¹ Whether the USACE Withheld Superior Knowledge of a Minimum Pipe Size Plaintiff argues the government failed to disclose its superior knowledge of the 12” minimum sufficient discharge pipe size in the 2014 solicitation. Pl.’s MSJ at 65. According to plaintiff, a 12” discharge pipe was necessary to do the project, evidenced by the fact that four out of the five solicitations preceding 2014 required “[a] hydraulic (pipeline) dredge plant of sufficient size (minimum 12” at discharge).” Id. at 61–62 (citing the 2002, 2007, 2009, and 2011 solicitations for dredging the waterway); see also Ex. J. at 78 (the 2015 resolicitation reinserted the 12” minimum discharge pipe size). The government withheld the pipe size information to increase competition on the solicitation, argues plaintiff. Pl.’s MSJ at 65. Plaintiff states it “was led to believe that its Toyo pumps, with their 10” pipes, would be sufficient to move the described materials.” Id. Plaintiff asserts the minimum pipe size qualifies as superior knowledge because the Competition in Contracting Act (“CICA”) required the government to use the least restrictive specifications to complete the job in the pre-2014 solicitations. Pl.’s Reply at 22–23 (citing 41 U.S.C. § 253(a) (1994); 10 U.S.C. § 2305(a)(1) (1994); 48 C.F.R. §§ 11.002(a)(1)(ii), 14.101(a) (1998)). 9 Therefore, plaintiff argues if the minimum 12” pipe size was the least restrictive specification before 2014, then it must have been the minimum sufficient pipe size in 2014. Id. The government responds, “[t]here is no evidence in the record to support [plaintiff’s] assertion that USACE believed that ‘a narrower pipe was not sufficient’ at the time of the project 9 The statute plaintiff cites, 41 U.S.C. § 253(a), last appeared in the United States Code in 2011, when Congress recodified title 41. See generally Pub. L. No. 111-350, 124 Stat. 3677 (2011). The language of former § 253(a) now appears in 41 U.S.C. § 3301 (2018). - 33 - solicitation, or at any time at all for that matter.” Def.’s Cross-MSJ at 42. According to the government, eliminating the minimum pipe size requirement was an effort to create a “performance specification” based solicitation. Id. (citing Def.’s Cross-MSJ App. at 480 (“[T]he whole point of a performance contract, performance-based contract, is that we don’t dictate means and methods. If we wanted to do that, we would have put it in the specs and it would not have been a performance-based contract.” (deposition of contracting officer Elizabeth Chien at 71:2-8)). The government argues there is no evidence 12” is the minimum size necessary, and if it were, the government would not sabotage its own contract by intentionally withholding a required specification. Def.’s Reply at 21. The government asserts even plaintiff does not believe a 12” pipe is required because plaintiff argues it could have completed the project with more time using its 10” pipe. Def.’s Reply at 21–22. Regarding the first element, whether plaintiff “undertook to perform without vital knowledge of a fact that affects performance costs or duration,” there is no dispute plaintiff was unaware of the 12” minimum pipe size requirement from past solicitations because the USACE removed that requirement in 2014. Pl.’s MSJ at 61–63; Def.’s Cross-MSJ at 41–42; Giesler, 232 F.3d at 876. The government also removed the provision notifying bidders of the availability of prior dredging records, which would have presumably included the past solicitations with the minimum pipe size requirement—all five of the previous solicitations and the 2015 resolicitation contained the prior dredging record notice. See Ex. K (the 2002, 2003, 2007, 2009, and 2011 specifications all stating “records of previous dredging, sediment analyses, and detailed current conditions surveys are available for inspection”); Ex. J. at 78 (same). Plaintiff accordingly had no way to learn of this fact, even if it wanted to. Giesler, 232 F.3d at 876. Further, the government included the 12” minimum pipe size requirement in four of the five previous solicitations for this dredging contract, and then reinserted the requirement in the 2015 resolicitation after plaintiff failed to perform the contract with its 10” pipe. Pl.’s MSJ at 61–62 (citing the 2002, 2007, 2009, and 2011 solicitations for dredging the waterway); Ex. J. at 78 (the 2015 resolicitation). The CICA requires the government to only use restrictive conditions “to the extent necessary” to complete the job. 48 C.F.R. § 11.002(a)(1)(ii); 41 U.S.C. § 3301(a); 10 U.S.C. § 2305(a)(1) (requiring agencies to “solicit bids or proposals in a manner designed to achieve full and open competition for the procurement.”). Assuming the government abided by the law in the years before and after 2014, the inclusion of a minimum 12” pipe size necessarily implies this is the least restrictive means to complete the contract—the government even stated 12” is the minimum “sufficient” discharge pipe size. Ex. K at 9, 13, 16, 21 (the 2002, 2007, 2009, and 2011 solicitations all describing a 12” pipe size as minimally sufficient) Ex. A at 3, ECF No. 80-1 (deposition of USACE project manager John Pell at 14:15–25 (excerpts)) (stating the government believed in 2009 12” was the minimum sufficient pipe size). Accordingly, under this particular dredging contract, the government made the minimum discharge pipe size into “knowledge which is vital to performance of the contract.” McCormick, 18 Cl. Ct. at 265; Util. Contractors, Inc., 8 Cl. Ct. at 52; Giesler, 232 F.3d at 876. The government argues a smaller pipe size could be sufficient to complete the project, but the government’s argument misses the point. Def.’s Cross-MSJ at 41–42. For years, the government identified 12” as the minimum “sufficient” pipe size to complete the project. Ex. K at 9, 13, 16, 21 (the 2002, 2007, 2009, and 2011 solicitations all describing a 12” pipe size as - 34 - minimally sufficient). Even if a narrower pipe size may have been sufficient under the right circumstances as the government asserts, Def.’s Cross-MSJ at 42, that does not change the fact the government made pipe size vital to the contract and then failed to disclose it. Giesler, 232 F.3d at 876. Once the government sets a minimum requirement for a solicitation, it is not required to maintain that minimum requirement for every subsequent solicitation. Where, however, the government establishes a minimum requirement that it uses for several years—one it identifies multiple times as minimally “sufficient”—and then fails to inform bidders that it has removed the minimum requirement, the government impermissibly withholds vital knowledge. Giesler, 232 F.3d at 876; Panoramic Studios, Inc. v. United States, 413 F.2d 1156, 1166–67 (Ct. Cl. 1969) (“[T]he Government has an affirmative duty to reveal what it knows to bidders . . . .”); Helene Curtis Indus., Inc. v. United States, 312 F.2d 774, 778 (Ct. Cl. 1963) (citation omitted) (“Although it is not a fiduciary toward its contractors, the [g]overnment—where the balance of knowledge is so clearly on its side—can no more betray a contractor into a ruinous course of action by silence than by the written or spoken word.”); Util. Contractors, Inc., 8 Cl. Ct. at 52. Lastly, the minimum pipe size affected the performance costs and duration of the contract, as evidenced by the significant delays and costs caused by clogs in plaintiff’s 10” pipe. Pl.’s MSJ at 41–54 (citing Ex. H at 37–51 (plaintiff’s interrogatory response including photos of debris and description of the clogs and delays arising therefrom); Ex. L (daily construction reports of the delay cause by machinery clogs)); Tr. at 20:1–11 (plaintiff’s counsel stating debris would make it through the equipment, only to clog plaintiff’s discharge pipe, forcing plaintiff to cease dredging “to raise up a section of the sunken pipe and try to get it out”). Although the difference between a 12” pipe and a 10” pipe appears minor, a 10” pipe has a 31% smaller cross- sectional area than a 12” pipe. 10 Pl.’s MSJ at 65. This change affects the fluid velocity and pressure drop which, in turn, affects dredging performance. A smaller pipe would also increase the likelihood of delays due to clogs than would otherwise occur with a larger pipe. See Ex. L (daily construction reports of the delay caused by machinery clogs). Accordingly, the Court finds plaintiff “undertook to perform [the contract] without vital knowledge of a fact that affects performance costs [and] duration.” Giesler, 232 F.3d at 876. Plaintiff has successfully shown the first element of the superior knowledge doctrine for minimum pipe size. Id. Regarding the second element, whether “the government was aware [plaintiff] had no knowledge of and had no reason to obtain [the] information,” the USACE admitted it removed the pipe size requirement to increase bidding on the project, so it must have known plaintiff lacked that knowledge. Id.; Ex. A at 3 (deposition of USACE project manager John Pell at 15:3– 12 (excerpts)) (stating the government removed the minimum sufficient pipe size due to the project only receiving “one bid or no bids”). The government does not argue plaintiff had reason to obtain the pipe size information, either; instead, despite its solicitations before and after 2014 defining 12” as minimally sufficient, the government rests on its assertion a smaller pipe size was sufficient. Def.’s Cross-MSJ at 41–42. Even assuming plaintiff had reason to obtain the pipe size information, it could not because the government also removed in 2014, and reinserted in 2015, the notice to bidders that records of previous dredging are available for inspection. See 10 The cross-sectional area of a circular pipe is a function of its radius squared: 𝐴𝐴 = 𝜋𝜋𝑟𝑟 2 . Accordingly, by allowing plaintiff to proceed with a 10” diameter pipe instead of a 12” diameter pipe, the government allowed plaintiff to perform with dredging equipment comprising a 31% lower cross-sectional area, which undoubtedly affected performance. - 35 - Ex. K (the 2002, 2003, 2007, 2009, 2011, and 2014 specifications); Ex. J at 10 (the 2015 resolicitation). The Court finds the government was aware plaintiff “had no knowledge” of the 12” minimum pipe size requirement “and had no reason to obtain such information.” Giesler, 232 F.3d at 876. Plaintiff satisfies the second element of the superior knowledge doctrine for minimum pipe size. Id.; GAF Corp., 932 F.2d at 949; Hercules Inc., 24 F.3d at 196. For the third and fourth elements, whether the contract specification misled or put plaintiff on notice to inquire and whether the government failed to provide the relevant information, the government failed to indicate that pipe size would be important to completing the project. See Def.’s Cross-MSJ App. at 1–130 (the 2014 dredging contract). Without prior dredging records or any reason to doubt the sufficiency of its equipment to complete the project, plaintiff would have no reason to inquire about such a detail. See Ex. K (the 2002, 2003, 2007, 2009, and 2011 specifications, but not the 2014 specification, all stating “records of previous dredging, sediment analyses, and detailed current conditions surveys are available for inspection”); Ex. J. at 78 (the 2015 specification stating the same); Ex. J at 10, 63–64 (plaintiff has over 60 years of Pacific Northwest experience dredging ports, rivers, and waterways, averaging 200,000 cubic yards dredged annually). The government’s silence as to pipe size could mislead bidders to surmise a pipe size much smaller than 12” would be adequate, without knowing the government for years described 12” as the minimally “sufficient” size. See Helene Curtis Indus., Inc., 312 F.2d at 778 (“Although it is not a fiduciary toward its contractors, the [g]overnment—where the balance of knowledge is so clearly on its side—can no more betray a contractor into a ruinous course of action by silence than by the written or spoken word.”). The government does not argue plaintiff was on notice or that it provided the relevant information. See Def.’s Cross-MSJ at 41–43; Def.’s Reply at 21–22. Accordingly, the Court finds the contract specification did not put plaintiff on notice to inquire about pipe size and the government failed to provide the relevant information. Giesler, 232 F.3d at 876. Plaintiff satisfies the third and fourth elements of its superior knowledge doctrine claim for minimum pipe size. Id. The Court finds no dispute of material fact that the government withheld superior knowledge of a minimum sufficient pipe size. Id.; Matsushita, 475 U.S. at 587. The Court grants plaintiff’s motion for summary judgment and denies the government’s motion for summary judgment on this issue. Giesler, 232 F.3d at 876; GAF Corp., 932 F.2d at 949; Hercules Inc., 24 F.3d at 196.

