United States Court of Federal Claims.

No. 04-635C.

METRIC CONSTRUCTION CO., INC., Plaintiff, v. UNITED STATES, Defendant.

May 21, 2008.

Steven D. Meaeham, Peel Brimley LLP, Seattle, WA, for plaintiff.

Robert C. Bigler, Trial Attorney, Commer­cial Litigation Branch, Civil Division, United States Department of Justice, Washington, D.C., for defendant in post-trial briefing. With him on the briefs were Jeffrey S. Bu­eholtz, Acting Assistant Attorney General, Jeanne E. Davidson, Director, and Deborah A. Bynum, Assistant Director, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, D.C. For defendant at trial was Brian S. Smith, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Depart­ment of Justice, Washington D.C.

OPINION AND ORDER

LETTOW, Judge.

In this contract case, plaintiff Metric Con­struction Co., Inc. (“Metric”) seeks equitable adjustments and damages respecting two re­lated construction contracts awarded to Met­ric by the U.S. Department of the Navy (“government” or “Navy”) for work on San Nicolas Island, California, one of the Channel Islands located approximately 70 miles off the coast of California. The contracts con­cerned roadways and a Navy airfield on the island. Metric’s claims primarily turn on the Navy’s post-contractual installation of facili­ties on the island that allegedly hindered Metric’s landing of construction materials, but they also involve alleged defective specifi­cations for asphalt at two particular locations on the airfield runway, failure by the Navy to provide contractually promised special com­ponents for the runway, and a requirement that Metric clean-up and remove soils con­taminated through no fault of Metric. Met­ric initially sought a total of $7,906,092.74 in damages, although that amount was later reduced by certain concessions made thereaf­ter.

The court conducted a nine-day trial, first in Seattle, Washington, and then Washing­ton, D.C., with an intervening site visit to the naval installations at Point Mugu, California and on San Nicolas Island.

FACTS1

A. San Nicolas Island

Relatively small and isolated, San Nicolas Island is notable for its restrictive geogra­phy, topography, and usage.2 The island is home to a Naval Air Weapons Station associ­ated with the Navy Air Stations at Point Mugu and China Lake and is also used as a site to train naval aviators for landings on aircraft carriers. The Navy controls access to the island. Roughly seven miles long and three miles wide (over twenty square miles in area), the interior of the island is gently rolling, with steep cliffs and gullies descend­ing to the ocean. See generally National Park Service Pamphlet, www.nps.gov/chis/ forkids/upload/sannicolas2006website.pdf (last visited May 20, 2008). Significant popu­lations of seabirds nest in the cliffs; northern elephant seals, harbor seals, and California sea Hons populate the beaches. Id. (A con­tour map of the island is appended to this opinion.) The most prominent man-made feature is a runway over 10,000 feet in length with an arresting gear at each end to simu­late landing conditions on a Navy carrier. Rainfall is sparse, and the island is covered with desert vegetation. Archeological sites derived from its preexisting native population dot the island. San Nicolas Island often faces high winds, and the surrounding ocean has strong currents and can have large ocean swells. No sheltered harbor or dock is pres­ent. All deliveries to the island must be made by either plane or ocean-going barge suited to land on one of two exposed beaches. After completion of the contracts at issue in this case, the government constructed a barge-landing pier on one of the beaches to improve access to the island for delivery of materials and supplies.

B. The Contracts

Metric’s work as a contractor on the island first began in 1992. Tr. 880:4-6 (Test, of Thomas P. Miller, President, Metric Con­struction).3 In August 1994, Metric was awarded Contract No. N62474-94-C-6807 (the “airfield contract”), entitled Repair Air­field Pavement at the Naval Air Weapons Station on San Nicolas Island, California. PX 2 (Airfield Solicitation, Offer, and Award). This contract called for Metric to make improvements and repairs to the Navy’s airfield runway on the island. In September 1998, Contract No. N68711-98­C-5553 (the “roadway contract”) was award­ed to Metric, entitled Roadway and Storm Drainage Repair Effort at San Nicolas Is­land, California. DX 1008 (Roadway and Airfield Contract Provisions) at 353-60. The plans and specifications for both projects were prepared by the Navy, which adminis­tered the projects. PX 1 (Airfield Repair Plans); PX 2 (Airfield Solicitation, Offer, and Award); DX 1001 (Expert Report of Patti Jones, an expert retained by the government (Aug. 28, 2006)) (“Jones Report”) at 142-43 (Modification P00001 of Roadway Contract); DX 1008 (Roadway and Airfield Contract Provisions) at 353-60.

Both contracts required Metric to ship ma­terials, equipment, and machinery to the is­land by ocean-going barge. DX 1008 (Road­way and Airfield Contract Provisions) at 102. The roadway and airfield contracts adopted Section 01600, Special Clauses Applying Only to Work on San Nicolas Island (“Special Clauses”), to govern procedures for landing materials and operations, including special provisions for use of the beaches and for environmental protection. See DX 1008 (Roadway and Airfield Contract Provisions) at 356. The contract explicitly provided that “the delivery of materials to San Nicolas Island is often the critical activity (longest duration)” affecting performance. Id. § 1011.1.5.1.2, at 43. The materials required for the airfield and roadway contracts includ­ed considerable amounts of aggregate, ce­ment, asphalt, sand, gravel, and other con­struction materials that had to be moved to the island. Metric also had to install con­struction facilities such as an asphalt plant on the island. DX 1008 (Roadway and Airfield Contract Provisions) at 151-52.

For deliveries of materials and equipment to the island, the contracts designated two barge landing sites: Sissy Cove and Daytona Beach. DX 1008 (Roadway and Airfield Contract Provisions) at 104-05. Because landings had to be made on one of these two exposed beaches, adverse weather conditions could prevent deliveries for periods of time. See DX 1008 (Roadway and Airfield Contract Provisions) at 104; Tr. 76:1 to 79:17 (Test, of George Kostelny, former Metric Superinten­dent of San Nicolas Island projects) (stating that Metric used a weather consultant to forecast surf and winds but that occasionally unexpected conditions made it difficult or impossible for the barge to land even when the weather was expected to be favorable). Because of the challenges of landing barges at the beach-landing sites, the Special Claus­es addressed aborted or impossible barge landings:

If the Contractor’s attempt to land his barge is not successful due to weather and/or high surf conditions—or—if data [are] available which proves that barge landing is impossible, then sufficient justi­fication may exist for a no cost time exten­sion.

DX 1008 (Roadway and Airfield Contract Provisions) at 104 (emphasis added). The number of successful landings varied from year to year based upon the conditions en­countered. Tr. 912:6-21 (Miller). Because of the island’s distance from the California coast, approximately a full day was required to complete a trip to the island from either Point Mugu, Point Hueneme (the Navy’s chief Seabee base located near Point Mugu), or Terminal Island, where materials were loaded for delivery. Tr. 511:4 to 518:3, 761:8 to 763:1 (Test, of Elon Holmes, a project manager for Metric). The contracts also provided that the Navy had priority over Metric in using the beach-landing sites. DX 1008 (Roadway and Airfield Contract Provi­sions) at 104; Tr. 79:25 to 80:8 (Kostelny).

C. Beach Landings

When Metric submitted its bids for the projects, it based its costs on use of an oceangoing barge that it purchased in 1994 which was too large to land at Sissy Cove but had landed successfully at Daytona Beach during prior projects by Metric at San Nico­las Island. Tr. 456:3-16 (Holmes), 879:19 to 880:6, 902:10 to 904:5 (Miller); Pl.’s Post-­Trial Br. at 1; see also Cl. Tr. 85:16-17. Only Daytona Beach was used by both the Navy and Metric for landings. Sissy Cove was not a viable option because it was small and narrow and its approaches were con­stricted by rocky outcrops and shallow depths. Tr. 70:3-20 (Kostelny), 480:5 to 483:13 (Holmes), 902:13 to 903:11 (Miller).

Both the Navy and Metric used the same area of Daytona Beach for landings. To secure the barges at the particular landing site on the beach, the Navy had installed “deadmen,” essentially anchored cables that were warped to the barges to prevent move­ment of the barges during landing opera­tions. Tr. 73:2 to 75:4 (Kostelny). In addi­tion, to assist egress from the barges at the site, the Navy or Metric would “build a ramp of sand and place temporary matting over the sand to allow vehicles to [travel] without getting stuck.” DX 1008 (Roadway and Air­field Contract Provisions) at 104. For the Navy’s own deliveries to the island, it used an ocean-going barge leased from Foss Ma­rine that was constructed to transport rolling stock, ie., vehicles which carried the materi­als being delivered, such as tankwagons of fuel. Tr. 87:6-7, 381:6-8 (Kostelny). In con­trast, Metric’s barge was constructed to car­ry loose bulk materials such as aggregate or sand that bucket loaders had to offload onto trucks upon arrival. Tr. 87:6-24 (Kostelny). Metric’s barge was two to three times the size of the Navy’s barge and had a signifi­cantly deeper draft when loaded. See Tr. 99:18 to 100:20, 305:2-13 (Kostelny); Cl. Tr. 10:17-19.

Initially, Metric was able to make success­ful barge landings at Daytona Beach for both the airfield and roadway projects, delivering materials needed for the two projects. Tr. 483:6-13 (Holmes); Tr. 902:10 to 904:5 (Mil­ler). On December 18, 1998, however, Met­ric’s asphalt plant on the island caught on fire. Tr. 132:20 to 133:3 (Kostelny). At the time, the scheduled completion dates were May 14, 1999 for the airfield project and June 28, 1999 for the roadway project. Tr. 1304:21 to 1305:10 (Test, of Stuart Burnell, a construction expert for Metric, employed by Hainline & Associates); PX 5 (Schedule Analysis and DCAA Audit Review by Hain­line & Associates (Oct. 5, 2005) (“Hainline Analysis”)) at 3. Notwithstanding the fire, Metric continued to deliver materials to the island, making a delivery on December 22, 1998, and planning for a return trip after the Christmas and New Year’s holidays, Tr. 503:25 to 504:17, 525:13 to 527:9 (Holmes), to stockpile materials on the island for comple­tion of the projects. Tr. 313:7 to 328:9, 330:14 to 332:24 (Kostelny); 499:9-16 (Holmes).

D. The Navy’s Installation of the Pontoon

Between December 23, 1998 and January 3, 1999, the government installed a barge-­landing pontoon on Daytona Beach. Tr. 90:14-20 (Kostelny).4 The government in­formed Metric that the Navy no longer had a permit from the Corps of Engineers for land­ings on the beach and Metric had to use the pontoon to land its barge at Daytona Beach. Tr. 72:4-16, 92:19-22 (Kostelny), Tr. 471:13-­25, 478:17 to 488:11 (Holmes). Immediately after the pontoon was installed, Metric can­celed a barge landing that was scheduled for January 4,1999, see DX 1001 (Expert Report of Patti Jones, an expert retained by the government (Aug. 28, 2006)) (“Jones Re­port”) at 9. Metric notified the government by letter on January 5, 1999 that it had canceled this barge landing because Metric had been informed by the Navy’s public works superintendent “that the design of the ramp on the Metric barge was incompatible with the new pontoon ... which w[as] de­signed and placed to facilitate easier landings of the [smaller] Navy barge.” PX 20 (Letter from Holmes to Resident Officer in Charge of Construction (“ROICC”) (Jan. 5, 1999)); Tr. 461:16 to 463:14 (Holmes). Metric was warned “that if Metric elected to land their barge, and use the new pontoons, that they (Metric) would be responsible for any dam­age caused by that landing.” PX 20 (Letter from Holmes to ROICC (Jan. 5,1999)). One day later, on January 6,1999, Metric notified the government that it was “eeas[ing] all operations ... until ... a suitable landing site is provided” and that Metric considered the installation of the pontoon to be a “com­pensable change of conditions as set forth in FAR [§ ] 52.236-2.” PX 21 (Letter from Holmes to ROICC (Jan. 6, 1999)). The gov­ernment did not respond to either letter. Tr. 463:25 to 465:14 (Holmes).

Thereafter, Metric attempted to land its barge using the pontoon with limited success. Metric was able to land its barge on the pontoon only under restrictive conditions be­cause its barge’s draft was deeper than that of the Navy’s barge, requiring a 4.5 foot or higher tide which did not occur daily. Tr. 99:18 to 100:20 (Kostelny), 840:8 to 841:20 (Holmes).5 Even with a sufficiently high tide, there were occasions when Metric could not land because sand bars would build up in front of the pontoon, blocking the barge from landing. Tr. 93:5-24 (Kostelny), 466:23 to 468:22 (Holmes); PX 22 (Letter from Metric to ROICC (Feb. 11, 1999)).6 On February 11, 1999, Metric requested that the Navy “remove th[e] pontoon and return the beach to its original (pre-bid and post-award) con­figuration.” PX 22 (Letter from Metric to ROICC (Feb. 11,1999)). The Navy respond­ed on February 12, 1999 that it was “in the process of discussing the issues” raised by Metric. PX 23 (Letter from Patricia Mar­tonick, Director, Contracts, to Metric (Feb. 12,1999)).

Among other things, installation of the pontoon delayed the delivery of replacement parts for the asphalt batch plant to San Nicolas Island. Metric endeavored to deliver a load of construction material on February 4,1999, but that landing was aborted because sand in front of the pontoon prevented Met­ric’s barge from reaching the pontoon with the barge’s ramp. PX 22 (Letter from Met­ric to ROICC); Tr. 532:10-25 (Holmes). Metric attempted to deliver a replacement asphalt plant tank and boiler on February 25, 1999, but the landing was aborted because the barge did not arrive in time for the high tide. Tr. 530:21 to 532:20 (Holmes); PX 7 (certified claims) at 71. An additional land­ing attempt was made on February 26, 1999, but this effort was also aborted due to a sand bar in front of the pontoon. Tr. 111:15-25, 114:13 to 115:2 (Kostelny), 530:21 to 531:6 (Holmes); PX 47 (Daily Reports to Inspec­tor) at 3-4, 32; PX 97 (handwritten notes).7 The government thereafter agreed to deliver the tank on its barge, landing with the tank on March 31, 1999, and Metric delivered the boiler plus a cargo of 775 tons of rock dust on April 14,1999. Tr. 143:7 to 145:7 (Kostelny); PX 7 (certified claims) at 72-73; PX 47 (Dai­ly Reports to Inspector) at 38.8

Around May 3, 1999, the Navy installed deadmen further up the beach, making it possible for Metric to resume landing on the beach once authorized to do so. Tr. 120:11 to 121:19 (Kostelny); PX 107 (Handwritten notes regarding quality control meeting (May 4, 1999)) (“[D]eadm[e]n ha[ve] been installed by Public Works over the weekend.”).9 Met­ric then received oral authorization to re­sume beach landings, Tr. 479:3-22, 844:16-19 (Holmes), but it was told that it could not build sand ramps to off-load materials. Tr. 82:5-8 (Kostelny). Additionally, the Navy asked Metric to attempt to use the pontoon for hot oil deliveries. PX 18 (E-mail from Schwartz to Sasseer (Mar. 20, 2000)). For the remainder of its contract performance, Metric conducted landings on Daytona Beach using the beach itself and not the pontoon. See Tr. 73:25 to 74:2, 312:7 to 313:6 (Kostel­ny). Metric would land its barge on the beach, offload the raw materials such as gravel and sand onto trucks, and then use loaders to pull the trucks through the beach sand onto the roadway where the trucks could move the loads to Metric’s staging areas. Tr. 82:5-19 (Kostelny); DX 1001 (Jones Report) at ll.10

E. Completion of the Roadway and Runway Work

Soon after Metric resumed its beach land­ings, piping and the other remaining compo­nents necessary for repairing the asphalt plant were delivered and the plant started up again on June 24, 1999. PX 7 (certified claims) at 75; Tr. 550:12 to 551:13, 773:17-20 (Holmes); DX 1001 (Jones Report) at 15. However, shortly after the asphalt batch plant resumed operations, its motor burned out and needed replacing, possibly as a result of the island’s fluctuating power supply. Tr. 147:19 to 149:3 (Kostelny). Metric replaced the motor and the asphalt plant returned to service on July 9, 1999. Tr. 132:20 to 133:11 (Kostelny); DX 1001 (Jones Report) at 17.

During the period when the asphalt batch plant was not functioning, Metric did con­crete work on the roadway project, emplac­ing V-ditches, and doing other concrete work on the runway that could be accomplished with the construction materials on hand. Tr. 332:25 to 333:12, 375:12 to 376:18, 377:9-18, 383:4-15 (Kostelny). Once the asphalt plant came back on-line, Metric proceeded to com­plete the paving of the airfield and then turned to paving the roadway. Cl. Tr. 109:16-21. On June 13, 2000, Metric and the Navy executed Modification No. P00001 to the roadway contract. DX 1001 (Jones Re­port) at 142^3 (Modification P00001 of Roadway Contract). This modification made various changes to contract requirements, in­cluding deleting all waterline work, deleting some V-ditch concrete work, and adding 1.4 miles of road resurfacing work. Id. at 143. The modification extended the period of per­formance for 384 calendar days from June 12,1999 to June 30, 2000 “due to batch plant fire, weather, etc.” Id. The modification con­tained a paragraph titled “Contractor’s Statement of Release,” which stated:

Acceptance of this modification by the con­tractor constitutes an accord and satisfac­tion and represents payment in full for both time and money and for any and all costs, impact effect, and for delays and disruptions arising out of, or incidental to, the work as herein revised.

Id.

Although Metric had not yet made a claim for the pontoon delays at this time, both Metric and the contracting officer knew that such a claim would be filed. Mr. Miller testified that he was concerned about the uncertainty created by the use of the term “etc.” in the recited reasons for the extension and about the fact that the release pertained to “the work as herein revised,” and he called Ms. Martonick, the contracting officer, about the scope of the release. Tr. 964:8 to 969:10, 1152:3-18 (Miller). Ms. Martonick reported­ly assured Mr. Miller that the modification would not affect Metric’s right to damages caused by the installation of the pontoon and that Metric was not waiving or releasing the government from liability relating to a pon­toon claim by signing Modification No. P00001. Id. Metric required 25 barge land­ings following the pontoon’s installation to deliver all of the materials to complete the projects, Tr. 1114:15-18 (Miller); PX 5 (Hainline Analysis) at 6; DX 1001 (Jones Report) at 8, and it ultimately finished the airfield runway repair paving on December 23, 1999 and the roadway project paving on May 18, 2000. PX 7 (certified claims) at 67.11

F. The Arresting-Gear Project

On June 23, 2000, the Navy issued a re­quest for proposal relating to work on the arresting gears at each end of the runway to Metric. PX 120 (Letter from Joe Ann Car­rignan, Contracting Officer, Navy, to Metric (June 23, 2000)).12 The Navy proposed to issue a change to the airfield contract, calling for “[r]emov[al] and dispos[al] ... off the island [of] the existing concrete and rails of the arresting gears (2 each),” and “installa­tion of] new concrete and rails for the arrest­ing gear (2) in accordance with Drawing T04972 (Sheet C-l) with a Print Date of 06/21/00 and all the applicable provisions of the contract specification.” Id.; Tr. 562:3-22 (Holmes). The letter also stated that “[i]f additional contract time will be required to accomplish the changed work, [Metric’s] pro­posal should contain a substantiated time extension request.” PX 120 (Letter from Carrignan to Metric). Metric submitted its proposal which included a projected cost of $637,924 for an additional 2.75 months for the additional work. PX 126 (Proposal for Con­tract Modification (July 14, 2000)) at 1-2; Tr. 565:13 to 566:14 (Holmes). The government lacked funding for the change and conse­quentially the parties engaged in “horse­trading” about funding. Tr. 1019:4-7 (Mil­ler). The ultimate outcome of negotiations was the government’s agreement to pay for materials requested by Metric in exchange for Metric’s acceptance of $50,000 for the change order. Tr. 566:15 to 567:15 (Holmes), 1016:16 to 1019:7 (Miller), 1772:9 to 1773:25 (Test, of Carrignan, Contracting Officer).

Modification No. P00017 was executed on August 4, 2000. PX 6 (Arresting Gear Con­crete Replacement Study by Hainline & As­sociates (undated) (“Hainline Arresting Gear Analysis”)) at 9-10 (“Arresting Gear Modifi­cation”).13 Metric received a time extension under the modification, with work to be com­pleted by November 2, 2000 in exchange for the additional payment of $50,000. Id. at 110 (Arresting Gear Modification). The modifi­cation also contained a “Contractor’s State­ment of Release,” which was virtually identi­cal to that contained in Modification No. P00001 for the roadway contract. Id.; see swpra, at 811. Metric was directed to “de­mol[ish] ... all existing concrete arresting gear material and replac[e] with new com­pacted base material, asphalt,” pour new con­crete pads with new steel beams embedded in the concrete, and install a three foot wide asphalt patch between the existing asphalt and the new concrete pads. PX 6 (Hainline Arresting Gear Analysis) at 11-13 (Arresting Gear Modification); PX 120 (Letter from Carrignan to Metric (June 23, 2000)).

Work on the arresting gear began in early September 2000. PX 6 (Hainline Arresting Gear Analysis) at 15. The asphalt work proved challenging for Metric. The arrest­ing gear at the “30-end” was to be replaced first and then the “12-end” was to be done, such that continued daily landings of aircraft could occur at one end of the runway during the repair work at the other end. Tr. 155:16 to 156:2 (Kostelny); PX 129 (Modification of Airfield Contract) at 3. Metric first complet­ed the concrete work on the 30-end and then undertook the asphalt work.14 The plans called for a “3'-0" wide AC Patch” between the existing asphalt runway and the newly placed arresting-gear concrete. PX 6 (Hain­line Arresting Gear Analysis) at 13 (Arrest­ing Gear Modification). The specifications included size requirements for the aggregate used in the asphalt mix. DX 1008 (Roadway and Airfield Contract Provisions) at 154-55. Metric notified the government during the change-order negotiations that because the plans called for a three foot wide “patch,” the asphalt could not be laid with an asphalt paving machine and instead had to be hand placed as set forth in the specifications. Tr. 605:1 to 611:22 (Holmes); PX 126 (Proposal for Contract Modification (July 14, 2000)).15

Around November 27, 2000, Metric placed the three-foot asphalt patch for the 30-end using the hand-placement methods set forth under Specification Section 02511.3.2.3 and using the mix specified by the contract. Tr. 605:1 to 611:22 (Holmes), 1022:11 to 1023:2 (Miller). The government rejected the as­phalt and directed Metric to remove and replace it, on the ground that excessive ag­gregate was exposed. Tr. 165:11-24, 167:4-­19, 270:3-8 (Kostelny), 610:23 to 611:7 (Holmes). The government was concerned that loose rocks could dislodge from the as­phalt and be caught up in an aircraft’s jet engines. Tr. 2268:16 to 2669:17 (Test, of Mike Douglas, Navy field representative dur­ing Metric’s San Nicolas Island projects). Metric disputed the claim that the exposed aggregate was “excessive” for hand-placed asphalt, Tr. 167:4 to 172:14 (Kostelny); see also DX 1008 (Roadway and Airfield Con­tract Provisions) at 148, but proposed to seal the exposed aggregate with TopGuard, a compound that had been used to seal exposed aggregate on other parts of the runway. Tr. 613:16 to 614:6 (Holmes); DX 1012 (Addition­al Arresting Gear Modification) at 79-80; Tr. 174:19 to 175:16 (Kostelny); DX 1009 (San Nicolas Island Project Photographs) at 177. After initially rejecting this proposal, the government eventually allowed Metric to use TopGuard on the exposed aggregate. Tr. 172:15 to 176:20, 200:18 to 201:6 (Kostelny). However, the result remained unacceptable to the Navy.

Metric and the Navy also had difficulty with the requirement of the modification that the surface between the asphalt and the con­crete be “flush” to reduce the chance that tailhooks of landing airplanes would get caught on an uneven lip at the asphalt-con­crete seam. PX 43 (Quality Control Meeting Notes) at 1. The Navy initially would not allow any deviation in elevation between the new asphalt and the concrete. Tr. 195:23 to 196:19 (Kostelny). Ultimately, after months of discussion, the government specified that the concrete had to be lower than the asphalt and that an acceptable tolerance would be 1/4 of an inch. Tr. 433:22 to 436:3 (Kostelny); PX 43 (Quality Control Meeting Notes) at 1.

