United States District Court, M.D. Florida, Tampa Division
UNITED STATES OF AMERICA for the use and benefit of GLF CONSTRUCTION CORPORATION, a Florida profit corporation, Plaintiff,
FEDCON JOINT VENTURE, a Florida joint venture, DAVID BOLAND, INC., a Florida profit corporation, JT CONSTRUCTION ENTERPRISE CORPORATION, and WESTERN SURETY COMPANY, Defendants. FEDCON JOINT VENTURE, Counter-Plaintiff,
GLF CONSTRUCTION CORPORATION and FIDELITY AND DEPOSIT COMPANY OF MARYLAND Counter-Defendants.
CHARLEINE EDWARDS HONEYWELL UNITED STATES DISTRICT JUDGE.
cause comes before the Court on GLF Construction
Corporation's Dispositive Motion for Partial Summary
Judgment and Incorporated Memorandum in Support, Doc. 68,
Defendants' Motion for Partial Summary Judgment, Doc. 72,
and GLF Construction Corporation and Fidelity and Deposit
Company of Maryland's Dispositive Motion for Summary
Judgment and Incorporated Memorandum in Support, Doc. 74. The
motions are fully briefed and ripe for adjudication. The
Court heard oral argument on the motions. Docs. 83, 91, 92,
102, 103, 105, 109. Having considered the parties'
submissions and being fully advised in the premises, the
Court will deny the motions.
Background and Facts
two Miller Act actions (Nos. 8:17-cv-1932-T-36AAS and
8:17-cv-2650-T-36TGW) stem from two separate construction
projects to repair and raise substandard levees along a
section of the Mississippi River in Plaquemines Parish,
Louisiana for the United States Army Corps of Engineers (the
“Corps”). Doc. 101 ¶¶7-8. Each case
pertains to a separate contract with the United States of
America, acting by and through the Corps, that was awarded to
Defendant/Counter-Plaintiff FEDCON Joint Venture
(“FEDCON”) for such work. Doc. 101 ¶¶7- 8.
In both cases, FEDCON entered into a written subcontract
agreement with Plaintiff/Counter-Defendant GLF Construction
Corporation (“GLF”) for a portion of the work.
Id. at ¶¶8-9. Further, in both cases,
FEDCON, as principal, and Western Surety Company
(“Western”), as surety, executed and delivered to
the Corps a payment bond in accordance with each contract
with the United States and the Miller Act, 40 U.S.C.
§§ 3131. Id. at ¶¶ 11, 13.
Similarly, pursuant to the terms of each subcontract
agreement, GLF, as principal, and Counter-Defendant Fidelity
and Deposit Company of Maryland (“F&D”), as
surety, executed and delivered to FEDCON a payment and
performance bond. Id. at ¶¶ 12, 14.
The 2.2 Project
October 18, 2013, FEDCON was awarded a contract with the
United States of America, acting by and through the Corps,
known as Resilient Features, WBV, HSDRRS, Mississippi River
Levee, Oak Point to Augusta, WBV-MRL 2.2 Plaquemines Parish,
Louisiana (the “2.2 Project”). Id. at
¶7. The 2.2 Project called for FEDCON to repair and
raise substandard levees along the section of the Mississippi
River between the cities of Oak Point and Augusta, Louisiana.
Id. Pursuant to the prime contract with the Corps,
FEDCON, as principal, and Western, as surety, executed and
delivered a payment bond to the Corps, in accordance with the
contract and the Miller Act, 40 U.S.C. §§ 3131.
Id. at ¶11. Significantly, GLF entered into a
written subcontract agreement with FEDCON on January 22, 2014
(the “2.2 Project Subcontract Agreement”).
Id. at ¶9. The 2.2 Project Subcontract
Agreement provides, in part, that it includes “the
Prime Contract between the Owner and the Contractor,
including all general, supplementary, and special conditions,
drawings, specifications, addenda and forms.”
Id. at ¶17. Significantly, the 2.2 Project
Subcontract Agreement also provides, in part, that
“others” would perform the following work:
“(C) Construction and maintenance of a temporary access
road approximately 12' wide . . . (E) Construction and
maintenance of two (2) temporary work platforms on the
protected side of the levee. The temporary work platforms
will be approximately 30' wide . . . .”
