Parsons Evergreene, LLC

ARMED SERVICES BOARD OF CONTRACT APPEALS

Appeal of -- )

)

Parsons Evergreene, LLC ) ASBCA No. 58634

)

Under Contract No. FA8903-04-D-8703 )

APPEARANCES FOR THE APPELLANT: Douglas S. Oles, Esq.

James F. Nagle, Esq.

·Adam K. Lasky, Esq.

Howard W. Roth III, Esq.

Oles Morrison Rinker & Baker LLP

Seattle, WA

APPEARANCES FOR THE GOVERNMENT: . Jeffrey P. Hildebrant, Esq.

Air Force Deputy Chief Trial Attorney

Michelle D. Coleman, Esq.

Trial Attorney

OPINION BY ADMINISTRATIVE JUDGE CLARKE

This appeal I involves the design and construction of a Temporary Lodging Facility

and Visitor Quarters at McGuire Air Force Base (MAFB), New Jersey. The project was a

"Design-Build Plus" arrangement having two phases: the concept definition phase and the

completion of design and construction phase. Appellant, Parsons Evergreene, LLC's (PE's'

or Parsons'), claims arise out of the second phase. PE claim·s $28,843,173 based on a variety

of problems it experienced. As discussed at the end of this decision, we have jurisdiction

pursuant to the Contract Disputes Act of 1978 (CDA), 41 U.S.C. §§ 7101-7109. We sustain

in part and deny in part. We sustain in the amount of$10,519,082.

FINDINGS OF FACT

Temporary Lodging Facility (TLF) & Visiting Quarters (VQ) Project at MAFB

1. The TLFNQ project is located on MAFB. The TLF facility provides a

50-unit transitional housing facility for military and civilian personnel until permanent

1

For reasons of judicial efficiency and clarity, pursuant to a separate order issued

today, we address the subject of government liability for costs associated with

allegedly tardy requests for payroll records in a separate opinion under a new

appeal numb~r, ASBCA No. 61784, though it was fully litigated under the

present appeal.

housing can be obtained. It includes one and two bedroom units with living room,

dining/kitchen, bath and storage. The VQ is a 175-unit facility similar to a hotel with

individual rooms with private baths. (R4, tab 7 at 20 2 ) The project employed a

"Design-Build-Plus 03" 3 (DBP03) process that integrated the DBP03 contractor, a .

contractor with experience in construction, with the concept definition contractor, a

contractor with experience in architectural design (id. at 19, 21 ).

Concept Definition (CD)4

2. The CD contractor for the MAFB TLFNQ project was Michael Baker &

Associates (Baker) 5 (tr. 5/8-10, 11/60; R4, tab 20C at 10). 6 The CD effort focus,ed on

"site, civil and architectural" design with "varied levels of development within

structural, mechanical, electrical and fire protection/detection" (id.). The objective of

the CD phase was to produce a 35% design that would be used to award the design ·

completion and construction contract.

3. Between 4 August 2003 and 27 February 2004, the Air Force Materiel Command

(AFMC) issued task orders TG 17 and TG31 to Contract No. F41622-02-D-0003 (contract

0003) 7 in the total amount of $255,276 for DBP03 services to Parsons Infrastructure &

Technology Group Inc., San Antonio, Texas (PI&T) (R4, tab 20 at 1, tab 20A at 1-2,

tab 20B at 1, 6, tab 20C at 1-2). PI&T was a business unit of Parsons responsible for

management and business growth in Parson's government contracting business. It exists

today under a different name not identified in the record. (Tr. 1/110-11) Under TG 17 and

TG31, PI&T was to provide architectural and engineering services to Baker to develop the

35% design package for the TLFNQ (tr. 1/121; R4, tab 20C at 8). PI&T was the "DB+

A-E" (Design Build Plus - Architectural & Engineering) contractor supporting Baker (R4,

tab 20C at 8). Specifically. PI&T was to provide "surveys, site analysis, constructability

2

All Rule 4 citations are to the PDF page numbers.

3 Design-Build-Plus 03 is referred to by various acronyms in the record: "DBP03,"

"DB," "DB+," "DB+A-E" and "DB03Plus."

4

This is sometirries referred to in the record as "Concept Design."

5

The record does not include a copy of Baker's CD phase contract with the Air Force·

(AF).

6

The documentary record in this case is voluminous consisting of an electronic Rule 4

having 3,443 tabs, many individual tabs having hundreds of pages, and numerous

hearing exhibits. The majority of the documents in the record were not cited by

the parties. The Board relies mainly on the documents identified by the parties in ·

their collective 1,500 pages of briefs. When we say a document is "not in the

record" we mean neither party cited to it or we did not independently identify it.

It is not an absolute confirmation that it is not somewhere in the voluminous

record.

7

Contract No. F41622-02-D-0003 is not in the record.

2

.reviews, design review com~ents, attendance at conferences for comment resolution, and

project cost validation" (id. at 9).

CD & Progressive Collapse

4. Mr. Basham is an architect who was accepted by the Board as an expert in

design-build contracting for appellant (tr. 1/228, 239). He testified that progressive

collapse is a phenomena that occurs when certain members of a building are damaged and

weight is transferred to other members that cannot handle the weight and the building starts

to collapse (tr. 2/7). A building designed to resist progressive collapse must have a

back-up/redundant structural system so that failure is avoided (tr. 2/7, 11/51-52):

5. Mr. Cochran is an architect who was the AF's project manager and design agent

on the TLFNQ contract from June 2003 to November 2004 (tr. 11/6-7). Mr. Cochran

explained that the purpose of a "charrette report" is "to prese_nt the functional and

engineering criteria, design information, procedure and basis of design to document project

requirements" (R4, tab 1474 at 5). The charrette report for the VQ was developed by

Baker (tr. 11/55). The charrette report summary.of the VQ structural design does not

specifically mention progressive collapse but does state at the end of section 3 .3 .4, ''Force

Protection: The structural needs of the VQ are not affected by force protection if the

25-rrieter standoff zone is maintained" (R4, tab 1474 at 27).

6. A 9 September 2003 review of the VQ Charrette report by Ms. Hopkins, PI&T,

included the following comment, "Ch 3, 3.3.4, pg 34[.] We suggest an alternate masonry

wall design using structural brick (e.g., Interstate Atlas Brick). The advantage is a single

brick wall system vs. two wall system (8" CMU and 4" brick veneer)" (R4, tab 467 at 2,

cmt. 20, tab 1761 at 7). Baker responded to this suggestion with, "Baker has investigated

the structural brick systems and do not believe that it is appropriate for this project" (R4,

1761 at 7). Baker went on to explain why it rejected structural brick (id.). Mr. Ward, an

architect with Baker, with assistance from Baker's engineers, wrote Baker's response

(tr. 14/149). Mr. Ward recalled that the use of structural brick was suggested by PI&T and

considered by Baker during-the 35% design phase b~t for a variety of reasons was not used

(tr. 14/143, 149-53). Mr. Cochran recalled "some discussion on structural brick" during

the 35% design phase but he did not recall receiving information on constructability, cost

analysis, product specifications, etc. of the structural brick ·design (tr. 11/64).

7. Ms. Willingham, Non-Appropriated Fund (NAF) program manager, reviewed

· the VQ Charrette report. Her 10 September 2003 comments, number nine, states:

"3.3.4. The position taken by the designer that the 'structural needs of the VQ are not

affected by force protection if the 25-meter standoff zone is maintained' is an incorrect

assumption. The structure does have to be designed to resist progressive collapse {Ref.

UFC4-010-0l, Standard 7) please re-evaluate." (R4, tab 468) 8

8

. On this document the "ACTION" column is blank.

3

8. Mr. Cochran also reviewed the VQ Charrette report. An entry on the

Charrette Report review, dated 12 September 2003, reads:

[Comment] Chapter 3, Section 3.3.4, page 34, Structural[.]

This paragraph notes force protection is not a consideration

. for structural needs. The charrette report should identity the

threat level, and the structural system designed accordingly.

Verify if the structural system.should be designed to prevent

progressive collapse.

[Action] Concur. In accordance with UFC 4-010-01, the

structure wiH be designed to resist progressive collapse.

(R4, tab 2 at 753, cmt. 10) Mr. Cochran testified that the 35% design team agreed that

the VQ would be designed to resist progressive collapse (tr. 11/58-59). Mr. Cochran

testified that PI&T was responsible for validating that the 35% design included

resistance to progressive collapse (tr..11/59).

, 9. Mr. Williams is an architect and was project manager with AF Services

during the VQ/TLF 35% CD phase through completion of the buildings (tr. 14/204, -

211 ). Mr. Williams testified that resistance to progressive collapse was a requirement

for the Cr;> phase of the VQ (tr. 14/206). During a meeting in December 2003 with

Baker, Mr. Williams told the design team that resistance to progressive collapse was a

requirement for the three story VQ (tr. 15/6-7).

10. Mr; Bennett has practiced architecture since 1989 and is the owner ofKCB .

Architecture (tr. 5/6). During the CD phase Mr. Bennett worked for PI&T. He and two

other PI&T employees (Mr. Martin and Mr. Binks) worked with Baker during

development of the 35% design under a contract with the AF (tr. 5/8~9). Their job was

to look at the preliminary design of the project and constructability (tr. 5/9). However,

Mr. Bennett was not architect of record for the 35% CD (tr. 5/10). Mr. Bennett testified

that he did not recall a detailed discussion of progressive collapse during development

of the 35% design. The progressive collapse requirement was in the statement of work

(SOW) for the Baker 35% design, but he recalled it only played inJhe location and

orientation of the building not in the structural design of the VQ. (Tr. 5/94-95) After it

was awarded the contract, PE hired Mr. Bennett for its contract to complete the design

and construct the TLF and VQ (tr. 1/121). He was the architect of record for the

construction project (tr. 5/6-7). Mr. Lengyel, a licensed architect, worked for

Mr. Bennett and did the day-to-day design work (tr. 5/7). Mr. Aldave, a structural

engineer, also worked on his design team (tr. 4/174-75, 5/7-8).

4

CD & Utilities

11. Mr. Ward is an architect who worked for Baker and participated in the 35%

design of the VQ/TLF (tr. 14/115). He participated in the design charrette (tr. 14/115-16).

Mr ..Ward recalled that after Baker issued the 35% design they gave the "topographic and

utility survey that was done for the TLF and VQ site, in electronic format" to PE

(tr. 14/120). He recalled providing three files, the base map, computer-aided tracking, and

existing utilities (tr. 14/121-22; R4, tab 1762). The utilities Computer-Aided Design

(CAD) file was created based on "GTAB" 9 files provided by the AF (tr. 14/167-68).

Baker did not subcontract for a full utility survey during the 35% design. Baker relied on

GTAB utility information from the AF. (Tr. 188-89)

CD 35% Drawings

12. Mr. Williams produced the 35% design drawings for the TLF and VQ

(tr. 14/133; R4, tabs 1745, 1746). The "Corrected Final Concept Design" drawings for the .

VQ are dated 18 May 2004 (R4, tab 1746). Each of the drawings for both buildings

include the following note. 10

ALL THE INFORMATION INCLUDED IN THE

REQUEST FOR PROPOSAL (RFP) CONSTRUCTION

DOCUMENTS REPRESENTS A 35% LEVEL OF

DESIGN AND IS NOT INTENDED TO REPRESENT A

COMPLETE SET OF CONSTRUCTION DOCUMENTS.

THIS.INFORMATION INCLUDES BUT IS NOT

LIMITED TO ALL GRAPHIC INFORMATION AND

VERBIAGE (TEXT) INCLUDED IN THE DRAWINGS.

SPECIFICATIONS, DESIGN ANALYSIS AS WELL AS

CID AND SID INTERIOR PACKAGE. THIS

INFORMATION ALSO INCLUDES QUANTITIES AND

CAPACITIES INCLUDING, BUT NOT LIMITED TO

ALL UTILITY REQUIREMENTS NEEDED TO

PROVIDE A FULLY OPERATIONAL FACILITY IN

ACCORDANCE WITH ALL APPLICABLE CODES AND

DESIGN GUIDELINES OUTLINED IN THE DESIGN

ANALYSIS. THE DESIGN-BUILD PLUS (DB+)

CONTRACTOR MUST COMPLETE THE DESIGN AND

CONSTRUCTION OF THE McGUIRE VISITING

QUARTERS TO A FULL.Y OPERATIONAL LEVEL OF

. COMPLETION IN ACCORDANCE WITH THE INTENT

9

In the record these are variously referred to as GTAB, G-TAB and G-Tab.

10

The only difference in this note is that the TLF drawings refer to the TLF and the VQ

drawings refer to the VQ.

5

OF ALL DESIGN(S) REPRESENTED IN THE (RFP)

CONSTRUCTION DOCUMENTS. THE DB+

CONTRACTOR MUST MEET ALL DESIGN

REQUIREMENTS, CODES AND STAND ARDS SET

FORTH IN THE RFP AND MUST FOLLOW THE FULL

DESIGN INTENT REPRESENTED IN THE RFP

CONSTRUCTION DOCUMENTS. IN THE EVENT ANY .

OF THE REQUEST FOR PROPOSAL INFORMATION

REPRESENTED IN THE DRAWINGS;

SPECIFICATIONS, DESIGN ANALYSIS OR CID AND

SID INTERIOR DESIGN PACKAGE MAY BE IN

CONFLICT, THE DB+ CONTRACTOR WILL BE

REQUIRED TO PROVIDE THE MOST STRINGENT

REQUIREMENT(S). THIS PROVISION WILL NOT

WARRANT ANY INCREASE IN THE CONSTRUCTION

COST LIMIT (CCL) OF THE DESIGN BUILD PLUS

CONTRACT AMOUNT.

(R4, tabs 1745-46) Drawing notes for both buildings referred to MAFB architectural

standards (R4, tab 1745 at L-101, tab 1746 at L-101, 502). RFP 8234 specified that the

"face brick" for the two buildings would be:

Brick: Face brick

1. Red Brick: Richtex Corporation, Type D-80, Shade-223

. flashed range wirecut. Size 2-1/4 in. x 3-5/8 in. x 7-5/8

in. ASTM C 216, Grade SW, Type FBS. Or BCE

approved equal.

(R4, tab 2 at 465, 1047)

13. VQ 35% drawings C-102, Site Demolition Plan, C-103, Utilities Demolition

Plan, C-104, Site Geometry and Paving Plan, C-105, Site Utility Plan, and C-106, Storm

Drainage and Grading Plan" each have a version 11 of the following note:.

1. THE LOCATION OF ALL EXISTING UTILITIES

. SHOWN ARE APPROXIMATE BASED ON G-TAB

. MAPPING FROM MCGUIRE AFB CIVIL

· ENGINEERING SQ. THE HORIZONTAL AND

VERTICAL LOCATIONS OF ALL EXISTING

UTILITIES SHALL BE VERIFIED BY THE

CONTRACTOR PRIOR TO CONSTRUCTION,

PARTICULARLY AT NEW PIPE CROSSINGS.

11

Drawings C-102, C-103 and C-104 have slightly different shorter versions of this note.

6

(R4, tab 1746 at 4-8) Mr. Temchin, vice president of program management with Parsons

(tr. 2/96), testified that Parsons went to the base "field shop" where the drawings were

maintained and asked for the drawings showing what was in the ground. The base

maintained two sets of "G-Tab" drawings, one for active utilities and one for abandoned

utilities. The abandoned utilities G-:-Tab drawings were never given· to PE. (Tr. 5/242-43)

14. VQ 35% drawing C-106, Storm Drainage and Grading Plan, includes a

stormwater detention basin, sometimes referred to as a "pond," and includes the following

note:

3. THE SIZE OF THE STORMWATERDETENTION

BASIN WAS APPROXIMATED BASED ON

CONTROLLING THE PEAK OF THE 1.5 YEAR STORM

EVENT. DURING FINAL DESIGN, A DETAILED .

HYDRAULIC ANALYSIS SHALL BE CONDUCTED AT

THE EXISTING CULVERTS DOWNSTREAM OF THE

BASIN OUTFALL (ACROSS MITCHELL ROAD) TO

DETERMINE IF A LESS-FREQUENT, HIGHER-

MAGNITUDE DESIGN STORM WOULD BE

APPROPRIATE. DURING FINAL DESIGN, THE

CONTRACTOR MAY CONSIDER OTHER OPTIONS TO

ADDRESS THE INCREASED PEAK FLOWS

INCLUDING UNDERGROUND DETENTION,

OVERSIZED STORM DRAIN PIPES, AND/OR

UPGRADING THE MITCHELL ROAD CULVERTS, OR

DO NOTHING AND ACCEPT THE CONSEQUENCES

OF HIGHER FLOWS. FINAL DETERMINATION

REGARDING SWM SHALL BE MADE DURING FINAL

DESIGN. IF SWM IS DISCARDED, THE STORM

DRAIN SYSTEM COULD BE RE-CONFIGURED TO

MORE DIRECTLY DISCHARGE lNTO THE CHANNEL

ALONG MITCHELL ROAD.

