 2.2 Project. For the reasons set forth below, GLF has demonstrated, by a preponderance of the evidence, that FEDCON materially breached the subcontract agreements with respect to the access roads. In the complaints for each action, GLF alleges that FEDCON materially breached the respective subcontract agreements by failing to compensate GLF for the additional costs incurred due to FEDCON’s failures to comply with the requirements of the respective subcontract 146 Case 8:17-cv-01932-CEH-AAS Document 262 Filed 01/28/21 Page 147 of 192 PageID 44951 agreement, thereby resulting in additional costs. Thus, the Court construes this claim as alleging that FEDCON materially breached the subcontract agreements by failing to compensate GLF for the costs incurred as a result of FEDCON’s failure to construct and provide the access roads under the terms of the subcontract agreements. GLF also alleges in its complaints for each action that FEDCON materially breached the subcontract agreements by impacting GLF’s ability to timely perform the work through its active interference with GLF’s performance, thereby causing GLF to incur additional costs in the performance of the work. As such, the Court also construes this claim as alleging that FEDCON materially breached the subcontract agreements by actively interfering with GLF’s performance, through its conduct with the access roads, which impacted GLF’s timely performance of the work and caused GLF to incur additional costs in the performance of the work. Florida law requires GLF to plead and establish (1) the existence of a contract; (2) the material breach of that contract; and (3) damages that resulted from the breach. Vega, 564 F.3d at 1272. “To constitute a vital or material breach, a party’s nonperformance must ‘go to the essence of the contract.’” MDS (Can.) Inc., 720 F.3d at 849. Here, the parties stipulate that the 2.2 Project Subcontract Agreement and the 1.2a Project Subcontract Agreement are valid and enforceable contracts. Initially, the Court is not persuaded that FEDCON’s failure to reimburse GLF for the access road costs goes to the essence of the subcontract agreement but, regardless, actively interfering with another party’s performance undoubtedly goes to the essence of the contract, as it prevents that party from performing its contractual obligations. Before the Court turns to such active interference, however, it examines Paragraph 10.B and Paragraph 13.B. 147 Case 8:17-cv-01932-CEH-AAS Document 262 Filed 01/28/21 Page 148 of 192 PageID 44952 GLF has asserted that it brought its access road claims under Paragraph 13.B, while FEDCON has consistently maintained that Paragraph 10.B and 13.B work together. In its Order on summary judgment, when discussing crane mats, the Court declined to conclude whether Paragraph 10.B or 13.B served as the proper avenue for recovery. Doc 177 at 41. Paragraphs 10.A and 10.B fall under the heading “Changes/Claims.” Docs. 216-116 at 5; 216-132 at 5. Paragraph 10.B provides: Any claim of the Subcontractor for adjustment for changes in the Work or for additional time or compensation must be made in writing and delivered to the Contractor within ten (10) days from the date of receipt by the Subcontractor of the notification of a change or of the requirements to perform specific Work or from the date of the event that gives rise to the claim for additional time or compensation, unless the Contractor grants in writing an additional period of time before the date of final payment under this Subcontract Agreement. If the Owner or the parties fail to agree upon the adjustment to be made, the dispute shall be determined as provided in Paragraph 13 hereof; but nothing provided in this clause shall excuse the Subcontractor from proceeding with the prosecution of the Work as changed or as directed or required by the Contractor. The Subcontractor shall proceed with prosecution of the Work which is the subject of a claim or dispute under this paragraph. Docs. 216-116 at 5–6; 216-132 at 5–6 (emphasis added). For context, Paragraph 10.A, generally, addresses changes in the work by the Contractor or the Owner. As shown above, Paragraph 10.B then requires any “claim” of GLF “for adjustment for changes in the Work or for additional time or compensation” to be made in writing and delivered to FEDCON “within ten (10) days from the date of receipt by [GLF] of the notification of a change or of the requirement to perform specific Work or from the date of the event that gives rise to the claim for additional time or compensation,” unless FEDCON grants additional time. Docs. 216-116 at 5; 216-132 at 5. Paragraph 10.B previously addressed only claims “for adjustment for changes in the Work,” consistent with the provisions of Paragraph 10.A, but, as 148 Case 8:17-cv-01932-CEH-AAS Document 262 Filed 01/28/21 Page 149 of 192 PageID 44953 evident from the face of the subcontract agreements, the parties amended Paragraph 10.B to include claims for adjustment for additional time or compensation, too. On the other hand, Paragraphs 13.A and 13.B fall under the heading “Disputes.” Docs. 216-116 at 7; 216-132 at 7. Paragraph 13.B provides: Any claim arising out of or related to the Subcontract Agreement, other than those subject to Paragraph 13A, above, shall be submitted to the Contractor for an initial decision in its sole discretion. Thereafter, should the Subcontractor disagree with the Contractor’s decision, such claim shall be subject to non-binding mediation, to be held in Orange County, Florida, as a condition precedent to the institution of legal or equitable proceedings by either party. The parties will endeavor to resolve their claims by mediation which, unless the parties agree otherwise, shall be in accordance with the Construction Industry Mediation Rules of the American Arbitration Association currently in effect. No legal or equitable proceeding may be filed until the conclusion of the mediation process and the Subcontractor agrees that it will stay any such proceeding that is instituted until the completion of the mediation. 216-116 at 7; 216-132 at 7. 1039 Thus, Paragraph 13.B provides that any claim that arises out of or relates to the Subcontract Agreement, aside from those subject to Paragraph 13.A, must be submitted to FEDCON for an initial determination in FEDCON’s sole discretion. 1040 Paragraph 13.B does not provide a definition for “claim,” and construing the definition for “claim” under Paragraph 13.A as applying to Paragraph 13.B would render Paragraph 13.B nonsensical, as it would require the Contractor to make an initial decision, and thereafter submit to non-binding mediation if necessary, for claims for which the Owner was responsible. However, at the same time, Paragraph 10.B requires claims 1039 The parties agreed to waive the pre-suit mediation requirement. Doc. 83 at 16 n.2. In turn, Paragraph 13.A of the Subcontract Agreement states that the “contractual remedial procedure described in Section 00700 – Contract Clauses, 52.233-1 Disputes. (Jul 2002) of the Prime Contract relating to claims for which the Owner may be responsible is specifically incorporated” into each Subcontract Agreement by reference and made a part thereto. Id. (emphasis added). Section 00700 – Contract Clauses, 52.233-1 provides a mechanism for FEDCON to submit claims to the Corps. See Doc. 216-8 at 3–5. Paragraph 13.A states that “[t]he term ‘claim’ as utilized in this paragraph shall include any request for monetary or other relief, claim, appeal, or action arising from the subcontractor for which the Owner has, or may have responsibility.” Doc. 216-116 at 7. 1040 149 Case 8:17-cv-01932-CEH-AAS Document 262 Filed 01/28/21 Page 150 of 192 PageID 44954 for adjustment in the Work or for additional time or compensation to be made in writing to FEDCON. Thus, there are two competing provisions for claim submission. Courts are required to “read provisions of a contract harmoniously in order to give effect to all portions thereof.” City of Homestead v. Johnson, 760 So.2d 80, 84 (Fla. 2000). “The goal of contract interpretation is to arrive at a reasonable interpretation of the text in order to accomplish its stated meaning and purpose.” Walsh v. Walsh, 262 So. 3d 212, 216 (Fla. 5th DCA 2018). The Court construes Paragraph 10.B as pertaining to those claims of GLF for adjustments for changes in the work, and the Court construes “additional time or compensation” therein as pertaining to those claims for additional time or compensation arising from changes in the work. The recognition that Paragraph 10.B directs parties who fail to agree to follow the procedure specified in Paragraph 13 supports this interpretation, thereby identifying Paragraph 13 as a separate, rather than an identical, mechanism. The access road claim submitted by GLF was not based on a change in work, but costs that it incurred as a result of FEDCON’s failure to provide certain predecessor work. GLF timely filed that claim under Paragraph 13.B. Next, the Court concludes that FEDCON materially breached the subcontract agreements by actively interfering with GLF’s performance. Actively interfering with another party’s performance goes to the essence of the contract. Here, the evidence shows that FEDCON failed to construct and provide the access roads in accordance with the requirements of the subcontract agreements and the prime contracts. The Court concludes that Section 04.B of EM 385-1-1 is applicable. “Under Florida law, contract interpretation begins with plain meaning of words used, and words are ‘to be given their natural, ordinary meaning.” Hirsch v. Jupiter Golf Club LLC, 232 F. Supp. 3d 1243, 1251 (S.D. Fla. 2017) (quoting Ferox, LLC v. ConSeal Int’l, Inc., 175 F. Supp. 3d 1363, 1371 (S.D. Fla. 2016)). “In order to determine the common usage or ordinary meaning 150 Case 8:17-cv-01932-CEH-AAS Document 262 Filed 01/28/21 Page 151 of 192 PageID 44955 of a term, courts often turn to dictionary definitions for guidance.” CBS Inc. v. PrimeTime 24 Joint Venture, 245 F.3d 1217, 1223 (11th Cir. 2001). “Where the contract is unambiguous, it must be interpreted in accordance with its plain meaning so as to give effect to the contract as a whole.” Id. “The goal of contract interpretation is to arrive at a reasonable interpretation of the text in order to accomplish its stated meaning and purpose.” Walsh, 262 So. 3d at 216. As detailed above, the subcontract agreements provide that “others” must construct and maintain “a temporary access road approximately 12’ wide and extending the length of the levee, located adjacent to the temporary work platform on the protected side of the levee.” Docs. 216117 at 2; 216-132 at 17. “Access” is defined, in relevant part, as: “permission, liberty, or ability to enter, approach or pass to and from a place or to approach or communicate with a person or thing”; “a way or means of entering or approaching.” Merriam-Webster Dictionary, Access, https://www.merriam-webster.com/dictionary/access (last visited January 14, 2021). “Temporary” is defined as: “lasting for a limited time.” Merriam-Webster Dictionary, Temporary, https://www.merriam-webster.com/dictionary/temporary (last visited January 14, 2021). Thus, the Court construes the subcontract agreements as requiring “others” to provide roads, lasting for a limited time, for the purpose of entering or approaching. The parties stipulate that EM-385-1-1 is part of the “Contract Documents.” Section 04.B addresses “[a]ccess/haul roads” and requires such roads to be “designed in accordance with current engineering criteria.” Doc. 216-83 at 1. The Court interprets Section 04.B as applying to both “access roads” and “haul roads”, as “access roads” and “haul roads” are referred to separately therein. See id. at 2 (“No employer shall move, or cause to be moved, any equipment or vehicle upon an access or haul road . . . . .”). Thus, Section 04.B, which is part of the “Contract Documents,” governs “access roads.” The subcontract agreements call for the provision of “access 151 Case 8:17-cv-01932-CEH-AAS Document 262 Filed 01/28/21 Page 152 of 192 PageID 44956 roads.” The Court discerns no logical basis for why the temporary nature of the access roads in the subcontract agreements renders such roads anything other than access roads. A reasonable interpretation is that Section 04.B governs these “access roads.” Further, “Haul” is defined, in relevant part, as “to cause (something) to move by pull or drawing: to exert traction on”; “to transport in a vehicle.” Merriam-Webster Dictionary, Haul, https://www.merriam- webster.com/dictionary/haul (last visited January 14, 2021). The testimony demonstrated that the access roads were needed for the delivery of materials. Section 04.B applies to the temporary access roads. 