# MOTIONS FOR SUMMARY RELIEF AND

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## Record

- **Collection:** Agency decision
- **Document type:** Agency decision

## Text

MOTIONS FOR SUMMARY RELIEF AND
PARTIAL SUMMARY RELIEF DENIED: May 9, 2007

CBCA 439

ACQUEST GOVERNMENT HOLDINGS U.S. GEOLOGICAL, LLC,
Appellant,
v.
GENERAL SERVICES ADMINISTRATION,
Respondent.
Michael J. Norton and Lindsey N. Rothrock of Burns Figa & Will P.C., Greenwood
Village, CO, counsel for Appellant.
M. Leah Wright, Office of General Counsel, General Services Administration,
Auburn, WA, counsel for Respondent.
Before Board Judges PARKER, GILMORE, and GOODMAN.
GILMORE, Board Judge.

This appeal involves a dispute between Acquest Government Holdings U.S.
Geological, LLC (Acquest or appellant) and the General Services Administration (GSA or
respondent), under a lease agreement which required appellant to construct a facility and
lease it to respondent for a period of twenty years. The dispute centers around the
construction of the facility’s animal holding rooms. Appellant claims that (1) under the
design specified in the solicitation for the animal holding rooms, it was impossible to meet
the performance requirements for heating and ventilation of the rooms; (2) it was required

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to perform additional work and install additional equipment in an attempt to meet the
performance requirements and subsequent design changes made by respondent; and
(3) respondent owes the rent that it withheld while the additional work was being performed,
and operating expenses during that period. Appellant’s claim is in the approximate amount
of $936,000. Appellant initially claimed that GSA also owed it additional costs under the
Prompt Payment Act, but has since withdrawn this claim.
Respondent answered that the design features in the solicitation and drawings were
developed only to the 30% level, and that appellant was ultimately responsible for designing
the facility to the 100% level; and that GSA is not liable for any extra costs appellant
expended to bring the facility into compliance with the performance requirements.
Respondent argues that its reduction of the rental amount was justified because GSA was
unable to occupy the holding rooms while corrective work was being performed.
The parties have filed cross-motions for summary relief. Respondent has moved for
partial summary relief alleging that the material facts are undisputed and that it is entitled
to judgment as a matter of law on the issues of whether GSA warranted the initial design
for the animal holding rooms and whether the specifications were defective. It contends that
the undisputed facts establish that GSA, in its solicitation for offers, set forth specifications
to a 30% design level, representing only a “design intent,” and that appellant was
responsible for designing the building, including the animal holding rooms, to the 100%
design level to meet the performance requirements.
Appellant asks the Board to deny respondent’s motion for partial summary relief and
to enter judgment in its favor, contending that the material facts are undisputed and show
that (1) GSA specified design features for the animal holding rooms with which appellant
had to comply; (2) appellant complied with the design specified and was unable to achieve
the performance requirements; and (3) GSA subsequently changed the design requirements
in order to achieve the performance requirements, which required appellant to upgrade the
originally installed equipment.
For the reasons below, we find that there are material facts in dispute and deny both
respondent’s motion for partial summary relief and appellant’s motion for summary relief.
Undisputed Facts
Based upon the pleadings and documents in the appeal file and submitted in the
parties’ cross-motions for summary relief, the following facts appear to be undisputed.

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3

1.
On or about November 1, 2000, the Government issued Solicitation for Offers
(SFO) no. 001-03 for the construction and lease of office and related space in the Natural
Resources Research Park in Fort Collins, Colorado. Appeal File, Vol. 2-1, Exhibit 15 at 11.
On December 6, 2000, the Government issued its first amendment to the SFO, which
incorporated the design drawings. Appeal File, Vol. 1, Exhibit 3. Offers were due on
February 12, 2001.
2.
On February 27, 2001, GSA awarded a twenty-year lease to appellant for
99,150 square feet of office space and 103 parking spaces at the research park at an annual
rent of $2,468,835, which included the cost of tenant improvements of $3,999,771 amortized
over the term of the lease. The lease agreement incorporated the SFO and its amendments.
The lease was to provide office space and laboratory and industrial space in a newly
constructed building able to meet the requirements set forth in the lease. The office and
laboratory space included ten animal holding rooms, containing approximately 3979 square
feet, which required special temperature, humidity, and air velocity control measures. The
parties’ dispute involves appellant’s construction of the animal holding rooms. Appeal File,
Vol. 2-1, Exhibit 15.
3.
The space was to be provided in a phased occupancy with the biological
laboratories and animal facilities not requiring completion until July 1, 2002.
Commissioning and testing of the laboratory systems could be completed post-occupancy and
were required to be operational no later than August 1, 2002. Appeal File, Vol. 2-1,
Exhibit 15 at 241.
4.

