Brice Envrionmental Services Corporation v. Bhate Environmental Associates, Inc. et al
ORDER Granting Stay at Docket 6 . (CC: DQA) (Jan, Chambers staff)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
Case No. 3:15-cv-00146-RRB
UNITED STATES OF AMERICA, For
the Use and Benefit of BRICE
TO STAY AT DOCKET 6
ASSOCIATES, INC. and LEXON
Before the Court at Docket 6 is a Motion to Stay filed by Bhate Environmental Associates,
Inc. (“Bhate”) and Lexon Insurance Company (“Lexon”) (collectively “Defendants”). Defendants
seek an order staying this litigation pending completion of the Contract Disputes Act dispute
resolution process and, if necessary, pending completion of arbitration thereafter. Plaintiff Brice
Environmental Services Corporation opposes, in part, at Docket 17. Defendant filed a reply on
November 10, 2015, seven days after the deadline per the stipulated extended briefing schedule
granted by the Court at Docket 15. Plaintiff has moved to strike the reply while Defendants have
moved for leave to file the reply late. The Court agrees with Defendants and finds no evidence of
ORDER GRANTING DEFENDANTS’ MOTION TO STAY - 1
willful disregard by Defendants in the untimely filing nor any prejudice to Plaintiff by allowing
Defendants' reply to stand. Therefore Plaintiff's Motion to Strike Untimely Reply at Docket 21 is
DENIED and Defendants' Motion to Request Leave to File Reply Late at Docket 23 is
Brice performed soil remediation work as a subcontractor to Defendant Bhate
Environmental Associates, Inc. ("Bhate") for a large-scale soil cleanup project at the former, Cold
War-era radio station near Petersburg, Alaska. The project was known as the Duncan Canal Radio
Relay Station on Kupreanof Island in Alaska-Project No. 9130165 (the "Project"). The Project was
led by the United States of America through the Air Force Civil Engineer Center ("AFCEC"). The
parties agreed to an initial subcontract price to be paid to Brice of $3,605,350.00. Ultimately,
Plaintiff and Defendant Bhate were unable to complete the Project in the planned single season
and were forced to demobilize—largely due to inclement weather—until the 2015 season.
On January 6, 2015, Plaintiff submitted to Defendant Bhate a Request for Equitable
Adjustment ("REA") in the amount of $2,947,899.32 for compensation resulting from Defendant
Bhate's standby directives, changed and added scope, as well as other impacts caused by Defendant
Bhate's disruption and interference with Plaintiff's work.1 Plaintiff asserts that a majority of the
REA involves claims against Defendant Bhate directly and unrelated to the Owner, including
Defendant Bhate’s lack of experienced field staff, Defendant Bhate’s unsupported directives to
Docket 1 at 3.
ORDER GRANTING DEFENDANTS’ MOTION TO STAY - 2
Plaintiff to perform work out of sequence, and Defendant Bhate’s failure to perform its scope of
Subsequently, Plaintiff and Defendant Bhate agreed it was in the best interest of both
parties for Plaintiff's Subcontract to be terminated, Defendant Bhate would contract with another
subcontractor to perform the 2015 work, and Brice would reduce its REA by its anticipated 2015
season costs to a total REA amount of $1,111,008 plus interest and attorney fees. Defendant Bhate,
on behalf of both itself and its subcontractors, submitted a Request for Change Order (“RCO”) to
AFCEC on May 12, 2015.3 Plaintiff filed the present action with the Court on August 21, 2015,
alleging a breach of contract, a claim against payment bond under the Miller Act, and a violation
of the 32 U.S.C. § 3901, et seq. ("the Prompt Payment Act").
The Court's power to stay proceedings is “incidental to the power inherent in every court
to control the disposition of the causes on its docket with economy of time and effort for itself, for
counsel, and for litigants” and “must weigh competing interests and maintain an even balance.”4
In addition to the Court’s power to grant a stay, there are several statutes relevant to this matter.
A. The Miller Act
"The Miller Act represents a congressional effort to protect persons supplying labor and
material for the construction of federal public buildings in lieu of the protections they might receive
Docket 17, Exhibit B.
