United States District Court, District of Columbia
UNITED STATES OF AMERICA, for the use and benefit of AMERICAN CIVIL CONSTRUCTION, LLC, Plaintiff,
HIRANI ENGINEERING & LAND SURVEYING, P.C., et al., Defendants.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
P. Mehta United States District Judge.
dispute between Plaintiff American Civil Construction, LLC
(“Plaintiff” or “ACC”) and Defendants
Hirani Engineering & Land Surveying, PC
(“Hirani”) and Colonial Surety Company
(“Colonial”) arises out of ACC's work as a
subcontractor to Hirani on a federal government construction
project located on the National Mall in the District of
brought this action against Colonial under the Miller Act, 40
U.S.C. § 3133, and also brought a state law claim
against Hirani for breach of contract. As to both claims,
Plaintiff seeks $2, 172, 285.23 in money damages, plus
prejudgment interest, attorney's fees, and costs.
Colonial, in turn, brings a variety of counterclaims against
ACC and asserts that it incurred losses in the amount of
$723, 049.14 to finish the project that ACC failed to
denying Defendants' motion for summary judgment, the
court conducted a five-day bench trial in March 2018. After
the bench trial concluded, the parties submitted proposed
findings of fact and conclusions of law, as well as briefs in
rebuttal. The court held a final oral argument on June 14,
required by Federal Rule of Civil Procedure 52(a)(1), the
court now makes its Findings of Fact and Conclusions of Law.
The court has reviewed the parties' submissions,
carefully considered the evidence presented at trial, weighed
the credibility of the witnesses, and applied the applicable
law. For the reasons set forth below, the court has
determined that Plaintiff has met its burden of proof with
respect to its Miller Act claim against Colonial and its
breach of contract claim against Hirani. On the other hand,
the court finds that Defendant Colonial has not sustained its
burden of proof on its counterclaims.
the court will enter final judgment in favor of ACC. It will
formally do so, however, only after ACC submits a final
damages calculation that is consistent with these Findings of
Fact and Conclusions of Law.
provide clarity and context for these findings of fact and
conclusions of law, the court provides a brief overview of
the undisputed facts underlying this case and then summarizes
the case's procedural history.
2010, the United States Army Corps of Engineers
(“USACE”) issued a solicitation for bids to
construct a levee wall across 17th Street, N.W. in the
District of Columbia, south of Constitution Avenue, N.W. (the
“Project”). Flanked on the west side by the
National World War II Memorial and on the east side by the
Washington Monument, the 380-foot-long levee wall was
designed to prevent the Potomac River from flooding across
the National Mall into downtown Washington, D.C. As designed,
the 17th Street levee wall consists of two permanent
stone-clad levee stem wall sections, one on the east side and
the other on the west side of 17th Street, which sit on a
curved grade beam foundation supported by twenty-four
reinforced concrete caissons running underground across the
street. The grade beam foundation running across 17th Street
contains eight “post pockets.” In the event of a
100-year flood, these pockets are filled with an
eight-foot-tall temporary metal post and aluminum panel
system that connect to the east and west levee stem walls to
block surging floodwaters. The images below illustrate the
a bid process, on September 16, 2010, the USACE awarded
Hirani the contract (“the Prime Contract”) to
construct the 17th Street levee wall for the amount of $3,
833, 097.00. The USACE subsequently awarded “Option
1” to Hirani on December 16, 2010, requiring Hirani to
install stone veneer cladding and coping on the permanent
levee walls for $641, 369.00. As required by Hirani's
contract with the USACE, Colonial issued performance and
payment bonds on behalf of Hirani.
