DENIED: March 20, 2026
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DENIED: March 20, 2026
CBCA 6987
STELLAR J CORPORATION,
Appellant,
v.
DEPARTMENT OF TRANSPORTATION,
Respondent.
Ryan W. Dumm and Ryan M. Gilchrist of Seyfarth Shaw LLP, Seattle, WA, counsel
for Appellant.
Rayann L. Speakman, Office of the Chief Counsel, Federal Highway Administration,
Department of Transportation, Vancouver, WA, counsel for Respondent.
Before Board Judges GOODMAN, KULLBERG, and ZISCHKAU.
GOODMAN, Board Judge.
On December 7, 2020, appellant, Stellar J Corporation (Stellar J), filed this appeal
from a decision of a contracting officer of respondent, Department of Transportation, Federal
Highway Administration (FHWA), denying appellant’s certified claim. On November 30,
2023, the Board issued a decision denying appellant’s motion for partial summary judgment
and respondent’s motion for summary judgment. Stellar J Corp. v. Department of
Transportation, CBCA 6987, 24-1 BCA ¶ 38,469 (2023) (summary judgment decision).
A hearing on the merits was held on December 9-10, 13, and 17-18, 2024. The parties filed
post-hearing briefs on February 28, 2025, and reply briefs on March 31, 2025. We deny the
appeal.
CBCA 6987
2
Background
I.
The Contract and Dispute
This appeal arises from a construction contract (the contract) between appellant and
respondent to construct improvements to the Wyeth Trailhead section of the Historic
Columbia River Highway State Trail in Hood River County, Oregon. The scope of work
included seven retaining walls, which appellant was required to design and construct, two
of which were designated as Wall 1 (W1) and Wall 2 (W2). Appeal File, Section A, Tab 1.1
The dispute involves W2.
The contract included construction drawings and plans prepared by CH2M, later
known as Jacobs Engineering Group Inc. (Jacobs). Section A, Tab 2. Jacobs subcontracted
with Cornforth Consultants, Inc. (Cornforth) to serve as geotechnical engineer of record for
certain aspects of the project during construction.
II.
Relevant Solicitation and Contract Provisions
A.
Specifications and Schedule
The solicitation and the contract contained “Standard Specifications for Construction
of Roads and Bridges on Federal Highway Projects,” referred to as Federal Project 14
(FP-14), as well as special contract requirements that amended and supplemented the FP-14.
Section A, Tab 1 at 210-417, Tab 3. In its introductory “Specifications Format” subsection,
the FP-14 correlates the item numbers in a bid schedule with the applicable FP-14
requirements section: “The first three digits of the pay item number in the bid schedule
identify the Section under which the work is performed.” Section A, Tab 3 at 920 (FP-14
subsection 101.02).
Schedule A is the bid schedule incorporated into the contract (bid schedule), and each
bid schedule page is marked with “CQ = Contract Quantity.” Section A, Tab 1 at 37-48. The
two items in the bid schedule associated with W2, and appellant’s bid prices for each, are:
1
The appeal file is divided by sections that are then subdivided by tabs. Unless
otherwise noted, record citations identify the section, tab, and, as applicable, Bates
number(s). Citations to hearing testimony identify the witness, volume, and page, with each
of the five hearing days designated as volumes 1 through 5, respectively.
CBCA 6987
3
Item No. 25501-1000, MECHANICALLY STABILIZED EARTH WALL,
WELDED WIRE FACE2
Line A0860
Quantity: 37,503
Unit: SQFT [square feet (sq. ft.)] (CQ)
Unit Price: [$]22
Amount: [$]825,066
Item No. 25701-0200, CONTRACTOR FURNISHED MECHANICALLY
STABILIZED EARTH WALL DESIGN, WALL W2
Line A0940
Quantity: All
Unit: LPSM (Lump Sum)
Unit Price: $4000
Amount: $4000
Section A, Tab 1 at 39.
The contract quantity of 37,503 sq. ft. under FP-14 section 255 for “Mechanically
Stabilized Earth (MSE) Wall, Welded Wire Face,” referenced above, is the sum of the wall
surface square footage in drawing M.20 for W1 (2906 sq. ft) and W2 (34,597 sq. ft.).
Section A, Tab 2 at 864. The 34,597 sq. ft. for W2 is the figure relevant to this dispute.
The bid schedule also included two additional items not related to the design and
construction of W2 but relevant to resolving this appeal:3
Item No. 20801-0000, STRUCTURE EXCAVATION
Line A0600
Quantity: 3427
2
Section 255 pay items in the bid schedule are those items with 255 as the first
three digits and whose work was governed by section 255 of the contract. Item number
25501-1000 is the section 255 pay item in the bid schedule relevant to the construction
of W2. This contract quantity is referred to herein as “wall surface square footage.”
3
Appellant used these two items (Structure Excavation and Structural Backfill),
and their unit-priced quantities, to calculate excavation and backfill costs in its request for
equitable adjustment (REA) and certified claim. However, these items and their unit-priced
quantities do not correlate with the construction of W2 but, instead, correspond with separate
work under section 208, as denoted by the first three digits (208) of the item numbers.
CBCA 6987
4
Unit: CUYD [cubic yard] (CQ)
Unit Price: $100
Amount: [$]342,700
Item No. 20803-0000, STRUCTURAL BACKFILL
Line A0640
Quantity: 1,242
Unit: CUYD (CQ)
Unit Price: $105
Amount: [$]130,410
Section A, Tab 1 at 38.
B.
Contract Quantity, Measurement, and Payment
In FP-14 subsection 109.02, Measurement Terms and Definitions, the contract defined
“contract quantity” as:
Contract quantity. The quantity to be paid is the quantity listed in the bid
schedule. The contract quantity will be adjusted for authorized changes that
affect the quantity or for errors made in computing this quantity. If there is
evidence that a quantity specified as a contract quantity is incorrect, submit
calculations, drawings, or other evidence indicating why the quantity is in error
and request in writing that the quantity be adjusted.
Section A, Tab 3 at 964 (emphasis added).
FP-14 section 255, Mechanically-Stabilized Earth Walls, defined the section’s work
as “constructing mechanically-stabilized earth (MSE) walls.” Id. at 1080. FP-14 subsection
255.07 (Measurement) required section 255 pay items to be measured as “listed in the bid
schedule according to Subsection 109.02.” With regard to wall surface square footage, this
subsection stated: “When measuring mechanically-stabilized earth walls by the square foot
(square meter),” the front face of the wall should be measured, excluding footings. Id. at
1082. This defined the method to measure wall surface square footage.
Payment terms for work under section 255 was set forth in FP-14 subsection 255.08
(Payment), as follows:
The accepted quantities will be paid at the contract price per unit of
measurement for the Section 255 pay item listed in the bid schedule. Payment
CBCA 6987
5
will be full compensation for the work prescribed in the Section 255. See
Subsection 109.05 [Scope of Payment].
Id. at 1083 (emphasis added).
Under the FP-14 General Requirements—Measurement and Payment section, Scope
of Payment was defined as:
Payment for contract work is provided, either directly or indirectly, under the
pay items listed in the bid schedule.
(a) Direct payment. Payment is provided directly under a pay
item listed in the bid schedule when one of the following applies:
(1) The work is measured in the [FP-14 subsection 255.07
(quoted above)] Measurement Subsection of the Section
ordering the work and the bid schedule contains a pay item
for the work from the Section ordering the work.
(2) The Measurement Subsection of the Section ordering the
work, references another Section for measuring the work and
the bid schedule contains a pay item for the work from the
referenced Section.
(b) Indirect payment. Work for which direct payment is not
provided is a subsidiary obligation of the Contractor. Payment for
such work is indirectly included under other pay items listed in the
bid schedule. This includes instances when the Section ordering the
work references another Section for performing the work and the
work is not referenced in the Measurement Subsection of the
Section ordering the work.
Compensation provided by the pay items included in the bid schedule is full
payment for performing contract work in a complete and acceptable manner.
Risk, loss, damage, or expense arising out of the nature or prosecution of the
work is included in the compensation provided by the pay items.