Section 2.3 of the SFO, Preliminary Design Concept, states:

All offers shall meet the requirements of this SFO and the associated
schematic design drawings. Any proposed variances must be submitted with
a specific description in writing with the offer. If the Government receives no
variances, then the offer will be considered to meet all the requirements of the
SFO and associated schematic.
Appeal File, Vol. 2-1, Exhibit 15 at 16.
5.

Section 11.1 of the SFO, Drawings, states:

Drawings will be provided as part of the second phase of the solicitation. The
drawings to be provided are design intent only. The drawings represent the
programming, space planning, architectural and important engineering aspects
of the building. Preparation of complete bid and construction documents is the

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responsibility of the successful offeror. The drawings provided do not
represent full engineering analysis or code compliance. It will be the
responsibility of the successful offeror to provide complete engineering
analysis and code compliance.
Appeal File, Vol. 2-1, Exhibit 15 at 205.
6.
The mechanical, electrical, and plumbing portions of the drawings contain the
following language in the bottom corner:
This drawing, with equipment and system component locations, types, and
sizing is meant only to indicate design intent and approximate scope of work,
the offerers [sic] engineers shall be responsible for the final scope definition
and design, as well as final equipment selection, sizing, and performance.
Note: These drawings are supplemental to the SFO and are not intended to be
used separately. Drawings are for design intent only and are not to be used for
construction.
Appeal File, Exhibit 56.
7.
The architectural portion of the drawings does not contain the above language.
The architectural portion of the drawings, on the page titled “Lower Level--East Wing,”
depicts the architectural design for the animal holding rooms with an attached note directed
at wall construction. The legend to that attached note stated: “Concrete masonry unit to
structure with furring and gyp. on finish side to ceiling. No gyp. or furring necessary @
animal ecology lab.” Appeal File, Exhibit 56.
8.
Part Two of the SFO, Section 4, addresses buildout and construction. Section
4.1, Design Concepts Development, provides in pertinent part:
After award, design development will be in accordance with the specific
solicitation requirements. The Contracting Officer shall have the right to reject
any aspect of subsequent design development which varies from the concept
and which would adversely affect the government’s use and occupancy of the
space or the Government’s other interests in the building. Evolutionary
adaptations or changes can be proposed by either party to improve the design,
subject to the Contracting Officer’s approval.
....

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Design development after award will not only be in accordance with the
specific solicitation requirements, but also a direct extension of the original
design concept. The further design development shall retain all the
fundamental and physical characteristics of that concept. Neither party will
unreasonably withhold such acceptance of demonstrably beneficial design
adaptations of the concept which would not measurably increase the costs of
construction, operation or occupancy of the space or building and which would
not decrease the utility of the space or building to either party.
Appeal File, Vol. 2-1, Exhibit 15 at 20.
Section 4.1 further requires that the lessor submit 50%, 90%, and 100% design
drawings for government review. The lessor was to submit drawings coordinated with the
mechanical, electrical, and space drawings, and the 50% design submission was required to
include calculations for structural analysis and for mechanical, plumbing, and electrical
systems to justify sizes of the proposed systems. The intent at the 50% design stage was to
“progress the original design drawing information through design development process to
the point where only construction details remain to be completed: i.e., complete intended
design of the facility shall be shown.” The 90% design stage required appellant to submit
a complete set of construction documents, and the 100% design stage required appellant to
submit the final design documents. Appeal File, Vol. 2-1, Exhibit 15 at 20-21.
9.
Section 4.5, Construction Inspections, provides that construction inspections
will be made periodically by the contracting officer and/or a designated technical
representative to review compliance with the solicitation requirements. It further provides,
“The lessor will remain responsible for designing, constructing, operating and maintaining
the building in full accordance with the requirements of this solicitation.” Appeal File, Vol.
2-1, Exhibit 15 at 21.
10.
Section 4.8, Construction Documentation After Award, provides that upon
request of the contracting officer, the following documentation must be provided:
E.

