CONTACTS 
0201 - Corps of Engineers, SFD                                                                                                                                            O-00000632 0302
020101 - Mr. Herb Cheong,; Project Manager
020102 - Project Management Division
0202 - Corps of Engineers, SFD                                                                                                                                            O-00000632 0101
020201 - LTC. Thompson; District Engineer
0203 - Corps of Engineers, SFD                                                                                                                                            O-00000632 0202
020301 - Mr. Thompson F. Keesling, Architect; Assistant Chief
020302 - Construction Operations Division
0204 - Corps of Engineers, Sausalito                                                                                                                                      O-00000645 0201
020401 - Mr. Leonard SooHoo, P.E.; Chief; Construction Service Branch
0205 - Corps of Engineers, SFD                                                                                                                                            O-00000632 0401
020501 - Mr. Thomas Benero; Chief
0206 - Port of Oakland                                                                                                                                                    O-00000647 0201
020601 - Mr. Rob Andrews; Engineering Project Manager
0207 - Port of Oakland                                                                                                                                                    O-00000647 0202
020701 - Mr. Ralph Gin;

SUBJECTS
Schedule Completion of Project, 961101
Time Extenstion 1 CD/8K CY
Schedule for Construction, 52.236-15
Changes in Quantities More than 15%

0706 -
0706 -    ..
0707 - Summary/Objective
0708 -
070801 - Follow up ref SDS 15 0000, ref SDS 14 0000.
070802 -
070803 - The Port offered ideas and background to prepare for meeting with
070804 - Durta at 1000 on planning completion of the work.  Procedures for the
070805 - Port to communicate through COE to the Contractor were confirmed, per
070806 - understandings reported at the Progress Meeting on 961029 of meeting
070807 - on 961024 between Port and COE.
070809 -  ..
070810 - This record includes discussions among COE and the Port of Oakland
070811 - that occurred during breaks in meeting with Dutra, when Dutra was out
070812 - of the room, ref SDS 16 line 90.
070813 -
070814 -      [See follow up submitting confirmation to Dutra of the meeting
070815 -      with it, ref SDS 17 line 83.]
070816 -
070818 -  ..
0709 -
0710 -
0711 - Discussion
0712 -
071201 - Tom Keesling explained the timeline developed yesterday in the
071202 - planning meeting, that shows key issues to be discussed with Dutra
071203 - this morning concerning remaining quantities to be dredged and the
071204 - time/resources required to perform the work, ref SDS 14 line 264.
071206 -  ..
071207 - A key condition arises from information in a recent survey prepared by
071208 - G B Star under contract to Dutra, and a subsidiary of Gahagen and
071209 - Bryant under contract to COE, showing that from inception, Dutra has
071210 - dredged approximately 3.1M CY, and there are approximately 4M CY yet
071211 - to be dredged, without regard to additional shoaling from the date of
071212 - the survey in October 1996 to the date of completion on 970427.
071213 -
071214 -
071216 -  ..
071217 - Shoaling Shown by Survey Reflects Annual Maintenance Dredging
071218 -
071219 - There was discussion that the difference between 6.2M CY found by the
071220 - predredge survey performed under contract section 02480-13, ref OF 7
071221 - line 1178, and the interim survey recently completed by G.B. Star and
071222 - reported at the Progress Meeting on 961029, ref SDS 12 line 720,
071223 - showing 7.1M CY, is attributed to shoaling.
071225 -  ..
071226 - There was discussion that the difference between the contract bid
071227 - quantities of 5.5M CY issued under amendment 0001, and the original
071228 - advertized bid quantities of 6.6M CY, ref OF 2 line 134 (see Claim
071229 - Team meeting 961003 ref SDS 2 line 95), may have reflected anticipated
071230 - shoaling over the 2.5 year period of the contract.  COE's history of
071231 - maintenance dredging appears to indicate that 300K to 800K of new
071232 - material accumulates annually.
071234 -  ..
071235 - There seemed to be discussion that the Port of Oakland has continued
071236 - to perform maintenance dredging within the project area during the
071237 - contract period, which nominally reduces the impact of shoaling on the
071238 - contract pay quantities.  Definitive quantification relative to
071239 - Dutra's contract scope was not discussed.
071241 -  ..
