Citations
- 345 F. Supp. 3d 11
Full opinion text
Amit P. Mehta, United States District Judge
This dispute between Plaintiff American Civil Construction, LLC ("Plaintiff" or "ACC") and Defendants Hirani Engineering & Land Surveying, PC ("Hirani") and Colonial Surety Company ("Colonial") arises out of ACC's work as a subcontractor to Hirani on a federal government construction project located on the National Mall in the District of Columbia.
ACC brought this action against Colonial under the Miller Act, 40 U.S.C. § 3133, and also brought a state law claim against Hirani for breach of contract. As to both claims, Plaintiff seeks $2,172,285.23 in money damages, plus prejudgment interest, attorney's fees, and costs. Colonial, in turn, brings a variety of counterclaims against ACC and asserts that it incurred losses in the amount of $723,049.14 to finish the project that ACC failed to complete.
After denying Defendants' motion for summary judgment, the court conducted a five-day bench trial in March 2018. After the bench trial concluded, the parties submitted proposed findings of fact and conclusions of law, as well as briefs in rebuttal. The court held a final oral argument on June 14, 2018.
As required by Federal Rule of Civil Procedure 52(a)(1), the court now makes its Findings of Fact and Conclusions of Law. The court has reviewed the parties' submissions, carefully considered the evidence presented at trial, weighed the credibility of the witnesses, and applied the applicable law. For the reasons set forth below, the court has determined that Plaintiff has met its burden of proof with respect to its Miller Act claim against Colonial and its breach of contract claim against Hirani. On the other hand, the court finds that Defendant Colonial has not sustained its burden of proof on its counterclaims.
Accordingly, the court will enter final judgment in favor of ACC. It will formally do so, however, only after ACC submits a final damages calculation that is consistent with these Findings of Fact and Conclusions of Law.
BACKGROUND
To provide clarity and context for these findings of fact and conclusions of law, the court provides a brief overview of the undisputed facts underlying this case and then summarizes the case's procedural history.
A. Factual Background
In June 2010, the United States Army Corps of Engineers ("USACE") issued a solicitation for bids to construct a levee wall across 17th Street, N.W. in the District of Columbia, south of Constitution Avenue, N.W. (the "Project"). Flanked on the west side by the National World War II Memorial and on the east side by the Washington Monument, the 380-foot-long levee wall was designed to prevent the Potomac River from flooding across the National Mall into downtown Washington, D.C. As designed, the 17th Street levee wall consists of two permanent stone-clad levee stem wall sections, one on the east side and the other on the west side of 17th Street, which sit on a curved grade beam foundation supported by twenty-four reinforced concrete caissons running underground across the street. The grade beam foundation running across 17th Street contains eight "post pockets." In the event of a 100-year flood, these pockets are filled with an eight-foot-tall temporary metal post and aluminum panel system that connect to the east and west levee stem walls to block surging floodwaters. The images below illustrate the Project.
Images: completed stone-clad levee stem walls (Source Pl.'s Ex. 5)
Drawing of 17th Street levee (Source: Washington Post)
Following a bid process, on September 16, 2010, the USACE awarded Hirani the contract ("the Prime Contract") to construct the 17th Street levee wall for the amount of $3,833,097.00. The USACE subsequently awarded "Option 1" to Hirani on December 16, 2010, requiring Hirani to install stone veneer cladding and coping on the permanent levee walls for $641,369.00. As required by Hirani's contract with the USACE, Colonial issued performance and payment bonds on behalf of Hirani.
On April 4, 2011, ACC and Hirani entered into a fixed-price subcontract ("the Subcontract") for $2,845,600.00, under which ACC agreed to perform most, but not all, of Hirani's obligations under the Prime Contract. ACC began performing under the Subcontract a week later, and Hirani subsequently subcontracted Option 1 to ACC in the amount of $613,650.00.
The ensuing years on the Project were beset by a series of delays, modifications to the scope of the Project, and work-related disputes. By letter dated April 26, 2013, two-and-a-half years after it awarded the Prime Contract to Hirani, the USACE gave notice of its intent to terminate Hirani. In the days following Hirani's termination, ACC left the Project site. The USACE subsequently made a demand against the Performance Bond issued by Colonial, and Colonial stepped in to complete the Project. With the assistance of Loewke Brill, a consulting firm, Colonial contracted with Akima Construction Services, LLC, Lorton Stone, LLC, and Structural Stone, LLC, to complete the Project, including Option 1, and did so around November 2014.
B. Procedural Background
ACC filed suit in this court against Hirani and Colonial on April 29, 2014. See Compl., ECF No. 1. Colonial responded by filing four counterclaims against ACC: (1) two for breach of contract, one as assignee of Hirani and one as surety; (2) one for breach of the covenant of good faith and fair dealing; and (3) one for interference with contractual relations. See Def. Colonial's Answer & Countercls., ECF No. 8. With leave of court, Plaintiff filed a Second Amended Complaint on February 16, 2016, asserting two claims: (1) breach of contract against Hirani, and (2) a payment demand under the Miller Act against Colonial, premised on the payment bond Colonial issued in connection with the Prime Contract. Plaintiff's Second Amended Complaint sought quantum meruit damages in the amount of $2,070,185.23. See Second Amended Compl., ECF No. 26.
Following discovery, Defendants jointly filed a Motion for Summary Judgment and a Motion to Strike Plaintiff's Jury Demand. See Defs.' Mot. for Summ. J., ECF No. 44; Defs.' Mot. to Strike Jury Demand, ECF No. 45. The court denied Defendants' Motion for Summary Judgment and granted Defendants' Motion to Strike the Jury Demand on June 27, 2017. See Mem. Op., ECF No. 54; Order, ECF No. 55. Following a delay in the proceedings, the parties appeared for a Pretrial Conference on February 23, 2018. See Pretrial Conf. Hrg. Tr. (February 23, 2018), ECF No. 75. The court thereafter conducted a bench trial over the course of five days from March 5, 2018, to March 9, 2018. See Trial Tr. Day 1 A.M. Session (March 5, 2018), ECF No. 76 [hereinafter Day 1 A.M. Tr.]; Trial Tr. Day 1 P.M. Session [hereinafter Day 1 P.M. Tr.]; Trial Tr. Day 2 A.M. Session (March 6, 2018), ECF No. 77 [hereinafter Day 2 A.M. Tr.]; Trial Tr. Day 2 P.M. Session [hereinafter Day 2 P.M. Tr.]; Trial Tr. Day 3 A.M. Session (March 7, 2018), ECF No. 78 [hereinafter Day 3 A.M. Tr.]; Trial Tr. Day 3 P.M. Session [hereinafter Day 3 P.M. Tr.]; Trial Tr. Day 4 A.M. Session (March 8, 2018), ECF No. 79 [hereinafter Day 4 A.M. Tr.]; Trial Tr. Day 4 P.M. Session [hereinafter Day 4 P.M. Tr.]; Trial Tr. Day 5 A.M. Session (March 9, 2018), ECF No. 80 [hereinafter Day 5 A.M. Tr.].
