GRANTED IN PART; DISMISSED IN PART: May 14, 2019

GRANTED IN PART; DISMISSED IN PART: May 14, 2019

CBCA 5387

VET4U, LLC,

Appellant,

v.

DEPARTMENT OF VETERANS AFFAIRS,

Respondent.

Michael T. Stanczyk of Centolella Lynn D’Elia & Temes LLC, Syracuse, NY,

counsel for Appellant.

Harold W. Askins III, Office of Regional Counsel, Department of Veterans Affairs,

Charleston, SC, counsel for Respondent.

Before Board Judges DRUMMOND, LESTER, and O’ROURKE.

O’ROURKE, Board Judge.

Appellant, Vet4U, LLC (Vet4U), seeks reimbursement of additional costs and losses

resulting from an asbestos abatement contract with the Department of Veterans Affairs (VA).

The VA denied all twenty-three claims in their entirety. Vet4U appealed to the Board and

asked for a decision on the record. We grant the appeal in part and dismiss it in part.

Background Facts

In 2013, the VA solicited offers from qualified contractors to perform asbestos

abatement services at a veterans hospital in Syracuse, New York. The project scope included

“all demolition and construction services” necessary for the environmental remediation of

the hospital’s sub-basement or crawl space. These services included “excavation . . . into

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unreachable areas of the sub-basement,” “demolition and removal of all abandoned [] piping,

equipment, and systems,” and “abatement/encapsulation of soils, pipe insulation/gaskets, and

other asbestos containing materials (ACM) and presumed asbestos containing materials

(PACM).” It also required “selective demolition of existing electrical, communication, and

lighting circuits,” “repairs and structural modifications to caissons, grade beams, and

electrical grounding systems,” installation of an equipment lift system near a loading dock,

and construction of access ways into the sub-basement.

The solicitation included a project cost range between $1,000,000 and $2,000,000,

and required a phased approach to the work. To accommodate this approach, the subbasement was divided into work zones, each of which corresponded to an option under the

contract as follows:

Base Period: work zone A - phase 1 = dock/lift modifications

Option 1:

work zone A - phase 2 = access way excavation/encapsulation

Option 2:

work zone B = access way excavation/encapsulation

Option 3:

work zone C = access way excavation/encapsulation

Option 4:

work zone D/E = access way excavation/encapsulation

The solicitation specified time limits for performing each phase of the project as

follows: 240 days for the base period and 300 days for each option period, resulting in a total

performance period of 1440 days, or forty-eight months. Included in the contract were 589

pages of specifications and twenty-three drawings.

Multiple contractors attended the site visit in July 2013, including Vet4U. Interested

contractors inquired about quantities of rock and asbestos in the crawl space to ensure

accurate bidding. The VA responded by directing them to particular drawings and

specifications, as well as to an asbestos survey conducted in 2012 and a sub-surface soil

report dated September 15, 1949. According to the VA, this information was sufficient to

estimate quantities of soil to be removed, but rock excavation was to be treated as a differing

site condition.

The VA conducted an evaluation of proposals using the lowest-price technically

acceptable approach. Vet4U, the only bidder on the project, proposed an eighteen-month

period of performance at a total cost of $4,145,302, inclusive of all four option periods. On

September 23, 2013, the VA awarded Vet4U a firm fixed-price contract in the amount of

$3,581,957, which included the base period and the first three options. Five months later,

the VA exercised the fourth option in the amount of $563,345.

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During performance of the contract, a number of disputes arose between Vet4U and

the VA’s architect-engineering (AE) firm, Tolman Engineering, PLLC (Tolman). These

included the method of excavation, the time-line for review of submittals, suspensions of

work, and responsibility for certain additional engineering services. Contract modifications

addressed many of these issues; others are the subject of this appeal.

Vet4U completed the project in thirty-six months—one year earlier than the required

completion time, but twice as long as the time estimated in Vet4U’s bid, which was priced

according to an eighteen-month time-line. Vet4U maintains that it incurred significant

additional costs in performing the contract and that the VA wrongly awarded certain projectrelated work to other contractors. As a result, Vet4U submitted twenty-three claims to the

contracting officer (CO) seeking a combined total of $296,852.51, plus interest. The CO

denied the claims in their entirety, and Vet4U appealed to the Board.

Discussion

I. Jurisdiction and Standard of Review

The Board has jurisdiction over Vet4U’s timely appeal under the Contract Disputes

Act (CDA), 41 U.S.C. §§ 7101-7109 (2012). We review the appeal de novo, without any

presumption of correctness or deference given to the CO’s final decision (COFD). Wilner

v. United States, 24 F.3d 1397, 1402 (Fed. Cir. 1994).

In deciding a case on the record, we look to Board Rule 19 for guidance on the scope

of what we may consider as part of that record. At the time Vet4U requested a decision on

the record, our Rule permitted including “(1) [a]ny relevant documents or other tangible

things [they] wish[] the Board to admit into evidence; (2) [a]ffidavits, depositions, and other

discovery materials that set forth relevant evidence; and (3) [b]riefs or memorand[a] of law”

that explain each party’s positions and defenses. 48 CFR 6101.19(a) (2017).

Regardless of whether a contractor elects a hearing or a decision on the record, the

burden of proof is the same. Sylvan B. Orr v. Department of Agriculture, CBCA 5299, 17-1

BCA ¶ 36,863, at 179,613 (quoting Raimonde Drilling Corp., ENGBCA 5107, 86-3 BCA

¶ 19,282, at 97,488). “‘While [the Board] can make inferences from th[e] evidence and

either accept or deny the probative value of documents, statements or other extrinsic

evidence, in order for us to find for a party, that party’s evidence must establish,’ by a

preponderance of the evidence, ‘that it is entitled to relief.’” 1-A Construction & Fire, LLP

v. Department of Agriculture, CBCA 2693, 15-1 BCA ¶ 35,913, at 175,551 (quoting

Schoenfeld Associates, Inc., VABCA 2104, et al., 87-1 BCA ¶ 19,648, at 99,472). In

addition to proving entitlement, a contractor must also prove its losses “with sufficient

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certainty so that the determination of the amount of damages will be more than mere

speculation.” Douglas P. Fleming v. Department of Veterans Affairs, CBCA 3655, 16-1

BCA ¶ 36,509, at 177,876 (quoting Willems Industries, Inc. v. United States, 295 F.2d 822,

831 (Ct. C1. 1961)).

II. Findings of Fact and Conclusions of Law

Relocation of the Chemical Shed and Dumpster ($5330)

The VA contends that Vet4U is not entitled to any costs related to the permanent

relocation of a chemical shed and dumpster because the work was done for the benefit of

Vet4U’s subcontractor, and because it was not “requested or authorized by the [CO], or by

any other VA official.” We disagree. The contract required the parties to agree on

designated work space areas, material storage locations, and routes of access. A chemical

shed and dumpster had to be relocated to make room for a HAZMAT trailer. The shed and

dumpster were not shown on the drawings, were not relevant to the project, were too close

to the road, and unnecessarily crowded an already small workspace.