1041 Having determined that EM 385-1-1 is applicable to the temporary access roads, GLF has demonstrated, by a preponderance of the evidence, that the access roads were neither engineered nor sufficient for their intended purpose. The Court construes the underlying premise of GLF’s claim here as the contention that FEDCON “actively interfered” with GLF’s performance when it failed to perform the predecessor work. The Court begins with the testimony of Mr. Lourie and Mr. Hull. The testimony of Mr. Lourie is not particularly persuasive in light of the limited scope of his visit. However, the testimony of Mr. Hull is credible due to his familiarity with temporary facilities and the similar 4.2 Project. As discussed above, Mr. Hull opined, among other things, that the temporary access roads were entirely insufficient for supporting pipe and pile installation or for supporting the vehicles and intended equipment. The evidence demonstrates that, although FEDCON explored engineering solutions for the access roads, the roads were not engineered. David Boland was not aware of FEDCON engaging an engineer to develop the design for the 1041 Although David Boland testified that Section 27.F of EM 385-1-1, addressing “Structural Steel Assembly,” is applicable instead, he did not persuasively explain that driving piling into the ground constituted material being “erected.” And the Court does not discern any basis for why this section should apply instead of the Section 04.B, which directly addresses access roads. The credibility of Mr. Boland’s testimony is also undercut by the recognition that FEDCON did not advise GLF of the purported applicability of Section 27.F to access roads during either project. 152 Case 8:17-cv-01932-CEH-AAS Document 262 Filed 01/28/21 Page 153 of 192 PageID 44957 temporary access roads. Evidence admitted at trial demonstrated that FEDCON knew that the access roads were insufficient for their purpose, such as Hildebrandt’s recognition that the roads had “held up poorly to construction traffic.” Doc. 219-793 at 1. FEDCON ultimately determined that the recommended engineering upgrades from Mr. Hornsby and Burns Cooley Dennis were cost-prohibitive. Even when FEDCON issued change orders to HDB to perform some reconstruction on the access roads, the solution proposed by Mr. Hornsby called for twice as much as what FEDCON provided. Early on in both projects, GLF personnel emphasized to FEDCON the importance of access, but to no avail: as testified by Ellis, GLF was impacted by the conditions of the temporary access roads on both projects through its termination on the 2.2 Project on May 27, 2016, and through completion of its work on the 1.2a Project in October 2016. The evidence also demonstrates that there were days when GLF could not work because of the conditions of the access roads. The design of the roads even impacted HDB’s maintenance obligation. Consequently, GLF incurred idle equipment and manpower costs on days when its personnel should have been able to work, but for the roads being impassible and FEDCON not allowing access. Thus, by a preponderance of the evidence, GLF has shown that FEDCON failed to provide the access roads in accordance with the subcontract agreements. GLF has also demonstrated, by a preponderance of the evidence, that it incurred damages as a result. The testimony and evidence outlined above, including the testimony of Ellis and the accompanying documentation, highlights the incurred damages. But, this does not end the analysis. GLF’s assertion that FEDCON actively interfered through its conduct and actions related to the access roads dovetails into a review of the no-damages-for-delay provision of the subcontract agreements, located at Paragraph 12.B, which provides: 153 Case 8:17-cv-01932-CEH-AAS Document 262 Filed 01/28/21 Page 154 of 192 PageID 44958 The Subcontractor expressly agrees that the Contractor shall not be liable to the Subcontractor for any damages or additional costs, whether foreseeable or unforeseeable, resulting in whole or in part from a delay, hindrance, suspension, or acceleration of the commencement of the Work, caused in whole or in part by the acts or omissions, whether negligent or not, of the Contractor, its agents, employees, or any third parties acting on behalf of the Contractor, including other Subcontractors or material suppliers to the Project. The Subcontractor’s sole remedy for any such delay, hindrance, suspension, or acceleration shall be a noncompensable time extension. However, in the event of delays, suspensions, or disruptions of the Work caused by third parties acting on behalf of the Contractor, the Contractor shall endeavor to recover damages from said Contractor’s third parties and the Subcontractor shall be entitled to its share of such amounts, to the extent the Contractor recovers and/or receives monies from the responsible party, and the Subcontractor shall be provided an extension of time if so recovered. Docs. 216-116 at 7; 216-132 at 7. Florida law provides that “no damage for delay clauses” are “valid, enforceable, and not in violation of public policy.” Marriot Corp. v. Dasta Constr. Co., 26 F.3d 1057, 1067 n.17 (11th Cir. 1994) (collecting cases). Although Florida courts recognize these clauses in construction cases, courts will not allow such a clause to bar recovery where “the delays were occasioned by the contractor’s fraud, concealment, or active interference with the subcontractor’s performance under the contract.” United States v. David Boland, Inc., No. 6:05-cv-549-Orl-19JGG, 2006 WL 2683304, at *3 (M.D. Fla. Sept. 18, 2006) (collecting cases); see also Marriot Corp., 26 F.3d at 1067–68 (stating that Florida law would not allow the no damage for delay clause to bar recovery if the delays were occasioned by fraud, concealment, or active interference); Newberry Sq. Dev. Corp. v. S. Landmark, Inc., 578 So. 2d 750, 752 (Fla. 1st DCA 1991) (providing that a no damages for delay clause does not preclude recovery for delays resulting from fraud, concealment, or active interference with performance under the contract). “These exceptions of the no damages clause are generally predicated upon an implied promise and obligation not to hinder or impede performance.” Newberry Sq. Dev. Corp., 578 So. 2d at 752. “Active interference may be 154 Case 8:17-cv-01932-CEH-AAS Document 262 Filed 01/28/21 Page 155 of 192 PageID 44959 characterized as a ‘knowing delay’ which is ‘sufficiently egregious.’” David Boland, Inc., 2006 WL 2683304, at *4 (M.D. Fla. Sept. 18, 2006). Therefore, under Paragraph 12.B, GLF agreed that FEDCON would not be liable to GLF for any damages or additional costs, whether foreseeable or not, resulting in whole or in part from “a delay, hindrance, suspension, or acceleration of the commencement or execution of the Work,” caused in whole or in part by the acts or omissions of FEDCON or its agent. A “delay” is defined as “the act of postponing, hindering, or causing something to occur more slowly.” MerriamWebster Dictionary, Delay, https://www.merriam-webster.com/dictionary/delay (last visited January 22, 2021). “Hindrance” is defined, in relevant part, as “the state of being interfered with, held back, slowed down: the state of being hindered,” Merriam-Webster Dictionary, Hindrance, https://www.merriam-webster.com/dictionary/hindrance (last visited January 22, 2021), and “hindered,” in turn, is defined as “to make slow or difficult the progress of: hamper,” or to “hold back: prevent, check.” Merriam-Webster Dictionary, Hinder, https://www.merriam- webster.com/dictionary/hinder (last visited January 22, 2021). As Mr. Ellis testified, the access road claims pertain to costs that GLF incurred for its idle equipment and manpower on days when its personnel should have been able to work, but for the road being impassible and FEDCON not allowing access. As such, GLF seeks damages as a result of FEDCON’s failure to provide the access roads. These damages fall squarely within the language of Paragraph 12.B because GLF is seeking damages or additional costs that it incurred, in whole or in part, from being hindered in the work, as the unavailability of the access roads slowed down the work and hampered GLF’s performance. Although the Court finds Mr. Brannon’s testimony to be credible, the Court does not find his conclusion that GLF’s claims constitute “disruption” 155 Case 8:17-cv-01932-CEH-AAS Document 262 Filed 01/28/21 Page 156 of 192 PageID 44960 claims rather than delay claims to be credible, as the determination of whether Paragraph 12.B bars a claim involves a legal analysis, including examination of the contractual language. However, GLF will recover because the evidence demonstrated active interference by FEDCON. The evidence demonstrates a “knowing delay” on behalf of FEDCON that was “sufficiently egregious.” The design for the roads was clearly insufficient. Further, even though Section 04.B of EM-385-1-1 applied, the roads were not engineered. The poor condition of roads consistently prevented work. FEDCON sometimes shut down the roads when it rained. Recognizing the issues posed by the poor design, FEDCON explored engineering solutions. But, despite working with engineers to develop potential solutions and FEDCON personnel sharing their own ideas for improvements of the roadways, FEDCON did not take any action. In some instances, FEDCON personnel represented that the roadways were acceptable. Despite all of these issues and FEDCON’s engagement of engineers, FEDCON ultimately decided not to perform any of the recommended upgrades because of costs. Even the replacement contractor was impacted by FEDCON’s failure to properly construct and maintain the roadways. Therefore, because the evidence demonstrates active interference, GLF will recover its damages, despite the damages falling within the language of Paragraph 12.B. Finally, GLF seeks $614,487.74 for the 1.2a Project and $768,591.49 for the 2.2 Project. GLF has provided a wealth of supporting documentation and evidence, including the testimony of Lorenzo Ellis, who prepared the claim. The Court finds Mr. Ellis’ testimony regarding the preparation of the claim to be credible. Mr. Brannon also testified that the claim was reasonable based on his experience. Although there may be some difficulty proving the exact amount of damages here, it is clear that substantial damages were suffered and a reasonable basis in the 156 Case 8:17-cv-01932-CEH-AAS Document 262 Filed 01/28/21 Page 157 of 192 PageID 44961 evidence exists for awarding the damages. Centex-Rooney Constr. Co., Inc. v. Martin Cnty., 706 So. 2d 20, 28 (Fla. 4th DCA 1997). Therefore, the Court will award GLF $614,487.14 for the 1.2a Project and $768,591.49 for the 2.2 Project, subject to the $67,881.17 reduction identified by Mr. Ellis. 