During the bench trial, ACC presented three witnesses: (1) Irene Stephen, owner of ACC, who also served as Hirani's on-site Contractor Quality Control Assistant on the Project; (2) Jitendra Hirani, president of Hirani; and (3) Rick Janeiro, president of Roubin & Janeiro, Inc., a local stone contractor. Ms. Stephen, ACC's primary witness, testified both as a fact witness and as an expert in cost accounting in the heavy and highway construction industry. See Day 1 A.M. Tr. at 37:14-95:1; Day 1 P.M. Tr. at 5:10-21:5; Day 2 A.M. Tr. at 6:5-125:17; Day 2 P.M. Tr. at 3:9-112:12; Day 3 A.M. Tr. at 77:1-138:11; Day 3 P.M. Tr. at 3:4-86:6. Mr. Hirani, called as an adverse witness, testified as a fact witness regarding Hirani's Prime Contract with the USACE, disputes and delays on the Project resulting from claimed failures by ACC to submit scheduling data, and Hirani's termination from the Project. See Day 1 P.M. Tr. at 21:12-107:24. Mr. Janeiro testified as a fact witness regarding his company's role as ACC's stone supplier and subcontractor to complete Option 1 of the Project. See Day 3 A.M. Tr. at 6:7-75:25.
Defendants presented two witnesses in their case: (1) Michael Vogt, an executive vice president of Loewke Brill Consulting Group, Inc., which Colonial hired in July 2013 to oversee completion of the Project after Hirani's termination; and (2) Robert Franklin, the USACE's project engineer for the Project. Mr. Vogt testified as a fact witness regarding the status of the Project upon Hirani's termination, the work remaining under the Prime Contract and Subcontract, and the costs incurred by Colonial to complete the Project. See Day 4 A.M. Tr. at 11:6-118:5; Day 4 P.M. Tr. at 3:4-85:11; Day 5 A.M. Tr. at 6:1-22:21, 98:9-130:20. Mr. Franklin testified as a fact witness regarding Hirani's and ACC's performances under the Prime Contract and Subcontract, the USACE's termination of Hirani, and Colonial's eventual completion of the Project. See Day 5 A.M. Tr. at 23:15-97:25. In its rebuttal case, ACC recalled Irene Stephen. See Day 5 A.M. Tr. at 139:11-160:13. Both parties introduced a substantial volume of exhibits.
After Defendants rested their case, defense counsel made oral motions for judgment as a matter of law as to ACC's Miller Act claim pursuant to Federal Rules of Civil Procedure 50(a) and 52(c), asserting that no reasonable factfinder could conclude that ACC performed compensable work within one year of commencing its action as required by the Miller Act, 40 U.S.C. § 3133(b)(4). See Day 5 A.M. Tr. at 161:2-161:20. The court deferred ruling on these motions. Id. at 161:21-162:3.
Following the close of trial, each party submitted its proposed findings of fact and conclusions of law to the court. See Pl.'s Proposed Findings of Fact & Conclusions of Law, ECF No. 82 [hereinafter Pl.'s FOF & COL]; Defs.' Proposed Findings of Fact & Conclusions of Law, ECF No. 83 [hereinafter Defs.' FOF & COL]. The parties also submitted opposition briefs. See Defs.' Rebuttal re: Pl.'s FOF & COL, ECF No. 86 [hereinafter Defs.' Rebuttal]; Pl.'s Response re: Defs.' FOF & COL, ECF No. 87 [hereinafter Pl.'s Rebuttal]. The court held oral argument on these submissions on June 14, 2018. See Oral Arg. Tr. (June 14, 2018), ECF No. 90 [hereinafter Final Arg. Tr.].
LEGAL STANDARD
"In an action tried on the facts without a jury ... the court must find the facts specially and state its conclusions of law separately." Fed. R. Civ. P. 52(a)(1). "The findings and conclusions ... may appear in an opinion or a memorandum of decision filed by the court." Id. "The [c]ourt's findings must be sufficient to indicate the factual basis for the ultimate conclusion." Paleteria La Michoacana, Inc. v. Productos Lacteos Tocumbo S.A. , 188 F.Supp.3d 22, 34 (D.D.C. 2016) (internal quotation marks omitted). However, "[i]n setting forth the findings of fact, the court need not address every factual contention and argumentative detail raised by the parties, [n]or discuss all evidence presented at trial." Moore v. Hartman , 102 F.Supp.3d 35, 65 (D.D.C. 2015) (internal quotation marks and citations omitted). Instead, " 'the judge need only make brief, definite, pertinent findings and conclusions upon the contested matters' " in a manner that is "sufficient to allow the appellate court to conduct a meaningful review." Wise v. United States , 145 F.Supp.3d 53, 57 (D.D.C. 2015) (quoting Fed. R. Civ. P. 52(a) advisory committee note to 1946 amendment).
A litigant bears the burden of proving each element of its claim by a preponderance of the evidence, a standard that "requires a factfinder to decide that the existence of a fact is more probable than not." See Window Specialists, Inc. v. Forney Enters., Inc. , 106 F.Supp.3d 64, 88 (D.D.C. 2015) (citing Concrete Pipe & Prods. of Cal., Inc. v. Constr. Laborers Pension Trust for S. Cal. , 508 U.S. 602, 622, 113 S.Ct. 2264, 124 L.Ed.2d 539 (1993) ). As the factfinder, the court "must evaluate the raw evidence, finding it to be sufficiently reliable and sufficiently probative to demonstrate the truth of the asserted proposition with the requisite degree of certainty." Bensayah v. Obama , 610 F.3d 718, 725 (D.C. Cir. 2010) (quotation marks and citation omitted).
FINDINGS OF FACT
With these principles in mind, the court makes the following findings of fact:
THE PARTIES
1. Plaintiff American Civil Construction ("ACC") is a Maryland limited liability company. At all times relevant, ACC was engaged in the business of heavy and highway civil construction contracting.
2. Defendant Hirani Engineering & Land Surveying ("Hirani") is a New York corporation.
3. Defendant Colonial Surety Company ("Colonial") is a Pennsylvania surety corporation.
THE PROJECT AND PRIME CONTRACT
4. On or about June 25, 2010, the United States Army Corps of Engineers ("USACE") issued a solicitation for a fixed-price construction proposal for a project to build a levee flood wall across 17th Street, N.W. in the District of Columbia, between Constitution and Independence Avenues, N.W. Pl.'s Ex. 10, at 37; Pl.'s Ex. 11.
5. The construction project is known as the "Washington D.C. and Vicinity, Local Flood Protection Project, 17th Street Closure Structure" (the "Project"). Pl.'s Ex. 11.
6. The Project involved the installation of twenty-four reinforced concrete caissons embedded approximately five to ten feet into solid bedrock. These twenty-four caissons support a 380-foot long, curved grade beam foundation. Sitting on top of this grade beam foundation are two permanent 120-foot levee stem wall sections, one on the east side and one on the west side of 17th Street.
7. The Project also required, among other things, construction of a temporary eight-foot high protective stockade wood fence around the construction work areas; regrading of disturbed areas; temporary maintenance of traffic barriers and signs during partial closures of 17th Street to vehicle traffic; and landscaping (tree and sod planting).