The contracting officer’s representative (COR) contacted the owner of the shed, and

asked it to move the shed before the sub-basement project began. The owner emptied the

contents of the shed but could not move it without a crane, but the crane rental was too

expensive. The COR emailed Vet4U and asked Vet4U to move the shed: “I need to discuss

a possible change order to relocate the [chemical] shed [from] the loading dock area to

behind [building] 16.” Vet4U replied by email and agreed to do it. The COR forwarded this

email exchange to the owner and copied Vet4U, stating that, in addition to moving the

chemical shed, Vet4U “will be moving the metal dumpster . . . further clearing out the area

for truck traffic to back into our loading docks.” The COR and owner then decided this

would be a permanent move for the shed because its current location was too close to the

road, as evidenced by the fact that the previous shed had been struck by a vehicle.

After receiving direction from the COR, Vet4U requested a cost estimate from one

of its subcontractors, Paragon. Paragon submitted a proposed cost estimate of $4330 to

relocate both items to another area of the hospital campus. The estimate included materials

for constructing a foundation for the shed at its new location.1 The COR coordinated the

move with the owner, the VA police, and Vet4U. Sometime in January 2014, Paragon

1

Moving the shed and dumpster were not in Paragon’s original scope of work.

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performed the move, which took place after regular business hours with multiple VA

officials present. Paragon rented a large crane for the sole purpose of moving the shed.

By the time the move took place, no change order had yet been executed. Email

messages and project meeting minutes showed the work as being included among a list of

items in a pending change order dated November 21, 2013, then removed from the list in

February and March 2014, only to be added back on June 19, 2014. After several months,

the VA ultimately refused to pay for the work. The record is not clear as to why. It only

references a statement by the COR that “the CO did not want to see any charge for this.”

Notably, the VA did not argue that the contract required this work as part of site preparation,

mobilization, or any other term of the contract. Long after the VA solicited the work,

coordinated it, watched it happen, and benefitted from it, the agency simply stated that the

work was not authorized by the CO.

We are not persuaded by the VA’s contention. The CO, COR, and project were all

located at the same VA facility, and the CO and COR communicated daily about the project.

The record contains email messages, project meeting minutes, a cost estimate, and references

to verbal exchanges about this particular work, none of which indicates that the work was

required by the contract. What the contract did call for, however, was a joint survey between

Vet4U, the COR, and a representative of the VA supply service to review anticipated routes

of access prior to the start of work and to note any discrepancies between the drawings and

the conditions at the site. If the contract was changed as a result of the survey, the

specification required a modification either under the Federal Acquisition Regulation (FAR)

Differing Site Conditions clause, 48 CFR 52.236-2 (2013) (FAR 52.236-2), or under the

Changes clause, FAR 52.243-4, and VA Acquisition Regulation (VAAR) 852.236-88.

The parties appeared to be following this procedure when the COR included the work

on a change order request to the CO.2 Although a formal change order never materialized,

we are not precluded from finding that the contract was constructively changed. “A

constructive change occurs when a contractor performs work beyond the contract

requirements, without a formal [change] order under the Changes clause, either due to an

informal order from, or through the fault of, the Government.” Nu-Way Concrete Co. v.

Department of Homeland Security, CBCA 1411, 11-1 BCA ¶ 34,636, at 170,696 (2010)

(citing Ets-Hokin Corp. v. United States, 420 F.2d 716, 720 (Ct. Cl. 1970), and Len Co. &

Associates v. United States, 385 F.2d 438, 443 (Ct. Cl. 1967)). The fact that the COR later

2

The VA preferred batching additional tasks into a single change order rather than

submitting piecemeal change requests to keep the work moving. For this reason, the

completion of work occasionally preceded the written change order authorizing it.

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relayed a message by the CO to the effect that “we do not want to see any charge for this,”

after directing Vet4U to perform work that was outside of the scope of the contract, does not

relieve the VA of its obligation to pay for the benefit it received. Here, we find sufficient

evidence of injury. The only issue is establishing the amount of Vet4U’s damages. The

record contains Paragon’s cost estimate in the amount of $4330, as well as Vet4U’s itemized

accounting records for the entire project. It also contains an affidavit stating that Vet4U paid

Paragon for this work, but that “some of the items contained in the Claim are combined in

pay applications . . . with other items and they cannot be easily identified [on the accounting

records].” Vet4U seeks a total of $5330 for this work. Because we have no evidence to

substantiate the additional $1000 added to Paragon’s cost of $4330, we find Paragon’s

estimate to be an accurate measure of Vet4U’s damages. We grant $4330 for relocating the

shed and dumpster.

Repair and Relocation of the Shaft 3 Unit Heater ($3770)

Vet4U seeks additional expenses related to repairing and relocating a unit heater in

Shaft 3—work which it claims was out of scope. We address the repair claim first and the

relocation claim second.

Two contract drawings showed a unit heater in the general vicinity of shaft 3 and

room CL55. General note 1 on drawing number PD-100 stated that the “contractor shall

remove all existing piping, conduit, raceway, valves, insulation, and equipment within

required vertical lift limits. For lift limits, refer to detail [2 of drawing number CI-504].”

Although section A-A of drawing CI-504 indicated a substantial clearance zone to

accommodate loading dock modifications and the installation of a vertical lift, the clearance

zone approached, but did not fully extend to, the location of the unit heater. The drawing,

however, described the marked area as a “minimum” clearance zone and referred interested

contractors to specification 14 55 00 (Vertical Reciprocating Conveyor) for additional

requirements since the section drawings only provided general layout information. That

specification, along with specification 13 50 00 (Loading Dock HVAC and Plumbing

Modifications), required the contractor to field verify and review existing conditions, and to

lay out “proposed HVAC, plumbing, fire [s]uppression, electrical, communication, and any

other system modifications required to provide adequate space and clearance for new

mechanical lift and loading dock access.”

Vet4U’s subcontractor, Eerie, verified that the unit heater was, in fact, in the way of

the new dock system, including the vertical lift. Eerie did not state that the heater needed to

be repaired, only relocated and re-piped. In a November 7, 2013, email, entitled “Change

Order Scopes,” Eerie stated only that “[t]he existing Unit Heater not shown to be removed

under the demo scope or to be relocated will be in the way of the new dock system. The

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heater may want to be relocated toward the rear wall and re-piped.” Vet4U’s claim described

it as “disconnecting all electrical to the space heater and relocating the electrical to the rear

wall.” Allied Electric proposed a cost of $1270 for the work. It, too, only referenced

relocating the heater, not repairing it. Further confusing the matter, Vet4U stated that the

heater was “dead” and that “it was in the way, so it was taken out.” Vet4U added that a VA

employee bought a new heater, but it was too small and likely still “sitting there.” In light

of these inconsistencies, Vet4U has failed to substantiate, by a preponderance of the

evidence, that the unit heater was repaired. Repair costs were correctly denied.