² Whether the USACE Withheld Superior Knowledge of Log Traffic Plaintiff alleges the government knowingly withheld superior knowledge of log traffic because “[i]t removed the warning about large logs and trees moving with the currents and damaging contractor’s equipment.” Pl.’s MSJ at 71. Plaintiff argues it bid on the solicitation at issue “without knowledge” of this “vital information.” Id. As a result, plaintiff states “its pipes were destroyed by the logs[,] negatively affecting production and the repetitive costs associated with fixing broken pipes (labor, equipment, and replacement pipe) affect the total cost of the project.” Id. Additionally, plaintiff argues any bidder inquiry regarding log traffic did not become part of the contract because the government did not incorporate them by amendment. - 36 - Pl.’s Reply at 24–25 (citing Per Aarsleff A/S v. United States, 829 F.3d 1303, 1311 (Fed. Cir. 2016)). The government responds to plaintiff’s log traffic claims by stating, “[t]he solicitation warned bidders that they must ‘be satisfied before submitting [a] bid as to the hazards likely to arise from weather conditions,’ and further warned bidders to expect to encounter ‘sunken logs’ and ‘stumps,’—which would obviously have been ‘floating logs’ at some point in time.” Def.’s Cross-MSJ at 44 (citing Def.’s Cross-MSJ App. at 43, 123 (contract)). Plaintiff was also warned about floating log traffic in a bidder inquiry, according to the government, which described “water conditions that can change quickly due to weather and to be aware of trees coming down the river.” Id. (citing Def.’s Cross-MSJ App. at 282 (15 August 2014 bidder inquiry)). By warning of log traffic in a bidder inquiry prior to plaintiff’s bid, the government asserts the information was reasonably available so plaintiff’s superior knowledge claim must fail. Def.’s Reply at 22–23. Regarding the first element, whether plaintiff “undertook to perform without vital knowledge of a fact that affects performance costs or duration,” plaintiff asserts, and the government does not dispute, it “undertook to perform the dredging at issue without knowledge that large logs and trees move with the currents and can damage [its] equipment.” Pl.’s MSJ at 71; Giesler, 232 F.3d at 876. Plaintiff argues, undisputed, “[t]he log traffic affected performance and costs” due to the logs repetitively breaking plaintiff’s pipes. Pl.’s MSJ at 71; Giesler, 232 F.3d at 876. This issue is uncontested; accordingly, the Court finds plaintiff has satisfied the first element of its log traffic superior knowledge claim. Giesler, 232 F.3d at 876. Regarding the second, third, and fourth elements of plaintiff’s log traffic superior knowledge claim, id., plaintiff fails to satisfy these elements because plaintiff has not shown that knowledge of floating log traffic was “not reasonably available to bidders.” McCormick, 18 Cl. Ct. at 265 (quoting Util. Contractors, Inc., 8 Cl. Ct. at 52). On 15 August 2014, ten days before plaintiff submitted its bid, a bidder inquiry was entered warning of “water conditions that can change quickly due to weather and to be aware of trees coming down the river.” Def.’s Cross- MSJ App. at 282 (15 August 2014 public bidder inquiry warning of log traffic). The solicitation warned that “bidders will be held to have reviewed the questions and responses in ProjNet-BID prior to bid submission.” Def.’s Cross-MSJ App. at 133 (the 2014 solicitation). It was plaintiff’s standard practice to review such inquiries when preparing a project bid. Def.’s Cross-MSJ App. at 287, 359, 390–91 (depositions of MIC employee Michael Harrison at 31:9-20, MIC co-owner Joseph Bernert at 25:2-13, and MIC President David Bernert at 21:25-22:3, all testifying they typically review bidder inquiries). Yet plaintiff does not argue, nor does it present any evidence, that it ever reviewed the bidder inquiries prior to bidding on this particular contract. See Pl.’s Reply 24–25; Def.’s Cross-MSJ at 6 (citing multiple depositions of plaintiff’s employees testifying they typically review bidder inquiries but did not in this instance). In addition, the contract warned plaintiff of “sunken logs” and “stumps,” which were necessarily floating logs at some point. Def.’s Cross-MSJ App. at 123 (the 2014 contract stating “[t]he [c]ontractor may encounter . . . sunken logs [and] stumps”). Accordingly, plaintiff cannot show the government was aware plaintiff had no knowledge of log traffic and had no reason to obtain such information, element two, because such information was “reasonably available to bidders.” McCormick, 18 Cl. Ct. at 265 (quoting Util. Contractors, Inc., 8 Cl. Ct. at 52); Giesler, 232 F.3d - 37 - at 876. Plaintiff cannot show the supplied contract specification misled it—element three— because the contract warned plaintiff of “sunken logs” and “stumps,” and the bidder inquiries plaintiff was required to review warned of floating log traffic. See Def.’s Cross-MSJ App. at 123 (the 2014 contract); McCormick, 18 Cl. Ct. at 265; Giesler, 232 F.3d at 876. Plaintiff lastly cannot show the government failed to provide the log traffic information because it provided the relevant bidder inquiry ten days before plaintiff submitted its bid and warned plaintiff of sunken logs and stumps, element four. Giesler, 232 F.3d at 876; Delhur Indus., Inc., 95 Fed. Cl. at 457 (citing Randa/Madison Joint Venture III, 239 F.3d at 1270–72) (“A contractor has a duty to review information referred to and made available for inspection in the contract documents.”). The Court finds no dispute of material fact that the government did not withhold superior knowledge of log traffic. Giesler, 232 F.3d at 876; Matsushita, 475 U.S. at 587. The Court grants the government’s motion for summary judgment and denies plaintiff’s motion for summary judgment on this issue. GAF Corp., 932 F.2d at 949; Hercules Inc., 24 F.3d at 196.

³ Whether the USACE Withheld Superior Knowledge of Debris Like log traffic, plaintiff argues it bid on the solicitation without knowledge of the “substantial quantities of man-made debris and sunken vessels” in the boat basin. Pl.’s MSJ at 76. Plaintiff states, “[t]he debris affected performance and costs as [plaintiff] could not dredge when its dredge was clogged by debris or its dredge was damaged by sunken vessels, and the repetitive costs . . . of removing clogs and debris (labor, equipment, and replacement equipment) affect the total cost of the project.” Id. The government knew plaintiff was unaware of the man- made debris, according to plaintiff, because it removed the warnings from past solicitations of: “Debris including fish nets, steel trolling wire, and machinery may be found in the basin area requiring frequent downtime for cleanouts and disposal. . . . Sunken boats, fishnets and other miscellaneous debris may be encountered . . . .” Id.; compare Ex. K at 1–2 (2014 solicitation) with id. at 9–10 (2011 solicitation), and id. at 13 (2009 solicitation), and id. at 16 (2007 solicitation), and id. at 19 (2003 solicitation), and id. at 21–22 (2002 solicitation). Plaintiff asserts a pre-bid site visit would not have revealed the debris at issue. Pl.’s Reply at 25; see Ex. J at 73 (the resolicitation stating, “[p]ortions of the marina boat basin have not been dredged since 1982.”). Plaintiff therefore claims the government withheld superior knowledge. Pl.’s MSJ at 76. The government responds by stating the solicitation warned about “miscellaneous debris,” just as the pre-2014 solicitations characterized the debris of which plaintiff complains. Def.’s Cross-MSJ at 44–45; but see Tr. at 202:5–8 (government counsel stating, “in hindsight, would it have been even clearer to keep [the warning] language in [in 2014]? Sure. Did the government put that language back in later? Sure.”). The government also asserts the existence of debris was reasonably available if only plaintiff conducted a pre-bid site visit. Def.’s Cross- MSJ at 45 (citing Def.’s Cross-MSJ App. at 526–27 (email internal to plaintiff describing steel and lead line in the dredging area an employee witnessed on a 30 September 2014 visit)). For the first element of plaintiff’s debris superior knowledge claim—whether plaintiff “undertook to perform without vital knowledge of a fact that affects performance costs or duration”—plaintiff alleges it lacked any “knowledge of the substantial quantities of man-made - 38 - debris and sunken vessels it encountered in the [b]oat [b]asin.” Pl.’s MSJ at 76; Giesler, 232 F.3d at 876. The government does not dispute plaintiff’s lack of knowledge as to debris in the boat basin. See Def.’s Cross-MSJ at 44–45. No evidence in the record indicates plaintiff had knowledge of the over thirty years of man-made debris or sunken vessels accumulated in the boat basin. See Ex. J at 73 (the 2015 resolicitation stating, “[p]ortions of the marina boat basin have not been dredged since 1982”). The effect debris had on plaintiff’s costs and performance is also undisputed. See Pl.’s MSJ at 76; Def.’s Cross-MSJ at 44–45; Ex. H at 37–51 (plaintiff’s interrogatory response including photos of debris and description of the clogs and delays arising therefrom); Ex. L (daily construction reports of the delay cause by clogs)); Tr. at 20:1–11 (plaintiff’s counsel stating the debris would make it through the equipment, only to create a clog in plaintiff’s discharge pipe, forcing plaintiff to cease dredging “to raise up a section of the sunken pipe and try to get it out”). Accordingly, the Court finds plaintiff “undertook to perform without vital knowledge of a fact that affects performance costs or duration.” Giesler, 232 F.3d at 876. Regarding the second element—whether “the government was aware [plaintiff] had no knowledge of and had no reason to obtain the information,” id.—in the five preceding specifications for this project, the government warned: “Debris including fish nets, steel trolling wire, and machinery may be found in the basin area requiring frequent downtime for cleanouts and disposal. . . . Sunken boats, fishnets and other miscellaneous debris may be encountered . . . .” Ex. K at 9–10, 13, 16, 19, 21–22 (comparison of solicitations from 2014, 2009, 2007. 