Id. at ¶19. Pursuant to FEDCON's
coordination and scheduling of its subcontractors'
performance of work, the construction of the access road, the
construction of temporary flood protection, and the degrading
of the levee and construction of the work platform was to be
performed by HDB Construction, Inc., one of FEDCON's
subcontractors. Doc. 134 ¶19. These tasks were
predecessor work activities to GLF's performance of its
work, including driving sheet pilings, driving pipe pilings,
and forming concrete T-walls (involving furnishing and
placing steel rebar, which was performed by a separate
subcontractor on each project and also served as a
predecessor activity to GLF's pouring of the T-walls).
terminated the 2.2 Project Subcontract Agreement. Doc. 101
¶27. Before such termination, on October 30, 2015,
FEDCON placed the Corps on notice of a differing site
condition at a work front, known as “Work Front Two,
” behind a Chevron plant on the 2.2 Project.
Id. at ¶20. On April 7, 2016, the Corps,
through its contracting officer, Jeffrey Falati, issued a
letter to FEDCON, which acknowledged FEDCON's claim for
the differing site conditions behind the Chevron plant.
Id. at ¶20. The Corps labeled this change as
“CIN-019.” Id. A few days later, on
April 11, 2016, FEDCON sent correspondence to GLF, informing
GLF that the Corps had recognized FEDCON's claim that a
different site condition existed behind the Chevron plant.
Id. at ¶21.
about May 23, 2016, FEDCON issue a notice of default (the
“Notice of Default”) to GLF and directed GLF to
submit a plan setting forth how it intended to proceed with
work from Monolith 076 south. Id. at ¶22. GLF
responded to the Notice of Default on May 24, 2016, and
F&D, as surety on the payment and performance bond
responded to the Notice of Default on May 26, 2016. Doc. 101
¶¶23-24. Approximately four days after issuing the
Notice of Default, on or about May 27, 2016, FEDCON issued a
notice to GLF of its termination of the 2.2 Project
Subcontract Agreement (the “Notice of
Termination”). Id. at ¶25. F&D and
GLF responded to the Notice of Termination on May 31, 2016,
and June 1, 2016, respectively. Id. at
¶¶26-27. Thereafter, on June 9, 2016, FEDCON filed
a lawsuit against both GLF and F&D in Florida's Ninth
Judicial Circuit Court, but F&D did not receive notice of
the lawsuit until June 15, 2016. Id. at ¶28. By
letter dated June 11, 2016, F&D acknowledged receipt of
documents from FEDCON and requested further documentation
from FEDCON. Docs. 74 at 4; 74-8 at 1; 91 at 7. Approximately
two years following GLF's termination, the Corps issued
CIN-019 for the 2.2 Project on May 3, 2018, which extended
the contraction completion dates by 224 calendar days. Doc.
101 ¶31. The revised contract completion date for the
2.2 Project included the 224-day extension. Id. at
¶32. Finally, GLF submitted six requests for equitable
adjustments to FEDCON for alleged additional costs incurred
by GLF on the 2.2 Project. Id. at ¶29.
December 5, 2013, FEDCON was also awarded a contract with the
United States of America, acting by and through the Corps,
known as Resilient Features, WBV, HSDRRS, Mississippi River
Levee, Augusta to Oakville (A), WBV-MRL 1.2a, Plaquemines
Parish, Louisiana (the “1.2a Project”).
Id. at ¶8. The 1.2a Project called for FEDCON
to repair and raise the substandard levees on a different
portion of the Mississippi River than the 2.2 Project, this
time between the cities of Augusta and Oakville, Louisiana.
Id. As with the 2.2 Project, FEDCON, as principal,
and Western, as surety, executed and delivered to the Corps a
payment bond for the 1.2a Project, in accordance with the
contract and the Miller Act, 40 U.S.C. §§ 3131.
