# CEMS, Inc. v. United States

> United States Court of Federal Claims · November 5, 2003 · 59 Fed. Cl. 168

URL: https://www.frixlaw.com/law-library/cases/6652435

## Case

- **Full name:** CEMS, INC. v. UNITED STATES
- **Court:** United States Court of Federal Claims
- **Decided:** November 5, 2003
- **Citations:** 59 Fed. Cl. 168; 2003 U.S. Claims LEXIS 324; 2003 WL 22533158
- **Precedential status:** Published
- **Opinion:** Opinion of the court by Horn
- **Judges:** Horn
- **Cited by:** 13 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/6652435

## How later opinions describe it (automated extraction)

- concluding a contracting officer’s decision to suspend paving work on a bicycle path for almost five months due to weather conditions was reasonable

## Opinion text

OPINION
HORN, Judge.
The plaintiff, CEMS, Inc. (CEMS), filed a complaint in this court arising out of contract no. DTFH70-98-C-00011 for the construction of a bicycle path on a portion of the Historic Columbia River Highway in Cascade Locks, Oregon. On April 6, 1998, the Department of Transportation, Federal Highway Administration (FHA), Western Federal Lands Highway Division awarded the contract to CEMS for the construction of the bicycle path on a 3.888 kilometer portion of the Historic Columbia River Highway between the Columbia Fish Hatchery and the Bridge of the Gods, in the amount of $1,676,154.00. The plaintiffs complaint alleges “changes, delays and other compensa-ble acts or omissions of the FHA,” and requests an equitable adjustment under the terms of the contract, and such further relief as is appropriate.
The plaintiff originally filed three separate appeals before the Department of Transportation Board of Contract Appeals (DOTBCA) arising under CEMS’ first certified claim to the contracting officer (CO). During the pendency of the plaintiffs appeals before the DOTBCA, the plaintiff submitted a second, certified, comprehensive claim to the CO, including sixty-two separate claims. Following the denial of many of plaintiffs claims by the CO, 1 CEMS filed its complaint in this *173 court. The plaintiff subsequently filed a motion to consolidate the DOTBCA appeals with this case. The court granted the plaintiffs motion and consolidated the plaintiffs DOTBCA appeals with the above captioned case. Following the plaintiffs voluntary dismissal of certain claims, and the settlement of additional claims preceding trial in this case, the plaintiff seeks $1,241,203.70 in compensation for numerous claims under the contract. Although listed separately by the parties, many of the plaintiffs claims are related in subject matter, but occurred’ at different intervals on the bicycle path. Based on the presentation of the evidence at trial by the parties, the court’s opinion has grouped the plaintiffs claims involving similar subject matter to avoid repetition.
FINDINGS OF FACT
I. Claim Al — Government Delayed the Notice to Proceed
The FHA awarded the contract at issue to CEMS on April 6, 1998. The contract specified performance was to begin within ten calendar days after receipt of the notice to proceed. The contract was to be completed on or before September 30, 1998, “subject to such extensions as may be authorized by the terms of the contract and the specifications made a part thereof.” The contract specified that the completion date of September 30, 1998 was based on the assumption that CEMS would receive the notice to proceed by April 1, 1998. The contract further provided that:
The completion date will be extended by the number of calendar days after the above date that the contractor receives the notice to proceed, except to the extent that the delay in issuance of the notice to proceed results from the failure of the contractor to execute the contract and give the required performance and payment bonds within the time specified in the offer.
CO Parsons, by letter dated April 6, 1998, notified CEMS of the award of the contract and stated that the plaintiffs “offer of $1,674,154.00 for construction of the above project is accepted.” The April 6,1998 letter by CO Parsons indicating the bid amount was type-written in the amount of $1,674,154.00. On April 14, 1998, CEMS transmitted to the FHA performance and payment bonds in the FHA requested amounts of $1,674,154.00 and $689,661.60, respectively. The April 14, 1998 transmittal indicated that the FHA received the performance and payment bonds, notes that the bonds were in the incorrect amounts, and that the incorrect performance and payment bonds were returned on April 16, 1998 to CEMS. CEMS submitted corrected performance and payment bonds in the amount of $1,676,154.00 and $670,461.60, respectively, on April 16, 1998, with the FHA indicating receipt of the corrected bonds on that same date.
On April 16, 1998, the FHA provided the plaintiff with the notice to proceed on the bicycle path contract. The April 16, 1998 notice to proceed indicated that as a result of the government’s delay, the contract was not awarded until April 6,1998, and although the government was prepared to issue the notice to proceed on April 13,1998, the FHA stated that as a result of the plaintiffs failure to provide correct performance and payment bonds, the issuance of the notice to proceed was delayed. The April 16, 1998 FHA letter stated, “the Fixed Completion Date is extended by 12 calendar days, to October 12, 1998.” On April 23,1998, CEMS notified the defendant that due to the delay in the issuance of the notice to proceed, the plaintiff was requesting an extension of the contract completion date of fifteen days, until October 15,1988.
On June 12, 1998, the parties executed a negotiation memorandum for contract modification no. 1. The negotiation memorandum and contract modification no. 1, although not explicitly addressing the delay in the issuance of the notice to proceed, noted the following, “On the 20th of April 1998, CEMS, Inc. receives [sic] the Notice to Proceed in- *174 eluding the revised Fixed Completion Date of October 12,1998.”
At the trial of this matter, David Conway, the president and owner of CEMS and the first project superintendent on the bicycle path contract, 2 testified that the initial correspondence by the FHA regarding the performance and payment bonds requested an incorrect amount for the bonds. Mr. Conway stated that the FHA subsequently requested corrected bonds once the error was discovered and CEMS submitted the performance and payment bonds in the corrected amount. According to Mr. Conway, prior to the issuance of the notice to proceed, CEMS checked with the subcontractors and suppliers, walked the project site, and began gathering scheduling information. Mr. Conway further testified that CEMS lost productivity because CEMS employees and equipment were idle or underutilized until the project could proceed. As a result of the delay in the issuance of the notice to proceed and the failure to conduct a preconstruction conference almost two weeks after the notice to proceed, Mr. Conway stated that he “couldn’t see how we were going to complete by our scheduled deadline____”
The contracting officer’s final decision denied CEMS’ claim for an equitable adjustment for the delay in the issuance of the notice to proceed because it was determined that CEMS had already been granted a sixteen day extension for the delay, and that it was a reasonable delay for which CEMS was not entitled to an equitable adjustment. The contracting officer’s final decision also determined that CEMS was responsible for three days of the delay due to the submission of payment and performance bonds in an incorrect amount. CO Parsons’ testimony at trial regarding the delay in issuing the notice to proceed indicated that CEMS was afforded a “day-for-day” extension of contract time. CO Parsons testified that the original bid opening date was delayed by the FHA from March 10,1998 to March 20, 1998, and it was his election not to amend the notice to proceed date, but allow for an extension of contract time if the issuance of the notice to proceed was delayed. Although recognizing that due to a bid opening date of March 20, 1998, the timeframe for the issuance of the notice to proceed by April 1, 1998 could be difficult, CO Parsons testified:
Well, we had sufficient time to award in advance of April 1 to basically meet the April 1st date, but at that time I was relying upon awarding as soon as we might in allowing for a day-for-day shift in that period of performance that clause set out and allowed.
CO Parsons further testified that, based on his experience, the period of time normally required between bid opening and the issuance of the notice to proceed is “four-plus-or-minus weeks” and eleven days was “unduly short” to issue the notice to proceed on April 1,1998, with a bid opening of March 20, 1998.
The contracting officer’s final decision also concluded that the incorrect performance and payment bonds submitted by the plaintiff on April 14, 1998, caused a three day delay charged to the plaintiff. During cross-examination, CO Parsons was shown a copy of his April 6, 1998 letter notifying CEMS of the award of the contract and the amount of CEMS’ bid. CO Parsons stated that after a review of the April 6,1998 letter in court, his contracting officer’s final decision had incorrectly charged CEMS with three days of delay for incorrect performance and payment bonds due to the use of the incorrect bid amount in his April 6,1998 letter.
II. A2 — Government enforcement of excessively rigid and arbitrary surface tolerances for subgrade and aggregate courses
The construction plans and drawings for the bicycle path contract state that the type *175 of construction involves grading, base, paving, retaining walls, and a pedestrian underpass under a portion of Interstate Highway 84 (1-84). The contract construction drawings reference the “Standard Specifications for Construction of Roads and Bridges on Federal Highway Projects, FP-96” (FP-96). The contract incorporates the FP-96 into the contract and provides Special Contract Requirements which amend and supplement the FP-96. The FP-96 provides the following language in its preface: “These Standard Specifications for the Construction of Roads and Bridges on Federal Highway Projects are issued primarily for constructing roads and bridges on Federal Highway [Pjrojects under the direct administration of the Federal Highway Administration. These specifications are cited as ‘FP-96’ indicating Standard Specifications issued in 1996.”
The FP-96 provides definitional terms for various phases of construction, as well as overall specifications for the bicycle path construction. Subsection 101.02 of the FP-96 explains the specifications format and provides the following:
101.02 Specifications Format. These specifications are divided into 10 Divisions. Division 100 consists of general contract requirements for which no direct payment is made. The requirements contained in Division 100 are applicable to all contracts. Division 150 consists of project contract requirements that are applicable to all contracts. Work under Division 150 is paid for directly when there is a pay item in the bid schedule. When there is no pay item in the bid schedule, no direct payment is made.
Divisions 200 through 600 consist of construction contract requirements for specific items of work. Work under these Divisions is paid for directly or indirectly according to Subsection 109.05 and the Section ordering the work. Division 700 contains the material requirements for Divisions 150 through 600. No direct payment is made in Division 700. Payment for material is included as part of the work required in Divisions 150 through 600.
The first three digits of the pay item number identify the Section under which the work is performed.
The plaintiff bid on several pay items under the contract that relate to the construction of the roadway of the bicycle path, which, in turn, relate to the plaintiffs A2 claim. The pay items included: (1) 20401, Roadway Excavation; (2) 30301, Roadway Reconditioning; (3) 30802, Roadway Aggregate Method 2; and (4) 40201, Minor Hot Asphalt.
The contract construction drawings provided “Typical Sections” of various points in the construction of the bicycle path. For the bicycle path surface, the contract construction drawings provide for a roadway aggregate surface overlaid with minor asphalt concrete. The construction of the bicycle path consisted of the placement of a subgrade, 3 followed by the aggregate base course 4 referenced in the construction drawings, and finally the placement of asphalt concrete as the surface course, 5 also depicted in the construction drawings.
For roadway excavation under pay item 20401, the FP-96 states that the work consists of excavating material and constructing embankments. Section 204 of the FP-96 states that the work for roadway excavation includes “furnishing, hauling, stockpiling, placing, disposing, sloping, shaping, compacting, and finishing earthen and rocky material.” The procedure for roadway excavation is directed by the FP-96 in subsection 204.06(a), and states that the contractor shall “[ejxcavate material suitable for backfill, roadbed finishing, topping, or other purposes *176 in a sequence that permits the placement of the excavation directly into its final position or in stockpiles for subsequent placing.”
The aggregate base course that was placed on the road bed for the construction of the bicycle path was designated as pay item 30802, Roadway Aggregate Method 2. Pay item 30802 comes under FP-96 section 308, Minor Crushed Aggregate. The description of the work under FP-96 section 308 states that the “work consists of furnishing and placing crushed aggregate for bedding, back-fill, and roadway aggregate courses.” The designation of “Method 2” for the roadway aggregate designates the specification requirements for the compacting and finishing of the crushed aggregate. The material designated by FP-96 section 308 for Roadway Aggregate Method 2 is designated in FP-96 subsection 308.02, which states that the crushed aggregate must conform to subsection 703.06. Subsection 703.06 of the FP-96 states:
703.06 Crushed Aggregate. Furnish hard, durable particles or fragments of crushed stone or gravel conforming to the size and quality requirements for crushed aggregate material normally used locally in the construction and maintenance of highways by Federal or state agencies. Furnish crushed aggregate with a maximum size of 25 millimeters as determined by AASHTO [American Association of State Highway and Transportation Officials] T 27 and T 11. Furnish crushed aggregate uniformly graded from coarse to fine and free of organic matter, lumps or balls of clay, and other deleterious matter.
Subsection 308.05 of the FP-96 states that the surface of the Roadway Aggregate Method 2 shall be finished according to FP-96 subsection 301.06. Subsection 301.06 provides that, if grade finishing stakes are required, finish the surface to within plus or minus ten millimeters from the stake line and grade. FP-96 subsection 152.01 states that the “work consists of furnishing qualified personnel and necessary equipment and material to survey, stake, calculate, and record data for the control of work.” The Special Contract Requirements modified the FP-96 and provided that the FHA would provide the “Roadway centerline” for the initial reference lines and control points for the staking of the bicycle path. FP-96 subsection 152.02 states that the initial reference lines established by the FHA, i.e., the roadway centerline, “will set horizontal and vertical control points, and will furnish the data for use in establishing control for completion of each element of the work.”