2003, and 2002). In 2014, the government instead stated bidders “may encounter accumulations of forest trash, sunken logs, stumps, and miscellaneous debris. . . . Except as indicated, the [g]overnment has no knowledge of cables, pipes, or other artificial obstructions or of any wrecks, wreckage, or other material that would necessitate . . . additional equipment for economical removal.” Ex. K at 1–2 (2014 solicitation). The government posits its “miscellaneous debris” warning justifies its ignorance as to plaintiff’s lack of knowledge of the man-made debris and vessels—it does not. Def.’s Cross-MSJ at 44–45; Giesler, 232 F.3d at 876. By warning of miscellaneous debris, 11 such as forest trash, logs, and stumps, while simultaneously denying any knowledge of artificial obstructions or wrecks, the government effectively guaranteed any contractor would have no advanced knowledge of the artificial debris it would encounter. Fehlhaber Corp., 151 F. Supp. at 825 (“Plaintiff had a right to rely on the [g]overnment’s specifications and drawings and the [g]overnment is bound by any assertions made therein . . . .”). From a bidder’s perspective, if the contracting agency preemptively stated it had no knowledge of such things, then most bidders would exercise their “right to rely on the 11 “Ejusdem generis is a tool for determining ‘the correct meaning of words when there is uncertainty. Ordinarily, it limits general terms which follow specific ones to matters similar to those specified.’” Bay Cnty., Fla., 796 F.3d at 1376 (quoting Gooch, 297 U.S. at 128). Accordingly, understanding “miscellaneous debris” in the context of the 2014 specification, it must be limited to natural items arising from a forest environment. Ex. K at 1–2 (2014 solicitation); Bay Cnty., Fla., 796 F.3d at 1376. The government argues this interpretation is “completely illogical” because “common sense” would dictate the presence of some man-made debris. Def.’s Reply at 20. This interpretation follows naturally, however, from the “context” of the government’s specification. Enron Fed. Sols., 80 Fed. Cl. at 393. The very next paragraph in the specification denies having any knowledge of artificial obstructions or wrecks, so to interpret the government’s warning of “miscellaneous debris” in the previous paragraph as including artificial obstructions or wrecks is what would be “completely illogical.” Ex. K at 1–2 (2014 solicitation); Def.’s Reply at 20. The government cannot claim it warned plaintiff of artificial debris in one breath and deny any knowledge of artificial debris in the next. - 39 - [g]overnment’s specifications,” as it would be highly unlikely any investigation or inquiry on the part of the bidder would reveal any more information. Id. By making such patently false representations, the government must have been fully aware plaintiff was without knowledge of the over thirty years of man-made debris and sunken vessels that awaited plaintiff in the boat basin. Giesler, 232 F.3d at 876. Plaintiff could not possibly possess knowledge which the on-site contracting agency allegedly lacked. Morrison-Knudsen Co. v. United States, 345 F.2d 535, 539 (Ct. Cl. 1965) (“It was not incumbent upon the plaintiff, prior to submitting its bid and entering into the contract, to conduct its own investigation in order to ascertain the truth or falsity of the defendant’s positive assertions . . . .”). The government was quite aware of artificial obstructions and wrecks when it drafted the 2002, 2003, 2007, 2009, and 2011 specifications, so it was baseless for the government to deny having any such knowledge in the 2014 specification. See Ex. K (comparison of solicitations from 2014, 2011, 2009, 2007, 2003, and 2002); Ex. A at 4 (deposition of USACE project manager John Pell at 21:8–18 (excerpts)) (stating the warnings were removed to increase bidding, not because the artificial obstructions and wrecks had been cleaned up); Ex. J at 73 (the 2015 resolicitation stating, “[p]ortions of the marina boat basin have not been dredged since 1982,” which the government presumably knew in 2014). Regarding whether plaintiff had reason to obtain the debris information, plaintiff’s failure to “examine the site of work and verify the character or materials,” as the contract expressly advised, is not fatal to plaintiff’s claim. Def.’s Cross-MSJ App. at 123 (the 2014 contract). The man-made debris plaintiff encountered were beneath the water and invisible prior to bidding on the contract. Pl.’s Reply at 20 (citing Second Bowser Decl. Ex. X at 3, ECF No. 88-3 (deposition of contracting officer Bonilie Lackey at 80:17–19 (excerpts) (“That’s why we don’t have site visits for dredging contracts, because there isn’t anything to see above water.”). The USACE contracting officer acknowledged a site visit would not reveal what is beneath the water. Id. Accordingly, the government was also aware plaintiff “had no reason to obtain the information,” because a site visit would not have led plaintiff to discover the significant quantity of man-made debris it encountered dredging the boat basin. 12 Giesler, 232 F.3d at 876. Further, the government argues “some amount” of artificial debris should have been expected because “context defines a contract and the issues deriving thereof,” Enron Fed. Sols., 80 Fed. Cl. at 393, and language “must be given that meaning that would be derived from the contract by a reasonabl[y] intelligent person acquainted with the contemporaneous 12 The government asserts the debris was reasonably available to plaintiff because a pre-bid site visit would have revealed the man-made debris. Def.’s Cross-MSJ at 45. The government argues the information was reasonably available because plaintiff, on a post-bid site visit, observed chunks of steel being used as anchors, observed fishermen discarding lead line into the water, and learned vessels had previously sunken in the marina. Id. Even if plaintiff learned of these things prior to bidding, however, none of them would have informed plaintiff of the over thirty years of man-made debris accumulated from the boat basin’s use as a “garbage dump.” Ex. A at 18 (deposition of USACE project manager John Pell at 135:9–22 (excerpts)) (acknowledging the USACE’s difficulty with getting Tribe members to stop dumping garbage in the marina); Ex. J at 73 (the resolicitation stating, “[p]ortions of the marina boat basin have not been dredged since 1982.”); McCormick, 18 Cl. Ct. at 265. Additionally, hearing of a few sunken vessels in the channel through a conversation with a local dock manager does not make knowledge of sunken vessels “reasonably available.” Id. The government cannot turn contractors on site visits into detectives on crime scenes for the purpose of uncovering government-withheld vital information. Id.; Morrison-Knudsen Co., 345 F.2d at 539 (“It was not incumbent upon the plaintiff, prior to submitting its bid and entering into the contract, to conduct its own investigation in order to ascertain the truth or falsity of the defendant’s positive assertions . . . .”). - 40 - circumstances.” Armour of Am., 96 Fed. Cl. at 737 (citation omitted); Def.’s Reply at 20. Even accepting the government’s argument as true—plaintiff should have expected some artificial debris—no contractor could have discovered the boat basin contained over thirty years of man- made debris accumulated from its use as a “garbage dump.” Giesler, 232 F.3d at 876 (“The superior knowledge doctrine imposes upon a contracting agency an implied duty to disclose to a contractor otherwise unavailable information regarding some novel matter affecting the contract that is vital to its performance.”); Ex. J at 73 (the resolicitation stating, “[p]ortions of the marina boat basin have not been dredged since 1982.”); Bowser Decl. Ex. A at 18, ECF No. 80-1 (deposition of USACE project manager John Pell at 135:9–22 (excerpts)) (acknowledging the USACE’s difficulty with getting Tribe members to stop dumping garbage in the marina). The Court finds “the government was aware [plaintiff] had no knowledge of and had no reason to obtain the information” pertaining to artificial debris. Giesler, 232 F.3d at 876. Plaintiff successfully establishes the second element of its debris superior knowledge claim. Id.; see also McCormick, 18 Cl. Ct. at 265. For the third element—whether the contract specification misled plaintiff or did not put it on notice to inquire, Giesler, 232 F.3d at 876—the 2014 specification, as discussed under element two above, gave plaintiff no advanced knowledge of the artificial debris it could expect to encounter. Ex. K at 1–2 (2014 solicitation). The specification preemptively stated the government had no knowledge of artificial obstructions or wreckages, giving plaintiff no reason to inquire about such things. Fehlhaber Corp., 151 F. Supp. at 825 (“Plaintiff had a right to rely on the [g]overnment’s specifications and drawings and the [g]overnment is bound by any assertions made therein . . . .”). By making such representations, the government misled plaintiff regarding the government’s knowledge of the man-made debris and wreckages present in the boat basin. Giesler, 232 F.3d at 876; Ex. J at 73 (the resolicitation stating, “[p]ortions of the marina boat basin have not been dredged since 1982”); Ex. A at 18 (deposition of USACE project manager John Pell at 135:9–22 (excerpts)) (acknowledging the USACE’s difficulty with getting Tribe members to stop dumping garbage in the marina); Ex. K at 9–10, 13, 16, 19, 21–22 (the government warning bidders about artificial debris and sunken vessels in 2002, 2003, 2007, 2009, and 2011). Moreover, although plaintiff failed to perform a pre-bid site visit, the USACE contracting officer acknowledged a site visit would not reveal what is beneath the water. Ex. X at 164 (deposition of contracting officer Bonilie Lackey at 80:14–19 (excerpts)). Accordingly, even if plaintiff performed a site visit, the significant quantity of man-made debris would have nevertheless been “unknown and . . . not reasonably available” to plaintiff. 13 McCormick, 18 Cl. Ct. at 265 (quoting Util. Contractors, Inc., 8 Cl. Ct. at 52). Plaintiff successfully establishes the third element of its debris superior knowledge claim. Giesler, 232 F.3d at 876. Regarding the fourth element, whether “the government failed to provide the relevant information,” id., the government clearly outlined the pertinent debris and wreckage information in the 2015 resolicitation. See Ex. J at 78–79 (“Contractor may encounter accumulations of forest trash, sunken logs, stumps, man-made wood products, wire and synthetic rope, metal debris, fishing nets, tires, and other miscellaneous debris. . . . There are two reported sunken vessels, . . . and likely [other] accumulations of debris within the boat basin . . . .”). Unfortunately, the government provided no such warning for plaintiff in 2014; the government 13 See supra note 12. - 41 - instead stated bidders “may encounter accumulations of forest trash, sunken logs, stumps, and miscellaneous debris. . . . Except as indicated, the [g]overnment has no knowledge of cables, pipes, or other artificial obstructions or of any wrecks, wreckage, or other material that would necessitate . . . additional equipment for economical removal.” Ex. K at 1–2 (2014 solicitation). Unlike the resolicitation or any previous solicitation, the 2014 contract fails to mention thirty- years of artificial debris and sunken vessels. See, e.g., Ex. K at 9–10, 13, 16, 19, 21–22 (the government warning bidders about artificial debris and sunken vessels in 2002, 2003, 2007, 2009, and 2011). Accordingly, the Court finds “the government failed to provide the relevant information,” so plaintiff successfully establishes the fourth element of its debris superior knowledge claim. Giesler, 232 F.3d at 876. The Court finds no dispute of material fact the government withheld superior knowledge of man-made debris and sunken vessels. Giesler, 232 F.3d at 876; Matsushita, 475 U.S. at 587. The Court grants plaintiff’s motion for summary judgment and denies the government’s motion for summary judgment on this issue. Giesler, 232 F.3d at 876; GAF Corp., 932 F.2d at 949; Hercules Inc., 24 F.3d at 196.

