GRANTED IN PART: March 26, 2018

GRANTED IN PART: March 26, 2018

CBCA 5410

BCPEABODY CONSTRUCTION SERVICES, INC.,

Appellant,

v.

DEPARTMENT OF VETERANS AFFAIRS,

Respondent.

Robert M. Carpenter, President/Chief Executive Officer of BCPeabody Construction

Services, Inc., Lutz, FL, appearing for Appellant.

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

Charleston, SC, counsel for Respondent.

Before Board Judges BEARDSLEY, GOODMAN, and RUSSELL.

BEARDSLEY, Board Judge.

BCPeabody Construction Services, Inc. (BCPeabody) timely appealed from the denial

of its certified claim. It asserts entitlement to suspension of work damages in the amount of

$175,778, costs incurred for additional architectural and engineering (A/E) design services

in the amount of $68,904, and extra and changed work totaling $73,864.26 under a firmfixed-price design build task order issued by the Department of Veterans Affairs (VA).

BCPeabody also appealed the VA’s claims for $115,294.93 for unused equipment costs and

$17,501.13 for reprocurement costs. Additionally, BCPeabody alleged that the VA breached

its implied duty to act in good faith and deal fairly with BCPeabody under the task order.

CBCA 5410

2

The parties submitted the appeal for a decision on the record pursuant to Rule 19 of the

Board’s rules. 48 CFR 6101.19 (2016).

We find that BCPeabody is entitled to $13,700.54 for personnel costs and $13,282 for

general conditions costs as a result of the unreasonable suspension of the work, but not

unabsorbed home office overhead costs. We find that BCPeabody is also entitled to damages

in the amount of $34,900 for additional A/E design services and $63,644.16 for extra and

changed work. The VA did not breach the duty of good faith and fair dealing. The VA is

not entitled to costs for unused equipment or reprocurement costs. The total awarded to

BCPeabody is $125,526.70.

Findings of Fact

The VA awarded firm-fixed-price task order VA248-12-J-4502 (task order) under

contract VA248-C-1851 to BCPeabody on June 29, 2012, to renovate nutrition and food

service (N&FS) areas in buildings 101 and 102 of the Bay Pines Veterans Affairs Medical

Center in Bay Pines, Florida. The task order required BCPeabody to provide “full design,

all labor, tools, materials, equipment and supervision to renovate the kitchen areas in

buildings 101 and 102.” The work included all “structural, architectural, utilities, and

equipment as needed to meet the design.” The task order directed BCPeabody to renovate

one building at a time to allow the VA to continue its mission.

Additional Architectural and Engineering Design Services

BCPeabody received the notice to proceed on or about July 9, 2012. BCPeabody was

supposed to complete the design of both kitchen areas within sixty days from the notice to

proceed, or by September 7, 2012. Instead, the VA approved the design on or about May 10,

2013, or 245 days later. The task order called for “all new equipment” except for the “dish

machines currently in place.” The new equipment supplied by BCPeabody was to be “driven

by the design, however, for bidding purposes” the equipment specified in the task order was

“probable at a minimum for each building.” Instead and as a result of late coordination with

the N&FS staff in November and December of 2012, the equipment list was revised to

require BCPeabody to reuse thirty to forty percent of the existing equipment. While the task

order documents were “intended to define existing conditions,” it was discovered late in the

design process that the VA’s plans did not represent the actual operating heating, ventilation,

and air conditioning (HVAC) system. The equipment changes and HVAC discovery required

a major rework of the electrical and mechanical design.

At a meeting on February 26, 2013, the design team realized that the kitchens would

be used to grill food using grease, requiring a different hood and configuration. Although

CBCA 5410

3

BCPeabody asserts that it was told that there would be no grease cooking, the drawings, early

equipment list, and early design indicated that griddles would be used, and the specifications

specifically called for a “griddle with hood” and “a dedicated grease hood exhaust system.”

BCPeabody claims $68,904 in costs for additional A/E design services required as a

result of the VA’s design changes. Specifically, BCPeabody claims:

$32,000 for the rework of kitchen equipment new/used, rework of all electrical

systems, rework airflow systems (record plans incorrect), rework plumbing

plans, two additional site visits for programming and as-builts.

$28,000 for modifications to kitchen operations and electrical load, design of

new hood, ansul system, cleaning system, rework of airflow system in kitchen,

design to bring 45 KVA system to 75 KVA, additional site visit to evaluate

existing electrical system.

$2,000 for Erik Stor’s[1] additional time needed for added requirements of

design. ($50/hr. @ 40 hrs.)