071242 - Consideration occurred of the contractor being paid at the contract
071243 - unit prices for the 6.2M CY but not for the 7.1M CY shown by the
071244 - recent survey, ref SDS 12 line 745, plus any additional shoaling that
071245 - continues to accumulate day-to-day.  Assuming an approximate 500K CY
071246 - of new shoaling will occur between the date of the recent survey and
071247 - the date of actual contract completion, the contract was examined for
071248 - payment of this additional material.
071249 - ..
071250 - Ralph Gin asked about the intent of provisions in 00800 para 1,
071251 - ref OF 5 3383...
071252 -
071253 -         [See explanation at Progress Meeting of need for traceability
071254 -         to original sources using Communication Metrics, ref SDS 18
071255 -         line 348.]
071256 -
071257 -      52.212-3 COMMENCEMENT, PROSECUTION, AND COMPLETION OF WORK (APR
071258 -      52.21984)
071260 -       ..
071261 -      The Contractor shall be required to (a) commence work under this
071262 -      contract within three (3) calendar days after the date the
071263 -      Contractor receives the notice to proceed, (b) prosecute the work
071264 -      diligently, and complete the entire work ready for use not later
071265 -      than eight hundred and forty (840) calendar days after the date
071266 -      of receipt by him of Notice To Proceed provided, that should the
071267 -      total quantity of material to be paid actually removed under the
071268 -      contract exceed the limit established in the Special Clause
071269 -      "VARIATIONS IN ESTIMATED OUANTITIES - DREDGING", additional time
071270 -      will be allowed at the rate of one (1) calendar day for each
071271 -      8,000 cubic yards in excess of the established limit. The time
071272 -      stated for completion shall include final cleanup of the
071273 -      premises.
071274 -
071275 - ...and para 18, ref OF 5 line 983,
071276 -      ..
071277 -      VARIATIONS IN ESTIMATED QUANTITIES - DREDGING
071279 -       ..
071280 -      Where the quantity of a pay item in this contract is an estimated
071281 -      quantity and where the actual quantity of material within the
071282 -      required dredging prism varies more than fifteen percent (15%)
071283 -      above or below the stated estimated quantity within the required
071284 -      dredging prism, an equitable adjustment in the contract unit
071285 -      price will be made upon demand of either party. The equitable
071286 -      adjustment will be based upon any increase or decrease in costs
071287 -      due solely to the variations above one- hundred fifteen percent
071288 -      (115%) or below eighty-five percent (85%) of the estimated
071289 -      quantity within the required dredging prism. Any equitable
071290 -      adjustment in the contract unit price will also apply to that
071291 -      part of the actual quantity of allowable overdepth material above
071292 -      one-hundred fifteen percent (115%) or below eighty-five percent
071293 -      (85%) of the estima- ted quantity.
071294 -
071295 - ...and section 02480 para 13 and 14 dealing with surveys, measurement
071296 - and payment, including shoaling.
071298 -       ..
071299 -      02480 para 13
071300 -
071301 -      The Contractor will perform a predredge survey prior to
071302 -      commencement of dredging for the entire project and postdredge
071303 -      surveys upon completion of each polygon for acceptance or as
071304 -      otherwise approved by the Contracting Officer. After the
071305 -      completion of all dredging work, the Contractor shall perform a
071306 -      final postdredge survey for the entire work to determine if any
071307 -      shoaling has occured after the polygons were accepted as approved
071308 -      by the Contracting Officer. All polygons found to be in
071309 -      compliance with the contract requirements will be accepted
071310 -      finally and be measured for payment as stated in Paragraph
071311 -      "MEASUREMENT AND PAYMENT", subparagraph "Measurement for Payment"
071312 -      hereinbelow. If the postdredge surveys data indicates that the
071313 -      project is not to the depth required in some or all of the
071314 -      polygons, then the Contractor shall resume dredging within seven
071315 -      calendar days after completion-of the field survey work to
071316 -      complete the work down to project depth. The Contractor shall
071317 -      perform additional surveys as required until the work is complete
071318 -      at no additional cost to the Government. When the polygons are
071319 -      found to be in satisfactory condition, they will be accepted.
071321 -       ..