The placement of minor hot asphalt concrete was designated as pay item 40201 under the bicycle path contract. The corresponding section for pay item 40201 in the FP-96 was section 402, which described the work as “constructing minor hot asphalt concrete for sidewalks, paved waterways, curbs, and roadways.”
Mr. Conway, the president and owner of OEMS, as well as the initial project superintendent, testified at trial that the defendant was “excessively scrupulous, aggressive, hypercritical, [and] excessively vigilant [in the] enforcement of the tolerances for finishing of the surfaces of the subgrade and the aggregate base courses” on the bicycle path. Mr. Conway testified to the use of a two-foot level for the acceptance or rejection of the aggregate base by government inspectors. Mr. Conway also testified to increased costs as a result of government direction to change and replace completed work of the subgrade and aggregate course. Mr. Conway stated, “[f]or example, certain slopes were changed, certain ditches were established or eradicated, grades were changed, things of that nature.” Mr. Thompson, at one point, the project superintendent on the bicycle path contract, testified that at times, the defendant would check the grades on the subgrade and aggregate course two or three times in a single area of the construction before final government approval.
The construction diaries of the plaintiff and defendant evidence the type of finishing inspections and the changes of grades in the subgrade and aggregate course. Mr. Conway’s daily log for July 29, 1998 states that the defendant had decided to redesign the grades due to an error in design in the area of the bicycle path designated as 4 + 220 and *177 4 + 565. 6 On July 27, 1998, Mr. Conway’s daily log notes that Gregory Parsons, an FHA inspector on the bicycle path contract, identified some areas of the aggregate course at the Cascade Fish Hatchery Parking Lot “that were a few millimeters low or high” and would not approve the finishing. Mr. Conway’s July 28, 1998 daily log notes that on June 15, 1998, the defendant directed the plaintiff to rework the grade elevations “that were different from those indicated in the original and revised plans.”
Jeffery Cox, also a CEMS project superintendent for a time, maintained a daily log, in which he stated that on July 24, 1998, the government inspector, Gregory Parsons, “did not like how we [CEMS] graded the CFH [Cascade Fish Hatchery] parking lot to the curbs... we had AA [Surveying] stake it ... spent all day hand raking & compacting.” On August 4,1998, Mr. Cox’s daily log states the following: “Cliff [Chew, the FHA project engineer] came down and... wrote several spots that were 1 to 3 cm high or low. I asked them last week to do this & they said they did & it was acceptable (see log). Now that Benge is here to pave it, just like I told the [sic] last week they would be, they no longer like it so we are regrading it at 9:30.” On October 1,1998, Mr. Cox’s daily log notes that the Bridge of the Gods parking lot needed to be regraded, “[f]or the last two days they [government inspectors] have told him [Mr. Thompson] it looks good just a little fine grading on the edges[,] now they say it is all wrong.”
Mr. Thompson’s daily log references the instances of defendant’s approval of the sub-grade and aggregate surface. On September 30, 1998, Mr. Thompson’s daily log states that the government inspectors “double eheck[ed]” previously approved surfaces pri- or to paving. On October 1, 2003, Mr. Thompson wrote the following: “I, then, went to shoot grade to try to finish for approval. I will keep trying to get it. My crew tried several more times to appease Clifford’s [Mr. Chew’s] difficult demands, but fell short each time.”
One of the two FHA inspectors on the bicycle path project, Gregory Parsons, testified at the trial that he often inspected the finishes of the bicycle path work with a two-foot “SmartLevel.” Inspector Parsons testified that he would notify defendant’s project engineer Chew of deviations of ten to fifteen millimeters over the two foot length of the SmartLevel, and would reject the plaintiffs work based on those measurements. Inspector Parsons’ daily log noted that FHA rejected work based on his use of the SmartLevel. CEMS employees who worked on the bicycle path also testified that, often, hand raking of the bicycle path grades was required to comply with the requests of FHA inspectors.
The changes in grades of the bicycle project also produced difficulty when, according to FHA inspector Richard MeNichols’ daily log, the FHA “had to make a lot of [changes] to the ditch & other areas in the field due to the frequency of asphalt in underlying areas & that in some places it was 15" thick.” CEMS’ daily logs also stated that project engineer Chew “acknowledged that he had made a mistake regarding the grades for the trail subgrade in the vicinity of 4 + 220 to 4 + 565.”
III. All — Government Direction to Change Roadway Obliteration Work By Directing Removal of Additional Existing Pavement
CEMS’ bid on the pay item 21101, Roadway Obliteration, estimated 150 square meters, with a unit bid price of $6.00 for a total amount bid of $900.00. Section 211 of the FP-96 specified the work under pay item 21101. Subsection 211.01 states that Roadway Obliteration “consists of obliterating and reeontouring roadways, turnouts, parking areas, and other widened areas.” Subsection 211.02 provides the general construction requirements for Roadway Obliteration and provides: “Scarify and bury or remove the existing pavement structure. Break down and bury or remove old structures. Fill ditches and restore the obliterated roadway *178 to the approximate original ground contour or shape to blend with the terrain.”
The construction plans and drawings for the bicycle path indicate 145 square meters of Roadway Obliteration at the bicycle path underpass of 1-84. The construction plans and drawings also provide “Typical Sections” indicating representative work to be performed by OEMS at various stages of the bicycle path. The typical section for the portion of the bicycle path indicates that CEMS was required to “Scarify to 200 mm [millimeters] depth.” The construction plans and drawings also indicate that at various areas along the bicycle path, CEMS was to “[d]ig out asphalt and replace.” The construction plans and drawings instruct CEMS to “[obliterate existing roadway” at an area located at the Cascade Fish Hatchery, the starting point of the bicycle path. Other areas of the construction plans and drawings indicate that CEMS was required to remove existing asphalt at the 1-84.
The FHA’s Geotechnical Report no. 14-96, issued in August, 1997, indicated that much of the path of the bicycle path consisted of native material, and a majority of the work for the preparation for the construction of the bicycle path consisted of “minimal grading work,” “minor grading work,” and excavation of “native soils.” The Geotechnical Report also stated that boring logs indicated “very loose to medium dense, gravelly, silty sand with cobbles and occasional small boulders to a depth of 12.5 meters.” The Geo-technical Report further stated that the soil encountered, “with a plasticity index of 20, will likely be difficult to work when wet.” In addition, the Geotechnical Report indicated areas of the proposed layout of the bicycle path that have “scattered areas of old asphalt concrete pavement.” The report continued: “The Bike Path alignment traverses a segment of the historic highway in this segment. Grading in this segment will primarily involve removing organic litter from the asphalt concrete surface.” Moreover, the Geo-technical Report, under the heading of “Pavement Recommendations,” provided the following analysis:
The existing pavement surface on the detour segment (4+220 to 4 + 565) is thin and has been damaged by tree roots. The recommended treatment for this segment is to scarify the existing surface and place 100 mm of crushed aggregate base and 75 mm of asphalt concrete.
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At the few locations where the existing surface is damaged by tree roots or potholed, cut out the damaged pavement and replace it with 150 mm of crushed aggregate base and 35 mm of asphalt concrete prior to placing the overlay.... Because roots from these trees have damaged the historic pavement, the recommended pavement structure in this area is the reconstruction design.
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The recommended pavement structure for the detour segment is to scarify the existing surface and place 100 mm of crushed aggregate base and 75 mm of asphalt concrete.
Project engineer Chew testified during cross-examination that the boring logs accompanying the Geotechnical Report did not indicate existing historic pavement structures at certain points in the bicycle path layout.
The pay notes submitted by CEMS during the project indicate that the FHA accepted work as Roadway Obliteration during the initial phases of the bicycle path construction, and then subsequently denied payment and classified the work under pay item 20401, Roadway Excavation.
The daily logs of the bicycle path project note the various instances when asphalt was removed during construction. For example, on August 21,1998, Mr. Cox notes the following in his daily log: “Matt & Leon with grader spent 5 1/2 hrs removing the AC [asphalt concrete] edge at 4+220 & 4 + 565 where the AC was obliterated. This is not shown on the plans or in the specs. They directed us to do it.” On August 31,1998, Mr. Cox notes the following: “We had to saw cut it last week, spent 6 hrs last Friday on it plus the removal of the AC before that. It is not shown on the plans & was buried under debris prior to us ariving [sic] onsite. Once the debris was removed you could see waves in the AC & Rick [inspector McNichols] di *179 rected us to remove them.” On September 22, 1998, Mr. Thompson wrote: “I asked Rick if he would like me to remove asphalt from 5 + 450 +/-. He said yes, we agreed & we removed 28 m2.”
The testimony at trial established that CEMS encountered asphalt concrete at differing points in the construction of the bicycle path. Mr. Conway testified that he “didn’t remember verifying the quantity that the government had in the contract [for Roadway Obliteration]. I just went with whatever they had.” Mr. Conway testified that he did not spend a lot of time verifying the 150 square meters of Roadway Obliteration because it “is not a lot of asphalt” to consider when bidding on such a large project. Mr. Conway testified to examples during the construction of a portion of the bicycle path when CEMS was excavating down through “normal soil that you would expect when all of a sudden, we got down and we started hitting asphaltic pavement... And Mr. MeNiehols [FHA inspector] directed us to remove the pavement.” Mr. Conway also testified regarding the removal of asphaltic concrete as follows:
Q. Why did you think this was a change?
A. Well, the reason I thought this was a change is for that particular bid item, the only asphaltic pavement that I can recall right now that’s required under the contract is at the 1-84 area. I can’t remember if there’s a — If there is a couple other spots, it might be at the fish hatchery or somewhere else. It’s really minor. It’s a real little — Well, we ended up taking thousands of cubic yards — cubic meters of this material — square meters of it — and—to the point where we didn’t anticipate excavating this much material. It takes a lot of time to pry it out of there — 15 inches thick, piece by piece with excavator. That’s one problem. Way slower than what we anticipated; hard on our equipment. Number two, at first, Mr. [FHA inspector] MeNiehols indicated we could bury it in the — the embankments. But the pieces, I think, got so big that he’s, like “No. You know, maybe a few pieces or something like that. But you can’t bury this stuff in there.” And we didn’t have any provisions for what to do with it. So we ended up having to haul it off site in order to get rid of the stuff.
Q. What was the Federal Highway Administration’s position?
A. Well, at first, we were issuing pay notes with these square meters. That’s how the bid item was set up for removal of existing asphalt. We were issuing these to the Government inspectors, and they were signing them. And I believe we even received payment. I can’t remember the specifics. But then as — as the relationship spiraled downward, all of a sudden, these — these start coming back to us. And we were told we weren’t going to be paid for it.
Mr. Conway testified to his understanding of Roadway Obliteration as follows: ‘You can use scarification and excavation, and you can use roadway obliteration. It’s my understanding that the difference is that roadway obliteration, you are also obliterating an existing structure. Whereas, in excavation, you are just moving native material.” Mr. Conway also testified at trial of the additional expenses that CEMS encountered for the removal of the concrete asphalt encountered on the bicycle path project. Mr. Conway explained that the additional costs claimed for the removal of the concrete asphalt included trucking time for the removal of the asphalt concrete from the job site, and disposal of the asphalt concrete at disposal areas.
IV. A14 — Government Failure to Make Timely and Complete Payments
Section 109 of the FP-96 provides general guidelines for measurement methods for payment under the pay items. Subsection 109.01 states that “[u]nless otherwise specified, measure when the work is in place, complete, and accepted____ The Measurement Subsection of each Section details specifics and exceptions for measuring work under each Section. The CO will verify Contractor Measurements.” In subsection 109.02, the FP-96 defines “Contract quantity” as follows:
The quantity to be paid is the quantity shown in the bid schedule. The contract quantity will be adjusted for authorized *180 changes that affect the quantity or for errors made in computing this quantity. If there is evidence that a quantity specified as a contract quantity is incorrect, submit calculations, drawings, or other evidence indicating why the quantity is in error and request, in writing, that the quantity be adjusted.
Subsection 109.05, “Scope of Payment,” also states the following regarding quantities and the bid schedule:
The quantities shown in the bid schedule are approximate unless designated as a contract quantity. Limit pay quantities to the quantities staked, ordered, or otherwise authorized before performing the work. Payment will be made for the actual quantities of work performed and accepted or material furnished according to the contract. No payment will be made for work performed in excess of that staked, ordered, or otherwise authorized.
