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GRANTED IN PART: March 31, 2023

CBCA 6750

BALFOUR BEATTY CONSTRUCTION, LLC,

Appellant,

GENERAL SERVICES ADMINISTRATION,

Respondent.

Reginald M. Jones, Nicholas T. Solosky, and Diana Lyn Curtis McGraw of Fox

Rothschild LLP, Washington, DC, counsel for Appellant.

Justin S. Hawkins, Kelly Y. Burnell, and Jessica A. Gunzel, Office of General

Counsel, General Services Administration, Washington, DC, counsel for Respondent.

Before Board Judges SHERIDAN, KULLBERG, and O’ROURKE.

KULLBERG, Board Judge.

Appellant, Balfour Beatty Construction, LLC (Balfour), appeals the contracting

officer’s (CO’s) final decision (COFD) that denied its claim in the amount of $13,350,899.

Balfour’s claim consists of nineteen separate claims for increased costs related to its contract

with the General Services Administration (GSA) for the construction and expansion of phase

two of the central utilities plant (CUP2) for the Department of Homeland Security (DHS)

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headquarters at the St. Elizabeths West Campus (St. Elizabeths) in Washington, D.C.1

Through its nineteen claims, Balfour seeks to recover increased costs allegedly incurred

because of compensable delay, errors in the solicitation bridging documents, differing site

conditions, and changes to the contract. Balfour also seeks certain costs related to legal and

consulting fees.

The Board conducted a seven-day hearing, which commenced on July 12, 2021. The

parties submitted post-hearing and reply briefs. Only entitlement is at issue in this appeal.2

For the reasons stated below, the appeal is granted in part.

Background and Findings of Fact

The Solicitation and Contract

On March 25, 2016, GSA issued solicitation number GS-11-P-16-MM-C-7001

(solicitation), “Design/Build for [CUP2] for the consolidation of [DHS] at St. Elizabeths.”

Appeal File, Exhibit 2.13 at STE00000199.4 The first phase of the solicitation was a request

St. Elizabeths Hospital was established as a psychiatric hospital by the United

States Government in 1852. Appeal File, Exhibit 2.14 at 910. The 300-acre St. Elizabeths

campus includes Gothic Revival buildings, which were built between 1852 and 1899. Id.

Sixty-two of the seventy buildings on the campus are national historic landmarks. Id. GSA

took control of the property in 2004. Id. “St. Elizabeths” has been historically written with

the omission of an apostrophe. Id., Exhibit 2.9 at 416 n1.

The Board’s order on further proceedings, dated March 4, 2020, stated that the

Board would only determine entitlement in this appeal. In a subsequent order, dated

March 25, 2020, the Board, at the parties’ request, revised its previous order to state that the

Board would decide both entitlement and quantum. At the hearing, the parties agreed that

the Board would determine only entitlement. Transcript, Vol. 1 at 48-49.

All exhibits are found in the appeal file, unless otherwise noted. The appeal

file consists of numbered exhibits 1 through 623 (Government’s exhibits) and 2001 through

2341 (appellant’s exhibits). Exhibit 2342 is the parties’ joint statement of facts. Transcript,

Vol. 1 at 5. Exhibit 2343 is a September 6, 2018, email from GSA to Balfour. Exhibit 2344

is the Government’s expert testimony “slide show” presentation at the hearing. Transcript,

| Vol. 7 at 68. Exhibit 2345 is appellant’s presentation from counsel’s opening statement.

Subsequent page number citations in government exhibits will omit the letters

“STE” and the zeros that precede the actual page number in the exhibit. Both government

and appellant exhibits have page numbers that were imprinted on each page of the exhibits

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for qualifications (RFQ) for the selection of highly qualified offerors, and the second phase

was a request for proposals (RFP) from a short list of highly qualified offerors. Id. at 204.

The RFQ described the project as “design/build efforts from approximately 30% bridging

documents.” Id. at 199. Additionally, the RFQ explained the purpose of the bridging

documents as follows:

GSA will utilize the design-build bridging method to deliver this Project. This

contracting strategy is a hybrid of traditional design-bid-build project delivery

and design-build project delivery. GSA has entered into a separate contract

with the Construction Manager (CM) firm AFG. AFG will assist in the

administration of the design-build phases of the Project. In the design-build

“bridging” delivery method, [Zimmer, Gunzel, Frasca Architects (ZGF)]

(GSA’s Bridging Architect/Engineer) has developed the Government’s needs

for the Project through the planning and final concept design and

specifications. These bridging documents are not intended, nor are they

adequate, for actual construction. Rather, they are intended to convey the

conceptual design and historic preservation approach of the Building as well

as the Project specific design criteria and requirements. The “bridging”

concept design will serve as the basis for the Contractor’s Proposal

submissions. The Contractor will be required to take the concepts (final

concepts) through GSA’s excellence process and to work with the various

consulting parties in order to obtain the required approvals of the National

Capital Planning Commission, the State Historic Preservation Office, and

Commission of Fine Arts.

Id. at 204.

The bridging documents included a project narrative, specifications, drawings,

calculations, site-condition reports, and an historic structure report prepared by Wiss, Janney,

Elstner, Associates, Inc. (WJE), an architect and engineering (A&E) firm. Exhibits 2.5–

2.19, 2342 at 2. Section 011000 of the specifications stated, in pertinent part, the following:

by the parties, and those page numbers are used throughout this decision to cite the page of

the exhibit.

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Exhibit 2.18 at 1600-01.

The project narrative described the CUP2 project, as it related to other projects

at St. Elizabeths, as follows:

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Exhibit 2.10 at 438.5

Id. at 461.

Id. Additionally, the narrative noted that a utility

tunnel, which runs north to south, terminated at the north face of the CUP1, and it made

Id. at 440. The bridging documents required that

construction schedules be coordinated such that the

Id. at 438. Photographs of the center

building from the spring and fall of 2016 show only the original external walls of the

building supported by bracing with the roof and interior floors having been removed.

Exhibit 1 at 6, 34.

The design presentation in the bridging documents showed the site of the CUP2

as adjacent to the CUP1, which was built in 2010, on one side and the former power house

with its twin smokestacks (building 56/57) on the other side. Exhibit 2.11 at 560, 585.

The DOC A was also known as the DHS National Operations Center.

Transcript, Vol. 5 at 197.

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Additionally, ZGF advised that

Id. at 585. Photographs in the bridging

documents, which were dated from 1920 and 1968, showed railroad tracks and other

structures near the power house that were not present in a contemporary photograph of the

power house. Id. at 562.

WJE’s historic structure report on the power house, which was dated July 14,

2014, noted the following:

The Power House was constructed as part of an expansive building campaign

initiated by Alonzo Richardson during his tenure as superintendent. Due to the

increased size of the campus, a larger heating plant was needed to replace the

previous boiler house (Building 52, later known as the Ice Plant). The first

phase (Building 56) was designed in 1901 and completed in July 1904. By

1905, planning began for the second phase of the Power House through the

construction of an addition to the northeast. By 1906, a railroad trestle was

constructed at the east end of the north facade of the Power House over a

series of coal storage bins. Alterations typically focused on equipment

improvements. In 1908 funds were appropriate[d] for the Power House

expansion. The Power House addition (Building 57) was completed in 1910.

Exhibit 2.9 at 418. The power house underwent various modifications during the remainder

of the twentieth century, and the building was “mothballed” in 2004. Id. WJE’s report noted

the current, deteriorated state of the power house with boarded-up windows, standing water

and mud inside, open mortar joints on the exterior facade, and the encroachment of vines and

trees on the building. Id. at 418-20. Recent changes to the power house were the following:

The Power House was significantly altered in 2010 during construction of the

new U.S. Coast Guard headquarters on the site . . . . On the site to the north

of the building, the railroad trestle and various retaining walls were

removed. At the north side of Building 56, the 1940s water treatment addition,

the 1940s vent house addition, the 1970 generator room addition, and several

adjoining additions were demolished exposing the original north wall of

Building 56 . . . . On the north side of Building 57, a series of concrete

retaining walls and foundations built in 1955 to support coal bunkers and

related equipment were removed.

Id. at 419.

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The bridging documents also included a second assessment of the power house,

which was prepared on July 31, 2015, for ZGF by Robert Silman Associates (Silman).

Exhibit 2.17 at 1550. Silman’s report was a summary of a June 26, 2015, site visit. Id. at

1552. The report noted that some areas of the power house were inaccessible due to

flooding. Id. at 1554. Captioned photos in Silman’s report noted

and

Id. at 1565-65. Another photo showed “extensive

vegetation growth adjacent to and on the structure.” Id. at 1564. Additionally, the report

listed the following recommendations:

Id. at 1566.

Section 10.2, Fuel Storage, of the project narrative stated that

Exhibit 2.10

at 473. The tanks would be located above ground in level B2 adjacent to each generator and

provide for a

run time. Id. Chapter ten, “Mechanical,” of the project narrative

stated that GSA’s Public Buildings Service (PBS) publication P-100 (PBS P-100) provided

that

Id. at

464. The PBS P-100 required a minimum emergency power supply of seventy-two hours.

Exhibit 2087 at 982757.

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Section 10.2.4, Connection to CUP1, of the project narrative stated that

Exhibit 2.10 at 472. Section 6.5.2.3, Demand Load

and Spare Capacity, stated the following:

To ensure maximum flexibility for future systems changes, the electrical

system must be sized for the demand load with additional spare capacity as

follows:

....

Main switchgear: 25 percent spare ampacity and 25 percent spare circuit

capacity[.]

Exhibit 2087 at 982745.

Section 12.4.1, Main Service Distribution and Switchgear, of the project

narrative stated that

Exhibit 2.10 at 497. Additionally, that section stated that

Id. That requirement for a

Kirk-Key interlock system was also shown on bridging design drawing E606. Exhibit 2.19

at 2748. However, the PBS P-100 stated that “[a]ll double-ended substations must be

equipped with two secondary main breakers and one tie breaker configured for open

transition automatic transfer, initiated through the use of an under-voltage relaying scheme.”

Exhibit 2087 at 982750.

10.

Section 12.4.2, Emergency Power, of the project narrative provided that

Exhibit 2.10 at 497. Bid alternate 2 included

Id. Additionally,

the project narrative provided that the

would be included as part of bid alternate 1.

Id. at 498. The campus electrical load table showed the DOC A as receiving 100%

KW refers to kilowatts and kVA refers to kilovolt amperes.

Exhibits cited elsewhere in this decision refer to the 3000 kW generator as a

3 megawatt (MW) or 3MW generator.

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emergency power. Id. at 501. The emergency power requirement for the DOC A was the

same as the normal power requirement, which was nine megawatts. Transcript, Vol. 5

at 197-99. The emergency power requirement for the DOC A, which was a twenty-four-hour

operations center, was more than just life safety loads. Id. at 200.

11.

Section 15.1 of the project narrative advised that

Exhibit 2.10 at 526. Section 15.2.1.1, Control Technology

Analysis (Lower Achievable Emission Rate (LAER)/Best Available Control Technology

(BACT)), of the project narrative stated the following:

Id. at 529.

12.

The bridging documents included a geotechnical report, which had been

prepared by Haley & Aldrich, Inc. (HAI) for ZGF. Exhibit 2.14 at 902. Generally, the report

“summarize[d] the results of subsurface investigations, [their] geotechnical engineering

evaluations, and provide[d] foundation design recommendations and construction

considerations for the proposed . . . CUP2.” Id. at 903. With regard to excavation, HAI

stated the following:

Construction of the [CUP2] foundation will require excavation through topsoil,

existing unsuitable Fill containing granular (sands, silts and gravels) and

cohesive (clays) soils, coal fragments and ash from the former Power House

operation, and medium stiff to hard Potomac Group C1 clay soil deposits. The

Fill varies in density from very loose to very stiff and dense and varies from

7.2 m to 8.5 m (23.5 ft. to 28 ft.) thick. A former utility tunnel, utilities, and

concrete slabs and structures once part of a system of coal receiving and

storage structures are assumed to still be in-place with and at the bottom of the

G/hp-hr refers to grams per metric horsepower-hour.

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Fill deposit and will require excavation and removal to reach the [CUP2]

foundation subgrade.

Id. at 930.

13.

Section 13.2.8, Connections to CUP1 and Tunnel, of the project narrative

stated that

Exhibit 2.10 at 504. The bridging documents included drawing S1.01, lower level 2

foundation plan, from phase 1A, CUP1. Exhibit 2.8 at 411. The project record date of the

drawing was October 14, 2013. Id. Additionally, the bridging documents included drawing

SB101, level B2 floor plan for the CUP2 project, which was prepared by ZGF and Silman.

Exhibit 2.19 at 2666. A note on drawing SB101 said, in part,

Id. Silman provided a separate set of structural calculations with regard to the

mat foundation,9 and noted, with regard to HAI’s report and drawing SB101, the following:

Exhibit 2.12 at 602. Silman also noted, in light of HAI’s report, the following geotechnical

assumptions:

Id.

14.

Additional directions in section 011000 of the specifications included, in

pertinent part, the following:

A mat foundation is a continuous slab resting on the soil that extends over the

entire footprint of the building.

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Replacement of existing conditions that are removed shall match

similar existing conditions.

Unless indicated on the construction documents and prior approval has

been received by the CO, existing structural members shall not be cut or

altered without authorization.

Conditions that are to remain in place which are damaged or defaced

during the Work, shall be restored to the condition existing at time of D-B

Constructor’s [sic] access to the Work for destructive [sic] and other

investigation as determined and accepted by the Government.

Discolored or unfinished surfaces exposed by removal of existing

conditions that are indicated to be final exposed surfaces, shall be refinished

or replaced as necessary to produce uniform and harmonious contiguous

surfaces.

D-B Contractor shall submit a plan for approval to GSA and DHS to

make any required modifications to the existing Campus Level V Security

Fence required to access and complete Work. All required fence modifications

shall be part of the D-B Contractor’s Base Bid and must be coordinated with

DHS [Office of the Chief Security Officer (OSCO)] Security Division and the

Contracting Officer a minimum of seven (7) days prior to starting

modifications. See Division 01 Section “Security Regulations.”

Existing Conditions or As-Built Conditions: The D-B Contractor must

understand and acknowledge that the Bridging Documents provided by the

BA/E may not exactly depict the existing “as constructed conditions” to which

the D-B Contractor must work with, interface, and connect to. The D-B

Contractor should anticipate adjustments to the Work and will perform these

adjustments at no additional cost to the Government.

Existing Utilities: The D-B Contractor shall identify, locate,

document[,] and assure utility services (including telecommunications and data

services) to the other buildings and facilities that constitute the St. Elizabeths

West Campus (both inside and outside the work area) are not interrupted in the

course of the work. All scheduled outages and or interruptions shall be fully

coordinated in advance and approved in writing by the CO a minimum of five

(5) working days in advance. Due to the nature of governmental functions

performed, the importance of maintaining these services cannot be over

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emphasized. Failure to comply with this requirement may result in the

removal of key personnel from the site and the exercise of other appropriate

contractual functions by the Government, including full or partial termination

of the contract. Existing utilities outside the building footprint shall be located

by the D-B Contractor and shall not be disturbed by the D-B Contractor’s

hoisting, bracing, mobile equipment or other equipment and stored materials

on Government property. D-B Contractor shall immediately remove any

equipment or stored material that interferes with ongoing operations in the

St. Elizabeths West Campus.

....

Historic Preservation: The GSA is committed to the future restoration

and renovation of Building 56/57 and Building 52 (Icehouse) as well as to

maintain and enhance the historic landmark nature of the St. Elizabeths West

Campus. The D-B Contractor will be required to provide monitoring and site

protection for these adjacent historical structures, but under no circumstances

shall enter Buildings 52, 56, and 57 without prior approval from the CO. All

work associated with these buildings shall be performed from the exterior, see

drawings for additional information and requirements.

....

Permits: The D-B Contractor shall be responsible for obtaining any

necessary permits from the District of Columbia, the District Department of

the Environment (DOEE) and any other authorities having jurisdiction as

required to complete the Work.

Exhibit 2.18 at 1604-06.

15.

Section 011150 of the specifications, Design Procedures and Requirements,

required that “[t]he D-B Contractor shall provide the professional services of an

Architect/Engineer of Record and Designers of Record for each design discipline, to

complete the design.” Exhibit 2.18 at 1608. That section provided that “[i]f the D-B

Contractor submits a design which is substantially different from the preliminary concepts

prepared by the Bridging A/E for the Government, the D-B Contractor is required to

resubmit the project to the Consulting Parties.” Id. Finally, that section required the

contractor to prepare 35%, 50%, 90%, and 100% construction documents. Id. at 1609-10.

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16.

Section 014200, References, Definitions, and Abbreviations, of the

specifications set forth, in pertinent part, the following definitions:

General Explanation: Specification language often includes terms that

are defined elsewhere in the Contract Documents, including the Construction

Contract Clauses. Terms defined in this section are in addition to the

definitions and references provided in Contract Clauses. These definitions or

explanations are not necessarily complete or exclusive, but are general for the

Work and may be explained more explicitly in other Sections.

....

Bridging: Bridging is a hybrid of design-build and the traditional

design-bid-build process. The contract documents are prepared by the

Bridging Architect/Engineer hired by GSA. The contract documents specify

the project’s functional and esthetic requirements including plan and sectional

views, but the details of construction technology are described with

performance specifications. The construction contract will be awarded based

on Bridging Documents.

Exhibit 2.18 at 1697. Additionally, section 014200 listed, in pertinent part, definitions of the

following terms:

AA. Furnish: Furnish means to supply and deliver to the Project site, ready

for unloading, unpacking, assembling, installation and similar operations.

