MARGARET M. SWEENEY, Judge.
Plaintiff K-Con Building Systems, Inc. filed three suits in this court concerning its contracts with the United States Coast Guard ("Coast Guard") for the design and construction of prefabricated metal buildings in Elizabeth City, North Carolina, St. Petersburg, Florida, and Port Huron, Michigan. After the court issued summary judgment rulings in each case and held trial in the Elizabeth City case, the parties engaged in settlement discussions. Those discussions revealed several issues that required resolution prior to any settlement. Accordingly, the parties have filed the relevant motions in all three cases.
In this case, which concerns the building in St. Petersburg, plaintiff moves for partial summary judgment on the issue of liquidated damages, and defendant cross-moves for summary judgment on all of plaintiff's remaining claims. For the reasons set forth below, the court denies both motions.
In April 2001, the United States General Services Administration ("GSA") awarded plaintiff a Federal Supply Schedule contract for Prefabricated Structures and Outdoor Smoking Shelters.
The contract award triggered deadlines related to construction bonds, project schedules, project meetings, the commencement of work, and the initial design submission. On October 15, 2003, after approving plaintiff's bonds, the Coast Guard permitted plaintiff to begin work at the job site. Shortly thereafter, on November 4, 2003, the Coast Guard conducted a delayed postaward kickoff meeting with plaintiff. During the meeting, the participants discussed a variety of issues related to the design documents that plaintiff would provide to the Coast Guard. In addition, plaintiff informed the Coast Guard that its geotechnical firm had begun its site investigation, and that it had hired both an architect and a firm to produce the site work and civil work designs.
Pursuant to the contract specifications, plaintiff was required to present to the Coast Guard a schedule that reflected plaintiff's submission of the design in three phases (a "50% design," a "100% design," and a "final design"). In the schedule it submitted to the Coast Guard on November 7, 2003, plaintiff indicated that it had begun working, to an unspecified extent, on the 50% design on October 16, 2003-the day it likely received the Coast Guard's notice to proceed-and planned to submit it to the Coast Guard around November 14, 2003. In that same schedule, plaintiff indicated that it anticipated beginning construction on December 29, 2003, erecting the building beginning on March 22, 2004, and completing the project around May 27, 2004-two months before the contract completion date.
Plaintiff did not meet its self-imposed November 14, 2003 deadline for submitting the 50% design to the Coast Guard. Instead, it appears that plaintiff submitted the 50% design shortly after December 10, 2003. In a January 6, 2004 letter, the Coast Guard noted several issues with the design that required plaintiff's attention before it could conduct its official review. These issues included electronic files that did not comply with computer-aided-design requirements, incomplete drawing sets, systems missing from the drawings, and missing calculations for the foundation design. To address the Coast Guard's comments, plaintiff was required to have its designer redesign the foundation, which entailed making new calculations and amending its drawings.
Plaintiff resubmitted a complete 50% design on February 2, 2004, and its foundation calculations on February 3, 2004. The Coast Guard approved the design three days later. Plaintiff then submitted its 100% design on February 25, 2004. In a cover letter to its review comments, the Coast Guard noted that it "consider[ed] the design, especially the Structural design, incomplete" and requested that plaintiff make corrections.
Pursuant to the contract specifications, plaintiff could not begin construction until the Coast Guard approved the final design. That approval occurred some time before April 6, 2004, when plaintiff and the Coast Guard conducted a preconstruction conference. Plaintiff ultimately began mobilizing for construction on May 1, 2004, with actual construction beginning during the week of May 10, 2004.
Upon the commencement of construction, plaintiff began work on the building's foundation. According to an as-built schedule included with defendant's expert's report, plaintiff performed its initial work on the foundation from May 13 to May 24, 2004; poured the footings from May 24 to June 1, 2004; poured the walls from June 1 to June 11, 2004; and completed the foundation from June 11 to June 26, 2004.
During a June 15, 2004 progress meeting, plaintiff and the Coast Guard discussed several issues related to constructing the foundation, pouring the slab, and erecting the building.
