DRAFT Struct Engineer_PWS Revision (6.2.26).docx

Performance Work Statement

Expert Consultant and Witness – Structural Engineering Armed Services Board of Contract Appeals (ASBCA) Litigation Support Claims Arising from Contract W912BU-20-C-0015, Aircraft Maintenance Hangar, Dover Air Force Base, Delaware

Date: June 3, 2026

1. BACKGROUND AND INTRODUCTION

The Contractor is responsible for providing the expert witness services to the U.S. Army Corps of Engineers (“USACE” or “Government”) as described in Section 2 of this performance work statement (“PWS”) below. The deliverables are intended to support the Government’s legal position concerning the merits of Contractor, AWFJV Western Federal Joint Venture’s (“AWFJV” or “Contractor”), construction claims and subsequent appeals pending before the Armed Services Board of Contract Appeals (“ASBCA”) under docket numbers 64060, 64109, 64372, 64391, 64419, and 64445. Optional services after the deliverables include sitting for a deposition by attorney representing AWFJV and providing expert witness testimony at an ASBCA hearing on this matter.

Contract Intent

The objective of this contract is to assist the Government in requesting and evaluating information potentially available to or in the possession of AWFJV and its subcontractors which the Contractor considers relevant for the purposes of preparing for litigation in front of the ASBCA is requested and evaluated. Included is:

· The identification of any additional information the Contractor requires to finalize an Expert Report for submission to the ASBCA as part of the Government’s defense of the claim;

· Assistance with identification of Government and AWFJV personnel whose deposition would be relevant to the evaluation of the facts of the claim;

· Finalization of the Expert Report for submission to the ASBCA;

· Support to the Government during trial at the ASBCA;

· Testimony as an Expert Witness at trial; and

· Post-trial briefs.

Contractor Responsibilities

The Contractor will provide and retain sufficient experienced staff to meet applicable case and project deadlines. Professional management is essential to the Contractor’s ability to perform this contract successfully. Resources must be employed and monitored to ensure that overall contract requirements are met, and that work is completed accurately, on schedule, and within the contracted costs.

The Contractor is responsible for providing services to assist the Government in the defense of the Appeal as described herein. The deliverables and work products are prepared in anticipation of litigation.

It is the Contractor's responsibility to comply with all applicable federal, state and host nation laws and regulations and to fulfill the objectives of this PWS in a manner consistent with any applicable and relevant Department of Defense and Army policy for the duration of the contract.

Primary Contractor personnel assigned to tasks associated with this contract will be specifically identified. The Contractor will make reasonable effort to assign personnel who are already familiar with the case to perform additional and ongoing work.

With the exception of the deposition requirements for the Contractor's expert witnesses, the final expert reports and rebuttals/sur-rebuttals, expert witness testimony, the Contractor, Contractor employees, agents, subcontractor(s), and subcontractor employees are retained solely to facilitate confidential attorney-client communication, to perform tasks in anticipation of litigation, and/ or to prepare for trial, and as such are not expected to otherwise serve as fact or expert witnesses and their communications and work product will be subject to the privilege protection under 26(b)(4)(B) of the Federal Rules of Civil Procedure (“FRCP”).

Key Personnel

The Government considers following Contractor expert as key personnel for the performance of this Contract: Mr. Jonathan Hatlee (“Expert”).

Mr. Hatlee will provide all required expert analysis, testimony, or other required assistance to the USACE Office of Counsel POCs. While other Contractor employees may assist Mr. Hatlee in the preparation of reports, the Expert will personally sign and remain professionally responsible for all aspects of analysis, reports, or testimony.

The Government considers Mr. Hatlee uniquely qualified and indispensable for the performance of this Contract. This Expert is key personnel and any substitution of Mr. Hatlee requires the express, prior written consent of the Contracting Officer, whose decision is at their sole discretion. Before requesting consideration of any substitute Expert, the Contractor will provide the Contracting Officer a copy of the Expert’s current CV, proof of licensure, and a list of all legal cases in which he or she provided expert testimony or consultation within the preceding 10-years. The Government is under no obligation to accept a substitute expert or to provide any justification for declining a substitute. A breach of this requirement will be a basis for the Government to terminate the contract.

The Contractor will further provide a contract manager who will be responsible for the performance of the work and applicable Contract administration. The name of this person and an alternate who will act for the Contractor when the manager is absent will be designated in writing to the Contracting Officer. The contract manager or alternate will have full authority to act for the Contractor on all contract matters relating to daily operation of this Contract. The Contractor’s Expert may also serve as its designated contract manager.

