April 30, 2019
Petitions for Review of an Order of the District of Columbia
Contract Appeals Board (CAB D-1385)
A. Klimek, Jr. for petitioner/cross-respondent.
C. McKay, Jr., Senior Assistant Attorney General, with whom
Karl A. Racine, Attorney General for the District of
Columbia, Loren L. AliKhan, Acting Solicitor General at the
time the brief was filed, and Stacy L. Anderson, Senior
Assistant Attorney General, were on the brief, for
Fisher, Thompson, and McLeese, Associate Judges.
FISHER, ASSOCIATE JUDGE:
fifteen years ago, Rustler Construction, Inc.
("Rustler") and the District of Columbia entered
into a roadway improvement contract. A series of issues arose
which prompted Rustler to seek additional compensation. The
parties cross-petition for review of an order of the District
of Columbia Contract Appeals Board ("CAB") which
granted Rustler $155, 481.70 on its quantum claim. Finding
neither petition persuasive, we affirm the CAB's
2002, the District of Columbia and Rustler entered into a $5,
217, 550 contract to reconstruct a section of Bladensburg
Road, N.E., in Washington, D.C. The contract was scheduled to
be completed in 360 days and required Rustler to rebuild
approximately three-quarters of a mile of a high-traffic
six-lane highway, all while allowing four lanes of traffic to
flow through the work area. Work was broken down into five
phases. In Phase I, Rustler would remove the existing median
and place temporary asphalt pavement in the area. In Phases
II and III, Rustler would replace the two outside lanes on
either side of the highway. In Phase IV, Rustler would
reconstruct the inside lanes, replace the median, and connect
the lanes. In Phase V, which was later incorporated into
Phase IV, Rustler would remove barriers and prepare the road
on the roadway began in spring 2003. The first major problem
arose prior to the start of Phase II. The parties had agreed
to maintain nine-foot, four-inch travel lanes throughout
construction. However, due to the District's
"miscalculat[ions]," this agreed-upon lane width
could not accommodate buses. The District issued a stop-work
order, halting the construction for twenty days. A revised
traffic plan widened the travel lanes to ten feet for
bus-restricted lanes, and to eleven feet for all other lanes.
This new plan narrowed Rustler's work area by
approximately six feet, eight inches.
problems with this issue became apparent towards the end of
the contract. Reducing the work area impacted five Phase IV
projects: (1) Rustler was unable to use a boom truck to
install granite curbs as originally planned and instead
needed to use a more laborious method; (2) Rustler was unable
to use a concrete paving machine and was required to lay
pavement by hand; (3) removing excavated material took longer
than expected due to the restricted space in which Rustler
was required to load the material onto its trucks; (4)
Rustler could not use the equipment it had planned on using
to excavate around existing manholes, and instead needed to
place ramps over the manholes and to hand-grade the area
around the manholes once excavation was completed; (5)
Rustler was required to spend extra time cutting joint
baskets to the proper length.
second issue arose during Phase II. Part of Rustler's
duties involved removing existing catch basins (storm drains)
and installing new ones in their place. During excavation,
Rustler discovered that the catch basins were on top of an
active high-pressure gas line. Although Rustler had been
aware from the start of the contract that a gas line was in
the vicinity, it did not know the exact location. To
remediate this problem, Rustler relocated the catch basins
into the street and returned at a later time to pour concrete
around the basins. According to Rustler, it took the District
"a good two months" to instruct Rustler how to
respond once the issue was discovered.
third issue involved Potomac Electric Power Company
("Pepco") manholes which were located along the
strip of roadway reconstructed during Phase III. The contract
specifications stated that the forty-one manholes were
"abandoned," so Rustler planned to pave over them.
However, Rustler later learned that the manholes were
"live." In order to keep them functional, Pepco
contractors were intermittently on the scene for some time.
Rustler then paved around the manholes rather than over them
as it had planned.
fourth issue arose between Phases III and IV. The contract
required Rustler to install a thin strip of asphalt between
the new and existing roadbeds in order to allow vehicles to
transition smoothly from lane to lane. While creating this
roadway "tie-in," the parties discovered a
several-inch discrepancy between the height of the existing
roadway and the new one. The District instructed Rustler to
create a wider tie-in than was originally expected. Rustler
had to cut down the old roadway and install a much wider
strip of asphalt between the lanes. The District compensated
"Rustler for the additional work and materials under
existing unit prices for the temporary asphalt," but not
for additional field overhead.
Rustler's Equitable Adjustment Claim
filed a claim for equitable adjustment on November 19, 2009.
After the claim was deemed denied, Rustler appealed to the
CAB. Rustler argued that it was entitled to an equitable
adjustment of $1, 227, 021.37 to cover the "additional
costs in completing the work" as "a result of
defective and changed specifications, differing site
conditions, and other extra contractual activities."
The Entitlement Order
five-day hearing on the matter, the CAB issued an order
determining that Rustler was entitled to an equitable
adjustment for all four of its claims. Entitlement for three
of Rustler's claims-the Phase IV work area reduction,
Pepco manholes, and roadway tie-in-was based on defective
specifications, while entitlement for the catch basin claim
was due to differing site conditions.
determined that Rustler relied on the District's
erroneous specifications that: (1) the traffic during Phase
IV would be maintained in four nine-foot, four-inch lanes;
(2) the Pepco manholes had been "abandoned"; and
(3) the temporary asphalt placed during the roadway tie-in
would be no more than ten inches wide. The District offered
no evidence to suggest that Rustler was aware that the
specifications were defective. The CAB found that the
location of the high-pressure gas line was a differing site
condition and, therefore, Rustler had established entitlement
for the catch basin claim.
than awarding damages, the CAB remanded the "matter to
the parties ...