Work measured and paid for under one pay item will not be paid for
under other pay items.
CBCA 6987
6
The quantities listed in the bid schedule are approximate unless
designated as a contract quantity. Limit pay quantities to the
quantities staked, ordered, or otherwise authorized before
performing the work. Payment will be made for the actual
quantities of work performed and accepted or material furnished
according to the contract. No payment will be made for work
performed in excess of that staked, ordered, or otherwise
authorized.
Id. at 968-69 (emphasis added).
In addition to the contract quantity and payment terms in the FP-14 above, the contract
also contained Federal Acquisition Regulation (FAR) clause 52.211-18:
52.211-18 Variation in Estimated Quantity (Apr 1984)
If the quantity of a unit-priced item in this contract is an estimated quantity
and the actual quantity of the unit-priced item varies more than 15 percent
above or below the estimated quantity, an equitable adjustment in the contract
price shall be made upon demand of either party. The equitable adjustment
shall be based upon any increase or decrease in costs due solely to the variation
above 115 percent or below 85 percent of the estimated quantity. If the
quantity variation is such as to cause an increase in the time necessary for
completion, the Contractor may request, in writing, an extension of time, to be
received by the Contracting Officer within 10 days from the beginning of the
delay, or within such further period as may be granted by the Contracting
Officer before the date of final settlement of the contract. Upon the receipt of
a written request for an extension, the Contracting Officer shall ascertain the
facts and make an adjustment for extending the completion date as, in the
judgment of the Contracting Officer, is justified.
Section A, Tab 1 at 88 (emphasis added).
C.
Drawing M.20
Drawing M.20 included two tables, titled “Wall W1 QUANTITIES” and “Wall W2
QUANTITIES,” each with two items. Section A, Tab 2 at 864. The W2 table contained the
same item numbers as the bid schedule’s W2-related items:
CBCA 6987
7
Item No.: 25501-1000
Item. Mechanically Stabilized Earth Wall, Welded Wire Face
Quantity: 34597
Unit: [sq. ft.]
Notes: (1).
Item No.: 25701–0200
Item: Contractor Furnished Mechanically Stabilized Earth Wall Design, Wall
W2
Quantity: 1
Unit: [lump sum]
Id; see Section A, Tab 1 at 39. “Notes (1)” for item 25501-1000 referred to the drawing’s
“Estimate Notes,” which designated this item, reflecting the W2 wall surface square footage,
as a “Contract Quantity.” Id.
Drawing M.20 also included a table, titled “For Information Only Wall W2,” which
listed the following informational quantities: structure excavation (8270 cubic yards);
granular backfill (2190 cubic yards); select granular backfill (14,460 cubic yards);4 geotextile
(7430 square yards); drain pipe (2290 linear feet); and topsoil (1580 cubic yards). Id.
With regard to the table in drawing M.20, appellant states:
The table identified informational quantities for structure excavation, granular
backfill, select granular backfill, geotextile, drain pipe, and topsoil. All of
these elements were necessary to construct Wall W2. None of these elements
were separate pay items in the Contract bid schedule; they were included in
the overall square footage of the face of MSE Walls W1 and W2. . . . The
Government included the table of quantities on Drawing No. M.20 to provide
information to prospective bidders to develop a price for Walls W1 and W2.
Appellant’s Statement of Undisputed Facts ¶¶ 21-22 (emphasis added).
4
In this appeal, appellant seeks compensation for three materials for which “for
information only” quantities (FIOQ) were listed on drawing M.20: structure excavation,
granular backfill, and select granular backfill. When discussing the actual quantities of these
materials that appellant allegedly used to construct W2, we refer to them collectively as
“excavation and backfill” (as constructed) or “the FIOQ materials.”
CBCA 6987
III.
8
Explanation of “For Information Only” Quantities (FIOQ)
According to Knud Martin, the FHWA project engineer who served as the
Government’s on-site representative, the FIOQ were placed in drawing M.20 so that the
bidders could price the “incidental work”5 within the unit prices bid for wall surface square
footage. Testimony of Knud Martin (Martin Testimony), Vol. 3 at 21-24. This purpose is
confirmed in the Government’s Western Federal Lands Highway Division Estimating
Handbook (Estimating Handbook).6 See Appellant’s Motion for Partial Summary Judgment
(Appellant’s Motion), Exhibit B, Estimating Handbook, attached to Declaration of Ryan W.
Dumm (June 9, 2023). The introduction to this handbook states: “The objective of this
manual is to provide guidance for developing estimates at the various milestones, selecting
bid items and methods of measurement, rounding, and presenting quantities, and pricing item
work.” Estimating Handbook at 1. A chapter titled “For Information Only Quantities” reads
in relevant part:
6.1 General
Many bid items require multiple materials and multiple steps to perform the
full scope of the bid item. . . . In many situations, a contractor can use the
information provided in the PS&E [plans, specifications, and estimate] to
estimate their bid prices . . . .
In some situations, the scope of work may be more unique, or the work and the
material quantities associated with performing a bid item may not be readily
apparent from the resources listed above. In this case, the Designer needs to
add information to the Plans to enable bidders to accurately estimate their
price for performing the work.
....
5
Mr. Martin’s testimony regarding pricing the FIOQ as “incidental” work refers
to FP-14 subsection 109.05(b), which states: “Payment for such work is indirectly included
under other pay items listed in the bid schedule.” See also Section N, Tab 52-8 (internal
email from appellant’s first project manager stating that appellant’s bid “[m]issed all
‘incidental’ work” for W2).
6
The Estimating Handbook is not mentioned in the contract but contains
information relevant to the contract’s terms.
CBCA 6987
9
6.2 Do Not Measure for Payment
When “For Information Only” work/quantities are provided, that work is not
measured for payment. This is addressed in Subsection 109.05(b) of the
[FP-14] which states: Indirect payment. Work for which direct payment is not
provided is a subsidiary obligation of the Contractor. Payment of such work
is indirectly included under other pay items listed in the bid schedule.
....
6.3 Examples
The examples below describe situations where “For Information Only”
quantities have been provided in the Plans.
Example 1 – Mechanically Stabilized Earth Wall
The Repair Mather Memorial Slide Area project (WA NPS MORA 12(1))
contained Section 255 MSE Walls. As shown in the table, MSE walls were
measured and paid for by the square foot. In order to obtain a more accurate
bid for the work, ‘for information only’ quantities were estimated and provided
in the Plans. Note that the bid item number (Item 25501-0000) is only
provided for the bid item shown in the tabulation of bid quantities and that
indirect work items are labelled as “For Information Only” and contain no
bid item numbers.
[Table (illegible) omitted]
In some cases, an item listed in ‘For Information Only’ table will also appear
as a bid item elsewhere in the Plans.[7] Possible examples for such items from
the table above could be ‘Excavation,’ or ‘Object Marker Post White Plastic.’
This can cause confusion as to when this item is paid for and there is a risk that
contractors may mistakenly assume the work will be paid for directly in all
7
In the solicitation and contract, the material for “for information only”
quantities did not appear as either bid items or contract quantities to be paid. Reflective of
this fact, when appellant priced its REA and certified claim for alleged actual quantities of
excavation and backfill in excess of the FIOQ, it resorted to using unit prices bid for other
materials that were not associated with W2.
CBCA 6987
10
cases, and likewise the contractor may not cover their cost for the work listed
in the ‘For Information Only’ table. See the “Do Not Measure for Payment”
section above for additional guidance in this situation.
Id. at 73-76 (emphasis added in sections 6.1 & 6.3; emphasis in section 6.2 in original).
IV.
Appellant’s Bid and Contract Award
The average bid price submitted by the four other bidders for wall surface square
footage was $65.25 per square foot. Appellant’s bid price for wall surface square footage
was $22 per square foot. Section A, Tab 1 at 39; Section J, Tab 24 at 5198. Appellant’s first
project manager, Clayton Thompson, testified that the Government requested that appellant
confirm its bid after submission. Mr. Thompson reviewed appellant’s bid documents and
concluded that when appellant’s estimators prepared its bid, the costs for the FIOQ shown
in drawing M.20 had not been included in the unit price of $22 per square foot for the W2
wall surface square footage, which was identified and to be paid as a “contract quantity.” He
referred to this failure to include these costs as a “bid bust.” Testimony of Clayton
Thompson (Thompson Testimony), Vol. 1 at 234-35.
