Mergentime Corp. v. Washington Metropolitan Area Transportation Authority

MEMORANDUM OPINION

THOMAS F. HOGAN, Chief Judge.

In Herman Melville’s

Moby-Dick,

the first mate is the ironically named Star-buck, a star-crossed sailor who cannot “buck the stars” and avoid his fatal destiny. Just so this protracted litigation. This star-crossed case has been in the hands of two prior judges in this Court, who both died shortly after rendering opinions in this litigation. Indeed, due to no fault of any court or counsel, this litigation has begun to assume the dimensions of

Jarndyce v. Jarndyce,

the protracted litigation in Charles Dickens’s

Bleak House.

Charles Dickens,

Bleak House

(J.M. Dent & Sons 1972) (1953).

Most recently, this star-crossed judicial journey comes before the Court after a 25-day bench trial to determine whether defendant and counter-plaintiff Washington Metropolitan Area Transit Authority (“WMATA”) justifiably terminated for default the joint venture contractor responsible for construction of the Shaw Street and U Street Stations and connecting tunnels for the Washington, D.C. metropolitan area’s subway system, called the Metrorail System (“Metro”), on May 11, 1990. The joint venture and plaintiffs in the case— two construction companies, Mergentime

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Corporation (“Mergentime”) and Perini Corporation (“Perini”) (collectively, “M/P” or “the Joint Venture”) — allege wrongful termination and claims for breach of contract under the terminated Shaw Street Station (“Shaw Station”) and U Street Station contracts. WMATA counterclaimed to recover reprocurement costs, liquidated damages, and other credits and damages. Counter-defendant Insurance Company of North America (“INA”) was the surety for the performance bonds on both contracts and also asserts claims against WMATA.

After carefully reviewing all the evidence presented, the representations made at trial, the record in this case, and applicable law, the Court concludes that WMA-TA’s termination for default of the Joint Venture was justified and that the Joint Venture is liable to WMATA for damages as detailed below. The Court also concludes that WMATA is responsible to the Joint Venture for the outstanding claims detailed below.

Historical Overview of the Dispute and Litigation

To determine the disputed issues, including whether WMATA lawfully terminated M/P for default, this Court must decipher a complex factual history that began in 1984 with WMATA’s bid invitation for construction of the Shaw Station. In addition, the litigation history has involved years of discovery, separate proceedings before three trial court judges and the Court of Appeals, and multiple opinions from both this Court and the appellate court. To decide this dispute, the Court conducted a trial; — which included oral testimony from numerous live witnesses and thousands of exhibits — and carefully reviewed the entire record in this case, including the many Opinions issued by the two predecessor judges and the Court of Appeals.

While the procedural history and facts were extensively described by the D.C. Circuit in

Mergentime Corp. v. WMATA,

166 F.3d 1257, 1260-61 (D.C.Cir.1999), the Court will detail the most relevant aspects fcir -the sake of context. As Judge Rever-comb succinctly stated, “[t]his case is about how not to. build a subway system” — the Shaw and U Street stops on Metro’s Green Line.

Mergentime Corp. v. WMATA

No. 89-1055, 1993 WL 328083 , at *1 (D.D.C. July 30, 1993) (“Revercomb Op.”). In 1985 and 1986, WMATA awarded two separate contracts totaling $94 million to M/P to build the stops and associated tunnels. During the course of the construction, this Joint' Venture encountered various circumstances that caused delay. For example, M/P was faced with differing site conditions, including unanticipated boulders and the need for grouting. In addition, the District of Columbia Department of Public Works (“DPW”) rejected M/P’s traffic maintenance plan, which resulted in prolonged negotiations and reworking of the plans to handle street closings and traffic during the projects.

Among other things, M/P claimed it was owed reimbursement for additional costs incurred during construction as a result of these delays. Accordingly, M/P filed suit in this case on April 14, 1989 for breach of contract due to WMATA’s alleged failure to process claims submitted by M/P in a timely fashion.

Mergentime Corp. v. McElhenny,

Civ. No. 89-1055 (D.D.C. Apr. 14, 1989). Negotiations and subsequent agreements aimed at salvaging the projects followed; however, WMATA eventually terminated M/P for default on May 11, 1990. As a result, M/P amended its complaint and the litigation resumed.

M/P now seeks to collect on its reimbursement claims and subsequently added claims for breach of contract and wrongful

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termination, while WMATA has counterclaimed to recover the costs it paid to other contractors to complete the work, credits owed to it by M/P, and other damages.

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Following a 45-day bench trial, Judge Revercomb issued a 251-page opinion in July 1993 that found, among other things, that WMATA justifiably terminated M/P for default and was entitled to reprocurement costs, and that M/P established the merit of Shaw Street reimbursements but not an entitlement to the claims. Judge Revercomb was unable to quantify the claims and did not make any conclusions with respect to U Street claims before he passed away two days later. Judge Green, serving as the successor judge pursuant to Federal Rule of Civil Procedure 63, handled the post trial motions.

Upon both parties’ appeals, the Court of Appeals reversed the successor judge’s rulings for failing to comply with Federal Rule of Civil Procedure 63, and remanded the case back to this Court.

2

After additional briefing by parties regarding the remand procedures, this Court ruled that a new trial would be necessary in this case because it could not certify adequate familiarity with the record pursuant to Rule 63. Specifically, the Court determined that this case could not be completed in the absence of a new trial without prejudice to the parties. Thus, the Court conducted a 25-day bench trial, which was followed by closing arguments by counsel.

This opinion provides the Court’s findings of facts and conclusions of law, pursuant to Federal Rule of Civil Procedure 52(a). These findings of fact are based on a thorough evaluation of all the evidence and the parties’ proposed findings, and replies thereto. In making these findings, the Court relies in large part upon its determination of the credibility of those witnesses based on, among other things, its observation of their demeanor and the inherent probability of their testimony in light of the documentary evidence and other known facts.

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FINDINGS OF FACT

Mergentime and Perini — the plaintiffs and counter-defendants in this case — are two construction companies that entered into a joint venture agreement to bid on and perform two construction contracts: the Shaw Station and Tunnels contract and, subsequently, the U Street Station

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contract. These contracts were awarded by defendant and counter-plaintiff WMA-TA, an instrumentality and common agency created by the Interstate Compact by and between Maryland, Virginia, and the District of Columbia that, among other things, oversees and manages the construction and operation of the Metro. Counter-defendant INA was the surety for the performance bonds on both the Shaw and U Street Station contracts. After evaluating the record compiled by the parties in this case — including the testimony of many witnesses and thousands of pages of exhibits — and the arguments made by their counsel, the Court now makes the following findings of fact.

I. The Invitations

A. Shaw Station Invitation

To initiate bidding on the Shaw Station and Tunnels construction project, WMATA issued Invitation for Bid No. IFB-C-663 for Contract 1E0012 (“Shaw Station Invitation”) on December 10, 1984. WMATA described the project as follows:

This is a two-part multi-year funded Contract for Construction of the Greenbelt Route segment from Seventh and Q Streets, N.W. to Vermont Avenue and U Street, N.W., consisting of Section E-l/b and E-l/c, and as follows:

Part I: Cut-and-cover construction of Shaw Station

Part II: Soft ground tunneling as follows:

South of Shaw Station — 445 linear feet

North of Shaw Station — 1450 linear feet

SAF No. 106. The Shaw Station Invitation called for competitive bidding with a public opening of bids on March 27, 1985, and WMATA’s estimate for the contract price was $53,338,512, with $16,798,502 allocated to Part I of the contract and $36,540,010 allocated to Part II.

Id.

In response to this bid invitation, Mer-gentime and Perini entered into a Joint Venture Agreement on March 23, 1985. SAF No. 107. Pursuant to this agreement, the two corporations “agreed to enter into a Joint Venture for the purpose of submitting a joint bid” for the Shaw Station construction project. Def. Ex. 12, at 1. In addition, they agreed to “associate themselves as joint venturers for the purpose of performing and completing this work ... in the event [the contract was] awarded to them.”

Id.

at 2. The agreement designated Mergentime as the “sponsoring joint venturer,” meaning that the construction contract would be carried out under its direction.

Id.

In addition, the agreement allocated the profits, losses, contribution responsibilities, and other interests between the two parties, assigning Mergentime 60% of the project and Perini 40% of the project. SAF No. 107. Data submitted by the Joint Venture included letters from financial institutions stating that Mergentime had lines of credit totaling $14 million and Perini had lines of credit totaling $18 million. SAF No. 108.

After opening and receiving the bids for the Shaw Station Invitation, WMATA awarded Contract 1E0012 to the Joint Venture for the firm-fixed price of $50,895,000 on August 17, 1985.

4

Specifically, the project was divided into two parts with separate prices and completion dates as indicated in the invitation. SAF No. 110. Part I, which dealt with the station area work, was priced at $19,300,000. Part II involved excavating

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and constructing the tunnels and finishing the station for $31,595,000. M7P was to complete Part II work within 1280 days after receiving the Notice to Proceed (“NTP”).

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B. The U Street Station Invitation

WMATA followed a similar process for the U Street Station by first issuing its Invitation for Bid No. IFB-C-716 for Contract 1E0021 for the construction of Greenbelt Route U Street Station (“U Street Station Invitation”) on January 6, 1986. SAF No. 112. This U Street Station Invitation described the work as follows:

The work of this two-part Contract includes the following:

a. Part I:

(1) Construction of line segment from Vermont Avenue and U Street, N.W. to Fourteenth Street and V Street, N.W.

(2) Cut-and-cover construction of U Street Station.

b. Part II:

(1) Cut-and-cover construction of line section.

(2) Finish work for entire project.

Id.

The bid also set forth “Instructions to Bidders” describing the necessary qualifications, which included satisfactory evidence of adequate financial resources and ability to comply with performance schedules. SAF No. 828.

WMATA estimated the cost for this contract at $47,282,000. It also set two periods of performance for the distinct parts of the contract: Part I was slated for 1000 days after receipt of the NTP for the project, while Part II was set for 1190 days after receipt of the NTP for that part of the contract. SAF No. 112. After opening the bidding on February 12, 1986, WMATA received the lowest responsive bid from M/P. SAF No. 113. Thus, on April 1, 1986, WMATA awarded this contract to MyP for the firm-fixed price of $44,298,000.

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II. General Contract Provisions

The contracts for both of the projects were largely governed by the WMATA General Provisions and Standard Specifications for Construction Projects of 1973 (“General Provisions”). In addition, both contracts included various special provisions and governing documents as well. Given that the relevant portions of these contracts were set forth at length by Judge Revercomb, Revercomb Op. at *2-23, the Court now will provide the following descriptions of the key provisions.

7

There is no significant dispute about the contractual provisions. SAF Nos. 106-172.

A. M/P’s Responsibilities

Among other things, M7P had the following responsibilities in connection with the construction projects:

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• provide its personal superintendence to the work or have a competent foreman or superintendent, satisfactory to the Contracting Officer, on the work at all times during progress, with authority to act for the Joint Venture;

• obtain any necessary licenses and permits, at no additional expense to WMATA;

• comply with all applicable federal and local regulations in connection with the prosecution of the work, at no additional expense to WMATA;

• take proper safety and health precautions to protect the work, the workers, the public, and the property of others;

• erect and maintain signs, fences, barricades and pedestrian bridges and provide watchmen wherever necessary and as indicated in the contracts;

• take positive measures to prevent the entry to the work site and storage areas by children, animals and unauthorized adults;

• keep the construction area, including storage areas, free from accumulations of waste material or rubbish at all times and, prior to the completion of the work, remove any rubbish and all tools, scaffolding, equipment, and materials not belonging to WMATA;

• leave the work and premises in a clean, neat and workmanlike condition satisfactory to the Contracting Officer upon completion of the construction; and

• provide sufficient and adequate equipment to complete the work as specified in the contracts within the deadlines, adequate maintenance of this equipment throughout the project, and improvement or removal of any ineffectual or hazardous equipment.

B. Contract Modifications

There were two mechanisms to deal with changes. M/P could propose changes by issuing a Contractor Proposal Number (“CPN”). WMATA, on the other hand, could issue a Proposed Change Order (“PCO”), in which it would seek to make a change and would be responsible for any increased costs or delays stemming from that change.

The General Provisions allow the “Contracting Officer” (ie., the person executing the contract on behalf of WMATA), to make any change in the work within the general scope of the contract. The contractor could designate such changes as a “change order,” which could involve anything including the projects’ specifications, the method or manner of performance of the work, and the projects’ time schedules. In addition, the Contracting Officer’s written or oral orders causing any such change were to be treated as a “change order” if M/P provided written notice that it regarded the order as such to the Contracting Officer (including any order to accelerate the project performance).

If any changes caused an increase or decrease in the projects’ cost or the time required for the work, whether or not changed by any order, an equitable adjustment was to be made and the contract modified in writing accordingly. If M/P intended to assert a claim for an equitable adjustment, it was required, within 30 days after receipt of a written change order or furnishing a change order written notice, to submit to the Contracting Officer a written statement setting forth the general nature and monetary extent of such claim.

Changes to the projects also could involve differing site conditions. The contracts required M/P, before such conditions were disturbed, to promptly notify the Contracting Officer in writing of (1) sub-surface or latent physical conditions at

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the site that materially differed from the contracts’ descriptions, or (2) unknown and unusual physical site conditions differing materially from those ordinarily encountered and generally recognized as inherent in such work. After an investigation, the Contracting Officer would determine whether such a material difference caused an increase or decrease in cost or time. If so, an equitable adjustment would be made and the contract modified in writing accordingly.

In connection with any proposal for a contract modification, the contracts mandated that M/P provide an itemized price breakdown as required by the Contracting Officer. This breakdown needed sufficient detail to permit an analysis of all material, labor, equipment, subcontract and overhead costs, and profit. The breakdown also must cover all work involved in the modification, whether such work was deleted, added, or changed. Any amount claimed for subcontracts required support by a similar price breakdown. In addition, if the proposal included a time extension, a justification for such an extension was required. If the modification price was not agreed to before commencement of the work involved in the modification, M/P and any subcontractor were required to maintain separate accounts of all incurred seg-regable direct costs allocable to the change.

C. Conditions Affecting the Projects

The contracts also required M/P to ascertain the nature and location of the work, as well as the general and local conditions that may affect the projects. Any failure to do so would not relieve M/P from successfully performing work without additional expense to WMATA. Indeed, under the contracts, WMATA assumed no responsibility for any understanding or representations concerning conditions made by any of its officers or agents prior to the execution of the contracts, unless expressly stated in the contracts.

D. Sequence, Progress Schedules and Deadlines

M/P’s work was to be performed generally in accordance with the contracts’ construction sequence requirements, the contract drawings, and a detailed plan of the work in a logical sequence developed by M/P and approved by WMATA’s engineer. M/P was required to submit a schedule to the Contracting Officer for approval showing the proposed order of work, the dates on which several major features would be started, and the contemplated dates for completing those features. The schedule was to be in the form of the graphic network diagram or progress chart indicating the work scheduled for accomplishment at any time. Specifically, M/P was required to enter on this schedule the actual progress at monthly intervals, which was to be immediately delivered to the Contracting Officer. A failure to submit or update the progress schedule in a timely manner would allow the Contracting Officer to withhold approval of progress payment estimates.

The contracts also required M/P to prepare and submit a two-part schedule to be used for planning and executing the projects. This schedule would provide details about the construction activities and the attendant “cost loading” of each segment.

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The Part I schedule would depict M/P’s planned activities for the first 180 days of the contracts. The Part II submittal

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would be a cost-loaded Critical Path Method (“CPM”) schedule depicting all milestone dates through contract completion.

9

In addition, M/P was required to submit monthly computer updates to the schedule, monthly narratives stating the general progress during that period, a discussion of problems and proposed solutions, and Monthly Progress Status Reports (“Monthly Report”). The two-part network submittal, the Monthly Reports, and revisions to the activity network and analysis were collectively referred to as the Network Analysis System (“NAS”).

The Part I submittal would include a narrative explaining M/P’s general approach for meeting the interim and final completion dates. Also, the cost of all activities expected to be completed before delivery and approval of the Part II sub-mittal would be included, and this data would be used as a basis for payment. No progress payments were allowed until the Part I submittal was approved, and approval could only occur if the submission was complete as specified and represented a realistic approach to the work.

The Part II submittal, which was due 120 days after the Part I NTP, would provide a schedule for the entire contract, including the approved Part I schedule used for the first 180 days of work. This “cost loaded” submittal also would include a narrative on how M/P proposed to perform the balance of the work. Once the Part II schedule was approved, this schedule (unless subsequently changed) was to be the schedule used by M/P for planning, scheduling, managing and executing the work to be accomplished. No progress payments were allowed for work performed after the first 120 days of the contracts until the complete initial Part II schedule was submitted, and no progress payments were allowed for work performed after the first 180 days of the contracts until the initial Part II submittal was approved and the first Monthly Report based on Part II submittal was provided to WMATA.