In addition, the Coast Guard addressed plaintiff's plan to alter its sequence of construction. Initially, as reflected on the structural drawing included with its final design, plaintiff planned to erect the building on the foundation after pouring the slab. But, due to a concrete shortage arising from the large amount of construction occurring in central Florida, plaintiff sought to reverse the sequence and pour the slab after erecting the building. Plaintiff indicated that many contractors in the area were being forced "to implement [nontraditional] construction sequences" due to the concrete shortage. Indeed, the Coast Guard acknowledged the effect the concrete shortage would have on the project, remarking that the project might not be completed by the July 26, 2004 contract completion date because the lead time for getting concrete on site was three weeks, and no loads could be placed on the poured concrete until it set, which typically took seven days or longer. Nevertheless, it concluded that the building could not be erected without the slab in place, and therefore advised plaintiff that it was required to pour the slab before erecting the building.
Further complicating matters, the Coast Guard also informed plaintiff during the progress meeting that there was no space available on the job site to store the building before plaintiff was ready to erect it, and that plaintiff would have one week in which to store and erect the building once it arrived on site. Plaintiff had originally scheduled three weeks for this process.
Two days after the progress meeting, on June 17, 2004, plaintiff requested by letter an extension of the contract completion date to August 26, 2004, to accommodate the concrete shortage, explaining that it could not obtain the quantity of concrete it needed until July 9, 2004. Plaintiff retracted this request one week later.
The concrete shortage was not the only issue facing plaintiff during this period of time; plaintiff was also encountering unexpected ground water during its work on the job site. Pursuant to the contract specifications, plaintiff was to assume "[f]or bidding purposes" that the "depth of the groundwater table [was] four feet below grade or deeper."
Then, in a June 21, 2004 letter, Cathy Broussard, the contracting officer, advised plaintiff that it "should have known" that ground water existed because it was identified in the July 25, 2003 geotechnical report provided to plaintiff as part of the proposal request package.
Despite these two responses from the Coast Guard, plaintiff resubmitted its request for a contract modification on June 22, 2004,
The bid documents under Section 1.6 Geotechnical Design, subsection 1.6.3 state "depth of groundwater is four feet below grade or deeper.["] Utilizing this information we did not anticipate utilizing any dewatering or well pointing system. Had we done so the bid price would have increased as much as Twenty or Thirty Thousand Dollars.
The same holds true after our geotech report was completed.
In addition to the monetary compensation it previously sought, plaintiff requested a ten-day contract extension. Mr. Allen responded to plaintiff's request that same day, informing plaintiff via electronic mail that the Coast Guard disagreed with plaintiff's assessment of the situation.
Mr. Allen stated his agreement that dewatering and well points were unnecessary and, therefore, plaintiff was not incurring additional costs.
Approximately one week later, on July 1, 2004, plaintiff sent the Coast Guard a progress schedule via electronic mail. As noted in the accompanying message, the schedule reflected a planned completion date of August 26, 2004, which was one month after the contract completion date. The Coast Guard acknowledged plaintiff's submission and further noted that the new, delayed completion date would result in the assessment of liquidated damages. Plaintiff responded that it would "not accept responsibility for the delay" because the delay resulted from the Coast Guard's modification of plaintiff's "construction method." It specifically referred to the request for a contract modification that it had submitted earlier in the day. In that request, plaintiff sought an additional $5,100 and ten days for the removal of ground water it encountered when installing the storm drainage pipe. Plaintiff also sought an additional $16,500 and thirty days for not being permitted to erect the building before pouring the slab, not being permitted to store and erect the building over the course of three weeks, and its inability to schedule concrete with any certainty due to the concrete shortage. Thus, in total, plaintiff sought an additional $24,100 and forty days for performing work under the contract.
As noted previously, plaintiff had informed the Coast Guard on June 19, 2004, that it had scheduled a delivery of concrete for July 9, 2004. However, on July 6, 2004, the Coast Guard informed plaintiff that it could not proceed with pouring the slab because the "workmanship and quality of the footings, concrete work, [and] anchor bolts" were unacceptable. Later that day, Luther Ramsey, plaintiff's project manager, responded:
Indeed, in a November 2013 affidavit, Mr. Ramsey reiterated that the "alleged defective work" noted by the Coast Guard "could be corrected or completed as the work progressed, was insignificant, and did not require resubmittal and approval of any drawings."