From late November 2000 to early August 2001, Metric removed and replaced the three-foot asphalt patch for the 30-end on three occasions. Tr. 177:18 to 181:25 (Kos­telny); see also PX 6 (Hainline Arresting Gear Analysis) at 4; DX 1001 (Jones Report) at 34-38. Metric ultimately abandoned hand-placement methods and brought in a cold planer and removed the rejected asphalt and an adjacent portion of the runway to a width sufficient to allow use of a paving machine. Tr. 1027:2-12 (Miller); DX 1001 (Jones Report) at 39. Metric then placed the arresting gear “patch” using the paving ma­chine, Tr. 18 1: 10 to 183:4 (Kostelny), and the Navy accepted that reworked result for the 30-end arresting gear asphalt. Tr. 182:1 to 183:3 (Kostelny), 624:21 to 625:18 (Holmes); DX 1001 (Jones Report) at 40. Having learned from its experience on the 30-end, Metric had much less trouble com­pleting the work on the 12-end. Rather than placing the concrete first, Metric initially placed the asphalt, sawcut a straight edge along the asphalt, installed an expansion joint against the sawcut asphalt edge, and then poured the concrete against the expansion joint material, all of which allowed Metric to place the asphalt by paving machine and thereafter pour the concrete at the same height as the asphalt. Tr. 188:10 to 198:6 (Kostelny), 626:24 to 630:21 (Holmes); PX 202 (Letter from Metric to Navy (Nov. 14, 2001)); PX 203 (Letter from Navy to Metric (Nov. 15, 2001)); DX 1009 (San Nicolas Is­land Project Photographs) at 79-80.

The completion of the 30-end was also delayed due to installation of the “rubber rails.”16 The government’s request for pro­posal required Metric to remove and dispose of the existing concrete, beams, and rails, and install new concrete, beams, and rails. PX 120 (Letter from Carrignan to Metric (June 23, 2000)) (contractor to “remove and dispose” of the “existing concrete and rails of the arresting gears”). Metric was told that the government would provide Metric with the new rails to install. PX 120 (Letter from Carrignan to Metric) (contractor to “[ijnstall new concrete and rails”). The change order repeated these requirements, stating that Metric was to demolish “all existing concrete arresting gear material and replac[e] with new compacted base material, concrete, and to patch the asphalt as shown [in Drawing No. T04972].” PX 129 (Modification of Air­field Contract) at 3; PX 120 (Letter from Carrignan to Metric); PX 6 (Hainline Arrest­ing Gear Analysis) at 13 (Arresting Gear Modification). Drawing No. T04972 noted that “New I beam to be drilled and tapped prior to installation. Government will fur­nish template for location of holes.” PX 6 (Hainline Arresting Gear Analysis) at 13 (Ar­resting Gear Modification) (capitals omitted).

During the course of its work, Metric re­moved the rubber rails as part of its demoli­tion of the preexisting arresting gear, and as part of its new installation Metric embedded new steel beams that were longer than the original rubber rails. At that point, the gov­ernment directed Metric to reinstall the rub­ber rails that had been removed during the demolition process, and Metric had to retap the new I beams so that the old rubber rails could be used on the new beams. Tr. 160:12 to 162:16 (Kostelny), 569:8 to 570:11 (Holmes). Metric was able to locate only seven of the ten original rubber rails. Tr. 161:9 to 162:16 (Kostelny), 569:16 to 571:11 (Holmes). Although the government now ar­gues that its original and continuing intent was for the rubber rails to be saved and reinstalled, that claim is unavailing in light of the contractual provisions of the agreed mod­ification. Moreover, during the course of the project, a Navy inspector informed Metric that the existing rubber rails were to be installed “if the other ones don’t arrive.” Tr. 163:1-22 (Kostelny); PX 47 (Daily Reports to Inspector) at 18. Work on the 30-end ar­resting gear except for the rubber rails was complete by August 14, 2001, except for mi­nor corrective steps. Tr. 582:7-19 (Holmes); PX 337 (Letter from L.W. Serrano, Navy Project Engineer, to Metric (Sept. 5, 2001)). All work on the 30-end arresting gear was complete by August 27, 2001, except for in­stallation of the rubber rails. PX 337 (Letter from Serrano to Metric) (“As of August 28, 2001, the cable support rails for this arrest­ing gear are not installed yet.”); DX 1001 (Jones Report) at 40 (“27-Aug-01 Arresting gear #3[0] ready for final”). However, it was not until November 8, 2001 that the government accepted the work at the 30-end, after Metric had obtained the three new rubber rails from the Navy and installed them at the 30-end. PX 339 (Letter from E.W. Ruckle, Resident Engineer in Charge of Construction to Metric (Nov. 13, 2001)). Metric was unable to move to work on the 12-end until the 30-end was finished. Met­ric completed work on the arresting gear at the 12-end on June 20, 2002.

In sum, all of Metric’s constructive-change claims respecting the arresting gears relates to the 30-end; none concerns the work at the 12-end.

G. Demobilization

San Nicolas Island is an environmentally sensitive area where, among other things, the breeding, birth, and nursing of several spe­cies of marine mammals are protected. DX 1008 (Roadway and Airfield Contract Provi­sions) at 112. Shortly after entering into the airfield contract, Metric submitted an Envi­ronmental Protection Plan (“the Plan”) to the Navy as part of its contractual obligations, and that Plan was approved after one set of revisions. Tr. 974:9 to 977:6 (Miller); PX 60 (Metric’s Environmental Protection Plan); PX 61 (Metric’s Revised Environmental Pro­tection Plan). The Plan included a provision for clean-up of spills:

Removal of hazardous waste from [gov­ernment property will be by a hazardous waste transporter registered with the State of California. This includes trans­portation by barge. Used lubricants, ex­cess fuels or construction materials, haz­ardous waste and contaminated soils will be carefully transported off the island per applicable CCR and CFR regulations. In the event of an accidental oil or hazardous material spill, the Contracting Officer will be notified and appropriate clean-up proce­dures implemented immediately.

PX 61 (Metric’s Revised Environmental Pro­tection Plan) at 5. Neither the contract nor the approved Plan required Metric to pre­pare and submit for approval a separate, further plan to clean-up a particular spill or discharge.

Metric spilled hazardous materials on occa­sion throughout the course of the project, performing clean-up with the government’s knowledge and oversight. Tr. 216:6 to 218:10 (Kostelny). As Metric neared comple­tion of the project, the government observed contaminated soils at various locations and requested Metric’s response regarding its in­tended clean-up procedures. In May 2002, Metric informed the Navy that it intended to use the procedures set out in its Environ­mental Protection Plan that had been used previously when spills occurred. Tr. 970:20 to 971:18 (Miller); PX 61 (Metric’s Revised Environmental Protection Plan); PX 225 (Facsimile from Miller to Martoniek (May 17, 2002)). The government rejected Metric’s approach, informing Metric that it must ei­ther receive approval for a newly submitted clean-up plan or hire an approved clean-up contractor to prepare a plan before it could proceed. Pl.’s Posh-Trial Br. at 25; Tr. 984:9 to 985:23 (Miller); PX 235 (Letter from Serrano to Holmes (June 12, 2002)) (listing environmental clean-up contractors recom­mended by the China Lake naval facility). Although Metric believed that it was under “no contractual requirement to hire an out­side contractor to prepare a clean-up plan or to get government approval of the clean-up plan,” Pl.’s Posh-Trial Br. at 25, it submitted a number of proposals each of which the government rejected. Tr. 987:8 to 990:19 (Miller); PX 263 (Letter from Danny Morse, Contracting Officer to Metric (Nov. 7.2002)). Metric then hired an outside contractor, IWS Environmental, to prepare a spill clean-up plan and remove contaminated material. Tr. 987:24 to 988:21 (Miller); PX 264 (Letter from Metric to Martoniek (Nov. 7, 2002)). The government approved a plan prepared by IWS Environmental. PX 298 (Letter from Martoniek to Metric (April 11, 2003)); Tr. 991:5 to 992:3 (Miller).

After this planning hurdle had been cleared, a controversy arose when the Navy directed Metric to clean-up contaminated soil in the Sand Spit area, an area to which Metric was not originally assigned but had begun using in late 1998 after being awarded the roadway contract. Prior to Metric’s ac­cess to the Sand Spit, the Navy and other contractors had used the area for many years. Prior to Metric’s use, no inspection of the Sand Spit area was done, although other areas had been inspected for contamination prior to Metric gaining access. Tr. 980:8 to 983:23 (Miller). Metric used the Sand Spit as a storage area for construction materials and equipment, coincident with other con­tractors, and did not undertake any produc­tion operations there. Tr. 224:14 to 225:6 (Kostelny), 994:6 to 995:14, 972:4 to 973:23 (Miller).

Among other things, Metric eventually used the Sand Spit area as a staging ground for storage of concrete and asphaltic material it had removed in completing the roadway and airfield projects. After some discussion, the Navy agreed that Metric could leave this material on San Nicolas Island if Metric milled the material such that it could be recycled by the Navy as road base in future construction projects. Tr. 240:9 to 241:18 (Kostelny), 1266:8-17 (Miller). Metric brought in a crusher and processed the mate­rial. Id. However, it was later determined that some of the resulting crushed aggregate piles were contaminated. Tr. 997:5 to 998:11 (Miller). Metric claims that apart from one identifiable area of contamination that Metric agreed to remove, Metric did not contami­nate the crushed aggregate piles.17 The gov­ernment required Metric to remove roughly half or two-thirds of the crushed aggregate piles as contaminated material. Tr. 1000:10 to 1002:16, 1266:19 to 1270:22 (Miller); DX 1001 (Jones Report) at 323.18

Mr. Steven Schwartz, the environmental protection specialist at San Nicolas Island, testified that the Sand Spit was an area used by a number of different people and groups. Tr. 1762:1-12 (Schwartz). The contamina­tion found at the Sand Spit was in piles of asphalt and concrete grindings taken from various areas. Tr. 1763:17 to 1764:18 (Schwartz). Mr. Schwartz was unable to draw any conclusions as to how the ground-­up asphalt and concrete became eontaminat­ed. Tr. 1764:19-22 (Schwartz). He sur­mised that the grindings were material transported by Metric to the Sand Spit and that it did not appear that the contamination occurred at that site but rather may have occurred elsewhere. Tr. 1765:4 to 1766:17 (Schwartz). The Navy based Metric’s re­sponsibility for the contamination on the fact that it had transported the material to the Sand Spit. Tr. 1768:2-8 (Schwartz). Metric cleaned up contamination found in the Sand Spit, notwithstanding its protestations that it was not at fault. Pl.’s Post-Trial Br. at 27.

H. Procedural History

Metric submitted claims to the Navy’s Contracting Officer respecting the pontoon, PX 7 (four separate certified claims (Jan. 9, 2003)), PX 293 (Claim Letter from Metric to Navy (Apr. 4, 2003)), PX 294 (Claim Letter from Metric to Navy (Apr. 4, 2003)), PX 295 (Claim Letter from Metric to Navy (Apr. 4, 2003)), PX 296 (Claim Letter from Metric to Navy (Apr. 4, 2003)), arresting gear, PX 343 (Arresting Gear Certified Claim (June 17, 2003)), and contaminated soil. PX 330 (Let­ter from Metric to Navy regarding certified claim (Jan. 26, 2004)). Each was certified in accordance with the Contract Disputes Act, 41 U.S.C. §§ 601-613. Besides its direct expenses allegedly caused by changed condi­tions and added requirements, Metric sought to recover the “ownership costs” for its equipment during claimed periods of delay. These costs were calculated using the rates listed in the Dataquest Rental Rate Blue Book (the “Blue Book”), a publication used in the construction industry to determine equip­ment operating and standby rates.

Audits of several of Metric’s claims were performed by the Defense Contract Audit Agency (“DCAA”). However, no decision on any of Metric’s claims was issued by the Contracting Officer within the time required by the Contract Disputes Act. See 41 U.S.C. § 605(c)(2) (“A contracting officer shall, with­in sixty days of receipt of a submitted certi­fied claim over $100,000,” either issue a final decision or notify the contractor of the date by which a decision will be issued.) Metric filed its complaint with this court on April 9, 2004. Extensive discovery in this action was accompanied by a further audit by DCAA. Trial was conducted from July 16 through 24, 2007 in Seattle, Washington, a site visit to San Nicolas Island was conducted on July 26, 2007, and trial concluded with testimony on July 81 and August 1, 2007 in Washington, D.C. Following post-trial briefs and a closing argument, the case has become ready for disposition.

Jurisdiction

Under the Tucker Act and the Contract Disputes Act, this court has subject matter jurisdiction over a claim that has been pre­sented to a contracting officer if either (i) the contracting officer has entered a final deci­sion denying the claim, or (ii) the contracting officer has failed to render a final decision on the claim in a timely manner. See 41 U.S.C. § 609(a)(1) (“[After a] decision of the con­tracting officer under section 605 of this title ..., a contractor may bring an action on the claim directly to the United States Court of Federal Claims.”); see also 28 U.S.C. § 1491(a)(2) (“The Court of Federal Claims shall have jurisdiction to render judgment upon any claim by or against, or dispute with, a contractor arising under section 10(a)(1) of the Contract Disputes Act [, 41 U.S.C. § 609(a)(1)].”); James M. Ellett Constr. Co. v. United States, 98 F.3d 1537, 1541-42 (Fed.Cir.1996); Case, Inc. v. United States, 88 F.3d 1004, 1008-09 (Fed.Cir.1996). In this instance, the contracting officer did not issue a final decision on Metric’s claim within the time required by the CDA, and thus the claim is deemed denied. See 41 U.S.C. § 605(c)(5); United Partition Sys., Inc. v. United States, 59 Fed.Cl. 627, 634-35 (2004). Consequently, the court has jurisdic­tion over Metric’s claims.

Standards for Decision

In all contracts, American common law “imposes upon each party a duty of good faith and fair dealing in its performance and in its enforcement.” Restatement (Second) of Contracts § 205 (1981); see also Centex Corp. v. United States, 395 F.3d 1283, 1304 (Fed.Cir.2005). This duty among other things encompasses the “obligation ‘that nei­ther party will do anything that will hinder or delay the other party in performance of the contract.’” Essex Electro Eng’rs v. Danzig, 224 F.3d 1283, 1291 (Fed.Cir.2000) (quoting Luria Bros. v. United States, 177 Ct.Cl. 676, 369 F.2d 701, 708 (1966)); see also Restatement (Second) of Contracts § 205 emt. d. Breach of these common law duties can be the basis for claims of compensable delay and disruption, entitling the affected party to an equitable adjustment. See Aydin Corp. v. Widnall, 61 F.3d 1571, 1577 (Fed.­Cir.1995) (“Where it requires a constructive change in a contract, the government must fairly compensate the contractor for the costs of the change.”) (citing J.B. Williams Co. v. United States, 196 Ct.Cl. 491, 450 F.2d 1379, 1394 (1971)); Ets-Hokin Corp. v. United States, 190 Ct.Cl. 668, 420 F.2d 716, 720 (1970) (“[W]here ... the contracting officer, without issuing a formal change order, re­quires the contractor to perform work or to utilize materials which the contractor regards as being beyond the requirements of the pertinent specifications and drawings, the contractor may elect to treat the contracting officer’s directive as a constructive change order and prosecute a claim for an equitable adjustment.”); Luria Bros., 369 F.2d at 708 (government’s breach of implied obligation not to hinder or delay the contractor in per­formance gave rise to entitlement to recover damages).19

“An equitable adjustment encompasses the quantitative difference between the reason­able cost of performance without the added, deleted, or substituted work and the reason­able costs of performance with the addition, deletion, or substitution.” Miller Elev. Co. v. United States, 30 Fed.Cl. 662, 701 (1994) (citing J.L. Simmons Co. v. United States, 188 Ct.Cl. 684, 412 F.2d 1360, 1370 (1969); Bruce Constr. Corp. v. United States, 163 Ct.Cl. 97, 324 F.2d 516, 519 (1963)). The burden of proving the amount of an equitable adjustment rests with the party making the claim. See Mingus Constructors, Inc. v. United States, 812 F.2d 1387, 1392 (Fed.Cir.­1987). The proofs as to quantum need not be mathematically exact, but they should be sufficient to provide “a fair and reasonable approximation” of the damages. Electronic and Missile Facilities, Inc. v. United States, 189 Ct.Cl. 237, 416 F.2d 1345, 1358 (1969); see also Seaboard Lumber Co. v. United States, 308 F.3d 1283, 1302 (Fed.Cir.2002).

ANALYSIS

A. Pontoon Claim

1. Changed condition.

Metric contends that the Navy’s in­stallation of the pontoon at Daytona Beach constitutes a constructive change. Pl.’s Post-Trial Br. at 28. Five categories of con­structive changes have been identified by commentators: “(I) disputes over contract interpretation during performance; (II) [g]overnment[al] interference or failure to cooperate; (III) defective specifications; (IV) misrepresentation and nondisclosure of supe­rior knowledge; and (V) acceleration.” Mil­ler Elevator, 30 Fed.Cl. at 678 (citing Ralph C. Nash, Jr., Government Contract Changes 10-9 through 10-11 (2d ed.1989)); Nash, Changes and Claims, in Construction Con­tracting, at 501, 534 (1991). Metric’s pon­toon claims fall under the second type of constructive change listed above, i.e., one that rests on governmental interference.20 When applying the doctrine of constructive change in this context, courts “look to wheth­er the government’s fault has compelled the contractor to perform extra work.” John Cibinic, Jr., Ralph C. Nash, Jr. & James F. Nagle, Administration of Government Con­tracts 460 (4th ed.2006). ‘Whether the gov­ernment has breached an implied duty to cooperate is determined by the reasonable­ness of its actions under the circumstances.” Id. at 459. Before it can recover, the con­tractor must show that the government or­dered and actually compelled it to perform the additional work, Len Co. & Assocs. v. United States, 181 Ct.Cl. 29, 385 F.2d 438, 443 (1967), although the government’s order need not be formal or in writing. Wm. A. Smith Contracting Co. v. United States, 188 Ct.Cl. 1062, 412 F.2d 1325, 1340 (1969). The order or compulsion must have been given by or derived from a governmental official with requisite authority. Calfon Constr. Inc. v. United States, 18 Cl.Ct. 426, 434, (1989), aff'd, 923 F.2d 872 (Fed.Cir.1990) (table).

The government argues that this is purely a delay claim, not a constructive change, with the attendant consequence that Metric would not be allowed a profit on the costs of delay as it would be for a changed-­condition claim. Def.’s Post-Trial Br. at 16 (citing S.S. Silberblatt, Inc. v. United States, 228 Ct.Cl. 729, 1981 WL 21469 (1981)); see also North Am. Constr. Corp. v. United States, 56 Fed.Cl. 73, 76 (2003) (“With re­spect to profit, there is typically no question that it is a normal part of an equitable ad­justment.”). Although witnesses at trial and plaintiffs briefs used the word “delay” when discussing the pontoon claim and the results of the pontoon installation, see Tr. 637:23-25 (Holmes), 1598:20-25 (Burnell); Pl.’s Post-­Trial Reply at 14-17, these references do not make Metric’s pontoon claim a delay claim. Rather, the scenario presented by Metric fits squarely within a governmental-interference type of constructive change. See Ets-Hokin Corp., 420 F.2d at 720.

Metric bid for the work on San Nicolas Island and began its performance based upon the existing barge landing system at Daytona Beach. Tr. 456:3-16 (Holmes), 879:19 to 880:6, 902:10 to 904:5 (Miller).21 However, when the government later installed the pon­toon landing system, Metric was directed by the government to land only on the pontoon. Tr. 72:4-16, 92:19-22 (Kostelny), 471:13-25, 478:17 to 488:11 (Holmes). Because Metric’s barge was different from the government’s barge, landings by Metric on the pontoon proved to be difficult and at times impossible when the water depth at the end of the pontoon was not sufficient, whether due to lower tide or sand bars, to accommodate the deeper draft drawn by Metric’s loaded barge. See supra, at 810. In short, Metric has proven that the Navy’s installation of the pontoon on Daytona Beach, and its attendant requirement that Metric land its barge only on the pontoon and not on the beach consti­tuted a constructive change to the roadway and airfield contracts that hindered Metric’s performance.22

The government counters that the contrac­tual provisions regarding beach landings were “quite restrictive and Metric simply had no right to unfettered access to beach land­ings on Daytona Beach.” Def.’s Post-Trial Br. at 16 (citing DX 1008 (Roadway and Airfield Contract Provisions) at 104-05). However, Metric is not relying on any right to “unfettered” access; rather, its pontoon claim rests on the method of access as recit­ed in the contractual terms. The contractual restrictions related to the Navy’s priority of use, the nature of the beach, and environ­mental conditions; nothing in the contract addressed a pontoon. Landing of bulk ag­gregate and other similar types of construc­tion materials at Daytona Beach was essen­tial to contract performance. Landing at Sissy Cove was a non-existent alternative, as access to that cove is quite restricted due to its small size, shallow waters, and rocky out­crops, as shown by the government’s own non-use of the cove.

The government further argues that “Met­ric’s use of a specific barge, and Metric’s previous experience conducting beach land­ings, were not contractually guaranteed to continue indefinitely in the manner that Met­ric preferred.” Def.’s Post-Trial Reply at 9. That is true; there was no such guarantee. However, after the installation of the pon­toon, the government directed Metric to use the pontoon for all landings at Daytona Beach. At the time that Metric was awarded the contract, beach landings at Daytona Beach were not just Metric’s “preferred” landing method, rather they were the only type of landing by sea feasible on the island. The installation of the pontoon together with the government’s insistence that Metric use the pontoon system rather than beach land­ings substantially hindered and restricted Metric’s ability to land at San Nicolas Island and thus constituted a constructive change entitling Metric to an equitable adjustment.

2. Length of delay.

The changed conditions caused by the gov­ernment’s installation of the pontoon at Day­tona Beach caused Metric delays on both the roadway and airfield contracts. The extent of the delay was strongly contested at trial.

The government first raises a mitiga­tion defense, contending that Metric “had an obligation to mitigate its damages by renting a barge that was compatible with the pon­toon” such as the barge rented from Foss Marine by the government, which could have been done “for a tenth of the costs it is now seeking.” Def.’s Post-Trial Br. at 18-19 (cit­ing Indiana Michigan Power Co. v. United States, 422 F.3d 1369 (Fed.Cir.2005)). Con­ceptually, the government raises a valid point. Mitigation of damages should apply to an equitable adjustment just as it does to damages sought for a quotidian breach of contract. Equitable adjustment in the con­text of a governmental-hindrance construc­tive change constitutes a specialized remedy for what would otherwise be a breach of the implied covenant duty of good faith and fair dealing. See supra, at 817 & n. 19. In this instance, once the pontoon was installed and Metric was directed to use it, Metric was under an obligation to mitigate its losses or damages. See Indiana Michigan, 422 F.3d at 1375 (“[0]nee a party has reason to know that performance by the other party will not be forthcoming [or, here, that performance will be hindered by actions of the other par­ty], ... he is expected to take such affirma­tive steps as are appropriate in the circum­stances to avoid loss by making substitute arrangements or otherwise.”) (quoting Re­statement (Second) of Contracts § 350 cmt. b). In this respect, the government bears the burden of proof, i.e., to eliminate or reduce the claimant’s damages, the govern­ment must show that the claimant’s actions were unreasonable. See id. (A non-breach­ing party is “ ‘not precluded from recovery to the extent that [it] has made reasonable but unsuccessful efforts to avoid loss’ ” (quoting Restatement (Second) of Contracts § 350(2))); see also T.C. Bateson Constr. Co. v. United States, 162 Ct.Cl. 145, 319 F.2d 135, 160 (1963); Spodek v. United States, 73 Fed.Cl. 1, 19 (2006) (“[I]t is the breaching party’s burden to prove that the actions tak­en in mitigation were not reasonable.”).

Metric resists the government’s mitigation defense on several grounds. First, immedi­ately after the Navy’s installation of the pon­toon, it sought permission to continue landing on the beach. PX 21 (Letter from Holmes to ROICC (Jan. 6, 1999)); see also PX 22 (Let­ter from Metric to ROICC (Feb. 11, 1999)). Five months later, that permission was granted, although Metric was no longer per­mitted to build sand ramps on the beach in connection with its beach landings. Tr. 82:5-­8 (Kostelny). Moreover, Metric did use the pontoon for six landings, between January and April 1999, when the weather conditions, tides, and absence of sand build-up in front of the pontoon made such landings possible. See supra, at 811 n. 9.