2. Work Platforms GLF also claims that FEDCON failed to provide the contractually required work platform on the 2.2 Project and the 1.2a Project. This claim fails because the damages are barred by the nodamages-for-delay provision of the subcontract agreements. The Court construes these claims as alleging that FEDCON materially breached the subcontract agreements by failing to compensate GLF for the costs incurred as a result of FEDCON’s failure to provide the contractually required work platforms to GLF. The Court also construes the claims as alleging that FEDCON materially breached the subcontract agreements by actively interfering with GLF’s performance, through its conduct regarding the provision of the work platforms, which impacted GLF’s timely performance of the work and caused GLF to incur additional costs in the performance of the work. To succeed in establishing a breach of contract claim under Florida law, GLF must plead and establish (1) the existence of a contract; (2) the material breach of that contract; and (3) damages that resulted from the breach. Vega, 564 F.3d at 1272. The parties stipulate that both subcontract agreements are valid and enforceable. Even if the Court assumes that FEDCON materially breached the subcontract agreements by failing to compensate GLF for the costs incurred as a result of FEDCON’s failure to provide the contractually required work platforms or by impacting GLF’s timely performance of the work by actively interfering with GLF’s performance, through its conduct regarding the contractually required work platforms, the 157 Case 8:17-cv-01932-CEH-AAS Document 262 Filed 01/28/21 Page 158 of 192 PageID 44962 damages for this claim fall within the no-damages-for-delay provision of the subcontract agreements. This claim is barred by Paragraph 12.B because GLF is seeking to recover damages or additional costs that it incurred as a result of being postponed, held back, slowed down, or otherwise prevented from performing the work. Mr. Ellis testified that FEDCON’s failure to provide a compacted work platform to GLF under the requirements of the subcontract agreements resulted in: (1) GLF incurring costs for the purchase of additional crane mats; and (2) GLF incurring additional labor time to remove the crane mats from the muddy surface of the work platform and move them ahead of the crane to allow for continued operations. The work platforms held water, and the crane mats would sink into the mud. Mr. Ellis testified that the process of moving crane mats took as many as three or three and one-half hours and prevented the cranes from driving pile or pouring concrete, as they were actively engaged in moving the crane mats instead. Mr. Ellis further testified that each claim relating to the work platforms includes $135,000 for 90 additional crane mats and he represented that the remaining amount accounts for crew moving the mats when they should have been engaged in other activity. Further, when discussing the equipment charges, Mr. Ellis explained that equipment sat idly while GLF moved the crane mats. Therefore, the damages or additional costs result from a delay or hindrance to the execution of the work caused by FEDCON. Although GLF may avoid the language of Paragraph 12.B if the evidence demonstrates active interference by FEDCON, the evidence does not demonstrate any active interference. While the work platforms were clearly not sufficient for their intended purpose, there is no evidence that FEDCON actively interfered to prevent GLF’s work. 158 Case 8:17-cv-01932-CEH-AAS Document 262 Filed 01/28/21 Page 159 of 192 PageID 44963 Therefore, because the damages sought here are barred by the no-damages-for-delay provision of the subcontract agreements and the evidence does not demonstrate any active interference by FEDCON, GLF will not recover for these claims. 3. Availability of Two Work Fronts to GLF The Court next turns to GLF’s claims regarding FEDCON’s failure to make two work fronts available on both the 2.2 Project and the 1.2a Project. This claim fails because the damages are barred by the no-damages-for-delay provision of the subcontract agreements. The Court construes the claims as alleging that FEDCON materially breached the subcontract agreements by failing to compensate GLF for the costs incurred as a result of FEDCON’s failure to provide two work fronts to GLF. The Court also construes the claims as alleging that FEDCON materially breached the subcontract agreements by actively interfering with GLF’s performance, through its conduct regarding the availability of two work fronts, which impacted GLF’s timely performance of the work and caused GLF to incur additional costs in the performance of the work. As set forth above, GLF must plead and establish (1) the existence of a contract; (2) the material breach of that contract; and (3) damages that resulted from the breach. Vega, 564 F.3d at 1272. The parties stipulate that both subcontract agreements are valid and enforceable. Even if the Court assumes that FEDCON materially breached the subcontract agreements by failing to compensate GLF for the costs incurred as a result of FEDCON’s failure to provide two work fronts or by impacting GLF’s timely performance of the work by actively interfering with GLF’s performance, through its conduct regarding the availability of two work fronts, the damages for this claim fall within the no-damages-for-delay provision of the subcontract agreements. 159 Case 8:17-cv-01932-CEH-AAS Document 262 Filed 01/28/21 Page 160 of 192 PageID 44964 As Mr. Ellis testified, GLF styles the claim as one resulting from FEDCON’s failures to perform the predecessor activities, thereby preventing GLF from performing work on one or both work fronts. Mr. Ellis described the damages as claims for idle manpower and equipment because there were several months during the projects where one or both of the work fronts were unavailable to GLF and, consequently, GLF’s equipment and manpower was idle and incurring costs. Mr. Ellis also testified that FEDCON preferred to allow GLF to sit idly rather than paying for rip rap or dirt to keep the job moving ahead. This decision even led to GLF paying HDB to conduct degrading work for the purpose of keeping the job moving. Mr. Ellis testified that GLF was “bleeding” with “all this idle equipment and idle time” and was “doing anything [it] could to keep moving.” Testimony of Lorenzo Ellis, Doc. 240 at 146:7–9. Therefore, GLF brings this claim for idle manpower and equipment costs that it incurred as a result of work it was unable to perform due to FEDCON’s failure to perform the predecessor activities. This claim falls within the language of Paragraph 12.B because GLF is seeking to recover damages that it incurred as a result of being held back, slowed down, or otherwise prevented from performing the work. Of course, GLF may avoid the language of Paragraph 12.B if the evidence demonstrates active interference by FEDCON. However, the evidence does not demonstrate any active interference. While the evidence demonstrates that FEDCON may have failed to perform certain predecessor work, there is no evidence that this failure constitutes active interference sufficient to bar the claim. Unlike the access road issue, in which FEDCON recognized the horrendous condition of the access roads resulting from the poor design and lack of engineering, actively engaged engineers, and subsequently refused to implement an engineering solution, the evidence here simply shows that FEDCON may not have developed a plan to proceed during high river or hurricane season. Even if the Court assumes that there was no high river condition or other 160 Case 8:17-cv-01932-CEH-AAS Document 262 Filed 01/28/21 Page 161 of 192 PageID 44965 impediment to GLF’s ability to perform the work, as GLF has argued, the evidence does not demonstrate active interference by FEDCON. Therefore, because the damages sought here are barred by the no-damages-for-delay provision of the subcontract agreements and the evidence does not demonstrate any active interference by FEDCON, GLF will not recover for these claims. ii. Remaining 2.2 Breach of Contract Claims 1. AZ Materials and PZ Materials As discussed, the parties have stipulated to GLF’s entitlement to receive payment of the reasonable costs that it incurred in its efforts to drive the AZ steel sheet piling materials for 38 days before FEDCON’s decision not to proceed with the AZ materials, switch to the specified PZ materials, and remove the AZ materials. Further, the parties stipulate that FEDCON prepared and submitted a recovery schedule that revised the sequencing and logic for the work activities and reflected a revised plan to complete within the prime contract duration. The parties also agree that these revisions mitigated a portion of the prior delays to the 2.2 Project and all of the delays associated with the change from AZ steel sheet piling to PZ steel sheet piling. FEDCON has stipulated that it will pay GLF the reasonable costs associated with attempts to drive and remove the AZ material. As part of the stipulation, FEDCON has objected to portions of GLF’s costs. Therefore, the Court must determine the proper amount of this claim. GLF’s AZ-PZ claim is in the amount of $469,453.06, which includes GLF’s direct costs of labor, equipment, supervision, and reasonable mark-up, in connection with GLF’s attempts to drive the AZ materials and FEDCON’s subsequent direction to remove and stack the AZ materials. Although Mr. Ellis did not prepare this claim, he was involved in gathering information for the 161 Case 8:17-cv-01932-CEH-AAS Document 262 Filed 01/28/21 Page 162 of 192 PageID 44966 claim, he provided input for the claim, and he reviewed the claim. The Court generally finds Mr. Ellis’ testimony regarding the details of this claim to be credible. FEDCON contends that this claim must be reduced to only $139,801.80. First, David Boland testified that this claim should be reduced because, in preparing this claim, GLF utilized Blue Book equipment rates for the equipment, rather than EP 1110 rates. The Court agrees. Mr. Ellis testified that the equipment rates in this claim “are Blue Book rates.” Testimony of Lorenzo Ellis, Doc. 240 at 173:18–25. A review of the claim reveals that Blue Book rates are included in the supporting materials for the claim. See generally Doc. 218-772. However, the Court previously advised that it would utilize the EP 1110 rates. Thus, GLF’s use of the Blue Book rates in calculating this claim is improper. GLF has not provided any EP 1110 rates for this claim. The total cost of equipment included in this claim is $198,754.35. Mr. Boland testified that Blue Book rates are three times higher than EP 1110 rates. Testimony of David Boland, Doc. 233 at 161:14– 25, 162:1–6. FEDCON submitted into evidence Mr. Boland’s adjustments, which he testified were in conformity with EP 1110, to the Blue Book equipment rates. Doc. 220-24 at 26–44. Mindful that the Court maintains “reasonable discretion” in making awards of damages in those instances where damages cannot be “precisely and mathematically determined,” John Hancock Mut. Life Ins. Co. v. Mark-A, Inc., 324 So. 2d 674, 674 (Fla. 2d DCA 1975), and in the absence of GLF’s provision of EP 1110 rates for this claim, the Court will substitute Mr. Boland’s equipment calculations for the Blue Book calculations utilized by GLF, with the exception of the week of 10/25/2014 – 11/1/2014, in which Mr. Boland inexplicably reduced all of GLF’s incurred costs to $0. The sum of equipment costs for this claim, as calculated by Mr. Boland, is $53,951.36. The Court adds $5,495.92 to this amount, which represents one-third of GLF’s claimed $16,487.75 162 Case 8:17-cv-01932-CEH-AAS Document 262 Filed 01/28/21 Page 163 of 192 PageID 44967 equipment costs for the week of 10/25/2014 – 11/1/2014. As such, the Court will award only $59,447.28 in equipment costs for this claim. Next, Mr. Boland testified, based on his review, that the labor claim amounts were not supported by GLF’s certified payrolls and should be reduced because the certified payrolls were more reliable than daily reports. This is the only claim in which FEDCON mentioned looking to certified payrolls and challenged labor on the basis of certified payrolls. Mr. Boland conceded that the changes resulting from examination of the certified payrolls were “relatively minor.” Testimony of David Boland, Doc. 232 at 186:23. FEDCON has not sufficiently articulated, through testimony or otherwise, the basis for making reductions based on certified payrolls. As such, the Court declines to make any reductions based on certified payrolls. Third, to the extent that any damages resulting from the AZ-PZ substitution may be deemed damages under Paragraph 12.B, FEDCON’s unilateral substitution of the materials constitutes active interference, thereby allowing the claim to proceed. Finally, Mr. Boland testified that he eliminated the delay-related damages, such as extended field overhead amounts, on the basis of the “no damage for delay” clause in Paragraph 12.B. As mentioned above, the parties have stipulated that the revised schedule mitigated all of the delays associates with the change from AZ steel sheet piling to PZ steel sheet piling. Both Mr. Boland and Dr. Sist testified that delays attributed to FEDCON resulting from the use of the AZ materials were originally determined to be 45 days, but that revisions in the logic and sequencing in the schedule submitted by FEDCON reduced this delay by 39 days. However, Mr. Boland testified that the costs incurred by GLF during that over-thirty-day period constitute delay damages, notwithstanding the recognition that no delay resulted to the 2.2 Project. Testimony of David Boland, Doc. 233 at 164:14–22. Mr. Boland vaguely identified a “three-week period” when 163 Case 8:17-cv-01932-CEH-AAS Document 262 Filed 01/28/21 Page 164 of 192 PageID 44968 GLF purportedly “refused” FEDCON’s directive to remove the AZ piling materials, resulting in GLF not removing the AZ piling materials until the PZ materials arrived. In light of the parties’ stipulation, FEDCON’s failure to identify the specific “three-week period,” and FEDCON’s initial decision to substitute the AZ materials for the PZ materials, this argument fails. Thus, the Court will award GLF only $59,447.28 in equipment costs for this claim, which represents a $139,307.07 reduction in equipment costs as a result of the provided equipment costs conforming to Blue Book rates. Accordingly, the Court will award GLF a total of $330,145.99 for this claim. 