Mr. Conway testified at trial that CEMS would receive monthly payments by FHA for work performed under the contract based on pay notes submitted by the plaintiff. According to Mr. Conway, CEMS would submit a pay note to the FHA monthly, or at certain intervals that occurred more frequently. The pay notes described a certain quantity of work performed for a particular pay quantity item. At the end of the month, Mr. Conway testified that CEMS would total the pay notes, submit a multi-page pay estimate request to the FHA, and the defendant would generate a pay voucher and issue payment in accordance with the pay voucher. CEMS employees testified that when completing the pay notes, they endeavored to be as accurate as possible. Project engineer Chew testified that he relied upon inspector McNichols and inspector Greg Parsons to review the quantities reflected in the pay notes submitted by CEMS and then proceeded to incorporate the quantities approved by the inspectors when completing the monthly progress payments.
A. Pay Item 15603E, Corrective Work by the Oregon Department of Transportation at 1-84
The FHA unilaterally deducted from CEMS’ payments the $5,000.00 FHA paid the Oregon Department of Transportation (ODOT) for repairs to the 1-84 detour pavement. The FP-96 states that under subsection 156.04, the contractor is responsible for the maintenance of the roadway and detours in a safe and acceptable condition. If the government directs the contractor to take corrective action and the corrective action is not taken immediately by the contractor, the FP-96 states that “the condition may be corrected and the cost of the corrective action deducted from monies due the Contractor.”
On September 10, 1998, Dennis C. Quarto, FHA Construction Operations Engineer, sent a letter signed on his behalf by project engineer Chew to CEMS stating that certain repairs to the temporary pavement at the I-84 detour for the construction of the bicycle path underpass were the responsibility of CEMS. The September 10,1998 letter stated that the “pavement distress” was repaired by ODOT and that the cost of the ODOT repair would be deducted from CEMS’ progress payments. Mr. Conway testified at trial regarding his view that CEMS was not responsible for the failure of the pavement at the I-84 detour:
Like I said earlier, the failures in the pavement of the detour were due to two situations: One, the reverse super elevation on the asphaltic pavement around the detour, which put most of the weight of the trucks on the outside duels and overstress-ing the minimally [sic] thickness designed pavement that the Federal Highway Administration directed be placed there. Secondly, the Federal High — The failures took place in existing earthen areas of pavement that were underlain by rock; underlain by existing subgrade, existing earth outside the structural backfill area. And those areas had been tested and accepted by the Government and approved to be paved by their authority as reflected in Mr. [FHA inspector] McNichols’ logs.
B. Pay Item 20401, Roadway Excavation
CEMS’ bid on the bicycle path included Roadway Excavation under pay item 20401. CEMS’ bid indicated 11,000 cubic meters, with a unit bid price of $8.00, and a total *181 amount bid of $88,000.00. The Special Contract Requirements supplemented the FP-96 and directed the measurement of the Roadway Excavation by CEMS to be accomplished using “the volume shown in the plan column on the summary of quantities sheet of the plans. The volume is subject to adjustments resulting from changes to slope stakes.” Subsection 204.17 of the FP-96 provides that the “accepted quantities, measured as provided above, will be paid at the contract price per unit of measurement for the pay items listed below that are shown in the bid schedule. Payment will be full compensation for the work prescribed in this Section.”
Final pay estimate no. 10, issued by the FHA on May 2, 2000, stated that the total quantity to date for pay item 20401, Roadway Excavation, was 10,401 cubic meters. At the trial of this matter, the court entered into evidence plaintiffs exhibit 1233. Plaintiffs exhibit 1233 provides the plaintiffs analysis and calculations for the various pay items claimed under A14. Plaintiffs exhibit 1233 claims that the total quantity of pay item 20401, Roadway Excavation, was 13,457.20 cubic meters. Plaintiffs exhibit 1233 quantity analysis relies on pay notes submitted by CEMS from May 30,1998 through December 9,1998, and a deduction of 261.5 cubic meters calculated by Mr. Conway on August 10, 2002.
C. Pay item 20803, Structural Backfill
CEMS bid pay item 20803, Structural Backfill at $38.00 for 3,400 cubic meters, for a total bid price of $129,200.00. Backfill is defined in subsection 101.04 of the FP-96 as “[mjaterial used to replace or the act of replacing material removed during construction. Material placed or the act of placing material adjacent to structures.” The Structural Backfill was used to support the precast concrete walls of the pedestrian underpass of 1-84 of the bicycle path. Subsection 208.13 of the FP-96 provides the appropriate measurement for backfill. Subsection 208.13 states:
Measure structural backfill by the cubic meter in place. Limit the volume of structural backfill measured to that placed inside vertical planes located 450 millimeters outside and parallel to the neat lines of footings or foundations. Use these vertical planes to determine pay quantities regardless of the amount of backfill material placed outside these planes.
Subsection 109.02(b)(1) states that for the measurement of “Cubic meter in place,” the contractor shall “[mjeasure solid volumes by a method approved by the CO or by the average end area method as follows .... ” The FP-96 subsection 109.02(b)(1) proceeds to provide three alternate measurement techniques for the average end method.
On August 25, 1998, Mr. Conway submitted a letter and attached calculations for the pay item 20803, Structural Backfill. The August 25, 1998 letter provided Mr. Conway’s calculations for the Structural Backfill quantities in accordance with subsection 208.13 of the FP-96 and, based on those calculations, determined that the quantity for Structural Backfill was 3,987.11 cubic meters. Mr. Conway testified at trial that plaintiffs exhibit 1233 provided an updated quantity for Structural Backfill of 2,834.20 cubic meters. According to the plaintiff, the reduction in the quantity claimed for Structural Backfill is based on three factors: 1) quantity calculations as required pursuant to FP-96 subsection 208.13; 2) variations in quantities; and 3) “[a]ny unforseen [sic] CEMS liability regarding this pay quantity.”
According to the defendant’s final pay estimate no. 10, dated May 2, 2000, the FHA determined that CEMS was paid for 1,927.8 cubic meters. Project engineer Chew testified at trial that the FHA originally based the Structural Backfill quantities on CEMS’ truck tickets, which provided the quantities of Structural Backfilled hauled to the bicycle path construction site. On June 5, 2000, Mr. Chew also performed a calculation of the Structural Backfill quantities based on the contract drawings and determined that the original pay quantity of 1608.3 cubic meters estimated by the FHA was close to his June 5, 2000 calculations of 1,778 cubic meters.
D. Pay Item 21101, Roadway Obliteration
According to subsection 211.07, the FP-96 directs that Roadway Obliteration is to be measured by the square meter before the *182 work is performed. CEMS bid pay item 21101, Roadway Obliteration, at $6.00 per square meter, and estimated 150 square meters for the quantity of Roadway Obliteration on the bicycle path. Based on plaintiffs exhibit 1238, CEMS calculated the Roadway Obliteration quantity on the bicycle path to be 7,197.87 square meters. Mr. Conway testified at trial that CEMS encountered existing asphaltic concrete in excess of the contract documents and was given government direction to remove the material.
E. Pay Item 30802, Roadway Aggregate Method 2
The aggregate base course that was placed on the road bed for the construction of the bicycle path was designated as pay item 30802, Roadway Aggregate Method 2. CEMS bid Roadway Aggregate Method 2 at $28.00 per metric ton, with a quantity of 4,500 metric tons, for a total bid price of $126,000.00. Pay item 30802 comes under FP-96 section 308. Minor Crushed Aggregate. Subsection 308.07 of the FP-96 provides the appropriate measurement for Roadway Aggregate Method 2 and states that the contractor shall “[m]easure crushed aggregate by the cubic meter in the hauling vehicle, by the metric ton, or by the square meter.”
The construction plans and drawings for the bicycle path indicate that 3,979 metric tons of Minor Crushed Aggregate Method 2 would be placed along the road bed of the constructed bicycle path. The construction plans and drawings also indicate that 321 metric tons of the Minor Crushed Aggregate Method 2 would be placed at the 1-84 underpass for the bicycle path. The diary entries from FHA inspectors and project engineer Chew indicate that the FHA directed CEMS to provide Minor Crushed Aggregate Method 2 in areas outside the road bed and 1-84 Underpass. Mr. Chew also testified that during construction of the Cascade Fish Hatchery Parking Lot, he instructed CEMS to bring additional Minor Crush Aggregate Method 2 to the parking lot excavation area, “I would just pay them for the additional rock to bring it up to the correct grades.”
The method for measuring the quantity of Minor Crush Aggregate Method 2 CEMS employed involved weighing an empty truck at the gravel pit, then weighing the loaded truck before delivery to the bicycle path construction site. The weight differential between the empty and loaded trucks established the quantities for which CEMS sought compensation. According to Mr. Conway, CEMS would accumulate “truck tickets” and submit them to the FHA, with the appropriate pay notes, on a weekly or monthly basis. The plaintiff also has provided a tabulation of the truck tickets it claims to represent the Minor Crushed Aggregate Method 2 used on the project. According to plaintiffs exhibit 1233, CEMS claims that the correct pay quantity for Minor Crushed Aggregate Method 2 is 8,324.2 metric tons based on the pay notes submitted by CEMS during the course of the bicycle path project. The FHA calculated the quantity of Minor Crushed Aggregate Method 2 that CEMS placed at the bicycle path project as 4,217.8 metric tons, and an additional 166 metric tons under the contracting officer’s final decision, for a total 4,383.3 metric tons.
F. Pay Item 40201, Minor Hot Asphalt Concrete
According to CEMS’ bid, Minor Asphalt Concrete for the bicycle path project totaled 3,000 metric tons, at $60.00 a ton, for a total bid price of $180,000.00.
The placement of Minor Hot Asphalt Concrete was designated as pay item 40201 under the bicycle path contract. Subsection 402.10 states that the contractor shall measure the quantities of Minor Hot Asphalt Concrete by the metric ton. The construction plans and drawings designate the placement of the Minor Hot Asphalt Concrete on the mainline of the bicycle path, truck turnarounds, widening areas, trail approaches, and at the 1-84 underpass.
At trial, Mr. Conway testified that the Minor Hot Asphalt Concrete quantity claimed by CEMS is the sum of the quantity delivered to the bicycle path project and placed on the job by the subcontractor, including the 1-84 underpass detour work. CEMS’ exhibit 1233 provides the total quantity claimed by the plaintiff for Minor Hot Asphalt Concrete to be 3,165.51 metric tons.
*183 The FHA has paid CEMS for 2,614.3 metric tons of Minor Hot Asphalt Concrete. The contracting officer’s final decision also awarded the plaintiff an additional 445.5 metric tons of Minor Hot Asphalt Concrete placed at the bicycle path project, for a total of 3,059.8 metric tons. Following a review of the plaintiffs evidence at trial, the defendant states: “[i]n reviewing CEMS’s weight tickets submitted as evidence at trial, the Government has discovered weight tickets supporting an additional 72.2 metric tons of minor hot asphalt concrete.... Accordingly, CEMS should be paid an additional $4,332.00 (72.2 x $60) for this item.”
G. Pay Item 62506, Mulching, Hydraulic Method
CEMS’ bid for the bicycle path contract included bid item 62506, Mulching, Hydraulic Method, for ten slurry unites at $200.00, for a total bid of $2,000.00. Section 625 governs this pay item and is titled “Turf Establishment,” which consists of “soil preparation, watering, fertilizing, seeding, and mulching.” Pursuant to FP-96 section 625, CEMS was obligated to apply mulch following seeding in certain areas of the bicycle path using “hydro-type” equipment for the uniform application of the mulch. Subsection 625.11 provided the measurement for quantities under Mulching, Hydraulic Method, and specified that the slurry unit was acceptable. A slurry unit “consists of approximately 4000 liters of water plus the specified turf establishment material. Ten slurry units contain the material to cover one hectare.” Mr. Conway testified that the difference between the CEMS claim for seventeen slurry units and the FHA payment for twelve slurry units was based on the Mulching, Hydraulic Method used to complete the bicycle path project.
H. Pay Item 63509, Flagger
Pay item 63509, flagger, relates to the bid item for contractor flaggers used in the detour construction at the 1-84 underpass for the bicycle path. According to project engineer Chew, the detour that CEMS constructed during the work at the 1-84 underpass failed and required twenty-four hour flaggers at the designated positions of the detour. According to the plaintiffs exhibit 1233, CEMS is entitled to 1,562.5 hours for flag-gers and the defendant has only paid for 600.5 hours of flagger time.
I. Pay Item 63511, Temporary Concrete Barrier
The plaintiff bid pay item 63511, Temporary Concrete Barriers, placed during the detour construction of the 1-84 underpass work for the bicycle path, at $55.00 per meter, for a total bid price of $18,150.00. The FP-96 measurement for the Temporary Concrete Barriers was along the face of the barrier and such barriers were to be measured once, exclusive of relocation or replacement. The plaintiff relied on submitted pay notes to calculate the length on concrete barriers used on the bicycle path contract and, according to plaintiffs exhibit 1233, CEMS used 695 meters of Temporary Concrete Barriers.