....

CC. Install: Install describes operations at the Project site, including

unloading, temporary storage, unpacking, assembling, erecting, placing,

anchoring, applying, working to dimension, finishing, curing, protecting,

cleaning and similar operations.

....

PP. Provide: Provide means to design, procure, furnish, install, and

commission, as required, complete in place and ready for full use.

Id. at 1699-1700.

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17.

Section 017300 of the specifications set forth requirements for execution “of

the Work, including, but not limited to laying out the work, general installation of products,

correction of defective work, and cleaning.” Exhibit 2.18 at 1738. That section provided,

in the case of field corrections, the following:

Field Correction Requests: Immediately upon discovery of the need to

deviate from requirements of the Contract Documents, the D-B Contractor

shall submit a field correction request to the Contracting Officer (CO) for

review. Include a detailed description of the problem encountered, together

with recommended changes and detailing the reasons for deviating from the

Contract Documents. Do not proceed with work without prior approval of CO.

Id. Additionally, section 017300 stated that contractors “shall verify layout information

shown on the Bridging Drawings, in relation to the property and any existing benchmarks,

including validation of existing building and utility locations against the Government’s

overall campus survey.” Id. at 1739. Finally, that section stated the following:

Existing Utilities and Equipment. The existence and location of

underground and other utilities and construction indicated as existing are not

guaranteed. Before beginning sitework, investigate and verify the existence

and location of underground utilities and other construction.

Id. at 1740.

18.

Division 31 of the specifications set forth the requirements for earthwork.

Exhibit 2.18 at 1574-75. Section 31 2300, part 1 at (E)(2)(a) stated that “[t]he [c]ontractor

is advised that former structures, including concrete slabs, walls, utilities, etc. exist below

grade that will interfere with excavation and new foundation construction and will require

removal.” Id. at 2423. Additionally, section 31 2300, part 3 at (C)(2) stated that “[t]he

[c]ontractor shall expect to encounter remnants of tunnels, slabs, walls, utilities and other

buried structures during pre-trenching, general excavation, and installation of temporary

excavation support systems.” Id. at 2429.

19.

Section 31 2335 of the solicitation specified the manner in which the contractor

would excavate the site and dispose of excavated soil and other material. Exhibit 2.18

at 2444-57. That section identified seven separate classes of soil or other material to be

excavated. Id. at 2448-51. Generally, classes one through four applied to soil with varying

levels of contamination, and classes five through seven applied to ash with varying levels of

contaminants and other solid waste. Id. at 2448. Additionally, that section required the

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Government to conduct a pre-characterization program to test and classify the soil and other

materials to be excavated. Id. at 2448, 2451.

20.

Section 31 2319, Construction Dewatering, of the solicitation specifications

described, in pertinent part, the work as follows:

Design, provide, install, operate, maintain, and remove a temporary

dewatering system to remove groundwater, groundwater seepage, precipitation

and surface water runoff from excavations in accordance with the requirements

specified herein.

Prior to excavation, lower and maintain groundwater levels a minimum

of 0.61 [meters] below lowest excavation subgrade level.

Design, furnish install, maintain and operate a treatment system to treat

dewatering effluent as necessary to comply with all DC Water permits and

discharge criteria, including treatment to reduce chemical concentrations to

permit levels or lower in the dewatering effluent prior to discharge. Do not

discharge collected water into permanent perimeter or underslab drainage

system or recharge system.

Exhibit 2.18 at 2437. That section also provided that “[t]he Contractor is required to obtain

all required discharge permits and to route effluent from the dewatering system to an

acceptable discharge location as identified in the permit(s), and to treat dewatering effluent

as necessary to comply with permit discharge criteria.” Id. at 2438. Finally, that section

provided that “[f]or dewatering effluent, discharge to the designated location in accordance

with applicable permits. Discharge to the storm drain shall not be conducted unless

Contractor obtains required permits.” Id. at 2441.

21.

The bridging documents included a geotechnical report, which was prepared

by Haley & Aldrich, Inc. (HAI). Exhibit 2.14 at 902. HAI conducted a subsurface

exploration that included “thirteen (13) test borings and two (2) test pits in the vicinity of the

CUP2 location.” Id. at 915. Also, HAI installed an observation well to a depth of thirty feet

to obtain a groundwater sample to “assess its environmental quality for construction

dewatering and potential for off-site disposal.” Id. at 916. In its report, HAI stated that

“[t]he analytical results of the groundwater sample were compared to the [Environmental

Protection Agency (EPA)] National Primary Drinking Water Maximum Contaminant Levels

(MCLs) as a conservative reference. The results indicated that no compounds tested

exceeded any of the EPA MCLs criteria.” Id. However, the report also stated that “[o]ther

environmentally-sensitive activities may have been conducted on the site which may not be

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discovered until construction begins. The full extent of any contamination, and its potential

impacts on design and construction of geotechnical aspects of the project may not be fully

understood until construction.” Id.

22.

Section 26 3213 of the specifications, Engine Generators, provided

requirements for fuel-oil storage as follows:

Exhibit 2.18 at 2356. The specified fuel for the generator engine was “Fuel oil,

Grade DF-2.” Id. at 2355. Sections 23 1313 and 23 1323 were not in the specifications. Id.

at 1573. Section 23 1113, Facility Fuel-Oil Piping, did provide fuel oil that was “Grade

No. 2” and “Diesel Fuel Oil: Low Sulfur.” Id. at 2214.

23.

Section 31 5000(D) of the specifications, which set forth requirements for the

support and underpinning of excavation, stated, in pertinent part, the following:

The provided subsurface information is available to the Contractor for

information on factual data only and shall not be interpreted as a warranty of

subsurface conditions whether interpreted from written text, boring logs, or

other data. The subsurface information is considered to represent the

conditions at the locations of the explorations at the time they were conducted.

Variations from the conditions disclosed by the explorations should be

anticipated by the Contractor in planning and estimating the work.

Protection of Adjacent Property and Utilities: The Contractor shall

protect adjacent structures (Building 56, Central Utility Plant-1, Building 52,

etc.) and utilities (above ground and buried) from damage associated with

construction activities. Damage due to construction activities shall be repaired

immediately by the Contractor at the Contractor’s expense.

Obstructions: The Contractor is advised that the existing fill contains

incinerator ash, buried utilities, utility tunnels, former coal bin slabs and walls,

retaining walls and other below-grade obstructions from historic use of the

site. The Contractor shall make provisions for obstructions in construction

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means and methods, schedule and bid price to account for the fact that

obstructions will be encountered.

Exhibit 2.18 at 2459.

24.

Part 4 of section 31 5000 of the specification, Measurement and Payment,

stated the following:

Support of excavation and underpinning will not be measured, but will be paid

for as part of the Base Bid and shall include furnishing all material,

mobilization, labor equipment, tools, and incidentals necessary to complete the

Work shown of the Contract Drawings and specified herein. No separate

measurement or payment will be made for claims associated with collapsing

drill holes, acquisition of permits, backfill, equipment, material disposal,

construction dewatering, stockpiling, police details, material rehandling,

vibration monitoring, tiebacks, regrouping tiebacks, surveying, mitigating

measures or other associated items or work considered incidental to the

conduct of the Work of this Section.

Exhibit 2.18 at 2472.

25.

The bridging documents narrative provided that electricity would be

Exhibit 2.10 at 497. Distribution of electricity by the

main switchgear would include the CUP2, DOC, center building, west addition, and pump

house. Id. Additionally, the bridging documents provided three bid alternatives for

providing emergency power, which included providing new generators. Id. at 497-98.

26.

Drawing E504 of the bridging documents showed the level B1 tunnel conduit

plant. Exhibit 2.19 at 2746. Lines on the drawing were labeled normal power, controls, and

emergency power. Id. Notes on the drawing required the contractor to “provide” conduit

of the proper size for information technology (IT), normal power, emergency power, and

controls. Id.

27.

Section 230533 of the heating, ventilation, and air conditioning (HVAC)

specifications described heat tracing for HVAC piping. Exhibit 2.18 at 2176. That section

provided, in pertinent part, the following:

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Id.

28.

Section 230593 of the HVAC regulations provided for testing, adjusting, and

balancing of HVAC equipment. Exhibit 2.18 at 2180. Testing and balancing requirements

included air systems, hydronic systems, heat exchangers, motors, condensing units, and heat

transfer coils. Id. The quality assurance section, 1.4, provided for “[American Society of

Refrigerating and Air-Conditioning Engineers (ASHRAE)]/[Illuminating Engineering

Society (IESNA)] 90.1 section 6.7.2.3 – ‘System Balancing.’” compliance. Id.

29.

The mechanical and plumbing section of the bridging documents narrative

advised that

Exhibit 2.10 at 471. Additionally, that

section stated the following:

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30.

The bridging documents narrative provided, generally, for cooling towers to

“be located on the top of the parking garage adjacent to the existing CUP1.” Exhibit 2.10

at 470. The heating system would

Id. Section 10.2.3 of the

project narrative also addressed the connection of the buildings for providing hot and chilled

water, and stated, in pertinent part, the following:

The majority of the buildings currently served by the MUP

Id. at 471. The bridging documents showed a total of four 1300-ton cooling towers for bid

alternate 1, which later became bid options 1A and 1B. Id. at 468; Transcript, Vol. 5 at

204-07.

31.

The bridging documents included drawing MI114, Cooling Plant and

Condenser Water Control System of Operations. Exhibit 2.19 at 2716. A general descriptive

note on the drawing provided the following:

The cooling plant consists of

thr[ough]

(CHWP-1

chillers (CH-1

primary system pumps

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Id. at 2716.

32.

Another note on drawing MI114, Winter Mode, stated that “cooling tower shall

be enabled when chiller is enabled in the start-up mode.” Exhibit 2.19 at 2716. The next

note, cooling tower winterization and de-icing sequence, stated, in pertinent part, the

following:

In the winter season, cooling tower shall be enabled to operate as

described above. When the outside air temperature drops below 35 deg[rees]

F (adjustable)[,] the cooling tower de-icing sequence will be enabled to run

automatically every 2 hours (adjustable) or manually via an operator

command . . . .

Cooling tower (CT-1) shall be provided with packaged basin

heaters. Basin heaters shall be controlled to maintain the basin above the low

limit basin temperature. An alarm shall be raised on the BAS workstation on

indication of a basin water temperature below the low limit set point.

Condenser water pipework exposed to the outside serving CT-1 only

shall have heat tracing. The BAS shall enable and disable the heat trace based

on outdoor air temperature and schedule. The BAS shall monitor status of the

heat trace system at heat trace control panel. On indication of heat trace

system failure, an alarm shall be raised at the BAS workstation.

Id.

33.

Drawing MI104, which was identified as a “condenser water control

schematic,” showed condensate sensor (CT)-1 and CT-2. Exhibit 2.19 at 2704, 2707.

Beyond CT-1 and CT-2 were five pairs of vertical lines and a note that said

Id. A heat trace panel was shown only for CT-1. Id. Certain lines around CT-1 were

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“squiggly” lines. Id. Drawing P001, which was an index of symbols, defined the “squiggly”

line as electrical heat tracing. Id. at 2724.

34.

Section 27 10 00 of the solicitation, Telecommunications (also referred to as

“telecom”), provided the general requirements for telecommunications that included

“furnishing of labor, material, equipment, and tools required for the complete installation of

the work indicated on the Drawings to include telecommunication room build out, power,

pathways, boxes, outlets and all other specified and implied materials.” Exhibit 2.18 at 2364.

The “project” was defined under that section as “IT Cabling Infrastructure subsystems

installation at the [CUP2] facilities.” Id. That section defined a “Telecommunication Room”

as “[t]he enclosed area or room specifically designated for the routing, termination, and/or

cross connecting of IT/security system cable to other system cable and/or equipment.

Id. at 2366.

35.

GSA scheduled a CUP2 RFQ “bid walk” on April 15, 2016. Exhibit 2048 at

2489. A representative of Balfour participated. Id. at 2491. A second “bid walk” took place

on July 8, 2016, and representatives of Balfour again participated. Id. at 2493-94.

36.

On June 24, 2016, GSA issued amendment 04 to the solicitation, which was

the request for proposal (RFP), to the “short-listed” firms. Exhibit 2.5 at 288. The RFP

stated that the “[c]ontractor shall achieve Substantial Completion of the Work . . . no later

than 540 calendar days from issuance of the Notice to Proceed (NTP).” Id. at 322. Contract

completion would follow sixty days after substantial completion. Id. The amendment

included a contract price form with separate line items for the base contract, a unit price for

the removal of contaminated soils, and three options for equipment that were to be exercised

within 365 days from award. Id. at 324.

37.

On July 18, 2016, the CO issued solicitation amendment 06, which included

a request for information (RFI) log. Exhibit 2.21 at 2764. RFI 14 of the RFI log, which

addressed drawing E504, asked the following question:

Drawing E504 shows conduits for IT/Security, Normal Power, Emergency

Power and Controls running through the existing utility tunnel. Please clarify

what these conduits are feeding, where they originate and end, and provide

as-builts for bidder to determine full routing?

Id. at 2778. In response, GSA stated the following:

The conduits are to be extended to the CUP as indicated on the drawings. The

Center Building [general contractor (GC)] will pull their wire and terminate

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in CUP2. There is no need to know the rest of the routing beyond what is

shown in the drawings E504. The CUP2 design builder is to only install

conduit in the tunnel for the indicated area. Drawings E504 shows the

extension of existing conduits in the existing utility tunnel to CUP2. The

conduits shall originate at the existing location where they terminate in the

utility tunnel and the new conduits shall terminate at the entrance to the utility

tunnel from CUP2.

Id. RFI 48 of that same RFI log asked the following question:

Are we to assume that there are no existing foundations and structures within

the limits of excavation or is there a drawing that can be provided showing the

extent of structures and foundations systems below grade in this area?

Id. at 2781. In response, GSA stated that “[p]hotos on sheet AD103 are provided to indicate

the foundations below grade within the limits of excavation.” Id. Drawing AD103 was the

level B1 demolition plan. Exhibit 2.19 at 2646. That drawing included two photographs,

which included “West-East condition prior to CUP1” and “East-West condition prior to

CUP1.” Id. A note over both photographs read “photos below indicate concealed slabs and

foundations below grade to be demo’d.” Id. The photographs showed the power house and

surrounding area, and the second photograph had a note that read “concealed foundation

walls and slab.” Id. RFI 104 asked for “structural as-builts for CUP1.” Exhibit 2.21 at

2787. GSA identified the location of those drawings. Id. RFI 108 asked the following:

Pre CUP1 photos shown on AD103 indicate an existing concrete structure and

steel framing shown in the vicinity of CUP2. It appears that the west side of

CUP1 now consists of fill. Please advise if the concrete structures and steel

framing were all removed as part of the CUP1 project or if the [D-B] is

expected to encounter these structures below the current fill. In addition the

borings conducted in the CUP2 vicinity do not indicate any below grade

structures were observed in the boring process.

Id. at 2787. GSA responded that “[t]he concrete and steel framing exists.” Id. The bridging

documents included a CUP1 drawing, CUPEX-101, that showed a structure next to building

57, which in the opinion of a GSA witness “looks like railroad tracks” and would indicate

that a contractor “would have to dig out heavy concrete and metal.” Exhibit 620 at 35550;

Transcript, Vol. 5 at 172.

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38.

The amendment 06 RFI log also addressed requirements for the emergency

generators at RFI 95. Exhibit 2.21 at 2786. RFI 95 raised a question about section 15.2.1.1,

LAER analysis, of the project narrative and presented the following question:

In addition to the cost implications, the construction schedule does not allow

time for a LAER analysis to be performed to determine whether Tier 2 or

Tier 4 generators are required prior to their release. Therefore, a determination

must be made on the requirement.

Confirm whether Tier 2 or Tier 4 generators are to be provided as part of this

contract.

Id. GSA’s response stated the following:

Without a final LEAR [sic] analysis, it cannot be confirmed that Tier 2

generators are acceptable. Pending confirming, Tier 4 must be used assumed

[sic] as the basis for bids at this time.

Id.

39.

On July 20, 2016, the CO issued solicitation amendment 07, which provided

additional guidance in section 31 2335 of the solicitation. Exhibit 2.22 at 2792-93. RFI 110

in the amendment responded to various inquiries from offerors about the type of soil to be

removed. Id. at 2794. The amended version of that section advised offerors that they should

provide a unit price for the removal of an estimated 50 tons of “In-state, Unlined Landfill”

and 3500 tons of “Non-reportable Urban Fill Soils.” Id. at 2797. Balfour understood those

quantities to represent contaminated soils. Transcript, Vol. 1 at 138.

40.

On July 22, 2016, the CO issued amendment 08. Exhibit 2.23 at 2798. That

amendment provided that bid alternate 1 would include the installation of the new 2500 kW

generator at level G1 of the CUP2, and the three 2500 kW generators in the MUP would be

transferred to level G1. Id. at 2800. Also, bid alternate 1 showed two new generators in

level B1, and bid alternate 2 added a third generator to level B1. Id. However, amendment

08 did not state whether the generators at level B1 were 3000 kW generators as set forth in

section 12.4.2 of the project narrative.

41.

On August 9, 2016, GSA issued solicitation amendment 09. Exhibit 2.26

at 3005. That amendment responded to question 119 regarding whether the contractor was

required to provide hot and chilled water to the center building by September 2017. Id.

at 3023. Amendment 09 confirmed that requirement as part of option 1a, which was

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previously option 1. Id. Additionally, amendment 09 included a contract price form for the

offerors with contract line item numbers (CLINs) one through nine. Id. at 3018. CLIN 1 was

the base contract price, and CLINs 2 and 3 were the unit price and allowance for

contaminated soil. Id. CLIN 4 was option 1A for center building equipment, which was to

be exercised within sixty days from award. CLINs 5 through 8, options 1B, 2, 3, and master

system integrator, were options for equipment to be exercised within 365 days of award.

