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GRANTED IN PART: November 13, 2019

CBCA 5168, 6298

AMEC FOSTER WHEELER ENVIRONMENT & INFRASTRUCTURE, INC.,

Appellant,

DEPARTMENT OF THE INTERIOR,

Respondent.

Chad V. Theriot and William E. Underwood of Jones Walker LLP, Atlanta, GA,

counsel for Appellant.

Colleen M. Burnidge and Amy M. Siadak, Office of the Solicitor, Department of the

Interior, Lakewood, CO, counsel for Respondent.

Before Board Judges SOMERS (Chair), VERGILIO, and CHADWICK.

CHADWICK, Board Judge.

This construction case is before the Board for decision after a six-day hearing in

May 2019. The contractor, known during the project as Amec Foster Wheeler Environment

& Infrastructure, Inc. (Amec), performed repair and restoration work for the National Park

Service (NPS) at the historic prison on Alcatraz Island in San Francisco Bay. Amec finished

seventeen months late, incurring $511,000 in withheld liquidated damages. It now seeks

approximately $15.7 million under a task order with a fixed price of about $4 million. Amec

also disputes a government claim for about $150,000.

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We cannot trace responsibility to the Park Service for any of the costs or most of the

time that Amec claims. Crucially, we see no basis to hold the agency liable for the difficulty

that Amec’s original subcontractor had in meeting the project requirements, and no evidence

that the agency caused Amec to terminate the subcontract for default, as Amec alleges. Once

we exclude from recovery the costs and time attributable to Amec’s bad experience with its

subcontractor, it becomes impracticable on this record to estimate what the project probably

would have cost or how long it probably would have taken absent those problems.

At the heart of the case is a unilateral modification that addressed a structural issue

discovered during demolition. The dispute about the modification is not about liability as

such. The agency admits responsibility for the change and acknowledges its significance.

The dispute centers on the price. Although we find that the change caused some measurable

delay, Amec does not prove that it incurred costs specifically to perform the modified work

that exceeded what Amec was paid for that work in the modification price. The agency, for

its part, does not persuade us that changes of the work resulted in overpayments to Amec.

We award Amec $130,000 plus statutory interest and deny the government claim.

Background

Except as specifically noted, the facts summarized here are not genuinely disputed.

We reserve most of our inferences and analysis for the discussion section.

Preaward Events

Events before the task order was awarded are ultimately irrelevant to our decision, but

we start with them for context. The Park Service began generally planning for this Alcatraz

Prison project in 1997, when it retained a civil engineering firm to assess the condition of the

prison’s central cellhouse. The agency could not afford the repairs that the firm

recommended at that time. In 2009, the Park Service tasked the same firm, using the same

individual engineer (later the engineer of record), to revive the repair project by delivering

schematic drawings, specifications, and a study of the expected costs. In the course of

preparing those deliverables, the engineer recommended that the Park Service consider

funding the work that became the subject of this case.

Specifically, the engineer warned the agency in an April 2010 letter that the metal

beams supporting the cellhouse in the structure known as the Citadel “ha[d] been slowly

deteriorating for decades” and that the agency should initiate a project to repair or replace

the beams, or should at least begin collecting data “to detect significant structural changes

before critical loss of strength occurs.” To briefly orient the reader (Alcatraz maps and plans

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are on the Internet), the original Citadel was a barracks at the island’s highest elevation. The

prison cellhouse was built in the early twentieth century on the Citadel’s foundation, which

the Park Service still calls “the Citadel.” The cellhouse above the Citadel consists of four

cellblocks (hallways), designated the A, B, C, and D blocks, in order from east to west. The

B and C blocks are longer than the others. The A, B, and C blocks each contain two facing

rows of cells. The D block has one row. Beside the cellhouse is a shower room, which the

Park Service uses as a foyer for tours of the prison.

In 2010, the engineer took photographs to document the condition of the support

beams running the lengths of the cellblocks. Those photographs and other observations by

the engineer seemed to suggest that the deterioration was worse under the A and D blocks

than under the B and C blocks. In places beneath the A and D blocks, corrosion had caused

the beams to bend, which had severely degraded the concrete that encased the beams, to the

extent that the concrete had fallen completely off in some areas and daylight was visible

through at least one stretch of concrete beneath a beam. The concrete encasing the B and C

block support beams, by contrast, had significant lateral cracks but did not show signs of the

same structural problems.

In late 2010, the engineer oversaw further investigation of the condition of the support

beams. This included cutting exploratory holes, approximately two feet in diameter, in the

concrete casing. The investigation revealed that the beams running under the A and D blocks

were steel, while those under the B and C blocks were cast iron. For his own notes of the

investigation, the engineer made non-scale field drawings of the openings. His drawings

depicted fractures in the beams at five of the six openings in the B and C blocks. His

drawing of an opening under the B block showed a horizontal fracture in the iron beam that

appeared to separate the vertical segment of the I-shaped beam from its base, or lower

“flange.” The engineer testified at the hearing that, given the relatively good condition of

the concrete on the B and C block beams, he did not suspect that any of those beams had

lengthy cracks or were structurally compromised. The engineer did not provide his field

drawings to the Park Service. There is no evidence that he spoke to anyone at the Park

Service about particular fractures in the beams, but no one who testified remembers

specifically. The exploratory openings were patched following the investigation.

At the engineer’s recommendation, the Park Service developed a plan to fully replace

the steel beams under the A and D blocks and to patch and repair the cast iron beams under

the B and C blocks, including by installing cathodic corrosion protection. Over time, the

engineer prepared for the Park Service a series of increasingly detailed and specific cost

estimates for this project, sometimes combined with other proposed items of work. In

preliminary estimates prepared before 2011, he included a “degradation factor” indicating

that the condition of the prison would probably continue to deteriorate, and the repair and

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replacement costs would probably increase, the longer the Park Service waited to perform

the work. In the final, or “class A” estimate, delivered in March 2011, the engineer did not

include a degradation adjustment to the projected costs. He testified at the hearing that when

“construction was now imminent . . . to continue to add [adjustment] factors, whether it’s

[for] inflation or degradation . . . doesn’t make sense because we’re going to construction.”

In June 2011, the Park Service issued the solicitation for the beam repair and

replacement project, combined with repairs of the shower room, as a notice of a proposed

task order under a Department of the Interior multiple-award task order contract (MATOC)

for construction services. Amec, one of the MATOC holders, attended a site visit in

July 2011 and submitted its final bid in September 2011.

II.

Award and Notices to Proceed

The Park Service awarded task order P11PD20278 to Amec on September 26, 2011,

at a fixed price of $3,613,617. The parties do not cite and we do not see in the task order a

concise description of the scope of work. In general, the task order listed quantities of

multiple types of work in the Citadel and in the shower room, priced in various units, ranging

from one repair for a lump sum, to up to 200 linear feet of another type of work, to up to

800 square feet of miscellaneous soffit patching. The task order contained the clauses

commonly found in government construction contracts, and other provisions, which we

discuss below as relevant to the case. The period of performance was 365 calendar days,

beginning no more than fifteen days after receipt of a notice to proceed.

Upon award of the order, Amec began negotiating a subcontract for most of the work

with Spectrum Services Group, Inc. (SSG), a small business. SSG, in turn, did not plan to

self-perform most of the work, other than demolition. SSG eventually entered into a secondtier subcontract with Shared Systems Technology Inc.–Pullman (Pullman), a larger

construction firm, although this arrangement was not finalized until March 2012.

On October 17, 2011, the Park Service issued a limited notice to proceed with

submittals and related “administrative” matters. The parties agree that this did not start the

clock for completion. The agency issued the formal notice to proceed on February 2, 2012.

Amec mobilized immediately. The completion date was January 31, 2013.

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III.

Performance with Spectrum Services Group, Inc. as Subcontractor

Shoring Submittals

The parties agree that events between award and late July 2012 used up much of the

float (non-critical days) in the original schedule, which the Park Service approved in March

2012. Because no one argues that events before July 2012 extended the project’s critical path

to completion, we need not synopsize that period or assign blame for consuming the float.

We focus on one controversy that arose in that period because it continued after July 2012,

bears on Amec’s delay claim, and exemplifies tensions that arose between Amec and SSG.

Amec and SSG had trouble preparing for submission to the Park Service, among other

things, the plans required by the task order for temporarily shoring the cellhouse during the

beam work. Amec and SSG signed their subcontract on November 28, 2011, forty-one days

after the “administrative notice to proceed.” Amec expected SSG to draft submittals. SSG

said it did not have enough information to prepare shoring submittals and would need data

from the Park Service. When Amec sued SSG under the subcontract in federal court in

August 2013, Amec alleged that “despite daily communication between AMEC and SSG . . .

after signing the Subcontract, all but the simplest of requirements were not performed by

SSG. . . . It became clear that SSG was not equipped to properly prepare [preconstruction]

documents[] and did not have the required knowledge to adequately do so.”

Contemporaneously, in May 2012, Amec emailed SSG that, “[r]egarding the shoring plan

and design, it is important that SSG realizes and accepts it is responsible for . . . both the plan

and the design, including all necessary testing, surveying, or data collection.”1 Eight days

later, Amec wrote to SSG, “SSG holds the responsibility for gaining the information to

complete the calculations and design for the shoring plan and refused to do so despite

repeated written and verbal communications, due to cost concerns.”

We resume the story in late July 2012. Amec did not plan to shore the B or C

cellblocks, where the cast iron beams were to be repaired but not replaced. The Park Service

concurred. The agency approved Amec’s submittal for shoring under the A block effective

July 25, 2012. The agency did not approve Amec’s submittals for the D block or the shower

room shoring for forty-seven more days. Amec’s next-to-last submissions of the D block and

shower room shoring information occurred on August 3. The Park Service rejected the

shower room shoring submittal immediately because no plans were attached. It rejected the

D block submittal on August 13, stating that the plans were incomplete. Amec alleged in its

The shoring specification stated, among other things, “The Contractor shall be

responsible for the design of the shoring system” and “[shall] perform field surveys as

needed to determine in place loads and load paths.”

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later suit against SSG, “By August 2012, the necessary submittals still had not been

completed by SSG. As a result, AMEC sent its own senior project manager to SSG’s office

for two weeks to assist SSG in developing task scheduling, the material submittal process,

and overall compliance to the project requirements[.]” (In a 2013 letter to the Park Service,

Amec said its manager spent “three full weeks” with SSG at this time.) On August 16, Amec

asked the Park Service for data on the mass that solar panels on the roof of the cellhouse

transmitted to the building, to complete the shower room shoring plan. The agency provided

the requested data on August 24. On August 30 (a Thursday), Amec resubmitted the D block

and shower room shoring plans, which were approved on Monday, September 10.

