GRANTED IN PART: December 22, 2022

GRANTED IN PART: December 22, 2022

CBCA 6760

WU & ASSOCIATES, INC.,

Appellant,

v.

GENERAL SERVICES ADMINISTRATION,

Respondent.

Sean T. O’Meara of Archer & Greiner, P.C., Voorhees, NJ, counsel for Appellant.

Jay Bernstein, Office of General Counsel, General Services Administration,

Washington, DC, counsel for Respondent.

Before Board Judges RUSSELL, SULLIVAN, and CHADWICK.

RUSSELL, Board Judge.

In a previous decision, the Board granted Wu & Associates, Inc.’s (Wu) motion for

partial summary judgment on entitlement upon finding that the specification at issue was

defective because using skids to strengthen flooring at a federal building to support the

weight of heavy elevator equipment was infeasible and that Wu relied on this defective

specification. Wu & Associates, Inc. v. General Services Administration, CBCA 6760,

21-1 BCA ¶ 37,965. Following the Board’s decision, Wu and the General Services

Administration (GSA) agreed to brief the issue of quantum on the written record under Board

Rule 19, 48 CFR 6101.19 (2021), and the Board issued scheduling orders consistent with the

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parties’ agreement.1 After reviewing the record, we find that Wu has established entitlement

to some of its costs.

Background

In December 2018, during a site visit shortly after contract award, Wu determined that

the existing raised floor on the seventeenth floor of the Ted Weiss Federal Building in New

York City could not support the weight of heavy elevator equipment. Wu submitted a

change order request proposing to correct, protect, and strengthen the floor. The proposal

involved Hi Tech Data Floors, Inc. (Hi Tech), the original floor installer, removing the

existing flooring, which the change order request alleged was damaged, installing support

pedals, and adding an underlayment and new flooring. In March 2019, Wu notified GSA that

it would submit further information in support of the change order request. In April 2019,

Wu provided GSA a report prepared by William J. Madden (Mr. Madden), a professional

engineer, in which he concluded that the existing floor could not support the load of the

elevator equipment by only distributing the load.

GSA, GSA’s project manager, Wu, and KONE Elevators (KONE), the elevator

installer, continued to discuss the engineering needed to address the limited load capacity of

the floor. Wu submitted a formal proposal in early May 2019 with options to safely move

the elevator equipment, including the use of an elevator shaft to hoist the equipment up to

the machine room which Wu determined would be the most effective option. Relying upon

Mr. Madden’s opinion, Wu noted that using skids over the floor to distribute the equipment

load, as required by GSA in the contract, would not work. GSA informed Wu that the

agency had no objection to Wu’s proposal, but it asked for additional technical details.

In response, Wu provided a detailed analysis prepared by Innova Technologies, Inc.

(Innova). Innova proposed the use of an “Air Sled” system to move the elevator equipment

over the raised floor with a customized skid. Innova rejected the proposal to add more

stanchions because that solution might not be feasible since the space under the floor was

already being used for wiring. Innova also noted the possibility that the stanchions might fail

without a full understanding of the internal forces of the proprietary floor panel system, and

the process involving the installation of stanchions was labor-intensive. At a meeting in June

2019, GSA raised questions about the “Air Sled” system proposal and instructed Wu to,

again, look into the possibility to reinforce the raised flooring panels with more stanchions.

1

See American Agri-Business Insurance Co., CBCA 4708-FCIC, 16-1 BCA

¶ 36,303, at 177,028 n.1 (treating the parties’ motions for summary relief as submissions of

the case on the record consistent with the prior expressed intent of the parties and the Board’s

order.).

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GSA also asked Wu to provide a more scientific and engineering analysis on the raised

flooring and a scientific and detailed analysis on the “Air Sled” system solution.

In September 2019, KONE, with PSP Enterprises, Inc. (PSP), an engineering

company, revisited the solution of reinforcing the raised floor. PSP performed the

calculations necessary to address the steps that were required to move the elevators across

the floor and proposed adding additional stanchions to reinforce the floor. KONE obtained

a quote from Hi Tech to install the stanchions. GSA selected this solution to reinforce the

flooring.

On December 3, 2019, pursuant to the Contract Disputes Act (CDA), 41 U.S.C.