Heating and cooling peak load calculations.

F.
HVAC [heating, ventilation, and air conditioning] plans and equipment
specifications----HVAC duct layouts, specific HVAC zones and HVAC zone
controls. All dampers including fire dampers and volume control dampers
must be shown with ductwork ahead of the distribution terminal indicated in
true size; automotive control diagrams showing sequence of operation of

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6

equipment; plans showing plumbing layouts and fixtures; riser diagrams for
waste and vent lines; layout of equipment rooms showing all mechanical
equipment; mechanical details; and complete equipment schedules. All HVAC
calculations shall be provided to show [how] equipment to be installed can
meet the specifications for the building.
....
O.
Before the final inspection process, the Lessor must provide evidence
of the “bake-out” period, the building permit, and inspection sign-off, final
HVAC testing and balancing reports, and occupancy permits. Rent shall
commence when the space is accepted by the Government and a valid
occupancy permits [sic] is received by the Government.
Appeal File, Vol. 2-1, Exhibit 15 at 22.
11.
Section 15010, Basic Mechanical Requirements, Paragraph 1(A)(2)(b),
required that animal labs have a temperature controllable between 7oC and 44oC with
humidity controllable between 20% and 90% relative humidity. Appeal File, Vol. 2-1,
Exhibit 15 at 154.
12.
Section 15010, Basic Mechanical Requirements, Paragraph (1)(F), provides
in pertinent part:
The Central Station Air Handling Unit for the Animal Ecology Laboratory
shall provide the conditions of temperature and relative humidity in the animal
holding rooms necessary to support the various research projects. The quantity
of air supplied and exhausted shall be adjustable from five to twenty five air
changes per hour, animal holding room temperature shall be adjustable from
7oC (44.6oF) to 44oC (111.2oF), and room relative humidity shall be
adjustable from 5% to 90%. The unit shall be capable of conditioning the total
required air from tempered outdoor conditions to the coldest, driest air
condition required by any of the rooms. The cold, dry air is ducted separately
to the spaces and the selected amount metered to the rooms by constant
volume, variable set point terminal units. At each room, the air is then
reheated and re-humidified to the required temperature and humidity.
Constant volume, variable set point terminal units shall be used on the exhaust
from each room to maintain a negative pressure relationship with the corridor
outside of the rooms. Motors with VFDs [variable frequency drives] shall

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drive both the supply fan on the Central Station Air Handling Unit and the
exhaust fan on the roof.1
Appeal File, Vol. 2-1, Exhibit 15 at 155.
13.
Before the best and final offers (BAFO) were submitted, appellant asked
respondent for clarification regarding the humidifying units in the animal labs. To respond
to appellant, the contracting officer consulted another government employee as follows: “Re:
Humidifying units in the labs. Drawings call for 10 units. They are spec’d for rooms 2-4
times larger than the labs. Could smaller units be utilized, as it would save $75,000­
$100,000? Please advise. . . . Need these answers ASAP. BAFO offers are do [sic] on
Monday.” The employee responded to the contracting officer as follows: “The labs require
a tremendous amount of flexibility in the humidity control. One way to achieve this is to
oversize the units. Have Acquest bid the humidity control in accordance with the
documents.” Appellant’s Cross-Motion for Summary Relief, Exhibit A.
14.