April 4, 2011, ACC and Hirani entered into a fixed-price
subcontract (“the Subcontract”) for $2, 845,
600.00, under which ACC agreed to perform most, but not all,
of Hirani's obligations under the Prime Contract. ACC
began performing under the Subcontract a week later, and
Hirani subsequently subcontracted Option 1 to ACC in the
amount of $613, 650.00.
ensuing years on the Project were beset by a series of
delays, modifications to the scope of the Project, and
work-related disputes. By letter dated April 26, 2013,
two-and-a-half years after it awarded the Prime Contract to
Hirani, the USACE gave notice of its intent to terminate
Hirani. In the days following Hirani's termination, ACC
left the Project site. The USACE subsequently made a demand
against the Performance Bond issued by Colonial, and Colonial
stepped in to complete the Project. With the assistance of
Loewke Brill, a consulting firm, Colonial contracted with
Akima Construction Services, LLC, Lorton Stone, LLC, and
Structural Stone, LLC, to complete the Project, including
Option 1, and did so around November 2014.
filed suit in this court against Hirani and Colonial on April
29, 2014. See Compl., ECF No. 1. Colonial responded
by filing four counterclaims against ACC: (1) two for breach
of contract, one as assignee of Hirani and one as surety; (2)
one for breach of the covenant of good faith and fair
dealing; and (3) one for interference with contractual
relations. See Def. Colonial's Answer &
Countercls., ECF No. 8. With leave of court, Plaintiff filed
a Second Amended Complaint on February 16, 2016, asserting
two claims: (1) breach of contract against Hirani, and (2) a
payment demand under the Miller Act against Colonial,
premised on the payment bond Colonial issued in connection
with the Prime Contract. Plaintiff's Second Amended
Complaint sought quantum meruit damages in the
amount of $2, 070, 185.23. See Second Amended
Compl., ECF No. 26.
discovery, Defendants jointly filed a Motion for Summary
Judgment and a Motion to Strike Plaintiff's Jury Demand.
See Defs.' Mot. for Summ. J., ECF No. 44;
Defs.' Mot. to Strike Jury Demand, ECF No. 45. The court
denied Defendants' Motion for Summary Judgment and
granted Defendants' Motion to Strike the Jury Demand on
June 27, 2017. See Mem. Op., ECF No. 54; Order, ECF
No. 55. Following a delay in the proceedings, the parties
appeared for a Pretrial Conference on February 23, 2018.
See Pretrial Conf. Hrg. Tr. (February 23, 2018), ECF
No. 75. The court thereafter conducted a bench trial over the
course of five days from March 5, 2018, to March 9, 2018.
See Trial Tr. Day 1 A.M. Session (March 5, 2018),
ECF No. 76 [hereinafter Day 1 A.M. Tr.]; Trial Tr. Day 1 P.M.
Session [hereinafter Day 1 P.M. Tr.]; Trial Tr. Day 2 A.M.
Session (March 6, 2018), ECF No. 77 [hereinafter Day 2 A.M.
Tr.]; Trial Tr. Day 2 P.M. Session [hereinafter Day 2 P.M.
Tr.]; Trial Tr. Day 3 A.M. Session (March 7, 2018), ECF No.
78 [hereinafter Day 3 A.M. Tr.]; Trial Tr. Day 3 P.M. Session
[hereinafter Day 3 P.M. Tr.]; Trial Tr. Day 4 A.M. Session
(March 8, 2018), ECF No. 79 [hereinafter Day 4 A.M. Tr.];
Trial Tr. Day 4 P.M. Session [hereinafter Day 4 P.M. Tr.];
Trial Tr. Day 5 A.M. Session (March 9, 2018), ECF No. 80
[hereinafter Day 5 A.M. Tr.].
the bench trial, ACC presented three witnesses: (1) Irene
Stephen, owner of ACC, who also served as Hirani's
on-site Contractor Quality Control Assistant on the Project;
(2) Jitendra Hirani, president of Hirani; and (3) Rick
Janeiro, president of Roubin & Janeiro, Inc., a local
stone contractor. Ms. Stephen, ACC's primary witness,
testified both as a fact witness and as an expert in cost
accounting in the heavy and highway construction industry.
