# Tyger Construction Co. v. United States

> United States Court of Federal Claims · February 18, 1994 · 39 Cont. Cas. Fed. 76,627

URL: https://www.frixlaw.com/law-library/cases/6644928

## Case

- **Full name:** TYGER CONSTRUCTION CO. INC. v. United States
- **Court:** United States Court of Federal Claims
- **Decided:** February 18, 1994
- **Citations:** 39 Cont. Cas. Fed. 76,627; 31 Fed. Cl. 177; 1994 U.S. Claims LEXIS 236; 1994 WL 209855
- **Precedential status:** Published
- **Opinion:** Opinion of the court by Nettesheim
- **Judges:** Nettesheim
- **Cited by:** 9 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6644928

## How later opinions describe it (automated extraction)

- holding both parties responsible for contract work delay after 1994 trial over disputes arising from 1983-86

## Opinion text

OPINION
NETTESHEIM, Judge.
This case is before the court after trial. The claims that were tried involved the mechanical portion of a construction contract between Tyger Construction Co., Inc. (“plaintiff’), and the Food and Drug Administration (the “FDA”), an agency of the United States Department of Health and Human Services (“DHHS”), for an Animal Testing *181 Facility in Beltsville, Maryland. 1 Plaintiff was the prime contractor in the project and seeks recovery on behalf of itself and one of its subcontractors. In reviewing the testimony and documentary and physical evidence, the court deems that the true picture of this beknighted contractual relationship emerges through a chronological history, with principal reliance on documents contemporaneously generated. Rarely is a fact-intensive construction contract case tried so long after the operative events took place. The challenged specifications issued in 1983; the disputed work was performed in 1984-1986; the key problem was not solved until 1989; the contract was completed in 1991. 2 In these circumstances the court reposes a great deal of confidence in the documentary record.
The bedrock issue is whether one contracting party — the FDA, on the one hand, or the prime and its mechanical subcontractor, on the other — bears the ultimate responsibility for this contentious, frustrating, counterproductive, and exorbitantly costly construction project.
FACTS
1. The solicitation and bids
The DHHS issued the Invitation for Bid documentation, Solicitation No. IFB-131-0003-83, on March 15,1983. From the onset of bidding on the subject contract, the bid documents included one set of original specifications, one set of original drawings, and a series of amendments to those original documents. Only amendments pertinent to the present controversy will be discussed. On April 15, 1983, Contracting Officer Calvin E. Watkins, Sr., issued Amendment No. 2 that modified a Constant Volume Regulator (“CVR”) dimension shown in Drawing M-71. Two weeks later on April 29, 1983, Amendment No. 4 issued, changing the bid opening date from May 4, 1983, to May 12, 1983. Then, on May 4, 1983, Amendment No. 5 issued, shifting the bid opening date to May 24, 1983.
Approximately one week later, on May 13, 1983, Contracting Officer Watkins issued Amendment No. 6. Amendment No. 6 consisted of 57 pages, including sketches. Clause 6, entitled “Supervision and Coordination of the Work,” from the “General Conditions” section, was revised. The substitution set forth the following: “The plans and specifications are, in part, [diagrammatic] and show the general arrangement of the work. In such cases, the Contractor, directly or by subcontract, shall complete the design and select and arrange equipment, materials, or components as necessary to provide a complete facility.”
Amendment No. 6 modified section 15920 of the original contract to give the contractor responsibility for installing a fully functional, tested, and wholly compliant Air Flow Control System. Paragraph 1.02D set forth that differential pressure transmitters (“DPT”) could be of only one original equipment manufacturer (“OEM”) industrial instrument manufacturer' system source and that any product mix would not be permitted. The same paragraph provided that all of the integral system interaction and individual instrument performance must be as specified and in accordance with all manufacturer requirements. Further, the contractor was required to furnish certification from the manufacturer that the installation of equipment was in accordance with the manufacturer’s requirements. A new paragraph, 1í 1.02F, added the requirement that the airflow system work must be performed by a specialty subcontractor. General Conditions Clause 20 defined specialty subcontractor as a “subcontractor regularly engaged in the manufacture or installation of the contract items.” The clause further specified:
The specialty subcontractor shall select and combine the materials involved, maintain and have available ... workmen skilled in the specified work. The Special *182 ty Subcontractor shall be the manufacturer, be licensed by the manufacturer as an installer, or work under direct supervision of the manufacturer.
Another portion of Amendment No. 6 modified H 2.02 entitled “Control Instruments and Indicators.” Paragraph 2.02A was amended to permit the contracting officer to request that the contractor supply certain specified testing information from the OEM related to verification of performance requirements. The failure of the OEM to provide such corroborating data would be grounds for rejecting the equipment. The original title of H2.03 was changed from “Process Air Volume Pitot Primary Element” to “Air Flow [sic] Measuring Station (AFM)” (“AMS”), and the first line of 112.03A was amended accordingly. The original If 2.03G was substituted to require coordination with section 15800 for the installation of the AMS into the ductwork. Paragraph 2.04 entitled Constant Volume Regulator was substantially amended. These amendments will be discussed in detail below.
Paragraph 3.01 entitled “Installation, System Calibration, Start-up and Service” was also amended to require that the contractor provide calibration and testing services to guarantee the proper operation of the system for one year following the contracting officer’s acceptance. The contractor also was tasked with furnishing evidence that successful supervision, calibration, and start-up services had been provided for similar type projects over a two-year period. A further amendment required that project names and references be provided for the approval of qualifications by the contracting officer.
Finally, Amendment No. 6 contained several general comments that applied to the specifications as a whole. One comment put potential bidders on notice that nothing in the specifications could be construed to create any contractual relationship between the FDA and any of the subcontractors. Pursuant to this comment, contractors were informed that they must employ specialty subcontractors where required in the specifications at no additional expense to the FDA: (The contract work at issue was performed by a specialty subcontractor.) Another comment sought reinforcement of these requirements by holding the contractor responsible for the manufacturer’s performance, including testing and verification, of all specification requirements.
A third general comment notified bidders that all items specified in the contract were to be furnished by the contractor and not the FDA. A last general comment substituted the contracting officer for any references to any authority of the FDA under the contract granted to any entity other than the contracting officer.
John J. Kirlin, Inc., plaintiffs mechanical subcontractor, received bids for airflow instrumentation from three CVR manufacturers — Ultratech Inc.; Brandt Instruments, Inc. (“Brandt”); and Air Monitor Corp. (“Air Monitor”). Ultratech’s bid was $2,244,500.00. After accepting Ultrateeh’s bid, Ultratech and Kirlin negotiated a purchase order for $1,275,950.00. Ultratech was a specialty subcontractor on the project.
A February 22, 1983 pre-bid letter from the Director of Regional Office for Facilities Engineering and Construction (Contracting Officer Watkins) to the Project Officer, Stephen J. Lakner, evidences coordination problems from the outset. Plaintiff asserts that, despite these problems, DHSS issued the bid documents. Mr. Watkins stated that he was of the view, after a limited review of the bid documents, that the plans and specifications still lacked specific and coordinated detail, even though he had examined them in response to an earlier comment of the same nature. The prior comment had been related by the FDA’s design engineer, LBC & W, a Division of C.E. Maguire, Inc. (“LBC & W” or the “design engineer”). 3 Mr. Watkins further stated that this project would likely require a greater number of interpretations, clarifications, and changes than would normally be expected for a project of the same nature and size.
*183 On February 23, 1983, Mr. Lakner dispatched a letter to Vincent A. Megna, P.E., Director of Engineering at LBC & W, informing him that the final design documents were accepted. He noted that the FDA was not responsible for checking or coordinating the design documents and indicated that the FDA expected the drawings and specifications to be reasonably free of errors and contradictions. Mr. Lakner also suggested that the final documents should be examined carefully before initiation of construction in order to reduce the work that might be necessary to prepare interpretations, clarifications, or changes to the documents during construction.
The construction project is a four-story building containing approximately 220,000 square feet. The main portions of the building include animal holding quarters, laboratories, office space, a loading dock, support facilities and mechanical areas. The pertinent portion of the Module 1 4 project for the present controversy is the heating, ventilation, and air conditioning (“HVAC”) system. This system basically includes an airflow control system, an air distribution system, air handling units (“AHUs”), and exhaust fans. The airflow control system consists of CVRs, AMSs, DPTs, controllers, and related circuitry. The air distribution system consists essentially of ductwork and devices installed in the ductwork to assist airflow. The AHUs are built-up centrifugal fans, including coils and filters. The exhaust fans are the fans that carry the return airflow out of the building.
The airflow control system was required to achieve three basic control functions: constant static pressure control, constant volume control, and airflow synchronization. Constant static pressure control is achieved by sensing the duct static pressure at an AMS and a corresponding static pressure signal is sent to a static pressure transmitter. Constant volume control is achieved by sensing a fan or duct airflow rate at an AMS with velocity sensing signals sent to a velocity pressure transmitter. Airflow synchronization is achieved by sensing the airflow of a supply (duct or fan) and a return or exhaust (duet or fan) at AMSs located in or at the respective ducts or fans. These signals are sent to a dual input controller, which adjusts fan volume to maintain a constant volume relationship between the two air rates.
York International Corp. (“York”), a Division of Borg-Warner Corp., originally submitted its fan unit CS-578-FO AFHP for AHU Nos. 1-4. 5 This fan has a 33-inch wheel diameter and operates at 1,480 revolutions per minute (“RPM”). Unit Nos. 2-4 were upgraded to larger units because the AHU cooling coil banks required downsizing to fit into their location. This downsizing, among other effects, caused an increase in static pressure. Further, an additional 0.3 inches of static pressure was later added to the total static pressure calculation. AHU No. 1 remained a CS-578-FO AFHP unit expected to produce 7.55-inches static pressure and 32,200 cubic feet per minute (“CFM”) at 1,530 RPM. AHU Nos. 2-4 were changed to a CS-666-FO AFHP fan unit expected to produce 7.86-inches static pressure and 34,800 CFM at 1,352 RPM. The notes portion of the drawing for AHU Nos. 2-4 attached with the resubmittal dated December 7, 1983, contain a comment that the units have a fan wheel diameter of 40 inches. The model 666 unit, however, only comes with a 36-inch fan wheel diameter. The model 666X unit has a 40-inch fan wheel diameter, which was correctly noted in the notes portion of the drawing for AHU No. 6 in the same resubmittal. The error in the drawing notes for AHU Nos. 2-4 was made by one of York’s Sales Engineers. The AHU submittal was recommended for and received approval on January 20, 1984.
The velocity, or speed, of air is measured customarily in units of feet per minute. In the CVR Schedule of Contract Drawing M-65, the volumetric flow rate for each of the various sizes of CVRs, is specified in CFM. The CFM value is calculated by multiplying the velocity, in feet per minute, times the *184 cross-sectional area of the AMS portion of the CVR. 6 Based on Bernoulli’s Principle, the airflow velocity can be calculated from the velocity pressure of the airflow because of the mathematical relationship between the two: The velocity at any point is equal to the square root of the velocity pressure. The velocity pressure is defined as the difference between the total pressure and the static pressure and is measured in units of inches water column (“Inches W.C.”). 7
The CVR contains basically three portions — an airflow straightening portion, an AMS portion, and an opposed-blade damper portion. The airflow straightening portion contains a honeycomb air straightener, which smooths the airflow before it enters the AMS portion. The AMS portion of the CVR contains a total pressure manifold and a static pressure probe, which measure the total pressure and static pressure, respectively, and send a separate signal for each to a DPT. The DPT portion measures the differential pressure, or the difference in pressure between the two signals, which, based on theory, is the velocity pressure of the airflow. The DPT also amplifies the velocity pressure signal into a control signal that is compared with a programmed set point. A controller then generates control signals to the pneumatic actuator of the damper which reacts accordingly to maintain the airflow at a constant air volume.
