# George Sollitt Construction Co. v. United States

> United States Court of Federal Claims · February 23, 2005 · 64 Fed. Cl. 229

URL: https://www.frixlaw.com/law-library/cases/6653511

## Case

- **Full name:** GEORGE SOLLITT CONSTRUCTION CO. v. United States
- **Court:** United States Court of Federal Claims
- **Decided:** February 23, 2005
- **Citations:** 64 Fed. Cl. 229; 2005 U.S. Claims LEXIS 52; 2005 WL 433617
- **Precedential status:** Published
- **Opinion:** Opinion of the court by Bush
- **Judges:** Bush
- **Cited by:** 46 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/6653511

## How later opinions describe it (automated extraction)

- finding that “[i]f the contractor suffers increased costs because of government action or inaction which effectively suspends the contractor’s progress on contract work, [the suspension of work] clause may provide a remedy.”
- stating that an extended field office overhead claim “requests damages for costs that are increased due to maintaining a presence at the construction site for a longer period than originally anticipated in the bid”
- explaining that government-caused delays “will not be compensable if the contractor, or some other factor not chargeable to the government, has caused a delay concurrent with the government-caused delay”
- rejecting claims for additional expenses for the exterior masonry where even if contractor had proved that unreasonable delays by the Navy delayed exterior masonry work, contractor did not prove that the Navy-caused delays were the sole proximate cause of the delayed start to …

## Opinion text

OPINION
BUSH, Judge.
This construction contract dispute is before the court following a trial in August 2003. Pre- and post-trial briefs have been filed by the parties. 1 An extensive record of the trial is embodied in the transcript (Tr.), joint exhibits (JE), government exhibits (GE), and Sollitt exhibits (SE). The fact witnesses for both parties 2 were helpful and *235 for the most part credible, and the expert witnesses 3 contributed them insights into construction delay estimates. This opinion resolves all outstanding issues 4 in this case.
BACKGROUND
I. Factual Background
On February 27, 1995, the United States Department of the Navy (Navy) awarded George Sollitt Construction Company (Sollitt) contract N62467-94-C-0971 for the renovation of two existing buildings (Buildings 122 and 2B), an addition to Building 122 to house a “ship’s trainer,” and new construction of a Pump House and two “Range Buildings,” all at the Naval Training Center, Great Lakes, Illinois (NTC).
The contract work, valued at $15,450,000 and scheduled to begin on March 14, 1995, was to be conducted in three phases. Phase I of the contract required Sollitt to complete the renovation of Building 122, build an addition to that building, (Area C, housing the ship’s trainer) and construct two Range Buddings by February 7, 1996. Phase II of the contract involved the renovation of Building 2B, and also included the cost of a new Pump House for the installation of fire protection pumping equipment. Phase II was to be completed by May 31,1996. Phase III of the contract required Sollitt to complete site work and landscaping, including installation of new concrete paving, curbs, sidewalks, steps, ramps and utility connections. Phase III was also to be completed by May 31, 1996.
This project was part of the Base Realignment and Closure (BRAC) process, mandated by Congress. The buildings being constructed or renovated at NTC would replace existing training schools at other Navy facilities that were scheduled for closing, or in certain eases, had already started the decommissioning process. According to the Navy’s intended construction timeline, after Sollitt had completed the construction and renovation at NTC, a Navy follow-on contractor was scheduled to install specialized Navy equipment for the schools. This follow-on installation had to be accomplished prior to a “ready for training” date set by the closing of current schools. The Navy’s follow-on contractor had a window of time scheduled for this project. If construction was delayed, the Navy’s follow-on contractor would not be available to install equipment, due to other commitments, and the scheduled instruction would be interrupted and delayed. The parties entered into a partnering agreement, which included a provision for regular communication about construction problems and their solutions.
Notwithstanding the importance of timely completion, the construction phases were not completed on time. 5 A variety of monetary disputes arose between the Navy and Sollitt during the course of construction, and Sollitt submitted a claim for equitable adjustment of the contract to the contracting officer on October 3, 1997. The contracting officer issued a final decision on December 21, 1998, and the Navy issued its final modification of the contract, Modification P00055, on April 28, 1999. On December 6, 1999, Sollitt filed its complaint in this court. An audit of Sollitt’s claim was performed by the Defense Contract Audit Agency (DCAA audit), which *236 found that “the claim is an acceptable basis for negotiation of a fair and reasonable settlement amount.” JE 231. However, no settlement was achieved and trial was held in August 2003.
II. Legal Issues
A. Index of Legal Issues Presented by the Counts
Sollitt’s claims have been grouped into nineteen counts. Several of these counts are further divided into subparts related to specific contract work items. In this section of the opinion, the court first provides an index of the legal issues found in the contested 6 counts of Sollitt’s complaint. The court then reviews the legal standards which apply to these issues. In the following section of the opinion, the court proceeds count by count (and subpart by subpart) to apply the pertinent legal standard to each claim presented in this case and to award Sollitt damages where they are due.
1. Compensable Delay
Compensable delay is the main issue in three counts of Sollitt’s complaint: Count I asks primarily for extended overhead costs because of an allegedly justified equitable extension of the contract completion dates for Phases II and III of construction; Count II asks for increased labor costs because Phases I, II and III of construction were allegedly delayed by the Navy past the contract completion date and new and higher labor rates applied thereafter; and, Count IV asks for the extra costs of winter work allegedly caused by Navy delays.
2. Excusable Delay
Excusable Delay is the other issue set forth by plaintiff in Count I: Sollitt alleges that the Navy delayed construction and thus that the $235,200 in liquidated damages assessed by the Navy should be returned to Sollitt.
3. Proof of Equitable Adjustment Claims
Proof of equitable adjustment claims for work added to or deducted from the contract is the issue asserted in Counts V through XV.
4. Navy’s Discretionary Power to Grant or Deny Performance Awards
The scope of the Navy’s discretionary power to grant or deny performance awards underlies Count XVIII.
5. Prompt Payment Act and Interest
Whether the Prompt Payment Act applies to provide interest on Sollitt’s claims underlies Count XVI, a request for interest on Navy-deducted amounts from progress payments on Sollitt’s monthly invoices, and Count XIX, a general request for interest on all claimed damages awarded to Sollitt in this suit. Both parties agree that the Contract Disputes Act, 41 U.S.C. §§ 601-613 (2000) (CDA) provision of interest applies to claims upon which Sollitt prevails.
B. Overview of Legal Issues
1. Compensable Delay
a. Government liability for an equitable adjustment may lie when the government has caused delay to the contractor’s performance
Under the standard Suspension of Work clause found in government fixed-price construction contracts, 48 C.F.R. § 52.242-14 '(2004), the United States may be liable for causing delays to contract work. 7 If the *237 contractor suffers increased costs because of government action or inaction which effectively suspends the contractor’s progress on contract work, this clause may provide a remedy. E.g., Merritt-Chapman & Scott Corp. v. United States, 192 Ct.Cl. 848 , 429 F.2d 431, 443-44 (1970). Liability is just one element of proof that is required for a successful equitable adjustment claim, however. The Federal Circuit has stated that three elements are required to justify an equitable adjustment to a contract: “liability, causation, and resultant injury.” Servidone Constr. Corp. v. United States, 931 F.2d 860, 861 (Fed.Cir.1991) (citing Wunderlich Contracting Co. v. United States, 173 Ct.Cl. 180 , 351 F.2d 956, 968 (1965)).
b. Government liability is limited to its unreasonable delays
For the government to be found liable for an action or inaction that delays contract work, the delay in question must be unreasonable. See John A Johnson & Sons, Inc. v. United States, 180 Ct.Cl. 969, 986 , 1967 WL 8810 (1967) {Johnson & Sons) (approving and quoting the principle stated in the decision below that an equitable adjustment is warranted when “ ‘the resulting [government-caused] interruption or delay is for an unreasonable length of time causing additional expense or loss to a contractor’ ”). Only unreasonable government delays are compensable because there are “some situations in which the government has a reasonable time to make changes before it becomes hable for delay.” Essex Electro Eng’rs, Inc. v. Danzig, 224 F.3d 1283, 1289 (Fed.Cir. 2000). The Suspension of Work clause employs the term unreasonable to describe compensable delays:
(b) 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. However, no adjustment shall be made under this clause for any suspension, delay, or interruption to the extent that performance would have been so suspended, delayed, or interrupted by any other cause, including the fault or negligence of the Contractor, or for which an equitable adjustment is provided for or excluded under any other term or condition of this contract.
48 C.F.R. § 52.212-12 (b) (1994); 48 C.F.R. § 52.242-14 (b) (2004). Whether a government-caused delay is reasonable or unreasonable depends on the particular circumstances of the case. P.R. Burke Corp. v. United States, 277 F.3d 1346, 1360 (Fed.Cir.2002). “What is a reasonable period of time for the government to do a particular act under the contract is entirely dependent upon the circumstances of the particular case.” Tri-Cor, Inc. v. United States, 198 Ct.Cl. 187 , 458 F.2d 112, 131 (1972) (citing Specialty Assembling & Packing Co. v. United States, 174 *238 Ct.Cl. 153 , 355 F.2d 554, 565 (1966)). Delays due to defective contract specifications, however, are per se unreasonable. Essex Electro, 224 F.3d at 1289 .
c. Government action or inaction must be the sole proximate cause of the delay
For the government to be found to have caused compensable delay, the general rule is that the government must have been “the sole proximate cause of the contractor’s additional loss, and the contractor would not have been delayed for any other reason during that period.” Triax-Pacific v. Stone, 958 F.2d 351, 354 (Fed.Cir.1992) (citing Merritt-Chapman & Scott Corp. v. United States, 208 Ct.Cl. 639 , 528 F.2d 1392, 1397 (1976)). The “sole proximate cause” concept is also found in the text of the Suspension of Work clause:
However, no adjustment shall be made under this clause for any suspension, delay, or interruption to the extent that performance would have been so suspended, delayed, or interrupted by any other cause, including the fault or negligence of the Contractor, or for which an equitable adjustment is provided for or excluded under any other term or condition of this contract.
48 C.F.R. § 52.212-12 (b) (1994); 48 C.F.R. § 52.242-14 (b) (2004). Thus, even if the government has caused an unreasonable delay to contract work, that delay will not be compensable if the contractor, or some other factor not chargeable to the government, has caused a delay concurrent with the government-caused delay. In Triax-Pacific , for example, the Federal Circuit held that because the plaintiff had also caused delay to contract performance, it was not entitled to an equitable adjustment for government-caused delays under the Suspension of Work clause. 958 F.2d at 354 .
d. The burden of proof for compensable delay is borne by the contractor
When an equitable adjustment is being sought for government-caused delay, “the contractor has the burden of proving the extent of the delay, that the delay was proximately caused by government action, and that the delay harmed the contractor.” Wilner v. United States, 24 F.3d 1397, 1401 (Fed.Cir.1994) (en banc). In some cases, this burden may be met if the contractor proves four elements: the government’s delay was of unreasonable length, the government was the proximate cause of the contractor’s delayed performance, the contractor was injured, and there was no concurrent delay on the part of the contractor. P.J. Dick Inc. v. Principi, 324 F.3d 1364, 1374-75 (Fed.Cir. 2003); CEMS, Inc. v. United States, 59 Fed.Cl. 168, 230 (2003). Justification of an equitable adjustment for delay-related damages is more complex, however, when both parties have contributed to delays affecting the project.
e. The contractor bears the burden of separating and apportioning concurrent delays
The general rule barring recovery for government-caused unreasonable delay when there has been concurrent delay 8 caused by the contractor does permit recovery, however, when “ ‘clear apportionment’ ” of the delay attributable to each party has been established. E.g., T. Brown Constructors, Inc. v. Pena, 132 F.3d 724, 734 (Fed.Cir.1997) (quoting Coath & Goss, Inc. v. United States, 101 Ct.Cl. 702 , 715, 1944 WL 3694 (1944)). Because the equitable adjustment claim for compensable delay is the contractor’s claim, the burden is on the contractor to apportion the delay between the parties. E.g., William F. Klingensmith, Inc. v. United States, 731 F.2d 805, 809 (Fed.Cir.1984). “Generally, courts will deny recovery where the delays *239 are ‘concurrent or intertwined’ and the contractor has not met its burden of separating its delays from those chargeable to the Government.” Blinderman Constr. Co. v. United States, 695 F.2d 552, 559 (Fed.Cir.1982).
f. The contractor must prove the extent of the government-caused delay, and its increased costs, to prove its injury
To prove the “resultant injury” to the contractor from government-caused unreasonable delay, Servidone, 931 F.2d at 861 , the contractor must prove the extent of the delay attributable to the government, see Wilner, 24 F.3d at 1401 (stating that “the contractor has the burden of proving the extent of the delay”), and that the delay caused the contractor to incur additional costs, see Johnson & Sons, 180 Ct.Cl. at 986 (identifying compensable delay as “‘causing additional expense or loss to a contractor’ ”); see also Wilner, 24 F.3d at 1401 (stating that the contractor must prove “that the delay harmed the contractor”). There are two types of additional costs alleged in Sollitt’s delay-based claims here: additional costs related to the expense of performing certain contract work in winter (Count IV) and additional costs caused by the delayed completion of the project past a projected completion date (Counts I and II).
