GSC Construction, Inc.

ARMED SERVICES BOARD OF CONTRACT APPEALS

Appeals of -- )
)
GSC Construction, Inc. ) ASBCA Nos. 59402, 59601
)
Under Contract No. W9126G-11-D-0061 )

APPEARANCES FOR THE APPELLANT: Karl Dix, Jr., Esq.
Lochlin B. Samples, Esq.
Douglas L. Tabeling, Esq.
Smith, Currie & Hancock LLP
Atlanta, GA

APPEARANCES FOR THE GOVERNMENT: Michael P. Goodman, Esq.
Engineer Chief Trial Attorney
Stephanie R. Darr, Esq.
Lauren M. Williams, Esq.
Keith J. Klein, Esq.
Engineer Trial Attorneys
U.S. Army Engineer District, Tulsa

OPINION BY ADMINISTRATIVE JUDGE O’CONNELL

These appeals arise from a construction project at Fort Sill, Oklahoma.
Appellant, GSC Construction, Inc. (GSC), challenges the contracting officer’s default
termination of the contract. It contends it is entitled to time extensions and reversal of
the default termination, as well as additional money. The challenge to the default
termination is before the Board in ASBCA No. 59402 and the delay claims in ASBCA
No. 59601.

The Board conducted a 10-day hearing in Atlanta, GA, at which Judge McIlmail
presided. The Board denies the appeals. In accordance with the Board's internal
operating procedures, neither this opinion nor the concurrence in result has precedential
value except for those portions of the opinion in which we all explicitly agree.
 FINDINGS OF FACTS

1. The above referenced contract is a multiple award task order contract
(MATOC) for various types of warehouses in areas west of the Mississippi River,
awarded by the U.S. Army Corps of Engineers (Corps) on September 15, 2011 (R4,
tab 28n at 1889-91). The MATOC contained various clauses, including Federal
Acquisition Regulation (FAR) 52.249-10, DEFAULT (FIXED-PRICE
CONSTRUCTION) (APR 1984) and FAR 52.236-21, SPECIFICATIONS AND
DRAWINGS FOR CONSTRUCTION (FEB 1997) (R4, tab 28n at 1897-98).

2. The dispute arises from MATOC task order DS01 awarded on July 13, 2012,
which required GSC to design and build two supply support activity (SSA) warehouses
(referred to as the 100th and the 168th warehouses) and two associated bulk storage
buildings (the SSA Warehouse project) (R4, tab 9a at 1, 6, 8-12, tab 9g at 1808).

3. The task order required completion of the project within 495 days of the
September 26, 2012, notice to proceed, or by February 3, 2014 (R4, tab 9a at 698;
tab 10). It is undisputed that GSC did not complete the work by that date (Jt. Stip. ¶ 14).

4. Contracting Officer (CO) Charles Peterson issued a show cause notice on
January 16, 2014, in which he contended, among other things that GSC was 145 days
behind its schedule and stated that he was considering termination of the contract for
default (R4, tab 8). GSC, through its president, Locke McKnight, responded on
January 28, 2014, citing various delays that he contended were not GSC’s fault
totaling 156 days, but stating that he was “confident” it could complete the project by
June 9, 2014 (R4, tab 7 at 1-4).

5. A different contracting officer, Nathan Kloeckler, responded on February 24,
2014, advising GSC that it needed to submit formally the delays cited in its January 28
letter as requests for equitable adjustments (REAs) (meaning, presumably, that GSC
needed to submit an REA if it wanted him to extend the contract completion date).
CO Kloeckler further stated that he would not terminate the contract for default at that
time due to GSC’s commitment to complete the contract by June 9, 2014, but that the
Corps was not waiving the contract completion date. (R4, tab 6)

6. CO Kloeckler issued a second show cause notice on April 28, 2014,
contending that GSC had not made satisfactory progress towards a June 9, 2014
completion date and that he was again contemplating termination. He once again
stated that the Corps did not “condone any delinquency” or “waive any rights” it had
under the contract. (R4, tab 5)

7. GSC’s project manager, Brannon Cundey, responded by letter dated May 5,
2014, again citing various delays that it contended were beyond its control, but now

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stating that “GSC firmly believes” that it could complete the work by August 30, 2014
(R4, tab 4 at 1-3).

8. CO Kloeckler terminated the contract for default on June 18, 2014, for
failure to meet the contract completion date of February 3, 2014, and failing to make
sufficient progress on completion of the work since that date1 (R4, tab 3). He testified
credibly that the termination was based upon his independent decision and analysis
(tr. 2/282, 3/9-12). GSC filed a timely appeal on July 7, 2014 that the Board docketed
as ASBCA No. 59402.

9. The parties disagree on how much additional time GSC would have required
beyond June 18, 2014. The Corps contends that GSC had completed less than 50% of
the work as of the termination and, based on its pace of work, would have needed until
August 2015 to complete the project (ex. G-12 at 31). GSC contends that as a result of
the various delays it was entitled to a time extension, and the project would have
finished no earlier than December 21, 2014 (app. br. at 38; tr. 10/134).

10. In its post-hearing briefs, GSC focuses on three delays that, in its view,
entitled it to time extensions, $328,293.82 in damages, and conversion of the
termination for default to one for the convenience of the government (app. br. at 2;
app. resp. br. at 2). These delays are: 1) building pad delays; 2) fire water flow test;
and 3) cold formed metal framing/design basis threat. It also alleges delays due to
design revision 3/additional site electric power, damage to roof panels, and the
correction of errors in hairpin reinforcing bars (we address the latter two issues in the
good faith and fair dealing section below).

11. GSC contends that it is entitled to 321 days of excusable delays, including
258 compensable days due to the three main delays (app. br. at 38). Its expert
calculated that it is entitled to 165 days excusable/160 days compensable delay for the
building pads; 22 days of excusable and compensable delay for the fire water flow test;
and 134 days of excusable delay and 76 days of compensable delay for the cold formed
metal framing 2 (ex. A-115).

1 CO Kloeckler also wrote a termination memorandum dated June 17, 2014, in which
he discussed his consideration of the factors in FAR 49.402-3(f) (R4, tab 135;
tr. 3/9-12).
2 GSC’s expert contends that these were the controlling delays and that they

overlapped with other, non-controlling delays, including design revision
3/additional site power and hairpins (see, e.g., tr. 7/95-96, 105; ex. A-115).
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The Building Pad Delays

12. The SSA Warehouse project site was in a corner of what was referred to as
the TEMF [tactical equipment maintenance facility] Complex site, a project that
included demolition of buildings on the SSA Warehouse site; infrastructure work; and
the construction of a TEMF building, unmanned aerial vehicle storage buildings, and
oil storage buildings (R4, tab 9c at 832; tr. 1/73-74; ex. A-18 at 1). The Corps
awarded the TEMF Complex work to Harper Construction, Inc. (Harper or the
“Infrastructure Contractor”) (ex. A-18).

13. As we will illustrate, the work on the two projects required some
coordination, and the dispute boils down to whether GSC or Harper was responsible
for removing and replacing unsuitable soil on the SSA building sites (gov’t resp. br.
at 4-5; app. br. at proposed finding of fact (PFF) 17).

14. The SSA Warehouse task order had various provisions that delineated the
responsibilities of GSC and Harper, including, for example, a provision that Harper
would complete its work on the building pad sites within 120 days of the notice to
proceed (R4, tab 9a at 698).

15. The task order statement of work (SOW) disclosed the presence of
expansive (clay) soils at Fort Sill and specified that the foundation of the buildings
must be designed to meet the geotechnical considerations of the site (R4, tab 9a at 21
(SOW 3.5.5) at 56 (SOW 6.2.1); tr. 1/71). While the Corps had provided a
geotechnical report to offerors with the solicitation, the task order required GSC to
perform a geotechnical investigation and to submit a report with its first foundation
design submittal (R4, tab 9a at 40 (SOW 5.2.2)).

16. SOW 6.3, Site Planning and Design, at 6.3.1.1, provided that the Corps
(that is, Harper, after it demolished the existing structures (tr. 9/193)) would “provide
general site preparation and mass grading” that included brush clearing and removal of
rocks, as well as:

(c) Rough grading to plus or minus 0.3 feet of proposed
subgrade elevation . . . for proposed structures. Maximum
allowable variation of the finished floor elevations is plus
or minus 0.2 feet. The Contractor is responsible for any
additional fill or cut in order to meet the required minimum
or maximum finished floor.

(d) The Infrastructure Contractor will perform rough
grading. In areas that required fill during the rough
grading, general compaction of fills between 95 to 100

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 percent of density as measured by Standard Proctor with
fill being constructed in maximum 8-inch lifts.

(R4, tab 9a at 56)

17. In addition, this clause identified the following requirements

for GSC:

(e) The Contractor is responsible for any specific site
preparation required to accommodate the foundation design
prepared or proposed by the Contractor.

6.3.1.2. Time and weather conditions may affect the actual
condition of the building site(s); therefore, the Contractor
shall accept the site(s) as is and be solely responsible for all
final site preparation including any excavation (if
necessary), placement of select fill (if necessary), and any
testing required to accommodate the proposed foundation,
as required by the Contractor’s final geotechnical report.

(R4, tab 9a at 56)

18. Drawing C101, Note 1, provided:

TEMF INFRASTRUCTURE CONTRACTOR SHALL
ROUGH GRADE SITE TO BOTTOM OF BASE LAYER
FOR BUILDING SLAB AREA. . . . TEMF
INFRASTRUCTURE CONTRACTOR GRADING
WORK SHALL BE DONE TO ACCOMMODATE 8"
BUILDING SLAB AND 6" AGGREGATE BASE . . . .
DESIGN/BUILD CONTRACTOR TO PROVIDE
FOUNDATIONS, SUBBASE, BASE AND BUILDING
FLOOR SLABS AS REQUIRED BY THEIR DESIGN
AND COORDINATE THICKNESS WITH GRADING
WORK BY TEMF INFRASTRUCTURE
CONTRACTOR.

(R4, tab 9c at 839) (emphasis added) The Board finds that “Design/Build Contractor”
on this drawing refers to GSC.

19. Similarly, Drawing C203, Note 1, also provided that GSC was responsible
for the foundations, base, subbase, and building floor slabs (R4, tab 9c at 844).

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 20. SOW 6.6 is entitled “Structural Design.” At sub-section 6.6.3.1, it
specified that due to soil conditions at Fort Sill, the contractor must use a pier and
supported grade beam foundation with structurally supported slab, a conventional rib
mat slab, or a thickened structural slab. (R4, tab 9a at 64-65)

21. Pier and supported grade beam foundations are common at Fort Sill.
Selection of this foundation would have allowed GSC to leave the expansive soil in
place. (Tr. 1/72, 3/273) Selection of a rib mat slab (or “waffle mat”), on the other
hand, required the removal of the expansive soil and replacement with what the parties
refer to as inert or select fill (tr. 3/113, 241, 4/81, 5/116, 7/80, 9/206). The inert
material would form the subbase for the buildings (tr. 3/256; see findings 18-19).

22. In its proposal, GSC indicated that it intended to install a waffle mat slab
and that it understood it would have to remove the existing soil and replace with select
fill:

Foundations:

. . . the following was determined to be the most cost
effective solution with the assumptions based on the local
construction practices for these soil conditions and the
building type:

• Remove and replace a minimum of 8 feet and up to 9 feet
of the unsuitable fill for an area including a 5 ft apron
around the foot print and replace it with select structural
fill. . . .

• Foundation is to be a Concrete Waffle Mat supported on
new structural fill . . . .

(R4, tab 9i at 1854)

23. GSC’s proposal was incorporated in the contract (R4, tab 9b at 730, tab 28e
at 441, tab 28n at 1920).

24. The SSA Warehouse solicitation, at appendix MM, attached at least part of
the TEMF Complex specifications. However, they were marked ‘PROVIDED FOR
INFORMATION ONLY – NOT IN CONTRACT.” (R4, tab 9d at 853) Appendix MM
included the TEMF contract Earthwork section, which included the following language:

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 3.2.1 Building Slab

Overexcavate 8 feet below existing grade of existing soil
and replace with inert fill as required by the geotechnical
investigation. Extend limits of removal to at least 5 feet
beyond the building footprint. Only imported inert fill or
nonexpansive on site soils shall be used for building slab
fill.

(Id. at 974, 981)

25. CO Kloeckler testified that the Corps provided the TEMF specifications in
the SSA Warehouse solicitation because the contractors had to coordinate their work
on the projects and that GSC had to tie in some of its work with Harper’s work,
including fire and domestic water lines, paving, and site lighting (tr. 3/15-16). To
facilitate this process, the Corps conducted regular coordination meetings between
GSC and Harper (R4, tab 140; tr. 2/180, 3/96).

26. On September 28, 2012, (two days after the notice to proceed) Mr. Cundey,
GSC’s project manager, wrote to government officials, including administrative
contracting officer (ACO) Robert Owens, attaching a letter from GSC’s structural
engineer. Mr. Cundey stated that the information from GSC’s structural engineer
would provide the Infrastructure Contractor the depth of cut and fill (R4, tab 12 at 3-4).