Section 01000 of the SFO, Technical Specifications, provides:

The requirements indicated herein are to be interpreted as minimum quality
standards to be followed. It is the responsibility of the Offeror to ensure that
the products and systems provided meet the requirements of the Project and
that the systems will provide the intended function. The following technical
specification is not intended to be a complete specification for the Project, but
is included to identify specific areas where the Government has specific
requirements. No omission of the information from this technical specification
is to imply such a system or part of a system or its installation is not required
under the terms of the Contract.
Appeal File, Vol. 2-1, Exhibit 15 at 35.
15.
Amendment no. 2 to the solicitation was issued on December 29, 2000, and
incorporated into the lease agreement. Question no. 56 of the amendment stated: “In general,
do the minimum requirements of the SFO take precedence over the Schematic Drawings?

1

In amendment no. 2 to the SFO, the relative humidity required in this section
was changed from the originally specified “5% to 90%” to “20% to 90%,” to be consistent
with paragraph 1(A)(2)(b) of that same section. See Undisputed Fact 11.

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8

Please advise.” The answer was, “The most stringent takes precedence.” Appeal File, Vol.
2-1, Exhibit 15 at 249.
16.
Section 1.5 of the SFO, Fees, required the successful offeror to pay $224,359
to respondent as a “Design Cost Reimbursement Fee.” Appeal File, Vol. 2-1, Exhibit 15 at
13. Appellant paid the fee by check dated November 9, 2001. Appellant’s Cross-Motion for
Summary Relief, Exhibit B.
17.
The SFO included “Execution” paragraphs on every major system and
subsystem of the building. The sections related to the animal holding rooms contained
“Execution” provisions providing the method to be used to execute the design requirements.
For example, Section 15010, Basic Mechanical Requirements, under Paragraph 1(A), sets
forth, among other items, requirements for animal lab indoor minimum and maximum
temperatures and humidity, design noise criteria, outside air ventilation, internal heat
generation allowances for air conditioning load calculations, and the room ventilation rate
per square foot. Item 9 in that paragraph states: “No provisions for addition or reduction of
humidity are necessary, except in the animal ecology area and as noted on drawings.”
Paragraph 1(E)(3) states that the “[a]nimal holding laboratory ceiling exhaust grilles shall
have “bag-out” filter housings to include standard 35% air filters.” Appeal File, Vol. 2-1,
Exhibit 15 at 154-55.
18.
Through Supplemental Lease Agreement no. 6, dated July 22, 2002, the parties
established July 1, 2002, as the date of occupancy and set forth the rental schedule. Appeal
File, Vol. 2-2, Exhibit 21.
19.
As late as December 2002, the GSA contracting officer advised appellant that,
to the best of her knowledge, there were no defaults on the part of the lessor under the lease.
Appeal File, Vol. 7, Exhibit 57, Tab 12.
20.
In February 2003, GSA determined that the heating and ventilation systems in
the animal holding rooms did not meet the performance requirements of the lease. Appeal
File, Vol. 7, Exhibit 57, Tab 16. The problem was that adjacent animal holding rooms could
not maintain opposite extreme temperatures at the same time.
21.
Under Supplemental Lease Agreement no. 9, dated March 10, 2003, it was
agreed that GSA, beginning on March 1, 2003, would deduct, from the monthly rent, the
amount payable for the 3979 square feet of laboratory space (the animal holding rooms)
because the space was “unuseable.” The agreement stated that “[t]he square footage would
be adjusted upward and added back to the total rent payable upon Lessor’s completion of the