(R4, tab 1746 at 8, drawing C-106) The VQ 35% design, drawing C-106, Storm Drainage

and Grading Plan, shows a "Stormwater Basin" with "BOTTOM ELEVATION= 106.00"

(id.). Mr. Morrison, AF Center for Engineering and the Environment (AFCEE) 12 (R4, tab

213 at 337), program manager, testified that the EPA required that stormwater be retained

on the site but that a basin was "problematic in or near an airport or an Air Force base

because birds collect there and they're problematic for aircraft" (tr. 11/220). He explained

that the basin on drawing C-106 was 'just a place holder on the low spot on the site" and the

12

AFCEE provided technical support to the contracting officer (R4, tab 213 at 337).

7

contractor would have to do a percolation test to see how much water the basin would .

absorb in a 12 to 24 hour period to design the basin (tr. 11 /221).

IDIQ Contract

15. On 12 December 2003 AFMC awarded Parsons Infrastructure and Technology

(PI&T), indefinite-delivery, in.definite-quantity (IDIQ) Contract No. FA8903-04-D-8703

(contract 8703) in the total program amount of amount of$2.1 billion (R4, tab 1 at 1-5).

The contract provided that planning and programming (CLIN 1), constructability and

parametric estimates (CLIN 2), and construction (CLIN 3) services would be detailed

under "subsequent task order Statements of Work (SOW)" (id. at 2-5). Contract 8703

incorporated FAR 52.233-1, DISPUTES (JUL2002)-ALTERNATE I (DEC 1991); and

FAR 52.23.6-2, DIFFERfNG SITE CONDITIONS (APR 1984) (R4, tab 1 at 24).

Demolition Work

16. The VQ was to be constructed in a location where swimming pools existed

that required demolition (R4, tab 1746 at 4, drawing C-102). By email dated 29 April

2004 to Ms. Willingham, Mr.- Cochran, AFCEE, expressed concern that the demolition

of the pools had to be properly monitored to ensure that select fill was placed in the pool

excavation to avoid "unforeseen site conditions" (tr. 11/92-94; R4, tab 4248 at 2). By

email dated 14 May 2004 to Mr. Martin, PE's 13 project manager, !Lt McAlpine, project

manager, Civil Engineer Squadron; MAFB, informed him that another contractor would

perform the demolition of the Officer's Club pools and that contractor "would need to

ensure the backfill was placed in compacted lifts to ensure it would be suitable for the

future building" (R4, tab 3831 at 3). Mr. Martin responded 14 on 16 May 2004 stating

that the calculations for structural fill could not be completed until PE received the final

DB+ contract and if the fill placed by the demolition contractor did not meet the fill

requirements, it would have to be removed and replaced by PE at AF expense (id. at 3).

Mr. Cochran responded to Mr. Martin on 17 May 2004 stating that the backfill

requirements for the demolition contract were standard specifications on MAFB -and

should be acceptable for construction and that no additional costs would be expected

(id. at 2). Mr. Martin responded on 17 May 2004 stating that had PE been selected to

do the demolition the adequacy of the fill would ,not be an issue (id. at 1).

Novationfrom PI&T to PE

17. PI&T was involved in Parsons' purchase of "Evergreene" a construction

company, renamed Parsons Evergreene (PE) (tr. 1/110-11). Modification No. POOOOI to

contract 8703, dated 7 September 2004, changed the contractor from PI&T to PE based on

a novation (R4, tab IA).

13 PI&T had not yet novated the contract to PE.

14

Mr. Martin's email address was Tony.Martin@parsonsevergreene.com (R4, tab 3831 at 2).

8

Request for Proposals (R.FP) for 100% Design and Construction Task Order

18. Request for Proposal (RFP) No. FA8903-05-R-8234 (RFP 8234), dated

10 February 2005, solicited proposals for the task order (T0) 15 under contract 8703 to

complete the 100% design (from the 35% design) and construction of the TLF and VQ

(R4, tab 2 at 1). 16 The Baker 35% design analysis is the basis for the RFP (tr. 5/62; R4,

. tab 2 at 692). RFP 8234 included the Independent Government Estimate (IGE) for the VQ

of $17,977,243 and TLF of$15,373,500 for a total of $33,350,743 (R4, tab 2 at 2) ..

Award was to be "to the contractor offering the lowest price" (id.). RFP 8234 included

the SOW for the TLF, PTFL 04-5000, and the VQ, PTFL 02-3004 (ic/. at 1). Bidders were

informed "Only upon receipt of the executed TO will you commence work" (id. at 2).

The notice to proceed (NTP) was to be issued not later than 30 days after award and,

"Construction services shall not commence until the bortds have been submitted and

approved and a NTP has been issued by the Contracting Officer" (id.).

19. RFP 8234 includes a SOW, dated 20 January 2005, for the TLF and VQ that

includes the following note to paragraph 3 .0 Scope:

Note: Site demolition is not required. The demolition has

been accomplished locally by others. The site is clean and

ready for construction. Mock-up rooms for the VQ are not

required in this project. All references to mockup rooms are

not applicable.

(R4, tab 2 at 5)

20. RFP 8234 includes the following concerning the construction site:

1.7 DATABASE: These specificat.ions and accompanying

drawings were prepared using data derived from the

original construction drawings and from site visits. The

construction shown shall not be construed as exact or

complete nor are minor variations covered. It is

recognized that site conditions referred to vary and that

those building and site conditions ordinarily

encountered and generally recognized as inherent in

work of this character may include variations. The

15

Task order and delivery order are used interchangeably in the documents.

16

The PDF page numbers in Rule 4, tab 2, do not match the numbers marked on the

pages. There are 1,874 PDF pages in tab 2. The.last page number marked on the

page is 2,434. The AF brief refers to numbers marked on the pages but we use

the PDF page numbers.

9

contractor shall he responsible for determining the exact

conditions at the site and building and shall accept

them, as they exist at the time of contract award,

regardless of whether or not the contractor visited the

site prior to award: The contractor shall verify. all

measurements of existing conditions before ordering

sized materials. If materials are ordered on the basis of

what is shown on the construction drawings without

verification of existing conditions, the contractor does

so at his/her own risk and expense. All existing field

conditions shall be accounted for in all required shop

drawings. Actual dimensions and elevations take

precedence over any shown in the contract drawings.

(R4, tab 2 at 287) 17

21. RFP 8234 require~ submission of a Critical Path Schedule and included an

estimated "Design/Construction Schedule" starting with contract award on 15 February

2005 (R4, tab 2 at 294). It also included procedures for submittals:

. SECTION 01330-SUBMITTAL PROCEDURES

1.6 PROCEDURES FOR SUB MITTALS

C. Scheduling .

. 2. Except as specified otherwise, allow review period,

beginning with receipt by approving authority, that

includes at least 15 working days for submittals for

QC [Quality Control] Manager approval and 20

working days for submittals for contracting officer

approval. Period of review for submittals with

contracting officer approval begins when the

Contracting Officer receives submittal from QC

organiz~tion .. Period of review for each resubmittal is

the same as for initial submittal.

17

This paragraph is found on a page identified with the TLF, however, we interpret it to

·apply equally to the VQ because pages for the VQ and TLF are comingled in

RFP 8234 (R4, tab 2 at 350-51).

10

(R4, tab 2 at 330, 337) The "QC Organization Responsibilities" section requires that

the date of receipt from the contractor be noted on each submittal. The QC organization

then reviews the submittal (id. at 339). When the QC manager is the approving

authority, the manager will take the appropriate action in accordance with specification

01330 paragraph J. 6. b~ (id. at 340). When the contracting officer (CO) is the

approving authority, the QC organization will certify that the submittal is acceptable

and forward it to the CO (id. at 339). RFP 8234 included a list of key personnel

identified as located in Texas, Illinois, and New Jersey (id. at 1757-58).

22. RFP 8234 included the following concerning the High Temperature Hot

Water (HTHW) system:

The proposed high temperature hot water (HTHW)

service line will connect to a new HTHW main line, which

will connect at the.existing main along East Arnold Avenue

Gust west of the VQ) and extend eastward to Mitchell Road.

The new main will service both the new VQ and planned

TLF facility on the other side of Mitchell Road. The

capacity of the existing system at this point of connection

shall be verified during final design.

(R4, tab 2 at 701)

23. RFP 8234, Attachment No. 2 included a clause setting liquidated damages at

$5,043 a day that PE was late in completing the project (R4, tab 2 at 1807). It also

included a clause concerning "record drawings":

_Record drawings showing existing underground utilities will

be provided or made available to the Contractor. Record

Drawings shall be made available by the base C.E. at

McGuire AFB, NJ. Any utility-line shown on the record

drawings (or made knownto the contractor) and damaged

during construction work, will be repaired immediately by

the contractor at no cost to the Government

(Id. at 1808)

24. RFP 8234, Attachment #4 was Davis-Bacon Wage Determination

No. 120030002 dated 21 January 2005 (R4, tab 2 at 1811-34).

11

RFP 8234 - Standing Seam Metal Roof

25. RFP 8234 required a standing seam metal roof (SSl\!IR) for the TLF and VQ

(R4, tab 2 at 506, 1089). Specification Section 07411 Metal Roof Panels (SSSMR), 17

paragraph 1.6, "PRODUCTS," A.5. required, "Panels shall be manufactured of adequate ·

metal gauge an_d rigidity to eliminate any 'oil canning' effect" (R4, tab 2 at 507, 1090).

Oil canning is a waviness in the metal roofs (R4, tab 116 at 14).

26. When PE contacted subcontractors to bid on the SSMR, they all took exception

to the requirement to "eliminate" oil canning stating that it could not be eliminated (tr.

3/87-88). Mr. Temchin, PE's vice president, testified that the first RFP language made "no .

sense" because it was impossible to "eliminate oil canning" (tr. 6/l 74r On 24 March 2005

Amendment No. 1 to RFP 8234. was issued (R4, tab 2A at 1). The language concerning the

SSMR was changed:

5. COMPONENTS: SSSl\!IR.panels shall be 13 inches to 19

inches in width and standing seams shall be a minimum

of 2-1/2 inches in height. Though "oil canning" is

inherent in sheet metal formed panels. [sic] The panels

shall be manufactured of adequate metal gauge and

rigidity to eliminate or seriously minimize any "oil ..

canning" effect. The Government will not release any

Contractor/ Manufacturer liability for rejecting SSSMR

panels on the basis of the ''oil canning" effect on the final

installed system. All fasteners shall be concealed and

_applied sealants shall be the same color of the SSSMR

system.

(R4, tab 2A at 20) Liquidated damages were reduced from $5,043 to $1,347 per day. The

estimated construction costs were revised to VQ - $18,053,320 and TLF - $15,525,546.

(Id. at 1-2)

RFP 8234 -Amendment No. 2

27. On 5 April 2005 Amendment No. 2 to RFP 8234 was issued (R4, tab 2B at 1). -

The amendment replaced the SOW with a revised version dated 31 March 2005 18 that

included the following:

17

"SSSMR" stand for Structural Standing-Seam Metal Roof Panels (R4, tab 2 at 507).

We use Standing Seam Metal Roof (SSMR).

18

All future reference to the SOW refer to the 31 March 2005 version.

12

\

2.0 Purpose:

[delete]

Construct a 175 room multi story Visitors Quarters (VQ), a

50 unit Temporary Lodging Facility (TLF), and all support

facilities as identified and Needs Assessment Study. The

rn10 projects 1,.vill be interconnected and constructed on

adjacent sites.l 19 1

[substitute]

The contractor will utilize the t~ttached concept design to

· generate the construction drawings and build a 175 room

multi-storv Visitors Quarters (VO), a 50 unit Temporarv

Lodging Facility (TLF) 011 adiacent sites.

3.0 Scope:

Note: Site demolition is not required. The demolition of

the houses and swimming pools has been accomplished

locally by others; remaining site 1rork and utiliD-' work pe1~

the drawings is required. Electrical lines must be relocated

and transformers removed and turned in to the base. +he

site is elean and ready for constn1etion. Mockup rooms

for the VQ are not required in this project. All references to

mockup rooms are not applicable.

(R4, tab 2B at 6) 20 The SOW listed the attachments as, "Concept Design Documents

(2 CDs): TLF, VQ dated 5/18/2004, Rickenbacker October 2004" (id. at 11). The 35%

drawings are dated 18 May 2004 (R4, tabs 1745-46). Mr. Morrison was the AF

construction manager and contracting officer's representative (COR) for the TLF/VQ

project from January 2004 to September 2005 (tr. 11/153, 227). He drafted Amendment

No. 2 (tr. 11/165). He explained the change to the note was a response to questions from

bidders and the fact that "we realized that it might [be] clearer to say that the demo had

19

This lined through language was riot shown in the amendment, it was simply deleted.

We show it lined out here to enable comparison.

20

The words in bold/strikethrough· were deleted (tr. 1/179-80). The words in italics and

underlined were added.

13

been accomplished but there still remains some utilities and electrical transformers, et

cetera, in that area. Again, the - the fill dirt was supposed to be clean, but we realized

there was some subsurface utilities that need to be dealtwith." (Tr. 11/165)

28. SOW paragraph 3.2.2.2, Working Drawings, Construction, Delivery and

Warranty, reads: ' ·

At the conclusion of the CD phase, the Government will

issue a separate task order with a RFP or RFQ and thus,

transition from the Concept Definition Phase to the

Construction Phase. During the Construction Phase, design

completion, construction, and the delivery and warranting of

the projec_t/facility takes place. It is the intent of the.

Government to require the DBP03 contractor to use the

results of studies and investigations conducted during the

CD Phase by the same or a different DBP03 contractor. If

the same DBP03 contractor performs these studies and

investigations during the CD Phase and is awarded the

Construction Phase task order for essentially the same

project, then the DBP03 contractor is responsible for the

results of its efforts during the CD Phase. See paragraph 7

for possible Construction Phase tasks at the task order level.

(R4, tab 2B at 7) (Emphasis added)

Pre-Bid Questions and Answers

29. The record contains three sets of pre-bid questions and answers (R4, tabs 4, 21

52, 25 22 ). We consider them in chronological order.· A pre-proposal conference was held

on 2 March 2005. Attendees submitted questions in the form of Requests for Information

(RFis ). Answers to the RFis were provided in a 22 March 2005 memorandum by

CO Macdecy 23 (R4, tab 52). Three of the RFI's and answers are:

6. RFI: It appears the VQ structure was designed without

a provision for progressive collapse. Is this

.feature not required for this facility?

21

This document is also at Rule 4, tabs 24, 513.

22

These same questions and answers were emailed to bidders on 20 April 2005 (R4, tab 518).

23

Between 2004 and late 2005, Mr. Macdecy was the CO on the MAFB TLFNQ contract

(tr. 10/161-62).

14

Answer: Yes, progressive collapse features are required for

VQ ! The architect of record resulting from the

award of a task order under the DBP03 concept

will be expected to include this feature in the final

stamped drawings.

8. RFI: Has any environmental testing been accomplished

post demolition and has an environmental

baseline of the site been established? If so, is it

available?

Answer: No to all three questions. The site is clean and

ready for construction. The SOW utilized by the

base in the demolition contract did not require

compaction of fill dirt.

l3. RFI: Will copies of fill reports and geotech reports on

the demo'd pools be provided?

Answer: No. A Geotech report for the swimming pools

does not exist. It should be assumed that soil

content is at least equivalent to the worst

condition level permitted in the Base Demo

contract requirements.

{R4, tab 52 at 2,. 3) Mr. Morrison, the AFCEE Program Manager, testified that the base

assured him that the backfill_would be clean but not compacted (tr. 11/161, 163-64).

30. On 7 April 2005 PE received AF answers to various additional questions

(R4, tab 25 at 1). In an email dated 20 April 2005 to PE, with a copy sent to

CO Macdecy, Mr. Hillestad who worked as a contracted contract specialist for the

government during the RFP phase (tr. 10/ 114 ), sent out the same set of questions and

answers (R{ tab 518). Concerning the VQ, question and answer number 3 is as

follows: .

