S&B Infrastructure, Ltd v. Fluor Federal Petroleum Operations, LLC

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
GALVESTON DIVISION
S&B INFRASTRUCTURE, LTD.,
Plaintiff.
V.
FLUOR FEDERAL PETROLEUM
OPERATIONS, LLC,
Defendant.
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CIVIL ACTION NO. 3:25-cv-00011
MEMORANDUM AND RECOMMENDATION
Pending before me is a motion for summary judgment filed by Defendant
Fluor Federal Petroleum Operations, LLC (“FFPO”). See Dkt. 28. On January 21,
2026, I heard oral argument on the motion. Having reviewed the briefing, the
record, and the applicable law, and considering the parties’ oral arguments, I
recommend that the motion be granted in part and denied in part.
BACKGROUND
This contract dispute arises out of a construction project at the United States
Department of Energy (“DOE”) Bryan Mound Strategic Petroleum Reserve site
(the “Project”). FFPO is the management and operating contractor for the DOE at
the Bryan Mound site.
On June 2, 2021, FFPO issued a Request for Offer (“RFO”) to prospective
bidders—including Plaintiff S&B Infrastructure, Ltd.—inviting them to submit an
offer for construction work related to the replacement of infrastructure, including
excavation and underground piping at the Bryan Mound site. Dkt. 28-6 at 4.
On July 6, 2021, FFPO issued Solicitation Amendment 002 to the RFO
which incorporated the following question from a prospective bidder and response
from FFPO:
United States District Court
Southern District of Texas
ENTERED
February 05, 2026
Nathan Ochsner, Clerk
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Dkt. 28-6 at 4.
On August 31, 2021, FFPO issued Solicitation Amendment 007 to the RFO,
which included the following change to the neat quantities provided in the price
summary sheet:
Note(s): 1) Due to some confusion on how excavations are being
estimated and bid, FFPO adjusted the [Unit Price Definitions (UPD)]
to only include the volume immediately above the excavation. This
means the sloping volume is not in the Pricing Summary quantities
and the subcontractor must define how much sloping and shoring are
required and include that amount in the cost associated with the
excavation. The file “Under Ground Pipe Excavation Before
and After Final” illustrates this difference. A Word file is attached
in track changes to highlight the changes; 2) Due to some confusion
on how excavations are being estimated and bid, FFPO adjusted the
UPD to no longer differentiate between excavation types. Mechanical,
hand, and hydro excavation are now combined into 1 excavation
method and the subcontractor must determine how much of each are
required based on subcontractor’s execution plan. A Word file is
attached in track changes to highlight the changes.
Dkt. 28-7 at 3.
On January 6, 2022, FFPO awarded the Project to S&B, and the parties
executed Subcontract Number 4500057169 with an effective date of December 20,
2021. 1 See Dkt. 28-8. That same day, S&B emailed FFPO asking for “[n]ative files
for drawings (iso’s, piping plans, P&ID’s, etc.) vs the large PDF’s that were
provided with the contract docs.” Dkt. 28-9 at 3. On January 21, 2022, Gary
Goolsby, the Bryan Mound Project Manager, responded for FFPO:
I wanted to clear up the request to provide [Pipe Component File
(PCF)] files for underground lines to a reduced audience. The PO
package has isometrics for above ground lines and piping plans for
1 The Solicitation Amendments are incorporated into the contract by reference. See
Dkt. 28-8 at 3–4.
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underground lines. FFPO did not want to create isometrics for
underground lines due [to] elevation uncertainties, underground
obstructions 	and 	such 	that 	would 	impact 	the 	isometric. . . . We
provided [a material takeoff (MTO)] for what we believe satisfies the
material requirements of the underground lines, but not the detailed
fabrication 	drawings. 	Could 	FFPO 	create 	these 	PCF? 	Yes, 	but
technically 	those 	fabrication 	drawings 	are 	in 	S&B’s 	scope.
Additionally, FFPO would have to create a full isometric to create the
PCF files, so it is not just a simple process.
To Summarize:
. . . .