g. The increased costs of winter construction may be compensable
Construction during winter months may be more expensive than the same work performed during temperate weather. The Court of Claims commented that some winter construction “necessarily entail[s] considerable unusual expense.” Owen v. United States, 44 Ct.Cl. 440, 445 , 1908 WL 758 (1909). This court and its predecessor courts have sometimes found compensable delays where government-caused unreasonable delays pushed construction activities into the winter months, when these activities were originally scheduled for a different time of year. See, e.g., J.D. Hedin Constr. Co. v. United States, 171 Ct.Cl. 70 , 347 F.2d 235, 256 (1965) (awarding monies for “additional temporary heating during the construction in the winters”); Owen, 44 Ct.Cl. at 445-46 (awarding monies to compensate for the “considerable loss” incurred due to winter work); Young dale & Sons Constr. Co. v. United States, 27 Fed.Cl. 516, 547, 557 (1993) (awarding monies for the labor inefficiencies of winter weather work); Am. Line Builders, Inc. v. United States, 26 Cl.Ct. 1155, 1211-12 (1992) (awarding monies for the additional costs for winter work). The court may deny an equitable adjustment, however, if the contractor fails to prove that, but for the government delay, the contract work would have been completed before the onset of the winter weather. See, e.g., Kit-San-Azusa, J.V. v. United States, 32 Fed.Cl. 647, 656 (1995) (denying recovery for this reason, among others).
h. The increased costs of winter work may be apportioned for concurrent delays
Apportionment of additional costs encountered by working in the winter months, when there have been concurrent delays caused by the government and the contractor, is appropriate, and may be achieved by awarding a proportion of winter-related costs based on a mathematical formula derived from the amount of delay attributable to each party. The Court of Claims applied such a formula in Luria Bros. & Co. v. United States, 177 Ct.Cl. 676 , 369 F.2d 701 (1966):
Since there was an overrun on the contract performance time of 518 days, of which 420 days have been found to be chargeable to the defendant as unreasonable, some pro-ration of the cost to the plaintiff of such delay is indicated. Accordingly, 81 percent of the plaintiff’s cost of delay is chargeable to the defendant.
Id. at 740 . In that case, the contractor was awarded monies for “protection” of exterior masonry done in the winter, including “salt, hay, tarpaulins, salamanders and labor.” Id. at 741 . The court applied an eighty-one percent proration to all of the contractor’s delay-related costs, including winter protection of exterior masonry and loss of labor productivity when performing winter work. Id. at 744-46 . A few years later, the Court of Claims again contemplated an apportionment of winter construction costs, when it remanded a case to a contract appeals panel to determine “whether any part of the delay *240 in enclosing the building was due to the fault of the Government, and if so, how much [of the additional costs for winter labor] is compensable under the Suspension of Work clause.” Chaney & James Constr. Co. v. United States, 190 Ct.Cl. 699 , 421 F.2d 728, 739 (1970). Thus, in the case of concurrent delays that push construction work into the winter months, the contractor may receive an equitable adjustment for the increased costs of winter work, if the delays can be apportioned on the record before the court.
i. When establishing the extent of government-caused delay to project completion, the contractor bears the burden of proving critical path delays
In order to prevail on its claims for the additional costs incurred because of the late completion of a fixed-price government construction contract, “the contractor must show that the government’s actions affected activities on the critical path 9 of the contractor’s performance of the contract.” Kinetic Builder’s Inc. v. Peters, 226 F.3d 1307, 1317 (Fed.Cir.2000) (citing Essex Electro, 224 F.3d at 1295 -96 and Sauer Inc. v. Danzig, 224 F.3d 1340, 1345-46 (Fed.Cir.2000)). “‘The reason that the determination of the critical path is crucial to the calculation of delay damages is that only construction work on the critical path had an impact upon the time in which the project was completed.’ ” Wilner, 24 F.3d at 1399 n. 5 (quoting G.M. Shupe, Inc. v. United States, 5 Cl.Ct. 662, 728 (1984)). “One established way to document delay is through the use of Critical Path Method (CPM) schedules and an analysis of the effects, if any, of government-caused events upon the critical path of the project.” PCL Constr. Servs., Inc. v. United States, 47 Fed.Cl. 745, 801 (2000).
A government delay which affects only those activities not on the critical path does not the delay the completion of the project. As the Claims Court stated in G.M. Shupe:
If work on the critical path was delayed, then the eventual completion date of the project was delayed. Delay involving work not on the critical path generally had no impact on the eventual completion date of the project.
5 Cl.Ct. at 728 . It is the contractor’s burden to establish the critical path of the project in order to justify an equitable adjustment based on an extension of the completion date of the project. See CEMS, Inc., 59 Fed.Cl. at 233 (denying recovery because the plaintiff had not met this burden). In PCL, this court denied recovery for government-caused delay because the contractor “never provided [the government] or this court with a critical path analysis of the alleged government-caused hindrance and its effect upon the critical path of this project” and concluded that the contractor “did not demonstrate that its project delay was caused exclusively or even predominantly by the government.” 47 Fed.Cl. at 802, 804 . “[W]hen the contract utilizes CPM scheduling, the contractor must prove that the critical path of work was prolonged in order to prove a delay in project completion.” Hoffman Constr. Co. of Or. v. United States, 40 Fed.Cl. 184, 197-98 (1998), aff'd in part, rev’d in part on other grounds, 178 F.3d 1313 (Fed.Cir.1999).
j. Because the critical path changes over time, critical path schedule updates are needed to analyze delays
The critical path of construction activities may change as a project is actually built, and “activities that were not on the original critical path subsequently may be added.” Sterling Millwrights, Inc. v. United States, 26 Cl.Ct. 49, 75 (1992). Accurate CPM schedule updates are required during the course of *241 construction to reflect delays and shifts in the critical path, “[I]f the CPM is to be used to evaluate delay on the project, it must be kept current and must reflect delays as they occur.” Fortec Constructors v. United States, 8 Cl.Ct. 490, 505 (1985), aff'd, 804 F.2d 141 (Fed.Cir.1986). Accurate CPM schedule updates produced during actual construction are better evidence of the critical path than the baseline CPM schedule provided at the beginning of the project. As this court acknowledged in Blinderman Constr. Co. v. United States, 39 Fed.Cl. 529 (1997), “accurate, informed assessments of the effect of delays upon critical path activities are possible only if up-to-date CPM schedules are faithfully maintained throughout the course of construction.” Id. at 585 .
k. The contractor bears the burden of apportioning concurrent critical path delays
If the evidence shows that the contractor, along with the government, caused concurrent delay to the critical path of a project, the contractor must apportion the delays affecting the completion of the project to be able to recover delay damages. Blinderman, 695 F.2d at 559 ; Avedon Corp. v. United States, 15 Cl.Ct. 648, 653 (1988). “Courts will deny recovery where the delays are concurrent and the contractor has not established its delay apart from that attributable to the government.” Klingensmith, 731 F.2d at 809 . Because concurrent delays which do not affect the critical path of contract work do not delay project completion, an accurate critical path analysis is essential to the determination of whether concurrent delays have caused delay damages related to the delayed completion of a complex construction project. If government-caused delays “did not interfere with the project’s critical path,” no costs related to delayed completion of the project are owed to the contractor. Kelso v. Kirk Bros. Mech. Contractors, Inc., 16 F.3d 1173, 1177 (Fed.Cir. 1994). To recover for the delayed completion of the project, “[n]ot only must plaintiff disentangle its delays from those allegedly caused by the government, but the delays must have affected activities on the critical path.” Mega Constr. Co. v. United States, 29 Fed.Cl. 396, 424 (1993) (citation omitted).
l. One type of injury to the contractor from government-caused delays to the completion of a project is that of wage increases which would not have occurred during the planned time of performance
There are two types of alleged additional costs caused by the delayed completion of this project past its original completion date. In Count II, the additional costs claimed by Sollitt due to the delayed completion of the project are labor costs which escalated after the projected completion date of the project. This type of additional expense may sometimes be recovered as delay damages. In Luria Bros., the Court of Claims awarded a proportion of the wage increases paid by the contractor after the projected completion date of the project. 177 Ct.Cl. at 743, 746 . Similarly, in J.D. Hedin, the Court of Claims held that a contractor could recover delay damages, because, “[a]s a result of the government-caused delays heretofore described, the project was shifted into a period of higher wages for laborers.” 347 F.2d at 256 . The contractor must prove the extent of the delay, Wilner, 24 F.3d at 1401 , and the amount of the harm caused by that delay, Servidone, 931 F.2d at 861, to recover on its equitable adjustment claim for increased labor costs.
m. The contractor must prove the amount of home office and field office overhead that is related to the government-caused delay of project completion
In Count I, Sollitt claims extended home office and field office overhead related to the delayed completion of Phases II and III of the project. Extended home office overhead costs are a type of delay damages that may sometimes be recovered. As the Federal Circuit stated in West v. All State Boiler, Inc., 146 F.3d 1368 (Fed.Cir.1998) (All State Boiler):
Where the government suspends performance of a contract, the contractor’s indirect costs, such as home office [overhead], often accrue beyond the amount originally allocated to that particular contract. These additional indirect costs may thus be “un *242 absorbed.” The Court of Claims consistently allowed a contractor to recover not only additional direct costs that accrue to a contract where completion of performance is delayed by the government, but also any unabsorbed, indirect costs that result.
Id. at 1372 (citing Fred R. Comb Co. v. United States, 103 Ct.Cl. 174, 184 , 1945 WL 4033 (1945)). Extended field office overhead also may sometimes be recovered as delay damages. In Luria Bros., for example, the Court of Claims awarded a proportion of the field supervision costs incurred by the contractor after the projected completion date of the project. 177 Ct.Cl. at 741, 746 .
n. When the parties stipulate to the daily costs of home office and field office overhead, the contractor must prove the extent of the government-caused delay but is relieved of some other elements of proof of its increased costs
When the daily costs of field office and home office overhead have been stipulated, 10 as is the case here, SE 2007 at 1, the award of extended overhead costs may be derived from the sum of the proven government-caused unreasonable delays which slowed the completion of the project. In All State Boiler, the Federal Circuit affirmed a VABCA decision that awarded delay damages derived from a finding of twenty-two days of government-caused delay and an auditor’s figure of a home office overhead daily rate of $718. 146 F.3d at 1371, 1382 . The daily home office overhead costs were simply multiplied by the number of delay days which were chargeable to the government. Id. In eases of concurrent delay to the critical path, the calculation would also include apportionment of the delays to arrive at a percentage of extended overhead costs for which the government would be liable. Luria Bros., 177 Ct.Cl. at 740, 746 . 11
o. When multiple delays by one party are concurrent with each other, that party’s delays must be analyzed to ensure that the overall effect of these multiple delays is correctly attributed to that party
One final complication with concurrent delays is the inquiry into whether one party’s *243 multiple delays are concurrent with each other in addition to being concurrent with the other party’s delays. By necessarily focusing only on critical path activities that are delayed, the court makes this inquiry somewhat simpler. Among all critical path delays, the court first examines the proven delays caused by only one party to make sure that the delay days which are concurrent with each other are not counted more than once. As the Federal Circuit explained in Essex Electro, the “overall effect” of one party’s delays must be measured against the overall delay caused by the other party and that this is done by correctly accounting for each party’s delays which “might have been concurrent with each other.” 224 F.3d at 1296. Then, the court apportions the overall critical path concurrent delays from each party to determine the contractor’s entitlement to an equitable adjustment. The Federal Circuit decided that this approach of comparing one party’s overall delays with the other party’s overall delays is more reliable than checking each delay from one party against a possible concurrent delay from the other party for a series of subtotal periods of entitlement. Id. To assist in the complex analysis, when multiple delays by one party are alleged to have impacted the critical path, accurate and updated CPM (critical path method) schedules are essential tools in the court’s concurrent delay analysis. As this court stated in Blindemian, “the only way to accurately assess the effect of the delays alleged ... on the ... project’s progress is to contrast updated CPM schedules prepared immediately before and immediately after each purported delay.” 39 Fed. Cl. at 585 .