Mr. Thompson was not involved in the bidding process and does not recall who first
identified the “bid bust.” Thompson Testimony, Vol. 1 at 237.8 After receiving the
Government’s bid confirmation request, Mr. Thompson sent an internal company email on
November 28, 2017, in which he stated after reviewing the bidding documentation: “Bid
Bust: Missed all ‘incidental’ work for wall 2 in the bid.” Section N, Tab 52-8. Appellant’s
bid documentation, dated February 28, 2017, confirms that no costs were included in the bid
price for wall surface square footage for W2 for the FIOQ. See Section O, Tab 53-5;
Thompson Testimony, Vol. 1 at 234. Mr. Thompson admitted that appellant made a bid
mistake but that it nevertheless intended to perform the work for the wall square footage
price of $22 as bid:
We’re big boys. . . . [S]ometimes if we make a mistake we own it. And then
in that scenario, if we put zero dollars and missed that, we would still go
perform the work for the unit price that . . .we had on the table on the bid tab.
Thompson Testimony, Vol. 1 at 236.
8
The person(s) who prepared appellant’s bid did not testify.
CBCA 6987
11
Leif Schei, who succeeded Mr. Thompson as project manager, was also employed by
appellant at the time Mr. Thompson discovered the “bid bust.” He testified that the
estimators reviewed the bid with appellant’s “president/owner” and determined that appellant
could “still make” the bid price of $22 per square foot for wall surface square footage “work
with the quantities that are shown” and “felt [appellant] would still be able to make a profit
on the project. And so they decided to proceed with it.” Testimony of Leif Schei (Schei
Testimony), Vol. 3 at 191, 193.
After discovering and reviewing the “bid bust,” in response to the Government’s
inquiry, appellant confirmed its bid without revising the unit price for wall surface square
footage to include cost for the FIOQ, which Mr. Thompson’s email characterized as
“incidental work.”9 The contract was awarded on March 30, 2017. Section A, Tab 1 at 22.
Therefore, in the bidding process, appellant did not use the FIOQ for their intended purpose:
to price incidental work within a bidder’s unit price of wall surface square footage, which
was identified and to be priced as a “contract quantity.”
V.
W2 Design
After the contract was awarded, appellant subcontracted with Contech Engineered
Solutions (Contech) to perform engineering and design work. Contech and/or its affiliate
Keystone Retaining Wall Systems, LLC (Keystone) subcontracted with Golder Associates
Inc. (Golder) to perform the engineering and design work (collectively referred to as
appellant’s design subcontractors). Appellant’s Proposed Findings of Fact and Conclusions
of Law (Mar. 3, 2025) (APFFCL) ¶ 41.
In addition to Mr. Thompson and Mr. Schei, appellant’s project managers, and Knud
Martin, the FHWA project engineer who served as the Government’s onsite representative,
the following individuals testified as to the design and construction of W2:
•
9
Gary Heslin—a senior engineer with Cornforth Consultants, Inc. who
was the geotechnical engineer responsible for the initial evaluation of
W2, on behalf of the Government, during the Government’s project
development phase (i.e., before the construction contract was awarded to
appellant).
As noted previously, Mr. Martin also referred to pricing the FIOQ as
“incidental work” pursuant to FP-14 subsection 109.05(b).
CBCA 6987
•
Dan Tix—the director of technical services for Keystone during the
project who was actively and continually engaged throughout the
engineering and design work and submittal process with Keystone’s
subcontractor, Golder, during the design of Wall W2. See Testimony of
Dan Tix (Tix Testimony), Vol. 1 at 9-10.
•
Brian Willman—a Golder senior engineer (at the time of the project) and
licensed geotechnical engineer who oversaw Golder’s design work for
W2. Testimony of Brian Willman (Willman Testimony), Vol. 2 at 16-17.
12
Mr. Schei testified that appellant would not preemptively design the wall before
bidding, as it would only enter into subcontracts to design the wall after contract award.
Schei Testimony, Vol. 3 at 179. With regard to reviewing the requirement to design W2 in
the contract before bid, Mr. Thompson testified: “You never know a hundred percent
because . . . we’re not qualified as engineers. So we review it to the best of our knowledge,
and then we submit for a review by others.” Thompson Testimony, Vol. 2 at 230.
Mr. Martin testified that the FIOQ for excavation and backfill were included in
drawing M.20 as minimum requirements for purposes of the design of W2. Martin
Testimony, Vol. 3 at 29-31. Based upon the contractor’s ultimate design for W2, there were
many variables that would determine the actual quantities of the FIOQ materials of
excavation and backfill used to construct W2. Id. at 44-45. These variables included length
of reinforcements and loading of materials on top of the reinforcement. Also, based on the
ultimate design, the quantities of excavation and backfill would not necessarily increase or
decrease proportionally as the actual wall surface square footage increased or decreased from
the contract quantity on the drawing. Id at 38-40. The actual quantities of excavation and
backfill could also change based upon the contractor’s means and methods of construction.
Id. at 44-45.
Mr. Martin testified that the FIOQ in drawing M.20 were conditioned on the use of
the minimum reinforcement lengths identified as 0.7H (representing a ratio of reinforcement
length to wall height) on the contract drawings. Martin Testimony, Vol. 3 at 42-44; see
Testimony of Gary Heslin (Heslin Testimony), Vol. 4 at 201. If the contractor increases the
length of reinforcements in the wall, the quantities of excavation and backfill would increase.
Id. at 47-48.
Appellant’s design subcontractors also interpreted the reinforcement lengths as
minimum requirements. Dan Tix, the director of technical services for Keystone, appellant’s
subcontractor, considered reinforcement lengths as minimum requirements for design
purposes. Tix Testimony, Vol. 1 at 102. Mr. Willman of Golder testified that he was not
CBCA 6987
13
concerned with exceeding minimum requirements. He stated, “When you are given a
specification, you are to meet or exceed that specification. You do not get rejected when you
exceed the specification.” Willman Testimony, Vol. 2 at 83-84.
Mr. Willman testified further that Golder’s design role on the project was not related
to volumes of materials (i.e., the FIOQ materials). Id. at 30. More specifically, Golder’s
contract scope did not include addressing the excavation or backfill volumes for Wall W2.
Id. at 132. Rather, the overriding factor of Golder’s work was to design a wall to “ensure[]
that the public is safe.” Id. at 40. As Golder’s supervising engineer, Mr. Willman’s
“ultimate[] . . . threshold [was] to meet the requirements of life safety.” Id. at 69.
Appellant’s initial submittal of the W2 design was accepted by Mr. Martin for the
Government. Submittal 255-01 (Jan. 14, 2018), Section G, Tab 11-1 at 4158; see Heslin
Testimony, Vol. 4 at 192-93.
After reviewing the initial submittal, appellant’s project manager, Mr. Thompson,
realized that the reinforcement lengths as designed caused an increase in the excavation and
backfill that exceeded the FIOQ on drawing M.20. He testified, “[Golder] didn’t catch that.
I caught that and brought it to the surface.” Thompson Testimony, Vol. 2 at 254-255.
Mr. Thompson brought it to Golder’s attention after the initial submittal. Section N,
Tab 52-23 at 9441. Ultimately, Mr. Thompson approved the reinforcement lengths in the
design. Mr. Willman noted the approval in an email communication dated February 18,
2018, in which he stated: “Stellar J [project manager] . . . gave us thumbs up to go with the
longer strap lengths.” Section N, Tab 52-66.
Submittal 255-01a (Mar. 16, 2018) contained the final W2 design. See Section G,
Tab 11-2 at 4328-29. Mr. Heslin reviewed appellant’s final submittal and determined that
it was acceptable. Heslin Testimony, Vol. 4 at 232-33, 238-39. On March 23, 2018, the
Government marked Submittal 255-01a “accepted as noted” and added a comment, stating,
“Wall #1&2 are Contractor designed walls and are contract quantities.” Section G, Tab 11-2
at 4329.
