Flatiron-Lane v. Case Atlantic Co. (121 F. Supp. 3d 515, 2015)

MEMORANDUM OPINION AND ORDER

THOMAS D. SCHROEDER, District Judge. .

This case arises out of a dispute between the general contractor, Flatiron-Lane, a Joint Venture (“FLJV”), and Case Atlantic Company (“Case”), its subcontractor, over the construction of the foundation for a highway bridge. The subcontractor’s work took significantly longer than initially expected, and the parties dispute who is to blame for the delay.

A bench trial on the merits of all claims and counterclaims was conducted from April 6, 2015, through May 5, 2015. ■ FLJV presented nine witnesses; Case presented five. At the close of FLJVs case-in-chief, Case moved, for judgment pursuant to Rule 52(c) of the Federal Rules of Civil Procedure, though the court declined to enter judgment at that time. Following trial, the parties submitted proposed findings of fact and conclusions of law. (Docs. 135, 136.) The case is ready for resolution.

I. FINDINGS OF FACT

Pursuant to Rule 52(a) of the Federal Rules of Civil Procedure, the court enters the 'following findings of fact based upon an evaluation of the evidence, including the credibility of witnesses, and the inferences that the court has found reasonable to be drawn therefrom. To the extent any factual statement is contained in the conclusions of law, it is deemed a finding of fact as well.

FLJV’s Pursuit

1. In 2009, the North Carolina Department of Transportation (“NCDOT”) began formally soliciting design-build proposals to replace two bridges spanning the Yadkin River near the border of Davidson and Rowan Counties (the ‘Yadkin Project” or “Project”). The longer bridge, referred to as Bridge 2, comprised part of Interstate 85; the relatively shorter bridge, referred to as Bridge 3, was part of United States Highways 29 and 70.

2. A design-build project is one in which the owner, here NCDOT, hires a general contractor both to design and construct the project. By contrast, some construction projects are bidrbuild projects (or design-bid-build projects), where the design is already complete when the owner hires a contractor to construct the project. Both Bridges 2 and 3 were part of a larger design-build project. .

3. Flatiron Construction and Lane Construction pursued the Yadkin Project as a joint venture, with 60%' and 40% stakes, respectively. As- noted, the joint venture is collectively referred to as “FLJV.”

, 4, FLJVs pursuit team was composed of FLJVs employees, as well as several entities with whom it subcontracted, STV/ Ralph Whitehead Associates, Inc. (“STV’), a professional engineering firm, was part of the pursuit team, serving as the Project’s head designer. Froehling and Robertson, Inc. (“F & R”), a geotechnical firm, was also part of the pursuit team, assisting with the design of the bridges as well as inspections and geotechnical engineering work. Preliminary design decisions-began being made during the pursuit phase.

- 5. The Yadkin Project contemplated the drilling of shafts into the ground— known as “drilled shafts,” “drilled piers,” and “caissons” — into which concrete would be poured. These drilled shafts would serve as the foundations for-Bridges 2 and 3. Very generally, .the shafts are excavated by drilling with large drill rigs inside of cylindrical steel casing, either permanent or temporary, .to protect the shaft from cave-ins during excavation. Once excavation is complete, the void is filled with rebar cages, and concrete is poured into the shaft up to a few feet above the surface level. Once this concrete cures, concrete vertical columns are formed on top of the piers. Each set of four drilled piers is known as a “bent.” Horizontal concrete caps are built on top of the columns for each bent of shafts. Girders are placed on top of,the caps, connecting bent-to-bent, upon which a concrete driving .surface is eventually poured. . :

6. FLJV originally planned to do much of the drilled shaft work itself. While pursuing the prime contract, it sought estimates from drilled shaft companies for the cost of the excavation work only.

7. In design-build projects, the design is often not finalized when contracts are awarded or even when construction commences, and the' design is subject to change throughout the construction phase.' For this reason, FLJV sought estimates based on “unit price’s.” As relevant here, for example, FLJV sought estimates on how much a drilled shaft contractor would charge per linear foot of drilling, with the final “units” or “quantities” — i.e;, the number of linear feet each shaft is drilled into the ground — to be determined once the drilled shaft is constructed.

8. In March 2010, FLJV sought and received an estimate from Case, a drilled shaft company, operating primarily in the southeastern United States. Case is a wholly owned subsidiary of Case Foundation, which is itself owned by the international Keller Group of companies. Nigel Osborn, who has served as its' president since the late 1990s, led a group of Case employees from the bidding of the Yadkin Project through Case’s ultimate execution of a subcontract with FLJV.

9. In April 2010, NCDOT awarded the Yadkin Projpct to FLJV, and the two executed the prime contract on May 24, 2010. (Ex.201.)

Subcontract Negotiations

10. Theodore “Ted” Kirk participated in FLJV’s pursuit of the Yadkin Project, serving as its design build project manager. Once FLJV was awarded the prime contract, Kirk solicited several prospective drilled shaft contractors, including Case, to provide FLJV with an estimate for a fuller scope of work; that- is, not just drilling the shafts, but also providing and setting the casing and pouring the concrete. In general, drilled shaft contractors like Case prefer to do this expanded scope of shaft and pier work themselves.

11. Case began submitting several proposals to FLJV, providing updated unit price schedules for the fuller scope of work. On June 16, 2010, Case submitted a proposal offering to do the work in fourteen weeks, excluding holidays. (Ex. 227.).

12. FLJV and Case met to discuss this proposal on June 17, 2010, in FLJV’s Morrisville, North Carolina office. Kirk and another employee represented FLJV; and Andy Buck, Case’s estimator and later project manager, attended with Larry Blough, Case’s vice president of operations. The men discussed the details of what Case had included and excluded from its scope in the most recent proposal.

13. They also discussed Case’s- experience performing drilled shaft work in North Carolina. Buck and Blough represented that Case was experienced with the type of subsurface conditions at the.Project site and that Case was familiar with NCDOT’s specifications and requirements for drilled shaft contractors, as well as the standard practices and procedures employed in the Piedmont area of North Carolina in which the Project was located. In particular, Kirk gave Buck part of NCDOT’s Drilled Pier Inspection Manual, a publicly available document, which explains the standards and specifications NCDOT’s drilled shaft inspectors apply when approving drilled shafts. Buck represented that he was already aware of the manual through Case’s other projects in North Carolina, including a recent project in Boone, North Carolina.

