United States Claims Court.

No. 547-82C.

FORTEC CONSTRUCTORS, Forest Builders, Inc., and Tectonics, Inc. of Florida v. UNITED STATES.

July 15, 1985.

David Mockbee, Jackson, Miss., for plain­tiff.

Joseph T. Casey, Jr., Washington, D.C., with whom was Acting Asst. Atty. Gen. Richard K. Willard, for defendant.

OPINION

YOCK, Judge.

This contract case arises out of a dispute over a contract for the construction of an aircraft fuel maintenance facility at Moody Air Force Base, Georgia. During the course of performance of the contract, six unilateral modifications were issued by the Government. As a result, the plaintiff con­tends that it is entitled to extensions of contract time for work performed beyond the contract requirements and to additional direct and extended overhead costs in­curred in performing this extra work, to­gether with remission of all liquidated dam­ages.

Facts

The plaintiff, Fortec Constructors, a Florida joint venture, is engaged in the business of Government construction, with annual Government contract volume, since 1970, ranging from $2 million to $35 mil­lion. On April 28, 1978, the plaintiff was awarded a contract by the Army Corps of Engineers (Corps), Savannah District, in the sum of $930,000, for the construction of an aircraft fuel maintenance facility at Moody Air Force Base, Georgia. The facil­ity contained a hangar, constructed on a heavy concrete slab with a drain pit located in the center, and concrete block bays con­structed on either side of the hangar. One of the bays was for offices and the other was for equipment and storage. The con­tract also called for site work involving construction of force mains, water lines, a concrete apron in front of the hangar, an asphalt roadway leading to the facility, and a water tank. The contract consisted of both drawings and specifications, including the Corps’ standard construction contract General Provisions dated January 3, 1977.

The notice to proceed was acknowledged by the contractor on June 16, 1978. Origi­nally, the contract duration was 360 days, with liquidated damages to be assessed in the amount of $135 per day thereafter. The contract completion date was extended, however, through July 6, 1979, at which time liquidated damages began to be as­sessed by the Corps against Fortec. The Government assessed liquidated damages against the plaintiff for the period July 7, 1979, through February 24, 1980, for a total of $31,455 (233 days at $135 per day).

During the course of performance of the contract, 12 modifications were issued by the Government. The plaintiff, however, refused to accept the Corps’ offered remu­neration for modifications P005, P006, P007, P009, P010, and P011. Accordingly, these modifications were issued unilateral­ly. As a result of these modifications, the plaintiff contends that it is entitled to: (1) extensions of contract time for work per­formed beyond the contract requirements; (2) additional direct and extended overhead costs incurred in performing this extra work; and (3) remission of all liquidated damages. Fortec also seeks additional compensation of $1,825.85 on behalf of its mechanical subcontractor, Rhodes Mechani­cal, for work beyond the contract require­ments relating to: (1) the Corps’ directive to move the hangar’s unit heaters or to install explosion-proof motors if the heaters were left in their initial locations, and (2) the Corps’ directive to install dielectric un­ions at an oil tank connection.

Thus, Fortec seeks payment of $32,-­408.48 for the additional work beyond the amounts already authorized by the Corps, including payment of extended overhead, and remission of $31,455 in liquidated dam­ages.

Discussion

A. Weather Modifications P005 and P007

Fortec, under Counts I and II of its Com­plaint, requests a time extension of 57 cal­endar days due to unusually severe weath­er encountered between October 1, 1978, and June 23,1979. This claim comes under contract General Provision 5(d)(1), which provides, in part, as follows:

The Contractor’s right to proceed shall not be terminated nor the Contractor charged with resulting damage if:

(1) The delay in the completion of the work arises from causes other than nor­mal weather beyond the control and with­out the fault or negligence of the Con­tractor, including but not restricted to, * * * unusually severe weather * * *.

Unusually severe weather is “ad­verse weather which at the time of year in which it occurred is unusual for the place in which it occurred.” Broome Construc­tion, Inc. v. United States, 203 Ct.Cl. 521, 531, 492 F.2d 829, 835 (1974). See also Cape Ann Granite Co. v. United States, 100 Ct.Cl. 53, 71-72 (1943) cert. denied 321 U.S. 790, 64 S.Ct. 785, 88 L.Ed. 1080 (1944). Proof of unusually severe weather is gen­erally accomplished by comparing previous years’ weather with the weather experi­enced by the contractor. See Cape Ann Granite Co. v. United States, supra, 100 Ct.Cl. at 71-72. In the present case, con­tract provision lA-06(b), a meteorological chart of past weather averages, established the usual weather conditions to be expected during contract performance. Notwith­standing the occurrences of unusually se­vere weather, however, a plaintiff is only entitled to an extension of contract time if such unusually severe weather has an ad­verse impact on the construction being per­formed. See Essential Constr. Co., ASBCA Nos. 18491, 18611, 18652, 18707, 78-2 BCA 1113,314.

On a daily basis, the contractor complet­ed a Daily Inspection Report (DIR) and the Government completed a Quality Assur­ance Report (QAR). These reports record daily rainfall, temperature extremes, and a rating of how the weather affected work that day.1 While certain testimony indi­cated that the parties did not always com­plete the reports on a daily basis, the Court believes that the DIRs and the QARs rep­resent the most reliable documents present­ed regarding both the actual weather at the job site and its effect on job performance. Accordingly, the Court has utilized these documents in assessing the merits of the plaintiff’s weather claims.

During October 1978, Fortec claims five days of weather delay. According to con­tract provision lA-06(b), October averages 2.01 inches of rain, with four days receiv­ing at least a .10 inch of rainfall. In Octo­ber of 1978, both the DIRs and the QARs recorded only two days of rain, with a total monthly rainfall of .25 inches, and only one day in which at least a .10 inch of rain fell. This amount of precipitation is below the monthly average and does not constitute unusually severe weather. Therefore, For­tec’s claim for five days of weather delay is denied.

During November 1978, Fortec claims eight days of weather delay. According to contract provision lA-06(b), November av­erages 2.45 inches of rain, with four days receiving at 'least a .10 inch of rainfall. The DIRs recorded 3.25 inches for the month, and the QARs recorded 3.70 inches of rainfall for the month. Both the DIRs and the QARs recorded only three days in which at least a .10 inch of rain fell. For-­tee’s DIRs for the month indicate that com­plete work stoppage occurred on three days during the month and that partial work stoppage occurred on three other days. The QARs recorded a complete work stop­page on three days during the month and a partial work stoppage on only two other days during the month. In Modification P005, the Government granted Fortec a one-day extension for the weather delay in November of 1978. Since one additional day has previously been awarded by the Government, the Court finds that there was not such unusually severe weather during the month as to require further extension of contract time.

During December 1978, Fortec claims nine and three-quarter days of weather de­lay. According to contract provision 1A-­06(b), December averages 4.05 inches of rain, with six days receiving at least a .10 inch of rainfall. Both the DIRs and the QARs agree that on two days during the month there was at least a .10 inch of rain, with a total monthly rainfall of a .5 inch. This amount of precipitation is below the monthly average and does not constitute unusually severe weather. Further, while the contract indicates that weather related delay should be expected on six days dur­ing the month, the DIRs and the QARs recorded only five days in which weather related delay was experienced. Therefore, Fortec’s claim for nine and three-quarter days of weather delay is denied.

During January 1979, Fortec claims twelve and one-half days of weather delay. According to contract provision lA-06(b), January averages 3.37 inches of rain, with six days receiving at least a .10 inch of rainfall. Both the DIRs and the QARs recorded 2.0 inches of rain in January of 1979, with four days receiving at least a .10 inch of rain. In addition, however, the DIRs and the QARs recorded seven days in which weather related delay was experi­enced. At trial, Mr. Jack C. Cook, Jr., a Government engineer, conceded that a one-­day extension for unusually severe weather in January of 1979 should have been al­lowed. Accordingly, this Court grants For­tec one day of delay for January 1979 and finds that further time extension is unmer­ited. Thus, Fortec should have expected six days of weather related delay and has now been given a seventh day to reflect Fortec’s actual seven days of weather re­lated delay.

During February 1979, Fortec claims eleven and three-quarter days of weather delay. According to contract provision 1A-­06(b), February averages 4.26 inches of

OTHER Explain. rain, with eight days receiving at least a .10 inch of rainfall. The DIRs recorded 2.0 inches of rain for the month, and the QARs recorded 4.05 inches of rain. The DIRs indicate that rain fell on two days during the month and that on those two days at least a .10 inch of rain fell. The QARs indicate that rain fell on five days during the month and that on three of those days at least a .10 inch of rain fell. Since this amount of precipitation is below the monthly averages, it does not consti­tute unusually severe weather. In addi­tion, under contract provision lA-06(b), Fortec could expect eight days in which weather related delay would occur. The DIRs and the QARs recorded eight days in which weather related delay was actually experienced. Therefore, Fortec’s claim for eleven and three-quarter days of weather delay is denied.

During March 1979, Fortec claims five and three-quarter days of weather delay. According to contract provision lA-06(b), March averages 4.94 inches of rain, with seven days receiving at least a .10 inch of rainfall. Both the DIRs and the QARs recorded one day of rain in March of 1979. The reports recorded a .5 inch and .3 inch of rainfall, respectively. These amounts of precipitation are substantially below the monthly averages and do not constitute unusually severe weather. Therefore, For­tec’s claim for five and three-quarter days of weather delay is denied.

During April 1979, Fortec claims nine and three-quarter days of weather delay. According to contract provision lA-06(b), April averages 3.75 inches of rain, with four days receiving at least a .10 inch of rainfall. The DIRs and the QARs recorded approximately 1.5 inches of rain for the month, with three days receiving more than a .10 inch of rain. However, the DIRs and the QARs recorded five days in which weather related delay was experienced. In Modification P007, the Government grant­ed Fortec a one-day extension for April of 1979. Since one additional day has previ­ously been awarded by the Government, the Court finds that no further time exten­sion is merited.

During May 1979, Fortec claims 10 days of weather delay. According to contract provision lA-06(b), May averages 3.32 inches of rain, with five days receiving at least a .10 inch of rainfall. Both the DIRs and the QARs recorded a total monthly rainfall of approximately 3.45 inches, with four days receiving at least a .10 inch of rain. While the recorded rainfall exceeded the usual amount for this month, the DIRs and the QARs recorded only four days of weather related delay for the month. Un­der the usual rainfall data included in the contract, five days of weather related delay can be expected in May. Therefore, Fortec has not suffered any delay which was the result of unusually severe weather, and Fortec’s claim for 10 days of weather delay is denied.

During June 1979, Fortec claims five and one-half days of weather delay. According to contract provision lA-06(b), June aver­ages 3.34 inches of rain, with five days receiving at least a .10 inch of rainfall. While the DIRs recorded no rainfall during the month of June, the QARs recorded one day with more than a .10 inch of rain and a monthly rainfall- of approximately .24 inches. These amounts of precipitation are below the monthly averages and do not constitute unusually severe weather. Fur­ther, while the contract indicates that weather delays could be expected on five days during June, the DIRs and the QARs recorded only three days of weather relat­ed delay for the month. Therefore, For­tec’s claim for five and one-half days of weather delay is denied.

In summary, as to the plaintiff’s claim for time extension due to unusually severe weather, this Court will only allow Fortec the one-day extension of contract time con­ceded by the Government for the weather delay that occurred during the month of January 1979.

B. Modification P006 (Valve Pit)

On. June 23, 1980, the Govern­ment issued unilateral Modification P006 in the amount of $7,050.07, without any time extension, as a result of the Corps’ design error, contained in the original contract, in the dimensions of the project’s under­ground water line valve pit. The modifica­tion ordered the enlargement of the valve pit from 5 feet by 5 feet to 13 feet by 12 feet 2 inches, following the contractor’s discovery that a 5 foot by 5 foot valve pit would not physically hold the piping re­quired to be installed. The valve pit was constructed below ground and contained concrete slab walls through which pipes and valves ran to provide shut-offs for distribution of water from the water tank. This unilateral modification was rejected by Fortec, since it neither included payment of all direct costs and extended overhead nor an extension of contract time. As a result of the additional work, Fortec seeks pay­ment for this change in the amount of $12,325.04, including payment of extended overhead for 14 days, and a time extension of 14 days. Thus, under Count III of its Complaint, Fortec seeks to actually recover $5,274.97 in addition to the amount previ­ously paid by the Government under Modi­fication P006.

The existence of the Corps’ design error was first brought to the Corps’ attention by Mr. Kelvin Wright, Fortec’s superin­tendent, by letter dated March 26, 1979. Excavation for the valve pit began on April 4, 1979. By letter dated April 13, 1979, the Corps acknowledged that a design error did exist and advised that a modification would be issued that would increase the valve pit size. New dimensions for the valve pit were given to the contractor on April 23, 1979, and the reinforcement detail, which was required to construct the enlarged valve pit, was confirmed by letter dated April 26, 1979. Fortec then began forming the foundation in early May of 1979. The walls were poured on May 4, 1979, and the roof for the valve pit, which was the last item of work, was installed on May 23, 1979. Modification P006 was issued unilat­erally by the Government on August 24, 1979, in the amount of $5,039.80, based on the Corps’ construction cost estimates. No time extensions for the extra work was allowed. While Modification P006 was re­vised by the Corps on June 23, 1980, to allow $7,050.07 for this unilateral change, the increased amount was still based on the Corps’ estimated construction costs. Also, the revised modification did not allow any time extension or extended overhead costs. This revised unilateral modification was also rejected by Fortec for the above rea­sons.

The Government’s resident engineer and contracting officer’s representative for this contract, Mr. Jack C. Cook, Jr., admitted, at trial, that the work on the valve pit caused some delay to the contractor and that he recognized that the same people construct­ing the valve pit were also doing other work on the project.

Fortec employed a small general con­tracting crew of under 10 men. Since con­struction of the valve pit was the responsi­bility of Fortec, in its capacity as the gener­al contractor, the same workmen used to construct the enlarged valve pit were also the same workmen employed by Fortec to do the piping work for the force main, to install the roofing material, to install interi- or finishes and fixtures, and to construct concrete work, manholes and valve cham­bers. Accordingly, the additional time re­quired for the crew to construct the much larger valve pit prevented them from doing other work during this period and thereby had a direct impact on the overall progress of the project.

Mr. Cook further testified that the au­thority to proceed with this change was not issued until July 25, 1979, although Fortec advised the Corps of the problem in March of 1979, four months earlier. Fortec, how­ever, proceeded to do this work and, in fact, substantially completed the work be­fore July 25, 1979. If Fortec had awaited direction from the Corps to proceed, the work would have been done after the scheduled contract completion date and during the period in which Fortec was be­ing assessed liquidated damages by the Corps.

Mr. Francis Chin, Fortec’s Quality Con­trol Representative at the contract site, testified that there was considerable delay resulting from the Corps’ defective design of the valve pit. He estimated the length of the delay at between seven and eight weeks. In addition, Mr. Rodney Guise, Fortec’s Project Manager, testified that the delay was at least 14 days and that he felt that a contract extension of 14 days would be a very reasonable figure for the delay involved, particularly in view of the size change to the valve pit and the relatively small number of Fortec’s own workers on the job. The Court agrees with Mr. Guise’s assessment and allows a 14-day extension for the Government-caused delay in the valve pit construction.

In addition, the plaintiff’s claim of $12,-­325.04, for the extra work required to con­struct the valve pit, is reasonable and will be allowed. The plaintiff submitted its di­rect costs for the valve pit work on July 5, 1979, in the amount of $8,363.00. The plaintiff then added to this figure the ex­tended overhead of $318.36 per day for 14 days, 10 percent profit, and the bond premi­um.2 This amounted to $14,176.04. The plaintiff then deducted $1,851, as the origi­nal bidding estimate on the 5 foot by 5 foot valve pit. Thus, the plaintiff is entitled to receive $12,325.04 as reasonable compensa­tion for the extra work.

The Government’s $7,050.07 modification allowance was based only on the Govern­ment’s cost estimates, rather than on actu­al costs, and did not include any amounts for extended overhead, profit, and bond premium. This amount simply does not make the contractor whole for the extra work required because of the Corps’ design error. The plaintiff’s claimed amount does.

Accordingly, after carefully considering all of the evidence presented on this issue, the Court finds that Fortec is entitled to recover an additional $5,274.97, including 14 days of extended overhead, and a time extension of 14 days for this Government-­caused delay.

C. Modification P009

Modification P009, unilaterally issued by the Corps and rejected by the plaintiff, included four different items. Those items are as follows:

1. the removal of an existing septic tank to eliminate its conflict with the foun­dation work;

2. the deletion of the contract require­ment for Fortec to remove the existing overhead electrical lines;

3. the change in design of the trench frame and grate that was located at the center of the hangar concrete slab; and

4. the adjustment of the hangar doors to correct their improper operation caused by the deflection of the steel roof trusses. The Corps authorized payment of $6,800.15 and a one-day extension of contract time for these four changes under General Pro­vision 3, Changes, of the contract. Fortec, however, seeks a total of $21,167.78 for these four changes, including extended overhead for 36 days, together with an extension of contract time of 139 days.

1. Removal of the Septic Tank

It was acknowledged by the Corps, at trial, that the existence of an underground septic tank at the location of the hangar foundation constituted a differing site con­dition under General Provision 4, Differing Site Conditions, of the contract, entitling Fortec to additional compensation and to a one-day extension of contract time.

The Corps paid Fortec $1,244.64 and granted a one-day time extension for re­moval of the septic tank. Fortec, however, seeks $1,327.33 for this change, including extended overhead for one day. The costs submitted by Fortec are reasonable as is Fortec’s request for a one-day extension of contract time, since the evidence indicates that removal of the septic tank directly delayed the work on the hangar foundation by one day. The foundation for the hangar was a critical early item of work at the time.

Fortec’s direct costs for this item of work were $882. The plaintiff then added to this figure extended overhead of $318.36 for one day, 10 percent profit, and the bond premium. This amount equals $1,327.33. The Court finds this figure to be reason­able and appropriate.

Accordingly, Fortec is entitled to recover an additional $82.69, representing the dif­ference between the amount Fortec is enti­tled to be paid for removal of the septic tank and the amount previously paid by the Corps, and to receive a one-day extension of contract time.

2. Deletion of removal of electric poles and wiring

Prior to trial, Fortec never agreed to the reduction in contract price included in Mod­ification P009 for deletion of the electric pole removal work, which was not required since the poles and wires shown on the drawings were not in fact present at the site. At trial, both parties agreed that $646.92 for the deletion of this work is reasonable and should be deleted from the total claimed by Fortec for the remaining additional work that was performed under unilateral Modification P009. Accordingly, this Court will delete $646.92 from the total claimed by Fortec for the additional work under Modification P009..

3. Trench frame and grate

The contract called for the installation of an iron frame and grate over a 53 foot long concrete trench, which was to be placed in the center of the sloped slab concrete floor in the main hangar area of the building to allow water and other residue to flow into the pit. The hangar is 84 feet long by 84 feet wide. The roof above the pit is ap­proximately 25 to 30 feet high and is placed upon exposed metal joists. During the course of construction, Fortec determined that the frame and grate, as detailed in the contract specifications, did not have suffi­cient design strength to adequately support the aircraft wheel loads that would be placed on the frame. Specification 5M1-16 called for a grate that would support some 10,800 pounds per square foot, whereas the drawings seemingly called for support of approximately 75,000 pounds per square foot. Since the Corps’ frame and grate design specifications and drawings were in conflict, the trench could not be construct­ed until the necessary weight and load strength of the grate was selected by the Corps, because the size of the grate deter­mined the support required in the concrete trench slab.

The problem first surfaced when Fortec sent its shop drawings to Mr. Cook for approval on January 23, 1979. Its grate fabricator (Neenah Foundry Company) had designed the grate to the weight limits indicated in the specifications. Mr. Cook rejected the drawings on January 29, 1979, with all notations referring to the drawings and none to the specifications. Apparently, Mr. Cook did not check the weight support required by the specifications. The next documentary evidence of the problem oc­curred on April 16, 1979, when Mr. Kelvin Wright, Fortec’s Superintendent, wrote an urgent letter to the Corps, which detailed the problem. The letter requested a deci­sion as to the support weight required of the grate as soon as possible so that the grate could be ordered and fabricated, since the “impact of the situation * * * at this stage is so critical.” The trench had been originally formed on April 6,1979, but final pouring of the concrete had to be stopped awaiting correction of the design defect. When Mr. Francis Chin arrived on the job as Quality Control Representative in mid-April of 1979, the center area of the hangar floor was still open, since Fortec had not yet received instructions on the grate design requirements. By telegram dated April 20, 1979, Fortec again request­ed clarification concerning the design crite­ria for the frame and grate. By letter dated April 26, 1979, Mr. Chin wrote to the Corps again requesting the revised design criteria for the grate. Finally, by letter dated May 14, 1979, Mr. Chin confirmed that the design criteria for the grate had been verbally communicated to him. Im­mediately thereafter, the grate was or­dered by Fortec and finally arrived on July 27, 1979.

The Government’s delay in correcting the frame and grate design defect significantly delayed work inside the hangar area. Par­ticularly, the completion of the concrete slab was delayed awaiting a decision by the Corps on the frame and grate. However, in an effort to minimize the effect of the delay being caused by the frame and grate design defect, Fortec proceeded to pour the concrete floor slab except for the center portion, leaving exposed an area 53 feet long by 16 feet 8 inches wide. Thus, an area 53 feet by 16 feet 8 inches, out of a total area of 84 feet by 84 feet, was left unpoured until August 6, 1979.

This procedure was decidedly abnormal. Normally, the entire concrete slab is poured continuously. However, partial pouring of the floor slab, with the middle open, allowed Fortec to work around the trench area but still resulted in a Govern­ment-caused delay. The open area in the middle of the slab hindered direct access and impeded the subcontractors’ work, since they could not move their rolling scaf­folding across the floor area freely. Spe­cifically, the electrical subcontractor, the sprinkler subcontractor, the finishers, the alarm subcontractor, and all other trades working inside and overhead were delayed.

At the same time, the hangar interior was exposed to the elements, since the roof ventilator, another design change under Modification P011, had not been installed, leaving the center of the hangar roof above the trench open and exposing the clay soil in the hangar trench to the weather. As Mr. Chin testified at trial, the open trench created a muddy condition slowing the overall work being done in the hangar area.

The Corps’ estimate for the direct cost of this change was $4,797.46. Fortec, how­ever, seeks payment of $13,536.87 for this change, including 25 days of extended over­head and a 101-day extension of contract time. The 101 days is the time from the Corps’ disapproval of the original shop drawings (January 29, 1979), which con­tained a frame and grate according to the original contract design specifications, through the date of receipt of verbal in­structions concerning the new loading re­quirements (May 10, 1979). The total time that elapsed, as a result of the frame and grate change (the period from submittal of the original shop drawings until the instal­lation of the new frame and grate) was some 191 calendar days.

Fortec is claiming $13,536.87 as its rea­sonable costs in performing the extra work involved in correcting the Government’s frame and grate design error. Fortec’s direct costs were $6,996, which represent the cost of the new frame and grate and transportation to the job site. To that fig­ure, it added 25 days of extended overhead at $318.36 per day, a 10 percent profit, and a bond premium of .00525 percent. This computation equals $16,536.87. From this figure, it subtracted $3,000, for the bidding estimate on the old frame and grate, to arrive at the $13,536.87 figure claimed. In addition, Fortec is claiming a 101-day ex­tension of contract time as a result of the alleged Government delay.

The Corps, while acknowledging that its specifications were defective, only allowed the plaintiff a total of $4,797.46. It arrived at this figure by allowing the plaintiff 75 percent of the directs costs ($5,250.00) and subtracting a percentage of the old frame and grate bid ($1,417.50) for a total of $3,832.50. It then added: sales tax of 4 percent ($153.30); overhead of 10 percent ($398.58); profit of 8.85 percent ($388.02); and bond premium of .00525 percent ($25.06). The Corps’ resulting allowance to the plaintiff was $4,797.46. The Corps, however, refused to allow payment of any extended overhead and refused to allow any extension of contract time due to the design defect. The Government’s sole ra­tionale being, as will be discussed later, that Fortec failed to justify these requests by reference to the network analysis sched­ule (NAS).

The evidence presented, however, proved to the satisfaction of this Court that the project was delayed, in fact, at least 101 days by virtue of the Corps’ design defect and that a claim for payment of at least 25 days of extended overhead, during this pe­riod, was also reasonable. It appears rea­sonable to this Court that the 101 days should be charged to the Government as delay from the day Mr. Cook denied the plaintiff’s shop drawings on the grate (without looking at the defective specifica­tions) on January 29, 1979, to the day the plaintiff was verbally notified of the appro­priate weight support figures to be incorpo­rated into the new design frame and grate on May 10, 1979. While the plaintiff has limited its claim for recovery to only 25 days of extended overtime, it may well have succeeded in proving more to this Court had it chosen to do so. In any event, this Court believes that a 25-day extended overhead figure is reasonable under the factual circumstances involved herein.

Accordingly, Fortec is entitled to recover $13,536.87 for the additional work necessi­tated by this design defect, including 25 days of extended overhead, less the $4,797.46 previously paid Fortec for this work. The Court finds such amount to be reasonable in view of the extra work per­formed by Fortec. In addition, Fortec is entitled to a 101-day extension of contract time for this Government-caused delay.

4. Hangar doors

The hangar doors consist of six large panels that slide across the front opening of the hangar and that are supported by a steel truss 87 feet long. The parties are in agreement that Fortec originally installed the hangar doors in accordance with the contract specifications. The steel truss, however, was not adequately designed to support the weight of the hangar doors. Once the doors were hung, the truss de­flected downward several inches rendering the doors inoperative. Specifically, when the two center door panels were raised into position, it was discovered for the first time that the rollers hit the main truss in the center position, thus jamming the doors. Initially, the rollers were lowered, but this caused them to miss the guides at the top of the doors. Finally, a contractor-de­signed three-inch extension was welded to the bottom tip of the angle guides, solving the problem.

Fortec sought a change to the contract under General Provision No. 3, Changes, seeking additional compensation, including 10 days of extended overhead, and a 32-day time extension.3 The time required to cor­rect the deflection problem took 44 days, from the discovery of the design defect on August 8,1979, as indicated on the contrac­tor’s Daily Inspection Report for that date, through completion of the modification work on September 21, 1979. Mr. Cairns, the Corps’ inspector, admitted that there was a Government-caused delay from the time the problem was recognized until it was corrected. Mr. Cairns could neither pinpoint the exact amount of delay involved nor identify any document that would as­sist the Court on this issue. However, he did testify that the delay from the point of discovery of the design defect on August 8, 1979, to the time of resolution could well have been one to two weeks. He was definite that the work needed to implement the solution consumed four days. Mr. Chin, likewise, was unable to be precise on the amount of delay, but, when pressed, he offered a figure of three to four weeks. Mr. Guise testified that Fortec’s claim for a 32-day contract extension was a very rea­sonable figure and that the 10 days of extended overhead was more than reason­able, since the cause for the delay was another defective Government design speci­fication.

Fortec’s inability to complete the doors delayed installation of door controls and trim as well as completion of the overall hangar project, since the doors were on the critical path and since the doors had to be completed before the project would be ac­cepted. Further, all of this corrective work was performed by Fortec after the contract time had expired and while the Corps was assessing liquidated damages against For­tec.

Given the foregoing facts, Fortec’s re­quest for a 32-day extension of contract time and for 10 days of extended overhead, in light of the amount of direct costs and concurrence of other delays, is reasonable. The plaintiff computed its claim for the hangar door extra work at $6,303.58. It had direct costs (materials and service equipment) of $2,517, to which it added the 10 days of extended overhead at $318.36 per day, 10 percent profit, and the bond premium of .00525 percent. The resulting figure is $6,303.58.

The Corps allowed the plaintiff only $1,404.97 for this additional work. Specifi­cally, the Corps allowed the plaintiff only $1,048.01 for its direct costs, to which it added subcontractor overhead of 10 per­cent ($104.80), subcontractor profit of 9.6 percent ($110.66), prime contractor over­head of 5 percent ($63.16), prime contractor profit of 5.35 percent ($70.97), and a bond premium of .00525 percent ($7.37), for a total allowable change of $1,404.97. In view of the evidence received on this design defect, the Government was simply unrea­sonable in not allowing the plaintiff’s direct costs of $2,517 and the 10 days of extended overhead. Overall, the plaintiff’s calcula­tions are reasonable and will be accepted by this Court as such.

Accordingly, Fortec is entitled to pay­ment of $6,303.58, including 10 days of extended overhead, less the $1,404.97 previ­ously paid Fortec for this work. In addi­tion, Fortec is entitled to a 32-day extension of contract time for this Government-­caused delay.

D. Modification P010 (Concrete Slabs)

The contract called for the pouring of 144 concrete slabs in front of the hangar, at a cost of $60,000. Two concrete slabs, DX 8J and DX 8K, were determined to be defective by the contracting officer, and a deduction of $3,630.94 was unilaterally tak­en. The Government’s evidence presented at trial is to the effect that this amount should be reduced to $2,000.

Under Count V of its Complaint, Fortec claims that the parties reached a mutual agreement to accept a $600 credit for the defective slabs and that the deduction of any amount above $600 is unreasonable. Fortec’s Project Manager, Mr. Guise, who claims to have negotiated the $600 credit with the Government, based his testimony upon a handwritten note on a contract form, but he does not remember when the agreement was reached, where the meeting took place, or who accepted the credit on behalf of the Government, and no record was ever made of any conversation con­firming the agreement. The contracting officer’s representative, Mr. Cook, testified that he did not agree to and is unaware of any agreement to accept a $600 credit for the defective slabs. There is no tangible evidence to the effect that the parties reached an agreement to accept $600 as a credit for the defective slabs.

The contract contained detailed specifica­tions on when concrete slabs must be re­placed and when they could be repaired. These provisions also allowed the contract­ing officer to accept defective work with an appropriate credit to the Government. The evidence clearly shows that the two con­crete slabs were defective under the speci­fications. The proposed credit of $2,000 is a reasonable cost for the two defective slabs, since one slab and a part of a second slab must be replaced and since additional work would be required to provide load transfer to other concrete slabs. Further, Fortec presented no evidence to establish that replacing these slabs would cost less than $2,000.

Accordingly, since the Government has already withheld $3,630.94 for the two de­fective concrete slabs, the plaintiff is enti­tled to be reimbursed $1,630.94, the differ­ence between the $3,630.94 previously with­held by the Corps and the $2,000.00 credit awarded to the Government herein.

E. Modification P011 (Roof Ventilator)

On June 16, 1980, the Corps issued uni­lateral Modification P011, in the sum of $5,335, for installation of a more sophis­ticated and expensive roof ventilator than reasonably called for under the original contract specifications. It is undisputed that the roof ventilator actually installed was a change to the contract pursuant to Clause 3 of the General Provisions of the contract. Fortec refused to accept Modifi­cation P011 on the basis that it did not adequately compensate Fortec for the rea­sonable costs incurred in purchasing and installing the upgraded roof ventilator and that it did not grant Fortec an extension of contract time and extended overhead for the delay to the project incurred as the proximate result of the change. The “problem” connected with the roof ventila­tor was that the original contract drawings included a roof ventilator, while the techni­cal specification laying out the details of the ventilator were omitted from the con­tract documents. The plaintiff notified the Corps of this design omission by letter dated March 26, 1979. The Corps acknowl­edged the design omission by letter dated April 13, 1979, and ultimately agreed that this omission amounted to a change in the original contract. Fortec, under Count VI of its Complaint, is presently seeking pay­ment of $12,136.81, including 19 days of extended overhead, together with a 37-day extension of contract time for this addition­al work.

By letter dated November 5, 1979, Mr. Guise set forth the delay incurred by For­tec in connection with the roof ventilator design change. In Mr. Guise’s letter, it was pointed out that 162 calendar days elapsed between the time that Fortec noti­fied the Corps of the problem with the roof ventilator (March 26, 1979) and the day that the roof ventilator arrived at the job (September 4, 1979). However, Fortec is only seeking an extension of contract time for the delayed shipping time between July 27, 1979, and September 4, 1979, a period of 37 days, and, during this period, only 19 days of extended overhead due to the con­currence of this delay with other Govern­ment-caused delays.

Completion of the hangar roof was de­layed by the change in the type of ventila­tor that was to be installed directly above the open trench in the hangar floor. Since the roofing was on the critical path of contract completion, the change in the roof ventilator necessarily delayed ultimate completion of the entire project. Before the ventilator arrived, the roof could not reasonably be completed. Without the technical specifications spelled out in the contract, the contractor could not be sure what load requirements the ventilator would place on the curbing and roof. Moreover, the roofing could not be complet­ed prior to installation of the ventilator, since the insulation felts and tar could not be applied until the curb, on which the ventilator is attached, was installed. Thus, the contractor was reasonably justified in not sealing the roof around the curb. Therefore, the center of the roof area re­mained open, permitting the entry of rain into the hangar and in turn into the trench below, which, as discussed above, was also left open awaiting the design information for the frame and grate. Both of these items delayed and impeded completion of the work in the hangar area and completion of the overall project. Both of these items were either design defects or design changes that were the Corps’ responsibili­ty. The inability to waterproof the hangar area delayed the work of various subcon­tractors working in the hangar, since they did not want to complete the work before the building was watertight and subject themselves to repair work that might be damaged by water. In addition, these same subcontractors were delayed by the absence of a concrete floor slab in the center of the hangar. The Court finds that the contractor was reasonable in delaying the completion of the roof until the ventila­tor was received, in order to ensure the appropriate load requirements to be placed on the curb and roof and to ensure that the roofing itself was not torn up by the venti­lator installation.

In early August of 1979, after the new frame and grate was received, the roof ventilator opening was sheathed in with plywood and visqueen. This was accom­plished in order to allow Fortec to finish pouring the concrete hangar slab and to install the frame and grate directly below the roof ventilator opening. Since the con­tract did not contemplate such sheathing, Fortec was forced to incur additional costs in order to complete the construction. For­tec was finally able to install the ventilator on September 8, 1979, four days after it was delivered, at a time when the Corps was assessing Fortec liquidated damages.

The evidence clearly indicates that Fortec is entitled to an extension of time and to payment of extended overhead for the de­lay in receiving the roof ventilator. Mr. Cook, in an internal memo dated November 15, 1979, stated that the delay between March 26, 1979, and April 19, 1979, (24 days) was a Government-caused delay. However, he went on to state that the contractor was delaying himself concur­rently and, therefore, denied any time ex­tension. It is interesting to note, however, that the Government, at trial, failed to in­troduce any evidence establishing specific contractor-caused delays. Further, it should be emphasized that during this same period, Fortec was being delayed as a result of Government design error changes on the valve pit and on the frame and grate. Mr. Cook also noted, in a subse­quent internal memorandum dated Novem­ber 19,1979, that Mr. Guise’s request for a 39-day extension of contract time had mer­it, since if the contract specifications had been complete the delay would not have been encountered. Mr. Cook, however, simply did not think that a 39-day extension was warranted. Mr. Cook was willing to offer a 24-day extension of contract time, however, as evidenced by his internal mem­orandum of November 15, 1979. Finally, Mr. Cook noted that Mr. Ball, who was employed by the Corps in contract adminis­tration, believed that additional time to pro­cure the ventilator should have been grant­ed to Fortec from the date the revised specifications were provided on April 19, 1979.

This Court, as discussed later in this opinion, does not believe that the Corps can validly assert that the contractor is pre­cluded from entitlement to an extension of contract time for one change merely be­cause he is concurrently being delayed on other changes for which the Corps is also responsible and is also denying extensions of time. It is significant to note that Mr. Cook limited the extent of the delay to the period March 26, 1979, through April 19, 1979, because he believed that the original curb for the roof ventilator could have been installed and that the roofing could have thereby proceeded. The evidence revealed, however, that additional curb reinforce­ment was ultimately required before the ventilator could have been installed. If the ventilator curb had not been reinforced, damage would have been caused to any roofing which had been installed before the ventilator was installed. Accordingly, this Court finds that Fortec acted prudently in waiting to install the curb until the roof ventilator had been delivered and the re­quired curbing reinforcement work per­formed.

Fortec is claiming $12,136.81 as its rea­sonable costs in connection with perform­ing the Government’s change on the roof ventilator for Modification P011.4 Fortec’s direct costs were $6,175, representing the materials and labor needed for the installa­tion. To that figure; the Court has added 19 days of extended overhead at $318.36 per day, 10 percent profit, and the bond premium at .00525 percent. This computa­tion equals $13,516.81. From this figure, the Court has subtracted $1,680, as the original bidding allowance, to arrive at the $11,836.81 figure allowed. This figure rea­sonably represents the amount that Fortec is entitled to recover for this extra work. In addition, the Court finds that the plain­tiff’s request for a 37-day extension of contract time is likewise reasonable.

The Corps allowed the plaintiff only $5,355, notwithstanding its acknowledged responsibility for causing Fortec substan­tial delay. It allowed the plaintiff some $6,031 for direct costs, to which it added 10 percent overhead, 6.55 percent profit, and a 1 percent bond premium, for a total allow­ance of $7,140. It then subtracted $1,785, as a credit for a minimum quality ventilator and curb, to arrive at its allowance figure of $5,355. The Corps, however, refused to allow Fortec any extended overhead and refused to allow any extension of contract time due to the Corps’ change.

Here again, the Government has justified its refusal to grant Fortec additional time and extended overhead on the basis that the plaintiff was delaying the construction of the project itself and was thus due no delay or extended overhead allowance from the Government. As already discussed, this stance is totally unacceptable and will not be countenanced.

Accordingly, Fortec is entitled to recover an additional payment of $11,836.81, includ­ing 19 days of extended overhead, less the $5,355 previously paid Fortec for this work. In addition, Fortec is entitled to a 37-day extension of contract time for this Govern­ment-caused delay.

F. Subcontractor Claims

Fortec submitted two claims on behalf of its mechanical subcontractor, Rhodes Me­chanical. The first claim dealt with the Corps’ directive that Rhodes either move the hangar’s unit heaters out of the hazard­ous zone indicated on the contract draw­ings or provide explosion-proof motors for the unit heaters. Rhodes elected to move the heaters, and Fortec submitted a claim for additional compensation for the addi­tional work. The second claim relates to the Corps’ directive that dielectric unions be provided where the hangar’s copper pip­ing connects to the steel fitting on the hangar’s oil tank. Fortec claims the con­tract only requires dielectric unions at pipe connections and not at the connection be­tween the copper piping and the steel fit­ting on the oil tank.

1. Unit Heater Claim

The contract drawings indicated the location of the unit heaters and also the location of the hazardous area within the hangar as being four feet above the floor and two feet from the walls of the hangar. The unit heaters were hung by the subcon­tractor approximately four feet from the hangar walls. As a result, the Corps gave Fortec the option of either furnishing ex­plosion-proof motors or moving the heaters out of the hazardous area.

Contract Specification Section 16W1-2.1 required that the heaters’ installation con­form to the requirements of the National Electric Code. In case of any differences or discrepancies between the specifications and the National Electric Code, the specifi­cations were to govern. Here the specifica­tions did not detail whether explosion-proof motors were required to be a part of the unit heaters. The National Electric Code, however, incorporated by reference into the specifications, clearly required explosion-­proof motors in unit heaters installed with­in a hazardous area. Under the contract drawings, Fortec could have elected to in­stall the unit heaters within the hazardous area if it provided explosion-proof motors in those unit heaters. Alternatively, it could have installed the unit heaters out­side of the hazardous area without explo­sion-proof motors. Regardless of where the unit heaters were installed, the plaintiff had to comply with the National Electric Code, unless it conflicted with the specifica­tions. Since the specifications were silent on the point of whether explosion-proof mo­tors were to be included in the unit heaters, this Court finds that no conflict existed between the specifications and the National Electric Code. Accordingly, the provisions of the National Electric Code, regarding explosion-proof motors in unit heaters, were binding on the plaintiff.

In addition, this Court believes that com­mon sense should have dictated that the subcontractor, if it had any doubts about where the unit heaters were to be located or whether explosion-proof motors were to be provided, should have consulted the ap­propriate on-site Corps personnel before proceeding to install the potentially hazard­ous motors in a hazardous area. Since Fortec and its subcontractor misinterpreted the specifications, they are not entitled to additional money or to an extension of con­tract time for the reinstallation of the unit heaters.

2. Dielectric Union Claim

Fortec next seeks to recover the additional cost incurred in installing a die­lectric union between the copper pipe and the steel fitting on the oil tank. A dielec­tric union is a union which prevents corro­sion between different types of metal which are placed in contact with each other, in this instance, between copper pipe and a steel tank extension. The contract, in Sec­tion 15H3, subsection 18.6.3.1, Dielectric Pipe Unions, provided that:

Dielectric pipe unions shall be provid­ed between ferrous and nonferrous pip­ing to prevent galvanic corrosion.

The issue thus presented is whether the steel junction of the oil tank and the copper pipe is a “joinder of ferrous and nonferrous piping.” It is Fortec’s position that there is no requirement in the specifications that dielectric unions be provided at equipment connections. While there is a specific re­quirement for dielectric unions between ferrous and nonferrous piping, there is no contract requirement for such unions at equipment connections. Here, Fortec pro­vided dielectric unions between ferrous and nonferrous piping.

After considering all of the evidence, this Court believes that the steel reducer fitting was a part of the piping system connected to the oil tank and that Fortec, therefore, is not entitled to recover on this claim.

G. The Network Analysis System

The network analysis system (NAS) re­quired by the contract, Section 1C-14,S in­cluded a network diagram, showing the order and interdependence of activities and the sequence in which the work was to be accomplished as planned by the contractor, and a mathematical analysis of the network diagram, including a tabulation of each ac­tivity. Fortec chose to use the critical path method (CPM) network analysis system.