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Heating, Ventilation and Air Conditioning (HVAC) systems for the Wildlife Laboratories.”
Both parties signed the agreement. Appeal File, Vol. 2-2, Exhibit 24.
22.
To correct the problem, appellant proposed that insulation be installed. This
was rejected by GSA, stating that it would reduce needed floor space. Appeal File, Vol. 7,
Exhibit 57, Tab 29. The parties brainstormed on how to resolve the problem. Appellant
eventually had to install additional HVAC equipment in order to correct the problem.
23.
In November 2004, appellant hired the Farnsworth Group to test the
mechanical equipment in the animal holding rooms to determine whether the requirements
of the SFO were met. The final report states that the original equipment met the equipment
requirements of the SFO, but the installed equipment did not meet the performance
requirements of the SFO. For the report, Farnsworth reviewed the “SFO requirements
(verbiage and 30% design documents) and the record drawings (100% construction
documents).” The report further noted: “ To meet the performance requirements, additional
HVAC equipment was installed. With the installation of new equipment, the performance
does meet the requirements of the SFO.” Appeal File, Vol. 9, Exhibit 65 at 5.
24.
Appellant filed a claim with the contracting officer on October 14, 2005, in the
amount of $914,093.96, for the rental amount deducted by respondent, the cost of corrective
work, and consultant costs. It appears that respondent was still deducting the square footage
of the animal holding rooms from the rent at the time the claim was filed. Appeal File, Vol.
6, Exhibit 48.
Discussion
Summary relief is appropriate where there is no genuine issue of material fact and the
moving party is entitled to judgment as a matter of law. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 247 (1986). “Only disputes over facts that might affect the outcome of the case
under governing law will properly preclude the entry of summary judgment.” Id. at 248. The
moving party has the initial burden of informing the court of the basis for its motion and
identifying those portions of the pleadings, depositions, affidavits, admissions, and answers
to interrogatories, if any, which it believes demonstrate the absence of a genuine issue of
material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The non-moving party is
required to point to “specific facts showing that there is a genuine issue for trial.” Id. at 324
(quoting Fed. R. Civ. P. 56(e)). In considering summary relief, the court will not make
credibility determinations or weigh conflicting evidence. Anderson, 477 U.S. at 249. “All
reasonable inferences and presumptions are resolved in favor of the non-moving party.” Id.
at 255.

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The mere fact that both parties have filed motions for summary relief does not warrant
the granting of summary relief unless one of the moving parties proves that it is entitled to
judgment as a matter of law upon facts that are not genuinely disputed. We must review the
evidence submitted in support of each cross-motion and consider each party’s motion on its
own merits, taking care in each instance to examine the evidence in the light most favorable
to the non-moving party. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962).
Respondent, in its motion for partial summary relief, relies primarily upon language
in the SFO, including disclaimer language in the written specifications and on the drawings,
to support its contention that the design in the solicitation was not intended to be the final
design upon which appellant could rely. Respondent contends that the undisputed facts
establish that appellant was required by the lease to take the original conceptual design in the
SFO and further design the facility to the 100% design level to meet the performance
specifications. Thus, it contends that there was no implied warranty that the original design,
developed only to the 30% level, would meet the performance requirements.
In support of its position, respondent relies on United States v. Spearin, 248 U.S. 132,
136 (1914), where the United States Supreme Court enunciated the general principle that
“[i]f the contractor is bound to build according to plans and specifications prepared by the
owner, the contractor will not be responsible for the consequences of defects in the plans and
specifications.” Respondent’s Motion at 4. It, thus, argues that because respondent did not
bind appellant to follow the initial design, a decision on the issue of warranty of design
specifications should be rendered in its favor as a matter of law.
Appellant, in its response to the motion and in its cross-motion for summary relief,
agrees that the facts recited by respondent in its motion are not in dispute, since respondent
has simply quoted provisions in the SFO and lease. However, appellant sets forth additional
facts which it contends are also “undisputed” and show that appellant had to construct the
animal holding rooms according to detailed requirements in the SFO, which included the
schematic drawings, and that GSA acted, prior to bid, and during construction, in a manner
that led appellant to believe that it had to comply with the SFO and drawings that respondent
drafted.
Appellant acknowledges that the language on the electrical, mechanical, and plumbing
design drawings states that they are for design intent only and the lessor is responsible for
the final scope, definition, and design, and that they are supplemental to the SFO. Appellant
also cites language in the SFO, however, which states that: “All offers shall meet the
requirements of this SFO and the associated schematic design drawings. Any proposed
variances must be submitted with a specific description in writing with the offer. If the
Government receives no variances, then the offer will be considered to meet all the

