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North Alabama Fabricating Company, Inc. v. Bedeschi Mid-West Conveyor Company, LLC

United States District Court, D. Kansas

May 14, 2018



          Daniel D. Crabtree, United States District Judge.

         Plaintiff North Alabama Fabricating Company, Inc. brings this lawsuit, asserting breach of contract and fraud claims, against four defendants: (1) Bedeschi Mid-West Conveyor Company, LLC (“Bedeschi”); (2) Dearborn Mid-West Conveyor Company, Inc.; (3) Larry Harp; and (4) Braxton Jones. Defendant Bedeschi responded to plaintiff's Complaint by asserting a Counterclaim, alleging breach of contract and breach of warranty claims and seeking a declaratory judgment that it never breached the parties' contract.

         This matter comes before the court on the parties' cross-motions for summary judgment. Defendants have filed a Joint Motion for Partial Summary Judgment (Doc. 82). Defendants' motion asks the court to grant summary judgment against two of plaintiff's three claims: (1) Count II's claim for fraud, promissory fraud, and misrepresentation; and (2) Count III's claim for fraudulent suppression.

         Plaintiff also has filed a Motion for Partial Summary Judgment (Doc. 84). Plaintiff's motion asks the court to grant summary judgment against: (1) Bedeschi's counterclaims for breach of contract and breach of warranty; (2) Bedeschi's declaratory judgment claim; and (3) Bedeschi's affirmative defense asserting a setoff. Also, plaintiff asks the court to enter summary judgment in its favor on plaintiff's assertion that Bedeschi changed the “scope of work, ” thus entitling plaintiff to additional payment under the parties' contract.

         After considering the parties' arguments, the court grants defendants' summary judgment motion in part and denies in it part. And the court denies plaintiff's summary judgment motion. The court explains why below.

         I. Uncontroverted Facts

         The following facts are either stipulated facts taken from the Pretrial Order (Doc. 79), or uncontroverted for purposes of the parties' summary judgment motions.

         On July 9, 2014, Dearborn Mid-West Conveyor Company, Inc. (“Dearborn”) entered into a contract with Essar Projects USA, LLC (“Essar”). Dearborn agreed to design, manufacture, and erect one or more “Iron Pellet” conveyor systems at iron and iron ore processing facilities owned or operated by Essar in Minnesota (“the Essar Project”). The contract provided that Dearborn could engage necessary or appropriate subcontractors to facilitate its performance under the contract, including one or more subcontractors responsible for manufacturing, fabricating, and delivering to Essar the parts, pieces, components, and materials used to construct the conveyor systems.

         Dearborn then subcontracted its performance under the Essar Project contract to Bedeschi-a newly created company. Bedeschi engages in the design, integration, and installation of material handling systems including “conveyor systems.” The principal consumers of conveyor systems are companies who: generate electrical power; mine, extract, refine, or process minerals, cement, pulp and paper; or transport goods and commodities by sea. Bedeschi does not manufacture conveyor systems. Instead, it engineers the desired equipment and subcontracts the manufacturing to outside steel fabricators.

         Dearborn and Bedeschi entered into an asset purchase agreement. It provided that Dearborn would subcontract its obligations under its contract with Essar to Bedeschi. It also provided that Dearborn would remit to Bedeschi all amounts Essar paid Dearborn. Bedeschi never had a contract with Essar. Instead, as described, it served as Dearborn's subcontractor on the Essar Project.

         Bedeschi Contracts with NAFCO

         After assuming its subcontractor obligations on the Essar Project, Bedeschi entered into written contracts with plaintiff North Alabama Fabricating Company, Inc. (“NAFCO”) for NAFCO to manufacture fabricated steel equipment and support structures for use in the Essar Project's construction. The Blanket Subcontract Agreement (Doc. 83-4) and Subcontract Purchase Order and accompanying Terms and Conditions (Doc. 83-5) is the contract between Bedeschi and NAFCO for the Essar Project. The court refers to these documents collectively as “the Contract”. The parties entered the agreements in September 2015.

