# THIS OPINION WAS INITIALLY ISSUED UNDER

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

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THIS OPINION WAS INITIALLY ISSUED UNDER
PROTECTIVE ORDER AND IS BEING RELEASED TO THE PUBLIC
IN REDACTED FORM ON APRIL 4, 2014

CBCA 1849 GRANTED IN PART; CBCA 2386 GRANTED: March 13, 2014

CBCA 1849, 2386

MOSHE SAFDIE AND ASSOCIATES, INC.,
Appellant,
v.
GENERAL SERVICES ADMINISTRATION,
Respondent.
Laurence Schor and David A. Edelstein of Asmar, Schor & McKenna, PLLC,
Washington, DC, counsel for Appellant.
James F. H. Scott, Office of General Counsel, General Services Administration,
Washington, DC, counsel for Respondent.
Before Board Judges SOMERS, VERGILIO, and POLLACK.
POLLACK, Board Judge.
On December 30, 2009, Moshe Safdie and Associates, Inc. (MSA, appellant, or
architect/engineer (A/E)) filed an appeal from a denial by the General Services
Administration (GSA) contracting officer of MSA’s claims for compensation in performing
additional services on design contract number GS-01P-99-BWC-00l6 for the United States
Courthouse in Springfield, Massachusetts. Appellant’s claim of $2,946,622.99, docketed as
CBCA 1849, has been submitted in three segments. MSA alleges it is entitled to additional
compensation (1) because in the development of the original design from March 2000

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through June 2003, GSA changed the criteria, thereby increasing MSA’s design efforts
($1,118,423.59); (2) starting in late 2003, GSA wrongfully required MSA to provide a
redesign to meet the design contract’s target construction budget ($1,320,378.49); and (3)
GSA directed efforts on the post-construction contract services (PCCS) which exceeded the
scope of the modification concerning such work ($460,431.23). MSA’s claim was audited
by GSA. MSA’s claim accepted some of the deductions made by the GSA auditor, which
accounts for differences in the audited claim versus what is now sought. MSA also claims
$47,389.68 for past-due invoices. MSA originally sought $73,377; however, the parties have
agreed on $47,389.68 as the balance due on the remaining invoices. The invoices remain
unpaid due to a set-off as well as a counterclaim asserted by GSA.
In MSA’s appeal of GSA’s government claim, docketed as CBCA 2386, MSA denies
that GSA is entitled to $5,275,880 as reimbursement for escalation costs which GSA asserts
are consequential damages due to appellant’s late delivery of the project. GSA couches the
claim as one for breach of the contract’s Schedule clause and asserts that because it is a
breach of a contract term, it does not implicate the Responsibility of Architect/Engineer
clause and therefore does not require a showing of professional negligence on the part of
MSA.
On October 13, 2011, we denied appellant’s motion for summary relief as to the
matter of consequential damages. Moshe Safdie & Associates, Inc. v. General Services
Administration, CBCA 2386, 11-2 BCA ¶ 34,851. We concluded that consequential
damages could be available, depending on how the case proceeded.
Summary
These appeals involve four claims (three by appellant and one by GSA) which, in
order of presentation in this opinion, seek added design costs by appellant for work on the
original design, for work performed during a government-directed redesign, and for work
performed during the post-construction phase of the project. The fourth claim involves a
demand by GSA for consequential damages arising out of late delivery (due to need to
redesign).
The parties entered into a contract for the design of a courthouse with the cost of
construction capped at $35 million. The cap was informally raised during the design process
to approximately $43 million. The record references various targets ranging from $41
million to $48 million, with MSA’s last estimate (before the construction bid solicitation)
being almost $45 million. We find that during the design phase, the design criteria GSA
gave MSA was significantly changed, particularly as to blast and Leadership in Energy and

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Environmental Design (LEED) criteria, from the parameters provided by GSA at the time of
pricing. We find that those changes entitle appellant to compensation for its added costs.
Appellant has presented a total cost claim. We determine that because of the nature
of the added design work, segregation of costs would be unreasonable. We have modified
the total costs claimed downward, however, based that upon a number of factors, including
but not limited to the “give and take” inherent in a design contract, less than perfect bidding,
inefficiencies not the cause of GSA, and money left on the table in negotiations for some of
the modifications agreed to and priced by both parties.
In creating the design, appellant was responsible for assuring that the project could
be built for the costs allotted for construction. The contract contained a clause that provided
that if bids came in over the number, appellant would have to redesign at its own costs,
unless the cost increase was due to causes beyond its reasonable control. After appellant
completed the design and provided estimates that reflected that the target price could be
achieved, the project went out for bids. Bids, based on appellant’s design, significantly
exceeded the target price. After examination and various discussions, the Government
directed appellant to redesign the project pursuant to the contract’s Design Within Fundings
Limitations clause. For the redesign, the Government increased the budget available for
construction, which if anything inured to appellant’s benefit.
Concerning the redesign claim, we examined the reasonableness of the original target,
the actions of parties as to estimating, and the effect of the Government’s earlier changes.
We conclude that the Government had a right to direct redesign. We find that appellant
should have realized during the initial design phase that its design would not yield bids in
line with the target number and, therefore, it had an obligation to have either modified its
design to meet the target or, at a minimum, notified GSA as to the probability that the design
would not secure adequate bids. Accordingly, we conclude that the costs of redesign are to
be borne by appellant.
We also find, however, that during the redesign the Government added design tasks
which were outside the needed scope and that those efforts warrant some compensation to
appellant. We find additionally that appellant was impacted by the Government’s choice to
change from concrete to steel frame; that in part, the scope of that change exceeded what was
necessary; and therefore some compensation is due for appellant’s effort.
Once the design was near completion and construction about to begin, GSA realized
that it would need some post-design construction services from appellant. To accomplish
that, the parties engaged in negotiations as to added work. Disputes arose during that

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performance as to handling Requests for Information (RFIs), value engineering, and items,
designated by appellant as exceptions. The Government made virtually no challenge to
appellant’s claims as to added work for the value engineering and exceptions. The
Government challenged payment for the claimed additional RFIs. We find that the disputed
RFI work was payable. We also find that appellant is entitled to payment for some other
work items that GSA disallowed due to auditor questions.
CBCA 2386 concerns MSA’s appeal of GSA’s government claim for consequential
damages (escalation costs) caused by the late start of construction. We conclude that for
GSA to recover it needed to establish professional negligence on the part of MSA. We find
it did not. We reject GSA’s argument that the designer could be held to plain breach, finding
that such would be inconsistent with the remedies identified in the Design within Funding
Limitations clause, the Responsibility of Architect/Engineer clause, and case precedent.
Finally, we address a number of accounting matters, principally dealing with hourly
rates and overhead. We reject the adjustments to hourly rates as arbitrary and unsupported.
We, however, make some adjustments as to overhead.
Witnesses and Record
The record for these consolidated appeals includes appeal files and supplements that
exceeded five thousand pages. In addition, appellant submitted a separate protected appeal
file of over two thousand pages, and the parties entered into 165 stipulations.
During a ten-day hearing, MSA called three of its employees as witnesses.
Mr. Warren Mathison, MSA’s managing principal and a licensed architect for thirty-nine
years, negotiated the contract and was involved in correspondence and meetings throughout
the life of the contract. He spent extensive time on this project, but it was not his sole
obligation. Mr. David Honn, a licensed architect for twenty-nine years, was the project
manager from approximately May 2001 to the end of the project. He was not involved in
negotiating the price, but from May 2001 he worked on the project on an extensive, but not
exclusive basis. Mr. David Orens, who had been practicing in the field for fifteen years, and
a registered architect since 2005, became involved in the project during the design phase.
His role increased during the redesign and PCCS phase. He worked full-time on the project.
MSA also called representatives of two of its subcontractors on the project,
Weidlinger Associates, Inc. (Weidlinger) and Cosentini Associates (Cosentini). From
Weidlinger, MSA called Mr. Samuel Tinsley, a structural engineer with twenty-two years
experience and the principal structural engineer on the project; as well as Dr. Robert

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Smilowitz, a principal with Weidlinger (also blast consultant) holding a Ph.D. in civil
engineering. Dr. Smilowitz was brought on as a consultant, once MSA realized the scope
of blast requirements. He spent considerable time on that issue and meshing those
requirements with other building features and functions. He has worked in the field for over
thirty-four years. MSA also presented testimony from Mr. Robert Leber, a senior vice
president with Cosentini. Cosentini was responsible for the mechanical, electrical, and
plumbing (MEP) design, and Mr. Leber was a licensed engineer with more than twenty years
experience. MSA called as a final witness, on rebuttal, Mr. Chad DaGraca, an accountant,
who testified as to accounting matters.
GSA called Mr. Peter Menzies, who was the contracting officer (CO) during virtually
all of the project. He testified as to negotiations on price and his dealings with MSA during
the contract. Mr. Menzies has no technical degrees. GSA also called Mr. Carl Fletcher as
a witness. Mr. Fletcher did not begin his involvement on the project until the construction
phase. At that time, he worked for Coast & Harbor, a firm assisting GSA on construction
management and inspection. He had no role in either the design or redesign. He became a
GSA employee in March 2007, being assigned as project manager. GSA identified Mr.
Fletcher as the individual who provided the technical analysis that Mr. Menzies used as the
basis to deny MSA’s requests for equitable adjustment (REAs). At the hearing, GSA relied
on him to establish its contention that the contract documents adequately conveyed the work
required of MSA. The Board allowed his testimony based on his review of documents, but
was well aware of his limitations as a witness. Mr. Fletcher is not a licensed architect or
engineer, and his resume showed no particular experience in structural or mechanical
engineering, architecture, or estimating. GSA also called Thomas Malinder, a licensed
architect, who had a supervisory role with GSA during the project, but no extensive
day-to-day involvement. His role was at best intermittent. The project was run for GSA by
Mr. Frank Saviano, an architect and the GSA project manager. He, for all intents and
purposes, was GSA on this project. GSA relied on Mr. Saviano for technical management
of the project.
GSA also provided testimony from Mr. Adam Gooch, an auditor with the GSA Office
of Inspector General, who provided his opinion on the costing, and Mr. John Kenny, whose
testimony went solely to the calculation of damages for the counterclaim.
There were two notable gaps as to witnesses. The first was the absence of
Mr. Saviano, who ran the project and was the GSA official most familiar and involved with
the project. Mr. Saviano had been deposed by MSA and thus, at some point, could have been
available to GSA. He was clearly the GSA official around whom almost all of the significant
events revolved. Because of his absence, much of the MSA testimony as to what occurred

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and why it occurred went unchallenged. The second notable absence was the lack of any
witness from Construction Cost Systems, Inc. (CCS), the firm responsible for providing the
MSA target estimate during the design. Due to its absence, the Board had before it no
material evidence to show what steps CCS took to prepare the estimates or CCS’s rationale
for why the numbers were not met. To the extent MSA did provide testimony as to the
actions of CCS, the MSA testimony provided virtually no insight into the CCS procedures
and actions. The Board also notes that neither party called a witness from Heery
International, the firm providing construction management services to GSA during the
design. However, the record contains substantial evidence, through documents, as to Heery’s
role and activities.
Findings of Facts
Pre-Contract
1. In February 1996, GSA contracted with a third party for a prospectus
development study (PDS) regarding the design of a new federal courthouse in Springfield,
Massachusetts The PDS was later incorporated by reference into the design contract in
dispute. At the time, the PDS was primarily used by GSA to solicit funding from Congress
for the project. The PDS identified a number of general project requirements and design
criteria. It described the proposed courthouse as 165,000 gross square feet in area and
estimated construction costs at $41,025,096, before including contingencies, design,
inspection costs, markups, as well as other items. The PDS estimate contemplated a June
1999 start of construction. The PDS was a substantial document exceeding 160 pages.
2. Using the PDS, GSA submitted a fact sheet to Congress in 1998, asking for
$2,323,000 in appropriations for design and review, along with funding for acquisitions. The
fact sheet showed the building as containing 158,000 gross square feet and estimated
construction at $35,384,000. GSA’s estimate, when adjusted to include all markups, set the
total project cost at $43,281,000. At the time of the PDS, the precise setting for the
courthouse had not been set, although the general area was identified.
3. GSA identified a number of PDS provisions which it considers relevant to the
claims. The PDS was divided into three volumes, the first being an executive summary and
the third designated as appendices. Subsections of volume II were designated by the letters
A through F, with the sections designated by letters having further subsections. Listed below
are items that were highlighted by GSA as support for its position on blast and green issues
associated with the scope of the required design. All PDS citations below are from
volume II.