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requirements of the SFO and associated schematic.” Appellant’s Cross-Motion at 4; see
Undisputed Fact 4. Respondent states that this provision was applicable only prior to award,
so that all offers would be judged using the same criteria. Respondent’s Response to
Appellant’s Cross-Motion at 2-3.
Appellant also points to Section 4.1 of the SFO, Design Concepts Development,
which provides that:
After award, design development shall be in accordance with the specific
solicitation requirements. The Contracting Officer shall have the right to reject
any aspect of subsequent design development which varies from the concept
and which would adversely affect the Government’s use and occupancy of the
space or the Government’s other interests in the building. Evolutionary
adaptations or changes can be proposed by either party to improve the design,
subject to the Contracting Officer’s approval.
Appellant’s Cross-Motion at 4; see Undisputed Fact 8. This same section also provides that,
“Design development after award will not only be in accordance with the specific solicitation
requirements, but also a direct extension of the original design concept. The further design
development shall retain all the functional and physical characteristics of that concept.”
Appellant contends that the provisions above require any proposed change to be
approved by the Government and that it was not allowed at its discretion to execute further
design development that did not comply with the SFO and the schematic drawings.
Respondent argues these provisions give appellant the right to change design features on the
drawings to meet the performance specifications and that this supports its position that the
initial design did not provide a “road map” for performance.
Appellant further cites numerous lease provisions showing that respondent specified
a particular manufacturer for appellant to use and specified the sizes and placements required
for various ventilation equipment. Appellant has also produced documents showing that
respondent reviewed appellant’s 50%, 90%, and 100% design submissions against
requirements set forth in the written specifications and the drawings to determine whether
appellant was in compliance with the SFO.
Appellant further points to the fact that appellant paid respondent $224,359, with a
notation on the check that it was a “Design Cost Reimbursement Fee.” Appellant contends
that the payment was to reimburse respondent for the cost of designing the building.
Respondent has not addressed whether this fact is material to the dispute, or its legal
significance.

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Appellant also disputes respondent’s characterization of the initial design as being
only to the 30% design level. Appellant’s president stated, in an affidavit attached to
appellant’s motion as Exhibit E, that the documents did not state the design was developed
only to the “ 30%” level, and further, that the drawings and SFO were developed far beyond
any previous design-build project he had worked on for the Government. He also stated that,
at the time he submitted the cost of constructing the animal holding rooms, it would have
been impossible to submit a cost without design documents upon which to base the cost, and
that respondent encouraged appellant to use the design drawings provided as the basis for the
offer.
Appellant, in its motion, cites a number of amendments and changes to the SFO where
respondent made either a correction, clarification, or addition to the original design drawings,
which facts are not disputed by respondent. Respondent, however, argues that most of the
changes made to the design were proposed by appellant and that this is evidence that
appellant knew that the initial design was not meant to be relied upon as the final design for
the facility.
Appellant, in its motion, additionally relies upon the Farnsworth Group report. See
Undisputed Fact 23. Appellant contends that the report evidences that 1) the SFO contained
detailed requirements for the holding rooms’ equipment and installation; 2) appellant
complied with those requirements; and 3) the compliance failed to produce the result
intended--that adjacent rooms could maintain opposite extreme temperatures at the same
time.2
Respondent, in its reply to appellant’s cross-motion, disputes that the Farnsworth
Group report is evidence that the initial design, developed to the 30% design level, was
warranted by the Government, since the report was examining the rooms at the 100% asbuilt level, which it contends was appellant’s responsibility.
Appellant, in support of its position, compares the facts in this case to those in J.E.
Dunn Construction Co. v. General Services Administration, GSBCA 14477, 00-1 BCA
¶ 30,806, in which the Board held that aluminum mullion specifications included in an
architect’s drawings for the fabrication and installation of a glass curtain wall were design

2

Appellant, in its complaint, appears to argue that the specifications did not
clearly state that adjacent rooms had to maintain and withstand extreme temperatures at the
same time. However, appellant seems to have dropped this position in its motion. See
Complaint at 3, 5.