A substantial dispute arose concerning the specifications related to the size of the CVRs. The CVR schedule on Drawing M-65 specifies, in addition to the volumetric flow rate in CFM, the CVR “size,” with a “W x H” designation, and a maximum pressure drop, designated “MAX.P.D. (in H20).” Contract Drawing M-71 contains two figures above the heading “TYP[ICAL], CONSTANT VOLUME REGULATOR INSTALLATION DETAIL.” One figure portrays a CVR and related ductwork. All of the CVR portions and the surrounding ductwork are shown on this figure to be of a uniform height. Amendment No. 2 changed a dimension “L” so that it now represented the clearance between the opposed blade damper and the airflow measuring device (the AMS portion of the CVR). The original “L” dimension included the damper, as well. Note 2 on Contract Drawing M-2 states that the duct runs (directly upstream of every CVR) were to be in-line straight runs of a minimum length (to be calculated by a given formula) “in the same size as [the] CVR.”
The CVR portion of the specifications, section 15920, U 2.04, was substantially amended. The first sentence of 112.04A originally read, as follows: “The CVR assembly shall consist of a process air volume pitot primary element and a low leakage, air-foil [sic], opposed blade damper in a single housing. In addition, damper linkages shall be provided to accept a pneumatic operator (actuator) which shall be factory installed by the Airflow control manufacturer.” This original paragraph was substituted with the following H2.04A: “The CVR assembly shall consist of an air flow [sic] monitoring station with air straightener, total and static pressure probes and manifolds, and a volume damper, all in a single factory fabricated housing. Damper linkage shall be provided to accept a factory furnished and installed pneumatic operator (actuator).” Ultratech interpreted the single factory fabricated housing requirement using the typical installation details from drawing M-65 to mandate a uniform outside dimension along the entire length of the CVR housing.
The revision of 112.04A.1. required that the CVR dampers contain opposed blades with polyurethane foam, flexible aluminum jamb seals, or an approved alternate. In addition, the interlocking edges of the blades were modified from felt, rubber, or neoprene to self-fastening, molded PVC gasketing, the stated goal of which was to minimize air leakage. Originally, maximum damper leakage was specified, and the contractor was required to furnish leakage factor curves. The revision omitted the specified leakage *185 and verification curve requirements. The original version required a minimum 14-gauge steel damper easing with flanged duct connections, whereas the revision omitted any mention of duct connections. Although the revision deleted, but did not prohibit, the flanged duct connection requirement, plaintiff read the newer version as supporting its interpretation of a single factory-fabricated housing requirement. Finally, 112.04D originally required the “CVR casing” to be at least 12-gauge steel with flanged duct connection and welded seams. The revised 1I2.04D set forth that the “CVR housing” was required to be 14-gauge or heavier galvanized steel with flanged duct connections and welded seams.
On February 27, 1984, LBC & W received Ultrateeh’s Submittal No. 1 containing Ultra-tech’s design for its proposed CVR. Pursuant to the requirements of the submittal process, Ultratech proffered a physical sample of its proposed CVR under the specifications. This sample could be no smaller than an 8- x 8-inch unit. According to LBC & W’s shop drawing log, Ultratech submitted its sample CVR three times, on the following dates: April 20, 1984; June 25, 1984; and September 6, 1984.
Defendant argues that Buck Bobbitt, former owner of Ultratech, now deceased, was solely responsible for the design and construction of the Ultratech CVRs. Plaintiff counters that LBC & W was responsible for the CVR design and that Mr. Megna assumed responsibility for overseeing design compliance throughout the submittal review process.
In its “Memoranda for the Record,” LBC & W recorded concerns regarding the CVR submittal history. These memoranda were forwarded directly to the appropriate subcontractor for response, in this case Ultratech, to expedite the submittal process. An entry dated May 1, 1984, reflected LBC & W’s concern that, based on Ultratech’s submittal, the subcontractor may not meet the specification requirement that Ultratech present evidence of successful supervision, calibration, and start-up services for similar projects over a two-year period. LBC & W stated that Ultratech’s submittal failed to provide evidence that it could support the Module I project with a large, well-organized, and qualified team that had worked together successfully on similarly large projects. LBC & W’s expressed concern, which was “underscored” by one of the Ultrateeh’s references, was that Ultratech had performed only small projects, even though some were complex. Ultratech responded that the FDA project consisted of simple units in large, mostly identical quantities, whereas its earlier projects were more complex. It could produce these units with greater ease than producing a smaller number of highly-varied and complex units.
LBC & W further noted that the pitot array 8 did not comply with specifications and that the damper frame was an excessive and abrupt obstacle to airflow. Ultratech stated that it considered an averaging, multi-point static sensing array as superior to a single-point static sensor, but in the resubmittal complied by providing the single-point static sensor. With respect to the damper frame, Ultratech asserted that the damper frame was the smallest one available that included all specified components. Further, Ultratech stated that even though the damper frame appeared large with respect to the small duct area of the sample submitted, 9 it would be relatively small on larger CVRs.
LBC & W’s Mr. Megna testified that a drawing from Ultratech’s January 11, 1985 Submittal No. 3, which portrayed the damper location within the CVR housing, showed the damper blades reaching the extreme portions of the housing without depicting a damper frame. This same drawing is referenced, as well, by Ultratech at the beginning of the same submittal in the Specification with Commentary Section. After the specification *186 subsection referring to- damper requirements, which include a reference to a damper frame, the Ultratech comment directed the reader’s attention to the drawing at page 24 for damper installation.
On September 19, 1984, Thomas P. Glavin, the FDA’s Resident Engineer, approved Submittal No. 2, seven months after the first submittal. The CVRs were approved with the original damper frame. Mr. Megna testified that the submittal was approved based upon Ultratech’s response to the comment, which noted that the damper frame appeared obstructive; Ultratech’s written guarantee, as the specialty subcontractor, that the system would properly perform; and other assurances. Although Mr. Megna could not testify as to informal assurances given him by the deceased former president of Ultra-tech, he did testify that, based on Ultratech’s submittal, its pressure drop for the AMS portion of the CVR was lower than that of Air Monitor. It was his interpretation that this lower pressure drop for the AMS could offset the pressure drop of the damper. Submittal No. 3 appears to have been a resubmittal for an instrumentation change, presumably the use of Brandt DPTs instead of Air Monitor DPTs. 10 Ultratech provided approximately 555 CVRs to the project and approximately 61 stand-alone AMSs for installation into the ductwork.
Ultratech ordered Ruskin CD-35 dampers utilizing screwed construction — braced at the corners, rather than welded. In addition, the damper frames were of 16-gauge, four-bent channel construction, rather than the 14-gauge steel specified in the contract. Plaintiff asserts that the Ruskin damper frame construction is substantially compliant with the CVR specifications and did not detract in any way from the damper’s performance.
Kirlin’s sheet metal subcontractor, Hamilton & Spiegel, Inc., sent a March 6, 1984 letter to Gary M. Grandchamp, Kirlin’s Senior Project Manager, regarding ductwork conflicts in the utility corridors. 11 Hamilton & Spiegel stated that the system needed a complete redesign so that the ductwork and components could be placed in the utility corridors, in the general locations depicted in the drawings and achieve the design criteria. Further offsets would be required for duct-work in the utility corridors along with more expensive fittings. If the redesign described by Hamilton & Spiegel were not implemented, static pressure and airflow requirements could not be achieved.
On October 16, 1985, Anglo-American Associates, Inc., an insulation subcontractor, sent a letter to Kirlin documenting a telephone conversation of the same date. The letter recorded an agreement that the insulation subcontractor would not be held responsible for correcting or repairing any insulation work that later became damaged as a result of leaks in the ductwork because of Kirlin’s direction to install the insulation on all pipes and equipment whether or not it had been previously tested for leaks.
At a February 15, 1984 meeting between representatives of plaintiff, Kirlin, LBC & W, and the FDA, Kirlin asserted its position that additional compensation should be awarded because the number of offsets required was excessive. In Kirlin’s opinion it was responsible for coordinating work so that the work fit into the required space, but Kirlin was not responsible for costs attributable to a poor design or internal conflicts between architectural, structural, and mechanical drawings. In a February 29,1984 letter to plaintiff, Mr. Grandchamp emphasized Kirlin’s position that Kirlin would not proceed with farther coordination efforts until it received detailed drawings resolving the matter. The FDA and Hamilton & Spiegel took the position that the contractor had the responsibility to coordinate the work using as many offsets as required to fit the equipment into the proper location. Finally, in a claim letter to Contracting Officer Cynthia A. Hawley in early March 1984, plaintiff echoed the subcontractor’s assessment that a design deficiency caused the equipment location problems *187 which went beyond its contractual obligations.
After a March 20,1984 decision denied the demand for revised detailed drawings and after a March 28 meeting between the parties, Contracting Officer Hawley, who was the FDA contracting officer with continuing responsibility for the administration of the contract, issued a final additional compensation decision on April 6, 1984. Plaintiffs request for additional compensation was denied based on the contracting officer’s opinion 12 that composite drawings showing equipment coordination derived from the architectural, structural, and mechanical drawings had to be created by the contractor. The contracting officer further stated that plaintiff agreed that there were no conflicts in the drawing if offsets were used. Based on the foregoing and the contract, plaintiff was deemed responsible for providing any offsets needed for coordination at no extra cost to the FDA.
On April 5, 1985, William H. Hoffman, the FDA’s Project Officer and a mechanical design engineer, strongly recommended to Mr. Megna that the “numerous design conflicts, errors and omissions” that occurred during the pre-bid and construction phases of Module I be considered in preparing for Module 11, the second phase of the project, which at that time was in the design phase. He suggested that the “extremely large” numbers of Module I bid addenda and clarification requests be reviewed to eliminate or reduce any problems with the Module II design documents.
Defendant maintains that Drawing M-65 established pressure drop performance requirements that Ultratech submissions did not meet. Plaintiff argues that LBC & W required no pressure drop certification or testing from Ultratech for the CVRs. Further, plaintiff points to the lack of a written submittal record mentioning Drawing M-65 or referring to pressure drops, nor any specification for a test of pressure drops. Defendant counters that Ultratech’s submittal record does contain mention of Drawing M-65. Defendant further contends the contract obligates the contractor to meet the pressure drop performance requirements scheduled on Drawing M-65 and asserts that the contractor could not achieve these requirements without performing engineering tests on the CVRs. As previously mentioned, Mr. Megna testified that Ultratech’s January 11, 1985 Submittal No. 3 did contain mention of pressure drops for its standard AMS product which comprises one of the portions of a CVR. In the Specifications for Standard Units section, the submittal listed AMS “Unrecovered Head Losses” of less than 0.13 Inches W.C. for the standard option and less than 0.065 Inches W.C. for an option G. Although this figure does not include any pressure drop attributable to the damper portion of the CVR, it demonstrates that pressure drop information is generally provided by AMS manufacturers and can be important when choosing equipment for an application. Defendant also refers to LBC & Ws comment about the inadvisability of Ul-tratech’s damper frame selection, which LBC & W considered to pose an excessive and abrupt obstacle to airflow.
2. Problems with testing and balancing the AMS system
A meeting between Kirlin and the construction engineer took place on March 10, 1986. In a letter of the same date from Kirlin to plaintiff summarizing the meeting, Kirlin asserted that the CVRs gave erroneous airflow readings because of problems with the configuration of the ductwork and equipment. Kirlin recommended that the DPT spans be adjusted to make the gauge readings correspond with flow hood readings taken by the air balance subcontractor. According to Kirlin, another flow hood reading would then be taken and the DPT readjusted, if necessary. The reading should then be close to the set point. This process would be repeated until the DPT gauge read zero with no airflow and indicated a flow equal to the set point when flow hood measurements equaled the set point flow. Kirlin stated that *188 correct readings at these two points should signify that correct gain has been established and the gauges should read properly over the whole range. Kirlin guaranteed that the gauges would read properly at the set point based on the above adjustments. Two days later plaintiff forwarded Kirlin’s letter to the FDA.
On March 20, 1986, the contracting officer conditionally approved plaintiffs above-described request to adjust the DPTs. One of the three prior conditions that plaintiff was to satisfy in the presence of an FDA-authorized individual was performing a visual inspection of the following: the ductwork to ensure no debris was present; the holes in the total pressure manifold tubes and the static pressure probes to check if they were blocked or clogged; the distance between the manual volume damper and the sensing elements to see if this was affecting the airflow; and, finally, the ductwork system to identify any possible leaks. The other conditions required that all of the adjustments be recorded in the balancing report, all DPTs be labeled to show the changes made to them, and all of the readjusting be accomplished at no cost to the FDA. Paul S. Pinkston, Ultra-tech’s Technical Director, performed the DPT adjustments from March to June 1986 with the assistance of Kirlin personnel and a Brandt employee.
