United States Court of Federal Claims.

No. 02-250C.

SUNSHINE CONSTRUCTION & ENGINEERING, INC., Plaintiff, v. The UNITED STATES, Defendant.

March 4, 2005.

John C. McManus, Atlanta, GA, for plain­tiff.

John E. Kosloske, Washington, DC, with whom was Assistant Attorney General Peter D. Keisler, for defendant. David C. Bras-­field, Jr., United States Army Corps of Engi­neers District, Mobile, AL, of counsel.

OPINION

CHRISTINE O.C. MILLER, Judge.

This case is before the court subsequent to trial after plaintiff contractor struggled to complete a troublesome construction project. The controlling issue is whether plaintiff could sustain its proof that the Government caused each of its claims for extra work or delay. Plaintiff learned, during the course of trial, that even though the inadequacy of the drawings prepared by the Government’s out­side architect/engineer complicated perform­ance, plaintiff ultimately was responsible for the actions or inactions thereafter that gave rise to almost all of its losses. Moreover, the ease illustrates the importance of a contrac­tor’s bona fides in dealing with the Govern­ment, which unfortunately were found lack­ing.

FACTS

1. The project

On August 11, 1998, the United States, through the Army Corps of Engineers, Mo­bile, Alabama District (the “Corps”), issued an invitation for bids via Solicitation No. DACA01-98-B-0056-0006 for a fixed-priced contract for the Education Center/Library Project (the “EC/L Project” or the “Pro­ject”). The EC/L Project consisted of the construction of a two-story Education Center and a one-story Library Wing at MacDill Air Force Base in Florida and the removal of asbestos from, followed by demolition of, Building 311, the existing library facility.1 The Air Mobility Command was the intended end-user, or customer, for the EC/L Project. Sunshine Construction & Engineering, Inc. (“plaintiff’), a Florida corporation specializ­ing in federal construction projects, is an 8(a) minority contractor2 that submitted a bid for the EC/L Project. Plaintiff is no longer in business.3

Bids were opened on September 15, 1998. Plaintiffs bid, including the total Base Bid plus Options, at $5,199,966.00, was the lowest bid reflected on the Report of Bid Opening & Award. In a September 16, 1998 letter, Ed­ward M. Slana, the Corps’s Contracting Offi­cer, asked plaintiff to confirm its bid. Mr. Slana also informed plaintiff that the Corps had the option of awarding the Base Bid and Option No. 3 only, thereby causing plaintiffs bid to be reduced to $4,678,100.00. Subse­quently, on September 26, 1998, the Corps awarded plaintiff the EC/L Project contract for the Base Bid (Item Nos. 1^1) and Option No. 3.4 Plaintiffs bid of $4,678,100.00 for these items again was the lowest bid for the EC/L Project.

Initially, plaintiff was required to complete the EC/L Project within 430 days of receiv­ing the Notice To Proceed (the “NTP”) dated December 17,1998. When plaintiff acknowl­edged receipt of the NTP on December 18, 1998, the contract completion date was estab­lished as February 21, 2000. Through eigh­teen unilateral and bilateral modifications,5 however, the contract duration was increased by 347 calendar days, extending the comple­tion date to February 2, 2001.6 Plaintiff contends that the contract completion date should be modified to August 31, 2001, with remission of liquidated damages, whereas de­fendant takes the position that plaintiff sub­stantially completed the EC/L Project on September 5, 2001, 215 days after the Febru­ary 2, 2001 extended completion date.

Following award, on November 11, 1998, plaintiff sent a preliminary matrix, PX 50, consisting of forty-six issues to Leonard B. Paris, the Resident Engineer, MaeDill Air Force Base Project Office, Army Corps of Engineers. Mr. Paris oversaw the day-to­day administration of the EC/L Project. Plaintiff prepared the matrix because of its concerns, according to plaintiffs president, Pin Fei (“Mike”) Yang, in going forward on the EC/L Project when “serious problems” with items such as the footers, foundation, and structural steel still existed. Transcript of Proceedings, Sunshine Constr. & Eng’g, Inc. v. United States, No. 02-250C, at 32 (Fed.Cl. Dec. 6-10, 13-15, 2004) (“Tr.”). Many of these issues addressed deficiencies in the contract drawings, representing princi­pally conflicts in the layout and foundation work that plaintiff would be required to be­gin as soon as it received the NTP. Plaintiff requested the NTP issue only after it re­ceived satisfactory determinations on the ma­trix issues.

Plaintiff received the Corps’s initial re­sponse to the matrix within one day; how­ever, Mr. Yang testified that he was not satisfied with the individual answers to the matrix’s queries because some responses were “not what we asked and some thing[s] they did not answer specifically.” Tr. at 35. Notwithstanding plaintiffs request and the fact that outstanding issues remained on the matrix, the Corps issued the NTP on De­cember 17, 1998, and plaintiff acknowledged receipt one day later on December 18, 1998.

In a separate communication on December 17, 1998, Roy McCracken, plaintiffs Project Manager at that time,7 sent a letter to Mr. Paris restating plaintiffs concerns about the initiation of the EC/L Project due to issues outstanding from the November 11,1998 ma­trix, revisions to the original design draw­ings, and several other Project revisions. Even though plaintiff viewed resolution of discrepancies in the drawings and specifica­tions as essential, receipt of the NTP con­tractually obligated plaintiff to begin work without correction to its satisfaction of the deficiencies that it noted in the matrix.

Plaintiff’s claim is premised on the modifi­cations that issued throughout the EC/L Pro­ject allegedly due to the deficiencies in the plans and specifications and that led to the changes that were implemented in order to complete the EC/L Project. It is plaintiffs stance that the modifications were, for the most part, a result of original defective con­tract documents.8

Changes to the EC/L Project plans began in February 1999 when the Corps issued drawings for Change Order9 No. 1.10 This Change Order revised 77 of the 140 drawings for the EC/L Project.11 The fiasco with the drawings was due to the Corps’s misguided effort to satisfy its “customer,” the Air Mo­bility Command, which decreed that the EC/L Project get underway in time to utilize funds that had been made available. The Corps’s obeisance to its “customer’s” time parameters ultimately cost taxpayers over $1 million to remedy the deficient drawings, so economy was neither the customer’s objec­tive nor responsibility. Moreover, the Corps never sought recourse from the architect/en­gineer, a familiar theme in government con­tract cases.

Edward W. (“Bill”) Batchelor, the Con­tracting Officer’s Technical Representative (the “COTR”), included critical observations concerning the deficient project drawings in his Quality Assurance Reports (“QAR”). For example, he noted in his QAR for Janu­ary 11, 1999 through January 17, 1999, that the “[djrawings issued to the Contractor are very poor & contain several deficiencies. Mobile is issuing new Drawings & Spoecifiea­tions [sic].” In the January 18, 1999 though January 24, 1999 QAR, Mr. Batchelor re­marked that “[r]evised [drawings from the AIA have not arrived. No [w]ork can be performed until MOD is issued.” Later, in his QAR of February 1, 1999 through Febru­ary 7,1999, Mr. Batchelor wrote that

AE Change 1 is impacting the contract. The change needs to be issued, however there are several errors in the change and the change does not address all the prob­lems ____It appears that the contractor is reluctant to move until he receives the Change Order-With the magnatude [sic] of the errors in this contract this is under­standable.

Mr. Batchelor was particularly blunt in his February 8, 1999 through February 14, 1999 QAR, where he wrote that the “drawings & Specifications are totally inadequate, innu­merable errors. Until [changes] are issued the Contractor can not [sic] sign subcon­tracts, the subs can not [sic] put transmittals together until the[y] can determine contract requirements.” Later, in the March 8, 1999 through March 14, 1999 QAR, Mr. Batchelor wrote that the “[s]tatus of Plans & Specifica­tions is affecting the overall contract.” In a statement of the obvious, Mr. Batchelor not­ed in his March 15, 1999 through March 21, 1999 QAR that “Plans & Specification errors & omissions will impact contract in time & money.” In reference to subsequent at­tempts to correct the drawing deficiencies, and in a display of the obstacles presented to plaintiff because of the drawings, Mr. Batchelor, in his March 22, 1999 through March 28, 1999 QAR, wrote that the “change for the reissue of the spec’s [sic] & dwgs. not issued. There are several errors in the new drawings & spec’s [sic].” Again emphasizing the poor quality of the Project’s drawings, in his May 10, 1999 through May 16, 1999 QAR, Mr. Batchelor scathingly, and in convincingly summarizing fashion, wrote that the “draw­ings & specifications for this contract are deplorable. It appears that no one drawing is free of errors or conflicts. Details do no relate and dimensions vary from page to page. This has & is slowing progress, shop drawings & submittals. There will be a con­siderable increase in cost” because of these problems with the contract documents. Fi­nally, as if to solidify the overall impression gained by the court’s reading of all his QARs, Mr. Batchelor testified that the drawings “were the worst I had seen in my Corps career.” Tr. at 1329.

On April 1, 1999, Mr. Paris sent a letter informing plaintiff that it was behind sched­ule, and that a January 29, 1999 preliminary Project Schedule only covered projected work on the EC/L Project through February 15, 1999. Mr. Paris’s letter noted that the Corps had not yet received the initial Project Schedule as required by the contract and that site and EC/L Project record reviews revealed “less than minimal physical prog­ress and untimely transmittal of required submittals.”

Ralph L. Poole, Jr., plaintiffs then-Project Manager, responded to Mr. Paris’s letter with an April 8, 1999 letter outlining plain­tiffs state of progress and its intent to sub­mit an overall EC/L Project Schedule to the Corps no later than April 14, 1999. Mr. Poole’s letter illustrated the early difficulties experienced by plaintiff on the EC/L Project, as he explained that minimal progress had been made to date due to conflicts between the original drawings and Change Order No. I, but that the reinforced steel was on site and that placement in the steel footers had begun. He further advised that placement of the concrete would begin no later than April 13, 1999, after plaintiffs Quality Control Manager (the “QCM”)12 and the Corps’s COTR, Mr. Batchelor, had inspected the steel. Electrical and mechanical subcontrac­tors were scheduled to begin placement of the duct banks under the footers by April 9, 1999. Although he admitted the submittal process had been slow, Mr. Poole faulted the drawing and change conflicts for the delay.

Prior to his response to Mr. Paris’s letter, Mr. Poole wrote Mr. Paris separately on April 2,1999 outlining items that had still not been properly resolved from the November II, 1998 matrix. Specifically, Mr. Poole not­ed that the Corps had not sufficiently an­swered Item Nos. 30, 35, and 37-46 of the matrix.13 Mr. Poole subsequently submitted Request for Information (“RFI”) Nos. 8 and 9 on April 13, 1999, asking for confirmation on a steel issue and clarification on the loca­tion and elevation for structural members at the eave/internal gutter, respectively. Mr. Paris promptly responded to both RFIs.

On April 14, 1999, plaintiff submitted to the Corps its EC/L Project Schedule, which embodied its plan of construction. On April 21, 1999, the Corps returned the EC/L Pro­ject Schedule unapproved, with seventeen comments. Plaintiff resubmitted the sched­ule on May 3, 1999, including changes incor­porated from the Corps’s prior remarks to the April 21, 1999 submittal. The Corps returned plaintiffs revised schedule on May 25.1999, with nine additional comments. Fi­nally, plaintiff resubmitted the schedule on June 15, 1999, which the Corps approved on July 15, 1999. Thereafter, plaintiff updated the EC/L Project Schedule on a monthly basis and used it as a basis for each pay application.

Mr. Yang’s testimony concerning these submissions was central to plaintiffs demon­stration of the confusion that characterized the EC/L Project: As of April 14, 1999, May 3.1999, and June 15,1999, Mr. Yang testified that he was not certain whether all questions that were noted on plaintiffs preliminary matrix were sufficiently answered. Tr. at 231-32. Mr. Yang, however, admitted on cross-examination that the Corps had sup­plied answers for Item Nos. 26-34 on the matrix, which in prior testimony he had as­serted were not answered, and that the blank column spaces used by plaintiff on Mr. Yang’s direct examination were duplicates that did not reflect the Corps’s answers that actually had been retained on the same pages. Compare Tr. at 42-51 with Tr. at 234-35.

The testimony and documentary evidence made obvious to the court that this initial difficulty between plaintiff and the Corps with regard to adequate project drawings prior to the actual start date of the EC/L Project was not an aberration. Instead, the interaction between plaintiff and the Corps was mired in a history of poor communica­tions, strained relationships between individ­uals serving as points of contact, a chaotic work environment, and an overall lack of organization between the parties and then-­representatives.

Defendant’s delay expert, Charles E. Bol­yard, Jr.,14 provided a reliable, comprehen­sive analysis regarding the sequence of con­tract performance. His cogent and credible testimony was helpful, because no docu­ments, including plaintiffs updates, or wit­nesses presented as coherent a picture of the EC/L Project’s work sequence. The extant documentary record is consistent with Mr. Bolyard’s as-built analysis. Essential to Mr. Bolyard’s testimony was his explication of the Critical Path Method (“CPM”). The “critical path” provides a scheduling mecha­nism for construction projects and “is a way of grouping interrelated activities!.]” Wilner v. United States, 24 F.3d 1397, 1399 n. 5 (Fed.Cir.1994). Generally, any amount of delay to an activity on the critical path re­sults in the same delay to the project’s com­pletion, id., because those activities define the project’s path and chain of activities.

Plaintiffs Project Schedule, as approved on July 15, 1999, dictated the Milestones throughout the EC/L Project. Beginning on December 18, 1998, plaintiff spent the first four months of the EC/L Project on Mobili­zation and Site Preparation Activities, includ­ing the critical activities of coordination meetings, support facilities layout submittal, support utilities, trailer installation, clearing and grubbing, building layout, and demolition of existing structures.

Plaintiff reached Milestone 1, the begin­ning of foundation construction, on March 23, 1999, thirty-five days ahead of its as-planned schedule, and at this time began foundation excavation, form work, steel reinforcement and concrete placement, and anchor bolt placement. Because of various foundation production problems, however, due to form-­work failures, remedial work to anchor bolts, reinforcing steel layout errors, concrete placement, and quality issues and poor work­manship, plaintiff experienced delays and completed the foundations on August 29, 1999. The original foundations completion date was June 24, 1999. Mr. Batchelor, the COTR, discussed many of these issues in his QARs. In his QAR covering April 12, 1999 through April 18, 1999, Mr. Batchelor de­scribed the foundation work as “[a] complete disaster; resteel not aligned or plumb (Place­ment crew knocking resteel around), [r]esteel lacks clearances from soil, no pattern to con­solidation ____There appeared to be no one in charge although the SUPT, OWNER, CQC and PE was [sic] on-site.” Subsequent QARs reflect equally negative comments con­cerning progress and workmanship:

The April 19, 1999 through April 25, 1999 QAR noted that “[e]oncrete placed last week is generaly [sic] unaceeptable[.]”

The May 10, 1999 through May 16, 1999 QAR reported that “[pjrogress is extreme­ly slow.”

The May 17, 1999 through May 23, 1999 QAR remarked that “[t]he plans are diffi­cult due to the design conflicts however, this contractor isn’t helping his cause as transmittals are incomplete & frequently fail to meet the contract requirements which result in lost time & eonfusion[.]” The May 24, 1999 through May 30, 1999 QAR recorded Mr. Batchelor’s impression that “columns are in the wrong location & will require corrective action.”

Finally, the May 31, 1999 through June 6, 1999 QAR reported that “[w]ork is sloppy and there appears to be little supervision or oversight from the CQC. Mike [Yang] continuinly [sic] asks this QA for corrective action after his company messes something up or work does not comply [with] the contract. It appears that this contractor’s on-site personnel lack the experience and/or are failing to read the contract.”

Before reaching Milestone 2, the beginning of structural steel erection, plaintiff was to submit a structural steel erection plan. Plaintiff did not submit this plan until August 20, 1999, even though structural steel began arriving on site beginning on June 17, 1999, and the foundations were in acceptable condi­tion to commence steel erection. Despite the Corps’s approval of the structural steel erec­tion plan on August 25, 1999, plaintiff did not begin steel erection until September 2, 1999. This overall delay amounted to an impact of thirty-one days, and, combined with the pre­vious thirty-eight days during the foundation work, created a sixty-nine day delay prior to plaintiffs achieving Milestone 2. Given that Milestone 1 started thirty-five days ahead of schedule, plaintiff began Milestone 2 thirty-­four days behind its as-planned schedule.

Milestone 2 was accomplished between September 2, 1999, and February 10, 2000.15 Placement of first floor exterior concrete ma­sonry unit (the “CMU”), Milestone 3, had been scheduled to begin on August 30, 1999, after the structural steel erection, and was to continue in tandem with completion of the roof steel and decking. Work on the erection of the roof steel and deck started on October 27, 1999, but plaintiff did not begin the exte­rior CMU work until November 30, 1999. Plaintiff substantially completed the struc­tural steel columns and beams on October 12, 1999, and it placed grout beneath the column base plates from October 1, 1999 to October 13, 1999. Plaintiff then installed the second floor deck from October 13, 1999 to October 25, 1999. After grouting the columns, plain­tiff placed the concrete in-fill around the columns from October 27, 1999 to November 23,1999.

Plaintiff began Milestone 4, interior gyp­sum wallboard activities, on August 27, 2000. This represented a 299-day disparity be­tween the as-planned start date of November 2, 1999, including 207 days of critical delay specific to the interval between Milestones 3 and 4. From April 28, 2000 to August 26, 2000, plaintiff worked on the exterior light-­gauge metal framing, drywall, and stucco system.

Milestone 5 was defined as the completion of the interior gypsum wallboard and was to take place on November 17, 1999. Instead, completion did not occur until March 14, 2001. Between Milestones 4 and 5, plaintiff on August 27, 2000, had begun work on the critical light gauge framing and interior wall­board, with the interior metal framing and gypsum wallboard systems being completed on March 14, 2001. This resulted in a 184-­day delay to the as-planned schedule for the interior gypsum wallboard of Milestone 4.

Between Milestones 5 and 6, plaintiff per­formed work on, and experienced delays with, mechanical work and data cabling above the ceilings. Plaintiff completed the Acoustical Ceiling Tile, tested and balanced the heating, ventilation, and air-conditioning (the “HVAC”) systems, and commissioned the building’s mechanical systems. The me­chanical commissioning of the EC/L Project occurred on June 13, 2001. Beneficial occu­pancy, as Milestone 6, was planned to occur on January 6, 2001, but did not occur until July 3, 2001.

Milestone 7 signified substantial comple­tion of the EC/L Project. On July 17, 2001, between Milestones 6 and 7, the Corps com­pleted relocation of operations from the ex­isting Building 311 to the Education Cen­ter/Library. This occurred fifteen days after Milestone 6, beneficial occupancy, was achieved, which was seventeen days earlier than the as-planned duration. Plaintiff com­pleted demolition of Building 311 and asbes­tos removal on August 31, 2001. The Corps declared Milestone 7 substantially completed on September 5, 2001,16 although punch list17 activity occurred through February 6, 2002. Per R00017’s thirty-day extension for changes to the main entry and clerestory, the final Project completion date had been sched­uled for February 2, 2001. The Corps as­sessed liquidated damages in the amount (re-­fleeting a reduction from the contract daily rate) of $62,580.00 for the 105 days of delay from February 2, 2001 to May 18, 2001.

2. Plaintiffs claims

Despite these changes and challenges, plaintiff managed to complete the EC/L Pro­ject, albeit at a significantly later date than the contract initially envisioned. Plaintiff is left with what it claims are unreimbursed direct cost issues associated with various as­pects of the EC/L Project due to the numer­ous changes made throughout the construc­tion. The solicitation for bids was issued prematurely, plaintiff not unreasonably con­tends, because the plans and specifications for the EC/L Project were incomplete and inadequate for construction. Due to these deficiencies, plaintiff assigns the Corps re­sponsibility for the additional costs incurred over the .course of the EC/L Project.

Plaintiff submitted a certified claim on September 20, 2001, pursuant to the Con­tract Disputes Act of 1978, 41 U.S.C. §§ 601-­613 (2000) (the “CDA”). As of the date plaintiff filed its complaint in the United States Court of Federal Claims, April 1, 2002, the contracting officer had delayed a final decision until completion of a Defense Contract Audit Agency (“DCAA”) audit on plaintiffs claim. Plaintiff filed its complaint based on a “deemed denial” of plaintiff’s certified claim pursuant to 41 U.S.C. § 605(c)(5). The case was transferred to the undersigned on March 8, 2004, for the pur­pose of conducting trial.

By the date of trial, plaintiff had reduced its claim from the $1,747,482.00 sought in its certified claim to $915,872.00.18 Trial ad­dressed five elements of liability and dam­ages: Direct Cost Issues ($136,852.00); Ex­tended General Conditions ($163,899.00); Extended Home Office Overhead ($285,-­893.00); Loss of Productivity ($251,066.00); and Extra Contract Administration Costs ($78,162.00). The Direct Costs Issues item­ize costs associated with design changes, ma­terials, and work not contemplated by plain­tiff at the time of bid due to defects in the plans and specifications. Extended General Conditions include extended field overhead and home office overhead costs incurred as a result of the extended contract period and not contemplated by plaintiff based on the defective plans and specifications.19 Extend­ed Home Office Overhead consists of the cost related to plaintiffs home office necessary to continue operating the EC/L Project. Loss of Productivity measures the productivity im­pact cost due to Corps changes and delays to the EC/L Project, and was measured by “the severity of impact to labor and labor related costs caused by the [Corps’s] delays and disruptions.” Finally, the Extra Contract Administration Costs are plaintiffs costs as­sociated with its employment of outside tech­nical and legal consultants that were em­ployed by plaintiff as a result of the defective plans and specifications. Plaintiff also re­quests remission of the $62,580.00 assessed as liquidated damages by the Corps.

DISCUSSION

I. Overview

1. Background

The centerpiece of plaintiffs case was the testimony of John D. (“Jack”) Jesse, who initially joined plaintiff in the capacity of its Operations Manager after the EC/L Project was underway. He also became Project Manager in October 1999, and served as Project Superintendent beginning in June 2001. The court does not question that Mr. Jesse is a competent and experienced manag­er of construction projects and well served plaintiff on the EC/L Project. However, he was not able to articulate sufficiently plain­tiffs view of the dynamics that drove this project. Plaintiff attempted to use Mr. Jesse’s testimony to support its theme that the EC/L Project suffered from a poor work­ing relationship between plaintiff and the Corps’s representatives. Although plaintiff portrayed Mr. Batchelor’s supervision of the EC/L Project as so exacting that it impeded plaintiffs progress, and despite Mr. Jesse’s testimony that there “seemed to be quite a bit of hostility between Sunshine’s people and the Corps of Engineers’ people,” Tr. at 364, the record does not support a finding that Mr. Batchelor’s conduct exceeded a reason­able, if exacting, degree of supervision.20 Mr. Jesse’s testimony did not further plain­tiffs cause in this regard.21 For example, Mr. Jesse’s assessment was that “Mr. Batchelor didn’t like the way we proceeded on some installation, different types of instal­lation.” Tr. at 366. To the extent that the court recognizes that Mr. Batchelor took a critical approach on the EC/L Project, the Corps and its representatives acted within them contractual rights and did not interfere with plaintiffs performance of the contract. Moreover, Mr. Jesse’s testimony that the Corps did not give sufficient direction was unconvincing, although he was correct in say­ing that “[tjhere wasn’t enough information” in the plans and specifications. Tr. at 366.

Plaintiff also relied on the testimony, somewhat to its detriment, of Mr. Yang,22 plaintiffs president, who was on the stand during two days of trial. Although Mr. Yang’s attempts to establish that plaintiffs difficulties in performance were due to the Corps’s mismanagement of the EC/L Pro­ject, the court did not find him to be a credible witness. Mr. Yang is not a licensed architect or a certified civil or structural engineer; he was not sufficiently involved in day-to-day activities to give an accurate, first-hand account of either contract perform­ance or the on-site working atmosphere; nor could not demonstrate a degree of involve­ment in the EC/L Project to support plain­tiffs claims of excessive Corps supervision. Because plaintiffs audited claim was bloated and replete with bogus items,23 see supra note 18, Mr. Yang’s credibility as plaintiffs president was undermined. A further harm to Mr. Yang’s credibility was his testimony that for bid purposes, he simply “throw [sic] in a number” for items, such as site walls, if he could not find information, and that he based his chosen number on a “Means Guide” consisting of estimates for pricing in the construction industry. Tr. at 201-02. Finally, despite some verbal masquerading from Mr. Yang, it was demonstrated that plaintiff had never undertaken a project of the size, complexity, or value of the EC/L Project. Tr. at 282-83. It would be a dis­service to “pick and choose” which parts of Mr. Yang’s testimony to accept and which not to accept, depending on whether his testi­mony helped or hindered plaintiffs case. Defense counsel simply elicited too much damaging information. Therefore, Mr. Yang’s testimony is given little weight.

Mr. Batchelor demonstrated on the stand that he was not plaintiffs nemesis; at most, he was a stem taskmaster in his position as the Corps’s COTR for the entirety of the EC/L Project. While Mr. Batchelor showed little regard for plaintiffs employees, such as its Quality Control Representatives (“QCR”), Superintendents, and Project Managers, his attitude did not create an environment rife with hostility; rather, he was a part of an environment with frustrating interactions be­tween plaintiff and the Corps and one in which differing opinions on how to proceed collided. Mr. Batchelor, for example, testified that his working relationship with Mr. Jesse was “[p]retty good[,]” Tr. at 1251, despite his frustrations with Mr. Jesse’s complaints about the inadequacy of contract drawings after Mr. Batchelor, in his own estimation, had explained any details within the draw­ings that Mr. Jesse questioned. Tr. at 1251-­52. As Mr. Batchelor testified, these discus­sions with Mr. Jesse amounted to a built-in delay in the EC/L Project, because, even after the clarifications, Mr. Jesse suspended work because of his claims that the drawings were inadequate. Tr. at 1251-52. Mr. Batchelor also testified to asking plaintiff to remove one of its QCRs, Mike Flanagan, because Mr. Flanagan had lied to Corps rep­resentatives during the EC/L Project. Mr. Batchelor was aware through prior deposi­tion testimony that Ernest Rainwater, anoth­er QCR, accused Mr. Batchelor of being the cause of his resignation. See Tr. at 1246^7. The court did not discern, from the cumula­tive testimony of plaintiffs witnesses, the heavy-handed supervisory behavior alleged by plaintiff as a reason for plaintiffs delay in performance of the EC/L Project.

2. The doctrine of patent ambiguity

While the resolution of plaintiffs claims in this matter often hinges on factual disputes, many of the disagreements between plaintiff and the Corps raise the issue of contractual ambiguity. A contract is ambig­uous “when [it] is susceptible to more than one reasonable interpretation.” E.L. Hamm & Assocs. v. England, 379 F.3d 1334, 1341 (Fed.Cir.2004). When an ambiguity exists, the “general rule is contra proferentem, which requires ambiguities in a document to be resolved against the drafter.” HPI/GSA-­3C, LLC v. Perry, 364 F.3d 1327, 1334 (Fed. Cir.2004). Inherent in this rule is the re­quirement that the contractor’s interpreta­tion be reasonable. Id. An ambiguity in a government contract “will only be construed against the government if it was not obvious on the face of the solicitation and reliance is shown.” NVT Techs., Inc. v. United States, 370 F.3d 1153, 1162 (Fed.Cir.2004). Two types of ambiguities are recognized: patent and latent ambiguities. A patent ambiguity “is one that is ‘obvious, gross [or] glaring, so that plaintiff contractor had a duty to inquire about it at the start[,]’ ” id. (quoting H & M Moving, Inc. v. United States, 204 Ct.Cl. 696, 716, 499 F.2d 660, 671 (1974)) (alteration in original), whereas a latent ambiguity is “[m]ore subtle” than a patent ambiguity, Triax Pac., Inc. v. West, 130 F.3d 1469, 1475 (Fed.Cir.1997).

The patent ambiguity doctrine pro­hibits application of the contra proferentem rule when an ambiguity is patent. HPI/­GSA-3C, LLC, 364 F.3d at 1334. The doc­trine calls for construing ambiguities against the contractor, not the drafter, “ ‘where the ambiguities are so patent and glaring that it is unreasonable for a contractor not to dis­cover and inquire about them.’ ” Id. (quoting Triax Pac., Inc, 130 F.3d at 1474-75) (inter­nal quotations omitted). A contractor has an obligation to inquire into an obvious ambigui­ty, and, if he does not do so, “his interpreta­tion will fail.” NVT Techs., Inc., 370 F.3d at 1162. Hence, while a contractor may recover for a latent ambiguity, it may not recover for a patent ambiguity. E.L. Hamm & Assocs., 379 F.3d at 1342.

Key to defendant’s successful proof against plaintiffs claims was the thorough, detailed testimony of Mr. Bolyard, a certified structural engineer who served as defen­dant’s expert. Mr. Bolyard was also very knowledgeable in terms of the overall con­tract performance sequence. While Michael T. Midgette, plaintiffs forensic expert, served plaintiff well as a consultant during contract performance, and was committed to advancing plaintiffs cause to the extent per­mitted by the scope of his retention, it was obvious at trial that he faced an uphill battle with numerous constraints hampering the task that plaintiff and the EC/L Project pre­sented him.

Mr. Bolyard testified as an expert in CPM scheduling for construction projects; delay analysis for construction projects; construc­tion cost estimating; construction cost analy­sis; and construction means and methods. See supra note 14. Mr. Bolyard has broad experience in the construction industry. He has served as a field engineer, design esti­mating engineer, and projects engineer for different employers on major construction projects. He has extensive experience in providing cost estimating services; CPM scheduling services; constructability reviews; construction cost analyses, including costs of changes and loss of labor efficiency; and analyses and cost control work. He is fully qualified to monitor and calculate a contrac­tor’s performance against a CPM schedule. Significantly, Mr. Bolyard was certified in April 2004 by the AACEI (formerly known by its full name, the Association for the Advancement of Cost Engineering Interna­tional) as a Planning and Scheduling Profes­sional, which is the only recognized profes­sional certification for practitioners of CPM methodology, and is a member of the Ameri­can Society of Civil Engineers, the Heavy Construction Contractors’ Association, the Construction Management Association of America, and AACEI.