10

Monthly Reports were first required 180 calendar days after the NTP and monthly thereafter. M/P was required to participate in monthly meetings with WMATA engineers to allow for joint review and agreement on job progress. Activities that were not included in the initial Part II submittal were to be added to the Monthly Reports for approval in various circumstances, including introduction of change order activities, addition of onsite material delivery activities, or actual or potential delay to contract deadlines. These reports were to be the basis for progress payments, and a failure to provide acceptably updated reports (based on the sole judgment of WMATA engineers) would disallow progress payments.

Original contract milestone dates could not be changed except by contract modification. If M/P’s NAS document submit-tals were not approved, the Contracting Officer was authorized to suspend progress payments. Also, if the Contracting Officer determined that M/P had fallen “significantly behind the approved progress schedule,” M/P would have to take

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any steps needed to improve the progress. The Contracting Officer could require an increase in shifts, initiate or increase overtime operations, increase days of work, increase the amount of construction plant, and/or require the submission for approval of supplemental progress schedules proposing changes to regain the approved schedule, all without additional cost to WMATA. M/P’s failure to comply with these requirements of the Contracting Officer would be grounds for terminating M/P’s right to proceed with the work, or any separate part thereof, in accordance with the contracts.

E.Disputes

Disputes about a question of fact arising under the contract and not disposed of by agreement were to be decided in writing by the Contracting Officer. The Contracting Officer’s decision would be final and conclusive unless M/P properly lodged a written appeal with the WMATA Board of Directors. In turn, the Board’s decision was to be final and conclusive unless determined by a court to have been fraudulent, capricious, arbitrary, so grossly erroneous as necessarily to imply bad faith, or unsupported by substantial evidence. Pending a final decision about any dispute, M/P was required to proceed diligently with the performance of the contract and in accordance with the Contracting Officer’s decision. In addition, M/P and/or any subcontractor performing the affected work were required to maintain separate accounts of all incurred segregable direct costs.

F.Work Commencement and Completion

M/P was required to commence work within 10 calendar days after receiving the NTP and to prosecute the work diligently to completion. Regarding interim work completion, the contracts required M/P to complete all work in specific areas within the number of calendar days after receiving the NTP if specified in the contracts and release the areas to other contractors. Each contract had Special Provisions pertinent to the particular contract that contained,

inter alia,

interim completion dates for the two projects requiring that certain aspects of the work be completed within specified periods of time to allow WMA-TA’s system-wide contractors to complete follow-on work.

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Final completion of the entire project, including the final cleanup and readying for use, was required within not more than the number of calendar days specified in the contracts.

The milestone dates could only be adjusted upon modifications to the contracts. Further, actual slippage of activities could not be the basis for time extensions unless such slipped activities were on the critical path or caused one or more new critical paths, thus resulting in a delay in achieving any milestone date or in achieving the Contract completion date.

If M/P failed to complete the work within the specified time for interim completion dates, the contract required it to pay WMATA liquidated damages of $2500 per each day of unexcused delay for each affected area. For final completion, failure to complete the work on time required M/P to pay WMATA $1500 in liquidated damages for each day of delay. The liquidated damages were not to exceed $5000 per day.

G.Termination for Default

If M/P failed to complete its work (or any separable part) on time, or refused or failed to prosecute such work with the

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diligence required for completion by the agreed-upon deadlines, WMATA could terminate by written notice M/P’s right to proceed working. Further, WMATA could take over and complete the work, by contract or otherwise. The contracts provided that, regardless of any such termination, M/P and its sureties would be liable for any damage to WMATA resulting from the refusal or failure to complete the work in the specified time.

Termination and any resulting damages claims were disallowed if the delay was caused by unforeseeable causes beyond M/P’s control, fault, or negligence (e.g., natural occurrences, acts of WMATA or its other contractors, fires, floods, strikes, freight embargoes, unusually severe weather, or certain delays by subcontractors or suppliers). Also, M/P could prevent termination by notifying the Contracting Officer in writing of the causes of delay within 10 days from the beginning of any such delay. The Contracting Officer would then ascertain the facts and the extent of the delay and extend the time for completing the work when, in his judgment, the findings of fact justified such an extension. Such findings of fact would be deemed final, subject only to appeal as provided in the General Provisions’ “Disputes” article. The rights and remedies of WMATA under the termination provisions were in addition to any other rights and remedies provided by law or under the contracts.

H. Termination for Convenience

M/P has asserted that the “Termination for Convenience of [WMATA]” provision is relevant. In this provision, WMATA could terminate the contracts whenever the Contracting Officer determined that such action was in WMATA’s best interest. Such termination would be effectuated by delivering a “Notice of Termination” that specified the extent to which performance under the contract was terminated, including the date termination became effective. M/P would be required to stop work as directed, place no further orders and terminate existing orders outside the scope of the' non-terminated work, transfer rights and titles to WMATA as directed, settle all outstanding liabilities, and otherwise complete the non-terminated work. M/P would submit a termination claim to WMATA, and in the event the parties failed to agree on the outstanding payments owed to M/P, the provision set forth the method to calculate the termination amount to be paid to M/P.

III. Shaw Station Project Provisions and Early Performance

“The Shaw project consisted] of a ‘cut- and-cover’ station and service area construction under 7th Street, between Rhode Island Avenue and S Street, N.W., with machine-bored tunnels to the north and south.”

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With this “cut-and-cover” method, M/P would “cut” a trench into the earth, which would be covered with decking to allow traffic to flow on the surface while work was proceeding underneath. The major elements of work ■ were the South Tunnels, the station south vent structure, the Shaw station (including south and north service rooms), the station north vent structure, the North Tunnels, the 8th Street fan structure, and the crossover. SAF No. 141. The project would interface with the U Street Station project at Vermont Avenue and U Street.

A. Shaw Station Contract Provisions

Various provisions unique to the Shaw Station project also set forth construction

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sequence and staging requirements, as well as internal and final deadlines. These provisions required M/P to undertake Parts I and II of the Shaw project construction work in a particular order. However, within the parameters set by these provisions, M/P had discretion regarding the order in which to perform particular items of work or particular work stages, so long as this planned sequence was set forth in approved Part I and Part II submittals. SAF No. 150.

1. Sequencing

The contract divided the Shaw Contract work into Part I and Part II, each part separately fended. In the beginning, funds were sufficient for Part I only, in the amount of $27 million, and Part II was contingent on the future availability of additional funding. As such, M/P could not begin Part II work until specifically authorized to do so by the Contracting Officer. WMATA would issue the NTP for Part

II 182

days after issuance

of

the Part I NTP. SAF No. 142.

Part I work involved the construction of the Shaw Station Structure, which would run under 7th Street, between R Street and north of S Street. M/P was required to construct this reinforced concrete Station Structure in the area excavated in 7th Street between R and S Streets. The structure would comprise of three major concrete components: inverts that formed the floor of the cylindrical Station Structure, lower arch-like walls resting on the inverts, and upper arches that made up the roof. In addition, Part I required the relocation of the following utilities running in the area beneath Rhode Island Avenue and R Street:

• water lines running under 7th Street;

• a 60-inch diameter sewer line (the “S-8 line”) running under the south side of Rhode Island Avenue that flowed into a 102-ineh diameter sewer line (the “S-5 line”) under the intersection of 7th and R Streets;

• a main Potomac Electric Power Company (“PEPCO”) electric line (the “E-5”) under the east side of 7th Street;

• a 48-inch diameter water line running below R Street;

• a telephone line running just under R Street; and

• a 102-inch diameter sewer line running below R Street.

Finally, Part I of the project required restoration work around the Shaw Station Structure, including “backfilling”

(i.e.,

placing fill dirt over the Station Structure), restoring utilities, backfilling over those utilities, and finishing the streets and sidewalks. SAF No. 143.

Under the Shaw Contract’s Part II, M/P would construct the South Service Area, a concrete structure by the station’s south end under Rhode Island Avenue. In addition, M/P would construct two other concrete structures: the South Vent Shaft Structure, which adjoined the South Service Areas, and the North Service Area, which was at the station’s north end. Tunnel boring work for both the South and North Tunnels was also included under Part II. Finally, the overall restoration work was to be completed, which consisted of placement or relocation of utilities, backfilling around Part II concrete structures and over replaced utilities, and construction of streets, curbs, gutters, and sidewalks. SAF No. 144.

The construction sequence provisions unique to the Shaw Station contract required WP to follow certain time intervals, divided into four terms. The first term encompassed all of Part I’s work, while the final three terms split up the work required in Part II. Also, for the first three terms, the following work was required throughout: setting up of traffic detours,

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setting of piles, utilities replacement, construction of slurry walls, decking and utility support installation, excavation system support installation, excavation, sewer and drainage system installation, utilities restoration, and backfilling and restoring the street. SAF No. 145.

The first two terms involved the South Tunnels and station referred to as “E-lb” — indeed, both were titled “E-lb Structural.” The first term was for the construction of the station vault, the north service rooms, and the north entrance and service rooms. In addition, “button-up” work would be done, if required. This term was slated for the first 28 months after M/P received the NTP. The second term was slated for 30 months, specifically the 6th-36th months after receipt of the NTP. This construction work involved the station platform, mezzanine, south vent structure, south service rooms, and station south entrance and service rooms.

Id.

The third term involved the North Tunnels referred to as “E-lc,” and was titled “E-lc Structural.” This term, which was slated for 34 months starting with the sixth month after receipt of the NTP, required the construction of the station’s north vent structure, fan structure, and crossover.

Id.

The final term, which was titled “E-lb/E-lc Finish,” was to occur for 20 months between the 22th and 42nd months after receipt of the NTP. As the title suggests, M/P was to finish work on the various parts of the project, including work for the South Tunnels; the south vent structure and service rooms; the station itself; the entrances, passageways and related service rooms; the north vent structure and service slabs; the chilled water lines; the pumping station; the fire stand pipes; the light and power elements; the fire protection system; the electrical and mechanical systems; and the architectural system and work.

Id.

Thus, the following sequence was required by the contract:

• Term I (Part I work titled “E-lb Structural”) during the 0-28th month period.

• Term II (Part II work titled “E-lb Structural”) during the 6-36th month period.

• Term III (Part II work titled “E-lc Structural”) during the 6-40th month period.

• Term IV (Part II work titled “E-lb/E-lc Finish”) during the 22-42nd month period.

This sequence made clear that the parties intended from the outset for Part II work, if authorized, to overlap with Part I work. In addition, an amendment added an access restriction that prevented work on the South Tunnels during the first 700 days of the project to accommodate work on an adjacent project to the south. SAF No. 146.

2. Deadlines

The construction contract required M/P to complete the project within 1280 days after receiving the NTP. Because M/P received the NTP on Part I of the Shaw Station contract on September 3, 1985, the contract completion deadline was March 6, 1989. SAF No. 148 (quoting Special Provisions of Shaw Station Contract).

In addition to setting this final completion date, the contract also established interim dates for certain identifiable portions of the work. Generally, Part I was to be completed 840 days after the NTP for Part I was received. Aso, the contract specified certain areas where M/P was required to complete all work and release those areas to other contractors within a certain number of calendar days after receiving

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the NTP for Part I. A portion of the inbound and outbound trackways, including the station limits were to be completed 1150 days after receipt of the NTP. The remaining trackways were to be completed by 1020 days after receipt. The deadline for work on permanent power and all branch circuits, the tiebreaker room, the train control and communications room, the escalator wellways, the elevator hoist-ways, the machine rooms, and the kiosk area was 1200 days after the NTP was received. SAF No. 149.

3. Staging for Traffic Maintenance

The Shaw Station contract also set forth certain guidelines for the staging of construction operations. M/P was directed to pay “particular attention ... to the fact that both vehicular and pedestrian traffic must be maintained on the various existing streets within and adjacent to the project site in accordance with the maintenance of traffic notes.” SAF No. 148.

Given the need for urban excavation, temporary decking was required over open excavations to allow for vehicular and pedestrian traffic to continue. To minimize disruptions to traffic, M/P was required to perform the decking operations, the utility work, and the subsequent paving and restoration operations in stages. The contract drawings set forth a staging method, as well as requirements for the number of traffic lanes provided during rush hours and non-rush hours, the shifting of traffic lanes, the use of working and storage areas, and other traffic maintenance concerns.

M/P would determine the particular order in which the various stages were to be performed, provided that all other traffic maintenance requirements were met. However, stage work within the limits of one stage must have been completed before work in another stage is commenced. M/P was required to prepare and submit to the DPW working drawings including comprehensive staging and decking plans for its approval, and could not start any work without such approval.

B. M/P’s Planned Work

Thus, as Judge Revercomb pointed out, the Court must examine the planned work versus the actual work sequence on the Shaw Contract to understand the parties’ disputes. M/P’s basic planned sequence of work ran from south to north. First, during the first 180 days, M/P planned to relocate major utilities, including the S-3 and S-5 sewer lines and the E-5 electrical line. The early work at the south end was to include the start of support of excavation work, including installation of soldier piles for the south vent structure and slurry walls for the support of station excavation.

M/P then planned to proceed with support of excavation, including installation of deck beams, capbeams, and decking in the open cut area along 7th Street. This work would permit M/P to proceed with its excavation operations under the street using the cut-and-cover method.

After completing the excavation to sub-grade at a certain location north of R Street, M/P intended to mobilize its Tunnel Boring Machine (“TBM”),

13

including trailing gear, track, and grout plant, in the excavated area between Rhode Island Avenue and R Street. The muck bin for the material excavated by the TBM was to be installed in the area of the south station entrance on the north side of R Street. M/P then planned to proceed with the excavation of the South Tunnels using the TBM.

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While South Tunnel work was proceeding, M/P planned to continue mass excavation of the station area moving from south to north, followed by station concrete operations. When the excavations of the station and South Tunnel were complete, the TBM would be remobilized to the north end of the station to excavate the inbound and outbound North Tunnels.

During the North Tunnel excavation, M/P planned to complete its station concrete work and work on the concrete in the south service rooms. Concrete work for the station north service rooms and vent structure was to occur after the completion of the North Tunnels. Finally, upon completion of structural work in the station area, M/P planned to backfill above the station to below the utilities, complete work on restoring utilities, backfill to the surface, and perform surface restoration (restoring the streets, curbs, gutters, and sidewalks that had been removed at the beginning of the excavation) along the alignment of the Shaw station and under 7th Street. M/P’s original plan then called for station lower arches, followed by the upper arches, to proceed from north to south.

14

This planned sequence of work deviated from the contract in several ways. For example, M/P acknowledged that starting the South Tunnels first was a deviation from the contract’s 700-day access restriction. Def. Ex. 32. However, with Perini performing the adjacent contract to the south, M/P was easily able to arrange for excavation of the South Tunnels to be performed before the adjacent project was completed. SAF No. 629.

C. Actual Work Sequence

The sequence of work for the Shaw station largely proceeded as planned. The Court finds that the major deviations from the general sequence of the planned construction were of M/P’s choosing for M/P’s convenience.

15

For example, M/P deviated from its planned sequence of station concrete operations for its own convenience, opting for a “skip-and-fill” method of pouring the inverts in which the inverts are poured alternately instead of sequentially to save concrete forming costs.

16

M/P also decided to pour station arch concrete from the south end to the north, rather than north to south as originally planned.

17

M/P also altered the sequencing for tunnel excavation as well for its own convenience and benefit.

See

discussion

infra

(M/P’s resequencing claims).

D. Shaw Project Performance

1. Traffic Pattern Claims (CPN 002)

The initial traffic maintenance plan presented by M/P to WMATA and the DPW, as required by the contract, was rejected, necessitating prolonged negotiations to develop an acceptable traffic plan. As such, M/P contends the associated delays substantially disrupted and delayed its per

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formance on the Shaw Station project by, among other things, restricting work space and altering the sequence of work. Proposed Findings of Fact of Mergentime, Perini, & INA (“P1.FOF”) at 250. The claim was asserted as Contractor Proposal Number 2 (“CPN 002”), one of two substantial claims by M/P that posed problems for the parties during the course of the Shaw Station construction project.

As detailed above, the contract documents reflect that Part I of the Shaw Station construction project involved utility relocation below street level, decking, and excavation, impacting traffic patterns in the area. As such, the contract required plans on how the traffic would be maintained during the construction operations. SAF No. 500. Specifically, M/P was responsible for obtaining all necessary licenses and permits from the District of Columbia related to prosecuting the work, including approval from the DPW of M/P’s traffic maintenance plan. SAF Nos. 501-02.

In its pre-bid contract drawings, WMA-TA’s original suggested traffic plans proposed closing four lanes of traffic on Rhode Island Avenue while maintaining two lanes of westbound traffic and a left turn lane and diverting Rhode Island Avenue’s eastbound traffic to Q Street. The contract also provided that 7th Street would remain partially open for southbound traffic. Def. Exs. 1508, 1754;

see also

Revercomb Op. at *24. This plan was reflected in WMATA’s contract drawings Elb-G-13 through Elb-G-18. Before their issuance, these traffic plans were approved by the District of Columbia government.