J. Pay Item 63524, Variable Message Sign
CEMS bid pay item 63524, Variable Message Sign, as two units at $6,000.00 a piece, for a total bid of $12,000.00. Similar to Flaggers, and Temporary Concrete Barriers, Variable Message Signs fall under section 635 of the FP-96, Temporary Traffic Control. Subsection 635.01 states that the work consists of “furnishing, maintaining, relocating, and removing temporary traffic control devices and services as ordered for the control and protection of public traffic through the project.” A Variable Message Signs is a “self-contained, trailer mounted sign system consisting of a sign message panel, controller, power source, and structural support system. Make the trailer and sign support system safety orange.”
Project engineer Chew testified at trial that the FHA required CEMS to furnish an addition Variable Message Sign for the 1-84 detour while the bicycle path 1-84 underpass was being constructed. Although CEMS used three Variable Message Signs on the bicycle path contract, the FHA allowed payment for only one of the Variable Message Signs due to the FHA conclusion that CEMS caused safety problems arising from CEMS’ operation of the 1-84 detour.
K. Pay Item 63559, Traffic Control Laborer
CEMS bid pay item 63559, Traffic Control Laborer, at $40.00 per hour for 400 hours, for *184 total bid price of $16,000.00. Based on the Special Contract Requirements, Traffic Control Laborers were responsible for the following activities:
(a) Handling portable construction signs, barricades, drums, cones, tubular markers, and other traffic control devices as follows:
(1) Temporary set up and removal
(2) Relocation on the project according to the traffic control plan
(3) Relocation to and from temporary storage on the project
(4) Cleaning and replacing construction signs or other traffic control devices on the project which are damaged by a third party[.]
(b) Operating the vehicle(s) while transporting the portable construction signs, barricades, drums, cones, tubular markers, and other traffic control deviees[.]
(c) Providing temporary flagging assistance[.]
(d) Cleaning construction signs and other traffic control devices when they become illegible because of weather or other conditions[.] Furnish all vehicles and incidentals necessary to handle and transport the portable construction signs, barricades, drums, cones, tubular markers, and other traffic control devices[.]
Mr. Conway testified that the FHA denied compensation for Traffic Control Laborers, or rescinded previously approved pay notes for such work. According to the plaintiffs exhibit 1233, and relying on the paynotes submitted to the FHA by CEMS, the plaintiff claims entitlement to 1,151.0 hours for Traffic Control Laborers.
L. Pay Item 63560, Traffic Safety Supervisor
CEMS bid pay item 63560, Traffic and Safety Supervisor, for 400 hours at $45.00 per hour, for a total bid price of $18,000.00. The contract required CEMS to provide a “traffic and safety supervisor who is certified by a state highway agency or other acceptable certification program.” CEMS was not allowed to designate the Superintendent as the Traffic and Safety Supervisor. In addition, the contract specified that “[a]ny work described for the Traffic Control Laborer and performed by a Traffic Control Supervisor will not be measured for payment.” The Traffic and Safety Supervisor was to perform eight control tasks during the performance of the contract, including periods of suspensions and work stoppages. The Special Contract Requirements added five more tasks relating to “control devices, including those in staging, storage, material sources, and disposal areas----” Based on the pay notes submitted by CEMS to the FHA, plaintiffs exhibit 1233 identifies 546.5 hours that the Traffic Safety Supervisor performed on the bicycle path contract.
V. A17— Government Direction to Provide Testing in Excess of the Specifications
CEMS bid pay item 15401, Contractor Testing, as a lump sum price of $5,000.00. Section 154 of the FP-96, Contractor Sampling and Testing, governs the pay item. Subsection 154.01 states that: “This work consists of obtaining samples for testing. When there is a contract pay item for Contractor testing, it also consists of testing and reporting required test results. It does not include Contractor quality control testing required under Section 153.” Subsection 154.03 describes the testing of work performed under this pay item and states that tests shall be performed as required by the “Sampling and Testing Tables” for all applicable work. The contractor was required to “[ajllow the CO the opportunity to witness all testing.” The Special Contract Requirements also state that “[t]he testing schedule is listed in the individual sections ordering the work.” The reporting procedures of the test results by the contractor to the defendant included the obligation to furnish the test results in a reasonable time between the tests and the transmission of the results to the defendant.
Section 153 of the FP-96 governs the specifications for “Contractor Quality Control,” which consisted of “obtaining samples for Contractor quality control testing, performing tests for Contractor quality control, providing inspection, and exercising management control to ensure that work conforms to the contract requirements.” In accordance with section 153, the contractor was required to submit a quality control plan for accep *185 tance by the FHA to meet contract specifications.
The Special Contract Requirements for the bicycle path project provided approximately twenty “Sampling and Testing” tables for testing under bid pay item 15401, Contractor Testing. The various Sampling and Testing tables provided the material or product to be tested, the characteristic of the testing, the testing method, the sampling frequency, the tolerance, point of sampling, reporting time, special remarks, among other information. The Special Contract Requirements also specified that the sampling frequency to be performed by the contractor would be determined based on the particular material installed by the contractor. For example, with certain work, the Sampling and Testing tables stated that sampling frequency would be left to the discretion of the CO, while other Sampling and Testing tables specified that tests would take place at specified intervals of the work.
Mr. Conway testified at trial that he agreed with the contracting officer’s final decision, which determined that 397 tests were taken on the bicycle path to determine whether CEMS’ work met contract specifications. Mr. Conway also agreed that 98 of the 397 tests failed. Mr. Conway testified that the 98 failed tests were attributed to inappropriate directives by the FHA for the use of unsuitable testing procedures in the sub-grade, the high moisture content of the sub-grade that distorted testing results, failing tests as a result of the FHA directives for the finishing of the Roadway Aggregate Method 2, and that the FHA required inappropriate testing methods for soil conditions of the bicycle path.
Mr. Cox testified that the FHA directed testing and sampling on the bicycle path project in excess of the specifications. For example, the FHA required three consecutive compaction tests in a twenty by ten foot area, the FHA was directing density testing approximately every ten to fifteen feet, daily cylinder testing for mortar placed on the bicycle path, and in some cases, testing every two feet. Indeed, it appears from the testimony received at trial, that the FHA inspectors required additional testing if they perceived an area to involve a “critical item” of the bicycle Path.
Mr. Cox’s August 20,1998 daily log provided further examples of the FHA’s testing requirements:
Tested 3 + 495 it passed. We then went to CFH [Cascade Fish Hateheiy] while we filled the water truck. We took a shot [test] in the center area on the north end & it was low so we watered & rolled it & it passed. Rich [FHA inspector McNichols] then said to test the center on the south side so we water & rolled it & it passed. While we were watering & rolling Rich had them test 3 other spots that all passed. Total there are 9 shots that have passed in this area. Once again I explained to Rich how the spec says on[e] test per 500 tons but he said I was wrong.
CEMS submitted a quality control plan and designated Mr. Cox as the quality control manager. Mr. Thompson testified that the CEMS quality control program was supplanted by the directives of the FHA, and that government directions “became the quality control program.” According to CEMS, at the time the contract required tests were performed, the plaintiff would provide the FHA with the test reports and provide an additional copy of the test results through the mail. The FHA also required full-time testing on certain areas of the bicycle path project. Mr. Conway testified to the impact of the additional testing, which included “the crew standing by; the lower productivity; whatever else is associated with that additional testing.”
Project engineer Chew testified regarding his oversight of the testing procedures on the bicycle path. He required approval of the compaction tests of the subgrade prior to the placement of the Roadway Aggregate Method 2, and compaction of the Roadway Aggregate Method 2 prior to the placement of the asphaltic concrete pavement. FHA inspector McNichols testified that CEMS was unable to proceed with work on the bicycle path project unless the FHA observed the testing on the project. In addition, the FHA inspectors provided conflicting testimony regarding the use of “rounded-up” testing results. FHA inspector Parsons testified that the ac *186 ceptance of a 94.7 percent test result would be “inferred” when nearby test results were 95 percent or more. Inspector Parsons, however, testified that he had rejected a 94.7 percent test result. Inspector McNichols testified that he was “quite sure” that at no “time during [his] involvement with the bike path project, did [he] inform anyone working for a subcontractor for CEMS that they could round up a compaction test result lower than 95 percent____” Inspector McNi-chols, however, acknowledged an occasion on which he permitted paving an area which had failed a compaction test.
VI. A27 — Government Suspension of Work
The contract included the Suspension of Work clause, Federal Acquisition Regulation (FAR) 52.242-14(b), which states in relevant part:
If the performance of all or any part of the work is, for an unreasonable period of time, suspended, delayed, or interrupted (1) by an act of the Contracting Officer in the administration of this contract, or (2) by the Contracting Officer’s failure to act within the time specified in this contract (or within a reasonable time if not specified), an adjustment shall be made for any increase in the cost of performance of this contract (excluding profit) necessarily caused by the unreasonable suspension, delay, or interruption, and the contract modified in writing accordingly.
48 C.F.R. § 52.242-14 (b) (1997).
The bicycle path contract also specified that the “[w]ork shall be completed on or before September 30, 1998, subject to such extensions as may be authorized by the terms of the contract and the specifications made a part thereof.” The contract included an incentive clause for the early completion of the bicycle path underpass at the 1-84 highway. The incentive clause provided a $5,000.00 monetary incentive to the contractor for each day the underpass work was completed before the thirty day completion window, with a $75,000.00 cap on the monetary incentive. If the contractor exceeded the thirty. day work window for the 1-84 underpass work, the contractor would be assessed liquidated damages of $5,000.00 per day.
On April 14, 1998, the FHA received a CEMS schedule for the completion of the bicycle path in August, 1998. The April 14, 1998 schedule indicated the critical path of the bicycle path project, the activities on the critical path, and termination of the float time in the activities that could effect the critical path. According to Mr. Conway, the completion of the six month bicycle path project in four months was “conservative” and achievable. Indeed, project engineer Chew testified that based on a preliminary scheduling he performed, a contractor could have completed the contract in eighty work days.
During the course of the bicycle path project, CEMS submitted, at a minimum, twenty-one revised construction schedules to the FHA. The constructions schedules spanned from April, 1998 through November, 1998, and included two week narratives for upcoming work, preliminary schedules, or critical path schedules. For example, on September 23, 1998, CEMS submitted its seventeenth revised schedule, with tabulation and written narrative. The transmittal letter, also dated September 23, 1998, noted several changes on the project affecting the CEMS schedule:
The work duration for the Bridge of the Gods parking area has increased due to the numerous Government changes and delays.... Other changes are noted in the attached copy of Daniel J. Lynch’s letter dated August 27, 1998____CEMS has requested the Government to issue documentation of all changes so their total impact can be determined.
In an October 8, 1998 transmittal letter for CEMS’ twenty-first revised construction schedule, tabulation, and written narrative, CEMS notes “that several Government changes and delays are extending scheduled work beyond the current completion date. These scheduled work items, changes and delays include, but are not limited to, the following____”
Mr. Conway testified regarding his submission of the construction schedules, the alleged impact of FHA delays and changes to the bicycle path project schedules of CEMS, *187 and, in particular, regarding a schedule showing completion of the project on November 16,1998.
Q. Mr. Conway, when you prepared this schedule, did you have an opinion as to whether the dates on here were achievable if there were no further delays and changes by the Government?
A. Yes. And I want to clarify something. I had actually sent a letter to the Government telling them that, you know — sometime in this area in the fail, I believe — that it was, you know — sending one of my schedules into them keeping them updated as to where things were at, that it was nearly impossible for me to, you know, definitely say when a completion date was going to be because of the ongoing changes. But with the information I had at that particular time with that particular schedule, you know, if nothing else further changed and if there wasn’t any further delays on the part of the Government, this would be the completion date. But every time I’d submit those schedules, there would be changes and delays. And so I don’t see why this schedule would be any different than the — that previous one I just mentioned, in that at that particular moment, if nothing else changed, this is what the completion date would be.
Mr. Conway also testified regarding a letter sent to the FHA by CEMS on October 30, 1998. The October 30, 1998 letter stated that “the project is, and has been, substantially complete in as much as it is available, and has been utilized, for its intended use. Therefore, it would be inappropriate to assess liquidated damages.” Mr. Conway explained that although there remained minor work to be performed on the bicycle path project, including the paving of approximately 100 to 120 feet of the approximately 2.4 mile bicycle path, the project was substantially completed on October 30, 1998, as evidenced by public use of the trail. An FHA status report issued by project engineer Chew for the month ending June, 1998, indicated that prior to October, 1998, CEMS was obligated to perform the contract work in a manner that would allow the safe weekend use of the bicycle path for bicyclists and hikers.
