# Fireman's Fund Insurance v. United States

> United States Court of Federal Claims · May 26, 2010 · 92 Fed. Cl. 598

URL: https://www.frixlaw.com/law-library/cases/6660186

## Case

- **Full name:** FIREMAN'S FUND INSURANCE COMPANY, American Home Assurance Company, Fidelity and Deposit Company of Maryland, and Universal Underwriters Insurance Company v. United States
- **Court:** United States Court of Federal Claims
- **Decided:** May 26, 2010
- **Citations:** 92 Fed. Cl. 598; 2010 U.S. Claims LEXIS 269; 2010 WL 2197532
- **Precedential status:** Published
- **Opinion:** Opinion of the court by Miller
- **Judges:** Miller
- **Cited by:** 22 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/6660186

## How later opinions describe it (automated extraction)

- holding that the government breaches the duty not to hinder and the duty to cooperate when it “acts unreasonably under the circumstances, viz., if it unreasonably delays the contractor or unreasonably fails to cooperate”
- holding that the contracting officer’s failure to comply with the FAR rendered her decision invalid

## Opinion text

MEMORANDUM OPINION AND ORDER
MILLER, Judge.
This case is before the court after multiple orders, opinions, and trial. Plaintiffs are sureties that completed performance of a contract upon the bankruptcy of J.A. Jones Construction Company (“J.A Jones”), a joint venturer with Guy F. Atkinson Construction Company (“Atkinson” and, together with J.A. Jones, the “Joint Venture”), in the construction of the Montgomery Point Lock and Dam Project (“Montgomery Point” or the “Project”) on the White River in eastern Arkansas. Plaintiffs allege that the U.S. Corps of Engineers (the “Corps”) is liable due to the subject contract’s flawed design specifications for concrete and a labor shortage impacting work on Montgomery Point, i.e., causing the Joint Venture to pay higher wages for skilled craftsmen by commandeering the relevant labor market through the Corps’s settlement of a dispute with another contractor for the Corps on a contemporaneous construction project in Pine Bluff, Arkansas. Consolidated with the instant matter are four additional claims (the “Board claims”) — including three claims formerly before the Armed Services Board of Contract Appeals (the “ASBCA”) and a related subcontractor claim — stemming from the Corps’s allegedly deficient design specifications and Project mismanagement. Defendant counterclaims that an unauthorized waiver by the Corps shortened the period of contract performance and entitles the Government to a reduction in the contract price.
BACKGROUND AND FACTS 1
1. Project description
The belabored execution of Montgomery Point belies the Project’s successful completion and reflects its complexity — it is a structure with, as defense counsel suggests, “many nooks and crannies.” Transcript of Proceedings, Fireman’s Fund Ins. Co., et al. v. United States, Nos. 04-1692C, 08-782C, - 783C & -784C, at 68 (Fed.Cl. Nov. 2-20, 2009) (“Tr.”). Montgomery Point ensures the navigability of the White River in Arkansas notwithstanding low water levels. When the White River’s water level is not low and its navigability is unaffected, traffic proceeds through Montgomery Point’s 300-foot-wide navigable pass over submerged, hinged, and hydraulically operated steel crest gates. The *603 submerged crest gates extend across the river’s width, perpendicularly stemming from one wall of Montgomery Point’s navigation lock. The lock’s two walls form a 110-foot-wide and 600-fooL-long lock chamber sitting parallel to the shoreline. Standing on the wall opposite the crest gates is the concrete control tower, from which extends a 200-foot-wide concrete spillway that allows overflow when water levels are excessively high. An abutment connects the spillway to the shoreline.
The control tower houses Montgomery Point’s various mechanical, electrical, and hydraulic controls. From the control tower, an operator monitors river conditions and regulates river traffic passing Montgomery Point. When a low water level disrupts the navigability of the White River, the operator raises the submerged crest gates to create a temporary dam, thereby blocking the navigable pass and elevating the water level upstream of Montgomery Point. A concrete 524-foot floating guide wall extending from the lock receives river traffic queuing upstream and guides it to the lock chamber (the “upstream floating guidewall”). To facilitate passing traffic, four hydraulically operated tainter valves adjust the water level in the lock chamber, while steel miter gates, functioning as the doors to the lock chamber, open and close. On the downstream end of the lock, a twin floating guide wall directs departing traffic (the “downstream floating guidewall”). Montgomery Point similarly allows traffic to progress in the opposite direction through the lock chamber. Additionally, a Crest Gate Dewatering System (the “CGDS”) permits the maintenance of the hydraulic crest gates by dewatering Montgomery Point.
2. Background and submission of proposals
On April 7, 1997, the Corps solicited proposals for the construction of Montgomery Point. The court heard testimony from three of the individuals responsible for preparing the Joint Venture’s bid: Norman D. Wagner, the chief estimator for J.A. Jones’s Heavy Civil Group; Douglas G. Sickle, a J.A. Jones employee and the Joint Venture’s Project Manager; and Calvin Gregory (“Greg”) Herrick, a J.A Jones employee and the Joint Venture’s Senior Project Engineer and Project Controls Engineer. See Tr. at 1388 (Wagner); see also Tr. at 179-80 (Herrick) (listing, as involved in Joint Venture’s bid preparation, “Dennis Olson, Doug Sickle, Norm Wagner, Rick Scharff, Joe Smith, myself, and representatives from Atkinson”). Mr. Herrick proved to be plaintiffs’ most generally knowledgeable witness about Montgomery Point’s history and development insofar as he participated in or observed the events that he described.
J.A. Jones hired Mr. Wagner as the chief estimator of its Heavy Civil Group in 1991. Before he left J.A. Jones in 2002, Mr. Wagner had assisted or prepared bids for a variety of projects, including Gray’s Landing Dam, Florida’s Gareon Bridge, Arizona’s Bartlett Dam, Olmsted Lock and Dam, Braddock Lock and Dam, Oliver Lock and Dam, the Arkansas Hydro hydroelectric plant (“Ark Hydro”), and Montgomery Point. Following his departure from J.A. Jones, Mr. Wagner remained a chief estimator for subsequent employers and since has been responsible for bidding projects, including one for the Marmet Lock and Dam. The court found Mr. Wagner to display an impressive recollection and command of the bid process undertaken by the Joint Venture.
Mr. Wagner described the process for bidding on Montgomery Point, as follows:
The first thing we did was get the documents. We had to order them from the [Cjorps. Get the documents, distribute them to the people in our bid team.
Make bid assignments to the individuals. Prepare the joint venture documents, which would have included quantity reconciliation forms, plug pricing for materials, subcontracts, first pass at labor rates.
I believe we each [J.A Jones and Atkinson] did our own equipment rates on that job. Then set up schedules of reviews. That sort of thing. What times things were needed. Set up joint venture meetings. All with consideration of what management time was and that.
Tr. at 1389. “Plug pricing” was necessary because the subcontractors’ actual pricing information often was not available when they *604 bid; therefore, the Joint Venture used pricing records obtained from previous projects or from subcontractor estimates and later conformed a given submission with the actual quotes. Quantity and cost reconciliations allowed J.A. Jones and Atkinson to coordinate their respective estimates for Montgomery Point’s requirements. Immediately prior to submitting its proposal, the Joint Venture substantiated the amount of its bid with actual pricing data from its subcontractors, which yielded a “conformed” bid. See Tr. at 1393-94 (Wagner) (“We use the term conformed saying that [the bid] was de-plugged to actual material and subcontractor pricing. Any final adjustment at bid time.”).
Mr. Wagner explained how the Joint Venture conformed its bid estimate. See Tr. at 1393; see also JX 2061 (Joint Venture’s conformed bid estimate). The estimate matched the bid items proposed by the Corps’s bid sheets. Within the conformed bid estimate were multiple bid items, below which were grouped several work activities “whereby work is actually estimated and the productiv-ities are stated, [an] approved site is stated, and the contractor stated [what] was used for bidding. It developed a cost for each bid item.” Tr. at 1394-95 (Wagner). For example, for the large amount of concrete work expected for Montgomery Point, a holding account contained the aggregate estimate for concrete, from which the concrete work then was distributed among the individual concrete activities based on required quantities. Each bid item included a bottom-line total cost, including costs by “labor, burden, permanent materials, construction materials, equipment rent, subcontracting, total, and then ... the unit costs,” Tr. at 1397 (Wagner), as well as indirect costs, including “those costs that are spread throughout the job, such as the project management, the project supervision, the project engineering, the offices, moving equipment in unless it’s specific equipment, [and] some of the insurances,” Tr. at 1398 (Wagner). Travel costs and other “project wide expenses” that explicitly were not furnished by the Corps were also included. Tr. at 1398 (Wagner).
Mr. Wagner discussed how the Joint Venture estimated labor rates, also first using plug-pricing, according to both its best judgment and reference to other completed or ongoing projects. Plug-pricing estimates were later subject to cost reconciliation and a final “consensus level opinion” of the Joint Venture’s partners. Tr. at 1400 (Wagner). For each activity listed on the conformed bid estimate, Mr. Wagner also estimated the start date and duration of the work until completion. These initial activity start dates and durations were not immutable, however, as Mr. Wagner first entered these dates solely to establish a cash flow for the Joint Venture. According to Mr. Wagner, when these dates failed to produce a good cash flow, the Joint Venture should have had them updated or deleted from the estimate. See Tr. at 1441.
Mr. Sickle began working for J.A. Jones in 1987. Tr. at 1196 (Sickle). Prior to Montgomery Point, he worked as a general superintendent and project manager for work at the Kings Bay Naval Base, as a project manager for Arizona’s Roosevelt Dam, and as an estimator for the Homestead Lock and the Roosevelt Dam. Mr. Sickle’s recollection of the Project’s history was weak.
Mr. Sickle became Montgomery Point’s project manager, and at bid time he estimated Montgomery Point’s tasks, including concrete work, according to the following process:
It would start with a thorough review of the contract documents, all the specifications and drawings. You have to be familiar with the scope of the project and would get into a detailed takeoff of the concrete work starting with each individual list of every monolith and would take off the amount of form work, the amount of concrete, the amount of finishing, water stop, blockouts, everything related to those operations.
Once those takeoffs were completed[,] then I would start to develop activities, estimate activities to estimate the man hours [productivity rates] for each one of the different operations. Those man hours were based on historical data from other lock and dam projects and other similar *605 projects where we used the same type of form work and systems.
Tr. at 1198.
Mr. Sickle explained that productivity rates were calculated by extrapolating from job histories the estimated amount of man-hours per unit of measure, such as the “man hours for unit of square foot of forms, cubic yard of concrete, lineal foot of water stop, et cetera....” Tr. at 1200; see also Tr. at 1301-02 (stating that it is “generally correct” that “[he] went through and [he] didn’t try to figure out how many total men were going to be on the site on a given day[;] instead [he] looked activity by activity and figured out how many man hours [sic] to do that”). Thus, by using actual historical data, the Joint Venture’s productivity rates accounted for equipment breakdowns, delays, and other construction problems, as well as the learning curve for concrete work. Productivity rates were used to calculate the number of craftsmen required for different construction activities, respectively. See Tr. at 1273 (regarding carpenters, testifying that “[w]e would have looked at the total man hours and estimated the duration and looked at what we thought our peak would be”). Mr. Sickle did not recall making any calculations during the bid process in order to determine the peak number of craftsmen that would be required during concrete work, but he stated that it was J.A. Jones’s normal practice to “look[ ] at the number of man hours generated over the schedule and where [the Joint Venture] thought the man hour requirements would be.” Tr. at 1283; see also Tr. at 1296 (“Just about every estimator goes in their head about how many hours are generated and over what period of work they’re going and he tries to determine about how many carpenters or how many laborers they might think is [sic] going to be needed for this thing.”).
Mr. Sickle also recalled the concerns that he had during the bid period regarding the availability of labor for concrete work. 2 The estimators discussed Montgomery Point’s remote location and its access routes; they understood that the access road leading to Montgomery Point was frequently flooded and weight-restricted. Consequently, they included within their estimate one half-hour of travel time for labor drawn from Mississippi and Arkansas and planned for crews to be transported by boat to Montgomery Point daily from Mississippi and as-needed from Arkansas. The estimators assumed that the Joint Venture would siphon concrete labor from Ark Hydro’s complement of craftsmen, e.g., laborers, carpenters, and ironworkers, as well as from other locales in Arkansas, from Mississippi, and from traveling craftsmen. See Tr. at 1202 (Sickle). Despite Montgomery Point’s remoteness, the long (at least four-year) duration of the Project would attract traveling craftsmen. Consequently, in preparing the concrete estimate, Mr. Sickle relied on J.A. Jones’s historical records, including the rates that it was paying at Ark Hydro, wage studies for Mississippi labor, and the Government’s prevailing wage rates. See Tr. at 1204-06.
Mr. Herrick testified as to the Joint Venture’s pre-bid plans to recruit labor for Montgomery Point. He discussed the Joint Venture’s operations at Montgomery Point relative to J.A. Jones’s concurrent construction of Ark Hydro, which was located twenty miles away from Montgomery Point. He could not recall any conversations during bid preparation concerning whether a union labor agreement could be obtained for Mont *606 gomery Point similar to that which was in place at Ark Hydro. 3 See Tr. at 365. He believed that the Ark Hydro workers were experienced in concrete form work typical of that which would occur at Montgomery Point and that these workers would transfer from Ark Hydro to Montgomery Point. Still, when Montgomery Point’s labor was compared at bid time to that at Ark Hydro, the bid’s estimated labor rates “were adjusted downward slightly because it was felt that the Montgomery Point work was less complex and the labor pool would be enhanced from the Mississippi side.” JX 157 at FF395451-52.