2. Low Profile Work Here, GLF seeks its costs for the rental of the specialty equipment for use on the low profile work from March 1, 2015 through August 22, 2015, as well as costs for its preparation to perform the low profile work, including labor costs, equipment modification costs, and the costs of preparing the sheet and pipe pile materials. This claim fails because the damages are barred by the no-damages-for-delay provision of the subcontract agreements. As explained above, GLF alleges in its complaint for the 2.2 Project that FEDCON materially breached the 2.2 Project Subcontract Agreement by: (1) failing to compensate GLF for the additional costs incurred due to FEDCON’s failures to comply with the requirements of the 2.2 Project Subcontract Agreement, thereby resulting in additional costs; and (2) impacting GLF’s ability to timely perform the work through its active interference with GLF’s performance, thereby causing GLF to incur additional costs in the performance of the work. As such, the Court construes the breach of contract claim relevant to the low profile work as alleging that FEDCON materially breached the 2.2 Project Subcontract Agreement by: (1) failing to compensate GLF for the additional costs incurred as a result of FEDCON’s failure to comply with the requirements of the 164 Case 8:17-cv-01932-CEH-AAS Document 262 Filed 01/28/21 Page 165 of 192 PageID 44969 2.2 Project Subcontract Agreement for the low profile work; and (2) impacting GLF’s ability to timely perform the work through its active interference with GLF’s performance of the low profile work, which caused GLF to incur additional costs. Again, to establish a breach of contract claim under Florida law, GLF must show: (1) the existence of a contract; (2) material breach of that contract; and (3) damages resulting from the breach. Vega, 564 F.3d at 1272. Here, the parties agree that the 2.2 Project Subcontract Agreement is valid and enforceable. Next, even if the Court assumes that GLF has established, by a preponderance of the evidence, that FEDCON materially breached the 2.2 Project Subcontract Agreement by either failing to compensate GLF for the additional costs incurred as a result of FEDCON’s failure to comply with contractual requirements relative to the low profile work or by impacting GLF’s ability to timely perform the work through its active interference with GLF’s performance of the low profile work, the damages for this claim fall within the no-damages-fordelay provision of the 2.2 Project Subcontract Agreement. The central premise to this claim is that FEDCON failed to degrade the levee at Monolith 75 and Monolith 79 to elevation 8. Mr. Ellis testified that, although GLF had procured and modified the equipment and cut the materials, the equipment was idle throughout the spring and summer up until August 7, 2015, because FEDCON never degraded the levee to elevation 8. When the Mississippi River rose, none of the low profile work was able to begin after July 9, 2015. Consequently, according to Mr. Ellis, GLF was required to continue renting the specialty equipment for an extended period of time. Mr. Ellis testified that the claim is premised upon GLF’s costs for rental of the specialty equipment from March 1, 2015 through August 22, 2015, and for its preparation to perform the low profile work, with costs including labor costs, the costs of modifying the equipment, the costs of preparing the sheet pile and pipe pile materials, and the rent 165 Case 8:17-cv-01932-CEH-AAS Document 262 Filed 01/28/21 Page 166 of 192 PageID 44970 paid to the equipment suppliers for the specialty equipment required to perform the low profile pile driving work. Therefore, GLF brings this claim for the costs associated with the idle equipment as a result of work it was unable to perform due to FEDCON’s failure to perform the requisite predecessor work. This claim is barred by the language of Paragraph 12.B because GLF seeks to recover damages that it incurred as a result of being held back, slowed down, or otherwise prevented from performing the work. As previously stated, GLF may avoid the language of Paragraph 12.B if the evidence demonstrates active interference. However, the evidence does not show any active interference on behalf of FEDCON. While the evidence demonstrates that FEDCON did not degrade the levee, the evidence does not demonstrate that such failure rose to the level of active interference. For example, the evidence does not demonstrate that such failure constituted a ‘knowing delay’ which is ‘sufficiently egregious.’” David Boland, Inc., 2006 WL 2683304, at *4 (M.D. Fla. Sept. 18, 2006). “Bureaucratic bungling” is insufficient to overcome a no damages-fordelay clause. David Boland, Inc., 2006 WL 2683304, at *4. Accordingly, because Paragraph 12.B bars this claim and the evidence does not demonstrate active interference on behalf of FEDCON, GLF will not recover for this claim. 3. Multiple Material Handling Turning to GLF’s claim for multiple material handling, the parties agree that the only issue for the Court to resolve here is the amount of damages to award GLF. This claim was submitted to the Corps, and FEDCON negotiated and settled the claim with the Corps for $89,562.78, which FEDCON credited to GLF in its damage claim on the 2.2 Project. As previously explained, GLF has provided two summaries of damages, the latter in the amount of $111,953.47, which utilizes 166 Case 8:17-cv-01932-CEH-AAS Document 262 Filed 01/28/21 Page 167 of 192 PageID 44971 EP 1110 rates, rather than Blue Book rates. As such, the Court will treat this latter amount as GLF’s summary of damages for this claim. The damages for this claim span from April 26, 2015 through July 11, 2015. GLF has provided supporting materials and evidence, including the testimony of Mr. Ellis, who discussed the nature of the claim and the bases for the incurred costs. The Court finds Mr. Ellis’ testimony regarding the claim to be credible. Although there may be some difficulty proving the exact amount of damages here, it is clear that substantial damages were suffered and a reasonable basis in the evidence exists for awarding the damages. Centex-Rooney Constr. Co., 706 So. 2d at 28. FEDCON has countered that any additional recovery beyond the $89,562.78 amount should not be permitted because GLF did not provide information upon request. First, FEDCON has pointed to Paragraph 10.D, which provides: “All documentation or supporting data required by the Owner to substantiate any claim made by the Subcontractor shall be promptly furnished by the Subcontractor. The Subcontractor agrees to be responsible for the preparation, pursuit, and prosecution of its request for equitable adjustment and claims to the extent permitted . . . .” Doc. 216-116 at 6. Similarly, Paragraph 13.A, which pertains to claims for which the Owner may be responsible, provides that “[t]he Subcontractor agrees to be responsible for preparation and active prosecution of the claims to the extent permitted . . . .” Id. at 7. The evidence presented by FEDCON revealed only that FEDCON had requested information for substantiation purposes from GLF after GLF had submitted the claim. There is no evidence that the Owner required such information. Further, there is no evidence that GLF, by failing to provide such information to FEDCON, failed to prepare or pursue the claim. As such, this argument fails. Accordingly, the Court will award $111,953.47 to GLF for the multiple material handling claim. 167 Case 8:17-cv-01932-CEH-AAS Document 262 Filed 01/28/21 Page 168 of 192 PageID 44972 iii. Improper Termination and Directives to Proceed GLF alleges that FEDCON materially breached the 2.2 Project Subcontract Agreement by “improperly default terminating the [2.2 Project] Subcontract [Agreement] due to its failure to perform the contractually required predecessor work,” thereby making GLF’s work thereunder unavailable. GLF II, Doc. 1 ¶51. GLF has successfully established this claim. Florida law requires GLF to plead and establish: “(1) the existence of a contract; (2) material breach of that contract; and (3) damages resulting from the breach.” Vega, 564 F.3d at 1272. The parties agree that the 2.2 Project Subcontract Agreement is a valid contract. Turning to FEDCON’s material breach, the facts established above demonstrate that FEDCON failed to provide GLF with the contractually required predecessor work. GLF has argued that FEDCON’s performance of the predecessor work activities served as conditions precedent to GLF’s performance under the 2.2 Project Subcontract Agreement. Regardless of how the predecessor activities are labeled, the parties stipulate that, in accordance with FEDCON’s coordination and scheduling of the work to be performed by its subcontractors, construction of the access road, construction of the TFP, degrading of the levee, and construction of the work constituted predecessor work activities to GLF’s performance of its work activities. In turn, FEDCON contracted with HDB to perform this work. GLF has demonstrated, by a preponderance of the evidence, that FEDCON failed to perform predecessor work activities. The facts set forth above establish that, in the fall of 2015, FEDCON placed the Corps on notice of a differing site condition, which Mr. Boland identified as beginning at approximately Monolith 060 and continuing south to approximately Monolith 090 or Monolith 095. Specifically, “investigation into the layout of the work platform and access road” led FEDCON to conclude that the Chevron fence at water pipeline encroached into the temporary 168 Case 8:17-cv-01932-CEH-AAS Document 262 Filed 01/28/21 Page 169 of 192 PageID 44973 work area easement. Doc. 221-168 at 1–2. The Corps rejected FEDCON’s claim, advising that FEDCON was responsible for constructing the contract work within the project site’s physical limitations. When FEDCON thereafter advised GLF in November of 2015 that FEDCON was ready to proceed with the work at Monoliths 075 and 079, GLF emphasized that access had not been established under the 2.2 Project Subcontract Agreement. GLF had already demobilized, and the levee had not been degraded to elevation 8 at Monolith 075 or Monolith 079. FEDCON’s February 3, 2016 access plan, issued to GLF on February 10, 2016, pertained to access for Monoliths 072 through Monolith 118. This access plan provided that an engineer would be engaged to supply information regarding the design and construction of the work platform where the platform had less than a 3:1 slope and was less than 30 linear feet wide. Further, this access plan provided for use of K street, inside Chevron, for delivery of pipe piles, sheet piles, and rebar for portions of the work. The access plan therefore provided for a change to the work under the 2.2 Project Subcontract Agreement. On February 12, 2016, FEDCON directed GLF to mobilize and begin the work immediately, as the access road had been “upgraded” for access, the area “appropriately graded,” and the levee “degraded from Monolith 072 through Monolith 080.” However, Mr. Ellis and Mr. Boland identified Monolith 072 as being in the area where FEDCON had ended the access road at the work platform, leaving just the work platform. Indeed, the February 3 access plan provided that deliveries “will come from the north to the south on the combined work platform/temporary access road.” Doc. 217-178 at 3. However, as repeatedly emphasized, the 2.2 Project Subcontract Agreement required GLF to be provided with a temporary access road “approximately 12’ wide and extending the length of the levee, located adjacent to the temporary work platform on the protected side of the levee.” Doc. 216-117 at 1. And, although FEDCON has argued that GLF 169 Case 8:17-cv-01932-CEH-AAS Document 262 Filed 01/28/21 Page 170 of 192 PageID 44974 should have proceeded because GLF previously utilized a combined work platform