Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

United States v. Fedcon Joint Venture

United States District Court, M.D. Florida, Tampa Division

October 18, 2019

UNITED STATES OF AMERICA for the use and benefit of GLF CONSTRUCTION CORPORATION, a Florida profit corporation, Plaintiff,
v.
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,
v.
GLF CONSTRUCTION CORPORATION and FIDELITY AND DEPOSIT COMPANY OF MARYLAND Counter-Defendants.

          ORDER

          CHARLEINE EDWARDS HONEYWELL UNITED STATES DISTRICT JUDGE.

         This 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.

         I. INTRODUCTION

         A. Background and Facts[1]

         These 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.[2] 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.

         i. The 2.2 Project

         On 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). Id.

         FEDCON 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.

         On or 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.

         ii. 1.2a Project

         On 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.

         B. The Lawsuits

         GLF 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.

         In 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 ¶¶28-39.

         GLF 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.

         FEDCON 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.[3] Doc. 13 ¶¶19-29. The Court consolidated these two cases on May 9, 2018. Doc. 45.

         II. LEGAL STANDARD

         Summary 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.

         When 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).

         The 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.

         III. ANALYSIS

         A. GLF's Motion for Partial Summary Judgment

         GLF's 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 denied.

         The 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 “others”:

. . .
(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.

Id.

         The 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.”[4]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.[5] 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.

         As 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 62.
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 these impacts.

Doc. 68-4 at 1-2.

         Following 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.[6] 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.”[7] 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.

         The 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 letter stated:

[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 this letter.

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.” Id.

         FEDCON 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.

         A fiery 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 Two. Id.

         Another 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.

         FEDCON 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.

         GLF 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 provided:

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.

         The 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.

         GLF 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.

         In 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.