Work Products

All products generated under this contract, with the exception of Expert Reports are to be produced for and delivered to USACE Philadelphia District Office of Counsel and are considered attorney-client privileged information. All deliverables will be identified with the following:

Attorney-Client Privileged Attorney Work Product

Conflicts of Interest:

Organization Conflict of Interest: Organization conflict of interest (“OCI”) means that because of other past, present, or currently planned interests, activities or relationships, the Contractor is unable or potentially unable to render impartial, objective, and technically sound assistance and advice to the Government. The Contractor may review FAR Subpart 9.5 for examples of OCIs and Contractor bias concerns.

Personal Conflict of Interest: A personal conflict of interest means that because of past, present, or currently planned activities or relationships with other persons, an individual is unable or potentially unable to render impartial, objective and technically sound advice and assistance to the Government.

Determination of Conflicts of Interest: For purposes of assessing potential conflicts of interest, the Contractor is hereby on notice that the name of the case, parties, and attorneys representing the parties in this litigation are as follows:

The litigation supported includes six claim appeals docketed before the Armed Services Board of Contract Appeals (ASBCA) under consolidated ASBCA docket nos. 64060, 64109, 64372, 64391, 64419, and 64445, Appeal of AWFJV Western Federal Joint Venture (“AWFJV”) under Contract No. W912BU-20-C-0015 (“Contract in Dispute”) for the construction of an aircraft maintenance hangar at Dover Air Force Base, DE (“Hangar Project”). The Appellant also recently filed one final claim appeal that is not yet assigned a docket number.

· Parties associated with Appellant are AWFJV and its subcontractor Kinsley Steel, Inc. (“Kinsley”).

· The respondent in this case is USACE acting as contracting agent for the United States Air Force.

· The Government’s Designer of Record for the Project is Michael Baker, International.

· The attorneys representing AWFJV and its subcontractor are Larry Caudle, Jr., Brad C. Friend, Bob Symon, and Sabah Petrov.

· The assigned USACE Office of Counsel (“OC”) attorneys, Anna Kurtz and Aaron Inkenbrandt, represent the Government.

To the best of its knowledge and belief, the Contractor will inform the Contracting Officer in writing:

This information must be signed by an individual with authority to bind the Contractor. Based on the information provided, the Government will determine whether the Contractor has a conflict of interest. The Contractor will also be responsible for ensuring that all personnel assigned to perform the work do not have a conflict of interest.

Conflicts of Interest: The Contractor personnel providing services under this Agreement will comply with the following provisions with respect to conflicts of interest.

· The Contractor will not represent, enter into a business transaction, or contract with another person or entity in the same or substantially related matter in which that person or entity’s interests are materially averse to the interests of the USACE.

· The Contractor will not use information obtained under this contract for any purpose not covered by this PWS unless the Contracting Officer consents in writing after full and complete disclosure/consultation.

· The Contractor will not use any information obtained under the contract for financial gain or to obtain an unfair advantage over other contractors in a competition for USACE or other federal agency contracts.

Confidentiality and Non-Disclosure

The Contractor and its employees will not communicate with anyone other than the Contracting Officer, a designated Contracting Officers Representative, USACE OC attorneys, management, and staff concerning any work performed under the contract and/or information obtained by working on the contract.

The Contractor will restrict access to information to those with a need to know and ensure that all evidentiary privileges are retained. All personnel working under the contract are required to sign nondisclosure agreements. Failure to comply with these requirements will be a basis for terminating this contract.

Every individual assigned by the Contractor to work under this contract must execute a Non-Disclosure Agreement in accordance with DFARS 252.204-7014.

Access Restrictions

The Contractor will comply with all access and distribution restrictions applicable to information and documents it receives during the course of contract performance. Among these are legally privileged documents, classified information, documents marked Controlled Unclassified Information, For Official Use Only, Unclassified Controlled Nuclear Information, proprietary information, trade secrets, International Trafficking in Arms Regulations information, Privacy Act information, Personally Identifiable Information (PII), and other sensitive or confidential information.

Information Security

The Contractor must have the ability to receive and store sensitive or confidential, non-classified information on a cloud-based application meeting Federal Risk and Authorization Management Program (FedRAMP) impact level Moderate.