8. On August 27, 2010, Hirani submitted its bid proposal, in the following amounts: (1) $3,833,097.00 for the base contract work of the Project, excluding any options that the USACE may exercise during the course of the Project; (2) $641,369.00 for installing stone veneer on the levee walls ("Option 1"); and (3) $99,125.00 for planting new trees and sod on the east side of 17th Street ("Option 2"). See Pl.'s Ex. 17, at 1, 3-6.
9. On September 16, 2010, the USACE awarded Hirani Contract No. W912DR-10-C-0093 (the "Prime Contract"), accepting Hirani's base contract work bid of $3,833,097.00 for the construction of the Project. See id. at 1.
10. The Prime Contract contemplated completion of the Project by October 12, 2011, one year from issuance of the Notice to Proceed dated October 13, 2010. Pl.'s Ex. 56 at 3.
11. The Prime Contract required Hirani to obtain a surety bond. Pl.'s Ex. 17 at 3.
12. On October 1, 2010, Colonial, as surety, issued a performance bond and payment bond in the sum of $3,833,097.00, each bearing the bond number CSC-218890, on behalf of Hirani, as principal, and the United States of America, as obligee. See Pl.'s Exs. 24, 25.
THE SUBCONTRACT WITH ACC
13. On April 4, 2011, six months after the USACE awarded the Prime Contract to Hirani, ACC and Hirani entered into a written subcontract (the "Subcontract"), under which ACC would perform specified work on the Project, as defined by the Subcontract. See Pl.'s Ex. 54 [hereinafter Subcontract], at 6-16.
14. Also, on April 4, 2011, Hirani separately retained Irene Stephen, a co-owner and an officer of ACC, to serve as Hirani's "Alternate Contractor Quality Control System Manager" and "Project Quality Control System Administrator" on the Project. See Pl.'s Ex. 77 at 16-18. Ms. Stephen's responsibilities included, among other things, (a) to "[a]ssist with the conducting on a continuing basis, sufficient daily follow-up reviews of work to ensure that all workmanship and materials" conform to Project specifications; (b) to "[a]ssist with coordination and management of all quality control and materials testing functions"; (c) to "[a]ssist with the preparation, management, and submission of all Daily Quality Control Reports to the Owner's Representative each workday at the project"; and (d) to "[a]ssist with the management, review, and tracking of" construction efforts, construction deficiencies, and any stoppages or cessations of work. Id. at 17-18.
15. ACC first began performance under the Subcontract beginning on April 11, 2011. Pl.'s Ex. 31 at 1; see Day 2 A.M. Tr. at 34:16-34:17.
16. The Subcontract was a fixed-price agreement in the amount of $2,845,600.00 for "all labor, services, materials, equipment or other items acquired, performed, furnished or used ... with respect to the Work," along with applicable federal, state, and local taxes. See Subcontract at Art. III, § 3.1.
17. Pursuant to the Subcontract, ACC was required to provide the entire scope of work to construct and manage the Project, except for Project management, quality control, and miscellaneous metal structures and panels and related work assigned to Hirani under the Prime Contract. See id. at Art. I, §§ 1.1, 1.4.
18. Schedules A and B of the Subcontract define in greater detail the work ACC was required to perform. See id. at Art. I, §§ 1.2, 1.3; id. at Sch. A-B.
19. As provided in Schedule B, among other tasks, ACC was required to "provide project supervision (Superintendent, Site Safety Officer, Traffic Control Officer) except for a project manager to act on behalf of [Hirani]"; "work with the Hirani project manager in submitting monthly requisitions, progress updates"; "provide all field labor to maintain the site and do general cleanup as required"; "[f]urnish [and] install all fencing (site, silt, tree protection, temporary), and relocate as per the drawings and specifications with appropriate signage"; "provide all grading including all excavation & backfill as per the plans and specifications"; and "[f]urnish and install all stone masonry work for base scope of work: curbs, grade beam, stone coping and cladding adjacent to end post channels & expansion joints as per the plans and specifications." See id. at Sch. B, Pts. 2, 5, 8, 11, 14, 19.
20. In the Subcontract, Hirani reserved the right to change, add, or eliminate portions of the Work "at any time whatsoever, whether the Work or any part thereof shall or shall not have been completed," by written order submitted to ACC, and ACC agreed not to seek "extra or additional compensation on account of any such work, unless same shall have been done pursuant to a written order, signed by" a designated Hirani representative. See id. at Art. IV, § 4.1.
21. ACC additionally agreed that, in the event a "dispute, controversy [,] or question" arose in the interpretation of the Subcontract, it would not stop or delay performance of the Work or delivery of labor or material, but would continue to work "pending the determination of such dispute or controversy." See id. at Art. XIV, § 14.1.
22. The Subcontract specified the grounds for contract termination. See id. at Art. XV, § 15.1.
23. Under the termination for default provision, the Subcontract provided that if ACC "fail[ed] to timely provide labor, services, and/or materials for the Project in accordance with the terms of [the] Subcontract, then Hirani [retained] the right at any time upon 7 days written cure notice to [ACC] to terminate [the] Subcontract and require [ACC] to cease work." See id.
24. Under the termination for convenience provision, the Subcontract provided that if the USACE "ch[ose] to terminate Hirani for the convenience of the [USACE], then [ACC] shall be similarly terminated, and the obligations and rights of the parties shall be in accordance with the provisions of the prime contract for such termination for convenience." See id.
THE PROJECT SCHEDULE
25. The Prime Contract required Hirani to "[e]nsure that the work in progress, and the finished product, complies with all quality requirements of the plans and specifications." Pl.'s Ex. 17 at 2.
26. Section 01 32 01 of the USACE's Construction Specifications relates to scheduling for the Project and details requirements for the creation, production, and updating of the Project Schedule. See Pl.'s Ex. 12 [hereinafter Project Schedule Specifications], at 26-39.
27. The Project Schedule was required to be a forward-planning and project monitoring tool for the entire Project, including the design and construction sequences. The Schedule was required to show the sequence in which the work on the Project would be performed and dates on which all scheduled activities would be started and completed. Id. at § 3.1.
28. The Project Schedule Specifications required that an authorized representative be designated by Hirani "to be responsible for the preparation of the schedule and all required updating (activity status) and preparation of reports." Id. at § 1.2; see Day 1 P.M. Tr. at 64:11-65:7.
29. Hirani was responsible for the scheduling of construction for the Project, and Hirani management personnel were required to actively participate in the development of the Schedule. Project Schedule Specifications at § 3.1.
30. ACC was required to contribute in developing and maintaining an accurate Project Schedule. Id.
31. Hirani was required to provide to the USACE a Schedule Status Report at least on a monthly basis. Id. at § 3.1.2.
32. If the USACE Contracting Officer determined that Hirani was falling behind the approved schedule, the Contracting Officer could require increased work and overtime operations until the approved rate of progress was restored. Hirani's failure to comply with the requirements of the USACE Contracting Officer would constitute grounds for a determination that Hirani was not prosecuting the work with sufficient diligence to ensure completion of the Project within the time specified in the Prime Contract. Id. at §§ 3.1.2, 3.1.3.
33. The Subcontract between Hirani and ACC incorporated the USACE's Construction Specifications and required ACC to perform the work under the Subcontract "in strict compliance with the drawings, specifications, addenda, and bulletins."See Subcontract at Art. I, § 1.2; Day 1 A.M. Tr. at 68:13-68:17.