The, CPM breaks down the entire project into individual tasks and assigns a number of days anticipated to perform each task. In Haney v. United States, 230 Ct.Cl. 148, 167-68, 676 F.2d 584, 595 (1982), this Court’s predecessor, the United States Court of Claims, described the CPM in the following manner:

Essentially, the critical path method is an efficient way of organizing and schedul­ing a complex project which consists of numerous interrelated separate small projects. Each subproject is identified and classified as to the duration and precedence of the work. (E.g., one could not carpet an area until the flooring is down and the flooring cannot be complet­ed until the underlying electrical and telephone conduits are installed.) The data is then analyzed, usually by comput­er, to determine the most efficient sched­ule for the entire project. Many subpro­jects may be performed at any time with­in a given period without any effect on the completion of the entire project. However, some items of work are given no leeway and must be performed on schedule; otherwise, the entire project will be delayed. These latter items of work are on the “critical path.” A delay, or acceleration, of work along the critical path will affect the entire project.

Further, in G.M. Shupe, Inc. v. United States, 5 Cl.Ct. 662, 728 (1984), this Court stated that:

The reason that the determination of the critical path is crucial to the calculation of delay damages is that only construc­tion work on the critical path had an impact upon the time in which the project was completed. If work on the critical path was delayed, then the eventual com­pletion date of the project was delayed. Delay involving work not on the critical path generally had no impact on the eventual completion date of the project.

The Court went on to recognize, however, that the critical path can change and that items not originally on the critical path can become critical. Id. See Morris Mechani­cal Enterprises, Inc. v. United States, 1 Cl.Ct. 50, 58, 554 F.Supp. 433, 441 (1982). Thus, if the CPM is to be used to evaluate delay on the project, it must be kept cur­rent and must reflect delays as they occur.

In the instant case, the CPM was updat­ed only once, in August of 1979. This update did not consider delays in work per­formed prior to the update, nor, obviously, in work that occurred after the update through the date of acceptance of the project by the Corps. Mr. Kaplan, Fortec’s president, testified that CPMs are normally not updated on projects having an anticipa­ted duration of less than a year, since the time required to get signed modifications from the Corps and to get the CPM con­sultant to update the computer material based on those modifications exceeds the time available in short-term projects. The project involved herein had an anticipated duration of only one year and was thus a short-term project.

Despite the obvious failure of both par­ties to use the CPM for scheduling pur­poses during construction, the Government now claims that the additional work Fortec was required to perform does not justify any contract time extensions, since the CPM does not show that any of the addi­tional work was on the project’s critical path. In support of its position, the Government relies entirely upon the once-­revised CPM, which does not reflect the critical path actually followed during con­struction. It is interesting to note, how­ever, that the Government, while arguing that it prepared CPM schedules to evaluate Fortec’s claims for extension of contract time, introduced CPM schedules showing the “removal of telephone poles” to be on the critical path. As already discussed above, such telephone poles, since they nev­er existed, could not have represented the critical path. If the Corps updated the CPM each time it evaluated Fortec’s claims, it failed to introduce such updated CPM schedules at trial. In fact, the parties have agreed that, during the course of contract performance, only one revision to the original CPM was ever done.

Mr. Cook testified that: (1) the CPM diagram introduced at trial did not depict the actual critical path, since it was not current as of the updated mathematical summaries offered into evidence; (2) the activities on the mathematical summaries would not show up after they were com­pleted; and (3) the information set out on the mathematical summaries represented an estimate that was prepared prior to performance. Mr. Cook not only admitted that the CPM in evidence did not reflect actual performance, but he also admitted that the critical path can and does change during performance. Indeed, Mr. Cook ac­knowledged that delay encountered in com­pletion of a noncritical item may make that item critical so that “every month, conceiv­ably, the critical path would change,” which is precisely what happened in the instant case. The critical path changed from that depicted on the CPM diagram introduced into evidence. The Corps, how­ever, refused to grant timely and adequate time extensions and to authorize revisions to the CPM to reflect the changed perform­ance critical path. As a result, it is impos­sible to determine from the CPM diagram whether a particular activity was critical or noncritical, on schedule or behind schedule. Further, the Corps failed to even consider several of Fortec’s requests for additional compensation and time extensions until af­ter the project was completed. Fortec could not update the CPM without receipt of modifications from the Corps adding the additional work, and then only with the concurrence of the Corps as to the time to be added. Contract § lC-14(c)(2). Accord­ingly, Fortec was unable to update the CPM during construction. This inability, caused by the Corps’ failure to act in a timely fashion, should not now be used as a sword against Fortec.

Reliance upon an incomplete and inaccu­rate CPM to substantiate denial of time extensions is clearly improper. While the contract states that the CPM shall be used to evaluate the impact on the contractor’s work in determining the allowance of time extensions, it also states that the CPM to be so used must include time revisions. Contract § 1014(c). Consequently, the contract requires the use of a properly revised and updated CPM to evaluate claims for time extensions.

Section 1014(d) provides for revisions to the CPM where contract changes are made by the Government. This provision pro­vides that, where the Government revises the work in such a way as to affect the sequence or duration of activities, the con­tractor shall promptly revise the logic on the diagram following issuance of a notice to proceed. This provision further provides that, “if the Contractor fails or refuses to incorporate the changed work in network, the Contracting Officer may furnish logic revisions which the Contractor shall include and use in the network analysis until the modification is settled or until actual dates supersede the estimated data.” In the in­stant case, where no notices to proceed were issued by the Corps, except for the valve pit notice to proceed, which was itself issued after the fact, and where the Corps refused to acknowledge any time exten­sions, Fortec was unable to make any changes to the CPM. Accordingly, the ex­press language of the contract requires the rejection of the use of an incomplete CPM to evaluate Fortec’s time extension re­quests. Contract § lC-14(d).

It is difficult, if not impossible, for this Court to comprehend how the Corps could have used the CPM to evaluate Fortec’s time extension claims without modifying the CPM to reflect the additional work Fortec was directed to perform—the valve pit, the frame and grate, the hangar doors, and the roof ventilator. These items were all major components of the hangar project. If the Corps made such modifications to the CPM, this Court cannot understand why the Corps did not issue a formal modifica­tion (logic revision), which Fortec would have then been required to include and use in its CPM analysis.

In Continental Consolidated Corp., ENG BCA Nos. 2743 and 2766, 67-2 BCA ¶ 6624, the Army Corps of Engineers Board of Contract Appeals held that if the CPM is used to evaluate requests for time exten­sions it must reflect actual project condi­tions. In Continental, the contractor sought extra costs incurred due to suspen­sions of work and due to subsequent accel­eration directed by the Government, claim­ing the Government’s delay in-approving shop drawings and in granting adequate time extensions delayed the project comple­tion. The Government claimed that accel­eration was justified, since the CPM re­vealed the project was behind schedule. The board rejected the Government’s re­liance on the CPM, stating that:

It is essential that any changes in the work and time extensions due to the con­tractor be incorporated into the progress analysis concurrently with the perform­ance of the changes or immediately after the delay and thus integrated into the periodic computer runs to reflect the ef­fect on the critical path. Otherwise, the critical path chart produced by the com­puter will not reflect the current status of the work performed or the actual progress being attained.

Continental Consolidated Corp., supra, 67-2 BCA at 30,715. Thus, the board con­cluded that the critical path chart would show:

[T]he contractor to be behind schedule when in fact, if the appropriate time ex­tensions were incorporated into the com­puter runs, the contractor might be well ahead of schedule on the critical path.

Id. Since adequate time extensions were not granted immediately upon determining the extent of the delay, the board found that the CPM’s completion schedule was distorted and unreliable as a basis for de­nying time extensions. Id.

In J.A. Jones Constr. Co., ENG BCA Nos. 8035, 3222, 72-1 BCA ¶9261, the Army Corps of Engineers Board of Con­tract Appeals echoed its earlier concern that the CPM must reflect actual perform­ance to be a reliable basis for evaluating requests for time extensions. In J.A. Jones, the contractor sought additional compensation for repairs to a cofferdam. The contract conditioned entitlement to compensation for repairs on the contrac­tor’s performance in accordance with the progress schedule approved by the con­tracting officer. The contracting officer denied compensation, since the CPM re­vealed the project was behind schedule. The board rejected the Government’s re­liance on the original, unadjusted CPM, stating that:

The value and usefulness of the CPM * * * is dependent upon the Contracting Officer making prompt decisions when excusable delays are alleged by the con­tractor and upon the contractor promptly revising and updating the CPM chart to incorporate time extensions, whether they be tentative or finally determined, within a short time after occurrence of the delay.

J.A. Jones Constr. Co., supra, 72-1 BCA at 42,931. Since the CPM was not updated to incorporate recognized time extensions, the board found it “impossible to determine whether or not any particular work activity was or was not on schedule.” Id. Accord­ingly, the Government’s reliance on the CPM for denying the contractor additional time was improper.

Recently, in Ballenger Corp., DOT BCA Nos. 74-32, 74-32A, 74-32H, 84-1 BCA ¶ 16,973, at 84,524, the Department of Transportation Board of Contract Appeals expressed its concern that the CPM’s:

[UJsefulness as a barometer for measur­ing time extensions and delay damages is necessarily circumscribed by the extent to which it is employed in an accurate and consistent manner to comport with the events actually occurring on the job. * * * [TJhis is the single most impor­tant factor in determining the accepta­bility of the [CPM] analysis. [Emphasis added.]

At trial in the instant case, the Govern­ment took the position that Fortec was not entitled to any extensions of contract time or to any payment of extended overhead, since the CPM did not indicate that such relief was warranted. As a result, the Government failed to introduce evidence as to what, assuming Fortec was entitled to an extension of contract time and to pay­ment of extended overhead, are the appro­priate contract adjustments. Instead, the Government’s litigating position was an all or nothing position.

After considering the evidence present­ed, this Court strongly disagrees with the Government’s position that Fortec is nei­ther entitled to any extension of contract time nor entitled to any payment of extend­ed overhead. The facts are clear. The Government caused Fortec to suffer sub­stantial delay in contract performance. Specifically, the Government admits that, as a result of Government actions, Fortec was unable to timely complete the hangar floor (frame and grate specifications de­fect), the roof (design change in the roof ventilator), and one entire wall of the hang­ar building (hangar doors specifications de­fect). In addition, Fortec was required to more than double the size of the valve pit in order to correct another design defect. As a result, this Court cannot conceive of how the Government can maintain that Fortec is not entitled to any additional ex­tension of contract time and payment of extended overhead.

The Government’s reliance upon the CPM in denying Fortec’s claims is clearly misplaced. While this Court recognizes that Fortec admittedly failed to justify its claimed relief by reference to the CPM, the Court cannot overlook the fact that neither party appears to have used the CPM in evaluating contract performance. Since Fortec’s CPM was revised only once during performance, and then without regard to the effect of prior delay claims on the project not acknowledged by the Corps, its use after the fact as a gauge for measur­ing time extensions plainly is improper. Accordingly, Fortec is entitled to recover the amounts already discussed and allowed herein.

H. Liquidated Damages

As a result of Fortec’s delay in completion of the hangar project, the Corps assessed liquidated damages for the period July 7, 1979, through February 24, 1980, for a total of $31,455 (233 days at $135 per day). After carefully considering the evi­dence presented in this case, the Court believes that the Corps’ assessment of liq­uidated damages was improper.

In United States v. United Engineering and Contracting Co., 234 U.S. 236, 242, 34 S.Ct. 843, 845, 58 L.Ed. 1294 (1914), the United States Supreme Court held that:

[W]hen the contractor has agreed to do a piece of work within a given time and the parties have stipulated a fixed sum as liquidated damages not wholly dispropor­tionate to the loss for each day’s delay, in order to enforce such payment the other party must not prevent the per­formance of the contract within the stip­ulated time, and that where such is the case, and thereafter the work is complet­ed, though delayed by the fault of the contractor, the rule of the original con­tract cannot be insisted upon, and liq­uidated damages measured thereby are waived. [Emphasis added.]

To do otherwise, the Supreme Court rea­soned “would permit it [the Government] to recover damages for delay caused by its own conduct.” Id. See also William F. Klingensmith, Inc. v. United States, 731 F.2d 805, 809 (Fed.Cir.1984); Blinderman Constr. Co. v. United States, 695 F.2d 552, 559 (Fed.Cir.1982); Prestex, Inc. v. United States, 3 Cl.Ct. 373, 382 (1983); Morris Mechanical Enterprises, Inc. v. United States, 1 Cl.Ct. 50, 58, 554 F.Supp. 433, 441 (1982); Acme Process Equip. Co. v. United States, 171 Ct.Cl. 324, 366, 347 F.2d 509, 534-35 (1965); Coath & Goss, Inc. v. Unit­ed States, 101 Ct.Cl. 702, 714-15 (1944); Schmoll v. United States, 91 Ct.Cl. 1, 27-8 (1940); National Radio Co., ASBCA No. 14707, 72-2 BCA ¶ 9486; Minmar Build­ers, Inc., GSBCA No. 3430, 72-2 BCA ¶ 9599.

Here, the Corps has admitted that it con­tributed to the delay on the project. Spe­cifically, (1) the Corps admits that it de­layed Fortec in installing the roof ventila­tor; (2) the Corps admits that it erred in the design of the original valve pit; (3) the Corps acknowledges a design deficiency in the frame and grate, causing Fortec to delay work on the hangar trench; and (4) the Corps admits a delay in determining how to correct the deflection in the hangar doors. According to the above cited au­thorities, the Corps cannot assess liqui­dated damages against Fortec when the Corps contributed to the delay. Thus, even assuming that the causes of the delay were concurrent, as admitted by the Corps, rather than solely caused by the Corps as contended by Fortec, Fortec is nevertheless entitled to remission of all liquidated dam­ages.

At trial, however, the Government, while arguing that the project delay was caused by Fortec rather than by the Corps’ project modifications, failed to introduce any spe­cific evidence that the delay in project com­pletion was caused by Fortec. There was no proof that factors beyond the Corps’ control significantly delayed the project, other than unusually severe weather. In fact, after reviewing all of the evidence, this Court is unable to find any proof that any of the delay was caused by Fortec, apart from the Government’s allegations that its CPM analysis showed that Fortec was not entitled to a time extension for Government-caused delays.

In view of this Court’s decision that the Corps improperly assessed Fortec liqui­dated damages, the issue of when the hangar project was substantially completed need not be addressed. While the Corps contends that the hangar project was not substantially completed until February 24, 1980, Fortec claims that the project was substantially completed on October 1, 1979. The effect of this Court finding that sub­stantial completion occurred prior to Febru­ary 24,1980, would be to cut off the Corps’ right to assess Fortec liquidated damages from such date of substantial completion. Since this Court has decided that the Corps cannot assess Fortec any liquidated dam­ages, the date of substantial completion becomes moot.5

Accordingly, Fortec is entitled to recover $31,455, representing the amount withheld by the Corps as liquidated damages.

I. Summary

Therefore, Fortec is entitled to recover the following in addition to any amounts previously paid by the Corps or to any additional time extensions previously al­lowed by the Corps:

A. On Fortec’s claim for a time exten­sion of fifty-seven calendar days due to unusually severe weather encountered be­tween October 1, 1978, and June 23, 1979, this Court grants Fortec a one-day exten­sion of contract time.

B. On Fortec’s claim for additional com­pensation and for an extension of contract time resulting from Modification P006 (Valve Pit), Fortec is entitled to recover $5,274.97 and is entitled to a 14-day exten­sion of contract time.

C. On Fortec’s four claims resulting from Modification P009, Fortec is entitled to recover the following: (1) $82.69 for the removal of the septic tank and a one-day extension of contract time; (2) $8,739.41 for the trench frame and grate design de­fect and a 101-day extension of contract time; and (3) $4,898.61 for the hangar doors design defect and a 32-day extension of contract time. However, $646.92 will be deducted from the above amounts to re­flect the deletion of removal of electric poles and wiring. Thus, Fortec is entitled to recover $13,073.79 and is entitled to a 134-day extension of contract time.

D. On Fortec’s claim for a reduction in the amount withheld by the Corps under Modification P010 (Concrete Slabs), this Court will reduce the Government’s credit from $3,630.94, the amount originally de­ducted for the defective concrete slabs, to $2,000. Thus, Fortec is entitled to recover $1,630.94.

E. On Fortec’s claim for additional com­pensation and for an extension of contract time resulting from Modification P011 (Roof Ventilator), Fortec is entitled to re­cover $6,481.82 and is entitled to a 37-day extension of contract time.

F. On Fortec’s subcontractor claims, Fortec is not entitled to recover any com­pensation or any extension of contract time.

G. On Fortee’s claim for remission of liquidated damages assessed by the Corps, Fortec is entitled to recover $31,455, repre­senting the entire amount of liquidated damages assessed.

CONCLUSION

Accordingly, Fortec is entitled to recover $57,916.51, an extension of contract time of 186 days, interest as allowed by law, and costs of this action. Since 41 U.S.C. § 611 provides that the plaintiff is entitled to interest on the amounts awarded herein “from the date the contracting officer re­ceives the claim pursuant to section 605(a) of this title from the contractor,” entry of judgment will be deferred for thirty (30) days to allow the parties to stipulate to the dates the contracting officer received each of the plaintiff’s claims. Upon the filing of such stipulation, the clerk shall enter judg­ment accordingly. If such stipulation can­not be agreed upon by the parties, the parties shall notify the Court that furthér proceedings are necessary on this issue.

1

. Both the DIRs and the QARs provided the following classification system for each day of the job:

CLASS A No interruptions of any kind from weather conditions occurring on this or previ­ous shifts.

CLASS B Weather occurred during this shift that caused a complete stoppage of all work.

CLASS C Weather occurred during this shift that caused a partial stoppage of work.

CLASS D Weather overhead excellent or suit­able during shift. Work completely stopped due to results of previous adverse weather.

CLASS E Weather overhead excellent or suit­able during shift but work partially stopped due to previous adverse manner.

2

. The extended overhead rate originally claimed by Fortec on the disputed modifications herein was $550.48 per day. This computation, which included home office overhead, was figured ac­cording to the Eichleay formula (Eichleay Corp., ASBCA No. 5183, 60-2 BCA ¶2688) and was made during the course of the job, before the actual time of completion was known and be­fore the total revenue and expenses incurred during actual contract performance could be known. The propriety of using the Eichleay formula to compute home office overhead was acknowledged by the Corps at trial. The ex­tended home office overhead was recomputed and was stipulated by the parties that the cor­rect daily home office overhead rate was $57.88 per day. Accordingly, Fortec now seeks $318.36 per day extended overhead for each day of de­lay, including $57.88 per day for home office overhead and $260.48 per day for direct job overhead. Additionally, the contractor’s bond premiums on changes should be computed at .00525 percent, as agreed at trial, rather than at the rate of .0075 percent indicated in Fortec’s original change order estimates. In view of the evidence presented on these matters, the Court finds these figures to be reasonable and applica­ble to the plaintiff's claims herein.

3

. Fortec seeks a 32-day extension of contract time, but only 10 days of extended overhead, due to the concurrence of this delay with other delays discussed herein.

4

. The Court notes a minor discrepancy between the amount claimed by the plaintiff of $12,-­136.81 in its Findings of Fact, para. 8, and the $12,116.81 also claimed in its Findings of Fact, paras. 59 and 68. Neither of these figures, how­ever, can be computed by using the same meth­odology that was used by the plaintiff to justify its other claims herein. Since the prior method­ology has already been approved and adopted by this Court as reasonable, it will be used to compute the plaintiffs allowable claim in this instance also.

5

. While this Court need not determine the issue of when substantial completion occurred on the hangar project, it would find, after reviewing all of the evidence, that substantial completion oc­curred prior to January 1, 1980. Thus, even assuming that this Court has erred in ordering the Government to return all of the assessed liquidated damages to Fortec, the Government would still not be entitled to retain any liqui­dated damages. In its discussion above, this Court awarded Fortec a 186-day extension of contract time. Thus, Fortec would not have been liable for liquidated damages prior to Jan­uary 9, 1980. Since this Court finds that sub­stantial completion occurred prior to January 1, 1980, the Government was not entitled to assess any liquidated damages against Fortec for de­lay.

United States Court of Federal Claims.

No. 99-979 C.

GEORGE SOLLITT CONSTRUCTION CO., Plaintiff, v. The UNITED STATES, Defendant.

Feb. 23, 2005.

Timothy J. Riordan, Chicago, IL, for plain­tiff.

John S. Groat, with whom were Peter D. Keisler, Assistant Attorney General, David M. Cohen, Director, and Donald E. Kinner, Assistant Director, Washington, D.C., for de­fendant. Timothy J. Hyland, Department of the Navy, Great Lakes, IL, of counsel.

OPINION

BUSH, Judge.

This construction contract dispute is be­fore the court following a trial in August 2003. Pre- and post-trial briefs have been filed by the parties.1 An extensive record of the trial is embodied in the transcript (Tr.), joint exhibits (JE), government exhibits (GE), and Sollitt exhibits (SE). The fact witnesses for both parties2 were helpful and for the most part credible, and the expert witnesses3 contributed them insights into construction delay estimates. This opinion resolves all outstanding issues 4 in this case.

BACKGROUND

I. Factual Background

On February 27, 1995, the United States Department of the Navy (Navy) awarded George Sollitt Construction Company (Sol­litt) contract N62467-94-C-0971 for the ren­ovation of two existing buildings (Buildings 122 and 2B), an addition to Building 122 to house a “ship’s trainer,” and new construc­tion of a Pump House and two “Range Build­ings,” all at the Naval Training Center, Great Lakes, Illinois (NTC).

The contract work, valued at $15,450,000 and scheduled to begin on March 14, 1995, was to be conducted in three phases. Phase I of the contract required Sollitt to complete the renovation of Building 122, build an addi­tion to that building, (Area C, housing the ship’s trainer) and construct two Range Buddings by February 7, 1996. Phase II of the contract involved the renovation of Build­ing 2B, and also included the cost of a new Pump House for the installation of fire pro­tection pumping equipment. Phase II was to be completed by May 31,1996. Phase III of the contract required Sollitt to complete site work and landscaping, including installation of new concrete paving, curbs, sidewalks, steps, ramps and utility connections. Phase III was also to be completed by May 31, 1996.

This project was part of the Base Realign­ment and Closure (BRAC) process, mandat­ed by Congress. The buildings being con­structed or renovated at NTC would replace existing training schools at other Navy facili­ties that were scheduled for closing, or in certain eases, had already started the decom­missioning process. According to the Navy’s intended construction timeline, after Sollitt had completed the construction and renova­tion at NTC, a Navy follow-on contractor was scheduled to install specialized Navy equip­ment for the schools. This follow-on installa­tion had to be accomplished prior to a “ready for training” date set by the closing of cur­rent schools. The Navy’s follow-on contrac­tor had a window of time scheduled for this project. If construction was delayed, the Navy’s follow-on contractor would not be available to install equipment, due to other commitments, and the scheduled instruction would be interrupted and delayed. The par­ties entered into a partnering agreement, which included a provision for regular com­munication about construction problems and their solutions.

Notwithstanding the importance of timely completion, the construction phases were not completed on time.5 A variety of monetary disputes arose between the Navy and Sollitt during the course of construction, and Sollitt submitted a claim for equitable adjustment of the contract to the contracting officer on October 3, 1997. The contracting officer is­sued a final decision on December 21, 1998, and the Navy issued its final modification of the contract, Modification P00055, on April 28, 1999. On December 6, 1999, Sollitt filed its complaint in this court. An audit of Sol­litt’s claim was performed by the Defense Contract Audit Agency (DCAA audit), which found that “the claim is an acceptable basis for negotiation of a fair and reasonable set­tlement amount.” JE 231. However, no set­tlement was achieved and trial was held in August 2003.

II. Legal Issues

A. Index of Legal Issues Presented by the Counts

Sollitt’s claims have been grouped into nineteen counts. Several of these counts are further divided into subparts related to spe­cific contract work items. In this section of the opinion, the court first provides an index of the legal issues found in the contested6 counts of Sollitt’s complaint. The court then reviews the legal standards which apply to these issues. In the following section of the opinion, the court proceeds count by count (and subpart by subpart) to apply the perti­nent legal standard to each claim presented in this case and to award Sollitt damages where they are due.

1. Compensable Delay

Compensable delay is the main issue in three counts of Sollitt’s complaint: Count I asks primarily for extended overhead costs because of an allegedly justified equitable extension of the contract completion dates for Phases II and III of construction; Count II asks for increased labor costs because Phases I, II and III of construction were allegedly delayed by the Navy past the con­tract completion date and new and higher labor rates applied thereafter; and, Count IV asks for the extra costs of winter work alleg­edly caused by Navy delays.

2. Excusable Delay

Excusable Delay is the other issue set forth by plaintiff in Count I: Sollitt alleges that the Navy delayed construction and thus that the $235,200 in liquidated damages as­sessed by the Navy should be returned to Sollitt.

3. Proof of Equitable Adjustment Claims

Proof of equitable adjustment claims for work added to or deducted from the contract is the issue asserted in Counts V through XV.

4. Navy’s Discretionary Power to Grant or Deny Performance Awards

The scope of the Navy’s discretionary pow­er to grant or deny performance awards underlies Count XVIII.

5. Prompt Payment Act and Interest

Whether the Prompt Payment Act applies to provide interest on Sollitt’s claims under­lies Count XVI, a request for interest on Navy-deducted amounts from progress pay­ments on Sollitt’s monthly invoices, and Count XIX, a general request for interest on all claimed damages awarded to Sollitt in this suit. Both parties agree that the Contract Disputes Act, 41 U.S.C. §§ 601-613 (2000) (CDA) provision of interest applies to claims upon which Sollitt prevails.

B. Overview of Legal Issues

1. Compensable Delay

a. Government liability for an equita­ble adjustment may lie when the government has caused delay to the contractor’s performance

Under the standard Suspension of Work clause found in government fixed-price construction contracts, 48 C.F.R. § 52.242-14 '(2004), the United States may be liable for causing delays to contract work.7 If the contractor suffers increased costs because of government action or inaction which effec­tively suspends the contractor’s progress on contract work, this clause may provide a remedy. E.g., Merritt-Chapman & Scott Corp. v. United States, 192 Ct.Cl. 848, 429 F.2d 431, 443-44 (1970). Liability is just one element of proof that is required for a suc­cessful equitable adjustment claim, however. The Federal Circuit has stated that three elements are required to justify an equitable adjustment to a contract: “liability, causa­tion, and resultant injury.” Servidone Constr. Corp. v. United States, 931 F.2d 860, 861 (Fed.Cir.1991) (citing Wunderlich Con­tracting Co. v. United States, 173 Ct.Cl. 180, 351 F.2d 956, 968 (1965)).

b. Government liability is limited to its unreasonable delays

For the government to be found liable for an action or inaction that delays contract work, the delay in question must be unreasonable. See John A Johnson & Sons, Inc. v. United States, 180 Ct.Cl. 969, 986, 1967 WL 8810 (1967) {Johnson & Sons) (ap­proving and quoting the principle stated in the decision below that an equitable adjust­ment is warranted when “ ‘the resulting [gov­ernment-caused] interruption or delay is for an unreasonable length of time causing addi­tional expense or loss to a contractor’ ”). Only unreasonable government delays are compensable because there are “some situa­tions in which the government has a reason­able time to make changes before it becomes hable for delay.” Essex Electro Eng’rs, Inc. v. Danzig, 224 F.3d 1283, 1289 (Fed.Cir. 2000). The Suspension of Work clause em­ploys the term unreasonable to describe compensable delays:

(b) If the performance of all or any part of the work is, for an unreasonable period of time, suspended, delayed, or interrupted (1) by an act of the Contracting Officer in the administration of this contract, or (2) by the Contracting Officer’s failure to act within the time specified in this contract (or within a reasonable time if not speci­fied), an adjustment shall be made for any increase in the cost of performance of this contract (excluding profit) necessarily caused by the unreasonable suspension, delay, or interruption, and the contract modified in writing accordingly. However, no adjustment shall be made under this clause for any suspension, delay, or inter­ruption to the extent that performance would have been so suspended, delayed, or interrupted by any other cause, including the fault or negligence of the Contractor, or for which an equitable adjustment is provided for or excluded under any other term or condition of this contract.

48 C.F.R. § 52.212-12(b) (1994); 48 C.F.R. § 52.242-14(b) (2004). Whether a govern­ment-caused delay is reasonable or unreason­able depends on the particular circumstances of the case. P.R. Burke Corp. v. United States, 277 F.3d 1346, 1360 (Fed.Cir.2002). “What is a reasonable period of time for the government to do a particular act under the contract is entirely dependent upon the cir­cumstances of the particular case.” Tri-Cor, Inc. v. United States, 198 Ct.Cl. 187, 458 F.2d 112, 131 (1972) (citing Specialty Assem­bling & Packing Co. v. United States, 174 Ct.Cl. 153, 355 F.2d 554, 565 (1966)). Delays due to defective contract specifications, how­ever, are per se unreasonable. Essex Elec­tro, 224 F.3d at 1289.

c. Government action or inaction must be the sole proximate cause of the delay

For the government to be found to have caused compensable delay, the general rule is that the government must have been “the sole proximate cause of the contractor’s additional loss, and the contractor would not have been delayed for any other reason dur­ing that period.” Triax-Pacific v. Stone, 958 F.2d 351, 354 (Fed.Cir.1992) (citing Merritt-­Chapman & Scott Corp. v. United States, 208 Ct.Cl. 639, 528 F.2d 1392, 1397 (1976)). The “sole proximate cause” concept is also found in the text of the Suspension of Work clause:

However, no adjustment shall be made under this clause for any suspension, de­lay, or interruption to the extent that per­formance would have been so suspended, delayed, or interrupted by any other cause, including the fault or negligence of the Contractor, or for which an equitable ad­justment is provided for or excluded under any other term or condition of this con­tract.

48 C.F.R. § 52.212-12(b) (1994); 48 C.F.R. § 52.242-14(b) (2004). Thus, even if the gov­ernment has caused an unreasonable delay to contract work, that delay will not be compen­sable if the contractor, or some other factor not chargeable to the government, has caused a delay concurrent with the govern­ment-caused delay. In Triax-Pacific, for ex­ample, the Federal Circuit held that because the plaintiff had also caused delay to contract performance, it was not entitled to an equita­ble adjustment for government-caused delays under the Suspension of Work clause. 958 F.2d at 354.

d. The burden of proof for compensa­ble delay is borne by the contractor

When an equitable adjustment is be­ing sought for government-caused delay, “the contractor has the burden of proving the extent of the delay, that the delay was proxi­mately caused by government action, and that the delay harmed the contractor.” Wil­ner v. United States, 24 F.3d 1397, 1401 (Fed.Cir.1994) (en banc). In some cases, this burden may be met if the contractor proves four elements: the government’s delay was of unreasonable length, the government was the proximate cause of the contractor’s de­layed performance, the contractor was in­jured, and there was no concurrent delay on the part of the contractor. P.J. Dick Inc. v. Principi, 324 F.3d 1364, 1374-75 (Fed.Cir. 2003); CEMS, Inc. v. United States, 59 Fed.­Cl. 168, 230 (2003). Justification of an equi­table adjustment for delay-related damages is more complex, however, when both parties have contributed to delays affecting the pro­ject.

e. The contractor bears the burden of separating and apportioning con­current delays

The general rule barring recovery for government-caused unreasonable delay when there has been concurrent delay8 caused by the contractor does permit recovery, howev­er, when “ ‘clear apportionment’ ” of the de­lay attributable to each party has been estab­lished. E.g., T. Brown Constructors, Inc. v. Pena, 132 F.3d 724, 734 (Fed.Cir.1997) (quot­ing Coath & Goss, Inc. v. United States, 101 Ct.Cl. 702, 715, 1944 WL 3694 (1944)). Be­cause the equitable adjustment claim for compensable delay is the contractor’s claim, the burden is on the contractor to apportion the delay between the parties. E.g., William F. Klingensmith, Inc. v. United States, 731 F.2d 805, 809 (Fed.Cir.1984). “Generally, courts will deny recovery where the delays are ‘concurrent or intertwined’ and the con­tractor has not met its burden of separating its delays from those chargeable to the Gov­ernment.” Blinderman Constr. Co. v. Unit­ed States, 695 F.2d 552, 559 (Fed.Cir.1982).

f. The contractor must prove the ex­tent of the government-caused de­lay, and its increased costs, to prove its injury

To prove the “resultant injury” to the contractor from government-caused unrea­sonable delay, Servidone, 931 F.2d at 861, the contractor must prove the extent of the delay attributable to the government, see Wilner, 24 F.3d at 1401 (stating that “the contractor has the burden of proving the extent of the delay”), and that the delay caused the contractor to incur additional costs, see Johnson & Sons, 180 Ct.Cl. at 986 (identifying compensable delay as “‘causing additional expense or loss to a contractor’ ”); see also Wilner, 24 F.3d at 1401 (stating that the contractor must prove “that the delay harmed the contractor”). There are two types of additional costs alleged in Sollitt’s delay-based claims here: additional costs re­lated to the expense of performing certain contract work in winter (Count IV) and addi­tional costs caused by the delayed completion of the project past a projected completion date (Counts I and II).

g. The increased costs of winter con­struction may be compensable

Construction during winter months may be more expensive than the same work performed during temperate weather. The Court of Claims commented that some winter construction “necessarily entail[s] considera­ble unusual expense.” Owen v. United States, 44 Ct.Cl. 440, 445, 1908 WL 758 (1909). This court and its predecessor courts have sometimes found compensable delays where government-caused unreasonable de­lays pushed construction activities into the winter months, when these activities were originally scheduled for a different time of year. See, e.g., J.D. Hedin Constr. Co. v. United States, 171 Ct.Cl. 70, 347 F.2d 235, 256 (1965) (awarding monies for “additional temporary heating during the construction in the winters”); Owen, 44 Ct.Cl. at 445-46 (awarding monies to compensate for the “considerable loss” incurred due to winter work); Young dale & Sons Constr. Co. v. United States, 27 Fed.Cl. 516, 547, 557 (1993) (awarding monies for the labor inefficiencies of winter weather work); Am. Line Builders, Inc. v. United States, 26 Cl.Ct. 1155, 1211-12 (1992) (awarding monies for the additional costs for winter work). The court may deny an equitable adjustment, however, if the con­tractor fails to prove that, but for the govern­ment delay, the contract work would have been completed before the onset of the win­ter weather. See, e.g., Kit-San-Azusa, J.V. v. United States, 32 Fed.Cl. 647, 656 (1995) (denying recovery for this reason, among others).

h. The increased costs of winter work may be apportioned for concurrent delays

Apportionment of additional costs encountered by working in the winter months, when there have been concurrent delays caused by the government and the contractor, is appropriate, and may be achieved by awarding a proportion of winter-­related costs based on a mathematical formu­la derived from the amount of delay attribut­able to each party. The Court of Claims applied such a formula in Luria Bros. & Co. v. United States, 177 Ct.Cl. 676, 369 F.2d 701 (1966):

Since there was an overrun on the contract performance time of 518 days, of which 420 days have been found to be chargeable to the defendant as unreasonable, some pro-­ration of the cost to the plaintiff of such delay is indicated. Accordingly, 81 percent of the plaintiff’s cost of delay is chargeable to the defendant.

Id. at 740. In that case, the contractor was awarded monies for “protection” of exterior masonry done in the winter, including “salt, hay, tarpaulins, salamanders and labor.” Id. at 741. The court applied an eighty-one percent proration to all of the contractor’s delay-related costs, including winter protec­tion of exterior masonry and loss of labor productivity when performing winter work. Id. at 744-46. A few years later, the Court of Claims again contemplated an apportion­ment of winter construction costs, when it remanded a case to a contract appeals panel to determine “whether any part of the delay in enclosing the building was due to the fault of the Government, and if so, how much [of the additional costs for winter labor] is com­pensable under the Suspension of Work clause.” Chaney & James Constr. Co. v. United States, 190 Ct.Cl. 699, 421 F.2d 728, 739 (1970). Thus, in the case of concurrent delays that push construction work into the winter months, the contractor may receive an equitable adjustment for the increased costs of winter work, if the delays can be appor­tioned on the record before the court.

i. When establishing the extent of gov­ernment-caused delay to project completion, the contractor bears the burden of proving critical path de­lays

In order to prevail on its claims for the additional costs incurred because of the late completion of a fixed-price government construction contract, “the contractor must show that the government’s actions affected activities on the critical path9 of the contrac­tor’s performance of the contract.” Kinetic Builder’s Inc. v. Peters, 226 F.3d 1307, 1317 (Fed.Cir.2000) (citing Essex Electro, 224 F.3d at 1295-96 and Sauer Inc. v. Danzig, 224 F.3d 1340, 1345-46 (Fed.Cir.2000)). “‘The reason that the determination of the critical path is crucial to the calculation of delay damages is that only construction work on the critical path had an impact upon the time in which the project was completed.’ ” Wil­ner, 24 F.3d at 1399 n. 5 (quoting G.M. Shupe, Inc. v. United States, 5 Cl.Ct. 662, 728 (1984)). “One established way to docu­ment delay is through the use of Critical Path Method (CPM) schedules and an analy­sis of the effects, if any, of government-­caused events upon the critical path of the project.” PCL Constr. Servs., Inc. v. United States, 47 Fed.Cl. 745, 801 (2000).

A government delay which affects only those activities not on the critical path does not the delay the completion of the project. As the Claims Court stated in G.M. Shupe:

If work on the critical path was delayed, then the eventual completion date of the project was delayed. Delay involving work not on the critical path generally had no impact on the eventual completion date of the project.

5 Cl.Ct. at 728. It is the contractor’s burden to establish the critical path of the project in order to justify an equitable adjustment based on an extension of the completion date of the project. See CEMS, Inc., 59 Fed.Cl. at 233 (denying recovery because the plaintiff had not met this burden). In PCL, this court denied recovery for government-caused delay because the contractor “never provided [the government] or this court with a critical path analysis of the alleged government-caused hindrance and its effect upon the critical path of this project” and concluded that the con­tractor “did not demonstrate that its project delay was caused exclusively or even pre­dominantly by the government.” 47 Fed.Cl. at 802, 804. “[W]hen the contract utilizes CPM scheduling, the contractor must prove that the critical path of work was prolonged in order to prove a delay in project comple­tion.” Hoffman Constr. Co. of Or. v. United States, 40 Fed.Cl. 184, 197-98 (1998), aff'd in part, rev’d in part on other grounds, 178 F.3d 1313 (Fed.Cir.1999).

j. Because the critical path changes over time, critical path schedule updates are needed to analyze de­lays

The critical path of construction activities may change as a project is actually built, and “activities that were not on the original criti­cal path subsequently may be added.” Ster­ling Millwrights, Inc. v. United States, 26 Cl.Ct. 49, 75 (1992). Accurate CPM schedule updates are required during the course of construction to reflect delays and shifts in the critical path, “[I]f the CPM is to be used to evaluate delay on the project, it must be kept current and must reflect delays as they occur.” Fortec Constructors v. United States, 8 Cl.Ct. 490, 505 (1985), aff'd, 804 F.2d 141 (Fed.Cir.1986). Accurate CPM schedule updates produced during actual con­struction are better evidence of the critical path than the baseline CPM schedule provid­ed at the beginning of the project. As this court acknowledged in Blinderman Constr. Co. v. United States, 39 Fed.Cl. 529 (1997), “accurate, informed assessments of the effect of delays upon critical path activities are possible only if up-to-date CPM schedules are faithfully maintained throughout the course of construction.” Id. at 585.

k. The contractor bears the burden of apportioning concurrent critical path delays

If the evidence shows that the con­tractor, along with the government, caused concurrent delay to the critical path of a project, the contractor must apportion the delays affecting the completion of the pro­ject to be able to recover delay damages. Blinderman, 695 F.2d at 559; Avedon Corp. v. United States, 15 Cl.Ct. 648, 653 (1988). “Courts will deny recovery where the delays are concurrent and the contractor has not established its delay apart from that attrib­utable to the government.” Klingensmith, 731 F.2d at 809. Because concurrent delays which do not affect the critical path of con­tract work do not delay project completion, an accurate critical path analysis is essential to the determination of whether concurrent delays have caused delay damages related to the delayed completion of a complex con­struction project. If government-caused de­lays “did not interfere with the project’s critical path,” no costs related to delayed completion of the project are owed to the contractor. Kelso v. Kirk Bros. Mech. Con­tractors, Inc., 16 F.3d 1173, 1177 (Fed.Cir. 1994). To recover for the delayed comple­tion of the project, “[n]ot only must plaintiff disentangle its delays from those allegedly caused by the government, but the delays must have affected activities on the critical path.” Mega Constr. Co. v. United States, 29 Fed.Cl. 396, 424 (1993) (citation omitted).

l. One type of injury to the contractor from government-caused delays to the completion of a project is that of wage increases which would not have occurred during the planned time of performance

There are two types of alleged addi­tional costs caused by the delayed completion of this project past its original completion date. In Count II, the additional costs claimed by Sollitt due to the delayed comple­tion of the project are labor costs which escalated after the projected completion date of the project. This type of additional ex­pense may sometimes be recovered as delay damages. In Luria Bros., the Court of Claims awarded a proportion of the wage increases paid by the contractor after the projected completion date of the project. 177 Ct.Cl. at 743, 746. Similarly, in J.D. Hedin, the Court of Claims held that a con­tractor could recover delay damages, be­cause, “[a]s a result of the government-­caused delays heretofore described, the pro­ject was shifted into a period of higher wages for laborers.” 347 F.2d at 256. The contrac­tor must prove the extent of the delay, Wil­ner, 24 F.3d at 1401, and the amount of the harm caused by that delay, Servidone, 931 F.2d at 861, to recover on its equitable ad­justment claim for increased labor costs.

m. The contractor must prove the amount of home office and field office overhead that is related to the government-caused delay of project completion

In Count I, Sollitt claims extended home office and field office overhead related to the delayed completion of Phases II and III of the project. Extended home office overhead costs are a type of delay damages that may sometimes be recovered. As the Federal Circuit stated in West v. All State Boiler, Inc., 146 F.3d 1368 (Fed.Cir.1998) (All State Boiler):

Where the government suspends perform­ance of a contract, the contractor’s indirect costs, such as home office [overhead], often accrue beyond the amount originally allo­cated to that particular contract. These additional indirect costs may thus be “un­absorbed.” The Court of Claims consis­tently allowed a contractor to recover not only additional direct costs that accrue to a contract where completion of performance is delayed by the government, but also any unabsorbed, indirect costs that result.