VI.
W2 Construction
During W2 construction, appellant did not obtain actual area or volume measurements
of the FIOQ materials. See Schei Testimony, Vol. 3 at 265-266. After W2 construction was
completed, appellant engaged Otak, Inc. (Otak) to conduct a survey of the constructed
volume (actual quantities used) and later provide estimated quantities based on the contract
plans, with Mr. Scott Nettleton of Otak in charge of these efforts. Testimony of Scott
Nettleton (Nettleton Testimony), Vol. 4 at 6-7. Mr. Schei stated that it was not until Otak
CBCA 6987
14
performed the survey that appellant realized the actual quantities of excavation and backfill
that were put in place. “The OTAK report was the first big eye opener.” Schei Testimony,
Vol. 3 at 215-16.
In addition to conducting a survey of actual quantities, Otak’s analysis described what
it alleged was an inaccurate calculation of the FIOQ in drawing M.20. The analysis referred
to the FIOQ as “as bid” quantities.10 Nettleton Testimony, Vol. 4 at 8, 29-30. Otak
concluded that the Government’s calculation of the FIOQ was not accurate, based upon the
Government’s design assumptions, and the FIOQ for these materials should have been
greater. See Section I, Tab 23-3 at 5078 (citing Tab 1, memorandum from Scott Nettleton
(Feb. 28, 2019)). Otak’s analysis also calculated alleged “as built” quantities used in W2
construction. See id. at 5079.
From February 7 through June 5, 2019, the parties exchanged detailed correspondence
regarding appellant’s design and construction of W2. In this correspondence, appellant
asserted that, although it ultimately designed and constructed W2, it was entitled to additional
costs for excavation and backfill in excess of the FIOQ in drawing M.20. Section I,
Tabs 23-1 to 23-6.
In a letter dated March 27, 2019, the Government responded to Otak’s allegation
concerning the inaccuracy of the FIOQ, stating that it had recalculated these quantities based
on the original design assumptions and the quantities should have been three to nine percent
less than those included in drawing M.20. Section I, Tab 23-4 at 5111.
VII.
Appellant’s REA
By letter dated July 22, 2019, appellant submitted an REA, quoting FP-14 subsection
109.02 of the contract and stating:
Stellar J argues that the justification standard in using Specification 109.2b
should not be because the “As Bid”[11] quantity is unattainable, but rather,
because the “As Bid” quantity is not an accurate quantification of the scope of
work that was needed to build the Wall #2 in conformance to the final design;
10
By referring to the FIOQ as “as bid” quantities, Otak apparently was not aware
of appellant’s “bid bust,” i.e., that appellant had not included the FIOQ in its bid price for the
wall surface square footage of W2.
11
Appellant, like Otak, refers to the FIOQ as the “as bid” quantities, even though
it did not include costs for the FIOQ in its bid price.
CBCA 6987
15
the final design being that design stamped by the approved 3rd party engineer
and approved for construction by the Owner. As the contractor paying for the
changes to the scope of work in both additional time and money, Stellar J is
damaged because of these changes and is owed an equitable adjustment to the
contract for these unforeseeable additional costs and time to perform the work.
....
Stellar J hired Otak Engineers to quantify and to compare the quantities
yielded from the “As Bid” vs. “As Built” designs for Wall #2 using the
digitized topography provided by the Owner.
Otak’s analysis quantified the wall face surface area increased by 4% as
compared to the wall face surface area defined in the bid schedule. Further,
Otak’s analysis quantified that the volume of materials to be excavated
increased by 98% and that the volume of structural backfill needed to construct
Wall #2 increased by 52%.
Section I, Tab 23-7 at 5125-26 (footnotes omitted).
In the REA, appellant calculated these increases based on the FIOQ listed in the W2
quantities table in drawing M.20, which it describes as the “as bid” quantities, despite not
having incorporated these quantities into its bid price for wall surface square footage (labeled
as “Wall Face Area” in the REA). Appellant calculated the “as bid” and “as built” quantities
as follows:
Excavation
12
As Bid
(yd3)
As Built
(yd3)
Increased
Quantity
% Increase
8240[12]
16,284
8044
98%
This amount of 8240 appears to be erroneous, as the FIOQ for structure
excavation in drawing M.20 were 8270. The REA’s increased quantity of 8044 for
excavation therefore also appears to be overstated by thirty square yards. This apparent error
appears to have been corrected in the certified claim, which alleges an increased quantity of
8014, instead of 8044.
CBCA 6987
16
Total Granular
16,650[13]
Structural Backfill +
Total Select Granular
Structural Backfill
Wall Face Area
25,280
34,597[ft2] 36,008[ft2]
8630
52%
1,411
4%
Id at 5126.
As the result of these alleged increased quantities, appellant calculated its equitable
adjustment as follows:
Increased
Cost
Quantity
Reference
[Schedule A]
Bid
Price
($/unit)
Extended
Total
8,044
20801-0000
[$]100
[$]804,400
Total Granular
8,630
Structural Backfill +
Total Select Granular
Structural Backfill
20803-0000
[$]105
[$]906,150
Wall Face Area
25501-4000
[$]22
[$]31,042
Excavation
1,411
Total Request for Equitable Compensation
$1,741,592
Id.
Respondent, by letter dated August 26, 2019, responded to the REA, stating it was
“not in agreement with the claimed additional quantities for excavation and backfill” but
would issue a contract modification for the 1411 sq. ft wall face area increase:
[T]here has been an increase in the area of vertical wall face on Wall 2. The
additional wall face amounts to an increase of 1,411 square feet. Per FP-14
Section 255.07 for pay item 25501-1000, an adjustment is warranted for this
13
This amount of 16,650 is the total of the FIOQ for granular backfill (2190) and
select granular backfill (14,460) in drawing M.20.
CBCA 6987
17
additional 1,411 square feet. As this is a contract quantity pay item, a contract
modification will be issued to account for the additional face area of the
structure.
Section I, Tab 23-8.
VIII. Appellant’s Certified Claim
On July 8, 2020, appellant submitted to the contracting officer a certified claim
pursuant to the Contract Disputes Act (CDA), 41 U.S.C. §§ 7101–7109 (2018), in the amount
of $1,707,550, seeking alleged additional costs incurred for the construction of W2. In the
certified claim, appellant sought $801,400 for additional structural excavation (referred to
as “excavation” in the REA) of 8014 cubic yards (at a unit cost of $100) in line A0600 and
$906,150 for additional structural backfill (referred to as “Total Granular Structural Backfill
+ Total Select Granular Structural Backfill” in the REA) of 8630 cubic yards (at a unit cost
of $105) in line item A0640. Section C, Tab 6 at 3510-11, 3534.14
After the summary judgment decision was issued, appellant advised the Board:
Stellar J’s certified claim first utilized the contract’s existing unit prices for
excavation, backfill, and structural backfill from other elements of the Project.
Appellant’s Letter to the Board (Apr. 16, 2024) (Appellant’s Letter to the Board) (emphasis
added).
Appellant, therefore, acknowledged that the unit prices used to calculate alleged
quantum for the quantities of excavation, backfill, and structural backfill in the REA and the
certified claim were unit prices for contract quantities listed in the bid schedule to be paid
for work associated with other elements of the work, not for W2. These were unit prices for
item number 20801-0000, Structure Excavation, and item number 20803-0000, Structural
Backfill, for construction of work listed in section 208 of the specifications—Structure
Excavation and Backfill of Major Structures, again, not for W2, to which section 255 applied.
14
The total claim amount differs from that of the REA because the correct FIOQ
of 8270 cubic yards are used to calculate the increase for excavation of 8014 cubic yards, and
no claim is made for an increase in wall surface square footage, despite the Government’s
earlier offer to compensate appellant for this increase in contract quantity. As noted below,
the contracting officer retracted this offer in the decision denying the claim.
CBCA 6987
IX.