$640 for Adam Goetz’s[2] additional time needed for added requirements of

design. ($16/hr. @ 40 hrs.)

BCPeabody claimed ten percent profit and overhead for the additional design services.

Suspension of Work

Per the Suspension of Work clause in the task order, the VA notified BCPeabody at

a November 4, 2013, meeting that the work would be suspended in building 101 for as long

as four months. The reason for the suspension was that patients using the dining room could

not be relocated to allow for the renovation to begin. The VA issued several suspension of

work letters to BCPeabody starting on November 6, 2013. The first letter read:

BCPeabody Construction Services, Inc. is hereby directed to Suspend Work

for thirty days ending on Friday 6 December. The suspension of work is

1

Erik Stor was a senior vice president for BCPeabody until June 2013. During his

tenure as senior vice president, he was the “focal point” for the project. From June 2013 to

November 2013, Mr. Stor worked as an independent contractor on the project.

2

Adam Goetz was a project manager for the project.

CBCA 5410

4

effective immediately. A decision will be made on or before Friday 6

December on whether to extend or lift the suspension of work.

Each of the five letters issued read substantially the same way, except that the suspension

periods identified in each letter varied from twenty-three days to sixty days. A meeting was

held on April 14, 2014, to discuss the contractor’s remobilization and request for equitable

adjustment related to the suspension. At the meeting, the parties agreed that the work would

restart on May 5, 2014. The suspension of work lasted for 179 days.

During the suspension, BCPeabody shifted its tradesmen and foremen to other jobs,

but it alleges that it did not shift its project leadership due to the potentially short duration

of the suspension. BCPeabody claims $9367.21, Adam Goetz’s full salary for his work as

project manager during the suspension. Mr. Goetz stopped working on the project on

January 31, 2014. The contracting officer agreed that the costs claimed for Mr. Goetz “have

merit” and were supported by the record. Kevin Osborne served as project manager on the

project starting on February 1, 2014. BCPeabody claims compensation for one hundred

percent of Mr. Osborne’s time during the suspension period, or $21,529.98, even though he

was identified as the project manager on several other BCPeabody projects for the same time

period. In support of BCPeabody’s claim, Mr. Osborne testified by affidavit that he spent

forty hours per week on this project and another forty hours per week on other BCPeabody

projects. The contracting officer determined that Mr. Osborne only spent eight hours per

week on this project during the suspension, for a total cost of $4333.33. The superintendent,

Mr. Dalton, also worked on other projects during the suspension, but because he was ready

to return to this project at a moment’s notice, BCPeabody claimed entitlement to his entire

salary in the amount of $22,741.16 during the suspension period.

Punchlists

On May 20, 2015, the VA provided a final punch list to BCPeabody with

approximately 100 items identified. BCPeabody noted that many items on the punchlist were

not valid, were completed prior to receipt of the list, or were not included in the scope of

work. BCPeabody worked to complete the items on the punch list. In August 2015,

BCPeabody identified six items on the list that were not complete but noted plans to

complete those punchlist items. In response to the VA’s assertions that the punch list was

not completed, BCPeabody stated that it “never considered not doing the list and in fact our

crew was turned away in our attempt to complete it.” At the same time, BCPeabody

indicated its availability to perform warranty work.

By letter dated February 1, 2016, the VA notified BCPeabody that it claimed a credit

of $17,501.13 for unfinished or deficient work. The VA identified the unfinished or

CBCA 5410

5

deficient work and provided copies of proposals from other contractors quoting the cost to

complete the work. The VA claimed that it had notified BCPeabody of the unfinished or

deficient work in its May 20, 2015, punchlist, but it did not specifically identify for the Board

the items that were on both the May 20 punchlist and in the February 1 letter. BCPeabody

noted that there were only three items that could be found on both lists, but it did not identify

which items and questioned the validity of all of the items listed.

Change Requests and BCPeabody’s Claim

The project was completed on May 4, 2015. BCPeabody submitted proposals for

thirteen changes with signed subcontractor quotes on or about October 19, 2015. On

January 21, 2016, the VA asserted its claim for $115,294.93 for undelivered equipment. The

parties attempted to resolve all of the claims at a meeting on February 4, 2016. The VA

approved eight of the thirteen change requests in the amount of $50,625.16 the next day.

On April 15, 2016, BCPeabody submitted its certified claim. The contracting officer

determined in his July 20, 2016, final decision that BCPeabody owed the VA $27,950.70.

BCPeabody timely appealed the final decision to the Board on July 26, 2016.