Id. at 1372 (citing Fred R. Comb Co. v. United States, 103 Ct.Cl. 174, 184, 1945 WL 4033 (1945)). Extended field office overhead also may sometimes be recovered as delay damages. In Luria Bros., for example, the Court of Claims awarded a proportion of the field supervision costs incurred by the con­tractor after the projected completion date of the project. 177 Ct.Cl. at 741, 746.

n. When the parties stipulate to the daily costs of home office and field office overhead, the contractor must prove the extent of the gov­ernment-caused delay but is re­lieved of some other elements of proof of its increased costs

When the daily costs of field office and home office overhead have been stipulated,10 as is the case here, SE 2007 at 1, the award of extended overhead costs may be derived from the sum of the proven government-­caused unreasonable delays which slowed the completion of the project. In All State Boil­er, the Federal Circuit affirmed a VABCA decision that awarded delay damages derived from a finding of twenty-two days of govern­ment-caused delay and an auditor’s figure of a home office overhead daily rate of $718. 146 F.3d at 1371, 1382. The daily home office overhead costs were simply multiplied by the number of delay days which were chargeable to the government. Id. In eases of concurrent delay to the critical path, the calculation would also include apportionment of the delays to arrive at a percentage of extended overhead costs for which the gov­ernment would be liable. Luria Bros., 177 Ct.Cl. at 740, 746.11

o. When multiple delays by one party are concurrent with each other, that party’s delays must be ana­lyzed to ensure that the overall ef­fect of these multiple delays is cor­rectly attributed to that party

One final complication with concurrent de­lays is the inquiry into whether one party’s multiple delays are concurrent with each oth­er in addition to being concurrent with the other party’s delays. By necessarily focus­ing only on critical path activities that are delayed, the court makes this inquiry some­what simpler. Among all critical path de­lays, the court first examines the proven delays caused by only one party to make sure that the delay days which are concur­rent with each other are not counted more than once. As the Federal Circuit explained in Essex Electro, the “overall effect” of one party’s delays must be measured against the overall delay caused by the other party and that this is done by correctly accounting for each party’s delays which “might have been concurrent with each other.” 224 F.3d at 1296. Then, the court apportions the overall critical path concurrent delays from each party to determine the contractor’s entitle­ment to an equitable adjustment. The Fed­eral Circuit decided that this approach of comparing one party’s overall delays with the other party’s overall delays is more reliable than checking each delay from one party against a possible concurrent delay from the other party for a series of subtotal periods of entitlement. Id. To assist in the complex analysis, when multiple delays by one party are alleged to have impacted the critical path, accurate and updated CPM (critical path method) schedules are essential tools in the court’s concurrent delay analysis. As this court stated in Blindemian, “the only way to accurately assess the effect of the delays alleged ... on the ... project’s prog­ress is to contrast updated CPM schedules prepared immediately before and immedi­ately after each purported delay.” 39 Fed. Cl. at 585.

2. Excusable Delay

a. The government has the initial burden of showing late completion, and the contractor then has the burden to show that the delay was excusable

In the context of litigating liquidated damages assessed by the government in a construction contract, the government first must meet its initial burden of showing that “the contract performance requirements were not substantially completed by the con­tract completion date and that the period for which the assessment was made was proper.” PCL Constr. Servs., Inc. v. United States, 53 Fed.Cl. 479, 484 (2002) (internal quotation and citation omitted), aff'd, 96 Fed.Appx. 672 (Fed.Cir.2004). Once the government has met that burden, the burden then shifts to the contractor “to show that any delays were excusable and that it should be relieved of all or part of the assessment.” Id. (internal quotation and citation omitted). One type of excusable delay occurs when the government has delayed the project work, forcing the contractor to miss the contract completion deadline. “ ‘[W]here a contractor is prevent­ed from executing his contract according to its terms, he is relieved from the obligations of the contract [as to the time of completion] and from paying liquidated damages.’ ” Schmoll v. United States, 91 Ct.Cl. 1, 28, 1940 WL 4133 (1940) (quoting Levering & Garrigues Co. v. United States, 73 Ct.Cl. 566, 578, 1932 WL 2094 (1932)). When the al­leged excuse for the delay is action or inac­tion by the government, there is some con­troversy as to whether any government delay to contract completion, if proved, completely voids a contract’s liquidated damages provi­sion, or whether apportionment of liquidated damages is possible where there has been concurrent delay by both parties. Compare R.P. Wallace, Inc. v. United States, 63 Fed. Cl. 402, 413 (2004) (stating that the appor­tionment of liquidated damages is permissi­ble) with PCL, 53 Fed.Cl. at 486 (stating that “[t]he status of the rule against apportion­ment [of liquidated damages when the gov­ernment has contributed to the delay of con­tract performance] in the ... Federal Circuit is unsettled”).

b. When the government has caused part of the delay to project comple­tion, liquidated damages are either waived or the liquidated damages may be apportioned

The rule against apportionment of liqui­dated damages when the government has contributed to the delay in contract comple­tion was clearly stated in United States v. United Eng’g & Constructing Co., 234 U.S. 236, 49 Ct.Cl. 689, 34 S.Ct. 843, 58 L.Ed. 1294 (1914):

We think the better rule is that when the contractor has agreed to do a piece of work within a given time, and the parties have stipulated fixed sum as liquidated dam­ages, not wholly disproportionate to the loss for each day’s delay, in order to en­force such payment the other party must not prevent performance of the contract within the stipulated time; and that where such is the case, and thereafter the work is completed, though delayed by the fault of the contractor, the rule of the original contract cannot be insisted upon, and liqui­dated damages measured thereby are waived.

Id. at 242, 34 S.Ct. 843. The Court of Claims employed the rule against apportionment of liquidated damages in Acme Process Equip. Co. v. United States, 171 Ct.Cl. 324, 347 F.2d 509 (1965), rev’d on other grounds, 385 U.S. 138, 87 S.Ct. 350, 17 L.Ed.2d 249 (1966). In that case, the Court of Claims held that “the defendant merely loses its right to insist on an artificial measure of damages agreed on by the parties for the situation in which the contractor alone is responsible for the delay,” because a “plaintiff is entitled to recover on its claim for remission of liquidated damages [when] the delays on which the assessment was based were caused by the Government as well as by [the plaintiff]”. Id. at 534. The rule against apportionment has been extensively followed by this court’s predeces­sors (the United States Court of Claims and the United States Claims Court) and some boards of contract appeals, see PCL, 53 Fed.­Cl. at 485 (listing cases), but the rule has been criticized and ignored in other cases, see, e.g., R.P. Wallace, 63 Fed.Cl. at 410-13; see also PCL, 53 Fed.Cl. at 485-86 (listing eases).

The rule against apportionment of liqui­dated damages appears to have been ignored in many recent boards of contract appeals decisions. See, e.g., William F. Klingen­smith, Inc., ASBCA No. 52028, 03-1 B.C.A. (CCH) 1132, 072 (Nov. 15, 2002); Karcher Envtl., Inc., PSBCA Nos. 4085, 4093, 4282, 02-1 B.C.A. (CCH) ¶31,787, 2002 WL 246774 (Feb. 21, 2002). The Federal Circuit did not apply the rule against apportionment of liquidated damages in a recent decision, but did not comment on its nonobservance of the rule. Sauer, 224 F.3d at 1347. In Sauer, the Federal Circuit upheld an ASBCA decision which remitted only a por­tion of the assessed liquidated damages when both the contractor and the govern­ment delayed contract work completion. Id. Thus, the Sauer court approved of an appor­tionment of liquidated damages. Id. This court has also apportioned liquidated dam­ages where concurrent government and con­tractor delays affected contract completion, without commenting on the rule against ap­portionment. See Neal & Co. v. United States, 36 Fed.Cl. 600, 647, 649 (1996) (refer­ring to “over-withheld liquidated damages” and returning only a portion of these).

Recently, this court, in a thorough analysis of the possibility of apportioning liquidated damages when the government has contrib­uted to the delay of contract completion, followed Sauer and cited a number of deci­sions applying the rule from Robinson v. United States, 261 U.S. 486, 43 S.Ct. 420, 67 L.Ed. 760 (1923), which allowed the appor­tionment of liquidated damages. R.P. Wal­lace, 63 Fed.Cl. at 410-13. In light of the extensive discussions in PCL and R.P. Wal­lace of the rule against apportionment and the conflicting rule allowing apportionment of liquidated damages, and in the absence of a precedential decision resolving the apparent conflict between these two analyses of con­trolling precedent on this issue, the court here will examine the facts of this case under both the rule that forbids apportionment and the rule that permits apportionment of liqui­dated damages. Because the result in this case happens to be the same under either rule, the court here does not need to further address the status of the rule against appor­tionment of liquidated damages in this cir­cuit.

3. Proof of Equitable Adjustment Claims

a. Liability and damages are re­viewed de novo

When prosecuting an equitable ad­justment claim in this court, a “contractor has the burden of proving the fundamental facts of liability and damages de novo.” Wil­ner, 24 F.3d at 1401 (citing Servidone, 931 F.2d at 861). Under the Changes clause of this fixed-price construction contract, 48 C.F.R. § 52.243-4(d) (1994), the government is liable when changes to contract work in­creased the contractor’s costs:

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 [change] order, the Contracting Offi­cer shall make an equitable adjustment and modify the contract in writing.

Id. Because the court’s determination of the government’s liability under the Changes clause is de novo under the Contracts Dis­putes Act, 41 U.S.C. §§ 605(a), 609(a)(3) (2000), final liability decisions by the con­tracting officer are not accorded a rebuttable presumption of validity. England v. Sher­man R. Smoot Corp., 388 F.3d 844, 854 (2004) (Smoot). In Smoot, the Federal Cir­cuit also announced that it “see[s] no basis for drawing a distinction between an interim and a final decision of a contracting officer,” because “Congress made it clear in the CDA that any findings of fact by a contracting officer are not binding in any subsequent proceeding.” Id. Thus, the Federal Circuit interprets the CDA as removing any rebutta­ble presumption of validity for either interim or final liability decisions by the contracting officer. Id. The court will consider the con­tracting officer’s findings of liability as some evidence of a contemporaneous consideration of liability, but will give these interim or final decisions no deference.

b. The contractor must prove that its actual incurred costs for the changed work were reasonable

Once the contractor has proved the government’s liability for the costs of added or changed contract work, the actual costs incurred by the contractor will provide the measure of the equitable adjustment to the contract price, if those incurred costs are reasonable. Bruce Constr. Corp. v. United States, 163 Ct.Cl. 97, 324 F.2d 516, 518-19 (Ct.Cl.1963) (Bruce Construction). Al­though a contractor’s incurred costs were once considered to have a presumption of reasonableness when determining the amount of an equitable adjustment, Bruce Construction, 324 F.2d at 519, this presump­tion has been eroded by a 1987 amendment to FAR 31.201-3, codified at 48 C.F.R. § 31.201-3(a) (2004). This regulation states that “[n]o presumption of reasonableness shall be attached to the incurrence of costs by a contractor.” Id. The effect of the revi­sions to FAR 31.201-3 on the presumption of reasonableness established by Bruce Con­struction has been recognized by many au­thorities. See, e.g., Morrison Knudsen Corp. v. Fireman’s Fund Ins. Co., 175 F.3d 1221, 1244 n. 30 (10th Cir.1999) (listing cases). Some authorities go as far as to say that “[since] the revision of FAR 31.201-3 on July 30, 1987, no presumption of reasonableness is attached to the incurrence of costs by a contractor ....” Herman B. Taylor Constr. Co., GSBCA No. 12915, 96-2 B.C.A. (CCH) 1128, 547, 1996 WL 498543 (Aug. 27, 1996) (citation omitted); see also 6 Philip L. Brun­er & Patrick J. O’Connor, Bruner & O’Con­nor on Construction Law § 19:50, at 186 n. 4 (2002) (stating that the presumption of rea­sonableness established by Bruce Construc­tion “has been negated by” FAR 31.201-3).

This court, however, has not entirely dis­carded the presumption of reasonableness established by Bruce Construction. In R.P. Richards Constr. Co. v. United States, 51 Fed.Cl. 116 (2001), for example, this court asserted that “there is a presumption that [the contractor’s] actual costs paid are rea­sonable.” Id. at 125 (citing N. Slope Techni­cal Ltd. v. United States, 14 Cl.Ct. 242, 264-­65 (1988)). Yet, only a year earlier, this could; applied the reasonableness test of FAR 31.201-3, rather than the Bruce Construction presumption, when the FAR provision was applicable to the contract at issue. Info. Sys. & Networks Corp. v. United States, 48 Fed. Cl. 265 (2000) (Information Systems). The court in Information Systems noted that the proper test for reasonableness was found in FAR 31.201-3, because “FAR Part 31, Con­tract Cost Principles and Procedures, Sub-­part 31.2, Contracts With Commercial Or­ganizations, establishes a set of principles and provisions for the reimbursement of costs for contractors performing the type of contract at issue in this case.” Id. at 268. Thus, in this court, a reasonable reading of the easelaw is that no presumption of reason­ableness applies if FAR 31.201-3 governs the contract at issue, but the Bruce Construction presumption of reasonableness would apply to the contractor’s incurred costs for changed or added work if FAR 31.201-3 were not applicable.

Department of Defense contracts have for some time incorporated the Contract Cost Principles by reference, including the reason­ableness test of FAR 31.201-3, through the language of DFARS 252.243-7001, codified at 48 C.F.R. § 252.243-7001 (2004). John Ci­binic, Jr. & Ralph C. Nash, Jr., Administra­tion of Government Contracts 686 (3d edition 1995). It is undisputed that the contract in this case included DFARS 252.243-7001 (1994). Def.’s Mem. at 5. Therefore, FAR 31.201-3 provides the standard of reason­ableness for Sollitt’s costs incurred due to added or changed contract work, and no presumption of reasonableness applies:

Determining reasonableness.

(a) A cost is reasonable if, in its nature and amount, it does not exceed that which would be incurred by a prudent person in the conduct of competitive business. 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 or the contracting officer’s representative, the burden of proof shall be upon the contrac­tor to establish that such cost is reason­able.

(b) What is reasonable depends upon a variety of considerations and circum­stances, including—

(1) Whether it is the type of cost generally recognized as ordinary and necessary for the conduct of the contractor’s business or the contract performance;

(2) Generally accepted sound business practices, arm’s length bargaining, and Federal and State laws and regulations;

(3) The contractor’s responsibilities to the Government, other customers, the owners of the business, employees, and the public at large; and

(4) Any significant deviations from the contractor’s established practices.

48 C.F.R. § 31.201-3 (1994). For the pur­poses of determining the amount of equitable adjustment damages due Sollitt for changes to contract work, this contract provision clearly places the burden of proving the rea­sonableness of incurred costs on Sollitt, once those costs have been challenged by the gov­ernment. Id.

c. The government bears the burden of proving the cost of deleted con­tract work

However, when the government has deleted work and/or costs from a fixed-price construction contract, the government, not the contractor, bears the burden of proving the amount of any downward equitable ad­justment to the contract price:

[T]he Government has the burden of prov­ing how much of a downward equitable adjustment in price should be made on account of the deletion of [certain specified materials]. Just as the contractor has that task when an upward adjustment is sought under the Changes clause, so the defen­dant has the laboring oar, and bears the risk of failure of proof, when a decrease is at issue.

Nager Elec. Co. v. United States, 194 Ct.Cl. 835, 442 F.2d 936, 946 (1971). Both parties must prove their equitable adjustment claims by a preponderance of the evidence. Tele­dyne McCormick-Selph v. United States, 218 Ct.Cl. 513, 588 F.2d 808, 810 (1978).

4. Government Discretion Regarding Performance Awards on Public Contracts

a. This court has jurisdiction over disputes concerning performance awards

Government contracts in the mid-­1990s included language attempting to “[e]x­pressly exclude[ ] from the operation of the Disputes clause any disagreement by the contractor concerning the amount of the [performance] award fee,” e.g., 48 C.F.R. § 16.405(e)(3) (1994), and thus purported to exempt government decisions regarding per­formance awards from the Contract Disputes Act. These clauses, insofar as they were in­tended to defeat jurisdiction in the Court of Federal Claims or before boards of contract appeals over disputes concerning perform­ance awards, were voided by the Federal Circuit in Bumside-Ott Aviation Training Ctr. v. Dalton, 107 F.3d 854 (Fed.Cir.1997). The Federal Circuit voided the “jurisdiction defeating mechanism” of these clauses be­cause “the CDA trumps a contract provision inserted by the parties that purports to di­vest the Board of jurisdiction” over perform­ance award disputes. Id. at 858-59. Thus, this court does have jurisdiction over dis­putes concerning performance awards, not­withstanding any contract language to the contrary. Cf. Westinghouse Hanford Co. v. United States, 47 Fed.Cl. 665, 666, 667 n. 1 (2000) (citing Bumside-Ott and voiding a jurisdiction defeating provision concerning disputes over “incentive fee[s]”). However, the scope of this court’s review of perform­ance award decisions is a more nuanced is­sue.

b. If unilateral discretion is granted to the government, performance award decisions are reviewed for arbitrary or capricious abuse of that discretion

In Bumside-Ott, the Federal Cir­cuit reviewed a clause concerning perform­ance awards which stated: “ ‘The Award Fee decision is a unilateral determination made by the [Fee Determining Official or FDO] and is not subject to the “DISPUTES” Clause of the contract.’” 107 F.3d at 858 (quoting the contract at issue). The Bum-­side-Ott court held that the term “granting unilateral discretion to the FDO” was valid, but that the jurisdictional bar was void. Id. at 858. The Department of Defense recog­nized the distinction made by the Bumside-­Ott decision, and revised contracting regula­tions accordingly. Review of Award Fee De­terminations (Burnside-Ott), 64 Fed.Reg. 72,448 (Dec. 27, 1999). The regulatory change “amend[ed] FAR 16.405-2(a) by de­leting the statement that [the] award-fee de­terminations are not subject to the disputes clause of the contract and inserting a state­ment that such determinations and the meth­odology for determining award fee are unilat­eral decisions made solely at the discretion of the Government”. The current version12 of this regulation states:

The amount of the award fee to be paid is determined by the Government’s judgmen­tal evaluation of the contractor’s perform­ance in terms of the criteria stated in the contract. This determination and the methodology for determining the award fee are unilateral decisions made solely at the discretion of the Government.

48 C.F.R. § 16.405-2(a) (2004). In Burn­side-Ott, the unilateral discretion afforded the government by the above-cited contract clause limited review of the award to deter­mining whether “the discretion employed in making the decision [wa]s abused, for exam­ple, if the decision was arbitrary or capri­cious.” 107 F.3d at 860.

So, if the contract language supports a finding that unilateral discretion has been granted to the government to determine the amount of a performance award, this court is limited to reviewing whether the govern­ment’s award decision was arbitrary or capri­cious. The Bumside-Ott holding was ap­plied in a decision of this court concerning another type of discretionary fee awarded by the government to contractors — Value Engi­neering Change Proposals, or VECPs— where a contractor may receive awards for cost saving proposals. RCS Enters., Inc. v. United States, 53 Fed.Cl. 303, 309 (2002) (RCS II) (stating that this court did have jurisdiction to hear disputes over VECPs); RCS Enters., Inc. v. United States, 46 Fed. Cl. 509, 515-18 (2000) (RCS I) (discussing the implications of Bumside-Ott for this court’s review of VECP refusals by the govern­ment). In ROS II, this court held that, in a dispute over the government’s refusal to pay for a VECP, “the court could review the contracting officer’s decision to determine whether it was contrary to law or an abuse of discretion.” 53 Fed.Cl. at 309. Although the merits of the discretionary decision to accept a VECP were beyond review, this court and boards of contract appeals “ ‘have power to consider whether the agency acted illegally or followed improper procedures.’ ” Id. (quoting NI Indus., Inc. v. United States, 841 F.2d 1104, 1106 n. 1 (Fed.Cir.1988)). The scope of this court’s review of perform­ance award determinations is similar — test­ing for arbitrariness and capriciousness as measured by law and the procedures set out in the contract. This was the review de­scribed in Bumside-Ott, where the Federal Circuit found no conflict between the govern­ment’s method of determining the award fee in that case and “any part of the contract,” and held that the government did not act “arbitrarily or capriciously.” 107 F.3d at 860.

5. Applicability of Prompt Payment Act Interest

The Prompt Payment Act, 31 U.S.C. §§ 3901-3907 (2000), provides an interest penalty to businesses for “delivered item[s] of property or service [not paid for by the federal government] by the required pay­ment date.” Id. § 3902(a). However, when a payment amount is disputed, contractors are limited to the interest offered by the Contract Disputes Act, 41 U.S.C. §§ 601-613 (2000):

Relationship to other laws

(c) Except as provided in section 3904 of this title, this chapter does not require an interest penalty on a payment that is not made because of a dispute between the head of an agency and a business concern over the amount of payment or compliance with the contract. A claim related to the dispute, and interest payable for the period during which the dispute is being resolved, is subject to the Contract Disputes Act of 1978 (41 U.S.C. [§ ]601 et seq.).

31 U.S.C. § 3907. Thus, the interest penalty provided by the Prompt Payment Act is not available to a contractor for payments for which the government has disputed its liabili­ty. E.g., Gutz v. United States, 45 Fed.Cl. 291, 298 (1999).

DISCUSSION OF EACH COUNT

I. Count I: Delay-related extended over­head costs and liquidated damages

Before addressing the specific allegations in Count I, the court must address the over­all state of the evidence which was presented in support of the delay claims in this case. Sollitt was required by the contract to deliv­er a baseline construction schedule to the Navy fifteen days after the award date, and to provide monthly updates to that schedule throughout the duration of the project. See SE 2017 ¶¶ 1.3, 1.5 (Contract Specification Section 01310 including CPM schedule re­quirements); JE 10 (FAR 52.236-15 con­struction schedule requirement); GE 1015 at 4 ¶6 (March 24, 1996 Pre-Construction Meeting minutes discussing the CPM sched­ule submission requirements); Tr. at 2405-­05 (Lt. Odorizzi) (confirming that CPM schedules, both baseline and updated, were required by the contract). Phase I construc­tion had the earlier completion date, Febru­ary 7, 1996, and had one critical path of activities; Phases II and III shared the same, later completion date, May 31, 1996, and formed a second critical path of activi­ties. Agreed Facts ¶15; Sollitt Br. at 15. Thus, there were two sets of CPM baseline schedules to be updated monthly. See Tr. at 405 (Mr. Strong) (stating that “there [we]re two separate schedules for those jobs [Build­ing 122 and Building 2B]”). Sollitt was late in providing the two baseline CPM schedules which were due in mid-March 1995, Tr. at 405 (Mr. Strong) (estimating that the CPM baseline schedule for Phase I was submitted in June 1995 and that the CPM baseline schedule for Phases II and III was submit­ted in July 1995), and for some months at the beginning and end of the project Sollitt never provided monthly CPM schedule up­dates, Agreed Facts ¶¶ 24 — 25 (stating that Phase I CPM schedule updates were provid­ed July 1995 through March 1996, inclusive, and that Phases II and III CPM schedule updates were provided for August 1995 through June 1996, inclusive). The absence of CPM schedule updates for the start-up and completion phases of the project neces­sarily makes the proof of delay damages more difficult. See Tr. at 2274-76 (Mr. Tip-­ton) (acknowledging that the normal analysis of delay involves a review of CPM updates at the end of the project, which permits a mea­surement of the actual delay experienced by the impacted activities at the end of the critical path).

Even the CPM schedule updates that are in the record are not always useful. Some of the CPM schedule updates lack specific in­formation about the start and end dates of certain work activities on the critical path, because these activities were reported only as to their percentage of completion. Tr. at 2061-62 (Mr. Tipton). This is not standard industry practice, id., and makes the deter­mination of amount of delay attributable to a particular event difficult, see Tr. at 1464-67 (Mr. Zielinski) (admitting that it was impossi­ble to derive certain critical path activity dates from his CPM schedule updates). Even when specific critical path activity dates could be gleaned from the CPM sched­ule updates, these dates were inaccurate in several instances. Tr. at 1467 (Mr. Zielin­ski), 2314 (Mr. Tipton), 3162 (Mr. Dorn). These problems with the CPM schedule up­dates added to the difficulty of the delay damages analysis.

Sollitt’s expert, Mr. Tipton, relied upon both the baseline CPM schedule and the CPM schedule updates in his estimates of delays caused by the Navy to the critical path13 of the project. JE 233 at 14-16, 20-­21; JE 235 at 1. Sollitt asks the court to “credit” these analyses, see Sollitt Br. at 42 (stating that the court “should give credit to [the] Tipton analyses”), despite data prob­lems the court has noted related to the miss­ing, non-specific or inaccurate CPM schedule updates, because it alleges that the Navy “(restricted] ... Sollitt’s ability to accurate­ly update the schedules”), Sollitt Reply at 3. Sollitt expended considerable effort at trial and in its post-trial brief14 attempting to prove this allegation, but the court remains unpersuaded that the Navy, either directly or indirectly, restricted Sollitt’s ability to report delays accurately in its monthly CPM up­dates.

Sollitt first attempted to prove that the Navy forbade Sollitt from reporting delays on its CPM schedule updates until time ex­tensions for those delays had been granted. See Sollitt Reply at 3 (stating that Sollitt’s preparation of updated CPM schedules “was hampered by the Defendant’s refusal to per­mit Sollitt to include delaying events in the CPM schedules so as to accurately portray the status of the work”). There was no testimony recounting such a communication from the Navy to Sollitt. At most, Sollitt may have been constrained by contract re­quirements from adding new activities to the CPM schedule updates without authorization from the Navy. Compare Tr. at 511 (Mr. Zielinski) (“The monthly updating, which was a contractual obligation, had to deal with just the activities that we had in the original schedule. I wasn’t allowed to introduce new activities on my own.”) with Tr. at 3169 (Mr. Dorn) (“If the [delaying] work or the modifi­cation or change order was such that you did not have a preexisting activity, I would add that activity and make the appropriate rela­tionships, hit the Calculate button and look at the [projected] end date. It either moves [extends the completion date of the project] or it doesn’t.”). But there was ample testi­mony showing that delays to critical path activities already on the schedule are re­quired to be, and by industry practice are, reported on monthly CPM schedule updates. Tr. at 2070-73 (Mr. Tipton), 2750 (Lt. Odoriz­zi), 3163-70 (Mr. Dorn). Moreover, Sollitt’s expert admitted that it would be “unusual” for the government to forbid the entry of delays into a CPM schedule update, that he had never encountered such a direction, and that a reasonable and prudent contractor would have documented that direction if that direction had been received. Tr. at 2279-80. There was no credible evidence that the Navy forbade Sollitt from accurately updat­ing its CPM schedules to reflect delays.

Sollitt’s remaining argument is that the Navy responded too slowly to its requests for time extensions related to delays chargeable to the Navy, and that it was this dilatory response which rendered the monthly CPM schedule updates inaccurate. See Sollitt Br. at 43 (alleging that “[t]he Navy’s failure to timely address and acknowledge requests for time extensions made it impossible to pre­pare accurate CPM updates”). There is a fundamental flaw in the logic of this argu­ment. The granting of a time extension has no effect15 on the critical path of a project, other than to extend the completion date required by the contract. See Tr. at 3227 (Mr. Dorn, when asked whether time exten­sions affected the critical path: “No. The critical path is the critical path. It’s the longest sequence of activities from the begin­ning to the end.”); 3257 (Mr. Dorn, answer­ing a question regarding the effect of time extensions on a contractor’s estimated dura­tions for upcoming critical path activities en­tered into a CPM schedule update: “None [, because these estimates are the contractor’s good faith and best estimates of actual dura­tions required by the activities].”); see also Kora and Williams, Inc., DCCAB No. D-­839, 1994 WL 750301, n. 83 and accompany­ing text (Mar. 7, 1994) (approving the con­tractor’s insertion of excusable delay events into its CPM schedule revisions even though the government refused to acknowledge them or grant time extensions). The longest path of interrelated construction activities re­mains unchanged by a completion date time extension; it makes no difference whether the critical path is extending toward, for example, June 1 or July 1 of the following year. It is far more important to a critical path analysis to enter delays to individual construction activities on the updated CPM schedule than to enter overall time exten­sions, because these individual delays may have consequences that shift the critical path from one set of activities to another. As the Claims Court noted in Fortec, “delay encoun­tered in completion of a noncritieal item may make that item critical so that ‘every month, conceivably, the critical path would change,’ ____”8 Cl.Ct. at 505 (quoting testifying wit­ness). When delays are entered into a CPM schedule, even without deserved time exten­sions, this court can analyze the effect of the delays on the critical path of the project.

Submitting monthly updated CPM sched­ules was a contract requirement. Sollitt may not excuse its failure to enter delaying events on the CPM schedule updates because of the Navy’s alleged failure16 to grant timely ex­tensions based on those delays. See supra note 14. If Sollitt’s updated CPM schedules are of limited use in meeting its burden of establishing the critical path of the project, Sollitt is now facing the consequences of its own performance of the contract requirement to provide updated CPM schedules.

Finally, Sollitt offered two delay analyses, which may be characterized as alternative analyses. Sollitt Br. at 44 (“Tipton’s alter­nate analyses provide the Court with reason­able bases for a determination that the Navy-­caused delaying events negatively impacted the critical path and to what extent.”). The first analysis estimated delays to the critical path by inserting delaying events into Sol­litt’s baseline CPM schedules. JE 233. The second analysis estimated delays to the criti­cal path by inserting delaying events into the CPM schedule updates closest in time to those events. JE 235. Sollitt’s expert stated that he believed that the first analysis was more accurate and preferable, although he also stated that either would be rehable. Tr. at 1815-16. Sollitt asserts that the first anal­ysis is more rehable because the “Navy ... made it impossible to prepare accurate CPM updates.” Sollitt Br. at 43. The court has however, rejected the argument that the Navy prevented Sollitt from updating its CPM schedules accurately. See swpra. The court must now decide which of the two analyses, “baseline” or “updated,” is more reliable based on their methodologies and underlying data.

The better methodology for a critical path delay analysis is to use the updated CPM schedules, not the baseline schedule pre­pared before construction began. See Blind­erman, 39 Fed.Cl. at 585 (stating that “the only way to accurately assess the effect of the delays alleged ... on the ... project’s progress is to contrast updated CPM sched­ules prepared immediately before and im­mediately after each purported delay”); For­tec, 8 Cl.Ct. at 505 (stating that “if the CPM is to be used to evaluate delay on the project, it must be kept current and must reflect delays as they occur”); Sollitt Br. at 44 (admitting that Sollitt prepared the updated analysis “in recognition of the widely accept­ed practice of using the updated schedules for the analys[i]s”); Tr. at 3164 (Mr. Dorn) (stating that the “real danger if you use the baseline [is] that you’re going to achieve the wrong conclusion ..., in reality the baseline doesn’t reflect the status of the project at that time and where the delay occurred”). Despite the limitations in Sollitt’s updated CPM schedules that the court has noted, there was no evidence presented that indicat­ed that these updated CPM schedules were less accurate than the baseline CPM sched­ules. Mr. Zielinski, the author of these CPM schedule updates, gave credible testimony that he used these schedule updates to com­municate news of Sollitt’s progress on the project to the Navy and to subcontractors, Tr. at 1522, and that he believed he was inputting accurate information, Tr. at 1479. For these reasons, the court will favor Mr. Tipton’s second analysis, JE 235, the one which estimated each critical path delay by inserting a delaying event into the CPM schedule update closest in time to the alleged delaying event, over his first analysis based on the baseline CPM schedule.

A. Phase I Construction: Allegations that three circumstances chargeable to the Navy delayed project comple­tion and that assessed liquidated damages were not valid

Sollitt alleges that three17 circum­stances chargeable to the Navy delayed the completion of Phase I (Building 122 Areas A & B, Building 122 Area C and the Signalman Range Buildings) construction. The delays are alleged to have been caused by: (1) Navy post-award revisions to the ship’s trainer in Area C of Building 122; (2) changes to the electrical service for the chiller serving Building 122; and (3) changes and unfore­seen conditions encountered when construct­ing the Signalman Range Buildings. Defen­dant argues that Sollitt has not proven that these three alleged circumstances caused the delayed completion of Phase I construction. Def.’s Br. at 17-21. As additional support for its position, defendant argues that Sollitt delayed the completion of Phase I construc­tion primarily because of its tardy procure­ment of windows, a glass curtain wall and structural steel. Tr. at 29-31. For the rea­sons discussed below, the court finds that there were concurrent critical path delays chargeable to the Navy and to Sollitt; that these delays cannot be apportioned; and that defendant’s assessment of liquidated dam­ages for Phase I construction was not valid.

Sollitt contests two of the several beneficial occupancy dates (BODs) that the Navy re­ported for various buildings or exterior work at NTC, compare Sollitt Br. at 49 with SE 2015 (supporting table of data for July 6, 1999 payment to Sollitt). The court endorses the Navy’s version of BODs as best sup­ported by the evidence presented at trial, and finds that these dates mark substantial completion of portions of the contract work, see Tr. at 2905 (Lt.Odorizzi) (agreeing with Sollitt’s counsel’s statement that a beneficial occupancy date signified “a point in time when the contractor had completed the work to the point that the portion of the facility could be used”). Here in Table 1, the court reproduces pertinent data from the Navy’s 1999 payment document, all of which appears to the court to be reasonably supported by the evidence at trial. SE 2015. The table incorporates the Navy’s final modifications to the contract completion dates (CCDs) which were originally set for the three phases of construction, so as to show all of the time extensions ultimately granted by the con­tracting officer. In addition, the table shows the modified basis for the Navy’s assessment of liquidated damages (LDs), a modification which, despite Sollitt’s protests that the mod­ification was “cavalier, autocratic and capri­cious,” Sollitt Br. at 48, actually lessened the harshness of the original liquidated damages schedule by breaking the construction phases and the daily charge for liquidated damages into smaller subparts so that, as these sub-­parts of contract construction phases were completed ahead of others, at least some of the liquidated damages contemplated by the contract for that construction phase would not be assessed. It is unnecessary for the court to determine whether this unilateral modification of the liquidated damages for­mula was a valid modification of the con­tract — it is reproduced here for the limited purpose of describing how liquidated dam­ages were assessed against Sollitt.

Table 1: Beneficial Occupancy Dates and Liquidated Damages (LDs) Assessed by the Navy18

Phase LD portion CCD-final BOD Days LDs $ LD $

Late per day total

I (Bldg. 122 1/3 3/29/96 3/29/96 0 $3200 $ 0 Areas A & B)_

I (Bldg. 122 1/3 4/16/96 5/14/96 28 $3200 $ 29,867 Area C)

I (So. 1/6 3/29/96 5/6/96 38 $3200 $ 20,267 Range Bldg.)_

I (No. 1/6 3/29/96 6/11/96 74 $3200 $ 39,467 Range Bldg.)_

II (Bldg. 2/3 6/24/96 7/8/96 14 $3900 $ 36,400 2B 2nd & 3rd FI.)

II (Bldg. 1/3 6/24/96 9/4/96 72 $3900 $ 93,600 2B 1st FI.)_

III (Ext. 1/1 6/18/96 9/4/96 78 $ 200 $ 15,600 work)

Total liquidated damages assessed by Navy $235,200

The court relies on this data in its review of Sollitt’s claims.

1. Post-award revisions to the ship’s trainer in Area C of Building 122

One of the most complex portions of the contract work was building a “ship’s trainer” in Area C of Building 122. JE 233 at 24. “This ship mock-up enables the Navy to train sailors on various shipboard functions!,] in­cluding life-safety, refueling at sea, line han­dling, docking, anchor handling, and ships systems such as lighting, the helm, etc.” JE 382 at 43. Many post-award revisions were made to the ship’s trainer, JE 233 at 24, a mock-up “made of metal studs/dry­wall/sheetmetal and associated equipment,” JE 382 at 44. The court presents a brief chronology of these revisions and their im­plementation, as established at trial:

August 19, 1995 — The Navy issued Amendment 14 which contained extensive changes to electrical service and structural steel. JE 126; JE 233 at 24; JE 382 at 47.

November 20, 1995 — Sollitt replied with CX-40, a cost proposal for the changed work in Amendment 14. SE 108.

November 20, 1995 — The Navy issued Amendment 18 which contained primarily some clarification of electrical service and the addition of some lights. JE 144; JE 382 at 47; Tr. at 3212-13 (Mr. Dorn).

January 25, 1996 — The Navy issued Amendment 19 which contained minor changes to electrical service and changes to the fire alarm system. JE 153; JE 382 at 47; Tr. at 530 (Mr. Zielinski).

March 5, 1996 — The Navy issued Modifi­cation P00029 which authorized payment for changed work in Amendments 18 and 19. JE 62.

March 14, 1996 — Sollitt sent to the Navy CX-174, a cost proposal for the changed work in Amendment 19. SE 165.

March 21, 1996 — The Navy made a minor change to a line (rope) in Amendment 18, which would now be installed by the Navy, not by Sollitt. JE 167.

March 28, 1996 — Sollitt sent to the Navy CX-128, a cost proposal for the changed work in Amendment 18. SE 180.

March 29, 1996 — The Navy issued Modifi­cation P00044 which authorized payment for the changed work in Amendment 14. JE 76.

Sollitt maintains that the revisions to the ship’s trainer delayed critical activities of Phase I construction, and that fifty-nine cal­endar days of delay are chargeable to the Navy for this issue. JE 235 Issue 103; Tr. at 1760-61 (Mr. Tipton).

Amendment 14 was the biggest change to the ship’s trainer, sent to Sollitt on August 29, 1995. JE 233 at 24. The other two amendments clarified the work in Amend­ment 14 and made additional, but less exten­sive, changes than those included in Amend­ment 14. Id. The court notes that the last substantive revision to the ship’s trainer, Amendment 19, occurred on January 25, 1996. The Navy eventually extended the contract completion date for Area C from February 7, 1996 to April 16, 1996. SE 2015. The Navy accepted the ship’s trainer and Area C for occupancy on May 14, 1996. Id. The Navy charged Sollitt liquidated damages for twenty-eight days of delay for Area C. Id. The court must examine the period from August 29, 1995 through May 14, 1996 and determine whether Sollitt’s analysis of criti­cal path delays is supported by credible evi­dence of any delays chargeable to the Navy.

Certainly, an extensive revision to a com­plex construction item, which itself had to be further amended over the course of several months, would appear to be a likely cause for delayed contract work. This was indeed proved at trial. See Tr. at 522-31 (credible testimony by Mr. Zielinski). However, Sol­litt must further prove that the revisions to the ship’s trainer caused critical path delay. Hoffman, 40 Fed.Cl. at 197-98 (stating that “when the contract utilizes CPM scheduling, the contractor must prove that the critical path of work was prolonged in order to prove a delay in project completion”).

The court notes that Sollitt stopped provid­ing CPM schedule updates in March 1996. Thus, for the critical months of April and May 1996 there is no contemporaneous evi­dence of the final critical path activities for Area C.19 The parties’ experts provided the court with estimates of the critical path activ­ities for these months, which differ greatly. See JE 233 Tab 2 at 25-26; JE 235 Issue 103; JE 382 at 48-49. But both analyses made three logical ties between the ship’s trainer revisions and related follow-on activi­ties that might be delayed, and these the court holds are credible conclusions: (1) changes in structural steel would affect the erection of metal stud walls in the ship’s trainer; (2) changes in electrical work would affect finish work in the ship’s trainer; and (3) changes in large equipment to be deliv­ered would affect the ability to close in the glass curtain wall opening. See JE 233 Tab 2 at 25-26; JE 235 Issue 103; JE 382 at 48-­49. The testimony of Mr. Zielinski and Lt. Odorizzi supported these conclusions, al­though their opinions as to the delaying im­pact of the ship’s trainer revisions differed.

The court finds that the changes to struc­tural steel and the electrical revisions did delay the critical path of Area C by pushing out the completion date of Area C into May 1996. See JE 235 Issue 103 (showing stud framing in February and March 1996 and finish work activities occurring in March, April and May 1996); SE 193 (Sollitt April 18, 1996 letter giving detail of when stud framing and electrical revisions were imple­mented). These delays were unreasonable and entirely chargeable to the Navy. Allega­tions of concurrent Sollitt delays cloud the issue of the close-in of the glass curtain wall of Area C and will be discussed infra. Be­cause Mr. Tipton’s updated analysis finding critical path delays related to the ship’s trainer revisions was supported by factual evidence and was more credible than Mr. Dorn’s analysis,20 the court finds that twenty-­eight calendar days21 of Area C critical path delay, all of the delay days for which liqui­dated damages were assessed against Sollitt, are chargeable to the Navy.

2. Changes to the electrical service for the chiller serving Building 122

Sollitt claims that it encountered a Type I differing site condition when, after it had installed the chiller22 to serve Building 122, it discovered that the 600 amp electrical ser­vice its electricians had wired pursuant to the contract drawings was not sufficient to power the chiller it had installed. Sollitt argues that “the work required to change the elec­trical power to the chiller[ ] ... [caused] delay arising out of this set of circumstances and ... Solitt is entitled to an equitable extension of time of sixty-three calendar days to May 27, 1996 with respect to Phase I of the Project.” Sollitt Br. 1170. It is not necessary, however, to decide whether any delays associated with power problems for the chiller were chargeable to the Navy, because it is obvious to the court that sub­stantial completion of Phase I was not de­layed by the rewiring of the chiller’s electri­cal service.

