                ARMED SERVICES BOARD OF CONTRACT APPEALS

Appeal of --                                   )
                                               )
Parsons Evergreene, LLC                        )      ASBCA No. 58634
                                               )
Under Contract No. FA8903-04-D-8703            )

APPEARANCES FOR THE APPELLANT:                         Douglas S. Oles, Esq.
                                                       James F. Nagle, Esq.
                                                      ·Adam K. Lasky, Esq.
                                                       Howard W. Roth III, Esq.
                                                        Oles Morrison Rinker & Baker LLP
                                                        Seattle, WA

APPEARANCES FOR THE GOVERNMENT: .                     Jeffrey P. Hildebrant, Esq.
                                                       Air Force Deputy Chief Trial Attorney
                                                      Michelle D. Coleman, Esq.
                                                       Trial Attorney

                  OPINION BY ADMINISTRATIVE JUDGE CLARKE

        This appeal I involves the design and construction of a Temporary Lodging Facility
and Visitor Quarters at McGuire Air Force Base (MAFB), New Jersey. The project was a
"Design-Build Plus" arrangement having two phases: the concept definition phase and the
completion of design and construction phase. Appellant, Parsons Evergreene, LLC's (PE's'
or Parsons'), claims arise out of the second phase. PE claim·s $28,843,173 based on a variety
of problems it experienced. As discussed at the end of this decision, we have jurisdiction
pursuant to the Contract Disputes Act of 1978 (CDA), 41 U.S.C. §§ 7101-7109. We sustain
in part and deny in part. We sustain in the amount of$10,519,082.

                                   FINDINGS OF FACT

Temporary Lodging Facility (TLF) & Visiting Quarters (VQ) Project at MAFB

       1. The TLFNQ project is located on MAFB. The TLF facility provides a
50-unit transitional housing facility for military and civilian personnel until permanent

1
    For reasons of judicial efficiency and clarity, pursuant to a separate order issued
         today, we address the subject of government liability for costs associated with
         allegedly tardy requests for payroll records in a separate opinion under a new
         appeal numb~r, ASBCA No. 61784, though it was fully litigated under the
         present appeal.
housing can be obtained. It includes one and two bedroom units with living room,
dining/kitchen, bath and storage. The VQ is a 175-unit facility similar to a hotel with
individual rooms with private baths. (R4, tab 7 at 20 2 ) The project employed a
"Design-Build-Plus 03" 3 (DBP03) process that integrated the DBP03 contractor, a .
contractor with experience in construction, with the concept definition contractor, a
contractor with experience in architectural design (id. at 19, 21 ).

Concept Definition (CD)4

        2. The CD contractor for the MAFB TLFNQ project was Michael Baker &
Associates (Baker) 5 (tr. 5/8-10, 11/60; R4, tab 20C at 10). 6 The CD effort focus,ed on
"site, civil and architectural" design with "varied levels of development within
structural, mechanical, electrical and fire protection/detection" (id.). The objective of
the CD phase was to produce a 35% design that would be used to award the design ·
completion and construction contract.

       3. Between 4 August 2003 and 27 February 2004, the Air Force Materiel Command
(AFMC) issued task orders TG 17 and TG31 to Contract No. F41622-02-D-0003 (contract
0003) 7 in the total amount of $255,276 for DBP03 services to Parsons Infrastructure &
Technology Group Inc., San Antonio, Texas (PI&T) (R4, tab 20 at 1, tab 20A at 1-2,
tab 20B at 1, 6, tab 20C at 1-2). PI&T was a business unit of Parsons responsible for
management and business growth in Parson's government contracting business. It exists
today under a different name not identified in the record. (Tr. 1/110-11) Under TG 17 and
TG31, PI&T was to provide architectural and engineering services to Baker to develop the
35% design package for the TLFNQ (tr. 1/121; R4, tab 20C at 8). PI&T was the "DB+
A-E" (Design Build Plus - Architectural & Engineering) contractor supporting Baker (R4,
tab 20C at 8). Specifically. PI&T was to provide "surveys, site analysis, constructability


2
  All Rule 4 citations are to the PDF page numbers.
3 Design-Build-Plus 03 is referred to by various acronyms in the record: "DBP03,"
       "DB," "DB+," "DB+A-E" and "DB03Plus."
4
  This is sometirries referred to in the record as "Concept Design."
5
  The record does not include a copy of Baker's CD phase contract with the Air Force·
       (AF).
6
  The documentary record in this case is voluminous consisting of an electronic Rule 4
       having 3,443 tabs, many individual tabs having hundreds of pages, and numerous
       hearing exhibits. The majority of the documents in the record were not cited by
       the parties. The Board relies mainly on the documents identified by the parties in ·
       their collective 1,500 pages of briefs. When we say a document is "not in the
       record" we mean neither party cited to it or we did not independently identify it.
       It is not an absolute confirmation that it is not somewhere in the voluminous
       record.
7
  Contract No. F41622-02-D-0003 is not in the record.
                                             2
 .reviews, design review com~ents, attendance at conferences for comment resolution, and
  project cost validation" (id. at 9).

 CD & Progressive Collapse

         4. Mr. Basham is an architect who was accepted by the Board as an expert in
 design-build contracting for appellant (tr. 1/228, 239). He testified that progressive
 collapse is a phenomena that occurs when certain members of a building are damaged and
 weight is transferred to other members that cannot handle the weight and the building starts
 to collapse (tr. 2/7). A building designed to resist progressive collapse must have a
 back-up/redundant structural system so that failure is avoided (tr. 2/7, 11/51-52):

         5. Mr. Cochran is an architect who was the AF's project manager and design agent
 on the TLFNQ contract from June 2003 to November 2004 (tr. 11/6-7). Mr. Cochran
 explained that the purpose of a "charrette report" is "to prese_nt the functional and
 engineering criteria, design information, procedure and basis of design to document project
 requirements" (R4, tab 1474 at 5). The charrette report for the VQ was developed by
 Baker (tr. 11/55). The charrette report summary.of the VQ structural design does not
 specifically mention progressive collapse but does state at the end of section 3 .3 .4, ''Force
 Protection: The structural needs of the VQ are not affected by force protection if the
 25-rrieter standoff zone is maintained" (R4, tab 1474 at 27).

         6. A 9 September 2003 review of the VQ Charrette report by Ms. Hopkins, PI&T,
 included the following comment, "Ch 3, 3.3.4, pg 34[.] We suggest an alternate masonry
 wall design using structural brick (e.g., Interstate Atlas Brick). The advantage is a single
 brick wall system vs. two wall system (8" CMU and 4" brick veneer)" (R4, tab 467 at 2,
 cmt. 20, tab 1761 at 7). Baker responded to this suggestion with, "Baker has investigated
 the structural brick systems and do not believe that it is appropriate for this project" (R4,
 1761 at 7). Baker went on to explain why it rejected structural brick (id.). Mr. Ward, an
 architect with Baker, with assistance from Baker's engineers, wrote Baker's response
 (tr. 14/149). Mr. Ward recalled that the use of structural brick was suggested by PI&T and
 considered by Baker during-the 35% design phase b~t for a variety of reasons was not used
 (tr. 14/143, 149-53). Mr. Cochran recalled "some discussion on structural brick" during
 the 35% design phase but he did not recall receiving information on constructability, cost
 analysis, product specifications, etc. of the structural brick ·design (tr. 11/64).

         7. Ms. Willingham, Non-Appropriated Fund (NAF) program manager, reviewed
· the VQ Charrette report. Her 10 September 2003 comments, number nine, states:
  "3.3.4. The position taken by the designer that the 'structural needs of the VQ are not
  affected by force protection if the 25-meter standoff zone is maintained' is an incorrect
  assumption. The structure does have to be designed to resist progressive collapse {Ref.
  UFC4-010-0l, Standard 7) please re-evaluate." (R4, tab 468) 8

 8
     .   On this document the "ACTION" column is blank.
                                              3
      8. Mr. Cochran also reviewed the VQ Charrette report. An entry on the
Charrette Report review, dated 12 September 2003, reads:

               [Comment] Chapter 3, Section 3.3.4, page 34, Structural[.]
               This paragraph notes force protection is not a consideration
             . for structural needs. The charrette report should identity the
               threat level, and the structural system designed accordingly.
               Verify if the structural system.should be designed to prevent
               progressive collapse.

              [Action] Concur. In accordance with UFC 4-010-01, the
              structure wiH be designed to resist progressive collapse.

(R4, tab 2 at 753, cmt. 10) Mr. Cochran testified that the 35% design team agreed that
the VQ would be designed to resist progressive collapse (tr. 11/58-59). Mr. Cochran
testified that PI&T was responsible for validating that the 35% design included
resistance to progressive collapse (tr..11/59).

      , 9. Mr. Williams is an architect and was project manager with AF Services
during the VQ/TLF 35% CD phase through completion of the buildings (tr. 14/204, -
211 ). Mr. Williams testified that resistance to progressive collapse was a requirement
for the Cr;> phase of the VQ (tr. 14/206). During a meeting in December 2003 with
Baker, Mr. Williams told the design team that resistance to progressive collapse was a
requirement for the three story VQ (tr. 15/6-7).

        10. Mr; Bennett has practiced architecture since 1989 and is the owner ofKCB .
Architecture (tr. 5/6). During the CD phase Mr. Bennett worked for PI&T. He and two
other PI&T employees (Mr. Martin and Mr. Binks) worked with Baker during
development of the 35% design under a contract with the AF (tr. 5/8~9). Their job was
to look at the preliminary design of the project and constructability (tr. 5/9). However,
Mr. Bennett was not architect of record for the 35% CD (tr. 5/10). Mr. Bennett testified
that he did not recall a detailed discussion of progressive collapse during development
of the 35% design. The progressive collapse requirement was in the statement of work
(SOW) for the Baker 35% design, but he recalled it only played inJhe location and
orientation of the building not in the structural design of the VQ. (Tr. 5/94-95) After it
was awarded the contract, PE hired Mr. Bennett for its contract to complete the design
and construct the TLF and VQ (tr. 1/121). He was the architect of record for the
construction project (tr. 5/6-7). Mr. Lengyel, a licensed architect, worked for
Mr. Bennett and did the day-to-day design work (tr. 5/7). Mr. Aldave, a structural
engineer, also worked on his design team (tr. 4/174-75, 5/7-8).




                                             4
CD & Utilities

         11. Mr. Ward is an architect who worked for Baker and participated in the 35%
design of the VQ/TLF (tr. 14/115). He participated in the design charrette (tr. 14/115-16).
Mr ..Ward recalled that after Baker issued the 35% design they gave the "topographic and
utility survey that was done for the TLF and VQ site, in electronic format" to PE
(tr. 14/120). He recalled providing three files, the base map, computer-aided tracking, and
existing utilities (tr. 14/121-22; R4, tab 1762). The utilities Computer-Aided Design
(CAD) file was created based on "GTAB" 9 files provided by the AF (tr. 14/167-68).
Baker did not subcontract for a full utility survey during the 35% design. Baker relied on
GTAB utility information from the AF. (Tr. 188-89)

CD 35% Drawings

        12. Mr. Williams produced the 35% design drawings for the TLF and VQ
(tr. 14/133; R4, tabs 1745, 1746). The "Corrected Final Concept Design" drawings for the .
VQ are dated 18 May 2004 (R4, tab 1746). Each of the drawings for both buildings
include the following note. 10

                 ALL THE INFORMATION INCLUDED IN THE
                 REQUEST FOR PROPOSAL (RFP) CONSTRUCTION
                 DOCUMENTS REPRESENTS A 35% LEVEL OF
                 DESIGN AND IS NOT INTENDED TO REPRESENT A
                 COMPLETE SET OF CONSTRUCTION DOCUMENTS.
                 THIS.INFORMATION INCLUDES BUT IS NOT
                 LIMITED TO ALL GRAPHIC INFORMATION AND
                 VERBIAGE (TEXT) INCLUDED IN THE DRAWINGS.
                 SPECIFICATIONS, DESIGN ANALYSIS AS WELL AS
                 CID AND SID INTERIOR PACKAGE. THIS
                 INFORMATION ALSO INCLUDES QUANTITIES AND
                 CAPACITIES INCLUDING, BUT NOT LIMITED TO
                 ALL UTILITY REQUIREMENTS NEEDED TO
                 PROVIDE A FULLY OPERATIONAL FACILITY IN
                 ACCORDANCE WITH ALL APPLICABLE CODES AND
                 DESIGN GUIDELINES OUTLINED IN THE DESIGN
                 ANALYSIS. THE DESIGN-BUILD PLUS (DB+)
                 CONTRACTOR MUST COMPLETE THE DESIGN AND
                 CONSTRUCTION OF THE McGUIRE VISITING
                 QUARTERS TO A FULL.Y OPERATIONAL LEVEL OF
               . COMPLETION IN ACCORDANCE WITH THE INTENT

9
     In the record these are variously referred to as GTAB, G-TAB and G-Tab.
10
      The only difference in this note is that the TLF drawings refer to the TLF and the VQ
          drawings refer to the VQ.
                                              5
               OF ALL DESIGN(S) REPRESENTED IN THE (RFP)
               CONSTRUCTION DOCUMENTS. THE DB+
               CONTRACTOR MUST MEET ALL DESIGN
               REQUIREMENTS, CODES AND STAND ARDS SET
               FORTH IN THE RFP AND MUST FOLLOW THE FULL
               DESIGN INTENT REPRESENTED IN THE RFP
               CONSTRUCTION DOCUMENTS. IN THE EVENT ANY .
               OF THE REQUEST FOR PROPOSAL INFORMATION
               REPRESENTED IN THE DRAWINGS;
               SPECIFICATIONS, DESIGN ANALYSIS OR CID AND
               SID INTERIOR DESIGN PACKAGE MAY BE IN
               CONFLICT, THE DB+ CONTRACTOR WILL BE
               REQUIRED TO PROVIDE THE MOST STRINGENT
               REQUIREMENT(S). THIS PROVISION WILL NOT
               WARRANT ANY INCREASE IN THE CONSTRUCTION
               COST LIMIT (CCL) OF THE DESIGN BUILD PLUS
               CONTRACT AMOUNT.

(R4, tabs 1745-46) Drawing notes for both buildings referred to MAFB architectural
standards (R4, tab 1745 at L-101, tab 1746 at L-101, 502). RFP 8234 specified that the
"face brick" for the two buildings would be:

               Brick: Face brick
               1. Red Brick: Richtex Corporation, Type D-80, Shade-223
                . flashed range wirecut. Size 2-1/4 in. x 3-5/8 in. x 7-5/8
                  in. ASTM C 216, Grade SW, Type FBS. Or BCE
                  approved equal.

(R4, tab 2 at 465, 1047)

       13. VQ 35% drawings C-102, Site Demolition Plan, C-103, Utilities Demolition
Plan, C-104, Site Geometry and Paving Plan, C-105, Site Utility Plan, and C-106, Storm
Drainage and Grading Plan" each have a version 11 of the following note:.

                 1. THE LOCATION OF ALL EXISTING UTILITIES
               . SHOWN ARE APPROXIMATE BASED ON G-TAB
              . MAPPING FROM MCGUIRE AFB CIVIL
              · ENGINEERING SQ. THE HORIZONTAL AND
                VERTICAL LOCATIONS OF ALL EXISTING
                UTILITIES SHALL BE VERIFIED BY THE
                CONTRACTOR PRIOR TO CONSTRUCTION,
                PARTICULARLY AT NEW PIPE CROSSINGS.

11
     Drawings C-102, C-103 and C-104 have slightly different shorter versions of this note.
                                             6
(R4, tab 1746 at 4-8) Mr. Temchin, vice president of program management with Parsons
(tr. 2/96), testified that Parsons went to the base "field shop" where the drawings were
maintained and asked for the drawings showing what was in the ground. The base
maintained two sets of "G-Tab" drawings, one for active utilities and one for abandoned
utilities. The abandoned utilities G-:-Tab drawings were never given· to PE. (Tr. 5/242-43)

      14. VQ 35% drawing C-106, Storm Drainage and Grading Plan, includes a
stormwater detention basin, sometimes referred to as a "pond," and includes the following
note:

               3. THE SIZE OF THE STORMWATERDETENTION
               BASIN WAS APPROXIMATED BASED ON
               CONTROLLING THE PEAK OF THE 1.5 YEAR STORM
               EVENT. DURING FINAL DESIGN, A DETAILED .
               HYDRAULIC ANALYSIS SHALL BE CONDUCTED AT
               THE EXISTING CULVERTS DOWNSTREAM OF THE
               BASIN OUTFALL (ACROSS MITCHELL ROAD) TO
               DETERMINE IF A LESS-FREQUENT, HIGHER-
               MAGNITUDE DESIGN STORM WOULD BE
               APPROPRIATE. DURING FINAL DESIGN, THE
               CONTRACTOR MAY CONSIDER OTHER OPTIONS TO
               ADDRESS THE INCREASED PEAK FLOWS
               INCLUDING UNDERGROUND DETENTION,
               OVERSIZED STORM DRAIN PIPES, AND/OR
               UPGRADING THE MITCHELL ROAD CULVERTS, OR
               DO NOTHING AND ACCEPT THE CONSEQUENCES
               OF HIGHER FLOWS. FINAL DETERMINATION
               REGARDING SWM SHALL BE MADE DURING FINAL
               DESIGN. IF SWM IS DISCARDED, THE STORM
               DRAIN SYSTEM COULD BE RE-CONFIGURED TO
               MORE DIRECTLY DISCHARGE lNTO THE CHANNEL
               ALONG MITCHELL ROAD.

(R4, tab 1746 at 8, drawing C-106) The VQ 35% design, drawing C-106, Storm Drainage
and Grading Plan, shows a "Stormwater Basin" with "BOTTOM ELEVATION= 106.00"
(id.). Mr. Morrison, AF Center for Engineering and the Environment (AFCEE) 12 (R4, tab
213 at 337), program manager, testified that the EPA required that stormwater be retained
on the site but that a basin was "problematic in or near an airport or an Air Force base
because birds collect there and they're problematic for aircraft" (tr. 11/220). He explained
that the basin on drawing C-106 was 'just a place holder on the low spot on the site" and the


12
     AFCEE provided technical support to the contracting officer (R4, tab 213 at 337).
                                             7
contractor would have to do a percolation test to see how much water the basin would .
absorb in a 12 to 24 hour period to design the basin (tr. 11 /221).

IDIQ Contract

       15. On 12 December 2003 AFMC awarded Parsons Infrastructure and Technology
(PI&T), indefinite-delivery, in.definite-quantity (IDIQ) Contract No. FA8903-04-D-8703
(contract 8703) in the total program amount of amount of$2.1 billion (R4, tab 1 at 1-5).
The contract provided that planning and programming (CLIN 1), constructability and
parametric estimates (CLIN 2), and construction (CLIN 3) services would be detailed
under "subsequent task order Statements of Work (SOW)" (id. at 2-5). Contract 8703
incorporated FAR 52.233-1, DISPUTES (JUL2002)-ALTERNATE I (DEC 1991); and
FAR 52.23.6-2, DIFFERfNG SITE CONDITIONS (APR 1984) (R4, tab 1 at 24).

Demolition Work

         16. The VQ was to be constructed in a location where swimming pools existed
that required demolition (R4, tab 1746 at 4, drawing C-102). By email dated 29 April
2004 to Ms. Willingham, Mr.- Cochran, AFCEE, expressed concern that the demolition
of the pools had to be properly monitored to ensure that select fill was placed in the pool
excavation to avoid "unforeseen site conditions" (tr. 11/92-94; R4, tab 4248 at 2). By
email dated 14 May 2004 to Mr. Martin, PE's 13 project manager, !Lt McAlpine, project
manager, Civil Engineer Squadron; MAFB, informed him that another contractor would
perform the demolition of the Officer's Club pools and that contractor "would need to
ensure the backfill was placed in compacted lifts to ensure it would be suitable for the
future building" (R4, tab 3831 at 3). Mr. Martin responded 14 on 16 May 2004 stating
that the calculations for structural fill could not be completed until PE received the final
DB+ contract and if the fill placed by the demolition contractor did not meet the fill
requirements, it would have to be removed and replaced by PE at AF expense (id. at 3).
Mr. Cochran responded to Mr. Martin on 17 May 2004 stating that the backfill
requirements for the demolition contract were standard specifications on MAFB -and
should be acceptable for construction and that no additional costs would be expected
(id. at 2). Mr. Martin responded on 17 May 2004 stating that had PE been selected to
do the demolition the adequacy of the fill would ,not be an issue (id. at 1).

Novationfrom PI&T to PE

       17. PI&T was involved in Parsons' purchase of "Evergreene" a construction
company, renamed Parsons Evergreene (PE) (tr. 1/110-11). Modification No. POOOOI to
contract 8703, dated 7 September 2004, changed the contractor from PI&T to PE based on
a novation (R4, tab IA).

13   PI&T had not yet novated the contract to PE.
14
     Mr. Martin's email address was Tony.Martin@parsonsevergreene.com (R4, tab 3831 at 2).
                                             8
 Request for Proposals (R.FP) for 100% Design and Construction Task Order

          18. Request for Proposal (RFP) No. FA8903-05-R-8234 (RFP 8234), dated
  10 February 2005, solicited proposals for the task order (T0) 15 under contract 8703 to
  complete the 100% design (from the 35% design) and construction of the TLF and VQ
  (R4, tab 2 at 1). 16 The Baker 35% design analysis is the basis for the RFP (tr. 5/62; R4,
. tab 2 at 692). RFP 8234 included the Independent Government Estimate (IGE) for the VQ
  of $17,977,243 and TLF of$15,373,500 for a total of $33,350,743 (R4, tab 2 at 2) ..
  Award was to be "to the contractor offering the lowest price" (id.). RFP 8234 included
  the SOW for the TLF, PTFL 04-5000, and the VQ, PTFL 02-3004 (ic/. at 1). Bidders were
  informed "Only upon receipt of the executed TO will you commence work" (id. at 2).
  The notice to proceed (NTP) was to be issued not later than 30 days after award and,
  "Construction services shall not commence until the bortds have been submitted and
  approved and a NTP has been issued by the Contracting Officer" (id.).

        19. RFP 8234 includes a SOW, dated 20 January 2005, for the TLF and VQ that
 includes the following note to paragraph 3 .0 Scope:

                Note: Site demolition is not required. The demolition has
                been accomplished locally by others. The site is clean and
                ready for construction. Mock-up rooms for the VQ are not
                required in this project. All references to mockup rooms are
                not applicable.

 (R4, tab 2 at 5)

         20. RFP 8234 includes the following concerning the construction site:

                1.7 DATABASE: These specificat.ions and accompanying
                    drawings were prepared using data derived from the
                    original construction drawings and from site visits. The
                    construction shown shall not be construed as exact or
                    complete nor are minor variations covered. It is
                    recognized that site conditions referred to vary and that
                    those building and site conditions ordinarily
                    encountered and generally recognized as inherent in
                    work of this character may include variations. The

 15
      Task order and delivery order are used interchangeably in the documents.
 16
      The PDF page numbers in Rule 4, tab 2, do not match the numbers marked on the
         pages. There are 1,874 PDF pages in tab 2. The.last page number marked on the
         page is 2,434. The AF brief refers to numbers marked on the pages but we use
         the PDF page numbers.
                                              9
                     contractor shall he responsible for determining the exact
                     conditions at the site and building and shall accept
                     them, as they exist at the time of contract award,
                     regardless of whether or not the contractor visited the
                     site prior to award: The contractor shall verify. all
                     measurements of existing conditions before ordering
                     sized materials. If materials are ordered on the basis of
                     what is shown on the construction drawings without
                     verification of existing conditions, the contractor does
                     so at his/her own risk and expense. All existing field
                     conditions shall be accounted for in all required shop
                     drawings. Actual dimensions and elevations take
                     precedence over any shown in the contract drawings.

(R4, tab 2 at 287) 17

       21. RFP 8234 require~ submission of a Critical Path Schedule and included an
estimated "Design/Construction Schedule" starting with contract award on 15 February
2005 (R4, tab 2 at 294). It also included procedures for submittals:

               . SECTION 01330-SUBMITTAL PROCEDURES



                 1.6 PROCEDURES FOR SUB MITTALS

                C. Scheduling .



                   . 2. Except as specified otherwise, allow review period,
                        beginning with receipt by approving authority, that
                        includes at least 15 working days for submittals for
                        QC [Quality Control] Manager approval and 20
                        working days for submittals for contracting officer
                        approval. Period of review for submittals with
                        contracting officer approval begins when the
                        Contracting Officer receives submittal from QC
                        organiz~tion .. Period of review for each resubmittal is
                        the same as for initial submittal.

17
     This paragraph is found on a page identified with the TLF, however, we interpret it to
         ·apply equally to the VQ because pages for the VQ and TLF are comingled in
          RFP 8234 (R4, tab 2 at 350-51).
                                               10
(R4, tab 2 at 330, 337) The "QC Organization Responsibilities" section requires that
the date of receipt from the contractor be noted on each submittal. The QC organization
then reviews the submittal (id. at 339). When the QC manager is the approving
authority, the manager will take the appropriate action in accordance with specification
01330 paragraph J. 6. b~ (id. at 340). When the contracting officer (CO) is the
approving authority, the QC organization will certify that the submittal is acceptable
and forward it to the CO (id. at 339). RFP 8234 included a list of key personnel
identified as located in Texas, Illinois, and New Jersey (id. at 1757-58).

      22. RFP 8234 included the following concerning the High Temperature Hot
Water (HTHW) system:

                       The proposed high temperature hot water (HTHW)
                service line will connect to a new HTHW main line, which
                will connect at the.existing main along East Arnold Avenue
                Gust west of the VQ) and extend eastward to Mitchell Road.
                The new main will service both the new VQ and planned
                TLF facility on the other side of Mitchell Road. The
                capacity of the existing system at this point of connection
                shall be verified during final design.

(R4, tab 2 at 701)

       23. RFP 8234, Attachment No. 2 included a clause setting liquidated damages at
$5,043 a day that PE was late in completing the project (R4, tab 2 at 1807). It also
included a clause concerning "record drawings":

                _Record drawings showing existing underground utilities will
                be provided or made available to the Contractor. Record
                Drawings shall be made available by the base C.E. at
                McGuire AFB, NJ. Any utility-line shown on the record
                drawings (or made knownto the contractor) and damaged
                during construction work, will be repaired immediately by
                the contractor at no cost to the Government

(Id. at 1808)

      24. RFP 8234, Attachment #4 was Davis-Bacon Wage Determination
No. 120030002 dated 21 January 2005 (R4, tab 2 at 1811-34).




                                             11
RFP 8234 - Standing Seam Metal Roof

       25. RFP 8234 required a standing seam metal roof (SSl\!IR) for the TLF and VQ
(R4, tab 2 at 506, 1089). Specification Section 07411 Metal Roof Panels (SSSMR), 17
paragraph 1.6, "PRODUCTS," A.5. required, "Panels shall be manufactured of adequate ·
metal gauge an_d rigidity to eliminate any 'oil canning' effect" (R4, tab 2 at 507, 1090).
Oil canning is a waviness in the metal roofs (R4, tab 116 at 14).

        26. When PE contacted subcontractors to bid on the SSMR, they all took exception
to the requirement to "eliminate" oil canning stating that it could not be eliminated (tr.
3/87-88). Mr. Temchin, PE's vice president, testified that the first RFP language made "no .
sense" because it was impossible to "eliminate oil canning" (tr. 6/l 74r On 24 March 2005
Amendment No. 1 to RFP 8234. was issued (R4, tab 2A at 1). The language concerning the
SSMR was changed:

               5. COMPONENTS: SSSl\!IR.panels shall be 13 inches to 19
                  inches in width and standing seams shall be a minimum
                  of 2-1/2 inches in height. Though "oil canning" is
                  inherent in sheet metal formed panels. [sic] The panels
                  shall be manufactured of adequate metal gauge and
                  rigidity to eliminate or seriously minimize any "oil ..
                  canning" effect. The Government will not release any
                  Contractor/ Manufacturer liability for rejecting SSSMR
                  panels on the basis of the ''oil canning" effect on the final
                  installed system. All fasteners shall be concealed and
                 _applied sealants shall be the same color of the SSSMR
                  system.

(R4, tab 2A at 20) Liquidated damages were reduced from $5,043 to $1,347 per day. The
estimated construction costs were revised to VQ - $18,053,320 and TLF - $15,525,546.
(Id. at 1-2)

RFP 8234 -Amendment No. 2

       27. On 5 April 2005 Amendment No. 2 to RFP 8234 was issued (R4, tab 2B at 1). -
The amendment replaced the SOW with a revised version dated 31 March 2005 18 that
included the following:




17
     "SSSMR" stand for Structural Standing-Seam Metal Roof Panels (R4, tab 2 at 507).
         We use Standing Seam Metal Roof (SSMR).
18
     All future reference to the SOW refer to the 31 March 2005 version.
                                              12
                  \




                2.0 Purpose:




                [delete]
                Construct a 175 room multi story Visitors Quarters (VQ), a
                50 unit Temporary Lodging Facility (TLF), and all support
                facilities as identified and Needs Assessment Study. The
                rn10 projects 1,.vill be interconnected and constructed on
                adjacent sites.l 19 1

                 [substitute]
                 The contractor will utilize the t~ttached concept design to
               · generate the construction drawings and build a 175 room
                 multi-storv Visitors Quarters (VO), a 50 unit Temporarv
                 Lodging Facility (TLF) 011 adiacent sites.



                3.0 Scope:



                Note: Site demolition is not required. The demolition of
                the houses and swimming pools has been accomplished
                locally by others; remaining site 1rork and utiliD-' work pe1~
                the drawings is required. Electrical lines must be relocated
                and transformers removed and turned in to the base. +he
                site is elean and ready for constn1etion. Mockup rooms
                for the VQ are not required in this project. All references to
                mockup rooms are not applicable.

(R4, tab 2B at 6) 20 The SOW listed the attachments as, "Concept Design Documents
(2 CDs): TLF, VQ dated 5/18/2004, Rickenbacker October 2004" (id. at 11). The 35%
drawings are dated 18 May 2004 (R4, tabs 1745-46). Mr. Morrison was the AF
construction manager and contracting officer's representative (COR) for the TLF/VQ
project from January 2004 to September 2005 (tr. 11/153, 227). He drafted Amendment
No. 2 (tr. 11/165). He explained the change to the note was a response to questions from
bidders and the fact that "we realized that it might [be] clearer to say that the demo had

19
     This lined through language was riot shown in the amendment, it was simply deleted.
         We show it lined out here to enable comparison.
20
     The words in bold/strikethrough· were deleted (tr. 1/179-80). The words in italics and
         underlined were added.
                                              13
been accomplished but there still remains some utilities and electrical transformers, et
cetera, in that area. Again, the - the fill dirt was supposed to be clean, but we realized
there was some subsurface utilities that need to be dealtwith." (Tr. 11/165)

      28. SOW paragraph 3.2.2.2, Working Drawings, Construction, Delivery and
Warranty, reads: '                       ·

               At the conclusion of the CD phase, the Government will
               issue a separate task order with a RFP or RFQ and thus,
               transition from the Concept Definition Phase to the
               Construction Phase. During the Construction Phase, design
               completion, construction, and the delivery and warranting of
               the projec_t/facility takes place. It is the intent of the.
               Government to require the DBP03 contractor to use the
               results of studies and investigations conducted during the
               CD Phase by the same or a different DBP03 contractor. If
               the same DBP03 contractor performs these studies and
               investigations during the CD Phase and is awarded the
               Construction Phase task order for essentially the same
               project, then the DBP03 contractor is responsible for the
               results of its efforts during the CD Phase. See paragraph 7
               for possible Construction Phase tasks at the task order level.

(R4, tab 2B at 7) (Emphasis added)

Pre-Bid Questions and Answers

        29. The record contains three sets of pre-bid questions and answers (R4, tabs 4, 21
52, 25 22 ). We consider them in chronological order.· A pre-proposal conference was held
on 2 March 2005. Attendees submitted questions in the form of Requests for Information
(RFis ). Answers to the RFis were provided in a 22 March 2005 memorandum by
CO Macdecy 23 (R4, tab 52). Three of the RFI's and answers are:

               6. RFI:    It appears the VQ structure was designed without
                          a provision for progressive collapse. Is this
                         .feature not required for this facility?



21
     This document is also at Rule 4, tabs 24, 513.
22
     These same questions and answers were emailed to bidders on 20 April 2005 (R4, tab 518).
23
     Between 2004 and late 2005, Mr. Macdecy was the CO on the MAFB TLFNQ contract
         (tr. 10/161-62).


                                            14
              Answer: Yes, progressive collapse features are required for
                      VQ ! The architect of record resulting from the
                      award of a task order under the DBP03 concept
                      will be expected to include this feature in the final
                      stamped drawings.



              8. RFI:    Has any environmental testing been accomplished
                         post demolition and has an environmental
                         baseline of the site been established? If so, is it
                         available?

              Answer: No to all three questions. The site is clean and
                      ready for construction. The SOW utilized by the
                      base in the demolition contract did not require
                      compaction of fill dirt.



              l3. RFI:   Will copies of fill reports and geotech reports on
                         the demo'd pools be provided?

              Answer: No. A Geotech report for the swimming pools
                      does not exist. It should be assumed that soil
                      content is at least equivalent to the worst
                      condition level permitted in the Base Demo
                      contract requirements.

{R4, tab 52 at 2,. 3) Mr. Morrison, the AFCEE Program Manager, testified that the base
assured him that the backfill_would be clean but not compacted (tr. 11/161, 163-64).

       30. On 7 April 2005 PE received AF answers to various additional questions
(R4, tab 25 at 1). In an email dated 20 April 2005 to PE, with a copy sent to
CO Macdecy, Mr. Hillestad who worked as a contracted contract specialist for the
government during the RFP phase (tr. 10/ 114 ), sent out the same set of questions and
answers (R{ tab 518). Concerning the VQ, question and answer number 3 is as
follows: .

             3. Concerns continue to exist regarding the adequacy of the
                structure as shown in the_ 35% documents to satisfy the
                progressive collapse requirements. Confirm the
                structural adequacy of the pre-cast has been confirmed in
                the 35% submittal calculations. All roof loads and the

                                            15
                    line load of the third floor-are transferred to the third
                    floor hollow core planks (See Section 2 / A-302). Are
                    we allowed to substitute assemblies and structural
                    systems in order to be compliant with the progressive
                    collapse requirement provided the performance
                    requirements and appearance of the building are
                    satisfied. Yes, the drawings are concept only. You
                    have the responsibility to generate. the construction
                    details and drawings. Tim Morrison, AFCEE/HDM

                     Note[ 24J: A design to provide a facility compliant with
                     the Progressive Collapse criteria would require
                     substantial work at a considerable additional
                     compensation.

(R4, tab 25 at 3) A copy was sent to CO Macdecy (R4, tab 518 at 1). Drawing A-302 is
an architectural drawing that shows the Baker double wall design (R4, tab 1746 at A-302).
This question specifically points to Wall Section 2 on drawing A-302 where the thirq floor
roof load is transferred to the third floor hollow core plank. instead of the second floor
reinforce9 concrete masonry wall. We find that this is at least one place in the design     .
where the progressive collapse problem is found. Neither party presented testimony on the
meaning of the note warning of substantial work at considerable expense to provide a VQ
that meets progressive collapse. Mr. Bennett testified that this question and answer
demonstrated that the 3 5% design "was a concept that therefore needed to be fully fleshed
out and developed with the responsibility of the Design-Build tearri to do that very thing to
bring the design to the completion" (tr. 5/23).

       31. There were a total of 32 questions and answers in the memo and the statement (or
words to that effect) "The drawings are concept only. You have the responsibility to generate ·
the construction details and drawings. Tim Morrison, AFCEE/HDM" was used 7 times
therein in the responses to questions (TLF) Nos. 2, 3 (VQ) Nos. 1, 3, 12 (TLFNQ) Nos. 6, 7.
(R4, tab 25 at 2-6)

      · 32. A 5 April 2005 memo by CO Macdecy containing a set of consolidated
questions and answers was sent to the bidders on 7 April 2005 (answer in. bold italics):

                7. Page 6- The second paragraph references Buildings 33
                   and 3 5. These buildings do not appear anywhere near
                   the Sanitary POC on C-104. The scope of the
                   recommended "downstream survey" is hard to finitely


24
     This note was part of the original question (R4, tab 4363 at 4).

                                              16
                    estimate until a copy of the Base "G-Tabs"r 25 1 is
                    received.

                    Refer to attached "G-Tab" files that were provided to
                    the Title I AIE. DB+ contractor needs to verify that
                    these are the most up to date G-Tabs available.



                 15. Page 82- Item #8- Has the "Note 2" on C-104 been
                     modified to indicate the capacity of all utilities are
                     adequate as per response provided?

                    A site utility survey was not performed by Baker. .All
                    capacities were derived from G~Tab.information or
                    were provided by Base CE.



                 21. It is assumed that the location and elevation of all utility
                     "capped" locations "By Others" will be documented,
                     physically marked, and provided to successful offeror.

                     No information is available. Lines are capped at the
                     main and abandoned in place. Only the electrical
                     service must be relocated as part of this project per the
                     drawings.



                42. Page 6- Para 2.5- Should the service line from the new
                    HTHW main be tied into the main with a manhole and
                    valves? (See also question 13 above)

                      This is to be determined duringfinal design. The DB+
                    . contractor shall be required to address this.



25
     "G-Tab" drawings are a base map that purports to show all of the utilities and their
         location and identification (tr. 11/166). It was provided to all bidders (id.).
         Mr .. Morrison testified that the G-Tabs would show all of the locations accurately
         (tr.11/169).                                                     ·


                                               17
                    A minimum of two (2) new HTHW manholesl26 l shall
                    be required, one at the tee for the VQ and a second on
                    the TLF site POC. Note to all contractors there are a
                    lot of existing utilities along East Arnold gas, phone,
                    water, etc. (both sides). Extreme care will be required
                    when approaching and crossing east Arnold with the
                    HTHW/ines.

               ,.43. Page 6- Para 2.5- What is the capacity of the· existing
                     HTHW system at the proposed tie-in point?

                    Refer to the drawings (H-201). This will have to ~e
                    verified by the DB+ contractor.



                46. Page 28-Para 5.7.1- Last bullet- Ceilings in corridors
                    are indicated as GWB and at 9' -0". These will need to
                    be lowered to 8'-0" and 'revised to acoustical ceil_ing to
                    facilitate necessary water, electrical and communication
                    rough in fat each floor.

                     The space above the corridors was designed around a
                    9'-0" corridor ceiling height. This is only a 35% level
                    of design, so not every access panel is shown. There
                    are alternative design solutions that the DB+
                    contractor may have to implement in order to achieve
                    the design intent of the RFP drawings. The end user.
                    and the VQ design guides both specified the need for
                    gyp. board in the corridors and to have a 9'-0" ceiling
                    height. If the contractor feels they need to deviate
                  · from this requirement, then the base will have to
                    authorize this change.



                48. Page 32 - Civil -Are the results of the "key manhole
                    study" available yet?


26
     Neither party submitted evidence of the location of the two new manholes; however,
         one is "on the TLF site" and we found the other on VQ 100% drawing C-107
         where the new HTHW line divides into two lines for the VQ and TLF, i.e., the
         ''tey" (R4, tab 1755 at sheet 9, drawing C-107). ·
                                              18
    A key manhole study was never performed. The
    design was based on information taken from the base
    map/G..,tab data.



51. Page 82'." Item 1- Is the scope of all required utility,
    demolition indicated on C-103 or will the Gov't use the
    "catch all" notes to require additional demolition
    without additional reimbursement?

    It remains the responsibility of the DB03Plus
    Contractor to determine requirements utilizing
    existing documentation and drawings to complete the
    final designs and project requirements. Should
    changes occur involving additional and/or
  . unanticipated work post mobilization, the Contractor
    has recourse under various provisions of the contract.

61. Dwg. C-102 & C-103 - Site visit revealed that some of
    the demolition indicated on this drawing has been
    accomplished. It is assumed that all demolition below
    grade has been completed in accordance with contract
    requirements and that all backfill is compacted in .
    accordance with contract requirements. What items
    indicated on this drawing have not been accomplished
    and remain part,ofthis contract? Are demolished
    utilities physically marked at capped locations?

     See the attached base demolition SOW to amendment
     #1. The backfill is clean but not compacted. Use the
     worst soil boring sample for calculations. Utilities
     are capped at the mains and lines abandoned in
     place. Electrical system must be re-routed and
   · transformers removed and turned in to the base.



68. Dwg. C-105 -Are there any HTHW manholes
    required?

    The DB+ Contractor will need to make this
    determination. However, a (minimum) of two (2) new
    HTHW manholes shat/be required, one at the tee for

                             19
                   the VQ and a second on the TLF site POC. Note to
                   all contractors there are a lot of existing utilities
                   along East Arnold gas, phone, water, etc. (both sides) .
                  .Extreme care will be required when approaching and
                   crossing east Arnold with the HTHW lines.



              70. Dwg. C-106 -Location of proposed HTHW line is
                  drawn through proposed storm drain lines, headwalls,
                  and catch basins. It is assumed that the location of the
                  new HTHW can be relocated south to avoid these
                  structures.

                   DB contractor shall be required to provide new
                   routing for all new utilities to avoid existing/new
                   structures, utilities, trees, etc.

(R4, tab 4 at 3-5, 7-10) Mr. Morrison testified about the answer to question 68:

             In our preliminary design, we determined that it looks like
             it's going to take tw<r--two new manholes and the lines
             would have to connect over East Arnold and there is a-
             there are a lot of utilities located there on both sides of the
             street, causing impact to that design, and allowing the
             contractor to decide whether to go above or below those
             existing utilities.

(Tr. 11/174-75)

      33. Mr. Morrison testified about the answer to RPI No. 46:

                    We've spent years coming up with these design
             guides through committees and policy groups where we
             decide how big the rooms are to be, what the ceiling height
             should be and the quality-the standard of living we want to
             provide our troops and their families and the nine foot
             ceiling height is what we've decided is appropriate.

                    And we expect the contractor to accommodate the
             nine foot ceiling height and his utilities will have to go·
             above that.



                                            20
(Tr. 11/171-72) Mr. Morrison testified that the AF's "requirements are much more
restrictive and stringent .and makes some of our customers hard to work with. We have
                                      .


a lot of details and we know what we're looking for and what we're willing to pay for.
So we don't-we don't leave a lot of flexibility." (Tr. 11/173)

        34. Mr. Temchin has a civil geotechnical professional license in New Jersey
(tr. 2/97). He spent half of his time on the MAFB project after April 2006 (tr. 2/99, 104,
116). Mr. Temchin interpreted the response to RFI No. 61 to "put the representation of the
clean site" back into the contract (tr. 7/144). He agreed that the AF indicated that the
backfill was not compacted (tr. 7/145). He testified that PE relied on this response to believe
that the backfill was clean (tr. 2/261). Mr. Radin, PE's senior vice president of contract &
procurement, testified that PE expected that the construction site would be ready for
construction (tr. 1/103, 129,225).

       35. By internal AF email to Mr. Williams, copy. furnished to CO Macdecy, dated
14 April 2005, Mr. Hillestad furnished all of the questions from bidders answered in the
memo provided to PE on 7 April 2005 (R4, tab 25). The copy attached to the email did not
include the answers provided on 7 April 2005 (R4, tab 4363 at 3-7). In his email,
Mr. Hillestad stated:

              The attached has all the markings of a show stopper! My
              PM is TDY through Friday so I am unable to get a
              professional opinion on the merits of the issues MWH is
              raising.



              From our standpoint, there is a question as to what latitude,
              if any, we are willing to allow the contractor in departing
              from specific criteria provided in the concept design? For
              example where an STC rating is specified or a wall type
              maqdated in the concept, can the contractor/designer depart
              from that callout or wall type and go another direction? If
              we allow that, where do we put on _the brakes in the extent
              of departure from the concept designs? On the other hand,
              if he can deviate and still meet code and our outcome
              expectations, should we back off and let him run? We need
              technical input in evaluating the issues raised.

(R4, tab 4363 at 1) Although Mr. Hillestad testified at the hearing, he was not asked to
provide clarification as to what he intended by this email or if there was any discussion of
his concern or any response (tr. 10/143-147).



                                            21 ·
         36. By email dated 15 April 2005 to bidders, Mr. Hillestad wrote:

                NOTICE TO ALL:
                Eff~ctive this date the time for submittal of additional
                questions is now closed. You are reminded that this
                project is being solicited and awarded under the.DBP03
                procedures. The contractor receiving the award will be
                required to complete the design process based on the 35%
                design criteria provided. Finished designs will comply .
                with all applicable national codes, Laws, Rules &
                Regulations in a matter that meets or exceeds accepted
                standards of the industry. Ambiguities and/or patently
                obvious errors in the concept design criteria will
                henceforth be resolved after receipt of proposals and
                prior to award.

(R4, tab 2 at 1836)

RFP 8234 - Progressive Collapse

        3 7. RFP 8234 also includes various AF review comments with responses from
Baker/PI&T from the CD phase. It includes the entry dated 12 September 2003 relating
to the review of the "Preliminary Design/Charrette Report" by Mr. Tom Cochran,
discussed above (finding 8), that states the· VQ design must resist progressive collapse.
(R4, tab 2 at 753)

        38. RFP "8234 SOW included the final Conceptual Design documents for the
TLF and VQ dated May 2004 (R4 tab 2 at 11, 692). The CD for the VQ incorporated
UFC 4-010-01, DoD Minimum Antiterrorism Standards for Buildings, 8 October 2004 27
(id. at 697). 28 The Unified Facilities Criteria (UFC) for design build technical
requirements provides guidance to military departments (R4, tab 505 at 3). The
TLFNQ project was a "full criteria" project that is the most "prescriptive approach" in
the UFC (tr. 11/22-24; R4, tab 505 at 14). Prescriptive means having the most
identification of requirements in the UFC (tr. 11/24). UFC 4-010-01 (see footnot~ 28)
included the following:



27
     PE states that by the time RFP 8234 was issued on 10 February 2005, a new and
        much more comprehensive UFC 4-023-03, dated 25 January 2005, entitled
        "Design of Buildings to Resist Progressive Collapse" had been issued, but that
        UFC is not in the RFP.
28
     UFC 4-010-01 is not in the record but is available at
        http://digital.library.unt.edu/ark%3A/6753 l/metadc 15548/.
                                            22
              B-2 STRUCTURAL DESIGN. If the minimum standoff
              distances are 8;Chieved, conventional construction should
              minimize the risk of mass casualties from a terrorist attack.
              Even if those standoff distances can be achieved, however,
              incorporate the following additional structural issues that
              must be incorporated into building designs to ensure that
              buildings do not experience progressive collapse.

              B-2.1 Standard 6. Progressive Collapse Avoidance.
              Progressive collapse is considered to be significant risk for
              buildings of three or more stories .... For all new and
              existing inhabited buildings ofthree stories or more, design
              the superstructure to sustain local damage with the structural
              system as a whole remaining stable and not being damaged
              to an extent disproportionate to the original local damage.
              Achieve this through an arrangement of the structural
              elements that provides stability to the entire structural
              system by transferring loads from any locally damaged
              region to adjacent regions capable of resisting those loads
              without collapse.

       39. By email dated 19 April 2005 to the bidders, Mr. Hillestad wrote the following:

              NOTICE TO ALL:
              In order to assure that everyone is basing their proposals on
              the same overall requirements, the following clarifications
              are provided:



              (2)   When addressing the progressive collapse design
                    requirements for the VQ at McGuire, the specified
                    threat level is "LOW".

              Further clarification should not be required. To the extent
              mis-information, erroneous, or misleading direction is
              contained in the RFP, appropriate corrections shall be
              accomplished in the award .document(s ).

(Tr. 11/217-18; R4, tab 92 at 2, tab 287)

     · ·40. Mr. Cochran testified that the Baker 35% design did not meet the requirements
for resisting progressive collapse (tr. 11/140-41 ). He added that the structural system was
not totally designed in the 35% design (tr. 11/141). Mr. Basham reviewed Michael Baker's

                                            23
 35% design and found that it was not designed to resist progressive collapse (tr. 2/7-9,
 86-87). PE agrees that the Baker 35% design did not account for progressive collapse (app.
 br. at 93). 29

 RFP 8234 - Triarch

      ' 41. RFP 8234 included the Temporary Lodging Facility "CID[3o1 CORRECTED
  FINAL SUBMISSION," May 2004 (R4, tab 2 at 11). This document included
  Specification Section 09911, Painting (Consumer Line Products), for the TLF that
 .specified "Duroplex -Triarch Industries" and "Plexture - Triarch Industries" for interior
  paints (tr. 10/117; R4, tab 2 at 569-70). Section 09911, paragraph 1.1 A., stated "Refer to
. CID package for selected Interior Paints(s)" (R4, tab 2 at 569). The TLF CID Interior
  Finish Schedule and Color Materials Schedule specified Triarch Antigua DS II for the
  walls and ceilings (id. at 19, 21).

         42. RFP 8234 includes the "Corrected Final Concept Design for Visiting
 Quai;ters - DESIGN ANALYSIS," May 2004 31 (R4, tab 2 at 692). This document
 includes Specification Section 09911, Painting (Consumer Line Products), for the VQ
 that specified "Duroplex -Triarch Industries" and "Plexture - Triarch Industries" for
 interior paints (tr. 10/117; R4, tab 2 at 1154-55). This document does not include an
 Interior Finish Schedule as did the CID for the TLF.