Costs incurred for relocating the heater were also correctly denied. Under the clear

terms of the contract, Vet4U was responsible for removing existing piping, conduit, raceway,

and equipment within the limits of the new vertical lift. It was also responsible for

relocating—at no expense to the VA—all utilities that conflicted with the new work. Finally,

“[u]nless otherwise indicated, the contractor [was] responsible for all demolition and removal

work required to complete new work or modify existing [conditions] whether shown on [the]

demolition plan or not.” Vet4U chose to use that area as an access way to the basement for

its equipment, so it demolished the heater wall.

We find that the contract unambiguously allocates the costs of removal work,

demolition work, and utility relocation work to the contractor. We further find that

corresponding specifications only contemplated an adjustment under the Changes clause for

“utilities and systems not shown on [the] drawings or locations of which are unknown.”

(emphasis added). The heater was depicted on the drawings, and since Vet4U demolished

the wall to make room for its equipment, it was required to relocate the heater and its

electrical supply at no cost to the VA. Accordingly, we deny the claim.

Emergency Repairs of Sprinkler Lines ($6200)

Vet4U submitted two separate claims for repairing broken sprinkler lines in the subbasement. The VA denied both claims, styled as additional work outside of the scope of the

contract, since they were not authorized by the CO. Based on evidence in the record, we

deny the first claim but find the second one compensable.

With regard to the first claim, Vet4U asserted that the sprinkler line froze and burst

after a VA employee turned off the fan and closed the door to shaft 3 which, when propped

open, allowed heat to access the area. Vet4U stated that while it did not cause the damage,

had it not repaired the line immediately, the water spilling into the sub-basement would have

delayed the project. Vet4U did not contact the VA prior to taking any action to repair the

line and did not provide any additional information about the alleged VA employee whose

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actions resulted in the damage. Vet4U asserted that the contract permitted emergency repairs

but failed to identify the relevant provision of the contract on which it now relies.

Regardless of who closed the door, the contract required Vet4U to repair—at no cost

to the VA—items that Vet4U damaged through its own actions or negligence. The contract

required Vet4U to maintain a minimum temperature of forty degrees at all times in storage

areas and in operational areas. We find that Vet4U failed to comply with this requirement,

and, as a result, a sprinkler line froze, cracked, and began leaking water into the subbasement. Vet4U’s uncorroborated assertion that a VA employee was at fault is insufficient

to absolve or waive its obligations under the contract. “A claim against the Government may

not be allowed merely because it has been alleged.” Jen-Beck Associates, VABCA 2107, et

al., 87-2 BCA ¶ 19,831, at 100,322 (quoting J.C. Edwards Contracting & Engineering, Inc.,

VABCA 1947, et al., 85-2 BCA ¶ 18,068, at 90,690). The “essential burden of establishing

the fundamental facts of liability, causation and resultant injury” remains with the contractor.

Wunderlich Contracting Co. v. United States, 351 F.2d 956, 968 (Ct. Cl. 1965). Vet4U has

failed to establish entitlement to the costs of repairing the broken sprinkler line. We deny the

first sprinkler claim.

With regard to the second claim, Vet4U discovered “a six-inch sprinkler line that

[was] just dumping water” into room CL55, exposing the work area and excavation

equipment to the water. Vet4U claimed that it immediately notified either the COR or

another VA representative. At some point, the representative told Vet4U that he had been

waiting for Davis Ulmer (a commercial company) to return his call. There is no evidence

that anyone contacted the CO. Due to the urgency of the situation, Vet4U contacted Davis

Ulmer directly. An hour later, Davis Ulmer arrived and found that the sprinkler pipe had

rotted. Davis Ulmer replaced it and invoiced Vet4U $2250 for the work, which Vet4U paid.

In her final decision, the CO disputed that the VA had received notice and found that

“Vet4U undertook to repair the line without any authorization by the VA” and that “[t]he

repair was not requested or authorized by the [CO].” Since the invoice referred to the

condition of the pipe as “rotted,” we find that Vet4U did not cause the damage. Therefore,

Vet4U was not liable for the repair costs. The contract had no provisions for emergency

repairs; nevertheless, an urgent repair was necessary to minimize the impact of the rotted

sprinkler line.

In these emergency circumstances here, Vet4U’s notice to the VA was adequate to

meet any contract requirement regarding notice. “If a contract clause requires a contractor

to notify the Government within a specified period of time of . . . a differing site condition,

lack of . . . notice,” or lack of notice to the individual named in the contract, “does not

automatically bar the contractor’s recovery unless the Government can establish that it was

CBCA 5387

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prejudiced by the lack of notice.” Ahtna Environmental, Inc. v. Department of

Transportation, CBCA 5456, 17-1 BCA ¶ 36,600, at 178,304 (2016) (citing Singleton

Contracting Corp., IBCA 1413-12-80, 81-2 BCA ¶ 16,269, at 75,607; Mutual Construction

Co., DOT CAB 1075, 80-2 BCA ¶ 14,630, at 72,156-57; and DeMauro Construction Corp.,

ASBCA 17029, 77-1 BCA ¶ 12,511, at 60,650)). “[N]otice may be waived in instances in

which the Government suffers no prejudice, i.e., no other course could or would have been

taken under the circumstances.” Fru-Con Construction Corp. v. United States, 43 Fed. Cl.

306, 325 (1999), aff’d, 250 F.2d 762 (Fed. Cir. 2000) (per curiam).

Here, the VA has not identified what the CO would or could have done differently had

he personally been notified of the broken pipe. Had Vet4U waited for full consent and

guidance from the CO before repairing it, more damage to the sub-basement would have

occurred. In fact, the VA’s own representative, like Vet4U, contacted Davis Ulmer to

address the emergency, indicating that the VA’s recovery plan was exactly what Vet4U

implemented. Davis Ulmer repaired the line, and Vet4U paid for it. The CO presented no

evidence of prejudice, and we find none under the circumstances. We grant $2250 for the

second sprinkler claim.

Demolition of the Condensate Electrical Box and Reinstallation of the Computer

Room Junction Box ($2252)

Both the condensate electrical box and the computer room junction box were located

on a wall that Vet4U demolished in order to access the sub-basement with its equipment.

Vet4U argues that because this approach was approved by the VA as part of Vet4U’s “means

and methods” to perform the work, it should be reimbursed for removing, relocating, and

rerouting the associated electrical equipment. We disagree. As with the unit heater, these

items were not shown on the drawings as intended for demolition, and even if they were, the

contract made Vet4U responsible for any necessary demolition whether shown on the

drawings or not. Furthermore, the contract scope required Vet4U to construct an access way

from room CL55 into “selected areas of the Sub-Basement from which mechanized

equipment and personnel [could] enter the Sub-Basement Crawlspace to conduct the

remediation project.” The fact that Vet4U had to relocate the electrical equipment in order

to perform according to its desired means and methods is unavailing. Under the contract,

the removal and relocation of electrical items to accommodate new work was the

responsibility of the contractor and therefore, not compensable. We deny both claims.