Compartmentalization

All information, in whatever form, pertaining to or related to this case will be separated or partitioned from information pertaining to or related to other cases. The Contractor is responsible for ensuring all information is compartmented and access to case specific information is limited to those individuals that are specifically assigned to that particular case. A breach of this requirement will be a basis for the Government to terminate the contract.

Fencing Requirements

When required by the Government, the Contractor will ensure that designated personnel do not have access to specified information.

Foreign Nationals

The Contractor will comply with applicable requirements restricting the access of foreign nationals to data and documents subject to such restrictions and comply with requirements of this document. Governments data and documents with such restrictions are typically marked as “ITAR Controlled Data” or “EAR Technical Data” on the face of the documents or headers of particular pages. If the Contractor is unclear concerning the restrictions applicable to any data or documents, the Contractor must ask the COR or Contracting Officer for direction and consent prior to release of the questioned data or documents to any foreign nationals.

2. DISPUTE BACKGROUND

An outside structural engineering expert is necessary to competently defend the Government against Count I of ASBCA docket number 64060 alleging that the Government breached its contract with AWFJV by providing ambiguous and defective specifications and drawings for the Project’s steel roof trusses.

This claim arose from a Government order to correct the deficient fabrication and installation of trusses C and D during the Hangar Project construction. In April 2022, Appellant’s subcontractor, Kinsley, installed the trusses with insufficient camber to prevent intrusion into a Unified Facilities Criteria (“UFC”) mandated clear zone above aircraft. The intrusions were between about 4-6”. Due the small size of the intrusion and high cost/time to correct, AWFJV objected to raising both trusses entirely. The Contracting Officer (“KO”) and Air Force declined to meet with the contractor or consider less costly alternatives than specific performance of the contract specs/drawings because the DoD already determined that the 10’ clearance was the minimum safe standard via the UFC.

AWFJV asserts the Government is liable for the increased costs of its subcontractor’s performance in fabricating the steel trusses because the defects were attributable to the Government’s allegedly ambiguous design. The Government’s position is that AWFJV is wholly at fault for any costs and delay associated with its own deficient performance.

AWFJV’s ambiguous specifications argument rests on the allegation that the Government’s inaccurate or incomplete drawings caused the contractor to reasonably misinterpret camber requirements for the bottom chord of the “upper truss” for trusses C and D. AWFJV supports its claim with a 118-page expert report prepared by structural engineering consultants, Cagley & Associates.

The Government disputes any notion that contract specifications or drawings depict an “upper” or “lower” truss with different camber requirements. Instead, the Government interprets the drawings and specifications as depicting unitary trusses and requiring the contractor to apply the same camber to the entire truss bottom chord even if a portion of the chord is at a different elevation.

AWFJV subsequently appealed the deemed denial of its claim to the ASBCA on January 23, 2025, seeking damages of $6,141,125.94 and 295-Day Time Extension. The hearing in the case is currently scheduled to begin September 6, 2027, and complete on or around September 21, 2027. Post hearing procedures may continue through December 2027. The key dates for the efforts under this PWS follow:

· Deadline to identify experts for purposes of conflict check: September 1, 2026;

· Deadline to Serve Initial Expert Reports: December 16, 2026;

· Deadline to Serve Rebuttal Expert Reports: February 12, 2027;

· Deadline to Complete Depositions: March 26, 2027;

· Close of Discovery: April 23, 2027; and

· Hearing at or near USACE, Philadelphia District: September 6–21, 2027.

3. GENERAL

The intent of the expert witness services under this Contract are to provide and present independent, expert analysis and conclusions in support of the USACE legal position in this litigation.

Description of Work and Services.

The Expert’s analysis and conclusions will form the Expert Report which the Government will submit to the ASBCA and the opposing party. The Report will also be the basis for a deposition by the opposing party and testimony before the Board at an eventual hearing.

The primary author of the Expert Report must have experience in this subject matter, i.e., structural engineering expertise, and possess sufficient experience to present information concerning related areas of expertise.

The Government may pursue a claim against either the original designer for the Government or AWFJV for any potential damages if the results of the Expert’s work indicate either may be liable for damages to the Government. Prospective Contractor must alert the Government to any conflicts of interest in examining the work of original designer, to be provided in discussions, or other Architect-Engineer firms or contractors involved in this dispute.

Any draft reports or other interim work products generated under this Contract are to be produced for and delivered to USACE Philadelphia District Office of Counsel and are considered attorney-client privileged information. All deliverables, with the exception of final reports, will be identified with the following marking:

Attorney-Client Privileged Attorney Work Product

Final reports should not contain privilege markings and will be presented to the opposing party as indicated.