Mr. Midgette was accepted as an expert in the field of scheduling and claims analysis and equitable adjustment claims. Mr. Mid­gette assists contractors with the resolution of construction contract disputes. He testi­fied that he has experience as a general contractor in residential and light commercial work and that he has served as an office manager, where he maintained and copied drawings, sent them to the field, and main­tained necessary data. He also has experi­ence with CPM scheduling, loss of productivi­ty analysis, and recovery schedules. Mr. Midgette is certified by AACEI as a Plan­ning and Scheduling Professional, which no­tably, however, he received after he submit­ted his revised expert report of August 30, 2004, as he sat for the AACEI certification exam on October 6, 2004. Tr. at 827. He has never prepared a bid estimate for a project on behalf of a construction contrac­tor. Mr. Midgette has a promising career as a construction consultant, because he showed himself to be dedicated and enthusiastic, but Mr. Bolyard’s background, range of experi­ence, and knowledge of the Project over­whelmed Mr. Midgette’s delay analysis and proved to be a more reliable source of expert opinion on the issues surrounding the EC/L Project.

II. Plaintiffs claims

1. Unresolved direct costs

During the course of the EC/L Project, the Corps’ defective plans and specifications, in plaintiffs view, forced plaintiff to alter how it planned to perform work or added elements of work. Plaintiff claims that it incurred additional costs as a result of these changes, some of which were not reimbursed.

1) Planter wall footers

Plaintiff asserts that it constructed footers, the concrete foundations, for the planter walls based on Note 6 on Sheet C-3.1 of the Enlarged Layout Plan. This note in­structed: “Provide new retaining wall. Re­fer to Section C & D, Sheet S-5.” JTX 2 at C-3.1. Based on the fact that the planter walls were not true retaining walls due to the minimal difference in elevation from one side to the other, according to Mr. Midgette, PX 318.109-110, plaintiff determined that Section C on Sheet S-5 applied to the planters on the north side of the building, while Section D applied to the retaining walls at the terraces. PX 318.109. The confusion arose when plaintiff constructed the footers for the plant­er walls based on Section C on Sheet S-5, JTX 1-C at S-5, which called for the footers to be 750 millimeters wide. Comparatively, Section D on Sheet S-5, JTX 1-C at S-5, called for footers of 1,100 millimeters in width. Plaintiff began work on the footings on March 6, 2000, and they were poured on March 16, 2000. The Corps rejected the footers as too narrow on April 17, 2000, and required plaintiff to enlarge the footers to the specifications shown in Section D of Sheet S-5. Plaintiff repoured the footings on May 22, 2000. PX 318.110.

Mr. Bolyard opined that plaintiff should have been able to construct the planter wall footers properly because information was available in the drawings to determine that the walls at issue were retaining walls and that the footings were to be 1,100 millimeters wide. He pointed out drawing C-3.1 of Change Order No. 0001, which noted the location of the planter wall footers. Mr. Bolyard identified Detail 1 on drawing C-3.1, an enlargement of the ramp and planter wall area that he had located elsewhere on draw­ing C-3.1 and consulted Note 6 on Detail 1. This Note, as stated earlier, required a new retaining wall and referenced Sections C and D on sheet S-5. Mr. Bolyard progressed to drawing S-5 of Amendment No. 0002, where Section D shows a section through a retain­ing wall with an unbalanced load, and Section C shows a retaining wall with balanced load­ing. Resolving the difference between Sec­tion D, which indicated that the footer width for the wall should be 1,100 millimeters, and Section C, which indicated that the footer width should be 750 millimeters, Mr. Bolyard then proceeded to drawing A-15 of Amend­ment No. 0002, entitled “Site Walls,” where a section mark on the “Partial Elevation-En­try Site Wall” directed him to Section 3 on drawing A-19A. This drawing, entitled ‘Wall Sections,” contained Section 3, as referenced in drawing A-15, was labeled “Site Wall Sec­tion @ Entry Ramp & Planter,” which, ac­cording to Mr. Bolyard, “shows a retaining wall at the planter and entry ramps with unbalanced loading.” Tr. at 1819. Based on his examination of the above drawings, com­bined with the unbalanced load of the ramp and planter walls, Mr. Bolyard determined that the footing on those walls was intended to be 1,100 millimeters in width.

Unlike Mr. Bolyard, plaintiffs expert, Mr. Midgette, was unable to provide a detailed explanation as to how plaintiff arrived at its determination of the footer width, other than to note that plaintiffs interpretation and use of Section C on sheet S-5 should be consid­ered a reasonable one. See Tr. at 946. Simi­larly, Mr. Jesse’s testimony that the plans and specifications “were very defective[,]” Tr. at 366, presented more of a general view than a specific explanation as to how or why the plans affected plaintiffs performance. Mr. Midgette attempted to dispute the Corps’s interpretation that the wall in ques­tion was a retaining wall, but eventually spoke in circles and came close to calling it a retaining wall when he discussed the draw­ings: “[One wall is] shown as a planter wall and one wall is slightly lower [in] elevation than the other, so one wall had dirt against it and is retaining something.” Tr. at 947. Mr. Midgette then admitted that he was not sure whether the wall was a retaining wall. Tr. at 947.

Mr. Midgette’s testimony was sorely lack­ing in explanation as to why plaintiff had reason to interpret the drawings as it did. Conversely, Mr. Bolyard explained, drawing by drawing, how logically to arrive at the determination of the width of the footers for the retaining wall. Although Mr. Bolyard demonstrated the plans were self-explanato­ry-at least to someone familiar with construc­tion projects-allowing that the possibility of an ambiguity was present in the drawings fails plaintiff, as well. Any such ambiguity could only be deemed patent because the discrepancies present in distinguishing be­tween the balanced and unbalanced loading were so glaring and obvious that plaintiff was required to question the contracting officer as to how to proceed with the footers. Be­cause plaintiff did not take this action, it cannot recover the $4,812.00, inclusive of di­rect costs for the work, home office overhead, profit, and bond expense, that it seeks from the Corps.

2) Clerestory windows

The dispute concerning the clerestory windows in the Project also presents a patent ambiguity. Plaintiffs windows subcontrac­tor, Weber Glass, Inc. (“Weber”), noted in the exclusion section to its September 14, 1998 bid proposal that “Note: Some area(s) of high clerestory framing/glass may require installation before installation of roofing pan­els. This should be clarified during job scheduling phase.” The bid also noted that “[p]lans do not clearly identify windows, but details generally show storefront and we quote as storefront.” In later correspon­dence, Weber informed plaintiff that the EC/L Project bid documents lacked descrip­tion of the panels at column liners 8, 11, G and P below the highest roof soffit line. PX 318.258. Jesse (“Tom”) Thomas, III, presi­dent of Weber, explained Weber’s problems with the solicitation and plans and the ambi­guity that Weber perceived in the plans. Mr. Thomas attempted to demonstrate the difficulties Weber, as a subcontractor on the Project, encountered in providing plaintiff with a comprehensive bid and in performing its job as the EC/L Project progressed due to deficiencies and a lack of consistency with­in the plans and specifications. He failed in his mission because Weber had acknowl­edged in writing in its bid that the contract documents were not clear as to exactly where clerestory windows were required.

Mr. Thomas testified that there was noth­ing in drawing A-7 of Amendment No. 0002 to the Solicitation for the Project that indi­cated a requirement for windows at the see­ond level of the east side of the building. Tr. at 323, 326. Drawing A-12 of Amendment No. 0002 gave him no information indicating a requirement of window installation below the highest roof soffit line and between col­umn lines eight and eleven. Tr. at 337-38. Instead, Mr. Thomas stated that the indicat­ed blank spaces could be interpreted as break metal counter flashing, which does not create a requirement for windows. Tr. at 338. Blank spaces also could be reasonably interpreted as plywood panels, cementitious panels, fascia panels or-even-windows. Tr. at 338. In contrast, Mr. Thomas testified that drawing A-10 contains a notation that explains blank spaces that are present in that drawing-namely, that an area of blank space on A-10 is an aluminum window system. Tr. at 340. This contributed to the confusion in interpreting the drawings because, as Mr. Thomas testified, a “plan sheet which has notations in some areas and clearly lacks notations in other areas would lead us to believe that windows are not required in the areas lacking those notations.”24 Tr. at 341.

Inherently, however, Mr. Thomas’s com­parison of drawings reveals a patent ambigu­ity in the plans. The ambiguity was obvious: One set of drawings contemplated windows for the blank spaces, while other drawings were unclear about the meaning of blank spaces. Mr. Thomas’s acknowledgment of the discrepancy pre-bid alerted plaintiff to the obvious ambiguities, which charged plain­tiff with the duty to inquire as to the Corps’s intent with respect to the requirements for windows.

Weber’s bid was to the “minimum stan­dard” provided by the plans and specifica­tions as established by the architect and developer of the documents. Tr. at 335. As a result of allegedly being unable to submit a thorough bid due to the deficiencies in the drawings, Weber claims that it performed additional clerestory work not originally planned, and that it incurred an additional cost of $33,373.00 as a result of this cleresto­ry installation. Weber requested payment from plaintiff, but has not received compen­sation for this work. In its revised expert report, plaintiff requests $40,053.00, inclusive of Weber’s direct costs, overhead costs, prof­it, and bond expense.

In response to plaintiff’s clerestory claims, the Corps argues that the drawings were unambiguous and called for installation of windows in the area in question based on drawings A-12 and A-13 of Amendment No. 0002 to the EC/L Project, or, alternatively, that a patent ambiguity existed.

Plaintiff’s clerestory windows claim for $40,053.00, inclusive of subcontracting costs, overhead, profit, and bond expense, is denied because a patent ambiguity was present, and plaintiff failed to inquire with regard to the drawings in question.25

3) East side windows

The ambiguity at issue with respect to-if, in fact, any ambiguity actually is pres­ent-is again patent. In its September 14, 1998 proposal, plaintiffs glass subcontractor, Weber, informed plaintiff that the “[pjlans do not clearly identify windows[.]” Later, dur­ing the EC/L Project, in an August 30, 2000 letter, Mr. Thomas wrote that the contract drawings did not indicate windows at the second floor, east elevation, between columns H and T, and that installation of these win-, dows would be an extra charge to plaintiff. Mr. Thomas testified that no such windows were indicated on drawing A-7. Tr. at 323. In the August 30, 2000 letter, after stating that the bid documents did not contain speci­fications for east side windows, Mr. Thomas also recognized that “elsewhere on the pro­ject blank spaces with vertical lines are used where windows are defined in the documents to be required. However, the following facts apply: ... II. Blank spaces with lines are used elsewhere on the elevations where glasswork is not required.”

While plaintiff itself should have reviewed the plans for such ambiguities, it was also made aware of the obvious ambiguity con­eerning the east side windows by Weber’s bid and letter. The ambiguity was not subtle; instead, it was quite apparent that different parts of the drawings indicated windows in a conflicting manner: Whereas spme blank spaces with lines indicated windows, some did not. This lack of specificity triggered plaintiff’s responsibility to seek clarification from the contracting officer.

Plaintiffs east side windows claim for $6,477.00, inclusive of subcontracting costs, overhead, profit, and bond expense, is denied because a patent ambiguity existed, and plaintiff failed to inquire with regard to the drawings in question.26

4) Air handler controls circuitry

Plaintiff claims that the electrical panel schedules in drawings E-16 and E-17, JTX 1-C, did not provide for any electrical circuitry for the four air handler controllers. As a consequence, plaintiffs electrical sub­contractor, Lavandera Electric Company (“Lavandera”), did not include wiring, con­duit, breakers or labor to install these mate­rials in its bid. As Lavandera was perform­ing work on the EC/L Project, it realized the deficiency and submitted a change order re­questing the costs to cover this work. Plain­tiffs expert, Mr. Midgette, unconvincingly testified that contractors, in a vacuum-like fashion, “bid what is shown on the draw­ings[,]” and that bidders do not have time minutely to analyze drawings for items that might be missing. Tr. at 956. He found it difficult to believe that plaintiff or its subcon­tractor should have planned for wiring circui­try that was not shown on the drawings. Tr. at 955.

This view is contrary to the Corps’s posi­tion that some level of coordination by the general contractor between the trades is re­quired during the bidding process. Plaintiff sought additional compensation for adding wiring and circuit breakers to provide power to controllers for heating and ventilating equipment. The Corps denied the request, and the parties proceeded to try a $1,200.00 claim.

Defendant points to the electrical specifica­tions for the Project at Section 16415.1.2.2, which state that the “Contractor shall coordi­nate electrical work with the HVAC and electrical drawings and specifications and provide power related wiring.” Defendant argues that this contractual provision alerts the general contractor and subcontractor to the fact that electrical requirements for the HVAC system depend on the equipment to be provided by the mechanical subcontractor, which was Superior Mechanical Systems in this ease. To properly bid this part of the work on the Project, plaintiff had to liaise between the trades so that power related wiring was provided for the HVAC system, which included the air handler controllers, id., and to determine which subcontractor-­electrical or HVAC-would supply the power related wiring. In essence, this contractual provision requires plaintiff to coordinate and supply a complete and operable system with regard to the air handling controller circui­try.

Mr. Bolyard solidified the Corps’s position that plaintiffs claim was without merit based on the technical specifications for the EC/L Project. The specific language of contract section 16415.1.2.2, pertinent to supply and installation of HVAC, provides that the con­tractor or its subcontractors may select the equipment that is best suited for the EC/L Project. Because the specifications allowed the contractor to select the equipment that would be used for the EC/L Project, the specific power requirements for each manu­facturer customarily are not detailed on the drawings. Hence, HVAC equipment was not detailed in the drawings because plaintiff had the option of submitting equipment by differ­ent manufacturers. According to Mr. Bol­yard, coordination must occur between the trades so that the electrical contractor may make proper provisions for the power re­quirements of the equipment once it is brought on site. Most importantly, Mr. Bol­yard established that, without this power re­lated wiring, the system would not be able to operate. Tr. at 1829.

Plaintiffs claim for $1,200.00, including cost to Lavandera, overhead, profit, and bond expense, must be denied because the con­tract directed plaintiff’s work to provide pow­er related wiring. This wiring was necessary for the air handling systems to operate, and the contract specifications called for operable HVAC systems. It was plaintiffs responsi­bility to coordinate between subcontractors to ensure the performance of this work.

5) Columns at planters and terraces

Plaintiff claims that the Corps re­quired columns at the planters and terraces, even though the EC/L Project drawings at Sheet C-3.1 did not indicate their presence. See PX 318.116. Mr. Midgette testified that the drawings were ambiguous, although he withheld judgment as to whether plaintiffs interpretation of the drawings was reason­able and marginally supported plaintiffs con­tention, stating that “Mr. Yang’s interpreta­tion may be held reasonable, it may not. However, I know it’s a cost he had to pay.” Tr. at 957. Mr. Midgette’s report indicates that plaintiff interpreted vertical lines on drawing A-15, JTX 1-C, as masonry control joints because the two vertical lines were not dimensioned and nor explained on the draw­ings as to what they represented.

Mr. Bolyard effectively rebutted Mr. Mid­gette’s testimony by demonstrating that a reasonable reading of the drawings leads to the conclusion that the vertical fines in ques­tion on drawing A-15, JTX 1-C, are columns at the planters and terraces. Mr. Bolyard meticulously walked through the process by which he determined the presence of col­umns: Beginning with sheet A-15, titled “Site Walls,” he focused on the center draw­ing of “Partial Elevation-Rear Entry & Li­brary Site Walls” and the “Partial Elevation-­Library Site Wall” drawing. Mr. Bolyard then referenced drawing C-3.1 to “gain an understanding of what the site drawing showed about the configuration of the walls in question.” Tr. at 1831. Drawing C-3.1 indicated curved walls in two locations. Mr. Bolyard returned to drawing A-15 and ana­lyzed the delineation of the walls on the partial elevations, showing that columns were indicated in those walls because the walls are curved in the drawings. Tr. at 1832. Com­paratively, walls in an elevation, such as the one in drawing A-15, normally would be represented with flat links to signal curva­ture. The requisite indicators therefore are present on the partial elevations of columns, shown by two and three vertical lines.27

Mr. Bolyard also relied on references on drawing A-15 to Sections 4 and 5 on drawing A-18. JTX 1-C. Section 4 on drawing A-18 showed the masonry wall “in a cross-hatched pattern .... And then the columns are indi­cated by the black finest.]” Tr. at 1836. The same pattern is shown in section 5. The cross-hatched area represented the wall, and the column in question was indicated by the fines present further down on the drawing. Tr. at 1836.

Mr. Midgette’s minimal testimony did not help plaintiff. In contrast, Mr. Bolyard thor­oughly demonstrated that columns were present in the drawings and that plaintiff should have recognized them based on a complete reading of the plans. As with other of plaintiffs claims, any ambiguity in the drawings must be deemed patent due to the glaring ambiguity of the meaning of the ver­tical fines-as masonry control joints or as columns. Plaintiff therefore had a duty to inquire as to the meaning of the vertical fines. Its failure to do so forfeits plaintiffs claim for $14,406.00, inclusive of its subcon­tractor cost, overhead, profit, and bond ex­pense.

6) Revised top of wall elevation

Plaintiff contends that the top of the planter walls was initially in the Project drawings as 4.35 millimeters, but, through modifications and alterations to the Project drawings, was altered to 4.25 millimeters and then, finally, to 4.65 millimeters. Plaintiff claims that it is owed compensation for the additional work that it performed on the wall elevation. Plaintiff presented no testimony on this claim other than Mr. Midgette’s con­elusory and unpersuasive testimony. Mr. Midgette merely repeated plaintiffs claim-­that the wall elevations changed from one drawing to the next-and was not able to substantiate a knowledge of the drawings to portend any understanding as to the relation­ship between drawings within the specifica­tions. Moreover, Mr. Midgette was unable to testify as to what, if any, work plaintiff had to perform due to the alleged changes in the drawings.

Mr. Bolyard’s testimony demonstrated the relationship between the drawings germane to the top of wall elevations, and showed that a reasonable interpretation of these drawings determines that the wall elevations remained constant at 4.65 millimeters throughout the EC/L Project. Mr. Bolyard began with drawing C-3.1, JTX 1-C, which included no­tations that said “FF Elevation 3.55” and “Top of Wall Elev. 4.35(TYP) Except at Ramp and Planter.”28 The second notation included an arrow to show that it applies to the retaining walls in the access ramp and planter area. Mr. Bolyard next referred to a section reference on the “Partial Elevation-­Entry Site Wall” part of drawing A-15, JTX 1-C, that directs the contractor to Section 3 on drawing A-19A. Tr. at 1838. On drawing A-19A, Section 3 provides elevations for the site wall section. The first pertinent note of this section denotes “Top of Masonry El: 101,100.” JTX 1-C. The second note states “Finished Floor El: 100,000.” JTX 1-C. Both notes were expressed in millimeters. Mr. Bolyard subtracted these elevations and found the difference to be 1,100 millimeters (1.1 meters). He then returned to drawing C-3.1 and added the 1.1 meters to the 3.55 meters discussed previously. This exercise results in an elevation of 4.65 meters for the top of the wall. Based on his review of the drawings, Mr. Bolyard testified that this di­mension did not change throughout the modi­fications to the drawings. Tr. at 1840.

Mr. Bolyard clarified plaintiffs confusion when he testified that he did not use the 4.35 meter measurement that plaintiff alluded to, because 4.35 refers to the typical elevation (TYP), and the issue with the walls is an exception, as noted on drawing C-3.1. Fur­ther, on drawing C-3.1 of Amendment No. 0002, a revised note reads “Top of Wall Elev. 4.25(TYP) Except at Ramp and Planter.” According to Mr. Bolyard, this does not, as plaintiff argues, mean that the top of wall elevations for the walls in this claim is 4.25 meters. Tr. at 1842. Instead, as in the original drawing, the finished floor elevation is shown as 3.55 meters, and the 4.25 meters does not apply to the walls at the ramp and the planter because that is the typical mea­surement. Here, the issue is controlled by the exception. The dimensions did not change in the amended drawings, so the top of wall elevation remained 4.65 meters.

Plaintiffs Revised Top of Wall Elevation claim, totaling $5,120.00, fails. The resulting extra work amounting to $4,266.00 that plain­tiff asserts it was required to perform in this area arose from plaintiffs failure to correctly interpret the EC/L Project’s drawings. As Mr. Bolyard testified, an analysis of the plans and specifications was sufficient to compre­hend the drawings properly.29

7) Window jamb condition

Plaintiff contends that the detail of the header of the first floor windows on drawing A-20 was deficient and that plaintiff could not construct the area as it was depict­ed because the CMU required by the draw­ings was not manufactured during the time frame of the EC/L Project. Instead, plaintiff used lumber and besser brick; the Corps compensated for the extra lumber, but de­nied plaintiffs claim for the extra cost of the besser brick. Mr. Midgette was not familiar with the nature of work performed, and was only able to testify that he believed part of plaintiffs work on the window jamb condition was an extra to the contract and that plaintiff is owed the amount, submitted as $2,780.00 in Mr. Midgette’s report, that the Corps has withheld.

Mr. Bolyard again provided necessary in­dustry knowledge and analysis for this claim. His discussion of drawing A-20, JTX 1-B, focused on Detail 4 entitled “Corner Pilast­er/Window Jamb.” Mr. Bolyard found that this detail required CMU, except for rigid insulation against the outside face of the steel column, as fill for the area around the steel column out to where the windows were to be installed. While plaintiff substituted some of the CMU area with besser brick, that area, in fact, could have been constructed with masonry, as called for in the drawings. Tr. at 1846. Even if masonry block was not available off the shelf to meet the specifica­tions, plaintiff could have cut the available CMU to fit the EC/L Project requirements. Tr. at 1847.

Plaintiffs claim in the amount of $2,780.00, inclusive of overhead, profit, and bond ex­penses, for the besser brick used in place of CMU fails because plaintiff could have con­structed the window jamb condition as re­quired by the drawings. Instead of cutting CMU block, plaintiff used a less expensive substitute in the besser brick as an alterna­tive design method.

8) Differences in dimensions on A-5 and S-3.1 drawings

Proving that no claim was too small for trial, damages sought on this claim stand at $182.00, plus markup. During construction plaintiff discovered a 100-millimeter discrep­ancy between drawing A-5 (architectural) and drawing S-3.1 (structural). The Corps did not dispute plaintiffs contention that drawing A-5 presented column line K to T along line 16 as 19,500 millimeters, whereas drawing S-3.1 presented the same line as 19,400 millimeters. Once plaintiff alerted the Corps of this discrepancy, the Corps in­structed plaintiff to use the dimensions con­tained in drawing S-3.1. Plaintiff requested updated architectural drawings; the Corps declined to provide such drawings and in­structed plaintiff to reflect the change in the as-built drawings. Plaintiff also requested a change order for this work, but the Corps again declined. Mr. Midgette’s testimony was limited to verifying the invoice submitted by plaintiffs subcontractor for the amount claimed.

Plaintiff was unable to substantiate its alle­gations that the Corps was responsible for the extra costs that plaintiff claims it in­curred due to the differences in dimensions on the two drawings. Plaintiff alerted the Corps to the discrepancy-something plaintiff failed to do on many other occasions that would have saved it much aggravation-and the Corps directed plaintiff to follow drawing S-3.1. It is also questionable why plaintiff would request more money for this item of the EC/L Project, when the Corps actually instructed plaintiff to construct to the smaller of the column lines.

9) Unidentified fascia material

Plaintiff contends that fascia materi­al was not correctly identified in the original A-18 and A-19 drawings, but that the soffit is defined as plaster on weatherproof gypsum board. Because of the failure of the plans and specifications to identify the fascia mate­rial, plaintiffs plaster and roofing subcon­tractors did not include fascia-related costs, such as purchasing and installation, in then-­bids. Plaintiff subsequently incurred $28,514.00 in additional costs when it was forced to pay its subcontractors to purchase and install the fascia that was not originally included in the bids.

K.G. Sales, Inc. (“KG.Sales”), an architec­tural sheet metal contractor, served as plain­tiffs metal roofing subcontractor. According to George Frey, Vice-President of K.G. Sales, the EC/L Project drawings did not indicate any exterior finish for the fascia and that K.G. Sales did not include that area of work in its bid because it was not indicated as sheet metal. Mr. Frey testified that his later conversations with plaintiffs represen­tatives established that K.G. Sales would be compensated for the change order requiring K.G. Sales to install colored sheet metal for the fascia panel.

While Mr. Frey presented himself as a knowledgeable witness for plaintiffs claim, cross-examination revealed that K.G. Sales’s September 15, 1998 bid proposed “to furnish all labor, material, tools and equipment nec­essary to erect the metal roof panels includ­ing dry-in, rigid insulation, fascia, gutters and downspouts.” See Tr. at 668. More­over, Mr. Frey’s handwritten summary of the estimate included a line for “fascia 19 sq @ 140” for a total of $2,660.00. JTX 190/1. On the last page of his estimate, Mr. Frey made a notation for 950 feet of fascia, and a labor estimate of two men for twelve days. Final­ly, K.G. Sales’s subcontract with plaintiff re­quires K.G. Sales to provide “[a]ll work nec­essary or incidental to complete[,]” including providing labor, material, and equipment needed to “erect the metal roof panels, in­cluding dry-in, rigid insulation, fascia, gut­ters, and down spouts.” Critical to Mr. Frey’s discussion of K.G. Sales’s bid, howev­er, was his testimony that he did not provide an estimate for fascia because the composi­tion of the fascia was not defined in the drawings. Mr. Frey left the determination of the fascia composition to plaintiff for reso­lution with the Corps.

It appears that Mr. Frey’s handwritten estimate was just that-an estimate-and not part of K.G. Sales’s contract with plaintiff, which generally instructs that K.G. Sales will provide fascia. As such, Mr. Frey’s testimo­ny that he did not price fascia because he was waiting for plaintiff to inquire as to the type of fascia corresponds with the documen­tary evidence. Unfortunately for plaintiff, however, Mr. Frey’s testimony indicates that plaintiff was aware of the lack of specificity for the fascia and that K.G. Sales had dis­cussed this with plaintiff. See Tr. at 668.

Plaintiff cannot prevail on this claim be­cause it failed, again, to address a patent ambiguity in the drawings. Its discussions with K.G. Sales alerted plaintiff to this lack of clarity, and plaintiff did not fulfill its duty of asking the contracting officer to clarify the ambiguity. As the general contractor, plain­tiff was responsible for ensuring that its sub­contractors appropriately addressed the EC/L Project requirements. Going forward based on K.G. Sales’s quote when plaintiff had been made aware of the ambiguity fore­closes plaintiff from recovering the $27,874.00, inclusive of subcontractor cost, overhead, profit, and bond expense, that it claims.

10) Increased painting costs

Plaintiff takes the position that its initial painting subcontractor, Shivers Paint Company (“Shivers”), defaulted on its sub­contract because of problems with the draw­ings and the delays caused by the Corps’s failure to respond to RFIs. In its contract with Shivers, plaintiff had contracted for painting, wall covering, and joint sealant (caulkjng) for the EC/L Project. When plaintiff contracted with B & G Painting, Inc., to replace Shivers, caulking was not included in the new contract, and plaintiff retained an additional subcontractor for that work. Hence, plaintiffs claim for the in­creased painting work is based on the costs associated with hiring new subcontractors. Plaintiff asserts that the difference was $18,900.00, and that, with overhead, profit, and bond expense, the total claim is $22,683.00.

Again, testimony dooms plaintiff’s claim. Mr. Jesse testified that Shivers repeatedly ignored plaintiff’s communications and did not timely submit proposals. Tr. at 559. A ream of correspondence between plaintiff and Shivers demonstrates plaintiffs difficulty in its relationship with Shivers: A September 30, 1999 facsimile transmission from Mr. Poole to Shivers requested required submit­tals for the EC/L Project. The following year, a March 30, 2000 fax from Mr. Jesse to Shivers requested a cost proposal for a change order to drywall and paint, but as of April 10, 2000, plaintiff had not received this proposal and had been unable to reach Shiv­ers via telephone. Mr. Jesse pointed out Shivers’s failure to communicate in an April 17, 2000 fax, but again, according to Mr. Jesse, plaintiff received no response, see Tr. at 559. Mr. Jesse followed this fax with a letter to Shivers on April 18, 2000, reiterat­ing Shivers’s failure to adhere to its contract responsibilities. In a May 22, 2000 letter, plaintiff subsequently gave Shivers a cure notice under the contract, warning that Shiv­ers’s subcontract with plaintiff would be ter­minated in seven days if it did not respond to plaintiffs requests for correspondence. Not surprisingly, Shivers did not respond, and plaintiff terminated its contract with Shivers in a June 9,2000 letter.

Mr. Jesse was unable to substantiate that Shivers, plaintiffs original paint subcontrac­tor, defaulted on its contract due to defects in the plans and specifications. Instead, his testimony indicates that Shivers was unre­sponsive to plaintiffs apparently reasonable requests for submittals and other information relating to the EC/L Project. Mr. Jesse’s acknowledgment that he never had any oral communication with representatives from Shivers concerning nonperformance and de­fault further detracts from plaintiffs claim. Without speaking or corresponding with Shivers, plaintiff presents mere conjecture that Shivers defaulted due to faulty plans and specifications. Plaintiffs claim must be denied.

11) Additional cost for development of as-built drawings

Plaintiffs final direct cost claim as­serts that it incurred more than six times its budgeted amount of $3,400.00 for as-built drawings30 due to the magnitude of deficien­cies in the drawings for the EC/L Project. Plaintiff minimizes the enormity of the claim, however, by admitting that much of the al­leged cost overrun is absorbed in its Project Manager’s salary and only reimbursable in the extended general conditions of its claim because that position was responsible for drafting the as-built plans. Plaintiff ulti­mately claims that it spent $8,925.00 on put­ting the as-built drawings in an electronic format to complete the contractual require­ment of as-built drawings, $5,525.00 over its budgeted amount of $3,400.00. With over­head, profit, and bond expense included, plaintiffs claim for the as-built drawings amounts to $6,631.00.

As has been the case for prior claims, plaintiff has not demonstrated sufficient evi­dence that the difference between its bid amount for as-built drawings and the actual amount spent on the drawings is attributable to any defects in the plans and specifications for the Project. Plaintiff is also harmed by the contract language of Section 01000-10(e), which states “Payment: No separate pay­ment will be made for the as-built drawings required under this contract, and all costs in connection there-with will be considered a subsidiary obligation of the Contract.” Addi­tionally, Mr. Bolyard’s report highlights a critical point: Simply, “it appears that Sun­shine’s budgeted cost to provide electronic format ‘As-Builts’ was underestimated.”

While it is unfortunate that plaintiff must bear what, to it, appears to be an extra cost, the contractual language requires plaintiff to perform the task of producing as-built draw­ings. That plaintiff failed to adequately bid its as-built drawings and then encountered some difficulty in their execution cannot be deemed the responsibility of the Corps with­out a further showing from plaintiff. Because of the lack of evidence tying the defective drawings and specifications to plaintiffs struggle with the as-built drawings, plaintiffs final direct cost claim cannot succeed.