       43. The 35% drawings for the TLF and VQ include finish schedules. The 35%
 drawings for the TLF, dated May 2004, required "paint" identified as "TRIARCH
 INDUSTRIES ANTIQUA DS II" for the guest rooms (R4, tab 1745, drawing I-301).
 The 35% drawings for the VQ, dated 18 May 2004, required "paint" identified as
 "Sherwin Williams".for the guest rooms (R4, tab 1746, drawing ID-401).

      44. RFP 8234 included the following specification paragraph for the VQ in
 "SECTION 01012 - SPECIAL CONDITIONS":

                    1.2 INTERPRETATION OF THE DRAWINGS AND
                       · SPECIFICATIONS:

                    A. It shall be understood that concept design specifications
                       and drawings are complementary and are to be taken

 29
         We disagree with PE's characterization that the AF "added a major structural design
             change referred to as 'progressive collapse'" during the RFP process. (app. br. at ·
             93, 166). It was a requirement of the CD contract but was not incorporated in the.
             design.
 3
 31
     °   Comprehensive Interior Design (CID) (app. br. at 222).
         This document was not entitled "CID" but is very similar to the "CID" for the TLF but
             does not have a finish schedule and color and materials schedule (R4, tab 2 at 11-688).
                                                 24
                  together for a complete interpretation of the work.
                  Anything mentioned in the specifications and not shown
                  on the drawings, or shown on the drawings and not
                  mentioned in the specifications, shall be of like effect as
                  if shown or mentioned in both. In case of a difference
                  between the drawings and specifications, the .
                 specifications shall govern. In case of discrepancy in the
                  figures, in the drawings, or in the specifications, the
                  matter shall promptly be submitted to the CO who shall,
                  in consultation with CE, promptly render a decision in
                 .writing. Normally, the items of higher standard shall
                 govern. See FAR 52.236-21.

(R4, tab 2 at 882) (Emphasis added)

       45. The 5 April 2005 consolidated questions and answers sent to the bidders on
7 April 2005 included the following questions:

             44. Page 22 - Para 5.2.3 - 3rd bullet- CID package similar
             to the one provided for the TLF was not provided for the
             VQ.

              Yes see attachment to amendment #1 to the RFP.



             59. Page 50 - Item 20 - Is CID available?

             Yes, see amendment #1 to the RFP.

(R4, tab 4 at 7, 9) Amendment No. 1 to RFP 8234 does not include the CID for the VQ
(R4, tab 2A). There was no CID pamphlet for the VQ in the RFP 8234 (tr. 5/163, 210).
Based on the 5 April 2005 questions and answers for #44 and #59 and the fact that RFP
.8234 Amendment No. I does not have the VQ CID as indicated in the answers to these
questions, we find that the bidders did not have the VQ CID.

      46: By email dated 12 Aprii 2005 to prospective bidders, Mr. Hillestad sent the following:

             The paint spec for subject project remains as is for both
             facilities. A review of the paint spec for each facility
             confirms they are identical. Proceed with your proposal
             preparation accordingly.

(Tr. 10/115-16; R4, tab 286)

                                           25
           4 7. By internal email dated 13 April 2005 to Mr. Morrison, Mr. Hillestad wrote:

                   Confusion on the paint issue reigneth, at least in my mind.
                   When I look at the paint spec in section 09911 for both the
                 · TLF & VQ dtd 5/18/04, both specs call for Duroplex &
                   Plexture by Triarch Industries ($4.00 per sq· ft per Don
                   Hallett). When I looked at the CID for the TLF it calls for
                   the Triarch paint while the CID for the VQ calls for the
                   Sherwin Williams product throughout. Dunno guy. I think
                  :we got a problem, Hallett is standing firm on the difference.
                   In your absence 1 will go back to Steve Lyman and Dave
                   Williams to see ifl can get a consensus on the subject.
                   Evidently there is a great price differential between the two
                   products. i.e., $4.00 p/g (low side est) for the Sherwin
                   Williams to $4.00 per S!F(Per EarthTech) for the Triarch
I                  paint product.

    (R4, tab 4364 at 2)

         48. In another internal email dated 13 April 2005 to Mr. Williams, copy to
    Mr. Macdecy, Mr. Hillestad further explained the problem:

                 This is a subject that is not going away! We need to reach a
                 consensus ASAP. Here's \.vhat I have, please compare with
                 your notes or documents and let's talk. When looking at the
                 Paint section of the specs, Section 09911 <ltd 5/18/04, the
                 interior paints called out for both facilities is the Triarch
                 Product. Now go to the CID documents for the facilities
                 and you will find that the VQ finish specified is a Sherwin
                 Williams product while the CID for the ~LF calls for the
                 Triarch product. We are being called on the variance in the·
                 specs by the contractors. Apparently there is a significant
                 price difference in the two paint products. We need to send a
                 clear message on what precisely it is we want in the finished
                 product. My project Manager, Tim Morrison.· is TDY this
                 week and is trying to provide guidance, but he is delayed by
                 a day in getting back to me. Please take a look and see if we
                 can solve this before the day is out. Thanks.

    (R4, tab 4362 at 1-2) Mr. Williams responded on the same day stating, "What HQ
    AFSVA wants is what is specified In Section 09911 (the Triarch Product)" (id. at 1).



                                                26
       49. By email dated 19 April 2005 to the bidders, Mr. Hillestad wrote the following:

              NOTICE TO ALL:
              In order to assure that everyone is basing their proposals on
              the same overall requirements, the following clarifications·
              are provided

              (1) The interior paint specification shall be construed as
                  "BRAND NAME OR EQUAL." Substitutions for the
                  Brand name "TRIARCH Architectural Finishes" shall
                  meet or exceed the salient characteristics established in
                  par 1.4 A., in Section 09911 - Painting (Consumer Line
                  Products)- dated 5/18/2004 set forth in the specifications
                  provided.



              Further clarification should not be required. To the extent
              mis-information, erroneous, or misleading direction is
              contained in the RFP, appropriate corrections shall be
              accomplished in the award document(s).

(Tr. 11/217-18; R4, 92 at 2, tab 287) The "interior paint Specification" Mr. Hillestad was
referring to was RFP 8234 Specification Section 09911, Painting (Consumer Line Products)
(tr. 10/116-17). By another email dated 19 April 2005, to the bidders, Mr. Hillestad stated:

              Subject: McGuire - VQ/TLF - Paint issue

              To All:
              A further note re: interior paint specs for above projects.

              The Triarch or equal product will only be applied to the
              interior walls of the structures. A satin finish paint in the
              color ~pecified shall be applied to the ceilings. This should
              conclude the· interior paint products questions.

(Tr. 10/118; R4, tab 288) PE acknowledged receipt of these "Additional clarifications"
(R4, tab 92 at 1).

        50. Mr. Tengler, PE's chief estimator, testified that in developing its bid for
interior finishes, PE used a bid from Testino's that omitted "wall coverings" for the VQ
(tr. 4/80). PE had a higher bid from Pro-Spec for the VQ that included wall coverings
that was not used (tr. 4/81). We find this mistake likely caused PE to under-bid the wall
finish work for the VQ.

                                            27
RFP 8234 - StormWater Detention Pond

       51. RFP 8234 included various meeting minutes. The minutes from the
"Intermediate Design Review" meeting held on 7 November 2003 included a discussion
of storm-water management:

              [Action \tern] Base CE raised concerns regarding the
              proposed stormwater management pond that the pond would
              hold water for extended periods and be a bird attractant
              close to a runway and that it would tum into a "marsh".
              Baker indicated [its] concern for potential increased
              frequency of flooding along and over Mitchell Road if
              surface 11,moff from the project was not controlled. A·
              detailed hydraulic analysis for proposed. conditions .would
              certainly need to be conducted if no storm water
              management was provided to determine the increased
              frequency of flooding over Mitchell Road. Following
              further discussions, it was decided that storm water
              management would be shown with options:
              -- Open SWM Pond (as shown on intermediate plans)-
              Base Bid
              -- Underground SWM System - Optional
              -- Replace Mitchell Road Culvert system - Optional
              -- Do nothing and allow increased frequency of flooding
              over Mitchell Road. If the 3rd or 4th options are pursued, a
              detailed and comprehensive hydraulic analysis must be
              conducted.

              [Status] Hydrant Flow Test provided 11/4/03. Design
              solution pending

(R4, tab 2 at 734)

     52. A final_ design review meeting was held on 14 January 2004 (R4, tab 2 at 743).
RFP 8234 includes minutes of the meeting including the following:

              3. Baker was given direction to remove the retaining pond
              from the project. Alternative solutions will be investigated.

              Responsible Party: Joe Bellini - Civil
              Status: Completed

(R4, tab 2 at 743)

                                           28
    · 53. RFP 8234 includes an entry dated 6 January 2004 relating to "General" and
"100% RFP" from Ms. Willingham, HQ AMC, Scott AFB, reads:

              [Comment] Detention Pond. For the last two years McGuire
              has experienced greater saturation of the soil so problems
              have occurred with drainage. Please make provisions to
              insure the detention pond has the correct capacity and
              design.

              [Action] The intent with the detention basin is to store
              increased runoff temporarily during the rainfall event to
              control peak flows. The size of the detention basin shown
              on the grading plan was approximated to control the
              LS-year storm per LEEDS recommendations. The size may
              increase if it is determined during final design that the
              runoff will increase in frequency and magnitude of flooding
              over Mitchell Road.

(R4, tab 2 at 760)

      54. RFP 8234 includes another entry dated 7 January 2004 relating to "Architecture"
and "Final D,esign (95%)" from Mr. Bennett, PE:

              [Comment] If the north parking.can have storm water feed
              directly into the culvert, can the central parking do the same
              as well? This is a LEEDS issue as to how much water goes
              through the detention basin before entering downstream.
              Where do we stand on this issue? We would like to simplify
              the storm drainage piping from the central entry parking lots
              to the south parking lots,

              [Response/Action] Consensus was reached to leave the
              basin in the project so the costs could be captured if deemed
              necessary. We have a note on sheet C-106 that provides
              several alternatives to the basin (including eliminating
              storm-water detention all together) and indicates that a final
              determination on the basin shall be made during final
              design. The note also indicates that if it is determined
              during final design that the storm-water basin could be
              eliminated, the storm drain system could be re-routed to
              more directly connect to the Mitchell Road channel. The
              north parking area was allowed to discharge directly into the
              channel because an existing impervious area just west of the

                                           29
              VQ, roughly equivalent in area, is draining to the basin to
              compensate for bypassing runoff from the new north
              parking area.

(R4, tab 2 at 763-64)

      5 5. RFP 8234 includes a very similar entry dated 13 January 2004 relati,ng to "Civil
Engineer Squadron" MAFB and "Final Design (95%)" from lLt McAlpine:

              [Comment] The retention pond needs to be removed from
              the project. Another alternative for storm water drainage
              must be determined.

              [Response/Action] Do not concur. Consensus was reached
              to leave the basin in the project so the costs could be
              captured if deemed necessary. We have a note on sheet
              C-106 that provides several alternatives to the basin
              (including eliminating storm water detention all together)
              and indicates that a final determination on the basin status
              shall be made during final design.

(R4, tab 2 at 777) Mr. Williams testified that the AF knew the base did not want a
detention pond but did not have the detention pond removed from the 35% design
because it was too expensive to go to underground storage (tr. 15/94-95).

RFP 8234 .Utilities

         56. RFP 8234 included 6 January 2004 review comments by Parsons relating to
utilities with AF responses (R4, tab 2 at 244 ):

             26 CS 101 Need to show all existing utilities, sizes and invert
             elevations.

             RESP: Noted.
             The survey base mapping shows existing utilities, including
             sizes and.invert elevations for all gravity systems (sanitary
             and storm).

             27 CD101 Need to show all existing utilities to be removed.
             and/or relocated with existing sizes and invert elevations.

             RESP: Noted.
             Existing utilities to be removed is shown on the Demolition
             Plan and is as complete and accurate as the survey. Sizes

                                           30
                and invert elevations of existing systems are also shown to
                the extent they are shown on the survey.



                29 CUI01 All proposed utility systems need to be identified
                with invert elevations, sizes, locations, type of materials,
                Communications lines need to be included.

                RESP: Noted.
                All proposed utilities are shown on the Site Utility Plan.
                Invert elevations, pipe sizes, and material types are outside
                the scope of the RFP design documents.

(R4, tab 2 at 245) ·

RFP 8234 Geotechnical Report

        57. RPF 8234 included a copy of Professional Service Industries, Inc. (PSI)
Geotechnical Engineering Services Report for the MAFB VQ, dated 24 November 2003
(R4, tab 2 at 809-10, 822-37). The report indicated it was prepared for "Parsons
Engineering Science" San Antonio, Texas (id. at 810). The report included soil boring
logs at 12 boring locations (id. at 824-37). The boring locations and depths were ·
selected by Parsons Engineering (id. at 814). The written summary of the subsurface
conditions beneath the VQ identified, "tan, browri. gray Sand (SP) and Silty Sand (SM)
with Silt (ML) and Clay (CL) strata of varying thickness and at varying depths" (id.).
Although there was no mention of organic material in the narrative results, boring log
B-0 IA indicated "Trace amounts of organics observed at 10 ft" (id. at 825). The
"Geotechnical Discussion" included:

                       The data developed during this study indicate that the
                soil and groundwater conditions at the proposed site of the
                Visiting Quarters are generally considered suitable for the
                construction of the proposed structures and pavements areas
                provided that recommendations presented in.this report are
                implemented.

(R4, tab 2 at 815) The "Water Level Measurements" section of the report stated: "Free
groundwater was observed between 6 and 13 feet bgs[32 J the borings upon completion.
Please note that groundwater levels can vary depending on climatic and rainfall
conditions." (Id. at 815)


32
     "Bgs" refers to "below ground surface" (gov't br. at 40).
                                             31
PE 's Executive Proposal Review

       58. Prior to submitting its proposal, PE conducted an Executive Proposal
_Review (EPR). The results of the EPR were presented in a do.cument by the same name
dated 31 March 2005 (R4, tab 1759). 33 The "Executing Organizations" were identified:

                5. Executing Organization

                       Global Business Unit:        PI&T
                       Division:                    PI&T-FERM
                       Sector:                      FERM - Infrastructure
                       Office:                      Parsons Evergreene, Salt
                                                    Lake City Utah
                       Parsons Entity:              PARCOMM (Parsons
                                                    Evergreene

(Id. at 5) The pricing strategy was identified:

                7. Pricing and Execution Strategy
                       Pricing for this task order for review purposes will be
                       derived using a combination of current subcontractor
                       pricing of unit rates, detailed take off quantities, and
                       the recent historical pricing data as part of the 35%
                       design. The final pricing for bid submittal purposes
                       will consist of firm fixed pricing from subcontractors
                       based on a defined scope; with Parsons Terms and
                       Conditions, and prime contract flow down provisions
                       incorporated. PE will also collect one or more firm
                       fixed price bids for the entire work scope from one or
                       more local general contractors.

                       Since Parsons preformed the 35% design, this has
                       allowed more precise scope definition, limiting our
                       overall liability for scope gaps in the final project
                       pncmg.

(Id) (Emphasis added) Several times in the EPR, PE stated that it preformed/completed the
35% design (id. at 5-7). PE planned to "require that all subcontractors/vendors hold their .
pricing for 120 days" and require a subcontractor release "or we will require a price
adjustment to account for any inflation in cost" (id. at 79). PE planned to include the

33
     Neither party presented testimony about this document at the hearing. PE objected to
         its use by the AF, an objection we overruled in the preliminary matters section of
         this decision.
                                               32
 maj ority~of material costs in firm-fixed-price subcontracts and that "volatile materials such
 as concrete and steel" would be purchased within the 120 days and stored either on site or in
 bonded and insured warehouses (id. at 100). The EPR included a risk management section
 that among other risks, identified "Quality of subcontractor pricing at the 35% design stage,"
 and "price escalation of materials prior to buy-out" and "Completion of plans from 35% to
 100% - managing to scope and cost" ( id. at 177).

 PE's Proposal

         59. In April 2005, Mr. Tengler was PE's chief estimator (tr. 4/6). He computed
 PE's bid of $33,566,277 (tr. 4/30; R4, tab3732 at 343). Mr. Booth is also an estimator
 for PE (tr. 7/9). He first became involved in the TLF/VQ project in March 2005 (tr. 7/11).
 Mr. Booth prepared a "check estimate" on the TLFNQ project (tr. 7/12; R4, tab 506).
 The purpose was to conduct an independent estimate to check the "ball park" validity of
 Mr. Tengler's estimate and "flesh out any scope items" added since the prior estimate
 (tr. 7/13, 29). He was given only the Baker drawings, the RFP, specifications and
 drawings (tr. 7/14-15; R4, tab 506 at 1). The estimate was based on the assumption that
 the "site will be delivered clean, per the RFP" (R4, tab 506 at 1). He didn't do "takeoffs"
 from the drawings, but used "RS Means" values per square foot of the various systems in
 the building (tr. 7/25-27). The estimate for the VQ was $18,182,698 (R4, tab 506 at 19)
 and the TLF was $15,160,521 (id. at 33) for a total of$33,343,219.

           60. PE signed and submitted its "Price Proposals" on 27 April 2005 in the total ·
  amount of $33,566,277 (R4, tab 5). The offer had an acceptance period of 120 calendar
  days from the date of the signed offer34 (id. at 1). Before award the AF contacted PE and
  asked PE to confirm its bid. The AF did not suggest that the bid was too low compared to
  the-other bids. (Tr. 1/114-15) PE held an executive level meeting to discuss the AF's
. request. Mr. Radin recalled they discussed the three different estimates supporting the
  bid: (1) the original $33,566,277 estimate by Mr. Tengler used for the bid (tr. 1/117; R4,
  tab 506 at 3), (2) the $33,343,219 check estimate by Mr. Booth that used RS Means
  (tr. 1/l 17-19;R4, tab 506 at 6, 19, 33) and (3) the U.S. Cost estimate of$29,514,000
  (tr. 1/116; R4, tab 506 at 36, 51) .. As a result of this meeting PE decided it was a good bid
  and they would stand by it (id.).

 AF Price Competition Memorandum ·

       61. The Price Competition Memorandum (PCM) for RFP 8234, signed by
 Mr. Hillestad, Mr. Brackett and CO Macdecy, all from A.FCEE," lists the Construction
 Cost Limitation (CCL), 35 IGE, and bids from the three bidders, MWH, Caddell and PE:



 34
      One hundred and twenty (120) days from 27 April 2005 is 25 August 2005.
 35
      The CCL sets the maximum price authorized at the time.
                                              33
 TLF           CCL        IGE         MWH         Caddell     PE
 Base Bid      $15373,202 $12,936.476 $19,128,036 $17,456,748 $15,373,202
 Equip't         $192,046    $176,994    $204,302    $159,106    $159.755
 VQ
 Base Bid      $17,977,243 $16,160367 $28.229,644 $27.429,776 $17,977.243
 Equip't           $56,077     $69.239   $106,902    $137,434     $56.077
 TOTAL         $3J,598,568 $29,343,076 $47,668,884 $45,183,064 $33,566,277

(R4, tab 3743 at 1)

       62. Part of the Introductory Summary to _the PCM reads:

              A total of three (3) offers were timely received. All three
              exceeded the CCL. The MWH and Caddell Offers \.Vere too
              far out of range to allow further consideration. The Parson
              Offer was determined to be salvageable with discussions.
              Follmving a series of discussions it was determined that
              Parsons-Evergreene was willing to revise their original offer
              to an extent that would assure an acceptable proposed
              (Price/Cost) for this acquisition. Parson's representatives
              advised they had been able to utilize knowledge acquired
              during the Constructability Review to gain assurance that
              the project was doable at their final figure. Their proposed
              offer was affinned in writing by The Corporate President,
              Mr. Christopher Nielson. Additionally, they were confident
              that there ,vould be no problem in obtaining subcontractors
              during the work progression. Despite their organizational
              HQ location in Salt Lake City, Parsons has main_tained a
              strong presence on the Eastern Seaboard. These assurances
              are deemed adequate to substantiate the decision to award to
              Parsons-Evergreene, LLC.

(R4, tab 3743 at 3)

       63. The PCM Evaluation Summarv., read·.

              a. Reasonableness

                     The three proposals received were compared to each
              other and with the Independent Gover111i:1ent Estimate (IGE)
              and the Construction Cost Limitation (CCL). The proposals
              received from MWH Americas and Caddell Construction,
              Inc. were deemed irreparably high \vhen compared with the
                                           .34
               CCL, the IGE and the offer from Parsons. MWH and
               Caddell offers were rejected out. of hand. The Parsons offer
               was less than .07% higher than the CCL and approximately
               16% above the IGE. The IGE was a Year old at the time of
               comparison. Given rapidly fluctuating prices resulting from
               high oil prices and other market influences, the CCL was
               given heavier comparative weight. The Parsons offer was
               determined to be sufficiently within range to attempt a
               satisfactory resolution. Following a series of telephonic and
               electronic discussions, Parsons submitted an offer that
               allowed award \,Vithin the funds set forth in the CCL. A
               final decision \Vas made to proceed with the award to
               Parsons.

(:i4, tab 3743 at 6) ·

       64. The Determination of Adequate Price Competition, attached to the PCM,
reads in part:

               Considering all factors, the offered price selected (see
               attachment 2 to the PCM) is determined to be fair and
               reasonable based on adequate price competition ....

(R4, tab 3743 at 9) ·

Delivery Order No. 0013 for 100% Design and Construction

       65. Delivery Order No. 0013 (DO 13) was issued to PE on 13 July 2005 (R4, tab T
at 1). DO 13, CLIN 0003AA was for "DESIGN & CONSTRUCT TLF" at a fixed price of
$15,269,702.00 (id. at 2). DO 13, CLIN 0003AB was for "DESIGN & CONSTRUCT
VQ" at a fixed price of $17,859,043.00 (id.). The completion date for both the TLF and
VQ was 5 March 2007 (id. at 5) for a total period from award to finish of 600 days. PE
was the "Design-Build-Plus 03 (DBP03)" contractor for this project (id. at 20).

       66. DO 13 required construction of the TLF and VQ in accordance with the SOW
which was Attachment 1, entitled, "Temporary Lodging Facility (PTFL 04-5000) &
Visiting Quarters (PTFL 02-3004) McGuire AfB, NJ" dated 31 March 2005 (R4, tab 7 at
2). The SOW was the same one found in RFP 8234 (R4, tab 2B at 3, tab 7 at 17). The
SOW incorporated the 18 May 2004 concept design documents for the TLF and VQ on
two compact disks (R4, tab 7 at 25).




                                             35
Project Management Plan (PMP)

       67. By email dated 25 July 2005 to Mr. Binks, one of PE's Project Managers,
and a number of AF personnel, Mr. Morrison forwarded the AF's PMP, dated 17 May
2005 (R4, tab 528). The PMP defines the roles and responsibilities for the following
AF organizations: Headquarters Air Mobility Command (HQ AMC); Headquarters AF
Services Agency (HQ AFSVA); 305 1h CES, Civil Engineer Squadron, MAFB; 305 1h
SVS, Services Squadron, MAFB; and Title II Contractor Services Support (id.). The
PMP informed PE of the following:

              As minimum the Title II contractor, Base Civil Engineer and
              Services Representatives, HQ AMC Services, HQ AFSV A,
              CM, CA, and any other organization interested will
              participate in all final acceptance inspections The DB+
              contractor will schedule the final acceptance inspection
              through the Title II contractor with sufficient advance notice
              for maximum participation by interested parties.

(R4, tab 528 at 13)

27 July 2005 "Kick:-0.ff" Meeting & Initial Notice to Proceed {NTP)

         68. A "Pre-Construction and Pre.;. Work Conference" was held on 27 July 2005 R4,
 tab 3004 at 110). Even though there was no requirement for an NTP for design (R4, tab 2
 at 565; tr. 10/170), the AF issued an NTP on the "design completion phase" just prior to
 this meeting. It was signed by CO Macdecy on 25 July 2005 with an ·"effective date" of
· 13 July 2005 (tr. 7/229-30; R4, tab 3004 at 108). Mr. Binks signed acknowledging receipt
 on 26 July 2005 (R4, tab 27). Mr. Evans, PE's expert in scheduling issues, testified that
 the government initially "backdated" the NTP to 13 July 2005 but changing the date to
 27 July 2005 was discussed during the 26 July 2005 meeting (tr. 7/230-32; R4, tab 3004 at
  111). Notes of the meeting include the following:

                     NTP presented to Parsons Evergreene was dated
              13 July 2005, twelve (12) days prior to actual receipt. Issue
              date needs to reflect date of this meeting, 27 July 2005,
              which would then be the official start of the six hundred
              (600) days allotted in the FNA for.construction.

(R4, tab 3004 at 111) Mr. Hillestad attended the 27 July 2005 "kick-off' meeting
(tr. 10/128-29, 153-54). He disagreed with the above-quoted meeting notes, testifying that
he and Mr. Binks agreed that the NTP date would be 13 July 2005 (tr. 10/119-22, 130; R4,
tab 525 at 1:-2).



                                           36
         69. Mr. Bennett recalled that at the 27 July 2005 kick-off meeting he explained
 to th~ government representatives that design-build allowed PE the flexibility to make
 changes so long as the overall intent of the building was satisfied (tr. 5/24 ).

 PE's Initial Schedule

          70. PE's initial as-planed Critical Path Method (CPM) schedule for the VQ and TLF,
  dated 11 August 2005, was submitted to CO Macdecy on 12 August 2005 (R4, tab 1562,
. tab 538; tr. 16/135). The schedule includes a "Delay orNTP" from 12 May 2005 to 13 July
  2005 (R4, tab 1562 at 3). The schedule indicates PE would buy out all of its subcontr~cts
  for the VQ and TLF between 11 August 2005 and 3 November 2005 (id. at 3-4, 20-21 ).
  Although there is little evidence in the record explaining this schedule, it shows the critical
  path (red bars) running through the foundation work for Wing A of the VQ (id. at 6).

 August- September 2005 Communications & Meetings

          71. By letter dated 23 August 2005 entitled "Memo of Understanding:
  Design/Build Procedures" from Mr. Richardson, Parsons Regional Construction Manager 36
  (tr. 2/104), to CO Macdecy, Mr. Richardson expressed PE's "understanding of recent
· discussions concerning construction means and methods to be used for the design and
  construction of the Temporary Lodging Facility and Visitors Quarters at McGuire AFB"
  (R4, tab 4609). The letter read in pertinent part:·            ·

                In the particular case of the McGuire AFB V.Q and TLF.
                Parsons Evergreene was the DBP03 contractor during the
                CD phase and thus is very much aware that the designs
                produced during the CD phase were "conceptual" in nature
                by the government. It was repeatedly discussed, that beyond
                specific design elements, the DBP03 contractor of record
                had the ability to modify design elements in order to keep
                the project within budget and schedule, as long as the
                overall intent of the end user was not compromised and
                the design meets all applicable building codes and
                government design criteria.



                 I. Overall concept and expression of the building will
                    follow the 35% design. (Materials, and design details


 36
      The PDF version. of the letter is not signed, but there was no objection from the
         government when it was used at the hearing and we assume it was signed, sent
         and received (tr. 5/25-27).
                                             37
                 will be further developed and designed through the 64%
                 and 95% design.)
              2. Floor plan layout and interior design have been
                 established as final and are to be per conceptual
                 drawings.



              5. Structural systems have not been designed or stamped
                 and therefore will be advanced, changed or otherwise
                 "designed" to meet constructability reviews, code
                 reviews, AF design guideline reviews and to work with
                 the required conceptual architectural, mechanical, and
                 electrical items as set forth in the RFP. It will be the
                 responsibility of Parsons Evergreene to determine the
                 structural system that meets the codes and AG design
                 guideline.

(R4, tab 4609 at 1, 2)

       72. A contract coordination meeting was held on 1 September 2005 between· .
Mr. Romano, PE's project manager and Messrs. Morrison and Hillestad from AFCEE
contracting (R4, tab 3016 at 1). PE's notes ofthe meeting included:

              The group discussed the idea of "conceptual" drawings and
              design build. Everyone agreed that Parsons has the
              opportunity to improve on the conceptual drawings in the
              less developed portions of the drawings such as electrical,
              mechanical, structural, and civil. Architectural drawings are
              much more developed and the expectation is that the floor
              plans and room layouts are fixed and will not change.
              Parsons agrees with this understanding.·

(Id. at 1-2) Mr: Bennett, PE's Architect, testified that the structural drawings in the 35%
drawi~gs was basic, but did not account for lateral design, seismic design, wind loads, and
full sheer and connection details (tr. 5/29-30}. He testified that progressive collapse was
"not even part of that original discussion" (tr. 5/30). The notes of the meeting indicate
that after the meeting Mr. Romano asked if the area where houses and a swimming pool '
had been demolished had been backfilled with engineered fill. He asked for test reports
documenting the fill and if an environmental site assessment had been completed for these
areas. (Id. ar2)




                                           38
 Structural Brick Proposal

         73. On 5 October 2005, Mr. Bennett sent a letter to Mr. Romano, PE, suggesting a
 change in the structural design of the VQ _(R4, tab 3885 at 7-8). The letter listed six design
 "issues" and "solutions" including use of structural brick walls (id.). Mr. Bennett testified
 that this design change was intended, in part, to address progressive collapse (tr. 5/31 ).
 On 10 October 2005, Mr. Romano, submitted to the AF a "Notice oflntent to Modify
 Structural Design" for the VQ (R4, tab 3 885 at 9-10). In the letter PE explains that the
 structural design embodied in the 35% design was "incapable of being utilized as shown
 AND remain able to maintain the integrity of the desired architectural elements" (id. at 9).
 Mr. Lengyel worked on the change and testified that they (PE) recommended changing
 from the double wall concept to a single wall made of structural brick with an "open web
 metal joist and metal B-deck with concrete topping" (tr. 4/188). Mr. Lengyel testified
 that the 35% design did not address "progressive collapse" and that, once they (PE) put
 that criteria in the design, the VQ "became inordinately heavy and difficult to detail"
 (tr. 4/190-91 ).

         74. On 16 November 2005, Ms. Kite 1 PE contracts manager, sent CO Macdecy a
 letter entitled, "Request to Proceed with Structural Brick system" (R4, tab 557). The
 letter included as Attachment 1 a copy of another 16 November 2005 letter to
 CO Macdecy answering various questions and Appendices A through F presenting
 information about structural brick. Attachment 1 included:

                The color of brick has not been finalized at this time. The
                manufacturer we are negotiating with has been finding
                various brick colors for us to analyze. If necessary, we will
                have a custom color brick fabrkated to match the base
                standard. Parsons understands that the brick color must
                meet the base standard and will submit the brick color
                during the submittal process .

. (Id. at 3) Ms. Kite also stated PE could match the brick size required by the Base
  Architectural Compatibility Guide (id.). Ms. Kite stated that the Appendices included
  sufficient information to answer CO Macdecy's questions in his 21 October 2005 37 letter
  and she asked for permission to proceed with the structural brick solution (id. at 1).

       75. On 8 December 2005 the parties held a coordination meeting (R4, tab 239).
Minutes of the meeting document that the parties discussed PE's desire to change the
design of the VQ to structural brick. The AF expressed its desire to stick to the 35%
design and that only "undeveloped areas" of the 35% design were subject to change by
PE. The AF directed PE "to discontinue structural brick design," but PE expressed
concern that the 35% design could not be built without significant modifications to

37
     This letter is not in the Rule 4 index.
                                               39
address progressive collapse. The AF agreed to consider "additional information and
supporting documentation outHning" PE's concerns. (Id. at 2-3)

       76. Ms. Brown became the CO for the VQ/TLF contract in December 2005
when Mr. Macdecy left (tr. 11/255; R4, tab 7A at 2). In a 14 December 2005 email to
CO Brown, Mr. Williams stated that the RFP/35% design did not have shear walls that
lined up in the Admin/Housekeeping wing of the VQ that will "require additional
structural members to be installed that will impact the design in an adverse way" (R4,
tab 4379 at 2). Mr. Williams wrote: .

             Can the RFP design be built? Yes. However, if the
             government takes the position that the DB contractor cannot
             deviate from the RFP at all then we will have clearance
             problems between the ceiling and structure. That would
             leave only two option as I can see it at this time: 1) increase
             the floor to floor height or 2) lower the ceiling height. HQ
             AFSVA does not support the second option.

             The requested structural change [structural brick] appears to
             resolve these issues of clearance and improves AT/FP.

(R4, tab 4379 at 2) Mr. Williams supported the change to structural brick suggested by
PE stating, ''Please ensure Parsons makes the proper request for the structural system
only and modify the contract as required (id. at 3; tr. 15/47).

      77. By letter dated 15 December 2005 to PE, Subject "Sixty-five Percent Design
Submittal Requirements, Contract No. FA8903-04-D-8703, Task Order 0013,"
CO Brown expressed the AF's concern over PE's proposed change to structural brick:

             1. The Government is serio.usly concerned about the
             direction that Parsons Evergreene has chosen to take with
             respect to the design of the subject task order. That task
             order identifies the controlling contractual documents,
             including the statement of work, specifications and
             drawings. These documents provide the legal framework
             for the basic design as represented by the 35% design for
             these projects.

              2. You have a contractual obligation to comply with all
              contractual documents, including the designs that are
              indicated in the specifications and drawings. If you find
              during the continuation of your design that the initial design
            · work includes errors or other deficiencies, it is your
              affirmative obligation under the task order to identify the

                                           40
              error or deficiency, specifically referencing the applicable
              portion of the task order," include specific data substantiating
              the existence of the error or deficiency, and identify any
              proposed solution to the design error or deficiency. That
              information will be used to evaluate the proposed solution
              and either incorporate your design changes into the task
              order or advise that the solution is not acceptable to the
              Government. .

              3. What has occurred, essentially, in the current situation
              concerning the structural brick is that you have identified
              that there are structural problems and you have proposed a
              significant redirection on several structural components.
              This contention is without sufficient rationale to substantiate
              that there is indeed a problem that cannot be resolved
              through design development of the task order documents.
              The "Structural Brick Proposal" is considered an incomplete
              and unacceptable method to identify a design solution.
              Ideally, we seek a solution that most closely reflects the
              structural character that is on contract.

(R4, tab 32 at 1) CO Brown directed PE to provide a "comprehensive and concise list
of errors, deficiencies, or other specific issues that you have identified with the original
design" (id.). Mr. Lengyel testified that such information was included in the
information submitted to the AF in the October 2005 letter (tr. 4/202). CO Brown also
directed PE to submit recommendations that "more closely resembles the structural
system that is in the task order" (R4, tab 32 at 1-2).

        78. PE responded to CO Brown's 15 December 2005 memorandum on
22 December 2005 (R4, tab 36). PE began the letter with, "Parsons Evergreene (PE) is
also very concerned about this project, but specifically with our inability to make
progress on our structural design using what we consider necessary and appropriate
alternative systems" (id.). PE elaborated on three "primary issues in the current concept
design.that need to be addressed" (id.). The issues were: (1) Inadequate Shear Walls and
Beams on the second and third floors in the business center wing and interior lobby that
do not line up with the main floor that will require larger beams that will interfere with .
ceiling heights and mechanical runs; (2) Inadequate Mechanical Plenum Space caused by
the concrete floor plank system that does not allow space for ducts and lighting fixtures;
and (3)Progressive Collapse and Structural Redundancy is not accounted for in the 3~%
design (id. at 1-2). Mr. Lengyel testified that it was impossible to build the 35% design
the way it was depicted with the double wall design and meet the nine-foot ceiling
clearances. and other architectural details in the design (tr. 4/205). Mr. Bennett testified
that the 35% design was deficient because it did not account for progressive collapse
(tr. 5/36). In the 22 December 2005 letter, PE went on to explain how its structural brick

                                             41
design would solve these problems. It also quoted the pre-bid question. and answer that
questioned the adequacy of the 35% design to satisfy the progressive collapse·
requirement, including "[a]re we allowed to substitute assemblies and structural systems
in order to be compliant with the progressive collapses requirement provided the
performance requirements and appearance of the building are satisfied?" (id. at 4). The
question also noted that providing "a facility compliant with the Progressive Collapse
criteria would require substantial work at a considerable additional compensation"
(id.). PE included the AF's answer:

              Yes, the drawings are concept only. You have the
              responsibility to generate the construction details and
              drawings. Tim Morrison, AFCEE/HDM

(R4, tab 36 at 4) .

       79. The AF commissioned a review of structural systems for the VQ by
Jaster Quintanilla & Associates (JQA) (R4, tab "588 at 1). The resulting report, dated
7 January 2006, included the following:

              The configuration of the load-bearing masonry walls and
              structural steel beams at this level should be similar to that
              indicated on Sheet S-105 (Third Floor Framing Area A).
              Because the interior walls in the north-south direction on the
              Second Floor do not align with the walls on the First Floor,
              it is likely that a structural steel frame will be required at
              these locations on the First Floor to adequately resist the
              lateral forces. This condition can be readily addressed
              through proper structural design and detailing.



              At this time, it does not appear that the structural system
              indicated in the 35% Level of Design Documents has been
              designed and detailed to meet the requirements to resist
              progressive collapse. However, there is nothing that
              suggests that the primary structural system selected
              (load-bearing concrete masonry with hollow core concrete
              planks) cannot be adequately designed, reinforced, and
              detailed to meet those requirements.                ·

(R4, tab 588 at 1-2) Mr. Radin testified that this report disclosed design flaws in the
35% design, and the structural brick design suggested by PE was an attempt to fix this
problem (tr. 1/219-20). Mr. Lengyel testified that JQA agreed with PE that the 3 5%
design would require structural changes (tr. 4/219).

                                           42
        80. The government responded to PE's 22 Detember 2005 letter on 12 January
2006 (R4, tab 3913 at 6). The memorandum criticizes PE for continuing to advocate for
its structural brick design stating "On 21 October 2005, the government formally
rejected Parsons alternative design proposal (specifically the structural brick) and
directed Parsons on proper process for submission of requests for contract changes"
(id.). The government responded to the three technical issues raised by PE stating that:
( 1) Inadequate Shear WaHs and Beams can be resolved with structural design of any ·
needed beams and changes to floor plans; (2) Inadequate Mechanical Plenum Space can
be resolved by "slightly lowering the ceiling height, reshaping the duct work, or as a last
resort, slightly raising the building height"; (3) Progressive Collapse and Structural
Redundancy can be resolved by adding additional reinforcement to the 35% design to
meet the minimum progressive collapse criteria (id at 7). The government also
revealed that it had employed JQA to analyze the 35% design. The AF informed PE
that JQA reported that the progressive collapse requirement could be met with the 35%
design "with the proper detailing and design completion" (id.). With regard to the pre-
bid question and answer the government stated that "[n]otwithstanding Government
responses to RFI questions during the RFP process" PE was required to comply with the
specifications and drawings, but should notify the government of design deficiencies for
government consideration (id. at 8).

        81. On 17 January 2006 PE submitted to the AF a PDF "Binder" including a
cover summary letter entitled "Request to Proceed with Structural Brick system,"
supported by 148 pages of backup (tr. 4/197-98, 5/32-33; R4, tab 592). This submission
provided the information requested in CO Brown's 15 December 2005 letter.
Mr. Lengyel worked on putting the binder together and he testified that it addressed the
AF's concerns over brick size, and acoustical and fire ratings (tr. 4/198). Mr. Lengyel
developed drawings of the wall sections to show how the new wall design would work
(tr. 41199). The binder also included a report from a ·structural engineer indicating that
the structural brick wall was stronger than the CMU wall (tr. 4/200; R4, tab 592 at 120,
200-01). Mr. Lengyel testified that the manufacturer of the structural brick, Atlas Brick,
could provide different size and color brick so size and color would not be a valid
reason for rejecting the structural brick (tr. 4/192-94 ). He testified that the structural
brick met MAFB architectural standards for brick (tr. 4/195-96; R4, tab 833 at 18).
Mr. Rola, AF senior civil engineer, agreed that PE offered to provide structural brick
that met the base architectural standard or the brick specified in Baker's 35% design
(tr. 15/121-22). In PE's structural brick proposal it used four by four by eight inch
closure face brick that was the base standard (tr. 5/89-90; R4, tab 833 at 8). PE
proposed two different wall assemblies, each performed better than the CMU with
veneer brickin the RFP (tr. 4/196-97).

       82. CO Brown agreed that one problem with the 35% design was that "the shear
walls in the different floors didn't line up and they had to be moved in order to carry the
loads down and meet the progressive collapse requirements" {tr. 12/109-10). She agreed

                                            43
that the structural brick design would solve the progressive collapse problem with the
35% design (tr. 12/110).

       83. CO Brown testified that PE told her that the Baker design "would be near to
impossible to build" due to many technical problems (tr. 12/14). She asked her
technical support people about PE's concerns. She was told there were some problems
with the Baker design but they could be corrected "by somebody that knew what they
were doing." (Tr. 12/15)

       84. CO Brown convened a "summit meeting" in San Antonio, Texas, on
25 January 2006. CO Brown started the meeting with a discussion of the design build
process:

              The premise comes down to the contractual document; what
              ever documents we start the process with is what drives the
              design. If there is something in the basic contract that is
              incorrect the contractor has the responsibility to propose
              solutions. However, in order to change the contract there
              must be consideration with respect to cost either positive or
              negative.

(R4, tab 38 at 1) Mr. Bennett attended and the meeting minutes document that
Mr. Bennett said the following:

              f) Keith Bennett responded to above comments by stating
                 that early in the bid process concerns with the structure
                 were voiced and requests were made for liberty to
                 substitute structural systems within the same
                 architecture. Keith Bennett stated that it was never ·
                 portrayed that the exact structure or the exactness of the
                 drawings was what they would be held to. Therefore
                 they did not feel it was necessary to point out specific
                 deficiencies with the 35% because they felt it clearly
                 stated they could look at other options. I know
                 contractually that may be messy but that was what was
                 portrayed at the 35% review pre going out on the street.

(Id. at 2) Mr. Bennett stated that PE was "okay with being told the 'Structural Brick' is ·
off the table we can move on, but it needs to be clear that there will be cost impacts that
will need to be looked at regarding solutions to deficiencies" (tr. 4/207, 209; R4, tab 3 8 at
2). He explained that the structural brick design would solve the problems with the 35%
design and not "have a cost "implication" (id. at 2). Mr. Bennett affirmed what he said in
his testimony at the hearing (tr. 5/46, 48-49).' Mr. Romano stated that "Parsons never said
they couldn't build this [35%] design," however, the structural brick approach was an

                                             44
 attempt to keep the project within budget (R4, tab 38,at 4). Mr. Aldave, PE's structural
 design engineer, explained that the structural btick design was necessitated by the
 requirement to design to avoid progressive collapse (id. at 2-3). He stated that the Baker
 35% design did not satisfy the requirement to avoid progressive collapse (id. at 4 ). There
 was discussion of pre-bid questions, "Brian Lamont respond that if you go back to the
 pre-bid Q and A notes, one of the comments was that a design to provide a progressive
 collapse compliant facility will require substantial work at a considerable additional cost"
 (id. at 5). AF representatives from the Air Mobility Command (AMC) and MAFB stated
 that "architectural compatibility" (matching surrounding buildings brick) was the "main
 issue" that caused them to stick with the concrete masonry unit (CMU) and brick veneer
 of the 35% design (id. at 5). Mr. Romano stated that they could match the brick in the
 surrounding buildings with the structural brick (id.). CO Brown directed PE to proceed
 with the 35% design (id. at 7; tr. 15/52). The structural brick design was finally rejected
 by Ms. Brown during the 25 January 2006 meeting (tr. 2/231, 12/15). Mr. Lengyel
 recalled that at the end of the meeting PE understood that the structural brick design was a
 dead issue and they were to build to the 3 5% design (tr. 4/217-18). PE had developed the
 65% design using structural brick and when the decision to use the Baker 35% design was
 issued, PE had to "go backwards and redo the 65 percent design" (tr. 2/193).

         85. Mr. Basham testified that PE's structural brick design would solve the lack
 of progressive collapse protection in the 35% design. Since the AF would not accept
 the structural brick, PE had to change the double wall design to account for progressive
 collapse. PE realigned some structural systems to line up the columns on the second
 floor with those on the third floor and the ceilings had to be lowered. (Tr. 2/92-94)
 Hollow core planks are not industry standard when progressive collapse is involved
 (tr. 5/87). PE used the hollow core planks in the VQ but as a result had to add
 substantial reinforcement in the 35% design (tr. 5/87-88).

          86. Mr. Temchin testified that after the January meeting, PE had to redesign the
  double-wall 35% design (tr. 7/191-92). PE designed and built a steel frame inside the
  VQ to prevent progressive collapse because the brick veneer facing would not carry the
  loads (tr. 2/246). Staying_with the 35% double wall design required "an entire interior
. redesign" involving realignment of the vertical columns, shear columns and creation of.
  a new joint system for the hollow core planks (tr. 7/191-92). PE had to add "a moment
  frame and structural steel to the VQ" because they were not able to provide protection
  from progressive collapse using the original wall design (tr. 2/142). Mr. Tengler
  estimated that use of the structural brick would have saved $1,906,401 38 in construction ·
  costs (tr. 4/98; R4, tab 3154 at 2).

      87. By letter dated 6 February 2006 to CO Brown, Mr. Dukes, PE's senior
procurement manager (tr. 2/106), acknowledged CO Brown's direction to discontinue
development of the structural brick alternative. Mr. Dukes informed CO Brown that PE

38
     The estimate is dated 6 October 2014 (R4, tab 3154).
                                             45
considered this direction to be a constructive change and that as a result PE would incur
"additional design expense and the loss of performance time." (R4, tab 3926 at 2;
tr. 4/222-23)

Submission of TLF & VQ 65% Drawings and Specifications

        88. PE submitted for approval its 65% drawings and specifications for the TLF
and VQ on 27 February 2006 (R4, tabs 8, 9). The drawings included 100% of the civil
and structural and at least 50% of the architectural, mechanical, and electrical design
(tr. 12/125; R4, tab 2 at 294, tab 3923).

27 March 2006 Limited NTP

     · 89. On 27 March 2006, CO Brown issued a limited notice to proceed (LNTP)
for sedimentation and erosion control, stripping top soil, and cutting and filling the site
to proposed rough grades (R4, tab 623 at 3; tr. 8/24-25) .

. Approved ofSite Civil/Structural 100%/or Construction Drawings/or TLF & VQ

        90. The Site Civil/Structural 100% for Construction Drawings for the TLF are dated
17 April 2006 (R4, tab 1750). These drawings include the fin~l design of the TLF
foundations (id., drawings S-101.a, b, S-501). The Site Civil/Structural 100% Drawings for
Construction for the VQ are dated 27 April 2006 (R4, tab 1751 ). These drawings include the
final design of the VQ foundations (id., drawings S-100, -lOOA, -101, -102, -501). 39

Modification No. 02

        91. By letter dated 25 April 2006 to CO Brown, Mr. Dukes offered two
alternatives to resolving "the remaining contractual aspects of the impasse that has been
resolved in regards to the structural brick" (R4, tab 4504 at 2). PE was willing to accept
either a 120-day ext~nsion plus $100,000 or a six-month extension with no money (id.).
The letter includes, "To add greater detail to the understanding of this agreement,
Parsons is estimating the following impacts that have been absorbed to date and will
have to be absorbed with the execution of a contract modification under.the proposed
resolution modification" (id. at 2-3). PE listed "$100,000.00 in actual redesign
expenses," $500,000.00 in increased construction costs to follow the original 35%
design, and $700,000.00 "[i]n consideration for signing a release of claims for the
direction given on the design effort to date" (id. at 3). 40

39
     We infer that these are the approved versions of the 100% civil drawings submitted
         on 27 February 2006 (finding 88).
40
     No testimony was presented by either party at the hearing to explain exactly the
         meaning of this language in the letter.

                                             46
       92. Modification No. 02 (Mod. 2) to DO 13, dated 6 June 2006, extended the
period of performance by 126 days from 5 March 2007 to 9 July 2007. This accounted
for a 126-day delay associated with the structural brick discussion that occurred from
22 September 2005 to 25 January 2006. 41 Mod. 2 included the following release:

                2. Release of Claims: In consideration of the modification
                agreed to herein as complete equitable adjustment for any
                delays or costs rising from varying design approaches,
                                in
                including delays reviewing approaches, the contractor
                hereby releases the government from any liability under this
                contract for further equitable adjustments attributable to
                such facts or circumstances giving rise to this contract
                modification.

(R4, tab 7B at 2) CO Brown believes. the release includes what PE claims in this appeal
for the increase in cost of constructing the VQ to the Baker 35% design (tr. 12/18).
Mr. Temchin believes the release covered the four months of design costs associated
with its attempt to convince the AF to use the structural brick design, not the increases
in construction costs incurred later to incorporate resistance to progressive collapse in
the Baker double wall design (tr. 2/196).

        93. CO Brown signed a Memo for Record, <;lated 12 June 2006, explaining
Mod. 2 (R4, tab 1514 at 8-9). After reciting some background, CO Brown concluded,
"The period of performance will be changed from 05 March 2007 to 09 July 2007 with
no increase to the total amount. The contractor agreed to the extension and agreed to
sign a release of claims for the additional time consideration." (Id. at 9)

LNTP - Underground Utilities

         94. The AF issued an LNTP on 6 June 2006 for:

               [W]ork affecting underground utilities and some related
               items including but not limit[ ed] to the following: site storm
               and sanitary sewerage, piping and structures, taps, and tie-
               ins, site domestic water piping, taps, tie-ins including
               metering and vaults, site telecommunication and data to
               include any duct banks, below grade HTHW, metering and
               vaults, taps, and tie-ins, high and low voltage electrical
               underground.