It is the Contractor's responsibility to comply with all applicable federal, state and local laws and regulations and to fulfill the objectives of this PWS in a manner consistent with any applicable Department of Defense and Army policy for the duration of the contract.

4. ACCESS TO CONTRACT DOCUMENTS AND DISCOVERY

The Government will make available all necessary supporting project and contract documents to the Contractor at outset of the work and interim status conferences (Task 2 below) will be used to coordinate identification and transmission of any additional required documents.

Notwithstanding the prior paragraph concerning provision of documents, discovery in this case is ongoing and not scheduled to complete until April 23, 2027. The Government will forward relevant documents not provided to the Contractor at the outset of work as soon as practicable following receipt.

The Government will provide the Contractor provide or provide access to relevant documents containing controlled unclassified information, personally identifiable information, confidential commercial information from other contractors, and other sensitive information. The Contractor must safeguard these documents from outside disclosure and return or destroy these documents after completion of the work in accordance with DoD Instruction 5200.46.

5. DESCRIPTION OF WORK AND SERVICES

Task 1: Expert Report

The task is to develop and write an Expert Report stating the expert’s opinions, conclusions, and supporting analysis addressing the topics discussed below. The report must consider items and standards available in the applicable 2022 and 2023 calendar years or as otherwise specified in the Contract in Dispute.

The report is not required to quantify specific cost or time impacts, nor to address the cost and time impacts alleged by AWFJV, but instead to validate or refute AWFJV’s allegations that the Government caused the truss camber deficiencies by providing inaccurate or incomplete drawings. The report should, where possible, discuss the impacts in sufficient terms for a non-expert to understand the magnitude or severity of them (e.g. does it make the work easier or more difficult to perform, is it generally more costly or not, etc.)

When preparing the analysis, the Expert will use all applicable and generally accepted industry standards for structural engineering assessments, calculations, or related technical tasks. Where applicable, the report will include citations to any published industry or Government standards, codes, or other written guidance relied upon by the Expert when performing its analysis. These standards specifically include, but are not limited to, the Department of Defense’s Unified Facilities Criteria (“UFC”).

Where applicable, the Expert Report will address the validity of all facts, analyses, and conclusions offered in AWFJV’s expert reports prepared for its ambiguous specifications and drawings allegations.

Compliance with FRCP 26(a)(2)(B): The Expert’s report will comply with all minimum standards required pursuant to Federal Rule of Civil Procedure (“FRCP”) 26(a)(2)(B). These standards include:

1. A complete statement of all opinions the Expert will express and the basis and reasons for them;

2. The facts or data considered by the Expert in forming opinions;

3. Any exhibits that will be used to summarize or support opinions;

4. The Expert’s qualifications, including a list of all publications authored in the previous 10 years;

5. A list of all other cases in which, during the previous 4-years, the Expert testified as an Expert at trial or by deposition; and

6. A statement of the compensation paid to the Expert for the study/report and testimony in the case.

The Expert will submit its initial draft reports to the Office of Counsel POCs in the form of an unsigned document, to include applicable supporting exhibits pertinent to the analysis of Appellant’s expert report and allegations. Thereafter, the Expert will address any questions or concerns raised by the Office of Counsel POCs regarding the content or format of the initial draft within five (5) calendar days of receiving POC feedback. Upon receiving notice of the Government’s acceptance of the initial draft or amendments thereto, the Expert will submit to the USACE POC a final, signed version of the report in .pdf file format to include all supporting exhibits.

Task 2: Status Meetings and Conferences

This task includes all efforts and costs for recurring teleconferences and online meetings to discuss progress on performance of tasks and address questions. All meetings will be conducted “virtually” – in person meetings are not contemplated under this task.

As part of these meetings/conferences, the Contractor will provide and discuss draft sections of the report as they progress. This task also includes all conferences to discuss all versions of the report prior to submission of the final version to the ASBCA.

Average duration of the calls will be 30 minutes, occur bi-weekly, and may cover any aspect of this PWS. Status meeting and conferences may include other USACE expert witness contractors addressing cost or schedule which interface with the Contractor’s findings and analysis. As part of this task, additional meetings may be held at the request of either party to address topics relevant to the report, including any questions or findings which require further discussion.

