GSBCA

MARON CONSTRUCTION CO., INC., APPELLANT,

v.

GENERAL SERVICES ADMINISTRATION, RESPONDENT.

MOTIONS FOR SUMMARY RELIEF DENIED: April 7, 1998

Charles S. Kirwan of Charles S. Kirwan & Associates, Pawtucket, RI, counsel for Appellant.

Kevin S. Anderson, Office of General Counsel, General Services Administration,Washington, DC, counsel for Respondent.

Before Board Judges PARKER, NEILL, and DeGRAFF.

DeGRAFF, Board Judge.

Maron Construction Co., Inc. (Maron) contracted to perform renovation work for the General Services Administration (GSA). Maron finished the work after the completion date established by GSA and after the date Maron says it expected to complete the work. Maron submitted a claim to GSA and asked to be compensated for delay that Maron contended was caused by GSA. The parties filed cross-motions for summary relief and asked us to resolve three parts of Maron's claim. As explained below, we deny the motions.

Findings of Fact¹

On May 7, 1993, GSA awarded a contract to Maron for renovations to the J.O. Pastore Federal Building and United States Post Office in Providence, Rhode Island. Exhibit 6. On June 29, 1993, GSA issued the notice to proceed, which stated that the work required by the contract had to be completed within 660 days after June 29, 1993, which was April 20, 1995. Exhibit 8. On-site work was to begin no earlier than December 1, 1993. Exhibit 4 at 11.

The three sections of the contract that are relevant to the pending motions are set out below. The first two sections are part of the contract's General Conditions. The third section is part of the contract's technical specifications. Exhibit 1 at iii.

FAR 52.243-2 -- Changes (Aug 1987)

(a) The Contracting Officer may, at any time, without notice to the sureties, if any, by written order designated or indicated to be a change order, make changes in the work within the general scope of the contract, including changes --

(1) In the specifications (including drawings and designs);

(2) In the method or manner of performance of the work;

(3) In the Government-furnished facilities, equipment, materials, services, or site; or

(4) Directing acceleration in the performance of the work.

(b) Any other written or oral order, (which, as used in this paragraph (b), includes direction, instruction, interpretation, or determination) from the Contracting Officer that causes a change shall be treated as a change order under this clause; provided, that the Contractor gives the Contracting Officer written notice stating (1) the date, circumstances, and source of the order and (2) that the Contractor regards the order as a change order.

(c) Except as provided in this clause, no order, statement, or conduct of the Contracting Officer shall be treated as a change under this clause or entitle the Contractor to an equitable adjustment.

(d) If any change under this clause causes an increase or decrease in the Contractor's cost of, or the time required for, the performance of any part of the work under this contract, whether or not changed by any such order, the Contracting Officer shall make an equitable adjustment and modify the contract in writing. However, except for an adjustment based on defective specifications, no adjustment for any change under paragraph (b) of this clause shall be made for any costs incurred more than 20 days before the Contractor gives written notice as required. In the case of defective specifications for which the Government is responsible, the equitable adjustment shall include any increased cost reasonably incurred by the Contractor in attempting to comply with the defective specifications.

Exhibit 1 at 33-34.

GSAR 552.243-71 -- Equitable Adjustments (Apr 1984)

(a) The provisions of the “Changes” clause prescribed by FAR 52.243-2 are supplemented as follows:

(3) The Contractor shall submit with the proposal his request for time extension (if any), and shall include sufficient information and dates to demonstrate whether and to what extent the change will delay the contract in its entirety.

Exhibit 1 at 34-35.

Section 01311 - Critical Path Method Scheduling

 Part I - GENERAL

1.3 INITIAL SUBMITTALS

C. Within 45 calendar days after receipt of notice to proceed, submit ... a computer-produced schedule... showing early and late starting and finishing dates for each activity in terms of the number of days after receipt of notice to proceed. All completion dates shown shall be within the period specified for contract completion. The backward calculations for late dates will be done by forcing the end date of the project to be the contract completion date as specified by the contract documents.

1.8 PROGRESS REPORTING AND CHANGES

D. Total float is defined as the amount of time between the early start date and the late start date, or the early finish date and the late finish date, of any activity in the project schedule. And is further defined as the amount of time any given activity or path of activities may be delayed before it will affect the project completion time. Total float is not time for the exclusive use or benefit of either the Government or the Contractor, but must be used in the best interest of completing the project on time. Extensions of time for performance required under the General Conditions pertaining to equitable time adjustment will be granted only to the extent that the equitable time adjustment exceeds total float in the activity or path of activities affected at the time notice to proceed was issued for the change. The government shall not be responsible for any delays or for the contractor's extended overhead if such delay time can be absorbed in total float. Nor shall the government be responsible for payment for any delays or for contractor's extended overhead which exceed total float unless the delay is government caused. The government shall only be responsible for government caused delays to the extent they exceed total float without the presence of any concurrent non government caused delay. Free float is defined as the least time between the early finish date of one activity and the early start date of any subsequent activity of which it is a dependency.

F. Each update will continue to use the project completion date as specified in the contract documents or as modified by a time extension granted by the contracting officer for the backward calculations to determine the late dates and floats.

Exhibit 1 at 146-47, 150-51.

On November 14, 1995, Maron submitted a claim to the GSA contracting officer. Maron asserted that GSA had delayed Maron's progress starting shortly after December 1, 1993, when it began work. Exhibit 217. Maron calculated that GSA was responsible for a total of 320 days of delay, every day from December 1, 1994, when Maron says that it would have completed the contract work if not for GSA's delays, through October 16, 1995, when Maron substantially completed the contract work. Exhibit 217 at 62-63. Maron claimed that GSA was liable for delay damages for those 320 days consisting of direct costs, indirect costs, and profit. Exhibit 217 at 66-76.

GSA believes that it is responsible for 107 days of compensable delay that occurred after April 20, 1995. Exhibit 243, Attachment 15; Appellant's Statement of Uncontested Facts ¶ 8; Respondent's Statement of Genuine Issues at 1. On June 21, 1996, the contracting officer issued a decision denying Maron's claim. Exhibit 221. This appeal followed.

Between December 1993 and mid-October 1995, Maron submitted bids for approximately 240 projects worth nearly $125 million. Exhibit 230. Maron's bonding capacity did not decrease between January 1993 and December 1995. Exhibit 234.

Between December 1993 and mid-October 1995, Kendland Company, Inc. (Kendland), one of Maron's subcontractors, submitted bids for approximately 105 projects. Exhibit 235. Kendland's bonding capacity increased between 1993 and 1994. Its bonding capacity was restricted in 1995, due to financial losses incurred by a related business activity. Exhibit 241.

Discussion

In order to grant any part of either party's motion for summary relief, we must decide that there is no genuine dispute as to any material fact and that the moving party is entitled to relief as a matter of law. Rule 8. 48 CFR 6101.8 (1995). We deny the motions concerning early completion delay damages, because there are genuine disputes concerning material facts and neither party is entitled to relief as a matter of law. We deny the motions concerning unabsorbed overhead, because there is a genuine dispute concerning a material fact. We deny Maron's motion concerning second floor tie-in drawings, because there are genuine disputes concerning material facts.

I. Early Completion Delay Damages

Of the 320 days for which Maron claims delay damages, 142 days fall between December 1, 1994, and April 20, 1995. The parties refer to the damages that Maron seeks for these 142 days as early completion delay damages.

In its motion, GSA argues that it is entitled to summary relief concerning early completion delay damages for two reasons. First, says GSA, the contract established April 20, 1995, as the contract completion date and Maron cannot show either that it intended to complete the contract before that date or that it had the capability to complete the contract before that date. Second, says GSA, section 01311 of the contract insulates GSA from liability for early completion delay damages occurring before April 20, 1995. Respondent's Motion at 3-10.