3. FFPO can create isometric drawings, but that would require a back
charge against the PO. I am not sure S&B would be open to that.
Dkt. 28-11 at 3–4.
On 	June 	17, 	2022, 	S&B 	issued 	RFI-0093 	asking 	“FFPO 	to 	advise 	if
hydroexcavation can be the primary and initial source of identifying underground
obstructions in lieu of [ground penetrating radar (GPR)]. Note that findings during
hydroexcavation activities has [sic] been supplemented by visual confirmation by
S&B personnel and subcontractors.” Dkt. 28-12 at 2. On June 21, 2022, FFPO
responded: “If contractor continues to utilize both wanding and hydro excavation,
then the requierment [sic] for GPR will not be required.” Id. at 3. FFPO’s response
to RFI-0093 was signed by Pat Mikosky, Russell Harp, Scott Knoll, and Gary
Goolsby. See id.
A year later, on June 30, 2023, S&B emailed FFPO “files explaining the
excavation [quantities] at Bryan Mound.” Dkt. 28-13 at 3. That email stated that
S&B had “143,809 CY of excavation for pipe vs. 37,529 CY in the original bid.” Id.
On July 7, 2023, FFPO responded:
The 	37,529 	CY 	in 	your 	email 	below 	was 	noted 	as 	“Neat
Quantities” in the original bid. Regarding the contract, Part IV
Attachment 19 (UPDs), section 00.30.0003 (see screenshot below),
notes that the CYs given do not measure “Working space, compaction
after 	excavation, 	de-watering 	additional 	excavation 	for 	safety
requirements and/or any form of shoring.”. This is noting that our
quantities given do not account for any aspects that [S&B] must
implement to perform the work, and therefore are “neat quantities”.
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The change in values from 146,046CY to 37,529CY were to account for
this attachment and section. The 146,046CY was a preliminary
estimate of none [sic] neat quantities and had to be revised to reflect
a neat quantity and specified in the proposal and eventually contract.
Dkt. 28-14 at 2.
On July 17, 2023, S&B sent FFPO a “Notice of Differing Site Conditions.”
Dkt. 28-16 at 2. In that notice, S&B wrote that it had “encountered subsurface
physical conditions at the subject jobsite that differ materially from those indicated
in subcontract agreement” and asserted that “the volume of excavation required
for underground pipe trenches is greater than the volume provided in the pricing
summary sheets provided by FFPO that was used as the basis for pricing costs
associated with this activity.” Id.
On July 19, 2023, FFPO responded to S&B’s July 17, 2023 letter, stating:
As per the requirements of Subcontract Part III Terms and
Conditions Article 34, Differing Jobsite Conditions, Subcontractor is
to notify Company promptly and prior to the disturbance of the
differing conditions. Subcontractors lack of notification and further
commencement of Work is deemed acceptance of any differing
conditions making Subcontractors current notice under this clause
not allowable.
Until the total actual neat quantities is established as more than
what is in the pricing summary sheet, FFPO will not entertain any
change order on this matter. If the experienced neat quantities
surpass the pricing summary sheet’s quantities as the required work
continues, S&B will track and submit a change order for review.
Dkt. 28-17 at 2–3.
On October 17, 2023, S&B submitted COR076R0 seeking an increase to the
contract price in the amount of $25,955,740. See Dkt. 28-19 at 4. FFPO rejected
COR076R0 on November 6, 2023. See Dkt. 28-20.
On December 4, 2024, S&B sued FFPO in Texas state court for breach of
contract, violation of the Texas Prompt Pay Act and, in the alternative, quantum
meruit. FFPO removed the lawsuit to federal court on December 27, 2024. FFPO
has moved for summary judgment.
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SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate “if the movant shows 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). A genuine issue of material fact exists if a
reasonable jury could enter a verdict for the non-moving party. See Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). Evidence is viewed “in the light most
favorable to the non-moving party, and the movant has the burden of showing this
court that summary judgment is appropriate.” QBE Ins. Corp. v. Brown & Mitchell,
Inc., 591 F.3d 439, 442 (5th Cir. 2009) (cleaned up).