⁴ Whether the USACE Withheld Superior Knowledge of Clay Plaintiff’s last superior knowledge claim is based on the government withholding knowledge of clay content in the material to be dredged in the boat basin. Pl.’s MSJ at 80. Regarding plaintiff’s clay differing site condition claim, supra Section VI.C.1., the Court finds the government disclosed the presence of clay by reference to a suitability determination which contained sediment sampling results. Def.’s Cross-MSJ App. at 362 (deposition of MIC co- owner Joseph Bernert at 38:2–18 (excerpts)) (indicating plaintiff did not review the suitability determination containing the sediment contents); Comtrol, 294 F.3d at 1364 (“Reasonable reliance cannot exist where the contractor bid without having reviewed the contract documents on which it seeks to rely.”); Delhur Indus., Inc., 95 Fed. Cl. at 457 (citing Randa/Madison Joint Venture III, 239 F.3d at 1270–72) (“A contractor has a duty to review information referred to and made available for inspection in the contract documents.”). The elements of a differing site condition claim differ in kind from a superior knowledge claim; therefore, the Court still assesses plaintiff’s claim the government withheld superior knowledge of clay. Plaintiff argues the government performed its own testing on the material to be dredged and stated in the solicitation it “is composed of cobbles to fine silts.” Pl.’s MSJ at 80. Plaintiff asserts the government’s own testing showed approximately 7% clay in the boat basin, however, and the government failed to disclose that knowledge. Id. Plaintiff concludes the presence of clay is a material factor effecting the cost and performance of the contract, so the government therefore failed to disclose superior knowledge. Id. at 80–81. The government responds by arguing the solicitation’s description of “cobbles to fine silts” is not misleading and any knowledge relating to boat basin clay content was “reasonably available to bidders.” Def.’s Cross-MSJ at 45. According to the government, “clay is entirely consistent with the ‘cobbles to fine silts’ that the contract identifies, . . . [and] even if it were not, the contract does not ‘affirmatively represent that only’ cobbles to fine silts would be encountered, to the exclusion of anything else.” Def.’s Reply at 16 (citations omitted). The - 42 - government also offers “the document explicitly identified in the solicitation where [the clay content] information existed” as evidence it did not withhold superior knowledge. Id. at 17. For the first element of plaintiff’s clay superior knowledge claim—whether plaintiff “undertook to perform without vital knowledge of a fact that affects performance costs or duration”—plaintiff alleges it had no knowledge of the clay content and the government does not dispute this. Giesler, 232 F.3d at 876; see Pl.’s MSJ at 80; Def.’s Cross-MSJ at 44–45. No evidence in the record indicates plaintiff had knowledge of the clay content. Additionally, plaintiff alleges the clay affected its costs and performance because the clay slowed its dredging rate. Pl.’s MSJ at 80 (citing Ex. H at 61 (plaintiff’s interrogatory response calculating 72.6% decrease in efficiency)). The government included clay content as a “material factor[]” in its cost estimate for the project, so it recognized clay could affect plaintiff’s costs and performance. Ex. A at 9 (deposition of USACE project manager John Pell at 59:18–61:3 (excerpts)). Accordingly, the Court finds plaintiff has satisfied the first element of its clay superior knowledge claim. Giesler, 232 F.3d at 876. Regarding the second, third, and fourth elements—“(2) the government was aware [plaintiff] had no knowledge of and had no reason to obtain such information; (3) any contract specification supplied misled [plaintiff] or did not put it on notice to inquire; and (4) the government failed to provide the relevant information”—the solicitation stated the material to be dredged “is composed of cobbles to fine silts.” Def.’s Cross-MSJ App. at 273 (2014 solicitation); Giesler, 232 F.3d at 876. The government asserts fine silts includes clay under the ASTM version of the Unified Soil Classification System. Def.’s Cross-MSJ at 34; see Def.’s Cross-MSJ App. at 522–23 (USACE contracting officer providing plaintiff with “the Soil Classification Table from ASTM D2487” on 8 October 2014, at plaintiff’s request). Additionally, the solicitation included a water quality certification with which plaintiff was required to comply. Def.’s Cross-MSJ App. at 258 (the 2014 solicitation stating “The Contractor shall comply with the terms of the Water Quality Certification . . . .”), 263 (the water quality certification contained within the 2014 solicitation). The certification disclosed to all bidders “[s]ediment sampling in the navigation channel and boat basin occurred . . . on October 5, 2010; with results documented in a Suitability Determination (SD) dated January 6, 2011.” Id. at 263. The publicly available suitability determination stated the boat basin sediment was comprised of “less than 1% gravel, 22% sand, 71% silt, and 7% clay.” Pl.’s MSJ at 32 (citing Bowser Decl. Ex. 12 at 2, ECF No. 80-10 (the referenced suitability determination)). Accordingly, the government was not aware plaintiff lacked knowledge of the clay content because, from the government’s perspective, it disclosed the presence of clay within the specification and by reference to a publicly available document. Giesler, 232 F.3d at 876. If plaintiff perhaps missed the suitability determination during its “half hour” review of the 150- page solicitation and “was surprised” about the “limited information about sediments,” then, it should have been on notice to inquire about such information. Def.’s Cross-MSJ App. at 362 (deposition of MIC co-owner Joseph Bernert at 38:2–18 (excerpts)) (indicating plaintiff did not review the suitability determination containing the sediment contents); 364–65 (deposition of MIC co-owner Joseph Bernert at 40:24–41:3 (excerpts)) (“I was surprised there was no vibracores. There was very limited information about the sediments.”). Further, the government did not fail to disclose the presence of clay because it provided that information by reference to a - 43 - publicly available document. McCormick, 18 Cl. Ct. at 265 (quoting Util. Contractors, Inc., 8 Cl. Ct. at 52) (holding superior knowledge must be “unknown” and “not reasonably available to bidders”). For these reasons, the government was not aware plaintiff had no knowledge of the clay content—the contract specification at least put plaintiff on notice to inquire, and the government did not fail to provide the relevant information because it was, at least, publicly available. Giesler, 232 F.3d at 876. Plaintiff fails to establish the second, third, and fourth elements of its clay superior knowledge claim. Id.; GAF Corp., 932 F.2d at 949; Hercules Inc., 24 F.3d at 196. The Court finds no dispute of material fact the government did not withhold superior knowledge of clay content. Giesler, 232 F.3d at 876; Matsushita, 475 U.S. at 587. The Court grants the government’s motion for summary judgment and denies plaintiff’s motion for summary judgment on this issue. Giesler, 232 F.3d at 876; GAF Corp., 932 F.2d at 949; Hercules Inc., 24 F.3d at 196. E. Whether Plaintiff Would Have Completed the Project Within the Time Sought The government argues even if plaintiff received the entire 117.5 days of claimed excusable delay, “the termination for default must still be sustained as a matter of law,” because plaintiff nevertheless would have failed to complete the contract. Def.’s Cross-MSJ at 46; Def.’s Reply at 4 (quoting Morganti Nat., Inc., 49 Fed. Cl. at 130) (“[A] contractor ‘has the burden of establishing by a preponderance of the evidence not only the existence of an excusable cause of delay but also the extent to which completion of the contract work as a whole was delayed’ by those causes, and not by delays of its own making.”). The government asserts it would have taken plaintiff “another 780 days of non-stop dredging at its total production rate on this project for [plaintiff] to complete the work.” Def.’s Cross-MSJ at 46 (measuring plaintiff’s daily dredge rate with the 13,011 cubic yards dredged of the required 79,000 over 156 days following the notice to proceed). Lastly, the government disagrees with plaintiff’s assertion it would have dredged at 600 cubic yards per day for the entire excusable delay period when plaintiff was only able to sustain that rate for two days and fails to account for any equipment problems, personnel issues, or additional clay delay. Def.’s Reply at 5–7. Plaintiff initially disputed whether it must demonstrate “it would have completed the contract but for the excusable causes that it identifies.” Pl.’s Reply at 8. At oral argument, however, plaintiff conceded it must show it would have completed the contract but for the excusable delay. Tr. at 156:1–17 (discussing the court’s holding in Morganti). Plaintiff nevertheless cites to testimony from USACE project manager John Pell to support the proposition “that when MIC was permitted to dredge without interruption by storms, MIC was able to dredge 600 [cubic yards] per day.” Pl.’s Reply at 10 (citing Second Bowser Decl. Ex. V at 164, ECF No. 88-1 (deposition of USACE project manager John Pell)). Plaintiff argues the project manager “also confirmed that the 600 cubic yards per day was a sufficient rate, barring the substantial weather delay, to complete the project on time.” Id. (citing Ex. V at 165 (deposition of USACE project manager John Pell)). Therefore, plaintiff argues, even the USACE thought plaintiff’s unimpeded rate was sufficient to complete the dredging within the claimed excusable delay time. Id. - 44 - If asserting its default was excusable, plaintiff must demonstrate it would have completed the contract but for the excusable causes of its failure to timely perform. Sauer Inc. v. Danzig, 224 F.3d 1340, 1345 (Fed. Cir. 2000) (“[T]he unforeseeable cause must delay the overall contract completion; i.e., it must affect the critical path of performance.”); Morganti Nat., Inc., 49 Fed. Cl. at 134 (affirming a termination for default after concluding a contractor would not have completed the contract but for the excusable delay). Any excusable delays must alter the critical path of the project, “usually result[ing] in a corresponding delay to the completion of the project.” Wilner v. United States, 24 F.3d 1397, 1399 n.5 (Fed. Cir. 1994). If the Court finds plaintiff’s default was excusable, “the rights and obligations of the parties will be the same as if the termination had been issued for the convenience of the Government.” FAR 52.249-10(c) (incorporated by reference into the parties’ contract, Def.’s Cross-MSJ App. at 15). The parties agree the determination of whether plaintiff would have completed the contract but for the excusable delays begins with the end of the fish window—1 September 2015. Tr. at 156:6–17 (the parties confirming excusable delay days are added to the post-fish window, so plaintiff’s productivity is calculated as if it is performing September and October). The parties disagree, however, on the appropriate method for calculating plaintiff’s dredge rate if granted any excusable delay, and present multiple conflicting methods for doing so. For example, in its briefing, plaintiff argues it could have dredged at 600 cubic yards per day and that would have been sufficient to complete the project if granted the claimed 117.5 days of excusable delay. Pl.’s Reply at 10. At oral argument, plaintiff instead asserted it could dredge at 1,600 cubic yards per day. Tr. at 119:3–13. The government disputes each of plaintiff’s dredge rate calculations because it asserts neither of them account for “any of the equipment problems, personnel issues, and other delay factors.” Def.’s Reply at 6; Tr. at 205:16–206:22 (government counsel at oral argument citing equipment problems, personnel issues, and holidays as unaccounted for in plaintiff’s calculations). In its motion, the government argues plaintiff would have needed another 780 days to complete the project. Def.’s Cross-MSJ at 46 (measuring plaintiff’s daily dredge rate with the 13,011 cubic yards dredged of the required 79,000 over 156 days following the notice to proceed). Then in its reply brief, the government, under favorable assumptions, says