However, on March 21, 1985, six days before the bidding opened for the Shaw Station project, William Leech, WMATA’s Resident Engineer for the Shaw Project, was told by representatives from the DPW that it could not approve the traffic maintenance plan in contract drawings Elb-G-13 through Elb-G-18 because it would divert too much traffic from Rhode Island Avenue to Q Street. Mr. Leech was advised that the DPW would require four lanes of traffic — two west bound lanes and two east bound lanes — on Rhode Island Avenue at all times during the construction of the Shaw Station. Tr. 1/13/1992, at 6-7, 71-72; Pl.Ex. 1528, at 15-16, 21-24; PI. Exs. 22, 23, 24, 24(a).

While WMATA determined that it was too late to advise bidders of this change, purportedly to avoid delaying the bidding process, it appears that WMATA also did not formally advise M/P of its knowledge regarding the DPW position for some time either. Indeed, on September 25, 1985,

18

Mr. Leech reviewed and approved M/P’s Maintenance of Traffic Drawing TC-001 that was substantially the same as depicted in the contract drawings, and allowed M/P to forward these plans to the DPW for permit issuance despite his apparent knowledge (based on his March 21, 1985 meeting with the DPW representatives) that the DPW would not approve the plan given its reliance on a Q Street detour. Tr. 1/13/1992, at 7-9, 72-73, 82-83; Pl.Ex. 32. As such, this Court finds — and agrees with Judge Revercomb — that WMATA “did not advise M/P of [this] fact for nearly six months.” Revercomb Op. at *24. Specifically, it appears from the evidence that the first recorded indication of M/P’s knowledge regarding the DPW’s position

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comes from WMATA’s minutes from an October 1, 1985 meeting between the DPW, WMATA, and M/P:

Proposed traffic control for Rhode Island Avenue is inacceptable [sic]. Mr. Chardon stated that since Q Street is a small residential street, it can’t handle traffic detoured from Rhode Island Avenue.

Pl.Ex. 34, at 2;

see also

Tr. 11/6/1991, at 142; Tr. 1/13/1992, at 82-83; Tr. 9/19/2001, at 643-44.

M/P gave formal notice to WMATA that its maintenance of traffic plans for Rhode Island Avenue, using the Q Street detour, had been disproved by the D.C. government on October 21, 1985. SAF No. 508. On the same day, Mr. Leech informed Don Miner, Mergentime’s Vice President and Project Manager for the Shaw Station project, that WMATA would seek a credit for a 7th Street closure if approved against any claim by M/P for time and money arising from the rejection of its traffic plan. SAF No. 509. Several days later, M/P assigned CPN 002 to the Rhode Island Avenue traffic plan changes on October 30,1985.

19

SAF No. 508.

In subsequent correspondence, the DPW indicated that it was instead willing to approve the full closure of 7th Street (between R and S Streets, N.W.) to expedite construction. PI. Exs. 37, 38; Tr. 1/13/1992, at 12-13. Accordingly, in late 1985, M/P submitted a series of revised traffic plans for Rhode Island Avenue eliminating the Q Street detour. On November 8, 1985, Mr. Leech wrote Mr. Miner about the new traffic control requirements, noting that WMATA recognized that the loss of the Q Street detour was a change from the traffic control plan shown in the contract drawings. SAF No. 510. Mr. Leech further instructed M/P as follows:

1. Review and adopt your construction sequencing and maintenance of traffic schemes to suit [the new traffic plan].

2. Provide to this office the maintenance of traffic drawing schemes that [Department of Transportation] will permit.

3. Furnish to [WMATA] a proposal for additional costs, if any, with justification caused by this change.

Upon receipt of items 2) and 3) [WMA-TA] will review and may issue a PCO based on the change.

SAF No. 510.1 (first alteration in original). M/P submitted a revised traffic plan for approval on November 13, 1985, which would keep four lanes of traffic — two eastbound lanes and two westbound lanes — on Rhode Island Avenue during all construction operations under Contract 1E0012. SAF No. 511. The DPW approved this plan on January 9,1986.

M/P informed WMATA that the traffic changes would cause delays and additional direct costs. Specifically, M/P’s Shaw Project Manager Thomas Goedjen sent a letter to Mr. Leech on April 23, 1986 stating that, while it would submit a cost proposal for CPN 002 only when the full impact was documented, at a minimum the affected activities included the E-5 electrical duct, the W-2 16-inch water line, the S-3 sewer, the T-2 two-way duct, soldier piles, caps, decking, and additional traffic protection devices and traffic pattern switches. PI. Ex. 55.

M/P and WMATA did not reach agreement on the valuation of CPN 002 despite continued discussions about traffic plan changes and the value of the 7th Street closure. M/P refused to acknowledge a

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linkage between the Q Street detour and the 7th Street closure. Pl.Ex. 58. On October 6, 1986, WMATA unilaterally submitted Contract Modification Number 7 (“Mod 7”), which provided for a no-cost/no-time extension adjustment to the contract reflecting the Rhode Island Avenue traffic change offset by the 7th Street closure cost and time savings. SAF No. 602.

M/P did not submit a cost proposal for CPN 002 until November 20, 1986, requesting a contract price adjustment of almost $1.12 million and a 92-day time extension. Def. Ex. 240. In that proposal, M7P claimed $192,246 in inefficiency costs (non-direct), Def. Ex. 62, at 47, which M/P described as “costs which arose from working in the smaller work areas necessary to maintain 4 lanes of traffic in Rhode Island Avenue.” SAF No. 607. These included inefficiencies in installing soldier piles and decking and relocating the S-3 sewer, the W-2 and W-4 watermains, and the E-5, E-4, and E-2 electrical duct-banks. Def. Ex. 62, at 52. M/P also claimed almost $60,153 in direct costs of maintenance of traffic activities associated with additional traffic switches under Rhode Island Avenue.

Id.

at 48. Notably, M/P did not — as of the claim submission in November 1986 — assert claims for acceleration and administration impacts on work in the station area.

20

Neither WMATA nor M/P prepared any cost proposals regarding the benefits from the 7th Street closure at any time during 1986 and 1987. Indeed, WMATA did not prepare a detailed cost estimate until after it had terminated M/P as contractor for default. SAF No. 611. Further, WMA-TA’s did not issue a final decision on CPN 002 until May 10, 1990 — the day before termination. M/P claims that these delays in processing the CPN 002 claim breached the contract, and justified its delays in performing the Shaw Station project.

The start of utility work under Rhode Island Avenue was delayed; however, once excavation had proceeded to Level B struts, subsurface operations could proceed entirely from below the surface without hindrance from street-level traffic. By November 6, 1986, subsurface excavation and utility activities under Rhode Island Avenue could proceed regardless of street level traffic activities. Retr. 10/16/2001, at 2683-84; Retr. 9/19/2001, at 680; Retr. 9/21/2001, at 793. Further, based on a second independent review of the entire record, trial testimony, and credibility of the witnesses, the Court agrees with Judge Revercomb’s findings with respect to M/P’s claimed delays regarding the following particular items of early work:

The E-5 Electrical Line:

M/P’s original Part I CPM Schedule shows that work on PEPCO’s E-5 electrical line was to commence the week beginning November 6, 1985, with a “late finish” date of November 19 for the section between manholes 5 and 8 in Rhode Island Avenue and an overall late finish date of February 10, 1986. Pl.Ex. 16. M/P planned to begin this work at the south end of the Project in the intersection of Rhode Island Avenue and 7th Street and proceed northward up 7th Street. In fact, the Resident Engineer’s diary discloses that M/P began excavating the E-5 line as early as October 11, 1985, albeit at a different point along 7th Street than originally planned.

See

RE Diary (Shaw), 10/11/85. This work was performed under the guidelines set forth in a PEPCO permit, which generally limited the work to specific areas and

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only during off-peak traffic hours. Work on the E-5 line did not commence on Rhode Island Avenue until January 16, 1986, 70 calendar days later than the scheduled start.

See

Periodic Progress Review Meeting Minutes, 2/19/86, App. B. Completion of the section between manholes 5 and 8 was delayed until June 26, 1986.

See

Periodic Progress Review Meeting Minutes, 7/22/86, App. B. The delay in completion appears to have been cause in part by the need to complete work first on the S-3 sewer line in the immediate vicinity of the E-5 line.

The S-S Seiver Line:

The Part I CPM indicates that M/P was to begin installation of the new 60-inch S-3 sewer line beginning December 17, 1985, with a “late start” date of January 23, 1986.

See

Pis.’ Ex. 16. According to the claim narrative submitted by M/P in November, 1986, work on the S-3 sewer line commenced on March 17, 1986.

See

Def.’s Ex. 240, at 15. This statement is at odds with M/P’s own as-built schedule update, which the Court finds a more reliable source, showing that installation of the S-3 line began on February 21, 1986, the S-3 sewer was activated on June 13, 1986, and was completed at the transition chamber on June 26, 1993.

See

Pis.’ Ex. 17.

Soldier Piles:

M/P’s original Phase I plan called for installation of soldier piles in the Rhode Island Avenue area once the early utility work was completed there, as part of the support of excavation system for the South Service Area/Vent Shaft. Nee Pis.’Ex. 16. This work was to begin in the vicinity of the South Vent Shaft on the north side of Rhode Island Avenue on May 13, 1986, on the west side of Sta. 50+25 to Sta. 51 + 00 on June 2, on the east side of Sta. 50 + 25 to Sta. 51 + 00 on June 9, and at the South Bulkhead on June 20.

See

Pis.’ Ex. 16. M/P’s own as-built schedule (Pis.’ Ex. 17) and its schedule updates attached to Periodic Progress Review Meeting minutes show that M/P actually began work on the soldier piles as early as March 21, 1986, in the vicinity of the South Vent Shaft on the north side of Rhode Island Avenue, well ahead of schedule. The soldier piles for the east side of Sta. 50+25 to Sta. 51 + 00 were started on April 23, 1986, but not completed until June 27.

See

Pis.’ Ex. 17; Periodic Progress Review Meeting Minutes, 7/22/86, App. F. Although M/P complains that its piling activities were interrupted and non-sequential,

see

Def.’s Ex. 240, it is evident that the net delay was only 7 calendar days.

Revercomb at *26-27.

As to the administration and valuation of M/P’s CPN 002, the Court finds that M/P’s claim was inadequately documented or unsupported, M/P frequently revised and updated its claims resulting in the need for further audit and review by WMATA, and M/P refused to address offsetting credits and the benefit of the 7th Street closure. Def. FOF ¶¶ 319-25. The Court also finds that WMATA followed its internal procedures and the contract requirements in processing CPN 002, although these internal procedures may have contributed to some delay in processing the claims.

Id.

¶¶ 340^43. Thus, the Court rejects M/P’s contentions that the delay in processing the claim was a breach of contract or excused it from delay and nonperformance on the Shaw Station contract.

The Court also finds that, between January and August 1987, M/P and WMATA attempted to negotiate a settlement of CPN 002 and other issues as part of.Memorandum of Agreement Number 1 (“MOA

*168

l”).

21

This agreement recognized a bona fide dispute regarding CPN 002, but nonetheless attempted to revise milestone dates and settle many of the claims associated with CPN 002. Ultimately, WMATA did not sign MOA 1, but it did implement all of its provisions except that of the 100-day time extension. By letter dated August 11, 1988, Charles Mergentime gave the WMATA Contracting Officer John McEl-henny an additional 30 days to sign MOA 1 with its 100-day time extension. Pl.Ex. 99.

22

In addition, successful efforts to mitigate the effects of the delay did occur. Starting with a meeting on November 5, 1985, Mr. Leech and M/P’s management, Mr. Miner and Tom Goedjen, began to develop plans to mitigate the effect of the change in traffic patterns on Rhode Island Avenue. Def. Ex. 1521, at 29-30; Tr. 1/13/1992, at 14-15. Their plan would squeeze four lanes of traffic into what previously had been three lanes, and using the median and parts of the sidewalks to accommodate traffic. In addition, M/P was no longer required to maintain a left turn lane east of Rhode Island Avenue. The Court finds that these measures minimized the effects of requiring M/P to maintain four lanes of traffic during peak hours on Rhode Island Avenue. Tr. 1/13/1992, at 15-16,19-20.

23

The DPW’s denial of the Q Street detour did constrain the working space available to M/P under Rhode Island Avenue and 7th Street for utility work, and required some additional maintenance of traffic activities in that area. Def. Ex. 1364; SAF Nos. 645-55. The Court finds that WMATA’s failure to inform M/P of its superior knowledge about the DPW’s position for six months, including as M/P prepared its permit request was unjustified. Further, WMATA did contribute to the delays in resolving CPN 002 — indeed, the WMATA Contracting Officer did not issue a final decision on CPN 002 until May 10, 1990, the day before termination.

However, the impact of the change ceased in November 1986, when M/P had excavated to a level that allowed M/P to continue excavation and utility work from under the decking, without regard to street traffic above. Def. Ex. 1135; Tr. 1/17/1992, at 93-94; Retr. 10/16/2001, at 2684. Further, the costs incurred by M/P as a result of the Rhode Island Avenue

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traffic change were offset in large part by the cost savings achieved as a result of the allowance of full closure of 7th Street during station construction and beyond. The Court finds that this alternate traffic maintenance plan increased the efficiency of several operations along 7th Street, including support of excavation, deck beam installation, maintenance of traffic, excavation, and concrete operations during 1986-89.

24

The full closure of 7th Street during the work week was a change to the contract, from which M/P clearly benefited as its Project Manager Goedjen admitted. Retr. 9/19/2001, at 664-65. The estimated savings, proposed by WMATA (although prepared after termination) and credited by the Court, totaled $912,379. The Court notes that M/P never offered evidence as to the value of those benefits. Def. FOF ¶¶ 33-37, 912-26.

The Court agrees that the Rhode Island Avenue traffic change delayed excavation under Rhode Island Avenue, which in turn contributed to the delays in starting the South Tunnels from October 16, 1986 to January 23, 1987. Def. Ex. 1271. However, a cost-saving change designed and proposed by M/P, Contractor Proposal Number 005 (“CPN 005”), also contributed to the delayed excavation under R Street until a. sewer line was completed and supported in that area. This delay, discussed

infra,

in turn inhibited the installation of muck cars and trailing gear for the TBM.

25

Thus, M/P’s change proposal also, contributed to the South Tunnels delay. Tr. 1/17/1992, at 88-89; Tr. 1/21/1992, at 148-50; Retr. 10/16/2001, at 2678-82; Def. Exs. 1599,1600; Retr. 9/21/2001, at 812-13.

Regarding its acceleration claims, M/P argues that WMATA’s failure to grant timely extensions of time for CPN 002 and the June 2, 1986 and October 29, 1986 letters from Leech to M/P’s Goedjen, which indicated concern over missed deadlines, constituted acceleration. Def. Exs. 145, 226. The letters show that by October 1986, WMATA had determined that M/P was behind on the Shaw Station project.

See

Revercomb Op. at *36. At most, the two letters only ask M/P to submit a plan for recovering lost time on the contract. The Court finds no directive to accelerate performance. Rather, the letters inform M/P. that, if an acceptable plan is not .submitted, WMATA may invoke contract provisions to direct extra shifts or added manpower to make up lost time. Def. Ex. 1, at 22; Tr. 11/4/1992, at 60-62. Not surprisingly, despite the contracts’ requirement to notify WMATA if an order

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was deemed a directive to accelerate,

26

M/P gave no such notice regarding these letters in its response or otherwise. Instead of claiming or even complaining of acceleration, M/P’s response denied that it was 64 days behind schedule. Def. Ex. 151; Retr. 9/21/2001, at 809. Indeed, as Mr. Miner testified, M/P never discussed or prepared a plan for accelerating the work and never presented such a plan to WMATA.

27

In any event, the Court notes that M/P’s own schedule narratives show that it was behind schedule 64 workdays as of September 15, 1986, behind 77 workdays as of October 15, 1986, and behind 79 workdays as of November 15, 1986.

See

Def. Ex. 1511 (PPRM Minutes Nos. 12 app. D, 13 app. D, 14 app. D). Thus, despite the focus of efforts and “skipping” over work during the period from June 1986 to January 1987 when M/P was focused on getting started with tunneling operations in the South Bulkhead, M/P did not begin tunneling until January 23, 1987, or 99 days later than scheduled in the Part II CPM. Rather, according to its own schedule submissions, M/P lost time on the schedule during the alleged “acceleration” period between July and December 1986.

28

In summary, WMATA did fail to inform M/P of the DPW’s position. However, the mitigating circumstances, as well as the factors contributing to the delay attributable to M/P, ultimately limit the effect of CPN 002 on the Shaw Station project. In addition, the record reveals that WMATA did not order acceleration, nor did such acceleration occur. Thus, the Court finds that the Rhode Island Avenue traffic changes were mitigated, and the delays and acceleration problems as to the early utility relocation were not as severe as claimed by M/P.

2. Utility Relocation on R Street (CPN 005)

Another controversy involves CPN 005 — M/P’s proposal to realign utilities under R Street. During Phase I, M/P planned to relocate and support utility lines under R Street as preparatory work for the excavation under R Street needed before the South Tunnels tunneling operations could begin. SAF No. 534. M/P requested the change to make the utilities easier to install. Tr. 1/13/1992, at 34-35. The parties strongly disagree over the extent to which this these delays affected the South Tunnels efforts.