CO Parsons testified that in his opinion, the bicycle path was not substantially complete because the remaining paving required on the project posed “both an impediment to use and potentially to safety.” On November 20, 1998, CO Parsons issued a letter to CEMS describing certain work that remained to be completed by the plaintiff on the bicycle path project. CO Parsons’ November 20, 1998 letter also extended the contract completion date and stated the following:
However, timely completion of the work is essential, and the Government is, therefore, reestablishing a new contract completion date. Based on our assessment of your performance capabilities, the reestablished contract completion date is May 22, 1999. This contract completion date is based on a suspension of work due to weather related conditions considered unsuitable for performance of work from November 25, 1998 through April 19, 1999. This contract completion date is contingent upon the weather conditions on April 20, 1999 allowing CEMS to proceed with the corrective work and remaining work.
The Government hereby directs that all work is suspended effective November 25, 1998 through April 19,1999 due to unsuitable weather related conditions in the Columbia River Gorge. Liquidated damages will not be assessed during this period of suspension.
CO Parsons testified that in his opinion, the suspension of the project until April 19, 1999, was warranted due to the climactic conditions prevalent during the winter months in the Columbia River Gorge. CO Parsons further testified that he did not consider the cost of the suspension period and focused on the “base rock work to be done and paving, and end of November and December, it just wasn’t good weather to pave in.”
On June 4, 1999, the FHA issued a memorandum regarding the remaining work on the bicycle path project and stated that CEMS has hired subcontractors to complete the “punchlist items” to satisfy contract comple *188 tion. The June 4, 1999 memorandum also stated that:
The grading sub proceeded to work on the punchlist items on April 22. The bike path section at the 1-84 tunnel was paved on May 6, which should constitute substantial completion. The remaining punch list [sic] items were completed on May 22, the date that we established as the revised final completion of the project in accordance with our Cure Notice.
By letter June 21, 1999, the FHA notified CEMS that the work on bicycle path project was completed on June 11, 1999. The June 21, 1999 letter also informed CEMS that the project was substantially complete on May 6, 1999, subsequent to the completion of the paving work at the pedestrian underpass at the 1-84 highway. The June 21, 1999 letter also informed CEMS that, “liquidated damages will be assessed from April 20 through May 6, in addition to the liquidated damages assessed in 1998.” 7 Final Pay Estimate no. 15, issued by the FHA, states that CEMS was assessed $32,800.00 in liquidated damages, at $800.00 a day for forty-one days.
VII. Cl — Government Direction to Su-bexcavate and Backfill Soft Subgrade near Station 3 + 00 to 3 + 030
The FP-96, subsection 308.06, provides, “[preparation of the surfaces on which crushed aggregate is placed will be evaluated under Section 303 and 209 as applicable.” Subsection 303.04 of the FP-96 instructs the contractor to repair soft and unstable areas in accordance with subsection 204.07. Subsection 204.02(a)(2) defines subexcavation as, “[m]aterial excavated from below subgrade elevation in cut sections or from below the original groundline in embankment sections.” Subsection 204.07, Subexcavation, states that the material shall be excavated to limits designated by the CO and backfill the subexca-vation with “topping” or other suitable material. The construction plans and drawings of the bicycle path contract designate the area from 3 + 00 to 3 + 030 to be an area of excavation.
The plaintiffs claim to the CO described the soft subgrade near station 3 + 00 to 3 + 030 as follows:
While excavating for the bike path alignment CEMS discovered an approximately 30 meter long by 4 meter wide soft spot in the existing subgrade beginning at station 3 + 000. The Government expressed concern and CEMS indicated that this area should be subexcavated to a point approximately two feet below the specified sub-grade elevation and backfilled with roadway aggregate.
On June 23, 1998, project engineer Chew noted in his construction daily log: “Dave Conway called wanting direction on the sub-grade from 3 + 000 to 3 + 300[.] I told Dave I know about the saturated material and the questionable rolling pattern done last week. I told Dave I was not going to direct him how or when to work the subgrade; that we will only inspect the results.”
Mr. Conway testified at the trial of this matter that during the excavation for the subgrade, CEMS discovered that the material was too soft to support the intended loads for the area. Mr. Conway further testified that because the contract requires that the contractor request direction from the government on how to proceed, CEMS would request direction for the correction of the “soft spots” and absent response from the FHA, CEMS would “mitigate the situation and correct them to the best of our ability.”
VIII. C3 — Government Direction to Remove Additional Curbs and Patch from Station 2 + 940 to 3 + 000
CEMS bid pay item 20302A, Removal of Concrete Curb, at $8.00 per meter, for eighty-seven meters, with a total bid amount of $696.00. Section 203 of the FP-96 calls for the removing of curbs that interfere with the project work and are not designated to be removed. The construction plans and drawings of the bicycle path indicate that eighty-seven meters of concrete curb were to be removed from station 2 + 936 to station 3 + 023.
*189 On May 20, 1998, CEMS noted in a Contractor’s Daily Record of Construction Operations that the plaintiff excavated eighty-seven meters of curb from station-2+ 936 to station 3 + 023. An additional four meters were excavated by CEMS on May 27, 1998, at station 3 + 002.
IX. C4 — Government Direction to Remove and Reinstall, at a Different Alignment, the Concrete Barriers From 2 + 929 to 3 + 225
The construction plans and drawings of the bicycle path indicate that 375 meters of concrete barriers were to be placed from station 2 + 939 to station 3 + 314. The defendant stipulates that the record is clear that the “Government directed CEMS to realign the concrete barriers because of an error in alignment in the Government plans.” Indeed, when addressing the plaintiffs claim regarding the placement of the concrete barriers, the contracting officer’s final decision concluded that:
The Government was responsible for providing data by which CEMS installed the barriers in accordance with the Contract from Station 2 + 929 to 3+225. This data resulted in the barriers being installed in a crooked line. The Government is responsible for the costs incurred in repositioning that line of banders so that the barriers were in a straight line.
On July 20, 1998, one of CEMS’ project managers, Mr. Cox, noted in his daily log that he had “repe[a]tedly” informed project engineer Chew that, with the movement of concrete barriers, “the more chipped and broken they get III” Mr. Chew testified that the damage that occurred to the concrete barriers was a result of the plaintiffs use of the concrete barriers for the planned detour on 1-84 during the construction of the pedestrian underpass of the bicycle path. Mr. Conway confirmed that CEMS used the concrete barriers as temporary barriers at the 1-84 detour. Mr. Conway further stated that due to government direction, “we handled them more than we expected” and “every time you move them ... you damage them.”
X. D1 — Differing Site Condition Due to Actual Cut and Fill Volumes from Station 3 + 000 to Station 3 + 865 Not Matching Contract Specified Quantities and G1 — -Lack of Excess Excavation from between Station 5 + 137 and Station 5+405 for Embankment between Station 5 + 405 and Station 5 + 720 Delayed Completion of the Roadway between Station 5 + 405 and Station 5 + 720
The construction plans and drawings of the bicycle path contract indicates that 1,973 cubic meters of excavation was required between station 3 + 000 and station 3 + 865. The construction plans and drawings also indicate that CEMS was to perform 1,274 cubic meters of embankment at the same area of the bicycle path. The FHA issued a document titled “Earthwork Data” for the bicycle path project that described, among other things, the anticipated quantities of earthwork that would be performed on the project. The Earthwork Data document provides a “shrink” factor to determine the adjusted excavated volume total and instructs that .75 is the appropriate factor to consider. The Earthwork Data document also indicated that the adjusted volume for embankment totaled 1,274 cubic meters, arrived at by a multiplication factor of 1.00.
Mr. Conway testified at the trial that CEMS encountered excavation quantities at station 3 + 000 to station 3 + 865 in excess of the quantities indicated in the contract, as a result of FHA direction to change the course of the bicycle path. Mr. Conway further testified that the excess quantities were not suitable for use as embankment on the bicycle path due to the high moisture content and that CEMS, therefore, was obligated to haul the excavated material off site at additional cost. Although a contractor would normally stockpile the excess quantities of the excavated material and allow for the moisture to dissipate, Mr. Conway stated that CEMS was precluded from taking such action as a result of direction from the defendant.
Project engineer Chew also testified regarding the excess excavation that occurred at station 3 + 000 to station 3 + 865. He stated that, based on his recollection of the Earthwork Data, CEMS should have expected the excess excavation at the location. *190 Project engineer Chew testified that due to the excess material excavated, CEMS hauled 700 to 800 cubic meters in seventy to eighty truck loads from the project site. Project engineer Chew stated that, although the material excavated at station 3 + 000 to station 3 + 865 contained excess moisture, CEMS was not precluded from dissipating moisture through temporary storage at the project site.
Mr. Conway’s daily log for June 29, 1998, notes that he had informed project engineer Chew regarding the excavation quantities “near station 5 + 600.” Mr. Conway’s June 29, 1998 daily log also observes that “CEMS continued to haul material excavated from the roadway just west of the Ruckle Creek Bridge to fill at 5 + 600.” Mr. Thompson’s daily log, dated July 2,1998, notes that there was an ongoing discussion regarding the quantities of excavation and embankment for station 5 + 300 to station 5 + 700, and, although the quantities were insufficient at approximately station 5 + 600, Project engineer Chew advised CEMS that embankment material could be used from the excavation at the pedestrian underpass at 1-84.
XI. D5 — Differing Site Condition Regarding Excessively Wet Earthen Material at Approximately Station 3 + 690
Geotechnical Report no. 14-96 for the bicycle path project stated that “[njative soils on the project, due to the higher fines content or plasticity index, will typically be difficult to work when wet.” The Geotechnical Report also advised that in the area from station 3 + 650 to 3 + 880, “[c]onstruction in this area should be limited to dry periods without rain,” due to potential rock fall “during and after heavy rains.” Excavation also was recommended “only in dry periods without rain,” with the further warning to “not leave portions of the excavation open overnight or when work is not in progress.” Concerning subsurface sources of moisture, the Geotech-nical Report only accounts for seeps “from 3 + 929 to 3 + 975.”
Mr. Conway testified that because seeps differ from standing water, CEMS was not aware of the “excessive” moisture encountered near station 3 + 690. According to Mr. Conway, the ongoing and pervasive seepage kept the subgrade wet, preventing or impairing compaction and grading.
The FHA status report for the bicycle path project for June, 1998 stated that during excavation, “natural springs were encountered.” Inspector McNichols noted in his daily logs that during excavation on the bicycle path “high clay content soil” was encountered and there was “extreme saturation” of the existing soils. Inspector McNichols also noted in his June 30,1998 daily log that, “[I]t should be noted, that I doubt if anyone was ready for 31%” content of the excavated material. Inspector McNichols further wrote in his daily logs that CEMS attempted to alleviate the moisture problems, but CEMS failed, and “much of the area [was] clearly unsuitable.”
XII. D8 — Government Actions and Inac-tions Caused CEMS to Incur Additional, Unanticipated Mobilization Costs
The plaintiffs claim to the CO states the following regarding the government actions and inactions, allegedly causing CEMS to incur additional, unanticipated mobilization costs:
As described by numerous CEMS claims enclosed herein, in many different ways the Government changed, delayed, suspended, stopped and interfered with the work. These Government actions and in-actions caused CEMS to incur additional, unanticipated mobilization costs. Differing site conditions also adversely impacted CEMS’ mobilization costs.
The attached quantum spreadsheet details the mobilization costs originally anticipated by CEMS and those that were actually incurred. CEMS requests compensation for the additional costs.
The FHA inspectors on the project testified that it appeared CEMS’ approach to the work was inefficient due to a “hopscotch pattern” of work or a “checkerboard approach.” Mr. Conway testified to the resulting approach CEMS took on the bicycle path, “because we weren’t able to work as we planned, we were constantly jumping around like, you know, a frog in a skillet trying to get the thing done in different pieces all over *191 the place,” because of all the changes on the project.
XIII. E2 — Government Direction to Suspend and then Change Subgrade Work from Station 4 + 220 to Station 4 + 565
The construction plans and drawings indicate that excavation was to be conducted sporadically along the bicycle path station 4 + 220 to station 4 + 565, and Roadway Reconditioning also was to be performed. The construction plans and drawings provided detailed plans for the work on station 4 + 220 to station 4 + 565. The detailed plans in the construction plans and drawings state that the contractor was required to perform scarification to a depth of 200 millimeters, the placement of roadway aggregate to a fifty millimeter compacted depth, and the placement of minor asphalt concrete to a seventy-five millimeter depth to complete the work on station 4 + 220 to station 4 + 565. The Geotechnical Report for the bicycle path project had addressed the area between station 4 + 220 and station 4 + 565 by noting that the existing pavement surface was “thin and has been damaged by tree roots.” The Geotech-nical Report recommended that this segment of the bicycle path be scarified, with the placement of aggregate base course and as-phaltic concrete.