In its motion, Maron argues that it is entitled to summary relief concerning early completion delay damages, for two reasons. First, Maron argues that section 01311 is unenforceable because GSA did not obtain permission to deviate from a mandatory Federal Acquisition Regulation (FAR) clause in order to use that section, because GSA waived the application of section 01311, and because several GSA contract violations bar GSA from using section 01311. Second, says Maron, it would have completed the contract early but for GSA's actions. Appellant's Renewed Motion at 28-93.

A. Section 01311

Section 01311 of the contract concerns Critical Path Method (CPM) scheduling. CPM scheduling is a technique often used to manage construction projects. In order to prepare a CPM schedule, one must break the construction project into its component activities, determine the amount of resources (including time) required by each activity, decide how the activities are connected to one another, and prepare a schedule for completing the project that takes into account the relationships between the activities and the proper sequence for performing the activities. A CPM schedule can show several paths containing activities necessary to complete the project. The longest path running through the project from beginning to end is considered “critical.” Any delay to an activity along the critical path will delay completion of the entire project. Paths through the schedule are not critical if the activities on those paths can experience some delay without resulting in a delay to overall project completion. The amount of delay that a path or an activity can experience without delaying completion of the project is called “float.” The critical path has no float. A path or an activity that is not critical when a CPM schedule is developed can become critical if all of the float available for that path or activity disappears. J. Wickwire & R. Smith, The Use of Critical Path Techniques in Contract Claims, 7 Pub. Cont. L.J. 1 (1975).

Section 01311-1.3C of the contract tells Maron that when it prepares its CPM schedule, it must force the end date of the project to be the contract completion date (April 20, 1995), and then calculate backwards from that date to arrive at the late start and late finish dates for the project. Section 01311-1.8F tells Maron to use the contract completion date when it prepares its CPM schedule updates.

Section 01311-1.8D of the contract defines “total float” as the amount of time an activity or path of activities can be delayed before it will affect the project completion time. Section 01311-1.8D provides that GSA will make equitable time adjustments pursuant to the contract's General Conditions, which includes the Changes clause, only to the extent that the time adjustment exceeds total float in the activity or path affected at the time a notice to proceed was issued for the change. This section also provides that GSA is not responsible for any delays or for Maron's extended overhead if the delay can be absorbed by total float. Further, section 01311-1.8D says that GSA is not responsible for payment for delays or extended overhead which exceed total float unless GSA caused the delay, and that GSA is responsible for delays it causes only if they exceed total float without any concurrent nongovernment-caused delay.

Provisions such as section 01311-1.8D are not unusual in construction contracts awarded by federal government agencies. McCoy Brothers,Inc., ASBCA 40070,95-2 BCA ¶ 27,775; Batteast Construction Co., Inc., ASBCA 35818,92-1 BCA ¶ 24,697; RobGlo, Inc., VABCA 2879, 91-1 BCA ¶ 23,357; Gulf Contracting, Inc., ASBCA 30195, 89-2 BCA ¶ 21,812, affd, 23 Cl. Ct. 525 (1991), affd, 972 F.2d 1353 (Fed. Cir.)(table), cert. denied, 506 U.S. 999 (1992); Dawson Construction Co., Inc., VABCA 2322, 88-3 BCA ¶ 20,945; Santa Fe, Inc., VABCA 2168,87-3 BCA ¶ 20,104; Titan Pacific Construction Corp., ASBCA 24148, 87-1 BCA ¶ 19,626; Ramdel Construction Corp., ASBCA 27801, 85-3 BCA ¶ 18,502; Utley-James, Inc., GSBCA 5370, 85-1 BCA¶ 17,816, affd, 14 Cl. Ct. 804 (1988); Montgomery-Ross-Fisher, Inc., PSBCA 1033, 84-2 BCA ¶ 17,492; Santa Fe,Inc., VABCA 1943, 84-2 BCA ¶ 17,341.

1. GSA's Motion

According to GSA, sections 01311-1.3C and 01311-1.8F precluded early completion delay damages because they required Maron to prepare and to update a CPM schedule using April 20, 1995 as the contract completion date, and if Maron had anticipated finishing the contract work before that date, the CPM scheduler would have simply built in more float, which would have been available to absorb any GSA-caused delays. In other words, GSA says there was no such thing as early completion of this contract. Either Maron would finish work on April 20, 1995, or Maron's CPM scheduler would build in float time before that date which would absorb any GSA-caused delays until that date. Respondent's Motion at 7-10.

In support of its argument, GSA cites two cases for the proposition that the Government can limit or preclude its liability for delay damages. L.L. Hall Construction Co. v. United States, 379 F.2d 559 (Ct. Cl. 1966); A.S. McGaughan Co., PSBCA 2074, 90-1 BCA ¶ 22,411. Although we agree with GSA that the Government can draft a contract clause that limits or eliminates its liability for delay damages, as Hall and McGaughan make clear, such a clause must specifically and expressly exempt the Government from liability. Section 01311 does not specifically and expressly state that GSA will be exempt from liability for early completion delay damages. Neither does this section specifically and expressly state that Maron was precluded from completing the contract work early, even though a contractor is usually entitled to improve its progress and to finish before a contract's completion date. Montgomery-Ross-Fisher Inc., PSBCA 1033,84-2 BCA¶ 17,492; Eickhof Construction Co., ASBCA 20049, 77-1 BCA ¶ 12,398.

If GSA wanted to eliminate its liability for early completion delay damages by eliminating Maron's ability to finish early, it should have made this clear in the contract. Sections 01311-1.3C and 01311-1.8F told Maron that when it prepared its CPM schedule and updates to the schedule, it should make backward calculations for late finish dates by forcing the end date of the project to be April 20, 1995. These sections address the mechanics of constructing a CPM schedule and do not specifically and expressly tell Maron either that GSA would not be responsible for any claim for early completion delay damages before April 20, 1995, or that it was not possible for Maron to complete the project early.

We deny GSA's motion for summary relief, in part, because as a matter of law, section 01311 of the contract does not insulate GSA from liability for early completion delay damages.

2. Maron's Motion

According to Maron, section 01311 is unenforceable and, therefore, we should ignore that section when we review Maron's request for early completion delay damages. Maron argues that section 01311 is unenforceable because GSA did not obtain permission to deviate from a mandatory FAR clause in order to use that section, because GSA waived the application of section 01311, and because several GSA contract violations bar GSA from using section 01311.

a. FAR Deviation

Maron says that we should disregard section 01311 when we review its request for early completion delay damages because section 01311-1.8D is inconsistent with the contract's Changes clause (FAR 52.243-4). Due to the alleged inconsistency between the FAR clause and section 01311-1.8D, Maron says that GSA was required to obtain approval to deviate from the FAR in order to use section 01311-1.8D. Maron cites to several decisions that hold that a contract provision which is inconsistent with or which alters the substance of a mandatory FAR clause is a deviation from the FAR and is unenforceable unless the agency has been authorized to use the provision. Appellant's Renewed Motion at 28-37.

The contractor in Santa Fe, Inc., VABCA 1943, 84-2 BCA ¶ 17,341 made an argument similar to the argument that Maron makes here. Santa Fe asserted that the Government should have extended the time for contract completion due to Government- ordered changes to the contract work. The Government argued that it properly denied Santa Fe's request to extend the time for contract completion because the activities affected by the change orders had float available, and the contract provided that time extensions would be granted only if Santa Fe had used all of the float time available for the work involved. Santa Fe argued that this contract provision was inconsistent with general contract provisions, including the Changes clause.