18
Contracting Officer’s Decision
On December 2, 2020, the contracting officer issued a decision denying the claim and
rescinding the previous offer to compensate appellant for the increase in wall surface square
footage, stating in part:
Wall W2 Quantities
....
In regard to the measurement of the wall quantity installed, the contract
designated the bid item for Wall W2 ([item number] 25501-1000) as a
Contract Quantity. FP-14 Subsection 109.02(b) defines a Contract Quantity
as follows: “The quantity to be paid is the quantity listed in the bid schedule.
The contract quantity will be adjusted for authorized changes that affect the
quantity or for errors made in computing this quantity. If there is evidence that
a quantity specified as a contract quantity is incorrect, submit calculations,
drawings, or other evidence indicating why the quantity is in error and request
in writing that the quantity be adjusted.” In the case of Wall W2, no changes
which affected the bid quantity were authorized by FHWA, and no errors were
made in calculating the designed quantities listed in the contract. The
additional quantity of the face of wall designed and constructed by Stellar J for
Wall W2, as shown in Submittal 255-01a, was not required in the contract, and
was done to increase the efficiency of construction.* Further, FHWA’s
comments provided to Stellar J on the approved Wall W2 design submittal
specifically reminded Stellar J that the Wall W2 quantity was a Contract
Quantity. Therefore, Stellar J is not due any payment for additional wall face
quantity in excess of the Contract Quantity amount shown in the contract plan
drawings.
Although FHWA’s August 26, 2019 letter indicated that an adjustment was
due to Stellar J for the additional quantity of the face of wall installed, the
project staff has informed me that this position provided by FHWA at the time
was specifically intended to facilitate settlement negotiations, and to
demonstrate to Stellar J that the Government was willing to compromise. As
outlined above, the additional quantity of the face of wall installed was due to
Stellar J’s decisions related to design and construction of the wall.
Accordingly, this Contracting Officer’s Decision serves to provide the final
analysis on the Government’s behalf and to resolve the inconsistency of
entitlement determination.
CBCA 6987
19
*
Pay Item 25501-1000 Mechanically Stabilized Earth Wall, Welded Wire
Face is measured by the Square Foot (SQFT) in the vertical plane.
Section D, Tab 7 at 4014-15.
X.
Appellant’s Revised Quantum
After the contracting officer issued the decision, appellant engaged the Sutor Group
(Sutor) to revise the quantum of its claim. Sutor produced an expert report dated February 3,
2023, which was prepared by Gary Moorehead. According to the report, Mr. Moorehead had
“been engaged to establish the additional costs . . . incurred for installation of additional
quantities associated with [W2].” Section K, Tab 27 at 3 (pdf page citation). The total
quantum was revised from $1,707,550 in the certified claim to $796,888 in the expert report.
Id.15 Alleged actual material, labor, and equipment costs were used to price the FIOQ
materials in excess of the FIOQ in drawing M.20. Id. at 6-11 (pdf page citation).
Mr. Moorhead’s resume states that he has a bachelor’s degree in accounting, is a
certified public accountant, and has experience in pricing construction claims, change orders,
delay claims, and quantification of other issues relating to construction. The resume states
15
Appellant filed its motion for partial summary judgment on June 9, 2023.
Appellant’s brief in opposition to the Government’s motion for summary judgment, which
was filed on June 30, 2023, states:
Stellar J’s certified claim first utilized the Contract’s existing unit prices for
excavation, backfill, and structural backfill from other elements of the Project.
See [Statement of Undisputed Material Facts] ¶ 68. As part of this litigation,
Stellar J engaged a forensic accountant to evaluate Stellar J’s actual
incremental cost increases arising directly from the additional quantities of
work required to install Wall W2. See Dumm Decl. ¶ 10. Stellar J is seeking
its actual additional costs attributable to the changes, plus interest and
attorneys’ fees pursuant to the Equal Access to Justice Act.
Opposition at 13. Dumm’s declaration also referenced the report from appellant’s forensic
accountant and quantum expert, Mr. Moorehead. Dumm Declaration ¶ 10. However,
appellant did not state in its opposition brief (or in the Dumm declaration) that quantum had
been reduced. Moreover, appellant did not include this expert report in the appeal file until
after the Board’s decision on the parties’ motions for summary judgment and after being
directed to do so by the presiding judge.
CBCA 6987
20
further that he is “[f]amiliar with entitlement issues relating to differing site conditions,
defective specifications, work suspension, work acceleration, constructive changes, and
changes in work sequence.” Id. at 81 (pdf page citation).
The expert report stated:
The bid schedule for the Project allowed for SJC to be paid by the square foot
(SF) of MSE wall face installed. Therefore, SJC receives more compensation
as the overall face of the wall increases. Being paid by the SF of face assumes
that the excavation and backfill behind the face of the wall increases linearly
with the face of wall increase.[16] However, if the excavation and backfill
behind the face of the wall changes disproportionally, or to a greater degree,
as to the face, the compensation by the SF does not adequately cover the
contractor’s costs. The Wall 2 excavation and backfill quantities grew at a
disproportionate rate as compared to the face of the wall.[17]
The Contract drawings provided quantities for the excavation and backfill
scope of work. However, the final design of Wall 2 required greater
excavation and backfill quantities than the Contract drawings indicated.
Id. at 3 (pdf page citation) (emphasis added).
XI.
Testimony Concerning Design Methods and Choices
A considerable portion of the hearing and post-hearing briefing was devoted to
testimony about appellant’s design subcontractors’ design choices during the W2 design.
Appellant asserted that respondent’s personnel had pre-bid knowledge of information that
was withheld from appellant that would have allowed for a different design methodology.
Respondent, in turn, challenged the expertise of appellant’s design subcontractors.
Respondent’s expert, Stanley Boyle, a senior vice president of Shannon and
Wilson, Inc. and a geotechnical engineer, concluded that W2 could have been designed as
an MSE wall with reinforcement lengths of 0.7H or 8 feet. Section X, Tab 25 (Boyle Report)
16
Mr. Moorhead is not an engineer, and his resume does not state qualifications
that would support his ability to reach this conclusion.
17
Mr. Moorhead does not take into account whether the contractor’s cost “would
have been covered” if not for appellant’s “bid bust” of not including the cost of the FIOQ in
its wall footage square footage unit price.
CBCA 6987
21
at 5-7, 9, 23-38; see Testimony of Stanley Boyle (Boyle Testimony), Vol. 5 at 57-58. He also
testified that W2 could have been designed as a reinforced soil slope (RSS) wall with
reinforcement lengths of 0.7H or 8 feet, whichever was greater. Boyle Testimony, Vol. 5 at
107-109; Boyle Report at 54-57. Mr. Boyle’s testimony and report conclude that—had
appellant’s design subcontractors possessed sufficient experience and expertise—appellant
could have designed and constructed W2 without actually exceeding the FIOQ.
This testimony, detailing the choice of design methodology, the challenges of using
design software, what might have been done differently, and of mutual fault-finding as to the
abilities of all involved, was not relevant to the resolution of the appeal. Appellant’s final
design was accepted by the Government as meeting the contract requirements. Heslin
Testimony, Vol. 4 at 232-33, 238-39. As noted earlier, on March 23, 2018, the Government
marked Submittal 255-01a “accepted as noted” and added a comment, which stated that
“Wall #1&2 are Contractor designed walls and are contract quantities.” Section G, Tab 11-2
at 4328-29.
XII.
Procedural History Before the Hearing on the Merits
In its motion for partial summary judgment, appellant requested that the Board decide
five issues. Stellar J, 24-1 BCA at 186,987 n.9. In its motion, appellant stated that “[n]one
of the relief requested by Stellar J will wholly adjudicate or dispose of a claim or defense in
the case, but this relief will streamline the issues for trial and move the parties closer to a
negotiated resolution.” Id. at 186,986. On November 30, 2023, the Board denied appellant’s
motion for partial summary judgment and, for reasons stated in the decision, declined to
address the issues raised by appellant. In the same decision, the Board denied respondent’s
motion for summary judgment. Id.
