United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit ____________ FILED August 16, 2024 No. 23-40137 Lyle W. Cayce ____________ Clerk Diamond Services Corporation,

Plaintiff—Appellant,

versus RLB Contracting, Incorporated; Harbor Dredging, Incorporated; Travelers Casualty and Surety Company of America,

Defendants—Appellees. ______________________________

Appeal from the United States District Court for the Southern District of Texas USDC No. 3:21-CV-253 ______________________________ Before Graves, Higginson, and Ho, Circuit Judges. Stephen A. Higginson, Circuit Judge: This interlocutory appeal concerns a dispute between, on one side, a sub-subcontractor, and on the other, a contractor, subcontractor, and insurance company, over a contract for pipeline dredging in the Houston Ship Channel. We AFFIRM in part and DISMISS in part. I. We set forth below the factual and procedural background of this appeal. Case: 23-40137 Document: 81-1 Page: 2 Date Filed: 08/16/2024

No. 23-40137

A. On September 4, 2019, the U.S. Army Corps of Engineers, Galveston Division (“the Corps”) awarded RLB Contracting (“RLB”) a contract (“prime contract”) for pipeline dredging in the Houston Ship Channel. As required by the contract and the Miller Act, 40 U.S.C. §§ 3131 et seq., RLB furnished a surety bond which it obtained from Travelers Casualty and Surety Company of America (“Travelers”). To assist it in dredging the volume called for by the Corps, RLB entered into a subcontract with Harbor Dredging (“Harbor”). Harbor, in turn, entered into a sub-subcontract with Diamond Services Corporation (“Diamond”) for the dredge work. As part of its obligations under the sub-subcontract, Diamond was “responsible for traversing the hopper barges from excavation site to the unloading site” and Diamond was required to perform, among other things, “all work necessary or incidental to complete” its work on the project. During the performance of the project, the parties encountered “differing site conditions” in the area where Diamond’s dredge was excavating material. The unanticipated presence of tires in the channel, as well as other issues, slowed down the job considerably. Diamond determined that it would not be able to continue the project profitably. Agents of RLB, Harbor, and Diamond met to discuss the situation, and Diamond threatened to leave the project absent changes. In October 2020, RLB submitted a request for equitable adjustment (“REA”) of the prime contract to the Corps. In Diamond’s view, RLB and Harbor had agreed to compensate Diamond out of the REA using a measured-mile calculation, though in what proportion or for how much was left unsaid because it was, at the time, “unknowable.” As explained by the parties, a measured-mile calculation in this context involves comparing dredging costs incurred during a set period where differing site conditions

2 Case: 23-40137 Document: 81-1 Page: 3 Date Filed: 08/16/2024

No. 23-40137

interrupted operations to dredging costs completed during the same period where differing site conditions did not interrupt operat