The ASBCA’s November 2021 decision in Harry Pepper and Associates, Inc., No. 62038 et al. (3 Nov 2021) offers important guidance on the role of live testimonials in one of the most difficult aspects of claims for varying site conditions: proving that the actual site conditions were actually different from those expected.

The claims at issue in the case stemmed from a $36 million order for the restoration of NASA’s B-2 rocket test bed, which was built in the 1960s as part of the Apollo program and used to test Saturn V rockets. The restoration was necessary so that the B-2 mount could be used to test rocket vehicles for use in NASA’s new moon launch program, Artemis.

A series of claims at issue in the Commission’s proceedings related to the installation of steel reinforcements in a section of the test bed known as the “battleship”. Citing the FAR clause on differing site conditions as well as several alternative theories, the contractor claimed that the obstructions made it impossible to place the large steel reinforcing members using the access holes identified in the NASA construction drawings.

The Council rejected this request because the contractor failed to prove that the actual conditions of the battleship differed from those indicated in the tender documents. The Board placed great weight on the testimony of a key contractor witness who had served as NASA’s chief construction officer at the Stennis Space Center, where the B-2 test bed is located, before taking a position with of the contractor. Citing his own previous experience with the battleship, he testified that NASA’s specified access method was “doable”. Although some of the contractor’s employees described the battleship as a confusing “labyrinth”, the Board was satisfied that the labyrinth was listed in the tender documents and could easily have been discovered during a visit. routine on site prior to tender.

The Council, however, sided with the contractor on his request to recover the costs of cutting and welding the steel reinforcements to conform to the uneven walls inside the battleship. Again, the Commission relied on the evidence to reach its conclusion. The contractor’s key witness described how the actual conditions inside the battleship differed from those stated in the tender documents and how they made the job more difficult. According to the Commission, his testimony was “compelling”. Although the Board also found NASA’s main witness to be credible, the Board found his answers to cross-examination to be “defensive.” The Board actually cited his responses to questions regarding NASA’s failure to take field measurements that could have proven the battleship’s walls to be straight.

Finally, in an entirely separate claim, the contractor was unable to recover the alleged two inches of “thermal movement” of the existing B-2 testbed structure when erecting the steel structures. built above the test bed. Again, the Commission focused on the testimony of witnesses. The surveyor hired by the structural steel fabricator did not testify at the hearing and his written testimony interfered with the use of available surveys to prove that the structure had moved. The Commission was concerned that the twisting of the measuring tape used by another witness would make the measurements less accurate, and the contractor’s expert witness admitted that this was possible. Further, the contractor’s structural steel expert who testified was unable to support the contractor’s claim that the structure had shifted two inches. He claimed the structure had shifted “as much as three-eighths, maybe half an inch in some cases.” The Commission concluded that his testimony “hurt[plusquecelan’aaidé

La décision en Harry Poivre offre des conseils utiles sur l’utilisation des témoignages dans des cas de conditions de site différentes. Mais les leçons ici s’étendent également à d’autres théories du droit. Dans les affaires qui vont jusqu’au procès, la crédibilité des témoins est souvent un facteur clé dans la décision. Examinez la question tôt et souvent – lors de l’administration du contrat, lorsque vous préparez une demande d’ajustement équitable et lors d’une médiation ou d’autres négociations de règlement informelles.

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