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Baker DC, LLC v. Baggette Construction, Inc.

United States District Court, D. Maryland, Southern Division

March 28, 2019

BAKER DC, LLC, Plaintiff,


          Paul W. Grimm United States District Judge

         This is 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.

         I agree 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.


         Baggette 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.

         BDC 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 5.

         BDC 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.

         Of the 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.

         The 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.

         The 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.

         A 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.

         The 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.

         BDC 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").[1] 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.

         Baggette's 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" ("CPM") analysis.

         The parties have fully briefed their arguments. See ECF Nos. 53-56. No hearing is necessary. See Loc. R. 105.6.


         Summary 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 ...

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