Communications between plaintiff and the Coast Guard regarding the concrete work continued. On July 8, 2004, the Coast Guard advised plaintiff that it would not authorize any concrete pours until it had "received and approved" plaintiff's "deviations for the slab and concrete work."
On July 26, 2004, plaintiff submitted to the Coast Guard another request to modify the contract, seeking an additional seventy-one days and $34,300.
Third, it sought an additional fourteen days for the concrete placement delay, explaining that it was forced to reschedule the concrete placement because the Coast Guard's inspector, who was "aware of the first concrete placement on 15 June 2004[,] did not notify [it] until three weeks later and 48 hours prior to a known scheduled critical task that the work was unacceptable." Finally, it requested an additional five days and $2,200 for encountering previously unknown conditions during the excavation of utilities.
The Coast Guard denied all but plaintiff's last request in a July 28, 2004 letter signed by Ms. Broussard.
With respect to plaintiff's inability to pour the slab on July 9, 2004, Ms. Broussard noted that the Coast Guard expressed concern about the quality of the foundation during the June 15, 2004 site visit and that two concrete trucks were rejected on June 11, 2004, because they sat too long waiting for plaintiff to be ready for the pour. Finally, Ms. Broussard requested additional information regarding the previously unknown water pipes plaintiff encountered during utility excavation.
Plaintiff, in turn, responded to the Coast Guard in an August 9, 2004 letter.
Plaintiff also provided Ms. Broussard with the following "`new' information" regarding its dewatering claim: "To meet the negotiated pricing K-Con did not include continuous de-watering of the entire site. Understanding [the Coast Guard] would recognize a tremendous savings in de-watering only when conditions required it. [sic]" In addition, plaintiff provided information related to the unexpected water pipes it encountered during construction.
Ms. Broussard responded to this latest letter from plaintiff on August 11, 2004.
Ms. Broussard also addressed plaintiff's "new" information concerning its dewatering claim:
Finally, Ms. Broussard granted plaintiff's request for additional compensation related to the unexpected water pipes. The parties executed a contract modification on August 23, 2004, increasing the contract price by $4,500 (to a total of $539,430), but leaving the contract completion date unchanged.
While plaintiff was pursuing its contract modification requests with the Coast Guard, work was continuing on the job site. The building was delivered on July 14, 2004, and plaintiff began to erect the building on August 9, 2004.
Unfortunately for both plaintiff and the Coast Guard, construction was hindered by four hurricanes that affected central Florida during the summer of 2004. The first hurricane-Hurricane Charley-affected the job site in August 2004. The parties executed a contract modification on August 18, 2004, extending the contract completion date by fifteen days-to August 10, 2004-for "unusually high rainfall during the month of July and Hurricane Charley" and releasing the government from "from any and all liability under the contract for further equitable adjustments attributable to such facts [or] circumstances giving rise to the proposal for adjustment . . . ."
As of September 1, 2004, plaintiff anticipated completing the project by September 17, 2004. However, plaintiff's plans were stymied by two additional hurricanes-Frances and Ivan. According to Mr. Allen (footnote added):
This narrative is consistent with plaintiff's daily construction reports, which reflect that work was not being performed due to Hurricane Frances; that Hurricane Frances caused "minor flooding in trenches" on the job site; that work was affected by Hurricane Ivan; and that it rained during portions of September 8, September 9, and September 16, 2004.
In addition to documenting the effects of Hurricanes Frances and Ivan, plaintiff's daily construction reports for September 2004 reflected the difficulties plaintiff was experiencing with excessive ground water at the job site.
On September 22, 2004, as a result of these difficulties, plaintiff submitted to the Coast Guard another request for a contract modification for dewatering,
The Coast Guard denied plaintiff's request on September 27, 2004,
A fourth hurricane-Hurricane Jeanne-affected work on the job site in late September 2004, but the record before the court lacks any evidence that plaintiff sought any compensation from the Coast Guard related to it.