071322 -      02480 para 14
071323 -
071324 -      14.1     Measurement for Payment. Measurement for payment of the
071325 -      total amount of material dredged will be made based on the cubic
071326 -      yards of material in-place, by computing the volume between the
071327 -      bottom surface shown by soundings of the Contractor's survey
071328 -      taken before dredging and the bottom surface shown by soundings
071329 -      of the final survey compared with the neat line template, using
071330 -      the average-end-area method. This quantity shall include
071331 -      excavation performed within the allowable overdepth limits and
071332 -      exclude excessive dredging as specified under paragraph
071333 -      "OVERDEPTH AND EXCESSIVE DREDGING".
071335 -       ..
071336 -      14.2     The contract drawings represent conditions existing on
071337 -      the date of the survey shown on the drawings and are for
071338 -      information purposes only. The pre-dredge survey performed by the
071339 -      Contractor will be used in determining quantity of material for
071340 -      payment. Determination of quantities removed and the deductions
071341 -      made therefrom to determine quantities by in-place measurement to
071342 -      be paid in the area specified after having once been made will
071343 -      not be reopened, except on evidence of collusion, fraud or
071344 -      obvious error. No payments will be made until all computations,
071345 -      field notes and drawings are received for progress payment.
071346 -
071347 -      .
071348 -      .
071349 -      .
071350 -      ..
071351 -      These prices and payments shall constitute full
071352 -      compensation for predredge and postdredge surveys, progress
071353 -      payment surveys, quality control surveys, barge filling area
071354 -      surveys, dredging and disposing of all materials including
071355 -      required and allowable overdepth, all in accordance with the
071356 -      drawings and specifications.
071358 -       ..
071359 -      14.4     Shoaling. Shoaling occurring within the project limits
071360 -      after acceptance of any polygon and prior to the completion of
071361 -      the contract shall be removed if directed by the Contracting
071362 -      Officer. Such work will be subject to the "CHANGES" clause.
071363 - ..
071364 - There was discussion that these provisions may require the
071365 - Contractor to remove at no additional cost to the government material
071366 - that shoals into the work area between the date of the predredge
071367 - survey, and the date of the acceptance survey, which in some cases is
071368 - 2 years later, and that time extensions are predicated on increases of
071369 - 15% above a bid item amount use the predredge survey as a baseline.
071370 -
071371 -      [See where this opinion was conveyed to the Contractor, ref SDS
071372 -      16 line 320.]
071374 -       ..
071375 -      [See meeting with Port re its 961122 memo and meeting with
071376 -      Contractor on 961126, ref SDS 19 line 87.]
071378 -  ..
071379 - Port of Oakland Assisted in Formulating Contract Provisions
071380 -
071381 - Rob Andrews noted that he contributed to preparing COE contract
071382 - requirements in either or both sections 02480 para 13 and 14.  There
071383 - was discussion that Chris Shields is reviewing these provisions, ref
071384 - SDS 8 line 167.  Rob recalled that Chris was not involved in the
071385 - original formulation of the provisions, and the underlying objectives
071386 - and implementation intended.  There seemed to be information developed
071387 - that COE engineers who prepared these provisions have left the
071388 - organization, except possibly Ken Khun.
071389 -
071390 -
071392 -  ..
071393 - Disclosure of Contingent Quantities for Annual Maintenance Dredging
071394 -
071395 - Assuming the intent was for the Contractor to include an allowance to
071396 - dredge annual shoaling material which is typically performed under a
071397 - contract for Maintenance Dredging, then what basis was the bidder to
071398 - determine the quantity?  One basis would be the historical record of
071399 - annual maintenance dredging.  What other process or method could the
071400 - contractor use to calculate the outlay to perform 2M additional yards
071401 - for a 2.5 year period?
071402 -
071403 -     [See COE team analysis, ref SDS 14 line 272.]
071405 -  ..
071406 - Was it intended to perform annual Maintenance Dredging under the
071407 - contract to deepen the Oakland Harbor to -42' MLLW, and not state this
071408 - to bidders, but rather require them to include the cost of dredging 2M
071409 - additional cubic yards for the price of dredging 5.5M CY?
071410 - ..
071411 - Was it intended for bidders to determine independently there
071412 - would be 36% more material to dredge than requested by the bid
071413 - documents?
071415 -  ..