The Navy accepted all of Building 122 for occupancy before any of the rewiring of the chiller occurred. The BOD for Areas A and B of Building 122 was March 29, 1996, and for Area C of Building 122 the BOD was May 14, 1996. SE 2015. Sollitt claims that the rewiring of the chiller occurred from May 21 through May 27, 1996, Tr. at 1774 (Mr. Tip-­ton), and these dates are supported by in­voices from Sollitt’s electrical subcontractor, JE 235 Tab 6. Because no liquidated dam­ages were assessed for Building 122 after the substantial completion date for this building of May 14, 1996, SE 2015, the alleged delay, occurring afterward, had no impact on the critical path of Phase I construction or on the assessment of liquidated damages for Build­ing 122. Mr. Tipton, when confronted with this flaw in his critical path analysis, admit­ted that he had relied on the last CPM update in March 1996 and that there were no CPM updates for April or May 1996 to pro­vide him with more accurate data concerning substantial completion of Building 122. Tr. at 1842-44. This may explain his inaccurate conclusion that the substantial completion of Building 122 occurred on May 27, 1996. JE 235 Issue 105.

No critical path delays for the rewiring of the chiller are chargeable to the Navy.

3. Changes and unforeseen condi­tions encountered when construct­ing the Signalman Range Build­ings

Sollitt claims it experienced eighteen cal­endar days of critical path delay to Phase I construction due to changes and unforeseen conditions encountered when constructing the Signalman Range Buildings [Range Buildings].23 Sollitt Br. ¶89. Although Sol­litt alleged that the Navy was responsible for several delays to the Range Buildings, in­cluding differing soil conditions and the di­version of work from the Range Buildings to the Pump House, id. at 24-27, Sollitt’s expert estimated that any critical path delays were due to revisions to the flagpoles destined to be installed in front of each of the facing buildings. See JE 233 Tab 2 at 32 (“In the final analysis, it was the flagpole that gov­erned in the overall delay to these build­ings.”); Tr. at 1786 (Mr. Tipton) (averring that “by virtue of the flag pole,” the Range Buildings were on the critical path for Phase I construction). Mr. Tipton also concluded that the flagpoles were not holding up any other construction activity except substantial completion. See Tr. at 1782 (stating that “there was no follow-on [activity delayed by the flagpoles], so the completion of the flag pole would have been substantial completion of the range buildings”).

The evidence before the court supports the following chronology concerning the flagpole revisions:

August 28,1995 — Sollitt submitted RFI 73 to the Navy, to determine the “exact loca­tion of flag poles for each booth [Range Building].” SE 65.

October 5, 1995 — The Navy responded and attached drawings of revisions to the flagpoles themselves, with detailed wind tolerances. Id.

October 25, 1995 — Sollitt secured prices for the revised flagpoles. JE 235 Issue 107.

January 19, 1996 — Sollitt submitted cost proposal CX 88, requesting $1907 for the revised flagpoles. SE 134.

March 7, 1996 — Sollitt and the Navy nego­tiated amounts for various CXs and the Navy circulated Modification P00033 which included $1899 for CX 88. However, nego­tiations failed and Modification P00033 was not signed. JE 66; SE 213 (letter from Lt. Odorizzi discussing the disagreement over time extensions that prevented Sollitt from signing P00033).

April 3,1996 — Flagpoles were delivered to NTC. JE 235 Issue 207.

April 12,1996 — Flagpoles were installed in front of the Range Buildings. Id.

April 29, 1996 — Sollitt’s flagpole supplier informed Sollitt that the flagpoles deliv­ered to NTC could not be fixed on-site to meet the Navy’s revised requirements and had to be returned and modified and that this would take at least three days. SE 201.

May 2, 1996 — The Navy informed Sollitt by letter that the flagpoles delivered to NTC and installed in front of the Range Buildings were inadequate and had to be corrected or replaced. SE 213.

May 3, 1996 — Sollitt directed its flag sup­plier to retrieve and fix the flagpoles.

May 6, 1996 — The Navy accepted the South Range Building for occupancy (ben­eficial occupancy date, or BOD). SE 2015. May 15, 1996 — Sollitt stated in a letter to the Navy that the flagpole procurement was done by Sollitt in good faith, but noted that the “wind loading[ ] criteria” specified in the October 5, 1995 RFI response con­stituted added work not yet incorporated into the contract. SE 231 at 1. The letter also indicated that the delivered flagpoles were “in accordance with” the original con­tract criteria and the approved submittals. Id. at 2. Sollitt’s letter stated that the October 5,1995 revisions were “not part of our contract responsibility.” Id. at 1.

May 20, 1996 — The Navy issued Modifica­tion P00044, a unilateral contract modifica­tion which approved $1899 for the flagpole revisions. JE 76.

June 11, 1996 — The Navy accepted the North Range Building for occupancy (ben­eficial occupancy date, or BOD). SE 2015.

April 11, 1997 — Sollitt submitted CX 243 for flagpole revisions, claiming $4965 “to complete extra work associated with flag pole revisions after installation of specified flag poles.” SE 359.

Mr. Tipton’s updated analysis of critical path delays related to the flagpole revisions, when tested against this chronology, makes no sense. His conclusion is that April 12, 1996, the date the flagpoles were installed, marked substantial completion of the Range Buildings. Tr. at 1782. April 12, 1996 does not correspond with the beneficial occupancy date of either the South Range Building or the North Range Building, which were ac­cepted on May 6 and June 11, 1996, respec­tively. And if the flagpoles were indeed markers of substantial completion for these buildings, as Mr. Tipton urges, the rejection of the installed flagpoles in May 1996 would indicate that substantial completion of the Range Buildings must have occurred subse­quent to the modification of the flagpoles, which occurred sometime after May 3, 1996, not on April 12,1996.

Another problem with Mr. Tipton’s critical path analysis for the flagpole revision is that it reports every delaying activity attributable to the Navy, such as “RFI # 73 Response [29 days]” and “Navy reviews CX 88 [39 days],” but it neglects to acknowledge a delay for “Sollitt prepares CX 88,” which would ac­count for approximately eighty-six days of delay, from October 25, 1995 to January 19, 1996. Even if the court were to accept Mr. Tipton’s contention that the flagpoles were on the critical path for completion of the Range Buildings, his analysis does not accu­rately describe the delaying activities which would be chargeable to both parties. Fur­ther discussion of Mr. Tipton’s critical path analysis of construction of the Range Build­ings is unwarranted, because his analysis of this issue lacks a logical foundation from which accurate estimates of critical path de­lays could be derived.

Sollitt has not met its burden to prove that at least some critical path delays were caused by the Navy in the construction of the Range Buildings. Therefore, no critical path delays to Phase I construction are chargeable to the Navy for this issue.

4. Procurement Delays Chargeable to Sollitt

Defendant asserts that “Sollitt’s own de­lays in the procurement of steel, windows, and glass curtain walls24 significantly im­pacted upon Sollitt’s ability to complete the project.” Def.’s Br. at 11. There was exten­sive testimony on this topic, and defendant’s expert reported that these procurement de­lays delayed the substantial completion of Building 122. JE 382 at 57 (concluding that procurement of windows, curtain walls, and steel delayed the critical path of Building 122 construction). Mr. Dorn’s analysis estimated that although the Navy was responsible for some critical path delay for Phase I construc­tion, the predominating delays were these procurement delays chargeable to Sollitt. See id. at 461 (table titled “Major Phases of Bldg 122 Area C” showing that various pro­curement delays had greater impact than a differing site condition delay). Mr. Dorn estimated that the “dry-in” of Area C of Building 122, in other words the completion of the outer shell of the building to keep out the elements, was delayed sixty-five working days, and he reported that only five of these delay days were chargeable to the Navy. Id. The court discusses each of the alleged pro­curement delays in turn.

There is no dispute that Sollitt was late in procuring windows for the project. Tr. at 3278 (Mr. Maziarka) (admitting that window procurement was delayed and that “we were not going to get the windows on time”). There is also no dispute that window pro­curement was on the critical path of the project, at least during the early months of construction. See JE 382 at 84 (Sollitt monthly report dated June 28, 1995 stating that “windows and roofing are both critical to the dry-in of Building 122”); Tr. at 2285 (Mr. Tipton) (agreeing that window procurement was on the critical path because Mr. Zielinski “had [window procurement] tied through the dry-in of the building”). But as numerous witnesses testified, Sollitt was able to work around the window procurement delay by installing temporary plastic enclosures in the window openings and heating the workspaces inside Building 122 Areas A and B. See, e.g., Tr. at 3278-79 (Mr. Maziarka) (explaining the common industry practice of using plastic on wood frames in window openings when win­dow procurement is delayed, and that heated spaces within allow for work such as drywall to proceed). Thus, because critical activities were no longer delayed, window procurement was removed from the critical path for Phase I construction. Tr. at 2286 (Mr. Tipton). Defendant did not prove that tardy window procurement delayed the critical path of Phase I construction.

Structural steel procurement for the con­struction of the new addition to Building 122 known as Area C was also delayed. Com­pare Tr. at 1496 (Mr. Zielinski) (admitting that as of September 28, 1995 steel had not been delivered to NTC) with GE 1028 (show­ing August 9, 1995 to be the scheduled date for the completion of steel procurement ac­cording to the baseline CPM schedule). De­fendant successfully established that delays to steel procurement were chargeable to Sol­litt, and that the most likely explanation for the delay was Sollitt’s choice of a non-eerti­fied shop as a structural steel supplier. Tr. at 132 (Mr. Maziarka) (stating that Sollitt accepted a bid from a steel supplier who promised to obtain the required certification, but who did not do so). Sollitt hired a testing consultant to certify the steel it was procuring, and it is the records of the testing consultant which document the late arrival of structural steel at NTC. JE 382 at 90-99.

The critical path for constructing Area C of Building 122 included a chain of follow-on activities that depended on the procurement of structural steel: erection of structural steel, masonry and installation of the curtain walls. JE 382 at 112-13 (updated July 1995 CPM schedule and updated July 1995 CPM schedule as corrected by Mr. Dorn); SE 569 (baseline CPM schedule). Mr. Dorn’s credi­ble testimony established that this chain of activities remained on the critical path for Area C of Building 122, and that the tardy steel procurement caused delays along this critical path. Tr. at 3140 (using scheduling software to show that when steel procure­ment was accurately entered into Sollitt’s updated schedules, that “this shows ... that due to the delay in steel [procurement], the project was not going to finish [on time]”). The critical nature of steel procurement was supported by several witnesses’ testimony that the erection of the structural steel was a prerequisite for masonry work, which was a prerequisite for curtain wall construction. See, e.g., Tr. at 125 (Mr. Maziarka) (“Area C of [Building] 122 was a new addition. It entailed putting up a structural steel frame, providing masonry panels. And once the masonry and the pre-cast belt course was completed, we were then able to install the curtain wall in Area C of Building 122.”); Tr. at 2191 (Mr. Tipton) (stating that “the cur­tain wall needed the masonry [completed] in order to finish the final procurement of [the curtain wall]”).

The critical path delays due to tardy steel procurement were not established in precise, calendar day terms, but the court finds that the steel procurement, originally scheduled to end August 9, 1995, was completed no earlier than September 28,1995. See JE 382 at 99 (showing that structural steel inspec­tions were conducted off-site at Sollitt’s structural steel supplier on September 28, 1995); GE 1028 (showing an originally sched­uled end date of August 9,1995 and an actual end date before October 15, 1995 for steel procurement); JE 382 at 461 (showing Au­gust 1, 1995 and early October 1995 dates, respectively, for scheduled and actual steel procurement dates). The court deems this delay to be chargeable to Sollitt, and finds that some or all of the twenty-eight calendar days of critical path delay for which liqui­dated damages were assessed to Sollitt on Area C of Building 122 were caused by the tardy steel procurement. No more precise estimate of the critical path delays for this issue is discernable from the record before the court.

The curtain wall procurement was a follow-­on activity to the steel procurement. The court was not able to determine whether delays in curtain wall procurement had an independent cause other than tardy steel procurement. Defendant’s contention that additional critical path delay could be attrib­uted to Sollitt’s tardy procurement of win­dows for the curtain wall appeared to have some merit, but the evidence to support this contention consisted mostly of Mr. Dorn’s hypotheses. Sollitt’s argument that the cur­tain wall was delayed because large equip­ment had to be brought in beforehand through the curtain wall opening also was not persuasive, because there was a dearth of documentary evidence or testimony from fact witnesses supporting this theory. Instead, the court finds that the curtain wall delays were largely a consequence of delays in structural steel procurement, and that the steel procurement delays account for most, if not all, of the delays experienced in installing the curtain wall.

5. Apportionment of Concurrent Critical Path Delays of the Parties

Sollitt proved that twenty-eight calendar days of delay to the substantial completion of Area C of Braiding 122 were chargeable to the Navy due to revisions to the ship’s train­er. But some or all of those twenty-eight days of critical path delays to Area C of Building 122 would also be chargeable to Sollitt for its concurrent delays in steel pro­curement. In addition, the delay in the sub­stantial completion of the Range Buildings was not proved to be excusable, and there­fore Sollitt would be responsible for its delay for this portion of Phase I construction, as well. These delays are intertwined and can­not be apportioned with any certainty.

For the late completion of Phase I construction, the Navy assessed liquidated damages in the amount of $29,866.67 for Area C of Building 122, $20,266.67 for the South Range Building, and $39,466.67 for the North Range Building, for a total of $89,600.25 SE 2015. The contract’s liqui­dated damages provision, however, treated all of Phase I construction as one group of activities for which delays to substantial com­pletion would trigger damages specified at a daily rate of $3200. JE 23 (Pre-Award Amendment 0002). Both the Navy’s assess­ment formula, SE 2015, and an alternative formula presented by Sollitt in its post-trial brief, Sollitt Br. at 49, are unilateral attempts to modify this contract term. The court, however, must try to apportion liquidated damages as these damages are defined by the contract term that was mutually agreed to by the parties. See Wise n United States, 249 U.S. 361, 366-67, 39 S.Ct. 303, 63 L.Ed. 647 (1919) (“The parties to the contract, with full understanding of the results of delay and before differences or interested views had arisen between them, were much more com­petent to justly determine what the amount of damage would be, an amount necessarily largely conjectural and resting in estimate, than a court or jury would be, directed to a conclusion, as either must be, after the event, by views and testimony derived from wit­nesses who would be unusual to a degree if them conclusions were not, in a measure, colored and partisan.”).

Apportionment of liquidated damages for Phase I construction, as specified by the contract at $3200 per day of late completion, would require the court to discern one criti­cal path wending through all of Building 122 and the Range Buildings toward substantial completion of Phase I construction, and to apportion concurrent delays of the parties along this critical path. There was no expert opinion presented to the court which at­tempted to trace one critical path through Phase I construction. In addition, neither expert attempted to apportion delays attrib­uted to each party along such a critical path. The court, despite a thorough consideration of critical path delays attributable to each party for discrete portions of Phase I con­struction, can do no better than these ex­perts. The court would also be required to establish a highly speculative substantial completion date for all of Phase I construc­tion, a date not fixed by agreement of the parties at that time or since. The court cannot even precisely compare and apportion delays to portions of Phase I construction, based on this record. Apportionment of liqui­dated damages based on the overall concur­rent delays to all of Phase I construction, would be even more speculative, and the record does not offer the tools to accomplish this task.

Thus, even if the court were to follow the lead of Sauer and attempt to apportion liqui­dated damages where the government was partly at fault for critical path delays, 224 F.3d at 1347, apportionment of liquidated damages in these circumstances is impossi­ble. When apportionment of critical path delays is not possible in a government con­struction project, this court cannot uphold the retention of any liquidated damages by the government. PCL, 53 Fed.Cl. at 486, 493; Karcher Envtl., Inc., PSBCA Nos. 4085, 4093, 4282, 00-1 B.C.A. (CCH) ¶ 30,843, 2000 WL 348318 (Mar. 13, 2000). Because the Navy contributed to critical path delays for Phase I construction, and because the critical path delays of the two parties cannot be apportioned with any certainty, the assess­ment of liquidated damages for Phase I con­struction was not valid and $89,600 must be returned to Sollitt.

B. Phase II and Phase III Construc­tion: Allegations that seven circum­stances chargeable to the Navy caused extended overhead costs and that assessed liquidated damages were not valid

Sollitt presents allegations that seven26 circumstances chargeable to the Navy de­layed the completion of Phase II (Building 2B and the Pump House) and Phase III (exterior site work) construction. These cir­cumstances were: (1) lead paint abatement; (2) work rebuilding the interior of two stair­wells; (3) foundation stabilization needed due to “black sand;” (4) addition of fill to level floors for terrazzo installation; (5) additional raised computer flooring; (6) cypher lock wiring; and (7) revisions to smoke dampers in ventilation duets. Defendant argues that Sollitt has not proven that these seven cir­cumstances caused the delayed completion of Phase II and Phase III construction. Defen­dant also argues that Sollitt delayed critical path activities. Testimony at trial debated whether some of the delaying work that Sol­litt claims was added post-award by the Navy was actually work that Sollitt had responsi­bility for under the contract as bid, see, e.g., Tr. at 2379-81 (Lt. Odorizzi) (describing dampers problem as Sollitt’s responsibility), 3295 (Mr. Maziarka) (describing dampers problem as the Navy’s responsibility), some­times referred to by the parties and the court as “bid-base contract work.” As dis­cussed below, the court finds that although Sollitt presented credible evidence of unrea­sonable delay to the critical path chargeable to the Navy, Sollitt has failed to apportion the delay chargeable to the Navy and to its own conduct. Because the court cannot ap­portion the critical path delay in Phase II and Phase III construction, Sollitt cannot recover on its extended overhead claim in Count I.

1. Lead abatement

Early on in the project, Sollitt encountered “loose, flaking paint on some of the remain­ing walls in [interior] areas of [Building] 2B, and ... a good part of it was established to have levels of lead that were considered haz­ardous.” Tr. at 178 (Mr. Strong). Sollitt asserts that the lead abatement it was forced to perform in response to this condition was a change to the contract imposed by a Type I differing site condition.27 Defendant asserts that either there was a patent ambiguity in the contract specifications applicable to lead abatement work and it was Sollitt’s duty to inquire regarding this ambiguity, or that the more specific contract specifications required Sollitt to perform lead abatement work be­cause these specific terms controlled over more general terms.

The parties’ experts disagreed as to whether the lead abatement work became a critical path activity. Tr. at 1789 (Mr. Tip-­ton), 3229 (Mr. Dorn). Mr. Tipton’s critical path analysis seemed more credible. Lead abatement, requiring containment of large work areas on all three floors in Building 2B, would necessarily impact the interior demoli­tion schedule of the project, Tr. at 1789, a fact that Mr. Dorn admitted, Tr. at 3229. Mr. Dorn did not address delays related to lead abatement work in his report, finding the issue to be “too speculative.” JE 382 at 1-8. At trial, Mr. Dorn testified that Sollitt’s delay in window procurement was a concur­rent and greater delay to the critical path, so the lead abatement work was “irrelevant.” Tr. at 3229. There was inadequate proof offered into evidence to support Mr. Dorn’s conclusory statement. The court finds, in­stead, that the weight of evidence supports Mr. Tipton’s estimate of twenty-three calen­dar days of critical path delay related to lead abatement work. JE 235 Issue 201. The only question is whether that delay is charge­able to the Navy.

To prove that the lead abatement was caused by a Type I differing site condi­tion, Sollitt had to establish that the contract documents represented that this lead abate­ment would not be Sollitt’s responsibility, and that Sollitt acted as a reasonably pru­dent contractor in interpreting the contract documents. See Youngdale, 27 Fed.Cl. at 528 (requiring proof of reasonable reliance by the contractor on the contract documents and that those documents showed conditions ma­terially different from those the contractor encountered). If there are conflicting provi­sions in a government contract that create an ambiguity, however, the contractor’s inter­pretation will only prevail if the ambiguity thus created was not a patent ambiguity.28 NVT Techs., Inc. v. United States, 370 F.3d 1153, 1162 (Fed.Cir.2004). If the contract contains a latent ambiguity, the contractor’s interpretation may be adopted if it is reason­able and the contractor relied upon that in­terpretation in preparing its bid. As the Federal Circuit stated in Turner Constr. Co. v. United States, 367 F.3d 1319 (Fed.Cir. 2004):

When a dispute arises as to the interpreta­tion of a contract and the contractor’s in­terpretation of the contract is reasonable, we apply the rule of contra proferentem, which requires that ambiguous or unclear terms that are subject to more than one reasonable interpretation be construed against the party who drafted the docu­ment.

Id. at 1321. The contractor must also prove that it relied on its reasonable interpretation of the contract terms. P.R. Burke, 277 F.3d at 1356 & n. 3.

The evidence presented at trial fa­vors Sollitt’s interpretation of the contract terms concerning lead abatement. The Navy had no fact or expert witnesses who testified that Sollitt was required by the contract to abate all lead paint encountered when re­modeling Building 2B. Instead, the Navy re­lies on the contracting officer’s final decision of December 21, 1998, which stated that the contract specifications applicable to lead abatement presented a patent ambiguity and that the contractor had not fulfilled its duty to inquire, Compl. Ex. 2 at 5. The court reviews first the relevant contract provisions, and then the factual scenario to which those provisions must be applied.

Contract specification 01560 states:

All known hazardous materials are indicat­ed on the drawings. If additional material that is not indicated on the drawings is encountered that may be dangerous to hu­man health upon disturbance during con­struction operations, stop that portion of the work and notify the Contracting Offi­cer immediately. Intent is to identify ma­terials such as PCB, lead paint, and friable and nonfriable asbestos.... If the material is hazardous and handling of the material is necessary to accomplish the work, the Government may issue a modification pur­suant to “FAR 52.243-4, Changes” and “FAR 52.236-2, Differing Site Conditions” or perform the work with its own re­sources.

JE 94, Part A, § 01560 H 1.6.2. But contract specification 02090, Lead-Containing Paint Removal, to which is appended amendment 0009, Removal and Disposal of Lead-Con­taining Paint, states:

All painted surfaces are suspected to con­tain lead. Remove paint in order to completely expose the substrate. Take whatever precautions are necessary to minimize damage to the underlying sub­strate. [Amendment 0009] Existing ma­terials not to remain (demolition materi­al), when demolished without separating lead-containing paint from other materi­als of construction, can be disposed of as common demolition waste without regard to lead-based paint which was tested and shown to be below the regulated values for toxic wastes under RCRA.

SE 94, § 02090 113.3. Mr. Strong testified that when reading the contract documents as a whole, including the drawings and specifi­cations, a reasonable interpretation would be that Sollitt had notice that there would be some lead-based paint encountered during demolition, that Sollitt should take precau­tions during removal of the partitions and interior walls, and that there would be no need for a separate construction activity for lead abatement because there were no known hazardous levels of lead in Building 2B. Tr. at 180-86. Sollitt saw no line item for lead abatement in the engineer’s cost estimates for this project,29 see Tr. at 184-86, 308-09 (Mr. Strong) (noting that asbestos abatement was in those cost estimates but lead abate­ment was not); JE 92 (engineer’s cost esti­mates not obviously including lead abate­ment), and Sollitt did not include any lead abatement costs in its bid for the project, Tr. at 176 (Mr. Strong), which shows that Sollitt relied on there being no lead abatement in­cluded in the contract work.

The court finds that the contract docu­ments do not present a patent ambiguity. Mr. Strong presented credible evidence that the drawings and specifications could be read to warn of low levels of lead in painted surfaces, and the bid was prepared accord­ingly. Defendant presented no testimony that would show that this is an unreasonable interpretation. The unexpected presence of high levels of lead in the paint revealed the latent ambiguity in the contract specifica­tions. Sollitt’s interpretation of those ambig­uous specifications was that a modification of the contract would be appropriate if hazard­ous levels of lead were encountered. The only witness testifying as to the reasonable­ness of that interpretation had experience in the construction industry. Because that tes­timony was uncontroverted, the court finds that Solhtt reasonably expected a contract modification for increased costs and time re­lated to lead abatement if hazardous lead paint was encountered.

Sollitt contacted the Navy in June 1995 and alerted Lt. Odorizzi that the peeling paint containing lead was an “unforeseen hazardous material.” SE 25. The Navy re­sponded that Sollitt had to “abate all painted surfaces in both buildings 2B and 122.” Sol­htt countered, again in June 1995, that it was both the level of lead, and the extent of the peeling paint, which constituted a changed condition and which merited an equitable adjustment for added costs and a time exten­sion. SE 34. A lower level of lead in the peeling paint would have been susceptible to less expensive demolition techniques. Tr. at 311 (Mr. Strong). Mr. Ice, a Guernsey em­ployee, wrote a memo in July 1995 which analyzed contract specifications and opined that “the overall intent of the Contract Docu­ments is to provide for the safe removal of lead based paint that is either on walls to be demohshed, or on surfaces that are to receive new work which require the substrate to be free of foreign substances.” JE 120. Mr. Ice concluded that “[i]t is not readily appar­ent anywhere in the Contract that all lead based paint shall be removed from the struc­ture.” Id. Mr. Ice also noted that the deteri­oration of the interior painted surfaces could have been aggravated due to a heating sys­tem failure subsequent to Sollitt’s walk-­through inspection but prior to the com­mencement of construction, and that “further negotiat[ion]” should occur because the dete­rioration was “not clearly addressed in the Contract Documents.” Id. No compromise on this issue occurred. Notwithstanding the disagreement on the scope of contract work, Solhtt performed the lead abatement to the Navy’s satisfaction. Tr. at 183-85, 320.

Sollitt encountered a differing site condi­tion when hazardous amounts of lead were found throughout Building 2B. Sollitt’s lead abatement work delayed the critical path of Phases II and III construction by twenty-­three calendar days.

2. Work rebuilding the interior of two stairwells

Solhtt encountered deteriorated ex­isting clay tiles on the walls in the two north stairwells of Building 2B. The Navy ordered Solhtt to remove the clay tiles and replace them with a different wall covering, and the parties agreed to a contract modification to pay Solhtt for the added work caused by this differing site condition. JE 233 Tab 2 at 37; JE 53 (Modification P00020). Mr. Tipton estimated that the added work delayed the critical path by five calendar days. JE 235 Issue 203. Mr. Tipton’s analysis of why wall rebuilding in two stairwells held up construc­tion of Building 2B was less than persuasive:

It is evident the added work due to [clay tile in the two north stairwells] affected the completion of drywall. As there were drywall activities in the baseline schedule for stairwells specifically, I tied the delay events to activity 935, DRYWALL 3RD FL 100%. The scheme in the basehne is to work from the third floor down to the first, so that by tying the completion of the masonry to activity 935, the drywall con­tractor would be starting the stairwells at the same time as the third floor, thereby allowing for an efficient flow of work.

[W]hen combined with the remaining activ­ities from delayed activity to substantial completion, they form a critical path.

JE 233 Tab 2 at 37. The court is unpersuad­ed that tying events together for “efficient flow of work” to create “a critical path” (emphasis added), necessarily reflects an im­pact to the critical path of Phases II and III construction. Mr. Tipton’s testimony at trial did not reflect the logic of this issue in his written report. Rather than focus on the alleged delay to drywall work on the third floor, he stated that the clay tile removal became a critical path activity because “of the additional work and the time required to accomplish that work before the contract foundation work could be completed.” Tr. at 1795. Neither of these hypotheses appeared credible to the court. A project’s critical path is composed of interrelated activities whose sequence is imposed by logical ties of precursor and successor activities — the logic of Mr. Tipton’s alleged critical path in this instance is not apparent.

Mr. Dorn’s explanation of why the stair­well work did not become part of the critical path is more plausible. His report indicated that “stairwells are the last items to be worked ... because workers usually damage the stairwells during the course of construc­tion by moving equipment/materials through the stairwells.” JE 382 at 52. While both experts agreed that drywall work was on the critical path for Building 2B, the evidence does not support Mr. Tipton’s logic tie which delayed all drywall work until the interior of the two north stairwells could be rebuilt. There could have been many causes for the delay to the drywall in Building 2B. For this reason, the court finds no delay to the critical path due to the rebuilding of the stairwell interior walls.

3. Foundation stabilization needed due to “black sand”

It is undisputed that Sollitt was enti­tled to a contract change in order to deal with the discovery of “black sand” fill behind the foundation of the south wall of Building 2B. See Tr. at 1274 (Defendant’s counsel) (“We specifically didn’t contest entitlement in our pretrial memorandum ... [t]o the black-­sand issue.”). This unsuitable fill, a fine sand that ran out from underneath the building during excavation after a loading dock was removed, prevented Sollitt from proceeding with the original plan for renovations to the foundation wall and an abutting sidewalk. Sollitt submitted RFI 60 to the Navy on August 2,1995 asking for direction on how to resolve the problem. SE 50.

Sollitt’s contention is that the Navy took so much time in developing a solution for the problem that delays in completing the foundation as redesigned eventually delayed critical path activities related to Phase II construction on Building 2B and Phase III exterior site work near Building 2B such as paving and landscaping. Defendant, on the other hand, asserts that Sollitt delayed the foundation work by not submitting a timely proposal for the changed work. Defendant’s expert also testified that the critical path did not include the changed foundation work be­cause the exterior site crew was delayed on site work at Building 122 and was not ready to work around Building 2B until after the foundation work had been completed. The court here presents the chronology of events related to this change to the contract work:

8/2/95 — Sollitt submitted RFI 60, notifying the Navy of the black sand situation, and requested direction as to how the new concrete wall could be installed without displacing the black sand material from under the existing building and undermin­ing the foundation. SE 50.

8/24/95 — A testing laboratory visited the site and later confirmed that the existing building could be undermined if the planned concrete foundation wall was con­structed according to the contract draw­ings. SE 60.

9/11/95 — Sollitt sent a letter to the Navy advising that it was still waiting for di­rection, that it would proceed with the old design as suggested by the Navy’s archi­tect despite Sollitt having offered an alter­nate design, but warned that Sollitt would not be liable for foundation problems. SE 70.

9/12-15/95 — Various inspectors and engi­neers visited the site and recommended new designs. JE 383A at 096-101.

9/14/95 — The Navy’s architect recom­mended waiting for a new design rather than proceeding with the original contract drawing design. JE 132.

9/18/95 — Sollitt sent a letter to the Navy acknowledging discussions the week before that had confirmed that the Navy would soon issue a new design and provide a sketch to Sollitt for foundation wall con­struction that would stabilize the black sand. JE 383A at 095.

All of the evidence before the court sup­ports Sollitt’s contention that the eight-week delay from early August to late September 1995 was not Sollitt’s responsibility. There was credible testimony from Lt. Odorizzi that Sollitt was stopped from proceeding, Tr. at 2882, and that the design for the changed work was not provided for weeks, Tr. at 2529. Starting in October 1995, however, the Navy does not appear to be responsible for further delay.

9/25/95 — The Navy forwarded to Sollitt its response to RFI 60 which attached a sketch that showed a new foundation wall detail together with masonry and structur­al steel changes. SE 50.

9/29/95 — Sollitt sent a letter to the Navy acknowledging the receipt of the “di­rection” and “advised that we are proceed­ing with this work to prevent additional delay.” The letter also stated that “[w]e would expect to have the proposal to com­plete this work to the ROICC office by October 11,1995.” JE 383A at 091.

10/6/95 — Sollitt sub-contractors and ven­dors prepared cost estimates/proposals for work on the newly-designed foundation wall. Id. at 037-045.

10/10/95 — Lt. Odorizzi prepared a cost analysis for the newly-designed foundation wall. Id. at 073-075, 087.

10/11/95 — Lt. Odorizzi prepared a request for funding for the change to the contract. Id. at 071-072, 087.

The Navy appears to have been ready to review a proposal from Sollitt that Sollitt predicted would be ready by October 11, 1995, and to negotiate a bilateral modification to the contract so that Sollitt would have a promise of payment. There is no record of a timely proposal from Sollitt for this work however.

11/95-1/96 — Sollitt did some excavation work and formed and poured part of the newly designed concrete foundation wall. JE 235 Issue 204 Sheet 1.

11/24/95 — The Navy sent PC 27 to Sollitt with the same sketch of foundation wall detail and requested a cost proposal “at the earliest possible date but no later than 8 December 1995.” JE 145.

There is no record of Sollitt submitting a cost proposal as requested before December 8, 1995. Winter weather hit in January and no further work occurred on the foundation wall until April 1996. Sollitt Br. H125.

3/20/96 — The Navy unilaterally issued Modification P00031 adding $30,150 for changes due to differing site conditions related to the black sand, directing Sollitt to perform the work pursuant to the same sketch provided in September 1995. JE 64.

4-5/96 — Sollitt completed construction of the new foundation wall. JE 235 Issue 204 Sheet 2.

6-7/96 — Sollitt completed masonry that covered the new foundation wall, and com­pleted the abutting sidewalk. Id.

8-9/96 — Sollitt completed Phase III exteri- or site work. Id.

9/18/96 — Sollitt submitted CX 39, a cost proposal for $123,781, for the foundation stabilization and redesigned foundation wall. SE 297.

4/28/99 — The Navy issued Modification P00055, which added $17,400 to the origi­nal $30,150 allotted to Sollitt for the changes due to the black sand foundation issue, bringing the total added to the con­tract because of this change to $47,550. JE 87 at 2.

Once the Navy had issued a sketch for revised foundation wall construction in late September, the record indicates that Sollitt neglected to respond in a timely fashion with a cost proposal. Although Sollitt’s witnesses testified that the September 25th sketch was not a complete architectural drawing with all the necessary information, Tr. at 351, 363, 399 (Mr. Strong), or an exact representation of what was eventually built, Tr. at 3306 (Mr. Maziarka), and Mr Maziarka even testified that the final resolution of the black sand issue and clear direction were not provided until March 20, 1996, see Tr. at 3273 (Mr. Maziarka) (“We did not receive final authori­zation and in essence the final solution to the black sand problem until we received P00031, which was March 20.” (emphasis added)), there is no documentary evidence that the sketch was insufficient direction for Sollitt. The estimates obtained from sub-contractors and vendors on October 6th are evidence that the work proposed was understood by Sollitt. Credible testimony from Mr. Strong estab­lished that Sollitt was able to work out de­tails that were not shown in the sketch. Tr. at 351. Sollitt began work on the newly designed foundation wall, which was substan­tially different from the old design, on No­vember 6th, Tr. at 1797 (Mr. Tipton), and continued substantial construction work on the foundation wall into January. It appears to the court that the delay from September 25th to November 6th was primarily Sollitt’s responsibility.

Once the Navy gave clear direction on September 25th, Sollitt should have proceed­ed with the work as it promised in its Sep­tember 29th letter and should have negotiat­ed the price for this work with the Navy. The only hard evidence of Sollitt moving forward with either of these tasks is the October 6th bids from Sollitt’s subcontractors. Sollitt has offered no credible evidence explaining why Sollitt did not get a cost proposal to the Navy by October 11, 1995. Nor has Sollitt shown why it started work on the newly-designed foundation wall on November 6th rather than earlier.

Sollitt attempted to explain this delay by suggesting that further refinements to the work proposed in the September 25th sketch consumed time and prevented progress. Tr. at 3306 (Mr. Maziarka). There was credible testimony that the final construction of the foundation wall does not exactly match the sketch offered on September 25th to Sollitt. Tr. at 2979 (Lt. Odorizzi). But not one docu­ment was presented to the court that sug­gested that the Navy further delayed the construction of the newly-designed founda­tion wall once the sketch was presented to Sollitt. And Sollitt’s principal witness on this issue, Mr. Strong, testified that the Septem­ber 25th sketch represented “a [typical] cross-section of what [the Navy] want[ed] as a final solution” and indicated that Sollitt was “able to do [the remainder of the design for entryways and ends of the building].” Tr. at 351. The preponderance of the evidence shows that the Navy did not further delay Sollitt’s work on the black sand issue after September 25,1995.

The reasons for Sollitt’s failure to respond with a detailed cost proposal to the sketch offered by the Navy are unclear. If Sollitt had provided a cost proposal in a timely fashion, the court could have used that evi­dence to better understand the progress, or non-progress, of the construction of the new­ly-designed foundation wall. In the absence of evidence of Sollitt’s proposed work and proposed costs as envisioned in October 1995, and lacking any contemporaneous documen­tation of negotiations between the parties at that time, it is impossible for the court to assign responsibility to the parties for the delays encountered in attempting to complete the foundation work on Building 2B before winter weather arrived. Similarly, it is im­possible for the court to determine whether the Navy-caused delay in August and Sep­tember prevented Sollitt from completing the foundation construction before winter, or whether the winter delay was avoidable if only Sollitt had begun construction on the newly-designed foundation wall in October rather than November 1995.

Because of these uncertainties, the court disagrees with Sollitt’s contention that “Sol­litt’s analysis of the delay impact resulting from the N[avy] directed installation of the foundation] wall at Building 2B based on the updated CPM schedules is a reasonable basis for determining the delay arising out of this set of [black sand] circumstances.” Sollitt Br. K131. Rather, delays were caused both by the Navy and by Sollitt and the amount of delay attributable to each party remains un­certain. It does appear that these concur­rent delays pushed the foundation stabiliza­tion problem onto the critical path for Phase II and Phase III construction, JE 235 Issue 204, despite defendant’s expert’s disagree­ment with this conclusion, Tr. at 3234-35 (Mr. Dorn). The evidence provided to the court was not sufficient to apportion these delays between the Navy and Sollitt, howev­er, and therefore the court cannot award Sollitt an equitable extension of time for this issue.

Nonetheless, the Navy’s unreasonable de­lay in designing a changed south foundation wall for Building 2B to respond to a differing site condition does affect the Navy’s right to assess liquidated damages for the delayed completion of Phases II and III construction. See infra.

4. Need for fill to level floors for terrazzo installation

Sollitt contracted to put a terrazzo30 floor in the corridors of all three floors of Building 2B. Tr. at 571 (Mr. Zielinski). The subfloors were discovered to be not level within the tolerance required for this type of installation. Tr. at 573 (Mr. Zielinski). Sol­litt alerted the Navy and was directed to survey the subfloors and to estimate the amount of fill needed to bring the subfloors within tolerance. Id. Sollitt was paid for the addition of fill to the corridor subfloors pro­posed in its cost estimates, once revisions were made after the work was completed. Tr. at 580 (Mr. Zielinski). There was no evidence that Sollitt was not entitled to this payment for work added to the contract. The dispute here is whether Sollitt is entitled to a time extension justified by delays to the critical path caused by the need to add fill to the corridor subfloors, and if so, how much of a delay is justified.

Mr. Tipton estimated that adding fill to the corridor subfloors produced fifty calendar days of delay to the critical path of Phases II and III construction. JE 235 Issue 205. Mr. Dorn conceded that adding fill to the corridor subfloors did impact the critical path, but he estimated only five work days of delay to the critical path.31 Tr. at 3240. The court will review first the expert estimates, and then consider other evidence in the rec­ord.

Mr. Tipton inserted the delaying event of adding fill to the corridor subfloors into the March 1996 CPM schedule update. JE 235 at 2. He appears to have added three types of activities related to this work, “survey,” “quantify” and “fill,” which began in late February 1996. Id. Issue 205. The work proceeded from top to bottom of the building, with the last of these activities ending in late May 1996. Id. For just the “fill” activities, Mr. Tipton estimated ten days for the third floor, twenty-one days for the second floor, and ten days for the first floor. Id.

According to Mr. Tipton, the terrazzo work began, again proceeding from top to bottom of the building, in mid-March 1996. Id. From that point, Mr. Tipton’s analysis shows that there was at least some concurrency between the adding of fill activities on the lower floors and the terrazzo work on the upper floors. Id. It is difficult to determine from Mr. Tipton’s report how and to what extent the fill activities continued to delay the critical path activities once terrazzo work had begun on the third floor.32 The initial delay to starting the terrazzo floor installa­tion, a delay of about three weeks, or twenty-­one calendar days, is obvious to the court from Mr. Tipton’s data.

Mr. Dorn reviewed the April 1996 CPM schedule update and concluded that “this added fill was responsible for a 5-day impact to the project critical path.” JE 382 at 53. When discussing the April 1996 update, Mr. Dorn reported that this update increased the projected duration of the critical path and now “included the alleged addition [of] fill changed condition (5 [work] days per floor).” Id. at 39. Mr. Dorn’s report acknowledges that terrazzo floor installation hampers or halts finish trades working in that corridor. See id. (“Coordination of rough-in and finish type work with the terrazzo work in the corridors would be difficult, at best.”). The April 1996 CPM schedule update added ap­proximately twenty-one calendar days to the critical path, according to Mr. Dorn, and it attributed those delays to two causes, electri­cal work delays and terrazzo floor delays. Id. Although Mr. Dorn’s analysis of the data in the April 1996 CPM schedule update may be accurate, his estimate of five work days of delay to the critical path does not appear to reflect the full scope of the fill work.