Temporary Electrical Connection ($7081.67)

Vet4U seeks reimbursement for all work associated with its installation of temporary

electrical connections and associated equipment. Its argument is twofold. First, Vet4U

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argues that, during a site visit, the VA identified certain electrical outlets that Vet4U could

use to power the excavation equipment, which, as it turned out, were grossly insufficient.

Vet4U had to hire an electrical subcontractor to install temporary electrical connections in

room CL55, resulting in unanticipated additional costs. Second, Vet4U points to a “Site Visit

Report,” drafted by Tolman, that identified and commented on certain project-related topics.

Item number twelve stated, “[The] VA will supply electric for the Contractor.”

We disagree with Vet4U’s interpretations of these statements because neither one

fully represents the parties’ obligations under the contract. The relevant specification and

FAR Clause, both entitled “Availability and Use of Utility Services,” stated:

(A) The Government shall make all reasonably required amounts of utilities

available to the Contractor from existing outlets and supplies, as specified in

the contract. The amount to be paid by the Contractor for chargeable electrical

services shall be the prevailing rates charged to the Government.

(B) The Contractor, at [its own] expense . . . shall install and maintain all

necessary temporary connections and distribution lines, and all meters required

to measure the amount of [each utility] used for the purpose of determining

charges. Before final acceptance of the work by the Government, the

Contractor shall remove all the temporary connections, distribution lines,

meters, and associated paraphernalia.

The specification contained additional relevant guidance in paragraph C: “Contractor

shall install meters at contractor’s expense and furnish the Medical Center a monthly record

of the Contractor’s usage of electricity as hereinafter specified.” It also instructed bidders

to “[o]btain electricity by connecting to the Medical Center electrical distribution system,”

and further that the “Contractor shall meter and pay for electricity required for electric cranes

and hoisting devices, electrical welding devices and any electrical heating devices providing

temporary heat. Electricity for all other uses is available at no cost to the Contractor.”

According to these provisions, electricity required to power excavation equipment was

covered by the VA if obtained from existing outlets and supplies. Costs associated with the

installation of temporary connections and meters, however, were the responsibility of the

contractor. During the solicitation process, and after the site visit, a bidder asked, “If the

excavation contractor uses electric excavation equipment will the VA allow connection to

their system? Will the VA pay for the electricity?” The VA referred bidders to specification

for electricity and stated “[C]ontractors can connect to the VA system, but must meter and

pay for the electricity.” The VA referred to the correct specification but conflated its

provisions, rendering any reliance on the statement to be misplaced.

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Vet4U further asserted that “although the specifications indicated that the contractor

was responsible for paying for temporary electric, this was removed from the specifications

by Robert Lee, the Contract[ing] Officer.” Vet4U provided no evidence that this

specification was removed or modified in a way that shifted the burden of these costs to the

VA. The only issue here is whether the VA’s representations during a site visit—that the two

panel boxes within CL55 could be used to connect the excavation equipment—justify

payment of additional costs to Vet4U because it turned out that those outlets were not

sufficient to power the equipment. We find it does not.

The referenced site visit occurred on October 28, 2014, after contract award.

Discussions during that meeting cannot be used as a basis for payment, as there were no prebid representations regarding available power that would give rise to a differing site

condition, and no contract terms warranting a subsequent change order. Neither the VA’s

response during the solicitation process, nor its statements during the site visit, supersede the

clear terms of the contract, which did not cover the cost to install temporary connections or

meters. Future Forest, LLC v. Department of Agriculture, CBCA 5764, 19-1 BCA ¶ 37,238,

at 181,268 (2018) (citing Jane Mobley Associates, Inc. v. General Services Administration,

CBCA 2978, 16-1 BCA ¶ 36,285, at 176,955). We deny Vet4U’s claim for the costs to

install temporary electrical connections.

Relocation of Plumbing Vent, Uninsulated Supply Line, Condensate Valve ($8200)

Vet4U asserted that these items were not shown on the drawings and, therefore,

constituted additional work. Because Vet4U either misinterpreted the contract or failed to

read it thoroughly, it misunderstood the scope of its obligations. Contract interpretation

begins with a review of the contract’s plain language. LAI Services, Inc. v. Gates, 573 F.3d

1306, 1314 (Fed. Cir. 2009). The purpose of contract interpretation is to determine the intent

of the parties at the time the agreement was made. Systems Management & Research

Technologies Corp. v. Department of Energy, CBCA 4068, 16-1 BCA ¶ 36,333, at 177,129.

We have already addressed the parties’ obligations related to the relocation of utilities

and decided that the contract’s unambiguous terms made the relocation of utilities the

responsibility of the contractor. Vet4U presents no new arguments here. Merely stating that

“the plumbing vent line required movement but was not identified on the drawings” ignores

critical information in the drawing notes. The contract must be read as a whole in order to

give reasonable meaning to all of its parts. Gould, Inc. v. United States, 935 F.2d 1271, 1274

(Fed. Cir. 1991). The plan notes, general notes, and section drawings all reference steam

vent lines and piping that required rerouting, such as “Provide rerouted steam vent and

appurtenances.” “Steam vent piping shall be relocated as shown.” “Contractor shall relocate

existing piping, conduit, raceway, valves, insulation, and equipment, and appurtenances, and

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restore service, unless otherwise noted.” “Piping work shall coordinate with loading dock

modifications and installation of new vertical lift.” We see no reason to deviate from the

contract’s clear terms, which made the relocation of these items the contractor’s

responsibility, without expense to the VA. Accordingly, we deny the claims.

Garbage Removal in CL55 and Sub-Basement; Cleaning of Room CL55 ($7753)

Vet4U requested reimbursement for expenses related to garbage removal and general

cleaning within the project site, contending that such activities were the responsibility of the

VA. Given the various contract terms that required the contractor to perform these tasks,

Vet4U’s position is untenable. General note 29 of drawing number GI-002 stated: “Various

types of debris were observed throughout the crawl space, including metal parts, masonry,

stone and miscellaneous construction materials. Unless otherwise directed, contractor shall

remove and dispose of debris.” Note 21 stated: “All requirements described within the

general notes section and contract documents, unless otherwise indicated, shall be considered

incidental to the project with no associated pay item and no additional compensation to be

awarded to the contractor.”

In addition to the drawing notes, the specification for earthwork instructed Vet4U to

clear and remove, within the limits of earthwork operations, “incidental structures, debris,

trash, and any other obstructions.” It also cautioned: “Do not fill or backfill [excavated

areas] until all debris, unsatisfactory soil materials, obstructions, and deleterious materials

have been removed from the excavation.” Two other sections of that specification left no

doubt that trash removal and clean-up were included in the contractor’s scope of work.