14. Also, Kirk was concerned whether Case could realistically complete the job in fourteen weeks, as Buck had proposed. Buck explained to Kirk how he expected Case would reach its anticipated production levels. Buck convinced Kirk that Case could do the work in fourteen to sixteen weeks.

15. FLJV had similar meetings with other potential drilled shaft contractors. Case continued submitting revised proposals. In its proposals to and discussions with FLJV, Case indicated its intended means and methods of constructing the drilled shafts. Those intended means and methods had two basic components.

16. First, Case intended to push oversized temporary steel casing into the ground for each drilled shaft. • Case would excavate the soil inside the casing to the lowest point on the designs — also known as the “tip elevation.” Then Case would install a permanent inner steel casing into the shaft until rock or “competent material” (usually weathered rock or very dense soils) was reached. The permanent casing would then be filled with rebar and concrete. The outer temporary casing could then be removed. Because the outer casing was several inches wider in diameter than the inner casing, its removal would result in a slight void — termed an “annular space” — between the permanent inner casing and the soils previously resting against the outer casing.

17. Second, Case also intended, as part of its means and methods, to push its permanent casing down to rock or material competent enough to support the use of air tools. This method benefits from the force of the rock at the bottom of the shaft pushing up on the bridge, a force known as axial or end-bearing resistance. Yet, before the time Case signed the Subcontract, it had received preliminary designs from FLJV indicating that some of the shafts would not, in fact, reach all the way down to rock. (See, e.g., Exs. 384, 1012.) That is, the designs showed shafts that had an uncased zone and a tip elevation that did not reach all the way to rock.

18. Case’s use of outer temporary casing and pushing permanent casing down to rock or competent material reflects appropriate methods to be employed in the Piedmont region of North Carolina, but are not typical, certainly not in dry shafts (i.e., not drilled into water). Rather, designers tend to employ a temporary inner casing method. When constructing shafts in this way, drillers typically use permanent casing that is larger in diameter than the shaft design. Temporary casing is then telescoped inside this permanent casing and twisted into the ground until the desired elevation is reached. Then, as the wet concrete is poured into the shaft, the temporary casing is slowly raised up and out of the shaft. This ultimately results in a concrete shaft that is surrounded by steel casing on the upper part, and a lower part where the concrete comes into direct contact with the surrounding soils. This method uses much less permanent steel casing (thereby decreasing costs) and has the benefit of creating an extra force supporting the bridge structure — the “skin friction” between the uncased soil and surface of the concrete column, which permits an overall shorter (and cheaper) shaft. This method has the potential drawback, however, of allowing boulders and other materials to infiltrate the wet concrete column as the temporary casing is removed, which can result in a compromised shaft (as identified by negative test results on the quality of the shaft) and possibly necessitating a costly repair. The method can also potentially cause some difficulty extracting the temporary casing from the shaft, though some risk of extraction problems occurs with the use of both inner and outer temporary casing. Despite this risk, this method fully conforms to NCDOT specifications, is the method that NCDOT employees ordinarily expect drillers to use, and could have been used on this Project.

19.However, Case’s means and methods — the use of temporary outer casing and taking permanent casing to rock or competent material — is permitted by NCDOT and its specifications' so long as the annular space is filled with grout or some other material sufficient to provide lateral resistance in the drilled pier and the end-bearing resistance is sufficient to support the bridge. ■

20. Case’s bid for the drilled shaft work was the lowest that FLJV received. On July 16, 2010, Kirk sent a letter of intent (Ex. 245) notifying Case that it was being awarded the drilled shaft subcontract for the Yadkin Project and accepting Case’s described scope of work in its most recent proposal (Ex. 229). The letter authorized Case to begin planning its work and procuring materials, noting that a formal subcontract would be executed shortly thereafter. Case was awarded the work in large part because it proposed drilling the shafts at the lowest price and in the quickest time.

21. Thereafter, negotiations on a formal agreement lingered for about five months because Case had many provisions it sought to have‘included in the subcontract. Case also did not want to begin ordering materials or mobilizing to the job site until a formal subcontract was executed.

22. Throughout these negotiations (and certainly by the time the subcontract was signed), FLJV knew that Case intended, to use oversized temporary casing'and intended to accommodate it. (See, e.g., Ex. 1407 (showing FLJV template designs accommodating Case’s use of outer temporary casing); Ex. 1059 (Drilled Shaft Construction Sequence Plan, jointly prepared by Case and FLJV, showing use of outer temporary casing).) FLJV also knew or had reason to know that Case desired to construct the shafts by twisting permanent casing down to rock or material competent enough to support the use of air tools. (See, e.g., Ex. 200 at 37 (Attachment Q.)

23. At no point before Case actually began drilling on the Project site does it appear that FLJV’s designers knew of either of these two means and methods by which Case intended to construct the drilled shafts. FLJV never communicated this information to the designers, and Case was not permitted to communicate with the designers directly. The designers designed the drilled shafts to accommodate construction methods that are typical in the Piedmont region, not to accommodate Case’s atypical methods.

24. To accommodate Case’s means and methods, no design change would have been needed concerning Case’s use of outer temporary casing, so long as the annular space was properly filled. However, in order for Case to take permanent casing down to rock or competent material, the designers would have needed to know about this construction method in order tq properly design the shafts. With advance notice, the designers could have accommodated this construction method.

25. During the subcontract negotiations, Kirk and Osborn met at the Yadkin Project job site in early December 2010. Kirk showed awareness that Case intended to take permanent casing down to rock or hard subsurface material.

26. On December 8, 2010, FLJV and Case executed a formal subcontract (the “Subcontract”), which bore an effective date of November 11, 2010. (Ex. 200.) Subject to various inclusions and exclusions, the Subcontract stated that Case would “[p]rovide all supervision, labor, tools, equipment and material to perform drilled shafts” on the Yadkin Project. (Id. at 2.)

27. Case’s payment for the work would be at the unit prices set out on Attachment C of the Subcontract. (Id. at 2, 37.) Attachment C contains estimated quantities for the work, with the actual pay quantities to be determined once the work is complete.

28. Attachment A of the Subcontract contains various provisions specifically negotiated by Case. The negotiation of these provisions is what, in part, caused the negotiations to linger for so long.

29. Paragraph 5 of Attachment A provides, “Subcontractor excludes caisson design, the determination of bearing capacity of soil or rock strata, or any other soil evaluation services.” (Id. at 7.)

30. Paragraph 11 of Attachment A provides, “Personnel work platforms, templates. for water locations, and all water support is by Contractor.” (Id.)