Id. at ¶13. Also like the 2.2 Project, FEDCON
entered into a written subcontract agreement with GLF for
work on the 1.2a Project on April 3, 2014 (the “1.2a
Project Subcontract Agreement”). Id. at
¶10. GLF submitted a total of three requests for
equitable adjustment to FEDCON relating to alleged additional
costs GLF incurred on the 1.2a Project. Doc. 101 ¶30.
filed a lawsuit for the 2.2 Project, which includes three
counts: (1) a Miller Act Payment Bond claim pursuant to 40
U.S.C. § 3133(b)(3) against FEDCON Joint Venture
(“FEDCON”), David Bolan, JT Construction
Enterprise Corporation, and Western Surety Company
(collectively “Defendants”) for damages resulting
from FEDCON's various purported breaches of the 2.2
Project Subcontract Agreement; (2) a breach of contract claim
against FEDCON, David Boland, and JT Construction, in which
GLF alleges that FEDCON breached the 2.2 Project Subcontract
Agreement by, inter alia, improperly default
terminating the 2.2 Project Subcontract Agreement, failing to
compensate GLF for additional costs incurred, and interfering
with GLF's ability to timely perform its work; and (3) an
unjust enrichment claim, pleaded in equity and in the
alternative, against FEDCON, David Boland, and JT
Construction, in which GLF alleges that FEDCON was unjustly
enriched as a result of GLF's provision of labor,
materials, and equipment on the 2.2 Project. GLF Constr.
Corp. v. FEDCON Joint Venture, et al., No.
8:17-cv-02650-T-36TGW (M.D. Fla.) (hereinafter,
“GLF II”), Doc. 1 ¶¶37-59.
turn, FEDCON filed a counterclaim against GLF and F&D.
GLF II, Doc. 66. The counterclaim contains two
counts: one count against GLF for its alleged material breach
of the 2.2 Project Subcontract Agreement “in a number
of ways, ” including GLF's failure to maintain the
project schedule and failing and refusing to abide by
FEDCON's proper directive to recommence its work (Count
I); and one count against F&D for its alleged breach of
the payment and performance bond for failing to complete
performance of the work under the 2.2 Project Subcontract
Project Agreement (Count II). Id. at
also filed a lawsuit against Defendants regarding its work on
the 1.2a Project. Docs. 1, 38. The operative,
amended complaint for the 1.2a Project raises the same causes
of action as the complaint for the 2.2 Project: (1) a Miller
Act Bond Payment claim, pursuant to 40 U.S.C. § 3133(b),
against Defendants for damages resulting from FEDCON's
various purported breaches of the 1.2a Project Subcontract
Agreement; (2) breach of contract against FEDCON, David
Boland, and JT Construction Enterprise Corporation, in which
GLF alleges, among other things, that FEDCON breached the
1.2a Project Subcontract Agreement by impacting GLF's
ability to timely perform the work through active
interference and by failing to compensate GLF for additional
costs incurred; and (3) an unjust enrichment claim against
FEDCON, David Boland, and JT Construction Enterprise
Corporation, pleaded in equity and in the alternative, for
FEDCON's purported unjust enrichment as a result of
GLF's provision of labor, materials, and equipment for
the 1.2a Project. Doc. 38 ¶¶32-50.
filed a counterclaim against GLF and F&D, which, like the
counterclaim for the 2.2 also contains two claims: (1) one
claim of breach of contract against GLF, in which FEDCON
alleges that GLF breached the 1.2a Project Subcontract
Agreement in a number of ways, including failing to maintain
the project schedule; and (2) one claim for breach of bond
against F&D, which FEDCON alleges that F&D failed to
fulfill its obligations under the bond. Doc. 13
¶¶19-29. The Court consolidated these two cases on
May 9, 2018. Doc. 45.
judgment is appropriate when the pleadings, depositions,
answers to interrogatories, and admissions on file, with the
affidavits, show there is no genuine issue as to any material
fact and that the moving party is entitled to judgment as a
matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986). The moving party
bears the initial burden of stating the basis for its motion
and identifying those portions of the record demonstrating
the absence of genuine issues of material fact.
Celotex, 477 U.S. at 323; Hickson Corp. v. N.
Crossarm Co., 357 F.3d 1256, 1259-60 (11th Cir. 2004).
That burden can be discharged if the moving party can show
the court that there is “an absence of evidence to
support the nonmoving party's case.”
Celotex, 477 U.S. at 325.
the moving party has discharged its burden, the nonmoving
party must then designate specific facts showing that there
is a genuine issue of material fact. Id. at 324.
Issues of fact are “genuine only if a reasonable jury,
considering the evidence present, could find for the
nonmoving party, ” and a fact is “material”
if it may affect the outcome of the suit under governing law.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248-49 (1986). In determining whether a genuine issue of
material fact exists, the court must consider all the
evidence in the light most favorable to the nonmoving party.