12) Uncontested claims

Defendant does not dispute two of plain­tiffs claims. It accepts liability for plaintiffs Add Interior Windows claim to the extent of the $2,143.00 in direct costs, and does not dispute the 7% profit and 0.65% bond ex­pense rates. Defendant does, however, dis­pute plaintiffs 11.44% rate for overhead markup. Defendant also does not dispute liability for plaintiffs claim of $2,026.00 for the Weld Reinforcement Bar to Lintels. De­fendant accepts the $1,642.00 in direct costs, and the 10% profit and 0.65% bond expense rates proffered by plaintiff, but does contest plaintiffs markup for overhead at 11.44%.

Defendant based its dispute of plaintiffs 11.44% markup for overhead on the DCAA audit produced by Mr. Lundy and Mr. Lun­dy’s testimony at trial. According to Mr. Lundy, plaintiffs direct cost claims were en­titled a 3.3% home office overhead (“G & A”) markup because the DCAA questioned 10.7% of plaintiffs claimed 14% G & A rate. See DX 595/24; Tr. at 1769. The markup on the direct cost claims does not include the $124,745.00 that Mr. Lundy computed in the calculation of unabsorbed home office over­head under the Eichleay formula.31 As plaintiff has not carried its burden under the Eichleay formula, it is not entitled to recov­ery. Mr. Lundy took the position, therefore, that the $124,745.00 for unabsorbed home office overhead must be added back to the allowable G & A costs. Tr. at 1769-70. This produces a revised G & A markup of 5.9%. Tr. at 1770.

Mr. Lundy’s testimony was credible and exacting. Plaintiff failed to produce evidence to show why it is entitled to a G & A markup of 11.44% on its direct cost claims. Its un­disputed claims shall be calculated using the 5.9% G & A markup rate, entitling plaintiff to $2,444.00 for its Add Interior Windows claim and $1,925.00 for the Weld Reinforcement Bar to Lintels claim.

2. Delay Costs

Plaintiff asserts that the Corps caused the delays associated with the EC/L Project and that the Corps, as a conse­quence, is responsible for costs resulting from that delay. When a contractor asserts a claim based on alleged government-caused delay, “the contractor has the burden of proving the extent of the delay, that the delay was proximately caused by government action, and that the delay harmed the con­tractor.” Wilner, 24 F.3d at 1401; see also Servidone Constr. Corp. v. United States, 931 F.2d 860, 861 (Fed.Cir.1991) (“To receive an equitable adjustment from the Govern­ment, a contractor must show three neces­sary elements-liability, causation, and resul­tant injury.”). The Eichleay formula is used to compensate a contractor for unabsorbed overhead costs due to government-caused de­lay. P.J. Dick Inc. v. Principi, 324 F.3d 1364, 1370 (Fed.Cir.2003); see supra note 31. As plaintiff has failed to demonstrate the requisite causation between the Project delay and the Corps’s actions, plaintiffs delay claims fail. Further, plaintiff did not show that, per the Eichleay formula, it was forced to standby during the delays, thereby elimi­nating use of the Eichleay formula.

1) Delay along the critical path

Along with its direct cost claims, plaintiff alleges that defective plans and spec­ifications generated delay on the EC/L Pro­ject from January 3, 2001, to August 31, 2001-a total of 240 days, 204 of which plain­tiff deems excusable and compensable. The resolution of plaintiffs delay claims, similar to many of its direct cost claims, must be based on the testimony of the parties’ respec­tive experts and their competing delay analy­ses.

Mr. Midgette introduced his Time Entitle­ment Analysis, whereby, in essence, he com­pared the EC/L Project’s critical path with end-of-the-month updates to determine how many days of delay occurred during a given month. See Tr. at 972-73. Comparatively, Mr. Bolyard prepared a Critical Path Meth­od Schedule Delay Analysis, in which he reviewed the as-planned schedule, schedule updates, progress payments and other Pro­ject documentation in order to construct an as-built schedule. Mr. Bolyard identified the critical path on the as-built schedule, com­pared it to the critical path on the as-planned schedule, and analyzed “where activities may have been performed in the same time as was originally planned, may have been per­formed in a shorter time than original [sic] planned, or may have been performed in a longer time than originally planned.” Tr. at 1852. For activities that occurred in periods shorter or longer than planned, Mr. Bolyard analyzed the cause for the change. This was the foundation for his delay analysis. Tr. at 1852-58.

Mr. Bolyard’s testimony and expert report are to be commended for their clarity, com­prehensiveness, and reliability. Plaintiff was not persuasive that Mr. Midgette’s approach represents an accepted CPM methodology.32 Mr. Midgette, who had consulted for plaintiff intermittently since May 1999 on the contract performance issue, was not convincing that the Corps required plaintiff to provide data adjusted on a monthly basis. Plaintiff updat­ed its as-planned schedule on a monthly ba­sis, which had the effect of disregarding any chain of events that reflected actual progress. The court finds that the delays on the Pro­ject occurred consistent with Mr. Bolyard’s analysis.

While plaintiff reached Milestone 1 thirty-­five days ahead of schedule, it subsequently incurred delay between Milestone 1 and Milestone 2. The critical delay from the foun­dation work totaled thirty-eight calendar days, and Mr. Bolyard assigned thirty-one of those days to plaintiff because of its “self-­inflicted production problems” and “numer­ous foundation production problems!,]” DX 574/61, and the other seven days of responsi­bility to the Corps. He attributes minimal delay impact on the foundation construction to Modification P00002, but allotted the seven days of delay to the Corps to cover any possible delays for which the Corps may have been responsible.

The elapsed time between Milestones 2 and 3 of the EC/L Project resulted in fifty-­eight days of delay. As of the date on which plaintiff began the CMU walls at Milestone 3, the Project had been delayed a total of nine­ty-two days from the as-planned schedule. Between Milestones 2 and 3, Mr. Bolyard attributed the entirety of the fifty-eight day delay to plaintiff because of its “slower than planned production.”33 DX 574/65.

Between Milestones 3 and 4, the first floor CMU work commenced on November 30, 1999-a ninety-two day delay from the as-­planned schedule-and was completed on March 27, 2000. Mr. Bolyard found a 207-­day delay between Milestones 3 and 4, to which he attributed 87 days of delay to plain­tiffs CMU production, 31 days to plaintiffs late framing and stucco submittals, 34 days to plaintiffs work on exterior metal framing and stucco, and 70 days to the Corps’s altera­tion to the exterior light-gauge metal framing and stucco system. Mr. Bolyard credited the Corps with fifteen days of recovery “due to reduction in the planned critical duration of activities!,]” DX 574/74, and determined that of the 207 days in the delay between Mile­stones 3 and 4, plaintiff was responsible for 152 days, while the Corps was responsible for 55 days.

According to Mr. Bolyard, work between Milestones 4 and 5 created a 184-day delay because of the delayed finish to the gypsum wallboard systems. During this period the mechanical systems installation became criti­cal from August 27, 2000 through March 14, 2001, because of the trade work scheduling between the interior wall construction and the above ceiling mechanical work. The me­chanical installations were the sole critical activity from March 15, to April 6, 2001. Mr. Bolyard assigned responsibility to plaintiff for 184 days of delay to Milestone 5 because of plaintiffs “significant production prob­lems!,]” DX 574/78, while the Corps was re­sponsible for 17 days of critical concurrent delay due to additional time required for changes in the clerestory covered in Modifi­cations R00012, R00013, and R00017, and the relocation of exhaust fan # 5, as required by Modification R00012, thereby making plain­tiff responsible for 167 days of inexcusable critical delay. By this point, at Milestone 5, the EC/L Project was 483 days behind the as-planned schedule.

Due to delays various items of work joined the critical path between Milestones 5 and 6: Mechanical work above the ceiling was the single critical path from March 15, 2001 to April 6,2001; data cabling was on the critical path from April 7, 2001 to May 15, 2001; and the completion of the Acoustical Ceiling Tile was critical from May 15, 2001 to its comple­tion on May 24, 2001. A total of 110 days elapsed between Milestones 5 and 6; this was 61 days longer than the as-planned schedule allowed. By the time Milestone 6 was achieved, the Project was 544 days be­hind the as-planned schedule. Mr. Bolyard attributes fifty-one days of critical delay-of the sixty-one days in excess of the as-planned schedule-to plaintiff due to its production that was slower than planned and its inability to explain periods of no work, including its failure to address critical path work, and its failure to provide its subcontractors with req­uisite shop drawings. Mr. Bolyard found that the Corps was responsible for ten days of the delay due to data cabling routing changes, and defendant concedes this ten-day delay.

Finally, Mr. Bolyard assigned thirty-three days of critical delay between Milestone 6 and Milestone 7 to plaintiff because of plain­tiffs “failure to properly plan and manage the work.” Plaintiff required fifty days, July 18, 2001 to September 5, 2001, to attain substantial completion of the Project, thirty-­five days longer than planned. As a two-day discrepancy existed between the contract and the as-planned schedule for the relocation of the Corps to the new building, Mr. Bolyard credited plaintiff with two days, which re­duced the critical delay to thirty-three days.

The court reviewed all aspects of Mr. Bol­yard’s testimony and analysis and deter­mined that Mr. Bolyard’s conclusions are rehable and correctly reflect the critical path of the delays that occurred and the parties’ respective responsibilities for delay.

Plaintiff is entitled to reimbursement for its extended field overhead costs during the ten-day delay during the data cabling routing changes conceded by defendant. While plaintiff asserts that the daily rate of reim­bursement should be $738.00, the court finds that defendant’s proposed rate of $553.00 per day is proper.34 With a 5.9% G & A markup, see DX 595/24; Tr. at 1769-70, 10% profit markup, and 0.65% bond expense, defendant conceded $6,484.00 for plaintiffs field over­head claim.

Additionally, because it was forced to con­tinue devoting its resources to the EC/L Project for a longer-than-planned period, plaintiff seeks reimbursement for unab­sorbed home office overhead for 180 of the 240 days of delay from January 3, 2001 to August 31, 2001. Plaintiff also seeks recov­ery for the 205-day no-cost extension grant­ed by Modifications P00006 and R00011 (June 12, 2000 to January 3, 2001). Plaintiff calculates 385 days of delay at $671.00 per day, and, inclusive of markups for profit and bond cost, requests $285,893.00 in reimburse­ment expenses. Plaintiff, however, did not prove that all work in the contract was ever suspended during any particular time period. See P.J. Dick, Inc., 324 F.3d at 1370; see also supra note 31. Messrs. Jesse and Midgette testified that no formal suspension of work occurred, nor did any witness testify that most or all of the work was suspended at any time. Thus, plaintiff cannot recover under the Eiehleay formula for unabsorbed home office overhead.

2) Loss of productivity costs

Plaintiff alleges that defective specifications, the Corps’s failure to provide corrected drawings, and plaintiff’s subse­quent attempts to mitigate damages as de­lays occurred entitle it to compensation. In assessing its damages, plaintiff utilized a Modified Total Labor Cost Method. A total cost method is based on the formula that a contractor is owed the difference between the actual cost of the contract and the con­tractor’s bid, Raytheon Co. v. White, 305 F.3d 1354, 1365 (Fed.Cir.2002), whereas a modified total cost method adjusts the total cost method for a contractor’s lack of proof in the requirements of the total cost method, Propellex Corp. v. Brownlee, 342 F.3d 1335, 1339 (Fed.Cir.2003). A total cost method is not favored and should not be used where another, more reliable, method is available by which to compute a contractor’s damages. Hi-Shear Tech. Corp. v. United States, 356 F.3d 1372, 1383 (Fed.Cir.2004). To utilize the total cost method, a contractor must prove: “(1) the impracticability of proving its actual losses directly; (2) the reasonableness of its bid; (3) the reasonableness of its actual costs; and (4) lack of responsibility for the added costs.” Id. Under a modified total cost approach, a contractor still has the bur­den of proving these four requirements, al­though that burden is eased. Propellex Corp., 342 F.3d at 1339.

Mr. Midgette attributed delay causes to many of the factors listed by the Mechanical Contractors Association of America (the “MCAA”)35 as factors affecting productivity: the stacking of trades; poor morale and attitude on the job site; reas­signment of manpower; crew size inefficien­cy; concurrent operations (stacking of plain­tiffs own force); dilution of supervision; a continually-changing learning curve due to changes on the EC/L Project; errors and omissions on the EC/L Project because of constant changes; site access interference affecting subcontractors’ ability to perform work; and ripple effect, whereby changes in one trade’s work affected the overall sched­ule.

After Mr. Bolyard’s testimony demonstrat­ed that Mr. Midgette’s approach measuring lost productivity was not recognized as an accepted approach by his peers or by any trade association, plaintiff adopted Mr. Bol­yard’s analysis, which would have netted plaintiff $40,952.00.36 However, the court has found that plaintiff did not sustain the predicate for loss of productivity by showing that the Corps was responsible for the un­derlying causes of delay due to the defective plans and specifications.

3) Remission of liquidated damages

Plaintiff seeks remission of the $62,580.00 assessed by the Corps as liqui­dated damages because it asserts that the delay on the EC/L Project was due to the Corps’s actions and failures under the con­tract. The original contract between plaintiff and the Corps provided for a penalty against plaintiff of $1,275.00 for each day of delay on the EC/L Project. According to Kevin A. Powell, Florida Area Engineer, United States Army Corps of Engineers, Mobile District, the total amoúnt of liquidated dam­ages was recalculated to an amount that he “felt to be a more fair and equitable rate of true impacts to the government or true costs to the government for the delays.” Tr. at 1477. The Corps reduced this penalty to $596.00 per day in July 2001, and assessed liquidated damages against plaintiff in this amount for the 105-day period of delay from February 2, 2001 to May 18, 2001. On May 18, 2001, the Corps determined plaintiff had substantially completed construction of the Education Center/Library portion of the con­tract (plaintiff had not yet demolished the existing library). The Corps assessed liqui­dated damages against plaintiff for 105 days of delay. Defendant subsequently conceded twenty-two of these days prior to trial and does not dispute that plaintiff is entitled to remission of the liquidated damages for these days.

The law on the apportionment of liquidated damages is unsettled, particularly with re­spect to sequential, as opposed to concurrent, delay. One line of sequential delay cases identifies the “rule against apportionment,” which holds that “ “where delays are caused by both parties to the contract the court will not attempt to apportion them, but will sim­ply hold that the provisions of the contract with reference to liquidated damages will be annulled.’” Acme Process Equip. Co. v. United States, 347 F.2d 509, 535, 171 Ct.Cl. 324, 367 (Ct.Cl.1965) (quoting Schmoll v. United States, 91 Ct.Cl. 1, 28, 1940 WL 4133 (1940)), rev’d on other grounds, 385 U.S. 138, 87 S.Ct. 350, 17 L.Ed.2d 249 (1966); see also United States v. United Eng’g & Construct­ing Co., 234 U.S. 236, 242, 49 Ct.Cl. 689, 34 S.Ct. 843, 58 L.Ed. 1294 (1914) (holding that in order to enforce liquidated damages clause, party assessing damages must not prevent performance under contract, and that if it does, even if completion is “delayed by the fault of the contractor, the rule of the original contract cannot be insisted upon, and liquidated damages measured thereby are waived”).

In a later case, however, the United States Supreme Court affirmed a Court of Claims decision that apportioned liquidated damages in the instance of a sequential delay. Robin­son v. United States, 261 U.S. 486, 43 S.Ct. 420, 67 L.Ed. 760 (1923). The Court held that government-caused delay does not deny the government compensation for loss suf­fered due to fault of the contractor because “the contractor agreed to pay at a specific rate for each day’s delay not caused by the government, [and] it was clearly the intention that it should pay for some days’ delay at that rate, even if it were relieved from pay­ing for other delays, because of the govern­ment’s action.” Id. at 488, 43 S.Ct. 420. The Robinson Court distinguished the case from United Eng’g & Constructing Co., 234 U.S. 236, 49 Ct.Cl. 689, 34 S.Ct. 843, by noting that the question in United Eng’g & Constr. Co. was one of documentary construction, and that the liquidated damages clause in that case was not applicable. Robinson, 261 U.S. at 489, 43 S.Ct. 420. Conversely, the issue in Robinson was not one of construc­tion, so Robinson is law that sequential delay does not sound a death knell for a liquidated damages provision.

Most recently, the United States Court of Appeals for the Federal Circuit issued Sauer Inc. v. Danzig, 224 F.3d 1340 (Fed.Cir.2000). In Sauer the Federal Circuit stated the gen­eral rule of liquidated damages, which re­quires “a party asserting that liquidated damages were improperly assessed [to] bear[ ] the burden of showing the extent of the excusable delay to which it is entitled.” Id. at 1347. It then upheld a decision by the Armed Services Board of Contract Appeals apportioning in the contractor’s favor two days of assessed liquidated damages from a sequential delay to the project at issue be­cause the contractor had demonstrated only two days of excusable delay. Id. While the Sauer court did not discuss precedent con­cerning the apportionment of liquidated dam­ages, it did distinguish two cases cited by plaintiff as inapplicable because those cases addressed liquidated damages in the context of concurrent delay. See id.

A thorough, insightful analysis of the ap­portionment of liquidated damages was given in a recent decision by another judge of this court. See R.P. Wallace, Inc. v. United States, 63 Fed.Cl. 402, 409 (2004). The court agrees with the analysis in R.P. Wallace, Inc. that finds Sauer’s “clear apportionment” rule consistent with the Supreme Court precedent of Robinson. Although Sauer did not dis­cuss precedent on apportionment of liqui­dated damages, and therefore did not indi­cate the Federal Circuit’s current stance on “no apportionment” versus “clear apportion­ment,” Sauer is recent easelaw and is consis­tent with the Supreme Court’s decision in Robinson. The rule against apportionment should not be applied in this instance, and the court therefore follows Robinson’s mini­mization of the importance of the chronology of delays when determining apportionment of liquidated damages:

If it had appeared that the first 61 days’ delay had been due wholly to the contrac­tor’s fault, and the Government had caused the last 60 days’ delay, there could hardly be a contention that the provision for liqui­dated damages should not apply. Here the fault of the respective parties was not so clearly distributed in time, and it may have been difficult to determine, as a mat­ter of fact, how much of the delay was attributable to each. But the Court of Claims has done so in this case. Its find­ings are specific and conclusive.

Robinson, 261 U.S. at 488-89, 43 S.Ct. 420.

Although plaintiff could not demonstrate with certainty that any of the delay claimed was excusable on the EC/L Project, prior to trial defendant remitted liquidated damages for twenty-two days. Thirteen of these days attributable to the Corps occurred between March 2, 2001 and March 14, 2001, when additional time was required to account for changes in the clerestory covered by Modifi­cations R00012, R00013, and R00017. An additional three days of Corps-induced delay ran from April 7, 2001 through April 9, 2001, when changes occurred in the routing of data and communications cable. The final six days in defendant’s concession of Corps-at­tributed delay occurred from May 10, 2001 through May 15, 2001, during the completion of data cabling. The court finds that, under Robinson and Sauer, apportionment is prop­er. The Corps is currently in possession of the $62,580.00 assessed in liquidated dam­ages against plaintiff. The concession of twenty-two days totals a i’emission of $13,112.00 in liquidated damages.

CONCLUSION

Based on the record developed at trial, the court finds and concludes that plaintiff can­not establish liability, other than for the two direct cost claims that defendant conceded before trial and for ten days of delay as conceded by defendant for field overhead costs. The Government must remit con­ceded liquidated damages assessed for twen­ty-two days of delay on the Project. Accord­ingly,

IT IS ORDERED, as follows:

1. Plaintiff is entitled to recover $2,444.00 for the Add Interior Windows claim and $1,925.00 for the Weld Reinforcement Bar to Lintels claim.

2. Plaintiff is entitled to recover $6,484.00 for field overhead costs.

3. Plaintiff is entitled to remission of liq­uidated damages in the amount of $13,112.00.

4. The Clerk of the Court shall enter judgment for plaintiff in the amount of $10,853.00, with interest pursuant to 41 U.S.C. § 611 (2000), from September 20, 2001.

1

. The EC/L Project Bid consisted of the following items of work: Bid Item Nos. 1-4 (the Base Bid) were (1) Education Center/Library; (2) Site Work; (3) Demolition of Building 311; and (4) Asbestos Removal, Building 311. Option No. 2 was "Two Story Addition (8 Classrooms)," and Option No. 3 was "Vehicle Parking Area & De­tention Basin No. 1.” Option No. 1 was not listed.

2

. The Small Business Act, 15 U.S.C. §§ 631-657 (2000), assists "eligible small disadvantaged busi­ness concerns compete in the American economy through business development” through section 8(a), 15 U.S.C. § 637(a). 13 C.F.R. § 124.1 (2005). Under section 8(a), a small business concern is one "owned and controlled by socially and economically disadvantaged individuals[,]” and which has participated in the small business and capital ownership development program. 15 U.S.C. § 637(a)(1)(C).

3

. According to Pin Fei (“Mike") Yang, plaintiff's president, Sunshine Construction & Engineering, Inc., is no longer in business because "this pro­ject call[ed the] Education Center and Library in MacDill Air Force Base ... basically drainfed] out all [of] my companyfs] resources.” Tran­script of Proceedings, Sunshine Constr. & Eng'g, Inc. v. United States, No. 02-250C, at 14 (Fed.Cl. Dec. 6-10, 13-15, 2004) ("Tr.”). On cross-exam­ination defense counsel challenged this charge and elicited testimony from Mr. Yang showing that plaintiff’s certified claim did not state that plaintiff went out of business as a result of the EC/L Project, or that plaintiff filed for bankrupt­cy. See Tr. at 239-40. But, then, defendant should be reminded that trial is a de novo pro­ceeding. Wilner v. United States, 24 F.3d 1397, 1401-02 (Fed.Cir.1994) (holding that findings of fact in contracting officer's decision are not bind­ing on parties at trial).

4

. The contract award also included Amendments to the original Solicitation No. DACA01-98-B­0056-0006. Testimony from Mr. Yang indicated that the Corps issued three Amendments, Tr. at 20, while defendant's pretrial memorandum indi­cates that the Solicitation had six Amendments prior to award of the contract. Def.’s Mem. filed Nov. 1, 2004, at 3. In fact, the Solicitation, Offer and Award of Contract No. DACA01-98-C-0089 contains section 19, "Acknowledgment of Amendments!,]" which lists six Amendments from August 19, 1998 through September 3, 1998. The contract was signed by Ernest E. Walters, Jr., plaintiff's then-Vice President. Amendments 0001 and 0002 addressed pre-pro­posal changes.

5

. The following numbering system applied to the Modifications: Modifications P00001 through P00006 and Modifications R00007 through R00018. Modifications associated with the EC/L Project increased the contract price by $1,111,063.00, to $5,789,163.00.

6

. Modification P00002 extended the contract completion date 90 days; Modification P00003, 22 days; Modification P00006, 8 days; Modifica­tion R00011, 197 days; and Modification R00017, 30 days.

7

. In what served as a possible indicator of a lack of Project cohesiveness, plaintiff employed three Project Managers on the EC/L Project: Roy McCracken, December 1998-March 1999; Ralph L. Poole, Jr., March 1999-October 1999; and John D. ("Jack”) Jesse, October 1999-August 2001.

8

. The pertinent Modifications are, as follows:

P00002: Implemented structural changes and increased contract price by $199,150.00.

P00003: Revised drawings for the EC/L Pro­ject and increased contract price by $85,890.00.

P00005: Addressed alterations in the revised gutter detail, changed the color of the structural standing seam metal roof, and increased contract price by $54,682.00.

P00006: Affected the stucco systems to the exterior wall areas and increased contract price by $167,629.00.

R00011: Compensated plaintiff for extended field overhead costs incurred through January 3, 2001, and increased contract price by $222,563.00.

R00012: Added clerestory bracing and in­creased contract price by $23,843.00.

R00013: Revised the clerestory framing and added drainage pipe throughout the Project and increased contract price by $25,435.00.

R00017: Called for changes to the main entry and the clerestory and increased contract price by $37,083.00.

R00018: Subcontractor impact costs for the 205-day extension of the completion date due to R00006 and R00011 and increased contract by $222,531.00.

9

. "Change Orders” were given both by the Corps to plaintiff, and by plaintiff to its subcontractors. The Corps issued three Change Orders to plain­tiff in the form of drawings. Where necessary, distinction will be made as to which party was responsible for the Change Order under discus­sion.

10

. Change Order No. 1 was not incorporated officially into the contract until Modification P00002 on November 20, 1999.

11

. This count includes thirty-three architectural drawings, eight civil drawings, nineteen structur­al drawings, three mechanical drawings, and nine electrical drawings.

12

. It is unclear as to which QCM Mr. Poole’s letter refers, because plaintiff’s chorus-line of QCMs underwent a change from Ernest Rainwa­ter to Michael Flanagan in April 1999.

13

. Item No. 30 asked the Corps to provide the manufacturer and installer of the fume hoods in the science lab room. Item No. 35 addressed bearing elevations for columns that do not match pedestal requirements. Item Nos. 37-46 con­cerned building glass.

14

. Mr. Bolyard is a construction engineering consultant and president and CEO of McDon­ough Bolyard Peck, Inc. He was certified under Fed.R.Evid. 702 as an expert in Critical Path Method scheduling for construction projects, de­lay analysis for construction projects, construc­tion cost estimating, construction cost analysis, and construction means and methods. Mr. Bol­yard’s hands-on background in scheduling for construction projects is impressive.

15

. The as-planned start and completion dates were scheduled to be July 30, 1999 and August 29, 1999, respectively.

16

. Plaintiff contends that the contract comple­tion date should be modified to August 31, 2001, with the concomitant remission of liquidated damages.

17

. Mr. Bolyard customarily defines a "punch list” as “minor remedial and/or completion activ­ities that are identified during pre-final or final inspections of facilities.” DX 574/82. On the other hand, he interprets plaintiffs notion of a punch list as "miscellaneous completion activi­ties that [plaintiff] anticipated it would have to perform to obtain Beneficial Occupancy.” Id.

18

. The amount that plaintiff sought at trial, $915,872.00, differs from the total amount stated in the complaint. These reductions do not give rise to an inference that plaintiff unilaterally "scrubbed” or took pains to present conserva­tively its claimed damages. Rather, in response to the devastatingly critical analysis of Mr. Bol­yard, plaintiff reduced elements of its claimed damages, and plaintiff adjusted its claim based on the August 30, 2004 report of Michael T. Midgette, its forensic expert. However, Mr. Bol­yard’s final assault at trial overcame plaintiffs proofs. The court makes no findings with re­spect to damages other than the following: The inclusion of facially improper items, such as Mr. Yang’s personal family recreational expenses, de­tracted from the claims, and Mr. Midgette’s anal­ysis suffered because his initial expert report-­hardly short of simply adopting plaintiff's initial claim-included many of these items.

19

. These extensions are based on plaintiff's cal­culation of a 240-day delay in the EC/L Project, 180 days of which plaintiff deemed compensable, 36 excusable, and 24 the responsibility of plain­tiff.

20

. In response to plaintiff's claims of an exces­sive and unreasonable amount of supervision by the Corps, Kevin A. Powell, Florida Area Engi­neer, United States Army Corps of Engineers, Mobile District, testified that he "found no over­zealous inspection [by Mr. Batchelor]. I found a project engineer or inspector who was trying to enforce the terms of the contract." Tr. at 1475-­76.

21

. While they testified to a less-than-stellar work­ing environment, other witnesses presented by plaintiff also did not succeed in establishing the actual cause of the Project's disarray. For exam­ple, Carlton D. Taylor, the contracts and con­struction manager for Industrial Steel, Inc. ("In­dustrial”), plaintiff's steel subcontractor, believed the Corps’s representatives to be "antagonistic people[,]” Tr. at 603, but he failed to mention what Corps representatives he encountered on the Project. Mr. Taylor testified that "Sunshine Construction was fabulous to us, tried to help us in every way," Tr. at 603, but that the Corps was slow to provide answers to RFIs. While this provides insight into Industrial's relationship with the Corps and plaintiff, it does not address appropriately the dynamics between the parties that the Project created, and, like Mr. Jesse’s testimony, does not allow the court to discern that the Corps exceeded its contractual rights. Similarly, John W. Wilde, Jr., president of J.W. Wilde Mechanical, Inc., plaintiff's HVAC and me­chanical subcontractor, testified that plaintiff's supervision was fine, but that the job environ­ment as a whole was "adversarial.” Tr. at 642. Comparatively, defense witness Gregory W. Day­ton, formerly vice-president of JSS Property Pro­fessionals, Inc., plaintiff’s initial subcontractor for metal stud framing, diywall, and stucco, demonstrated the lack of clarity in assigning blame for the Project's chaotic atmosphere when he testified that the Project’s environment was like a hornets' nest, that it "was not a friendly environment,” and that ”[t]here was one in­stance where a couple of superintendents were getting ready to fight." Tr. at 1367. At the same time, he attributed this atmosphere to the Corps’s time demands.

The commonality in the testimony of these witnesses is an inability to trace the disturbance of Project performance and delay to Project com­pletion to excessive demands.

22

. Mr. Yang was bom in Taiwan and came to the United States in the late 1970s, and his direct testimony was taken pursuant to Fed.R.Evid. 611(a). While Mr. Yang’s mastery of the English language was impressive, his testimony was, at times, somewhat difficult to understand. The court made every effort to comprehend fully and completely Mr. Yang’s testimony.

23

. Jeffrey D. Lundy, an auditor on the DCAA's audit of plaintiff's claim, thoroughly explained the DCAA report, which demonstrated that plain­tiff exaggerated and miscalculated claims, failed to provide documentation for others, and, in general, provided an inaccurate accounting rec­ord.

24

. A window schedule would have assisted Mr. Thomas in reading the plans; such a schedule is often, although not always, included in plans. Tr. at 341.

25

. Both Mr. Bolyard and Mr. Midgette testified to this claim, but discussion of their testimony is unnecessary, as the claim fails on its facts.

26

. See supra note 25 for comment on expert testimony.

27

. Mr. Bolyard explained that although curves are shown on drawing C-3.1, partial elevation drawings show them as horizontal flat lines, thereby giving the view of the surface as a straightened, flat detail. Because of the perspec­tive, and because it is a curved wall, a column thus is represented by three straight lines.

28

. FF denotes "Finished Floor." These nota­tions appeared in meters, as the contract speci­fied that the metric system would control the units of measurement.

29

. Significantly, with respect to this and other claims, Mr. Bolyard was not testifying based on his expertise; instead, he was interpreting the contract drawings as a reasonable contractor would be expected to do. Throughout his testi­mony, the court found that Mr. Bolyard greatly assisted in the explanation and understanding of how the EC/L Project actually was constructed.

30

. As-built drawings are prepared to show any deviation from the as-planned drawings, and are used for future reference in the maintenance of the subject of the drawings.

