DISMISSED WITH PREJUDICE: May 14, 2008
CBCA 122
MARTIN CONSTRUCTION, INC.,
Appellant,
v.
DEPARTMENT OF AGRICULTURE,
Respondent.
The case caption as the decision prints it. Every word is kept; the rule the Board draws around it is not text, so it is not repeated here.
John T. Gassmann, Valley City, ND, counsel for Appellant.
Margit Halvorson Williams, Office of the General Counsel, Department of Agriculture, St. Paul, MN, counsel for Respondent.
POLLACK, Board Judge.
Order
This appeal arises out of contract no. 50-6633-4-1, between Martin Construction, Inc. (Martin), and the United States Department of Agriculture, Natural Resources Conservation Service (NRCS). NRCS contracted with Martin for construction of a multi-purpose dam on the Square Butte Creek Watershed. In performing the work, Martin incurred additional costs to those it anticipated relating to excavation, particularly rock excavation, and submitted a claim. NRCS denied liability on the claim on the bases that the conditions encountered were represented in the contract, Martin did not encounter differing site conditions, compensation was under the variation in estimated quantities clause, and Martin failed to comply with notice provisions. Martin appealed NRCS’s denial to the Department of Agriculture Board _______________________________
2 CBCA 122
of Contract Appeals on July 31, 2006, and the matter was docketed as AGBCA No. 2006 149-1. The appeal was transferred to the Civilian Board of Contract Appeals, upon the consolidation of the civilian agency boards of contract appeals. The matter was redocketed as CBCA 122. After engaging in extensive discovery, the parties agreed to participate in mediation. A three-day mediation was held in Bismarck, North Dakota, on April 8-10, 2008. At the time of mediation, the claim was $1,050,135. Through mediation, the parties came to an agreement on compensation and entered into a Stipulation for Dismissal, globally settling all claims arising out of the contract. Under a cover letter dated April 30, 2008, the parties forwarded to the Board a Joint Motion to Dismiss, calling for dismissal of the appeal with prejudice.
Accordingly, this appeal is DISMISSED WITH PREJUDICE.
HOWARD A. POLLACK
Board Judge
This is a verbatim capture of the text layer of the Board's own document in Martin Construction, Inc., CBCA 122. Nothing is summarized or reworded, and the sections run in the order the Board wrote them. What the page shows and the text does not repeat is the pagination furniture: the page numbers and the rules the Board draws around its caption and under its signatures. The signatures are set back into the columns the Board prints them in, each judge under the name he or she signed, and the typed copy of that name the page carries beneath each signature is not repeated.