On November 4, 2004, Mr. Allen scheduled a final inspection of the project for November 10, 2004. Another inspection occurred on December 1, 2004, at which time the Coast Guard accepted beneficial occupancy of the building.
On February 3, 2005, the Coast Guard assessed liquidated damages against plaintiff by unilaterally amending the contract to reduce the contract price. Before that date, the contract completion date had been extended, for reasons unrelated to the issues in the present motions, from August 27, 2004, to September 2, 2004. Based on its December 1, 2004 acceptance of the building, the Coast Guard assessed ninety days of liquidated damages, which, at $564 per day, totaled $50,760. It therefore reduced the contract price to $488,670, depriving plaintiff of the $52,260 that it would have been paid had the Coast Guard not assessed liquidated damages.
Plaintiff submitted a claim to Ms. Broussard on July 28, 2005, seeking the payment of $51,260 that it alleges was wrongfully withheld by the Coast Guard as liquidated damages, plus interest. Specifically, plaintiff contended:
It requested a final decision on its claim, but also noted that "the assessment of liquidated damages is a claim by the government." Ms. Broussard issued her decision on plaintiff's claim on August 22, 2005. After acknowledging plaintiff's request for the remission of liquidated damages and noting that plaintiff had not completed work by the September 2, 2004 contract completion date, Ms. Broussard determined that plaintiff had not provided any information demonstrating why it was "not responsible for the delay," and that the Coast Guard was "not aware of any event or occurrence that would excuse [plaintiff's] late performance." She therefore denied the claim.
Less than one month later, plaintiff filed a complaint in the United States Court of Federal Claims ("Court of Federal Claims") challenging Ms. Broussard's decision. It alleged that during contract performance, "the Coast Guard changed and modified the contract in[,] among other ways, by failing to properly review and approve drawings [it] submitted . . ., and by directing [it] to perform additional work that was not required by the Contract." It also alleged that "[t]he Coast Guard failed to extend the Contract as a result of its actions, or inactions, and as required by the Contract because of the changes to the work directed by the Coast Guard." For these reasons, plaintiff sought the remission of $50,760 in liquidated damages retained by the Coast Guard.
On December 15, 2006, plaintiff submitted a second claim to Ms. Broussard, seeking payment of $34,300 and an eighty-eight-day contract extension for additional work performed at the Coast Guard's direction, indicating that its claim was based on the contentions set forth in its July 26, 2004 letter and other, unidentified "correspondence during the contract." In her January 16, 2007 letter denying plaintiff's claims, Ms. Broussard addressed each contention set forth in plaintiff's July 26, 2004 letter, but did not address any contentions that may have been set forth in other correspondence. Shortly thereafter, plaintiff filed an unopposed motion to amend its complaint to add the allegations it presented to Ms. Broussard in its December 15, 2006 claim letter. Specifically, plaintiff sought to amend its complaint to assert a claim for a $34,300 increase in the contract price and an eighty-eight-day contract extension, alleging that despite Ms. Broussard's rejection of its claim, it was "entitled to additional compensation and an extension to the contract as a result of changes directed by the Coast Guard." The court granted plaintiff's unopposed motion and plaintiff thereafter filed its amended complaint.
After discovery, plaintiff moved for summary judgment on two issues: whether the contract's liquidated damages rate constituted a penalty and whether it was entitled to the remission of some of the retained liquidated damages due to excusable delays. On the latter issue, plaintiff argued that it was entitled to the remission of sixty-seven days of liquidated damages: thirty-two days for the Coast Guard's delay in convening the postaward kickoff meeting; eleven days for being required to change the design of the building's foundation; and twenty-four days to compensate for the impact of Hurricanes Charley, Frances, Ivan, and Jeanne. Defendant cross-moved for summary judgment on these same issues, contending that the liquidated damages rate was not a penalty and that plaintiff was not entitled to the remission of sixty-seven days of liquidated damages for the reasons plaintiff cited. Defendant also moved for summary judgment with respect to what it referred to as the remaining twenty-three days of liquidated damages that plaintiff sought to recover.