Thomas P. Glavin, the FDA’s Resident Engineer, sent plaintiff a letter dated April 17, 1986, expressing concern that all of the DPTs apparently needed adjustment, whereas when the conditional approval was given by the contracting officer, it was the FDA’s understanding that originally only approximately 25 percent would require the work. The DPT adjustments were allowed to continue based upon an agreement that Ultra-tech provide the FDA with a letter explaining why all the DPTs needed adjustment and that Ultratech assure the FDA that the adjustments would in no way impact on CVR function or life span. George K. Rowe, an LBC & W draftsman and engineering technician, recommended to Mr. Glavin in an April 21 memorandum that the AHU and exhaust measurement and control systems be calibrated, adjusted, and verified by Ultratech so that the gauges correctly indicated the actual flow through the AMS. Mr. Rowe believed that such a calibration would facilitate assessment as to whether the system was improving as a result of Ultratech’s ongoing DPT adjustments. In an April 24, 1986 letter, Mr. Glavin, following Mr. Rowe’s recommendations, instructed plaintiff to ensure that the above calibrations be performed.
Kirlin sent its field personnel a letter dated May 7, 1986, confirming a meeting with the FDA and presenting the meeting minutes. As recorded in the meeting minutes, the letter noted that Ultratech did not have a problem complying with the FDA’s testing and balancing instructions after being informed of the April 24 FDA letter concerning testing and balancing. According to another FDA letter dated June 9, 1986, Ultratech agreed to obtain and provide to the FDA before and after readings of static pressure, total pressure, and velocity pressure for selected CVR units. Another item recorded that Ultratech anticipated finishing by June 14, 1986, in the absence of problems.
The FDA’s building manager made an entry into his logbook on April 30, 1986. The entry addressed Module II of the FDA project and queried whether Mr. Glavin, as Resident Engineer of Module I, possessed any insights into improving the resident engineer’s job with respect to Module II. Mr. Glavin suggested that more inspectors throughout the project were needed and that he could use a full-time assistant. He also suggested that the inspectors be government employees, rather than contract employees, as with Module I. An entry of May 23,1986, from the same logbook noted that James R. Penn, plaintiffs Area Manager, noted that the HVAC balancing would be completed by the end of June 1986. Another entry of the same date recorded that Seneca Air Balance, Inc. (“Seneca”), Kirlin’s balancing subcontractor, had convinced Kirlin that Ultratech was the source of the balancing problems.
By letter on May 8, 1986, the FDA expressed the following concerns to plaintiff regarding the apparent lack of progress in testing and balancing the air systems: The air handlers had yet to operate at their in *189 tended design airflow and pressure based on the Ultrateeh panel gauges; the air handler gauges had not been calibrated yet to match pitot traverse airflows; the recalibration of Ultrateeh gauges and transmitters remained unfinished; and approximately 70 Ultrateeh panel gauges, removed because of-holes in Bourdon tubes, had yet to be reinstalled. A Seneca balance test report sheet dated June 10, 1986, indicated that the airflow for AHU No. 2 was 16 percent below design. Another sheet indicated that AHU No. 3 was 10 percent below design.
Kirlin first inquired of Ultrateeh by letter on June 9, 1986, why the latter had not complied with its agreement to provide before and after readings of static pressure, total pressure, and velocity pressure for selected CVR units. Kirlin requested that Ul-tratech provide the information by June 13, 1986. Apparently, the information had still not been received by the end of June, as Kirlin made a second request for the information on June 30, 1986.
On August 15, 1986, Thomas W. Humen, York’s Senior Sales Engineer, sent Kirlin a letter and a copy of a report issued by York. The letter summarized the following conditions noted in the report: 1) Although Fan Nos. 2, 3, and 4 had identical design conditions, they had different system designs; 2) air leaks existed in unit Nos. 1 and 2; discharge dampers in some units create a loss; notable losses were recorded in the damper leading to system No. 4; and losses existed at the fan transition.
On July 21, 1986, the contracting officer participated in a meeting at which plaintiffs Mr. Penn and the FDA’s Mr. Hoffman were present. Contracting Officer Caroline P. Dean’s minutes recorded that plaintiff had achieved the static pressure for AHU Nos. 2 & 3, but not the flow. A suggestion was voiced that the extra flow could be obtained out of AHU No. 4. 13 Mr. Hoffman expressed concern that using AHU No. 4 to augment airflow would result in inconclusive test results. According to Mr. Hoffman, if flow were diverted to the system, it would not be known whether more static pressure was necessary to push the airflow through the ductwork. This suggestion appears to be similar to a test later performed by LBC & W. Mrs. Dean declared after trial that plaintiff gave the contracting officer two documents entitled “FAN STATUS 7/17/86” at the meeting. The sheets list AHU Nos. 4-13 as “ok” and the CVRs for System Nos. 1-3 as “ok.”
In a letter dated July 30,1986, Kirlin’s Mr. Grandchamp stated that testing of the equipment revealed nothing; the equipment functioned as designed. According to Mr. Grand-champ, after considerable testing Kirlin determined that the CVR construction was causing a higher static pressure drop in the ductwork that prevented proper airflow delivery. Mr. Grandchamp informed plaintiff of Kirlin’s intention to ignore the low airflow and have the system balanced and set into automation. Mr. Grandchamp testified that it was Kirlin’s intention to see if the FDA would accept a working building with low airflow.
By the end of July 1986, after months of unsuccessful efforts to achieve sufficient airflow to balance the HVAC, plaintiff sought a meeting with the contracting officer to discuss the situation. The contracting officer responded in a letter dated August 1, 1986, that such a meeting would be premature and requested that the contractor present a detailed definition of the HVAC problems, including evidence to support its findings, recommendations for a remedy, and alternatives. Plaintiff replied under a cover letter dated August 15, 1986, with various evaluations and proposals received from its subcontractors to remedy the problem. The following subcontractors prepared and submitted evaluations and proposals: Kirlin, York, Trane Co., Seneca, and Ultrateeh. These evaluations and proposals will be discussed serially.
In its August 15, 1986 letter, Kirlin presented a summary of submittals and its own recommendations based on the submittals of the subcontractors. Seneca, Kirlin’s air bal- *190 anee contractor, found constant low CFM delivery to the rooms when attempting to air balance the systems with CVRs installed. According to Kirlin, the CFM reading of rooms served by systems with CVRs installed in the supply and the return ranged from 5 percent low to 75 percent low. In a section captioned “Results of tests performed,” Kir-lin noted that York mentioned air leaks at the duct and the dampers, but asserted that Kirlin corrected both problems. Kirlin stated that York believed its fan equipment capable of delivering design CFM and static pressure. Kirlin did not summarize Trane’s evaluation of its fan equipment, but stated that both manufacturers’ reports indicated that the equipment was capable of performing as specified. Finally, Kirlin stated that Kirlin and Hamilton & Spiegel, plaintiffs sheet metal subcontractor,- with the assistance of Seneca, the balancing subcontractor, inspected the entire ductwork for air leaks and were unable to find any leaks of consequence.
Kirlin proposed alternatives to remedy the airflow problems. First was Ultrateeh’s suggested replacement of the type and location of the damper described below. Kirlin estimated that it would take roughly three months to implement. Another suggestion proposed increasing the CFM and static pressure by replacing the York fans and potentially the Trane fans, as well. Kirlin projected that it would take six months to complete this modification. Finally, Kirlin suggested removing the damper in the CVR and connecting controls between the CVR and the motor operated damper, thereby changing the damper from a two-position damper to a modulating damper. Kirlin estimated an approximate two-month duration for implementation of this alternative. Kirlin suggested that the impact of the above alternatives on the CFM and static pressure performance requirements could only be evaluated by the owner’s design team, but expected no significant impact on the life of the equipment. Kirlin referred to Attachment “F” for Ultratech’s position concerning design errors and noted that the York and Trane fan equipment and the Johnson Controls, Inc. motor-operated dampers appeared to be functioning according to specification. By Inter-Office Correspondence on July 2, 1986, York submitted a summary of problems and a suggestion that elimination of all losses would result in the York AHUs producing the designed static pressure and CFM airflow. The problems included the following: Inlet vanes on the drive side of Unit No. 7 fan did not open wide unless the main control air was applied directly to the operator; all ductwork from the units was not the same; air leaks were visible in the cabinet and ductwork (especially AHU Nos. 1 and 2); dampers were positioned in the outlet of some units and not others; short radius turning vanes were used in elbows, rather than turning vanes with extended trailing edges; and losses occurred in the transition from the fan section to the coils. In comparing the performance curves of the fans to the design curves, York stated that the actual system curve fell to the right of the design curve and below the fan curve line of that particular RPM. According to York, the Sheet Metal & Air Conditioning Contractors National Association (the “SMACNA”) HVAC manual states that when the actual system curve falls to the right of the calculated duct system curve, the design fan is capable of delivering sufficient static pressure to the system. York suggested that this indicates a possibility that system effects were not added to the calculated system pressure losses to determine the actual system curve.
In a July 3, 1986 letter, Trane concluded that the fans operated properly, but that problems in the system design affected fan performance. Based on the fan design, airflow losses were caused by leakage, damper settings, or inlet air conditions. Trane recommended that inlet air conditions be checked first to ensure adequate clearance on both sides of the fan inlets. Trane noted that the Seneca balance reports also indicated problems with the dampers and the damper linkages which could effect airflow. According to Trane, the low airflow most likely resulted from fan inlet conditions or abnormally high restrictions within the CVRs. Trane suggested that the CVRs were “apparently operating with a very small percentage of the required area for proper operation.” Trane presented Seneca’s opinion that another diffuser might reduce the above design *191 static pressure and thereby increase the below design CFM for Exhaust Fan No. 31. Alternately, Trane recommended providing a new drive to increase the speed of the fan and offset the increase in static pressure.
At Kirlin’s request Seneca took a series of static pressure drop readings at CVRs. According to Kirlin’s cover letter, the materials submitted by Seneca indicated a 0.45-, 0.75-, and 0.9-inch static pressure drop across the CVRs. The first pages of data, however, gave the static pressure drop across 25 CVRs located in various portions of the supply and exhaust ductwork. The average pressure drop across these 25 CVRs is 0.39 inches static pressure. Seneca also performed a static pressure profile of three CVR units. This profile revealed that the majority of the pressure drop occurred across the damper section of the CVRs.
In a letter dated August 12, 1986, Ultra-tech provided its opinion as to the source of the airflow problem. Ultrateeh identified the inadequate performance of at least three fans as a contributing factor that affected approximately one third of the CVRs. Ultrateeh further voiced its suspicion that other fans were undersized. In addition, Ultrateeh suggested that other factors, including the Johnson Controls motor-operated damper, the manual damper, the hot water coil, and the humidity sensor, contributed to the pressure drop. In Ultratech’s opinion the pressure drop across these elements, and especially the motor-operated damper, were quite significant. Finally, Ultrateeh noted pressure drops associated with the turns in the duct, general layout of the duct, and the size of the duct. Ultrateeh asserted that given the detailed specification requirements with respect to the CVRs and the damper within the CVRs, the design engineers effectively established the performance characteristics of the CVRs.
In the same letter, Ultrateeh proposed modifying and altering the written CVR specification with the following: 1) Canceling the CVR single-housing requirement and then removing the flexible jamb seal requirement by not seeking a goal of minimizing air leakage; 2) eliminating the damper self-fastening and interlocking-edge requirement; and 3) revising the CVR and damper specification to require a separate damper housing with flanged duet connections. Ultrateeh suggested that certain CVRs be removed from the duct and the damper end section separated from the CVR. Consistent with the revised specification, a new damper (inside its own housing and with flanged duct connections) would be attached to the CVRs and reinstalled into the ducts.