CLIN 9, option 5, was a premium for an accelerated 365-day schedule. Id. Finally,

amendment 09 clarified the electrical portion of option 1a as requiring one 3 MW generator.

Id. at 3007.

42.

On August 10, 2016, GSA issued amendment 10 to the solicitation.

Exhibit 2.27 at 3025. Amendment 10 clarified question 123 as to whether CLIN 9 applied

to the requirement to provide heating and cooling to the center building by September 2017.

Id. at 3028. The response stated that “[t]he cost to provide heating and cooling to the center

building by Sept 2017 should have always been carried in CLIN #2 option 1 phase 2A

equipment.” Id.

43.

Balfour submitted cost and technical proposals on July 27, 2016, and revised

its proposals on August 12, 2016, in response to solicitation amendments 09 and 10.

Exhibits 2.24–2.27. In its cost proposal, Balfour provided a separate unit price, $392,096,

for the removal of 3550 tons of contaminated soils. Exhibit 2.25 at 2965. Balfour expected

to excavate 60,000 tons of soil, which included both uncontaminated and contaminated soil.

Transcript, Vol. 1 at 139-40.

44.

With regard to completion of the design of the CUP2 set forth in the bridging

documents, Balfour proposed the submission of three design packages. Design package one

included the following:

[Erosion and sediment (E&S)]; grading (interim ravine access ramp to site);

site utilities; stability caissons; support of excavation and underpinning of

adjacent existing foundations; foundations and under slab [mechanical,

electrical, and plumbing (MEP)] developed as 100% construction documents

for review.

Long lead equipment and structure will be developed and submitted as a 90%

construction document for review and comments.

Complex architecture; landscape; mechanical; electrical; plumbing and fire

protections will be developed and submitted as 50% construction documents

for review and comments.

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Exhibit 2.24 at 2875. Design package two included the following:

100% construction documents for long lead equipment and complete structure.

The Balfour Beatty / [Hammel, Green, Abrahamson, Inc. (HGA)] design-build

team includes Kirlin and Helix as design-build MEP subcontractors who will

be able to provide equipment product data and other manufacturer submittal[s]

for review to expedite release for fabrication of the equipment.

Complete architecture; landscape; mechanical; electrical; plumbing and fire

protection will be developed and submitted as 90% construction documents for

review and comments.

Id. at 2875-76. Design package three stated “100[%] construction documents for

architecture; landscape; mechanical; electrical; plumbing and fire protection will be

developed and submitted as 90% construction documents for review and comments.”

Id. at 2876. In accordance with the contract, GSA would have fifteen days in which to

review each design package. Id.

45.

Balfour’s proposal included a preliminary planning schedule, which had been

prepared by HGA, that assumed an award date of August 30, 2016. Exhibit 2.24 at 2852.

The activity “Mass Excavation / Demo Large Retaining Wall / Dewatering” had a start date

of December 26, 2016, and a finish date of March 20, 2017. Id. at 2854. The duration of that

activity was sixty days. Id. Balfour described the sequence of work as follows:

Once we receive approval on the requisite land disturbance and other related

environmental permits, we will begin to install erosion and sediment control

measures, tree protection and the construction entrance. Our schedule

contemplates the following initial sequence of events for excavation of the

building footprint:

•

Conduct initial laser scanning to document positions of existing

buildings / implement necessary vibration control and movement monitoring

•

Precut to elevation 27.50 and remove small retaining wall in order to

drill H piles along 56 and 57 / drill and install requisite bracket piles and

underpinning along Building 56 and 57 followed by stability caissons

•

Drill H piles along north / east sides and begin mass excavation /

shoring / lagging down to elevation 27.50

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•

Install balance of stability caissons

•

Resume mass excavation to subgrade

•

Implement weekly monitoring of supportive excavation and Buildings

56, 57, and 52

Id. at 2885-86. In preparing its proposal, Balfour planned on removing only those concrete

structures and obstructions shown on drawing AD103. Transcript, Vol. 3 at 104-06.

46.

The design concepts volume of Balfour’s proposal stated that “[f]uel oil storage

will be provided for use by the boilers and emergency generators.” Exhibit 2.24 at 2831.

Two tanks, each with a capacity of 20,000 gallons, will be set in the fuel oil storage rooms

at the B2 level. Id. With regard to generators for emergency power, Balfour provided the

following:

During the phased construction, three 2,500 kW, 13.8 kV diesel generators

will be moved to CUP2 where they will be paralleled with one (1) new 2,500

kW, 13.8 kV diesel generator to serve the DOC building. Additionally, three

(3) 3,000 kW, 13.8 kV diesel generators will be provided to serve the

emergency bus backing up both CUP2 and selected campus buildings. There

will be separate paralleling gear provided for the 2,500 kW generators and

3,000 kW generators.

Id. at 2824.

47.

Balfour’s proposal included its design concept for how it would provide chilled

and hot water. Exhibit 2.24 at 2823. Balfour stated the following:

We are providing capacities as required, but have revived the selection and

control of equipment so a more energy-efficient design is achieved. . . . Even

at the lower energy use, we can maintain redundancy, serving the full load of

six (6) 1,300 ton chillers at a 12 degree range. This meets the intent of one

tower per chiller and uses the additional tower as an asset to increase

efficiency.

Id. Balfour, additionally, represented the following:

On both the chilled water and heating hot water loops, we are integrating with

an existing distribution that will be re-activated to serve occupied and

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currently unoccupied buildings. Each building will be connected either

through a heat exchanger or directly connected via a decoupling “bridge.” Our

plant design will account for elevations and total system pressure to allow

direct coupling of all buildings planned for the CUP2 loop, or we will identify

where heat exchangers are required to isolate pressure. This will give

St. Elizabeth’s [sic] the maximum flexibility in tying the buildings to the

central plant. Further, the control points needed to coordinate between . . .

each building and CUP2 will be indirectly connected, making the transitions

of adding buildings easier to coordinate.

Id. at 2833-34.

48.

Balfour’s proposal also included a list of most significant risks related to the

project and the means by which it would mitigate those risks. Exhibit 2.24 at 2893-95.

Among those risks, Balfour noted storm water management, unforeseen site conditions, and

groundwater. Id. With regard to storm water management, Balfour recognized that the

approval process with DOEE would be forty-five days and that it might encounter the need

for multiple reviews. Id. at 2893. Balfour’s approach to unforeseen site conditions included

early detection and extended work hours that would be implemented to keep the project on

schedule. Id. at 2894. In dealing with groundwater, Balfour indicated that it could use an

alternate method of collecting discharge in temporary tanks and discharging it offsite. Id. at

2895.

49.

In an email dated July 15, 2016, ZGF advised GSA as to how it determined

“estimated quantities (tons) of soils to be managed in Section 312335.” Exhibit 103 at

459544. Although ZGF represented that it had made test borings and limited chemical

testing, “[n]o pre-characterization of the soils to be excavated was performed.” Id. In

response, GSA asked ZGF, “Did we have an estimate of how much was contaminated based

on the soil studies?” Id.

50.

On December 16, 2016, GSA awarded contract number GS-11-P-17-MM-C0002 (contract) to Balfour in the amount of $58,277,096. Exhibit 2.28 at 3033. The contract

award included: CUP2 expansion, $41,912,096; center building equipment-option 1A,

$7,200,000; and, phase 2A equipment-option 1B, $9,165,000. Id. at 3034-35. The amount

for CUP2 expansion included $392,096, which was an “allowance for the proper removal

and disposal of contaminated soils per ton, as specified in section 312335.” Id. at 3034.

51.

The portion of the contract that consisted of sections I, II, III, and IV was

referred to as the “agreement,” and it included project information, prices, terms and

conditions, and contract clauses. Exhibit 2.28 at 3058-92. The agreement directed Balfour

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to commence work within ten days of receipt of the NTP, and the substantial completion date

was 540 days from the NTP, with contract completion sixty days after substantial

completion. Id. at 3060. The liquidated damages rate was $3000 per calendar day. Id.

52.

The agreement required Balfour to “use a Critical Path Method (‘CPM’)

Project Schedule to plan, coordinate, and perform the Work.” Exhibit 2.28 at 3064. In

general, the contract required that the schedule “shall be a rational, reasonable and realistic

plan for completing the Work.” Id. Within thirty days from the NTP, the contract required

Balfour to submit its project schedule to the CO “describing the major design and

construction activities.” Id. Within thirty days after completing final design, the agreement

required Balfour to submit a revised project schedule. Id. at 3065. Finally, the agreement

required monthly schedule updates from Balfour. Id.

53.

The agreement incorporated by reference Federal Acquisition Regulation

(FAR) clauses: 48 CFR 52.211-12 (2015) (FAR 52.211-12 (SEP 00)), Liquidated

Damages–Construction; FAR 52.211-18, Variations in Estimated Quantity (APR 84); FAR

52.233-1, Disputes (MAY 14); FAR 52.236-2, Differing Site Conditions (APR 84);

FAR 52.236-3, Site Investigation and Conditions Affecting the Work (APR 84); FAR

52.236-7, Permits and Responsibilities (NOV 91); and FAR 52.243-4, Changes (JUN 07).

Exhibit 2.28 at 3086, 3089-90. For purposes of interpreting the specifications and drawings,

the agreement provided that “[d]ifferent requirements within the Contract Documents shall

be deemed inconsistent only if compliance with both cannot be achieved.” Id. at 3066. In

the case of inconsistency, the agreement set forth the following order of precedence:

(1)

(2)

(3)

(4)

(5)

(6)

Section IV of the Agreement

Sections I, II, and III of the Agreement

The Statement of Work

The Specifications

The Drawings

Exhibits and Attachments

Id. at 3069-70.

II.

Contract Performance

54.

On December 20, 2016, GSA issued to Balfour an NTP. Exhibit 7. Balfour

and GSA held a “kick off” meeting on that same date, and GSA advised Balfour that its

design team would have to “accommodate a change to 3.5MW generators inside of CUP 2

in lieu of 3MW generators.” Exhibit 1 at 74. GSA also changed the date for Balfour to

provide heating and cooling to the center building from September 2017 to December 2017.

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Id. After contract award, Balfour and HGA conducted a validation of the bridging

documents, which was required under the contract, section 011000. Exhibit 2.18 at 1601;

Transcript, Vol. 2 at 51.

55.

GSA issued revised NTPs on January 10 and 17, 2017. Exhibits 8, 10. The

revised substantial completion date under the terms of the contract, which was 540 days from

the NTP, was June 20, 2018, and the final completion date was August 20, 2018. Exhibit 10.

Balfour’s Schedule and Excavation of Contaminated Soil10

56.

On February 20, 2017, Balfour submitted its first monthly schedule

narrative. Exhibit 138 at 535539. Balfour acknowledged an NTP of January 27, 2017, and

a project duration to substantial completion of 540 days. Id. at 535541. Activity P1040,

“Submit Stormwater Management / E&S Permits for DOEE Stormwater Permits,” had a start

date of February 3, 2017, with a duration of one day and zero days of float. Id. at 535545.

Activity P1050, “DOEE Review / Issue Stormwater Management Permits (calendar days),”

had a forty-five day duration and zero days of float. Id. Activity A6140, “Mass Excavation

/ Demo Large Retaining Wall / Dewatering,” had a start date of April 19, 2017, and a finish

date of July 11, 2017, with zero days of float. Id. at 535547.

57.

On February 27, 2017, Procon Consulting LLC (Procon) prepared for GSA a

baseline schedule analysis of Balfour’s schedule. Exhibit 138 at 53555. Procon found

twenty-seven inconsistencies in Balfour’s schedule. Id. at 535565-66. Among those, Procon

noted in inconsistency 9 that “[t]he final baseline schedule should contain, at a minimum,

2,000 activities; presently there are only 217.” Id. Procon concluded by advising GSA that

“the baseline schedule is not compliant and recommends that the listed above

comments . . . be fixed.” Id. at 535566. GSA directed Balfour to resubmit the schedule. Id.

at 535537. Among the reasons for returning the schedule, GSA noted that Balfour’s schedule

included options not yet awarded, “lumped together” activities, and no allowance for weather

delays. Id.

58.

On February 22, 2017, Balfour applied to the DOEE for its E&S permit.

Exhibit 2339 at 3259. During that same time period, Balfour learned that GSA had not

performed a soil pre-characterization study as specified in the contract. Id. In an email dated

March 6, 2017, Balfour asked GSA to identify the firm that would be responsible for soil precharacterization. Exhibit 146 at 354155.

As stated in the introduction to this decision, this appeal consists of nineteen

separate claims. The facts unique to each claim are set forth chronologically in separate

sections.

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CBCA 6750

59.

On March 20, 2017, GSA revised section 31 2335 of the specification, which

made Balfour’s testing agency, rather than GSA, responsible for the pre-characterization

program. Exhibit 2127 at 57322-25. The revised specification stated, in pertinent part, the

following:

The Contractor’s Testing Agency COTR shall arrange for and conduct,

as [necessary], additional chemical testing required by the Contractorproposed receiving facilities. The types and frequencies of testing shall be

determined by the receiving facility. and approved by the COTR.

Government’s environmental consultant. Testing shall be conducted under

normal turnaround conditions (i.e., 2-week turnaround testing time).

Id. at 57325 (strikeouts and italics in original). Subsequently, GSA directed Balfour on

April 5, 2017, to propose a price for soil pre-characterization. Id. at 57284-85.

60.

Balfour contracted with GeoConcepts Engineering, Inc. (GCE) to conduct a

soil pre-characterization at the site, and GCE collected soil samples at test pits on June 29

and July 6, 2017. Exhibit 218 at 31235. GCE submitted a written report, which was dated

July 14, 2017, to Balfour. Id. at 31232. The report “noted that the concentrations of lead in

many samples were found to be at levels that might not be accepted at contaminated soil

recycling facilities such as Soil Safe, Inc.” Id. at 31244. On July 20, 2017, Balfour

submitted to GSA its request for change order (RCO) 015 for soil pre-characterization in the

amount of $390,047. Id. at 31225. In an email dated July 27, 2017, Balfour advised GSA

that it had completed the “upper half” of soil pre-characterization and requested direction for

proceeding with deeper exploration. Exhibit 2129. GSA directed Balfour to proceed. Id.

Balfour completed its soil pre-characterization program on August 23, 2017. Exhibit 2339

at 3260. Balfour encountered contaminated soil shortly after the start of excavation in

September of 2017, and its records showed that it hauled a total of 55,760 tons of

contaminated soil on ninety-three hauling days, from September 12, 2017, to July 19, 2018.

Exhibit 2340 at 5764-66; Transcript, Vol. 1 at 115 (Balfour’s witness testified that the

quantity removed was 55,906 tons).

61.

On January 23, 2018, GSA informed Balfour that the contract required

submission of a design-build network analysis schedule within thirty days of the NTP and

that Balfour had failed to submit an approved schedule. Exhibit 40 at 3337-38. GSA noted

that “[n]umerous promises to deliver a baseline schedule have not been met.” Id. at 3338.

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62.

Balfour submitted its revised schedule to GSA on January 25, 2018.11

Exhibit 330 at 224393. Activity P1115, “DOEE Review / Issue E&S permit,” showed a start

date of January 30, 2017, and a finish date of February 24, 2017, with zero days of float. Id.

at 224400. In the sitework section of the resubmitted schedule, Balfour showed for activity

A6010, “BBC Mobilize Site Trailers,” a start date of January 18, 2017, and a finish date of

January 26, 2017, with five days of float. Id. at 224406. Activity A6090, “Install

Construction Entrance / Access Road,” showed a start date of March 1, 2017, and a finish

date of March 15, 2017, with zero days of float. Id. Activity A6050, “Strip Site / Remove

Small Retaining Wall / Asphalt Sidewalk,” showed a start date of March 16, 2017, and finish

date the next day with zero days of float. Id. Activity A6150, “Relocate Site Lighting

Electrical Conduits,” had a start and finish date of March 16, 2017, with zero days of float.

Id.

63.

Balfour’s January 25, 2018, schedule submission for excavation, tiebacks, and

caissons showed a start date of March 18, 2017, and a finish date of July 26, 2017, which was

a 133-day duration. Exhibit 330 at 224406. Relevant activities during that 133-day period

| included start and finish dates for support of excavation (SOE) piles, excavation of six tiers

and the subgrade, caissons, and related activities such as lagging and drilling tiebacks. Id.

at 224406-07. Tier one installation of SOE piles consisted of two activities, one through

eighteen, with a start date of March 18, 2017, and a completion date of March 24, 2017, and

nineteen through thirty, with a start date of March 24, 2017, and a completion date of

March 28, 2017. Id. at 224406. Excavation at tier one began on March 28. Id. at 224406.

Tier two excavation, which consisted of two activities, followed with a completion of the

second activity on April 10, 2017. Id. Caisson installation had a start date of April 4, 2017,

and a finish date of June 22, 2017, which was an eighty-day duration. Id. Caisson

installation consisted of eight activities for seventy-one caissons. Id. at 224407. Caisson

design had an original start date of December 28, 2016, and, after GSA review, had a

completion date of March 6, 2017. Id. at 224399. Tier three excavation had a start date of

June 15, 2017, and excavation to tiers four, five, six, and the subgrade followed. Id. Caisson

installation constituted a significant period, eighty days, out of the 133-day duration for

schedule submission for excavation, tiebacks, and caissons. Id. at 224405. Completion of

caisson installation controlled the start of tier three excavation and, in turn, the excavation

of the remaining tiers and subgrade.