The contract drawings show the original location of the utilities under R Street— from west of 8th Street to Rhode Island

*171

Avenue — at the time of the bidding. The utilities relevant to the parties’ dispute were the W-6 48-inch water line, which the drawings show running along R Street, and the S-5 102-inch- sewer line, which is shown running near the north curb of R Street about 30 feet below the surface. SAF No. 536. These drawings also show the required relocation of these utilities under R Street. The W-6 water line was to be relocated closer to the R Street south curb line than its preconstruction location. The S-5 sewer line, “was to be relocated, via a curve to the south, under the existing T-300 telephone line, then to run parallel to and between the new 48-inch water line and the existing T-300 line, sloping in an easterly direction from transition chamber S5-1 to transition chamber S5-2 on R Street east of 7th Street.” SAF No. 537.

M/P proposed to move the sewer and water lines northward and straighten them out. To do so, M/P would excavate into the top of the existing 102-inch sewer, install corrugated metal flume pipes to carry away sewage flows during the construction, demolish the 102-inch sewer in sections, and install a new sewer. Pl.Ex. 68; SAF Nos. 542-43. M/P made the initial proposal to change the alignment of the utilities at a meeting with WMATA and DPW in September 1985, and formally submitted the proposal as a Value Engineering Change Proposal (“VECP”) in October 1985. Pl.Ex. 66; SAF No. 552-53. The proposal was approved in December 1985 and memorialized in a February 1986 agreement, referred to as “CPN 005.” Specifically, WMATA agreed to a change in construction methods for which there would be no change in the contract, and M/P agreed to complete all work on the utility realignment by the end of April 1986 and perform in multiple shifts to decrease exposure to potential spring flooding. Pl.Ex. 71a; SAF No. 556.

Thus, the CPN 005' agreement between WMATA and M/P required that all the work on the realigned 102-inch sewer be completed’ by the end of April 1986. ’ M/P witness Ralph Bradford admitted that work on the 102-inch sewer was completed long after this deadline,' claiming that the completion occurred in the first or second week of October 1986. Tr. 11/4/1991, at 71. Indeed, the job records appear to indicate that the fluming for the 102-inch sewer was completed on June 26, 1986, that support of the 102-inch sewer started on July 25, 1986, and that the support of the 102-inch sewer was not completed until November 12, 1986.

29

Further, the excavation to subgrade under R Street was completed on December 30, 1986, later than excavation under Rhode Island Avenue.

The key issue is whether the delays associated with CPN 005, including the S-5 sewer, had a controlling or concurrent impact on tunneling delays. The parties dispute whether the utility work at the intersection of 7th and R Streets was on the critical path for excavation of the station area to mobilize the TBM and begin mining the South Tunnels. WMATA contends that, by July 1986, the critical path ran through these CPN 005 activities, and that the CPN 005 delays had a controlling impact on tunneling delays, or an impact concurrent with the delay in obtaining a traffic permit for Rhode Island Avenue (CPN 002). Specifically, excavation had to be completed to subgrade along 7th Street under R Street so that the TBM muck cars and tail tracks could be installed,

*172

which could not begin until the work on the S-5 sewer was completed. Retr. 9/21/2001, at 812-13. In contrast, M/P insists that CPN 005 activities had only an incidental impact and were never on the critical path. As such, M/P argues that CPN 002 controlled the delay in commencing excavation of the South Tunnels.

WMATA’s scheduling experts, Messrs. Milano and O’Brien, concluded that the delay caused by M/P’s utility realignment was a longer delay than the delay caused by the Rhode Island Avenue traffic change (CPN 002) and that the CPN 005 delay thus controlled the start of TBM mining in the South Tunnels. Retr. 10/16/2001, at 2680; Tr. 1/17/1992, at 88-89; Tr. 1/21/1992, at 148-150; Def. Exs. 1599, 1600. M/P contends, however, that excavation under the 102-inch S-5 sewer did not delay installation of the critical elements for the TBM because the excavation under the sewer was on a small scale and could have been completed in a couple of days to avoid any delay. Tr. 11/7/1991, at 97; Tr. 1/23/1992, at 86-88. At the retrial, M/P contended further that it had deferred excavation under R Street because it was not on the critical path, in order to concentrate its efforts on readying the TBM for tunneling, which was on the critical path. Retr. 9/26/2001, at 1248-49.

The Court finds that the premise of M/P’s contention — that excavation under R Street was not on the critical path — is contradicted by M/P’s own schedule narratives. Every narrative between September 16, 1986 and December 15, 1986 states that the critical path ran through the excavation under the relevant portion of R Street. Def. Ex. 1511 (PPRM Minutes Nos. 13, 14 15). Thus, readying the TBM and excavating under R Street were both on the critical path, and both were necessary to commence tunneling.

M/P’s contentions are also contradicted by the testimony of both its Project Manager Goedjen and WMLATA’s Resident Engineer Leech. These gentlemen testified that completion of the 102-inch sewer restrained excavation to grade under R Street, thereby restraining the installation of the tail tracks and muck cars for the TBM. Retr. 9/21/2001, at 812-13; Tr. 1/13/1992, at 38-39. The South Tunnels excavation had to wait on the completion of excavation to subgrade beneath the 102-inch sewer that ran across 7th Street under R Street. The 102-inch sewer was not supported for its full length until November 12, 1986, and the excavation to sub-grade and mudmat under R Street to Unit E-524 were not completed until January 16, 1987.

30

Therefore, the work on the realigned utilities under R Street caused a longer delay to the start of the South Tunnels excavation than the change in the traffic plans for Rhode Island Avenue. Retr. 10/16/2001, at 2678-82; Tr. 1/17/1992, at 86-89; Tr. 1/21/1992, at 149-50; Def. Ex. 1600. Thus, the Court finds that the delay caused by the Rhode Island Avenue traffic change is concurrent with the CPN 005 delay, which resulted from M/P’s own proposed changes to the R Street utilities relocation.

As an alternative basis for explaining away the effect of CPN 005, M/P argued at the first trial that its proposal was needed to correct a design conflict for which WMATA is responsible. M/P’s witnesses during the 1991 trial before Judge Rever-comb contended that the realignment of utilities was necessitated by an alleged design conflict between the supports (carrier beams) for the 48-inch water line under R Street and the north upper level end wall of the South Service Area. Tr. 10/22/1991, at 79-80; Tr. 11/5/1991, at 105.

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These witnesses testified that either the water line itself physically interfered with the roof of the South Service Area, or the independent support system for the water line so conflicted with the roof. SAF No. 545.

The Court finds this alternative contention also unsupported by the evidence. None of the correspondence, meeting minutes, and other job records between September 3, 1985 and February 26, 1986 provides any indication that M/P considered the existing design of the R Street utilities to contain a design error or conflict. By proposing the realignment of utilities as a VECP — a cost-saving proposal — in his letter of October 30, 1985, Mr. Miner in effect annunciated a purpose of providing an “improvement” of the existing utility layout. Pl.Ex. 66. Indeed, design of the support systems for the utilities was the responsibility of M/P. Tr. 1/2/1992, at 80-81, 83-84; Pl.Ex. 3, at 78 (“Responsibilities [include] maintaining] and protecting] facilities, including building service connections.”). Neither Mr. Leech, the Resident Engineer at the time, nor Mr. Mehta, the WMATA Office Engineer, recalled M/P contending that the 48-inch line faced a design conflict. Tr. 1/14/1992, at 6-7, 9-10; Tr. 1/13/1992, at 98-101; Tr. 1/2/1992, at 87-88; SAF Nos. 535-40, 552, 553, 556. In addition, Ralph Jordan, the DPW representative who attended utility meetings with M/P, could not recall M/P ever stating that redesign of the R Street utilities was necessitated by conflicts. As Judge Revercomb rightly explained:

M/P can point to no contemporaneous correspondence or other document between September 3, 1985 and February 26,1986, when the proposed realignment of the R Street utilities was finally approved, indicating that M/P considered the existing design of these utilities to contain a design error or conflict. In other words, while M/P was not shy about alerting WMATA to defects or inaccuracies in the contract specifications and drawings, as the history of CPN 002 shows, it apparently made no such claim about the R Street utilities at the time it proposed realigning them.

Revercomb Op. at *31 (citations omitted).

In any event, the Court finds that no such design conflict existed. Al Kolodne, WMATA’s Resident Engineer, testified that there was no conflict between the support for the 48-inch water main and the end wall of the station. Tr. 12/18/1991, at 38. While M/P contends that it could not install a carrier beam under the 48-inch line because the beam would conflict with the wall, M/P could have supported the water line in a variety of different ways, including methods that would not have involved installing a carrier beam under the pipe. Tr. 12/19/1991, at 10-13.

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Further, even if there had been insufficient space to construct the particular support apparatus that M/P planned to use, there were no requirements on the specific method of independent support M/P was to use. Pl.Ex. 1(b); Tr. 12/19/1991, at 13. Thus, because the Court finds no credible evidence to show that M/P’s method was the only feasible method from an engineering or cost standpoint, M/P’s design conflict argument is doomed from the outset.

3. Part II CPM and Modification No. 1 to Contract 1E0012

The contract required M/P to submit its CPM Schedule for the Shaw Station project to WMATA for approval 120 days

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after the NTP on Part I, which M/P did on January 26, 1986. M/P’s schedule could not reflect events as they stood on September 3, 1985 because WMATA had not issued any modifications reflecting those changes.

The contract required WMATA to issue the NTP for Part II by March 4, 1986. However, by early February of that year, WMATA had not yet obtained the funding needed to issue the NTP for Part II work. SAF No. 578. As a result, WMATA’s Mr. McElhenny asked M/P’s Mr. Miner for a 60-day extension for this NTP on February 4, 1986. Mr. Miner responded with a proposal to have certain work from Part I exchanged with critical aspects of Part II to allow that Part II work to begin in a timely fashion, which led to negotiations between the parties. These critical items included support of excavation for the south vent structure. SAF No. 579-80.

The parties ultimately settled on changes embodied by Modification No. 1 to the contract (“Mod 1”), which was executed by WMATA on February 25, 1986 and by M/P on March 3, 1986. By this agreement, the parties agreed to extend the date for issuance of the Part II NTP by 60 days. In addition, Mod 1 stipulated that M/P could make “no claims ... as a direct result of the changes included in this Modification.” Pl.Ex. 74; SAF No. 581. The items of work exchanged between Part I and Part II in Mod 1 were as follows:

A. Part I activities redesignated as Part II requirements:

1. Standard Concrete Work, Units E574 — E585

2. Waterproof Roofs, Units E519— E585

3. Backfill, Units E519 — E585

4. Final Utilities, Units E519 — E585

5. Restoration, Units E519 — E585

6. North entraneeway Structural Concrete, Backfill, and Restoration

B. Part II activities redesignated as Part I requirements:

1. Support of Excavation, Utility Support, and Decking, including all Submittals, Units E504 — E514

2. Traffic Control for Item B.l above

3. Waterline W-2, Sta 46 + 57 to 51 + 21

4. Submittal for Tunnel Boring Machine

5. Submittals for Dewatering, Units E504 — E514

6. Submittals for Slurry Wall, Sta 46 + 70 to 50 + 40

7. Submittals for Instrumentation Part II

8. Submittals for Liner Details

9. Temporary Power Substation

10. Delivery of materials for items above

Pl.Ex. 74.; SAF No. 582. M/P received the NTP for Part II on April 4, 1986. SAF No. 581.

As a result of Mod 1, M/P was able to work in areas that had previously been designated as Part II work. This enabled M/P to try to catch up on the delays it had experienced due to the utility realignment and the traffic pattern changes. Despite its efforts, M/P was continually unable to meet deadlines that WMATA deemed critical, and the disagreements over scheduling became more frequent as the project fell further behind.

32

*175

After Mod 1 was issued, M/P focused on mobilizing the TBM in the South Bulkhead to start tunneling. As a result, M/P deferred work that would have otherwise been performed during this period. While M/P claims to have saved time with this approach, it did not commence excavation of the South Tunnels until January 23, 1987' — 99 days later than the scheduled start date of October 16, 1986 according to the approved Part II CPM schedule. SAF No. 598.

The parties dispute the cause of the delay and the responsible party. M/P believes that the traffic changes delayed in mobilizing the TBM and commencing excavation of the South Tunnels, largely by delaying excavation in the Rhode Island Avenue area, and that WMATA is contractually responsible for this delay. As set forth above, the Court has found that CPN 002 does not excuse these delays.

4. Other Early Performance Problems

While M/P satisfactorily executed and completed some of the early work, the station cut-and-cover work below 7th Street and the station areas’ concrete work progressed slowly. Tr. 12/13/1991, at 60. The project suffered from poor performance by M/P and its subcontractors,

33

equipment shortages and breakdowns, and inadequate safety maintenance. In addition, M/P experienced financial problems that impacted both this project and the U Street Station project, as described later in this opinion. While M/P argues that WMATA’s inspectors were overzealous and unreasonable, the Court finds that such characterizations, even if true, cannot explain away the deficiencies and problems that M/P was experiencing in the prosecution of the Shaw Station project.

34

The Court finds that, as the project progressed, M/P experienced delays and inefficiencies due to untimely and deficient performance by itself and its subcontractors and suppliers. WMATA claims that these delays were caused by poor quality control, insufficient manpower, inadequate equipment, and M/P’s constant bickering with its subcontractors. Tr. 12/13/1991, at 61;

see also

Revercomb Op. at *45. Further, WMATA contends that these deficiencies affected the work activities that M/P claims were impacted by the traffic claims of CPN 002 described above and the North Tunnel claims described below, Contractor Proposal Number 139 (“CPN 139”), including early utility work, concrete operations, station excavation, and the North Tunnel drive.

The Court finds that WMATA’s contentions have merit. For example, M/P experienced delays and inefficiencies throughout the Shaw Station construction project caused by untimely and deficient performance by its subcontractors and suppliers, often resulting from M/P’s failure to provide them with timely payments.

35

Indeed, the Court finds that, early in the project, Mergentime adopted a practice of delaying payments to subcontractors for its own convenience. In response to an April 17, 1987 letter from Perini’s Comptroller Patrick Monea inquiring about,

inter alia,

the “large increase” in accounts

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payable in late 1986, Def. Ex. 313, Mergen-time’s Tom Whalen explained that payments to vendors had been deferred to “increase the year-end cash balance.” Def. Ex. 321. Accordingly, numerous subcontractors complained about slow and delinquent payments from Mergentime from early on. Def. Exs. 350, 400, 1765, 1772, 1773, 1782. These subcontractors repeatedly pleaded for payments, explained their own financial hardship caused by the nonpayments, and threatened to stop work, often to no avail. Indeed, when M0?’s rebar subcontractor threatened to stop its work, it called M/P’s payments “delinquent” and “lackadaisical.” Def. Ex. 350.

M/P claims it held back payments to the subcontractors due to poor performance; however, the Court finds that, in many instances, M/P’s concern for its own financial welfare was the root cause of the nonpayments. In any event, M/P was responsible for the performance of its own subcontractors, and the delays caused by whatever poor performance may have occurred is still not WMATA’s fault. As M/P’s Project Manager Stephen Mergen-time testified, WMATA was not responsible for any of the delay to the project caused by the problems in meeting completion dates due to unavailable labor, materials, or equipment or by the failure of M/P’s various subcontractors to perform. Tr. 11/7/1991, at 154-55.

For example, M/P suffered frequent turnover and poor performance on the part of its subcontractors and suppliers of reinforcing steel bars (“rebar”) for the concrete work on the Shaw station. Def. Ex. 1581 (“Reinforcing” section). Rebar installation is a critical component of most construction projects given that it must be completed prior to concrete being poured in an area. Tr. 12/13/1991, at 61. In August 1987, Mr. Miner complained to its rebar subcontractor Paul Lee about “poor production rate, deficient workmanship, and constant change in project supervisors,” which Mr. Miner said were causing “devastating effects to the project.” Def. Ex. 403. Accordingly, Mr. Miner threatened to terminate Paul Lee.

Id.

Later complaints centered on defective installation of rebar for the lower and upper arches in the Shaw station. Def. Exs. 429, 440. Indeed, Paul Lee’s poor performance also caused delay and damage to the lower arch and upper arch concrete work in the station, as he often took two to three times as long as it should have been necessary to install the same ton of rebar because of the need to repeatedly perform remedial work.

36

Eventually, Paul Lee left the project in a dispute with Mergentime, Tr. 11/5/1991, at 65-67, and the successor Liberty Steel abandoned the project because of its inability to meet payroll.

37

*177

The need to repair or rework deficient concrete installations also impeded M/P’s performance. Dennis Hammond of Perini told WMATA’s Mr. Kolodne that the concrete work was “the worst ... he ha[d] ever seen.” Tr. 12/17/1991, at 126. Problems arose with M/P’s concrete suppliers as well.

E.g.,

Tr. 11/7/1991, at 147-48; Tr. 12/18/1991, at 27;

see

Revereomb Op. at *48. The Court finds that these problems, along with the rebar problems, were both M/P’s responsibility and caused significant delays to the Shaw Station project.