31

. The Eichleay formula is used to "equitably determine allocation of unabsorbed overhead to allow fair compensation of a contractor for gov­ernment delay.” Wickham Contracting Co., Inc. v. Fischer, 12 F.3d 1574, 1578 (Fed.Cir.1994); see PJ. Dick Inc. v. Principi, 324 F.3d 1364, 1370 (Fed.Cir.2003). The formula, set forth in Ei­chleay Corp., ASBCA No. 5183, 60-2 B.C.A. (CCH) 112688, 1960 WL 538 (1960), multiplies the daily contract overhead by the number of days delayed to determine the amount recovera­ble. The daily contract overhead is determined by multiplying the allocable overhead by the number of days of performance. The allocable overhead is determined by dividing the contract billings by the total billings for the contract peri­od, and then multiplying the result by the total overhead for the contract period. Nicon, Inc. v. United States, 331 F.3d 878, 883 (Fed.Cir.2003). In order to utilize the Eichleay formula, a con­tractor "must show that a government-imposed delay occurred, that the contractor was required to stand by during the delay, and that while standing by it was unable to take on additional work.” Sauer Inc. v. Danzig, 224 F.3d 1340, 1348 (Fed.Cir.2000).

32

. Mr. Midgette’s approach involved breaking the Project into "fragnets.” A "fragnet" is a "fragment of the network analysis system!,]" Tr. at 832, and is a scheduling tool that modifies the contract schedule so as to determine the impact of a change to a contract’s completion date. As a practical matter, a scheduling change is a part of the scope of work and should be tracked for purposes of cost, delay, and future impacts, and the fragnet provides this tracking. Mr. Midgette could not demonstrate that this approach is a recognized method for CPM analysis.

33

. Mr. Batchelor’s QARs noted a variety of prob­lems in plaintiff's steel erection procedure during this time, including the steel erection crew "pullfing] out" in protest of the use of leveling nuts; plaintiff’s failure to multitask; the steel erection crew not being the proper size for the job; and poor workmanship that required plain­tiff to re-do parts of the construction.

34

. Defendant arrived at this daily rate by divid­ing the sum of the monthly field overhead ex­penses from January 2001 through August 2001, $132,643.00, as determined in Mr. Lundy's DCAA Audit, by the 240 days of this time period. The court agrees with Mr. Lundy's rejection of claimed costs and adjustment of the claimed rate for field overhead.

35

. Mr. Bolyard warned about the use of these factors, found in the MCAA’s Bulletin No. 58, and quoted that Bulletin in his expert report, which cautioned that

"[t]he material contained in this manual is intended to assist you in planning and is not meant to provide absolute costs nor percent­ages which would be incurred. Each project, locale, situation is unique and variances will occur even within the same jurisdiction.

These factors listed are intended to serve as a reference only. Individual cases could prove to be too high or too low.”

36

. Mr. Bolyard determined this value of loss of productivity by taking the total labor costs ex­pended, including plaintiff’s labor force with markup and its labor agents, and subtracting the following items: planned labor, plaintiff’s in­creased unit cost of labor, plaintiff’s work for others, missing labor from plaintiff's bid, in­creased unit cost due to labor agents, cost attrib­uted to plaintiff’s welder, labor cost for defaulted subcontracts, home office and field overhead per­sonnel, direct labor costs in plaintiff’s claim, and labor for contract modification. Although defen­dant conceded this amount, Mr. Bolyard noted that plaintiff self-imposed a labor loss of produc­tivity cost in the concrete foundation and slab work that Mr. Bolyard determined to be $30,351.00 through July 24, 1999. If accounted for, this would reduce the labor loss of productiv­ity cost to $10,601.00. In any event, per Mr. Bolyard’s analysis, the maximum plaintiff could recover for labor loss of productivity, based on all of the days that plaintiff regards as affected, would be $40,952.00.

94-2 BCA P 26872 (A.S.B.C.A.), ASBCA No. 28687, ASBCA No. 24578, ASBCA No. 25838, 1994 WL 130618

ASBCA

Appeals of Santa Fe Engineers, Inc.

Under Contract No. N62474-75-C-6276
April 7, 1994

APPEARANCE FOR THE APPELLANT:
Walter A.I. Wilson, Esq.
Kilcullen, Wilson and Kilcullen
Washington, D.C.
APPEARANCES FOR THE GOVERNMENT:
Arthur B. Hildebrandt, Esq.
Navy Chief Trial Attorney
Evadne Sanichas, Esq.
Trial Attorney
Office of General Counsel
Western Division
San Bruno, CA

OPINION BY ADMINISTRATIVE JUDGE COLDREN

This decision involves appellant's 58 claims for delay and inefficiency as well as its 22 additional claims for inefficiency only which were a substantial portion of its numerous claims seeking a total of $7,450,385 (originally $18,971,994) plus a time extension of 408 days from the Government. All of these claims concern a hospital being constructed at Bremerton, Washington, appealed under the Contract Disputes Act from the failure of the contracting officer to issue a timely final decision. Forty-nine of the 58 claims for delay and inefficiency involve unilateral Government change orders, 3 involve constructive changes claims, and 6 involve bilateral contract modifications providing for time extensions. Resolution of these claims will also determine whether the Government's assessment of liquidated damages in the amount of $380,000 for failing to complete the contract on time was proper.

Appellant's constructive changes claims involving structural steel (ASBCA No. 24469, 92-1 BCA ¶24,665, reconsid. denied, 92-2 BCA ¶24,925, aff'd, Santa Fe Engineers, Inc. v. Admiral Frank B. Kelso, Acting Secretary of the Navy, Fed. Cir. Nos. 92-1378 et. al., 8 February 1994) and relites (ASBCA No. 24844, 92-3 BCA 25,166, aff'd, Santa Fe Engineers, Inc. v. Admiral Frank B. Kelso, Acting Secretary of the Navy, Fed. Cir. Nos. 92-1378 et. al., 8 February 1994) were previously determined not to be valid, while the precast concrete/structural steel tolerance claim was held in part to be valid (ASBCA No. 45228, 93-1 BCA ¶ 25,555, aff'd, Santa Fe Engineers, Inc. v. Admiral Frank B. Kelso, Acting Secretary of the Navy, Fed. Cir. Nos. 92-1378 et. al., 8 February 1994). However, we did not determine whether the precast concrete/structural steel tolerance change caused any delay and/or inefficiency to the project as a whole.

In addition, two of the 49 unilateral Government change orders had major disputed appellant claims associated with them as a part of appellant's delay and inefficiency claims. The claims for flush mounted clocks (ASBCA No. 44941, 93-1 BCA ¶25,322, aff'd, Santa Fe Engineers, Inc. v. Admiral Frank B. Kelso, Acting Secretary of the Navy, Fed. Cir. Nos. 92-1378 et. al., 8 February 1994) and for providing vibration isolation of the medical gas compressor (ASBCA No. 44863, 93-1 BCA ¶25,297, aff'd, Santa Fe Engineers, Inc. v. Admiral Frank B. Kelso, Acting Secretary of the Navy, Fed. Cir. Nos. 92-1378 et. al., 8 February 1994) were held not to be valid.

Of the inefficiency only claims, nineteen involved unilateral Government change orders and 3 were constructive change claims. One of the unilateral change orders involved pipe cutting with only a portion being a disputed appellant claim. We have resolved this remaining claim denying all but a small portion (ASBCA No. 23897, 92-1 BCA ¶24,495). In addition, the precast concrete/structural steel tolerance constructive change claim described above appears to have caused inefficiencies. Both of these changes are remanded to the parties for a determination of the quantum including inefficiency directly caused by these changes. The three inefficiency only alleged constructive change claims involve the installation of tile wainscot, insulation of the kitchen vents, and lighting for the mechanical level. We reserve decision on these three claims which will be decided at a later date.

The parties have informally settled the direct costs for all of the delay and inefficiency change claims except those involving constructive change claims which we either (a) have already decided and remanded for quantum or (b) reserved for future decision. The parties appear to be in agreement that this informal settlement of direct costs involves all of the inefficiency costs directly caused by the change orders. The Government contends that these agreements covered all of the inefficiency costs caused by the unilateral change orders. Appellant correctly points out that none of these informal agreements involve indirect inefficiency costs and that would appear to be one of the reasons that unilateral change orders were issued by the contracting officer rather than bilateral ones signed by both parties. Thus, the only issue before us in this decision is whether the unilateral change orders caused any indirect inefficiencies.

These delay and inefficiency claims which were consolidated for hearing with numerous other claims under Docket Nos. 25838 and 28687 are being separately decided. We are also deciding appellant's direct cost only claim for an equitable adjustment in Docket No. 24578 for being required by the contracting officer to create multiple revisions of the contract network diagram and resulting CPM schedule report (CPM schedule) in attempts to make that schedule predict the contract completion date. Appellant argues this was unfair because the contract completion date should have been extended due to constructive changes and change orders. The Government disputes this claim on the ground that completion of performance by the contract completion date was required by the contract. Numerous other direct cost claims remain and are not a part of this decision. These claims will be decided at a later date and assigned separate docket numbers. The hearing in these appeals was limited to entitlement.

Due to the complexities of the numerous claims and the vast amount of evidentiary materials involved in the numerous disputes before this Board, the parties were ordered to complete a compulsory admissions process to limit the scope of the hearing. Each party was required to file detailed findings of fact with citations to the evidence it intended to introduce in support of that finding. The opposing party was required to either admit or controvert these proposed findings with proposed modifications to cure its objections, if possible. Any opposition or proposed modifications had to be supported with citations to evidence the opposing party intended to introduce. Any proposed finding not so controverted could be deemed binding on the parties by the Board.

It is undisputed that appellant substantially completed the contract 408 days after the contract completion date. The parties bilaterally have agreed to a 13 day time extension and the Government has issued unilateral contract modifications extending the contract completion date by 243 days. Appellant seeks an additional 152 days to cover the 408 days of alleged delay. It seeks compensation for 351 days, admitting that 55 days of delay were concurrent with appellant responsible delays resulting from the fireproofing of structural steel and 2 days for strikes. It also requests a time extension for all 408 days or 152 additional days beyond that granted by the contracting officer.

Both parties rely on experts to establish whether there was delay and inefficiency, and if so, which party caused that delay and/or inefficiency. They also agree that the contract requires the use of the critical path method (CPM) to determine contract delays. It also appears to be undisputed that the CPM schedule had to be revised during the fireproofing of the structural steel primarily to reflect appellant's resequencing off work activities due to its problems with that fireproofing.

Appellant's expert appears to rely on the CPM method utilizing different schedules before and after fireproofing to allocate the 408 days of alleged delay between various phases of the contract but not to determine what caused these delays. He claims that the CPM method cannot be used to determine causation because change orders were not entered into the CPM schedule before the changed work was performed but that the CPM schedule was accurate to perform the allocation of the 408 days of alleged delay. He also admitted that appellant's records did not include information as to when the changed work was performed for many of appellant's delay and/or inefficiency claims.

The Government and its expert disagree with appellant and its expert that the CPM can be accurate for one purpose but not the other, claiming that the critical path is either accurate or not. In addition, the parties disagree as to why the change orders were not included in a CPM analysis with the Government arguing that appellant failed to provide any information so that each change could be subjected to a CPM analysis and appellant responding that the Government refused to include any such information until the nature and affect of the changes were negotiated.

Appellant's expert determined the causes of the delays through an analysis of an “as built” chart plotted from various daily reports of the parties along with a study of appellant's issues files. The Government argued this analysis violated the contract requirement that a CPM analysis be used to measure contract delays. It pointed out that the materials utilized by appellant's expert in preparing the “as built” as well as those he utilized in evaluating appellant's issues files were not included in the Board's record so that appellant's analysis could be verified. It claimed that appellant's expert's method was really a total delay method of measuring the delay.

As to the inefficiency claims, appellant's expert relied on the fact that delay issues almost always create impact or inefficiency and on “cloud charts” which are markings placed on the contract floor plans showing the geographic location of the many changes involved in this contract. The Government responded by pointing out that the cloud charts do not indicate the timing of any of the changes and without charts showing where and when changed work was performed it cannot be determined what impact the various changes had on the contract effort.

FINDINGS OF FACT

  A. The Contract in General

1. Appellant, Santa Fe Engineers, Inc. (hereinafter “SFE” or “Santa Fe”) was awarded Contract No. 62474-75-C-6276, in the amount of $23,737,000.00 on 4 June 1976 (Finding 20A-Admitted). It was a competitively bid, fixed price contract for the construction of a hospital and support facilities at Bremerton, Washington (Finding 1A-Admitted).

2. The contract was for the construction of a new 8 story hospital, renovation of two existing warehouse buildings, related site work, as well as other work. The IFB described the hospital building as an 8 story structural steel frame building with composite metal-concrete floor and roof slabs, with exterior walls of cast-in-place and precast concrete panels, and aluminum window-walls (Finding 4A-Admitted).

3. The contract contained Standard Form 23-A, January, 1975 Edition, including, “Changes (1968 FEB)”and “Disputes (1964 JUN)” clauses. The changes clause states among other things:

If any change under this clause causes an increase or decrease in the Contractor's cost of, or the time required for, the performance of any part of the work under this contract, whether or not changed by any order, an equitable adjustment shall be made and the contract modified in writing accordingly.

(Finding K-3R-Admitted).

4. The original contract completion date was 9 December 1978 (Finding 4800R-Admitted). Beneficial occupancy occurred on 21 January 1980 which was 408 days after the original contract completion date (Finding 4800R-Admitted).

5. During performance, 102 contract modifications were issued having a total value of $2,896,824 which was 12.74% of the contract price (Finding 4804R-Admitted). In some of these modifications, the Government granted a total of 256 calendar days of time extensions, revising the contract completion date to 22 August 1979 (Finding 4804R-Admitted). These were as follows:

(Finding 24A-Admitted; R4, tab 1).

6. Appellant's position is that it is entitled to a time extension for the entire 408 calendar days of delay beyond the original contract completion date (152 days additional to that already granted) and that 351 of those days are compensable (Finding 25A-Admitted). However, appellant's position as to what caused the 408 days of delay differs significantly from the Government's as will be described below in findings 7 through 15.

B. Unilateral Change Orders

7. Unilateral change orders issued by the contracting officer were given change order request or COR numbers and were organized into COR groups. COR Group 1 included COR Nos. 19, 31, 53, 86, 92, and 100 (Finding N35-Disputed: undisputed portion). COR Group 2 included COR Nos. 87, 105, 109, 111, 123, 125, 127, 132, 140, 148, 152 (Finding N34-Disputed: undisputed portion). Unilateral Contract Modification P00071 ordered appellant to perform the work in COR Groups 1 and 2 and granted appellant 66 calendar days of delay for these COR groups and Unilateral Contract Modification P00102 added 14 days (R4, tab 1). Appellant's delay claim did not include COR Nos. 19, 53, 87, 92, 105, 123, 127, 132, 140, and 152 (Warner Written Testimony “Warner WT” at 109-12).

8. Unilateral Contract Modification P00071 indicated at pages 6 and 8 that 66 calendar days of delay were caused by COR Group 1 with 63 days being compensable and the other 3 days being concurrent delay and, therefore, non-compensable. It also awarded appellant $325,170 for direct costs as well as extended overhead for delay caused by COR Group 1, $122,958 for direct costs of COR Group 2, and $24,338 for impact such as inefficiencies and stacking of trades due to both COR groups. It found no delay due to COR Group 2. Unilateral Contract Modification P00102, in implementing the final decision of the contracting officer, did not indicate whether any of the 14 additional days of delay were compensable, increased the equitable adjustment by $63,878, but without identifying whether it included monies for extended overhead.

9. COR Group 3 included COR Nos. 119, 122, 150, 159, 163, 164, 165, 166, 167, 169, 171, 172, 175, 183, 191, 199, and 278 (Finding N54-Admitted). Unilateral Contract Modification P00072 ordered appellant to perform the work in COR Group 3 and granted appellant 86 calendar days of delay for this COR work and Unilateral Contract Modification P00102 added 18 days (R4, tab 1). Appellant's delay claim did not include COR Nos. 119, 122, 150, 163, 164, 167, 172, 175, 183, 191, and 278 (Warner WT at 109-12). Unilateral Contract Modification P00072 indicated at page 7 that all 86 days of delay caused by COR Group 3 were compensable and awarded appellant $512,854 for direct costs, extended overhead for delay, and impact such as labor inefficiencies and stacking of trades. Unilateral Contract Modification P00102 increased the equitable adjustment by $51,101, but did not indicate whether any of the 18 additional days of delay were compensable or identify whether the equitable adjustment included monies for extended overhead.

10. COR Group 4 included COR Nos. 144, 177, 184, 187, 196, 200, and 205 (Finding N66-Admitted). Unilateral Contract Modification P00075 ordered appellant to perform the work in COR Group 4. Unilateral Contract Modification P00102 granted appellant 7 calendar days of delay for this COR work, awarded appellant an equitable adjustment of $20,348, but did not indicate whether any of the 7 days was compensable or identify whether any portion of the equitable adjustment was for extended overhead (R4, tab 1). Appellant's delay claim did not include COR Nos. 144, 177, 187, 196, and 205 (Warner WT at 109-12).

11. COR Group 5 included COR Nos. 65, 129, 189, 203, 204, 207, 208, 212, 216, and 230 (Finding N72-Admitted). Unilateral Contract Modification P00076 ordered appellant to perform the work in COR Group 5. Unilateral Contract Modification P00102 granted appellant 27 calendar days of delay for this COR work, awarded appellant an equitable adjustment of $102,155, but did not indicate whether any of the 27 days was compensable or identify whether any portion of the equitable adjustment was for extended overhead (R4, tab 1). Appellant's delay claim did not include COR Nos. 204 and 230 (Warner WT at 109-12).

12. COR Group 6 included COR Nos. 155, 158, 193, 213, 220, 224, 227, 231, 232, 245, 277, and 295 (Finding N79-Admitted). Unilateral Contract Modification P00077 ordered appellant to perform the work in COR Group 6. Unilateral Contract Modification P00102 granted appellant 7 calendar days of delay for this COR work, awarded appellant an equitable adjustment of $25,778, but did not indicate whether any of the 7 days was compensable or identify whether any portion of the equitable adjustment was for extended overhead (R4, tab 1). Appellant's delay claim did not include COR Nos. 158, 213, 227, 231, 232, 245, and 277 (Warner WT at 109-12).

13. COR Group 7 included COR Nos. 162, 225, 238, 242, 243, 244, 246, 248, 250, and 253 (Finding N88-Admitted). Unilateral Contract Modification P00079 ordered appellant to perform the work in COR Group 7. Unilateral Contract Modification P00102 granted appellant 2 calendar days of delay for this COR work, awarded appellant an equitable adjustment of $10,311, but did not indicate whether any of the 2 days was compensable or identify whether any portion of the equitable adjustment was for extended overhead (R4, tab 1). Appellant's delay claim did not include COR Nos. 204 and 230 (Warner WT at 109-12).

14. COR Group 8 included COR Nos. 133, 153, 176, 202, 211, 218, 226, 228, 234, 239, 240, 247, 249, 258, 259, 260, 281, and 283 (Finding N98-Admitted). Unilateral Contract Modification P00083 ordered appellant to perform the work in COR Group 8. Unilateral Contract Modification P00102 granted appellant 7 calendar days of delay for this COR work, awarded appellant an equitable adjustment of $24,323, but did not indicate whether any of the 7 days was compensable or identify whether any portion of the equitable adjustment was for extended overhead (R4, tab 1). Appellant's delay claim did not include COR Nos. 133, 153, 211, 218, 228, 240, 249, 258, and 283 (Warner WT at 109-12).

15. COR Group 10 included COR Nos. 257, 262, 267, 268, 272, 273, 274, 275, 276, 284, 289, 292, 293, 296, 297, and 299 (Finding N113-Admitted). Unilateral Contract Modification P00085 ordered appellant to perform the work in COR Group 10. Unilateral Contract Modification P00102 granted appellant 2 calendar days of delay for this COR work, awarded appellant an equitable adjustment of $9,729, but did not indicate whether any of the 2 days was compensable or identify whether any portion of the equitable adjustment was for extended overhead (R4, tab 1). Appellant's delay claim did not include COR Nos. 257, 262, 272, 273, 274, 284, 289, 293, 297, and 299 (Warner WT at 109-12).

16. Unilateral Contract Modification P00102 granted appellant 7 calendar days of delay for weather delays (R4, tab 1). These weather delays were not included as a part of appellant's expert's delay analysis for 408 days of delay (Warner WT at 109-12). Unilateral Contract Modification P00102 also awarded appellant $181,360 for labor escalation and $39,396 for material escalation.

C. Contract Specifications

17. Section 1F of the contract specifications is entitled “Contractor Prepared Network Analysis System” and provides in pertinent part as follows:

1. CONTRACTOR PREPARED NETWORK ANALYSIS SYSTEM: The practicable schedule (Progress Chart) prepared by the Contractor, pursuant to Additional General Provision 62(a) of this contract, shall consist of a network diagram. . . . The Contractor's responsibility will include [the] creating of the network, execution of the plan described by the network, participation in progress meetings, and submission of progress and change data, as hereinafter set forth.

1.1 Network Form: The Contractor shall develop a plan in network form demonstrating complete fulfillment of all applicable contract requirements, keeping the network up-to-date, and shall utilize the critical path method in planning, coordinating and performing the work under this contract (including all activities of subcontractors, equipment vendors, and suppliers). The network diagram shall show the order and interdependence of activities planned by the Contractor, shall be drafted to show a continuous flow from left to right, and top to bottom, with no arrows from right to left, and shall provide a logical sequence of the work to be accomplished. . . . The following information shall be provided on an Activity Transaction input form (load sheet) for each activity of the network diagram: preceding and following event numbers, description of activity, cost, where applicable, for the activity, activity duration in working days, a five alphabet (or less) code indicative of the party responsible for the accomplishment of the activity, and a four alphabet (or less) code indicative of the area of the project in which the work will be performed. An activity description shall contain a maximum of 28 alphanumeric characters, and each activity description shall be sufficient to identify the work without reference to any other activity.

* * *

1.3 Submission of network diagrams shall be as follows:

* * *

(b) The complete network diagram, in accordance with paragraphs 1.1 and 1.2 above shall be submitted for approval within 60 calendar days after receipt of notice to proceed.

* * *

(d) The approved network diagram shall then be the schedule to be used by the Contractor for planning, organizing and directing the work, reporting progress, and requesting payment for work accomplished.

* * *

1.4 Revisions: Revisions to the network shall be made by the Contractor as necessary to keep it current. Redrawing of all or affected portions of the diagram will be required only when changes of a major nature are made. A change may be considered of a major nature if the estimated time required or actually used for an activity or the logic of [sic] sequence of activities is varied from the original plan to a degree that there is a reasonable doubt as to the effect on the contract completion date, or dates. Changes which affect activities with adequate slack time shall be considered as minor changes, except that an accumulation of minor changes may be considered a major change when their cumulative effect might affect the contract completion date. Revisions which affect the network logic or items on the critical path will be subject to the approval of the OICC.

1.5 Modifications: When modifications in the work are necessary the contractor shall submit revisions to the network reflecting the results of the modifications. Should the Contractor not provide network revisions to reflect modifications in the work within five (5) working days of the requirements for the modifications, the OICC, to avoid delay and additional expense, has the option of providing suggested changes. The Contractor shall use the suggested logic and/or duration changes in updating network diagrams in subsequent required submittals; provided, however, that if the Contractor has objection to any of the suggested logic and/or activity duration time changes, he shall advise the OICC promptly in writing of such objections, fully supported by his own counterplan; and provided further that if the Contractor does not submit such written objections and counterplans [sic] within thirty (30) calendar days after the date of the notice to proceed with the modifications, the Contractor will be deemed to have concurred in the OICC's suggested logic/duration time changes, which changes then will be the basis for any required equitable adjustment of the time for performance of the work.

1.6 Time Adjustments: Float or slack is defined as the amount of time between the early start date and the late start date, or the early finish date and the late finish date of any of the activities in the CPM Schedule. Float or slack is not time for the exclusive use or benefit of either the Government or the Contractor. Extensions of time for performance required under the Contract General Provisions entitled “Changes”, “Differing Site Conditions”, “Termination for Default - Damages for delay, Time Extensions”, or “Suspension of Work” will be granted only to the extent that equitable time adjustments for the activity or activities affected exceed the total float or slack along the channels involved.

* * *

2. REPORTS: The Government, upon receipt of acceptable networks, will produce, at no expense to the Contractor, CPM Schedules which will be provided the Contractor. Should the Contractor wish to change his networks as a result of schedule analysis, the Government will, at no cost to the Contractor, make one additional run and reproduced CPM Schedules which will be provided to the Contractor. The Government will produce, utilizing only Contractor data as submitted on the network diagram, the following CPM reports:

(a) By the preceding number from lowest to highest, and then in order of the following event number (I-J Sequence).

(b) By the total amount of float (slack), then in order of early start. (Total Float Sequence).

(c) Critical activity listing by reporting period (Hot List).

Reports will be produced initially and after each monthly update, as required by paragraph 3 below.

* * *

3. PROGRESS PAYMENTS: Pursuant to Clauses 7, 62, and 77, of the General Provisions, progress payments will be made on the basis of an updated CPM Schedule, using the accumulated costs for completed and partially completed activities as agreed to by Contractor and Government representatives. Initially, and monthly thereafter, the Government will produce a projected report of scheduled activities to be started, in process, or completed during the upcoming reporting period (Look-Ahead Report). At the end of the reporting period, the Contractor and Government Representatives shall jointly make entries on the preceding CPM Schedule (Look Ahead Report) to show actual progress to identify those activities started and those completed during the previous period, to show the estimated time required to complete each activity started but yet not completed, to indicate the percentage of the activity's cost payable to the Contractor, and to reflect any changes in the arrow diagram. The Contractor shall include in the “Remarks” section of the update report a description of problem areas, current and anticipated, delaying factors and their impact, and an explanation of corrective actions taken or proposed. The Government will produce from the marked up CPM Schedule at no expense to the Contractor, an updated schedule and status report for the project and will use the accumulated cost for completed and partially completed activities as the basis for making monthly payment to the Contractor, pursuant to Clauses 7, 62, and 77 of the General Provisions.

(R4, tab 1).

D. The Critical Path Method (CPM) of Scheduling

18. The Critical Path Method (CPM) is a planning technique used to determine how long a project will take to complete and to identify the most important items that need to be accomplished in order to meet the project deadline (O‘Brien Written Testimony (WT) at 30). It is a written description of the manner in which a contractor plans to complete the project on time (id.). It tells the contractor in advance the sequence, duration, and parameters of dates within which specific work must be performed in order to ensure timely completion of the project (O‘Brien WT at 38). It can be used to monitor progress by measuring actual job accomplishment against the schedule as a baseline (O‘Brien WT at 30).

19. The CPM is based upon a graphic project model called a network which depicts all activities that must be carried out with their mutual time dependencies as well as durations in a diagram form (Finding 4773R-Admitted; O‘Brien WT at 31). An activity is the basic building block of the network and is defined as a single work step that has a recognizable beginning and end, and required times for its accomplishment (Finding 4774R-Admitted; O‘Brien WT at 32). Each activity is linked to another through its interdependency or logic (O‘Brien WT at 32, 33). The logic of a network refers to the determined order in which activities are to be performed with the commencement of some activities logically dependent or a restraint on the completion of others (Finding 4776R-Admitted; O‘Brien WT at 34). However, some activities are independent of others and can proceed concurrently (O‘Brien WT at 33). The CPM network literally builds the project on paper, defining the roles and interrelationships of the activities (O‘Brien WT at 31).

20. Four limiting times for each network activity are calculated. The early start of an activity is the earliest date at which it can possibly start, allowing for the times required to complete the preceding activities. The early finish of an activity is the earliest possible date at which it can be completed, and is determined by adding the activity's duration to its early start date. The late finish of an activity is the very latest date at which it can finish and still allow the project to be completed by the designated date. The late start of an activity is the latest possible date that it can be started if the project completion date is to be met. It is calculated by subtracting the activity's duration from its latest finish date. (Finding 4780R-Admitted; O‘Brien WT at 36)

21. The “float” of an activity in CPM scheduling is determined by subtracting its early start date from its late start date, although subtracting the early finish from the late finish will yield identical results (Finding 4781-Disputed: undisputed portion; O‘Brien WT at 39). The path or paths of activities through the network with zero float is known as the “critical path” (O‘Brien WT at 39). Any activity with zero float is a “critical activity” with the result that any delay in its finish dates prolongs project completion by the same amount of time (O‘Brien WT at 39; Finding 4781-Disputed: undisputed portion).

22. The CPM schedule must be revised when work is added and deleted, completed, and/or changes in logic are made (O‘Brien WT at 41). It must also be updated monthly to reflect work completed as well as the contractor's plans for completing the remaining work including in particular any significant changes in logic or duration (O‘Brien WT at 41, 42). Each time updating information is entered into the network a new computation must be made because the new information may cause the critical path to shift (O‘Brien WT at 41, 42). A CPM schedule that does not reflect what work is actually being accomplished in the field does not accurately identify the project's critical path and/or activities (O‘Brien WT at 42).

E. The Initial Contract CPM Schedule

23. The original CPM schedule for this contract required a sequence of work typical for complex buildings of the trades going up the building one after the other like a train installing the various layers of materials (tr. 11/94; 35/76-77; Warner Written Testimony (WT) at 38). Each individual trade occupies a space by itself with other trades preceding and following (35/76-77). It permits each trade to operate without interference from the others, with the prestaging of materials and equipment to perform that work and their removal from that space after completion (tr. 35/67-69). Multiple trades utilizing the same space create problems over utilization of temporary power as well as the interference problems previously described (tr. 35/77, 106).

24. Other than the generalities described in finding 23, no witness outlined in detail appellant's plan to construct the hospital as contained in its 4 June 1976 CPM schedule. Our independent analysis of that CPM schedule indicates the floors or levels of the hospital were divided into 8 areas which were labelled from A through H (exh. G-10,002). Areas A through D were contained on the low rise portion which had just 3 floors or levels 2 through 4 (id.). Areas E through H was the high rise or tower portion which had a service level at the bottom, then four floors or levels 1 through 4, then a mechanical level in the middle where the mechanical equipment was located, and three floors on top or levels 5 through 7 (id.). The CPM construction plan was to commence with the low rise portion and then move to the high rise or tower portion (id.). For each floor of the low rise, first the structural steel was erected, then the concrete floor was poured area by area commencing with Area A and ending with Area D (id.). After all of the concrete floors for the low rise were poured, fireproofing of the structural steel was planned to be completed on a floor by floor basis beginning at the bottom with level 2 and completing with level 4 at the top (id.).