Celotex, 477 U.S. at 323. But, a party cannot defeat
summary judgment by relying on conclusory allegations.
See Hill v. Oil Dri Corp. of Ga., 198 F. App'x.
852, 858 (11th Cir. 2006). Summary judgment should be granted
only if “the record taken as a whole could not lead a
rational trier of fact to find for the non-moving
party.” Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586 (1986). “The court need
consider only the cited materials, but it may consider other
materials in the record.” Fed.R.Civ.P. 56(c)(3).
standard of review for cross-motions for summary judgment
does not differ from the standard applied when only one party
files a motion, but simply requires a determination of
whether either of the parties deserves judgment as a matter
of law on the facts that are not disputed. Am. Bankers
Ins. Grp. v. United States, 408 F.3d 1328, 1331 (11th
Cir. 2005). The Court must consider each motion on its own
merits, resolving all reasonable inferences against the party
whose motion is under consideration. Id. The
Eleventh Circuit has explained that “[c]ross-motions
for summary judgment will not, in themselves, warrant the
court in granting summary judgment unless one of the parties
is entitled to judgment as a matter of law on facts that are
not genuinely disputed.” United States v.
Oakley, 744 F.2d 1553, 1555 (11th Cir. 1984) (quoting
Bricklayers Int'l Union, Local 15 v. Stuart
Plastering Co., 512 F.2d 1017 (5th Cir. 1975)).
Cross-motions may, however, be probative of the absence of a
factual dispute where they reflect general agreement by the
parties as to the controlling legal theories and material
facts. Id. at 1555-56.
GLF's Motion for Partial Summary Judgment
Motion for Partial Summary Judgment focuses exclusively on
the 2.2 Project. Doc. 68. GLF requests the Court to grant
summary judgment in its favor on Count I of FEDCON's
counterclaim (Breach of Contract) and on Count II of
GLF's complaint (Breach of Contract). Id. at 2.
For the reasons set forth below, this motion is due to be
Court begins by reviewing the relevant facts. Exhibit A to
the 2.2 Project Subcontract Agreement, which lists the work
to be performed by GLF, provides that GLF shall furnish all
labor, materials, and equipment necessary to provide the
required materials, manpower, and equipment to work two
independent work fronts simultaneously. Doc. 68-1 at Ex. A.
This exhibit also lists work to be performed by
“others.” Id. Two pertinent items are
included on this list of work to be performed by
. . .
(C) construction and maintenance of a temporary access road
approximately 12' wide and extending the length of the
levee, located adjacent to the temporary work platform on the
protected side of the levee.
. . .
(E) construction and maintenance of two (2) temporary work
platforms on the protected side of the levee. The temporary
work platforms will be approximately 30' wide x 600'
long, located 10' from the centerline of the steel sheet
pile, and will be removed and extended in segments for the
entire length of the levee as the work progresses.
parties stipulate that, per FEDCON's coordination and
scheduling of its subcontractors' performance of the
work, the construction of the access road, the construction
of temporary flood protection, and the degrading of the levee
and construction of the work platform, which was to be
performed by HDB Construction, Inc., were predecessor
activities to GLF's performance. Doc. 134 ¶19. A
portion of GLF's work was to be performed adjacent to a
petrochemical plant owned by Chevron, which was an area
referred to as “Work Front Two.”GLF II,
Doc. 1¶18. According to GLF, the relevant work in this
area occurred at the southern end of the 2.2 Project and
included a transition section from Monolith 072 to Monolith
075, as well as the remaining work from Monolith 076 to
Monolith 118. Id. at ¶30. GLF alleges that
the construction of Monolith 072 to Monolith 075 left twelve
feet of space between the end of the t-wall and the edge of
the work platform and access road, which was insufficient
space for GLF to remove its cranes if such became necessary
during the course of the construction. Id.
Consequently, GLF purportedly notified FEDCON that Monolith
072 to Monolith 075 would have to be constructed last so that
GLF's crane equipment would not be trapped on site.