2. Excusable Delay
a. The government has the initial burden of showing late completion, and the contractor then has the burden to show that the delay was excusable
In the context of litigating liquidated damages assessed by the government in a construction contract, the government first must meet its initial burden of showing that “the contract performance requirements were not substantially completed by the contract completion date and that the period for which the assessment was made was proper.” PCL Constr. Servs., Inc. v. United States, 53 Fed.Cl. 479, 484 (2002) (internal quotation and citation omitted), aff'd, 96 Fed.Appx. 672 (Fed.Cir.2004). Once the government has met that burden, the burden then shifts to the contractor “to show that any delays were excusable and that it should be relieved of all or part of the assessment.” Id. (internal quotation and citation omitted). One type of excusable delay occurs when the government has delayed the project work, forcing the contractor to miss the contract completion deadline. “ ‘[W]here a contractor is prevented from executing his contract according to its terms, he is relieved from the obligations of the contract [as to the time of completion] and from paying liquidated damages.’ ” Schmoll v. United States, 91 Ct.Cl. 1, 28 , 1940 WL 4133 (1940) (quoting Levering & Garrigues Co. v. United States, 73 Ct.Cl. 566, 578 , 1932 WL 2094 (1932)). When the alleged excuse for the delay is action or inaction by the government, there is some controversy as to whether any government delay to contract completion, if proved, completely voids a contract’s liquidated damages provision, or whether apportionment of liquidated damages is possible where there has been concurrent delay by both parties. Compare R.P. Wallace, Inc. v. United States, 63 Fed. Cl. 402, 413 (2004) (stating that the apportionment of liquidated damages is permissible) with PCL, 53 Fed.Cl. at 486 (stating that “[t]he status of the rule against apportionment [of liquidated damages when the government has contributed to the delay of contract performance] in the ... Federal Circuit is unsettled”).
b. When the government has caused part of the delay to project completion, liquidated damages are either waived or the liquidated damages may be apportioned
The rule against apportionment of liquidated damages when the government has *244 contributed to the delay in contract completion was clearly stated in United States v. United Eng’g & Constructing Co., 234 U.S. 236 , 49 Ct.Cl. 689 , 34 S.Ct. 843 , 58 L.Ed. 1294 (1914):
We think the better rule is that when the contractor has agreed to do a piece of work within a given time, and the parties have stipulated fixed sum as liquidated damages, not wholly disproportionate to the loss for each day’s delay, in order to enforce such payment the other party must not prevent performance of the contract within the stipulated time; and that where such is the case, and thereafter the work is completed, though delayed by the fault of the contractor, the rule of the original contract cannot be insisted upon, and liquidated damages measured thereby are waived.
Id. at 242 , 34 S.Ct. 843 . The Court of Claims employed the rule against apportionment of liquidated damages in Acme Process Equip. Co. v. United States, 171 Ct.Cl. 324 , 347 F.2d 509 (1965), rev’d on other grounds, 385 U.S. 138 , 87 S.Ct. 350 , 17 L.Ed.2d 249 (1966). In that case, the Court of Claims held that “the defendant merely loses its right to insist on an artificial measure of damages agreed on by the parties for the situation in which the contractor alone is responsible for the delay,” because a “plaintiff is entitled to recover on its claim for remission of liquidated damages [when] the delays on which the assessment was based were caused by the Government as well as by [the plaintiff]”. Id. at 534. The rule against apportionment has been extensively followed by this court’s predecessors (the United States Court of Claims and the United States Claims Court) and some boards of contract appeals, see PCL, 53 Fed.Cl. at 485 (listing cases), but the rule has been criticized and ignored in other cases, see, e.g., R.P. Wallace, 63 Fed.Cl. at 410-13 ; see also PCL, 53 Fed.Cl. at 485-86 (listing eases).
The rule against apportionment of liquidated damages appears to have been ignored in many recent boards of contract appeals decisions. See, e.g., William F. Klingensmith, Inc., ASBCA No. 52028 , 03- 1 B.C.A. (CCH) 1132 , 072 (Nov. 15, 2002); Karcher Envtl., Inc., PSBCA Nos. 4085, 4093, 4282, 02-1 B.C.A. (CCH) ¶31,787, 2002 WL 246774 (Feb. 21, 2002). The Federal Circuit did not apply the rule against apportionment of liquidated damages in a recent decision, but did not comment on its nonobservance of the rule. Sauer, 224 F.3d at 1347 . In Sauer, the Federal Circuit upheld an ASBCA decision which remitted only a portion of the assessed liquidated damages when both the contractor and the government delayed contract work completion. Id. Thus, the Sauer court approved of an apportionment of liquidated damages. Id. This court has also apportioned liquidated damages where concurrent government and contractor delays affected contract completion, without commenting on the rule against apportionment. See Neal & Co. v. United States, 36 Fed.Cl. 600, 647, 649 (1996) (referring to “over-withheld liquidated damages” and returning only a portion of these).
Recently, this court, in a thorough analysis of the possibility of apportioning liquidated damages when the government has contributed to the delay of contract completion, followed Sauer and cited a number of decisions applying the rule from Robinson v. United States, 261 U.S. 486 , 43 S.Ct. 420 , 67 L.Ed. 760 (1923), which allowed the apportionment of liquidated damages. R.P. Wallace, 63 Fed.Cl. at 410-13 . In light of the extensive discussions in PCL and R.P. Wallace of the rule against apportionment and the conflicting rule allowing apportionment of liquidated damages, and in the absence of a precedential decision resolving the apparent conflict between these two analyses of controlling precedent on this issue, the court here will examine the facts of this case under both the rule that forbids apportionment and the rule that permits apportionment of liquidated damages. Because the result in this case happens to be the same under either rule, the court here does not need to further address the status of the rule against apportionment of liquidated damages in this circuit.
3. Proof of Equitable Adjustment Claims
a. Liability and damages are reviewed de novo
When prosecuting an equitable adjustment claim in this court, a “contractor *245 has the burden of proving the fundamental facts of liability and damages de novo.” Wilner, 24 F.3d at 1401 (citing Servidone, 931 F.2d at 861 ). Under the Changes clause of this fixed-price construction contract, 48 C.F.R. § 52.243-4 (d) (1994), the government is liable when changes to contract work increased the contractor’s costs:
If any change under this clause causes an increase or decrease in the Contractor’s cost of, or the time required for, the performance of any part of the work under this contract, whether or not changed by any [change] order, the Contracting Officer shall make an equitable adjustment and modify the contract in writing.
Id. Because the court’s determination of the government’s liability under the Changes clause is de novo under the Contracts Disputes Act, 41 U.S.C. §§ 605 (a), 609(a)(3) (2000), final liability decisions by the contracting officer are not accorded a rebuttable presumption of validity. England v. Sherman R. Smoot Corp., 388 F.3d 844, 854 (2004) (Smoot). In Smoot, the Federal Circuit also announced that it “see[s] no basis for drawing a distinction between an interim and a final decision of a contracting officer,” because “Congress made it clear in the CDA that any findings of fact by a contracting officer are not binding in any subsequent proceeding.” Id. Thus, the Federal Circuit interprets the CDA as removing any rebuttable presumption of validity for either interim or final liability decisions by the contracting officer. Id. The court will consider the contracting officer’s findings of liability as some evidence of a contemporaneous consideration of liability, but will give these interim or final decisions no deference.
b. The contractor must prove that its actual incurred costs for the changed work were reasonable
Once the contractor has proved the government’s liability for the costs of added or changed contract work, the actual costs incurred by the contractor will provide the measure of the equitable adjustment to the contract price, if those incurred costs are reasonable. Bruce Constr. Corp. v. United States, 163 Ct.Cl. 97 , 324 F.2d 516, 518-19 (Ct.Cl.1963) (Bruce Construction). Although a contractor’s incurred costs were once considered to have a presumption of reasonableness when determining the amount of an equitable adjustment, Bruce Construction, 324 F.2d at 519, this presumption has been eroded by a 1987 amendment to FAR 31.201-3, codified at 48 C.F.R. § 31.201-3 (a) (2004). This regulation states that “[n]o presumption of reasonableness shall be attached to the incurrence of costs by a contractor.” Id. The effect of the revisions to FAR 31.201-3 on the presumption of reasonableness established by Bruce Construction has been recognized by many authorities. See, e.g., Morrison Knudsen Corp. v. Fireman’s Fund Ins. Co., 175 F.3d 1221, 1244 n. 30 (10th Cir.1999) (listing cases). Some authorities go as far as to say that “[since] the revision of FAR 31.201-3 on July 30, 1987, no presumption of reasonableness is attached to the incurrence of costs by a contractor ....” Herman B. Taylor Constr. Co., GSBCA No. 12915, 96- 2 B.C.A. (CCH) 1128 , 547, 1996 WL 498543 (Aug. 27, 1996) (citation omitted); see also 6 Philip L. Bruner & Patrick J. O’Connor, Bruner & O’Connor on Construction Law § 19:50, at 186 n. 4 (2002) (stating that the presumption of reasonableness established by Bruce Construction “has been negated by” FAR 31.201-3).
This court, however, has not entirely discarded the presumption of reasonableness established by Bruce Construction. In R.P. Richards Constr. Co. v. United States, 51 Fed.Cl. 116 (2001), for example, this court asserted that “there is a presumption that [the contractor’s] actual costs paid are reasonable.” Id. at 125 (citing N. Slope Technical Ltd. v. United States, 14 Cl.Ct. 242, 264-65 (1988)). Yet, only a year earlier, this could; applied the reasonableness test of FAR 31.201-3, rather than the Bruce Construction presumption, when the FAR provision was applicable to the contract at issue. Info. Sys. & Networks Corp. v. United States, 48 Fed. Cl. 265 (2000) (Information Systems). The court in Information Systems noted that the proper test for reasonableness was found in FAR 31.201-3, because “FAR Part 31, Contract Cost Principles and Procedures, Sub-part 31.2, Contracts With Commercial Organizations, establishes a set of principles *246 and provisions for the reimbursement of costs for contractors performing the type of contract at issue in this case.” Id. at 268 . Thus, in this court, a reasonable reading of the easelaw is that no presumption of reasonableness applies if FAR 31.201-3 governs the contract at issue, but the Bruce Construction presumption of reasonableness would apply to the contractor’s incurred costs for changed or added work if FAR 31.201-3 were not applicable.
Department of Defense contracts have for some time incorporated the Contract Cost Principles by reference, including the reasonableness test of FAR 31.201-3, through the language of DFARS 252.243-7001, codified at 48 C.F.R. § 252.243-7001 (2004). John Cibinic, Jr. & Ralph C. Nash, Jr., Administration of Government Contracts 686 (3d edition 1995). It is undisputed that the contract in this case included DFARS 252.243-7001 (1994). Def.’s Mem. at 5. Therefore, FAR 31.201-3 provides the standard of reasonableness for Sollitt’s costs incurred due to added or changed contract work, and no presumption of reasonableness applies:
Determining reasonableness.
(a) A cost is reasonable if, in its nature and amount, it does not exceed that which would be incurred by a prudent person in the conduct of competitive business. Reasonableness of specific costs must be examined with particular care in connection with firms or their separate divisions that may not be subject to effective competitive restraints. No presumption of reasonableness shall be attached to the incurrence of costs by a contractor. If an initial review of the facts results in a challenge of a specific cost by the contracting officer or the contracting officer’s representative, the burden of proof shall be upon the contractor to establish that such cost is reasonable.
(b) What is reasonable depends upon a variety of considerations and circumstances, including—
(1) Whether it is the type of cost generally recognized as ordinary and necessary for the conduct of the contractor’s business or the contract performance;
(2) Generally accepted sound business practices, arm’s length bargaining, and Federal and State laws and regulations;
(3) The contractor’s responsibilities to the Government, other customers, the owners of the business, employees, and the public at large; and
(4) Any significant deviations from the contractor’s established practices.
48 C.F.R. § 31.201-3 (1994). For the purposes of determining the amount of equitable adjustment damages due Sollitt for changes to contract work, this contract provision clearly places the burden of proving the reasonableness of incurred costs on Sollitt, once those costs have been challenged by the government. Id.
c. The government bears the burden of proving the cost of deleted contract work
However, when the government has deleted work and/or costs from a fixed-price construction contract, the government, not the contractor, bears the burden of proving the amount of any downward equitable adjustment to the contract price:
[T]he Government has the burden of proving how much of a downward equitable adjustment in price should be made on account of the deletion of [certain specified materials]. Just as the contractor has that task when an upward adjustment is sought under the Changes clause, so the defendant has the laboring oar, and bears the risk of failure of proof, when a decrease is at issue.
Nager Elec. Co. v. United States, 194 Ct.Cl. 835 , 442 F.2d 936, 946 (1971). Both parties must prove their equitable adjustment claims by a preponderance of the evidence. Teledyne McCormick-Selph v. United States, 218 Ct.Cl. 513 , 588 F.2d 808, 810 (1978).