and access road, the levee was not degraded to elevation 8 at Monolith 075. Thus, FEDCON was seeking to change the work in the 2.2 Project Subcontract Agreement, and the predecessor work under the 2.2 Project Subcontract Agreement had not been performed. When FEDCON directed GLF again to proceed with the work at work front two and advised that GLF was in default for failing to recommence the work on work front two, GLF again reiterated that the lack of access prevented GLF from proceeding. Indeed, FEDCON subsequently admitted that the access road extended only “to the work front” because the pipe bridges at Monolith 075 and Monolith 079 limited the available width to place the work platform and temporary access road. Doc. 222-42 at 2. Once the Corps recognized the differing site condition on April 7, 2016, FEDCON issued the April 11, 2016 letter. Therein, FEDCON directed GLF to proceed with the work at Monolith 072. However, as explained, FEDCON had not completed the predecessor work. This conclusion is further bolstered by the language of the April 11, 2016 letter. First, the letter explained that, from Monolith 072 to approximately Monolith 085, delivery of steel and pipe piles, concrete, and reinforcing steel would be delivered by way of a “temporary access road leading to the work front.” Doc. 217-130 at 2. Notably, this language does not specify whether the temporary access road would extend the length of the levee and be located adjacent to the temporary work platform, as called for in the 2.2 Project Subcontract Agreement. Second and relatedly, the April 11, 2016 letter stated that it “reiterated” the access plan that had been “previously provided,” presumably in reference to the February 3, 2016 access plan. Id. Thus, as the February 3, 2016 access plan had called for deliveries for Monolith 072 through Monolith 095 to be made on the “combined work platform/temporary access road,” the April 11, 2016 letter suggested the use of a combined work platform and access road. Third, the letter stated that access to equipment on the work fronts would 170 Case 8:17-cv-01932-CEH-AAS Document 262 Filed 01/28/21 Page 171 of 192 PageID 44975 be made by way of the temporary access road where it was adjacent to the work platform or by the temporary access road leading to the work platform. Significantly, the April 11, 2016 letter explained that a minimum 28 foot wide engineered work platform to support the construction operations and equipment would be provided where space limitations prevented the 30 foot wide work platform. David Boland testified that, by this letter, FEDCON committed to providing engineering where there was inadequate space. As such, FEDCON pursued engineering solutions through the First Terracon Report and the Revised Terracon Report. Under the April 11, 2016 letter, FEDCON would also take over responsibility for delivering the steel pipe piling to the work front for GLF to drive. FEDCON issued Change Order No. 15 in May of 2016. FEDCON did not send Change Order No. 15 to GLF for several days; GLF still had not received it when it responded to the Notice of Default on May 24, 2016. Change Order No. 15 directed GLF to recommence the work at Monolith 076, not Monolith 072, because the hurricane restriction would go into effect on June 1, 2016. However, the preponderance of the evidence demonstrates that, notwithstanding any subsequent modification of the 2.2 Project Subcontract Agreement, FEDCON had not performed the predecessor work activities at Monolith 076, either. The 2.2 Project Subcontract Agreement required the two temporary work platforms, another component of the predecessor work, to be located “on the protected side of the levee” and “approximately 30’ wide x 600’ long, located 10’ from the centerline of the steel sheet pile . . . .”Id. Words must be given their natural, ordinary meaning in determining the plain meaning of words in the course of contract interpretation. Hirsch, 232 F. Supp. 3d at 1251. Courts often use dictionary definitions for guidance to determine common usage or ordinary meaning of a term. CBS Inc., 245 F.3d at 1223. “Approximate” is defined as 171 Case 8:17-cv-01932-CEH-AAS Document 262 Filed 01/28/21 Page 172 of 192 PageID 44976 “nearly correct or exact: close in value or amount but not precise.” Merriam-Webster Dictionary, Approximate, https://www.merriam-webster.com/dictionary/approximate (last visited January 20, 2021). Thus, the temporary work platforms had to be nearly correct or exact to 30 feet in width. The evidence shows that this was not the case. In December of 2015, the Chustz survey of the work platform at Monolith 076 demonstrated that the outer edge of the work platform was 28.2 feet from 10’ off of the centerline of the sheet pile wall at one measured point, and 28.7 feet at another measured point. Therefore, the provided work platform was not nearly correct or exact to 30 feet in width, but more than an entire foot short. This deficiency arises in the context of the work platforms’ intended purpose: to provide a platform for cranes. Mr. Ellis testified that he measured the width of the work platform in this area as 28.2 feet in December of 2015 and in the spring of 2016. Mr. Senis testified that the width was approximately 22.5 feet in the spring of 2016, and he also testified that he did not observe any compaction, which the subcontract agreement between HDB and FEDCON required. Both Mr. Ellis and Mr. Senis testified that FEDCON had not undertaken to perform any additional work on the work platform at Monolith 076 after the issuance of the April 11, 2016 letter, the First Terracon Report, or the Revised Report by May 27, 2016. There is no evidence that the work platform was prepared in accordance with the terms of the 2.2 Project Subcontract Agreement between December of 2015 and April of 2016, either. FEDCON never analyzed the width of the platform from Monolith 076 to Monolith 078. David Boland testified generally that the work platform in the area of Monolith 071 needed additional degrading, which could be done within a day. Even if this testimony pertained to Monolith 076, it only highlights that the work platform was not ready for GLF. 172 Case 8:17-cv-01932-CEH-AAS Document 262 Filed 01/28/21 Page 173 of 192 PageID 44977 Given FEDCON’s issuance of Change Order No. 15, the Court takes this opportunity to address GLF’s argument in its responses to FEDCON’s letters that the 2.2 Project Subcontract Agreement required a change order under Paragraph 10.A. Paragraph 10.A provides: Without invalidating this Subcontract Agreement, the Contractor and/or Owner . . . may at any time, by written order, and without notice to the Subcontractor or the sureties on the Subcontractor’s bonds, make changes to the Contract Documents and/or terms or conditions of the Prime Contract. The Contractor may, by reason of such changes or otherwise, add to or reduce the Work herein without limitation and without invalidating this Subcontract Agreement. The Contractor shall furnish the Subcontractor with written notice of any such change, addition, or reduction in the Work. The Contractor may also issue change orders for unilateral deductions arising out of backcharges for which the Subcontractor is determined to be responsible by the Contractor. All backcharges shall include in addition to all costs, ten percent (10%) overhead and five percent (5%) profit. If any such change causes an increase or decrease in the Subcontractor’s cost of or time required for the performance of this Subcontract Agreement, an equitable adjustment shall be made and this Subcontract Agreement modified in writing accordingly. In no case shall any adjustment or change in the Subcontract price or time of performance be binding on the Contractor for changes initiated by the Owner unless approved by the Owner . . . . Doc. 216-116 at 5 (emphasis added). In turn, the 2.2 Project Subcontract Agreement also provides that any “modification of this Subcontract Agreement must be made in writing and executed by the parties to this Subcontract Agreement, except as otherwise provided in this Subcontract Agreement.” Id. at 12. Additionally, Paragraph 10.D provides, in relevant part: Except as otherwise provided in this Subcontract Agreement, no charge for any change in the Work will be allowed unless issued by written change order. No charges by the Subcontractor for omissions, discrepancies, or inadequacies in the plans, specifications or drawings shall be binding upon the Contractor unless accepted or approved by the Owner, and the Contractor shall not be liable to the contractor on account of such changes unless and until the Contractor shall receive payment therefor from the Owner, and then only to the extent of the Subcontractor’s share of such payment. 173 Case 8:17-cv-01932-CEH-AAS Document 262 Filed 01/28/21 Page 174 of 192 PageID 44978 Id. at 8. Thus, by reason of changes to the Contract Documents or terms or conditions of the Prime Contract, FEDCON may add or reduce the Work in the 2.2 Project Subcontract Agreement. FEDCON must furnish GLF with written notice of that change, addition, or reduction in the work. If such change results in an increase or decrease in GLF’s cost of or time required for the performance of the 2.2 Project Subcontract Agreement, an equitable adjustment must be made and the 2.2 Project Subcontract Agreement must be modified in writing accordingly. The written modification must be agreed to by FEDCON and GLF. And a charge for change in the work will not be allowed unless issued by change order. In its March 4, 2016 letter, in reference to the February 3, 2016 access plan and prior to the Corps’ recognition of the differing site condition, GLF claimed that a change order was needed because the work had changed. Indeed, the February 3, 2016 access plan had changed the nature of the work. For example, in accessing the site, GLF would need to proceed through a petrochemical plant. By issuing the February 3, 2016 access plan, FEDCON had issued notice of a change in the work. This change undoubtedly would result in an increase or decrease in GLF’s cost, rather than the cost not changing, as the access plan called for part of the work to proceed through Chevron and the access plan would impact the use of equipment. As such, under the language of Paragraph 10.A, an equitable adjustment was needed and the 2.2 Project Subcontract Agreement needed to be modified in writing. Thus, GLF sought a change order. The same reasoning applies to GLF’s subsequent assertions that a change order was needed following FEDCON’s issuance of the April 11, 2016 letter. Like the February 3, 2016 access plan, the April 11, 2016 letter changed the work and undoubtedly would have resulted in an increase or decrease in GLF’s cost for the same reason as above. David Boland admitted during trial that the 174 Case 8:17-cv-01932-CEH-AAS Document 262 Filed 01/28/21 Page 175 of 192 PageID 44979 changes to the access road and work platform were changes to the 2.2 Project Subcontract Agreement. Additionally, FEDCON’s July 6, 2016 letter to GLF, following the Notice of Termination, admitted that, as a result of the differing site condition, the temporary access road could not be provided as contemplated under the 2.2 Project Subcontract Agreement and “deliveries for the materials for Monoliths 072 through 085 must be made by way of the work platform as outlined in the [April 11, 2016 letter] that included FEDCON’s access plan for the work from Monolith 072 south.” Doc. 222-155 at 3. Although a written modification to the 2.2 Project Subcontract was required, whether any modification regarding the April 11, 2016 letter was made by the parties is unclear. Indeed, GLF’s responses to FEDCON’s letters reveal an assumption that the April 3, 2016 access plan validly modified the 2.2 Project Subcontract Agreement, as GLF argued that the work platform was less than 30 feet, thereby requiring engineering under FEDCON’s commitment in the letter. Even if the 2.2 Project Subcontract Agreement was modified by, or to account for, the terms of the April 11, 2016 letter, FEDCON still failed to perform the predecessor work because it did not provide engineered platforms. For example, although Change Order No. 15 advised GLF that it needed to begin work at Monolith 076, the evidence discussed above shows that Monolith 076 was less than 30 feet and, therefore, required an engineered work platform. However, FEDCON did not provide an engineered platform. On May 23, 