64.

On February 22, 2018, Procon reviewed Balfour’s schedule and noted that it

still had “outstanding issues” but “reluctantly advise[d] that the Baseline schedule be

Balfour’s January 23, 2018, schedule submission showed planned dates for

activities that had already occurred, and as shown in subsequent schedule updates, those

dates were not met.

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accepted as noted.” Exhibit 349 at 0176478. Additionally, Procon deferred to GSA and

AFG the final decision to accept Balfour’s schedule. Id. In an email dated March 19, 2018,

GSA advised Balfour that the substantial completion date was three months away and GSA

had not yet received a schedule. Exhibit 364 at 409150. Balfour submitted an updated

schedule on May 31, 2018, which projected a completion date of September 27, 2019.

Exhibit 392 at 616014.

65.

On June 29, 2018, Balfour submitted another updated schedule, which also

projected a completion dated of September 27, 2019. Exhibit 412 at 616050. Activity P1115

of the June 29, 2018, update, “DOEE Review / Issue E&S permit,” showed a start date of

February 22, 2017, and a finish date of May 3, 2017, with no mention of days of float. Id.

at 616052. Activity A6090, “Install Construction Entrance / Access Road,” showed a start

date of May 23, 2017, and a finish date of June 29, 2017, with no mention of days of float.

Id. at 616060. Activity A6050, “Strip Site / Remove Small Retaining Wall / Asphalt

Sidewalk,” showed a start date of May 25, 2017, and a finish date of August 4, 2017. Id. at

616060. Activity A6150, “Relocate Site Lighting Electrical Conduits,” had a start and finish

date of July 17, 2017. Id. Balfour did not assign any days of negative float to those

activities. Id.

66.

Balfour began excavation on September 29, 2017, at the first tier, and planned

to finish excavation at the subgrade on July 2, 2018. Exhibit 412 at 616061-62. The duration

for sitework, which included excavation, had a negative float of 236 days during the period

from March 3, 2017, to May 23, 2019. Id. At 616060. Activity A2540, “Substantial

Completion,” showed a finish date of May 29, 2019, with a negative float of 343 days. Id.

at 616085. The schedule update also showed that activity P1159, “Caisson Design - Revise

and issue [Issued for Construction (IFC)]” had a finish date of January 15, 2018. Id. at

616051. Balfour started caisson installation on January 15, 2018, and finished on March 5,

2018. Id. at 616061.

67.

On June 1, 2018, Balfour submitted RCO 062 to GSA, which claimed delay

costs for 334 calendar days in the amount of $5,815,307; that amount was revised upward

from the previous claimed amount of $4,716,558. Exhibit 2139 at 482776; Exhibit 93 at

6496. Balfour contended that the start of excavation was delayed when GSA modified the

contract and placed responsibility for soil pre-characterization on Balfour, which delayed the

start of excavation until September 5, 2017. Id. at 482778. Balfour had planned to conduct

excavation by using two shifts a day, but it was able to use only one shift per day due to the

amount of contaminated soil, which lengthened the duration of excavation. Id. at 482779.

Additionally, Balfour contended that contaminated groundwater and underground

obstructions further delayed excavation. Id. at 482779-80.

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68.

By letter dated September 4, 2018, GSA provided AFG’s delay analysis of

Balfour’s schedule updates from January 25, 2018, which was the baseline, and May 31,

2018. Exhibit 62 at 4996-97. AFG noted that the schedule updates made no mention of soil

pre-characterization, and Balfour was late in starting SOE activities, dewatering activities,

and caisson installation. Id. at 4496-98. AFG stated the following:

Per the baseline schedule the contractor was planned to start mobilization

18 Jan 2017. Per the May progress schedule the contractor did not actually

start mobilization until 3 Mar 2017, 44 [calendar days (cd)] later. The

narrative provided did not include an explanation for this delay. Per the

baseline excavation was intended to start . . . on 28 Mar 2017. Per the May

progress schedule, this did not actually start until 29 Sep 2017, 185 cd later.

The narrative indicates the materials testing and inspection being added to

Balfour Beatty’s scope by modification and the soil precharacterization had a

significant impact on the critical path of the schedule. . . . GSA does not

believe [Balfour] was prepared to start excavation activities indicated in the

[time impact analysis (TIA)].

....

Many activities along the critical path took longer than planned indicating

[Balfour] did not plan well. Activity A7970 Install SOE Piles 1-18 ended up

being driven by SB315000-170 Support of Excavation and

Underpinning–Order & Fabricate which per the May progress schedule

submission actually completed on 05 Sep 2017, 180 cd later than planned.

This activity appears to have slipped as a result of the additional 196 cd for

activity C1010 Bid and Award Support of Excavation/Underpinning Contract

and the additional 98 cd for activity SB315000-100 Support of Excavation and

Underpinning activity – prepare and submit submittals. Per the May progress

schedule, the slippage resulting from the extended duration of these activities

are [sic] actually what caused the excavation to not start until 5 Sep 2017.

Also, per the May progress schedule mobilization appears to have been

delayed due to activities SB316326-10 Stability Caissons–Prepare & Submit

and SB316326-170 Stability Caisson–Order & Fabricate Materials taking

longer than planned to complete. The slippage in the substantial completion

of the project is due to the delays in the caissons submittal activities along with

extended time to complete the installation of various caissons, drill and install

bracket piles, and the excavation, lagging and drilling for the 3rd tier tie backs.

The impact indicated in the narrative was not reason for this delay.

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Exhibit 62 at 4499-4501. Additionally, AFG stated that “[t]here are a total of 1139 critical

and near critical activities in the current Progress Schedule, 616 more than the baseline.” Id.

at 4501. That number “represent[ed] over 99.8% of the total remaining number of activities

in the schedule.” Id. AFG also noted that no more than twenty percent of such activities

should be critical or near critical. Id.

69.

GSA issued contract modifications in response to Balfour’s RCOs that paid

$6,275,550 for the increased cost of removing and disposing of contaminated soil and

extended the substantial completion date to May 31, 2019. Exhibits 81, 93, 2094, 2095,

2097, 2101, 2102, 2105, 2107, 2110, 2115, 2342 at 4-6.12 GSA, however, contended that

time extensions were only granted to keep the contract open for purposes of making

payments. Exhibit 2343. Accordingly, GSA did not compensate Balfour for the cost of

delay, and in its October 19, 2018, letter, Balfour reserved its right to claim that cost.

Exhibit 2143 at 741703.

IFC and Architect’s Supplemental Instruction (ASI) Documents

70.

On January 23, 2017, Balfour expressed its concerns about the change from 3.0

MW to 3.5 MW generators and the location of other equipment. Exhibit 2152 at 945981.

Balfour advised GSA of “bridging design deficiencies some of which will not support the

GSA approved final concepts.” Id. With regard to the change to 3.5 MW generators,

Balfour stated the following:

GSA has also issued a change request to upsize the 3.0MW generators

required by the bridging design documents to 3.5MW because these generators

do not have adequate capacity for their intended purpose. Localized floor to

floor height modifications of the structure on the B-1 and G-1 levels will be

required for these tier 4 generators to be installed with appropriate clearances.

Id. Additionally, Balfour noted that “[t]he structural foundation for the CUP2 . . . will not

properly support the building and equipment prescribed in the contract.” Id.

The contract modifications that paid increased costs for removal of

contaminated soil were the following: PS11, $693,003 (Exhibit 2094 at 16264); PS12,

$977,087 (Exhibit 2095 at 16270); PS13, $93,673 (Exhibit 2097 at 16275); PC16, $722,088

(Exhibit 2101 at 16177); PC17, $2,209,719 (Exhibit 2102 at 16183); PC19, $1,176,464

(Exhibit 2105 at 16198); PS21, $83,402 (Exhibit 2107 at 16286); PS25, $290,118 (Exhibit

2110 at 16301); and PS32, $29,996 (Exhibit 2115 at 16321).

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71.

Balfour’s meeting minutes from a January 31, 2017, building design variance

meeting addressed whether the 2.5MW generators to be moved from the MUP and the new

2.5MW and 3.5MW generators would require either a “Tier 2” or “Tier 4” permit.

Exhibit 2305 at 588205-06. Balfour noted that a Tier 4 permit would require “scrubbers”

that would increase the roof height at the G1 level. Id. at 588206. Additionally, Balfour

noted that “HGA provided a layout on the B1 level [that] will allow enough space for all

3.5MW generators to be installed with scrubbers.” Id. With regard to the mat slab, Balfour

stated that “Bridging Drawings show 18 [inch] mat foundation, but Silman calculations

provided in RFP show 24 [inch] mat foundation.” Id. at 588208. Additionally, Balfour

stated the following:

Punching shear calculation Silman came up with is different than what HGA

has. Both firms use the same program but there may be inconsistencies with

results. Firms to talk off-line about program processes to determine how to

resolve this.

Id. Finally, Balfour noted that its calculation reviews had indicated the option of either a

thirty-inch foundation “with deep foundations at columns and perimeter” or a uniform

forty-eight-inch foundation. Id.

72.

On February 8, 2017, Balfour sent GSA RFI D0017, which addressed other

issues related to the increased generator size. Exhibit 2153 at 514834. Balfour stated the

following:

Revisions to the B1 and G1 air intake and exhaust design to accommodate the

upsized 3.5MW generators inside CUP2 including the addition of a raised

grate at the B1 level to provide the required headroom and intake air. An

exhaust shaft with grating and safety railing is added in the grass cover on the

G1 roof.

Id. GSA’s response to Balfour’s February 20, 2017, submission of its schedule addressed

Balfour’s concerns about Tier 4 requirements for the generators, and GSA noted that the

Tier 4 requirements for the generators were established during the bidding process and no

schedule change was required because of the change from 3 MW to 3.5 MW generators.

Exhibit 138 at 535537. Balfour’s schedule showed that it completed submission of its design

package 2A, cooling towers, generators, and electrical gear on April 21, 2017, and design

package 2B, balance long lead equipment, and structural on May 25, 2017. Exhibit 412 at

616051-52.

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73.

On July 10, 2017, GSA issued bilateral modification PS06, in which Balfour

agreed “to provide all labor, supervision, equipment, and materials for the scope of work to

provide two (2) 3.5 MW generators inside the CUP2 in lieu of the 3 MW generators as an

ADD to the contract in the amount of $1,726,125.” Exhibit 2089 at 16233-35. That

modification did not authorize a time extension. Id. at 16235.

74.

On October 30, 2019, Balfour submitted RCO-076, “IFC and ASI Docs –

Owner Costs,” which totaled $2,892,858, for increased costs related to the bridging

documents and GSA’s direction to provide 3.5 MW instead of 3.0 MW generators. Exhibit

2076 at 2761. HGA, Balfour’s A/E subcontractor, claimed $164,933 for building revision

costs and $39,582 for mat slab and foundation walls. Id. at 2769, 2771. Generally, the added

costs were related to increasing the thickness of the mat slab and foundation walls, changing

air intake and exhaust, and changing roof height and design. Id. at 2766-71. Balfour’s

various subcontractors claimed costs related to the various contract divisions that included

concrete, masonry, metals, thermal and moisture protections, openings, finishes, equipment,

plumbing, HVAC, electrical, and exterior improvements. Id. at 2762-63.

Temporary Utilities to the Center Building

75.

By letter dated December 20, 2016, GSA summarized the “kick off” meeting

and informed Balfour that solicitation amendment 10 placed under CLIN 2 the requirement

for Balfour to provide utilities to the center building by September of 2017. Exhibit 1 at 74.

GSA stated the following: “In due diligence with the original bridging requirement based

on a September 2016 award, GSA request[s] the heating and cooling to be provided for the

center building by December 2017 in lieu of September 2017 in order to provide 365 days

to complete this task as initially promised.” Id.

76.

Several GSA employees who were involved with the CUP2 project met on

December 18, 2017, to discuss alternatives to using the CUP2 to provide heating and cooling

to the center building as it appeared that it would not be completed in time for move-in by

DHS. Exhibit 2171 at 428309; Transcript, Vol. 6 at 104-05. Their discussion included the

possibility of upgrading the MUP, which was to be demobilized, to provide temporary

utilities to the center building, and they also discussed the possibility of having that work

done by another contractor or Balfour. Exhibit 2171 at 428318. The view was also

expressed that Balfour “need[ed] to provide a solution or at least partial.” Id. A GSA

employee testified about the need for heating and cooling to the center building as follows:

You had to have heating and cooling to the building prior to its final

completion in order to close in. If you’re building a building, you’re installing

drywall you’re doing commission and all these other things, you can’t do

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without heating and cooling or else you start to build mold . . . . You don’t

start utilities the day before your planned occupancy.

Transcript, Vol. 6 at 105-06.

77.

On March 7, 2018, Balfour submitted its proposal, RCO 047, which was based

on its cost breakdown CE-0148, to upgrade the MUP to provide temporary utilities to the

center building at a cost of $2,550,143. Exhibit 2174 at 362079-84. Modifications to the

MUP included removal of existing chilled water pumps and hot water pumps and the

installation of two “trailer-mounted 500 ton air cooled chillers with integral pumps and

install piping to temporary connections to north side of MUP.” Id. at 362080. The trailermounted chillers were to be rented for a nine-month period. Id. Electrical work included the

installation of a temporary generator and fuel tanks. Id. During the preparation of its

proposal, Balfour did not plan on using the MUP to provide utilities to the center building.

Transcript, Vol. 1 at 240. Balfour’s witness testified to the following:

Just to clarify your testimony, you did not consider the MUP upgrade

as part of the contract because Balfour’s bid was already too high?

That was part of the reason. And quite frankly. I’ll be honest with you,

I don’t know that we ever contemplated the MUP being an option. It would’ve

been great. You know, if the Government would have perhaps, you know,

stated in the RFP that, you know, contractors are free to consider to use the

MUP. I’m just being honest with you.

....

And if we had been sharp enough, you know – we consider ourselves being

pretty sharp, but we weren’t sharp enough to figure that, you know, that the

MUP might be an option. But again, if we were to entertain the MUP,

obviously what we’re showing you today, it would’ve probably added another,

you know, $2.5 million, a little over $2 million to our proposal which was

already high to begin with is what I’m trying to explain.

Id. at 241-42.

78.

In an email dated March 8, 2018, GSA acknowledged receipt of Balfour’s

proposal for temporary utilities to the center building and directed Balfour to proceed with

the work. Exhibit 2174 at 362077-78. GSA stated the following:

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[t]his notice shall serve as a Notice to Proceed. You are hereby directed to

proceed with the scope of work defined under CE-0148 Temporary Utilities

to Center Building, Saint Elizabeths West Campus. It is intended that a formal

contract modification shall be executed within three weeks of the date of this

notice.

Id.

79.

On April 27, 2018, the CO executed unilateral modification PO15, which had

an effective date of March 8, 2018, and directed Balfour “to proceed with the MUP scope to

provide heating and cooling to the Center Building.” Exhibit 2099 at 995722-24. The

modification additionally stated the following:

The expansion of the MUP is NOT an out-of-scope add on project, as this

scope has always been a requirement under the . . . contract.

On March 20, 2018, [Balfour] was informed that the MUP upgrade was on

page 3 of Amendment #9 dated August 9, 2016, and issued under the

solicitation, and thus is base bid scope. This amendment was subsequently

incorporated into the Final Contract.

This [modification] provides [Balfour] the authority to dismantle, replace and

re-purpose existing government owned equipment at the Modular Utility Plant

as a temporary means in order to meet their contract timeline for providing

heating and cooling to the Center Building while their CUP2 construction is

delayed. This method was not approved at award.

Id. at 995724. On June 12, 2018, Balfour disputed GSA’s direction to proceed with

modifying the MUP at no cost and stated that it intended to request an equitable adjustment

for the cost of such work. Exhibit 2184 at 480071. On October 25, 2019, Balfour submitted

to GSA RCO 047R2 in the amount of $2,152,491 for the cost of providing temporary utilities

to the center building. Exhibit 2074 at 499.

Contaminated Groundwater

80.

By letter dated August 29, 2017, Balfour informed GSA that it had been

working on finding a groundwater discharge location and it had submitted a permit

application to DOEE on June 14, 2017. Exhibit 2192 at 993189. Balfour also advised GSA

that it had received a sampling well permit from DOEE on August 28, 2017, but it would still

have to develop a water treatment plan for DOEE. Id. Balfour, however, added that

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“contaminant levels were such that further classification of the groundwater was required per

DOEE in order to secure approval to discharge to the Municipal Separate Storm Sewer

System (MS4).” Id. In an email dated September 29, 2017, Balfour advised GSA of the

following:

After contract award, Balfour Beatty took samples of the groundwater, which

revealed that the groundwater does exceed the EPA Primary Drinking Water

Maximum Contaminant Levels criteria. As a result, Balfour Beatty cannot

pump the groundwater into the storm sewer without installing additional wells

for sampling and testing, and would have to chemically treat the groundwater

before pumping it into the storm sewer. At this time, the rough order of

magnitude of costs for sampling wells and testing, and subsequent chemical

treatment is $300,000.

Exhibit 2195 at 550594.

81.

On October 10, 2017, Balfour advised GSA that it had obtained from the

District of Columbia a permit to install thirteen sampling wells, but it had installed only two.