In support of its position, the government points out that Mr. Miller testified at trial that “We could have hired Foss Marine,” Def.’s Posh-Trial Sur-Reply Br. at 1 (quoting Tr. 1173:4r-8 (Miller)); however this state­ment was only in response to the ability to hire the Foss barge to move rolling stock, not bulk aggregate, to San Nicolas Island. Tr. 1173:4-8 (Miller). The facts presented at trial showed that Metric could not have effec­tively hired and used the barge that Navy leased from Foss Marine for two reasons. First, Metric’s barge transported bulk mate­rial while the Navy’s barge was built and operated only to move rolling stock. Tr. 87:6-7 (Kostelny). Metric required the abili­ty to move bulk material in order to perform its work on the island. Second, the Foss Marine barge was under contract to the Navy and was used consistently by the Navy, Tr. 306:19 to 308:14 (Kostelny), and thus was largely unavailable for rent by Metric. Con­sequently, the facts indicate that the actions Metric took by way of mitigation were not unreasonable, and in this regard the govern­ment has failed to meet its burden of show­ing that an equitable adjustment for Metric should be eliminated or reduced on unreason­able-mitigation grounds.

In its submissions to the Navy’s contract­ing officer, Metric claimed that the installa­tion of the pontoon caused a total of 368 days of delay: 25 days on the airfield runway project, 146 days on the roadway repair pro­ject, and 197 days concurrent for both pro­jects. PX 7 (certified claims) at 67. Metric derived the delay periods by analyzing the number of barge-landable days between Jan­uary 1, 1999 that were not used for that purpose, also taking into account the number of barge landings that were actually made during that period, and comparing the num­ber of barge landings that were necessary to deliver the requisite materials. PX 7 (certi­fied claims) at 70-75; Tr. 495:3 to 499:16, 503:16 to 551:13 (Holmes). As noted previ­ously, the Navy’s contracting officer did not respond to Metric’s claims.23

To prepare for trial, Metric retained Mr. Stuart Burnell of Hainline & Associates to do a schedule analysis, and Mr. Burnell pre­pared a report summarizing the results of his review of the project records. See Tr. 1283:24 to 1284:13 (Burnell); PX 5 (Hainline Analysis). Mr. Burnell started his evaluation by accepting the recitations in the contracts that the supply of construction materials to the island was the critical step in completion of the projects, see PX 5 (Hainline Analysis) at 3, and then prepared a “collapsed as-built analysis” to quantify the delay due to the installation of the pontoon. Id. at 5. That method of analysis compared the actual pro­ject completion with a completion date calcu­lated on a collapsed as-built schedule. Id. He took into account losses in production due to “the repeated starting] and stopping of the work which is directly related to delayed material deliveries.” Id.; see also Tr. 1314:8 to 1360:13 (Burnell). He concluded that a delay of 310 days was attributable to the Navy’s actions. PX 5 (Hainline Analysis) at 6-7 & Ex. 5B; Tr. 1360:4-13 (Burnell).

Hainline’s analysis was criticized by the government’s construction scheduling expert, Ms. Patti Jones. See DX 1001 (Jones Re­port) at 20-28; Tr. 2027:24 to 2032:18 (Jones). Ms. Jones focused on Hainline’s failure to account for time lost due to equip­ment break-downs and mechanical problems, DX 1001 (Jones Report) at 21-25; Tr. 2070:22 to 2074:19 (Jones), and Metric’s fail­ure to achieve planned production rates for asphalt. DX 1001 (Jones Report) at 25-26; see also Tr. 2074:20 to 2078:5 (Jones). Ms. Jones attributed the production losses to “Metric’s failure to adequately staff the pro­jects which caused crews to be shifted be­tween projects C-6807 [the airfield contract] and C-5553 [the roadway repair contract] rather than working the projects concurrent­ly as two distinct contracts.” DX 1001 (Jones Report) at 28.

Ms. Jones’s critique has merit, particularly insofar as it relates to Hainhne’s methodolo­gy. Hainline’s “collapsed as-built analysis” did not adequately take into account the ef­fect the asphalt batch-plant fire had on Met­ric’s operations, nor did Hainline appropri­ately reflect equipment outages for necessary repairs, barge inspections, and the like. Moreover, Hainhne’s attribution of losses in production to “repeated starting] and stop­ping of the work,” PX 5 (Hainline Analysis) at 5, was not necessarily an aspect of the projects that could be attributed to the Navy’s installation of the pontoon, even indi­rectly. Accordingly, the court will not accept Hainhne’s analysis of the delay in the pro­jects attributable to the pontoon.24

Metric has, however, proven that installa­tion of the pontoon caused it to abort at­tempted landings on particular occasions, specifically on January 4, 1999, February 4, 1999, February 25 and 26, 1999, and March 30,1999. See supra, at 809-11. The circum­stances in which those attempted landings on the pontoon were aborted indicate that land­ings more likely than not could have been made successfully on the beach on those occasions. In essence, Metric was not able to make any landings on the pontoon during the first ten working days in January 1999, nor was it able to land its barge from Febru­ary 17, 1999 until April 14, 1999, a period of 55 days. See DX 1001 (Jones Report) at 10; DDX 1018 (Jones demonstratives) at 16. The four aborted barge deliveries during that period prevented construction materials from being landed on the island in a timely way and caused a corresponding delay in comple­tion of two projects. As a result, the court finds that Metric should receive an equitable adjustment for a 65-day period of delay di­rectly caused by the Navy’s installation of the pontoon.25

The court recognizes that Metric’s land­ings on the beach after May 3,1999, once the Navy installed new deadmen and gave per­mission to again use the beach for barge landings, were made more time-consuming and difficult because Metric was precluded from building sand ramps and using mats on the ramps. However, the court has no evi­dence before it to make findings respecting any added cost attributable to those hin­drances, and, accordingly, it may not make any award in that regard.

3. Scope of waiver and release.

Finally, the government argues that Met­ric waived and released its claims by exeeut­ing Modification No. P00001 to the roadway project. Def.’s Posh-Trial Br. at 35.26 This modification provided a no-cost extension of 384 days, from June 12, 1999 to June 30, 2000, “due to batch plant fire, weather, etc.” DX 1001 (Jones Report) at 143 (Modification P00001 of Roadway Contract). The modifi­cation also included a “Contractor’s State­ment of Release,” applicable to “the work as herein revised.” Id. (quoted more fully su­pra, at 811-12). The government interprets this no-cost extension as a waiver of Metric’s pontoon claims for the roadway project. Def.’s Posh-Trial Br. at 35-36.

Metric argues that the waiver in Modifica­tion No. P00001 does not apply to its pontoon claims for the roadway contract because the modification was signed only “under the con­tracting officer’s assurance that the change order would not act as a full release of Metric’s pontoon claim.” PL’s Post-Trial Br. at 37. There is evidentiary support for Met­ric’s position. Prior to signing the modifica­tion, Metric’s president, Mr. Miller, contacted Ms. Martoniek, the contracting officer who executed the modification on behalf of the government, and obtained her representation that the modification would not release Met­ric’s rights regarding the pontoon claim. Tr. 964:8 to 969:10, 1152:3-18 (Miller). Metric asserts that this action was taken because of the patent ambiguity in the language of the then-proposed modification caused by the use of the words “etc.” and “work as herein revised.” PL’s Posh-Trial Reply at 19.

The government responds that “plain­tiffs reliance upon these alleged oral assur­anees is precluded by the parol[] evidence rule.” Def.’s Post-Trial Br. at 36. General­ly, under the parol evidence rule extrinsic evidence predating a written agreement may not be used “to add to or otherwise modify the terms of a written agreement in instanc­es where the written agreement has been adopted by the parties as an expression of their final understanding.” Barron Banc­shares, Inc. v. United States, 366 F.3d 1360, 1375 (Fed.Cir.2004). This rule is not apt here, however, because Mr. Miller’s conver­sation with the Navy’s Contracting Officer addressed a patent ambiguity in the prof­fered text. See E.L. Hamm & Assocs., Inc. v. England, 379 F.3d 1334, 1339 (Fed.Cir.­2004) (“[W]hen a contractor is faced with an obvious omission, inconsistency or discrepan­cy of significance, he is obligated to bring the situation to the government’s attention if he intends subsequently to resolve the issue in his own favor.”) (citing Space Corp. v. United States, 200 Ct.Cl. 1, 470 F.2d 536, 538 (1972)).

Ambiguities are typically resolved against the drafter under the doctrine of contra proferentum, but an exception to that general rule arises where the ambiguities are “so ‘patent and glaring’ that it is unreason­able for a contractor not to discover and inquire about them.” HPI/GSA-3C, LLC v. Perry, 364 F.3d 1327, 1334 (Fed.Cir.2004) (quoting Triax Pac., Inc. v. West, 130 F.3d 1469, 1474-75 (Fed.Cir.1997)). “The exis­tence of a patent ambiguity in a government contract ‘raises the duty of inquiry.’ That duty requires the contractor to inquire of the contracting officer as to the true meaning of the contract before submitting a bid____Absent such inquiry, a patent ambi­guity in the contract will be resolved against the contractor.” Triax Pac., 130 F.3d at 1474-75 (citations omitted). A patent ambi­guity exists when the ambiguity in the con­tract is “obvious, gross, [or] glaring,” NVT Tech., Inc. v. United States, 370 F.3d 1153, 1162 (Fed.Cir.2004), such that “[a] reason­able contractor studying the specifications prior to submitting a bid would have recog­nized the ambiguity.” Triax Pac., 130 F.3d at 1475. The doctrine is “designed to ensure, to the greatest extent possible, that all par­ties bidding on a contract share a common understanding of the scope of the project,” but the rule is not given broad application because it “has the effect of relieving the government from the consequences of its own poorly drafted contracts.” Triax Pac., 130 F.3d at 1475.

Metric is correct in its assertion that a key aspect of the text of the extension and of the release was patently ambiguous. By using the words “etc.” after “plant fire, weather,” the no-cost extension was marked­ly ambiguous in reciting the causes for the extension. “Etc.” by its very nature is indef­inite. Literally translated from the Latin, it means “[a]nd other things” and the term “usu[ally] indicates additional, unspecified items in a series.” Black’s Law Dictionary at 592 (8th ed.2004). Moreover, “work as herein revised” as used in the accompanying release was also patently ambiguous because the contract modification covered a substan­tial number of additions and deletions to the project as well as the no-cost time extension. In short, Metric had a duty of inquiry re­specting patently ambiguous proposed terms, and it fulfilled that duty by inquiring of the contracting officer whether the modification and release would embrace the pontoon claim. Accordingly, the patent ambiguity is not resolved against Metric because it ful­filled its obligations to inquire about and to resolve the ambiguity prior to signing the modification.

Nothing in the factual record at trial sup­ports the government’s contention that the no-cost extension and release encompassed and elided Metric’s pontoon claim for the roadway project. The pertinent contracting officer, Ms. Martonick, did not testify at trial, and no contemporaneous writing that related to the cause of the no-cost extension or the scope of the release was put into evidence. The only documentary evidence on the issue indirectly supports Metric’s position. That evidence, an e-mail exchange seven months after Modification No. P00001 was executed, shows that a succeeding contracting officer, Ms. Carrignan, anticipated that Metric would pursue a claim for equitable adjustment. Ms. Carrignan wrote: “As we both know, these are not the last of the claims [Metric] will be filing—I imagine the one for the pontoon issue will be a doozieü” PX 5 (Hainline Analysis) at 182. The evidentiary record thus contains only the patently ambig­uous language drafted by the Navy, Mr. Mil­ler’s testimony about his conversation with the contracting officer, Ms. Martoniek, and the subsequent commentary by a different contracting officer, Ms. Carrignan. The evi­dence proffered by Metric is sufficient to satisfy its burden on this matter.

One further issue arises respecting the no-­cost extension and accompanying release. The government falls back on an argument that Metric had an obligation to except from the release a known claim, even one that had not yet been submitted. See Def.’s Post-­Trial Br. at 36-38; Def.’s Post-Trial Sur­Reply at 20-21 (citing Mingus Constructors, 812 F.2d at 1394). This position would have merit if the release itself was explicit. Com­pare Vann v. United States, 190 Ct.Cl. 546, 420 F.2d 968, 972 (1970) (a claim not specifi­cally delineated in an exception to a release is thereafter barred), with H.L.C. & Assocs. Constr. Co. v. United States, 176 Ct.Cl. 285, 367 F.2d 586, 593 (1966) (a discretionary release tendered by the contractor “was so broad” as to be virtually meaningless and was rendered ineffective).27

The release, however, was tied to the terms of the modification, applying to “the work as herein revised,” including the no-cost time extension, and did not have the effect the government ascribes to it. Other prece­dents are more similar to the facts in the case at hand. In C & H Commercial Con­tractors, Inc. v. United States, 35 Fed.Cl. 246 (1996), a contractor which signed a modifica­tion with a release analogous to that signed by Metric established that the government had assured it that the release language would not bar subsequent claims for delay and impact costs. The government later as­serted that the contractor’s claims were barred by the parol evidence rule. The court rejected the government’s position, deeming it to be “outrageous,” and allowed plaintiff to prove its entitlement to compensation. Id. at 257. The government argues that C & H Commercial differs from Metric’s circum­stances because in C & H there was more evidence of misrepresentation than in Met­ric’s situation. Def.’s Post-Trial Br. at 38. The government’s proffered distinction is not persuasive.

In another similar case, Laka Tool & Stamping Co. v. United States, 226 Ct.Cl. 83, 639 F.2d 738 (1980), the court held that an accord and satisfaction did not bar a contrac­tor’s equitable claim for pre-modification costs incurred in attempting to comply with impossible government-drafted design speci­fications. Although the contract did not spe­cifically reserve the right to pursue equita­ble-adjustment claims, the court held that the contractor did not waive these rights because there was no evidence that the par­ties meant it to bar the initial claim. Id. at 743. The principle in Laka pertains equally to this case: given the Contracting Officer’s response to Mr. Miller’s inquiry, there was no need for Metric to specifically reserve the right to bring its equitable adjustment claims for the government’s installation of the pon­toon. Accordingly, the court holds that Met­ric did not waive or release its pontoon claims by entering into Modification No. P00001.

B. Arresting-Gear Claim

1. Asphalt.

Metric claims that the government’s multiple rejections of the asphalt placed at the 30-end arresting gear location constitut­ed a constructive change to the contract, entitling Metric to an equitable adjustment for the resulting delays. Pl.’s Post-Trial Br. at 29. The manner and method of installing and placing the asphalt was set out in the contractual specifications for the airfield work, as modified by Change Order No. P00017. PX 129 (Modification of Airfield Contract) at 3. Part of the work to replace the arresting gear on the runway required Metric to install a three-foot wide patch of asphalt between the existing runway asphalt and newly placed concrete. PX 6 (Hainline Arresting Gear Analysis) at 13 (Arresting Gear Modification). Metric installed the as­phalt using hand-placement, as set forth in the specifications, because a paving machine could not be used for such a narrow area. PX 126 (Proposal for Contract Modification (July 14, 2000)); Tr. 605:1 to 611:22 (Holmes), 1022:11 to 1023:2 (Miller). The government rejected this work three times, claiming each time that excessive aggregate was exposed, which could result in dislodged rock and cause damage to aircraft engines. Tr. 2268:16 to 2669:17 (Douglas). The Navy also disapproved of the work because the asphalt and concrete were not “flush,” giving rise to the possibility that an airplane tail-­hook could catch at the differential elevation. PX 43 (Quality Control Meeting Notes) at 1. Ultimately, Metric was able to complete the work to the government’s satisfaction by cut­ting out an eight-foot patch and using a paving machine on this area. See supra, at 813-14.

Metric believes that its disapproved at­tempts to install asphalt were contractually conforming and thus that the government’s rejection was improper. In Metric’s view, the repeated rejections constituted a con­structive change to the contract because “the finish the government wanted exceeded what the specification required.” Cl. Tr. 66:20-23. Because approved results could only be ob­tained by cutting out additional asphalt and using a paving machine on the enlarged width, Metric contends that it was required to do more than “patch” the asphalt that contractually had to be replaced. Cl. Tr. 64:12-16, 69:1.28

The government responds that Metric’s initial efforts to place asphalt for the arrest­ing gear at the 30-end of the runway did not conform to the contract’s quality-control re­quirements and did not comply with the re­quirement that the seam between asphalt and concrete be “flush.” Def.’s Post-Trial Br. at 20. The government’s view is “[t]o the extent that [Metric was] delayed by it[ ]s own failures,” the government has no liability for that delay. Id. at 20.

The facts indicate that the “flush” and tolerance were not the cause of Metric’s problems with the hand-placed asphalt for the 30-end of the runway. Rather, rock at the surface of the asphalt engendered the Navy’s concerns. Tr. 270:3-8 (Kostelny) (“[The rejections were] basically for the rock pockets.”). Metric was able to complete the assigned work by using a paving machine following contractual specifications for that type of asphalt placement. Metric’s related contention that the type of mix specified in the contract was inappropriate for hand placement similarly fails because Metric had options about how to complete the work un­der the contract. The key fact on this issue is that Metric’s problems with its asphalt installation at the 30-end of the runway were susceptible of resolution under the contract’s terms, and they were not ineluctably caused by inappropriate or defective specifications.

2. Rubber rails.

Metric contends that the govern­ment’s directive for Metric to salvage the rubber rails and reinstall them was a con­structive change to the contract, entitling Metric to an equitable adjustment. The gov­ernment takes a differing view of the con­tract specifications, viewing them as “unam­biguously requiring] Metric to remove the original rubber rail[s] and to ‘reinstall’ or ‘refasten’ [them].” Def.’s Post-Trial Br. at 21 (citing DDX 1018 (Jones demonstratives) at 58).

This controversy turns on the terms of the contractual modification that added the arresting-gear project to the airfield con­tract. The government points to Engineer­ing Drawing Sheet C-25 as justification for a requirement that Metric save the existing rubber rails or provide new rubber rails. Def.’s Post-Trial Br. at 10. This drawing provided that Metric was to “remove cable support rail, weld new c-channel to ex­isting] I beam and reinstall cable support rail.” DDX 1018 (Jones demonstratives) at 58. This document was part of the original contract, dated September 29, 1993, and was not included as part of Change Order No. P00017. Later documents contradict Draw­ing Sheet C-25. The government’s request for proposal required Metric to “[r]emove and dispose” of the “existing concrete and rails of the arresting gears,” and then “[fin-­stall new concrete and rails.” PX 120 (Let­ter from Carrignan to Metric (June 23, 2000)). The modification that was conse­quently issued made no reference to Draw­ing Sheet C25, but instead required Metric to “[r]eplace concrete as per details shown on drawing number T04972 and per specifi­cations in contract number N62474-94-C­6807.” PX 6 (Hainline Arresting Gear Analysis) at 11 (Arresting Gear Modifica­tion) (capitals omitted). Drawing T04972 was included as part of the modification and requires the “[demolition of all existing concrete gear material.” PX 6 (Hainline Arresting Gear Analysis) at 13 (Arresting Gear Modification).

Furthermore, Drawing T04972 notes that “New I beam to be drilled and tapped prior to installation. Government will furnish template for location of holes.” PX 6 (Hain­line Arresting Gear Analysis) at 13 (Arrest­ing Gear Modification) (capitals omitted). The government would not have needed to provide a template for the holes if the plan was to use the existing rails, and the new template was for rubber rails of a length that did not match the existing rubber rails. Cl. Tr. 70:12-24.

Moreover, the Navy’s contemporaneous ac­tions showed an intent to provide new rubber rails. Mr. Douglas in his daily report for September 4, 2001, stated that he “[t]old Contractor that the rubber rails (existing) will be installed when they ... complete the 30 end Arresting gear if the other ones don’t arrive.” PX 47 (Daily Reports to Inspector) at 18. The report from the following day states, “Have told contractor to install exist­ing rubbers that were not waiting or being delayed by customer on trying to get 10' rubber from Air Ops Point Mugu.” PX 47 (Daily Reports to Inspector) at 17. Had new rails not been expected by the parties, there would have been no need for the government to direct Metric to install the existing rails.

The drawings and contractual documents associated with the arresting-gear modifica­tion thus contemplated that the rubber rails with the arresting gear would be replaced along with the other components of the gear, and the Navy’s contemporaneous actions sup­ported that contemplation. The govern­ment’s decision that Metric reuse the original rubber rails constituted a constructive change to the contract, and Metric is due an equitable adjustment for this change and the resulting delays.

3. Synopsis.

The government is liable for an equitable adjustment to Metric for a constructive change relating to the rubber rails, but not for the delays experienced by Metric while completing the asphalt work for the 30-end of the arresting-gear project. Because Met­ric’s work on the 30-end arresting gear was complete on August 27, 2001, except for the rubber rails, and the rails were not obtained and installed to obtain final approval until November 8, 2001, see swpra, at 814-15, the compensable delay on the arresting gear pro­ject is limited to 73 days.29

C. Contaminated Soil

Metric admits that it spilled hazard­ous materials on occasion throughout the course of the project. Tr. 216:6 to 218:10 (Kostelny). Metric further acknowledges that it placed a bucket-load of contaminated material at the edge of the Sand Spit stock­pile and that it was obliged to identify and remove that material. Pl.’s Post-Trial Reply at 8. However, Metric believes that “[t]he specifications did not require Metric to ... elean-up contaminated soil at the conclusion of the project that Metric had not caused.” Pl.’s Post-Trial Br. at 30.30 The requirement that Metric clean up all contaminated milled asphalt and concrete at the Sand Spit stock­piles is contested as a constructive change to the contracts. The government responds that Metric “was unable to prove that its soil contamination was limited to an area that is smaller than the 200 cubic yards that Metric was required to remove.” Def.’s Posh-Trial Br. at 22.

The government’s clean-up requirement caused Metric to remove one-half to two-­thirds of the milled stockpiles. See supra, at 815-16. Apart from the hydraulic leak that Metric conceded resulted in contamination, Mr. Schwartz, the environmental protection specialist at San Nicolas Island, surmised that the contamination in the milled stock­piles was caused by materials transported to the site, not an occurrence at the Sand Spit itself. Tr. 1762:15 to 1768:23 (Schwartz). The source of the grinds was asphalt and concrete removed by Metric during work on the airfield and roadway projects. Tr. 2274:12 to 2275:23 (Douglas). The contami­nants found included diesel fuel, jet fuel, and other petroleum products that are typically found on a roadway or airfield. DX 1001 (Jones Report) at 59-60. Accordingly, a pre­ponderance of the evidence shows that the contamination came from work of other con­tractors or from leaks and spills on the roads and runway that were taken up with the concrete and asphalt that was milled for re­cycling and reuse as road base. The govern­ment’s requirement for Metric to remove the contaminated materials without evidence that Metric caused the contamination of the grinds constitutes a constructive change to the contracts, and the government is liable for the portion of the clean-up attributable to contamination caused not by Metric but by other contractors and the Navy itself.

D. Quantum

1. Rate for equipment on standby.

By far the most significant elements of the quantum of the equitable adjustments sought by Metric relate to standby equipment costs. Most of the equipment used by Metric on the airfield and roadway projects was owned by Metric or its co-venturer, Mr. Holmes. Thus, direct leasing costs are not available and the calculation of quantum focuses on appropriate deemed or allocated costs for owned equipment. In calculating the com­pensation due to Metric for its ownership costs during the periods of delay, Metric and its experts used rates from the Dataquest Blue Book Metric supports this use by con­tending that the Blue Book is widely accept­ed in the construction industry to determine rental-equipment operating rates on both public and private projects. Metric also av­ers that “[e]ven the government’s expert agreed that the FARs allow for the use of the Blue Book if that decision is made by the contracting agency.” Pl.’s Posh-Trial Reply at 9 (citing Tr. 1691-93 (Test, of Paul Pepin, plaintiffs expert cost accountant) and Tr. 1959 (Test, of David Cotton, government’s expert accountant)). On the other hand, the government argues that the Blue Book’s rates are “inflationary” and “[tjhere is no contractual provision that authorizes or man­dates the use of [Bjlue [B]ook rates for an equitable adjustment or certified claim.” Def.’s Post-Trial Br. at 14 (citing Tr. 1056 (Miller)).

The contracts incorporate 48 C.F.R. § 252.243-7001, part of the Defense Federal Acquisition Regulation Supplement (“DFARS”), which specifies that “[wjhen costs are a factor in any price adjustment under th[e] contract, the contract cost princi­ples and procedures in FAR [P]art 31 and DFARS [Pjart 231, in effect on the date of th[e] contract, apply.” In turn, FAR § 31.105(d)(2)(i) provides:

(A) Actual cost data shall be used when such data can be determined for both own­ership and operating costs for each piece of equipment, or groups of similar serial or series equipment, from the contractor’s ac­counting records. When such costs cannot be so determined, the contracting agency may specify the use of a particular sched­ule of predetermined rates or any part thereof to determine ownership and oper­ating costs of construction equipment____

(B) Predetermined schedules of construc­tion equipment use rates (e.g., the Con­struction Equipment Ownership and Oper­ating Expense Schedule published by the U.S. Army Corps of Engineers, industry sponsored construction equipment cost guides, or commercially published sched­ules of construction equipment use cost) provide average ownership and operating rates for construction equipment.

(Emphasis added).