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4. Section B, titled Functional Goals and Objectives, listed fourteen objectives.
There was no indication that one objective was more important than another or that the
objectives were listed in any priority order. The introduction provided in pertinent part:
The following goals and objectives include all project requirements
that define the U.S. Courts and GSA program expectations for the
design and construction of the new courthouse.
Goal 1: Provide a safe, efficient, flexible, comfortable, and healthy
environment for the performance of all U.S. courts and supporting
federal agency missions.
Provide a facility that is sensitive to the art and architecture of the
Region, has architectural merit, and conveys a community presence.
The first objective, Security, stated:
Objective No. 1: Security
a. Building and building occupant security (internal and external to
the tenant agency boundaries) to protect against vandalism,
burglary, sabotage and espionage is of prime importance in this
facility. The security systems and protocols provided shall comply
with a Level IV requirements based on the vulnerability assessment
guidelines for federal buildings as well as all requirements of the
U.S. Court Design Guide and the U.S. Marshal’s Service guidelines.
b. Security devices or infrastructure elements designed into the
building structure and systems shall include the following:
1. Building siting and setback with physical
barriers and exterior surface materials appropriate
to protect the building structure and its occupants
against ballistic or blast attack.
5. Objectives 2-7, in the order listed, dealt with vehicle access control and
pedestrian control at entrances; secure parking; vehicle and building pedestrian sallyports;
dedicated elevators for judges and Marshals Service; screening of those entering the building;

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and perimeter building security protection provided by enhanced lighting, cameras, and
monitoring devices.
6. Section D of the PDS, titled Design Directives, listed fourteen categories of
work, including foundations, electrical, superstructure, and interior construction. Security
was item fourteen, the last item on the list. As was the case with objectives, this listing
contained no language designating one item as more important than another, or attributing
any significance to the order of listing. Each numbered item had subsections. Paragraph
4.1.1, Exterior Walls Concept, provided the following:
2. Provide an exterior wall design that will provide acceptable
solutions to the following issues. Detail each issue in the design
analysis for GSA’s review and approval
a. Blast and ballistic resistance
b. Air infiltration
c. Water penetration
d. Control of corrosion and staining
e. Thermal movement
f. Wind loading
g. Equipment loading
h. Horizontal building movement (interstory drift)
i. Building shrinkage and creep
j. Component deflection.
7.
provided:

Paragraph 4.1.2, under the subheading Exterior Doors and Windows Concept

PERFORMANCE STATEMENT
It is the intent of this design that the new U.S. Courthouse be fitted
with exterior doors and windows that are energy efficient and
configured to allow efficient safe movement of both personnel and
material, are secure, durable, and easily maintained and conform to
all applicable codes and regulations.

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DESIGN DIRECTION
1. The A/E design shall include but not necessarily be limited to the
following Building systems, defined as all materials installed and
operational: (1)
a. Windows that will be:
25% of the exterior envelope
50% level IV bullet resistant (30-06 projectile
resistant)
25% operable (or allow manual introduction
of outside air in an alternative approved
method)
100 % insulated and low E
8.

Section 14.1, under Security Concept, provided the following:
1. The A/E design shall include, but not necessarily be limited to,
the following security system components or concepts: (1)
a. Exterior to the building - passive concept:
i. Building set-back from property lines,
roadways and other hazards
ii. Site physical barriers, including bollards,
planters, fences, or other visual or physical
barriers.
b. Exterior to the building - active concepts (on emergency power):
i. Vehicle Access control to parking on site
and secure parking with card key and gated
access
ii. Heightened levels of exterior lighting
iii. Building perimeter and site CCTV systems
with recording equipment
c. Building - passive concept

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i. Secure enclosed parking for designated
tenant agency personnel.
ii. Building occupant movement protected,
directed or limited by the following:
Pedestrian sallyports
Judges secure elevator
U.S. Marshal secure elevator
Isolated secure corridors
Dedicated tenant circulation corridor
Detention cells
iii. High density building curtain wall
components to provide blast and ballistic
protection (emphasis added).
iv. Ballistic glazing in selected areas.

9. In its briefing, GSA has cited us to no other references to blast in the PDS
beyond that in Section 14. The PDS does reference other documents, including the GSA
Facility Standard for the Public Building Service (PBS) 100 (1993) (PBS 100). The PBS 100
was a principal GSA construction guide and defined and identified criteria that GSA required
to be used in the design and construction of GSA buildings.
10. On December 17, 1998, after Congressional approval for the project, GSA
published a potential sources sought (PSS) notice, where it sought A/E services for the
courthouse design. The PSS identified the target price for construction at $35 million and
identified the project as being a design excellence (DE) procurement. Design Excellence
Competition was a formal program aimed at attracting and selecting high quality architects
that would not otherwise be bidding to design a government building. The PSS stated that
the A/E fee for design services would be within the 6% statutory limitation based on the
government construction contract established at the time of negotiation. The notice provided
that GSA would be considering a number of factors, including energy conservation and the
ability of the designer to make use of “green” building techniques. The PSS identified
several guides that were to be used by the designer. Among the listed guides was the 1993
PBS 100, which the PSS noted was available at GSA for review.
11. MSA received the PSS notice on or about January 6, 1999. MSA was among
several A/E firms that provided submissions under the DE program for this project. Stages
1 and 2 of the competition dealt with the assessment of qualifications, while the final stage,

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stage 3, was an evaluation of the designer’s vision for the project. The design competition
and ultimate selection did not involve pricing.
12. As part of the competition process, MSA secured a copy of the PBS 100. The
parties agree that notwithstanding the reference to the 1993 version in the design documents,
GSA provided the 1996/1997 PBS (96/97 PBS 100) to MSA for competition and
negotiations. Mr. Mathison used that version, along with other information, to familiarize
himself with the project. The 96/97 PBS 100 included a security chapter which primarily
dealt with electronic security, such as closed circuit TV, special locks, panic hardware, and
lighting. It also called for the structure to be designed for progressive collapse. GSA has not
identified any provision of the PDS, PSS, or 96/97 PBS 100 which either calls for the
hardening of the structure to resist blast loads or designates a specific level of protection that
had to be met.
13. The 96/97 PBS 100 requirement that the building be designed for progressive
collapse called for the building to be designed so that the failure of a beam or slab would not
result in failure of the structural system below or in adjacent bays. MSA, through its
structural consultant, Weidlinger, priced progressive collapse into its design proposal.
14. In May 1999, at a point when MSA had been selected for the second phase of
the design competition, MSA officials, including its principal, Moshe Safdie, attended a
meeting with GSA. GSA has asserted in its briefing that at the meeting, the parties discussed
security issues, including a need for a twenty-foot setback from the street for the building,
and that Mr. Safdie was given an undated document titled “Vulnerability Assessment, GSA
Security Design Criteria.” GSA asserts that the document addressed setbacks and put MSA
on notice of blast concerns for the design. GSA asks the Board to conclude from possession
of that document that Mr. Safdie and MSA were aware or should have been aware of GSA’s
interest in blast resistivity as a significant part of the design, and should have priced blast
enhancement efforts (similar to those ultimately required by GSA) into MSA’s price
proposal. There is no dispute that Mr. Safdie was at the meeting and we do not doubt that
some security matters were discussed. However, any conclusion which put the document
into MSA hands would require us to engage in speculation. GSA did not produce a witness
who was at the meeting, to show that Mr. Safdie received the vulnerability assessment
document on that day. Instead, GSA relied entirely upon the fact that the document had
written on the first page the word, “Security,” and the writing was apparently in Mr. Safdie’s
handwriting. In rebuttal, MSA presented testimony of Mr. Honn that MSA did not receive
the document until June 2001, well after contract performance had begun and, therefore, it
had not been earlier received by Mr. Safdie. Mr. Honn was not at the May 1999 meeting.
Apparently, Mr. Mathison was at the meeting. He, however, was not questioned as to what,

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if anything, Mr. Safdie received or whether blast security as to structural elements was a
significant topic of the meeting. The contention that Mr. Safdie had the document was first
raised by GSA as an argument in briefing. Both prior to and at the hearing, GSA made no
indication that the document or allegations as to MSA possession in May 1999 would be an
issue. Moreover, even if MSA had the document in May, that was months before MSA’s
selection as the designer on this project. But for the inference sought as to the document,
GSA produced no substantial evidence as to any emphasis at the meeting as to blast or other
protection considerations. Notes of the meeting referenced the use of setbacks and other
protective measures, but did not address matters as to hardening of the structure or using a
more robust protective collapse criteria. Further, the document allegedly presented to MSA
at the May meeting was incomplete, lacked detail and context, and was made up of excerpts
from a larger document.
15. On July 12, 1999, MSA was notified in writing that it had been selected “to
fulfill the design requirements for the project.” The MSA design selected by GSA called for
a primary building with a curved shape for much of the structure, and a glass facade curtain
wall in the front, along with a courtyard which allowed for the retention of several historic
trees. The design included a second building, connected to the main courthouse, to house the
judges’ chambers. Messrs. Saviano, Malinder, and Menzies comprised the GSA final
selection panel. In a document titled “Design Excellence Exhibit,” which was transmitted
by facsimile to Mr. Mathison from Mr. Saviano, GSA highlighted the curved nature of
MSA’s design as a significant factor in the selection.
16. This design contract was MSA’s first foray into designing a project for the
Federal Government. In determining its price, MSA secured pricing from a number of
consultants, including Weidlinger (structural) and Cosentini (mechanical, electrical, and
plumbing (MEP)). Both had some previous government contract experience; however,
neither played a significant role in the MSA negotiations with GSA as to the design price for
this project. The evidence indicates that the consultants secured information as to the project
through MSA, but does not show how much of the PDS information was provided to them
by MSA. While MSA came to the contract with a world-class reputation as an architect, its
prior work did not ordinarily involve blast resistivity.
17. On September 8, 1999, Mr. Menzies sent MSA a request for fee proposal that
was accompanied by a document that included updated design criteria. According to GSA,
Mr. Menzies had a base design budget of $2,323,000 with which to work. MSA used that
criteria in pricing its cost proposal. With some (non-material) modifications, the criteria
ultimately became part C of the final contract. The building was to be 165,000 square feet
in area, with five courtrooms and other supporting space. Although the location of the