34. According to the Subcontract, the scheduling of all construction operations at the Project was to be "mutually agreed" upon between ACC and Hirani and, "if requested," ACC was required to "furnish all scheduling information in such form and detail as required by [Hirani], to the satisfaction [of] [Hirani]," within seven days of the request. ACC was also required to "update and/or revise such information as requested by [Hirani] at any time, either prior to or during the performance of [ACC's] [w]ork." See Subcontract at Art. II, § 2.2.
35. In or around April 2011, Hirani hired Tom Miller of JSM Associates, Inc. as the scheduler for the Project tasked with producing an initial schedule, or "Baseline Schedule," and periodically updated schedules for the Project. Day 1 A.M. Tr. at 78:9-78:22; see Day 1 P.M. Tr. at 39:23-41:15, 64:11-65:7.
36. Hirani submitted the Baseline Schedule to the USACE, as agreed upon by both Hirani and ACC, and the USACE subsequently approved it in June of 2011. See Pl.'s Ex. 45; Day 1 A.M. Tr. at 78:23-81:24.
37. The Baseline Schedule projected a Project completion date of December 9, 2011. See Pl.'s Ex. 45 at 18.
38. After the USACE approved the Baseline Schedule, neither ACC nor the USACE agreed to an updated Project schedule again. Day 1 A.M. Tr. at 81:22-82:4.
39. Hirani submitted updated schedules to the USACE an additional four times: (1) on January 26, 2012, Pl.'s Ex. 46; (2) on April 23, 2012, Pl.'s Ex. 47; (3) on October 2, 2012, Pl.'s Ex. 48; and (4) on December 12, 2012, Pl.'s Ex. 49. The USACE rejected each of these submissions. See Pl.'s Exs. 46, 47, 48, 49; see also Day 1 A.M. Tr. at 85:13-85:21 (explaining that designation of "E" on each cover page signified rejection by the USACE).
40. Throughout its performance of the work, ACC supplied scheduling information to Hirani in the form of (1) "Basic Outlines of Dates for Work Performed at the Site," a backward-looking spreadsheet summarizing work performed, and the dates of work performed, by ACC, see Pl.'s Ex. 29; and (2) three-week "look-ahead" schedules, which as the name implies provided a projection of work to be accomplished in the ensuing three weeks, see Pl.'s Ex. 41. Additionally, Hirani's own Quality Control Reports, which Ms. Stephen prepared on a daily basis, provided information about work that ACC had accomplished on a given day. See Pl.'s Ex. 30.
41. ACC further supplied an "Option 1 Schedule" reflecting when ACC intended to complete Option 1 of the Prime Contract, i.e., the stone cladding on the stem walls. See Pl.'s Ex. 139 at 3-5.
42. On February 18, 2013, Hirani issued a Show Cause letter to ACC, in which Hirani requested that ACC provide a proposed schedule for completing the Project with a contract completion date of April 19, 2013. See Defs.' Ex. 54 at 2.
43. The Show Cause letter was the first time, in writing, that Hirani had informed ACC that the scheduling information ACC had submitted was unsatisfactory in form or detail, in the manner provided in the Subcontract. See Defs.' Ex. 54; see also Subcontract at Art. II, §§ 2.1-2.3.
44. Additionally, the Show Cause letter was the first time, in writing, that Hirani had asked ACC to update or revise any unsatisfactory scheduling information, in the manner provided in the Subcontract. See Defs.' Ex. 54; see also Subcontract at Art. II, §§ 2.1-2.3.
45. Mr. Hirani testified at trial that Hirani requested scheduling data, verbally or in writing, from ACC "50 to 100 times" prior to February 18, 2013, but ACC never delivered it. See Day 1 P.M. Tr. at 35:24-36:12 see also Defs.' Ex. 62 at 6 (asserting in a letter to ACC dated March 22, 2013, that "ACC has failed to provide the necessary information required to maintain a progress schedule for the last 20 months on the [P]roject as requested by Hirani ... and did not provide written justification of the delays per the schedule specification") (emphasis added).
46. The court does not find this testimony to be credible. Defendants presented no evidence, written or testimonial, to corroborate Mr. Hirani's assertion that ACC left unanswered Hirani's demands for satisfactory scheduling information.
47. Defendants did not submit proof of any written demand by Hirani, in any form (e.g., letter, email, handwritten note), for scheduling information from ACC during the nearly 20 months that passed between approval of the Baseline Schedule in June 2011 and the Show Cause letter on February 18, 2013. The voluminous documentary evidence showed that ACC maintained copious records concerning the Project, including of its communications with Hirani. The court finds it utterly implausible that, if as Mr. Hirani testified, he demanded scheduling information from ACC dozens of times without success before February 18, 2013, that there would be no written record whatsoever of at least one such demand.
48. Defendant presented no testimonial evidence to corroborate Mr. Hirani's claim regarding unanswered demands for scheduling information, including from Eric Hirani, Mr. Hirani's son, who was physically present at the Project more often than his father.
49. Once more, beyond Mr. Hirani's incredible testimony, there is no evidence in the record that ACC ever refused, verbally or in writing, to provide Hirani with updated scheduling information as required by § 2.2 of the Subcontract and Section 01 32 01 of the USACE's Construction Specifications.
PROGRESS ON THE PROJECT
50. On April 8, 2011, four days after Hirani entered into the Subcontract with ACC, the USACE issued a Cure Notice to Hirani requiring the following corrective actions to cure Hirani's performance problems on the Project to date: (1) resubmit an approvable Contractor Quality Control plan; (2) designate a qualified Contractor Quality Control System Manager; (3) resubmit an initial one-year Project schedule with a completion date of October 12, 2011; (4) supply construction submittals; and (5) provide proof that competent Project Management staff is in place to manage the Project. See Pl.'s Ex. 56.
51. On August 26, 2011, the USACE issued a Change Order AD to Hirani, providing a non-compensable time extension of 48 calendar days, thereby extending the substantial completion date for the entire Project to November 30, 2011. Pl.'s Ex. 40 at 3-4.
52. Over one year later, the Project remained unfinished. On December 16, 2012, the USACE issued a unilateral modification to the Prime Contract through Change Orders AQ, AY, BF, and BJ. See Pl.'s Ex. 123. The contract completion date for the Prime Contract was extended by 60 calendar days because of these modifications, resulting in an expected Project completion date of January 29, 2012. See Pl.'s Ex. 123 at 5.
53. Change Order BJ, known as "East Side Grade Beam Adjustment," required Hirani to supply the labor, equipment, and materials to trim concrete and rebar in the areas where the grass met the grade beam in order to allow grass to grow in that area. See Pl.'s Ex. 123 at 4; Day 2 A.M. Tr. at 56:4-58:16.
54. From July 3, 2012, to April 23, 2013, the USACE issued numerous unilateral change orders and constructive change directives to Hirani, who in turn subcontracted the work to ACC to complete these change orders. See Pl.'s Ex. 40 at 34-69.