First Schedule Revision

On August 9, 2012, during the back-and-forth about the D block and shower room

shoring submittals, the contracting officer accepted a revised baseline project schedule. This

schedule was outdated when it was approved, as it showed the milestone of approval of

shoring submittals occurring on July 29. This new schedule showed completion on

January 22, 2013, nine days early. One of several changes in methods that Amec adopted to

recover time under this schedule was to install the shoring under the A and D blocks all at

once, rather than in alternating sections (or “leapfrog” fashion), as SSG had originally

planned. Also in August 2012, Amec and SSG were working on a proposal to vary the

specified concrete mix, to allow 3/8-inch aggregate instead of the specified 3/4-inch

aggregate. SSG believed that concrete with smaller aggregate would be easier to pump into

the work areas. Amec submitted a final concrete mix design on August 30, and the Park

Service approved the submittal for both sizes of aggregate on October 1.

On September 19, 2012, the contracting officer issued a “letter of concern” to Amec.

She wrote that the project was twenty-two days behind schedule and asked Amec to submit

within five days “a recovery plan [with] schedule update and time loading clearly indicating

how the accepted [August 9] baseline schedule will be achieved.” Amec provided a

preliminary response on September 21, conferred with SSG, and provided a formal recovery

plan on October 9. In a two-page September 25 letter to SSG about the need for corrective

action, Amec stated that “SSG’s lack of schedule progress has been documented in previous

weekly status reports, meetings and other communications to SSG.” Amec also complained,

among other things, that SSG’s responses to three agency requests for price proposals for

modifications “have been completely unacceptable including significant tardiness” and “have

resulted in such a response from our review that Amec cannot submit [them] to the NPS in

good faith. . . . The change order process is not a mechanism to recover or alter . . . past

financial performance[.]” Amec concluded its September 25 letter to SSG, “The time to

plan, communicate and execute the project cannot be delayed further.”

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Second Schedule Revision

The recovery plan that Amec submitted on October 9, 2012, included a second revised

schedule, showing timely completion by January 31, 2013. Among the changes in methods

to recover time under this second revised schedule were increasing the on-site workforce

from about twenty people to about thirty-five, extending the workweek from four days of ten

hours each to five days of ten hours, and working under the A and D blocks simultaneously.

Amec’s October 9 recovery plan, drafted by SSG, marked the first time that Amec

seemed to suggest in writing that the Park Service was responsible for project delay. The last

paragraph of the narrative referred to “past and current delays caused by . . . shoring design

approval [by] Amec and NPS.” By letter of October 17, the contracting officer took issue

with that language. In a response two days later, Amec walked the comment back. While

maintaining that the engineer of record “withheld” certain “calculations that would have been

helpful” in designing shoring, Amec acknowledged that “field measurements, testing, and

calculations should have been done independently[, to] include[] the necessary load

requirements.” Amec added, “It should be noted that SSG continues to maintain . . . to the

contrary . . . and [SSG] stated [as much] in response to this comment by Amec.”

On October 29, 2012, the contracting officer agreed to Amec’s recovery plan and the

second revised baseline schedule, subject to a minor condition. By this time, however, the

parties knew that conditions uncovered in the B and C block beams would require a

significant modification of the task order.

History of Unilateral Modification 1

The problem had emerged in late August 2012. Initial demolition of the concrete

around the beams in the Citadel revealed that the cast iron beams under the B and C

cellblocks were in worse condition than was expected, as they had long, lateral cracks that,

it was gradually found, had caused their lower flanges to separate from the vertical sections

of the beams. Amec installed temporary shoring under the B and C block beams in August

and asked the Park Service for direction in September. The agency sent Amec sketches of

a new, more extensive repair procedure for the B and C block beams on September 26. On

October 3, the agency requested a price proposal.

Amec’s initial response, on October 10, was to object to the Park Service’s solution.

Amec raised concerns about “ease of constructability, relying on the cast iron sections for

support, interaction of the iron and [newly installed] reinforced concrete beams under load,

as well as the appearance of the proposed galvanic plates” to be installed for corrosion

protection. (An Amec witness testified at the hearing that the agency’s approach “wouldn’t

CBCA 5168, 6298

even remotely work” and could not have been warranted by Amec, but Amec did not write

that in 2012.) Amec suggested two alternative approaches: either removing and replacing

the iron beams, “similar to the work being done in cell blocks A and D,” or a “metal-lock

procedure” to stabilize the beams in place. The parties exchanged correspondence about the

scope of this change, and about the price of the change, for several months.

On December 18, 2012, the contracting officer formally directed Amec to proceed

with repair work on the beams under the B and C blocks in accordance with revised drawings

issued by the agency, adding that she would either bilaterally or unilaterally modify the task

order to price the change within thirty days. Three weeks later, on January 13, 2013, after

a meeting with Amec, the contracting officer sent further revised plans for the changed work,

incorporating an idea raised by Amec to remove the lower flanges of the cast iron beams.

The parties did not succeed in negotiating either a price or a time extension for the change

necessitated by the cracked iron beams. Amec submitted a proposed modification price of

$661,936 on January 25 and requested a three-month extension. Amec did not submit a

written analysis of the effect of the change on the project’s critical path.

On January 29, 2013, the contracting officer priced the change by issuing unilateral

modification 1 in the net amount of $265,703.61 with no additional time.2 She established

a price of $291,043.61 for the modified work on the B and C block beams but offset that

amount with credits for other changes. Modification 1 stated that repairs of the B and C

block beams “shall be completed as per” five listed drawings.3 The contracting officer based

the price increase on an internal agency estimate that the modified repairs would entail about

$100,000 in added labor costs and about $102,000 for materials, including rebar, plus

markups. Amec wrote to the contracting officer on January 30 that it would “proceed with

the work” but would “submit a Request for Equitable Adjustment (REA) . . . for schedule

impact and for cost impact above the amount of $265,703.61 that results from the Unilateral

Changes.” On January 31, the agency approved a submittal for shoring in the B and C blocks

necessitated by the modified work.

The parties call the modified repairs of the B and C block beams “RFP 4 work”

because the change originated with request for price proposal 4. We refer instead to

modification 1, which incorporated the change in the task order.

Given how Amec tracked and presented its costs, discussed below, we need not

describe the modified repairs in detail. In general, as further clarified through requests for

information after the issuance of modification 1, the work involved exposing the cast iron

beams, removing their lower flanges, constructing “sister beams” of rebar beside the original

beams, then reinstalling concrete.

CBCA 5168, 6298

Events Leading to Subcontract Termination

Also in late January 2013, SSG asked Amec for an extension of 150 days under its

subcontract. Amec responded to SSG in mid-February that SSG had not provided “adequate

substantiation for the request,” which would need to include a “complete and thorough . . .

examination of the project schedule . . . clearly detailing any negative impacts claimed . . . .

[A]ny delays caused by SSG must be reflected as well. . . . Failure to provide sufficient

substantiation precludes any reasonable review by AMEC or NPS for any additional period

of performance.” Amec’s task order stated that “[e]ach Time Impact Analysis shall include

a Fragmentary Network (Fragnet)” projecting the impact of changed work or conditions. The

January 31 project meeting minutes contain a cryptic statement that Amec had asked that the

Park Service “not add time to the [pending] unilateral mod [1] so it could be used as

additional leverage during negotiations . . . and must come to an agreement or LD

[presumably, liquidated damages] will kick in.” This sentence, which Amec disavows,

remained in the minutes throughout the project.

Effective February 1, 2013, the contracting officer assessed liquidated damages under

the task order of $1000 per day past the completion date.

The January 2013 unilateral modification exacerbated tensions between Amec and

SSG. By 2013, SSG had abandoned the five-day workweeks promised in the October 2012

recovery schedule and had resumed four-day weeks. On January 31, Amec directed SSG to

go back to five days, but SSG refused. SSG began demolition associated with the work on

the B and C block beams on February 20, 2013, but on March 29, SSG told its second-tier

subcontractor, Pullman, “not to move forward on any additional work outside your base bid

contracted work,” including measuring and cutting rebar for the modified B and C block

work, “until SSG and AMEC ha[ve] come to agreement on terms.” In the same period, SSG

and Pullman were blaming each other for project delays and inefficiency. On April 17, SSG

sent Pullman a cure notice charging that Pullman “continues to adversely affect the . . .

schedule . . . by repeated failures to show up to work unless it has exclusive access to the

worksite” and demanding that Pullman replace its project superintendent with a “qualified

superintendent.” Five days later, Pullman responded that “the job has been shut down due

to the fact that SSG will not allow our Site Superintendent on site.” SSG and Pullman seem

to have worked out these differences by the end of April 2013.

Disagreements between Amec and SSG continued. SSG insisted that Amec should

pay SSG what the modified B and C block beam work was actually costing SSG, and not

merely SSG’s share of the price of unilateral modification 1. SSG also continued to press

Amec for more time. On April 29, 2013, Amec wrote to SSG, among other things, that

“Amec has not received a schedule analysis or any . . . documentation that would support

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SSG’s position that a Period of Performance extension is warranted,” and that “SSG is

obligated to promptly proceed to perform the change(s) in the Work” notwithstanding the

price dispute. The same day, SSG sent Amec an updated project schedule showing

completion on July 10, 2013, with no analysis of the causes of delay. (Amec attached this

schedule to a pay application in early May 2013 and now cites it as containing the first

fragnet that Amec provided to the Park Service showing the time impact of modification 1.)

On May 2, SSG stopped performing modification 1 work altogether.4 SSG’s project manager

testified that SSG stopped the work because SSG was “not getting paid” by Amec and “cash

was tight.” On May 13, Pullman asked SSG for authorization to bring a third-tier rebar

vendor to the site to take measurements for the B and C block repairs, but the SSG

representative emailed Pullman that he was “speaking with [SSG’s] contract manager” and

to “please hold tight while we try and work out the specifics.”

On May 23, 2013, Amec wrote to SSG about the schedule that SSG had provided on

April 29. Amec wrote, among other things, “The SSG letter and schedule currently do not

show which days are ‘delay days’ or how those days are determined. Please explain how the

schedule indicates the delays to your work, the source of those delays, and which party is

responsible for the alleged delays.”