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building site was generally identified, details remained as to the precise setting. Construction
was priced at $35,000,000 with a planned construction award date of December 1, 2001.
Other aspects of the design criteria that MSA was to meet included use of metric
measurements, energy efficiency (commensurate with architectural values), and where
possible, green criteria. The original package showed a scheduled completion duration of
ninety-six weeks, which was later negotiated to seventy-eight weeks. Part C provided that,
after award, the A/E would be required to participate in a vulnerability assessment that would
include input from the Marshals Service and GSA security personnel.
18. The following are relevant provisions from the contract specifications provided
to MSA. The provisions are set out in exhibit 2 of the appeal file, and we identify them by
the page in exhibit 2 on which they appear. We list them consecutively:
Page 1. The project description in the contract’s design criteria incorporates the
PDS program components and design parameters and provides:
(Reference Springfield Courthouse Prospectus Development Study
(PDS) for program components, design parameters, and other
related items)
Page 7. The contract incorporates by reference FAR clause 52.236-22, Design
Within Funding Limitations (APR 1984), often referred to at the hearing and in
briefing as the Limitations of Funds clause (LOF). The proposed contract that was
provided to MSA, as set out below, did not contain an estimated construction
contract price for the blank in subparagraph (c) (that price was provided later on
page 21):
Design Within Funding Limitations (APR 1984)
(a) The Contractor shall accomplish the design services required
under this contract so as to permit the award of a contract, using
standard Federal Acquisition Regulation procedures for the
construction of the facilities designed at a price that does not exceed
the estimated construction contract price as set forth in paragraph c.
of this clause. When bids or proposals for the construction contract
are received that exceed the estimated price, the contractor shall
perform such redesign and other services as are necessary to permit
contract award within the funding limitation. These additional
services shall be performed at no increase in the price of this

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CBCA 1849, 2386
contract. However, the Contractor shall not be required to perform
such additional services at no cost to the Government if the
unfavorable bids or proposals are the result of conditions beyond its
reasonable control.
(b) The Contractor will promptly advise the Contracting Officer if
it finds that the project being designed will exceed or is likely to
exceed the funding limitations and it is unable to design a usable
facility within these limitations. Upon receipt of such information,
the Contracting Officer will review the Contractor’s revised
estimate of construction cost. The Government may, if it
determines that the estimated construction contract price set forth
in this contract is so low that award of a construction contract not
in excess of such estimate is improbable, authorize a change in
scope or materials as required to reduce the estimated construction
cost to an amount within the estimated construction contract price
set forth in paragraph c. of this clause, or the Government may
adjust such estimated construction contract price. When bids or
proposals are not solicited or are unreasonably delayed, the
Government shall prepare an estimate of constructing the design
submitted and such estimate shall be used in lieu of bids or
proposals to determine compliance with the funding limitation.
(c) The estimated construction contract price for the project
described in this contract is $____.
Page 7. The contract included FAR 52.236-23 (APR 1984), the
Responsibility of the Architect/Engineer clause, which provided:
The Responsibility of the Architect/Engineer Contractor (APR 1984)
(a) The Contractor shall be responsible for the professional quality,
technical accuracy, and the coordination of all designs, drawings,
specifications, and other services furnished by the Contractor under
this contract. The Contractor shall, without additional
compensation, correct or revise any errors or deficiencies in its
designs, drawings, specifications, and other services.

14

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(b) Neither the Government’s review, approval or acceptance of,
nor payment for, the services required under this contract shall be
construed to operate as a waiver of any rights under this contract or
of any cause of action arising out of the performance of this
contract, and the Contractor shall be and remain liable to the
Government in accordance with applicable law for all damages to
the Government caused by the contractors’ negligent performance
of the services performed under this contract.
Page 15. The contract contained the following provision, which dealt with delivery
of the design.
Part B - Special Provisions for Architectural-Engineer Design Services
D. Delivery of services:
1. Submission, schedules for services shall be as specified in the
Design Criteria.
2. Submission schedules for services may be adjusted, extended by
the CO if delays arise in the providing of services due to causes
beyond the control of the AE and providing the AE notified the CO
in writing as to the cause and effect of the delay(s).
3. Submission schedules for services may be extended by the CO
for the convenience of the Government. The AE will be consulted
as to and apprised in writing of new submission, delivery schedule.
Page 21. The contract provided a listing of possible special consultants, including:
4. Special Consultants
Special consultants shall include but are not limited to the
following: Courts programming-planning-design, Fire Protection,
Acoustical, Elevator, Surveying, Security/Blast consultant, and
others as required and incidental to the work of this project.
On page 21, the contract also provided a design target price:

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The construction budget (Estimated Construction Contract Amount
ECCA) for this project is $35,000,000 and includes escalation costs
for a projected construction contract award date of 12/01/01. The
Estimated Construction Contract Amount (ECCA) for additional
reimbursable work items is $3,500,000 and it also have [sic] been
escalated for a projected construction contract award date of
12/01/01, however reimbursable work items may or may not be
added by GSA.
Page 34. The contract included design criteria that addressed the need to include
energy conservation and environmental goals, directing appellant to “[d]evelop
design predicated on the following basic criteria:”
A. Sustainable Design, energy conservation, value engineering, and
life cycle costing are to be an integral part(s) of the design effort.
The energy conservation/environmental goal on this project is to
reduce consumption and employ sustainable design/green building
principles to the extent possible.
B. The AE shall provide the most energy efficient design possible
commensurate with architectural values. Requirements re: energy
conservation, contained in the GSA publication PBS PQ100.1,
Facilities Standards for Public Building Service, and GSA Green
Courthouse Design Concepts Manual are to be followed.
C. The AE shall closely coordinate proposed mechanical system
designs and associated equipment with the applicable local utilities
for their review and recommendations regarding “demand side
management” (DSM) and explore the potential for the obtaining
[of] energy conservation incentive/rebate programs.
Page 36. The contract set out security requirements at paragraph 25 of part C. As
contended by GSA, MSA should have included money in its pricing of the design
to cover the costs of incorporation of whatever security directions came out of the
referenced meetings:
25. Security Requirements: After the A/E has reviewed the security
documents and reference material provided by GSA, a security
meeting will be held to discuss overall security needs and strategies to

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respond to comments and concerns of the A/E based on their review
of the security documents. The A/E should record their security
concerns in preparation for the security meeting. The security meeting
attendees will include the US Marshals, the GSA Federal Protective
Service, the US Courts, the US Attorneys, and other GSA project team
members. The A/E will be required to consider security requirements
as an integral component of the development of plans for the three
concept designs and their evolution through the tentative and
construction document phases. The A/E will be required to participate
in a Vulnerability Assessment that will include input from the US
Marshals and the GSA Federal Protective Service. The goal of the
Vulnerability Assessment is to take a balanced approach to security
considering effectiveness and safety while incorporating a
multi-disciplinary approach and coordinating among professionals.
The A/E will be required to attend a one day GSA Federal Building
Security Seminar in Washington, DC. The theme of the seminar is
maintaining public access/open & inviting design while incorporating
security elements and technology as an integral component of design.
Pages 37-38 of the initial appeal file set out the design schedule:
Project Administration:
A. Correspondence:
....
(2) Contract documents are to be submitted in accordance with the following
schedule:
Extra Field Investigation (EFI) I Report:
Programming Phase
Final Working Documents (FWD):
Concept Phase Documents
Tentative Phase Documents
Mid-Point
Final Working Documents
Study and Report
TOTAL:

2 weeks
6 weeks
20 weeks
14 weeks
16 weeks
18 weeks
2 weeks
78 weeks

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Design Review time is built into the 78-week schedule. GSA, with
input from the A/E will develop a strategy to limit the amount of lag
time during review process. The intent of the proposed schedule is
to provide 78 weeks from the dates of contract work to the delivery
of the “100% Documents” (all reviews and corrections including
on-board review @ 100% are included). Should the 100%
Documents need corrections, before issue as a “Bid Set” the
correction time is not indicated in the schedule.
In its appeal file for the counterclaim, GSA included a schedule that showed seventysix weeks and had four rather than six weeks for the programming stage. The two-week
difference is not material to our determinations in either of the appeals before us.
19. Nothing in the contract or in any of the design criteria (including the PDS)
mentioned or incorporated the following documents: GSA Security Criteria, Draft Revision
January 17, 1997; GSA Security Criteria, Draft Revision, October 8, 1997; Inter Agency
Security Committee Security Design Criteria (ISC); or the 2000 PBS 100. Additionally, the
contract documents provided to MSA did not contain the word LEED, nor did any document
set a LEED target (such as silver).
Contract Negotiations
20. On October 8, 1999, MSA submitted its first fee proposal to GSA for
$4,591,499. Messrs. Menzies and Saviano negotiated for GSA, and Mr. Mathison negotiated
for MSA. Mr. Menzies acknowledged in his testimony that he had no architectural training
and no understanding as to the design effort that was needed for the project. He deferred to
Mr. Saviano, who took the lead. Mr. Mathison testified that in negotiating the design price,
he was aware of the presence of a 6% statutory cap on design costs and he knew the 6% was
to be applied against the government construction estimate. Due to the 6% cap, GSA could
not enter into a design contract in excess of $2,323,000. Mr. Mathison at the time of
negotiation was not privy to a specific government estimate for design work. Mr. Mathison
stated that he did not fully understand the Design Within Funding Limitations (LOF) clause
at the time he signed the contract, acknowledging that it was a clause which MSA had not
previously encountered. In negotiating, MSA proceeded under the assumption that the site
would be a flat, 2.5 acre parcel. The proposed site was in an historic neighborhood, but the
exact location and placement of the buildings on the property was still in flux. Although
provisions of the PDS identified the need for setback of the building for protective purposes,
nothing in the contract or PDS set a specific distance standard for setback.

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21. As negotiations progressed, MSA reduced its initially-proposed price and
manhours estimate. Mr. Mathison explained that he was constantly confronted with charges
that he was making it too complicated and seeing more work than necessary. He said that
Mr. Saviano and Mr. Menzies made representations that the building requirements would not
be new or untested, that GSA would reduce the scope of contract services significantly, and
that GSA would streamline and limit hours needed for the design work. He said he was told
it would not be as cumbersome or complicated as he understood it, and that GSA
representatives would smooth the process and make it easy, enabling MSA to keep its price
and hours down. He stated that MSA’s reductions reflected reliance on those
representations. In support of that, he pointed to the reduction in schedule time from the
ninety-six weeks set out in the initial design criteria to seventy-eight weeks (an 18.8%
reduction). He said that the schedule reduction was a factor in driving costs down and was
in line with the GSA negotiation assurances that the project was simple and that GSA would
expedite the process. He testified that shorter performance time leads to a lesser charge,
stating that he “thought we could get the work done in that time frame if what the
Government was telling us worked out.” He testified that he was aware of “give and take”
in architectural contracting and priced that into the contract.
22. Although Mr. Honn was not involved in the price negotiations, he did have prior
experience in estimating. He acknowledged that, in normal practice, the hours a designer
predicts for a project are typically based on the scope of work, noting that an A/E tries to
match scope with work ethic and schedule. He stated that sometimes the estimate is dead on
and other times it is a miss. The latter could occur for a lot of reasons, noting that the
company could decide a particular area was important and spend more time on it than had
been originally planned or one could miss some aspect when putting dollars together. As to
give and take, he explained that it varies, not only on task, but also based on with whom one
is dealing.
23. Mr. Menzies stated he never made any representations to Mr. Mathison
identifying the effort that MSA would need to put forth, nor did he state that the work would
be streamlined, was not new, and was not untested. He said that, in his experience, he had
never encountered a contractor who had accepted GSA’s explanation of what a contractor’s
effort of performance would be.
24. The parties negotiated over a four-to-five month period and agreed on a price of
$2,322,800, substantially below the initial MSA proposal, but in line with the 6% statutory
cap. MSA’s final negotiated price included $1,912,800 in base services and $410,00 for
three reduced options. Changes in scope or eliminations as to the following five categories
accounted for approximately half of the dollar drop from the initial proposal: (1) security
consultant, (2) audio visual acoustic, (3) post contract construction services, (4) independent