After reviewing the briefs and evidence submitted in support of the cross-motions for summary judgment, the court invited supplemental briefs from the parties concerning whether, as required by the Contract Disputes Act of 1978 ("CDA"), 41 U.S.C. §§ 601-613 (2000),
In its November 30, 2012 Opinion and Order, the court first addressed the jurisdictional issues. It held that it possessed jurisdiction over plaintiff's claim for the remission of liquidated damages because "plaintiff set forth a valid CDA claim for the remission of liquidated damages in its July 28, 2005 claim letter, the basis of which is found in the formal requests for time extensions that it submitted to the contracting officer during contract performance."
As noted above, this is one of three breach-of-contract cases before the court involving plaintiff and the Coast Guard. The court issued a summary judgment ruling in the Elizabeth City case in January 2011,
Both parties move for summary judgment pursuant to RCFC 56. Summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. RCFC 56(a);
The moving party bears the initial burden of demonstrating the absence of any genuine issue of material fact.
The court must view the inferences to be drawn from the underlying facts in the light most favorable to the nonmoving party.
In its motion for partial summary judgment, plaintiff contends that defendant's failure to file a counterclaim asserting its right to liquidated damages requires the court to grant it summary judgment on its claim for the remission of liquidated damages. Plaintiff is mistaken.
As noted above, the Coast Guard asserted a right to liquidated damages for plaintiff's failure to complete the project by the contract completion date and then assessed liquidated damages against plaintiff by unilaterally modifying the contract to reduce the total contract price. Plaintiff subsequently submitted a claim to the contracting officer seeking the remission of the liquidated damages in the Coast Guard's possession, which the contracting officer denied. In such circumstances, there is both a government claim against plaintiff for liquidated damages and a claim by plaintiff against the government for the remission of retained liquidated damages.
There is no question that the only way that plaintiff could recover the liquidated damages retained by the Coast Guard was by appealing one or both of the contracting officer's final decisions.
That defendant was not required to assert a counterclaim for liquidated damages is entirely consistent with RCFC 13, contrary to plaintiff's contention. RCFC 13 addresses, in part, compulsory counterclaims, and provides:
RCFC 13(a)(1) (emphasis added). At the time defendant served its answer, it did not have an outstanding claim against plaintiff; the Coast Guard's claim had already been resolved to its satisfaction, as reflected by its possession of all of the funds to which it claimed entitlement. Therefore, defendant was not required to assert a counterclaim.
Moreover, even if defendant was required to assert a counterclaim for liquidated damages, plaintiff could not obtain the relief it seeks-judgment on its claim for the remission of retained liquidated damages. Rather, the consequence of a defendant's failure to assert a compulsory counterclaim is that the defendant "waive[s] its right to bring the counterclaim and is forever barred from asserting that claim in future
In its cross-motion for summary judgment, defendant addresses all of the claims asserted by plaintiff that it believes remain viable after the court's November 30, 2012 Opinion and Order. From defendant's point of view, the surviving claims are (1) plaintiff's claim of excusable delay asserted in its July 28, 2005 claim letter and more specifically described in its earlier formal requests for time extensions submitted to the Coast Guard, and (2) plaintiff's request for a $32,100 increase in the contract price asserted in its December 15, 2006 claim letter and premised on its July 26, 2004 letter to the Coast Guard.
And, defendant avers that plaintiff's request for a contract price increase includes:
Based on the record before the court, defendant's characterization of plaintiff's remaining claims is accurate.
In the first of its remaining claims, plaintiff seeks a twelve-day time extension and $8,000 for being unable to begin construction until the Coast Guard's approval of a 100% design. Defendant articulates several reasons why plaintiff cannot recover for this delay. Two of the reasons are premised on plaintiff's contention, in its July 26, 2008 letter, that it typically is permitted to proceed with construction upon the approval of a 35% design, and that the proposal it submitted to the Coast Guard was consistent with this typical practice. Specifically, defendant contends that plaintiff's project schedules never included the submission of a 35% design and that the contract did not contain a 35% design requirement. As plaintiff asserts, defendant's focus on its reference to a 35% design is misplaced. In its July 26, 2004 letter, plaintiff did not argue that it should have been permitted to submit a 35% design; rather, it contended that it should have been able to begin construction before the Coast Guard approved a 100% design.