At trial, the factual evidence confirmed that there was delay to the critical path but exact mathematical certainty remained elu­sive. Mr Zielinski testified that the terrazzo work was originally scheduled to begin on March 4, 1996, but that the need for fill delayed the start of terrazzo work until April 4, 1996, or thirty calendar days later, Tr. at 576, a date which conflicts with Mr. Tipton’s mid-March date. JE 235 Issue 205. Mr. Zielinski also testified that the terrazzo sub­contractor came on site “very close to the original [baseline schedule] date [in the first week of March 1996].” Tr. at 1004. Lt. Odorizzi testified that “a lot of fill” was re­quired to level the corridor floors. Tr. at 2888. Sollitt requested payment for 710 square feet of fill for the third floor, SE 236; 1071 square feet of fill for the second floor, SE 237; and 1989 square feet of fill for the first floor, SE 274. Sollitt also provided a narrative justification for a requested time extension on June 19, 1996, SE 260, which estimated ten days of delay per floor due to the required addition of fill for the terrazzo installation, id. at 6-7.33

The court finds that the required addition of fill for the terrazzo installation delayed the critical path of Phases II and III construc­tion by twenty-one calendar days. This fig­ure, although not without some degree of uncertainty, reflects the estimate in the April 1996 CPM schedule update for the fill activi­ties for three floors of Building 2B, and reflects the delay affecting the start of the terrazzo installation, as reported by Mr. Tip-­ton. Further delays due to the addition of fill might have been experienced as terrazzo installation continued, but these were not established by the evidence before the court. Twenty-one calendar days of critical path delay due to addition of fill for the terrazzo installation are chargeable to the Navy.

5. Additional raised computer floor­ing

On September 5, 1995, the Navy is­sued a proposed change to the contract and requested that Sollitt provide a cost proposal to construct additional access flooring34 in some second floor classrooms in Building 2B. JE 233 Tab 13. The Navy requested that the cost proposal be returned to the Navy “at the earliest possible date but no later than 19 September, 1995.” Id. Clarification of the scope of work was requested by Sollitt in two requests for information it sent to the Navy in October 1995. Id. The Navy responded to both of these requests by October 31, 1995, and in particular responded that classrooms 205 and 207 would have access flooring in­stead of regular flooring. Id. Sollitt’s base­line schedule showed that the original access flooring would have been installed in Febru­ary/March 1996. Id. Tab 2 at 45. Mr. Tip-­ton estimates that the addition of more rooms with access flooring caused sixty-five days of delay to the critical path of Phases II and III construction. JE 235.

Although the addition of access flooring35 increased the amount of contract work on the second floor of Building 2B, there was no convincing evidence of delay to the critical path. Even if Sollitt had proved that there was delay to the critical path, the court finds that this delay would not be chargeable to the Navy.

Discerning the critical path for the months of June 1996 through August 1996, the al­leged period of delay at issue with the addi­tional access flooring, is difficult because af­ter June 27, 1996, Sollitt provided no more CPM schedule updates. Tr. at 3250-51 (Mr. Dorn); JE 382 at 54. Mr. Tipton’s critical path analysis was made without the benefit of updated CPM schedules for July and Au­gust 1996. Tr. at 2106-07 (Mr. Tipton). When cross-examined on the topic of how, in the absence of CPM schedule updates, he was sure that a “delaying” event such as the access flooring impacted activities on the critical path that necessarily could not be performed until the additional flooring was completed, Mr. Tipton responded:

We went through the daily logs, and as best we could try to go down and identify work activities that would support the fact that work was going on relative to the delaying events and then look to see that it was consistent with-well, with other work that would be going on at that time frame.

Tr. at 2120-21. But when he was asked at trial to identify even one activity in those daily logs for the period of August 10 through August 23, 1996 that clearly indicat­ed that follow-on work on the second floor, delayed by the addition of access flooring, was taking place, Mr. Tipton was unable to do so. Tr. at 2105-21. Sollitt did not estab­lish that the addition of access flooring on the second floor of Building 2B impacted the critical path.

Most of the delay that Sollitt attributed to the additional access flooring was not due to the work itself, but to an alleged delay in the Navy’s delivery of contract modifications to Sollitt. See Sollitt Br. at 65 (alleging sixty-­five days of critical path delay “[d]ue to the long lead time required to order material and the late release of the change order”); JE 235 Issue 206 (showing more critical path delay due to the Navy’s issuance of change orders than due to two work activities relat­ed to added access flooring). But Mr. Tip-­ton’s analysis fails to charge Sollitt with the most significant delay in this modification to contract work, the delay from October 31, 1995 through February 6, 1996, when Sollitt finally submitted its cost proposal for this work to the Navy. See JE 233 Tab 13 (Navy’s response to RFI 108 dated October 31,1995); JE 233 Tab 13 (Solhtt’s CX 75 dated Febru­ary 6, 1996). This delay of over three months is unexplained. The Navy responded one month later on March 5,1996 with Modi­fication P00029 confirming payment for the additional access flooring, JE 63, and later increased this payment in Modification P00050 on July 2, 1996, JE 82. Even if Sollitt had proved a delay to the critical path due to the additional access flooring, most of the delay it alleges would have been due to its own delayed cost proposal in response to the Navy’s proposed change issued on Sep­tember 5,1995.

No delays to the critical path of Phases II and III construction for additional access flooring were proved to be chargeable to the Navy.

6. Changes to cypher lock installa­tion

Mr. Tipton estimates that the critical path of Phases II and III construction was delayed twenty-four days by changes the Navy ordered in the installation of cypher locks36 on doors to some of the rooms on the second and third floors of Building 2B. JE 235 Issue 208; JE 382 at 55; JE 279 at A405-A406 (door schedule included in con­tract drawings). Mr. Tipton did not suggest that any other work activities were delayed by the cypher locks, but that cypher lock installation was one of the final construction activities and this installation became a criti­cal path activity as it delayed substantial completion of the project. Tr. at 1812-13. Mr. Tipton’s expert report showed July 10, 1996 as the approximate completion date of the cypher lock installation. JE 235 Issue 208; Tr. at 1812. Sollitt was never paid its proposed costs for changes to the cypher lock installation. Tr. at 934 (Mr. Zielinski).

Lt. Odorizzi’s testimony on the cypher locks issue asserted that no contract work was added and that the Navy’s direction regarding installation was clear. Tr. at 2635-40. The court finds, as discussed below in Count XV Section M, that there was no net increase in contract work for the cypher lock installation, but nevertheless finds that Sollitt was delayed by a series of conflicting and confusing directions found in the con­tract drawings and ongoing communications with the Navy.

Sollitt’s contention that the Navy deleted wiring for cypher locks in pre-award Amend­ment 0004 is ill-founded. See Sollitt Br. 11155 (“Amendment No. 0004 ... deleted cypher lock wiring----”). Cypher locks re­quire electricity to operate. Tr. at 1118 (Mr. Zielinski). The deletion of some language referencing cypher locks wiring from the contract drawings was an attempt by the Navy to clarify a confusing instruction con­cerning that wiring, not to delete the wiring itself. Tr. at 2640 (Lt. Odorizzi). Sollitt’s interpretation of that deletion is that Sollitt was required by the contract to install thir­teen unwired and useless cypher locks. That interpretation is not reasonable. All install­ed cypher locks would require wiring as part of the contract as bid; thus, wiring for cy­pher locks was not added work.

There were, however, other problems with the Navy’s directions on how and where to install the cypher locks that did cause delay to Sollitt’s performance of that contract work. On the contract drawings, a signifi­cant but not obvious error was made in the door schedule (a table of information listing all doors and referencing the corresponding hardware specifications for each) which flagged door 255C for a cypher lock when it should have flagged the next door on the list, door 256. JE 279 at A406; JE 192 (Lt. Odorizzi’s June 4, 1996 letter noting error). None of the junction boxes on the contract drawings, the source of power for the cypher locks, originally included an outlet into which the plug from the cypher lock could be in­serted, so these junction boxes all had to be slightly modified. SE 232. On April 19, 1996, the Navy’s engineers supplied a draw­ing to clarify how the cypher locks should be wired, and where the individual components should be installed in the door frame and nearby wall. SE 232. Three cypher locks were eventually deleted from the contract because Navy personnel who were to be the end-users of the rooms did not wish to secure their doors with cypher locks. JE 192. The deletions and modifications of the work do not appear to have caused a net increase in labor or other costs to Sollitt. However, there was ample evidence that discussions of these clarifications to contract work occurred both in person during partnering sessions, as well as in writing; that clarification contin­ued from April 10, 1996 through June 4, 1996; and that delays to the final work on Building 2B resulted from these discussions. SE 187; JE 192; Tr. at 590-99 (Mr. Zielin­ski).

The delay in cypher lock installation is chargeable to the Navy because there were minor, latent defects in the contract drawings and because deletions and modifications to the plans for installation continued during this delay period. Mr. Tipton’s estimate of twenty-four calendar days of delay to the critical path is reasonable and is not contra­dicted by Mr. Dorn’s chronology of the clari­fication discussions that occurred during April, May and June 1996. JE 382 at 55. Twenty-four calendar days of delay to the critical path of Phases II and III construc­tion are chargeable to the Navy for the changes in the cypher lock installation.

7. Revisions to dampers in ventila­tion ducts

Sollitt alleges that critical path de­lays related to revisions in the smoke dam­pers 37 in ventilation duets throughout Build­ing 2B are chargeable to the Navy. Mr. Tipton estimated thirty-nine calendar days of critical path delays in June and July of 1996 related to the smoke damper revisions issue. JE 235 Issue 209. However, as discussed below, the revisions made to the smoke dam­pers resulted from contradictions in the con­tract drawings and specifications, a situation into which Sollitt should have inquired before commencing work.

Mr. Zielinski testified that Sollitt originally installed over thirty motorized smoke dam­pers throughout Building 2B. Tr. at 1034. The specifications and mechanical drawings indicated that the smoke dampers needed to be equipped with “actuators,” which would close the smoke dampers in case of smoke, and automatically reset to open the dampers when smoke had cleared. GE 1019 112.5.2; JE 279 (2B Drawings) at M303. However, no circuitry for these smoke damper actuators was shown on the electrical drawings for Building 2B, and no smoke damper connec­tions were mentioned in the fire alarm sys­tem specifications. SE 254. Thus, the smoke dampers Sollitt installed had no power to operate and would not close in case of smoke. Mr. Maziarka admitted that he could recall no other construction project where Sollitt had installed inoperable smoke dam­pers. Tr. at 3295. After installing the inop­erable smoke dampers, Sollitt proceeded with finish work and covered the ventilation ducts with drywall. Tr. at 2557 (Lt. Odorizzi). Sollitt did not alert the Navy to this problem until June 10, 1996, ten days after the origi­nal scheduled completion date for Building 2B. SE 254. The fix for the smoke dampers problem was provided by the Navy within nine days. Id. According to Mr. Tipton, critical path activities related to this issue continued into July 1996. JE 235 Issue 209.

There was obviously a conflict between the requirement for operable smoke dampers and the absence of any connection of these smoke dampers to the fire alarm system.38 As Mr. Zielinski testified, Sollitt eventually perceived that the smoke dampers installa­tion would not work and required substantial correction:

The only problem was that by these defec­tive drawings that you [the Navy] gave me, there was no power to operate them, no sequence even if they had power. And later on, you guys created the sequence of operation which included stuff that wasn’t in the specifications at all, not just the electrical but that further requirement of connecting them to the magnetically-­held[-]open doors and fire alarm system.

Tr. at 1040. Not only had Sollitt not in­quired before submitting its bid into the in­consistent contract terms which required smoke dampers but did not provide the wir­ing to close them in case of smoke, it install­ed inoperable smoke dampers and then cov­ered them up with drywall. Sollitt did not fulfill its duty to inquire into contradictory terms in its construction contract. See Triax Pacific, Inc. v. West, 130 F.3d 1469, 1475 (Fed.Cir.1997) (stating that because “the con­tradictory provisions in the contract were so apparent ... [the plaintiff] had a duty to ask for clarification before bidding”); Gelco Builders & Burjay Constr. Corp. v. United States, 177 Ct.Cl. 1025, 369 F.2d 992, 998-99 (1966) (holding that apparent conflicts or ir­regularities in contract specifications trigger a duty for the contractor to ask for clarifica­tion). A reasonable contractor would not have read the contract to have required the installation of inoperable smoke dampers. A contractor’s unreasonable interpretation of contract specifications does not create a la­tent ambiguity that would be interpreted in favor of the contractor. See Cmty. Heating & Plumbing Co. v. Kelso, 987 F.2d 1575, 1578-79 & n. 6 (Fed.Cir.1993) (rejecting eon-­tractor’s claim based on an alleged latent ambiguity in contract terms because the con­tractor’s interpretation of contract provisions was unreasonable).

Because work on the smoke dampers in­stallation continued into July 1996, the court finds that contract completion was delayed by this issue, as Sollitt has alleged. But the critical path delays related to the corrective work on the smoke dampers could have been avoided if Sollitt had fulfilled its duty to inquire into the contradictory contract terms before bidding or at least earlier in the con­struction schedule. Therefore, no critical path delays are chargeable to the Navy for the smoke dampers revisions.

8. Apportioning Critical Path Delays for Concurrent Delays of the Par­ties

Sollitt’s Phases II and III construc­tion delay claim is founded on seven separate allegedly delaying circumstances, discussed above. Sollitt’s expert explained that the individual critical path delays related to these circumstances are not additive, or in other words, that the calendar days of delay attrib­uted to each circumstance do not add up to a grand total, but rather, that these individual delays may be viewed as concurrent to the extent that the longest individual alleged de­lay is the maximum critical path delay that can be proved. Tr. at 1824 (Mr. Tipton) (explaining that the alleged delays were not “additive” and that Sollitt would be entitled at most to damages based on the duration of the longest single delay alleged); see also Sollitt Br. Ex. 2 (showing temporal overlap among the alleged delays chargeable to the Navy). The length of the single longest al­leged critical path delay for Phases II and III construction, based on the updated analy­sis, was sixty-five calendar days for added access flooring.39 JE 235 Issue 206. Al­though the court has little confidence in the analytical framework provided by Sollitt for its delay claim, particularly because it offers little specificity regarding the dates when construction activities actually occurred and little chance of precisely measuring overlaps between different but concurrent alleged critical path delays, the court is forced to adopt it for the limited purpose of setting an outer limit, sixty-five calendar days, to the government-caused delays that Sollitt is claiming for Phases II and III construction.

Mr. Tipton’s testimony on the issue of concurrency of delays in this case explained that each delay, in his opinion, was indepen­dently sufficient to cause some delay to the critical path. See Tr. at 1824 (“[Delays would be considered concurrent] [s]imply [means] that the delay in one would not have effect with a delay in another area. In other words, if one instance had not happened, [and] another instance had, it still would have had that impact on the schedule.”). But Mr. Tipton never explained the temporal relation­ships between the concurrent delays in a way that would assist the court in detecting tem­poral overlaps between these delays. The parties were unable to agree upon the mean­ing of a joint stipulation agreed to before trial, and therefore withdrew the stipulation, Tr. at 2234, concerning the import of Mr. Tipton’s statement that, except for two of the seven individual delays described in his delay analysis, “the [five] delays would be consid­ered concurrent so that each would have resulted in delays indicated to the contract completion date with or without other delay­ing events in the above list,” JE 233 Tab 1. Since concurrency has both a temporal and a causal aspect, see supra note 8, Mr. Tipton’s analysis of concurrency of delays in this case is incomplete. In addition, Mr. Tipton, un­like the court, found no delays chargeable to Sollitt in Phases II and III construction, JE 235 at 4, which limits the usefulness of his delay analysis and makes his overall findings less credible. See Gulf Contracting, Inc., ASBCA Nos. 30195, 32839, 33867, 89-2 B.C.A. (CCH) ¶21,812, 1989 WL 46855 (Mar. 16, 1989) (rejecting a delay analysis because it “systematically excluded all delays and dis­ruptions except those allegedly caused by the Government,” “was inherently biased,” and concluding that “[t]o be credible, a contrac­tor’s CPM analysis ought to take into ac­count, and give appropriate credit for all of the delays which were alleged to have occurred”), aff'd on reconsid., 90-1 B.C.A. (CCH) 1122, 393, 1989 WL 127734 (Sept. 20, 1989), aff'd, 23 Cl.Ct. 525 (1991), aff'd, 972 F.2d 1353 (Fed.Cir.) (table), cert. denied, 506 U.S. 999, 113 S.Ct. 598, 121 L.Ed.2d 535 (1992).

Because the court found that among the seven circumstances concurrent delays should be charged to Sollitt and to the Navy, the court must now ascertain whether these concurrent delays, upon the record before the court, can be apportioned among the parties. To review, twenty-three calendar days for lead abatement, twenty-one calendar days for terrazzo floor fill and twenty-four calendar days for cypher locks are delays to the critical path chargeable to the Navy. None of these delaying events appear to overlap in time, because the lead abatement was completed in September 1995, the ter­razzo floor fill delay started in March 1996 and was over by the first week of April 1996, and the delay in the cypher locks installation did not begin until April 10, 1996. If these were the only critical path delays to consider, the total of these delays, sixty-eight calendar days, would support Sollitt’s delay claim of sixty-five calendar days.

But Sollitt, too, was responsible for critical path delays, and these delays were concur­rent with delays chargeable to the Navy. The black sand issue delays were caused by both Sollitt and the Navy, and were so intertwined and uncertain as to preclude a precise appor­tionment of those delays. The longest al­leged delay, for added access flooring, was also caused by both Sollitt and the Navy, and that delay could not be apportioned with any certainty between the parties. And any criti­cal path delays due to the revisions to the smoke dampers installation would be entirely chargeable to Sollitt. The quantity of delay days attributable to any of these issues was not established, but the court notes that Sol­litt claimed fifty-seven delay days for the black sand issue and sixty-five days for add­ed access flooring, and that Sollitt itself is responsible for some portion of those critical path delays. Sollitt also claimed thirty-nine delay days due to the smoke dampers instal­lation, and all of the delay related to this issue is chargeable to Sollitt.

There appears to be little or no temporal overlap among the Sollitt-caused critical path delays. The black sand issue delays caused by Sollitt occurred primarily in October 1995. The Sollitt-caused delays related to added access flooring occurred between October 31, 1995 and February 6, 1996. The delays re­lated to the smoke damper installation oc­curred during June and July 1996, and these were all caused by Sollitt. Because a sub­stantial and non-overlapping amount of criti­cal path delays caused by Sollitt affected Phases II and III construction, and because the court is unable to fairly apportion the delays to Phases II and III construction between the parties, Sollitt’s delay claim for Count I fails.

9. Validity of Liquidated Damages

For the late completion of Phases II and III construction, the Navy assessed liq­uidated damages in the amount of $36,400 for the second and third floors of Building 2B, $93,600 for the first floor of Building 2B; and $15,600 for the exterior site work, Phase III, of the project, for a total of $145,600.40 SE 2015. Sollitt was responsible for some criti­cal path delays affecting Phases II and III construction. But Solhtt has also proved that the Navy was responsible for delays here which, based on the credible analysis of this issue by Sollitt’s expert, did affect criti­cal path activities of Phases II and III con­struction. For this reason, and because the critical path delays cannot be apportioned between Sollitt and the Navy with any cer­tainty, the assessment of liquidated damages for Phases II and III construction was not valid and $145,600 must be returned to Sol­litt.

II. Count II: Labor Cost Escalation

Sollitt’s labor cost for carpenters and laborers increased an average of 3.64% per hour on June 1, 1996. JE 231 at 12. Because all phases of contract work were originally scheduled to have been completed by May 31, 1996, Sollitt claims that all of the increase in labor costs due to the raises effective June 1, 1996 is chargeable to the Navy, because delays in completion of the contract work were “attributable to [the] Navy.” Sollitt Br. at 70. Sollitt claims $11,678 for the additional labor expense caused solely by wage increases after May 31,1996. Id.

According to the beneficial occupancy dates established by the record before the court, the contract work occurring after May 31, 1996 was work on the North Range Building, substantially completed on June 11, 1996; work on Building 2B, substantially completed by September 4,1996; and exteri- or site work, also completed by September 4, 1996. SE 2015. As discussed in Count I, the delays of critical path activities in all of these areas were caused both by Sollitt and the Navy, and apportionment of delays af­fecting these activities is not possible on the trial record. Because Sollitt and the Navy were responsible for concurrent delays which pushed this work beyond May 31, 1996, and because Sollitt bore the burden of apportion­ing delays to support its claim for compensa­ble delay, the court cannot award Sollitt its claimed costs for labor escalation.

III. Count IV: Cost of Temporary Enclo­sures and Heat

Sollitt claims $115,122 for temporary enclosures and heat for the exterior masonry on Area C of Budding 122 that took place during the winter months of 1995-96. Sol­litt’s burden is to prove that this work would have been completed before the winter months but for unreasonable delays by the Navy, and that Sollitt incurred the claimed additional costs for temporary enclosures and heat as a result. If Sollitt was responsible for concurrent delays which also pushed the exterior masonry into the winter months,. Sollitt would bear the burden of apportioning the delays caused by Sollitt and the Navy.

The exterior masonry was originally sched­uled for September 12 through November 8, 1995. SE 569. Sollitt was able to establish at trial that the exterior masonry work on Area C of Building 122 was delayed. Tr. at 100-01 (Mr. Maziarka); see Tr. at 2158-59 (Mr. Tipton) (stating that the start of the exterior masonry had been delayed from September 12 to October 16, 1995); Tr. at 3149 Q^lr. Dorn) (stating that the exterior masonry on Area C was delayed). This de­layed start pushed at least part of the exteri- or masonry work on Area C into the winter months • and thus, this work cost more to perform. Tr. at 104-05 (Mr. Maziarka); Tr. at 1395-96 (Mr. Zielinski) (stating that in the ■Chicago area during November or December the temperature would typically drop below thirty-two degrees Fahrenheit and would re­quire temporary enclosures and heat for ex­terior masonry); Sollitt Facts 11303 (plain­tiffs assertion that exterior masonry on Area C was not completed until January 23,1996); GE 1028 (defendant’s estimate that exterior masonry on Area C was not completed until January 17,1996). Sollitt established at trial that the costs claimed in Count IV were additional costs actually incurred because of the expense of performing masonry work in the wintertime, plus profit and bond premi­um markups. Tr. at 104-05 (Mr. Maziarka); SE 545 (cost proposal with underlying docu­ments); JE 231 (DCAA audit at 14-15).

Sollitt did not prove, however, that the exterior masonry work on Area C was on schedule prior to alleged government delays. None of Sollitt’s fact witnesses testified that the project was on schedule before the occur­rence of alleged Navy delays. When plain­tiffs counsel attempted to elicit such testimo­ny at trial, Sollitt’s project manager did not respond. Tr. at 517 (Mr. Zielinski). In­stead, Sollitt relies on its baseline schedule, SE 569, and on general assertions by Mr. Strong and Mr. Maziarka that the baseline schedule was tight but feasible and that Sol­litt could have completed the project on time:

Plaintiffs counsel: “Now, you were aware that the contract provided for completion within 460 days at the time the bid was put in, is that right?”

Mr. Strong: “Yeah.”

Plaintiffs counsel: “And were you person­ally satisfied that Sollitt would be able to satisfy that contractual requirement?”

Mr. Strong: “Yes.”

Plaintiffs counsel: “Was it a tight sched­ule?”

Mr. Strong: “Yes.”

Tr. at 150-51.

Plaintiffs counsel: “Mr. Ma[]ziarka, if it weren’t for the Navy[-] caused delays that are the subject of your claims in the case, would Sollitt have completed the work un­der the contract by the original completion date?”

Mr. Maziarka: “Yes, we could.”

Tr. at 3285-86.

Unrefuted and credible evidence estab­lished that at the beginning of the project Sollitt did not submit a timely baseline pro­ject schedule, Tr. at 1387-91 (Mr. Zielinski) (confirming that the contract required a baseline schedule by mid-March 1995 but that in May 1995 the Navy was still waiting for him to provide one), or a safety plan, see JE 382 at 100040 (safety plan not submitted and approved until May 9, 1995); Tr. at 3136-37 (Mr. Dorn) (same). Procurement of structural steel for Area C of Building 122 was behind schedule. See Tr. at 1488-96 (Mr. Zielinski) (acknowledging that letters from inspectors who visited Sollitt’s steel fa­bricator weekly throughout September 1995 proved that steel pieces were not on site yet, despite an early August 1995 projected com­pletion date for steel procurement); JE 382 at 95-99. Before the exterior masonry work could proceed on Area C, the foundation needed to be built and the structural steel needed to be erected. Tr. at 1406 (Mr. Zie­linski). The November 8, 1995 scheduled completion date for the exterior masonry on Area C was speculative, not certain.

Even assuming that Sollitt’s preparation was on schedule to begin the exterior mason­ry on Area C of Budding 122 on September 12, 1995, Sollitt has not established what delays chargeable to the government specifi­cally pushed back this projected start date. Sollitt, in its post-trial brief, vaguely refers to “the multitude of changes and changed condi­tions encountered on Building 122” as the cause of the delayed start of this work. Sol­litt Br. 11177. At trial, Sollitt’s witnesses on the Count IV claim alluded to the differing site condition of an asbestos-laden steam tun­nel in the footprint of Area C and a work stoppage due to a strike as delays to the exterior masonry work chargeable to the Navy.41 Tr. at 101-03 (Mr. Maziarka); Tr. at 1464 (Mr. Zielinski).

There is clear evidence in the record of the delay caused by the strike, which took place from August 29 through September 6, 1995, Tr. at 1481, which is further corroborated by the Navy’s grant of a six calendar day time extension for the completion of Phase I con­struction. JE 73 (Modification P00041). There is also clear evidence that the steam tunnel asbestos removal held up work on Area C, although the extent of that delay was not firmly established. Compare JE 52 (Modification P00019) (showing that the Navy granted a time extension of twenty calendar days to Phase I construction for this work) with JE 233 at Tab 3 (Mr. Tipton’s “Baseline” Report) (estimating a delay of fifteen calendar days based on contractor logs and other supporting material). Despite the availability of this evidence, Sollitt never attempted, at trial, in its expert report or in its post-trial brief, to establish how many days of Navy-caused delay were responsible for the late start of the exterior masonry.

By July 21,1995, when the asbestos abate­ment had been completed and the bulk of the Navy-caused delays alleged to have affected the exterior masonry work on Area C had been experienced, JE 233 at Tab 3, Sollitt was projecting in its CPM update a Septem­ber 18, 1995 start date for the exterior ma­sonry, and an estimated completion date of Nov. 14, 1995, GE 1034; Tr. at 1440-41 (Mr. Zielinski). This is a difference of one week from the baseline schedule for this work.42 When another week is added for the strike, the exterior masonry could have been de­layed two weeks by the Navy-caused delays. Sollitt introduced no evidence of when winter weather arrived in the Chicago area in 1995. Based on the record before the court, plain­tiff has not met its burden to prove that unreasonable delays by the Navy pushed the exterior masonry work on Area C of Building 122 into the winter months.

Even if Sollitt had proved that unreason­able delays by the Navy pushed the exterior masonry work on Area C into the winter months, Sollitt has not proved that the Navy-­caused delays were the sole proximate cause of the delayed start to this work. Contempo­raneous documents show a delay of at least one and a half months in Sollitt’s procure­ment of structural steel, JE 382 at 95-99, which also would have delayed the exterior masonry work on Area C.43 Sollitt bears the burden of apportioning any concurrent de­lays to prove its claim. Sollitt has not appor­tioned the delays affecting the exterior ma­sonry work on Area C, and the record before the court lacks the specificity and certainty which would make apportionment feasible.

For these reasons, Sollitt may not recover for its claims of additional expenses for the exterior masonry on Area C of Building 122 performed during the winter months.

IV. Count V: Overtime Premium Pay

Sollitt claims that it expended $148,387 in overtime premium pay; that this overtime work was authorized by the Navy; and that the Navy now owes Sollitt $118,458, the balance due because the Navy only paid Sollitt $29,929 for overtime costs. Defendant argues that the authorization for overtime work was limited in scope and that Sollitt’s current claim is for overtime work that was not authorized. The parties principally dis­pute whether Sollitt was authorized to con­tinue working Saturdays after January 20, 1996. An additional concern for the court is whether Sollitt was paid the correct amount for overtime worked from October 21, 1995 through January 20,1996.

In mid-October 1995, Cdr. Walters, the NTC Resident Officer in Charge of Con­struction (ROICC), authorized Sollitt to be­gin working overtime. Tr. at 2452 (Lt. Odor­izzi). This authorization was limited in scope in several respects. First, the purpose of the overtime work was to bring critical path ac­tivities back on schedule, or at least to re­duce delays in project completion. GE 1063 (Stipulation of Cdr. Vernon Walters). Sec­ond, the Navy exercised control over both the activities scheduled for Saturday work and the number of workers who would work that day. See GE 1007 (Navy annotated copy of Sollitt December 7, 1995 facsimile proposing overtime for December 8, 1995); Tr. at 2459-60 (Lt. Odorizzi) (recalling in that particular instance, that he had denied Sollitt permission for roofers to work overtime and had limited overtime work to critical path activities on Building 122). Third, there was a procedure in place to approve each Satur­day of overtime work beforehand, in which Sollitt would specifically propose construction activities and workers for those activities by Friday afternoon and the Navy would then approve all or part of the overtime request before work began that Saturday. Tr. at 652-57 (Mr. Zielinski); Tr. at 2454-60 (Lt. Odorizzi).

Even with overtime work, however, Sollitt was not able to reduce the predicted delays to project completion. Tr. at 2467 (Lt. Odor­izzi). The Navy withdrew its authorization for any further overtime reimbursement be­yond January 20, 1996. Id. The Navy re­quested in the January 31, 1996 partnering meeting that Sollitt submit all of its outstand­ing overtime cost proposals (CXs) for the period October 21, 1995 to January 20, 1996, about half of which were outstanding. Id.; GE 1052. In February 1996, Sollitt cleared this backlog and submitted overtime CXs for Saturdays in November and December 1995 and for three Saturdays in January 1996 ending with Saturday, January 20,1996. SE 543. At the February 28, 1996 partnering meeting the submission of overtime cost pro­posals agenda item was marked CLOSED. GE 1053. Once the Navy had all of Sollitt’s cost proposals for the authorized overtime, the NTC ROICC put in a request for funding to pay for these cost proposals on February 29,1996.

Sollitt continued to incur overtime ex­penses after January 20, 1996, when it used workers on some Saturdays through June 1996. SE 543. There is no indication, how­ever, that this overtime was authorized as an added contract expense by the Navy. There is no documentary evidence in the record of Sollitt preparing weekly proposals to work on those Saturdays, nor is there documentary evidence of the Navy receiving or approving such requests. Sollitt stopped submitting cost proposals to the Navy for overtime on February 23,1996 (when the CX for January 20, 1996 was submitted), and did not resume submitting overtime cost proposals to the Navy until August 22, 1996. Id. Because the Navy did not authorize overtime after Janu­ary 20, 1996 and is not hable for overtime costs after this date, Sollitt cannot recover the costs of overtime worked after January 20,1996.44

Sollitt does not indicate how much of its claim in Count V is related to overtime per­formed after January 20, 1996, and how much might be attributed to authorized over­time from October 21, 1995 through January 20, 1996, for which the Navy paid $29,929. Sollitt did not present the court with the overtime CXs for October 21, 1995 through January 20, 1996, but it did present a de­tailed spreadsheet summary of the overtime expenditures for this period. SE 543. It appears from this document that Sollitt may have expended about $70,000 on overtime for this period and billed the Navy for a some­what larger figure, including markups for overhead, profit and bond premium.45 Id.; SE 547 (damages summary of CXs showing that $78,499 was requested for overtime for this period); JE 205 (Navy letter to Sollitt referring to overtime cost proposals for the period ending January 20, 1996, “the sum of [which] exceed $75,000”); JE 383A at 283 (Navy file document dated September 24, 1997 stating that Sollitt requested $78,111 for overtime expenses for this period). Even though the amount of Sollitt’s claim for over­time costs for October 21, 1995 through Jan­uary 20,1996 was not clearly stated by Sollitt at trial or in its post-trial brief, the court finds that Sollitt’s claims total approximately $75,000 for this period. See Sollitt Br. 11185 (stating that “premium time of approximately $75,000 was billed February 23, 1996”).

Mr. Zielinski testified that Sollitt’s CX pro­posals for overtime expenses were accurate representations of payments to Sollitt’s sub­contractors, Tr. at 647, and that Sollitt sum­mary records of the CX proposals for this period (SE 543 and SE 547) were documents summarizing the CXs submitted to the Navy, Tr. at 640-41. The DCAA audit found that the total overtime expenses claimed in SE 543 were actually expended. JE 231. The court finds that Sollitt did expend approxi­mately $75,000 for overtime from October 21, 1995 through January 20, 1996. The Navy paid only $29,939 for overtime costs during this period. JE 87 (Modification P00055 of April 28,1999, at 6).

There are several possible explanations for the discrepancy between the Navy’s payment and Sollitt’s cost proposals for overtime for this period. Overtime premium rates for Sollitt’s subcontractors were sometimes dis­puted by the Navy. Tr. at 639 (Mr. Zielinski). There were also occasions when Sollitt’s esti­mate of costs in its overtime request was much less than the actual cost proposal sub­mitted afterward. Compare GE 1009 at 4 (estimating overtime costs of $3000-$4000 dollars for 23 workers, only 18 of whom were approved by the Navy to work January 6, 1996) with SE 547 (showing that CX 154 for January 6, 1996 requested payment for over­time costs of $8350). There also were dis­putes over what portion of Sollitt’s expenses should be chargeable to the Navy. Compare JE 383A at 284 (stating the Navy’s view that the agreement pi’ovided that the Navy would only pay the “premium” portion of overtime wages, i.e., the “and a half’ portion of “time and a half,” and also its understanding that Sollitt could not mark up its costs for profit and overhead) with SE 543 (marking up overtime expenditures for profit and over­head). The Navy also refused to pay for Sollitt expenses that were not substantiated by “certified payrolls.” JE 383 at 285. The Navy provided detailed justification for the payment it authorized, and the costs it disal­lowed, for each of the thirteen Saturdays worked from October 21, 1995 through Janu­ary 20, 1996. Id. at 285-88. Sollitt merely provided a summary of payments to subcon­tractors and its own labor costs, SE 543; SE 547, which were not proved to be payments for which the Navy must reimburse Sollitt.

The Navy’s documentation backing up its payment of $29,939 for the overtime worked from October 21, 1995 to January 20, 1996 showed that reasonable calculations and deci­sions supported this figure. It also appears that Sollitt may have expended more on overtime than the Navy authorized. See Tr. at 687 (Mr. Zielinski) (stating that “[i]f the [Navy] never called me back [to approve overtime for that Saturday], I’d work these guys anyway”). In any case, Sollitt did not meet its burden to prove that the Navy was liable for any of the difference between $29,939 and $75,000, because Sollitt did not prove that $75,000 was the reasonable cost for the overtime the Navy authorized. For these reasons, Sollitt may not recover addi­tional monies for overtime expenditures.

V. Count VI: Balance of Cost of Added Fill for Bathroom Floors

Sollitt claims it is owed $809 for the addi­tion of fill to certain bathroom floors in Building 122. Sollitt Br. at 75. Defendant contends that Sollitt was adequately compen­sated for the additional fill work. There is no real dispute that the Navy was liable for payment for the addition of fill to the bath­room floors. See Tr. at 697 (Mr. Zielinski) (describing soft spots in the subfloor that were discovered when the existing floor was removed); Tr. at 1066 (Mr. Zielinski) (stating that the deteriorated subfloors were impossi­ble to see during inspection because they were covered over); Tr. at 2482 (Lt. Odoriz­zi) (stating that “the only objection that the government took to the contractor’s [cost of adding fill] proposal at the time was his profit percentage”); JE 77 (Modification P00045) (authorizing an equitable adjustment because of the need for additional fill after demolition of existing bathroom floors, under the Changes clause). The court agrees with the contracting officer’s contemporaneous de­termination that the Navy was liable for an equitable adjustment for the additional fill work in Building 122 bathrooms, under ei­ther the Changes clause or the Differing Site Conditions clause.

Sollitt asserts that it was entitled to be paid its claimed costs for the additional fill work, $3859.18 paid to a subcontractor plus markups for overhead, bond premium and profit, totaling $4363. The Navy paid only $3554. JE 77. Lt. Odorizzi reported that the Navy paid less than the amount claimed by Sollitt because of a dispute over profit markup, Tr. at 2481, and defendant stated that the Navy wanted to pay for Sollitt’s profit at 7% rather than 7.36%, Def.’s Mem. at 52. Defendant, however, has since stipu­lated that Sollitt is entitled to a 7.36% profit markup on subcontractor payments that are otherwise justified. SE 2007 at 1. The 7.36% profit markup was therefore reasonable. No other evidence was presented of a govern­ment challenge to Sollitt’s costs for the addi­tion of fill to the bathroom floors. The court finds that Sollitt’s payment to its subcontrac­tor was reasonable for the work performed, and that this cost, as marked up by the stipulated percentages for overhead, bond premium and profit, is the correct measure for this added contract work. Because the Navy paid $809 less than the correct amount, Sollitt is awarded $809 for Count VI.

VI. Count VII: Balance of Cost of Stabi­lization of Sand Under Building 2B

This claim by Sollitt is related to the work discussed in Count I, Section B-3. The Navy unilaterally modified the contract to add $47,550 for the added work required by the differing site condition of black sand behind the south foundation wall of Building 2B. Defendant does not contest Sollitt’s entitle­ment to payment for this work added to the contact. Sollitt contends that its cost to per­form the added work exceeds what the Navy paid. Sollitt originally claimed and still claims that $123,781 is the reasonable cost for the work, Sollitt Br. 1111192-93, 196, and because the Navy paid only $47,550 Sollitt now claims an unpaid balance of $76,231.

Two types of proof were offered at trial. Sollitt relied on its original cost proposal, which was submitted after the actual con­struction and was dated September 18, 1996. SE 297; SE 2001. Mr. Strong testified that these costs were “reasonable and necessary” and that “such labor and material costs rep­resent the reasonable and customary costs for such items in the industry.”46 Mr. Strong gave a detailed explanation of how Sollitt credited to the Navy the cost of build­ing the foundation wall as originally de­signed. Tr. at 469-74. The DCAA audit found that, in general, the claimed costs for this and other unilateral modifications were actually expended. JE 231 at 2,16-17. The great majority of the items and calculations underlying Sollitt’s cost proposal CX 39 ap­peared to the court to be credible.

Defendant relied principally on the testi­mony of Lt. Odorizzi, who disagreed with the quantities of some of the labor and materials that Sollitt claimed in its cost proposal, both on the “credit” side for the original work and the “add” side for the changed work. Tr. at 2528-30, 2534-35, 2539-56. His testimony was based, at least in part, on calculations he performed in September 1997. Tr. at 2538, JE 383A at 002-030. Lt. Odorizzi pointed out in one example that his revision of a quantity benefited Sollitt, Tr. at 2543, and in another example his revision benefited the Navy, Tr. at 2541-42. Both Mr. Strong and Lt. Odorizzi testified that in one respect, the changed work was actually easier than the originally planned construction. Tr. at 472-­73, 3528-30.

Lt. Odorizzi’s calculations produced the figure which was eventually paid by the Navy — $47,550. Tr. at 2952-55. Lt. Odoriz­zi characterized this figure alternatively as a negotiating objective, “[t]he government ob­jective, which isn’t quite the same as an estimate, I guess,” Tr. at 2956, or as “both ... a reasonable cost for the work performed [and][o]ur objective,” Tr. at 2957. It appears to the court that the “objective” was de­signed to be a starting point for negotiations. See Tr. at 2957 (Lt. Odorizzi) (“[I]f there was a flaw in our logic, hopefully the contractor would bring that to our attention during negotiations.”). Lt. Odorizzi also suggested that his figures might have been more accu­rate if Sollitt had provided, as requested, some as-built drawings to reflect the minor modifications Sollitt had made to the design embodied in the sketch provided by the Navy. Tr. at 2539.

Lt. Odorizzi’s testimony showed that he did not have extensive professional experi­ence estimating construction jobs, Tr. at 2936-37, that his calculations were further removed in time from the work than those performed by Sollitt, Tr. at 2937, and that the revisions he had made to the quantities used in the cost proposal provided by Sollitt were not always accurate, Tr. at 2987. When questioned about his deduction of all hand excavation labor costs for the revised founda­tion wall construction, his answer that the work could have been done with equipment instead was not credible. Tr. at 2962-71. Sollitt’s evidence of cost was generally more convincing than the revisions made to Sol­litt’s figures by Lt. Odorizzi, therefore Sol­litt’s estimate of an unpaid balance of $76,231 is deemed by the court to be a reasonable and valid claim, with only limited adjust­ments deemed necessary.

There are two adjustments to be made to Sollitt’s proposed unpaid balance for the ex­tra work caused by the black sand. First, as defendant pointed out at trial, Sollitt included a line item in CX 39 for labor provided by its quality control manager, whose services con­stitute a fixed cost throughout the project and thus cannot be allocated to a particular aspect of the construction. Tr. at 3061. This testimony was uncontroverted. There­fore, the line item for $3000, as adjusted for profit, overhead and bond premium markups, must be deducted from Sollitt’s claim. Sec­ond, the court reviewed Sollitt’s “credit” and “add” cost calculations and discovered a 0.65% markup to total materials used, but this markup was found only on the “add” cost calculation. This markup was not ex­plained to the court, although it closely re­sembles Sollitt’s bond premium markup of 0.62% on contemporaneous documents such as CX 39, see SE 297, and the bond premium markup of 0.67% stipulated by the parties, see SE 2007 at 1. Because this markup was not found in both the “add” and “credit” materials cost totals, this unexplained mark­up of $258 dollars, as adjusted for profit, overhead and bond premium, must also be deducted from Sollitt’s claim.

These two deductions, employing the mar­kups used in CX 39,47 are calculated as fol­lows:

Quality control manager overcharge $3000

Overhead markup on $3000 ($3000 X 3%) $ 90

Profit markup on $3000 ($3000 X 7.36%) $ 221

Subtotal $3311

Bond premium markup on $3311 ($3311 X 0.62%) $ 21 QUALITY CONTROL MANAGER OVER­CHARGE WITH MARKUPS $3332

Unexplained markup overcharge $ 258

Overhead markup on $258 ($258 X 3%) $ 8

Profit markup on $258 ($258 X 7.36%) $ 19

Subtotal $ 285

Bond premium markup on $285 ($285 X 0.62%) $ 2

UNEXPLAINED MARKUP OVERCHARGE WITH MARKUPS $ 287

TOTAL overcharges with markups in CX 39 $3619

Sollitt’s unpaid balance claim in Count VII is $76,231. When $3619 is subtracted from $76,231, the unpaid balance claim is reduced to $72,612. Sollitt is awarded $72,612 on Count VII of its complaint.