27. ACO Owens responded by email later that afternoon, stating that he was
“slightly confused with your needs.” He stated that the Infrastructure Contractor
would not provide any select fill and that “[i]f your foundation design requires any
special fill [you] must excavate and re-fill at your cost IAW subparagraph [6.3.1.1]
(e)” of the SOW. He further stated that the Corps’ intent was for the Infrastructure
Contractor “to provide you with a pad at the two elevations noted [in SOW 6.3.1.1(c)]
but not with anything other than local soil.” (R4, tab 12 at 1)

28. Mr. Cundey replied by email on October 9, 2012. Among other things, he
acknowledged ACO Owens’ reference to SOW 6.3.1.1(e) but stated that this provision
required GSC to perform “site preparation,” not mass grading, which, he contended
were “completely separate entities.” Mr. Cundey stated that site preparation referred
only to any additional cut around the building pads. He further stated that site
preparation “does not refer to the responsibility of removing soil and replacing soils.”
(R4, tab 13 at 1)

29. As referenced earlier, and contrary to Mr. Cundey’s assertion, SOW 6.3.1.2
provided that GSC was “solely responsible for all final site preparation including any

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excavation (if necessary), [and] placement of select fill (if necessary) . . . .” (R4, tab 9a
at 56).

30. Soon after Mr. Cundey’s October 9 email, ACO Owens spoke with
Mr. Cundey. As a result of this conversation, he believed that Mr. Cundey had agreed
that GSC would remove and replace the unsuitable soil from the site (tr. 3/100-01,
9/197-98). To confirm this understanding, ACO Owens wrote another email to
Mr. Cundey on October 10, 2012, in which he stated: “[i]f we are still at a point that I
need to send you a formal letter please let me know.” (R4, tab 16 at 1) GSC did not
respond to the email 3 (tr. 9/197).

31. Sometime in March 2013, a GSC official told ACO Owens that it did not
intend to perform the excavation work at the building pad sites (tr. 9/197). As a result,
on April 15, 2013, he formally directed GSC to begin the work (R4, tab 19).

32. GSC thereafter began excavating the unsuitable material but it encountered
a problem at the 168th Warehouse site. When it had excavated down to where it
should have been able to place the inert fill, it encountered what ACO Owens
described as “blackish soil, very wet, heavy” (tr. 3/113). Mr. Cundey wrote to
CO Charles Peterson and ACO Owens on July 10, 2013. He contended that there was
a differing site condition, and proposed to remedy it by cutting one additional foot and
placing one foot of stone to bridge the bad soil. He requested a 30-day time extension
and $89,410. (R4, tab 177 at 1273-74)

33. ACO Owens agreed that there was a differing site condition. However, he
viewed GSC’s proposal as “very excessive.” (Tr. 3/114) The Infrastructure
Contractor, Harper, already had experience with the site conditions and had the
equipment to address them. It proposed to remove more soil than GSC, place one foot
of rock, and three feet of inert material, to be accomplished in four days for
approximately $55,000. Because this was significantly less time and money than GSC
sought, contained a more comprehensive fix, and because GSC was behind schedule
and the work needed to be done quickly, ACO Owens assigned the work to Harper.
(Tr. 3/114-15, 3/240-41)

3 On February 18, 2013, GSC submitted a claim for $212,580 to perform the building
pad work. GSC did not certify the claim. (R4, tab 2 at 1-3) After
CO Kloeckler denied the claim, GSC filed an appeal docketed as ASBCA
No. 59401, but the Board dismissed it due to the absence of a certification.
GSC Constr., Inc., ASBCA No. 59401, 15-1 BCA ¶ 35,887. GSC states that
ASBCA No. 59401 involved the cost of performing the additional work
whereas the cost of the delay is now before the Board in ASBCA No. 59601
(app. PFF 41).

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 34. GSC contends that it did not have access to the 168th Warehouse site from
its discovery of the differing site condition on July 1, 2013, until July 25, 2013. GSC
also contends that it encountered other differing site conditions including an asbestos
pipe and trash and debris in the building pad area but it does not quantify the delay
caused by these conditions, if any. (App. br. at PFF 39)

35. Based on an analysis by its expert, GSC seeks 165 days of excusable delay
due to the alleged change in the building pad work, 160 of which it contends are
compensable (app. br. at 34 (citing ex. A-115)).

36. The government has submitted convincing evidence that the late
completion of the building pads was largely, if not entirely, GSC’s fault by virtue of its
failure to conduct a timely geotechnical investigation and in delaying its submittal of
the final design of the project. GSC could have begun its geotechnical investigation
once the government issued the notice to proceed on September 26, 2012, but it waited
until October 30, 2012, to order its geotechnical subcontractor to begin work (R4,
tab 37b at 5).

37. GSC needed this report before it could begin designing the slabs and
foundations (tr. 8/44, 8/172; R4, tab 9a at 86-87) but the subcontractor proceeded
slowly. Mr. Cundey expressed his concern on November 27, 2012, when he wrote to
the subcontractor: “[w]e need the final report ASAP. . . . I have to get my structural
engineer working on the foundations and desperately need your help in getting at least
another preliminary recommendations [sic] on the heave potential and undercut/select
fill.” (R4, tab 177 at 223-24)

38. GSC did not obtain the geotechnical report and submit it to the Corps until
January 22, 2013; the Corps rejected it for failing to meet the requirements of the
contract on February 4, 2013 (R4, tab 37b at 1). GSC resubmitted the report on
February 19, 2013 and received an approval from ACO Owens eight days later
(February 27) (R4, tab 37c at 1).

39. As a result of all this, GSC was not able to submit its foundation design
until March 14, 2013 (R4, tab 37e; ex. G-12 at 8). It submitted its final design for the
project on June 13, 2013, and began excavation on the 168th Warehouse site that day
(R4, tab 21 at 14-15, tab 32 at 261, tab 37f).

40. By the time it began excavating, GSC had expended 52.5% of the 495-day
performance period. GSC states in its brief (PFF 40) that it completed the building pad
work on August 12, 2013; thus the actual work took only 61 days, even with the time
required for Harper to remedy the differing site condition.

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 41. GSC submitted a certified claim to the contracting officer for four delay
issues, (the building pads, fire water flow test, cold formed metal framing, and design
revision 3) on June 26, 2014. It sought a 246-day time extension for all of the delays
and $328,293.82 in extended overhead costs. (R4, tab 29) The contracting officer did
not issue a final decision and on September 26, 2014, GSC filed an appeal based on a
deemed denial that the Board docketed as ASBCA No. 59601.

Fire Water Flow Test

42. A flow test is necessary to determine water main pressure and flow (gallons
per minute) for the design of a fire suppression system (tr. 6/69, 7/131). The contract
provided for the test to be conducted relatively early in the contract:

FIRE PROTECTION DESIGN

. . . 6. Adequacy of water supply for fire suppression
systems will be determined at or before the 30% design
level. Requests for flow tests should be sent (in writing) to
the project manager before the 10% design level.

(R4, tab 9a at 680)

43. While this provision speaks of the “30% design level,” the contract granted
GSC discretion as to the state of development for the interim design it would submit to
the Corps (R4, tab 9a at 81). GSC did not submit a 30% design (tr. 9/33); its proposal
schedule and initial schedule referenced submission of a 60% design (R4, tab 9i at 1946,
tab 110 at 5). GSC instead submitted a 65% design on February 4, 2013 (R4, tab 37d
at 2).

44. While GSC did not submit a 30% design, there is nothing in the record that
indicates that the parties intended to dispense with the flow test, nor is there any
evidence that GSC contended that the requirement for the test had been omitted.

45. A flow test requires only about 20 to 30 minutes to perform (tr. 9/9). But to
perform the test, the contract required that GSC have a quality control fire protection
engineer on site (R4, tab 9 at 147-48). The contract specifically stated that specialty
quality control personnel “are not intended to be full-time, but must be physically
present at the construction site during work on their areas of responsibility” (id.
at 147) (emphasis in original).

46. GSC did not submit for approval a fire protection engineer until
September 10, 2013 (R4, tab 33 at 450, tab 58b at 3). It first conducted the flow test
(unsuccessfully) on October 25, 2013, or more than eight months after it submitted the

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65% design, and four months after it submitted its final design (R4, tab 32 at 434;
finding 39).

47. From September 2013 until termination, it is difficult to understand the
actions that GSC took. The only testifying witness that impressed the Board with her
knowledge of the flow test issue was Helen Landry. Ms. Landry was assistant fire
chief at Fort Sill from 1992 until her retirement in 2008. During the SSA Warehouse
contract she worked as a fir e protection specialist for the Corps as a contract
employee; she was on the site “quite often” during the contract work (tr. 9/6-7, 33).

48. According to Ms. Landry’s credible testimony, there were hydrants
available for testing on Miner Road during the entire contract term and the Corps, in
fact, had used these hydrants when it had conducted tests in 2011 (tr. 9/12-13, 16-17,
42).

49. There were hydrants closer to the SSA Warehouse building than those on
Miner Road but the line for these hydrants broke in September 2013. They were not
repaired until March 2014 by the Fort Sill water contractor, which prevented testing on
this line during that time (tr. 9/8, 34-35, 38-39).

50. GSC seems to advance two delay theories concerning the flow test but it
does not explain how or whether they fit together. First, it seems to believe that it was
required to perform the tests at the hydrants with the broken line because they were
closest to the warehouses (app. br. at PFF 47, 49). However, it has not identified any
contract provision or written direction from the Corps, nor does it identify any specific
person at the Corps who verbally directed it to perform the test at the broken line.

51. In its brief, GSC cites the “National Fire Protection Act Section 13” as
requiring the test at the nearest hydrant, but we believe it is referring to guidelines
published by the National Fire Protection Association (app. br. PFF 49; tr. 9/35).
However, it has not provided us with any standard or guideline and Ms. Landry
testified that she knew of no requirement that the test be conducted at the closest fire
hydrant (tr. 9/42).

52. Second, GSC appears to contend that it was delayed by Harper’s work on
the water lines for the infrastructure contract (app. br. at PFF 48, 63). However,
Ms. Landry testified credibly that any new lines or hydrants installed by Harper did not
have to be active for GSC to conduct a flow test (tr. 9/17).

53. The Board finds that GSC created this problem for itself by failing to
conduct the flow test before it submitted the 65% design. If it had done so, the water
line break would never have been an issue. Further, it does not seem to have

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understood where it could perform the flow test. GSC has not proven a flow test
delay.

Cold Formed Metal Framing/Design Basis Threat

54. GSC used cold formed 4 metal framing to construct the exterior walls of the
buildings (tr. 8/112).

55. The MATOC, under Special Contract Requirements, provided:

1.7. RESPONSIBILITY OF THE CONTRACTOR FOR
DESIGN (MAY 02)

(a) The Contractor shall be responsible for the professional
quality, technical accuracy, and the coordination of all
designs, drawings, specifications, and other
non-construction services furnished by the Contractor
under this contract. The Contractor shall, without
additional compensation, correct or revise any errors or
deficiency in its designs, drawings, specifications, and
other non-construction services and perform any necessary
rework or modifications . . . .

1.9. CONSTRUCTOR’S ROLE DURING DESIGN (JUN
98)

The Contractor’s construction management key personnel
shall be actively involved during the design process to
effectively integrate the design and construction
requirements of this contract. . . . the constructor’s
involvement includes, but is not limited to actions such as:
. . . ensuring constructability and economy of the design,
[and] integrating the shop drawing and installation drawing
process into the design.

(R4, tab 28n at 1921-22)

56. The contract, at SOW 5.13, SECURITY (ANTI-TERRORISM
STANDARDS), required GSC to comply with DoD Minimum Antiterrorism
Standards for Buildings, UFC [Unified Facilities Criteria] 4-010-01. The clause stated

4 “Cold formed” means that heat is not used to form the metal (tr. 5/23-24).

12
that the “element of those standards that has the most significant impact on project
planning is providing protection against explosive effects.” (R4, tab 9a at 55)

57. In January 2012 when the Corps issued the task order RFP, the 2007
version of UFC 4-010-01 (2007 UFC) was in effect; DoD updated the standard in
February 2012 (2012 UFC). The 2007 UFC was easier to meet because, if minimum
standoff distances were met, it did not require a specific analysis of blast effects (R4,
tab 143 at 39-40; tr. 9/101-02). The 2012 UFC required such an analysis unless the
design matched specific criteria in table 2-3 of the standard, including, among other
things, the height or span of the steel studs (R4, tab 163b at 75-76; tr. 9/53-54).

58. On January 28, 2013, in request for information (RFI) 0004, GSC asked the
Corps whether it should use the 2007 or the 2012 UFC. On February 4, 2013, the
Corps informed GSC that it should use the 2007 UFC. (R4, tab 35 at 4) GSC’s
designer thereafter followed the 2007 UFC in preparing the design (e.g., R4 tab 37e
at 13, 19).