On June 6, 2013, the contracting officer issued another letter of concern, stating,

among other things, that “AMEC is breaching the contract by refusing to continue to work”

on modification 1 and that “[a]ny breach of contract shall prove grounds for contract default

proceedings.” In a two-page response on June 14, Amec denied there was “a basis to allege

AMEC has breached its contract” and maintained that “AMEC was not able to meet the

originally scheduled completion date because of the NPS’s multiple, significant changes to

the scope of work.” Amec added that it had “temporarily suspended” the modified repair

work in the B and C blocks “because there were outstanding issues associated with

unresolved” information requests. Amec also asserted that the Park Service was not

“appropriately fund[ing] its changes.” Amec promised “to proceed with the directed work

until completion” but “reserve[d] all its rights under the contract.”

Six days later, on June 20, Amec terminated SSG’s subcontract for default. In its

four-page termination letter, Amec stated twice that SSG’s material breaches of the

subcontract were “too numerous to list.” Amec listed eight “major categories” of breach.

Among these was SSG’s “refusal” to perform on schedule, “an ongoing concern of AMEC

and its Client, the National Park Service. The inability of SSG to provide sufficient forces

Amec dates SSG’s work stoppage to May 6, a Monday. Emails between SSG

and its surety on Friday, May 3, show that SSG had already stopped authorizing Pullman to

perform modification 1 work.

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from its own resources and to direct SSG’s lower tier subcontractor has caused irreparable

damage to the Schedule and jeopardized the timely completion of the Project.” Amec also

complained that “[w]ork under the change in site conditions was not initiated after

resolutions of [information requests] on May 31, 2013.” (A reference to ordering

“reinforcement steel,” or rebar, confirms that this complaint was about modification 1 work.)

Amec said it “regret[ted]” that the action was “necessary” but said it had “no choice but to

terminate SSG for cause and complete the Contract by other means.” Of significance to this

case, Amec’s letter did not state or imply that the Park Service caused the termination.

IV.

Transition to Western Waterproofing, Inc. as Subcontractor

On June 24, 2013, Amec sent the Park Service another recovery plan. Amec

explained to the agency that it had terminated SSG’s subcontract “primarily” because “SSG

would not subcontract with Pullman to complete the Changed work . . . and SSG is not

approved by the NPS as qualified to perform the remaining work.” Again, Amec did not

allege Park Service involvement in the termination. Amec said it was “working directly with

Pullman as the preferred subcontractor to step in and finish the work with the least possible

disruption to the Project.” This did not go smoothly. When Amec could not promptly

negotiate a subcontract with Pullman, it sent letters to SSG’s surety on July 2 and July 18

asking the surety to move the project forward. SSG’s surety wrote to Pullman in early

August that the surety was taking SSG’s place as Amec’s subcontractor and that Pullman

should resume work. Pullman continued to negotiate for better terms.

On September 11, 2013, with no work occurring, the contracting officer issued a

show-cause letter, warning Amec that “the Government is considering terminating the [task

order] for default” and demanding a response within ten days.

Two days later, on September 13, SSG’s surety entered into a second-tier subcontract

with SSG to at least restart the work. SSG remobilized on September 19, billing its surety

on a time and materials basis.

On the day that SSG remobilized, September 19, Amec responded to the September 11

show-cause letter. Amec wrote, among other things, that “after AMEC determined that SSG

and its management were not going to progress work and would serve as a disruption on the

project, we proactively terminated their subcontract for default.” Amec urged the agency not

to terminate, stating, among other things, that “lack of funding and the delay in the schedule

due to . . . changes have significantly impacted the project and are certainly factors that were

beyond Amec’s control.” Amec wrote that “one of . . . two [potential] subcontractors is

expected to mobilize the week of September 30, 2013,” to complete the job. By letter of

October 17, 2013 (after a government shutdown), the contracting officer disputed several of

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Amec’s assertions about responsibility for the project’s problems but closed out the showcause letter, stating that “the Government is optimistic that this project will succeed and the

construction [will be] completed.”

Base work and modified work remained. In the September 11 show-cause letter, the

contracting officer wrote that “progress meeting the base portion of the contract is 87%” and

work under modifications was between twenty-five and fifty percent complete. In its

September 19 response, Amec described the project as “delayed at approximately over 85%

complete” and did not dispute the contracting officer’s completion percentages.

At the end of September 2013, Amec chose a new subcontractor to complete the

project. In its 291-page post-hearing brief, Amec mentions the replacement subcontractor,

Western Waterproofing, Inc. (Western), several times (never by its full name) but Amec does

not explain exactly what Western agreed to do, or how Amec knows what portion of

Western’s billings were “directly related to the performance of changed work” rather than

base work. The agency points to some evidence that SSG’s second-tier subcontract with

SSG’s surety and Western’s subcontract contained some of the same items of work. Adding

to the complications in this record, Western briefly engaged a second-tier subcontractor, Tom

Lewis Restoration and Consulting, whose full corporate name similarly does not appear and

whose exact scope of work is not explained in Amec’s brief. Western also entered into a

second-tier subcontract with Pullman, which used a third-tier subcontractor, Electrotech, for

work related to corrosion protection. No one from Western testified in this case.

Project Completion with Western

Amec went on to achieve substantial completion in June 2014. We are at a loss to

determine exactly who performed what work, when.

Apparently, Amec lacks

contemporaneous project records to make such a showing. In the claim it submitted to the

agency in 2015, Amec alleged that SSG’s uncompleted work had “minor defects” and that

Amec “was forced to pay for . . . corrective work under Western’s subcontract.” Amec

devotes twenty-six pages of its post-hearing brief to “Amec’s damages related to Western’s

performance of [modification 1] work.” Amec repeatedly asserts that Western was

performing “primarily” or “a significant amount of” modification 1 work at certain times.

As support, Amec almost exclusively cites demonstrative exhibits or hearing testimony in

which Amec’s representatives made similar assertions. Amec rarely cites project records.

Amec states that between October 2013 and January 2, 2014, Western invoiced Amec

$20,440, “primarily” for “necessary additional demolition work for [modification 1].”

Amec’s best evidence of the nature of this work seems to be the description in Western’s

December 2013 invoice: “December Billings for Lewis Restoration + Citadel demo.” Amec

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does not describe any modified work from January 3 to February 3. Regarding the eightyfive days from February 4 through April 29, 2014, Amec states that “Western was unable to

segregate its costs across separate[] scopes of work because of the accelerative environment

and because . . . [Amec knew that] separately tracking costs takes additional hours and

decreases productivity.” Amec cites here testimony of its administrative project manager,

who said in part, “[Amec] wanted the [cost] tracking to be done by [Western] in detail, and

[Western] refused to do it. . . . We were over a barrel. We had to get the project finished.”

For the sixty days from April 29 to substantial completion on June 27, 2014, Amec states that

“[t]he only work performed by Western . . . was in the Citadel and the overwhelming

majority was [modification 1 work],” but Amec cites no evidence for the second statement.

Amec states that after January 2, 2014, Western invoiced Amec on a time and

materials basis. “As a result,” Amec writes, Amec’s project superintendent “had to work

with” Amec’s experts “to allocate those costs to various scopes of work, including

[modification 1].” We are troubled by how Amec presented this retrospective allocation at

the hearing. The superintendent testified that he communicated with Amec’s experts “[f]or

about a week,” forwarding project status reports, a contemporaneous spreadsheet of time and

materials, meeting minutes, and other documents, “to allocate what was being performed in

scope versus what was being performed out of scope.” This description of the review effort

was arguably ambiguous, as Amec does not allege “out of scope” work under modification 1.

It claims costs of formally modified work. The superintendent did not testify at the hearing

about why anyone allocated any particular labor to particular requirements. Indeed, when

shown a schedule of Amec’s allocations of Western’s billings, the superintendent said he had

not seen the document and did not help to prepare it. Respondent’s counsel had no reason

to cross-examine him about any specific allocation. Later, however, an expert for Amec

testified that he had “worked with [the superintendent], who was intimately familiar with

[Western’s] work activities . . . to . . . allocate the hours [from February to April 2014]

between base contract work and [modification 1] work.” The expert adopted what he said

were the superintendent’s allocations of labor hours as a basis for his expert testimony. As

a result of this vague and possibly conflicting testimony, the Board is left with no explanation

of the allocations and no basis to assess whether the allocations seem reasonable.5

The agency focuses on the procurement of rebar for modification 1 work in 2014.

Amec told the Park Service in a January 9, 2014, meeting that it “expect[ed]” Western to

have a vendor “under contract soon for the rebar shop drawings and fabrication.” A second5

A similar thing happened in the testimony of the expert who supported

Pullman’s claim against SSG. That expert testified that she based some estimates on

“discussions with” Pullman’s project manager, who did not testify about any specific

numbers they discussed.

CBCA 5168, 6298

tier subcontractor took measurements at the site for rebar on January 14. After two rejected

submittals, the agency approved Amec’s rebar shop drawings on February 27. Rebar was

delivered in stages between March 13 and March 20. A second-tier subcontractor began

installing it on April 2. Western began pouring concrete for the B and C block repairs on

April 10, one day after the agency accepted beneficial occupancy of the shower room.

The agency acknowledged substantial completion as of June 27, 2014. No one

explained why the agency withheld $511,000 in liquidated damages for 512 days of delay.

VI.

The Claims and Appeals

In March 2015, Amec requested an equitable price adjustment of $12,723,467,

including the liquidated damages, and an extension covering the entire period of delay.6

Amec certified the REA as a claim in August 2015. Two central contentions of the claim

were that the Park Service undercompensated Amec under modification 1 and that Amec

“was ultimately forced by the NPS to terminate SSG . . . which required that AMEC Foster

Wheeler find another subcontractor to complete SSG’s (and Pullman’s) scope of work.”

Amec’s theories of recovery included constructive change, defective specifications, and

breach of the implied duty of good faith and fair dealing, although the claim did not specify

which agency actions allegedly breached that duty.

The contracting officer denied the claim in December 2015. Amec filed a timely

appeal in February 2016 (CBCA 5168). Amec’s complaint contained six counts, divided,

confusingly, into “Pullman’s claim,” “Spectrum’s claim,” and “Amec’s claim.”7 Counts one

and two alleged “compensable change” and breach of the implied duty of good faith and fair

dealing “on behalf of Pullman.” Counts three and four alleged the same theories “on behalf

of” SSG. Counts five and six asserted the same theories under Amec’s name.

During discovery, Amec decided to allege alternative grounds for largely overlapping

relief. In August 2018, Amec submitted a new certified claim to the contracting officer for

$13,236,781. The theories of this claim were that the Park Service breached the task order

Amec alleged 521 days of compensable delay in the REA and in the complaints

filed in both of these appeals. It now claims 450 days.