The Court finds that another factor in M/P’s delays was its own staff. M/P changed project managers, superintendents, and other critical managers several times during the course of the Shaw project. Six different men served as project manager on the Shaw project. Def. Ex. 1442. The Court agrees with WMATA’s Director of Construction, Walter A. Mer-gelsberg, who testified that frequent changes in project managers and other supervisory personnel were a disruptive force and detracted from the continuity of the projects. Tr. 12/13/1991, at 66-68. Further, the Project Managers lacked effective authority to restore the timeliness of the project, leading WMATA’s Contracting Officer Theodore Gay to institute periodic meetings with Mr. Mergentime, the Chief Operating Officer, to discuss the status of the project and means for getting the project back on schedule.

38

M/P’s equipment problems also affected the project, as performance was repeatedly delayed and disrupted by shortages and breakdowns. Tr. 12/13/1991, at 61, 71-73; Def. Ex.1988, at 58-62. Because it was performing five different jobs in the Washington, D.C. area for WMATA, M/P attempted to share critical pieces of equipment, such as cranes and concrete pumps, among the various projects. Tr. 11/7/1991, at 166-67; Def. Ex.1988, at 60-61; Def. Ex.1985, at 105-06. For example, M/P had only two concrete truck pumps and one trailer-mounted pump for all of its Washington-area jobs. Def. • Ex.1985, at 101-102. The availability of these pumps controlled the timing of critical concrete pours on the projects. Tr. 12/17/1991, at 11-12; Def. Ex.1985, at 72-74; Def. Ex.1988, at 61-62. In addition, M/P’s Superintendent at Shaw Station William Ray Rigsby admitted that the various pieces of equipment were frequently out of service. Tr. 11/5/1991, at 156-57. Even the TBM— perhaps the most critical piece of equipment — suffered from repeated breakdowns that caused delays on the North Tunnel drive. Retr. 10/16/2001, at 2711-12; Def. Exs. 1515,1581,1607.

Aso, M/P failed in its responsibility to control dangerous safety conditions. As described above, the contract required M/P to take measures 'to ensure that the work site was safe both for its workforce and the public.

39

However, M/P continual

*178

ly failed to comply with its contractual requirements regarding safety, resulting in working conditions that Donald Lahr, WMATA’s Safety Director, described as the worst he had seen in his 25 years in the construction industry. Tr. 1/3/1992, at 47,124-25;

see

Tr. 12/4/1991, at 17. These problems included a persistent lack of site cleanup resulting in unsafe conditions for the workforce and community,

id.;

Tr. 12/13/1991, at 75-76, inadequate housekeeping practices, Def. Ex. 162, 175, and improper sewage utilities maintenance, Def. Exs. 187, 189; Tr. 1/14/1992, at 14-15; Tr. 1/3/1992, at 48, 71-72.

5. Resequencing Claims

As discussed above, during the early months of 1987, M/P and WMATA began discussing plans to reorganize the work and negotiate a formal time extension to get the project back on schedule. These were the negotiations concerning MOA 1 and a settlement of CPN 002. The parties also negotiated other resequencing alternatives including changing the direction of the TBM tunnel drives and dropping specific claims. Pl. Exs. 80, 82; Retr. 9/20/2001, at 707-10.

M/P now contends that three major changes in sequence were WMATA’s responsibility: the change in sequence of (a) south tunneling operations, (b) the north tunneling operations, and © station invert and arch pours. Tr. 1/23/1992, at 91. However, the Court finds that these sequencing changes were elected by M/P and for its benefit.

Regarding the south tunneling operations, the contract called for excavation from the station area up to the interface with the E-la contract, for the TBM’s skin to be abandoned in place, for the TBM to be dismantled and remobilized in the station area, and for the second South Tunnel to be driven in the same direction to the interface with E-la. Def. Ex. 7. M/P, however, changed the sequence by turning the TBM around at the interface with the E-la project, and tunneling the second tunnel in the reverse direction. Tr. 11/7/1992, at 38-40.

While Mr. Warner, M/P’s scheduling expert, testified that this change was in “response to [WMATA’s alleged] directives to gain back lost time,” Tr. 1/23/1992, at 97, Mr. Miner testified that M/P had planned this change before bidding. Tr. 11/7/1991, at 38-40; Def. Ex. 293. The Court finds that this arrangement saved the time and expense of dismantling and remobilizing the TBM a second time, as well as the cost of the TBM skin that would have been abandoned in the E-la interface. Retr. 9/21/2001, at 819-20; 11/7/1991, at 38-40; Def. Ex. 293; SAF Nos. 628-29. Indeed, WMATA approved this change in sequence as a timesaving measure to benefit M/P. Tr. 11/4/1991, at 86; Retr. 9/21/2001, at 820 (finding change in tunneling sequence unrelated to Rhode Island change or Mr. Leech’s June 1986 letter);

see also

Rever-comb Op. at *45.

For the north tunneling, the contract originally called for M/P to drive the outbound tunnel first from the north end of the Shaw Station open cut to the crossover, retrieve the TBM and remobilize it in the station area open cut, then drive the inbound tunnel from the station area to the crossover at the north end. After U Street Station Contract was awarded to M/P, it proposed to turn the TBM around at the crossover between the Shaw and U Street Projects to save the time and expense of dismantling, removing, and remo-

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bilizing the TBM. The Court finds that this proposal was intended to benefit M/P.

However, the North Tunnel turnaround instead led to a 120-day delay because of the need to keep the inbound track open for mucking operations instead of doing cleanup and invert concrete work immediately after completion of the inbound tunnel. Mr. Warner again testified that this change was due to a desire to regain lost time as a result of CPN 002, Tr. 1/23/92, at 98-99, but the Court finds this analysis unpersuasive (especially given the delay caused by this change). Indeed, M/P offered no contemporaneous evidence that this change had anything to do with CPN 002.

As for the resequencing of station concrete, M/P has only identified an impact on station invert and arch pours. M/P planned to start with the E-539 invert and proceed north, then pour the station arches from north to south starting at unit E-579. Retr. 9/17/2001, at 1299; Retr. 10/16/2001, at 2689-90; Def. Ex. 1603. After pouring invert E-539 first on February 27,1987, Def. Ex. 1511; Retr. 9/27/2001, at 1303-04; Retr. 10/16/2001, at 2691-92, M/P poured inverts in a “skip and fill” manner, rather than sequentially. Retr. 9/21/2001, at 816-27; Retr. 10/16/2001, at 2690; Def. Ex. 1604.

M/P claims that it had deferred station excavation work in order to accelerate its efforts to ready the south bulkhead for the TBM to start tunneling, causing the station excavation to have not progressed enough to permit the planned sequence of invert and arch pours. However, the Court finds that nothing prohibited the planned sequence, and that its decision to adopt a “skip and fill” procedure had nothing to do with CPN 002. When it poured its first invert on February 27, 1987, M/P had already excavated and poured the mud mats for three units 150 feet to the north.

40

M/P’s plan was to have excavated two units ahead of each invert pour. Retr. 9/27 (Sublett) 1304; Def. Ex. 1271.. With the excavation completed three units ahead of invert E-539 and two units ahead of E-544, the progress of the excavation did not prevent M/P from pouring inverts in sequence to the north. Indeed, the station excavation thereafter proceeded apace and was completed by April 3, 1987. Def. Ex. 1612AA. Given M/P’s failure to bring forth any contemporaneous exhibit to the contrary, the Court finds that M/P could have proceeded with concrete work in a sequential, south-to-north manner as originally planned.

See, e.g.,

Revercomb Op. at *44-45. In -fact, M/P decided for its own convenience to change the sequence of the invert and arch pours.

Thus, the Court disagrees with M/P’s arguments that the tunneling or concrete work resequencing events were driven by an interest in gaining lost time due to delays associated with CPN 002, nor will it credit M/P’s attempt to cast responsibility for the resequencing on WMATA. Although the resequencing was “negotiated” with WMATA, the requests to do so were at the request of M/P and for M/P’s benefit.

6. North Tunnel Claims (CPN 139)

Both WMATA and M/P were aware the soil conditions in the North Tunnels presented difficulties for stabilizing the ground. Retr. 9/14/2001, at 295; Def. Ex. 10. The contract contains detailed information regarding geological conditions in the E-lc, tunnel and measures potentially required to control ground loss and to

*180

support utilities, including extensive specifications defining M/P’s responsibility for maintaining the ground during the tunneling operation. The parties have stipulated that these potential methods were “void fill” and “chemical grouting.” The former consists of pumping a mixture of flyash and bentonite through grout pipes into voids that develop in the tunnel as the TBM passes. Chemical grouting uses a sodium silicate mixture that is pumped into the ground in advance of the TBM to stabilize the ground before the TBM passes through. SAF No. 785-86.

M/P’s compliance with WMATA’s directives regarding grout filling led to Contractor Proposal Number 139 (“CPN 139”), under which M/P claims that WMATA owes it direct costs and delay and inefficiency costs resulting from grouting performed during the construction of the Shaw Station’s North Tunnels. The key issues associated with CPN 139 do not relate to whether there was a change.

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Rather, this Court must determine (a) the scope of grouting actually performed in comparison to the grouting directed by WMATA, (b) the extra costs M/P incurred as a result of the directed grouting, © the delays M/P experienced in the North Tunnel excavation, and (d) the extent to which these delays were caused by directed grouting as opposed to equipment breakdowns, boulder removal, and other factors within M/P’s responsibility.

a. The Contract

M/P claims that WMATA is responsible for M/P’s failure to support the soil while tunneling. However, while WMATA was responsible for directing M/P’s soil stabilization methods in specific areas that it designated, this Court finds that the contract specifications require M/P to support the ground, especially under utilities and other critical structures. Tr. 1/13/1992, at 49-50; Tr. 12/13/1991, at 85-104; Tr. 11/25/1991, at 27-28. The specifications warn of unstable ground and flowing material with virtually no stand-up time. SAF No. 796; Tr. 1/13/1992, at 50. After completing the South Tunnels, M/P specifically refurbished the TBM to prepare it for the soil conditions in the North Tunnel area. Retr. 9/14/2001, at 295.

Specific provisions of the contract defined M/P’s obligation to support the ground. For example, the contract imposed a duty on M/P to maintain the integrity of existing utilities, D. Ex. 1, and required that the utilities be maintained in place while completing the work. Pl.Ex. 3. In addition, M/P is required to prevent subsidence of surface structures and utilities.

Id.

This performance specification leaves M/P to determine the means of achieving that end. Tr. 12/13/1991, at 91. Further, the contract requires M/P to use chemical grouting as required to stabilize materials in the heading and/or to control ground water and to control loss of ground and surface subsidence, Def. Ex. 7; Tr. 11/4/1991, at 99, and to provide chemical grouting equipment on the site before starting the E-lc tunnels. Def. Ex. 7; SAF No. 796.

Finally, the contract contains detailed, information regarding geological conditions in the E-lc tunnel and measures that may be required to control ground loss and to support utilities. In general, the North Tunnels would be in a “mixed face” material, with the upper half of the tunnel in unstable “T” materials and the bottom half in “P” materials. Def. Ex. 7; Tr. 11/4/1991, at 91. Further, the contract

*181

warns of three to four feet boulders, the potential for settlement and difficulties of holding the ground, and flowing sand in the tunnel if proper measures are not taken to control the ground. Def. Ex. 7; Tr. 11/4/1991, at 94. Regardless, settlement under the streets had to be controlled by M/P. Def. Ex. 7. Several alternatives for controlling ground loss are listed, including chemical grouting,

id.,

and chemical grouting is referred to as a way of minimizing settlement under sewers that run across the tunnel alignment.

b. M/P’s awareness of potential grouting issues

As Judge Revercomb noted, at the time of the bid, M/P had planned to control ground loss by dewatering in advance of tunneling, using a closed face TBM for excavation to provide continuous ground support with the least amount of ground loss, and using precast tunnel liner with void filling grout pumped from within the TBM. M/P did not anticipate using either chemical or void filling grouting from the surface for the North Tunnel drives, and thus did not include the costs in its bid. Tr. 12/4/1991, at 126-129; Tr. 11/5/1991, at 128-149; Def. Ex. 13;

see also

Revercomb Op. at *58.

M/P argues that the soil conditions in the North Tunnel drive were a differing site condition, making WMATA responsible for all grouting that it performed to support the soil. However, the Court finds that M/P was aware of these soil conditions and the possibility that grouting would be needed. Indeed, Mr. Mergen-time himself testified that he was aware these soil conditions would be different from, and more challenging than, soil conditions in the South Tunnels. Accordingly, M/P refitted the TBM to adapt to the different soil conditions. Retr. 9/14/2001, at 289-90, 295. Further, Mergentime received a report from Dr. Edward Cording on February 20, 1985 regarding anticipated geological conditions in the North Tunnels. The report indicated that, given the potential for flowing sand, chemical'grouting could be required in parts of the North Tunnels. Def. Ex. 10;

see also

Def. Ex.1969, at 82-83.

After M/P submitted its initial submission of pre-award data on the Shaw Station contract, Mr. Mergelsberg noted a lack of adequate information regarding the use of chemical grouting. Tr. 12/13/1991, at 110-11; Def. Ex. 16. When these concerns were raised with M/P, Mr. Whalen responded in a July 15, 1985 letter providing supplemental pre-award information:

As per Specifications Section 228, we will have onsite chemical grouting equipment before commencing E-lc tunneling work.

Chemical grouting will be used if necessary to supplement dewatering and to prevent undesirable settlements

:... The methods, material and equipment would be as per project specification and subject to Engineer[’]s Approval.

Def. Ex.1903 (emphasis added).

c. Grouting plans

On March 3, 1987, Mr. Leech — WMA-TA’s Resident Engineer — directed M/P to submit a soil stabilization plan before tunneling started for the North Tunnels that would include provisions for chemical grouting if unstable ground conditions were encountered. Pl.Ex. 122; Tr. 10/30/1991, at 25-26; Tr. 1/13/1992, at 50-51, 54; Tr. 12/13/1991, at 113-14; Def. Ex. 1511 (PPRM No. 17). The request, which was a change to the contract, led to internal discussion at Mergentime regarding the contract requirements for soil stabilization, including an April 6, 1987 memorandum from Mr. Sterrett “outlin[ing] a plan for soil stabilization” for Mr. Goedjen,

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which noted that the contract’s provisions on chemical grout

use[s] wording such as “if,” “as required,” and “if necessary,” which [he] interpret[ed] to mean that this could be a secondary means of controlling ground movement and

they could make you initiate this plan if some other plan failed or was not adequate.

Def. Ex. 309 (emphasis added);

see also

Def. Ex.1969, at 122.

Mergentime initially planned to use void fill grouting for soil stabilization and no chemical grouting. Tr. 12/13/1991, at 114; Tr. 1/13/1992, at 54-55; Pl.Ex. 126. This soil stabilization plan was submitted by M/P on April 8, 1987, after Mr. Leech’s request. However, on May 1,1987, WMA-TA rejected this soil stabilization plan and requested chemical grouting as specified in the contract documents. Def. Ex. 319.

After negotiations, M/P resubmitted a soil stabilization plan on May 19, 1987, following WMATA’s directive to include chemical grouting that required M/P to perform the tunneling and grouting operations for the first 300 feet of the inbound North Tunnel, which was south of Peoples Drug Store. This plan required M/P to first install pipes every 10 feet along the centerline of the inbound North Tunnel from the surface to approximately five feet above the crown or top of the tunnel. These pipes would be installed in advance of the tunneling operation. Next, M/P would stop tunnel operations as soon as the front of TBM (the “shield”) passed the tip of each grout pipe. M/P would then pump grout at a low pressure into the grout pipe until the grout pipes would back up and grout spilled out at the surface. Subsequently, M/P would resume tunneling operations until the shield reached the tip of the next grout pipe, and repeat the cycle. Tr. 10/30/1991, at 28-33; PI. Exs. 136,139, 224.

M/P made clear that WMATA’s directive for a comprehensive chemical grouting plan, rather than a limited supplement to dewatering, was not contemplated in the original contract documents. PLEx. 136. M/P specifically requested a PCO for what it deemed extra work and included a cost proposal.

Id.;

SAF No. 1017. However, upon approving this plan on May 26, 1987 for the first 300 feet of the inbound North Tunnel operation, WMATA deemed it “a no-cost substitution for chemical grouting installation requirements of the contract in this limited area” with “additional evaluation [to] be made on the necessity for modification of the plan beyond the initial section.” Pl.Ex. 139;

see also

SAF No. 1018. M/P rejected the Contracting Officer’s no-cost assessment and claimed the approved soil stabilization plan was a betterment to the contract. PLEx. 142; SAF No. 1019.

d. Grouting performance and contemporary communications

Almost immediately after the TBM began tunneling in the inbound tunnel in June 1987, M/P began experiencing significant subsidence and “sink holes” at several locations along the inbound tunnel. As chronicled in Resident Engineer Leech’s diary, these “sink holes” occurred at various different locations between the station bulkhead and the 8th Street fan shaft. Tr. 1/13/1992, at 56-59.