Exhibit 2198 at 828142. Balfour referenced an attached October 10, 2017, email from the

District of Columbia Water and Sewer Authority (DC Water) regarding the test results from

the two wells. Id. at 828144. DC Water informed Balfour that “[i]f you are in an MS4 area

and this is non-wastewater flow (i.e. groundwater or storm runoff), it cannot be discharged

to sanitary, as it does not exceed any of our discharge limitations. If you are in a combined

sewer area, then you may discharge to sanitary.” Id. at 828144. Balfour concluded its email

by stating that it had two options: “1) [c]ontinue with two more wells and testing, hoping for

favorable results to discharge to sanitary[; or] 2) [c]ontinue with balance of wells (11

additional, 13 total) to fully characterize the groundwater and submission to DOEE.” Id. at

828142. Finally, Balfour stated that “it is highly likely that we will need to discharge to

storm, but will require a chemical treatment system after full water characterization is

complete.” Id.

82.

By letter dated November 14, 2017, Balfour notified GSA that the groundwater

at the site was contaminated, which was a differing site condition. Exhibit 2201 at 805007.

Balfour contended that it had relied on HAI’s geotechnical report, which represented that the

groundwater “did not exceed any of the EPA National Primary Drinking Water Maximum

Contaminant Levels criteria.” Id. Based upon that reliance, Balfour intended to pump

groundwater into the storm sewer. Id.; Transcript, Vol. 1 at 149. After commencing work

at the site, Balfour learned that in May of 2007, GSA had received a report, which was

prepared by Greenhorne & O’Mara, Inc. (GOI), of a dioxin remedial investigation at the St.

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Elizabeths West Campus. Exhibit 2123; Transcript, Vol. 1 at 150. The report stated the

following:

Concentrations of detected chemicals, in particular metals, dioxins, and furans,

exceed various human health screening levels indicating the possibility of risk

to human health. The results of the human health screening do not necessarily

signify unacceptable risk, but rather, indicate that risk cannot be assumed to

be negligible and additional study of the potential for exposure and adverse

effects is warranted.

Exhibit 2123 at 58640.

83.

In an email dated February 16, 2018, DOEE forwarded to Balfour its “approval

letter, with monitoring and reporting conditions, to discharge groundwater to the District’s

Municipal Stormwater Sewer System.” Exhibit 2211 at 797728-29. On that same date,

Balfour’s email to DOEE acknowledged receipt of its letter that approved “[Balfour’s]

chemical treatment system and approval for discharges to the MS4.” Id. at 797728.

Additionally, Balfour stated, “We understand that the attached documents should satisfy all

remaining requirements to discharge to the MS4 and it is our intent to mobilize the treatment

system shortly and begin discharging within the limits of this authorization from DOEE.”

Id. The approval documents also included Balfour’s stormwater pollution prevention plan

(SWPPP), which had been prepared on April 14, 2017. Id. at 797730. On October 23, 2019,

Balfour submitted to GSA RCO 068R1 for costs related to contaminated groundwater.

Exhibit 88 at 5865. Balfour’s claim, which included subcontractor costs, totaled $1,411,519.

Id.

Buried Concrete Caissons and Foundations

84.

By letter dated November 14, 2017, Balfour notified GSA “of an unforeseen

buried concrete structure to the north of the Powerhouse (Building 56/57).” Exhibit 2230 at

818019. Balfour also stated that “[t]his structure was not shown on the bridging documents

or any as-built information . . . prior to submitting our design-build proposal for the CUP2

project.” Id. In an email dated January 24, 2018, Balfour summarized a previous discussion

with GSA’s representative that it was “authorized to proceed with obstruction removal and

will not stop work to await direction from GSA as long as notification has been provided to

GSA.” Exhibit 2236 at 99028. GSA responded to Balfour on January 25, 2018, and stated

the following:

As you know, there are a number of references in the contract bridging

documents regarding what is a differing condition. Structures consistent with

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coal handling equipment in a coal handling yard are not a differing

condition. Structures consistent with a railroad in a coal handling yard served

by railroad do not constitute a differing condition. Notice of underground

structures was provided with Bridging [documents].

Id. In general, Balfour contended that it had encountered underground obstructions that

included “bell” caissons, a buried coal bunker, and other unidentified obstructions.

Transcript, Vol. 3 at 100-11.13

85.

On May 22, 2018, Balfour submitted to GSA its request for equitable

adjustment (REA) in the amount of $597,029 for subsurface conditions. Exhibit 2239.

Balfour contended that it had encountered “shallow foundation footings and deep foundation

belled caissons” at the project site that were not indicated on the contract documents that

GSA provided before contract award. Id. at 767096. Additionally, Balfour contended that

shop drawings of the power house from 1955 showed the presence of nineteen subsurface

caissons. Id. at 767097. The 1955 drawings, however, were in GSA’s archives, and the

persons involved in preparing the solicitation did not know of the existence of those drawings

until after contract award. Transcript, Vol. 5 at 170-71, Vol. 6 at 163-64.

86.

Balfour submitted to GSA three RCOs for costs related to subsurface caissons

and other underground structures at the site. On May 23, 2018, Balfour submitted RCO

051R1, caisson obstructions, in the amount of $45,101, and RCO 052R1, remove existing

caissons, in the amount of $544,803. Exhibits 2240 at 944103, 2241 at 93152. On

August 28, 2018, Balfour submitted RCO 077, remove underground structure, in the amount

of $43,349. Exhibit 2243 at 988724.

100% Backup Power to the DOC A

87.

On June 12, 2017, Balfour submitted RFI D0051.2 to GSA regarding its

obligation under the contract to provide 100% backup power to the DOC A. Exhibit 2249

at 575644-45. Balfour stated the following:

Option 1 is as discussed in a meeting between GSA . . . and Design-Build team

on May 19, 2017. Option 1 has no cost.

Balfour’s witness drew a distinction between the “bell” caissons, which it

encountered during excavation, and the stability caissons that were later installed as part of

the project. Transcript, Vol. 3 at 107.

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However[,] while drafting this revision based on our discussion, we found a

flaw with this design. Per the bridging narrative, GSA plans to eventually

back up 100% of the DOC (9MW) from the MUP generators (See attached

table from bridging narrative). This option would be limited to only providing

emergency power to loads that are downstream from a DOC transfer switch

and at a maximum of 3.3MW because of the size of the DOC emergency

substation transformer. Backing up the rest of the DOC would require rework

of the normal feeders to the DOC so they could be connected to the generator

distribution as proposed in Option 2 below.

Id. at 0575645. Balfour proposed second and third options for providing 100% backup

power at additional costs of $200,000 and $240,000, respectively. Id.

88.

In its June 23, 2017, response to RFI D0051.2, GSA informed Balfour that

“[t]he interpretation is for [Balfour] to reconnect the DOC power sources from the MUP to

the CUP2. Not to increase redundancy.” Exhibit 2250 at 583169. On June 26, 2017, GSA

reiterated that same guidance in response to Balfour’s question as to whether it was supposed

to proceed with “Option #1.” Exhibit 2251 at 498039.

89.

By letter dated May 3, 2018, Balfour noted that GSA’s recent communications

stated that the contract required “emergency power backup to the DOC-A project for normal

power in addition to life safety loads.” Exhibit 2252 at 487434. Balfour contended that such

recent directions contradicted GSA’s direction with regard to RFI D0051.2. Id. In response,

GSA advised Balfour by letter dated May 14, 2018, that Balfour had failed to understand the

requirements of the contract. Exhibit 2253 at 771318. GSA’s letter stated the following:

The bridging drawing E610 only shows the 3MW Generators (now 3.5MW)

inside the CUP 2 to support the campus buildings and are described with

general notes. There is no reference what so ever to the DOC A generators or

emergency power. The only reference to DOC A is the normal power

connection. ZGF did not design the DOC A generator connection because

they gave clear direction to HGA/[Balfour] what needs to be designed and

accounted for in the bridging contract narrative documents. . . . The DOC A

normal load and emergency load are the same. This has never changed.

Id. On October 25, 2019, Balfour submitted RCO-069R1, 100% Backup Power to DOC-A,

in the amount of $311,630. Exhibit 2258 at 993522.

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Campus Loop and Expansion Tank Pressure

90.

On April 26, 2017, Balfour sent GSA RFI D0058, which sought clarification

as to its options for connecting buildings to the campus loop. Exhibit 2260 at 600942-44.

Citing section 10.2.3 of the bridging narrative, Balfour contended that it had two options,

which included either “a heat exchanger . . . [or] a ‘zero pressure’ bypass . . . called a

bridge.” Id. at 600944. In a subsequent April 28, 2017, email to GSA, Balfour requested a

meeting regarding its options for connections to buildings and stated the following:

We have two options

Include direct connections for Center B[uilding], there will be costs for

the three added 2,000 gal[lon] expansion tanks, which currently do not fit, nor

were accounted for in the bridging documents.

Provide heat exchanger at Center B[uilding] with no impact to [CUP2].

Exhibit 2262 at 613371.

91.

By letter dated June 8, 2017, Balfour notified GSA of a changed condition

regarding the pressurization of hot and chilled water for the campus loop. Exhibit 2267 at

509225. Balfour’s letter stated the following:

On April 26, 2017, we submitted RFI D0058 to document the information we

had at the time indicating potential over pressurization of the system and

requested design documents for DOC A and the Center Building which were

not provided as part of the RFP design Bridging Documents. Pursuant to this

RFI, a meeting was held on May 3, 2017 and follow-on RFI D0058.1 was

submitted to capture potential solutions discussed during this meeting.

Note that the Bridging Documents provided two options for connections

between CUP2 , the campus loop, and buildings they serve, one of which is a

direct or bridged connection and the other is a decoupled connection using heat

exchangers. As indicated in our proposal submission, we evaluated the option

to directly connect the buildings where elevations of these building[s] allow

and identified where heat exchangers would be required to isolate building

pressures.

Id. Balfour contended that GSA’s direction to develop schematics for both options was a

change to the contract. Id. Balfour also recommended the option that isolated the center

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building and the DOC A but noted that doing so would require additional expansion tanks.

Id. at 509225-26.

92.

On July 27, 2017, in response to Balfour’s RFI D0058.1 (campus loop

connection), GSA addressed the earlier May 3, 2017, discussion of “the connection between

the CUP2 Building, campus loop and the buildings it serves.” Exhibit 2274 at 562361. GSA

stated the following:

GSA is asked to “review the information provided and advise which option

GSA would like us to proceed with.” The RFI requests GSA choose one of

two offered solutions only. Technical solutions to the problems enumerated

with RFI 58.1 exist and should be utilized by the [engineer of record].

GSA will support placing heat exchangers into the Center Building, the DOC

A, and all future campus buildings. [Balfour] is to proceed to full 100%

design based on use of heat exchangers at building connections, not direct

connections.

Id. at 562365. In separate correspondence, which was also dated July 27, 2017, GSA stated

that Balfour “was well aware of the building connection concern prior to bid according to

[Balfour’s] own text.” Exhibit 24 at 3268. Balfour’s witness explained that the bridging

documents did not account for elevation changes that increased pressure within the campus

loop, which required additional expansion tanks and other equipment. Transcript, Vol. 3 at

21-22.

93.

On October 6, 2017, GSA issued unilateral modification PC09, which directed

Balfour “to provide design work to complete the heat exchanger design option in order to

separate the DOC A building from the campus loops.” Exhibit 2093 at 16165. The

modification obligated $90,000 and further stated that GSA would continue to negotiate a

final price with Balfour. Id. In its letter dated June 1, 2018, Balfour reiterated its position

to GSA that drawing M607 required only one expansion tank, each, for chilled water and

heated water. Exhibit 2290 at 482805. On January 21, 2019, Balfour submitted RCO 044R3

for the campus loop pressure class change in the amount of $305,997. Exhibits 81 at 4978,

2294 at 852231.

Legal and Consulting Fees

94.

Balfour received invoices from its legal counsel during the months of March,

April, and June through December of 2018, and January and March of 2019. Exhibit 2041

at 1840. Those invoices referenced the CUP2 project at St. Elizabeths but provided no

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further detail about the services rendered. Id. Delta Consulting Group (Delta) submitted

invoices to Balfour for the months of April, May, August, September, October, and

| November 2018. Exhibit 2059. Delta’s invoices for April and May of 2018, indicated

preparation of a request for a time extension. Id. at 1853-57. On October 21, 2019, Balfour

submitted to GSA RCO 092 for legal and consultant costs that totaled $252,800. Exhibit 585

at 945816. Balfour claimed legal fees in the amount of $180,662 and consultant fees from

Delta in the amount of $44,485. Id. at 945817.

Winterization of Additional Cooling Towers

95.

By letter dated January 23, 2017, Balfour informed GSA that “[t]he cooling

towers required in the mechanical equipment schedule on sheet M-606 of the bridging

documents cannot be provided with the ultra-low noise option specified.” Exhibit 1 at 165.

Balfour’s meeting minutes for the design review meeting, which occurred on January 31,

2017, noted the following:

Sizing for CUP loads

The Design-Builder reviewed all loads impacting cooling towers and

the model number in the bridging documents is not sized appropriately.

Multiple options were evaluated to meet all necessary requirements.

By adding an additional tower, all requirements can be met.

Id. at 171.

96.

In its letter dated July 12, 2017, Balfour submitted to GSA its proposal,

RCO-003R, for an additional cooling tower in the amount of $572,129. Exhibit 1 at 131.

On July 25, 2017, GSA issued bilateral modification PS07, “to provide all labor, material,

and equipment for an additional cooling tower for the CUP2, including associated piping,

startup and commissioning assistance.” Exhibit 2090 at 16242. That modification obligated

an additional $572,129. Id. Additionally, the modification provided that “[s]ettlement of this

change includes all associated costs, direct and indirect, impact and delay.” Id. at 16240.

97.

In an email dated November 30, 2018, the senior engineer for AFG, GSA’s

construction manager, raised with Balfour the question as to why only two of the five cooling

towers would be needed during the winter. Exhibit 2317 at 994250. In response, Balfour

asked why AFG was questioning an approved design. Id. In a subsequent email, which was

dated January 29, 2019, Balfour stated that the “[w]inter cooling loads are typically 10-15%

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of summer loads.” Id. at 994242. Additionally, Balfour represented that “2 cooling towers

cells (1300 tons each) winterized” have “N+1 capacity even in winter.” Id.

98.

GSA’s assistant chief engineer advised AFG’s senior engineer in a

December 21, 2018, email that “catastrophic failures” had been experienced and that “all

cooling towers be available for all operations at all times and in all weather conditions.”

Exhibit 2317 at 994248. The email further stated that “all towers must be heat traced and

have . . . fiberglass insulation on the exposed piping.” Id. In a subsequent email, which was

dated December 28, 2018, AFG’s senior engineer again asked Balfour why it believed that

only two cooling towers would be needed during the winter. Id. at 994246.

99.

By letter dated March 2, 2019, Balfour disputed AFG’s December 28, 2018,

email that sought justification for the use of only two cooling towers during the winter.

Exhibit 2317 at 994240. Balfour stated the following:

The RFP is clear that only one cooling tower shall be required for winter

operation. [Balfour] actually corrected a bridging design deficiency by

heat-tracing and insulated a second cooling tower to provide N+1 redundancy

during winter operation, for which we were never compensated and are

entitled to equitable adjustment.

Id. Balfour summarized its letter by stating its disagreement with AFG that all five cooling

towers require heat trace and condenser insulation. Id.

100. GSA’s March 15, 2019, letter advised Balfour that “[h]aving two available

cooling towers in the winter helps but does not meet what the government has expected as

a reliable, safe and efficient design as stated in [Balfour’s] RFP proposal dated July 27,

2016.” Exhibit 2314 at 847957. GSA stated that Balfour’s “design renders the government

to be limited to the same one to two cooling towers in the winter every year.” Id.

Additionally, GSA stated the following:

To have heat tracing of all towers is essential to operation, not a luxury or

redundancy factor.

Furthermore:

ASHRAE Standard 90.1-2013 expanded the use of economization in

more climate zones. For buildings that use winter economizers, the cooling

towers must operate year round.

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The Basis of Design for the cooling towers is Marley NC8414WCNB

cooling towers.

Manufacturer instructions describe de-icing procedures at the discretion

of operators. Recommended de-icing procedure includes reversing the fan

for 2 minutes, plus a 10 minute delay before re-starting the tower. When

N+1=2, one tower at a time may be down for repairs. De-icing plus having

one tower down could not occur at the same time unless HGA says we can

operate with zero cooling towers for 12 minutes. Therefore 2 towers insulated

is less than N+1 because de-icing is part of normal recommended operation.

ASHRAE point out it is more economical to operate all fans at the same

speed than taking single fans to full speed before starting the next. To

illustrate, if 2 towers are operational, running two fans at 50% uses 1/4 the

power of a single fan at 100%. Extending this to multiple towers means lower

fan energy use.

Page 12 of the Marley NC8414WCN8 cooling tower specification (see

attachment), references the Marley “Operating Cooling Towers in Freezing

Weather” technical manual.

Page 6 of the “Operating Cooling Towers in Freezing Weather”

technical manual (see attachment) requires the use of heat trace for lines filled

with water exposed to subfreezing ambient conditions.

Why did [Balfour] install and charge GSA for sump heaters in 4 towers

if only two would operate in winter? Limiting available towers means less use

of economizer mode. Operating more towers means more energy savings.

The predicted energy usage during operation normally has implications for

LEED.

The Contractor is to install the cooling towers in accordance with the

manufacturer’s recommendations.

Id. at 847958. Finally, GSA’s letter referenced the general terms of the contract that require

the contractor to validate and update equipment layout and requirements. Id. Marly’s

specifications, which were referenced in GSA’s letter, stated that “[w]hen the ambient air

temperature falls below 0º C, the water in a cooling tower can freeze.” Id. 847971.