§§ 7101–7109 (2018), Wu submitted its certified claim to GSA for the following costs:

$28,334.29 for the installation of the additional floor stanchions; $576 for per diem; $3200

for the engineering analysis completed by Mr. Madden; $6050 for engineering analyses

prepared by Innova; $3816.03 for overhead (ten percent of costs); $2098.82 for profit (five

percent of costs); $2880 for work performed by Wu’s weekend site supervisor (sixteen hours

at $180 per hour); $2880 for time spent by Wu’s president for meetings and review (twelve

hours at $240 per hour); $4230 incurred by Wu’s senior project manager for meetings,

investigation and review (twenty-four hours at $180 per hour); and $1083.10 for bond and

insurance. Wu did not seek return of its retainer ($10,000) in its claim.

In March 2022, the parties filed their briefing on costs and, subsequently, replies in

support of their briefing. In its briefing (but not as part of the Rule 4 file or its discovery

responses to GSA), Wu produced a time sheet showing that the site supervisor, an hourly

employee, worked 23.5 hours during weekends. Wu also estimated that its president and

senior project manager, respectively, spent twelve hours and twenty-four hours on the

project. Wu states that it does not keep time records for these individuals so, by necessity,

the time had to be estimated. Wu also produced no salary records for the two individuals in

either its discovery responses or its Rule 19 supplement.

Pursuant to the Board’s Order on Further Proceedings dated September 15, 2020,

discovery in the appeal closed on November 2, 2020, and pursuant to the Board’s order of

December 1, 2020, all supplementation to the Rule 4 file was to be submitted by

December 18, 2020.

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Discussion

I.

The Board Lacks Jurisdiction over Wu’s Claim for Release of the Retainer Fee

The CDA provides the Board with jurisdiction to resolve claims disputes between

contractors and executive agencies. 41 U.S.C. §§ 7101-7109. Before the Board can exercise

its jurisdiction under the CDA, “there must be both a valid claim . . . and a contracting

officer’s final decision on that claim.” Stobil Enterprise v. Department of Veterans Affairs,

CBCA 5246, 16-1 BCA ¶ 36,478, at 177,741 (quoting James M. Ellett Construction Co. v.

United States, 93 F.3d 1537, 1541-42 (Fed. Cir. 1996)). “While a contractor may increase

the amount of its claim [in an appeal to the Board], it may not ‘raise any new claims not

presented and certified to the contracting officer.’” Anglin Consulting Group, Inc. v.

Department of Homeland Security, CBCA 6926, 21-1 BCA ¶ 37,918, at 184,157 (quoting

Santa Fe Engineers, Inc. v. United States, 818 F.2d 856, 858 (Fed. Cir. 1987)).

For the first time in its briefing on quantum, Wu requested the release of its $10,000

retainer fee. The Board lacks jurisdiction over this claim because Wu failed to present the

issue of the retainer fee, which involves a different set of operative facts from those related

to the dispute over the flooring costs, to GSA’s contracting officer. See Integhearty

Wheelchair Van Services, LLC v. Department of Veterans Affairs, CBCA 7318, 22-1 BCA

¶ 38,156, at 185,314 (“If the operative facts of an issue are not encompassed within the

certified CDA claim underlying an appeal, we lack jurisdiction to consider the issue.”).

Accordingly, Wu’s claim asking the Board to compel GSA to release the retainer fee is

dismissed for lack of jurisdiction.

II.

Wu May Recover Some of Its Costs to Address the Defective Specification

A.

Engineering Reports from Mr. Madden and Innova

GSA only disputes reimbursing Wu for the costs that the company incurred for

Mr. Madden’s services ($3200), Innova’s services ($6050), and the additional time spent on

the flooring issue by Wu’s president ($2880), senior project manager ($4230), and weekend

site supervisor ($2880).

“A constructive change occurs when a contractor performs work beyond the contract

requirements, without a formal order under the Changes clause, either due to an informal

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

of Homeland Security, CBCA 1411, 11-1 BCA ¶ 34,636, at 170,696 (2010), aff’d, 449 Fed.

App’x 945 (Fed. Cir. 2011). “[I]f the government was at fault in causing work to be done

outside the scope of the contract,” as was previously found by the Board in this case, the

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appellant “is entitled to an equitable adjustment of price” for the constructive change. LB&B

Associates Inc. v. United States, 91 Fed. Cl. 142, 153 (2010).

Under the Changes clause for defective specifications, Wu is entitled to an equitable

adjustment for the “increased costs [that were] reasonably incurred by [it] . . . in attempting

to comply with” GSA’s defective specifications. 48 CFR 52.243-4(d). A cost is considered

reasonable “if, in its nature and amount, it does not exceed that which would be incurred by

a prudent person in the conduct of competitive business.” Id. 31.201-3(a). The contractor

bears the burden of proof to establish that the cost is reasonable. Id.

