Engagement Example 1. –Client: : ASA Enterprises, Inc., Jackson, MOClient’s Customer: Corps of Engineers, Vicksburg District.Client’s Contract : $4.5M Levee Enlargement, Fitler’s Bend, MSEngagement Time: May, 2003 to June, 2007

John Deere articulated-steer tractor pulling double self-loading 25-CY scrapers leaving the borrow pit at Fitler’s Bend

Issues: Was contractor’s plan for dewatering the borrow pits adjacent to the Mississippi River - up-river from Vicksburg some 40 miles, forested over

by large stands of timber, by a “just-in-time”, staged, timber clearing scenario allowing transpiration of the ground water to the atmosphere to continue until the latest possible time just before excavation of the earth material below - viable?

The Corps, between the bid and the NTP, unknown to the contractor who was in Missouri at the time, permitted, indeed, actually had already dealt for, the clearcutting of the merchantable timber by the lumber company from which it had secured the property. The bid specifications clearly stated that the timber clearing was under the control and the responsibility, of the successful bidder.

This was the first Government surety bonded prime contract ever by the contractor, of which the Corps was aware by its pre-award investigation. In the pre-award interview the Corps failed to notify ASA that it would clearcut the borrow pits.

Superior Knowledge and breach of good faith and fair dealing. Type I DSC.

ASA’s bid price was substantially below that of its competition. It might even be said, alarmingly so. ASA’s competitors on similar projects up and down the river were using off-road trucks and excavators, loading out saturated material from their pre-cleared pits, placing this material on the levee, with the result being extra time and effort spent discing and drying it. This was vastly more expensive than tractors and pans working ASA’s staged timber clearing plan.

I conducted an extensive FOIA production and examination, thoroughly examined the result and all other available contract documents, then formulated a REA for damages of $1.7Mil by means of extrapolation of earthwork excavation production from a similar project; a subcontract the client had successfully performed in the Memphis District up-river. The Measured Mile approach was impossible as it did not exist at Fitler’s Bend. The groundwater in the borrow pits rose dramatically after the Corps’ clearcutting – authenticating the drastic negative effect of the loss of transpiration of the live forest – before the contractor could get fully mobilized.

Meanwhile the contractor borrowed $1,000,000 from its supporting bank and completed the contract, after which he sold his entire equipment fleet and ceased all operations. The Corps denied all liability for destroying ASA’s operating plan; even the very existence of the transpiration dynamic, and litigation ensued on which from time to time I provided technical support for the client’s attorney.

The Court of Claims required mediation prior to trial. Unchecked by the presiding judge, the Corps postured and stonewalled, agreeing to pay only a paltry sum, as it sensed, correctly, the contractor could not endure the cost of trial and the possibility of appeal costs and time.

This is a cautionary tale of use by the Government of its overwhelming financial superiority over its small contractors, to win its case – and save “face” – ignoring the fact that doing so flew directly into the face of all actual and scientific facts, reasonable logic, Hornbook Law and even morality. It happens more often than anyone not in this business realizes.