Further, some of the grouting in the tunnels was for stabilizing the ground underneath the newly-constructed Peoples Drug Store at 7th and T Streets, N.W. WMATA acknowledged that grouting to stabilize the drug store constituted extra work and accordingly issued “Pending Change Orders” (“PCOs”) for that work. Tr. 12/13/1992, at 91. As a result of the subsidence at various locations in the inbound tunnel between the station bulkhead

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and the 8th Street fan shaft, WMATA wrote several letters expressing concern about protecting the ground during tunneling operations.

E.g.,

Def. Ex. 347.

In addition, delays occurred during M/P’s performance. M/P claims that the requirement for it to begin grouting from the surface as soon as the shield passes the tip of each pipe caused void filling grout to flow in front of the TBM into the “face” or “heading” of the tunnel. As a result, much of the void fill grout pumped around the TBM was excavated along with the earth, right back through the TBM. M/P claims that this result caused excessive wear due to the grout’s abrasive nature, thus causing the TBM to experience lost time for repairs to the conveyor belts that moved dirt excavated from in front of the TBM behind the machine. PI. FOF at 291. Despite the conflicting evidence on these issues, the Court finds that the TBM’s excessive down time was not caused by the grouting operations.

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As tunneling progressed, M/P’s soil stabilization efforts were failing, and the parties engaged'in numerous discussions of methods of soil stabilization. As a result, on July 13, 1987, WMATA authorized a change order, agreeing to pay the extra grouting costs in the vicinity of Peoples Drug Store to ensure that the store would not be damaged. P.Ex. 146. Nevertheless, M/P damaged approximately 1000 square feet of the store when it pumped excessive quantities of grout into the soil, which burst through the drug store floor. Retr. 9/21/2001, at 824. On September 21, 1987, WMATA issued PCO 031 to cover the added grouting costs in the vicinity of Peoples Drug in the inbound tunnel. Def. Ex. 450.

M/P’s failure to support the soil alarmed the DPW, which wrote a letter to Mr. Leech on August 4, 1987 complaining about “uncontrolled settlement” during the inbound tunneling operation. Def. Ex. 386. The letter noted that uncontrolled settlement had caused the 18-inch public sewer in the vicinity of T Street, N.W., and 7th Street to fail on July 24, 1987, and that other indications of massive ground loss were evident. Further, the DPW warned that “[sjettlement of this magnitude anywhere over the outbound tunnel or over either tunnel west of the fan shaft at 8th Street would be unacceptable ... due to the risk of damage to critical water and sewer facilities in the area.”

Id.

WMATA forwarded this letter to M/P on August 7, 1987.

M/P’s ineffective grouting program in the first section of the inbound tunnel was also noted by Mr. Mergelsberg in WMA-TA’s Office of Construction and by WMA-TA’s Department of Engineering. Tr. 12/13/1991, at 114-16 (explaining that initial grouting program “did not work”). In a memorandum to Contracting Officer McElhenny dated August 3, 1987, the Head of WMATA’s Field Engineering Branch referenced various problematic incidents resulting from over-grouting, including six incidents of voids progressing to the street surface, several incidents of material run-in endangering workers, and structurally damaging “heav[ing]” of the floor slab in Peoples Drug Store. Def. Ex. 376. After WMATA officials considered measures to strengthen the soil, Def. Ex. 314; Tr. 12/13/1991, at. 116-17, Mr. McEl-

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henny wrote Mr. Miner on August 5, 1987 about the ineffectiveness of void fill grouting, directing its discontinuance until farther notice because “[t]he results recorded to date indicate that [M/P had] neither met the performance requirements for ground control specified in the contract nor the intent of [its] soil stabilization program.” Def. Ex. 382;

see also

Tr. 12/13/1991, at 119. WMATA also directed M/P to submit a revised plan and included several recommendations, including that M/P consider using chemical grout for controlling ground loss. Def. Ex. 382; SAF No. 1041-43.

A series of sometimes heated communications between M/P and WMATA ensued during that month that included demands that WMATA submit a change order ordering full compensation for what M/P considered was work beyond the contract’s requirements.

See

SAF No. 1044; PI. Exs. 151, 155;

see also

Revercomb Op. at *68-69. On August 20, 1987, M/P submitted a revised plan that was accepted by WMATA eight days later, which provided for a combination of void fill and chemical grouting.

43

Based on this plan, M/P began tunneling from the 8th Street fan shaft; however, M/P experienced significant ground loss within a short distance. As a result, M/P then adopted an effective plan that used soil pre-treatment with chemical grout. Pl.Ex. 165.

In August and September 1987, senior management from WMATA (including Messrs. McElhenny and Mergelsberg) and Mergentime (including Mr. Mergen-time) discussed ways to stabilize the ground above the tunnels in the critical section between 9th Street and the Shaw/U Street crossover, a location with a heavy concentration of utilities. After some communication regarding the plans of operation in this area given the past inability to support the ground, WMATA and M/P agreed to share the cost of chemical grouting in certain areas where utilities were concentrated to ensure their support. Further, WMATA agreed to share in the cost of chemical grouting to ensure that the integrity of the utilities was maintained, and because directing chemical grouting took from the contractor his option to stabilize the ground by other means. Tr. 12/13/1991, at 122-24;

see

Re-vercomb Op. at *70.

In addition, the Court finds that M/P during this time determined that chemical grouting was cost efficient and faster than other soil stabilization methods. For example, M/P’s Mr. Miner wrote a memorandum to Mergentime outside counsel Stanley Sher on September 16, 1987 regarding the relative merits of a soil stabilization program emphasizing void fill (“replacement”) grouting versus a program of chemical grouting. His analysis indicated that use of chemical grouting throughout the remaining tunnel lengths would increase tunneling production and cost less than void fill grouting. Mr. Miner concluded “that the chemical grouting program (Part II) [would be] the more cost effective way to complete the project.” Def. Ex. 437; Tr. 11/4/1991, at 107;

see also

Revercomb Op. at *70.

On September 14, 1987, M/P submitted another revised soil stabilization plan for

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this section of the tunnel near a heavy concentration of utilities. Def. Ex. 1362. A week after M/P submitted this plan, Mr. McEIhenny wrote to Mr. Miner on September 21, 1987 regarding these management-level discussions about soil stabilization. In this letter, he explained that, these discussions reflected a mutual technical agreement that more soil stabilization was needed through the use of chemical grouting before tunneling; however, concerns remained about contractual issues regarding the liability and the extent of a performance related soil stabilization plan. Mr. McEIhenny stressed the importance of obtaining chemical grouting capability for use in the remainder of the E-l© tunnel drive. Def. Ex. 449;

see also

Revercomb Op. at *70-71.

M/P responded with a letter dated two days later, which signaled its intentions to perform chemical grouting where significant protection of structures and/or utilities was required per M/P’s determination unless there was written direction to the contrary and to hold WMATA responsible for the costs. The letter also requested again a change order for this work. Def. Ex. 458; SAF Nos. 1083-84;

see also

Re-vercomb Op. at *71. Indeed, M/P personal confirmed that grouting did occur on M/P’s own initiative in the last 150 feet of the outbound tunnel. Pl.Ex. 219; Tr. 11/4/1991, at 111.

WMATA issued PCO 033 to cover the parties’ agreement for chemical grouting between 9th Street and the crossover. Def. Ex. 553. M/P agreed to bear a minimum of $200,000 of the cost of this chemical grouting, while WMATA agreed to pay the balance, not to exceed $900,000. In a letter confirming this agreement dated October 2, 1987, Mr. Leech reminded M/P that WMATA’s “participation in the cost of chemical grouting is limited to those specific areas that [it] identified].” Def. Ex. 469. This letter touched off communication between the parties disputing whether M/P could interpret Mr. Leech’s letter to constitute a NTP on chemical grouting with cost sharing. SAF Nos. 1093-94.

Through the rest of 1987, M/P proceeded with tunneling operations, which included chemical and void fill grouting work.

44

Wfliile this work continued, the parties continued to argue regarding the responsibilities for the costs of the soil stabilization program. For example, in conjunction with several revised cost proposals for soil stabilization changes for different portions of the North Tunnel submitted in late October and early November, M/P reiterated to WMATA that it considered the entire grouting program a change to the contract, thus making WMATA responsible for the costs in a letter dated October 30, 1987:

Concerning the chemical grouting program from the surface, in advance of tunneling, the Mergentime/Perini position has always been that this effort, in its entirety, is a change in scope. This type of program is not required by the Specifications, and we have consistently held that all costs (direct and indirect) to implement and carryout this program would be the responsibility of [WMA-TA],

Pl.Ex. 187. However, Mr. Leech sent a series of letters to M/P in November 1997 insisting that chemical grouting outside such areas identified by WMATA was

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within M/P’s contractual responsibilities to support the soil and to M/P’s account.

See, e.g.,

Def. Exs. 510, 517,1904.

By this time, M/P was reporting that it was 74 days behind schedule for the contract completion date. Def. Ex. 1511. The early utility work, station excavation, the South Tunnels, and the station inverts in the south vent and service area and the station and platform area had been completed. Retr. 10/3/2001, at 1394-940; Def. Ex. 1604. Thus, with the South Tunnels work completed, M/P was required to then focus on the work it had deferred to complete the tunnels. At the time, M/P was continuing to mine the North Tunnels, and was still working on pouring upper and lower station arches and walls in the southernmost portions of the stations. Def. Exs. 1511, 1604. Further, M/P had yet to start construction on the station walls or inverts in the station’s northernmost portion or the North Tunnel concrete work. Further, very little backfill and restoration activities had been performed. Retr. 10/3/2001, at 1394-940.

On December 2 and 3, 1987, M/P’s Business Manager Ralph Bradford and WMA-TA’s William Linde and Robert Zaepfel met to negotiate M/P’s PCO 031/CPN 035 claim for grouting under Peoples Drug Store on the inbound North Tunnel drive. According to meeting minutes, Mr. Zaepfel “pointed out that WMATA did not envision impact, inefficiency, time, or extended performance costs in this change to the contract, and that WMATA’s position on this PCO was for far less” than the costs and time extension proposed by M/P. Pl.Ex. 200; SAF No. 1128. Nevertheless, the negotiations settled on direct costs for the claim. Tr. 11/25/1991, at 83-86. On December 4, 1987, as M/P continued mining the outbound tunnel, WMATA issued PCO 035 for grouting under the drug store in the outbound tunnel. Def. Ex. 537; SAF No. 1037.

As M/P tunneled closer to Peoples Drug Store, WMATA issued additional grouting directives required by the differing site condition the store represented. After informing that a PCO would be issued for soil stabilization work beyond the scope of the contract, WMATA acknowledged that Peoples Drug Store was not shown on the contract documents and that the existing parking lot was replaced by a new parking lot. In addition, WMATA noted that M/P was “responsible to stabilize the soil in public and private lands while tunneling to limit ground subsidence and to leave the ground in a consolidated state.” Pl.Ex. 203; SAF No. 1133. This new soil stabilization plan for Peoples Drug Store involved chemical grouting, void fill grouting the store’s perimeter, and other void filling as needed. On December 10, 1987, WMA-TA advised M/P of the approval from Peoples Drug Store for void fill and chemical grout operations in the area to commence. Pl.Ex. 206; SAF Nos. 1134-35. On the same day, M/P submitted its PCO 035/ CPN 105 cost proposal and requested WMATA to begin negotiations for this change. Pl.Ex. 207; SAF No. 1136-37.

On December 15, 1987, WMATA directed M/P to employ chemical and/or void fill grouting to stabilize the soil for the remainder of the outbound tunnel, from Peoples Drug Store to the North Bulkheads. Pl.Ex. 209. A few weeks later, WMATA issued Modification No. 015, Part I to the Shaw Contract on December 29, 1987. The modification called for “non-toxic chemical grout in advance of tunnel excavation to stabilize the soil above the tunnel alignment to avoid the risk of significant damage to utilities.” Def. Ex. 553. Further, WMATA increased the contract price by $500,000 for grouting covered by PCO 033.

45

*187

M/P signed and returned the Part I Modification No. 15 on January 5, 1988, reserving the right to claim further reimbursement for the other soil stabilization grouting that WMATA directed. PI. Exs. 216.

Between December 1987 and February 1988, tunneling and grouting operation commenced. On various occasions, ground subsidence occurred that damaged utility lines under Peoples Drug Store. SAF Nos. 1140,1143. Regarding an occurrence in January 1988, WMATA directed M/P to undertake the necessary repairs with the costs covered by insurance as part of PCO 035, SAF No. 1143, and M/P responded that it would adjust its claim under PCO 035 for any received insurance payments. Pl.Ex. 223.

M/P completed the void fill grouting, chemical grouting, and tunneling of the outbound tunnels to the North Bulkhead between February 1,1988 and February 9, 1988. SAF No. 1144. Subsequently, M/P dismantled the TBM, removed the tunnel support equipment, and cleaned up the two North Tunnels in preparation for tunnel invert concrete work through April 1988. Pl.Ex. 17. M/P also began the North Service Area concrete inverts, which had been delayed by the North Tunnels drive.

46

e. Post-completion claims communications

On March 22, 1988, M/P forwarded its PCO 035/CPN 105 claim for the cost of the soil stabilization program while driving the outbound North Tunnel under Peoples Drug Store. SAF No. 1148. Several months later, on May 11, 1988, M/P consolidated its many claims on the North Tun-neis into one comprehensive proposal in the amount of $6,176,271, with a comparable time extension of 103 calendar days to cover all extra costs incurred due to the changes on the inbound and outbound tunnel drives. This consolidated claim was designated CPN 139. Pl.Ex. 224; SAF No. 1149.

On July 5, 1988, the Contracting Officer issued Modification No. 16, which covered only PCO 031/CPN 035 for the grouting under Peoples Drug Store during the inbound tunneling operations. Pl.Ex. 225. While this modification acknowledged a change in the contract in the amount of $183,256, it did not change the contract time. Despite the January 1988 agreement between M/P Business Manager Mr. Bradford and WMATA negotiators that M/P would reserve the right to claim additional costs due to impact, inefficiency, time, and extended performance, the modification included language that stated that the terms “constitute a full accord and satisfaction for all costs and time of performance.”

Id.

The Court finds that WMATA was taking advantage of M/P’s weak financial position, as Mr. Zaepfel testified that WMATA “understood that [M/P] needed money on the job and had agreed to the dollars so the mod[ification] was prepared with accord and satisfaction language in it as a negotiation ploy, a strategem if you like.” Tr. 11/25/1991, at 88. M/P returned Modification No. 16 unsigned and requested that WMATA issue a final decision on the increased costs for inefficiency, impact, times, and extended performance reserved in the January 1988

*188

Summary Record of Negotiations. Pl.Ex. 226.

Though negotiations on CPN 139 would continue,

47

the parties were at an impasse. Contracting Officer John McElhenny issued his final decision on this claim on May 10, 1990, which was one day before termination. This decision largely denied M/P’s claim and disallowed any recovery for the costs beyond those related to Peoples Drug Store. This decision found that, including the payments made during the negotiations with Mr. Egbert, M/P had been paid almost $6,837,000 for this claim. Pl.Ex. 679.

f. Evaluation of claims

M/P has claimed that WMATA directed the following efforts during the construction of the North Tunnels that were beyond the contractual requirements:

1. For the. inbound North Tunnel Drive, void filling grout placed from the surface in advance of tunnel boring operations for the first' 300 feet of the inbound tunnel from the North Bulkhead to the south side of Peoples Drug Store by the use of 3-inch diameter grout pipe placed every 10 feet along the center line of the tunnel (CPN 079).

2. For the inbound ' North Tunnel Drive, void filling grout placed from the surface in advance of tunnel operations from the south side of Peoples Drug Store to the east side of 8th Street (PCO 031/CPN 035, Modification 15, Part I).

3. For the inbound North Tunnel Drive, void filling grout placed from the surface in advance of tunneling from the 8th Street Fan Shaft Structure to 9th Street (CPN 096 — later included in CPN 079).

4. For the inbound North Tunnel Drive, chemical grouting and void filling grout from the surface in advance of tunneling operations from 9th Street to the Crossover at Vermont and U Streets for the inbound tunnel (CPN 088, CPN 089, Modification 16, Part I).

5. For the outbound North Tunnel Drive, chemical grout and void filling grout from the crossover at U Street to the 8th Street Fan Structure (CPN 102, CPN 103, Modification 16, Part I).

6. For the outbound North Tunnel Drive, chemical and void filling grout from 8th Street to the north side of Peoples Drug Store (CPN 096).

7. ‘ For the outbound North Tunnel Drive, chemical and void filling grout from the north side of Peoples Drug Store to the south side of Peoples Drug Store (CPN 105/PCO 0350).

8. For the outbound North Tunnel Drive, chemical grout from the south side of Peoples Drug Store to the North Bulkhead (CPN 123).

9. Dewatering and boulder removal, including WMATA’s directed changes in piezometer locations that allegedly forced M/P to perform additional dewa-tering in an attempt to lower the water table below elevation 47 (CPN 081) and other changed conditions included oversized boulders allegedly causing delays and increased costs.

10. Soil Stabilization Plan, including WMATA alleged requirement that M/P submit a soil stabilization plan beyond the scope of the contract, which resulted in delay and expense.

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M/P’s CPN 139 was a compilation of the CPN/PCO’s caused by the above changes.