41
     Mr. Evans, PE's scheduling expert, started his 126-day delay on l3 July 2005 (R4,
         tab 3290 at 6, item 1).
                                             47
 (R4, tab 3948 at 2) Mr. Temchin testified that this LNTP was equivalent to the "l June
 2005 NTP civil site work package" (tr. 2/141). The civil site work is referred to as
 "horizontal" work (tr. 1/129). The LNTP did not allow PE to start foundation work
 (tr. 8/32-33).

 PE Stop-Work Order/Concerns over Environmental Contamination

        95. A coordination meeting between the government and PE was held on
 27 June 2006. During the meeting, PE requested a "Certificate of Clean Site" for areas
 where the AF had contracted for the demolition of two swimming pools and other
 buildings. (Tr. 6/52, 54; R4, tab 56 at 4) The meeting notes state that the requested
 documents did not exist (id.).

         96. On 5 July 2006 PE's subcontractors Giberson Plumbing & Excavating, Inc.
· (Giberson) and S&C Construction, LLC (S&C) were setting up equipment to start work
  on footings (ex. A-3 at 130). 42 On 7 July 2006 PE sent S&C a letter instructing it to
  stop work on the TLF and VQ footings "at the point in time where you are starting to
  pour concrete for the footings for these buildings" because of "questions about the
  condition of the subsurface" (R4, tab 58; ex. A-3 at 134). The daily log for 7 July 2006
  indicates that subcontractor S&C was working on footings at the VQ site and had to
  stop work because it encountered "issues revolving around the soils and testing from
  prior demo work" (R4, tab 3744 at 63-64).

         97. By letter dated 14 July 2006 to CO Brown, Mr. Dukes informed the AF the.following:

               Since the Air Force cannot provide any documentation as
               to either the condition of the site prior to demolition, the
               actual scope of demolition carried out, or the adherence of
               the demolition contractor to the demolition statement of
               work, we have to project based on what we understand
               was done that the potential for asbestos pollution, mercury
               contamination, and other forms of improper fill materials
               (such as fluorescent light ballasts) may exist in the site.

(R4, tab 62 at 1) Mr. Temchin testified that at this time PE was very concerned with the
condition of the construction site (tr. 3/32).




42
     Also on 5 July 2006, PE sent a letter to CO Brown complaining about the lack of an
        unlimited NTP (R4, tab 3004 at 140). However, this letter doesn't square with
        PE's subcontractor commencing foundation excavation on 5 July 2006.
                                            48
      Unlimited Notice to Proceed (NTP)

            98. By letter dated 5 July 2006 to CO Brown, Mr. Dukes complained about the
 · government's use of "limited" notices to proceed and that PE had not yet been given a NTP
   for the foundations. Mr. Dukes estimated thatthis practice had delayed construction
   "approximately 60 days" and he requested an unlimited NTP be issued. (R4, tab 3004
   at 140-41; tr. 8/33-34) The AF issued an unlimited NTP on 10 July 2006 (R4, tab 3973
   at 2). 43 PE started working on the complete project after this NTP (tr. 2/150).

      PE's Concerns over Environmental Contaminatzon Resolved/JOO% Drawings

          99. On 21 July 2006 PE sent S&C a letter lifting the stop-work order for
    excavation at the TLF site (R4, tab 1558 at 43). The stop-work order for the VQ
  · remained in effect. PE completed and received approval of the "100% for construction"
    drawings for the TLF and VQ dated 24 July 2006. (R4, tabs 1754-55)

               100. By early August 2006 PE had completed its review of various documents
      provided by t~e AF concerning the demolition of houses and pools in the VQ areas. By
      letter dated 4 August 2006, PE notified CO Brown that it had cpncluded that the VQ site
      was environmentally "clean" and ready for construction (R4, tab 65 at 4-5). PE decided
      to "immediately proceed with the geotechnical investigation of the in-situ conditions of
      the backfill within these demolition sites" (id. at 1, 5). A total of 28 days of delay
      occurred between 7 July 2006 when PE stopped work and 4 August 2006 when PE
      lifted its stop-work order at the VQ. 44

      First Cure Notice

            101. On 9 August 2006 the government issued the first cure notice to PE (R4,
    tab 3982 at 2; tr. 1/132). In this cure notice the AF cited PE's failure to develop a
    project schedule, lack of cut and fill calculations, lack of sufficient labor, lack of
    responsiveness relating to TLF subsurface .conditions, design deficiencies relating to
    parking lot, failure to give notice of steel delays, and failure to provide pricing for the
    changes to be incorporated into the design, i.e., the "shopping list" (R4, tab 3982 at 2).
    The "shopping list'; was a list of out-of-scope items that the government wanted priced
    so it could decide whether to purchase them or not (tr. 5/219-20, 12120-21). The
    shopping list was·supposed to consist of "credits and debits" to be developed by PE so
    that the cost of the contract would not increase (tr. 13/50, 14/234-35). The two major
· . items on the list were parking lot lighting and landscaping (tr. 5/220).


      43
           The letter was erroneously identified as a limited NTP, but PE understood it to be an
               unlimited NTP (tr. 8/35).                    .
      44
  ·        Mr. Evans seems to combine the contaminated fill issue with the unsuitable fill issue in his
               Delay Review Period 3 (R4, tab 3004 at 25-26). We consider them separately.
                                                   49
       102. PE submitted its detailed response to the 9 August 2006 cure notice on
24 August 2006 (tr. 2/247; R4, tab 1499 at 13). By letter dated 10 October 2006 to
CO Brown, Mt. Dukes noted that the AF had not yet responded to PE's cure notice·
recovery plan and advised that not having a response "has the potential of causing an
adverse impact on the progress of the project" (R4, tab 4565 at 1).

Unsuitable Fill

        103. PE hired PSI to do a test pit exploration of the TLFNQ footprint areas. PSI
excavated ten test pits on 16 and 17 August 2006 (R4, tab 796 at 2). Test pits 1, 2, and .3
were at the VQ where demolition had .occurred (tr. 6/238; R4,.tab 796 at 6). PSI reported its
results to PE by letter dated 27 September 2006 (R4, tab 796 at 1). The log for test pits 1, 2,
and 3 indicate that construction debris was found in pits 1 and 2 and "trace" debris in pit 3
(tr. 6/239-40; R4, tab 796 at 8-10). The "construction-type debris" found is shown in a
picture date stamped "08/l 7/2006" (tr. 3/9; R4, tab 4675 at 4).

         104. By email dated 16 August 2006 to CO Brown, PE provided notice of a
differing site condition _after finding "wood, concrete rubble, metal, wire, charred debris
and other construction debris" that indicated that the previous demolition contractor did
not back fill with clean fill (R4, tab 68). The topic of the construction debris was
discussed during a meeting on 22 August 2006. PE was to remove the unsuitable
material and CO Brown stated MAFB was responsible for paying for the work. (R4,
tab 3058 at 3) Also on 22 August 2006, PE emailed S&C a stop-work order for
foundation work at the VQ due to concerns over subsurface conditions45 (R4, tab 69).
This order did not affect the work at the TLF. Mr. Shockley testified that the unsuitable
fill issue applied to the VQ only (tr. 6/117).

        105. In a 14 September 2006 internal email, CO Brown acknowledged
"probably unforeseen site conditions that can cost the government to remediate some of
the soil" but that she did not have funding to enable her to direct PE to do the work (R4,
tab 4403 at 1). By 2 November 2006 CO Brown had funding and issued a NTP for
disposal of the unsuitable material and backfilling, but she imposed a not-to-exceed
(NTE) amount of$70,000 (tr. 12/151, 221-22, 277; R4, tab 4447). A total of72 days of




45
     Mr. Evans seems to misconstrue the "contaminated soil" delay and the "unsuitable fill"
         delay. He writes, "On August 21, 2006, Parsons issued a Stop Work Order for the
         VQ and marks the end of the delay for unsuitable fill and starts the new delay for
         the organic layer" (R4, tab 3004 at 28). -As we· read the record, 4 August 2006
         marks the end of the contaminated soil delay (R4, tab 65 at 4-5) and 21 August
         2006 marks the beginning of the unsuitable fill delay. ·

                                            50
delay occurred between 22 August 2006 when PE stopped work at the VQ and 6 August
2006 when CO Brown issued the NTP to remove the unsuitable fill. 46

      106. On 15 November 2006 the 27 September 2006 PSI report was emailed to
CO Brown (R4, tab 846 at 47). On 16 November 2006 the PSI report was forwarded to
Mr. Williams, who wrote in a 29 November 2006 email to CO Brown the following:

                I am also disappointed it took so long for this report to reach
                us. However, ifl interpret the report correctly, I don't
                understand how the contractor that demolished the existing
                facilities was allowed to leave so much large construction
                debris on site and cover it with a shallow layer of dirt. Six
                of the ten tests contained construction· debris and one of
                those had the "green" soil. Two additional test sites
                contained the "green" soil. Only two of the tests seem to be
                Ok.
                Yes, this report is disturbing

(R4, tab 3999 at 1-2)

Organic Layer/"Transite" Asbestos Pipe

          107. By email dated 23 August 2006 to CO Brown, PE stated that on 22 August
  20·06 PSI found "organic material" in two of the test pits they had dug that day at the VQ
. site (R4, tab 3988). PE also stated, "Based on this discovery, we will not be placing
  concrete or excavating on the VQ side this week" (id.). PE had PSI take small diameter
 borings to map out the organic layer under VQ wing A (tr. 3/18; R4, tab 4675 at 13). PE
  also had PSI do some large diameter borings (tr. 3/19-20). PSI identified the location of
 the organic layer overlaid on the VQ footprint with the black "crosshatched" area on slide
  13 in a 18 December 2014 PowerPoint presentation (tr. 3/20-21; R4, tab 4675 at 13). Slide
  15 shows a picture of what the material in the organic layer looks like (tr. 3/22; R4,
 tab 4675 at 15). Slide 16 shows a tree trunk and organic layer material encountered during
 excavation (tr. 3/23; R4, tab 4675 at 16). The material PE uncovered could not be
  characterized as "trace" organic material (tr. 3/24-25)}7

         108. By letter dated 19 October 2006 to Mr. Dukes, PSI reported the results of
its settlement investigation at the VQ due to "organic laden stratum," i.e., organic layer.
P~I recommended that the organic layer be removed in the northwest comer of VQ

46
     We need not determine how long it took to remove and replace the unsuitable fill
        because this delay was concurrent with the organic layer/asbestos pipe delay
        discussed bel?w. For our purposes it is the 22 August 2006 stop-work date that
        is important.
47
     The original RFP 8234 boring logs identified "trace" organic material (R4, tab 2 at 825).
                                              51
wing A. (Tr. 3/25-26, 125-26; R4, tab 74) The PSI report was provided to the AF, but
the AF did not respond (tr. 3/26-28, 127).

          109. Mr. Temchin testified that the organic layer material is "made up of grasses
  and other materials that will decompose over time and create voids or cavities in the
  substrata under the building if it were left under the building" (tr. 3/18-19). The organic
  layer was at a depth of about twelve feet and the building's footing was seven feet, so the
  organic layer was five feet below the footing and that was "significant to our structural
· engineers" (tr. 3/126). PE determined that the organic layer needed to be removed because
  of differential settlement to insure long-term stability of the foundation (tr. 3/50).

       110. By email dated 3 November 2006 to CO Brown, Mr. Thomas, PE's vice
president and project manager, notified CO Brown that, while excavating to remove the
organic layer, PE encountered another differing site condition in the form of "old pipe with
asbestos insulation" 48 and "immediately stopped work" and notified Mr. Rola (tr. 2/103,
3/131-32; R4, tab 81 at 1). The email was followed up by a 7 November 2006 letter to
CO Brown notifying the AF of the differing site condition (R4, tab 841). Asbestos removal
was not within the scope of PE's Gontract(tr. 7/43-44, 5/235-36; R4, tab 838).

        111. Meanwhile, Mr. Rola told PE that the organic layer did not need to be removed
(tr. 3/127, 6/245-46). Mr. Temchin testified that Mr. Rola's position was "totally ridiculous"
(tr. 6/246). In her 9 November 2006 email to Mr. Rola and others, CO Brown expressed her
opinion that PE was entitled to rely on PSI's recommendation to remove the layer:

                If they [PE] trusted us and built on the site and the building
                had structural cracks in the foundation later because of

48
     Mr. Temchin testified that the asbestos insulated pipe was "transite" pipe that is a clay
         pipe with asbestos in it. It was also identified as "transite" in a 22 February 2007
         meeting (R4, tab 3067 at 3). There is some confusion over whether the pipe was
         shown on drawings given to PE. The AF provided PE with drawings of active
         utilities. However, the AF had drawings that showed abandoned utilities that the AF
         did not provide to PE. (Tr. 3/56-57, 5/242-43) Mr. Temchin testified that the
         transite pipe was not shown on any of the draw~ngs provided to PE (tr. 3/131-32).
         However, there is also evidence that this pipe was shown on the 35% drawings.
         There is existing HTHW pipe that is to be removed shown on drawing C-103 (R4,
        tab 1746, sheet 5). We resolve this confusion based on PE's reply brief where it
         admits that the drawings showed the HTHW pipe to be removed, "In PFFs 728-729,
        the AF points out that PE should have planned to remove the old HTHW line, and
        that point is undisputed" (app. reply br. at 109). We infer that PE's point is that
         ev.en if the HTHW pipe was disclosed on the drawings, the fact that it was "transite"
         insulated with asbestos was not. Therefore, we find that the differing site condition
         is not the old HTHW pipe but the fact that it was "transite" pipe insulated with
         asbestos.
                                              52
               settling from the organic layer, what do you thirik the
               chances are that the government would step up and say
               "that's okay, we told them it was okay to build on." Heck·
               no! We would go after them with a vengeance.

(Tr. 12/151; R4, tab 4296 at 3) By email dated 22 November 2006 to Mr. Thomas, PE,
-Mr. Rola requested "complete calculations of the Settlement Analysis" and asked
various questions about why the organic soil should be removed (R4, tab 855 at 1).

        112. Apparently PE was able to continue removal of the organic layer in locations
unaffected by the asbestos pipe because by letter dated 29 November 2006 to PE, PSI
reported that backfill in the area where the organic layer had been removed was
accomplished on 10 and 11 November 2006. PSI conducted field compaction tests and
verified the compaction requirements of 95% were met. However, PSI determined that
the backfill had been placed in "about 12 inch" lifts that exceeded the lift thickness
required by the contract. (R4, tab 79 at 1) The contract required that backfill be pl~ced
in 6-'inch layers (lifts) (R4, tab 16 at 104). Apparently the backfill associated with the
organic layer excavation was placed in thicker layers (lifts) (R4, tab 1573 at 39).
Mr. Temchin agreed that PE's subcontractor did not comply with the 6-inch lift
requirement 49 (tr. 5/230).                                                          ·

       113. Meanwhile, Mr. Rola took the position that the asbestos insulated pipe was
not a differing site condition (R4, tab 4298 at 1-2). In four emails, dated 30 November
2006, between Mr. Rola and CO Brown, the CO disagreed:

               [Rola to Brown 9:36 AM] The.Base cannot justify Parsons'
               claim of a differing site condition. Please see attached.

               [Brown to Rola 11 :07 AM] If we did not identify asbestos
               as being applicable to this site, then IAW FAR 52.236-
               2(a)(2), this is a differing site condition and was not
               anticipated in our "clean site."

               [Rola to Brown 1:20 PM] Did you receive this attachment?
               Our position is well supported in Construction Claims
               Monthly (January 1995 issue).

               [Brown to Rola 2:59 PM] Yes, but I will reiterate that you
               have a cancer-causing agent in- the site and it requires
               remediation. You did not identify asbestos on the project.


49
     Mr. Temchin's testimony was in response to a question that PE's subcontractor
         backfilled in 12-inch lifts rather than 8-inch lifts (tr. 5/230).
                                            53
              They did not therefore identify the costs for remediation in
              the proposal. We will LOSE this if they submit a claim.

(R4, tab 4298 at 1-2)

        114. By email dated 1 December 2006, Mr. Dukes sent PSI's settlement
calculations to Mr. Thomas and Mr. Temchin (R4, tab 862). On the top of the email is a
handwritten note by Mr. Rola, "2/23/07 Provided by Myron Terrichin" (id. at 1;
tr. 13/197). In September 2014, Mr. Rola wrote a summary of his 2006 evaluation of
PSI's organic soils calculations wherein he disagreed with PSI's recommendation to
remove organic soil (tr. 13/190, 193_-94; R4, tab 1452). Another technical analysis
dated 9 September 2014 from Versar, hired for purposes of the claim defense, agreed·
with Mr. Rola's _opinion that the organic layer did not have to be removed (tr. 13/215;
R4, tab 962).

       115. Mr. Temchin testified that PE had the risk associated with settlement and as
design-build contractor should have the right to decide how to construct the building
(tf.7/39, 44). Since PE was the engineer of record, it decided to remove the organic
layer without AF approval {tr. 3/127-28).

       116. By letter dated 18 December 2006 to PE, CO Brown requested more
information supporting PE's position that the organic layer should be removed (R4,
tab 254). By email dated 31 January 2007 to PE, Mr. Rola continued to take the
position that the organic layer did not need removal and that PE would remove it at its
own risk (tr. 3/50, 7/36; R4, tab 4018 at 1).

       117. Concerning the nonconforming backfill, by_ letter dated 18 December 2006
CO Brown notified PE that its backfiUwas not placed in 6-inch layers and directed PE to
provide adcHtional testing to show that proper compaction was achieved (R4, tab 878).
Mr. Temchin testified that the AF "wanted" PE to remove the backfill and install it in
6-inch lifts (tr. 5/231). The AF does not agree that it ordered the removal of the
noncompliant backfill, but instead asked PE to conduct additional testing to prove the
compaction was correct (gov't br. at 159-60).

      118. As of21 December 2006 the AF had not authorized the removal and
remediation of the "transite" asbestos pipe:

             Final Update and Result 12/21: 1) Asbestos Removal-
             Parsons preparing T&M ROM/or review and acceptance
             by the Government-NOTE: Area A of the VQ site remains
             at a standstill.




                                           54
 (R4, tab 3058 at 3) PE submitted its rough order of magnitude (ROM) estimate on
 28 December 2006 however Mr. Rola continued to argue that the asbestos pipe was not
 a differing site condition (R4, tab 4391 at 1-2). CO Brown continued to disagree:

               We had discussed it with our legal gurus and cannot concur.
               If we. the government, had not emphatically and repeatedly
               told the contractor that it was a clean site, your argument
               would have merit. However, because we, the government.
               did, we have a differing site condition.

 (Id. at 1)

         119. After verifying that the pipe· contained asbestos, the AF issued an NTP on
 28 December 2006 for the remediation of the asbestos pipe with a not-to-exceed amount
 of $27,000 (tr. 3/135; R4, tab 85 at 1). The pipe is shown in pictures in the record
 (tr. 3/30-31; R4, tabs 83, 4675 at 26). PE hired Horizon Environmental Group to
 perform the asbestos abatement which was completed between 25 January 2007 and
 1 February 2007 (R4, tab 1533 at 19, tab 3067 at 2, item 22.2). The delay associated
 with the asbestos is 90 days, 3 November 2006 to 1 February 2007, which was
 concurrent with the delay for the organic layer. After remediation of the asbestos
 insulated pipe, PE was able to restart removal of the organic layer material and then.
 move forward with the footings (R4, tab 3067 at 3). Mr·. Evans' as-built schedule
 indicates that "Removal & Replace Remaining Organic Layer" ended on 28 February
 2007 (R4, tab 3004 at 29).

         120. Concerning the fill placed in nonconforming lifts, ·PE removed and replaced it in
 conforming lifts and compaction. According to daily reports the work starting on 2 January
 2007 was sporadic due to winter weather. The work occurred between 2 to 4 January 2007,
 17 to 19 January 2007 and 26 to 28 February 2007 for nine days of work. (Ex. A-4 at 1-6,
 26""29, 86-90)

           121. Mr. Temchin testified that the three differing site conditions identified as
· "unsuitable fill," "organic layer," and "asbestos pipe" prevented PE from starting work on VQ
  Wing A foundation (tr. 2/178-80). Notes from a 22 February 2007 Contracting-Contractor
  Coordination meeting, that Mr. Temchin attended, contain a chronology of the asbestos pipe
  and organic layer work at note 22.2 (tr. 7/165-68; R4, tab 3067 at 2). Based on our review of
  the record we find Mr. Evans' as-built timeline for the organic layer and asbestos pipe delays
  to be credible (R4, tab 3004 at 29). The total delay was from 21 August 2006 to'28 February
  2007 or 191 days (id.). From this we subtract the 9 days taken by PE to remove and replace
  the fill that was improperly installed in lifts exceeding 6 inches, resulting in a delay of 182.
  days. We do not accept Mr. Evans' conclusion that the "unsuitable fill" delay occurred before
  the organic layer delay because they were both discovered on or about 21 August 2006 (R4,
  tabs 69, 3988). The unsuitable fill delay ran concurrently with the organic layer/asbestos pipe


                                             55
 delay. Therefore, the total delay caused by the unsuitable fill, organic layer and asbestos pipe
 was 182 days. 50

 AF Considers Termination/PE Accelerates Performance

        122. The record includes minutes of a 7 March 2007 meeting to discuss
 termination (tr. 12/50-51 ). The PowerPoint presentation used during the meeting was
 prepared by PE (tr. 12/53). Slide #4 "Impacts to Our Project" listed:

                  •  Subsurface Conditions
                      • Unsuitable Fill - Completed
                      • Organic Layer - Completed
                      • Asbestos Pipe - Completed
                  • Hollow Core Plank Issue - Active Correction
                  • Unusually Severe Weather- Over (hopefully)
                  • Water Pipeline Relocation - Completed
                  Acceleration to Recover

 (R4, tab 937 at 4) The hollow core plank issue was that PE ordered planks that were too
 short (tr. 12/54). Slide #5 "Reasons for Acceleration" listed:

                  •   Impacts

                           Unsuitable Fill, Organic Layer, and Asbestos Impacts
                           Schedule to 21 March 2008 Project Completion

                            Hollow Core Plank (Parsons Delay) Reduces Impacts
                          . to 22 Febru~ry 2008 Completion

                  Parso1,1s Is Accelerating Our Operations

                      •    Additional Resources
                      •    6 Day Week Accelerated Work
                      •    Acceleration of Schedule Lcigic

· (R4, tab 937 at 5) CO Brown recalled that PE was going to accelerate work to meet the
  27 December 2007 completion· date, to be established in Modification No. 03, and the
  AF decided not to terminate (tr: 12/51:-52, 56).

 50
      The AF's scheduling expert, Mr. Ockman, believes that tli.e construction debris,
          organic layer and asbestos pipe were differing site conditions, but that PE is not
          entitled to any time extension (tr. 18/61 ). We reject this position.

                                                56
 Modification No. 03 (Mod. 3)

         123. Leading up to Mod. 3, by letter dated 13 December 2006 to CO Brown, PE
  agreed to "pay 171 days of value equivalent to the liquidated damages rate ($134 7/day
  times 171 = $230,337) as consideration for the revised contractual completion date of
  27 Dec 07'' (R4, tab 4007 at 2). PE made. it clear that it intended to "seek recovery of
  this payment" because it believed REAs it intended to submit would "account for and
  absorb most, if not all, of these 171 days" (id.). ·By letter dated 8 March 2007 to
  CO Brown, PE listed seven claims (REAs) that were to be excluded from a release PE
. agreed to sign in upcoming Mod. 3:

                1. [T]he proposal for unsuitable fills submitted 7 Mar 2007,
                2. the proposal for the organic layer submitted 7 Mar 2007,
                3. the proposal for the remydiation of the asbestos pipe
                   submitted 7 Mar 2007, '
                4. any condition rell:l.ted to unusually severe weather during
                   the time period 1 Noy 2006 to 1 Mar 2007,
                5. any conditions related to delays in issuance of the notice
                   to proceeds during the design stage of the project,·.
                6. any conditions relating to the delays resulting from the
                   Air Force failure to promptly process submittal requests
                   within agreed to time frames,
                7. any conditions relating to delays as a result of the
                   submittal approval process for the roofing requirements
                   of this project.

 (R4, tab 3004 at 134)

          124. Bilateral Mod. 3, dated 20 March 2007, was signed by Mr. Radin (R4, tab 7C
  at 1). Mod. 3 extended the period of performance of DO 13 by 171 days from 9 July·2007
  to 27 December 2007 and decreased the total contract amount by $230,337 (R4, tab 7C
  at 2). This accounted for the 171-day delay in starting horizontal work (foundations 83
  days) and unsuitable fill (88 days) that occurred from 18 April 2006 to 9 October 2006 ,
  (tr. 7/214, 233-34; R4, tab 3004 at 134-38). Mr. Radin testified that a time extension was
  needed for the unsuitable fill, organic layer and asbestos pipe differing site conditions that ·
, was causing PE delay (tr. 1/130, 132-33). Mod. 3 included a qualified release:

               6. In consideration of the modification agreed to herein
               as complete equitable adjustments for the extended
               period of performance, the contractor hereby releases the
               government from any and all liability under this
               cont[r]act for further equitable adjustments attributable to
               such factors or circumstances giving rise to this contract

                                              57
              modification (except for the items listed on Parsons letter
              dated 8 Mar 07, Subject: Release of Claims Wording,
              Modification 03, McGuire TLFNQ, FA8903-04-D-
              8703-0013 (version 3)).

 (R4, tab 7C at 4) PE putthe limiting language in the release to preserve its rights to
 submit a claim for the $230,337 in order to recover it in the future (tr. 1/105, 132, 134,
 7/214, 233-34; R4, tab 4007 at 2). PE agreed to Mod. 3 to resolve the August cure
 notice (tr. 1/133-35). The 9 August 2006 cure notice was closed on 20 March 2007, the
_date of Mod. 3 (R4, tab 4028 at 7; tr. 1/136).

24 May 2007 Partnering Meeting/VQ Truss Delay

        125. On 24 May 2007 the parties held a partnering meeting to discuss the status
of the project. The record includes minutes from the meeting (tr. 12/61; R4, tab 983),
and slides that were used during the meeting (tr. 12/60; R4, tab 9,84). The minutes
stated that, "based on a worst case scenario" there appeared to be a five-week delay in
the completion date of the VQ and the "[m]ain reason for the slip in completion date on-
the VQ is truss delivery" (R4, tab 983 at 2). However, the slides indicate a twelve
workday delay in the completion of the VQ (R4, tab 984 at 21). The truss problem was
caused by a redesign from the 35% to the 100% design that caused a conflict be.tween
the truss shop drawings and the elevator shop drawings and the trusses could not be
ordered until the design issues \Vere corrected and shop drawings accepted (id. at 3).
CO Brown recalled that during the meeting PE acknowledged that the truss problem
was PE's-responsibility (tr. 12/63).

Second Cure Notice
                       .                                                               .
       126. On 31 May 2007 the government issued Cure Notice Number Two for the
following deficiencies:

              (a) Failure to provide a proposal as outlined in the Request
                  . for Proposal (RFP), dated l Nov 06 for Shopping List
                    Items
              (b) Delays in the schedule
              (C) Failure to ensure timely delivery of the steel trusses for
                    the VQ in a timely matter

(R4, tab 4039 at 2; tr. 1/138) The government issued the cure notice to PE "because we
couldn't get any reaction out of Parsons" on pricing the shopping list items (tr. 13/51-54).
Assembling the quotes for the shopping list was a lot of work and Mr. Radin felt that the
use of a c·ure notice for the shopp~ng list was a "very big misuse of the cure notice" ·
(tr. 1/139-41 ). PE responded on 29 June 2007 stating that it had submitted updated pricing


                                            58
for the "shopping list" on 19 June 2007 51 , accelerated the schedule by adding five
management staff and that the trusses had arrived on site (R4, tab 1499 at 631 ).

High Temperature Hot Water (HTHW) Differing Site Conditions

        127. The VQ 35% design drawing include drawing C-101 Existing Condition Plan
and C-103 Utilities Demolition Plan, however, these drawings do not extend to East
Arnold Avenue, a road west of the VQ site (R4, tab 1746, drawings C-101, -103). The
24 July 2006 100% VQ "for construction" drawing package, drawing C-10:4, General
Site Layout Plan, depicts the TLF and VQ adjacent to but on opposite sides of
Mitchell Road. On the drawing, the TLF is "above" (north) and the VQ is "below"
(south) Mitchell Road. (R4, tab 1755, drawing C-104) East Arnold Avenue is below the
VQ on C-107. Drawing C-107, Site Utility Plan, shows the "proposed" new HTHW52
line running from manhole #35 just below East Arnold Avenue up through manhole #35A
to a new manhole where the HTHW line divides going right to the VQ and further north
and under Mitchell Road to the TLF. (Id., drawing C-107}-

         128. The 100% VQ drawings include four drawings that provide information on
utilities: drawings C-101, Overall Existing Conditions Plan; C-102," Overall Existing
Conditions Plan; C-103, Demolition Plan; and C-107, Site Utility Plan 53 (R4, tab 1755,
drawings C-101, -102, -103). These drawings all have the following note:

                UNDERGROUND UTILITIES SHOWN HEREON WERE
                FIELD LOCATED BY MASTER LOCATORS, INC.
                BETWEEN 08/23/05 & 08/3 l/05.E54J THE CONTRACTOR
                SHALL'PHYSICALL Y VERIFY ALL LOCATIONS AND
                ELEVATIONS OF EXISTING UTILITIES PRIOR TO
                STARTING CONSTRUCTION.

(Id.) Mr. Temchin testified that in his experience this note required PE to verify the
utilities shown on the drawing, but does not obligate PE to locate every other utility on
the site that is not indicated on the drawing (tr. 3/63).


51
     Parson's proposal for the shopping list is actually dated 20 June 2007 (R4, tab 1013
         at 1; tr. 1/208). The most costly item is the additional site lighting at $593,698
         (R4, tab 1013 at 5).                                                  .
52
     The HTHW system was a loop that provided·hot water to heat buildings on MAFB
         (tr. 3/144).
53
     There is no drawin·g C-107 in the 35% drawing package.
54
     While the parties referenced this note (gov't br. at 176; app. reply br. at 136), neither
        party included evidence explaining who hired Master Locators or the work
        performed between 23 August and 31 August 2005 which was after award of DO
         13 on 13 July 2005.
                                               59
         129. The 100% VQ drawing C-107 included the following note:

                UTILITY LOCATIONS AND INVERTS ARE BASED
                UPON FIELD SURVEY AND BEST AVAILABLE
                DATA. THE CONTRACTOR IS TO VERIFY ALL
                UTILITY LOCATIONS AND INVERTS PRIOR TO
                CONSTRUCTION. IF ANY DISCREPANCIES ARE
                FOUND THE CONTRACTOR IS TO CONTACT THE
                DESIGN ENGINEER IMMEDIATELY.

(R4, tab 1755, drawing C-107)

        130. Before PE could start digging it had to get a dig permit from the base
(tr. 3/159). The dig permit provides that all utilities be marked by the base. Various
"shops" from the base came out and marked utilities using different color paint indicating ·
the type of utility but they were unable to detect everything. (Tr. 3/64, 159-60, 6/81-82,
18/296-97)

        131. PE' s subcontractor began installing the HTHW line to the VQ on 24 July
2007 (R4, tab 1574 at 93). Mr. Burdick, PE "tiger team" member, was assigned to
manage installation of the new HTHW system (tr. 3/138, 141-43). PE took pictures of
obstructions encountered during installation of the new HTHW line that it considered
differing site conditions. The pictures are identified numerically and some are date~:

     •   DC #1: Picture dated 11/24/2007. "Existing HTHW Expansion Loop" encased
         in concrete not shown on drawingsl55 l or marked out. (R4, tab 153 8 at 74, tab 21
         at 38; tr. 3/146-47, 158-59, 184-85)
     •   DC #2: No date. "Two Chilled Water Lines 30' Away From Design Drawing
         Location." (R4, tab 1538 at 75, tab 21 at 38; tr. 3/161-62)
     •   Dc'#3: Picture dated 11/24/2007. "20" Storm Drain Not Shown On Design
         Drawing." (R4, tab 1538 at 76, tab 21 at 38; tr. 3/165-67) ·
     •   DC #4: Picture dated 11/24/2007. "Ruptured Terra-Cotta Sewer Line Running
         North To South" not shown on drawing or marked out. (R4, tab 1538 at 77,
         tab 21 at 38-39; tr. 3/167-69, 187)
     •   DC #5: Picture not dated. "Two Metal 1 Inch Diameter Conduits Thought To
         Be Parking Lot Power Feeds Not Shown On Design Drawings.'' (R4, tab 1538 at
         78, tab 21 at39; tr. 3/169-72)
     •   DC #6: Picture not dated. "20" Inch Storm Drain On The South Side Of The
         Excavation Beyond The Sanitary Sewer Line." (R4, tab 1538 at 79, tab 21 at 39;
         tr. 3/174-75)
     •   DC #7: Condition removed (R4, tab 21 at 39). ·


55
     At a later date the base produced a drawing that showed this feature (tr. 3/186).
                                              60
      •   DC #8: Picture dated 12/01/2007. "24 Inch Storm Drain Beyond The Road
          Crossing." (R4, tab 1538 at 80, tab 21 at 39; tr. 3/175)
      •   DC #9: Picture dated 12/01/2007. "Rerouting Of The HTHW To Meet The New
          Manhole 358 Location" because manhole #35 was not big enough to connect
          new HTHW line.· (R4, tab 1538 at 81, tab 21 at39, tab 3015 at 190-91;
          tr. 3/147-49, 176-77, 6/80-82)
      •   DC #10: Picture dated 11/30/2007. "Temporary Removal And Replacement Of
          Sign At Community Center" caused by DC #1. (R4, tab 1538 at 82, tab 21 at 40;
          tt. 3/179-80)
      •   DC #11: Picture dated 12/03/2007. "HTHW Loop Just Beyond Arnold Road
          Crossing."[561 (R4, tab 1538 at 83, tab 21 at 40;tr. 3/181)       '

 According to PE, these differing site conditions caused additional time and costs for
 hand digging, ~dditional HTHW pipe, additional welding, additional backpoe time, and
 rerouting HTHW lines (tr. 3/182-83 ). PE planned to connect to the existing HTHW
 system in manhole #35, however, with the existing piping in the manhole it was not big
 enough and PE had to reroute the HTHW line, DC #9 above, and install a new manhole
 #358 (tr. 3/147-50, 6/80-82; R4, tab 3015 at 190-91). The new manhole #358 was
 adjacent to #35 (tr. 3/150). On cross-examination, however, Mr. Burdick agreed that if
 one looked in manhole #35 it was immediately apparent there was not enough room to
 make the new HTHW connection (tr. 3/203; R4, tab 3015 at 190-91).

         132. PE marked the locations of these numbered pictures on a copy of 100% VQ
drawing C-107 (tr. 3/181-82; R4, tab 1538 at 73 57 ) and they were annotated during the
trial in red ink on drawing C-107 (R4, tab 1755 at C-107). We compared the locations
of the pictures with the utilities shown on C-107. There are no utilities shown on C-107
crossing the HTHW line for pictures #1, #4, #5 and #6. Pictures #2, #3,:and #.10 are in
the vicinity where the HTHW line crosses telephone and storm sewer lines. Pictures #2
and # 10 do not involve telephone lines or the storm sewer. Picture #8 is in the vicinity
of where the HTHW line crosses a water line but picture #8 shows a storm sewer.
Picture #9 shows the existing HTHW line at manhole #3 5 where the new HTHW line
had to be rerouted to the new manhole. Picture # 11 shows a concrete encased
abandoned HTHW line not shown on C-107.

        · 133. We discuss picture #3 separately. In its brief, PE identifies the utilities
  shown in picture #3 as two chilled water lines, a 20"storm drain, and phone and
  communication conduit lines (app. br. at 207-08). PE argues that all it had was the
· Baker 35% drawings and the base colored .utility markings to go by and they do not
  show the utilities shown in picture #3 (id. at 208-09). PE is correct that the 35% YQ
  drawings do not show what is seen in picture #3 because those drawings do not extend

56
     After the expansion loop was discovered the base located a drawing indicating it was
         an active HTHW line (tr. 3/189).
57
     This is incorrectly identified in the transcript at page 76 (tr. 3/181-82).
                                             61
. down to East Arnold Avenue (R4, t~b 1746, drawings C-101 to -103). But we rely on
  the 100% for construction drawings, not the 35% drawings. Looking closely at VQ
  100% drawing C-107 in the vicinity of picture #3 we see lines marked "ST" and "T"
  crossing the path of the new·HTHW line (R4, tab 1755 at sheet 9). Drawing C-107's
  legend identified "ST" 58 as storm sewer and "T" as telephone line (id.). We see in
. picture #3 the telephone lines and the storm sewer, just where they are supposed to be. ·
  PE' s argument is inconsistent with what we see on C-107. PE drafted C-107 and must
  have gotten the locations of the utilities around- East Arnold Avenue from somewhere,
  but PE does not explain where. Also, neither party explains the drawing note that state,
  "UNDERGROUND UTILITIES SHOWN HEREON WERE FIELD LOCATED BY
  MASTER LOCATORS, INC. BETWEEN 08/23/05 & 08/31/05." (R4, tab 1755,
  drawings C-101 to -103) In any event, we are left with many questions, but find that the
  20" storm drain that PE contends is a differing site condition, DC #3, was shown on
  C-107 in the path of the new HTHW.

          134. According to Mr. Morrison, the utilities that PE contends are differing site
  conditions shown in the numbered pictures and annotated on drawing C-107 were
· identified on the AF "G-Tab" drawings (tr. 11/176-77; R4, tab 1406 59 at 36).
 Mr. Morrison testified that he received the G-Tabs from Mr. Ward and gave them to the
 bidders (tr. 11/178, 196-97). Mr. Lengyel testified that PE received G-Tab drawings which
  are AutoCAD files that showed utilities on MAFB (tr. 4/224). The record included an
  example of a G-Tab 60 that shows the locations of existing utilities, abandoned utilities and
 the new HTHW line (tr. 4/229; R4, tab 4678). 61 Mr. Lengyel testified that this G-Tab
 showed the utilities that existed before the demolition of the pools and someone from PE
 overlaid the footprint of the VQ and the new HTHW line on it (tr. 4/229). The G-Tab
 identifies utilities by colors: purple is "G-Tab water," tan is "G-Tab sewer," light blue is
 "G-Tab storm drain," yellow is "G-Tab Electrical," green is "G-Tab [existing] HTHW,"

58
   There is a conflict on C-107 in that the symbol "ST" is the same for "existing storm
        sewer" and "proposed storm sewer." Because the line we see crossing the new
        HTHW connects "existing storm grates" and "existing headwall," we conclude
       that the storm sewer line at this location was an existing and not a proposed
        sewer line. We also believe that the new utilities were meant to be. shown in bold
        as many are and it may be a problem with reproduction of the drawing. The·
       parties did not present any evidence to assist us in resolving this conflict.
59
   Rule 4, tab 1406 at 36 is the same document with the marked drawing C-107 that is
       at Rule 4, tab 1538 at 73.
60
   This G-Tab was produced for the first time at the hearing. The government was given
       the opportunity to verify the accuracy of PE' s composite utility map after the
       hearing but did not report back to the Board that it was inaccurate. (Tr. 18/291-93)
61
   Another G-Tab is at appellant's exhibit 17 (tr. 19/272), however, although we can
       make out the general location, exhibit 17 is illegible, and no detailed testimony
       was presented on this G-Tab.                                                   ·

                                            62
  and violet is "new HTHW" (R4, tab 4678). PE created hearing exhibit 15 where it
. annotated the G-Tab with the locations of the numbered pictures as it had on drawing
  C-107 and included the pictures associated with each G-Tab location (ex. A-15; app. br. at
  219). 62 In evaluating this evidence, we compared.the path of the new HTHW line on the
  G-Tab with that on C-107 and they are obviously different. 63 9n the G-Tab tl.ie new
  HTHW line is generally shown on the right side of the existing HTHW line but on C-107 it
  is shown parallel to but on the left side of the existing HTHW line. The G-Tab path of the
  new HTHW line (violet) shows an expansion joint directly over manhole #35A on the
  existing HTHW line (green), an expansion joint on the existing line that is not shown on
  C-107, and the line going directly through manhole #35. Also, we took into account that
  PE initially marked the locations of the numbered pictures on the new HTHW line shown
  on C-107. (R4, tab 2538 at 73) Therefore, absent evidence to the contrary, we rely on the
  location of the new HTHW line as shown on C-107 and not the location on the G-Tab. We
  approximated the path of the HTHW line shown on C-107 on the G-Tab, and looked to see
  if the obstructions PE encountered were shown on the G-Tab. While we are able to see.
  utilities shown ori both the G-Tab and C-107, as best as we can decipher and contrary to
  Mr. Morrison's testimony 64, the obstructions shown in PE's pictures are not shown on the
  G-Tab except for the storm sewer seen in picture #3 we discussed above (R4, Jab 4678;
  ex. A-15 at 6).

         135. The differing site conditions are identified above as numbers 1, 2, 4, 5, 6, 8,
 10, and 11. PE does not contend that there is critical path delay. We deal with this
 further in the quantum section of this decision.

 Temporary Heat

         136. Mr. Burdick'was asked by Mr. Temchin to be part of a tiger team to assess
 progress on the contract (tr. 3/138). He started in June 2007 (tr. 3/139). Mr. Burdick
 testified that PE planned to install the HTHW system in the summer of 2007 but it was
 pushed into the fall and winter due to delays in approval of documents so they had to
 provide heat to the buildings (tr. 3/196-97).



62
     We are a bit confused because the colors are not the same on exhibit 15 and the G-Tab
           we believe it is based on, i.e., storm drain is light blue on the Q:. Tab and dark blue
           on exhibit 15. Additionally there is .a gas line on exhibit 15 we do not see on the
         , G-Tab. (Ex. A-1.5; R4, tab4678)
63
     There was no testimony or argument in the parties' briefs recognizing this obvious
           discrepancy. If, in fact, PE's installation of the new HTHW deviated from the
           path required on C-107, it should have been explained in the record.
64
     If in fact this or some other G-Tab. contradicts PE' s differing site conditions, we
           would have expected the AF to present specific evidence on each differing site
           condition actually identified on the G-Tab.
                                                63
         13 7. Ms. Mendez is a CO who started work with AFCEE on 1 October 2009
 (tr. 15/246-47). She testified that the 100% design specification for the VQ, paragraph
 1.15, provided that the government would provide "domestic water and electricity."
 Heat was not provided because if it was on during construction the ducting and
 equipment would take in construction dust and debris; (Tr. 15/248-49; R4, tab 16 at 19)

        138. Mr. Temchin testified that PE planned to use the HTHW to heat the
 buildings. The restriction CO Mendez testified about is not in the contract. PE could
 work around the restriction to heat the buildings. (Tr. 18/298-99) PE planned to hook
 up the HTHW in the warm months and do a "cold tap" but due to delays putting the
 hook-up in the winter months, PE had to do a "hot tap" that was completed in February
 2008 (tr. 3/193-94; R4, tab 3014 at 4-11). The record includes pictures of work being
 performed in snow (R4, tab 3014 at 12-16) .. PE purchased and rented heaters and
 generators to heat the TLF arid VQ during construction (tr. 3/195-96).

 Stormwater Detention Pond and Underground Storage

         139. The Baker 35% design, drawing C-106, included a stormwater "detention
· basin" at the VQ (tr. 2/197-200; R4, tab 1746 at sheet 8). The NAF made the decision to
  use an open pond to control stormwater runoff (tr. 2/204). PE hired Everland Shourds
  & Associates (ES.A), a geotechnical consultant, to help complete the design for the
  100% drawings (tr. 2/202).

          140., The VQ 100% design drawing package "for construction" is dated 24 July
  2006 (R4, tab 1755). The 100%design included drawing C-106, "GRADING &
  DRAINAGE PLAN," that showed the pond. Drawing C-106 included a Soil Boring _
  Log that indicated groundwater at 114". 65 The depth of the boring was 114" and it was
  adjacent to the pond at elevation 110.40. (R4, tab 1755 at sheet 8) The Soil Boring Log
  on Drawing C-106 indicates that groundwater was approximately 5 feet below the
  bottom of the pond (tr. 18/304-05; ex. A-16 at 2). Mr. Temchin testified this depth was
  consistent with the 5 to 7 feet groundwater depth found in the 2003 66 PSI geotechnical
· report (tr. 18/305-06). MAFB, including Mr. Rola, base civil engineer, approved the
  100% drawings with the surface retention pond design (tr. 2/212). PE built the pond as
  it was designed and approved (tr. 2/203, 205,212; R4, tab 1755 at sheet 8).
                                                                                               I

         141. In the fall of 2006 there was a "hundred year storm" that filled the pond with
 water (tr. 2/205-06). By email dated 8 September 2006 to Mr. Ward, PE; Mr. Rola stated
 that he had observed an "apparent deficiency in the construction of the stormwater
 detention basin" in that the basin had not drained after 36 hours (R4, tab 4537). The .

 65   There is a note that indicates groundwater at 112", but the actual boring log indicates
           114" and that is what we rely on (R4, tab 1755 at sheet 8).
 66
      In transcript, volume 18, page 305, the question incorrectly refers to the report as being
           from 2005, but the answer correctly identifies it as from 2003 (tr. 18/306).
                                               64
 stormwater detention pond was required by the New Jersey Pinelands Commission, a state.
 organization (R4, tab 2A at 9) and was supposed to drain into the aquifer within 72 hours
 (tr. 13/223). PE, in its brief, accepts this 72-hour requirement (app. br. at 257). The pond
 did not drain the way it was designed to drain (tr. 13/224 ). When the detention pond did
 not drain PE had ESA investigate. By letter dated 10 July 2007, ESA reported its res!]lts.
 ESA found groundwater 10 inches below the bottom of the pond, a little over 4 feet higher
 than found in the PSA report and ESA's boring on drawing C-106. (Tr. 18/306-08;
 ex. A-16 at 15-17) Mr. Temchin testified the pond did not drain because the water table
 was higher than indicated on the original boring; which PE says is a differing site condition
 (tr. 18/307-10). ESA suggested a solution at additional expense buttook the position that
 it was not its responsi.bility 67 because of the unforeseen field conditions (tr. 2/208-09,
 7/170-74; R4, tab 4049 at 3-4).

         142. Mr. Temchin recalls a face-to-face meeting with an AF environmental attorney
 from MAFB where he was informed that an open pond for stormwater runoff with
 freestanding water was a violation of base regulations due to bird hazards near runways
 (tr. 2/204-05, 2/211). In a 19 July 2007 joint coordination meeting Mr: Rola stated that
 MAFB has a "no ponds - no birds -: no standing water" requirement and that the basin had
 to "drain constantly" (R4, tab 3103 at 3). In a 25 July 2007 email to Mr. Richardson, PE,
 Ms. Ampula, PE, documented a meeting with "Alice" the base environmental attorney
 where "Alice" said the Base no longer allowed retention ponds (R4;tab 4649 at 1). Since
 MAFB did not allow surface retention ponds, PE/ESA had to design and install an
 undergroundwater storage and draining "tank farm" consisting of large corrugated pipes
 (tr. 2/207-08). On 28 September 2007 ESA submitted an addendum to the Stormwater
 Management Report that documented modifications to the retention basin to construct an
 underground retention system (R4, tab 4654 at 2, 4). Mr. Temchin testified that the change
 was caused by the differing site condition (high water table) and new set of regulations
 (tr. 7/174-77). PE "went out and installed the underground pipe storage tank gravel liner
 pond, without any formal approval or funding given to us or without any recognition of a
 differing site condition" (tr. 2/222-23; R4, tab 3982 at 2). PE contracted with Robert E.
 Haas, Inc., excavation subcontractor, to instaHthe underground retention system for a price
 of $248,390.00 (R4, tab 4282 at 1, 11-13, 19).

· Architect's Supplemental Instruction No. 13

       143. After award of DO 13 in July 2005, the AF continued to create confusion
 concerning the use of Sherman Williams paint on walls of the VQ (R4, tab 293 at 1-2,
 16). The 100% Room Finish drawing 1-301 for the TLF, dated 24 July 2006, was the
 same as the 35% drawing requiring "paint" identified as "TRIARCH INDUSTRIES
 ANTIQUA DS II" for the guest rooms (R4, tab 1754, drawing 1-301). The 100% Room

 67
      Mr. Shockley, PE's general superintendent, testified that ESA accepted responsibility
          for $15,917.50 in work related to resolution of the drainage problem with the
          stormwater retention pond (tr. 6/45,125; R4, tab 3011 at 4).
                                              65
Finish drawing ID-401 for the VQ, dated 24 July 2006, was the same as the 3 5%
drawings requiring "paint" identified as "Sherwin Williams" for the guest rooms (R4,
tab 1755, drawing ID-401). The AF failed to correctthe error in the VQ 35% drawings
when it approved the 100% drawings.        ·

        144. In RFI No. 43, 7 November 2006, concerning the VQ, PE asked, "[i]t was
mentioned by Ann Mongiovi, that the designers at AMC do not like the Triarch paint
that is specified and that it is difficult to patch if damaged. Is there an alternative that
the client would like to use instead." (R4, tab 96 at 1) The response listed Sherwin
Williams paint:

              ITEM     REFERENCE                   COMMENTS
                1      Drawing ID-401       Finish and Material Schedules.
                                            Please correct the schedules
                                            according to the following:



                                            2. Change the wall finish in all
                                            other guest rooms to PNT-3 ·
                                            throughout (including the
                                            entries and bathrooms)


                                            7. Change PNT-1 to Sherwin
                                            Williams SW 6098 Pacer White.
                                            8. · Change PNT-2 to Sherwin
                                            Williams SW 6099 Sand Dollar.
                                            7. Change PNT-3 to Sherwin
                                            Williams SW 6126 Navajo White.
                                            8. Change PNT-5 to Sherwin
                                            Williams SW 7027 Well-Bred Brown
                                            9. Delete PNT6

(Id. at 3) The only change was to the color of the Sherwin Williams paint. Mr. Temchin
testified that this response directed the us~ of Sherwin Williams paint even though this
direction conflicted with Mr. Williams, of AFCEE, who wanted °Triarch to be used in the
VQ (tr. 5/255-58).