3. Concerns continue to exist regarding the adequacy of the

structure as shown in the_ 35% documents to satisfy the

progressive collapse requirements. Confirm the

structural adequacy of the pre-cast has been confirmed in

the 35% submittal calculations. All roof loads and the

15

line load of the third floor-are transferred to the third

floor hollow core planks (See Section 2 / A-302). Are

we allowed to substitute assemblies and structural

systems in order to be compliant with the progressive

collapse requirement provided the performance

requirements and appearance of the building are

satisfied. Yes, the drawings are concept only. You

have the responsibility to generate. the construction

details and drawings. Tim Morrison, AFCEE/HDM

Note[ 24J: A design to provide a facility compliant with

the Progressive Collapse criteria would require

substantial work at a considerable additional

compensation.

(R4, tab 25 at 3) A copy was sent to CO Macdecy (R4, tab 518 at 1). Drawing A-302 is

an architectural drawing that shows the Baker double wall design (R4, tab 1746 at A-302).

This question specifically points to Wall Section 2 on drawing A-302 where the thirq floor

roof load is transferred to the third floor hollow core plank. instead of the second floor

reinforce9 concrete masonry wall. We find that this is at least one place in the design .

where the progressive collapse problem is found. Neither party presented testimony on the

meaning of the note warning of substantial work at considerable expense to provide a VQ

that meets progressive collapse. Mr. Bennett testified that this question and answer

demonstrated that the 3 5% design "was a concept that therefore needed to be fully fleshed

out and developed with the responsibility of the Design-Build tearri to do that very thing to

bring the design to the completion" (tr. 5/23).

31. There were a total of 32 questions and answers in the memo and the statement (or

words to that effect) "The drawings are concept only. You have the responsibility to generate ·

the construction details and drawings. Tim Morrison, AFCEE/HDM" was used 7 times

therein in the responses to questions (TLF) Nos. 2, 3 (VQ) Nos. 1, 3, 12 (TLFNQ) Nos. 6, 7.

(R4, tab 25 at 2-6)

· 32. A 5 April 2005 memo by CO Macdecy containing a set of consolidated

questions and answers was sent to the bidders on 7 April 2005 (answer in. bold italics):

7. Page 6- The second paragraph references Buildings 33

and 3 5. These buildings do not appear anywhere near

the Sanitary POC on C-104. The scope of the

recommended "downstream survey" is hard to finitely

24

This note was part of the original question (R4, tab 4363 at 4).

16

estimate until a copy of the Base "G-Tabs"r 25 1 is

received.

Refer to attached "G-Tab" files that were provided to

the Title I AIE. DB+ contractor needs to verify that

these are the most up to date G-Tabs available.

15. Page 82- Item #8- Has the "Note 2" on C-104 been

modified to indicate the capacity of all utilities are

adequate as per response provided?

A site utility survey was not performed by Baker. .All

capacities were derived from G~Tab.information or

were provided by Base CE.

21. It is assumed that the location and elevation of all utility

"capped" locations "By Others" will be documented,

physically marked, and provided to successful offeror.

No information is available. Lines are capped at the

main and abandoned in place. Only the electrical

service must be relocated as part of this project per the

drawings.

42. Page 6- Para 2.5- Should the service line from the new

HTHW main be tied into the main with a manhole and

valves? (See also question 13 above)

This is to be determined duringfinal design. The DB+

. contractor shall be required to address this.

25

"G-Tab" drawings are a base map that purports to show all of the utilities and their

location and identification (tr. 11/166). It was provided to all bidders (id.).

Mr .. Morrison testified that the G-Tabs would show all of the locations accurately

(tr.11/169). ·

17

A minimum of two (2) new HTHW manholesl26 l shall

be required, one at the tee for the VQ and a second on

the TLF site POC. Note to all contractors there are a

lot of existing utilities along East Arnold gas, phone,

water, etc. (both sides). Extreme care will be required

when approaching and crossing east Arnold with the

HTHW/ines.

,.43. Page 6- Para 2.5- What is the capacity of the· existing

HTHW system at the proposed tie-in point?

Refer to the drawings (H-201). This will have to ~e

verified by the DB+ contractor.

46. Page 28-Para 5.7.1- Last bullet- Ceilings in corridors

are indicated as GWB and at 9' -0". These will need to

be lowered to 8'-0" and 'revised to acoustical ceil_ing to

facilitate necessary water, electrical and communication

rough in fat each floor.

The space above the corridors was designed around a

9'-0" corridor ceiling height. This is only a 35% level

of design, so not every access panel is shown. There

are alternative design solutions that the DB+

contractor may have to implement in order to achieve

the design intent of the RFP drawings. The end user.

and the VQ design guides both specified the need for

gyp. board in the corridors and to have a 9'-0" ceiling

height. If the contractor feels they need to deviate

· from this requirement, then the base will have to

authorize this change.

48. Page 32 - Civil -Are the results of the "key manhole

study" available yet?

26

Neither party submitted evidence of the location of the two new manholes; however,

one is "on the TLF site" and we found the other on VQ 100% drawing C-107

where the new HTHW line divides into two lines for the VQ and TLF, i.e., the

''tey" (R4, tab 1755 at sheet 9, drawing C-107). ·

18

A key manhole study was never performed. The

design was based on information taken from the base

map/G..,tab data.

51. Page 82'." Item 1- Is the scope of all required utility,

demolition indicated on C-103 or will the Gov't use the

"catch all" notes to require additional demolition

without additional reimbursement?

It remains the responsibility of the DB03Plus

Contractor to determine requirements utilizing

existing documentation and drawings to complete the

final designs and project requirements. Should

changes occur involving additional and/or

. unanticipated work post mobilization, the Contractor

has recourse under various provisions of the contract.

61. Dwg. C-102 & C-103 - Site visit revealed that some of

the demolition indicated on this drawing has been

accomplished. It is assumed that all demolition below

grade has been completed in accordance with contract

requirements and that all backfill is compacted in .

accordance with contract requirements. What items

indicated on this drawing have not been accomplished

and remain part,ofthis contract? Are demolished

utilities physically marked at capped locations?

See the attached base demolition SOW to amendment

#1. The backfill is clean but not compacted. Use the

worst soil boring sample for calculations. Utilities

are capped at the mains and lines abandoned in

place. Electrical system must be re-routed and

· transformers removed and turned in to the base.

68. Dwg. C-105 -Are there any HTHW manholes

required?

The DB+ Contractor will need to make this

determination. However, a (minimum) of two (2) new

HTHW manholes shat/be required, one at the tee for

19

the VQ and a second on the TLF site POC. Note to

all contractors there are a lot of existing utilities

along East Arnold gas, phone, water, etc. (both sides) .

.Extreme care will be required when approaching and

crossing east Arnold with the HTHW lines.

70. Dwg. C-106 -Location of proposed HTHW line is

drawn through proposed storm drain lines, headwalls,

and catch basins. It is assumed that the location of the

new HTHW can be relocated south to avoid these

structures.

DB contractor shall be required to provide new

routing for all new utilities to avoid existing/new

structures, utilities, trees, etc.

(R4, tab 4 at 3-5, 7-10) Mr. Morrison testified about the answer to question 68:

In our preliminary design, we determined that it looks like

it's going to take tw<r--two new manholes and the lines

would have to connect over East Arnold and there is a-

there are a lot of utilities located there on both sides of the

street, causing impact to that design, and allowing the

contractor to decide whether to go above or below those

existing utilities.

(Tr. 11/174-75)

33. Mr. Morrison testified about the answer to RPI No. 46:

We've spent years coming up with these design

guides through committees and policy groups where we

decide how big the rooms are to be, what the ceiling height

should be and the quality-the standard of living we want to

provide our troops and their families and the nine foot

ceiling height is what we've decided is appropriate.

And we expect the contractor to accommodate the

nine foot ceiling height and his utilities will have to go·

above that.

20

(Tr. 11/171-72) Mr. Morrison testified that the AF's "requirements are much more

restrictive and stringent .and makes some of our customers hard to work with. We have

.

a lot of details and we know what we're looking for and what we're willing to pay for.

So we don't-we don't leave a lot of flexibility." (Tr. 11/173)

34. Mr. Temchin has a civil geotechnical professional license in New Jersey

(tr. 2/97). He spent half of his time on the MAFB project after April 2006 (tr. 2/99, 104,

116). Mr. Temchin interpreted the response to RFI No. 61 to "put the representation of the

clean site" back into the contract (tr. 7/144). He agreed that the AF indicated that the

backfill was not compacted (tr. 7/145). He testified that PE relied on this response to believe

that the backfill was clean (tr. 2/261). Mr. Radin, PE's senior vice president of contract &

procurement, testified that PE expected that the construction site would be ready for

construction (tr. 1/103, 129,225).

35. By internal AF email to Mr. Williams, copy. furnished to CO Macdecy, dated

14 April 2005, Mr. Hillestad furnished all of the questions from bidders answered in the

memo provided to PE on 7 April 2005 (R4, tab 25). The copy attached to the email did not

include the answers provided on 7 April 2005 (R4, tab 4363 at 3-7). In his email,

Mr. Hillestad stated:

The attached has all the markings of a show stopper! My

PM is TDY through Friday so I am unable to get a

professional opinion on the merits of the issues MWH is

raising.

From our standpoint, there is a question as to what latitude,

if any, we are willing to allow the contractor in departing

from specific criteria provided in the concept design? For

example where an STC rating is specified or a wall type

maqdated in the concept, can the contractor/designer depart

from that callout or wall type and go another direction? If

we allow that, where do we put on _the brakes in the extent

of departure from the concept designs? On the other hand,

if he can deviate and still meet code and our outcome

expectations, should we back off and let him run? We need

technical input in evaluating the issues raised.

(R4, tab 4363 at 1) Although Mr. Hillestad testified at the hearing, he was not asked to

provide clarification as to what he intended by this email or if there was any discussion of

his concern or any response (tr. 10/143-147).

21 ·

36. By email dated 15 April 2005 to bidders, Mr. Hillestad wrote:

NOTICE TO ALL:

Eff~ctive this date the time for submittal of additional

questions is now closed. You are reminded that this

project is being solicited and awarded under the.DBP03

procedures. The contractor receiving the award will be

required to complete the design process based on the 35%

design criteria provided. Finished designs will comply .

with all applicable national codes, Laws, Rules &

Regulations in a matter that meets or exceeds accepted

standards of the industry. Ambiguities and/or patently

obvious errors in the concept design criteria will

henceforth be resolved after receipt of proposals and

prior to award.

(R4, tab 2 at 1836)

RFP 8234 - Progressive Collapse

3 7. RFP 8234 also includes various AF review comments with responses from

Baker/PI&T from the CD phase. It includes the entry dated 12 September 2003 relating

to the review of the "Preliminary Design/Charrette Report" by Mr. Tom Cochran,

discussed above (finding 8), that states the· VQ design must resist progressive collapse.

(R4, tab 2 at 753)

38. RFP "8234 SOW included the final Conceptual Design documents for the

TLF and VQ dated May 2004 (R4 tab 2 at 11, 692). The CD for the VQ incorporated

UFC 4-010-01, DoD Minimum Antiterrorism Standards for Buildings, 8 October 2004 27

(id. at 697). 28 The Unified Facilities Criteria (UFC) for design build technical

requirements provides guidance to military departments (R4, tab 505 at 3). The

TLFNQ project was a "full criteria" project that is the most "prescriptive approach" in

the UFC (tr. 11/22-24; R4, tab 505 at 14). Prescriptive means having the most

identification of requirements in the UFC (tr. 11/24). UFC 4-010-01 (see footnot~ 28)

included the following:

27

PE states that by the time RFP 8234 was issued on 10 February 2005, a new and

much more comprehensive UFC 4-023-03, dated 25 January 2005, entitled

"Design of Buildings to Resist Progressive Collapse" had been issued, but that

UFC is not in the RFP.

28

UFC 4-010-01 is not in the record but is available at

http://digital.library.unt.edu/ark%3A/6753 l/metadc 15548/.

22

B-2 STRUCTURAL DESIGN. If the minimum standoff

distances are 8;Chieved, conventional construction should

minimize the risk of mass casualties from a terrorist attack.

Even if those standoff distances can be achieved, however,

incorporate the following additional structural issues that

must be incorporated into building designs to ensure that

buildings do not experience progressive collapse.

B-2.1 Standard 6. Progressive Collapse Avoidance.

Progressive collapse is considered to be significant risk for

buildings of three or more stories .... For all new and

existing inhabited buildings ofthree stories or more, design

the superstructure to sustain local damage with the structural

system as a whole remaining stable and not being damaged

to an extent disproportionate to the original local damage.

Achieve this through an arrangement of the structural

elements that provides stability to the entire structural

system by transferring loads from any locally damaged

region to adjacent regions capable of resisting those loads

without collapse.

39. By email dated 19 April 2005 to the bidders, Mr. Hillestad wrote the following:

NOTICE TO ALL:

In order to assure that everyone is basing their proposals on

the same overall requirements, the following clarifications

are provided:

(2) When addressing the progressive collapse design

requirements for the VQ at McGuire, the specified

threat level is "LOW".

Further clarification should not be required. To the extent

mis-information, erroneous, or misleading direction is

contained in the RFP, appropriate corrections shall be

accomplished in the award .document(s ).

(Tr. 11/217-18; R4, tab 92 at 2, tab 287)

· ·40. Mr. Cochran testified that the Baker 35% design did not meet the requirements

for resisting progressive collapse (tr. 11/140-41 ). He added that the structural system was

not totally designed in the 35% design (tr. 11/141). Mr. Basham reviewed Michael Baker's

23

35% design and found that it was not designed to resist progressive collapse (tr. 2/7-9,

86-87). PE agrees that the Baker 35% design did not account for progressive collapse (app.

br. at 93). 29

RFP 8234 - Triarch

' 41. RFP 8234 included the Temporary Lodging Facility "CID[3o1 CORRECTED

FINAL SUBMISSION," May 2004 (R4, tab 2 at 11). This document included

Specification Section 09911, Painting (Consumer Line Products), for the TLF that

.specified "Duroplex -Triarch Industries" and "Plexture - Triarch Industries" for interior

paints (tr. 10/117; R4, tab 2 at 569-70). Section 09911, paragraph 1.1 A., stated "Refer to

. CID package for selected Interior Paints(s)" (R4, tab 2 at 569). The TLF CID Interior

Finish Schedule and Color Materials Schedule specified Triarch Antigua DS II for the

walls and ceilings (id. at 19, 21).

42. RFP 8234 includes the "Corrected Final Concept Design for Visiting

Quai;ters - DESIGN ANALYSIS," May 2004 31 (R4, tab 2 at 692). This document

includes Specification Section 09911, Painting (Consumer Line Products), for the VQ

that specified "Duroplex -Triarch Industries" and "Plexture - Triarch Industries" for

interior paints (tr. 10/117; R4, tab 2 at 1154-55). This document does not include an

Interior Finish Schedule as did the CID for the TLF.

43. The 35% drawings for the TLF and VQ include finish schedules. The 35%

drawings for the TLF, dated May 2004, required "paint" identified as "TRIARCH

INDUSTRIES ANTIQUA DS II" for the guest rooms (R4, tab 1745, drawing I-301).

The 35% drawings for the VQ, dated 18 May 2004, required "paint" identified as

"Sherwin Williams".for the guest rooms (R4, tab 1746, drawing ID-401).

44. RFP 8234 included the following specification paragraph for the VQ in

"SECTION 01012 - SPECIAL CONDITIONS":

1.2 INTERPRETATION OF THE DRAWINGS AND

· SPECIFICATIONS:

A. It shall be understood that concept design specifications

and drawings are complementary and are to be taken

29

We disagree with PE's characterization that the AF "added a major structural design

change referred to as 'progressive collapse'" during the RFP process. (app. br. at ·

93, 166). It was a requirement of the CD contract but was not incorporated in the.

design.

3

31

° Comprehensive Interior Design (CID) (app. br. at 222).

This document was not entitled "CID" but is very similar to the "CID" for the TLF but

does not have a finish schedule and color and materials schedule (R4, tab 2 at 11-688).

24

together for a complete interpretation of the work.

Anything mentioned in the specifications and not shown

on the drawings, or shown on the drawings and not

mentioned in the specifications, shall be of like effect as

if shown or mentioned in both. In case of a difference

between the drawings and specifications, the .

specifications shall govern. In case of discrepancy in the

figures, in the drawings, or in the specifications, the

matter shall promptly be submitted to the CO who shall,

in consultation with CE, promptly render a decision in

.writing. Normally, the items of higher standard shall

govern. See FAR 52.236-21.