The board in Santa Fe did not find that the contract's provision concerning the use of float was inconsistent with any of the contract's other provisions. In reaching this conclusion, the board explained that a Government-directed change has to affect completion of the overall project in order for a contractor to be entitled to an equitable time adjustment, and that the Government's actions did not adversely affect project completion if there was float time available. The board denied Santa Fe's appeal because, due to available float, the Government's actions did not affect the contract's completion date.

This case is similar to Santa Fe. The Changes clause here provided that if GSA made a change to the work required by the contract, and if that change caused an increase in the time required to perform contract work, GSA would make an equitable adjustment to the contract. The Changes clause does not require the Government to make an equitable time adjustment unless a Government-ordered change causes an increase in the time required to complete the contract. Preston-Brady Co., VABCA 1849, 86-2 BCA ¶ 18,860, affd, 865 F.2d 269 (Fed. Cir. 1988)(table). If Maron wanted an equitable time adjustment due to a GSA-ordered change, the contract's Equitable Adjustments clause, which supplements the Changes clause, required Maron to demonstrate whether and to what extent the change would delay the contract in its entirety. Consistent with the Changes clause and the Equitable Adjustments clause, section 01311-1.8D explains that if the impact of a GSA-ordered change is absorbed by the float available for a particular contract activity or path, then the contract's completion date is not affected and no equitable time adjustment is warranted. The Changes clause and section 01311-1.8D are complimentary, not inconsistent, and so there was no need for GSA to seek approval for a FAR deviation in order to use section 01311-1.8D.

We deny Maron's motion for summary relief, in part, because as a matter of law, GSA was not required to obtain approval for a FAR deviation in order to use section 01311-1.8D.

b. Waiver by GSA

Maron also says that we should disregard all of section 01311 when we review its request for early completion delay damages because GSA waived the application of that section when it delayed Maron's progress and made it impossible for Maron to prepare and to update a CPM schedule. Appellant's Renewed Motion at 37-52. There are numerous genuinely disputed material facts concerning this issue. For example, GSA puts forward facts which establish a genuine dispute as to whether GSA's actions made it impossible for Maron to prepare and to update a CPM schedule. In addition, GSA disputes that it led Maron to believe that Maron did not have to comply with the contract's requirement to provide a CPM schedule. Respondent's Statement of Genuine Issues ¶¶ 65, 105, 107. We deny this portion of Maron's motion for summary relief because there are genuinely disputed material facts.

c. GSA Contract Violations

Finally, Maron says that we should disregard section 01311-1.8D when we review its request for early completion delay damages because several GSA contract violations bar GSA from using that section. Specifically, Maron says that GSA breached all of the material scheduling provisions contained in the contract, unreasonably denied Maron access to the work, provided defective specifications and inadequate architect/engineer support, withheld superior knowledge from Maron, and made cardinal changes to the work required by the contract. Appellant's Renewed Motion at 52-75.

In this section of its motion, as in other sections, Maron says that GSA-directed changes delayed Maron's progress. Maron makes this same argument in its reply brief Appellant's Brief in Reply at 27-30. Before we address the merits of Maron's argument, we want to comment briefly about the concepts of change and delay in order to reduce the possibility of confusion during later proceedings in this appeal. If GSA made a change pursuant to the Changes clause and if the change caused an increase in the time that Maron needed to complete the work required by the contract, then GSA was required to make an equitable time adjustment. Reading the Changes clause as it is written, a change does not result in a delay. See 32 Fed. Reg. 16,269 (1967). If a delay occurred, the parties' rights and obligations are governed by the Suspension of Work clause or the Default clause, and not by the Changes clause. We realize that these distinctions are sometimes blurred and that some delays have been held to amount to changes and vice versa, but we ask the parties to characterize accurately whether they are discussing changes or delays as we continue with this appeal.

Turning to Maron's first point, that GSA breached all of the material scheduling provisions included in the contract, Maron has not persuaded us that it is entitled to judgment as a matter of law. Although Maron characterizes GSA's actions as a breach of contract, GSA's actions could also be fairly characterized as amounting to either changes or delays, instead of a breach. In addition, even if GSA's actions amounted to a breach, Maron has not cited us to any authority which establishes that an appropriate remedy would be to bar GSA from utilizing section 01311-1.8D in its defense of this appeal. Four of the five cases cited by Maron in support of barring GSA from using section 01311-1.8D concerned contract clauses which precluded contractors from recovering damages. These cases are unlike our case because section 01311-1.8D does not preclude Maron from recovering damages. The one case that concerned a clause similar to section 01311-1.8D is Montgomery-Ross-Fisher, Inc., PSBCA 1033, 84-2 BCA ¶ 17,492. Maron says that the board there allowed the contractor to recover for delay even though the delay did not exceed total float. To the contrary, the board in that case found that performance of critical path work was delayed and the critical path, by definition, had no float available. Allowing GSA to rely upon section 01311-1.8D in defending against Maron's claim does not conflict with any of the cases cited by Maron, and the cases cited by Maron do not establish that, as a matter of law, we should bar GSA from relying upon section 01311-1.8D when we consider Maron's request for early completion delay damages.

Maron's remaining points are that GSA unreasonably denied Maron access to the work, provided defective specifications and inadequate architect/engineer support, withheld superior knowledge from Maron, and made cardinal changes to the work required by the contract. As a result, says Maron, we should bar GSA from utilizing section 01311-1.8D in order to defend against Maron's claim for early completion delay damages. In essence, Maron's argument seems to be that GSA should not be permitted to use available float in order to absorb delay, as permitted by section 01311-1.8D, because GSA caused the delay. Maron never explains, however, why the use and application of section 01311-1.8D should depend upon who caused a delay. The provisions of section 01311-1.8D are no different from general legal principles that apply in the absence of such contract language. Regardless of section 01311-1.8D, if float is available for an activity, then that activity is not on the critical path and a delay to that activity will not increase the amount of time required to complete the contract, and float can absorb that delay. Maron has not established that, as a matter of law, we should depart from these general legal principles and bar GSA from relying upon section 01311-1.8D when we consider Maron's request for early completion delay damages.

We deny Maron's motion for summary relief, in part, because Maron has not established that it is entitled to relief as a matter of law, even if we were to assume that all of the facts are as stated by Maron.

B. Early Completion

In Interstate General Government Contractors v. West, 12 F.3d 1053 (Fed. Cir. 1993), the contractor wanted to establish that it was entitled to recover extended home office overhead, even though it finished within the time permitted by the contract. The contractor claimed that it would have completed the contract work earlier than it did, but for Government-caused delays. The court of appeals explained that in order for the contractor to succeed, it was required to establish that from the outset of the contract it 1) intended to complete the contract early, 2) had the capability to do so, and 3) actually would have completed early but for the Government's actions.

The Court decided that, as a matter of law, the contractor could not establish that it met any of the three requirements. There was no evidence that, when it prepared its bid, the contractor planned to finish early. There was no evidence to establish that, when it prepared its bid, the contractor formulated a feasible plan to finish early. As for the third requirement, the Court explained that there was no nexus between the Government's delay and the contractor's failure to finish early, and that post-facto, conclusory, self-serving statements were not sufficient to establish that the contractor fulfilled this requirement.