plaintiff would have instead been just 7,000 cubic yards short of completion if granted all 117.5 days of excusable delay. Def.’s Reply at 6–7. Without considering the number of days, if any, of excusable delay plaintiff is entitled to, the Court finds there are disputes of material fact as to the dredge rate plaintiff could have sustained if granted any excusable delay. Matsushita, 475 U.S. at 587; Tr. at 207:13–20 (plaintiff’s counsel stating the total days of excusable delay, if any, is to be determined post- summary judgment). Accordingly, the Court declines to enter summary judgment on this issue because it cannot determine whether plaintiff would have completed the contract but for the excusable causes of delay without knowing the rate at which plaintiff would have otherwise performed. Sauer Inc., 224 F.3d at 1345; Morganti Nat., Inc., 49 Fed. Cl. at 134. The parties must present the Court with sufficient evidence to demonstrate whether plaintiff would have completed the project but for the excusable delay in consideration of all material factors, including at least: the time of year, the weather, the equipment used, the material dredged, and debris. See Tr. at 156:6–17 (the parties confirming excusable delay days are added to the post- fish window, so plaintiff’s productivity is calculated as if it is performing at the beginning of - 45 - September 2015). Plaintiff must also factor in which sources of excusable delay remain to support its requested termination for default conversion and whether plaintiff would have completed the contract but for this lesser amount of excusable delay. Sauer Inc., 224 F.3d at 1345; Morganti Nat., Inc., 49 Fed. Cl. at 134; Tr. 131:17–132:14 (both parties agreeing failure to disclose superior knowledge requires an excusable delay analysis). The Court will defer ruling on the issue of whether plaintiff would have completed the contract but for any excusable delay until after trial. F. Summary To summarize the Court’s findings regarding whether plaintiff is entitled to have its termination for default converted to a termination for convenience, plaintiff motioned for summary judgment on various grounds of excusable delay and breach of contract, and the government submitted several motions for summary judgment of its own in defense. See supra Section VI. First, the government defended against plaintiff’s excusable delay and differing site condition claims by arguing plaintiff failed to comply with the contract’s notice provisions, FAR 52.249-10, 52.236-2. Supra Section VI.A. The Court finds plaintiff complied with the excusable delay and differing site condition notice provisions only with respect to debris located in the boat basin. Supra Section VI.A.1.b. The Court finds plaintiff failed to comply with the notice provisions for its excusable delay and differing site condition claims arising from unusually severe weather, debris outside the boat basin, clay, and floating logs. Supra Section VI.A.1. In response to the government’s motion, plaintiff asserted the government waived the notice provisions; the Court finds the government waived notice as a defense to every claim except plaintiff’s clay differing site condition claim. Supra Section VI.A.2. In addition, plaintiff asserted the government had actual knowledge of plaintiff’s claims, but the Court finds there are disputes of material fact and declines to enter summary judgment on actual or constructive notice. Supra Section VI.A.3. Accordingly, the government’s notice defense fails as to all but plaintiff’s clay differing site condition claim, and the Court will not decide if the government had actual or constructive notice of that claim because it is moot. Supra Section VI.A. The Court next addresses plaintiff’s several claims on the merits. See supra Sections VI.B.–E. First, the Court finds plaintiff failed to support its unusually severe weather claim and denies plaintiff any excusable delay as a result of the weather. Supra Section VI.B. Then, the Court addresses plaintiff’s two differing site condition claims for debris and clay, and finds plaintiff failed to establish its clay differing site condition claim, but disputes of material fact prevent the Court from entering summary judgment on plaintiff’s debris differing site condition claim. Supra Section VI.C. Next, plaintiff motioned for summary judgment on four claims that the government withheld superior knowledge of: a minimum sufficient pipe size, log traffic, debris, and clay. Supra Section VI.D. The Court finds plaintiff successfully established the government breached the contract under the superior knowledge doctrine for two of its four claims: minimum sufficient pipe size and debris. Supra Sections VI.D.1., VI.D.3. Lastly the government argued plaintiff would not have completed the contract but for its claimed excusable delay; the Court finds there are disputes of material fact and declines to enter summary judgment on this issue. Supra Section VI.E. - 46 - In sum, plaintiff successfully established only its superior knowledge claims for minimum sufficient pipe size and debris, and disputes of material fact prevent the Court from entering summary judgment on plaintiff’s debris differing site condition claim. The government waived its notice defense to all but plaintiff’s clay differing site condition claim. The Court declines to enter summary judgment on the government’s actual or constructive notice of plaintiff’s clay differing site conditions claim, but that issue is now moot because the claim fails on the merits. At least four issues remain for trial to determine whether plaintiff is entitled to have its termination for default converted to a termination for convenience: (1) the remedy for the government’s failure to disclose superior knowledge of a minimum sufficient pipe size, see supra Section VI.D.1.; (2) the remedy for the government’s failure to disclose superior knowledge of debris, see supra Section VI.D.3.; (3) whether the debris plaintiff encountered constitutes a differing site condition, and if so, the remedy, see supra Section VI.C.2.; and (4) whether plaintiff would have completed the contract but for any excusable delay, see supra Section VI.E. VII. Whether Plaintiff is Entitled to Compensable Delay The government next argues it is entitled to summary judgment on “Count I of [plaintiff]’s Second Amended Complaint seeking ‘$638,260.81 in additional costs,’ because any excusable delays [plaintiff] might have suffered were concurrent with delays attributable solely to [plaintiff].” Def.’s Cross-MSJ at 26 (quoting Second Am. Compl. at 8). The government states: The parties agree that “the fact that the contractor may also have caused concurrent delay is not fatal to the contractor’s claim for additional time due to excusable delay,” but that “if a period of delay can be attributed simultaneously to the actions of both the [g]overnment and the contractor, there are said to be concurrent delays, and the result is an excusable but not a compensable delay.” Id. at 25 (quoting Pl.’s MSJ at 6). The government points to delays caused by plaintiff’s submittal process, defective equipment, and project management as evidence plaintiff’s delays were concurrent, not compensable. Id. at 25–26. Plaintiff argues any submittal delay occurring before work commenced would be sequential and thus apportionable. Pl.’s Reply at 29. Plaintiff asserts the causes of compensable delay, such as the weather, clay, and debris, occurred after any delay caused by plaintiff. Id. at 30. Plaintiff claims the government fails to establish any specific dates or times for a concurrent delay analysis, and “[o]ne cannot find concurrency when they do not have a time period to reference.” Id. Therefore, plaintiff argues the government is not entitled to summary judgment on plaintiff’s claim to compensable delay. Id. “[N]ot all delays are excusable, and furthermore, not all excusable delays are compensable.” Weaver-Bailey Contractors, Inc. v. United States, 19 Cl. Ct. 474, 476 (1990). Compensable delay is delay where “the government [is] the sole proximate cause of the contractor’s additional loss, and the contractor would not have been delayed for any other reason during that period.” Triax-Pac. v. Stone, 958 F.2d 351, 354 (Fed. Cir. 1992) (internal quotations - 47 - omitted). Sequential delay is defined as delay “where one party and then the other cause different delays seriatim or intermittently.” R.P. Wallace, Inc., 63 Fed. Cl. at 410. “If a period of delay can be attributed simultaneously to the actions of both the [g]overnment and the contractor, there are said to be concurrent delays, and the result is an excusable but not a compensable delay.” Morganti Nat., Inc., 49 Fed. Cl. at 132 (quoting Weaver- Bailey Contractors, Inc., 19 Cl. Ct. at 476); William F. Klingensmith, Inc. v. United States, 731 F.2d 805, 809 (Fed. Cir. 1984). Plaintiff “has the burden of establishing by a preponderance of the evidence” the existence of any excusable delay, compensable or otherwise. Morganti Nat., Inc., 49 Fed. Cl. at 132 (citations omitted); see Sauer Inc., 224 F.3d at 1347; Def.’s Cross-MSJ App. at 15 (the parties’ contract incorporating by reference FAR 52.249-10 which defines excusable delay as, “delay in completing the work aris[ing] from unforeseeable causes beyond the control and without the fault or negligence of the Contractor”). The Court cannot yet decide what excusable delay, if any, plaintiff is entitled to. See supra Section VI.; Tr. at 207:13–20 (plaintiff’s counsel stating the total days of excusable delay, if any, is to be determined post-summary judgment). A compensable delay analysis requires the Court to look at each specific instance of excusable delay plaintiff is entitled to and determine if the government is “the sole proximate cause of [plaintiff]’s additional loss, and the contractor would not have been delayed for any other reason during that period.” Triax-Pac., 958 F.2d at 354. Consequently, the Court cannot decide whether plaintiff is entitled to any compensable delay until it decides if plaintiff is entitled to excusable delay. Id. Further, the government’s blanket assertion that any excusable delay caused by weather, logs, clay, or debris was concurrent with plaintiff’s delayed start, defective equipment, project planning, and personnel management is unavailing because it does not assess each specific instance of excusable delay to which plaintiff is entitled. Id.; see Def.’s Cross-MSJ at 26; Catel, Inc., 2012 WL 3104366, at *33 (quoting CJP Contractors, Inc. v. United States, 45 Fed. Cl. 343, 372 (1999)) (“[I]n the event of concurrent delays, the contractor ‘can attempt to prove the portion of the delay attributable to the government[] that was separate and apart from the contractor’s delay.’”). The government correctly states, and plaintiff acknowledges, plaintiff “has the burden of establishing by a preponderance of the evidence” the existence of any excusable delay, compensable or otherwise. Morganti Nat., Inc., 49 Fed. Cl. at 132; Tr. at 210:6–10 (plaintiff’s counsel agreeing “the burden is on plaintiff to demonstrate that any compensable delays are, in fact, sequential and not concurrent with plaintiff's own delays”). Plaintiff did not motion for summary judgment on its compensable delay claims, so it has not yet attempted to establish which of its delays are compensable. Celotex, 477 U.S. at 322 (A party seeking summary judgment bears the burden of establishing the “absence of any genuine issues of material fact”). Therefore, the Court denies the government’s motion for summary judgment on this issue and will defer deciding whether plaintiff is entitled to any compensable delay until after trial. Id. VIII. Whether the Government is Entitled to Recover Costs and Damages Both plaintiff and the government move for summary judgment on the government’s counterclaims for reprocurement