(R4, tab 2 at 882) (Emphasis added)

45. The 5 April 2005 consolidated questions and answers sent to the bidders on

7 April 2005 included the following questions:

44. Page 22 - Para 5.2.3 - 3rd bullet- CID package similar

to the one provided for the TLF was not provided for the

VQ.

Yes see attachment to amendment #1 to the RFP.

59. Page 50 - Item 20 - Is CID available?

Yes, see amendment #1 to the RFP.

(R4, tab 4 at 7, 9) Amendment No. 1 to RFP 8234 does not include the CID for the VQ

(R4, tab 2A). There was no CID pamphlet for the VQ in the RFP 8234 (tr. 5/163, 210).

Based on the 5 April 2005 questions and answers for #44 and #59 and the fact that RFP

.8234 Amendment No. I does not have the VQ CID as indicated in the answers to these

questions, we find that the bidders did not have the VQ CID.

46: By email dated 12 Aprii 2005 to prospective bidders, Mr. Hillestad sent the following:

The paint spec for subject project remains as is for both

facilities. A review of the paint spec for each facility

confirms they are identical. Proceed with your proposal

preparation accordingly.

(Tr. 10/115-16; R4, tab 286)

25

4 7. By internal email dated 13 April 2005 to Mr. Morrison, Mr. Hillestad wrote:

Confusion on the paint issue reigneth, at least in my mind.

When I look at the paint spec in section 09911 for both the

· TLF & VQ dtd 5/18/04, both specs call for Duroplex &

Plexture by Triarch Industries ($4.00 per sq· ft per Don

Hallett). When I looked at the CID for the TLF it calls for

the Triarch paint while the CID for the VQ calls for the

Sherwin Williams product throughout. Dunno guy. I think

:we got a problem, Hallett is standing firm on the difference.

In your absence 1 will go back to Steve Lyman and Dave

Williams to see ifl can get a consensus on the subject.

Evidently there is a great price differential between the two

products. i.e., $4.00 p/g (low side est) for the Sherwin

Williams to $4.00 per S!F(Per EarthTech) for the Triarch

I paint product.

(R4, tab 4364 at 2)

48. In another internal email dated 13 April 2005 to Mr. Williams, copy to

Mr. Macdecy, Mr. Hillestad further explained the problem:

This is a subject that is not going away! We need to reach a

consensus ASAP. Here's \.vhat I have, please compare with

your notes or documents and let's talk. When looking at the

Paint section of the specs, Section 09911 <ltd 5/18/04, the

interior paints called out for both facilities is the Triarch

Product. Now go to the CID documents for the facilities

and you will find that the VQ finish specified is a Sherwin

Williams product while the CID for the ~LF calls for the

Triarch product. We are being called on the variance in the·

specs by the contractors. Apparently there is a significant

price difference in the two paint products. We need to send a

clear message on what precisely it is we want in the finished

product. My project Manager, Tim Morrison.· is TDY this

week and is trying to provide guidance, but he is delayed by

a day in getting back to me. Please take a look and see if we

can solve this before the day is out. Thanks.

(R4, tab 4362 at 1-2) Mr. Williams responded on the same day stating, "What HQ

AFSVA wants is what is specified In Section 09911 (the Triarch Product)" (id. at 1).

26

49. By email dated 19 April 2005 to the bidders, Mr. Hillestad wrote the following:

NOTICE TO ALL:

In order to assure that everyone is basing their proposals on

the same overall requirements, the following clarifications·

are provided

(1) The interior paint specification shall be construed as

"BRAND NAME OR EQUAL." Substitutions for the

Brand name "TRIARCH Architectural Finishes" shall

meet or exceed the salient characteristics established in

par 1.4 A., in Section 09911 - Painting (Consumer Line

Products)- dated 5/18/2004 set forth in the specifications

provided.

Further clarification should not be required. To the extent

mis-information, erroneous, or misleading direction is

contained in the RFP, appropriate corrections shall be

accomplished in the award document(s).

(Tr. 11/217-18; R4, 92 at 2, tab 287) The "interior paint Specification" Mr. Hillestad was

referring to was RFP 8234 Specification Section 09911, Painting (Consumer Line Products)

(tr. 10/116-17). By another email dated 19 April 2005, to the bidders, Mr. Hillestad stated:

Subject: McGuire - VQ/TLF - Paint issue

To All:

A further note re: interior paint specs for above projects.

The Triarch or equal product will only be applied to the

interior walls of the structures. A satin finish paint in the

color ~pecified shall be applied to the ceilings. This should

conclude the· interior paint products questions.

(Tr. 10/118; R4, tab 288) PE acknowledged receipt of these "Additional clarifications"

(R4, tab 92 at 1).

50. Mr. Tengler, PE's chief estimator, testified that in developing its bid for

interior finishes, PE used a bid from Testino's that omitted "wall coverings" for the VQ

(tr. 4/80). PE had a higher bid from Pro-Spec for the VQ that included wall coverings

that was not used (tr. 4/81). We find this mistake likely caused PE to under-bid the wall

finish work for the VQ.

27

RFP 8234 - StormWater Detention Pond

51. RFP 8234 included various meeting minutes. The minutes from the

"Intermediate Design Review" meeting held on 7 November 2003 included a discussion

of storm-water management:

[Action \tern] Base CE raised concerns regarding the

proposed stormwater management pond that the pond would

hold water for extended periods and be a bird attractant

close to a runway and that it would tum into a "marsh".

Baker indicated [its] concern for potential increased

frequency of flooding along and over Mitchell Road if

surface 11,moff from the project was not controlled. A·

detailed hydraulic analysis for proposed. conditions .would

certainly need to be conducted if no storm water

management was provided to determine the increased

frequency of flooding over Mitchell Road. Following

further discussions, it was decided that storm water

management would be shown with options:

-- Open SWM Pond (as shown on intermediate plans)-

Base Bid

-- Underground SWM System - Optional

-- Replace Mitchell Road Culvert system - Optional

-- Do nothing and allow increased frequency of flooding

over Mitchell Road. If the 3rd or 4th options are pursued, a

detailed and comprehensive hydraulic analysis must be

conducted.

[Status] Hydrant Flow Test provided 11/4/03. Design

solution pending

(R4, tab 2 at 734)

52. A final_ design review meeting was held on 14 January 2004 (R4, tab 2 at 743).

RFP 8234 includes minutes of the meeting including the following:

3. Baker was given direction to remove the retaining pond

from the project. Alternative solutions will be investigated.

Responsible Party: Joe Bellini - Civil

Status: Completed

(R4, tab 2 at 743)

28

· 53. RFP 8234 includes an entry dated 6 January 2004 relating to "General" and

"100% RFP" from Ms. Willingham, HQ AMC, Scott AFB, reads:

[Comment] Detention Pond. For the last two years McGuire

has experienced greater saturation of the soil so problems

have occurred with drainage. Please make provisions to

insure the detention pond has the correct capacity and

design.

[Action] The intent with the detention basin is to store

increased runoff temporarily during the rainfall event to

control peak flows. The size of the detention basin shown

on the grading plan was approximated to control the

LS-year storm per LEEDS recommendations. The size may

increase if it is determined during final design that the

runoff will increase in frequency and magnitude of flooding

over Mitchell Road.

(R4, tab 2 at 760)

54. RFP 8234 includes another entry dated 7 January 2004 relating to "Architecture"

and "Final D,esign (95%)" from Mr. Bennett, PE:

[Comment] If the north parking.can have storm water feed

directly into the culvert, can the central parking do the same

as well? This is a LEEDS issue as to how much water goes

through the detention basin before entering downstream.

Where do we stand on this issue? We would like to simplify

the storm drainage piping from the central entry parking lots

to the south parking lots,

[Response/Action] Consensus was reached to leave the

basin in the project so the costs could be captured if deemed

necessary. We have a note on sheet C-106 that provides

several alternatives to the basin (including eliminating

storm-water detention all together) and indicates that a final

determination on the basin shall be made during final

design. The note also indicates that if it is determined

during final design that the storm-water basin could be

eliminated, the storm drain system could be re-routed to

more directly connect to the Mitchell Road channel. The

north parking area was allowed to discharge directly into the

channel because an existing impervious area just west of the

29

VQ, roughly equivalent in area, is draining to the basin to

compensate for bypassing runoff from the new north

parking area.

(R4, tab 2 at 763-64)

5 5. RFP 8234 includes a very similar entry dated 13 January 2004 relati,ng to "Civil

Engineer Squadron" MAFB and "Final Design (95%)" from lLt McAlpine:

[Comment] The retention pond needs to be removed from

the project. Another alternative for storm water drainage

must be determined.

[Response/Action] Do not concur. Consensus was reached

to leave the basin in the project so the costs could be

captured if deemed necessary. We have a note on sheet

C-106 that provides several alternatives to the basin

(including eliminating storm water detention all together)

and indicates that a final determination on the basin status

shall be made during final design.

(R4, tab 2 at 777) Mr. Williams testified that the AF knew the base did not want a

detention pond but did not have the detention pond removed from the 35% design

because it was too expensive to go to underground storage (tr. 15/94-95).

RFP 8234 .Utilities

56. RFP 8234 included 6 January 2004 review comments by Parsons relating to

utilities with AF responses (R4, tab 2 at 244 ):

26 CS 101 Need to show all existing utilities, sizes and invert

elevations.

RESP: Noted.

The survey base mapping shows existing utilities, including

sizes and.invert elevations for all gravity systems (sanitary

and storm).

27 CD101 Need to show all existing utilities to be removed.

and/or relocated with existing sizes and invert elevations.

RESP: Noted.

Existing utilities to be removed is shown on the Demolition

Plan and is as complete and accurate as the survey. Sizes

30

and invert elevations of existing systems are also shown to

the extent they are shown on the survey.

29 CUI01 All proposed utility systems need to be identified

with invert elevations, sizes, locations, type of materials,

Communications lines need to be included.

RESP: Noted.

All proposed utilities are shown on the Site Utility Plan.

Invert elevations, pipe sizes, and material types are outside

the scope of the RFP design documents.

(R4, tab 2 at 245) ·

RFP 8234 Geotechnical Report

57. RPF 8234 included a copy of Professional Service Industries, Inc. (PSI)

Geotechnical Engineering Services Report for the MAFB VQ, dated 24 November 2003

(R4, tab 2 at 809-10, 822-37). The report indicated it was prepared for "Parsons

Engineering Science" San Antonio, Texas (id. at 810). The report included soil boring

logs at 12 boring locations (id. at 824-37). The boring locations and depths were ·

selected by Parsons Engineering (id. at 814). The written summary of the subsurface

conditions beneath the VQ identified, "tan, browri. gray Sand (SP) and Silty Sand (SM)

with Silt (ML) and Clay (CL) strata of varying thickness and at varying depths" (id.).

Although there was no mention of organic material in the narrative results, boring log

B-0 IA indicated "Trace amounts of organics observed at 10 ft" (id. at 825). The

"Geotechnical Discussion" included:

The data developed during this study indicate that the

soil and groundwater conditions at the proposed site of the

Visiting Quarters are generally considered suitable for the

construction of the proposed structures and pavements areas

provided that recommendations presented in.this report are

implemented.

(R4, tab 2 at 815) The "Water Level Measurements" section of the report stated: "Free

groundwater was observed between 6 and 13 feet bgs[32 J the borings upon completion.

Please note that groundwater levels can vary depending on climatic and rainfall

conditions." (Id. at 815)

32

"Bgs" refers to "below ground surface" (gov't br. at 40).

31

PE 's Executive Proposal Review

58. Prior to submitting its proposal, PE conducted an Executive Proposal

_Review (EPR). The results of the EPR were presented in a do.cument by the same name

dated 31 March 2005 (R4, tab 1759). 33 The "Executing Organizations" were identified:

5. Executing Organization

Global Business Unit: PI&T

Division: PI&T-FERM

Sector: FERM - Infrastructure

Office: Parsons Evergreene, Salt

Lake City Utah

Parsons Entity: PARCOMM (Parsons

Evergreene

(Id. at 5) The pricing strategy was identified:

7. Pricing and Execution Strategy

Pricing for this task order for review purposes will be

derived using a combination of current subcontractor

pricing of unit rates, detailed take off quantities, and

the recent historical pricing data as part of the 35%

design. The final pricing for bid submittal purposes

will consist of firm fixed pricing from subcontractors

based on a defined scope; with Parsons Terms and

Conditions, and prime contract flow down provisions

incorporated. PE will also collect one or more firm

fixed price bids for the entire work scope from one or

more local general contractors.

Since Parsons preformed the 35% design, this has

allowed more precise scope definition, limiting our

overall liability for scope gaps in the final project

pncmg.

(Id) (Emphasis added) Several times in the EPR, PE stated that it preformed/completed the

35% design (id. at 5-7). PE planned to "require that all subcontractors/vendors hold their .

pricing for 120 days" and require a subcontractor release "or we will require a price

adjustment to account for any inflation in cost" (id. at 79). PE planned to include the

33

Neither party presented testimony about this document at the hearing. PE objected to

its use by the AF, an objection we overruled in the preliminary matters section of

this decision.

32

maj ority~of material costs in firm-fixed-price subcontracts and that "volatile materials such

as concrete and steel" would be purchased within the 120 days and stored either on site or in

bonded and insured warehouses (id. at 100). The EPR included a risk management section

that among other risks, identified "Quality of subcontractor pricing at the 35% design stage,"

and "price escalation of materials prior to buy-out" and "Completion of plans from 35% to

100% - managing to scope and cost" ( id. at 177).

PE's Proposal

59. In April 2005, Mr. Tengler was PE's chief estimator (tr. 4/6). He computed

PE's bid of $33,566,277 (tr. 4/30; R4, tab3732 at 343). Mr. Booth is also an estimator

for PE (tr. 7/9). He first became involved in the TLF/VQ project in March 2005 (tr. 7/11).

Mr. Booth prepared a "check estimate" on the TLFNQ project (tr. 7/12; R4, tab 506).

The purpose was to conduct an independent estimate to check the "ball park" validity of

Mr. Tengler's estimate and "flesh out any scope items" added since the prior estimate

(tr. 7/13, 29). He was given only the Baker drawings, the RFP, specifications and

drawings (tr. 7/14-15; R4, tab 506 at 1). The estimate was based on the assumption that

the "site will be delivered clean, per the RFP" (R4, tab 506 at 1). He didn't do "takeoffs"

from the drawings, but used "RS Means" values per square foot of the various systems in

the building (tr. 7/25-27). The estimate for the VQ was $18,182,698 (R4, tab 506 at 19)

and the TLF was $15,160,521 (id. at 33) for a total of$33,343,219.

60. PE signed and submitted its "Price Proposals" on 27 April 2005 in the total ·

amount of $33,566,277 (R4, tab 5). The offer had an acceptance period of 120 calendar

days from the date of the signed offer34 (id. at 1). Before award the AF contacted PE and

asked PE to confirm its bid. The AF did not suggest that the bid was too low compared to

the-other bids. (Tr. 1/114-15) PE held an executive level meeting to discuss the AF's

. request. Mr. Radin recalled they discussed the three different estimates supporting the

bid: (1) the original $33,566,277 estimate by Mr. Tengler used for the bid (tr. 1/117; R4,

tab 506 at 3), (2) the $33,343,219 check estimate by Mr. Booth that used RS Means

(tr. 1/l 17-19;R4, tab 506 at 6, 19, 33) and (3) the U.S. Cost estimate of$29,514,000

(tr. 1/116; R4, tab 506 at 36, 51) .. As a result of this meeting PE decided it was a good bid

and they would stand by it (id.).

AF Price Competition Memorandum ·

61. The Price Competition Memorandum (PCM) for RFP 8234, signed by

Mr. Hillestad, Mr. Brackett and CO Macdecy, all from A.FCEE," lists the Construction

Cost Limitation (CCL), 35 IGE, and bids from the three bidders, MWH, Caddell and PE:

34

One hundred and twenty (120) days from 27 April 2005 is 25 August 2005.

35

The CCL sets the maximum price authorized at the time.

33

TLF CCL IGE MWH Caddell PE

Base Bid $15373,202 $12,936.476 $19,128,036 $17,456,748 $15,373,202

Equip't $192,046 $176,994 $204,302 $159,106 $159.755

VQ

Base Bid $17,977,243 $16,160367 $28.229,644 $27.429,776 $17,977.243

Equip't $56,077 $69.239 $106,902 $137,434 $56.077

TOTAL $3J,598,568 $29,343,076 $47,668,884 $45,183,064 $33,566,277

(R4, tab 3743 at 1)

62. Part of the Introductory Summary to _the PCM reads:

A total of three (3) offers were timely received. All three

exceeded the CCL. The MWH and Caddell Offers \.Vere too

far out of range to allow further consideration. The Parson

Offer was determined to be salvageable with discussions.