As was testified by both Messrs. Sickle and Herrick, the Joint Venture expected to draw labor from Ark Hydro’s laborers, carpenters, and ironworkers; from elsewhere in Arkansas and Mississippi, as well from Louisiana and Florida; and from “travelers” who followed heavy civil construction projects. Advertisements in newspapers and construction-related periodicals would be used. See Tr. at 366 (Herrick); see also Tr. at 1227 (Sickle) (stating that J.A. Jones’s Charlotte, NC home office would advertise in major publications and regional newspapers). Mr. Herrick recalled that Montgomery Point required approximately 300 employees during the peak of concrete placement, of whom approximately 120 would be form carpenters, 100 would be laborers, and forty-to-fifty would be ironworkers. Tr. at 328-31.
Ark Hydro had a union labor agreement. Although the unions could not supply sufficient labor at Ark Hydro, they confounded J.A Jones by objecting to any attempts to hire non-union labor. Thus, assuming that the unions would not be able to supply sufficient labor at Montgomery Point (insofar as the Project was similarly and remotely located), the Joint Venture postponed its attempts to sign a union labor agreement. See Tr. at 1208-10, 1315 (Sickle). Mr. Sickle could not recall if an inquiry was made regarding where union labor was concentrated in Arkansas. See Tr. at 1309. He noted, however, that unions were not strong in the area of Montgomery Point and that “[J.A. Jones’s] projects are in relatively remote areas where frequently [J.A. Jones] runs into weaker unions where they are unable to supply [J.A. Jones’s] labor force.” Tr. at 1315. Pre-bid, the Joint Venture had obtained correspondence regarding wage rates for trade labor. See DX 12 (fax titled “Lock and dam labor rate survey,” dated June 5, 1997, and sent to a J.A. Jones executive); see also Tr. at 1286 (Sickle) (discussing DX 12); Tr. at 1447 (Wagner) (same). Still, J.A Jones did not meet with the trade unions until after the bid process concluded. These subsequent meetings did not produce a labor agreement. 4
Defense counsel elicited testimony from both Messrs. Wagner and Sickle to show that any earlier projects provided an imperfect model upon which to base the Montgomery Point bid estimates. Mr. Wagner acknowledged differences in the metal rebar of Oliver Lock and Dam — a project referenced by Mr. Wagner when he prepared Montgomery Point’s bid — vis-a-vis that of Montgomery Point. Oliver Lock and Dam required a light amount of rebar, but Montgomery Point’s was heavier and more congested, particularly in areas in which larger (three-inch) concrete aggregates would be placed. See Tr. at 1449. Still, Mr. Wagner “could relate to [Oliver Lock and Dam],” as he found “it was somewhat similar work.” Tr. at 1449. Testifying about his knowledge of Roosevelt Dam, Mr. Sickle could not recall the exact amount or size of concrete aggregates used in locations with rebar reinforcement. Moreover, Roosevelt Dam utilized forms for the placement of concrete which were appropriate for ten-foot lifts and for which there were *607 sketchings to guide construction by the carpenters; for Montgomery Point, ten-foot, seven-foot, and five-foot lifts were used, and sketches comparable to those at Roosevelt Dam were not provided.
Mr. Herrick was attached to the J.A. Jones Project Controls Department when, in April 1997, he worked on J.A. Jones’s bid estimate. He estimated the miscellaneous metals (well armor, handrails, stair rungs, ladders, set posts, wall armor, corner protection, and other embedded metals) and paint. Mr. Herrick assumed that the metal work associated with the crest gates would be the most complex aspect of Montgomery Point. Mr. Herrick also prepared the preliminary bid schedule, a two-page summary chart of activities. See Tr. at 194 (Herrick); see also Tr. at 1440 (Wagner). For the bid schedule, Mr. Herrick relied upon the initial activity start dates and durations that were prepared by Mr. Wagner for the Joint Venture’s conformed bid estimate. Tr. at 443, 455 (Herrick) (discussing JX 2061). 5 Perhaps because its source material — Mr. Wagner’s scheduling data — was tailored for the limited purpose of generating cash flow, as discussed above, Mr. Herrick’s bid schedule offered little detail. See Tr. at 449 (Herrick) (“[T]here were durations for all the activities, but the relationships were very limited. The schedule was maybe only two pages.”).
The Corps required potential subcontractors to submit schedules, and Mr. Herrick solicited these, 6 Tr. at 369 (Herrick), although he failed to maintain all of the Joint Venture’s bid-related correspondence with its subcontractors, see Tr. at 369-70 (Herrick) (explaining that “laziness” kept him from updating subcontractor files with all communications). Mr. Herrick described a work proposal received on June 20, 1997, from Plateau Electrical Constructors (“Plateau”), the Joint Venture’s electrical subcontractor. See JX 83; Tr. at 456 (Herrick) (discussing JX 83). Plateau referenced a list of work items generated by the Corps’s solicitation and further stipulated that “[t]his proposal is based upon timely completion of a mutually agreed— upon construction schedule, with a total duration of 1687 calendar days. We will assist the development of a Network Analysis Schedule if requested.” JX 83. Mr. Herrick noted that the Joint Venture provided a schedule to Plateau when negotiating the subcontract for electrical work, but Plateau never provided a detailed schedule of its own.
Mr. Herrick described how J.A. Jones, as part of the bid process, scrutinized subcontractor bids to verify their compliance with plans and specifications. Still, J.A. Jones deferred finalizing many subcontractor arrangements until the post-bid “buy-out” process. When conducting buy-outs, Mr. Herrick secured the services of vendors that earlier had submitted the best prices for the Joint Venture’s subcontracts, e.g., to provide concrete materials; to work on electrical, mechanical, or instrumentation systems; or to conduct dewatering or excavation. Tr. at 942 (“We take the quotes at bid time and prepare a comparison of each of the vendors or suppliers or subcontractors, the materials they intend to supply or the scopes of work, and we try to make sure that everything is in terms of the specifications and the requirements and then try to make sure that they compare apples to apples so that we can make a valid pick as to who we’re going to use.”); see also Tr. at 944 (Herrick) (stating that buy-out priorities were “[l]ong lead and schedules”). After the contract was awarded in mid-1997, Mr. Herrick first prioritized the buy-out of the excavation subcontractor, *608 Luhr Bros., Inc. (“Luhr Bros.”) and — due to the long lead time for the hydraulic cylinders — Plateau. See Tr. at 944. He did not conduct the buy-out for concrete material until October 1998, when concrete work was scheduled to begin within approximately one year. See Tr. at 945 (discussing buy-outs and letters of intent from J.A. Jones for concrete materials).
The Corps had estimated that Montgomery Point would cost $207,252,507.00. On June 20, 1997, the Joint Venture submitted the lowest bid at $186,124,143.00. See JX 200A at FF107826 (Joint Venture Project Execution Plan); Tr. at 1407 (Wagner) (discussing JX 200A). The Joint Venture’s bid was approximately 7% ($14 million) less than the next lowest bid ($200.9 million), which was submitted by National Products (MK)/Zachary/Traylor. See JX 200A at FF107826; 7 Tr. at 1408-09 (Wagner). Mr. Wagner explained that, although the Joint Venture would have preferred that its bid more closely conform with that submitted by the next lowest bidder, the 7% difference was not a source of concern. Tr. at 1408. The highest bid, $228,442,139.00, came from Layne, another established construction company. The $40 million difference separating Layne’s bid from the Joint Venture’s bid did not alarm the Joint Venture. See Tr. at 367 (Herrick) (testifying that Layne’s bid did not make him uneasy and that he could not recall any conversations with Joint Venture estimators regarding whether the Joint Venture’s bid was too low).
3. The contract
On July 21, 1997, the Corps awarded Contract No. DACW03-97-C-0025 (the “Contract”), totaling $186,124,143.50, to the Joint Venture. See JX 89 at FF090313. The Corps’s Little Rock District administered the Contract, and Harza Engineers (“Harza”) was the Corps’s design contractor. 8 The Joint Venture would construct the coffer-dam and place concrete, 9 but also planned to use multiple subcontractors, including Luhr Bros, for excavation, revetment work, and “riprap”; 10 Plateau, for permanent electrical systems; and IHP Industrial (“IHP”), for mechanical systems, including piping and hydraulics. See Tr. at 180-81 (Herrick) (discussing these and other subcontractors at Montgomery Point). The Contract anticipated that, discounting excusable delays, the Joint Venture would complete Montgomery Point within 1,687 calendar days from the date of the notice to proceed. See JX 89 at FF090480 (Contract § 00800, ¶ 11). The Corps would assess daily liquidated damages of $6,494.00 for non-excusable delays beyond the substantial completion date. On August 26,1997, the Corps issued a notice to proceed to the Joint Venture, which, assuming a project timeline of 1,687 calendar days, set a completion date of April 9, 2002. At approximately the same time that the Corps issued the notice to proceed, Atkinson filed for bankruptcy, leaving J.A. Jones as the sole Joint Venture participant. 11
The Contract contemplated substantial concrete work for Montgomery Point’s structure. Concrete “is a combination of cementi-tious material, which could be Portland cement and/or some pozzolans such as fly ash[;] water, and the water may contain different chemical admixtures[;] sand or fine aggregate[;] and coarse aggregate or rock.” Tr. at 2266 (Dr. Ramon L. Carrasquillo, plaintiffs’ expert on the materials for mass concrete); see also Tr. at 206-07 (Herrick). A byproduct of coal-burning, fly ash is used for its *609 advantageous cementitious properties and often acts as a cement replacement — it is “somewhat cementitious, it’s a binder material, it[ ] also [has] round particles so it affects the workability of the materials.” Tr. at 207 (Herrick). The combination of cementitious material' — either cement or fly ash — and water creates “paste.” Tr. at 2266 (Carrasquil-lo). The combination of paste and a fine aggregate, i.e., natural or manufactured sand, creates “mortar.” Tr. at 2267 (Carras-quillo). Mortar acts as a lubricant when mixed with the coarse aggregate, i.e., rock, and concrete “workability” is a subjective concept that signifies the proper balance of mortar and coarse aggregate. Tr. at 2267 (Carrasquillo). 12 Workability “means that it works, ... that it has adequate consistency, cohesiveness, flowability, so that when it gets placed and it gets vibrated[,] it gets consolidated without segregating.” Tr. at 2273-74 (Carrasquillo); see also Dep. of Billy D. Nee-ley, Dec. 17, 2009, at 18 (equating workability with “placeability,” i.e., “it means that it can be placed in the forms, assuming that the ... the proper placing and consolidating techniques are being followed. Then the concrete can be placed in the forms without excessive segregation and it will respond well to a vibrator....”) (Mr. Neeley was the Corps’s authority on concrete proportioning).
Dr. Carrasquillo, an ebullient expert for plaintiffs on the mix properties of concrete and placement of materials, as well as the materials for mass concrete, described the process of proportioning the component elements of concrete mixtures:
[W]hat it means is for you to select certain materials, basically a rock, or a coarse aggregate, sand, cementitious materials, water, chemical admixtures, and what it means is for you to come up with a combination of different weights of these materials so that when you combine them all you’re going to have a mass, you’re going to have a mass of these materials, a cohesive mass of material that will be adequate, will have adequate workability for its application.
Tr. at 2268-69; see also Tr. at 219 (Herrick) (“[Proportioning is] the mix design to determine how much of each of the parts of the concrete are going to be put into the mix design.”). As proportioned batches of concrete are placed, slump tests allow field-expedient, “quick and dirty” tests to ensure that mix proportions remain consistent from batch-to-batch. See Tr. at 2274 (Carrasquil-lo) (“[If] the mix has adequate workability for that job, and then you measure the slump and the slump may be 3 inches let’s say, then during the conduct of the job you can perform the slump test and if the slump test changes that will give you ... an indication that maybe the mix proportion [has] changed.”). Dr. Carrasquillo described conducting a slump test as
nothing else but you take concrete and you make a cone, and when you pull the cone out you measure what’s left inside [and] how much it sloughs off. So I can make ... sloughs of different amounts by putting more rock, less lubricant, by putting more water on the lubricant.
Tr. at 2275-76 (“But you have to be careful when you [say] a change in the slump because the slump test is not a very very accurate test.”). 13 Different concrete mix *610 es — such as mixes with the same materials, but measured in different proportions— might have similar slumps but dissimilar workabilities. See Tr. at 2275-76 (“[Y]ou can have the same materials but you can have different proportions of the different materials and you can end up having the same slump.... So really, you know, if you tell me a slump test, a concrete has a slump [i.e., a slough] of 3 inches or 5 inches, I don’t know what workability it has.”); see also Tr. at 2270 (Carrasquillo) (“[S]lump doesn’t mean workability.”); Neeley Dep. at 60 (“Slump is not a measure of workability, but it’s the closest thing that we have, in a simple test, to give us an indication of workability.”). But cf. Tr. at 1785 (James L. (“Larry”) Winters, a Corps structural engineer) (“[S]lump is an indicator of workability.”).