4. Government Discretion Regarding Performance Awards on Public Contracts
a. This court has jurisdiction over disputes concerning performance awards
Government contracts in the mid-1990s included language attempting to “[e]x *247 pressly exclude[ ] from the operation of the Disputes clause any disagreement by the contractor concerning the amount of the [performance] award fee,” e.g., 48 C.F.R. § 16.405 (e)(3) (1994), and thus purported to exempt government decisions regarding performance awards from the Contract Disputes Act. These clauses, insofar as they were intended to defeat jurisdiction in the Court of Federal Claims or before boards of contract appeals over disputes concerning performance awards, were voided by the Federal Circuit in Bumside-Ott Aviation Training Ctr. v. Dalton, 107 F.3d 854 (Fed.Cir.1997). The Federal Circuit voided the “jurisdiction defeating mechanism” of these clauses because “the CDA trumps a contract provision inserted by the parties that purports to divest the Board of jurisdiction” over performance award disputes. Id. at 858-59 . Thus, this court does have jurisdiction over disputes concerning performance awards, notwithstanding any contract language to the contrary. Cf. Westinghouse Hanford Co. v. United States, 47 Fed.Cl. 665, 666 , 667 n. 1 (2000) (citing Bumside-Ott and voiding a jurisdiction defeating provision concerning disputes over “incentive fee[s]”). However, the scope of this court’s review of performance award decisions is a more nuanced issue.
b. If unilateral discretion is granted to the government, performance award decisions are reviewed for arbitrary or capricious abuse of that discretion
In Bumside-Ott, the Federal Circuit reviewed a clause concerning performance awards which stated: “ ‘The Award Fee decision is a unilateral determination made by the [Fee Determining Official or FDO] and is not subject to the “DISPUTES” Clause of the contract.’” 107 F.3d at 858 (quoting the contract at issue). The Bum-side-Ott court held that the term “granting unilateral discretion to the FDO” was valid, but that the jurisdictional bar was void. Id. at 858 . The Department of Defense recognized the distinction made by the Bumside-Ott decision, and revised contracting regulations accordingly. Review of Award Fee Determinations (Burnside-Ott), 64 Fed.Reg. 72,448 (Dec. 27, 1999). The regulatory change “amend[ed] FAR 16.405-2(a) by deleting the statement that [the] award-fee determinations are not subject to the disputes clause of the contract and inserting a statement that such determinations and the methodology for determining award fee are unilateral decisions made solely at the discretion of the Government”. The current version 12 of this regulation states:
The amount of the award fee to be paid is determined by the Government’s judgmental evaluation of the contractor’s performance in terms of the criteria stated in the contract. This determination and the methodology for determining the award fee are unilateral decisions made solely at the discretion of the Government.
48 C.F.R. § 16.405-2 (a) (2004). In Burnside-Ott, the unilateral discretion afforded the government by the above-cited contract clause limited review of the award to determining whether “the discretion employed in making the decision [wa]s abused, for example, if the decision was arbitrary or capricious.” 107 F.3d at 860 .
So, if the contract language supports a finding that unilateral discretion has been granted to the government to determine the amount of a performance award, this court is limited to reviewing whether the government’s award decision was arbitrary or capricious. The Bumside-Ott holding was applied in a decision of this court concerning another type of discretionary fee awarded by the government to contractors — Value Engineering Change Proposals, or VECPs— where a contractor may receive awards for cost saving proposals. RCS Enters., Inc. v. United States, 53 Fed.Cl. 303, 309 (2002) (RCS II) (stating that this court did have jurisdiction to hear disputes over VECPs); RCS Enters., Inc. v. United States, 46 Fed. Cl. 509, 515-18 (2000) (RCS I) (discussing the *248 implications of Bumside-Ott for this court’s review of VECP refusals by the government). In ROS II, this court held that, in a dispute over the government’s refusal to pay for a VECP, “the court could review the contracting officer’s decision to determine whether it was contrary to law or an abuse of discretion.” 53 Fed.Cl. at 309. Although the merits of the discretionary decision to accept a VECP were beyond review, this court and boards of contract appeals “ ‘have power to consider whether the agency acted illegally or followed improper procedures.’ ” Id. (quoting NI Indus., Inc. v. United States, 841 F.2d 1104 , 1106 n. 1 (Fed.Cir.1988)). The scope of this court’s review of performance award determinations is similar — testing for arbitrariness and capriciousness as measured by law and the procedures set out in the contract. This was the review described in Bumside-Ott, where the Federal Circuit found no conflict between the government’s method of determining the award fee in that case and “any part of the contract,” and held that the government did not act “arbitrarily or capriciously.” 107 F.3d at 860 .
5. Applicability of Prompt Payment Act Interest
The Prompt Payment Act, 31 U.S.C. §§ 3901-3907 (2000), provides an interest penalty to businesses for “delivered item[s] of property or service [not paid for by the federal government] by the required payment date.” Id. § 3902(a). However, when a payment amount is disputed, contractors are limited to the interest offered by the Contract Disputes Act, 41 U.S.C. §§ 601-613 (2000):
Relationship to other laws
(c) Except as provided in section 3904 of this title, this chapter does not require an interest penalty on a payment that is not made because of a dispute between the head of an agency and a business concern over the amount of payment or compliance with the contract. A claim related to the dispute, and interest payable for the period during which the dispute is being resolved, is subject to the Contract Disputes Act of 1978 (41 U.S.C. [§ ]601 et seq.).
31 U.S.C. § 3907 . Thus, the interest penalty provided by the Prompt Payment Act is not available to a contractor for payments for which the government has disputed its liability. E.g., Gutz v. United States, 45 Fed.Cl. 291, 298 (1999).
DISCUSSION OF EACH COUNT
I. Count I: Delay-related extended overhead costs and liquidated damages
Before addressing the specific allegations in Count I, the court must address the overall state of the evidence which was presented in support of the delay claims in this case. Sollitt was required by the contract to deliver a baseline construction schedule to the Navy fifteen days after the award date, and to provide monthly updates to that schedule throughout the duration of the project. See SE 2017 ¶¶ 1.3, 1.5 (Contract Specification Section 01310 including CPM schedule requirements); JE 10 (FAR 52.236-15 construction schedule requirement); GE 1015 at 4 ¶6 (March 24, 1996 Pre-Construction Meeting minutes discussing the CPM schedule submission requirements); Tr. at 2405-05 (Lt. Odorizzi) (confirming that CPM schedules, both baseline and updated, were required by the contract). Phase I construction had the earlier completion date, February 7, 1996, and had one critical path of activities; Phases II and III shared the same, later completion date, May 31, 1996, and formed a second critical path of activities. Agreed Facts ¶15; Sollitt Br. at 15. Thus, there were two sets of CPM baseline schedules to be updated monthly. See Tr. at 405 (Mr. Strong) (stating that “there [we]re two separate schedules for those jobs [Building 122 and Building 2B]”). Sollitt was late in providing the two baseline CPM schedules which were due in mid-March 1995, Tr. at 405 (Mr. Strong) (estimating that the CPM baseline schedule for Phase I was submitted in June 1995 and that the CPM baseline schedule for Phases II and III was submitted in July 1995), and for some months at the beginning and end of the project Sollitt never provided monthly CPM schedule updates, Agreed Facts ¶¶ 24 — 25 (stating that *249 Phase I CPM schedule updates were provided July 1995 through March 1996, inclusive, and that Phases II and III CPM schedule updates were provided for August 1995 through June 1996, inclusive). The absence of CPM schedule updates for the start-up and completion phases of the project necessarily makes the proof of delay damages more difficult. See Tr. at 2274-76 (Mr. Tip-ton) (acknowledging that the normal analysis of delay involves a review of CPM updates at the end of the project, which permits a measurement of the actual delay experienced by the impacted activities at the end of the critical path).
Even the CPM schedule updates that are in the record are not always useful. Some of the CPM schedule updates lack specific information about the start and end dates of certain work activities on the critical path, because these activities were reported only as to their percentage of completion. Tr. at 2061-62 (Mr. Tipton). This is not standard industry practice, id., and makes the determination of amount of delay attributable to a particular event difficult, see Tr. at 1464-67 (Mr. Zielinski) (admitting that it was impossible to derive certain critical path activity dates from his CPM schedule updates). Even when specific critical path activity dates could be gleaned from the CPM schedule updates, these dates were inaccurate in several instances. Tr. at 1467 (Mr. Zielinski), 2314 (Mr. Tipton), 3162 (Mr. Dorn). These problems with the CPM schedule updates added to the difficulty of the delay damages analysis.
Sollitt’s expert, Mr. Tipton, relied upon both the baseline CPM schedule and the CPM schedule updates in his estimates of delays caused by the Navy to the critical path 13 of the project. JE 233 at 14-16, 20-21; JE 235 at 1. Sollitt asks the court to “credit” these analyses, see Sollitt Br. at 42 (stating that the court “should give credit to [the] Tipton analyses”), despite data problems the court has noted related to the missing, non-specific or inaccurate CPM schedule updates, because it alleges that the Navy “(restricted] ... Sollitt’s ability to accurately update the schedules”), Sollitt Reply at 3. Sollitt expended considerable effort at trial and in its post-trial brief 14 attempting to *250 prove this allegation, but the court remains unpersuaded that the Navy, either directly or indirectly, restricted Sollitt’s ability to report delays accurately in its monthly CPM updates.
Sollitt first attempted to prove that the Navy forbade Sollitt from reporting delays on its CPM schedule updates until time extensions for those delays had been granted. See Sollitt Reply at 3 (stating that Sollitt’s preparation of updated CPM schedules “was hampered by the Defendant’s refusal to permit Sollitt to include delaying events in the CPM schedules so as to accurately portray the status of the work”). There was no testimony recounting such a communication from the Navy to Sollitt. At most, Sollitt may have been constrained by contract requirements from adding new activities to the CPM schedule updates without authorization from the Navy. Compare Tr. at 511 (Mr. Zielinski) (“The monthly updating, which was a contractual obligation, had to deal with just the activities that we had in the original schedule. I wasn’t allowed to introduce new activities on my own.”) with Tr. at 3169 (Mr. Dorn) (“If the [delaying] work or the modification or change order was such that you did not have a preexisting activity, I would add that activity and make the appropriate relationships, hit the Calculate button and look at the [projected] end date. It either moves [extends the completion date of the project] or it doesn’t.”). But there was ample testimony showing that delays to critical path activities already on the schedule are required to be, and by industry practice are, reported on monthly CPM schedule updates. Tr. at 2070-73 (Mr. Tipton), 2750 (Lt. Odorizzi), 3163-70 (Mr. Dorn). Moreover, Sollitt’s expert admitted that it would be “unusual” for the government to forbid the entry of delays into a CPM schedule update, that he had never encountered such a direction, and that a reasonable and prudent contractor would have documented that direction if that direction had been received. Tr. at 2279-80. There was no credible evidence that the Navy forbade Sollitt from accurately updating its CPM schedules to reflect delays.
Sollitt’s remaining argument is that the Navy responded too slowly to its requests for time extensions related to delays chargeable to the Navy, and that it was this dilatory response which rendered the monthly CPM schedule updates inaccurate. See Sollitt Br. at 43 (alleging that “[t]he Navy’s failure to timely address and acknowledge requests for time extensions made it impossible to prepare accurate CPM updates”). There is a fundamental flaw in the logic of this argument. The granting of a time extension has no effect 15 on the critical path of a project, other than to extend the completion date *251 required by the contract. See Tr. at 3227 (Mr. Dorn, when asked whether time extensions affected the critical path: “No. The critical path is the critical path. It’s the longest sequence of activities from the beginning to the end.”); 3257 (Mr. Dorn, answering a question regarding the effect of time extensions on a contractor’s estimated durations for upcoming critical path activities entered into a CPM schedule update: “None [, because these estimates are the contractor’s good faith and best estimates of actual durations required by the activities].”); see also Kora and Williams, Inc., DCCAB No. D-839, 1994 WL 750301 , n. 83 and accompanying text (Mar. 7, 1994) (approving the contractor’s insertion of excusable delay events into its CPM schedule revisions even though the government refused to acknowledge them or grant time extensions). The longest path of interrelated construction activities remains unchanged by a completion date time extension; it makes no difference whether the critical path is extending toward, for example, June 1 or July 1 of the following year. It is far more important to a critical path analysis to enter delays to individual construction activities on the updated CPM schedule than to enter overall time extensions, because these individual delays may have consequences that shift the critical path from one set of activities to another. As the Claims Court noted in Fortec, “delay encountered in completion of a noncritieal item may make that item critical so that ‘every month, conceivably, the critical path would change,’ ____”8 Cl.Ct. at 505 (quoting testifying witness). When delays are entered into a CPM schedule, even without deserved time extensions, this court can analyze the effect of the delays on the critical path of the project.
Submitting monthly updated CPM schedules was a contract requirement. Sollitt may not excuse its failure to enter delaying events on the CPM schedule updates because of the Navy’s alleged failure 16 to grant timely extensions based on those delays. See supra note 14. If Sollitt’s updated CPM schedules are of limited use in meeting its burden of establishing the critical path of the project, Sollitt is now facing the consequences of its own performance of the contract requirement to provide updated CPM schedules.