         Before it signed the Contract, NAFCO never requested Bedeschi's financial statements or any other information about Bedeschi, its business, assets, organization, or affiliations. In declarations submitted on summary judgment, Larry Harp (Bedeschi's President and CEO) and Braxton Jones (a Dearborn project manager) attest that when the parties entered the Contract in September 2015, neither Mr. Harp, Mr. Jones, nor Bedeschi intended not to fulfill Bedeschi's obligations under the Contract. Also, neither Mr. Harp, Mr. Jones, nor Bedeschi knew any facts that would or could prevent Bedeschi from performing its obligations under the Contract. Mr. Harp and Mr. Jones further attest that when the parties entered the Contract, Bedeschi intended to pay NAFCO for its performance under the Contract in the amounts and at the times the Contract required. Also, they knew no facts suggesting that Bedeschi would not or could not pay NAFCO as the Contract required. Mr. Harp and Mr. Jones attest that, when the parties inserted the schedule for NAFCO's performance under the contract, Bedeschi intended to keep, follow, and adhere to the schedule. Also, they knew no facts suggesting that Bedeschi would not keep the schedule or that it would need to disregard the schedule. And Mr. Harp and Mr. Jones attest that, when the parties entered the Contract, Bedeschi intended to engage a shipper who would provide trucks to NAFCO for loading and transporting fabricated steel to the Essar Project jobsite. Finally, Mr. Harp and Mr. Jones knew of no facts that would prevent Bedeschi from establishing a shipping method for the fabricated steel.

         The Terms of the Blanket Subcontract Agreement

         The parties' Blanket Subcontract Agreement (“Subcontract”) provided that Bedeschi would issue one or more purchase orders to NAFCO. The purchase orders were deemed to include the terms and provisions of the Subcontract, to define the scope of NAFCO's work (including its start and completion dates), and to establish the compensation paid to NAFCO. The Subcontract required NAFCO to furnish all labor, management, supervision, engineering, materials, tools, equipment, construction utilities, supplies, samples, models, temporary structures, and facilities as well as hoisting, transportation, unloading, storage, hauling, and all other items necessary to perform the scope of work.

         Article 4 of the Subcontract established the subcontract price. It provided that each purchase order issued by Bedeschi to NAFCO would specify the full and complete compensation for performing the work described in the purchase order. Article 4 also provided that Bedeschi is not liable for any amount exceeding those amounts unless a written change order was issued under Article 17.

         The Subcontract permitted Bedeschi to withhold all or part of any payment if Bedeschi deemed it necessary to enforce NAFCO's obligations or to protect Essar from loss. A withholding of payment could include a withholding resulting from NAFCO's performance of defective work under any purchase order.

         The Subcontract required NAFCO to provide adequate protection, care, and maintenance for and to bear all risk of damage to, or loss of: all materials and equipment it furnished; all materials, supplies, and equipment it delivered to Bedeschi or Essar intended for incorporation or use in the performance of any work; and all work completed or in progress until the earlier of Bedeschi's written final acceptance or possession of the work by Bedeschi, Essar, or one of their other contractors. Also, the Subcontract required NAFCO to bear the expense of all overtime and additional labor necessary to meet the completion date established by any purchase order if caused by NAFCO's failure to perform according to the terms of the Subcontract.

         The Subcontract provided that, in the event of a dispute between Bedeschi and NAFCO that also involved Essar in any way, the provisions of all contract documents, including the Bedeschi-Essar Project contract, were binding on NAFCO. Also, it required NAFCO to complete any portion or portions of any work within the time specified by the purchase order. And it required NAFCO to modify the order of performance as necessary to comply with Bedeschi or Essar's directives. NAFCO was entitled to extra compensation or an extension of time for completion, or both, only if it complied with the Subcontract's Article 17. Article 17(B) permitted NAFCO to seek changes to the agreement, including a price increase, but it required, among other things, that NAFCO submit the requested change in writing and Bedeschi approve the change in writing. But Article 17(A) permitted Bedeschi to make “minor changes” in the work (ones not involving a material increase in cost) with no adjustments made to the subcontract price.

         Also, the Subcontract required that, upon receiving written notice from Bedeschi, NAFCO would suspend shipment and delivery of material and stop any part or all of the work or operations performed under the contract for any periods of time Bedeschi designated in the notice. In such cases, NAFCO's reimbursement, if any, was limited to its actual costs and expenses without any overhead or anticipated profit for incomplete work.