See Day 1 A.M. Tr. at 37:14-95:1; Day 1 P.M. Tr. at
5:10-21:5; Day 2 A.M. Tr. at 6:5-125:17; Day 2 P.M. Tr. at
3:9-112:12; Day 3 A.M. Tr. at 77:1-138:11; Day 3 P.M. Tr. at
3:4-86:6. Mr. Hirani, called as an adverse witness, testified
as a fact witness regarding Hirani's Prime Contract with
the USACE, disputes and delays on the Project resulting from
claimed failures by ACC to submit scheduling data, and
Hirani's termination from the Project. See Day 1
P.M. Tr. at 21:12-107:24. Mr. Janeiro testified as a fact
witness regarding his company's role as ACC's stone
supplier and subcontractor to complete Option 1 of the
Project. See Day 3 A.M. Tr. at 6:7-75:25.
presented two witnesses in their case: (1) Michael Vogt, an
executive vice president of Loewke Brill Consulting Group,
Inc., which Colonial hired in July 2013 to oversee completion
of the Project after Hirani's termination; and (2) Robert
Franklin, the USACE's project engineer for the Project.
Mr. Vogt testified as a fact witness regarding the status of
the Project upon Hirani's termination, the work remaining
under the Prime Contract and Subcontract, and the costs
incurred by Colonial to complete the Project. See
Day 4 A.M. Tr. at 11:6-118:5; Day 4 P.M. Tr. at 3:4-85:11;
Day 5 A.M. Tr. at 6:1-22:21, 98:9-130:20. Mr. Franklin
testified as a fact witness regarding Hirani's and
ACC's performances under the Prime Contract and
Subcontract, the USACE's termination of Hirani, and
Colonial's eventual completion of the Project.
See Day 5 A.M. Tr. at 23:15-97:25. In its rebuttal
case, ACC recalled Irene Stephen. See Day 5 A.M. Tr.
at 139:11-160:13. Both parties introduced a substantial
volume of exhibits.
Defendants rested their case, defense counsel made oral
motions for judgment as a matter of law as to ACC's
Miller Act claim pursuant to Federal Rules of Civil Procedure
50(a) and 52(c), asserting that no reasonable factfinder
could conclude that ACC performed compensable work within one
year of commencing its action as required by the Miller Act,
40 U.S.C. § 3133(b)(4). See Day 5 A.M. Tr. at
161:2-161:20. The court deferred ruling on these motions.
Id. at 161:21-162:3.
the close of trial, each party submitted its proposed
findings of fact and conclusions of law to the court.
See Pl.'s Proposed Findings of Fact &
Conclusions of Law, ECF No. 82 [hereinafter Pl.'s FOF
& COL]; Defs.' Proposed Findings of Fact &
Conclusions of Law, ECF No. 83 [hereinafter Defs.' FOF
& COL]. The parties also submitted opposition briefs.
See Defs.' Rebuttal re: Pl.'s FOF & COL,
ECF No. 86 [hereinafter Defs.' Rebuttal]; Pl.'s
Response re: Defs.' FOF & COL, ECF No. 87
[hereinafter Pl.'s Rebuttal]. The court held oral
argument on these submissions on June 14, 2018. See
Oral Arg. Tr. (June 14, 2018), ECF No. 90 [hereinafter Final
an action tried on the facts without a jury . . . the court
must find the facts specially and state its conclusions of
law separately.” Fed.R.Civ.P. 52(a)(1). “The
findings and conclusions . . . may appear in an opinion or a
memorandum of decision filed by the court.”
Id. “The [c]ourt's findings must be
sufficient to indicate the factual basis for the ultimate
conclusion.” Paleteria La Michoacana, Inc. v.
Productos Lacteos Tocumbo S.A., 188 F.Supp.3d 22, 34
(D.D.C. 2016) (internal quotation marks omitted). However,
“[i]n setting forth the findings of fact, the court
need not address every factual contention and argumentative
detail raised by the parties, [n]or discuss all evidence
presented at trial.” Moore v. Hartman, 102
F.Supp.3d 35, 65 (D.D.C. 2015) (internal quotation marks and
citations omitted). Instead, “‘the judge need
only make brief, definite, pertinent findings and conclusions
upon the contested matters'” in a manner that is
“sufficient to allow the appellate court to conduct a
meaningful review.” Wise v. United States, 145
F.Supp.3d 53, 57 (D.D.C. 2015) (quoting Fed.R.Civ.P. 52(a)
advisory committee note to 1946 amendment).
litigant bears the burden of proving each element of its
claim by a preponderance of the evidence, a standard that
“requires a factfinder to decide that the existence of
a fact is more probable than not.” See Window
Specialists, Inc. v. Forney Enters, Inc., 106 F.Supp.3d
64, 88 (D.D.C. 2015) (citing Concrete Pipes & Prods.
of Cal., Inc. v. Constr. Laborers Pension Trust for S.