31. Paragraph 12 of Attachment A provides, “Subcontractor methods are based upon drilling inside seated steel casings (into rock or competent material that will support the use of air core barrels, chisels and/or air down hole hammers) using water slurry, (all water provided by Contractor).” (Id.)

32. Paragraph 13 of Attachment A provides, in part, “Subcontractor-not responsible for adverse CSL results due to action that is outside of his control. Subcontractor is responsible for adverse CSL results that are caused by Subcontractor[’]s negligent workmanship.” (Id.)

33. The parties agreed that Case’s work would be'insured by pérformance and payment bonds. (Id. ¶ 15; id. at 28.)

34. Paragraph 20 of Attachment A provides, in part, “Subcontractor good faith schedule includes sixteen (16) production weeks for the complete bid scope of work excluding holidays.” (Id. at 7.)

35. Attachment A contains -various inclusions to Case’s scope of work, including the following:

a. “Supply labor and drilling equipment to install all caissons [drilled shafts] for bridge structures.” (Id. at 8.) ' -

b. “Place full length reinforcing steel cages, CSL tubes and spacers supplied, tied, adequately braced, rigged for lifting and delivered to each hole by others.” (Id.)

36. Attachment A also contains various exclusions from Case’s scope of work, including the following:

a. “Provide, tie and deliver to each hole full length steel reinforcing cages .,. adequately braced and rigged for lifting. (Subcontractor will place cages.)” (Id. at 9.)

b. “Any chipping of caisson concrete for cap preparation, removal of permanent casing from shaft if required ' and any demolition/removal of Trial or Load Test Shafts.” (Id.)

c. “Any geotechnical tésting (e.g.SPT) performed prior to', during or after Subcontractor’s site operations.” (Id.)

d. “Support Crane: Contractor to provide Subcontractor with an insured, operated, maintained, fueled and suitably sized and configured service crane to handle casing, rebar and any other materials, and to assist Subcontractor’s operations as and when needed.” (Id. at 10.)

37. -Attachment B contains FLJV’s standard terms and provisions, such as FLJV’s procedure for changing Case’s scope of work or terminating Case. In the event of a conflict between provisions of Attachments A and B, Attachment A prevails. (Id. at 6.)

37. Article 1 of Attachment B contains a “flow-down” clause, incorporating at least some parts of the prime contract into the Subcontract: “Subcontractor assumes toward Contractor all obligations that Contractor assumes toward Owner, insofar as applicable to the Work to be performed under this Subcontract.” (Id. at 14 ¶ 1.6.)

38. Attachment B also includes several provisions for making changes to Case’s scope of work, including the following:

a. “Contractor may at any time by written order of Contractor’s authorized representative, and without notice to Subcontractor’s sureties, make changes in, additions to and deletions from the Work, and Subcontractor shall promptly proceed with the Work so changed. The Subcontract Price shall be equitably adjusted on account of any changes in the Work, subject to any applicable provision of the Contract.” (Id. at 17 ¶ 3.1.)

b. “Any claim for an adjustment in the Subcontract Price or Time must be made in writing within (5) calendar days from the date changes are ordered or from the date Subcontractor has knowledge of facts giving rise to the event for which claim is being made; otherwise, Subcontractor releases and waives any rights to assert a claim against Contractor.” (Id. ¶ 3.2.).

40..Article 6 of Attachment B designates that time is of the essence in the drilled-shaft work: “Time is of the essence in this Subcontract. Subcontractor agrees to perform the Work within the time specified on Contractor’s Schedule, or within such time extensions as may be granted, and Subcontractor shall be liable for any damages to Contractor caused by the Subcontractor’s failure to perform the Work within such time.” (Id. at 18.).

41. Article 21 of Attachment B provides a mechanism for FLJV to terminate Case for its convenience:

a. “Contractor, upon two (2) days written notice, may terminate this Subcontract, in whole or in part, if Contractor considers termination to be in its best interest.” (Id. at 27 ¶ 21.1.)

b. “Subcontractor shall be compensated for costs of all Work it has performed, including a reasonable profit thereon, in accordance with the terms and conditions for termination for convenience in the Contract. Under no circumstances is Subcontractor entitled to anticipatory, unearned profits or consequential or other damages as a result of a termination or partial termination for convenience. Payment to Subcontractor, as determined in accordance with the provisions of the Contract, shall constitute Subcontractor’s exclusive remedy for’ termination under this Article.” (Id. ¶ 21.2.).

42. Attachment B designated that the Subcontract would be governed by North Carolina law. (Id. at 35 ¶ 39.4 (“This Subcontract shall be governed by and construed in accordance with the substantive law of the State where the Project is located without regard to the conflict of law rules of such State.”).)

Construction of the Drilled Shafts

43. In January 2011, Case mobilized to the Yadkin Project work site to begin construction on Bridge 2.

44. Bridge 2, although referred to as such, is structurally two separate bridges, one each for northbound and southbound traffic. FLJV originally prioritized completing the northbound bridge before the southbound bridge, which would allow NCDOT to close the old bridge being replaced and to divert traffic going both directions over the hew northbound bridge. Once the northbound bridge was built, FLJV and its subcontractors would finish the southbound bridge, and then Bridge 3.

45. FLJV directed Case to prioritize the northbound part of Bridge 2. The plan was for Case to construct the drilled1 shafts moving from south to north. FLJV first had to construct the trestle — a temporary-work bridge across the Yadkin River running between and parallel to the two bridges (or what would become the two bridges) comprising Bridge 2. The trestle would support the construction teams and their equipment. Once trestle construction began, which was' initially delayed, Case was able to start on the drilled shafts.. Once Case completed each bent of piers, FLJV intended to start setting the columns and caps on top, followed by the girders running from bent to bent.

46. FLJVs employee in charge of the actual project construction was Adam Mathews, the construction project manager. He was aided by several others, including Adrian Price, who was FLJVs field engineer over the drilled shafts, and Jim Barton, FLJVs construction manager responsible for overall construction of structures on the Project.