Wu argues that it incurred the expenses for Mr. Madden’s and Innova’s services only

after communications from GSA asking Wu for additional information to address the limited

load capacity of the raised floor. Wu adds that the Madden report was necessary to convince

GSA that the raised floor could not support heavy elevator equipment by distribution only

and that Wu incurred the costs of the Madden and Innova reports in a good faith attempt to

address a problem that, in its view, GSA caused by failing to perform the necessary

engineering during the design phase of the project. Wu asserts that, because the procurement

was not a design-build contract, Wu, as a general contractor, should not have been

responsible for hiring a structural engineering company to perform any structural analysis.

Instead, Wu argues that GSA’s designer of record should have performed the structural

analysis.

GSA asserts that because Wu’s initial change order submitted in March 2019 included

a similar proposal for strengthening the floor to the one ultimately adopted in September

2019, Wu’s costs for the Madden and Innova reports, completed between March 2019 and

September 2019, were unnecessarily incurred and not reasonable. GSA also argues that the

costs for these reports were unreasonable because the engineers reached the wrong

conclusion about the feasability of adding stanchions to strengthen the existing floor. Yet

GSA has produced no evidence showing that Wu continued to pursue options to address the

flooring issue knowing the engineering analyses might have been incorrect or that, for some

reason, it was imprudent for Wu to reach out to Mr. Madden and Innova for engineering

services.

Also, the record reflects an iterative approach in which GSA was actively engaged in

addressing the issues with the flooring. GSA repeatedly sought information from Wu at the

time the company was attempting to resolve the flooring issue – approximately from March

2019, when Wu submitted its initial change order, to September 2019, when the flooring was

reinforced. For example, in June 2019, GSA, in addition to asking Wu to re-evaluate the

feasibility of using stanchions, also asked Wu to provide scientific and detailed analysis of

Innova’s “Air Sled” proposal. At this point, Wu and GSA were still discussing various

options to the flooring issue.

CBCA 6760

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Under the circumstances, the Board finds that it was reasonable for Wu to incur the

costs of the various engineering analyses, including the analysis done by KONE and PSP,

which supported the use of stanchions to address the flooring issue (and for which GSA is

willing to pay), as well as the analyses done by Mr. Madden and Innova during the period

when Wu and GSA were still examining options to address the issue. Accordingly, the

Board grants Wu’s appeal for reimbursement of the costs for the Madden analysis ($3200)

and the Innova analysis ($6050). Both amounts are supported by documentation in the

record.

B.

Supervisory and Executive Costs

1.

Site Supervisor Costs

GSA contends that the costs Wu incurred for the time of its president, senior project

manager, and weekend site supervisor are not legally recoverable and not supported and,

instead, should be considered as part of Wu’s ten percent overhead allowance. GSA states

that, notwithstanding its pre-briefing discovery requests to Wu for all documents and

information that supports its claim, Wu did not produce any information supporting the

claimed time for its president and supervisory staff.

The Board cannot ignore that Wu first produced the time sheet (purportedly showing

hours worked) for its site supervisor with its opening brief on quantum, which was filed

about sixteen months after discovery closed and fifteen months after any supplementation

of the Rule 4 file was due. Under Board Rule 1(c), the Board may “apply principles of the

Federal Rules of Civil Procedure to resolve issues not covered by [Board] rules.”

When a party fails to obey an order regarding discovery, Rule 37 of the Federal Rules

of Civil Procedure provides tribunals with discretion to redress the party’s failure, including

“prohibiting the disobedient party from supporting or opposing designated claims or

defenses, or from introducing designated matters in evidence.” Fed. R. Civ. P.

37(b)(2)(A)(ii). This Rule also states, “If a party fails to provide information . . . as required

by Rule 26(a) or (e) [regarding initial disclosures and supplementing disclosures and

discovery responses], the party is not allowed to use that information . . . to supply evidence

on a motion, at a hearing, or a trial, unless the failure was substantially justified or is

harmless.” Fed. R. Civ. P. 37(c). Wu has provided no argument that its failure to produce

the time sheet for its site supervisor in a timely manner – i.e., during discovery in response

to GSA’s discovery requests or as a document in the Rule 4 file – is substantially justified

or harmless. The Board will not consider the late-produced time sheet as evidence in this

appeal, and, without this evidence, Wu has provided no evidence to support its claim.

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2.