         The Subcontract provided Bedeschi the right, at any time, to terminate NAFCO's engagement under the Subcontract and any ensuing purchase orders by giving NAFCO written notice. The written notice became effective 10 days after NAFCO received it. After receiving written notice of termination, the Subcontract required NAFCO immediately to discontinue the work that Bedeschi had terminated and to stop placing orders for material, equipment, and supplies in connection with the work. But it permitted NAFCO to perform work necessary to preserve and protect work already in progress or in transit and to protect material and equipment on the work premises or in transit thereto. The Subcontract provided that neither Bedeschi nor Essar is liable for any damages or loss of anticipated profits because of such termination. If Essar requested or directed the termination, the Subcontract prohibits NAFCO from recovering any costs, expenses, or other items resulting from the termination except to the extent that Bedeschi could recover the same from Essar for work that NAFCO performed.

         Also, the Subcontract gave Bedeschi the right to terminate the agreement, or any portion thereof, and take possession of the finished and unfinished work by whatever method it deems expedient, upon 30-days' notice, in the event, among other things, that NAFCO: failed to prosecute any work with promptness or diligence; refused or failed to supply enough properly skilled workers or proper materials; refused or failed to make prompt payment for materials or labor on any project; or otherwise violated any of its agreements with Bedeschi.

         NAFCO recognized that the work and materials that it produced under the Subcontract and any ensuing purchase order was of a special and unique nature, and it constituted a critical part of Bedeschi's own work for and on behalf of Essar. Also, NAFCO recognized that Bedeschi would suffer irreparable harm and damages, including irreparable damage to its reputation and standing should NAFCO fail to make such work and materials available to Bedeschi, when needed.

         The Subcontract provided that, in the event either NAFCO or Bedeschi failed to comply with any term, condition, requirement, or provision of the agreement or the purchase orders or otherwise defaulted upon any obligation contained in or imposed by the agreement or the purchases orders, the defaulting party would be liable for and must pay to the non-defaulting party all losses, damages, costs, and expenses of every kind and nature including reasonable attorney's fees incurred by the non-defaulting party in connection with the default.

         Finally, the Subcontract provided, if NAFCO defaulted and the unpaid balance of the subcontract price is less than the amount by which the Subcontract permits reduction of the subcontract price, Bedeschi may deduct the difference from any sums payable to NAFCO.

         The Terms of the Subcontract Purchase Order

         On October 5, 2016, NAFCO executed an acknowledgement copy of the Subcontract Purchase Order. The Subcontract Purchase Order provided that $4, 637, 371 was the total price for NAFCO's performance. The Subcontract Purchase Order required Bedeschi to pay the sum in serial payments equal to the agreed price for all materials and goods actually delivered within the 30-day period next-preceding such payment, subject to a retention of 5%. The Subcontract Purchase Order provided that Bedeschi would not consider charges for extra or additional equipment, material, or work without prior written authorization from Bedeschi's Project Manager. Under the Subcontract Purchase Order, NAFCO expressly warranted that all goods or services covered by the agreement would be “of first class quality and . . . conform to the specifications, drawings, samples or descriptions furnished to or by” Bedeschi; that they would be “merchantable, of good material and free from defects, latent or patent;” and that since NAFCO knew of Bedeschi's “intended use” for such products, NAFCO “expressly warrant[ed] that all goods covered . . . [had] been selected, designed, manufactured, or assembled by” NAFCO “based on” Bedeschi's “stated use and” would “be fit and sufficient for the particular purposes intended by” Bedeschi. Doc. 83-5 at 3.

         The parties' Subcontract Purchase Order and attachments included several requirements governing NAFCO's work for the Essar Project. One of the attachments is the Subcontract Purchase Order 's “Terms and Conditions.” Bedeschi drafted the “Terms and Conditions” using a form that it uses for other projects. The Subcontract Purchase Order required that NAFCO's work generally would consist of all detailing, fabrication, and painting as outlined in the “General Instructions to” NAFCO as well as the “Level of Assembly” matrix. The Subcontract Purchase Order required NAFCO to manufacture, construct, and fabricate “Crusher Concentrate Area Conveyors, ” “Pellet Plant Area Conveyors, ” and “Pellet Product Area Conveyors” as well as an inventory of spare parts. Id. at 9-11. The Subcontract Purchase Order's prices included: the unloading and storage of materials; preparation of shipping documents, efficient truck loading, dunnage, and strapping of material for shipping to the jobsite; and trucking arranged by NAFCO using Bedeschi's preferred carriers and third party billing. The Subcontract Purchase Order includes the term “FOB Origin.” This term means that, excluding warranty, NAFCO's responsibility for its goods ends when NAFCO loads the goods onto shipping trucks at NAFCO's facilities in Alabama. Also, once NAFCO loads the goods onto the shipping trucks, title to the goods passes from NAFCO to Bedeschi.