“The moving party bears the initial burden of showing that there is no
genuine issue for trial.” Duffy v. Leading Edge Prods., Inc., 44 F.3d 308, 312 (5th
Cir. 1995). “[I]f the movant bears the burden of proof on an issue . . . , he must
establish beyond peradventure all of the essential elements of the [claim or
affirmative] defense to warrant judgment in his favor.” Access Mediquip L.L.C. v.
UnitedHealthcare Ins. Co., 662 F.3d 376, 378 (5th Cir. 2011) (quotation omitted).
Where the movant does not bear the burden of proof, his burden is satisfied
by showing that the other party has a “failure of proof on an essential element of
its claim [or affirmative defense].” Joseph ex rel. Est. of Joseph v. Bartlett, 981
F.3d 319, 329 (5th Cir. 2020). A party makes this showing by introducing evidence
or by “pointing out . . . an absence of evidence to support the nonmoving party’s
case.” Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). “If the [movant] succeeds
on that showing, the burden shifts to the [nonmovant] to demonstrate that there
is a genuine issue of material fact and that the evidence favoring the [nonmovant]
permits a jury verdict in the [nonmovant]’s favor.” Joseph, 981 F.3d at 329.
ANALYSIS
FFPO advances five arguments in its summary judgment motion: (1) S&B
waived its breach of contract claim because it failed to provide the five-day “Initial
Notice” under Subcontract Article 35 concerning “Changes”; (2) S&B waived its
breach of contract claim because it failed to provide the 21-day “notice” of a “claim”
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under Subcontract Article 46; (3) S&B waived its breach of contract claim because
it was untimely in notifying FFPO as to Differing Jobsite Conditions under
Subcontract Article 34; (4) S&B’s Texas Prompt Pay Act claim fails alongside its
breach of contract claim; and (5) S&B’s claim for quantum meruit is barred by the
parties’ express contract. I will address each of these arguments in turn.
A. 	A RTICLE 35—CHANGES
FFPO first argues that S&B waived its breach of contract claim under
Subcontract Article 35 when it failed to submit a five-day “Initial Notice” to FFPO
for two reasons: (1) FFPO’s alleged failure to provide AFC drawings was a change
under the Subcontract; and (2) FFPO’s response to S&B’s RFI-0093 was a change
under the Subcontract.
“Waiver is an affirmative defense, as to which the breaching party bears the
burden of proof.” Westfed Holdings, Inc. v. United States, 407 F.3d 1352, 1360
(Fed. Cir. 2005); see also JM Walker LLC v. Acadia Ins. Co., 356 F. App’x. 744,
748 (5th Cir. 2009) (“Under Texas law, waiver is an affirmative defense, and the
party seeking to [assert waiver] bears the burden of proof.”).2 “As the party
claiming waiver, [FFPO] bears the burden of proof to show by a preponderance of
evidence that [S&B] waived its rights to assert its breach of contract claim.”
Westfed, 407 F.3d at 1360; see also In re State Farm Lloyds, Inc., 170 S.W.3d 629,
634 (Tex. App.—El Paso 2005, no pet.) (FFPO has “the burden to show that [S&B]’s
alleged 	failure 	to 	comply 	with 	[Article 	35] 	constituted 	an 	intentional
relinquishment of its right to [additional compensation].”).
Article 35 provides, in relevant part:
The 	SUBCONTRACT 	shall 	be 	subject 	to 	change 	by 	additions,
deletions or revisions thereto by COMPANY. The COMPANY reserves
2 Subcontract Article 49 states: “The determination of any substantive issues of law shall
be according to the Federal common law of Government Contracts as stated and applied
by Federal judicial bodies and boards of contract appeals of the Federal Government. If
there is no applicable Federal Government Contracts law, the law of the State Texas or
Louisiana shall apply in the determination of such issues.” Dkt. 28-8 at 16. As to waiver,
there is no difference between the federal common law and Texas state law.
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the 	right 	to 	make 	changes 	within 	the 	general 	scope 	of 	the
SUBCONTRACT 	by 	issuance 	of 	a 	unilateral 	change 	order.