55. On April 5, 2013, the USACE issued Change Order BL to Hirani, providing a non-compensable time extension of 180 calendar days, thus extending the Project completion date from January 29, 2012, to July 27, 2012. See Pl.'s Ex. 40 at 61-62. According to Change Order BL, the USACE authorized the additional time due to "120 days [ ] for concurrent delay and 60 days ... for work stoppage due to weather impacts." Id. at 62. The USACE identified the "concurrent delay" as related to, among other things, "East and West grade beam adjustment" and "Additional west side grading."
OPTION 1 AND THE GEOMETRY "BUST"
56. Section 02 00 00 of the USACE's Construction Specifications relates to the stone cladding and coping to be affixed to the permanent levee walls and details requirements for its completion. See Pl.'s Ex. 12, § 27 at 215-25.
57. On December 17, 2010, the USACE issued a modification exercising Option 1 in the amount of $641,369.00, requiring Hirani to install the stone cladding and coping on the permanent levee walls. This modification increased the Prime Contract from $3,833,097.00 to $4,474,466.00. See Pl.'s Ex. 26.
58. On August 12, 2010, the USACE issued Amendment No. 0003, modifying the Site Stone Cladding Specification. The Amendment specified American Granite, as supplied and fabricated by Champlain Stone Ltd., as the source of cladding and coping stones for the levee wall façade and the granite pavers on the exposed grade beam surface. Amendment No. 0003 further provides that "only the stone from Champlain Stone, Ltd. has been presented and approved by the Commission of Fine Arts, the National Capitol Planning Committee, and the National Park Service." According to the Amendment, if Hirani were to select a stone from any other manufacturer, Hirani would be responsible for obtaining approval from those organizations. Pl.'s Ex. 15.
59. The USACE and National Park Service wanted the color of the stone cladding on the levee walls to match the color of the stone on the Lockkeeper's House, a historical building on the corner of 17th Street and Constitution Avenue. Day 3 A.M. Tr. at 21:21-23:19.
60. On December 14, 2011, ACC executed Change Order No. 001 to the Subcontract in the amount of $613,650.00, in which Hirani awarded Option 1 to ACC to complete the stone cladding and coping work on the permanent levee walls. Pl.'s Ex. 79.
61. On or around May 18, 2011, ACC received sample American Granite stones, supplied by Champlain, the only supplier contractually permitted to provide stone for the Project. ACC visited the Lockkeeper's House to compare the stone samples with the existing stone façade on the Lockkeeper's House and found they did not match. See Pl.'s Ex. 31 at 139-40.
62. The following year, on or around April 5, 2012, ACC learned that there was a geometry "bust" problem with Option 1, meaning that the stone cladding could not be installed as required by the Project plans because the structural drawings and the architectural drawings were misaligned. See Pl.'s Ex. 87; Day 3 A.M. Tr. at 57:7-58:3.
63. On July 27, 2012, employees of Janeiro, Inc., ACC's stone installation subcontractor, visited the Project site to build mockups of a sample stone alternative to Champlain stones on a portion of the levee wall for review by the Commission of Fine Arts, the National Capitol Planning Committee, and the National Park Service. Pl.'s Ex. 1 at 59; see Day 2 P.M. Tr. at 51:4-51:14.
64. Around the first week of November 2012, the USACE, Champlain Stone Ltd., Janeiro, ACC, and OLIN, the landscaping and stone architect on the Project, held a meeting. During the meeting, Champlain's representatives explained that they could not provide stones in the strength, sizes, and shapes required to complete Option 1. Day 3 A.M. Tr. at 18:7-18:24.
65. Following this meeting, the USACE requested that Janeiro provide different stone samples from different quarries that could be used in the Project. Id. at 21:21-23:19; see Pl.'s Ex. 1 at 69.
66. Rick Janeiro suggested stones from a quarry in Carderock, Maryland, for the cladding and a granite stone called Jet Mist Granite from a quarry in Le Croix, Canada, for the pavers and coping. Day 3 A.M. Tr. at 23:16-24:3.
67. In early 2013, Rick Janeiro, Ed Hollander of ACC, OLIN, the National Park Service, and the USACE visited the Carderock quarry. Pl.'s Ex. 170; Day 3 A.M. Tr. at 26:17-26:19. Ed Hollander co-founded ACC with Ms. Stephen and served as ACC's field superintendent for the Project. Mr. Hollander died before the start of trial.
68. In early 2013, Janeiro received a notice of approval for the two types of stone chosen: Carderock stone and Jet Mist Granite. Day 3 A.M. Tr. at 25:3-25:6; Day 5 A.M. Tr. at 88:7-88:11.
69. On March 18, 2013, Hirani's on-site field superintendent submitted RFI No. 122 requesting confirmation of the following changes to the Site Stone Cladding Specification:
Change stone veneer thickness from 3? to 2?.
Jet Mist Copings with rock pitch / split face and thermal top and ends
Jet Mist wall end stones with end face thermal finish and wall face rock pitch / split face
Jet Mist typical veneer for dark shaded stone as viewed on contract drawings L-044 and L-045
Joint widths are to be 3/8? plus / minus tolerances
Variance in the stone surface will be allowed to the extent exhibited in the sample reviewed on site.
Tolerances listed in the specifications will be modified / exceeded due to the nature of the stone selected.
Thermal finish on veneer stone will be applied in accordance with
Olin's review comments on submittal 27-7.
Due to the nature of the split faced stone the design intent of having a 1/8? reveal on the brass expansion joints becomes impossible.
Please confirm that some deviation from this expected and acceptable.
Pl.'s Ex. 43 at 262.
70. On March 21, 2013, Robert Franklin of the USACE responded to RFI No. 122, and approved the use of two-inch thick stone cladding and a joint width of three-eighths inch. Pl.'s Ex. 43 at 262; see Day 5 A.M. Tr. at 87:4-87:18.
71. The record does not support Defendants' assertion that the USACE resolved the stone geometry issue-also known as the "geometry bust"-as early as August 14, 2012. See Defs.' Rebuttal at ¶ 212.
72. Instead, the record supports ACC's contention that the "geometry bust" issue was not resolved by the USACE until March 21, 2013. Compare Pl.'s Ex. 105 (ACC letter dated August 17, 2012, noting that ACC is "still waiting on many decisions and resolutions ... associated with [the geometry bust]"), with Pl.'s Ex. 43 at 262 (March 21, 2013, USACE response to RFI No. 122, memorializing that teleconferences held on March 11 and 14 to "address [c]ontractor stone issues" and that on March 19, 2013, "[Hirani was] told via email and phone call that [the comments in RFI] are acceptable").
73. Until March 21, 2013, when the USACE responded to RFI No. 122, ACC could not cut the stone for cladding and coping in order to move forward on Option 1.
74. On March 26, 2013, Ed Hollander prepared a work plan for moving forward on Option 1 of the Project. Day 5 A.M. Tr. at 89:21-92:6; Pl.'s Ex. 139. This proposed Option 1 schedule estimated the stonework would be completed by the end of July 2013. Pl.'s Ex. 139 at 5.
FEBRUARY 2013 THROUGH MAY 2013 ON THE PROJECT
75. On or about February 14, 2013, the USACE sent Hirani a Cure Notice letter, requesting that Hirani show cause why the Prime Contract should not be terminated. Hirani responded to the USACE's letter by letter dated February 25, 2013. See Pl.'s Ex. 131.