When proportioning concrete, mix designers “keep in mind first of all workability,” Tr. at 2270 (Carrasquillo), but also must consider the strength, durability, heat characteristics, and economy of the concrete mix, see Tr. at 2276 (Carrasquillo); see also Tr. at 1729 (Winters) (“Mass concrete, when you proportion it you have several goals. Workability, limiting the heat of hydration, tearability, strength, cost.”). Concrete workability is paramount because “if you cannot place it, consolidate it, and finish ... it’s not going to work.” Tr. at 2270 (Carrasquillo). Workability can vary depending upon the nature of the concrete structure; it is subjective, without an accurate test. See Tr. at 2269-70 (“I can give you a concrete mix that is going to be used in a highway paving and a concrete that is going to be used in a sidewalk and a concrete mix that is going to be used in a dam and a concrete mix that is going to be used for pumping concrete.... [They] have different balance[s] between the lubricant and the lubricating materials.... ”).
After workability, “the next thing is ... to have adequate strength to be structurally sound and resist the loads that [the concrete is] going to be subjected to.” Tr. at 2270 (Carrasquillo). Strength tests follow the industry-standard “cylinder break” of the American Society for Testing of Materials (the “ASTM”) manual, by which an independent laboratory subjects a cylindrical specimen of the concrete to certain temperature ranges and pressure. See Tr. at 2271-72 (Carrasquillo). Next, concrete must be durable in order to resist damaging environmental conditions; concrete’s heat characteristics relate to durability, as well, because mix designers “must pay attention to the heat generation and the thermal gradients to make sure [the concrete] doesn’t crack.” Tr. at 2270-71 (Carrasquillo). Durability is tested when selecting and proportioning materials, before placement begins; durability tests vary based on the foreseen environmental stressors and may include freezing and thawing concrete samples, i.e., a “freeze/thaw” test. See Tr. at 2272-73 (Carrasquillo).
For the mass concrete to be placed at Montgomery Point, the Contract included the Corps’s specific requirements for furnishing, proportioning, and testing concrete materials. Mr. Winters, a structural engineer for the Corps, was Montgomery Point’s “lead structural engineer, carried [the Project] through from design and answered questions, [including] RFIs [Requests for Information] to be chopped on during construction.” Tr. at 1742 (Winters). Prior to joining the Corps in 1992, Mr. Winters never had worked on a significant construction project involving mass concrete design. See Tr. at 1703-04 (Winters). Montgomery Point was the first large concrete project — and remains the largest concrete project — on which he worked. Tr. at 1704 (Winters). He has never performed the actual mix design for mass concrete, and, other than Montgomery Point, he has never worked on a project involving manufactured sand. Tr. at 1704-05 (Winters).
As lead structural engineer of Montgomery Point, Mr. Winters coordinated the structural design among the Corps’s different designers and consultants. Tr. at 1705 (Winters). He “reviewed all the Corps criteria, and ... spoke with people who had done recent projects within the Corps.... ” Tr. at 1706 (Winters). He spoke with Corps personnel involved with the Olmsted Lock and Dam and the Red River Lock and Dam, respectively. Mr. Winters also assisted with *611 drafting the Contract’s concrete specifications: “The headquarters maintains a set of guide specifications. We use those on projects and pull the ones we need and edit them as needed.” Tr. at 1708 (Winters); see also Tr. at 1782 (Winters) (agreeing that the Corps’s guide specifications “tend to be applied in a wide variety of circumstances”).
Mr. Winters displayed a general knowledge of the Contract’s concrete specifications. He was adequate to the task of explaining them, although perhaps not to drafting the specifications; but defendant’s ease suffered from the absence of Billy D. Neeley (whom plaintiffs would have called as an adverse party witness under Fed.R.Evid. 611(c)) — a Research Civil Engineer with the Corps’s Engineering Research and Development Center, Geotechnical and Structures Laboratory — -the de facto expert to whom defendant’s other witnesses deferred as the maestro of cement proportioning. Mr. Nee-ley testified by deposition. He was ill at the time and rambled somewhat. During trial defense counsel complimented plaintiffs on conducting the deposition so as not to tax Mr. Neeley. Mr. Neeley’s testimony was not as finely calibrated as Dr. Carrasquillo’s. In the end Mr. Neeley helped to substantiate plaintiffs’ positions that the Corps took ownership of the critical proportioning of the concrete and that concrete proportioning was the ultimate cause of problems with concrete placement.
During the design phase of Montgomery Point, as he prepared the Contract’s concrete specifications, Mr. Winters reviewed a design memorandum for the Project that was published in 1994 and prepared by Mark Harris, a Corps geologist. See Tr. at 1710; JX 17 (U.S. Army Corps of Engineers, Little Rock District, Montgomery Point Lock and Dam, Design Memorandum No. 4 Construction Materials (1994) (the “DM”)). The DM announced its purpose, as follows:
This Construction Materials Feature Design Memorandum (FDM) presents the results of the construction materials investigation for the proposed Montgomery Point Lock and Dam. The investigation has dealt with the various types and quantities of materials required for the major structures and determined the acceptability of the material from various sources. The most economical use of the materials for the structures were [sic] also considered. This report has been prepared in accordance with [Engineer Manual] 1110-2-2000, Standard Practice for Concrete for Civil Work Structures [see infra].
JX 17 at 637. Mr. Winters did not treat the DM as a “criteria document,” but, rather, as an analysis and assurance of an adequate supply of concrete material for Montgomery Point. See Tr. at 1712-13 (confirming that he did not think he needed to use the DM, nor did he duplicate the DM, when drafting the Contract’s concrete specifications). Elsewhere in the DM, however, Jack Woolfork, the Acting Chief of the Corps’s Little Rock Engineering Division, recommended that the DM “be approved as the basis of the preparation of [the Contract’s] plans and specifications.” JX 17 at 628.
Engineer Manual 1110-2-2000 suggests— as does the recommendation of the Acting Chief of the Corps’s Engineering Division, discussed above — that the DM was to be a template for the Contract’s concrete specifications. See JX 10 at 317 (U.S. Army Corps of Engineers, Engineering and Design Standard Practice for Concrete Civil Works Structures, Engineer Manual 1110-2-2000 (1994) (“EM 1110-2-2000”)). Mr. Winters was familiar with EM 1110-2-2000 — referenced in the DM — and used it as a source for the Contract’s plans and specifications. Tr. at 1717. EM 1110-2-2000 also references the Corps’s instructions for drafting guide specifications for mass concrete in lock and dam projects, and Mr. Winters used these guide specifications for Montgomery Point’s Contract. Tr. at 1718-19. In discussing guide specifications for concrete, EM 1110— 2-2000 directs:
Guide specifications for concrete are used to ensure that the requirements for concrete construction for all projects will be consistent and that the concrete produced will be uniform in properties, of required quality, and economical. There are several guide specifications for concrete placed for Corps of Engineers civil works projects. These guide specifications should be used *612 in every case, with the only exceptions being for situations requiring the use of special concrete applications not covered in guide specifications. Changes should be limited to minor technical changes unless approved in the DM.
JX 10 at 317. EM 1110-2-2000 also states: “No changes should be made in the format. The completion of project specifications will be based on the approved concrete materials DM.” Id. Regarding the selection of different cementitious materials, EM 1110-2-2000 counsels:
The inclusion or exclusion of available cementing materials options in the preparation of project specifications must be based on and supported by the results of the investigation outlined in Chapter 2 of this manual. The guide specification provides that those types of Portland cement and blended hydraulic cements generally used for mass concrete and available in the project area. Consult the Materials [DM] for those cementitious material options [e.g., fly ash] which should be allowed. The use of fly ash will be permitted.
Id. at 320.
While the DM specifically discusses concrete materials to be used at Montgomery Point, Mr. Winters “did not consider [these] to be a requirement....” Tr. at 1720. Section 3, Cement and Pozzolan, 14 of the DM concludes: “Class F and class C fly ashes are readily available and the cost is not expected to vary greatly....Both ... are acceptable and will be allowed in the contract specifications. Only class F fly ash will be allowed for use in the mass concrete.” JX 17 at GP0000649. In an endorsement letter dated January 25, 1995, and added to the DM, a comment informs, as follows: “The following comment is provided for information.... Portland Cement Concrete containing class C fly ash, at a high cement replacement rate may experience flash set. See ETL [engineer technical letter] 1110-2-364 for guidance.” JX 17 at GP0000627. Mr. Winters could not recall seeing the endorsement letter, but he had seen the referenced ETL. 15 See Tr. at 1707, 1712. The engineer technical letter (the “ETL”) — which Mi*. Winters saw during the design phase, before completing the Contract specifications — warned of “problems with potential flash setting in Class C fly ash.” Tr. at 1707 (Winters).
In addition to fly ash, the DM discusses other concrete materials that were considered for use at Montgomery Point. Regarding aggregates, the DM stipulates that “[t]he fine and coarse aggregate particle shape shall be generally spherical or cubical.” 16 JX 17 at GP0000652. Mr. Winters qualified the DM’s provision on aggregate particle shape, noting that “it doesn’t list an ASTM test or anything except for the coarse aggregate. There’s no requirement[ ] in here for refined [fine] aggregate in terms of a test method.” Tr. at 1725. The DM also specifies four potential sources of fine aggregate, i.e., sand; each of these sources provided natural, not manufactured, fine aggregate. See JX 17 at GP0000655-56; Tr. at 1727-28 (Winters). Mr. Winters was not “aware of anywhere in [the DM] where a manufactured sand was analyzed by the Corps of Engineers as part of the preparation for the [DM].” Tr. at 1728. But see JX 89 at FF053275 (Contract § 03305, Spec. No. 2.1.5.6, “Commercial Concrete Aggregate Sources,” disclaiming: “No guarantee is given or implied that any of the following listed sources are currently capable of producing aggregates that meet the required quality stated in [the Contract]”).
The Contract’s concrete specifications appear to deviate from the DM. Under “Materials,” specification 2.1.1.2 provides that “[p]ozzolan [see supra note 14] other than silica fume shall conform to ASTM# C 618, *613 Class F or C, and, in addition, limits in Table 2A, Uniformity Requirements ... shall apply to all fly ash.” JX 89 at FF053271. Pursuant to a decision of Mr. Winters, with this specification the Corps permitted either Class F or Class C fly ash. 17 Tr. at 1723 (Winters); see also Tr. at 1721 (Winters) (agreeing that “there’s no prohibition in the project specifications that say[s] that you cannot use Class C fly ash in mass concrete”). But see Tr. at 1797 (Winters) (pointing out that specification 2.1.1.2 does not differentiate between mass concrete and structural concrete, that Montgomery Point has structural concrete, and that Class C fly ash is routinely used with structural concrete). Fine and coarse aggregate particle sizes, i.e., sieve sizes — including 3/4-inch, 1.5-inch, and three-inch coarse aggregates— are specified. 18 See JX 80 at FF053274-75; see also IT, at 214-17 (Herrick). Regarding particle shapes of aggregates, specification 2.1.5.4 provides parameters for coarse aggregates, but ignores fine aggregates. 19 See JX 89 at FF053275; see also Tr. at 217-218 (Herrick). Specification 2.1.5.1, covering the composition of aggregates, specifies: “Fine aggregate shall consist of natural sand, manufactured sand, or a combination of natural and manufactured sands. Coarse aggregate shall consist of gravel, crushed gravel, crushed stone, or a combination thereof.” JX 89 at FF053273; see also Tr. 1726 (Winters) (agreeing that “under the specification, a contractor is permitted to choose manufactured sand”). According to Mr. Winters, the Contract specifications made the Corps responsible for proportioning the concrete materials. Tr. at 1728; see also Tr. at 218 (Herrick) (testifying that the Corps’s contracting officer had proportioning responsibility).
As it was discussed by the Corps in the DM and during the design phase, one of the Corps’s considerations when selecting and proportioning concrete materials was to limit heat of hydration. See Tr. at 1729 (Winters). Mr. Winters explained this alchemy:
Mass concrete, when you proportion it[,] you have several goals.... The one regarding heat of hydration, if you put a hot mix into a mass concrete, the interior of the mass will retain heat, can be much warmer than the exterior, and then as that interior cools down it will cause cracking because of the differential thermal stresses between the interior and exterior.
Tr. at 1729-30. Mr. Winters indicated that the Corps typically would control heat of hydration by “limiting] it in the specifications] by using a low heat eement[,]” Tr. at 1730, but acknowledged his familiarity with more thorough thermal studies conducted by nonlinear incremental stress analysis (“NISA”), Tr. at 1730. NISA studies permit
you [to] get the properties of the particular concrete mix you’re going to use on the job. [Y]ou have to look at the thermal properties, the strength gain with time, especially the early age strength. You do a stress analysis using those properties with complex analysis. You have to consider not only the thermal properties, you have to consider the construction sequence as you build the structure.
Tr. at 1730 (Winters). When NISA tests are used, the characteristics of the final concrete structure determine the appropriate NISA testing level — either the least complex, *614 “quick and dirty” NISA level-one analysis, see JX 53A at GP0001681 (U.S. Army Corps of Engineers, Engineer Technical Letter No. 1110-2-512, Engineering and Design Thermal Studies of Mass Concrete Structures, App. A at 3 (1997) (the “1997 ETL”)), or “a full blown NISA [level-three] study,” Tr. at 1731 (Winters); see also JX 53A at GP0001682.