Along with Ultratech’s proposal and other manufacturers’ submittals sent to the plaintiff, and in turn to the contracting officer on August 15, Kirlin inserted a copy of the Memorandum for the Record. This memorandum, written by LBC & W for the CVR submittal history discussed above, see supra pp. 184-85, was enclosed to show that there had been concern with the CVR damper frame from the time of Ultratech’s first sub-mittal.
Plaintiff argues that Ultrateeh responded to the contracting officer’s August 5, 1986 letter with an accurate diagnosis of the point of airflow constriction at the CVR damper and damper frame. In addition, according to plaintiff, Ultrateeh proposed a specification revision to modify the CVR configuration toward removal of the damper frame from the airflow and easement of the damper leakage requirements, the practical offshoot of which was to disrupt and obstruct the flow of air. Defendant correctly notes that the Ul-tratech August 1986 proposal to modify the dampers was not the only alternative presented by Kirlin and plaintiff in response to the contracting officer’s letter. Kirlin and plaintiff presented a total of five different alternatives. A close inspection of Kirlin’s proposal reveals three alternatives and two comments regarding the alternatives. The FDA decided to proceed with the fan problem first.
On August 28, 1986, a meeting/system test respecting airflow problems took place at which Mr. Grandchamp, among others, was in attendance. Mr. Rowe stated in a Memorandum for Record dated the next day that supply Air System Nos. 1-4 “appear to be of sound construction with minimal air leakage.” 14 Mr. Rowe further recorded that, *192 based on tests performed and a visual inspection, those present held the general opinion that the duct system was performing properly within design conditions. This opinion was based upon a test whereby AHU No. 4 was connected to feed Air System No. 1. AHU No. 4 was placed on line with variable inlet vanes open wide and then AHU No. 1 was started to operate in parallel with AHU No. 4. These efforts were to increase the CFM and static pressure of Air System No. 1 to design. Mr. Rowe noted that the inlet vanes of AHU No. 1 opened approximately 10 percent according to the panel gauge. The inlet vanes were controlled by the system pressure. The combined AHUs produced 34,000 CFM with 1.1 inches static pressure. Both the CFM and static pressure readings were taken from panel gauges. Design CFM is 32,200 CFM for AHU No. 1, and the static set point, or desired static pressure, is 1.2 inches. Next, with the system operating as described above, the airflow panels were observed. Mr. Rowe noted that the airflow into the rooms varied from above set point to below set point, with many rooms at set point. There was also testimony that Mr. Rowe of LBC & W observed the CVR damper actuators modulating. The tests indicated that the CVRs were receiving sufficient airflow to allow the system to operate in automation. Mr. Rowe testified that he went to the furthest room and measured the airflow, which seemed to be at the levels indicated on the AHU schedule of Drawing M-62. Finally, Mr. Rowe noted in the memorandum that the above test indicated that the duct system, including the CVRs, would perform as designed. In his opinion this eliminated the “duct system” effect as the cause of the low airflow problems.
On September 9, 1986, Mr. Rowe sent a letter to the contracting officer stating that, based on the above test of the duct system, the CVRs would perform as designed when adequate airflow was supplied. Mr. Rowe characterized as misleading the tests performed by York and Seneca because the design static pressure was not included in one test nor the CFM in another. He further questioned York’s interpretation of the actual system curve versus the design system curve. Mr. Rowe explained that when the actual system curve falls to the right of the design system curve, the system will operate at a lower pressure loss than designed. Also, a fan is not performing up to design when the actual pressure-volume point falls below the design pressure-volume curve. This contradicts York’s earlier assertion that under the SMACNA manual the design fan is capable of meeting the actual system pressure loss. According to Mr. Rowe, based on the above duct system test, the problem appeared to be within the AHU. He noted that with respect to an AHU, if the supply air duct, including the discharge damper, contributed to the airflow constriction, the result would be an increase in static pressure. It would not result in the measured static pressure reading below actual flow design. He also stated that air leakage appeared negligible and that no unusual coil and filter arrangements were present. Based on his analysis of the AHUs, Mr. Rowe concluded that the fans were failing to perform in accordance with the approved submittals. Mr. Rowe further added that the York fans did not have cutoffs to help assure good pressure distribution. He explained that the supply air problems were being resolved before the exhaust fan flow problems. Finally, Mr. Rowe noted that the CVRs were not the cause of the fan deficiencies.
On September 25, 1986, the FDA’s Project Officer, Mr. Hoffman, sent the contracting officer a letter after having reviewed plaintiffs August 15, 1986 submission and LBC & Ws response. Mr. Hoffman noted that while plaintiffs submission identified possibilities for solving the airflow problem, it failed to give a specific cause. He also pointed out that the York, Trane, and Ultratech analyses consisted largely of defenses for their respective equipment. In Mr. Hoffman’s opinion, LBC & Ws response, while disagreeing with the York and Ultratech positions, was also defensive in nature. Mr. Hoffman stated that, as expected, no one came forward to take responsibility for any problems. He described the situation as classic “finger-pointing.” He noted that if the equipment *193 installed at the project by plaintiff did not meet the specification requirements, plaintiff would be responsible for any delays. If, however, the design engineer did not properly calculate the static pressure drop across system elements or the distribution duct-work, the FDA would be required to seek compensation from LBC & W. Finally, Mr. Hoffman recommended that another consultant be hired to ascertain the cause of the airflow problem.
The contracting officer sent plaintiff a letter on September 26, 1986, chastising the contractor for not having a person with authority at the job site as required under the contract. The contracting officer noted the serious HVAC balancing problems and mentioned that winter was approaching 15 while equipment still remained untested. On September 29, 1986, in a letter to plaintiff, the contracting officer, after consultation with LBC & W, suggested that Trane and York should provide factory engineer representatives at a proposed October 1 meeting. Neither Hamilton & Spiegel nor Ultratech representatives were considered to be essential participants, but they could attend if plaintiff so desired.
In an October 1, 1986 letter to plaintiff, Kirlin disputed the test results of the August 28, 1986 meeting/system test. According to Kirlin, the testing occurred at 34,000 CFM, rather than the design airflow of 32,200 CFM. Kirlin’s interpretation of the reasons for low airflow included the following: unacceptable turbulence and a static pressure drop caused by the designed fan discharge transition fitting; turbulence caused by the design of the Glycol Coils and Heating Coil; and a lack of a smooth transition caused by the design of the fan plenum discharge. Based on its testing of AHU No. 3, found to deliver 99.65 percent of design airflow, but downstream delivering as low as 60 percent airflow, Kirlin reiterated its earlier stance that the design airflow at the outlets and the static pressure drop at the CVR would not be met even if design airflow and static pressure could be provided. In conclusion Kirlin stated its opinion that when designing the system, the design engineer failed to take into account either the conditions of the design or the allowance of proper design tolerances.
3. Replacement of the York fans
On October 1, 1986, a meeting was held at which representatives from the following companies or firms were in attendance, in addition to the contracting officer: LBC & W; plaintiff; Kirlin; York; Ultrateeh; Johnson Controls; Hamilton & Spiegel; Seneca; Comfort Control, Inc.; and Goldman Associates. Comfort Control was hired to assist Seneca in balance testing. Goldman Associates was apparently a consulting firm hired by the FDA to look into fan performance. Mr. Megna expressed that the August 28 test delivered adequate airflow at the proper static pressure. According to Mr. Megna, this test verified the adequacy of external static requirements, which, in turn, were verified again by computer. He explained that the addition of the standby AHU No. 4 fan allowed delivery of the design airflow, yet did not exceed the design external static pressure. Mr. Megna also explained that such a system is designed by calculating the exteri- or and total static pressures with respect to the longest run of ductwork. Therefore, the unit test measurements were taken during the test at the longest duct run.
Mr. Megna further stated that the purpose of the test was to explore the total system static pressure and that the test demonstrated that the AHU accounted for the majority of the pressure drop. If the system static pressure losses exceeded the design, normally the design CFM would correspondingly drop. Here, however, both the CFM and static pressure were below design. Therefore, LBC & W had concluded that a fan performance problem was present.
Wayne T. Day, President of Kirlin, asked where the system static pressure measurement had been taken. Mr. Rowe explained how York had taken its readings across the fan coil, filters, and other components, which included the discharge and intake plenums *194 and some measurements on the suction side of the fans. Mr. Megna added that LBC & W’s analysis went further by taking fan motor current readings; these readings were converted to brake horsepower to confirm that system static pressure was below design. Mr. Megna explained that the fans were not performing the work that was intended because the static pressure was down and the CFM was down, as well. In his opinion the current readings were low because the fans were not performing to design specifications.
Initially, LBC & W investigated the fact that the York fans have much less pronounced cutoffs than Trane or other competitor fans. Comparing the York fans with similar fans of the same physical size, Mr. Megna stated that there were significant differences in performance. According to his research, the York fan was really a medium pressure fan, both by its listing and per Air Movement & Control Association (“AMCA”) ratings, rather than a high-pressure fan as the contract specifications and second sub-mittal contemplated. Mr. Megna further suggested that the contractor might consider testing the performance of other equivalent manufacturer fans by placing them under the system and field conditions.
Mr. Megna also stated during the October 1,1986 meeting that he was comfortable with the design characteristics of AHU No. 1. He mentioned that York assured the design engineer that the fans could meet the performance requirements. Pat Sanabria, of Goldman Associates, added that the system external static pressure was verified both in the field and through a design computer program. The field measurement was taken at the longest duct run and included all components. Mr. Sanabria asked whether the contractor had any data demonstrating that static pressure losses exceeded the architect’s numbers. Stanley Fleischer, of Seneca, responded that Seneca had been unable to test the system while throttled down and that the tests performed up to the date of the meeting had been performed with the system open wide manually.
Mr. Day of Kiriin asked if the field test was performed at 34,000 CFM or at the design CFM of 32,200. LBC & W advised him that the sensor reading was 1.1 inches and 700 CFM at the longest run. Mr. Grandchamp added that this delivery was measured with the damper 50 percent closed (or throttled). Mr. Hoffinan noted that, with AHU Nos. 1 and 4 operating simultaneously, the CVRs were observed modulating. This indicated to him that there was excess pressure available at the CVR. Mr. Day next asked what reading was measured at the discharge of the fan. He was informed that the reading at the Y-duct junction was 1.9 inches. Mr. Day inquired why 34,000 CFM was used, rather than design. He was told that allowance was made for leakage. He then asked why Room 3901, the location of the longest duct run, was throttled and was advised that it would normally be operating slightly throttled.
Mr. Rowe stated that no excessive drop from the fan discharge to the inlet was found. He was attempting to prove by this test that the discharge loss was not excessive. Mr. Fleischer mentioned that the longest duct run may not be the run that requires the highest static pressure. Mr. Megna replied that by taking the longest duct run with a CVR in it, any shorter duct run could be assured to have more static available. Mr. Day questioned why tests show insufficient static readings from the unit. Mr. Megna replied that, according to his research, the low static pressure readings at the AHU directly result from inadequate fan performance. Mr. Day inquired why the fans were not rejected initially during the submittal phase when LBC & W reviewed them. Mr. Megna responded that LBC & W trusted the York representations and literature and that there was no reason to verify data such as fan curves.
Len Crawford of Johnson Controls was asked to state what value he obtained when measuring the static pressure loss across the discharge damper. He responded that the value was low, approximately 0.06 Inches W.C. Mr. Day next asked if more static pressure is required than design when the filters are dirty. Mr. Rowe explained that the documents only give the external static pressure requirement and the maximum *195 pressure drops through the coils and filters. The total static pressure was calculated in the second submittal by utilizing a 50-per-eent loading filter factor under the assumption that all filters would not be dirty at the same time.
Mr. Megna next addressed other factors that he took into account in his review of the problem. According to Mr. Megna, at 28,000 CFM the total static pressure was lower than 7.55. Further, the brake horsepower was down, and the RPM was greater than the submittal value, yet the current and static pressure were lower. Gary G. Wilkins, York’s Zone Sales Manager, who was requested to address the issue by Mr. Day, stated that York would rely on its July 1986 report. It was York’s position that the design of the fan transition exceeded current SMACNA requirements. Mr. Wilkins asserted that this transition was the cause of the decrease in velocity and suggested that a false bottom be placed in the transition to reduce the losses. Mr. Megna mentioned that his firm had used the present transition on many similar projects and the transition is a common one. He asserted that it is not a common practice to redesign transitions or discharge plenums to enhance performance.