071416 - If the 5.5M CY value reflects a decision to remove annual shoaling
071417 - from the pay quantities, since it may have been seen to more properly
071418 - belong to the budget for annual maintenance dredging, and if the
071419 - shoaling today is actually 500K CY greater than the 6.6M original pay
071420 - quantity, what basis were bidders to have calculated the actual amount
071421 - of shoaling to include in their bids?
071423 -  ..
071424 - COE's superior knowledge of the information required to calculate
071425 - shoaling may warrant consideration with respect to determining the
071426 - proper accounting for this part of the work.  Timely analysis of this
071427 - matter may improve chances of minimizing ultimate cost to the
071428 - government.
071429 -
071430 -
071432 -  ..
071433 - Additional Time Linked to Payment for Additional Yardage
071434 -
071435 - Rob Andrews drew attention to the provisions in section 00800 para 1,
071436 - FAR 52.212-3, which states:
071437 -
071438 -       The Contractor shall be required to (a) commence work under this
071439 -       contract within three (3) calendar days after the date the
071440 -       Contractor receives the notice to proceed, (b) prosecute the
071441 -       work diligently, and complete the entire work ready for use not
071442 -       later than eight hundred and forty (840) calendar days after the
071443 -       date of receipt by him of Notice To Proceed provided, that
071444 -       should the total quantity of material to be paid actually
071445 -       removed under the contract exceed the limit established in the
071446 -       Special Clause "VARIATIONS IN ESTIMATED OUANTITIES - DREDGING",
071447 -       additional time will be allowed at the rate of one (1) calendar
071448 -       day for each 8,000 cubic yards in excess of the established
071449 -       limit. The time stated for completion shall include final
071450 -       cleanup of the premises.
071451 - ..
071452 - Section 00800 para 18 states at ref OF 5 line 983:
071453 -
071454 -       Where the quantity of a pay item in this contract is an
071455 -       estimated quantity and where the actual quantity of material
071456 -       within the required dredging prism varies more than fifteen
071457 -       percent (15%) above or below the stated estimated quantity
071458 -       within the required dredging prism, an equitable adjustment in
071459 -       the contract unit price will be made upon demand of either
071460 -       party. The equitable adjustment will be based upon any increase
071461 -       or decrease in costs due solely to the variations above one-
071462 -       hundred fifteen percent (115%) or below eighty-five percent
071463 -       (85%) of the estimated quantity within the required dredging
071464 -       prism. Any equitable adjustment in the contract unit price will
071465 -       also apply to that part of the actual quantity of allowable
071466 -       overdepth material above one-hundred fifteen percent (115%) or
071467 -       below eighty-five percent (85%) of the estima- ted quantity.
071468 - ..
071469 - There seemed to be discussion that these provisions taken
071470 - together could be construed to mean the contractor is awarded
071471 - additional time to complete the work for the purposes of assessing
071472 - liquidated damages, based on whether the quantity dredged for a
071473 - particular bid item exceeds the limit of 15% set out in section 00800
071474 - para 18.
071476 -  ..
071477 - There was also discussion that the figures to be used for making this
071478 - calculation are the original bid quantity and the predredge survey,
071479 - which was also considered yesterday by the COE Claim Team, ref SDS 14
071480 - line 279.
071482 -  ..
071483 - Analysis was offered that since it appears that there are no bid items
071484 - for which the difference between the original pay quantity and the
071485 - predredge survey exceeds 15%, an interpretation could be that the
071486 - contractor is obligated to dredge an additional 2M CY with no
071487 - additonal time, and is to dredge approximately 7.6M CY for the price
071488 - of dredging 6.2M CY.  These ideas were considered yesterday by the COE
071489 - Claim Team, ref SDS 14 line 278.
071490 -
071491 -      [See work on spreadsheet to analyse quantities, ref SDS 20 line
071492 -      69, and COE Project Team meeting on Cure Notice, ref SDS 21 line
071493 -      125.]
071494 -
071496 -  ..
071497 - "Floating" Completion Date
071498 - --------------------------
071499 - Discussion indicated that the contract provisions result in an
071500 - inherent indefinite completion date, that can only be determined based
071501 - on a complex formula using the the final pay quantities and
071502 - interpretation of several different contract provisions.
071504 -  ..