. . . Only the Subcontract Administrator is authorized on
behalf of COMPANY to issue changes whether formal or
informal. SUBCONTRACTOR will be notified of such changes by
receipt of additional and/or revised drawings, specifications, exhibits,
or other written notification.
If SUBCONTRACTOR considers that a change is involved that could
affect its costs of performing the WORK or impacts the critical path of
the schedule for performance of the WORK, SUBCONTRACTOR is
obligated to inform COMPANY the impact with an Initial Notice
within five (5) working days of SUBCONTRACTOR receiving written
notification of the change.
Dkt. 28-8 at 12 (emphasis added).
FFPO contends that “S&B was required to provide FFPO with ‘Initial Notice’
under Article 35 on or before January 28, 2022,” which was five working days after
Goolsby sent his January 21, 2022 email. Dkt. 28 at 17. Similarly, FFPO contends
that “S&B was required to provide FFPO with an ‘Initial Notice’ under Article 35
by June 28, 2022,” which was five working days after Mikosky, Harp, Knoll, and
Goolsby responded to S&B’s RFI-0093. Id. at 20. There is just one problem with
FFPO’s 	arguments: 	neither 	Mikosky, 	Harp, 	Knoll, 	nor 	Goolsby 	was 	the
Subcontract Administrator. Marianne Martin was the Subcontract Administrator.
Article 35 is clear: “Only the Subcontract Administrator [Martin] is authorized on
behalf of [FFPO] to issue changes whether formal or informal.” Dkt. 28-8 at 12
(emphasis added).
In its response brief, S&B argues that “a change from FFPO must be sent by
the contract administrator, Marriane [sic] Martin.” Dkt. 33 at 6. FFPO tries to skirt
the plain language of the Subcontract, arguing that “the first paragraph of Article
35 addresses unilateral change orders imposed by FFPO.” Dkt. 34 at 7. But the
Subcontract does not say that “Only the Subcontract Administrator is authorized
on behalf of FFPO to issue unilateral change orders.” Rather, the Subcontract
states: “Only the Subcontract Administrator is authorized on behalf of [FFPO] to
issue changes whether formal or informal.” Dkt. 28-8 at 12 (emphasis added). The
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use of “formal or informal” confirms that “change” means any change, not just a
“unilateral change order.” Id. Furthermore, S&B’s Initial Notice obligation is
triggered only upon “receiving written notification of the change,” which can be
issued “[o]nly” by the Subcontract Administrator. Id. Because neither the January
21, 2022 email nor the June 21, 2022 email were sent by Martin, and because there
is no evidence in the record that Martin sent written notification of a change to
S&B, no Initial Notice obligation was triggered. Accordingly, FFPO is not entitled
to summary judgment on its affirmative defense that S&B waived its breach of
contract claim under Article 35.
B. 	A RTICLE 46—C LAIMS
FFPO next argues that “S&B waived its claim for breach of contract under
Subcontract Article 46 by failing to timely assert a claim following FFPO’s rejection
of COR076R0.” Dkt. 28 at 23. Again, FFPO’s waiver argument is an affirmative
defense on which FFPO bears the burden of proof. See Westfed, 407 F.3d at 1360.
Article 46 states:
a. 	Time Limit On Claims
The parties to this SUBCONTRACT shall commence all claims and
causes of action again [sic] the other and arising out of or related to
the SUBCONTRACT, whether in contract, tort, breach of warranty or
otherwise, within four (4) years of Substantial Completion of this
SUBCONTRACT.
b. 	Notice
Notice of a claim, other than a claim for an excusable delay, by either
party shall be made in writing within 21 days of the occurrence giving
rise to the claim or within 21 days that the claimant became aware of
the claim, whichever is later.
Dkt. 28-8 at 15.