     145. Mr. Temchin testified that there was confusion over how the AF wanted the
VQ and TLF painted (tr. 3/69). To resolve this confusion, PE wrote Architect's




                                             66
· Supplemental -Instruction 68 (ASI) No. 13 to clarify what wall covering to apply in the
  VQ and TLF (tr. 3/69, 5/260-62). ASI No. 13, dated 27 August 2007, signed by
  Mr. Bennett, KCB Architect, included the following:

                DESCRIPTION:

                Attached are revised specifications for PAINTING 09911
                (for both the VQ and TLF) and new specifications for
                TEXTURED ACRYLICCOATING 09960 (for the TLF).

                Also, the following is a clarification of the Duroplex -
                Triarch Industries product indicated on .the Material
                Schedule of the Interior Design Package for the TLF (Sheet
                I301): ·

                PNT-1 "Pasta"' indicates Duroplex-triarch 525 for ceiling
                locations. This is to be changed to have all ceilings to be
                painted with standard satin paint matching "Pasta" 525 in
                color.

                PNT-2 "Limestone - eggshell" indicates Duroplex-Triarch
                555 for wall locations in living room, bedroom and closets.
                This is correct. The eggshell finish is the natural finish for
                the Duroplex product.

                PNT-3 "Limestone - semi-gloss" indicated
                Duroplex-Triarch 555 for wall locations in kitchen, dining,
                bath and trim locations. This is correct. The semi-gloss
                finish is a clear sealant application by Duroplex for
                wet-washable wall areas.

                EXPLANATION:

                The specification section PAINT 09911, as indicated in the
                RFP and subsequently in the 100% documents for both the
                VQ and TLF, was specifically for the Duroplex-Triarch
                material. not paint in general. There was no paint
                specification for general pain,ting applications. Thus. the
                paint specification 09911 has been revised and is reissued
                per this ASI f~r general painting applications (both TLF and


68
     An ASI ,is an Architect's Supplemental Instruction that is similar to an RFI except for
        archhectural questions (tr. 2/107).
                                              67
                VQ), while the Duroplex-Triarch material has. been clarified
                properly as 09960 TEXTURED ACRYLIC
                COATING (for just the TLF. NOTE: there is no Duroplex
                system specified for the VQ).

                The owner clarified that the ceilings in the TLF will be
                painted only (no textured coating) with the color to match
                the PNT-1 "Pasta 525" color. This ASI formalizes this
                clarification.

(R4, tab 4088 at 7-8) ASI No. 13 was approved by CO Brown on 19 September 2007
(tr. 5/263, 6/158; R4, tab 4088 at 6). PE understood that it was to apply Duroplex-Triarch
to the walls of the TLF and Sherwin Williams paint to the walls of the VQ (tr. 3/78).
Mr. Cardinale was PE's project manager on the TLFNQ project from the end of 2007
through November 2008 (tr. 5199). Mr. Cardinale testified that ASI No. 13 indicated that
no Triarch would be used in the VQ (tr. 5/208). After approval of ASI No. 13, PE directed
its painting subcontractor; Pro-Spec, to start applying Sherwin Williams paint to the walls
of the VQ (tr. 3/70). 69

       146 .. By letter dated 25 January 2008 to PE, CO Elizalde stated that Specification
Section 09911 required that Triarch be applied to the walls of the VQ. The letter
acknowledged that Triarch was not specified in 100% VQ drawing ID-401 but stated that
according to the contract, specifications take precedence over drawings. (R4, tab 316 at 2)
PE responded by letter on 1 February 2008 stating that it issued ASI No. 13 to resolve
concerns over ''discrepancies between and the Government revised painting schedule
shown on Drawing ID401 and the requirements of Technical Specification Section 09911"
(R4, tab 4629 at 3). PE went on to write:.

              · ASI-13 offers clarification and revises the requirements of
                Technical Specification Section 09911, Painting dated
                24 July 2006 by eliminating Duroplex coatings by Triarch
                Industries from the VQ and revises Technical Specification
                Section 9960, Textured Acrylic Coating by defining
                requirements for Duroplex Triarch for use only in the TLF.
                The Government reviewed ASl-13 and the Contracting
                Officer approved it on 19 September 2007 ([attach.] 2, page
                1) .. Since that approval, Parsons µas completed our
                subcontracting process, mobilized resources to the site and
                is currently painting in the TLF and VQ.

69
     We cannot reconcile this testimony with Mr. Evans' Delay Review Period 9 as-built
        schedule that shows that painting ·in the VQ started on 26 January 2008 (R4,
        tab 3004 at 47).

                                             68
(Id.) Mr. Cruz took CO Brown's place as CO at the end of2007 and served as CO through
a portion of 2008 (tr. 2/252). On 1 February 2008 CO Cruz called Mr, Dukes disagreeing ·
with the letter and stating he expected Triarch to be used in the VQ (R4, tab 4629 at l ).
ASI No. 13 authorized Sherwin Williams paint, not Triarch, in the VQ. 70

        147. By letter dated 4 February 2008, CO Brown confirmed her verbal direction
that PE was to "paint the VQ in accordance with Section 09911 - Painting" that specified
Duroplex by Triarch Industries (R4, tab 318). By letter dated 8 February 2008, PE
responded to the 4 February 2008 letter contending that the direction was a constructive
suspension (R4, tab 104). By letter dat~d 15 February 2008 to PE, CO Cruz rescinded
ASI No. 13 and directed PE to follow TLF specification Sections 09911 Painting and
09960 Textured Acrylic Coating for both the TLF and VQ and directed that a Triarch
Duroplex finish be applied to the interior walls of both the TLF and VQ (tr. 3/71; R4,
105 at 2) 71 • Mr. Williams was the person who insisted that ASI No. 13 be rescinded
because Triarch was an AF lodging standard and could not be taken out of the contract
(tr. 15/26-27). PE responded to CO Cruz's 15 February 2008 letter on 19 February 2008
stating that the direction in the letter created an "impossibility of performance" and
"constructive suspension" at the VQ and TLF until certain issues, itemized in the letter,
were clarified (R4, tab 107). Mr. Temchin testified that the direction to use Triarch cost
PE additional time and expense (tr. 3/84).

        148. PE subcontracted with Pro-Spec to apply Triarch in the VQ. Mr. Cardinale,
PE, recalled that Pro-Spec's overall performance was "poor" (tr. 5/101). The Triarch VP,
Mr. Wingate, looked at Pro-Spec's application ofTriarch in the sample room and said it
was not acceptable (tr. 5/102-03). PE terminated Pro-Spec (tr. 5/104). PE hired two
contractors, KLM and Fromkin Brothers, to replace Pro-Spec (tr. 3/79-80, 5/104):
Fromkin installed Triarch in the TLF, and KLM installed Triarch in the VQ (tr. 5/105). A
total of 149 days elapsed between CO Brown's approval of ASI No. 13 on 19 September
2007 and CO Cruz's rescinding ASI No. 13 on 15 February 2008.

Modification No. 05 (Mod. 5)

        149. Bilateral Mod. 5, 23 June 2008, incorporated the agreed upon "shopping
list" and increased the contract price by $499,441.00 (R4, tab 7E). The modification
included a release for "any and all liability under this modification for further equitable

70
     In its reply brief PE contends that ASI No. 13 did not change Triarch to paint (app.
          reply br. at 170-71 ), but that is based on its argument that VQ Section 09911
          specifies paint not Triarch, an interpretation we do not agree with. It is also
          inconsistent with PE's 1 February 2008 letter.
71
     Mr. Evans' as-built schedule for Delay Review Period 9 shows the Triarch being
          installed in the VQ between 3 March 2008 and 24 March 2008 (Areas B & C)
          and 3 March 2008 to 22 April 2008 (Area A) (R4, tab 3004 at 47).
                                             69
adjustments attributable to such facts or circumstances giving rise to the 'proposal(s) for
adjustment' (except for None)" (id. at 3). The release also included a statement that PE
"will not release the government in a 'blanket' fashion· for all events that have occurred
on the project to date" (id.).

Standing Seam Metal Roof (SSMR)

       150. Both the TLF and VQ have SSMR's (R4, tab 2 at 506, 1089). These types
of roofs are subject to "oil canning" that is a "perceived waviness in the flat areas of
metal roofing" that is "an inherent part of light gauge cold formed metal products" (R4,
tab 116 at 14). After RFP 8234 Amendment No. 1, the r~quirement for the SSMR was,
"The panels shall be manufactured of adequate metal gauge and rigidity to eliminate or
seriously minimize any 'oil canning' effect" (R4, tab 2A at 20).

       151. The submittal log for the SSMR indicates that PE's initial submittal was
made on 16 February 2006 (R4, tab 361 at 1): The submittal was disapproved and PE
w~s told to revise and resubmit (id.). The SSMR submittal was resubmitted on or about
15 August 2006 and on 4 October 2006 was again disapproved (R4, tab 116 at 34). The
reason was explained by Mr. Rola:

              _ 1. The Fabralsystem notes indicate, "Oil-canning in panels
               is common to the industry and shall not be cause for product
               refusal." The Base standard and the Parsons specification
               (spec 07411 1.6A (5)) say, "Panels shall be manufactured of
               adequate gauge and rigidity to eliminate any 'oil-canning'
               effect. The Government will not release any
               Contractor/Manufacturer from liability for rejecting SSMR
               panels on the basis of the 'oi.1-canning' effect on the final
              ·system." Therefore, Fabral does not meet the specification
               for oil-canning.

(Id. at 16, 35)

        152. By letter dated 23 October 2006 to PE, the SSMR installer, Warburton's,
Inc., responded to the AF's disapproval of the SSMR submittal and included a letter .
from Fabral, the manufacturer of the SSMR panels, discussing oil canning (R4, tab 116
at 18-20). Citing, and attaching-to the letter, the Metal Construction Association's
technical bulletin covering oil canning, Fabral explained, "we agree with the industry
position that no manufacturer can guaranty that oil canning will not occur" (id. at 20).
                                                                         ----....._

        153. On 30 November 2006 PE resubmitted its SSMR submittal and on
11 January 2007 it was again disapproved by CO Brown (R4, tab 116 at 43). One of the
reasons for the disapproval was, "Manufacturer should insure that material will not oil
can" (id. at 44 ). The disapproval apparently relied on an em_ail exchange on 4 December

                                            70
2006 where Mr. Lyman, MAFB design chief, and Mr. Rola agreed that the submission
should be disapproved because the manufacturer, Fabral, would not say there will be no
oil canning (R4, tab 4306 at 1-2). Mr. Lengyel testified that Mr. Rola refused to approve
metal roof submittals that did not include a guarantee against oil canning. However, he
al~o testified that it was not possible to eliminate oil canning and the disapproval caused
delay in installing the roof. (Tr. 4/261-62)

        154. On 5 March 2007, Mr. Slade, AF contract inspector, emailed his roofing
submittal comments to Mr. Thomas. Comment No. 5 reads, "Identify how this system
shall be manufactured and installed to elimate [sic] 'oil canning."' (R4, tab 116 at 62)

       155. On 27 March 2007 PE resubmitted its SSMR submittal (R4, tab 370 at 1).
In a 12 April 2007 internal email, Mr. Rola wrote:

              Also, we all need to understand that the FABRAL system .
              was initially rejected because FABRAL could not warrantee
              "oil-canning" as required in the spec. Parsons continued to
              make the same submittal (three times) and assured us that
              they would do everything possible to minimize.oil canning.
              So we caved in and said OK.

(R4, tab 367 at 2) During a 12 April 2007 meeting Mr. Thomas stated that the SSMR
was on the critical path (R4, tab 368 at 1, 3). On 18 April 2007, CO Brown formally
approved PE's submittal for the SSMR (R4, tab 370 at 1).

        156. On 27 April 2007 a meeting was held to discuss the acceptability criteria for the
SSMR (R4, tab 371 at 1). Oil canning was discussed and Mr. Lyman asked if the thickness
of the roof material (24 gauge) might be a problem (id. at 2). Mr. Rola asked if a thicker
22 gauge would be better (id. at 2-3). PE agreed to "look at" 22 gauge and the Fabral
representative at the meeting agreed to provide a quote for 22 gauge material (id. at 3).
After learning of the increased cost for the thicker 22 gauge material, CO Brown formally
approved the 24 gauge material in her 7 May 2007 letter to PE (R4, tab 116 at 91 ).
Installation of the SSMR began on or about 17 May 2007 (R4, tab 3084 at 3, ,r 59.2).

        157. Mr. Shockley testified that the government's refusal to approve the standing
metal roof contractor without a commitment to eliminate "oil canning" caused delay and
moved the work into the rainy season resulting in leaks and damage to wallboard (tr. 6/99).
Mr. Temchin testified that the delay in approving the SSMR caused by the "oil canning"
issue resulted in leaks (tr. 6/176). Because of the leaks, PE incurred additional costs to
change to all weather (mold resistant) sheetrock (tr. 6/176-77, 7/125-26).




                                           71 .
    Exterior Insulation and Finish System (EIFS) 72

           158. On 9 May 2007 Mr. Bennett issued an ASI No. 8 correcting a problem with
    the 100% construction drawings for the TLF and VQ (R4, tab 4603). The drawings
    specified that stucco was to be installed on rigid insulation that was contrary to the
    manufacturer's recommendations and warranty requirements (id. at 1). The ASI
    changed the application of the stucco to solid substrate, not rigid insulation 73 (id.). EIFS
    was mentioned in ASI No. 8 but was not part of the recommended change (id.).

            159. In a 31 May 2007 email; Mr. Rola criticized ASI No. 8 stating that it was
    taken to be an RFI (R4, tab 992). In .a 30 August 2007 internal email Mr. Bennett state~T'
    that PE originally intended to use EIFS but changed to stucco during the 65% design
    phase (R4, tab 4605). Also, in that email Mr. Bennett complained that Mr. Rola was not
    referring to RFP 8234:                                       \

                   Andy Rola is comparing our 100-percent drawings with the
                   ASI 8. He is not comparing our ASI 8 with the RFP. Ifhe
                   were to do so, he would find that there is no way to measure
                   whether we are in compliance or not, thus we are being·
                   penalized by our own design which isn't contractually correct
                   and Cheryl Brown needs to be told so. All that can be
                   enforced is the code and the RFP. Ifwe meet that, including
                   the design details, then how we come up with the R-values is
                   part of the· design they hired us to do.

    (R4, tab 4605) Mr. Bennett recommended returningto EIFS (id.).

\
            160. The next mention of EIFS in the record is a series of emails on 31 August
    2007 (R4, tab 117 at 2-3). Apparently there was a problem with window clearance,
    "What I think we are looking at here is that the EIFS window 1-1/2" return detail did not
    get incorporated in ASI 8 and we now have a dimension bust as a result" (id. at 5).
    Apparently ASI No. 8 caused this problem, "ASI 8 is the problem. Therein lies the bust
    because that is where the thickness change occurred." (Id. at 4) In a 4 October 2007
    internal email from Mr. Bennett, he stated, "I have just received a verbal commitment
    from David Williams that EIFS CAN and WILL be used on the TLF, not the stucco, and
    that this will solve the window trim issue!" (id.). bn 17 October 2007 PE's submittal
    for "EIFS System vs. Stucco System" was approved by CO Cruz (R4, tab 375).



    72   There was almost no discussion of this issue at.the hearing.
    73   In its brief PE incorrectly states that ASI No. 8 "proposed utilizing an exterior
              coating system known as Exterior Insulation and Finish System (EIFS) in lieu of
              stucco" (app. br. at 308).
                                                 72
        161. In its brief PE, continues to argue that as the design-build contractor it
 should have the unilateral right to make EIFS design changes: "Meanwhile, the delay
 continued, and [PE] continued to invest staff time in trying to get approval of a design
 correction that it should have had unilateral authority to implement under the design
 build contract" (app. br. at 310).

 Liquidated Damages

       162. By letter dated 27 December 2007 to PE, CO Brown stated the TLF and
 VQ were scheduled to be 100% complete on 27 December 2007 but were 82.1 % and
 73.4% complete respectively and the government would start assessing liquidated
 damages in the daily amount of $1,347 on 28 December 2007 (R4, tab 4079).

 Subcontractor Buyout Overruns

        163. Mr. Temchin explained that "subcontractor buy..:.out" is "the procurement of
the subcontract services required to complete Parsons' prime contract.... When we have
100 percent of all the subcontract services procured and under contract, then-our job is
bought out." (Tr. 2/177-78) The subcontractbids were not indefinite and most
subcontractors said if costs increased they would pass the costs on to PE (tr.,2/186-87).
According to Mr. Temchin, PE could not lock in fixed prices with the subcontractors
untjl the 100% design for construction was approved by the government:

                       So we needed the fixed scope of work to procure
               fixed price services from the subcontractors, because that
               was our methodology of controlling cost. Ifwe had a lump
               sum or a fixed price to do a piece of work and we had a
               scope of work, we held the subcontractor for that fixed
               price, so that they wouldn't embellish the job or try to
               overrun the job.

(Tr. 2/177) Mr. Temchin also testified, "So because we didn't have--- because the design
was broken into releases of little pieces of work, we never got to the full scope of the
vertical package until the final rel~ase in the end of June or early July [2006]" (tr. 2/178).

          164. Mr. Rosenfeld is a partner in the accounting firm the Sutor Group (tr. 9/7) and
  was recognized by the Board as an expert in construction cost accounting and_ claim
  calculations (tr. 9/8, 11 ). Mr. Tengler worked with Mr. Rosenfeld to calculate the
  subcontract buyout claim (tr. 9/125). The buyout claim is summarized in two spreadsheets
  in Rule 4, tab 3003 at 198-99 and tab 3009 (tr. 9/147, 150). These summaries have similar
  columns, however, Rule 4, tab 3009, has the column "Government Buyout Overrun" that
  explains the claimed amount of $4,068,497, so we use tab 3009. The subcontractors are
· listed in column 1. Column 6, "Original Subcontract" lists the "initial subcontract
  agreements with each one of these subcontractors" (tr. 9/147-48). Column 5, "Date" was

                                             73
not explained during the hearing or in PE's briefs. Since the "Date" column is adjacent to
the "Original Subcontract" column we interpret it to be the date of the "Original
Subcontract." There are no other dates on the spreadsheet and since the dates range from
31 October 2005 (Giberson2 (earthwork)) to 9 October 2008 (Giberson Plumbing (Finish
Carpentry)) we interpret these to be the original buyout dates. A rough count indicates
buyouts by year as: 3 in 2005, 16 in 2006, 17 in 2007 and 9 in 2008 (R4, tab 3009).
Column 7, "MODS Re: Original Scope" list the amount of modifications to the original
subcontract scope (tr. 9/148). Column 8, "Adjust. Base Subcontract" is the sum of
columns 6 and 7. Column 9, "Estimate Amount" is PE's original price estimates included
in its bid based on subcontractor's bids. (Tr. 9/143) Column 11 is the difference between
the adjusted original subcontract and PE's estimate (bid) or the overrun that PE then
assigns responsibility for, either to the government or PE or it splits responsibility.

         165. The record includes the following actual _dates for design drawings:

 R4, tab TLFNQ                        %                        PAGES          DATE
  1748 TLF              65%/100% FOOTING &                     83         14 NOV 05
                        FOUNDATION REVIEW SET
  1749      VQ          65%/100% CIVIL/STRUCTURAL              105        14 NOV 05
                        FOR REVIEW
 1750       TLF         65%/100% CIVIL/STRUCTURAL              30         17 APR 06
                        FOR CONSTRUCTION
 1751       VQ        · 65%/100% CIVIL STRUCTURAL              32        27 APR 06
 1752       TLF         95%                                    97        17 MAY 06
 1753       VQ          95%·                                   130       17MAY06·
 1754       TLF         100% FOR CONSTRUCTION                  109       24 JUL 06
 1755       VQ          100% FOR CONSTRUCTION                  140       24 JUL 06

        166. At the hearing Mr. Temchin explained that three major earthwork delays
(unsuitable fill, organic soil, and asbestos pipe) had "a significant negative effect in our
ability to buy-out the packages" (tr. 2/179). He testified:

                       That six months ... precluded us from buying out the
               contracts, because although we had a scope of work, we
               didn't have a schedule as to when we could start
               construction again. Without the schedule, we couldn't lock
               in the contract.

(Tr. 2/179-80) Mr. Temchin also testified thatcosts escalated due to Hurricane Katrina and
demand for material from China (tr. 2/181). The AF' s expert, Mr. Rushing, was accepted by
the Board as an expert in design-build, design-build-plus and design-build-plus-3 used by the
AF (tr. 18/112). Mr. Rushing, wrote in his expert report that in 2004-2005 the construction



                                             74
industry ''was experiencing a significant amount of escalation in both materials and labor
costs" (tr. 18/113; R4, tab 1449 at 8).

Subcontract Change Orders Paid ($5,672,525)

        167. This aspect of PE's claim is based on a review of subcontract change orders
by Mr. Rosenfeld and Mr. Cardinale. They went "change order by change order" for
every subcontractor and allocated responsibility between PE and the AF. The results of
their effort are reported on spreadsheets. (Tr. 5/146, 9/153; R4, tab 3003 at 203-212,
tab 3010) PE chose not to present detailed testimony at the hearing on each of the 118
changes allocated to the AF 74 (app. br. at 262-64). PE characterized the changes in six
categories as follows:

                1. Design & Other Changes_- The largest category
                   ($3,316,701) aHocated to Air Force, which is typically
                   related to constructive changes that affected either scope
                   of the required work. (Attachment 3)

               2. Unanticipated Overtime - Constructive Acceleration
                   - The next category ($628,599) represents charges by
                   subcontractors who were required to incur premium
                   wages for extended hours or work weeks to mitigate
                   delays arising primarily from differing site conditions but
                 · also from the other delays alleged in this appeal.

               3.· Trade Stacking-The third category ($164,093)
                   includes change orders paid to compensate
                 · subcontractors for increased crew sizes and congestion
                   that occurred when the project was constructively
                   accelerated.

               4. Unplanned Winter Work-The fourth category
                  ($354,032) includes- a change orders paid to cover costs
                  of unplanned winter work in the 2007-08 season (when
                  the buildings were reasonably planned to be complete or
                  at least fully enclosed and hooked up to the permanent
                  heating system). (Attachment 3)



74
     Consequently, absent extensive testimony, we have examined the documentary
        record along with such testimony as was presented and determine the changes
        and costs claimed that have been proven by PE. The results are presented in
        tabular form, by category, with reference to the record evidence we rely on.
                                             75
                   5. Delay Resulting from Differing Site Conditions - The
                      fifth category ($1,126,815) includes change orders
                      compensating subcontractors for delay and/ or
                    ) prolongation ·of work due to the differing site conditions
                      and other claimed delays.

                   6. Delay Related Increases in Material Costs - The last
                      category ($81,285) includes change orders paid to four
                      subcontractors for (delay-related) increases in material
                      costs. Again, the claimed subcontract change order
                      payments have been extracted from a substantially larger
                      pool of subcontract change orders, many of which
                      Parsons allocated to its own account (as shown in R4, tab
                      3003 at 203 et seq.)_

    (App. br. at 264; ex. A-10) We do not accept these categories as proof of what work
    was actually done for each change order. Testimony about the change orders is cryptic
    and generally of little use. To the extent the record includes actual work "tickets" for
    each change order, PE fails to cite us to those documents.

             168. In its brief PE addresses each change by contractor in alphabetical order. 75
    We fook at each change order and supporting material. We list them by category
    number addressing all Category 1 change orders first etc. We consider if the change
    order should be the responsibility of PE and if so will indicate "Deny." An example of
    this is where the change order is caused by changes to the 35% or 65% design to reach
    the 100% design. Except for costs associated with progressive collapse, PE is
    responsible for completing the design. Next, we look to see if the record supports AF
                                                1

    liability and if so we indicate "Agree." An example of this is costs incurred for winter
    heat. If there is a question about the documentary evidence and there is no testimony to
    clear it up, we indicate that we find a failure of proof (FOP). So, for each change order
    we will annotate "Deny" meaning the AF is not liable, "Agree" meaning the AF is
    liable, or "FOP" meaning we are not sure and PE did not satisfy its burden of proof, i.e.,
    AF not liable.                                   ·




    75
·        We consider this approach to be essentially a record submission, with some
            supporting testimony.

                                                76
 Category           Contractor        Change       Amount[76 1           Comments
                     \
                                       Order
                                      (CO)#
       1      ABJ Sprinkler              5           $43,893 Agree: CO signed, no comment
                                                             from AF, acceleration (R4, 3194
                                                             atS-16).
       1      American Masonry-2         9          $115,655 Deny: 65% to 100% design
                                                             change is PE responsibility
                                                             (gov't br. at 317-18; R4, tab
                                                             3204 at 3).
       1      B&S Sheet Metal           14           $63,836 Agree: Latent defect in 35%
                                                             design (size of toilets, R4, tab
                                                             1216, tab 1746 at ID-203, -204),
                                                             no AF testimony (R4; tab 3208).
       1      Black Horse Pike           3           $10,600 Agree: Acceleration, latent
              Plumbing                                       defect, see B&S. (R4, tab 3261).
       1      Eastern Cqnstruction      2 I         $12,500 Deny: See decision on differing
                                                             site conditions, DC#9 - manhole.
       1      Eastern Construction·      6           $12,000 FOP: No testimony (~4, tab
                                                             3215 at 9-10).
       1      ERCO                       1            $8,571 Agree: CO dated after 100%
                                                             design, No comment from AF
                                                             (R4, DVD tab 3286 at PDF 1)
       1      ERCO                      2             $5,940 Agree: CO dated after 100%
                                                             design, no comment from AF
                                                             (R4, tab 3286 at 3).
       1      Gaudelli Brothers-2"      3            $36,700 Agree: No comment from AF,
                                                             see decision on structural brick
                                                             (R4, tab 3217 at 1).
       1      Giberson Plumbing         3            $13,650 FOP: Complete design from
              & Excavating-2                                 35% to 100%, no testimony.
                                                             (R4, tab 3228 at 1-10).
       1      Giberson Plumbing         4            $41,008 Agree: Testimony re differing
              & Excavating-2                                 site condition, no comment from
                                                             AF (R4, tab 3228 at 11; tr.
                                                             18/173-74).




76
     The amounts are those listed in PE's brief and may differ from the amounts on the
        change orders (app. br. at 266-88).


                                              77
       1       Giberson Plumbing          5            $2,578 Agree: Differing site condition, ·
               & Excavating-2                                 no comment from AF (R4, tab
                                                              3228 at 12).
       1      Giberson Plumbing           6          $114,700 FOP:[77 1 No testimony (R4, tab
              & Excavating-2                                  3228 at 13-27).
       1      Giberson Plumbing           7            $5,224 FOP: No testimony, change to
              & Excavating-2                                  "required grade" (R4, tab 3228
                                                              at 28).
       1      Giberson Plumbing           8        $ 130,643 Agree: CO dated after 100%
              & Excavating-2                                  design approval on 6 July
                                                              shopping list, no testimony (R4,
                                                              tab 3228 at 30).
       1      Giberson Plumbing          10           $17,586 FOP: Requirement of 100%
              & Excavating-2                                  design, no testimony (R4, tab
                                                              3228 at 35-37).
       1      Giberson Plumbing          11         ($36,878) Agreed: Deductive CO (R4, tab
              & Excavating-2                                  3228 at 39).
       1      Giberson Plumbing          14            $3,727 FOP: Requirement of 100%
              & Excavating-2                                  design, no testimony (R4,
                                                              tab 3228 at 41).
       1      Giberson Plumbing          20            $9,000 Agree: Continual draining
              & Excavating-2                                  change, no comment from AF
                                                              (R4, tab 3228 at 55-58).
       1      Giberson Plumbing          22           $11,725 FOP: Concrete pavers shown
              & Excavating-2                                  on VQ 100% A-402, no
                                                              testimony (R4, tab 3228 at 5967)
       1      Giberson Plumbing          24           $10,000 FOP: Shopping list not on CO
              & Excavating-2                                  24, no testimony, Mod. 5 in
                                                              2008 (R4, tab 3228 at 69).
       1      Kepple's Carpet             4           $42,500 Deny: PE responsible for
                                                              mistake in 100% design (R4, tab
                                                              3234 at 7).
      1/2     Kepple's Carpet             7           $15,941 FOP: No testimony explaining
                                                              supporting documents and
                                                              liability (R4, tab 3234 at 10-17).


77
     The AF's brief (gov't br. at 288-90) and PE's reply brief (app. reply br. at 217-18)
        discussed change order No. 6 in some detail. RFP 8234 required at least six
        inches of "Compacted Graded Aggregate Base Course" under pavement (R4,
        tab 2 at 698, 819). PE does not explain how the "dense graded aggregate" in
        change order No. 6 is a change to what was required nor doe·s it refer us to the
         100% design in support of its claim. ·


                                              78
       1      KRN Painting- I           1        ($12,700)     Agree: Credit (R4, tab 3257 at
                                                               32).
       1      KRN Painting- I           6          $5,944      Agree: No comment by AF/not
                                                               warranty (R4, tab 3257 at 84).
       1      Miller Metal Fab.         3        $110,480      FOP:[78 l Mod for both VQ &
                                                               TLF, no progressive collapse in
                                                             · TLF, no testimony on this point
                                                               (R4, tab 3236 at 1).
       1      Miller Metal Fab.         8         $22,577      Agreed: Structure required to
                                                               account for progressive collapse
                                                               interfered with catwalk (R4, tab
                                                               21 at 70, tab 3235 at 1, 9-10).
       1      NIC Construction-I       20         $15,930      Agreed: Accelerated constr.,
                                                               winter (R4, tab 3238 at 1).
       1      NIC Construction-2       18         $23,634      FOP: No proof CO related to
                                                               progressive collapse, no
                                                               testimony (R4, tab 3238 at 7-8).
       1      NIC Construction-2       21         $14,888      FOP: No proof CO related to
                                                               progressive collapse, no
                                                               testimony (R4, tab 3238 at 12-
                                                                13)
      1/2     Prime Design- I          2          $32,620      FOP: Design changes ($25,340)
                                                               Agreed: Acceleration, no
                                                               comment from AF ($7,280) (R4,
                                                               tab 3251 at 1).
       1      RC Fabricators-I          1         $65,500      Deny: Mod 5 paid for shopping
                                                               list w/release, "no cost" email
                                                               (R4, tab 1665 at 3, tab 7E; see
                                                               gov't br. at 301).
       1      RC Fabricators-I         5          $39,000      FOP: (See gov't br. at 303-10).
       1      RC Fabricators-2         1          $35,660      FOP: No testimony (R4, tab
                                                               3255 at 57).
       1      Ridgeline-1               1        $377,946      FOP: Trusses for TLF, PE cites
                                                               progressive collapse in CO
                                                               justification (app. br. at 280).
                                                               Progressive G_ollapse not relevant


78
     We have found that PE may recover for modifying the 35% VQ design to account for
         progressive collapse. However, this CO refers to a "design change to the shear
         wall connection details at both the VQ and TLF" (R4, tab 3236 at 1).
       · Progressive collapse does not apply to the TLF. PE failed to explain how this
         was related to progressive collapse at the VQ and therefore we find a FOP.


                                            79
                                                                 to TLF. Changes from 65% to
                                                                 100% PE's responsibility (R4,
                                                                 tab 3185 at 1).
       1      Ridgeline-2              1[79]         $350,899    Agree: Trusses for VQ, we infer
                                                                 that they relate to addressing
                                                                 progressive collapse (R4, tab
                                                                 3185 at 48).
       1      Robert Haas                1             $4,625    FOP:[ 80 1 No testimony (R4, tab
                                                                 4281atl).
       1      Roger Appliances          3             $24,020    FOP: No testimony on stacked
                                                                 models (R4, tab 3262 at 5).
       1      Roger Appliances          4             $15,079    FOP: Documents indicate
                                                                 violation of Buy America Act,
                                                                 no testimony (R4, tab 3262 at 9,
                                                                 tabs 4100, 4104, 4107, 4112).
       1      S&C Construction- I       2              $1,851    Agree: AF liable for unsuitable
                                                                 fill (R4, tab 3266 at 1).
       1      Schindler Elevator        5              $5,092    FOP: No testimony, documents
                                                                 do not support stated reason (R4,
                                                                 tab 3270 at 29-33).
       1      Sodon's Electric          4              $6,775    Agree: Organic layer differing
               '                                                 site cond. (R4, tab 3276 at 1-11).
       1      Sodon's Electric          9           $1,378,000   Deny: See discussion at end of
                                                                 table.
       1      Sodon's Electric          15            $21,149    Agree: differing site condition
                                                                 (R4, tab 3276 at 131-38).
       1      Sodon' s Electric         24             $8,322    Agree: $2,522 winter heat. FOP
                                                                 $5,800 notestimony (R4, tab
                   /

                                                                 3276 at 161).
       1      Sodon's Electric          30            $15,950    FOP: Documents vague, No
                                                                 testimony (R4, tab 3276 at 180).
       1      Sodon' s Electric         32            $70,000    FOP: Documents vague, No
                                                                 testimony (R4, tab 3276 at 206).
       1      Wei Tee                    1            $15,987    FOP: No testimony (R4, tab
                                                                 3273 at 3) ..
       2      Gaudelli Brothers-3       6              $7,653    Denied: No testimony, see
                                                                 decision on differing site


79
     The copy in the record is unsigned, but the AF does not contend it was never signed.
80
     We found the AF liable for the underground detention system and if this were proven
        to be part of that effort we would have agreed with it, however, nothing on the
        face of Haas change order No. 1 refers to the underground system and there is no
        sworn testimony supporting PE's characterization.
                                               80
                                                     conditions, DC #9 - manhole 35
                                                     (R4, tab 3217 at 12).
     2   ABJ Sprinkler        3          $35,658     Agree: No comment from AF,
                                                     acceleration (R4, 3194 at 1-4 ).
     2   American Masonry-2   11         $56,374    Agree: No comment from AF,
                                                     acceleration (R4, tab 3204 at 4).
     2   American Masonry-2   12        $6,313.38   Agree: No comment from AF,
                                                     acceleration (R4, tab 3204 at
                                                     5-6).
     2   Cardinal Paving- I   4          $62,669    Agree: Testimony/acceleration
-·
                                                     (app. br. at 467), no comment
                                                    from AF (R4, tab 3212 at 4-12) ..
     2   Kepple's Carpet      1          $34,500    Agree: Acceleration, no
                                                    comment from AF (R4, tab 3234
                                                    at 1).
     2   Kepple's Carpet      2           $1,035    Agree: Acceleration, no
                                                    comment from AF (R4, tab 3234
                                                    at 2).
     2   Kepple's Carpet      6          $40,000    Agree: Acceleration, no
                                                    comment from AF (R4, tab 3234
                                                     at 9).
     2   Kepple's Carpet      10          $6,695    Agree: Acceleration, no
                                                    comment from AF (R4, tab 3234
                                                    ·at 18).
     2   Kepple's Carpet      11         $34,089    Agree: Acceleration, no
                                                    comment from AF (R4, tab 3234
                                                    at 22).
     2   _KRN Painting-2      2           $1,600    Agree: Acceleration, no
                                                    comment from AF (R4, tab 3257
                                                    at 1-5).
     2   KRN Painting-2       4          $13,490    Agree: Acceleration, no
                                                    comment from AF (R4, tab 3257
                                                    at 6, 8, 11).
     2   KRN Painting-2       5           $7,330    Agree: Acceleration, no
                                                    co111ment from AF (R4, tab 3257
                                                    at 18, 21, 23).
     2   KRN Painting-I       4           $2,700    Agree: Acceleration, no
                                                    comment from AF (R4, tab 3257
                                                    at 74, 78).
     2   NIC Construction-2   19         $20,000 Agree: Acceleration, no
                                                 comment from AF (R4, tab 1238
                                                 at 9).


                                   81
2   Oldcastle Precast      1           $12,500 Agree: Acceleration, no
                                               comment from AF (R4, tab 3250
                                               at 1).
                                               Agree: Acceleration, no
2   Pillar Construction    3
                                     - $20,000 comment    from AF (R4, tab 3258
                                               at 21).
2   Pillar Construction    6           $30,000 Agree: Acceleration, no
                                               comment from AF (R4, tab 3258
                                               at 33).
2   Pillar Construction    7           $42,303 Denied: See decision denying
                                               EIFS claim.
2   .Pillar Construction   8           $17,962 Denied: See decision denying
                                               EIFS claim.
2   Prime Design- I        3           $67,061 Agree: Acceleration, no
                                               comment from AF (R4, tab 3251
                                               at 3).
2   Prime Design- I        6           $18,750 Agree: Acceleration, no
                                               comment from AF (R4, tab 3251
                                               at 6).
2   Prime Design-2         1           $20,865 Agree: Acceleration, no
                                               comment frorn·AF (R4, tab 3251
                                               at 8).
2   S&C Construction-2     19          $34,077 Agree:   Acceleration, no
                                               comment from AF (R4, tab 3266
                                               at 8).
2   Sod on' s Electric     27             $787 Agree: Winter heat (R4, tab
                                               3276 at 175).
2   Sodon' s Electric      31          $16,300 Agree: $16,128 (reduced in
                                               brief) Acceleration (R4, tab 3276
                                               at 184).
3   Black Horse Pike       11          $18,298 Agree: No comment from AF,
    Plumbing                                   acceleration (R4, DVD tab 3261
                                               at PDF 3)
3   NIC Construction-2     11           $6,080 Agree: Acceleration, trade
                                               stacking, no comment from AF
                                               (R4, tab 3238 at 3).
3   Prime Design- I        5          $164,093 Deny: Punch list item
                                               ($119,662.80); FOP: See gov't
                                               br. at 310-11 ($44,429.99) (R4,
                                               tab 3251 at 4-5).
4   ABJ Sprinkl~r          8            $1,732 FOP: CO unsigned, no
                                               testimony, no invoice (R4, tab
                                               3194 at 17-20).

                                82
       4      American Masonry-2         3            $4,003 Agree: No comment from AF
                                                             (R4, tab 3204 at 1).
       4      Eastern Construction       1            $7,916 FOP: CO appears to be
                                                             permanent installation, not
                                                             temporary, no testimony (R4, tab
                                                             3215 at 1).
       4      Giberson Plumbing          26         $30,000 Agree: Re~et cmty. sign due to
              & Excavating-2                                 differing site cond./acceleration/
                                                             snow removal (R4, tab 3228 at
                                                             71-75; tr. 6/105-06).
       4      Giberson Plumbing         27          $48,000 Agree: Acceleration/snow
              & Excavating-2                                 removal (R4, tab 3228 at 76;
                                                             tr. 6/106-07).
       4      Giberson Plumbing         28          $50,000 Agree: Acceleration/snow
              & Excavating-2                                 removal (R4, tab 3228 at 77;
                                                             tr. 6/107).
       4      Giberson Plumbing         29          $50,000 Agree: Acceleration/snow
              & Excavating-2                                 removal (R4, tab 3228 at 78;
                                                             tr. 6/108-09) ..
       4      Kepple's Carpet            3            $1,530 Agree: Acceleration, no
                                                             comment from AF (R4, tab 3234
                                                             at 3).
       4      Kepple's Carpet            5            $3,315 Agree: Acceleration, no
                                                             comment from AF (R4, tab 3234
                                                             at 8).
       4      NIC Construction-2         15         $36,120 Agree: Acceleration, no
                                                             comment from AF (R4, tab 3238
                                                             at 5).
       4      Pillar Construction        1         $150,600 Denied: See decision denying
                                                             EIFS claim.
       4      Pillar Construction        5          $80,802 Denied:[ 81 l See decision denying
                                                             EIFS claim.
       4      S&C Construction-2         13          $6,963 Agree: AF delay (R4; tab 3266
                                                             at 6).
       4      S&C Construction-2         14         $10,000 Agree: AF delay (R4, tab 3266
                                                             at 7).
      4/2     Sodon's Electric           16           $5,309 Agree: Winter heat (R4, tab
                                                             3276 at 139).
       4      Sodon's Electric          21            $6,272 Agree: Winter heat (R4, tab
                                                             3276 at 146).

81
     This is a credit to change order No. 1. Since change order No. I was denied, this
         credit will not be available to the AF.
                                              83
     4      Sodon' s Electric          22                $6;647 Agree: Winter heat (R4, tab
                                                                3276 at 149).
     5      Giberson Plumbing         16(82]          $150,000 FOPl 83 1: Nature of work not
            & Excavating-2                          ($142,800 explained, insufficient
                                                    site work   testimony. Agree: $7200 grass
                                                    + $7,200 . cutting caused by compensable
                                                    lawn        delay (R4, tab 3228 at 43).
                                                    cutting)
     5      Giberson Plumbing          17             $150,000 Agree: We agree that temporary
            & Excavating-2                                      windows were required to
                                                                enclose buildings during winter
                                                                acceleration (R4, tab 3228 at 54;
                                                                tr. 6/102).
     5.     Giberson Plumbing          21               $30,000 FOP: No testimony/no evidence
            & Excavating-2                                      of actual work/lawn mowing not
                                                                separately identified (R4, tab
                                                                3228 at 58).
     5      Giberson Plumbing          23               $40,000 FOP: No testimony/no evidence
            & Excavating-2                                      of actual work/lawn mowing not


82 PE lists change order Nos. 16, 17, 21, 23, 25, 30, 31, 34, 35, and 36 together as
       category 5 changes resulting from differing site condition delays. There is very
       little discussion of the individual changes and PE points to its hearing exhibits 7
       and 8 in support for its claims. Exhibit 7 consists of 274 pages of cost documents
       that have no obvious relationship to individual change orders. Mr. Temchin
       testified there was a "ticket" for every dollar Giberson spent (tr. 6/145) but PE
       fails to direct the Board's attention to these individual documents, if they are in
       exhibit 7, that support each change order. Without ~uch assistance from PE, we
       find hearing exhibit 7 essentially useless. We also note that PE's hearing exhibit
       8, which it explains is a summary of Giberson invoices identified all but one of
      the payments to Giberson as "earthwork" which is not explained. The meager
      testimony presented on these change orders does not assist us. Without some
       documentary evidence of what work these change orders funded that persuades us
      that they are caused by the compensable delays we indicate FOP.
83 While Mr. Shockley testified that change order No. 16 was caused by the earlier
      deiays (tr. 6/101) he failed to go into any detail. We agree there is compensable
      delay, however, we see that the majority of the work was hauling fill dirt off base
      with some bringing DGA (stone) onto the site (R4, tab 3228 at 43-53). These
      documents do not square with the testimony. This work does not appear to us to
      be caused by the delay as opposed to work needed to complete the job. PE fails
      to explain how hauling off dirt is caused by acceleration. We agree that
      additional grass cutting is the type of work caused by the delay.

                                               84
                                                              separately identified (R4,
                                                              tab 3228 at 68).
     5      Giberson Plumbing          25           $25,000   FOP: No testimony/no evidence
            & Excavating-2                                    of actual work/lawn mowing not
                                                              separately identified (R4,
                                                              tab 3228 at 70).
     5      Giberson Plumbing        30£84]        $100,000   Deny: Punch list items (R4,
            & Excavating-2                                    tab 3228 at 79).
     5      Giberson Plumbing          31           $50,000   Deny: Punch list items (R4,
            & Excavating-2                                    tab 3228 at 80).
     5      Giberson Plumbing          34           $15,000   Deny: Punch list items (R4,
            & Excavating-2                                    tab 3228 at 81 ).
     5      Giberson Plumbing          35           $10,000   Deny: Punch list items (R4,
            & Excavating-2                                    tab 3228 at 82).
     5      Giberson Plumbing          36           $15,000   Deny: Punch list items (R4,
            & Excavating-2                                    tab 3228 at 84 ).
     5      Pillar Construction        4           $107,389   FOP: No testimony, PE failed
                                                              to prove this delay was not
                                                              related to EFIS, EFIS claim
                                                              denied
     5      Roger Appliances            1           $21,903   Deny: See buyout decision, no
                                                              testimony (R4, tab 3262 at 1).
     5      Schindler Elevator         2            $22,500   FOP: No testimony why AF
                                                              liable for operators to move
                                                              material (R4, tab 3270 at 1-18).
     5      Schindler Elevator         3             $7,200   FOP: No testimony why AF
                                                              liable for operators to move
                                                              material/appliances (R4,
                                                              tab 3270 at 19-28).
     5      Schindler Elevator         6             $1,200   FOP: No testimony why AF
                                                              liable for operators for "hatch
                     -                                        work" (R4, tab.3270 at 34-38).


84 We accept Mr. Temchin's testimony (tr. 6/137-39) that change orders to Giberson
      starting in about April 2008 were needed to deal with punch list items. However,
      these change orders pay for the correction of punch list items and PE has not
      objected to the accuracy of the individual punch list items (tr. 5/174, 176; app. br.
      at 336). PE objects to the 28 inspections and time it took to get to beneficial
      odcupancy date (BOD). As discussed herein, we agree with PE and find
      compensable delay associated with the inspections, but we do not agree to
      compensate PE for correcting the punch list items it does not challenge. Therefore,
      we deny the Category 5 change orders s that corrected punch list items.

                                              85
        5      Sodon' s Electric          7           $86,630 FOP:[ 85 1No testimony,
                                                              inconsistent and confusing
                                                              justification (R4, tab 3276 at
                                                               12-14).
        5      .Sodon's Electric          23        $123,989 Agree:[ 86 1Caused by differing
                                                              site conditions delay (R4, tab .
                                                              3276 at 155). ·
        5      Sodon's Electric.          26          $53,559 Agree: . See CO 23 (R4,
                                                              tab 3276 at 171).
        5      Sodon's Electric           29          $57,350 Agree: See CO 23 (R4,
                                                              tab 3276 at 178).
        5      Sodon's Electric           30          $63,700 Agree: Differing site conditions
                                                              delay (R4, tab 3276 at 180).
        6      Cardinal Paving- I         2           $34,657 Deny: See buyout decision[ 87 l
                                                              (R4, tab 3212 at 1).
        6       Giberson Plumbing         37         ($9,648) Agree: Credit (R4, tab 3228 at
              · & Excavating-2                                85).
       6/1      Glass Artistry             1          $47,501 Deny: 35% to 100% design
                                                              responsibility of PE, See
                                                              contract buyout decision on price
                                                              escalation, testimony insufficient
                                                              (R4, tab 3231).

