Free Proposed Findings of Uncontroverted Fact - District Court of Federal Claims - federal

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS CLEARWATER CONSTRUCTORS, INC., ) ) Plaintiff, ) ) v. ) ) THE UNITED STATES, ) ) Defendant. )

No. 01-351C (Judge Merow)

DEFENDANT'S PROPOSED FINDING OF UNCONTROVERTED FACTS Pursuant to Rule 56(d)(1) of the Rules of the United States Court of Federal Claims, defendant, the United States, respectfully submits the following proposed findings of uncontroverted fact in support of its Motion for Summary Judgment. 1. Clearwater Constructors, Inc. ("Clearwater") and the United States Army Corps of

Engineers ("the Corps") entered into a contract ("the contract") on February 20, 1986, in the amount of $17,487,000, for the construction of the "Three Bay Hangar" at Grand Forks AFB, North Dakota. The final completion date was October 6, 1987, and work was substantially complete by that date. Comp. 11; A 1.2 2. Clearwater Constructors subcontracted Section 8c of the specifications to Fleming Steel

Company ("Fleming"). The subcontract, in the amount of $404,000, was "to complete all hangar doors to the satisfaction of the Owner." Comp. 10; A 1. 3. Fleming's original submittals of door design were rejected by the Corps for failure to

comply with the contract's specifications. Comp. 12.

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"Comp.__" refers to a paragraph of plaintiff's complaint. "A__" refers to a page of the appendix attached to this filing.
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4.

The contract contains the following provisions relevant to the wind load upon the

horizontal opening hangar doors: a. Section 8C, paragraph 3.1.1 of the contract, which provides that: Each set of hangar doors shall be capable of being fully opened, under any wind load conditions up to and including the maximum design wind load condition of 45 pounds per square foot for the tail doors and 40 pounds per square foot for the horizontal rolling doors, from the closed position by electric power within 1 ½ minutes from the time that the controls are activated. A 12. b. Section 8C, paragraph 3.2.1 of the contract, which specifies that the contractor would design all hangar doors to "resist all wind . . . loads specified." A 13. c. The chart labeled Wall Wind Loads upon Sheet S-44 of the contract's specifications, which includes a 40 pound per square foot load on the Girt (suction) for the low building. A 17. 5. The Designer Notes on Sheet S-44 of the contract's specifications states that: The structural design was prepared using the following data: --4. Wind Load: A. B. C. D. E. F. Basic Wind Speed = 80 mph ANSI A581-82 Design Exposure = "C" Category III: I = 1.07 See S-44 for roof uplift pressures See S-44 for wall pressures Main Resisting Systems: (1) 0-30 feet = 30 psf (2) 30-70 feet = 35 psf
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A 17. 6. ANSI Standard 58.1-1982 provides that a "Main Resisting System" is: . . . an assembly of major structural elements assigned to provide support for secondary members and cladding. The system primarily receives wind loads from relatively remote locations. Examples include rigid and braced frames, space trusses, roof and floor diaphragms, sheer walls and rod-braced frames. A 3. The hangar doors would be "secondary members or cladding" which were supported by the main resisting system. A 44-45. 7. An independent calculation of the wind load performed by the Corps utilizing the figures

from Sheet S-44's Designer Notes yields negative pressures (suction) to range from 37.5 pounds per square foot for areas greater than 500 square feet to 45.6 pounds per square foot for areas less than 10 square feet. A 45. 8. Mr. Seth Kohn was the vice-president of Fleming in 1986, A 20, and created Fleming's

estimate for its portion of the contract. A 24. When Mr. Kohn performed the initial review of the specifications, he identified the design wind loads as 40 pounds per square foot. A 21, 223, 25. Mr. Kohn's initial review was overruled by another official at Fleming who lined through the "40" and wrote "30" instead. A 21, 22, 30. 9. Fleming made no request for clarification to the Corps of the contract's requirements at

any time prior to its providing the first submittals after the contract award to Clearwater. A 4243.

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Appendix page 22 is a magnified version of a portion of the document in Appendix
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10.

Fleming's original contract submittals were premised upon a wind load of 30 pounds per

square foot. Comp. 17. The Corps rejected this interpretation and re-iterated its requirement that the doors be able to withstand a maximum wind load of 40 pounds per square foot. Comp. 18. 11. Section 8C, paragraph 2.6.2 of the contract specifications reads, in pertinent part, as

follows:"Tolerances for Bottom Rail. Rails shall be standard ASCE or AREA rail weighing not less than 60 pounds per yard . . ." A 12. 12. When Mr. Kohn performed his estimate for Fleming, he presumed that the specifications

required a 60 pound per yard rail and wrote, "specs call for 60 # rail" upon his bid sheet. A 21, 22. Because of the size of the 60 pound rail, Mr. Kohn departed from the specifications by estimating 15 inch diameter wheels, rather than the 12 inch wheels required in the contract specifications. He did so because he believed the smaller diameter wheels called for in the contract were inconsistent with the 60 pound rail. A 21, 22, 32, 33. 13. By letter of March 31, 1986, Fleming raised the issue of the rail weight to the Corps,

indicating Fleming's understanding that the minimum weight required by the contract was 60 pounds per yard, but recommending that 30 pounds per yard would be sufficient. A 19. 14. Contract Drawings, Sheet S-53, Detail E, shows the rail head to be ¾ inch above the

finished floor surface. A 18. 15. Fleming's first design submittal demonstrated the rail head to be flush with the finished

floor surface. The Corps required that the design be in accordance with the specifications, and Fleming made a second, conforming submission. Comp. 45, 46.