071505 - Tom Benero discussed the advantages of conveying in a clear and direct
071506 - manner the completion date subject to liquidated damages, so that the
071507 - contractor can plan performance of the work.
071508 -
071509 -
071511 -  ..
071512 - Equitable Adjustment Applies Industry Practice for Competitive Bidding
071513 -
071514 - There was strong concensus to research the contract and objectives to
071515 - ensure an equitable adjustment results for the Contractor and the
071516 - Government.
071517 -
071518 - DE set the government's position as requiring the contractor to submit
071519 - a practical schedule for completing the work to be performed so that
071520 - determinations can be made with respect to entitlement to additional
071521 - time, adjustments in payment, if any, and coordinating acivities of
071522 - those using the facilities being improved under this contract, all as
071523 - required by the schedule provisions cited in COE's letter to the
071524 - Contractor dated 961028, ref DIP 1 line 33.
071525 -
071526 -
071528 -  ..
071529 - Port of Oakland's Order of Work Objectives
071530 -
071531 - Tom Keesling asked if the Port of Oakland management has any
071532 - preferences for performing the work with respect to sequence, per ref
071533 - SDS 14 line 268.
071534 -
071535 - Ralph Gin reported on inquiries by representatives of Dutra Dredging
071536 - which were outside the contract line of communication of COE.  He
071537 - indicated Dutra gave indicatiions to the Port that it would follow a
071538 - sequence preferred by the Port if Dutra were paid additional funds.
071540 -  ..
071541 - Herb Cheong advised that COE does not intend to direct the Contractor
071542 - on its order of work except within the meaning of the contract
071543 - requirement for the Contractor to submit a "practicable" schedule.
071544 - ..
071545 - Rob Andrews advised it would be practicable for the Port to have
071546 - the work accepted on the basis of a location containing a berth and a
071547 - channel route to the ocean, such that a portion of the completed work
071548 - provides useable contigous routes in the harbor.
071550 -  ..
071551 - There were no other preferences offered that reflect the Port of
071552 - Oakland's needs and objectives.
071553 -
071554 -
071555 -
071556 -
0716 -

SUBJECTS
Scribe, Takes Notes, Does Not Speak
Welch Prepare Notes of Weekly Progress
Speaking at Meetings
Fear Communication Manager Replaces
Facilitate Meetings, Use SDS Record
70% of Day Wasted in Meetings, Only 10% of
Conversation Discursive, Speculative
Listening & Dialog Inadequate, Need

2210 -
221101 -  ..
221102 - DE Directs Communication Manager to "Be a Scribe"
221103 -
221104 - The meeting today became a dynamic exchange of views on the meaning of
221105 - contract provisions.
221106 -
221107 - I asked a few questions to clarify the meaning of discursive dialog
221108 - that entailed half-sentences, nods and unspecified references to the
221109 - contract and the job record.  I also offered some correlations with
221110 - the record to facilitate the meeting.
221111 -
221112 -     [See meeting on 961213, ref SDS 23 line 125, and later discovery
221113 -     of need for notes of the meeting, ref SDS 25 line 1017.]
221115 -  ..
221116 - At one point, DE seemed to indicate that these questions were
221117 - inappropriate by looking at me and saying:
221118 -
221119 -                        "Be a Scribe."
221120 -
221121 -     ...which seems to reflect the Commander's understanding of the
221122 -     Communication Manager role, as related by Tom Benero at ref SDS 7
221123 -     line 300.  It likely came from the meeting with Max at ref SDS 1
221124 -     line 111.
221126 -      ..
221127 -     [See follow up where DE affirmed that the "Scribe" does not speak,
221128 -     ref SDS 22 line 118; and, later cancellation of Communication
221129 -     Metrics, ref SDS 24 line 98.]
221130 - ..
221131 - Thereafter I asked no further questions.  Following the event, I
221132 - asked several speakers for clarifications and they provided
221133 - information on some matters and were unable to recall what they had in
221134 - mind on other matters.
221136 -  ..
221137 - During the meeting with Dutra, I passed notes to Tom Benero to support
221138 - his representations and ensure they covered the complete agenda.
221139 - During Tom Keesling's presentation of quantity and job schedule, I
221140 - passed a note to Tom Benero to suggest a break, which lead to much of
221141 - the above exchange outside the presence of Dutra.
221142 -
221143 -
2212 -