1. GSA's Motion

GSA relies upon several facts to show that Maron did not have any intent to complete work before April 20, 1995. Maron's vice-president notified GSA's auditor, in writing, that Maron's as-bid anticipated performance period was the full contract performance period. Maron bid a period of seventy-eight weeks for general cleaning and eighteen months for dumpster costs at the project site, which is approximately the entire performance period. Although Maron's vice-president had an idea that he would finish the contract early, he always had this idea when he submitted bids for contracts. Respondent's Statement of Uncontested Facts ¶¶ 5-8.

In response, Maron relies largely upon an affidavit submitted by its vice-president, Thomas Maron.² He says that Maron developed a conservative, successful bidding system. Using this system, Mr. Maron says that Maron carried some costs for some activities until April 20, 1995, which accounts for the information that Maron provided to GSA's auditor and for the bid period for general cleaning and dumpster costs. Mr. Maron also says that Maron planned to complete the project early, and that Maron's plan for completing projects early usually works well. Exhibit M-255. Maron's evidence is sufficient to show that there is a genuine dispute concerning whether Maron intended to complete the project earlier than April 20, 1995, and this is a material fact.

GSA also contends that Maron did not have the capability to complete work before April 20, 1995, because the original schedule submitted by Maron, which contained an early completion date, was deficient in many ways and so does not show that Maron was capable of completing the contract before April 20, 1995. GSA notes that on July 26, 1994, Maron submitted a schedule showing a contract completion date of April 20, 1995, which GSA takes as a concession by Maron that it could not complete the work early. Respondent's Statement of Uncontested Facts ¶¶ 13-14.

The evidence that GSA relies upon to support its contention that Maron's original schedule was deficient is a two-page memorandum that states that certain issues concerning the schedule “ha[d] been addressed” and then lists several items which appear to have been problems with the schedule. The memorandum identifies the problems only in very general terms and does not explain either how serious the problems were or whether any or all of those problems reflected upon Maron's capability to finish before April 20, 1995. Exhibit 133. As for the fact that Maron's July 26, 1994 schedule shows a completion date of April 20, 1995, Mr. Maron explains in his affidavit that Maron submitted this schedule only after GSA said that it would not approve a schedule that contained any other finish date. Exhibit M-255. The evidence is sufficient to show that there is a genuine dispute concerning whether Maron was capable of completing the project earlier than April 20, 1995, and this is a material fact.

GSA's motion is denied, in part, because there are material facts in dispute.

2. Maron's Motion

Maron says that it had the intent and the capability to perform the work early and would have done so, but for GSA's delays. Maron's evidence, although sufficient to avoid summary relief in favor of GSA, is not sufficient to show that Maron is entitled to summary relief. The most persuasive piece of evidence offered by Maron to support its position is the original schedule that it submitted to GSA, but that schedule was developed months after contract award and so does not shed any light upon what Maron intended from the outset of the contract. Exhibit M-14. In addition, the two-page memorandum, discussed above, that GSA relied upon in order to establish that Maron lacked the capability to finish early is sufficient to create a genuine dispute as to whether the original schedule was defective. Exhibit 133. Mr. Maron's affidavit, although sufficient to avoid summary relief in favor of GSA, does not establish that Maron intended to finish early, was capable of finishing early, or would have finished early but for GSA's delays. Maron does not explain precisely when delays occurred, what work was delayed for what length of time due to those delays, or whether that work affected the critical path. Exhibit M-255. Maron's motion is denied, in part, because there are material facts in dispute.

II. Eichleay Damages

When a contractor prepares a bid for a Government construction project, the contractor usually assumes that if it performs the contract successfully, the contract price will be sufficient to allow the contractor to recover its direct costs and some portion of its home office overhead costs. When the Government suspends or delays a contractor's work, the contractor's expenditures for direct costs are reduced or perhaps stopped altogether. The contractor's home office overhead costs, however, continue to accrue even though work on the contract has slowed or stopped. Courts and boards have developed a method for determining whether and to what extent a contractor can recover extended or unabsorbed home office overhead costs when the Government suspends or delays the contractor's work. This method is referred to as the Eichleay method, referring to the decision in Eichleay Corp., ASBCA 5183, 60-2 BCA ¶ 2688, affd on reconsideration, 61-1 BCA ¶ 2894.

Maron's claim includes a request for Eichleay damages for both Maron and Kendland. Both parties move for summary relief concerning this portion of the claim.

In order to prove entitlement to Eichleay damages, Maron must establish 1) that GSA caused a delay or suspension of an uncertain duration, 2) that GSA required Maron to remain ready to perform during the period of delay or suspension, and 3) that Maron was unable to take on other work due to the delay or suspension. Maron can establish a prima facie case that it is entitled to Eichleay damages if it proves the first two elements. If Maron does so, then the burden shifts to GSA to produce evidence or argument showing that Maron did not suffer any adverse economic impact due to GSA's actions because Maron could have taken on other work during the delay period. If GSA makes such a showing, Maron must then prove the third element, that the delay or suspension prevented it from taking on other work. Mech-Con Corp. v. West, 61 F.3d 883 (Fed. Cir. 1995).

In Satellite Electric Co. v. Dalton, 105 F.3d 1418 (Fed. Cir. 1997), the court of appeals decided that the agency made a satisfactory showing that the contractor could have taken on other work during a delay period by establishing that Satellite Electric submitted bids on forty-nine projects during two periods of suspension that lasted a total of 228 days. The court of appeals explained that it was reasonable to infer that Satellite Electric had the capacity to perform whatever work it could have obtained as the result of its bidding efforts, and that the agency's evidence was sufficient to show that Satellite Electric did not suffer any adverse economic impact due to the suspension. The court also explained that it was irrelevant whether the contractor actually took on any of the work for which it bid. Satellite Electric did not prove that it was unable to take on other work due to the agency's delay. Although Satellite Electric's bonding company apparently imposed some limitations, the court found that this was not the result of the agency's delay. The court held that Satellite Electric was not entitled to Eichleay damages.

GSA argues that even if Maron can make a prima facie case that it is entitled to Eichleay damages, it cannot prove that any GSA delay caused either Maron or Kendland to be unable to take on other work.³ Respondent's Motion at 10-16. GSA points out that Maron and Kendland bid for significant amounts of work from December 1993, when Maron began work, until mid-October 1995, when Maron substantially completed work. During this time, Maron submitted bids for approximately 240 projects worth nearly $125 million, and Kendland submitted bids for approximately 105 projects. It is reasonable to infer that Maron and Kendland would not have submitted any of these bids unless they were prepared and able to perform the work that would have been required by the contracts. This conclusion is supported by the fact that Maron's bonding capacity did not decrease from January 1993 through December 1995, and Kendland's bonding capacity increased between 1993 and 1994. Although Kendland's bonding capacity was restricted in 1995, this was due to financial losses sustained by a related business activity. GSA's showing is sufficient to require Maron to make a showing that it and Kendland were unable to take on other work due to the delay that it contends was caused by GSA.⁴

In its brief, Maron does not set out any facts to show that either it or Kendland was unable to take on other work due to GSA-caused delays. Instead, Maron devotes its brief to criticizing the third element of the Eichleay test, calling it “irrational,” “a unique anomaly,” “lacking in rationality,” “a basic violation of due process,” and “a plain error of law.” Appellant's Renewed Motion at 102-03. We reject Maron's criticisms for two reasons. First, it is not irrational, anomalous, etc. to require a litigant requesting damages to establish that it was, in fact, damaged by the conduct of the opposing party. Second, and more important, our court of appeals requires contractors seeking Eichleay damages to prove the third element of the Eichleay test where, as here, the Government makes a satisfactory showing that the contractor could have taken on other work during the delay period.