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constructability review, and (5) value engineering. Of the above, items 3 through 5 were
deleted options, which had originally been priced at $1.3 million. Other significant
reductions came from MSA agreeing to reduce overhead from 154% to 142%, which resulted
in a reduction of $212,000; and MSA reducing its man-hours based on the 18% reduction in
schedule time for the work from ninety-six to seventy-eight weeks. As explained by Mr.
Mathison, his final number reflected an approximate reduction from the original labor
numbers of 26%, which MSA compares to the 18% in reduced time from the original
schedule.
25. MSA’s primary design consultants also lowered their pricing. Weidlinger
reduced its price from $306,000 to $218,000 and Cosentini reduced its from $518,587.50 to
$350,000. Witnesses for both stated that their reductions were directly attributable to the
shorter project time. Mr. Tinsley, of Weidlinger, stated that he had some concerns as to the
number, but was told by Mr. Mathison that the building was straightforward and fundamental
with respect to column grids, with grids not being long span. He was also told that GSA
would be very responsive to submittals. In breaking down his pricing, Mr. Tinsley testified
that $165,000 was for the structure and $47,000 for blast considerations. In addition, he
testified that blast considerations were also part of the progressive collapse analysis. For
purposes of comparison, GSA’s internal pre-award estimate for both structural and blast
design was $175,000.
26. To get to the final number, GSA significantly reduced the initially provided
scope of the independent constructability review (ICR). The ICR covers a number of
matters, one of which was to pay for an independent party to cross-check, in detail, the
construction costing of the project as the design evolved. In his post-negotiations
memorandum, Mr. Menzies compared the $150,000 which GSA ultimately allotted for the
service (in the negotiated contract) to the initial MSA number for the service of $454,184.
He described MSA’s initial proposal as overstating all levels of effort. He stated, “Although
the $150,000 as agreed upon is considered less than ideal (in fact below the GE [government
estimate]), it should be adequate to cover the basics at a minimum.” Although the record is
not entirely evident as to some of the details surrounding the ICR work, what appears evident
is that Heery International was the firm that performed ICR work on the original design
phase. While it was paid through the MSA contract, GSA had control over Heery’s activities
and GSA and not MSA had the contractual relationship with Heery. As addressed later in
this decision, due to cost constraints, GSA did not pay Heery for full reviews, and
accordingly Heery did not conduct them.
27. MSA and GSA completed negotiations on March 23, 2000, and entered into the
design contract on April 26, 2000, for $2,322,800 This amount includes the base,
$1,912,800; option 9, $60,000; option 4, $150,000; and option 3, $200,000. The contract

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called for construction award on December 1, 2001. Option 4, as awarded, was the ICR
option that had been reduced to $150,000. After award, Mr. Menzies prepared a price
negotiation memorandum in which he addressed the disparity between the pricing of the final
agreement and MSA’s earlier proposal. He stated that MSA’s proposal was extremely
overstated in all levels of effort, with GSA estimators basing that determination upon
experience on other, recent courthouse design projects and established national courthouse
benchmarks. He continued,
With such a large disparity between the GE and MSA’s proposal,
it would be extremely difficult at best to hope to reduce the A/E’s
level of effort to a point within the government’s budget and
maintain a level of design excellence from the designer. Although
the hours as proposed must be reduced significantly, a creative
approach to accomplishing the work must be embraced by both
GSA and MSA in order to reach an agreement and obtain a
successful design for this project. The fact that very little effort
specified within the base design criteria is optional, decreases the
opportunity to reduce the scope in any way in order to reach
agreement with the A/E. The A/E as well as GSA must be
challenged with more economical and creative means to satisfying
the requirements within the design criteria.
Design Phase
28. Soon after the contract was underway (approximately April 2001), GSA (without
MSA involvement) submitted a prospectus to Congress requesting $53,436,000 for the
project. This request identified an estimated construction cost of $43,836,000, an increase
from the $35 million set out as the construction cap in the MSA contract. GSA has conceded
that the budget increase was not due to any change to the project design requirements. The
estimated construction cost on which the request was based was a benchmark calculation
performed by Jeet Mahal of GSA in August 2000. GSA has stipulated that the Mahal
calculation did not include allowances for compliance with the GSA design criteria dated
October 1997, LEED compliance, or changes as to blast resistance in progressive collapse.
Congress approved the new GSA number, thereby increasing the money available for
construction to more than $43 million. MSA became aware of the added funds early on, and
thereafter, although there was never a formal change to the target number, both parties
proceeded during much of the initial design phase as if approximately $43 million was
available for construction and $35 million was no longer the target. MSA did not request
GSA to formally amend the $35 million number, and GSA issued no document making the
change.

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29. Under the original design schedule, MSA should have completed its final
concept submission within twenty-eight weeks of award. There were extensive delays
created early on by a myriad of matters, including the elimination of a courtroom, changes
in criteria for the Marshals Service, site coordination issues, and the introduction of more
extensive peer reviews of the design. There is no evidence that these delays were the fault
of MSA, which was granted additional performance time by GSA. In fact, in its
counterclaim GSA does not charge MSA for any delay prior to July 2003 (the adjusted date
for providing biddable documents). Instead, GSA measures its escalation claim from July
2003. There is no document which identifies payment to MSA for pre-July 2003 delays.
However, during performance the parties entered into a number of modifications, some of
which dealt with issues that have been noted by MSA as contributing to the initial delays.
30. As one of its contract responsibilities, MSA was required periodically to provide
cost estimates to GSA to assure that the design would be able to yield a building that could
be constructed for the money that was available. As with any design contract, the design was
expected to evolve over time and be fleshed out from the awarded concept. The MSA
estimates were to be a check on the cost effects on price as the design process proceeded its
way out. The contract called for estimates to be submitted with the concept design, as well
as at the development/tentative phase, and at the final working drawing phase. MSA’s
estimate obligation was independent of the ICR check and review.
31. As part of the concept stage, MSA was tasked with developing and delivering
three concepts to GSA. From those, GSA was to select one on which to proceed. On
September 27, 2000, GSA issued its first contract modification, PCO 1, for $75,000, which
called for MSA to perform a pilot design/security study dealing with how to mesh security
and openness concerns as to this project and others. In October 2000, still at the early stages
of concept development, and almost a year before GSA approved MSA’s first formal
submission (the final concept documents), CCS prepared an estimate for MSA which costed
the project below the target threshold. The CCS estimate was turned over to Heery for its
review. On November 21, 2000, Heery provided a letter to Mr. Saviano in which it estimated
that the design would cost about $38.7 million. Heery qualified its review by stating that the
design it reviewed was mostly schematic, with little structural or architectural detail and no
detail as to complexity of design or the overall quality of material. It reported that the square
footage used by CCS was about right and it suggested an annual escalation rate of 3.5% per
year.
32. MSA continued with its concept design through the first half of 2001. According
to Mr. Tinsley, who was putting together the structural design, he saw nothing particularly
complex at that time as to the basic structural framing. He was operating on the basis of the

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96/97 PBS 100 being the standard and thus judged the progressive collapse work on that
basis. He therefore included no blast hardening of the structure or other similar blast
resistance enhancements. At the concept stage, MSA was providing GSA with MSA’s basic
design, layouts, facade, material descriptions, landscaping, and a narrative explaining MSA’s
design intent.
33. In June 2001, Mr. Saviano directed Mr. Honn to no longer follow the 96/97 PBS
100, but rather to use the November 2000 version (2000 PBS 100). He also directed MSA
at a meeting in late June to incorporate the 1997 GSA Security Criteria as a project
requirement. Neither had been part of the original negotiated package and both were being
introduced for the first time. The 2000 PBS 100 introduced several significant changes to
design criteria, primarily requirements for a more expansive progressive collapse standard,
addition of LEED compliance, and assorted added security considerations. The 2000 PBS
100 progressive collapse criteria differed from the earlier version in a number of respects,
with the practical effect being that beams and slabs had to be designed larger, more robust,
and more heavily reinforced. Beams above an area had to effectively span twice the original
distance, as well as support all of the load above the concentrated load in the middle of the
beam. The progressive collapse changes impacted work on MEP tasks, particularly in
affecting the coordination and placement of penetrations through thicker and larger structural
members. Mr. Leber testified that in putting together the initial MEP proposal, he did not
anticipate the degree of coordination with the structural design that he ultimately had to
perform.
34. As to LEED, the 2000 PBS 100 provided, “As a means of evaluating and
measuring our green building achievements, all GSA buildings must be certified through the
Leadership in Energy and Environmental Design (LEED) Green Building Rating System of
the US Green Building Council. Projects are encouraged to exceed basic LEED green
building certification and achieve the LEED Silver Level.” The language as to LEED
materially increased the level and scope of green effort required in the building design. At
the time of pricing, MSA was to design a building that was to incorporate various
sustainability and green measures to the extent practicable. There was no set benchmark and
while we find that a reasonable reading of the contract documents called for MSA to be
reasonably aggressive, those requirements did not call for the project to be driven by
sustainability goals, to require extensive research, or to be anywhere as expansive in
attempting to incorporate green elements. GSA further compounded matters by not only
calling for LEED, but also pushing MSA to comply with LEED silver level status.
35. In late June, in conjunction with GSA directing Mr. Honn to comply with the
newly introduced GSA security criteria, Mr. Saviano sent Mr. Honn a document entitled
“Vulnerability Assessment, GSA Security Design Criteria.” Mr. Honn testified that this was

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the first he had seen that document and that upon his receiving the document from Mr.
Saviano in late June 2001, he recognized that it specified new design criteria, particularly
relating to blast protection. While the document he was provided dealt mostly with perimeter
security, it also did touch on the structure. After reviewing the document, he forwarded it
to Weidlinger. Mr. Tinsley, at Weidlinger, determined that the document contained blast
resistance requirements and then forwarded it to Weidlinger’s blast specialist, Dr. Robert
Smilowitz. GSA claimed in briefing that MSA had seen the above referenced document at
the 1999 meeting with Mr. Safdie. However, GSA provided no witness to corroborate or
establish that.
36. Before addressing Dr. Smilowitz’s reaction, we briefly review the sixteen-page
document Mr. Saviano provided to Mr. Honn at the June 2001 meeting. The document was
a controlled document and one that could only be gotten with the permission of GSA. It was
incomplete, lacked an index, and consisted of excerpts from a larger document. One could
not tell from the sixteen pages what was left out or determine the context of what was
provided. It had some references to Level C security criteria (as to windows, garage area
columns, and structural members in lobbies and other localized areas). It also stated, under
“Stand-Off Distances,” that the preferred design criteria for Level C specifies a twenty-foot
stand-off from all parking, or compensating design measures. It, however, did not say that
Level C was required for this or any courthouse. Moreover, the document provided no
definition of what Level C meant and no qualitative or quantitative criteria as to its
application for the areas with which it was referenced. The document also addressed
progressive collapse, referencing the 96/97 PBS 100 standards. The document stated on the
first page, under “Security Philosophy,” that its primary goal was to save lives and prevent
injury, and its secondary goal was to protect federal buildings, functions, and assets. It
continued that its intent was to take a balanced approach to security, considering cost
effectiveness, acknowledging acceptance of some risk, and recognizing that federal buildings
should not be bunker or fortress-like, but rather, open, accessible, attractive, and
representative of the democratic spirit of the country. It then noted, “Prudent, rather than
excessive, security measures are appropriate in facilities owned by and serving the public.”
On the page showing “Structural Engineering,” the document states that it focuses on
protection and also on managing risk and cost. It then states, “There are three basic
approaches to blast design: loads can be reduced, primarily by increasing stand-off; a facility
can be strengthened; or higher levels of risk can be accepted. The best answer is often a
blend of the three.” Finally, on the same page as the paragraph addressing progressive
collapse, the document contains a paragraph tilted “Explosive Threat.” It states, “Where an
explosive threat, as defined by this document exists, structures shall be designed to resist
blast (B) loads in combination with other loads.” Nothing in the paragraph identifies a
specific blast resistance hardening level or standard required for this or any other facility.