“Remove surplus satisfactory soil and waste material, including unsatisfactory soil, trash and

debris, and legally dispose of it off Medical Center property.” And, “[u]pon completion of

earthwork operations, clean areas within contract limits, remove tools and equipment.

Provide site clear, clean, free of debris, and suitable for subsequent construction operations.

Remove debris, rubbish, and excess material from the Medical Center.” Based on the

contract’s clear terms, we deny these claims.

Temporary Enclosure—Morgue Entrance and Stairs ($5218)

Vet4U constructed a temporary enclosure around the morgue entrance and stairwell

to accommodate excavation activities in the area. Shortly after building the enclosure, Vet4U

was instructed to remove it and rebuild it because Vet4U had failed to use fire retardant wood

as required. Vet4U removed the enclosure but did not rebuild it because it found a different

solution for performing the relevant task. Vet4U now seeks costs related to the construction

and removal of the enclosure, on the basis that “[it] was discussed with the project COR who

approved the original enclosure,” and because Vet4U was directed “to remove it and to use

CBCA 5387

13

fire retardant lumber in its place.” Vet4U’s reasoning is misguided. Neither the cost of

constructing nor dismantling the partition was the responsibility of the VA. Under the

contract, note 26 on drawing number GI-002 gave the contractor the discretion to determine

its own construction means, methods, and techniques to accomplish the work. The temporary

enclosure was a technical decision consistent with that discretion, and the COR’s approval

of that plan did not shift the cost risks to the VA. Vet4U understood these obligations as

evidenced by Mr. DiMauro’s deposition statement in which he recalled his conversation with

the COR: “We’ll build the enclosure. My dime.”

Once Vet4U decided to build the partition, it was required to comply with the

specified fire safety requirements in the contract, namely that temporary construction

partitions had to be built “with gypsum board or treated plywood (flame spreading rate of 25

or less in accordance with ASTM E84) on both sides of fire retardant treated wood or metal

steel studs.” Vet4U used non-compliant wood, and as a consequence, was directed to remove

and replace it. For these reasons, we deny the claim.

Unreimbursed Engineering Costs ($30,156.27)

The VA’s AE contract with Tolman required that Tolman produce a 100% design for

this project, which Tolman did, and which the VA used to solicit proposals from interested

construction contractors. Notwithstanding that fact, Vet4U’s contract contained multiple

provisions requiring it to provide independent engineering services. Vet4U argues that the

engineering requirements were removed from the contract, but in order to keep the project

on track, it paid for design work that Tolman should have accomplished. Under two separate

contract modifications, the VA reimbursed Vet4U for many of its engineering costs, but not

for all of them. This claim represents Vet4U’s unreimbursed engineering costs.

To interpret the contract, we start by examining its plain language. Mare Solutions,

Inc. v. Department of Veterans Affairs, CBCA 5540, et al., 18-1 BCA ¶ 37,048, at 180,349

(citing LAI Services, Inc., 573 F.3d at 1314). Under the heading “Professional Surveying

Services,” the contract stated:

A registered professional land surveyor or registered civil engineer whose

services are retained and paid for by the Contractor shall perform services

specified herein and in other specification sections. The Contractor shall

certify that the land surveyor or civil engineer is not one who is a regular

employee of the Contractor and that the land surveyor or civil engineer has no

financial interest in this contract.

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More than a dozen specifications in the contract required Vet4U to provide these

services, including performing concrete design work, providing structural calculations for

steel framing, preparing detailed working drawings for fire suppression requirements,

creating a rigging plan for plumbing and HVAC work, computing quantities of material for

excavation, inspecting work, and certifying its compliance with specifications. No questions

were asked about this during the solicitation process, and Vet4U—ultimately the only bidder

on the project—did not include engineering services in its bid proposal. Mr. DiMauro

explained in his declaration that it would be very unusual to require the construction

contractor to provide such services:

[I]n my many years of working in the construction industry, while a general

contractor may from time to time use a professional surveyor, it would be very

out of the ordinary for a general contractor, unless it was for a design-build

agreement (which the Project was not), to have to provide structural

engineering services to the owner (or to itself for the benefit of the owner),

when the owner already had its own structural engineer. Also . . . there was

absolutely no line item or even any reference to any professional surveying or

professional engineering services in [our] technical proposal or cost proposal

for the Project because, due to our approach we would not require [a surveyor

or engineer].

Even if the requirements here are unusual, which we need not decide, Vet4U is bound

by the language of its contract with the VA. That language required Vet4U to provide such

services. Vet4U has not presented any evidence of industry trade usage or custom that would

allow us to interpret the contract language in a way that would excuse Vet4U from that

obligation. See A-Son’s Construction, Inc. v. Department of Housing & Urban Development,

CBCA 3491, 15-1 BCA ¶ 36,089, at 176,209 (discussing how trade usage may be applied in

interpreting contract language).

Vet4U argued that the requirement was deleted from the contract and offered as proof

a copy of the specification, which was crossed out and accompanied by the following handwritten statement: “VA chose not to require this.” The statement was initialed. The first two

letters of the initials are “R” and “E.” The third initial is unclear, but looks like the letter

“Q.” The CO’s initials are R.E.L. The COR’s initials are R.E.D. The requirement was also

crossed out and initialed on drawing number SI-100, “Access Way Structural Plan.” Vet4U

referred to these exhibits as “[o]utline of Project Number 528A7-12-736 with COR’s

handwritten notes,” and “[a]bbreviations chart with COR’s handwritten notes.”

“To demonstrate entitlement to an equitable adjustment, [a contractor] must prove that

the contract was modified by someone with actual authority” to have made binding

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modifications. Nu-way Concrete Co., 11-1 BCA at 170,697 (quoting Winter v. Cath-dr/Balti

Joint Venture, 497 F.3d 1339, 1344 (Fed. Cir. 2007)). Vet4U has alleged that the COR, who

passed away during the project, made the handwritten modifications. Even if true, the COR’s

delegation of authority letter from the CO, signed by the COR and Vet4U, proscribed any

changes to the contract without written authorization by the CO. The record contains no

evidence of either. To the contrary, in his deposition, the CO stated that engineering services

were part of the contract and that he never authorized removal of this requirement. There is

no basis for us to find that any of the handwritten changes were authorized by the CO.

We recognize that the CO issued several funded contract modifications for

engineering services. He explained, “It was obvious to me that we weren’t going to get

anywhere unless I put some seed money on [the contract] to get them over the hump.” “I

told [Vet4U], I’m going to put some money on this contract, best interests of the

government, to prime your engine and get you started so that you can get these things

stamped.” When asked whether it was odd that Vet4U did not include engineering services

in its bid proposal, the CO responded: “I wouldn’t have called for that. There was a specific

format of line items I wanted to see for specific elements of cost . . . I don’t think that was

one of them. I’m almost positive I wouldn’t have put that in.” Nevertheless, the CO’s

actions do not establish that the CO agreed to pay for engineering services not covered by

contract modifications.

