Burnham Associates, Inc.
ASBCA No. 60780
| A.S.B.C.A. | Dec 13, 2017Background
- USACE solicited a contract (award 16 July 2012) for rock removal/dredging in Boston Harbor; solicitation referenced a March 2011 hydrographic survey and noted prior 2010 subsurface investigations.
- The Corps had, unbeknownst to bidders, conducted a March 12–15, 2012 hydrographic survey within six months of dredging; the raw/edited data existed but the Corps did not disclose the 2012 survey in the solicitation.
- Corps personnel edited the 2012 survey data in March–April 2012; the Corps did not calculate volumes from that survey until 8 August 2012 (post-award), according to sworn testimony.
- Burnham won the contract, bid with high unit prices because payable quantity was small, then performed work Aug–Oct 2012; post-dredge survey showed fewer payable cubic yards when compared to the undisclosed March 2012 survey, reducing Burnham’s payable quantity and payment.
- Burnham claimed (1) misrepresentation/reformation based on the undisclosed March 2012 pre-dredge survey (seeking ~$334,464) and (2) $70,144.95 for delays from commercial and recreational vessel traffic; the Board sustained the misrepresentation claim and remanded quantum, but denied the shipping-traffic claim.
Issues
| Issue | Burnham's Argument | Government's Argument | Held |
|---|---|---|---|
| Whether Corps misrepresented payable quantities by failing to use/disclose the March 2012 pre-dredge survey | Corps had the 2012 survey data and negligently (or in bad faith) failed to use/disclose it; bidder relied on solicitation estimate and was harmed | Corps had not completed volume calculations before award and thus did not possess a finalized reduced estimate at solicitation time | Board held Corps liable for misrepresentation: Corps should have based its estimate on the reasonably available 2012 survey data and disclose it; liability sustained and quantum remanded |
| Whether Burnham is entitled to delay damages for shipping/recreational vessel interference | Harbor traffic (commercial and recreational) caused measurable delays on specified dates justifying damages | Contract warned bidders of channel/traffic conditions; delays were caused by third parties and normal harbor activity; no proof traffic exceeded normal/historical levels | Denied: Burnham failed to prove traffic was above normal or that the government caused third-party delays; contract allocated traffic risk to contractor |
Key Cases Cited
- Womack v. United States, 389 F.2d 793 (Ct. Cl.) (agency must use and disclose reasonably available information when preparing estimates; negligent misrepresentation can breach contract)
- Rumsfeld v. Applied Cos., Inc., 325 F.3d 1328 (Fed. Cir.) (failure to disclose post-solicitation information that affects estimates can constitute breach)
- Clearwater Forest Indus., Inc. v. United States, 650 F.2d 386 (Ct. Cl.) (standards for inadequate/negligent preparation of government estimates)
- Medart, Inc. v. Austin, 967 F.2d 579 (Fed. Cir.) (government need not create extraordinary additional information; use of reasonably available data suffices)
- Olympus Corp. v. United States, 98 F.3d 1314 (Fed. Cir.) (government not liable for delays caused by third parties absent contractual provision)
- Bell/Heery, JV v. United States, 739 F.3d 1324 (Fed. Cir.) (contracts must be read to give meaning to all terms)
- Lynch Motors, Inc. v. United States, 292 F.2d 907 (Ct. Cl.) (bidder entitled to rely on solicitation estimates as honest and informed)