Discussion

I.

The Suspension Period

BCPeabody claims $13,282 in general conditions costs, $53,638.35 in personnel costs,

and $49,516.20 in unabsorbed overhead costs, for a total of $116,436.55 resulting from the

179-day suspension period.3 In order to recover under the Suspension of Work clause, a

contractor must show that (1) contract performance was delayed; (2) the Government directly

caused the delay; (3) the delay was for an unreasonable period of time; and (4) the delay

3

In its amended complaint, BCPeabody suggests an alternative way to calculate

damages resulting from the suspension period using a daily rate of $982 that it asserts the VA

accepted in modification P00006. Using this alternative calculation, the total suspension

damages claimed equal $175,778. BCPeabody provides no support for this daily rate, except

to calculate it by dividing the total amount awarded by the days of delay awarded

($40,262.02 ÷ 41 days) in modification P00006 and to say that the claimed amount of

$116,436.55 (daily rate of $650.48) was a compromise due to the fact that BCPeabody could

not document its costs. Without evidence regarding how the $982 daily rate was derived or

documentation to support this rate, and given that BCPeabody has provided documentation

to support its claim of $116,436.55, the Board will not use this $982 daily rate in calculating

damages.

CBCA 5410

6

injured the contractor in the form of additional expense or loss. Triax-Pacific v. Stone, 958

F.2d 351, 353 (Fed. Cir. 1992); 48 CFR 52.242-14 (2012) (FAR 52.242-14). The 179-day

suspension was solely caused by the VA. The issue is whether the suspension was for an

unreasonable period of time. “[T]he word ‘unreasonable’ which appears twice in the

‘Suspension of Work’ clause refers to the duration of the suspension and the delay in the

work caused thereby and does not refer to the Government’s motivation or purpose in

ordering the suspension.” T.C. Bateson Construction Co., ASBCA 5492, 60-2 BCA ¶ 2815,

at 14,545. We find that the VA had more than sufficient time to arrange for the December

2013 renovation of the kitchen area, since the task order was awarded in June 2012. A 179day delay due to the unavailability of the kitchen area for renovation was a protracted and

unreasonable period of time for which the contractor should not be required to shoulder the

added expense.

a. General Conditions and Personnel Costs

We find that the general conditions costs in the amount of $13,282 are substantiated.

Most of the claimed personnel costs, in the amount of $53,638.35, however, are not. The

personnel costs include the entire salary for the suspension period of both project managers

and the superintendent. We deny any entitlement to costs for the superintendent since he was

working elsewhere during the suspension. Mr. Osborne’s claim to have been working on this

project forty hours a week during the suspension period while at the same time working forty

hours a week on other BCPeabody projects lacks credibility. Instead, we accept the

contracting officer’s determination that Mr. Osborne was working on the project eight hours

a week for thirteen weeks of the suspension period, and that Mr. Goetz’s costs as project

manager were supported by the record. BCPeabody is, therefore, awarded $13,282 in general

conditions, and $13,700.54 in personnel costs ($9367.21 for Mr. Goetz’s work and $4333.33

for Mr. Osborne’s work during the suspension period).

b. Unabsorbed Home Office Overhead Costs

BCPeabody requests unabsorbed home office overhead costs in the amount of

$49,516.20 for the 179-day suspension. Suspension or delay of contract performance results

in an interruption in payment for direct costs, which in turn causes an interruption in payment

for overhead; however, overhead costs continue to accrue regardless of direct contract

activity. This interruption in the stream of payments causes a portion of home office

overhead costs to be unabsorbed. Nicon, Inc. v. United States, 331 F.3d 878, 882 (Fed. Cir.

2003); Wickham Contracting Co. v. Fischer, 12 F.3d 1574, 1577 (Fed. Cir. 1994). Eichleay

refers to the formula used to calculate the amount of unabsorbed home office overhead when

the Government indefinitely suspends or delays work. See P.J. Dick, Inc. v. Principi, 324

F.3d 1364, 1370 (Fed. Cir. 2003) (citing Melka Marine v. United States, 187 F.3d 1370, 1375

CBCA 5410

7

(Fed. Cir. 1999)); Eichleay Corp., ASBCA 5183, 60-2 BCA ¶ 2688. To receive Eichleay

damages, appellant must first establish its prima facie case that (1) there was a VA-caused

delay that did not run concurrently with any other delay, (2) the delay extended the time of

performance of the contract, and (3) appellant was required to remain on standby during the

delay. P.J. Dick, 324 F.3d at 1370.