25. The original CPM construction plan for the high rise portion of the hospital differed from that of the low rise (exh. G-10,002; finding 22). The high rise was to be built area by area from the service level to 7th level commencing with Area E and finishing with Area H (exh. G-10,002). The plan for each area was the structural steel for that area to be erected level by level starting at the bottom and finishing at the top (id.). The concrete floor for each level except the service level was then poured again starting at the bottom and completing at the top (id.). After all floors for an area were poured except for the floor slab for the service level, fireproofing of the structural steel for that area on a floor by floor basis beginning at the service level and finishing with level 7 at the top was planned to be completed (id.). Under the CPM plan, the late finish date for completion of fireproofing of the low rise portion of the building was 10 February 1977 while the late finish date for the erection of steel of the level 6 of area G of the high rise portion was 11 February 1977 (id.). In addition, structural steel erection was not planned to be completed in later areas of the high rise when fireproofing in the first area of the high rise was to have been completed (id.). Thus, the plan had the various trades following after each other as soon as the trade preceding it had completed its work (id.). Appellant's delay expert described in a general way progress up the building in a stair step manner area by area (Warner Written Testimony (WT) at 38).

26. No witness testified in detail as to whether appellant followed the sequences described in detail in findings 24 and 25. In May 1977, appellant changed its plan for constructing the building. Other than general testimony that appellant poured the concrete for the mechanical level out of sequence, that mechanical and electrical rough in were sequenced ahead of fireproofing of structural steel, and that as many floors as were available were worked together rather than in sequence, no testimony was presented as to the details of this revised plan. In addition, no evidence as to what sequences actually were followed was included because appellant's as built is not detailed enough to break down each level of the hospital into areas as was appellant's original plan for building the hospital (exh. A-440; G-10,002).

F. Structural Steel

27. Under the original CPM, the erection of structural steel was scheduled to have a late start date of 1 October 1976, and a late finish date of 22 March 1977 (exh. G-10,002 at 7, 33; Findings FT-66R-Disputed: as amended by appellant; FT-75R-Disputed: undisputed portion; FT-76R-Disputed: undisputed portion; see Finding 67R-Disputed). Appellant's structural steel subcontractor had a schedule that indicated it would erect the structural steel over the period from 16 September 1976 to 20 January 1977 (Findings 1663A-Admitted & 1664A-Admitted).

28. Appellant's structural steel subcontractor commenced the erection of structural steel on 2 November 1976 which is 32 days later than the late start date of the initial contract CPM (Finding 1781A-Admitted; Finding FT-189R-Disputed: undisputed portion; Warner WT at 127, 129; tr. 26/96, 155-56; 27/94-95, 100-01; 34/8). No erection occurred during the period from 29 November 1976 to 3 December 1976 (Undisputed portions of Findings 1783A & FT-71R; tr. 27/96-98). Appellant's subcontractor completed the erection in mid February 1977 and removed its crane (Finding 1794A-Disputed; tr. 21/148-49). It did not complete welding and bolting the erected structural steel together until 15 April 1977 (Finding 1794A-Disputed; Finding FT-67R-Disputed; tr. 21/149). Normally, the scheduled date for erection would include bolting and welding which would take about 2 weeks after the erection (Finding FT-112R-Admitted).

29. Appellant's delay expert took the position that appellant was disrupted 16 days during the erection of the structural steel (Warner WT at 127, 129; tr. 27/95-98; 34/9-10). However, he was unable to determine when any of these disruptions occurred or point to any convincing evidence of them from the job records (tr. 33/51-52).

30. Appellant's claim that the structural steel contract drawings were defective was denied by this Board in our decision No. 24469, 92-1 BCA ¶24, 665,reconsid. denied, 92-2 BCA ¶24,925, aff'd, Santa Fe Engineers, Inc. v. Admiral Frank B. Kelso, Acting Secretary of the Navy, Fed. Cir. Nos. 92-1378 et. al., 8 February 1994. Thus, any delays to the commencement, performance, and completion of the structural steel due to these problems are not the responsibility of the Government.

G. Concrete Floors

31. Under appellant's original CPM schedule dated 4 June 1976, the early and late start date was 21 October 1976 and the early and late finish date was 25 October 1976 for the pouring of the concrete floor at area A of level 2 of the low rise portion of the hospital (exh. G-10,002 at 12). This CPM had an early start date of 24 March 1977, a late start date of 18 April 1977, an early finish date of 28 March 1977, and a late finish date of 20 April 1977 for the pouring of the roof slab at area H of the high rise portion of the hospital (exh. G-10,002 at 38). It also had an early start date of 16 March 1977, a late start date of 18 April 1977, an early finish date of 1 April 1977, and a late finish date of 4 May 1977 for the forming and pouring of the concrete footings and pads for the mechanical equipment at area H of the mechanical level of the high rise portion of the hospital (exh. G-10,002 at 36).

32. No evidence was presented as to whether appellant followed its 4 June 1976 CPM schedule in pouring the concrete floors from the bottom up to the roof but in sequential sections with the low rise being the first section and the four areas of the high rise being the other sections, each being poured in its turn (tr. 37/147-48). Compare finding 24.

33. Sleeves for the plumbing lines to be connected to water closets, wash bowels, lavatories, urinals, and other mechanical fixtures should have been installed prior to the concrete floors being poured so that there would be holes in the floors for these lines (tr. 2/121, 128; 15/157). However, the locations for some of these mechanical fixtures were not depicted on the contract drawings (tr. 15/150). Appellant was required to issue a request for information for each hospital room where there were missing dimensions before these dimensions would be provided by the Government (tr. 2/123-25; 15/152).

34. Over the period from 29 September 1976 to 3 January 1977, appellant's mechanical subcontractor requested dimensional information for the mechanical fixtures from appellant (Admitted Findings 1808A to 1809A, 1811A, 1812A, 1814A to 1817A; undisputed portion of Finding 1810A). Appellant forwarded these requests for dimensions to the Government over the period of 19 October 1976 to 31 December 1976 (Findings 1809A-Admitted; 1813A-Admitted; 1832R-Disputed: undisputed portion; Finding 1933R-Admitted; 1834R-Admitted; 1837R-Admitted to 1839R-Admitted).

35. The parties do not appear to dispute that appellant's requests for dimensional information were answered (Findings 1830R-Admitted; 1831R-Admitted; 1835R-Disputed: undisputed portion; 1836R-Admitted; 1840R-Disputed: undisputed portion; 1842R-Admitted to 1845R-Admitted; 1849R-Admitted). The dispute concerns whether these answers were inadequate or tardy. The Government admits that its responses for 37 locations were either non-responsive, inadequate, or tardy and that appellant was entitled to its direct costs for these locations (Findings 1821A-Admitted; 1822A-Admitted; 1807A-Admitted; 1859R-Admitted).

36. No evidence was presented as to how, when, and where each dimensional problem for a mechanical device delayed the pouring of a specific area of concrete. Appellant's project manager did testify that appellant had to by-pass some undefined areas or poured an area and had to return and core drill the holes for the piping for the mechanical devices for that area (tr. 2/129-34). Its delay expert also concluded that the concrete pouring was disrupted in little, again undefined, areas in the January to April 1977 period (tr. 27/150-52; 26/194-95). Thus, we are unable to determine whether these problems delayed the project.

37. Electrical and telephone floor boxes were to be set in the concrete floors (tr. 2/137; 11/79). These boxes had to be installed prior to the pouring of these concrete floors (id.). The installation dimensions for these boxes had to be determined from the contract drawings or provided by the Government (tr. 2/134-36; 11/78-89).

38. By requests dated 21 December 1976 and 6 January 1977, appellant requested that the Government furnish dimensions locating telephone and electrical floor outlets for rooms 3422, 3426, 1101, 1102, 1401, 2900, 2801, 5602, 5430, 5004, 1302, and 4301 (Findings 1865A-Admitted; 1866A-Admitted). The Government responded on 3 February 1977 and 15 February 1977 with Sketches 102, 104 to 109, and 111 (Findings 1867A-Admitted; 1868A-Admitted). In addition to clarifying dimensions, Sketch 102 added 1 telephone floor outlet and 2 telephone wall outlets; Sketch 104 added 5 electrical floor outlets and 4 telephone floor outlets; Sketch 105 added 3 telephone wall outlets; and Sketch 106 changed electrical floor outlets to wall outlets (Finding 1867A-Admitted; 1871A-Disputed: undisputed portion; 1876R-Disputed: undisputed portion). These changes required by the Government were ones for which the Government admitted entitlement for direct costs in COR 125 (Finding 1871A-Disputed: undisputed portion; 1875R-Admitted; 1876R-Disputed: undisputed portion). The other sketches clarified the dimensions for the location of telephone and electrical floor outlets (Finding 1876R-Disputed: undisputed portion).

39. No evidence was presented as to how, when, and where each dimensional problem for electrical and telephone outlets delayed the pouring of a specific area of concrete. Neither of appellant's two project managers nor its electrical subcontractor's project manager knew whether the pouring of any of the concrete floor slabs was delayed by the electrical and telephone floor outlet problems described in finding 37 (tr. 2/137; 11/85; 12/128). Thus, we are unable to determine whether these electrical and telephone outlet dimensional concrete problems delayed the project.

40. The concrete for most of the floors of the hospital was reinforced with wire mesh rather than reinforcing steel (tr. 2/141-42). The mechanical level located between the fourth and fifth floors in the tower portion of the hospital had a structural concrete slab constructed with reinforcing steel (tr. 2/141). It was load bearing because this level was a mechanical equipment room which included equipment like air handlers (tr. 2/141).

41. Appellant submitted shop drawings to the Government before pouring the concrete slab for the mechanical level (tr. 2/142). On 14 February 1977, the Government returned these shop drawings without approval and included two sketches or drawings depicting detailed concrete sections altering the reinforcing steel and the configuration of the concrete slab for the mechanical level (Finding 1904R-Admitted; tr. 2/142, 144).

42. By a letter dated 20 April 1977, appellant confirmed to the Government that it had installed studs on 3 structural steel beams at the mechanical level with the concurrence of a Government representative (Finding 1895A-Admitted). The Government approved the installation on 26 April 1977 and admitted that omission of the studs was inadvertent (Finding 1896A-Admitted).

43. By a letter dated 9 September 1977, appellant requested an equitable adjustment in the amount of $6,183.75 plus a one day time extension for the changes to the concrete slab for the mechanical level (Finding 1899A-Admitted). The Government recognized entitlement for these changes and assigned COR No. 109 to appellant's claim for an equitable adjustment (Finding 1898A-Admitted). The work included revisions to the false deck, steel studs, and other areas of the north and south ends of the mechanical level as detailed in Government provided sketches (Finding 1903R-Admitted).

44. At negotiations concerning the Government's changes to the concrete slab for the mechanical level, the parties agreed on an equitable adjustment of $981 for direct costs but disagree now as to whether these direct costs included COR inefficiencies (Undisputed portions of Findings 1900A & 1907R). They also disagree as to whether the equitable adjustment included overhead but agree that they did not agree on time (id.). The Government issued unilateral Change Order No. 71, including COR No. 109 as a part of COR Group No. 2 which added $122,958 as direct costs and $24,338 as impact costs for COR Group No. 2 as a whole (finding 7; Finding 1901A-Admitted). A Government Cost Summary for the modification indicates that the modification included $1,221 for COR No. 109 (Finding 1909R-Disputed: appellant's alternative language). This cost summary also stated that the $1,221 included a markup for overhead (id.).

45. The original contract CPM included the following schedule for the pouring of the flour slabs for each of four separate floor areas of the mechanical level:

This CPM also included the following schedule for the pouring of the mechanical equipment pads for each of four separate floor areas at the mechanical level:

(Exh. G-10,002)

46. No evidence was presented as to how, when, and where the requirement for revision and resubmission of shop drawings relating to the pouring of the concrete for the mechanical level delayed the pouring of a specific area, such as separate floor areas E, F, G, or H, of that level. Vague and general testimony was offered to the effect that appellant poured the concrete floors out of sequence (tr. 17/118; 37/41). This testimony did indicate that appellant began pouring on the fourth level rather than the lower levels as planned (tr. 37/41); and poured the mechanical level out of sequence (tr. 17/118). None of this testimony, except for that relating to the floating slabs on the west end of the mechanical level described in finding 47, identifies a specific area of a floor.

47. The Government did not know why this sequence of pouring the concrete floors described in finding 46 was followed and claimed that it was a complete surprise (tr. 37/41-42). According to appellant's ductwork job supervisor, the change in sequence for the mechanical level related to trouble with the floating slabs around the equipment pads on the west side of the mechanical level (tr. 17/118-19). These floating slabs cracked when jacked up and had to be repaired (tr. 17/119). This problem, according to appellant's ductwork subcontractor's job superintendent, related to how to vibration isolate the equipment placed on those pads with springs (tr. 17/122). This problem was described in great detail in ASBCA No. 44863, 93-1 BCA ¶25,297, aff'd, Santa Fe Engineers, Inc. v. Admiral Frank B. Kelso, Acting Secretary of the Navy, Fed. Cir. Nos. 92-1378 et. al., 8 February 1994, which clearly indicates that appellant had the responsibility for determining how to isolate its equipment on these pads and, consequently, was responsible for any delay relating to this problem. More importantly, the floating slab problem on the mechanical level appears to be an entirely different problem than the one involving the shop drawings for the floor slab described in finding 41.

48. Appellant's delay expert's opinion based on appellant's as built exhibit (exh. A-440) was that the mechanical level concrete was delayed from 2 March 1977 through 25 March 1977 due to appellant's having to resubmit shop drawings, procure additional reinforcing steel, and reorient the forms for that pour (Warner WT at 39; tr. 27/90-91; 28/23-25, 27-28). This as built exhibit indicates that welding was performed on the mechanical level on 2, 9, and 16 February 1977 (tr. 28/29-32). It further indicates that concrete was poured on 22 February 1977 on this level (tr. 28/32). It shows that forms were set on 25 and 28 February 1977 (tr. 28/33-34). It then indicates that concrete was again poured on the mechanical level on 2 March 1977 (tr. 28/34). Welding was performed on 4 March 1977 (tr. 28/34). The exhibit indicates that forms were set from 25 to 31 March 1977, and on 1, 4, 6, 7, 11, 14, 15, 18 and 19 April 1977 (tr. 28/35). It further shows that forms were set and concrete poured on 22 April 1977 (tr. 28/36). Forms were also set from 25 to 29 April 1977 (tr. 28/36). Concrete was poured on 27 April 1977 and 2 May 1977 (tr. 28/36). Forms were set on 3 May 1977 (tr. 28/36). Concrete was poured and water proofing of concrete was performed on 4 May 1977 (tr. 28/36). Water proofing was also done on 4, 6, and 9 May 1977 (tr. 28/36). It indicates that the floating slab was installed on 11 to 13 May 1977 (tr. 28/37). Forms were set on 16 May 1977 (tr. 28/37). Concrete was poured on 20, 23 May 1977 (tr. 28/25, 27, 37). The floating slab was also installed on 20 May 1977 (tr. 28/37).

49. Appellant's delay expert's opinion was based on the fact that no concrete activities were performed after 2 March 1977 through 25 March 1977 according to appellant's as built exhibit (exh. A-440; finding 47). Appellant's expert did not point to any underlying evidence to support his opinion other than the “as built.” The as built does not include any information as to what separate area or portion of a floor any concrete activity was performed on nor does it indicate why no concrete activities were performed over the 2 to 25 March 1977 period (exh. A-440). The Government alleges that the reason that concrete work stopped on 2 March 1977 was that it rained on that day, cites a construction daily report of that date for its position, and requests that we reopen the record to receive this report. However, neither party has provided us with convincing evidence as to what happened during the 2 to 25 March 1977 period. Accordingly, we are unable to determine why no concrete activity took place during this period and exactly where on the mechanical level these activities had stopped to determine whether they related to the shop drawing submittal problem at issue here.

50. Appellant's expert testified that electrical, toilet, and mechanical level concrete problems caused a change in the sequence of pouring the concrete floors which eliminated the float and made these activities critical (tr. 27/147-48; 28/33; 34/12, 43-45, 50). He provided no rationale for this opinion and we have been unable to determine that these activities caused any delay as discussed in our findings supra. He opined further that this sequence change eliminated the late finish dates and made controlling the early finish dates (tr. 28/64-65, 88; 34/44-45, 50, 70). He gave no rationale as to why the resequencing would make the early rather than the late finish dates controlling other than to assert that these dates became the same when the float was eliminated and that appellant intended to finish early (id.). He failed to point to and we have been unable to find any persuasive proof of any plan or intent of appellant to rely on early finish dates. Such a plan would appear to be contrary to the contract provision providing that the float is not for the exclusive benefit of either contracting party (finding 17 at ¶1.6).

51. Appellant's delay expert further indicated that the last concrete activity was the roof of the tower which had an early finish date of 1 April 1977 (tr. 27/152; 28/20-22; 34/12). Contrary to appellant's delay expert's opinion, the last activity according to the original contract CPM was not at the tower roof as indicated by appellant's expert (early finish date of 28 March 1977 and late finish date of 20 April 1977) but was the forming and pouring of the equipment pads at the mechanical level which had an early finish date of 1 April 1977 and late finish date of 4 May 1977 as he admitted during cross-examination (finding 30; tr. 28/62-63, 85, 93-94). In conclusion, we are unable to agree with appellant's delay expert and are unable to find any excusable delay resulting from these concrete activities.

H. COR C & D

52. On 15 February 1977, the Government issued a unilateral change order known as Change Order Request (COR) C along with a notice to proceed with those changes which involved revisions of 19 contract drawings including door schedule and types, room finishes and colors, relite elevations, water riser diagrams, and single line diagrams (Findings 1913A-Admitted; 1926R-Admitted). These drawing revisions were issued because the layout, size and type of sterilizer to be installed in the hospital were modified (Finding 1914A-Admitted). They modified the installation of the sterilizers on the service level of the hospital by altering the rough in dimensions, drainage, water and ventilation for these sterilizers (Finding 1927R-Admitted; tr. 15/161-62).

53. On 30 June 1977, the Government issued a stop work order for the COR C drawing revisions (Finding 1915A-Disputed: undisputed portion). The parties dispute when appellant received this stop work order but agree that appellant notified its subcontractors of the stop work order on 5 July 1977 (Undisputed portions of Findings 1915A; 1916A; 1929R).

54. The Government in a memorandum of negotiations dated 9 April 1979 indicated at page 2 in paragraph 4 that appellant's mechanical subcontractor's project manager stated “that underground piping was installed in accordance with original contract drawings, COR ‘C’ drawings and finally COR ‘D’ drawings, thus necessitating a substantial amount of concrete saw cutting, breakup, removal and reinstallation” (exh. A-308). Testifying concerning this exhibit, appellant's mechanical subcontractor's project manager admitted that he could not recall whether any work under COR C had taken place prior to the issuance of the 30 June 1977 stop work order described in finding 53 (tr. 15/163-64). He did testify that some original contract work had been installed prior to the issuance of the COR C drawings (tr. 15/163). He further testified that he did not know what the stage of construction was when these COR C and D changes were issued (tr. 15/166).

55. Appellant's project manager similarly testified that he did not have a great deal of recall as to what delay and inefficiency these COR C and D changes would have caused but that there probably was work that had to be torn out (tr. 2/92). His testimony further indicated that he did not seem to remember exactly what work was being done when the Government issued the stop work order by stating that “if” this work were being done this would happen and by statements that he thought COR C had started and that certain work “might” have started prior to the issuance of the stop work order (tr. 2/87-91).

56. We are unable to conclude from the testimony described in findings 54 and 55 that the stop work order delayed appellant. Appellant's as built indicates that the only plumbing work which took place during the period of 1 July 1977 to 2 November 1977 was performed during the period of 20 through 27 July 1977 (exh. A-440). In addition, it indicates that a substantial amount of fireproofing of structural steel took place during the period of 21 June 1977 through 21 August 1977 (exh. A-440; finding 84). It also shows electrical feeder work in the period from 1 July 1977 through 21 July 1977 and on 3,4 and 8,9 August 1977 (id.) Other than appellant's delay expert's conclusionary testimony that the stoppage of plumbing was related to the 30 June 1977 stop work order for the sterilizers (Warner WT at 152-54; tr. 28/154; 30/72-73; 33/56-59), no convincing evidence was identified as to why the plumbing work stopped. In light of the problems with fireproofing and the continuing work with electrical rough in, we are unable without more proof to find that all plumbing rough in was delayed by the problems with the sterilizers.

57. On 19 August 1977, the contracting officer issued (a) COR D revising 13 to 15 of the 19 contract drawings previously revised by COR C and reissuing the remaining COR C drawings and (b) a notice to proceed with these changes and work (Finding 1918A-Admitted; undisputed portions of Findings 1930R & 1931; Finding 1932R-Admitted). COR D related to alterations in the size and type of government furnished sterilizers which in turn necessitated a revision of the sterilizer layout in the service level autoclave rooms - S301A and S302A (Finding 1933R-Admitted; 1919A-Admitted).

58. No evidence was presented as to when the change order work required by the issuance of COR D was performed by appellant and its subcontractors. Appellant's expert recognized this (Warner WT at 152; Finding 4650A-Disputed). He opined that the work took place over a period of 6 months to a year after the notice to proceed (id.). No evidence other than appellant's delay expert's opinion testimony, based upon his unspecific and very conclusionary analysis of his as built schedule, that HVAC ductwork, plumbing, and electrical rough in work was critical, was being performed during this time period, and must have been delayed was presented to indicate the relationship of COR D work to other contract work (Warner WT at 151-54; tr. 28/134-49, 153-54). Appellant's delay expert opined that COR C and D caused concurrent delay with other issues for unspecified periods during his period 2, which we describe in detail later, and that because of this concurrency he failed to determine any specific number of days of delay for the issue (tr. 26/197-98; 27/126-27).

59. Appellant presented no testimony as to how the CPM schedule would have been affected by the issuance of COR C and D. Four mechanical activities affected by COR C and D had 32 to 71 days of float at the time of the issuance of COR D (Findings 1936R-Admitted; 1937R-Admitted).

60. The parties settled the direct costs for COR C and D in the amount of $4,366 (Undisputed portion of Findings 1922A), and agree that direct costs are not at issue in this appeal (Finding 1925R-Admitted). We are unable to determine from the above findings that there was any delay, disruption, or inefficiency due to the issuance of COR C and D.

I. Tolerance Problems Between Precast Concrete Panels & Structural Steel

61. Detailed findings of fact concerning entitlement to direct costs for this issue were made in the appeal of Santa Fe Engineers, Inc., ASBCA No. 45228, 93-1 BCA ¶25,555, reconsid. denied, 93-2 BCA ¶25,782, aff'd, Santa Fe Engineers, Inc. v. Admiral Frank B. Kelso, Acting Secretary of the Navy, Fed. Cir. Nos. 92-1378 et. al., 8 February 1994. Precast concrete panels were bolted to steel brackets welded to the structural steel framework to form the skin or exterior walls of the hospital (finding 4, ASBCA No. 45228). Our prior decision found that the contract drawings and specifications were defective in requiring that appellant modify the attachment hardware used to hang these panels from the structural steel during their installation, Santa Fe Engineers, Inc., ASBCA No. 45228, supra. We denied, however, appellant's claim that the precast concrete drawings were defective due to certain unidentified contract drawing errors appellant discovered during the shop drawing process for lack of proof (id.). We reserved for this opinion the issue of whether the defective drawings and specifications relating to the installation of the precast concrete panels caused any overall project delay and disruption.

62. As of 13 November 1976, the contract CPM schedule had an early start date of 8 April 1977, a late start date of 4 May 1977, and float of 18 days for the commencement of the delivery and erection of the precast concrete panels (exh. G-3710 at activities 1662-1884; see Finding 531R-Disputed). The contract CPM in effect on 13 April 1977 had a late start date of 9 June 1977 with 12 days of float (Finding 532R-Disputed: appellant does not dispute that the CPM schedule so provides but questions its validity). Other than these contract CPM schedules, the record does not include a schedule with dates as to when the precast concrete panel work was to commence and be completed. Appellant's expert testified that this activity is a critical one involving an anchor component for enclosing the project (Warner WT at 146). However, he did not identify what schedule appellant was following.

63. The delivery to the job site and the erection of all of the precast concrete panels took place between mid-May 1977 and 18 August 1977 (Finding 533R-Admitted; see Finding 245A-Disputed).

64. Appellant admitted in its proposed Finding 4637A that “. . . the actual precast took place in a period of time either equal to or slightly shorter than the period allowed in the As-Planned Schedule.” See also Warner WT at 145.

65. No evidence of overall project delay was presented other than appellant's delay expert's opinion testimony, based upon his unspecific and very conclusionary analysis of his as built, that numerous instances of tolerance problems in attaching the precast concrete panels to the structural steel framework caused critical but concurrent delay with the delays caused by the relite and door frame claims as well as the change orders for COR C and D (Warner WT at 143-45; tr. 27/121-23, 133-34; 28/176). However, he admitted that he did not quantify any number of days of delay for the delivery and installation of the precast concrete panels (tr. 27/121-23, 133-36). While we have already determined that appellant performed extra work in installing these panels, we are unable to find that this activity caused any overall project delay and disruption.

J. Fireproofing of Structural Steel

66. Fireproofing of the structural steel was the trade scheduled to lead the construction train up the building after the erection of the structural steel and pouring of the concrete decking (tr. 35/77; Warner WT at 38; O‘Brien WT at 75). The rationale is that the structural steel beams to be coated with fireproofing are located near the concrete deck above the area where heating and air conditioning ductwork, plumbing piping, electrical conduit, and cable trays would subsequently be installed (tr. 37/43). Thus, these activities were scheduled to follow fireproofing (tr. 35/36, 37; 37/43; O‘Brien WT at 75).

67. Two methods can be used to fireproof the structural steel. The first is to spray the fireproofing material on the steel (tr. 19/38). The spray is applied by a person being pushed on a large, rolling scaffold who is located 2 to 3 feet from the steel with a great deal of the fireproofing material getting over everything as well as falling off the steel being fireproofed creating a mess on the floor (tr. 19/38-39, 41-42; 15/79). The mess is scraped up after the application (tr. 19/41). The second method is the hand application of fireproofing in the same manner as plastering (tr. 11/93). It is not as messy as the spray method (tr. 19/44). The material is applied by hand with a trowel (tr. 19/45). Both methods involve wet trades which normally do not work in areas at the same time as dry trades such as electrical, ductwork, or plumbing (tr. 35/78, 80).

68. A dispute arose between the parties concerning which of the two methods of fireproofing was to be used and the environmental conditions under which it was to be applied (Finding 1946A-Disputed: undisputed portion). Appellant took the position that the contract permitted the use of the spray on method at temperatures above 40 degrees F (Finding 1947A-Disputed: undisputed portion). The Government's position was that the contract required the hand application by trowel of 3 coats of vermiculite gypsum plaster (VGP) and at temperatures of not less than 55 degrees F (Finding 1947A-Disputed: undisputed portion). The Government's position was found to be correct in Santa Fe Engineers, Inc., ASBCA Nos. 22090, 22194, 79-1 BCA ¶13,647, aff'd, Santa Fe Engineers, Inc. v. United States, 227 Ct. Cl. 623 (1981) (Finding 1949A-Admitted).

69. Appellant and its fireproofing subcontractor each prepared its bid intending to use the spray method of fireproofing of the structural steel beams (Finding 1950A-Admitted). According to appellant's summary as planned schedule, appellant was to commence fireproofing on 15 December 1976 and complete that effort by 27 April 1977 (exh. A-443). However, this exhibit indicates in its lower right corner that it was based on early start and finish dates (id.). The original contract CPM schedule indicates that the late start date for fireproofing was 19 January 1977 (second floor) and the late finish date to complete all fireproofing was 23 May 1977 (exh. G-10,002 at 23, 42).

70. Appellant began fireproofing of structural steel on 14 February 1977 and completed this effort on the hospital structure on 10 November 1977 (Finding 1953A-Admitted; Finding 1959A-Disputed: undisputed portion). Appellant's fireproofing subcontractor was scheduled to begin fireproofing on the first floor but ductwork had already commenced there so appellant proceeded with fireproofing in a different sequence (Finding 2475R-Admitted). Fireproofing instead commenced on the third floor in February of 1977 and on the second and fourth floors in March of 1977 (Finding 1988R-Admitted).

71. During the period from January 1977 through March 1977, appellant's mechanical subcontractor installed vertical and horizontal plumbing piping ahead of fireproofing (Finding 1997R-Disputed: undisputed portion). As of 4 March 1977, appellant's heating and cooling ductwork subcontractor was directed by appellant to work out of sequence in whatever work areas were available (Finding 2009R-Disputed: as amended by appellant). On 7 March 1977, appellant directed its ductwork subcontractor to proceed with duct installation on the third floor except for ducts that came within 3 feet of the structural steel to leave space for the fireproofing of that steel (Finding 2012R-Admitted; Finding 2015R-Admitted). Appellant's ductwork subcontractor responded that the restrictions requiring space for the installation of fireproofing made it not feasible to proceed until the fireproofing was installed (Finding 2016R-Admitted).

72. Appellant commenced spraying on fireproofing of structural steel on the third floor on 28 March 1977 but was forced to stop when the spray nozzle became plugged (exh. G-72). By a non-compliance notice of that same date, appellant was advised that the fireproofing was unsatisfactory because the environmental conditions did not conform to the contract (exh. G-72).

73. Appellant's ductwork subcontractor proposed at a meeting between appellant and its subcontractors on 1 April 1977 that it be permitted to proceed prior to fireproofing (Finding 2034R-Admitted). Appellant's fireproofing subcontractor objected due to the extra costs of having to work around the ductwork (Finding 2035R-Admitted). Appellant directed that its ductwork subcontractor not proceed on 5 April 1977 (Finding 2044R-Admitted). Its ductwork subcontractor replied by a letter dated 7 April 1977 that it had no choice but to resume due to the delays but that appellant had to protect the ductwork from fireproofing (Finding 2047R-Admitted). It further advised by a 19 April 1977 letter that it was proceeding with the installation of ductwork out of sequence from the CPM Schedule (exh. G-90; Finding 2066R-Disputed: undisputed portion). In corroboration of this, appellant's electrical subcontractor's daily report dated 19 April 1977 also stated that both the installation of ductwork and plumbing rough in had commenced near the concrete deck above the third floor (exh. G-91; Finding 2068R-Disputed: undisputed portion).