costs, administrative costs, and liquidated damages. Pl.’s MSJ at 1–2; Def.’s Cross-MSJ at 46–50; Tr. at 129:1–15, 212:7–20 (government counsel confirming its counterclaims fail if plaintiff has a valid defense to default). - 48 - A. Whether the Government May Recover Reprocurement Costs Plaintiff argues the government is barred from seeking reprocurement costs because it “made substantial and material changes in the physical nature of the work to be performed from the original contract to the re-let contract.” Pl.’s MSJ at 24. In the resolicitation contract, plaintiff asserts the government moved the disposal locations, changed the equipment that could be used, lowered the quantity of the material to be removed, and added notice of debris, weather logs, clay, and sunken vessels. Id.; Pl.’s Reply at 11–13 (describing the thirty changes to the resolicitation). Plaintiff also claims the government paid a portion of its reprocurement costs to the reprocurement contractor in bad faith. Pl.’s Reply at 13 (“USACE paid the reprocurement contractor $262,500 when they were only able to verify that $189,465 dollars was due to the [c]ontractor.” (citing Ex. W at 18 (internal USACE emails regarding the reprocurement contractor’s equitable adjustment claim)). The government points out that plaintiff does not dispute that it actually incurred its claimed costs and denies that it made “substantial and material changes” to its reprocurement contract. Def.’s Cross-MSJ at 46–47. The government states, “[t]he purpose of both the reprocurement and [plaintiff’s] contract was to complete the same dredging work at the same project site, with no substantial or material changes ‘to the work to be performed.’” Id. at 47 (quoting Pl.’s MSJ at 20). The government argues the changes plaintiff identifies are “minor technical changes.” Id. These changes did not impact the dredging work and had no impact on the contract price, according to the government. Id. (citing Seaboard Lumber Co. v. United States, 308 F.3d 1283, 1301 (Fed. Cir. 2002)); Def.’s Reply at 23 (“[Plaintiff] ignores that the reprocurement contract cost nearly $7,000 less than the contract awarded to MIC.”). The government lastly states no such bad faith payment occurred—“USACE and the contractor ultimately reached a compromise for a net increase of only $2,392.50 over the original contract price.” Id. at 24. The parties’ contract in this case incorporates by reference FAR 52.249-10(a), which states a “[c]ontractor . . . shall be liable for any damage to the [g]overnment resulting from the [c]ontractor’s . . . failure to complete the work within the specified time . . . . This liability includes any increased costs incurred by the [g]overnment in completing the work.” See Def.’s Cross-MSJ App. at 15 (the 2014 contract). Under a claim for excess reprocurement costs, “[t]he measure of damages is the reasonable reprocurement price less the original contract price.” Cascade Pac. Int’l v. United States, 773 F.2d 287, 293 (Fed. Cir. 1985); see Armour of Am., 96 Fed. Cl. at 761–62 (citation omitted) (“In calculating excess reprocurement costs, ‘[t]he measure of the [g]overnment’s damage is the difference between what it cost it to do the work and what it would have cost it to do the work had the appellant not been terminated for default.’”); see also Gen. Dynamics Corp. v. United States, 671 F.2d 474, 480 (Ct. Cl. 1982) (concluding that if a plaintiff breached its contract, the government is entitled to the costs of reprocurement which exceeded the amount for which the plaintiff was obligated to perform). The government may recover excess reprocurement costs only when it shows: “(1) the reprocured [services] are the same as or similar to those involved in the termination; (2) the [g]overnment actually incurred excess costs; and (3) the [g]overnment acted reasonably to minimize the excess costs resulting from the default.” Cascade Pac. Int’l, 773 F.2d at 294 (citations omitted). The first factor is demonstrated by comparing the original contract with the reprocurement contract. Id. (citation - 49 - omitted). The Court may deny the government its reprocurement costs when it has made “substantial and material changes in the physical nature of the performance, i.e., the work to be performed . . . , from the original contract to the re[procurement] contract.” Seaboard Lumber Co., 308 F.3d at 1298 (citation omitted). Plaintiff bears “the burden of proving the effects of changes in the reprocurement contract terms on the contract price.” Id. at 1301. The second factor merely “requires the [g]overnment to show what it spent in reprocurement.” Cascade Pac. Int’l, 773 F.2d at 294 (citation omitted). “The third condition requires that the [g]overnment act within a reasonable time of the default, use the most efficient method of reprocurement, obtain a reasonable price, and mitigate its losses.” Id. (footnote omitted). Regarding the first element, plaintiff identifies thirty changes the government made between its contract in 2014 and the reprocurement contract in 2015. Pl.’s MSJ at 21–22 (comparing Ex. J (2015 resolicitation) and Ex. I (plaintiff’s offer on the 2014 solicitation)). The government added new billing items, changed disposal locations, accelerated the timeline, altered insurance requirements, made past dredging records available, reinserted the warnings it removed in 2014, required a cutterhead and 12” discharge pipe, identified sunken vessels, and more. Id. The government, no doubt, learned from its experience with plaintiff in 2014. Tr. at 99:4–5 (government counsel stating, “I’m sure this experience informed [the changes] to some degree.”). The reprocurement reflects “[t]he fact that the government might not have written a perfect contract” in 2014. Tr. at 215:3–4 (government counsel), 219:19–20 (“Certainly no contract is perfect. I don’t think the Corps was perfect in this case.” (government counsel)). The reprocurement may imply plaintiff was the victim of “an experiment that failed.” Tr. at 199:20 (the Court). No matter how deserving of sympathy plaintiff may be, however, there is no support for plaintiff’s conclusion that the changes it identifies “substantial[ly] and material[ly] change[d]” the work to be performed. Seaboard Lumber Co., 308 F.3d at 1298. The two contracts were both for dredging the same waterway in La Push, Washington. Def.’s Cross-MSJ App. at 131 (cover page of the 2014 solicitation); Ex. J at 1 (cover page of the 2015 resolicitation). The reprocurement contract required just 3.8% less material to be dredged. Compare Ex. J at 2–4, with Ex. I at 3–5 (76,000 cubic yards for the 2015 reprocurement contract, compared to 79,000 for the 2014 contract). The reprocurement contract cost 0.5% less than the contract awarded to plaintiff. Def.’s Reply at 23 (“[Plaintiff] ignores that the reprocurement contract cost nearly $7,000 less than the contract awarded to MIC.” (citing First Am. Answer to Second Am. Compl. and Countercl. at 9). Plaintiff makes no attempt to carry its “burden of proving the effects of changes in the reprocurement contract terms on the contract price.” Seaboard Lumber Co., 308 F.3d at 1301. Plaintiff cannot carry this burden because the same service was performed and for less money—the only difference is the reprocurement contractor had the benefit of learning from plaintiff’s failure before undertaking the project. Id.; Cascade Pac. Int’l, 773 F.2d at 294. To support its position, plaintiff cites several cases in which the court held the government was not entitled to excess reprocurement costs due to substantial and material changes to the reprocurement contract. Pl.’s MSJ at 21–22. Plaintiff ignores the significant impact on contract price the changes to the original contract had in each of the cases cited. Am. Bonding Co. of Baltimore v. United States, 167 F. 910, 914, 922 (9th Cir. 1909) (finding substantial changes in the contract led to an almost 27% increase in contract price), aff’d sub - 50 - nom. United States v. Axman, 234 U.S. 36 (1914) 14; Schwartz v. United States, 65 F. Supp. 391, 392 (Ct. Cl. 1946) (finding the substantial changes to the contract led to a 192% increase in the reprocurement contract price); Consol. Airborne Sys., Inc., 348 F.2d at 943 (48% increase in unit price); California Bridge & Constr. Co. v. United States, 50 Ct. Cl. 40, 54–55 (1915) (the government’s excess costs were more than 51% higher than plaintiff’s aggregate costs and expected profits), aff’d sub nom. United States v. California Bridge & Constr. Co., 245 U.S. 337 (1917); Rosenberg v. United States, 76 Ct. Cl. 662, 669 (1933) (52% increase in contract price); George Leary Constr. Co. v. United States, 63 Ct. Cl. 206, 212 (1927) (128% increase in contract price). Plaintiff acknowledged it has “the burden of proving the effects of changes in the reprocurement contract terms on the contract price.” Pl.’s MSJ at 19 (citing Seaboard Lumber Co., 308 F.3d at 1301). Inexplicably, plaintiff does not even address the reprocurement contract price; accordingly, plaintiff has failed to demonstrate how any change to the reprocurement contract is substantial or material. Seaboard Lumber Co., 308 F.3d at 1301. The Court finds the reprocured services are similar to that which plaintiff was contracted to perform. Id.; Cascade Pac. Int’l, 773 F.2d at 294. As for the second element, the government asserts it incurred excess reprocurement costs totaling $409,345.60. Def.’s Reply at 23 (citing First Am. Answer to Second Am. Compl. and Countercl. at 9) (“Excess reprocurement costs totaling $409,345.60, calculated as the difference between the amounts paid to plaintiff ($416,000) . . . plus the amount paid for the follow-on contract ($1,283,595.50), minus the original contracted amount ($1,290,250).”). Plaintiff does not dispute the government’s asserted excess reprocurement costs, likely because the claim amounts to what is effectively a refund of the project mobilization costs the government paid plaintiff up front. Second Am. Compl. Ex. 3 at 1 (the USACE contracting officer’s Final Decision on Reprocurement Costs and Demand for Payment); see also Def.’s Cross-MSJ App. at 9 (plaintiff’s contract showing the project mobilization line item). Further, plaintiff enjoys the benefit of the nearly $7,000 discount the government obtained in reprocuring dredging services because the government subtracts that from its claimed amount owed. Second Am. Compl. Ex. 3 at 1. Accordingly, because this is undisputed, the Court finds the government actually incurred excess costs. Cascade Pac. Int’l, 773 F.2d at 294; see Armour of Am., 96 Fed. Cl. at 761–62 (citation omitted) (“In calculating excess reprocurement costs, ‘[t]he measure of the [g]overnment’s damage is the difference between what it cost it to do the work and what it would have cost it to do the work had the [contractor] not been terminated for default.’”). Regarding the third element, plaintiff alleges the government paid the reprocurement contractor $73,035 in bad faith. Pl.’s Reply at 13. The government did not pay the reprocurement contractor the alleged $73,035; rather, the government paid the contractor a 14 Plaintiff argues United States v. Axman, 234 U.S. 36 (1914), stands for the proposition that changing disposal locations is a prima facie material change barring recovery of reprocurement costs. Pl.’s MSJ at 20. Axman does not take such a bold and narrow position; rather, after the lower court found the change increased price by 27%, the Supreme Court found the disposal location was “an essential and particular term of the contract” which the contractor was required to comply with to satisfy its performance obligations. Axman, 234 U.S. at 43. The Supreme Court held the different disposal location was “a material matter . . . different from the contract first entered upon.” Id. at 45. Given the reprocurement contract price in this case is less than