The parties do not dispute that there was a VA-caused delay or that the VA-caused

delay extended the original time for performance by at least six months. “‘[S]tandby’

requires an uncertain delay period where the VA can require the contractor to resume

full-scale work at any time.” Melka Marine, 187 F.3d at 1376 (emphasis omitted). When

a contracting officer issues a written order that suspends work for an uncertain duration and

requires the contractor to remain ready to work immediately or with short notice, the

contractor proves its prima facie case. P.J. Dick, 324 F.3d at 1370.

Here, the VA suspension was not for an uncertain duration. From the VA’s

suspension letters, BCPeabody knew that the earliest it would be asked to resume work

would be the date identified in each of the suspension letters as the end of the suspension.

When a contractor knows with certainty that it cannot be called on to perform work before

a certain date, there is no uncertain delay period and the contractor is not on standby. P.J.

Dick, 324 F.3d at 1371 (citing Melka Marine, 187 F.3d at 1376). Thus, BCPeabody did not

establish that it was on standby.

BCPeabody also fails to prove that it was required to be ready to resume work

immediately. See P.J. Dick, 324 F.3d at 1371. “The contractor must be required to keep at

least some of its workers and necessary equipment at the site” to establish this part of the

standby requirement. Id. BCPeabody provided no evidence that it was required to be ready

to work immediately after the suspension lifted without reasonable time to remobilize, id.

(citing Mech-Con Corp. v. West, 61 F.3d 883, 887 (Fed. Cir. 1995)), or without gradually

increasing the workforce. See id. (citing Melka Marine, 187 F.3d at 1375). In fact,

BCPeabody ultimately had one month to remobilize. Since BCPeabody did not prove that

it was required to be ready to resume work immediately, it did not prove that it was on

standby. BCPeabody failed to establish a prima facie case for Eichleay damages, and,

therefore, we need not address whether it was impractical for BCPeabody to obtain sufficient

replacement work. See id. (citing Melka Marine, 187 F.3d at 1376).

II.

Approved Change Orders

The VA does not dispute that it owes BCPeabody $50,625.16 of the $54,016.46

BCPeabody claims for approved change orders. The only item in dispute before the Board

is BCPeabody’s claim for the cost of an additional floor drain in the amount of $3391.30.

CBCA 5410

8

BCPeabody asserts that the superintendent and the contracting officer agreed that the VA

would pay for two additional floor drains. No such agreement, however, was memorialized

in any document found in the record. Instead, BCPeabody’s subcontractor revised its quote

at the VA’s request to include only one additional floor drain. Thus, we find that BCPeabody

is not entitled to the cost of the additional floor drain but is entitled to $50,625.16 for

approved change orders.

III.

Disapproved Change Orders

BCPeabody asserts entitlement to $19,847.804 for five change orders denied by the

VA.

a. Run Temporary Tube System

BCPeabody discovered that the pneumatic tube system for the dispensary connected

to an existing electrical circuit in the kitchen. BCPeabody characterized the fact that an

outside system (the dispensary tube system) was running off of the kitchen electrical panel

as an unforeseen and unusual differing site condition. To avoid delaying electrical work in

the kitchen area and avoid disrupting electrical service to the tube system, BCPeabody

created a temporary electrical connection for the tube system at a cost of $1650. The VA

argues that this work was within the scope of the task order and/or incidental to the project,

and in a firm-fixed-price task order, such changes should be borne by the contractor. In

addition, the VA argued that the contractor failed to give timely, written notice of a differing

site condition.

The task order required that BCPeabody maintain the existing electrical connections

for the medical center at all times to ensure uninterrupted service.

Utilities Services: Maintain existing utility services for Medical Center at all

times. Provide temporary facilities, labor, materials, equipment, connections,

and utilities to assure [sic] uninterrupted services.

....

No utility service such as water, gas, steam, sewers or electricity, or fire

protection systems and communications systems may be interrupted without

prior approval of Contracting Officers [sic] Representative (COR).

4

This number changed from the $17,357.45 originally claimed because BCPeabody

increased by $2490.35 the amount claimed for the flooring upgrade.

CBCA 5410

9

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

assumes the risk of unexpected costs.” Lakeshore Engineering Services, Inc. v. United

States, 748 F.3d 1341, 1347 (Fed. Cir. 2014); Southwestern Security Services, Inc. v.

Department of Homeland Security, CBCA 1264, 09-2 BCA ¶ 34,139, at 168,777 (citing Gulf

Shores, LLC v. Department of Homeland Security, CBCA 802, 09-1 BCA ¶ 34,024 (2008)).