Consequently, the DFARS and FAR Part 31 call for a hierarchy of means of deriving ownership and operating costs for construc­tion equipment, starting with actual-cost data and progressing to “predetermined sched­ules” as agreed in particular instances. The Blue Book is such a predetermined schedule of construction use rates, as are Army Corps of Engineers manuals, the Caterpillar Hand­book, and other similar publications.31

Both parties agree that the use of actual cost data is not possible here because Metric did not break its equipment costs down into identifiable costs for each piece of equipment. Metric averred that “[maintaining the rec­ords and allocating the costs for each dollar spent on each piece of equipment and record­ing the manhours spent on repairing and maintaining each piece of equipment would have been a nightmare.” Pl.’s Post-Trial Reply at 10. Rather, Metric submits that costs such as maintenance in a corrosive environment, repairs, permitting and licens­ing, replacement costs in the case of the asphalt batch plant, and transportation, all contributed to the fact that Metric ended up being out of pocket $2,000,000 on the project, exclusive of Mr. Holmes’ indirect equipment costs. Pl.’s Post-Trial Reply at 10 (citing Tr. 661-68 (Holmes), 1930-31 (Cotton); DX 1002 (Cotton Report) at 121).

Metric contends that the government “agreed at the start of the project that Blue Book rates would be used to calculate the owned equipment costs.” Pl.’s Post-Trial Br. at 34, 36; Tr. 454:16-22 (Holmes); Tr. 925:1-16 (Miller). No writing supported such an agreement. Instead, Metric seeks to find evidence of agreement in the Navy’s use of Blue Book values in prior allowed claims on the runway project. Tr. 454:18-22, 553:4 to 557:22 (Holmes), 925:5-25 (Miller). The government presented no witnesses to con­tradict this claimed agreement. Prior imple­mentation and practice under these contracts could indeed be probative of the parties’ un­derstanding of contractual terms. See Brooklyn Life Ins. Co. of N.Y. v. Dutcher, 95 U.S. 269, 273, 24 L.Ed. 410 (1877) (“The practical interpretation of an agreement by a party to it is always a consideration of great weight. The construction of a contract is as much a part of it as anything else. There is no surer way to find out what the parties meant, than to see what they have done.”); Chicago v. Sheldon, 9 Wall. 50, 76 U.S. 50, 54, 19 L.Ed. 594 (1869) (“[I]n an executory contract, ... where its execution necessarily involves a practical construction, if the minds of the parties concur, there can be no great danger in the adoption of it by the court as the true one.”); Blinderman Constr. Co. v. United States, 695 F.2d 552, 558 (Fed.Cir.­1982) (“It is a familiar principle of contract law that the parties’ contemporaneous con­struction of an agreement, before it has be­come the subject of a dispute, is entitled to great weight in its interpretation.”). Here, a preponderance of the evidence indicates an agreement between the parties to use Blue Book rates for owned equipment.

A controversy also exists over the standby rates to be used for Metric’s older equip­ment. Metric and its experts used Blue Book Volume 3 for the older equipment. That volume applies to equipment between 11 and 20 years old. Tr. 1945:17-25 (Cot­ton).32 The government’s expert accountant, Mr. Cotton, prepared an attachment to his expert report that showed what he consid­ered to be inflationary rates for six pieces of equipment, generating $2,456,870 more than he believed necessary for an equitable ad­justment. See DX 1002 (Cotton Report) at 123. In preparing his analysis, Mr. Cotton broke down the costs into Blue Book ele­ments for depreciation, cost of facilities capi­tal, and indirect costs. In calculating the depreciation, he did not use the Blue Book but rather did calculations based on an un­specified Army Corps of Engineers manual. Mr. Cotton then applied these modified rates to establish the cost of facilities capital. However, no Corps of Engineers manual was ever adopted by the parties as the appropri­ate schedule of standby rates, and invocation of an unspecified Corps Manual by Mr. Cot­ton was not appropriate. Furthermore, al­though the age of the equipment is certainly relevant to deriving an appropriate standby rate, the Blue Book takes that into account by devoting a separate volume, Volume 3, to rates for older equipment (ie., generally, equipment between 11 and 20 years old). Tr. 1945:17-25 (Cotton); see also Tr. 790:2-8 (Holmes). The fact that equipment might be sufficiently old that it has been fully depreci­ated is not a basis for disallowing a standby rate. See In re Marshall Assoc. Contractors, Inc., 2002 WL 504788 (I.B.C.A.2002) (“[Fjully depreciated equipment is clearly entitled to reasonable ownership rental rate reimburse­ment.”). Such equipment has to be repaired and maintained in good operating condition to remain functional, and the repairs and maintenance have a cost.

Metric also takes issue with Mr. Cotton’s analysis because he did not include indirect costs; he had opined at trial that such costs “would have either been claimed as a direct job cost, or possibly included in Metric’s overhead.” Pl.’s Post-Trial Reply at 9-10 (citing Tr. 1935:6 to 1936:2 (Cotton)). As a result, Mr. Cotton testified that the Blue Book’s inclusion of some indirect costs was inappropriate in the circumstances:

A [Mr. Cotton] ... The Blue Book allows you to calculate either a stand-by rate or an operating rate for equipment.

Q The ownership costs include deprecia­tion, is that right?

A Yes.

Q And the cost of facilities, which we talked about as basically interest.

A Yes.

Q It also includes some indirect costs, correct?

A Yes.

Q In your calculation, did you look at the indirect costs?

A In my analysis of the six items for which we had acquisition cost informa­tion, I took out the indirect cost factor. Because, as the Blue Book indicates, that factor represents indirect costs that some contractors account for else­where. And in this ease, those costs would have either been claimed as a direct job cost, or possibly included in Metric’s overhead.

Tr. 1935:6 to 1936:2 (Cotton). However, in this instance, Metric has not claimed the indirect costs as a separate category of com­pensable equitable adjustment, nor is there any evidence that it generally incorporated such costs in its overhead. Thus, Mr. Cot­ton’s invitation to remove indirect costs of equipment on standby is not accepted, and the Blue Book inclusion of such costs in the standby rates will be honored.

The parties also disputed whether it would be appropriate to make an adjustment for the Blue Book rates for the location of the work. Metric claimed that “severity factor” of 25 percent, should be applied to the Blue Book standby rates to account for the fact that the equipment was being used on an island affected by wind-blown, corrosive salt spray. PL’s Post-Trial Reply at 17 (citing Tr. 1685:25 to 1687:2 (Pepin)); see also Tr. 1277:11-21 (Miller). The government coun­ters with an argument related to “[rjegional adjustment factors,” Def.’s Post-Trial Br. at 28-29 (quoting DX 1002 (Cotton Report) at 26 (quoting in turn Dataquest Blue Book)), which in Blue Book parlance refers to gener­al climatic conditions in an area. DX 1002 (Cotton Report) at 26-27. The government notes that the “[rjegional adjustment factors [in the Blue Book] for Southern California vary from .93 to 1.0,” Def.’s Posh-Trial Br. at 29, which would reduce the Blue Book rates rather than increase them.

Factually, the working conditions on San Nicolas Island are such that it is appropriate to apply a severity factor and not an area adjustment factor to equipment used in that work. The island’s relatively remote location in an area frequented by winds and surf, the island’s small size, and the facts that the construction work largely took place on the periphery of the island and the staging and storage areas for equipment were also at or near the periphery of the island meant that Metric’s construction equipment was con­stantly exposed to a corrosive environment. These conditions were not those applicable to a typical construction project in the Southern California area. Consequently, Metric has established that a severity factor should be applied to the Blue Book standby rates. See In re Marshall Assoc. Contractors, 2002 WL 504788 (finding appropriate an adjustment of 39 percent to the Blue Book rates, to account “for the exceptional deterioration of the equipment used on the project”).

A residual question is what the appropriate severity factor should be in all the circum­stances. Metric’s claimed factor of 25 per­cent is not supported by any detailed analy­sis or reference to repair rates, maintenance costs, or rates that have been applied in comparable situations. The government sim­ilarly offered no detailed analysis or showing. There is evidence in the record that the Navy had previously applied a severity factor of 15 percent to prior, allowed claims by Metric for adjustments to work on the island. Tr. 1686:5 to 1687:2 (Pepin). Thus, the rec­ord supports the application of a severity factor but not one as high as the 25 percent that Metric has claimed. Given the sparse and fragmentary evidence available respect­ing this issue, the court concludes that a severity factor of ten percent should be ap­plied to the standby Blue Book rates for Metric’s equipment.

Accordingly, Blue Book standby rates will be applied to Metric’s equipment rendered inactive for periods of time due to the Navy’s constructive changes to the roadway and air­field contracts, and a ten percent severity factor will be added to those rates.

Wholly apart from the questions whether to apply Blue Book standby rates and wheth­er a severity factor is appropriate, the par­ties also contested aspects of the overhead and profit to be applied to the standby equip­ment rates. Metric’s claimed home-office overhead was 8.45 percent. See PX 7 (certi­fied claims) at 8. The DCAA considered this percentage to be excessive as did the govern­ment’s expert, Mr. Cotton. See PX 328 (DCAA Audit Report) at 23-24; PX 335 (Supp. DCAA Audit Report) at 23-24. In response to these criticisms, Mr. Miller ad­justed Metric’s overhead rate downward to 5.31 percent. See PDX 3 (Arresting Gear Summary) at 1. An overhead rate of 5.31 percent accords with the overhead rates al­lowed in other similar cases, see ACE Con­structors, 70 Fed.Cl. at 279-80 (allowing a home-office overhead rate of 5.8 percent), and the court will apply that rate here.

Metric sought a relatively high profit mar­gin of twelve percent. See PX 7 (certified claims) at 8. This rate was strongly contested by Mr. Cotton, who opined that no profit should be allowed because Metric had been steadily losing money on the airfield and roadway projects. He had examined Met­ric’s financial statements over a four-year time period that included the time up to and through the pontoon claim and found that Metric’s profitability was “a negative 5 per­cent.” Tr. 1822:25 (Cotton). The court does not doubt the accuracy of Mr. Cotton’s analy­sis, but his conclusion that no profit should be allowed cannot be accepted. Instead, the court will reduce Metric’s claimed profit to ten percent, an allowance that is fairly stan­dard. See ACE Constructors, 70 Fed.Cl. at 279 (allowing a ten percent profit, citing fac­tual evidence adduced in that case as well as John Cibinie & Ralph Nash, Administration of Government Contracts 754 (3d ed.1995)).

Finally, Metric included in its claimed equipment rates for the pontoon claim a so-­called “market” rate of $30,000 per month (or $1,000 per day) for its barge. PX 7 (certified claims) at 9. That rate also was strongly contested by Mr. Cotton. See, e.g., DX 1002 (Cotton Report) at 17 (“Metric’s barge costs are grossly overstated” (capitals omitted)). In post-trial briefing, Metric conceded that it “should not have used the $30,000 [per-­month] market rate, but does consider that the $11,614 Blue Book rate to be the appro­priate [per-month] rate to be applied in its claims.” Pl.’s Post-Trial Reply at 17. The court will apply this concession.33

With these adjustments, the equipment rate for the 65-day period of delay attribut­able to the Navy’s installation of the pontoon is $10,942.31 per day.

2. Necessary equipment.

At trial, an issue arose respecting what equipment necessarily remained on the is­land during the time Metric was on standby waiting for rubber rails to complete the 30-­end arresting gear. Mr. Holmes initially testified at trial that while Metric was wait­ing for the rubber rails, each item of equip­ment that Metric had on the island was necessary other than the asphalt paving ma­chine. Tr. 672:17 to 673:6 (Holmes). Met­ric’s claim and Mr. Burnell’s analysis of dam­ages used this baseline to request a daily rate for standby equipment of $8,252.79. PX 7 (certified claims) at 9,102; PX 6 (Hainline Arresting Gear Analysis) at 7; Tr. 676:11 to 679:25 (Holmes), 1440:9-16 (Burnell). After the government’s expert, Mr. Cotton, testi­fied questioning the need to have most of the equipment on the island to complete the work, Tr. 1848:22 to 1852:15 (Cotton); DDX 1019 (Cotton demonstrative) at 105-112; DX 1002 (Cotton Report) at 21-22, Mr. Miller opted to reduce Metric’s claim by eliminating standby costs for some equipment that he conceded was not necessary to complete work on the arresting gear. Tr. 2354:15-21 (Miller). Mr. Miller prepared a fresh analy­sis of Metric’s equipment list, noting which equipment was or was not necessary to com­plete the arresting gear or to accomplish the demobilization work. See PDX 3 (Arresting Gear Summary); Tr. 2327:2-18 (Miller). Mr. Miller provided two alternative calculations, one including standby costs for the barge and the other excluding barge costs after May 5, 2001, the date when all arresting gear mate­rials had been delivered to the island. PDX 3 (Arresting Gear Summary) at 3-6; Tr. 2327:8-18 (Miller). Mr. Miller’s alternative analysis recognized that the barge was still needed to remove the equipment from the island and fully demobilize Metric’s opera­tions, but Metric’s standby costs might elimi­nate the barge because the barge could have been available for rent during the time re­quired for completion of the arresting gear project and preparations for demobilization. Tr. 2828:20 to 2329:11 (Miller); PL’s Posh-­Trial Br. at 24.34

Mr. Miller’s summary totals the equipment costs and divides them by 341 days, the original time requested in Metric’s certified arresting-gear claim. PDX 3 (Arresting Gear Summary); Tr. 2330:15 to 2331:14 (Mil­ler). Metric thus requests compensation for equipment standby costs at a rate of $7,686.76 per day through May 5, 2001, and $6,506.82 for dates thereafter when the barge was no longer needed. PDX 3 (Arresting Gear Summary) at 1; Tr. 2330:10-14 (Miller). The daily rates included “[h]ome-office over­head per the Cotton Report, profit[,] and bond [costs].” PDX 3 (Arresting Gear Sum­mary). Metric applied a 25 percent severity factor and a profit of twelve percent, howev­er, both of which are excessive. See supra, at 830-31. The court has recalculated the daily equipment rate for the arresting-gear claim with a ten percent severity factor and a ten percent profit, generating a daily rate of $5,533.65.

The court accepts Mr. Miller’s revised analysis of necessary equipment because it takes account of Mr. Cotton’s criticisms and removes standby rates for equipment that was present on the island but not needed for completion of the work. Because all of the pertinent time (73 days) on the 30-end ar­resting-gear project waiting for rubber rails occurred after May 5, 2001, a daily rate of $5,533.65 will be applied.

3. Soil containment removal.

Metric seeks $183,417.78 for its demobiliza­tion and environmental clean-up efforts. Tr. 1005:3 (Miller). Metric’s claimed costs for soil removal are based on its charge to the government of twelve-thirtieths of its total costs for removing contaminated soils from San Nicolas Island, representing the claimed use of 12 of the 30 roll-off bins that Metric brought to the island for clean-up of contami­nated soils that Metric believes represent the government’s responsibility for contaminants in aggregate piles located at the Sand Spit. PX 330 (Letter from Metric to Navy regard­ing certified claim (Jan. 26, 2004)) at 2-3; Tr. 1007:16-25 (Miller).35

The government contends that Metric’s contractor IWS Environmental removed only five bins from the Sand Spit, not twelve as Metric claims. Ms. Jones, an expert in con­struction project management, scheduling, and delay, testified that IWS Environmental accounted for the bins differently than Met­ric does in its claim. Tr. 2135:22-24 (Jones). IWS Environmental’s report states that there were a total of 13 bins used for remov­als at Area of Contamination number 1, the asphalt batch plant area, 12 bins used at Area number 2, the concrete batch plant area, and five bins used for removal at Area number 3, the Sand Spit area. DDX 1028 (Jones demonstrative) at 22 (citing DX 1001 at 326-28, the report by IWS Environmen­tal). Ms. Jones recalculated the amount due to Metric based on the removal of five of the 30 bins from the Sand Spit area, or 16.66% of the total costs, which amounts to a total due of $57,950.05, including both direct and indi­rect costs. Tr. 2136:17-22 (Jones); DDX 1028 (Jones demonstratives) at 23. The court accepts this analysis by the govern­ment’s expert, Ms. Jones, and will use a baseline amount of $57,950.05 for removal of contaminants from the Sand Spit area. That amount must be adjusted, however. Metric applied a profit of ten percent as well as a home-office overhead of 8.45 percent and a bond premium of 1.15 percent to its direct costs. DX 1002 (Cotton Report) at 10. The court has reduced the home-office overhead to 5.31 percent and the bond cost to 1.05 percent to accord with its ruling regarding rates for standby equipment. The resulting amount recoverable by Metric is $56,072.47 for removal of contaminants from the Sand Spit area.

4. Synopsis.

Respecting the pontoon claims, the court finds that Metric was delayed by 65 days, not 368 days as Metric claimed. Applying a daily equipment rate of $10,942.31 per day, Metric is due an equitable adjustment of $711,250.15 for those claims. Respecting the arresting-gear claim, Metric was delayed 73 days, not 390 days as Metric claimed. Ap­plying a daily equipment rate of $5,533.65 to those days, Metric is due an equitable adjust­ment of $403,956.45 for its arresting-gear claim. Metric is also due an adjustment of $56,072.47 for removal of contaminants from the Sand Spit area.

CONCLUSION

For the reasons stated, Metric has estab­lished its entitlement to equitable adjust­ments totaling $1,171,279.07. Metric also is awarded interest at the rate specified in 41 U.S.C. § 611, calculated as to $711,250.15 from January 9, 2003, as to $403,956.45 from June 17, 2003, and as to $56,072.47 from January 26, 2004, until receipt of payment from the government. The clerk shall enter final judgment in favor of Metric as specified.

No costs.

It is so ORDERED.

[[Image here]]

1

. This recitation of facts constitutes the court’s principal findings of fact in accord with RCFC 52(a). Other findings of fact and rulings on questions of mixed fact and law are set out in the analysis.

2

. Historically, the island was home to the "Lone Woman of San Nicolas Island,” who was left behind when the rest of the native islanders moved to the mainland relatively late in the Spanish Colonial era. This tale was the basis for the award-winning children’s book, Island of the Blue Dolphins, by Scott O’Dell.

3

. Citations to the trial transcript are to "Tr___” Citations to the closing argument transcript are to "Cl. Tr.__” Plaintiff's exhibits are denoted as "PX__,” and defendant’s exhibits are identi­fied as "DX__” Plaintiff's demonstrative ex­hibits are cited as "PDX_,” and defendant’s demonstrative exhibits are denoted as "DDX

4

. The government changed the landing method "as part of a continuing and evolving ... effort to improve the facilities at [San Nicolas Island] and to reduce the environmental impact of barge landings at Daytona Beach” because the beach landing method "virtually always required the construction of large sand ramps and often in­volved disturbing protected sea mammals.” Def.’s Post-Trial Br. at 6. The method of building ramps out of sand required permits from the Army Corps of Engineers under Section 404 of the Clean Water Act, 33 U.S.C. § 1344, and Sec­tion 10 of the Rivers and Harbors Act of 1899, 33 U.S.C. § 403. See PX 18 (E-mail from Steve Schwartz to Michael Sasscer (Mar. 20, 2000)).

5

. As Mr. Holmes testified,

The major differences between the Navy's barge and our barge was our barge traveled loaded, 800, seven, eight, nine hundred tons. The Navy’s barge typically might have had two or three hundred tons. So ... when we’re drafting 8 to 10 feet they’re drafting 2 feet. So that they can get ... up to the pontoon some­times easier than we could because we had more weight on board.

Tr. 770:24 to 771:7 (Holmes).

6

. On some occasions when Metric could land its barge on the pontoon, the barge would "be 'hung up' after unloading—stuck on the beach until the next high tide float[ed] it off.” PX 22 (Letter from Metric to ROICC).

7

. Metric attempted another barge landing on March 30, 1999, and then again on March 31 1999, but was unsuccessful in each instance. DX 1001 (Jones Report) at 12.

8

. In March 1999, Metric retained American Div­ers, Inc. to do a bathymetric study and determine whether an area near the pontoon was appropri­ate for beach landings by the barge. PX 24 (Letter from Ralph Tuckfield, American Divers to Metric (March 22, 1999)). American Divers con­cluded that the area was suitable: "the bottom conditions and topography indicate a consistent sloping sand bottom----The inspected area ap­pears clear of any obstruction or anomalies that might interfere with the barge landing opera­tion.” Id. at 12-2.

9

. Between January and April 1999, Metric suc­ceeded in landing its barge six times. DX 1003 (Daily Reports) at 3991 (Feb. 2, 1999), 4020-21 (Jan. 14, 1999), 5823-24 (Apr. 14, 1999), 5883-­84 (Feb. 16, 1999), 5887-88 (Feb. 12, 1999); PX 7 (certified claims) at 73 (Apr. 19, 1999); DX 1001 (Jones Report) at 10, 16; see also Tr. 313:7 to 328:9, 330:14 to 332:24, 336:7 to 338:22, 339:13 to 340:1 (Kostelny), 543:22 to 544:16, 823:23 to 824, 909:16 to 910:10, 1112:9 to 1113:2 (Miller).

For safety purposes, Metric’s barge ordinarily landed with the deadmen in place to tie off the barge to prevent it from drifting or from slewing from side to side. Tr. 73:2 to 74:2 (Kostelny).

10

. Metric made no barge landings in May. Its barge was being repaired on May 14 through 23, 1999 and on June 3, 1999. DX 1001 (Jones Report) at 14. It made its next landing on the island on June 17, 1999. Id.

11

. Metric made a total of 21 barge landings in 1999. Tr. 825:14-25 (Holmes); DDX 1018 (Jones demonstrative) at 16. The remaining landings were in 2000. Id. The last barge load of material for the airfield and runway projects, apart from work on the arresting gear added by a later modification, was delivered on April 25, 2000. Tr. 1126:12-14 (Miller).

12

. An arresting gear is a system that allows a landing plane to drop a hook that catches a cable affixed to arrestor systems that apply strong braking force, slowing the plane rapidly in a short stopping distance. The land-based system at San Nicolas Island is used to train naval aviators prior to carrier deployment.

13

. Page two of the modification erroneously re­fers to P00016 rather than P00017. See PX 6 (Hainline Arresting Gear Analysis) at 9-10 (Ar­resting Gear Modification).

14

. The concrete installation for the project gave rise to disputes about the propriety of the instal­lation and the length of the embedded steel rails, but these issues were resolved in late November 2000 when Metric completed recommended re­pairs. PX 6 (Hainline Arresting Gear Analysis) at 15. Metric believes that the government con­tributed to a problem relating to the embedded steel beams because it provided a template for a nine foot eight inch beam but Change Order 17 specified that the new steel beams were to be ten feet long. When Metric followed the nine foot eight inch template, the government rejected the beams and required that they be extended to ten feet. Tr. 158:3 to 160:7 (Kostelny). However, “Metric is not seeking damages or delays for issues arising from the concrete or the embedded steel beams.” Pl.’s Post-Trial Br. at 18. Rather, Metric's arresting gear claim relates to the as­phalt installation and the rubber rails associated with the steel beams.

15

. Specification Section 02511.3.2.3 for Hand Spreading in Lieu of Machine Spreading states, "[i]n areas where the use of machine spreading is impractical, spread mixture by hand.” DX 1008 (Roadway and Airfield Contract Provisions) at 160.

16

. "Rubber rails" provide pendant support for the arresting gear cable. Tr. 563:2-5 (Holmes), 1369:13-16 (Burnell). In reconstructing the ar­resting gear, Metric was not responsible for in­stalling the cable and the arrestor systems that apply braking force.

The arresting gear concrete was perpendicular to the length of the runway, or, in other words, ran across the width of the runway. The I-­beams were perpendicular to the concrete, and thus ran parallel to the runway. The rubber rails sat atop the I-beams and therefore also parallel to the runway. Tr. 594:2-15 (Holmes).

17

. The contamination, which Metric acknowl­edges causing came from a loader that had a leak of hydraulic fluid. The spilled fluid was cleaned up and placed on a pile by an operator rather than placed in a bin for transport off-island. Metric agreed to clean up this material. Tr. 225:7 to 229:24 (Kostelny).

18

. At one point during the trial, the government appeared to be contending that crushed asphalt was a hazardous material—as an oily waste. Tr. 1269:9-20 (Miller) (cross-examination), 1278:21 to 1279:16 (counsel's explanation). That conten­tion was not pursued in post-trial briefing. See Def.'s Post-Trial Br. at 11-12, 21-22.