Michael Margolis, Comfort Control’s Vice President of Operations (now President), stated that AHU No. 3 demonstrated 99.6 percent of design CFM and that static pressure had been met for this unit. He further stated that a government representative verified that the unit operates at sufficient external static pressure. According to Mr. Mar-golis, the combined AHU Nos. 1 and 4 were determined to have an external static pressure loss of 10 to 15 percent in excess of design at 32,250 CFM. Mr. Megna asserted that either the pitot traverses were incorrect or excessive duct leakage exists because the sum of the air quantity did not check out. He also stated that the air quantity problem could be resolved by speeding up the fan, but the present fans do not have the capacity to compensate. Mr. Rowe added that the static pressure calculations based on field measurements were made using the worst fan loading conditions and yet the calculated total static was higher than indicated during York’s test, but still approximately 2 inches below design. This reinforced Mr. Rowe’s opinion that the fan is 58 percent efficient, rather than the 69 percent stated in the submittal.
Mr. Day next asked if Mr. Megna was of the opinion that the York fan would not deliver if taken out and tested. Mr. Megna responded that a test outside of field conditions would be invalid. Mr. Day inquired as to the extent of the fan’s failure to perform. Mr. Megna informed him that the fan was lacking about 10 percent of the design CFM and about 2 inches of static pressure. Plaintiffs Mr. Penn questioned whether the designed 32,200 CFM was contemplated under normal or ideal conditions. Mr. Megna answered the former. Mr. Megna suggested that the York fans be tested independently or that York investigate whether or not they are truly high-pressure units. Mr. Penn asked the contracting officer to give a directive under the contract Inspection Clause to prove or disprove fan performance as the source of the problem. The contracting officer declined, stating that the FDA was not yet at the point of inspecting.
Mr. Sanabria, the consultant to the FDA, asserted that nothing had demonstrated that the specifications either created or contributed to the problem. In his opinion the meeting revealed that the fans were incapable of delivering the design CFM and static pressure, suggesting an equipment problem, rather than an engineering problem. Finally, he emphasized the fact that no one had challenged or discredited the figures dictated by the design engineer. Mr. Penn stated that his supplier asserted that the fan meets the specifications and questioned whether he had any alternative. Mr. Sanabria informed him that a fan producing less than 32,200 CFM does not meet the specifications. Mr. Penn asserted that his supplier would certify that the fans were operating properly, but that a downstream problem impedes their performance. Mr. Sanabria noted that external static pressure had been verified and questioned what is impeding performance.
Mr. Wilkins again stated that the fan transition was impeding fan performance. Mr. Day asked if the transition detail was to scale and if the transition is a normal one. Mr. *196 Wilkins replied that there are better transition designs. Mr. Megna asked why York failed to raise the issue when the 7.55-inches system static pressure was agreed to during a meeting regarding the second submittal. He asked Mr. Wilkins to explain how the present transition adversely affects performance. Mr. Wilkins stated that York’s position was that the units can meet the required 32,200 CFM if the transition was of standard design. Mr. Megna inquired what was such a “standard design.” According to Mr. Wilkins, the discharge duct at about 10 feet or more before the transition should be of uniform cross section. The contracting officer asked John E. Leigg, then with Hamilton & Spiegel, whether he would describe a duct design held straight for 10 or more feet before a transition as standard. Mr. Leigg answered no. She also asked him whether in his experience it was common to see such a design in the field. He again answered in the negative.
The contracting officer questioned Mr. Penn about his proposed course of action and he stated that he would seek a remedy from Kirlin. Mr. Day stated that he had no further questions and indicated that Kirlin would conduct additional tests and complete its investigation. The meeting was then adjourned.
By telegram during early October 1986, York’s Mr. Wilkins reiterated York’s position to Mr. Grandchamp that the fans were being inhibited by the system design and effect. With the expressed intention of maintaining good will, York informed Mr. Grandchamp that it would increase the RPM of one fan in an attempt to overcome the inhibitions. This process was to be finished within three weeks. On October 14, 1986, Fred M. Butler, plaintiffs Senior Vice President, wrote a letter to the contracting officer concerning the FDA contract. Discussing the balancing of the HVAC system, Mr. Butler mentioned that Kirlin was pursuing the matter vigorously and was proceeding with fan replacement “since the problem seems to have narrow [sic] to obtaining and installing higher capacity air movement fans.”
A letter dated October 23, 1986 from Mr. Wilkins to Mr. Grandchamp communicated York’s determination, based on testing a day earlier, that the modified fan could overcome the system effect and meet the design CFM and static pressure requirements. York indicated that it would proceed immediately with modifications unless it heard otherwise. A postscript at the bottom of the letter relates a phone conversation with Mr. Grandchamp on the same date wherein Mr. Grandchamp informed Mr. Wilkins of Kirlin’s intent to replace the York fans.
The contracting officer sent plaintiffs Mr. Butler a scathing letter dated November 14, 1986. The letter expressed the frustration experienced by the FDA when attempting to perform pre-final inspections. She communicated that when the FDA representatives arrived to perform inspections of certain areas, they were unable to do so because the areas were not yet prepared. The contracting officer stated her understanding of Mr. Butler’s position from his three prior letters (one is in the record) that the only problems remaining were the HVAC balancing and defective paint. She asserted that there were “countless other serious deficiencies in the building.” The contracting officer also suggested that Mr. Butler’s knowledge and analysis as to the state of the project was incomplete and possibly misinformed. With respect to HVAC balancing, she stated that extensive testing of components still must be performed and noted “glaring deficiencies” with respect to Mechanical Equipment Room No. 1 and AHU Nos. 1 and 2, which were set forth in an attachment (it does not appear in the record). Based on these deficiencies, she asserted that plaintiff was not investigating the status of the project. The contracting officer further noted that the AHU casings had air losses as a result of large gaps and a significant condensate carryover problem. Finally, she pronounced as unrealistic Mr. Butler’s December 15, 1986 completion date. In closing, the contracting officer requested a meeting between the FDA and plaintiffs top management to discuss the schedule and FDA damages. It is unclear whether such a meeting took place.
By letter dated December 2,1986, Thomas W. Humen, York’s Senior Sales Engineer, informed Mr. Grandchamp of modifications *197 made to AHU Nos. 1 through 4. The units received new shafts, new bearings, an additional pulley and belt, additional exterior steel bracing on the side of the unit with the sheave, and a modified base support for larger motors. Mr. Humen stated that the changes were necessary so that the units could operate at an increased speed to produce the necessary CFM and static pressure to overcome the system effect. He attached a report with post-modification readings. In the summary of the report, York suggested that AHU Nos. 2 and 3 receive increased 100 horsepower (“hp”) motors to attain the sufficient CFM or static pressure. He stated that the motors of AHU Nos. 1 and 4 may require additional horsepower depending on the system balance results.
A meeting between FDA, plaintiff, and subcontractor representatives was held on December 4, 1986. At the beginning of the meeting, the York representatives were not in attendance. (The attendance page is missing from both exhibits.) Mr. Grandchamp stated that as a result of the October 1 meeting Kirlin defined the fans as the probable cause of the air balancing problems. He mentioned that after that meeting York requested an opportunity to make the system work. Kirlin gave York four weeks to attempt to do so. According to Mr. Grand-champ, Comfort Control verified that the modifications achieved the specified CFM and static pressure for AHU No. 2. The problem with the modifications was that the 75 hp motor ran at 110 amperes, which exceeded the motor’s safe current operating range. Mr. Grandchamp explained that this was the reason that York proposed 100 hp motors.
Mr. Grandchamp informed those present that Kirlin advised York to procure four 100 hp motors. He also stated that he would acknowledge the increased motor size as outside the specifications. The projected completion schedule was three to four weeks to rough balance, two weeks to final balance, and two weeks to start the training and walk through the remaining equipment. He stated that he was hoping for a turnover date of February 1.
Mr. Hoffman questioned why shop drawings were not formally submitted for the modifications and noted that data from the original submittals were no longer valid for the modified fans. Mr. Grandchamp stated that the York representatives would respond to these questions, but added that the present units were not stock items. Mr. Hoffman responded that certified fan curves are the only means to predict increases in performance and capability for additional CFM at a higher speed. He emphasized that the FDA would be unable to approve the modifications and accept the units without performance or test data to show that no problems would surface. He also mentioned that all indications were that the other fan manufacturers could meet the requirements with 75 hp motors.
Mr. Megna expressed that the original certified York fan data were relied upon in approving the submittal. According to Mr. Megna, if the FDA accepted the units without such data, it would have no way of knowing where the modified units were operating on the fan curve, because the FDA had no such curve. Mr. Grandchamp stated that he notified plaintiff of the changes and that the specifications allow sheave changes at no additional cost to the contract. Mr. Megna replied that the specifications do not allow the major changes of modified shaft and bearings and a reinforced casing. Mr. Grandchamp stated that he left the October 1 meeting with the knowledge that there was a fan problem. The measures taken by York were an attempt to solve this problem. The contracting officer stated that these modifications were unauthorized because there was no approved shop drawing submittal. Mr. Grandchamp responded that he orally had notified Mr. Penn of the modifications and had no data from York to submit. He also noted that FDA inspectors were aware of the modifications. The contracting officer responded that no one with approval authority was apprised.
Mr. Grandchamp asserted that no work outside the specifications was performed, that the same model that was approved was still in place at the project, and that York had made a simple shaft change. Mr. Megna *198 disagreed, stating that not just a motor change was involved, but a major fan change. He said that LBC & W had approved a submittal that no longer applied to the units and that a 100 hp motor was beyond the specifications. Mr. Megna emphasized that under no circumstances would he accept a custom fan curve. Mr. Grandchamp responded that the system designed by the design engineer was not an off-the-shelf system. Mr. Megna stated that he specified a cabinet fan with performance requirements and asserted that other manufacturers’ fans could be shown to meet these requirements. It was Mr. Grandchamp’s position that he had stayed within the specification requirements and that he would assume full responsibility for what needed to be done. Mr. Megna noted that the specifications contain performance requirements to be met by the contractor and that Kirlin was responsible for guaranteeing performance. Mr. Grand-champ expressed that he was following this approach and had proceeded at his own risk, but noted that the fans could not be certified without the change to a 100 hp motor. Mr. Megna stated his opinion that a Trane cabinet fan would perform, but the York fan would not.
Mr. Grandchamp responded to Mr. Hoffman’s question why York failed to submit a proper fan with the statement that York honestly believed that its fan would perform. When asked how the FDA knew the Trane fan would perform, Mr. Megna responded that the published data so stated.
The three York representatives arrived at this point in the meeting. The contracting officer reviewed with the representatives what had been discussed up to that point. York’s Mr. Humen informed her that preparing a submittal would not be a problem. He indicated however, that the 100 hp motor was the only equipment that could meet the specified CFM and total static pressure.
Mr. Megna gave his recommendation that the FDA not consider the proposed modifications unless the following conditions were met: 1) Proper credit would be given for all increased energy costs; 2) all parties agreed no claim would be brought against the FDA; 3) there would be no increase in sound levels from the increased RPM; and 4) the FDA would be given an extended warranty. Mr. Megna explained that Air-Conditioning and Refrigeration Institute (“ARI”) does not certify a fan for a particular application, but by product line. One of the York representatives stated that an individual fan could be factory tested in accord with ARI procedures and then the package could be reviewed and approved by ARI. This was the process by which the York unit could become ARI-certified. Mr. Megna remarked that the fan should be tested at the factory. The results then could be submitted as ARI data and the FDA would know whether the fan curve was unstable. The representative informed the FDA that, when the specifications were written, there was no ARI data available for fans with variable inlet vanes.
The contracting officer asked York to present a complete submittal related to the modified fans that included the advantages and disadvantages of the proposed modifications. She inquired as to the length of time necessary to test modified units and was informed that building a replica of the AHU would take some time. The representative later stated that the testing probably could be conducted in eight weeks.