On December 1, 2023, the Board issued a pre-hearing order scheduling a hearing on
the merits to commence on February 1, 2024, as to “threshold issues of law and fact not
addressed in the parties’ previous motions for summary judgment, and identified in the
[summary judgment decision].” Board’s Prehearing Order (Dec. 1, 2023) at 1. The hearing
was rescheduled to begin on February 27, 2024, at the parties’ request.
On January 24, 2024, the presiding judge held a status conference at the request of
counsel, during which the parties agreed to submit, on or before February 15, 2024, the
stipulations required by the pre-hearing order. Counsel stated that their goal was to submit
stipulations that they believed would allow the Board to resolve the threshold issues on the
written record, without an oral hearing. The parties were directed to include in their
submissions a list of issues to be resolved after the threshold issues were resolved. The
CBCA 6987
22
parties were not able to agree to stipulations concerning the threshold issues, and a hearing
on the merits was held in December 2024 with post-hearing briefing thereafter.
Discussion
I.
Resolution of the Threshold Issues Identified in the Summary Judgment Decision
In its certified claim, appellant sought additional compensation for quantities used in
the construction of W2 in excess of the FIOQ designated in drawing M.20 for excavation and
backfill. In its summary judgment decision, the Board stated:
The parties’ motions do not address two threshold issues of law—(1) for which
contract quantities does the contract allow compensation, i.e., should appellant
be compensated based on wall surface square footage (which is designated as
a contract quantity on Schedule A and drawing M.20) or, instead, on the “for
information only” quantities on drawing M.20 (which appellant relied on in its
certified claim and in this appeal); and (2) what term(s) in the contract control
this determination? Depending on how these legal issues are resolved, an
issue of material fact would remain in dispute—the calculation of the actual
quantity or quantities for which the contract allows compensation.
Stellar J, 24-1 BCA at 186,985.
These issues are resolved here. The bid schedule in the solicitation and contract
contained bid items that are designated as CQ (contract quantity for payment) and others not
so designated. There were no items in the bid schedule for the FIOQ of excavation and
backfill listed in drawing M.20, the materials for which appellant seeks additional
compensation.
As noted earlier, wall surface square footage is designated as a contract quantity in
the bid schedule and drawing M.20. The contract quantity of 37,503 sq. ft. for
“Mechanically Stabilized Earth Wall, Welded Wire Face” in the bid schedule, for which
appellant bid the unit price of $22 per square foot, is the total contract quantity of the square
footage designated in the estimate note in drawing M.20: 2906 sq. ft. for W1 and 34,597
sq. ft. for W2. FP-14 subsection 109.02(b) defined “contract quantity” as “[t]he quantity to
be paid is the quantity listed in the bid schedule,” and this provision allowed for adjustments
in contract quantities as the result of authorized changes or errors made in computing these
quantities. Section A, Tab 3 at 964 (emphasis added). FP-14 subsection 109.05 defined the
scope of payment and described when a pay item in the bid schedule is paid directly or
indirectly, depending on whether the measurement of work to be performed is defined in a
CBCA 6987
23
contract section. Section 109.05(b) states that “[w]ork measured and paid for under one pay
item will not be paid for under other pay items.” Id. at 969 (emphasis added).
Also, as previously noted, FP-14 subsection 255.07 provided that MSE walls were to
be measured by the square foot and along the front face of the wall, excluding footings. As
W2 was to be measured and paid for by wall surface square footage, the FIOQ were not
items to be paid for directly by a unit price or otherwise. Rather, the costs of these quantities
are subsumed within the unit price that appellant bid for the contract quantity for wall surface
square footage and paid for indirectly by payment of that contract quantity, pursuant to FP-14
subsection 109.05(b), which reads, in part, “Payment for such work is indirectly included
under other pay items listed in the bid schedule.” This provision further stated that
“[c]ompensation provided by the pay items included in the bid schedule is full payment for
performing contract work in a complete and acceptable manner.”
This situation is described in the Estimating Handbook:
When “For Information Only” work/quantities are provided, that work is not
measured for payment. This is addressed in Subsection 109.05(b) of the FP
[Federal Project-14] which states: Indirect payment. Work for which direct
payment is not provided is a subsidiary obligation of the Contractor. Payment
of such work is indirectly included under other pay items listed in the bid
schedule.
Estimating Handbook at 74.
The FIOQ for excavation and backfill in drawing M.20 for W2 are listed in greater
quantities than the similarly named items, structure excavation and structural backfill, which
were designated as contract quantities in the bid schedule for work not associated with W2.
As noted in the summary judgment decision, “[t]his creat[ed] an issue of material fact in
dispute as to whether the unit prices and quantities of the two items on Schedule A [the bid
schedule] designated as contract quantities were intended to be used for the bidding and
construction of W2 or other structures.” Stellar J, 24-1 BCA at 189,685.
To price the FIOQ of excavation and backfill in its REA and certified claim, appellant
used unit prices of the similar items designated for work not associated with W2 in the bid
schedule but for work associated with section 208 of the contract, as noted by that three-digit
prefix in the bid schedule. The FIOQ materials were not listed in the bid schedule as
unit-priced items for payment to construct W2. Appellant acknowledges this, as it stated
regarding the FIOQ for W1 and W2 in drawing M.20, “None of these elements were separate
pay items in the Contract bid schedule; they were included in the overall square footage of
CBCA 6987
24
the face of MSE Walls W1 and W2.” Appellant’s Statement of Undisputed Facts ¶ 21. After
the summary judgment decision was issued, appellant again advised the Board that the
“certified claim first utilized the Contract’s existing unit prices for excavation, backfill, and
structural backfill from other elements of the Project.” Appellant’s Letter to the Board
(emphasis added).18
As the FIOQ of structure excavation, granular backfill, and select granular backfill
were not contract quantities included as pay items in the bid schedule, they were not items
to be paid for directly, but indirectly, as they were to be included in the unit price for wall
surface square footage. The wall surface square footage was the contract quantity to be paid
for directly.
The Estimating Handbook describes this situation:
Example 1 . . .
As shown in the table, MSE walls were measured and paid for by the square
foot. In order to obtain a more accurate bid for the work, ‘for information
only’ quantities were estimated and provided in the Plans. Note that the bid
item number (Item 25501-0000) is only provided for the bid item shown in the
tabulation of bid quantities and that indirect work items are labelled [sic] as
“For Information Only” and contain no bid item numbers.
Estimating Handbook at 75 (emphasis added).
Appellant offers the following additional argument to justify entitlement to
compensation for its actual quantities exceeding the FIOQ:
[T]he Contract also affords a mechanism to the contractor to address errors in
a Contract Quantity like Bid Item 25501-1000. See Rule 4 File, Tab 3, pg. 46,
§ 109.02. . . . While the total wall face quantity did not grow significantly, the
18
In its partial summary judgment briefing, appellant stated that its claim amount
had been revised but did not state whether the quantum increased or decreased. Appellant
only submitted the report with the repriced claim after the Board issued its summary
judgment decision and the presiding judge directed appellant to do so. Mr. Moorhead’s
report, dated February 3, 2023, already contained a revised claim amount of $796,888
(without using the unit prices for the other work), in lieu of appellant’s $1,707,550 initial
certified claim.
CBCA 6987
25
reinforcement behind the wall (and associated excavation and backfill) did
change significantly to construct the approved design for Wall W2. The
change in quantities behind the wall was not directly proportional to a change
in surface area of the wall face. Therefore, an adjustment of the Contract
Quantity under Section 109.02 of the Standard Specifications due to error must
necessarily encompass the change in quantities behind the wall as well.
Otherwise, the purpose and intent of the adjustment provision in Section
109.02 would be rendered meaningless, and the contractor would be denied
relief despite the clear error embedded in the Government’s Contract Quantity.
APFFCL ¶¶ 193-94 (emphasis added).
This argument lacks merit. As the wall surface square footage is the only contract
quantity to be paid, pursuant to FP-14 subsection 255.07, appellant’s argument is defeated
by FP-14 subsection 109.05(b) because the cost of the quantities “behind the wall,” as
appellant calls FIOQ materials, are paid for indirectly in the unit price of the wall surface
square footage. Therefore, appellant is not entitled to “the change in quantities behind the
wall [that were] not directly proportional to a change in surface area of the wall face.”