Id. Further, the work from Monolith 076 south to the
terminus of the 2.2 Project allegedly required the
construction of the twelve-foot access road and approximately
thirty-foot work platform, as set forth above. Id.
at ¶31. GLF alleges the work from Monolith 076 to the
end of the 2.2 Project was placed on hold while GLF
“awaited a plan from FEDCON as to how the access road
and work platform were going to be engineered, designed[, ]
and constructed by FEDCON.” Id.
previously mentioned, the parties stipulate that FEDCON
placed the Corps on notice of a different site condition at
the portion of Work Front Two behind the Chevron plant on
October 30, 2015. Doc. 101 ¶19. This letter from FEDCON
to the Corps explained:
During investigations into the layout of the work platform
and access road it has been determined that the Chevron Fence
(“fence”) and Chevron Water Pipeline
(“pipeline”) encroach into the Temporary Work
Area Easement (“easement”) beginning at
approximately Wall Baseline Station 41 to 45 and then
again at approximately from Wall Baseline Station 49 past
The fence is identified on Sheet Identification
(“Sheet”) G-04 as F2 and the pipeline is
identified as P4. The locations are depicted on Sheet C-102
and are indicated to be outside of the easement. However,
utilizing the Construction Easement coordinates as listed on
Sheet G-04 the easement was staked out and verified that the
fence and pipeline conflict with the easement.
. . .
The access road will be required to be constructed on the
flood side of the temporary flood protection and will be
subject to flooding. It will require additional fill to
stabilize the surface and will require more frequent
maintenance. Furthermore, a secondary access to the work
platform will be required to allow for maintenance of the
cranes, demobilization of the cranes, and delivery of
reinforcing steel to the work front. Our subcontractors have
provided notification that they will seek compensation for
Doc. 68-4 at 1-2.
a letter from GLF to FEDCON on February 12, 2016, FEDCON
wrote to GLF on February 17, 2016, stating that resuming the
work at Work Front Two did not require access through
Chevron's plant and did not involve any of the issues
that GLF had raised relating to access through Chevron's
plant. FEDCON asserted that GLF did not have a
“reasonable basis” not to “recommence the
work at [Work Front Two]” and accordingly provided GLF
with seventy-two hours' notice and curative period to
cure its purported default, pursuant to Paragraph 8.A of the
2.2 Project Subcontract Agreement, by mobilizing and
recommencing the work at Work Front Two. Doc. 92-1 at Ex.
A-2. Similarly, in response to another letter from GLF,
FEDCON pushed back on GLF's assertion that there was no
access to facilitate the remaining work at Work Front Two,
stating that the temporary access road “extends to the
work front and will be advanced as the work front moves
forward” because “the supports for Chevron's
pipe bridges limits the available width to place the work
platform and temporary access road.” Doc. 92-1 at Ex.
A-3. FEDCON once again provided GLF with the opportunity to
cure its purported default by confirming in writing, within
seventy-two hours of GLF's receipt of the letter, that it
intended to recommence and diligently prosecute the work at
Work Front Two. Id.
parties stipulate that the Corps, through Jeffrey Falati as
the contracting officer, issued a letter to FEDCON on April
7, 2016, which acknowledged FEDCON's claim for a
differing site condition behind the Chevron plant and labeled
this changed as “CIN-019.” Doc. 101 ¶20. The
[This letter is in] [r]eference [to] yesterday's meeting
held at the [Corps] District office discussing the protected
side construction easement and its relative location to
Chevron's fence and utilities. The Government
acknowledges that the field surveyed locations of the
protected side construction easement from approximate wall
line station 45 to approximate wall line station 62
differ from the layout shown on contract drawing C-102.
You are requested to submit a proposal detailing the cost and
time impacts associated with this drawing discrepancy. In
accordance with DFARS 252.243-7001, Pricing of Contract
Modifications, your proposal should be broken down in
sufficient detail for the analysis of the elements of labor,
equipment, materials, supplies, and include appropriate
markups, any contract time changes and impacts as a result of
this change. If a subcontractor's quotation is used, it
must also be sufficiently detailed for analysis of the
aforementioned elements. This change is assigned CIN-019; any
further correspondence relative thereto should make reference
to this number. Please furnish your proposal for this
modification to this office within two weeks from the date of
Doc. 68-6 at 2. A subsequent e-mail from Jeffrey Falati to
FEDCON and Boland clarified that the affected stations were
“~42 to ~45 and ~50 to ~62” instead.