The fact that maintaining the existing utility service was more costly than expected because

BCPeabody had to reroute the electrical for the tube system to prevent any interruption in

patient services does not entitle the contractor to compensation beyond that provided for in

the task order. Lakeshore Engineering Services, 748 F.3d at 1347; Southwestern Security

Services, 09-2 BCA at 168,777 (citing Gulf Shores).

For a Type II differing site condition, it is necessary to prove that the condition was

unknown and of “an unusual nature, which differed materially from those ordinarily

encountered and generally recognized as inhering in work of the character provided for in

the contract.” FAR 52.236-2. In order to qualify as a Type II differing site condition, “the

unknown physical condition must be one that could not be reasonably anticipated by the

contractor from his study of the contract documents, his inspection of the site, and his general

experience[,] if any, as a contractor in the area.” Randa/Madison Joint Venture III v.

Dahlberg, 239 F.3d 1264, 1276 (Fed. Cir. 2001) (quoting Perini Corp. v. United States, 381

F.2d 403, 410 (Ct. Cl. 1967)); Project Solutions Group v. Department of Transportation,

CBCA 3411, 13 BCA ¶ 35,437, at 173,813. Thus, BCPeabody bears the burden of

establishing that it encountered an unknown and unusual physical condition when it

discovered the electrical connection.

There is no evidence, other than a conclusory statement by BCPeabody, that the

electrical connection was unusual, or could not have been reasonably anticipated by the

contractor from its study of the task order documents, inspection of the site, or general

experience. Moreover, under FAR 52.236-2(a), the contractor “shall promptly, and before

the conditions are disturbed, give a written notice to the Contacting Officer” if there are

differing site conditions. There is no dispute that BCPeabody did not give timely written

notice. It is not clear, however, that BCPeabody gave notice of any kind to the contracting

officer of this alleged differing site condition until 283 days after it created the temporary

electrical connection for the tube system. “If a contract clause requires a contractor to notify

the Government within a specified period of time of a differing site condition, lack of such

notice does not automatically bar the contractor’s recovery unless the Government can

establish that it was prejudiced by the lack of notice.” Ahtna Environmental, Inc. v.

Department of Transportation, CBCA 5456, 17-1 BCA ¶ 36,600, at 178,304 (citing

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

Construction Co., DOT CAB 1075, 80-2 BCA ¶ 14,630, at 72,156-157; and DeMauro

Construction Corp., ASBCA 17029, 77-1 BCA ¶ 12,511, at 60,650). Failure to give notice

CBCA 5410

10

of a differing site condition before the condition is disturbed or additional costs are incurred

can prejudice the Government. Grunley Construction Co. v. General Services

Administration, CBCA 4539, 16-1 BCA ¶ 36,536, at 177,992 (quoting David Boland, Inc.,

ASBCA 48715, et al., 97-2 BCA ¶ 29,166, at 145,025) (“When a contractor fails to furnish

information to the Government that will allow the Government an opportunity to relax the

contract requirements before proceeding to incur extra costs, the contractor’s claim will

fail.”). We find that BCPeabody failed to give notice, oral or written, to the contracting

officer before the condition was disturbed and additional costs were incurred, thus

prejudicing the VA. BCPeabody did not meet its burden to prove that there was a differing

site condition, and the claim for $1650 is denied.

b. New Steam Piping and Return for Dishwasher

BCPeabody claims $3080 for replacing steam lines to make the dishwasher function.

The task order stated:

All utilities including but not limited to fire suppression and fire alarm

systems, plumbing, electrical, air conditioning and exhaust will be brought up

to current code requirements and VA specifications under this project. Any

item found to be deficient, such as less than required floor slope to drains, wall

framing being rusted, etc. will be corrected under this project.

By the plain language of the task order, a corroded steam pipe that had to be replaced for the

dishwasher to properly function was in the scope of work of the task order and did not

constitute a change. 1201 Eye Street, N.W. Associates, LLC v. General Services

Administration, CBCA 5150, 17-1 BCA ¶ 36,592, at 178,223 (“Contract interpretation begins

with the plain language of the agreement” (citing Gould, Inc. v. United States, 935 F.2d

1271, 1274 (Fed. Cir. 1991)). Thus, BCPeabody is not entitled to an equitable adjustment

in the amount of $3080.

c. Frame Above Roll-Up Door

BCPeabody claims the cost of $550 to replace a stud frame that had rotted above a

door. The scope of work, however, identified rusted wall framing and similar items as

deficient and requiring correction under the task order. Thus, we find that a rotting stud

frame was not a differing site condition, but a cost to be incurred by the contractor under the

task order.