Cal., 508 U.S. 602, 622 (1993)). As the factfinder, the
court “must evaluate the raw evidence, finding it to be
sufficiently reliable and sufficiently probative to
demonstrate the truth of the asserted proposition with the
requisite degree of certainty.” Bensayah v.
Obama, 610 F.3d 718, 725 (D.C. Cir. 2010) (quotation
marks and citation omitted).
these principles in mind, the court makes the following
findings of fact:
Plaintiff American Civil Construction (“ACC”) is
a Maryland limited liability company. At all times relevant,
ACC was engaged in the business of heavy and highway civil
Defendant Hirani Engineering & Land Surveying
(“Hirani”) is a New York corporation.
Defendant Colonial Surety Company (“Colonial”) is
a Pennsylvania surety corporation.
PROJECT AND PRIME CONTRACT
On or about June 25, 2010, the United States Army Corps of
Engineers (“USACE”) issued a solicitation for a
fixed-price construction proposal for a project to build a
levee flood wall across 17th Street, N.W. in the District of
Columbia, between Constitution and Independence Avenues, N.W.
Pl.'s Ex. 10, at 37; Pl.'s Ex. 11.
The construction project is known as the “Washington
D.C. and Vicinity, Local Flood Protection Project, 17th
Street Closure Structure” (the “Project”).
Pl.'s Ex. 11.
The Project involved the installation of twenty-four
reinforced concrete caissons embedded approximately five to
ten feet into solid bedrock. These twenty-four caissons
support a 380-foot long, curved grade beam foundation.
Sitting on top of this grade beam foundation are two
permanent 120-foot levee stem wall sections, one on the east
side and one on the west side of 17th Street.
The Project also required, among other things, construction
of a temporary eight-foot high protective stockade wood fence
around the construction work areas; regrading of disturbed
areas; temporary maintenance of traffic barriers and signs
during partial closures of 17th Street to vehicle traffic;
and landscaping (tree and sod planting).
On August 27, 2010, Hirani submitted its bid proposal, in the
following amounts: (1) $3, 833, 097.00 for the base contract
work of the Project, excluding any options that the USACE may
exercise during the course of the Project; (2) $641, 369.00
for installing stone veneer on the levee walls (“Option
1”); and (3) $99, 125.00 for planting new trees and sod
on the east side of 17th Street (“Option 2”).
See Pl.'s Ex. 17, at 1, 3-6.
On September 16, 2010, the USACE awarded Hirani Contract No.
W912DR-10-C-0093 (the “Prime Contract”),
accepting Hirani's base contract work bid of $3, 833,
097.00 for the construction of the Project. See Id.
The Prime Contract contemplated completion of the Project by
October 12, 2011, one year from issuance of the Notice to
Proceed dated October 13, 2010. Pl.'s Ex. 56 at 3.
The Prime Contract required Hirani to obtain a surety bond.
Pl.'s Ex. 17 at 3.
On October 1, 2010, Colonial, as surety, issued a performance
bond and payment bond in the sum of $3, 833, 097.00, each
bearing the bond number CSC-218890, on behalf of Hirani, as
principal, and the United States of America, as obligee.
See Pl.'s Exs. 24, 25.
SUBCONTRACT WITH ACC
On April 4, 2011, six months after the USACE awarded the
Prime Contract to Hirani, ACC and Hirani entered into a
written subcontract (the “Subcontract”), under
which ACC would perform specified work on the Project, as
defined by the Subcontract. See Pl.'s Ex. 54
[hereinafter Subcontract], at 6-16.