Docs. 68-7 at 5. The e-mail further stated that “[a]ny
potential cost or time impacts will be negotiated
accordingly, but work on site shall not cease.”
subsequently sent a letter to GLF on April 11, 2016, which
specifically requested GLF to furnish FEDCON with GLF's
proposal for CIN-019, as directed by the Corps' letter
and e-mail above, by April 19, 2016. Doc. 68-7 at 1; 92-1 at
Ex. A-4. The letter also included the access plan for the
work from Monolith 072 southwards and specifically stated
that deliveries of steel material from Monolith 072 to
approximately Monolith 085 would “be by way of the
temporary access road leading to the work front.”
Id. FEDCON instructed GLF that its letter
constituted a notice to proceed and directed GLF “to
proceed promptly with the accomplishment of the changed work
by recommencing the work of [Work Front Two] at Monolith 072
in order to ensure the work between Baseline Station 480
and 487, that is required to performed outside of
hurricane season, is completed” before the commencement
of hurricane season on June 1, 2016. Id.
exchange of correspondence between GLF and FEDCON followed.
GLF generally refused to perform the requisite work at Work
Front Two, while FEDCON generally instructed GLF to resume
such work. For example, in a letter dated April 20, 2016,
FEDCON asserts that there was “absolutely no
justifiable reason for GLF not to have proceeded with the
work as directed” in FEDCON's April 11, 2016
letter. Doc. 92-1 at Ex. A-5. FEDCON further claimed that
none of the reasons in GLF's prior letter, to which
FEDCON's letter was directed, served as valid reasons why
GLF could not resume work at Monolith 072 and, even if such
reasons were valid, issues would not arise until the work
advanced to Monolith 086, which would not occur for at least
six weeks. Id. FEDCON further instructed that the
plan presented in the April 11, 2016 letter was being
implemented because it was the most “cost
effective” and had the “least impactful
solution.” Id. FEDCON advised that “[a]n
equitable adjustment will be made and change order will be
issued in accordance with Paragraph 10 of the [2.2 Project]
Subcontract Agreement for any reasonable cost and time
impacts that GLF incurs as a result of [the Corps']
acknowledgement of the differing site condition and resulting
change to work.” Id. FEDCON concludes the
letter by providing GLF with seventy-two-hours' written
notice and curative period per Paragraph 8.A of the 2.2
Project Subcontract Agreement to “cure the default by
mobilizing and recommencing the work” at Work Front
letter from FEDCON, dated May 16, 2016, countered GLF's
contentions that GLF's equipment would be
“trapped” in an area following completion of the
work and that GLF's performance of the work was
predicated on the availability of 600-foot increments of work
platform, which FEDCON had not provided. Doc. 92-1 at Ex.
A-7. In response to these contentions, FEDCON asserted that
there would be sufficient width available for GLF to remove
its equipment after Monolith 072 was constructed and the work
platform at Monolith 072 was “approximately 600 feet in
length.” Id. Nonetheless, FEDCON advised that
GLF would have to commence its work at Monolith 076, which
was allegedly the first monolith south of the area where work
could be performed only during months outside of hurricane
season, because “GLF did not commence the work at
Monolith 072 as previously directed and because it will
undoubtedly be unable to recommence the work prior to the
beginning of the hurricane season.” Id. FEDCON
enclosed a change order for the changed work, entitled
“Subcontract Change Order Number 15, ” with the
letter, although FEDCON clearly viewed such change order as
neither necessary nor required. Id.
issued the Notice of Default to GLF approximately seven days
later, on or about May 23, 2016. Doc. 101 ¶22. The
Notice of Default directed GLF to provide a plan describing
its intention to proceed with the work from Monolith 076 to
the southern end of the 2.2 Project. Doc. 68-8 at 1. The
Notice of Default also reiterated FEDCON's position that
GLF's failure to recommence the work at Monolith 072 had
resulted in the work between Monoliths 072 and 075 being
delayed until the conclusion of hurricane season on November
30, 2016, which resulted in a six-month delay to the schedule
for the 2.2 Project. Id. FEDCON warned that it would
declare the 2.2 Project Subcontract Agreement to be
materially breached by GLF and terminated pursuant to
Paragraph 8.A, unless GLF cured its default within
seventy-two hours by providing a written plan
“demonstrating  and committing to” the
recommencement of the work at Work Front Two from Monolith
076 southwards. Id.
alleges that, following the issuance of the Notice of
Default, it instructed FEDCON that preparing the plan for the
work was FEDCON's responsibility and GLF was ready,
willing, and able to undertake the work. GLF II,
Doc. 1 ¶33. On or about May 27, 2016, FEDCON issued its
notice of termination of the 2.2 Project Subcontract
Agreement (the “Notice of Termination”). Doc. 101
¶25. In relevant part, the Notice of Termination
Despite repeated directives from FEDCON, GLF has failed and
refused to recommence the work south of Monolith 071.