19

. The theory of constructive change developed by judicial evolution. In cases where the con­tract work was actually changed but the proce­dures of a changes clause in the contract were not followed, early appeals boards found that a change had been "constructively” ordered. See John Cibinic, Jr., Ralph C. Nash, Jr. & James F. Nagle, Administration of Government Contracts, 427 (4th ed.2006). As those analysts observed: Under common law contractual analysis, such fact patterns would more likely be placed un­der theories of implied contract or breach of contract, but the administrative procedures de­veloped for the resolution of disputes in federal contracts prior to the Contracts Disputes Act of 1978 prevented the boards of contract appeals from using these theories. Hence, boards de­veloped the alternate theory of constructive changes.

Id.

The doctrine of constructive change serves to (1) remediate contractor claims for extra work, and (2) permit contractors to perform disputed work without having to risk abandonment of their contracts to preserve their claims. The theory underlying the constructive change con­cept is that where the government "should have” issued a change order authorizing the extra work in the first place, the court or board [of contract appeals] may direct the govern­ment to do what "should have been done” by directing the government to issue a formal change order. The doctrine in its modern guise is the embodiment of the ancient princi­ple that "what should have been done will be done.”

Philip L. Bruner & Patrick J. O’Connor, Jr., Bruner and O’Connor on Construction Law § 4.25 (2002) (footnote omitted).

20

. The numerical designation of the categories of constructive changes recited in Miller Elevator is not reflected in the case law. For example, a differing site condition as stated in Federal Ac­quisition Regulation ("FAR") [48 C.F.R.] § 52.236-2, i.e., a "latent physical condition[] at the site which differ[s] materially from those indicated in this contract” is typically known as a Type I differing site condition, see H.B. Mac, Inc. v. United States, 153 F.3d 1338, 1343 (Fed.­Cir.1998), although it would fall within the gen­eral category of defective specifications (category III in Miller Elevator).

21

. The contracts awarded to Metric incorporate by reference the standard Changes clause set forth at FAR § 52.243-4. See PX 2 (Airfield Solic­itation, Offer, and Award); DX 1008 (Roadway and Airfield Contract Provisions). The Navy did not invoke that clause in connection with the installation of the pontoon.

22

. This is not to say that the Navy did not have good reasons for installing the pontoon. That installation eliminated any need to build tempo­rary sand ramps on the beach and elided the necessity to maintain a permit from the Corps of Engineers to make barge landings on the beach. The pontoon also would reduce the amount of activity on the beach that might affect the popu­lations of elephant seals and California sea lions that frequented the beach.

23

. A supplemental audit of the claim was per­formed by the Defense Contract Audit Agency ("DCAA”) on June 8, 2004. See PX 5 (Hainline Analysis) at 48-79. That audit focused on allow­able costs for equipment idled during delay peri­ods and accordingly was “qualified because [DCAA] did not receive a technical evaluation to determine whether or not the claimed costs were due to government caused delays arising from the installation of a pontoon barge at Daytona Beach (San Nic[]olas Island).” PX 5 (Hainline Analysis) at 49.

24

. Metric was restricted to landing its barge on the pontoon rather than the beach only from January 1, 1999 through May 3, 1999, a period of 123 days. Concededly, landing conditions were favorable during that time, and Metric suc­ceeded in landing its barge on the pontoon six times during that interval, even though landings on the pontoon were considerably more difficult than on the beach. Nonetheless, Metric has not established that a delay over 300 days could be attributed to a hindrance (the pontoon) that was in effect only 123 days.

25

. Notably, this delay occurred before the no-cost time extension attributed to "batch plant fire, weather, etc.” came into effect, see DX 1001 (Jones Report) at 143 (Modification P00001 of Roadway Contract), and that extension could thus have affected this period of delay only if Metric had released its pontoon claim, which it did not. See infra, at 822-25.

The Navy did partially mitigate its damages by transporting Metric’s replacement tank on its barge, see supra at 810-11, and by installing new deadmen on the beach on or about May 3, 1999, and allowing Metric to land on the beach there­after, albeit without using sand ramps and mats to ease transport of truck loads of aggregate, cement, etc. off the barge over the sand beach onto roadways. Id.

26

. The government contended at trial that Metric also waived its pontoon claims for the airfield project by entering into Modification No. P00017 for that project, but this contention was aban­doned at closing argument. See Cl. Tr. 103:17 to 104:2:

Q. ... Do you say that ... Modification 17 to the airfield or runway claim also constitutes a waiver?

A. ... [Tlhat's the one that relates to the arrest­ing gear.... [T]he three months they were given was so they would have time to do the arresting gear change work, so I don’t believe that would apply.

27

. Here, but for the circumstances that the ambi­guity is patent, the doctrine of contra proferentum would have pointed toward a resolution of the issue against the Navy. See HPI/GSA-3C, LLC, 364 F.3d at 1334.

28

. Metric also argues that the government is liable because "[t]he government impliedly war­rants the accuracy of matters set forth in the contract documents,” Pl.'s Post-Trial Br. at 31 (citing United States v. Spearin, 248 U.S. 132, 137, 54 Ct.Cl. 187, 39 S.Ct. 59, 63 L.Ed. 166 (1918)), and thus “the government warrants that satisfactory performance will result” if the con­tractor follows the specifications. Id. (citing Conner Bros. Constr. Co. v. United States, 65 Fed.Cl. 657, 685-86 (2005)). The government contends that the Spearin doctrine does not ap­ply, but rather that the contract included a per­formance specification, not a design specifica­tion. Def.’s Post-Trial Br. at 31.

As the Federal Circuit has explained:

Performance 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.” ... Design specifications on the other hand, describe in precise detail the materials to be employed and the manner in which the work is to be performed. The contractor has no discretion to deviate from the specifications, but is "required to follow them as a road map.”

P.R. Burke Corp. v. United States, 277 F.3d 1346, 1357 (Fed.Cir.2002) (quoting Blake Constr. Co. v. United States, 987 F.2d 743, 745 (Fed.Cir.1993)); accord Conner Bros., 65 Fed.Cl. at 685-86; Utili­ty Contractors, Inc. v. United States, 8 Cl.Ct. 42, 50-51 (1985) (”[D]esign specifications are explic­it, unquestionable specifications which tell the contractor exactly how the contract is to be performed.”), aff'd, 790 F.2d 90 (Fed.Cir.1986) (ta­ble). The government warrants the accuracy of design specifications, but no such warranty ac­companies performance specifications. See, e.g., Stuyvesant Dredging Co. v. United States, 834 F.2d 1576, 1582 (Fed.Cir.1987); Conner Bros., 65 Fed.Cl. at 685-86.

Here, the airfield contract provides that hand-­placement was allowed but not that it was neces­sary or the only means of accomplishing the work on the arresting gear. These contract terms are not design specifications because they allowed Metric discretion to choose the means of performance. Thus, Metric's invocation of the Spearin doctrine is inapposite.

29

. Metric took the position that it had completed its work on the 30-end except for the rubber rails by August 14, 2001. Pl.’s Post-Trial Br. at 20. However, Mr. Holmes conceded at trial that "some of the clean up and putting the Top Guard” on surfaces remained at that point. Tr. 583:4—5 (Holmes). Both Metric and the govern­ment would concur that the work apart from the rails was finished by August 27, 2007. See PX 337 (Letter from Serrano to Metric); DX 1001 (Jones Report) at 40.

30

. Metric also argues that the specifications did not require it to "retain an outside contractor to prepare a clean-up plan or to remove hazardous materials, [or] to submit a clean-up plan for government approval.” Pl.'s Post-Trial Br. at 30. However, none of Metric’s proofs of dam­ages related to these allegations. Metric also states in its Post-Trial Reply that "[t]he issue in dispute is whether the contamination at the sand pit was caused by Metric.” Pl.'s Post-Trial Re­ply at 8. Accordingly, the court wiE also not address subsidiary issues associated with a post-­construction clean-up plan.

31

. Different versions of the Corps Manual exist, but no particular Corps manual was identified at trial as an alternative. Prior cases have ad­dressed rates based on specific Corps manuals. See ACE Constructors, Inc. v. United States, 70 Fed.Cl. 253, 277 (2006), aff'd, 499 F.3d 1357 (Fed.Cir.2007) (referring to Corps of Engineers, Construction Equipment Ownership and Operat­ing Expense Schedule, Region VI, EP 1110-1-8, Volume 6 (June 1999)).

32

. Some of the equipment Metric used on the project had been on the island since the early days of Metric’s work on other contracts dating back to 1992. Tr. 661:17 to 662:16, 666:22 to 668:22 (Holmes).

33

. In his expert report, Mr. Cotton stated that “[a] worksheet prepared by Metric indicates that Metric’s calculation of the Blue Book rate for the barge supported a rate of only $9,407.34 per month.” DX 1002 (Cotton Report) at 17. How­ever, there is no evidentiary support in the trial record for the amount Mr. Cotton cites, and the court thus cannot accept it.

34

. In fact, the barge was leased to others for use during Metric’s work on San Nicolas Island. DX 1002 (Cotton Report) at 18 (“An invoice dated December 4, 1998 indicates that the barge was used for non-[San Nicolas Island] work during the [contract periods].”).

35

. The claimed cost consists of $152,003.40 of direct costs and $31,414.38 of profit and over­head costs. PX 330 (Letter from Metric to Navy regarding certified claim (Jan. 26, 2004)).

09-2 BCA P 34200 (A.S.B.C.A.), ASBCA No. 55307, 2009
ASBCA

APPEALS OF -- ADT CONSTRUCTION GROUP, INC.

Under Contract Nos. DACA09-03-C-0009
July 9, 2009

APPEARANCES FOR THE APPELLANT: John W. Ralls, Esq.

W. Samuel Niece, Esq.
Howrey LLP
San Francisco, CA

APPEARANCES FOR THE GOVERNMENT: Thomas H. Gourlay, Jr., Esq.
Engineer Chief Trial Attorney
Gilbert H. Chong, Esq.
Anne C. Gamson, Esq.
Engineer Trial Attorneys
U. S. Army Engineer District,
Los Angeles

OPINION BY ADMINISTRATIVE JUDGE SHACKLEFORD

This is an appeal from a contracting officer's final decision denying a claim for $826,725.16 and a 278-day time extension for pre-construction delays arising out of a contract for the design and construction of a munitions maintenance facility at Nellis Air Force Base, Nevada. Although the contract in question was ultimately terminated for default and appealed to this Board (ASBCA No. 55358), the termination appeal is suspended pending the outcome of the subject appeal.

A five-day trial was held in Las Vegas, Nevada. The record in this appeal includes the transcript of the trial (tr.), the Rule 4 file submitted by the government in seven volumes (volumes 1A, 1B, and 2 through 6) (R4, tabs 1-80), a supplemental appeal file consisting of deposition exhibits submitted by the appellant in three volumes (supp. R4, tabs 1-113), an eight volume supplemental appeal file submitted by appellant (supp. R4, tabs 2001 to 2015), appellant exhibits submitted at trial (ex. 2016 to 2041), and government exhibits submitted at trial (ex. 1001 to 1012).

While only entitlement is before us, it was understood that the number of days of delay is an element of entitlement (tr. 1/7). The parties have filed sequential briefs - appellant filed the first brief which included a volume with proposed findings of fact and a separate volume of legal argument. The government replied with a volume of proposed findings of fact which included responses to appellant's proposed facts and a separate volume with legal argument. Appellant made the third and final submission in three volumes - responses to government objections to ADT proposed findings, objections to government proposed findings, and reply legal argument.

FINDINGS OF FACT

1. ADT Construction Group, Inc. (ADT or appellant) is a Las Vegas-based general contractor and an 8(a) business enterprise (R4, tab 4 at 01041-43; tr. 1/45). ADT's project manager (PM) was Jess J. Franco (Franco), P.E., a retired U.S. Army colonel and a former district engineer with the U.S. Army Corps of Engineers (Corps) (tr. 1/66-68). Franco's responsibilities included identifying the project as an opportunity, preparing the proposal, putting together the project team, selecting and managing the efforts of the design team, and responsibility for the execution and closeout of the project (tr. 1/69-71).

2. ADT assembled a team of design firms in order to pursue the project, including URS Corporation as its primary subcontractor along with other engineering firms in various design disciplines (tr. 1/72-76). The URS project manager was Paul McMullin (McMullin), who is a retired Air Force officer with experience in military construction (tr. 3/179-80).

3. The project was awarded and administered by the Corps acting on behalf of the Air Combat Command (ACC) of the United States Air Force (AF) (tr. 5/82). The Los Angeles District of the Corps, which includes offices in Los Angeles, California, Phoenix, Arizona and Las Vegas, Nevada, administered the contract (gov't br. at 4, ¶ 16). The Corps' Sacramento District provided engineering support and was primarily responsible for the technical review of ADT's design submissions (tr. 1/73, 2/190, 2/228).

4. The Corps' project manager was Douglas Tillman (Tillman) who was located in Phoenix (tr. 2/182). Tillman was responsible for the project from concept development with the AF client through construction and project closeout (tr. 2/184).

5. Dennis Long (Long) was project manager for the ACC (tr. 5/81, 83). Roger Riddick (Riddick) was the administrative contracting officer for the Corps beginning in October 2003 and was located in Las Vegas (tr. 5/203-04). Michael Weber (Weber) was the contracting officer's representative (COR) from the start of the project until early 2004. He was located in Las Vegas. (Tr. 3/54-55)

6. Ron Musgrave (Musgrave) replaced Webber as COR during the project and was also located in Las Vegas (tr. 3/69). Tina Frazier (Frazier) was the contracting officer on the project and she was located in Los Angeles (tr. 5/168-69).

7. The End User of the project was the Air Force's 57^th Equipment Maintenance Squadron. Master Sergeant Richard Egan (Egan) was the contractor's point of contact with the End User. (Tr. 1/120-21)

8. The RFP was under development by the government as early as March 2002 (supp. R4, tabs 71-72). From at least that date, the government planned to use the design/build method of project delivery (id.; tr. 2/207).

9. Early in the development of the RFP, at least as early as March 2002, Corps project manager Tillman and ACC project manager Long learned that the Department of Defense Explosives Safety Board (DDESB) would have to approve the project (tr. 2/195-96; supp. R4, tab 71). As of March 2002, both Tillman and Long understood that the DDESB would have to approve the project before even the issuance of the solicitation for the design and construction of the facility (tr. 3/30-31; supp. R4, tab 71).

10. Early drafts of the RFP allowed the project to be performed according to a “fast track” approach (supp. R4, tabs 75, 76). Under this approach, construction can start on those portions of the work for which the design is complete while other portions are still under design (tr. 2/187, 3/36, 62-63, 5/109, 181).

11. In August 2002, Tillman and Long learned that the DDESB would base its approval of the project on the final design of the entire facility (tr. 2/201-02, 2/206, 5/11-15; supp. R4, tab 74). With that information, the government, including Long and Tillman, recognized that certain modifications had to be made to the draft RFP (tr. 2/200-02, 5/112-15; supp. R4, tabs 72, 74). Changes were made to the draft RFP concerning project duration and language was added about DDESB's involvement in the process (tr. 2/202-05; supp. R4, tab 75).

12. In August 2002, Long advised Tillman internally that in hindsight, the project should have been delivered as an Invitation for Bids procurement based upon 100% complete design rather than as a negotiated procurement for design and construction services (tr. 2/206-07, 5/120-21; supp R4, tab 73, 74). However, at that time Tillman agreed that the government had gone so far down the road of a negotiated procurement for design and construction that it was too late to switch (tr. 2/207).[r248][r249]

13. After learning that the DDESB would base its approval of the project on the final design of the entire facility, the government (including Tillman and Long) recognized that a fast track approach could not be utilized by the contractor (tr. 2/206, 5/117-19, 5/122; supp. R4, tabs 73, 74; ex. 2038).

14. Accordingly the government sought to delete references in the draft RFP to the permissibility of a fast track approach (tr. 2/206, 5/117-19, 5/122; supp. R4, tabs 73-74, ex. 2038).

15. In October 2002 the first COR, Weber, reviewed the draft RFP in advance of the solicitation in order to eliminate inconsistencies in the proposed contract documents (tr. 3/59-60; supp. R4, tab 76). Weber had learned about the nature of the DDESB's involvement from Long (tr. 3/6-7, 3/81) and in October 2002, Weber identified an inconsistency in the RFP between the fact that DDESB approval would be based on the final design of the entire facility on the one hand, and references to the permissibility of fast track, on the other (tr. 3/61-64; supp. R4, tab 76).

16. Weber suggested that the language regarding the permissibility of fast track be deleted from the draft RFP (tr. 3/63-64) and some of the language was taken out of the draft RFP, but other language was left in the RFP by mistake (tr. 2/209-214; supp. R4, tab 1).

17. On 21 April 2003, the U.S. Army Engineer District, Los Angeles, issued Solicitation No. DACA09-03-R-0004, requesting proposals for the negotiated procurement of an F-22 Munitions Maintenance Facility on Nellis AFB, Nevada (the project). The procurement was a 100% 8(a) competitive procurement. (R4, tab 1A at 00011)[r250][r251]

18. The work was a design-build project described generally as follows:

The work consists of utilizing the design and as-built drawings of the existing Munitions Maintenance Facility (located on Nellis AFB) and design and construct the new F-22 Facility; the design includes one additional maintenance bay, demolition of a building...and all utilities for the new F-22 Maintenance Facility.

(Id.)

19. The solicitation included the clause prescribed at FAR 52.211-10, COMMENCEMENT, PROSECUTION, AND COMPLETION OF WORK (APR 1984), as follows:

The Contractor shall be required to (a) commence work under this contract within ten (10) calendar days after the date the Contractor receives the notice to proceed, (b) prosecute the work diligently, and (c) complete the entire work ready for use not later than the number of calendar days set out in the Awarded Pricing Schedule (Schedule A is 510 calendar days and Schedule B is 450 calendar days[)].[r252]

The Contract[or] shall not commence the Construction Phase for 180 calendar days after the Government has accepted the final desing [sic]. This period is to allow for review and acceptance of the design facilaity [sic] by the Department of Defense Explosive Safety Board (DDESB)[r253]

(R4, tab 1A at 18 of 30) The solicitation also included FAR 52.249-10, DEFAULT (FIXED-PRICE CONSTRUCTION) (APR 1984) as well as FAR 52.243-4, CHANGES (AUG 1987) (id. at 2 of 30).

20. The solicitation included Special Contract Requirements said to be applicable to fixed price design-build construction contracts. SCR 7, Sequence of Design-Construction - AUG 1997 provided that:

After receipt of the Contract Notice to Proceed (NTP), the Contractor shall initiate design, comply with all design submission requirements as covered under Division 01 General Requirements, and obtain Government review of each submission. No...construction may be started until the Government reviews the Final Design submission and determines it satisfactory for purposes of beginning construction. The ACO or COR will notify the Contractor when the design is cleared for construction.

(R4, tab 1A at 00128)

21. The solicitation also included SCR 8, Sequence of Design-Construction (Fast Track) which provided that:

After receipt of the Contract Notice to Proceed (NTP), the Contractor shall initiate design, comply with all design submission requirements as covered under Division 01 General Requirements, and obtain Government review of each submission. The Contractor may begin construction on portions of the work for which the Government has reviewed the final design submission and has determined satisfactory for purposes of beginning construction. The ACO or COR will notify the Contractor when the design is cleared for construction.

(Id.)

22. Specification § 01012, entitled Design After Award, included paragraph 1.10, Design and Construction Schedule and Design Submittal Requirements, which provided in part as follows:

1.10.1 This project shall follow the “construction starts after design is complete” method for design-build. Construction shall not begin for 180 days after the Government has accepted the final design....

1.10.2 Every feature of the project must be fully designed prior to the start of the construction process for that feature....

1.10.2.1 The following design grouping table describes the areas of design to be submitted. The Foundations track may be submitted concurrently with the site, Utilities & Communications Duct System track upon approval of the Contracting Officer to maximize efficiency of the D-B contract.

(R4, tab 1A at 00518)

23. In addition SCR 9, Constructor's Role During Design - Jun 1998, provided that the key personnel of the contractor should be actively involved during the design process so as to effectively integrate the design and construction requirements. In addition to typical required construction activities, the contractor's activities were to include, inter alia, “integrating the design schedule into the Master Schedule to maximize the effectiveness of fast-tracking design and construction.”(Id. at 00129) Finally, SCR 12, Design Conferences - Aug 1997, included “construction activities (fast tracking)” as one element to be discussed as part of the pre-work conference (id. at 00130).

24. Each of the foregoing references to fast tracking was left in the solicitation by mistake (tr. 2/209-14, 5/123-24).

25. The RFP included 10% conceptual drawings which were based on the existing 1998 Conventional Munitions Maintenance Facility at Nellis AFB (1998 CMMF) and the successful offeror was to design the project based upon the existing facility as modified by the 10% drawings which were furnished, and other provisions of the contract (R4, tab 1A at 00011, 00256, tab 1B). The solicitation required a Design Charette as follows:[r254][r255]

After award of the contract, the Contractor shall visit the site and conduct extensive interviews, and problem solving discussions with the individual users, base personnel, Corps of Engineers personnel to acquire all necessary site information, review user options, and discuss user needs. The Contractor shall document all discussions. The design shall be finalized as direct results [sic] of these meetings.[r256]

(R4, tab 1A at 00130)

26. At the time ADT prepared its proposal, it was aware of § 01012, Design After Award, and that portion of paragraph 1.10.1 which states that the “project shall follow the ‘construction starts after design is complete’ method for design build,” and understood that this language was inconsistent with the fast track approach because it described an approach to the job where construction would not commence unless the design of the entire facility had been completed (tr. 1/87-88).

27. We find as a fact that the solicitation included several clauses consistent with fast track and several clauses inconsistent with that design-build approach.

28. Franco testified that it was the intention of ADT to use the fast track approach because it was an alternative in the solicitation and the plan was to complete certain features of the design and start construction on those features while other features continued to be designed (tr. 1/78-80).

29. On 21 May 2003, ADT submitted a pricing and technical proposal to the contracting officer in response to the solicitation. The Table of Contents included an entry “Fast-Track Design Approach” (R4, tab 4 at 01056) and in describing the design/build approach the proposal provided:

The ADT Team will Fast-Track both the design and construction, similar to performance contracted design build projects.

(R4, tab 4 at 01085)

30. In that same proposal, ADT stated:

At the completion of the design phase of the project, the ADT design team will provide the Government with a complete set of new F-22 MMF drawings and specifications which will be forwarded to the DOD Explosive Safety Review Board for their review and approval prior to the start of construction.

(Id. at 01087)

31. Tillman was chair of the Technical Evaluation Team in charge of reviewing the technical proposals (tr. 3/44-45). Tillman, Long and others conducted in-depth reviews of each technical proposal including that of ADT (tr. 3/44-46; supp. R4, tab 81, § 3.2.1, tab 82).

32. A final price proposal was submitted on 11 June 2003 with the cost and pricing remaining unchanged (R4, tab 6).

33. On 17 June 2003, the project (Pricing Schedule B, Line Items 1-3 and Option Items 4 and 5) was awarded to ADT as Contract No. DACA09-03-C-0009 in the amount of $2,691,475.00 (R4, tab 7 at 01121). ADT's proposal was incorporated into the contract. Notice to Proceed was issued by the government and received by appellant on 9 July 2003 (R4, tab 8) and since Pricing Schedule B allowed 450 calendar days for completion, the contract completion date of 1 October 2004 was established. Neitherthe award document nor the notice to proceed included any language acknowledging or challenging the ADT plan in its proposal to use the fast-track method of design/build. Nor is there any evidence that the issue was raised in any way by the government prior to award.

34. Section 01012 of the contract specifications, Design After Award, provided procedures for submission of designs for review and approval (R4, tab 1A at 00516 et seq). Pertinent portions of that section follow:

1.10.3.1 The contractor shall include on the schedule a 21 calendar day period for the government to conduct a compliance review for each submittal. The compliance review conference shall follow the compliance review period. The contractor shall include on the schedule a 7 calendar day period for the government to conduct a backcheck review for design backcheck submittals.

1.10.3.2 The contractor shall include on the schedule a 3 calendar day period...for a compliance review conference related to each submittal; no meeting is required for backcheck submittals....

1.10.4 Each submittal shall be completed to the state/level commensurate with the stage of completion, i.e., 60%/100%, etc. The 100% or final submittal for review shall be a required submittal. Each design submittal shall have all disciplinesdesigned to a similar design completion level, i.e., all disciplines at 60% complete.[r257][r258]

(R4, tab 1A at 00519)

35. Specification § 01012 also provided in ¶ 1.3 that deviations from the technical requirements were to be identified in the cover letter transmitting the respective submittal, that deviations should not be assumed approved unless specifically approved in writing by the contracting officer, and further, that:

Such deviations, when not specifically approved by the Contracting Officer or when subsequently found at any time during the contract, shall be corrected by the Contractor at no additional time or cost to the Government. It is the Contractor's responsibility to clearly note features/aspects in his design or construction that are deviations to the contract requirements. The Contractor shall not assume silence on these issues by the Government to be a sign of acceptance.