Mr. Hoffman inquired as to what York perceived to be the design problem. The representative responded that the inlet and outlet connections and transitions created most of the problem. Mr. Megna mentioned that he was aware of other manufacturers installing fans that worked in similar systems. The representative responded that York has nine other fans working properly at the project. He later stated that in York’s opinion the problem is the design flow and the system effects. The term “system effects” referred to his suggestion that the actual system, as constructed, affected the output of the AHUs.
The contracting officer requested that York give notice of an intent to file a claim for design deficiencies, if it were going to do so, along with the submittal. Mr. Megna noted that the static pressure was still below the required level and that the modified RPM of 1,773 exceeded the original submittal of 1,500 RPM.
*199 By letter dated December 15, 1986, Contracting Officer Donald W. Broome instructed plaintiff to replace the AHU No. 4 York fan with a 33-inch diameter Trane high pressure cabinet fan. The fan supplied was to be capable of achieving 34,800 CFM at 7.86 TSP, 1,569 RPM and 71.6 Brake Horsepower (“Bhp”) by means of a 75 hp high-efficiency motor. Plaintiff was reminded to use the regular submittal process. Mr. Broome informed plaintiff that if “this test” revealed that the existing work was defective, the cost would be borne by plaintiff.
The contracting officer informed plaintiff in a letter of December 22, 1986, that the FDA could not consider the modifications performed by York discussed at the December 4 meeting unless plaintiff provided further information such as: 1) an acceptable submittal; 2) a complete description of changes including mechanical and electrical; 3) certified ARI test data; 4) detailed sound level information; and 5) an estimate of increased energy costs. On January 8, 1987, Kirlin sent the Trane fan submittal to plaintiff.
In a letter dated January 15, 1987, Mr. Wilkins informed Mr. Grandchamp that a normal stock York fan tested at an AMCA facility in Illinois could meet the specification requirements operating at 1,425 RPM and using less than 75 Bhp. He explained that if the unit were operated above 1,425 RPM, then it would have to be modified like the other units at the job site.
On January 29,1987, Kirlin wrote plaintiff, providing the information requested by the FDA in order to approve the following York modifications: 1) The existing shafts were changed from a %-inch to /¿-inch wall thickness; 2) the external bearings were changed to a heavier weight from 2 & % to 2 & x%\ 3) the pulley was changed from a four-belt to a five-belt pulley; 4) the casing was reinforced and the isolation was replaced to receive a 100 hp motor. Mr. Grandchamp suggested that, except for the RPM, the modifications did not change the fan characteristics and therefore the unit was still a model CS-666-FO AFHP with variable inlet vanes. He noted that another non-modified model CS-666-FO AFHP with variable inlet vanes and a 75 hp motor tested at an Illinois AMCAcertified facility showed the unit capable of producing 9.28 inches static pressure at 35,-430 CFM thereby exceeding the project requirements. However, the test results showed that to produce these figures, the fan was tested at approximately 1,541 RPM, rather than at the 1,400 rating. Sound levels were unavailable for the increased RPM of the modified York fans.
In a letter to plaintiff dated February 17, 1987, Mr. Grandchamp set forth Kirlin’s position and gave an overview of the airflow problem. He reiterated Kirlin’s opinion that the low airflow problem was caused by a design deficiency. He further asserted that Kirlin had fully complied with the contract requirements in that a standard York model 666 fan was shown to meet the contract requirements and the air systems were installed according to the contract documents. He suggested that Kirlin’s role was as mechanical contractor, not design engineer; yet Kirlin went the extra step of suggesting ways to remedy what was obviously a design problem. He next advised plaintiff of Kirlin’s position that the Trane test results would be inconclusive contractually. He noted that the system deficiency had caused Kirlin severe financial hardship and requested that plaintiff attempt to convey to the FDA the urgency of the matter. Finally, Mr. Grand-champ advised plaintiff that it would be a change to its subcontract if the FDA directive changed the specifications. He suggested that Kirlin had experienced delay since March 1986 and would submit to plaintiff the direct and impact costs related to the changed and delayed work as soon as they could be ascertained based on the FDA’s directive.
Plaintiff forwarded Kirlin’s letter of February 17 to the FDA under a cover letter dated February 18, 1987. The cover letter reiterated Kirlin’s position and also stated that Kirlin hoped the FDA did not intend to find the York fan defective if the Trane fan happened to work. The letter also informed the FDA of plaintiffs intent to submit a claim for the extra costs and delays that resulted from the airflow balancing problem.
*200 On March 2, 1987, the contracting officer responded to plaintiffs letter of January 30, 1987, which presented the submission for the York fan modifications rejecting the submission and disagreeing with York’s conclusion about the system effect. She asserted that, at worst, the “additional system effect” was no greater than 0.3 inches static pressure, being well under the extra 1.8 inches available during the 1,545 RPM testing. She also mentioned that tests showed the contract requirements could be met by combining two AHUs.
In a letter dated March 30, 1987, Albert Sanchez, Vice President of Syska & Hennessy, who had been hired by the FDA as a consultant, gave Mr. Hoffman his observations and recommendations after having witnessed a March 16 test performed by Comfort Control for plaintiff. The test involved using AHU No. 4 to supply either Air System Nos. 1 or 3. Mr. Sanchez stated that the test demonstrated that the Trane unit “apparently” could meet the design requirements. Measurements were taken at various points in the systems. With AHU No. 4 supplying Air System No. 1, the readings at a measuring point located just after the cross-connection to Air System No. 1 were lower than design. At a measuring point just downstream of AHU No. 4 near the beginning of the cross-connection duct, however, the readings were considerably above the System No. 1 requirements and even slightly above the AHU No. 4 rated capacity. With AHU No. 4 supplying Air System No. 3, readings taken just after the connection to Air System No. 3 were slightly below design. Yet at a measuring point just downstream of AHU No. 4, the readings were above the Air System No. 3 requirements and the AHU No. 4 rated capacity. Additional measurements at the end of the distribution system were taken to ensure that the Trane fan could provide sufficient air to the distribution system. Depending on the CVR damper adjustment, the fan delivered from below to just at the design airflow for that portion of Air System No. 1. The fan delivered 425 CFM, whereas the design requirement is 570 CFM for that portion of Air System No. 3.
Mr. Sanchez concluded that, based on the testing, the Trane unit was capable of supplying sufficient airflow for the two systems tested. He suggested that the unit could be expected to meet the system requirements after the systems were checked, adjusted and air balanced. He explained that the airflow losses in the cross-connection duct were above what was expected and suggested that duct leakage or possibly damper leakage could be the cause. Mr. Sanchez set forth a checklist and a testing regimen for the system components before attempting to balance the system. He recommended that the York units be replaced with Trane units. He also stated that the tests apparently indicated that the distribution system was not at fault for the low airflow. In order to make a more definitive recommendation from more conclusive data, he suggested that testing comparisons be made between both the York and Trane fan unit operations.
By letter of April 9, 1987, the contracting officer confirmed a conversation with plaintiff regarding the fans. She stated that she had been advised that neither plaintiff nor its subcontractor was able to show that the York fans met the performance criteria of the contract. She asserted that the March 16, 1987 testing showed the Trane fan was capable of meeting the design requirements. She directed plaintiff to furnish the equipment necessary to replace AHU Nos. 1-3 with Trane fans in light of plaintiff’s “unwillingness and/or inability to independently analyze or review” the inadequacy of the York units. Finally, the contracting officer informed plaintiff that it had to comply with the normal submittal process with respect to the replacement units.
In a letter dated April 15, 1987, plaintiff requested that the contracting officer identify specifically the performance criteria that the York fans failed to meet. Plaintiff stated that it believed that the fans met the specification criteria, but would still comply with the directive. Contracting Officer Dean in a letter dated May 19, 1987, notified plaintiff that its Trane fan submittal was approved as noted and directed plaintiff to proceed with ordering the fans. She further stated that she would make a decision regarding fan *201 installation immediately after a York fan test which was expected to occur within four to six weeks.
By letter dated May 21,1987, Mr. Sanchez informed Mr. Hoffman that AMCA-certified testing of the York fan at ETL Testing Laboratories, Inc. (“ETL” or “ETL Testing Laboratories”) in Cortland, New York, could not be performed because the fan outlet area of the test duct was too small. Further, ETL was not an AMCA-certified test facility. Apparently, Syska & Hennessy never checked before shipping the fan to New York. Mr. Hoffman and those present decided to run a test even though the results would not be binding in court. The test results showed that the modified fan met the design requirements. All agreed that an AMCA-certified test must be performed and that either AMCA representatives should witness the test at ETL Testing Laboratories or the test should be carried out at an AMCA-certified test facility. After the test Mr. Sanchez stated his opinion that the testing indicated only that the modified fan likely could meet the system requirements and that it was “not unreasonable” to speculate that the unmodified York fans would be unable to meet the system requirements operating at the lower speed of 1,355 RPM.
In a letter dated June 22, 1987, the contracting officer informed plaintiff that she had received oral information that Kirlin would not order the fans unless it received a change order. (She had already given Mr. Grandchamp his requested immediate verbal approval (and a written confirmation) of the Trane fan submittal on May 19 so that the fans could be obtained by June 18.) She stated that because of plaintiff’s failure to follow her directive to order the fans, the FDA was considering partial termination of the contract. She gave plaintiff the opportunity to present within ten days any facts related to the issue. In another letter to plaintiff of June 25, 1987, the contracting officer stated that she was advised on June 23 that plaintiff had the Trane fans in its possession. She directed plaintiff to deliver the fans to the site and submit proposed installation drawings for approval. Plaintiff was instructed to install the Trane fans after approval in AHU Nos. 1 and 2, but not until directed to do so in No. 3.
On July 6,1987, plaintiff forwarded a York letter of June 24 to the FDA requesting that the testing of the modified York fan not be performed at Buffalo Forge Company because Buffalo Forge is one of York’s competitors. York raised the issues of proprietary information and bias as reasons for its request. The contracting officer responded to plaintiff in a letter dated July 14, 1987, stating that the FDA had “vigorously” searched for an independent laboratory where the York fan could be tested at full RPM without any extrapolation. No such facility could be found at which such a true test could be carried out. She informed plaintiff that AMCA officials would be present to observe and certify the test and that plaintiffs own representatives could observe the testing. The FDA must have these tests performed because of allegations by plaintiffs subcontractors that the York fans would work even though they did not perform within the Module I facility. She stated that the FDA had performed a detailed system design analysis that showed no design defects and asserted that an off-the-shelf competitor fan was performing within the system. She expressed that an aetual-RPM test was needed to complete the FDA’s analysis. Finally, she informed plaintiff that it was very important that complete performance curves be developed and that, therefore, the test would take place at Buffalo Forge as planned.
In a letter of August 18,1987, the contracting officer responded to a letter by plaintiff (that does not appear in the record) purportedly asserting that the fan replacement was a change under the contract. She gave notice that the replacement directive resulted from plaintiffs failure to comply with the requirements of the contract and, as such, it was remedial work. The contracting officer also asked for an explanation of plaintiffs letter to Capt. James W. Rolofson, the FDA’s Resident Engineer, which stated that the fan replacement would commence following the York fan testing. This, she stated, was in apparent disregard of her June 25 directive to install the fans. (This installation was to *202 occur after plaintiff received approval of its proposed installation drawings.)
In a letter of November 19, 1987, Contracting Officer Broome informed plaintiff that the FDA had yet to receive promised air balance reports for AHU Nos. 5-13 and instructed that these be sent as soon as possible. This is the first of a number of written requests sent by the contracting officer.
On November 30, 1987, Mr. Sanchez of Syska & Hennessy, the FDA’s consultant, sent the draft report from the Buffalo Forge test of the York unit to the contracting officer. The unit tested came out of AHU No. 4. The unit was tested twice, once using the modified belt and pulley drive and a second time using the original belt and pulley drive. According to Mr. Sanchez, the non-modified fan was incapable of meeting the system requirements and was a marginal selection based on a review of the York catalog data. Mr. Sanchez superimposed the system operating point onto the performance curves from the Buffalo Forge data. He stated that the figure “clearly indicates” that the unmodified fan could not meet the data from York’s catalog. Further, the catalog data showed that the manufacturer does not recommend operating the unit above 8 inches static pressure. A York factory note that related to units with variable inlet vanes states that the unit must be operated below the solid line on the performance table. According to Mr. Sanchez, this table clearly indicated that the limiting speed is below 1,400 RPM. Finally, Mr. Sanchez calculated that based on the fan laws, the York unit would have to operate at 1,464 RPM to deliver the required airflow and static pressure. Defendant’s fan expert at trial calculated about 1,400 RPM.