the original, any change in disposal location in the reprocurement must not be “a material matter.” Id.; Seaboard Lumber Co., 308 F.3d at 1301 (holding plaintiff bears the “burden of proving the effects of changes in the reprocurement contract terms on the contract price”). - 51 - veritable $2,392.50 due to yardage loss from a dredging boundary change. Def.’s Reply at 24 (citing App. to Def.’s Reply (“Def.’s Reply App.”) at 3–4, ECF No. 90 (equitable adjustment to the 2015 contract)). Plaintiff presents no other challenge to the reasonableness of the government’s excess reprocurement costs. The government reprocured the dredging services immediately so the reprocurement contractor could begin as soon as the fish window ended and did so for a nearly $7,000 discount. Def.’s Cross-MSJ App. at 524 (2015 contract milestones); Second Am. Compl. Ex. 3 at 1 (the USACE contracting officer’s Final Decision on Reprocurement Costs and Demand for Payment). Accordingly, the Court finds “the [g]overnment acted reasonably to minimize the excess costs resulting from the default.” Cascade Pac. Int’l, 773 F.2d at 294. Without considering the amount, if any, of reprocurement costs the government is entitled to, or the availability of any remaining defense to this claim, the Court finds no dispute of material fact that the government is entitled to recover its excess reprocurement costs in this case. Matsushita, 475 U.S. at 587; Cascade Pac. Int’l, 773 F.2d at 294. Accordingly, the Court grants in part the government’s motion for summary judgment as to the validity of its claim for reprocurement costs and denies plaintiff’s motion for summary judgment on the same. Seaboard Lumber Co., 308 F.3d at 1301; Cascade Pac. Int’l, 773 F.2d at 294. B. Whether the Government May Recover Administrative Costs In addition to excess reprocurement costs, the government seeks to recover its administrative costs. Def.’s Cross-MSJ at 48. The government argues because plaintiff’s “excusable delay defenses fail, and because [plaintiff] does not dispute that USACE actually incurred its claimed administrative costs, the [government] is entitled to summary judgment on its claim for those costs as well.” Id. Plaintiff argues the government has failed to support this claim to administrative costs with any evidence. Pl.’s Reply at 29. The government replies by directing plaintiff to the “USACE’s certified demand for payment, signed by the Contracting Officer.” Def.’s Reply at 24 (citing Second Am. Compl. Ex. 3 at 2 (the USACE contracting officer’s Final Decision on Reprocurement Costs and Demand for Payment)). Plaintiff has possessed and never challenged the government’s breakdown of its costs, the government argues. Id. (citing Def.’s Reply App. at 6–7 (costs breakdown)). The parties’ contract incorporates by reference FAR 52.249-10(d), which states, “The rights and remedies of the [g]overnment in this clause are in addition to any other rights and remedies provided by law or under this contract.” See Def.’s Cross-MSJ App. at 15 (the 2014 contract). This court has routinely held, under nearly identical provisions, “the government has the right to seek common law damages for breach of contract following a termination for default.” Tester Corp. v. United States, 1 Cl. Ct. 370, 376 (1982), judgment entered, 1 Cl. Ct. 368 (1983); see Armour of Am., 96 Fed. Cl. at 770; Marley v. United States, 423 F.2d 324, 334– 35 (Ct. Cl. 1970); Rumley v. United States, 285 F.2d 773, 776–77 (Ct. Cl. 1961). The government is therefore “not limited solely to the excess dollar amount paid to the reprocurement contractor, the so-called ‘excess costs.’” Tester Corp., 1 Cl. Ct. at 376. Accordingly, the government may seek to recover all damages “that are the foreseeable, direct, natural and proximate results of the breach.” Id. (citing William Cramp & Sons Ship & Engine Bldg. Co. v. United States, 50 Ct. Cl. 179, 191 (1915)); see Armour of Am., 96 Fed. Cl. at 770 (awarding - 52 - administrative costs on top of excess reprocurement costs because “the administrative costs which defendant seeks were ‘foreseeable, direct, natural and proximate’ costs resulting from plaintiff’s failure to fulfill its contract”). “It is clear that, properly established, ‘administrative costs,’ . . . are recoverable in breach of contract cases.” Tester Corp., 1 Cl. Ct. at 377 (citing Se. Airways Corp. v. United States, 673 F.2d 368, 378–79 (Ct. Cl. 1982) (a termination for default reprocurement damages case which allowed for recovery of “administrative costs”)). The government claims $271,006 in administrative costs, “solely attributable to the [g]overnment effort to obtain a follow-on contract to fulfill the requirements that [plaintiff] failed to perform.” Second Am. Compl. Ex. 3 at 2 (the USACE contracting officer’s Final Decision on Reprocurement Costs and Demand for Payment). The government states: “This amount does not include the amounts spent to close out the above referenced terminated contract, nor does this amount include the amounts expended in administration of the follow-on contract. The reprocurement was for the same requirement using substantially the same contracting method.” Id. Plaintiff does not argue the government’s administrative costs were unforeseeable, or that they are not the proximate result of its failure to perform the contract. Armour of Am., 96 Fed. Cl. at 770. Prior to bidding on the contract, plaintiff certainly could have foreseen the government would have to reprocure dredging services if it was awarded the contract and failed to perform. Tester Corp., 1 Cl. Ct. at 377. It naturally follows someone would have to dredge the waterway if plaintiff did not. Id. The government has limited its administrative costs calculation to only those costs which would be the foreseeable result of plaintiff’s breach—i.e., the costs to administer the reprocurement. Id.; Armour of Am., 96 Fed. Cl. at 770. The Court accordingly finds the government’s administrative costs “[are the] foreseeable, direct, natural and proximate results of” plaintiff’s failure to perform under the contract. Tester Corp., 1 Cl. Ct. at 376; Armour of Am., 96 Fed. Cl. at 770. The Court already found plaintiff was in default at termination, see supra Section V.; thus, the government may recover its administrative costs in this case. Tester Corp., 1 Cl. Ct. at 377; Armour of Am., 96 Fed. Cl. at 770. Without considering the amount, if any, of administrative costs the government is entitled to, or the availability of any remaining defense to this claim, the Court finds no dispute of material fact that the government is entitled to recover its administrative costs in this case. Matsushita, 475 U.S. at 587; Tester Corp., 1 Cl. Ct. at 377; Armour of Am., 96 Fed. Cl. at 770. Accordingly, the Court grants in part the government’s motion for summary judgment as to the validity of its claim for administrative costs and denies plaintiff’s motion for summary judgment on the same. Tester Corp., 1 Cl. Ct. at 377; Armour of Am., 96 Fed. Cl. at 770. C. Whether the Government May Recover Liquidated Damages Liquidated damages are used “to allocate the consequences of a breach before it occurs,” Jennie-O Foods, Inc. v. United States, 580 F.2d 400, 412 (Ct. Cl. 1978) (per curiam), which “save[s] the time and expense of litigating the issue of damages,” DJ Mfg. Corp. v. United States, 86 F.3d 1130, 1133 (Fed. Cir. 1996). “When they are fair and reasonable attempts to fix just compensation for anticipated loss caused by breach of contract, they are enforced.” Priebe & Sons v. United States, 332 U.S. 407, 411 (1947) (citations omitted). Liquidated damages “serve a particularly useful function when damages are uncertain in nature or amount or are unmeasurable, as is the case in many government contracts.” Id. Conversely, a liquidated - 53 - damages clause is unenforceable if it is “plainly without reasonable relation to any probable damage which may follow a breach,” Kothe v. R.C. Taylor Tr., 280 U.S. 224, 226 (1930), or is “so extravagant, or disproportionate to the amount of property loss, as to show that compensation was not the object aimed at or as to imply fraud, mistake, circumvention, or oppression,” Wise v. United States, 249 U.S. 361, 365 (1919). In these circumstances, the liquidated damages clause would amount to an impermissible penalty. Priebe & Sons, 332 U.S. at 413; United States v. Bethlehem Steel Co., 205 U.S. 105, 118–21 (1907). “When presented with a challenge to a liquidated damages clause, a court must judge the clause ‘as of the time of making the contract’ and without regard to the amount of damages, if any, actually incurred by the nonbreaching party.” K-Con Bldg. Sys., Inc. v. United States, 97 Fed. Cl. 41, 50 (2011) (first citing Priebe & Sons, 332 U.S. at 412; and then citing Bethlehem Steel Co., 205 U.S. at 119 (noting courts will enforce liquidated damages clauses “without proof of the damages actually sustained”)). The party challenging a liquidated damages provision bears a “heavy” burden, and “it is generally improper for a court ‘to inquire into the process that the contracting officer followed in arriving at the liquidated damages figure that was put forth in the solicitation and agreed to in the contract.’” Id. (citing DJ Mfg. Corp., 86 F.3d at 1134–37). “That burden is an exacting one, because when damages are uncertain or hard to measure, it naturally follows that it is difficult to conclude that a particular liquidated damages amount or rate is an unreasonable projection of what those damages might be.” DJ Mfg. Corp., 86 F.3d at 1134. If it is “certain when the contract was made [and] later proved to be” that a breach “would not occasion damage,” however, then the liquidated damages clause is not “a fair estimate of damages to be suffered but . . . serve[s] only as an added spur to performance.” Priebe & Sons, 332 U.S. at 413. Such an arrangement is unenforceable. Id. 1. Whether the Government is Entitled to Liquidated Damages Charged Between 1 March 2015 and 31 August 2015 Plaintiff argues the government is not entitled to liquidated damages during the fish window because, “[b]y law and contractual limitation, no work could legally be done between March 1 and August 31.” Pl.’s MSJ at 83. Plaintiff asserts, “[c]omputing damages for monitoring on-site work for a known time period where on-site work is prohibited by law and the contract is without reasonable relation to any probable damage which may follow a breach for that time period.” Id. at 84. There are no costs during the fish window, according to plaintiff, so applying liquidated damages during that period would be “a mistake and oppressive.” Id.; Pl.’s Reply at 28 (also characterizing the damages as a penalty and punitive). The government responds by stating “the work window was well known ‘as of the time of making the contract,’ and the liquidated damages provision did not exempt time outside of that period from damages accrual.” Def.’s Cross-MSJ at 50. The government argues there is “no evidence to suggest the provision is an impermissible penalty, as opposed to a ‘reasonable forecast of just compensation for breach of contract,’ intended to account for the time, cost, reputational harm, and any other difficulties that USACE might reasonably expect to encounter if [plaintiff] failed to complete the project.” Id. (citing K-Con Bldg. Sys., Inc., 97 Fed. Cl. at 49). The liquidated damages accrual during the fish window is not intended to account for “monitoring on-site work,” Def.’s Reply at 25 (quoting Pl.’s Reply at 28), according to the - 54 - government; rather, they are “a pre-agreed remedy ‘without regard to the amount of damages, if any, actually incurred by the nonbreaching party.’” Id. (quoting K-Con Bldg. Sys., Inc., 97 Fed. Cl. at 50). The contract’s liquidated damages provision states: (a) If the [c]ontractor fails to complete the work within the time specified in