FFPO argues that its November 6, 2023 rejection of COR076R0 “triggered a
21-day period for which S&B was required to provide FFPO written notice of a
claim under the Subcontract’s Claims provision.” Dkt. 28 at 23. S&B retorts that
whether it was aware of a claim is a fact issue because “upon its rejection [of
COR076R0] FFPO instructed S&B to continue working and submit another
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request once further documentation could be compiled.” Dkt. 33 at 21. Specifically,
in rejecting S&B’s request for a change, Martin wrote: “S&B should not submit
additional CORs related to this matter unless actual evidence is provided to
support a change in requirements.” Dkt. 28-20 at 2. Because Martin left the door
open to a future change approval, a reasonable factfinder could conclude that S&B
had not yet become aware of a claim sufficient to trigger Article 46’s 21-day notice
requirement. Accordingly, FFPO is not entitled to summary judgment on its
affirmative defense that S&B waived its breach of contract claim under Article 46.
C. 	A RTICLE 34—D IFFERING JOBSITE CONDITIONS
FFPO next argues that “S&B waived its claim for breach of contract under
Article 34 of the Subcontract by failing to timely notify FFPO promptly and prior
to disturbing the alleged differing site conditions at the Project.” Dkt. 28 at 26.
Again, FFPO’s waiver argument is an affirmative defense on which FFPO bears the
burden of proof. See Westfed, 407 F.3d at 1360.
Article 34 states:
SUBCONTRACTOR shall promptly, and before the conditions are
disturbed, give a written notice to COMPANY, of (1) subsurface or
latent physical conditions at the Jobsite which differ materially from
those indicated in this SUBCONTRACT, or (2) physical conditions at
the Jobsite, of an unusual nature, which differ materially from those
ordinarily encountered and generally recognized as inherent in work
of the character provided for in this SUBCONTRACT.
COMPANY shall investigate the Jobsite conditions promptly after
receiving the notice. If the conditions do materially so differ and cause
an increase or decrease in SUBCONTRACTOR’S cost of, or the time
required 	for, 	performing 	any 	part 	of 	the 	work 	under 	this
SUBCONTRACT, whether or not changed as a result of the conditions,
an equitable adjustment shall be made under this clause and this
SUBCONTRACT modified in writing accordingly. If the impact from
the differing jobsite conditions is an Excusable Delay as defined in this
SUBCONTRACT, 	any 	equitable 	adjustment 	will 	be 	limited 	to 	a
noncompensable extension to the performance schedule.
No request by SUBCONTRACTOR for an equitable adjustment under
this clause shall be allowed, unless the written notice required in
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Paragraph above is timely given. Commencement of Work by the
SUBCONTRACTOR is acceptance of all conditions.
Dkt. 28-8 at 12.
FFPO argues that “[b]y providing notice of differing site conditions more
than a full year after beginning the work, S&B unilaterally eliminated any
possibility of cost minimization by FFPO, acting on behalf of the Government,” and
thus the court should “grant summary judgment on S&B’s differing site conditions
claim.” Dkt. 28 at 29. S&B retorts that it “has not raised an Article 34 claim in its
petition.” Dkt. 33 at 22. Rather, “S&B’s claim is for incomplete and deficient
specifications provided by FFPO from the outset that have led to unexpectedly
voluminous 	excavation 	spoils 	as 	S&B 	prosecuted 	the 	excavation 	work.” 	Id.
Attempting to defeat this argument, FFPO cites the Federal Circuit’s decision in
Comtrol, Inc. v. United States for the proposition that “differing site conditions
and defective specifications claims . . . collapse into a single claim . . . where the
alleged defect in the specification is the failure to disclose the alleged differing site
condition.” Dkt. 34 at 16 (quoting Comtrol, Inc. v. United States, 294 F.3d 1357,
1362 (Fed. Cir. 2002)).
But 	S&B’s 	claim 	is 	not 	about 	differing 	site 	conditions. 	Rather, 	S&B
complains that “FFPO’s specification section 01010-LE2 Item 2.05 states ‘All
underground piping is to be buried with a 3’ coverage consideration from top of
pipe to top of grade,’” Dkt. 28-4 at 8, when in reality, “the underground piping
required excavations to depths of up to fourteen (14) feet.” Dkt. 1-3 at 3.