Follmving a series of discussions it was determined that

Parsons-Evergreene was willing to revise their original offer

to an extent that would assure an acceptable proposed

(Price/Cost) for this acquisition. Parson's representatives

advised they had been able to utilize knowledge acquired

during the Constructability Review to gain assurance that

the project was doable at their final figure. Their proposed

offer was affinned in writing by The Corporate President,

Mr. Christopher Nielson. Additionally, they were confident

that there ,vould be no problem in obtaining subcontractors

during the work progression. Despite their organizational

HQ location in Salt Lake City, Parsons has main_tained a

strong presence on the Eastern Seaboard. These assurances

are deemed adequate to substantiate the decision to award to

Parsons-Evergreene, LLC.

(R4, tab 3743 at 3)

63. The PCM Evaluation Summarv., read·.

a. Reasonableness

The three proposals received were compared to each

other and with the Independent Gover111i:1ent Estimate (IGE)

and the Construction Cost Limitation (CCL). The proposals

received from MWH Americas and Caddell Construction,

Inc. were deemed irreparably high \vhen compared with the

.34

CCL, the IGE and the offer from Parsons. MWH and

Caddell offers were rejected out. of hand. The Parsons offer

was less than .07% higher than the CCL and approximately

16% above the IGE. The IGE was a Year old at the time of

comparison. Given rapidly fluctuating prices resulting from

high oil prices and other market influences, the CCL was

given heavier comparative weight. The Parsons offer was

determined to be sufficiently within range to attempt a

satisfactory resolution. Following a series of telephonic and

electronic discussions, Parsons submitted an offer that

allowed award \,Vithin the funds set forth in the CCL. A

final decision \Vas made to proceed with the award to

Parsons.

(:i4, tab 3743 at 6) ·

64. The Determination of Adequate Price Competition, attached to the PCM,

reads in part:

Considering all factors, the offered price selected (see

attachment 2 to the PCM) is determined to be fair and

reasonable based on adequate price competition ....

(R4, tab 3743 at 9) ·

Delivery Order No. 0013 for 100% Design and Construction

65. Delivery Order No. 0013 (DO 13) was issued to PE on 13 July 2005 (R4, tab T

at 1). DO 13, CLIN 0003AA was for "DESIGN & CONSTRUCT TLF" at a fixed price of

$15,269,702.00 (id. at 2). DO 13, CLIN 0003AB was for "DESIGN & CONSTRUCT

VQ" at a fixed price of $17,859,043.00 (id.). The completion date for both the TLF and

VQ was 5 March 2007 (id. at 5) for a total period from award to finish of 600 days. PE

was the "Design-Build-Plus 03 (DBP03)" contractor for this project (id. at 20).

66. DO 13 required construction of the TLF and VQ in accordance with the SOW

which was Attachment 1, entitled, "Temporary Lodging Facility (PTFL 04-5000) &

Visiting Quarters (PTFL 02-3004) McGuire AfB, NJ" dated 31 March 2005 (R4, tab 7 at

2). The SOW was the same one found in RFP 8234 (R4, tab 2B at 3, tab 7 at 17). The

SOW incorporated the 18 May 2004 concept design documents for the TLF and VQ on

two compact disks (R4, tab 7 at 25).

35

Project Management Plan (PMP)

67. By email dated 25 July 2005 to Mr. Binks, one of PE's Project Managers,

and a number of AF personnel, Mr. Morrison forwarded the AF's PMP, dated 17 May

2005 (R4, tab 528). The PMP defines the roles and responsibilities for the following

AF organizations: Headquarters Air Mobility Command (HQ AMC); Headquarters AF

Services Agency (HQ AFSVA); 305 1h CES, Civil Engineer Squadron, MAFB; 305 1h

SVS, Services Squadron, MAFB; and Title II Contractor Services Support (id.). The

PMP informed PE of the following:

As minimum the Title II contractor, Base Civil Engineer and

Services Representatives, HQ AMC Services, HQ AFSV A,

CM, CA, and any other organization interested will

participate in all final acceptance inspections The DB+

contractor will schedule the final acceptance inspection

through the Title II contractor with sufficient advance notice

for maximum participation by interested parties.

(R4, tab 528 at 13)

27 July 2005 "Kick:-0.ff" Meeting & Initial Notice to Proceed {NTP)

68. A "Pre-Construction and Pre.;. Work Conference" was held on 27 July 2005 R4,

tab 3004 at 110). Even though there was no requirement for an NTP for design (R4, tab 2

at 565; tr. 10/170), the AF issued an NTP on the "design completion phase" just prior to

this meeting. It was signed by CO Macdecy on 25 July 2005 with an ·"effective date" of

· 13 July 2005 (tr. 7/229-30; R4, tab 3004 at 108). Mr. Binks signed acknowledging receipt

on 26 July 2005 (R4, tab 27). Mr. Evans, PE's expert in scheduling issues, testified that

the government initially "backdated" the NTP to 13 July 2005 but changing the date to

27 July 2005 was discussed during the 26 July 2005 meeting (tr. 7/230-32; R4, tab 3004 at

111). Notes of the meeting include the following:

NTP presented to Parsons Evergreene was dated

13 July 2005, twelve (12) days prior to actual receipt. Issue

date needs to reflect date of this meeting, 27 July 2005,

which would then be the official start of the six hundred

(600) days allotted in the FNA for.construction.

(R4, tab 3004 at 111) Mr. Hillestad attended the 27 July 2005 "kick-off' meeting

(tr. 10/128-29, 153-54). He disagreed with the above-quoted meeting notes, testifying that

he and Mr. Binks agreed that the NTP date would be 13 July 2005 (tr. 10/119-22, 130; R4,

tab 525 at 1:-2).

36

69. Mr. Bennett recalled that at the 27 July 2005 kick-off meeting he explained

to th~ government representatives that design-build allowed PE the flexibility to make

changes so long as the overall intent of the building was satisfied (tr. 5/24 ).

PE's Initial Schedule

70. PE's initial as-planed Critical Path Method (CPM) schedule for the VQ and TLF,

dated 11 August 2005, was submitted to CO Macdecy on 12 August 2005 (R4, tab 1562,

. tab 538; tr. 16/135). The schedule includes a "Delay orNTP" from 12 May 2005 to 13 July

2005 (R4, tab 1562 at 3). The schedule indicates PE would buy out all of its subcontr~cts

for the VQ and TLF between 11 August 2005 and 3 November 2005 (id. at 3-4, 20-21 ).

Although there is little evidence in the record explaining this schedule, it shows the critical

path (red bars) running through the foundation work for Wing A of the VQ (id. at 6).

August- September 2005 Communications & Meetings

71. By letter dated 23 August 2005 entitled "Memo of Understanding:

Design/Build Procedures" from Mr. Richardson, Parsons Regional Construction Manager 36

(tr. 2/104), to CO Macdecy, Mr. Richardson expressed PE's "understanding of recent

· discussions concerning construction means and methods to be used for the design and

construction of the Temporary Lodging Facility and Visitors Quarters at McGuire AFB"

(R4, tab 4609). The letter read in pertinent part:· ·

In the particular case of the McGuire AFB V.Q and TLF.

Parsons Evergreene was the DBP03 contractor during the

CD phase and thus is very much aware that the designs

produced during the CD phase were "conceptual" in nature

by the government. It was repeatedly discussed, that beyond

specific design elements, the DBP03 contractor of record

had the ability to modify design elements in order to keep

the project within budget and schedule, as long as the

overall intent of the end user was not compromised and

the design meets all applicable building codes and

government design criteria.

I. Overall concept and expression of the building will

follow the 35% design. (Materials, and design details

36

The PDF version. of the letter is not signed, but there was no objection from the

government when it was used at the hearing and we assume it was signed, sent

and received (tr. 5/25-27).

37

will be further developed and designed through the 64%

and 95% design.)

2. Floor plan layout and interior design have been

established as final and are to be per conceptual

drawings.

5. Structural systems have not been designed or stamped

and therefore will be advanced, changed or otherwise

"designed" to meet constructability reviews, code

reviews, AF design guideline reviews and to work with

the required conceptual architectural, mechanical, and

electrical items as set forth in the RFP. It will be the

responsibility of Parsons Evergreene to determine the

structural system that meets the codes and AG design

guideline.

(R4, tab 4609 at 1, 2)

72. A contract coordination meeting was held on 1 September 2005 between· .

Mr. Romano, PE's project manager and Messrs. Morrison and Hillestad from AFCEE

contracting (R4, tab 3016 at 1). PE's notes ofthe meeting included:

The group discussed the idea of "conceptual" drawings and

design build. Everyone agreed that Parsons has the

opportunity to improve on the conceptual drawings in the

less developed portions of the drawings such as electrical,

mechanical, structural, and civil. Architectural drawings are

much more developed and the expectation is that the floor

plans and room layouts are fixed and will not change.

Parsons agrees with this understanding.·

(Id. at 1-2) Mr: Bennett, PE's Architect, testified that the structural drawings in the 35%

drawi~gs was basic, but did not account for lateral design, seismic design, wind loads, and

full sheer and connection details (tr. 5/29-30}. He testified that progressive collapse was

"not even part of that original discussion" (tr. 5/30). The notes of the meeting indicate

that after the meeting Mr. Romano asked if the area where houses and a swimming pool '

had been demolished had been backfilled with engineered fill. He asked for test reports

documenting the fill and if an environmental site assessment had been completed for these

areas. (Id. ar2)

38

Structural Brick Proposal

73. On 5 October 2005, Mr. Bennett sent a letter to Mr. Romano, PE, suggesting a

change in the structural design of the VQ _(R4, tab 3885 at 7-8). The letter listed six design

"issues" and "solutions" including use of structural brick walls (id.). Mr. Bennett testified

that this design change was intended, in part, to address progressive collapse (tr. 5/31 ).

On 10 October 2005, Mr. Romano, submitted to the AF a "Notice oflntent to Modify

Structural Design" for the VQ (R4, tab 3 885 at 9-10). In the letter PE explains that the

structural design embodied in the 35% design was "incapable of being utilized as shown

AND remain able to maintain the integrity of the desired architectural elements" (id. at 9).

Mr. Lengyel worked on the change and testified that they (PE) recommended changing

from the double wall concept to a single wall made of structural brick with an "open web

metal joist and metal B-deck with concrete topping" (tr. 4/188). Mr. Lengyel testified

that the 35% design did not address "progressive collapse" and that, once they (PE) put

that criteria in the design, the VQ "became inordinately heavy and difficult to detail"

(tr. 4/190-91 ).

74. On 16 November 2005, Ms. Kite 1 PE contracts manager, sent CO Macdecy a

letter entitled, "Request to Proceed with Structural Brick system" (R4, tab 557). The

letter included as Attachment 1 a copy of another 16 November 2005 letter to

CO Macdecy answering various questions and Appendices A through F presenting

information about structural brick. Attachment 1 included:

The color of brick has not been finalized at this time. The

manufacturer we are negotiating with has been finding

various brick colors for us to analyze. If necessary, we will

have a custom color brick fabrkated to match the base

standard. Parsons understands that the brick color must

meet the base standard and will submit the brick color

during the submittal process .

. (Id. at 3) Ms. Kite also stated PE could match the brick size required by the Base

Architectural Compatibility Guide (id.). Ms. Kite stated that the Appendices included

sufficient information to answer CO Macdecy's questions in his 21 October 2005 37 letter

and she asked for permission to proceed with the structural brick solution (id. at 1).

75. On 8 December 2005 the parties held a coordination meeting (R4, tab 239).

Minutes of the meeting document that the parties discussed PE's desire to change the

design of the VQ to structural brick. The AF expressed its desire to stick to the 35%

design and that only "undeveloped areas" of the 35% design were subject to change by

PE. The AF directed PE "to discontinue structural brick design," but PE expressed

concern that the 35% design could not be built without significant modifications to

37

This letter is not in the Rule 4 index.

39

address progressive collapse. The AF agreed to consider "additional information and

supporting documentation outHning" PE's concerns. (Id. at 2-3)

76. Ms. Brown became the CO for the VQ/TLF contract in December 2005

when Mr. Macdecy left (tr. 11/255; R4, tab 7A at 2). In a 14 December 2005 email to

CO Brown, Mr. Williams stated that the RFP/35% design did not have shear walls that

lined up in the Admin/Housekeeping wing of the VQ that will "require additional

structural members to be installed that will impact the design in an adverse way" (R4,

tab 4379 at 2). Mr. Williams wrote: .

Can the RFP design be built? Yes. However, if the

government takes the position that the DB contractor cannot

deviate from the RFP at all then we will have clearance

problems between the ceiling and structure. That would

leave only two option as I can see it at this time: 1) increase

the floor to floor height or 2) lower the ceiling height. HQ

AFSVA does not support the second option.

The requested structural change [structural brick] appears to

resolve these issues of clearance and improves AT/FP.

(R4, tab 4379 at 2) Mr. Williams supported the change to structural brick suggested by

PE stating, ''Please ensure Parsons makes the proper request for the structural system

only and modify the contract as required (id. at 3; tr. 15/47).

77. By letter dated 15 December 2005 to PE, Subject "Sixty-five Percent Design

Submittal Requirements, Contract No. FA8903-04-D-8703, Task Order 0013,"

CO Brown expressed the AF's concern over PE's proposed change to structural brick:

1. The Government is serio.usly concerned about the

direction that Parsons Evergreene has chosen to take with

respect to the design of the subject task order. That task

order identifies the controlling contractual documents,

including the statement of work, specifications and

drawings. These documents provide the legal framework

for the basic design as represented by the 35% design for

these projects.

2. You have a contractual obligation to comply with all

contractual documents, including the designs that are

indicated in the specifications and drawings. If you find

during the continuation of your design that the initial design

· work includes errors or other deficiencies, it is your

affirmative obligation under the task order to identify the

40

error or deficiency, specifically referencing the applicable

portion of the task order," include specific data substantiating

the existence of the error or deficiency, and identify any

proposed solution to the design error or deficiency. That

information will be used to evaluate the proposed solution

and either incorporate your design changes into the task

order or advise that the solution is not acceptable to the

Government. .

3. What has occurred, essentially, in the current situation

concerning the structural brick is that you have identified

that there are structural problems and you have proposed a

significant redirection on several structural components.

This contention is without sufficient rationale to substantiate

that there is indeed a problem that cannot be resolved

through design development of the task order documents.

The "Structural Brick Proposal" is considered an incomplete

and unacceptable method to identify a design solution.

Ideally, we seek a solution that most closely reflects the

structural character that is on contract.

(R4, tab 32 at 1) CO Brown directed PE to provide a "comprehensive and concise list

of errors, deficiencies, or other specific issues that you have identified with the original

design" (id.). Mr. Lengyel testified that such information was included in the

information submitted to the AF in the October 2005 letter (tr. 4/202). CO Brown also

directed PE to submit recommendations that "more closely resembles the structural

system that is in the task order" (R4, tab 32 at 1-2).

78. PE responded to CO Brown's 15 December 2005 memorandum on

22 December 2005 (R4, tab 36). PE began the letter with, "Parsons Evergreene (PE) is

also very concerned about this project, but specifically with our inability to make

progress on our structural design using what we consider necessary and appropriate

alternative systems" (id.). PE elaborated on three "primary issues in the current concept

design.that need to be addressed" (id.). The issues were: (1) Inadequate Shear Walls and

Beams on the second and third floors in the business center wing and interior lobby that

do not line up with the main floor that will require larger beams that will interfere with .

ceiling heights and mechanical runs; (2) Inadequate Mechanical Plenum Space caused by

the concrete floor plank system that does not allow space for ducts and lighting fixtures;

and (3)Progressive Collapse and Structural Redundancy is not accounted for in the 3~%

design (id. at 1-2). Mr. Lengyel testified that it was impossible to build the 35% design

the way it was depicted with the double wall design and meet the nine-foot ceiling

clearances. and other architectural details in the design (tr. 4/205). Mr. Bennett testified

that the 35% design was deficient because it did not account for progressive collapse

(tr. 5/36). In the 22 December 2005 letter, PE went on to explain how its structural brick

41

design would solve these problems. It also quoted the pre-bid question. and answer that

questioned the adequacy of the 35% design to satisfy the progressive collapse·

requirement, including "[a]re we allowed to substitute assemblies and structural systems

in order to be compliant with the progressive collapses requirement provided the

performance requirements and appearance of the building are satisfied?" (id. at 4). The

question also noted that providing "a facility compliant with the Progressive Collapse

criteria would require substantial work at a considerable additional compensation"

(id.). PE included the AF's answer:

Yes, the drawings are concept only. You have the

responsibility to generate the construction details and

drawings. Tim Morrison, AFCEE/HDM

(R4, tab 36 at 4) .