Finally, Sollitt offered two delay analyses, which may be characterized as alternative analyses. Sollitt Br. at 44 (“Tipton’s alternate analyses provide the Court with reasonable bases for a determination that the Navy-caused delaying events negatively impacted the critical path and to what extent.”). The first analysis estimated delays to the critical path by inserting delaying events into Sollitt’s baseline CPM schedules. JE 233. The second analysis estimated delays to the critical path by inserting delaying events into the CPM schedule updates closest in time to those events. JE 235. Sollitt’s expert stated that he believed that the first analysis was more accurate and preferable, although he also stated that either would be rehable. Tr. at 1815-16. Sollitt asserts that the first analysis is more rehable because the “Navy ... *252 made it impossible to prepare accurate CPM updates.” Sollitt Br. at 43. The court has however, rejected the argument that the Navy prevented Sollitt from updating its CPM schedules accurately. See swpra. The court must now decide which of the two analyses, “baseline” or “updated,” is more reliable based on their methodologies and underlying data.
The better methodology for a critical path delay analysis is to use the updated CPM schedules, not the baseline schedule prepared before construction began. See Blinderman, 39 Fed.Cl. at 585 (stating that “the only way to accurately assess the effect of the delays alleged ... on the ... project’s progress is to contrast updated CPM schedules prepared immediately before and immediately after each purported delay”); Fortec, 8 Cl.Ct. at 505 (stating that “if the CPM is to be used to evaluate delay on the project, it must be kept current and must reflect delays as they occur”); Sollitt Br. at 44 (admitting that Sollitt prepared the updated analysis “in recognition of the widely accepted practice of using the updated schedules for the analys[i]s”); Tr. at 3164 (Mr. Dorn) (stating that the “real danger if you use the baseline [is] that you’re going to achieve the wrong conclusion ..., in reality the baseline doesn’t reflect the status of the project at that time and where the delay occurred”). Despite the limitations in Sollitt’s updated CPM schedules that the court has noted, there was no evidence presented that indicated that these updated CPM schedules were less accurate than the baseline CPM schedules. Mr. Zielinski, the author of these CPM schedule updates, gave credible testimony that he used these schedule updates to communicate news of Sollitt’s progress on the project to the Navy and to subcontractors, Tr. at 1522, and that he believed he was inputting accurate information, Tr. at 1479. For these reasons, the court will favor Mr. Tipton’s second analysis, JE 235, the one which estimated each critical path delay by inserting a delaying event into the CPM schedule update closest in time to the alleged delaying event, over his first analysis based on the baseline CPM schedule.
A. Phase I Construction: Allegations that three circumstances chargeable to the Navy delayed project completion and that assessed liquidated damages were not valid
Sollitt alleges that three 17 circumstances chargeable to the Navy delayed the completion of Phase I (Building 122 Areas A & B, Building 122 Area C and the Signalman Range Buildings) construction. The delays are alleged to have been caused by: (1) Navy post-award revisions to the ship’s trainer in Area C of Building 122; (2) changes to the electrical service for the chiller serving Building 122; and (3) changes and unforeseen conditions encountered when constructing the Signalman Range Buildings. Defendant argues that Sollitt has not proven that these three alleged circumstances caused the delayed completion of Phase I construction. Def.’s Br. at 17-21. As additional support for its position, defendant argues that Sollitt delayed the completion of Phase I construction primarily because of its tardy procurement of windows, a glass curtain wall and structural steel. Tr. at 29-31. For the reasons discussed below, the court finds that there were concurrent critical path delays chargeable to the Navy and to Sollitt; that these delays cannot be apportioned; and that defendant’s assessment of liquidated damages for Phase I construction was not valid.
Sollitt contests two of the several beneficial occupancy dates (BODs) that the Navy reported for various buildings or exterior work at NTC, compare Sollitt Br. at 49 with SE 2015 (supporting table of data for July 6, 1999 payment to Sollitt). The court endorses the Navy’s version of BODs as best supported by the evidence presented at trial, and finds that these dates mark substantial completion of portions of the contract work, see Tr. at 2905 (Lt.Odorizzi) (agreeing with *253 Sollitt’s counsel’s statement that a beneficial occupancy date signified “a point in time when the contractor had completed the work to the point that the portion of the facility could be used”). Here in Table 1, the court reproduces pertinent data from the Navy’s 1999 payment document, all of which appears to the court to be reasonably supported by the evidence at trial. SE 2015. The table incorporates the Navy’s final modifications to the contract completion dates (CCDs) which were originally set for the three phases of construction, so as to show all of the time extensions ultimately granted by the contracting officer. In addition, the table shows the modified basis for the Navy’s assessment of liquidated damages (LDs), a modification which, despite Sollitt’s protests that the modification was “cavalier, autocratic and capricious,” Sollitt Br. at 48, actually lessened the harshness of the original liquidated damages schedule by breaking the construction phases and the daily charge for liquidated damages into smaller subparts so that, as these sub-parts of contract construction phases were completed ahead of others, at least some of the liquidated damages contemplated by the contract for that construction phase would not be assessed. It is unnecessary for the court to determine whether this unilateral modification of the liquidated damages formula was a valid modification of the contract — it is reproduced here for the limited purpose of describing how liquidated damages were assessed against Sollitt.
Table 1: Beneficial Occupancy Dates and Liquidated Damages (LDs) Assessed by the Navy 18
Phase LD portion CCD-final BOD Days LDs $ LD $
Late per day total
I (Bldg. 122 1/3 3/29/96 3/29/96 0 $3200 $ 0 Areas A & B)_
I (Bldg. 122 1/3 4/16/96 5/14/96 28 $3200 $ 29,867 Area C)
I (So. 1/6 3/29/96 5/6/96 38 $3200 $ 20,267 Range Bldg.)_
I (No. 1/6 3/29/96 6/11/96 74 $3200 $ 39,467 Range Bldg.)_
II (Bldg. 2/3 6/24/96 7/8/96 14 $3900 $ 36,400 2B 2nd & 3rd FI.)
II (Bldg. 1/3 6/24/96 9/4/96 72 $3900 $ 93,600 2B 1st FI.)_
III (Ext. 1/1 6/18/96 9/4/96 78 $ 200 $ 15,600 work)
Total liquidated damages assessed by Navy $235,200
The court relies on this data in its review of Sollitt’s claims.
1. Post-award revisions to the ship’s trainer in Area C of Building 122
One of the most complex portions of the contract work was building a “ship’s trainer” in Area C of Building 122. JE 233 at 24. “This ship mock-up enables the Navy to train sailors on various shipboard functions!,] including life-safety, refueling at sea, line han *254 dling, docking, anchor handling, and ships systems such as lighting, the helm, etc.” JE 382 at 43. Many post-award revisions were made to the ship’s trainer, JE 233 at 24, a mock-up “made of metal studs/drywall/sheetmetal and associated equipment,” JE 382 at 44. The court presents a brief chronology of these revisions and their implementation, as established at trial:
August 19, 1995 — The Navy issued Amendment 14 which contained extensive changes to electrical service and structural steel. JE 126; JE 233 at 24; JE 382 at 47.
November 20, 1995 — Sollitt replied with CX-40, a cost proposal for the changed work in Amendment 14. SE 108.
November 20, 1995 — The Navy issued Amendment 18 which contained primarily some clarification of electrical service and the addition of some lights. JE 144; JE 382 at 47; Tr. at 3212-13 (Mr. Dorn).
January 25, 1996 — The Navy issued Amendment 19 which contained minor changes to electrical service and changes to the fire alarm system. JE 153; JE 382 at 47; Tr. at 530 (Mr. Zielinski).
March 5, 1996 — The Navy issued Modification P00029 which authorized payment for changed work in Amendments 18 and 19. JE 62.
March 14, 1996 — Sollitt sent to the Navy CX-174, a cost proposal for the changed work in Amendment 19. SE 165.
March 21, 1996 — The Navy made a minor change to a line (rope) in Amendment 18, which would now be installed by the Navy, not by Sollitt. JE 167.
March 28, 1996 — Sollitt sent to the Navy CX-128, a cost proposal for the changed work in Amendment 18. SE 180.
March 29, 1996 — The Navy issued Modification P00044 which authorized payment for the changed work in Amendment 14. JE 76.
Sollitt maintains that the revisions to the ship’s trainer delayed critical activities of Phase I construction, and that fifty-nine calendar days of delay are chargeable to the Navy for this issue. JE 235 Issue 103; Tr. at 1760-61 (Mr. Tipton).
Amendment 14 was the biggest change to the ship’s trainer, sent to Sollitt on August 29, 1995. JE 233 at 24. The other two amendments clarified the work in Amendment 14 and made additional, but less extensive, changes than those included in Amendment 14. Id. The court notes that the last substantive revision to the ship’s trainer, Amendment 19, occurred on January 25, 1996. The Navy eventually extended the contract completion date for Area C from February 7, 1996 to April 16, 1996. SE 2015. The Navy accepted the ship’s trainer and Area C for occupancy on May 14, 1996. Id. The Navy charged Sollitt liquidated damages for twenty-eight days of delay for Area C. Id. The court must examine the period from August 29, 1995 through May 14, 1996 and determine whether Sollitt’s analysis of critical path delays is supported by credible evidence of any delays chargeable to the Navy.
Certainly, an extensive revision to a complex construction item, which itself had to be further amended over the course of several months, would appear to be a likely cause for delayed contract work. This was indeed proved at trial. See Tr. at 522-31 (credible testimony by Mr. Zielinski). However, Sollitt must further prove that the revisions to the ship’s trainer caused critical path delay. Hoffman, 40 Fed.Cl. at 197-98 (stating that “when the contract utilizes CPM scheduling, the contractor must prove that the critical path of work was prolonged in order to prove a delay in project completion”).
The court notes that Sollitt stopped providing CPM schedule updates in March 1996. Thus, for the critical months of April and May 1996 there is no contemporaneous evidence of the final critical path activities for Area C. 19 The parties’ experts provided the *255 court with estimates of the critical path activities for these months, which differ greatly. See JE 233 Tab 2 at 25-26; JE 235 Issue 103; JE 382 at 48-49. But both analyses made three logical ties between the ship’s trainer revisions and related follow-on activities that might be delayed, and these the court holds are credible conclusions: (1) changes in structural steel would affect the erection of metal stud walls in the ship’s trainer; (2) changes in electrical work would affect finish work in the ship’s trainer; and (3) changes in large equipment to be delivered would affect the ability to close in the glass curtain wall opening. See JE 233 Tab 2 at 25-26; JE 235 Issue 103; JE 382 at 48-49. The testimony of Mr. Zielinski and Lt. Odorizzi supported these conclusions, although their opinions as to the delaying impact of the ship’s trainer revisions differed.
The court finds that the changes to structural steel and the electrical revisions did delay the critical path of Area C by pushing out the completion date of Area C into May 1996. See JE 235 Issue 103 (showing stud framing in February and March 1996 and finish work activities occurring in March, April and May 1996); SE 193 (Sollitt April 18, 1996 letter giving detail of when stud framing and electrical revisions were implemented). These delays were unreasonable and entirely chargeable to the Navy. Allegations of concurrent Sollitt delays cloud the issue of the close-in of the glass curtain wall of Area C and will be discussed infra. Because Mr. Tipton’s updated analysis finding critical path delays related to the ship’s trainer revisions was supported by factual evidence and was more credible than Mr. Dorn’s analysis, 20 the court finds that twenty-eight calendar days 21 of Area C critical path delay, all of the delay days for which liquidated damages were assessed against Sollitt, are chargeable to the Navy.
2. Changes to the electrical service for the chiller serving Building 122
Sollitt claims that it encountered a Type I differing site condition when, after it had installed the chiller 22 to serve Building 122, it discovered that the 600 amp electrical service its electricians had wired pursuant to the contract drawings was not sufficient to power the chiller it had installed. Sollitt argues that “the work required to change the electrical power to the chiller[ ] ... [caused] delay arising out of this set of circumstances and ... Solitt is entitled to an equitable extension of time of sixty-three calendar days to May 27, 1996 with respect to Phase I of the Project.” Sollitt Br. 1170. It is not necessary, however, to decide whether any delays associated with power problems for the chiller were chargeable to the Navy, because it is obvious to the court that substantial completion of Phase I was not delayed by the rewiring of the chiller’s electrical service.