74. Very few days of work on fireproofing were performed on the first four floors during April of 1977 (Finding 1988R-Admitted). No fireproofing was performed between 15 April 1977 and 2 May 1977 (Finding 1988R-Admitted). Appellant's fireproofing subcontractor summarized the situation in a letter to appellant dated 26 April 1977:

We were then directed to start fireproofing of the structure. We started lathing of beams with a crew of men which increased to approximately 16 men in order to expedite your project. We then started the spray on material only to find that Santa Fe Engineers, Inc. did not maintain the required temporary heat according to the specifications and contract. We were forced to stop the operation, due to a non compliance filed by the owner. We have since lost job momentum, labor production, overhead cost and key personnel, all of which is totally unnecessary.

We have now been sitting and waiting while Santa Fe Engineers, Inc. procrastinates in supplying sufficient heating of this project.

Santa Fe Engineers, Inc. has directed all other trades to proceed ahead of the sprayed fireproofing. This Atlas Plastering, Inc. will not and can not tolerate. If properly co-ordinated and properly heated Atlas Plastering, Inc. could have in one weeks' time had enough area fireproofed to allow all trades a place to work. However, Atlas Plastering, Inc. is now faced with probably two to three times the cost to fireproof these areas.

(Exh. G-89; Finding 2063R-Disputed: undisputed portion).

75. Appellant protested in a letter to the Government dated 20 April 1977 that the installation of a temporary enclosure of the building and provision of temporary heat so that fireproofing could proceed was exceedingly expensive and would substantially delay the project past the contract completion date (Finding 2071R-Admitted; Finding 2072R-Admitted). By 21 April 1977, appellant had enclosed the third floor with reinforced visqueen so that the temperatures on that floor could be maintained at 55 degrees F (Finding 2075R-Admitted; Finding 2080R-Admitted). By 22 April 1977, appellant had turned on the heat on the third floor using propane heater units and had commenced to enclose the second floor with reinforced visqueen (Finding 2080R-Admitted). Electrical outlets, thermostats, and heaters were installed on the second and third floors on 28 April 1977 (Finding 2088R-Admitted). By 11 May 1977, appellant had installed a visqueen “wall” around the building in order to maintain the required 55 degrees Fahrenheit temperature for fireproofing (Finding 2133R-Disputed: undisputed portion).

76. As of 29 April 1977, ductwork and pipe in some areas of the second and third floors had been installed so close to areas to be fireproofed that the ductwork and pipe had to be moved to allow access for fireproofing (Finding 2094R-Admitted; exh. G-106).

77. Appellant's fireproofing subcontractor resumed work on 2 May 1977 and continued to work throughout May on the third floor (Finding 1988R-Admitted; Finding 2102R-Disputed: undisputed portion; Finding 2112R-Admitted). However, fireproofing was applied on 4 May 1977 even though the temperature was below that permitted by the contract (Finding 2112R-Admitted). The Government issued a non-conformance notice on 2 May 1977 for the fireproofing work stating that the fireproofing scratch coat was not of the correct thickness (exh. G-320; Finding 2100R-Disputed: as amended by appellant). Appellant responded by a letter dated 3 May 1977, arguing that it was acceptable to apply fireproofing in a one-coat method under the contract (Finding 2110R-Admitted). The Government in a letter of the same date replied that the one coat method was not acceptable under the contract and that any fireproofing applied with this method would have to be replaced without charge (Finding 2111R-Admitted).

78. Appellant's fireproofing subcontractor notified appellant by a letter dated 10 May 1977 that the Government's representatives on site indicated that the Government would not accept the one coat, spray method of fireproofing and would reject any method but the hand applied 3 coat method (exh. G-331). Appellant's Secretary/Treasurer by a letter dated 13 May 1977 to the ROICC warned that appellant did not concur that the current resequencing of trades due to fireproofing was a major schedule revision requiring a major revision to the CPM schedule (exh. G-332). The ROICC replied by a letter confirming a meeting of representatives of both parties that he disagreed and that a major CPM schedule revision was required stating in support of his decision as follows:

The basis of our determination that a revised network is required was discussed. As noted in our Serial 4673, Santa Fe Engineers is not following the sequence of work shown on the approved network diagram in connection with the application of vermiculite gypsum plaster fireproofing. The present network shows the HVAC ductwork to be dependent upon completion of fireproofing work. In actuality, both the ductwork and other mechanical piping are being installed ahead of the fireproofing creating a very difficult working condition in many locations where the gypsum plaster fireproofing is to be applied.

Appellant's Secretary/Treasurer indicated that it would provide the revised network as soon as its fireproofing subcontractor could provide accurate durations for applying the fireproofing in a manner it had not anticipated (exh. G-333).

79. On 13 May 1977, appellant's fireproofing subcontractor stopped all fireproofing (Finding 2141R-Admitted; Finding 2144R-Admitted); and by a telegram of that same date requested that appellant provide direction as to how to apply fireproofing (Finding 2139R-Admitted). Appellant's legal counsel again protested to the Government by a letter dated 16 May 1977 that compliance with the contractual environmental requirements and those for a three coat method of application were extremely expensive and would cause further delay and disruption (Finding 2149R-Admitted; Finding 2150R-Admitted; Finding 2153R-Admitted).

80. As of 16 May 1977, appellant's fireproofing subcontractor was removing nonconforming fireproofing on the second and third floors of the hospital (Finding 2148R-Admitted; Finding 2152R-Admitted; Finding 2157R-Admitted; Finding 2159R-disputed: undisputed portion; tr. 20/103). It did so from the third floor on 17-25 May 1977 (Finding 2167R-Admitted; Finding 2176R-Admitted; Finding 2180R-Admitted). This work was very messy requiring substantial cleanup work (Finding 2180R-Admitted).

81. By a letter dated 20 May 1977, appellant directed its fireproofing subcontractor to follow the Government's interpretation of the contract by hand applying vermiculite gypsum plaster to the structural steel in 3 coats and only when temperatures were not less than 55 degrees F (Finding 2170R-Disputed: as amended by appellant). Its fireproofing subcontractor replied by a letter dated 26 May 1977 that it disagreed that the contract required this method of application and advised that it would seek its increased costs in complying with this direction (Finding 2186R-Admitted). It repeated its objection again to appellant by another letter dated 8 June 1977 (Finding 2207R-Admitted). It claimed in a letter dated 13 June 1977 that the hand applied as contrasted with the sprayed on fireproofing was four or five times as costly (Finding 2219R-Disputed: as amended by appellant). The contracting officer in a final decision dated 29 June 1977 required that appellant hand apply the vermiculite gypsum plaster fireproofing in 3 coats rather than use the one coat spray on method (Finding 2273R-Admitted).

82. Appellant directed its fireproofing subcontractor to hire as many plasterers as it could as soon as it was determined that fireproofing was to be hand applied rather than sprayed (tr. 2/106). Its fireproofing subcontractor had difficulty finding plasterers to hand apply the fireproofing during the first part of June 1977 (Finding 2209R-Admitted; Finding 2216R-Disputed: as revised by appellant; Finding 2222R-Disputed: as revised by appellant). It removed non-conforming fireproofing on the second and third floors and replaced the metal lathe and fireproofing in these areas on 20 June 1977 (Finding 2248R-Disputed: as amended by appellant). It continued with this work on the third floor on 22, 23, 27, 28, and 29 June 1977 as well as on 1 and 5 July 1977 (Finding 2253R-Admitted; Finding 2254R-Admitted; Finding 2264R-Admitted; 2267R-Disputed: as amended by appellant; 2271R-Disputed: as amended by appellant; 2276R-Disputed: as amended by appellant; 2278R-Disputed: as amended by appellant).

83. After appellant's fireproofing subcontractor was directed to use the hand applied rather than spray fireproofing, appellant ordered its electrical, mechanical, and ductwork subcontractors to work any area where ductwork, piping, or electrical work could be done without preventing its fireproofing subcontractor from reaching the structural steel beams even though fireproofing had not been completed there (tr. 2/103-107; 10/37, 38; 11/94, 95; 15/74; 17/29, 169; 19/44; 25/72-73; 37/43-44). All of these trades including fireproofing were working the second, third, and fourth floors simultaneously (tr. 2/106, 109; 15/73-74; 25/73). The other trades were directed to work ahead if possible and some worked ahead and some behind (tr. 2/108-09; 17/29, 169; 19/44; 25/108; 37/43-44). This caused out of sequence work, stacking of trades and labor inefficiencies which appellant admitted were its responsibility (Finding 1984R-Admitted).

84. During late May 1977, appellant's electrical subcontractor was complaining to appellant that it was being delayed by fireproofing (undisputed portions of the following disputed findings: Finding 2166R, Finding 2171R, Finding 2172R, Finding 2174R, Finding 2175R, Finding 2177R, Finding 2178R, Finding 2181R, Finding 2182R, Finding 2183R, Finding 2185R, Finding 2191R) and continued to complain until 15 June 1977 (undisputed portions of the following disputed findings: Finding 2193R, Finding 2196R, Finding 2200R, Finding 2203R, Finding 2206R, Finding 2208R, Finding 2210R, Finding 2212R, Finding 2213R, Finding 2223R, Finding 2224R, Finding 2233R).

85. On 3 June 1977, appellant stopped its heating and cooling ductwork subcontractor from commencing work on the fourth floor of the hospital because fireproofing had not advanced sufficiently there (Finding 2201R-Admitted). Its ductwork subcontractor complained on 14 June 1977 that it could not make any further progress on the second and third floors and progress was slow on the fourth floor of the hospital because of fireproofing (exh. G-169; Finding 2225R-Disputed).

86. HVAC ductwork and mechanical layout were proceeding even in areas where structural steel had not been fireproofed on 27 June 1977 (Finding 2262R-Admitted).

87. In June 1977, fireproofing was being performed on the second, third, fourth, service, mechanical, and sixth levels (Finding 1988R-Admitted). In July 1977, substantial fireproofing continued on the second, third, service, first, mechanical, and seventh levels (id.).

88. On 10 August 1977, appellant's HVAC ductwork subcontractor was directed by appellant to move ductwork at 3 locations on the second floor and at 8 locations on the third floor to permit fireproofing of the structural steel beams in conflict with the installed ductwork (Finding 2317R-Admitted; Finding 2322R-Admitted). Its ductwork subcontractor responded that it would require a change order authorizing the cost of removal (Finding 2312R-Disputed: as amended by appellant; Finding 2324R-Disputed: as amended by appellant).

89. On 9 September 1977, appellant's fireproofing subcontractor was two weeks off the current fireproofing schedule and expected to lose another day (Finding 2344R-Admitted).

90. From 20 June 1977 through 28 October 1977, appellant's electrical subcontractor reported numerous areas where its work was held up due to fireproofing delays (Appellant's alternative language for the following disputed findings: Findings 2249R, 2274R, 2297R, 2301R, 2303R, 2306R, 2307R, 2310R, 2313R, 2319R, 2320R, 2323R, 2325R, 2328R, 2330R, 2333R, 2337R, 2339R, 2342R, 2350R, 2351R to 2353R, 2357R, 2360R, and 2361R). It also complained about trade stacking (Finding 2325R-Disputed: as amended by appellant); and the fireproofing subcontractor who had followed its work had placed fireproofing material over its wires and conduits (Finding 2292R-Disputed: as amended by appellant; Finding 2343R-Admitted).

91. Similarly, appellant's HVAC ductwork subcontractor reported numerous areas where its work was held up due to fireproofing problems during the period from 23 June 1977 to 12 October 1977 (Finding 2257R-Admitted; appellant alternative language to the following disputed findings: Finding 2279R, 2341R, 2346R, 2348R; Finding 2355R-Admitted). It also complained about messy fireproofing on mechanical piping and ductwork (Finding 2286R-Disputed: as amended by appellant); and appellant responded by agreeing to clean the fireproofing material off the piping (Finding 2296R-Admitted). It admitted that it was 8 weeks late and lacked sufficient manpower to complete work in available areas on 24 August 1977 (Finding 2335R-Disputed: amended by appellant).

92. Appellant commenced the installation of conforming fireproofing of the structural steel after being directed by the contracting officer to do so on 20 May 1977 (finding 81, 83). This was 121 days later than the initial contract CPM schedule late start date of 19 January 1977 (finding 69). Appellant completed the fireproofing of the structural steel on 10 November 1977 (Finding 70). This was 171 days later than the initial contract CPM schedule late finish date of 23 May 1977 (finding 69). This increase in the amount of delay should not be unexpected as the change in sequence required more time for fireproofing because of the more difficult working conditions created by the installation of ductwork prior to fireproofing and the less efficient sequence of working wherever appellant's subcontractors could find a place to work (findings 83, 115). Accordingly, we find that at least 171 days of delay were the responsibility of appellant.

93. Appellant's delay expert's opinion was that the overall project was delayed 55 days due to appellant's problems with the fireproofing of structural steel (Warner WT at 160, 167). He further opined that the 55 days of delay were concurrent with the delays from the relite, door frame, and precast concrete claims as well as the change order for COR C and D (Warner WT at 160, 164, 167). He further stated that appellant mitigated the delay to 55 days by resequencing the work but failed to demonstrate in any detail why the resequencing was a more efficient way of performing the work (Warner WT at 162-63, 165-67). His opinion was based upon his detailed study of the as built and contemporaneous documentation (Warner WT at 163-65). He did not reveal in his testimony what he relied upon in his as built nor what contemporaneous documentation supported his view. Accordingly, we are unaware of exactly how he reached his conclusions.

K. Relite Dimensions

94. Detailed findings of fact concerning entitlement to direct costs for this issue were made in the appeal of Santa Fe Engineers, Inc., ASBCA No. 24844, 92-3 BCA ¶25,166, aff'd, Santa Fe Engineers, Inc. v. Admiral Frank B. Kelso, Acting Secretary of the Navy, Fed. Cir. Nos. 92-1378 et. al., 8 February 1994. Relites are windows located on interior walls and doors (finding 6, ASBCA No. 24844).

95. The contract drawings depicted the disputed relites to scale but some dimensions both as to size and location were not numerically expressed (finding 6, ASBCA No. 24844). Appellant was required to submit shop drawings of these relites (Findings 3 & 4, ASBCA No. 24844).

96. By a letter dated 4 January 1977, appellant requested some of the dimensions for relites and doors which were not numerically expressed (Finding 9, ASBCA no. 24844). The Government responded by a letter dated 13 January 1977 that these dimensions were adequately represented on the contract drawings by having been drawn to scale which the Government considered to be accurate and that exact dimensions were intentionally omitted to avoid requiring proprietary relites and frames (id.). Our findings in our prior opinion detail other appellant requests for dimensions of relites and doors and similar Government responses.

97. We held in our prior decision that the contract drawings were not defective in providing approximate dimensions by depicting the relites and doors to scale and permitting appellant to select specific dimensions during the shop drawing process. Santa Fe Engineers, Inc., ASBCA No. 24844, 92-3 BCA ¶25,166. Accordingly, any delays caused by this dispute are not the responsibility of the Government.

98. The Government alleges that the construction activities on the CPM schedule for relites were door submittal approval (514 - 718) and procure door frames (778 - 2814) (Finding 802R-Disputed). Appellant contends that this schedule was no longer valid (id.). However, we are unable from the record to determine what schedule appellant was following with respect to the relite shop drawings and the procurement of the relites.

99. Appellant's delay expert testified that he could not determine when the relites and door frames with the unspecified numerical dimensions at issue here were installed (tr. 29/126-27). He further indicated that the earliest date any door frame was installed in the hospital was 20 September 1977 on the fourth level (tr. 29/127-28).

100. Appellant's delay expert determined that the missing dimensions for the relites caused critical delay concurrent with the precast concrete claim as well as change order COR C and D (Warner WT at 16, 164, 167, 171). His analysis was based upon his study of his as built schedule and contemporaneous files (Warner WT at 171). He did not identify the details of his as built analysis nor did he identify what files or what was in them to support his determination. He did not allocate any specific number of days of delay (Warner WT at 71).

101. In the absence of evidence of schedule and actual performance, we are unable to determine that appellant was delayed in any manner by the relite and door frame dispute.

L. Door Frames & Partitions

102. In the Fall of 1977, the parties discovered that certain wall partitions were too narrow to accommodate the piping to be concealed inside these walls and that, in other locations, the thickness of the wall partitions did not match the thickness of the door frames (Finding 2491R-Admitted; tr. 2/169-70; 19/166-67; 46/82). These were discovered as appellant's carpenter foreman was laying out the walls and doors by painting lines to designate where they would be installed on the newly poured concrete floors (tr. 2/169). To accommodate the mechanical piping, the thickness of the walls was increased from 4 to 6 inches (tr. 2/169; 19/166-67; 46/82). The mismatch of doors and walls could be corrected by either increasing the wall or the door thickness (tr. 2/169-70; 19/168).

103. Many of the problems described in finding 102 were corrected on the spot by representatives of both parties (Finding 2532R-Admitted; tr. 2/172-73). These were memorialized through form letters issued over the period from 8 September 1977 through 4 November 1977 (Findings 2479A-Disputed; 2483A-Admitted to 2485A-Admitted; 2492R-Admitted; 2493R-Disputed: as amended by appellant; 2494R-Disputed: as amended by appellant; 2495R-Admitted; 2496R-Admitted; tr. 2/172-73). The Government's Notice to Proceed issued on 4 November 1977 for these changes included numerous walls and door frames (finding 2485A-Admitted). The Government has admitted that this dispute involved 5 door frames and 7 relites (Finding 2497R-Admitted).

104. At the time of this dispute, many of the wall studs had been erected on the 4th level but very few had been erected on other floors (tr. 19/167; 46/83). Accordingly, appellant's drywall subcontractor admitted that this was the only floor where its work sequence had been affected by these problems (Finding 2505R-Admitted). Its workers had to remove the wall studs for 4 inch walls and replace them with studs for 6 inch walls (tr. 19/167-68). It had to procure these studs and this delayed the finishing of these walls (tr. 19/169). The delay in installing these walls delayed the installation of the ceiling which could not be completed until the walls were up (tr. 19/169). Six of the walls listed in the Notice to Proceed on the fourth level of the hospital had to be removed and replaced (Finding 2485A-Admitted; tr. 46/85). In addition, the change in the thickness of some of the walls altered the center line for some of the plumbing penetrations on all of the floors requiring the relocation of these sleeves (tr. 46/46/85).

105. Appellant's project manager testified that the wall partition layout generally proceeded on a daily basis, although some delays occurred in obtaining decisions as to how to resolve a problem (tr. 2/177-78). Appellant's delay expert's as built demonstrative exhibit shows that a great deal of work was performed on the installation of walls during the September through November 1977 period (exh. A-440). However, it does not break down when walls at particular locations of the fourth floor were installed (id.; tr. 29/126-27). Accordingly, we are unable to determine how the problem areas were affected.

106. Appellant's project manager further testified that the delays generally involved the refabrication of door frames, although sometimes door frames were borrowed from other floors so that work could proceed (tr. 2/177-79). Appellant's drywall subcontractor's president also testified that the major problem causing delay was the long lead time for door frames (tr. 19/167-68).

107. On 1 December 1977, appellant was required to issue a second notice to proceed to its door frame supplier because its supplier did not understand that it had already received an official notice to proceed which it required before it would start fabrication (Finding 2499R-Admitted). Appellant's quality control representative rejected appellant's door frame supplier's shop drawings for the changed door frames at issue on 24 January 1978 due to numerous errors in jamb details (Finding 2500R-Admitted). Appellant's expert's as built does not distinguish between the changed and unchanged door frames and walls (exh. A-440). The earliest date that door frames were installed according to appellant's expert's demonstrative as built was 20 September 1977 (tr. 29/127-28; exh. A-440). This as built indicates that door frames were installed on the 4th floor between 20 September 1977 and 8 November 1977 (exh. A-440). However, it does not break down where door frames were installed at particular locations of the fourth or other floors (id.). Accordingly, we are unable to determine how the problem areas were affected.

108. As of November 1977, installation of metal studs for walls on the Service Level through the Level 7 was non-critical, with float ranging from 41 to 72 days (Finding 2533R-Admitted). Appellant's delay expert testified that he did not know when any of the disputed work became critical because he could not determine when each individual problem arose (tr. 28/196-97; 29/37, 50-51, 123). He stated his opinion that some of this work was critical based upon his analysis of his as built and contemporaneous documents (Warner WT at 171; tr. 29/14-15, 20, 40-42, 58-59). He did not identify how he made this determination by identifying what on the as built or other evidentiary materials he relied upon.

109. We are unable to determine what schedule appellant was following in installing the walls and door frames. In addition, we are unable to determine when appellant did the changed work involving wall partitions and door frames. Accordingly, we are unable to determine that this disputed work caused project delay.

M. The Major CPM Schedule Revision-ASBCA No. 24578

110. The parties used a look ahead report which listed the activities that appellant and its subcontractors were to perform in the next 3 months or a slightly longer period (tr. 9/46). Appellant and its subcontractors would decide each month what percentage of each activity had been performed for progress payment purposes (Finding 4926R-Disputed: undisputed portion; tr. 9/46, 47). The parties would then negotiate what the proper percentage should be for progress payment purposes (tr. 9/47-48; 10/18-21). After agreement was reached, appellant would place the information on load sheets and turn them over to the Government to be run on its computer (Finding 4826R-Disputed: undisputed portion; tr. 9/48; 10/19). The Government then ran its computer and returned a computer printout to appellant (tr. 10/20). These monthly percentages of completion for activities were mutually agreed by the parties to be accurate but not necessarily for the sequencing of these activities (Finding 4828R-Disputed: as amended by appellant).

111. Appellant's scheduling subcontractor testified that the Government refused to input changes into the CPM schedule causing that schedule to be less reliable (tr. 9/50, 55). Appellant provided change order information to the Government but was not permitted to place durations on the activities in that change order until that change order became a reality by being directed such as by the issuance of a notice to proceed (tr. 10/25-26, 29; 37/29-30, 137). The parties had to agree as to what activities were affected by the change and what the durations were (tr. 35/199; 38/57-58; 47/59). This information was inputted into the CPM schedule at the time the change order work was to be performed as you can always go back in time and input information as the ROICC testified (tr. 35/200; 37/138-39; but see 47/59).

112. The change order form had a place for appellant to list the number of days the change would take to perform but not how it affected the contract completion date (tr. 9/61). The information on these forms would only be inputted if the affected activities had less float than the proposed durations for the change (tr. 37/28, 34, 94; 38/158-59). One example appellant's scheduling subcontractor pointed to was exhibit A-182 dated 31 October 1977 which listed durations for COR's 19, 38, 42, 49, 55, 57, and 62 (tr. 9/78). The activities affected by these COR's had many more days of float than the durations proposed (exh. A-182). Thus, none of them affected the contract completion date (tr. 9/62-64).

113. By a letter dated 20 January 1977, the Government complained to appellant that it was not following the CPM schedule in pouring the concrete floors stating:

Your present direction is now clear in that you intend to pour the fourth level deck first. As this is a change of a major nature from the schedule reflected on your network diagram, you are required by Specification Paragraph 1F-1.4 to redraw affected portions of the diagram.

(Exh. A-140; G-4383; Finding 4850R-Admitted).

114. Appellant's scheduling subcontractor testified that the CPM schedule's reliability had already deteriorated when the fireproofing problem came up in the spring of 1977 (tr. 9/55-56, 58-59, 65). The CPM schedule still was a valuable tool prior to the fireproofing problem (tr. 9/58). The fireproofing problem had a significant, detrimental affect on this schedule (tr. 9/56). The contractually required hand applied plaster method of fireproofing took much more time to apply than the spray on method appellant had planned to use and had included in the initial CPM schedule (Finding 4847R-Admitted; tr. 9/56-57). Thus, the logic of that schedule was no longer being followed, depriving it of any use in managing the construction (tr. 9/79-80). Accordingly, by November of 1977, the schedule was no longer viable except as a progress payment tool (tr. 9/80).

115. As a result of the fireproofing dispute discussed infra, appellant's project manager resequenced the installation of piping and HVAC ductwork ahead of the fireproofing of the structural steel (finding 83; tr. 2/111-13; 9/81-82, 85, 108-09; 10/38; 34/62; Finding 4856R-Admitted & 4853R-Disputed: undisputed portion; 4904R-Disputed: as amended by appellant; Warner WT at 37-38, 78, 120, 159, 165). He also ordered that this work be done everywhere it could be performed rather than on a per area per floor basis as originally planned (finding 83; tr. 2/116; 34/62; Warner WT at 37-38, 78, 120, 165). This rescheduling completely changed the logic and sequence of the contract CPM schedule (finding 83; tr. 2/114, 116). Appellant's project manager altered the sequence of work without a CPM schedule and in accordance with his prior experience as a project manager (tr. 2/113-14). This change in sequence required more time for fireproofing because of the more difficult working conditions created by the installation of ductwork prior to fireproofing (Finding 4856R-Admitted).

116. As of 10 May 1977, appellant had not replied to the Government's letter dated 20 January 1977 (Finding 4854R-Admitted). On that same date, the Government again wrote to appellant complaining that field observations indicated that appellant was not following the work sequences in the contract CPM schedule (Finding 4855R-Admitted). This letter further stated:

Your network diagram shows the fireproofing work being completed on the various levels ahead of the ductwork installation. In practice, you are installing the ductwork and have yet to begin application of the vermiculite gypsum plaster fireproofing in accordance with the contract requirements.

(Id.). It also advised appellant that the change in sequence for fireproofing required the revision of the contract CPM schedule stating:

This known change in sequence coupled with probable affect [sic] upon duration resulting therefrom is regarded as a major network revision. Revision to the network is mandatory pursuant to the provision contained in Specification Paragraph 1F-1.4.

You are to respond not later than 13 May 1977 with a clear statement of your intention in this matter. Unless you can justify a longer period needed for revising your network, you are expected to provide the revised network not later than 13 May 1977, to coincide with our next scheduled network update conference.

(Finding 4857R-Admitted; Finding 1338A-Disputed: undisputed portion). At a meeting held on 13 May 1977, the Government's representatives complained that appellant was installing HVAC ductwork and mechanical piping prior to fireproofing of structural steel contrary to the contract CPM schedule and appellant's representatives promised to provide a revised network as soon as it got realistic data from its fireproofing subcontractor (Findings 4859R-Admitted & 4860R-Admitted). Appellant confirmed its promise to revise the schedule in a letter dated 17 May 1977 as soon as it could determine what method of fireproofing was to be used (Finding 4862R-Admitted).

117. The Government warned appellant in a letter dated 9 June 1977 that progress payments would be withheld if a satisfactory CPM revision was not submitted (Finding 4863R-Admitted; exh. A-136; G-4385). Appellant responded in a letter dated 10 June 1977 that it had directed its scheduling consultant to revise the CPM schedule (exh. A-137). The Government in a letter dated 16 June 1977 stated that it was up to appellant to overcome the problems it was having with fireproofing and other contract work (exh. A-140; G-4384). The letter specifically warned appellant that it would not approve any revised schedule that did not conform with contract requirements as to the completion date.

118. Appellant began the major schedule revision in May of 1977 in an attempt to minimize the fireproofing problem (tr. 9/60, 67; 10/38-40). The first revision in May 1977 included a significant portion of the resequencing of the work and was an attempt to modify the CPM schedule to reflect what was happening in the field (tr. 9/67-68; 10/41). The Government refused to accept this or any of the other revisions when they did not indicate that the project would be completed on the official contract completion date taking the position that appellant had presented no legal justification to extend that date (tr. 9/67, 102, 109; 10/40-41).

119. Appellant continued to refine and adjust the CPM schedule over the period from May of 1977 to September of 1978 in an attempt to obtain a schedule reflecting the official contract completion date (tr. 10/40). In all, appellant submitted 12 different revisions (tr. 9/86, 169-70). Each differed in logic and sequencing (tr. 9/92). However, each revision continued to indicate a completion date far later than the official one (tr. 10/40). Each continued to be rejected because the completion date reflected in the revised schedule was much later than the contractually required one (tr. 9/91-92). Appellant's scheduling subcontractor admitted that its various revisions also had other deficiencies but claimed they were minor and of a housekeeping variety (tr. 9/103). No specific testimony was presented as to exactly what these problems were.

120. By a letter dated 7 July 1977, the Government presented a long commentary on appellant's proposed revision of the CPM schedule (exh. A-151, G-4395). It pointed out problems in sequencing the fireproofing in that appellant was working more than one floor at a time in the field but the revised CPM schedule did not show this (id. at ¶5). It also pointed out erroneous sequencing such as some materials being scheduled to be installed before their scheduled delivery (id. at ¶13). It concluded by stating that progress payments had been processed based upon appellant's efforts in submitting the revised schedule but that future payments would be based upon appellant's continuing efforts to revise the CPM schedule as required by the contract (id. at p.5).

121. By a letter dated 5 July 1977, appellant forwarded a letter dated 29 June 1977 from its scheduling subcontractor complaining about the Government's position on the subcontractor's revision of the CPM schedule (exh. A-149). The 29 June letter from appellant's scheduling subcontractor complained that the Government's scheduling requirements for the CPM revision were unrealistic in part because:

Given a reasonable schedule at the outset and removing four (4) to five (5) months for structural steel and fireproofing delays, and then requiring a schedule revision for completion on the original contract date, is unreasonable and a directive for acceleration.

(id.).

122. By a letter dated 13 July 1977, the Government responded to the 29 June 1977 letter of appellant's scheduling subcontractor stating:

This office has not directed you to accelerate construction, but has reminded you of your contractual obligation to complete all contract work within the contract time plus any extension granted thereto. We will accept your revised network with a predicted completion date beyond the current contract completion date as long as it can be shown that the time in excess of the current completion date is due solely to the effect of time caused by directed changes which have been incorporated into the network. In the case of directed changes, for which a written notice to proceed has been issued, but which have yet to be negotiated, acceptance of the revised network shall not be construed as an acceptance of the proposed logic and durations associated with the directed change. Proposed logic and durations are subject to negotiation. . . . [W]e do not regard the delay associated with the fireproofing dispute as a valid basis for causing the predicted completion date to extend beyond the contract completion date.

(Exh. A-153; G-4396; Finding 4869R-Admitted).

123. Appellant's scheduling subcontractor submitted another proposed revision of the CPM schedule to appellant by a letter dated 19 July 1977 (exh. G-4397). It indicated at paragraphs 4 and 5 on page 2 that “fireproofing activities have been changed completely per load sheets 2 and 3 as per discussions with Atlas Plastering” (id.). It complained at paragraph 2 on page 1 that the wide scope of the revision with so many changes made “it very difficult to make error-free revisions” (id.).

124. By a letter dated 15 August 1977, appellant submitted a claim in the amount of $150,000 plus a contract time extension of 45 working days for revising the contract CPM schedule (exh. A-161, -163, -166).