59. GSC retained a structural engineer to prepare shop drawings for the cold
formed metal framing. 5 The structural engineer inexplicably used the 2012 UFC in
creating the shop drawings. GSC’s quality control manager did not notice the mistake
and on September 20, 2013, he signed a submittal for the shop drawings, certifying
that he had reviewed them in detail and that they were in strict conformance with the
contract. (R4, tab 164 at 1, 4)

60. The parties agree that if GSC had submitted the shop drawings under the
2007 UFC, they would have been approved (gov’t resp. br. at 20; app. reply at 8). But
the Corps’ structural engineer responsible for reviewing the shop drawings was
unaware of its response to RFI-0004. He saw that the shop drawings had been
prepared using the 2012 UFC and reviewed them under that standard (tr. 9/58-60).

61. The shop drawings did not match the criteria in table 2.3 of the 2012 UFC
but GSC had not submitted the blast analysis required by the 2012 version. The Corps
rejected the submittal (R4, tab 164 at 1; tr. 9/53-54, 57). GSC submitted the shop
drawings four times before the Corps approved them on May 6, 2014 (R4, tabs 164-67).
GSC’s structural engineer continued to use the 2012 UFC through the fourth submittal
(R4, tab 167 at 6).

5 FAR 52.236-21(d) (finding 1) defined shop drawings as: “drawings, submitted to the
Government by the Contractor . . . showing in detail (1) the proposed
fabrication and assembly of structural elements and (2) the installation (i.e., fit,
and attachment details) of materials or equipment.”
13
 62. GSC does not challenge the Corps’ contention that it did not provide blast
calculations sufficient to meet the requirements of the 2012 UFC until the fourth
submittal.

63. Another issue that caused some confusion was whether the SSA Warehouse
project was inside a controlled perimeter. This did not matter under the 2007 UFC, but
under the 2012 UFC it dictated the explosive charge the structures had to be designed
to resist (tr. 7/103-04, 9/77, 84-86, 100, 104-05). When the Corps’ structural engineer
rejected the first shop drawing submittal on October 17, 2013, he informed GSC it was
his understanding that the project was not inside a controlled perimeter and GSC must
get a letter from Fort Sill Security clarifying this (R4, tab 164 at 2).

64. GSC did not contact Fort Sill Security, however, and did not re-submit the
shop drawings until March 4, 2014 (R4, tab 165). The issue was not resolved until
ACO Owens, to assist GSC, went to the relevant Fort Sill officials and obtained a
memorandum that he provided to GSC on April 2, 2014, (prior to the third shop drawing
submittal) indicating that the project was inside a controlled perimeter (ex. A-45 at 2;
R4, tab 166).

65. By letter dated March 7, 2014, GSC submitted what it called an REA,
seeking a final decision from the contracting officer related to the cold form metal
framing. It sought $99,950 and a 100-day time extension. (Ex. A-85) The contracting
officer did not issue a final decision and the Corps denies receiving the REA (gov’t
resp. br. at 22); GSC did not appeal. The applicable claim for this issue is, therefore,
the June 26, 2014 claim (R4, tab 29).

66. GSC contends that it suffered 214 days of delay as a result of the multiple
submissions of the shop drawings (app. br. at 23). However, its expert calculated only
134 days of excusable delay, 76 of which were compensable, (and which overlap with
delays from other issues including the flow test) (R4, tab 115).

Design Revision 3/Additional Site Electric Power

67. GSC advises the Board that design revision 3 “was a concurrent, non-driving
delay” and that the Board “need not address” it (app. br. at 37). Perhaps for this reason,
neither party provides a thorough explanation of this issue. The correspondence during
the project tends to be brief, and, in some cases, technical, and it is quite difficult to
discern the precise areas in dispute. However, we address it because it would be a
fallback delay if the Board rejects its contentions concerning the cold formed metal
framing delay, as we do.

68. In September 2013, more than three months after GSC submitted the final
design, it submitted RFIs to the Corps concerning the electrical panels and rain

14
harvesting equipment. On September 25, 2013, GSC submitted RFI-0041 concerning
Drawing E601, Panel Schedule. GSC stated “Panel HA is showing 7 spots available for
extra circuits, a total of 8 circuits are required per the IFC [issued for construction]
drawings. Panel HA is insufficient.” GSC added: “Panel HA can be a 60 circuit panel
instead of a 42 circuit panel. We need to know how much power the site lighting
circuits require to determine if the panel service needs to increase.” (R4, tab 35
at 81-82)

69. On October 4, 2013, the Corps, through electrical engineer Victor Sears,
responded by providing a review of the contract requirements and the IFC drawings.
Mr. Sears’ conclusion was “[i]f Panel HA is installed per the IFC panel schedule, the
42-position panel already meets contract requirements for future spaces. No change is
necessary.” (R4, tab 35 at 81)

70. Thus, while RFI-0041 raised the possibility of changing from a 42-circuit
panel to a 60-circuit panel, the Corps stated that was not necessary. Accordingly, the
Board sees nothing in RFI-0041 that increased or changed the contract requirements.

71. On September 25, 2013, GSC also submitted RFI-0042. It stated:
“Infrastructure drawings ES105 keyed note 8, states (2) 3 phase 480 volt circuits, (2)
3 phase 280 volt circuits and a single phase 120 volt circuit for rain harvesting
equipment per panel schedule. On the IFC drawings E601 and E602 this equipment is
not accounted for.” It further stated: “[w]e need information regarding the electrical
requirements for the rain harvesting equipment so we can make sure we have room for
it on the current service.” (R4, tab 35 at 83-84)

72. On October 4, 2013, Mr. Sears responded: “[u]se the information on sheet
ES-105 in Keyed Note 8 to verify the capacity of the bldg service, panel feeders, panel
ratings, and panel loading. Use the FLA ratings in the NEC for the 4 motor loads and
assume 80% loading on the controller circuit.” (R4, tab 35 at 83)

73. Mr. Sears did not testify, nor did any other witness with expertise in
electrical design or installation. No witness explained RFI-0042. Mr. McKnight
testified for GSC on this delay but the Board found his testimony imprecise and
confusing (tr. 5/185-210). The Board finds that it is unclear whether the terse and
highly technical response to RFI-0042 changed or delayed the work.

74. On November 19, 2013, GSC submitted what it referred to as “Revision 3
Miscellaneous Changes” (R4, tab 101a). A memorandum summarizing the contents of
the submission stated, among other things, that on Drawing E-601 GSC had “[a]dded
site lighting and rain harvest equipment to Panels HA and LA” (id. at 2). The Corps
approved the submittal on January 24, 2014 (id. at 1).

15
 75. On January 21, 2014, GSC submitted an REA seeking $81,140 in costs
related to what it referred to as “additional site power.” The body of the letter was
only one paragraph in length and was conclusory, stating “[a]s the COE is aware, GSC
had no way to anticipate the cost for the site lighting and power requirements for the
rain harvesting system.” (R4, tab 36 at 53) ACO Owens denied the REA by letter
dated March 17, 2014. His letter was also conclusory, but he contended that GSC
should have been aware of the requirements because the Corps had provided offerors
“the entire Infrastructure Contract requirements for coordination purposes.” (R4,
tab 36 at 121)

76. GSC’s certified claim dated June 26, 2014, is also conclusory (R4, tab 29).
Previously, on April 29, 2014, GSC had requested a contracting officer’s final decision
and $84,140 due to the site power issue. While the letter was slightly longer than the
January 21, 2014, REA, it was again conclusory:

As the COE is aware, GSC had no way to anticipate the
cost for the site lighting and power requirements for the
rain harvesting system. The additional site power
increased the main building panel and added additional
panels and circuits to the electrical distribution.

(R4, tab 4 at 6)

77. The contracting officer did not issue a final decision and GSC did not
appeal its April 29, 2014 claim.

78. The record includes no evidence supporting a finding that there were any
evolutions in the design resulting from RFIs 0041 and 0042 that delayed the project,
particularly in light of GSC’s design responsibilities in this design-build contract. Nor
has it demonstrated that it could not have anticipated this work based on the drawings
attached to the RFP. Finally, GSC has not proven the number of days of delay, if any,
that resulted from this issue. Accordingly, GSC has not proven a delay related to
design revision 3.

GSC Allegations Concerning Good Faith and Fair Dealing

79. GSC contends that the Corps breached the duty of good faith and fair
dealing, that Corps employees acted in bad faith, and that the contracting officer
abused his discretion when he terminated the contract. We review its discrete
allegations.

16
 A. Failure to Grant Time Extensions

i. Hairpins

80. GSC alleges that the contracting officer breached the duty of good faith or
acted in bad faith by refusing to provide appropriate time extensions. In addition to
those delays discussed above, GSC relies on a March 7, 2014, claim it submitted to the
contracting officer seeking a 35-day time extension related to “hairpins” (ex. A-80).
The parties have not referred us to any final decision by the contracting officer.

81. GSC’s design provided for bolts to anchor the main columns to the building
foundation. Hairpin reinforcement bars go through the anchor bolts and back into the
concrete. They are important because they provide shear support for the anchor bolts
(tr. 1/97, 3/103-04; see R4, tab 37g at 3340). As ACO Owens explained:

when you put the wind load or even a load on those
A-frames, they’re going to have bilevel stresses on them,
and they push out in the concrete. Without those hairpins,
concrete doesn’t work in shear. Concrete only works in
compression, so the steel picks up that shear and holds the
structural steel where it needs to be.

(Tr. 3/108, see tr. 1/148)

82. Failure to install the hairpins, or to install them correctly, could present
problems ranging from wear and tear on the slab up to collapse of the building
(tr. 3/108-09, 9/127-28).

83. This problem began when GSC reported that it had installed the wrong size
anchor bolts on two columns in the 168th warehouse building (tr. 3/102). While this
was a problem, it proved to be a serendipitous event for the building’s users. When
ACO Owens visited the site, he had some questions on how GSC was going to restore
concrete it had chipped out to fix the bolts, but “then all of a sudden, looking at it, I
realized, you’re missing hairpins. Where are they? They had no answer. We went
and looked at all the locations that were chipped out. They didn’t have hairpins on
column line B.” (Tr. 3/103)

84. Looking further, ACO Owens found other areas where GSC had installed
the hairpins but had installed them incorrectly (tr. 3/106). GSC’s design called for
them to be installed in the upper half of the anchor bolt and in a horizontal position,
but they were installed in the bottom half and “splayed in directions that were other
than horizontal” (tr. 9/135). The Corps quality assurance representative also found that

17
GSC had bent the hairpins incorrectly (tr. 1/99-100). Ultimately, the Corps found that
GSC had installed the hairpins incorrectly at 80-85% of their locations (tr. 9/142).

85. The Corps demanded that GSC provide written confirmation from its
designer that it had considered the placement of the hairpins and that the lateral loads
would be transferred effectively to the slab per the design calculations (R4, tab 177
at 2414). GSC’s designer proffered a solution, but Brannon Cundey insisted that the
as-built configuration was acceptable; GSC continued to perform work, which only
increased the defective work to be fixed. More than two months passed before
Mr. Cundey agreed to fix the hairpins. (Tr. 9/127-28; R4, tab 177 at 3168)

86. GSC contends that “the Corps unduly expanded the inspection requirement
and forced GSC to inspect every hairpin previously installed” and that this “greatly
increased the time required to fix the missing hairpins from a few hours to several
months” (app. resp. br. at 23). Given our findings that missing or defective hairpins
can present problems up to collapse of the building and that GSC had installed 80-85%
of them incorrectly, we consider this contention absolutely astonishing.

87. The Board finds that GSC created this problem for itself and failed to
mitigate any delays. The Board further finds that the Corps acted reasonably in
ensuring that all of the hairpins had been installed correctly.

ii. Damaged Roof Panels

88. On June 23, 2014, GSC submitted a claim in which it sought a 42-day time
extension and $92,126.50 for damaged roof panels consisting of: 16 roof panels
damaged when Harper’s forces ran over them; 46 panels damaged when GSC
relocated them because the Corps failed to provide a laydown area; and 26 panels
damaged due to high winds (app. supp. R4, tab 50).

89. This issue is not adequately explored in the parties’ briefs, but, as best we
can tell: 1) the contracting officer did not issue a final decision; 2) GSC is using the
claim in support of its entitlement to a time extension with respect to the default
termination but is not asking the Board to award it the $92,126.50 referenced in the
claim; and 3) GSC’s expert did not provide any support in his report or testimony for a
delay to the project due to damaged panels (ex. A-115; tr. 7/8-160).

90. In its briefs, GSC does not tell us much more than it views the damage to
the panels as “undisputed” and that it is “irrelevant” that if it had kept to its schedule,
the panels would have long since been installed when the damage occurred (app. resp.
br. at 18). With respect to the wind damage, Mr. McKnight testified that the panels
were damaged in what he called a “microburst” or a “mini-tornado” (tr. 6/8) but we
have not been referred to any documentation of such a weather event.