47. For Case, the employee in charge was Andy Buck, who had helped estimate and pursue the drilled shaft work. However, Buck was stationed at Case’s headquarters in Florida, rather than on the work site. Buck got most of his information about the goings-on of the Project from Terry Miller, Case’s head superintendent who oversaw Case’s day-to-day operations at the work site. Miller was instrumental in. forming Case’s construction plans for the Project. When he did so, however, he did not consult any of NCDOT’s drilled shaft specifications, despite their incorporation into the Subcontract. . •

Outer Temporary Casing & Vibro Hammer

48.On the first day of Case’s construction of the drilled shafts, on or about February 1, 2011, an NCDOT employee shut down the drilling operations because Case was twisting outer temporary casing below the “scour line” — a theoretical line above which the designers assume all soils could wash away (e.g., from rain or flooding) and thus fail to provide skin friction. The scour line is normally not important when using inner temporary casing. But it is critical when using outer temporary casing because engineers must assume that any unfilled annular space created by the removal of the outer temporary casing will provide little or no lateral resistance. If outer temporary easing is pushed beyond the scour line, the drilled shaft will lack the lateral resistance the designer had assumed would help support the bridge.

49 NCDOT told Case that it would not be permitted to push outer temporary casing beneath the scour line unless it filled the annular space with grout or similar material.

50. In fact, Dean Hardister, the western regional operations engineer for NCDOT, and the NCDOT employee primanly in charge of the Yadkin Project, had previously warned Miller about the design complications of using outer temporary casing. (Doc. 126 at 109-10.) That earlier warning occurred in a previous project Case had done in Boone, North Carolina.

51. Rather than to continue using its intended method by filling the annular space, Case considered the cost of using a vibratory (or “vibro”) hammer that would vibrate the permanent casing into the ground without the use of any temporary casing at all. Case decidéd that using a vibro hammer would be cheaper than filling the annular space.

52. Case had proposed letting the “cuttings” or “spoils” from the drilling, which happen to fall into the annular space, to suffice for filling the annular space. This proposal was rejected by ÑCDOT and FLJV’s engineers as unsound. No credible evidence rebutted this conclusion.

53. Case did not bring a vibro hammer to the job site, though FLJV did have one available. Buck told FLJV that Case could either use FLJV’s vibro hammer or rent one for $3,738 per week. (Ex. 204 at D00790.) By contrast, grouting the annular space would have cost Case around $120,000. (Doc. 128 at 27.) FLJV permitted Case to use its vibro hammer. (See, e.g., Ex. 253.) The vibro hammer helped Case complete its work and appears to have ultimately been less expensive than filling the annular space that would have resulted from the use of outer temporary casing. (See, e.g., id, at 1-2; Ex. 726 (noting that Buck and Miller believed the vibro hammer “will probably benefit [Case] bottom line, since.more casing will be used which will mean extra depth”).)

54. Case was ultimately able to use outer temporary casing on 26 of the 140 shafts for Bridge 2 where the casing was not twisted beyond the scour line.

55. The relationship between the two parties became adversarial at least as early as this first day of construction, when Case ran into obstacles to performing the work with its intended means and methods. The- relationship grew even more rancorous as the Project progressed, with the companies clearly preparing for litigation while construction of the drilled shafts was still ongoing.

Change in Shaft Diameter for Bents 15 Through 18

56. In February 2011, FLJV informed Case that it was changing the diameter of the shafts on bents 15 through 18 from 54 inches to 60 inches.. At the . time the parties executed the Subcontract, it was anticipated that Bridge 2 would have 54-inch permanent casing, and Bridge 3 would have 60-inch permanent casing.

57. This was an evolved position. Earlier in March 2010, before the Subcontract was- executed, FLJV’s preliminary plans had reflected that some bents on- Bridge 2 would have 60-inch shafts.- (See Ex. 384.) Based on these plans, Case submitted proposals in April, June, and July 2010 reflecting these plans, acknowledging that 60-inch permanent casing was called for on both Bridges 2 and 3, but quoting the same unit price for the work regardless of the bridge incorporating the 60-inch casing. (See Exs. 1026, 227, 229.)' At some point after July, the preliminary designs changed, calling for only 54-inch shafts on Bridge 2.

58. However, by November 16, 2010, the designers were considering using 60-inch shafts for bents 15 through 18 on Bridge 2. (Ex; 448.) FLJV’s Jim Barton told Buck about this possible change and asked him what the price impact would be. (Id.) Buck did not respond until February 9, 2011, when he said the price impact would be just the price for 60-inch shafts noted in Attachment C of the Subcontract (as contemplated for use on Bridge 3). (Ex. 475.) On February 18, 2011, Mathews sent Buck an email showing the “current thinking” on shaft details, highlighting that the shaft diameters for bents 15 through 18 would be 60 inches. (Éx. 478.) On February 22, 2011, Mathews confirmed to Buck that he should proceed to order 60-inch casing for these bents.’ (Ex. 479.) On March 28,2011, FLJV released to Case detailed design plans for'bent 15, calling for 60-inch casing. (Ex. 489.1.) On April 19, 2011, Case told its easing fabricator to begin producing 60-inch casings (Ex. 715), which are made by rolling sheets of steel into cylindrical columns of the desired diameter.

59. On May 13, .2011, Case objected (for the first time) to the change in shaft diameter on bents 15 through 18, claiming that this change warranted a price increase because the unit prices for 60-inch shafts on Bridge 3 could not be substituted for shafts on Bridge 2. (Ex. 262.) FLJV refused to pay more for the work than called for at unit prices. Case objected, but constructed 60-inch shafts oh bents 15 through 18, tracking its total - costs on those shafts on a force account basis. Based on its force account records, Case seeks $1,931,671.35 for this change in shaft sizes.

Support Crane

60. Several other disputes arósé' between FLJV and Case during the Project. One prolonged dispute involved FLJVs support crane. Under the Subcontract, FLJV was obligated to provide k large crane to support Case’s operations.

61. Miller directed FLJV to move relatively small equipment with FLJVs smaller transportation equipment, like forklifts. Miller threatened FLJV that, unless FLJV helped move Case’s equipment with its smaller equipment, he would order that the support crane be used to pick up this equipment. The support crane was a far larger piece of machinery than necessary to move small equipment and materials. The movement of the support crane is also highly disruptive to all other work on the trestle.

62. FLJV complied with the threat, using its forklifts and like machinery to move things for Case when the support crane was unnecessarily large and disruptive for the job.

63. As the drilled shaft work began to take longer than FLJV anticipated, the cost to FLJV of providing the support crane was greater than expected.

Template Disputes

64. Under the Subcontract, FLJV had an obligation to provide Case “templates for water locations.” (Ex, 200 at 7 ¶ 11.) Templates are forms to allow the driller to identify the correct location for each drilled shaft and to maintain the proper placement of casing and drilling equipment during operations. Templates help guide the driller on where the shafts should go, and ensure that the shafts are properly spaced out.

