Government’s motion to compel production of documents is granted. The contractor appealed change and differing site condition claims. The government moved to compel production of the information the contractor used in preparing its bid. The board granted the motion reasoning that both of the contractor's change and differing site conditions claims depended on information the contractor relied on in preparing its bid. Thus, the contractor’s bid preparation materials were relevant to the appeal and thus discoverable.
Corinthian-WBCM Joint Venture had a contract with the Navy to widen a road on a Marine base. Corinthian filed several requests for equitable adjustment with the agency, seeking compensation for changes and differing site conditions. The Navy denied the requests. Corinthian submitted a certified claim reiterating the requests, which was also denied.
Corinthian appealed to the ASBCA. The Navy filed a motion to compel Corinthian to produce the information it relied on in preparing its proposal. In particular, the Navy sought worksheets, historical data, subcontractor quotes, and guides it used to prepare its price.
The board noted that it is permitted to authorize discovery and depositions under the Contract Disputes Act. Although not binding, the board looks to the Federal Rules of Civil Procedure for guidance in discovery disputes. Federal Rule 26(b) permits discovery regarding any nonprivileged matter that is relevant to a party’s claim or defense and proportional to the needs of the case.
Applying this standard, the board found that Corinthian must produce the information it relied on in preparing its because that information was relevant to its claims. For instance, for one its differing site condition claims, Corinthian alleged that it discovered an existing water line that differed from the drawings provided by the Navy. To prove a differing site condition, a contractor must show that it relied on the documents provided by the agency in preparing its bid. Thus, Corinthian’s bid preparation documents were relevant as to whether it relied on the Navy’s drawings in preparing its bid.
Additionally, Corinthian asserted that the Navy had changed its requirements by not allowing the company to purchase environmental credits from the state of Virginia. The board reasoned that the alleged change issue broached a matter of contract interpretation. Where a contractor seeks recovery based on their interpretation of a contract, they must show that they relied on that interpretation in submitting their bid. Thus, again, documents that Corinthian relied on in preparing its bid were relevant to the claim.
Corinthian is represented by Vivian Katsantonis and Jonathan R. Wright of Watt, Tieder, Hoffar & Fitzgerald, LLP. The agency is represented by Craig D. Jensen, Sean P. Morgan, Devin A. Wolak, and Anthony Hicks of the Navy.