         Section 5 of the “Terms and Conditions” provides:

[Bedeschi] reserves the right at any time to direct changes, or cause [NAFCO] to make changes to drawings and specifications of the goods or to otherwise change the scope of the work covered by this [purchase] order, including work with respect to such matters as inspection, testing or quality control, and [NAFCO] agrees to promptly make such changes; any difference in price or time of performance resulting from such changes shall be equitably adjusted by [Bedeschi] after receipt of documentation in such form and detail as [Bedeschi] may direct. Any changes to this order shall be made in accordance with Paragraph 27.

Id. at 2. Section 27 provides: “This Order may only be modified by a purchase order amendment/alteration issued by [Bedeschi].” Id. At 5.

         Section 22 of the “Terms and Conditions” provides:

In addition to any right of set-off provided by law, all amounts due [NAFCO] shall be considered net of indebtedness of [NAFCO] to [Bedeschi] and its subsidiaries; and [Bedeschi] may deduct any amounts due from [NAFCO] to [Bedeschi] and its subsidiaries from any sums due or to become due from [Bedeschi] or its subsidiaries to [NAFCO].

Id. at 4.

         The Subcontract Purchase Order also contains an attached “Table of Contents” listing additional provisions incorporated into the parties' Contract. Section 5 incorporates the “Specifications and Codes” of several outside authorities, including those of the American Institute of Steel Construction (“AISC”). Id. at 9. The AISC's Code of Standard Practice for Steel Buildings and Bridges (“AISC Code”) is a publication setting forth the industry “trade practices . . . involved in the design, purchase, fabrication and erection of structural steel.” Doc. 85-5 at 4.

         Section 1.1 of the AISC Code provides: “In the absence of specific instructions to the contrary in the contract documents, the trade practices that are defined in this code shall govern the fabrication and erection of structural steel.” Id. at 14. The Commentary Section 1.1 of the AISC Code states: “This code is not intended to . . . change the duties and responsibilities of the owner, contractor, architect or general engineer of record from those set forth in the contract documents; nor assign to the owner, architect or general engineer of record any duty or authority to undertake responsibility inconsistent with the provisions of the contract documents.” Id.

         Section 9.4.1 of the AISC Code provides:

When the scope of work and responsibilities of the fabricator and the erector are changed from those previously established in the contract documents, an appropriate modification of the contract price shall be made. In computing the contract price adjustment, the fabricator and the erector shall consider the quantity of work that is added or deleted, the modifications in the character of the work and the timeliness of the change with respect to the status of material ordering, detailing, fabrication and erection operations.

Id. at 76. Section 9.4.3 of the AISC Code states:

Price-per-pound and price-per-item contracts shall provide for additions or deletions to the quantity of work that are made prior to the time the work is released for construction. When changes are made to the character of the work at any time, or when additions and/or deletions are made to the quantity of the work after it is released for detailing, fabrication or erection, the contract price shall be equitably adjusted.


         Performance of the Contract

         In November and December 2015, NAFCO delivered eight shipments of fabricated steel to the Essar Project, as the parties' Contract required. Bedeschi paid NAFCO in full for those deliveries less retainage, after it received payment itself.

         In the fall of 2015, construction on the Essar Project stopped because the project owner was unable to secure additional funding needed to finish construction and commence production. Then, in December 2015, Essar failed to provide proof of an extension of a Letter of Credit as a method of payment for invoices submitted for work on the Essar Project.

         On December 22, 2015, Bedeschi sent a letter to NAFCO. It stated that Bedeschi had given Notice of Default to the Essar Project owner on account of its failure to provide and maintain letters of credit as a method for payment of invoices submitted for work performed on the Essar Project. The letter invoked the parties' Contract, specifically Section 3 of the Terms and Conditions of the Subcontract Purchase Order. And it instructed NAFCO to suspend all further shipments to the Essar Project while Bedeschi continued to pursue issuance of compliant letters of credit or other credit facilities from Essar that would assure payment and permit NAFCO to resume shipment. Bedeschi's temporary suspension applied to shipments of material then in the process of fabrication as well as all future shipments.