76. On February 19, 2013, David Lussier, Hirani's newly installed on-site field representative, began working at the Project site. See Pl.'s Ex. 31 at 577; Pl.'s Ex. 30 at 813.
77. From February 24, 2013, through April 16, 2013, the National Cherry Blossom Festival and its subsequent two-day cleanup took place on the National Mall. Pl.'s Ex. 31 at 611-912.
78. As a result of the Cherry Blossom Festival, ACC was not able to perform work on the Project on and under 17th Street, as the road was required to stay open during the Festival. E.g. , id. at 612 (Hollander noting that ACC is "[n]ot allowed back into 17th Street to complete remaining work until after April 15, 2013"); see also Day 4 P.M. Tr. at 10:21-11:21 (Vogt explaining that during Cherry Blossom Festival, "[t]here was limited work allowed" and "no road work" could be performed on the Project because "the road has to remain open during Cherry Blossom time").
79. On March 4, 2013, the USACE paid Colonial, as surety, $285,947.84 for work performed by ACC between November 21, 2012, and January 4, 2013, as reflected in ACC's Payment Requisition No. 19. ACC actually had requested $368,107.46 under Payment Requisition No. 19, but the USACE withheld $100,000 from its payment.
80. By letter dated March 12, 2013, ACC informed Hirani that it would be out of productive work on the Project within three days due to Plaintiff and Hirani's inability to agree on the scope and price of the additional work Hirani had demanded.
81. By letter dated March 29, 2013, ACC sent Hirani a payment demand on Payment Requisition No. 19 for work ACC had completed at the site between November 21, 2012, and February 20, 2013, in the amount of $373,189.93. See Pl.'s Ex. 141. According to the letter, Hirani had last paid ACC on or about December 5, 2012, for work completed through November 20, 2012. Id. at 1. ACC complained that the amount due on Payment Requisition No. 19 remained outstanding, even though ACC understood that the USACE had approved the work for that time period and remitted payment. Id. at 3-4.
82. On April 2, 2013, a key meeting with all principals-Hirani, ACC, and Colonial-took place at National Park Services headquarters to discuss "open change orders, pay estimates not being paid, and moving forward on work and payments." See Pl.'s Ex. 31 at 828-29.
83. On April 10, 2013, David Lussier, Hirani's on-site Project Manager, quit. Pl.'s Ex. 31 at 884-885, 920; Day 2 A.M. Tr. at 120:21-22.
84. Following David Lussier's resignation from the Project, Hirani directed ACC to shut down field operations effective Monday, April 15, 2013, because the USACE and National Park Service would not allow field operations at the Project to continue absent competent field supervision provided by Hirani. See Pl.'s Ex. 146; Pl.'s Ex. 30 at 897.
85. The Project site was shut down from April 15, 2013, through April 22, 2013, due to Hirani's failure to provide competent field supervision. Pl.'s Ex. 30 at 897-902; see Pl.'s Ex. 147.
86. On April 22, 2013, Eric Hirani called Ed Hollander to tell him Hirani had hired an on-site supervisor and asked Hollander to provide an estimated start date so that the new on-site manager could be present. Hollander thereafter began calling crew members to restart the Project the next morning. Pl.'s Ex. 31 at 917-18.
87. Work on the Project resumed on April 23, 2013, when Rob Kraus began his first day as Hirani's new Field Representative and the ACC crew returned to the Project site. See Pl.'s Ex. 147; Pl.'s Ex. 31 at 919-20.
88. The record evidence does not support Defendants' assertion that ACC unilaterally shut down the Project site from April 15 through April 22, 2013. In letters to Hirani dated April 14, 2013, and April 22, 2013, Ed Hollander memorialized phone calls received from Eric Hirani informing ACC that the USACE and National Park Service would not allow work on the Project site to continue without a Hirani Field Representative present. See Pl.'s Exs. 146, 147. Copies of these letters were sent to Robert Franklin of the USACE and Wayne Nunziata of Colonial. See id. The substance of these letters is corroborated by Ed Hollander's Daily Reports, see Pl.'s Ex. 31 at 909-18, which reflect that no work was allowed on the Project site due to Hirani's failure to have approved supervision personnel on-site, id. Likewise, Ms. Stephen, as Hirani's on-site Contractor Quality Control Assistant, inputted daily Hirani's Quality Control Reports during this time period reflecting that there were "[n]o trades on site due to project shutdown until such time that a Hirani project superintendent is on site full time." See Pl.'s Ex. 30 at 897-902. Thus, Hirani's own records confirm ACC stopped work as ordered by the USACE.
89. Defendants have not offered any evidence that Hirani, Colonial, or the USACE rejected Hollander's characterization of the shutdown, orally or in writing, in response to Hollander's letters of April 14 or April 22, 2013, or the Quality Control Reports submitted by Ms. Stephen, to which Hirani and the USACE had access. If ACC in fact had shut down the work unilaterally, the court would expect there to be some contemporaneous documentary evidence to support that position. But Defendants presented no such records. The absence of such records in a heavily documented construction project leads the court to find that the USACE ordered the mid-April shutdown.
90. From April 24 through April 26, 2013, ACC excavated and cut the areas between the Naval Brass Channel and the 17th Street curb line on the east side. ACC began to cut the grade beam in these excavated areas from nine-feet wide to seven-feet wide, as required by Change Order BJ. Day 2 A.M. Tr. at 58:21-58:22; see Pl.'s Ex. 1 at 84; Pl.'s Ex. 31 at 921-26.
91. On April 26, 2013, ACC backfilled two of the excavated grass areas adjacent to the 17th Street curb line on the east side and covered the remaining areas with lumber and plywood for backfilling the following week. Pl.'s Ex. 172 at 1; Pl.'s Ex. 31 at 925-26.
92. By letter dated April 26, 2013, the USACE terminated the Prime Contract with Hirani for default on the Project. Pl.'s Ex. 150.
93. In the termination letter, USACE explained that it had "little confidence" that Hirani would finish the Project because Hirani had not: (1) taken necessary steps to improve its progress; (2) critical work onsite had ceased since March 22, 2013 "due to subcontractor management and nonpayment issues;" (3) Hirani "had not submitted periodic progress schedules;" and (4) Hirani failed to "fulfill commitments to meet milestone deadlines necessary for completing the remainder of the [Prime] Contract." Pl.'s Ex. 150.
94. The USACE further stated that Hirani's performance on the Project had been "beset with scheduling problems, a failure to pay subcontractors in violation of the Contract, and a demonstrated lack of diligence." Id.
95. The court finds that the USACE terminated Hirani because Hirani failed to submit periodic progress schedules in accordance with its obligations under the Prime Contract and the USACE Specifications incorporated therein; Hirani failed to timely pay its subcontractors, including ACC; Hirani failed to provide on-site management on the Project; and Hirani failed to diligently manage and supervise the Project.