  Concerning CO #9 (Sodon), we looked very closely at the solid brass bathroom light fixture
. portion of change order No. 9. The VQ 35% Architectural drawings specified "VANITY
  LIGHT RE: CID PACKAGE (VL-1)" and recessed lighting in the bathrooms (R4, tab 1746
  at A-401). The VQ 35% Electrical drawings specified "C - Incandescent Vanity Wall
  Fixture" (id. at E-101). The 35% drawings did not specify a specific fixture. The AF's

 85
      The problem with this claim is that PE calculated the $188,370 it "took responsibility
         for" using a daily rate of $1,495 for Mod. 2 for 126 days not actual costs. We do
         not know where this daily rate came from, the LD rate is $1,347. We could
         substitute the correct LD rate, but we do not know why using the LD rate is
         logical. Also, Mod. 2 was for the structural brick delay not differing site
         conditions. PE then allocate~ the remaining actual costs to the AF. The stated
         reason for change order No. 7 was the cost of extending performance to
         27 December 2007 which was done by Mod. 3 not Mod. 2. Even if we agreed
         that Sodon's was entitled to some amount for extended performance, this method
         of quantification is completely unexplained and therefore unreliable.
 86
      Even though Mod. 23 refers to Mod. 7 which we found FOP, we understand it and
         rely on Mr. Chavan's testimony to agree.
 87
      Both Cardinal Paving I & 2 were bought-out on 14 May 2007 (R4, tab 3009 at 1).
         Therefore we are unable to determine if the escalation costs were caused by the
         delayed buyout or by compensable delay.
                                               86
   failure to include the VQ CID in RFP 8234 allowed Sodon's Electric to formulate its bid
   based on best commercial practices (tr. 5/163-64) which we find it did. The VQ 100% For
   Construction Architectural drawings likewise specified "VANITY LIGHT RE: CID
   PACKAGE (VL-1 )" (no manufacture model number) and recessed lighting in the
   bathrooms (R4, tab 1755 at A-401). The 100% For Construction Electrical drawings,
   developed by Morris Johnson & Associates (MJA); specified Nessen brushed brass/white
   frosted glass vanity light (NA W535-0B) in the VQ, the same fixture specified in the TLF
   CID (R4, tab 1755 at E-01, E-08, tab 2 at 33, item 29). The only other lights in the
   bathrooms were a heat lamp and fluorescent lights (R4, tab 1755 at E-01, E-08). The
   specification sheet for the Nessen fixtur.e in the TLF CID does not say solid brass (R4, tab 2
 · at 67). If it is solid brass then it was required by the VQ 100% For Construction drawings,
   however, it was also a change to Sodon's bid. Importantly, we see no evidence that the AF
   was involved in the identifi.cation of the Nessen fixture; The only document PE points to as
   proof of an AF constructive change supporting its claim is a "VQ finish schedule" dated
   9 February 2004 that PE says was "belatedly issued on or about December 15, 2006 (R4,
   tab 877 at 13 & 14)" (app. br. at 284). The problem with that document is that the only
   fixture priced over $400.00 is the Meltemi Wall Sconce but the quantity is only nine and
   they are not used in the bathrooms (R4, tab 1746 at A-104, tab 1755 at E-01, E-08). It does
   list the VL-1 Challenger bathroom vanity lights having a unit price of $96.09 and a quantity
   of 350 (R4, tab 877 at 13). None of this is explained by PE. We find that the VQ 100%
   For Construction drawings required the Nessen vanity light because that is identified on
   drawing E-01. We have no idea if that fixture is solid brass or not. Mr. Dukes wrote a
   memo explaining Sodon's change order No. 9 and stated that the MJA in the 100% for
   construction design specified solid brass light fixtures in the bathrooms costing $440.00
   each resulting in an increase in $450,000 over Sodon's bid (R4, tab 1044 at 13). This
   doesn't square with the $96.09 Challenger fixture in the finish schedule PE points us to.
  Mr. Temchin explained that since there was no CID for the VQ they '"just took what was
  specified from the TLF and moved it over to the VQ" (tr. 5/218). Based on the VQ 35%
   drawings Sodon had the right to bid based on commercial practice. If the Nessen fixture is
   solid brass it was a change to the fixture Sodon bid. PE would have to prove the AF
   somehow directed that change. We are sympathetic to the solid brass fixture claim but
   cannot find evidence of AF involvement and if there is PE-failed to clearly guide us to that
  evidence. We cannot hold the AF responsible for the brass fixture claim without evidence
  that the AF directed the change. We see no evidence that the AF was ever given a chance
  to agree to accept the fixtures Sodon bid or pay more for solid brass fixtures. As Mr. Dukes
  said in his memo "In essence, PIE passed along all the risk of increases in the cost of
  building the project to the subcontractor [Sodon], witho:ut promise of equitable adjustment"
  (R4, tab 1044 at 13). We are mindful that the AF's error in failing to include the VQ CID
  in the RFP contributed to this problem, but we cannot hold the AF ultimately liable without
, more. As for the over-designed transformer, we are confused aboufthe fact that it appears
  to be in change order No. 9 (app. br. at.283) but there is also a $412,656 "credit" for it that
  was "removed from the claim" (app. reply br. at 222). All of the remaining changes
  discussed are requirements of the 35% to 100% design effort. Therefore, we deny change


                                              87
order No. 9. The total in "agreed" change orders is $2,068,652. Subtracting $59,226 in
"credits" results in a total of $2,009,426.

Winter Work Costs - HTHW

       169. PE includes this section as part of the Subcontractor Change Order section
(app. br. at 289-94). It claims generally that it was delayed by the AF's untimely     ·
approvals of submittals, the differing site conditions encountered when installing the
HTHW pipe, and the fact that PE assumed it would be allowed to use the HTHW
system to heat the buildings. The HTHW differing site condition is discussed earlier in·
PE's brief in great detail (app. br. at 195-221). We agreed that it was appropriate to
approve subcontractor change orders relating to providing winter heat.

Extra Work Coded During Project ($2,593,064)

      170. PE presents nine categories of costs under the umbrella description "Extra
Work Coded During Project":

          Category                        Cost Code              Payment
       1. Claim Preparation       R4, tab 3003 at 179          $1,840,112
       2. Response to Cure Notices              1704              $71,015 ·
       3. Delays in Issuance ofNTPs            20030              $63,021
       4. Tiger Team Recovery Efforts          20070             $230,342
       5. Increase Mgmt. of Acceleration       20050             $107,181
       6. Preparation of Revisions to REAs , 20120                $51,695
       7. Extra Warranty Work                   1990             $154,918
       8. Response to Noise Level C.oncerns· 20140                $72,500
       9. Miscellaneous other Work                                 $2,280
                     Total:                                    $2,593,064

(App. br. at 314)

       171. PE includes a short explanation for each category in its brief. Except for
the noise claim, the record supporting these claims is sparse. Claim Preparation:

             1. Claim Preparation: The largest component in this claim
                category is $1,840,112 in claim preparation costs incurred
                before Appellant's claim was certified and submitted to
                the Contracting Officer on June 29, 2012. The
                reasonableness of those costs was never challenged in this
                appeal, and their award is authorized pursuant to FAR
                31.205-33.

(App. br. at 314)

                                           88
       172. Response to Cure Notices:

             2. Response to Cure Notices: The second item cost of
                $71,015 was coded costs associated with responding to
                Air Force cure notices, which were primarily based on
                complaints that Parsons was falling behind schedule or
                failing to provide "shopping list" pricing fast enough.
                Appellant believes such complaints were unreasonable,
                because the Air Force was asking Parsons to bear the
                costs of making up for delays that were excusable under
                the contract (e.g., associated with admitted differing site
                conditions or with documented Government delays).

(App. br. at 314)

       173. Delays in Issuance ofNTPs:

             3. Delays in Issuance of NTPs: The third coded cost was
                $63,021 arising from delays in the Air Force's issuance of
                notices to proceed for construction. As discussed
                elsewhere in this brief, the Air Force should have issued a
                full NTP for construction promptly after Parsons
                submitted drawings that incorporated the Government's
                comments on the 95% design (mid-April 2006), but that
                NTP was in fact delayed until almost mid-July of that
                year.

(App. br. at 314)

       174. "Ti~er Team" Recovery Efforts:

              4. "Tiger Team" Recovery. Efforts: The next coded extra
                  work cost of $230,342 is for the "Tiger Team" that was
                  brought in by Parsons to handle rescheduling,
                  acceleration, and other added management required to
                  deal with major excusable project delays, unreasonable
                  cure notices, and their many disruptive effects on the
                  orderly administration of the TLFNQ project. Neither
                  the DCAA nor the Air Force hearing witnesses
                  challenged the reasonableness of these costs.

(App. br. at 315)


                                            89
       175. Increased PE's Management of Acceleration:

             5. In~reased Parsons Management of Acceleration: The
                next coded extra work was Parsons' own cost in
                connection with acceleration ($107,181), which was in
                addition to the substantial costs that Parsons had to incur
                in paying change orders to accelerating subcontractors.
                This constructive acceleration arose from the Air Force's
                persistent cure notices (demanding faster completion)
                coupled with its failure to grant equitable time extensions
                for excusable delays, including the major earthwork
                differing site conditions for which the Air Force later
                admitted entitlement.

(App. br. at 314-15)

       176. Preparation of Revisions to REAs:

             6. Preparation of Revisions to REAs:. The next extra work
                item is $51,695 in costs to prepare the revised versions of
                REA's 4, 5 and 6 that were submitted to the Air Force in
                December 2008. ([S]e~ R4, tabs 1536, 1537 and 1538)
                Those costs were not questioned and should be allowed if
                the Board finds entitlement on these subjects.

(App. br. at 315)

       177. Extra Warranty Work:

             7. Extra Warranty Work: The next extra work item is
                $154,918 that were contemporaneously identified as
                "warranty" work that was not properly within Parsons'
                original scope and recorded under cost code O1990.

(App. br. at 315)

       178. Response to Noise Levels:

              8. Response to Noise [L]evel Concerns: The next extra
                · work item is $72,500, coded for extra work in attempting
                  to satisfy Air Force concerns about noise levels in TLF
                  Room 206. (see discussion below).



                                           90
(App. br. at 315). With respect to this issue, there is a mechanical room on the first floor
of the TLF and it is below a guest room (tr. 5/123). There are-two contract requirements
relating to sound transmission. TLF I 00% for construction drawing M-01 has the
following note:

              VIBRATION ISOLATION & SEISMIC RESTRAINTS

              AS DESCRIBED BELOW AND IN THE
              SPECIFICATION, MECHANICAL SYSTEMS SHALL BE
              INSTALLED WITH THE SEISMIC RESTRAINTS AND
              VIBRATION ISOLATORS TO PREVENT THE
              TRANSMISSION OF VIBRATION AND
              MECHANICALLY TRANSMITTED SOUND TO THE
              BUILDING STRUCTURE.

(R4, tab 1754, drawing M-01) Mr. Cochran testified that spring isolation was to be
provided for all vibrating mechanical equipment to reduce vibration through the
building (tr. 11/73; R4, tab 2 at 740, #121). The TLF design analysis includes a
requirement on acoustics:

              Careful attention to acoustic design is essential for lodging
              facilities to ensure a high degree of privacy for residents
              within their livirig units. Walls between units and corridors
              shall have a Sound Transmission Class (STC) of 55.
              Isolation of noise from a variety of sources must be
             .addressed, including adjacent living units, units on a floor
              level above or below, hallways, mechanical rooms and
              systems, service areas, employee areas, supply/delivery
              pick-up points, and externally generated soun·d such as
              aircraft and automobile noise.

(R4, tab 2 at 200)

        179. Mr. Rola was concerned about excessive noise from the mechanical room
in the guest quarters above. Mr. Cardinale testified that the "Base environmental folks
came in with a measuring device. They thought it was okay." (Tr. 5/122) However,
Mr. Rola also took a measurement of the noise in the room above the mechanical room
and was concerned that the noise level was too hig;h_ (tr. 5/123). In a 23 July 2008
internal email, Mr. Rola stated that the noise level in the room over the mechanical level
was "noticeably louder than in other rooms" and that PE "should have designed
soundproofing beneath this room." (R4, tab 4186 at I) Mr. Kissler, COR, responded, .
"it was not in Parsons['] contract to insulate the room [sic] mechanical room in the TLF
so we need to drop this issue" (id.). Mr. Rola continued to compla,in about the noise
level in the room above the mechanical room (R4, tab 4543). Finally after nine months

                                            91
, without complaints about noise in the room from residents, the issue was dropped
  (tr. 5/123). PE created a separate cost code for work on the mechanical room noise
  issue to which people working on this issue charged their time (tr. 4/121-22).

        180. Miscellaneous Other Work:

               8. Miscellaneous Other Work: There is also a
                  miscellaneous "extra work" account in which $2,280
                  was recorded.

 (App. br. at 315)

 Increased General Condition Costs
                     -
        181. PE's claim includes the following general condition costs (app. br. at 318-21 ):

                COST                 AMOUNT               CODE
    Office Labor                       $2,164,484            L
    i:;'ield Labor                       $157,397           FL
    wodging/Meals/Subsistence            $802,119            s
    rrotal Labor Items                 $3,124,000
    Legal (REA Prep)                         $430           A
    Office Expense/ODC's                 $156,387            0
    Sanitary Facilities                   $33,855           HB
    Final Cleaning                       $280,600           FC
    Equipment                            $146,388            E.
    rwinter Heat                         $493,196
    2nd Winter Fencing                     $27,153
    Office Trailer                        $37,185           OT
    Consulting                           $117,304           C
    Dumpsters                             $68,613           D
    Material                             $129,326           M
    Rounding                                    $1
    TOTAL                               $4,614,438

Added Costs Due To Rejection of "Structural Brick" Design ($1,906,401) ·

       182. In its brief PE states that the decision to use the 3 5% double wall design,
"forced Parsons and its structural engineers to develop a series of costly changes to

                                            92
other p_arts of the VQ building to support the (unnecessarily) heavy structure against
potential progressive collapse" (app. br. at 323). The $1,906,401 is derived from a 2014
estimate done by Mr. Tengler entitled, "Structural Brick in Lieu of Double Wythe
System -Total Cost Savings" (R4, tab 3154). Mr. Tengler testified he used "RSMeans
database" to calculate the savings (tr. 4/98).

Project Closeout

        183. PE's contract SOW, paragraph 3.2.2.2.2.2, Pre-Final Inspection, required
PE to conduct a pre-final inspection and publish a pre-final inspection report (R4, tab 2
at 7, tab 7 at 22). SOW paragraph 3.2.2.2.2.3 Final Inspection, required PE to conduct a
final inspection and publish a final inspection report. "The [final] inspection shall
concentrate on the items identified _at the pre-final inspection and recorded in the pre-
final report." (Id.) At the final inspection PE was to "present a completed DD Form
1354, Transfer and Acceptance of Real Property to the Base Civil Engineer (BCE) for
signature and acceptance" (id.). Paragraph 3.2.2.2.2 Delivery/Warranty reads:

                3.2.2.2.21 88 1 Delivery/Warranty: The DBP03 contractor
                shall complete all inspection and commissioning
                requirements prior to final inspection. Following final
                inspection, the DBPQ3 contractor shall deliver to the
                Government the as-built drawings in the fonnat and media.
                as required by the task order. Further details regarding
                project closeout will be provided at the task order level. The
                warranty shall be issued in accordance with FAR 52.246-21.
                Extended warranties offered by the DBP03 contractor and
                its subcontractors or suppliers may be accepted by the
                Government at its discretion.

(R4, tab 2 at 7, tab 7 at 22)

       184. A "Contracting - Contractor Coordination" meeting was held on 3 April.
2008 to discuss, among various things, closeout procedures (R4, tab 128). Attached to
the meeting minutes was a draft TLF NQ Closeout Schedule prepared by PE 89 dated
3 April 2008 (id. at 7). According to the schedule the "Commissioning and Final
Report" and TAB was to be submitted by 29 April 2008, the AF pre-final inspection


88
     This paragraph number appears to be in error since the preceding paragraph is
         3.2.2.2.2.3.
89
     There is nothing on the schedule or in the minutes that indicates PE prepared the
         schedule, however, the AF stated that PE did (gov't br. at 318, ~ 1564) and PE's
         response to paragraph 1564 agrees that PE prepared the schedule (app. reply br.
         at 238).
                                             93
was to occur between 5 and 9 May 2008, the final inspection was to be completed on
19 May 2008 and beneficial occupancy was to occur on 22 May 2008 (id.).

        185. In April 2008 the AF appointed a new COR, Mr: Kissler, to participate in the
final inspection (tr. 14/79-81). By email dated 27 April 2008 to COR Kissler, Mr. Cardinale
transmitted the TLF pre-final punch list containing 1440 items (R4, tab 417). Mr. Cardinale
                                                                   I        .

recalled that PE had the punch list "down to 50 in about two weeks" (tr. 5/110). PE initially   I.



planned on doing the pre-final for the TLF and VQ at the same time. However, since
progress on the TLF was ahead of the__,. VQ, PE provided notice for the TLF first so they
could stop incurring liquidated damages. (Tr. 5/106-07)

       186. By email dated 29 April 2008 to CO Brown, Mr . Williams stated that because
the furniture for the TLF and VQ had not yet been ordered, "there is no rush to accomplish
the pre-final on the TLF" (R4, tab 4135). He also stated, "Bottom-line, we need to go
back to Parsons thanking them for the notice but informing them that the pre-final for the
TLF will not occur until the VQ is also ready" (id.).

        187. By letter dated 29 April 2008 to PE, CO Brown acknowledged receipt of PE's
"formal 14 day notice for the pre-final inspection for the TLF" (R4, tab 145). CO Brown
stated that the notice was "pre-mature" that the AF projected that the "earliest" the
inspection could be conducted was on 15 May 2008 due to travel schedules for off-site AF
"principles" that were required to attend. She stated that to keep travel at a minimum "the
pre-final for the TLF will not occur until the VQ is also ready." (Id.)

        188. By letter dated 5 May 2008 to CO Brown, Mr. Cardinale provided "the
required 14 day notice for the pre final inspection for the VQ" (R4, tab 147). By letter
dated 8 May 2008 to PE, CO Brown stated the 5 May 2008 notice was "pre-mature" based
on a "cursory site tour" by AFCEE Project Management personnel (R4, tab 148). No
further detail was provided in the letter. CO Brown reminded PE that SOW paragraph
3.2.2.2.2 of the basic task order required PE to provide the Commissioning Final Report,
the Test and Balance Report and PE's Pre-Final Inspection Report before submitting the
14-day notice. She stated, "We will continue to monitor Parson's progress on the
requested reports and continue to be in daily correspondence with Parson's On-Site Project
Management through AFCEE Project Management personnel or On-Site Title II
personnel" (id.).                -

        189. In an internal email dated 8 May 2008, Mr. Cardinale reported that he
talked to Mr. Kissler that afternoon and asked him who would run the final inspection.
Mr. Kissler replied, "then~ will be a cast of thousands." (R4, tab 149) Mr. Cardinale
testified that based on a review of his emails he determined there were at least 28
separate inspections during closeout lasting from April through the end of August 2008




                                           94
(tr. 5/114). Mr. Rothwell, AF Title II 90 , agreed that they did multiple inspections over a
four-month period of time at the end of the contract (tr. 14/72-75). Mr. Rothwell agreed
that the final inspection team included AFCEE, services, base shop, base engineers and
Title II (tr. 14/81). Mr. Rothwell testified if everyone was coordinated and the work
was complete, the government team should be able to inspect and have a consolidated
punch list in "approximately a week" (tr. 14/98).

       190. Mr. Rothwell identified a consolidated TLFNQ Action Item List as of
3 June 2008 as a "punch list" of 324 items that needed correction (tr. 14/26, 59; R4,
tab 4591) The record includes documents evidencing AF punch lists on 18 June 2008
(R4, tabs 150, 151) and 25 June 2008 (R4, tab 152). In a 25 June 2008 email to
CO Brown, Mr. Cardinale wrote:

                Dick Cardinale received this from Tracy today. Are we to
                understand this is the complete, final, pre-final list of items
                the AF has identified as needing attention?

                If so, then do we also understand correctly that the AF
                inspection phase is complete or will there continue to be
                additional inspections accomplished? Since none of this
                follows the pre-final and final inspection criteria from the
                specifications, we are trying to understand what exactly to
                expect from the AF inspections.

(R4, tab 152 at 1) .

         191. By letter dated 30 June 2008 to PE, CO Brown submitted the AF's
consolidated punch list of 113 items for the TLFNQ (R4, tab 153). CO Brown requested
that all deficiencies be corrected no later than 15 July 2008 (id.). As of 14 July 2008,
Mr. Cardinale counted 19 items left on the AF punch list (R4, tab 15 8). As of 25 July
2008 Mr. Cardinale reported PE was working on 5 items on the AF punch list (R4,
tab 159). A 28 July 2008 email to AF and PE's employees from "McGuire Title II"
identified a pre-final punch list "as of 7-28-08" that listed "still outstanding" and
"additional items" that.needed to be resolved before the beneficial occupancy date (BOD)
(tr._ 14/61; R4, tab 1300 at 4). By email dated 29 July 2008, Mr. Kissler recommended
beneficial occupai:icy if the commissioning report was acceptable leaving the remaining
punch list items to be corrected after the furniture arrived (R4, tab 160 at 1).

     _ 192. Mr. Temchin testified about a chronological "sail" diagram of the closeout
activities including the various inspection and number of items on the punch list. A
graph at the bottom of the diagram summarizes the number of punch list items between

90
     AF Title II refers to the contract to provide inspectors construction oversight (R4,
        tab 528 at 9). ·
                                               95
}\pril 2008 and BOD on 11 September 2008. The number fluctuated from around 40 in
April 2008 to 90, to 240, to 110, to 293, to 70 in June 2008 and then tapered off through
September 2008. (Tr. 6/139-144; R4, tab 4673 at 6)

       193. By email dated 14 August 2008, Mr. Dukes reported that CO Brown told him
what needed to be completed for BOD was a "resolution of why the chiller is freezing the
line and a clean, completed commissioning report" and that "all other items that are being
brought up will be handled as warranty items for correction" (R4, tab 1536 at 120).

          194. By internal email dated 19 August 2008, Mr. Cardinale reported that
  Mr. Rola was complaining about noise from the TLF mechanical room affecting the
 .guest quarters above (R4, tab 161 at 1). By email dated 25 August 2008 to CO Brown,
  Mr. Cardinale stated, "We are ready to tum the McGuire TLF and VQ over to the
  government and have been, in our opinion, for a long t1me" (R4, tab 162 at 1). He
  identified two items PE intended to resolve before transfer to the AF and other items
· that could be completed as punch list items after BOD (id.).

       195. By internal email dated 3 September 2008, Mr. Dukes reported a conversation
he had with CO Brown (R4, tab 163 ). CO Brown stated that the AF would accept the TLF
and establish BOD upon receipt of the HTHW certificate from the manufacturer (id. at 1).
The AF would not accept the VQ because it had heard there was a glycol leak in the HV AC
system. Mr. Dukes wrote that he was unaware of a glycol leak. (Id.)

        196 .. In a series of emails dated 9 and 10 September 2008, between PE and the
AF, the parties discussed Mr. Rola's measurement of sound from the mechanical room
in the unit directly above (R4, tab 164 at 1-5). PE questionedwhat criteria Mr. Rola
used to evaluate the results (id. at 2). CO Brown stated to Mr. Dukes that she had the
BOD ready but could not get approval to release it (id. at 1).

        197. By letter dated 11 September 2008 CO Brown acknowledged that the
government accepted the TLF and VQ for "beneficial use" as of 11 September 2008
(R4, tab 3004 at 246; tr. 8/96). On 12 September 2008 Mr. Dukes signed the
acknowledgement that PE received the AF's notification of beneficial use of the TLF
and VQ the day before (R4, tab 165 al: 2). There was a punch list attached to the BOD
notification that PE would treat as warranty work (id. at 1).

        198. The record includes a table prepared by Mr. Scott of PE that contains a
chronological list of punch list related emails between 9 April 2008 and BOD on
11 September 2008. The table shows that between 9 April and 17 June 2008 the number
of deficiencies rose from 26 to 238. 91 Thereafter from 26 June to 9 September 2008 the
number of deficiencies gradually reduced to 2. Attached to the 11 September 2008 notice

91
     PE's "sail" diagram identified the 238 number with Rule 4, tab 4592 (R4, tab 4673 at 3).
        Rule 4, tab 4592 is a table having less than 100 punch list items (R4, tab 4592 at 1-9).
                                             96
 of BOD were an additional 44 punch lis~ items. (R4, tab 125) Mr. Cardinale testified that
 most of the punch list items were "not unreasonable" (tr. 5/174, 176). In its brief PE
 argues that it is not so concerned about the number of inspectors _that conducted the
 inspections, it is that the inspections took so long - over four months (app. br. at 336).
 The length of time to conduct multiple inspections by multiple organizations caused
 inefficiency and additional expense incurred by the subcontractors PE used to correct the
 punch list items (tr. 5/120-21, 6/138-41).

 Davis-Bacon Act Compliance & Office of Special Investigations (OSI) Report

        199. IDIQ contract 8703, DO 13, obligated PE to comply with the Davis-Bacon Act
 (DBA) (R4, tab 7 at 8). As such contract 8703 incorporated by reference OBA-related
 clauses FAR 52.222-1 through 16 (R4, tab 1 at 23). PE was obligated to pay its workers in
 accordance with applicable wage.determinations (WDs). FAR 52.222-6(b)(l). PE was
 obligated to submit payrolls to the AF CO on a weekly basis. FAR 52.222-8(b )(1 ).

        200. FAR 22.404 provides guidance concerning DBA wage determinations.
 FAR 22.404-2 General requirements, directs the CO to incorporate "only the appropriate
 wage determinations in solicitations and contracts." FAR 22.404-2(a). FAR 22.404~3
 Procedures, for requesting wage determinations (WD) directs the contracting agency to
 examine the WD "immediately upon receipt" and inform DOL of any changes needed to
 correct errors. FAR 22.404-3(d) .

         . 201. FAR Part 22, "APPLICATION OF LABOR LAWS TO GOVERNMENT
  ACQUISITIONS," provides relevant guidance. FAR 22.404-2 and FAR 22.404-3
  direct the CO to incorporate the appropriate WD in the solicitation and contract and
  ensure the WD is correct. If the CO determines that the WD is not correct, the CO may
  ask the Department of Labor (DOL) to correct the WD. FAR 22.404-7. FAR 22.406
. Administration and enforcement, includes 22A06-1 Policy, that requires:

                    _(a) General. Contracting agencies are responsible for
              ensuring the full and impartial enforcement of labor
              standards in the administration of construction contracts.
              Contracting agencies shall maintain an effective program
              and shall include-

                    · ( 1) Ensuring that contractors and subcontractors are
              informed, before commencement of work, of their
              obligations under the labor standards clauses of the contract;

                     (2) Adequate payroll reviews, on-site inspections,
              and employee interviews to determine compliance by the
              contractor and subcontractors, and prompt initiation of
              corrective action when required;

                                           97
                      (3) Prompt investigation and disposition of
                complaints; and

                       (4) Prompt submission of all reports required by this
                subpart.

FAR 22.406-1.

Wage' Determination (WD) NJ20030002 and Payrolls

       202. DO 13 included WD NJ20030002 dated 21 January 2005 (R4, tab 7 at 9).
According to the PE, it didn't notice that the WD was missing classifications until late
2008 (tr. 4/129), however, as we discuss below, the 4 April 2008 Memorandum to PE
reporting results from an AF payroll review listed payroll classifications that were not in
WD NJ20030002 (R4, tab 1526 at 1-3).

        203. Mr. Loftis testified that PE and its subcontractors submitted certified payrolls
from the beginning of the project in 2005 (tr. 4/122). There were errors that were corrected
but no major problems with the payrolls were identified by the AF until around April 2008
(tr. 4/123). Ms. Fernandez, contract specialist, testified that PE submitted weekly payrolls
and the AF would sample them to make sure everything was correct (tr. 13/49, 71). The
first labor interviews were conducted by Ms. Fernandez on 6 December 2007 (tr. 13/73; ·
ex. G-1 ). She found discrepancies between the payrolls and what she learned from the
interviews (tr. 13/71-73). This caused the AF to take a closer look at the payrolls
(tr. 13/72-74, 79). Around March 2008 the AF asked PE to resubmit all of the payrolls all
the way back to the beginning of the project in 2005 (tr. 4/123-24). 92 Mr. Loftis testified
that complying with this request was "extremely difficult" (tr. 4/124). He explained:

                It was just an extremely difficult process. I mean, as you
                can imagine three years after, two, three years after the
                project started, many of them [subcontractors] had already
                left. Soine of the employees of some of the subcontractors
                had already left the company. And I know at least one
                company went bankrupt.

92
     CO Mendez testified that PE did not submit payrolls in 2006 and 2007 (tr. 16/59).
        She explained this was the reason the government asked for old payrolls
        (tr. 16/63-64 ). However, she was not on the project in 2006 and 2007 (tr. 16/59)
        and in its brief the AF does not contend that PE failed to submit payrolls for 2006
        and 2007 (gov't br. at 242-44). We find that Ms. Mendez's testimony that PE
        failed to submit the 2006 and 2007 payrolls is not as credible as Mr. Loftis'
        testimony on the subject                              ·


                                            '98
    (Tr. 4/125) The task of getting all of the subcontractors to cooperate was "extremely
    difficult" (tr. 4/124, 141-42).

           204. By memorandum dated 4 April 2008 to PE, CO Brown listed "concerns"
    based on a "review of payrolls submitted for the pay period commencing on the [sic]
    22 Sep 06 through 15 Mar 08" for the TLFNQ contract (R4, tab 1526 at 1-3) 93 • For
    these payrolls she found problems with deductions, unpaid fringe benefits, unidentified
    "other" deductions, unpaid overtime, and employees classified as carpenters not found
    on WD NJ20030002 (id.).

            205. By memorandum dated 7 April 2008 to PE, CO Brown provided a spreadsheet
    listing the problems found with payrolls (R4, tab 1226 at 2, 4-7) 94 • For PE's subcontractors
    she found incomplete/missing payrolls, classifications missing from WD NJ20030002
    (Carpenter, Plumber, Journeyman, Pipefitter), missing statement of compliance,
    unidentified "other" deductions and missing apprentice documentation (tr. 13/91-93; R4,
    tab 1226 at 2-7). CO Brown requested that PE provide the information so that the AF can
    complete its payroll review (id. at 3). By letter dated 2 July 2008 to PE, CO Brown
    submitted another spreadsheet listing various problems requiring correction (R4, tab 1280).
    The 2 July 2008 spreadsheet included unidentified "other'' deductions, missing apprentice
    documentation, missing statement of compliance, and work classifications listed on
    payrolls not in WD NJ20030002 (id.).

            206. The AF continued to review payrolls after the BOD on 11 September 2008
    (tr. 16/74). By letter dated 15 October 2008 to PE, CO Brown provided another list of
    problems with payrolls and notified PE that "no payments will be made until we receive
    all the requested payroll information" (R4, tab 1526 at 8). Ms. Fernandez conducted
    15 to 20 such reviews before she left the project in 2010 (tr. 13/93) .. They found similar
    problems in all reviews and "a lot of people that they're not being paid the minimum
    wages that they were entitled to so we had to have the subcontractors or even Parsons
    pay restitution to those individuals" (tr. 13/94).

            207. By letter dated 16.March 2009 to Mr. De Quiroga, AF labor advisor, PE
    requested his assistance initiating a letter of inadvertences to correct the omission of work
    classifications to WD NJ20030002 (R4, tab 173). A letter of inadvertency is used when a
    DOL classification exists but was "inadvertently" omitted from a WD (tr. 15/159-60).
    On 4 May 2009, Ms. Carson, PE, called Ms. Myers, AF, requesting assistance in resolving
    payroll issues because the AF was withholding over $3 million in final payment until the
    issues were resolved. Ms. Myers forwarded the inquiry to AF labor advisors Mr. De Quiroga


    93
         The 4 April 2008 memorandum in the Rule 4 file is incomplete.
    94
_        The spreadsheet was updated overtime (tr. 15/261-62; R4, tabs 439,441, 1429).

                                                99
 and Ms. Gillam. (R4, tab 174) On 25 March 2010 95 the DOL sent similar letters of
 inadvertence to CO Robarge and CO Muniz, AFCEE (R4, tabs 166-67), identifying errors in
·WD NJ20030002 that omitted thirteen wage classifications (bricklayers, stonemasons,          ·
 marble masons, cement masons, plasters, tile layers, terrazzo workers, elevator mechanics,
 carpenters,' insulators, miilwrights, soft floor layers, and drywall finishers/tapers). (R4,
.tabs 166, 167) CO Muniz signed an AF 1444 on 16 April 2010 requesting that a drywall
 hanger be added to WD NJ20030002, Mod. 12 (R4, tab 1566 at 11). By letter dated 19 April
 2010 the DOL approved the request for the added classificati_on of drywall hanger (R4,.
:tabl68). Ms. Mendez stopped payroll review in August 2012 even though they had not
 achieved 100% review (tr. 16/33). A total of 3,690 payrolls were received by the AF from
 PE (R4, tab 1745 at 3). Ms. Mendez had a spreadsheet documenting restitution that indicates
 PE paid $88,510.66 in restitution (tr. 16/34-35; R4, tab 1735 at 1-2).

 OSI Investigation

          2Q8. Ms. Hom is an agent with the AF Offo::e of Special Investigations (OSI)
  (tr. 14/6). Just after she became an agent at MAFB in December 2010 she was assigned to
  an investigation concerning the VQ/TLF project (tr. 14/6, 8). Ms. Hom wrote the final
  report of investigation (ROI) dated 20 January 2012 dealing with the VQ/TLF project
  (tr. 14/7; R4, tab 1437). Ms. Hom would not identify the confidential sources who
  initiated the investigation in 2007, but she testified they were not "on the government" side
  (tr. 14/9, 22; R4, tab 1437 at 8). In February 2008 OSI received information from another
· confidential source about payroll discrepancies (tr. 14/13-14).

          209. Citing the AF OSI Report of Investigation, dated 20 January 2012, PE argues:

                       Even though the first onsite AF employee interview
                was conducted in December 2007, the Government was
                slow to follow through. Rather than quickly notifying the
                contractor of any problem, AFCEE instead contacted OSI,
                which added a payroll investigation to its existing
                investigation. (See R4, tab 1437)

 (App. br. at 391) The report, however, states:

                This case was initiated ba~ed upon information provided by
                Confidential Source (CS) 1 in Fall of 2007. CS 1 indicated
                Parsons might have been engaging in.potential fraudulent
                activities within the realms of the TLF and VQ project on
                JBMDI, NJ.. .. The allegation brought forth by CS 1 was

 95
      Only one of the letters, the one to CO Muniz, is dated (R4, tab 167). We have no idea
         why these letters were issued in March 2010 well past the BOD of 11 September
         2008 and a year past PE's request to Mr. De Quiroga.
                                             100
               that Parsons was violating the Davis Bacon Act (DBA) in
               the payment of employees, and then committing Title 18
               USC § 1001, False Statements, and Title 18 USC § 287,
               False Claims, when certifying those payrolls and forwarding
               then to AFCEE for processing and payment.

(R4, tab 1437 at 8) We find that the OSI investigation of PE was not initiated by OSI at the
request of the government but rather due to information received from nongovernmental
confidential sources.             -

· PE's Claim

      210. By letter dated 29 June 2012, PE submitted its claim in the amount of
$33,826,872, plus $1,834,072 in unpaid contract balance 96 (R4, tab 21 at 1, 8). PE
claimed Design Impact, $775,776; Earthwork Differing Site Conditions, $369,486;
High Temperature Hot Water, $597,899; Triarch Coating, $99,972; Closure Inspections,
$232,321; Certified Payroll, $1,090,098; Schedule Delay/Extended OH, $2,503,326;
and Modified Total Cost Method, $28,157,994 (id. at 8).

DCAA Audit

       21 L DCAA conducted an audit of PE's $33,826,872 claim and issued an audit
report on 18 January 2013 (R4, tab 213). DCAA questioned all but $135,305 of the
claim (id. at 6). In denying the claims, DCAA relied on technical evaluations provided
by the AF (AFCEE/EXA) (id. at 7). DCAA found that the claimed costs had been
incurred, but did notchallenge the reasonableness of the costs (id. at 5-6, 8-9, 13-15,
18-19,22,27,31,34).                \            -                     -

         212. DCAA listed "SIGNIFICANT ISSUES" at the start of its audit report:
                                   ·,

               The contractor included a significant amount of unallowable
               and unallocable costs including:

               a. PE's incorrect use of the Modified Total Cost Method
                  (MTCM) to calculate Claim V. Both the DCAA and Air
                  Force Center of Engineering and the
                  Environment-Strategic Executive Branch (AFCEE/EXA)
                  determined the MTCM should not be utilized. In order
                  to calculate a claim using the MTCM, a contractor needs
                  to meet the four specified criteria namely (i) ability to
                  separate costs, (ii) realistic bid; (iii) reasonable costs; and
                  (iv) Government responsibility for additional costs,

96
     This was reduced to $347,526 in PE'.s Quantum argument(app. br. at 487).
                                              101
                    which have been set forth in precedent court cases. We
                  · determined PE did not meet the requirements.

                b. The contractor claimed schedule delay and extended
                   jobsite overhead in its claims. The AFCEE/EXA
                   technical evaluations found both the number of days and ·
                   daily general conditions rate us~d in the calculation of
                   Claim Vlll to be overstated.                        ·

                c. AFCEE/EXA found the costs in multiple claims to be
                   unwarranted and not substantiated. We questioned the
                   costs, based on the recommendations of AFCEE/EXA.

(R4, tab 213 at 4)

      213. Claim I is Design Impacts (R4, tab 213 at 7). · The claimed amount after
markups i~ $775,776 (id.). DCAA described how this amount was calculated:

                       PE calculated the net design cost by summing design
                labor cost, design labor burden, third party cost,
                blueprints/reproductions, and client directed design. changes
                and then subtracting estimated design ~osts, and budget
                drawing allowance. Estimated design costs and budget
                drawing allowance are based on PE's original budget for the
                task and amounts PE claims it would have incurred without
                unforeseen costs caused by additional Government
                reqµirements and delays. To finish the calculation, the
                contractor also subtracted the allowance for modification 2
                design costs, which were based on actual costs incurred.
                The allowance for modification 2 design costs were
                subtracted, because the costs were funded by modification 2
                and were not beipg claimed by PE as costs caused by the
                Government.

(R4, tab 213 ·at 8) PE claims markups for bond, GL & BR insurance, G&A, and profit.
DCAA ''[took] no exception to the bond, profit and composite G&A claimed rates" but
found a calculation error in PE's GL & BR insurance markup of 1.31 %. DCAA questioned
0.4784% of the 1.31 % for a rate of 0.8316%. (Id. at 9, 10) The individual costs were
Design Labor, Design Labor Burden, Third Party Cost97 , Blueprints/Reproductions and
Client Directed Design Changes with adjustments (id. at 8). DCAA questioned all of Claim


97
     Third-party design costs relate in large part to engineering and architecture
         subcontracts (R4, tab 3003 at 26-30).
                                             102
I based on the AF's technical evaluation (id. at 7). However, at the CO's request, DCAA
determined that the Claim I design costs were incurred:

              We determined the claimed costs were incurred based on
              our review of the contractor's accounting records and source
              documents. In addition, we reviewed the calculations and
              documentation for the estimated design, budgeted drawing
              allowance and allowance for modification 2 design costs
              and determined the calculations and documentation support
              the costs in its claim.

(Id. at 8-9) DCAA did not independently evaluate the reasonableness of the claimed
costs. CO Santiago issued his final decision (COFD) on 27 March 2013 (R4, tab 214).
The COFD denied Claim I in its entirety (id. at 15).

        214. Claim II, Differing Site Conditions in Earthwork Costs, consists of three
claims for unsuitable fill, organic layer, and asbestos contamination (R4, tab 213 at 11 ).
DCAA found the same calculation error in PE's GL & BR insurance markup of 1.31 %
(id. at 6). The post-markup corrected results for all three claims were:

       Claimed Amount                Audit Amount              Questioned Amount
           $369,486                      $95,241                     $274,246

(R4, tab 213 at 16) The allowed amount of $95,241 and questioned costs were based on
the AF's technical evaluation (id. at 12-15). DCAA found that the costs had been incurred
for all three of these claims (id. at 13-15). DCAA did not independently evaluate the
reasonableness of the claimed costs. The COFD accepted liability for the unsuitable fill
claim, "valid costs applicable to the removal and haul-off of unsuitable soil, replacement
with 'clean-fill' material and compaction of clean backfill" (R4, tab 214 at 24). The
COFD allowed a total of $37,331 for the unsuitable soil claim (id. at 26). The COFD
denied the organic layer claim in its entirety (id. at 30). The COFD agreed that the
asbestos pipe was a Type I differing site condition (id. at 31 ). However, the COFD found
PE costs were unreasonable and made changes to PE's labor hours: ·

       •   FYs 2006 & 2008 labor hours deleted because asbestos pipe did not occur
           during this timeframe.
       •   Labor hours with no labor categories assigned were removed.
       •   Contract management hours reduced to 9 .5 hours.
       •   Project Engineer hours removed as the work was subcontracted.
       •   On-Site Project Manager hours removed as the work was subcontracted.
       •   Submittal Engineer hours removed as not required for this task.



                                            103
 (Id. at 31-32) The COFD allowed a total of $51,940.08 for the asbestos pipe claim (id. at
 33). The total allowed for these three differing site conditions claims was $89,271 (id.).

        215. Claim III is Impacts from Differing Site Conditions at High Temperature
 Hot Water Line (R4, tab 213 at 17). The total claimed costs after markup was $597,899
 (id.). DCAA questioned all costs based on the AF's technical evaluation (id.). DCAA
 found that the costs were incurred (id. at 19). DCAA found the same calculation error
 in PE's GL & BR insurance markup of 1.31 % (id. at 20). DCAA did not independently
 evaluate the reasonableness of the claimed costs. The COFD denied Claim III in its
 entirety (R4, tab 214 at 39).

        216. Claim IV relates to the Triarch Coating (R4, tab 213 at 21). The total claimed
 costs after markup was $99,972 (id.). DCAA questioned all costs based on the AF's
 technical evaluation (id.). DCAA found that the costs were incurred (id. at 22). DCAA
 found the same calculation error in PE's GL & BR insurance markup of 1.31 % (id. at 23).
 DCAA did not independently evaluate the reasonableness of the claimed costs. The COFD
 denied Claim IV in its entirety (R4, tab 214 at 58).

         217. Claim V is Government Management and Administration of the Design-Build
 Process During the Build Phase .(R4, tab 213 at 24). This claim was a modified total cost
 method (MTCM) claim in the amount of $28,157,994 (id.). DCAA determined that the total
 job cost ledger (cost incurred) was valued at $65,234,583, Le., a 100% overrun from the bid
 (id. at 27). DCAA determined none of the elements of a MTCM were satisfied and
 questioned all of the costs claimed based in part on the AF technical evaluation (id. at 25-27):

            • Ability to Separate Costs: DCAA concluded PE's accounting system was
              capable of separating various claimed costs (id. at 25-26).

            • Bid is Realistic: DCAA concluded that PE's bid was unrealistic for two
              reasons. First it was about 38% lower than the other two bidders. 98 Second,
              since the AF technical analysis found no "cardinal change" directing work
              outside the scope of the contract, the 100% overrun indicates an unrealistic
              bid. (Id. at 26)

            • Reasonable Costs: DCAA found that since the AF technical analysis found
              no "cardinal change" the 100% overrunindicates costs are not reasonable
              (id. at 26-27).

· 98   Caddell Construction, a competitor for the project, bid $45,183,064 (tr. 4/96; R4,
          tab 3731 at 6). Mr. Tengler testified that it was not unusual for these types of
          jobs to have "considerable differences" in the PE's bid and Caddell's bid does
          not mean there was a problem with PE's bid (tr. 4/96-97). Mr. Tengler believes
          PE's bid was reasonable (tr. 4/97).

                                              104
          • Gov~mment is Clearly Responsible: DCAA found that the AF was not
            responsible based on the AF's technical analysis (id. at 27).

DCAA conducted a "dollar unit statistical sample" ar:id determined that the costs were
incurred (id. at 27). The COFD denied Claim V in its entirety (R4, tab 214 at 110).

        218. Claim VI is Closure Inspection process (R4, tab 213 at 30). The total
claimed costs after markup was $232,321 (id.). DCAA questioned all costs based on the
AF's technical evaluation (id.).· DCAA found that the costs were incurred (id. at 31).
DCAA found the same calculation error in PE's GL & BR insurance markup of 1.31 %
(id. at 32). The COFD denied Claim VI in its entirety (R4, tab 214 at 127).

        219. Claim VII is Incomplete Wage Determination and Processing of Payrolls
(R4, tab 213 at 33). The total claimed costs after markup was $1,090,098 (id.). DCAA
questioned all costs because violations of the Davis-Bacon Act are PE's responsibility
(id. at 34). DCAA found that the costs were incurred (id.). DCAA found the same
calculation error in PE's GL & BR insurance markup of 1.31 % (id. at 35). The COFD
denied Claim VII in its entirety (R4, tab 214 at 133).

        220. Claim VIII is Schedule Delay and Extended Jobsite Overhead (R4, tab 213 at
36). The total claimed costs after markup was $2,503,326 (id.). DCAA questioned all but
$40,065, after markup, of the costs based on the AF's technical evaluation (id.). DCAA
relied on the AF's technical evaluation that found that PE's daily General Conditions (GC)
rate of $7,298 was excessive and applied a rate of $833 99 per day (id. at 37-38). The AF
technical evaluation found 42 days of delay and $833 multiplied by 42 equals $34,986
which is $40,065 after markups (id. at 36-38). DCAA found the same calculation error in
PE's GL & BR insurance markup of 1.31 % (id. at 39). The COFD denied Claim VIII in
its entirety (R4, tab 214 at 141 ).

PE Replaces MTCM Claim with "Balance of Construction Phase" Claim

       221. As explained it its brief, PE responded to the DCAA's & AF's criticism
and "replaced" the $28,157,994 modified total cost method (MTCM) claim with a
"balance of construction phase" claim. This was done after the DCAA audit so we do
not have an audit of the discrete elements ofthe Balance of Construction Phase Claim.
However, we know that these costs were incurred by PE because they are the same costs
in the MTCM claim. The Balance of Construction Phase Claim we consider in this
decision is as follows:



99
     DCAA quoted the AF's technical evaluation, "Parsons was requesting only $833 per
       day in 2006, when they were fully mobilized to the jobsite" (R4, tab 213 at 37).
                                           105
                                                                  Cost
       1.  Selected overruns in :mbcontractor buyouts:         $4,068,798
       2.  Selected subcontract change orders:                 $5,672,525
       3.  Misc. Construction cost credits:                     ($800,506)
       4.  Other extra work coded during the-project:          $2,593,064
       5.  Increased General Conditions costs not
           reimbursed by change orders or settled on Mod. 2: $4,614,438
       6. Construction costs added by AF rejection
           of "structural brick" design and requirement
          .to accommodate heavy building design with
           added reinforcement, etc.:                        $1,906,401

                    Subtotal                                  _$18,054,720
                    A.dd (undisputed) markups at 14.524%        $2,622,270
                    Total in claim                             $20,676,990

(App. br. at 234)

AF's Expert in Construction Accounting

        222. The Board accepted Mr. McGeehin, FTI Consulting, as an AF expert in
construction accounting and pricing of damages (tr. 17/12). Mr. McGeehin testified that
he did not question that the $65,000,000 PE spent on this contract was "incurred and was
recorded and charged to this project" (tr. 17i21). He does not question that PE incurred the
costs it claims (tr. 17/59). He does not question markups for bonds, G&A and insurance
because they were not questioned by DCAA (tr. 17/49, 97-9&). He found that PE did not
double count (tr. 17/58).        -,

        223. PE calculated its extended site overhead based on four time periods because
"[t]he jobsite overhead requirements varied substantially between those periods" (app. br. at
482; R4, tab 3012 at 12). Mr. McGeehin evaluated PE's daily rate and made adjustments (tr.
17/3 9-42). He reported his results in an 18 June 2014 Expert Report. In this report he
explained that certain time-related general condition costs were included in PE's discrete
claims and should be removed (R4, tab 1451 at 18-21). He did not otherwise challenge PE's
calculation of its daily rates (id.). Mr. McGeehin developed slide 106 of his PowerPoint
presentation to summarize his work (ex. G-4 at 107). The table below shows slide 106 with
the time periods for each daily rate added in by the Board:




                                           106
                                                               FTI Daily       FTI Daily
                                Dates                          Rates/Time    Rates/Removal
       Period/                                      PE Daily    Related       of Non-Time
      Description                                   Rates[tooJ Amounts           Related
                                                                                Amounts
    Design          13 July 2005 to 31 July 2006     $1;696      $1,887          $1,732
    Period
   Horizontal        1 Aug 2006 to 31 Aug 2007       $7,712      $7,949          $7,353
  Construction

  Acceleration . 1 Sept 2007 to 31 May 2008         $13,548     $14,081         $13,761
    Vertical
    Constr.
   Closeout      1 June 2008 to 31 Oct. 2008         $4,688      $5,863          $5,851

(Ex. G-4 at 107; R4, tab 3012 at 12) Mr. McGeehin also developed handouts to further
explain how he arrived at the daily rates in the three columns on slide 106 101 (tr. 17/44-49;
Handout Schedules A, B, C, D).

DelayAnalysis Expert Witnesses

       224. The Board accepted Mr. Ockman as an AF expert in construction scheduling
and estimating (tr. 16/128-29). Mr. Ockman used a "time impact study" to analyze the
delays (tr. 8/100-101, 16/134, 209; R4, tab 1764). Mr. Ockman used PE's baseline schedule,
dated 11 August 2005, but he did not have the electronic version, he had a PDF version so he
couldn't see some information (tr. 16/135, 215, 18/6-7, 9-10; R4, tabs 538, 3873).

        225. The Board accepted Mr. Evans as PE's expert in scheduling issues and delay
analysis (tr. 7/202). Mr. Evans used a delay analysis using as-planned and as-built
activities (tr. 7/203). Mr. Evans used the as-planned schedule dated 27 October 2006 that
was approved by the government (tr. 7/210, 212; R4, tab 3004 at 90). The critical path ran
through the VQ not the TLF because the TLF was not affected by the differing site
conditions at the VQ (tr. 7/216). Mr. Evans' as-built schedules are derived from daily
reports and other documentation that provides actual starts and finishes (tr. 7/206, 218-20).



100
       PE's daily rates did not include mark-ups (ex. A-19 at 27; R4, tab 3012 at 11).
101
       AF counsel asked Mr. M~Geehin if he "mirrored what Mr~ Rosenfeld [PE's expert]
         did in his report" and Mr. McGeehin answered "That's correct" (tr. 17/49). We
         have no idea what this testimony is supposed to mean because we did not see it
         explained in the AF's brief. We found no discussion of daily rates to assist us in
         the AF's brief so we adopt PE's rates.
                                              107
         226. The main difference between Mr. Evans' method and Mr. Ockman's method
 is that Mr. Evans measured critical path delay in terms of how much later the critical work
 actually began as opposed to a predicted start (tr. 8/119-20). Mr. Evans testified that in
 developing the CPM schedule "[y Jou want to look at the contemporaneous documents to
 find out what actually happened" (tr. 8/129). Mr. Evans' analysis uses the actual as-built
 information whereas Mr. Ockman's time-impact analysis uses forecasts (tr. 18/211-12).