Additionally, Marley’s specifications cited Marley Technical Report #H-003, “Operating

Cooling Towers in Freezing Weather,” which described how to prevent freezing during

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operation. Id. Marley’s technical paper, “Cold Weather Operation of Cooling Towers,”

noted that “[i]f a system is shut down without draining, heat must be added in exposed areas

as shown in Figure 17.” Id. at 847989 (emphasis in original). Figure 17 showed lines to the

cooling tower that were shaded to represent “[h]eat [t]raced,” and the caption showed

“[l]ocations which require heat tracing to protect from freezing in shutdown conditions

without draining.” Id. Finally, that technical paper noted that “ASHRAE Standard 90.12013 expanded the use of economization in more climate zones.” Id. at 847984.

101. On May 6, 2019, Balfour responded to the issues raised in GSA’s March 15,

2019, letter. With regard to the use of only two cooling towers during winter, Balfour argued

that “these towers are redundant to each other and can be rotated throughout the winter

season to achieve some level of diversification.” Exhibit 2314 at 847942. Generally,

Balfour argued that the use of all cooling towers during the winter would require “flows four

times greater than the system would require, thus wasting energy.” Id. Balfour did

acknowledge that the towers not used during the winter would have to be drained. Id. at

847943.

102. In response, GSA reiterated that Balfour’s design would limit GSA’s “ability

to operate if there is an issue with one or both of the only cooling towers you have chosen

to heat trace.” Exhibit 2314 at 847931. GSA also advised that it would no longer argue the

matter. Id. On October 4, 2019, Balfour submitted RCO 128 in the amount of $155,241 for

winterizing three cooling towers. Exhibits 93 at 6496, 2317 at 994252.

Relocation of Condenser Water Pump VFD Conduits

103. Balfour’s November 16, 2017, letter to GSA gave notice of a differing site

condition in which “[t]he feeder conduits from the main electrical room in the CUP1 out to

the VFD’s for the CUP1 condenser water pumps are in conflict with designed slab

penetration of the LL1 slab in CUP1 for the condenser water supply and return piping for

CUP2.” Exhibit 37 at 3320. Balfour contended that the conduits were not shown on any of

the provided as-built drawings, and it had taken x-rays to determine the location of the

conduits. Id. GSA was not aware of the existence of the conduits. Transcript, Vol. 6 at 204.

104. By letter dated December 13, 2017, GSA responded to Balfour’s notice of a

differing site condition and advised that “it remains [Balfour’s] responsibility to conduct

investigation, design, and successfully implement[] that design.” Exhibit 2318 at 98609.

GSA’s letter cited section 017300 of the specifications, which required the contractors “to

investigate and determine the existence and location of underground utilities and other

construction.” Id. GSA’s letter also noted that “[t]he standard of the electrical industry is

often not to show the exact conduit route.” Id.

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105. By letter dated June 14, 2018, Balfour responded to GSA’s December 13,

2017, letter, contending that Balfour had to change its design because the as-built drawings

for the CUP1 did not show the location of 480-volt conduits imbedded in the LL1 slab and

that failure to show those conduits would be unsafe. Exhibit 2049 at 1931. On May 20,

2019, Balfour submitted to GSA RCO 060R1 in the amount of $128,025. Exhibit 2322 at

943814.

Center Building Conduits Within CUP2

106. By letter dated September 17, 2018, GSA responded to Balfour’s previous

telephone call regarding responsibility for connecting conduit to the center building.

Exhibit 2061 at 1997. GSA noted that Balfour “owns the responsibility to design and install

conduit for the Center Building as an inherent part of the interim milestone of providing

infrastructure for utilities for the Center Building.” Id. With regard to RFI 14, which

addressed questions about drawing E504, GSA noted that it “describ[ed] the meeting point

of the conduits in [CUP2] yet to be designed.” Id. GSA’s witness testified to the following:

They’re asking – it says, Drawing E504 shows conduit for IT security, normal

power, emergency, and Control was running through the existing tunnel.

Please clarify what these conduits are feeding, where they originated, and

provide as-built for bidders to determine for routing. Think we might have

provided as-builts for the tunnel, which is actually part of what was on that

sheet. But these conduits go through the tunnel and ultimately end at the

center building and all this stuff, emergency power to the center building.

So there’s a pathway that has to get to the building. And my response was in

regards to where they terminate it inside the tunnel. There’s two big junction

boxes in the tunnel where these conduits terminate at because there’s already

existing conduit that runs and connects to the actual building. So in this scope

of work, Balfour Beatty only had to install conduit to those termination points

and into their CUP2 building to wherever they ultimately put their gear.

Transcript, Vol. 5 at 215-16. Balfour’s witness, a representative of Helix, testified to the

following:

So we had a requirement in our criteria bid documents, and subsequently, our

design solution to provide the raceways from our new switchgear to what was

shown on the floor plan as the building’s edge or foundation wall, and then, an

alternate contractor under a different contract adjacent to our building was

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going to take it from there and then pull in the conductors and terminate them

on both ends.

Id., Vol. 3 at 52.

107. By letter dated January 31, 2019, Balfour’s electrical subcontractor submitted

its claim to Balfour for the cost of providing conduits from the existing utility tunnel.

Exhibit 2061 at 1979. Helix contended that “[t]he conduits were only shown within the

utility tunnel.” Id. at 1980. Additionally, Helix argued that “GSA’s current position [was]

that the CUP2 contractor would provide these conduits in accordance with routing to be

determined in the future.” Id. at 1982. On February 8, 2019, Balfour submitted to GSA

RCO 096, “Center Bldg Conduits within CUP2,” in the amount of $104,453. Id. at 1968.

The majority of the amount of that claim, $90,966, was for costs claimed by Helix. Id.

at 1970.

CUP1 Structural Overpour

108. On August 29, 2018, Balfour’s subcontractor, Lane Concrete Frames (Lane),

submitted to Balfour a claim for additional reinforcing. Exhibit 2062 at 2203. By letter

dated August 30, 2018, HGA submitted to Balfour a request for additional design services

due to unforeseen conditions. Id. at 2194. HGA contended that “[d]uring excavation it was

discovered that the East wall of CUP1 was out of plumb and alignment.” Id. Consequently,

HGA determined that all disciplines would be affected and proposed changes to structural

drawings at a cost of $7075.29. Id. at 2195. Balfour’s design “was such that the east

foundation wall for [CUP1] served as the west foundation for [CUP2].” Transcript, Vol. 3

at 182. Balfour “actually did not have foundation walls on the west side of [its] building.”

Id. Once Balfour began its survey, it discovered that “the thickness of the [CUP1] wall in

some locations was drastically thicker than what was indicated, up to four feet thick, when

it was supposed to be a foot-and-a-half or two feet thick.” Id. at 183. On December 14,

2018, Balfour’s subcontractor Power Component Systems, Inc. (PCS) submitted a claim for

the additional cost of core drilling due to the additional thickness of the CUP1 wall. Exhibit

2062 at 2196. By letter dated March 19, 2019, another subcontractor, Kirlin, submitted a

claim in the amount of $28,345, which was due to the CUP1 structure wall thickness. Id.

at 2240. Kirlin also advised that it had already completed the work and was requesting a

change order. Id.

109. In its February 14, 2019, letter, Balfour submitted RCO 073 in the amount of

$80,880 for costs related to discrepancies between the CUP1 foundation drawing S1.01,

which was part of the solicitation, and the actual thickness and location of the foundation.

Exhibit 2062 at 2002. Balfour contended that the differing site condition was material

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because “the bridging documents indicated a wall thickness of 711mm, while existing

conditions varied in thickness between 711mm to 1016mm, while location of the wall varied

up to 305mm into the [CUP2] building footprint.” Id. at 2003. On October 25, 2019,

Balfour submitted an amended RCO 073R1, increasing the amount sought to $102,168. Id.

at 2005-06. Balfour’s claim included amounts claimed by Kirlin, Lane, and PCS. Id.

at 2006.

Initial Oil Fill

110. Balfour’s letter to GSA, which was dated May 16, 2019, contended that GSA

was responsible “for the final fill of the fuel oil and urea tanks for the [CUP2] project.”

Exhibit 2066 at 2254. Balfour did acknowledge that it was responsible “for urea and fuel oil

consumed during the start-up and commissioning process, as well as the transfer of the fuel

oil and urea from the existing MUP generators to [CUP2].” Id. Balfour further contended

that it did not “owe any fuel oil or urea beyond that provided to support start-up and

commissioning activities.” Id.

111. In an email dated May 15, 2019, from GSA to ZGF, GSA’s project manager

raised the issue of whether Balfour “owe[d] the government a full tank.” Exhibit 541 at

42473. GSA also asked about the absence of sections 23 1313 and 23 1323 in the

specifications. Id. In an email that same day, ZGF informed GSA’s project manager that

“[t]he above ground fuel oil tanks were included in section 231113.” Id. at 42472. ZGF

noted in an email dated May 17, 2019, that “there is not a specific requirement for [Balfour]

to provide filled fuel oil tanks for the project.” Id. at 42469. GSA’s project manager,

however, pointed out to ZGF in an email that same day that “section 014200 defines Provide

as . . . means to design, procure, furnish, install and commission, as required, complete in

place and ready for full use.” Id.

112. On May17, 2019, GSA’s project manager informed Balfour that “[j]ust because

the bridging documents do not tell you how many gallons of fuel to put into the new fuel

tanks that you are providing per contract does not exclude you from providing fuel.”

Exhibit 2068 at 2277. Additionally, GSA’s project manager stated that if Balfour provided

empty fuel tanks, it was not providing full use of the generators and tanks for emergency

power. Id. On October 22, 2019, Balfour submitted RCO 115 in the amount of $86,995 for

the costs of filling three fuel oil tanks with 31,747 gallons of “#2 diesel fuel oil.”

Exhibit 2070 at 2281. The total capacity of the three tanks was 79,887 gallons. Id.

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SOE Pile and Tieback Drilling Obstructions

113. In a September 7, 2017, email to GSA, Balfour advised that it “had

encountered concrete and steel at pile 11 along the north wall line.” Exhibit 254 at 439916.

Balfour contended that “[t]his obstruction had pushed the drill rig off line and plumb despite

numerous [efforts] to remove items.” Id. By letter dated July 18, 2018, Balfour submitted

notice of a differing site condition related to numerous obstructions encountered during

excavation of soldier piles and tiebacks.” Exhibit 2052 at 2289. Balfour contended in

reference to drawing AD103 that those obstructions “were not noted or reasonably inferable

on the Bid Documents in the areas where obstructions were encountered during soldier pile

and tieback drilling operations.” Id. Work tickets from the period September 7 to

October 25, 2017, from Balfour’s subcontractor noted eight tie-back delays that lasted from

one to three-and-a-half hours and three SOE pile delays that lasted from one to

four-and-one-half hours. Id. at 2294. The subcontractor reported extra time drilling through

concrete or steel obstructions. Id. at 2297-319.

114. On July 18, 2019, Balfour submitted RCO 059. Exhibit 2052 at 2289. On

October 25, 2019, Balfour submitted an updated RCO 059, in the amount of $63,993, for

costs related to SOE tieback and drilling obstructions. Id. at 2290. On December 5, 2019,

Balfour submitted a revised RCO 059R1 for that same amount. Exhibit 93 at 6496.

Increased Fuel Supply Design

115. On January 31, 2017, Balfour and GSA met to discuss the bridging design, and,

among those matters discussed, Balfour represented that the bridging documents required the

contractor to provide two 20,000-gallon fuel oil tanks for the generators that could only

provide emergency power for twenty-four hours. Exhibit 2305 at 588208-09. However,

GSA publication PBS-P100 required that fuel tanks provide seventy-two hours of emergency

power. Id. Balfour’s RFI D0011.1, which was dated February 2, 2017, proposed three

32,000-gallon fuel oil tanks to meet the required seventy-two-hour run time. Exhibit 2018

at 2442-44. Balfour based the fuel oil requirement on three 3.5 MW and four 2.5 MW

generators. Id. at 2444. Rather than being able to build upon the design in the bridging

documents, Balfour had to go “backwards” in order to complete the design for the

installation of three, instead of two, fuel tanks. Transcript, Vol. 2 at 203.

116. On June 19, 2017, HGA claimed increased design costs in the amount of

$34,904 for providing three, instead of two, fuel oil tanks. Exhibit 2056 at 2437. HGA

contended that the additional costs were related to the increased space required for three

tanks and access to the tanks. Id. In an email dated September 6, 2018, GSA advised

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Balfour that additional design costs were not reimbursable because “[a]ll design cost[s] are

inclusive to the base scope and are typical to design build.” Exhibit 2332.

117. By letter dated September 11, 2018, Balfour submitted RCO-010R3, in the

amount of $818,729, for the “direct job cost” of deleting two 20,000-gallon fuel tanks and

adding three 26,629-gallon custom sized fuel tanks. Exhibit 2057 at 2450. Balfour’s cost

did not include design costs. Id. On October 3, 2018, GSA issued modification PC18 that

increased the contract price in the amount of $818,729 for increased fuel oil storage capacity.

Exhibit 2103 at 16184-86. On October 22, 2019, Balfour submitted RCO-010.1R1, in the

amount of $39,635, for design costs related to the increased fuel oil tank capacity.

Exhibit 2056 at 2435. That amount included HGA’s design cost of $34,904, which was a

100% design cost. Id. at 2441.

Repair of Brick Pilasters

118. In a memorandum dated October 2, 2017, to Balfour from Bell Architects

(Bell), Bell advised Balfour of the results of its September 28, 2017, survey of the condition

of the north wall of building 56/57, the power house, after excavation. Exhibit 2048 at 2471.

Bell contended that excavation “had exposed additional areas of deterioration beyond what

was identified in the Historic Structures Report (HSR) by [WJE].” Id. By letter dated

November 1, 2017, Balfour’s subcontractor Berkel & Company Contractors, Inc. (Berkel)

advised Balfour of the condition of below-grade brick masonry and pilasters that had been

exposed after excavation at the north wall of building 57, which was part of the power

house. Exhibit 2033 at 2513. Berkel’s letter noted that “[t]he level of the deterioration in

the brick masonry that was previously below grade results in diminished structural capacity.”

Id. at 2514.

119. By letter dated November 14, 2017, Balfour gave notice to GSA of a differing

site condition due to concerns about “deterioration and damage to the structural masonry

pilasters on the Powerhouse.” Exhibit 2048 at 2466. Balfour cited the presence of loose and

wet soil inside the building. Id. Also, Balfour stated that it “was not afforded the

opportunity to tour Building 56/57 during the site walk or at any time prior to the bid date.”

Id. Finally, Balfour noted that “we are not able to safely complete our contract work to

install underpinning below the Powerhouse building foundations.” Id.

120. In its letter dated November 16, 2017, GSA responded to Balfour’s notice of

a differing site condition at the power house. Exhibit 2048 at 2486. With regard to the

facade brick, GSA noted that the growth of trees in the brick facade above grade had been

documented before bidding, and Balfour had no reason to expect a different condition below

grade. Id. Similarly, GSA informed Balfour that the presence of wet soil in the power house

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had also been disclosed before bidding. Id. In a subsequent email dated November 17, 2017,

GSA challenged Balfour’s contention that it had been denied the opportunity to tour the

power house before bidding but also acknowledged the lack of any documentation as to those

areas that were toured on April 15 and July 8, 2016. Id. at 2487. GSA’s witness testified

that repair of the pilasters “would be in their base scope if they felt they needed to make

repairs in order to underpin, as they knew the condition of the building.” Transcript, Vol. 6

at 226.

121. On June 13, 2018, Balfour submitted RCO 063, in the amount of $30,166, for

the repair of brick pilasters at building 57. Exhibit 2048 at 2451. On October 22, 2019,

Balfour updated RCO 063 to reflect an amount of $29,130. Id. at 2452. The largest portion

of Balfour’s claim was for costs, which totaled $25,995, from United Building Envelope

Restoration, LLC (UBER). Id. at 2456. UBER’s claim consisted of the following:

Pressure wash 7 brick piers.

Point/replace broken/missing brick at six piers.

Rebuild face of brick pier as indicated in referenced Memorandum.

Approximately 600 brick included

Mortar type N per Memo. Color to match existing

Repair brick @ door opening

Pointing mortar to match existing

Id. By letter dated July 15, 2019, Balfour issued a change order to its subcontractor

Strittmatter Metro, LLC (Strittmatter) that included a back charge in the amount of $2691

for brick damage at building 57. Id. at 2463. Balfour’s claim included a credit for that

amount. Id. at 2452. Also, Balfour’s claim noted with regard to mortar “type N” that

“[c]olor matched to existing as approved by GSA historical architect.” Id. A photograph of

the side of building 57 shows the area damaged by Strittmatter and a typical repaired pilaster.

Id.

Telecom Security Scope

122. On April 17, 2017, Balfour submitted RFI D0010.1, which sought further

clarification on telecom and security requirements. Exhibit 2023 at 2534. Balfour stated the

following:

The RFP is silent on telecom/security requirements. As a response to RFI

D0010 and review comments received in BP-1, we received a layout of door

security, phone and camera requirements, sizing requirements for the telecom

room to be included in CUP2, and details for device infrastructure.

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Id. In a subsequent letter, dated June 8, 2017, Balfour referenced a May 9, 2017,

design-build team meeting, and Balfour concluded that “a dedicated telecom closet within

the CUP2 building [was] not accounted for in [the] RFP bridging documents.” Exhibit 2026

at 2521.

123. On October 4, 2018, GSA issued modification PC18, which obligated

additional funding for RCO 56R1 “to provide all labor, materials, and equipment to provide

an additional telecom room, so the project receives the required IT services.” Exhibit 2031

at 16184, 16192. GSA, however, advised Balfour in a previous email, which was dated

September 6, 2018, that it would not fund the design costs for that additional telecom work

as it was already part of Balfour’s proposed design costs. Exhibit 2332. On October 24,

2019, Balfour submitted RCO 056.1, in the amount of $13,825, for the design costs related

to the telecom room. Exhibit 2026 at 2523.