Task 3 (Option 1): Preparation for and Deposition by Opposing Counsel of the Expert Report Author

This option task includes all effort to prepare for and sit for a deposition by Counsel for AWFJV concerning the Expert Report. The Contractor should assume the deposition may last for up three full days. The deposition may be videotaped and/or conducted virtually. Include the costs to participate in at least one, four-hour preparation session with agency counsel. The effort for this task should be priced under the assumption that Counsel for each party will choose a destination or virtual means that does not require the Contractor to travel.

Task 4 (Option 2): Rebuttal Report to Opposing Expert Report

This option task consists of all efforts to develop a Rebuttal Report to AWFJV’s Expert Report on the enclosures. Due to the uncertainty of the contents of that future Report and the analysis necessary to rebut the report the Contractor should assume a level of effort based on 250 labor hours. All performance standards in the preparation of a rebuttal report will conform to those specified in Task 1 above.

Task 5 (Option 3): Preparation for Testimony at ASBCA Hearing

This option task consists of all efforts to prepare for testimony at the ASBCA Hearing currently scheduled from September 6–21, 2027 (the Government portion will be the second week). This task should include preparing any demonstrative exhibits based on the Expert Report and Rebuttal Report, preparing any necessary coordination for IT-based presentations at the Board, and at least one, four-hour preparation session with USACE counsel in advance of direct testimony and cross examination.

Task 6

This option task includes all efforts of the Contractor to provide testimony before the ASBCA during the hearing. The anticipated testimony is expected to take no more than three days. The location of the hearing will be at or in the vicinity of the USACE Philadelphia District Headquarters at 1650 Arch St., Philadelphia, PA 19106.

6. COSTS

All tasks will be priced on a firm fixed price basis, inclusive of all labor, overhead, G&A, materials, and profit for all tasks.

7. PERIOD OF PERFORMANCE

The period of performance is as follows:

· Tasks 1 and 2: Final, signed initial Expert Reports must be delivered to the ASBCA by December 16, 2026. The Contractor must therefore provide the final, signed initial Expert Report no later than midnight Eastern Standard Time, on December 15, 2026. The Contractor must provide either a completed final draft or portions thereof to the Government for review prior to this date, subject only to the following: the Government must have a minimum of five work days to review the final draft, and the Contractor must be able to address any comments and incorporate any revisions prior to the December 16, 2026, deadline.

· Tasks 3–7: TBD upon award of Option(s). The Government reserves the right to award any option at any time during the performance period of the contract.

· The overall period of performance for the contract including options is 570 calendar days from the date of award.

8. INVOICES AND CONTRACT PAYMENT

The Government will pay the Contractor upon submission of proper invoices for services delivered and accepted. Deliverables of the contract must be accepted by the Government before payment will be made.

Invoices for payment will be submitted upon completion of tasks as outlined in the negotiated Payment Schedule of this contract. All invoices must reflect the contract number. The final invoice must be marked “FINAL.” Invoices with supporting documentation will be submitted electronically to: william.r.thievon@usace.army.mil and bjorn.t.hale@usace.army.mil

9. AUTHORITIES/TECHNICAL DIRECTION

All deliverables and correspondence under this contract, except for invoices are to be provided to Office of Counsel, Europe District as Attorney-Client Work Product unless directed otherwise.

The Contractor will take no direction that changes the terms and conditions of this contract or any change that impacts the cost, price or schedule from any Government employee or any other person, other than the Government Contracting Officer. Changes authorized by the contracting officer will be in the form of a written, official, signed modification to the contract action received by the Contractor before the Contractor will act upon those changes. When the Contractor believes direction has been given by persons, other than the Government contracting officer, that equate to a change to cost, price scope, or schedule, the Contractor will notify the Contracting Officer. Any direction given by any Government employee or any other person outside their authority must be reported to the contracting officer. Contracting Officer Representatives (CORs) are limited to the authorities stated in the COR appointment letters. If a COR is appointed under this contract, they will be appointed by written letter from the contracting officer to the Contractor and COR specific to this contract only. COR appointment letters from previous contracts are not valid for this contract.

10. USACE POINTS OF CONTACT

Office of Counsel: Aaron R. Inkenbrandt, Assistant District Counsel, aaron.r.inkenbrandt@usace.army.mil and Anna F. Kurtz, Assistant Chief Trial Attorney, anna.f.kurtz@usace.army.mil.

Contracting Officer: Domenic L. Sestito Jr., Domenic.L.Sestito@usace.army.mil

11. ATTACHMENT

1. Controlled Unclassified Information Non-Disclosure Agreement