On December 8, 1987, Capt. Rolofson sent plaintiff a letter expressing his concerns regarding the system. During recent observations with both the supply and exhaust fans operating together, the FDA became concerned with the Ultrateeh gauges and the system performance. First, the Ultratech gauge readings for airflow, static pressure, and control air were examined for overall accuracy and reliability. Second, excessive air leaks both into and from the fan enclosures were found — especially with respect to AHU No. 5 and Exhaust Fan No. 2. Third, during and after rainstorms, water was observed standing both on top of and inside several exhaust fans. Finally, differences were noted with respect to the filter manometer gauge readings located on the fan enclosures and the Johnson Control panel readings.
On December 15, 1987, plaintiff received from the contracting officer a copy of the Syska & Hennessy Draft Report. About the same time, Mr. Grandchamp received a December 18 memorandum communicating the preliminary test results of the Seneca and Comfort Control balance data for Air System Nos. 1 and 2. The memorandum concluded that the Trane unit exceeded the exterior static pressure, but noted that, even after replacing the York fans, the small CVR diffusers still had low airflow.
Donald W. Bast, plaintiffs Construction Manager, forwarded to FDA’s Capt. Rolof-son the results of the preliminary test for AHU Nos. 1 and 2 under a cover letter dated December 21, 1987. Mr. Grandchamp had submitted the results to plaintiff under his own cover letter of the same date in which he stated that the test indicated that the balancing of the systems could not be completed and that Kirlin was awaiting instructions.
The contracting officer threatened plaintiff with partial termination of its contract for default if plaintiff did not respond to questions in her letter dated February 3,1988, on or before February 10,1988. She noted that she was advised by FDA employees that the preliminary air balance data were “grossly incomplete” and that plaintiff was reluctant to give the data after repeated requests that it do so. She related the following with respect to the data: 1) They were incomplete (in Mr. Hoffman's estimation less than 10 percent of the total rough balance data was submitted); 2) they were poorly organized; and 3) they failed to comport with contract specifications that required explicitly that Associated Air Balance Council (“AABC”) procedures be followed. This failure disturbed her in that Seneca, which was once a member of the AABC, lost that status and did not then belong as required by the contract. The contracting officer gave a listing of all *203 data furnished by plaintiff to the FDA which consisted of three reports. The balancing data received by the FDA up to that time related to only nine of the 62 fans in the building. She insisted that data must be submitted for all of the systems. She also stated that she was unaware of the limitations on the available data. She communicated that plaintiff and Mr. Grandehamp had assured her that there was sufficient data to indicate that rough balance could be achieved for AHU Nos. 5-13. Finally, the contracting officer listed specific questions concerning plaintiffs conduct related to the air balancing work.
Most pertinent to the present facts were the questions related to the following areas of concern. She requested that plaintiff provide certified test data from Ultratech, if available, displaying that the static pressure losses across its AMSs and CVRs at the required CFM were equal to or less than the maximum pressure drops listed on Drawing M-65. She also requested that plaintiff state whether Seneca checked its instrument calibration or whether Ultratech field personnel recalibrated their controls, as most readings by Seneca were slightly different from the Ultratech panel readings. With respect to Seneca’s awareness that some CVRs were not factory preset, she asked that plaintiff state whether or not Seneca or Ultratech field personnel ever attempted to reset the CVRs in the field during the testing and balancing procedures, as required by AABC procedures. Also, she requested plaintiff to give the number of readings normally taken at each CVR during balancing, since repeated measurements are required by AABC procedures.
The contracting officer desired further information as to whether or not Ultrateeh field personnel were present during all phases of the testing and balancing. Finally, she asked plaintiff whether it took the position that it had performed an adequate job of trouble-shooting the HVAC system. She stated that a deficiency appeared in this regard and related that the total air delivered to outlets was from 10 to 15 percent below the total CFM at the main fan discharge for AHU Nos. 1-3 and 18 to 25 percent below the total exhaust CFM at the main discharge for Exhaust Fan Nos. 1, 2, 5A, and 35. She expressly noted that this was evidence that excessive air leakage was occurring from some of the air systems for which plaintiff provided data. The FDA would be available to meet with plaintiff on February 16 if the contracting officer received answers to the above questions and additional submittal data.
Mr. Grandehamp responded to the contracting officer's letter of February 3 in a letter to plaintiff dated February 9, 1988. He expressed his puzzlement that a reference to a final test and balance report appeared in the FDA’s comments. Only rough field data sheets were submitted to review the project situation. He stated that it was not Kirlin’s or Seneca’s intent that the data be construed as a final balance report. Some of the comments by the contracting officer show that the data were not properly analyzed nor were they utilized as intended. He mentioned that during balancing procedures, the FDA was present and could have witnessed any readings taken that they desired. Mr. Grandehamp asserted that Seneca is now a fully certified National Environmental Balancing Bureau (“NEBB”) balancing contractor and is a certified AABC contractor under a grandfather clause for purposes of this project. Further, according to Mr. Grand-champ, proper test procedures were utilized, and the AABC procedures were not necessary because the data were not a final balance report. He expressed that it was difficult to accept criticism for submitting incomplete data when Kirlin was reluctant to submit the data because they were incomplete.
Mr. Grandchamp’s answers to the contracting officer’s questions follow. Regarding certified test data for static pressure losses across the AMSs and CVRs, he referenced Drawing M-65 as a schedule based on design calculations, not actual measurements. He explained that the specifications state that the duct size/effective area will remain constant to the inlet of the CVR. He noted that the flanges on the inlet damper reduce the effective area, which may be causing an increased pressure loss that exceeds the loss anticipated by the schedule. It appeared that the “majority of the problems” in the *204 airflow system was directly linked to this CVR inlet sizing, particularly with the smaller CVRs. He informed plaintiff that only the design professional could make a determination whether the pressure drop and its effects were acceptable. Finally, Mr. Grandchamp noted that the CVR construction concerns were raised and discussed some four times during the submittal process and also in the Kirlin’s August 15,1986 letter to which LBC & W responded on August 29 and September 9.
Regarding discrepancies between the Seneca and the Ultratech panel readings, Mr. Grandchamp stated that the readings were “for the most part, close.” He communicated that extensive calibration and other work was performed to resolve any discrepancies and that all CVRs were recalibrated and readjusted to deliver maximum CFM in a joint effort between Seneca, Ultratech, and Kirlin. He referenced an attached Seneca letter of February 9, 1988, for the number of CVR readings taken and stated that representatives from Ultrateeh were present during the majority of the testing and balancing procedures.
Mr. Grandchamp responded to the contracting officer’s pointed question whether plaintiff considered that it had performed an adequate job of trouble-shooting the HVAC system. He asserted that Kirlin and the subcontractors had performed a “more than adequate job” of trouble-shooting, noting that they were not design professionals and that it was not their place to dictate to the professionals the system as planned or its actual capabilities. He stated that it appeared clear to them, and the Seneca data confirmed, that a significant drop in pressure was present across the CVRs, which, he asserted, were designated and installed according to the amended specifications. It was Kirlin’s opinion that the fans were not the problem, but, when directed to replace them, Kirlin did so and that the data from Seneca confirmed that the replacement of the York fans did not solve the CVR and static pressure drop problems. Further, Kirlin believed that the failure to resolve the small CVR issue was resulting in an over-stressing of the ductwork, which was causing leaks. Although Kirlin considered that Seneca was performing properly to date, Kirlin would replace Seneca with Comfort Control in order to perform a complete balance report on one system per AABC and the contract specification procedures. Kirlin deemed an additional test “wasted time, effort and money” since no new information would result; nonetheless, he would direct Comfort Control to perform the testing if the result would be the design professional addressing the actual problem.
4. Unsolved problems with air balancing
On February 16, 1988, the above-referenced meeting took place to discuss the status of the air balancing efforts. Mr. Sanchez for Syska & Hennessy stated that the data submitted by plaintiff were not sufficient to state that even preliminary balancing was attempted. When the contracting officer questioned the present status of balancing, Mr. Grandchamp replied that Kirlin had yet to reach the set-up stage for AHU Nos. 1-4. He informed those present that they had undertaken investigations to determine the cause of the problem. He stated that he was forced to give all rough data on portions of the set up and his investigation before it was completed.
Jeffrey Robbins, an attorney with the Office of the General Counsel of the DHHS, asked Kirlin whether sufficient information on balancing for AHU Nos. 1-13 was available to identify the small CVRs as the problem. He also asked whether Kirlin could be certain that this was the cause if full “set up” had not yet been achieved for AHU Nos. 1-4. Mr. Grandchamp replied that his rough interpretation of the data obtained up to that point indicated the problem, but that what was done was not the same as “rough balance.” Mr. Day, Kirlin’s President, stated that he had no way of knowing whether all fans met the contract performance criteria. Mr. Grandchamp added that supply side fans 1-13 were performing according to schedule, but the same was not the case for the exhaust side. Mr. Sanchez commented that, from the submittal data, it did not appear that data were available for all of the fans.
The contracting officer stated that, based on information available to the FDA (appar *205 ently from the FDA inspector’s log of all personnel on site), Ultratech was not assisting with the balancing. Mr. Grandchamp responded that work tickets proved that both Ultratech and Johnson Controls were working. He noted that neither was on site full-time, but that Kirlin had coordinated with both to make adjustments. The contracting officer also asked Kirlin to state whether all of the ductwork was cheeked to ensure against any leakage problems. Mr. Grand-champ replied that Kirlin had checked all ductwork for leakage. The contracting officer reminded Kirlin that the responsibility was continuing in nature. Mr. Day communicated that the complete system was checked and that in every case where a leak was found corrective work was performed. He noted that any system will have some leakage. Mr. Grandchamp added that FDA inspectors observed the ductwork, read the test gauge measurements, and signed off that the duct had been properly sealed. The contracting officer responded that even if the ductwork had been inspected, acceptance was not signified.
The contracting officer remarked that Kir-lin had indicated that sufficient airflow was not achievable based on the static pressure and airflow readings at each AMS. When she asked Mr. Grandchamp whether other stations had been checked in AHU Nos. 1-^á, Mr. Grandchamp informed her that, while such data were available for other systems, they were not available for AHU Nos. 1-4 because rough balance had not been attempted yet. Because these systems were still in the “setting up” stage, he explained that Kirlin could not obtain rough balance information after the installation of the four Trane fans. When questioned whether AHU Nos. 5-13 were in rough balance, he replied that all of the preliminary data demonstrated that they were. The contracting officer noted that she had requested airflow and static pressure readings for all major systems and was informed that Kirlin was not able to produce such information. She asserted that the data submitted contained no readings from the fan to the end of the ducts. Mr. Grandchamp asserted that insufficient time was preventing them from providing anything beyond preliminary information. She again requested rough balance data on AHU Nos. 1-13.
The contracting officer asked for the status of the Ultratech CVR certified test data. Mr. Grandchamp informed her that no such data were available at that time. She asked if such testing was ever performed and noted that, during the submittal process, the FDA or the design engineer was told that the test data were available and would be forwarded. Mr. Grandchamp responded to the contracting officer’s suggestion that some of the CVRs be tested in a certified laboratory that they had been tested when installed. When she asserted that the pressure losses from Seneca were roughly seven times those represented by the submittal, Mr. Grandchamp stated that Seneca had measured static pressure and the velocity pressure was given in the submittal. The FDA’s Mr. Hoffman asserted that Submittal Revision No. 3 gave a table describing pressure drops across the CVRs, and the contracting officer requested that the contractor investigate this issue. She noted that Ultratech informed Syska & Hennessy that the CVRs had never been tested. She communicated that there were three divergent figures — the design static pressure, Ultratech’s represented static pressure, and the measured field static pressure. She asked Mr. Grandchamp whether the CVR pressure drop was any different since the fan replacement, and he replied that none had been taken post-fan replacement.