Also, on April 4, 2011, Hirani separately retained Irene
Stephen, a co-owner and an officer of ACC, to serve as
Hirani's “Alternate Contractor Quality Control
System Manager” and “Project Quality Control
System Administrator” on the Project. See
Pl.'s Ex. 77 at 16-18. Ms. Stephen's responsibilities
included, among other things, (a) to “[a]ssist with the
conducting on a continuing basis, sufficient daily follow-up
reviews of work to ensure that all workmanship and
materials” conform to Project specifications; (b) to
“[a]ssist with coordination and management of all
quality control and materials testing functions”; (c)
to “[a]ssist with the preparation, management, and
submission of all Daily Quality Control Reports to the
Owner's Representative each workday at the
project”; and (d) to “[a]ssist with the
management, review, and tracking of” construction
efforts, construction deficiencies, and any stoppages or
cessations of work. Id. at 17-18.
ACC first began performance under the Subcontract beginning
on April 11, 2011. Pl.'s Ex. 31 at 1; see Day 2
A.M. Tr. at 34:16-34:17.
The Subcontract was a fixed-price agreement in the amount of
$2, 845, 600.00 for “all labor, services, materials,
equipment or other items acquired, performed, furnished or
used . . . with respect to the Work, ” along with
applicable federal, state, and local taxes. See
Subcontract at Art. III, § 3.1.
Pursuant to the Subcontract, ACC was required to provide the
entire scope of work to construct and manage the Project,
except for Project management, quality control, and
miscellaneous metal structures and panels and related work
assigned to Hirani under the Prime Contract. See Id.
at Art. I, §§ 1.1, 1.4.
Schedules A and B of the Subcontract define in greater detail
the work ACC was required to perform. See Id. at
Art. I, §§ 1.2, 1.3; id. at Sch. A-B.
As provided in Schedule B, among other tasks, ACC was
required to “provide project supervision
(Superintendent, Site Safety Officer, Traffic Control
Officer) except for a project manager to act on behalf of
[Hirani]”; “work with the Hirani project manager
in submitting monthly requisitions, progress updates”;
“provide all field labor to maintain the site and do
general cleanup as required”; “[f]urnish [and]
install all fencing (site, silt, tree protection, temporary),
and relocate as per the drawings and specifications with
appropriate signage”; “provide all grading
including all excavation & backfill as per the plans and
specifications”; and “[f]urnish and install all
stone masonry work for base scope of work: curbs, grade beam,
stone coping and cladding adjacent to end post channels &
expansion joints as per the plans and specifications.”
See Id. at Sch. B, Pts. 2, 5, 8, 11, 14, 19.
In the Subcontract, Hirani reserved the right to change, add,
or eliminate portions of the Work “at any time
whatsoever, whether the Work or any part thereof shall or
shall not have been completed, ” by written order
submitted to ACC, and ACC agreed not to seek “extra or
additional compensation on account of any such work, unless
same shall have been done pursuant to a written order, signed
by” a designated Hirani representative. See
Id. at Art. IV, § 4.1.
ACC additionally agreed that, in the event a “dispute,
controversy [, ] or question” arose in the
interpretation of the Subcontract, it would not stop or delay
performance of the Work or delivery of labor or material, but
would continue to work “pending the determination of
such dispute or controversy.” See Id. at Art.
XIV, § 14.1.
The Subcontract specified the grounds for contract
termination. See Id. at Art. XV, § 15.1.
Under the termination for default provision, the Subcontract
provided that if ACC “fail[ed] to timely provide labor,
services, and/or materials for the Project in accordance with
the terms of [the] Subcontract, then Hirani [retained] the
right at any time upon 7 days written cure notice to [ACC] to
terminate [the] Subcontract and require [ACC] to cease
work.” See id.
Under the termination for convenience provision, the
Subcontract provided that if the USACE “ch[ose] to
terminate Hirani for the convenience of the [USACE], then
[ACC] shall be similarly terminated, and the obligations and
rights of the parties shall be in accordance with the
provisions of the prime contract for such termination for
convenience.” See id.