Electrical Gear Size Increase

124. By letter dated May 19, 2017, Balfour informed GSA that “[t]he Normal and

Standby electrical gear scheduled in the Design Package 2A drawings have been upsized to

address several concerns.” Exhibit 2328 at 99202. Citing sections 10.2.4 of the bridging

narrative and 6.5.2.3 of the P-100, Balfour contended that the “main switchgear must have

25% spare capacity and circuit capacity.” Id. Additionally, Balfour asserted that the

National Electrical Code (NEC) sections 430.24 and 220.18A “require[d] that the total

calculated load be based on 125% of the largest motor load plus the sum of the other

connected loads.” Id.

125. On September 12, 2018, Balfour submitted RCO 002R1, electrical gear size

increase, to GSA in the amount of $1,827,540. Exhibit 2058 at 2558. On October 3, 2018,

GSA issued modification PC18 that provided funding in the amount of $1,827,540 for “all

labor, materials, and equipment to increase the size of the Normal and Standby electrical gear

to accommodate future loads of [the] campus, as the building design docs didn’t fully depict

the size of electrical equipment.” Exhibit 2103 at 16189. GSA, however, did not allow

additional funding for the design related to the increased electrical gear size. Exhibit 2332.

On October 21, 2019, Balfour submitted RCO 002.1 to GSA, in the amount of $13,159, for

the design costs related to the increase of electrical gear size. Exhibit 2058 at 2559.

Automatic Transfer Scheme for Unit Substations

126. On November 29, 2017, Balfour submitted to GSA RFI 0063, which requested

guidance as to whether substations required Kirk-Key interlocks. Exhibit 2334 at 48126.

Balfour noted that “[t]he bridging documents showed Kirk Keys, however, page 175 of the

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2015 P100 required auto-transfer.” Id. GSA’s December 19, 2017, letter directed Balfour

to comply with the P-100 and “proceed with auto transfer scheme.” Exhibit 2335 at 93934.

127. By letter dated January 4, 2018, Balfour submitted to GSA a notice of a

changed condition because of GSA’s direction to proceed with an automatic transfer scheme.

Exhibit 2336. GSA’s email, which was dated February 2, 2018, acknowledged that “[t]he

automatic transfer switch is required on double ended switch gear in accordance with the

2015 P-100.” Exhibit 2037 at 2757. By letter dated March 2, 2018, Balfour submitted RCO

038R2, in the amount of $389,177, for the costs of providing an automatic transfer scheme

for unit substations. Exhibit 2040 at 2566. On October 11, 2019, GSA issued modification

PS26, which obligated $300,000 for an automatic transfer scheme for unit substations.

Exhibit 2111. On October 23, 2019, Balfour submitted to GSA RCO 38.1, in the amount of

$1693, for the design costs related to providing the automatic transfer scheme. Exhibit 2040

at 2568.

III.

Completion of the Contract

128. By letter dated September 25, 2019, GSA informed Balfour that the CUP2

project was accepted as substantially complete as of September 19, 2019, and GSA further

advised Balfour that final acceptance would be within sixty days from that date. Exhibit 82

at 4986. Contract modification PA29, which was dated December 30, 2019, extended the

period of performance completion date to February 1, 2020.14 Exhibit 601 at 16160. The

duration of the contract from NTP, January 17, 2017, to the date of substantial completion,

September 19, 2019, was 975 calendar days, and the duration from NTP to performance

completion, February 1, 2020, was 1110 days.15 The final contract price under modification

PS37, which had an effective date of October 5, 2020, was $79,385,175.16 Exhibit 617 at

16352. GSA did not assess liquidated damages. Transcript, Vol. 1 at 20.

Contract modification PS32, which was dated February 12, 2020, extended the

contract completion date from February 1 to May 5, 2020, and contract modification PS36,

which had an effective date of June 5, 2020, extended the contract completion date to

June 30, 2020. Exhibit 615 at 16343. Those “contract modifications were issued for

administrative purposes to extend the contract time for specific work only.” Exhibit 623

at 616472.

Balfour contends that the contract duration was 1132 calendar days.

Appellant’s Post-Hearing Brief at 71.

Balfour contends that the contract price increased by 36%. Appellant’s PostHearing Brief at 71.

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IV.

Balfour’s Claim and the COFD

129. Balfour submitted various RCOs to GSA, during and after the contract

performance period, that totaled $34,559,023. Exhibit 93 at 6496. Out of that total, GSA

approved payments that amounted to $21,208,124. Id. On February 26–27, 2019, Balfour

and GSA engaged in a mediation at the Board, but the mediation did not result in any final

settlement. Exhibit 86 at 5816. On November 1, 2019, Balfour submitted to the CO its

claim in the amount of $13,350,899. Id. Balfour’s claim is summarized in the table below:

Subsection

Description

Damages

Contaminated Soil in Excess of Contract Allowance (RCO $4,716,558

No.062R2)

IFC and ASI Docs – Owner Costs (RCO No. 076)

Temporary Utilities to Center Building (RCO No. 047R2) $2,152,491

Contaminated [Groundwater] (RCO No. 068R1)

Subsurface Caissons and Foundation

(RCO No[s]. 051R2, 052R2, 077R1)

DOC A 100% Emergency Backup (RCO No. 069R1)

Campus Loop and Expansion Tank Pressure Class $289,723

Specifications (RCO No. 044R3)

Legal and Consulting Fees (RCO No. 092R1)

Winterization of Three Additional Cooling Towers (RCO $155,241

No. 128)

Relocation of Condenser Water Pump VFD Conduits $128,025

(RCO No. 060R1)

Center Building Conduits within CUP2 (RCO No. 096)

ASI-020, ASI-022 [CUP1]Structure Overpour (RCO No. $102,168

073R1

Provide Initial Fuel Oil Fill – Bridging Volume (RCO No. $86,995

[115])

$2,867,313

$1,411,519

Elements $610,548

$311,630

$252,800

$104,453

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SOE Pile and Tieback Drilling Obstructions (RCO No. $63,993

059R1)

Design Costs – Increased Fuel Oil Storage Capacity (RCO $39,635

010.1R1)

Repair of Brick Pilasters at Building 57 (RCO No. 063)

Design Costs – Telecom

(RCO No. 056.1R1)

and

Security

Scope $13,825

Design Costs –

(RCO No. 002.1

Gear

Size

Increase $13,159

Design Costs – Automatic Transfer Scheme for Unit $1,693

Substations (versus Kirk Keys) (RCO No. 038.1)

Total

Electrical

$29,130

$13,350,899

Id. at 5818-19.

130. The contracting officer, in a COFD dated December 31, 2019, denied Balfour’s

claim in its entirety. Exhibit 1 at 22. Balfour’s claim and the COFD’s findings for each of

the above RCOs is set forth below.

Contaminated Soil in Excess of Contract Allowance (RCO No.062R2)

131. Balfour claimed delay costs for 334 calendar days in the amount of

$5,815,30717 that resulted from removing 55,906 tons of contaminated soil, which was fifteen

times the 3550-ton estimate of contaminated soil in the solicitation. Exhibit 86 at 5824. In

its claim, Balfour contended that the start of excavation was delayed from March to

September of 2017 because GSA changed the contract requirement for soil precharacterization. Additionally, “[t]he duration of [Balfour’s] work was effectively doubled

. . . when no local facility was available to accept a second shift of excavated contaminated

Balfour’s post-hearing brief references adjusted costs based upon the audit of

its claim instead of the costs set forth in its claim. Appellant’s Post-Hearing Brief at 69.

Balfour, however, is appealing the COFD, which references the costs set forth in Balfour’s

claim. This decision cites those claimed costs. As this appeal does not involve quantum, the

Board does not find the evidentiary record to be sufficiently developed to make any

determination regarding the validity of Balfour’s adjusted costs.

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soil disposal.” Id. at 5825. Finally, Balfour attributed its delay to the additional factors of

contaminated groundwater and underground obstructions. Id.

132. The CO denied Balfour’s delay claim, finding that the claimed delay was due

to “late mobilization for excavation, late approval of permits from DOEE, late dewatering

activities, and late caisson activities.” Exhibit 1 at 10. The COFD also referenced a

January 23, 2018, letter from GSA that had informed Balfour that the submission of an

approved schedule was more than a year past the NTP date. Id. at 44. The COFD also

referenced GSA’s September 4, 2018, letter to Balfour, see Exhibit 62, that noted that the

contractor caused delays related to “late mobilization for excavation, inability to properly

plan construction, late approval of permits from DOEE, late dewatering activities, and late

caisson activities.” Exhibit 1 at 10.

IFC and ASI Docs – Owner Costs (RCO No. 076)

133. Balfour claimed $2,867,313 for the costs related to GSA’s direction to change

the specified 3.0 MW generators in the contract to 3.5 MW generators. Exhibit 86 at 5826.

According to Balfour, the change in generator size resulted in an increase of the height of the

G1 and B1 levels, which also required the design of a “pop-up roof.” Additionally, the

increased generator size required the design of the intake and exhaust airways. Id. Those

changes in design required additional materials, such as concrete and masonry and

mechanical equipment. Id. Finally, Balfour contended that the increased generator size also

required an increase in the size of the fuel tanks, and Balfour had to redesign the room that

housed the fuel tanks with the addition of hatches to access the tanks. Id. at 5827. Finally,

Balfour alleged the following:

In addition, the changes driven by the increased generator size also resulted in

costs in the form of concrete, masonry, and other miscellaneous expenses.

These included a reduction in the number of building columns as the grid

spacing was revised. The overall heavier loads per column required a more

robust foundation system. More specifically, the weight of the perimeter walls

was not accounted for in the original mat foundation analysis performed in the

Bridging Design Documents. To account for the weight GSA had not taken

into consideration, [Balfour’s] final geotechnical report, prepared during the

Bridging Design Validation Process recommended a revision from 30 pounds

per cubic inch (pci) to 50 pci.

Id.

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134. The COFD denied Balfour’s claim for increased costs related to the generators

and determined that Balfour had not begun its design when GSA directed the change in

generator size, and Balfour’s proposed increase of $1,726,125 for the bilateral modification

should have included those costs related to the change. Exhibit 1 at 10-11. With regard to

Balfour’s increased costs related to airflow, the COFD contended that Balfour had to comply

with DOEE requirements for emissions, and Balfour was at fault for not accommodating in

its design the “Selective Catalytic Reduction units” that have to be installed on top of the

generators. Id. at 11. With regard to Balfour’s claim for additional material costs, the COFD

referenced section 011000 of the specifications that placed responsibility for completing

design with the contractor. Id.

Temporary Utilities to Center Building (RCO No. 047R2)

135. Balfour claimed $2,152,491 for providing temporary heating and cooling and

backup power to the center building. Exhibit 86 at 5827. “The interim solution proposed by

Balfour . . . and accepted by GSA . . . consisted of a temporary upgrade and expansion of the

existing [MUP] and of the emergency generator at the Main Electric Service Vault (MESV).”

Id. Balfour worked with GSA to finalize a design, and Balfour completed the work. Id.

at 5828. Subsequently, GSA issued a unilateral modification to the contract for providing

temporary services to the center building with no additional funding. Id. Balfour contended

that “[t]his functionally resulted in GSA giving itself double recovery at [Balfour’s] expense

for an issue that GSA itself caused, by forcing [Balfour] to take on mitigation work at no cost

while GSA’s only contractual right to assess damages for delay was through imposing

liquidated damages.” Id.

136. GSA denied Balfour’s claim for the cost of providing temporary utilities,

heating, and cooling to the center building by modifying the MUP. Exhibit 1 at 11. The

COFD noted that the contract required Balfour to provide utilities to the center building

within 365 days after the NTP, but GSA extended the due date for providing utilities to

April of 2018 because of delays during construction at the center building. Id. at 11-12.

Balfour, however, had not made sufficient progress on the CUP2 project to provide utilities

by that date, and Balfour proposed modifications to the MUP to provide temporary utilities.

Id. at 12. The COFD also contended that GSA never agreed to pay for those modifications

to the MUP. Id.

Contaminated Groundwater (RCO No. 068R1)

137. Balfour claimed that it was entitled to $1,411,519 for the costs related to

treating and removing contaminated groundwater, which it contended was a differing site

condition. Exhibit 86 at 5829. In support of its claim, Balfour argued that “the contract

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documents indicated that the water was not contaminated and even met [EPA] standards for

drinking water.” Id. Balfour described the groundwater at the site as “both too clean to be

discharged into the DC Water sanitary water system for treatment and too dirty to permit

discharge to [the] Coast Guard HQ containment pond (then to the MS4 system and ultimately

into tributaries [to the Chesapeake Bay]).” Id. at 5830. Due to those circumstances, Balfour

had to pump water from a lower to higher elevation at the site to storage tanks. Id. Initially,

Balfour had to haul away the groundwater in the tanks, but it later received a discharge

permit from DOEE that required Balfour to treat the groundwater at the site. Id.

138. The COFD denied Balfour’s claim for costs related to removing contaminated

groundwater. Exhibit 1 at 12. The COFD’s reasons for denying that part of the claim

included the fact that the contract required the contractor to obtain all necessary permits from

DOEE for dewatering, and Balfour’s proposal addressed risk mitigation that included the use

of an alternate method of collecting the discharge of groundwater into temporary tanks at the

site. Id. The COFD determined that Balfour and its subcontractor used a method of

dewatering the site similar to that discussed in its proposal. Id.

Subsurface Caissons and Foundation Elements (RCO Nos. 051R2, 052R2,

077R1)

139. Balfour contended that it was “entitled to $610,548 under the Differing Site

Conditions and Changes clauses after encountering subsurface elements where none had

been indicated and where GSA had specifically represented that any subsurface elements had

been removed.” Exhibit 86 at 5831. Those subsurface elements included “enormous

concrete foundation elements, including shallow foundation footings, reinforced foundation

walls and slabs, and extensive deep foundation belled caissons.” Id. Additionally, Balfour

contended that GSA had superior knowledge of the existence of those foundation elements.

Id. Attached to its claim, Balfour included two drawings dated March 18, 1955, which

showed the dimensions and locations of the bell caissons and other concrete structures. See

Exhibits 2001, 2002. Those drawings, numbers 7-1 and 7-2, respectively, showed structural

details for replacement of coal handling equipment at St. Elizabeths Hospital, which was a

GSA PBS project. Id.

140. The COFD denied Balfour’s claim for costs related to subsurface conditions.

Exhibit 1 at 13. In response to Balfour’s contention that GSA did not represent the existence

of the subsurface conditions encountered, the COFD noted that the solicitation included a

HSR on the power house, building 56/57, that described and showed the adjacent railroad

tracks, railroad trestle, and coal handling structures. Id. The COFD noted that the subsurface

conditions Balfour encountered did not materially differ from the conditions shown in the

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CBCA 6750

contract nor did they “differ materially from those ordinarily encountered and generally

consistent with having a coal handling yard.” Id.

DOC A 100% Emergency Backup (RCO No. 069R1)

141. Balfour claimed $311,630 under the Changes clause. Exhibit 86 at 5832.

Citing a “latent defect” in the bridging documents, Balfour stated the following:

The Contract Narrative requires 100% of DOC A’s 9 mega volt amp (MVA)

normal power load to be backed up by generator power. . . . However, while

[Balfour] was performing its post-award design validation, it discovered a

latent error in the Bridging Documents: DOC A’s power feeders could not, in

fact, be connected to paralleling gear as intended for the provision of

emergency backup generator power.

Id. at 5832-33. Balfour contended that GSA first directed that it proceed with an option

consistent with the bridging documents, but GSA then directed Balfour to proceed under a

second option with providing not only emergency power, but also normal backup power to

the DOC A. Id. at 5833. Additionally, Balfour acknowledged that “Campus Electrical Load

Table . . . require[d] 100% of DOC-A’s 9 MVA normal power load to be backed up by

generator power.” Id. However, Balfour also argued that “by GSA’s own specifications

DOC A paralleling gear could not be connected directly to the power feeders.” Id. “As a

result, [Balfour] had to relocate the DOC A feeds and add additional feeds, conduit, cabling,

and breakers.” Id.

142. The COFD denied Balfour’s claim for providing 100% backup power to the

DOC A. Exhibit 1 at 15. Citing the bridging documents, the COFD noted the following:

30% Bridging design drawing E601 shows possible allotted space available for

DOC, Pump House, West Addition and Center Building on the Normal Power

switchgear. There is no indication or direct language from the bridging team

on where and how to connect DOC. . . . Each bridging document pertaining

to the DOC including the narrative pages 63, 66 and 30% bridging drawing

E601 show varying levels of information to which if all were compared for

coordination they achieve the same goal; 100% emergency power to the DOC.

[Balfour] did not assess the bridging documents in its entirety to complete the

design as Engineer of Record.

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CBCA 6750

Id. The COFD also acknowledged “that the level of detail in the 30% bridging design

documents will not have the level of detail to specifically tell [Balfour] how to get power to

DOC A.” Id.

Campus Loop and Expansion Tank Pressure Class Specifications (RCO No.

044R3)

143. Balfour claimed $289,723 for the cost of changes related to the campus loop

pressure specifications. Exhibit 86 at 5833. In support of its claim, Balfour argued that

“GSA’s choices of heating and chilled water equipment in the Bridging Design Documents

failed to account for the actual pressure of the campus loop.” Id. Finally, Balfour argued

that it had to install “additional heating and chilled water expansion tanks and upgrade

boilers, hydronic pumps, and suction diffusers to higher pressure ratings in order for the new

heating / cooling system to handle the campus loop pressures in accordance with required

design standards.” Id. However, Balfour also acknowledged that GSA had issued contract

modifications that did not fully compensate it for the changed work. Id.