This is confusing because a “claim” under a government contract must be by

“one of the contracting parties.” 48 CFR 2.101 (2015); see also Erickson Air Crane Co.

v. United States, 731 F.2d 810, 813 (Fed. Cir. 1984) (briefs that gave only “lip service to the

rule that the subcontractors had no privity of contract with the government” were “confusing

and difficult for the court to follow”).

CBCA 5168, 6298

by withholding superior knowledge before award about the condition of the beams

supporting the B and C blocks and by negligently preparing the project cost estimate by

omitting the “degradation factor,” and that the agency breached a “pre-award duty of good

faith and fair dealing” by those same actions.

The contracting officer denied this second claim in October 2018. In another letter

the same day, he asserted a government claim for a net amount of $118,506.47, consisting

mainly of a credit for the deletion, in modification 1, of cathodic protection from the

originally awarded B and C block beam repairs. In its appeal from both 2018 decisions

(CBCA 6298), Amec abandoned the “pre-award duty” theory by filing an amended complaint

adding only superior knowledge and “negligent preparation of estimate” counts. The Board

denied a motion by the respondent, the Park Service’s parent agency, to dismiss those two

counts from CBCA 6298 as time barred and for failure to state a claim for relief. Amec

Foster Wheeler Environment & Infrastructure, Inc. v. Department of the Interior, CBCA

5168, et al., 19-1 BCA ¶ 37,272.

VII.

The Litigated Claims

The parties included more than 3000 exhibits in the appeal file. The Board received

testimony from twenty-four people, including ten live witnesses for each side at the hearing.

Each party presented four expert witnesses. Notably, two of the experts in Amec’s case

expressed no views on compensation owed to Amec. Constance Riedinger of Riedinger

Consulting was examined by a lawyer retained by SSG and supported only an SSG claim

against Amec. Denise Martini of Exponent was examined by a lawyer retained by Pullman

and limited her opinions to amounts that Pullman alleges SSG owes to Pullman.

Delay Contentions

The parties agree in large part on the project’s critical path. They agree in part that

certain events caused critical path delay. They disagree about who was responsible for those

delaying events. Both parties identify the critical path using Amec’s first revised baseline

schedule, approved in August 2012.8 They broadly agree that delays were caused by the need

to address the cracks in the B and C block beams via what became modification 1, and by the

transition from SSG to Western as Amec’s subcontractor. Amec assigns responsibility to the

Park Service for other added time. It blames the agency for delayed approval of shoring

submittals, for the fact that SSG stopped work in May 2013, and for an alleged shortage of

qualified workers during Western’s time on the project. Amec also argues that the Park

The experts who discussed SSG’s and Pullman’s delay claims did not use this

updated schedule. We do not rely on their delay opinions in any respect.

CBCA 5168, 6298

Service caused forty days of project delay by telling Amec to prioritize completing work in

the shower room over completing modification 1 work. The agency, for its part, says Amec

was responsible for delaying demolition in 2012 and modification 1 work in 2014.

Amec’s schedule expert, Neil Gaudion of FTI Consulting, testified that the critical

path of Amec’s first revised schedule, showing completion in January 2013, ran through the

repairs in the shower room. He concluded that soon after the cracks were discovered in the

B and C block beams in August 2012, the critical path shifted to that area of work, which

later became modification 1 work, and it stayed there for the rest of the project. However,

he considered approval of all shoring submittals a critical milestone and assigned the Park

Service responsibility for forty-four days of delay between the approval date in Amec’s

schedule, July 29, 2012, and the approval of the D block shoring submittal on September 10.

Mr. Gaudion next identified 162 days of critical path delay associated with the

unforeseen B and C block conditions and repair work, from September 11, 2012, to February

20, 2013, when work under modification 1 began. Of those 162 days, Mr. Gaudion opined

that Amec was responsible for forty-three days, associated with submitting price proposals

in October and November 2012, while the agency was responsible for 119 days.

Mr. Gaudion identified four other critical path delays, totaling 312 days. These were:

(1) forty-five days for SSG’s work stoppage under modification 1 before Amec terminated

the subcontract on June 20, 2013; (2) fifty-five days from October 10 to December 4, 2013,

when Western, according to Amec, could not find enough qualified laborers to start work

under modification 1; (3) forty days from December 26, 2013, to February 4, 2014, when

Amec diverted resources to the shower room and performed no modification 1 work; and

(4) 172 days of extended work in the B and C blocks, as compared to the duration in the 2012

as-planned schedule. Mr. Gaudion deemed the agency responsible for 293 of those 312 days

and Amec responsible for nineteen days, due to Western’s inefficiencies. In all, Mr. Gaudion

testified to 450 days of compensable delay and no excusable but non-compensable days.

The agency’s schedule expert, Joseph Andres of LitCon Group, supported 145 days

of excusable delay and no compensable delay. He attributed to Amec a twenty-eight-day

delay in the start of demolition in the B and C blocks, from the scheduled date of July 25,

2012, to August 22, due to a delay in lead abatement, a precursor activity.9 This implies that

the cracks in the B and C block beams could have been found earlier. Mr. Andres next

Our summary of Mr. Andres’s opinions is subject to the caveat we raise three

paragraphs below that, by “delay,” he seems to mean here not critical path delay, but

something like “gross delay” or potential delay, which must be offset in each period by the

amount of any schedule float that was available in that period.

CBCA 5168, 6298

identified 186 days of delay from the discovery of the cracks on August 28, 2012, to the start

of work under modification 1 on February 20, 2013. Of those 186 days, he assigned the Park

Service responsibility for 105 days and Amec seventy-one days, for preparing price proposals

too slowly and for not starting the changed work immediately upon receipt of modification 1

and the approved shoring plan for the B and C blocks in early February 2013.

Mr. Andres agreed with Mr. Gaudion that SSG’s departure and the transition to

Western delayed the project. He assigned Amec responsibility for 214 continuous days of

delay from May 2, 2013, when SSG stopped work on modification 1, to December 2, when

Western began modification 1 work. Around early 2014, Mr. Andres’s view of the critical

path diverges from Mr. Gaudion’s. Mr. Andres assigned Amec responsibility for ninetyseven days of delay running from December 26, 2013, when Amec began working in the

shower room rather than on modification 1, until April 2, 2014, when rebar installation for

the modification 1 work began. (Mr. Gaudion put the end of the delay that began on

December 26, which he blamed on the agency, at February 4.) Mr. Andres concluded from

project correspondence that SSG had been expected to coordinate with Pullman to prepare

rebar shop drawings and should have ordered the rebar in 2013, which would have saved

Amec the lead time for the drawings and ordering in 2014.

Mr. Andres concluded that Amec spent 187 days on modification 1 work. He deemed

this to represent a “net added duration” of 115 days, because Amec’s August 2012 baseline

schedule showed repairs of the B and C block beams lasting seventy-two days. He assigned

the agency responsibility for ninety of the 115 “added” days. He testified that his firm “just

looked at” schedules prepared during the failed negotiations of modification 1 and “kind of

made a reasonable call” as to how long “everyone was thinking [the changed work] was

going to take at the time. It seemed . . . everyone was kind of triangulating on 90 days . . . .

Honestly, I don’t know how anyone could estimate at this point how long it really should

have taken, but that was in our estimation a reliable number [in early 2013].”

We find Mr. Andres’s summary of his delay conclusions confusing. He added up the

days of “delay” that he attributed to each party (435 days to Amec and 195 days to the

agency), which were 630 days in total. He then subtracted from each party’s total days of

“delay” what he called the total “float” for the affected days under Amec’s first revised

baseline schedule (subtracting sixty-eight days from Amec’s total and fifty days from the

agency’s total), resulting in bottom lines that sum to the total days of project delay, 512.

Because work with float is not on the critical path to begin with,10 it would make more sense

to distinguish “float” from “delay” within each affected time period, rather than in one

subtraction at the end of the analysis. This wrinkle in Mr. Andres’s approach was not

E.g., Haney v. United States, 676 F.2d 584, 595 (Ct. Cl. 1982).

CBCA 5168, 6298

clarified at the hearing or in the agency’s post-hearing brief, which cites all 630 days of

“delay” he found without specifying how or why the “float” got backed out of the 630 days.

Mr. Andres opined that none of the 145 days of delay for which he assigned

responsibility to the agency were compensable. Acknowledging that, in this respect, his

opinion involves “one of the most contested issues in forensic schedule analysis,” Mr. Andres

testified that all 145 days were “concurrent” with delays caused by Amec, in that, “but for

the delays” due to modification 1, the work in “the shower room would have delayed this

project” because the shower room repairs, although not on the critical path, were “nearconcurrent” with modification 1 work until Amec turned the shower room over to the agency

and restarted the modified work in early April 2014.

Quantum Contentions

Amec’s Claims

In a required prehearing quantum schedule, Amec divided its claimed dollar amounts,

before interest, into (1) “direct damages” totaling $3,330,341; (2) an “[SSG] REA” totaling

$6,390,533; (3) “contract administration and REA preparation costs” of $566,058;

(4) $885,656 for “extended general conditions”; (5) markups on project costs of three percent

for overhead and four percent for profit; and (6) release of $450,000 in liquidated damages,

for a total of $12,342,035. Amec subdivided the “SSG REA” as follows:

Pre-termination costs

Post-termination costs

Post-termination (senior management)

Surety costs

SSG REA preparation costs

Pullman REA

Markup on Pullman REA

$2,622,662

$426,535

$133,559

$1,227,904

$185,640

$1,418,366

$375,867

In its post-hearing brief, Amec rearranged its itemization. The figures in Amec’s brief

are difficult to track to its prehearing statement. All of the amounts itemized in the brief are

now called “direct damages” to Amec. The reference to SSG’s REA is gone. Amec seeks

a total of $8,284,223, including delay costs and remission of liquidated damages, for the

change under modification 1; $2,707,859 for the “forced termination” of SSG; and

$4,705,310 in “efficiency and productivity damages,” for an apparent grand total before

interest of $15,697,392. This represents an increase of more than $3.3 million from Amec’s

CBCA 5168, 6298

prehearing statement, assuming none of the subcategories overlap.11 Of note, Amec’s posthearing itemization includes “extended general conditions and delay costs” of $665,226 and

$338,000 (338 days) of improperly assessed liquidated damages caused by modification 1.

Amec itemizes another $220,430 of “general conditions” and $112,000 (112 days) of

liquidated damages associated with the termination of SSG, making its total delay claim 450

days, matching Mr. Gaudion’s total.

Amec emphasizes repeatedly that the appeal file contains “actual, unchallenged

invoices” as proof of incurred costs. That is substantially true. There is far less evidence of

proximate causation, linking the incurred costs to changes of the work under the task order.