65'. Templates are .unnecessary for drilled shafts on land because simpler tools, like stakes and offsets, can be placed to clearly show the driller where to drill the shafts. Templates are necessary, or at least very helpful, for shafts in water because they are anchored at the correct locations.

66. Each template was for an entire bent of four shafts, is identical, and is capable of being used on any bent for Bridge 2. Once a bent is complete, Case would use the support crane to move the template for that bent to the next bent. FLJV created four templates for Case’s use, meaning that at any given time Case had sixteen possible shafts on which' it could be working. Because Case only had two drill rigs, it could only work on two shafts at any given time.

67. Miller directed FLJV to provide templates for the land shafts in addition to those for the river shafts. FLJV provided templates for the land shafts as requested.

68. FLJV was also responsible for moving the templates from bent to bent with its support crane. Case complained that the templates were not being moved in a timely manner. However, the credible evidence showed that FLJV did move the templates in a timely manner, without causing Case any unreasonable delay. (See, e.g., Ex. 543.) This conclusion is bolstered by the testimony of Price, who the court finds to be a credible and reliable witness. Moreover, Case could have built templates for itself but chose not to do so. (Doc. 131 at 193-95.)

Chipping Concrete

69. When Case’s employees poured the concrete into the drilled shafts,, they would sometimes pour it slightly above the .elevation specified by the plans. This created a slight excess of concrete that had to be removed before FLJV could install, the columns on top of the drilled shafts. Thus, FLJV had to “chip” the concrete down to the correct level before it could begin its work.

Case’s Unauthorized Work

70. Anytime anyone wished to construct the Project differently from the design reflected in the plan, a change in the plan had to be requested of the designers through a “request for information” (“RFI”). An unusually large number of RFIs were issued on the Project. Most of the RFIs requested information for multiple shafts. In total, 90 RFIs were issued on the Project, covering 138 of the 140 shafts. (Ex. 751.)

71. Case- desired and intended to put its permanent casing down to rock or material competent enough to support the use of air tools. Case insisted that its method was best from a structural and engineering standpoint to ensure proper support for the bridge and to avoid the possibility of a collapse. The designers originally designed the piers so that 75% of them tipped in rock competent enough for the use of air tools. (Ex. 751.) ■ -

72. Because Case insisted on using its method, many shafts had to be redesigned to accommodate the deeper elevation of the permanent casing. Forty-five of 90 RFIs were issued because of Case’s decision to lower the permanent casing. Miller insisted on taking the permanent casing to a depth that he was “comfortable” with, regardless of the elevation shown on the plans. (Doc. 128 at 17, 27-31; Doc. 134 at 9-10.) No employee or subcontractor of FLJV, or of NCDOT, ever told Case not to continue drilling past the permanent casing design elevations. (See, e.g., Doc. 134 at 56.) These redesigns contributed to delaying the drilled shaft work past the 16-week “good faith schedule” in the .Subcontract. Case contends that the delay in getting approval of RFIs delayed its ability to perform timely. However, Case has exaggerated the impact of the RFIs because, despite Miller’s contentions, Case would continue drilling on a shaft even while an RFI for the shaft had been sent to the engineers and was awaiting their response. (See, e.g., Ex. 541.2.)

73. Initially in the Project, FLJV accommodated Case’s method, approving the redesign and paying Case for the extra permanent casing lengths. Under the Subcontract, Case charged one rate per linear foot of drilling and another rate per linear foot of permanent casing installed. Case’s method resulted in it being paid more than it would have had it not insisted on taking permanent casing to rock or competent material; Case preferred this method at least in part for that reason. (See, e.g., Ex. 726 (noting that Buck and Miller preferred methods that “will probably benefit [Case’s] bottom' line, since more casing will be used which will mean extra depth”).) The designers, however, designed Bridge 2 in keeping with typical Piedmont practices, which seek to minimize permanent casing and maximize temporary casing. (See, e.g., Ex. 687 at 4.)

74. Later in the Project, on August 15, 2012, FLJV advised Case that it had decided to stop paying for extending the length of the shafts beyond those shown on the plans; specifically, FLJV refused to pay Case for extra linear feet of drilling and permanent casing. (Ex. 1752.)

75. NCDOT does not typically pay contractors for lowering the shaft depth beyond that shown on the design plans when done only to accommodate the driller’s preferred methods. (Doc. 126 at 111.) In contrast, NCDOT does pay for extra units of drilling and casing when the necessary subsurface condition is lower than expected by the designers. (Id. at 112.).

76. ’ Case continued to require that the shafts be redesigned, lowering the elevation to rock or competent material. For these shafts, FLJV paid Case only for the quantities reflected on the plans, rather than for the as-built quantities.

77. Had FLJV paid Case for the unauthorized work, it would have paid $388,223.31 based on the unit prices.

Additional Rebar

78. Rebar, or reinforcing steel cages, were inserted into the fully drilled shafts before the concrete was poured in.

79. Because Case increased the shaft lengths to accommodate its chosen means and methods, this, in turn, required! more rebar to fill the shaft and stabilize the concrete. FLJV seeks $257,544 for the additional rebar it had to provide as a result.

Variable Subsurface Conditions

80.- The subsurface conditions at the Yadkin Project were highly variable. However, they were not significantly more variable than in other areas of the Piedmont region.

81. When FLJV was pursuing the Project, it was- provided soil borings from NCDOT. These borings showed the subsurface materials to be highly variable.

82. After being .awarded the Project, FLJV employed F & R to perform additional' borings at the Project site. FLJV performed the minimum required number of borings to meet NCDOT specifications. These additional borings confirmed that the subsurface materials were highly variable over short distances.

83. FLJV considered performing borings at every single drilled shaft location; The borings were only a couple inches in diameter, as opposed to the drilled shafts, which were 54 and 60 inches in diameter. Thus, there was no assurance that the borings would be representative of the entire area of the drilled shaft, even if taken from every shaft location. FLJV ultimately determined that the known costs of such an extensive number of borings outweighed any potential benefits.

84. By the time Case signed the Subcontract, Case knew or had reason to know that the subsurface conditions were highly variable because FLJV had shared all of its, F & R’s, and NCDOT’s borings,

85. When Case was excavating the shafts, the materials it encountered at the design tip elevation would sometimes differ from what the designers had originally expected. This was because the designer designed the shafts based on their best judgment and sometimes relied on a boring many feet away as the best representation of' the material' in the shaft area.