18
 91. The Corps agrees that Harper damaged six panels on or about May 20,
2014. It contends that GSC is at least partly to blame because the panels should have
been secured; by that date GSC had removed its site superintendent and one of its
quality control managers (see R4, tab 32 at 991, 994) and, as a result was not
supervising the work properly. Further, ACO Owens testified that GSC damaged
numerous panels when it unloaded them (tr. 9/157). Unfortunately, it is not clear from
the testimony if these are the same damaged panels to which GSC is referring and the
record and briefing is inadequate for the Board to sort out which panels were damaged
by which contractor or event.

92. The Board finds that GSC has not proven that damage to panels for which
the government was responsible delayed the completion date of the project.

B. The Magnificent Seven

93. In January 2014, as a result of customer surveys, the Corps conducted a
review of Fort Sill projects that had fallen behind schedule. After examining all
Fort Sill projects worth more than $500,000 that it had managed from July 2012 to
January 22, 2014, it found that about three-quarters had been completed early or on
time but there were seven projects that were late (defined as completed or projected to
complete more than 14 days after the scheduled building occupancy date) for reasons
that could not be readily identified (ex. A-12 at 5). The Corps did a “deep dive” to
understand why these projects had fallen behind schedule. GSC was the contractor on
two of the seven contracts. (Tr. 2/215-16; ex. A-12)

94. The area engineer for Fort Sill, Richard West, dubbed the contracts the
Magnificent Seven. At the hearing, both he and the Fort Sill resident engineer,
Keith Maxwell, denied that they used the term Magnificent Seven to disparage the
contractors (tr. 2/182, 9/128-29).

95. GSC contends in its brief that the “obvious significance” of this name is
that, in the movie, “many of the Magnificent Seven died” (app. resp. br. at 3, n.3).
Mr. West testified that he had not even seen the movie and did not make this
connection (tr. 9/129-31). GSC contends that the name shows that a group of Corps
employees (which it calls the “Magnificent Seven cabal”) were targeting GSC (app.
resp. br. at 3, n.3, 10).

96. The Board finds that the Magnificent Seven process was merely an
investigation into why these projects fell behind so that the Corps could “find common
themes and areas for improvement” (ex. A-12 at 1). While using this name was likely
an attempt at dry or sardonic humor, there is no evidence that the “Magnificent Seven
cabal” had any animus towards the contractors performing these contracts, took any

19
inappropriate actions against the contractors, or sought to embarrass them by using this
name internally.

C. Harper Favoritism

97. GSC contends that the Corps’ “disparate treatment of GSC and Harper is
persuasive evidence of bad faith” (app. resp. br. at 11). Among other things, GSC
contends that the Corps did not include Harper in the Magnificent Seven or terminate
its contract even though its project fell more than 500 days behind schedule (id. at 3,
10).

98. While Harper did fall far behind schedule, ACO Owens testified credibly
that GSC was the reason Harper fell behind. As he explained, part of Harper’s work
included the demolition of existing warehouses. These warehouses were to be
demolished when GSC finished construction of the 168th Warehouse. Once GSC fell
behind, Harper’s project fell “day for day” behind. Moreover, when the contracting
officer terminated GSC’s contract in June 2014, the delay to Harper’s work “went
completely wild,” in that work ground to a halt and Harper had to release its
subcontractors from the project. Harper was only able to bring the subcontractors back
in November 2014 but at that point “the subs trickled back, and they couldn’t come
back with full force, because they had work elsewhere.” Harper never succeeded in
fully restoring staffing levels. (Tr. 3/159-60)

99. GSC also relies on emails from a Corps contract employee responsible for
reviewing schedules who expressed frustration that he had repeatedly found some
dates in the Harper schedules to be incorrect. He requested support from his superiors
in getting Harper to make the corrections and raised the issue of favoritism if this were
not done (app. exs. 8-9). However, he testified at the hearing that Harper and GSC
were not treated any differently. He further testified that Harper fixed its schedules
and the Corps did not have consistent problems with the Harper schedules as it did
with GSC (tr. 2/133-34). The emails in question strike the Board as nothing more than
a worker expressing vexation at a recurring but ultimately minor problem.

100. The Board finds that GSC has not proven that the Corps improperly
favored Harper.

D. Partnering

101. The contract contained the following provisions with respect to
partnering:

20
 3.1.3 Partnering & Project Progress Processes

3.1.3.1 The initial Partnering conference may be scheduled
and conducted at any time with or following the post award
conference. The Government proposes to form a
partnership with the DB contractor to develop a cohesive
building team. . . .

3.1.3.2 As part of the partnering process, the Government
and Contractor shall develop, establish, and agree to
comprehensive design development processes including
conduct of conferences, expectations of design
development at conferences, fast-tracking, design
acceptance, Structural Interior Design (SID)/Furniture,
Fixtures & Equipment (FF&E) design approval, project
closeout, etc. The government will explain contract
requirements, and the DB contractor shall review their
proposed project schedule and suggest ways to streamline
processes.

(R4, tab 9a at 80)

102. While this clause does not limit partnership meetings to the earliest stages
of the project, the Board finds that the benefits of any such meetings would be skewed
to the early stages of the project, and, in practice, that is when partnering meetings
typically occur (tr. 2/178, 3/275). The Board finds that the portions of the clause that
address the development of a cohesive team, the conduct of conferences, the design
development and approval process, the proposed project schedule, and suggestions on
ways to streamline processes would be most likely to have benefits during the initial
months of the project.

103. GSC first requested a partnering meeting on January 28, 2014, after the
contracting officer had issued the first show cause notice, and six days before it was
supposed to complete the project (R4, tab 7 at 1; ex. A-41). The Corps did not agree to
engage in a partnering meeting because it viewed the issues between the parties as
contractual disputes for which GSC needed to submit an REA or claim (tr. 2/178), as
CO Kloeckler advised GSC in his February 24, 2014, letter (finding 5).

104. By the time GSC belatedly requested a partnering meeting, the Corps and
GSC had long been engaging in three types of regular meetings: a weekly progress
meeting between GSC and ACO Owens and his team at which GSC was allowed to
place items on the agenda; a monthly progress meeting between GSC and the Corps to

21
discuss payments; and coordination meetings with Harper, GSC and the Corps to
discuss each contract and coordinate the work (tr. 3/96-97).

105. In addition, after CO Kloeckler issued the second show cause notice, he
granted Brannon Cundey’s request for a meeting at which CO Kloeckler, ACO Owens
and other Corps personnel attended on May 6, 2014. CO Kloeckler invited GSC
President Locke McKnight to the meeting but he failed to attend. At the meeting, the
parties discussed, among other things, GSC’s lack of progress. (Tr. 2/327-28, 3/34)
ACO Owens met with Locke McKnight on May 15, 2014, at which they discussed the
issues in dispute, as well as on two previous occasions (tr. 3/151-52).

106. GSC has not explained why the issues it wanted to discuss at a partnering
meeting could not have been discussed at one of these meetings, or what could have
been accomplished at a partnering meeting given the contractual nature of the dispute.
The Board finds that the refusal of the Corps to engage in a partnering meeting
requested six days before the expiration of the contract term is not evidence of bad
faith or a lack of good faith and fair dealing.

E. Antagonism of Corps Employees

107. In its briefs, GSC attacks Corps employees, chiefly ACO Owens,
contending that they had “animosity” towards GSC (app. resp. br. at 15). Much of
GSC’s discontent with ACO Owens stems from his rejection of GSC’s contentions on
the building pads, the fire water flow test, and the cold formed metal framing described
above (e.g., app. br. at PFF 15, 34, 45, 73).

108. GSC advances a number of other unsupported allegations. For example, it
contends that ACO Owens refused to approve a QC manager for the project “due to
[his] prior employment with GSC” (app. resp. br. at PFF 136). However, when one
reads the testimony GSC cites, ACO Owens actually stated that the person proposed
had been the QC manager for GSC on another Fort Sill project and had performed
poorly. As of the date of the hearing major quality control issues remained open on
that project including, among other things, the provision of as-built drawings and
operations and maintenance manuals (tr. 3/269-71).

109. GSC also contends that Mr. Owens withheld for over a year a document
from the base commander concerning whether the SSA project was inside a controlled
perimeter (app. resp. br. at 12; see findings 63-64) but there is no evidence that
ACO Owens knew the document existed before he obtained it on GSC’s behalf.
Similarly, GSC’s contention that ACO Owens would wait months to approve a
submittal and then backdate it to make it appear that he had acted in a timely manner
was disproved at the hearing. For example, GSC alleged that ACO Owens had

22
approved a submittal in March 2014 (app. PFF 73) but the Corps produced the
document with a digital signature by him on January 24, 2014 6 (R4, tab 101a).

110. Finally, GSC also places a great deal of weight on testimony by
Keith Adams, a construction management contractor retained by the Corps, that was,
in essence a very unflattering assessment of one of the GSC officers (tr. 1/196, 249).
The Board finds that the statement by itself is insufficient to prove bad faith. This
would not be the first construction project where there was a clash of personalities and
the Corps witnesses backed up their criticisms of GSC with specific examples. For
example, ACO Owens testified that GSC’s site superintendent repeatedly overruled the
decisions of his quality control manager, resulting in a frequent need to redo work
(tr. 3/171).

111. Of more concern, this superintendent overrode the decisions of GSC’s
safety officer so many times that ACO Owens told Brannon Cundey that he no longer
wanted him on the site (tr. 3/171). In a similar vein, ACO Owens testified that he
objected when GSC used a Lull 7 to erect steel, which presented a safety hazard.
ACO Owens met with Mr. McKnight who promised that GSC would stop using the
lull and use a crane to lift the steel. Instead, GSC continued using the lull. When
ACO Owens discussed it with the site superintendent, he told ACO Owens that
Mr. McKnight had instructed him to continue using the Lull (tr. 3/178-79). These are
serious issues and the Board is not surprised that they drew the ire of the
administrative contracting officer or other Corps representatives.

DECISION

FAR 52.249-10 (which was incorporated in the contract) provides:

(a) If the Contractor refuses or fails to prosecute the work
or any separable part, with the diligence that will insure its
completion within the time specified in this contract
including any extension, or fails to complete the work
within this time, the Government may, by written notice to
the Contractor, terminate the right to proceed with the

6 Mr. McKnight also testified that ACO Owens, on a previous contract, had told
Mr. McKnight he intended to make his life “a living hell” because he (Owens)
was unhappy that the contracting officer had agreed to provide GSC an
equitable adjustment (tr. 6/180). Because Mr. McKnight made this allegation
for the first time on re-direct when he was not subject to re-cross, and because
ACO Owens denied it (tr. 9/199), the Board finds the allegation not credible.
7 A Lull is a type of equipment known as a material handler. See Norman v. Textron,

Inc., 2018 WL 3199496 at *3-4 (W.D. Mo. 2018).
23
 work (or the separable part of the work) that has been
delayed. . . .

(b) The Contractor’s right to proceed shall not be
terminated nor the Contractor charged with damages under
this clause, if—

(1) The delay in completing the work arises from
unforeseeable causes beyond the control and without the
fault or negligence of the Contractor.

(Finding 1) (emphasis added)

The plain language of this default clause provides that the government may
terminate the contractor for failure to complete the work on time. The government has
met its initial burden to prove that its termination was justified by showing that GSC
failed to complete the contract on time (finding 3); see Lisbon Contractors, Inc. v.
United States, 828 F.2d 759, 765 (Fed. Cir. 1987). The burden shifts to GSC to show
that its nonperformance was excusable. DCX, Inc. v. Perry, 79 F.3d 132, 134 (Fed.
Cir. 1996).

GSC attempts to meet its burden by contending: 1) that it was entitled to time
extensions to December 21, 2014, so that it was not in default at the time of
termination; 2) that the Corps waived the February 3, 2014, completion date; 3) that
the Corps breached the duty of good faith and fair dealing in its conduct during the
project; and 4) that the contracting officer abused his discretion by failing to consider
properly the factors in FAR 49.402-3(f). We consider these in turn.

1. The Alleged Delays

GSC must show that it is entitled to time extensions until the December 21, 2014
date calculated by its expert as the date it could finish the project (finding 9). In other
words, it would not be enough if it could show that it was entitled to a time extension
until a date after the February 3, 2014, contract completion date but short of
December 21, 2014. Empire Energy Mgmt. Sys., Inc. v. Roche, 362 F.3d 1343, 1351-52
(Fed. Cir. 2004). By our count then, GSC needs to prove that it is entitled to the days it
seeks for the building pad, fire water flow test, and cold formed metal framing issues,
or, if its proof on the cold formed metal framing fails, possibly the design revision 3 or
hairpin delays (finding 11).

24
 A. The Building Pads

Although both parties refer to this issue as the building pad claim, the Board
believes that a more precise description would be whether the contract required GSC to
remove and replace the unsuitable fill (findings 26-31); simply stating that Harper was
to provide GSC a building pad does not, in and of itself, address which party is
responsible for removing the expansive fill. The Board holds that the SSA Warehouse
task order assigned this responsibility to GSC. In so ruling, the Board finds that the
contract is notable both for what it says, and what it does not say.