In its statement of genuine issues, Maron cites us to some of its interrogatory responses. We reviewed those responses to see if they show that there is a genuine dispute as to whether either Maron or Kendland was able to take on other work due to GSA-caused delays. We read Maron's responses in a light most favorable to Maron and we drew all reasonable inferences from the evidence contained in those responses in Maron's favor in order to determine whether a genuine dispute exists as to any material fact.

Maron has done just enough to avoid GSA's motion for summary relief, because some of Maron's interrogatory responses set out facts to show that there is a genuine dispute as to whether Maron was able to take on other work. For example, in response to interrogatory 20, Maron says that it was prevented from bidding on other contracts due to the “special administrative and operational burdens” caused by GSA's delay. Maron also says that it was “barred” from bidding on new projects because GSA's delays consumed “administrative and contract management resources” and “forced Maron's key personnel to spend an inordinate amount of time managing this Project.” Maron says that it did not have time to identify bidding opportunities. Exhibit M-254 at 13-14. Similarly, in response to interrogatory 33, Maron says that Kendland was prevented from bidding on other contracts due to the “special administrative and operational burdens” caused by GSA's delay. Exhibit M-254 at 23-24. Finally, also in response to interrogatory 20, Maron says that GSA's delays caused Maron's bonding company to refuse to provide Maron with a bond for a $15 million project in September 1994. Exhibit M-254 at 13.

Both motions for summary relief are denied, in part, because there is a genuine dispute of material fact concerning whether Maron and Kendland were able to take on additional work.

III. Second Floor Tie-In Drawings

Maron explained in its claim that the mechanical, electrical, and plumbing work that it was required to perform on the first and third floors of the Pastore Building had to be tied together by running the work through an empty second floor. Maron asserted that GSA delayed Maron's progress by waiting until March 7, 1995, to provide Maron with second floor tie-in drawings. Exhibit 217 at 26-29.

Maron moves for summary relief concerning the second-floor tie-in drawings. Maron says that it needed those drawings in order to fill in the gaps between the first and third floor mechanical, electrical, and plumbing systems.⁵ Appellant's Renewed Motion at 93-99. Maron's factual support for the proposition that it needed tie-in drawings consists of statements made by Maron during the course of performance, an opinion offered by a consulting firm that participated in the Pastore project, and an opinion offered by Maron's vice-president. Exhibits 160, 162, 164, 168, M-255.

In response to Maron's motion, GSA says that the contract required Maron to perform tie-in work and that Maron did not need tie-in drawings to perform the work. Respondent's Opposition at 25-26. GSA's factual support of its position is found in its interrogatory responses. GSA says that the contract required Maron to employ someone to coordinate all mechanical and electrical work, and that Maron should have been able to perform the tie-in work by using drawings that had previously been made available. GSA says that the tie-in drawings that GSA gave to Maron on March 7, 1995, duplicated significant portions of drawings that were already available to Maron and were not necessary. Exhibit M-253 at 13. GSA's evidence is sufficient to show that there is a genuine dispute as to whether Maron needed second floor tie-in drawings, and this is a material fact.

We deny Maron's motion for summary relief, in part, because there are material facts in dispute.

Decision

Both parties' motions for summary relief are DENIED.

MARTHA H. DEGRAFF
Board Judge

We concur:

ROBERT W. PARKER
Board Judge

EDWIN B. NEILL
Board Judge

FOOTNOTES

1 These facts are not in dispute. All of the exhibits cited in the findings of fact and in the discussion are contained in the appeal file submitted by the parties.

2 Maron also relies upon documents that were developed and events that occurred months after GSA awarded the contract. As the court of appeals made clear in Interstate General, relevant evidence is that which existed at the outset of the contract.

3 In its motion, GSA does not concede that Maron can make a prima facie case that it is entitled to Eichleay damages.

4 In order to avoid summary relief in favor of GSA, Maron must merely “show” that it was unable to take on other work. Rule 8(g)(4). In order to succeed on the merits, Maron must prove by a preponderance of the evidence that it was unable to take on other work.

5 In this section of its brief, Maron also alleges that GSA breached its duty to cooperate with Maron by not providing adequate architect/engineer services. Maron's brief does not state any specific facts to support this allegation. If Maron meant for this part of its brief to set out an argument for summary relief separate from the second floor tie-in drawings argument, we deny this portion of Maron's motion based upon the lack of supporting uncontested facts.

98-1 BCA P 29685 (G.S.B.C.A.), GSBCA No. 13625, 1998

United States Claims Court.

No. 90-42C.

GULF CONTRACTING, INC. and Hughes Masonry Co., Inc., Plaintiffs, v. The UNITED STATES, Defendant.

June 28, 1991.

David B. Ratterman, Louisville, Ky., for plaintiffs. Stephen E. Smith and Gerald L. Stovall, Louisville, Ky., and George E. Dun­can, Jr., Atlanta, Ga., of counsel.

Joan M. Bernott, Washington, D.C., with whom was Asst. Atty. Gen., Stuart M. Ger-­son, for defendant. Anne W. Westbrook, U.S. Army Corps of Engineers, Savannah, Ga., of counsel.

OPINION

MARGOLIS, Judge.

This government contracts case is before the court on cross-motions for summary judgment. Plaintiff contractor entered into a contract to construct buildings for the defendant. The contractor and its sub­contractor claim compensation for delay, return of liquidated damages, and reim­bursement of interest expenses on borrow­ings and expert consultant fees, allegedly caused by a change to the contract. The Armed Services Board of Contract Appeals (“ASBCA”) in its first opinion agreed that there was a constructive change to the contract. In its second opinion, the ASBCA awarded direct costs resulting from the change, but denied the contrac­tor’s other claims for relief. In its third decision, the ASBCA denied the contrac­tor’s motion for reconsideration. The plaintiffs appeal the adverse decisions of the ASBCA under the Wunderlich Act, claiming that portions of the ASBCA’s deci­sions should be reversed as arbitrary and capricious, not supported by substantial ev­idence, and based on errors of law. The defendant asserts that the ASBCA’s deci­sions are supported by substantial evidence in the record and should not be disturbed. After careful review of the record, and after hearing oral argument, this court up­holds the ASBCA’s decisions, and accord­ingly denies the plaintiffs' motion for sum­mary judgment and grants the defendant’s motion for summary judgment.

FACTS

Plaintiff Gulf Contracting Inc. (“Gulf”) was awarded a $6,729,000 contract on May 19, 1975 for the construction of an enlisted men’s barracks complex at Fort Gordon, Georgia (“the project”). Plaintiff Hughes Masonry Company, Inc. (“Hughes”) was Gulf’s masonry subcontractor for the project. The U.S. Army Corps of Engi­neers, Savannah District (“Corps”) adminis­tered the project under Contract No. DACA21-75-C-0115.

The contract was scheduled to be per­formed between June 16, 1975 and Novem­ber 7,1976. The scheduled completion date was extended 195 days through contract modifications to May 21, 1977. Gulf fin­ished the project 147 days beyond the ex­tended contract completion date, complet­ing the gymnasium on October 15, 1977. The government assessed and withheld $29,106 in liquidated damages as a reuslt of this delay in completion.

Gulf submitted a critical path network that sequenced the construction work for government approval. The approved schedule was intended to be used by Gulf to plan, organize and direct the work. Progress on the schedule, as updated dur­ing the project, was used to determine Gulf’s progress payments. Gulf and the government updated the critical path schedule each month between August 1975 and May 1977. A final update was pre­pared on October 12, 1977, when the project was nearly complete. Major changes to the approved network during the course of the project, particularly those expected to affect contract completion dates, required written notification of the contracting officer.