The Corps waived NISA studies for Montgomery Point’s concrete despite the 1997 ETL advising otherwise. See Tr. at 1736 (Winters). The 1997 ETL is not specific to Montgomery Point, but generally “provides guidance for performing thermal studies of mass concrete structures ... as required by Engineer Manual EM 1110-2-2000.” 20 JX 53A at GP0001675. Appendix A of the 1997 ETL, “Techniques for Performing Concrete Thermal Studies,” states, in relevant part:
Thermal analysis objectives. A thermal analysis is necessary and cost effective to obtain any of the following design objectives: To develop materials and structural and construction procedure requirements for use in feasibility evaluation, design[,] cost engineering, specifications, and construction of new [mass concrete structures], Thermal studies provide a rational basis for specifying construction requirements. A thermal study provides a guide for formulating advantageous design features, optimizing concrete mixture proportions, and implementing necessary construction requirements.
Id. at GP0001679-80. A level-one NISA test is the least complex. Id. at GP0001681 (“It is a simplified or ‘quick and dirty’ methodology, using little or no laboratory testing and incorporating broad assumptions for site conditions and placement constraints.”). Lock and dam structures, such as Montgomery Point, warrant a more complex level-three NISA test. Tr. at 1735 (Winters); see also JX 53A at GP0001676 (indicating that a level-one analysis is appropriate for “irrigation canals, low head flood protection structures, [and] low head [mass concrete structures] that impound water on an infrequent basis or for short durations”).
The DM’s Appendix G, “Thermal Studies,” comments that the Corps’s Little Rock District requested a waiver of the requirement to perform a NISA test for Montgomery Point. See JX 17 at GP0000823; Tr. at 1736 (Winters) (discussing DM, App. G). The September 22, 1994 waiver — initialed by Mr. Winters — describes the Corps’s reasoning:
Our evaluation of the stated objectives applied to the Montgomery Point Project indicates that a NISA study would not be worthwhile for this project for the following reasons: ... A [mass concrete structure] design must also satisfy applicable criteria contained in other documents. Cost savings from changes in structural configuration or construction sequence will not likely result from a NISA. The most economical combination of construction materials meeting the construction specifications and readily available to the contractor at the time of construction will be selected. Any construction cost savings identified from a NISA would be offset by the cost of performing the analysis and by the potential risk of implementing any cost savings recommendations which are less conservative than the original design.
JX 17 at GP0000825; see also Tr. at 1738 (Winters) (acknowledging that cost was “one of the reasons the waiver was requested”). According to the DM, the risk for concrete cracking caused by heat of hydration at Montgomery Point would be mitigated by “optimizing concrete mix design with fly ash to minimize heat,” JX 17 at GP0000825; employing weather-appropriate concreting; incorporating lessons from other Corps projects, e.g., the Red River Lock and Dam; and placing Montgomery Point’s concrete around heavily reinforced steel, id. at GP0000825-26.
Mr. Winters elaborated on the concrete tests that were required under the Contract. The Contract specifications require four slump tests for each eight-hour period of concrete placement. See JX 89 at FF053307 *615 (Contract § 03305, Spec. No. 3.8.2.6(c)); Tr. at 1788-90 (Winters) (describing the industry standard for slump tests, ASTM C143, and stating that slump tests were specified because they are “a check not only of workability, but [also] if there were some other issue[s] going on ... you would get a variability in the slump, so you’re looldng for consistency”). Additional slump tests are required “when excessive variation in workability [was] reported,” JX 89 at FF053307 (Contract § 03305, Spec. No. 3.8.2.6(c)), with adjustments to water and fine aggregate prescribed when slump results approached upper and lower limits, id. at FF053308 (Contract § 03305, Spec. No. 3.8.2.6(d)); Tr. at 1792-93 (Winters) (“Increased water, increased slump. Decreased water, decreased slump.... I think when you adjust the water you would adjust the fine aggregate as well to keep the workability consistent.”). The acceptable slump range for either 1.5-inch or three-inch aggregate mix is one to three inches. JX 89 at FF053278 (Contract § 03305, Spec. No. 2.2.6); Tr. at 1786 (Winters). Specification 2.1.5.5 prescribes moisture content for aggregates, see Tr. at 1809 (Winters); fine aggregates had to comply with a “fineness modulus” test, Tr. at 1811 (Winters); and materials were subject to freeze/thaw tests, Tr. at 1812 (Winters).
The Contract also specifies requirements for the placement of concrete at Montgomery Point. The Corps included specification 3.3.1.3, “Transportation by Belt Conveyor,” to maintain a consolidated, uniform mixture of concrete, as follows:
Such conveyors shall be designed and operated to assure a uniform flow of concrete from transfer point to final place of deposit without segregation of ingredients or loss of mortar and shall be provided with positive means for preventing segregation of the concrete at the transfer point and the point of placing.
JX 89 at FF053290-91 (Contract § 03305, Spec. No. 3.3.1.3). Specification 3.3.2.6, “Consolidation,” requires that, “[¡Immediately after placing, each layer of concrete shall be consolidated by internal vibrating equipment. Vibrators shall not be used to cause concrete to flow for significant distances within the forms.” Id. at FF053294 (Contract § 03305, Spec. No. 3.3.2.6). By specifying the proper use of vibrators, the Corps intended to prevent poor workmanship and to avoid concrete mixture segregation. See Tr. at 1785 (Winters).
In addition to its specifications regarding mass concrete for Montgomery Point, the Contract also covered the installation of various mechanical and electrical systems. Section 15005 specifies how Montgomery Point’s mechanical and electrical systems, i.e., control systems, should be tested and operated. Specification 3.5, “Trial Operation and Test,” provides:
Upon completion of site installation, and prior to acceptance of the installation, the Contractor shall subject the operating machinery of each gate/valve to such operating tests as may be required by the Contracting Officer to demonstrate satisfactory[,] functional and operating efficiency. The gates/valves shall be opened and closed several times using different modes of operation and all pressures and operating speeds verified.
The tests shall first be conducted in the dry and later again after the water is present.
JX 89 at FF052120 (Contract § 15005, Spec. No. 3.5); see also Tr. at 778 (Macon) (stating that this section applies to all crest gates, miter gates, and tainter valves). Section 15005, specification 2.2.6, “Control Systems,” details the proper operation of Montgomery Point’s control systems, as follows:
2.2.6.1 General
All hinged crest gates, miter gates, and tainter valves shall be operated by the two HPUs [hydraulic power units] as stated above. The HPU main pumps shall be started and their speeds set from the CCC [control console in the Control Tower] before the gate/valve opening or closing is initiated....
2.2.6.2 Control System for Hinged Crest Gates
The normal opei'ation of the hinged crest gates shall be from a personal computer (PC) located in the control tower. The PC shall provide for open, close and stop commands as well as status signals *616 for various gates. The commands from the PC shall be processed by the main PLC [programmable logic controller] also located in the control tower and by the local PLC located in the dam gallery....
Each hinged crest gate shall also be operable from a hard-wired local control panel (LCP) located in the cylinder alcove of the respective gate, in ease of malfunctioning of the PLC communication link. The pumps in this case shall be started from the CCC....
2.2.G.3 Control System for Miter Gates and Tainter Valves
The normal operation of the miter gates and tainter valves shall be from the CCC (hal’d wired) which shall contain all push buttons, status signals and position indicators for all gates and valves, as shown on the contract drawings.
It shall also be possible to operate the miter gates and tainter valves from portable upstream and downstream local control consoles (ULCC and DLCC) from El. 138.0, the top of the lock wall.
JX 89 at FF052113-14.
4. Commencement of construction and scheduling
In 1997 the Joint Venture began preparing buy-outs and sheet-pile operations for Montgomery Point’s cofferdam, a temporary dam-like structure that surrounded the job-site and permitted dewatering and the construction of the permanent lock and dam. The Joint Venture did not hire a personnel manager to handle craft labor recruitment. Tr. at 352 (Herrick); see also JX 200A at GP0005625 (“The addition of a Personnel/Recruiting Manager has been considered and may be implemented should he be needed.”). Instead, the Joint Venture’s project manager, office manager, safety supervisor, and superintendents successfully recruited labor for the cofferdam and the Joint Venture’s other early activities. Tr. at 254 (Herrick) (“Initially we were able to get pile driving crews as travelers to come to the site and we actually hired some locals and worked them into the crews.... So we were very successful in the beginning.”). In December 1997, however, shortly after cofferdam construction began, the Corps suspended work on Montgomery Point due to insufficient funds (the “funding shutdown”). 21 The funding shutdown lasted until April 1998; Mr. Herrick testified that the Joint Venture was back on site at Montgomery Point in June 1998 and recommenced work in August 1998.
Due to direct delays caused by the funding shutdown, the Corps generated a unilateral contract modification that extended Contract performance by 123 days. See JX 90 at Tab 25 (Contract Mod. No. P00025). The modification was unilateral because, according to the October 16, 1998 modification, the contractor declined to sign a modification without an account of additional indirect delays related to returning to the job-site and remo-bilizing. See Tr. at 1324 (Sickle). The parties soon agreed to a subsequent modification adding 106 additional days of indirect delay to constitute a “fair settlement” of the total delay (229 days). See JX 90 at Tab 39 (Contract Mod. No. P00039); Tr. at 1325 (Sickle). The Joint Venture earlier had submitted a claim for delay in the amount of $14,029,487.00, and the parties’ second modification did not operate as a waiver or release of the equitable adjustment for that prior claim, nor did it constitute an admission regarding the merits of that claim. JX 90 at Tab 39 (Contract Mod. No. P00039, at 2). In June 1999 the Joint Venture and the Corps settled the claim for $5,500,000.00 and executed a complete release of all affiliated claims. See JX 90 at Tab 41 (Contract Mod. No. P00041, at 2).
Stephen B. Macon, the Joint Venture’s general superintendent who took over as project manager during fall 2001, impressed the court as a professional. He was also a diarist. A diary excerpt dated August 10, 1999, followed the $5.5 million settlement and stated that “Doug [Sickle] reported the original claim was sort of pie in the sky, $14 million, with the actual coming in at $7,700,000. They settled with the Corps of Engineers for $5,500,000 now as opposed to fighting it out *617 for four years for the same money.’ Tr. at 1326-27.
The Corps approved a baseline schedule (“Schedule 0013”) superceding the bid schedule soon after the Joint Venture returned to Montgomery Point. The Joint Venture submitted Schedule 0013 to the Corps on June 30, 1998, and on July 13, 1998, the Corps approved it. See JX 137. The Joint Venture had begun compiling data for Schedule 0013 by no later than August 27, 1997. See JX 490 (Schedule 0013, with a data date of August 27, 1997); Tr. at 196 (Herrick) (discussing JX 490). Mr. Herrick was responsible for Schedule 0013. Previously, he irregularly had used the scheduling software for approximately five years on other projects, including Roosevelt Dam, but Montgomery Point was the first project for which he was principally responsible for using the scheduling software. See Tr. at 403. When constructing Montgomery Point, the Joint Venture updated Schedule 0013 once a month and submitted the updates to the Corps; the Joint Venture also used these monthly updates to plan its work. The Joint Venture updated Schedule 0013 by “gathering] the information from time sheets, the activity in the daily reports, and site observations of progress of the work, and then ... enter[ed] it into [Schedule 0013] to show actual dates of that work, either started or ... finished.” Tr. at 196 (Herrick). When preparing Schedule 0013, Mr. Herrick relied on the bid schedule as a primary source for estimating activity start dates and durations, but departed from the bid schedule in order to provide significantly more detail. Tr. at 194 (“[The bid schedule] was a lot more kind of summary kind of level activities ... whereas the submitted [baseline] schedule was required to be in more detail.”).
For Schedule 0013, Mr. Herrick considered the solicitation’s order-of-work provision, as well, see Tr. at 462-63 (Herrick) (discussing DX 38 (Joint Venture Submittal No. 01610.1.9, Order of Work)); still, he did not directly appropriate the solicited order of work, see Tr. at 465-66 (Herrick) (discussing changes made to the proposal for constructing the floating guidewalls). Mr. Herrick’s assumption was that the Joint Venture “would install everything in the lock and dam, all the electrical, all the mechanical, and then ... test it all, and then ... re-water.” Tr. at 468; see also Tr. at 2221 (Wayne M. Smith, project manager for the Joint Venture’s mechanical subcontractor, IHP). He knew that the Corps had included certain test requirements in its specifications. See Tr. at 467 (Herrick) (clarifying, however, that the Joint Venture had not investigated what testing would be required — “[w]e just knew we had to test it prior to start up”). In the order of work signed by Mr. Herrick and proposed by the Joint Venture, the Joint Venture had planned the following sequence of activities:
18. Construct the lock and dam. Concurrent to this, construct revetments 2.0R, 0.6R and 0.7L within the cofferdam. Construct the mooring cell. Construct the esplande[sic] area retaining walls, fill and paving. Construct the control tower including all operating system controls.
20. Construct the floating guide walls after the lock walls have been completed on the lock floor.
22. Operate, inspect and dry test structural systems. This includes, but is not limited to[J miter gates, tainter valves[,] associated hoists and operating machinery; hinged crest gate dewatering structure, ... 50' and 110' stoplogs and culvert bulkheads; ... control tower, floating guide walls and all other structures; ... Perform all punchlist and remedial work.
23. Operate, inspect and dry test mechanical systems. This includes, but is not limited to[,] hydraulic, compressed air, raw water, potable water, sewage, sump-drainage pumping, diesel generating, elevator, HVAC systems, etc. Perform all punchlist and remedial work.