CBCA 5410

11

d. Flooring Upgrade

BCPeabody claims $13,0195 for upgraded vinyl flooring selected by the VA. The

contracting officer agreed that this was a change in the flooring required by the task order.

The contracting officer, however, denied BCPeabody’s claim on the grounds that it did not

meet its burden to prove the cost of the change. BCPeabody admits that it does not have the

documentation to support the cost originally quoted for the tile.

With regard to BCPeabody’s burden of proof, this Board has stated:

The ascertainment of damages, or of an equitable adjustment, is not an exact

science, and where responsibility for damages is clear, it is not essential that

the amount thereof be ascertainable with absolute exactness or mathematical

precision: “It is enough if the evidence adduced is sufficient to enable a court

or jury to make a fair and reasonable approximation.” Specialty Assembling

& Packing Co. v. United States, 355 F.2d 554, 572, 174 Ct. Cl. 153, 184

(1966); WRB Corp. v. United States, 183 Ct. Cl. 409, 425 (1968). . . .

As the court stated in Dawco Construction Inc. v. United States, 18 Cl. Ct.

682, 698 (1989), aff'd in part, 930 F.2d 872 (Fed. Cir. 1991), “All that is

necessary is a reasonable showing of the extra costs. Defendant cannot be

permitted to benefit from its wrong to escape liability under the guise of a lack

of a perfect measure. See generally Dale Construction Co. v. United States,

161 Ct. Cl. 825 (1963).” In Dawco, the court had decided quantum on the

basis of a jury verdict, a less-favored approach than total cost. The court stated

that it was appropriate to apply a jury verdict approach where it was not

possible for the plaintiff to prove its actual damages, but sufficient information

existed for the court to arrive at a fair approximation. Similar cases are

Propellex Corp. v. Brownlee, 342 F.3d 1335 (Fed. Cir. 2003), and Boyajian v.

United States, 423 F.2d 1231 (Ct. Cl. 1970).

Choctaw Transportation Co. v. Department of Agriculture, CBCA 2482, et al., 16-1 BCA

¶ 36,579, at 178,168 (quoting Moshe Safdie & Associates, Inc. v. General Services

Administration, CBCA 1849, et al., 14-1 BCA ¶ 35,564, at 174,300). We will use the jury

verdict approach to arrive at a fair approximation of the damages.

5

BCPeabody increased its claim for a flooring upgrade from $10,528.65, after

obtaining documentary support.

CBCA 5410

12

BCPeabody provided a more current quote for the high-end cost of hospital grade tile

($3.50 per square foot) from a different supplier and used that number to calculate the

difference in the original cost of the tile and the actual cost of the vinyl flooring ($7.90 per

square foot). The difference in cost for an area of 2690 square feet equaled $11,836, plus ten

percent overhead and profit, for a total amount of $13,019. This amount is a fair

approximation of the damages.

e. Moved Chilled Water Lines

Retherm units added in the second kitchen required BCPeabody to move chilled water

lines. The cost for the additional plumbing was $1548.80. The task order required the

“[r]emoval and relocation of utilities to meet work flow corrections and equipment needs.”

We agree that the relocation of the chilled water lines to meet equipment needs was included

in the task order scope and not a change.

IV.

Architectural and Engineering Design Services

BCPeabody claims $68,904 in increased A/E costs incurred as a result of the VA’s

design changes. The VA asserts that the design changes were reasonable and within the

scope of the task order. The VA argues that “design pricing is expected to take into account

reasonable alterations and adjustments, all of which are inherent to the” design process,

quoting Planned Environmental Design Corp., ASBCA 47599, et al., 96-1 BCA ¶ 28,001

(1995).

