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The government sought summary judgment on the contractor’s claims, arguing the release language in a modification barred the claims. ASBCA found issues of material fact regarding the release’s scope precluded judgment. It was unclear whether the release was intended to address the contractor’s claims.
Appeal of Pontchartrain Partners, LLC, ASBCA No. 63615
- Appeal – The contractor held a contract for a construction project in the Corpus Christi Ship Channel. It sought an equitable adjustment of over $4 million and a 240-day time extension for alleged design flaws and changes related to Placement Area No. 10. The instant decision specifically addressed the contractor’s claims involving erosion on the south side of the area.
- Government Motion – The government moved for partial summary judgment, asserting these erosion claims were barred by release or accord and satisfaction. Furthermore, the government moved for summary judgment on the contractor’s theories of differing site conditions and commercial impracticability.
- Release – ASBCA denied summary judgment for the government’s argument of release.
- Release Language: The government maintained that a contract modification contained an unambiguous standard release clause, which stated that the agreed-upon price and time adjustments constituted “compensation in full.” The contractor argued there was no release language as the statement never explicitly included the word “release.” The ASBCA found that the language was clearly and unambiguously a release, even without explicitly using the word “release.”
- Scope of Release: Although the modification language constituted a release, the ASBCA found that it did not encompass claims associated with the changes ordered under a different modification. The text of the second modiciation contained no reference to the previous modification or any of the claims, even though both addressed the erosion problem. The first modification addressed work on the inland side of the containment dike, while the second addressed the shoreline side. Thus, a genuine issue of material fact existed regarding how much of the contractor’s claim was barred, as both modifications involved the erosion problem.
- Accord and Satisfaction – Similar to the release defense above, ABSCA found the government failed to meet its burden to establish accord and satisfaction. A genuine issue of material fact existed as to whether the parties intended P0002 to preclude the contractor’s claim related to additional erosion work.
- Differing Site Conditions – ASBCA also refused to grant summary judgment on the differing site condition claim. The contractor presented sufficient evidence suggesting the site conditions were not foreseeable at the time of bidding or performance.
- Commercial Impracticability – The only part of the summary judgment ASBCA granted was regarding the contractor’s commercial impracticability theory. To establish this, the contractor must show that, due to unforeseen events, contract performance was only possible at an excessive and unreasonable cost. Here, the government correctly calculated the overrun cost at 37% and provided supporting case law, showing that this was insufficient to prove impracticability. The contractor relied on its improper calculation method and provided no supporting evidence that 37% was impracticable.
James R. Washington, III, appeared for the contractor. Michael P. Goodman, Erin Zetterstrom, and Clark Bartee of the Army appeared for the government.
— Case summary by Joshua Lim, Assistant Editor.
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