The Prime Contract required Hirani to “[e]nsure that
the work in progress, and the finished product, complies with
all quality requirements of the plans and
specifications.” Pl.'s Ex. 17 at 2.
Section 01 32 01 of the USACE's Construction
Specifications relates to scheduling for the Project and
details requirements for the creation, production, and
updating of the Project Schedule. See Pl.'s Ex.
12 [hereinafter Project Schedule Specifications], at 26-39.
The Project Schedule was required to be a forward-planning
and project monitoring tool for the entire Project, including
the design and construction sequences. The Schedule was
required to show the sequence in which the work on the
Project would be performed and dates on which all scheduled
activities would be started and completed. Id. at
The Project Schedule Specifications required that an
authorized representative be designated by Hirani “to
be responsible for the preparation of the schedule and all
required updating (activity status) and preparation of
reports.” Id. at § 1.2; see Day
1 P.M. Tr. at 64:11- 65:7.
Hirani was responsible for the scheduling of construction for
the Project, and Hirani management personnel were required to
actively participate in the development of the Schedule.
Project Schedule Specifications at § 3.1.
ACC was required to contribute in developing and maintaining
an accurate Project Schedule. Id.
Hirani was required to provide to the USACE a Schedule Status
Report at least on a monthly basis. Id. at §
If the USACE Contracting Officer determined that Hirani was
falling behind the approved schedule, the Contracting Officer
could require increased work and overtime operations until
the approved rate of progress was restored. Hirani's
failure to comply with the requirements of the USACE
Contracting Officer would constitute grounds for a
determination that Hirani was not prosecuting the work with
sufficient diligence to ensure completion of the Project
within the time specified in the Prime Contract. Id.
at §§ 3.1.2, 3.1.3.
The Subcontract between Hirani and ACC incorporated the
USACE's Construction Specifications and required ACC to
perform the work under the Subcontract “in strict
compliance with the drawings, specifications, addenda, and
bulletins.” See Subcontract at Art. I, §
1.2; Day 1 A.M. Tr. at 68:13-68:17.
According to the Subcontract, the scheduling of all
construction operations at the Project was to be
“mutually agreed” upon between ACC and Hirani
and, “if requested, ” ACC was required to
“furnish all scheduling information in such form and
detail as required by [Hirani], to the satisfaction [of]
[Hirani], ” within seven days of the request. ACC was
also required to “update and/or revise such information
as requested by [Hirani] at any time, either prior to or
during the performance of [ACC's] [w]ork.”
See Subcontract at Art. II, § 2.2.
In or around April 2011, Hirani hired Tom Miller of JSM
Associates, Inc. as the scheduler for the Project tasked with
producing an initial schedule, or “Baseline Schedule,
” and periodically updated schedules for the Project.
Day 1 A.M. Tr. at 78:9-78:22; see Day 1 P.M. Tr. at
39:23- 41:15, 64:11-65:7.
Hirani submitted the Baseline Schedule to the USACE, as
agreed upon by both Hirani and ACC, and the USACE
subsequently approved it in June of 2011. See
Pl.'s Ex. 45; Day 1 A.M. Tr. at 78:23-81:24.
The Baseline Schedule projected a Project completion date of
December 9, 2011. See Pl.'s Ex. 45 at 18.
After the USACE approved the Baseline Schedule, neither ACC
nor the USACE agreed to an updated Project schedule again.
Day 1 A.M. Tr. at 81:22-82:4.
Hirani submitted updated schedules to the USACE an additional
four times: (1) on January 26, 2012, Pl.'s Ex. 46; (2) on
April 23, 2012, Pl.'s Ex. 47; (3) on October 2, 2012,
Pl.'s Ex. 48; and (4) on December 12, 2012, Pl.'s Ex.
49. The USACE
rejected each of these submissions. See Pl.'s
Exs. 46, 47, 48, 49; see also Day 1 A.M. Tr. at
85:13-85:21 (explaining that designation of “E”
on each cover page signified rejection by the USACE).