Gulf’s work on the barracks complex in­volved construction of seven barracks buildings and seven related support build­ings including a gymnasium. As its overall scheme of sequencing work on the project, Gulf planned to prosecute work on the bar­racks as a group. Work on the support buildings was to take place concurrently and be prosecuted as a separate group. The original critical path schedule identi­fied the support buildings as the critical path to completion of the project. The critical path remained in the support build­ing construction throughout the project with the exception of a shift to barracks in December 1976 associated with a late start of prefabricated shower units.

In erecting the barracks, Gulf elected to lay large planks of pre-cast, pre-stressed concrete, called Quad-Ts, to form the sec­ond and third level barracks floors. To anchor the Quad-Ts, Gulf had to weld the Quad-T stems to imbeds in the exterior and interior masonry walls.

Gulf initially contemplated that it would weld the Quad-Ts to both the exterior and interior walls prior to pouring the concrete topping that served to level the floor sur­face. The Corps instead directed Gulf to weld the exterior ends, pour topping in the bedroom areas to load the Quad-Ts, allow the topping to cure, and then weld the remaining interior ends and pour topping on the corridor floor areas. This meant that Gulf had to weld and pour topping at two separate times, necessitating the recall of welding, masonry, and concrete work crews multiple times to the same work areas which disrupted its planned produc­tion sequence. Gulf needed to erect tempo­rary forms to contain the concrete topping when it was poured in these separate ar­eas, adding about 80 lineal feet of forming to the requirements for each “pod” of the barracks. Certain procedures became more difficult to perform. For example, the interior end welding had to be per­formed from the floor beneath rather than from above as originally contemplated.

In its first opinion in this case, the ASBCA considered the Quad-T issue and stated in its findings of fact that the government’s Quad-T directive “caused some delays with regard to [Gulf’s] work as well as the work performed by its ma­sonry and erector subcontractors.” Gulf Contracting, Inc., ASBCA Nos. 27221 et al., 84-2 B.C.A. (CCH) II 17,472, at 87,065 (1984). The ASBCA found “that the Government’s oral directive was the equiv­alent of a change order, that it caused [Gulf] to perform in a manner different than it had planned, and that to the extent [Gulf] incurred greater expense as a result, it is entitled to an equitable adjustment under the contract’s ‘Changes’ clause.” Id. at 87,066.

The Board remanded the Quad-T matter to the contracting officer “for further ne­gotiation on the question of quantum.” Id. at 87,068. Negotiations failed to resolve the question, and the parties returned to the ASBCA for resolution of the quantum issue. In its second opinion, the ASBCA acknowledged that the Quad-T directive resulted in additional direct costs and awarded $24,362 to Gulf for these costs. However, the ASBCA concluded that Gulf was not entitled to compensation for delay to the project, loss of efficiency, refund of the assessed liquidated damages, interest expense on borrowings, or expert consul­tant fees for a report prepared by Vinson & Associates. Gulf Contracting, Inc., ASBCA Nos. 30195 et al., 89-2 B.C.A. (CCH) 1121,812 (1989). On Gulf’s motion for reconsideration, the ASBCA affirmed its earlier decision denying Gulf compensa­tion for items other than direct costs. Gulf Contracting, Inc., ASBCA Nos. 30195 et al., 90-1 B.C.A. (CCH) 1122,393 (1989).

STANDARD OF REVIEW

The ASBCA’s adverse decisions were ap­pealed by Gulf and Hughes to this court, invoking jurisdiction under 28 U.S.C. § 1491(a)(1), and review under the Wunder­lich Act, 41 U.S.C. §§ 321, 322. In a Wun­derlich Act case, this court “may not take new evidence or redetermine the facts, and limits its review to the record developed before the agency.” Titan Pacific Con­struction Corp. v. United States, 17 Cl.Ct. 630, 632 (1989), aff'd mem., 899 F.2d 1227 (Fed.Cir.1990). This court upholds a find­ing of fact by an agency board of contract appeals unless it is “fraudulent or capri­cious or arbitrary or so grossly erroneous as necessarily to imply bad faith, or is not supported by substantial evidence.” 41 U.S.C. § 321. Senior Judge Harkins in Ti­tan Pacific Construction summarized the standard of review as follows:

The scope of judicial review is narrow, and is limited to whether there was sub­stantial evidence—such evidence as might convince a reasonable man—to support the conclusion reached by the agency officials.

The entire administrative record is be­fore the court, and the plaintiff has the burden of establishing the fact that the record does not support the Board’s find­ing. It is not the court’s function to cure plaintiff’s deficiency “by an independent excursion along the administrative trail.”

Substantial evidence is evidence which could convince an unprejudiced mind of the truth of the facts to which the evi­dence is directed. Evidence may be sub­stantial even if it is the sole evidence in a case, e.g., expert testimony. The amount of testimony, however, is not necessarily determinative, e.g., if the only evidence is a series of isolated statements in the record.

Reasonable inferences fairly drawn from the evidence are for the administra­tive tribunal. Where two equally reason­able but contrary inferences might be drawn from the record, and each could be sustained as supported by substantial evidence, the one adopted by the Board should be sustained. Moreover, where conflicting testimony is in the record, the Board’s preference will, generally, not be disturbed unless the court can conclude that the findings are not supported by some evidence which qualitatively and, in appropriate circumstances, quantitative­ly, can be deemed substantial evidence when the record is viewed as a whole.

In limited circumstances the court will decide an issue of fact not decided by the Board, or contrary to the finding made by the Board. Such action is not con­sidered unless the court first concludes that there is no substantial evidence to support the Board’s findings. The Board’s findings may be supplemented when evidence on the fact question is undisputed, and a contrary finding may be made when the overwhelming weight of the evidence points to one conclusion of fact.

The substantial evidence rule requires consideration of both opposing evidence and evidence that supports the Board’s findings. The fact that there is evidence, considered of and by itself, to support the administrative decision is not suffi­cient where there is opposing evidence so substantial in character as to detract from its weight and render it less than substantial on the record as a whole. Where, however, the opposing evidence is not overwhelmingly in favor of the opposing view, the view of the facts adopted by the Board, if otherwise prop­er, will be sustained. If there is ade­quate and substantial evidence to sup­port either of two contrary findings of fact, the one adopted by the Board is binding on the court, whatever its own evaluation of the evidence might be.

Titan Pacific Construction, 17 Cl.Ct. at 634-35 (citing & quoting Koppers Co. v. United States, 405 F.2d 554, 556-59, 186 Ct.Cl. 142, 148-51 (1968); other citations omitted).

Conclusions of law are not binding on this court. 41 U.S.C. § 322. However, a board’s interpretation of a contract is entitled to careful consideration and accord­ed great respect. See, e.g., Fortec Con­structors v. United States, 760 F.2d 1288, 1291 (Fed.Cir.1985); Raytheon Co. v. Unit­ed States, 2 Cl.Ct. 763, 767 (1983), aff'd, 730 F.2d 1470 (Fed.Cir.1984).

DISCUSSION

In this court, Gulf and Hughes claim that the ASBCA’s decisions denying compensa­tion for delay, relief from liquidated dam­ages, and allowance for interest expenses on borrowings and for expert consultant fees, allegedly resulting from the construc­tive change to the contract, should be re­versed as arbitrary and capricious, not sup­ported by substantial evidence, and based on errors of law.

Compensable Delay

The ASBCA found that delay of completion of the project was not caused by the Quad-T directive, but rather by factors within Gulf’s purview. Rejecting the analysis of Gulf’s expert witness, the ASBCA relied upon the critical path sched­ule used during the project and upon the government’s expert witness, Ockman in reaching this finding. The Board conclud­ed that Gulf “failed to prove that the addi­tional time required for the welding change exceeded the ‘float or slack along the chan­nels involved’ so that a compensable time extension is due.” Under the Wunderlich Act standard of review, the ASBCA’s re­liance on the critical path schedule used during the project and the government ex­pert’s analysis had substantial basis in fact. Consequently, this court upholds the ASBCA findings with regard to compensa­ble delay.