144. In denying Balfour’s claim for costs related to the campus loop and tank

pressure, the COFD found that Balfour’s proposal recognized that each building would be

“connected either through a heat exchanger or directly connected via a decoupling ‘bridge.’”

Exhibit 1 at 16, 125. The COFD determined that “[t]he design solution to evaluate the

expansion tank pressure class and two preexisting systems (heat exchanger and direct

connection) was and always has been a part of [the] base contract and does not account for

a change.” Id. at 16.

Legal and Consulting Fees (RCO No. 092R1)

145. In its claim, Balfour sought recovery for legal costs, $180,661.50, the cost of

a scheduling consultant, $44,486, and its overhead and other administrative costs, which

totaled $252,800. Exhibit 86 at 5834. Balfour contended that those costs were related to its

RCOs and REAs. Id. The COFD denied that portion of Balfour’s claim, finding that it was

“too vague to determine reasonableness.” Exhibit 1 at 16.

Winterization of Three Additional Cooling Towers (RCO No. 128)

146. Balfour claimed $155,241 for the cost of winterizing three cooling towers because the

bridging documents required only winterization of one cooling tower. Exhibit 86 at 5834.

Balfour conceded that winterizing two cooling towers was necessary for “N+1 redundancy.”

Id. It argued, however, that instead of requiring the winterization of only two cooling towers,

GSA improperly required winterization of all five. Id.

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CBCA 6750

147. The COFD denied Balfour’s claim for winterizing three cooling towers and

rejected Balfour’s assertion that the RFP “explicitly” required winterizing only one cooling

tower. Exhibit 1 at 16. Additionally, the COFD noted that “[c]ontract modification 07 was

not issued . . . due to bridging design defects. [Balfour] could not procure cooling towers

that met contract specifications at the capacity recommended by the 30% bridging design.”

Id. at 16-17. Finally, the COFD noted that Balfour’s proposal for a fifth cooling tower

included “associated piping, startup, and commissioning.” Id. at 17. The COFD concluded

that “GSA understands ‘associated piping’ to include winterization piping and all required

piping to be consistent with ‘industry standards.’” Id.

Relocation of Condenser Water Pump VFD Conduits (RCO No. 060R1)

148. Balfour claimed that it was entitled to $128,025 under the Differing Site

Conditions and Changes clauses when it encountered “previously undisclosed 1 ½ [inch]

electrical conduits carrying 480 volt circuits in an existing concrete slab within the [CUP1]

building.” Exhibit 86 at 5836. Also, Balfour contended that the presence of those conduits

“meant that these electrical feeders would need to be relocated in order . . . to be able to make

the large condenser water supply and return piping penetrations required in the existing

[CUP1] floor slab.” Id. The COFD denied the claim because Balfour did not determine the

location of conduits before completing its design. Exhibit 1 at 17.

Center Building Conduits within CUP2 (RCO No. 096)

149. Balfour claimed that it was entitled to $104,453 for costs largely incurred by

Helix for the installation “of normal and emergency conduits for electrical feeders to the

Center Building.” Exhibit 86 at 5386. Those conduits, according to Balfour, were not part

of the scope of the contract. Id. Additionally, Balfour argued that drawing E504 only

showed required conduits within the utilities tunnel. Id.

150. The COFD denied Balfour’s claim for center building conduits, finding that

RFI 14 and drawing E504 described “the meeting point of the conduits in [CUP2] yet to be

designed.” Exhibit 1 at 17. Additionally, the COFD noted that drawing E504 showed “a

clear continuation of conduit into CUP.” Id. at 18. Finally, the COFD noted the following:

There is no note stating cut/cap. The drawing clearly shows the conduit

penetrating through the wall into [CUP2]. Beyond that, the Design Build team

is responsible for coordinating the final location of these conduits with [CUP2]

as the 30% bridging documents do not dictate the final location of switchgear.

REDACTED VERSION

CBCA 6750

As stated before, the bridging package is not a fully coordinated design

package. The intent was not to direct and coordinate the [Design Build] team

where to install their conduits in CUP2. Drawing E504 was provided to help

coordinate an existing structure where conduit needs to be installed.

Id.

ASI-020, ASI-022 CUP1 Structure Overpour (RCO No. 073R1)

151. Balfour claimed that it was entitled to $102,168 for costs incurred because the CUP1

concrete foundation walls were thicker than indicated in contract drawing S1.01. Exhibit 86

at 5839. According to Balfour, “[t]he walls were also constructed much thicker than

indicated in GSA’s as-built drawings.” Id. As a result, Balfour contended that it “incurred

additional costs for surveying; redesign of structural, architectural, and mechanical

disciplines; demolition of the substantially thicker concrete foundation walls; the need to use

different demolition equipment to adjust to the thicker concrete; additional reinforcement

design, fabrication, and installation for the structural concrete, and re-coordination of all

chilled water pumps; and the addition of piping offsets to accommodate this change.” Id.

152. The COFD denied Balfour’s claim for the structure overpour. Exhibit 1 at 18.

Quoting section 0110000 of the specifications, the COFD noted that the bridging documents

“may not exactly depict the existing ‘as constructed conditions.’” Id. Additionally, the

COFD determined that Balfour had incurred additional costs because, “[a]gainst good

judgment and industry practice[, Balfour] completed its design without field

verification.” Id. at 19.

Provide Initial Fuel Oil Fill – Bridging Volume (RCO No. 115)

153. In its claim, Balfour contended that it was entitled to recover $86,995 for the

cost of providing fuel oil for the CUP2 standby power equipment. Exhibit 86 at 5839.

Balfour argued that “[t]he Contract does not require [Balfour] to provide fuel oil.” However,

Balfour acknowledged its agreement to provide fuel oil for the commissioning process and

the transfer of fuel oil from the MUP generators to the CUP2. Id. Balfour disputed GSA’s

reading of the contract that required the tanks to be “ready for full use.” Id. at 5839-40.

154. The COFD denied Balfour’s claim for the cost of filling the tanks for the CUP2

generators in excess of the amount used for startup. Exhibit 1 at 19. The COFD noted that

“[providing] empty fuel tanks . . . does not meet the base contract requirement to provide full

use of the emergency power of [CUP2] and phase 2 buildings.” Id. Additionally, the COFD

noted that “[t]esting and start up is not full use.” Id.

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SOE Pile and Tieback Drilling Obstructions (RCO No. 059R1)

155. Balfour claimed entitlement to $63,993 for “the removal of unforeseen

obstructions it encountered while installing support of excavation and soldier piles and

tiebacks.” Exhibit 86 at 5840. According to Balfour, “[n]ot only were the obstructions not

included in the Bid Documents, GSA expressly assured [Balfour] that there were no such

obstructions when [Balfour] asked.” Id. Additionally, Balfour contended that it had asked

GSA in RFI 48 “if there were any existing foundations and structures within the limits of the

excavation.” Id. at 5841. Citing GSA’s reference to drawing AD103 in it reply to RFI 48,

Balfour contended that it encountered obstructions that were not depicted in that drawing.

Id. Finally, Balfour contended that GSA had superior knowledge “of the shallow foundation

footings and existing underground structures well before commencement of the Project–but

failed to disclose the information to [Balfour] until January 26, 2017, after award.” Id.

156. The COFD denied Balfour’s claim for SOE pile and tieback drilling

obstructions because it asserted that GSA did not have superior knowledge of below grade

structures. Exhibit 1 at 19. Although Balfour alluded to 1955 drawings18 in support of its

argument that GSA had superior knowledge, the COFD pointed out that those drawings “did

not provide significant detail differing from the information [Balfour] had already . . . in its

possession.” Id. Finally, the COFD noted that the contract required Balfour to complete the

design of the CUP2, and Balfour did not investigate the location of the project. Id.

Design Costs – Increased Fuel Oil Storage Capacity (RCO 010.1R1)

157. Balfour claimed $36,635 for design costs related to providing three, instead of

two, fuel oil tanks for the generators. Exhibit 86 at 5843. In support of its claim, Balfour

contended that “[t]he heavier custom fuel tanks involved additional hoisting labor, an

upgrade to the fuel maintenance and polishing system, custom piping, venting, and sleeving

work, as well as other associated adjustments.” Id. The COFD denied Balfour’s claim for

design costs for the three fuel oil tanks, finding that the contract required the contractor to

complete the design. Exhibit 1 at 20.

Repair of Brick Pilasters at Building 57 (RCO No. 063)

158. In its claim, Balfour sought $29,130 for repairs to brick pilasters at the power

house under the Differing Site Conditions and Changes clauses of the contract. Exhibit 86

at 5844. Balfour contended that the only work required under the contract was the

Those drawings from 1955 were discussed in the Board’s background section

with the heading “Buried Concrete Caissons and Foundations.”

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underpinning of the power house, and repair or restoration to the power house was not part

of the contract. Id. Citing Berkel’s evaluation of the power house, Balfour contended that

the power house had structural integrity issues and repairs were “required in order to

maintain its structural integrity and eliminate a significant safety risk.” Id. at 5845.

159. The COFD denied Balfour’s claim for repairs to the brick pilasters. Exhibit 1

at 20. With regard to Balfour’s contention that it encountered an unforeseen condition, the

COFD noted that Balfour should have been aware of the condition of the power house from

the historic structure report in the bridging documents and the site inspection opportunities

before award. Id. With regard to the repairs, the COFD stated the following:

GSA did not direct [Balfour] to do work beyond the base scope and does not

owe compensation for such. It was only when [Balfour’s] subcontractor struck

building 57’s pilaster and caused further damage, [Balfour] decided to repair

all pilasters at its own expense.”

Id.

Design Costs – Telecom and Security Scope (RCO No. 056.1R1)

160. In its claim, Balfour sought entitlement to $13,825 for designing a telecom

closet, “which included door security, phone and camera requirements, sizing requirements

for the telecom room to be included in CUP-2, and device infrastructure.” Exhibit 86 at

5845-46. While acknowledging that GSA issued modification PC18, which paid for the cost

of the telecom closet, Balfour contended that it had it not been paid for the design. The

COFD denied that portion of Balfour’s claim, citing section 011000 of the specifications that

required the contractor to complete the design. Exhibit 1 at 20-21.

Design Costs – Electrical Gear Size Increase (RCO No. 002.1)

161. Balfour claimed $13,159 for design costs related to the increase in electrical

gear size. Exhibit 86 at 5846. Citing NEC and PBS P-100 requirements, Balfour contended

that the bridging documents did not meet electrical gear size requirements. Id. Although

GSA issued modification PC18, which added funds in the amount of $1,827,540 to the

contract for the increased electrical gear size, Balfour still claimed the increased design costs.

Id. The COFD denied Balfour’s claim for design costs, finding that section 011000 of the

specifications required the contractor to complete the design. Exhibit 1 at 21.

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Design Costs – Automatic Transfer Scheme for Unit Substations (versus Kirk

Keys) (RCO No. 038.1)

162. Finally, Balfour claimed entitlement to $1693 for design costs related to GSA’s

direction to use an automatic transfer scheme for unit substations instead of an interlocking

system, Kirk Keys, which was specified in the design narrative. Exhibit 86 at 5846. While

acknowledging that it was able to agree to construction costs for the change, Balfour alleged

that GSA would not pay for the design costs related to the change. Id. at 5847. The COFD

denied Balfour’s claim for design costs, finding that section 011000 of the specifications

required the contractor to complete the design. Exhibit 1 at 21-22.

Delay Analysis Reports

163. As part of its preparation for the hearing of this appeal, Balfour employed Delta

to write a report on the extent to which GSA delayed Balfour’s completion of the contract.

Exhibit 2339. In response, GSA employed the Rhodes Group (Rhodes), which prepared a

response to Delta’s report. Exhibit 623. The authors of both reports testified at the hearing.

Delta’s Report

164. Delta determined that completion of the contract was delayed 339 calendar

days, which was slightly more than Balfour’s claimed delay of 334 days. Exhibit 2339 at

3259. That delay consisted of two consecutive periods. Id. at 3259-60. The first period of

delay, “Window 1,” was a 171-day delay from March 18, 2017, Balfour’s planned date to

start excavation, to September 5, 2017, when Balfour actually commenced excavation. Id.

at 3259, 3282. The second period of delay, “Window 2,” was a 168-day “excavation

prolongation delay” in addition to the planned 132-day baseline duration for excavation from

September 5, 2017, to July 2, 2018. Id. at 3259, 3283. Delta followed a methodology of

“Forensic Schedule Analysis.” Id. at 3262. The expert’s report elaborated on its

methodology as follows:

[R]etrospective, in that the analysis was performed after the delays had

occurred,

observational in that it used the actual Project schedules and contemporaneous

documents to quantify the loss or gain of time along a logic path as opposed

to inserting modeled delay activities,

was based upon the Static Logic of the Project Schedule, which uses the

network logic on the as built longest path, and

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was Periodic, which measured delays in various time periods.

Id. at 3263.

165. With regard to Window 1, Delta determined that excavation had been delayed

from March 18, 2017, which was Balfour’s planned start date for excavation, to September 5,

2017, when Balfour began excavation. Exhibit 2339 at 3265-70. That period of delay was

due to GSA’s modification of the contract that made Balfour responsible for soil precharacterization, instead of GSA. Id. Delta’s report noted that Balfour’s submission of its

E&S permit application was no longer critical once GSA directed Balfour to perform soil

pre-characterization, which lasted from May 1 to August 23, 2017. Id. at 3259-60. The

author of Delta’s report testified that he “determined that there was no critical path delay

caused by the contractor.” Transcript, Vol. 7 at 133. He contended that “it’s very rare that

you would have two activities caused by two different parties along the critical path at the

same time.” Id. He contended that “once they knew that pre-characterization was going to

take some time, they slowed down this whole effort of getting the site work in place.” Id.

at 135. Finally, he described Balfour’s contract performance as “pacing” because “it took

longer than what was planned, but that was intentional.” Id.

166. The second period of delay, Window 2, was 168 calendar days during the

period from September 5, 2017, to July 2, 2018, less the 132 calendar day period that Balfour

had scheduled for excavation. Exhibit 2339 at 3259. The disposal of contaminated soil

required Balfour’s subcontractor to travel greater distances for disposal. Id. at 3272. Delta’s

report noted that Balfour planned sixty-eight workdays for hauling soil for disposal at a rate

of 1000 tons per day, but the greater distances required for hauling contaminated soil to

disposal sites increased that number to ninety-three days. Id. Delta concluded that the

inefficiency resulted in 107 days of delay. Id. at 3283.

167. Delta identified other periods of delay during the period from September 5,

2017, to July 2, 2018. Exhibit 2339 at 3270-84. Those included twenty days due to

underground obstructions, thirteen days due to contaminated groundwater that flooded the

subgrade, and twenty-eight days due to the ripple effects of those causes of delay. Id. With

regard to the twenty days of delay assigned to underground obstructions, Delta cited

subcontractor claims for a total of 157.25 hours over a period from September 7, 2017, to

June 5, 2018. Id. at 3278. With regard to the thirteen-day delay related to contaminated

groundwater, Delta noted that Balfour did not have a dewatering system until March 13,

2018; instead, Balfour had to pump and store water from the site in tanks for later disposal.

Id. at 3279-80. Balfour’s pumps failed to work on January 2, 2018, resulting in flooding at

the subgrade for thirteen days, and work resumed after installation of a French drain system

and crane mats. Id. at 3280. Finally, Delta determined that twenty-eight days of delay from

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the ripple effect were due to the shifting of excavation work to the fall and winter. Id. at

3281.

Rhodes’ Report

168. GSA submitted Rhodes’ delay analysis in response to Delta’s report.19

Exhibit 623 at 616463-64. Rhodes noted that while the contract required Balfour to achieve

substantial completion within 540 days and contract completion sixty days later, on

August 20, 2018, actual completion did not occur until February 1, 2020, which increased

the as-built duration of the contract from 601 to 1131 calendar days.20 Id. at 616472. In

general, the report noted the following:

The Rhodes Group determined that Delta’s methodology and resulting

conclusions, which is ultimately a total time approach, are flawed and

unsubstantiated. In addition, Delta’s delay assessment and assignment of

responsibility for delay is based on an incomplete review of the Project records

and is therefore further unsupported.

Notwithstanding the flaws in Delta’s analysis discussed above, The Rhodes

Group determined that no more than 148 [calendar days (CDs)] are potentially

compensable in Window 1, and Delta failed to substantiate that any of the 168

CDs of alleged delay in Window 2 are compensable.

Id. at 616464.

169. With regard to Window 1, Rhodes did not dispute that Balfour submitted its

E&S permit application on February 24, 2017, but disputed Delta’s finding that the

application ceased to be critical to the start of excavation, which Balfour intended to start on

March 18, 2017. Exhibit 623 at 616490. Rhodes noted that “Delta failed to recognize the

fact that the E&S permit was required to be obtained prior to starting excavation on 18 March

2017 and [Balfour] did not even learn about the need to perform the Precharacterization

Program until 21 March 2017 – after the excavation was supposed to start.” Id. Rhodes

noted that before the start of excavation, Balfour had to install the construction entrance and

access road, relocate electrical conduits, strip the site, and remove a small retaining wall, but

GSA’s September 4, 2018, letter set forth AFG’s delay analysis. Exhibit 62.

Rhodes did not include the additional contract extension periods under

modifications PS32 and PS35 for the pu

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