The government’s motion to dismiss supplemental claims raised after discovery in the appellant’s initial claim and appeal is denied, where the contractor was not required to raise claims of superior knowledge and negligible estimate immediately upon arriving on the job at the construction site. The board held the contractor plausibly alleged that it did not have a basis to challenge the agency’s pre-award conduct until discovery, when it obtained information about various engineering analyses available to the agency prior to award but never shared with offerors.
Amec Foster Wheeler Environment & Infrastructure Inc. (now known as Wood Environment & Infrastructure Solutions Inc.) appealed the National Park Service’s denial of its claim under a construction contract. The government moved to dismiss the claims raised in an amended complaint, arguing that these additional claims failed to state claims of superior knowledge and negligent estimate on which the board could grant relief.
In September 2011, NPS awarded Amec a task order for construction work and repairs at Alcatraz Cellhouse. Amec alleged that it substantially completed the project in June 2014. This case involves two appeals. In CBCA 5168, Amec appealed a contracting officer’s decision denying a certified claim for an equitable adjustment and an extension of 521 days. Amec’s complaint, filed in January 2016 with its first notice of appeal, seeks $12,723,467 for Amec and two subcontractors under theories of constructive change and breach of the duty of good faith and fair dealing.
In its claim, Amec alleged NPS provided inadequate specifications and significantly changed the work, which caused the default of Amec’s primary construction subcontractor, which Amec replaced with a more expensive subcontractor. During discovery, Amec alleged alternative grounds for largely overlapping monetary relief.
Amec also submitted a new certified claim to the NPS CO for $13,236,781, which the appellant claimed were the costs to complete the project. The grounds for relief in this claim were that NPS withheld superior knowledge from Amec prior to award, negligently performed an estimate that affected the statement of work, and breached a pre-award duty of good faith and fair dealing. When this claim was denied, Amec filed an amended complaint, asserting that this claim involved arguments and facts arising before contract award, not after, which Amec only learned during discovery.
In its amended complaint, Amec alleged that NPS had access to analyses by an engineering firm retained by NPS while the agency was preparing the solicitation, and therefore NPS either knew or should have known that (1) the Alcatraz prison was “crumbling” faster than bidders were ultimately told, and that (2) the contractor would need to replace more structural beams and provide the beams with more extensive shoring than the statement of work indicated. Amec alleged NPS withheld this information to the detriment of bidders.
The agency moved to dismiss, arguing that Amec’s claims of superior knowledge and negligent estimate are either barred by the statute of limitations or insufficiently pleaded. The government argued that Amec knew when it began work that the solicitation allegedly did not accurately reflect the site conditions. The agency also argued that Amec’s pleadings established that NPS did not give the appellant misleading information.
The board disagreed, finding that Amec had alleged the “components” of a timely superior knowledge claim and a timely negligent estimate claim in enough detail to overcome the motion to dismiss and proceed to the hearing.
The board found that the government’s argument that the claims were time-barred ignored the legal distinctions between the original claims and the amended complaint. The government argued that Amec could have asserted its superior knowledge claim as soon as it arrived on the job, given the alleged differences in the site conditions and work required.
However, the board found it plausible that Amec did not know enough to assert its claims until discovery took place in its first claim. Amec’s amended complaint alleged that NPS had knowledge [before award] of Alcatraz’s continually deteriorating condition [and] unique load paths, and of the harmful effects that the deterioration and the load paths could have on the project in combination. Amec argued it did not have this information, could not have otherwise discovered it, and could not have reasonably expected to acquire it. If proven at the hearing, those allegations could make the superior knowledge claim timely.
The board was not convinced that “negligent estimate” was the right legal label for the claim, as opposed to defective specifications or constructive change. However, the board noted that Amec described its negligent estimate claim as an “alternative” to its superior knowledge claim, based on similar operative facts, and therefore the board found the amended complaint plausibly alleged that Amec could not have known about the allegedly negligent failure of the agency to account for the engineering analyses until it received the relevant documents during discovery.
The board declined to endorse the government’s contention that a contractor should consider asserting every conceivable legal theory of relief as soon as it encounters an unforeseen condition. A contractor cannot in good faith assert a claim based on withholding of superior knowledge or similarly misleading conduct unless the contractor has a solid evidentiary basis to allege such conduct.
The board also disagreed with the government’s position that Amec’s pleadings undermined its arguments, particularly given the myriad technical issues involved. While the government might prevail at the hearing, the board declined to reject Amec’s allegations in ruling on a motion to dismiss.
Finally, DOI urged the board to dismiss counts one and two of the amended complaint in CBCA 6298 on the grounds that Amec could obtain the same relief under the change orders and constructive change theories that are at issue in CBCA 5168. However, the board explained that Amec is the “master of its complaint” and indeed, sought more money in the amended complaint than in its initial claim.
Amec Foster Wheeler Environment & Infrastructure Inc. is represented by Chad V. Theriot and William E. Underwood of Jones Walker LLP. The government is represented by Colleen M. Burnidge and Amy M. Siadak, Office of the Solicitor, Department of the Interior.