(R4, tab 1A at 00516)

36. The parties used a system call “DrChecks” to enter and track comments on ADT's design submissions. DrChecks is an automated system by which government reviewers had the ability to enter comments on design submissions and ADT's design teamhad the ability to respond (tr. 1/118-19). Section 01012 of the specifications described the procedure as follows:

1.11.2 Automated review management system: All review comments shall be processed via the Government program called DrChecks. Copies of comments will be made available to all parties before or during the review conference. Unresolved comments/issues at the conference shall be resolved by immediate follow-on action. Valid comments shall be incorporated. The Contractor shall annotate the DrChecks file prior to the next design submittal.

....

1.11.4 The design documents will not be considered 100% complete and ready for construction, until all comments for correction have been incorporated to the Government's satisfaction and further back check reviews are deemed no longer necessary. Review comments for correction will be based on compliance with the RFP document requirements.[r259][r260]

(R4, tab 1A at 00520)

37. Based upon the foregoing, we find that ADT had to resolve comments in DrChecks before moving on to the next phase of design. Only the government could close out DrChecks comments (tr. 2/18, 3/165, 4/46).

38. After receiving the award and notice to proceed, ADT began to design the project (tr. 1/94).

39. The contract contained mandatory language concerning visiting the site and meeting with a number of parties, including the End User (R4, tab 1A at 00516, ¶ 1.6). However, the cited paragraph limited the impact of those meetings as follows:

The Contractor has the responsibility to establish the design of the project in accordance with the contract. The meeting(s) is intended to allow the Contractor an opportunity to discuss, clarify, and obtain an understanding, in a face-to-face setting, on issues, opportunities, or mission restraints still in question. The spirit of this meeting is not intended to adjust the contract in any manner but rather to allow the Contractor/Customer relationship to begin and grow. This meeting can be associated with a partnering session or can be a stand-alone meeting but needs to occur early in the design phase of the contract.

(Id.) To some extent this provision conflicted with the Design Charette provision (see finding 25) which required the contractor to consult with the users, et al., and finalize the design as a result of those meetings.

40. Partnering was proposed by SCR 14 in order to develop a cohesive building team between the contractor and the government. By its terms, participation was voluntary. (R4, tab 1A at 00131)

41. On 17 July 2003, ADT conducted a pre-design visit of the 1998 CMMF facility and met multiple government representatives, including the AF Base Civil Engineer, the End User and the Corps of Engineers (tr. 1/97-98; R4, tab 38 at 02258-60).

42. In July 2003, the End User expressed a desire to have full access from the road to the facility (tr. 1/185-86). The contract called for an access driveway connecting the adjacent road (First Street) and the new parking area. The driveway merely had to be adequate to allow a garbage truck to access the new dumpster enclosure. (R4, tab 1A at 00259, ¶ 2.1.1) The End User wanted full access to the facility such that a vehicle with a trailer could come in on a driveway, have the ability to turn with as much freedom as possible, pull into a bay, unload the trailer, pull out of the bay and exit in the other direction (tr. 1/177). There was no specific contract requirement for the width of the access from the adjacent road to the facility.

43. The combination of steep topography, the need to compact a large amount of fill material, the End User's request for full access, the various fixed points around the site (including the road and parking lot), and the contract requirement that the site have positive drainage slopes between 2% and 5% away from the facility created a challenge for the civil design (tr. 1/167-99). [r261][r262]

44. The contract design criteria provided in part in ¶ 2.1.3, § 01011, as follows:

Design shall take into consideration topography and natural characteristics of the area, including climatic conditions, prevailing winds, etc. It shall be the Contractor's responsibility to protect existing features. Site work and utility designs shall provide a functional design solution requiring only routine maintenance through its design life. Emphasis shall be placed on positive drainage away from the structure. Site planning, development and the Contractor's operations shall at all times take into consideration that other facilities bordering the site must remain fully operational during the performance of the work. Innovative, creative and/or cost saving proposals, which fulfill these criteria, are encouraged and will be evaluated accordingly.

(R4, tab 1A at 00260)

45. As part of its design work ADT needed to establish where the building would sit, the finish floor elevation or vertical location of the building, which would determine “how much earth [has] to be haul[ed] in” and which also determines what the drainage slopes are going to be (tr. 1/170-71).¹

46. On 30 July 2003, Franco of ADT sent an email to Weber stating it was looking to expedite some actions in order to “Fast Track the project” (R4, tab 12 at 01227). ADT was seeking to expedite permission for its geotechnical engineering firmto get on the site (tr. 1/109-10).

47. On 30 July 2003, ADT submitted 25 Requests for Information (RFI) to the government (R4, tab 10). RFI 11 asked the question:

Please provide finish floor elevation required or do we use the Clark County standard?

(R4, tab 18 at 01618)

48. ADT phrased the question in reference to Clark County because Nellis AFB is in Clark County, Nevada and in ADT's experience, Clark County requirements are frequently used on projects there (tr. 1/168-69).

49. Weber responded on 16 September 2003:

Per Verbal guidance from Nellis AFB, Mr. Don Brown, on 31 JUL 2003, Compliance with Clark County Standards concerning finish floor elevation is acceptable.

(R4, tab 18 at 01617) The Clark County standard requires any structure to be at least 18 inches above the center line of the road adjacent to the structure (supp. R4, tab 7 at 8; tr. 1/170-71).

50. On 31 July 2003, ADT conducted the Design Charette conference. It was attended by the Corps (with representatives of the Las Vegas Resident Office, the Phoenix office and the Sacramento District attending), the AF including the End User (57^th Weapons Squadron) and ADT's design team (R4, tab 16 at 01279-82; tr. 1/98-99).

51. On 31 July 2003, ADT submitted its initial design schedule (R4, tab 16 at 01279-82; tr. 1/113). The schedule showed most of the design work starting on 1 August 2003. The 100% site/civil design was scheduled for completion on 18 September2003. The 60% structural, the 60% architectural, 60% mechanical, 60% electrical and 60% fire suppression were all scheduled for completion on 11 September 2003. The total design was scheduled for completion on 12 December 2003. (R4, tab 16 at 01282)[r263][r264]

52. ADT proposes a finding that the schedule reflects ADT's intent to pursue the fast track by depicting a plan of having certain design work 100% complete in advance of other design work (see ADT proposed finding 103). The Corps, on the other hand proposes a finding that the schedule was merely in keeping with the contract requirement to sequence some of the design tracks in advance of other design tracks (see government proposed finding 86).

53. We find that the contract requirement for sequencing design tracks (¶ 1.10.2.1 of § 01012 of the specifications) on which the government relies, was evidence that the contractor was allowed to fast track the design, and appellant appropriately relied on that language and reflected its intent to pursue fast track by following the tracking sequence in the specification (see tr. 1/113-14).

54. Weber became aware in July 2003 in connection with the Design Charette meeting that ADT intended to pursue a fast track approach to the project and admitted that the government should have then told ADT that it could not pursue a fast track approach (tr. 3/75-76).

55. The schedule did not show any activity beyond design work (R4, tab 16 at 01282) and the government provided no feedback to or criticisms of the schedule (tr. 1/114).

56. During various meetings with the End User, ADT learned of a number of End User preferences (tr. 1/99-104). Particularly on 17 July 2003, ADT met with the End User and developed a list of “Pre-Design Discussion Items” that had been coveredin that meeting. With respect to air conditioning, the entry stated:

There was great concern raised about the adequacy of the HVAC system in the Conventional MMF.

With respect to that concern, ADT added a comment as follows:

As part of the overall design effort, and as related to Spirit/Leed energy conservation approaches, the HVAC system will be looked at hard. Especially if humidity becomes an impacting factor, may look at a heat-pump system instead of the configuration currently in the specs. [emphasis in original]

(R4, tab 38 at 02258-60)

57. Franco testified that the discussion about the HVAC system was the most important item considered. The existing HVAC was improperly designed and improperly constructed. It utilized the evaporative cooling system which required a vent for air to flow through, but there was no vent in the existing facility, so the only way they would work was to open up the bay doors which essentially air conditioned the outside. And thus, while the End User wanted an air conditioning system “that wouldbetter meet their needs” (tr. 1/103-04), there is no credible evidence that the End User expressed a preference for a water source heat pump cooling system rather than an evaporative cooling system or some other system.

58. The water source heat pump had a number of advantages as compared to an evaporative cooling system, including greater efficiency, compatibility with force protection requirements, compatibility with base design standards, lower humidity and better cooling (tr. 1/126-29). On 12 August 2003, ADT sent RFI No. 18, which asked:

Based on the test equipment which will be used in the bays, what is the maximum allowable humidity levels for these areas and/or minimums?

(R4, tab 16 at 01403-04)

59. ADT sent this RFI to obtain additional information concerning the type of cooling system to design for the maintenance bays in light of the End User's stated concerns regarding humidity levels, which were especially high in the existing facility (70 to 80 percent) and which they wanted reduced to about 40% humidity (tr. 1/115-17). ADT never received an answer to RFI 18 although there was some discussion about the issue and it was discussed within the DrChecks system (tr. 1/118).[r265][r266]

60. On 29 August 2003, ADT submitted RFI No. 38 to Weber of the Corps, stating:

Due to the newly identified requirement for the bay relative humidity target to be 40%, we will design the bay HVAC system based upon a “water source heat pump”. The HVAC units can be wall mounted, hung from the roof trusses, or floor mounted. Wall mounted units set above the overhead crane apparatus will provide maximum floor space. Is this application acceptable?[r267][r268]

(R4, tab 16 at 01593, 01596)

61. The government did not respond to RFI No. 38 until the design review conference in October 2003 (tr. 1/129; see finding 79).

62. On 22 September 2003, ADT submitted a revised design schedule for the F-22 MMF. ADT stated that the changes were necessary “based upon requests for the incorporation of differing design requirements and [ADT's] initial internal quality control review.” This revised design schedule extended the completion date for most of the Phase 1 design elements by seven to ten days. This amended schedule changed the completion date for the 100% site/civil design from 18 September to 29 September 2003. The 60% structural and 60% fire suppression remained 11 September. The 60% architectural, 60% mechanical and 60% electrical were changed from a scheduled completion of 11 September to 25 September 2003. The scheduled completion of the total design was changed from 12 December to 24 December 2003. (Supp. R4, tab 59) This revised design schedule continued to reflect appellant's intent to pursue fast track by following the tracking sequence in the specifications.[r269]

63. The government provided no feedback or other input concerning ADT's 22 September design schedule revision (tr. 1/141).

64. On 1 October 2003, ADT submitted the 60% design documents as required by the contract. ADT represented in that submission that it included 100% site/civil, 100% lightning protection and 60% of the remainder of the design (R4, tab 30; tr. 1/143). ADT labeled its 1 October 2003 design submission as a 60% submission because the contract only provided for a 60% and a 100% submission. The design was in fact further along than 60%. (Tr. 2/12-13)[r270] [r271]

65. At the time ADT submitted its site/civil design on 1 October 2003, it was aware of the contract language specifying a maximum drainage slope of 5% (tr. 1/174). However, ADT submitted a site grading and paving plan wherein the positive drainage slope away from the facility in some areas exceeded the 5% maximum - around the edges of the property, the slope in one place was 25% and at one place in front of the facility, the slope was 10.37% (R4, tab 31 at 01958). These drainage slopes were apparent on the face of the submission (ex. 2017; tr. 1/179-81). In its narrative accompanying the design submission, ADT stated with respect to drainage, as follows:[r272][r273]

ADT will ensure that existing drainage patterns will be maintained. Specifically, ADT's design will provide positive drainage away from the facility in all directions. The maximum slope of the drainage will be 5% and the minimum slope will be2%. ADT is also aware that to the north side of the building, there is a very sudden change in elevation, which we will be accounted [sic] for. In some cases, drop inlets may be needed to ensure positive drainage away from the project site.[r274]

(Id. at 01831)

66. Franco defended the design of slopes outside the contract maximums explaining that drainage is determined by what you have to tie into and where you are located. In this case, the building had a fixed location which could not be moved, ADT had to tie into an existing road to the south in front of the facility and an existing paved parking area to the east of the building. With these fixed tie-ins, the drainage comes out to be whatever it has to be, and there is no choice. In addition,according to Franco, the End User wanted full access from the road to the facility, but it was a very steep road. He concluded by stating that due to the foregoing factors, it was physically impossible to do the 5% maximum without taking away some ofthe full access the End User wanted. (Tr. 1/174-78)[r275][r276]

67. In the period of time just before submission of the 1 October 2003 design, ADT learned from the End User that the DDESB was particularly interested in two things, lightning protection design and the exact position of the building so they could determine the munitions explosive radii. Thus ADT determined it should submit the lightning protection and the site plan designs at 100%. (Tr. 1/139-40)[r277][r278]

68. ADT's 1 October 2003 design submission had a traditional building mounted lightning protection system with air terminals mounted on the roof and down conductors coming down off the roof into the grid system underground (tr. 4/9-10). This system deviated from the contract requirement for a catenary or overhead wire lightning protection system because ADT's electrical engineer designer overlooked that portion of the specification (tr. 4/11).

69. The fact that the original lightning protection design was a rooftop rather than a catenary system was apparent on the face of the drawing submission (tr. 4/11-14; ex. 2033), but ADT affirmatively stated in the narrative portion of the submission that it would provide a catenary lightning protection system (LPS) (R4, tab 30 at 01839).

70. The 1 October 2003 design submission included a statement outlining the design of the mechanical features, in part as follows:

The ADT design team realizes that the CMMF contract documents are provided for guidance only. As such, ADT will carefully consider all of the mechanical features of the CMMF to determine whether or not they will be required for the F-22 MMF. Along the same line, the ADT design team will incorporate the new force protection requirements for the F-22 MMF. For example, ADT will provide water sourced heat pumps as HVAC systems, due to the humidity requirements of the missile test equipment, and will conform to requirements per UFC 4-010-01 DOD Minimum Antiterrorism Standards for Buildings.

(R4, tab 30 at 01835)

71. As the subsequent findings indicate, the contract may have required evaporative cooling and if it did, the above quote adequately gave notice to the government that a substitution was proposed.

72. The contract incorporated by reference Military Handbook 1190, Facility Planning and Design Guide (Handbook) (R4, tab 1A at 00229-30). Chapter 10(F) of the Handbook specified the “ELIGIBILITY OF FACILITIES FOR AIR CONDITIONING, DEHUMIDIFICATION, EVAPORATIVE COOLING, HEATING, OR MECHANICAL VENTILATION” (ex. 2040 at 10-9). The government relies on the entries for active warehouses and aircraft maintenance shops for requiring evaporative cooling. For active warehouses, the Handbook states that “[e]vaporative cooling may be provided where the effective temperature control can be maintained” and for aircraft maintenance shops the Handbook says that “[e]vaporative cooling is appropriate where effective.” (Id. at 10-11) However, the facility was neither clearly a warehouse nor an aircraft maintenance facility - it was a munitions maintenance facility and the government has not shown that the requirements of Handbook 1190 on which it relies do in fact apply to the facilityin question.

73. Long, initially and internally, approved the water source heat pump on 1 October 2003 (id.; tr. 5/144-45). Long testified that his internal approval was incorrect after he learned more about the subject (tr. 5/145). He testified that evaporative coolers are associated with high levels of humidity and air conditioning is associated with lower levels of humidity (tr. 5/144).

74. Long discussed the issue with Egan, who represented the End User and Egan advised Long that as part of his mission requirements, he needed a water source heat pump system as opposed to an evaporative cooling system (tr. 5/147).

75. In connection with considering whether to allow the water source heat pump as opposed to evaporative cooling, Long consulted with Horace Stepp (Stepp), a mechanical engineer with the USAF (tr. 5/150-53; supp. R4, tab 11). Stepp ultimatelyreferred Long to Military Handbook 1190 and the requirement for evaporative cooling in warehouse and aircraft maintenance facilities. On 15 October 2003, Weber advised Egan with a copy to Long, that the contract was to proceed with evaporative cooling (tr. 5/152; supp. R4, tab 11). From receipt of the e-mail from Weber on 15 October 2003, Long knew that evaporative cooling would be required in the facility (tr. 5/153).

76. A design review conference was held on 23 October 2003 for the 100% site/civil design track, the 100% lightning protection system design track and the 60% review of the remaining design tracks (R4, tab 39). The conference was attended by representatives of the Corps, including Tillman from Phoenix, Weber from the Sacramento district (Las Vegas Resident office), Long from ACC and Egan representing the End User, ADT representatives (including Franco) and a number of ADT design subcontractors (id. at 02261).

77. Franco discussed the responsibilities of ADT as general contractor and suggested that the project be started as soon as the 100% site/civil and lightning drawings were approved, then as each design package is approved the work could be started rather than starting construction after all the drawings are approved. Thus if the site/civil and lightning drawings are approved by the DDESB, Franco believed the earthwork could begin in November (id. at 02262). Franco clearly reiterated ADT's plan to pursue a fast track approach to the design-build project (tr. 1/154-55). No government representative (including Long, Tillman and Weber) stated during the meeting that ADT was not permitted to pursue a fast track approach (tr. 1/156-57).Only one government representative, Mike Orisco (Orisco), of the Base Civil Engineer office, voiced any concern about the fast track approach to the project articulated by ADT. Orisco stated that nothing in his area, which was communications, would begin until all the drawings are approved. (R4, tab 39 at 02261-62; tr. 5/69)

78. This comment by Orisco did not cause ADT concern about the fast track approach since the communications portion of the job would be constructed at the end of the job in any event. No one else from the government spoke up then or ever and said fast track was not permitted. (Tr. 1/159-61)

79. At the meeting ADT representatives discussed the use of a more efficient HVAC system and Long stated that evaporative cooling (swamp coolers) would continue to be used and that no variation would be allowed. Responding:

Mr. Franco stated that in accordance with the Contract requirements and the SPiRiT Program,² the ADT Design Team was completing a life-cycle cost and energy savings analysis of both the Evaporative Cooling and Water Source Heat PumpHVAC systems. He further stated that an excessive amount of water could be saved by using the water source heat pump system. Mr. Franco then stated that he would forward the final analysis, upon its completion, to the Government for a final decision on which HVAC system would be incorporated into the F22 MMF.

(R4, tab 39 at 02262)

80. As of the 23 October 2003 conference, ADT believed that the government had not yet made a decision about evaporative cooling versus water source heat pump and would base its decision concerning the type of cooling system to be used on theoutcome of the life cycle cost analysis which had not been completed (tr. 1/205-07).³

81. Tillman heard the comments of Franco at the 23 October 2003 Design Review Conference concerning starting the project construction as early as November, as soon as the 100% civil and lightning protection drawings were approved, and believed Franco's statements were unrealistic in view of what Tillman knew about DDESB approval of the project. However, he did not state his view to ADT at the time or at any time during the project. (Tr. 3/26-27; supp R4, tab 33) [r279][r280]

82. Tillman admitted that someone from the government should have told ADT at the October conference that ADT could not pursue a fast track approach (tr. 2/220-21).

83. Weber, the COR, also attended the 23 October 2003 Design Review Conference. He acknowledged that at the conference, Franco described pursuing a fast track approach. At the hearing, Weber admitted that the government should have told ADT during the conference that a fast track approach was not allowed. (Tr. 3/77-78)

84. At the 23 October 2003 Design Review Conference, it was reported that no one had as of that date sent ADT's design submissions to the DDESB (tr. 1/161-62). It was decided at the conference that Don Brown (Brown) of the base civil engineering office would forward the 100% site/civil and lightning drawings to the DDESB upon receipt of same from ADT. As agreed, the 100% drawings were to include all revisions discussed during the meeting. (R4, tab 39 at 02263) [r281] [r282]

85. On 4 November 2003, ADT transmitted the 100% site/civil and 100% lightning protection designs to Brown for transmission to the DDESB. In the letter, Franco reiterated ADT's intent to follow the fast track design approach stating that “achieving the DDESB's approval for the initiation of Construction is critical to our starting the site civil construction portion of the Project.” A copy of the letter was sent to Weber, the contracting officer's representative. On 5 November 2003 Brown advised that he would “take the complete package to [the]...Safety Office to be forwarded to the DDESB for approval.” (R4, tab 36 at 02208-12; tr. 1/162-63)[r283]

86. Weber admitted at the hearing that at the time he received ADT's 4 November 2003 letter, the government should have notified ADT that a fast track approach was not permissible (tr. 3/79-80).

87. The contract documents included in the RFP (the 10% drawings) showed glass in all the bay doors as well as the administrative doors (R4, tab 1B at 00956; tr. 1/243). On 17 July 2003, at the Pre-Design meeting, the explosive safety person for the base advised ADT that they had performed a glass safety analysis which they submitted to the DDESB and the requirement had changed so that glass should no longer be provided in any of the bay doors. Thus, ADT modified the drawings to show no glass in the bay doors, with glass only in the administrative doors. That is what was submitted in the 1 October 2003 60% drawings. (Tr. 1/246-47) The minutes of the 23 October 2003 Design Review Conference do not reflect any discussion about glass in the doors (R4, tab 39 at 02261-63).[r284][r285]

88. On 13 November 2003, the Chief of Weapons Safety, ACC, transmitted the design drawings for the lightning protection system to headquarters for transmittal to the DDESB, requesting final approval and priority processing. The letter stated that DDESB had previously provided preliminary approval of previously submitted data and final approval was contingent upon submission of lightning protection system drawings. It was indicated that ACC/SEW concurred with the design drawings which utilized air terminals to mitigate hazard potentials, not a catenary system. (Supp. R4, tab 23; tr. 5/134-35)

89. The contract included several provisions related to energy conservation. The findings proposed by the parties differ primarily over the degree to which such provisions were requirements or mere goals. Our findings with respect to those provisions follow.

90. Section 01010 of the Technical Specifications, General Project Description and General Design Requirements, provided in part as follows:

2. DESIGN

The project shall be designed and constructed in accordance with the criteria contained herein and using industry standard materials and efficient practices. The building design and materials selected shall be energy efficient, durable, and easily maintained. The Contractor shall be responsible for the professional quality, technical accuracy and coordination of all designs, drawings, specifications and other documents or publications upon which construction is based.

The objective of this contract is to design and construct the required facility as described in this document. The F-22 Munitions Maintenance Facility shall be based on the Conventional Munitions Maintenance Facility, Nellis AFB, FY-98, project as modified by the F-22 Munitions Maintenance Facility 10% drawings (see drawings in attachments) with revisions noted in Specification Section 01011. The project shall be compatible with the surrounding environment, and shall conform to the NellisInstallation Design Guide.[r286][r287]

(R4, tab 1A at 00224)

91. Paragraph 6 of § 01010 of the technical specifications, SUSTAINABLE DESIGN CONSIDERATIONS, provided in pertinent part as follows:

6.1 Sustainable Design Techniques

Sustainable Design techniques shall be considered as they relate to site design, site engineering, building design, and building engineering. Techniques which conserve energy, improve livability, and can be justified by life cycle cost analysis as cost effective are encouraged....The following paragraphs define the goals and general objectives for inclusion of Sustainable Design Considerations in this project....

6.2 Goals and Objectives of Sustainable Design.

6.2.1 The overall USACE goal of Sustainable Design is to be environmentally responsible in the delivery of facilities....

....

6.3 Sustainable Design and Construction of the Built Environment. Design and construction of sustainable buildings should be in accordance with the following concepts:

....

6.3.6 Water--Site design strategies that maximize natural filtration of rainwater and consideration [sic]. Water conservation is enhanced by low flow plumbing fixtures, water appropriate landscaping and HVAC and plumbing system design;[r288]

....

6.4 Documentation of Sustainable Design. The Contractor shall analyze the project using the Sustainable Project Rating Tool (SPiRiT v.1.4), dated April 2001, of the U. S. Army Corps of Engineers and report the finding to the Contracting Officer, who shall notify headquarters....The goal (though not a requirement) is to meet a bronze rating.

(Id. at 00251-52)

92. SPiRiT “is derived from The U. S. Green Building Council LEED 2.0 (Leadership in Energy and Environmental Design) Green Building Rating System.” A bronze rating is the lowest of the SPiRiT ratings. (R4, tab 1A at 00196)

93. While the water source heat pump system designed by ADT complied with the End User's request, met force protection requirements, and complied with the base design standards (tr. 1/205-07), it did not comply with the Military Handbook 1190requirement for an evaporative cooling system if the munitions maintenance facility is indeed an active warehouse or an aircraft maintenance shop.