VII. Count VIII: Balance of Cost of Re­moval of Interior Face of Walls

The Navy directed Sollitt to remove the interior clay tile surface of some of the exte­rior walls in Building 2B and unilaterally modified the contract to pay Sollitt $19,010 for this change to contract work. Sollitt Br. IF 197; JE 78 (Modification P00046). Sollitt claims that it was underpaid for this demoli­tion work. The Navy argues that Sollitt’s claimed costs of $36,695 are not justified.

Sollitt’s witnesses described the demolition work undertaken based on this contract mod­ification. Tr. at 318-20 (Mr. Strong), 718-19 (Mr. Zielinski). The parties have stipulated that Sollitt paid its subcontractor $32,335. SE 2007 at 2. Lt. Odorizzi testified that the number of hours of labor required for this work were disputed and that no agreement was ultimately reached on this issue. Tr. at 2485-86. Lt. Odorizzi did not personally con­duct a field audit as to the appropriate amount of labor required. Id. The DCAA audit confirmed that, in general, payments made to subcontractors were actually in­curred. JE 231 at 2,16-17. The court finds that Sollitt’s payment of $32,335 to its sub­contractor for this work was reasonable. When stipulated costs for overhead, profit and bond premium are added, SE 2007 at 1. Sollitt is entitled to $36,575 for the reason­able value of this work. Because Sollitt was paid only $19,010, Sollitt is awarded $17,565 for Count VIII.48

VIII. Count IX: Balance of Cost of Curb Inlet

The Navy added work to the contract for a Building 2B parking area curb inlet to the storm drainage system. Sollitt Br. at 79; JE 64 (Modification P00031). The work included a change in elevation of nearby pavement, installation of the curb inlet, creation of a slope in surrounding pavement toward the drain, and excavation for and installation of an eight-inch PVC pipe drain line. JE 64. Sollitt submitted a cost proposal for $6414 for this work on June 27, 1996. Sollitt Facts If 328. Defendant does not deny its liability for this change to the contract, but does argue that Sollitt’s cost proposal is excessive, because it “includes work that [Sollitt] was required to do under the terms of the con­tract.” Def.’s Br. at 28. Defendant’s allega­tion that excessive costs were included in Sollitt’s cost proposal was not substantiated by any testimony or documentary evidence.

The Navy paid Sollitt $3394 for the curb, inlet work. JE 64; JE 87 (Modification P00055). The Navy has stipulated that Sol­litt paid its subcontractor $4188 for work on the curb inlet, and that justified subcontrac­tor payments are entitled to stipulated mar­kups for overhead, bond premium and profit. SE 2007 at 1-2. Sollitt also expended labor and materials of its own on the curb inlet. Sollitt Mem. if 329. Sollitt’s cost proposal of $6414 was reasonable, and reflects amounts actually expended on this work, as confirmed by the DCAA audit, JE 231 at 4, 16-17. Sollitt is awarded an equitable adjustment of $3020 for the unpaid portion of its curb inlet work.

IX Count X: Balance of Cost of Revi­sions to Electrical Plans

Sollitt alleges that Amendment 19 changed electrical work on the ship’s trainer in Area C and that its CX 174 appropriately request­ed $7691 for the added work. Sollitt Br. at 80. Testimony at trial, Tr. at 719-20 (Mr. Zielinski), and the parties’ stipulation to a $6803 payment to a subcontractor for this work, support Sollitt’s claim. Lt. Odorizzi testified that Amendment 19 was not an ex­tensive change that would cause this great of an addition to bid-based contract work. Tr. at 2487-91. The Navy paid $793 for work described in CX 174, as shown by a $971 payment in Modification P00029, JE 62, and a $178 deduction in Modification P00055, JE 87. The court, however, notes that the gov­ernment estimate of cost documented in the unilateral modifications concerning Amend­ment 19 appears to be a negotiating figure, not a perfectly accurate cost estimate. See JE 383A at 226 (facsimile cover sheet regard­ing Amendment 19 with handwritten notes from Lt. Corsello, the contracting officer, to division headquarters) (“Gov’t Est[imate] = $1200. We [had] better reserve $5000.”). For this claim, plaintiffs estimate of the cost of work added to the contract is better sup­ported by the evidence before the court and is reasonable. Sollitt is awarded $6898, the unpaid balance for this work included in Amendment 19.

X. Count XI: Balance of Cost of Revi­sions to Relief Air Plans

After the HVAC system had been installed and most of the renovation of Building 122 Areas A and B was complete, a design flaw was discovered in the ventilation system. SE 144. The Navy added $47,439 to the contract pursuant to the Changes clause for work to correct the problem, which included adding ductwork and dampers, and adjusting airflow in the building. JE 56 (Modification P00026). Sollitt submitted a cost proposal for the work totaling $16,743. SE 163. Af­ter the work was completed, Sollitt submitted a revised cost proposal for $17,358. The Navy eventually modified its change order for the relief air work, which reduced the payment amount for this work to the $16,743 that Sollitt had originally proposed. JE 80 (Modification P00048). Sollitt now seeks $615, the unpaid portion of its revised cost proposal.

The court finds that the Navy was hable for this change to the contract, because its ventilation design was faulty and required substantial corrective work. Defendant does not contest the Navy’s liability for the changed contract work, but claims it paid a “fair and reasonable” price for the added work. Def.’s Br. at 30. Mr. Zielinski ex­plained that Sollitt’s charge for its subcon­tractor’s work remained the same in the revised cost proposal, but that Sollitt’s ex­penses increased, such as when it had to rent a lift to access some of the work areas. Tr. at 567-68. Sollitt’s expenses for this work were confirmed by the DCAA audit, SE 231 at 4, 16-17, and are reasonable. Sollitt is awarded $615 for the unpaid portion of its work to fix the design flaw in the HVAC system in Building 122 Areas A and B.

XI. Count XII: Balance of Cost of Revi­sions to Damper Plans

As the court found in Count I Sec­tion B-7, Sollitt should have inquired into the contradictory contract terms affecting opera­ble smoke dampers in the ventilation duets in Building 2B before installing inoperable smoke dampers. Therefore, any costs asso­ciated with removing inoperable smoke dam­pers or restoring damage to drywall occa­sioned by this removal are not recoverable by Sollitt. The only remaining costs in Sol­litt’s claim regarding smoke dampers are for work done to complete the smoke dampers installation, as modified by the Navy. The Navy contends that any work done to install operable smoke dampers was part of the original contract, and that modifications to the smoke dampers resulted in a net de­crease of contract costs for Sollitt. In light of the evidence presented at trial, the Navy’s argument is persuasive.

Sollitt’s reading of the original contract is that Sollitt was instructed to install thirty-­eight inoperable smoke dampers. Tr. at 1034 (Mr. Zielinski). This reading of the contract is unreasonable. Not only does this reading defy common sense, but it would negate the smoke damper specification re­quiring the smoke dampers to close in the case of smoke, and to reopen when the smoke had cleared. GE 1019 112.5.2. Read­ing the contract as a whole, the necessity of functioning smoke dampers is apparent and the contractor should have resolved the pow­er and fire alarm system connection prob­lems before proceeding with the smoke dam­per installation. “An interpretation that gives meaning to all parts of the contract is to be preferred over one that leaves a portion of the contract useless, inexplicable, void, or superfluous.” NVT Techs., 370 F.3d at 1159 (citing Gould, Inc. v. United States, 935 F.2d 1271, 1274 (Fed.Cir.1991)). The court must conclude that the contract as bid included operable smoke dampers at the locations in­dicated on the mechanical drawings.

Mr. Zielinski testified that thirty-eight in­operable smoke dampers were installed. Tr. at 1084. The modification of the smoke dam­per contract work deleted as many as twen­ty-four smoke dampers and the connections they would have required to the power and fire alarm system. Id.; Def.’s Br. at 31; see also JE 80 (Modification P00048) (mandating the removal of eleven installed inoperable smoke dampers). The modification of the work also mandated the connection of four­teen smoke dampers to the power and fire alarm system. JE 80. The court finds that the modified smoke dampers installation is a net decrease in contract work from the con­tract work as bid. Therefore, Sollitt cannot recover additional compensation for the revi­sions to smoke dampers in Building 2B.

XII. Count XIII: Balance of Costs for Modified Steel Plates

Sollitt seeks $293 for the unpaid por­tion of its cost proposal CX 211, allegedly submitted on September 11, 1996, which os­tensibly detailed costs for fabricating and installing “certain steel plates.” Sollitt Br. at 83-84. Sollitt presented no evidence to justi­fy this claim. CX 211 was not entered into evidence as an exhibit, and although Sollitt referred to SE 302 for data related to CX 211 in its post-trial brief, SE 302 is actually CX 332 and deals with another subject mat­ter entirely. None of Sollitt’s witnesses tes­tified as to the reasonableness of the costs in CX 211, or, for that matter, as to what the changed work regarding “certain steel plates” entailed. Lt. Odorizzi testified that the Navy paid a “reasonable cost” for this changed work, Tr. at 2495, and his testimony is entirely uncontroverted. Sollitt bears the burden of proving the reasonableness of costs for changed work for which it seeks an equitable adjustment, and has not met that burden in this instance. Sollitt is awarded nothing for Count XIII.

XIII. Count XIV: Reimbursement for Unilateral Deductions

Sollitt seeks reimbursement for four uni­lateral deductions the Navy made to the contract price for four work items that were deleted from the contract. These deductions total $7625 and are best addressed separate­ly by their proposed change order (PCO) numbers, because there is no common thread linking them, other than that they were all included in Modification P00055 signed on April 28, 1999, JE 87. The Navy bears the burden of proving the value of the work deducted. Nager, 442 F.2d at 946. As dis­cussed below, Sollitt is entitled to $726 for the deduction imposed for PCO 79, and $1312 for the deduction imposed for PCO 88, and is awarded a total of $2038 for Count XIV.

A. PCO 79: Not painting three me­chanical rooms in Building 2B

The Navy decided that “[i]t d[id] not make any sense to paint [the] walls” in three me­chanical rooms in Building 2B. JE 383B Tab PCO 79 (Lt. Odorizzi letter of October 1, 1997). Sollitt agreed that a credit was due the Navy, but the parties disputed the square footage of the rooms and the amount of painting costs saved by the deleted work. JE 383B Tab PCO 79 (Sollitt’s CX 235 of May 13, 1996) (proposing a credit of $1682); Tr. at 2709 (Lt. Odorizzi) (stating that his analysis of October 1997 suggested a credit of $2408). The Navy deducted $2408 from the contract price for this issue. JE 87.

There was documentation in the record to support both figures. The court notes that Sollitt’s credit estimate was contemporaneous with the decision to delete the work from the contract, and was based on a subcontractor’s estimate. JE 383B Tab PCO 79. The Navy’s estimate was created over a year later, and was based on estimating formulas. Id. The court finds Sollitt’s credit figure to be more credible, and awards Sollitt $726 for the Navy’s incorrect deduction for PCO 79. This award represents the difference be­tween $1682, the value of the deducted work, and the Navy’s deduction of $2408 in Modifi­cation P00055.

B. PCO 84: Not painting a plywood barricade at a loading dock

In the summer of 1995, Sollitt and the Navy signed Modification P00003, which sub­stituted a plywood barricade for a section of chain-link fencing at the edge of an existing loading dock, to prevent unauthorized access to the construction site. JE 36. The parties added $4952 to the contract price for this work, which included painting the barricade “a suitable color to match the required con­struction fencing.” Id. Sollitt never painted this barricade, and the Navy deducted exact­ly the amount that Modification P00003 had added to the contract price for the painting portion of the barricade work. JE 383B Tab PCO 84 (showing the June 1995 cost break­down for Modification P00003, including the cost of the painting portion of the barricade work); JE 87 (Modification P00055) (deduct­ing $2538 for PCO 84, exactly the amount that was in the cost breakdown developed for Modification P00003 for the painting portion of the barricade work). Because the Navy deducted the same amount that it had previ­ously added for changed work that Sollitt did not perform, the Navy’s deduction was rea­sonable. Sollitt is not entitled to any reim­bursement for the Navy’s unilateral deduc­tion for PCO 84.

C. PCO 88: Not installing three cypher locks

The cypher locks issue was extensively discussed in Count I Section B-6 and is further discussed in Count XV Section M. Although the court has found that there was no net increase in Sollitt’s costs caused by the clarification of the cypher lock installa­tion and the deduction of the installation of three cypher locks from the contract work, it is impossible to discern from the evidence before the court the amount of a credit due the Navy for this issue. This is partly due to the confusing mix of added and deleted work: Sollitt had to add duplex outlets in junction boxes for plugging in ten cypher locks, but did not have to install three cypher locks. JE 382 at 100188; SE 363; JE 383B Tab PCO 88. No comparison of the relative costs involved in these changes has been provided to the court. The Navy has failed to meet its burden of proof for its unilateral deduction for PCO 88. All of the $1312 deducted from the contract price in Modification P00055 for cypher locks not installed is awarded to Sol­litt.

D. PCO 95: Substituting 4-inch con­duit for 6-inch conduit on trans­formers

Sollitt requested a variance on some of the conduit serving transformers for Buildings 122 and 2B. JE 383B Tab PCO 95. The change in conduit size was approved by the Navy. Id. The smaller conduit cost less and Sollitt’s subcontractor submitted an estimate of cost savings. Id. The Navy deducted the cost savings amount estimated by Sollitt’s subcontractor, plus markups for overhead, profit and bond premium. Id. The deduction was substantiated and was reasonable. Sol­litt is not entitled to any reimbursement for the unilateral deduction for PCO 95.

XIV. Count XV: Balance Due on Pro­posed Change Requests

A. CX 18: Lead Paint Abatement (Building 2B)

As described in Count I Section B-l, Sol­litt encountered a differing site condition when hazardous amounts of lead were found throughout Building 2B. Sollitt is thus enti­tled to an equitable adjustment for the rea­sonable costs of lead abatement. Sollitt paid its subcontractor $130,000, and its attorneys $8460 to litigate that price rather than a higher sum initially invoiced. SE 2007 at 1, 3; Sollitt Br. ¶100. The Navy has stipulated that the subcontractor was paid “the fair market value” for lead abatement. SE 2007 ¶4. The Navy has also stipulated to over­head, profit and bond premium costs. Id. ¶1. Sollitt’s payment for lead abatement of $138,460, when increased by stipulated mar­kups, totals $156,616.49 Sollitt is awarded $156,616 for CX 18.

B. CX 47: Extra Work to Complete Water Connection for Architect’s Trailer

In Modification P00004 Sollitt agreed to a number of contract changes, including the addition of a “ConRep field office” or archi­tect’s trailer, and for all of these changes $96,158 was added to the contract price. JE 37. When Sollitt’s subcontractor tried to connect the trailer to a working water line at the underground spot indicated by the Navy, either the line was dry or the working water line was not in that location, according to differing versions of facts related to the court. Compare Tr. at 734-35 (Mr. Zielinski) (“[The Navy] told us which line to tap to get them the water, which we dug up. We tapped it. It was dry.”) with Tr. at 3012 (Lt. Odorizzi) (stating that the indicated location was inaccurate and that the subcontractor, upon not finding any line there, “went five feet in the wrong direction [and] tapped a line that was not live”). In any case, the facts indicate that Sollitt’s subcontractor pro­ceeded to expend additional hours of labor digging until it found and tapped a working water line. Tr. at 735 (Mr. Zielinski) (“The plumber took it upon himself to look around, so to speak, with his baekhoe equipment digging up in the vicinity____ [CX 47] was just the additional cost for that work____'it just took more time.”); JE 383B Tab PCO 97 (Lt. Odorizzi memorandum dated Oct. 4, 1997) (“The contractor continued to excavate and found a line several feet away.”). It is undisputed that the Navy was hable for the costs of misdirecting the plumber to the wrong underground location. The Navy paid Sollitt $205 for the added expense that Sollitt incurred. JE 87 at 8 (Modification P00055). Sollitt claims, however, that it was entitled to $3916 for the “extra work locating a substi­tute water line.” Sollitt Br. at 87-88. Sollitt now claims $3711 as the balance due for this work. Id. H 233.

It is unnecessary for the court to resolve exactly what happened. It is, however, im­portant to determine the reasonable costs that the Navy’s misdirection would have caused a prudent contractor to expend. Even if the plumber’s decision to hunt for a water line was reasonable, Sollitt’s claimed costs, founded on a stipulated payment of $3364 to its plumbing subcontractor and stipulated markups, SE 2007 at 1, 3, are not credible. The cost breakdown for this extra work to locate a working water line includes charges that do not remotely relate to the testimony of witnesses at trial. In CX 47, the plumber has detailed costs for thirty-five feet of sewer pipe, and over five hours of labor to install that sewer pipe, as well as forty feet of water pipe and over an hour of labor to install that water pipe. JE 383B Tab PCO 97. None of these costs can be related to locating a work­ing water line or making a second tap into a water line. These are more likely costs asso­ciated with the actual connection of the trail­er to water and sewer lines once the good water line was found. That work was al­ready paid for in Modification P00004.

There are other questionable costs in CX 47, including over a day’s worth of baekhoe rental fees, which included the costs of a machine operator. Id. If, as Mr. Zielinski suggested, the plumber was trying to save the Navy money by forging ahead and find­ing a water line without the Navy’s assis­tance, Tr. at 1087, his perseverance was rath­er expensive and counterproductive. Also included in the plumber’s bill are material costs for the “water tap hole” and the “pres­sure connector,” totaling over $900, JE 383B Tab PCO 97, which could only be valid costs if these items were limited to one use only and could not be re-used for a second tap. These costs, and the cost breakdown for CX 47 as a whole, were not explained or ade­quately justified by either testimony or post-­trial briefing. For these reasons, Sollitt can­not be awarded its claimed costs in CX 47.

The court is unwilling to agree with defen­dant, however, that $205 is adequate compen­sation for the Navy’s misdirection regarding the location of the water line. Lt. Odorizzi alleged that an “[a]dditional hour or so” was the only delay that the plumber faced, if the Navy had been contacted and asked to offer a new location to excavate. Tr. at 3014. The Navy’s payment was indeed calculated to cover one hour of idleness for the plumber and one tenth of a day of baekhoe rental costs, operator included. JE 383B Tab PCO 97. But this appears to be too little time. According to Lt. Odorizzi, the proper proce­dure would have been to contact Sollitt’s superintendent, who would contact Lt. Odor­izzi, who would contact the NTC water utility department, which would contact their field staff, who would then make themselves avail­able and correctly locate the working water line. Tr. at 3012-13. The court finds that four hours would be a more accurate esti­mate for the costs associated with the incor­rect direction: one half hour to expand the existing hole to make sure that the working water pipe was not just a couple of feet in any direction; one hour to pass the word through channels to the NTC water utility field staff; one and one-half hours for the water utility staff to get to the site and resite the location marker for the working water line; and, one hour to fill the old excavation hole and to redirect the connecting trench from the trailer to meet up with the new tap (which according to all accounts was within five feet of the original excavation). Sollitt had the burden of proving any other associat­ed costs that would augment these four hours of plumber labor and backhoe rental costs, and it has not done so. Although any esti­mate is uncertain, the court deduces that the Navy should have paid approximately four times what it did for CX 47, or $820. Be­cause the Navy paid only $205, Sollitt is awarded $615 for CX 47.

C. CX 91: Reinforce Building 122 Win­dowsills with Clip Anchors

There is no dispute that Sollitt anchored Building 122 windowsills to the underlying masonry walls with “Z-elips,” a type of metal straps, when the window openings were filled with plastic temporary enclosures during re­modeling. Tr. at 740 (Mr. Zielinski). There is also no dispute that Sollitt’s expenses for installing the Z-clips totaled $5375, including markups for overhead, bond premium and profit. Sollitt Br. 11242; JE 231 at 17 (DCAA audit); SE 2007 at 3 (joint stipulation as to Sollitt’s payments to subcontractors). These costs were for work that was not part of the contract work as bid, because the windowsill condition was not discovered until the old windows and some of the architectur­al supports had been removed. Tr. at 740 (Mr. Zielinski). There is a dispute, however, as to whether the windowsill problem was caused or aggravated by Sollitt’s use of tem­porary plastic enclosures in the window openings, Tr. at 2500 (Lt.Odorizzi) (alleging that the plastic enclosures acted “as a sail” and banged on the windowsills until “the sills required some work”), and as to whether Sollitt’s solution of Z-clips was an authorized change to the contract work, id. at 3020 (stating that Sollitt “proceed[ed] with that Z clip installation prior to any direction from the government”).

Although putting plastic enclosures in the window openings in Building 122 was not part of Sollitt’s original plan to remodel the building, this measure was required to keep the remodeling of Building 122 from being overly delayed. Tr. at 3279 (Mr. Maziarka) (explaining that the plastic enclosures per­mitted interior work to proceed and that Building 122 Areas A and B finished “on time”). It was the Navy that imposed the tight schedule, so it would be unfair to punish Sollitt for taking reasonable measures to try to meet that schedule. Plastic enclosures are a customary solution to delays in window procurement. Tr. at 3278 (Mr. Maziarka).

It is also not clear that the plastic enclo­sures caused the windowsills to separate from the underlying masonry. Mr. Zielinski gave credible testimony that the bond be­tween the windowsills and the underlying masonry had deteriorated over the years and that this weakness was fortuitously discover­ed when the plastic enclosures shook some of the windowsills loose. Tr. at 742 (“We just happened to find out early that the sills were rotten.”). The deterioration of the window­sills was a differing site condition for which the Navy was responsible. See Tr. at 3019 (Lt. Odorizzi) (noting that the government was willing to pay for windowsill reinforce­ment but “would have preferred” to pay for a different solution than Z-clips).

It is clear from the record that Z-clips were not the Navy’s choice of a method for anchoring the windowsills. See, e.g., Tr. at 740 (Mr. Zielinski) (“We had proposed a Z-­clip, and [the Navy’s architect] proposed a flat strap----”). It is also clear that unless anchoring occurred quickly, substantial dam­age to the existing second story windowsills, and perhaps workers at NTC, would occur. Tr. at 2521 (Lt. Odorizzi) (stating that “the sills are ... big heavy blocks of essentially masonry that had been kicked loose”). The problem was discovered by Sollitt and re­ported to the Navy on October 23,1995. GE 1064. The Navy provided an alternative to the Z-clip solution proposed by Sollitt on October 30, 1995. Id. By this time, however, Sollitt had already installed Z-clips. Id. Eventually, the Navy reviewed the anchored windowsills and directed and paid Sollitt to provide further reinforcement by drilling a hole through each windowsill and the under­lying masonry and cementing in a metal rod. Tr. at 2501, 3020 (Lt. Odorizzi).

Each of the windowsills weighed over a hundred pounds; they had come loose on the second floor of Building 122 and were moving about in windy conditions. Tr. at 740 (Mr. Zielinski), 2522 (Lt. Odorizzi). Sollitt proceed­ed with a timely response to this dangerous hazard. There was no evidence that showed that Sollitt’s choice of Z-elips did not resolve the immediate problem. The court finds that Sollitt was justified in providing the Z-clips to deal with the differing site condition of deteriorated windowsills. Sollitt is awarded $5375 for anchoring Building 122 windowsills with Z-clips.

D. CX 94: Repair Catch Basin near Building 2B

It is undisputed that Sollitt’s plumb­ing subcontractor repaired a deteriorated catch basin near Building 2B. Sollitt claims $1849 for this work that was not included in the contract. Sollitt Br. at 90-91. The par­ties have stipulated that Sollitt paid its plumber $1589 for this work. The plumber’s costs for this work are reasonable, as shown in the cost breakdown for CX 94. SE 99. The only contested issue is whether the Navy was liable for this extra work.

Sollitt did not allege that the Navy direct­ed Sollitt to repair the catch basin. See Sollitt Br. at 90 (stating only that “the Navy representatives knew the work was being done”). Instead, Sollitt represents that a “Type I differing site condition” forced Sollitt to repair the catch basin. Id. Defendant argues persuasively that Sollitt damaged the manhole-covered catch basin by repeatedly running over it with heavy construction ma­chinery. Def.’s Br. at 43; Tr. at 2507 (Lt. Odorizzi). Sollitt did not refute this allega­tion of contractor-caused damage, and Sol­litt’s only witness on this issue offered no explanation for the deteriorated state of the catch basin. Tr. at 744 (Mr. Zielinski). The court finds the Navy’s version of these events to be credible. Defendant’s argument that a contract clause based on FAR 52.236-9, codi­fied at 48 C.F.R. § 52.236-9 (1994) (“Protec­tion of Existing Vegetation, Structures, Equipment, Utilities, and Improvements”), made Sollitt responsible for the costs of dam­age to utilities at the construction site, Def.’s Br. at 43, is also unrefuted. Because Sollitt has not proved the Navy’s liability for the deteriorated state of the catch basin, Sollitt cannot recover any monies for the catch ba­sin repair.

E. CX 103: Provide Access Panels in Building 122 for Fan Coil Valves

Sollitt claims that “[t]he Navy required Sollitt to install 150 access panels [for the maintenance of valves attached to fan coils, air conditioning units built into the walls] in Building 122,” and that “the access panels were not indicated or shown on the contract drawings and constituted extra work.” Sol­litt Br. at 91. The Navy claimed that con­tract specification 15895 required access pan­els for these valves, and refused to pay for this work. It is undisputed that the contract drawings did not show any access panels for these valves, and that access panels were shown elsewhere on the drawings where they were required. Tr. at 749-50 (Mr. Zielinski). The Navy’s argument that it is not liable for the addition of these access panels, based on contract specification 15895, is not credible.

The title of specification 15895 is “Duct-­work and Ductwork Accessories.” JE 94 § 15895 at 1. There were no ducts for the fan coils. Lt. Odorizzi attempted to convince the court that access panel requirements for valves in ducts applied to the valves for the fan coils, by calling the space near a fan coil a “plenum,” which, according to his defini­tion, “is basically a duct that transfers air, only it’s not a metal duct ... just a space within a wall that allows air transfer.” Tr. at 2573-74. If the spaces near the fan coils were indeed plenums, it is perhaps conceiva­ble that some portions of specification 15895 would apply to them, but the court does not need to decide that issue. As Lt. Odorizzi testified upon cross-examination, no air was transferred through these dead air spaces— the air transfer happened directly through the fan coil grills, where outside air was pulled through the machine into the class­rooms of the building. See Tr. at 3022 (“Air is pulled through the grills of the fan coil unit, yes.”). Because the valves for the fan coils were mounted in these dead air spaces next to the fan coil units, not in plenums, specification 15895 could not possibly apply to them.

Because the Navy added 150 access panels to the bid-based contract work, Sollitt is enti­tled to payment for this work. The Navy has not challenged the reasonableness of the costs included in Sollitt’s CX 103, and has stipulated to Sollitt’s payment of $5888 to one subcontractor for its portion of this work, SE 2007 at 4. Mr. Zielinski testified that another subcontractor was paid $2798 for its portion of this work. The court finds that these costs, and the stipulated markups, SE 2007 at 1, are all reasonable costs for adding 150 access panels to the contract work. Sollitt is awarded $9825 for CX 103.50

F. CX 115: Cable Tray Fireproofing in Building 2B

The Navy added contract work for the rerouting of cable trays51 for wiring in Build­ing 2B’s ceilings, and as a result, wherever these cable trays penetrated a firewall, fire­proofing of the penetration was needed. JE 75 (Modification P00043). The Navy added approximately $2309 to the contract price for the fireproofing work for forty-eight pen­etrations. SE 105 (subcontractor Metrick Electric’s estimate for $2035 for fireproofing the cable trays); id. (showing that CX 115 markups for overhead, profit and bond pre­mium would raise Metrick’s costs to about $2309); Tr. at 754 (Mr. Zielinski) (stating that the Navy “paid the entire bill” for this work). This price was a figure negotiated by the parties, although Sollitt did not sign the contract modification. Tr. at 754-55 (Mr. Zielinski) (noting that the Navy reimbursed Sollitt’s initial cost proposal in its entirety).

Metrick left the project, however, and a new subcontractor completed the fireproofing work. Tr. at 2580-81 (Lt. Odorizzi). Based on an estimate submitted by the new subcon­tractor, on April 24, 1997 Sollitt submitted a revised cost proposal for the same fireproof­ing of forty-eight penetrations, and claimed that this work would cost Sollitt $9600, not including markups. SE 384 (Revised CX 115). Sollitt did credit the Navy $2035 for the amount Metrick had estimated and which the Navy had already paid. Id. Defendant does not contest that the Navy was liable for the fireproofing added costs, but does chal­lenge Sollitt’s new claim of $8806 for revised CX 115, on the grounds that it is not “the fair and reasonable value of the work.” Def.’s Br. at 47.

Metrick, on October 9,1995, had estimated that each penetration would cost $23.85 for fireproofing materials and would take fifteen minutes to seal, and that all together it would take twelve hours of labor, at $25.29 per hour, to fireproof all forty-eight penetrations. SE 105. Fireproofing generally consisted of stuffing fire seal bags, also called fire stop pillows, at the firewall penetrations where the cable trays passed through. Tr. at 755-­56 (Mr. Zielinski). Metrick allotted one bag per penetration, because $23.85 was the unit price for one fire seal bag in the price list attached to its estimate. SE 105. Metrick’s estimate of $2035 meant that each pen­etration would cost the Navy about $42.40 to fireproof, before markups, and this was the cost which Sollitt proposed and the Navy paid.

J.P. Larsen, the new subcontractor, was a fireproofing specialist, not an electrical con­tractor like Metrick. Tr. at 759-60 (Mr. Zielinski). Mr. Larsen did not break down his costs, but estimated $200 for each pen­etration that he would seal with fire bags. SE 384. There is no price list submitted for the fire seal bags used, nor is the number of fire seal bags per penetration specified in Mr. Larsen’s estimate, although someone had handwritten “48 bags” on Sollitt’s estimate form accompanying revised CX 115. Id. The date of Mr. Larsen’s estimate is September 23, 1996. The most credible reading of this evidence is that in less than one year, the cost claimed for sealing one penetration with one fire seal bag had soared from $42.40 to $200.

The court would be willing to revise Sol­litt’s costs upward because they were mistak­enly undervalued, even if the undervaluing was done by Sollitt itself prior to commenc­ing the work, if Sollitt had proved that its increased costs were reasonable. Sollitt has not shown that the costs claimed in revised CX 115 were reasonable, and no presumption of reasonableness may be afforded its pay­ment to its subcontractor for this work. Sol­litt’s initial estimate of approximately $2309 for this work continues to be the best esti­mate of reasonable costs for this work, and Sollitt has already been paid this sum. Be­cause Sollitt has not met its burden to prove the reasonableness of the costs claimed, an equitable adjustment cannot be granted for this issue.

G. CX 120: Dewatering during founda­tion stabilization of Building 2B

This claim by Sollitt is related to the dif­fering site condition referred to as the black sand issue, discussed in Count I, Section B-3, and to a different cost proposal, CX 39, dis­cussed in Count VII, which requested pay­ment for the bulk of the foundation work related to the black sand issue. The propos­al discussed here, CX 120, was submitted on September 18, 1996, SE 308, the same day that CX 39 was submitted, SE 297. Defen­dant does not contest Sollitt’s entitlement to payment for work added to the contract to deal with the black sand issue. Tr. at 1274.

Dewatering, using pumps and hoses to keep the excavated trench next to the south foundation wall of Building 2B dry, added labor and equipment costs to Sollitt’s founda­tion work. Tr. at 406-08 (Mr. Zielinski). Sollitt claims that the dewatering described in CX 120 was necessitated by a differing site condition largely caused by Navy delays in designing the revised foundation wall52 and by a leaking water main that drained into the trench next to the foundation. Defendant argues that Modification P00055 included reasonable dewatering labor and equipment costs, concluding “that the Navy already pro­vided compensation for this work and that compensation was fair and reasonable.” Def.’s Br. at 48-49.

Sollitt and the Navy have viewed CX 120 differently. The Navy has viewed CX 39 and CX 120 as forming a unified proposal for added work due to the black sand issue, Tr. at 2582 (Lt. Odorizzi), and in Modification P00055 the Navy included two dewatering expenses as part of its rationale for a unilat­eral modification to the contract, adding $17,400 as a response to both CX 39 and CX 120. JE 383A at 022. In Sollitt’s view, Modifications P00031 and P00055 produced payments that partially paid for foundation work described in proposal CX 39, and these payments served only to reduce the Navy’s balance due on CX 39 and did not pay for work described in CX 120. See Count VII. The court has adopted Sollitt’s view and granted almost all of Sollitt’s claimed costs in Count VII because these represented an un­paid balance on CX 39 work, and the court credited the $17,400 in Modification P00055 as one of the Navy’s partial payments on CX 39. Thus no additional credit remains to be extracted from the $17,400 in Modification P00055-it has been fully used to meet the Navy’s responsibility under CX 39.

What remains is an issue of quantum. De­fendant argues that $417 for twenty man hours of labor and $250 for equipment is reasonable compensation for the dewater­ing.53 Sollitt argues that $3440 for 165 man hours of labor, $250 for equipment and $18 for water testing are the baseline costs for the dewatering. Sollitt’s claim under CX 120, with all fringe benefits and markups included, totals $6734.

Testimony from Mr. Zielinski established that water drained into the trench beginning with the initial excavation, continuing until the ground froze in winter, and then starting again in the spring. Tr. at 906-08. Testing of the water was apparently done in Novem­ber 1995, see SE 308 (testing bill dated No­vember 13, 1995), and that testing showed that the water came from a water pipe, Tr. at 907. According to Mr. Zielinski, the Navy was alerted to the leaking water main but chose not to fix it. Tr. at 907. Labor includ­ed digging sump holes and moving and con­necting hoses and pumps. Tr. at 908.

Lt. Odorizzi confirmed that there was wa­ter in the trench and that dewatering had to be done. Tr. at 2582. He confirmed that the dispute over the labor estimate was pri­marily concerned with “what reasonable ef­fort to control the water” was required, but Lt. Odorizzi did not explain how his calcula­tion of man hours was reasonable. Tr. at 2583. There was no further testimony on this issue at trial.

The documentary evidence is sparse. There is a bill for $18 for the water testing. The DCAA audit found that, in general, the claimed costs in this and other outstanding cost proposals were actually expended. JE 231 at 2, 17. The DCAA audit also did not challenge any of Sollitt’s fringe benefit fig­ures or markups. Id. at 14. The Navy “Pre Negotiation Position Memorandum” on this issue justified its smaller man hour figure by estimating that only one half hour would be needed at the beginning of each construction day, and another half hour at the end of each construction day, to monitor and pump out water. JE 383A at 022. Sollitt did not provide a specific rebuttal of this estimate, relying instead on its 165 man hour estimate in its cost proposal. SE 308.

The court notes that the water came from a source under the Navy’s control. Aecord­ing to Mr. Tipton’s analysis of the work schedule on the foundation of Building 2B, it appears to the court that the trench was open during three construction months, early November 1995 to early January 1996, and early April to early May 1996. JE 235 Issue 204. According to the same analysis, it ap­pears the trench was also open during the three initial delay months, from August 2, 1995 to November 6, 1995. Id. During the first two delay months caused by the Navy, inspectors, testers and engineers needed ac­cess to the foundation. Sollitt-caused delays occurred largely in October 1995 when noth­ing appears to have been happening in the trench. Assuming that no dewatering oc­curred during the winter months of further delay, dewatering may have been necessary for as many as five months, depending on when the ground froze.

Under defendant’s analysis, dewatering was only necessary during four weeks of construction (one hour per day times twenty days of construction). JE 383A at 022. This dewatering estimate appears to the court to be too low. The court agrees that Sollitt’s audited cost proposal is more accurate and better represents the reasonable costs of de­watering. Sollitt is granted $6734 for CX 120.

H. CX 138: Dowel Pinning for Build­ing 122 Coping

The limestone coping that capped the ma­sonry walls at the parapet of Building 122 was removed and replaced by Sollitt, as part of the contract work. Tr. at 911-12 (Mr. Zielinski). The contract drawing labeled “Existing Parapet Detail” instructed Sollitt to “remove existing [limestone] cap, clean and re-install dowel[s].” JE 279 at A806. Dowels in this case are metal rods fastened in drilled holes in the limestone cap and underlying masonry to secure the limestone cap and reinforce its stability. Tr. at 3030 (Lt. Odorizzi). As Sollitt’s subcontractor dis­covered, however, there were no dowels hold­ing the coping in place. SE 124 (undated handwritten note from Horizon Builders Cor­poration, Sollitt’s masonry subcontractor, stating that “when the coping was removed it was discovered that no dowels or holes in coping existed”). Although there is no evi­dence that Sollitt gave written notice of this differing site condition to the Navy, there is evidence that the Navy eventually received actual notice of the missing dowels. See Tr. at 3031 (Lt. Odorizzi) (stating that “they didn’t bring it to our attention until after they had put the dowel pinning in place and asked us, through an RFI: is this how you want it done?”). The real controversy here is whether Sollitt gave timely notice of the differing site condition, and if not, whether the Navy was prejudiced by lack of timely notice of this differing site condition.

Testimony and documents covering this is­sue were sparse. Lt. Odorizzi’s version is that he was presented with a fait accompli, because Sollitt’s subcontractor drilled holes for and installed new dowels before Lt. Odor­izzi and the arehiteeVengineer representative could visit the parapet of Building 122. Tr. at 3032. Lt. Odorizzi also testified that if given timely notice, the Navy’s solution might have been to install no dowels whatso­ever. Tr. at 3035 (“So if the [old] coping didn’t require dowel[]ing to begin with, no need to put dowel[]ing in this [new cop­ing].”). Sollitt’s version is that “[t]he Quality Control Manager for the project was made aware of the condition” and that “its subcon­tractor had to replace certain dowels which were required to reset the roof coping of Building 122.” Sollitt Br. at 94. Mr. Zielin­ski testified that Sollitt “did not have the ROICC office’s direction [to install dowels], and [that he] believe[d] the only way [the Navy] knew that this was happening was through the Q[uality]C[ontrol] manager.” Tr. at 1106. The quality control manager was not a Navy employee, and was paid by Sollitt. Tr. at 913 (Mr. Zielinski).

The evidence before the court does not show that Sollitt gave the Navy notice of the missing dowels before adding extra work to the contract, as required by the Differing Site Conditions clause. See 48 C.F.R. § 52.236-2(a), (c) (1994) (“No request by the Contractor for an equitable adjustment to the contract under this clause shall be al­lowed, unless the Contractor has given the written notice required [before the conditions are disturbed] ----”). Neither party pre­sented evidence of an RFI submitted to the Navy for this issue, so it is impossible to tell when notice may have been given to the Navy. Sollitt also did not establish a date for when its masonry contractor installed the dowels. The court finds that the testimony of Lt. Odorizzi and Mr. Zielinski shows that the Navy had notice of the missing dowels but that this notice was untimely.

“In order to prevail in a case in which notice [of a differing site condition] has not been provided on a timely basis by the contractor, the government has the burden of proving that the untimeliness caused preju­dice to its ease.” Big Chief Drilling Co. v. United States, 15 Cl.Ct. 295, 303 (1988) (cit­ing H.H.O. Co. v. United States, 12 Cl.Ct. 147, 164 (1987) and Gulf & W. Indus. v. United States, 6 Cl.Ct. 742, 755 (1984)). The Navy has shown that it was prejudiced by the lack of timely notice, because Sollitt’s solution for the missing dowels may have been entirely unnecessary, or a lower cost solution might have been preferred. Tr. at 3031-32 (Lt. Odorizzi) (explaining that the existing coping had survived several years without doweling, and that “a lot of times masonry joints are tapered in such a way as they are held in place with the mortar and gravity basically”); see Schnip Bldg. Co. v. United States, 227 Ct.Cl. 148, 645 F.2d 950, 959 (1981) (approving and quoting a board of contract appeals’ decision that rejected a con­tractor’s claim because “ ‘[t]he lack of a time­ly notice was prejudicial to the Government because it effectively prevented any verifica­tion of [the contractor’s claim of a differing site condition] and also the employment of alternate remedial procedures’ ”).

Because Sollitt has not proved that the Navy was liable for this extra work that Sollitt performed without direction from the Navy, Sollitt cannot recover the costs of dow­el pinning the parapet coping on Building 122. No monies are awarded Sollitt for CX 138.

I. CX 147: Replace Unsuitable Soil at Building 2B

Sollitt claims that it encountered a Type I differing site condition of unsuitable soil hidden underneath asphalt when excavat­ing Building 2B’s foundation. Sollitt paid $2150 to its subcontractor to remove some allegedly unsuitable soil and replace it with rock. SE 2007; SE 364 (Revised CX 147). Mr. Zielinski testified that the unsuitable soil at Building 2B required removal. Tr. at 919-21. Sollitt did not prove, or attempt to prove, however, that this particular soil dif­fered materially from what was indicated in the contract documents. “Success on a Type I Differing Site Conditions claim turns on the contractor’s ability to demonstrate that the conditions ‘indicated’ in the contract differ materially from those it encounters during performance.” P.J. Maffei Bldg. Wrecking Corp. v. United States, 732 F.2d 913, 916 (Fed.Cir.1984) (footnote omitted).