*256 The Navy accepted all of Building 122 for occupancy before any of the rewiring of the chiller occurred. The BOD for Areas A and B of Building 122 was March 29, 1996, and for Area C of Building 122 the BOD was May 14, 1996. SE 2015. Sollitt claims that the rewiring of the chiller occurred from May 21 through May 27, 1996, Tr. at 1774 (Mr. Tip-ton), and these dates are supported by invoices from Sollitt’s electrical subcontractor, JE 235 Tab 6. Because no liquidated damages were assessed for Building 122 after the substantial completion date for this building of May 14, 1996, SE 2015, the alleged delay, occurring afterward, had no impact on the critical path of Phase I construction or on the assessment of liquidated damages for Building 122. Mr. Tipton, when confronted with this flaw in his critical path analysis, admitted that he had relied on the last CPM update in March 1996 and that there were no CPM updates for April or May 1996 to provide him with more accurate data concerning substantial completion of Building 122. Tr. at 1842-44. This may explain his inaccurate conclusion that the substantial completion of Building 122 occurred on May 27, 1996. JE 235 Issue 105.
No critical path delays for the rewiring of the chiller are chargeable to the Navy.
3. Changes and unforeseen conditions encountered when constructing the Signalman Range Buildings
Sollitt claims it experienced eighteen calendar days of critical path delay to Phase I construction due to changes and unforeseen conditions encountered when constructing the Signalman Range Buildings [Range Buildings]. 23 Sollitt Br. ¶89. Although Sollitt alleged that the Navy was responsible for several delays to the Range Buildings, including differing soil conditions and the diversion of work from the Range Buildings to the Pump House, id. at 24-27, Sollitt’s expert estimated that any critical path delays were due to revisions to the flagpoles destined to be installed in front of each of the facing buildings. See JE 233 Tab 2 at 32 (“In the final analysis, it was the flagpole that governed in the overall delay to these buildings.”); Tr. at 1786 (Mr. Tipton) (averring that “by virtue of the flag pole,” the Range Buildings were on the critical path for Phase I construction). Mr. Tipton also concluded that the flagpoles were not holding up any other construction activity except substantial completion. See Tr. at 1782 (stating that “there was no follow-on [activity delayed by the flagpoles], so the completion of the flag pole would have been substantial completion of the range buildings”).
The evidence before the court supports the following chronology concerning the flagpole revisions:
August 28,1995 — Sollitt submitted RFI 73 to the Navy, to determine the “exact location of flag poles for each booth [Range Building].” SE 65.
October 5, 1995 — The Navy responded and attached drawings of revisions to the flagpoles themselves, with detailed wind tolerances. Id.
October 25, 1995 — Sollitt secured prices for the revised flagpoles. JE 235 Issue 107.
January 19, 1996 — Sollitt submitted cost proposal CX 88, requesting $1907 for the revised flagpoles. SE 134.
March 7, 1996 — Sollitt and the Navy negotiated amounts for various CXs and the Navy circulated Modification P00033 which included $1899 for CX 88. However, negotiations failed and Modification P00033 was not signed. JE 66; SE 213 (letter from Lt. Odorizzi discussing the disagreement over time extensions that prevented Sollitt from signing P00033).
April 3,1996 — Flagpoles were delivered to NTC. JE 235 Issue 207.
April 12,1996 — Flagpoles were installed in front of the Range Buildings. Id.
April 29, 1996 — Sollitt’s flagpole supplier informed Sollitt that the flagpoles delivered to NTC could not be fixed on-site to *257 meet the Navy’s revised requirements and had to be returned and modified and that this would take at least three days. SE 201.
May 2, 1996 — The Navy informed Sollitt by letter that the flagpoles delivered to NTC and installed in front of the Range Buildings were inadequate and had to be corrected or replaced. SE 213.
May 3, 1996 — Sollitt directed its flag supplier to retrieve and fix the flagpoles.
May 6, 1996 — The Navy accepted the South Range Building for occupancy (beneficial occupancy date, or BOD). SE 2015. May 15, 1996 — Sollitt stated in a letter to the Navy that the flagpole procurement was done by Sollitt in good faith, but noted that the “wind loading[ ] criteria” specified in the October 5, 1995 RFI response constituted added work not yet incorporated into the contract. SE 231 at 1. The letter also indicated that the delivered flagpoles were “in accordance with” the original contract criteria and the approved submittals. Id. at 2. Sollitt’s letter stated that the October 5,1995 revisions were “not part of our contract responsibility.” Id. at 1.
May 20, 1996 — The Navy issued Modification P00044, a unilateral contract modification which approved $1899 for the flagpole revisions. JE 76.
June 11, 1996 — The Navy accepted the North Range Building for occupancy (beneficial occupancy date, or BOD). SE 2015.
April 11, 1997 — Sollitt submitted CX 243 for flagpole revisions, claiming $4965 “to complete extra work associated with flag pole revisions after installation of specified flag poles.” SE 359.
Mr. Tipton’s updated analysis of critical path delays related to the flagpole revisions, when tested against this chronology, makes no sense. His conclusion is that April 12, 1996, the date the flagpoles were installed, marked substantial completion of the Range Buildings. Tr. at 1782. April 12, 1996 does not correspond with the beneficial occupancy date of either the South Range Building or the North Range Building, which were accepted on May 6 and June 11, 1996, respectively. And if the flagpoles were indeed markers of substantial completion for these buildings, as Mr. Tipton urges, the rejection of the installed flagpoles in May 1996 would indicate that substantial completion of the Range Buildings must have occurred subsequent to the modification of the flagpoles, which occurred sometime after May 3, 1996, not on April 12,1996.
Another problem with Mr. Tipton’s critical path analysis for the flagpole revision is that it reports every delaying activity attributable to the Navy, such as “RFI # 73 Response [29 days]” and “Navy reviews CX 88 [39 days],” but it neglects to acknowledge a delay for “Sollitt prepares CX 88,” which would account for approximately eighty-six days of delay, from October 25, 1995 to January 19, 1996. Even if the court were to accept Mr. Tipton’s contention that the flagpoles were on the critical path for completion of the Range Buildings, his analysis does not accurately describe the delaying activities which would be chargeable to both parties. Further discussion of Mr. Tipton’s critical path analysis of construction of the Range Buildings is unwarranted, because his analysis of this issue lacks a logical foundation from which accurate estimates of critical path delays could be derived.
Sollitt has not met its burden to prove that at least some critical path delays were caused by the Navy in the construction of the Range Buildings. Therefore, no critical path delays to Phase I construction are chargeable to the Navy for this issue.
4. Procurement Delays Chargeable to Sollitt
Defendant asserts that “Sollitt’s own delays in the procurement of steel, windows, and glass curtain walls 24 significantly im *258 pacted upon Sollitt’s ability to complete the project.” Def.’s Br. at 11. There was extensive testimony on this topic, and defendant’s expert reported that these procurement delays delayed the substantial completion of Building 122. JE 382 at 57 (concluding that procurement of windows, curtain walls, and steel delayed the critical path of Building 122 construction). Mr. Dorn’s analysis estimated that although the Navy was responsible for some critical path delay for Phase I construction, the predominating delays were these procurement delays chargeable to Sollitt. See id. at 461 (table titled “Major Phases of Bldg 122 Area C” showing that various procurement delays had greater impact than a differing site condition delay). Mr. Dorn estimated that the “dry-in” of Area C of Building 122, in other words the completion of the outer shell of the building to keep out the elements, was delayed sixty-five working days, and he reported that only five of these delay days were chargeable to the Navy. Id. The court discusses each of the alleged procurement delays in turn.
There is no dispute that Sollitt was late in procuring windows for the project. Tr. at 3278 (Mr. Maziarka) (admitting that window procurement was delayed and that “we were not going to get the windows on time”). There is also no dispute that window procurement was on the critical path of the project, at least during the early months of construction. See JE 382 at 84 (Sollitt monthly report dated June 28, 1995 stating that “windows and roofing are both critical to the dry-in of Building 122”); Tr. at 2285 (Mr. Tipton) (agreeing that window procurement was on the critical path because Mr. Zielinski “had [window procurement] tied through the dry-in of the building”). But as numerous witnesses testified, Sollitt was able to work around the window procurement delay by installing temporary plastic enclosures in the window openings and heating the workspaces inside Building 122 Areas A and B. See, e.g., Tr. at 3278-79 (Mr. Maziarka) (explaining the common industry practice of using plastic on wood frames in window openings when window procurement is delayed, and that heated spaces within allow for work such as drywall to proceed). Thus, because critical activities were no longer delayed, window procurement was removed from the critical path for Phase I construction. Tr. at 2286 (Mr. Tipton). Defendant did not prove that tardy window procurement delayed the critical path of Phase I construction.
Structural steel procurement for the construction of the new addition to Building 122 known as Area C was also delayed. Compare Tr. at 1496 (Mr. Zielinski) (admitting that as of September 28, 1995 steel had not been delivered to NTC) with GE 1028 (showing August 9, 1995 to be the scheduled date for the completion of steel procurement according to the baseline CPM schedule). Defendant successfully established that delays to steel procurement were chargeable to Sollitt, and that the most likely explanation for the delay was Sollitt’s choice of a non-eertified shop as a structural steel supplier. Tr. at 132 (Mr. Maziarka) (stating that Sollitt accepted a bid from a steel supplier who promised to obtain the required certification, but who did not do so). Sollitt hired a testing consultant to certify the steel it was procuring, and it is the records of the testing consultant which document the late arrival of structural steel at NTC. JE 382 at 90-99.
The critical path for constructing Area C of Building 122 included a chain of follow-on activities that depended on the procurement of structural steel: erection of structural steel, masonry and installation of the curtain walls. JE 382 at 112-13 (updated July 1995 CPM schedule and updated July 1995 CPM schedule as corrected by Mr. Dorn); SE 569 (baseline CPM schedule). Mr. Dorn’s credible testimony established that this chain of activities remained on the critical path for Area C of Building 122, and that the tardy steel procurement caused delays along this critical path. Tr. at 3140 (using scheduling software to show that when steel procurement was accurately entered into Sollitt’s updated schedules, that “this shows ... that due to the delay in steel [procurement], the project was not going to finish [on time]”). The critical nature of steel procurement was supported by several witnesses’ testimony that the erection of the structural steel was a *259 prerequisite for masonry work, which was a prerequisite for curtain wall construction. See, e.g., Tr. at 125 (Mr. Maziarka) (“Area C of [Building] 122 was a new addition. It entailed putting up a structural steel frame, providing masonry panels. And once the masonry and the pre-cast belt course was completed, we were then able to install the curtain wall in Area C of Building 122.”); Tr. at 2191 (Mr. Tipton) (stating that “the curtain wall needed the masonry [completed] in order to finish the final procurement of [the curtain wall]”).
The critical path delays due to tardy steel procurement were not established in precise, calendar day terms, but the court finds that the steel procurement, originally scheduled to end August 9, 1995, was completed no earlier than September 28,1995. See JE 382 at 99 (showing that structural steel inspections were conducted off-site at Sollitt’s structural steel supplier on September 28, 1995); GE 1028 (showing an originally scheduled end date of August 9,1995 and an actual end date before October 15, 1995 for steel procurement); JE 382 at 461 (showing August 1, 1995 and early October 1995 dates, respectively, for scheduled and actual steel procurement dates). The court deems this delay to be chargeable to Sollitt, and finds that some or all of the twenty-eight calendar days of critical path delay for which liquidated damages were assessed to Sollitt on Area C of Building 122 were caused by the tardy steel procurement. No more precise estimate of the critical path delays for this issue is discernable from the record before the court.
The curtain wall procurement was a follow-on activity to the steel procurement. The court was not able to determine whether delays in curtain wall procurement had an independent cause other than tardy steel procurement. Defendant’s contention that additional critical path delay could be attributed to Sollitt’s tardy procurement of windows for the curtain wall appeared to have some merit, but the evidence to support this contention consisted mostly of Mr. Dorn’s hypotheses. Sollitt’s argument that the curtain wall was delayed because large equipment had to be brought in beforehand through the curtain wall opening also was not persuasive, because there was a dearth of documentary evidence or testimony from fact witnesses supporting this theory. Instead, the court finds that the curtain wall delays were largely a consequence of delays in structural steel procurement, and that the steel procurement delays account for most, if not all, of the delays experienced in installing the curtain wall.
5. Apportionment of Concurrent Critical Path Delays of the Parties
Sollitt proved that twenty-eight calendar days of delay to the substantial completion of Area C of Braiding 122 were chargeable to the Navy due to revisions to the ship’s trainer. But some or all of those twenty-eight days of critical path delays to Area C of Building 122 would also be chargeable to Sollitt for its concurrent delays in steel procurement. In addition, the delay in the substantial completion of the Range Buildings was not proved to be excusable, and therefore Sollitt would be responsible for its delay for this portion of Phase I construction, as well. These delays are intertwined and cannot be apportioned with any certainty.