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37. Dr. Smilowitz, who had extensive blast design experience, including with
government projects, was familiar with the whole GSA security criteria document and, as
such, recognized that what had been given Mr. Honn was missing many pages. He knew the
document was a controlled document and one which would have limited distribution. He
asked for a meeting with GSA to receive the full criteria and to find out which options and
which levels of protection the Government wanted to incorporate into the design.
38. On June 21, 2001, GSA hosted a meeting to respond to Dr. Smilowitz’s
concerns. It was attended by Mr. Honn, Mr. Saviano, and Weidlinger’s designers. Mr. Honn
wrote in his minutes:
GSA Security Criteria dated 10/8/97 is the bible for this project;
courthouse is a level “C” Standoff distance was discussed; 20’ is the
goal; we are violating at 3 locations; 20’ is measured from protective
barrier to facade, facade must withstand a 4000# vehicle at 30 MPH; WA
has reports from government with results for tests; 30” high walls are the
standard to withstand impact, although this is subject to interpretation 18” high walls are no good.
If you have a lot of distance between barrier wall and your facade then
sliding distance may provide adequate protection. This [sic] is no
uniformity of decision making on these criteria
The minutes went into detail regarding poundage for bombs at various locations,
addressed hardening the slab above the garage, and dealt with other explosion-related
matters. As a separate matter of discussion, Mr. Honn addressed a GSA contract requirement
(in the original documents) that the courthouse have operable windows. He pointed out that
the need for blast resistance might complicate the situation and noted that there might be a
conflict between sustainability and meeting levels of protection, pointing out that it made no
sense to open a window that contains ballistic glazing, if one can get a clear line of sight into
a room with the window open. MSA, which was less than a month away from providing the
final concept submission to GSA for approval, had now been given significant new
information which was to be incorporated into the design and which previously had not been
identified as design criteria.
39. On June 26, 2001, as a follow up, Dr. Smilowitz prepared a detailed
memorandum for GSA in which he laid out his understanding of what was being required,
suggested alternatives, and asked for direction. He also confirmed Weidlinger’s
understanding that GSA was requiring the courthouse to be designed to Level C criteria. He
wrote that at the June meeting, the parties reviewed the general requirements for physical

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security identified in a seventeen-page document titled “Vulnerability Assessment - GSA
Security Design Criteria” and noted the similarity between that document and the more
comprehensive “GSA Security Design Criteria,” draft revision dated October 8, 1997. The
project specific document (the excerpt provided to Mr. Honn) appeared to be a subset; it
specified the GSA Level C “Medium Level of Protection,” but there were notable omissions
pertaining to quantitative blast analysis and design. Dr. Smilowitz stated:
The GSA Security Design Criteria help define the features of physical
protection that will prevent large-scale injury in the event of a terrorist
explosive event. However, when these criteria are applied without
exception, the cost of physical protection may be significant and the
impact on the architecture may be extreme. When applied judiciously,
the costs may be reduced and the goals of sustainability and design
excellence may be achieved without significantly jeopardizing the safety
of the occupants. WAI [Weidlinger] is prepared to discuss these features
should there be any questions regarding their impact on physical security.
Following this, WAI requests that GSA issue a decision so the design can
proceed on schedule, avoiding costly iterations of redesign and
re-analysis.
40. MSA acceded to incorporate the Level C criteria. Before moving forward,
however, and without going into full detail, some aspects of the complete GSA security
criteria bear mentioning, for they show how much was not provided. First, the complete
document is essentially a guide that provides a menu of security choices to be decided by the
owner for incorporation into a design. The document describes itself as intended to
complement the PBS 100, stating its primary goal to protect, but also to take a balanced
approach, so as to avoid a fortress-like structure. It provides that the design is to look at
prudence rather than excessive protection. It says that assignment of a level is to be based
on risk analysis and that building elements may be assigned separate levels. It identifies five
levels of protection. Level E is the highest and Level A the lowest. While Level C is
described as being a medium level, the difference between its description and that of Level
B is not dramatic. The document states that Level C terrorist protection is for use when the
building is a regional symbol or has significant impact on the Government’s mission, when
its damage or loss will have high consequences, and where there is a verified threat. Level
B is described as being used for a building that is a regional symbol or has an impact on the
Government’s mission, when its damage will have moderate consequences, and when there
is a suspected threat. The difference between B and C is one of degree. At the time of
pricing, GSA either had not made a selection or had simply failed to inform MSA of what
level it wished to use. GSA never explained or addressed why Level C, which existed at the
time of the negotiations, was never cited or highlighted as the intended standard during those

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negotiations. As Dr. Smilowitz testified, the owner always identifies the security
requirements and criteria to be used. Accordingly, he would have expected GSA to have
done that here.
41. Despite suggestions made by Dr. Smilowitz to modify aspects of the protection
standard (so as to reduce costs, complications, and later rework), GSA did not provide a
response. That being said, the changes to the criteria did not immediately impact MSA’s
design effort. In late June, concurrent with the new directions, MSA was at the stage of
providing GSA with the final concept design submittal. That submission was sixty-five
pages, estimated construction at $42,290,364, and contained forty-six drawings (which were
generally not detailed, but rather showed the general appearance and location of the facilities
and some additional features). Because it had been directed by GSA to include the GSA
security criteria, MSA acknowledged that the design would incorporate Level C and other
blast enhancements, as well as meet the LEED and progressive collapse changed
requirements. While this was not shown in the drawings provided for the final concept,
MSA in its narrative told GSA that its design would now provide for concrete walls around
the loading dock and mail room. The shear walls above grade (at Spring Street) would be
“hardened” structurally to resist blast loads in accordance with a Level C threat. MSA
identified similar treatment as to hardening of slabs over parking areas and other locations
and specified hardening of various walls. At this point in the concept stage, the submittal
addressed what was to be done, but had not yet addressed how that was going to be
implemented.
42. At some point after July 17, 2001, GSA issued PCO 4 in the amount of
$197,533. MSA signed it on July 30, 2001, and GSA signed it on September 5, 2001. The
modification involved design costs associated with taking a courtroom out of the project, as
well as included other GSA changes which had required rework by MSA or which had
rendered some of MSA’s earlier work moot. In general, the modification dealt with issues
that had arisen several months before GSA introduced the added security and 2000 PBS 100
criteria. Mr. Mathison described PCO 4 as an epiphany, noting that it marked the point when
MSA first began to realize that MSA’s scope and costs were substantially increasing over
what it had priced for the project. When questioned as to whether the compensation for PCO
4 had covered MSA’s costs, Mr. Mathison commented, “probably not enough.” By this point
the project schedule had slipped badly. Much of the slippage in the project to this point can
be attributed to the revisions reflected in PCO 4. While the use of PCO implies a proposed
change order, in those instances where an agreement was reached, the parties did not change
the designation.
43. In early September 2001, GSA officials began expressing concerns as to whether
the project, as designed, could be built within the budget. In a September 6, 2001, e-mail

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message from Mr. Robert Androkonis (Mr. Saviano’s supervisor) to Mr. Edward Feiner,
GSA’s chief architect (copies to Mr. Saviano and Mr. Malinder), Mr. Androkonis praised the
form of the design, but questioned whether it could be built within the budget. He discussed
a number of concerns ranging from location of offices, to ceiling heights, to curved floor plan
and skylights. He noted that the raised flooring, which he said GSA had committed to, was
not in the design at that time, and stated that the estimate included in MSA’s final concept
submittal had been based on updates to earlier estimates and square footage, not on specifics
of the MSA design. In the last page, he stated that GSA had a terrible history lately of
bidding courthouses and therefore needed to be conservative in the design of the building.
In closing, he stated that it was a lovely building, but “lets [sic] make sure we can build it.”
44. Notwithstanding GSA’s concerns, on September 21, 2001, GSA approved
MSA’s final concept submission. By this point, the job was at seventy weeks rather than the
twenty scheduled. The delays were attributable to a number of factors, including the time
required for peer review, issues concerning site conditions and configuration, changes by the
Marshals Service, deletion of a courtroom, and other matters. Some had been dealt with in
PCO 4. The approved concept continued to include the curvilinear design. Additionally, it
remained a concrete structure, continued to include a glass curtain wall and skylights, and
retained the historic trees. Although GSA has asserted in its briefing that the contractually
referenced U.S. Courts Design Guide explicitly admonishes designers against the use of
curvilinear forms and skylights (as they are considerably more expensive than other options),
there is no evidence that GSA attempted to remove those features from the project. Rather,
evidence established that GSA considered those features to be essential and not subject to
GSA compromise. According to Mr. Mathison, up to the point that the final concept was
approved, MSA was pretty much on budget.
45. In October 2001, the parties exchanged correspondence as to cost concerns and
cost drivers. In an October 15, 2001, memorandum, Mr. Honn emphasized how the effort
to save the historical trees and accommodate the size of the building had fixed the siting of
the structure in relation to surrounding streets. He addressed measures to provide the
required blast protection (given the siting) and raised issues as to setbacks, increasing heights
of walls, adding more bollards, and increasing levels of blast resistance for the building
facade. How these matters would be treated had been under consideration by the Marshals
Service since June, but with no resolution. He also addressed ceiling heights, office sizes,
and access flooring. Regarding the estimated cost of construction, he stated:
Since the previous estimate was based on a similar but larger and more
complicated design, the GSA Project Team, and the CM [construction
manager], Heery International, concurred with the estimate adjustment
method used by the architects and concluded that a separate estimate was

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not warranted. The GSA Project Team, the CM and the architects are in
agreement that the estimate and budget are adequate at this phase of
design. The current revised design and adjustments to the original
estimate comply with the architects base contract and the change order
that reduce the building size and program.
To meet the allocated budget, we expect to strike a balance between
building configurations and finishes. The majority of the exterior facade
is actually pre-cast concrete (not stone), a material that MSA has
historically had a great deal of experience with and success at designing
economically. The CM who will be consulting with industry experts on
critical cost items, will constantly monitor the project cost estimates. The
design team will also be performing value engineering reviews with the
intention of identifying potential project cost reductions should they
prove viable.
46. On October 31, 2001, Mr. Androkonis wrote to Mr. Saviano by email to express
his concerns as to some of the matters raised by Mr. Honn. He addressed the A/E handling
of the trees in relation to meeting setback distances and pointed out that providing blast walls
and strengthening the building’s skin as a substitute for the setbacks would add costs to the
project that were not covered by the budget. He expressed concerns as to the cost impact of
curtain walls and skylights, noting they had been a factor in recent bid busts. He stated that
if the concept was approved, it would be much more difficult to control project costs and, if
the concept was later found to exceed authorized funding, GSA might be left to diminish the
quality of finishes, reduce programmed space and/or eliminate features and functions that
were important to the operation of the courthouse. He then stated, “Therefore, it is my
position, if we can not deliver this concept including requirements such as raised flooring,
security setbacks, blast performance, energy goals, system performance, etc., in an acceptable
fashion, we do not have an acceptable concept.”
47. On the same day, Mr. Feiner also weighed in with an internal document
circulated to various GSA officials, including Mr. Saviano. He prefaced his remarks by
stating that both GSA and the courts considered the design to be excellent. He expressed
cost concerns, saying that the courts and the A/E were adamant about there being a separate
structure (the chambers building) for the judges. He said that once he was assured by the
A/E that it was within budget, GSA did not fight it. He expressed concerns as to meeting
setbacks and acknowledged that raised floors might not be needed for the chambers if there
were cost concerns. He commented briefly as to ceiling heights and security and then said:

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The cost issue CANNOT be ignored. If this concept cannot be delivered
in accordance with the scope, it is time to address the issues that are the
drivers. If it means some rethinking or even redesign, now is the time,
not the day after a bid-bust.
On October 31, 2001, the comments of both Mr. Feiner and Mr. Androkonis were
transmitted by Mr. Saviano to Mr. Mathison.
48. On November 5, 2001, MSA, Cosentini, and GSA personnel held a meeting to
assemble a project team to discuss sustainability goals. LEED compliance was a primary
topic. The agenda shows the parties addressed eighteen separate topics, and reiterated GSA’s
emphasis on meeting a silver goal for the project. This meeting demonstrates that the
incorporation of LEED requirements was just getting underway and that many of the items
were going to require strategies that would involve detailed analysis and study.
49. As MSA progressed through the tentative design phase, it was continually faced
with having to make revisions and accommodations based on incorporating the blast criteria
into the project. In a November 6, 2001, memorandum, MSA agreed to revise its design so
as to create a twenty-foot setback to the facade of the chambers building, the siting of which
just had been confirmed by the Marshals Service. The parties were exchanging information
as to whether the courts would accept any modification to courtroom sizes and whether MSA
would be given the go-ahead to treat some areas as transient (and thus no need for blast
criteria). Questions as to raised flooring were resolved in favor of requiring the raised
flooring.
50. On November 27, 2001, Mr. Saviano commented to Mr. Feiner and Mr.
Androkonis regarding Mr. Honn’s remarks of October 15, 2001. Paraphrasing Mr. Honn,
Mr. Saviano stated that the previous estimate was based on a similar but larger and more
complicated design, the GSA project team and the CM concurred with the estimate
adjustment method used by the architect, a separate estimate was not warranted, and the
budget was adequate at the current phase of design. He reiterated Mr. Honn’s assurance that
the CM would be consulting with industry experts on critical cost items and would constantly
monitor the project cost estimates, and that MSA would be active as to value engineering.
51. As the design effort progressed into the latter part of 2001 and into early 2002,
MSA continued to face issues as to what was to be included and what could be eliminated
or changed, particularly in relation to protective design elements and to coordinating the
LEED standards. This was illustrated in a December 12, 2001, memorandum from Dr.
Smilowitz to GSA in which he addressed concerns regarding meshing GSA’s requirement
to design window frames to Level C, with the Marshals Service’s ballistic requirements as

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to the glass. MSA was pressing to use hurricane level windows in its design (which
contractors were familiar with), as opposed to the untested design combination required by
GSA. In addition, he addressed issues involving providing window hardware for operable
windows that would still allow the windows to meet both blast and ballistic criteria. Despite
offering various recommendations, MSA received no timely response and matters continued
under review by GSA and the Marshals Service well into the end of 2002. Ultimately, some
of the recommendations made by Dr. Smilowitz were essentially accepted, although not until
well into the redesign period.
52. On February 5, 2002, MSA sent a memorandum to Mr. Saviano titled
“Additional Cost Estimates.” In the memorandum, MSA described (on a two-page
spreadsheet) additional construction and design effort costs. For each designated item, MSA
placed on the spreadsheet either an estimate of construction costs or a question mark as to
those anticipated costs. Mr. Honn explained that it had become apparent to MSA that the
firm had been doing a lot of work that might have implications as to the construction costs,
so he provided GSA construction cost numbers for that work. In addition, as the last item
in each category, MSA placed a line for additional professional fees associated with the
work. At that point, MSA put in question marks as to the amount of the added anticipated
design costs for each category. The spreadsheet was broken down into five categories:
perimeter security; office space and prisoner delivery; courts; U.S. attorneys; and
sustainability. Each had subcategories, with perimeter security showing twenty-one items.
The perimeter security items did not focus on blast enhancements, but rather, focused on
items such as security fencing and gates, bollards, and how to deal with sixty historic style
houses. The spreadsheet included seven items under sustainability, including a major cost
item for substituting a geothermal system for conventional heating, ventilation, and air
conditioning (HVAC), including changes to air handlers and ductwork. A number of the
items listed in the spreadsheet represented deviations or changes from what MSA had shown
in the final concept that GSA had approved in September 2001. In February 2002, MSA was
in the tentative design phase, a point where its design drawings were still generally schematic
and structural calculations and equipment placement had just begun.
53. Mr. Saviano responded on February 7, 2002, and told Mr. Honn that the design
line items should come out. He said, “[T]he GSA Cover inserts a pro rata design cost
automatically.” MSA understood the direction to mean that MSA did not need to ask for
additional design fees on similar requests, but rather, when an item was included, MSA
would be compensated through a percentage application. MSA complied with Mr. Saviano’s
directive. When MSA sent a revised version to Mr. Saviano, several weeks later, it
specifically did not include a line or space for professional fees. The March 7 submission
showed $4,577,945 for the construction. The sustainability category accounted for
$1,753,500 of the increased costs. While many of the items were not ultimately included,

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each involved some additional study or design effort by MSA. The treatment of windows
continued to be an issue through February and March 2002.
54. On March 31, 2002, MSA submitted a set of tentative design drawings to GSA.
It was at this stage that Weidlinger had begun to size its columns and beams and Cosentini
was zeroing in on equipment and making sure it could fit. At completion of the tentative
design, the design was to have progressed to the point where all major building systems and
components were represented on the design drawings. Because it was added later, the
tentative drawings did not have a geothermal component. The geothermal change, although
substantial, is not an issue as to the design claim. MSA was compensated for its efforts in
changing to the geothermal system in PCO 6.
55. On April 26, 2002, F. Joseph Moravec, GSA’s Commissioner of Public Buidling
Service, issued a memorandum for assistant regional administrators. The subject was
“Implementation of the Interagency Security Committee (ISC) Design Criteria Regarding
Site Selection.” Although not specific to this project, the memorandum reflects the mind-set
resulting from the September 11, 2001, World Trade Center attacks. The memorandum
conveys a clear intention on the part of GSA to provide measures in its site selection for
federal facilities to protect the federal workforce and visitors. While GSA had protection
concerns prior to the Trade Center attack (specifically the bombing of the Federal Building
in Oklahoma City in 1995), concerns took on even greater importance after September 11th.

56. On May 16, 2002, Heery provided a construction estimate of $41,365,898 for the
tentative design. Thereafter, on June 14, 2002, Heery prepared an updated estimate, this time
at $45,483,007. The latter was based on the tentative design submittal from MSA dated
March 31, 2002. In a July 3, 2002, memorandum from Mr. Honn to Mr. Saviano, Mr. Honn
estimated construction costs at $43,460,593 for the building and $3,081,350 for site work.
57. At the end of July 2002, GSA approved the findings and recommendations of
the special security report that had been ordered in PCO 1, at the start of the design. MSA
charges in its claim that GSA directed it to include aspects of the report into the design. GSA
denies giving such direction. GSA charges that MSA incorporated provisions on its own.
Neither party provided any specifics, and we do not find the security report itself played a
major role. By the time the security report was issued, the GSA changes as to progressive
collapse, hardening, and LEED were already imbedded as contract requirements. At that
point, MSA was designing to Level C and GSA was holding MSA’s feet to the fire as to
LEED efforts.

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58. In August 2002, CCS provided GSA with the 50% construction documents
estimate. CCS based the estimate on drawings and specifications dated July 12, 2002. The
next step was preparation of the 95% drawings, with the final step being the conversion of
the 95% drawings into final drawings.
59. The parties continued to discuss MSA’s allegations of extra work. In an e-mail
message dated November 5, 2002, from Mr. Saviano to Heery, with a copy provided to Mr.
Honn, Mr. Saviano identified several design items as being above normal project costs and
stated that work associated with the items might be compensable to MSA. The items were
(1) landscaping, sidewalks, exterior and street lighting, and employee parking lot, (2)
geothermal system and up-charges from conventional HVAC, architectural, and mechanical
sustainability features, (3) electrical utility related items, and (4) reinforced architectural
perimeter features, including walls, bollards, security benches, and monumental vehicular
stops at the main entrance. A number of these items later became the subject of PCO 6,
which was executed in late November 2003.
60. A December 6, 2002, internal memorandum from court officials identified
several items that could be argued as not having been in the prospectus budget. Among them
were remediation costs due to poor soil conditions, $150,000; costs of required progressive
collapse higher than the benchmark, $160,000; and more costly materials, landscape, and
upgraded bollards because of the building’s location in a historic district. The memorandum
then discussed value engineering and noted that the project had been delayed for eighteen
months by GSA Central Office’s decision to eliminate one courtroom. It said that Heery had
estimated those costs at $2,240,000.
61. On December 16, 2002, Mr. Saviano sent an e-mail message to Mr. Honn titled
“Identification of Design Items Above Contract Criteria,” in which he stated:
Here is what I have come up with for Above Contract Criteria.
ISC Security Design criteria and USCOE protecting Building and
their occupants from airborne hazards look like they were added
after the initial design contract by our security team. Moving Air
Intakes to roof, if attributable to the added criteria, has a major cost
impact that MSA should provide a ballpark cost for.
Facilities Standards at time of contract was PBS-PQ-100.1 dated
12/23/93 and GSA Issued new Facilities Standards Revised 11/00
for inclusion however GSA’s understanding was that new standards
were far less prescriptive and should not add any cost – However,

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MSA and consultants such as Cosentini may and should indicate if
they can identify any additional cost items based on the updated
standards that were not included in the original contract version.
Please let me know if you have any added cost related to the criteria
changes.
62. MSA wrote to Mr. Saviano on December 27, 2002, providing a list of items
which MSA described as scope increases (and thus cost increases) from the 1996 PDS.
Among the items included was having to reinforce concrete to meet progressive collapse and
to meet other enhanced blast criteria, various LEED-related items, intake air at the roof, and
sitework (as affected to accommodate security). While not all items were costed for
construction impact, those items for which MSA did include a cost totaled $2,315,000 in
estimated added construction costs. MSA did not provide a figure for added design costs.
63. In February 2003, Mr. Honn was informed by GSA that “GSA Washington”
would not permit the project to go out for construction bids if the estimate based on 95%
complete drawings exceeded $45 million. Mr. Honn then prepared a memorandum to MSA
and consultants, titled “Cost Control Strategy.” There he said, “The basic strategy then, is
to remove some items from the bidding set and add them back during the contract negotiation
phase.” At the hearing, he acknowledged that removing elements from a design to make an
estimate fit a specific number was “unusual.” MSA also made a wholesale 1% reduction in
material. Mr. Orens, when asked, could not explain the basis of the reduction. What is
evident is that in February 2003, MSA and GSA knew that in order for the project to go out
for bids, MSA would have to get to the $45 million number.
64. CCS prepared an estimate dated March 19, 2003, which Mr. Mathison
transmitted to GSA under cover letter of April 4, 2003. Mr. Mathison identified it as the
95% cost estimate, priced at $44,992,850.71, which is 99.984% of GSA’s limit for the
project. Heery provided a review of the estimate to GSA. Both the CCS estimate and Heery
review showed $45 million plus or minus. On March 14, 2003, a few days before CCS
finalized its March 19 estimate to MSA, GSA and MSA held a meeting to finalize costs.
GSA contends that at that meeting, Mr. Honn disparaged the capabilities of CCS and showed
a lack of confidence in the CCS estimate. More specifically, GSA points out that Mr. Honn
wrote “HA” next to a comment attributed to CCS and having to do with CCS due diligence
in the preparation of the construction estimate. The word “HA” was placed on a sheet next
to the wording, “This cost estimate represents our opinion of probable construction costs for
this project. We have exercised due professional diligence in the preparation of this estimate.
Since we have no control over final market selection, bidding strategies and market
conditions, no guarantee is given or implied with this estimate. This estimate assumes a