24. Operate, inspect and dry test electrical systems. This includes, but is not limited to[,] those supporting the mechanical systems, power distribution, lock and dam operating machinery control and instrumentation systems; submerged systems ... and cathodic protection systems_ Perform all punch list and remedial work.
*618 25. Rewater the cofferdam. All dry operational testing and inspection will have been completed prior to rewatering.
DX 38 at ME8900225-26 (Joint Venture Sub-mittal No. 01510.1.9, Order of Work, at 3-4).
In November 1998 the Joint Venture considered Montgomery Point to be approximately 15% complete. In accordance with its standard practices, the Joint Venture performed a re-estimate in order to evaluate its progress on its buy-outs and its initial estimates (the “15% re-estimate”). See JX 157 (Summary of Joint Venture’s 15% reesti-mate); Tr. at 1231 (Sickle). Mr. Wagner led the preparation of the 15% re-estimate, working with a Joint Venture team that included Messrs. Herrick and Sickle. Tr. at 339-41 (Herrick). Mr. Sickle “worked with the estimating home office to review all [buyout] numbers.” Tr. at 1231 (Sickle). The direct cost increase proposed by the 15% re-estimate approximated $1 million. See JX 157 at FF395455; Tr. at 344-45 (Herrick). Mr. Herrick considered that this increase included higher direct labor costs attributable to construction of the cofferdam, which at that time had required pile-drivers, crane operators, and boat-associated operators. See Tr. at 345. Concrete placement had not begun and direct costs attributable thereto were not included in the 15% re-estimate, yet the Joint Venture began anticipating contingencies that could impact concrete placement. See JX 157 at FF395452; Tr. at 345-47 (Herrick). Although percipient testimony on point was lacking, the 15% reestimate forecast a $1 million contingency correlated to concrete form work and $250,000.00 for contingencies connected to iron workers and concrete, respectively. 22 See JX 157 at FF395452-53; Tr. at 346-47 (discussing JX 157).
Predicated on the Joint Venture’s evaluation of Montgomery Point’s progress, the 15% re-estimate proposed higher wages for craft labor associated with concrete placement. 23 Mr. Sickle reviewed an annotated 15% re-estimate with notes dated November 13, 1998. See JX 157 at FF395466-67. Relying on his notes, Mr. Sickle reconstructed the Joint Venture’s reevaluation of its wage rates. See id; Tr. at 1232-33, 1322 (Sickle). The annotated 15% re-estimate lists the wage rates bid by the Joint Venture for Montgomery Point’s craft labor and, in handwritten notes, the wage rates that the Joint Venture proposed within its 15% re-estimate. See JX 157 at FF395466-67; Tr. at 1235 (Sickle) (“The rate is the base rate of pay that we [the Joint Venture] were paying these people [craft labor].”). For example, for craft labor designated as “Carpenter 2,” the Joint Venture proposed an increase from $12.50/hour to $15.00/hour. See JX 157 at FF395466. Carpenter 2-category workers were skilled craftsmen constituting a significant category of carpenters for Montgomery Point-specifically, an estimated 180,845 man hours. See id; Tr. at 1323 (Sickle). At the time of the 15% re-estimate, concrete work had not commenced, and the Joint Venture was hiring few skilled carpenters. See Tr. at 1323 (Sickle). The Joint Venture used its business judgment to assess wages paid to an equivalent craft, i.e., piledrivers, and, from that data, to extrapolate the proposed wage-rate increase for carpenters. See Tr. at 1233-34 (Sickle). Later, when concrete work began and the Joint Venture hired carpenters for this effort, the Joint Venture increased the Carpenter 2 wage rate, although Mr. Sickle could not recall the exact amount of the increased wage rate. See Tr. at 1236-37 (Sickle). Similarly, for “Labor Skilled,” the Joint Venture proposed an increase from $10.00/hour to $11.00/hour. JX 157 at FF395466. For “Ironworker Reinforcing” the Joint Venture proposed an increase from $14.00/hour to $16.00/hour. Id And, for both *619 of these categories, the Joint Venture later paid increased wage rates. See Tr. at 1238 (Sickle).
On June 22, 1999, the Joint Venture prepared a revised baseline schedule (“Schedule 0014”) — again through the work of Mr. Herrick — at the request of the Corps’s resident engineers, Terry Lynn Steuart and John Bal-gaty. Within Schedule 0014, the Joint Venture accounted both for its progress and for the impact of the funding shutdown. See DX 901. In particular, Schedule 0014 reflected updated dates through the settlement of the funding shutdown. Schedule 0014 delayed the beginning of the Joint Venture’s concrete placement until May 2000 and set a new construction completion date of approximately December 3, 2002. Tr. at 420 (Herrick). Although the Joint Venture did not submit Schedule 0014 to the Corps for approval, Mr. Herrick discussed it with the Corps, and the Joint Venture subsequently used Schedule 0014 for its monthly schedule updates. See Tr. at 389 (Herrick) (“I did discuss [Schedule 0014] with the government, yes, and we agreed that it was the approved baseline schedule.”). In preparing Schedule 0014, Mr. Herrick appropriated the activity durations from Schedule 0013 unless new weather conditions changed the schedule’s logic. See Tr. at 387. He also consulted the original bid estimate or with the labor superintendents in order to plan the activity durations.
On cross-examination Mr. Herrick detailed Schedule 0014’s depiction of several activities and their respective start dates, durations, and end dates. See generally Tr. at 385-425. Each activity received an early start date and an early finish date, and these dates contemplated the Joint Venture’s plan as of June 22, 1999. Late start dates and late finish dates allowed “float time,” reflecting the latest possible start and finish that could be accomplished without impacting the project’s completion date. Tr. at 395-96 (Herrick). Extra time was not added for testing deficiencies and troubleshooting. See Tr. at 507. Particular attention on cross-examination was given to Mr. Herrick’s scheduling of the Joint Venture’s various electrical and mechanical activities, e.g., compressed air systems, miter gate and fainter valve installations, HVAC systems, diesel generators and piping, ventilation, control system equipment, operating systems, grounding and lightning protection, motor control systems, etc. See generally Tr. at 391-425. Mr. Herrick coordinated his scheduling with first-tier subcontractors like IHP and Plateau. For example, Mr. Herrick had estimated that installing a hydraulic power pack — the “driver of the crest gate operating systemf,] the miter gate operating system, and the fainter valve operating system,” Tr. at 393 — required twenty days, and this estimate was subject to revision by IHP, see Tr. at 394. Mr. Herrick affirmed that Schedule 0014 required the Joint Venture “to complete the installation of all electrical and mechanical systems and test them before rewatering.” Tr. at 1146.
Concurrent with Schedule 0014, the Joint Venture also completed a project execution plan. See JX 200A Despite being concurrently prepared, Schedule 0014 and the project execution plan are unrelated, and the project execution plan incorporated the original baseline schedule. See Tr. at 248-49 (Herrick). Mr. Herrick began preparing the project execution plan by no later than February 1999 and finished it in May 1999. See Tr. at 351 (Herrick). Mr. Herrick described the project execution plan:
It’s a corporate mandated project execution plan. It’s kind of an orientation document for any and all personnel on the job[,] as it covers everything in the job from how we plan to do our work to site utilization, schedule, personnel, cash flow, space quality, owner relations work plan, procurement, equipment, subcontract management, cost, document control, pi’oject closeouts and labor relations.
Tr. at 248; see also JX 200A. Mr. Herrick generated the project execution plan for consideration by J.A. Jones’s headquarters in Charlotte, NC; it was not provided to the Corps. Tr. at 250.
Mr. Herrick conscripted a boilerplate pamphlet from the Construction Industry Institute (the “CII”), then generated various subsections of the project execution plan in compliance therewith. See Tr. at 357. Mr. Herrick addressed some of the project exe- *620 eution plan’s components. For example, the site-utilization section discusses employee transportation, equipment locations, environmental controls, microwave communications, and various logistical matters. See Tr. at 249-50; JX 200A at GP0005248. Mr. Herrick also considered the Joint Venture’s plans for recruiting labor. JX 200A at GP0005205. In compliance with the CII pamphlet, Mr. Herrick advised J.A. Jones’s senior management to evaluate whether, in the absence of union labor, sufficient manpower would be available at Montgomery Point. See id.; Tr. at 362-363 (acknowledging that the CII pamphlet does not counsel a similar inquiry when union labor is available). The project execution plan includes manpower schedules, as well, see JX 200A at GP0005331, which graphically depict “man days versus month for different crafts of the job,” Tr. at 250.
The manpower schedules predate the project execution plan. They were created for the Joint Venture’s unsuccessful negotiations in July 1997 with union representatives. Tr. at 250-51 (Herrick); see also Tr. at 356 (Herrick) (stating, “Senior managers had already seen the documents. [I] was just putting the labor graphs into the document.”). But see Tr. at 358 (Herrick) (stating that he understood the purpose of the manpower schedules to be “[p]rovid[ing] a schedule showing the manpower requirements for the job over the duration”). The manpower schedules understated the amount of employees — particularly those necessary for concrete-related work — required at Montgomery Point. See Tr. at 251-52 (Herrick). For example, despite Mr. Herrick’s estimate that Montgomery Point required approximately 120 form carpenters at the peak of concrete operations, the manpower schedules show a peak of approximately sixty. See JX 200A at GP0005336; Tr. at 252-53 (discussing JX 200A). Likewise, despite Mr. Herrick’s estimate that Montgomery Point required approximately 100 laborers at the peak of concrete operations, the manpower schedules show a peak of approximately fifty. See Tr. at 328, 361. Although Mr. Herrick understood that the schedules would communicate manpower requirements to J.A. Jones’s Charlotte headquarters, see Tr. at 358-59, he does not seem to have signaled his opinion that a greater number of employees would be necessary, see Tr. at 356-57 (assuming the project manager was responsible for hiring additional employees or a personnel recruiting manager).
The project execution plan includes a two-page section labeled “Work Plan: Critical Activities,” JX 200A at GP0005374, by which Mr. Herrick sought to “[cjonvey what we considered the critical activities for the project,” Tr. at 375-76 (Herrick), but he did not intend “to imply critical path[,]” Tr. at 376 (Herrick). Rather, Mr. Herrick used the word “critical” to denote “important things we needed to pay attention to.” Tr. at 376. Mr. Herrick did not recall why he had included “Craft Capabilities,” JX 200A at GP0005375, as critical, nor did he recall why he did not list rebar and laborer productivity — in the context of concrete placement — as critical, id.; Tr. at 376, 378-79. On the other hand, the category “Form Work Unit Rates” for concrete placement was deemed critical because the Joint Venture intended “to keep track of how well [it] was doing with the concrete ... [and] mak[e] future projections of cost.” Tr. at 378 (Herrick); JX 200A at GP0005375. Mr. Herrick recalled that form work was one item that drove concrete scheduling, and he noted that the Joint Venture regularly tracked form work productivity and presented these productivity updates at its weeldy coordination meetings. “Concrete Placing Rates” also were critical. To that end, Mr. Herrick noted that the quantity of carpenters, i.e., those responsible for constructing forms, employed at Montgomery Point would be a bellwether for concrete placement. Tr. at 378,382.
Finally, the project execution plan flagged “Control Tower Construction” as a critical item, see JX 200A at GP0005375, including the note that “[t]he specifications require dry and wet testing of all operating systems[,][and][c]ompletion of the control tower to an operational level will control all testing [at] the lock and dam,” id. In 1999 Mr. Herrick knew that the control tower “had to be built before you could do testing,” Tr. at 383, and he correspondingly included a mile *621 stone on Schedule 0013 for “control tower operationally complete,” Tr. at 384.
5. Construction and concrete
The summer of 1999 at Montgomery Point marked the completion of the cofferdam and the parties’ earnest commencement of the construction of the lock and dam structure. During this period Mr. Herrick, as the project controls/senior engineer, assumed responsibility for the Joint Venture’s monthly schedule updates. 24 For the monthly updates, Mr. Herrick drew from his observations of the Joint Venture’s progress at Montgomery Point, the submitted time sheets from employed craftsmen, and the monthly quality control reports 25 discussing the activities of the Joint Venture and its subcontractors. He occasionally made “logic changes” to the schedule’s order of work as the Joint Venture rearranged its planned sequence of work in response to unforeseen problems or developments. See, e.g., JX 1405 at FF288597 (lock critical activities). Logic changes could be used to hasten a substantial completion date, thus saving time on a critical path. See Tr. at 1168 (Herrick) (stating that a logic change in August 2003 did not save critical path days (citing JX 1405 at FF288597)). At one point Mr. Herrick was reprimanded for not bringing logic changes to the Corps’s attention, but, when he began submitting the changes for approval, he found that the Corps did not respond. He eventually reverted to making the logic changes on his own and noted that the Corps still “at the end of each month ... got a full update with a complete report that compared the previous month against the current month and showed all changes.” Tr. at 199 (Herrick). According to Mr. Herrick, the Corps provided “[a] minimal amount” of comments in response to these updates. Tr. at 199.