96. The court's conclusion that Hirani was at fault for its own termination is bolstered by record evidence that, as of Hirani's termination on April 26, 2013, Hirani had received three interim unsatisfactory performance evaluations, a cure notice (sent merely days after Hirani entered into the Subcontract with ACC), and a show cause notice from the USACE. See Pl.'s Ex. 150. Notably, the April 8, 2011, Cure Notice identified many of the same deficiencies in Hirani's performance at that early stage that would eventually lead to Hirani's termination, including Hirani's failure to secure adequate Project Management staff to supervise the schedule and subcontractors as well as Hirani's late start on the Project. See Pl.'s Ex. 56.
97. ACC crew did not work on the Project site on Saturday, April 27 or Sunday, April 28, and heavy rains prevented work on Monday, April 29 and Tuesday, April 30, 2013. See Pl.'s Ex. 30 at 911-12; Pl.'s Ex. 31 at 927-30; Day 2 A.M. Tr. at 61:13-61:20.
98. On April 30, 2013, Ed Hollander learned that Hirani had been terminated by the USACE. See Pl.'s Ex. 31 at 929-30.
99. By letter dated April 30, 2013, Mr. Hirani rejected USACE's Termination for Default and requested a meeting with the USACE so that the termination could be reversed. Pl.'s Ex. 151.
100. On May 1, 2013, Eric Hirani called Ed Hollander and told him that Hirani was fighting the termination and that ACC was not to stop work at the Project site. See Pl.'s Ex. 31 at 931-932.
101. On May 1, 2013, Ed Hollander detailed the following in his daily report:
WORK PERFORMED TODAY: All crew members in today; Today, clean up lumber and WWF fabric mesh up off of East Side of project; Backfill remaining East Side Grade Beam cutting hole along curb line at East Side of project; Remove that covering lumber and plywood and take to staging yard; Install temporary fence at construction entrance East Side at end of day; finish grass cutting and cleanup of any trash or debris at East Side from construction operations; ... Cleanup West Side work area of any possible remaining minor construction trash from last week work; ... Holes were getting backfilled; safety fences were going up, and cleanup at site was occurring by ACC; Heavy equipment maintenance and cleanup and greasing in afternoon.
Id. at 932.
102. On May 1, 2013, ACC backfilled the excavated grass areas adjacent to the 17th Street curb line on the east side. Day 2 A.M. Tr. at 58:21-58:23; Pl.'s Ex. 30 at 913-14; see Pl.'s Ex. 1 at 88; compare Pl.'s Ex. 1 at 84 (April 26, 2013 photo), with Pl.'s Ex. 1 at 86-89 (May 2, 2013 photos).
103. On May 2, 2013, Hirani conducted a walk-through of the Project site with the USACE. Pl.'s Ex. 30 at 915; see also Pl.'s Ex. 1 at 86-89.
104. On May 2, 2013, Eric Hirani sent Ms. Stephen an email informing her to cease all work on the Project immediately, due to Hirani's termination. Pl.'s Ex. 152.
105. Ms. Stephen continued entering daily reports into the RMS quality control system in her role as Hirani's on-site Quality Control System Administrator until May 6, 2013. See Day 2 A.M. Tr. at 77:25-78:4.
COLONIAL'S COMPLETION OF THE PROJECT
106. After Hirani's termination, the USACE made a demand upon Colonial to satisfy its obligations under the Performance Bond. Day 4 A.M. Tr. at 17:1-17:3.
107. To finish the Project, Colonial retained the consulting firm Loewke Brill in June 2013. Day 4 A.M. Tr. at 18:22-18:23.
108. Michael Vogt is vice president of Loewke Brill, and in his role on the Project, Mr. Vogt met with Robert Franklin and John Devine of the USACE in July 2013 to discuss Hirani's termination, the status of the Project, and next steps to complete the Project. Day 4 A.M. Tr. at 20:20-21:16.
109. Loewke Brill subsequently considered the proposals of multiple potential contractors seeking to complete the Project, including proposals from ACC, Akima Construction, and Fort Myer Construction. Day 4 A.M. Tr. at 25:11-25:16, 26:16-26:23, 28:17-29:20.
110. As of September 30, 2013, the final Prime Contract price was $4,632,715.23. Defs.' Ex. 90, at 2. Twenty-seven modifications had been issued totaling $799,618.23, added to the original Prime Contract price of $3,833,097.00. Id. At that point, Hirani had earned but had not been paid $161,071.75. The contract balance was therefore $1,257,442.06. See id.
111. On September 30, 2013, the USACE and Colonial entered into a Surety Takeover Agreement. See id. at 2.
112. In the Surety Takeover Agreement, the USACE agreed to pay Colonial $1,257,442.06. See id.
113. Paragraph 10 of the Surety Takeover Agreement provides that the USACE would continue to assess liquidated damages at the rate of $1,379.00 for each calendar day of unexcused delay until performance is substantially complete. Id. at 4. As of April 26, 2013-the date of Hirani's termination-the official contract completion date, including excused delays, was July 27, 2012. Id.
114. The USACE ultimately never assessed liquidated damages against the contract balance. Day 4 P.M. Tr. at 75:6-75:7.
115. On September 30, 2013, Colonial entered into a subcontract with Akima Construction Services, LLC, in the amount of $1,326,244.00. See Defs.' Ex. 91 [hereinafter Akima Subcontract].
116. Akima agreed to furnish all labor, materials, services, and equipment to complete the agreed-upon scope of work. Defs.' Ex. 91, Ex. A.
117. Akima began performance of the Akima Subcontract on October 1, 2013. Defs.' Ex. 92.
118. Akima's scope of work included, among other things: excavating for grade beam, installing flowable fill, rebarring cage for the bank, installing cobblestone pavers in the roadway, digging holes and planting trees, removing construction fencing, and finalizing site cleanup. Defs.' Ex. 91, Ex. A.
119. Akima also performed the remainder of work left by ACC to complete Change Order BJ. See Defs.' Ex. 98 (line item 80-92).
120. To complete Option 1, Loewke Brill retained a fabricator called Structural Stone to fabricate the stone from the Carderock quarry. Defs.' Ex. 132.
121. To complete Option 1, Loewke Brill retained a stone installer called Lorton Stone, LLC, to install the wall cladding, coping stone, and pavers. See Defs.' Ex. 111.
FINDINGS AS TO WITNESS CREDIBILITY
122. Irene Stephen is a co-founder and owner of ACC and a cost accounting consultant for heavy and highway civil construction contractors. She testified as both a fact witness and a cost accounting expert in the heavy and highway civil construction contracting industry.
123. Ms. Stephen has been working as a cost accountant in the heavy and highway civil construction contracting industry for 45 years. See Pl.'s Ex. 166.1. Ms. Stephen is certified by the USACE in Construction Quality Management for Contractors. See Pl.'s Ex. 166.2.
124. Ms. Stephen worked as Hirani's "Alternate Contractor Quality Control System Manager" and "Quality Control System Administrator" for the Project. In that full-time role, Ms. Stephen was expected to maintain a presence at the Project site; to assist with the scheduling, reviewing, checking, and certifying of all submittals and shop drawings; and to draft and submit daily logs memorializing the status of the Project site, known as "Contractors Daily Quality Control Reports," or QCRs. See Pl.'s Ex. 77 at 16-18; see also Pl.'s Ex. 30.