This last point bears repeating: the claim that plaintiff presented to Ms. Broussard was that the Coast Guard prevented it from beginning construction prior to the approval of a 100% design. However, plaintiff has refined its claim and now argues, in its response to defendant's cross-motion for summary judgment, that the Coast Guard delayed the design process by not complying with the review procedures and deadlines set forth in the contract specifications. This argument is appreciably different from the claim it presented to Ms. Broussard, and there is no evidence in the record before the court that plaintiff formally requested a contract modification from the Coast Guard based on the Coast Guard's purported noncompliance with the submittal review procedures described in the contract. Because plaintiff's current position was not presented to the Coast Guard, as required under the CDA, the court must disregard it.
Plaintiff is therefore left with the claim it actually presented in its July 26, 2008 letter. Defendant argues that this claim is not viable because plaintiff failed to notify the Coast Guard of the purported delay in a timely manner. The court rejects this argument. The notice requirement contained in the contract's changes and suspension of work clauses,
Defendant's sole remaining argument pertains to the critical path of contract performance. To recover for an excusable delay, the alleged cause of the delay "must delay the overall contract completion;
In addition to seeking a contract modification for its inability to begin construction during the design phase of the project, plaintiff seeks additional time and money for delays associated with the area-wide concrete shortage and its placement of concrete at the job site. In particular, plaintiff seeks an up-to-one-month time extension and up to $19,000 related to the concrete shortage, and a fourteen-day time extension related to concrete placement. The facts relevant to these claims are intertwined; plaintiff contends that the Coast Guard delayed advising it about unacceptable concrete work despite being aware that the concrete shortage constrained plaintiff's ability to schedule concrete pours on short notice. Due to the inextricable nature of the claims, the court addresses them together.
Defendant argues that plaintiff cannot recover for any of the purported concrete-related delays because (1) plaintiff was not ready to pour the slab on June 1, 2004, when the concrete was scheduled to arrive on the job site; (2) the Coast Guard, on July 8, 2004, identified problems with the existing concrete work, and therefore prevented plaintiff from proceeding with pouring the slab until the problems were resolved; (3) plaintiff did not reschedule the concrete pour for the slab until July 16, 2004; and (4) there is no evidence that the concrete shortage affected the critical path of performance. In response, plaintiff asserts that the Coast Guard's failure to advise it regarding the problems with the existing concrete work for three weeks forced it to reschedule the concrete delivery for the slab from July 9, 2004, to July 16, 2004, which, due to the concrete shortage, was the earliest date for which sufficient concrete was available. Plaintiff further contends that all of the concrete issues were on the critical path, noting that its expert failed to address the concrete shortage only because he addressed a separate, concurrent delay on the critical path, i.e., the purported construction sequence delay.
A review of the record submitted by the parties reveals that there is conflicting evidence regarding whether the Coast Guard delayed plaintiff's completion of the foundation by not identifying its concerns regarding plaintiff's concrete work until three weeks after that work had been in place, even though it was aware of the area-wide concrete shortage. Thus, there is a genuine issue of material fact for trial.
Plaintiff's final two remaining claims concern its dewatering activities. Plaintiff seeks a ten-day time extension and $5,100 for removing the ground water it encountered while installing a storm drainage pipe in June 2004, and a seven-day time extension for removing the ground water it encountered while installing a trench drain sump in September 2004. Defendant offers several reasons why plaintiff is not entitled to recover on its dewatering claims. The court addresses these reasons in turn.