94. A consultant to ADT, Celtic Energy, Inc., conducted a life cycle cost analysis of the water source heat pumps versus an evaporative cooling system (tr. 3/218-230; supp. R4, tab 56). The analysis was conducted by Christopher Halpin (Halpin), an engineer who was also president and founder of Celtic. Halpin was a certified energy procurement professional, was an accredited LEED professional, a registered professional engineer and had performed energy efficiency analyses for various government agencies (tr. 3/207-12).

95. Halpin has been working exclusively in the field of energy efficiency consulting for 22 years focusing on energy efficiency, sustainable design, SPiRiT and LEED (tr. 3/208-09).

96. On 25 November 2003, Celtic Energy provided ADT with a life cycle cost analysis of the water source heat pumps versus evaporative cooling system which concluded that the lifecycle costs for a water source heat pump were lower than for an evaporative cooler (R4, tab 38). On 20 January 2004, ADT sent the analysis to the government and it was received in the Corps Las Vegas Resident office on 23 January 2004 (R4, tab 38 at 02240). In that submission ADT requested that the Government makeits decision as soon as possible so that it could complete the 100% design documents (id.at 02242). Franco testified that ADT held onto the analysis from 25 November 2003 until 20 January 2004 because of two things that were occurring at the time. First, they were double checking the Celtic analysis to make sure the expected life times of the equipment were appropriate in the industry and in Southern Nevada. (Tr. 1/211-12) Second, the End User was trying to get an exception from the requirement for evaporative cooling to allow the water source heat pumps and ADT was “looking to dove-tail [its] analysis that said water source heat pump is the best selection by life-cycle analysis, to the efforts” the End User was exerting and did not want to undercut them (tr. 1/212-13).

97. Franco further testified that as of 20 January 2004, ADT still believed that this was a fast track job and the fact ADT was fast tracking the project design and construction made him more comfortable in waiting to dove-tail the life-cyclecost analysis with the End User's efforts to secure an exception since the initial effort is earthwork and foundations, and the HVAC can be dealt with later (tr. 1/214).

98. Franco testified that if he had known in November 2003 that the government was not going to allow ADT to pursue fast track, he would have immediately given the analysis to the government and insisted upon a short decision time. Had that decision been to not shift to water source heat pumps, he would have immediately designed the job for evaporative cooling. (Tr. 1/215)

99. The End User (Egan) did not give up on the water source heat pump and continued to pursue it for months through other channels (tr. 5/153-54).

100. On 28 January 2004, Long raised a question with several government personnel associated with the project including Tillman, concerning the required distance the lightning rods should be from the edge of the roof. Tillman responded that same day stating:

Interesting question since we aren't supposed to have light[n]ing rods (air terminals) on the ... roof. RFP, section 01011, page 250, paragraph 2.10.3.8, Grounding and Light[n]ing Protection, requires a catenary lightning protection system, i.e., not attached to the building. Cantenary [sic] system is suspended over the facility.[r289]

(R4, tab 40 at 02285)

101. On 3 February 2004, the government notified ADT that its original lightning protection design was rejected because it was out of compliance with the contract documents since it was a conventional rooftop system and not a catenary system (tr. 1/230-31). After receiving this notification, ADT designed a catenary lightning protection system (tr. 1/231).

102. On or about 2 February 2004, Albert Villano, a Nellis mechanical engineer, advised Brown that he concurred with ACC's recommendation to install evaporative coolers in the maintenance bays. Brown in turn forwarded a statement from Ramesh Patel challenging some of the costs in ADT's life cycle analysis and recommending the use of evaporative cooling as specified in the design. (R4, tab 43 at 02310-12) The Patel analysis was included in an internal email and was not forwarded to ADT (id.). Patel was not called to testify. We do not find the Patel analysis to be credible and find as fact that the water source heat pumps would have been a more cost effective alternative over the life of the system.

103. On 6 February 2004, the government impliedly rejected ADT's design of a water source heat pump when Weber directed ADT to “Design and provide HVAC system in accordance with the contract; use an evaporative cooling system” (R4, tab 41 at 02306). At no time did the government ever tell ADT why it believed the life cycle cost analysis did not support the selection of a water source heat pump (tr. 1/218-19).

104. Long testified that the water source heat pump was rejected due to the Military Handbook and that he had known since at least 15 October 2003 that the Handbook prohibited the use of water source heat pumps at the F-22 facility (tr. 5/152-53). In fact, Long so advised ADT at the 23 October 2003 60% Design Review meeting (see finding 79).

105. After the rejection of the water source heat pump, ADT designed an evaporative cooling system. In order to design an evaporative cooling system, ADT needed the government's input with respect to the resolution of conflicting contractual requirements (tr. 1/221-24, 3/182-84, 187-89).

106. Section 01011 of the contract specifications, Specific Engineering and Design Criteria, required the HVAC design to conform to anti-terrorism standards and force protection requirements (R4, tab 1A at 00258 (¶ 1.5.1.14), 00261 (¶ 2.1.8), 00304 (¶ 2.9.1)). To ensure the safety of personnel, the force protection requirements called for the evaporative cooling system (which unlike a water source heat pump, had to be outside the building) to be placed on a 10-foot stand since it had to be 10 feet above finished floor levels. In addition, force protection and space appearance standards required the installation of a screen wall around the entire HVAC system. The screen wall had to be a certain distance from the unit so as to permitair to be drawn, which created a conflict with the doors. (Tr. 1/221-23, 3/184)

107. With the wall in place, trucks could no longer drive safely through the access doors of the maintenance facility or make a turn (tr. 3/185-86).

108. In mid- to late February 2004, during the investigation of an issue relating to a proposed communication vault, the government first became aware that the ADT site/civil design did not comply with the contractually required drainage slope requirements (R4, tab 77 at 03356-57). On 27 February 2004, during discussions with ADT, the Corps informed it that the Clark County standard for the finished floor elevation would no longer be used for the design (R4, tab 46). Thus ADT had to change the finish floor elevation and revise the 100% site/civil design package to reflect this change (id.).

109. On 3 March 2004, the government and ADT's design team met to discuss various design issues, including revisions to the site/civil design (R4, tab 48 at 02404-07). In that meeting ADT's design team project manager, McMullin, stated that if evaporative coolers are required for the maintenance bays the force protection regulations would require the air intakes to be at least 10 feet above the ground elevation, which presented a design challenge. The government agreed to check with theirmechanical engineers to determine the appropriate force protection requirements. (Id. at 02405-06)

110. On 9 March 2004, ADT transmitted the 100% lightning protection design package which incorporated a catenary system to the contracting officer, stating:[r290][r291]

This Design Package is being provided in order that the Compliance Review can be completed and to allow for immediate submission to the Department of Defense Explosive Safety Board (DDESB). Per the DDESB's previous correspondence, it is our understanding that upon approval of this Design package and the previously submitted Site Plans the DDESB would provide authorization for construction (at least the Site earthwork portions) to begin.

As previously stated, it is ADT's intent to follow the ‘Fast-Track Design Approach’, as described in the Contract documents. Therefore, the Government's expediting of the processing of the 100% Lightning Protection Design Package is greatly appreciated.[r292][r293]

There are no deviations or betterments involved in this Design Package.

(Supp. R4, tab 25; tr.1/231-32)

111. No one from the government told ADT it was mistaken in its assumption that upon approval by the DDESB of the lightning protection design and the previously submitted site plan, the DDESB would authorize construction to begin. Nor did anyone from the government tell ADT it was wrong in assuming it could fast track the project. (Tr. 1/232-33)

112. On 18 March 2004, ADT submitted a revised 100% site/civil design, stating that it was based upon the change in floor elevation as requested by the government on 27 February 2004. ADT stated:[r294][r295]

This Design Package is being provided in order that the Compliance Review can be completed and to allow for immediate submission to the Department of Defense Explosive Safety Board (DDESB). Per the DDESB's previous correspondence, it is our understanding that upon approval of the Lightning Design Package and this revision to the Civil Design, the DDESB would provide authorization for construction (at least for the Site earthwork portions) to begin. The changes to the Civil design (elevations) does not affect the previously submitted Site Plan or the physical location of the F22 MMF (in relation to the other Buildings in Area 2).

As previously stated, it is ADT's intent to follow the ‘Fast-Track Design Approach’, as described in the Contract documents. Therefore, the Government's expediting of the processing of the 100% Civil Design Package and Site Plan is greatly appreciated.[r296][r297]

(R4, tab 44 at 02377-78)

113. Franco compared the site/civil design submitted on 1 October 2003 with the design submitted on 18 March 2004 and concluded, based upon his judgment as a civil engineer, that the earlier design was superior to the later one. To attempt toget to the 5% slope requirement, they had to create a drainage structure immediately adjacent to First Street on the southeast edge of the asphalt surface which took away around 50% of the direct access from the road to the facility. Even with these changes one dimension still exceeded the 5% maximum slope requirement. A design review conference was held on 27 April 2004, and ADT requested a waiver for that one area. Later that day in an email chain, ADT explained that in order to reduce the excessive slopes they would have to add another structure coming from the west which would have choked off all but a very limited access to the facility. On 28 April 2004 the government initially granted the waiver and allowed the slope to exceed 5%, however, a few hours later, Long admitted to having erred in approving the waiver, stating “per Paul Price, the user can't operate on a slope greater than 5%.” (Tr. 1/186-93; R4, tab 50 at 02613-15, 02638-40; supp. R4, tab 37 at 02628-32) [r298] [r299]

114. On 5 April 2004, the government informed ADT's design team that the government would eliminate the block walls and doors around the evaporative coolers but would require the coolers to be put on a stand. This was the design solution ultimately arrived at to balance the conflicting contractual requirements. (R4, tab 50 at 02515; tr. 3/191-92)

115. On 27 April 2004, ACC project manager Long sent the following e-mail to ADT:

When will the remainder of the drawings (Arch/mech/elec) be submitted? Reason for comment is that the AF Safety board/DDESB requested the complete set of final plans.

(R4, tab 50 at 02580)

116. Contrary to the finding suggested by the government (No. 142) we do not read this message as informing ADT that the government had made a decision to wait for 100% design submissions for all tracks before allowing the 100% civil and 100_{ightning track submittals through the DDESB process. In fact, we find as fact that nothing in this email explicitly informed ADT that it did not have a right to pursue fast track (tr. 1/202).[r300][r301]}

117. In the 27 April 2004 design review conference, the parties also discussed the 100% lighting protection system design wherein the government requested additional information and modifications to the drawings (tr. 4/20-23; R4, tab 50 at 02611-14). None of the government comments presented in the 27 April 2004 conference pointed out a deficiency or lack of compliance with the contract documents of the lightning protection system design (tr. 4/23-45; R4, tab 50 at 02611-27). In certain cases, ADT's electrical engineer made the request to change in order to accommodate the owner and facilitate completion and approval of the design. In other cases, ADT's electrical engineer persuaded the government that no change was required. (Tr. 4/40-41; R4, tab 50 at 02611-27). [r302][r303]

118. The government did not provide its compliance review comments to ADT's second site/civil design within 21 days of the 18 March 2004 submission (by 8 April 2004); it took 40 days (tr. 1/195).

119. On 6 May 2004, ADT submitted its 100% design for the entire facility, which included the site/civil design, the revised lightning protection design, the revised HVAC design (including evaporative cooling in the maintenance bays). More generally, the submission included the architectural/interior/structural design track and the mechanical/electrical design track. (R4, tab 51 at 02688; supp. R4, tab 2001B at ADT10253-54) In the cover letter transmitting the 6 May 2004 design submission, ADT's Franco stated:[r304][r305]

This Design Package is being provided in order that the Compliance Review can be completed and to allow for immediate submission to the Department of Defense Explosive Safety Board (DDESB). Per the DDESB's previous correspondence, it was our understanding that upon approval of the Lightning Design Package and the revision to the Civil Design, the DDESB would provide authorization for construction (at least for the Site earthwork portions) to begin. It is now our understanding that the DDESB desires to review the entire design. Therefore, we would appreciate it very much if the Full 100% Design Package can be forwarded from them as quickly as possible. It is still ADT's intent to follow the ‘Fast-Track Design Approach’, as described inthe Contract documents. Therefore, the Government's expediting of the processing of this 100% Design Package is greatly appreciated.[r306][r307]

(Supp. R4, tab 2001B at ADT10253-54)

120. The 100% design review conference for the remaining design tracks was set for 20 May 2004 (R4, tab 52 at 02755-56).[r308][r309]

121. On 24 May 2004, the government approved the 5.49% positive drainage slope in the 100% site civil design based upon ADT's request to waive the 5% requirement in that one location rather than reduce access to the site (R4, tab 52 at 02806;supp. R4, tab 39 at 2748-49).[r310][r311]

122. ADT's 1 October 2003 and 6 May 2004 design submissions conformed to the government's requirements in the RFP drawings and as stated in the 17 July 2003 Pre-Design meeting, to have no glass in the maintenance bay doors but to have glass in the administration doors. On 18 June 2004, the government advised ADT that for door glass to be permitted in the administration doors, a glass hazard analysis would have to be conducted. ADT's design manager suggested that the most expedient thing to do would be to remove the glass from the administration doors. On 23 June 2004, the government instructed ADT to modify its design to remove all door glass. On 27 June 2004, ADT submitted modified drawings to show no door glass. (Tr. 1/243-48; ADT ex. 2023; R4, tab 53 at 02847-49, 02869, 02882-83)

123. In connection with its design submissions of 6 May 2004 and 9 July 2004, ADT made a decision to proceed to the next stage of design even though there were still open DrChecks comments (tr. 2/16-19).

124. In its 9 July 2004 letter, ADT stated:

It is our intent to facilitate a rapid transition into our construction phase, but we need your help to ensure that we have address [sic] any and all major design items that may yet be on the table.[r312]

(ADT ex. 2027) ADT made this request because the government continued to raise new issues about the design which was preventing design approval (tr. 2/16-17).

125. On 9 July 2004, ADT (Franco) sent an e-mail to the government (Musgrave) again inquiring about the status of the review of ADT's design. ADT noted that “nothing on the table effects [sic] the site work or foundation” (R4, tab 55 at 3050, tr. 2/21-22). On that same day in a separate email, Franco asked for a meeting with COR Musgrave to address any open design issues (R4, tab 55 at 2979). Also on 9 July 2004 ADT submitted a revised 100% design submission of the entire facility incorporating additional government comments (ex. 2027; tr. 2/15-16).[r313]

126. In July 2004, the government raised additional questions regarding the lightning protection system design and again requested that ADT's submitted drawings be modified. None of the design comments raised by the government pointed out a deficiency or a way in which ADT's lightning protection system design failed to comply with the contract documents. As an example, one of the 15 July 2004 comments requested that the drawings depict scale dimensions. ADT's electrical engineer made the change as an accommodation to the owner. The scaling of the drawings to depict actual dimensions was not necessary because the design intent was called out by the dimensions set forth in the drawings which take precedence over any measurements an electrical construction contractor might make based on the drawings. (Tr. 4/47-53; R4, tab 55 at 03035-45, ex. 2031) In any event, by 19 July 2004, ADT had clarified the questions raised by the government about the lightning protection system calculations(R4, tab 6 at 0388-98).

127. On 16 July 2004, ADT inquired about the status on “starting,” stating that “nothing on the table effects [sic] site work or foundation” (R4, tab 55 at 03050).[r314]

128. Also on 16 July 2004, a new government reviewer, who “was just informed that there are live missiles in the bay,” raised a question about ADT's fire sprinkler design (supp. R4, tab 63 at 03102-03). The new reviewer had apparently not been informed about previous discussions and was not aware of the status of the design effort (tr. 2/23-24). On 26 July 2004, after several days of email discussion, the government agreed to accept ADT's fire sprinkler design as proposed (supp. R4, tab 63 at 03100-03).

129. On 27 July 2004, the Chief of the Weapons Safety Division, Air Force Safety Center, Kirtland AFB, NM submitted the “Final Explosive Site Plan Request” for the project to the DDESB for “review and approval” (supp. R4, tab 26).

130. By memorandum dated 5 August 2004 to the Headquarters Air Force Safety Center, the DDESB granted “final safety approval for” the project (supp. R4, tab 68 at 4458).

131. On 9 August 2004, the government sent a show cause letter to ADT, which stated:

Since you have failed to perform within the time required by the terms of the Contract, the Government is considering terminating said contract pursuant to the Clause titled “Default” of the contract clauses.

ADT was given ten days within which to show in writing whether the failure to perform arose out of causes beyond ADT's control and without its fault or negligence. (Supp. R4, tab 28)

132. On 19 August 2004, ADT responded to the show cause letter contending that it had not failed to pursue the project in a timely manner and stating in part:

Since the beginning of the Project design, ADT has communicated to the Government its desire to pursue an expedited design/build approach; in accordance with Special Contract Requirement clause SCR 8[,] Sequence of Design-Construction (Fast Track), which enables beginning portions of the work for which the Government has reviewed the final design submission of a specific feature and has determined it satisfactory for the purpose of beginning construction.[r315]

(R4, tab 57 at 3129)

133. Also on 19 August 2004, the Corps (Riddick) notified ADT (Franco) via email that “final approval has been received from the DDESB” and attached the DDESB's 5 August 2004 memorandum (supp. R4, tab 68 at 4455). ADT's design team manager learned independently of the DDESB approval on 19 August 2004 as well (R4, tab 58 at 03139). During the period 5 August to 19 August, ACC was experiencing email problems which delayed the notice (supp. R4, tab 68 at 4456). Riddick's email to Franco noted that the government had not yet received certain documents necessary for construction to begin, including a detailed construction schedule, a contractor's quality control plan, an accident prevention plan, an SF1413 for subcontractors, and current insurance information for prime and subcontractors (supp. R4, tab 68 at 4455; tr. 5/215-16).

134. The contract (§ 01012, ¶ 1.10.10), provides for a lead time of at least 90 days from the submission of the construction schedule until construction, including site work, could start. The contract contemplates that the 90 days could take place within the 180 day period after final design acceptance (R4, tab 1A at 00519).

135. After learning of the DDESB final safety approval of the project, ADT requested that the government grant approval of ADT's design. ADT sought this approval so that it could finalize negotiations with subcontractors and lock in subcontractor prices. (Tr. 2/35-36; R4, tab 57 at 3134)

136. By August 2004, Long was aware that ADT would be submitting a request for equitable adjustment or a claim to cover cost escalation (tr. 5/162-63).

137. In August and September 2004, both Long and Tillman understood that in order to modify the contract in the amount ADT was proposing, the programmed amount for the project (the amount approved by Congress) would have to be changed and they both knew that to change the programmed amount required Congressional action (tr. 2/235-38, 5/162-63). The programmed amount has not been changed (tr. 2/235-37).

138. On 7 September 2004, a meeting was held at Nellis AFB between several representatives of the Corps offices, representatives of ADT and its design subcontractor URS (tr. 1/52-54; R4, tab 64 at 03194-95, 03199). At that meeting, ADT's president, Ruben Vasquez (Vasquez) explained that he was concerned about the government delays to the design phase of the job, the progress of the job and cost escalation. A representative of the Corps told ADT to “suck it up or default” (tr. 1/54-55). Atthat meeting, ADT also advised the government that ADT anticipated cost escalation due to government delays in the range of $1 million (tr. 1/54-56).

139. Government representatives working on the project including Tillman and Weber were aware of construction cost escalation in Southern Nevada and were aware that the Corps had to make changes to some of its projects in that region, including reductions in scope due to construction cost escalation (tr. 2/230-31, 3/109-11).

140. In September 2004, after the DDESB had granted its safety approval, the government was considering terminating ADT for default (tr. 2/231). At that time, the government was also aware that ADT had raised concerns about cost escalation and that as a small business it might not have the financial wherewithal to absorb the cost escalation that had occurred (tr. 2/232).

141. On 7 September 2004, ADT submitted its CQC plan. It was rejected on 21 September 2004 as incomplete. Musgrave, the project engineer, stated that the rejected plan was “missing several attachments that are referenced in the body of the document and information referred to in those attachments are requirements of the specifications.” ADT was directed to resubmit a complete quality control plan. (R4, tab 59)

142. As of 14 September 2004, the Corps was considering terminating ADT for default (tr. 2/231), was looking at all its options and among those options were to allow ADT to continue to perform or to terminate their right to perform (tr. 2/234). A couple of weeks later, the decision was made to allow ADT to continue to perform even though they were eventually terminated on 2 February 2006⁴ (tr. 2/234; ASBCA No. 55358, compl. and answer ¶ 19).

143. On 22 September 2004, the government advised ADT that its design had been reviewed by the designated authorities and was accepted for construction. ADT was told to make the appropriate distribution of plans and specifications as set forth in the request for proposals. (R4, tab 60) Franco testified that this approval of ADT's design was a significant event:

Sir, this was hallelujah. This was finally after all this time we had approval of design. I can now start closing out subcontractor proposals, issuing letters of intent, and actually going forward with subcontractor bids, I mean, closing out subcontractor bids.

(Tr. 2/36-37)

144. On 23 September 2004, ADT submitted a revised CQC plan which was rejected on or about 24 September 2004 by Musgrave of the Corps as project engineer (R4, tab 61). On that same date in a separate letter, Musgrave, as COR, advised ADT thatthe government considered ADT responsible for project delays and that liquidated damages would be assessed starting on 2 October 2004 (R4, tab 62). ADT took issue with that position in a response on 29 September 2004 asserting that the government wasresponsible for the delays, including the government's disallowance of ADT's plan to fast track the project, and requested a 125-day time extension (R4, tab 63 at 03183).

145. On 1 October 2004, ADT requested, based upon the design acceptance, that the Corps issue a notice-to-proceed with the construction phase (R4, tab 65 at 03260; tr. 2/42). Riddick, the ACO, responded on 1 October 2004 stating that he was “not aware of any contract requirement that requires the Government to grant approval to the contractor to initiate the construction phase” since the notice to proceed for the contract had been issued and the design had been accepted (ex. 2028). ADT made this request even though the contract did not specifically call for a separate notice to proceed with construction because ADT continued to be concerned that the Corps was contemplating termination (tr. 2/40-42).

146. Based on the 1 October 2004 email from Riddick, ADT believed it had sufficient information and assurances to initiate construction and begin mobilizing (tr. 2/45-46). In order to proceed with construction, ADT needed an excavation permitfrom Nellis Air Force Base (tr. 2/47). ADT applied for that permit on 5 October 2004 by submitting the request on the appropriate form and hand carried the form to the appropriate government representative, the Base Civil Engineer, Brown (supp. R4, tab 32, tr. 2/47-48).

147. On or about 8 October 2004, ADT submitted another revised CQC plan. The Corps rejected it on or about 25 October 2004 due to a lack of information. In the cover letter, the Corps referred ADT to the portion of the contract that describedwhat should be in the CQC plan, referred it to Engineering Pamphlet EP 715-1-2, entitled “A Guide to Effective Quality Control (CQC)” and offered to meet with ADT's CQC manager about improving ADT's CQC plan. (R4, tab 69)

148. On 17 November 2004, the Base Civil Engineer issued the digging permit for the project site (supp. R4, tab 32). The issuance of a digging permit typically takes 14 days (tr. 5/236). The reason for the excessive amount of time for issuance of the digging permit is a matter of dispute. Franco testified he inquired as to the delay and was told by Brown, Base Civil Engineer and Gene Rogers, Deputy Base Civil Engineer, that it had been lost at one of the utility people's desk (tr. 5/361-62). Riddick testified that he learned that the digging permit was delayed due to a request to use borrowed material from Nellis AFB (tr. 5/230). Tillman testified that he learned that the digging permit was delayed due to an issue related to earth removal (tr. 3/28). We find Franco more credible on this issue as his testimony is more specific and is based on conversations he had with persons responsible for issuing the permit. Thus, we find as a fact that the reason for the delay in issuing the digging permit was government caused.

149. At the time the digging permit was issued, ADT still did not have an approved CQC plan (R4, tab 77 at 03360).

150. On 22 November 2004, the Corps gave partial approval for ADT's revised CQC plan so as to allow the start of earthwork under the terms of the contract. The Corps specifically noted that no other work would be allowed to start until a complete CQC plan had been submitted and approved. (R4, tab 77 at 03360) An approved CQC plan is required by Paragraph 3.2 of section 01451A of the contract specifications before construction can commence (R4, tab 5 at 01103).