The Government Claim

The agency asserts two credits, offset by two upward price adjustments. We can

disregard the price increases calculated by the contracting officer as they are not claims. The

agency seeks $129,307.96 for deleting cathodic protection of the cast iron beams in

modification 1 and $21,525.85 for a later change to modification 1 that allowed Amec to

leave the lower flanges of those beams intact inside walls. Both dollar amounts are based

on estimates prepared for the contracting officer for price negotiations.

Discussion

Nature of the Case

We have jurisdiction under the Contract Disputes Act, 41 U.S.C. §§ 7101–7109

(2012), to decide Amec’s timely appeals from the contracting officer’s December 2015

decision and from the two decisions issued in October 2018. The theories that Amec raises

in its second appeal, however, do not affect our decision. Amec alleges there that the Park

Service breached a duty to Amec by withholding superior knowledge about the cracks in the

B and C block beams and by not telling bidders about the “degradation factor” that the

agency’s engineer used when preparing preliminary cost estimates. Even if we found merit

in one or both of those allegations, Amec did not present a quantum case that could support

an award of breach damages specifically for the agency’s conduct prior to award.

The Board ordered that only “documentation of costs or damages” that Amec

cited in its prehearing statement would “be admitted in evidence.” The agency did not object

to any evidence on that basis. Amec does not specifically explain what new evidence

supports its post-hearing quantum increase.

CBCA 5168, 6298

Amec seems to suggest at times that it would not have bid on this project, or that it

would have bid a higher price, had it known what it alleges the agency knew. Amec’s project

superintendent testified that the change addressed in modification 1 was “completely

avoidable” and “caused the project to fail before it even started.” Amec did not offer

evidence of an alternative bid price. Nor did Amec make a case for disgorgement of

restitution “to restore [the agency] to the position it would have been in had there never been

a contract to breach.” California Federal Bank, FSB v. United States, 245 F.3d 1342, 1350

(Fed. Cir. 2001); see Land Grantors in Henderson, Union, & Webster Counties v. United

States, 81 Fed. Cl. 580, 609–11 (2008). Instead, Amec relies on the same quantum evidence

in the second appeal (CBCA 6298) as in the first appeal (CBCA 5168)—evidence intended

to show that the Park Service should pay Amec more for changes of the task order.

As summarized in its post-hearing brief, Amec seeks an award based on “(i) the actual

costs incurred to do . . . additional work, (ii) inefficiencies resulting from resequencing work

after construction began, (iii) an ever-changing work force . . . , and (iv) an increase in

Amec’s overhead/general conditions to manage the [work].” Amec’s case for recovery thus

stands or falls on whether Amec can establish that the Park Service changed the task order

and did not pay Amec enough for the changes. Whether the agency knew, or should have

known, or should have warned Amec about project conditions makes no difference now,

because Amec offered no separate method to calculate breach damages for a lack of warning.

Cf. AT&T Communications, Inc. v. Perry, 296 F.3d 1307, 1312 (Fed. Cir. 2002) (the

contractor sought “partial restitution” under a superior knowledge theory); Womack v. United

States, 389 F.2d 793, 802 (Ct. Cl. 1968) (considering but denying “the equitable relief of

reformation” for a negligent estimate); Fairfax Opportunities Unltd., AGBCA 96-178-1,

98-1 BCA ¶ 29,556, at 146,526 (finding that, under a requirements contract, “the . . . fair[est]

and [most] accurate measure of recovery” for a negligent estimate was “to reprice the unit

price based upon the estimate the Government should have provided”).

This means that we can fully address Amec’s case by addressing the claims presented

in the first appeal for the costs and duration of modified work and allegedly changed work.

It does not matter whether we treat the dollars and days that Amec seeks as an equitable

adjustment or as breach damages. Either way, they are exactly the same costs and time, and

we would use the same standards of proof. See Nager Electric Co. v. United States, 442 F.2d

936, 946 (Ct. C1. 1971) (“Equitable adjustments in this context are simply corrective

measures utilized to keep a contractor whole when the Government modifies a contract.”);

Willems Industries, Inc. v. United States, 295 F.2d 822, 831 (Ct. Cl. 1961) (noting breach

damages must be proven “with sufficient certainty so that the determination of the amount

. . . will be more than mere speculation”); Misleading Specifications: What’s In a Name?,

33 Nash & Cibinic Rep. ¶ 18 (2018). We need not adjudicate Amec’s breach theories of

superior knowledge or negligent estimation. This is a changes case. The agency’s preaward

knowledge is irrelevant to the case as litigated.

CBCA 5168, 6298

Two changes to the project dominate Amec’s briefing: (1) modification 1 and (2) the

replacement of SSG with Western. Amec says the Park Service is responsible for both

circumstances. The agency accepts liability for the change addressed in modification 1 but

it challenges Amec’s cost and delay evidence. The agency accepts no responsibility for

SSG’s performance issues or for the decisions to terminate SSG’s subcontract and to bring

on Western. We find Amec responsible for the problems for which Amec blamed SSG

during the project, leading up to and including the termination for default. This conclusion,

in turn, gravely undermines the evidence that Amec cites in seeking additional time and

money for performing modification 1 and alleged constructive changes.

II.

Responsibility for Terminating the Subcontract

Amec does not allege that a contracting officer directed it to terminate SSG’s

subcontract. Instead, Amec writes that the Park Service “placed an enormous amount of

pressure on Amec to terminate SSG” and that the “severe underfunding and refusal to grant

any additional time to perform [modification 1] contributed to the termination of SSG.” The

strongest evidence against faulting the agency for the termination of the subcontract is “the

dog that didn’t bark.” See, e.g., Johnson v. Wells Fargo Bank, N.A., 744 F.3d 539, 543 n.6

(8th Cir. 2014) (citing Arthur Conan Doyle, “Silver Blaze,” in The Complete Sherlock

Holmes (1938)). Amec was a diligent and assertive correspondent with the contracting

officers and with SSG. The appeal file is replete with its letters and emails. Yet we see no

contemporaneous document in which Amec cited agency “pressure” as the reason it

continually complained about SSG’s performance and then terminated the subcontract.12

On the one occasion, before the issuance of modification 1, that Amec passed along

a suggestion by SSG that the agency had delayed the project, Amec promptly disavowed the

comment when the contracting officer objected. Amec pointed the finger at SSG for not

timely finishing the shoring submittals “independently.” Amec asserts that it experienced

“pressure” when it received “numerous Letters of Concern both immediately before and after

the period of performance expired” on January 31, 2013. Amec does not argue, much less

show, that the letters of concern were unjustified or unfair. When Amec received the letters,

it was expressing substantially the same concerns about delay to SSG in similar terms.

Amec cites evidence that agency personnel asked Amec in 2012 how it planned

to deal with the problems Amec was having getting SSG to perform. We have not

summarized that evidence because those inquiries were reasonable, were not “pressure,” and

obviously did not create pressure because Amec did not terminate SSG’s subcontract for

several more months.

CBCA 5168, 6298

Amec argues that “[b]y not granting days in Unilateral Mod No. 1, NPS accelerated

Amec and increased the pressure on SSG in an already difficult environment.” That is not

what Amec was saying at the time. Two weeks after it received modification 1, Amec

advised SSG that SSG had “[f]ail[ed] to provide sufficient substantiation” for “reasonable

review by AMEC or NPS for any additional period of performance.” Amec told SSG again

two months later, in April 2013, that Amec had “not received a schedule analysis or any . . .

documentation that would support SSG’s position that a Period of Performance extension is

warranted.” Amec repeated this advice in late May 2013. We see no reason to doubt what

Amec was telling SSG. Amec never sent the agency a time impact analysis to justify an

extension during SSG’s time on the project. Amec did not even submit a schedule containing

a fragnet showing the impact of modification 1 on the critical path until May 2013, by which

time SSG had already unilaterally stopped working on modification 1. The Park Service did

not constructively accelerate the project during SSG’s performance, as Amec did not submit

“a timely and sufficient request for an extension” during that period. Fraser Construction

Co. v. United States, 384 F.3d 1354, 1361 (Fed. Cir. 2004).

Amec adds that “severe underfunding” of modification 1 “also played a significant

role in forcing the termination of SSG.” Again, we see no evidence that Amec told either the

Park Service or SSG this at the time. Amec sent SSG a four-page termination letter in

June 2013 citing eight “major categories” of “breach” and expressing “regret[]” that

termination was “necessary” without once suggesting that the price dispute about

modification 1 was “forcing” Amec to act. Likewise, in its September 2013 response to the

agency’s show-cause letter, when it had every incentive to argue against termination for

default, Amec argued that “lack of funding” had “significantly impacted the project” and was

“beyond Amec’s control,” but it did not assert for the record that the price of modification 1

had compelled Amec to terminate SSG’s subcontract. Quite the opposite, Amec praised

itself to the agency for “proactively terminat[ing]” the subcontract of “disrupti[ve]” SSG.

While disputes between Amec and SSG about modification 1 affected their

relationship, we see no basis to find that the unilateral pricing of modification 1 caused or

“forced” Amec to terminate SSG’s subcontract for default, or even that the termination

solved a business problem that modification 1 created. Amec knew it was obligated to

proceed with modification 1 and to seek any additional compensation later. E.g., Discount

Co. v. United States, 554 F.2d 435, 440 (Ct. Cl. 1977). Amec’s administrative project

manager testified that Amec did not like this and believed the agency was “using [Amec] as

the bank to fund the rest of the work.” He added that, although the agency paid all of Amec’s

invoices for modification 1 work, “we [at Amec] don’t have a deposit box where we can get

money for specific projects,” and Amec intended to stop paying SSG for the modified work

once the costs of the work exceeded the modification price. Terminating could not have been

a solution to Amec’s funding problem. Immediately after the termination, Amec promised

CBCA 5168, 6298

the agency that it would complete the job with another subcontractor. Amec paid Western

to finish the modified work. Amec did not stop funding that work.

Our finding that the Park Service did not cause Amec to terminate SSG’s subcontract

eliminates some categories of relief from the case entirely. The agency is not liable for any

of the $2.7 million that Amec seeks for “forced termination,” for any delay resulting from

the termination, for “surety costs,” or for any other added costs that Amec incurred by

completing the project with Western rather than with SSG. Those unrecoverable categories

are substantial, and Amec did not offer an alternative method to calculate a quantum if we

rejected its forced termination theory. Like a predecessor board, this “Board is not disposed

to search the voluminous record in this case and do counsel’s work for them.” Coffey

Construction Co., VABCA 3432R, et al., 1993 WL 218210 (June 16, 1993). We nonetheless

proceed to address the relief that Amec seeks in its post-hearing brief under the headings of

delay, unpaid modification 1 costs, and loss of efficiency and productivity.