79. The AF commissioned a review of structural systems for the VQ by

Jaster Quintanilla & Associates (JQA) (R4, tab "588 at 1). The resulting report, dated

7 January 2006, included the following:

The configuration of the load-bearing masonry walls and

structural steel beams at this level should be similar to that

indicated on Sheet S-105 (Third Floor Framing Area A).

Because the interior walls in the north-south direction on the

Second Floor do not align with the walls on the First Floor,

it is likely that a structural steel frame will be required at

these locations on the First Floor to adequately resist the

lateral forces. This condition can be readily addressed

through proper structural design and detailing.

At this time, it does not appear that the structural system

indicated in the 35% Level of Design Documents has been

designed and detailed to meet the requirements to resist

progressive collapse. However, there is nothing that

suggests that the primary structural system selected

(load-bearing concrete masonry with hollow core concrete

planks) cannot be adequately designed, reinforced, and

detailed to meet those requirements. ·

(R4, tab 588 at 1-2) Mr. Radin testified that this report disclosed design flaws in the

35% design, and the structural brick design suggested by PE was an attempt to fix this

problem (tr. 1/219-20). Mr. Lengyel testified that JQA agreed with PE that the 3 5%

design would require structural changes (tr. 4/219).

42

80. The government responded to PE's 22 Detember 2005 letter on 12 January

2006 (R4, tab 3913 at 6). The memorandum criticizes PE for continuing to advocate for

its structural brick design stating "On 21 October 2005, the government formally

rejected Parsons alternative design proposal (specifically the structural brick) and

directed Parsons on proper process for submission of requests for contract changes"

(id.). The government responded to the three technical issues raised by PE stating that:

( 1) Inadequate Shear WaHs and Beams can be resolved with structural design of any ·

needed beams and changes to floor plans; (2) Inadequate Mechanical Plenum Space can

be resolved by "slightly lowering the ceiling height, reshaping the duct work, or as a last

resort, slightly raising the building height"; (3) Progressive Collapse and Structural

Redundancy can be resolved by adding additional reinforcement to the 35% design to

meet the minimum progressive collapse criteria (id at 7). The government also

revealed that it had employed JQA to analyze the 35% design. The AF informed PE

that JQA reported that the progressive collapse requirement could be met with the 35%

design "with the proper detailing and design completion" (id.). With regard to the pre-

bid question and answer the government stated that "[n]otwithstanding Government

responses to RFI questions during the RFP process" PE was required to comply with the

specifications and drawings, but should notify the government of design deficiencies for

government consideration (id. at 8).

81. On 17 January 2006 PE submitted to the AF a PDF "Binder" including a

cover summary letter entitled "Request to Proceed with Structural Brick system,"

supported by 148 pages of backup (tr. 4/197-98, 5/32-33; R4, tab 592). This submission

provided the information requested in CO Brown's 15 December 2005 letter.

Mr. Lengyel worked on putting the binder together and he testified that it addressed the

AF's concerns over brick size, and acoustical and fire ratings (tr. 4/198). Mr. Lengyel

developed drawings of the wall sections to show how the new wall design would work

(tr. 41199). The binder also included a report from a ·structural engineer indicating that

the structural brick wall was stronger than the CMU wall (tr. 4/200; R4, tab 592 at 120,

200-01). Mr. Lengyel testified that the manufacturer of the structural brick, Atlas Brick,

could provide different size and color brick so size and color would not be a valid

reason for rejecting the structural brick (tr. 4/192-94 ). He testified that the structural

brick met MAFB architectural standards for brick (tr. 4/195-96; R4, tab 833 at 18).

Mr. Rola, AF senior civil engineer, agreed that PE offered to provide structural brick

that met the base architectural standard or the brick specified in Baker's 35% design

(tr. 15/121-22). In PE's structural brick proposal it used four by four by eight inch

closure face brick that was the base standard (tr. 5/89-90; R4, tab 833 at 8). PE

proposed two different wall assemblies, each performed better than the CMU with

veneer brickin the RFP (tr. 4/196-97).

82. CO Brown agreed that one problem with the 35% design was that "the shear

walls in the different floors didn't line up and they had to be moved in order to carry the

loads down and meet the progressive collapse requirements" {tr. 12/109-10). She agreed

43

that the structural brick design would solve the progressive collapse problem with the

35% design (tr. 12/110).

83. CO Brown testified that PE told her that the Baker design "would be near to

impossible to build" due to many technical problems (tr. 12/14). She asked her

technical support people about PE's concerns. She was told there were some problems

with the Baker design but they could be corrected "by somebody that knew what they

were doing." (Tr. 12/15)

84. CO Brown convened a "summit meeting" in San Antonio, Texas, on

25 January 2006. CO Brown started the meeting with a discussion of the design build

process:

The premise comes down to the contractual document; what

ever documents we start the process with is what drives the

design. If there is something in the basic contract that is

incorrect the contractor has the responsibility to propose

solutions. However, in order to change the contract there

must be consideration with respect to cost either positive or

negative.

(R4, tab 38 at 1) Mr. Bennett attended and the meeting minutes document that

Mr. Bennett said the following:

f) Keith Bennett responded to above comments by stating

that early in the bid process concerns with the structure

were voiced and requests were made for liberty to

substitute structural systems within the same

architecture. Keith Bennett stated that it was never ·

portrayed that the exact structure or the exactness of the

drawings was what they would be held to. Therefore

they did not feel it was necessary to point out specific

deficiencies with the 35% because they felt it clearly

stated they could look at other options. I know

contractually that may be messy but that was what was

portrayed at the 35% review pre going out on the street.

(Id. at 2) Mr. Bennett stated that PE was "okay with being told the 'Structural Brick' is ·

off the table we can move on, but it needs to be clear that there will be cost impacts that

will need to be looked at regarding solutions to deficiencies" (tr. 4/207, 209; R4, tab 3 8 at

2). He explained that the structural brick design would solve the problems with the 35%

design and not "have a cost "implication" (id. at 2). Mr. Bennett affirmed what he said in

his testimony at the hearing (tr. 5/46, 48-49).' Mr. Romano stated that "Parsons never said

they couldn't build this [35%] design," however, the structural brick approach was an

44

attempt to keep the project within budget (R4, tab 38,at 4). Mr. Aldave, PE's structural

design engineer, explained that the structural btick design was necessitated by the

requirement to design to avoid progressive collapse (id. at 2-3). He stated that the Baker

35% design did not satisfy the requirement to avoid progressive collapse (id. at 4 ). There

was discussion of pre-bid questions, "Brian Lamont respond that if you go back to the

pre-bid Q and A notes, one of the comments was that a design to provide a progressive

collapse compliant facility will require substantial work at a considerable additional cost"

(id. at 5). AF representatives from the Air Mobility Command (AMC) and MAFB stated

that "architectural compatibility" (matching surrounding buildings brick) was the "main

issue" that caused them to stick with the concrete masonry unit (CMU) and brick veneer

of the 35% design (id. at 5). Mr. Romano stated that they could match the brick in the

surrounding buildings with the structural brick (id.). CO Brown directed PE to proceed

with the 35% design (id. at 7; tr. 15/52). The structural brick design was finally rejected

by Ms. Brown during the 25 January 2006 meeting (tr. 2/231, 12/15). Mr. Lengyel

recalled that at the end of the meeting PE understood that the structural brick design was a

dead issue and they were to build to the 3 5% design (tr. 4/217-18). PE had developed the

65% design using structural brick and when the decision to use the Baker 35% design was

issued, PE had to "go backwards and redo the 65 percent design" (tr. 2/193).

85. Mr. Basham testified that PE's structural brick design would solve the lack

of progressive collapse protection in the 35% design. Since the AF would not accept

the structural brick, PE had to change the double wall design to account for progressive

collapse. PE realigned some structural systems to line up the columns on the second

floor with those on the third floor and the ceilings had to be lowered. (Tr. 2/92-94)

Hollow core planks are not industry standard when progressive collapse is involved

(tr. 5/87). PE used the hollow core planks in the VQ but as a result had to add

substantial reinforcement in the 35% design (tr. 5/87-88).

86. Mr. Temchin testified that after the January meeting, PE had to redesign the

double-wall 35% design (tr. 7/191-92). PE designed and built a steel frame inside the

VQ to prevent progressive collapse because the brick veneer facing would not carry the

loads (tr. 2/246). Staying_with the 35% double wall design required "an entire interior

. redesign" involving realignment of the vertical columns, shear columns and creation of.

a new joint system for the hollow core planks (tr. 7/191-92). PE had to add "a moment

frame and structural steel to the VQ" because they were not able to provide protection

from progressive collapse using the original wall design (tr. 2/142). Mr. Tengler

estimated that use of the structural brick would have saved $1,906,401 38 in construction ·

costs (tr. 4/98; R4, tab 3154 at 2).

87. By letter dated 6 February 2006 to CO Brown, Mr. Dukes, PE's senior

procurement manager (tr. 2/106), acknowledged CO Brown's direction to discontinue

development of the structural brick alternative. Mr. Dukes informed CO Brown that PE

38

The estimate is dated 6 October 2014 (R4, tab 3154).

45

considered this direction to be a constructive change and that as a result PE would incur

"additional design expense and the loss of performance time." (R4, tab 3926 at 2;

tr. 4/222-23)

Submission of TLF & VQ 65% Drawings and Specifications

88. PE submitted for approval its 65% drawings and specifications for the TLF

and VQ on 27 February 2006 (R4, tabs 8, 9). The drawings included 100% of the civil

and structural and at least 50% of the architectural, mechanical, and electrical design

(tr. 12/125; R4, tab 2 at 294, tab 3923).

27 March 2006 Limited NTP

· 89. On 27 March 2006, CO Brown issued a limited notice to proceed (LNTP)

for sedimentation and erosion control, stripping top soil, and cutting and filling the site

to proposed rough grades (R4, tab 623 at 3; tr. 8/24-25) .

. Approved ofSite Civil/Structural 100%/or Construction Drawings/or TLF & VQ

90. The Site Civil/Structural 100% for Construction Drawings for the TLF are dated

17 April 2006 (R4, tab 1750). These drawings include the fin~l design of the TLF

foundations (id., drawings S-101.a, b, S-501). The Site Civil/Structural 100% Drawings for

Construction for the VQ are dated 27 April 2006 (R4, tab 1751 ). These drawings include the

final design of the VQ foundations (id., drawings S-100, -lOOA, -101, -102, -501). 39

Modification No. 02

91. By letter dated 25 April 2006 to CO Brown, Mr. Dukes offered two

alternatives to resolving "the remaining contractual aspects of the impasse that has been

resolved in regards to the structural brick" (R4, tab 4504 at 2). PE was willing to accept

either a 120-day ext~nsion plus $100,000 or a six-month extension with no money (id.).

The letter includes, "To add greater detail to the understanding of this agreement,

Parsons is estimating the following impacts that have been absorbed to date and will

have to be absorbed with the execution of a contract modification under.the proposed

resolution modification" (id. at 2-3). PE listed "$100,000.00 in actual redesign

expenses," $500,000.00 in increased construction costs to follow the original 35%

design, and $700,000.00 "[i]n consideration for signing a release of claims for the

direction given on the design effort to date" (id. at 3). 40

39

We infer that these are the approved versions of the 100% civil drawings submitted

on 27 February 2006 (finding 88).

40

No testimony was presented by either party at the hearing to explain exactly the

meaning of this language in the letter.

46

92. Modification No. 02 (Mod. 2) to DO 13, dated 6 June 2006, extended the

period of performance by 126 days from 5 March 2007 to 9 July 2007. This accounted

for a 126-day delay associated with the structural brick discussion that occurred from

22 September 2005 to 25 January 2006. 41 Mod. 2 included the following release:

2. Release of Claims: In consideration of the modification

agreed to herein as complete equitable adjustment for any

delays or costs rising from varying design approaches,

in

including delays reviewing approaches, the contractor

hereby releases the government from any liability under this

contract for further equitable adjustments attributable to

such facts or circumstances giving rise to this contract

modification.

(R4, tab 7B at 2) CO Brown believes. the release includes what PE claims in this appeal

for the increase in cost of constructing the VQ to the Baker 35% design (tr. 12/18).

Mr. Temchin believes the release covered the four months of design costs associated

with its attempt to convince the AF to use the structural brick design, not the increases

in construction costs incurred later to incorporate resistance to progressive collapse in

the Baker double wall design (tr. 2/196).

93. CO Brown signed a Memo for Record, <;lated 12 June 2006, explaining

Mod. 2 (R4, tab 1514 at 8-9). After reciting some background, CO Brown concluded,

"The period of performance will be changed from 05 March 2007 to 09 July 2007 with

no increase to the total amount. The contractor agreed to the extension and agreed to

sign a release of claims for the additional time consideration." (Id. at 9)

LNTP - Underground Utilities

94. The AF issued an LNTP on 6 June 2006 for:

[W]ork affecting underground utilities and some related

items including but not limit[ ed] to the following: site storm

and sanitary sewerage, piping and structures, taps, and tie-

ins, site domestic water piping, taps, tie-ins including

metering and vaults, site telecommunication and data to

include any duct banks, below grade HTHW, metering and

vaults, taps, and tie-ins, high and low voltage electrical

underground.

41

Mr. Evans, PE's scheduling expert, started his 126-day delay on l3 July 2005 (R4,

tab 3290 at 6, item 1).

47

(R4, tab 3948 at 2) Mr. Temchin testified that this LNTP was equivalent to the "l June

2005 NTP civil site work package" (tr. 2/141). The civil site work is referred to as

"horizontal" work (tr. 1/129). The LNTP did not allow PE to start foundation work

(tr. 8/32-33).

PE Stop-Work Order/Concerns over Environmental Contamination

95. A coordination meeting between the government and PE was held on

27 June 2006. During the meeting, PE requested a "Certificate of Clean Site" for areas

where the AF had contracted for the demolition of two swimming pools and other

buildings. (Tr. 6/52, 54; R4, tab 56 at 4) The meeting notes state that the requested

documents did not exist (id.).

96. On 5 July 2006 PE's subcontractors Giberson Plumbing & Excavating, Inc.

· (Giberson) and S&C Construction, LLC (S&C) were setting up equipment to start work

on footings (ex. A-3 at 130). 42 On 7 July 2006 PE sent S&C a letter instructing it to

stop work on the TLF and VQ footings "at the point in time where you are starting to

pour concrete for the footings for these buildings" because of "questions about the

condition of the subsurface" (R4, tab 58; ex. A-3 at 134). The daily log for 7 July 2006

indicates that subcontractor S&C was working on footings at the VQ site and had to

stop work because it encountered "issues revolving around the soils and testing from

prior demo work" (R4, tab 3744 at 63-64).

97. By letter dated 14 July 2006 to CO Brown, Mr. Dukes informed the AF the.following:

Since the Air Force cannot provide any documentation as

to either the condition of the site prior to demolition, the

actual scope of demolition carried out, or the adherence of

the demolition contractor to the demolition statement of

work, we have to project based on what we understand

was done that the potential for asbestos pollution, mercury

contamination, and other forms of improper fill materials

(such as fluorescent light ballasts) may exist in the site.

(R4, tab 62 at 1) Mr. Temchin testified that at this time PE was very concerned with the

condition of the construction site (tr. 3/32).

42

Also on 5 July 2006, PE sent a letter to CO Brown complaining about the lack of an

unlimited NTP (R4, tab 3004 at 140). However, this letter doesn't square with

PE's subcontractor commencing foundation excavation on 5 July 2006.

48

Unlimited Notice to Proceed (NTP)

98. By letter dated 5 July 2006 to CO Brown, Mr. Dukes complained about the

· government's use of "limited" notices to proceed and that PE had not yet been given a NTP

for the foundations. Mr. Dukes estimated thatthis practice had delayed construction

"approximately 60 days" and he requested an unlimited NTP be issued. (R4, tab 3004

at 140-41; tr. 8/33-34) The AF issued an unlimited NTP on 10 July 2006 (R4, tab 3973

at 2). 43 PE started working on the complete project after this NTP (tr. 2/150).