86. When this occurred, Case would sometimes stop drilling while the designers determined whether this difference would affect the design; if so, the designers would proceed to redesign the shaft.

87. This redesign' process contributed to the overall delay of Case’s performance of its work under the Subcontract. Because the designers knew that the subsurface conditions were highly variable, they could have developed a set of acceptance criteria, allowing the field engineer to determine in the field whether Case should continue drilling until it hit a certain kind of subsurface material or some other elevation. The. designers did not create such a contingency plan. The failure to do so contributed to the delay in. the. Project.

88. This failure was exacerbated by the fact, that the drilled shafts were designed in pairs, so that if one shaft required a possible redesign, so-did its twin. Designing shafts in pairs is not common.

89. Ultimately, about 11% of the drilled piers had to be redesigned due ■ to the conditions encountered at the plan depths. (Ex. 751.)

90. Later in the Project, Case hired another company, S & ME, Inc., to conduct borings at every drilled shaft location. Case sent the results to FLJV, which passed them along to the designers. Case seeks reimbursement of $144,380.25 for this work.

91. On average, the S & ME borings were not more accurate than the borings upon which FLJV had relied when originally designing the shafts. (See Exs. Í841, 1842.) ‘ These additional borings were not necessary for the construction or design of the drilled shafts. (Doc. 126 at 131.)

92. Case complained when doing the work that it was encountering unexpectedly .large numbers of boulders. Boulders are typically considered large pieces of rock, more than a foot in diameter, which can exacerbate excavation. The credible evidence at trial, however, based on the testimony and demeanor of the witnesses and the exhibits admitted into evidence, was that Case did not in fact encounter an unexpectedly large number of boulders on Bridge 2 sufficient to account for any mar terial delay in the drilled shaft work or any reasonably unexpected costs to Case.

Problems with Bent 11

93. Case drilled the shaft and poured the concrete for shaft 1 on northbound bent 11 (“11NB1”). When the quality of the concrete was tested as contemplated by the Subcontract using crosshole sonic logging (“CSL”) in July 2011, by Case’s CSL subcontractor GRL Engineers, Inc., the. results presented two significant potential problems — known as “anomalies.” (See Ex. 747.) Although the anomalies improved somewhat at the second testing of the shaft on August 5, no further-improvement was- found at the third testing-on August 15.

94. Case tried to avoid repairing the shaft for several months but ultimately repaired it in November 2011. Case argued that delay was appropriate because anomalies sometimes resolve themselves when the concrete cures, but it had no credible evidence excusing the length of the delay here. Miller also conceded that it was possible that Case caused the anomaly on the shaft. (See Doc. 131 at 147.) The repair was necessary because significant evidence showed serious, potential problems with the shaft that Case had constructed.

95. The credible evidence, considered with Case’s problems in constructing the other shafts and in the absence of any reasonable alternative explanation, leads the court to find that UNBl’s CSL results were most likely anomálous due to Case’s negligent workmanship, stemming from actions within Case’s control. Case’s delayed refusal to repair 11NB1 lacked a reasonable basis.

Dr. Dan Brown

96. During the summer of 2011, Case’s president Osborne hired Dan Brown, Ph: D., and his company, Dan Brown (^Associates, P.C., to evaluate • Case’s means' and methods, as well as other areas of contention between Case and FLJV.

97. Brown is a recognized expert in the construction of drilled shafts. He made two trips to the work site itself, observing the drilled shaft construction and speaking with Miller. It appears that Brown relied largely or exclusively on Case for the facts necessary to give his opinions.

98. During construction, Brown authored multiple letters to FLJV, giving his opinions on Case’s means and methods, as well as the shaft designs. Brown was also the one to recommend that Case hire S & ME to take additional borings at every drilled shaft location. Case seeks reimbursement of $43,699.63 for Brown’s consulting work.

Miscellaneous Delays & Expenses

99. Case caused various other small'delays and'additional expenses on the Project. First, it was discovered early in the Project that one of Case’s drills wás not the appropriate diameter. NCDOT discovered the problem when- it was measuring one of Case’s tools, which was labeled as 54 inches but turned out to be 53 inches. Because of this, the designers had to review the designs on all of the remaining shafts to .determine whether the design needed to change to accommodate Case’s tool. Not every shaft ultimately had to be redesigned, but the designers had to review the plans for every shaft to determine whether a redesign was necessary. Any delay caused by this appears to have been minimal.

100. Second, Case caused cave-ins on some shafts. In some instances, this was caused by Case’s air cluster drill, which was a risky and inefficient tool for highly variable geology; for this reason, it is not normally used in the Piedmont and was not necessary on this Project. (See¡ e.g,, Ex. 221.3 at 3.) In other instances, Case failed to properly-seal the bottom, of .the shaft with steel casing. When Case was drilling on hard rock at the bottom of the shaft, the high-powered air tools pushed air through the improperly sealed shaft, causing turbidity in the river. On several occasions, NCDOT shut down the entire drilling operation because the turbidity stirred up silt at prohibited environmental levels. Thirty-four of the 90 RFIs on the drilled shaft work.were due to cave-ins; Overall; Case caused cave-ins that contributed to the delay. -

101. Third and finally,' Case’s own equipment downtimes and breakdowns delayed the Project. On more than one occasion, a diver was called to retrieve a drill bit that Case had dropped ¡into an open shaft, shutting down' work-on that shaft. (See Ex, 642.) Sometimes Case’s equipment broke down, slowing production; at one point, both drill rigs were broken, halting Case’s production. (See, e.g., Ex. 623; Ex. 542.).

102. Buck directed Case’s employees to omit the extent of the equipment breakdowns from the daily records Case was obligated to submit to FLJV under the Subcontract (Ex. 200 at 7 ¶ 8). Buck feared that the extent of the breakdowns would make it appear “that things were broken down all the time.” (Ex. 614.) Buck, who was not present at the job site, also frequently edited the daily reports to FLJV to claim that Case was encountering delays due to FLJV’s failure to provide templates, which was factually inaccurate. (See id.) In sum, Case’s employees, including but not limited to Buck, manipulated the daily reports to make it appear that FLJV was causing delays and that Case was not causing delays.