Landis v. North Am. Co., 299 U.S. 248, 254-55 (1936); see also Clinton v. Jones, 520
U.S. 681, 706 (1997), Patel v. City of Los Angeles, 594 F. App’x. 415, 416 (9th Cir. 2015).
ORDER GRANTING DEFENDANTS’ MOTION TO STAY - 3
under state statutes with respect to the construction of nonfederal buildings.”5 A general contractor
on a federal construction project is required to furnish a payment bond "for the protection of all
persons supplying labor and material in carrying out the work provided for in the contract.” 6 The
Miller Act then provides that a supplier or subcontractor contributing to the federal construction
project who "has not been paid in full within 90 days after the day on which the person did perform
the last of labor . . . may bring a civil action on the payment bond for the amount unpaid at the
time the civil action is brought and may prosecute the action to final execution and judgment for
the amount due."7 A subcontractor's failure to comply with the notice requirement is "fatal to a
Miller Act claim."8
B. Federal Arbitration Act
Federal Arbitration Act ("FAA") mandates arbitration whenever a contract provides for
claims to be submitted to arbitration and evidences a transaction involving interstate commerce.9
The principle purpose of the FAA is to "ensur[e] that private arbitration agreements are enforced
according to their terms" and embodying "a liberal federal policy favoring arbitration agreements,
notwithstanding any state substantive or procedural policies to the contrary."10
Ramona Equip. Rental, Inc. ex rel. U.S. v. Carolina Cas. Ins. Co., 755 F.3d 1063, 1067
(9th Cir. 2014) cert. dismissed sub nom. Carolina Cas. Ins. Co. v. Ramona Equip. Rental, Inc.,
135 S. Ct. 939 (2015) (internal citation omitted).
40 U.S.C. § 3133(b)(2).
40 U.S.C. § 3133(b)(1).
Ramona Equipment Rental, 755 F.3d at 1067.
9 U.S.C. § 2, see also Allied-Bruce Terminix Companies v. Dobson, 513 U.S. 265, 115
S.Ct, 834 (1995).
Sakkab v. Luxottica Retail N. Am., Inc., 803 F.3d 425, 434 (9th Cir. 2015) quoting AT&T
Mobility LLC v. Concepcion, 563 U.S. 333, 344–346, 131 S. Ct. 1740, 1748–49 (2011).
ORDER GRANTING DEFENDANTS’ MOTION TO STAY - 4
C. Contract Disputes Act of 1978
The Contract Disputes Act of 1978 (“CDA”) provides remedies for disputes involving
government procurement contracts.11 “To proceed under the CDA, an aggrieved contractor must
first present its claim to the agency Contracting Officer.”12 If the claim is denied, then the
contractor has two options: It can either (1) appeal to the governing agency board of contract
appeals (“ABCA”) pursuant to §§ 606 and 607(d), or (2) file suit in the Federal Court of Claims
pursuant to § 609(a)(1).13 Decisions of the ABCA may be appealed to the Federal Circuit.14
Pursuant to the Miller Act, Plaintiff was required to bring this action in federal court to
preserve its statutory rights. At the time of filing suit, more than ninety (90) days, but less than one
(1) year, had expired from the last date upon which Brice furnished labor, equipment, and materials
to the Project. Plaintiff has agreed to allow the Miller Act claims to be stayed, but opposes staying
arbitration of Plaintiff's direct claims against Defendants.15 The Court will therefore address the
Motion to Stay with regard to the direct claims between the parties.
A. Claims arising under General Contract and Subcontract intertwined
Plaintiff has argued that a stay in this matter by the Court, with regard to claims exclusively
between the parties, would be inappropriate in light of the arbitration agreement of the Subcontract.
The Court recognizes that the determination of whether an issue is to be decided by an arbitrator
41 U.S.C. §§ 601 et seq.
Southwest Marine, Inc. v. United States, 43 F.3d 420, 423 (9th Cir.1994); see 41 U.S.C.
Southwest, 43 F.3d at 423.
See 41 U.S.C. § 607(g)(1)(A).
Docket 17 at 1.