Moreover, this case is distinguishable from Comtrol. In Comtrol, the
contractor encountered unexpected quicksand at the site and alleged “(1) that the
quicksand constituted a differing site condition, and (2) that the specification was
defective for failure to disclose the presence of quicksand.” 294 F.3d at 1362. The
Federal Circuit found that the alleged different site conditions and defective
specifications were one in the same because “the specification did not affirmatively
represent that only hard material would be encountered.” Id. at 1363. Here,
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however, there is a genuine dispute of material fact as to whether “FFPO misled
S&B to believe the guaranteed quantities were based on AFC underground
isometric drawings for construction and AFC drawings would be provided to S&B
for prosecution of the Work.” Dkt. 28-4 at 16; see also id. at 10–11. Accordingly,
FFPO is not entitled to summary judgment on its affirmative defense that S&B
waived its breach of contract claim under Article 34.
D. 	TEXAS PROMPT PAY A CT
The parties recognize that S&B’s Texas Prompt Pay Act claim rises or falls
with S&B’s breach of contract claim. See Dkt. 28 at 31 (“The remedies available
under the Texas Prompt Pay Act require an underlying breach of contract.”); see
also Dkt. 33 at 23 (“FFPO claims that because there is no breach of contract
available for S&B . . . , then there is no interest available [under the Texas Prompt
Pay Act claim] either.”). As established above, FFPO has not demonstrated
entitlement to summary judgment on any of its affirmative defenses to S&B’s
breach of contract claim. Because S&B’s breach of contract claim survives FFPO’s
motion for summary judgment, S&B’s Texas Prompt Pay Act claim must also
survive.
E. 	Q UANTUM M ERUIT
Lastly, FFPO argues that the parties’ express contract precludes S&B’s claim
for quantum meruit. “The express contract defense is an affirmative defense on
which [FFPO] has the burden of proof.” Rise Above Steel Co. v. Liberty Mut. Ins.
Co., 656 S.W.3d 577, 586 (Tex. App.—El Paso 2022, no pet.).
“A recovery in quantum meruit is based on an implied-in-law contract. That
is, a contract in which there is no actual agreement between the parties, but the
law imposes a duty in order to prevent injustice.” Int’l Data Prods. Corp. v. United
States, 492 F.3d 1317, 1325 (Fed. Cir. 2007). “Recovery on an express contract and
on quantum meruit are inconsistent. Where there exists a valid express contract
covering the subject matter, there can be no implied contract.” Woodard v. Sw.
States, Inc., 384 S.W.2d 674, 675 (Tex. 1964). It is undisputed that the parties here
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have an express contract that governs this dispute. Accordingly, FFPO has carried
its burden regarding its express contract affirmative defense.
Because FFPO has established its express contract affirmative defense, the
burden falls to S&B to demonstrate some exception. S&B argues that Texas courts
encourage plaintiffs to “allege both theories as alternative bases of recovery,
particularly if there is the possibility that the contract might be found to be
invalid.” Dkt. 33 at 23 (quoting Centex Corp. v. Dalton, 840 S.W.2d 952, 955 n.7
(Tex. 1992)). True as that may be, we are at the summary judgment phase of this
proceeding, not the motion to dismiss stage. S&B does not even suggest that its
express contract with FFPO might be found to be invalid, much less point to
evidence in the record that would support such an argument. Accordingly, FFPO
is entitled to summary judgment on S&B’s claim for quantum meruit.
CONCLUSION
For the reasons discussed above, I recommend that FFPO’s motion for
summary judgment (Dkt. 28) be granted as to S&B’s claim for quantum meruit and
denied in all other respects.
The 	parties 	have 	14 	days 	from 	service 	of 	this 	Memorandum 	and
Recommendation to file written objections. See 28 U.S.C. § 636(b)(1)(C); Fed. R.
Civ. P. 72(b)(2). Failure to file timely objections will preclude appellate review of
factual findings and legal conclusions, except for plain error.
SIGNED this ___ day of February 2026.
______________________________
ANDREW M. EDISON
UNITED STATES MAGISTRATE JUDGE
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