125. By a letter dated 2 February 1978, the Government advised the appellant that it could not give serious consideration to appellant's proposed revised CPM schedule dated 19 January 1978 because it had a projected completion date 200 days after the contract completion date (exh. G-4387, -4400). Appellant's scheduling subcontractor wrote appellant on 16 February 1978 indicating that it had reduced the scheduled completion date by more than 6 months but that it was impossible to compress the schedule any further (exh. A-195; G-4401).

126. By a letter dated 13 April 1978, the Government complained to appellant that appellant had still not submitted an acceptable revision to the CPM schedule caused by appellant's resequencing the work for which appellant was allegedly responsible and warned appellant that it was considering ordering appellant to accelerate its performance to meet the contract completion date (Exh. A-209; G-4388). In this regard, the letter states:

Now, some 11 months after our initial request, you have not yet provided the network revision which meets contract requirements. Granted there have been numerous submissions of data and meetings on the matter, and questions of logic sequence and cost loading have been worked out. However, the completion date shown on your latest submission is not in accordance with your contract.

* * *

In your letter Serial 426-1151/78 of 23 February 1978 you state that it is unrealistic to compress your schedule and meet the current contract completion date. ROICC letter Serial 4396 of 13 March 1978 requested you specify the reasons causing your difficulties in this matter. In your reply Serial 426-1200/78 of 20 March 1978 you refused to identify such causes.

127. By a letter dated 2 May 1978, appellant's attorney responded to the Government's 13 April 1978 letter arguing that it was an order to accelerate for which appellant would seek an equitable adjustment (exh. A-215). The letter listed 55 requests for time extensions seeking over 928 days of contract extension. It admitted that the contract required appellant to keep the CPM schedule current but claimed that the Government's refusal to input these 928 days of time extension until they were bilaterally agreed to by the parties made it impossible for appellant to keep the CPM schedule current. It also contended that the Government's threat to withhold progress payments while insisting on the preparation of a revised CPM schedule was economic duress. Appellant has failed to point to any evidence nor have we been able to find any evidence showing that any of these extension requests listed in appellant's attorney's letter were valid, where and when on the CPM they should have been inputted, and the relationship of these claims, if any, to any of the claims at issue in this appeal.

128. By a letter dated 19 May 1978, the Government responded to appellant's attorney's letter dated 2 May 1978 pointing out that the Government had entered changes in the CPM schedule prior to negotiations and pointed out that 70 separate CORs currently had been entered with either requested or negotiated time extensions (exh. A-219; G-4389). The letter points out that the CPM schedule is so out of sequence that it is impossible now to make a reasonable analysis on the contract completion date and that until an acceptable revision is submitted the Government cannot accurately enter changes. It further states that 7 of the 55 changes listed in appellant's attorney's letter have already been negotiated with an agreement that no time is due. It also indicates that another 7 have been entered into the CPM with requested durations. Still another 6 are disputed claims for which the Government denies any entitlement for money or time. It also states that negotiations of almost all of these claims were delayed because of negotiation with appellant's mechanical and electrical subcontractors over their overhead rates. The letter concludes by denying that the Government was directing acceleration and notifying appellant that no further progress payment will be paid until a satisfactory revised CPM schedule is implemented.

129. By a letter dated 9 June 1978, appellant proposed to provide the major schedule revision by 16 June 1978 with the official contract completion date remaining 20 December 1978, but with the parties agreeing to negotiate later who would bear the responsibility for delays beyond that date (Finding 4881R-Admitted; Finding 1350A-Admitted). Specifically, appellant's counsel proposed to the Government as follows:

ROICC and SFE will, upon completion and acceptance of the above revision, enter into a written agreement which will provide:

a. The official contract completion schedule will remain 20 December 1978; however, the parties will agree that the realistic completion date will be that of the new revision.

b. The “realistic” completion date is necessary due to contractor and/or government caused delays or changes, which will be negotiated between the parties.

c. Acceptance, by ROICC, of the revised completion date is without prejudice to the government's right to assess liquidated damages based on the official completion date; e.g., the government neither accepts the revised completion date nor waives the right to assess liquidated damages.

d. By submission of the revised schedule SFE does not waive any claim to liquidated damages or extended overhead.

e. The parties will continue to negotiate change orders and modifications, including acceptable time extensions...

(Id.).

130. By a letter dated 11 July 1978, the Government responded to appellant's counsel's letter indicating that it would agree to the proposed memorandum of understanding on the condition that certain language changes were incorporated and further indicating that it would approve appellant's major schedule revision concurrent with or subsequent to the execution of the memorandum of understanding (exh. A-231).

131. Appellant's scheduling subcontractor wrote appellant on 27 July 1978 advising appellant that if it were to revise the CPM schedule to meet the Government's desired completion date of 30 April 1979, it would have to compress the activities of appellant's electrical subcontractor but that the electrical subcontractor had complained that it needed all the duration times provided in the schedule (exh. G-4405). The letter also indicated that the current schedule erroneously showed the electrical activities being performed in an end to end sequence, that they were being performed in the field on several floors at a time, and that the enclosed proposed revisions should be made to reflect what was actually being done on the job (id.). It further pointed out that proposed revisions of a similar nature to the CPM schedule also were enclosed for drywall and mechanical activities (id.). It also points out that corrections were included for budget errors in the schedule (id.).

132. On 14 August 1978, the parties entered into a Memorandum of Understanding relating to a Major Schedule Revision (exh. A-247; Finding 4894R-Admitted; 1357A-Disputed: undisputed portion). This agreement provides in pertinent part:

a. The official contract completion schedule is 20 December 1978; however, the parties agree that the scheduled construction finish date will be that of the new revision, which is referred to herein as the Major Schedule Revision.

b. The scheduled construction finish date is later than the current contract completion date due to contractor and/or Government caused delays or changes, which will be resolved between the parties. . . . .

c. Acceptance, by Resident Officer in Charge of Construction, of the scheduled construction finish date is without prejudice to the Government's right to assess liquidated damages based on the contract completion date; e.g., the Government neither accepts the scheduled construction finish date nor waives the right to assess liquidated damages, provided, however, that the contractor in no way waives its right to claim time extensions (and seek release of liquidated damages related thereto), suspensions of work or extended overhead under the equitable adjustment provisions of the contract, including General Provision 6, “Disputes”.

d. The parties will continue to negotiate change orders and modifications, including applicable time extensions as follows:

i. On change orders wherein the notice to proceed was issued prior to 1 June 1978, time extensions, if any, will apply only to the official contract completion date, not to the scheduled construction finish date. The original contract CPM schedule will be used to determine if a time extension applies to these cases.

ii. On change orders wherein the notice to proceed is issued subsequent to 1 June 1978, time extensions, if any, will apply to both the contract completion and scheduled construction finish dates. The Major Schedule Revision CPM will be used to determine if a time extension applies to these cases.

(Exh. A-247).

133. By a letter dated 25 August 1978, appellant issued the following instructions to its scheduling subcontractor:

This letter is to confirm instruction given to you at a meeting held 23 August 1978. We advised you that SFE's priorities in regard to the CPM have changed. Previously we had told you to maintain a favorable cash flow. Now we are primarily concerned with getting time extensions on the completion date. To this end we asked you to jam the network back to show a 30 April 78 [sic], more or less, finish time, and, to use whatever means are available to take float out of the various activities. We requested the new network by Friday, 25 August 1978, so that we may get it run by the Navy over the weekend.

We further discussed the need to pre-test the affect [sic] on completion date of various COR's and claims. SFE is reluctant to run these tests on the Navy's computer. The price you estimated to put our data into a private computer was about $1,000 and about $260 per test run. We authorized you to proceed with this program. We hope that we can pre-test all COR's prior to negotiations. A part of this program requires the need for an update monthly on the new CPM in order to maintain a realistic schedule. We will use you to do this work.

* * *

In addition we asked you to explore the possibilities of rerunning previous data with a different program to determine whether time granted by various COR's and claims did actually extend the job. We also asked whether the present Navy program was working to the benefit of the Government and did you feel it was intentional.

(Exh. G-4408).

134. By a letter dated 1 September 1978, appellant requested that the Government approve its major schedule revision (exh. A-254; Finding 4899R-Admitted; 1358A-Disputed: undisputed portion). Its approval request letter stated:

This is our revision as of 30 June 1978, whose final revision was on 28 August 1978, and which was run 30 August 1978. This approval is pursuant to the terms of our “Memorandum of Understanding on Major Schedule Revision”, signed and dated on 14 August 1978.

The Government approved appellant's major schedule revision except for certain minor exceptions in accordance with the Memorandum of Understanding by a letter dated 5 September 1978 (exh. A-254; Finding 4900R-Admitted; 1358A-Disputed: undisputed portion).

135. By a letter dated 20 October 1978, appellant's scheduling consultant suggested to appellant that the consultant go back and re-run the CPM schedule for structural steel, toilet partitions, precast detailing, fireproofing, relite dimensions, precast to structural steel connections, and other claims prior to the 1 June 1978 date required by the memorandum of understanding (exh. G-4411). The letter indicated that it would perform trial runs on the Government computer for COR's and claims after 1 June 1978 but if the results were not favorable would switch to its own computer program (id.). At a meeting held on 25 October 1925, appellant's vice president advised representatives of its subcontractors that appellant wanted the CPM schedule to be realistic and represent the actual work sequences on the job site, indicated that appellant was prepared to hire a full time person to perform this function with the support of its scheduling subcontractor, and sought the assistance of its subcontractors (exh. G-4414).

136. Appellant's scheduling subcontractor again wrote appellant on 15 November 1978 to express some of its frustrations with the job (exh. G-4406).This letter provides in pertinent part as follows:

To date the schedule has been used primarily to get paid, and based on work completed in the field there has been some success here. Although we have worked toward using the schedule to get time on change orders the success has been limited due to:

1. Changing Navy positions.

2. Major unresolved problems such as fireproofing.

3. Changing Navy personnel.

4. Changing SFE personnel.

5. A schedule that wasn't revised adequately while a revision stopped and started for over a year resulting in large amounts of float.

* * *

Now it is my understanding that the policy is to manage the job with the schedule; which I think is not only desirable but necessary, and I am very encouraged that Larry Creasman will be spending more time with the schedule. However, It may be a bit late for the “band-aid” approach.

* * *

What is happening on the hospital project is that two on-site management offices are attempting to finish the job. My feeling is that the project management be handled by a team which is set down in writing so everyone understands where to go for what and that this structure is supported by upper level management.

137. Appellant's scheduling subcontractor testified that the major problem with revising the schedule to meet the official contract completion date was that the Government failed to recognize some undefined change orders (tr. 9/68). No evidence was presented as to what these change orders were nor have we been able to determine from the record that appellant was entitled to any schedule extensions for change orders.

138. Initially, appellant's scheduling subcontractor felt that he could have prepared a revised CPM schedule meeting the contract completion date by accelerating some of the work activities but that he chose not do so as appellant had not so instructed him (tr. 9/73). Subsequently, he changed his testimony, indicating that not enough time remained to compress the work to meet the contract completion date (tr. 9/75-76, 168-69).

139. The Government approved appellant's major schedule revision in September of 1978 after the parties entered into the contract modification described in finding 132 (tr. 9/78, 87-88). This schedule, not included in the record, had a completion date far beyond the contract completion date in the memorandum of understanding (tr. 9/88).

140. The revised schedule of September of 1978 reflected the new logic ordered by appellant's project manager and reflected activity sequences being followed in the field and the status of the job at that time (tr. 2/115-16; 9/89-90, 113; 10/45; 30/85; Warner WT at 41, 71). It contained significant logic and duration changes from the initial contract CPM schedule (Finding 4905R-Admitted).

141. Appellant's delay expert testified that 86 days of contract duration were removed by logic changes and reduced activity durations in the approved, revised CPM schedule in an attempt to have the schedule predict a completion date closer to the one the contract required (Warner WT at 71-72, 80). He took the position that the revised activity durations and sequences were reasonable (tr. 32/9; 34/59-60). He provided no details as to which activities and/or durations.

142. Appellant's scheduling subcontractor testified that the revised schedule was an accurate and reliable plan to complete the remaining work (tr. 9/90, 93, 116-17) as did appellant's delay expert (Warner WT at 41; tr. 30/6-7, 17, 85; 32/9-10, 12-13; 34/51-52, 57-58). Appellant's delay expert testified that the revised schedule float was inaccurate because constructive changes and change orders which had not been settled had not been inputted other than through the increased durations for some activities affected by changes (tr. 30/17-19; 34/52).

143. Appellant followed the sequence and/or logic of the proposed 12 revisions of the CPM as each reflected what was going on in the field (tr. 9/90-92; 32/13). However, the durations of the activities often were longer than those in the schedule (tr. 9/112-13; 32/13-14).

144. After the revised schedule was approved, appellant's scheduling consultant continued to submit load sheets for changes (tr. 9/96).

145. The Government never refused to perform trial runs for change orders on the Government computer (tr. 37/31, 91-92). Appellant performed test runs on the Government's computer over a 2 or 3 month period in 1979 (tr. 10/47, 48). Investigative runs were done for all of the COR Groups as they were being negotiated (tr. 38/160; 42/20-21). Appellant's chief inspector as well as its scheduling subcontractor testified that some of these runs showed an extension of the contract completion date but that the Government would not accept these results (tr. 9/51-52; 10/47). Appellant was provided the output but none of it was used (tr. 9/53). None of the details, including what changes were involved as well as what data were inputted into the CPM schedule by appellant, were included in the record.

146. By a letter dated 17 May 1979, appellant requested an equitable adjustment from the Government for its costs of multiple attempts to make a major schedule revision, contending that the Government's insistence that the revised schedule show a completion date consistent with the contract completion date while insisting on multiple CPM schedule revision attempts caused appellant to engage in much wasted effort for which it is entitled to be compensated (exh. G-4192; Finding 1359A-Admitted & 1385R-Admitted). The letter admits that appellant was responsible for performing the major schedule revision but claims it is entitled to be compensated for the multiple, wasted attempts to perform that revision (exh. G-4192). Appellant only sought its costs and seeks no delay or disruption (id.). The contracting officer denied appellant's claim in Final Decision No. 79-209 dated 20 December 1979 (Finding 1362A-Admitted). A timely appeal was filed with this Board and docketed as ASBCA No. 24578 (id.).

N. Appellant's Delay Expert's Preparation & General Conclusions

147. Appellant's delay expert prepared his analysis of the alleged delay involved in this dispute over a 4 year period (tr. 15, 16). He personally reviewed over 18 file cabinets containing tens or hundreds of thousands of appellant's documents involving this hospital project including the bidding documents, contract drawings, shop drawing submittals, correspondence between appellant and the Government and between appellant and its subcontractors and suppliers, daily contract quality control and other diaries of the work progress, job photographs, testing reports, meeting notes, critical path and a wide variety of other schedules (Warner WT at 19, 23-24; tr. 26/16-18, 63; 27/177). This documentary review also included appellant's change order and claim files (Warner WT at 19-20, 23-24; tr. 26/16, 71-72). He also visited the job site and interviewed many of appellant's and its subcontractors' employees (Warner WT at 14-15; tr. 26/17-18, 163-65; 27/177).

148. Appellant's delay expert determined that all of the 408 days of delay beyond the contract completion date were beyond appellant's control and were excusable delay (tr. 26/13, 37). He found 2 days of delay for labor strikes and that 55 days of delay for fireproofing were appellant's responsibility but that these 55 days were concurrent with other delays which were the responsibility of the Government (tr. 26/13-14). Accordingly, he opined that appellant was entitled to 351 days of compensable delay (tr. 26/14, 37, 174-76). Finally, he was of the opinion that there were impact and/or inefficiency damages (tr. 26/15).

149. Appellant's delay expert testified that a delay expert should be able to identify all the facts upon which he relied in forming his opinion and that additional or erroneous data could affect his opinion (tr. 26/81-82).

150. No attempt was made to correlate or test appellant's bid to any of the contract CPM schedules (tr. 26/140). No evidence was presented as to what schedule appellant planned to follow at the time it submitted its bid.

O. Appellant's Expert's Revised Schedule - 13 May 1977 to 29 September 1978

151. Although the Memorandum of Understanding required appellant to use the original contract CPM schedule to evaluate delays where the notice to proceed was issued prior to 1 June 1978, appellant's expert determined that the original schedule was not accurate because appellant had changed the sequence of fireproofing, mechanical piping, and HVAC piping activities in early 1977 and he instead created a new one commencing in May 1977 by utilizing the agreed upon revised September 1978 schedule with the activity sequences as agreed to by the parties (Warner WT at 43-45, 47, 50, 53-54, 65, 77, 119-20, 192-93; tr. 30/26, 84; 34/65-66). He removed all performance progress from that schedule so that it resembled an initial schedule (Warner WT at 46-47; tr. 30/14-19, 26). He studied the original schedule and added activities which had been completed prior to the September 1978 Revised Schedule but were still to be performed after 13 May 1977 utilizing the durations from the original schedule (Warner WT at 49; tr. 30/85). He first determined that the percentage of completion for activities agreed to by the parties for progress payment purposes was accurate through September of 1978 (Warner WT at 46, 50-52, 56, 64, 65, 67, 69, 75, 119, 192-93; tr. 30/33, 44-46). He then added back the progress payment percentage of completion agreed upon by the parties for the computer runs of 13 May 1977, 13 July 1977, 24 October 1977, 16 December 1977, 25 March 1978, 26 May 1978, and 28 July 1978 (Warner WT at 45-46). The first was a new revised CPM schedule of 13 May 1977 (Warner WT at 46; tr. 28/74-75). Each of the remainder was a contemporaneous CPM update of that newly created 13 May 1977 schedule (Warner WT at 46).

152. Appellant's expert opined that his 13 May 1977 revised CPM schedule accurately reflected the status of the project at that time and provided a reasonable prediction of a contract completion date (Warner WT at 68-70; tr. 28/158; 29/109, 113-14; 30/7, 9, 23-24, 82-83). He also took the position that the work sequences were reasonable as were the durations of work activities (tr. 29/109-10, 112-13; 30/24). However, he claimed the schedule had inaccurate float because the change orders and constructive changes which had not been settled by the parties had not been inputted other than as included in the percentage of completion for progress payment purposes (tr. 28/158; 29/102; 30/7-12; 34/41-42). He also took the position that the updates to his 13 May 1977 revised CPM schedule reasonably predicted the contract completion date but that the float and work activity durations depicted in them were erroneous due to the failure to input constructive changes and non-settled change orders (tr. 30/34-36, 77, 82-83; 34/41-42; but see tr. 30/67-70, 77-78 where he opines that the durations were reasonable). He claims that he confirmed this with an analysis of his as built (tr. 29/110-11; 30/39). However, no details were included in the record.

P. Appellant's Expert's Summary of CPM Schedules

153. Appellant's expert prepared a summary of the predicted completion dates from computer CPM runs run throughout the contract performance period to determine when delays occurred (exh. A-447; Warner WT at 52, 73). He utilized the original CPM schedule along with update runs from the commencement of contract performance on 2 November 1976 until 13 May 1977 (tr. 27/157; 57/104-05). For the period of 13 May 1977 through 29 September 1978, he used the revised 13 May 1977 CPM schedule he created plus the contemporaneous CPM updates he similarly created from the 13 May 1977 schedule (tr. 26/31-33; 28/75, 164). He relied upon the revised CPM schedule agreed to by the parties from 29 September 1978 until the date of beneficial occupancy on 25 January 1980 (Warner WT at 74-75).

154. Appellant's expert's summary of CPM schedule runs is in chart form and indicates the predicted completion date on the vertical axis with the computer run date shown on the horizontal axis (exhibit A-447; Warner WT at 49-50; tr. 26/28-29; 30/29). Each dot on the schedule indicates a forecasted contract completion date for a computer run of an updated schedule (tr. 26/30) The amount of delay for a given period is the difference between the predicted completion date at the end of the period from the predicted completion date at the beginning of the period (Warner WT 52, 73, 118). Appellant's expert opined that this method of quantifying the delay was accurate (Warner WT at 73).

155. Appellant's expert divided the project into 3 periods (Warner WT at 115; tr. 26/21). Period 1 includes the excavation, foundations, and structure of the hospital including structural steel and concrete (Warner WT at 116-17; tr. 26/21, 22). It begins on 4 June 1976 which is the start of contract performance and ends on 13 May 1977 which is the date of commencement of appellant's expert's revised schedule (Warner WT at 116-17; tr. 27/59-60). The original contract CPM schedule at the commencement of the contract had a predicted contract completion date of 4 December 1978 while appellant's expert's revised schedule of 13 May 1977 predicts a contract completion date of 30 January 1979 (exh. A-447; tr. 26/29; 29/77; 30/29). Appellant's expert computed the delay for period 1 as being 52 days (Warner WT at 117-18; tr. 26/22; 28/42; 29/77, 84-85, 89, 91-93; see finding 180, infra).

156. Period 2 includes the rough in of the non-enclosed building, fireproofing of structural steel, as well as the enclosure of the building with precast concrete panels and commences at the end of period 1 on 13 May 1977 and runs to 24 October 1977 (Warner WT at 116-17; exh. A-447; tr. 26/22-23, 29/75). The revised, updated, CPM schedule as of 24 October 1977 predicted a contract completion date of 7 April 1979 (exh. A-447; tr. 29/78). Comparing this 7 April 1979 predicted completion date with the 30 January 1979 one predicted for the end of period 1, appellant's expert computed the delay for period 2 as being 64 days (tr. 26/22, 23; 29/78-79, 84; see finding 184, infra).

157. Period 3 includes all of the finish work after the building was enclosed which commences with the completion of period 2 and ends with the date of beneficial occupancy on 21 January 1980 (Warner WT at 116-17; tr. 26/22; 30/128). Comparing this 21 January 1980 completion date with the 7 April 1979 date predicted at the end of period 2, appellant's expert computed the delay for period 3 as being 292 days (Warner WT at 179; 26/23; 31/20-22).

158. Appellant's expert took the position that the CPM schedule computer update runs were not accurate to evaluate change orders and constructive changes because prior changes had not been inputted when they occurred due to the Government's refusal to input them (tr. 34/41-42). He claimed these schedules could not be used to determine the criticality of changes because the failure to input changes made the float inaccurate (tr. 34/52-55, 58-59).

159. He opined, however, they were accurate as a measurement of delay because they properly reflected the status of the job due to the inclusion in the computer CPM runs of the percentage of completion data which would appear to include changes as a part of these activities which allegedly had extended durations due to the changes (tr. 29/101; 30/12, 24-25, 30, 32, 41; 34/51-52). He claimed that he verified this with his as built schedule and contemporaneous documents but did not identify the contemporaneous documents nor show how he did this with the as built (tr. 29/100; 34/51-54). He did not explain why the schedule would accurately predict completion dates when alleged changes not yet performed were not included in the CPM schedule other than that the critical paths were correct for each of these computer runs which he appears to have admitted (tr. 29/101; 34/55). This would seem to imply that the changes and claims at issue in this appeal were not on the critical path which in turn would indicate that they caused no delay and/or disruption.

160. None of the CPM runs utilized in appellant's delay analysis include the change orders and constructive changes at issue except for their inclusion in the percentage of completion for progress payment purposes for the activities under which that change would have been performed. Appellant's expert claims that he could not input these changes because the records available to him did not include data indicating when the changed work began or ended in almost all cases. He appears to excuse appellant's failure to maintain this data by alleging that the Government refused to input this data in the CPM schedule when appellant felt it was proper to do so (tr. 34/40-41).

161. General testimony was presented that appellant typically did request a time extension of a specific number of days for an activity involving a change order or constructive change but its expert did not recall if appellant ever requested a specific extension of the contract completion date but claimed that appellant did make general allegations that the project was being delayed (tr. 26/85-88, 90-91). However, we are surprised and find it highly significant that appellant has failed to include in the record documentary evidence of its requests that the Government input change data into the CPM schedule, what, if any, information was included in these requests, and when, if any, these requests that change data be inputted into the CPM were submitted.

162. Appellant's delay expert admitted that it was appellant's responsibility under the contract to prepare load sheets containing the dates and durations of activities (tr. 26/131-32, 136, 142-43, 147). In light of the contract requirement that the contract CPM schedule be used to determine extensions to the contract completion date and that appellant furnish this data in the form of load sheets to the Government, appellant's failure to submit these load sheets and maintain records of when the change and/or claim work were performed is not excusable.

Q. Appellant's Expert's As Built Schedule

163. Appellant's expert's as built schedule is a graphical, day to day, history of what occurred on the project based upon the project documentation of both parties (exh. A-440; Warner WT at 9, 18, 21; tr. 26/18-19). It was the primary source upon which appellant's expert built his opinion (Warner WT at 35; tr. 26/19, 34). The primary sources appellant's expert utilized in preparing this schedule were appellant's daily reports and its contract quality assurance reports as well as the Government's inspector's reports (Warner WT at 89-90; tr. 26/20; 27/13; 29/58-59). The secondary sources included reports of subcontractors, testing labs, cost earning reports, and a daily summary of the erection of the precast panels (Warner WT at 90).

164. Appellant's expert testified that the daily reports he used to prepare his as built were often inconsistent (tr. 27/113). He would study the available data and decide which source was correct and place that data on the as built (tr. 27/113-17).

165. The horizontal axis of appellant's as built schedule is based upon time and marked by year, month, week, and day (exh. A-440; tr. 26/19; 27/11-13). The vertical axis of this as built schedule shows each level of the hospital from the service level through the penthouse on a level by level basis but with some minor exceptions not the various locations on each level (exh. A-440; tr. 26/19; 30/48-49, 53-54). A solid line represents work done on an activity with particular days noted underneath the line (exh. A-440; tr. 26/20; 27/14). Blank spaces indicate that no work was performed (tr. 27/14). These gaps are not necessarily due to any of appellant's delay issues nor are they marked as to what caused the gaps (tr. 27/22-23). Subordinate codes are marked on portions of each line which are abbreviations identifying what work is being done (exh. A-440; tr. 26/20-21, 97, 99; 27/14-17). The as built schedule was a summary of the reports which would only be drawn on the schedule if the work could be described with an abbreviation (tr. 33/51-52).

166. In the absence of a schedule or other standard for performance, the as built does not depict a critical path, float, or critical delay (tr. 26/195; 27/18-20, 24, 28-29; 28/159-64). It does not depict how much work was done only that some was done on the date entered (tr. 30/43). It does not depict the contract completion date (exh. A-440; tr. 27/19). It does not list the original contract schedule, the revised contract schedule, or any dates upon which work was planned in the CPM schedules (tr. 27/25-26). It depicts that work was done (tr. 27/25, 43) but does not indicate what manning or manpower appellant used to accomplish that work (tr. 27/38-39) or indicate what subcontractor performed that work (tr. 27/39). It does not indicate whether the work conformed to the contract (tr. 27/43) or how efficiently it was performed (tr. 27/50-51). It does not indicate whether appellant's workers were standing by if they performed no work (tr. 27/42).

167. Appellant's expert's as built with some minor exceptions does not segregate change order or claim work from base contract work (exh. A-440; tr. 27/39, 50; 29/126-27; 32/103). The exceptions include instances such as the removal of gypsum board, fireproofing, carpet, concrete, and existing roof as well as repairing windows (tr. 27/40-42, 45-46). However, appellant's expert testified that with respect to even these instances the work might be base contract work and that to determine the type of work the underlying daily report had to be checked (tr. 27/42, 46-47, 112; 33/51-52). No evidence was presented as to what the daily reports indicated as to whether these items of removal and/or repair were base contract or change and/or claim work.

168. Generally, appellant's expert was unable to identify with specificity when changed work or work for which claims were filed was performed because the data was not available from the project documentation (Warner WT at 93,103, 152, 195-96; tr. 26/24; 27/39; 29/123; 32/29, 45-46, 88, 103-04). However, he was able to determine generally when it was done by examining the base contract work related to it (tr. 26/24). Appellant's expert was unable to determine from appellant's records when the changed work for the sterilizers (COR D) was started (tr. 28/156). In addition, he was unable to determine what exact days the concrete work involving electrical rough in was delayed, although he had a rough estimate of March or April 1977 (tr. 27/85-87). Nor did he determine when the change order or claim work involving the installation of precast panels was performed (tr. 27/121-23, 133, 136; 28/166-68, 171-72, 176).

169. Appellant's delay expert prepared an exhibit which summarized the original contract CPM schedule which states at its lower right hand corner that it is based upon early start and finish dates rather than the late ones (exh. A-443; tr. 26/26, 149-50). It is a bar chart which does not depict the relationship between activities (tr. 26/149). It was not used by appellant's delay expert in his analysis (tr. 26/149).

170. A summary as built was prepared by appellant's delay expert which summarized his as built schedule in the form of a bar chart (exh. A-444; tr. 26/26-27, 152). It does not show the logical relationships of the work activities (tr. 26/152). It does not identify any specific causes of delay (tr. 26/152). Appellant's delay expert did not base his analysis upon this (tr. 26/53-54).

171. Appellant's delay expert prepared a summary as planned/as built which was basically a summation of the information on his summary as built and summary as planned so that the information could be compared (exh. A-445; tr. 26/28; 27/10-11). It does not depict any delay as neither of the exhibits it summarized did so (tr. 26/155).

R. Appellant's Delay Expert's Method of Delay Analysis

172. Appellant's delay expert did not perform a CPM analysis to determine the cause of delays (tr. 27/74, 156; 28/45-46, 54, 157-58; 29/93-94, 96, 99; 30/66). His position was that he could not because the float in the CPM schedules was not accurate (Warner WT at 73; tr. 29/93-94, 96, 99; 34/52-54), and could not have been unless the schedules had been corrected contemporaneously (Warner WT at 79, 82; tr. 34/67-68). He admitted that many activities that he found to be critical had float on the original contract CPM during the period prior to May 1977 (tr. 28/161-62) and on his revised CPM schedule after May 1977 (tr. 28/162). He did not indicate why he could not have gone back to input the proper information, and rerun these schedules as part of his elaborate and obviously expensive delay analysis.

173. Apparently, appellant's delay expert's problem in correcting and then using the CPM schedule was the lack of data as to when the change and claim work was performed. Because he lacked this information, his delay analysis for all change orders and claims including determining the criticality of an activity and quantifying delay was based upon his as built (Warner WT at 21, 52, 65, 67, 91, 120-21; tr. 26/21, 34; 27/23-24, 75-76, 155; 28/43-44, 47-48, 94; 29/58, 60-61, 83-84, 129; 33/23; 34/53). However, he testified that the ultimate source as to what happened were the daily records of the project and that to be sure they had to be examined (Warner WT at 121; tr. 27/112; 28/41-42, 44; 33/54). Almost none of these daily reports were included in the record. Therefore, the data on appellant's delay expert's as built schedule could not be verified and properly interpreted by the Board.