ORDER GRANTING DEFENDANTS’ MOTION TO STAY - 5
or the Court depends on the arbitration agreement. Under the Subcontract, the parties have clearly
indicated that the arbitrability of a particular claim or dispute falls within the scope of the
arbitrator.16 However, staying this matter pending the resolution of the Owner-related claims is not
a determination by the Court on the arbitrability of the underlying issues. While Plaintiff
characterizes the "vast majority" of its REA as being claims exclusively between the parties and
unrelated to the Owner, that allegation is not beyond debate.17 In fact, Defendants argue that what
Plaintiff asserts is Defendant Bhate’s "poor planning and coordination,” fails to recognize the
effect of Owner-directed scope changes and Owner-caused delays.18 The Court finds it entirely
plausible that some, if not all, of the impacts alleged by Plaintiff were the result of actions taken
by the Owner, ACFEC. However, the Court need not address the appropriate characterization or
assign fault for the actions that led to the impacts suffered by Plaintiff at this time. Suffice to say
that there is an intertwined relationship between the Owner-related claims and those that rest solely
between the parties. The intertwined nature of the all claims related to the Project supports a stay
of this matter.
B. Exhaustion of Contractual Remedies Required
The primary contract between Defendant Bhate and the AFCEC requires that disputes be
resolved through the procedures of the CDA. Plaintiff also acknowledges that Owner-related
claims attributable to ACFEC are passed through to ACFEC and Plaintiff "shall not maintain any
Docket 6, Exhibit A at 13 ¶ 15.1.
Docket 17 at 8.
Docket 20 at 4.
ORDER GRANTING DEFENDANTS’ MOTION TO STAY - 6
proceeding against [Defendant Bhate] with respect to the Owner-related claims until the Owner's
dispute resolution process is complete."19
For all other claims between the parties, the Subcontract itself requires the completion of
the dispute resolution process between Defendant Bhate and AFCEC, before Plaintiff can
"commence or maintain any action or proceedings" against Defendant Bhate "for any damages
caused by or arising, directly or indirectly, out of or in connection with any act, omission, default,
breach of interference" by AFCEC.20 While Plaintiff asserts that some of the claims are only
directly between the parties, they have not sufficiently demonstrated that their claims are without
connection to Defendant Bhate's dispute with AFCEC or that Defendant Bhate has failed to present
Plaintiff's REA under the CDA proceedings. On the contrary, the Court does find that while
Defendant Bhate may not have vigorously advocated for Plaintiff's total REA amount, Defendant
Bhate did sufficiently present Plaintiff's REA in its RCO presented to AFCEC. Because the
Subcontract requires exhaustion of the CDA procedures for Owner-related disputes and Plaintiff
has not demonstrated why this exhaustion is presently inapplicable, a stay of this matter is
appropriate pending the outcome of the Owner-related claims.
C. Prejudice, Judicial Economy, and Efficiency
Plaintiff alleges it will be prejudiced if a stay is granted as it will be forced to bear the brunt
of the economic strain of this REA until Defendant Bhate resolves the Owner-related disputes with
the AFCEC. The Court does not find this argument compelling. The economic strain of awaiting
resolution of the CDA procedures between Defendant Bhate and AFCEC is, while burdensome,
Docket 17 at 6.
Docket 6, Exhibit A at 7 ¶ 6.5.
ORDER GRANTING DEFENDANTS’ MOTION TO STAY - 7
still a reasonably foreseeable event under the Subcontract. Furthermore, denying the Motion to
Stay and allowing this matter to proceed would bifurcate the matter, creating parallel proceedings
involving many of the same facts and witnesses.
Additionally, it could potentially force
Defendants to take inconsistent positions in the simultaneous proceedings, supporting Plaintiff's
claims against AFCEC while defending against them in the arbitration between the parties. An
order staying this matter is supported not only by the contract, but also the promotion of judicial
economy and efficiency.
For the reasons outlined above, Defendants’ Motion to Stay at Docket 6 is hereby
GRANTED. Defendants' Motion to Request Leave to File Reply Late at Docket 23 is GRANTED
and Plaintiff’s Motion to Strike Untimely Reply at Docket 21 is DENIED. The matter is therefore
STAYED pending a final outcome from the CDA dispute resolution process between Bhate and
IT IS SO ORDERED this 9th day of February, 2016.
S/RALPH R. BEISTLINE
UNITED STATES DISTRICT JUDGE
ORDER GRANTING DEFENDANTS’ MOTION TO STAY - 8
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