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16.

Section 8C, paragraph 6.3 of the contract specifications provides that "each door leaf

shall be provided with a minimum of four top guide roller assemblies at a maximum spacing of 6'-0" center to center." Comp. 26. 17. Mr. Kohn recognized at the time that he estimated the contract, that it was physically

impossible for the hangar doors to operate with four rollers attached to the central door leaves. A 26-29. 18. Fleming's initial design submittal, produced on May 1, 1986, indicated the use of two top

guide rollers per leaf. Comp. 28. The Corps rejected this plan initially, but ultimately permitted Fleming to utilize two rollers for the central door leaves along with the four rollers-per-leaf specified for the other door leaves. Comp. 31, 32. 19. Section 8C, paragraph 6.10.1 of the contract specifications provides that: Leading and trailing edges of each door in each four-leaf group shall be provided with a double run of safety edge.... Only the safety edges on the edge of the group in the direction of travel shall stop door movement in that direction. A 14. 20. When Mr. Kohn estimated Fleming's bid for the contract, he wrote, "Lead and Trail?" in

the section related to the safety edges. A 21. Without explanation, Mr. Kohn's supervisor wrote that the safety edges would only be placed on the leading edges of the doors. Id. Mr. Kohn now states that safety edges on the trailing edges of the doors would have been impossible as specified because the brackets for the cable system which operated the doors would have interfered with their operation. A 35, 36; see also Comp. 83. 21. Fleming's submittal with respect to safety edges was made on May 12, 1986, and

contained a safety edge design that deviated from the contract specifications, instead following an industry practice which Fleming felt appropriate for the door type in question. Comp. 85.
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22.

After discussions, Fleming demonstrated to the satisfaction of the Corps that certain of its

proposals with respect to the safety edges were appropriate, and these were approved. Comp. 92 23. The contract provided that there would be pedestrian doors for entry into the hangar

without the necessity for opening the larger hangar doors. The location of the pedestrian doors was only described relatively generally in the contract. A 33; Comp. 28. Although the Corps initially rejected Fleming's proposed location for the doors, upon further review and discussion with Fleming, it permitted Fleming to locate the doors as it liked. A 33-34; Comp. 27-28. 24. The contract called for a particular steel shape, MC7x19.1, to be used as top guide

material. Comp. 94. Clearwater's structural steel contractor claimed to have difficulty obtaining this particular type of steel, and in response, Clearwater directed Fleming to redesign its doors to work with the different shaped top guide. Id. The Corps permitted Clearwater and Fleming to make these changes and, Fleming concedes, there was no long delay for the Corps approval of the new design. A 40-41. 25. Section 8C, paragraph 6.8.6 of the specifications calls for "High speed shaft brakes

integral with the gear reducers" as one option for stopping the moving doors. A 15. A second option, in paragraph 6.8.16, allows for hydraulic wheel brakes. A 16. 26. Fleming's first door submittal contained a brake system that was not clearly either of the

options noted in the preceding paragraph. The Corps commented, saying, "Brake appears to be integral with motor instead of integral with the gear reducers as specified. Please clarify." Comp. 73. The means Fleming proposed were "what was supposed to be the most practical way, not what the specs called for." A 39. Fleming provided additional clarification and the Corps ultimately agreed to allow it to build the braking system by the means it proposed. Comp. 73.

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26.

On April 25, 1988, the Corps' Omaha District Black Hills Area Office received Serial

Letter 530, dated April 22, 1988 from Clearwater, giving notice of a claim from Fleming and advising that further information would be forthcoming. A 1. On March 14, 1996, the Corps received a certified claim from Fleming through Clearwater. Comp. 3. This claim was denied in its entirety by the Corps on June 15, 2000. A 9. Respectfully submitted, PETER D. KEISLER Assistant Attorney General DAVID M. COHEN Director

s/James M. Kinsella JAMES M. KINSELLA Deputy Director

s/J. Reid Prouty J. REID PROUTY Trial Attorney Commercial Litigation Branch Civil Division Department of Justice Attn: Classification Unit 8th Floor, 1100 L Street, NW Washington, D.C. 20530 Tel: (202) 305-7586 Fax: (202) 514-7969 July 20, 2005 Attorneys for Defendant

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APPENDIX INDEX Contracting Officer's Final Decision ............................................................................................. 1 Excerpts from contract plans and specifications .......................................................................... 10 Letter from Fleming Steel Company dated March 31, 1986 ....................................................... 19 "Tab sheet" used in Fleming Steel Company's Bid Preparation ................................................. 21 Excerpts from Deposition of Seth Kohn ...................................................................................... 23 Excerpts from Deposition of Robert Dalberg .............................................................................. 37 Declaration by Polina Poluetkova ................................................................................................ 42 Declaration by Bruce Harris ........................................................................................................ 44

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