III.

Delay

We begin with delay. Amec “has the burden of proving the extent of the delay, that

the delay was proximately caused by government action, and that the delay harmed [Amec].”

Wilner v. United States, 24 F.3d 1397, 1401 (Fed. Cir. 1994) (en banc). Only delay of

activities on a project’s critical path results in overall delay. See Affiliated Western, Inc.

v. Department of Veterans Affairs, CBCA 4078, 17-1 BCA ¶ 36,808, at 179,403. The parties

nominally agree that, starting in late August 2012, the critical path ran through the work

items affected by modification 1. Experts for both sides, however, assigned responsibility

to the other party for delay predating the discovery of the cracks in late August 2012.

Amec’s expert blamed the agency for a delay starting on July 29 in the approval of shoring

submittals, while the agency’s expert faulted Amec for a delay in lead abatement starting on

July 25. We find that no events affecting the B or C block work before the discovery of the

cracks on August 28 can be considered to have affected the as-built critical path, as that area

of work shifted onto the as-built critical path only on August 28.

From August 28, 2012, forward, Amec proves thirteen days of excusable delay and

117 compensable days. Our breakdown is as follows. Under the principle that “all delay due

to defective or erroneous Government specifications [is] per se unreasonable,” Chaney &

James Construction Co. v. United States, 421 F.2d 728, 732 (Ct. Cl. 1970), we agree with

Amec’s expert that the agency caused most of the delay from August 28 until Amec could

have started work under modification 1. We deduct, as that expert did, forty-three days

CBCA 5168, 6298

caused by Amec’s slow turnaround of price proposals.13 We agree with the agency, however,

that Amec did not prove it could not have started the modified work on February 4, 2013,

rather than on February 20.14 We attribute a sixteen-day delay to Amec. We agree with

Amec’s expert that review of shoring submittals caused delay—but unlike him, we find Amec

responsible for the delay in submittal approval until September 10, 2012. Amec argues at

length that the task order left the shoring unspecified and that the agency could have provided

useful load data sooner. Amec does not refute what Amec itself told SSG in 2012—that

under the plain terms of the shoring specification, the contractor was “responsible for . . .

both the plan and the design, including all necessary testing, surveying, [and] data

collection.” Amec caused concurrent delay by not gathering the necessary data for the

shoring submittals.15 From August 28, 2012, until February 20, 2013, we find 117 days of

agency delay, fifty-nine days of contractor delay, and thirteen days of concurrent delay.

We reject the agency’s contention that all of the agency-caused delay was offset by

concurrent, contractor-caused delay. We recognize that “the exact definition of concurrent

delay is not readily apparent from its use in contract law.” George Sollitt Construction

Co. v. United States, 64 Fed. Cl. 229, 238 n.8 (2005). We do not doubt that the agency’s

expert relied on one possible definition in opining that “near-critical” work in the shower

room was “concurrent” with the modification 1 work until April 2014 and would have

delayed the project if modification 1 had not. The problem we see with that approach is that

the alternative delay did not materialize. To analyze delay claims in a manageable fashion,

we focus on the fact that “only construction work on the critical path ha[s] an impact upon

the time in which the project [i]s completed.” Mega Construction Co. v. United States,

29 Fed. Cl. 396, 425 (1993), quoted in Affiliated Western, 17-1 BCA at 179,403. The parties

agree that the shower room repairs were not critical after August 2012. That work thus did

not result in delay. We limit our analysis to the critical path delay that happened.

We cannot allot responsibility for the remainder of the delay, from February 20, 2013,

until project acceptance on June 27, 2014. Amec’s subcontractors were performing

modification 1 work at the beginning and at the end of this 492-day period, but we see no

The agency’s expert said Amec caused fifty-five days of delay during the

modification negotiations, but he tended to rely on deadlines set by the contracting officer

without citing evidence that those deadlines were necessarily reasonable.

Amec says “SSG procured shoring” after February 4 but it cites no evidence.

Amec argues that it “reasonably construed the language of the [shoring]

specification.” We agree. The interpretation that Amec now puts forward is SSG’s

interpretation, not Amec’s.

CBCA 5168, 6298

basis in the record to determine how much time modification 1 should have added to the

project, had the modified work been done promptly and in sequence, rather than with the

repeated stopping and starting that resulted from Amec’s dealings with SSG and Western.

Neither party offered us a “clean,” original schedule of the modification 1 work with

logic ties. This is presumably because SSG, which generated the schedules for Amec, did

not build a fragnet for modification 1 into a schedule update until around the time that SSG

stopped performing the modified work in May 2013, which was ten weeks after the work had

started and seven weeks before Amec terminated SSG’s subcontract.

Lacking a contemporaneous baseline schedule of the tasks required by modification 1,

both sides’ experts estimated the time impact by comparing the actual, as-built duration of

the modified work with the planned duration of the unmodified work in the B and C blocks

in the August 2012 schedule. Although both experts made adjustments, this approach is only

a minor variation on the disfavored “total time” methodology using “the difference in time

between the planned completion date and the actual completion date.” Turner Construction

Co. v. Smithsonian Institution, CBCA 2862, et al., 17-1 BCA ¶ 36,739, at 179,082;

see also Cogefar-Impresit U.S.A., Inc., DOT BCA 2721, 97-2 BCA ¶ 29,188, at 145,202

(“[A] schedule must reflect actual performance to be a reliable basis for evaluating delay.”).

The experts’ approach is arguably less helpful than a typical “total time” analysis, in that,

here, the as-built work was not simply “impacted as-planned” work,16 it was formally

modified work that happened to be in the same location. We agree with the agency’s expert

that without evidence of an original plan for the work under modification 1, we “don’t know

how anyone could estimate at this point how long [that work] really should have taken.” We

suppose it would have taken longer than the repairs in the B and C blocks under the task

order as awarded, but how much longer, we could only speculate.

This weakness in Amec’s proof of delay due to performing modification 1 becomes

fatal given that we find Amec responsible for all of the events that Amec says delayed the

modified work. Amec’s schedule expert deemed the Park Service responsible for SSG’s

work stoppage in May and June 2013.17 We disagree. Amec was the contractor. As far as

the agency was concerned, the stoppage was Amec’s, not SSG’s. Amec focuses on SSG’s

See, e.g., Craft Machine Works, Inc., ASBCA 47227, 97-1 BCA ¶ 28,651.

Although Amec told the agency in June 2013 that it had “suspended” work in

the B and C blocks due to outstanding information requests, Amec’s expert disagreed. He

testified that “the records . . . show that SSG did not perform [modification 1] work because

of [SSG’s] concern about being paid for the work and the impasse with the Park Service”

about a “time extension. . . . So, to me, that’s what this delay is.”

CBCA 5168, 6298

financial condition but it makes no serious argument that Amec had a right to halt work

under a government contract or that the agency’s conduct was so oppressive that Amec was

under duress and should be excused from its duty to proceed. See, e.g, Rumsfeld v. Freedom

NY, Inc., 329 F.3d 1320, 1329–30 (Fed. Cir. 2003) (listing the elements of duress). Amec’s

expert also blamed the agency for Western’s alleged inability to hire enough laborers when

mobilizing in the fall of 2013. We disagree. We have not discussed Western’s labor

situation and are not sure that the evidence supports a labor shortage as the cause of this

delay, but this ultimately does not matter, as we do not hold the agency responsible for the

fact that Western replaced SSG and was hiring in late 2013 in the first place.

We further find, agreeing with the agency’s expert, that a failure to order rebar in 2013

delayed the modification 1 work from December 26, 2013, to April 2, 2014. Amec says it

was informally directed to focus on the shower room for part of this delay period, until

February 4, and an Amec witness testified that no one could measure for rebar in the B or C

blocks until the concrete was demolished. We need not resolve the first contention because

the record does not support the second one. SSG and Pullman corresponded about Pullman’s

desire to measure for the rebar in March and May 2013. Amec specifically criticized SSG

in its June 2013 termination letter for not getting rebar ordered after the “change in site

conditions.” We see no one saying in 2013 that it was impossible to take the measurements.

Procuring rebar in 2014 delayed the project.18

In all, we find Amec responsible for at least 311 days of delay of work on

modification 1 (May 2 to December 2, 2013—the days between when SSG stopped work on

modification 1 and Western started—and December 26, 2013, to April 2, 2014), but we

cannot conclude that all of the other days of modification 1 work must have been necessary

to complete that work. The record gives us grave doubt that the modified work proceeded

in anything like an efficient manner. SSG worked on modification 1 for Amec from

February to May 2013, then stopped. We have quoted correspondence from that time in

which SSG and Pullman accused each other of delaying the project. In its June 2013

termination letter, Amec wrote that SSG’s “inability . . . to provide sufficient . . . resources

and to direct” Pullman had “caused irreparable damage to the Schedule.” Western apparently

resumed the work in December 2013, stopped, then restarted and completed the modified

work in April, May, and June 2014. Quoting a witness, Amec emphasizes in its post-hearing

brief that “Western had limited time to become familiar with the Project and its complexity

Amec cites no evidence of direction to finish the shower room at the cost of

project delay. It cites testimony that the agency was interested in the shower room, and an

assertion Amec made in March 2014 that it had “sacrificed the schedule to get the shower

room completed, but there is no benefit since the LDs will not stop.” Whatever the nature

of the discussions about the shower room, they were not a primary cause of delay.

CBCA 5168, 6298

before mobilizing [in late 2013], which caused Western to learn the Project ‘on the fly.’” We

lack confidence that Western found all of the job in good order when it took over for a

subcontractor that had received a four-page termination letter six months earlier. Over a

period of sixteen months, the modified work consumed about six months. The agency is

responsible for issuing modification 1 but not for the erratic way the work progressed.

Either as relief for breach or as an equitable adjustment, Amec would be entitled to

an extension for the delay “proximately caused” by modification 1 without fault on Amec’s

side. Wilner, 24 F.3d at 1401. Lacking a reliable time projection at the outset, and

considering all of the contractor-caused disruption we describe above, we cannot estimate

a reasonable extension by “more than mere speculation.” Willems Industries, 295 F.2d at

831. Although the agency, relying on its expert, volunteers ninety days as a fair ex ante

estimate of the duration of modification 1 work, we do not consider that a weighty admission,

as the agency also argues that none of the delay is compensable. The agency admits no

compensable delay, and we cannot make an award for delay caused by performing

modification 1 without evidence in the record to support such a finding.19

Amec proves entitlement to remission of $130,000 in liquidated damages for 117 days

of compensable delay and thirteen days of excusable delay. We can award no costs of delay.