Mr. Herrick stated that the Joint Venture’s monthly schedule updates played a role in the Joint Venture’s practice for monthly billing the Corps. As part of the billing process, the Corps “reviewed [the monthly update], and [the Joint Venture] got to give [the Corps] a preliminary copy of the billing at about the same time, and then [the Corps] would tell if everything’s okay or [the Joint Venture] would make adjustments in one or the other and then do a formal sub-mittal.” Tr. at 202. The Joint Venture billed the Corps according to the assigned dollar value of completed activities. Mr. Herrick also described the Joint Venture’s other iterative scheduling activities, i.e., those in addition to its monthly schedule updates. The Joint Venture held weekly coordination meetings with Corps representatives. During these meetings the Joint Venture distributed simplified schedule updates reflecting on-going construction activities. Mr. Herrick termed these simplified schedule updates as his “three-week look-aheads [that were included] as part of the minutes to the meeting.” Tr. at 203. Mr. Herrick occasionally answered the Corps’s inquiries regarding the Joint Venture’s use of computer software to update the construction schedule. Tr. at 204 (Herrick).
When updating the Joint Venture’s schedule and billing the Corps, Mr. Herrick accounted for the progress of the Joint Venture’s subcontractors by “talking] to the superintendent to get his information as to percent complete or how far along or how much more duration [the subcontractors] needed.” Tr. at 473 (Herrick). The Joint Venture loosely controlled its subcontractors. Although quality control monitored the subcontractors’ work to prevent mistakes, see supra note 25, the subcontractor itself was responsible for determining its required order of work, see Tr. at 474 (Herrick) (“We subcontracted to gain the expertise of a particular [subcontractor.”). The Joint Venture deferred to a given subcontractor’s expertise unless the Joint Venture’s superintendent or project manager (Mr. Sickle) believed that there might be an impact on the Joint Venture’s plans. See *622 Tr. at 474 (Herrick). The Joint Venture’s first general superintendent for Montgomery Point, Mr. Macon, coordinated any overlapping work, particularly in areas requiring the work of multiple subcontractors, i.e., the control tower. 26 As general superintendent, Mr. Macon oversaw and refereed the control tower work conducted by IHP and Plateau. See Tr. at 478 (Herrick). He spent approximately 65-70% of his time at the job-site, received reports from craft superintendents, 27 convened daily meetings with all superintendents and subcontractor representatives, and attended the Joint Venture’s weekly Corps-level coordination meetings. Tr. at 577-78 (Macon).
Completion of the cofferdam allowed the Joint Venture to begin constructing the lock and dam, and, to that end, the parties’ attention shifted to proportioning, testing, and placing concrete. The Joint Venture chose and proposed the component materials, e.g., cement, fly ash, aggregate, etc., of the concrete for the Corps’s acceptance. 28 See JX 87 at FF415802; Tr. at 221-24 (Herrick) (describing aggregate selection). The Joint Venture proposed Class C fly ash. Through the buy-out process, the Joint Venture had selected Luhr Bros, as its subcontractor to supply coarse aggregate and, as fine aggregate, manufactured sand; the Joint Venture nominated these components for the Corps’s approval, as well. See Tr. at 222-25 (Herrick) (“Luhr Brothers was [low bidder] for the coarse aggregate. They did not bid sand at that time, they did it later... .”). 29 The Joint Venture had not been aware of any workability problems with Luhr Bros.’ manufactured sand. See Tr. at 225-26 (Herrick) (“Luhr produced the manufactured sand, they bought the equipment to make the gradations, they used material from their quarries ... and they ground it and then washed it to produce the gradations.”); see also Tr. at 1090-96 (Herrick) (discussing selection of manufactured sand and the manufactured sand’s acceptable test results). The Joint Venture also proposed a Portland cement mix that conformed with a Corps technical requirement for Type 2 low heat concrete. See Tr. at 946-47 (Herrick) (discussing bidding for Type 2, describing Type 2 as an exotic concrete, and stating “suppliers preferred to produce Type 1”).
As the Joint Venture nominated materials, the Corps verified that the proposed materials complied with the Contract’s specifications and subsequently proportioned the accepted materials to create a concrete mix suitable for testing. See Tr. at 1742-43 (Winters) (confirming that the Corps would not rely on material testing by material suppliers or contractor); see also Tr. at 1728 (Winters) (acknowledging the Corps’s responsibility for mix proportions); Tr. at 1835 *623 (Winters) (agreeing that “there would be acceptance testing of the materials before the mixed proportions were tested”). The Joint Venture’s submittal of the material samples for the Corps’s testing was untimely, as the specifications required material testing to occur twenty days after the notice to proceed issued, i.e., no later than September 1997. See JX 89 at FF003257 (Contract § 03305, Spec. No. 1.3.1.1); Tr. at 1750 (Winters); see also Tr. at 1010-19, 1043-45 (Herrick) (discussing submission of aggregate samples).
Mr. Winters characterized the impact of the Joint Venture’s tardy submission of material samples:
I don’t think it had so much of an effect on the testing of the fine aggregate. It did have some effect on the mixture proportioning in that we were cut short on some of that. We provided the field with some mixtures that we didn’t have complete testing on that were conservatively proportioned.
Tr. at 1751. Yet, Mr. Herrick acknowledged that, because the materials were not submitted by the Joint Venture by September 1997 for testing, the Corps spent less time investigating the fine aggregate’s physical characteristics. See Tr. at 1047-48; see also JX 390 (Corps memorandum dated December 3, 1999, which discussed fine aggregate test results and concluded that “lingering questions about the quality of the project fine aggregate ... [are] placing this schedule of work in jeopardy”); JX 456 at GP0008982 (March 24, 2000 letter from Daniel E. Cle-mans, Administrative Contracting Officer, to Mr. Sickle, stating that “the late submission of the initial round of aggregate samples, and the poor quality results ... has raised considerable concern within the Corps over your ability to make satisfactory progress in beginning concrete operations”). Ultimately, however, the Corps approved both the Class G fly ash and the manufactured sand, 30 but provided gradation specifications both to Luhr Bros, for the “production of [the fine] aggregates ... and to [the Joint Venture’s] quality control group to do the testing to these standards.” 31 See JX 651 at GP0011998-99 (“The manner in which you are developing the fixed grading curve for the fine aggregate appears acceptable Based on this and suitable fine aggregate test results off of the sampling belt, I do not object to your continuing concrete operations.”); Tr. at 227-30 (Herrick).
Mr. Winters periodically communicated with Mr. Neeley regarding the Corps’s tests of mixture proportions and testified regarding the content of their communications. Tr. at 1744 (Winters). A January 22,2000 e-mail from Mr. Neeley to Mr. Winters described sample mixes, as follows:
[The mixes] are not the best mixes I have ever proportioned, but I think it is about *624 as good as I can do with the manufactured sand. It is almost impossible to proportion a really workable mass mixture with that sand. Don’t misunderstand, they aren’t bad, they just aren’t as good as I like to provide. The sand content has to be increased, which drives up the water demand, which drives up the cementitious content.
JX 408. Mr. Winters acknowledged that, as of the date of his e-mail, he understood that the Joint Venture’s use of manufactured sand in the concrete mix correspondingly would require more cementitious material in the mix. See Tr. at 1745 (Winters). Mr. Nee-ley’s February 2000 comments indicated that the angular manufactured sand vis-á-vis the rounded natural sand would challenge workability. See JX 425 at GP0006879; Tr. at Í065-66 (Herrick). On March 16, 2000, Mr. Winters e-mailed Mr. Neeley, expressing concern regarding the particle shape of the fine aggregate — for which there was no specification — -as well as the cost, heat buildup, and workability of the proportioned mix. See JX 443. He stated:
Our geologist brought back some samples of the manufactured sand. It is the first sample that we have seen. The particle shape looks much worse than I expected. After seeing the samples, we are concerned about workability. We don’t want to have to add a lot of cement/fly ash to the mixture just to improve workability of poor aggregate. It is not right for the government to incur additional costs, have greater shrinkage, and heat buildup in the mass concrete just to use a marginal aggregate for the convenience (cost savings) to the contractor.
I would suggest that we proportion the mixtures for strength with similar amounts of cement/fly ash (minor variations would be expected) and then we invite the contractor to look at the workability. He has already expressed some concern about workability. The contractor probably does not want to place harsh concrete. This would perhaps lead him to choose the more workable manufactured sand/natural sand blend, if we approve it for durability. I do not think he will choose the all natural sand on his own. What do you think?
Id.
On May 2 and 3, 2000, the Joint Venture and the Corps jointly assessed the Corps’s use of both manufactured and natural sand in test mix proportions. See Tr. at 1748 (Winters); Tr. at 1244-45 (Sickle). An internal Corps e-mail dated May 4, 2000, summarized the parties’ conclusions, with Tom Clement, a design engineer with the Corps who served as design coordinator, assuring that both an all-natural sand mix and an all-manufactured sand mix exhibited good workability. See JX 501. The manufactured-sand mix required extra cement and fly ash. See Tr. at 1749 (Winters) (“Billy [Neeley] did a good job proportioning the mixes and he added extra cement and fly ash to that mixture to make up for the manufactured sand and gave [sic] peak workability.”); see also Tr. at 1815 (Winters). Due to the added cementitious content, the mix with all-manufactured sand was more expensive for the Corps. See Tr. at 1830 (Winters). The Corps did not direct the Joint Venture to use the mix with all-natural sand, and it declined to express its own preference, as its testing had begun to suggest that the manufactured sand was passable. See Tr. at 1749 (Winters) (“[P]art of the point of the meeting was to let [the Joint Venture] look at the two different mixes and make an informed decision. We had already expressed some concerns with the manufactured sand, the workability of the concrete with the manufactured sand.”); Tr. at 1091-96 (Herrick) (discussing tests revealing acceptable workability).
The Joint Venture previously had discussed whether to use natural or manufactured sand and had expressed concern regarding the higher cost of natural sand. See Tr. at 1062-63 (Herrick) (testifying regarding additional logistical and availability concerns). Ultimately, the Joint Venture elected to use a mix with Class C fly ash and manufactured sand. See JX 510 at GP0009794 (handwritten notes from a Joint Venture meeting dated May 11, 2000, stating: “Both manufactured/natural sand okay[.J Will use manufactured”). By letter dated May 12, 2000, Mr. Clemans approved the *625 Joint Venture’s fine aggregate selections. See JX 513 (“The coarse aggregate material is acceptable. Both the natural fine aggregate blend and the manufactured fine aggregate produced quality concrete and are acceptable.”).
The Joint Venture continued to install the final features of its concrete-manufacturing batch plant, including the conveyor-belt delivery systems, in May 2000. See Tr. at 1101 (Herrick). Concrete placement began in late June or July 2000, see Tr. at 236 (Herrick), with concrete slump tests and ongoing material tests conducted on-site, see Tr. at 1836-37, 1840-44 (Winters) (describing, in addition to regular slump tests, sieve tests used for the quality control of aggregate particle sizes); see supra note 31 (describing on-site tests of fine aggregate). According to Mr. Herrick, the concrete mix immediately exhibited rapid slump loss, i.e., “flash-setting,” or a rapidly hardening concrete mix exhibiting too little slump, which manifested in a fina-ble, brittle, and increasingly unworkable concrete mixture. See Tr. at 232-33 (Herrick) (“[W]e saw the flash set in the initial concrete pours.”); see also Tr. at 1475 (McPherson) (“[Slump loss occurred] [o]n the first pour.”). The slump loss complicated concrete placement:
Material becomes hard and unworkable, it becomes set, it’s not fluid or liquid — it’s not really a liquid but concrete in its wet state is a fluid mix, it can be moved with a vibrator, pushed with a shovel. When it becomes the flash set [sic] it begins to get set or become hard like finished concrete and it is not movable or pliable or workable.
Tr. at 233 (Herrick). Still, placement continued, which Mr. Herrick characterized:
It took more than a reasonable effort and more than a customary effort to place the concrete. And when I say place, that only includes the actual delivery into the form. We had trouble getting it out of the bucket, out of the trucks, and our delivery was impacted as well sometimes out of the plant.
Tr. at 236-37; see also Tr. at 594 (Macon) (“It took much more effort and time to achieve the desired result as far as consolidating the concrete.... ”); Tr. at 1476-79 (McPherson) (describing the same). Mr. Herrick observed the Joint Venture’s vibrator crews experiencing particular difficulty:
Typically when you hit [concrete] with a vibrator the concrete liquefies and will actually flow and move, and it would not do this, it was stiff, hard, and in fact when [you] pulled a six-inch vibrator out sometimes you would see a crater the size of the vibrator, and then they would have to use a shovel and fill that in and then revibrate it to seal it up.
Tr. at 237; see also Tr. at 592-94 (Macon) (describing appearance of rapid slump loss in June 2000).