First, defendant argues that plaintiff cannot obtain a contract modification under either claim because all of the dewatering performed by plaintiff was foreseeable. As defendant notes, federal procurement law provides that the government cannot assess liquidated damages against a contractor for a failure to timely complete work under a contract if "[t]he delay in completing the work arises from unforeseeable causes," such as acts of the government, that are "beyond the control and without the fault or negligence of the Contractor." FAR 52.249-10(b)(1). In support of its contention that the ground water encountered by plaintiff was a foreseeable condition, defendant relies chiefly on the contents of the Coast Guard's correspondence with plaintiff noting that plaintiff should have been aware of the existence of ground water at a certain depth because it was identified in the July 25, 2003 geotechnical report provided to plaintiff before plaintiff submitted its proposal. Problematically, however, the correspondence contains conflicting information regarding the precise depth identified in the July 25, 2003 geotechnical report: some correspondence cites a depth of three feet,
In a second, related argument, defendant contends that plaintiff cannot recover for dewatering specific areas because it foresaw the need to remove water from the job site from the outset. Defendant relies upon unspecified documents in the record in support of its contention. The court's review of the relevant documents in the record-i.e., those pertaining to plaintiff's dewatering claims-reveals that it was plaintiff's position that it had reviewed the documents provided by the Coast Guard in conjunction with the Coast Guard's request for a proposal, ascertained that those documents noted the existence of ground water at a depth of four feet below grade, determined that its work would be performed above that depth, and therefore prepared its proposal with the assumption that dewatering would be unnecessary. In the absence of citations to documents in the record that contradict this interpretation, the court cannot accept defendant's argument.
Third, defendant contends, with respect to the September 2004 dewatering claim, that plaintiff cannot obtain a time extension because its claim is based on excessive rain, and plaintiff has already been compensated for the unusually high rainfall that occurred in August 2004. Defendant accurately quotes plaintiff's statement from its September 22, 2004 claim letter that it encountered ground water because excessive rain caused the water table to rise. However, the court disagrees that the evidence in the record demonstrates that the September 21, 2004 contract modification that extended the contract completion date by sixteen days for "unusually high rainfall during the month of August and Hurricane[]s Frances and Ivan" compensated plaintiff for dewatering. First, the contract modification, by its express terms, only covered excessive rainfall during the month of August and, indeed, only rainfall that occurred before August 18, 2004, the date the parties executed the contract modification. Thus, it is possible that the "unusually high rainfall" described in the contract modification is not related to the rising of the water table that affected plaintiff's installation of the trench drain sump in mid-September 2004. Second, the contract modification does not expressly indicate that the delays associated with Hurricanes Frances and Ivan were due to "excessive" rain, i.e., rain that caused total rainfall for September to exceed the threshold for compensation. Indeed, the evidence in the record indicates that at least some of the impact of the two hurricanes related to demobilization and mobilization activities. See Pl.'s App. 301; Def.'s Supp'l App. 99-100, 104-05, 112. Based on the evidence in the record, the court cannot conclude that plaintiff released its September 2004 dewatering claim by executing the September 21, 2004 contract modification.
Fourth, defendant notes that neither party's expert placed the September 2004 dewatering claim on the critical path of performance. Plaintiff acknowledges this fact, but asserts that because its expert stated that he did not place the water and sewer work on the critical path due to the existence of other, concurrent, critical delays, the trench drain sump work should be treated as if it were on the critical path. Plaintiff's expert specifically provided:
Pl.'s App. 413. Although it is unclear to the court whether the installation of the trench drain sump was part of the water and sewer work referenced by plaintiff's expert, his statement is sufficient to raise a factual issue regarding whether the dewatering necessary to install the trench drain sump was on the critical path.
Fifth, defendant implies that plaintiff cannot obtain a ten-day extension of time under its June 2004 dewatering claim because its expert only assigned one day of critical delay to the claim. As plaintiff notes, defendant's expert assigned two days of critical delay to this claim.
Finally, defendant asserts that plaintiff's claim for $5,100 is not supported by plaintiff's job cost ledger. Defendant correctly notes that plaintiff must establish that it incurred the claimed expenses in order to recover them. However, defendant did not submit any evidence in support of its assertion that the job cost ledger did not support plaintiff's claim, whether that evidence consists of the portion of the job cost ledger that should have included the expenses plaintiff incurred for dewatering or an affidavit describing the lack of evidence supporting plaintiff's claim for expenses.
In sum, the court concludes that there are genuine issues of material fact with respect to both of plaintiff's dewatering claims.
As set forth above, the court