2016, FEDCON issued the Notice of Default, in which it: (1) advised that GLF continued to remain in default under the 2.2 Project Subcontract Agreement for failing to recommence the work south of Monolith 072; and (2) demanded GLF to provide a written plan that demonstrated and committed to the recommencement of the work at Monolith 076 at the earliest reasonable time. As already detailed, FEDCON had not performed the predecessor work 175 Case 8:17-cv-01932-CEH-AAS Document 262 Filed 01/28/21 Page 176 of 192 PageID 44980 at Monolith 072 or Monolith 076. At this time, GLF had not received Change Order No. 15. GLF responded that it had not received an acceptable engineered plan demonstrating how FEDCON intended to address the changed condition. GLF advised that it was ready, willing, and able to recommence and complete the work once an “acceptable engineering plan for the performance of the work that is the subject of the changed condition” was issued and an appropriate change order for the same was received. Doc. 217-136 at 3. FEDCON again requested GLF to commit in writing to recommence the work beginning at Monolith 076 at the earliest reasonable time. GLF responded, in relevant part, that FEDCON had “yet to properly plan for or construct the temporary structures that it is required to provide pursuant to our Subcontract.” Doc. 217-197 at 2. GLF stated that it would recommence the work at the earliest reasonable time conditioned upon FEDCON fulfilling its contractual responsibilities. Also, now that it had finally received Change Order No. 15, GLF rejected the change order because GLF construed it as FEDCON’s attempt to force GLF to bear the expense and submit a claim for equitable adjustment after-the-fact instead of receiving payment as the work progressed. Indeed, as drafted, Change Order No. 15 indicated $0.00 as the “Total Change Order Amount” and provided that, by signing, GLF would agree that Change Order No. 15 fully compensated GLF for the described changes and any and all claims for additional time, delay, impact, or disruption incurred by GLF as a result of Change Order No. 15 individually, and the cumulative impact collectively, with prior change orders. FEDCON terminated the 2.2 Project Subcontract Agreement on May 27, 2016, explaining that, “[d]espite repeated directives from FEDCON, GLF has failed and refused to recommence the work south of Monolith 071.” Doc. 217-194 at 1. FEDCON claimed that GLF’s refusal to recommence the work as directed by FEDCON constituted a material breach of the 2.2 Project Subcontract Agreement and had resulted in a significant delay to the project schedule. 176 Case 8:17-cv-01932-CEH-AAS Document 262 Filed 01/28/21 Page 177 of 192 PageID 44981 FEDCON has asserted that the 2.2 Project Subcontract Agreement required GLF to proceed with the work under Paragraph 10.B, which stated, in relevant part, “If the Owner or the parties fail to agree upon the adjustment to be made, the dispute shall be determined as provided in Paragraph 13 hereof; but nothing provided in this clause shall excuse the Subcontractor from proceeding with the prosecution of the Work as changed or as directed or required by the Contractor. The Subcontractor shall proceed with prosecution of any portion of the Work which is the subject of a claim or dispute under this paragraph.” Doc. 216-116 at 5–6. However, this argument is unavailing because the predecessor work, which had not been completed, was not the responsibility of GLF. Because the predecessor work had not been completed, the work was unavailable to GLF. Based on the foregoing, FEDCON materially breached the 2.2 Project Subcontract Agreement. 1042 Further, GLF has established that it incurred damages as a result of FEDCON’s breach. GLF seeks $375,197.30 in accelerated demobilization costs. GLF also seeks $118,854.78 for Application for Payment No. 34 and $880,000.00 for reimbursement of demobilization costs and expenses. First, upon consideration of Mr. Ellis’ testimony regarding the $118,854.38 amount in Application for Payment No. 34, including his representation that the Corps approved the amount after removal of an amount for demobilization of pipe driving equipment, the Court will 1042 Relying on a line of cases from the United States Court of Federal Claims regarding termination due to timeliness of performance or scheduling, GLF has also argued that FEDCON improperly terminated the 2.2 Project Subcontract Agreement because it was aware at the time of termination that it would receive time extensions and additional compensation from the Corps. The Court previously distinguished this line of cases in its Order on summary judgment. Doc. 177 at 24. Here, FEDCON terminated the 2.2 Project Subcontract for GLF’s failure to recommence the work after repeated directives. As such, this line of cases is distinguishable. Further, GLF has argued that FEDCON’s termination of the 2.2 Project Subcontract Agreement was improper because GLF cured the default. In response to FEDCON’s requests for written confirmation that GLF would recommence the work at the earliest reasonable time, GLF agreed to recommence the work at the earliest reasonable time, but conditioned this upon FEDCON’s fulfillment of its contractual responsibilities. GLF’s argument that its responses cured the defaults is unavailing. For the same reason, the Court need not address FEDCON’s arguments regarding the adequacy or sufficiency of GLF’s responses to the Notice of Default or the Notice of Termination. 177 Case 8:17-cv-01932-CEH-AAS Document 262 Filed 01/28/21 Page 178 of 192 PageID 44982 award the $118,854.78. Next, according to Mr. Ellis, the $375,197.30 amount represents incurred costs for accelerated demobilization from the 2.2 Project. According to Mr. Ellis, the damages here were damages that GLF sustained through its demobilization of its equipment from the 2.2 Project, as well as the costs for renting the interim storage location. A review of the supporting materials reveals that Blue Book rates were used. Doc. 218-784 at 2–24. No EP 1110 rates have been provided. David Boland previously testified that Blue Book rates were three times higher. As such, the Court will award only $50,031.57 for the equipment portion of this claim, rather than $150,094.72. The remaining portions are reasonable. It is clear that “substantial damages were suffered and there is a reasonable basis in the evidence” for the amounts. Centex-Rooney Constr. Co., Inc., 706 So. 2d at 28 (original emphasis removed). Accordingly, the Court will award $275,134.15 for accelerated demobilization costs. Mr. Ellis testified that the $880,000 amount represents an agreed-upon amount, located in the schedule of values, that GLF was to be paid for demobilizing the equipment, with such amount to be paid to cover the cost of the actual demobilization to the next location of each item of equipment. Based on Mr. Ellis’ testimony, the Court will award this amount. Therefore, the Court will award $1,273,988.93 for this claim. C. GLF’s Miller Act Claims In each of its claims under the Miller Act, GLF alleges that FEDCON’s breaches of the respective subcontract agreement constitute breaches of the Miller Act bonds. Under the Miller Act: Every person that has furnished labor or material in carrying out work provided for in a contract for which a payment bond is furnished under section 3131 of this title and that has not been paid in full within 90 days after the day on which the person did or performed the last of the labor or furnished or supplied the material for which the claim is made may bring a civil action on the payment 178 Case 8:17-cv-01932-CEH-AAS Document 262 Filed 01/28/21 Page 179 of 192 PageID 44983 bond for the amount unpaid at the time the civil action is brought and may prosecute the action to final execution and judgment for the amount due. 40 U.S.C. § 3133(b). In turn, Section 3131 provides: “Before any contract of more than $100,000 is awarded for the construction, alteration, or repair of any public building or public work of the Federal government, a person must furnish to the Government” a payment bond and a performance bond, as specified under the statute. Id. § 3131(b). The Miller Act is “highly remedial in nature.” United States f/u/b/o Krupp Steel Prods., Inc. v. Aetna Ins. Co., 831 F.2d 978, 980 (11th Cir. 1987) (internal quotation marks omitted). “A surety’s liability under the Miller Act is measured by the general contractor’s liability under the construction contract.” United States ex rel. Ragghianti Founds. III, LLC v. Peter R. Brown Constr. Inc., 49 F. Supp. 3d 1031, 1054 (M.D. Fla. 2014). “Four elements must be proven by a plaintiff in order to collect under the Miller Act: (1) that materials were supplied for work in the particular contract at issue; (2) that the supplier is unpaid; (3) the supplier has a good faith belief that the materials were for the specified work; and (4) that jurisdictional requisites are met.” United States f/u/b/o Jack Daniels Constr., Inc. v. Liberty Mut. Ins. Co., No. 8:12-cv-2921-T-24TBM, 2015 WL 9460115, at *4 (M.D. Fla. Dec. 28, 2015) (citing Krupp Steel Prods., Inc., 831 F.2d at 979. “Because lost profits are not out-of-pocket expenditures for labor and materials, however, they are not within the scope of remedies provided under the Miller Act.” Id. “A damage claim against a surety that does not flow directly and immediately from actual performance is barred by the Miller Act.” Ragghianti Founds. III, LLC, 49 F. Supp. 3d at 1053. “A Miller Act plaintiff is entitled to recover under the bond the out-of-pocket labor and expenses attributable to delays.” Id. at 1052. “Further, a subcontractor can recover from the Miller Act surety for labor and material furnished despite non-payment by the government to the contractor.” Id. 179 Case 8:17-cv-01932-CEH-AAS Document 262 Filed 01/28/21 Page 180 of 192 PageID 44984 But, a subcontractor cannot recover on a payment bond under the Miller Act for the cost of labor and materials provided after the termination of work under a government construction project. Id. at 1054. As noted, in accordance with the Miller Act, 40 U.S.C. § 3131, FEDCON, as principal, and Western, as surety, executed and delivered a payment bond to the Corps for the 2.2 Project and a payment bond for the 1.2a Project. The payment bonds provided: We, [FEDCON and Western], are firmly bound to the United States of America (hereinafter called the Government) in the above penal sum, for payment of the penal sum, we bind ourselves, our heirs, executors, administrators, and successors, jointly and severally. However, where the Sureties are corporations acting as co-sureties, we, the sureties, bind ourselves in such sum “jointly and severally” as well as “severally” only for the purpose of allowing a joint action or actions against any and all of us. For other purposes, each surety binds itself jointly and severally with [FEDCON], for the payment of the sum shown . . . . If no limit is indicated, the limit of liability is the full amount of the penal sum. Doc. 38-2 at 1; GLF II, Doc. 1-1 at 1. Here, GLF has failed to carry its burden in proving the elements of its Miller Act claims. Despite providing extensive testimony and evidence regarding its damages, GLF has not sought to delineate which costs it seeks to recover under the Miller Act and the bases for entitlement to those costs under the Miller Act. The caselaw above demonstrates that a Miller Act claim is not simply a tag-along claim to a breach of contract claim, but instead a claim that provides for qualified remedial relief. As such, these claims fails. D. GLF’s Unjust Enrichment Claims GLF also brings claims for unjust enrichment for the 2.2 Project and the 1.2a Project. Docs. 38 at ¶¶45–50; GLF II, Doc. 1 ¶¶54–59. Because GLF has succeeded on its breach of contract claims and these claims are brought in the alternative, the Court need not devote much analysis to 180 Case 8:17-cv-01932-CEH-AAS Document 262 Filed 01/28/21 Page 181 of 192 PageID 44985 these claims. The Court also notes that, under Florida law, “a plaintiff cannot pursue a quasicontract claim for unjust enrichment if an express contract exists concerning the same subject matter.” 