For the late completion of Phase I construction, the Navy assessed liquidated damages in the amount of $29,866.67 for Area C of Building 122, $20,266.67 for the South Range Building, and $39,466.67 for the North Range Building, for a total of $89,600. 25 SE 2015. The contract’s liquidated damages provision, however, treated all of Phase I construction as one group of activities for which delays to substantial completion would trigger damages specified at a daily rate of $3200. JE 23 (Pre-Award Amendment 0002). Both the Navy’s assessment formula, SE 2015, and an alternative formula presented by Sollitt in its post-trial brief, Sollitt Br. at 49, are unilateral attempts to modify this contract term. The court, however, must try to apportion liquidated damages as these damages are defined by the contract term that was mutually agreed to by the parties. See Wise n United States, *260 249 U.S. 361, 366-67 , 39 S.Ct. 303 , 63 L.Ed. 647 (1919) (“The parties to the contract, with full understanding of the results of delay and before differences or interested views had arisen between them, were much more competent to justly determine what the amount of damage would be, an amount necessarily largely conjectural and resting in estimate, than a court or jury would be, directed to a conclusion, as either must be, after the event, by views and testimony derived from witnesses who would be unusual to a degree if them conclusions were not, in a measure, colored and partisan.”).
Apportionment of liquidated damages for Phase I construction, as specified by the contract at $3200 per day of late completion, would require the court to discern one critical path wending through all of Building 122 and the Range Buildings toward substantial completion of Phase I construction, and to apportion concurrent delays of the parties along this critical path. There was no expert opinion presented to the court which attempted to trace one critical path through Phase I construction. In addition, neither expert attempted to apportion delays attributed to each party along such a critical path. The court, despite a thorough consideration of critical path delays attributable to each party for discrete portions of Phase I construction, can do no better than these experts. The court would also be required to establish a highly speculative substantial completion date for all of Phase I construction, a date not fixed by agreement of the parties at that time or since. The court cannot even precisely compare and apportion delays to portions of Phase I construction, based on this record. Apportionment of liquidated damages based on the overall concurrent delays to all of Phase I construction, would be even more speculative, and the record does not offer the tools to accomplish this task.
Thus, even if the court were to follow the lead of Sauer and attempt to apportion liquidated damages where the government was partly at fault for critical path delays, 224 F.3d at 1347, apportionment of liquidated damages in these circumstances is impossible. When apportionment of critical path delays is not possible in a government construction project, this court cannot uphold the retention of any liquidated damages by the government. PCL, 53 Fed.Cl. at 486, 493 ; Karcher Envtl., Inc., PSBCA Nos. 4085, 4093, 4282, 00-1 B.C.A. (CCH) ¶ 30,843, 2000 WL 348318 (Mar. 13, 2000). Because the Navy contributed to critical path delays for Phase I construction, and because the critical path delays of the two parties cannot be apportioned with any certainty, the assessment of liquidated damages for Phase I construction was not valid and $89,600 must be returned to Sollitt.
B. Phase II and Phase III Construction: Allegations that seven circumstances chargeable to the Navy caused extended overhead costs and that assessed liquidated damages were not valid
Sollitt presents allegations that seven 26 circumstances chargeable to the Navy delayed the completion of Phase II (Building 2B and the Pump House) and Phase III (exterior site work) construction. These circumstances were: (1) lead paint abatement; (2) work rebuilding the interior of two stairwells; (3) foundation stabilization needed due to “black sand;” (4) addition of fill to level floors for terrazzo installation; (5) additional raised computer flooring; (6) cypher lock wiring; and (7) revisions to smoke dampers in ventilation duets. Defendant argues that Sollitt has not proven that these seven circumstances caused the delayed completion of Phase II and Phase III construction. Defendant also argues that Sollitt delayed critical path activities. Testimony at trial debated whether some of the delaying work that Sollitt claims was added post-award by the Navy was actually work that Sollitt had responsibility for under the contract as bid, see, e.g., Tr. at 2379-81 (Lt. Odorizzi) (describing *261 dampers problem as Sollitt’s responsibility), 3295 (Mr. Maziarka) (describing dampers problem as the Navy’s responsibility), sometimes referred to by the parties and the court as “bid-base contract work.” As discussed below, the court finds that although Sollitt presented credible evidence of unreasonable delay to the critical path chargeable to the Navy, Sollitt has failed to apportion the delay chargeable to the Navy and to its own conduct. Because the court cannot apportion the critical path delay in Phase II and Phase III construction, Sollitt cannot recover on its extended overhead claim in Count I.
1. Lead abatement
Early on in the project, Sollitt encountered “loose, flaking paint on some of the remaining walls in [interior] areas of [Building] 2B, and ... a good part of it was established to have levels of lead that were considered hazardous.” Tr. at 178 (Mr. Strong). Sollitt asserts that the lead abatement it was forced to perform in response to this condition was a change to the contract imposed by a Type I differing site condition. 27 Defendant asserts that either there was a patent ambiguity in the contract specifications applicable to lead abatement work and it was Sollitt’s duty to inquire regarding this ambiguity, or that the more specific contract specifications required Sollitt to perform lead abatement work because these specific terms controlled over more general terms.
The parties’ experts disagreed as to whether the lead abatement work became a critical path activity. Tr. at 1789 (Mr. Tip-ton), 3229 (Mr. Dorn). Mr. Tipton’s critical path analysis seemed more credible. Lead abatement, requiring containment of large work areas on all three floors in Building 2B, would necessarily impact the interior demolition schedule of the project, Tr. at 1789, a fact that Mr. Dorn admitted, Tr. at 3229. Mr. Dorn did not address delays related to lead abatement work in his report, finding the issue to be “too speculative.” JE 382 at 1-8. At trial, Mr. Dorn testified that Sollitt’s delay in window procurement was a concurrent and greater delay to the critical path, so the lead abatement work was “irrelevant.” Tr. at 3229. There was inadequate proof offered into evidence to support Mr. Dorn’s conclusory statement. The court finds, instead, that the weight of evidence supports Mr. Tipton’s estimate of twenty-three calendar days of critical path delay related to lead abatement work. JE 235 Issue 201. The only question is whether that delay is chargeable to the Navy.
To prove that the lead abatement was caused by a Type I differing site condition, Sollitt had to establish that the contract documents represented that this lead abatement would not be Sollitt’s responsibility, and that Sollitt acted as a reasonably prudent contractor in interpreting the contract documents. See Youngdale, 27 Fed.Cl. at 528 (requiring proof of reasonable reliance by the contractor on the contract documents and that those documents showed conditions materially different from those the contractor encountered). If there are conflicting provisions in a government contract that create an ambiguity, however, the contractor’s interpretation will only prevail if the ambiguity thus created was not a patent ambiguity. 28 NVT Techs., Inc. v. United States, 370 F.3d 1153, 1162 (Fed.Cir.2004). If the contract contains a latent ambiguity, the contractor’s interpretation may be adopted if it is reasonable and the contractor relied upon that interpretation in preparing its bid. As the Federal Circuit stated in Turner Constr. Co. v. United States, 367 F.3d 1319 (Fed.Cir. 2004):
*262 When a dispute arises as to the interpretation of a contract and the contractor’s interpretation of the contract is reasonable, we apply the rule of contra proferentem, which requires that ambiguous or unclear terms that are subject to more than one reasonable interpretation be construed against the party who drafted the document.
Id. at 1321 . The contractor must also prove that it relied on its reasonable interpretation of the contract terms. P.R. Burke, 277 F.3d at 1356 & n. 3.
The evidence presented at trial favors Sollitt’s interpretation of the contract terms concerning lead abatement. The Navy had no fact or expert witnesses who testified that Sollitt was required by the contract to abate all lead paint encountered when remodeling Building 2B. Instead, the Navy relies on the contracting officer’s final decision of December 21, 1998, which stated that the contract specifications applicable to lead abatement presented a patent ambiguity and that the contractor had not fulfilled its duty to inquire, Compl. Ex. 2 at 5. The court reviews first the relevant contract provisions, and then the factual scenario to which those provisions must be applied.
Contract specification 01560 states:
All known hazardous materials are indicated on the drawings. If additional material that is not indicated on the drawings is encountered that may be dangerous to human health upon disturbance during construction operations, stop that portion of the work and notify the Contracting Officer immediately. Intent is to identify materials such as PCB, lead paint, and friable and nonfriable asbestos.... If the material is hazardous and handling of the material is necessary to accomplish the work, the Government may issue a modification pursuant to “FAR 52.243-4, Changes” and “FAR 52.236-2, Differing Site Conditions” or perform the work with its own resources.
JE 94, Part A, § 01560 H 1.6.2. But contract specification 02090, Lead-Containing Paint Removal, to which is appended amendment 0009, Removal and Disposal of Lead-Containing Paint, states:
All painted surfaces are suspected to contain lead. Remove paint in order to completely expose the substrate. Take whatever precautions are necessary to minimize damage to the underlying substrate. [Amendment 0009] Existing materials not to remain (demolition material), when demolished without separating lead-containing paint from other materials of construction, can be disposed of as common demolition waste without regard to lead-based paint which was tested and shown to be below the regulated values for toxic wastes under RCRA.
SE 94, § 02090 113.3. Mr. Strong testified that when reading the contract documents as a whole, including the drawings and specifications, a reasonable interpretation would be that Sollitt had notice that there would be some lead-based paint encountered during demolition, that Sollitt should take precautions during removal of the partitions and interior walls, and that there would be no need for a separate construction activity for lead abatement because there were no known hazardous levels of lead in Building 2B. Tr. at 180-86. Sollitt saw no line item for lead abatement in the engineer’s cost estimates for this project, 29 see Tr. at 184-86, 308-09 (Mr. Strong) (noting that asbestos abatement was in those cost estimates but lead abatement was not); JE 92 (engineer’s cost estimates not obviously including lead abatement), and Sollitt did not include any lead abatement costs in its bid for the project, Tr. at 176 (Mr. Strong), which shows that Sollitt relied on there being no lead abatement included in the contract work.
*263 The court finds that the contract documents do not present a patent ambiguity. Mr. Strong presented credible evidence that the drawings and specifications could be read to warn of low levels of lead in painted surfaces, and the bid was prepared accordingly. Defendant presented no testimony that would show that this is an unreasonable interpretation. The unexpected presence of high levels of lead in the paint revealed the latent ambiguity in the contract specifications. Sollitt’s interpretation of those ambiguous specifications was that a modification of the contract would be appropriate if hazardous levels of lead were encountered. The only witness testifying as to the reasonableness of that interpretation had experience in the construction industry. Because that testimony was uncontroverted, the court finds that Solhtt reasonably expected a contract modification for increased costs and time related to lead abatement if hazardous lead paint was encountered.
Sollitt contacted the Navy in June 1995 and alerted Lt. Odorizzi that the peeling paint containing lead was an “unforeseen hazardous material.” SE 25. The Navy responded that Sollitt had to “abate all painted surfaces in both buildings 2B and 122.” Solhtt countered, again in June 1995, that it was both the level of lead, and the extent of the peeling paint, which constituted a changed condition and which merited an equitable adjustment for added costs and a time extension. SE 34. A lower level of lead in the peeling paint would have been susceptible to less expensive demolition techniques. Tr. at 311 (Mr. Strong). Mr. Ice, a Guernsey employee, wrote a memo in July 1995 which analyzed contract specifications and opined that “the overall intent of the Contract Documents is to provide for the safe removal of lead based paint that is either on walls to be demohshed, or on surfaces that are to receive new work which require the substrate to be free of foreign substances.” JE 120. Mr. Ice concluded that “[i]t is not readily apparent anywhere in the Contract that all lead based paint shall be removed from the structure.” Id. Mr. Ice also noted that the deterioration of the interior painted surfaces could have been aggravated due to a heating system failure subsequent to Sollitt’s walk-through inspection but prior to the commencement of construction, and that “further negotiat[ion]” should occur because the deterioration was “not clearly addressed in the Contract Documents.” Id. No compromise on this issue occurred. Notwithstanding the disagreement on the scope of contract work, Solhtt performed the lead abatement to the Navy’s satisfaction. Tr. at 183-85, 320.
Sollitt encountered a differing site condition when hazardous amounts of lead were found throughout Building 2B. Sollitt’s lead abatement work delayed the critical path of Phases II and III construction by twenty-three calendar days.
2. Work rebuilding the interior of two stairwells
Solhtt encountered deteriorated existing clay tiles on the walls in the two north stairwells of Building 2B. The Navy ordered Solhtt to remove the clay tiles and replace them with a different wall covering, and the parties agreed to a contract modification to pay Solhtt for the added work caused by this differing site condition. JE 233 Tab 2 at 37; JE 53 (Modification P00020). Mr. Tipton estimated that the added work delayed the critical path by five calendar days. JE 235 Issue 203. Mr. Tipton’s analysis of why wall rebuilding in two stairwells held up construction of Building 2B was less than persuasive:
It is evident the added work due to [clay tile in the two north stairwells] affected the completion of drywall. As there were drywall activities in the baseline schedule for stairwells specifically, I tied the delay events to activity 935, DRYWALL 3RD FL 100%. The scheme in the basehne is to work from the third floor down to the first, so that by tying the completion of the masonry to activity 935, the drywall contractor would be starting the stairwells at the same time as the third floor, thereby allowing for an efficient flow of work.