Mr. Conway’s daily log for July 29, 1998 documented the activity on the bicycle path between station 4 + 220 and station 4 + 565, as follows:
This morning at 7 am, Dave met with Ron and Aaron of AA Surveying and explained the situation regarding the Government’s directive to stop work on the subgrade between station 4 + 220 and 4+565. Dave noted that the Government had told us they are redesigning the grades in this area. Dave asked Ron to get a hold of someone from the Government to confirm these new grades as soon as possible so that this area can be staked and work resumed.
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After consulting with Ron Quimby of AA Surveying, Clifford Chew acknowledged that he had made a mistake regarding the grades for the trail subgrade in the vicinity of 4+220 to 4 + 565. He was uncertain of what the Government’s directive would be; however, it appears that the directive would probably involve placing and grading a minimal depth of crashed rock, allowing Ron Quimby to establish a new grade through this area, and then finishing it accordingly.
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Shortly after that, Clifford acknowledged that the Government had made a mistake in regards to the grading elevations between 4+220 and 4 + 565.
Project engineer Chew’s July 27, 1998 daily log also notes the activity at station 4+220 and station 4 + 565, and states that CEMS excavated the existing pavement when the contract documents did not require excavation. Project engineer Chew’s July 27, 1998 daily log further states that CEMS obliterated the existing pavement when the construction plans and drawings did not require obliteration.
Mr. Conway testified at trial that based on the contract documents, CEMS scarified the area between station 4 + 220 to station 4 + 565. According to Mr. Conway, when the FHA discovered the work performed by CEMS, project engineer Chew and the FHA inspectors were “baffled” at the work performed by CEMS. According to inspector McNichols, the existing pavement between station 4 + 220 and station 4 + 565 only required patching and then a placement of an “overlay,” and he was “stunned” by the work performed by CEMS at this portion of the bicycle path.
XIV. F7 — Government Directives Regarding the Layout of the 1-84 Detour
The bicycle path required the construction of a pedestrian underpass through 1-84 to allow the bicycle path to follow the historic highway from the Cascade Fish Hatchery to the City of Cascade Locks. The detour was scheduled to begin in June, 1998 and conclude within thirty days, with a monetary incentive if CEMS completed the detour work early. The construction plans and drawings for the project required the construction of a temporary two-stage detour for the bicycle path pedestrian underpass under *192 1-84. In the first stage of the detour, the construction plans and drawings required the contractor to construct a temporary roadway detour north of the existing interstate while the contractor constructed the south side of the pedestrian underpass. The second stage of the detour required a corresponding roadway south of the interstate while the contractor constructed the north side of the pedestrian underpass.
On April 23, 1998, CEMS submitted a proposed temporary traffic control plan to provide three lanes of traffic during construction of the south side of 1-84. The FHA accepted the proposed detour by CEMS, citing the benefit to the public for three lanes of traffic during construction of the south side of the pedestrian underpass, in comparison to the two lanes of traffic originally indicated in the construction plans and drawings. On June 4, 1998, the FHA addressed a letter to CEMS regarding the change in the detour for the construction of the pedestrian underpass at 1-84. The June 4, 1998 FHA letter provided that:
Temporary traffic control on the South side of interstate 84 during the first stage of construction will provide for one lane in each direction. Temporary traffic control on the North side of interstate 84 during the second stage of construction will provide for one lane in the West bound direction and two lanes in the East bound direction. The single lanes will have a minimum travel width of 4.9 meters and the double lane will have a minimum travel width of 8.6 meters.
The June 4, 1998 FHA letter also made various additions and deletions to the temporary traffic control plan indicated in the construction plans and drawings.
On June 22, 1998, CEMS forwarded to project engineer Chew an “Updated 1-84 Traffic Control Plan,” which included plans and drawings for the proposed detour for the 1-84 underpass construction. The June 22, 1998 transmission from CEMS provided the chronological sequence of work and the shifting of highway traffic on and off the detour during the underpass construction. Within the June 22, 1998 Updated Traffic Control Plan, CEMS listed various pay items for certain aspects of the detour work and also indicated: “[ojther pay quantities not calculated here.”
On June 23, 1998, the FHA and CEMS executed bilateral contract modification no. 1, for the following work:
This work consists of constructing an embankment, compacting, and constructing a geotextile retaining wall to support the north side of interstate 84 during the construction of a pedestrian underpass. This includes a two stage construction with a provision for three detour lanes during the second stage of construction for a pedestrian underpass. There will be an increase of four days in the contract time as a result of this modification.
Contract modification no. 1 included the material necessary for the scope of the work described above, including “unclassified borrow,” “geotextile,” and “crushed aggregate.” CEMS’ proposed layout of the detour, incorporated in the contract by contract modification no. 1, provided a 200 meter “radii” for the curvature of the detour. The plaintiffs surveying subcontractor laid out the “north side of the paving ... with wooden stakes and white paint marks according to the detour plan submitted by CEMS, Inc. and approved by the Federal Highway Administration.” According to Mr. Conway, CEMS placed the “survey adjusted” staking and pavement as directed and approved by project engineer Chew.
XV. F15 — Government Direction to Excavate, Backfill, and Place Steel Plates to Correct Soft Spots in the Pedestrian Underpass 1-84 Detour
The construction plans and drawings for the bicycle path project specified temporary detour pavement to consist of 75 millimeters of asphaltic concrete placed over 150 millimeters of roadway aggregate placed over the subgrade. Inspector McNiehols testified regarding his daily log and a notation regarding the native soils as unsuitable for use as subgrade material for 1-84. During the construction of the detour, CEMS was required to repair soft spots in the roadway. Following the corrective work, project engineer *193 Chew Inspected the work and “approved it for diversion of the westbound [1-84] traffic.”
On July 18, 1998, FHA directed CEMS to place steel plates over another soft spot in the detour roadway, other soft spot corrections also were required. On the night of July 19, 1998, the FHA sought corrective work on a soft spot of the detour by the Oregon Department of Transportation and deducted the cost of the repair from CEMS’ progress payments. Project engineer Chew’s daily log noted that he attempted to contact CEMS to perform the corrective work, but was unable to reach CEMS personnel.
XVI. F18 — In Order to Minimize the Effect of a Seam in the Traffic’s Tire Lane, the Government Directed CEMS to Saw Cut and Remove Asphaltic Concrete Previously Placed at 1-84
The record indicates that on July 13, 1998 project engineer Chew spoke to Mr. Conway because he “was concerned about having a longitudinal joint in the final 1-84 asphalt.” The record also indicates that on July 24, 1998, project engineer Chew worked with CEMS’ survey crew to “lay out staggered joint” to avoid a “cold joint lengthwise in the wheel rut of 1-84” west bound lane. Mr. Conway testified about the asphaltic concrete at the 1-84 roadway:
We had placed the asphaltic concrete on the first half of the detour and placed it, you know, as far as we could place it. And then we did the second half of the detour. And when the second half needed to be paved, Mr. Chew was looking at where that existing — that line of existing asphalt lay in relation to the future lanes that were' going to be reestablished on the interstate freeway. And he told me that he was concerned that by leaving that existing edge of the asphalt where it was, that there would be a seam — a line in the tire groove for the tires traveling on the interstate once it’s reopened. And he told me that this created a — a driving hazard. And he directed me to saw cut the asphalt so that that seam would be moved out of that tire lane and — and then remove all the asphalt that had been previously placed so that that seam would move back.
XVII. F27 — Government Direction to Add Stone Bench
CEMS bid on pay item 62009, stone masonry bench, in the amount of $1,200.00 per meter, for eleven meters, for a total bid price of $13,200.00. The parties agree that the contract required construction of a stone masonry bench on the south side of the pedestrian underpass, and by unilateral contract modification no. 6. that the FHA required the construction of an additional stone masonry bench on the north side of the pedestrian underpass. The defendant has paid CEMS $17,263.80 for the additional bench.
Project engineer Chew was considering adding an additional stone bench in early May, 1998. On August 12, 1998, however, CEMS wrote to the FHA and stated that “[d]ue to the impact of previous delays, changes and differing site conditions, CEMS hereby requests the Government not to direct CEMS to perform any additional or changed work such as access roads, stone benches, or any others.” Following the direction from the FHA to construct the stone masomy bench on the north side of the underpass, the FHA calculated the cost of modification no. 6 based on CEMS’ bid amount for pay item 62009, stone masonry bench, for the total modification price of $13,200.00, in addition to $3,321.8 allowed by the contracting officer’s final decision, and $742.00 under a July 30, 1999 invoice payment.
XVIII. H6 — Government Untimely Direction to Remove and Reinstall Previously Placed Concrete Barriers Along a New Alignment in the Vicinity of Station 6+258 to Station 6 + 819
The construction plans and drawings required CEMS to place the toe of the concrete barriers 2.45 meters from the existing guardrail from station 6+281 to station 6 + 720 and the center of the barrier to be 1.85 meters from the centerline, from station 6 + 720 to station 6 + 860. Special Contract Requirements subsection 152.02 provided that the FHA had set the initial reference lines and control points for the project, which included the “Roadway centerline.” By letter dated August 28, 1998, project engineer Chew sent *194 CEMS a typical section for station 6 + 280 to station 6 + 720 which aligned the toe of the concrete barriers 2.5 meters from the existing edge of pavement.
The daily logs of Mr. Thompson indicate that prior to the placement of the concrete barriers between station 6 + 258 to station 6 + 819, CEMS sought direction for the placement of the bari’iers. Mr. Thompson’s daily log for September 9, 1998, indicated that he began placing the concrete barriers at station 6+258 and noted that he does not have a fixed point for the reference due to FHA’s inability to respond to requests for direction. Project engineer Chew’s daily log for September 9, 1998 indicated that Mr. Thompson informed project engineer Chew that the construction plans and drawings were not clear and that based on Mr. Thompson’s placement of the concrete barriers, they were misaligned. Mr. Conway testified that because the construction plans and drawings relied upon the existing asphalt for the alignment of the concrete barriers in this area, and the existing pavement was irregular, the misalignment of the concrete barriers resulted.
XIX. 16 — Government Changes of Curbs, Grades, Planter, Pillars, and the Wall at the Bridge of the Gods Parking Area
The construction plans and drawings required the construction of the Bridge of the Gods Parking Area. The Bridge of the Gods Parking Area was designed for 15 parking spaces, encompassing approximately 780 square meters of asphaltic concrete pavement. The work also included the construction of a stone curb, drinking fountain, sidewalk, a stone masonry planter, ten stone masonry pillars, a stone masonry wall, and a kiosk, among other items of work.
The FHA issued contract modification no. 4 on October 5, 1998, for the additional work at the Bridge of the Gods Parking Area. Contract modification no. 4 redesigned the elevation grades of the parking area due to improper design elevations in the construction plans and drawings, and the revised design drawings were supplied to CEMS on June 8, 1998. In addition to the redesign of the elevation grades of the parking area at the Bridge of the Gods, the FHA revised a number of designs for the layout of the parking area, which included: 1) changed curbs; 2) redesign of the stone masonry planter; 3) redesign of the stone masonry stone pillar grades; 4) correction of elevation errors for a wall footing; 5) exposure of a city water line; 6) extension of the sidewalk; 7) redesign of the placement of the kiosk; and 8) an additional light fixture. Contract modification no. 4 was a fixed price modification of $22,606.84, and included a contract time extension of seven days.
Mr. Conway testified that CEMS was required to perform additional work at the Bridge of the Gods Parking Area, for which plaintiff seeks additional compensation. Mr. Conway testified to numerous items of additional work, including: 1) additional subcontracting surveying to assist in design changes; 2) additional clearing of the area; 3) locating existing fiber optic cables; 4) excavation of waterlines; 5) execution of the design changes for drainage; 6) changes to the planters; 7) submissions of shop drawings for certain aspects of the work; 8) suspension of work associated with the stone masonry work; 9) changes to curb design; 10) changes to sidewalk designs; 11) changes to pavement grades; 12) an additional light fixture; 13) additional work due to FHA improper staking and direction; 14) changes to the kiosk positioning; 15) changes to traffic control devises; 16) improper testing of subgrade and base compaction and grade; and 17) changes in the dimensions for certain concrete work.