GLF's refusal to recommence the work as directed by
FEDCON is a material breach of the Subcontract Agreement and
has resulted in significant delay to the Project Schedule.
Your letter of 26 May 2016 clearly confirms that, despite the
claim of being “ready, willing and able” to
proceed with the work, GLF has no intention of doing so
absent FECON's acquiescence to GLF's demand to be
immediately paid for its yet undetermined and unsupported
costs of addressing the changed work conditions due to the
differing site condition. The terms of the Subcontract
Agreement do not mandate that FEDCON submit to such an
unwarranted demand as a condition to GLF's recommencement
of the work.
Accordingly, it is clear that GLF's position that it will
not recommence work without the issuance of a change order
that contains a price acceptable to GLF is a further material
breach of the Subcontract Agreement.
Doc. 68-9 at 1.
crux of GLF's argument in its motion is that there are no
genuine issues of material fact as to these claims that could
preclude entry of summary judgment in favor of GLF on these
claims, as FEDCON's termination of the 2.2 Project
Subcontract Agreement was wrongful. Id. at 8.
Specifically, GLF asserts that FEDCON's termination of
the 2.2 Project Subcontract Agreement based on GLF's
alleged failure to maintain the project schedule and failure
and refusal to abide by proper directives to recommence
performance was improper because (i) GLF's requests for
time extensions were pending at the time of termination; and
(ii) FEDCON received a 224-day time extension as a result of
the differing site condition and thus owed a commensurate
time extension to GLF. Id.
contends that it was owed an extension of time commensurate
with the Corps' provision of an extension of time to
FEDCON due to the differing site conditions at Work Front Two
at the time FEDCON terminated the 2.2 Project Subcontract
Agreement. Id. at 13. GLF further contends it had
requests for time extensions and additional compensation
pending at the time of termination and the Corps had
acknowledged the existence of the differing site condition,
which subsequently led to the 224-day extension under
CIN-019. Id. Thus, according to GLF, FEDCON
terminated the 2.2 Project Subcontract Agreement for
purported lack of progress and delay in schedule months
before the expiration of the 2.2 Project Subcontract
Agreement based on the Corps' extension of time and when
GLF's requests for time extensions were pending and had
not been resolved or responded to. Id. In sum, GLF
argues, the pending nature of the request for an extension of
time due to the access impediments arising from different
site conditions at the time of FEDCON's termination
renders such termination improper. Id. at 16.
response, FEDCON asserts that it terminated the 2.2 Project
Subcontract Agreement because GLF “willfully refus[ed]
to comply with its obligations under the contract
documents” and held “its work hostage unless
FEDCON agreed to pay GLF excess payments to perform its
agreed-upon work, ” rather than “merely falling
behind on its work.” Doc. 92 at 10. According to
FEDCON, it had initially notified GLF of the differing site
condition at Work Front Two and directed GLF to proceed with
the work at Monolith 074, which it had stopped in July of
2015, on February 29, 2016. Id. at 4-5. GLF had
apparently refused to abide by this directive. Id.
at 5. The Corps acknowledged the differing site condition at
Workfront 2 on April 7, 2016. Id. FEDCON asserts
that it issued written directives to GLF to proceed with the
work south of Monolith 071 on April 20, 2016, May 2, 2016,
May 16, 2016, and May 23, 2016. Id. at 6. FEDCON
maintains that it terminated the 2.2 Project Subcontract
Agreement after GLF failed to respond with a written
confirmation that it would remobilize, but it subsequently
provided GLF another opportunity to supply its written
commitment to proceed with the work, yet GLF purportedly
failed to respond in accordance with the last demand and
FEDCON's directive. Id. at 6. FEDCON asserts
that it developed an alternative access plan to the relevant
construction site, which utilized an available road located
on the Chevron plant. Id. FEDCON purportedly
provided this plan to GLF pursuant to Paragraphs 10.A and
10.B of the 2.2 Project Subcontract Agreement, in conjunction
with a directive to recommence work south of Monolith 071
(thereafter modified to south of Monolith 076), but GLF
refused to ...