the [c]ontract, or any extension, the [c]ontractor shall pay to the [g]overnment as liquidated damages, the sum of $1,400.00 for each day of delay until the work is completed or accepted. (b) If the [g]overnment terminates the [c]ontractor’s right to proceed, the resulting damages will continue to accrue until the work is completed. These liquidated damages are in addition to excess cost of repurchase . . . . Def.’s Cross-MSJ App. at 40 (the 2014 contract). The contract also provided for all work to be completed before 1 March 2015, to accommodate for “the fish window . . . [a] period where dredging cannot occur because of the environmental concerns.” Tr. at 111:8–112:2 (government counsel); see Def.’s Cross-MSJ App. at 276 (the 2014 solicitation limiting the work window). The reprocurement contract similarly accounted for the fish window, as it prohibited any dredging before 1 September 2015. See Ex. J at 79 (the resolicitation). “No[ one is] arguing that dredging should have occurred during the fish window.” Tr. at 111:25–112:2 (the Court, to which government counsel responded: “Correct.”). Yet despite the total bar on any dredging activity, the liquidated damages clause is silent as to the fish window, so the government seeks to recover $257,600 in liquidated damages for this period. See Def.’s Cross-MSJ App. at 40 (the 2014 contract); Def.’s Cross-MSJ at 49. The government estimated the $1,400 per day liquidated damages figure based on the labor and travel costs the government would incur while a contractor was on-site dredging material. See Ex. A at 9 (deposition of USACE project manager John Pell at 58:21–59:7 (excerpts)); Bowser Decl. Ex. 19, ECF No. 80-12 (the government estimating its liquidated damages with fairly exact numbers). Plaintiff does not challenge the $1,400 figure, nor does the Court “inquire into the process that the contracting officer followed in arriving at the liquidated damages figure.” DJ Mfg. Corp., 86 F.3d at 1137. What the Court does inquire into is the application of the government’s liquidated damages figure. Priebe & Sons, 332 U.S. at 412–13. The liquidated damages clause must be “reasonabl[y] relat[ed] to any probable damage which may follow a breach.” Kothe, 280 U.S. at 226. It is quite clear in this case, however, the application of the liquidated damages provision to the fish window is not “reasonabl[y] relat[ed] to any probable damage.” Id. Rather, the liquidated damages provision serves to compensate the government for additional dredging days it would have to supervise a contractor in the event plaintiff failed to finish on time. Ex. 19 (liquidated damages calculation). No such dredging or supervision could occur during the fish window; therefore, the liquidated damages during the fish window are completely unrelated to any probable damage the government could have encountered. Kothe, 280 U.S. at 226. Since it was “certain when the contract was made [and] later proved to be” that plaintiff’s breach “would not occasion damage” during the fish window, the liquidated damages provision cannot be applied between 1 March and 31 August. Priebe & Sons, 332 U.S. at 413; Kothe, 280 U.S. at 226. - 55 - Regarding the government’s argument the Court must assess the liquidated damages provision “‘as of the time of making the contract’ and without regard to the amount of damages, if any, actually incurred by the nonbreaching party[,]” the Court does so here. Def.’s Cross-MSJ at 49 (quoting K-Con Bldg. Sys., Inc., 97 Fed. Cl. at 50). All parties to the contract were well aware of the fish window and the limitations on dredging at the time of contract formation. Def.’s Cross-MSJ App. at 263–65 (water quality certification), 276 (2014 solicitation limiting the work window); Tr. at 111:8–112:2, 217:3–4 (government counsel stating “the fish window was a known factor that existed at the time the liquidated damages provision was implemented.”); Def.’s Cross-MSJ at 50 (“[T]he work window was well known ‘as of the time of making the contract’ . . . .”). The government included the liquidated damages provision to account for its costs, estimated at contract formation, associated with a contractor’s performance extending beyond 150 days—not simply for days the waterway remained undredged. See Ex. 19 (liquidated damages calculation); Def.’s Cross-MSJ App. at 139 (2014 solicitation). Accordingly, “as of the time of making the contract,” it could be determined that accruing $1,400 per day during the fish window, when no dredging could possibly occur, would not actually be associated with “any probable damage which may follow a breach.” Priebe & Sons, 332 U.S. at 412; Kothe, 280 U.S. at 226. The government fails to identify any such probable damage. The liquidated damages in this case are distinguishable from those discussed in other cases because, here, they are not “uncertain or hard to measure.” DJ Mfg. Corp., 86 F.3d at 1134. The government easily calculated what its costs would be per day if plaintiff’s performance exceeded the allotted 150 days. See Ex. 19 (liquidated damages calculation); Def.’s Cross-MSJ App. at 139 (the 2014 solicitation requiring completion within 150 days). Therefore, “it naturally follows” that applying the liquidated damages clause during the fish window “is an unreasonable projection of what those damages might” have been. DJ Mfg. Corp., 86 F.3d at 1134. The government asserts the liquidated damages clause, regardless of any dredging activity, is simply a “pre-agreed remedy,” Def.’s Reply at 25, “intended to account for the time, cost, reputational harm, and any other difficulties th[e] USACE might reasonably expect to encounter.” 15 Def.’s Cross-MSJ at 50. While it is possible the government may have encountered some element of harm during the fish window due to plaintiff’s breach, the government did not include a liquidated damages provision in the contract to account for that particular harm. See Def.’s Cross-MSJ App. at 40 (the 2014 contract liquidated damages clauses). Instead, the government took its relatively certain and measurable liquidated damages for breach during the work window and attempted to claim those for a period of time when such harm was an impossibility. Priebe & Sons, 332 U.S. at 411. This liquidated damages claim is 15 At oral argument, the government also asserted liquidated damages are a substitute for the post-award administrative costs it is not claiming. Tr. at 217:17–218:4 (“Mind you, the government did not seek recovery of post-award administrative costs. . . . And they’re not being claimed because the parties agree[d] to a liquidated damages provision.” (government counsel)). Determining the government is not entitled to liquidated damages during the fish window has only a nominal impact, if any, on the government’s ability to recoup its post-award administrative costs, however. The government awarded the resolicitation to the reprocurement contractor on 27 August 2015, just four days before the end of the fish window, and dredging did not begin until 25 September 2015. Def.’s Cross-MSJ App. at 524 (2015 contract milestones). Considering the government is claiming liquidated damages for the entire period between the close of the fish window and completion of the project, the government will still likely recoup its post-award administrative costs, as this finding only eliminates four days of liquidated damages that were post-award. Def.’s Reply at 25. - 56 - “plainly without reasonable relation to any probable damage” that followed plaintiff’s breach and arose during the fish window. Kothe, 280 U.S. at 226. The liquidated damages clause as applied to the fish window is not “a fair estimate of damages to be suffered but . . . serve[s] only as an added spur to performance.” Priebe & Sons, 332 U.S. at 413; Kothe, 280 U.S. at 226. The Court finds no dispute of material fact; the government is not entitled to recover under the liquidated damages clause between 1 March 2015 and 31 August 2015. Priebe & Sons, 332 U.S. at 413; Matsushita, 475 U.S. at 587. Accordingly, the Court grants plaintiff’s motion for summary judgment and denies the government’s motion for summary judgment on this issue. Priebe & Sons, 332 U.S. at 413; Kothe, 280 U.S. at 226; Wise, 249 U.S. at 365; DJ Mfg. Corp., 86 F.3d at 1134. 2. Whether the Government is Entitled to the Remainder of its Liquidated Damages The government argues because plaintiff “poses no separate challenge” to the accrual of liquidated damages outside of the fish window, the government “is entitled to at least the $93,800 in liquidated damages for the 67 days between [plaintiff’s] termination for default and the reprocurement contract completion that are outside of the time period that [plaintiff] separately contests.” Def.’s Cross-MSJ at 49. Plaintiff argues the government is not entitled to the remainder of its liquidated damages claim because the termination for default was improper. Pl.’s Reply at 27 (citing its various motions for summary judgment). The government arrived at the $1,400 per day figure by estimating the labor and travel costs the government would incur while a contractor was on-site dredging material. See Ex. A at 9 (deposition of USACE project manager John Pell at 58:21–59:7 (excerpts)); Ex. 19 (the government estimating its liquidated damages with fairly exact numbers). Plaintiff does not challenge the $1,400 figure or its application to the period of time outside the fish window. The liquidated damages clause, as applied outside the fish window, is “reasonabl[y] relat[ed] to any probable damage which may follow a breach” because it is tied to damages the parties could have anticipated the government would face as a consequence of having to supervise the reprocurement contractor while it dredged the waterway. Kothe, 280 U.S. at 226; see Ex. A at 9 (deposition of USACE project manager John Pell at 58:21–59:7 (excerpts)); Ex. 19 (liquidated damages calculation). As applied to the work window, the liquidated damages clause is a “fair and reasonable attempt[] to fix just compensation for anticipated loss caused by breach of contract.” Priebe & Sons, 332 U.S. at 411. Plaintiff presents no challenge to the reasonableness of the liquidated damages provision as applied to the work window, so plaintiff has not met its “heavy” burden. K-Con Bldg. Sys., Inc., 97 Fed. Cl. at 50 (citing DJ Mfg. Corp., 86 F.3d at 1134). Accordingly, the Court finds the government’s liquidated damages figure, as applied outside the fish window, is a “fair and reasonable attempt[] to fix just compensation for anticipated loss caused by breach of contract,” and is therefore enforceable. Priebe & Sons, 332 U.S. at 411; Kothe, 280 U.S. at 226. Without considering the amount, if any, of liquidated damages the government is entitled to, or the availability of any remaining defense to this claim, the Court finds no dispute of material fact the government is entitled to recover under the liquidated damages provision for the - 57 - period of time outside the fish window. Matsushita, 475 U.S. at 587; Priebe & Sons, 332 U.S. at 411. Accordingly, the Court grants in part the government’s motion for summary judgment on the validity of its claim to liquidated damages outside the fish window and denies plaintiff’s motion for summary judgment on the same. Priebe & Sons, 332 U.S. at 413; Kothe, 280 U.S. at 226; Wise, 249 U.S. at 365; DJ Mfg. Corp., 86 F.3d at 1134. IX. Conclusion For the reasons discussed supra, the Court GRANTS IN PART and DENIES IN PART plaintiff’s motion for summary judgment and GRANTS IN PART and DENIES IN PART the government’s cross-motion for summary judgment. The parties SHALL FILE a joint status report proposing a timeline for further proceedings consistent with this opinion on or before 17 March 2022. Accordingly, the Court finds this perfect storm has not yet concluded. IT IS SO ORDERED. s/ Ryan T. Holte RYAN T. HOLTE Judge - 58 -