48

WP’s original CPN 139 (as of May 11, 1988) claimed 103 days of delay; however, the revised CPN 139 claim submitted after many negotiations in March 1990 asserted a total of 113 calendar days. Pl.Ex. 506, at 87-90. As noted above, the original CPN 139 claimed $6,176,271. The North Tunnel Drive represented the second largest element of M/P’s bid cost of $6,483,297. The actual cost was $10,560,164, which included the cost of the unanticipated grouting. Therefore, the North Tunnels cost overran by 64%. PL Exs. 18, 506, 736;

see also

Revercomb Op. at *79.

Generally, the Court finds that, in light of its determination that chemical grouting was superior to other methods of soil stabilization (as represented in Mr. Miner’s memorandum to Mr. Sher), M/P used extensive chemical grouting in areas other than the key utilities and structures in a successful attempt to improve productivity. Indeed, M/P admitted to having grouted on its own initiative in portions of the outbound tunnel. PLEx. 219; Tr. 11/4/1991, at 111;

see also

Revercomb Op. at *74. Accordingly, the Court finds that WMATA is not responsible for such areas where M/P used chemical grouting.

49

While WMATA acknowledged that grouting to stabilize the drug store constituted extra work and accordingly issued PCOs for that work, much of the chemical grouting was to M/P’s own account. WMATA also agreed to pay for a portion of the costs of grouting between 9th Street and the Crossover, and directed void fill and/or chemical grouting in various areas.

50

As described above regarding PCO 033, M/P agreed to shoulder a minimum of $200,000 of these costs for chemical grouting in the area between 9th Street and the crossover, while WMATA agreed to pay the balance not exceeding $900,000. The Court finds that WMATA’s participation-in the cost of chemical grouting was limited to those specific areas that it identified. Def. Ex. 469; SAF No. 1093.

IV. U Street Station Project Provisions and Early Performance

The U Street Station contract called for M/P to excavate a large trench approximately 1830 feet long in U Street in the Vermont Avenue area. SAF Nos. 830-31. As with the Shaw Station, this contract called for excavation by the “cut-and-cover” method. SAF No. 832. M/P was to construct a structure of reinforced concrete, comprising the U Street Station it

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self, the two station entrances and service areas, one at each end of the station, and two sections of concrete box tunnels. Afterward, M/P was required to place dirt or “backfill” over it to bury the entire structure while replacing utility lines, and performing surface restoration once the back-fill reached ground level. Pl.Ex. 894. Unlike the Shaw Station job, the U Street Station project involved no machine-bored tunnels. The parties agree on many of the material facts surrounding the U Street contract, and the Court adopts those stipulations and the corresponding findings of Judge Revercomb while finding as follows.

A. U Street Station Contract Provisions

Along with the contract provisions described above, the U Street Station job was also governed by various provisions unique to the project, which set forth construction sequence and deadlines, among other things.

1. Sequencing

As with MTP’s other job, the U Street Station contract was divided into two parts due to funding limitations. Funds for Part II were expected to be available within 180 to 240 days from the NTP for Part I. SAF No. 833.2. The two parts were divided on a geographical basis, with Part I including (1) the relocation of utilities and surface preparation work on the east side of the project; (2) the installation of soldier piles and slurry walls and the excavation of the main station trench; and (3) the construction of the East Vent Shaft, the East Entrance and East Service Area and U Street Station. Part II work included (1) the same relocation and surface preparation work for the west side of the station; (2) the installation of soldier piles and slurry walls and excavation of the open cut trench for the West Entrance and West Service Area, the West Line Section, and the West Interim Fan Shaft; (3) the construction of the West Entrance and West Service Area, the West Line Section, and the West Interim Fan Shaft; and (4) conducting all surface restoration.

51

Further, the contract set forth a construction sequence for M/P to follow. As described above, the project was split into two parts, which would total 39 months. The Part I term would occur over the first 33 months of the project, while the Part II term would occur between the 7th and 39th months. SAF No. 837. During the first 12 months, work that was needed for both Part I and Part II work included the following: mobilization and preparatory work; engineers facility; set piles and construct slurry walls for support of excavation; replacement of gas lines by Washington Gas Light Company (“WGL”); and constructing temporary sewers, replacement of water, and electrical utilities prior to decking installation. Work specific to Part I included decking installation and utility support, U Street Station and East Structure construction (including excavation and ground support), the beginning of “button-up” (if required), and streetcar track removal (to be completed before September 1,1986). Part II-specific work, if this work was undertaken, during this

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12-month period would include excavation and ground support and preaugering and setting piles on the line.

Id.

During the second year of the project (the 13th-24th months), the Part I work and Part II work (if undertaken) would continue. Part I work would be on the U Street Station (including slab on grade, lower arch, and upper arches), the East Structure (including slab on grade, walls, roof, columns, and suspended slabs), and backfill over structures to utility levels. The Part II work would be completion of the slurry wall and soldier beam and lagging, completion of replacement of utilities, completion of decking installation and utility support, completion of excavation and ground support, constructions of the station (including platform, mezzanine, and safety walk work), construction of the East and West Structure (including slab on grade, walls, roof, floating slab, mechanical, and electrical piping), and construction of the line (including preaugering piles, excavating, lagging, and starting slab on grade).

Id.

During the third year (25th to 39th month), Part I work would be completed by the 33rd month of the project. The remaining Part I work would be station construction work including completion of upper arch and dome relief vents, restorations of supported utilities, removal of decking, completing of backfill operation, and street restoration. If required, the “button-up” of Part I construction would occur, including site grading; street and sidewalk restoration; work on storm sewers and water distribution system, ducts, and manholes; and construction of watertight bulkheads. Part II, if undertaken-, would encompass the entire third year. This work included completion of the following items: platform, mezzanine, safety walk and remaining structural concrete work; backfill above structures to utilities level; sewer and drainage system installation; support utilities restoration; decking removal and backfill operations; street restoration; finish work on all sections; architectural items; and mechanical and electrical equipment installation. In addition, M/P was to perform equipment testing.

Id.

2. Deadlines

In addition, the contract established interim and final completion dates for portions of the job. The inbound and outbound trackways were to be completed in 940 days after receiving the NTP on Part I, or November 25, 1988. Work for the permanent power and all branch circuits, the traction power substation, the train control and communications room, escalator wellways, elevator hoistways and machine rooms, and the kiosk area was to be completed in 1035 days after receiving the NTP (February 28,1989). Regarding final work completion, M/P was required to complete Part I in 1000 days (January 24, 1989) and Part II in 1190 days (August 2, 1989) after the NTP. The contract also set forth provisions for liquidated damages allowed for each calendar day of delay. SAF Nos. 834.1, 835.

B. M/P’s Planned Performance

On April 30, 1986, M/P received the NTP for the project. The contract period for the work was 1190 calendar days, making the original contract completion date August 2, 1989. The contract also established interim milestone dates for certain identifiable portions of the work. Notably, just as with the Shaw Contract, the contract required M/P to use this NTP date of April 30, 1986 as the date for its original Part I and Part II schedule submittals. Thus, M/P could not take into account any events occurring after April 30, 1986 but before the date that the schedule was actually submitted to WMATA for approval. SAF No. 840.

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M/P would work from the east end of the project toward the west end, performing the following nine major construction operations called for by the contract in the following general sequence:

a.

Surface preparation:

relocate or replace various utilities, including temporary sewer lines, water lines, PEPCO electrical lines, telephone line, etc., to allow follow-on excavation work to begin as the utility work proceeded west along U Street;

b.

Support of excavation:

installing either soldier piles and/or slurry walls around the area to be excavated, in preparation for decking;

c.

Decking:

installing cap beams, deck beams and decking on top of the soldier piles and/or slurry walls, and excavating down about 15' so that work under U Street could proceed w[h]ile traffic was being maintained above;

d.

Excavation:

“mass” excavation under the decking down to subgrade 60' below U Street, with addition of wales and struts to the support of excavation system, as excavation progressed downward;

e.

Concrete work:

once excavation was down to grade, M/P would perform the concrete work; inverts, lower and upper arches, as well as the East and West Entranceway/Service Rooms, again moving east to west;

f.

Backfill up to utility level:

upon completion of the concrete upper arches, M/P planned to start backfilling and restoring permanent utilities, beginning at Vermont Avenue and working west to 14th Street;

g.

Installation of permanent utilities;

h.

Backfill to surface:

following installation of the permanent utilities, M/P would remove the deck beams, allowing the backfill to be completed;

I.

Surface restoration:

complete the surface restoration, again moving from Vermont Avenue west to 14th Street.

SAF No. 844.

The approved Part II CPM Schedule divided contract performance into three major phases:

a.

Phase One:

From the Notice-to-Proceed on April 30, 1986 to March 4, 1987, M/P planned to perform the surface preparation, support of excavation, decking and excavation operations to a point where concrete work could begin. The key targeted event during the period was the start of concrete work.

b.

Phase Two:

From March 4, 1987 to February 27, 1989, M/P expected to complete concrete operations, and electrical, mechanical and architectural work leading to the interim completion dates. The important targeted events during this period were the interim completion dates specified in the contract.

c.

Phase Three:

From February 27, 1989 to August 2, 1989, M/P planned to complete backfilling, utility installation and surface restoration.

SAF No. 844.1. Given that the work west of U Street Station was the Part II work, M/P planned to begin at the east end of the project and move west to the Interim Fan Shaft on 14th Street. SAF No. 845.

In addition, this plan would also allow M/P to complete the concrete work on time, which was the most time-consuming part of construction operation and on the critical path to the interim and final completion dates. Indeed, M/P had estimated that the major concrete work would take 18 months to complete. By starting at the east end, M/P could complete this 18-month activity in time to meet the Interim Completion Milestones for Escalators, the Train Control Room and Communications Room and the Traction Power Substation in the East Service Area. Only upon com

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pletion of this concrete work could M/P perform the electrical, mechanical, and architectural work remaining to meet the interim completion dates. Thus, timely completion was dependent upon an orderly and efficient performance of the concrete work, which in turn required M/P to start in the east. SAF No. 845-47.

C. U Street Station Performance

The actual construction sequence closely followed the planned sequence outlined above.

52

M/P mobilized its forces, obtained permits, performed utility relocation work between Vermont Avenue and 13th Street, and performed certain preliminary work at the project’s west end in 1986. The next year brought support of excavation work, which began at the east end and progressed toward the west end. In addition, M/P completed the east end’s excavation work and started the structural work at both the east and west ends of the project. In 1988, M/P completed most of the station arch work, finished the lower structure in the east service area, and laid a portion of the foundation slab. In 1'989, M/P completed the lower structural work, the twin box tunnels at the west end, and the floating slab work. By the time WMATA terminated M/P in May 1990, and M/P had completed the structure at the east end, but finish work was still underway in the station and the west service area. SAF No. 850.

1. PCO 001 (Changes to PEPCO Manholes and Ductbanks)

PCO 001 refers to the changes involving the electrical utilities, including the layout and size of many of the concrete manholes for the project, Def. Ex. 133, which M/P argues caused major disruptions to its CPM schedule and performance of the contract. Revercomb Op. at *91 (detailing M/P’s claims). The history of this particular claim began on May 1, 1986, the day after M/P received the NTP on Part I, with WMATA’s letter to M/P regarding these utilities changes. Def. Ex. 133.

In this letter issuing PCO 001, WMATA Resident Engineer Eric Schmidt noted that a “narrative description of the changes ... [was] attached for [M/P’s] use in planning utility and excavation support work.” Pl.Ex. 258. The Court finds that these changes, as described by Mr. Schmidt, “resiz[ed] several utility drawings in order to get them to ... comply or coincide with the P[EPCO] permit drawings that had been submitted.” Retr. 10/11/2001, at 2364. Further, most of these changes were minor adjustments in the location or configuration of manholes, while the number of manholes remained the same.

Id.

at 2366. The only significant change was to move manholes and an electrical duct bank between 12th and 13th Streets, on the west end of the job, from the sidewalk into the open cut area. Def. Ex. 133; Tr. 12/19/1991, at 66-69. The remaining changes to the manholes were merely adjustments made to the drawings before any work had been performed.

Id.

While PCO 001 was formally issued in September 1986, M(P began the manhole

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work on July 3, 1986. Retr. 10/11/2001, at 2368; 'Tr. 12/19/1991, at 69. Indeed, the utility work occurred on the east end of the project between July 1986 until January 1987. Def. Ex.1920; Tr. 12/19/1991, at 71-76. The key milestone in the utility work was completion of the sewer flume and utility tie-ins on the north side of U Street, which were completed in early January 1987,

id.

at 71-76, which allowed excavation support activities to begin with the first slurry walls in mid-January 1987. Retr. 10/11/2001, at 2388-89; Tr. 12/19/1992, at 71-76.

WMATA later recognized that PCO 001 and other utility changes affecting electrical utilities caused a delay of 59 calendar days. Retr. 10/11/2001, at 2368-72; Tr. 12/19/1991, at 76. The impact of PCO 001 ended with the start of the support of excavation work, at the time the first slurry panel was installed between January 9-13,1987. After that point, all delays to the support of excavation and excavation activities were under M/P’s control.

53

No M/P witness, in either trial before this Court, rebutted the WMATA testimony that the impact of' PCO 001 ended at this time. Thus, the Court agrees that the impact of PCO 001 ended in early January 1987.

54

M/P did not submit its first cost proposal on PCO 001 until August 11, 1989, requesting $843,400 in compensation and a 110-day time extension. Def. Ex. 967. On August 24, 1989, WMATA issued modifications totaling over $400,000 relating to PCO 001 based on its estimate of the extra costs. Def. Ex. 1410. Indeed, M/P was entitled to this compensation and the 59-day time extension. M/P claims support for more compensation by pointing to WMATA’s own internal audit of PCO 001 and the testimony of WMATA’s expert witness Mr. Ramos. PI. FOF at 346. The Court finds that M/P’s arguments are misplaced for various reason, including the fact that the audit did not examine the request for time and Mr. Ramos had been discussing additional issues.

2. PCO 004 (Sewer Flume Conflict)

PCO 004 involved a conflict between a sewer flume and a high-voltage power line. Specifically, the power line was lower than shown on drawings, thereby interfering with the top of the sewer. Retr. 10/11/2001, at 2376. M/P discovered this conflict on June 30, 1986, while digging a trench for a temporary sewer line between 11th Street and 12th Street. This differing subsurface condition interfered with the planned location of the temporary sewer line. PL Exs. 263, 268. M/P offered a resolution to the conflict by inserting an elliptical section of sewer flume to fit below the electrical line. Retr. 10/11/2001, at 2376. The work on this continued until mid-September 1986. Pl.Ex. 394.

After notifying WMATA about the new conflict and resulting delay on July 2,1986, M/P submitted its PCO 004 cost proposal on July 19, 1986. This proposal was supplemented on August 6th and covered the cost of fabricating and installing a transition chamber to correct the problem, while indicating that a request for extended

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overhead and a time extension would be submitted in the future. Pl.Ex. 268.

Exactly a year later on April 6, 1987, M/P submitted a time delay analysis for PCO 004 that noted a delay of 77 calendar days to the critical path. Pl.Ex. 312. On January 22, 1988, after a later analysis of the as-built schedule, M/P noted a 98-calendar day delay when compared against the as-planned schedule. Pl.Ex. 337. On June 30, 1988, WMATA denied MP’s request for a time extension and time related costs because the work affected by the conflict was not on the critical path at the time the conflict was being corrected. Def. Ex. 667.

M7P and WMATA were unable to finally resolve the difference. On August 3, 1988, M/P returned Modification No. 17 to WMATA unsigned and requested its issuance on a unilateral basis to provide for direct costs of the work. Ultimately, this modification was issued for $10,968 with no extended performance time. Def. Ex. 682.

The Court finds that M/P has not substantiated its claim for delay and costs as to PCO 004. There clearly was a delay to flume work while the elliptical sewer section was being fabricated. Retr. 10/11/2001, at 2376-77. However, because the work affected by the conflict was not on the critical path at the time the conflict was being corrected, Def. Ex. 667; Retr. 10/11/2001, at 2377, M/P is not due any time or related costs.

55

Thus, the Court finds that M/P was only entitled to $10,968.00 for the work on PCO 004, and there was no resulting significant delay to M/P during the early stages of the project.

3. CPN 002 (Gas Company Strike Delay Claim)

On May 6, 1986, the parties to the contract met with WGL to coordinate its replacement of gas lines around Vermont Avenue and 10th to 11th Streets. At this meeting, the parties confirmed that WGL would perform the actual relocation of the gas lines in that area as contemplated by the contract. For its part, WGL claimed it would complete its activities so that M/P could begin its work in these areas. SAF No. 860. Specifically, WGL stated it would finish relocating the 8-foot gas line between Vermont Avenue and 11th Street sometime between June 1 and June 15, 1986. This two-week window was needed due to the uncertainty involved in removing abandoned street car tracks on 11th Street. SAF No. 861.

Several weeks later, a strike by WGL’s workers prevented it from meeting those dates.

Id.