Expert Witnesses

As the trier of fact, the ASBCA was able to judge the demeanor and credibility of the expert witnesses and to weigh their testimony. The ASBCA rejected the analy­sis of Gulf’s expert witness, Vinson, upon which Gulf relied, as “totally unreliable” and “inherently biased.”1 Instead, the Board chose to believe the government’s expert, Ockman, who performed a similar analysis with quite different conclusions. Vinson’s report, according to the Board, lacked clarity and jumped from one unsup­ported conclusion to another. The ASBCA’s rejection of the Vinson analysis also stemmed from its determination that Vinson’s experience was deficient, particu­larly due to his lack of formal engineering college courses.

“This reviewing court must accept the Board’s evaluation of conflicting conclu­sions of expert witnesses, unless the testi­mony is inherently improbable or discred­ited by uncontrovertible evidence.” Mait­land Bros. Co. v. United States, 20 Cl.Ct. 53, 64 (1990). This court upholds the ASBCA’s finding that the analysis of Gulf’s expert witness, Vinson, was unrelia­ble.

Several factors impair the credibility of Vinson’s analysis. Most importantly, the Vinson report is unpersuasive in establish­ing the quantum of delay and added costs arising from this contract change. In addi­tion, although Vinson’s analysis purports to separate government-responsible delays from contractor-responsible delays, it fails to assign values to contractor-responsible delays. In particular, Vinson’s treatment of contractor-responsible disruptions to barracks work is not persuasively ad­dressed by either his testimony or the Vin­son & Associates report.

Thus, this court finds substantial evi­dence in the record to support the ASBCA’s conclusion that the Vinson analysis is unre­liable. This conclusion, as well as deriva­tive conclusions, will not be disturbed.

Critical Path Schedule

There is substantial evidence in the record for the ASBCA’s finding that the Quad-T directive did not affect the critical path of the project and consequently did not cause delay in the completion of the project.2 It is clear that the Quad-T di­rective disrupted the planned work se­quence. However, the plaintiffs fail to demonstrate a causal link between this dis­ruption and the extension of the contract completion date. The testimony estab­lished that the barracks work items were not, but for one brief exception, formally on the critical path to project completion. The last building completed was the gym­nasium, not a barracks building affected by the Quad-T directive.

The plaintiffs assert that the ASBCA erred in relying on an “inaccurate” critical path schedule to determine activity rela­tionships and durations. However, the crit­ical path schedule is the most logical evi­dence to consult in evaluating Gulf's progress and plan for the project. The critical path schedule was created and ap­proved in contemplation of contract per­formance, and was updated regularly throughout the relevant performance peri­od. The government and contractor con­sulted the critical path schedule in assess­ing Gulf’s progress and providing progress payments. In addition, both Vinson and Ockman used the critical path schedule as the point of departure for their respective analyses. By contrast, “[a]nalyses made after project completion ... that make ad­justments to attain new and revised projected scheduling depend on theoretical contingencies. They are of limited value.” Titan Pacific Construction, 17 Cl.Ct. at 637 (emphasis in original).

Estimate of Barracks Delay

The ASBCA found that the original claim estimate of 44 days of delay associated with added work and disruption caused by the directive was a fair evaluation of the additional time to complete the Quad-T change (8 additional days to complete each “B” barracks and 4 additional days to com­plete each “A” barracks). The ASBCA adopted the Ockman estimate of 70 days, even more generous than Gulf’s initial esti­mate (10 days for each barracks). The Board rejected Vinson’s estimate of 32 days per barracks, after considering Vin­son’s testimony and Ockman’s testimony. Relying on the Ockman analysis of critical path progression, the ASBCA found that the delay caused by added work associated with the Quad-T directive did not affect the project completion date.

This court has carefully “canvassed the entire ASBCA record.” Maitland Bros., 20 Cl.Ct. at 60. Viewed as a whole, the record supports the ASBCA’s factual find­ings that delay to the overall project was caused not by the Quad-T directive, but by Gulf’s assignment of priorities in complet­ing the work, conflicts and interference between Gulf and Hughes, and deficiencies in Hughes’ quality control and workman­ship. “A contractor typically may not re­cover if government-caused delay is concur­rent with additional delay not caused by the Government, such as weather or con­tractor delay.” Wilner Construction Co. v. United States, 23 Cl.Ct. 241, 245 (1991).

The general rule is that ‘[wjhere both parties contribute to the delay neither can recover damage[s], unless there is in the proof a clear apportionment of the delay and expense attributable to each party.’ Courts will deny recovery where the delays are concurrent and the con­tractor has not established its delay apart from that attributable to the government.

Id. (quoting William F. Klingensmith, Inc. v. United States, 731 F.2d 805, 809 (Fed.Cir.1984); other citations omitted).3

Liquidated Damages

This court agrees with the ASBCA that the critical path schedule, as a doc­ument required by the contract, represent­ed a fair reflection of actual work accom­plished. Neither the critical path schedule nor the government’s analysis reasonably relied on by the Board showed that bar­racks work controlled completion of the project. Gulf and Hughes fail to present overwhelming evidence to the contrary. Consequently, this court agrees with the ASBCA that the government’s assessment of liquidated damages was appropriate.

Interest on Borrowings

Armed Services Procurement Regu­lation (ASPR) § 15-205.17 provided that “interest on borrowings ... costs of financ­ing and refinancing operations ... are un­allowable.” The ASBCA concluded that the provision disallows the plaintiffs’ claim for interest on borrowings, and cited as support earlier ASBCA decisions which ap­plied ASPR § 15-205.17 to deny recovery of interest on borrowings. Gulf and Hughes claim that the ASBCA erred as a matter of law in concluding that the con­tractor was not entitled to be reimbursed for interest costs on incurred borrowings required to finance extra labor and equip­ment necessitated by the Quad-T modifica­tion. The plaintiffs contend that the ASBCA’s interpretation of ASPR § 15-­205.17 is strained, that the unallowable costs that the drafters meant to avoid were general business costs incurred in attract­ing capital investment to fund a business venture, and that the ASBCA’s interpreta­tion would contradict the spirit of ASPR and the Fifth Amendment of the United States Constitution. Gulf and Hughes also assert that earlier ASBCA decisions sup­porting the ASBCA’s denial were not re­viewed by the Claims Court, and therefore are not binding precedent in this court.

Although conclusions of law are not bind­ing on this court, 41 U.S.C. § 322, a board’s interpretation of a contract is entitled to careful consideration and accorded great respect. See Fortec Constructors, 760 F.2d at 1291; Raytheon, 2 Cl.Ct. at 767. This court has reviewed the ASBCA deci­sions on this subject, and concludes that ASPR § 15-205.17 applies in our case and precludes the recovery of interest on bor­rowings by Gulf and Hughes. See E.L. David Construction Co., Inc., ASBCA Nos. 29225 et al., 89-3 B.C.A. (CCH) ¶ 22,-140, at 111,436 (1989) (citing International Equipment Services, Inc., ASBCA Nos. 21104 et al., 83-2 B.C.A. (CCH) ¶ 16,675, at 82,925 (1983)); C.N. Flagg & Co., ASBCA Nos. 26444 et al., 84-1 B.C.A. (CCH) ¶ 17,-120, at 85,267 (1983) (citing Creative Elec­tric, Inc., ASBCA No. 26368, 83-1 B.C.A. (CCH) ¶ 16,363, at 81,324 (1983); Systems & Computer Information, Inc., ASBCA No. 18458, 78-1 B.C.A. (CCH) ¶ 12,946, at 63,122-28 (1977); R.L. Spencer Construc­tion Co., Inc., ASBCA No. 18450, 75-2 B.C.A. (CCH) ¶ 11,604, at 55,424 (1975)).