First, the contract did not say that the existing expansive soils must be removed.
GSC could have left it in place if it had chosen the pier and beam foundation identified
in the contract and used on many other buildings at Fort Sill (finding 21). The contract
stated that GSC was responsible for any specific site preparation required to
accommodate its choice of foundation (finding 17). Because removal of the existing
soil was necessary only to accommodate GSC’s choice of a waffle mat slab (id.), the
contract assigned responsibility for it to GSC.

Second, the contract required GSC to excavate if necessary and place select fill
(finding 17). While it required Harper (after demolition of the existing buildings) to
leave the site at specified grades and density, it did not speak of Harper replacing the
existing soil with select fill (findings 16-17).

Third, while the contract drawings stated that Harper was responsible for
grading to the bottom of the base layer, they specifically provided that GSC was
responsible for the subbase (findings 18-19). The inert or select fill formed the
subbase for the buildings (finding 21). In other words, the drawings effectively
assigned placement of the select fill to GSC.

Fourth, GSC indicated in its proposal (which was incorporated in the contract)
that it understood what the contract required because it proposed to remove the
existing fill and replace it with select structural fill (findings 22-23).

GSC raises a variety of arguments in response. It places a lot of emphasis on
appendix RR of the contract (Contract Duration), which provided that Harper would
provide GSC the building pad sites “complete” 120 days after the notice to proceed
(finding 14). GSC seems to read the word complete to mean that Harper would
remove and replace the existing fill (app. br. at 33). We disagree. We must construe a
contract “to effectuate its spirit and purpose giving reasonable meaning to all parts of
the contract.” LAI Servs., Inc. v. Gates, 573 F.3d 1306, 1314 (Fed. Cir. 2009) (quoting
Hercules, Inc. v. United States, 292 F.3d 1378, 1381 (Fed. Cir. 2002)). The word
complete must be read in the context of the specific tasks that the contract assigns to
GSC and Harper. Reading “complete” as expansively as GSC does would nullify the

25
provisions discussed above that make GSC responsible for placing select fill and the
subbase and which required Harper only to grade and compact the area.

With respect to its proposal, GSC tries to explain the statements concerning the
removal and replacement of select fill by stating that it did not specifically state that
GSC would do this and that it was only providing information for Harper to perform
the work (app. br. PFF 15). But the Board concludes that when an offeror uses action
verbs such as remove and replace in its proposal, a reasonable agency would
understand them to refer to actions that the offeror proposes to take, not the actions of
another contractor beyond the control of the offeror. A reasonable offeror would have
identified actions it did not propose to take but would have to be performed by another.

GSC also relies upon the TEMF Complex specification concerning building
slab construction that was attached to the task order for information purposes but not
made part of it (finding 24; app. PFF 17, 22). This provision specified how Harper
would excavate and replace the existing soil with inert fill when constructing building
slabs, but GSC takes it out of context. The TEMF Complex contract required Harper
to construct several buildings and the provision in question merely specified how to
construct the building slabs for those buildings. It is an unwarranted leap to read the
provision as requiring Harper to remove and replace soil on behalf of GSC absent a
specific statement to this effect in at least one of the contracts.

Finally, in its reply brief, GSC addresses SOW 6.3.1.2, which provided that
GSC was responsible for placement of select fill (if necessary) (finding 17). GSC
would have us read this provision so that it only took effect after Harper provided GSC
“a properly constructed building pad,” where the unsuitable soil had been replaced
(app. reply at 5). GSC thus flips the responsibility for placing the select fill onto
Harper and contends that its own responsibility for placing select fill came into effect
only if the site somehow changed in the limited time between Harper turning over the
pads and GSC beginning its work. The contract, of course, said nothing about Harper
placing select fill, as we have explained. 8

In conclusion, the contract supports the interpretation of the Corps, not GSC.
As for delays, the Board believes that there is evidence supporting a delay of up to
about 25 days for a differing site condition due to the wet heavy soil discovered under
the 168th warehouse site (findings 32-34), but such a claim is not before us and such a

8 At page 5 of its reply brief, GSC suggests but does not develop the argument that the
requirement in 6.3.1.2 for GSC to place select fill is severely constrained by the
phrase (prior to a semi-colon) “[t]ime and weather conditions may affect the
actual condition of the building site(s).” GSC has waived this argument and, in
any event, we disagree. The most reasonable interpretation of this language is
that they are simply an explanation for why GSC must accept the site “as is.”
26
brief delay would not make any difference with respect to GSC’s challenge of the
default termination under the rule of Empire Energy Management discussed above.
The Board also concludes that GSC was responsible for many of the days of delay it is
seeking due to its slow start with the geotechnical work and its failure to begin
excavation until more than half the contract time had passed (findings 36-40).

B. Fire Water Flow Test

Although not squarely raised by GSC, we address one contract interpretation
issue, namely, the conflicting contract requirements that required GSC to perform its
flow test before the 30% design with other provisions that gave GSC discretion as to its
interim design submittal and resulted in its submission of a 65% design (finding 43).
No one has contended that the flow test was omitted from the contract when the 30%
design was not required (finding 44).

The Board must interpret the contract as a whole so as to harmonize and give
reasonable meaning to all of its parts. NVT Techs., Inc. v. United States, 370 F.3d
1153, 1159 (Fed. Cir. 2004). The Board believes that the most reasonable
harmonization of these design provisions is to conclude that the contract required a
flow test, and that it required it by the 30% level or, if there was no 30% design, the
design substituted for it, namely the 65% design. If GSC had complied with that, it
would have performed the flow test in early 2013, but it did not hire a fire protection
quality control specialist until September 2013 and could not perform the test until
then, when more than 70% of the contract time had elapsed (finding 46). Its dilatory
hiring of the fire protection professional combined with its misunderstanding of the
sites at which it could perform the tests caused the delay, not any action by the Corps
(findings 48-52).

Accordingly, GSC is not entitled to a time extension for the fire water flow test.

C. Cold Formed Metal Framing

As described above, this issue came about after the Corps informed GSC that it
could follow the less restrictive 2007 UFC in designing the building. GSC’s designer
did so, but the message did not reach its structural engineer who followed the 2012
UFC, and its quality control manager failed to catch it, resulting in four shop drawing
submissions over six months. (Findings 59, 61)

GSC places the blame for this delay entirely on the government because the first
cold formed metal framing shop drawings would have been approved if they had been
submitted and reviewed under the 2007 UFC (finding 60). The Board disagrees.

27
 This was a design-build contract, meaning that the government paid GSC to
perform the design. MATOC special contract requirement 1.7 provided that “[t]he
Contractor shall be responsible for the professional quality, technical accuracy, and the
coordination of all designs, drawings, specifications, and other non-construction
services furnished by the Contractor.” (Finding 55) Further, MATOC special contract
requirement 1.9 provided that GSC’s “construction management key personnel” were
to be “actively involved during the design process” and were responsible for “ensuring
constructability and economy of the design, [and] integrating the shop drawing and
installation drawing process into the design” (id.). The Board interprets these
provisions to mean that GSC personnel were responsible for coordinating the design
work and ensuring that the shop drawings were consistent with the overall design,
which followed the 2007 UFC (finding 58). GSC’s management clearly failed to
coordinate the work of the structural engineer and its designer (finding 59).

In addition, FAR 52.236-21(e) provided that GSC was supposed to “coordinate”
shop drawings “and review them for accuracy, completeness, and compliance with
contract requirements and shall indicate its approval thereon as evidence of such
coordination and review.” It further provided that the government’s approval of the
shop drawings “shall not relieve the Contractor from responsibility for any errors or
omissions in such drawings, nor from responsibility for complying with the
requirements of this contract.” (Finding 1) Under the plain language of this clause,
the government’s approval of erroneous shop drawings does not shift any of the
responsibility for those errors on to the government. Structural Painting Corp.,
ASBCA Nos. 36813, 37305, 89-2 BCA ¶ 21,605 at 108,771.

Thus, while it probably would have been best if, at the time of the first
submittal, the Corps had pointed out the anomaly of using the 2012 UFC to prepare the
shop drawings, the contract allocates to GSC the risk that government review may not
rescue the contractor from its own mistakes. We also acknowledge that the reviewer
stated incorrectly in the first shop drawing rejection that the project was not within a
controlled perimeter (finding 63). However, this would not have been an issue if GSC
had followed the 2007 UFC (id.) and there is no reason to believe there would have
been any delay if GSC had simply done what it was told – seek clarification from
Fort Sill Security (finding 64).

Accordingly, GSC is not entitled to a time extension for the cold formed metal
framing submittals.

D. Design Revision 3/Additional Site Power

As described above, GSC has not proven that the Corps required GSC to
perform additional work or otherwise delayed the project with respect to its answers to
RFI Nos. --0041 and -0042, or design revision 3 (findings 68-78). In addition, due to

28
GSC’s description of it as “a concurrent, non-driving delay”, it has not proven any
days of delay (finding 78).

E. Missing Hairpins/Damaged Roof Panels

The Board rules that the Corps’ actions were prudent and entirely justified when
it discovered that GSC had failed to install hairpins or had installed them incorrectly
(findings 81-87). While this may have delayed the project, it was entirely GSC’s fault.
GSC is not entitled to a time extension for this issue.

With respect to the roof panels, GSC proved that Harper damaged six panels but
this was not adequate to prove that the project had been delayed (findings 91-92).

2. The Corps Did Not Waive the Completion Date

As we have found, the contracting officer did not terminate GSC when it failed
to complete the project on February 3, 2014, but instead, without waiving the
government’s rights, accepted GSC’s representation that it could finish by June 9,
2014. When GSC failed to meet that completion date, the contracting officer promptly
terminated the contract. (Findings 5, 8)

GSC contends that the Corps waived the completion date under the rule of DeVito
v. United States, 413 F.2d 1147 (Ct. Cl. 1969) (app. resp. br. at 26-27). As the Board
recently explained in Watts Constructors, LLC, ASBCA Nos. 61518, 61961, 19-1 BCA
¶ 37,382, the “waiver doctrine . . . protect[s] contractors who are led to believe that time
is no longer of the essence” when allowed “‘to continue [substantial] performance past a
due date,’ under circumstances that justify a conclusion that the default has been
excused.” Id. at 181,726-77 (quoting Fla. Dep’t, of Ins. v. United States, 81 F.3d 1093,
1096 (Fed. Cir. 1996) (quoting DeVito, 413 F.2d at 1153-54)). But waiver of default
does not normally apply to construction contracts absent unusual circumstances. Id.
at 181,727 (citing HK&S Constr. Holding Corp., ASBCA No. 60164, 19-1 BCA ¶
37,268 at 181,352; AmerescoSolutions, Inc., ASBCA No. 56811, 10-2 BCA ¶ 34,606
at 170,549-50). Essentially, waiver is only recognized in the case of such a default when
the government manifests that it no longer considers the contract completion date
enforceable. Id. (citing Technocratica, ASBCA No. 47992 et al., 06-2 BCA ¶ 33,316
at 165,187).

The Board holds that the contracting officer did not waive the contract
completion date. After the first show cause notice, GSC promised to complete the
project by June 9, 2014, a little more than four months after the date it was required to
complete the work. The contracting officer agreed but emphasized he was not waiving
the completion date. (Finding 5) In the Board’s view, it was reasonable for the
contracting officer to give GSC the additional four months it requested before

29
terminating the contract, but with the caution that the government was not waiving its
rights. Red Sea Engineers & Constructors, Inc., ASBCA No. 57448 et al., 13-1 BCA
¶ 35,245 at 173,032 (government forbearance for four months after its express
reservation of rights was not unreasonably long, particularly in light of contractor’s
optimistic reports encouraging forbearance rather than termination).

GSC has not proven that there was anything unusual here. The contracting
officer consistently advised GSC that he regarded the February 3, 2014 completion date
to be in effect (findings 5-6). He gave GSC another chance to complete by June 9,
2014, but GSC failed to take advantage of the reprieve, resulting in its termination soon
thereafter.

Accordingly, we hold that the government did not waive the completion date.

3. Good Faith and Fair Dealing/Bad Faith

GSC contends both that the government breached the duty of good faith and fair
dealing and that Corps employees acted in bad faith (app. br. at 29-30, 36-37; app.
resp. br. at 9). Every contract imposes upon each party an implied duty of good faith
and fair dealing in its performance and enforcement. The implied duty of good faith
and fair dealing includes “‘the duty not to interfere with the other party’s performance
and not to act so as to destroy the reasonable expectations of the other party regarding
the fruits of the contract.’” Dobyns v. United States, 915 F.3d 733, 739 (Fed. Cir.
2019) (quoting Centex Corp. v. United States, 395 F.3d 1283, 1304 (Fed. Cir. 2005)).
But the implied duty “‘cannot expand a party’s contractual duties beyond those in the
express contract or create duties inconsistent with the contract’s provisions.’” Id.
(quoting Precision Pine & Timber, Inc. v. United States, 596 F.3d 817, 831 (Fed. Cir.
2010)). A “‘breach of that duty has to be connected, though it is not limited, to the
bargain struck in the contract.’” Id. (quoting Metcalf Constr. Co. v. United States, 742
F.3d 984, 994 (Fed. Cir. 2014). A breach of the duty does not require breach of an
express provision in the contract but a specific promise must be undermined. Id.