There is also no support for an expectation that the FIOQ materials would increase
directly proportional to an increase in wall surface square footage. As a factual matter, the
information in appellant’s REA demonstrates that the alleged wall surface square footage
was four percent greater than the contract quantity bid, while the FIOQ materials allegedly
increased substantially, and not directly proportional, to the increase in wall surface square
footage.
The contract does anticipate the possibility of an increase in the W2 wall surface
square footage, as the result of the design to be accomplished, and provides a mechanism to
compensate for the increase in square footage through the Variation in Estimated Quantity
clause. Compensation for an increase in the wall surface square footage pursuant to this
clause would compensate for the increase in FIOQ materials if priced within the unit price,
which appellant did not. However, because the wall surface square footage of W2 only
exceeded four percent of the contract quantity bid, this was not within the fifteen-percent
threshold for relief pursuant to the Variation in Estimated Quantity clause.
II.
Resolution of Other Issues Raised During the Hearing on the Merits
During the hearing on the merits and subsequent briefing, appellant raised various
legal theories to further justify entitlement. The gravamen of appellant’s claim is that the
inclusion of the FIOQ in drawing M.20 assured the contractor that it would be able to design
CBCA 6987
26
and construct W2 without exceeding those quantities. Appellant has asserted the following
legal theories to support its claim: (1) equitable adjustment for inaccurate FIOQ, APFFCL
¶¶ 156-192; (2) equitable adjustment for error in contract quantity under FP-14 subsection
109.02, id. ¶¶ 193-95;19 (3) constructive change and defective specifications, id. ¶¶ 196-211;
(4) superior knowledge, id. ¶¶ 212-19; (5) failure to cooperate and breach of fair dealing, id.
¶¶ 220-25; and (6) cardinal change, id. ¶¶ 226-28.
As discussed below, these legal theories offer no relief when viewed in the context
of appellant’s actions during bidding, design, construction, post-construction, and pricing of
its REA and claim. Of significance, the “bid bust” and appellant’s design subcontractors’
consideration of the FIOQ as minimum requirements were not in the record during the
summary judgment proceedings but only became apparent during the hearing testimony.
A.
Appellant’s Bid for W2
The construction of W2 was a contract quantity to be paid for by the unit-priced
contract quantity of wall surface square footage, for which appellant bid $22 per square foot.
The FIOQ materials listed in drawing M.20 were not identified as contract quantities or
otherwise listed in the bid schedule. The costs of these materials were to be included in the
unit price for the contract quantity of wall surface square footage of W2 and paid for
indirectly by payment for the contract quantity, pursuant to FP-14 subsection 109.05(b).
Mr. Martin, the Government’s project manager, testified that the FIOQ were placed
in the drawing so that the bidders could price this “incidental” work within the unit price for
wall surface square footage. However, appellant’s personnel who prepared its bid failed to
use the FIOQ for their intended purpose—to include the price of the FIOQ materials in the
unit-priced bid, resulting in a unit bid price for wall surface square footage much lower than
other bidders.
Appellant’s project manager, Mr. Thompson, testified that after appellant submitted
its bid, the Government requested that appellant confirm its bid before award. Apparently,
the Government made this request as other bidders averaged more than three times the bid
price for the square footage of the wall. After reviewing appellant’s bid submission,
Mr. Thompson and Mr. Schei, appellant’s other project manager, realized that the person or
persons who prepared the bid did not include any costs for the FIOQ in the bid price of $22
per square foot for the contract quantity/pay item of wall surface square footage of W2.
According to Mr. Schei, appellant’s personnel determined it could “still make” the numbers
19
The resolution of this issue is addressed in the previous section.
CBCA 6987
27
work and “make a profit,” despite what it termed as a “bid bust,” and confirmed its bid.
Therefore, when appellant realized its failure to use the FIOQ to price the contract quantity
of wall surface square footage, it decided nevertheless to confirm its bid without including
any costs of the FIOQ in the unit price it bid for wall surface square footage.
Appellant asserts entitlement to an equitable adjustment because the FIOQ were
allegedly inaccurate:
There is a “line of precedent which examines defects in contract documents
which mislead and cause unexpected increases in the contractor's costs, and
this line of precedent might be considered to identify a special subset of
defective plans and specifications cases.” Magus Pac[ific] Corp. v. United
States, 133 Fed. Cl. 640, 677 (2017). . . . These cases are sometimes referred
to as “inaccurate estimate” cases. Id. The cases can take varying forms, but
in relevant authority an equitable adjustment is warranted when an inaccurate
estimate in a solicitation “misled a bidder into submitting an excessively low
bid.” Id.
APFFCL ¶¶ 156-57.
The factual premise of Magus, that a contractor was misled by inaccurate information,
is not present here. Appellant cannot assert that the FIOQ were an “inaccurate estimate” that
“misled” it into submitting an excessively low bid because appellant did not include the costs
of the FIOQ materials when preparing its bid for W2 and did not revise its bid to include the
cost of the FIOQ materials when it discovered its “bid bust.”
Appellant’s personnel who prepared the bid did not testify. We could not determine
if those who prepared the bid intentionally or mistakenly did not include the costs of the
FIOQ in the unit price that was bid for wall surface square footage. Any allegation that
appellant relied upon the FIOQ when preparing the bid, despite its alleged bid mistake, is not
persuasive. See, e.g., Dravo Corp., ENG BCA 3901, 80-2 BCA ¶ 14,757, at 72,849.
B.
Appellant’s W2 Design
The solicitation and contract did not contain the final design for W2. The contract
required W2 to be designed and built by the contractor after award. As appellant intended
to hire a design subcontractor if awarded the contract, appellant did not have a design when
it decided to assume the risk of its “bid bust.” Mr. Schei, appellant’s project manager,
testified that appellant did not preemptively attempt to design W2 or the other walls in the
contract during the bid process, as it contemplated executing subcontracts for that work after
CBCA 6987
28
contract award. Appellant initiated design work after award through its design
subcontractors, Keystone and Golder.
As mentioned previously, while the contract quantity for wall surface square footage
of W2 in the bid schedule was stated as a fixed quantity, there was no requirement that the
ultimate design was restricted to this quantity, as the contract contained the Variation in
Estimated Quantity clause, which provides for an equitable adjustment for variations in unitpriced estimated quantities that exceed fifteen percent.
The Government’s project manager, Mr. Martin, testified that the FIOQ stated in
drawing M.20 were minimum quantities. The actual quantities would result from many
variables that would be determined by engineering choices during design, including the
length of reinforcements in the wall, the loading on top of the reinforcements, and the
contractor’s means and methods of performance. As an increase in the reinforcement length
would result in an increase in the quantities for excavation and backfill, but not necessarily
in proportion to the increase in actual wall surface square footage, it was apparent that the
designer could expect that the FIOQ would exceed those quantities stated on the drawings
as reinforcement lengths increased.
Appellant’s design subcontractors did not consider the FIOQ as a design limit or a
guarantee that W2 could be designed using the FIOQ. Rather, appellant’s design
subcontractors considered the FIOQ and reinforcement lengths, which affected these
quantities, as minimum requirements to be exceeded if necessary while designing a safe wall,
which was their primary concern. Mr. Tix, the director of technical services for Keystone,
testified that he, like the Government’s project manager, considered items such as the FIOQ
and the length of the reinforcements as minimum requirements that could be exceeded in the
final design.
Thus, both appellant and respondent interpreted the FIOQ and reinforcement lengths
as minimum requirements, with no guarantee that the final design would be limited to these
quantities or lengths. The FIOQ were therefore not considered by either party to be a
warranty that W2 would be designed and constructed by only using those quantities. “The
doctrine of concurrent interpretation, or contemporaneous construction, holds that great, if
not controlling, weight should be given to the parties’ actions before a dispute arises in order
to interpret a contract.” ServiTodo LLC v. Department of Health and Human Services,
CBCA 5524, 17-1 BCA ¶ 36,672, at 178,571 (citing Saul Subsidiary II Ltd. Partnership v.