125. As a fact witness, Ms. Stephen testified about her personal knowledge and observations as Hirani's on-site Contractor Quality Control Administrator from the time Hirani and ACC executed the Subcontract to the end of ACC's presence on the Project site.
126. The court found Ms. Stephen's testimony as a fact witness to be credible. Ms. Stephen possessed a strong memory and excellent recall of the events, which she witnessed first-hand as a representative of Hirani on the Project. Ms. Stephen is the only witness called during trial who was present on the Project site nearly every day, and the court found her testimony regarding progress on the Project site to be reliable and helpful. To the extent that Ms. Stephen's testimony regarding the state of affairs on the Project may be biased by her interest in the outcome of the litigation, the court is assured that the testimony of Ms. Stephen it relies on is also substantiated by record evidence admitted at trial and other witness testimony.
127. As an expert witness, Ms. Stephen offered her opinion on the reasonable markup for the highway and heavy construction industry and project overhead in the District of Columbia area from 2011 to 2013. Ms. Stephen further offered her opinion as to the reasonable value of Ed Hollander's services as ACC's on-site supervising Project Manager. Day 1 A.M. Tr. at 52:23-53:3.
128. The court found Ms. Stephen's testimony as an expert witness to be credible.
129. Jitendra Hirani is the president of Hirani. Mr. Hirani testified as a fact witness.
130. At trial, Mr. Hirani testified as to his personal knowledge and observations from the time Hirani first bid on the Project until Hirani's termination by the USACE.
131. Generally speaking, the court found Mr. Hirani not to be credible or helpful, certainly relative to Ms. Stephen. Mr. Hirani was defensive and hostile in answering questions posed by ACC's counsel on direct examination, and often responded that he could not recall or did not remember key events central to the dispute between Hirani and ACC and to Hirani's termination from the Project. Mr. Hirani spent little time at the Project site, and there was little documentary evidence presented to corroborate Mr. Hirani's version of events.
132. Mr. Hirani testified that he personally asked ACC to submit scheduling information "50 to 100 times" and that, each time, ACC refused to submit the information upon demand, as required by the Subcontract.
133. The court does not credit Mr. Hirani's testimony with regard to ACC's role in the scheduling of the Project. Mr. Hirani was unable to articulate how and when he asked ACC for these scheduling updates, nor how and when ACC rejected or ignored his requests. Moreover, Mr. Hirani's assertion that he unsuccessfully asked ACC for scheduling information "50 to 100 times" is unsupported by any record evidence, such as correspondence or emails with ACC. The first such correspondence is dated February 18, 2013, almost two years after the parties entered into the Subcontract. The lack of such records, when the Project otherwise was heavily documented, leads the court to find that ACC did not refuse to submit scheduling information as claimed by Mr. Hirani.
134. Michael Vogt is an executive vice president of the construction consulting firm, Loewke Brill Consulting Group. Mr. Vogt became involved in the Project after Hirani was terminated by the USACE, at which time Colonial hired Loewke Brill to assist in the Project's completion in or around June 2013. Day 5 A.M. Tr. at 11:22-12:8, 16:18-18:15. On the Project, Mr. Vogt served as the Quality Control System Manager for Colonial. Day 5 A.M. Tr. at 81:21-82:12. Mr. Vogt testified as a fact witness.
135. As a fact witness, Mr. Vogt testified about his personal knowledge and observations about the completion of the Project following Hirani's termination, including the status of the Project after ACC left the site, and the hiring of Akima Construction and other subcontractors to complete the Project.
136. The court found Mr. Vogt to be a credible witness. Mr. Vogt was a forthright and honest witness, who gave detailed testimony regarding the events he witnessed firsthand after Hirani's termination until Colonial's eventual completion of the Project.
137. Fred Ricky Janeiro is the president of Roubin & Janeiro, d/b/a Janeiro, Inc. Janeiro is a local stone contractor that furnishes and installs natural stones.
138. The court found Mr. Janeiro to be a credible witness. Mr. Janeiro testified honestly and helpfully regarding ACC's work on Option 1, Janeiro's involvement in locating suitable stones for cladding and coping of the permanent levee walls, and resolution of the geometry "bust."
139. Robert Franklin is a project engineer for the USACE who was tasked with management and oversight of the Project. Day 5 A.M. Tr. at 24:1-24:22. Mr. Franklin testified as a fact witness.
140. As a fact witness, Mr. Franklin specifically testified about progress (or lack thereof) on the Project from January through April 2013, as well as the decision to terminate Hirani. Mr. Franklin asserted that Hirani was terminated in part because ACC failed to progress the work on the Project beginning in mid-March 2013 due to disputes between ACC and Hirani regarding payment. Mr. Franklin also asserted that the USACE did not prohibit ACC and Hirani from continuing field operations at the Project due to inadequate on-site supervision by Hirani.
141. Mr. Franklin testified to the best of recollection, but he had difficulty accurately recalling details of the Project during the critical time period of mid-March 2013 through early May 2013. The record evidence refutes key portions of Mr. Franklin's testimony, most notably his testimony that (1) the USACE had not ordered ACC to stop work in April 2013 because of the absence of a Hirani on-site Project manager and (2) ACC had essentially ceased doing productive work during this period without cause. The court therefore does not credit Mr. Franklin's testimony to the extent it was inconsistent with record evidence.
142. Although he did not testify, the court accepted for their truth statements made by Eric Hirani, as reflected in correspondence prepared by ACC or in ACC's Daily Reports. See supra ¶¶ 86, 88, 100, 104. As discussed below, ACC's records are admissible under the business records exception, see Fed. R. Evid. 803(6), and Eric Hirani's statements contained therein are not hearsay and are admissible under Federal Rules of Evidence 801(d)(2)(C) and (D).
DOCUMENTS RELIED ON BY THE COURT
143. In making its findings of fact, the court has relied on the contemporaneous photos Ms. Stephen took of the Project site. See Pl.'s Ex. 1. According to Ms. Stephen, taking such photos was a regular practice of hers on construction jobsites, and she took photos of the Project site for ACC. See Day 2 A.M. at 43:18-44:7. The parties stipulated during trial that the dates superimposed on these photographs in yellow text derive from metadata within the photo file, and are therefore assumed to be correct. Day 2 P.M. Tr. at 32:11-33:9.
144. In making its findings of fact, the court has relied on Ed Hollander's Daily Reports documenting his activities as ACC's Field Superintendent on the Project and all work activities on the Project. See Pl.'s Ex. 31. The Daily Reports are admissible as business records of ACC. See Fed. R. Evid. 803(6) ; see also Equity Lifestyle Props., Inc. v. Fla. Mowing & Landscape Serv., Inc. , 556 F.3d 1232, 1243-44 (11th Cir. 2009) (holding that invoices based upon a foreman's daily reports were admissible as business records); Just Wood Indus., Inc. v. Centex Const. Co. , 188 F.3d 502, No. 98-1855, 1999 WL 606859, at *6 (4th Cir. Aug. 12, 1999) (holding that subcontractor's daily log book met the business records exception); Matador Drilling Co. v. Post , 662 F.2d 1190, 1199 (5th Cir. 1981) (holding that drilling company's daily reports were admissible under busin