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specifications rather than performance specifications, notwithstanding references to
performance requirements, because they granted the contractor very little latitude to make
changes. Appellant’s Brief in Support of its Motion for Summary Relief, at 15-19.
Respondent counters that Dunn is not supportive of appellant’s position because in Dunn the
Government supplied architectural drawings developed to the 100% level and not to the
30% level as in this case. Respondent’s Response to Appellant’s Cross-Motion at 22-23.
Appellant contends that the specifications were purely design specifications, while
respondent contends that the specifications were purely performance specifications. Under
design specifications, the Government provides precise details of the materials and manner
in which the work is to be performed, from which the contractor is not permitted to deviate.
Under performance specifications, the Government sets forth an objective or standard to be
achieved, and the contractor is to use its own ingenuity to select the means to achieve that
objective or standard of performance while assuming responsibility for meeting the contract
requirements. J.L. Simmons Co. v. United States, 412 F.2d 1360, 1362 (Ct. Cl. 1969).
Whether a specification is a design or performance specification depends upon the obligations
imposed by the specification, not upon the label given to it. Blake Construction Co. v. United
States, 987 F.2d 743, 746 (Fed. Cir. 1993). Contracts may have both design and performance
characteristics. Id.
Appellant acknowledges that the lease required it to submit further design drawings,
but argues that it could not execute further design development that did not comply with the
SFO and the schematic design developed by respondent. Respondent argues that the SFO
stated performance requirements and allowed appellant to submit changes necessary to meet
the performance specifications, and that this evidences that the initial design was not “set in
stone,” as appellant contends.
The build/lease scheme depicted in the SFO is not a model of clarity. The disclaimer
language in the SFO and on the drawings provides strong support for respondent’s position
that appellant was not to rely on the conceptual design to construct the animal holding rooms.
Also, there is no dispute that the lease required further design development by appellant, to
a 100% design level. On the other hand, however, there is evidence in the record supporting
appellant’s position that it did not have unfettered discretion to change the initial design in
order to meet the performance requirements, and that it had to work within the design
parameters provided in the SFO. Respondent also stated, in its motion for partial summary
relief, on page 4, that “[t]he complicated laboratory and animal holding rooms required that
the Government provide a few more details in order to communicate its needs to the lessor
than would normally be provided in a typical generic office build to suit.” We view this as
an admission by respondent that, for the animal holding rooms, the SFO specified more design
requirements than would normally be provided.

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Another fact that has not been put in context is that appellant paid respondent $224,359
as a “Design Cost Reimbursement Fee.” Appellant argues that this payment is evidence that
the design was a part of the requirements, since it was a part of the cost to appellant to
construct the facility. Respondent did not address the legal implication of the payment.
Respondent also argues that, because appellant could submit changes that it believed
were needed in order to meet the performance requirements, and would receive an equitable
adjustment if its costs were increased or decreased, this claim is one arising under the Changes
clause, and is not an issue to be decided under the theory of warranty of design specifications.
In considering a motion for summary relief, we cannot try issues of fact, i.e., weigh
evidence or judge credibility, but only determine whether there are issues to be tried.
Anderson, 477 U.S. at 249. Here, there is a genuine dispute over whether appellant, in
implementing its 50%, 90%, and 100% design requirements, had the discretion to change the
initial design criteria supplied by respondent in constructing the animal holding rooms. Also,
respondent has not established that the design defect is one that could not have been readily
discovered by appellant during its subsequent design development. See J.E. Dunn, 00-1 BCA
at 152,093. Based upon the facts presented in the cross-motions, the law cited by the parties
in support of their positions, and drawing all reasonable inferences in favor of the non-moving
party, we conclude that appellant is not entitled to judgment in its favor as a matter of law, and
respondent is not entitled to partial judgment, on the issue of warranty of design
specifications, as a matter of law.
Decision
Appellant’s MOTION FOR SUMMARY RELIEF is DENIED and respondent’s
MOTION FOR PARTIAL SUMMARY RELIEF is DENIED.

________________________
BERYL S. GILMORE
Board Judge

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We concur:

____________________________
ROBERT W. PARKER
Board Judge

_________________________
ALLAN H. GOODMAN
Board Judge

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/agency%3Acbca%3Aa4a1ea041b694300. Public record. Not legal advice.