         On December 23, 2015, NAFCO sent a letter to Bedeschi. It reported that NAFCO would suspend further operations and shipments and await reinstatement of the suspended work. NAFCO then sent invoices to Bedeschi for the additional costs NAFCO had incurred because of the work's suspension, as provided by Article 24 of the Bedeschi-NAFCO Subcontract. Bedeschi never paid those invoices.

         In an email dated March 28, 2016 and sent to NAFCO, Mr. Jones (a Dearborn Project Manager) told NAFCO that it should include a line item in its invoice for interest-or the cost of money-because Bedeschi needed to show the separate charge when it presented a request for a change order to Essar. Mr. Jones noted that Mr. Harp (Bedeschi's President and CEO) had suggested during an earlier conference call that NAFCO include this line item. On March 31, 2016, NAFCO responded to Mr. Jones's email by providing an updated change order request that included the “cost of money” at $6, 750 per month for the four months while Bedeschi had suspended NAFCO's work. Doc. 97-17 at 1. Bedeschi never responded to NAFCO's March 31 email. It also never contested the “cost of money” line item.

         On May 2, 2016, Bedeschi and NAFCO representatives met to discuss the possibility of Bedeschi lifting the temporary suspension. Mr. Harp suggested to NAFCO that the best way for it to get paid for materials NAFCO had constructed was to ship them to the Essar Project. The parties agreed that, if Bedeschi agreed to lift the suspension, the payment terms established in the Contract would continue to control. But John Ralph Parrish (NAFCO's President) testified that Bedeschi offered to pay NAFCO interest if NAFCO resumed its shipments. During the meeting, Bedeschi never asked NAFCO to change the terms of the parties' Contract. To the contrary, the parties agreed that Bedeschi would be obligated to satisfy all outstanding invoices. But Bedeschi also told NAFCO that it would make payment to NAFCO when Bedeschi itself was paid for its work on the Essar Project.

         At the May 2 meeting, NAFCO asked Bedeschi to provide it with a letter of credit to ensure payment. Bedeschi refused. Also at the May 2 meeting, NAFCO asked Bedeschi to enter into a written change order reflecting that it would pay NAFCO additional amounts that NAFCO claimed it was owed for its performance under the Contract. Bedeschi refused to enter or issue any such change order.

         Later in May, Mr. Harp spoke with Jim Smothers (a NAFCO employee) about NAFCO's work on the Essar Project. Mr. Harp told Mr. Smothers that Bedeschi would pay NAFCO when Bedeschi itself received payment for the Essar Project. Also, Mr. Harp told Mr. Smothers that, if NAFCO resumed shipping fabricated steel to the Essar Project, Bedeschi would pay NAFCO when Bedeschi was paid. Also during May 2016, Mr. Jones told NAFCO that Bedeschi needed Essar to pay invoices so that it could pay NAFCO for its work on the Essar Project. Mr. Jones told NAFCO that Bedeschi did not have the ability to pay NAFCO until Essar made its payments. When Mr. Jones made these representations, he believes he relied on information that he received from either Mr. Harp or Bedeschi's Controller, Nancy Burris, about the company's finances.

         On May 4, 2016, Bedeschi sent a letter to NAFCO lifting the temporary suspension and directing NAFCO to resume shipments immediately. The letter asked NAFCO to ship the material as quickly as possible so that Bedeschi could be paid under a letter of credit that required delivery of the materials on or before June 10, 2016. More specifically, the accelerated shipment date required NAFCO to paint and ship 300 tons of fabricated steel within four to five weeks. Bedeschi acknowledges that this order involved a lot of steel and amounted to “a tall order.” Doc. 85-3 at 133 (Jones Dep. 389:6-12). The letter also explained that Bedeschi would pay NAFCO once it had received a corresponding payment for the materials from Essar.

         After it received the May 4 letter, NAFCO informed Bedeschi that, given the accelerated shipment date, it believed Bedeschi would be responsible for NAFCO's increased costs arising from the earlier suspension and future accelerated schedule. Mr. Harp and Mr. Jones represented to NAFCO's President that Bedeschi would compensate NAFCO for those expenses. Mr. Jones, testifying in his capacity as Bedeschi's designated corporate representative, testified that before resuming the shipments in May 2016, “Bedeschi knew it was going to have to pay NAFCO amounts that weren't provided for in the parties' contract.” Doc. 85-3 at 113 (Jones Dep. 323:2- 6). Also, Mr. Jones testified that Bedeschi's suspension of shipments in December 2015, and its resumption of shipments on an expedited basis in May 2016, constituted a significant change to NAFCO's work under the Contract. Still, NAFCO and Bedeschi never changed the payment terms as established by the Subcontract Purchase Order and Terms and Conditions.