An appellant does not need to prove bad faith to show that the government has
breached the implied duty of good faith and fair dealing. Catherine Kurkjian, ASBCA
No. 61154, 20-1 BCA ¶ 37,594 at 182,539, appeal filed, Kurkjian v. Secretary of
Defense, No. 2020-2201 (Fed. Cir. filed Aug. 26, 2020); CAE USA, Inc. v. Dep’t of
Homeland Security, CBCA No. 4776, 16-1 BCA ¶ 36,377 at 177,349. Bad faith can
be difficult to prove because government officials are presumed to act in good faith,
which can only be overcome by clear and convincing evidence to the contrary. Road
and Highway Builders, LLC, v. United States, 702 F.3d 1365, 1368-69 (Fed. Cir.
2012).

30
 GSC has not demonstrated that the Corps breached the duty of good faith and
fair dealing or that its employees acted in bad faith. The great weight of the evidence
shows that the various Corps employees tried to do the best they could with a
contractor ACO Owens described as “extremely slow and nonproductive” and which
had to do a lot of the work twice (tr. 3/171; findings 85, 110), had repeated safety
problems (finding 111), and, absent a stroke of fortune, would have erected a structure
that might have been in danger of collapse (findings 81-84). There is no evidence that
the Corps treated Harper significantly better than GSC (findings 98-100).

The contracting officers did not act in bad faith by refusing to grant GSC time
extensions to which it was not entitled. Nor was it bad faith or a breach of the duty of
good faith and fair dealing to refuse to provide GSC a partnering meeting requested
six days before the contract completion date where the Corps had provided GSC ample
meetings and the issues in dispute involved contract interpretation (findings 103-06).
Nor was the internal usage of the term “Magnificent Seven” to describe seven projects
that had fallen behind schedule, without more, evidence that the Corps’ employees
were antagonistic to GSC or were targeting it for termination (findings 93-96).

4. The Contracting Officer Considered the Factors in FAR 49.402-3(f)

FAR 49.402-3(f) identified seven factors that the contracting officer “shall
consider” before terminating the contract for default. As we have found, the
contracting officer wrote a memorandum documenting his analysis of the factors
(finding 8, n.1).

GSC spends considerable effort challenging the contracting officer’s analysis of
the FAR 49.402-3(f) factors (app. resp. br. at 14-26), but consideration of them is not a
prerequisite to a valid termination. DCX, Inc. v. Perry, 79 F.3d 132, 135 (Fed. Cir.
1996). Although compliance or noncompliance with the regulation may aid the Board
in determining whether a contracting officer abused his discretion, the regulation does
not confer rights on the defaulted contractor. Id. A contracting officer’s failure to
consider one of the factors in FAR 49.402-3(f) does not require that a default
termination be converted to one for the convenience of the government. Id.

GSC mostly uses this issue as an opportunity to repeat its contentions that it was
entitled to time extensions that we have rejected (app. resp. br. at 17-24). But as the
Court of Appeals for the Federal Circuit stated in DCX, the “contracting officer's
contemporaneous memorandum and hearing testimony demonstrate that he addressed
the pertinent regulatory factors and found that they did not counsel against termination
under the circumstances of this case.” DCX, 79 F.3d at 135; (finding 8, n.1).

Finally, GSC also contends in this section of its brief that CO Kloeckler failed
to use his independent judgment when making the termination decision (app. resp. br.

31
at 15). However, this allegation at its core is not based on much more than GSC’s
belief that he made the wrong decision. We have found that CO Kloeckler credibly
testified that the decision was the product of his independent judgment and analysis
(finding 8).

CONCLUSION

The appeals are denied.

Dated: November 24, 2020

MICHAEL N. O’CONNELL
Administrative Judge
Armed Services Board
of Contract Appeals

I concur I concur in result (see separate opinion)

JOHN J. THRASHER TIMOTHY P. MCILMAIL
Administrative Judge Administrative Judge
Chairman Armed Services Board
Armed Services Board of Contract Appeals
of Contract Appeals

32
 SEPARATE OPINION BY ADMINISTRATIVE JUDGE MCILMAIL

INTRODUCTION

I concur in the denial of the appeals. I also concur (at least in result) in the
plurality’s rejection of appellant’s claims regarding (1) the “building pad” delay;
(2) the “fire water flow test” delay; (3) the “cold form metal framing” delay; (4) the
“electrical design No. 3” delay; (5) the independence of the contracting officer’s
judgment; and (6) bad faith. In addition, I offer this separate opinion.

Appellant, GSC Construction, Inc., challenges the default termination of its
construction contract, and seeks delay damages, concerning the construction of
two warehouses and two accompanying, open-air “bulk storage” buildings at Fort Sill,
Oklahoma. The U.S. Army Corps of Engineers, Tulsa District (government, Corps, or
COE), defends the termination and opposes any monetary award. The parties refer to
one of the warehouses as “the 168th,” and the other as “the 100th” (e.g., tr. 1/7).
Those short-hand references are to two military units, each of which would use one of
the warehouses and one of the bulk storage buildings (tr. 3/161-62).

In ASBCA No. 59402, the government defends the termination for default,
addressing whether (1) termination for default based on failure to meet the contract
completion date was appropriate; (2) the contracting officer followed termination for
default procedures; (3) the government waived termination for default; (4) it was
appropriate to terminate the contract for default based on failure to make satisfactory
progress; and (5) termination for default is appropriate even if the Board agrees with
some or all of GSC’s excusable delays (gov’t br. in ASBCA No. 59402 at 3).

In ASBCA No. 59402, GSC responds that (1) the government failed to carry its
burden; (2) GSC was making adequate progress at the time of termination and was due
time extensions for various delays to the project; (3) the government failed to follow
the Corps-mandated procedure for default termination; and (4) any termination was an
abuse of discretion or bad faith in the administration of the contract and the issuance of
the termination notice (app. resp. in ASBCA No. 59402 at 2).

In ASBCA No. 59601, GSC seeks $328,293.82, citing 252 days of alleged
delay consisting of (1) the “building pad” delay; (2) the “fire water flow test” delay;
(3) the “cold form metal framing” delay; and (4) the “electrical design No. 3” delay
(app. br. in ASBCA No. 59601 at 2; see tr. 1/28-29).

In ASBCA No. 59601, the government responds that (1) GSC has not shown
government responsibility for delays; (2) each delay was chargeable to GSC; and
(3) none of the delays was on the project’s critical path (gov’t resp. in ASBCA
No. 59601 at 2).

33
 THE RECORD OF EVIDENCE

A ten-day hearing of these consolidated appeals began on June 19, 2017. The
record of evidence includes 15 stipulations, 54 volumes of Rule 4 material (consisting
of 294 “tabs”), 139 hearing exhibits in 4 volumes, 4 volumes of daily reports, and the
testimony of 18 witnesses in 10 volumes of hearing transcript totaling roughly
1,500 pages. The parties filed six post-hearing briefs between them, totaling
182 pages. Post-hearing briefing concluded on October 19, 2017. The following
witnesses testified at the hearing:

Keith Lee Adams: Construction manager contractor to the Corps at
Fort Sill (tr. 1/196);

James Braghini: Project control scheduler, Corps, Tulsa District (tr. 2/12);

Brannon Cundey: Former project manager, GSC (tr. 8/75);

William Dozier: Estimator and scheduler, Blanchard & Calhoun Real
Estate, Co. (tr. 5/216);

William Green: Senior structural engineer, Corps, Tulsa District
(tr. 9/43-44);

Charles Johnson: Senior structural engineer, Johnson, Lasbocher &
Associates (tr. 7/160);

Nathan Kloeckler: Contracting officer, Tulsa District (tr. 2/276-77);

Helen Landry: Fire protection specialist, Corps (tr. 9/6);

Keith Maxwell: Resident engineer, Corps of Engineers, Fort Sill
(tr. 2/139);

Richard McAfee: Delay expert, called by GSC (tr. 7/8);

G. Locke McKnight: Owner and president, GSC (tr. 4/230-31);

Stuart Ockman: Delay expert, called by the government (tr. 4/9-10);

Robert Owens: Project engineer and administrative contracting officer
(tr. 3/93);

34
 John Phillips: Former vice-president, GSC (tr. 6/227);

Randy Reeves: Superintendent, GSC (tr. 8/7-8);

Richard West: Area Engineer, Corps, Fort Sill (tr. 9/106);

Thomas Willcox: Quality control contractor to the Corps, Fort Sill
(tr. 1/61); and

Christopher Veltema: Former quality control manager, GSC (tr. 9/213-14).

ASBCA NO. 59402: TERMINATION FOR DEFAULT

I. Was it “appropriate” (that is, justified) to terminate the contract for default
based on failure to meet the contract completion date? Did the contracting officer
follow termination for default procedures? Did the government waive termination for
default? Was termination for default based on failure to make satisfactory progress
appropriate?

FINDINGS OF FACT

On January 16, 2014, the contracting officer issued a show cause notice, which
GSC received on January 24, 2014 (stip. ¶¶ 11-12). The order to show cause states:

Since you have failed to perform in accordance with [the
contract] within the time frame required by its terms, the
Government is considering terminating the contract under
the provisions for default of this contract. The current
required contract construction completion date is
February 3, 2014 and you are 145 days behind your
construction schedule as of January 15, 2014. Pending a
final decision in this matter, it will be necessary to
determine whether your failure to perform arose from
causes beyond your control and without fault or negligence
on your part. Accordingly, you are given the opportunity
to present, in writing, any facts bearing on the question . . .
within 10 days after receipt of this notice. Your failure to
present any excuses within this time frame may be
considered as an admission that none exist. Your attention
is invited to the respective rights of the Contractor and the
Government and the liabilities that may be invoked if a
decision is made to terminate for default.

35
 Any assistance given to you upon this contract or any
acceptance by the Government of delinquent goods or
services will be solely for the purposes of mitigating
damages, and it is not the intention of the Government to
condone any delinquency or to waive any rights the
Government has under the contract.

(R4, tab 8 at 1) GSC responded to the order to show cause on January 28, 2014 (stip.
¶ 13), saying that “[w]e will timely complete this project according to all contract
requirements including time extensions to which we are entitled,” and that “GSC feels
confident that it can complete the project by June 9, 2014” (R4, tab 7 at 1, 3). GSC
also wrote, through its president, Mr. McKnight:

We have submitted sufficient matters of fact to merit time
extensions which will put us back on schedule to
completion. We also request that if you do not accept our
completion plan, that you coordinate any further action
with your counsel and our counsel . . . . Legal consultation
is required before considering any action of termination as
well as consultation with our Small Business
representative. I do not believe that these steps are
necessary as I am confident that we will meet your needs
and timely complete the contract according to the contract
requirements and commitments in this letter. We look
forward to completing this project with you.

(R4, tab 7 at 4)

The construction required by Task Order DS01 was not complete by
February 3, 2014 (stip. ¶ 14). On February 24, 2014, Mr. Kloeckler became the
contracting officer for the project (R4, tab 177 at 3437), and wrote to GSC that:

The Government will not terminate your firm for default at
this time; however, this in no way constitutes a waiver of
the contracts [sic] original contract completion date. The
Government looks forward to your firm meeting the
commitments outlined in your response, including
completion by June 9, 2014.

(R4, tab 6) On March 10, 2014, GSC reiterated to the contracting officer that it could
complete the project by June 9, 2014, and wrote:

36
 GSC concurs that termination is not warranted and looks
forward to working with you on the remainder of the
project.

(R4, tab 36 at 103-04) On April 28, 2014, Mr. Kloeckler issued GSC a “Show Cause
Notice,” stating that:

Since you have failed to perform in accordance with [the
contract] within the time frame required by its terms, the
Government is considering terminating the contract under
contract clause 52.249-10 “Default” of this contract.
Current required construction completion is February 3,
2014 and you have exceeded that date by 83 calendar days
as of April 28, 2014. GSC Construction has also failed to
make satisfactory progress towards completing the project
in accordance with the revised completion date of June 9,
2014 as indicated in your firms’ [sic] response to the
Governments first Show Cause notice dated January 24,
201[4]. . . . Any assistance given to you on this contract or
any acceptance by the Government of delinquent goods or
services will be solely for the purpose of mitigating
damages, and it is not the intention of the Government to
condone any delinquency or to waive any rights the
Government has under the contract.

(R4, tab 5)

On June 17, 2014, Mr. Kloekler issued a termination for default determination
(R4, tab 135 at 1-3). On June 20, 2014 (in a letter misdated June 18, 2014), the
contracting officer, Mr. Kloeckler, terminated the contract for default “due to GSC
Construction not meeting the contract completion date of Feb, 03, 2014 and GSC
Constructions [sic] lack of satisfactory progress towards completion of the contract” (see
tr. 3/7-8, 224, 5/53-54; R4, tab 3, tab 136; app. supp. R4, tab 46; see stip. ¶ 15). The
work had not been completed by the date the contract was terminated (see tr. 1/56-57).