M/P assigned CPN 002 to cover the resulting extra costs on June 23, 1986, notifying WMATA of a delay to the project resulting from this strike that prevented the timely relocation of gas lines. The ongoing strike and corresponding delay in completing the gas line relocation had slowed M/P’s effort to set up its maintenance of a traffic program, conduct test pitting operations to locate utilities, and proceed with sewer installation. Pl.Ex. 260.

WMATA expressed that it found M/P’s claim without merit through a June 25, 1986 letter from Mr. Schmidt. Def. Ex. 1414. WGL did not actually finish the gas line until on or about July 12,1986. A few days later, M/P requested a “Contracting Officer’s Final Decision” regarding CPN 002 on July 16, 1986, while disclosing the 25-calendar day delay to the work. Pl.Ex. 265. WMATA responded two months later on September 15,1986 that the request was still being reviewed. PI. Exs. 284.

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On April 6, 1987, M/P provided additional supporting. information to WMATA, including an analysis showing that the strike ultimately delayed completion of the gas line work by 27 days and caused a delay of 10 calendar days to the critical path of contract work. Pl.Ex. 311. WMATA conducted another time analysis of the claim as of May 1987 and recommended no change in time, and Mr. Schmidt again denied the request in July 1987.

The Court agrees with the reasons for denying ■ the claim as stated by Mr. Schmidt. The Resident Engineer concluded that the strike did not delay

M/P’s

work for three reasons. First, the U Street Station work was conducted by a. gas company contractor, whose workforce was not involved in the strike. Second, the sewer flumes, the material for the utility work M/P claimed was delayed, were not onsite at the time M/P claimed a delay. Third, the flume work was not on the critical path. Mr. Schmidt found that M/P completed the traffic control set up days before the scheduled July 2, 1986 late-finish date, and began work on the sewer flume. Retr. 10/11/2001, at 2372-74; Tr. 12/19/1991, at 77-78; Tr. 12/20/1991, at 141-42; Def. Exs. 156, 366, 1414. M/P claims that WMATA failed to consider that WGL did not actually finish the gas line until July 12, 1986; however, the final completion date does not change the underlying reasons for the initial dismissal. The Court finds that M/P is not entitled to a compensable time extension for CPN 002 for this project.

4. CPN 008 (Revision of Water Utilities)

CPN 008 also involved a claimed delay on the early utility work on the U Street Station project. On August 8, 1986, M/P asserted that problems had occurred with its attempt to acquire waterline installation permits. Pl.Ex. 269. M/P claimed that delays in processing the permits caused delays to its waterline work because of alleged unreasonable resubmittal requirements and extensive or excessive review times for M/P’s waterline permits. Retr. 10/11/2001, at 2374.

WMATA denied M/P’s request for a time extension. As Mr. Schmidt explained at the retrial:

[T]he time period mentioned in the contract for submittal reviews is not a maximum time. It is a minimum time. So there’s no guarantee that [M/P will] get anything back in the 21 days[] that [M/P] was saying was the limit.

Id. at 2375. Further, both WMATA and the DPW concluded that any delays in approval of M/P’s water line drawings were attributed to the need for M/P to make three resubmittals of its drawings in light of a failure to check for interferences with other utilities when modifying the water main plan, the omission of profiles for some water main segments, and the submission of virtually illegible markups of poor quality.

Id.

at 2375; Tr. 12/19/1991, at 79431; Def. Exs. 181, 260. The Court finds credence in the contemporaneous letters by WMATA and the DPW respecting this issue, Def. Exs. 181, 260, and finds that this claimed delay is not warranted.

5. PCO 012/CPN 005 (Power Line Conflict)

On May 19, 1986, M/P discovered that an existing 138 Kilovolt power line interfered with the support of the excavation system for the east entranceway of the station. Because M/P could not safely proceed with the design of the slurry wall for this entranceway until this conflict between the power line and the support system was resolved, M/P could not begin its planned work in that area of the project and delays resulted. Pl.Ex. 264.

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WMATA and M/P first discussed the conflict at the June 1986 periodic progress review meeting. Retr. 10/11/2001, at 2379. On or about July 30, 1986, M/P sent a letter advising that “the impact of this problem is a continuing [sic] delay to [M/ P’s] design schedule and field activities,” and accordingly asked that WMATA assign CPN 005. FLEx.264. WMATA provided a solution to the conflict days later. Def. Ex.1922.

On September 10,1986 M/P advised that it still had questions regarding the new designs and informed WMATA of the affected items of work:

1) Additional guidewall in the vicinity of the 138 KV lines.

2) Additional support angles and lagging under and around the 138 KV lines.

3) A new location must be found for the 8" watermain.

4) Additional support to strut the gap in the slurry wall.

5) Increased decking and deck support.

6) Additional support for the 138 KV line.

7) Additional excavation and backfill. This is in addition to the ongoing delay of [M/P’s] design and may entail additional delays with the other affected activities.

Pl.Ex. 280. On October 9, 1986, WMATA issued PCO 012, which was titled “East Entrance Slurry Wall Relocation.” Pl.Ex. 294. The actual work did not occur until March 1987. Retr. 10/11/2001, at 2379.

On March 15, 1988, M/P submitted its time analysis stating that this added work delayed the project an additional 36 calendar days. Pl.Ex. 340. About a month later, WMATA responded indicating that the time analysis lacked proper foundation. Pl.Ex. 345. On June 30, 1988, WMATA informed M/P that it had concluded its time analysis on this matter, which found that M/P was entitled only to a one day time extension to the final project completion date. Pl.Ex. 351;

see also

Retr. 10/11/2001, at 2379-80; Pl.Ex. 345; Tr. 12/19/1991, at 82. WMATA paid M/P $44,000 in direct costs. Retr. 10/11/2001, at 2380; Pl.Ex. 723.

At the retrial, M/P attempted to demonstrate that PCO 012 caused extensive delay to the schedule after January 1987. Retr. 10/15/2001, at 2603-49. However, the Court finds the testimony of John Ramos of O’Brien-Kreitzberg on this point credible. Mr. Ramos testified that PCO 012 did not cause any delay in 1987 because the work for PCO 012 after January 1987 did not affect the critical path. Indeed, Mr. Ramos testified that certain work related to PCO 012 coincided with the soldier pile work necessary for the installation of the deckbeams, and that the soldier pile work — not the PCO 012 changes — drove the start of deck beam one, which was on the critical path.

56

M/P

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argues that the utility work changes had impact beyond January 1987 and that there were additional excusable delays until October 1987 with the pouring of the first concrete invert. PI. FOF at 357. Despite the fact that some of the activities associated with the utility work changes may have continued beyond January 13, 1987, the delay to these activities does not necessarily result in a delay to the project. The Court finds that M/P’s claim that PCO 012 caused extensive delay to the schedule after January 1987 is not supported by the evidence offered. Retr. 10/11/2001, at 2379-80; Retr. 10/15/2001, at 2603-51.

6. CPN 010 (Delay in Approval Process for Manholes)

CPN 010 concerns the same electrical utility manholes as PCO 001. M/P alleges extra costs and delays due to the need to install cast-in-place manholes, rather than less expensive precast manholes, which became necessary because of alleged delays by WMATA and PEPCO in approving M/P’s drawings for the precast manholes.

M/P claims that it started work with the cast-in-place manholes on July 3, 1986. WMATA and PEPCO allegedly did not approve its precast manhole drawings until mid-September 1986, at which time M/P had already installed 19 out of 27 manholes. As such, M/P claims that, at that point, efficiency dictated that it complete the work with the more expensive cast-in-place manholes. Tr. 10/30/2001, at 135-36. M/P blames these delays on WMATA’s Section Designer for failing to coordinate its designs with PEPCO, causing extra costs and delays for the installation of the cast-in-place manholes.

The Court finds that the delay in approving the precast manholes resulted from M/P’s late submittal of manhole drawings. M/P did not submit the drawings until six weeks after notice to proceed (June 1986) and only two weeks before manhole work started in the field. Further, its manhole fabricator prepared the drawings based upon M/P’s verbal information, and because M/P never provided copies of the contract drawings to the fabricator, M/P’s initial submittals did not conform to contract requirements. Tr. 12/19/1991, at 82-84; Tr. 12/20/1991, at 154-56; Pl.Ex.278.

The Court is not persuaded by M/P’s argument that the initial submission of drawings was delayed because it was only informed of the manholes changes on May 1, 1986 — one day after the NTP. WMATA found that M/P’s initial submittal on June 27, 1986 “failed to recognize the WMATA design requirements and to compare them with those of P[EPCO], incorrectly assuming that a design approved for one contract would automatically meet the requirements of the other contract.” Pl.Ex. 316, at 3. M/P is solely responsible for this flawed submission.

Id.

WMATA initially denied the claim, subject to M/P’s response to the Contracting Officer’s analysis of the claim,

id.,

but later re-evaluated the claim to find limited merit in the modification issued in connection with PCO 001. Tr. 12/19/1991, at 84. M/P incorporated both CPNs 010, 016, and 018 with its August 11, 1989 cost proposal. Def. Ex. 967. As found above, the Court recognizes the $401,000 compensation and the 59-calendar day time extension due M/P for PCO 001, but finds that CPN 010 did not contribute to the “devastating” de

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lays claimed by M/P in the early performance of the U Street Station project.

7. CPN 025 (Garnett Patterson Junior High School)

M/P contends that there were subsidence problems at Garnett Patterson Junior High School (“GPJHS”) which required emergency measures to shore up the South East corner of the gymnasium, which ultimately affected the sequencing of soldier piling at the East End of the project. GPJHS sits at the Northwest corner of Vermont and U Streets.

On February 18,1987, GPJHS was evacuated as the M/P crews noticed cracking on the front wall of the gymnasium near the southeast corner apparently due to foundation settlement. Pl.Ex. 753, at U302264-66. Mr. Schmidt’s diary records indicate that, after meeting with Dick Carr and Deh Ho of M/P to discuss the situation, an agreement was formed “to stabilize all ground in the vicinity as quickly as possible ... and working [overtime] to complete placement of slurry panel PN-3, which may have contributed to ground movement away from [the] building foundation.”

Id.

at U302265.

Through the rest of February and much of March, M7P performed extra work to stabilize the school’s gymnasium. WMA-TA agreed that M/P was not to blame for the conditions involving GPJHS, and that the claim would be submitted to WMATA’s insurance carrier to pay the incurred costs.

Id.

at U302270. However, M/P’s Ralph Bradford testified at the first trial that payment for this claim, filed under CPN 025, remained outstanding. Further, he noted that the matter was “a straightforward insurance claim covered under the wrap-up insurance.” Tr. 12/12/91 (Bradford) 106-07.

While nothing in the record refutes the claim that M/P was not paid by WMATA’s insurance company for this straightforward claim, the Court does not agree that this situation caused the resequencing of the soldier piles in the vicinity of GPJHS. M/P has presented no contemporaneous claim or testimony to support this argument. Notably, it does not appear to the Court that there is any delay claim associated with CPN 025.

8. Claims Submission and Usefulness of Approved CPM

As required by the contract, the U Street Station project’s Part I Schedule was submitted at the start of the project and covered the first six months pending the preparation and approval of a more extensive schedule. M/P submitted its Part I schedule to WMATA in 1986. SAF No. 842. After an initial rejection, M/P revised and submitted a second proposed Part II schedule in late November 1986, which WMATA approved the next month.

Id.

However, this approved plan did not address any events which occurred between April 30 and December 18, 1985. SAF No. 843.

M/P claims that the Part II CPM for U Street as approved on December 18, 1986 was rendered almost immediately useless and obsolete due to the many early utility changes. M/P claims that this forced it to resequence the performance of the entire project. Instead of working in an orderly fashion, east to west, M/P had to proceed wherever it could.

E.g.,

Tr. 10/31/1991, at 115-117. However, given the terms of the contract, each CPM modification required the administrative review process. While many early utility changes occurred, WMATA found that the majority of these did not significantly impact the critical path and, thus, merit any time extensions.

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Given that M/P submitted the

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proposals months and years after many of the early utility changes, WMATA could not completely resolve these claims in time to have the modifications incorporated in the Part II CPM under the contract terms.

The Part II CPM served as a baseline, and some fault lies with both parties for not promptly incorporating logical changes and administering change request. WMA-TA did not always promptly administer requests, thus making it responsible for some issues with the CPM. However, the Court finds that M/P is largely responsible given its repeated slow responses to WMATA’s requests for additional substantiation of the claims.

E.g.,

Def. Ex. 817.

9. Resequencing Claims

M/P argues that it was forced to rese-quence the entire U Street Station project as a result of changes — specifically the early utility changes. According to its claim, the acceleration manifested itself in performing multiple operations at the same time rather than in sequence, postponing scheduled work, and adding a second and/or third shift to planned single shift operations. Pl.Ex. 394, at 50. These “accelerations” allegedly caused inefficiency and extra costs, which resulted in M/P’s claimed cost overruns. The record shows that there is no basis for these claims.

M/P could only identify departures from the planned sequence of work in two respects, neither of which was requested nor mandated by WMATA. The only significant departure from the planned sequence of work resulted from M/P’s decision to delay pouring the two, eastern most inverts (E-743 and E-749) at the crossover between the two station projects. M/P delayed pouring inverts E-743 and E-749 “for its own purposes”' — to coordinate with the tunneling operations at the adjacent Shaw contract by, first, providing a staging area for turn around of the TBM, and second, providing space for the TBM’s mucking operation.

See supra

note 54.

M/P also deviated from the planned sequence of construction by beginning early excavation work in the west end of the site after receiving notice to proceed on Part II of the contract in the summer of 1986.

Id.

Under the contract, this work was scheduled to start as early as November 1986. Indeed, WMATA gave notice to proceed for the work at the west end in July 1986, or four months earlier than indicated in the contract. Tr. 12/19/1991, at 86. Once receiving the NTP, M/P indicated that it could begin working on this area of the U Street Station job.

Id.

(describing Mr. Miner’s “favorable reaction” as being “quite surprised, and [saying] good, here’s another area [they could] get to work in.”). M/P used the west end initially for stockpiling materials, and demolition and relocation of utilities commenced in mid-October at the west end as a method for generating revenue.

Id.

at 86-87; Tr. 11/7/1991, at 11.

M/P witnesses admitted that the work in the U Street station area proceeded as planned from east to west. Tr. 11/6/1991, at 110; Tr. 11/5/1991, at 22-23. Peter Scott, Mergentime’s Project Engineer for much of both projects, admitted that M/P planned to start concrete pours at Unit 759 in the east service area and proceed west through the station to the west service area, and that the work in fact proceeded in that manner. Def. Ex.1976, at 786. Mr. Scott also admitted that the planned sequence of those pours from east to west posed no problems, which was the most efficient way to prosecute the concrete

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work in the U Street station.

Id.

at 786-87. The Court agrees with Mr. Schmidt’s testimony that, “[essentially, the planned sequence was followed.” Tr: 12/19/1991, at 61-64; see 1/16/1992, at 133-34.

The Court also agrees with Mr. Ramos’s assertion that resequencing at the U Street Station project had not occurred because once M/P “started the deckbeams, the sequence of construction generally went exactly as it was indicated in the baseline schedule.” Retr. 10/15/2001, at 2599. Thus, the Court finds that, by and large, no significant resequencing occurred. Indeed, while some resequences occurred in two areas, at least one instance was based on M/P’s own request to accommodate the Shaw Station project. In light of MTP’s resequencing and working in the western part of the site after receiving the Part II NTP earlier than expected and the testimony of M/P’s project manager that it was seeking areas to generate revenue, the Court finds that, to the extent any meaningful resequencing occurred, these changes were based on M/P’s preference.

10. M/P’s 1987 Performance

Although M/P presents some credible evidence that work was progressing on the project during 1987, the contract completion date continued to slip even after the impact of the early utility changes ended in January. This trend, which was noticed by WMATA as early as March 1987,

58

led to M/P’s inability to keep its scheduled contract durations. Mr. Schmidt described this problem in his testimony at the retrial: “They had equipment problems with the slurry wall. They had a lot of downtime. They had slow production and breakdown of equipment on tieback installation at the east service area.” Retr. 10/11/2001, at 2393. He also recounted M/P’s many “mistakes in the structure where [it] had to do a lot of remedial work.”

Id.

at 2393-96. The Court finds that these delays were not caused by WMATA.

Id.

The Court finds that M/P is responsible for the continued slippage in the schedule during 1987. Although M/P had fewer problems with its U Street Station job than it had at the Shaw Station project, many problems still existed in prosecuting the work on the U Street Station contract for which only M/P can be held responsible. For example, the project was fraught with dangerous safety conditions, the breakdown and unavailability of equipment (often due to its use for the , Shaw Station project or other jobs), and delays.

Id.

at 2393-99; Tr. 1/3/1992, at 47-49. The Court finds, based on a review of the record, that these problems contributed to the continued project slippage.

59

By November 1987, M/P was 212 days behind schedule on the U Street Station project, as the projected contract completion date was March 2, 1990 (compared to the scheduled completion date of August 2, 1989). Def. Ex. 1500T (PPRM Minutes No. 19). M/P had completed utility work,

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support of excavation, and station excavation through Unit E785, and had poured invert Units E759 and E759D. Def. Ex. 1593A. At most, 80 days of the delay were attributable to

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