DISCUSSION
I. Implied Duty Not to Hinder Performance and to Cooperate
The plaintiff contends that the defendant has breached its implied duty to cooperate and its implied duty not to hinder performance. There is an “implied provision of every contract, whether it be one between individuals or between an individual and the Government, that neither party to the contract will do anything to prevent performance thereof by the other party or that will hinder or delay him in its performance.” Lewis-Nicholson, Inc. v. United States, 213 *195 Ct.Cl. 192, 204 , 550 F.2d 26, 32 (1977) (citations omitted). Not only must the government not breach this implied provision, the government “must do whatever is necessary to enable the contractor to perform.” Id. (citations omitted). If the government’s delay in providing materials or finishing work stems from its failure to do what is necessary to allow the contractor to perform:
it will have to respond in damages for the resulting additional outlays which are proved to have been caused the contractor. Under this principle, the plaintiff cannot prevail merely by proving that there was a lapse of time in receiving materials or even that the defendant was the source of that lapse. The lapse of time must be tied to the defendant’s breach of its obligation of reasonable cooperation. The nature and scope of that responsibility is to be gathered from the particular contract, its context, and its surrounding circumstances. Once a breach of this type has been established, the contractor must still show, as in all contract cases, that damage ensued.
Commerce Int’l Co. v. United States, 167 Ct.Cl. 529 , 536, 338 F.2d 81, 85 (1964) (citations omitted).
In Precision Pine & Timber, Inc. v. United States, the court elaborated on the implied duty not to prevent, hinder or delay performance in a government contract. Precision Pine & Timber, Inc. v. United States, 50 Fed.Cl. 35, 58-59 (2001). The Precision Pine & Timber court identified the implied duty not to hinder performance of contracts and the implied duty to cooperate as subspecies of the implied duty of good faith. Id. at 59 . “If the contract contains a specific warranty, a breach of that warranty breaches the implied duty to cooperate.” Id. “[I]f there is no specific warranty, an unreasonable delay that is caused in some way by the Government can breach the implied duty not to hinder.” Id.; see also Lewis-Nicholson, Inc. v. United States, 213 Ct.Cl. at 205 , 550 F.2d at 32 (holding that government-caused delay in contractor performance violated the implied duty not to hinder performance of the other party).
With regard to the implied duty not to hinder a contractor’s performance, the United States Court of Appeals for the Federal Circuit has held that, “[e]very contract, as an aspect of the duty of good faith and fair dealing, imposes an implied obligation ‘that neither party will do anything that will hinder or delay the other party in performance of the contract.’ ” Essex Electro Eng’rs, Inc. v. Danzig, 224 F.3d 1283, 1291 (Fed.Cir.2000) (quoting Luria Bros. v. United States, 177 Ct.Cl. 676, 688 , 369 F.2d 701, 708 (1966)) (citations omitted). The implied duty to cooperate, on the other hand, has been described as follows: “When some government action is essential for the contractor to perform and the government wrongfully fails or refuses to take that action, then the government has breached its implied duty to cooperate.” Ryco Constr., Inc. v. United States, 55 Fed.Cl. 184, 192 (2002).
A. Claim Al — Government Delayed the Notice to Proceed
The plaintiff asserts that it is undisputed “that issuance of the notice to proceed was delayed three days by Government error in providing incorrect bonding amounts to CEMS and 13 days by other Government inaction.” The plaintiff further states that, “[a]s a result of Government acts or omissions, this delay was unreasonable.” The defendant has responded by asserting that “for CEMS to recover costs, it must show that the contracting officer unreasonably delayed the performance of the contract, which caused it to incur additional costs. CEMS cannot meet its burden.”
Actions that hinder or delay a contractor’s performance must be found unreasonable for the government to be found liable. See C. Sanchez & Son, Inc. v. United States, 6 F.3d 1539, 1542 (Fed.Cir.1993) (“The government must avoid actions that unreasonably cause delay or hindrance to contract performance.”). Moreover, the government has an “ ‘ever-present obligation to carry out its contractual duties within a reasonable time.’ ” Essex Electro Eng’rs, Inc. v. Danzig, 224 F.3d 1283, 1291 (Fed.Cir.2000) (quoting J.D. Hedin Constr. Co. v. United States, 171 Ct.Cl. 70, 97 , 347 F.2d 235, 253 (1965)). “ ‘[Reasonableness is, in each instance, a question of fact.’” Commercial Contractors, Inc. v. United States, 29 Fed.Cl. *196 654, 663 (1993) (quoting Parish v. United States, 120 Ct.Cl. 100, 125 , 98 F.Supp. 347, 349 (1951), cert. denied, 342 U.S. 953 , 72 S.Ct. 625 , 96 L.Ed. 708 (1952)); see also Scott Timber Co. v. United States, 333 F.3d 1358, 1369 (Fed.Cir.) (holding that the reasonableness determination for the appropriateness of the suspension of timber sale contracts was a question of fact), reh’g denied (2003); Gen. Dynamics Corp. v. United States, 187 Ct.Cl. 597, 606 , 410 F.2d 404, 409 (1969) (“The question of reasonableness is a question of fact.”).
The United States Court of Appeals for the Federal Circuit recently stated:
there is an implied obligation on the part of the government to issue the notice to proceed within a reasonable time. Ross Eng’g Co. v. United States, 92 Ct.Cl. 253 (1940). Therefore, damages for unreasonable delay in issuing the notice to proceed may be recovered under the suspension clause. See Triax-Pacific v. Stone, 958 F.2d 351, 354-55 (Fed.Cir.1992) (noting that a delay in issuing a notice to proceed is not remediable as a breach but that costs may be recovered as an equitable adjustment under the suspension of work clause).
Nicon, Inc. v. United States, 331 F.3d 878, 886 (Fed.Cir.2003).
The solicitation for the contract was issued on February 6, 1998, and the scheduled bid opening date was March 10, 1998. On March 6, 1998, the FHA issued contract modification no. 2 to the solicitation, informing potential bidders that the bid opening date would be extended by a third amendment to the solicitation. On March 10, 1998, the FHA issued contract modification no. 3 to the solicitation and changed the bid opening date to March 20, 1998. CO Parsons testified that the original notice to proceed issue date of April 1, 1998 was based on the original bid opening date of March 10, 1998. CO Parson explained why he did not extend the notice to proceed date when he issued amendment three, which extended the bid opening date to March 20,1998:
It was my election not to amend that clause and that date. We basically looked at a schedule of an advertising and bid opening date that coincided with — allowed us ample time to review bids, confirm responsibility, and award. It was close at the March 10th date, it was 10 days closer at March 20th. We did have very little time to award before — Well, we had sufficient time to award in advance of April 1 to basically meet the April 1st date, but at that time I was relying upon awarding as soon as we might in allowing for a day-for-day shift in that period of performance that clause set out and allowed.
The day-for-day shift alluded to by CO Parsons in his testimony was reflected in the language of the solicitation, which informed potential bidders of the notice to proceed date. The solicitation stated that:
The completion date is based on the assumption that the successful offeror will receive the notice to proceed by April 1, 1998. The completion date will be extended by the number of calendar days after the above date that the contractor receives the notice to proceed, except to the extent that the delay in issuance of the notice to proceed results from the failure of the contractor to execute the contract and give the required performance and payment bonds within the time specified in the offer.
The defendant cites the United States Court of Appeals for the Federal Circuit’s decision in M.A. Mortenson Co. v. United States, to suggest that because the issuance of the notice to proceed on April 1, 1998 was an “assumed” date, the government cannot be liable. See M.A Mortenson Co. v. United States, 843 F.2d 1360, 1362 (Fed.Cir.1988) (“An assumption [that the successful bidder will receive the notice to proceed by a certain date] is not a promise. The quoted language [in Mortenson ] did not bind the government to deliver a notice to proceed by any particular date____”). The Federal Circuit in M.A Mortenson Co. addressed the plaintiffs claim in that ease under the Changes clause of the contract, and held that the delay of the issuance of the notice to proceed was not com-pensable under that clause. See id. (“Because there was no ‘change’ in the contract for which the Changes clause would afford a remedy, the board did not err in declining to *197 award Mortenson the relief it sought.”). The Federal Circuit has held that “damages for unreasonable delay in issuing the notice to proceed may be recovered under the suspension [of work] clause.” Nicon, Inc. v. United States, 331 F.3d at 886 .
Plaintiff has raised the issue of whether the FHA breached its implied duty not to hinder CEMS’ performance when CO Parsons failed to issue the notice to proceed on April 1, 1998. Initially, the court considers CO Parsons’ decision not to extend the April 1, 1998 date for the issuance of the notice to proceed when he extended the date for the bid opening to March 20, 1998. CO Parsons testified that, based on his experience, the period of time normally required between bid opening and awarding the contract is “four-plus-or-minus weeks” and eleven days was “unduly short” to award the contract and issue the notice to proceed on April 1, 1998, with a bid opening of March 20,1998. When questioned why he did not extend the date for the issuance of the notice to proceed while extending the date for the bid opening, CO Parsons testified that he did not extend the April 1, 1998 date prior to bid opening because he determined that between the bid opening date of March 20, 1998, “the opportunity to expedite awards may happen.” CO Parsons testified that he did not choose to move the April 1, 1998 date, instead electing “to let the day-for-day slippage or the day-for-day adjustment of the contract period flow after April 1,” and indicated that choosing an arbitrary date for the extension of the issuance of the notice to proceed date would only serve to delay the work on the contract. The contract provided that if there was a delay in the issuance of the notice to proceed, the contract completion date would be extended by the number of days attributable to the delay. As provided for by contract provision, a day-for-day adjustment was made by the FHA, with the contract completion date extended by sixteen days to reflect the extension of the issuance of the notice to proceed from April 1, 1998 to April 16, 1998.
Under these facts, the court does not find that CO Parson acted unreasonably when he retained the April 1, 1998 notice to proceed date. The court, however, also must consider the FHA’s actions following the award date of April 6, 1998. By letter dated April 6, 1998, the FHA informed CEMS that it was awarded the contract. The April 6, 1998 letter instructed CEMS to submit performance and payment bonds. CO Parsons testified that the amounts indicated for the performance and payment bonds in the government’s April 6,1998 letter were incorrect. On April 14, 1998, CEMS submitted performance and payment bonds in the incorrect amount as provided by FHA’s April 6, 1998 letter. The performance and payment bonds transmittal letter, dated April 14, 1998, indicated that the FHA received the documents on April 16, 1998. After CEMS corrected the performance and payment bonds and submitted them to the FHA on April 16, 1998, the FHA was able to issue the notice to proceed on the same day, April 16,1998.
Based on the documents in evidence that demonstrate the exchanges between CEMS and the FHA, the court does not find that the FHA acted unreasonably. Even if the FHA’s April 6, 1998 contract award letter had indicated the correct amount of the performance and payment bonds, the FHA did not receive CEMS’ first incorrect, and then correct bonds, until April 16, 1998, and the FHA was able to issue the notice to proceed on that same date, April 16, 1998. Plaintiff has argued, but not demonstrated, that the FHA breached an implied duty not to hinder CEMS’ performance when it issued the notice to proceed on April 16, 1998, the same day CEMS submitted its performance and payment bonds, in both the incorrect and correct amounts.
B. A2 — Government Enforcement of Excessively Rigid and Arbitrary Surface Tolerances for Subgrade and Aggregate Courses.
Although the government may insist upon contractor compliance with the terms of the contract, “‘the government cannot impose a more stringent testing procedure or standard for demonstrating compliance than is set forth in the contract.’ ” SIPCO Servs., & Marine, Inc. v. United States, 41 Fed.Cl. 196, 217 (1998) (quoting United Technologies Corp., Sikorsky Aircraft Div. v. United *198 States, 27 Fed.Cl. 393, 397 (1992) (citations omitted)).
CEMS alleges that the government breached its implied duty to cooperate when delay occurred due to excessive supervision or control of the finishes of the subgrade and aggregate base course. The plaintiff alleges that the FHA’s over-testing and imposition of tests not specified by the contract resulted in a constructive change to the contract, rendering the government hable for the increased costs. According to the plaintiff, because of the FHA’s actions and inactions regarding both subgrades and aggregate base course finishes, CEMS’ budget and schedules were adversely impacted. CEMS states that for subgrade, the FHA improperly applied the stringent finishing specifications of subsection 204.13 of the FP-96, while the proper provision of the FP-96 was subsection 106.02, which provided for visual inspections. Regarding aggregate base finishes, CEMS alleges that the FHA inspected the work “excessively” and argues that the standards for the finishes of aggregate base are found in subsection 301.06 of the FP-96. CEMS also claims that the FHA “repeatedly changed. the grades to which CEMS was required to finish surfaces.” CEMS further alleges that the FHA used “improper” means for cheeking finished surfaces, employing devices that resulted in improper measurements.
The United States Court of Appeals for the Federal Circuit stated in Jowett, Inc. v. United States that:
In interpreting a contract, we begin with the plain language. We give the words of the agreement their ordinary meaning unless the parties mutually intended and agreed to an alternative meaning. In addition, we must interpret the contract in a manner that gives meaning to all of its provisions and makes sense.