         227. While the competing expert reports used different approaches, we need not go
 into the relative merits of each expert's approach because they both generally agree the VQ
 was on the critical path starting with the foundation work at Wing A where the earthwork
 differing site conditions were encountered. To the extent the experts provide opinions as
 to which party is responsible for delays or other questions of law, such opinions exceed the
 scope of expert evidence and are inadmissible. Parsons-UXB Joint Venture, ASBCA
 No. 56481, 12-1BCAi134,919 at 171,695 (expert testimony pertaining to issues of law is
 inadmissible).~

Appeal & Docketing

      228. PE timely appealed the 27 March 2013 COFD to the Board on 22 April
2013. The Board docketed the appeal as ASBCA No. 58634 on 24 April 2013.

                                       DECISION

Preliminary Matters

       . The parties insisted that the Board decide both entitlement and quantum. The
Board agreed. However, we have unanswered questions about both parties' quantum
presentations. PE discussed discrete entitlement facts that were not separately discussed
in its quantum section, and made quantum arguments that were not easily traceable to
its unnumbered entitlement facts. The AF responded in general terms to PE's quantum
arguments but chose not to individually address the itemized arguments in Section K of
f>E's quantum section. Additionally, because we agreed to decide quantum, there are
several areas where we agreed PE was entitled to recover but because our decision
varied from PE's quantum presentation we could not calculate an amount for PE.

35%Design

         In numerous places in its brief PE refers to RFP 8234 35% design as if the 35%
  design survived the approval of PE' s 100% for construction design., We address that
  argument here rather than each time it appears. The 35% design was used in the
  contract solicitation and bidding process (finding 18). After award, PE was required to
  complete the design and construct the buildings. PE's 100% Site Civil/Structural
. drawings for the TLF ( 17 April 2006) and VQ (27 April 2006) completed the design for
 the foundations (finding 90). PE's 100% for construction drawings for the entire project

                                           108
were approved on 24 July 2006 (finding 99). Thereafter, the 35% drawings·become
irrelevant to the construction of the buildings. For the reasons stated in this decision,
the only exception relates to progressive collapse.

"NewArguments"

      PE includes Addendum A, PFF Analysis, to its reply brief. In it PE lists and
comments upon every numbered Proposed Finding of Fact (PFF) in the AF's brief. One
column in the Addendum is titled "New Argument" where "X" indicates the PFF is an
argumerit PE has not seen before. PE asks the Board to reject these new arguments:

                NEW ARGUMENTS. Government counsel have combed
                selectively through the contract documents and exhibits and
                come up with a number of completely new arguments and
                interpretations. We ask the Board to reject such new
                defenses as untimely, and because Appellant never had an
                opportunity to challenge them either through
                cross-examination or through its own witnesses at trial.

(Addendum A at 1) The problem with PE's request is that all the documents used by the
AF in these "new arguments" were admitted into the record without objection from PE.
Such argument is acceptable. See, e.g., United Technologies Corp., ASBCA No. 25501,
86-3 BCA ,r 19,171 at 96,920 ("Attachment A to the Government's brief presents
arguments of data contained in Rule 4, tab 44, Exhibits G-15 and G-5, tab C. Arguments of
evidence in the record are permissible. Attachment [A] shall remain in the brief."). 102 The
record in this case includes over 3,000 Rule 4 tabs, some tabs having hundreds and a few
over a thousand pages. It is clear to us that this is a danger associated with extensive
electronic Rule 4 files. With electronic files, it is easy for the parties to "dump" so many
documents into evidence that they simply do notknow what is in the record and certainly
cannot use them all. Nevertheless, in the circumstances before us here, the documents PE
complains about are in the record, they are fair game for use by either party. We deny PE's
request that we "reject" these "new arguments."

FAR 31.201-2 Determining Allowability

        PE accurately identifies the elements listed in FAR 31.201-2 required to determine
that a cost is allowable:


102
      Changes to spreadsheets attached to the government's brief that had previously been
        introduced into evidence were not allowed. United Technologies, 86-3 BCA
        ,r 19,171 at 96,923. Summaries of voluminous documents (invoices) without
        citation to the record have likewise been stricken for lack of authentication.
         Versar, Inc., ASBCA No. 56857 eta!., 12-1 BCA ,r 35,025 at 172,118.
                                            109
              (I) Reasonableness.

              (2) Allocability.

              (3) Standards promulgated by the CAS ?oard, if applicable,
              generally accepted accounting principles and practices
              appropriate to the circumstances.                  ·

              (4) Terms of the c~mtract.

              (5) Any limitations set forth in this subpart.

(App. br. at 427-30) In its brief the AF identifies which of the elements it contests,
"What Respondent contests is the allegation that the incurred costs were caused by
Respondent or were reasonable in amount" (gov't br. at 475). This narrows our inquiry
to reasonableness and causation.

PE's Claimed' Costs were Incurred

        At the request of the AF, DCAA verified that the claimed costs were incurred
(findings 211, 213-19). Mr. McGeehin found that all of PE's claimed costs were       .
actually incurred (tr. 17/59). The AF does not take issue with DCAA's finding, "The
fact that Appellant incurred its claimed costs is not at issue in the litigation -
Respondent concedes that Appellant incurred costs" (gov't br. at 475).

PE's Incurred Costs are Allocable to DO 13

        Mr. McGeehin found that all of the incurred costs were allocable to the contract
(tr. 17/59-60). The AF does not contest that PE's claimed costs are allocable.

PE's Bid was Reasonable

       Even though we do not see this as a modified total cost claim, we feel we need to
deal with this point. We evaluate bid reasonableness primarily based on what was known
before award. PE discusses the process it went through to arrive· at its bid consisting of
Mr. Tengler's calculation of the bid, Mr. Booth's "check estimate," the U.S. Cost estimate
and the executive review meeting (app. br. at 435-40; findings 59, 60). The AF responds
with various facts in support of its argument that the bid was unreasonable (gov't br. at
477-81). The AF argues that because PE failed to implement its mitigation strategy to




                                            110
address cost escalation 103 after award its bid must have been unreasonable (id. at 479).
We disagree.

        Whether a cost is reasonable is a question of fact. Kellogg Brown & Root
Services, Inc., ASBCA No. 58081, 17-1 BCA 136,595 at 178,240 (The Federal Circuit
additionally noted that cost reasonableness "is a question of fact."). We understand the
same to be true for the reasonableness of a bid. In Ingalls Shipbuilding Division, Litton
Systems, Inc., ASBCA No. 17579, 78-1BCA113,038, we explained that "the purpose
of an accurate bid or estimate is to enable us to determine with some degree of
reliability what portion of the actual cost exceeds what it properly should have cost."
Id. at 63,671. While we agree with PE that the process it used to reach its bid price was
logical, that is only one factor we consider in arriving at our conclusion that the
$33,566,277 bid was reasonable.

        We consider the unusual way the bids were solicited and evaluated. RFP 8234
informed bidders that contract award would be "to the contractor offering the lowest price"
(finding 18). RFP 8234 included the AF's IGE for the VQ of $17,977,243.00 and TLF of
$15,373,500 for a total of$33,350,743 (id.). There was also something called the
Construction Cost Limitation (CCL) that was mentioned in a note on the 35% drawings
(finding 12). However, the amount of the CCL of $33,598,568 was not disclosed in RPF ·
8234 but was discussed in the Price Competition Memorandum (PCM) (finding 61). The
CCL was only about $250,000 greater than the IGE. The CCL appears to be a price-cap
imposed by the AF on the award of the contract. We come to this conclusion based on the
PCM that stated the two other bidders, MWH and Caddell, were "too far out of range [over
the CCL] to allow further consideration" and "were deemed irreparably high when
compared with the CCL, the IGE and the offer from Parsons" and were "rejected out cif
hand" (findings 62-63). The AF then negotiated with PE to allow "award within the funds
set forth in the CCL" (finding 63). The AF then found that PE's bid was reasonable based
on "adequate price competition" (finding 64 ). 104

       We are not convinced that the AF acted appropriately in its pre-award dealings
with PE. If there was truly price competition we would expect the record to reflect AF
concern that PE's bid might be mistaken. We understand that the AF asked PE if it
would confirm its bid but did not point out the disparity between PE's bid and the other
two bids (finding 60). To the contrary, the AF rejected the other two bids "out of hand"

103   PE planned to require subcontractors to hold their bids for 120 days, that bids would
         include material costs, that "volatile materials such as concrete and steel" were to
         be purchased within that 120 days and "stored either on site or in bonded and
         insured warehouses" (finding 58).
104
      We recognize that the government's pre-award assessment that a bid was reasonable
         is not binding on the Board. Grumman Aerospace Corp., ASBCA No. 48006,
         06-1BCA133,216 at 164,620-21.

                                              111
and focused solely on getting PE within the CCL. We understand we are not dealing
with a mistake in bid/reformation case because PE defends its bid. However, FAR
imposes an obligation on the government to guard against mistakes in bid. 105 This
obligation is not diminished by the fact that award is based on price alone. There is no
evidence in the record that the AF ever considered alerting PE to a possible mistake. The
record convinces us that the only thing the AF was interested in was getting PE's bid at
or below the CCL, mistaken or not. 106 Now, when it suits the AF's purposes, it argues
that the two higher bids are proof that PE's bid is unreasonable (gov't br. at 477-78). We
will not give any weight to this argument given the AF's completely contradictory
behavior before award.

       We also consider the fact that DCAA's conclusion that PE's bid was
unreasonable was based on the AFCEE's technical evaluation of the claims. DCAA
noted that since the AFCEE technical evaluation found there was no "cardinal
change," 107 the 100% overrun indicates the bid was unreasonable (finding 217). We do
not agree with DCAA's conclusion because, contrary to the AF's technical evaluation,
we find in this decision substantial changes and delays that increased the cost of
performance for which the AF is responsible. Other post-award factors such as
commodity and labor price escalation and PE's failure to execute its pre-award
mitigation plans, do not support the conclusion that PE's bid itself was unreasonable.
By way of example, if the fair market price for concrete was $10 .00 a unit before award
and $20.00 a unit when it was purchased, both prices were reasonable. We find that
PE's bid was reasonable.

PE's Costs are Reasonable

        It is PE's burden to prove its claimed costs are reasonable. PE argues its costs
are reasonable because, "The Contracting Officer asked DCAA to verify that Parson's
actual incurred costs were reasonable, and the DCAA audit report did not question the
reasonableness of those costs (R4, tab 213 at 109-112)" (app. br. at 427). This ts not
accurate. The record cite provided by PE does not support PE's argument. The DCAA
audit report indicates that the contracting officer asked DCAA to verify that the claimed
costs were incurred. In response, DCAA traced the applicable costs in job cost ledgers
to supporting accounting records and source documents and found that the claimed costs

105
      FAR 14.407-1 requires that when a "contracting officer has reason to believe that a
        mistake may have been made, the contracting officer shall request from the
        bidder a verification of the bid, calling attention to the suspected-mistake." We
        discussed this obligation in Orion Technology, Inc., ASBCA No. 54608, 06-1
        BCA, 33,266 at 164,854-55.
106
      The AF's expert, Mr. Rushing, seems to reach the same conclusion, "It appears this
        discussion effort was geared more toward getting the Parsons team to the CCL than
        with clarifying their understanding of the RFP requirements" (R4, tab 1449 at 7).
107
      We have no idea why AFCEE and DCAA focused on a "cardinal change."
                                           112
  were incurred. (Findings 211-20) In its audit, DCAA did not challenge the
· reasonableness of any specific costs. DCAA generally questioned all costs based on the
  AF's flawed te.chnical review basically finding no entitlement.

        The AF argues that PE's claimed costs were not reasonable because it "failed to
 perform in accordance with its bid plans" and failed to hold subcontractors to fixed
 price bids, and failed to implement its mitigation plan (gov't br. at 481-82). We agree
 that PE failed to fully execute its plans, but we fail to see how this relates to the
 reasonableness of specific ii:curred costs.

         PE's costs are not presumed reasonable just because they were incurred. Northrop
 Worldwide Aircraft Services, Inc., ASBCA Nos. 45216, 45877, 96-2 BCA ,r 28,574 at
 142,628-29. Although the AF accurately quotes FAR 31.201-3(a) (gov't br. at 476-77), it
 fails to properly interpret the clause. We focus on the following language:

                Reasonableness of specific costs must be examined with
                particular care in connection with firms or their separate
                divisions that may not be subject to effective competitive
                restraints. No presumption of reasonableness shall be
              . attached to the incurrence of costs by a contractor. If an
                initial review of the facts results in a challenge of a specific
                cost by the contracting officer cir the contracting officer's
                representative, the burden of proof shall be upon the
                contractor to establish that such cost is reasonable.

 FAR 31.201-3(a) (Emphasis added) When interpreting a procurement regulation, ''we
 seek an interpretation consistent with the plain terms provided; it is not our prerogative
 to insert additional words or phrases to alter an otherwise plain and clear meaning."
 Raytheon Company, ASBCA No. 57576 et al., 15-1 BCA ,r 36,043 at 176,050. The
 critical language is, "If an initial review of the facts results in a challenge of a specific
 cost by the contracting officer or the contracting officer's representative, the burden of
 proo.f shall be upon the contractor to establish that such cost is reasonable." This
 language in FAR 31.20 l-3(a) is unambiguous. It requires two actions by the
 government: (1) it must perform an "initial review of the facts," and (2) that review
 results in a "challenge" to "specific costs." It is the contractor's burden to prove the
 reasonableness of the challenged specific costs.

        We interpreted FAR 3 l .201-3(a) in our recent case of Kellogg Brown & Root,
 17-1 BCA ,r 36,595, where we recognized that contesting reasonableness "is significant
 because it shifts the burden of proof'to the contractor. Id. at 178,240. We went on to
 hold that a general assertion that all costs are unreasonable is insufficient to require the
 contractor to do more to prove reasonableness:



                                              113
              [T]he Navy also asserts that the disallowed costs are all
              improper on a price reasonableness basis. However, the
              Navy does not cite any specific evidence challenging the
              reasonableness of these costs, instead simply asserting that
              the costs are unreasonable. Based upon the evidence
              presented, including KBR's testimony that BE&K was the
              only offeror able to provide the required labor, and was the
              lowest bidder with the prices of the two other offerors being
              roughly 50% higher (finding 95), the Board finds that the
              cited costs were reasonable.

Id. at 178,250 (Emphasis added).

          We must consider if the AF satisfied FAR 3 l.201-3(a). The CO requested a
. DCAA audit of PE's claim. We hold that DCAA's audit satisfies the requirement for an
  "initial review of the facts." However, although DCAA found that PE's claimed costs
  were incurred, it relied on the AFCEE's technical_review to question all of the costs in
  PE's claim. As is obvious from this decision, AFCEE's technical review was wrong.
  Neither DCAA nor the AF challenged the reasonableness of any "specific costs" in the
  claims. (Findings 211-20)

       During the course of this litigation the Board ordered PE to file a Statement of
Costs (SOC). PE did so on 14 March 7014 (R4, tab 3001). The AF then had the
opportunity to audit the SOC. The AF did not request a DCM audit of the SOC.
Mr. McGeehin is the AF's construction accounting and pricing of damages expert
(finding 222). Mr. McGeehin reviewed the SOC and issued a report on 13 August 2014
(R4, tab 1447). This also satisfies the FAR 31.201-3(a) requirement for an "initial
review." Mr. McGeehin found that the SOC did not provide sufficient information to
determine the reasonableness of PE's estimate (bid) (id. at 9). The reasonableness of the
pre-award bid is separate and distinct from the reasonableness of SOC costs incurred after
award. Mr. McGeehin did not "question" mark-up rates for Bond, GL & BR Insurance,
Composite G&A and 10% profit (id. at 11 ). He did not take "exception" to Labor and
other Direct Costs (id. at 6-7), Labor Burden (id. at 7-8), and Subcontractor costs (id. at 8).
He found that "Timberline" and "Prism," accounting software used by PE to maintain its
books and records, was "widely used in the construction industry;' (id. at 9). _
Mr. McGeehin also issued an expert report, dated 18 June 2014, responding to
Mr. Rosenfeld's updated expert report (R4, tab 1451). He again questioned certain
estimates, but did not challenge any of the underlying incurred costs as unreasonable (id.).
Additionally, we carefully read all of Mr. McGeehin's testimony; we did not see testimony
that specific costs identified in the SOC were unreasonable (tr. 17 /5-100). Likewise, the




                                            114
PowerPoint version of his expert report used during the hearing does not address
reasonableness of PE's costs in any detail (ex. G-4). 108

       Just as in Kellogg Brown & Root Services, the DCAA's audit of PE's claim and
Mr. McGeehin's review of PE's SOC challenged all costs based on the AFCEE's flawed
technical review, but failed to challenge the reasonableness of any specific costs in the claim.
Such a blanket challenge to all costs is insufficient to satisfy FAR 31.201-3(a). Therefore, we
hold that PE has satisfied its burden to prove that its claimed costs are reasonable.

Causation

       Having found that PE's claimed costs were incurred, are allocable to DO 13 and
reasonable and there being no other assertions that the elements of FAR 31.201-2,
Determining allowability, are not met, our quantum analysis boils down to causation, or
which party is responsible for the cost. The importance of this conclusion is not lost on
the Board. It means that if we find that the AF caused a claimed cost, we will accept
PE's claimed amounts.

Design Impact Claim ($772,176)

       This claim in large part is to compensate PE for structural design work to make
the VQ resist progressive collapse. We start by addressing the obvious question of why
would PE be entitled to additional compensation for designing the VQ to resist
progressive collapse when that requirement was in RFP 8234? (Findings 29, 37-39) As
explained below, the answer is that PE was entitled to bid believing it had the right to
make unilateral changes to the VQ 35% design. In pre-bid questions and answers the
AF was warned that modifying the Baker double wall design to resist progressive
collapse would cost more (finding 30).

        PE devotes 110 pages to the design impact portion of its entitlement Section IV,
A. (app. br. at 62-172). As is made clearer in PE's four-page quantum discussion (id. at
446-50), this claim deals with design costs not construction costs. However, in order
for us to .decide this design impact claim we must deal with topics relating to
construction.

       PE claims that it was improperly prohibited from exercising its inherent rights as
the DBP03 contractor to change the structural design from Baker's double wall design .
to PE's single wall structural brick design (app. br. at 162). PE argues the AF should be
responsible for all the additional costs and delays caused by its direction that PE build to
Baker's design. The AF counters that there is no authority for such design flexibility in
the contract and, in any event, the claim is barred by the release in Mod. 2 (gov't br. at

108   The AF does not refer to·Mr. McGeehin's reports or testimony in support of its
        quantum argument (gov't br. at 481-82).
                                            115
347-350). PE agrees Mod. 2 settled both time and PE's general condition costs and
design costs associated with the structural brick proposal. However, PE contends Mod.
2's release does not cover the cost to correct the deficiencies in Baker's 35% design
(app. br. at 169-72).

       We start by considering what was required in Baker's CD contract as regards
progressive collapse. This is relevant because the contract required Baker to account for
progressive collapse and because ?I&T, part of Parsons, participated as an AF
contractor. Baker was the CD prime contractor with support from PI&T, not as a Baker
subcontractor, but as an AF contractor (findings 2, 3). We were not able to find Baker's
contract with the AF in the record (finding 2 n.3). PI&T's contract with the AF is in the
record (finding 3): PI&T was responsible for, "surveys, site analysis, constructability
reviews, design review comments, attendance at conferences for comment resolution,
and project cost validation" (finding 3). However, Baker was the prime CD contractor
and architect of record and as such was ultimately responsible for the 35% design.

        It appears that initially Baker did not intend to include structural design to resist
progressive collapse because the "25-meter standoff zone is maintained" (finding 5). This
fact is corroborated by Mr. Bennett who·worked for PI&T and testified that progressive
collapse requirement was in the SOW for the.Baker 35% design but it only played in the
location and orientation of the VQ not in the structural design (finding 10). However
there is ample evidence that the AF informed Baker and Baker agreed that it was required
to account for progressive collapse in its 35% structural design (findings 7-9). It was also
made clear in RFP 8234 that the VQ must be designed to resist progressive collapse
(findings 29-30, 37-39). The preponderance of the evidence before us leads us to find that
the CD contract required Baker's 35% structural design to resist progressive collapse and
not simply through the location of the VQ.

       · Next we consider the relationship between PI&T and PE. PE would have us find
that PI&T and PE were completely separate entities. PI&T was the DBP03 contractor
supporting .Baker during the CD contract (finding 3). PI&T and PE were both part of
Parsons. Sometime before 7 September 2004, PI&T novated IDIQ contract8703 to.PE
(finding 17). As early as May 2004, well before the novation, PE was involved in the
project (finding 16). In PE's Executive-Proposal Review/EPR it stated several times that
it performed/completed the 35% design (finding 58). PE was the DBP03 contractor for
the final design and construction contract (findings 65-66). Mr. Bennett was the architect
for both PI&T and PE during both Baker's CD contract and PE's construction contract
(finding 10). In August 2005 PE represented to the AF that "Parsons Evergreene was the .
DBP03 contractor during the CD phase" (finding 71 ). Based on these facts we consider
PE to be effectively the sam~ DBP03 for both contracts. We find that PI&T and PE are
the same entity. This conclusion raises another question. SOW paragraph 3.2.2.2,
Working Drawings, Construction, Delivery and Warranty states, "If the same DBP03
contractor performs these studies and investigations during the CD Phase and is awarded
the Construction Phase task order for essentially the same project, then the DBP03

                                           116
contractor is responsible for the results of its efforts during the CD Phase" (finding 28).
Although we consider PE to be the "same DBP03" contractor during both the CD and
construction phase, we do not hold PE responsible for Baker's flawed double wall design
for two reasons. First, PI&T attempted to persuade Baker to abandon the double wall
design in favor of the structural brick design during the CD phase (finding 6). Second,
PI&T was not the architect of record and the scope of PI&T's contract was limited to
"surveys, site analysis, constructability reviews, design review comments, attendance at
conferences for comment resolution, and project cost validation" (finding 3). Therefore,
the double wall design was not the "results of its [PE' s] efforts during the CD Phase" and
PE is not responsible for the failure of Baker's 3 5% design to account for progressive
collapse.

          Next we deal with PE's contention that, as DBP03 contractor it had the unilateral
  right to change the wall design from Baker's double wall to a single structural brick wall.
. In a letter entitled "Memo of Understanding Design/Build Procedures" dated 23 August
  2005, PE seemed to agree it would follow the Baker double wall design by stating the
  "Overall concept and expression of the building will follow the 35% design. (Materials.
  and design details will be further developed and designed through the 64% and 95%
  design.)." (Finding 71) Likewise, in notes from a meeting held on 1 September 2005, the
  parties "agreed that Parsons has the opportunity to improve on the conceptual drawings in
  the less developed portions of the drawings such as electrical, mechanical, structural, and
  civil. Architectural drawings are much more developed and the expectation is that the
  floor plans and room layouts are fixed and will not change. Parsons agrees with this
  understanding." (Finding 72) The Baker double wall design is shown on the architectural
  drawings (finding 30). The VQ 35% drawings included a note that required the contractor
  to complete design and construction "in accordance with the intent of all design(s)
  represented in the (RFP) construction documents" and "must follow the full design intent
  represented in the RFP construction documents" (finding 12). We consider this drawing
  note clear and unambiguous and disposhive of this issue. We find that Baker's double
  wall design as shown on the 35% construction drawings was the "design intent represented
  in the RFP construction documents." We interpret this note to require PE to adhere to
  Baker's double wall hollow core plank design. 109. Without more, PE was not free to vary
  from Baker's design without AF approval. However, we must also consider if pre-bid
  communications affect our interpretation of the drawing note.

       During the .bidding period there were a series of pre-bid questions and answers
that dealt with progressive collapse and other design matters. A 22 March 2005 memo


109
      We considered PE's witness testimony, including expert testimony, urging us to find
        that a design-build contractor has the right to select the design it prefers. We find
        this testimony unpersuasive when faced with explicit language on the 35%
        drawings that require PE to follow the "full design intent represented in the RFP
        construction documents," i.e., the Baker design (finding 12).
                                             117
 included question No. 6 asking that, since the VQ 35% design did not address
_progressive collapse, was it required in the final design. The answer was:

                 Yes, progressive collapse features are required for VQ ! The
                 architect of record resulting from the award of a task order
                 under the DBP03 concept will be expected to include ·this
                 feature in the final stamped drawings.

 (Finding 29)

          Another set of questions and answers sent to PE on 7 and 20 April 2005 included
  question No. 3 that expressed concern over the adequacy of the 35% drawings to
  "satisfy the progressive collapse requirements" and asked, "Are we allowed to substitute
  assemblies and structural systems in order to be compliant with the progressive collapse
  requirement provided the performance requirements and appearance of the building are
  satisfied." This question specifically points to Section 2· on drawing A-302 where the
. third floor roof load is transferred to the third floor hollow core plank instead of the
  second floor reinforced concrete masonry w~ll. This design was at least one example of
  the 35% design's failure to address progressive collapse. The question included the
  note, "A design to provide a facility compliant with the Progressive Collapse criteria
  would require substantial work at a considerable additional compensation." The AF's
  answer was:

                  Yes, the drawings are concept only. You have the
                · responsibility to generate the construction details and
                  drawings. Tim Morrison, AFCEE/HDM

 (Finding 30) A copy of the 20 April 2005 email was sent to CO Macdecy (id.). This or
 a similar answer was repeated many times in the pre-award questions and answers
 (finding 31 ). There was no testimony or other evidence in the record about the parties'
 understanding or communications about the note warning "substantial work at a
 considerable additional compensation" would be required to make the VQ compliant
 with progressive collapse. In interpreting the question we read the question and note
 together. NVT Technologies Inc. v. United States, 370 F.3d 1153, 1159 (Fed. Cir. 2004)
 (When interpreting the contract, the document must be considered as a whole and
 interpreted so as to harmonize and give reasonable meaning to all of its parts.). Taken
 as a whole, question No. 3 asks if bidders can substitute a different design to resist
 progressive collapse and if not, it would cost a lot more to do so with the Baker double
 wall design. The AF's answer clearly told the bidders that they could choose a different
 design. It specifically did not say only with AF approval. We have a conflict between
 the drawing note requiring PE to adhere to the Baker 35% double wall design and the
 AF's answers to pre-bid questions.                   ·



                                             118
         Mr. Hillestad recognized this conflict and expressed concern over the bidder's
questions in a 14 April 2005 email, "what latitude, if any, we are willing to allow the
contractor in departing from specific criteria provided in the concept design" (finding 35).
The record does not include further evidence of any response to or discussion of
Mr. Hillestad's c.oncern. We conclude the issue raised by the questions was understood
';Vithin the AF when the answers were sent to bidders.

       On 15 April 2005, Mr. Hillestad sent out an email to bidders that stated:

             · Effective this date the time for submittal of additional
                                                                        1
               questions is now dosed .... Ambiguities and/or patently
               obvious errors in the concept design criteria will henceforth
               be resolved after receipt of proposals and prior to award.

(Finding 36) We find that because the bidders recognized that Baker's 35% design
failed to resist progressive collapse, there was a ""patently obvious error in the concept
design" that was not "resolved prior to award."

       In a final email before award, dated 19 April 2005, addressing progressive
collapse, Mr. Hillestad stated:

              (2) When addressing the progressive collapse design
              requirements for the VQ at McGuire, the specified threat
              level is "LOW".               ·
                                           """
              Further clarification should not be required. To the extent
              mis-information, erroneous, or misleading direction is
              contained in the RFP, appropriate corrections shall be
              accomplished in the award document(s).

(Finding 39) This email did ~othing to clarify the confusion relating to how to deal with
progressive collap~e.

       There is no question that RFP 8234 required the VQ to be designed to resist
progressive collapse (findings 29-30, 37-39). Above, we interpreted the drawing note on
the VQ 35% drawings to require PE to adhere to Baker's double wall design. However,
the AF's repeated statement in responses to pre-bid questions and answers that "the
drawings are concept only. You have the responsibility to generate the construction details
and drawings" is a concern. (Findings 30-31) This is especially true of question No. 3 that
specifically questions the 35% structural design ability to resist progressive collapse and
warns that "substantial work at a considerable additional compensation" if the-Baker
double wall design was followed (finding 30). We have held that pre-bid questions and
answers are not "wiped from the record by formal execution of the contract." Northwest
Marine, Inc., ASBCA No. 43502, 94-1 BCA ,i 26,521 at 131,999. In Metcalf Construction

                                            119
Co. v. United States, 742 F.3d 984 (Fed. Cir. 2014), the Federal Circuit held that pre-bid.
questions and answers used by bidders in estimating and submitting bids are highly
relevant to the post award interpretation of contract provisions. Id. at 995-97. ·In earlier
decisions we have held the same. Ogden Allied Services Corp., ASBCA No. 40823, 91-1
BCA ,i 23,455 at 117,671 (appellant has the right to rely on pre-bid questions and answers
as to matters of contract interpretation); Bogue Electric Manufacturing Co., ASBCA
No. 16958, 74-1 BCA ,i 10,513 at 49,794 (questions,and answers at a pre-bid conference
can properly be referred to for the purpose of evaluating the reasonableness of appellant's
interpretation). The Court of Federal Claims follows the same law. Aero Corp., S.A. v.
United States, 38 Fed. Cl. 739, 762 (citing Sharpe Refrigeration, Inc. v. United States,
30 Fed. Cl. 735, 739 (1994)) (Official statements made during pre-bid conferences to
clarify contract language should be utilized in resolving questions of contract
interpretation.). Therefore, contrary to the AF's position that the pre-bid questions are
irrelevant (finding 80), we find that PE was entitled to rely on the AF's answers to pre-bid
questions that "the drawings are concept only. You have the responsibility to generate the
construction details and drawings" and allowed PE to "substitute assemblies and structural
systems in order to be compliant with_ the progressive collapse." (Finding 30) We find
that as a result of the pre-bid answers provided by the AF that conflicted with the notes on
the 35% drawings, the AF bestowed upon PE the unilateral right to change Baker's double
wall design to structural brick.

        There is another problem with the AF's argum~nts. The AF hired a structural
engineering consultant, JQA, to evaluate Baker's 35% design. JQA agreed with PE that the
Baker design did not resist progressive collapse and would require structural changes
(finding 79). It is undisputed that the AF was warned in Question #3, that making the Baker
design resist progressive collapse would require "substantial work at a considerable
additional compensation" (finding 30). · The AF was again warned at the 25 January 2006
"summit" meeting that there would be a cost impact if PE was directed to build the double
wall design (finding 84). The record supports our conclusion that PE's structural brick
design accounted for progressive collapse at no increase in price (findings 73, 76, 78, 82).
Mr. Williams, AF architect and project manager, supported the change to structural brick
(finding76). There is evidence in the record that the reason the structural brick design was
rejected was th~ ~ppearance of the brick (finding 84). However, PE assured the AF that
the structural brick would meet the base's color and size standards (findings 74, 81, 84).
Even Mr. Rola agreed the structural brick could be matched with the brick MAFB wanted
(finding 81). In MA. Mortenson Co., ASBCA No. 39978, 93-3 BCA ,i 26,189, a case
involving a similar design-build contract, we held that the government warranted the
adequacy of the 35% "concept submittal" drawings. Id. at 130,367. Therefore, the AF
warranted that the Baker 35% double wall design would account for progressive collapse
and the record overwhelmingly indicates it did not. Given this warranty, the pre-bid
answers, all the facts the AF knew and the right it effectively bestowed on PE to change
the 35% design, we conclude there was no right or good reason to reject the structural brick
design. Having done so we apply the logic of MA. Mortenson and allocate the additional
cost of design and construction required to make the Baker 35% design resist progressive

                                           120
 collapse Jo the AF. We must now consider if the release in Mod. 2 affects this allocation
 of risk.

           During the discussions with the AF about structural brick, PE developed the 65%
   design assuming it would be allowed to use structural brick. When the AF directed PE
   to build to the Baker 3 5% design, PE effectively had to start the 65% design over' and
   redesign the entire interior of !he VQ necessitating additional time. (Findings 84-87) In
   Mod. 2, dated 6 June 2006, the parties agreed to extend the period of performance by
    126 days to account for the time spent on the structural brick issue (finding 92). Mod. 2
   extended the period of performance to 9 July 2007 and included a release. The release.
   covered "any delays or costs rising from varying design approaches, including delays in
   reviewing approaches" relating to the structural brick issue (finding 92). The AF
   contends that this release covers all costs claimed by PE to modify the Baker 35%
   design to resist progressive collapse (gov't br: at 347-50). PE counters that the release
   is limited to evaluation of the structural brick design not subsequent design and
   construction costs (app. reply br; at 81-84). PE states that Mod. 2 "was a settlement of
   both time ( 4 months of time lost while the parties debated PE's Structural Brick Design
   solution), PE's General Conditions costs associated with that time, and design costs
   incurred during that period to support the Structural Brick proposal" (id. at 82). The
   general principles of contract interpretation apply to release language and if the
   language is clear and unambiguous it inust be given its plain and ordinary meaning.
   United Launch Services, LLC, ASBCA No. 56850 et al., 16-1 BCA 136,483 at
   177,764. We consider the release in Mod. 2 to be clear and unambiguous. It is limited
   to "delays and costs arising from varying design approaches including delays in
   reviewing approaches." This can only be interpreted as referring to the structural brick
   "design approach" and not the additional costs of correcting the Baker 35% design. We
   agree with PE's interpretation and are not persuaded by the AF's argument to expand
· ·the clear language of the release to cover the cost of fixing the Baker 35% design. The
   AF is responsible for the additional design and construction costs incurred to change the
   Baker 35% design to resist progressive collapse.

         In the quantum section of its brief PE discusses what design costs are included in
 the claimed $772,176 (app. br. at 446-50). Specifically, PE wrote:

               Parsons completed its 100% design within its bid budget,
               but the budget th~reafter overran as the contractor was
               forced to (a) make ongoing design changes to accommodate
               the heavy structural wall system and hollow core planks
               floors on which the Air Force insisted and (b) develop
               design and pricing for multiple iterations of "shopping list"
               proposals demanded by the Air Force.




                                             121
(Id. at 446) 110 We found above that the AF is liable for (a). However, (b) design costs
related to the "shopping list," is another matter. The shopping list was formalized in
Mod. 5 wherein the parties agreed on a price of $499,441.00 (finding 149). First, we would
expect PE to include its design costs in the price for the shopping list. PE failed to enter
evidence on this point in the record or address this in its brief. Second, Mod. 5 includes a
release that also included, PE "will not release the government in a 'blanket' fashion for all
events that have occurred on the project to date." (Finding 149) Neither party discussed
this release. Because of the questions surrounding design costs for the shopping list,. we
find that PE failed to meet its burden of proof as to AF liability for (b ). We will have to
apportion the $772,176 to account for this split in liability. Before we -move on to that, we
must deal with PE's characterization of its claim.

        PE characterizes this claim as using a "Modified Total Cost methodology" (MTCM) ·
(app. br. at 447). We disagree. That is_because PE tracked its design costs and calculated
the claim on "design costs as booked in the contemporaneous job cost records" (id. at 446).
That means that all of the costs claimed are for the design work and nothing else. A total
cost or modified total cost approach does not specifically track costs for a single effort as
was the case for the design effort. We faced a similar situation in Raytheon Missile Systems
Company, ASBCA No. 59258, 15-1BCAi136,102:

                        The Navy characterizes Raytheon's quantum analysis·
                as a "total cost" claim and structures much of its quantum
                briefs argument around the elements of proof required to
                sustain a total cost claim (gov't br. at 27-36). We agree with
                Raytheon, this is not a total cost claim. See, e.g., Raytheon
                Co. v. White, 305 F.3d 1354, 1365 (Fed. Cir. 2002) ("Under
                the total cost method, the measure of damages is the
                difference between the actual cost of the contract and the
                contractor's bid."); WRB Corp. v. United States, 183 Ct. Cl.
              · 409,426 (1968) (total cost claim is difference between
                actual and estimated expenses). Rather, Raytheon's approach
                to quantum identifies the number of gallons of fuel priced at
                $25.00 that it loaded into Contract 0569 missiles and, with
                certain other adjustments, simply calculates quantum based
                on the $11.00 difference between $14.00/gallon Raytheon
                bid and the $25.00/gallon charged. This approach is a direct
                quantification of the damage caused by the Navy's breach.

110
      Later in its brief PE changed its description to design overruns "attributable to
         defects in the Government's 35% design, unreasonably protracted approval
         processes (e.g., standing seam metal roof), and/or ongoing design changes (e.g.,
         the 'shopping list')" (app. br. at 449). We do not understand how the "approval
         process" for the SSMR would cause design changes so we disregard it.

                                            122
Id. at 176,260. PE's design claim is also a direct quantification of damages because all
of the costs claimed are design costs just as all the costs claimed in Raytheon were fuel
costs. The fact that PE took responsibility for some of the design costs recorded in its
books and records does not make this a MTCM claim. Therefore, we need not go into
the elements of a MTCM as PE does in its brief111 (app. br. at 447-50). We do however,
have to separate design costs for correcting the Baker design from design costs for the
"shopping list." We generally t1:nderstand from the record the relative complexity of the
design effort to resolve progressive collapse and the "shopping list" which gives us the
ability to estimate relative costs. We conclude that the design for progressive collapse
is far more complex than for the shopping list. We estimate that the design cost for the
shopping list would be about $50,000 and subtract that amount from PE's claim. PE is
entitled to $722,176 for its design impact claim.

Delay and Extended Overhead

        We are about to consider the first delay claim. There will be other delay claims and
also constructive acceleration claims. Before we proceed, we·set forth how we will deal .
with delay and constructive acceleration. A delay claim and constructive acceleration
claim are two distinct claims: "A constructive acceleration claim, although arising out of
the same facts as a delay claim, has been held to be a separate claim because it requires
proof of the additional element of an express or implied Government order to overcome
the excusable delay." Gaffny Corp., ASBCA No. 37639 et al. 94-1 BCA 126,522 at
132,012 (citati.on omitted). Damages are calculated differently for each. Delay damages
are based on a daily cost of field overhead multiplied
                  .                               .
                                                         by. the number of delay days.
DANAC, Inc., ASBCA No. 33394, 97-2 BCA 129,184 at 145,148. Acceleration damages
are the direct costs caused by the acceleration, "Unlike the delay and impact claims,
appellant's claim for acceleration, as finally adjusted, comprises principally extra direct
costs [with burden] that were incurred during the acceleration period." Fischbach &
Moore International Corp., ASBCA No. 18146, 77-1BCA112,300 at 59,241.

Schedule Delay/Extended Site Overhead-Daily Rates

       We discussed PE's daily rates in our findings of fact (finding 223). We need not
delve deeply into the accounting information in the record because we rely the AF's




111
      If we did it would not affect the outcome.
                                             123
    expert, Mr. McGeehin's, adjustment to PE's rates increased three out of four of them
    (id.). Accordingly, we will us-e PE's daily rates for delay as follows:

                        Time Period                           Daily Rate
                13 July 2005 to 31 July 2006                    $1,696
                1 Aug 2006 to 3 1 Aug 2007                      $7,712
                1 Sept 2007 to 31 May 2008                     $13,548
              1 June 2008 to 31 October 2008                    $4,688

    (Id.) These daily rates do not include mark-up (id.).

    Delay in Issuing Foundation NTP 112

           The TLF Site Civil/Structural 100% for Construction drawings are dated 17 April
    2006 (finding 90). The VQ Site Civil/Structural (100%) are dated 27 April 2006 (id.). The
    AF did not issue a limited NTP for foundation work. The unlimited NTP was issued on
    10 July 2006 (finding 98). Mr. Evans contends that the 83 days between 18 April 2006 and
    10 July 2006 are critical path delays. The AF counters with evidence that PE's designs
    were not complete and that CO Brown issued the final NTP as s<;>on as the designs were
    complete (gov't br. at 138-39). PE responds in its reply brief that Mr. Evans "researched
    the review commerits" and found them minor (app. reply br. at 90). As explained below,
    we need not attempt to sort out if the comments were "minor" or not.

r           We rely on the actual dates on the drawings. The VQ Site Civil/Structural
    (100%) drawings are dated 27 April 2006 (finding 90). That means that the foundation
    design work was completed no later than 27 April 2006. We agree with Mr. Evans that
    the VQ foundations were on the critical path. We see no reason why the AF could not
    have issued a LNTP for the VQ foundations on or about 27 April 2006. There are 74
    days between 27 April 2006 and)O July 2006. We give the AF four days in which to
    issue the foundation LNTP. Therefore, we hold the AF responsible for 70 days of
    excusable compensable delay.

          This 70-day delay falls within period one where the daily rate is $1,696.
    Therefore the extended overhead is $118,720 (70 x $1,696). We follow DCAA's
    method of calculating markup (R4, tab 213 at 39):




    112
          We were confused in that PE identified this as "design impact" delay (app. br. at
            483). Mr. Evans delay analysis Review Period 2 explains this is foundation NTP
            delay (R4, tab 3004 at 20) but also as design delay (id. at 21). We think
            foundation NTP delay is accurate.
                                               124
                 Description          Audit Determined Rate      Amount w/ Markup
          Extended Overhead                                      $118,720
                  Markups
          Bond ·                       0.6375%                       $757
          GL & BR Insurance            0.8316%                       $987
          Subtotal                                               $120,464
          Composite G&A                2.8600%                     $3,445
          Expense
          Profit                      10.0000%                    $12,046
          Total                                                  $135,955

Clean Site Delay 113

        In June 2006 PE asked the AF for a Certificate of Clean Site but none was
forthcoming (finding 95). In July 2006 PE's subcontractors were working on footings for
the VQ. Because of concerns over environmental contamination in the area where the
swimming pools had been demolished, on 7 July 2006 PE directed its subcontractors to
stop work on the VQ footings (finding 96). The AF issued an unlimited NTP on IO July
2006 (finding 98). 1-14 On 4 August 2006, PE's concerns over VQ site contamination were
resolved and PE lifted its stop work order (finding 100). We find that since this -yvas an ·
area where two swimming pools existed and the AF contracted with another contractor to
demolish the pools, the AF was responsible for ensuring the are~ was not contaminated
with environmental hazards. PE's concern over environmental contamination was
reasonable. We allocate 28 days of delay, from 7 July 2006 to 4 August 2006, to the clean
site delay. The AF kresponsible for this delay. We agree with Mr. Evans that this
foundation work was on the critical path (R4, tab 3004 at 25). Therefore the delay was
excusable and compensable. This delay spans two daily rate periods - 25 days in July at
$1,696/day and 3 days in August at $7,712/day for a total of $65,536 (25 x $1,696 + 3 x
$7,712). We follow DCAA's calculation for markup:

               Description            Audit Determined Rate      Amount w/ Markup
          Extended Overhead                                      $65,536,
                 Markups
          Bond                       0.6375%                       $418
        ' GL & BR Insurance          0.8316%                       $545
                 Subtotal                                        $66,499



113
      There was also confusion concerning this delay because even though Mr. Evans
           discussed the clean site facts (R4, tab 3004 at 26-27), he did not appear to
          include it in his schedule analysis (id. at 25-26).
114
      It is unclear why PE started work on the footings before the unlimited NTP.
                                             125
         Composite G&A ·              2.8600%                     $1,902
         Expense    -

         Profit                       10.0000%                   $6,649
         Total                                                  $75,050

Earthwork Differing Site Condition Delay

       This section consists of two claims. There is the claim for $582,375 in direct
costs (app. br. at 450-55) and the claim for $1,995,993 in delay damages (id. at 483).
We deal with them together. There are three components involved in these two claims:
unsuitable fill, organic material, and asbestos pipe.

         Unsuitable Fill ($178,425)

        As early as April 2004 PE expressed concern over whether the AF had properly
monitored the demolition contractor "to ensure that select fill was placed in the pool
excavation to avoid 'unforeseen site conditions"' (finding 16). This concern turned out
to be legitimate.

        The original SOW in RFP 8234 stated that.site demolition was not required and that
the site was "clean and ready for construction" (finding 19). Amendment No. 2, dated
5 April 2005, deleted these statements (finding 27). Mr. Morrison, drafter of Amendment
No. 2, explained that it was due to the fact that there were electric utilities in the area, bu~
that the fill dirt was still supposed to be clean (finding 27). In a 22 March 2005 memo
listing pre-bid questions and answers, the AF's answer to question No. 8 stated "the site is
clean and ready for construction" but the fill was not compacted (finding 29). The AF's
answer to question No. 13 stated there was no "Geotech report" on the demolished pools
and that bidders should assume the soil content is "at least equivalent to the worst condition
level permitted in the Base Demo 'contract requirements" (finding 29). In questions and
answers sent to bidders on 7 April 2005 the AF's answer to question No. 61 stated the ·
"backfill is clean but not compacted. Use the worst soil boring sample for calculations"
(finding 32). Mr. Temchin and Mr. Radin testified that PE relied on the AF's answers in·
bidding and believed the backfill would be clean and ready for construction. (Finding 34)
We discussed the legal importance of pre-bid questions and answers above in our decision
on structural brick. PE is entitled to rely on these pre-bid questions and answers.
Therefore, notwithstanding Amendment No. 2's removal of the language, "The site is clean
and ready for construction," subsequent answers that the fill dirt was clean did, as
Mr. Temchin testified, put the representation that the fill dirt was clean back in the contract
(finding 34).

       In mid-August 2006 test pits were dug in the TLF and VQ areas (finding 103). On
16 August 2006 PE notified the AF that the test pits had uncovered "wood, concrete
rubble, metal, wire, charred debris and other construction debris" that indicated the
demolition contractor had not backfilled with clean material (findings 103-04). On
     i
                                            126
 22 August 2006 PE stopped work on excavation at the VQ due to the unsuitable material
 found in the test pits (finding 104). We find PE was entitled to stop work because that is
 what the differing site condition clause mandates. Lean Construction and Engineering
 Co., ASBCA No. 58995, 15-1 BCA ,r 36,159 at 176,462 ("The clause requires that such
 notice be given promptly and before the conditions are disturbed."). Due to funding issues
"the AF did not direct PE to start removing and disposing of the unsuitable materials until
 2 November 2006. The direction imposed a $70,000 price ceiling. (Finding 105) We find
 that the AF failed to properly supervise the demolition contractor's work. We find that
 before award the AF represented that the soil would be clean. This is a Type 1 differing
 site condition in that the AF represented that backfill from the demolitfon would be "clean"
 and it was not. PBS&J Constructors, Inc., ASBCA Nos. 57814, 57964, 14-1 BCA
 ,r 35,680 at 174,654 ("A Type I differing site condition claim is dependent on what is
 'indicated' in the contract."). The AF is responsible for any unreimbursed costs (over the
 $70,000), of removing the unsuitable material, replacing it with suitable compacted
 backfill and the 72 days between 22 August 2006 and 2 November 2006. 115 . We agree this
 delayed VQ foundation work that was on the critical path (R4, tab 3004 at 24-25, 30-31).
 We also find that this delay was excepted from the release in Mod. 3 (finding 123). It is
 excusable compensable delay, however, this 72-day delay runs concurrent with the organic
 layer delay discussed below and we account for it below. We accept PE's costs; the AF is
 liable for $178,425 to resolve the unsuitable soils problem at the site.

          Organic Material ($297,274)

       Also on 22 August 2006 PE found organic material in two test pits (finding 107).
PE had PSI perform borings to map out the extent of the organic material (id.). PSI
recommended that the organic layer be removed (finding 108). Even though the organic
layer was about five feet below the elevation of the footings, PE concluded it needed to be
removed because of possible differential settlement (findings 109, 115). Mr. Rola took the
position that the organic layer was deep enough it did not need to be removed (findings
111, 116). CO Brown did not agree with Mr. Rola (finding 111). However, the parties
spent valuable time going back and forth discussing the need to remove the organic layer
because of Mr. Rola' s opposition 116 ( findings 111, 114, 116). By the end of October 2006
PE decided to remove the organic layer without AF permission. We find that the organic
layer was a Type 1117 differing site condition because the geotechnical report did not list
organic matter as a subsoil condition (finding 57) and, in the circumstances here, this
absence should be construed as a representation that there was no such organic material

 115
       Mr. Evans shows the unsuitable fill delay running from 27 June 2006 to 21 August
          2006 (R4, tab 3004 at 31 ). This is incorrect and we think Mr. Evans confused
          unsuitable fil with contaminated fill.
 116
       In an apparent attempt to justify Mr. Ro la's opposition, the AF included a 2014
          report in the record from another contractor, Versar, agreeing that it was not
          necessary to remove the organic layer (finding 114). We are not persuaded.
117
       Organic material could also qualify as a Type II differing site condition.
                       \


                                             127
 present. The fact that Boring B-OlA found "trace amounts of organics'; (id.) is not enough
 to put PE on notice of the organic material it found. PE was entitled to rely on the
 geotechnical report and associated boring logs that indicated what the subsurface soil
 conditions would be. PBS&J, 14-1BCA135,680 at 174,653 (borings are the most
 significant indication of subsurface conditions). We also find that PE was the engineer of
 record and bore the risk associated with possible differential settlement that may have been
 caused by the organic layer. CO Brown recognized PE's risk (finding 111). Accordingly,
 it was PE's right to decide to remove the organic layer without interference from the AF,
 which it encountered from Mr. Rola. Right or wrong, Mr. Rola did not have the right to
 second guess PE that bore the ultimate responsibility for the stability of the VQ. We find
 the AF responsible for the cost associated with the organic layer and associated critical
 path delay discussed below. We are satisfied that PE reasonably incurred a cost of
 $297,274 for dealing with the organic layer and find the AF liable for that amount.