Further, even if we were to find that the VA’s conduct established a precedent for

paying Vet4U’s engineering costs, we agree with the CO that Vet4U failed to substantiate

the additional engineering costs presented in its appeal. Bare statements of incurred costs,

without detailed explanations as to how these costs related to the project, are insufficient to

sustain these claims, and invoices marked “paid” do not remedy that deficiency, especially

because funded modifications, issued close in time to the invoices, raise concerns about

potential duplicate payments. To the extent that the structure of this contract may have been

atypical in that it was a construction contract with engineering requirements, Vet4U

nonetheless bid on it without inquiring about the requirements or factoring them into its

fixed-price proposal. “The essence of a firm fixed-price contract is that the contractor, not

the government, assumes the risk of unexpected costs.” Lakeshore Engineering Services,

Inc. v. United States, 748 F.3d 1341, 1347 (Fed. Cir. 2014).

The CO’s decision to fund some structural engineering costs was reasonable in light

of Tolman’s staffing limitations and a lack of progress on certain submittals. That decision

does not automatically obligate the VA to fund other engineering costs. The contract

required Vet4U to hire its own engineer, at its own expense, for various contract-related

tasks. Reviewing its excavation plan was one of those tasks. We will not find the VA liable

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for costs for which the contractor was responsible by contract when there is no evidence of

waiver. Vet4U’s claim for additional engineering costs is denied.

Stop Work Order ($15,824)

Vet4U seeks compensation for costs associated with a two-day suspension of

excavation work issued by the CO on or about March 12, 2014. After Vet4U cut an entryway

into a shaft wall to get excavation equipment into the sub-basement, Tolman raised concerns

about safety because Vet4U did not yet have an approved “Access Way Installation

Sequence.” Tolman communicated its concern to the COR and CO by email on Tuesday,

March 11, 2014, and copied Vet4U. The CO replied thirty minutes later to Tolman, with a

copy to Vet4U and the COR, concurring with Tolman’s request that work not proceed until

Vet4U had an approved Access Way Installation Sequence.

We find that Vet4U cannot recover on this claim. The CO stopped the excavation

work because Vet4U lacked an approved submittal, which was required before proceeding

with excavation. Vet4U did not deny it lacked such approval, nor did it offer any explanation

for proceeding without approval. Contractors cannot recover for delays caused by the

contractor’s lack of an approved submittal. Tidewater Contractors, Inc. v. Department of

Transportation, CBCA 50, 07-1 BCA ¶ 33,525, at 166,103-04. We deny the claim.

Installation of Sprinkler Heads and Hose Bibs ($3957)

The contract required the VA to provide designated storage space to the contractor.

“Working space and space available for storing materials shall be as shown on the drawings

AND/OR as determined by the COR.” The drawings showed that “[t]he construction staging

area shall be located adjacent to Building #1” and instructed the contractor to “[p]rovide

desired size to VAMC and coordinate with the COR to determine final location.” In the

event the contractor chose to store materials inside the medical center, the contract stated:

“[S]torage of Contractor’s materials and equipment [in vacated portions of medical center

buildings] will be permitted subject to fire and safety requirements.” Any construction

required for storing materials was to be at the contractor’s expense. This included temporary

buildings and utilities.

To comply with fire safety requirements, Vet4U installed sprinkler heads over its

lumber and requests reimbursement of those costs. These costs are not compensable. Vet4U

made a strategic business decision to store the lumber in the sub-basement. It had other

options for storage that would not have required the additional sprinkler heads.

Miscalculated business decisions do not shield a contractor from liability or void a contract’s

clear terms. Vet4U was responsible for this work at no cost to the VA.

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During performance, Vet4U “found that additional hose bibs were needed to be

installed . . . to handle water required for various scopes of the project including but not

limited to dust control, concrete placement and cleaning of tools.” Vet4U essentially argues

that because water was free under the contract, any additional hose bibs needed to distribute

that water should have been free also. We disagree. The contract explicitly stated:

The Government shall make all reasonably required amounts of utilities

available to the Contractor from existing outlets and supplies, as specified in

the contract . . . The Contractor, at Contractor’s expense and in a workmanlike

manner satisfactory to the Contracting Officer, shall install and maintain all

necessary temporary connections and distribution lines.

With regard to water specifically, the VA had to make water available for use on the

project “at no cost to the contractor.” That did not mean that the VA had to provide or pay

for equipment needed to access the water. In fact, the contract specifically instructed Vet4U

to do the following: “Furnish temporary water service. Obtain water by connecting to the

Medical Center water distribution system. Provide [a] reduced pressure backflow preventer

at each connection,” and “[M]aintain connections, pipe[s], fittings and fixtures.” Water was

free, but any connections or equipment necessary to access and use the water was at

contractor expense, including the installation of hose bibs. We deny the claim.

Delay in Rock Removal ($68,927.60)

The contract solicitation identified a soil report from 1949 that indicated rock

formations. When asked about the required quantity of rock removal, the VA informed

potential offerors that rock removal “would be adjudicated” as a differing site condition.

Initially, the CO instructed Vet4U to remove the rock and submit costs in $25,000

increments. This process became tedious due to the amount of rock, so in mid-September

2014, the CO asked Vet4U for a cost estimate for removing all rock in all zones, to be paid

under one modification. Vet4U submitted the requested information on October 15, 2014,

and informed the CO that its excavation subcontractor would seek work on other projects if

the modification and funding were not received by the end of October.

The VA’s funding for excavation ran out on October 31, 2014. The new modification

had not yet been approved, so excavation stopped. Multiple email messages in the record

show that work on the project came to a standstill due to a lack of progress on the

modification. After several months passed without advancing the modification, the CO told

the COR: “I think we need to consider going back to the ‘as it occurs’ differing site condition

formula. It is very difficult to get such a large number ($200K) approved as a modification.”

When the CO retired in December, he had not executed a modification for the excavation,

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nor had he returned to the “as it occurs” formula. As evidenced by project meeting minutes

from December 17, 2014, the only work being addressed at that time was related to concrete

testing, the electric lighting plan, a government estimate for rock and asbestos removal, strut

encasement, and the repair of column N-15. All but the last two items required action by the

VA to proceed, and the last two items were not part of Vet4U’s scope of work.

A new CO was in place in January 2015. Although she was included in prior email

messages and discussions, she decided to start the process over again by issuing a single RFP

for additional rock and asbestos removal. Vet4U resubmitted its proposal shortly thereafter.

Since the new CO followed a slightly different process than her predecessor, the parties

conducted a number of back-and-forth discussions and negotiations to finalize the

modification request. In an email dated February 3, 2015, the CO stated “we have the funds

locally but because Congress put a cap on it, we have to wait for higher approval.” Vet4U

resumed excavation activities on February 9, 2015. The modification, in the amount of

$179,314, was finalized on March 14, 2015. Vet4U did not agree to the release on the

modification. Instead, it lined through it and handwrote that it reserved all rights.