151. On 12 July 2005, ADT submitted a certified claim for relief based on pre-construction delays. ADT sought a time extension of 278 days, corresponding relief from liquidated damages and an increase to the contract price in the amount of $826,725.16. (R4, tab 73) The claim is generally based upon what appellant refers to as four critical delay events and they are summarized below:

A. Finish Floor Elevation - 208 days⁵

B. 100% Design as Prerequisite as opposed to only 100% Site/Civil and 100% Lightning Protection - 45 days[r316][r317]

C. Late Notice of Design Approval - 44 days

D. Late Issued Excavation Permit - 43

The sum of the four critical delays is 340 days and appellant deducts what it terms overlapping delays, 44 days attributable to earthwork concurrent delays and 18 days attributable to earthwork float in ADT's baseline schedule resulting in a 278 day delay to the job. (R4, tab 73 at 03331-32)

152. Frazier, the contracting officer, understands that one of the claims made by ADT was that it was not allowed to pursue a fast track approach (tr. 5/180-81). Tillman was a member of the group of government employees who would have been expected to give input on the contracting officer's final decision, but Frazier does not recall receiving any input from Tillman about the ADT claim or about the contracting officer's final decision. She remembers getting input primarily from counsel and some from Riddick (tr. 5/178-80).

153. No one ever told Frazier that SCR 8 was included in the contract by mistake, and she cannot verify one way or the other whether SCR 8 was included in the contract by mistake (tr. 5/182-83). On 29 December 2005, Frazier issued her contracting officer's final decision on ADT's claim. The contracting officer found merit to ADT's claim related to late notice of design approval and ordered the ACO to determine the appropriate number of days, but directed that the extension be at no cost to the government. In all other respects the claim was denied. (R4, tab 77)

154. A timely appeal was made to the Board. At trial each party presented an expert witness to evaluate the claim for delay. Appellant called and the Board accepted Joseph O. Dean (Dean) as an expert witness in scheduling, schedule analysis and delay analysis (tr. 4/63, 67). Dean prepared an expert report which was admitted into evidence at the hearing (ex. 2037). The government called and the Board accepted George McLaughlin (McLaughlin) as an expert witness in scheduling, schedule analysis, purchasing and subcontracting (tr. 5/261). McLaughlin prepared an expert report which is also part of the record in this appeal (R4, tab 81).

155. Dean, for ADT, conducted a detailed review of the contract documents, project schedules, Rule 4 file, and other documents exchanged by the parties as part of discovery, and transcripts of deposition testimony (tr. 4/67-71, 84-85; ex. 2037 at 3-4). He analyzed delays through 22 September 2004, which was the date the government approved and accepted ADT's design (tr. 4/71-72). Although the claim and the proof include a request for time and money associated with issuance of a digging permit after 22 September 2004, the Dean analysis does not include that item.

156. Dean used the as-built collapsed schedule analysis methodology (tr. 4/77-83). Using this methodology Dean identified what actually happened and prepared a detailed as-built schedule. He then removed government delays and used the scheduling program to determine what would have happened but for the government delays. (Tr. 4/128-30)

157. Dean expressed his opinion that the government's approval of ADT's design on 22 September 2004 was delayed 273 days, from 24 December 2003 to 22 September 2004, of which the government was responsible for 245 days which are excusable andcompensable⁶. The remaining 28 days of delay he found to be excusable but not compensable because there were concurrent ADT delays. (Tr. 4/71-72, 85-86, ex. 2037 at 5, 26-27)

158. Dean was of the opinion that the government's failure to provide timely and complete review comments on ADT's design submittals was the primary cause of delay (tr. 4/93). He divided his analysis into three time periods: (1) from ADT's original design submittal on 1 October 2003 to ADT's revised design submittal on 6 May 2004; (2) from 6 May 2004 to ADT's further revised design submittal on 9 July 2004, and (3) from 9 July 2004 to the government's approval and acceptance of ADT's design on 22 September 2004. (Tr. 4/102-103)

159. Dean concluded from his review of the record that during the first time period (1 October 2003 to 6 May 2004), the government's design review periods were longer than the 21 days allowed by the contract, including its reviews of ADT's site/civil, HVAC and lightning protections designs (tr. 5/103-09). He drew a distinction between the lightning protection design which he acknowledged was originally submitted in error and the site/civil design, which was based on the government's response to RFI 11 (tr. 4/104-08, 5/62-64).

160. According to Dean, during the second time period (6 May 2004 to 9 July 2004) there were three causes of delay. First, after the 6 May 2004 submission, the government made late design comments that glass was to be removed from certain doorways as a safety precaution. Second, the government continued to provide new comments to the lightning protection system that had been submitted on 18 March 2004. Third, the government failed to close out DrChecks comments so that ADT could submit a 100% design compliance package. (Tr. 4/109-10) [r318] [r319]

161. During the third period identified by Dean (9 July 2004 through 22 September 2004), he found that there were several, overlapping causes of delay, including the government raising late questions about the fire protection sprinkler system, and the government's failure to approve ADT's design before sending the design to the DDESB. There were also ongoing problems with the government's late close out of DrChecks comments, some of which were not closed out until after September 17, 2004. During this period, ADT's expert also found that the government delayed approving ADT's design, waiting first for DDESB approval which he thought should have come after the Corp's approval and waiting second while it considered whether to terminate ADT for default. (Tr. 4/110-13)

162. Dean also concluded, based upon his analysis, that if ADT had been allowed to pursue a fast track approach, it would have had an approved site/civil design as early as 23 October 2003, eleven months prior to actual approval (tr. 4/116-25)⁷

163. McLaughlin, the government's expert, states in his report that he obtained the facts of the case based on a review of the contemporaneous project records, including the Rule 4 file and other project records (R4, tab 81 at II-1). While the report lists broad categories of documents relied upon, it was established that McLaughlin conducted no interviews with witnesses and only talked to government counsel about the underlying facts of the project. He did not read all of the depositionsor the entire Rule 4 file or other documents produced by the parties. Rather, he read only documents provided to him by government counsel. (Tr. 5/327-28)

164. More particularly, McLaughlin did not look at Tillman's files produced in January 2007 which included the history of the drafting and development of the RFP (tr. 5/328).

165. McLaughlin reports that in order to account for the extended duration of the design, he prepared a Time Impact Analysis for the duration of the project (R4, tab 81 at II-3)⁸ He described the Time Impact Analysis as follows:

A summary as-planned schedule and six adjusted schedules have been prepared to illustrate the events or time impacts that affected start of construction. The adjusted schedules were prepared by starting with the as-planned schedule and chronologically incorporating the time impacts, as they occurred during the project, into this schedule. Once a time impact was identified, the original schedule dates were revised to create an adjusted schedule incorporating the time impact, thereby reflecting the contractor's schedule and the projected completion date at the time each particular impact was resolved. This adjusted schedule was then revised to incorporate the next chronological time impact. In this way, each of the controlling time impacts was incorporated into the schedule as it occurred.

(R4, tab 81 at III-1) McLaughlin's as planned schedule showed the design complete on 12 December 2003 (see finding 51), DDESB review complete and construction starting 182 days later on 11 June 2004, and construction complete on 1 October 2004 (id., ex. 13).

166. He identified six events that impacted the critical path. The first event identified was ADT's submission of Phase I design documents said to have been received by the Corps of Engineers on 7 October, 15 days later than planned. McLaughlin concludes that the delay resulted from ADT's slow progress in the design and was its own fault. (R4, tab 81 at III-2) A closer review of that submission reveals it was received no later than 2 October 2003 (R4, tab 30 at 01818), five days earlier than the analysis.

167. The second event identified by McLaughlin which had a time impact to ADT's as-planned schedule was a logic change. The report provides:

In accordance with the ADT as-planned schedule as adjusted by Time Impact No. 1, Phase 2 design review completion and the subsequent start of DDESB review were planned to occur on December 27, 2003. ADT chose and the Corp[s] agreed to pursue SEQUENCE OF DESIGN-CONSTRUCTION (FAST TRACK) (see Exhibit No. 17). In this case, ADT chose to submit the Phase 1 design package for review with the potential of beginning construction on earthwork. An ADT letter of November 4, 2003 (see Exhibit No.18) and other supporting documents indicate that the Phase 1 design submission was actually submitted on November 4, 2003.

The impact of this logic change was that the critical path changed. The earthwork could begin earlier, thereby removing it from the critical path. The first construction task/activity became foundation and building work (see Exhibit No. 19). This schedule recovery improved the projected project completion date by 48 calendar days to August 29, 2004.

At the end of Time Impact No. 2, ADT was 33 days ahead of a properly adjusted schedule.... This schedule recovery resulted from both parties agreeing to commence DDESB review using the fast track process. The float created (33 calendar days) is available to both parties.

(R4, tab 81 at III-2 to 3; tr. 5/329-32. 5/344)

168. As is clear from our prior findings, the government never allowed and never agreed to allow fast track. Thus the factual basis for the analysis with respect to Time Impact No. 2 is not in accordance with our findings and does not properly form the predicate for the analysis or its conclusions.

169. The third Time Impact cited by McLaughlin was the Late Finish of Develop Phase 2 Design Submission. The analysis states that the late finish of the Phase 2 Design Submission should have been made on 2 December 2003, but did not occur until 6 May 2004, an impact of 156 days to the critical path, concluding that at this point ADT was 123 days behind a properly adjusted schedule. (R4, tab 81 at III-3 to 4) McLaughlin attributed the delay to ADT's slow progress in developing the design work (id. at III-4 to 5) yet, there is no analysis of events up to 6 May 2004 in McLaughlin's report and his conclusions are made without discussion of such events.

170. The fourth impact cited by McLaughlin was a logic change. He states:

Based on the May 6, 2004, Phase 2 Design submission and providing for the contractually required 180 day DDESB review period, post-earthwork construction should have started on November 29, 2004. This was due to the logic change in Time Impact No. 2, where the earthwork was to be constructed concurrently with Phase 2 design (see Exhibit No. 15). Instead, the Corp[s] decided to require full design approval by DDESB prior to the start of earthwork.[r320]

The resulting logic change placed earthwork construction back on the critical path and extended the construction duration 48 days. The impact of this logic change was to revise the projected completion date to March 21, 2005, 171 calendar days behind schedule....

The schedule delay logic change resulted from ADT's slow progress and defective deliverables relative to the Phase 1 design. Therefore, this delay is to ADT's account.

(R4, tab 81 at III-4)

171. As our prior findings indicate, there was no agreement between the parties that the earthwork was to be conducted concurrently with the Phase 2 design, because the government never agreed that appellant could fast track the project. Thusthe conclusions reached by McLaughlin are without merit.

172. McLaughlin found Time Impact 5 was the early finish DDESB review. He states that based on Time Impact 3, Late Finish of Develop Phase 2 Design Submission, the DDESB review should have been finished by 28 November 2004. But since the review was completed on 22 September 2004, the early completion of the review improved the projected completion of the design (as adjusted by Time Impacts 1 through 4) by 67 calendar days. (R4, tab 81 at III-5) The use of the 28 November 2004 date by McLaughlin, means that his analysis presumed the design was submitted to DDESB on or about 1 June 2004. In fact, ADT's design was not sent to DDESB until 27 July 2004 (see finding 129) and using McLaughlin's methodology, the review should have been completed by 23 January 2005.

173. McLaughlin deemed the Time Impact 6 to be Late Start to Construction. Because construction could have started on 23 September 2004 based on the administrative contracting officer's 22 September 2004 letter (R4, tab 60), he determined delays by both parties prevented ADT from starting until 22 November 2004, or 60 days in concurrent delay (R4, tab 81 at III-5).

174. McLaughlin's analysis concludes that ADT was responsible for 104 days of delay and that 60 days of delay were concurrent with government caused delay. The 164 days represent the time period from 11 June 2004, when according to McLaughlinconstruction should have started, to 22 November 2004 when it did start (see finding 165).

175. Based upon the foregoing, except as to Time Impact 6 (finding 173), we find McLaughlin's analysis to form an inadequate basis for determining the extent of delay to the project and causation for same. For the period ending 22 September 2004, the analysis performed by Dean was more credible and we find it to be the more persuasive. However, we adjust Dean's calculations in the quantum part of our decision to reflect our entitlement holdings.

176. Following termination (see finding 142), ADT's surety took over the project (tr. 1/56-58). At time of trial, ADT was reimbursing its surety under a payment plan for the costs incurred by the surety completing the project after the termination for default (tr. 2/14-15). Both before and after the termination, ADT incurred additional costs due to cost escalation. Before the termination, ADT incurred these costs directly in connection with payments to its subcontractors. After the termination, ADT incurred these costs indirectly, in connection with payments to its surety. (Tr. 1/56-58)

DECISION

As submitted on 12 July 2005, appellant claimed a time extension of 278 days and damages of $826,725.16 for preconstruction delays to this design-build contract. The claim cited four causes of the delay - finish floor elevation, 100% design as prerequisite for DDESB approval (refusing to allow fast track design-build), late notice of design approval and late issued excavation permit.[r321][r322]

Following trial the parties submitted briefs. In its legal argument, Appellant asks us to decide four legal questions, as follows:

First, did ADT have the right to pursue a Fast Track approach to the project?

Second, is ADT entitled to a time extension based on untimely government reviews of ADT's design submissions, especially related to the site/civil, lightning protection and HVAC/cooling system designs?

Third, what effect, if any, does the “DDESB/180 Days” clause have on ADT's claim?

Fourth, what is the appropriate number of days, if any, to which ADT is entitled (which necessarily entails a consideration of the competing expert analyses)?

(ADT Legal Argument at 3) We will consider each question in order.

Right to Pursue Fast Track

After drafting the solicitation the government learned that the DDESB required 100% design of the entire project before it would review the plans. Thus, the drafters sought to modify the solicitation to remove all references to fast track as an option. They failed miserably at that task and several references to fast track as an option remained in the solicitation when it was issued. ADT stated in its proposal that it would use the fast track method for design and construction. The proposal was included in the contract, as was the clause requiring DDESB approval of 100% of the design. The government did not question ADT's intention to use fast track as stated in its proposal. During the design period, ADT repeatedly reminded the government that it was fast tracking the project. Not once did the government comment in any way to those reminders. Significantly, the government never said fast track was not appropriate or was not allowed. Despite that, the evidence shows that the government had no intention of allowing fast track at any stage of the design process.[r323][r324]

Thus, while the government takes the position in its brief that fast track was in fact allowed and that, during the design process, it notified ADT that fast track would not be allowed due to ADT design problems, the evidence as we have foundit, does not support that position. To the extent the contract is ambiguous in that regard, appellant repeatedly gave notice when it said it wanted to do fast track and the government repeatedly ignored that notice. The evidence shows that the government never intended to allow fast track, and indeed its actions supported that intention, yet it failed to communicate those intentions to ADT. See Shemya Constructors, J.V., ASBCA No. 34577, 89-3 BCA ¶ 22,201 at 111,680.

To be fair, we observe that ADT's proposal which was incorporated into the contract was also ambiguous in that it stated that fast track would be used, and at the same time stated that a complete set of drawings would be submitted to the DDESB prior to the start of construction. However, the government's utter silence when appellant repeatedly raised the issue of fast track squarely put the burden on the government to respond during the design phase - and it did not.

Therefore, we find that appellant had a contract right to pursue fast track.

Untimely Review of Design Submissions

The contract allowed 21 days for the government to conduct a compliance review on each of ADT's design submissions. ADT submitted its original site/civil design on 1 October 2003. The design was based upon the Clark County, Nevada standard. That standard was followed when the government, responding to an RFI, rather than giving a finish floor elevation told ADT the Clark County standard was acceptable. Several slopes in the original design exceeded 5% although ADT represented in the narrative that none did (finding 65). The government first became aware that the representations were incorrect in mid- to late February, and, on 27 February 2004, rejected the design submission as being out of compliance. The basis for the rejection was that the slope exceeded 5%. It was impossible to design the project with no slopes exceeding 5% given the topography, the locations of the adjacent road and parking lot and the expressed needs of the End User for reasonable access. The government argues that the contract required positive slope between 2% and 5% and that areas exceeding 5% amounted to design deficiencies. The government recognizes that ADT took a proactive approach to designing the project rather than wait for the government to make all the decisions. The approach ADT should have taken the government says “was to submit designs according to the contract requirement, and propose for the Government's consideration alternative designs for all the non-conforming features that more fully satisfied end user desires” (gov't br. at 15).[r325][r326]

The government correctly points out that deviations from the contract requirements had to be the subject of written contract modifications and that the contract requirement to meet, discuss and to take into consideration the needs and opinions of the End User was modified in another clause to make clear that these meetings were not intended to adjust the contract. ADT failed to explain in its submittal that if it followed the Clark County standard, the design would have to exceed the 5% slope limit imposed by the contract and thus appellant is responsible for the initial delayed review of the original site/civil design, the period from 1 October 2003 to resubmission on 18 March 2004.[r327][r328]

Redesign of the Site/Civil Work

Appellant revised the site/civil design and resubmitted it to the government on 18 March 2004. On 28 April 2004, the government approved the second submission and on the same day reversed that decision and disapproved it. This design still had one slope exceeding 5% because it was impossible to meet that requirement given existing site conditions. ADT requested a waiver on 27 April 2004 at the design review conference. On 24 May 2004 the government approved the 100% site civil design withthe single slope exceeding 5% (5.49%) in one location. The government should have approved the 100% site civil redesign within 21 days of receipt (by 8 April 2004).[r329][r330]

HVAC/Cooling System Design and Redesign

The specifications for the HVAC/Cooling System Design included conflicting requirements such that neither a water source heat pump nor an evaporative cooling system complied with all contract requirements. However, the government relies in large part on Military Handbook 1190 for insisting upon evaporative cooling in categorizing the MMF as a warehouse or aircraft maintenance facility while the evidence does not support that conclusion.

Appellant commissioned a life cycle cost analysis after the 23 October 2003 design review meeting despite knowledge that the government wanted evaporative cooling. The analysis favoring water source heat pumps over evaporative cooling was furnished to ADT on 25 November 2003, but was not submitted to the government until 20 January 2004. It was rejected on 6 February 2004 well within the 21 days allowed and appellant was directed to provide an evaporative cooling system. On 3 March 2004, ADT asked the government to resolve the many conflicting requirements in the specifications and the government provided that information on 5 April 2004. Thereafter ADT submitted the revised design on 6 May 2004. The government was responsible for resolving the conflicting specifications; however, the site/civil design rather than the HVAC design was the critical path.

Lightning Protection Design - Original LPS Design

The original design, a rooftop system, was submitted on 1 October 2003 and was discussed at the 23 October meeting, but it was not rejected until 3 February 2004, 125 days after submission. While the design was not in compliance with the contract as it should have been a catenary system, appellant affirmatively represented that the design was a catenary lightning protection system. Therefore, the government is not responsible for delayed review of this item. The LPS was resubmitted on 9 March 2004 (finding 110). The compliance review should have occurred by 30 March 2004; however, as we discuss below, the LPS was not the critical path. In the 27 April 2004 design review conference, the government made comments about the LPS design andrequested additional information, none of which were a result of a deficiency or a lack of compliance with the contract documents. ADT incorporated the comments and submitted a revised 100% LPS design on 6 May 2004.[r331][r332]

Other Design Delays

Appellant points to other design delays in which we find merit. First, the government treated DDESB final safety approval as a prerequisite to Corps of Engineers approval of ADT's design, when in fact the contract required the Corps to approve the design prior to submission to DDESB. Second, the government delayed approval of the design even after DDESB approval from about 14 September 2004 to 22 September 2004 while it considered termination for default (finding 146). Third, approvals of100% submissions were delayed from 15 July 2004 to 26 July 2004 when the government raised questions late in the game, which had no merit but held up approvals (findings 126, 128). Fourth, the government made a late change to the design removing all door glass which reversed prior decisions and this delay was from 18 June 2004 to 27 June 2004 (finding 122). Fifth, ADT applied for a digging permit on 5 October 2004, it should have been issued by 19 October 2004, but was not issued until 17 November 2004. On the other hand, ADT was responsible for delay in approval of its CQC plan until 22 November 2004. Because the Dean analysis did not go beyond 22 September 2004, on this point we find McLaughlin credible and agree that a delay of 60 days to the project was concurrent.[r333][r334]

Impact of 180 Days/DDESB Clause on ADT's Claim

The government's primary defense to the claim for delays is the contract clause which states that the construction phase may not commence until 180 days after government acceptance of the final design to “allow for review and acceptance of the design [of the facility] by the Department of Defense Explosive Safety Board” (finding 19). It seeks to harmonize a requirement that 100% of the design was necessary for DDESB review with fast track sequencing of the work. The attempt at harmonizing the provisions of the contract is based in large part on possible ways of prosecuting the design work and its various parts. None of it is unsupported by any credible evidence and we find they may not be harmonized. The two approaches are distinctly opposite each other. Appellant wanted to get approval of design work covering the beginning of the project such that construction work could begin even while the design of later work, such as lightning protection, continued. Design of the lightning protection system could occur later since construction of that system is performed later. The DDESB review precludes such an approach. DDESB review was conditioned upon completion of 100% of the design of the entire project and its approval was required before any construction could begin.

The contract provides for a period of review by the DDESB “after the Government has accepted the final desing [sic]” (finding 19). Here the DDESB had already accepted the design before the government did so. The clause is not applicable, therefore, because there was no need for a period of review. An interpretation that the contractor was required to wait 180 days for DDESB review before beginning construction, when no further review was to take place, would not be reasonable. The government itself did not require such a delay but, rather, allowed start of the earthwork on 22 November 2004. Furthermore, the clause does not in any event exonerate the government from responsibility for delays to design completion. We conclude that areasonable interpretation under the circumstances of this appeal is that the government is not responsible for the 10 days taken for DDESB review. In light of this decision, it is unnecessary to consider appellant's argument that the government should be estopped from taking any position relying on what it learned and failed to disclose about DDESB review and approval.[r335]

Quantifying the Delay

Appellant planned to fast track the project and intended to start work on the excavation and foundations even before other designs were completed. In view of this plan we consider the site/civil design to be the critical path of the project and control the schedule until date of acceptance (24 May 2004) rather than the HVAC or lightning protection designs. As we have held, ADT is responsible for delay attributable to its failure to show noncompliance with the slope requirement of the contract. Accordingly, appellant is responsible for delay up to 8 April 2004 and the government is responsible for delay thereafter up to 24 May 2004. The government is also responsible for delay thereafter to 22 September 2004, except that we determine that no delay should be charged to the government due to the period of DDESB review from 27 July 2004 to 5 August 2004. Thereafter, there is concurrent delay until 22 November 2004.

We calculate that in the period of performance ending on 22 November 2004, the government is responsible for a total of 218 days of delay, 60 of which are concurrent. These days represent the periods 8 April 2004 to 27 July 2004 (110 days), 6August 2004 to 23 September 2004 (48 days) and 23 September to 22 November 2004 (60 days). As adjusted, the contract completion date is 7 May 2005.

The appeal is sustained in part as indicated above and we remand to the parties to negotiate quantum.

RICHARD SHACKLEFORD
Administrative Judge
Armed Services Board of Contract Appeals

I Concur
MARK N. STEMPLER
Administrative Judge
Acting Chairman
Armed Services Board of Contract Appeals

I Concur
EUNICE W. THOMAS
Administrative Judge
Vice Chairman
Armed Services Board of Contract Appeals

I certify that the foregoing is a true copy of the Opinion and Decision of the Armed Services Board of Contract Appeals in ASBCA No. 55307, Appeal of ADT Construction Group, Inc., rendered in conformance with the Board's Charter.

CATHERINE A. STANTON
Recorder, Armed Services
Board of Contract Appeals

FOOTNOTES

1 The horizontal location, according to Franco, is set by the Explosive Safety office (tr. 1/173).

2 SPiRiT is the Sustainable Project Rating Tool which was included in the contract and, among other things, required the contractor to optimize energy performance by reducing energy usage of building systems including HVAC. In connection withevaluating energy usage of competing systems, the contractor was to perform Life-Cycle costing in accordance with 10 CFR 436 (R4, tab 1A at 00193, 00203). Life Cycle costing was also called for in Military Handbook 1190 which was incorporated by reference (see ex. 2040, Ch. 8, ¶¶ B.2, B.4 and Ch. 10, ¶ A.1.b).

3 While the government proposes a finding in its brief (No. 113) that it agreed to wait for the analysis before making a decision on the type of cooling system to be required, on cross examination Long seems to say they were always going to require evaporative cooling, notwithstanding the outcome of the analysis (tr. 5/152-54).

4 The testimony erroneously says termination for default was in December 2005.

5 The claim narrative says 209 days (R4, tab 73 at 03329), but the sum of its parts in appellant's claim summary (id. at 03331) totals only 208.

6 In some cases the record refers to 278 days. Since the specified time period is 273 days, and subtracting 28 days results in 245 days, we use 273 days.

7 That plan would have been erroneous however since the initial site/civil design included several slopes exceeding 5%.[r336][r337]

8 ADT contends that the analysis is more properly characterized as an Impacted as Planned methodology which ADT contends is a disfavored methodology (see ADT Objections to Government's Proposed Findings of Fact at 34). We find it unnecessary to resolve that difference.