1021018 Alberta Ltd. v. Netpaying, Inc., No. 8:10-cv-568-T-27MAP, 2011 WL 1103635, at *5 (M.D. Fla. Mar. 24, 2011) (internal quotation marks omitted) (quoting Diamond “S” Dev. Corp. v. Mercantile Bank, 989 So. 2d 696, 697 (Fla. 1st DCA 2008)). Here, the parties have stipulated that the 1.2a Project Subcontract Agreement and the 2.2 Project Subcontract Agreement are valid and enforceable contracts. As such, these claims fail. E. FEDCON’s Breach of Contract Claims FEDCON brings two claims for breach of contract in its counterclaims: one for the 2.2 Project and one for the 1.2a Project. 1043 In its breach of contract claim for the 2.2 Project, FEDCON alleges that GLF materially breached the 2.2 Project Subcontract Agreement “in a number of ways, including but not limited to failing to maintain the Project schedule and failing or refusing to abide by proper directives to recommence performance of work when so directed by FEDCON.” GLF II, Doc. 66 ¶31. Similarly, in its breach of contract claim for the 1.2a Project, FEDCON alleges that GLF materially breached the 1.2a Project Subcontract Agreement “in a number of ways, including, but not limited to, failing to maintain the Project schedule and causing various miscellaneous defaults thereby causing FEDCON to incur damages to correct the same.” Doc. 13 ¶22. For the reasons set forth below, these claims fail. “For a breach of contract claim, Florida law requires the plaintiff to plead and establish: (1) the existence of a contract; (2) material breach of that contract; and (3) damages resulting from the breach.” Vega, 564 F.3d at 1272. “To constitute a vital or material breach, a party’s nonperformance must ‘go to the essence of the contract.’” MDS (Can.) Inc., 720 F.3d at 849. The 1043 The Court previously recognized that GLF’s amended complaint for the 1.2a Project did not moot FEDCON’s counterclaim. Doc. 177 at 7 n.3. 181 Case 8:17-cv-01932-CEH-AAS Document 262 Filed 01/28/21 Page 182 of 192 PageID 44986 parties agreed that the 2.2 Project Subcontract Agreement and the 1.2a Project Subcontract Agreement are valid and enforceable. Through these claims, FEDCON asserts delay damages clams against GLF and F&D, in which it seeks to recover its extended field office overhead and other delay related costs and expenses due to delays allegedly caused by GLF in the performance of its work on both projects. As for FEDCON’s efforts to establish that GLF breached the 2.2 Project Subcontract Agreement by refusing to perform the work when directed, the Court addressed the viability of these claims above. Thus, the Court will focus on GLF’s purported material breach of the subcontract agreements by failing or refusing to abide by the project schedules. Paragraph 7.A of the subcontract agreements provided that “Subcontractor acknowledges that it has been informed that the Contractor must complete the Prime Contract on or before the Prime Contract completion date (including adjustments thereto) and in accordance with the project Schedule (including any adjustments thereto).” Docs. 216-116 at 4; 216-132 at 4. “It is, therefore, understood and agreed that the Work set forth herein shall be entirely completed in accordance with the Project Schedule, and any adjustments thereto . . . and it shall be the responsibility of the Subcontractor to be aware of the progress of the Project and the Project Schedule including any adjustments thereto.” Id. Thus, GLF was required to complete the work in accordance with the Project Schedule. 1044 Neither subcontract agreement expressly defined the “Project Schedule.” However, Exhibit D to each subcontract agreement provides that the Project Schedule “represents the Contractor’s plan for controlling the performance of the work, and it is developed in order to 1044 Paragraph 6.A required GLF to complete the work with diligence, without delay, and “in such manner and sequence that the Contractor and other subcontractors can complete the work in accordance with the progress schedule including any adjustments thereto and without delay to the Project as a whole.” Docs. 216-116 at 3; 216-132 at 3 (emphasis added). Because “Project Schedule” is a defined term, as opposed to “progress schedule,” the Court construes these terms as different terms and does not interpret the “progress schedule” as referring to the “Project Schedule.” 182 Case 8:17-cv-01932-CEH-AAS Document 262 Filed 01/28/21 Page 183 of 192 PageID 44987 benefit all parties involved in the Project by ensuring that the work is completed at the earliest reasonable time that is consistent with the orderly and efficient manner of construction.” Docs. 216-117 at 8; 216-133 at 6. Thus, the Project Schedule represented the Contractor’s plan for controlling the work. The evidence clearly demonstrates that neither subcontract agreement had specific schedules attached thereto or referenced therein. Indeed, at the time when GLF entered into the subcontract agreements with FEDCON, there was not a developed schedule that had been reviewed or approved. Therefore, despite the subcontract agreements’ reference to a “Project Schedule,” a “Project Schedule” did not exist for either project. FEDCON subsequently developed the early completion schedules and sought to use these early completion schedules for the projects, even though they differed from the schedules approved by the Corps. However, the subcontract agreements provide that any modification thereto “must be made in writing and executed by the parties” to the subcontract agreement, except as otherwise provided. Docs. 216-116 at 12; 216-132 at 12. FEDCON has failed to demonstrate by a preponderance of the evidence that the parties ever modified either subcontract agreement in writing to incorporate the early completion schedules, which were developed after the parties entered into the subcontract agreements. Indeed, the only evidence that one could construe as an agreement to the use of the early completion schedules by GLF is the testimony of Mr. Boland and Mr. Whitworth that GLF did not object to FEDCON’s discussion of using different schedules at a meeting in February of 2014. But, although Mr. Beaird could not recall the details of the meeting or whether he expressed disagreement with the early completion schedules, Mr. Yerk credibly testified that he first learned of this purported meeting, at which he was alleged to be present, in a July 28, 2014 meeting. Regardless, even if the meeting occurred and GLF verbally agreed to the 183 Case 8:17-cv-01932-CEH-AAS Document 262 Filed 01/28/21 Page 184 of 192 PageID 44988 use of these schedules, there is no evidence that the parties modified the subcontract agreements in writing to include the early completion schedules. Therefore, FEDCON’s reliance on the early completion schedules to establish GLF’s purported delays of the projects is unavailing because the early completion schedules were not part of the subcontract agreements. 1045 Even if the early completion schedules should be used, FEDCON still fails to establish these claims in light of the many flaws in Dr. Sist’s analysis. As stated above, Dr. Sist testified that she used the early completion schedules as the basis for her delay analysis. FEDCON relied upon this analysis in arguing that GLF delayed the projects. However, the Court, as trier of fact, rejects Dr. Sist’s testimony for the many reasons addressed by Mr. Brannon. Mr. Brannon credibly testified regarding these deficiencies in Dr. Sist’s analysis. The Court need not rehash those deficiencies here, as they are discussed in the extensive findings above. Therefore, FEDCON has failed to prove, by a preponderance of the evidence, that GLF materially breached the subcontract agreements by failing to maintain the project schedule. 1046 Based on the foregoing, FEDCON has failed to carry its burden for each of its breach of contract claims. F. FEDCON’s Breach of Bond Claims 1045 To the extent that FEDCON relies on other purported instances of delays by GLF outside of the schedules for performance established by the early completion schedules, it has failed to establish such delays by a preponderance of the evidence. 1046 FEDCON has also argued that GLF acquiesced to FEDCON’s use of the early completion schedules to manage the projects and GLF’s arguments to the contrary are barred by waiver and estoppel. “Waiver is the voluntary and intentional relinquishment of a known right, or conduct that implies the voluntary and intentional relinquishment of a known right.” Major League Baseball v. Morsani, 790 So. 2d 1071, 1077 n.12 (Fla. 2001). Here, however, the evidence shows that GLF did not know about the early completion schedules when it entered into the subcontract agreements and, upon learning about them, immediately voiced its objections. Further, while GLF continued to perform, the Court does not find that this continued performance waived any right to object to the use of the early completion schedules in light of the contractual requirements on GLF for performance. Next, equitable estoppel “presupposes a legal shortcoming in a party’s case that is directly attributable to the opposing party’s misconduct. The doctrine bars the wrongdoer from asserting that shortcoming and profiting from his or her own misconduct.” Id. at 1077. FEDCON has not demonstrated this by a preponderance of the evidence. 184 Case 8:17-cv-01932-CEH-AAS Document 262 Filed 01/28/21 Page 185 of 192 PageID 44989 FEDCON brings two claims for breach of bond in its counterclaims, one for the 2.2 Project and one for the 1.2a Project, in each of its counterclaims. Docs. 13 ¶¶25–29, GLF II, Doc. 66 ¶¶34– 39. These claims fail. i. 2.2 Project For the 2.2 Project, FEDCON alleges that F&D materially breached the terms of the performance bond by failing to complete the performance of the work under the 2.2 Project Subcontract Agreement following the termination for default of GLF. GLF II, Doc. 66 ¶¶37. FEDCON alleges that failure to fulfill the obligations under the bond constitutes a material breach of the bond. Id. at ¶38. The performance bond provided that GLF and F&D were bound to FEDCON in the amount of $10,517.859.50. Doc. 216-351 at 37. The bond’s stated purpose was to provide protection to FEDCON, as the contractor, in the event of a default by GLF, as the subcontractor, under the 2.2 Project Subcontract Agreement. Id. The bond also addressed the event of such default: [T]here shall be no liability on the part of [GLF] or [F&D] under this bond to [FEDCON], or either of them, unless [FEDCON] shall make payments to [GLF], or to [F&D] in case it arranges for completion of the [2.2 Project] Subcontract Agreement upon default of [GLF], in accordance with the terms of said Subcontract Agreement as to payments, and [FEDCON] shall perform all the other obligations required to be performed under said Subcontract Agreement at the time and in the manner therein set forth. Id. Under the bond, the obligation was null and void if GLF: 1. Shall promptly and faithfully perform all of the undertakings, covenants, terms, conditions, and agreements of said [2.2 Project] Subcontract Agreement during the original term of the Subcontract Agreement and any extensions thereof; and during the life of any warranty, guaranty, and indemnification required under the Subcontract Agreement; and 2. Shall promptly pay [FEDCON] all losses, costs, and damages 185 Case 8:17-cv-01932-CEH-AAS Document 262 Filed 01/28/21 Page 186 of 192 PageID 44990 (including, without limitation, damages resulting from delay in the performance of the Subcontract Agreement and damages from failure to discharge warranty, guaranty, and indemnity obligations), including all litigation-related costs and attorneys’ fees that [FEDCON] may suffer by reason of [GLF’s] default, and shall further fully reimburse and repay [FEDCON] for all outlays and expenses that [FEDCON] may incur in curing any default or alleged default. Id. Otherwise, however, the obligation remained in full force, but subject to the following relevant condition: 2. Whenever [GLF] shall be, or declared by [FEDCON] to be, in default under the [2.2 Project] Subcontract Agreement, [FEDCON] having performed [FEDCON’s] obligation thereunder, [F&D] shall promptly cause the default to be remedied; or shall (a) complete the Subcontract Agreement in accordance with its terms and conditions; or (b) promptly obtain a bid or bids for submission to [FEDCON] for completing the Subcontract Agreement in accordance with its terms and conditions, and upon the determination by [FEDCON] and [F&D] of the lowest responsible bidder, arrange for a Subcontract Agreement, herein after called “Subcontract of Completion,” between such bidder, hereinafter called “Subcontractor,” and [FEDCON], and [F&D] shall make available as such work progresses (even though there