Even if Sollitt had proved the exis­tence of a Type I differing site condition, Sollitt provided no evidence that it gave the Navy notice of this issue. There is no RFI in the record asking for the Navy’s direction on this issue, and Mr. Zielinski could not remember if he gave the Navy notice of this issue, Tr. at 1109. Sollitt alleges CX 147, a cost proposal for added work replacing the unsuitable soil, was submitted on April 15, 1996, Sollitt Facts If 425, but did not enter CX 147 into evidence. Instead, Sollitt en­tered Revised CX 147 into evidence, which was submitted on April 11, 1997, well after contract work was completed. SE 364. There is also no evidence in the record that permits the court to determine whether the costs claimed in Revised CX 147 were rea­sonable.

Sollitt did not establish sufficient facts to prove that there was a Type I differing site condition, that it gave notice of this issue to the Navy or that the Navy had actual notice of this issue. Sollitt has not proved that the Navy was liable for any extra work related to this issue, or that its costs for this work were reasonable. No monies are awarded to Sol­litt for CX 147.

J. CX 149: Reroute Exhaust Fan Duct-­work per RFI 119

In this instance the Navy does not chal­lenge its liability for work performed. The only dispute regarding CX 149 is whether Sollitt’s claimed costs exceeded reasonable costs for a change to contract work involving rerouted ductwork for an exhaust fan in Building 122. Tr. at 922 (Mr. Zielinski); Tr. at 2597 (Lt. Odorizzi). The Navy paid $988 for this work, JE 87 at 7, whereas Sollitt’s proposed costs were $1538, JE 129. The Navy contends that Sollitt’s claimed costs of materials were too high, because scrap duct materials should have been reused, and that design costs should not have been included in CX 149. Def.’s Br. at 53; Tr. at 2597 (Lt.Odorizzi).

Mr. Zielinski’s testimony that scrap pieces of duct were not suitable for this work that involved as much as thirty linear feet of new duct was credible. Tr. at 1109. Lt. Odoriz­zi’s contention that any design costs should have been covered by Sollitt’s overhead markup was not further explained to the court. The design cost was a line item on a subcontractor invoice which Sollitt was re­quired to pay in order to complete the changed work — this cost does not appear to be accounted for in Sollitt’s overhead charges. Because the subcontractor’s pro­posed cost of $1355 for this changed work was reasonable, and because Sollitt is enti­tled to stipulated markups for overhead, profit and bond premium, SE 2007 at 1, Sollitt was entitled to payment of $153354 for this changed work. Sollitt is awarded $545 for CX 149, the difference between $1533 and the Navy’s payment of $988.

K. CX 165: PC 56 Damper Revisions in Building 122

The only dispute regarding CX 165 is whether Sollitt’s claimed costs are reasonable costs for a change to contract work involving revisions to ventilation dampers in Building 122 and furring55 out walls to accommodate ventilation equipment that did not fit the space designed for it. Tr. at 925-26 (Mr. Zielinski). Competing versions of the dis­pute state either that Sollitt made the mis­take of walling in and doing finish work over ventilation components before final changes were made affecting them, Tr. at 2614 (Lt. Odorizzi), or the Navy made the ventilation system changes after drywall and paint had been applied to cover up the areas affected by the changes, Tr. at 1112-13 (Mr. Zielin­ski). The Navy paid $1930 for this work, JE 87 at 3, based on its analysis of Sollitt’s cost proposal, and the Navy largely disallowed costs related to ripping out and repairing drywall and finish painting, JE 383A at 110-­176. The parties stipulated that Sollitt paid its subcontractors a total of $10,049 for this work, SE 2007, and Sollitt asserts that $13,898 was a reasonable value for the changed work, Sollitt Br. at 98, a figure which includes $2033 for Sollitt’s own work, id. at 97, and stipulated markups for profit, overhead and bond premium, SE 2007 at 1. Sollitt now claims a balance due of $11,968.

If there had been only one revision to the dampers and ventilation equipment for Build­ing 122, the Navy’s rejection of the costs of tearing out drywall, disposing of drywall, re­pairing drywall and repainting drywall would be more credible. But the documentary evi­dence submitted by the parties refers to revisions that occurred both in December 1995 and January 1996. JE 383A at 175-76 (RFI 138 response dated Dec. 19, 1996 con­cerning furring out of walls); SE 346 (sub­contractor estimates dated Jan. 22 and 25, 1996 referring to a Guernsey memorandum dated Jan. 3, 1996 related to damper revi­sions). In addition, Mr. Zielinski testified that the January 3,1996 Guernsey memoran­dum changed a prior RFI response concern­ing dampers in Building 122, which indicates that an earlier revision to this system had also occurred. Tr. at 928-29. Because of the multiple revisions made to the ventilation system in Building 122, the court finds that Sollitt is entitled to the costs associated with uncovering and covering up changed work.

Therefore, the court finds that the figure of $13,625,56 the total of Sollitt’s stipulated payments to subcontractors of $10,049, Sol­litt’s claimed costs of $2033 for its own work, and stipulated markups, represents the rea­sonable value for the changed work in CX 165. Because the Navy only paid $1930, Sollitt is awarded $11,695 for CX 165.

L. CX 208: Revise Folding Partition Head Installation

The dispute here is whether a change to contract work involving a redesigned installa­tion around the top or head of a folding partition wall in Building 2B was caused by a conflict between contract specifications and drawings or by contractor installation error. Compare GE 1027 (RFI 186) (stating that the partition head “may require additional framing, labor, etc____[because] [structural steel is lower than finished ceiling heights”) with Tr. at 2631 (Lt. Odorizzi) (“Because [the partition head] wasn’t installed per the con­tract drawings, something had to be rede­signed for it.”). The Navy’s response to RFI 186 was to offer a solution to the dimensional problem, GE 1027, and Lt. Odorizzi admitted that his initial analysis of this problem was that this redesign was a potential change to contract work, Tr. at 3040. The court agrees with that initial assessment that this was a Navy-caused and Navy-directed change to contract work for which the Navy is liable.

There was no evidence that could be read to show contractor error in the variance that occurred between the ceiling height and the partition head height. Instead, Lt. Odorizzi pointed to an alleged variance between the width of one horizontal piece of steel as installed versus its depiction in the contract drawings. Tr. at 2630-31 (comparing GE 1027 and JE 279 Part B at A709 Detail 1). Although this alleged variance may have been a contractor error, the problem created by the contract drawings and specifications was an unrelated gap between the partition head and the ceiling, a cosmetic issue which Sollitt brought to the Navy’s attention in RFI 186.

After the Navy’s arehiteet/engineer repre­sentative looked at the problem area, he created a sketch of a proposed solution which solved not only the gap problem, but which also solved an undetected design flaw, the lack of any sound barrier above the ceiling to prevent noise from traveling over the parti­tion when it was closed. GE 1027; Tr. at 933 (Mr. Zielinski). Sollitt implemented this so­lution and requested $819 for this work in Revised CX 208. SE 290. The parties have stipulated that Sollitt paid its subcontractor $698 for this work. The court has reviewed the costs for labor and materials and mar­kups in Revised CX 208 and finds that these are reasonable. Sollitt is awarded $819 for the change to the partition head installation.

M. CX 230: Cypher Lock Revisions in Building 2B

As discussed in Count I Section B-6, the court found that wiring the cypher locks was part of the contract work as bid. No costs may be awarded Sollitt for wiring the cypher locks. Although the outlet added to each junction box caused a small increase in labor and materials to Sollitt, JE 382 at 100188; SE 263, the deletion of labor and materials for the installation of three cypher locks ap­pears to have saved Sollitt more in installa­tion costs, SE 263. Because Sollitt has not proved that the revisions to the cypher lock installation caused a net increase in costs to Sollitt, no money is due Sollitt for CX 230.

N. CX243: Revised Flagpoles

As discussed in the Count I Section A-3 of this opinion, CX 243 attempts to recover costs for revisions to flagpoles installed in front of the Range Buildings. A prior CX 88 was paid by the Navy in Modification P00044 to reimburse Sollitt $1899 of the $1907 re­quested for post-award changes to the re­quirements for these two flagpoles. Here, the court must decide whether the costs for modifying two flagpoles that did not meet the revised requirements provided by the Navy on October 5, 1995, when Sollitt ordered, received delivery and installed these flag­poles in March and April 1996, are costs that are chargeable to the Navy as changes made to the contract. Sollitt claims $4220 for these costs, substantiated by a payment to its flagpole supplier for $3625. For the follow­ing reasons, the court finds that these costs were incurred due to contractor or subcon­tractor error, for which the Navy is not responsible.

It is clear that Sollitt had notice of revi­sions to the flagpoles on October 5, 1995. Sollitt acknowledged those revisions in a cost proposal, CX 88, submitted to the Navy on January 19, 1996. A negotiation in March 1996 produced a compromise figure, $1899 of the $1907 claimed in CX 88, but a dispute related to time extensions for a variety of changes to the contract prevented Sollitt from signing a contract modification at that point. See SE 231 (May 15,1996 letter from Mr. Strong stating that “[a] modification was issued ... including the monies requested from [the flagpole supplier for the revised flagpoles] ... [but] this modification could not be signed by [Sollitt] as it included lan­guage which precluded equitable time exten­sions”). Correspondence between the Navy and Sollitt confirms that after these negotia­tions, Sollitt proceeded “in good faith” to try to procure flagpoles that met the revised requirements. SE 213; SE 231. These let­ters also point to the real dispute in this issue — whether Sollitt’s flagpole supplier “de­livered the wrong poles,” SE 213 (letter from Lt. Odorizzi), or whether the flagpole suppli­er delivered “poles for this project in accor­dance with contract requirements,” SE 231 (letter from Mr. Strong).

Although Sollitt alleges in its post-trial brief that “[a]t the Navy’s direction, the type of flag poles to be installed at the Range Buildings were changed on a number of occa­sions,” this allegation is not supported by any citation to the record or by the evidence before the court. Rather, the one revision of October 5,1995, for which CX 88 was submit­ted and ultimately paid almost in its entirety, is the only flagpole revision substantiated by contemporaneous documents. The Navy’s May 2, 1996 letter simply reiterated the same wind load requirements found in its October 5, 1995 RFI 73 response, and sug­gested that the wrong poles that had been installed should be replaced or modified to meet those requirements. SE 213. The let­ter also mentioned oral conversations regard­ing costs, and included a request that Sollitt submit a cost proposal for “costs as agreed to earlier today.” Id. That conversation was not otherwise memorialized, however.

It may be that Sollitt had an incomplete understanding of the October 5, 1995 revi­sions to the flagpole design. See Tr. at 334 (Mr. Strong) (stating that the installed flag­poles were not “what they [the Navy] wanted ultimately, and we didn’t really define that until it arrived on the job”); Tr. at 935 (Mr. Zielinski) (stating that “[t]he Navy said we had misinterpreted what they wanted [for a flagpole design]”). Sollitt’s witnesses testi­fied that the Navy was changing the flagpole design, not just in wind loading, but also regarding the number of masts; however, this testimony was conflicting and not con­vincing. Compare Tr. at 334 (Mr. Strong) (stating that the original design was for a double-masted pole and that the Navy changed that to a single-masted pole) with Tr. at 935 (Mr. Zielinski) (stating that he thought the Navy “change was to turn it into a double-masted flagpole”); see also Tr. at 2648 (Lt. Odorizzi) (stating that the revisions concerned “changes required to the flagpoles to accommodate the wind-load require­ments”). There is no documentation in the record of a Navy-directed change to the number of masts required for the flagpoles. What is certain is that the flag supplier delivered, and Sollitt installed, flagpoles that met the original design in the contract speci­fications and not flagpoles that met the re­vised requirements. See SE 201 (April 29, 1996 letter from flagpole supplier stating that “the flagpoles provided are in accordance with the approved submittals received by [us]”); SE 231 (May 15,1996 letter from Mr. Strong stating that the flagpoles installed were “in accordance with contract require­ments and approved submittals”); Tr. at 333-34 (Mr. Strong) (stating that “our con­tention [in the May 15, 1996 letter] that the [revisions] created changes and added re­quirements for wind-loading that we didn’t, you know, originally have and ultimately stating that our original responsibility was to furnish a double-masted flagpole, which we did”); Tr. at 1303 (Mr. Zielinski) (“It is my understanding we did provide the flagpole that met the contract documents and we had to modify it.”); Tr. at 1304 (Mr. Zielinski) (stating that the flagpole revisions were “like non-binding direction that I shouldn’t have followed and I should have stuck with my contract documents, which I did do”).

Sollitt had notice of flagpole revisions and did not prevent the delivery and installation of flagpoles which did not meet the revised criteria for these flagpoles. Its flag supplier eventually charged Sollitt for “additional ma­terials, labor, and freight” to retrieve, modify and redeliver the flagpoles. SE 201. Al­though no cost breakdown was provided for CX 243, the court must assume that the $4220 claimed here is at least in part com­prised of charges due to the delivery and installation of the wrong flagpoles. There may be additional costs in CX 243 required by unspecified changes to the flagpole de­sign, but these unspecified changes were not proved at trial. The only changes to the flagpoles that were proved at trial were the October 5, 1995 revisions which were com­pensated in Modification P00044 in the amount of $1899. Sollitt has not met its burden to prove that the costs claimed in CX 243 were for Navy changes to the contract requirements for flagpoles. No money can be awarded Sollitt for this issue.

O. CX 257: Complete Revised Chiller Power in Building 122

Sollitt claims that it encountered a Type I differing site condition when, after it had installed the chiller to serve Building 122, it discovered that the 600 amp electrical service its electricians had wired pursuant to the contract drawings was not sufficient to power the chiller it had installed. Sollitt Br. at 101; Tr. at 155-66 (Mr. Strong). The chiller was a large piece of equipment, approximately 20 feet by 8 feet, and the required cooling ton­nage for Building 122 was considerable, ap­proximately 220 tons. Tr. at 162, 422. It is undisputed that the 600 amp service shown on the contract drawings was not adequate to power the chiller installed by Sollitt.

Sollitt’s argument is that because Sollitt submitted its chiller choice for approval to the Navy and received that approval, this approval led Sollitt to believe that its chiller and the electrical service required by the contract documents and wired by Sollitt’s subcontractor were compatible. Sollitt Br. at 23-24, 55. Sollitt also alleges that the con­struction documents were defective. See id. 1165 (“The Navy responded by providing a solution ... to provide additional electrical work to cure its defective construction docu­ments.”). At trial, Sollitt did not prove ei­ther that it encountered a Type I differing site condition or that the contract documents were defective. But the Navy must never­theless shoulder some of the costs of the revisions to the 600 amp service, for the equitable reasons discussed below.

Sollitt alleges that it encountered a Type I differing site condition in the chiller power design. “Type I differing site condi­tions consist of ‘subsurface or latent physical conditions at the site which differ materially from those indicated in th[e] contract.’ ” Comtrol, Inc. v. United States, 294 F.3d 1357, 1362 (Fed.Cir.2002) (quoting 48 C.F.R. § 52.236-2(a)(1) (1994)). Nothing in the electrical drawings/speeifications or in the chiller specifications refers to subsurface or latent physical conditions at NTC. These con­tract documents reference equipment and wiring that would be installed once contract performance had begun. These are not site conditions.

Even if the court were to consider electrical plans and chiller requirements to be site conditions, Sollitt’s Type I differing site condition claim is defective. The ele­ment that Sollitt alleges creates the “differ­ing site condition” or conflict is the Navy’s approval of the chiller that Sollitt chose, the chiller that proved to be incompatible with the installed 600 amp service. Tr.. at 159. The Navy’s approval of Sollitt’s choice of chiller happened after Sollitt had bid, had been awarded the contract and had com­menced performance. Entitlement to equita­ble adjustments of a contract based on Type I differing site conditions may exist if differ­ences are found when contract conditions, as described in the contract documents, are compared with actual site conditions. Com­trol, 294 F.3d at 1362 (citing H.B. Mac, Inc. v. United States, 153 F.3d 1338, 1345 (Fed. Cir.1998)). The Navy’s approval of Sollitt’s chiller choice could not be a contract condi­tion, simply because this approval occurred after the contract conditions had been fixed by the parties. Sollitt did not encounter a Type I differing site condition in the inade­quate power supply to the chiller for Building 122.

Another liability theory alluded to by Sollitt in passing is one in which Sollitt alleges that the contract specifications relat­ed to the chiller and its power supply were defective. Sollitt Br. H 65. The government implicitly warrants its design specifications for a government construction contract:

It is well settled that where the govern­ment orders a structure to be built, and in so doing prepares the project’s specifica­tions prescribing the character, dimension, and location of the construction work, the government implicitly warrants, nothing else appearing, that if the specifications are complied with, satisfactory perform­ance will result.

J.D. Hedin, 347 F.2d at 241 (citations omit­ted). “[I]f this court finds the cause [of faulty construction] to be a deficiency in a design specification the government would bear the risk, and consequently be liable for reasonable costs incurred by the plaintiff.” Neal & Co. v. United States, 19 Cl.Ct. 463, 467-68 (1990), aff'd, 945 F.2d 385 (Fed.Cir. 1991). Defective design specifications may entitle a contractor to an equitable adjust­ment of the contract for the reparative work required to build a satisfactory end-product.

But not all contract specifications are design specifications — some are merely performance specifications:

Design specifications explicitly state how the contract is to be performed and permit no deviations. Performance specifications, on the other hand, specify the results to be obtained, and leave it to the contractor to determine how to achieve those results.

Stuyvesant Dredging Co. v. United States, 834 F.2d 1576, 1582 (Fed.Cir.1987) (citation omitted). The government does not implicit­ly warrant performance specifications for complete accuracy or adequacy. Id. “[T]ypi­cal ‘performance’ type specifications set forth an objective or standard to be achieved, and the successful bidder is expected to exercise his ingenuity in achieving that objective or standard of performance, selecting the means and assuming a corresponding responsibility for that selection.” J.L. Simmons Co. v. United States, 188 Ct.Cl. 684, 412 F.2d 1360, 1362 (1969).

Here, the chiller specification was a typical performance specification, where the government specified only the result, that of a particular cooling capacity, and Sollitt was left the discretion to install an appropriate chiller. See Tr. at 391 (Mr. Strong) (admit­ting that “the specifications spell ou[t] cer­tain requirements for a chiller unit identify­ing characteristics they want [but do not] nail down what chiller we’re to provide them”). The electrical service drawing was more spe­cific and detailed and showed a 600 amp service going to the chiller. Tr. at 159-60 (Mr. Strong). This electrical drawing could appropriately be called a design specification. But Sollitt did not prove that the design specification for the 600 amp service for the chiller was defective, because there was no conclusive testimony or evidence stating that the 600 amp service was inadequate for any appropriate chiller.

There was conflicting testimony and evi­dence as to various chiller models and their power needs, but no expert testimony helped guide the court’s analysis of this issue. See SE 233 (Sollitt’s subcontractor’s letter con­cerning chiller models); JE 233 Tab 6 (Guernsey letter concerning chiller power re­quirements); Tr. at 163 (Mr. Strong) (stating his opinion concerning commereially-available chillers but admitting that he was not an electrical engineer). Although doubt was cast upon the adequacy of the 600 amp ser­vice, the evidence as a whole does not estab­lish that the chiller power design specifica­tion was defective. Because it is Sollitt’s burden to prove that the design specifica­tions were defective, this theory of liability also fails.

The court is reluctant, however, to absolve the Navy from all responsibility for costs that Sollitt incurred at least in part due to actions by the Navy. The testimony and evidence before the court show that the chil­ler specifications and the electrical and me­chanical drawings were complex and subject to multiple interpretations. There was un­challenged testimony from Mr. Strong that Sollitt was diligent in discovering and ad­dressing several problems with the chiller design. Tr. at 420. Sollitt chose a standard model from a standard maker of chillers to meet cooling tonnage requirements and sub­mitted this model for approval. Tr. at 162. The Navy approved the chiller that Sollitt selected in June 1995. SE 233. Sollitt’s subcontractor proceeded with electrical work in Building 122. The Navy never notified Sollitt that its choice of chiller could not be powered by the 600 amp service that was called for on the Navy’s electrical drawings for Building 122.

Sollitt had a duty to install a functioning chiller that would serve Building 122. The Navy had a duty to provide a workable de­sign, and to approve Sollitt’s submittals if Sollitt’s submittals would permit that design to work. Both parties neglected these duties to some extent, and extra costs were in­curred to rip out the 600 amp service and install an 800 amp service. Because this particular controversy does not fit neatly into liability under a particular contract clause, the court turns to equitable solutions from controlling contract law. As the Court of Claims stated, in some eases one finds “the general proposition that, when a misunder­standing results from carelessness by both parties to a contract, neither should benefit at the expense of the other.” Cover v. Unit­ed States, 174 Ct.Cl. 294, 356 F.2d 159, 160 n. 4 (1966).

When this principle has been applied in the context of mutual mistakes concerning facts underlying contract performance, one poten­tial remedy is reformation of the contract to share the added costs encountered by the contractor. This equitable remedy was used in National Presto Industries, Inc. v. United States, 167 Ct.Cl. 749, 338 F.2d 99 (1966). The Court of Claims commented that it felt “impelled” to consider an equitable solution because “an innocent mistake ... apparently led the contractor, without fault, to a large loss.” Id. at 107. In that case both parties joined in an erroneous assumption, so the court “divide[d] the cost between the two parties, neither of whom c[ould] be properly charged with the whole.” Id. at 111. Al­though here it is not so much mistake as inadvertence, because both parties shared in causing the added costs, the only just solu­tion is to have both parties bear the burden of their carelessness. Therefore, the court finds the Navy liable for half of the reason­able costs of the chiller power revisions.

The parties stipulated that Sollitt paid its subcontractor Jupiter Electric $16,724 for this work. SE 2007 at 5. Mr. Strong testified that changing the electric service to the chil­ler for Building 122 involved substantial re­wiring and new parts. Tr. at 161, 165-66. Sollitt’s payment to its subcontractor was reasonable for this work. To this payment, Sollitt was entitled to apply stipulated mar­kups for profit, overhead and bond premium. When these markups are added, the reason­able costs for this work total $18,917.57 The Navy is liable for half of this amount, or $9459. Sollitt is awarded $9459 for the chil­ler power revisions.

P. CX 258: Complete Elevator Inspec­tion Revisions

Sollitt was to provide a working, inspected elevator in Building 122 as part of the eon-­tract work. Tr. at 2651-52 (Lt. Odorizzi). The elevator failed inspection for numerous problems cited by the inspector. Tr. at 939-­41 (M[r. Zielinski). Although Mr. Zielinski testified that the inspection failure was the result of construction performed by Sollitt as it correctly followed instructions in contract documents, Tr. at 939, this allegation was not supported by credible proof. Sollitt proved only one conflict between the elevator specifi­cations and the contract drawings. The con­tract drawings showed a sump pump drain located in the elevator pit. See SE 2004 (Guernsey memorandum stating that the drain location on the contract drawings con­flicted with the elevator specifications, be­cause this location violated elevator safety codes referenced therein).58 No other con­flicts between the elevator specifications and other contract documents were supported by credible evidence.

Sollitt submitted a cost proposal, CX 258, on April 11, 1997, well after contract work had been completed, for various work items to bring the elevator into compliance with elevator specifications and to pass inspection. SE 374. There was no work for the sump pump drain relocation in CX 258. See Tr. at 1329 (Mr. Zielinski, reviewing costs included in CX 258) (“I would have expected to see ... the plumber____ I don’t see A & H Plumbing and I would have thought that would have been his work to reroute that elevator sump pump discharge.”). Because the sump pump relocation would have been the only conceivable change to the contract work related to the elevator inspection fail­ure for which the Navy might have been held liable, and because CX 258 contains no costs for that work, Sollitt cannot recover any of the claimed costs in CX 258.

Q. CX 260: Additional Work with Gov­ernment Furnished Equipment on Ship’s Trainer

Sollitt claims that its subcontractor, David Architectural Metals, Inc., spent “additional unanticipated” hours installing equipment on the ship’s trainer, and that these added hours were the result of changes ordered by the Navy in Amendments 14, 18 and 19. The Navy rejected Sollitt’s CX 260, requesting payment of $10,325 for this work, SE 361, as not sufficiently substantiated because the in­formation provided to support the cost pro­posal was incomplete and inadequate. Def.’s Br. at 70. Sollitt currently claims $11,648 for this “added” work. Sollitt Br. H 317. As defendant points out, however, Sollitt did not substantiate this claim at trial.

Sollitt relies primarily on the parties’ joint stipulation that $10,007 was paid to David Architectural with reference to CX 260. Sol­litt Br. H 315 (citing SE 2007 at 5). But the Navy, in signing the joint stipulation, did not admit “Sollitt’s claim of entitlement and claim that the payments represented the fair market value of the reasonable and neces­sary labor and materials inquired to perform the work covered by the respective change proposals (CXs), or that the work was in addition to the contract price.” SE 2007 at 2. Sollitt presented no documentary evidence which would give detail or a breakdown of the $10,007 paid to David Architectural.59 Mr. Zielinski, in the absence of written mate­rials to refresh his memory, only was able to specifically testify to one instance of work that was represented in CX 260, the work to relocate those vertical posts [for a safety rail on the ship’s trainer].” Tr. at 944. When asked for a documentary reference to that change, he added that “I think you’d find it in Amendment 18 or 19 that included moving that safety rail from our obligation to the government.” Id. Amendment 18 did change the obligation to provide the safety line from Sollitt to the Navy. JE 167. No other equip­ment installation tasks that might have been included in CX 260 were described by Sollitt witnesses.

The court notes that another Sollitt cost proposal, CX 213, was submitted August 9, 1996, was titled “Relocate Ship Rail Posts” and was fully paid, according to Sollitt’s ex­hibit entitled “Re-Cap of CX Proposals.” SE 2002. This documentary evidence signifi­cantly weakens the credibility of Mr. Zielin­ski’s testimony on this issue. As to what work might have been represented in Sollitt’s CX 260 that was submitted on April 11,1997, almost a year after the beneficial occupancy date for the ship’s trainer, no facts were established at trial. The two references in Sollitt’s Posh-Trial Brief to this work are vague and cursory: “Additional Work with Government Furnished Equipment on Ship’s Trainer” and “additional unanticipated man-­hours installing government-furnished equip­ment.” Sollitt Br. at 103. Lt. Odorizzi testi­fied that he did not “know which specific work they’re talking about” in CX 260. Tr. at 2655. The court does not know either.

Sollitt has not met its burden to show the Navy’s liability for changes to the contract as claimed in CX 260. No costs can be awarded Sollitt on this issue.

R. CX 278: Add Power Circuits for Air Compressor

On February 27, 1996 Sollitt submitted RFI 187 asking how to connect the “control air compressor” for Building 122 to power, because no electric service was shown on the contract drawings for this piece of machin­ery. SE 261 (attachment to CX 278). The Navy responded on February 29, 1996 with the requested information, but Lt. Odorizzi indicated on the form that no funds would be added for this work because electric power for the air compressor was included in the bid-based contract work. Id. Although a specific contract specification for the air com­pressor in question is not in evidence, it is clear that Sollitt was to provide a connection to electric power for any equipment it install­ed that could only be powered by electric motors. See JE 94 § 16011 H 1.11.1 (“Pro­vide electrical components of mechanical equipment, such as motors ____The inter­connecting power wiring and conduit ... shall be provided as an integral part of the equipment.”); Tr. at 1339 (Mr. Zielinski) (ad­mitting that he had “always known that [he] had the obligation to provide the air com­pressor, [he] just didn’t know where to get the electrical power”). When a specification requires an obvious power connection that has been omitted on contract drawings, the contract drawing should be read to include that omitted item. See 48 C.F.R. § 52.236-­21(a) (1994) (mandatory clause for federal fixed-price construction contracts) (“Any­thing mentioned in the specifications and not shown on the drawings ... shall be of like effect as if shown or mentioned in both.”). Sollitt could not reasonably expect to provide an air compressor without power to run it. The Navy was not liable for adding this connection to power, because it was part of the contract work as bid. Sollitt is awarded no monies for CX 278.

S. CX 306: Building 2B Fire Alarm Revisions

Sollitt presented credible evidence that significant post-award changes were made to the fire alarm system in Building 2B. Tr. at 958-59 (Mr. Zielinski); SE 2006 (Sollitt let­ter of August 2, 1996 informing the Navy that these revisions would be addressed in a later cost proposal). Although some docu­ments are missing concerning the changes, the weight of the evidence indicates that a more expensive system resulted. See SE 373 (Sollitt’s electrical subcontractor letter of January 10, 1997 indicating that the changed system cost Sollitt $7677 more); SE 2007 (stipulation that Sollitt paid Jupiter Electric $7677). There was evidence of correspon­dence from the Navy’s architect/engineer representative that directed Sollitt to change the fire alarm system in Building 2B. SE 2006 (Jupiter Electric letter referencing June 23,1996 Guernsey memorandum chang­ing fire alarm system). Defendant attempt­ed to prove that the fire alarm system “changes” were already included in the speci­fications for Building 2B, but the evidence on this issue showed that those specifications did not encompass the more expensive type of system to which Jupiter Electric referred in its subsequent bill to Sollitt. See Tr. at 960 (Mr. Zielinski) (describing the changes as “[g]enerally, Building 2B now becomes a hard wired fire alarm system”); Tr. at 3049 (Lt. Odorizzi) (agreeing that a fire alarm system described as a “hard wired” system is more expensive); SE 2006 (Jupiter Electric July 2, 1996 letter predicting additional costs and referencing the “result of a change to the fire alarm equipment from an addressa­ble system to a hard wired system on June 23, 1996”); JE 94 Part B § 16722 H 2.1.1 (specification showing that the original sys­tem design was an “addressable” system).

Because the Navy changed the fire alarm system in Building 2B to a more expensive - system, the Navy is liable for the reasonable value of the added work. Jupiter Electric’s bill for $7677 appears to be reasonable. Sol­litt also claimed costs for its own work on this issue, which was time spent by Mr. Zielinski in facilitating the design change implementation. Tr. at 960 (Mr. Zielinski); SE 373 (itemizing meeting times with the Guernsey representative and “field coordina­tion w/sub”). Mr. Zielinski’s time for duties of this nature is also charged in Sollitt’s field overhead costs for any of Sollitt’s own work that may have been performed during the same time and that was reimbursed, JE 231 at 9-10 (DCAA audit), and because the dates of his facilitation are not reported with any certainty, the court finds Sollitt’s own work costs for this issue to be uncertain and specu­lative and will not allow them. Sollitt’s rea­sonable costs for this work are thus $7677, plus stipulated markups. The reasonable value of the fire alarm system revisions for Building 2B is $8684, and Sollitt is awarded this amount for CX 306.

T. CX 315: Drywall Repair for Relief Air Revisions

Sollitt claims that there were additional drywall repair costs associated with the Building 122 relief air revisions described in Count XI, for which the Navy was found liable. Sollitt’s initial cost proposal for that work expressly “excluded patching,” SE 163 (CX 202), which is the claim here in CX 315, SE 291. The proof that Sollitt submitted with its cost proposal CX 315, id., includes a subcontractor bill for work described as “cut­out/remove gypsum board/frame openings,” which are the related costs of patching walls after the relief air revisions were accom­plished. Because the Navy was liable for the relief air revisions, and because Sollitt’s stip­ulated payment to its subcontractor of $736, SE 2007 at 5, was reasonable for work re­quired by the relief air revisions, Sollitt is entitled to payment for this work. After stipulated markups, SE 2007 at 1, are applied to $736, the reasonable value of this work is $833. Sollitt is awarded $833 for CX 315.

U. CX 319: Cost for Navy Utilizing Sol­litt’s Dumpsters

Sollitt claims that the Navy utilized some of Sollitt’s dumpsters and also left rubbish to be removed by Sollitt, so that Sollitt incurred labor and dumpster costs for which it is entitled to reimbursement. For proof, Sollitt offered a complaint letter dated August 15, 1996, alleging these facts in one sentence. SE 296 (CX 319). Sollitt also offered an estimate of costs incurred, prepared several months later by Mr. Zielinski on April 10, 1997, which stated that seventy-two hours of labor and two dumpster rental amounts were chargeable to the Navy for this issue, al­though no specificity was included as to when this labor occurred or how much waste vol­ume was represented by the dumpster charges. SE 371 (attachment to CX 319 of April 11, 1997). Sollitt has proved neither liability nor reasonableness of costs for this issue.

Sollitt referred to this issue as a differing site condition, Sollitt Br. K 339, but has made no attempt at proving a Type I or Type II differing site condition claim. It is possible that Sollitt is pursuing an adjustment based on purely equitable grounds not tied to any contract provision. Sollitt did provide credi­ble testimony that some of the Navy’s follow-­on contractors left boxes in Sollitt’s dump­sters in the summer of 1996. Tr. at 965-66 (Mr. Zielinski). The Navy, however, argued that Sollitt had used some of the Navy’s dumpsters without authorization during the course of construction. Def.’s Br. at 77. The court cannot determine from the record which party was more at fault in using the other’s dumpsters. Sollitt bears the burden of proving liability for its equitable adjust­ment and has not done so.

The estimate of dumpster charges and rubbish removal costs prepared by Mi’. Zie­linski after the fact lacks specificity and cred­ibility. Lt. Odorizzi testified that he received one complaint call about packing boxes in Sollitt’s dumpsters, but that he was unable to verify the facts of the complaint because he was told that the dumpster had been emptied before Mr. Zielinski made the call. Tr. at 2677, 2683. It appears that the Navy did not have timely notice of the problem which would have allowed the Navy, and the court, to determine the extent of the dumpster misuse. Because the record does not estab­lish the Navy’s liability for or the reasonable costs for the work alleged in CX 319, Sollitt cannot recover any monies for CX 319.

Y. CX 349: Relocate Transformers De­spite RFI 206 Response

Sollitt claims that it was directed by the Navy’s architect/engineer representative to relocate two transformers which had already been installed, and now claims that it is entitled to reimbursement for this work. This claim is not supported by the prepon­derance of the evidence presented by the parties. The Navy’s response to Sollitt’s RFI 106, which notified the Navy that Sollitt had installed two transformers in a location that “will not meet code requirements,” GE 1030 (RFI 106), was that Sollitt was to leave the transformers in place, id. Sollitt relocat­ed the transformers, against Lt. Odorizzi’s direction not to do so. See Tr. at 1369 (Mr. Zielinski) (stating that “apparently I must have misread [Lt. Odorizzi’s] direction be­cause I thought he wanted it moved”).

The response to RFI 106 is not unclear, and specifically rules out relocation work. GE 1030. On March 19, 1997, Mr. Zielinski wrote a letter to its subcontractor that re­viewed an invoice for the relocation work claimed in CX 349 and stated:

We [Sollitt] have reviewed your invoice ... and have found no substa[ntia]tion for a Change Order. Referenced in your pro­posal is RFI # 106. RFI # 106 directs Jupiter Electric not to relocate the trans­formers ____

SE 349. The Navy is not liable for the relocation work, because the Navy reviewed Sollitt’s request for direction and responded within three days, GE 1030, and gave di­rection to Sollitt to leave the transformers where they were. Sollitt is awarded no mo­nies for CX 349.

W. CX 352: Complete Miscellaneous Electrical Work in Building 122 Area C Room 154

Sollitt asserts that Lt. Odorizzi directed Sollitt to add electrical work in Room 154 of Building 122 Area C. Sollitt Br. 11346. At trial, Lt. Odorizzi had no memory of a con­versation he is alleged to have had with Mr. Zielinski on this topic, Tr. at 2697 (“I can’t recall providing direction. I can’t say that I didn’t ... ”), but Mr. Zielinski gave a credible description of the conversation where the electrical work in Room 154 was discussed, Tr. at 981-82 (“I believe Lieutenant Odorizzi said that you couldn’t have a room without these kinds of things and it was manifestly necessary and he directed me to add these devices.”). Sollitt claims that its subcontrac­tor added “additional switches, receptacles, lights and wir[ing for] an electrical heater in Room 154,” pursuant to this direction. Sol­litt Br. H 346. Of the miscellaneous electrical work described in CX 352, however, only certain items were proved to be work added by the Navy to the bid-based contract work.

Jupiter Electric, Sollitt’s electrical subcon­tractor, wired the electric heater in Room 154. SE 342 (CX 352). The electric heater was on the mechanical drawings for this room, but wiring for this heater had been omitted on the electrical drawings. Tr. at 1375 (Mr. Zielinski). Providing electricity for an electric heater is manifestly necessary. It is undisputed that the standard Depart­ment of Defense construction contract clause titled “Contract Drawings, Maps, and Speci­fications,” 48 C.F.R. § 252.236-7001(d) (1994), was part of this contract, and this clause places the burden on the contractor to correctly install “manifestly necessary” work items, despite omissions or mistakes in con­tract drawings. This provision states that “[o]missions from the drawings or specifica­tions or the misdescription of details of work which are manifestly necessary to carry out the intent of the drawings and specifications, or which are customarily performed, shall not relieve the contractor from performing such omitted or misdescribed details of the work, but shall be performed as if fully and correctly set forth and described in the draw­ings and specifications.” 48 C.F.R. § 252.236-7001(d). Wiring the heater was not changed or added work, because it was work required by the contract as bid.

Jupiter Electric also provided and wired two “receptacles,” which appear to have been duplex electrical outlets which receive electri­cal cord plugs. SE 342; Def.’s Mem. at 120. It is undisputed that the receptacles were on the electrical drawings and were required by the contract. Def.’s Mem. at 120; Tr. at 1375 (Mr. Zielinski) (reviewing the Navy’s reasons for rejecting the claim for these items shown on the contract electrical draw­ings and commenting “how [the receptacles] got in [CX 352], I’m not so sure about that part”). The receptacles were not a change to the contract, either.

But the lights in Room 154 and the switch to operate the lights were added by Lt. Odorizzi’s direction. Tr. at 1375 (Mr. Zielin­ski) (stating that Lt. Odorizzi gave direction on the heater wiring and then “he threw in that we had to have the light and the switch hook up, too”). The lights and switch were not on any of the contract drawings, Def.’s Mem. at 121, and the evidence does not show that these were manifestly necessary, Tr. at 1374 (Mr. Zielinski) (stating that Room 154 was a small corner room); Def.’s Mem. at 120 (stating that Room 154 contained me­chanical and plumbing lines which required heat, but not stating that Room 154 necessar­ily required permanent light fixtures). Be­cause the Navy added the lights and switch, the Navy is liable for the cost of this added work.

The underlying documents for CX 352 are not sufficiently detailed to allow the court to determine exactly which of the material and labor costs cited therein are related to lights and switches, and which are related to costs for which the Navy is not liable. See SE 342. But the Jupiter Electric documents underly­ing CX 352 do indicate that six work items required two electricians for three workdays; of these six work items, three are related to lights and the switch to operate them. Id. Also, the material costs for the lights appear to be among the more expensive items in the subcontractor’s bill. Id. For these reasons, the court is satisfied that approximately half of the costs claimed in CX 352 are reasonable costs for the material costs and installation costs of the lights and switches for Room 154, for which the Navy is liable. Sollitt claimed $2197 for CX 352, a figure which was supported by its stipulated payment to Jupi­ter Electric of $1943, SE 2007 at 6, and its stipulated markups for profit, overhead and bond premium, SE 2007 at 1. Sollitt is award­ed $1099, or about half of what Sollitt claimed, for CX 352.

X. CX 355: Repair Frozen Coil in Building 2B Air Handler

The evidence submitted in support of this claim was confusing and not persuasive. First, Sollitt refers several times to CX 355 as pertaining to work done on Building 122, not Building 2B. See SE 2007 at 6 (showing stipulated CX 355 payment to Landis & Gyr to “Repair Frozen Coil in Building 122 Air Handler”); Sollitt Br. at 109 (title of CX 355 claim refers to Building 122, not Building 2B). Yet, all of the testimony and subcon­tractor documentation on this issue concerns Budding 2B. Tr. at 986, 1379 (Mr. Zielinski); SE 356 (CX 355). Second, although Mr. Zielinski described CX 355 as being related to frozen coil incidents on December 26,1996 and January 13, 1997, Tr. at 986, the CSM Mechanical bill for work done on those dates to “repair heating coil,” SE 356, is not the work for which Sollitt is currently requesting payment. Sollitt Facts at 84. Instead, Sol­litt’s claimed costs for CX 355 of $1724 are mostly attributed to Sollitt’s own work for “service calls and repair coordination,” SE 356 (showing subtotal of $969 for Sollitt’s own work), and a lesser amount of $580 for sixteen hours of “fitter” labor by Landis & Staefa with no specified dates, id., with add­ed markups for overhead and profit, Sollitt Facts H 576. Upon this record, Sollitt has not shown that its claimed costs for CX 355 are reasonable, because the underlying docu­ments for CX 355 and the testimony regard­ing the frozen coils are inconsistent with Sollitt’s claimed costs.

Third, the Navy’s liability for this work was not proved. Opposing theories were presented as to why the coils froze, and as to who was responsible for the damage caused. See, e.g., Tr. at 986 (Mr. Zielinski) (stating that “[o]ur information reported that the rea­son the coil froze is that somebody closed the steam valve”), (Lt. Odorizzi) (“The outside air damper was not properly calibrated in terms of when it was supposed to open and when it was supposed to close. Thus, it allowed freezing air to come in and caused the coil to freeze.”). Neither theory was a clear winner.

Mr. Zielinski initially gave the impression that all this trouble occurred six months after Sollitt had completed work at NTC, Tr. at 986, but he later testified that Sollitt might have been doing warranty and “punch-list” work in Building 2B at the time the coil froze, Tr. at 1377. Thus, the “somebody” who might have left the steam valve closed is an open question. There was no persuasive evidence as to who might have been responsi­ble for a closed steam valve.