General Services Administration, GSBCA 13544, et al., 98-2 BCA ¶ 29,871, at 147,861).
During the design of W2, Keystone’s subcontractor Golder did not take into account
the increase in the amount of the FIOQ materials that resulted as the length of the
CBCA 6987
29
reinforcements in the design exceeded the minimum. Mr. Willman, Golder’s senior engineer
overseeing the design, testified that Golder’s role was not to focus on volumes of material
(i.e., the FIOQ materials). Mr. Willman was not concerned if the minimum requirements of
the contract were exceeded. His concern was whether the design produced a safe wall.
When Golder’s first design submittal contained reinforcements that exceeded the
minimum length, Mr. Thompson advised Golder that the reinforcement lengths were causing
an increase in the FIOQ materials of excavation and backfill. Mr. Thompson raised the issue
with Golder despite that fact that the Government had already accepted the first design
submittal. However, appellant ultimately approved the longer reinforcements, and Golder’s
second design submittal was accepted by the Government. W2 was constructed based on the
second design submittal.
Appellant’s assertion that its design subcontractors were misled by the FIOQ as an
“inaccurate estimate” during the design phase lacks merit. The design subcontractors
testified that they did not consider the FIOQ as a constraint or limitation on their design
efforts. They did not testify that they were misled by the FIOQ.
C.
No Entitlement for Alleged Inaccurate Estimate or Defective Specification
We conclude that appellant cannot recover based on its assertion that the FIOQ was
an inaccurate estimate or a defective specification, as appellant did not rely on the FIOQ
when bidding and did not revise its bid to include the FIOQ after discovering its “bid bust.”
Appellant’s design subcontractors viewed the FIOQ as a minimum requirement that could
be exceeded and designed accordingly, resulting in a design in compliance with contract
requirements.
D.
No Entitlement for Breach of Implied Contractual Duties
Appellant presented extensive testimony during the hearing with regard to the detailed
procedures and engineering decisions of its design subcontractors as they designed W2.
Appellant argues that respondent had superior knowledge not revealed to appellant that W2
could have been designed using other engineering assumptions not specified in the contract.
Appellant also asserts that unspecified actions resulted in respondent’s failure to cooperate
and a breach of good faith and fair dealing We do not find these arguments persuasive.
Respondent presented expert testimony from its engineering expert, Mr. Boyle, who testified
as to his opinion that W2 could have been designed within the parameters of the FIOQ if
appellant’s design contractors were more experienced with the software they had used. The
conclusion we draw from this testimony is that any design is the result of the expertise and
engineering choices of the designer. Whether W2 could have been designed differently
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based on information not in the contract or engineering decisions by others with different
expertise is not an issue for this Board to resolve and not relevant to the resolution of the
appeal. Appellant ultimately produced a design acceptable to respondent and in compliance
with contract requirements.
E.
No Entitlement for Cardinal Change for W2 Construction
During construction of W2, appellant made no effort to count the quantities of
excavation and backfill as they were put in place. After construction was concluded,
appellant hired Otak to survey the area to determine the actual quantities of excavation and
backfill. According to Mr. Schei, this was a “big eye opener.” Appellant based its
calculation of actual quantities on a survey conducted after construction. Respondent
questioned the methodology and accuracy of the survey. Even so, the correctness of Otak’s
calculations of the actual quantities is not relevant to the resolution of this appeal.
Otak also performed an analysis and concluded that the contract contained an
inaccurate calculation of the FIOQ in drawing M.20—based upon what Otak alleges were
the Government’s design assumptions—and, therefore, the FIOQ for excavation and backfill
should have been greater. In response, the Government recalculated these quantities based
on the original design assumptions and concluded that the FIOQ should have been three to
nine percent less than those included in drawing M.20. Otak’s challenge to the engineering
assumptions used in calculating the FIOQ is not relevant, as appellant did not rely on the
FIOQ in bidding or designing W2.
While we do not find that appellant is entitled to monetary relief, we review
appellant’s quantum submissions to emphasize inconsistencies in appellant’s factual
allegations and legal theories and address the issue of cardinal change.
After W2 was constructed, the parties exchanged detailed correspondence with regard
to appellant’s design and construction of W2. In this correspondence, appellant asserted that,
although it ultimately designed and constructed W2, it was entitled to additional costs for
excavation and backfill in excess of the FIOQ. The REA contained information about the
actual quantity of wall surface square footage, which was four percent above the contract
quantity specified in the bid schedule. While appellant’s REA claim for increased wall
surface square footage was deleted from its certified claim, it is relevant to appellant’s
assertion that the FIOQ resulted in a cardinal change. Appellant states:
“A cardinal change is similar [to a constructive change], but has two
distinguishing features: (1) a cardinal change requires work materially
different from that specified in the contract, and (2) a cardinal change amounts
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to an actual breach of contract.” Bell/Heery v. U[nited States], 739 F.3d 1324,
1335 ([Fed. Cir.] 2014). . . . “A cardinal change . . . occurs when the
government effects an alteration in the work so drastic that it effectively
requires the contractor to perform duties materially different from those
originally bargained for.” Ian, Evan & Alexander Corp[.] v. United States,
136 Fed. Cl. 390, 415 (2018) ([quoting] AT & T Comm[unications], Inc. v.
Wiltel, Inc., 1 F.3d 1201, 1205 ([Fed. Cir.] 1993)). . . . For the reasons stated
above, the difference between the FIO Quantities for excavation and backfill,
and the actual neat line quantities for the final design of the wall that was built,
are so drastic as to constitute a cardinal change in the work (between 40% and
97% more). Appellant is entitled to damages in the amount of the costs
required to perform the excess quantities.
APFFCL ¶¶ 226-28.
We conclude that there was no cardinal change. We have determined that the FIOQ
was neither an inaccurate specification nor a defective specification. As appellant did not
rely upon the FIOQ in its bid and its design subcontractors did not consider those quantities
as a constraint on its design of W2, appellant’s actual excavation and backfill quantities were
the result of appellant’s and its design subcontractors’ decisions. The final W2 design, in
compliance with contract requirements, resulted in only a four-percent increase in wall
surface square footage, as a “contract quantity” for which the contractor was to be
compensated. This increase in wall surface square footage did not result in a cardinal
change, as the work was not altered so drastically that it effectively required appellant to
perform duties materially different from those originally bargained for. Ian, Evan &
Alexander Corp., 136 Fed. Cl. at 415. By not including the cost of the FIOQ in its bid, and
by considering the FIOQ as a minimum design requirement, appellant’s assertion that it only
bargained for work that did not exceed the FIOQ lacks merit.
F.
Repricing of the Claim Does Not Support Entitlement
After the appeal was filed, appellant engaged an expert to reprice its claim. The
expert utilized alleged actual material, labor, and equipment costs to price the FIOQ materials
in excess of the FIOQ in drawing M.20. Appellant’s expert did not rely on unit prices for
similar bid items as appellant had done in its REA and certified claim. In so doing, appellant,
through its expert, is acknowledging that the FIOQ were not unit-priced contract quantities
to be paid.
Appellant’s expert, a certified public accountant without engineering expertise, further
stated in his report that there was an assumption that the FIOQ materials would increase
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linearly with the increase in wall surface square footage. The expert did not state whether
this was appellant’s assumption or his own. This assumption of linear increase is
contradicted by the factual information in appellant’s REA that shows that the actual
quantities for wall surface square footage increased by four percent while the FIOQ materials
increased (as a result of appellant’s design) by much greater percentages.
Conclusion
The record contains other issues and arguments raised by the parties. We have
reviewed the entire record and only addressed those issues and arguments relevant to the
resolution of the appeal. The facts of this appeal do not support appellant’s legal theories as
to entitlement or quantum.
Decision
The appeal is DENIED.
Allan H. Goodman
ALLAN H. GOODMAN
Board Judge
We concur:
H. Chuck Kullberg
H. CHUCK KULLBERG
Board Judge
Jonathan D. Zischkau
JONATHAN D. ZISCHKAU
Board Judge
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