United States District Court, D. Maryland, Southern Division
W. Grimm United States District Judge
a dispute between a general contractor and one of its
subcontractors on a federal construction project. The general
contractor, Baggette Construction, Inc.
("Baggette"), has filed a Motion for Partial
Summary Judgment, asking this Court to issue two findings as
a matter of law. It first seeks a finding that a bid proposal
submitted by the subcontractor, Baker DC ("BDC"),
before the parties executed a written subcontract was not
itself a part of the final agreement. It next urges the Court
to find that BDC is unable to produce evidence of a kind
necessary to prove damages for delay and disruption.
with Baggette as to the first issue and hold, as a matter of
law, that BDC's bid proposal is not a part of the
subcontract (though it may conceivably be admissible to
clarify ambiguities in the written agreement). I decline,
however, to declare at this stage of the proceedings that
BDC's attempts to establish damages in the manner of its
choosing are inadmissible. Baggette's motion is,
accordingly, granted in part and denied in part.
was the general contractor on a federally funded project to
renovate and expand a shopping center at Joint Base Andrews
in Prince George's County, Maryland. Baggette Mem. 1, ECF
No. 53-1. The dispute in this case concerns Baggette's
subcontract with BDC, which called for BDC to provide the
concrete needed for the project. See Compl. ¶
8, ECF No. 1.
submitted a bid proposal to Baggette on September 24, 2015,
outlining the work it would perform and proposing a price for
its services. See ECF No. 54-1. The proposal
included a list of "qualifications," one of which
stated: "B-DC's bid proposal is conditioned on the
parties reaching a mutually agreeable subcontract after
B-DC's review of all the relevant contract documents and
an opportunity to negotiate the subcontract's terms, if
any." Id. at 5. Two other qualifications
touched on scheduling matters. One stated: "This
proposal is priced based on 1 mobilizations [sic], an
estimated start date of November 1, 2015 and a specified
concrete duration of 13 working weeks from start to top-out,
assuming a standard 40-hour workweek (Monday through
Friday)." Id. at 4. A second added: "This
proposal is based on a timely mobilization. B-DC cannot
mobilize until there is a sufficient and continuous amount of
work to meet the productivities as bid." Id. at
revised its proposal four days later. See ECF No. 53-2. This
version contained the same three qualifications but increased
the expected duration of the project from 13 weeks to 16
weeks. Id. at 4.
two companies that submitted bids for the subcontract, BDC
offered the lowest price. See ECF No. 54-2. Baggette
responded to BDC via email on September 30, 2018, enclosing a
"letter of intent" to award the subcontract to the
company for $1, 269, 600. Letter of Intent, ECF No. 54-4. The
concluding paragraph stated: "A formal subcontract
agreement shall be forthcoming. Please proceed with all
submittals immediately." Id.
parties executed a written subcontract agreement on October
9, 2015, entitling BDC to $1, 282, 296 in exchange for its
work on the site. See Subcontract & Rider 1, ECF
No. 1-1. The writing did not specify how long BDC would have
to complete its work, but several provisions established
Baggette's control over the work schedule. Section 1, for
starters, explained that the work was "to be scheduled
by [the] Baggette Construction superintendent or project
manager as outlined in the construction schedule and as
updated." Id. Section 4 further specified:
The Subcontractor [BDC] shall commence the Work when notified
to do so by the Contractor and shall diligently and
continuously prosecute and complete the Work and coordinate
the Work with the other work being performed on the Project,
in accordance with those project schedules as may be issued
from time to time during the performance of the Work, and any
other scheduling requirements listed in this Agreement, so as
not to delay, impede, obstruct, hinder or interfere with the
commencement, progress or completion of the whole or any part
of the Work or other work on the Project.