RELEVANT CONTRACT PROVISIONS

The contract incorporates by reference FAR 52.249-10, DEFAULT (FIXED-PRICE
CONSTRUCTION) (APR 1984), which provides:

(a) If the Contractor refuses or fails to prosecute the work
or any separable part, with the diligence that will insure
its completion within the time specified in this contract

37
 including any extension, or fails to complete the work
within this time, the Government may, by written
notice to the Contractor, terminate the right to proceed
with the work (or the separable part of the work) that
has been delayed. In this event, the Government may
take over the work and complete it by contract or
otherwise, and may take possession of and use any
materials, appliances, and plant on the work site
necessary for completing the work. The Contractor and
its sureties shall be liable for any damage to the
Government resulting from the Contractor’s refusal or
failure to complete the work within the specified time,
whether or not the Contractor’s right to proceed with
the work is terminated. This liability includes any
increased costs incurred by the Government in
completing the work.

(b) The Contractor’s right to proceed shall not be
terminated nor the Contractor charged with damages
under this clause, if—

(1) The delay in completing the work arises from
unforeseeable causes beyond the control and without the
fault or negligence of the Contractor. Examples of such
causes include (i) acts of God or of the public enemy,
(ii) acts of the Government in either its sovereign or
contractual capacity, (iii) acts of another Contractor in the
performance of a contract with the Government, (iv) fires,
(v) floods, (vi) epidemics, (vii) quarantine restrictions,
(viii) strikes, (ix) freight embargoes, (x) unusually severe
weather, or (xi) delays of subcontractors or suppliers at any
tier arising from unforeseeable causes beyond the control
and without the fault or negligence of both the Contractor
and the subcontractors or suppliers;

(R4, tab 28n at 1898; 48 C.F.R. § 52.249-10)

DECISION

At the outset, GSC is mistaken that Wilner v. United States, 24 F.3d 1397 (Fed.
Cir. 1994), “does not apply to either appeal” (see app. br. at 29). Under Wilner, our
review of these appeals is de novo, and the parties start before us on a clean slate. See

38
id. at 1402; First Div. Design, LLC, ASBCA No. 60049, 18-1 BCA ¶ 37,201
at 181,102.

A. Is the termination justified?

Under the default clause, here FAR 52.249–10(a), “[i]f the Contractor refuses
or fails to prosecute the work or any separable part, with the diligence that will insure
its completion within the time specified in this contract including any extension, or
fails to complete the work within this time, the Government may, by written notice to
the Contractor, terminate the right to proceed with the work (or the separable part of
the work) that has been delayed.” The government must prove by a preponderance of
the evidence that a termination for default was justified; should the government justify
the termination, the contractor must prove that the default was excusable. CKC Sys.,
Inc., ASBCA No. 61025, 19-1 BCA ¶ 37,385 at 181,750.

The government says that the termination of the contract for default was justified
because GSC did not meet the contract completion date (gov’t br. in ASBCA No. 59402
at 5). Because GSC did not complete the work by the contract completion date of
February 3, 2014, GSC defaulted; consequently termination for default was justified. 9
See Truckla Serv.s, Inc., ASBCA Nos. 57564, 57752, 17-1 BCA ¶ 36,638 at 178,445.
GSC does not say that the termination of its contract was a pretext, such that we might
have to address the following, which we said in Truckla:

In [Darwin Constr. Co. v. United States, 811 F.2d 593
(Fed. Cir. 1987)], the Federal Circuit held that a default
termination that was done “solely to rid the Navy of having
to further deal with” the contractor was an abuse of
discretion, in circumstances where the reason given for the
termination was found to be a pretext, which the court
called a “technical default.” 811 F.2d at 595. In the
McDonnell Douglas A-12 aircraft litigation, the Federal
Circuit clarified Darwin, explaining that the technical
default theory bars only a termination for default in which
there is “no considered nexus between the default
termination and the contractor’s performance under the

9 During the hearing, the government suggested that it might rely upon labor violations
allegedly committed by GSC to justify the termination, or, at least, that it was
not ready to abandon any such position (see tr. 1/25). Because the government
has not addressed any issue of labor violations in its post-hearing briefing, it has
waived any contention that labor violations justify the termination. See
SmithKline Beecham Corp. v. Apotex Corp., 439 F.3d 1312, 1319 (Fed. Cir.
2006) (“arguments not raised in the opening brief are waived”).

39
 contract.” Because in the A-12 termination, the
government identified a nexus between the contractor’s
performance and the termination, the Court reversed a
lower court decision overturning the termination.

17-1 BCA ¶ 36,638 at 178,445 (citing McDonnell Douglas Corp. v. United States,
182 F.3d 1319, 1326 (Fed. Cir. 1999)). Rather, the question here is whether the
termination has a nexus to performance. It does: GSC failed to complete the work by
the contract completion date. Because the government has established that GSC was in
default, the termination of the contract for default is valid. Aerospace Facilities Grp.,
Inc., ASBCA No. 61026, 20-1 BCA ¶ 37,668. For that reason, too, it is not necessary to
address, at least not in this, the justification stage, whether the termination was the result
of bad faith in the administration of the contract or in the issuance of the termination
notice. See id. at 182,877-78.

B. Did the contracting officer follow termination for default procedures?

The parties disagree whether the contracting officer properly considered the
factors set forth in FAR 49.402-3(f) in deciding to terminate the contract for default (see
gov’t br. at 15-16; app. resp. at 16). That issue need not be decided. However a
contracting officer arrives at a termination decision, the government may rely upon a
contractor’s failure to do its job to justify the termination of the contract for default.
Aerospace Facilities, 20-1 BCA at 182,877; HK&S Constr. Holding Corp., ASBCA
No. 60164, 19-1 BCA ¶ 37,268 at 181,352 (citing cases); aff’d, 825 F. App’x 921 (Fed.
Cir. Oct. 7, 2020) (per curiam, unpublished opinion); see also Watts Constructors, LLC,
ASBCA No. 61518, 19-1 BCA ¶ 37,382 at 181,728 (citing and parenthetically quoting
HK&S with approval).

C. Did the government waive termination?

The parties disagree whether the government waived the contract completion date
under DeVito v. United States, 413 F.2d 1147 (Ct. Cl. 1969) (gov’t br. at 11; app. resp.
at 26). Time is of the essence in any contract containing fixed dates for performance.
Waiver is an affirmative defense that the contractor has the burden to prove. The waiver
doctrine protects contractors whom the government leads to believe that time is no
longer of the essence when allowed to continue substantial performance past a due date,
under circumstances that justify a conclusion that the default has been excused. But
waiver of default does not normally apply to construction contracts absent unusual
circumstances. Essentially, waiver is only recognized in the case of such a default when
the government manifests that it no longer considers the contract completion date
enforceable. Watts Constructors, 19-1 BCA ¶ 37,382 at 181,727.

40
 Absent “unusual circumstances” indicating that time is no longer of the essence, a
reasonable forbearance from terminating a delinquent construction contract is not a
waiver of the contract completion date. Red Sea Engineers & Constructors, Inc.,
ASBCA No. 57448, 13 BCA ¶ 35,245 at 173,032. For example, there are no such
“unusual circumstances” where the government has waited a few months to terminate a
contract for default after having expressly reserved its termination rights, particularly
where a contractor has provided optimistic reports encouraging forbearance rather than
termination as the most expeditious way of completing the project. Cf. id. (four months
of forbearance did not waive termination right). Nor does a contractor’s work after a
completion date indicate a waiver, particularly where it is against the backdrop of a
government manifestation that it still considers that date to be the contract completion
date. See Watts Constructors, 19-1 BCA ¶ 37,382 at 181,727.

GSC does not expressly identify any of the circumstances here as “unusual”;
indeed, GSC does not use the term “unusual” at all in any of its post-hearing briefs, in
any context. Rather, GSC argues that because “the government did not mention or
assess liquidated damages,” the government waived the construction contact
completion date (app. resp. in ASBCA No. 59402 at 27). But in Technocratica, we
said:

[T]his Board has applied the waiver doctrine to
construction contracts . . . where there is a manifestation by
the government that it no longer considered the contract
completion date enforceable. For example, . . . we held the
waiver doctrine applicable where the government
permitted the contract completion date to pass without
apparent concern, the contractor continued to perform
contract work, and the government did not mention or
assess liquidated damages. Similarly, . . . the doctrine [is]
applicable where the government permitted the completion
date to pass without taking any action, did not unilaterally
or bilaterally establish[] a new completion date, and did
not mention or assess liquidated damages.

ASBCA No 47992 et al., 06-2 BCA ¶ 33,316 at 165,186 (emphasis added). That
discussion demonstrates that not mentioning liquidated damages is not enough to
waive a construction contract completion date. Rather, what is important is whether
the government acts as though time is no longer of the essence, see
AmerescoSolutions, Inc., ASBCA No. 56811, 10-2 BCA ¶ 34,606 at 170,550
(explaining B.V. Constr., 04-1 BCA ¶ 32,604 at 170,550), especially where the
government has expressed that it is not waiving its rights, see Watts Constructors, 19-1
BCA ¶ 37,382 at 181,727. As for the passage of time after a contract completion date,
although nearly a year or more without termination may indicate that time is no longer

41
of the essence, AmerescoSolutions, 10-2 BCA ¶ 34606 at 170,550 (explaining
Technocratica (10 to 13 months)), B.V. Constr. (two years)); here, only 135 days –
fewer than five months – passed between the February 3, 2014 contract completion
date and the June 20, 2014 termination date. Cf. Watts Constructors, 19-1 BCA ¶
37,382 at 181,727 (seven months not a waiver). That does not indicate that time was
no longer of the essence or that the government considered the contract completion
date unenforceable, nor do the “continued work on the job and [] three pay
applications” to which GSC points (app. resp. in ASBCA No. 59402 at 28).

Rather, the government indicated twice in the 135 days that passed between the
February 3, 2014 contract completion date and the June 20, 2014 termination of the
contract that time was still of the essence: (1) on February 24, 2014 (21 days after the
contract completion date), the government expressly disavowed that it was waiving the
contract completion date; and (2) on April 28, 2014 (84 days after the contract
completion date and 63 days after expressly stating that it was not waiving the contract
completion date), the government warned that the contract might be terminated for
default. In any event, GSC says the January 16, 2014 order to show cause waived the
contract completion date (app. resp. at 28). Nothing in that document waives the
February 3, 2014 contract completion date; if anything, the language: “[a]ny
assistance given to you on this contract or any acceptance by the Government of
delinquent goods or services will be solely for the purposes of mitigating damages, and
it is not the intention of the Government to condone any delinquency or to waive any
rights the Government has under the contract” preserved the government’s right to
completion by February 3, 2014. GSC points (app. resp. at 28) to R4, tab 6, but that
document is a February 24, 2014 letter from the government that says, in deciding not
to terminate the contract “at this time,” “this in no way constitutes a waiver of the
contract’s original completion date,” and “[t]he Government looks forward to your
firm meeting the commitments outlined in your response, including completion by
June 9, 2014.” And on April 28, 2014, the government sent GSC another order to
show cause, which says that the “[c]urrent required construction completion is
February 3, 2014.” Although the April letter does not include the language “this in no
way constitutes a waiver of the contract’s original completion date” found in the
February letter, and although the April letter refers to “the revised completion date of
June 9, 2014,” the April letter’s language that the “[c]urrent required construction
completion is February 3, 2014” and “it is not the intention of the Government to
condone any delinquency or to waive any rights the Government has under the
contract” preserved the February 3, 2014 contract completion date.

In addition, although Mr. Kloeckler waited 135 days after the contract
completion date to terminate the contract, he advised GSC a little more than two
weeks before the contract completion date that the completion date was February 3,
2014, and that the government did not intend to waive any rights under the contract,
and then, weeks after the February 3, 2014 contract completion date, advised GSC that

42
he was not waiving the contract completion date. Cf. Abcon Assocs., Inc., 44 Fed. Cl.
625, 631 (1999) (no waiver; government notified contractor that it did not intend to
waive right to terminate for default). Again in April 2014, after the contract
completion date passed, Mr. Kloeckler reiterated that the contract completion date
remained February 3, 2014. In addition, Mr. Kloeckler terminated the contract only
nine days after the June 9, 2014 date by when GSC had said (months earlier, after the
contract completion date had passed) that it could complete the work.

Moreover, GSC provided to the government optimistic reports encouraging
forbearance rather than termination as the most expeditious way of completing the
project. Responding to the government’s January 16, 2019, order to show cause
stating that it was “considering terminating the contract,” GSC wrote to the
government four days later that it would timely complete the project “according to all
contract requirements including time extensions,” that it could complete the contract
work by June 9, 2014, that the government consult with GSC’s counsel before taking
any further action toward termination, and that termination would not be necessary
because GSC was “confident that we will meet your needs and timely complete the
contract according to the contract requirements and commitments in this letter.” And
on March 10, 2014, a month after the February 3, 2014 contract completion date, GSC
wrote to the government that GSC concurred that termination was not warranted, and
looked forward to working with the government on the remainder of the project.