          "Transite" Asbestos Pipe ($106,676)

         On 3 November 2006 when PE started to remove the organic layer it encountered
 "transite" asbestos insulated pipe. PE notified the AF of a differing site condition and
 stopped work. (Finding 110) We have determined that while the pipe was shown on
 drawings, the fact it was "transite" asbestos pipe was not disclosed (id. at n.48). At AF
 direction, PE contracted to have the asbestos pipe removed and the work was completed
 by 1 February 2007 (finding 119). This was a 90-day delay from 3 November 2006 to 1
 February 2007. PE was then able to restart removal of the organic layer material that
 was finished on 28 February 2007 (id.).

         Mr. Rola took the position that the asbestos pipe was not a differing site
 condition (findings 113, 118). CO Brown disagreed (finding 113). We agree with
 CO Brown. We find that the drawings indicating the location of utilities did not identify
 the "transite" asbestos pipe. We find that the asbestos insulation is a Type 1 differing
 site condition because PE was entitled to rely on the AF's drawings that did not indicate
 the presence of asbestos. The AF is responsible for any unreimbursed cost of abatement
 of the asbestos insulated pipe and associated delay.     .               .

         PE's scheduling expert, Mr. Evans, found that the delay of the foundation work at
  wing A of the VQ that was caused by the unsuitable fill, organic layer and asbestos pipe
  was on the critical path (app. br. at 365-68). The AF's scheduling expert, Mr. Ockman,
. used the "time impact analysis" method which is different from the CPM analysis used by
  Mr. Evans. We do not comment on the relative merits of these to methodologies because
  we understand both to place the foundation work at VQ Wing A on the critical path.
  Mr. Ockman, however, assigns responsibility for the contaminated fill (Time Impact No. 5)
  and "substandard fill" 118 and asbestos pipe (Time Impact No. 6) to PE because it failed to

 118
       Mr. Ockman's "substandard fill" refers to the fill improperly placed in thicker·
          layers, not the construction debris (R4, tab 1739 at 20).
                                              128
prepare subgrade and locate the asbestos pipe {gov't br. at 323-24). We reject this
allocation of responsibility. Also, we did not see the organic layer in Mr. Ockman's Time
Impact Nos. 5 and 6. We accept PE's costs of $106,676 to deal with the asbestos pipe and
find the AF liable for that amount.

         Cumulative Delay/Earthwork

        In our findings of fact, we calculated 191 days of critical path delay for unsuitable
fill/organic layer/asbestos pipe from 21 August 2006 to 28 February 2007, deducting nine
days for replacing the improper fill, we have 182 days of delay (finding 121 ). This is
excusable compensable delay. This delay is in daily rate period two where the rate is
$7,712/day. Therefore, the extended overhead for the earthwork delay is $1,403,584
(182 X $7,712)'.

       Again we follow DCAA's calculation to markup:

                Description ·       Audit Determined Rate      · Amount w/ Markup
         Extended Overhead                                     $1,403,584
                 Markups
         Bond                       0.6375%                        $8,948
         GL & BR Insurance         ·0.8316%                       $11,672
                 Subtotal                                      $1,424,204
         Composite G&A              2.8600%                       $40,732
         Expense
         Profit                     10.0000%                    $142,420
         Total                                                 $1,607,356

Mod. 3

        On 20 March 2007 the parties signed Mod. 3 extending the contract by 171 days to
27 December 2007 and decreased the contract price by $230,337 (finding 124). The
$230,337 was calculated multiplying the liquidated damages daily rate of $1,347.00 (id.)
by the 171-day extensiQn. In our prior section, we found 182 days of excusable delay;
later in this decision we address concurrent delay that extends the delivery period into June
2008, well beyond 27 December 2007. Therefore, liquidated damages were not running
during the 171-day extension in Mod. 3. The release in Mod. 3 was limited by PE' s
extensive reservation of its right to claim the $230,337 and reserved claims associated with
unsuitable fill, organic layer, asbestos pipe, unusually severe weather, NTPs, delay in
approving submittals, and delay in approving roofing (finding 123), Given all of these
exclusions, the release essentially has no effect on PE's claims. Given our decision that
the 171 days was excusable delay, Mod. 3 is no longer valid. We find PE is entitled to the
return of the $230,337, however, PE "adjusted" this amount in its quantum section to
$228,990 and that is the amount we award to PE.

                                            129
High Temperature Hot Water (HTHW) Differing Site Condition Claim ($784,186)

       The TLF and VQ were connected to MAFB's HTHW system that required PE to
trench and install new HTHW pipe (findings 22, 127). In so doing, PE contends it ran ·
into various differing site conditions such as underground utilities that were not
disclosed on AF drawings causing it additional time and expense. It also contends that
AF delay pushed the work into winter that also caused additional expense. This
contention is supported by dated pictures of some of the conditions encountered by PE
which indicate that they were discovered in late November to early December 2007
(finding 131).

        RFP 8234 included comments stating that "survey base mapping" and "Site Utility
Plan" show utilities (finding 56). However, the 35% drawings do not extend to areas near
East Arnold Ave. where many of the obstacles encountered by PE were located (findings
127, 130-33). From this the AF concludes that it "made no representations in the 35%
drawings included in the RFP regarding existing utilities beyond those depicted" (gov't br.
at 189). According to the AF it cannot be liable for a Type 1 differing site condition
because it did not represent the condition of the site. We disagree. The AF must also
assume responsibility for the representations of utilities on the G-Tab drawings provided
to bidders before award (findings 11, 13, 32, 134), and these G-Tabs, in fact,
misrepresented the utility locations. G-Tab drawings were Auto CAD (electronic) "maps"
showing all utilities. They were provided to all bidders (finding 134). Mr. Morrison
testified that the G-Tab drawings showing the utilities were accurate (finding 32, n.25).

        The subject of utilities was addressed in pre-bid questions and answers. In several
answers bidders were told that utilities were shown on "G-Tab" drawings made available
to the bidders (findings 11, 13, 32). Notes on 35% drawings informed bidders that utility
locations are approximate based on "G-TAB MAPPING" (finding 13). Bidders were
warned that "there are a lot of existing utilities along East Arnold gas, phone, water, etc.
(both sides). Extreme care will be required when approaching and crossing east Arnold
with HTHW lines." (Finding 32, #42) When asked about utility demolition, bidders were
told to use "existing documentation and drawings to complete the final designs and project
requirements" (finding 32, #51). When asked if there are any HTHW manholes required,
bidders were told "The DB+ Contractor will need to make this determination" but that two
new manholes would be required (finding 32, #68). These new manholes did not include
manhole #3 5B.

        After award of DO 13 on 13 July 2005, PE developed the 100% "for construction"
drawings for the TLF and VQ dated 24 July 2006 (finding 99). We hold that the 100%
drawings embodied the utility locations provided before award on the 35% and G-Tab
drawings. Because the G-Tab drawings are Auto CAD they were not in a useable format
for us to review. We can however, find a proxy for what was in the G-Tabs by
examining the 100% drawings made by PE, which we based on pre-bid information

                                           130
provided by the AF. Therefore, even though produced by PE after award, we use the
100% drawings in our differing site condition analysis because they incorporated pre-
award utility information provided by the AF.

         We also consider the post award efforts taken to locate all utilities. Of particular
interest to us are the notes on 100% VQ drawings C-101, C-102, and C-103 that state,
"UNDERGROUND UTILITIES SHOWN HEREON WERE FIELD LOCATED BY
MASTER LOCATORS, INC. BETWEEN 08/23/05 & 08/31/05" (finding 128). The
note on drawing C-107 states, "UTILITY LOCATIONS AND INVERTS ARE BASED
UPON FIELD SURVEY AND BEST AVAILABLE DATA" (finding 129). Neither
party presented evidence to explain Master Locators' activities or the "field survey." We
take this language at face value and conclude that at some time somebody had Master
Locators go to the site to conduct a "field survey" to locate utilities and that information
was incorporated into the 100% drawings. We infer that this field survey·included use of
some device to locate buried utilities such as a magnetometer. We also know that
Mr. Temchin testified that PE was never given the G-Tab drawings of abandoned utilities
(finding 13). The record is insufficiently developed for us to understand what abandoned
utility information was shown on the G-Tab drawings or why the AF would not give
them to PE. We cannot speculate on what these G-Tab drawings show and only point
out that they were withheld. In addition to the Master Locators' field survey and G-Tab
drawings, the AF marked utilities with various colors of paint before issuing a "dig
permit" to PE (finding 130). The drawing notes each have a statement requiring PE to
verify all utility locations before starting construction (findings 128-29). We find that PE
satisfied its obligation to verify utility locations based on the 35% and G-Tab drawings,
the survey by Master Locators, and the AF' s marking of utilities for the dig permit. We
do not know what more/PE could have done. To the extent PE encountered utilities not
shown on the 100% drawings, we find a Type 1 differing site condition.

        PE itemized ten differing site conditions. In our findings of fact we found that
100% VQ drawing C-107 showed the storm sewer and telephone lines that PE contends
are differing site conditions (finding 133). Since what is shown in picture DC #3 was also
shown on the drawings, DC #3 is not a differing site condition. We also disagree with PE
on DC #9 relating to the new manhole #35B (finding 131). RFP 8234 directed that the
contractor shall verify and accept the "exact conditions" at the site (findings 11, 13, 20).
The existing manhole #35 is not a differing site condition because it was in plain sight and
Mr. Burdick admitted that it was obvious that it was not big enough to connect the new
HTHW lines (finding 131). Top Painting Co., ASBCA No. 57333, 12-1 BCA ~ 35,020 at .
172,082 ("Visible rust, mold and mildew on the generator housing and AST surfaces when
Top submitted its ·proposal for the contract do not qualify as a DSC under the quoted DSC
clause, because they were neither 'subsurface or latent' nor 'unknown."'). By not looking
at manhole #35, PE assurped the risk that it would be too small to connect its new HTHW
lines (finding 131). Therefore, we sustain differing site conditions #1, #2, #4, #5, #6, #8,
#10 and #11 and deny #3 and #9 (including the cost of manhole #35B). The AF is
responsible for the additional cost caused by the differing site conditions we sustain.

                                            131
        PE claims $784,186 for the differing site condition portion of its claim, which we
accept but must reduce to account for our denial of differing site conditions #3 and #9.
PE refers to the October 2014 Rosenfeld Rebuttal report for "full original documentation
of the HTHW pricing." (App. br. at 455; R4, tab 3003 at 130-47) Most of the cost data
does not relate to the specific differing site conditions. As to damages, we conclude from
the pictures and drawings that the manhole work was the most expensive and that we can
treat the remainder of the differing site conditions as similar in impact. Therefore, we
reduce the claimed amount by $150,000 for the manhole DC #9 and reduce the claimed
amount by $50,000 for DC #3 for a total reduction of $200,000. We sustain the HTHW
differing site condition claim in the amount of $584,186 ($784, 186-$200,000).

        As for delay, based on the dates on pictures of the differing site conditions they
occurred between late November and early December 2007 (finding 131). This is in
Mr. Evans' Delay Review Period 8 (16 October 2007 to 25 January 2008) (R4, tab 3004 at
43). Mr. Evans contends that during this period the project was delayed 24 calendar days
due to ceiling framing installation, catwalk installation and ceiling paint in Area B in the
VQ (id. at 44). Mr. Evans does identify "HTHW issues" from 14 November to
28 December 2007 but from CPM Figure 16, Review Period 8, As Planned and As-Built
Schedule, the HTHW delay is concurrent with the catwalk delays; Also Mr. Evans does .
not discuss the "HTHW issues" so we do not know if they are solely related to the
differing site conditions. We find that PE failed to prove critical path delays associated
with the HTHW differing site conditions. 119

Triarch Claim ($589,405)

        PE claims $589,405 for the "purchase and installation of the Triarch wall
coatings in VQ guest room walls after the Air Force revoked its previous approvals for
using Sherman Williams paint" (app. br. at 222, 231). PE incorrectly centers its
argument on what happened after award. The real question is if RFP 8234 obligated PE
to include the cost of Triarch in the VQ in its bid. As explained below we find it did.
However, we also find liability on the part of the AF for its indecision on what wall
coating it wanted, causing PE to.start applying Sherwin Williams paint in the VQ.

       RFP 8234, Specification Section 09911 for TLF required that "Duroplex -
Triarch Industries" and "Plexture - Triarch Industries" be applied to walls and ceilings
of the TLF (finding 41). RFP 8234, Specification Section 09911 for the VQ required
"Duroplex -Triarch Industries" and "Plexture - Triarch Industries" for interior paints 120

119
      PE does not appear to claim delay damages for this differing site condition in its.
       · claim summary (R4, tab 3149).
120
      We disagree with PE's contention that VQ Section 09911 "did not clearly mandate
         either paint or Triarch Duroplex" because of the use of the word "paint" (app. br.

                                             132
 (finding 42). The 35% drawings included in the RFP required Triarch for the TLF, but
 Sherwin Williams paint for the interior of the VQ (finding.43). Therefore there was a
 conflict between the 35% drawings and specifications as to the "paint" for the VQ. The
 conflict is resolved by the RFP' s order of precedence clause that reads, "In case of a
 difference between the drawings and specifications, the specifications shall govern"
 (finding 44). Therefore, the Specification Section 09911 requiring Triarch in both
 buildings takes precedence over the 35%.drawing (finding 44). Gosselin World Wide
 Moving NV, ASBCA No. 55367, 09-2 BCA, 34,242 at 169,235 ("Nonetheless,
 appellant is correct that the Order of Precedence clause resolves the inconsistency.").
 The oontract requires Triarch in the VQ.

          We must also consider the pre-bid actions of the AF and bidders. In a 5 April 2005
  response to questions from bidders about the missing CID for the VQ, the AF twice gave
  an incorrect answer. The answer was that the VQ CID was attached to Amendment No. 1
 .to the RFP - it was not. (Finding 45) .Mr. Hillestad's 12 April 2005 email to bidders states
  that the paint specifications are identical and bidders should proceed accordingly
  (finding 46). This was a true statement about Section 09911 for both the TLF and VQ, but
  not for the VQ 35% drawing DI-401. In his 13 April 2005 internal email, Mr. Hillestad
  recognized the conflict between the VQ Section 09911 that required Triarch and the VQ
  CID that required Sherwin Williams paint (finding 47). Mr. Hillestad referred to the VQ
  CID, but we do not know what he was looking at because the VQ CID was not in RFP
  8234 (finding 42). We noted above a similar conflict between the VQ specification and
  35% drawing ID-401 that_was in RFP 8234. In an apparent attempt to address this
  conflict, Mr. Hillestad wrote his 19 April 2005 email to bidders. This email, however, did
  not clarify anything, butrather made matters more confusing in two ways. Armed with the
  knowledge of the conflict, rather than providing unambiguous clarification, Mr. Hillestad
  imposed a brand name or equal provision that had nothing to do with the conflict between
- VQ Section 09911 ·and drawing ID-401. He ended the email with:

               Further clarification should not be required. To th~ extent
               mis-information, erroneous, or misleading direction is
               contained in the RFP, appropriate corrections shall be
               accomplished in the award document(s).

 (Finding 49) This statement makes little sense because, if "mis-information, erroneous, or
 misleading direction is contained in the RFP," how could clarification be "accomplished in
 the award document(s)," i.e., before award without "further clarification"? In any event
 there is nothing in the record that would allow us to interpret it differently - it is just
 meaningless for our purposes. Contrary to the last paragraph in the first 19 April 2005
 email, Mr. Hillestad did provide "further clarification." He sent another email on the topic
 on 19 April 2005 where he clarified that "Triarch or equal product will only be applied to

        at 222). We understand that technically Triarch is not traditional paint but this
        does not cause the confusion PE suggests.
                                            133
 the interior walls of the structures," not the ceilings. The subject of the email, "McGuire -
 VQ/TLF - Paint issue" makes it clear that this email applies to both the VQ and TLF.
 (Finding 49) Therefore, the last email notified bidders again that Triarch was to be used in
 both buildings. Although the AF created confusion by not providing the VQ CID before
 award and not unambiguously addressing the issue in the 19 April 2005 emails, thi~
 confusion does not change the fact that RFP 8234 required PE to include Triarch for both
 the TLF and VQ in its bid. This time, pre-award communications do not change the terms
 of the contract as the Q&As did in the structural brick claim.

        Finally, PE contends in its brief that it and its subcontractors were misled into ·
 including Sherwin Williams paint for the VQ in their bids:

                        Meanwhile, paragraph 1.4 A in Section 09911 (R4,
                 tab 89)( 121 1 continued to call for paint. Parsons and its
                 subcontractor(s) followed that paint specification, although
                 the specification also named a textured wall covering by
                 Triarch. (R4, tab 89) Parsons included paint in its bid for
                 the VQ walls and understood that any "mis-information, or
                 misleading direction in RFP" would be accomplished later.

 (App. br. at 224) PE cites to no evidence in the record supporting its contention that PE
 and its subcontractor(s) bids wer~ misled into bidding based on Sherwin Williams
 "paint" and not Triarch in the VQ. Also, there are several problems with this argument.
 Section 09911, paragraph 1.4 A. does not "continue to call for paint." It specified
 "Duroplex - Triarch Industries." (Finding 42) The word "paint" is not used as
 narrowly as PE suggests. It is clear that "paint" is used to refer to both Triarch and
 Sherwin Williams traditional paint. Also, arguing that PE "understood that any
 'mis-information, or misleading direction in ~P' would. be accomplished later" is itself
 misleading. The actual language referred to is contained in emails and reads "To the
 extent mis-information, erroneous, or misleading direction is contained in the RFP,
 appropriate corrections shall be accomplished in the award document(s)" (finding 39).
 The words "later" and "in the award document(s)," i.e., at award, are not synonymous.
 The fact that in its brief the AF seems to accept PE's statement that it bid Sherwin
 Williams paint (gov't br. at 200) does not change the fact that there is no evidence in the
 record supporting PE's contention. There is, however, evidence that PE mistakenly
·underbid the YQ finishes using Testino's incomplete bid rather than Pro-Spec's bid
 with the complete scope (finding 50). This evidence does not support PE's argument
 that it and its subcontractors were misled and, as a result, bid Sherwin Williams paint.

        Additionally, we consider the conflict between the VQ specification and the
drawing to be a patent ambiguity. As such, PE had an affirmative obligation to inquire
to the government about it. NVT Technologies, 370 F.3d at 1162 (if the ambiguity fa

 121
       Section 09911, Rule 4, tab 89 is also included in RFP 8234 (R4, tab 2 at 1154).
                                              134
  patent, it triggers a duty to inquire); see also States Roofing Corp. v. Winter, 587 F.3d
  1364, 1372 (Fed. Cir. 2009); Triax Pacific, Inc. v. West, 130 F.3d 1469, 1474-75 (Fed.
  Cir. 1997). If the government's response to an inquiry does not clear up the ambiguity,
  the duty to inquire continues. Phoenix Management, Inc., ASBCA No. 57234, 11-1
  BCA 134,734 at 171,005 (Furthermore, when an offeror attempts, but the government's
  response fails, to resolve an ambiguous solicitation provision, the offeror has the duty to
  continue to seek to resolve that ambiguity.). We see no evidence in this record showing
· that PE clearly inquired in an attempt to clear up this patent ambiguity. Therefore, PE's
  interpretation must fail. NVT Technologies, 370 F.3d at 1162 (if an ambiguity is
                                                1



  obvious and a bidder fails to inquire with regard to the provision, his interpretation will
  fail). PE is not entitled to the cost of purchasing and applying Triarch in the VQ.

         Having found that RFP 8234 required the use of Triarch in both buildings does not
  end our analysis. After award the AF continued to create confusion over the use of
  Sherwin Williams paint in the VQ. The 100% VQ drawing ID401 still specified Sherwin
  Williams paint (finding 143). In response to RFI No. 43 the AF added to the confusion
  identifying Sherwin Williams paint be used in the VQ (finding 144). CO Brown approved
  ASI No. 13, writt.en by PE, on 19 September 2007 identifying Sherwin Williams paint, hot
  Triarch, for the VQ (finding 145). After approval of ASI No. 13, PE directed its painting
  subcontractor to start applying paint to the walls of the VQ (id.). It was not until
  4 February 2008 that CO Brown directed the use ofTriarch and on 15 February 2008
  CO Cruz formally rescinded ASI No. 13 and directed that Triarch be used in both the TLF
· and VQ (finding 147). As a result of these actions, the AF is .liable for all costs and critical·
  path delays associated with its direction to use Sherwin Williams paint in the VQ.

        As far as the costs of applying paint to the VQ we are left without any assistance
 from PE. This is because its "claim seeks only the cost overrun associated with changing
 VQ walls from paint to Triarch" (app. br. at 458). We carefully read PE's discussion of its
 Triarch claim in its brief (id. at 222-30, 457-59). We know that KLM installed Triarch in
 the VQ, however, because of PE's approach, there is no information allowing us to estimate
 the cost of applying the paint to the VQ. Therefore, although PE is entitled to recover the
 costs of applying paint to the VQ, we cannot determine quantum. This problem is caused
 by PE's demand that the Board decide both entitlement and quantum.

        A total of 149 days elapsed between issuing ASI No. 13 on 19 September 2007 and
rescinding it on 15 February 2008. However, we are only interested in the period from
the start of painting to the rescinding of ASI No. 13. We believe this is an appropriate
period to use for calculation of this delay. According to the Review Period 8 as-built
schedule applying paint to the VQ walls in area B started on 26 January 2008 122 and it
was on the critical path (R4, tab 3004 at 44). PE's 1 February 2008 letter states that at

 122
       The as-built schedule for Period 9 changes this to "Paint Ceilings Area B" so we do
         not know precisely when the wall painting was stopped but painting was on the
         critical path and preceded the application of Triarch (R4, tab 3004 at 47).
                                              135
that time painting in the VQ was progressing (finding 146). ASI No. 13 was rescinded on
15 February 2008. There were 20 days b~tween 26 January 2008 and 15 February 2008.
Based on the incomplete record before us, we conclude that the AF is responsible for
these 20 days of critical path delay caused by the AF's direction to apply Sherwin
Williams paint to the VQ.

       The 20-day critical path delay between 26 January 2008 and 15 February 2008
falls within period three, Acceleration & Vertical Construction, where the daily rate. was
$13,548 (finding 223). The extended overhead is therefore $270,960 (20 x $13,548).
Again we follow DCAA's calculation to markup:

                 Description        Audit Determined Rate      Amount w/ Markup
          Extended Overhead                                    $270,960
                  Markups
          Bond                      0.6375%                     $1,727
          GL & BR Insurance         0.8316%                     $2,253
                  Subtotal                                    $274,940
          Composite G&A             2.8600% ·                   $7,863
          Expense
          Profit                    10.0000%                   $27,494
          Total                                               $310,297

Stormwater Detention Pond and Underground Storage ($248,390)1 23

       PE contends that the VQ detention pond was properly designed using the
24 November 2003 PSA geotechnical report that located the groundwater at
approximately 5 feet below the bottom of the pond. When the pond failed to drain, ESA '
found that the groundwater had ri~en to within a foot of the bottom of the pond. PE
conten.ds this was a differing site condition that entitles PE to be reimbursed for the
additional cost to construct the underground detention system. (App. br. at 257-59)
The AF spends little time on this issue in its brief and takes the position that the
requirement was a performance specification and that the pond failed to meet the
performance requirements due to poor design (gov't br. at 325-26).

        During the development of the 35% drawings the stormwater detention pond was
discussed (findings 14, 51-55). MAFB engineers expressed concerns about standing water
that would attract birds close to the runway (finding 51 ). There was direction from MAFB
that the surface pond be removed from the 35% design (findings 52, 55). However, the AF
decided to leave the surface detention pond in the design due to cost considerations
(finding 55).                            ·


123
      This amount was not identified in quantum section K of PE's brief. The amount
         comes from the entitlement section (app. br. at 249).
                                           136
        The 3 5% design drawing package, dated 18 May 2004, included drawing C-106,
Storm Drainage and Grading Plan, that showed the stormwater detention basin (pond). A
note on the drawing states that, during the final design phase, a detailed hydraulic
analysis "shall be conducted" and that other options such as underground storage could
be considered (finding 14). We conclude that the AF left the surface pond in the 35%
design, knowing that the MAFB did not allow such ponds (findings 51-5 5).
Accordingly, bidders were entitled to bid based on the surface detention pond shown on
the 35% drawing C-106. Although the drawing note provided that other options could be
considered, there is nothing in the note or contract that required the contractor to provide
other more costly options at no cost to the AF. We also note that we found nothing in the
35% design requiring that the pond drain within a certain period of time. However, PE
seems to agree that the pond was supposed to drain in 72 hours (finding 141) so we find
that the pond was supposed to drain within 72 hours.

        PE hired ESA to develop the 100% for construction detention pond design
(finding 139). ESA's design is shown on 190% design For Construction Drawing C-106
and includes a boring log at one site adjacent to the pond (finding 140). It is important to
remember that this boring was done after award of contract 8703. The boring found
groundwater at about 5 feet below the bottom of the pond (id.). This was consistent with
the findings of site boring samples included in PSI's pre-award 24 November 2003
geotechnical report (finding 57). In the fall of 2006 there was a "hundred year storm" and
the pond did not drain (finding 141). ESA determined that the groundwater level was
much higher, about a foot under the bottom of the pond (id.). PE contends this was a
differing site condition for which it is not responsible (app. br. at 258-59). A differing site
cpndition does not apply in this situation because the site condition found after award in
the ESA boring was the same as the site condition _described before award in the PSI
geotechnical report (findings 57, 140). That is, the groundwater was approximately
five feet below the bottom elevation of the pond both before and after award. It was not
until the "hundred year storm" that the groundwater rose to within a foot of the bottom of
the pond apparently preventing the pond from drain1ng properly. The Board has held that
a post award "act of God" such as severe weather is not a differing site condition:

                However, "weather occurring during contract performance,
                no matter how severe, and other acts of God alone do not
                fall within the provisions of the Differing Site Conditions ...
                clause." Commercial Contractors Equipment, Inc., ASBCA
                No. 52930 et al., 2003-2 BCA ,-( 32,381 at 160,255.
             · Moreover, the differing site conditions clause protects a
                contractor from undisclosed or unknown site conditions that
                predate the contract, not something occurring thereafter.
                See John McShain, Inc. v. United States, 375 F.2d 829, 179
              . Ct. Cl. 632 (Ct. Cl. 1967) (addressing predecessor changed


                                             137
              conditions clause); Commercial Contractors Equipment,
              03-2 BCA 132,381 at 160,258.

PBS&J, 14-1 BCA 135,680 at 174,653.

       Although PE cannot rely on differing site condition as the cause of the pond's failure
to drain, the fact is that MAFB would not allow a surface pond (findings 52, 54-55, 142).
Also, after the pond failed to drain, the AF took the position that the pond had to drain
"continuously" (finding 142). First, we find that by keeping the surface pond in the design
after being told to remove it by MAFB authorities, the AF assumed the risk that the surface
pond would not be allowed by MAFB after award of the contract: Second, we find that the
AF changed the requirement for a surface pond that would drain in 72 hours to continuous
draining. There is no evidence in the record that continuous draining was either possible or
acceptable to MAFB.

       It is true that PE installed the underground system without AF advance approval
(finding 142) but this does not shift liability to PE. It is obvious from this record that
the AF would not agree to pay for the underground system. In its brief, the AF
mentions note 3 on drawing C-106 that suggests "underground detention" as an option
that could be considered during final design (gov't br. at 325; R4, tab 1746, sheet 8).
The AF seems to imply, without arguing, that "underground detention" should b.e a
no-cost option. As we stated above, PE was entitled to base its bid on the 35% design
surface detention pond and there is nothing in the note or in the contract that required
the PE to construc_t a more costly alternative at no additional cost to the AF. The AF
and MAFB put PE in ari impossible position, on one hand the AF specifying the surface
pond and on the other MAFB prohibiting the surface pond. We find that, under these
circumstances, the only reasonable option for PE was to build the underground·
detention system without AF approval and file a claim. The AF is liable for the
additional cost of the underground system.

       The underground detention costs are included in PE's buyout claim discussed
below. PE subcontracted with Robert E. Haas, Inc., to construct the underwater
detention system for $248,390 (finding 142). PE claims two different amounts for this
work, $248,390 (app. br. at 244, 256) and $253,015 (id. at 249). The difference is a
change order for $4,625 (id.). However, in support of the change order, PE cites us to a
spreadsheet that is cut off on the left margin so we cannot verify the change order (R4,
tab 3003 at 175). Therefore, we accept the $248,390 as the amount that the AF is liable
for PE's building the underground system. Mr. Evans does not contend that the
underground detention system caused critic·al path delay so we find that there was no
excusable compensable delay associated with the underground system.




                                           138
Balance of Construction ($20,676,990) 124

       This claim is comprised of six separate elements: Subcontractor Buyout Overruns
($4,068,798); Subcontract Change Orders ($5,672,525); Miscellaneous Construction Costs
Credits ($800,506); Extra Work Coded During Project ($2,593,064); Jobsite
Overhead/Constructive Acceleration/General Conditions ($4,614,438); and Added Costs
Due to Rejection of "Structural Brick" design ($1,906,401 ). 125 There is also a 29-day delay
claim. We consider each of these below.

         Subcontractor Buyout Overruns ($4,068, 798)

        Subcontractor "buyout" is when PE and its subcontractors agree to final negotiated
fixed-price subcontracts (finding 163). PE's EPR.recognized risks in quality of
subcontractor pricing, material price escalation, price to buyout and managing scope of
completion (finding 58). Prior to submitting its proposal PE planned to require its
subcontractors to holcl their bid open for 120 days and that "volatile materials such as
concrete and steel" would be purchased within the 120 days and stored either on site or in
bonded and insured warehouses (id.). We find that PE knew about material price escalation
before submitting its bid·. PE's bid was based on subcontract prices that were not
"indefinite" and most subcontractors said if costs increased they would pass the costs on to
PE (finding 163). There is no explanation why PE accepted bids with this condition
imposed. PE could have insi~ted on firm bids and allowed the subcontractors. to price the
risk. PE's initial schedule indicated PE planned to complete all buyouts by 3 November
2005 (finding 70). PE argues it could not adhere to this schedule because of various delays.
PE's buyout overrun claims are generally based on the difference between subcontractor's
bids and the actual final negotiated subcontract prices (finding 164). These are therefore,
total cost claims 126 that are disfavored by courts. Custom Blending & Packaging; Inc.,
ASBCA No. 49819, 00-2 BCA i131,083 at 153,479 ("The total cost method is a disfavored
means of measuring a contractor's recovery."). We consider the subcontractors' warning
that future increased costs will be "passed on" to PE both inconsistent with fixed-price
contracting and an incentive to PE to "buy-out" the subcontracts as soon as possible.

       A contractor is entitled to recover for cost escalation if it can prove that
government-caused delay pushed performance into a time when costs had escalated.
ADT Construction Group, Inc. by Timothy S. Cory, Chapter 7 Trustee, ASBCA
No. 57322, 15-1BCAi135,893 at 175,470-71. However, liability for escalation caused
by government caused delay is different from escalation caused by a contractor's failure
to lock in fixed-priced contracts (buyout) in a timely manner.

124
      This amount includes mark-up (app. br. at 234).
125
      These amounts do not include mark-up.
126
      We do not consider this inconsistent with our determination in the design impact
         claim discussed above that the claim was not a MTC claim.

                                            139
        An earlier ADT case dealt with a "buyout" scenario similar to PE's. See ADT
Construction Group, Inc. by Timothy S. Cory, Chapter 7 Trustee, ASBCA No. 55358,
13 BCA 'if 35,307. 127 This ADT case involved the default of a firm:.fixed-price
design-build contract. Id. at 173,291. ADT argued that, due to government-caused
delay "it was not able to finalize subcontracts in April 2004 but had to wait until late
2004 when costs had risen considerably in southern Nevada." Id. at 173,300. ADT
contended it was not able to finalize its subcontracts until it received an approved design ·
in the latter part of 2004. The increased costs at buyout caused ADT to default. The
Board denied ADT's appeal. The Board identified "two fundamental questions" in
ADT: "The first is whether ADT really had to wait until November and December 2004
to buyout' its subcontractors. If it did, the second question is whether that delay
increased the cost of the subcontracts, and, if so, to what extent. Appellant has not
convinced us that the timing of its subcontracting was solely the result of government
actions or that its quantification of the claimed increase in costs is defensible." ADT,
13 BCA ~ 35,307 at 173,320. We focus on the first question, whether PE really had to
wait to enforce buyout on its subcontractors. In ADT, we found that the contractor had
not proven that it had to wait as long as it did to buyout subcontractors:

                        Based on the record before us, we believe that costs
                were increasing in southern Nevada in 2004. We also
                accept the argument that subcontracting before design:
                approval would have left appellant with some uncertainties,
                but it also included inherent risks it should have      '1
                contemplated at time of bid. What we are doubtful about is
                the extent to which it can be said either that appellant was
                unaware of the apparently rapidly rising costs. Bayou
                Culvert Mfg., Inc., AGBCA No. 400, 76-1 BCA ~ 11,796 at
                56,306 ('"A ·contractor is charged with knowledge of the
                state of his industry at any given time."'), or that there was
                no alternative to entering into subcontracts when it did.
                ADT's May 2003 price and technical proposal listed
                ··named" construction subcontractors and noted that
                appellant had entered into agreements with them (finding 3).
                While we understand that the price of those subcontracts
                may not have been finalized, appellant knew, to some
                extent, early on who it was going to contract with and what
                those subcontractors were going to do. We see nothing in
                the record that demonstrates ADT could not have
                subcontracted earlier than it did or even moved toward more
                fixed arrangements with its proposed subcontractors. Cf
                Yankee Telecommunication Laboratories, Inc., ASBCA

127
      Neither party discussed ADT in their briefs.
                                             140
              No. 25240 et al., 85-1 BCA 117,786 at 88,873 ("The
              'notion that a bidder has no responsibility to obtain firm
              commitments before bidding is not tenable."').

Id. at 173,321. PE had a design-build contract, just as ADT, and we reach the same result.

       Inherent in the Board's decision was the recognition that ADT's contract was
firm-fixed-price as is PE's. Lakeshore Engineering Services, Inc. v. United States, 748
F.3d 1341, 1347 (Fed. Cir. 2014) ("The essence of a firm fixed-price contract is that the
contractor, not the government assumes the risk of unexpected costs."). In
Commissioning Solutions Global, LLC, ASBCA Nos. 57429, 57494, 13 BCA 135,355
we stated:

                     The fixed-price nature of the PO provisions supports
              the CO's refusal to increase the PO price. See Naughton
              Energy, Inc., ASBCA No. 33044, 88-2 BCA 120,800 at
              105,073 (contractor bears the risk of fluctuating marketplace
              prices in a fixed-price type contract); Nedlog Co., ASBCA
              No. 26034, 82-1BCA115,519 at 76,986 (risk of greatly
              increased costs, unanticipated and unprovided for in the
              contract price, is on the contractor in a fixed-price contract).

Id. at 173,531. PE competed for and \,Von a finn-fixed-price contract where only 35% of
the design was completed. The trial judge asked Mr. Rusing, the AF design-build
expert (tr. 18/112), how such a contract could be priced. Mr. Rusing testified that prime
contractors try to deal with subcontractors that are familiar with design-build and give
them as much information on the structure and systems as possible and then have them
involved in the development of the 100% design (tr. 18/13 8-39). From our perspective
agreeing to a fixed-price construction contract based on only a 35% design has to carry
significant risk.

       In its brief PE explains "The primary reasons why Appellant seeks reimbursement
for these [buyout] overruns" are the delays caused by the structural brick matter,
foundation NTP, differing site conditions (unsuitable fill, organic layer, and asbestos pipe),
the "shopping list," government design changes, government funding shortfalls, and price
escalation due to Hurricane Katrina and the "hot Chinese construction market demand"
(app. br. at 235-36, 242).

        We consider competition from China first. In 4.DT the Board imposed an
obligation on ADT to know about the price escalation in Nevada at the time and deal
with it. Just as in ADT, PE put on no persuasive evidence to support a·finding that
competition for materials ·from China was not foreseeable before 27 April 2005 when
PE submitted its bid. Incleed, as early as March 2005 PE identified "price escalation of
materials prior to buy-out" as a risk in its EPR (finding 58). PE planned to require.

                                            141
                                                                                I

subcontractors to leave their bids open for 120 days during which time "volatile
materials such as concrete and steel" would be purchased and stored for future use (id.).
Also, Mr. Rusing documented in his expert report that in 2004 to 2005 the construction
industry experienced extreme escalation in material and labor costs (finding 166). We
find that PE knew about price escalation before it submitted its bid and should have
dealt with it.

        Concerning Hurricane Katrina, the AF makes a good point in its reply brief.
DO 13 was awarded on 13 July 2005 and Hurricane Katrina occurred less than two
months later (gov't br: at 475). The adverse effects of Katrina occurred well before any
delays were experienced on the contract. Also Hurricane Katrina was an unforeseeable
Act of God. The AF is not liable for price escalation caused by Katrina. Maggie's
Landscaping, Inc., ASBCA Nos. 52462, 52463, 04-2 BCA il 32,647 at 161,565
(government not liable for unforeseen circumstances such as an Act of God); E. W
Jackson Contracting Co., ASBCA No. 7267, 1962 BCA il 3325 at 17,133 ("It is a well
settled principle of law that neither party is responsible to the other for damages
occasioned as a result of an Act of God, unless such obligation is expressly assumed.").

       Concerning the structur.al brick portion of the delay, PE failed to prove that this
delay somehow prevented it from buying out its subcontracts in 2006.

        Buyout should be dependent on the state of completion of design not actual
construction. Mr. Temchin testified that the earthwork delays had "a significant
negative effect in our ability to buy-out the packages" and that PE could not buyout
subcontracts until a final schedule was agreed to, "Without the schedule, we couldn't
lock in the contract" (finding 166). This testimony contradicts his earlier testimony that
what was needed for buyout was the 100% design, he m.ade no mention of a final
schedule (finding 163). We agree with his earlier testimony. We disagree that a final
schedule is needed, because changes in schedule are almost inevitable in construction
contracts and .increased costs may be dealt with under the changes clause. Also, the
chronology of the design work does not support PE's position. The 65% drawings are
dated 14 November 2005 and include the 100% civil/structural design (finding 165).
Therefore, by November 2005 PE should have bought out all of its contractors involved
in horizontal work. The delay associated with clean site (contaminated soil) started on
7 July 2006 (finding 96). The unsuitable fill was not discovered until mid-August 2006
starting the earthwork delays (findings 103-04). · Therefore, these delays did not affect
buyout of the contractors performing "civil/structural" work that could have been
bought out on or before 128 14 November 2005. PE was able to buyout "Giberson 2" on
31 October 2005 for "earthwork, underground utilities, storm, site concrete, parking lot
subgrade, landscaping, and site furnishings," but there are only two other buyouts in


128
      We say before because the subcontractors responsible for that work should have
        been working with PE in developing the drawings.
                                            142
 2005 (finding 164). PE should have dealt with all of its subcontractors as it did with
 Giberson 2.

        The 95% drawings for vertical work are dated 17 May 2006 before the stop-work
 orders associated with clean site and unsuitable fill (findings 96, 103-04; 165). Since
 the subcontractors were supposed to be assisting PE in the design there is no evidence
 that buyouts could not have been.completed before the finalization of the 95% desi"gn in
 May 2006. The 100% drawings are dated 24 July 2006 (finding 99) only a couple
 weeks after the clean site stop work order. We do not agree that PE could not have
 bought out all of its subcontractors on or before when the 100% designs were completed
 on 24 July 2006. Indeed, 20 out of the 45 buyouts were completed before the end of
 2006 and 25 occurred in 2007 and 2008 (finding 164). The timing of the earthwork
 delays post-dates the time when we believe PE should have bought-out its
 subcontractors. PE did not address this timing problem in its testimony or briefs.
 Essentially, waiting to buyout subcontractors reduces risk to the subcontractors and
 increases risk to PE, not the AF. It essentially creates what is analogous to cost
 contracts with PE's subcontractors.

         In conclusion, PE represented itself as having experience in design-build
 contracting. PE signed a fixed-price contract with only 35%.of the design completed.
 We have 65% drawings dated 14 November 2005 and 95% drawings dated 17 May
 2006, before the first indication of earthwork delays, and no evidence why buyout could
 not have been completed in this time frame. PE's buyout activity lasted until October
 2008 (finding 164). We have found that escalation problem caused by competition for
 materials from China was foreseeable and escalation caused by Hurricane Katrina was
 an Act of God for which the AF is not liable. We do not agree there was no alternative
 to PE's buying out subcontracts when it did. ADT, 13.BCA, 35,307 at 173,320. Based
 on this conclusion, we need not address PE's other items of delay: the shopping list, AF
 funding shortfalls, AF design changes, and foundation NTP. This record simply does
 not support PE's argument that it acted in a prudent manner and the AF should be liable
 for its buyout overruns. Essentially, PE lost control of its subcontractors and that is not
 the AF's responsibility. PE's buyout claim is denied except for the stormwater
 detention matter discussed above.

        Subcontract Change Orders ($5,672,525)

         Since PE chose not to introduce testimony on each of these 118 cb,ange orders
  due to time constraints at the hearing, this aspect of its claim is essentially a record
· submission. PE argues that "its analytical breakdown of the change orders (by cause),
  accompanied by supporting testimony of Jordan Rosenfeld and Dick Cardinale et al.,
  should be sufficient to establish a prima facie case that the change orders have been
  properly sorted by their underlying causes, shifting the burden to the Air Force to
  challenge the contractor's summary" (app. bL at 264). We disagree. Without knowing
  precisely how Mr. Rosenfeld and Mr. Cardinale arrived at their allocation of liability to

                                             143
the government for each of the 118 change orders, we would have to "take their word
for it" that their allocations are correct. This we will not do. The "suppo_rting
testimony" is helpful in some cases but not nearly enough to shift the burden of proof.
PE's approach to these 118 change orders assumed considerable risk that we would
have unanswered questions resulting in our finding of failure of proof (FOP) for many
of the change orders. Each change order must stand on its own and we decided if the
record, such as it is, supported PE's allocation of responsibility. We reviewed each of
the 118 change orders and presented our results in tabular format (finding 168). Our
findings corroborate our conclusion that Mr. Rosenfeld's and Mr. Cardinale's allocation
of responsibility was not always self-evident. Based on· our analysis of individual
change orders we found that PE is entitled to $2,009,426 for its change order claim (id.).
To that we add markups:

       Description.             Audit Determined Rate       Amount w/Markup
 Overhead/General Cond.                                     $2,009,426
        Markups
 Bond                          0.6375%                         $12,810
 GL & BR Insurance             0.8316%                         $16,710
                              Subtotal                      $2,038,946
 Composite G&A                 2.86%                           $58,314
 Profit                       10.00%                          $203,895
                              Total                         $2,301,155

       Miscellaneous Construction Cost Credits ($800,506)

        In this section PE explains several credits that it gave to the AF. Since these
credits have apparently already been applied (app. br. at 234) we need not address this
matter further.

       Extra Work Coded During Project ($2,593,064)

        PE's cryptic argument presented very little documentary or testimonial support
for this aspect of its claim (app. br. at 313-17). Nevertheless, we find that the AF
effectively conceded the matter in its ·brief. Therefore, we accept the fact that PE
accurately captured its costs for these cost codes. We briefly address entitlement in
each claim category below.

             Claim Preparation ($1,840,112)

       PE argues it is entitled to recover what it characterizes as "claim prepration
costs" because they were incurred before its "claim was certified and submitted to the
Contracting Officer on June 29, 2012" (app. br. at 314). The date of certification is



                                           144
hardly the determining factor. Virtually all claim preparation costs are incurred before·
certification. The inquiry is:

              In considering such claims, the Federal Circuit directed the
              Board to examine the objective reason why the contractor
              incurred the cost. If the contractor incurred the cost for the
              purpose of materially furthering the negotiation process, the
              cost normally is allowable under FAR 31.205-33 as a
              contract administration cost even if the negotiation
              ultimately fails. On the other hand, if the cost is incurred to
              promote the prosecution of a claim, then the costs are
              unallowable.

Vistas Construction of Illinois, Inc., ASBCA No. 58479 et al., 16-1 BCA ,-r 36,236 at
176,797. PE's "proof' that it is entitled to these costs is "[t]he reasonableness of those
costs was never challenged in this appeal, and their award is authorized pursuant to
FAR 31.205-33" (app. br. at 314). PE adds nothing more in its page long quantum
argument, effectively referring back to its entitlement section quoted above (id. at 473-7 4 ).
PE totally failed to meet its burden of proof that this "claim" cost was incurred "for the
purpose of materially furthering the negotiation process." This claim is denied.       ·

              Response to Cure Notices ($71,015)

        The record contains two cure notices issued on 9 August 2006 and 3 1 May 2007
(findings 101, 126). The first notice listed seven deficiencies: failure to develop a
project schedule, lack of cut and fill calculations, lack of sufficient labor, lack of
responsiveness relating to TLF subsurface conditions, design deficiencies relating to
parking lot, failure to give notice of steel delays, and failure to provide pricing for the
changes to be incorporated into the design, i.e., the "shopping list" (finding 101 ). The
second cure notice listed three deficiencies: failure to provide a proposal as outlined in
the RFP, dated 1 November 2006, for Shopping List Items, delays in the schedule, and
failure to ensure timely delivery of the steel trusses for the VQ (finding 126).

        As is the case with most cure notices the contractor is warned that the
 government considers the failure to comply with the tern1s of the contract to be a
.condition that is endangering performance of the contract. The problem with these cure
 notices is that the ''shopping list" was not a tenn of the contract. The AF had no valid
 reason to include the shopping list in the cure notices. It was an inappropriate use of a
 cure notice to coerce a contractor to do something that is not requin:d by the contract.
 We sustain PE's claim, but only for that portion of the amount claimed that relates to
 the shopping list.

      Unfortunately, PE gives us no help in estimating a reasonable amount caused by the
shopping list. The only support for this claim provided by PE was reference to a summary

                                            145 ·
 at Rule 4, tab 3146. This is a one-page summary tharis identical to that in PE' s brief (app.
 br. at 314 ). Rule 4 tab 3146 directs us to Note 8, Sutor Schedule 5-1 b, which is
/Mr. Rosenfeld' s 10 October 2014 Rebuttal Report. When we go to the report we find
 Schedule 5-1 {R4, tab 3003 at 170). Although PE provides us no assistance, we tried to fill
 in the blanks by going page by page through Schedule 5-1 and could not find Schedule 5:-1 b
 or Note 8. We have done more than called for given it is PE's burden of proof. Although
 we found entitlement above, we are unable to determine quantum, and thus make no award.

               Delays in Issuance of NTPs ($63,021)

         Although we found that there was no requirement for the AF to issue a design
 NTP, it in factissued one on 25 July 2005 with an effective date of 13 July 2005
 (finding 68). The AF issued a LNTP for earthwork on 27 March 2006 (finding 89).
 The next LNTP was issued on 6 June 2006 for work affecting underground utilities and
 various site work not including foundations (finding 94). The unlimited NTP was
 issued on 10 July 2006 (finding 98). PE argues that this unlimited NTP should have
 been issued in April 2006 when the 95% design drawings were finalized. We have
 already found tb.at PE is entitled to 70 days of compensable delay in issuing the LNTP
 for the VQ foundation work (see pages 198-99). PE fails to explain its position nor
 does it cite to any documentary or testimonial evidence in the record in support of this
 additional NTP claim. PE failed to meet its burden of proof on this aspect of its claim.
 This NTP claim is denied.

               Tiger Team Recovery Efforts ($230,342)

         While we found that there was constructive acceleration and are willing to
 compensate PE for associated costs, PE failed to develop the record sufficiently for the
 Board to find that the "Tiger Team" costs were caused by the acceleration. PE only
 refers to "Tiger Team" in two pages of its brief, pages· 314 and 473; without any
 analysis supported by proof. PE failed to meet its burden of proof for this aspect of its
 claim. This Tiger Team claim is denied.

               Increase Mgmt. ofAcceleration-($107,181)

         Having found constructive acceleration, and there being no AF response to this
 claim we will accept PE's characterization of these costs. We find that the AF is liable
 for the $107,181 cost caused by acceleration. We add burden:

        Description              Audit Determined Rate        Amount w/Markup
  Overhead/General Cond.                                      $107,181
         Markups
  Bond                          0.6375%                          $683
  GL & BR Insurance             0.8316%                          $891
                               Subtotal                       $108,755
                                            146
 Composite G&A                 2.86%                            $3,110
 Profit                       10.00%                           $10,876
                              Total                           $122,741

              Preparation of Revisions to REAs ($51,697)

       This REA claim is similar to the "claim" costs denied above. In AEI Pacific,
Inc., ASBCA No. 53806, 08-1 BCA ~ 33,792, we discussed REA preparation costs:

                      The costs of professional and consultant services are
              unallowable if they are incurred in connection with the
              prosecution of a claim against the government.
              FAR 3 1.2 0 5-47(f)( 1). In making this determination, we
              look to see whether the costs were incurred "for the genuine
              purpose of materially furthering the negotiation process."
              Bill Strong Enterprises, Inc. v. Shannon, 49 F .3 d 1541, 15 50
              (Fed. Cir. 1995), overruled in part on other grounds by
              Reflectone; Inc. v. Dalton-, 60 F.3d 1572 (Fed. Cir. 1995).