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normal market condition.” It should be noted that the quoted language, which is essentially
a limited disclaimer, appeared on all CCS estimates.
65. In addition to Mr. Honn’s comment noted above, GSA charges that Mr.
Mathison presented testimony which calls into question the completeness and adequacy of
the work of CCS. GSA charges that Mr. Mathison testified that MSA did not expect CCS,
in preparing construction estimates, to interpret the things that the contractors had to interpret
in preparing bids. GSA further charges that he admitted that MSA did not direct CCS to
provide blast resistance in any of its estimates. For purposes of context, Mr. Mathison (later
in that same line of testimony) stated that he expected CCS to understand contractor reactions
to the design and was sure CCS made judgments as to that. He further stated that blast
resistance was part of the design MSA was required to prepare and as such would have been
considered by CCS in its estimating.
66. GSA relied on the CCS estimate with an assumption that it had been prepared
using proper estimating techniques. MSA, in defending the adequacy of the CCS estimate,
cites to the fact that Heery performed a review of CCS’s estimate for GSA and the Heery
estimate and CCS estimates were in line. While that is correct to a point, as we address later,
Heery performed that review while operating with significant limitations and thus its results
are not particularly probative as a baseline for purposes of buttressing the CCS estimate.
67. As had been the case with other stages, the period up to the 95% complete
contract documents was extended for a significant period by GSA. MSA continued to
receive comments on a rolling basis until receiving final approval of the 95% design in July
2003. MSA has stated that while the delays for this as well as earlier stages did not have a
day-for-day effect on its operations (for MSA continued to work on the design), the delays
at times resulted in MSA having to go back and modify items that it had already incorporated
into the design. GSA comments, even if late, had to be incorporated into the design. At no
time during the design period did GSA issue MSA a cure notice or blame MSA for any delay
in performance.
68. On May 22, 2003, Mr. Mathison wrote to Mr. Menzies and Mr. Saviano
regarding charges for additional services that MSA believed it was being required to perform
on this contract, some of which had been part of discussions in November 2002. Among the
more significant charges being sought were approximately $63,471.76 for landscape
architectural services; $51,468.41 for additional commissioning and sustainability services;
$80,347.02 for additional geothermal design services; $177,000 for extended CM design
phase services; $166,035 for above-standard design services for the courts, U.S. Marshals
Service, and U.S. attorneys; and additional funds for Heery of $28,600 for estimate review
and $72,600 for coordination review. (While Heery had no contractual obligation to MSA,

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GSA was nevertheless funding Heery through the MSA contract.) MSA also sought
$14,559.48 for revisions due to revised PBS 100 criteria. In summary, MSA identified
sixteen items at a cost of $863,460.39.
69. On July 15, 2003, GSA issued the complete set of MSA contract documents as
a bid set to potential bidders. Bids were opened on August 15, 2003. The low bid was
$65,183,000 with five bids closely grouped. Each potential contractor had been
pre-qualified. The concrete costs in the low bid exceeded the 95% estimate by $10,162,408.
The concrete costs of $650 to $750 per cubic yard reflected in the bids were more than
double the normal prices for concrete in major markets such as Boston. Doors and windows
exceeded the 95% estimate by $3,824,594. The addition of the geothermal system increased
the construction costs by almost two million dollars. The construction costs projected by
CCS’s 95% estimate indicated a square foot price of $272.68. Bids came in between $400
and $429 per square foot.
70. The design claim centers on the reasonableness of the parties’ design
expectations and whether GSA fundamentally changed the design criteria through
introduction of the 2000 PBS 100 and the GSA security criteria, and whether GSA failed to
meet its promises as to streamlining and cooperation. GSA acknowledges that the introduced
documents were neither cited in the original contract nor directly incorporated by reference.
However, GSA asserts that the level of effort and criteria to be used for this project was or
should have been evident to MSA from the contract documents provided. GSA also asserts
that, to the extent MSA had to perform beyond what was set out in the contract, that effort
fell into the normal “give and take” that should have been anticipated on a design contract.
GSA further denies promises of streamlining and asserts that much of MSA’s added work
was due to MSA incorporating into the project on its own various features of the PCO 1
security study. MSA says the changes made by the criteria added by GSA were substantial
and their combination turned the design project into a research and development project for
balancing openness, security, blast resistance, and LEED criteria. MSA charged this was a
combination that no one had encountered before and which had not been specified in the
design contract documents.
71. We set out here additional evidence relating to the above arguments. Mr.
Mathison acknowledged that the PDS “Security Concept” directed the A/E to include
exterior “passive concepts,” such as setback and physical barriers, as well as active concepts,
such as vehicle access control, exterior lights, and closed circuit television (CCTV) systems.
He said it was reasonable for MSA to understand the references in the PDS to bollards and
other physical barriers to not necessarily be related to specific concerns as to blast
enhancements in the structural elements of the building. Rather, he said those items could
be related to preventing a truck from hitting a loading dock, or preventing a vehicle from

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parking on a lawn or accessing a pedestrian-only area. He testified that the blast criteria
required by GSA was well outside the scope of what MSA priced in its design.
72. As to the physical protection measures set out in the PDS, MSA asserts, “Even
when they do serve a function related to security of the building, this does not necessarily
[mean] an explosion.” Mr. Mathison said he interpreted “security” for the contract as being
people-related and focused on electronic security, an interpretation that he considered to be
consistent with the documents referenced in the contract and consistent with his prior
experience. At one point, he described his understanding of blast requirements to be
preventing damage caused by someone carrying a backpack. In responding in its brief to
GSA’s charge that Mr. Mathison was familiar with the use of a truck bomb (as occurred in
Oklahoma City), MSA characterized that point as irrelevant, asserting that security criteria
for a building are to be selected by the owner. MSA continued, “It is not the task of the
architect to speculate as to what criteria the owner wants, and to establish levels of
protection.” With that said, Mr. Mathison did acknowledge that he saw references in the
contract documents to MSA having to provide a “security blast consultant” and understood
that reference to address blast protection. He, however, then emphasized that the blast
consultant provision did not assign any specific level of blast resistance.
73. Regarding the inclusion of blast design elements, Mr. Tinsley testified that the
original contract documents did not require blast resistance for the building structure and
outer walls, and at the time the contract was signed, the 96/97 PBS 100 was in effect. He
said that document had no reference to blast protection for the structure of the building. He
acknowledged that the 96/97 PBS 100 did require progressive collapse protection (which
Weidlinger priced in), but pointed out that progressive collapse and blast resistance are two
different concepts. Each requires a separate analysis and a blast load may not necessarily
cause a collapse, though it could. Progressive collapse, as expressed in the PDS that
Weidlinger used for pricing the design, did not call for hardening of the exterior structure or
designing the facade to be blast resistant.
74. Mr. Mathison, Mr. Honn, and Mr. Leber testified that neither the PSS, the PDS,
nor the contract called for the building to be LEED certified, nor did the GSA documents
include many of the LEED requirements ultimately imposed. LEED certification is a process
of awarding points for various “green” components. The more or higher value components
that are included, the higher the point total. GSA contends that even though LEED was not
mentioned, the various “green” requirements that constitute LEED were identified. GSA,
however, has failed to identify sufficient specifics. As pointed out by MSA, the earlier PBS
100’s had referenced ASHRAE (American Society of Heating, Refrigerating and Air
Conditioning Engineers) 90.1 Energy Efficient Design of New Buildings. In contrast, the
2000 PBS provided “GSA’s sustainability objective for LEED certification will likely be

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associated with trying to beat ASHRAE 90.1 energy performance by defined percentage
levels.”
75. Mr. Tinsley testified that the most significant impact on Weidlinger’s design
effort could be attributed to meeting the Level C standard. As applied by GSA, that meant
that the entire courthouse, including the facade and building structure, had to be blast
resistant and, therefore, more robust. He said that the perimeter of the building facade
needed to be strengthened to resist the blast pressures from the street threat. Therefore, all
perimeter concrete had to be designed for blast resistence. He stated that as a consequence
of the Level C requirement, he had to calculate and address the distribution of loads to
various features such as windows, concrete walls, precast, and floor slabs. He identified
walls with windows as the most complex and difficult, noting that the already complex
glazing system for the windows required substantial coordination with structural engineers.
Normally such coordination would be limited, but here, however, due to the hardening and
blast requirements, the window system was required to transfer blast loads back to the
concrete structure. The requirement for operable windows that met LEED standards further
complicated matters, requiring window latches, insulation, and other treatments to be
designed for a Level C standard. In addition, the imposition of the Level C standard
significantly increased the number of design hours incurred because of the complexities of
designing blast resistence elements into a building with varying floor levels, rather than a
building with flat slabs. Shear walls that would otherwise have been designed to resist lateral
and vertical load now had to be designed to resist blast loads as well. Coordination with the
MEP designer was affected as changes impacted vertical penetration, as well as penetrations
through the exterior. Even the geothermal system had an impact on Weidlinger, as it
interfered with the design of underslab drainage and required coordination with the MEP
designer and MSA. MSA, as the primary designer, had to be involved in all of these matters.
It particularly spent significant time in dealing with achieving Level C compliance for the
window design. Various MSA witnesses testified that much of the design became a research
and development project, attempting to figure out how to mesh blast protection, ballistic, and
other security issues, with the GSA demand that LEED compliance also be met. GSA
presented no credible evidence to challenge this testimony.
76. Mr. Leber stated that part of the additional time Cosentini spent on the MEP
design was due to fact that the LEED concept was new at the time. Mr. Fletcher confirmed
that LEED was evolving. Mr. Leber testified that LEED introduced multiple additional
considerations, such as energy optimization, green power, irrigation reduction, alternative
wastewater technology, and low emitting material, all of which he had to look at as part of
the project. Mr. Leber said that due to LEED, Cosentini was required to assist the
government LEED consultant in researching the feasibility of virtually all available LEED
points, as well as additional post-sustainability items that GSA requested. MSA and

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Cosentini were also required to investigate the use of multiple fuel source systems with a
separate but similar system for the U.S. Marshals Service space, green building power
sources, fuel cells, photovoltaic arrays, solar collectors, waterless urinals, and grey water for
irrigation. After MSA investigated and priced the systems described above, GSA decided
all were unaffordable, and they were eliminated from the project.
77. Another major change introduced by the 2000 PBS 100 was a requirement to
move air intakes from a lower level (as planned) onto the roof. The 2000 PBS required that
in buildings four stories or higher, air intakes had to be located at the fourth floor or higher.
This was a security measure to protect a building from someone introducing contaminants
through the ductwork. Additionally, the 2000 PBS added a protection requirement for
utilities located within fifty feet from a loading dock, as well as for entrances and parking.
Finally, the 2000 PBS required that utilities be concealed and blast protected. As noted in
Finding of Fact 61, Mr. Saviano acknowledged that the move of the intakes to the roof
constituted a change. MSA was never paid for that extra design effort.
78. To support its assertion that the original contract documents adequately and
accurately conveyed the GSA requirements as to LEED and security measures, GSA cited
various provisions in the PDS, and particularly the requirements for bollards and other
protective features to protect the building against “ballistic or blast attack.” It also cites the
requirement for a blast consultant; the fact that Mr. Mathison testified he was familiar with
the use of trucks to deliver bombs to a federal buildings; and a requirement for twenty-foot
setbacks, all of which GSA said should have put MSA on notice that the design required
enhanced blast protection. Additionally, GSA repeatedly emphasized that security and the
protective items were set out as “Objective No. 1,” citing a listing in the PDS of goals and
objectives for the project. As pointed out earlier, “Objective No. 1” was simply the first item
in a list, a list that was not identified as being in any priority order. It provides little else As
to LEED, GSA essentially relies upon language in the PDS which provided that the
successful designer would be expected to make use of green building techniques..
79. In its brief, GSA charges that many of the changes asserted by MSA were the
result of MSA incorporating results of the PCO 1 security study into the design on its own
and without consulting with GSA. GSA does not provide details. More importantly, the
study was not completed until July 2002 and the directions as to blast, progressive collapse,
and LEED were all delivered in the summer of 2001. GSA did attempt, through
Mr. Fletcher, to equate the information provided in the initial contract with the requirements
for LEED compliance. His testimony lacked specificity. Moreover, in other testimony
regarding building commissioning, Mr. Fletcher conceded that MSA was owed some
additional money for the LEED design. He also acknowledged that LEED was in a process
of migration and flux at the time. As to blast enhancement, his testimony was conclusory and