Jowett, Inc. v. United States, 234 F.3d 1365, 1368 (Fed.Cir.2000) (citations omitted); see also Hunt Constr. Group, Inc. v. United States, 281 F.3d 1369, 1372 (Fed.Cir.2002) (“We begin with the plain language when interpreting a contract____ The contract must be considered as a whole and interpreted to effectuate its spirit and purpose, giving reasonable meaning to all parts.”) (citations omitted); Giove v. Dep’t of Transp., 230 F.3d 1333, 1340-41 (Fed.Cir.2000) (“In addition, we must interpret the contract in a manner that gives meaning to all of its provisions and makes sense. Further, business contracts must be construed with business sense, as they naturally would be understood by intelligent men of affairs.”) (citations omitted).
When the terms of a contract are clear and unambiguous, there is no need to resort to extraneous circumstances for its interpretation. See Sea-Land Serv., Inc. v. United States, 213 Ct.Cl. 555, 567 , 553 F.2d 651, 658 (1977), cert. denied, 434 U.S. 1012 , 98 S.Ct. 724 , 54 L.Ed.2d 755 (1978). Construction of an unambiguous writing, therefore, is an appropriate matter for summary judgment. See Martin v. United States, 20 Cl.Ct. 738, 745 (1990); Kelley v. United States, 19 Cl.Ct. 155, 161 (1989). A written agreement is ambiguous when a plain reading of the contract could result in more than one reasonable interpretation. See also Metric Constructors, Inc. v. NASA, 169 F.3d 747, 751 (Fed.Cir.1999); Grumman Data Sys. Corp. v. Dalton, 88 F.3d 990, 997 (Fed.Cir.1996); A-Transport Northwest Co. v. United States, 36 F.3d 1576, 1584 (Fed.Cir.1994) (“A contract is ambiguous only when it is susceptible to two reasonable interpretations.”); Tacoma Dep’t of Pub. Utils. v. United States, 31 F.3d 1130, 1134 (Fed.Cir.1994) (citing Hills Materials Co. v. Rice, 982 F.2d 514, 516 (Fed.Cir.1992)). It is not enough that the parties differ in their interpretation of the contract clause. See Cmty. Heating & Plumbing Co. v. Kelso, 987 F.2d 1575, 1578 (Fed.Cir.1993). Nor may a court look to extrinsic evidence in determining whether a contract is ambiguous. See McAbee Constr., Inc. v. United States, 97 F.3d 1431, 1435 (Fed.Cir.), reh’g denied and en banc suggestion declined (1996); Tacoma Dep’t of Pub. Utils. v. United States, 31 F.3d at 1134 (“Outside evidence may not be brought in to create an ambiguity where the language is clear.”); Interwest Constr. v. Brown, 29 F.3d 611, 615 (Fed.Cir.1994) (“Extrinsic evidence ... should not be used to introduce an ambiguity where none exists.”). However, because an ambiguous or uncertain writing sometimes can only be *199 understood upon consideration of the surrounding circumstances, extrinsic evidence will be allowed to interpret an ambiguous clause. See Sylvania Elec. Prods., Inc. v. United States, 198 Ct.Cl. 106, 126 , 458 F.2d 994, 1005 (1972).
For the bicycle path surface, the contract construction drawings provided for a roadway aggregate surface overlaid with minor asphalt concrete. Mr. Conway testified that for the construction of the bicycle path, CEMS would “grade the subgrade,” then the “[ajggregate base is brought in and roughly placed upon it,” and “[tjhen you place the asphaltic pavement.” The FP-96 defines “subgrade” as the “top surface of a roadbed upon which the pavement structure, shoulders, and curbs are constructed.” “Roadbed” is defined as the “graded portion of a highway prepared as a foundation for the pavement structure and shoulders.” The aggregate base course is governed by section 303 of the FP-96. According to subsection 308.03(a), prior to placement of the aggregate base course, the contractor was required to “[pjrepare the surface on which the aggregate course is placed according to Subsection 303.07.” Subsection 303.07(a) requires roadbeds to be “[f]inish[ed]... to the required line, grade, elevation, and cross-section.” The roadbed, therefore, required finishing prior to the placement of the aggregate base course. As noted above, the top of the roadbed is the subgrade, and as stated by Mr. Conway, CEMS was required to “grade the subgrade.”
The finishing requirements for the sub-grade are described in subsection 204.13(d), “Finishing”:
Remove all material larger than 150 millimeters from the top 150 millimeters of the roadbed. Remove unsuitable material from the roadbed and replace it with suitable material. Finish earth roadbeds to within ± 15 millimeters and rock roadbeds to within ± 30 millimeters of the staked line and grade. Finish ditch cross-sections to within ± 30 millimeters of the staked line and grade. Maintain proper ditch drainage.
The plaintiff asserts that subsection 204.13(d) does not apply to finishing of sub-grade because “it pertains to a limited amount of work for subgrades at ‘slopes, ditches, culverts, riprap, and other underground minor structures before placing courses.’ ” The language that the plaintiff asserts limits the applicability of subsection 204.13(d) is the introductory language of subsection 204.13, which states: “Sloping, Shaping, and Finishing. Complete slopes, ditches, culverts, riprap, and other underground minor structures before placing aggregate courses. Slope, shape, and finish as follows ____” The plaintiff, however, incorrectly limits the applicability of subsection 204.13 based on the introductory language of the subsection that instructs the contractor it must complete “underground minor structures” prior to the final preparations of the roadbed for the placement of the aggregate course. The overall structure of section 204 of the FP-96 does not support the plaintiffs argument. Section 204 describes the contractor’s responsibility for the excavation and embankment necessary for the roadway. Roadway is defined in the FP-96 as, “[i]n general, the portion of a highway, including shoulders, for vehicular use.” The roadbed is the graded portion of a highway prepared as a foundation for the pavement structure and shoulders, with the subgrade as the top surface of a roadbed upon which the pavement structure, shoulders, and curbs are constructed. Section 204 carefully addresses all aspects for the preparation of the roadway, the construction of the roadbed, and the construction of the underground minor structures, prior to the final finishing of the top portion of the roadbed, the subgrade. Subsection 204.13 provides instructions for the final preparations of the subgrade prior to the placement of the aggregate base course. The plaintiffs argument that subsection 204.13 does not apply to the subgrade is not persuasive in consideration of subsection 204.13, which dictates the work that must be performed prior to the laying of the aggregate base course.
Plaintiff also argues that because subsection 204.13(d) describes the finishing requirements for “rock roadbeds” and “earth roadbeds,” the subsection is not applicable to asphaltic concrete roadbeds as the roadbed *200 relevant to this project. The plaintiff mistakenly assumes that because subsection 204.13(d) describes the finishing required for rock and earth roadbeds, the subsection only applies to roadways with earth or rock as the surface course. 8 Roadbeds, however, are the foundation for the final pavement structure, the difference being the type of material used in the foundation. Indeed, earlier in section 204, the FP-96 defines rock roadbeds and earth roadbeds and specifies acceptable components of each. The plaintiff’s interpretation of subsection 204.13(d) that refers to “rock” and “earth” roadbeds is not reasonable since a roadbed is not the final surface, but is the foundation for the final surface. The words “rock roadbeds” and “earth roadbeds” do not indicate the final surface course that is the “top layer or layers of a pavement structure,” but indicate the foundation for the final pavement structure.
The plaintiffs’ argument that subsection 204.13(d) does not apply to the finishing requirements for the subgrade is not persuasive in consideration of the provisions of the required roadway construction requirements for the bicycle path project. Because the evidence at trial offered by the plaintiff did not establish that the FHA required finishing in excess of the requirements of subsection 204.13(d) of the FP-96, the plaintiffs claim fails.
The plaintiff also has alleged that the FHA Improperly enforced the aggregate base course finishes on the bicycle path project. OEMS alleges that the FHA inspected the finishing of the aggregate base course “excessively,” and would reject work even when aggregate base course finishing complied with contract requirements.
The contract required finishing for the aggregate base course in accordance with subsection 301.06 of the FP-96. Subsection 301.06 states that “[i]f grade finishing stakes are required, finish the surface to within ± 10 millimeters from staked fine and grade elevation.” Subsection 152.03(f) of the FP-96 governs grades finishing stakes, and states, “[s]et grade finishing stakes, for grade elevations and horizontal alignment, on centerline and on each shoulder at roadway cross-section locations. Set stakes at the top of subgrade and the top of each aggregate course.”
The plaintiff argues that the FHA used improper methods for the inspection of finished surfaces of the aggregate base course, improperly “compared the level surface of the aggregate [base course] to an irregular surface at the top of a stone curb,” and “repeatedly changed the grades to which OEMS was required to finish surfaces.”
Mr. Conway testified at trial that the defendant insisted on “excessively scrupulous, aggressive, hypercritical, excessively vigilant enforcement of the tolerances for finishing of the surfaces of the subgrade and the aggregate base courses” on the bicycle path. Mr. Conway testified to the use of a two-foot level for the acceptance or rejection of the aggregate base by government inspectors. Mr. Conway also testified to increased costs as a result of government direction to change and replace completed work of the subgrade and aggregate course. Mr. Conway stated, “[f]or example, certain slopes were changed, certain ditches were established or eradicated, grades were changed, things of that nature.” Mr. Thompson, at one time, the project superintendent on the bicycle path contract, testified that, at times, the defendant would check the grades on the subgrade and aggregate course two or three times in a single area of the construction before final government approval.
The construction diaries of the plaintiff and defendant evidence the type of finishing inspections and the changes of grades in the aggregate course. Mr. Conway’s daily log for July 29, 1998 states that the defendant had decided to redesign the grades due to an error in design in the area of the bicycle path designated as 4+220 and 4 + 565. On July 27, 1998, Mr. Conway’s daily log stated that inspector Parsons noted areas of the aggregate course at the Cascade Fish Hatchery Parking Lot that were a “few millimeters low *201 or high” and would not approve the finishing. Mr. Conway’s July 28, .1998 daily log noted that on June 15,1998, the defendant directed the plaintiff to rework the grade elevations “that were different from those indicated in the original and revised plans.”
Mr. Cox’s daily log states that on July 24, 1998 inspector Parsons, “did not like how we [CEMS] graded the CFH [Cascade Fish Hatchery] parking lot'to the curbs[,] we had AA [Surveying] stake it ... spent all day hand raking & compacting.” On August 4, 1998, Mr. Cox’s daily log states that FHA project engineer Chew:
wrote several spots that were 1 to 3 cm high or low. I asked them last week to do this & they said they did & it was acceptable (see log). Now that Benge is here to pave it, just like I told the [sic] last week they would be, they no longer like it so we are regrading it at 9:30 AM.
On October 1,1998, Mr. Cox’s daily log notes that the Bridge of the Gods parking lot needed to be regraded, “[f]or the last two days they [government inspectors] have told him [Mr. Thompson] it looks good just a little fine grading on the edges now they say it is all wrong.”
Mr. Thompson’s daily log cites the instances of defendant’s approval of the aggregate surface. On September 30, 1998, Mr. Thompson’s daily log states that the government inspectors “double checkfed]” previously approved surfaces prior to paving. On October 1, 2003, Mr. Thompson wrote the following: “I, then, went to shoot grade to try to finish for approval. I will keep trying to get it. My crew tried several more times to appease Clifford’s [Mr. Chew’s] difficult demands, but fell short each time.”
Inspector Parsons testified at the trial that he often inspected the finishes of the bicycle path work with a two-foot “SmartLevel.” Inspector Parsons testified that he would notify project engineer Chew of deviations of the ten to fifteen millimeters over the two foot length of the SmartLevel, and would reject the plaintiffs work based on those measurements. Inspector Parsons testified that measurements obtained from the use of a SmartLevel can lead one to think that a grade is “more out of tolerance than you could imagine.” Inspector Parsons’ daily log noted that FHA rejected work based on the inspector using the SmartLevel. CEMS employees who worked on the bicycle path also testified that often hand raking of the bicycle path grades was required to comply with the requests of FHA inspectors.
The changed grades of the bicycle project also produced difficulty when, according to FHA inspector McNichols’ daily log, the FHA “had to make a lot of [changes] to the ditch & other areas in the field due to the frequency of asphalt in underlying areas & that in some places it was 15” thick.” CEMS daily logs also indicate that project engineer Chew “acknowledged that he had made a mistake regarding the grades for the trail subgrade in the vicinity of 4 + 220 to 4 + 565.”
The defendant asserts that the plaintiff has offered allegations of improper inspections of the aggregate base courses and changes of grades “without proof.” The defendant further asserts:
evidence shows that where the Government changed grades, it compensated CEMS. Government insistence that CEMS build to grades previously established does not constitu

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6652435. Public record. Not legal advice.