We cannot award Amec its extended general conditions costs because Amec does not cite

actual costs. Its expert derived a daily rate from labor rates in the task order. “I’m using

contract rates because that’s what the parties have agreed,” he testified, adding that “outside

of the general conditions, [the quantum is] all based on actual costs and invoices and the

like.” He said an alternative approach would have been to start with Amec’s labor costs and

“load those with the appropriate overheads and profit to come up with a similar . . . number.”

The alternative approach would have been correct. The approach used was not. “[A]n

equitable adjustment of the contract price . . . compensate[s] for the actual cost of performing

the extra work.” ACM Construction & Marine Group, Inc. v. Department of Transportation,

CBCA 2245, et al., 14-1 BCA ¶ 35,537, at 174,156 (emphasis added). Similarly, expectancy

damages are the “costs . . . actually caused by the breach.” Energy Northwest v. United

States, 641 F.3d 1300, 1305–06 (Fed. Cir. 2011). A monetary claim for delay is a cost claim,

not a repricing claim. E.g., Yates-Desbuild Joint Venture v. Department of State, CBCA

3350, et al., 17-1 BCA ¶ 36,870; John Cibinic, Jr., James F. Nagle & Ralph C. Nash, Jr.,

Administration of Government Contracts 640–44 (5th ed. 2016). We must see evidence of

general conditions costs to award them. E.g., Turner Construction, 17-1 BCA at

179,066–68. Amec likewise does not cite actual bonding costs for the extension period.

Amec quotes the words “jury” and “verdict” twice each in its post-hearing

brief, in two quotations of Board decisions, but it does not argue for jury-verdict relief.

CBCA 5168, 6298

All of the compensable delay that we can quantify occurred while SSG was under

subcontract to Amec.20 Amec discusses SSG’s extended general conditions costs in a

convoluted fashion. It cites a cost report about which no one testified, which seems to show

that SSG incurred general conditions costs of about $1453 per day in 2012 and that the rate

rose by forty-five percent, to $2641 per day, in 2013. Amec offers no explanation for the

sharp increase. To quantify SSG’s delay costs, Amec focuses on four periods or

“subperiods” totaling 170 days. Amec seeks to apply SSG’s lower daily rate for the first two

intervals, in 2012, and the higher rate for the second two, in 2013. That is not how such

calculations work. Claimants can recover extended general conditions costs when

compensable delay causes them to remain on a project longer than planned. The general

conditions costs caused by the delay are the company’s average daily rate for the entire job

multiplied by the days of delay. E.g., Bell BCI Co. v. United States, 81 Fed. Cl. 617, 641

(2008), vacated in non-relevant part and remanded, 570 F.3d 1337 (Fed. Cir. 2009); Turner

Construction, 17-1 BCA at 179,087 n.20. Strictly speaking, SSG did not incur extended

general conditions costs in 2012. SSG would have been on the project until 2013 even with

no delay. It would make no sense to use only SSG’s reported 2013 daily rate, however.

Among other things, we cannot conclude that the higher rate accurately captures the daily

cost of delay. We might be able to run the numbers to reconstruct a weighted daily rate for

117 days of compensable delay, but given the thinness of the support for SSG’s general

conditions costs and the unexplained, wide variance in the reported costs over time, we

would essentially be speculating about the proper rate. We will not do so.

Amec also seeks, as delay costs allegedly owed to SSG, $186,598 for “extraordinary

management time,” $189,786 for “extended project management,” $145,460 for

“extraordinary senior management time,” and $133,559 for “senior management time” after

the termination. Amec presents none of these figures as functions of added days. Instead,

they are essentially amounts by which SSG overran its bid estimates. Amec does not explain,

among other things, on what basis Amec could owe such sums to SSG, how the days of

compensable delay proximately caused the overruns, or why we should not conclude that the

price of modification 1 compensated SSG for at least some of its management costs.

Elsewhere in its brief, Amec asserts in a short paragraph that modification 1 resulted

in “$366,233 [in] extended general conditions [costs] incurred by Pullman.” Amec cites no

evidence that Amec owes its subcontractor, SSG, such an amount, or that SSG owes the

amount to Pullman as a proximate result of the 117 days of compensable delay.

In sum, Amec recovers some liquidated damages but no delay costs.

An extension of 117 days would make the completion date May 28, 2013,

twenty-three days before Amec terminated SSG’s subcontract.

CBCA 5168, 6298

IV.

Additional Compensation for Modification 1

We turn to unpaid costs of modification 1. The unilateral issuance of modification 1

entitles Amec to a price adjustment equal to any excess of (1) the reasonable costs, with

reasonable markups, that the modification added to Amec’s project costs over (2) the

approximately $291,000 that Amec was paid for the modified work. See Nu-Way Concrete

Co. v. Department of Homeland Security, CBCA 1411, 11-1 BCA ¶ 34,636, at 170,698

(2010); Energy Northwest, 641 F.3d at 1305–06 (explicating an equivalent, “but-for”

measure of breach damages). For reasons we have given, Amec cannot recover any costs

attributable to SSG’s performance problems or to SSG’s departure and its replacement by

Western. The modification did not cause those costs. This leaves us fundamentally needing

to know what the modified work reasonably should have cost Amec using its original

subcontractor. Amec does not demonstrate that amount.

Amec’s briefing mixes delay costs with performance costs as such. Of the nine

subcategories of costs that Amec itemizes as “Amec’s [modification 1] costs incurred by

SSG,” at least four are time-related.21 We addressed time-related costs above. In addition,

Amec seeks $72,730 for SSG’s “senior management costs” which “were not invoiced to

Amec at the time they were incurred, but are nonetheless owed to SSG.” Again, we do not

know what Amec means. It cites no evidence that it owes SSG anything for unbilled home

office expenses, much less that it owes SSG such money because of modification 1.

Amec seeks $47,219.41 for “additional shoring costs incurred by SSG.” Amec cites

a document supporting that dollar figure, but the costs start in 2012, before the agency

imposed any new shoring requirements, and Amec does not show by how much, if at all, the

total exceeds what the agency paid for shoring under the task order as modified. Amec also

seeks on SSG’s behalf “a markup of Pullman’s REA [submitted to SSG] in the amount of

$128,687,” which Amec says is “a prorated portion of the total markup allocated to

[modification 1] damages.” SSG never progressed past demolition in performing

modification 1. We agree with the agency that Amec did not prove that Pullman performed

any modification 1 work as a second-tier subcontractor to SSG.22 We have no basis to

include any Pullman charges to SSG, or markups on such costs, in the costs of performing

the work required by modification 1. Amec seeks profit for SSG on SSG’s modification 1

These are the costs of SSG’s extended general conditions, extended “project

management,” “acceleration,” and extended Pullman labor. We consider acceleration costs

time-related here because recovery would depend on entitlement to an extension.

Pullman’s project manager testified in a deposition in the appeal file that

Pullman performed no work for SSG required by modification 1.

CBCA 5168, 6298

costs, but the price of modification 1 included some profit, and we cannot determine SSG’s

unpaid costs. Amec further seeks $88,871 that Pullman invoiced SSG for “designing and

preparing to install the cathodic protection” that was later deleted from the B and C block

repair work. Amec argues that it should recover this amount because “this de-scoping never

should have happened.” The deleted work was part of the original task order requirements.

The cost of that work is not a cost of performing modification 1. It would be double recovery

for Amec to be paid for it twice. At most, the cost of the work on cathodic protection could

affect the amount of any credit due the agency for deleting the requirement, which we

address below. We award no costs discussed in this paragraph.

We turn to the costs that Amec itemizes as costs it incurred when Western was

performing modification 1 work. Again, Amec includes time-related amounts for extended

general conditions and liquidated damages, which we address elsewhere. We also consider

to be at least partly time-related the $304,054 that Amec seeks as “additional Western labor

costs” over SSG’s subcontract labor rates. As discussed above, we do not fault the agency

for the fact that Western replaced SSG and was on the project from late 2013 to mid-2014.

The modification itself did not cause any labor premium experienced by Western.

Amec presents other costs allegedly incurred by Western to perform the modified

work (1) relying in substantial part on the troubling labor allocations we discussed above and

(2) as if the agency paid Amec nothing for the change, when, in fact, it paid Amec more than

$290,000. To take an example of the second issue, Amec notes that Western paid two rebar

vendors a total of $41,334. Amec argues, “NPS is responsible for these costs.” We do not

question the agency’s responsibility in general. Nor does the agency. The price of

modification 1 included rebar. Amec does not explain whether it spent more on rebar than

the amount the agency paid for rebar in the modification price, or if so, why it spent more.

One might argue (although Amec does not expressly argue this) that to calculate a price

adjustment, we should simply sum the costs allocable to modification 1 and then deduct the

price of the modification, but if we did that, we would lose sight of any basis to determine

whether particular costs were reasonably incurred within the scope of the modified task

order. In any event, the non-labor costs itemized by Amec for Western’s time on the project

are far less than what the agency paid Amec to perform modification 1. We see no basis to

award any such costs under a theory that Amec was not paid for them.

The real driver of Amec’s claim under modification 1 is Western’s labor. Here, we

lack any visibility. As an initial point, we reemphasize that even if we could identify every

dollar that Amec paid Western for labor to perform modification 1, that is not the measure

of recovery. The measure is what the modified work reasonably should have cost Amec,

beyond the probable cost of the awarded work in the B and C blocks, absent all of the

disruption on the contractor’s side, minus the price paid under the modification. It might

have been possible to work backward from Western’s costs to estimate what the modified

CBCA 5168, 6298

work would have cost if performed promptly and efficiently upon the issuance of the

modification, but Amec offers no such analysis. In any event, we cannot determine as a

starting point how much Amec paid Western for labor to complete modification 1.

When Western mobilized in late 2013, thirteen percent of the original task order work

remained. We are cited no evidence showing whether, at that time, the parties expected the

base work to require more than, less than, or about the same amount of labor as would the

half to three-quarters of the modified work that remained to be done.23 Amec offers no

reliable estimate of what it paid Western for modified work versus base work. We have a

blizzard of invoices but only assertions that we should allocate the invoiced costs to certain

work. Amec argues that the $20,440 invoiced by a second-tier subcontractor for “Citadel

demo” in December 2013 was “primarily” related to modification 1. Even that assertion

implies that the invoice probably covered some base work. After this, the evidence only gets

murkier. Ultimately, as discussed above, Amec offers only bare expert opinion to explain

its allocation of $1.7 million of Western’s billings under the time and materials subcontract

to modification 1 work. The purpose of expert testimony is to “‘help the trier of fact to

understand the evidence or to determine a fact in issue.’” Suffolk Construction Co.

v. General Services Administration, CBCA 2953, et al., 17-1 BCA ¶ 36,717, at 178,798

(quoting Fed. R. Evid. 702(a)). “Expert testimony is useful as a guide to interpreting . . .

facts, but it is not a substitute for them.” Brooke Group Ltd. v. Brown & Williamson Tobacco

Corp., 509 U.S. 209, 242 (1993); accord Ericsson Inc. v. Intellectual Ventures I LLC, 890

F.3d 1336, 1346 (Fed. Cir. 2018) (“[A]n unsupported opinion is not substantial evidence.”).