There may have been continuing problems with “calibration,” which would support Lt. Odorizzi’s theory. See SE 356 (CSM Me­chanical’s bill for work done on January 13, 1997) (stating that the work included “check freeze STPT sequence” and “cheek operation of HTS water coil control values”). Also, the Navy presented an argument that Sollitt had continuing responsibility for a fully opera­tional heating system at the time the coil froze, Def.’s Mem. at 121-22, and this argu­ment was not rebutted. For all of these reasons, the court cannot determine what caused the frozen coils, nor can it determine who was responsible. Sollitt did not meet its burden to show that the Navy was liable for the costs claimed in CX 355, or that the costs claimed for this work were reasonable. Sol­litt is awarded no monies for CX 355.

XV. Count XVI: Interest on Invoice Pay­ments Which the Government Dis­puted

In Count XVI, Sollitt seeks Prompt Payment Act, 31 U.S.C. §§ 3901-3907, inter­est for “delayed payment of the amounts retained by the Navy from Sollitt’s monthly payment requests.” Sollitt Br. at 110. This claim is predicated upon this court finding that “Sollitt is entitled to the extensions of time it seeks in this case,” Sollitt Supp. 11. The court did not grant any time extensions to this contract. Because Sollitt was not granted any time extensions to the contract period by this court, its claim for interest penalties on payments delayed by contract completion is seriously undermined.

Even if Sollitt had been granted an equita­ble adjustment extending the time of con­tract performance, it still would not be enti­tled to Prompt Payment Act interest for the delayed or withheld payment of portions of its monthly invoices. Sollitt alleges that the Navy delayed or withheld payments of Sol­litt’s monthly invoice amounts for two rea­sons: “anticipated liquidated damages” and “delayed performance.” Sollitt Br. at 110. The retention of liquidated damages is clear­ly evidenced in the record of invoice pay­ments, see, e.g., Sollitt Supp. Tab 10 at 572, and the court notes that this retention consti­tutes the Navy’s assertion of a dispute over its liability for these withheld amounts. Al­though the alleged “delayed performance” retention is less clear from the record, per­haps because Sollitt elicited no testimony on this issue that was identified as pertaining to Count XVI, any retention due to delays in contract performance also evidences a dis­pute between the parties as to when the Navy was liable for certain portions of Sol­litt’s monthly invoices. Disputed contract payment amounts are subject to Contract Disputes Act interest, 41 U.S.C. § 611, not Prompt Payment Act interest. E.g., Gutz, 45 Fed.Cl. at 298. Because Prompt Payment Act interest is not applicable to Sollitt’s claims in Count XVI, no recovery may be had under the legal theory presented in Count XVI.60

XVI. Count XVIII: Loss of Potential Contract Award Fee

Pre-award Amendment 0007 provided for $600,000 as a performance award fee for Sollitt if it “complied] with contractual re­quirements and performance at the satisfac­tory level in each of the individual criteria set forth in the specification.” JE 28 § 01010 H 1.7.1(a). Five time periods for the evalua­tion of contract performance were set by the contract, with a specific maximum award fee “pool” available for each period, and the con­tract also specified that no potential award monies from one evaluation period pool could carry over to another period. Id. H1Í 1.7.1(a)-­(b). Although the terms “unilateral” and “dis­cretion” are not included in the contract lan­guage, the plain meaning of the description of the evaluation process, as excerpted here, makes it clear that the award fee decision was agreed to be unilateral and discretionary on the part of the government:

The Contractor’s failure to maintain ac­ceptable levels of performance in all areas of this contract, whether specified as award fee areas or not, will result in no award fee being issued.

A Fee Determination Official (FDO) will be appointed to determine the amount of award fee, if any, to be pa[i]d to the Con­tractor____ The decision of the FDO is final and shall not be subject to the Dis­putes Clause.

Id. ¶¶ 1.7.1(a), (e).

Any changes to the award fee determina­tion criteria which shall apply during each award fee period will be provided to the Contractor in writing by the Contracting Officer at least fifteen (15) calendar days prior to the start of each award fee period.

A rating below satisfactory in any of the individual criteria will result in no award fee pa[i]d to the Contractor.

JE 23 § 01010 KU 1.7.1(d)-(e) (Pre-award Amendment 0002). Because unilateral dis­cretion was granted to the Navy in determin­ing the award fees for the five evaluation periods, the court reviews the award fee determinations based on Sollitt’s contract performance to see if these determinations were arbitrary or capricious. Burnside-Ott, 107 F.3d at 860.

Sollitt does not contest the award fees issued for Periods One and Two, but argues that Sollitt’s performance for Periods Three, Four and Five was “unfairly and improperly evaluated.” Sollitt Br. at 114. For each of these three evaluation periods Sollitt re­ceived zero dollars in performance award fees. Id. Hf 364-65. Sollitt asks the court to review the merits of the government’s deci­sion on the grounds that timeliness was the primary criterion, id. at 113 (“The contract provided certain criteria for determining Sol­litt’s entitlement to the Award Fee, the pri­mary one being timeliness of performance.”), and that this criterion was unfairly rated, in Sollitt’s view, because “the Navy, rather than Sollitt, was the cause of the delayed comple­tion of the [pjroject.” Id. at 114. The court rejects this line of argument.

First, the government’s award fee determination is not reviewable on the mer­its. Bumside-Ott, 107 F.3d at 860. Even if it were, timeliness of performance appears to be only one of four criteria specified in the contract, and there is no proof that timeli­ness was the primary criterion. See JE 23 § 01010 at 6-8 (showing four criteria of per­formance: timely performance, quality of work, management, and community issues, but showing no weighting of these criteria). In addition, delays of both parties to the project were concurrent and intertwined, so it is not clear that Sollitt would have received a satisfactory score for timeliness even if the Navy delays had not occurred. For example, a sub-part of the timely performance criteri­on stated that “[p]rogress schedule has been submitted and approved in accordance with the provisions of the contract and accurate updated progress schedules have been sub­mitted with each invoice thereafter.” Id. at 6. The court notes that Sollitt’s contract per­formance was deficient in this area. For all of these reasons, the court rejects Sollitt’s argument that the award fees of Periods Three, Four and Five were improper because of negative ratings in timeliness. The court finds that the Navy’s evaluation of Sollitt’s contract performance was not arbitrary or capricious.

Sollitt also attempted to prove that the Navy’s award fee determinations were, in one instance, proeedurally irregular. Sollitt claims that because the Navy removed $70,000 from the Period Three award fee pool on March 29,1996, the Navy breached a contract term regarding the evaluation pro­cess. If this was a material breach, however, it was excused by Sollitt’s prior material breach. See Christopher Village, L.P. v. United States, 360 F.3d 1319, 1335 (Fed.Cir. 2004) (“The contract law question is whether [a plaintiffs] established and uncontroverted breach was sufficiently material so as to jus­tify the government’s subsequent breach.”).

Period Three began 236 days after the contract award, and ended 345 days after the contract award, and had $175,000 in its award fee pool. JE 28 § 01010 K 1.7.1(b). Period Three, according to the court’s calcu­lation, started on October 21,1995 and ended on February 7, 1996; these dates are con­firmed by the Navy’s report to Sollitt of the award fee for this period. See JE 205 (award fee determination letter of October 15, 1996) (stating that the start date of Peri­od Three was October 21, 1995 and that the end date reflects that “[t]his Award Fee Pe­riod Three was to coincide with completion of Phase [I],” which was originally scheduled for February 7,1996). Part of the award fee evaluation process included a self-evaluation by Sollitt, due fifteen calendar days after the end of each evaluation period. JE 28 § 01010 H 1.7.1(c). Sollitt’s self-evaluation for Period Three was dated April 19, 1996, almost two months late. SE 193.

So, although the FDO fee award determi­nation normally would consider Sollitt’s self-­evaluation beforehand, JE 28 § 01010 111.7.1(c), this self-evaluation was late. The FDO was also authorized by the contract to “take such other aetion and consider such other facts pertinent to the Contractor’s per­formance as is required to determine the adjective rating and the amount of the per­formance award fee for the evaluation period under consideration.” Id. In light of Sollitt’s late self-evaluation, the Navy’s action to re­move a portion of the pool available to Sollitt for Period Three at the end of March 1996, before receiving Sollitt’s self-evaluation three weeks later, is not improper. At this point in time, the FDO had sufficient data to predict that the “timely performance” criterion was not going to be rated satisfactory, and this alone would necessarily trigger the contract provision mandating a zero award fee for Period Three. See JE 28 § 01010 111.7.1(e) (“A rating below satisfactory in any of the individual criteria will result in no award fee pa[i]d to the Contractor.”). In fact, for Peri­od Three Sollitt eventually received unsatis­factory or marginally satisfactory ratings for three out of the four criteria, JE 205, and any one of these below satisfactory ratings would have been enough to deprive Sollitt of all of the $175,000 in the pool. Although the FDO was not following the evaluation pro­cess to the letter, his action is excused by Sollitt’s material breach of submitting a late self-evaluation and thus was not arbitrary or capricious.

Because the Navy’s determination of per­formance award fees was not arbitrary or capricious, Sollitt’s claim for additional per­formance award fees fails.

XVII. Count XIX: Interest on Sollitt’s Successful Claims

Although Sollitt alleges that Prompt Pay­ment Act interest applies to “all unpaid claims addressed in this brief and for which the Court finds entitlement in favor of Sol­litt,” Sollitt Br. at 115, the claims upon which Sollitt prevails are subject only to Contract Disputes Act interest, 41 U.S.C. § 611, as discussed in Count XVI, because Sollitt’s claims were disputed by the Navy. See 31 U.S.C. § 3907(e) (not requiring a Prompt Payment Act interest penalty where the gov­ernment disputes its liability for payment, and indicating that such disputed claims are subject to the CDA interest provision). Ac­cording to 41 U.S.C. § 611,

[ijnterest on amounts found due contrac­tors on claims shall be paid to the contrac­tor from the date the contracting officer receives the claim pursuant to section 605(a) of this title from the contractor until payment thereof.

Id. Sollitt filed its CDA claim with the Navy’s contracting officer on October 3,1997. Thus, CDA interest, as provided under 41 U.S.C. § 611, begins to run on October 3, 1997 and ends on the date of the government’s pay­ment to Sollitt of the sum awarded in the judgment detailed below.

CONCLUSION

For the reasons set forth herein, it is hereby ORDERED that:

(1) Defendant’s Motion in Limine, filed July 7, 2003 is DENIED as stated at trial.

(2) Plaintiff shall be AWARDED an equi­table adjustment increasing the Navy’s contract payment responsibility by $551,056, as shown in the calculation below.

Count I, Phase I: $ 89,600

Count I, Phases II and III: $145,600

Count VI: $ 809

Count VII: $ 72,612

Count VIII: $ 17,565

Count IX: $ 3,020

Count X: $ 6,898

Count XI: $ 615

Count XIV: $ 2,038

Count XV:

CX 18 $156,616

CX 47 $ 615

CX 91 $ 5,375

CX 103 $ 9,825

CX 120 $ 6,734

CX 149 $ 545

CX 165 $ 11,695

CX 208 $ 819

CX 257 $ 9,459

CX 306 $ 8,684

CX 315 $ 833

CX 352 $ 1,099

TOTAL ' $551,056

(3) Additionally, plaintiff shall be AWARDED interest on $551,056 from October 3, 1997 until it receives pay­ment for this judgment, at a rate de­termined by 41 U.S.C. § 611.

(4) The Clerk is directed to ENTER final judgment for plaintiff in the amount of $551,056, plus interest.

(5) No costs.

1

. Filings include Sollitt Statement of Issues of Fact and Law (Sollitt Issues), Sollitt Memoran­dum of Contentions of Law (Sollitt Law Mem.), Sollitt Memorandum of Contentions of Fact (Sollitt Facts), Defendant's Memorandum of Contentions of Fact and Law (Def.'s Mem.), Agreed Statement of Facts filed July 16, 2003 (Agreed Facts), Sollitt Post-Trial Brief (Sollitt Br.), Defendant's Post-Trial Brief (Def.'s Br.), Sollitt Reply to Defendant’s Post-Trial Brief (Sollitt Reply), and Sollitt Motion to Reopen Case for Admission of Additional Documents into Evidence (Sollitt Supp.). When quoting plaintiff, "SOLLITT” has been altered to "Sol­litt.”

2

. Sollitt’s fact witnesses included Mr. Donald Maziarka, the company’s president at the time of contract performance and chair of Sollitt’s board of directors at the time of trial; Mr. Howard Strong, the company's vice president for field operations at the time of contract performance and Sollitt's president at the time of trial; and Mr. James P. Zielinski, the company's sole pro­ject manager for this project at the time of con­tract performance and a Sollitt vice president at the time of trial. Sollitt also called Mr. Matthew J. Stahl, a former civilian employee of the Navy based at Great Lakes, Illinois, who was Deputy Resident Officer in Charge of Construction (ROICC) there until his retirement on April 15,” 1996. Both Sollitt and the Navy called Lt. George E. Odorizzi, whose rank in 1995-96 is unknown, who was the project manager of this project for the ROICC, a role he described as “the primary liaison between the contracting of­ficer, the ... architect/engineer [A & E, in this case C.H. Guernsey & Company (Guernsey) ] and the contractor.” Tr. at 2349. Mr. Zielinski and Lt. Odorizzi had extensive knowledge and memo­ry of construction activities on the project and their testimony was especially valued by the court.

3

. Mr. Samuel Tipton was Sollitt’s expert on delay claims and produced two expert reports, JE 233 and JE 235. Mr. Wayne R. Dorn was the Navy’s expert on the same issue and produced one ex­pert report, JE 382.

4

. Defendant’s pre-trial motion in limine was de­nied on the first day of trial, Tr. at 6-10.

5

. By September 4, 1996, Sollitt had substantially completed work on the contract, although specif­ic benchmarks of completion are disputed by the parties.

6

. Counts III and XVII have been entirely with­drawn, and portions of Count XV have been withdrawn.

7

. Although the parties did not proffer evidence that this clause is in the contract at issue here, the standard Suspension of Work clause was then and continues to be required by regulation. See 48 C.F.R. § 52.212-12 (1994) ("As prescribed in [Section] 12.505(a), insert the following [Sus­pension of Work] clause in solicitations and con­tracts when a fixed-price construction or archi­tect-engineer contract is contemplated .... ”); 48 C.F.R. § 42.1305(a) (2004) ("The contracting officer shall insert the clause at 52.242-14, Sus­pension of Work, in solicitations and contracts when a fixed-price construction or architect-en­gineer contract is contemplated."). Defendant cites cases for their propositions concerning re­coveiy under the Suspension of Work clause. Def.’s Br. at 13-14, 16. Because of the regulato­ry requirement to include the standard Suspen­sion of Work clause, and because plaintiff has failed to challenge the government’s presumptive inclusion of the clause, the court finds that the contract here included the standard Suspension of Work clause, now codified at 48 C.F.R. § 52.242-14 (2004) with no changes to the rele­vant text. Similarly, the court finds that the standard Differing Site Conditions, 48 C.F.R. § 52.236-2 (1994) (unchanged in relevant part at 48 C.F.R. § 52.236-2 (2004), and Changes, 48 C.F.R. § 52.243-4 (1994) (identical text at 48 C.F.R. § 52.243-4 (2004))), clauses were includ­ed in the contract at issue in this case. See Def.’s Mem. at 5 (asserting that ”[t]he contract includ­ed standard construction contracts clauses, in­cluding ... FAR 52.243-4, Changes”); JE 35 (Modification P00002) (contract modification signed by both parties citing authority of the Differing Site Conditions Clause); JE 36 (Modifi­cation P00003) (contract modification signed by both parties citing authority of the Changes Clause). These clauses also have been the source of compensable delay recoveries in government construction contract litigation, see Coley Props. Corp. v. United States, 219 CL Cl. 227, 593 F.2d 380, 385 (1979) (finding liability for delay dam­ages under the Changes clause); Baldi Bros. Constructors v. United States, 50 Fed.Cl. 74, 78-­79, 83, 85 (2001) (awarding delay damages un­der the Differing Site Conditions clause), but will not be addressed in the court’s analysis here.

8

. The exact definition of concurrent delay is not readily apparent from its use in contract law, although it is a term which has both temporal and causation aspects. Concurrent delays affect the same "delay period.” See Tyger Constr. Co. v. United States, 31 Fed.Cl. 177, 259 (1994) ("In cases of concurrent delay, where both parties contributed significantly to the delay period by separate and distinct actions, justice requires that the cost of the delay be allocated between the two parties proportionally."). A concurrent delay is also independently sufficient to cause the delay days attributed to that source of delay. See Beauchamp Constr. Co. v. United States, 14 Cl.Ct. 430, 437 (1988) (noting that a concurrent action "would have independently generated the delay during the same time period even if it does not predominate over the government’s action as the cause of the delay” (citations omitted)).

9

. The United States Court of Claims offered this definition of "critical path”:

Essentially, the critical path method is an effi­cient way of organizing and scheduling a complex project which consists of numerous interrelated separate small projects. Each subproject is identified and classified as to the duration and precedence of the work.... The data is then analyzed, usually by computer, to determine the most efficient schedule for the entire project. Many subprojects may be per­formed at any time within a given period without any effect on the completion of the entire project. However, some items of work are given no leeway and must be performed on schedule; otherwise, the entire project will be delayed. These latter items of work are on the "critical path." A delay, or acceleration, of work along the critical path will affect the entire project.

Haney v. United States, 230 Ct.Cl. 148, 676 F.2d 584, 595 (1982).

10

. Such a stipulation establishes the daily cost of unabsorbed home office overhead costs allocated to the project in question, a figure normally calculated by using what is known as the Ei­chleay formula. "The Eichleay formula is used to calculate the amount of unabsorbed home office overhead a contractor can recover when the government suspends or delays work on a contract for an indefinite period.” P.J. Dick, 324 F.3d at 1370 (citing Melka Marine, Inc. v. United States, 187 F.3d 1370, 1375 (Fed.Cir.1999) (cit­ing Eichleay Corp., ASBCA No. 5183, 60-2 B.C.A. (CCH) H 2688, 1960 WL 538 (July 29, I960))). This sort of stipulation also obviates, when it is accompanied by proof of entitlement to delay damages under the Suspension of Work clause, the requirement for "separate proof of entitlement to Eichleay damages [for unabsorbed home office overhead],” if the stipulation predi­cates stipulated damages solely on liability under the Suspension of Work clause. Id. at 1374-75. Although the stipulation at issue here, SE 2007 at 1, does not specify which type of entitlement would trigger the stipulated daily rates for ex­tended home office overhead, the court will treat the stipulation as having predicated recovery solely on liability under the Suspension of Work clause, because in this case the result would be the same under either Eichleay entitlement or stipulated Suspension of Work entitlement. The "separate proof" normally required to establish Eichleay entitlement for extended home office overhead is a showing that the contractor was on standby, and may also require a showing that the contractor was unable to take on other work. PJ. Dick, 324 F.3d at 1374-75. These "separate proof” issues have not been addressed by the parties.

An extended field office overhead claim, which requests damages for costs that are increased due to maintaining a presence at the construc­tion site for a longer period than originally antic­ipated in the bid, requires different proof than a claim for unabsorbed home office overhead cal­culated using the Eichleay formula. As this courted noted in Blinderman, 39 Fed.Cl. at 587 n. 56 (citing Wickham Contracting Co. v. Fischer, 12 F.3d 1574, 1575, 1581 (Fed.Cir.1994)), home office overhead is an indirect cost whereas field office overhead is a direct cost. A plaintiff must prove government liability under the Suspension of Work clause for delay to project completion, and also must prove the extent of its increased field office overhead costs. "[F]ield office over­head costs ..., like other direct costs, require specific proof of proximate causation (as well as the quantum of damages).” Id. (citing Wickham, 12 F.3d at 1581). Here, liability is contested and the extent oí any government-caused delay is disputed, but the daily costs of field office over­head have been established by the stipulation of the parties, SE 2007 atl.

11

. Another reasonable formula, when the gov­ernment has caused more delay days to the criti­cal path activities than the contractor, would be to subtract the contractor-caused delays from the government-caused unreasonable delays and to multiply the resultant figure by the stipulated overhead daily cost,

12

. In 1995, however, these revisions had not yet been made. Therefore, this court must apply the holding of Bumside-Ott to the specific contract language agreed to by the parties in this case to determine the nature of the discretion afforded the Navy by this language. See infra Count XVI­II.

13

. Although it would be more accurate to refer to the critical path for Phase I construction and the critical path for Phases II and III construc­tion, the court abbreviates these as "the critical path of the project” when speaking in general terms about this case.

14

. Sollitt relies principally on Fortec, 8 Cl.Ct. at 505, for support for its argument that the Navy cannot now benefit from inaccurate CPM sched­ule updates because the Navy was tardy in grant­ing time extensions and the lack of those time extensions rendered Sollitt’s CPM schedule up­dates inaccurate. Fortec held, however, that the Army Corps of Engineers could not rely, in its defense against a claim for an equitable adjust­ment to extend the completion date of a con­struction contract, upon the single CPM schedule update provided by the contractor during the course of construction as proof of the critical path, when specific contract provisions prevent­ed the contractor from adding time extensions to that CPM schedule update without Corps approv­al, and when Corps approval had not been timely given. Id. at 507-08. The court noted:

The Government's reliance upon the CPM [schedule] in denying Fortec's claims is clearly misplaced____[N]either party appears to have used the CPM [schedule] in evaluating contract performance. Since Fortec's CPM [schedule] was revised only once during performance [of one year], and then without regard to the effect of prior delay claims on the project not ac­knowledged by the Corps, its use after the fact as a gauge for measuring time extensions plainly is improper.

Id. Not only is Fortec factually distinguishable in that the evidence of governing contract language and testimony concerning the actual use and updating of CPM schedules was different in that case than the evidence before the court here, id. at 505-07, but the inaccurate CPM schedule up­date there was used by the government, not the contractor, to establish the critical path, id. Here, the contractor, not the government, is rely­ing on inaccurate CPM schedule updates for its time extension claim, and the equitable concern expressed in Fortec does not apply with the same force. Finally, the court notes that Fortec does not appear to have addressed the distinction be­tween entering delaying events as opposed to entering time extensions into a CPM schedule update. See infra text accompanying note 16. To the extent that Fortec might be read to hold that not entering time extensions into a CPM schedule as the delaying events occur renders those CPM schedule updates inaccurate for es­tablishing the critical path of the project, 8 Cl.Ct. at 506, the court notes that Fortec is not binding precedent. Further, a more credible reading of Fortec is that the combination of missing time extensions and missing revisions to the critical path rendered the one CPM schedule update in that case inaccurate. See id. at 505 (“The Corps ... refused to grant timely and adequate time extensions and to authorize revisions to the CPM to reflect the changed performance critical path. As a result, it is impossible to determine from the CPM diagram whether a particular activity was critical or noncritical, on schedule or behind schedule.”) (emphasis added).

15

. Of course, time extensions may have an effect on progress payments, which are based on how well a contractor is progressing toward timely completion of the project, as noted in Weaver-­Bailey Contractors, Inc. v. United States, 19 Cl.Ct. 474, 1990 WL 10845 (1990):

[The witness] explained that there is no incen­tive for a contractor to submit projections re­flecting an early completion date. The govern­ment bases its progress payments on the amount of work completed each month, rela­tive to the contractor’s proposed progress charts. A contractor which submits proposed progress charts using all of the time in the contract, and which demonstrates that work is moving along ahead of schedule, will receive full and timely progress payments. If such a contractor falls behind its true intended sched­ule, i.e., its accelerated schedule, it will still receive full and timely progress payments, so long as it does not fall behind the progress schedule which it submitted to the govern­ment.

Id. at 479. Each of Sollitt’s two baseline CPM schedules showed a critical path that would be completed on the completion date set by the contract. SE 569; Tr. at 494 (Mr. Zielinski); Def.'s Mem. at 7, 25. Without a timely grant of a time extension, if Sollitt entered a delaying event on its CPM schedule update without the corre­sponding time extension that was granted later, Sollitt would appear to be further behind on the schedule than it actually was. See Tr. at 141 (Mr. Maziarka) (agreeing with plaintiff’s coun­sel’s statement that, without the entry of a time extension, the CPM schedule “might show that it was late when it really wasn't”). Although this fact presents a possible motive for not updating CPM schedules accurately to reflect delays until a time extension is granted, it does not justify failing to fulfill the contract requirement of pro­viding updated CPM schedules that were accu­rate.

16

. Although the timeliness of the granting of time extensions by the Navy is not essential to the court’s analysis, the court notes that Sollitt sometimes failed to justify its requests for time extensions with adequate and timely documenta­tion. See GE 1004 (letter from the Navy to Sollitt stating that the generic phrase, "we here­by request an equitable time extension,” without more, found in over a dozen Sollitt change pro­posals, was not adequate justification for a time extension). When Sollitt provided adequate jus­tification, such as an updated CPM schedule re­flecting delays to the critical path, at least in one instance the Navy approved overtime pay as its preferred solution for getting the project back on schedule. See Tr. at 508-09 (Mr. Zielinski) (stat­ing that he had done an updated CPM schedule in a face-to-face meeting with the Navy in which he entered "actual amounts of time that we knew as history now” for delaying events, and soon afterward overtime was approved). Sollitt even­tually provided more detailed narratives of de­lays experienced during construction, but not until many months had passed. SE 207 (justifi­cation provided for delays encountered on Build­ing 122 from approximately June 1995 through January 1996, submitted on May 1, 1996); SE 260 (justification provided for delays encoun­tered on Building 2B from approximately June 1995 through April 1996, submitted on June 19, 1996). For these reasons, the court finds that Sollitt has not shown that the Navy unreasonably delayed its granting of time extensions to Sollitt. See Tr. at 381-83 (Mr. Stahl) (stating that the Navy could not grant time extensions without justification, and that in this contract, updated CPM schedules showing the delaying events would have been the type of justification re­quired).

17

. A fourth contention regarding work on relief air ventilation allegedly delaying completion of Areas A & B of Building 122 has been dropped because no liquidated damages were assessed by the Navy for that portion of the project. Sollitt Br. at 23. A fifth contention regarding delays allegedly caused by temporary fencing design changes has also been abandoned by Sollitt. Tr. at 570.

18

. Some of the data has been altered in format. and some figures have been rounded off.

19

. The court acknowledges that at the beginning of the project, two critical paths were reported on separate CPM schedules, one ending February 7, 1996 for Phase I construction, the other end­ing May 31, 1996 for Phases II and III construc­tion. However, when the Navy granted different time extensions to different portions of Phase I construction, see SE 2015, the different contract completion dates within Phase I construction may be seen as splitting the Phase I critical path into two critical paths, for the purposes of ana­lyzing the application of liquidated damages. Area C had, after these contract modifications, a contract completion date of April 16, 1996, dif­ferent from the rest of Phase I construction, which ultimately had a March 29, 1996 contract completion date. It is the Area C critical path that is discussed here.

20

. Mr. Dorn’s analysis of this issue, while thor­ough and helpful in many respects, did not quan­tify any delays related to the revisions of the ship's trainer, and also did not account for the different contract completion dates for Area C and other parts of Phase I construction. See JE 382 at 48-49.

21

. Mr. Tipton estimated that fifiy-nine calendar days of delay would be chargeable to the Navy for this issue. Because the court has accepted the beneficial occupancy date and the modified contract completion date for Area C, as shown in Table 1, as accurate, Sollitt’s contract perform­ance, in the context of liquidated damages, could have, at most, been delayed twenty-eight calen­dar days by this issue. The court cannot find more days of delay to the critical path than were actually experienced by the contractor. Mr. Tip-­ton’s analysis was not similarly constrained. See Tr. at 1762 (Mr. Tipton) (stating that his figure is "what [Sollitt] would have been justified in ask­ing for [as of November 1995],” not a figure which reflects delayed performance that ended on May 14, 1996). Plaintiff’s counsel stated and Mr. Tipton agreed that "the 59 days is the delay in completion of the project because of this event, not the delay itself." Tr. at 1762. The logic, or illogic, of this aspect of Mr. Tipton’s methodology for estimating critical path delays is not adopted by the court.

22

. The chiller here was mounted outside Build­ing 122 and provided cool water to heat ex­changers which air-conditioned the building. Tr. at 155 (Mr. Strong).

23

. "[T|he range buildings were [new construc­tion and were] two ... single-story structures[] that were separated by a football field and a half ... that had facilities for various communication between the two ... [and personnel would be] able to signal utilizing flags and other ways ... simulating visual communication say between ships.” Tr. at 321-22 (Mr. Strong).

24

. A glass curtain wall is a wall composed entire­ly of windows separated by a grid of supporting structural members. See Tr. at 122 (Mr. Maziar­ka) (defining the curtain wall construction here as “installing aluminum framing ... and you put glass in this aluminum framing ... [a]nd that total assembly of the aluminum framing and the glass is referred to in our industry as a curtain wall”). Although regular windows and the win­dows in a glass curtain wall are similar, the court will distinguish them here for purposes of clarity by referring either to windows, by which it means windows installed in masonry walls, or curtain walls.

25

. The Navy rounded off the total of liquidated damages to eliminate one cent. SE 2015.

26

. Sollitt provided expert and other lay witness testimony in support of quantified equitable ex­tensions of the contract completion date for each of these seven circumstances. Although Sollitt also alluded to other delays allegedly caused by the Navy or by unforeseen conditions, see Sollitt Facts at 35-41, these other circumstances were not quantified as to their delaying effect and were not accorded significant weight in the court’s critical path delay analysis.

27

. Type I differing site conditions are "subsur­face or latent physical conditions at the site which differ materially from those indicated in this contract.” 48 C.F.R. § 52.236-2(a)(1) (1994).

28

. The contractor’s duty to inquire into patent ambiguities has recently been described by the Federal Circuit:

An ambiguity will only be construed against the government if it was not obvious on the face of the solicitation and reliance is shown. If the ambiguily is patent, it triggers a duty to inquire. A patent ambiguity is one that is "obvious, gross, [or] glaring, so that plaintiff contractor had a duty to inquire about it at the start.” If an ambiguity is obvious and a bidder fails to inquire with regard to the provision, his interpretation will fail.

NVT Techs., Inc. v. United States, 370 F.3d 1153, 1162 (Fed.Cir.2004) (citations omitted).

29

. The government’s cost estimates do not con­trol over specifications or drawings, when those specifications or drawings are clear. See, e.g., Walter Y. Arakaki, General Contractor, Inc., ASBCA No. 42,536, 92-1 B.C.A. (CCH) ¶ 24,369, 1991 WL 186184 (Sept. 5, 1991) (“[A] contractor whose bid includes no cost for work plainly specified in. a drawing because the work is not explicitly mentioned in the contract bid items or pay items, cannot recover for extra work or a constructive change order.”). But here, it is not clear from either the drawings or specifications that lead abatement work and associated costs were anticipated.

30

. As it was explained to the court, a terrazzo floor is laid by first laying divider strips on the subfloor to contain the different-colored pours of semi-liquid glue and stone, which, when hard­ened, are ground down and polished to a hard surface. Tr. at 571 (Mr. Zielinski).

31

. Mr. Dorn's concession was not clearly stated in work days, but his testimony and report indi­cate that this figure represents work days, not calendar days. See Tr. at 3153 (stating that prior to the April 1996 CPM schedule update "you can assume each [terrazzo] floor would be [approxi­mately] 20 work days, which is one [calendar] month”); JE 382 at 39 (describing how in the April CPM schedule update the changed terrazzo work, including the addition of an activity for fill, "grew from 18 [work] days per floor to 30 [work] days").

32

. Mr. Tipton's testimony was that terrazzo floor installation "precludes” finish trades from work­ing in that corridor or adjacent rooms. Tr. at 1806. But the fill work, filling in only the low spots in corridors, might not have as great a preclusive effect. See id. (Mr. Tipton) (appar­ently distinguishing between the preclusive effect of terrazzo installation on other trades working along that corridor, and the more limited effect of adding fill to the corridor subfloor because access might not be totally blocked).

33

. This narrative justification is not the critical path analysis upon which Sollitt’s time extension claim is now based, but it is evidence of Mr. Zielinski’s appraisal, as of June 19, 1996, of the delays related to the addition of fill to the corri­dor subfloors. Tr. at 996-97 (Mr. Zielinski).

34

. Access flooring is a raised floor that allows easy access through removable panels to items such as computer wiring. Tr. at 588-89 (Mr. Zielinski).

35

. Sollitt never established exacdy how much extra work was required by the additional access flooring. One of the underlying documents pre­sented mentioned the addition of access flooring in two classrooms, JE 233 Tab 13 (Navy’s re­sponse to RFI 108), but the court was never apprised of the size of those rooms or their percentage of the square footage of Building 2B’s second floor.

36

. A cypher lock includes a numbered keypad for code entiy, and a controller box which sends electrical current to the door hardware to unlock the door if the correct code is entered. Tr. at 2639 (Lt. Odorizzi).

37

. Smoke dampers are operable barriers within ventilation ducts consisting of metal blades or vanes which should close to prevent smoke from spreading throughout a building when smoke has been detected. Tr. at 604 (Mr. Zielinski); Tr. at 2567-68 (Lt. Odorizzi).

38

. The absence of electric circuits to serve the smoke damper actuators has a possible explana­tion because either pneumatic or electric smoke damper actuators were permitted by the smoke damper specifications. GE 1019 H 2.5.2.

39

. This figure was variously reported to the court as eighty-one calendar days, Sollitt Br. Ex. 2, or sixty-five calendar days, JE 235 Issue 206 (Mr. Tipton's expert report). The discrepancy in these numbers is explained by Sollitt’s use of two dif­ferent contract completion dates, either June 17, 1996 or May 31, 1996, from which it measured the beginning of the delay experienced in com­pleting the project. Compare JE 235 Issue 206 with Sollitt Br. Ex. 2. To prevent confusion, the court uses only one set of figures for Sollitt’s estimates of critical path delays, those reported in detail in JE 235, Mr. Tipton's updated analy­sis.

40

. The contract’s liquidated damages term, it should be noted, treated all of Phase II construc­tion, that is all of Building 2B, as one project for which delays to substantial completion would trigger damages specified at a daily rate of $3900. JE 23 (Pre-Award Amendment 0002). The Navy broke up the assessment of liquidated damages for this building into two-thirds for the upper two floors, and one-third for the first floor. SE 2015. The discrepancy between the Navy’s assessment formula and the contract term is of no consequence to the court’s analysis here, which voids any assessment of liquidated dam­ages for Phases II and III construction.

41

. Mr. Maziarka made a passing reference to a third delay due to "miscellaneous work that we completed on [Bjuilding 122, Area C,” and Mr. Zielinski, on cross-examination, referred briefly to a two-or three-day delay due to the removal of soft soil from the footprint of Area C, Tr. at 1464, 1481, but these references were not otherwise supported or explained to the court and have not been accorded any weight.

42

. One possible explanation for the difference between a delay of one week versus a delay of either fifteen or twenty calendar days, is that the delay caused by the asbestos removal may have had a greater effect on other follow-on activities than it had on the exterior masonry. See Tr. at 1468-69 (Mr. Zielinski) (explaining that founda­tion and steel work were not held up by the asbestos removal, although "slab on grades” were delayed). Another explanation could be that the updated CPM schedule was inaccurate in its estimates of start and completion dates.

43

. Although some changes to the steel used in the ship’s trainer were being ordered by the Navy in late August 1995, see JE 126 at 4, 13 (Amendment 14), the delayed structural steel procurement that impacted the exterior masonry is chargeable to Sollitt alone, based on a review of the steel inspection reports, JE 382 at 90-99, and the testimony of all witnesses and experts who discussed the changes to the ship’s trainer. See Count I, Section A-l. There was no testimony or documentary evidence from which it could be inferred that changes to the ship’s trainer de­layed the exterior masonry on Area C.

44

. Sollitt did not argue, in the alternative, that the overtime expenses incurred after January 20, 1996, if found not to have been authorized, would be chargeable to the Navy under a theory of constructive acceleration of contract perform­ance. Sollitt would bear the burden of proving constructive acceleration, Fraser Constr. Co. v. United States. 384 F.3d 1354, 1361 (Fed.Cir. 2004), and it has not met this burden. The Federal Circuit recently described the elements of constructive acceleration:

Although different formulations have been used in setting forth the elements of construc­tive acceleration, the requirements are general­ly described to include the following elements, each of which must be proved by the contrac­tor: (1) that 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 peri­od to which the contractor would be entitled by taking into account the period of excusable delay, after which the contractor notified the government that it 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.

45

. The spreadsheet marked SE 543 is dated July 21, 1999, and is a summary of documents not before the court. It may or may not reflect exactly what was submitted to the Navy in Janu­ary and February 1996.

46

. Mr. Strong's testimony was by stipulation of the parties — the court has no reason to doubt that Mr. Strong would have stated for the record that the cost proposal submitted by Sollitt was accurate and reasonable, because he had so testi­fied repeatedly on other issues during trial, and for this issue he had provided a comprehensive and credible foundation when questioned regard­ing the underlying documents supporting Sollitt's cost proposal. Tr. at 469-74, 3316; SE 2001; SE 2026.

47

. Although the bond premium markup is writ­ten as .062% in CX 39, a typographical error in the court’s opinion, the actual percentage used in the calculations supporting the proposed sum of $123,781 in CX 39 was 0.62%, see SE 297. Thus, 0.62% is the percentage used by the court. The court also notes that the parties have stipu­lated to certain markups to which Sollitt is enti­tied for subcontractor claims, including 7.36% for profit and 0.67% for bond premium. SE 2007 at 1. Here, the court will use the 0.62% bond premium markup to correct the over­charges in CX 39, not 0.67%, because CX 39 used the 0.62% bond premium markup and because Sollitt continues to assert that the figures in CX 39 are "reasonable." See Sollitt Br. II193.

48

. Although the court calculated this amount us­ing Sollitt’s stipulated subcontractor payment and the stipulated markups, this amount is slight­ly lower than plaintiff's figure of $17,685, per­haps due to a calculation error by plaintiff.

49

. Although the court calculated this amount us­ing Sollitt's stipulated subcontractor and attor­ney payments and the stipulated markups, this amount is lower than plaintiff’s figure of $161,166, perhaps due to a calculation error by plaintiff.

50

. The court’s figure is slightly lower than Sol­litt’s figure of $9857 in CX 103, SE 115, because that cost proposal utilized a 1% bond premium markup, as opposed to the stipulated .67% mark­up for bond premium, SE 2007 at 1.

51

. Cable trays are metal troughs which route above-the-ceiling wiring through a building. Tr. at 754 (Mr. Zielinski).

52

. The court found in Count I Section B-3 that the delays in the foundation work on Building 2B were caused both by the Navy and by Sollitt, and that apportionment of any resulting delays to critical path activities was not possible on the record before the court. The court notes that apportioning delays to critical path activities and contract completion is a more complex issue than determining the amount of dewatering re­quired to keep an excavation trench dry when delays have kept the trench open longer than normally would be required.

53

. These are baseline figures before any markups have been applied. The calculations for figures related to this issue eventually used in Modifica­tion P00055 appear to have adopted all of Sol­litt’s proposed markups except for fringe bene­fits. See JE 383A at 023-24.

54

. The court’s figure is slightly lower than Sol­litt’s figure of $1538 in CX 149, SE 129, because that cost proposal utilized a 1% bond premium markup, as opposed to the stipulated .67% mark­up for bond premium, SE 2007 at 1.

55

. Furring is an activity that increases the size of an existing wall cavity, and includes cutting back drywall and studs. Tr. at 926.

56

. The court’s figure for the value of CX 165 work is slightly lower than Sollitt's figure, per­haps due to a calculation error by plaintiff.

57

. Although the court calculated this amount us­ing Sollitt’s figures, this amount is slightly higher than Sollitt’s claim for CX 257, perhaps due to a calculation error by plaintiff.

58

. In the case of a conflict between the elevator specifications and the contract drawings, the specifications would normally have governed, presumably because a standard contract provi­sion titled "Specifications and Drawings for Con­struction,” 48 C.F.R. § 52.236-21(a) (1994), would typically have been part of this contract. This provision states that ”[i]n case of difference between drawings and specifications, the specifi­cations shall govern.” Id. Thus, Sollitt would not have been "building in accordance with the contract documents,” Tr. at 939 (Mr. Zielinski), if it resolved this conflict by following the con­tract drawings and ignoring the elevator safety code specification, if this standard contract clause was in force here. This is an open ques­tion, as neither party has specifically informed the court that this contract provision was incor­porated into the contract at issue.

It is undisputed, however, that the standard Department of Defense construction contract clause titled "Contract Drawings, Maps, and Specifications,” 48 C.F.R. § 252.236-7001(d) (1994), was part of this contract, Def.’s Mem. at 5, and this clause places the burden on the contractor to correctly install "manifestly neces­sary” work items, despite omissions or mistakes in contract drawings. This provision states that ”[o]missions from the drawings or specifications or the misdescription of details of work which are manifestly necessary to carry out the intent of the drawings and specifications, or which are customarily performed, shall not relieve the con­tractor from performing such omitted or misdes­cribed details of the work, but shall be performed as if fully and correctly set forth and described in the drawings and specifications.” 48 C.F.R. § 252.236-7001(d). Installing an elevator that met code was manifestly necessary and was Sol­litt’s responsibility.

59

. Sollitt's counsel noted the lack of detailed cost breakdowns with its CX 260 exhibit, see Tr. at 1336 (observing that the one-page exhibit, SE 361, made reference to included cost break­downs but that these pages were missing), and Sollitt offered to attach the missing pages to SE 361, Tr. at 1384 (stating that two additional pages had been found and that both apparently had been produced by David Architectural), but these additional pages are not in the record before the court. If this exhibit had been com­plete at trial, Sollitt’s fact witnesses might have been able to testify as to what work was repre­sented in CX 260, and this might have aided the court’s analysis of the Navy’s potential liability for work added to the bid-based contract work.

60

. In Count XIX, interest provided by 41 U.S.C. § 611 is awarded for all of the claims upon which Sollitt recovered, including unjustly with­held liquidated damages.