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Belcon Incorporated v. District of Columbia Water and Sewer Authority

June 12, 2003

BELCON INCORPORATED, PETITIONER,
v.
DISTRICT OF COLUMBIA WATER AND SEWER AUTHORITY, RESPONDENT.



On Petition for Review of a Decision of the District of Columbia Contract Appeals Board (CAB No. D-829)

Before Terry, Schwelb, and Glickman, Associate Judges.

The opinion of the court was delivered by: Schwelb, Associate Judge

Argued January 9, 2003

The wheels of justice sometimes grind very slowly indeed, and this case, somewhat like the interminable Chancery suit known as Jarndyce v. Jarndyce, *fn1 appears almost to have achieved a state of perpetuity, with no end as yet in sight. In 1983 Belcon Incorporated entered into a contract with the District of Columbia Department of Public Works Water and Sewer Utility Administration (WASUA) *fn2 in which Belcon agreed to provide landscaping for a waste water treatment plant. Belcon completed the project in 1985, but disagreements over payment linger. Seven years after three Administrative Judges of the District of Columbia Contract Appeals Board heard the dispute between Belcon and the District, three new and different Administrative Judges sustained some of Belcon's claims, denied others, and awarded the company $370,741.48, together with interest on that amount. Belcon has asked this court to review the Board's decision, and it seeks an award of an additional $166,311.86, together with a substantial sum of accumulated interest. Concluding that the Board erred in its disposition of several of Belcon's claims, we vacate the Board's decision and reluctantly (in light of the age of the case) remand for further proceedings consistent with this opinion. Foreshadowing the major ruling that follows, we direct that on remand, the Board must not reject uncontradicted evidence submitted by any party without explaining on the record, and in reasonable detail, why it has done so.

I. BACKGROUND

In September 1983 Belcon entered into a contract with the District for Phase I of the Master Landscaping Plan at the Blue Plains Wastewater Treatment Plant. The contract required Belcon to excavate, backfill, and regrade soil; to construct roads, walks, fences, gates, and other structures; and to seed lawns and plant trees and other greenery. All of the work was to be completed within a year. While the work was being done, however, the District asked Belcon to perform additional projects not initially contemplated by the parties and not included in the contract. Belcon agreed to carry out the requested work and substantially finished the project, including all additional tasks, by the end of June 1985.

That should have been that, but unfortunately for all concerned, the parties became embroiled in a contentious dispute over payment for the additional work and for other items. In 1986 Belcon asked the Department's contracting officer to resolve the contested issues. In 1988 the contracting officer determined that some of Belcon's claims were meritorious, and he held that the company was entitled to be paid an additional sum of $36,612.04.

In 1989 Belcon appealed to the Contract Appeals Board from the contracting officer's decision. In August and September of 1993 an eight-day hearing was held before Administrative Judges Zoe Bush (now a judge of the Superior Court), C. Hawkins-Leon, and

T.H. Lee. By far the greatest part of the hearing was devoted to testimony from Belcon's President, Lester J. Belcher, Jr., and there was little contradiction of that testimony in the relatively brief case (well under two days) presented by the District. On October 23, 2000, after a truly extraordinary delay during which the membership of the Board apparently changed, the Board issued its decision, which was signed by Administrative Judges Phyllis W. Jackson, Lorilyn E. Simkins, and Jonathan D. Zischkau. The Board granted some of Belcon's claims, denied others, and awarded Belcon a total of $370,741.48, with interest at the rate of 4% per annum. The Board held that Belcon was not entitled to recover its counsel fees. Belcon filed a timely petition for review. *fn3

II. STANDARD OF REVIEW

We review decisions of the Contract Appeals Board deferentially. The Board's factual findings "shall be final and conclusive and shall not be set aside unless the decision is fraudulent, arbitrary, capricious, or so grossly erroneous as to necessarily imply bad faith, or if the decision is not supported by substantial evidence." D.C. Code § 2-309.07 (2001) (emphasis added). *fn4 Evidence is substantial when "a reasonable mind might accept [it] as adequate to support a conclusion." Epstein, Becker & Green v. District of Columbia Dep't of Employment Servs., 812 A.2d 901, 903 (D.C. 2002). So long as a finding is supported by substantial evidence, we must accept it, "even though there may also be substantial evidence in the record to support a contrary finding." Harrison v. Univ. of District of Columbia, 758 A.2d 19, 22 (D.C. 2000).

"Our review of the [Board's] legal rulings is de novo, for '[i]t is emphatically the province and duty of the judicial department to say what the law is.'" Harris v. District of Columbia Dep't of Employment Servs., 660 A.2d 404, 407 (D.C. 1995) (quoting Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803)). The Board has expertise in contract appeals, and "legal interpretations by tribunals having expertise are helpful even if not compelling." District of Columbia v. Org. for Envtl. Growth, Inc., 700 A.2d 185, 198 (D.C. 1997) (citation omitted). We therefore accord "great weight" to the Board's construction of a government contract, so long as that construction is not unreasonable. Dano Resource Recovery, Inc. v. District of Columbia, 620 A.2d 1346, 1352 (D.C. 1993). The last word, however, is the court's, for "the judiciary is the final authority on issues of statutory construction," Harris, 660 A.2d at 407 (citation omitted), and, obviously, on other legal issues as well.

III. THE DISPUTED CLAIMS

Only five of the sixty claims raised by Belcon before the Board remain at issue. We address each of them in turn.

A. Proposed Change Order (PCO) No. 1 - Borrow Embankment Fill.

Belcon argues that it is entitled to an additional payment of $930.00 under Proposed Change Order No. 1 - Borrow Embankment Fill. "Borrow embankment fill" is fill material, in this case earth, that Belcon was obliged to acquire off-site in order to supplement an inadequate supply of fill material available on-site. Although the Board denied this claim, the District does not oppose it, and we treat the point as conceded. Rose v. United States, 629 A.2d 526, 536-37 (D.C. 1993); Carducci v. Regan, 230 U.S. App. D.C. 80, 86, 714 F.2d 171, 177 (1983). In light of the District's concession, we conclude, notwithstanding the Board's ruling, that Belcon is entitled to an additional award of $930.00 with respect to PCO No. 1.

B. PCO No. 3 - Borrow Structural Backfill.

Belcon asserts that the Board's award of only $148.20, pursuant to Proposed Change Order No. 3 - Borrow Structural Backfill, is premised on a finding of fact that is not supported by substantial evidence. We are constrained to agree.

Structural backfill is fill material, such as gravel or crushed stone, suitable for use under or against structures. Like the embankment fill at issue in PCO No. 1, the structural backfill that is the subject of PCO No. 3 had to be "borrowed" or acquired off-site. The contract price for this work was $26.00 per cubic yard, and it was estimated that 92 cubic yards would be required. Belcon claimed that it provided to the District an amount of structural backfill far in excess of this estimate, specifically 1227.7 cubic yards. The District disagreed, claiming ...


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