PE's Concerns over Environmental Contaminatzon Resolved/JOO% Drawings

99. On 21 July 2006 PE sent S&C a letter lifting the stop-work order for

excavation at the TLF site (R4, tab 1558 at 43). The stop-work order for the VQ

· remained in effect. PE completed and received approval of the "100% for construction"

drawings for the TLF and VQ dated 24 July 2006. (R4, tabs 1754-55)

100. By early August 2006 PE had completed its review of various documents

provided by t~e AF concerning the demolition of houses and pools in the VQ areas. By

letter dated 4 August 2006, PE notified CO Brown that it had cpncluded that the VQ site

was environmentally "clean" and ready for construction (R4, tab 65 at 4-5). PE decided

to "immediately proceed with the geotechnical investigation of the in-situ conditions of

the backfill within these demolition sites" (id. at 1, 5). A total of 28 days of delay

occurred between 7 July 2006 when PE stopped work and 4 August 2006 when PE

lifted its stop-work order at the VQ. 44

First Cure Notice

101. On 9 August 2006 the government issued the first cure notice to PE (R4,

tab 3982 at 2; tr. 1/132). In this cure notice the AF cited PE's failure to develop a

project schedule, lack of cut and fill calculations, lack of sufficient labor, lack of

responsiveness relating to TLF subsurface .conditions, design deficiencies relating to

parking lot, failure to give notice of steel delays, and failure to provide pricing for the

changes to be incorporated into the design, i.e., the "shopping list" (R4, tab 3982 at 2).

The "shopping list'; was a list of out-of-scope items that the government wanted priced

so it could decide whether to purchase them or not (tr. 5/219-20, 12120-21). The

shopping list was·supposed to consist of "credits and debits" to be developed by PE so

that the cost of the contract would not increase (tr. 13/50, 14/234-35). The two major

· . items on the list were parking lot lighting and landscaping (tr. 5/220).

43

The letter was erroneously identified as a limited NTP, but PE understood it to be an

unlimited NTP (tr. 8/35). .

44

· Mr. Evans seems to combine the contaminated fill issue with the unsuitable fill issue in his

Delay Review Period 3 (R4, tab 3004 at 25-26). We consider them separately.

49

102. PE submitted its detailed response to the 9 August 2006 cure notice on

24 August 2006 (tr. 2/247; R4, tab 1499 at 13). By letter dated 10 October 2006 to

CO Brown, Mt. Dukes noted that the AF had not yet responded to PE's cure notice·

recovery plan and advised that not having a response "has the potential of causing an

adverse impact on the progress of the project" (R4, tab 4565 at 1).

Unsuitable Fill

103. PE hired PSI to do a test pit exploration of the TLFNQ footprint areas. PSI

excavated ten test pits on 16 and 17 August 2006 (R4, tab 796 at 2). Test pits 1, 2, and .3

were at the VQ where demolition had .occurred (tr. 6/238; R4,.tab 796 at 6). PSI reported its

results to PE by letter dated 27 September 2006 (R4, tab 796 at 1). The log for test pits 1, 2,

and 3 indicate that construction debris was found in pits 1 and 2 and "trace" debris in pit 3

(tr. 6/239-40; R4, tab 796 at 8-10). The "construction-type debris" found is shown in a

picture date stamped "08/l 7/2006" (tr. 3/9; R4, tab 4675 at 4).

104. By email dated 16 August 2006 to CO Brown, PE provided notice of a

differing site condition _after finding "wood, concrete rubble, metal, wire, charred debris

and other construction debris" that indicated that the previous demolition contractor did

not back fill with clean fill (R4, tab 68). The topic of the construction debris was

discussed during a meeting on 22 August 2006. PE was to remove the unsuitable

material and CO Brown stated MAFB was responsible for paying for the work. (R4,

tab 3058 at 3) Also on 22 August 2006, PE emailed S&C a stop-work order for

foundation work at the VQ due to concerns over subsurface conditions45 (R4, tab 69).

This order did not affect the work at the TLF. Mr. Shockley testified that the unsuitable

fill issue applied to the VQ only (tr. 6/117).

105. In a 14 September 2006 internal email, CO Brown acknowledged

"probably unforeseen site conditions that can cost the government to remediate some of

the soil" but that she did not have funding to enable her to direct PE to do the work (R4,

tab 4403 at 1). By 2 November 2006 CO Brown had funding and issued a NTP for

disposal of the unsuitable material and backfilling, but she imposed a not-to-exceed

(NTE) amount of$70,000 (tr. 12/151, 221-22, 277; R4, tab 4447). A total of72 days of

45

Mr. Evans seems to misconstrue the "contaminated soil" delay and the "unsuitable fill"

delay. He writes, "On August 21, 2006, Parsons issued a Stop Work Order for the

VQ and marks the end of the delay for unsuitable fill and starts the new delay for

the organic layer" (R4, tab 3004 at 28). -As we· read the record, 4 August 2006

marks the end of the contaminated soil delay (R4, tab 65 at 4-5) and 21 August

2006 marks the beginning of the unsuitable fill delay. ·

50

delay occurred between 22 August 2006 when PE stopped work at the VQ and 6 August

2006 when CO Brown issued the NTP to remove the unsuitable fill. 46

106. On 15 November 2006 the 27 September 2006 PSI report was emailed to

CO Brown (R4, tab 846 at 47). On 16 November 2006 the PSI report was forwarded to

Mr. Williams, who wrote in a 29 November 2006 email to CO Brown the following:

I am also disappointed it took so long for this report to reach

us. However, ifl interpret the report correctly, I don't

understand how the contractor that demolished the existing

facilities was allowed to leave so much large construction

debris on site and cover it with a shallow layer of dirt. Six

of the ten tests contained construction· debris and one of

those had the "green" soil. Two additional test sites

contained the "green" soil. Only two of the tests seem to be

Ok.

Yes, this report is disturbing

(R4, tab 3999 at 1-2)

Organic Layer/"Transite" Asbestos Pipe

107. By email dated 23 August 2006 to CO Brown, PE stated that on 22 August

20·06 PSI found "organic material" in two of the test pits they had dug that day at the VQ

. site (R4, tab 3988). PE also stated, "Based on this discovery, we will not be placing

concrete or excavating on the VQ side this week" (id.). PE had PSI take small diameter

borings to map out the organic layer under VQ wing A (tr. 3/18; R4, tab 4675 at 13). PE

also had PSI do some large diameter borings (tr. 3/19-20). PSI identified the location of

the organic layer overlaid on the VQ footprint with the black "crosshatched" area on slide

13 in a 18 December 2014 PowerPoint presentation (tr. 3/20-21; R4, tab 4675 at 13). Slide

15 shows a picture of what the material in the organic layer looks like (tr. 3/22; R4,

tab 4675 at 15). Slide 16 shows a tree trunk and organic layer material encountered during

excavation (tr. 3/23; R4, tab 4675 at 16). The material PE uncovered could not be

characterized as "trace" organic material (tr. 3/24-25)}7

108. By letter dated 19 October 2006 to Mr. Dukes, PSI reported the results of

its settlement investigation at the VQ due to "organic laden stratum," i.e., organic layer.

P~I recommended that the organic layer be removed in the northwest comer of VQ

46

We need not determine how long it took to remove and replace the unsuitable fill

because this delay was concurrent with the organic layer/asbestos pipe delay

discussed bel?w. For our purposes it is the 22 August 2006 stop-work date that

is important.

47

The original RFP 8234 boring logs identified "trace" organic material (R4, tab 2 at 825).

51

wing A. (Tr. 3/25-26, 125-26; R4, tab 74) The PSI report was provided to the AF, but

the AF did not respond (tr. 3/26-28, 127).

109. Mr. Temchin testified that the organic layer material is "made up of grasses

and other materials that will decompose over time and create voids or cavities in the

substrata under the building if it were left under the building" (tr. 3/18-19). The organic

layer was at a depth of about twelve feet and the building's footing was seven feet, so the

organic layer was five feet below the footing and that was "significant to our structural

· engineers" (tr. 3/126). PE determined that the organic layer needed to be removed because

of differential settlement to insure long-term stability of the foundation (tr. 3/50).

110. By email dated 3 November 2006 to CO Brown, Mr. Thomas, PE's vice

president and project manager, notified CO Brown that, while excavating to remove the

organic layer, PE encountered another differing site condition in the form of "old pipe with

asbestos insulation" 48 and "immediately stopped work" and notified Mr. Rola (tr. 2/103,

3/131-32; R4, tab 81 at 1). The email was followed up by a 7 November 2006 letter to

CO Brown notifying the AF of the differing site condition (R4, tab 841). Asbestos removal

was not within the scope of PE's Gontract(tr. 7/43-44, 5/235-36; R4, tab 838).

111. Meanwhile, Mr. Rola told PE that the organic layer did not need to be removed

(tr. 3/127, 6/245-46). Mr. Temchin testified that Mr. Rola's position was "totally ridiculous"

(tr. 6/246). In her 9 November 2006 email to Mr. Rola and others, CO Brown expressed her

opinion that PE was entitled to rely on PSI's recommendation to remove the layer:

If they [PE] trusted us and built on the site and the building

had structural cracks in the foundation later because of

48

Mr. Temchin testified that the asbestos insulated pipe was "transite" pipe that is a clay

pipe with asbestos in it. It was also identified as "transite" in a 22 February 2007

meeting (R4, tab 3067 at 3). There is some confusion over whether the pipe was

shown on drawings given to PE. The AF provided PE with drawings of active

utilities. However, the AF had drawings that showed abandoned utilities that the AF

did not provide to PE. (Tr. 3/56-57, 5/242-43) Mr. Temchin testified that the

transite pipe was not shown on any of the draw~ngs provided to PE (tr. 3/131-32).

However, there is also evidence that this pipe was shown on the 35% drawings.

There is existing HTHW pipe that is to be removed shown on drawing C-103 (R4,

tab 1746, sheet 5). We resolve this confusion based on PE's reply brief where it

admits that the drawings showed the HTHW pipe to be removed, "In PFFs 728-729,

the AF points out that PE should have planned to remove the old HTHW line, and

that point is undisputed" (app. reply br. at 109). We infer that PE's point is that

ev.en if the HTHW pipe was disclosed on the drawings, the fact that it was "transite"

insulated with asbestos was not. Therefore, we find that the differing site condition

is not the old HTHW pipe but the fact that it was "transite" pipe insulated with

asbestos.

52

settling from the organic layer, what do you thirik the

chances are that the government would step up and say

"that's okay, we told them it was okay to build on." Heck·

no! We would go after them with a vengeance.

(Tr. 12/151; R4, tab 4296 at 3) By email dated 22 November 2006 to Mr. Thomas, PE,

-Mr. Rola requested "complete calculations of the Settlement Analysis" and asked

various questions about why the organic soil should be removed (R4, tab 855 at 1).

112. Apparently PE was able to continue removal of the organic layer in locations

unaffected by the asbestos pipe because by letter dated 29 November 2006 to PE, PSI

reported that backfill in the area where the organic layer had been removed was

accomplished on 10 and 11 November 2006. PSI conducted field compaction tests and

verified the compaction requirements of 95% were met. However, PSI determined that

the backfill had been placed in "about 12 inch" lifts that exceeded the lift thickness

required by the contract. (R4, tab 79 at 1) The contract required that backfill be pl~ced

in 6-'inch layers (lifts) (R4, tab 16 at 104). Apparently the backfill associated with the

organic layer excavation was placed in thicker layers (lifts) (R4, tab 1573 at 39).

Mr. Temchin agreed that PE's subcontractor did not comply with the 6-inch lift

requirement 49 (tr. 5/230). ·

113. Meanwhile, Mr. Rola took the position that the asbestos insulated pipe was

not a differing site condition (R4, tab 4298 at 1-2). In four emails, dated 30 November

2006, between Mr. Rola and CO Brown, the CO disagreed:

[Rola to Brown 9:36 AM] The.Base cannot justify Parsons'

claim of a differing site condition. Please see attached.

[Brown to Rola 11 :07 AM] If we did not identify asbestos

as being applicable to this site, then IAW FAR 52.236-

2(a)(2), this is a differing site condition and was not

anticipated in our "clean site."

[Rola to Brown 1:20 PM] Did you receive this attachment?

Our position is well supported in Construction Claims

Monthly (January 1995 issue).

[Brown to Rola 2:59 PM] Yes, but I will reiterate that you

have a cancer-causing agent in- the site and it requires

remediation. You did not identify asbestos on the project.

49

Mr. Temchin's testimony was in response to a question that PE's subcontractor

backfilled in 12-inch lifts rather than 8-inch lifts (tr. 5/230).

53

They did not therefore identify the costs for remediation in

the proposal. We will LOSE this if they submit a claim.

(R4, tab 4298 at 1-2)

114. By email dated 1 December 2006, Mr. Dukes sent PSI's settlement

calculations to Mr. Thomas and Mr. Temchin (R4, tab 862). On the top of the email is a

handwritten note by Mr. Rola, "2/23/07 Provided by Myron Terrichin" (id. at 1;

tr. 13/197). In September 2014, Mr. Rola wrote a summary of his 2006 evaluation of

PSI's organic soils calculations wherein he disagreed with PSI's recommendation to

remove organic soil (tr. 13/190, 193_-94; R4, tab 1452). Another technical analysis

dated 9 September 2014 from Versar, hired for purposes of the claim defense, agreed·

with Mr. Rola's _opinion that the organic layer did not have to be removed (tr. 13/215;

R4, tab 962).

115. Mr. Temchin testified that PE had the risk associated with settlement and as

design-build contractor should have the right to decide how to construct the building

(tf.7/39, 44). Since PE was the engineer of record, it decided to remove the organic

layer without AF approval {tr. 3/127-28).

116. By letter dated 18 December 2006 to PE, CO Brown requested more

information supporting PE's position that the organic layer should be removed (R4,

tab 254). By email dated 31 January 2007 to PE, Mr. Rola continued to take the

position that the organic layer did not need removal and that PE would remove it at its

own risk (tr. 3/50, 7/36; R4, tab 4018 at 1).

117. Concerning the nonconforming backfill, by_ letter dated 18 December 2006

CO Brown notified PE that its backfiUwas not placed in 6-inch layers and directed PE to

provide adcHtional testing to show that proper compaction was achieved (R4, tab 878).

Mr. Temchin testified that the AF "wanted" PE to remove the backfill and install it in

6-inch lifts (tr. 5/231). The AF does not agree that it ordered the removal of the

noncompliant backfill, but instead asked PE to conduct additional testing to prove the

compaction was correct (gov't br. at 159-60).

118. As of21 December 2006 the AF had not authorized the removal and

remediation of the "transite" asbestos pipe:

Final Update and Result 12/21: 1) Asbestos Removal-

Parsons preparing T&M ROM/or review and acceptance

by the Government-NOTE: Area A of the VQ site remains

at a standstill.

54

(R4, tab 3058 at 3) PE submitted its rough order of magnitude (ROM) estimate on

28 December 2006 however Mr. Rola continued to argue that the asbestos pipe was not

a differing site condition (R4, tab 4391 at 1-2). CO Brown continued to disagree:

We had discussed it with our legal gurus and cannot concur.

If we. the government, had not emphatically and repeatedly

told the contractor that it was a clean site, your argument

would have merit. However, because we, the government.

did, we have a differing site condition.

(Id. at 1)

119. After verifying that the pipe· contained asbestos, the AF issued an NTP on

28 December 2006 for the remediation of the asbestos pipe with a not-to-exceed amount

of $27,000 (tr. 3/135; R4, tab 85 at 1). The pipe is shown in pictures in the record

(tr. 3/30-31; R4, tabs 83, 4675 at 26). PE hired Horizon Environmental Group to

perform the asbestos abatement which was completed between 25 January 2007 and

1 February 2007 (R4, tab 1533 at 19, tab 3067 at 2, item 22.2). The delay associated

with the asbestos is 90 days, 3 November 2006 to 1 February 2007, which was

concurrent with the delay for the organic layer. After remediation of the asbestos

insulated pipe, PE was able to restart removal of the organic layer material and then.

move forward with the footings (R4, tab 3067 at 3). Mr·. Evans' as-built schedule

indicates that "Removal & Replace Remaining Organic Layer" ended on 28 February

2007 (R4, tab 3004 at 29).