Completion of Bridge 2

103. The construction of the drilled shafts ultimately took three times as long as originally expected. Case’s “good faith schedule” that it could complete the drilled shafts for both bridges in 16 weeks in reality turned into 44 weeks to finish the shafts on Bridge 2 alone, with Case reaching completion of its Bridge 2 work in December 2011. In April 2011, FLJV and Case had discussed waiving the 16-week requirement in the Subcontract, and, while they reached a tentative oral agreement on this and other matters intended to be memorialized in writing, they were never able to work out the details of the arrangement, and thus the 16-week requirement was never waived by FLJV.

104. Most of the delay on the Project is attributable to Case rather than FLJV. However, some of the delay was caused by FLJV’s failure to coordinate the design and construction of the drilled shafts, as well as the failure of FLJVs designers to create acceptance criteria for the highly variable geology.

105. Case claims that, had it been able to fully implement its intended means and methods, it would have been able to complete the Project in a timely manner. However, Case was in fact able to fully implement its methods on bent 8, which Miller described as “going beautiful” to him. (Doc. 131 at 196.) Case’s production rate on the bent 8 shafts was around three times as low as Case had estimated the job. (See, e.g., Ex. 671). Therefore, Case’s actual per shaft production rate on Bridge 2 and the average rate at which it took Case to complete the bent 8 shafts were basically equal. Consequently, any limitations on Case’s means and methods had little or no effect on Case’s productivity-

106. Only tasks on a critical path are the ones actually delaying the final completion of a project; thus, a one-day delay to a task on the critical path becomes a one-day delay to the entire project’s completion. (Doc. 133 at 66.) Despite the delays on the job attributable to both Case and FLJV, Case’s drilled shaft work was never on the critical path of the overall Project. For example, in July 2011, FLJV submitted a status update on the entire Yadkin Project to NCDOT. Based on Case’s 16-week estimate, the drilled shafts should have been completed at this point, but Case would not complete Bridge 2 until December 2011. Yet FLJV’s status update reflects that the drilled shaft work was still not on the critical path. (See Ex. 1174.) It is possible for an item of work to fall so far behind schedule that it is placed on the critical path, but FLJV never presented any evidence that Case’s work was ever put on the critical path. Therefore, although there was delay in completing Bridge 2, this did not delay the overall Project, including Bridge 3 and other road work; FLJV in fact timely completed its contract with NCDOT.

107. Although FLJV periodically made payments to Case for the units it had completed on the drilled shaft work, FLJV withheld Case’s final payment for Bridge 2 relating to authorized work, totaling $306,717.34. (Ex. 1932.) FLJV claimed the amount as an offset for its damages due to Case’s alleged breaches of the Subcontract.

108. FLJV was ultimately satisfied with the quality of Case’s drilled shafts. However, by the time Case completed its Bridge 2 work, the relationship between the two companies had grown acrimonious, with each side preparing for litigation.

Bridge 3

109. After Case completed Bridge 2, NCDOT had not cleared up access problems to the Bridge 3 work site. Case, therefore, demobilized its workforce' and left the site.

110. Bridge 3 was a relatively small part of Case’s scope of work. It was only planned to have 12 drilled shafts, compared to the 140 shafts Cape drilled for Bridge 2.

111. When FLJV began sending Case the preliminary design plans for Bridge 3, Case refused to do the work at the unit prices in Attachment C of the Subcontract. (Ex. 691.) Whereas the Subcontract priced the 60-inch permanent casing for Bridge 3 at $278 per linear foot, Case now demanded $2,500 per linear foot; whereas the Subcontract priced the in soil excavation at $241 per linear foot, Case demanded $2,500 per linear foot. The Subcontract also set a price of $256,185 for Case’s mobilization, which presumably included the cost to Case of mobilizing to Bridge. 2 and then moving its operation to Bridge 3. Although Case had never mobilized to Bridge 3, it was now demanding $1,000,000 for doing so. Case’s new estimated total for Bridge 3, therefore, was $3,450,000, a nearly tenfold increase from the original Subcontract.

112. FLJV balked at this pricing and refused to pay it unless Case could explain how it reached such figures. Case merely responded by complaining about the problems it believed it had encountered on the Bridge 2 work. (Id.) In particular, Case refused to justify the $1,000,000 mobilization price tag.

113. On March 15, 2012, Mathews sent a letter to Buck terminating Bridge 3 from the scope of Case’s work, characterizing this act as a change order reducing the scope of Case’s work. (Id.) This termination left no work for Case to do on the Project.

114. Case responded that the change in scope was in fact a termination for convenience and continued preparing a claim against FLJV. (Ex. 1202; Ex. 1203.).

115. More likely than not, Case purposely quoted the new unit prices at unreasonably high rates because it wanted to recoup its costs or be terminated from the job for convenience, so it could argue that the Subcontract’s termination for convenience clause would permit it to recoup its losses.

116. At no time before filing this lawsuit did FLJV ever declare that Case was in default and give notice of the default to Case’s surety, Fidelity & Deposit Company of Maryland (“F & D”).

117. In the meantime, FLJV sought quotes from other drillers to complete Bridge 3. Coastal Caisson Corporation proposed to do the work for an estimated $471,255 (the price being based on preliminary quantities and unit prices), with only $60,000 of that total being for mobilization. (Ex. 691.) FLJV ultimately paid Coastal Caisson $542,542.48 for the drilled shaft work on Bridge 3. (Ex. 375.),

118. FLJV completed the overall Project, including Bridges 2 and 3, on time and within NCDOT’s budget. (Doc. 121 at 62-63.)

11. CONCLUSIONS OF LAW

This court has diversity and supplemental jurisdiction pursuant to 28 U.S.C. §§ 1332, 1367. The substantive law of North Carolina applies to the claims in this case.

Under. North Carolina law, to prevail on a breach of contract claim, the “plaintiffs evidence must show a valid contract existed between the parties, the defendant breached the terms of the contract, the facts constituting the breach, and damages resulted from the breach.” Lee Cycle Ctr., Inc. v. Wilson Cycle Ctr., Inc., 143 N.C.App. 1, 545 S.E.2d 745, 751 (2001), aff'd, 354 N.C. 565, 556 S.E.2d 293 (2001). The damages must be “the natural and probable result of the acts complained,” “must show loss with a reasonable certainty,” and not “be based upon mere speculation or conjecture;” Pike v. Wachovia Bank & Trust Co., 274 N.C. 1, 161 S.E.2d 453, 466 (1968). The parties do not dispute the validity of the Subcontract in this case; rather, they focus on whether there has been breach of the Subcontract and whether the opposing party can prove damages with reasonable certainty.