Id. at 167,284. In AEiwe decided that because the "REA was submitted long after AEI
had ceased work on the .contract and AEI has not pointed to any on-going negotiation
process between the parties which would require such services" AEI' s REA preparation
costs were unallowable. Id. We follow this logic here. PE's REA's were submitted on
24 December 2008 after BOD (R4, tabs 1536-38). They deal with "Maladministration
of the Closure Inspection Process" (R4, tab 1536), "Tri-Arch Paint" (R4, tab 1537) and
"Differing Site Conditions along the High Temperature Hot Water Pipeline Alignment"
(R4," tab 1538). We denied PE's claim for the cost ofTriarch, so those REA costs
would notbe recoverable. We agreed with PE's claims relating to the HTHW differing
site conditions and closure inspection process. However, PE failed to put on any -
evidence that meets the criteria of AEI, that there was an "on-going negotiation process
between the parties which would require such services." Therefore, PE failed to meet
its burden of proof. This REA claim is denied.

             Extra Warranty Work ($154,918)

       PE fails to provide any details of what this work was, nor does it cite to any
documentary or testimonial evidence supporting this cla:im. PE failed to meet its burden
of proof. This extra warranty work claim is denied.

             Response to Noise Level Concerns ($72,500)

       The contract required PE to provide vibration isolation foi;- mechanical room
equipment (finding 178). The contract does not specify a measurable noise level for the
guest rooms. Mr. Rola seems to be the only person asserting that the noise level in the
                                           147
TLF guest room above the mechanical room was unacceptable (finding 179). However,
there is no credible, objective proof that such was the case. Mr. Kissler's statement that
PE's contract did not require it to insulate the mechanical room was correct - all that is
required is '•vibration isolation" for the equipment (findings 178-79). There is no
allegation that PE did not provide vibration isolation for the equipment in the mechanical
room. Ultimately, the AF conceded that there was no noise problem above the
mechanical room (finding 179). We find Mr. Rola's· cone.ems were unjustified. The AF
is liable for the $72,500 incurred by PE in attempting to placate Mr. Rola. We apply
markup:

       Description              Audit Determined Rate        Amount w/Markup
 Overhead/General Cond.                                      $72,500
        Markups
 Bond                           0.6375%                          $462
 GL & BR Insurance              0.8316%                          $603
                               Subtotal                       $73,565
 Composite G&A                  2.86%                            $2,104
 Profit                        10.00%                            $7,357
                               Total                          $83,026

              Miscellaneous Other Work ($2,280)

       PE fails to provide any details of what this work was, nor does it cite to any
documentary or testimonial evidence supporting this claim. PE failed to meet its burden
of proof. This claim is denied.

      Jobsite Overhead/ConstructiveAcceleration/General Conditions ($4,614,438)

        PE characterized this claim as "increased general condition costs" (app. br. at
474-75), however, we consider only increased general condition costs caused by
constructive acceleration. Constructive acceleration occurs when the government
requires a contractor to adhere to a performance schedule even though the contractor is
entitled to an extension due to excusable delay. Fraser Construction Co. v. United
States, 384 F.3d 1354, 1361 (Fed. Cir. 2004). There are generally five elements of
acceleration:

               ( 1) [T]hat the contractor encountered a delay that is
               excusable under the contract; (2) that the contractor made a
               timely and sufficient request for an extension of the contract
               schedule; (3) that the government denied the contractor's
               request for an extension or failed to act on it within a
               reasonable time; (4) that the government insisted on
             · completion of the contract within a period shorter than the

                                            148
                period to which the contractor would be entitled by taking
                into account the period of excusable delay, after which the
                contractor notified the government thatit regarded the
                alleged order to accelerate as a constructive change in the
                contract; and (5) that the contractor was required to expend
                extra resources to compensate for the lost time and remain
                on schedule.

Id. In Fraser, the court cited Norair Eng'g Corp. v. United States, 666 F.2d 546, 548 (Ct.
Cl. 1981 ), that compressed "these five requirements into three essential elements-
excusable delay, an order to accelerate, and acceleration with attendant costs." Fraser, 384
F.3d at 1362. An "order to accelerate" is satisfied by the imposition or threat to impose
liquidated damages. States Roofing Corporation, ASBCA No. 54860 et al., I 0-1 BCA
, 34,356 at 169,665 (quoting Norair, 666 F.2d at 549) (An order to accelerate "need not be
couched in terms of a specific command. A request to accelerate, or even an expression of
concern about lagging progress, may have the same effect as an order."); Norair, 666 F.2d
at 549 ("In short, while the Government recognized that some delays were validly
excusable; it did not say which, and left it very clear that it disagreed with plaintiff as to the
amount; therefore, plaintiff could have been required to accelerate work beyond what it
thought was the proper rate (allowing for excusable delays) to avoid the risk of liquidated
damages."); Fischbach & Moore Int'! Corp., ASBCA No. 18146, 77-1 BCA, 12,300 at
59,228. We apply the three element test herein.

        The AF extended the period of performance from 9 July 2007 to 27 December 2007
by Mod. 3 (finding 124). In our decision above, we found a cumulative excusable/concurrent
delay of 332 days (70 days for horizontal NTP, 28 days for cleari site concerns, 182 days for
unsuitable fill, organic material and asbestos pipe, and 20 days for Sherwin Williams paint
application in the VQ, and 32 days 129 of critical concurrent delay for SSNIR/Truss). The 332
days runs concurrently with the 171 days in Mod. 3 so we use 9 July 2007 as the starting
point in this analysis. The government may contend that, because of Mod 3's extension of·
time to perform, the acceleration only occurred after 27 December 2007. However, Mod 3
imposed de facto liquidated damages through the credit it required of PE. Therefore, PE was
entitled to 332 days excusable delay starting from 9 July 2007 for a delivery date of 5 June
2008. The first element is satisfied. The AF refused to extend the 27 December 2007
delivery date and informed PE that liquidated damages would commence on 28 December
2007 (finding 162). The second element is satisfied. PE claims $4,614,438 in direct costs it
incurred due to the acceleration. The third element is satisfied. We find that PE is entitled to
recover an amount for increased jobsite overhead/general condition costs caused by
constructive acceleration.

        The $4,614,438 is made up of fourteen costs (three labor and eleven non-labor)
resulting from "[t]he ripple effect of multiple delays and impacts [which] forced Parsons to

129
      See pages 153-54 ofthis decision.
                                             149
  resequence, accelerate, and incur project management and administration costs far
  exceeding those reasonably anticipated at bid time" (app. br. at 474). We will not repeat
  the list here. The primary evidence supporting this claim are Rule 4, tab 3148, and PE's
  hearing exhibit 19. Rule 4, tab 3148, consist~ of a summary sheet, twelve sheets of
  accounting data and two graphs showing man hours and employees from 2005 to 2008.
  Hearing exhibit 19 is an overall claim summary that includes pages supporting this claim
  cited by PE in its brief. We held above that PE is entitled to recover increased costs
  incurred due to the constructive acceleration. The data shown in Rule 4, tab 3148 and
  hearing exhibit 19 and our finding of constructive acceleration proves that PE suffered
  damage. The $4,614,438 130 is made up of$3,124,000 in labor costs and $1,490,438 in
  non-labor costs (app. br. at 475). We deal with the labor costs first. We rely on one chart
  in Rule 4, tab 3148 at 14 that shows staffing hours by date. We only allow PE to recover
  for the costs incurred during the acceleration period. PE identified the acceleration period
  as from 1 September 2007 to 31 May 2008 (app. br. at 482). The acceleration period is
  indk:ated at the bottom of the chart. The chart shows the highest labor hours during the
  acceleration period. We estimate from the chart that two thirds of the labor was caused by
  the acceleration. 131 Therefore, we believe a fair and reasonable estimate of the labor costs
  during the acceleration period is two thirds of the claimed labor costs or $2,080,584
  (.666 x $3,124,000). As for the non-labor costs we do not have a chart or anything else to
  assist us is determining fair and reasonable estimate of increased cost incurred during the
. acceleration period. However the acceleration period included winter months. It is clear
 to us that the excusable delay caused PE to perform work during winter that it had planned
  to perform in milder months. Mr. Cardinale testified about heaters "all over both
  facilities" and scaffolding, tenting and equipment used to heat the buildings so work would
  proceed (tr. 5/154). Therefore, we deny the non-labor costs except for the winter heat cost
  of $493,196. The total amount we allow for jobsite overhead/general conditions is
  $2,573,780 ($2,080,584 + $493,196). We apply the standard markups 132 to this amount as
  follows:

       Description                Audit Determined Rate       Amount w/Markup
 Overhead/General Cond.                                       $2,573,780
        Markups
 Bond                             0.6375%                        $16,408
 GL & BR Insurance                0.8316%                        $21,404
                                Subtotal                      $2,611,592
 Composite G&A                  · 2.86%                          $74,692
 Profit                         10.00%                          $261,159
                                Total                         $2,947,443


130
      PE states· that this amount is "excluding markups" (app. br. at 474).
131
      If PE believes we have misinterpreted this data, it is because PE failed to adequately
          explain it to us in its brief.
132
      PE states that the claimed amount for jobsite overhead excluded markups (app. br. at 474).
                                            150
         Added Costs Due to Rejection of "Structural Brick" Design ($1,906,401)

        Earlier in this decision we found that the AF was liable for the additional cost of
design and construction required to make the VQ resist progressive collapse. We found
the AF liable for $722,176 in design costs relating to progressive collapse. In its brief for·
this part of the claim PE stated its "structural engineers [had] to develop a series of costly
changes to other parts of the VQ building to support the (unnecessarily) heavy structure
against potential progressive collapse" (app. br. at 323). These construction costs are what
we found the AF liable f@, but we have yet to arrive at quantum. Rather than tracking
these construction costs directly, PE chose to quantify this claim with Mr. Tengler's
6 October 2014 estimate of cost savings for using the structural brick in place of the double
wall design (app. br. at 3223; R4, tab 3154). Mr. Tengler used the "RSMeans data base"
and took out "quantities of impacted work and applying time savings that would have been
realized" (tr. 4/98). We see no logical relationship between such an estimate of cost
savings and the actual increased cost of construction solely attributed to what was needed
to modify the VQ to resist progressive collapse. We note that the cost savings occasioned
by the change to structural brick addressed more than just progressive collapse
(finding 78). Mr. Bennett testified thatthe structural brick design change was intended in
part to address progressive collapse (finding 73). PE proved itself capable of tracking
costs for differing site conditions (unsuitable fill, organic layer, asbestos pipe and HTHW
installation problems) all of which occurred before the structural modifications to the VQ.
We do not understand why PE did not do the same for progressive collapse. We do not
accept Mr. Tengler's estimate of $1,906,401 as an accurate quantification of the additional
construction costs required to make the VQ resistant to progressive collapse. We agree
that PE is entitled to recover these construction costs, but it is PE's burden to prove the
amount. Mr. Tengler's estimate does not meet that burden. We have sustained entitlement
but deny the quantum claim based on Mr. Tengler's cost savings estimate of $1,906,401.
We are unable to calculate the amount PE is entitled to. This is another situation caused by
PE's insistence that we decide entitlement and quantum, while failing to present adequate
evidence on quantum.

         Balance of Construction Delay

       PE claims $449,943 for a 29-day delay in its quantum section discussing its
"Balance of Construction Phase" (app. br. at 483 ). PE failed to cite us to the location of its
discussion of this 29-day delay in its entitlement section. However, we were able to find it
in PE's analysis of its delay "Review Periods.'; 133 Apparently the 29 days is made up of
21 days in Review Period 7 (app. br. at 372-73 ), and 8 days in Review Period 8 (id. at
373.-75). The 21-day delay was "due to late installation of the standing seam metal roof'
(R4, tab 3004 at 43). The delay is depicted in Mr. Evans' Figure 15, Review Period 7


133
      These Review Periods correspond to Mr. Evans' expert report (R4, tab 3004).
                                            151
As-Planned and As-Built Schedule (id. at 42). Mr. Evans' expert report attributes this
21-day delay to a labor shortage caused by the delay in approval of the SSMR:

                 The Air Force apparently failed to consider the criticality of
                 the material approval and how it impacted the planning
                 efforts of Parsons and its metal roof subcontractor,·
                 Warburton's, Inc. When the submittal was approved on
                 April 19, 2007, Warburton's craft labor was already
                 committed to other projects, and labor availability for
                 McGuire AFB became an issue. Warburton' s personnel
                 stated in an interview that the uncertainty connected to the
               · Air Force's approval of the submittal led to the labor
                 availability issue.

(R4, tab 3004 at 40) Mr. Evans contends that because of the labor shortage, Warburton's
crew had to complete the TLF before moving to the VQ (id. at 40-41). In his testimony,
Mr. Evans adds "getting material" as a reason for the 21-day delay (tr. 8/74-75). The ·
problem with the evidence supporting the 21-day delay is that Mr. Evans' report and ·
testimony is based on only one interview 134 and is therefore hearsay.· Hearsay evidence is
admissible before the Board and can be a permissible basis for expert opinion, but where
(as here) it has little or no corroborating or indicia of trustworthiness, it is entitled to little,
if any, weight. PE directs us to no contemporaneous documents or sworn testimony from
Warburton or anyone else to support the assertion that the delay in approving the SSMR
caused the labor shortage and that labor from some other source could not be brought in to
work on the VQ. 135 Mr. Evans may be correct in his conclusion, but PE does not meet its
burden of proof with the evidence presented. We deny the claim for the 21-day delay.

        With respect to the remaining 8-day delay, Mr. Evans attributes it to the removal of
the catwalk in VQ wing A and redesign of the catwalks in wings Band C caused by
design changes needed to correct the VQ design to resist progressive collapse (app. br. at
374; R4, tab 3004 at 45). In our decision above we found the AF responsible for "the
additional cost of design and construction required to make the Baker 35% design resist
progressive collapse." This would include compensable delay. Unlike the 21-day delay
discussed above, there is record evidence supporting the 8-day delay. In her testimony,
CO Brown agreed that "in the 35 percent design, the shear walls in the different floors
didn't line up and they had to be moved in order to carry the loads down and meet the
progressive'collapse requirements" (tr. 12/109). In his testimony Mr. Rosenfeld agreed
that the catwalks had to be "redesigned when all that HV AC ducting had to be rerouted
into the attic in an effort to repair problems with the 35 percent design" (tr. 10/105).

134
      In Appendix C to his expert report, Mr. Evans lists subcontractors interviewed. One
          individual, Mr. Ken Francom, Warburton's SSMR subcontractor, is listed but that is
          all, no affidavit or even contemporaneous notes of the interview (R4, tab 3004 at 68).
135
      If there is such evidence in the voluminous record PE did not show it to us.
                                               152
However, we ran across a stumbling block when we looked at other evidence. PE's brief
stated, "The redesign [of catwalks] was processed through RFI 24 7 (R4, tab 400) in the
late summer and fall of 2007" (app. br. at 374). When we looked at RFI 247 we noticed it
predicted a cost savings stating, "it is our intention to provide the government with a credit
commensurate with the reduction in scope requested (R4, tab 400 at 1). A cost savings
change does not preclude a claim for delay damages associated with that change.
However, the catwalk re-design was discussed in a 25 October 2007 coordination meeting
where the following comment was entered in the meeting minutes:

              Update 10/25: Chuck corrected last week's statement and
              explained that with the concept approval in hand, Parsons·
              has completed the SOW and it is presently out/or bid. Shop
              drawings will be the responsibility ofsuccessful bidder and
              once in hand they will be submitted to the Gov for approval.
              This is no longer on the Critical Path due to the reduction
              in scope.

(R4, tab 401 at 2) (Bold added) For delay to be compensable, it must be on the critical
path. States Roofing, 10-1 BCA ~ 34,356 at 169,661 (citations omitted) (In order to
establish entitlement to delay damages, a contractor must demonstrate the extent of the
delay, the causal link between the government's alleged wrongful actions and the delay
and the resulting injury. The delay normally must be to work on the critical path, the
only work that affects overall completion of the contract work.). Since Mr. Evans did
not address the comment in the contemporaneous notes that the catwalk was no longer
on the critical path we are left with an unrefuted challenge to his allegation. Moreover,·
Mr. Evans' report gives no reason to believe that the catwalk activity was on the critical
path. Accordingly, we must deny PE's claim for the 8 days of compensable delay
·associated with the catwalks.

HTHWHeat

        While PE discusses this topic in its entitlement section, it does not include a
specific dollar amount and also does not have a separate section for HTHW heat in its
quantum section. The lack of a discussion in the quantum section is confusing. We
briefly comment on this topic below, but we conclude that the damages for "HTHW
Heat" must be included in other claims.

       The contract is silent on PE's use of the HTHW to heat the buildings
(findings 137-38). In any event, regardless of any contractual obligation to allow PE to
use HTHW for heat, we agree that delays for which the AF is responsible pushed work
into winter and the AF is liable for heating required for work to proceed. In the
subcontractor change order and acceleration claims we agreed with claims involving
enclosure of the buildings and provision of temporary heat.


                                           153
Standing Seam Metal Roof (SSMR) Approval Delay/Roof Truss Delay

        PE experienced a delay caused by a conflict between VQ roof truss design and an
elevator shaft design (finding 125). PE estimated a potential delay in the 27 December
2007 delivery date ranging from 12 work days to 5 weeks (id.). A total of 1 year, 2 months
and 19 days elapsed between the first SSMR S1Jbmittal on 16 February 2006 (finding 151)
and final approval on 7 May 2007 (finding 156). Although other issues were discussed,
we find that the primary cause of the SSMR approval delay was the AF's continued
insistence that "oil canning" be eliminated. The requirement that oil canning be eliminated
was modified to "seriously minimized" by Amendment No. 1 to RFP 8234, dated 24
March 2005, because it was acknowledged that it is inherent in the product and eliminating
oil canning was impossible (finding 150). Therefore, we find that the AF's persistent
insistence that oil canning be eliminated, even 'after Amendment No. 1 (findings 150-56),
was unreasonable and the AF is responsible for the critical path delay associated therewith. ·
According to PE's scheduling expert only a small portion of the elapsed time between the
first SSMR submittal on 16 February 2006 and final approval on 7 May 2007 was on the
critical path. We rely on Mr. Evans' CPM analysis where he identifies 32 days of
concurrent delay caused by the SSMR and roof trusses in Review Period 6 (R4, tab 3004 at
3 8). In its brief PE states, "Exponent ultimately classified the truss and roof delays as
concurrent (R4, tab 3004 at 38), so that Parsons would have no right to delay damages but
the Air Force would have no right to assess liquidated delay damages for the 32 days at
issue in review period 6" (app. br. at 372; tr. 8/71). We adopt that view and extend the
performance period by 32 non-compensable days.

Exterior Insulation & Finish Systems (EIFS)1 36

      PE claims that the AF was responsible f~r the delay associated with the use of
EIFS. In its brief PE states:

                       Parsons incurred significant extra expenses when it
                had to install EIFS in cold winter conditions that would and
                should have been avoided. The delays to the EIFS decision
                delayed the start of scaffolding, which further delayed site
                grading and landscaping around the building. Ultimately
                Parsons also incurred months of costs for its architect of
                record and other staff to debate the EIFS solution that was
                ultimately accepted.

(App. br. at 312-13) (Citation omitted)

      We see several problems with PE's argument. First, this entire string of events was
caused by two errors made by PE. ASI No. 8 corrected the 100% design that incorrectly

136
      There was almost no discussion of this issue at the hearing.
                                             154
required the installation of stucco over rigid insulation (finding 158). However, ASI No. 8
also contained an error relating to the window clearance (finding 160). Contributing to the
problem is Mr. Bennett's belief that RFP 8234 took precedence over the approved 100%
design developed by PE - it does not. Also, we disagree that the inherent nature of the
design-build contract gives PE the right to make unilateral changes to the final AF approved
100% for construction design. 137 The entire EIFS matter is simply the correction of two
mistakes by PE. We deny PE's claim relating to the use ofEIFS.

Project Closeout

      PE claims $222,416 in direct costs (app. br. at 478) and $80,532 for 15 days of
compensable delay (id. at 483) as a result of what it contends was an unreasonably long
closeout inspection to reach BOD on 11 September 2008. 138

         The PMP notified PE that "[ a]s minimum" seven AF organizations would "participate
in all final acceptance inspections." PE also knew it was responsible for providing
"sufficient advance notice for maximum participation by interested parties." _(Finding 67)
PE was required to conduct both pre-final and final inspections (finding 183}. The contract
sets up a procedure that envisions the final inspection concentrating on the pre-final
inspection results, "The [final] inspection shall concentrate on the items identified at the
pre-final inspection and recorded in the pre-final report" (finding 183). We conclude from
the record that the procedure envisioned by the contract involved a limited number of joint
inspections conducted by PE and the AF. What actually occurred was nothing like what the
contract envisioned.

       PE submitted its 14-day notice of pre-final inspection, and associated 1440 item
punch list, for the TLF on 27 April 2008 (finding 185). PE had intended to provide the
notice for both the TLF and VQ, but the TLF was ready before the VQ and PE wanted
to end liquidated damages on the TLF (id.). CO Brown explained she would not accept
the notice because the inspections of the TLF and VQ had to occur together in order to
minimize AF travel expenses (finding 187).

       PE submitted the 14-day notice of pre-final inspection for the VQ on 5 May 2008
(finding 188). CO Brown explained she would not accept the notice because of a
"cursory site tour" by AFCEE personnel (id.). There also seems to have been some
confusion on CO Brown's part about when SOW paragraph 3.2.2.2.2 required that the
Commissioning Final Report, the Test and Balance (TAB) Report be provided (id.).

      Liquidated damages (LDs) started on 28 December 2007, the day after the
completion date set in Mod. 3 (finding 162). Since PE was incurring LDs as of

137
      This is different from our decision that PE had the right to unilaterally make changes
         to the 35% design ..
138
      The amounts include markups (app. br. at 478, 483).
                                             155
28 December 2007, we find that time was of the essence. AmerescoSolutions, Inc.,
ASBCA No. 56811, 10-2 BCA ~I 34,606 at 170,549 (construction contracts generally
contain a liquidated damages provision, and the assessment of such damages indicates time
is of the essence); Keith Crawford & Associates, ASBCA No. 46893, 95-1BCA127,388
at 136,519 (time is of the essence in a government contract when, as here, it contains a
fixed date for performance and provides for the assessment of liquidated damages if the
fixed date is exceeded); Maysons Piping Contractors. Inc., ASBCA Nos. 28446, 29036,
86-1 BCA ~ 18,626 at 93,595 (the imposition of liquidated damages is evidence of the
government's intent to hold appellant liable for its delayed performance under the contract,
i.e., time is of the essence). We conclude that the finding that "'time is of the essence" is a
two-way street. We see no reason why the government cannot be held accountable for
failure to act in a timely manner when time is of the essence. It is clear according to the
PMP that seven or more AF organizations had the right to participate in the final
acceptance inspections (finding 67). However, it is also clear to us that since time was of
the essence, the AF had an affirmative obligation to marshal its organizations and have all
interested parties conduct whatever inspection they desire without delay. To the contrary,
the record indicates that the AF had absolutely no sense of urgency, whatsoever, in regard
to completing closeout and ending LDs. There is nothing in the contract that requires that
closeout inspections must wait until both the TLF and VQ are ready. The TLF and the VQ
were listed in separate contract CLINs (finding 65). Under the~e circumstances it would
have been appropriate to apportion the LDs between the TLF and VQ and deal with TLF
BOD first, separate from the VQ. We did so under similar circumstances in Dick Pacifzc
Construction; Co., ASBCA No. 57675 et al., 16-1 BCA ~ 36,196 at 176,638.

        The demand that both the TLF and VQ be available at the same time violated time
being of the essence. The AF's 28 inspections violated time being of the essence (finding
189). The AF's inspection delay in order to minimize travel expenses violated time being of
the essence (finding 187). CO Brown's delay based on an unexplained "cursory site tour"
violated time being of the essence (finding 188). Mr. Williams statement that because the
furniture was not yet delivered "there is no rush to accomplish the pre-final on the TLF"
violated time being of the essence (finding 186). Mr. Ro la's concerns over mechanical room ,-
noise was not based on contract requirements·, was unreasonable and violated time being of
the ·essence (findings 194, 196). Fluctuating numerous punch lists violated time being of the
essence (findings 190-92, 198). We will not hold PE liable for delay and liquidated damages
for the time while it awaited inspection when the AF had no concern over the time it took to
complete contract closeout when LDs were accruing.

       Fourteen days from 27 April 2008 was a Sunday so the first working day was
Monday 12 May 2008. The AF could have started pre-final at the TLF on that day ..
Fourteen days from 5 May 2008 was Monday 19 May 2008. The AF could have started
pre-final at the VQ on that day. The parties agree that BOD is 11 September 2008
(finding 197). We accept Mr. Cardinale's assessment that there had been 28 separate
inspections during that time (finding 189). We accept PE's chronology of inspections and
punch lists (findings 192, 198). We take into consideration Mr. Rothwell's opinion that, if

                                            156
everything was coordinated, the AF team should be able to complete an inspection in
"approximately a week" (finding 189). We also recognize that PE does not quarrel with
the individual punch list items. but rather the excessive time taken during all the
inspections by various AF entities from various locations across the country (finding 198;
app. br. at 336). We find that the time it took for the AF to complete its inspections and
reach BOD was unreasonable and violated its obligation imposed by time being of the
essence. A&D Fire Protection, Inc., ASBCA Nos. 53 I 03, 53838, 02-2 BCA 132,053 at
158,448 (work required by over-zealous inspectors in multiple punch lists is compensable);
HG. Reynolds Co., ASBCA No. 42351 et al., 93-2 BCA 125,797 at 128,375 (citation
omitted) ("The Government is entitled to conduct a strict and intensive inspection to
ensure that it is getting what it is entitled to under a construction contract. However, if as
in the matter before us. the contractor's work is subject to multiple inspections to differing
standards by different officials, an equitable adjustment should be granted for any delay or
increased costs occasioned thereby."); Hull-Hazard, Inc., ASBCA No. 34645, 90-3 BCA
~ 23,173 at 116,306 (quoting WF. Kilbride Constr., Inc., ASBCA No. 19484. 76-1 BCA
~ 11,726 at 55,884) ("'[I]f inspection procedures are confusing and vacillating, and the
contractor's work is subjected to multiple inspections to differing standards by different
officials, an equitable adjustment should be granted under the Changes clause for any
delay or increased costs.").

       PE accepts that the '"reasonably allowed duration of the close out" was "April
through June 2008" (app·. br. at 478). However, we found above that closeout
inspections could have started on 12 May 2008 for the TLF and 19 May 6008 for the_
VQ. Therefore we conclude that the closeout should have rim from mid-May 2008
through June 2008. This means that BOD should have occurred at the end of June
2008. PE claims $222,4 I 6 for "general overhead and direct charged costs commencing
in July 2008 through final completion in September" (id.). We accept this amount as
reasonable. The AF is liable for $222,416 in direct costs for failing to complete
closeout in a timely manner.

        Now we deal with PE's claim for closeout compensable delay. The first problem
we encounter relates to dates. Based on our 332 days of excusable delay the delivery date
was 5 June 2008. One could argue that LDs could start on 6 June 2008 unless PE proves
more excusable delay. Since PE agrees that BOD should have occurred by 30 June 2008,
'arguably PE could be liable for LDs from 5 June 2008 to 30 June 2008. However, since
BOD in fact occurred on 11 September 2008, arguably there could be 72 days of excusable
delay from 1 July 2008 through 11 September 2008. PE asks for 15 days of delay. None
of this was litigated or briefed and we do not attempt to sort it out.

        PE's brief only adds to the confusion. In its Quantum section, PE clearly claims
$80,532 for 15 days of compensable delay (app. br. at 483). In its entitlement section PE
states; ''At trial, however, Dick Cardinale explained that the final Test-and-Balance [TAB]
and commissioning reports should properly be treated as conditions to final acceptance and
not preconditions to BOD" (app'. br. at 345). PE then said, ''Based on this unchallenged

                                           157
 evidence, Mark Evans revised his analysis by re-characterizing 15 days of concurrent
 delay as AF delay. (Tr. 8/92:3-10)." (Id.) However, we look at Exponent's expert report
 and see 16 days delay allocated to PE and 15 days of delay allocated to the AF and they do
 not appear to be concurrent (R4, tab 3004 at 49-50). Later in the entitlement section PE
 writes, "Under this revised allocation of delays, Parsons believes that Table 14 in the
 Exponent report (R4, tab 3004 at 50) should be revised so that only 4 days are allocated to
 Parsons, while the remaining 27 days are allocated to the Air Force in review period 1O"
 (app. br. at 379-80). From this we gather that maybe PE should be claiming for 27 days of
 compensable delay. We are not, however, responsible for figuring out what PE might have
 claimed.

        In any event, we also see contemporaneous documents establishing that, at the time,
 both parties believed that the TAB, and Commissioning reports were pre-conditions to
 BOD. PE developed a schedule that clearly showed this (finding 184). Paragraph
 3.2.2.2.2 Delivery/Warranty states that all inspections and commissioning requirements
 will be completed before final inspection (finding 183). The as-planned and as-built CPM
 schedules shown in Exponent's report show TAB and Commissioning reports delivered
 before BOD (R4, tab 3004 at 49). Therefore, the record does not support Mr. Cardinale's
 testimony to the contrary. The confusion in the record, particularly PE's argument in its
 brief that the 15 days was previously considered by its expert to be concurrent delay (app.
 br. at 345, 377), causes us only more confusion. It is PE's burden to prove this delay claim
 in a clear and unambiguous manner. PE failed in this regard. We deny PE's claim for
 compensable closeout delay.

 Design Notice to Proceed (NTP)

        PE contends that it is entitled to a 14-day delay in issuing the design NTP (app. br. at
 362). We disagree. First, there was no requirement for a design NTP (finding 68). Second
 the NTP issued on 25 July 2005 stated that its effective date was the date of DO 13 which
 was 13 July 2005 (finding 68). Third, Mr. Binks signed the 25 July 2006 NTP
 acknowledging receipt and we find Mr. Hillestad's testimony that PE agreed with the
 effective date credible (finding 68). PE is not entitled to a 14-day delay in the design NTP.

 Submittals

         PE attributes delay to the AF in approving its submittals. However, PE's analysis
  is fundamentally flawed. PE contends that submittals have to be processed within
  14 calendar days (app. br. at 133). PE relies on a document at the very end ofRFP 8234,
  SOW Attachment Sb, Section 01300 Submittals, Paragraph 3.02 Timing of Submittals,
  paragraph B, "Allow 14 calendar days for review by the Government of each submittal
  item" (id.; R4, tab 2 at 1787). We, however, rely on Section O1330 - Submittal
  Procedures. This specification provides that submittals first go to the QC -Manager and
  allows 15 working days for approval. If the submittal requires CO approval, the CO has an
. additional 20.working days from receipt to approve the submittal. This procedure applies

                                             158
to resubmittals. (Finding 21) Therefore, the submittal approval requirement, without
resubmittal, ranges from 15 working days to at least 3 5 working days or seven weeks
depending on who approves the submittal. Because PE used the incorrect approval times
and the lack of testimony on the details of each submittal, including resubmittals, PE failed
to meet its burden of proof on all of its submittal delay arguments.

Schedule De lay/Extended Overhead ($3, 184,150)

       We addressed the individual components of this claim earlier in this decision.
The results are reflected in the table below:
                            (

             Claim          I   PE Days    PE Amount     Decision    Decision
                                                          Days       Amount
      NTP Delay[ 14o1             83            $161,194   70       $135,955
      Clean Site Delay                    Included in      28        $75,055
                                          earthwork
      Earthwork Differing         226       . $1,995,993   182    $1,607,356
      Site Conditions
      Triarch (paint)             32         $496,488     20           $310,297
      Balance of Constr.          29         $449,943      0                   0
      Closeout                    15          . $80,532    0                   0
                                 Total      $3,184,150 Total         $2, 128,663( 141 1

Incomplete Wage Determination & OSI Investigation ($393,195)

      We have carefully read PE's 37 pages of unnumbered facts in its initial brief, the
AF's 277 PFFs in 42 pages in its brief and PE's 17 pages of reply brief- all devoted to
the DBA compliance and OSI Investigation issues. ·we conclude that we need not
attempt to delve into this aspect of the appeal in anywhere near that level of detail.

        There are three distinct parts of the original claim: {l) Omissions of wage
classifications in WD NJ20030002; (2) the AF's review of PE's payrolls 142 ; and (3) the OSI
investigation. W~ deal with the OSI investigation first. PE invites us to find a link between
the investigation and the AF's review of PE's payrolls, "It is of course difficult to prove
what was in the minds of AFCEE or the OSI investigators, but we believe the evidence
permits the Board to infer a relationship between those activities" (app. reply br. at 206).
PE's argument seems to be that the payroll reviews and investigation were in retaliation for
PE's notice that it was going to submit a multi-million dollar claim. However, Ms. Hom's ·
testimony and the ROI persuade us that the investigation was initiated by the OSI as a result

140
      PE identifies this as Design Impact.
141
      This amount has already been added into the recovery and should not be added again.
142
    · As noted in footnote 1, the AF payroll review claim is dealt with in anothet decision
         issued simultaneously.
                                            159
  of information provided by non-government confidential sources and not the AF (findings
  208-09). PE h~s not proven that the AF is in any way responsible for the OSI investigation
  or that it should be liable for PE's costs to defend itself against the OSI investigation. That
  aspect of this claim is denied.

            Next we deal with the WD omissions. The AF first noticed payroll classifications
    that were not on WD NJ20030002 in early 2008 (finding 204). This fact is perplexing to us
    because all of the workers on this project were getting paid. Each-worker was supposed to
    be paid a wage identified in the WD. This information was needed for PE and its
    subcontractors to bid on the contract or at a minimum perform the contract. We do not see
· · how either PE or its subcontractors could miss the fact that classifications needed to
    perform the work were not in WD NJ20030002. As a result of payroll reviews in 2008 the
   AF notified PE that classifications for carpenter, plumber, journeyman and pipefitter were
    in payrolls but not in WD NJ20030002 (finding 205). Eventually letters of inadvertence
   were issued for bricklayers, stonemasons, marble masons, cement masons, plasters, tile
    layers, terrazzo workers, elevator mechanics, carpenters, insulators, millwrights, soft floor
    layers, and drywall finishers/tapers (finding 207).

        -We start by looking· at the FAR to see if it benefits contractors. PE argues that the
 AF violated FAR 22.404-3 that required the AF to "[i]mmediately upon receipt" review
 wage determinations and inform DOL of any changes needed to correct errors (app. br. at
 386-87). We agree that this regulation benefits PE and its subcontractors because it is
 supposed to ensure that they know what wages to use in establishing their bids and
 performing the contract. We also agree that the AF did not catch the omissions in the WD
 and arguably violated the regulation. This situation is, however, much different than was
 the case with the payroll reviews because PE and its subcontractors were in a better
 position to catch these omissions than the AF. It was PE and its subcontractors who knew
 what types of workers would be used, not the AF. We also consider that DCAA in its
 audit noted that DOL DBA rates are posted onDOL's website and were easily accessible
 to PE (R4, tab 213 at 34). We are not going to hold the AF liable for this part of the claim
 because PE and its subcontractors were in the best position to see this omission, should
 have identified the omissions very early either in bidding or the creation of their payrolls
 and notified the AF of the omission. We see no harm to PE and deny this claim.

 Subcontractor Change Order Price Escalation ($290,634)

         According to PE, this claim "represents the additional cost incurred by Parsons on
 subcontractor change orders because the work was performed in a period significantly
 later than anticipated due to Government-caused delays. The calculation is being applied
 only to the subcontractor change orders that are considered to be the responsibility of ·
 Parsons." (App. br. at 486) (Citation omitted) In our earlier denial of PE's buyout claim
 we explained why PE was not entitled to escalation due to competition from China and
 Hurricane Katrina. The same logic applies here. Also, PE fails to explain why the AF
 should be liable for escalation based on change orders that it admits are the responsibility

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 of PE. Additionally, this claim was not well developed in the entitlement secti,on of PE's
 brief. PE has not met its burden of proof and we deny this claim.

 Unpaid Contract Balance ($347,526)

        The AF extended the period of performance twice, 126 days in Mod. 2 and 171
 days in Mod: 3) (findings 92, 124 ). The contractual delivery date after Mod. 3 was
 27 December 2007 (finding 124). PE was assessed liquidated damages from 28 December
 2007 (finding 162). The $347,5_26 is the total amount of liquidated damages assessed from
 28 December 2007 to BOD on 11 September 2008, a total of258 days at $1,347 per day.

        We found a total of332 days of excusable compensable delay (NTP 70, Clean
Site 28, Earthwork 182, Paint 20) plus 32 days of critical concurrent delay ·
(SSlVIR/Truss). The delivery date in effect when the majority of th~se days occurred
was 9 July 2007, established in Mod. 2 (finding 92). Therefore, we run the 332 days
from 9 July 2007 for a delivery date of 5 June 2008. In our decision on contract
closeout we agreed with PE that BOD (substantial completion) should have occurred no
later than end of June 2008; We commented earlier that we would have accepted an
earlier BOD date. Liquidated damages may not be assessed after BOD, notwithstanding
remaining punch list items. Dick Pacific, 16-1 BCA ,r 36,196 at 176,636-37. Therefore,
the AF had no right to assess liquidated damages and the $347,526 must be returned.
We sustain the contract balance claim in this amount.

 CDA Jurisdiction/Interest

          One final matter that requires addressing is the source of our jurisdiction to
  consider this appeal since the government agency with which Parsons contracted, the
  Air Force Services Agency, is a non-appropriated funds instrumentality (NAFI). Until
  recently, the source of our jurisdiction to entertain appeals involving NAFis was not the
  CDA, but the portion of our charter that allowed us to consider appeals to which the
· parties had contractually agreed to the Board's authority to resolve their disputes. See,
  e.g., Computer Valley International, Ltd., A_SBCA Nos. 39658, 40496, 94-1 BCA
  ,r 26,297 at 130,796; D 'Tel Communications, ASBCA No. 50093, 97-1 BCA ,r 29,251 at
   145,504. This was consistent with "the NAFI doctrine," controlling law from the
  United States Court of Appeals for the Federal Circuit (the Federal Circuit) that held
  that the CDA did not grant the Court ofFederalClaims or the Boards of Contract
  Appeals jurisdiction over matters involving NAFis (and neither did the Tucker Act).,
  See, e.g., Furash & Co. v. United States, 252 F.3d 1336, 1342-44 (Fed. Cir. 2001). An
  important consequence of the lack of CDA jurisdiction is that we had no basis to award
  interest in appeals involving NAFis.

      The continued viability of the NAFI doctrine with respect to appeals brought
pursuant to the ,CDA was called into question by the recent en bane decision of the
Federal Circuit in Slattery v. United States, 635 F.3d 1298 (Fed. Cir. 2011) (en bane). In

                                            161
Slattery, the Federal Circuit concluded that the NAFI doctrine no longer applied to
lawsuits brought in the Court of Federal Claims pursuant to the Tucker Act. 635 F.3d at
1321. It has since been argued that the same logic that dictated the end of the NAFI
doctrine for Tucker Act suits should also apply to suits and appeals brought pursuant to
the CDA, notably, in the Federal Circuit appeal of Minesen Co. v. McHugh, 671 F.3d
1332 (Fed. Cir. 2012). In Minesen, however, the Federal Circuit "decline[d] to decide the
issue" because it was a "complex" matter that did not need to be addressed due to the
circumstances in that case. 671 F.3d at 1337. There was.a dissent in Minesen, which
approached the appeal in a manner that required resolution of the question of whether the
CDA was applicable and which found that Slattery ended the NAFI doctrine as applied to
the CDA. See 671 F.3d at 1345 (Bryson, J., dissenting). There has been no further
guidance from the Federal Circuit and we have not yet decided this question of law,
ourselves, though we have recognized its pendency. See CP ofBozeman, Inc., ASBCA
No. 58491, 15-1BCA136,035 at 176,013; Harry Richardson, ASBCA No. 57582, 12-1 .
BCA 134,902 at 171,618. In the appeal before us here, however, the issue must be
addressed and, as will be seen, we are of the opinion that the reasoning in Slattery
compels us to conclude that the CDA applies to NAFis, such as the one here.

       Until Slattery, the foundational underpinning of the NAFI doctrine - as applied to
both the Tucker Act and the CDA - was that the law required payments for breaches of
contract to be paid by appropriated funds and that NAFis did not have access to such
funds. See, e.g., United States v. General Elec. Corp., 727 F.2d 1567, 1570 (Fed. Cir.
1984); Furash, 252 F.3d at 1342; Pacrim Pizza Co. v. Pirie, 304 F.3d l291 (Fed. Cir.
2002). The Federal Circuit in Furash further explained that Congress intended the NAFI
doctrine to apply "in the same fashion to the CDA as it does to the Tucker Act." 252 F.3d
at 1343. In Pacrim Pizza, the Federal Circuit emphasized that the decision in Furash,
extending the NAFI doctrine to the CDA, rested largely upon the CDA's enumerating
certain NAFis to which the CDA applied and therefore implying that the CDA did not
apply to non-enumerated NAFis. 304 F.3d at 1293. Slattery changed all that.

          In Slattery, a Tucker Act case, the Federal Circuit's revisiting of the NAFI doctrine,
  inter alia, rejected the notion that Congressional enumeration of some NAFis as being
  excepted from the NAFI doctrine meant that non-enumerated NAFis were thus subject to it.
  635 F.3d at 1313-14. In large part, because the enumerated/non-enumerated distinction was
  critical to finding Congressional intent to limit Tucker Act jurisdiction, 63 5 F .3 d at 1311,
  and because the Federal Circuit held that, without an explicit withholding of jurisdiction by
  Congress, there would be Tucker Act jurisdiction over contracts entered on behalf of the
  United States, the court determined that the NAFI doctrine was no longer applicable to
. cases brought pursuant to the Tucker Act. Id. at 1320-21.

       Since, as discussed above, the application of the NAFI doctrine to the CDA
largely piggybacked on the numerated/non-enumerated distinction shared by both the
CDA and the Tucker Act, the Federal Circuit's rejection of that distinction in Slattery
leads us to the conclusion that there remains no basjs for continuing to apply the NAFI

                                             162
doctrine to CDA appeals. 143 This is the logic that underlies the relevant portion of
Judge Bryson's dissent in Minesen, see 671 F.3d at 1343-44, and we find it persuasive.
To be sure, we recognize that Judge Bryson's dissent was a dissent, but the majority in
Minesen did not reject this portion of its logic; it just never needed to address it. The
government argues that the Minesen majority declined to overrule its prior cases
applying the NAFI doctrine to the CDA, meaning that such cases were still controlling
(gov't supp. reply br. at 2), but the government makes too much of the Minesen
majority's inaction: it did not decide to leave the old precedent in place, it merely took
no action on the NAFI doctrine at all. See 671 F .3d at 1336. Moreover, the Slattery
court expressly overruled the relevant portion of Kyer v. United States, 369 F.2d 714
(Ct. Cl. 1966) and the s·ubsequent cases which relied upon Kyer, upon which the NAFI
doctrine was founded. Slattery, 635 F.3d at 1320. Furash, which applied the NAFI
doctrine to CDA appeals, is just such a case, see Slattery, 671 F.3d at 1310, making it
arguable that the Federal Circuit directly overruled it in Slattery. In the end, we
conclude that eliminating the NAFI doctrine's application to CDA appeals shows
greater fidelity to the Federal Circuit's direction in Slattery than allowing it to remain,
and nothing in Minesen requires a different outcome or suggests otherwise.

        As a final consideration, we note that we can discern no good reason for agencies
relying on directly appropriated-funds to be subject to CDA interest when those that are
NAFis are not. To that end, we have less reason to believe that Congress intended the
rules to differ between NAFis and other government agencies, and we have less reason
to believe that this decision would be in any way contrary.to public policy.

       This appeal is within our CDA jurisdiction, and as a consequence, PE is entitled
to CDA interest, which runs at the statutory rate from the time that it submitted its
claims.




143
      We understand that in other venues, the government has argued that a distinction
         between the language in the Tucker Act, applying it to contracts "with the United
         States," and the language in the CDA, applying it to contracts "with executive
         agencies" constituted an additional reason to treat NAFis differently under the
         CDA than under the Tucker Act. The government has not made that argument
         here. Moreover, none of the Federal Circuit cases applying the NAFI doctrine to
         the CDA relied upon that distinction. Post Slattery, we will not search for new
         bases to keep the NAFI doctrine alive that were never before a basis for that
       . doctrine. Moreover, the distinction in statutory language is a distinction that we
         find to be one without a difference here.
                                             163
                                     CONCLUSION

       For the reasons stated in this decision, we sustain in the total amount of $10,519,082
and deny the rest of PE's claims. CDA interest shall run from 29 June 2012, the date of PE's.
claim.

       Dated: September 5, 2018




                                                    CRAIG S.
                                                    Administr ive Judge
                                                    Armed Services Board
                                                    of Contract Appeals



 I concur in result (see separate opinion)         . I concur in result (and join in
                                                     Judge Shackleford's opinion)


                                                      ~ /

  RICHARD SHACKLEFORD                               J. REID PROUTY
  Administrative Judge                              Administrative Judge
· Acting Chairman                                   Vice Chairman
  Armed Services Board                              Armed Services Board
  of Contract Appeals                               of Contract Appeals




                                             164
             OPINION BY AOMINISTRATIVE JUDGE SHACKLEFORD
                         CONCURRING IN RESULT

       We agree with the amounts awarded in the opinion by Judge Clarke and thus to
that extent we concur in the result. We differ, however, over the role that FAR 31.201-2
plays in proving damages and Judge Clarke_'s interpretation of this provision.

        Generally, with respect to the costs it claimed, appellant stated in its post-hearing
brief as follows:_

                     Once the costs have been shown to have been
              incurred, the issue becomes_ whether the contractor's
              claimed costs are allowable. FAR 31.201-2 states that the
              costs are allowable if they comply with the following
              requirements: reasonableness, allocability, and consistency
              with the cost accounting standards (CAS) or generally
              accepted accounting principles, the terms of the contract and
              any limitations set forth in FAR 31.2 (especially the cost
              principles at 31.205). We shall address each of these
              requirements as it applies to this appeal.

(App. br. at 427) Thereafter appellant sought to show how the evidence met each of those
requirements (id. at 427-31).

      The government placed less reliance upon FAR 31.201-2, citing traditional Board
and court precedent as follows:

              The contractor has the burden to show that its claimed
              costs were incurred as a result.of, or were caused by the
              Government's changes. [Citations omitted.] This
              causation requirement is similar to that recognized under
              the well settled law of damages: "Recoverable damages
              cannot be proved by a naked claim for a return of costs
              even when they are verified. The costs must be tied in to
              fault on defendant's part." River Construction
              Corporation v. United States, 159 Ct. Cl. 254, 270 ( 1962).

(Gov't br. at 466) (citing Stewart & Stevenson Services, Inc., ASBCA No. 43631, 98-1
BCA 'tl 29,653 at 146,925, affirming 97-2 BCA 'tl 29,252).

        While vye do not contend here that FAR 31.201-2 never has a place in an analysis of a
monetary claim based upon a change ( directed or constructive), or a differing site condition, or
a ciaim for delay damages, or breach damages, we believe that Judge Clarke's total reliance on
that provision as the basis for proof of damages was unnecessary and was inconsistent with our
establishe~ case law and that of our appellate court.
                                            165
        More particularly, we take great issue with that portion of the damages analysis
which leads up to the conclusion that PE has satisfied its burden to prove its claimed costs
were reasonable when the government challenged all costs hut failed to challenge the
reasonableness of any specific cost in the claim, stating "Such a blanket challenge to all·
costs is insufficient to satisfy FAR 3 l.201-3(a)." This finding has no place in our analysis
of the damages, as the reasonableness of the amounts is appellant's burden to show,
unaided by the government's failure to challenge the reasonableness of specific costs.

        Once a CO's final decision is appealed to this Board, the parties start with a clean
slate and the contractor bears the burden of proving liability and damages de nova.
Wilner v. United States, 24 F.3d 1397, 1401-02 (Fed. Cir. 1994) (en bane). Further,
"[t]he claimant bears the burden of proving the fact ofloss with certainty, as well as the
burden of proving the amount of loss with sufficient certainty so that the determination
of the amount of damages will be more than mere speculation.'·' Lisbon Contractors,
Inc. v. United States, 828 F.2d 759, 767 (Fed. Cir. 1987) (quoting Willems Indus., Inc.,
v. United States, 295 F.2d 822, 831 (Ct. Cl. 1961)).

        Notwithstanding FAR 31.201-2 and -3, which directs how COs and the DCAA
should evaluate costs, our review of the record leads us to conclude that for the damages
awarded by Judge Clarke, appellant proved liability on the part of the government,
proved the costs were incurred and were reasonable with "sufficient certainty" such that
the amount of damages awarded is "more than mere speculation." There was no
requirement nor need to follow FAR 31.201 to evaluate this claim and thus, we concur
in the result but not the analysis.

       Dated: September 5, 2018


                                                    RICHARD SHACKLEFORD
                                                    Administrative Judge
                                                    Acting Chairman
                                                    Armed Services Board
                                                  · of Contract Appeals

 I concur




J.DOlJTy
Administrative Judge
Vice Chairman
Arpied Services Board
of Contract Appeals
                                            166
      I certify that the foregoing is a true copy of the Opinion and Decision of the
Armed Services Board of Contract Appeals in ASBCA No. 58634, Appeal of Parsons
Evergreene, LLC, rendered in conformance with the Board's Charter.

      Dated:



                                                   JEFFREY D. GARDIN
                                                   Recorder, Armed Services
                                                .. Board of Contract Appeals




                                          167