“[I]t is in the nature of an A-E design contract that the Government will decide what

desired aspects of the project will change or be deleted due to budget constraints when

appellant’s design and cost estimates are received. Mere changes in the original parameters

for the design of a project do not necessarily constitute compensable changes. A certain

amount of ‘give and take between the parties’ is expected in A-E design contracts.” “[A]

design contract, like any contract, has limits and includes provisions which define scope and

set out requirements which are not expected to change. Although aspects of scope are

subject to being adjusted without triggering added compensation, neither the Government nor

the A/E is entitled to make unlimited adjustments without expecting that some of them could

result in a change in design costs.” Moshe Safdie, 14-1 BCA at 174,296; Planned

Environmental Design Corp., 96-1 BCA at 139,848 (citing Bryant & Bryant, ASBCA 27910,

88-3 BCA ¶ 20,923, at 105,746 (citing McLean & Schultz, ASBCA 30552, 85-3 BCA ¶

18,265, at 91,693)). We must consider “the timing of such a [design] change and the level

of effort required of the designer [in order to] determine the extent, if any, to which the A/E

may be entitled to an equitable adjustment.” Taylor & Partners, Inc., VABCA 4898, 97-1

BCA ¶ 28,970, at 144,267 (quoting Fanning, Phillips & Molnar, VABCA 3856, 96-1 BCA

CBCA 5410

13

¶ 28,214, at 140,833-834, modified on reconsideration, VABCA 3856R, 96-2 BCA ¶

28,427).

Significant changes to the equipment BCPeabody expected to use on the project and

inaccuracies in the VA’s as-built HVAC plans, both identified late in the design process,

caused BCPeabody to rework the design in a significant way. The timing and extent of these

design changes entitle BCPeabody to an equitable adjustment in the amount of $32,000 for

additional A/E services. BCPeabody is also entitled to ten percent for overhead and profit

for the first $20,000 awarded and seven-and-one-half percent for overhead and profit for the

next $30,000 awarded, for a total of $2900 for overhead and profit. 48 CFR 852.23688(b)(5) (2008) (VAAR 852.236-88(b)(5)). The total amount awarded is $34,900.

The incorporation of a hood for cooking with grease, however, was not a change. The

task order required a hood for cooking with grease. Even if BCPeabody was told otherwise

during the design process, the cost of designing the hood for cooking with grease should have

been included in BCPeabody’s bid. BCPeabody is not entitled to the cost of this additional

A/E work in the amount of $28,000.

There has been no evidence presented to support BCPeabody’s claim that Erik Stor

and Adam Goetz each worked forty additional hours as a result of the design changes. We

find that BCPeabody is not entitled to the $2640 claimed for their time.

V.

Undelivered Equipment Credit

The VA claims entitlement to $115,294.93 – the difference in cost between the

equipment listed in the task order as “probable at a minimum” and the actual equipment

provided for the project by BCPeabody. This, however, was a firm-fixed-price design-build

task order.

Firm-fixed-price contracts “assign the risk to the contractor that the actual cost of

performance will be higher than the price of the contract.” Dalton v. Cessna Aircraft Co.,

98 F.3d 1298, 1305 (Fed. Cir. 1996). The VA took the risk that the actual cost of the

equipment purchased was less. If BCPeabody completed the work using different equipment

than anticipated in its bid, it is entitled to the benefit of its bargain. The price of a

firm-fixed-price contract does not vary with the cost experience of the contractor. FAR

16.202-1 (“A firm-fixed-price contract provides for a price that is not subject to any

adjustment on the basis of the contractor’s cost experience in performing the contract. This

contract type places upon the contractor maximum risk and full responsibility for all costs

and resulting profit or loss.”). Thus, the contractor is entitled to keep the cost savings if it

performed for less than the bid price; conversely, it must absorb the loss if it exceeded the

CBCA 5410

14

bid price. Dalton, 98 F.3d at 1303-04. The VA is not entitled to a credit for unused

equipment.

VI.

Deficient Work Credit

The VA claimed reimbursement of costs incurred to complete unfinished or deficient

work. The VA bears the burden of proof for its claim for costs incurred to complete

unfinished or deficient work, and must show that “the work [initially] performed by the

[contractor] failed to meet the contract specifications.” Mitchell Enterprises, Inc., ASBCA

53202, et al., 06-1 BCA ¶ 33,277, at 164,962 (citing Cochran Construction Co., ASBCA

40,294, 90-3 BCA ¶ 23,239, at 116,609). “The fact that the Government included items on

a punch list does not a fortiori establish the existence or extent of the alleged defects.” Id.

(citing Techno Engineering & Construction, Ltd., ASBCA 32938, 88-1 BCA ¶ 20,351, at

102,921). “Moreover, appellant cannot be held responsible for punch list items first noted

after the government takes possession, unless it is shown that the damage was in fact caused

by appellant.” Id. (citing Cocoa Electric Co., ASBCA 33921, 91-1 BCA ¶ 23,442, at

177,591). The VA has failed to meet its burden. The VA has not proven that the work

identified as unfinished or deficient failed to meet the task order specifications, was deficient

prior to occupancy of the building by the VA, or was even in the scope of work.