In large part, the outcome of this case depends on two questions: (1) What were FLJVs contractual obligations, if any, to accommodate Case’s preferred means and methods? (2) Who, if anyone, is responsible for the delay in the drilled shaft construction?

A. Accommodation of Case’s Means and Methods

Case argues that the Subcontract obligated FLJV to ensure that the drilled shafts were designed in a way that accommodated Case’s planned means and methods. (Doc. 96 at 6.) FLJV argues that it had no duty to design the shafts in a way that accommodated Case’s preferred means and methods; rather, it was Case that had the burden under the Subcontract to employ means and methods accommodating the design plans. (Doc. 97 at 19.) The issue came to a head because the final plans for some of the shafts precluded Case’s preferred means and methods.

■ It is worth noting that FLJV is not responsible for Case’s decision not to use outer temporary casing. No one prevented Case from using outer temporary casing — indeed, Case used it on about 20% of the piers. Rather, Case was merely required to fill the annular space to make the method sound from an engineering perspective. All the credible evidence confirmed this conclusion, including Case’s own expert, Dr. Brown. (See, e.g., Doc. 133 at 188-90.) Even if FLJV had been required to accommodate this construction method, FLJV did nothing to preclude the use of outer temporary casing beyond enforcing the requirements of NCDOT and the judgment of the engineers.

The real dispute is over the depth to which Case desired to take the permanent casing. This conflict centers on the proper construction of one paragraph of the Subcontract. In Attachment A, the “Special Terms & Conditions,” paragraph 12 refers to Case’s means and methods:' “Subcontractor methods are based upon drilling inside seated steel casings (into rock or competent material that will support the use of air core barrels, chisels and/or air down hole hammers) using water slurry, (all water provided by Contractor),” (Ex. 200 at 7.)

This paragraph is ambiguous. Register v. White, 358 N.C. 691, 599 S.E.2d 549, 553 (2004) (“An ambiguity exists in a contract when either the meaning "of words or the effect of provisions is uncertain or capable of several reasonable interpretations. An ambiguity can exist when, even though the words themselves appear clear, the specific facts of the case create more than one reasonable interpretation of the contractual provisions.” (citations omitted)). The parties dispute whether the “steel casings” referred to here should be read as permanent casing (Case’s preferred reading) or temporary casing for the inner temporary casing method (FLJV’s preferred reading). When this paragraph is read in conjunction with the Unit Price Schedule, Attachment C and the other credible evidence at trial, the methods referred to in paragraph 12 show that Case’s “methods” were to drill permanent casing into rock or other material competent enough to support the use of air tools. This is because, as Attachment C shows, the expected linear feet of permanent casing equals the expected linear feet of drilling for that casing. Thus, every foot of the shaft was meant to be permanently eased. This is Case’s proposed interpretation of the “methods” referred to in paragraph 12, and the court accepts this interpretation as the only one supported by the credible extrinsic evidence. See Holshouser v. Shaner Hotel Grp. Props. One Ltd. P’ship, 134 N.C.App. 391, 518 S.E.2d 17, 23 (1999) (“[I]f the terms of the contract are ambiguous .then resort to extrinsic evidence is necessary, and the question is one -for the jury.” (quoting Whirlpool Corp. v. Dailey Construction, Inc., 110 N.C.App. 468, 429 S.E.2d 748, 751 (1993)), aff'd, 351 N.C. 330, 524 S.E.2d 568 (2000)).

The problem for Case, however, is that, in paragraph 12, FLJV has promised to do very little with. regard to what Case’s “methods are based upon.” The only language of obligation is FLJV’s promise to provide the water for Case’s “water slurry.” Nowhere in paragraph 12 has FLJV promised to design the drilled shafts in a, way that will accommodate Case’s methods of taking permanent casing all the way down to rock or other competent material. FLJV only promised that, if Case executed that method, FLJV would provide the water for the water slurry.

The Subcontract has no provision expressing FLJV’s direct control over Case’s means and methods. Per the terms of the Subcontract preceding the attachments, Case agreed to “[p]rovide all supervision, labor, tools, equipment and materials to' perform, drilled shaft items, as noted in Attachment C, per the plans and 2006 NCDOT standard specifications.” (Ex. 200 at 2.). Unless otherwise noted in a construction agreement, “It is axiomatic that a contractor [rather than the owner] is the party responsible for determining the best way to construct the improvements. This is often expressed in terms of construction ‘means and methods.’” 5 Philip L. Bruner and Patrick J. O’Connor, Jr., Bruner and O’Connor on Construction Law § 15:63 (2002 & Supp.2015). As noted at trial, general contractors generally avoid directing a subcontractor’s means and methods because doing so exposes the general contractor to expenses, arising from those directives. See also id. (“Where the owner interferes with a contractor’s means and methods [by] giving direction as to how to accomplish the work, it is exposing itself to liability for any delays and extra costs that ensue from its directives.”). The Subcontract left to FLJVs discretion the ability to create any plans for the drilled shafts it wanted (in compliance with NCDOT specifications), and allocated the burden of constructing those shafts, by any means or methods, to Case.

Paragraph 12 did not give Case a right to insist o.n the shafts being designed to suit its preferred construction needs. The parties could have contracted for that, but did not do so. Indeed, although Case maintained at the outset of the trial that the Subcontract was a “means and methods” or “time and materials” contract, its witnesses conceded that it was not, but was rather a unit price contract. (See, e.g., Doc. 129 at 147; id. at 175-76; Doc. 130 at 103-04.)

Case argues that FLJV should have drawn up plans to accommodate taking permanent casing down to rock or competent material. FLJV could have done that, but it was not contractually required to do so. The Subcontract, like most, put the burden on the subcontractor to use means and methods consistent with the final plans drawn up by FLJV. Once paragraph 12 is explained through extrinsic evidence, Case’s preferred methods become clear. However; even after the intended method is understood, it is plain that FLJV had no contractual obligation to design the drilled shafts to accommodate Case’s express desire to take permanent casing down to rock or competent material.

B. Fault for the Delay

The other fundamental dispute in this case is factual. The drilled shafts that were expected to take 16 weeks to complete in fact took 44 weeks. Which party, if either, is responsible for the delay? The answer is that both share responsibility for it.

FLJV is partly to blame because it knew, or should have known, that its designers were designing Bridge 2 in a manner inconsistent with the construction methods Case intended to employ. Although FLJV was not contractually bound to accommodate Case’s pre