Throughout its performance of the work, ACC supplied
scheduling information to Hirani in the form of (1)
“Basic Outlines of Dates for Work Performed at the
Site, ” a backward-looking spreadsheet summarizing work
performed, and the dates of work performed, by ACC,
see Pl.'s Ex. 29; and (2) three-week
“look-ahead” schedules, which as the name implies
provided a projection of work to be accomplished in the
ensuing three weeks, see Pl.'s Ex. 41.
Additionally, Hirani's own Quality Control Reports, which
Ms. Stephen prepared on a daily basis, provided information
about work that ACC had accomplished on a given day.
See Pl.'s Ex. 30.
ACC further supplied an “Option 1 Schedule”
reflecting when ACC intended to complete Option 1 of the
Prime Contract, i.e., the stone cladding on the stem walls.
See Pl.'s Ex. 139 at 3- 5.
On February 18, 2013, Hirani issued a Show Cause letter to
ACC, in which Hirani requested that ACC provide a proposed
schedule for completing the Project with a contract
completion date of April 19, 2013. See Defs.'
Ex. 54 at 2.
The Show Cause letter was the first time, in writing, that
Hirani had informed ACC that the scheduling information ACC
had submitted was unsatisfactory in form or detail, in the
manner provided in the Subcontract. See Defs.'
Ex. 54; see also Subcontract at Art. II,
Additionally, the Show Cause letter was the first time, in
writing, that Hirani had asked ACC to update or revise any
unsatisfactory scheduling information, in the manner provided
in the Subcontract. See Defs.' Ex. 54; see
also Subcontract at Art. II, §§ 2.1-2.3.
Mr. Hirani testified at trial that Hirani requested
scheduling data, verbally or in writing, from ACC “50
to 100 times” prior to February 18, 2013, but ACC never
delivered it. See Day 1 P.M. Tr. at 35:24-36:12
see also Defs.' Ex. 62 at 6 (asserting in a
letter to ACC dated March 22, 2013, that “ACC has
failed to provide the necessary information required to
maintain a progress schedule for the last 20 months
on the [P]roject as requested by Hirani . . . and did not
provide written justification of the delays per the schedule
specification”) (emphasis added).
The court does not find this testimony to be credible.
Defendants presented no evidence, written or testimonial, to
corroborate Mr. Hirani's assertion that ACC left
unanswered Hirani's demands for satisfactory scheduling
Defendants did not submit proof of any written
demand by Hirani, in any form (e.g., letter, email,
handwritten note), for scheduling information from ACC during
the nearly 20 months that passed between approval of the
Baseline Schedule in June 2011 and the Show Cause letter on
February 18, 2013. The voluminous documentary evidence showed
that ACC maintained copious records concerning the Project,
including of its communications with Hirani. The court finds
it utterly implausible that, if as Mr. Hirani testified, he
demanded scheduling information from ACC dozens of times
without success before February 18, 2013, that there would be
no written record whatsoever of at least one such
Defendant presented no testimonial evidence to corroborate
Mr. Hirani's claim regarding unanswered demands for
scheduling information, including from Eric Hirani, Mr.
Hirani's son, who was physically present at the Project
more often than his father.
Once more, beyond Mr. Hirani's incredible testimony,
there is no evidence in the record that ACC ever refused,
verbally or in writing, to provide Hirani with updated
scheduling information as required by § 2.2 of the
Subcontract and Section 01 32 01 of the USACE's
ON THE PROJECT
On April 8, 2011, four days after Hirani entered into the
Subcontract with ACC, the USACE issued a Cure Notice to
Hirani requiring the following corrective actions to cure
Hirani's performance problems on the Project to Dated:
(1) resubmit an approvable Contractor Quality Control plan;
(2) designate a qualified Contractor Quality Control System
Manager; (3) resubmit an initial one-year Project schedule
with a completion date of October 12, 2011; (4) supply
construction submittals; and (5) provide proof that competent
Project Management staff is in place to manage the Project.
See Pl.'s Ex. 56.