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without detail. He relied heavily on the provision of the contract which advised MSA of
intended meetings after award as to security. He appeared to conclude that because GSA had
identified in the contract that there would be future meetings to address security concerns,
MSA was responsible for designing, without any cost adjustment, whatever came out of
those meetings. While the reference to future meetings could be read as an indicator of some
anticipated alterations, nothing in the contract suggested fundamental changes to the project’s
scope. Finally, Mr. Fletcher acknowledged that the progressive collapse requirement also
evolved during the life of the design contract. He recognized that changes as to progressive
collapse requirements warranted some price adjustment.
80. One final matter before addressing the redesign phase. The contracting officer,
Mr. Menzies was questioned by GSA counsel regarding MSA’s claim for added costs due
to changes in the design. Mr. Menzies testified that he did not know details about MSA’s
claim for having to perform added work until the matter came to trial. When asked by the
Board to clarify, pointing out that Mr. Menzies had issued a final decision in 2009 and thus
had to have know something by then, Mr. Menzies testified that he first learned of MSA’s
allegations of a changed scope of work at the time he received REAs on each item. In later
testimony he said he first learned of the claim in 2009; however, that is inconsistent with his
having received the REAs in 2008. As to the effect of his knowing when he did and its
impact on GSA, he provided testimony speculating that had he known of MSA incurring
additional design costs, it was possible that Congress may not have been willing to pay and
could have killed the project. Finally we note this last item. When asked (in context of
design claim items) if Mr. Saviano ever informed him that there was a likelihood that MSA
would be asserting a claim for additional compensation relating to the design, Mr. Menzies
stated, “I don’t believe so, no.” When asked if anyone from GSA informed him, he again
said no.
Bidding/Redesign Phase
81. Construction bids were opened in August 2003, and they dramatically exceeded
the estimated pricing. In order to salvage the process, GSA convened a meeting in early
September 2003, which included MSA and various bidders. The meeting was an attempt to
identify why there was such a divergence between the bids and the estimate. One of the
participating bidders, Clark Construction, cited a number of reasons that contributed to the
pricing of its bid, including that the size of the site impacted the ability to stockpile backfill;
the geothermal feature affected schedules between site excavation and the start of
foundations; there were a limited number of concrete subcontractors in the northeast capable
of constructing a building of this nature; and there were few available subcontractors. Clark
highlighted that there was less competitive bidding as to glass and glazing, concrete,
elevators, and HVAC, with the latter two due to qualification limitations. Clark stated that

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using metric measurements had very little effect on its cost and that labor rates in Springfield
and Boston were about the same. Clark pointed out that the extensive amount of perimeter
concrete walls resulted in an inordinately high ratio of vertical to horizontal concrete in the
building, a situation that invariably increases costs. In describing what it considered to be
fundamentally different on this project as opposed to other courthouses, Clark identified
building size and configuration, the design for blast resistance, and the LEED certification
as elements that affected its bid price.
82. The record contains a number of other comments and findings as to the reasons
for the high pricing. In a September 11, 2003, e-mail message, Mr. Moravec, GSA Public
Building Service Commissioner, addressed a conversation with Heery in which Heery
reported that several potential contractors said that the job was very intricate, detailed, and
high quality, and that they bid accordingly. Mr. Morovec’s e-mail message highlighted the
following factors to explain the overrun: the structure (based on higher post 9/11 security
standards), LEED features, scope creep, and finishes. He criticized Heery’s role and
acknowledged the irregular set up with Heery as the CM. He focused on the fact that Heery
had not been operating with a contract, even though it had been involved on the project since
1999, and concluded, “This is a highly unusual and irregular CM relationship, to say the
least, and I would be interested to know why we have proceeded in this manner.” He then
conceded that he did not see how GSA could hold Heery responsible, given the fact that
Heery had not been asked or paid for its normal services.
83. On September 17, 2003, in an e-mail message from Mr. Androkonis to various
other GSA officials, Mr. Androkonis described the plan for going ahead. He said GSA
would select one of the five contractors who bid the project and pay the firm a small fee to
work with GSA and the A/E to bring the project within budget. If that would not work, he
would direct the A/E to redesign on the A/E’s dime. In an e-mail message of
October 6, 2003, Mr. Moravec again questioned how the bid bust could have happened. He
stated that the region had two years to raise the alarm as to what the actual costs of the
designed project might turn out to be. He noted the gross mis-estimate of the actual cost to
construct and said the blame was neither MSA’s nor Heery’s responsibility. He said it falls
on the region, as “[w]e’re supposed to be a professional development organization. A bid
bust of this magnitude does not, frankly, inspire confidence.”
84. In a memorandum to Mr. Saviano, dated October 16, 2003, Mr. Mastroyin
provided his take on the bid bust. He first stated that GSA, in preparing its in-house
comparative estimate, was aware of scope increases in general conditions, security, and
sustainability relative to comparable courthouse projects. He explained that to account for
the added criteria, the project was priced at 20% greater, stating that GSA assumed the 20%
differential and favorable market conditions would compensate for the significant criteria

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additions. He said that GSA also relied on favorable estimates from the A/E and CM. Under
the subheading “GSA Criteria Loading in General Conditions,” he listed a number of factors
which he understood contributed to the cost, such as pre-qualifying of general contractors
and selected subcontractors, LEED commissioning, LEED construction, construction
excellence, construction and document security, electrical supply-side security, mechanical
coordination, protection of existing historic trees, inclusion of full geothermal system, site
geometry and size. He identified those as in addition to costs associated with security
hardening, blast, and barrier requirements that he cited as above standard. He also noted that,
in addition to the price for concrete being more than double, another item driving costs was
the curtain wall envelope including the blast criteria, which “strongly influenced the decision
to utilize a hollow metal system that results in extremely limited competition.”
85. Heery formally provided its take in a letter of October 21, 2003. It said it had
been tasked with performing a review of the CCS estimate prior to the bidding. It explained
that a review of a cost estimate addresses items within the cost estimate itself, i.e., unit prices,
items missing or misinterpreted, computational errors, and so forth. It continued that a
detailed cost estimate, which Heery emphasized it did not perform, would be based upon the
plans and specifications and would entail both quantitative metrics, including material
takeoffs and specific systems, as well as a variety of other aspects influencing costs. Heery
noted that those areas would include items such as the use of proprietary specifications, the
impact that the construction details and schedule requirements have on means and methods,
the availability of specified material,and so forth. Heery concluded that the items, which it
described as those important factors, were beyond the scope of Heery’s review (what GSA
was paying for).
86. In the letter, Heery, relying on information from the September meeting with
bidders, addressed some of the differences between the 95% estimate and received bids.
Heery observed that all bidders appeared to price the same project, all indicated that the
construction documents were clear in intent, and all understood the architect’s desired result.
Heery listed five areas with significant deviation from the 95% cost estimate, which alone
accounted for $20.4 million. Of the five, the concrete variance of approximately $10 million
was the single greatest item. Heery noted that the concrete variation occurred in both precast
and cast-in-place concrete and that some of bidders pointed out that the required quantity of
reinforcing steel per cubic yard was significantly higher than would normally be expected.
It appeared that the complexity of the cast-in-place concrete formwork, installation of the
large quantity of reinforcing steel, and placement of concrete had a much greater impact on
costs than anticipated.
87. Heery also identified the following items as driving costs: variations in the slab
elevations due to the requirement of raised flooring, large floor-to-floor dimensions, perfect

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rough opening details in exterior cast-in-place concrete walls, large quantities of vertical
concrete, and the extensive use of architectural concrete in the basement and garage area.
Some bidders indicated they did not read much flexibility into the specifications with respect
to use of larger precast panels. Heery concluded that some of the unanticipated structural
costs might be directly attributed to the interpretation and/or application of the new blast and
progressive collapse criteria, as well as the final detailing of the building components. It
recommended that GSA look at the performance of the double exterior wall assembly of the
exterior cast-in-place concrete wall and precast concrete panels, as well as the associated
structural connection detailing, in an attempt to achieve better efficiency in pricing. Heery
noted that it had researched recent bid results for any federal courthouse project that had met
the new structural design criteria, but it had been unable to identify any project that met the
same criteria established for the Springfield courthouse. It thus concluded that it could not
determine if further courthouse projects would incur similar costs. In addressing doors and
windows, it pointed out that there were issues as to the exterior curtain wall system being
restrictive due to a single source of certain system components. As such, that specification
did not allow for similar systems, and thus prevented competition. Heery commented that
the design was created under federal blast criteria and concluded the criteria did cause
significant cost impacts. Finally Heery cited as additional factors, the geothermal
requirement, the staging involving the trees, and LEED requirements.
88. In its letter, Heery also discussed in detail its tentative design cost estimate. It
stated its cost estimate was developed during the months of April and May 2002 and
consisted of take offs, system analysis, and confirmation of unit prices of various building
systems. Heery stated that the tentative design phase is similar to the traditional American
Institute of Architects (AIA) design development phase. At that point, the documents
consisted of 345 architectural and seventeen structural drawings. There were also another
eighty-five assorted drawings. From an architectural and structural point of view, the project
scope was delineated in plans and elevations; however, there were few details explaining the
complexity of the structure or of the architecture at that point. The MEP drawing also was
not particularly detailed. A 10% contingency was included at that stage for items that had
not been included or anticipated in the design documents.
89. Heery then reviewed its role as to the 50% and 95% CCS cost estimates. In
summarizing both, it stated:
Significant variation in pricing from the cost estimate might be associated with
incorrect quantity take offs or variation in the anticipated systems performance
from that ultimately specified in the final construction documents. The complexity
of the project could have been under-estimated by CCS in their cost assumptions,
especially in the areas of progressive collapse and blast criteria. Also, the final

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interpretation of the unique design criteria by vendors and subcontractors could
have had a much larger impact than anticipated for a number of reasons or could
have been misinterpreted and resulted in a much higher cost for a system than
intended.
Heery stated that its cost estimating scope of work during the contract design phase
was limited to reviewing the estimates prepared by CCS. It stated that a review of a cost
estimate addresses items within the cost estimate, such as unit prices, items missing or
misinterpreted, and computational errors.
90. Mr. Malinder attributed the high concrete costs to MSA’s decision to design a
curvilinear concrete building. He said that because of the curvilinear nature of the building,
none of the concrete forms used in the initial design’s cast-in-place concrete system would
be reusable; all would be custom made. He stated that due to the scale of the building, there
was actually down time when an idle contractor would have to wait for concrete to cure, prior
to adding more weight to it. He testified that the cost of concrete form work is primarily
driven by labor, not material, and that MSA’s election to incorporate the trees into the design
further increased costs of construction. He stated that the presence of the trees required
multiple relocations of cranes. He also attributed the high bids to other design features, such
as quality of finishes inside the courthouse and a curtain wall, which he said was not a
program requirement. MSA did not present substantive evidence contradicting
Mr. Malinder’s testimony as to the impact on costs due to accommodating the shape of the
building. MSA did argue that to the extent the shape and trees contributed to the added cost,
GSA had equal responsibility, as GSA approved them as program requirements. MSA also
identified a number of items which were independent of the items noted by Mr. Malinder,
such as the hardened structure, which MSA asserted contributed to the overall bid bust and
spe

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/agency%3Acbca%3Ad9eef465499567ee. Public record. Not legal advice.