should be a default or a succession of defaults under the Subcontract or Subcontracts of Completion arranged under this paragraph) sufficient funds to pay the costs of completion under the terms of said Subcontract of Completion less the balance of the subcontract price and taking into consideration other costs and damages for which [F&D] may be liable hereunder. Id. The bond also incorporated the 2.2 Project Subcontract Agreement. In turn, Paragraph 8 of the 2.2 Project Subcontract Agreement, entitled “Default by Subcontractor,” is part of the bond. Thus, the stated purpose of the bond is to provide FEDCON with protection in the event of GLF’s default under the 2.2 Project Subcontract Agreement, in which event there shall be no liability on the part of GLF or F&D under the bond, unless FEDCON makes payments to GLF, or 186 Case 8:17-cv-01932-CEH-AAS Document 262 Filed 01/28/21 Page 187 of 192 PageID 44991 to F&D if it arranges for completion of the 2.2 Project Subcontract Agreement upon GLF’s default, in accordance with the terms regarding payments under the 2.2 Project Subcontract Agreement and performs all other obligations required to be performed under the 2.2 Project Subcontract Agreement at the time and manner therein set forth. As a condition to the bond’s obligation remaining in full force, the bond provides that, whenever GLF is, or is declared by FEDCON to be, in default under the 2.2 Project Subcontract Agreement, with FEDCON having performed its obligations thereunder, F&D must either promptly cause the default to be remedied, or (a) complete the 2.2 Project Subcontract Agreement, or (b) promptly obtain a bid or bids for submission to FEDCON for completion of the 2.2 Project Subcontract Agreement in accordance with its terms and conditions and, upon the determination by both FEDCON and F&D of the lowest responsible bidder, arrange for a subcontract agreement between such bidder and FEDCON, with F&D making available as the work progresses sufficient funds to pay the costs of completion under such subcontract agreement. Based on the analysis above, however, FEDCON did not perform its obligations under the 2.2 Project Subcontract Agreement. Further, the facts above demonstrate that GLF maintained its obligation to: (1) promptly and faithfully perform the undertakings, terms, and conditions of the 2.2 Project Subcontract Agreement during its original term, extensions thereof, and during the life of any warranty, guarantee, and indemnification required under the 2.2 Project Subcontract Agreement; and (2) promptly pay FEDCON all losses, costs, and damages, including all litigationrelated costs and attorneys’ fees that FEDCON may suffer by reason of a default by GLF, as well as fully reimburse and repay FEDCON for all outlays and expenses that FEDCON may have incurred. F&D is relieved of any obligations to FEDCON under the bond for the 2.2 Project. 187 Case 8:17-cv-01932-CEH-AAS Document 262 Filed 01/28/21 Page 188 of 192 PageID 44992 Accordingly, this claim fails. 1047 ii. 1.2a Project For the 1.2a Project, FEDCON alleges that, by reason of GLF’s breach and default on the terms and conditions of the 1.2a Project Subcontract Agreement and F&D’s obligations under the bond to cure such breaches and defaults, F&D is liable to FEDCON for the payment of the delay costs and miscellaneous costs incurred as a result of GLF’s default. Doc. 13 ¶28. According to FEDCON, F&D’s failure to fulfill its obligations under the bond constitutes a material breach of the bond, which directly and proximately caused damages to FEDCON. The performance bond for the 1.2a Project is identical to the performance bond for the 2.2 Project, save for the difference in the penal sum: the performance bond for the 1.2a Project was in the amount of $7,765,009.00. Doc. 222-319 at 1. This claim is premised upon FEDCON’s argument that GLF breached the 1.2a Project Subcontract Agreement. However, as discussed above, GLF did not breach the 1.2a Project. Therefore, this claim fails. 1047 Even if FEDCON performed its obligations under the 2.2 Project Subcontract Agreement and the bond remained in full force under the above-specified terms of the condition regarding GLF’s performance and payment, FEDCON deprived F&D of its ability to protect itself pursuant to the performance options under the bond. The purpose of a performance bond, such as the bond here, “is to guarantee the completion of the contract upon default by the contractor.” Am. Home Assurance Co. v. Larkin Gen. Hosp., Ltd., 593 So. 2d 195, 198 (Fla. 1992). However, “[a]n obligee’s action that deprives a surety of its ability to protect itself pursuant to the performance options granted under a performance bond constitutes a material breach, which renders the bond null and void.” Sch. Bd. of Escambia Cnty. v. TIG Premier Ins. Co., 110 F. Supp. 2d 1351, 1354 (N.D. Fla. 2000). As set forth above, whenever GLF is, or is declared by FEDCON to be, in default under the 2.2 Project Subcontract Agreement, with FEDCON having performed its obligations thereunder, F&D must either promptly cause the default to be remedied, or (a) complete the 2.2 Project Subcontract Agreement, or (b) promptly obtain a bid or bids for submission to FEDCON for completion of the 2.2 Project Subcontract Agreement in accordance with its terms and conditions and, upon the determination by both FEDCON and F&D of the lowest responsible bidder, arrange for a subcontract agreement between such bidder and FEDCON, with F&D making available as the work progresses sufficient funds to pay the costs of completion under such subcontract agreement. Here, however, F&D emphasized on May 26, 2016, that FEDCON’s letter lacked the requisite information. F&D’s subsequent May 31, 2016 letter emphasized the significance of its receipt of information in its May 31, 2016 letter to FEDCON. Although David Boland testified that Mr. Kriss informed him that F&D “would not be proceeding,” this testimony was not credible, given F&D’s subsequent actions, the lack of any documentation regarding this provision, and Mr. Boland’s prior failure to recall. The evidence clearly shows that FEDCON’s filing of the lawsuit deprived F&D of its ability to protect itself. For example, Ms. Gualdron testified that the lawsuit resulted in F&D’s inability to conduct its investigation per usual and that FEDCON personnel were not asked to speak with F&D personnel. Further, FEDCON hired the replacement contractors without any notice to F&D. 188 Case 8:17-cv-01932-CEH-AAS Document 262 Filed 01/28/21 Page 189 of 192 PageID 44993 IV. CONCLUSION Based on the foregoing, GLF is entitled to damages on its breach of contract claim for the 1.2a Project in Case No. 8:17-cv-1932-T-36AAS in the amount of $614,487.14 (access road), subject to the reductions calculated below. Likewise, GLF is entitled to damages on its breach of contract claim for the 2.2 Project in Case No. 8:17-cv-2650-T-36TGW for the following amounts: $768,591.49 (access road), plus $330,145.99 (AZ-PZ), plus $111,953.47 (multiple material handling), plus $1,273,988.93 (improper termination), less GLF’s $67,881.17 reduction for four days on the access road claims utilizing EP 1110 rates. The subtotal of these amounts is $2,416,798.71.Thus, GLF is entitled to $2,416,798.71 on its breach of contract claim for the 2.2 Project in Case No. 8:17-cv-2650-T36TGW. GLF has offered two additional reductions to its claims. First, GLF has offered a reduction of $67,974.19 for project management and supervision for all “claims distributed over both projects” because there were “parts or fractions of days that [Mr. Ellis] attributed to supervision of any given claim on any given day” and, on some days, “there was more than one impact on a particular project in a day.” Testimony of Lorenzo Ellis, Doc. 241 at 6:7–21. Mr. Ellis accordingly added up the “fractions” that exceed 1.0 for any particular day over the course of the claims. Similarly, GLF has offered a reduction of $6,506.25 for crane hours. In calculating this reduction, GLF sought to identify “the fractions of days or numbers of hours per day on any given piece of equipment across all claims on both jobs where the crane hours exceed eight hours in one day.” Id. at 241:10–19. Thus, both of these reductions, which were offered through demonstrative exhibits and Mr. Ellis’ testimony, are composed of subtotals added up across all claims on both projects. However, GLF has successfully established only some of its claims. GLF has not broken 189 Case 8:17-cv-01932-CEH-AAS Document 262 Filed 01/28/21 Page 190 of 192 PageID 44994 down these reductions by claim or by project, nor has GLF offered any methodology for the Court to determine how to apply these reductions in the event that GLF did not recover for each claim. The Court maintains “reasonable discretion” in making awards of damages in those instances where damages cannot be “precisely and mathematically determined,” John Hancock Mut. Life Ins. Co., 324 So. 2d at 674. GLF initially brought ten claims, and Mr. Ellis testified that he calculated these sums by evaluating all claims. GLF will recover on five claims: the 1.2a access road, the 2.2 access road, the multiple material handling, the AZ-PZ sheet piling, and the wrongful termination. As such, for each reduction, the Court will exercise its discretion and divide the reduction by ten to arrive at an equal sum per claim, add five of these equal sums together, and then reduce GLF’s award by that amount. For the project management and supervision reduction, this process results in an amount of $33,987.09, which will be applied as a reduction against GLF’s recovery. For the crane hours reduction, this process results in an amount of $3,253.12, which will be applied as a reduction against GLF’s recovery. Since both reductions applied to all claims, whether the Court applies these reductions to GLF’s recovery for the 1.2a Project or the 2.2 Project is immaterial. The Court will apply the deductions to the total for the 1.2a Project, resulting in a total recovery for the breach of contract claim in the 1.2a Project in Case No. 8:17-cv-1932-T36AAS in the amount of $577,246.93. Accordingly, it is now ORDERED AND ADJUDGED: 1. Plaintiff GLF Construction Corporation takes nothing on its claim under the Miller Act (Count I) in Case No. 8:17-cv-1932-T-AAS. 2. Plaintiff GLF Construction Corporation is entitled to judgment in its favor and against only Defendant FEDCON Joint Venture, Defendant David Boland, Inc., and Defendant JT 190 Case 8:17-cv-01932-CEH-AAS Document 262 Filed 01/28/21 Page 191 of 192 PageID 44995 Construction Enterprise Corporation on Plaintiff’s breach of contract claim (Count II) in Case No. 8:17-cv-1932-T-36AAS in the amount of $577,246.93. 3. Plaintiff GLF Construction Corporation takes nothing on its claim for unjust enrichment (Count III) in Case No. 8:17-cv-1932-T-36AAS. 4. Plaintiff GLF Construction Corporation takes nothing on its claim under the Miller Act (Count I) in Case No. 8:17-cv-2650-T-36TGW. 5. Plaintiff GLF Construction Corporation is entitled to judgment in its favor and against only Defendant FEDCON Joint Venture, Defendant David Boland, Inc., and Defendant JT Construction Enterprise Corporation on Plaintiff’s breach of contract claim (Count II) in Case No. 8:17-cv-2650-T-36TGW in the amount of $2,416,798.71. 6. Plaintiff GLF Construction Corporation takes nothing on its unjust enrichment claim (Count III) in Case No. 8:17-cv-2650-T-36TGW. 7. Defendant FEDCON Joint Venture takes nothing on its claim for breach of contract (Count I) within its counterclaim in Case No. 8:17-cv-1932-T-36AAS. 8. Defendant FEDCON Joint Venture takes nothing on its claim for breach of bond (Count II) within its counterclaim in Case No. 8:17-cv-1932-T-36AAS. 9. Defendant FEDCON Joint Venture takes nothing on its claim for breach of contract (Count I) within its counterclaim in Case No. 8:17-cv-2650-T-36TGW. 10. Defendant FEDCON Joint Venture takes nothing on its claim for breach of bond (Count II) within its counterclaim in Case No. 8:17-cv-2650-T-36TGW. 11. The Clerk is directed to enter judgment accordingly as to Case No. 8:17-cv-1932-T-36AAS and as to Case No. 8:17-cv-2650-T-36TGW. 12. The Clerk is further directed to close these cases. 191 Case 8:17-cv-01932-CEH-AAS Document 262 Filed 01/28/21 Page 192 of 192 PageID 44996 DONE AND ORDERED in Tampa, Florida on January 28, 2021. Copies to: Counsel of Record and Unrepresented Parties, if any 192

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