When Mr. Hoffman questioned Kirlin whether the design airflow was achieved at the diffusers, Mr. Grandchamp stated that in August 1986 it was not achieved, but in December 1987 it was, except areas affected by the small CVRs. Mr. Grandchamp responded to the contracting officer’s inquiry that he had no such documentation on whether Seneca or Ultratech had recalibrated controls to coincide with one another, but again noted that the readings were close. Mr. Megna agreed, stating that Seneca’s data would be used where there were any discrepancies. When the contracting officer questioned why the panels did not register at zero, Mr. Grandchamp informed her that the adjustments made to give accuracy to airflow read *206 ings were the reason. He also informed her that three readings were taken by Seneca at each CVR.
Mr. Megna queried Kirlin as to what assurances it could offer that no excess leakage was taking place in the duct system. A representative from either Kirlin or plaintiff stated that prior to starting up the AHUs, the ductwork and dampers had been carefully checked. Mr. Grandchamp told Mr. Meg-na that Kirlin had done everything possible to seal leaks and that it was his opinion that it had done enough to determine that excessive pressure drops existed. Mr. Megna asserted that the pressure drop documentation should be checked again, stating that he could not believe the CVRs could create such a loss. The representative stated that there was documentation of the significant static pressure losses and that possibly the fan capacity should be increased. Mr. Megna stated that the fan should only have to deliver what is specified. Mr. Grandchamp explained that Kirlin had done all that it could to find the cause of the problem other than have Comfort Control test at the contracting officer’s direction. The contracting officer questioned why she should direct that this step be taken. Andrew W. Stephenson, Kir-lin’s counsel, communicated that the data taken to date point to a problem, but the data were insufficient to make recommendations. He stated that Kirlin would continue to go forward and that more data was necessary to reach a full, complete conclusion. Mr. Stephenson told the contracting officer that the small CVRs obviously had something to do with the problem, but he could not pinpoint them as the only problem. The contracting officer also questioned why she was advised that the balancing was not possible if the data were incomplete. Mr. Grand-champ responded that Kirlin had been working diligently and would continue to investigate. Mr. Stephenson stated that Kirlin was not trying to state that the CVRs were the only problem; there could be some duct leakage.
The contracting officer next stated that in July 1986 she was informed that the systems would be balanced within six weeks. In December 1986 plaintiff’s vice president told her the problem had been identified as the fans and was being resolved. In 1988 she was still requesting data to illuminate the problem. To avoid extra work she suggested that, additional data, if necessary, could be witnessed by representatives in the field, so that only a final balancing report would have to be submitted. FDA technical representatives, she stated, had advised her that the balancing attempts appeared to have been disorganized and noncompliant. The FDA therefore could not determine if the balancing effort had been properly carried out. Mr. Stephenson stated that Kirlin was offering to hire Comfort Control for two to three weeks of testing.
Mr. Robbins questioned why Kirlin did not independently investigate the CVR problem. Mr. Stephenson responded that this work would be performed if the contracting officer issued a directive. He asserted that Kirlin had no engineering responsibility and would not try to second-guess the design engineers. He further stated that he was certain that the results that Seneca obtained were not what the design engineer contemplated. Mr. Robbins stated that he was of the opinion that certified independent laboratory test data would be the first step in investigating the CVR problem. When Mr. Hoffman asserted that Kirlin’s submittal represented the CVRs as being capable of performing in a certain manner, Mr. Stephenson replied that Kirlin had made no such representation other than that the equipment would meet the contract specifications. He added that Kirlin was offering to direct Comfort Control to test the next week and was requesting that the FDA have a representative present. Mr. Robbins asserted that Kirlin, as a sophisticated contractor, should have assured that field testing was correct and that the system was operating properly. Mr. Grandchamp and Mr. Stephenson responded that they knew the system was not operating properly, but that this problem was for the design engineer to resolve and that the FDA needed to issue a directive.
Mr. Hoffman stated that the CVRs would be laboratory tested to ascertain if they met the shop drawing submission schedule. When he requested that Mr. Stephenson comment, operating under the assumption *207 that Kirlin had represented that its submission would perform in a certain manner, Mr. Grandchamp asserted that no such assumption could be made.
Raymond A. Kabrick, plaintiffs President and General Manager, asked for someone to comment on LBC & Ws 1986 correspondence in which it was asserted that the design engineer had tested the CVRs and the ductwork to determine that these components were not the source of the problems. Mr. Megna replied that, if given adequate air, the system would function based on the August or September 1986 test when both AHU Nos. 1 & 4 supplied airflow to Air System No. 1. Mr. Kabrick asked whether the FDA was ignoring this correspondence. The contracting officer stated that the FDA was using the entire record in its attempt to understand and analyze the problem. When Mr. Stephenson asserted that a problem was present requiring solution, Mr. Megna took the position that Kirlin had prejudged the system without adequate testing. He noted that at the meeting he had heard admissions that the ductwork could still be leaking and mentioned that it was Kirlin’s responsibility to construct a tight duet system. Until the duct system was tight, the burden of proof was on Kirlin. Mr. Stephenson again mentioned Seneca’s findings (that low airflow persisted even after the fan replacement), and Mr. Megna responded stating that type of finding could be made when one prejudges.
When Mr. Robbins asserted that a more intelligent discussion might take place if the data were more complete and properly organized, Mr. Day informed those present that he knew such an objection would be raised and that was why Kirlin sent the data only under the threat of termination for default. The contracting officer stated that she also had a concern that the data presented be complete and asked Mr. Day how much longer she should have waited. Mr. Day replied that he should not have been threatened with termination. The contracting officer stated that plaintiff had issued the threat, noting that she received a letter stating that the system could not be balanced. She asked the contractor to reconcile the two opposite arguments in that she was told that Kirlin should have been given more time, and yet she was also told that the system could not be balanced.
Mr. Day proposed that one unit be tested thoroughly during a three-week period. Plaintiffs Mr. Kabrick stated that the testing could be performed with FDA representatives present observing and recording the data. Mr. Robbins emphasized that their representatives would be present only for observation and that their attendance would not create any joint responsibility. Mr. Grandchamp suggested that the system with the most CVRs be selected for testing. He asserted that AHU Nos. 2 or 3 be chosen because he believed that now AHU No. 1 had an oversized fan. When Mr. Kabrick questioned whether one of the AHU Nos. 5-15 (there are only 13 AHUs) might yield faster results, Mr. Grandchamp responded that he wanted to start with the worst possible condition. Mr. Stephenson stated that all of the data for AHU Nos. 5-13 would be given to the FDA The contracting officer questioned if there was general agreement that Comfort Control would try to balance one system with FDA representatives, observing that the data would be complete and organized for submit-tal to the FDA. Mr. Stephenson asked which AHU would be selected and suggested that AHU No. 2 would be best since it has the largest number of small CVRs. Mr. Grandchamp stated his desire that the FDA representatives take a more active role in the balancing, but the contracting officer responded that they would be present for observation only.
Mr. Megna questioned how performance could be impossible if the design engineer relied upon a shop drawing submission in approving the equipment. He stated that, in effect, he had required assurance from the equipment supplier that it would perform before it was approved. He asked Kirlin if it had found anything peculiar about this system as compared with other similar systems. Mr. Stephenson stated that there was a significant change in the solicitation addenda changing the CVR to require a single housing. Mr. Megna disputed that this was a change from the original requirement of the *208 solicitation. When Mr. Day asked Mr. Meg-na if he was aware of a CVR that would perform in accordance with Drawing M-65, Mr. Megna replied that he could pull off-the-shelf data on Cambridge or Air Monitor equipment. He had spoken with Air Monitor and Cambridge representatives when he designed the system. Mr. Grandchamp questioned whether Air Monitor could offer an alternative if asked to do so. Mr. Megna replied that in designing a system, he would simply go to the Air Monitor Catalog and add from the American Society of Heating, Refrigerating and Air Conditioning Engineers (“ASHRAE”) Guide to housing, pressure drops, and so forth. He stated that a CVR should function when partially closed; Mr. Grandchamp stated that this had been the case with the large CVRs.
Mr. Megna noted that during the CVR submittal process he had expressed concern about the damper frame and the ability to meet the performance criteria. He stated that testing data were requested and that the design engineer was given assurances that the equipment met the schedule. Mr. Stephenson was uncertain as to whether static pressure drops were submitted. When he pointed out that Submittal Revision No. 2 reflected approval of the CVRs, Mr. Hoffman asserted that certain portions of Revision No. 3 were essential to approving the CVRs. Mr. Megna took the position that the Revision No. 3 pressure drops were lower than those of the schedule. Mr. Hoffman stated that the reported pressure drops, eight to ten times what was represented by Ultra-tech, were far greater than anything anticipated in view of the Revision No. 3 assurances. Mr. Stephenson stated that Kiriin was concerned about pressure drops, and he inquired whether the CVR was an off-the-shelf item. Mr. Megna responded that the CVR is a basic air measurement device, which should present a low pressure drop. He noted that Ultratech had represented a lower pressure drop than anticipated. If the damper and frame were added, a slightly increased pressure drop would be expected. He also stated that Ultratech alleged that the total drop was lower than others with the frame and damper. Mr. Megna asserted that the FDA should have been advised before the bid opening if the CVRs could not perform as scheduled because of impossibility. He stated that it was noted that during the submittal process that certified test data had been requested and promised. (This request and promise were unsubstantiated at trial.)
When Mr. Robbins stated that maybe it would be necessary to go to Cambridge or Air Monitor to have a CVR built for testing, the contracting officer emphasized that the FDA wanted the building. After Mr. Stephenson noted that about 500 of the 800 CVRs were small, Mr. Robbins asked if they had achieved balance in areas where no small CVRs were located. Mr. Stephenson thought that some branches were balanced, but added that Comfort Control would cheek this point. Mr. Hoffman asserted that this was not a subsidiary issue and that the FDA should have such information. Mr. Grand-champ indicated that Comfort Control was not AABC certified, but is a member of the NEBB and informed the contracting officer that Seneca was so certified under a grandfather clause for purposes of the Module I project.
By letter dated February 26, 1988, the contracting officer informed plaintiff that she never had referenced “a final test and balance report,” as Mr. Grandchamp stated in his February 9 letter. Much of the data attached to that letter were old data submitted in August 1986 and therefore irrelevant because they were obtained before the York fans were replaced. She noted that plaintiff and Kiriin had previously acknowledged at meetings and in a letter that the York fans were unable to achieve the performance criteria. See supra at p. 199.
The FDA had never received a “consistent, definitive answer” on the integrity of the ductwork. The contracting officer had been reassured in 1986 that all leaks were “thoroughly investigated and corrected.” Then in March 1987 the FDA and Syska & Hennessy found “significant leakage in the crossover duct.” FDA technical representatives had found absurd Kirlin’s assertion that the failure to resolve the small CVR issue had caused the ductwork to be over-stressed.
*209 The contracting officer also communicated that she had never received consistent or definitive answers regarding the status of AHU Nos. 5-13. She recounted to plaintiff how she had received a status sheet in July 1986 (from plaintiffs Mr. Penn) which advised her that these AHUs were performing as designed. Even after requesting the status, she did not receive any balance information concerning these units. Later, on February 10, 1988, she was informed by Kirlin that these units were not in rough balance. Now, at the February 16 meeting, she asserted that Mr. Grandchamp reported that they were in rough balance.
The contracting officer also noted that the FDA had questioned whether the balancing efforts of Seneca, Ultratech, and Johnson Controls were “consistent and continuous” after the Trane units were installed on November 1, 1987. She discounted plaintiffs assertion that airflow and static pressure readings could not be obtained until balancing took place and asserted that such data should have been recorded before plaintiff attributed the balancing problems to the CVRs.
The contracting officer characterized plaintiffs response to the request for certified CVR test data as an attempt to assail the system design and as nonresponsive. She asserted that the design engineer relied upon the contractor’s representations regarding the AMSs and the CVRs when the submittal was approved and that Ultratech had advised that the actual pressure drops were much larger than those outl

[Text truncated at 120,000 characters. The full text is on the page linked above.]

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6644928. Public record. Not legal advice.