L.C. Gaskins Construction Co., Inc.
ASBCA No. 58550, 59901, 59902
A.S.B.C.A.Jun 9, 2017Background
- Contract with NAVFAC to repair Hangar 1552; Gaskins subcontracted DACA to abrasive-blast and recoat 34 external trusses and dispose of spent blast debris.
- RFP included mixed and internally inconsistent provisions about disposal: several sections/attachments indicated waste was "regulated, non-hazardous" and directed on-site disposal through Mayport HWSF, while an amendment added a spec (Part 5 §3.6.6) saying dispose off‑site. Gaskins’ proposal stated it would dispose on-site through Mayport HWSF and that proposal language was incorporated into the contract.
- Pre-bid paint testing (included in RFP) reported metals (lead, chromium) but stated TCLP results did not exceed hazardous-waste thresholds; offerors were told to treat blast grit as regulated waste. Gaskins and DACA bid assuming non-hazardous disposal/off‑site pricing.
- During performance, testing of spent blast media later produced TCLP results showing hazardous chromium levels. The CO directed on‑site disposal at Mayport HWSF, required revised sampling plans, restricted use of third‑party vacuum boxes and required transfer into DLA containers; Gaskins/DACA disputed impacts, DACA was later terminated by Gaskins and replaced by Mansfield.
- Board trial addressed entitlement only. Board: (1) rejected government fraud‑in‑inducement defense regarding disposal; (2) found a Type I differing site condition (hazardous TCLP results) but limited Gaskins’ entitlement; (3) awarded some excusable time (48 days) and limited compensable delay (25 days for delayed approval to erect additional containments), denied most delay/compensable claims; (4) sustained government claim for some welding‑inspection costs but denied liquidated damages claim because contractor was entitled to additional excusable days.
Issues
| Issue | Plaintiff's Argument (Gaskins) | Defendant's Argument (Navy) | Held |
|---|---|---|---|
| Fraud/misrepresentation in inducement re: disposal (did Gaskins intend to dispose off‑site despite proposal saying on‑site?) | Proposal statement that debris would go to Mayport HWSF was inadvertent or inconsistent with RFP; no fraudulent intent. | Gaskins never intended to perform on‑site disposal and misled the government at award. | No fraud proven. Board finds no evidence of intent to deceive; proposal language stood and contract ambiguity further defeats fraud claim. |
| Type I differing site condition — hazardous TCLP results in spent blast debris (did conditions materially differ and cause entitlement?) | RFP and tests indicated non‑hazardous/regulated waste; discovery of hazardous TCLP chromium was unforeseeable and caused costs/delays. | RFP disclosed metals and contractor should have anticipated risks; no differing condition. | Board finds a Type I differing site condition: solicitation indicated non‑hazardous regulated waste; hazardous TCLP results materially differed and were unforeseeable given the contract and RFI silence. |
| Entitlement to costs/time for on‑site disposal, PPE, transfers, secondary containment, and delay (what relief flows from differing condition?) | Costs and delays from on‑site disposal, contaminated PPE, transfers to DLA containers, additional containments, sampling plan delay, replacement of DACA, and other impacts are compensable. | Contract (and incorporated proposal) required on‑site disposal; many delays/consequences were contractor responsibility or not critical path. | Mixed: Board holds Gaskins was contractually required to dispose on‑site (proposal + order‑of‑precedence) so no adjustment for on‑site disposal; Gaskins entitled to certain direct costs (PPE disposal/replacement for original workforce and costs caused by government delay in providing DLA containers, and cost of additional intermediate‑coating work beyond Mod P00003 reimbursement). No compensable or excusable delay for most claimed items except 48 days excusable for the intermediate‑coating issue (net of mod days) and 25 days compensable for government delay approving additional containments. Replacement of DACA, most delay claims, and Perry Roofing claims denied. |
| Government affirmative claims: liquidated damages and costs for defective welding/deficient QC | N/A | LDs for 32 days and $80k for welding inspection and Phase II suspension costs. | LDs denied: contractor was entitled to 48 days excusable delay, negating LD assessment. Government may recover welding inspection costs but not the pro rata Phase II suspension damages (government’s Phase II damage allocation premised on a different delay number). |
Key Cases Cited
- Comtrol, Inc. v. United States, 294 F.3d 1357 (Fed. Cir. 2002) (elements for Type I differing site condition).
- H.B. Mac, Inc. v. United States, 153 F.3d 1338 (Fed. Cir. 1998) (differing site condition and contractor reliance).
- P.J. Maffei Bldg. Wrecking Corp. v. United States, 732 F.2d 913 (Fed. Cir. 1984) (contract indications may justify bidder expectations about latent conditions).
- Randa/Madison Joint Venture III v. Dahlberg, 239 F.3d 1264 (Fed. Cir. 2001) (interpretation from viewpoint of a reasonable contractor).
- J.E.T.S., Inc. v. United States, 838 F.2d 1196 (Fed. Cir. 1988) (fraud in inducement can render a contract void ab initio).