174. To perform his as built analysis, appellant's delay expert first assumed that appellant's documents were accurate as to what happened (tr. 32/84). He utilized the consolidated issue files for change orders and constructive changes in evaluating delays and disruptions by creating a chronology (appellant's expert's period of influence) and verifying that chronology against his as built (Warner WT at 52, 65, 67, 91, 99a, 100a, 105-06; tr. 27/70-75, 155-56; 29/15, 41-42; 32/105-07). He also examined correspondence and meeting minutes from the job site (tr. 32/105-07, 115). He admitted that not all of the interruptions on appellant's as built schedule were critical delays (tr. 32/145-46).

175. Appellant's delay expert admitted that appellant's proposed findings of fact do not contain enough data to support his opinion and that additional facts were necessary (tr. 26/58-59). In addition, none of the consolidated change order files were included in the record nor did appellant's delay expert refer to any specific document in them so that his analysis could be verified. In addition, he did not refer to specific correspondence and meeting minutes in presenting his analysis. Thus, we were unable to verify exactly how he utilized these documents other than in a general, undefined way.

176. Appellant's delay expert claimed that he did not need to know when appellant planned to perform work to determine whether that work was critical (tr. 29/90-91). He instead looked at each activity to see what progress would be reasonably anticipated and what actually happened based upon his as built schedule (Warner WT at 101; tr. 30/68-70). He searched for either (a) interruptions in work with stoppage and a return to that work or (b) for a slowing of progress (Warner WT at 101; tr. 32/84, 101, 114-15, 33/78-79). He also made a determination as to whether a critical delay item was performed later than scheduled to the extent that he could (tr. 33/61-62). The “as planned” benchmark, if one was used, was the approved CPM schedule, any contemporaneous record indicating a plan to start, and/or a discussion with a knowledgeable party (tr. 33/63).

177. Appellant's delay expert in particular used the original CPM as a consideration but not as the primary source for the structural steel, concrete, and rough in issues during period 1 (tr. 33/63-68, 70; but see 29/118-19). For example, he did not use the original CPM schedule as the baseline for evaluating structural steel delays but instead looked at appellant's complaints about the Government's late returns of submittals and used his professional judgment (tr. 30/99, 101, 110-11). He also admitted that the toilet dimensional problems for plumbing rough in (COR 207) would not be critical on the original CPM and in a similar fashion he was not sure whether the concrete work on the mechanical level was critical (tr. 33/67-68). Basically, he examined his as built to see if work which had to be performed prior to the change order work had been completed and suspected a delay if the change order work did not immediately follow (Warner WT at 92; tr. 33/78).

178. Appellant's delay expert was of the opinion that the updated, revised approved CPM was not an appropriate baseline for period 3 change orders and claims (tr. 33/70-71). He used bar charts or references in correspondence and/or meeting notes as his base line as appellant used a number of different schedules to manage the project (Warner WT at 101-03; tr. 33/72-73). He could not identify what baseline he used for any period 3 change order or claim with any degree of detail (tr. 33/71-73). None of these baselines were specifically referred to by appellant's expert or any other witness and we have been unable to find them in the record. Basically, appellant's delay expert used his judgment and examined his as built schedule as his baseline along with other job documentation as described above.

S. Appellant's Expert's Delay Periods 1 & 2

179. Appellant's delay expert opined that progress on the project was relatively linear during periods 1 and 2 and that he did not use the concept of spheres of influence which he subsequently used for period 3 (tr. 26/180-81). He indicated that he analyzed the issues during this period separately and individually (tr. 26/183-84). He followed no general rules (tr. 26/184). We have analyzed the issues appellant's delay expert found caused delay during these periods in great detail both as to the evidence in the record as well as his analysis of that evidence in our prior findings, supra. The findings that follow merely summarize this analysis as well as add some necessary details.

180. Appellant's delay expert determined from his summary of CPM schedules that 52 days of delay had occurred during his period 1 which ran from 4 June 1976 through 13 May 1977 (finding 155). He confirmed this measurement of the delay through his as built by determining that concrete activities concluded 52 days later than indicated by the early finish date on the original CPM schedule (tr. 27/144, 148, 152-53; 28/19-20, 22-23, 49-53).

181. The erection of structural steel was determined by appellant's expert to have been delayed in starting by 32 days and to have been disrupted during erection by an additional 16 days (findings 28, 29). He also determined that changed work contained in Modifications Nos. 2 and 9 caused 11 days of delay but that this delay was concurrent with the delays for structural steel (Warner WT at 121-25, 127-28; tr. 26/168-69; 27/99-100, 103-04, 128-30, 159).

182. We have determined in a prior decision, which was affirmed on appeal, that the alleged causes of delay for the structural steel were appellant's responsibility (finding 30). Accordingly, 48 days of the 52 days of delay found by appellant's delay expert are eliminated, leaving only an alleged 4 days of delay.

183. Appellant's delay expert concluded that problems in obtaining rough in dimensions for toilets (COR 207) and electrical and telephone outlets (COR 125) as well as shop drawings delays concerning the reinforcing steel and curbs for the mechanical level (COR 109) combined to cause the remaining 4 days of delay (tr. 26/185-87, 91-92; 27/150-51, 63-66, 76, 143-45, 150-51; 34/10-12). He opined from some undefined area of his as built schedule that these 4 days were in part concurrent with respect to the three COR's but admitted he could not determine when they occurred (tr. 26/186-88, 190-96; 27/76, 87, 147). He further claimed that these concrete delays were little disruptive pieces occurring throughout the concrete work (tr. 27/151-52). Our prior findings reject this for lack of evidence as to exactly where and when the varying items of work were scheduled to be performed and were performed (findings 36, 39, 49-51). Consequently, we have found no additional compensable or excusable delay during appellant's period 1.

184. Appellant's delay expert determined from his summary of CPM schedules that 64 days of delay had occurred during his period 2 which ran from 5 May 1977 through 24 October 1977 (finding 156; Warner WT at 177). He further subdivided his period 2 into 3 subperiods with the first ending on 30 June 1977 which is the date of the Government's issuance of its stop work order for COR C (finding 53; Warner WT at 157). His second subperiod ended 31 August 1977 which was the date he opined that the fireproofing of structural steel ceased to be a critical activity (Warner WT at 161). The third subperiod ended on 24 October 1977 which was the end date for period 2 (finding 156). For the purposes of this opinion, appellant's expert determined that the project was delayed during subperiods 1 and 2, the period when he opined fireproofing was critical, a total of 55 days and 9 days during subperiod 3 (Warner WT at 176-77).

185. Appellant's expert opined that the claims involving fireproofing of structural steel, precast concrete panel/structural steel tolerances, and relites as well as the change orders for door frames and partitions and sterilizers known as COR C and D were each concurrent in part with one of the other 4 during period 2 (Warner WT at 156). As we have previously indicated, his opinion was that fireproofing was concurrent with all of the others during subperiod 1 (Warner WT at 157) and with the precast concrete panel/structural steel claim as well as the change orders for sterilizers known as COR C and D during subperiod 2 (Warner WT at 172). Finally, he opined that the change orders for door frames and partitions and sterilizers also known as COR C and D were concurrent during subperiod 3 (Warner WT at 174).

186. We have determined in a prior decision, which was affirmed on appeal, that the alleged causes of delay for appellant's problems with relites was appellant's responsibility (finding 94). In addition, our analysis of the claims involving precast concrete panel/structural steel tolerances as well as the change orders for door frames and partitions and sterilizers known as COR C and D was that we were unable to find any overall project delay. Accordingly, we have been unable to find any additional delay for appellant during appellant's expert's period 2.

Appellant's Expert's Delay Period 3

187. Appellant's delay expert determined from his summary of CPM schedules that 292 days of delay had occurred during his period 3 which ran from 24 October 1977 through 21 January 1980 (finding 157; Warner WT at 177-78). He used the change order and claim issue files, his as built schedule, and the updated CPM schedule to select the critical delay issues causing delay (Warner WT at 180). He determined that the large number of claims and their wide dispersion throughout the project made it difficult to make his selections (Warner WT at 180-82, 197). He made his evaluation based upon whether the issue delayed the ability of appellant to perform the activities affected as planned (Warner WT at 180). He did not identify with any specificity how he determined from his as built schedule that a critical issue delayed the overall project, what schedule he used to evaluate delays for each critical issue, and what information he relied upon in the change order and claim issue files.

188. Appellant's expert prepared cloud charts which were floor plans of the hospital (exh. A-456; Warner WT at 200-01; tr. 26/35-36). They depict the location of changes which were marked with a color code (exh. A-456; Warner WT at 201-02; tr. 26/35, 121). However, this cloud chart does not show what impact changes would have on an area because it covered the entire performance period rather than being time oriented (Warner WT at 203; tr. 26/35-36).

189. From the analysis described in finding 187 including the use of the cloud chart described in finding 188, appellant's delay expert determined that 45 critical delay issues were the cause of the 292 days of delay during period 3 (Warner WT at 179; tr. 26/23; 31/22; 32/60; 34/18-22). Forty three were change orders and 2 were strikes (tr. 31/23). He determined that all 45 issues caused the 292 days of delay in a combined fashion rather than that an individual issue caused a particular delay (Warner WT at 178-79; tr. 26/23; 34/20-24). Because appellant's expert did not discuss the underlying facts involving these 45 delay issues, we have not made detailed findings of fact concerning them but have carefully studied the proposed findings and briefs of the parties in the preparation of this opinion.

190. Appellant's delay expert usually was unable to determine when change order and claim work was performed during period 3 after building enclosure (Warner WT at 195-96; tr. 27/20; finding 4583A-Disputed). Instead of determining what activities were critical at a given time, he opined that from an analysis of his as built that the numerous architectural finishes being performed on levels 2, 3 and 4 of the hospital were the critical activities (Warner WT at 91, 177-78, 182-83, 186; tr. 27/20; 29/65-71; 31/77; 32/143). However, he admitted that not all architectural finishes being performed in this area were critical at this time (tr. 29/50-52, 69; 32/144).

191. Appellant chose levels 2 through 4 as the critical areas because they had more complicated work and many areas were unique (tr. 34/26). He also included as critical issues some that took place on the service level and first floor (tr. 31/77; 34/26). These floors were chosen because they had numerous changes throughout (Exh. A-456; tr. 34/34-35, 37-38). He did not include the tower because these were the patient rooms which were all very similar and less complex to construct (Warner WT at 91, 184-85; tr. 34/26).

192. Appellant's delay expert used the concept of an administrative sphere of influence as a part of his delay analysis because of his inability to determine when the changed work was performed (Warner WT at 192, 196, 198; tr. 57/36-38). An administrative sphere of influence is a period of time commencing with the date when a problem on the project arose and ends with the date when performance could proceed after the resolution of the problem (Warner WT at 103-104; tr. 26/24-25, 48-49, 182; 30/134). It normally starts with appellant's request for information and ends with the resolution of the problem, agreement by the Government that it is compensable, and the Government's issuance of a notice to proceed (tr. 30/132-33; 31/69). Appellant's delay expert did not testify as to how he determined the end date of each sphere of influence which primarily has as its source one of the change order or constructive change files (tr. 32/15-17, 25-26). It could end with an estimate of a period of performance such as the P6 Fixture Connections (COR 267) and the deletion of door frame wall (COR 275) (tr. 30/136; 32/132-35, 138). It almost never included the period of performance because this information was not available in the source documentation (tr. 32/88). Sometimes exact dates were not known (tr. 30/136-37; 31/41-42). Some do not have a source document supporting them (tr. 30/137; 31/42). The sphere of influence was not limited to periods when follow on work was restrained from proceeding because it is a period of potential effects (tr. 31/69).

193. As described infra, the spheres of influence for each of the 45 alleged critical delay issues do not portray when the work was done but instead identify a period of disruption from the time when the problem was first identified until the time when it was resolved and an authorization to proceed with the work was issued, representing an alleged period of time when the contractor could not advance the work under the influence of that issue. A chart of the Period 3 delays determined by appellant's delay expert which identifies his determination of their sphere of influence as well as the days of delay he assigned to them is below:

(Finding 4581A-Disputed: undisputed portion; Warner WT at 189-91; tr. 26/24-25; 31/40-42).

194. Appellant's expert divided period 3 into 11 subperiods because his period 3 was more than 2 years long (tr. 31/19; 32/54; 34/13, 18). Each of these subperiods was bounded by a date where a computer run of the updated, revised CPM schedule had been made (tr. 31/65). The end dates for each subperiod were 26 March 1978, 28 July 1978, 23 February 1979, 30 March 1979, 27 April 1979, 25 May 1979, 29 June 1979, 27 July 1979, 28 September 1979, 30 November 1979, and 21 January 1980 (tr. 31/19, 20). The delay during each subperiod was the difference between the predicted completion date at the end of the subperiod and the predicted date at the beginning of the subperiod utilizing appellant's summary of CPM schedules (exh. A-447) (Warner WT at 194; tr. 31/23-24, 29-30). Appellant's delay expert admitted that if the computer runs for updates to the revised CPM on 16 December 1977, 26 May 1978, 29 September 1978, 29 December 1978, 31 August 1979, and 26 October 1979 had been used some improvement in the predicted completion dates would have occurred (exh. G-10006; tr. 31/30-38, 63-65; 34/14-15). He did not use these runs because his analysis did not indicate that progress ever improved during period 3, making the use of these updates misleading (tr. 34/15-18).

195. A purely mathematical method was utilized to allocate delay during period 3 (tr. 31/52-53; 34/18-19). Any of the 45 changes and claims which had any portion of its period of influence during a subperiod was considered active during that subperiod (Warner WT at 187-88; tr. 31/42-44; 32/54). The total numbers of claims and changes which were active for each period were then determined (tr. 31/52-55; 32/54-55). This total was then divided into the delay for that subperiod to allocate the delay to the claims and changes (Warner WT at 194; tr. 31/52-55; 32/55). The delay for each claim and change was the total for that claim or change over all of the subperiods (Warner WT at 194-95). None of the details of this mathematical allocation were included in the record.

196. Appellant's delay expert felt that the purely mathematical allocation provided an abnormal or unreasonable number of days of delay for the change order for the additional coat of paint (COR 248) and adjusted the results by reallocating 90 days of delay to other issues (Warner WT at 195; tr. 32/61; 34/19). He first adjusted the allocated delay for the two whirlpool showers (COR 296) from that mathematically allocated to 19 days (tr. 32/67-69). He then allocated one day of delay to each of two strikes (tr. 32/62-64). The results of appellant's delay expert's calculations are listed in the foregoing finding. Appellant's delay expert admitted that there were several instances where a portion of a sphere of influence fit only in a portion of a subperiod where improvement in performance rather than delay was shown (tr. 31/59, 65). However, he opined that it would be inappropriate to divide a subperiod into these sub-subperiods where improvement in progress was shown (tr. 31/67-68).

197. We have been unable to find that appellant was delayed during period 3. We have no evidence of what schedule appellant was following for each critical issue, no specific evidence as to how appellant determined that each specific issue was critical, and no specific evidence of how the performance of the activities affected by each critical issue caused critical delay.

U. Appellant's Delay Expert's Analysis of Inefficiencies

198. Appellant does not seek labor inefficiencies which were a part of the direct costs which have been agreed to by the parties (Appellant's brief at 580-81; appellant's reply brief at 22). These inefficiency costs were those directly caused by the issuance of the unilateral change orders at issue (id.). However, appellant does seek additional compensation for the “indirect inefficiencies” or the cumulative impact of these combined changes on the project as a whole (id.). Appellant's delay expert was of the opinion that all change order delay issues caused these cumulative labor inefficiencies with respect to the unchanged or base contract work as well as in the performance of the changed work (Warner WT at 214; tr. 33/8-9). He also found 22 other non-delay issues caused these types of labor inefficiencies during period 3 (tr. 33/9). The non-delay issues he found were as follows:

ISSUES PRODUCING ONLY INEFFICIENCY

TOTAL . . . . . . . . . . . . . . . . . . 22 INEFFICIENCY ISSUES

(Finding 4559A-Disputed: undisputed portion).

199. Appellant's delay expert based his inefficiency analysis primarily upon his as built schedule (Warner WT at 91). He would examine what related unchanged or base contract work would be impacted by the change (Warner WT at 92).

200. Appellant's expert opined that the issues causing labor inefficiencies caused both inefficiency in performing the changed work as well as inefficiency to the unchanged contract work (Warner WT at 214; tr. 33/10-12). He indicated that the inefficiency in the changed work included mobilization/remobilization and standby time (tr. 33/12, 14). His testimony continued that the inefficiency to the unchanged work including stacking of trades or crowding as well as storage of unused materials in areas where other work was to be performed (tr. 33/12-14). However, his testimony was very general and conclusionary with little details of the effect of the changes on either the changed or unchanged work (tr. 33/13). Again, he relied upon unidentified change and/or constructive change files without any identification of the specific information he used to form the basis of his opinion (Warner WT at 207).

201. Appellant's delay expert admitted that you cannot determine whether there was disruption if you do not know when the changed work was performed (tr. 32/103-04). Other than the inefficiency costs directly caused by the change orders and informally settled by the parties (app't's brief at 580-81; app't's reply brief at 22-23), we have been unable to determine that appellant has met its burden of proving that it is entitled to any additional recovery for “indirect inefficiencies”, “project impact”, and/or “cumulative inefficiencies” by showing that the combined unilateral change orders proximately caused such inefficiencies and/or impact.

DECISION

I. Delay

Appellant seeks an equitable adjustment under the changes clause contending that 58 claims caused 351 days of compensable delay and that it is entitled to an additional 152 days of excusable delay under the Default clause. It points to the Changes clause which provides for an equitable adjustment “if any change under this clause causes an increase or decrease in the Contractor's cost of, or the time required for, the performance of any part of the work under this contract” (emphasis added; finding 3). Thus, it is well established that appellant must prove that the changes caused some increase in the time required for performance. Wunderlich Contracting Co. v. United States, 173 Ct. Cl. 180, 351 F.2d 956 (1965). In this regard, the Court stated in the Wunderlich Contracting case:

A claimant need not prove his damages with absolute certainty or mathematical exactitude. It is sufficient if he furnishes the court with a reasonable basis for computation, even though the result is only approximate. Yet this leniency as to the actual mechanics of computation does not relieve the contractor of his essential burden of establishing the fundamental facts of liability, causation, and resultant injury. It was plaintiffs' obligation in the case at bar to prove with reasonable certainty the extent of unreasonable delay which resulted from defendant's actions and to provide a basis for making a reasonably correct approximation of the damages which arose therefrom. Broad generalities and inferences to the effect that defendant must have caused some delay and damage because the contract took 318 days longer to complete than anticipated are not sufficient. . . . It is incumbent upon plaintiffs to show the nature and extent of the various delays for which damages are claimed and to connect them to some act of commission or omission on defendant's part.

(citations omitted; 173 Ct. Cl. at 199-200, 351 F.2d at 968-69).

The contract required that appellant create, maintain, and use the CPM method of scheduling to plan and perform the work under this contract (finding 17). Appellant's expert did not use the CPM method of scheduling to analyze the delays, disruptions, and inefficiencies under this contract (finding 172). He instead used an as built analysis as described in findings 173 and 174. Appellant contends this is proper and that its expert's analysis followed the standards set forth in J.W. Bateson Company, Inc., ASBCA No. 27491, 84-3 BCA ¶ 17,566. As appellant points out, the Bateson decision involved a contract which required the use of CPM scheduling to plan and perform the work but this Board found that the CPM schedule was inaccurate and unusable due to the actions of the appellant. In spite of this, we found in Bateson that appellant had proved compensable delay by demonstrating what had happened during performance. Appellant claims that Bateson authorizes an as built delay analysis for these appeals.

Unlike the Bateson decision, this contract states specifically:

1.6 Time Adjustments: Float or slack is defined as the amount of time between the early start date and the late start date, or the early finish date and the late finish date of any of the activities in the CPM Schedule. Float or slack is not time for the exclusive use or benefit of either the Government or the Contractor. Extensions of time for performance required under the Contract General Provisions entitled “Changes”, “Differing Site Conditions”, “Termination for Default - Damages for delay, Time Extensions”. or “Suspension of Work” will be granted only to the extent that equitable time adjustments for the activity or activities affected exceed the total float or slack along the channels involved. [Emphasis supplied]

(Finding 17).

Appellant's sole excuse for not using the CPM method of scheduling used throughout contract performance at least for progress payment purposes is that it is not accurate. The parties do agree that it became inaccurate early in May 1977 when appellant resequenced the work on the project due to the fireproofing problems appellant had (finding 83, 87, 115, 116, 118). The parties then agreed to a revised CPM schedule in September of 1978 (finding 139). As a result of having two different CPM schedules, they entered into a memorandum of understanding relating to these two schedules prior to the approval of the revised one by the Government (finding 132). Their agreement provided as follows with respect to changes and time extensions:

d. The parties will continue to negotiate change orders and modifications, including applicable time extensions as follows:

i. On change orders wherein the notice to proceed was issued prior to 1 June 1978, time extensions, if any, will apply only to the official contract

completion date, not to the scheduled construction finish date. The original contract CPM schedule will be used to determine if a time extension applies to these cases.

ii. On change orders wherein the notice to proceed is issued subsequent to 1 June 1978, time extensions, if any, will apply to both the contract completion and scheduled construction finish dates. The Major Schedule Revision CPM will be used to determine if a time extension applies to these cases.

(Id.).

Even after both parties recognized that the original CPM schedule was inaccurate, the parties clearly confirmed in their memorandum of understanding that their agreement was that under the terms of this contract the CPM method is the only valid method to determine equitable time extensions as a part of change order delays. Appellant's principal argument against the validity of this method was the refusal of the Government to input changes into the CPM schedule until the parties had negotiated change order modifications.

Our findings indicate only one specific instance during contract performance where appellant protested in writing to the Government that the CPM schedule was inaccurate because of the Government's refusal to process change orders into the CPM (findings 127, 128). As indicated in our findings, we were unable to verify that appellant's one and only written protest was valid because of a lack of evidence (finding 128). If appellant's charges were true, we would have expected numerous protest letters from appellant as well as copies of appellant's requests that change order information be inputted into the CPM schedule which most likely would have contained the missing information.

Appellant was not slow in asserting its rights in other matters as is exhibited by the massive documentation in this appeal. Accordingly, any problem with the CPM was appellant's responsibility, making reliance on Fortec Constructors v. United States, 8 Cl. Ct. 490 (1985) and Titan Pacific Construction Corp., v. United States, 17 Cl. Ct. 630 (1989) inapposite. The Fortec Constructors case excused a contractor from utilizing a clause similar to the one at issue when the Government's improper actions rather than those of the appellant caused the CPM to be inaccurate. The Titan Pacific Construction case excused the Government from using this clause when the appellant in its performance was not following the CPM schedule.

In light of the massive effort of appellant's delay expert (findings 147), appellant clearly could have reconstructed and inputted the change order information at the proper times into the CPM schedule had appellant prepared and maintained proper records as to when change order and constructive change work had been performed (finding 167). Appellant's failure to prepare and maintain these records is clearly inexcusable in light of the clear contract requirement that this type of information be provided to maintain the accuracy of the CPM schedule (finding 16 at ¶1.4 & ¶1.5).Accordingly, appellant's delay claims cannot be granted.

Even if we were in error as to the proper legal standard for requiring the use of the CPM to prove delay, appellant's delay claims cannot be sustained. Both in the Wunderlich Contracting and Bateson cases the contractor was found to have the burden of proving that the change orders caused delay to the overall project completion date. Appellant relies on its delay expert's opinion to establish the alleged delay. We are unable to accept appellant's delay expert's opinion as being reliable because for the most part we were unable to verify his opinions by looking at the factual data he relied upon. Gulf Contracting, Inc., ASBCA Nos. 30195 et.al., 89-3 BCA ¶21,812, reconsid. denied, 90-1 BCA ¶22,393, aff'd, Gulf Contracting, Inc. v. United States, 23 Cl.Ct. 525 (1991), aff'd, 972 F.2d 1353 (Fed. Cir. 1992), cert. denied, 113 S. Ct. 598 (1992).

Appellant would have us rely on its expert's opinion because of his exhaustive study of the documentary record and discussions with appellant's witnesses. We have little doubt that appellant's delay expert had a vast knowledge of this project (finding 147). However, his delay opinion was very conclusionary. He neither identified the specific underlying factual details he utilized in coming to his opinion nor sufficiently explained how he used the underlying data in reaching that opinion for each and every change and/or claim at issue.

He was unable to determine when most of the change or claim work was done and failed to even provide the source data for the end dates for his spheres of influence (findings 167, 168, 192). His analysis was in most part based upon unidentified information in change order and claims issue files and an analysis of his as built schedule without demonstrating how he utilized that schedule in reaching his conclusions for particular issues.

Appellant also contends that the contracting officer's issuance of unilateral contract modifications granting appellant a total of 243 days of time extensions creates a rebuttable presumption that appellant's delay claims are valid (findings 7 to 16). We agree that the issuance of these modifications is an admission of liability for the 243 days of delay and do not disturb the contracting officer's determination of compensable delay, excusable delay, and impact. However, we do not agree that the issuance of the unilateral modifications in any way helps appellant to prove any further delay and disruption. As we have detailed in our findings, the contracting officer's admission of liability was based upon significantly different change orders and claims than those now alleged by appellant to have caused delay (findings 7 to 16).

Although appellant insists that it was not using the disfavored total delay method to prove its delay claims, we have evaluated its claims under that theory. Under this theory, contractor determines the delay by subtracting from the number of days it took to perform the project the sum of the number of days it reasonably planned to perform in its bid, and all other delay days which were its responsibility. Parsons of California, ASBCA No. 20867, 82-1 BCA ¶ 15,659. It cannot be applied when there is any doubt that the claimed delays might include those of appellant. Cocoa Electric Company, Inc., ASBCA No. 33921, 91-1 BCA ¶23,442 at 117,591 to 117,594; Wunderlich Contracting Co. v. United States, 173 Ct. Cl. 180, 193; 351 F.2d 956, (1965).

We have found that the project was delayed substantially by appellant's fireproofing problems and that the total extent of that delay has not been established (findings 92, 93). Fireproofing finished 121 days later than the late finish date in the initial contract CPM schedule (finding 92) and caused appellant to resequence the project in a fashion which appears to us to be less efficient than that originally planned (finding 92). In addition, we have found that the delays for structural steel, relites, flush mounted clocks, and vibration isolation of the medical gas compressor were the responsibility of appellant and the extent of these delays, if any, is also unknown. Accordingly, we are unable to use the total delay theory because some of the alleged delays might include those which are the responsibility of appellant. Appellant's delay claim is denied.

II. Inefficiencies

The parties appear to be in agreement that they informally have settled all of the inefficiency costs directly caused by the issuance of the unilateral change orders issued by the contracting officer. The dispute is whether appellant in addition is entitled to recover for inefficiencies indirectly caused by these change orders. The Government contends that the informal settlement covered all inefficiencies and bars any recovery under the doctrine of accord and satisfaction. Appellant at page 22 of its reply brief describes the dispute as follows:

Respondent asserts that there is an accord and satisfaction of Appellant's present delay and inefficiency claims by virtue of the prior negotiation of the direct costs of the related change orders. That assertion is incorrect. Appellant specifically reserved its right to seek project impact costs which the Navy refused to negotiate. Appellant has never disputed that direct costs were bilaterally settled for certain claims, but none of the indirect costs which Appellant seeks in the present appeal were settled.

Respondent erroneously focuses on the negotiation of so-called “COR inefficiencies” to contend that some part of what Appellant includes as “inefficiencies” in the present case has already been settled. At the hearing, Respondent's own witnesses acknowledged that the specific phrase “COR inefficiencies” was coined by the Navy to describe certain direct costs addressed at the various change order negotiations. As such, “COR inefficiencies” constitute no part of the indirect costs which Appellant presently seeks.

(footnotes and citations omitted; see also appt's brief at 580-81). Appellant appears to use the term “indirect inefficiencies” interchangeably with the terms “cumulative inefficiencies” or “project impact” of the combined change orders (id.).

Appellant has the burden of proving that these unilateral change orders caused this indirect or cumulative lack of productivity. Luria Brothers & Co. v. United States, 177 Ct. Cl. 676, 369 F.2d 701 (1966); Parsons of California, ASBCA No. 20867, 82-1 BCA ¶15,659. In Wunderlich Contracting Co. v. United States, supra; 173 Ct. Cl. at 196-200, 351 F.2d at 967-69, the issuance of numerous change orders was found not to be sufficient to establish delay without direct proof that those change orders proximately caused that delay. Similarly, cumulative inefficiency or impact is not proved by the issuance of numerous change orders without proof that these change orders proximately caused that indirect or cumulative inefficiency or impact.

We are unable to find that appellant has met its burden of proof for the very same reasons we were unable to sustain its expert's delay opinion. His loss of productivity or inefficiency opinion as to indirect or cumulative inefficiency or project impact was very conclusionary (finding 200). He did not identify the particular underlying factual details he utilized in coming to his opinion and how he used such data in reaching that opinion for the unilateral change orders at issue (id.). In addition, we were unable to sustain appellant's delay expert's opinion that change orders for which delay was claimed automatically result in liability for indirect or cumulative inefficiency or impact as we were unable to find any delay resulting from those change orders. Accordingly, we are unable to sustain this aspect of appellant's appeal.

III. Major Schedule Revision-ASBCA No. 24578

Appellant seeks an equitable adjustment for the Government's refusal to accept its major CPM schedule revision unless the schedule predicted the official contract completion date. It claims the contracting officer unfairly required appellant to do this when the contract completion date should have been extended due to numerous change orders and constructive changes which the Government should have previously inputted into the CPM schedule. However, appellant has not shown entitlement to any such extensions.

Appellant has not denied that the Government properly could refuse to accept its CPM schedule revision if it was not entitled to have the completion date extended to the date shown thereon. Appellant has the burden of showing excusable delay. Wunderlich Contracting Co. v. United States, supra. Accordingly, it must prove at the time of each rejection of a schedule revision that the official contract completion date was required to be extended under the terms of this contract. It has failed to do so (findings 179 to 186). Accordingly, appellant's claim for multiple revisions of the CPM schedule must be denied.

IV. Conclusion

The appeals are denied.

JOHN I. COLDREN, III
Administrative Judge
Armed Services Board of Contract Appeals

I concur

WILLIAM J. RUBERRY
Administrative Judge
Acting Chairman, Armed Services
Board of Contract Appeals

I concur

ALAN M. SPECTOR
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 Nos. 24578, 25838 and 28687, Appeals of Santa Fe Engineers, Inc., rendered in conformance with the Board's Charter.

EDWARD S. ADAMKEWICZ
Recorder, Armed Services
Board of Contract Appeals