Even if such unfinished or deficient work were the fault of BCPeabody, BCPeabody

was not given the opportunity to correct the work. The VA must establish that it “offered the

contractor the opportunity to correct the defect and that the contractor failed or refused to

correct the defect.” Mitchell Enterprises, 06-1 BCA at 164,962. “Absent proof that the

appellant would have refused to make corrections, or been unable to do so within a

reasonable time, the Government is not entitled to charge appellant with its own costs for

correcting deficiencies.” Id. (quoting Techni Data Laboratories, ASBCA 21054, 77-2 BCA

¶ 12,667, at 61,411). The record indicates that BCPeabody did not refuse to make

corrections. Some of the items claimed had not been previously identified, and those that

were, BCPeabody intended to complete, but its crew was turned away. Thus, this claim is

denied.

VII.

Breach of Good Faith and Fair Dealing

“The covenant of good faith and fair dealing . . . imposes obligations on both

contracting parties that include the duty not to interfere with the other party’s performance

and not to act so as to destroy the reasonable expectations of the other party regarding the

fruits of the contract.” Metcalf Construction Co. v. United States, 742 F.3d 984, 991 (Fed.

Cir. 2014 (quoting Centex Corp. v. United States, 395 F.3d 1283, 1304 (Fed. Cir. 2005)).

BCPeabody asserts that the VA’s administration of the task order adversely affected

CBCA 5410

15

BCPeabody’s financial situation, ability to negotiate with the VA, and relationship with its

suppliers and subcontractors. Specifically, BCPeabody points to six actions by the VA that

it argues “made manifest” the VA’s breach of the duty of good faith and fair dealing and had

the adverse effects alleged: (1) the VA’s refusal to pay for additional costs of the design,

(2) the VA’s refusal to acknowledge that it placed appellant on standby for the entirety of

the suspension period, (3) the VA’s failure to give appellant adequate notice and a fair

opportunity to correct defective and incomplete work before reprocuring, (4) the VA’s

decision to bill appellant for equipment not received, (5) the VA’s refusal to pay for

approved change orders, and (6) the VA’s refusal to waive the written notification

requirement for a differing site condition. Maintaining BCPeabody’s financial situation,

negotiation position with the VA, or relationship with its subcontractors were not

“reasonable expectations created by the autonomous expressions of the contracting parties.”

Tranben, Ltd. v. Department of Transportation, CBCA 5448, 17-1 BCA ¶ 36,635, at

178,430 (quoting Metcalf, 742 F.3d at 991). “A party to a contract cannot use an implied

duty of good faith and fair dealing to expand another party’s contractual duties beyond those

in the express contract or create duties inconsistent with the contract’s provisions.” Agility

Public Warehousing Co. KSCP v. Mattis, 852 F.3d 1370, 1384 (Fed. Cir. 2017) (quoting

Metcalf, 742 F.3d at 991). Moreover, beyond a mere assertion in its complaint, BCPeabody

failed to prove that the VA’s actions had the adverse effects alleged.

Even assuming that such adverse effects resulted from the VA’s actions, the effects

were not the result of the VA’s task order administration during performance. The VA

actions identified, instead, occurred after substantial completion and involved the assertion

and litigation of claims by both parties. Nonetheless, “[t]he obligation of good faith and fair

dealing extends to the assertion, settlement and litigation of contract claims and defenses.”

Restatement (Second) of Contracts § 205 cmt. e (1981). The VA, however, did not breach

this obligation. The VA acted timely to resolve BCPeabody’s change orders by meeting to

negotiate and issuing its decisions on each claim shortly thereafter. The VA also had a

reasonable basis to assert its claims and to offset the amounts owed for approved change

orders by the amounts the VA claimed it was owed. When we consider the totality of the

actions of the parties, we do not find the overall conduct of the VA rose to the level of clear

and convincing evidence of the breach of the duty of good faith and fair dealing.

Decision

For the foregoing reasons, the Board GRANTS IN PART the appeal. BCPeabody

is awarded $125,526.70, which includes $13,700.54 for personnel costs, $13,282 for general

conditions costs, $34,900 for additional A/E design services, and $63,644.16 for extra and

changed work. The VA did not breach the duty of good faith and fair dealing and is not

CBCA 5410

16

entitled to costs for its claims for an unused equipment credit or reprocurement costs.

____________________

ERICA S. BEARDSLEY

Board Judge

We concur:

______________________

ALLAN H. GOODMAN

Board Judge

_____________________

BEVERLY M. RUSSELL

Board Judge