Vet4U now seeks delay costs for general conditions at the weekly rate of $4923.40

for fourteen weeks. General conditions costs include expenses for project managers,

supervisors, and clerical assistants; temporary offices and utilities and supplies for those

offices; and other miscellaneous expenses necessary for on-site management of a

construction project. Turner Construction Co. v. Smithsonian Institution, CBCA 2862, et al.,

17-1 BCA ¶ 36,739, at 179,077. To recover these costs, Vet4U has to show that work was

suspended waiting on direction from the CO. U.A. Anderson Construction Co., ASBCA

48087, 99-1 BCA ¶ 30,347, at 150,083. It also has to show that the suspension period was

unreasonable, that the Government directly caused the delay, and that the delay injured the

contractor in the form of additional expense or loss. Tidewater Contractors, Inc., 07-1 BCA,

at 166,102-03.

We find that the record supports recovery of Vet4U’s expenses arising from a

Government-caused suspension. The contract contained the Suspension of Work clause,

FAR 52.242-14, and although a formal suspension notice was never issued by the CO, all

work activities were in a holding pattern awaiting VA action, including funding, government

cost estimates, a revised electrical plan, and the award of a concrete contract. This caused

performance to reach a standstill for nine weeks rather than the fourteen weeks that Vet4U

claims. We find this suspension to be unreasonable, especially since Vet4U continued to

incur costs during that time in the form of general conditions expenses. Vet4U’s general

conditions rate of $4923, however, is not supported by the record. In its original cost

proposal, Vet4U indicated a general conditions rate of $3969, which we find reasonable.

Accordingly, we grant $35,721 for this claim.

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CHP Gas Line Project ($3751)

On March 23, 2015, Vet4U notified the COR that work on a gas line project was

interfering with Vet4U’s performance. Vet4U explained that another contractor built a

scaffolding at the entryway to the sub-basement where Vet4U was working. The other

contractor’s welder was also working in that area, without a welding curtain, fire watch, or

fire extinguisher. The COR for the other project was not on site because he was home sick

but instructed the welding contractor to proceed despite the lack of on-site supervision.

Vet4U attempted to coordinate its own work with the other contractor, as well as with

the COR for the other project, but the situation did not improve. The other contractor’s work

impeded access to the sub-basement entrance. As a result, Vet4U was forced to wait, with

laborers and equipment sitting idle. In its claim, Vet4U described the impact as follows:

“Four laborers at $50.01 an hour . . . [and] I had four operators standing around doing

nothing . . . we couldn’t take our stuff out [be]cause they were right in our aisle way . . . with

their scaffold and their sparks flying all over the place.” Vet4U calculated its damages by

taking the hourly pay rates of four laborers and four operators, multiplying that times thirtytwo (the number of hours worked by each over four days), and then reducing the productivity

of these workers by twenty-five percent.

In her final decision, the CO did not contest the underlying facts of Vet4U’s claim.

Nevertheless, she found that the terms of the contract required Vet4U to cooperate with other

contractors and adapt its scheduling and performance to accommodate them. She referenced

FAR clause 52.236-8, entitled “Other Contracts,” which prohibited interference with another

contractor’s performance. In addition to denying the claim, the CO stated that there was

insufficient information to support it.

Based upon the information in the record, we find that Vet4U complied with its duty

to accommodate the other contract and gave the VA timely notice of the interference. We

also find that in fully cooperating and accommodating the other contractor, Vet4U was

unable to fully prosecute its own work for several days. The other contractor was also under

the control of the VA, yet the VA failed to secure its cooperation, which impeded Vet4U’s

performance. The Board has previously found that when a contractor’s performance depends

upon the agency’s cooperation, the agency is necessarily required to provide the same or be

found liable for the increased costs of performance. CAE USA, Inc. v. Department of

Homeland Security, CBCA 4776, 16-1 BCA ¶ 36,377, at 177,350.

Having established entitlement to costs, we turn to Vet4U’s evidence of its damages.

The record contains a photocopy of a handwritten calculation for “CHP Interference Effect,”

which multiplied the number of laborers Vet4U had onsite by their respective labor rates for

CBCA 5387

20

four days at a twenty-five percent reduced rate of efficiency, arriving at a total cost of $3751.

Although actual cost information is preferred, a contractor’s burden of proof for its damages

need not be perfect. All that is required is a reasonable showing of the extra costs.

BCPeabody Construction Services, Inc. v. Department of Veterans Affairs, CBCA 5410, 18-1

BCA ¶ 37,013, at 180,258 (citing Dawco Construction, Inc. v. United States, 18 Cl. Ct. 682,

698 (1989), aff’d in relevant part, 930 F.2d 872 (Fed. Cir. 1991)). We find that the record

sufficiently supports Vet4U’s estimate. See United Facilities Services Corporation dba

Eastco Building Services v. General Services Administration, CBCA 5272, 18-1 BCA ¶

37,086, at 180,553 (“The Board has considerable discretion in determining the extent to

which the a contractor has supported, or is justifiably unable to support, its cost claim with

direct cost data”). Accordingly, we grant $3751 for this claim.

Lost Work—Strut Repairs and Electrical Differing Site Conditions ($65,871)

The contract directed Vet4U to “[i]nstall typical strut encasements, where applicable.”

After performing excavation work in the sub-basement, Vet4U observed that some of the

struts were in poor condition and needed to be repaired before encasing them. Believing that

the repair work was part of its contract, Vet4U submitted a request for information (RFI) on

May 5, 2014, to the COR and Tolman, stating:

Drawing S-501 [sic] detail 2 indicates a strut repair. Upon our structural

engineer’s visual inspection of struts . . . it was found no repairs were required

on the bottom of these struts but each does require a repair on the top. Based

on this inspection, I have requested that our engineer provide a repair detail

that is being submitted to you under Submittal #0047 included with this RFI

for your review and approval.

In its response to the RFI, dated June 19, 2014, Tolman stated, “The Typical Strut

Encasement Detail 2 (drawing S-101) is not a repair detail. The strut encasement is required

for structural purposes and should be installed per the design drawings (in addition to any

strut repair requirements discovered during construction).” After reviewing the engineered

proposal for the strut repair, Tolman stated:

With respect to the condition of the top/bottom of the struts, we have reviewed

your proposed Typical Beam Repair Detail . . . and find it acceptable with the

following notes: The strut top is acceptable per the submittal and should be

undertaken per [your engineer’s] Detail/Specification. The strut bottom repair

detail concept is also acceptable, however, the repair detail should be

incorporated into the typical strut encasement detail 2 (S-101). . . . Provide a

design sketch for each strut repair location, including dimensions of concrete

CBCA 5387

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removed, actual bars installed, etc. This can be provided at the completion of

the repairs for the project as-built records.