[W]hen combined with the remaining activities from delayed activity to substantial completion, they form a critical path.
JE 233 Tab 2 at 37. The court is unpersuaded that tying events together for “efficient *264 flow of work” to create “a critical path” (emphasis added), necessarily reflects an impact to the critical path of Phases II and III construction. Mr. Tipton’s testimony at trial did not reflect the logic of this issue in his written report. Rather than focus on the alleged delay to drywall work on the third floor, he stated that the clay tile removal became a critical path activity because “of the additional work and the time required to accomplish that work before the contract foundation work could be completed.” Tr. at 1795. Neither of these hypotheses appeared credible to the court. A project’s critical path is composed of interrelated activities whose sequence is imposed by logical ties of precursor and successor activities — the logic of Mr. Tipton’s alleged critical path in this instance is not apparent.
Mr. Dorn’s explanation of why the stairwell work did not become part of the critical path is more plausible. His report indicated that “stairwells are the last items to be worked ... because workers usually damage the stairwells during the course of construction by moving equipment/materials through the stairwells.” JE 382 at 52. While both experts agreed that drywall work was on the critical path for Building 2B, the evidence does not support Mr. Tipton’s logic tie which delayed all drywall work until the interior of the two north stairwells could be rebuilt. There could have been many causes for the delay to the drywall in Building 2B. For this reason, the court finds no delay to the critical path due to the rebuilding of the stairwell interior walls.
3. Foundation stabilization needed due to “black sand”
It is undisputed that Sollitt was entitled to a contract change in order to deal with the discovery of “black sand” fill behind the foundation of the south wall of Building 2B. See Tr. at 1274 (Defendant’s counsel) (“We specifically didn’t contest entitlement in our pretrial memorandum ... [t]o the black-sand issue.”). This unsuitable fill, a fine sand that ran out from underneath the building during excavation after a loading dock was removed, prevented Sollitt from proceeding with the original plan for renovations to the foundation wall and an abutting sidewalk. Sollitt submitted RFI 60 to the Navy on August 2,1995 asking for direction on how to resolve the problem. SE 50.
Sollitt’s contention is that the Navy took so much time in developing a solution for the problem that delays in completing the foundation as redesigned eventually delayed critical path activities related to Phase II construction on Building 2B and Phase III exterior site work near Building 2B such as paving and landscaping. Defendant, on the other hand, asserts that Sollitt delayed the foundation work by not submitting a timely proposal for the changed work. Defendant’s expert also testified that the critical path did not include the changed foundation work because the exterior site crew was delayed on site work at Building 122 and was not ready to work around Building 2B until after the foundation work had been completed. The court here presents the chronology of events related to this change to the contract work:
8/2/95 — Sollitt submitted RFI 60, notifying the Navy of the black sand situation, and requested direction as to how the new concrete wall could be installed without displacing the black sand material from under the existing building and undermining the foundation. SE 50.
8/24/95 — A testing laboratory visited the site and later confirmed that the existing building could be undermined if the planned concrete foundation wall was constructed according to the contract drawings. SE 60.
9/11/95 — Sollitt sent a letter to the Navy advising that it was still waiting for direction, that it would proceed with the old design as suggested by the Navy’s architect despite Sollitt having offered an alternate design, but warned that Sollitt would not be liable for foundation problems. SE 70.
9/12-15/95 — Various inspectors and engineers visited the site and recommended new designs. JE 383A at 096-101.
9/14/95 — The Navy’s architect recommended waiting for a new design rather than proceeding with the original contract drawing design. JE 132.
*265 9/18/95 — Sollitt sent a letter to the Navy acknowledging discussions the week before that had confirmed that the Navy would soon issue a new design and provide a sketch to Sollitt for foundation wall construction that would stabilize the black sand. JE 383A at 095.
All of the evidence before the court supports Sollitt’s contention that the eight-week delay from early August to late September 1995 was not Sollitt’s responsibility. There was credible testimony from Lt. Odorizzi that Sollitt was stopped from proceeding, Tr. at 2882, and that the design for the changed work was not provided for weeks, Tr. at 2529. Starting in October 1995, however, the Navy does not appear to be responsible for further delay.
9/25/95 — The Navy forwarded to Sollitt its response to RFI 60 which attached a sketch that showed a new foundation wall detail together with masonry and structural steel changes. SE 50.
9/29/95 — Sollitt sent a letter to the Navy acknowledging the receipt of the “direction” and “advised that we are proceeding with this work to prevent additional delay.” The letter also stated that “[w]e would expect to have the proposal to complete this work to the ROICC office by October 11,1995.” JE 383A at 091.
10/6/95 — Sollitt sub-contractors and vendors prepared cost estimates/proposals for work on the newly-designed foundation wall. Id. at 037-045.
10/10/95 — Lt. Odorizzi prepared a cost analysis for the newly-designed foundation wall. Id. at 073-075, 087.
10/11/95 — Lt. Odorizzi prepared a request for funding for the change to the contract. Id. at 071-072, 087.
The Navy appears to have been ready to review a proposal from Sollitt that Sollitt predicted would be ready by October 11, 1995, and to negotiate a bilateral modification to the contract so that Sollitt would have a promise of payment. There is no record of a timely proposal from Sollitt for this work however.
11/95-1/96 — Sollitt did some excavation work and formed and poured part of the newly designed concrete foundation wall. JE 235 Issue 204 Sheet 1.
11/24/95 — The Navy sent PC 27 to Sollitt with the same sketch of foundation wall detail and requested a cost proposal “at the earliest possible date but no later than 8 December 1995.” JE 145.
There is no record of Sollitt submitting a cost proposal as requested before December 8, 1995. Winter weather hit in January and no further work occurred on the foundation wall until April 1996. Sollitt Br. H125.
3/20/96 — The Navy unilaterally issued Modification P00031 adding $30,150 for changes due to differing site conditions related to the black sand, directing Sollitt to perform the work pursuant to the same sketch provided in September 1995. JE 64.
4-5/96 — Sollitt completed construction of the new foundation wall. JE 235 Issue 204 Sheet 2.
6-7/96 — Sollitt completed masonry that covered the new foundation wall, and completed the abutting sidewalk. Id.
8-9/96 — Sollitt completed Phase III exteri- or site work. Id.
9/18/96 — Sollitt submitted CX 39, a cost proposal for $123,781, for the foundation stabilization and redesigned foundation wall. SE 297.
4/28/99 — The Navy issued Modification P00055, which added $17,400 to the original $30,150 allotted to Sollitt for the changes due to the black sand foundation issue, bringing the total added to the contract because of this change to $47,550. JE 87 at 2.
Once the Navy had issued a sketch for revised foundation wall construction in late September, the record indicates that Sollitt neglected to respond in a timely fashion with a cost proposal. Although Sollitt’s witnesses testified that the September 25th sketch was not a complete architectural drawing with all the necessary information, Tr. at 351, 363, 399 (Mr. Strong), or an exact representation of what was eventually built, Tr. at 3306 (Mr. Maziarka), and Mr Maziarka even testified that the final resolution of the black sand issue and clear direction were not provided *266 until March 20, 1996, see Tr. at 3273 (Mr. Maziarka) (“We did not receive final authorization and in essence the final solution to the black sand problem until we received P00031, which was March 20.” (emphasis added)), there is no documentary evidence that the sketch was insufficient direction for Sollitt. The estimates obtained from sub-contractors and vendors on October 6th are evidence that the work proposed was understood by Sollitt. Credible testimony from Mr. Strong established that Sollitt was able to work out details that were not shown in the sketch. Tr. at 351. Sollitt began work on the newly designed foundation wall, which was substantially different from the old design, on November 6th, Tr. at 1797 (Mr. Tipton), and continued substantial construction work on the foundation wall into January. It appears to the court that the delay from September 25th to November 6th was primarily Sollitt’s responsibility.
Once the Navy gave clear direction on September 25th, Sollitt should have proceeded with the work as it promised in its September 29th letter and should have negotiated the price for this work with the Navy. The only hard evidence of Sollitt moving forward with either of these tasks is the October 6th bids from Sollitt’s subcontractors. Sollitt has offered no credible evidence explaining why Sollitt did not get a cost proposal to the Navy by October 11, 1995. Nor has Sollitt shown why it started work on the newly-designed foundation wall on November 6th rather than earlier.
Sollitt attempted to explain this delay by suggesting that further refinements to the work proposed in the September 25th sketch consumed time and prevented progress. Tr. at 3306 (Mr. Maziarka). There was credible testimony that the final construction of the foundation wall does not exactly match the sketch offered on September 25th to Sollitt. Tr. at 2979 (Lt. Odorizzi). But not one document was presented to the court that suggested that the Navy further delayed the construction of the newly-designed foundation wall once the sketch was presented to Sollitt. And Sollitt’s principal witness on this issue, Mr. Strong, testified that the September 25th sketch represented “a [typical] cross-section of what [the Navy] want[ed] as a final solution” and indicated that Sollitt was “able to do [the remainder of the design for entryways and ends of the building].” Tr. at 351. The preponderance of the evidence shows that the Navy did not further delay Sollitt’s work on the black sand issue after September 25,1995.
The reasons for Sollitt’s failure to respond with a detailed cost proposal to the sketch offered by the Navy are unclear. If Sollitt had provided a cost proposal in a timely fashion, the court could have used that evidence to better understand the progress, or non-progress, of the construction of the newly-designed foundation wall. In the absence of evidence of Sollitt’s proposed work and proposed costs as envisioned in October 1995, and lacking any contemporaneous documentation of negotiations between the parties at that time, it is impossible for the court to assign responsibility to the parties for the delays encountered in attempting to complete the foundation work on Building 2B before winter weather arrived. Similarly, it is impossible for the court to determine whether the Navy-caused delay in August and September prevented Sollitt from completing the foundation construction before winter, or whether the winter delay was avoidable if only Sollitt had begun construction on the newly-designed foundation wall in October rather than November 1995.
Because of these uncertainties, the court disagrees with Sollitt’s contention that “Sollitt’s analysis of the delay impact resulting from the N[avy] directed installation of the foundation] wall at Building 2B based on the updated CPM schedules is a reasonable basis for determining the delay arising out of this set of [black sand] circumstances.” Sollitt Br. K131. Rather, delays were caused both by the Navy and by Sollitt and the amount of delay attributable to each party remains uncertain. It does appear that these concurrent delays pushed the foundation stabilization problem onto the critical path for Phase II and Phase III construction, JE 235 Issue 204, despite defendant’s expert’s disagreement with this conclusion, Tr. at 3234-35 (Mr. Dorn). The evidence provided to the court was not sufficient to apportion these *267 delays between the Navy and Sollitt, however, and therefore the court cannot award Sollitt an equitable extension of time for this issue.
Nonetheless, the Navy’s unreasonable delay in designing a changed south foundation wall for Building 2B to respond to a differing site condition does affect the Navy’s right to assess liquidated damages for the delayed completion of Phases II and III construction. See infra.
4. Need for fill to level floors for terrazzo installation
Sollitt contracted to put a terrazzo 30 floor in the corridors of all three floors of Building 2B. Tr. at 571 (Mr. Zielinski). The subfloors were discovered to be not level within the tolerance required for this type of installation. Tr. at 573 (Mr. Zielinski). Sollitt alerted the Navy and was directed to survey the subfloors and to estimate the amount of fill needed to bring the subfloors within tolerance. Id. Sollitt was paid for the addition of fill to the corridor subfloors proposed in its cost estimates, once revisions were made after the work was completed. Tr. at 580 (Mr. Zielinski). There was no evidence that Sollitt was not entitled to this payment for work added to the contract. The dispute here is whether Sollitt is entitled to a time extension justified by delays to the critical path caused by the need to add fill to the corridor subfloors, and if so, how much of a delay is justified.
Mr. Tipton estimated that adding fill to the corridor subfloors produced fifty calendar days of delay to the critical path of Phases II and III construction. JE 235 Issue 205. Mr. Dorn conceded that adding fill to the corridor subfloors did impact the critical path, but he estimated only five work days of delay to the critical path. 31 Tr. at 3240. The court will review first the expert estimates, and then consider other evidence in the record.
Mr. Tipton inserted the delaying event of adding fill to the corridor subfloors into the March 1996 CPM schedule update. JE 235 at 2. He appears to have added three types of activities related to this work, “survey,” “quantify” and “fill,” which began in late February 1996. Id. Issue 205. The work proceeded from top to bottom of the building, with the last of these activities ending in late May 1996. Id. For just the “fill” activities, Mr. Tipton estimated ten days for the third floor, twenty-one days for the second floor, and ten days for the first floor. Id.
According to Mr. Tipton, the terrazzo work began, again proceeding from top to bottom of the building, in mid-March 1996. Id. From that point, Mr. Tipton’s analysis shows that there was at least some concurrency between the adding of fill activities on the lower floors and the

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6653511. Public record. Not legal advice.