Id. at 2. Section 13, likewise, obligated BDC to
"keep up the general progress of the Project in
accordance with a Progress Schedule as prepared by the
Contractor or their representative or as otherwise might be
communicated." Id. at 5.
agreement's final provision, Section 24, was an
integration clause. See Id. at 9. This stated in
relevant part: "This Agreement constitutes the entire
agreement between the parties hereto. No oral representations
or other agreements have been made by Baggette Construction
except as stated in the Agreement." Id.
subsequently executed rider clarified the parties'
obligations with regard to scheduling. See Id. at
13-15. In particular, one provision stated:
Notwithstanding any of the above, any modifications to the
Project Schedule shall be reasonable and normal for the type
of Work of this agreement, such that Scheduled durations for
the Subcontractor's work shall not be significantly
changed. Any such modifications that significantly change the
Subcontractor's scheduled durations and impact the cost
of the Work shall cause the Contractor to issue a change
order for a time extension and for reimbursement of the
reasonable cost of the impact, unless agreed by both parties.
Id. at 13. A related provision expressly limited
Baggette's right to recover damages for any delays that
might be attributable to BDC. See Id. at 14. This
provision stated in part: "Delays incurred by the
Subcontractor, beyond its control shall be considered
excusable delays and result in reasonable time extensions and
reimbursement of related costs, to the Subcontractor, unless
such delays are beyond the control of Baggette Construction,
i.e. weather." Id.
work - at least, from BDC's perspective - did not proceed
as planned. As of July 2018, nearly three years after the
parties executed the subcontract, BDC's work on the site
was not yet complete. See ECF No. 55-2. A Baggette
executive acknowledged, at that point, that BDC had
"been on the job periodically for two-plus years from
time to time." Id.
brought this lawsuit against Baggette in July 2017, asserting
two claims of breach of contract. See Compl.
¶¶ 25-37. Count I of the Complaint alleged that
Baggette had "seriously delayed and disrupted" its
work on the site, costing the subcontractor several hundred
thousand dollars. Id. ¶ 6. Count II accused
Baggette of failing to pay for additions or revisions to the
scope of BDC's work once the project was under way,
despite BDC's submission of several potential change
orders ("PCOs"). See Id. ¶¶ 17-19.
BDC filed a separate suit against the Hartford Fire Insurance
Co., the surety for Baggette's prime contract on the
federal construction project. See Compl., United
States ex rel. Baker DC, LLC v. Hartford Fire Lns. Co.,
No. 17-2122-PWG (D. Md. July 27, 2017), ECF No.' 1. I
consolidated the two cases in an October 11, 2017 letter
order. ECF No. 21.
ensuing Motion for Partial Summary Judgment asks this Court
for two findings as a matter of law. See Baggette
Mem., ECF No. 53-1. It first seeks a finding that BDC's
bid proposal is not itself a part of the subcontract.
See Reply 8, ECF No. 56. It next seeks a finding
that BDC cannot establish claims for delay and disruption
damages because it has determined not to present expert
testimony or a "critical path method"
parties have fully briefed their arguments. See ECF
Nos. 53-56. No hearing is necessary. See Loc. R.
judgment is proper when the moving party demonstrates -
through "particular parts of materials in the record,
including depositions, documents, electronically stored
information, affidavits or declarations, stipulations .. .,
admissions, interrogatory answers, or other materials" -
that "there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of
law." Fed.R.Civ.P. 56(a), (c)(1)(A); see Baldwin v.
City of Greensboro, l\A F.3d 828, 833 (4th Cir. 2013).
If the party seeking summary judgment demonstrates that there
is no evidence to support the nonmoving party's case, the
burden shifts to the nonmoving party to identify evidence
that shows that a genuine dispute exists as to material
facts. See Celotex v. Catrett,477 U.S. 317, 324
(1986). A "genuine" dispute of material fact is one
where the conflicting evidence creates "fair
doubt"; wholly speculative assertions do not create
"fair doubt." Cox v. Cry. of Prince
William,249 F.3d 295, 299 (4th Cir. 2001); see also
Miskin v. Baxter Healthcare Corp.,107 F.Supp.2d 669,
671 (D. Md. 1999). The existence of only a "scintilla of
evidence" is not enough to defeat a ...