However, Gulf and Hughes also ar­gue that Claims Court precedent allows a contractor to recover interest on borrow­ings as a direct cost made necessary by a government-ordered change.4 See, e.g., Bell v. United States, 186 Ct.Cl. 189, 205-­06, 404 F.2d 975, 984 (1968). Under this precedent, as stated by the United States Court of Appeals for the Federal Circuit, “[t]he changed work either must be traced to a specific loan or a necessity for in­creased borrowing must be shown to have been required by extra work or delay caused by the government.” Gevyn Con­struction Corp. v. United States, 827 F.2d 752, 754 (Fed.Cir.1987) (citing Dravo Corp. v. United States, 219 Ct.Cl. 416, 427, 594 F.2d 842, 847 (1979); Singer Company v. United States, 215 Ct.Cl. 281, 321-22, 568 F.2d 695, 718-19 (1977)). The contractor must prove the linkage between the changed work and the borrowings. Dravo, 219 Ct.Cl. at 428, 594 F.2d at 848 (citing Singer, 215 Ct.Cl. at 323-25, 568 F.2d at 719-20). Gulf and Hughes fail to meet this burden. Affidavits attached to their mo­tion for summary judgment do not tie spe­cific loans to changed work or delay. While the affidavit of Robert L. Ward, Jr., who was comptroller of Hughes during contract performance, does show borrow­ing around the time of the Quad-T di­rective, it does not prove that there was a necessity for this borrowing caused by the government-ordered change. “A mere showing of a history of business borrow­ings and a course of dealings with various banks during the time frame at issue is insufficient to prove a claim for interest.” Id. at 429, 594 F.2d at 849 (citing Singer, 215 Ct.Cl. at 321-23, 568 F.2d at 718-19). Consequently, Gulf and Hughes are unable to recover interest on borrowings, and the ASBCA’s determination is upheld.5

Expert Consultant Fees for Report

Gulf claims that the ASBCA erred as a matter of law in denying $87,663.85 for professional consulting fees associated with Gulf's estimate of costs for the Quad-­T modification. Gulf asserts that under provisions of the contract and ASPR § 15-­205.31(a), whenever a contract change re­quires modification and updating of net­work diagrams and machine printouts for settlement of price or time adjustments by the government, the costs of professional and consultant services used in preparing the required modifications and updates are recoverable by the contractor. Gulf alleg­es that the government refused to negoti­ate unless the contractors determined the impact of the constructive change by up­dating the critical path network diagram and printouts. Without in-house resources to complete the task, Gulf hired Vinson & Associates to perform this work. Gulf maintains that the claimed amount of $87,-­663.85 does not include costs incurred by Gulf in preparation of its claim or for trial. Although the ASBCA found that the costs incurred by Gulf were claim preparation costs, Gulf argues in this court that there was no basis for the ASBCA’s conclusion.

Contrary to Gulf’s assertions, the conclu­sion that the fees are not recoverable is amply supported by the ASBCA’s findings of fact. The Board stated that it issued an order “requiring Gulf to furnish Govern­ment counsel and the Board with a detailed statement, showing ‘(a) all of the items and figures which appellant intends to prove from books of account or other records; and (b) all the items and figures which appellant intends to prove by other means.’ ” The Board found that “Gulf chose to submit the Vinson report to satis­fy the Board’s order ...” and that “ Vinson testified as Gulf’s expert, and relied almost exclusively on his report____” Gulf and Hughes do not effectively dispute these findings. ASPR § 15-205.31(d) pro­vided that “[cjosts of ... consulting servic­es ... incurred in connection with ... the prosecution of claims against the govern­ment, are unallowable.”

Gulf seeks to recover claim preparation costs by asserting that they were incident to contract performance. Singer, 215 Ct.­Cl. at 327-28, 568 F.2d at 721. Singer stands for the proposition that administra­tive costs of this nature are related to contract performance only if they benefit contract production or contract administra­tion related to ongoing productive work. Id. These expenses were incurred entirely after completion of construction; they bear no relation to production or administration of an ongoing contract and must be disal­lowed. See id.; Wilner, 23 Cl.Ct. at 261.

Earlier ASBCA decisions are in accord. See, e.g., G.A. Karnavas Painting Co., ASBCA No. 22281, 78-2 B.C.A. (CCH) ¶ 13,-­312, at 65,110 (1978); G.W. Galloway Co., ASBCA Nos. 17436 et al., 77-2 B.C.A. (CCH) ¶ 12,640, at 61,295 (1977). Conse­quently, this court upholds the ASBCA’s determination that the $87,663.85 paid to Vinson is not recoverable by Gulf.

CONCLUSION

The ASBCA’s findings of fact are sup­ported by substantial evidence in the record, and the ASBCA’s conclusions of law are correct. This court upholds the decisions of the ASBCA. The plaintiffs’ motion for summary judgment is denied, and the defendant’s motion for summary judgment is granted. The plaintiffs’ com­plaint is dismissed. The clerk is directed to enter judgment accordingly. No costs.

1

. As the trier of fact, the ASBCA is not bound by expert testimony. See Southwest Marine, Inc. San Pedro Division, ASBCA No. 28196, 86-2 B.C.A. (CCH) ¶ 19,005, at 95,980 (1986); U.S. Engineering Co., ASBCA No. 28835, 84-2 B.C.A. (CCH) ¶ 17,305, at 86,241 (1984).

2

. The project can be represented by a network of discrete paths that sequence interdependent tasks or milestones leading to project comple­tion. The critical path, the longest path at any point in time, determines the project’s expected completion date.

3

. Gulf cites J.D. Hedin Construction Co. v. United States, 171 Ct.Cl. 70, 347 F.2d 235 (1965), for the proposition that the government must affirma­tively establish concurrent delay on the part of the plaintiff. Hedin is distinguishable because in that case, "[t]he grant of an extension of time by the contracting officer carrie[d] with it the administrative determination (admission) that the delays resulted through no fault of the con­tractor.” Id. at 83, 347 F.2d at 245. Here, there was no grant of overall contract delay that could be construed as an admission by the government of any delay associated with the Quad-T directive.

4

. These cases do not involve a provision such as ASPR § 15-205.17 precluding recovery of inter­est on borrowings, and therefore are not bind­ing in our case. For purposes of this discus­sion, the court will assume that these cases are applicable to the recovery of interest on borrow­ings in our case.

5

. The plaintiffs also assert that prohibiting the award of interest on borrowings contradicts the spirit of the ASPR and the Fifth Amendment of the United States Constitution. However, the award of interest against the federal govern­ment is generally prohibited except where al­lowed by contract or statute. 28 U.S.C. § 2516(a). "‘[T]he immunity of the United States from liability for interest is not to be waived by policy arguments of this nature. Courts lack the power to award interest against the United States on the basis of what they think is or is not sound policy.’ ” Library of Congress v. Shaw, 478 U.S. 310, 321, 106 S.Ct. 2957, 2965, 92 L.Ed.2d 250 (1986) (quoting United States v. N. Y. Rayon Importing Co., 329 U.S. 654, 663, 67 S.Ct. 601, 606, 91 L.Ed. 577 (1947)).