The CO ultimately determined that the strut repair work was out of scope and could

be performed at a later date. In its claim to the CO, Vet4U asked “why it was directed to

have its engineer provide a repair detail if it was not part of our scope of work.” We do not

agree that Vet4U was directed by the VA to provide a repair detail. On the contrary, the

record shows that Vet4U initiated this process based on its mistaken belief that the strut

repairs were in scope. Under the contract’s changes clause, the CO was authorized to make

changes to the work as long as the changes were within the general scope of the contract.

FAR 52.243-4. Here, the CO decided the strut repairs were out of scope. She explained:

The repair of any struts would not be a within scope change as this would

change the intent of the original contract and could cause an unfair advantage.

This type of change could not be anticipated at the time of the original contract

nor does it affect the existing contract. . . . Furthermore, when and if the work

is required it will be posted on the electronic website required by the FAR and

Vet4U would have an opportunity to submit [a] proposal or bid.

Although Vet4U complained that it necessarily incurred costs in preparing drawings

and an action plan to deal with the degraded struts, the only monetary request that it makes

is for “lost work” that the CO decided not to award to Vet4U. For the strut repairs, Vet4U

presented its claim for damages as follows: “Potential lost business to Vet4U – $300,000

estimated if work is approved as it originally was by the VA. Effect on Vet4U is $60,000.”

To prove a claim for lost profits, which is what Vet4U is essentially seeking here, Vet4U

must establish the following three elements:

1) the loss was the proximate result of the breach; 2) the loss of profits caused

by the breach was within the contemplation of the parties because [it] was

foreseeable or because the defaulting party had knowledge of special

circumstances at the time of contracting; and 3) a sufficient basis exists for

estimating the amount of lost profits with reasonable certainty.

Energy Capital Corp. v. United States, 302 F.3d 1314, 1325 (Fed. Cir. 2002).

With regard to the strut repairs, Vet4U has not shown that the CO breached any

contract by not awarding the strut repair work to Vet4U. Contrary to Vet4U’s suggestion,

nothing in the contract required such work or required the CO to have Vet4U perform it.

Furthermore, Tolman’s approval of Vet4U’s engineering proposal and its statement that the

CBCA 5387

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repair work “should be undertaken” do not constitute CO approval of the work and could not

reasonably be interpreted as direction from the CO to perform the strut repairs.

To the extent that Vet4U seeks to recover costs for its work on the strut repair plan,

the general rule is that contractors may not recover the costs of preparing change proposals

that are not later adopted. Blake Construction Co., VABCA 1725, 83-1 BCA ¶ 16,431, at

81,739. The rationale for denying compensation is that activities related to preparing change

proposals are not considered extra work under the contract. Rather, they are motivated by

profit, and as such, are voluntarily undertaken. Id. (citing Century Industries Corp., ASBCA

3774, et al., 58-2 BCA ¶ 1933). Boards have also denied their recovery under the cost

principles since bid and proposal costs are considered indirect overhead costs. Campos

Construction Co., VABCA 3019, 90-3 BCA ¶ 23,108, at 116,012; Acme Missiles &

Construction Corp., ASBCA 11786, 69-2 BCA ¶ 8057, at 37,455.

One exception to this rule is when a contractor expends substantial resources in

preparing a complex change proposal at the CO’s direction. This is particularly true with

engineering change proposals (ECPs). In this case, though, the CO did not request the

change proposal from Vet4U, so Vet4U is not entitled to recoup its costs, despite the

complexity. Bechtel National, Inc., ASBCA 51589, 02-1 BCA ¶ 31,673, at 156,529, aff’d,

65 F. App’x. 277 (Fed. Cir. 2002). Another exception is where the CO did not order the

proposal but paid the contractor’s preparation costs because the VA retained and later used

the information in the ECP. Campos Construction Co., 90-3 BCA, at 116,014. Here, we

have no evidence that the VA utilized Vet4U’s strut repair plan in a subsequent solicitation.

Also, Vet4U has provided no quantification of, or support for, costs incurred for that work,

precluding any recovery for it. See Bob L. Walker v. Department of Agriculture, CBCA

2131, 18-1 BCA ¶ 36,921, at 179,878 (2017). Accordingly, we deny the strut repair claim.

With regard to the claim for lost electrical work, the contract required Vet4U to

perform electrical work in accordance with the specifications and drawings. In August 2014,

the VA determined that the electrical design plan, which included installing new lights, new

grounding, and upgraded switching, would not meet the VA’s needs. The CO requested a

change proposal and cost estimate for the additional work, and Vet4U produced a revised

plan to satisfy the VA’s changed electrical requirements. Shortly thereafter, the COR

emailed Vet4U, the CO and others, stating that the change proposal for the electrical work

could not be adopted and executed in a change order because doing so would cause the VA

to exceed its limit on project modifications and funding. “I will . . . identify what work has

already been completed within the existing contract and submit the remaining items . . . in

a construction IDIQ contract request.” The COR also stated that he would produce a cost

estimate and statement of work in order to de-scope what remains in the existing contract.

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23

Vet4U’s monetary claim was for lost electrical work. It valued that work at $29,357

with an “effect on Vet4U of $5871.40.” As we discussed, to sustain a claim for lost profits,

we must find that the VA breached the contract, which we do not. On the contrary, the CO

was acting well within his authority when he de-scoped the unsuitable electrical work and

compensated Vet4U for the portion of the electrical work that it had performed. Because

there was no breach, we find that Vet4U is not entitled to lost profits. Although Vet4U

demanded compensation for the extensive redesign work performed by its electrical

subcontractor in response to the CO’s request for a change proposal, Vet4U did not make a

monetary claim to recover those costs, nor did it sponsor a claim from its subcontractor.

Without a properly supported monetary claim, we have nothing additional to consider. We

deny the claim for lost electrical work.

Legal Fees ($6300)

Vet4U’s claim for reimbursement of legal fees was listed along with the other claimed

amounts. We consider this claim to be a request for legal fees under the Equal Access to

Justice Act (EAJA), 5 U.S.C. § 504. Since that statute requires the applicant to be a

prevailing party to a judgment on the merits by the Board, Vet4U’s claim for legal fees is

premature. 48 CFR 6101.30(b) (2018); Triad Mechanical, Inc. v. Department of the

Interior, CBCA 3946, 15-1 BCA ¶ 35,858, at 175,324; Writing Co. v. Department of

Treasury, GSBCA 15097, 00-1 BCA 30,840, at 152,223. We dismiss this claim as

premature.

Decision

As set forth above, the appeal is GRANTED IN PART and DISMISSED IN PART.

The VA shall pay to Vet4U $46,052. Interest pursuant to the CDA, 41 U.S.C. § 7109, shall

accrue from the date the contracting officer received the claim until the date of payment.

Kathleen J. O’Rourke

KATHLEEN J. O’ROURKE

Board Judge

We concur:

Jerome M. Drummond

JEROME M. DRUMMOND

Board Judge

Harold D. Lester, Jr.

HAROLD D. LESTER, JR.

Board Judge