Amec provides us no evidentiary basis to reach our own conclusions as to how to divide

Western’s labor costs between base work and modified work.

Importantly, even absent modification 1, Amec would have been responsible for

repairing the B and C block beams. The costs caused by modification 1 are the incremental

costs above the costs of the awarded work. In this sense, not all labor in the B and C blocks

was “modification 1 work,” since some of it, including some concrete demolition and

installation, was required by the original task order. Amec tends to presume that any work

by Western in the B or C blocks was for modification 1, but for purposes of quantum, that

is not necessarily the case. Even in the period from late April to late June 2014, when all the

labor was in the B and C blocks, we cannot tell how much of that work we should consider

“modified.” The allocation problem is compounded by the fact that Amec seeks the costs

of various “Western inefficiencies.” As explained elsewhere, we find Amec, not the agency,

responsible for those inefficiencies.

Very roughly speaking, the parties’ statements in September 2013 that the

“progress” on base work was “87%” while the project as a whole was “over 85%” complete

would seem to indicate that the remaining work was mostly base work.

CBCA 5168, 6298

Amec argues that it is “not required to prove its damages with hyper-specificity” and

that the agency “cannot benefit from its own breach . . . by claiming that Amec has not

calculated its damages with perfect mathematical precision.” The evidence of modification 1

labor costs is not in the ballpark of reliability. Amec cites some relevant cases and comes

close to arguing—but never quite argues—that we should excuse it from the requirement to

prove the actual costs of the change on the grounds that it was infeasible to track the costs

contemporaneously. E.g., Delco Electronics Corp. v. United States, 17 Cl. Ct. 302, 321

(1989) (“In maintaining cost data, a contractor should segregate costs associated with the

change where it is feasible to do so, and especially where the contractor can anticipate

submitting a large claim.”). We see no evidence here of inability to segregate costs. An

Amec witness testified that Amec asked Western to invoice under a work breakdown but that

Western “refused to do it,” and that Amec accepted the rebuff because it was “over a barrel.”

We do not hold the agency responsible for Amec’s weak bargaining position.

A separate category of costs associated with modification 1 that Amec might have

recovered are the costs of preparing its 2015 REA. See Yates-Desbuild Joint Venture, 17-1

BCA at 179,710. A contractor may recover such costs provided it incurred them “for the

genuine purpose of materially furthering the negotiation process” and not primarily “to

promote the prosecution of a . . . claim against the Government.” Bill Strong Enterprises,

Inc. v. Shannon, 49 F.3d 1541, 1550 (Fed. Cir. 1995). Amec seeks $272,139 for “contract

administration costs, including REA preparation.” It offers no details in its brief, however,

regarding why the costs were incurred, stating only, “These amounts have been allocated to

[modification 1] by [Amec’s experts].” Our summary review of the invoices reveals that

many of the hours billed by consultants and lawyers are vaguely described or involved

disputes with or between subcontractors. In other instances, the subject matter is redacted,

suggesting anticipation of litigation. If there is a recoverable amount supported by the

invoices, Amec does not explain it, and expert opinion on recoverability is not evidence.

For these reasons, we award Amec no further compensation for unilateral

modification 1.

Lost Efficiency and Productivity

Amec seeks “efficiency and productivity damages” of $4,705,310. This figure was

not itemized in Amec’s prehearing quantum statement and appears to be substantially new.

Amec recovers none of it. Almost $2 million of this total is said to comprise “the amount

paid by Amec to Western for [base] work exceed[ing] SSG’s costs to complete at its time of

termination,” and “labor costs beyond SSG’s base scope labor rate.” We have explained why

the agency is not liable for such added costs of completing the project with Western.

CBCA 5168, 6298

In addition, Amec itemizes about $600,000 incurred by SSG “prior to termination in

addition to [costs SSG] incurred as a result of [modification 1].”24 First, Amec alleges that

“SSG incurred an additional $36,760.40 in labor hour costs due to [a] defective concrete mix

design.” No one testified that the concrete specification was “defective” or unworkable, and

there is no evidence of a defect.25 Amec proposed a deviation from the specification, which

was eventually approved. The agency could instead have insisted on “strict compliance”

with the task order. Nu-Way Concrete, 11-1 BCA at 170,696. No additional payment is due.

Next, Amec states that “SSG incurred $175,421.37” because “specified tools” such

as small pneumatic hammers “were ineffective for removal [of concrete] given the existing

hardness of the concrete.” No one testified that the specified tools made demolition

impracticable, as opposed to difficult. The record suggests that SSG underestimated the

difficulty of the project. In any event, no evidence supports the claimed amount. Amec

attributes $90,218.26 of that amount to a thirty percent loss of “efficiency,” for which Amec

cites no evidence, only an unsupported estimate by the expert retained by SSG. See Turner

Construction, 17-1 BCA at 179,081. As support for the remaining $85,203.11, Amec cites

only a schedule of “material costs for small tools and related equipment.” No evidence ties

the costs in the schedule to any specific demolition activity or problem.

Amec writes that SSG incurred another $90,218 in unanticipated costs for

“scaffolding for the shower room . . . due to increased inefficiencies.” Amec never describes

the scaffolding issue, however. Amec refers to “the personal observations of” SSG’s project

manager, but it cites none of his testimony. He did not use the words “scaffold” or

“scaffolding” at the hearing. In any case, again, Amec derives the dollar figure from the

unsupported thirty percent inefficiency estimate. Amec also seeks $35,626.67 for SSG’s

“extended shoring rental costs.” Given that Amec describes its “inefficiency” quantum as

unrelated to modification 1, we see no basis for Amec to recover here any costs caused by

“extended” time. We addressed delay costs above. Moreover, Amec volunteered in both of

Confusingly, Amec states in a heading that these costs total $1,996,002, but it

itemizes $599,738.44, stating that the total costs “include, but are not limited to” the itemized

amounts. We deal with arguments in the brief. See Board Rule 23(b) (48 CFR 6101.23(b)

(2018)) (post-hearing briefs “shall cite record evidence for factual statements”). The

itemized costs include general conditions and bond, addressed elsewhere in this opinion.

Amec’s concrete expert opined that the agency’s comments on Amec’s

proposal to substitute smaller aggregate “were ambiguous, leading to extensive

correspondence between AMEC and [the engineer of record] to resolve this issue,” which

he thought caused delay. The expert did not criticize the specified aggregate size.

CBCA 5168, 6298

its 2012 schedule recovery plans to use additional shoring. We cannot determine from

Amec’s briefing whether the shoring that Amec promised then is at issue here.

Amec next argues that it “is entitled to $699,454.35 for the additional costs it owes

to Pullman.” Amec does not explain why it might owe anything to Pullman, a second-tier

subcontractor.26 The expert who discussed Pullman’s claim against SSG testified that she

“didn’t . . . look upstream [past SSG] to determine ultimate causation, and typically, for a

second-tier subcontractor, it’s not obvious what the cause, the ultimate cause, is for any claim

in particular.” Amec’s breakout of the $699,454.35 relies solely on her opinions. We have

no basis to find that the agency caused Amec, the contractor, to owe Pullman any money.

Any agency liability to Amec as a result of costs incurred by Pullman would need to be

proved elsewhere within amounts owed by Amec directly to a first-tier subcontractor.

See E.R. Mitchell Construction Co. v. Danzig, 175 F.3d 1369, 1370 (Fed. Cir. 1999);

Acquest Government Holdings, OPP, LLC v. General Services Administration, CBCA 413,

08-1 BCA ¶ 33,720, at 166,969 (2007).

Amec seeks another $360,610 in contract administration and REA preparation costs

as inefficiency costs, repeating in this part of its brief that “[t]hese costs have been allocated

by” Amec’s experts. We deny recovery for the same reasons we denied such costs above.

VI.

Government Claim

The agency devotes one page of its 353-page post-hearing brief to the credits it seeks

from Amec. It relies on contemporaneous government estimates of the costs of deleted work,

memorialized in two, two-page schedules. The person who prepared the cost estimates was

unavailable to testify. Lacking both an explanation of the methodology and evidence of the

reasonableness of the values in the schedules, we cannot follow the estimates, much less

draw conclusions from them. An equally large problem is that the agency seeks to reduce

the price of the modified repairs in the B and C blocks, but it does not separately argue that

the price of modification 1 was otherwise fully reasonable, and the contracting officer

testified that she would have considered negotiating a higher price. The agency does not

meet its burden of proof. E.g., Nager Electric, 442 F.2d at 946.

VII.

Quantum Summary

Amec recovers $130,000 in liquidated damages.

government claim in its entirety.

We relieve Amec from the

If the statement was a mistake, Amec did not correct it in its reply brief.

CBCA 5168, 6298

Amec makes some arguments that we do not address above because they were not

presented in a certified claim, were previously abandoned, lack explication, or have a

combination of such flaws. Amec recovers nothing under those miscellaneous theories.27

Decision

The consolidated appeals are GRANTED IN PART in the amount of $130,000 plus

interest under 41 U.S.C. § 7109 from August 28, 2015, to the payment date. The Board

GRANTS the appeal of the government claim.

Kyle Chadwick

KYLE CHADWICK

Board Judge

We concur:

Jeri Kaylene Somers

JERI KAYLENE SOMERS

Board Judge

Joseph A. Vergilio

JOSEPH A. VERGILIO

Board Judge

As examples: Arguments in Amec’s brief that the agency violated the AntiDeficiency Act and that the modified task order was impossible to perform were not raised

in a certified claim and are outside our jurisdiction. K-Con Building Systems, Inc. v. United

States, 778 F.3d 1000, 1005–08 (Fed. Cir. 2015). Allegations that the agency breached the

duty of good faith and fair dealing prior to award were abandoned in the amended complaint

in CBCA 6298, as noted above. Amec refers to delays that its schedule expert did not find.

And Amec seeks some costs with no explanation, e.g., $30,998 that Amec disallowed from

SSG’s invoices and $13,000 for SSG labor on Pullman’s scope of work.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.