         On May 10, 2016, Mr. Jones told NAFCO that Bedeschi would pay NAFCO when Essar paid Bedeschi. On May 11, 2016, Mr. Jones sent an email to NAFCO that again explained that Bedeschi would pay NAFCO when it received the corresponding payment from Essar.

         Between May and July 2016, NAFCO delivered 34 more loads of fabricated steel totaling more than $1.3 million in product. Bedeschi assured NAFCO that the letter of credit provided the necessary surety to allow Bedeschi to compensate NAFCO for its work. In response, NAFCO repeatedly told Bedeschi that its payment obligations to NAFCO were independent of any compensation it might receive under the letter of credit. NAFCO repeatedly has declined any attempts to amend or alter the parties' Contract. Instead, it has reserved its rights under that agreement.

         Bedeschi Receives Payment from Essar

         Essar eventually paid Dearborn more than $16 million for the Essar Project. Dearborn has paid Bedeschi all amounts it has received from Essar. Bedeschi received the balance of the payment after NAFCO filed this lawsuit. Bedeschi never informed NAFCO that Essar had paid Dearborn the $16 million. Mr. Jones testified that the payment had occurred just recently-after this lawsuit was filed. Mr. Jones acknowledged that Bedeschi had informed NAFCO several times that Essar had made no payments to Dearborn. But Mr. Jones testified that these statements were accurate when Bedeschi made them because Essar had not yet paid Dearborn.

         Bedeschi now has received payment (from Essar through Dearborn) for 39 of the 42 loads of steel that NAFCO delivered to the Essar Project. Bedeschi has not paid NAFCO's invoices because the parties have not agreed on the amount that Bedeschi owes NAFCO. Bedeschi has told NAFCO several times that Bedeschi could not pay its invoices because NAFCO had not provided sufficient documentation to support them. Mr. Jones described the invoices as “not yet valid” because they lack proper documentation. Doc. 97-2 at 48-49 (Jones Dep. 260:20-261:8). And for this reason, Bedeschi has not paid the invoices. Bedeschi acknowledges, though, that its suspension and resumption of shipments probably caused NAFCO to incur increases in the cost of work, costs stemming from inefficiencies, and loss of productivity. But Bedeschi has not received information showing that NAFCO experienced these increases from the suspension and resumption of shipments.

         On October 4, 2017, Bedeschi paid NAFCO $944, 378.30. Bedeschi believed it owed NAFCO this amount for the final 34 shipments of product under the Contract, plus a portion of the additional charges that NAFCO had claimed. Bedeschi also provided a reconciliation showing the method Bedeschi had used to calculate the payment amount. This payment was the first one that Bedeschi made for the 34 shipments that NAFCO had delivered between May and July 2016.

         Bedeschi's Estimates of Costs for the Essar Project

         After Bedeschi suspended NAFCO's work in December 2015, but before it resumed NAFCO's shipments to Essar in May 2016, Mr. Jones prepared a document titled “Essar Vendor Recap.” Mr. Jones prepared the Essar Vendor Recap document to estimate Bedeschi's potential exposure to its vendors, including NAFCO, on the Essar project. As of February 22, 2016 (when Mr. Jones sent the Essar Vendor Recap in an email), Bedeschi estimated that it owed NAFCO $1, 297, 425.40. Mr. Jones reached this estimate using the information that he had at the time. And he based the estimate on Essar potentially cancelling the project. So the estimate included costs NAFCO had incurred as of February 22, 2016, but not additional costs NAFCO would incur if Bedeschi resumed shipments.

         Mr. Jones also drafted a document titled “NAFCO Estimate Summary.” He prepared this document to estimate NAFCO's “hard costs” for the Essar project. Doc. 85-3 at 143 (Jones Dep. 410:20-24). The NAFCO Estimate Summary reflects Bedeschi's estimation of NAFCO's cost of materials based on average cost per pound, buyouts and additional engineering changes, storage, ...

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