Although the Joint Venture continued placing concrete with intermittent work stoppages throughout the summer and fall, 32 it continually complained about the concrete’s workability. See Tr. at 1481-84 (McPherson). The Joint Venture eventually halted placement of concrete altogether in mid-October 2000. See JX 726 at FF038732 (October 23, 2000 letter from Mr. Clemans, the ACO, to William G. McPherson, the project manager, discussing October 18, 2000 meeting, during which “Mr. Doug Sickle advised [that the Joint Venture] ... is not going to proceed with further concrete placements with the current mix design due to the risk of unsatisfactory results”). The Corps— through its on-site representatives and its laboratory at the Waterways Experimental Station (“WES”) — investigated the slump- *626 loss’s cause, 33 and it eventually blamed the Class C fly ash in the concrete mix. See JX 679 (September 19, 2000 letter from Mr. Clemans to Mr. McPherson attributing slump loss to Class C fly ash and recommending Class F fly ash); Tr. at 232, 235-36 (Herrick). Accordingly, the Joint Venture replaced the Class C fly ash with Class F fly ash, and it began receiving the Class F fly ash and integrating it into the concrete mix in November 2000. See JX 726 (October 23, 2000 letter from Mr. Clemans discussing the Joint Venture’s switch to Class F and potential switch to natural sand); Tr. at 238 (Herrick); see also Tr. at 1333-35 (Sickle). Concomitant with the switch to Class F fly ash, on November 7, 2000, the Joint Venture notified the Corps that it would submit a claim for the cost of the switch. JX 761 (notification letter); JX 693 (October 3, 2000 letter from Joint Venture to the Corps stating that “this additional cost is not our responsibility since we have not been supplied a mix design that is adequate”); Tr. at 1347-48 (Sickle); Tr. at 1487-88 (McPherson). The Joint Venture resumed placing concrete in November 2000, with subsequent placements occasionally halted or slowed due to weather conditions and equipment breakdowns. 34 See Tr. at 236 (Herrick). See generally Tr. at 624 (Macon) (stating that Joint Venture did not endure an “unusually large” number of breakdowns); Tr. at 524-43 (Herrick) (testifying as to the Joint Venture’s daily reports describing poor weather and mechanical problems with creter crane and other equipment).
Mr. Winters testified that the Corps considered the Joint Venture’s concrete placements with the Class F fly ash — at least, those that he observed after January 2001— to be successful. See Tr. at 1835 (Winters). But see Neeley Dep. at 37 (“There continued to be issues with slump variability and placement problems.”). Plaintiffs’ former employees testified contrary to Mr. Winters. See Tr. at 238-39 (Herrick); Tr. at 613-14 (Macon). Mr. Herrick related that, as concrete placements continued throughout the winter, the quality of the concrete mix remained unsatisfactory. See Tr. at 420 (testifying that, despite the switch to Class F fly ash, “we still had issues with the quality of the end product”). Plaintiffs previously had identified workability problems 35 associated with the manufactured sand and had eontem- *627 plated switching to natural sand. 36 ” See JX 726 (Mr. Clemans’s October 23, 2000 correspondence referring to potential switch to natural sand); Tr. at 1335 (Macon). Indeed, although the concrete’s rapid slump loss had improved after the fly ash switch, workability remained affected by “bleed water problems, ... problems with still getting the material to consolidate^] and ... voids in the concrete.” Tr. at 240 (Herrick); Tr. at 614 (Macon) (“It was workable, but it took a significant more [sic] effort....”); Tr. at 633-35 (Macon) (testifying that the Corps never provided an adequately workable concrete mixture). Mr. Macon described unnatural “honeycombing” that created the voids in the concrete placements, complicating the work of the finishers and requiring additional labor and time to repair the compromised concrete placement. See Tr. at 602-07, 615— 19. The Joint Venture and the Corps discussed the honeycombing and its related problems. See Tr. at 606-07 (Macon) (“[The Corps] wanted [honeycombing repairs] done in a more timely manner.”).
Prompted by its continuing complaints regarding the workability of the concrete, the Joint Venture retained Dr. Carrasquillo as a third-party concrete consultant, Tr. at 1491— 92 (McPherson), and discussed potential mix improvements with the Corps. Dr. Carras-quillo proposed running tests of trial batches of concrete with differently proportioned materials. See JX 845; Tr. at 1349 (Sickle). A summit to discuss the concrete mix was held on January 31, 2001, and was attended by Dr. Carrasquillo and other representatives of the Joint Venture and the Corps. 37 See JX 845; Tr. at 1495 (McPherson). Both the three-inch and 1.5-inch mixes were discussed. See Tr. at 2371 (Carrasquillo). Following the summit the Joint Venture and the Corps agreed to adjust the mix design, and the Corps subsequently designed tests for trial batches. See JX 845 (listing areas of concern, including lowering bleed-water while improving strength gain and plaeeability); Tr. at 1495-96 (McPherson). During the remainder of the Project, the Joint Venture would continue to use the three-inch and 1.5-ineh mix designs that were formulated on January 31, 2001. See Tr. at 2442-43 (Car-rasquillo). A March 28, 2001 invoice documents the final consulting services provided by Dr. Carrasquillo to the Joint Venture. See PX 229; Tr. at 2416-18 (Carrasquillo). By May 2001 the Joint Venture conclusively forswore switching to natural sand. 38 See JX 967; Tr. at 1372-73,1377 (Sickle).
Mr. Herrick tracked costs occasioned by the switch to Class F fly ash and due to subsequent concrete-placement problems, which included routine “point and patch” repairs 39 and work attributable to the atypical honeycombing. See Tr. at 309-14 (Herrick). In July 2001 the Joint Venture submitted a claim to the Corps. JX 1000. A September 21, 2001 summary report prepared by Mr. Neeley responded to the Joint Venture’s claim. See Tr. at 1758 (Winters) (discussing *628 PX 222). Mr. Neeley’s report discussed the fly ash used in the mass concrete:
Specifications allow[ ] use of fly ash meeting either class F or class C requirements of ASTMC 618. The original class C fly ash met these requirements. Unfortunately, the ASTMC 618 is lacking in some areas, i.e., performance in concrete mixtures, effect on workability over time, etc. The [Corps] uses this ASTM specification because it is the one widely accepted in the U.S. and because we currently do not have anything better. What little we know about the rapid loss of workability problems often associated with some class C fly ash has come from troubleshooting at various project sites.... However, the original class C fly as[h] source chosen by [J.A. Jones] has rendered rather docile behavior when used on earlier projects. We initially did not anticipate any workability problems with this fly ash based upon its past history. However, as things turned out, something has obviously changed since the last time it was used on a [Corps] project we were involved in. We still do not know exactly what it is about the fly ash (perhaps something in the chemistry) that causes certain class C fly ashes to behave badly.... In hindsight, we should have run ... tests [at] the very beginning of the mixture proportioning exercises. However, we did not largely because it had performed well in the past. Having said all that, the bottom line is the original class C fly ash chosen by [J.A. Jones] did meet the contract requirements and therefore may be a problem for the [Corps].
PX 222 at GP0014832-33. The report also discussed the use of manufactured sand:
This element cuts both ways. The project specifications do allow the use of manufactured fine aggregate. That bolsters the clam [sic] of [J.A. Jones]. On the flip side, we advised against the use of manufactured fine aggregate from the very beginning. We advised [J.A. Jones] that it would be very difficult, if not impossible, to provide concrete mixtures having the level of good workability usually associated with projects such as this one. The angular nature of the manufactured fine aggregates does not lend itself to good workability as does natural sand fine aggregate. Higher cementitious content can improve the workability of mixtures with manufactured fine aggregate to some degree, however, there are practical limits on how much cementitious content can be increased on mass concrete mixtures. The [Montgomery Point] mass concrete did have higher cementitious contents than has historically been used in similar mixes for the [Corps]. I should be able to dig through old records in my office to demonstrate this. If so, that indicates that we made a good faith effort in trying to properly adjust the mixtures for the detrimental properties of the manufactured fine aggregate. The other issue is [J.A. Jones’s] inability to keep the manufactured fine aggregate within the requirements of the project specifications. This contributes heavily to the fluctuating slump and strength values due to its impact on water demand in J.A. Jones’s typical remedy.
Unfortunately, the set of materials chosen by [J.A. Jones] to use at [Montgomery Point] did not [maximize workability, strength, durability, and economy]. In an ideal world, any set of materials of which each single material met its respective specification could be combined in such a way that a properly balanced mixture could always be achieved. Unfortunately in the concrete realm, such is not always the case. [Montgomery Point] is an example of a case where a desirable balance has yet to be found. At various times [J.A. Jones] stated that the lack of desirable workability is the result of our inadequate mixture proportions. This implies that desirable mixture proportions could be attained with a different set of mixture proportions. In my opinion, this is an unrealistic assumption. We tried many different proportions. Some improvements in workability and placeability were eventually found, but a level of improvement desired by the Corps or [J.A. Jones] was never attained.
PX 222 at GP0014833-34.
6. Construction and labor
1) Montgomery Point
Throughout the Project the Joint Venture staffed its crews with experienced and inex *629 perienced employees, blended in order to “train the people who are less than perfect or desirable and come up with a mix ... to still achieve the desired result.” Tr. at 638 (Macon). The Joint Venture had attained appropriate mixes of skilled-craft crews since the beginning of the Project, and, when concrete placement began in the spring of 2000, the Joint Venture was “in pretty good shape because it seemed that [it] had an adequate number of people who were skilled vibrator hands, and then the people who weren’t picked it up quickly.” Tr. at 639 (Macon); see also Tr. at 264 (Herrick) (“[F]or the beginning of concrete we did rather well at getting people.”). Still, the commencement of concrete placement necessitated a larger concrete-related workforce, and carpenters became increasingly important as the Joint Venture required more forms to structure the placements. Mr. McPherson described the Joint Venture’s expectations: “In the beginning you have large areas of concrete, minimal form work. As you progress on the project, you have more form work versus the cubic yards of concrete that you can place.” Tr. at 1525-26 (explaining that mud-slab placements in July 2000 required less carpentry than form-intensive placements in July 2001). Similarly, in response to a question regarding the Joint Venture’s May 2001 plan to recruit carpenters, Mr. Sickle understood that “[t]he labor force from the start of concrete operations [would] continually expand until [the Joint Venture] reach[ed] the peak for need for carpenters.” Tr. at 1273; see also Tr. at 1526 (McPherson) (acknowledging that, when he arrived at Montgomery Point in June 2000, he understood that the Joint Venture would recruit more carpenters “in some period of time, yes”). 40
With the Joint Venture hiring more carpenters, Mr. Macon witnessed a “downward spiral in terms of quality....[p]redominantly [with] the carpenters.” 41 Tr. at 639 (Macon) (“[Carpenters] had the most numbers so therefore it was more evident with regard to the carpenters.”); see also Tr. at 255-56 (Herrick) (describing deteriorating quality and turnover). Mr. Macon pinpointed the deteriorating quality of the carpentry workforce as most evident in late 2000 and in early 2001 42 : “As the concrete operations expanded and [the Joint Venture] opened up more work areas, ... it became more evident that [the Joint Venture] needed more crews.” Tr. at 640 (Macon); see also Tr. at 641-43 (Macon) (identifying from aerial photograph increased form work in May 2001 across the Project, including on floor slabs, the control tower foundation, the navigational pass, the overflow spillway, and the abutment (see PX 639)); Tr. at 255 (Herrick) (“After we opened up the navigation pass [i.e., 2001] and needed more carpenters and laborers, that’s when we began to have problems getting quantity and quality of craftsmen.”). The Joint Venture consequently intensified its recruiting in 2001, which Mr. Macon described:
Well, the first means of trying to increase our recruitment was that we were currently advertising in local newspapers, *630 and then we expanded that out to include Arkansas, Mississippi, Louisiana, Texas, Alabama, Tennessee, and then if we heard of any area where there were plant shut downs in some of these smaller communities that were being closed at the time we would target those, towns looking for carpenters, laborers, iron workers, craftspeople who we could utilize. We had some assistance with regard to placement of ads in national trade magazines.
There’s a hot sheet which is, again, it’s sort of an employment sheet for upcoming projects and outages and shut downs across the country. We advertised in that. Then, as I said, we just expanded out beyond the local. Then we also used an employment service. The first one we tried was PPM [Power Plant Maintenance], which was a company which was affiliated with J.A. Jones.... We attempted to get craftspeople from there and bring them in to set them in our workforce, and then we ended up going to another local labor service called Labor Finders which was located, I believe, in Little Rock, Arkansas.
Tr. at 644-45. The Joint Venture complemented its intensified recruiting by offering better pay and training, as well. See Tr. at 646-49 (Macon). Mr. Macon described the Joint Venture’s offering an escalated per diem, awarding bonuses and benefits to qualified employees, and increasing wage rates. See Tr. at 646^18.
Despite its efforts the Joint Venture was not able to obtain sufficient skilled craft to perform its work. 43 See Tr. at 645 (Macon). According to Mr. Macon, the Joint Venture
was still short and there was an extremely high turnover rate in all crafts. That was accentuated with the carpenters because there were more of them.... We continued to have that problem until the quantity or the progress on the job started to, we reached a completion point and we started downsizing.
Tr. at 645. Mr. Macon qualified the balance of experienced and inexperienced employees on crews as, “instead of a 50/50[,] ... more like 25 percent good to 75 percent not as good.” Tr. at 648. Even with the Joint Venture’s supplemental training, the poor quality of labor slowed the progress of construction and delayed the Joint Venture’s form work and concomitant concrete placements. See Tr. at 649-51. Mr. Macon explained:
[W]e didn’t have as many people who were just qualified so the crews weren’t getting as much of the work, nor performing the quantity of work which we desired from them, so you ended up having more crews, but then that became a situation where you didn’t have enough people to man the crews that you had, and so then it became more of a choice as to whether or not we operated short-handed with regard, as I said, to crews, or the crews that we had, we had to pay more and increase the amount of supervision. Typically you’d have three to five crews under a general foreman and then another one or two general foremen on a job of this size. We ended with actually three carpenter superintendents at one point, and then multiple general foreman [sic] where everybody’s level of skill with influence was just less. We had more supervisors for less people.