120. Concerning the fill placed in nonconforming lifts, ·PE removed and replaced it in

conforming lifts and compaction. According to daily reports the work starting on 2 January

2007 was sporadic due to winter weather. The work occurred between 2 to 4 January 2007,

17 to 19 January 2007 and 26 to 28 February 2007 for nine days of work. (Ex. A-4 at 1-6,

26""29, 86-90)

121. Mr. Temchin testified that the three differing site conditions identified as

· "unsuitable fill," "organic layer," and "asbestos pipe" prevented PE from starting work on VQ

Wing A foundation (tr. 2/178-80). Notes from a 22 February 2007 Contracting-Contractor

Coordination meeting, that Mr. Temchin attended, contain a chronology of the asbestos pipe

and organic layer work at note 22.2 (tr. 7/165-68; R4, tab 3067 at 2). Based on our review of

the record we find Mr. Evans' as-built timeline for the organic layer and asbestos pipe delays

to be credible (R4, tab 3004 at 29). The total delay was from 21 August 2006 to'28 February

2007 or 191 days (id.). From this we subtract the 9 days taken by PE to remove and replace

the fill that was improperly installed in lifts exceeding 6 inches, resulting in a delay of 182.

days. We do not accept Mr. Evans' conclusion that the "unsuitable fill" delay occurred before

the organic layer delay because they were both discovered on or about 21 August 2006 (R4,

tabs 69, 3988). The unsuitable fill delay ran concurrently with the organic layer/asbestos pipe

55

delay. Therefore, the total delay caused by the unsuitable fill, organic layer and asbestos pipe

was 182 days. 50

AF Considers Termination/PE Accelerates Performance

122. The record includes minutes of a 7 March 2007 meeting to discuss

termination (tr. 12/50-51 ). The PowerPoint presentation used during the meeting was

prepared by PE (tr. 12/53). Slide #4 "Impacts to Our Project" listed:

• Subsurface Conditions

• Unsuitable Fill - Completed

• Organic Layer - Completed

• Asbestos Pipe - Completed

• Hollow Core Plank Issue - Active Correction

• Unusually Severe Weather- Over (hopefully)

• Water Pipeline Relocation - Completed

Acceleration to Recover

(R4, tab 937 at 4) The hollow core plank issue was that PE ordered planks that were too

short (tr. 12/54). Slide #5 "Reasons for Acceleration" listed:

• Impacts

Unsuitable Fill, Organic Layer, and Asbestos Impacts

Schedule to 21 March 2008 Project Completion

Hollow Core Plank (Parsons Delay) Reduces Impacts

. to 22 Febru~ry 2008 Completion

Parso1,1s Is Accelerating Our Operations

• Additional Resources

• 6 Day Week Accelerated Work

• Acceleration of Schedule Lcigic

· (R4, tab 937 at 5) CO Brown recalled that PE was going to accelerate work to meet the

27 December 2007 completion· date, to be established in Modification No. 03, and the

AF decided not to terminate (tr: 12/51:-52, 56).

50

The AF's scheduling expert, Mr. Ockman, believes that tli.e construction debris,

organic layer and asbestos pipe were differing site conditions, but that PE is not

entitled to any time extension (tr. 18/61 ). We reject this position.

56

Modification No. 03 (Mod. 3)

123. Leading up to Mod. 3, by letter dated 13 December 2006 to CO Brown, PE

agreed to "pay 171 days of value equivalent to the liquidated damages rate ($134 7/day

times 171 = $230,337) as consideration for the revised contractual completion date of

27 Dec 07'' (R4, tab 4007 at 2). PE made. it clear that it intended to "seek recovery of

this payment" because it believed REAs it intended to submit would "account for and

absorb most, if not all, of these 171 days" (id.). ·By letter dated 8 March 2007 to

CO Brown, PE listed seven claims (REAs) that were to be excluded from a release PE

. agreed to sign in upcoming Mod. 3:

1. [T]he proposal for unsuitable fills submitted 7 Mar 2007,

2. the proposal for the organic layer submitted 7 Mar 2007,

3. the proposal for the remydiation of the asbestos pipe

submitted 7 Mar 2007, '

4. any condition rell:l.ted to unusually severe weather during

the time period 1 Noy 2006 to 1 Mar 2007,

5. any conditions related to delays in issuance of the notice

to proceeds during the design stage of the project,·.

6. any conditions relating to the delays resulting from the

Air Force failure to promptly process submittal requests

within agreed to time frames,

7. any conditions relating to delays as a result of the

submittal approval process for the roofing requirements

of this project.

(R4, tab 3004 at 134)

124. Bilateral Mod. 3, dated 20 March 2007, was signed by Mr. Radin (R4, tab 7C

at 1). Mod. 3 extended the period of performance of DO 13 by 171 days from 9 July·2007

to 27 December 2007 and decreased the total contract amount by $230,337 (R4, tab 7C

at 2). This accounted for the 171-day delay in starting horizontal work (foundations 83

days) and unsuitable fill (88 days) that occurred from 18 April 2006 to 9 October 2006 ,

(tr. 7/214, 233-34; R4, tab 3004 at 134-38). Mr. Radin testified that a time extension was

needed for the unsuitable fill, organic layer and asbestos pipe differing site conditions that ·

, was causing PE delay (tr. 1/130, 132-33). Mod. 3 included a qualified release:

6. In consideration of the modification agreed to herein

as complete equitable adjustments for the extended

period of performance, the contractor hereby releases the

government from any and all liability under this

cont[r]act for further equitable adjustments attributable to

such factors or circumstances giving rise to this contract

57

modification (except for the items listed on Parsons letter

dated 8 Mar 07, Subject: Release of Claims Wording,

Modification 03, McGuire TLFNQ, FA8903-04-D-

8703-0013 (version 3)).

(R4, tab 7C at 4) PE putthe limiting language in the release to preserve its rights to

submit a claim for the $230,337 in order to recover it in the future (tr. 1/105, 132, 134,

7/214, 233-34; R4, tab 4007 at 2). PE agreed to Mod. 3 to resolve the August cure

notice (tr. 1/133-35). The 9 August 2006 cure notice was closed on 20 March 2007, the

_date of Mod. 3 (R4, tab 4028 at 7; tr. 1/136).

24 May 2007 Partnering Meeting/VQ Truss Delay

125. On 24 May 2007 the parties held a partnering meeting to discuss the status

of the project. The record includes minutes from the meeting (tr. 12/61; R4, tab 983),

and slides that were used during the meeting (tr. 12/60; R4, tab 9,84). The minutes

stated that, "based on a worst case scenario" there appeared to be a five-week delay in

the completion date of the VQ and the "[m]ain reason for the slip in completion date on-

the VQ is truss delivery" (R4, tab 983 at 2). However, the slides indicate a twelve

workday delay in the completion of the VQ (R4, tab 984 at 21). The truss problem was

caused by a redesign from the 35% to the 100% design that caused a conflict be.tween

the truss shop drawings and the elevator shop drawings and the trusses could not be

ordered until the design issues \Vere corrected and shop drawings accepted (id. at 3).

CO Brown recalled that during the meeting PE acknowledged that the truss problem

was PE's-responsibility (tr. 12/63).

Second Cure Notice

. .

126. On 31 May 2007 the government issued Cure Notice Number Two for the

following deficiencies:

(a) Failure to provide a proposal as outlined in the Request

. for Proposal (RFP), dated l Nov 06 for Shopping List

Items

(b) Delays in the schedule

(C) Failure to ensure timely delivery of the steel trusses for

the VQ in a timely matter

(R4, tab 4039 at 2; tr. 1/138) The government issued the cure notice to PE "because we

couldn't get any reaction out of Parsons" on pricing the shopping list items (tr. 13/51-54).

Assembling the quotes for the shopping list was a lot of work and Mr. Radin felt that the

use of a c·ure notice for the shopp~ng list was a "very big misuse of the cure notice" ·

(tr. 1/139-41 ). PE responded on 29 June 2007 stating that it had submitted updated pricing

58

for the "shopping list" on 19 June 2007 51 , accelerated the schedule by adding five

management staff and that the trusses had arrived on site (R4, tab 1499 at 631 ).

High Temperature Hot Water (HTHW) Differing Site Conditions

127. The VQ 35% design drawing include drawing C-101 Existing Condition Plan

and C-103 Utilities Demolition Plan, however, these drawings do not extend to East

Arnold Avenue, a road west of the VQ site (R4, tab 1746, drawings C-101, -103). The

24 July 2006 100% VQ "for construction" drawing package, drawing C-10:4, General

Site Layout Plan, depicts the TLF and VQ adjacent to but on opposite sides of

Mitchell Road. On the drawing, the TLF is "above" (north) and the VQ is "below"

(south) Mitchell Road. (R4, tab 1755, drawing C-104) East Arnold Avenue is below the

VQ on C-107. Drawing C-107, Site Utility Plan, shows the "proposed" new HTHW52

line running from manhole #35 just below East Arnold Avenue up through manhole #35A

to a new manhole where the HTHW line divides going right to the VQ and further north

and under Mitchell Road to the TLF. (Id., drawing C-107}-

128. The 100% VQ drawings include four drawings that provide information on

utilities: drawings C-101, Overall Existing Conditions Plan; C-102," Overall Existing

Conditions Plan; C-103, Demolition Plan; and C-107, Site Utility Plan 53 (R4, tab 1755,

drawings C-101, -102, -103). These drawings all have the following note:

UNDERGROUND UTILITIES SHOWN HEREON WERE

FIELD LOCATED BY MASTER LOCATORS, INC.

BETWEEN 08/23/05 & 08/3 l/05.E54J THE CONTRACTOR

SHALL'PHYSICALL Y VERIFY ALL LOCATIONS AND

ELEVATIONS OF EXISTING UTILITIES PRIOR TO

STARTING CONSTRUCTION.

(Id.) Mr. Temchin testified that in his experience this note required PE to verify the

utilities shown on the drawing, but does not obligate PE to locate every other utility on

the site that is not indicated on the drawing (tr. 3/63).

51

Parson's proposal for the shopping list is actually dated 20 June 2007 (R4, tab 1013

at 1; tr. 1/208). The most costly item is the additional site lighting at $593,698

(R4, tab 1013 at 5). .

52

The HTHW system was a loop that provided·hot water to heat buildings on MAFB

(tr. 3/144).

53

There is no drawin·g C-107 in the 35% drawing package.

54

While the parties referenced this note (gov't br. at 176; app. reply br. at 136), neither

party included evidence explaining who hired Master Locators or the work

performed between 23 August and 31 August 2005 which was after award of DO

13 on 13 July 2005.

59

129. The 100% VQ drawing C-107 included the following note:

UTILITY LOCATIONS AND INVERTS ARE BASED

UPON FIELD SURVEY AND BEST AVAILABLE

DATA. THE CONTRACTOR IS TO VERIFY ALL

UTILITY LOCATIONS AND INVERTS PRIOR TO

CONSTRUCTION. IF ANY DISCREPANCIES ARE

FOUND THE CONTRACTOR IS TO CONTACT THE

DESIGN ENGINEER IMMEDIATELY.

(R4, tab 1755, drawing C-107)

130. Before PE could start digging it had to get a dig permit from the base

(tr. 3/159). The dig permit provides that all utilities be marked by the base. Various

"shops" from the base came out and marked utilities using different color paint indicating ·

the type of utility but they were unable to detect everything. (Tr. 3/64, 159-60, 6/81-82,

18/296-97)

131. PE' s subcontractor began installing the HTHW line to the VQ on 24 July

2007 (R4, tab 1574 at 93). Mr. Burdick, PE "tiger team" member, was assigned to

manage installation of the new HTHW system (tr. 3/138, 141-43). PE took pictures of

obstructions encountered during installation of the new HTHW line that it considered

differing site conditions. The pictures are identified numerically and some are date~:

• DC #1: Picture dated 11/24/2007. "Existing HTHW Expansion Loop" encased

in concrete not shown on drawingsl55 l or marked out. (R4, tab 153 8 at 74, tab 21

at 38; tr. 3/146-47, 158-59, 184-85)

• DC #2: No date. "Two Chilled Water Lines 30' Away From Design Drawing

Location." (R4, tab 1538 at 75, tab 21 at 38; tr. 3/161-62)

• Dc'#3: Picture dated 11/24/2007. "20" Storm Drain Not Shown On Design

Drawing." (R4, tab 1538 at 76, tab 21 at 38; tr. 3/165-67) ·

• DC #4: Picture dated 11/24/2007. "Ruptured Terra-Cotta Sewer Line Running

North To South" not shown on drawing or marked out. (R4, tab 1538 at 77,

tab 21 at 38-39; tr. 3/167-69, 187)

• DC #5: Picture not dated. "Two Metal 1 Inch Diameter Conduits Thought To

Be Parking Lot Power Feeds Not Shown On Design Drawings.'' (R4, tab 1538 at

78, tab 21 at39; tr. 3/169-72)

• DC #6: Picture not dated. "20" Inch Storm Drain On The South Side Of The

Excavation Beyond The Sanitary Sewer Line." (R4, tab 1538 at 79, tab 21 at 39;

tr. 3/174-75)

• DC #7: Condition removed (R4, tab 21 at 39). ·

55

At a later date the base produced a drawing that showed this feature (tr. 3/186).

60

• DC #8: Picture dated 12/01/2007. "24 Inch Storm Drain Beyond The Road

Crossing." (R4, tab 1538 at 80, tab 21 at 39; tr. 3/175)

• DC #9: Picture dated 12/01/2007. "Rerouting Of The HTHW To Meet The New

Manhole 358 Location" because manhole #35 was not big enough to connect

new HTHW line.· (R4, tab 1538 at 81, tab 21 at39, tab 3015 at 190-91;

tr. 3/147-49, 176-77, 6/80-82)

• DC #10: Picture dated 11/30/2007. "Temporary Removal And Replacement Of

Sign At Community Center" caused by DC #1. (R4, tab 1538 at 82, tab 21 at 40;

tt. 3/179-80)

• DC #11: Picture dated 12/03/2007. "HTHW Loop Just Beyond Arnold Road

Crossing."[561 (R4, tab 1538 at 83, tab 21 at 40;tr. 3/181) '

According to PE, these differing site conditions caused additional time and costs for

hand digging, ~dditional HTHW pipe, additional welding, additional backpoe time, and

rerouting HTHW lines (tr. 3/182-83 ). PE planned to connect to the existing HTHW

system in manhole #35, however, with the existing piping in the manhole it was not big

enough and PE had to reroute the HTHW line, DC #9 above, and install a new manhole

#358 (tr. 3/147-50, 6/80-82; R4, tab 3015 at 190-91). The new manhole #358 was

adjacent to #35 (tr. 3/150). On cross-examination, however, Mr. Burdick agreed that if

one looked in manhole #35 it was immediately apparent there was not enough room to

make the new HTHW connection (tr. 3/203; R4, tab 3015 at 190-91).

132. PE marked the locations of these numbered pictures on a copy of 100% VQ

drawing C-107 (tr. 3/181-82; R4, tab 1538 at 73 57 ) and they were annotated during the

trial in red ink on drawing C-107 (R4, tab 1755 at C-107). We compared the locations

of the pictures with the utilities shown on C-107. There are no utilities shown on C-107

crossing the HTHW line for pictures #1, #4, #5 and #6. Pictures #2, #3,:and #.10 are in

the vicinity where the HTHW line crosses telephone and storm sewer lines. Pictures #2

and # 10 do not involve telephone lines or the storm sewer. Picture #8 is in the vicinity

of where the HTHW line crosses a water line but picture #8 shows a storm sewer.

Picture #9 shows the existing HTHW line at manhole #3 5 where the new HTHW line

had to be rerouted to the new manhole. Picture # 11 shows a concrete encased

abandoned HTHW line not shown on C-107.

· 133. We discuss picture #3 separately. In its brief, PE identifies the utilities

shown in picture #3 as two chilled water lines, a 20"storm drain, and phone and

communication conduit lines (app. br. at 207-08). PE argues that all it had was the

· Baker 35% drawings and the base colored .utility markings to go by and they do not

show the utilities shown in picture #3 (id. at 208-09). PE is correct that the 35% YQ

drawings do not show what is seen in picture #3 because those drawings do not extend

56

After the expansion loop was discovered the base located a drawing indicating it was

an active HTHW line (tr. 3/189).

57

This is incorrectly identified in the transcript at page 76 (tr. 3/181-82).

61

. down to East Arnold Avenue (R4, t~b 1746, drawings C-101 to -103). But we rely on

the 100% for construction drawings, not the 35% drawings. Looking closely at VQ

100% drawing C-107 in the vicinity of picture #3 we see lines marked "ST" and "T"

crossing the path of the new·HTHW line (R4, tab 1755 at sheet 9). Drawing C-107's

legend i

This text is long and has been trimmed here. Open the source document for the complete record.