President and Project Manager’s Costs

Costs for salaried employees are typically included in overhead. RLS Construction

Group LLC v. Department of Veterans Affairs, CBCA 6349, et al., 20-1 BCA ¶ 37,566, at

182,404 (citing Interstate General Government Contractors, Inc. v. West, 12 F.3d 1053, 1058

(Fed. Cir. 1993); see also J.C. Equipment Co., ASBCA 51321, 02-1 BCA ¶ 31,810. Wu

explains that the ten percent overhead allowance might be sufficient if it were just

responsible for the build part of the elevator modernization project, but the amount does not

cover Wu’s additional costs here involving a design solution. Wu has failed to provide

support for the costs that it seeks.

It is true that, in certain circumstances “[w]here a contractor does not accumulate cost

data and cannot identify its actual costs attributable to changes, estimates may be used to

quantify the increased costs a contractor incurred.” Reliable Contracting Group, LLC v.

Department of Veterans Affairs, CBCA 1539, 11-2 BCA ¶ 34,882, at 171,563 (quoting

Environmental Safety Consultants, Inc., ASBCA 53485, 05-1 BCA ¶ 32,903, at 163,019,

modified on reconsideration, 05-2 BCA ¶ 33,073). Yet the United States Court of Appeals

for the Federal Circuit has recognized that an award of damages based on cost estimates –

or, as the Court described it, the “guesstimate” of how much the contractor actually spent in

response to a change – is permissible only “where the [contractor] can demonstrate a

justifiable inability to substantiate the amount of his resultant injury by direct and specific

proof.” Dawco Construction, Inc. v. United States, 930 F.2d 872, 881 (Fed. Cir. 1991),

overruled on other grounds by Reflectone, Inc. v. Dalton, 60 Fed. 3d 1572 (Fed. Cir. 1995)

(quoting Joseph Pickard’s Sons Co. v. United States, 532 F.2d 739, 742 (Ct. Cl. 1976)).

Additionally, “once a contractor is aware that it has a potential claim against the

Government or that it is having to perform extra or changed work, it has an obligation to

create and maintain contemporaneous records tracking and showing its increased costs and/or

segregating increased costs from costs for unchanged work.” United Facility Services Corp.

v. General Services Administration, CBCA 5272, 18-1 BCA ¶ 37,086, at 180,553. “Inability

to justify the absence of contemporaneous records can preclude or diminish a contractor’s

recovery.” Id. (citing Dawco Construction, Inc., 930 F.2d at 881-82). Wu, as part of its

normal business practice, states that it does not keep time records for its president and senior

project manager. Yet Wu knew that it had a potential claim when it submitted its first change

order request and should have started tracking the time spent by its salaried employees to

resolve the raised floor issue.

Wu also failed to produce any other business records or documentation that could

have supported its claim and provided no reason justifying any inability to do so. For

example, Wu could have produced declarations or affidavits attesting to the estimated hours

worked by these two individuals. Wu could have also produced contemporaneous business

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records showing the salaries of its president and senior project manager, possibly

extrapolating their hourly pay from these salaries. The Board declines to award damages

absent proof of incurred costs.

III.

Wu’s Claim for Attorney Fees and Costs Is Premature

Wu claims $49,763.49 under the Equal Access to Justice Act (EAJA), 5 U.S.C. § 504,

in legal fees and costs incurred to prosecute this claim. It is well established that an

application for recovery of attorney fees under EAJA that is submitted to the Board before

final adjudication of an appeal will be considered premature. See Rule 30(b) (“A party may

file an application for fees and other expenses only after the time to seek appellate review of

a Board decision has expired. A party may file an application within 30 calendar days after

that date.”). There has been no final adjudication in this appeal, and, accordingly, Wu’s

request for legal expenses under EAJA is premature.

Decision

The appeal is GRANTED IN PART. In addition to the costs that GSA concedes are

owed to Wu ($28,334.29 for the installation of the additional stanchions, $576 for per diem

and the markups (i.e., ten percent for overhead, five percent for profit, and two percent for

bond/insurance)), the Board finds that Wu is also entitled to the engineering costs for fees

paid to Mr. Madden ($3200) and Innova Technologies ($6050) and interest on these amounts

calculated from December 11, 2019, the date on which Wu’s certified claim was received by

GSA, see 41 U.S.C. § 7101(a)(1).

Beverly M. Russell

BEVERLY M. RUSSELL

Board Judge

We concur:

Marian E. Sullivan

MARIAN E. SULLIVAN

Board Judge

Kyle Chadwick

KYLE CHADWICK

Board Judge