Tr. at 650. 44
2) Pine Bluff
Concurrent with, but independent of Montgomery Point, the Corps had contracted for *631 the design and construction of the Pine Bluff Chemical Demilitarization Project (“Pine Bluff’), an incinerator facility in Pine Bluff, Arkansas. 45 Built by the Raytheon Demilitarization Company (“Raytheon”), Pine Bluff is an incinerator used to destroy-in compliance with an international treaty to which the United States was a signatory-chemical weapons stockpiles. 46 Testifying about the settlement that plaintiffs contend upended the Joint Venture’s retention of skilled laborers at Montgomery Point was Richard Neal Graham, an employee of the Corps’s Contract Administration and Quality Assurance Team for the Chemical Weapons Department located at the U.S. Army Engineering and Support Center, Huntsville, Alabama. As part of the team at Pine Bluff, he worked with approximately twelve team-members with experience in construction, scheduling, and quality assurance inspections. Tr. at 1893 (Graham). Mr. Graham supported the field work at Pine Bluff, worked on the Corps’s response to a Raytheon request for equitable adjustment (the “Raytheon REA”), and assisted with processing several smaller contract modifications. Tr. at 1893-94 (Graham). William Joseph Taylor served as Ray-theon’s construction manager at Pine Bluff beginning in August or September of 1998, Tr. at 1964-65 (Taylor), and supervised a project planning and scheduling team responsible for assembling data for the Ray-theon REA Tr. at 1974-75 (Taylor). He testified as an independent contractor employed by plaintiff Fireman’s Fund Insurance Co. (“Fireman’s Fund”).
According to a June 1999 Project Management Plan for Pine Bluff, the Defense Authorization Act of 1986 directed the Department of Defense “ ‘to develop a comprehensive plan to dispose of the nation’s stockpile of lethal chemical agents and munitions by 30 September 1994.’ ” PX 130 at GP0005021 (citing Pub.L. No. 99-145, § 1412 , 99 Stat. 583,747 (1985) (codified as amended at 50 U.S.C. § 1521 (2006))). Subsequent legislation extended the program completion date. Tr. at 1897 (Graham). On July 25, 1997, the Pine Bluff contract was awarded to Raytheon by the U.S. Army Industrial Operations Command (the “Industrial Operations Command”), with an anticipated notice to proceed of September 1, 1997. See PX 126; PX 16 at GP0006941; Tr. at 1913, 1917 (Graham). The Pine Bluff Project Management Plan describes the U.S. Army Engineering and Support Center in Huntsville as the program execution agency, with the Corps’s Little Rock District “assigned the responsibility for designing construction of support facilities and for design of roads and utilities outside the fence of [Pine Bluff.]” PX 130 at GP0005021. The Corps was tasked with the construction of multiple buildings of heavy re-enforced concrete. Tr. at 1966 (Taylor).
Due to a bid protest, Raytheon received a stop-work order on August 7, 1997. PX 126; Tr. at 1913 (Graham). A limited notice to proceed followed in October 1998. Tr. at 1967 (Taylor). According to a Defense Contract Audit Agency (“DCAA”) audit request, a full notice to proceed came on January 15, 1999; at that point Pine Bluffs completion had been delayed for 525 calendar days, i.e., until September 2001. PX 126. Raytheon recruited union labor, and all craft employees were subject to a wage-freeze agreement implemented by Raytheon in October 1998. Tr. at 1968 (Taylor). However, notwithstanding the wagefreeze agreement, Raytheon’s hiring remained adequate for approximately three to six months, at which point it began its heavy structural concrete work. Tr. at 1970 (Taylor). Mr. Taylor described Raytheon’s struggle to hire adequately skilled workers and a sufficient number of workers, with the latter becoming particularly problematic in early summer 1999. Tr. at 1970-72 (“We would call out 30 carpenters and get 20. *632 And aftei’ a while, we started ordering 30 when we needed — when we only needed 10 to get the numbers to show up at least.”).
Raytheon submitted the Raytheon REA, Pai’ts A and B, for compensation owed on account of the delay occasioned by the stop-woi’k order. See Tr. at 1899-1900 (Graham). Part A of the Raytheon REA dealt with the direct costs of re-escalating woi’k at Pine Bluff, particularly the inflated cost for materials and labor. Part B sought further labor-related compensation, including both entitlement and quantum, because the delay forced Raytheon to compete with “five or six specific projects in the surrounding area, and that in order to get labor to [Pine Bluff][,] [Ray-theon was] now having to compete with these projects that [it] did not anticipate having to compete with.” Tr. at 1901-02 (Graham); see also PX 126 (“[Raytheon] is now stating that due to the 525-day delay, the available qualified/skilled labor force in the construction ai’ea [has] diminished; and wage rates have increased considerably and will, therefore, cost [Raytheon] additional monies to properly staff the project.”). Prior to the delay, “there were no known significant craft consuming manpower projects scheduled for the project performance period of September 1997 to May 2000 with a labor peak in the summer of 1999.” PX 16 at GP0006964 (the Raytheon REA). Subsequent to the delay, however, Raytheon identified “significant newly started projects during the current performance period of January 1999 through 7 December 2001, with a peak in December 2000.” Id.
The Coi’ps received and began analyzing Part B of the Raytheon REA, dated February 23, 2000, see id. at GP0006934, on about February 24, 2000, Tr. at 1906 (Graham) (discussing PX 139, an e-mail from Mr. Graham dated February 24, 2000). Part B requests a modification to address the deteriorating Pine Bluff labor situation occasioned by increased labor competition. Part B notes Raytheon’s particular difficulty after the delay in filling its requirements for carpenters and ironworkers, PX 16 at GP0006960, although Mr. Graham recalled problems in recruiting all trades for Pine Bluff, Tr. at 1922-23. Part B identifies several labor modifications necessary for recruiting these trades, including “Labor Rate Parity, Travel, Allowance and Daily Per Diem.” PX 16 at GP0006957. The wage-freeze agreement had locked Raytheon’s wages below the rates of Arkansas’s local unions; however, by attaining labor rate parity with Little Rock, Arkansas union rates— and by adding travel allowances and daily per diem-Raytheon expected to hire a sufficient number of skilled employees. Tr. at 1976-77 (Taylor); see also Tr. at 2011 (Taylor) (“It was a combination of all the REA part B that brought the numbers and the higher skill levels to the site.”). Moreover, expecting that the unions would draw workers from non-union jobs — employees who were not accustomed to paying union dues— Raytheon also requested “union dues for open shop” in order “to provide yet another incentive to come aboard and join the union craft [at Pine Bluff].” Tr. at 1986 (Taylor).
Part B lists five “significant newly started projects,” PX 16 at GP0006964-65, impacting Pine Bluff’s labor market. Curiously, the list does not include Montgomery Point. See id.; see also Tr. at 2003 (Taylor). According to Mr. Taylor, Raytheon did not include Montgomery Point on the list because Montgomery Point’s construction was already substantially underway. See Tr. at 2004 (Taylor). The court questioned Mr. Taylor on this testimony, as the caption to the project list refers to newly started, ongoing projects; Mr. Taylor testified that the caption “[s]hould read to be performed, because they were forthcoming jobs.” Tr. at 2006 (Taylor). Mr. Taylor gave the following overview on hiring at that time:
[Montgomery Point] was another project that obviously we were in some competition with. But it was far removed from our, our main drawing point, meaning Little Rock. We were drawing the craftsmen out of the union hall as our hiring source. That was only 30, 35 miles away, and [Montgomery Point] was 70, 80 miles away.
Tr. at 2007-08. But see Tr. at 2014 (noting that per diem and travel allowances were paid for employees traveling 125 miles to Pine Bluff).
For Part B, Raytheon requested a modification of approximately $24 million. See PX *633 16 at GP0006958 (“The total price for this [REA] is $23,965,790[.]”). Mr. Graham’s pre-negotiation objections called for a counteroffer of $14 million, but, following final negotiations conducted on April 25, 2000, between Raytheon and the Corps, the Corps issued a modification of $22.5 million. 47 Tr. at 1903, 1907, 1934, 1944 (Graham). This modification allowed Raytheon to recruit both union and non-union labor. Tr. at 1920, 1927-28 (Graham). Indeed, although all of the new employees came to Pine Bluff through the union, some of these new recruits had transferred to union employ from non-union jobs. Tr. at 1982-83 (Taylor). In Mr. Taylor’s opinion, after Raytheon normalized labor rates and implemented travel allowances and per diem payments, the skill-set of Ray-theon’s Pine Bluff employees became much better. Tr. at 1990. Further, when evaluating skilled-craft employees at Pine Bluff in February 2001, Mi'. Taylor had found that absentee rates improved, recruitment took less time, and turnover decreased. Tr. at 1992-95. But see PX 215 at COEPB00001582, 1602 (showing that, as of February 2001, no carpenters recently hired; union dues expended for open shop labor at 0%; and only 12% of committed per diem spent).
7. Completing Montgomery Point
While the Joint Venture was constructing Montgomery Point, J.A. Jones’s parent eom-party was struggling financially, which led to J.A. Jones’s declaration of bankruptcy in September 2003. See Tr. at 481 (Herrick); see also Tr. at 660 (Macon). Following J.A. Jones’s bankruptcy, plaintiffs financed the continued construction of Montgomery Point, and the Corps at that time (September 2003) began withholding liquidated damages for construction delay. Work on the Project continued uninterrupted, as Clark Construction (“Clark”) immediately assumed responsibility for constructing Montgomery Point in a “seamless transition.” Tr. at 660-61 (Macon) (acknowledging that a delay of a “couple days” in wages ensued and that a few employees left the Project at this time). Fru-Con Construction Corporation (“Fru-Con”) later assumed responsibility for the Project’s construction in a transition that was “even more smoother than the first one.” Tr. at 662 (Macon). 48 On March 25, 2004, plaintiffs, as sureties, signed an official Takeover Agreement with the Corps, assuming responsibility for the Contract’s performance, and inheriting all rights, title, and interest as if they were the original contracting party. 49 See JX 1657 (the “Takeover Agreement”). The United States Bankruptcy Court for the Western District of North Carolina approved the assignment of the Contract to plaintiffs on June 9, 2004. 50
The Joint Venture began constructing the control tower in spring 2002. The control *634 tower consists of several floors of reinforced concrete, with each floor supported by concrete columns and concrete walls. See Tr. at 2107 (Clemans). The Joint Venture soon identified a conflict between an embedded steel plate and the reinforcing steel for the stairs and the control tower, which Mr. Cle-mans described:
The problem with the embedded plates was fairly simple. It was hitting the reinforcement steel that came up from the top of the lock wall. That steel couldn’t move. The embedded plate could not be moved. That had been addressed in an earlier RFI. There were six inch anchor studs welded to the back of the embedded plate.
Tr. at 2108; see also Tr. at 652 (Macon). The Joint Venture had misplaced rebar in that vicinity, but Mr. Herrick testified that the placing error did not contribute to the conflict. 51 See Tr. at 267-68. He elaborated:
Yes, the reinforcing steel that protruded above elevation 138 did have a placing error. We did fix that, but _ [t]he concrete distance, the thickness of the concrete between the face of the form and the rebar was three inches. The stud was six inches. The rebar had been placed too far back. So it did give us some space, but the fact that the stud was six inches, it was still in the way.... So even with it put back into its original location, it still had the issue.
Tr. at 267-68. But see Tr. at 2110 (Clemans) (discussing congested and “out of place” steel, which “at that time ... became the controlling problem”).
On April 23, 2002, the Joint Venture submitted to the Corps request for information (“RFI”) 787, requesting clarification regarding the embedded plate and construction of the control tower. 52 See JX 1163. During the parties’ May 8, 2000 coordination meeting, Mr. Herrick recorded that “[the Corps] will check and advise on [RFI] 787[,] as it is due today.” 53 JX 1179; Tr. at 264 (Herrick). Still, a response was not immediately forthcoming. Tr. at 265 (Herrick); see also Tr. at 658 (Macon) (“[W]ith the amount of time that it took to get the response on this RFI the wall placement went on and the column placement had to be made later.”); Tr. at 2109 (Clemans) (acknowledging that the Corps’s response “was pretty slow”). Outstanding RFIs were topics of discussion dur *635 ing project engineer Martin Porges’s weekly status meetings with the Corps, and Mr. Herrick knew that the Corps was apprised of the construction delays attributable to its delayed response. See Tr. at 261, 266 (Herrick); see also JX 1218 (June 11, 2002 letter from Mr. Macon advising the Corps that the lack of a response to RFI 787 “has delayed the concrete in the control tower”). On May 30, 2002, Harza, the Corps’s architect/engineer, visited the Project site to evaluate the reinforcing steel and consider alternate splicing/coupling methods. See Tr. at 2110 (Cle-mans). The Joint Venture received verbal guidance from the Corps on June 13, 2002, and received a formal, written response on July 2, 2002. See JX 1163; Tr. at 265 (Herrick); Tr. at 2111 (Clemans). The Corps recommended new sizes for the concrete columns, which entailed adjusting the anchors on the embedded plates and an alternative splicing of rebar. 54 See JX 1163; Tr. at 265 (Herrick); Tr. at 655-57 (Macon); Tr. at 2110-11 (Clemans).
Most of the Joint Venture’s concrete work was complete by summer 2003, and the Joint Venture considered that the co

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6660186. Public record. Not legal advice.