On August 26, 2011, the USACE issued a Change Order AD to
Hirani, providing a non-compensable time extension of 48
calendar days, thereby extending the substantial completion
date for the entire Project to November 30, 2011. Pl.'s
Ex. 40 at 3-4.
Over one year later, the Project remained unfinished. On
December 16, 2012, the USACE issued a unilateral modification
to the Prime Contract through Change Orders AQ, AY, BF, and
BJ. See Pl.'s Ex. 123. The contract completion
date for the Prime Contract was extended by 60 calendar days
because of these modifications, resulting in an expected
Project completion date of January 29, 2012. See
Pl.'s Ex. 123 at 5.
Change Order BJ, known as “East Side Grade Beam
Adjustment, ” required Hirani to supply the labor,
equipment, and materials to trim concrete and rebar in the
areas where the grass met the grade beam in order to allow
grass to grow in that area. See Pl.'s Ex. 123 at
4; Day 2 A.M. Tr. at 56:4-58:16.
From July 3, 2012, to April 23, 2013, the USACE issued
numerous unilateral change orders and constructive change
directives to Hirani, who in turn subcontracted the work to
ACC to complete these change orders. See Pl.'s
Ex. 40 at 34-69.
On April 5, 2013, the USACE issued Change Order BL to Hirani,
providing a non-compensable time extension of 180 calendar
days, thus extending the Project completion date from January
29, 2012, to July 27, 2012. See Pl.'s Ex. 40 at
61-62. According to Change Order BL, the USACE authorized the
additional time due to “120 days [ ] for concurrent
delay and 60 days . . . for work stoppage due to weather
impacts.” Id. at 62. The USACE identified the
“concurrent delay” as related to, among other
things, “East and West grade beam adjustment” and
“Additional west side grading.”
1 AND THE GEOMETRY “BUST”
Section 02 00 00 of the USACE's Construction
Specifications relates to the stone cladding and coping to be
affixed to the permanent levee walls and details requirements
for its completion. See Pl.'s Ex. 12, § 27
On December 17, 2010, the USACE issued a modification
exercising Option 1 in the amount of $641, 369.00, requiring
Hirani to install the stone cladding and coping on the
permanent levee walls. This modification increased the Prime
Contract from $3, 833, 097.00 to $4, 474, 466.00.
See Pl.'s Ex. 26.
On August 12, 2010, the USACE issued Amendment No. 0003,
modifying the Site Stone Cladding Specification. The
Amendment specified American Granite, as supplied and
fabricated by Champlain Stone Ltd., as the source of cladding
and coping stones for the levee wall façade and the
granite pavers on the exposed grade beam surface. Amendment
No. 0003 further provides that “only the stone from
Champlain Stone, Ltd. has been presented and approved by the
Commission of Fine Arts, the National Capitol Planning
Committee, and the National Park Service.” According to
the Amendment, if Hirani were to select a stone from any
other manufacturer, Hirani would be responsible for obtaining
approval from those organizations. Pl.'s Ex. 15.
The USACE and National Park Service wanted the color of the
stone cladding on the levee walls to match the color of the
stone on the Lockkeeper's House, a historical building on
the corner of 17th Street and Constitution Avenue. Day 3 A.M.
Tr. at 21:21-23:19.
On December 14, 2011, ACC executed Change Order No. 001 to
the Subcontract in the amount of $613, 650.00, in which
Hirani awarded Option 1 to ACC to complete the stone cladding
and coping work on the permanent levee walls. Pl.'s Ex.
On or around May 18, 2011, ACC received sample American
Granite stones, supplied by Champlain, the only supplier
contractually permitted to provide stone for the Project. ACC
visited the Lockkeeper's House to compare the stone
samples with the existing stone façade on the
Lockkeeper's House and found they did not match.
See Pl.'s Ex. 31 at 139-40.
The following year, on or around April 5, 2012, ACC learned
that there was a geometry “bust” problem with
Option 1, meaning that the stone cladding could not be
installed as required by the Project plans because the
structural drawings and the architectural ...