Patten Co., ASBCA No. 35319, 89-3 BCA ¶ 21,957, which GSC relies upon in
support of its waiver argument (app. resp. br. in ASBCA No. 59402 at 31), does not
involve a construction contract. GSC complains that the government did not partner
with it to meet the June 9, 2014 proposed completion date (app. resp. br. ASBCA
No. 59402 at 30), but even if true, that would not indicate a waiver of the February 3,
2014 contract completion date. For all these reasons, the DeVito waiver doctrine does
not apply to this construction contract, and even if it did, the government did not waive
the February 3, 2014 contract completion date.

However, if the government did waive the February 3, 2014 contract
completion date, it established a new contract completion date: June 9, 2014.
Pointing to Mr. Kloeckler’s testimony that he did not establish a new contract
completion date, GSC says that the government never established a new contract
completion date (app. resp. in ASBCA No. 59402 at 30). After waiving a contract
completion date, the government cannot terminate a contract for default based upon a
contractor’s failure to make progress with or complete the contract work unless it
reaches agreement on a new completion date with the contractor or establishes by
specific notice a new completion date, which is reasonable based on the contractor’s
performance capabilities at the time that date is established. Technocratica, 06-2 BCA
¶ 33,316 at 165,188. The April 28, 2014 order to show cause says: “GSC
Construction has also failed to make satisfactory progress towards completing the

43
project in accordance with the revised completion date of June 9, 2014 as indicated in
your firms’ [sic] response to the Governments first Show Cause notice dated
January 24, 2015” (emphasis added). That is a direct reference to GSC’s position on
completion: on January 28, 2014, GSC told the government that “[w]e will timely
complete this project according to all contract requirements including time
extensions,” and that “GSC feels confident that it can complete the project by June 9,
2014.” Assuming for the sake of decision that the government waived the February 3,
2014 contract completion date, the government re-established a new contract
completion date of June 9, 2014, which GSC also failed to meet; the government
terminated the contract only 11 days after that “revised” date, on June 20, 2014.

After February 3, 2014, the government continued to view time as of the essence,
and never waived the February 3, 2014 contract completion date. GSC’s DeVito
waiver argument is rejected.

D. Did GSC fail to make satisfactory progress?

The government also raises the issue whether “termination for default based on
failure to make satisfactory progress was appropriate” (gov’t br. in ASBCA No. 59402
at 3). That question need not be answered. Where, as here, the delivery date has passed,
any termination constitutes termination for failure to meet a performance deadline, not
for failure to make progress. See Abcon, 44 Fed. Cl. at 631. Only if excusable delay
extended a contract completion date beyond a contract termination date would failure to
make progress toward the extended contract completion date become an issue. Because
(below) I find no such excusable delay, I do not address further whether GSC “failed to
make progress.”

II. Is the default excused?

FINDINGS OF FACT

A. GSC’s subcontractors

Both before and after the termination, GSC wrote to some it its subcontractors
on the project, blaming them for problems including delay of the project, termination
of the contract for default, and monetary losses to GSC. I find those statements
admissions against GSC’s interest, and, based upon those admissions, find that
subcontractors to GSC delayed the project, causing the termination for default and
millions of dollars in monetary losses to GSC.

44
 1. Mitchell Acoustics

GSC blamed Mitchell Acoustics, which GSC contracted to erect and install
exterior structural studs, interior studs, sheetrock, and insulation (tr. 5/20, 8/213, 260),
for causing the termination of the contract for default by delaying the work, and
informed Mitchell Acoustics that it had caused in excess of $2.1 million in losses to
GSC (see R4, tab 179n at 1). On September 24, 2014, GSC wrote to Mitchell
Acoustics through Mr. Phillips, GSC’s then-vice-president:

This letter is to inform you that GSC’s contract was
terminated on the SSA contract. We have been
investigating the cause behind this and it appears that this
was due to lack of progress by Mitchell Metals.[ 10] This
has resulted in excess of $2.1 million in losses. As in
accordance with our subcontract, GSC requests mediation
and arbitration to resolve this matter as soon as possible.
GSC requests your response by 10/1/14 and how you
intend to pursue.

(R4, tab 179n) Mr. Phillips testified at the hearing but never testified regarding this
letter (tr. 6/227-39), even though Mr. McKnight (who also did not testify regarding
that letter) testified regarding GSC’s efforts “to speed performance of [Mitchell
Acoustic’s] work,” including meeting with Mitchell Acoustics “to increase their
manpower” (tr. 5/26, 6/15). Along the same lines, on June 9, 2014, GSC’s then-
project manager Mr. Cundey wrote to Mitchell Acoustics that:

I need to know what the plan is for making up for lost
production time. I can understand cutting the crew if you
they [sic 11] are not producing but you also told me you
would have another crew of qualified individuals on
Monday. This did not happen. I do not think the answer is
to use a 8 man crew and take equipment off of the project.
I need a completion dates and another crew on-site
yesterday. Framing and sheathing need to be going on
concurrent to make up for loss production time. Please
have these answers to me by the end of the day.

10 I take this unexplained reference to “Mitchell Metals” to refer to Mitchell Acoustics.
11 As will be seen, Mr. Cundey’s correspondence is rife with punctuation, spelling, and
grammar anomalies, too many to signal with the convention “[sic]” without
unduly distracting the reader; thus, I will bring almost no further attention to
them.

45
(R4, tab 179l; tr. 8/166-67) Later the same day, Mr. Cundey wrote to Mitchell
Acoustics that:

Mitchell Acoustics has now been on this project for
(5) weeks. The original timeline discussed to complete the
exterior studs on the 168th was (15) working days or
(3) weeks. At this point in time we are not even half way
complete with the studs and not even a quarter of the way
complete with the sheathing. I personally discussed these
issues with you last week and you stated you understood
and felt that personnel issues were the cause of the
problem. At that time you went from having 16 employees
on-site to 8 employees. You also stated that as of Monday
I would have two experienced crews on-site to work the
168th and 100th buildings concurrently. As of today there
are still 8 employees on-site and the production they are
making is a joke. The 6 individuals you had on-site
Saturday accomplished more production with less people.

I am trying to keep from writing your company directives
per the subcontract agreements or procuring another
company to complete the other building and deduct their
contract amount from your subcontract agreement.
Therefore I am once again asking you what is the plan to
make up for loss time. If the individuals you have on-site
now are the experienced crew you mention last week then
we have a major problem. They are making far less
production than when you had 16 people and even making
less production than the 6 individuals that worked this
Saturday. I am extremely concerned and perplexed about
the lack of urgency.

Please have a plan of action by the end of the day or I will
be forced to take other measures.

(R4, tab 179i) The next day, Mr. Cundey wrote to Mitchell Acoustics:

GSC has expressed our concerns regarding lack of
production verbally and via email correspondence. GSC
has gone above and beyond trying to help Mitchell
overcome manpower and production issues. Mitchell
Acoustics has now fallen (2) weeks behind the original
completion date for the 168th exterior studs and is at least

46
 (3) weeks behind on the 100th exterior studs. The original
duration that was given for GSC for the exterior studs was
15 days. Mitchell has now been on site for 21 days and is
not even half way completed with the 168th building and
the 100th building has barely started. Sheathing has barely
started in the 168th and has not started at all in the 100th.
Mitchell Acoustics will need to almost double the current
crew to make up for the slow production.

Per Article 4.1.8.1 of the subcontract agreement, GSC is
informing Mitchell that if additional manpower is not on-
site no later than 6-11-14 that GSC will be forced to
procure additional forces. All cost for such additional
forces shall be deducted from the Mitchell’s contract
amount. I will also require completion dates for exterior
and interior metal stud walls by the end of the day.

(R4, tab 179m) At the hearing, Mr. Cundey (who by the hearing no longer worked for
GSC (tr. 8/75)) confirmed that Mitchell Acoustics “was not properly manning the
project” and that “the time it was taking Mitchell to frame and sheath was
unacceptable” (tr. 8/225, 228). Based upon those admissions, I find that Mitchell
Acoustics delayed the project, caused the termination for default, and caused GSC to
lose $2.1 million.

2. TTG Electric

In September 2014, GSC blamed TTG Electric Co., Inc. (TTG), which GSC
had contracted for various electrical and lighting work on the project (R4, tab 183a
at 15, 29-30), for causing the termination of the contract for default and more than
$2.4 million in losses to GSC by delaying the work (see R4, tab 183j at 1). On
September 16, 2014, Mr. McKnight wrote to TTG:

GSC has reviewed the events leading up to termination and
believe one of the delays was attributed to TTG Electric.
TT[G] violated its contract with GSC by delaying the
submittals and approval of the electrical panels on this
project. It worked without GSC’s knowledge to develop
site lighting with the infrastructure contractor. Once the
power requirements was known, it misled GSC leading to
revision to the electrical requirements and request for self-
inflicted change order. Basically, TTG worked with [the
government] and infrastructure contractor without GSC’s
knowledge to place site electrical loads in the warehouse

47
 area without GSC’s knowledge and the knowledge that
GSC’s limits of responsibility were 10’ outside building
limits.

It is clear TTG played a key role in 6-1/2 Month delay in
this project and termination by GSC for lack of progress.
GSC requests to be compensated $2,453,000.00 for its
losses. GSC demands mediation and arbitration to resolve
this matter as dictated by Article 6 of the executed
contract.

(R4, tab 183j) Mr. Phillips wrote virtually the same thing to TTG on September 25,
2014 (R4, tab 183k). Along the same lines, on March 31, 2014, Mr. Cundey wrote to
TTG on behalf of GSC:

I need to speak with the individual who made the decision
to abandon the project first thing this morning. . . . I am
directing TTG to have individuals on-site no later than
9:00am. Abandoning the project is not the way to handle
disputes.

R4, tab 183i Based upon those admissions, I find that TTG delayed the project, caused
the termination for default, and caused GSC to lose $2,453,000. Despite these many
communications, at the hearing Mr. McKnight said that he had blamed TTG because,
he said, he “had limited information at that time” and “did not know all the facts”;
even so, he did not disclaim the contents of his letter (see tr. 5/207-09).

3. Steel Resources

According to GSC’s own communications, another subcontractor, Steel
Resources, LLC, which GSC had contracted to design, supply, and install “all steel,
purlins, decking, metal roof, roof insulation, gutters, soffit, fascia and downspouts” for
the SSA project (R4, tab 185d at 1, 10), delayed the project by failing to properly staff
the project, and by engaging in a slowdown or shutdown over a payment dispute with
GSC (see e.g., R4, tab 185s at 1-4; tr. 6/194). In November 2013, Mr. Cundey wrote
to Steel Resources:

As per our conversation today and in the past we where
scheduling start erection of warehouse during completion
of slabs on the other area ,per your schedule erection steel
is app 2 weeks . We discussed 2 crews as both steel
erection could accrue within two weeks apart . As of today

48
 we have no erectors on site ,no erector crew is scheduled to
be on site as you stated did not have a agreement with
crews as of today to start or continue . Further more crews
on site have major issues with payrolls that may effect
GSC pay request on activities completed to date . We need
to discuss ,payrolls and manpower available to start and
complete activities as need . One crew with 4 labors is
unacceptable . Does GSC need to find erector to continue
activities next week ?

R4, tab 185q at 1 (emphasis added) Days later, GSC wrote to Steel Resources:

GSC is informing Steel Resources that the continuous
issues with erection crews are seriously delaying the
project schedule. At this time Steel Resources has no
erection crews on site and GSC has not received any type
of safety documents on the new erection crew. GSC is
informing [Steel Resources] that if erection crews are not
on site on Monday, 25, GSC intends on following the
subcontract agreement to acquire outside forces to
complete Steel Resources’ scope of work.

R4, tab 185u at 1 (emphasis added) Only days after that, GSC wrote to an attorney for
Steel Resources:

Please inform your client due to delays on this project and
not manning the project, this is notification he is in
violation of Article 3.4.3 and GSC is taking steps under
Article 3.4. GSC further feels it has notified and suffered
sufficient delays to execute Article 7.2 of the contract and
seeks damages as allowed by these articles. . . . It is
GSC’s hope that you will convey to your client to
complete his contract in a timely manner so losses can be
minimized and every one can get paid.

R4, tab 185w at 1-2 (emphasis added) On November 19, 2013, GSC wrote to Steel
Resources that Steel Resources had “no grounds per contract for non performance and
intentional delay of project and should be held liable for delays and cost,” and stated
that “GSC is demanding mediation and arbitration per contract to resolve” (R4,
tab 185s at 1-2). On December 2, 2013, Mr. McKnight wrote to Steel Resources:

As clearly outlined by Article 11.1 of Steel resources
signed executed contract Steel resources is to get paid as

49
 GSC gets paid. I cannot help that Steal resources billed for
material not onsite “insulation” now “trim” and the user
does not warrant payment of Steel Resources invoice.
Article 11 and 4.7 further clearly states that Steel
Resources is not to delay project for disagreements on
payment. GSC has also suffered damages do to your
violations of Article 3.2 of the executed contract of which
need resolution .

GSC has demanded mediation and Arbitration required by
Article 6 of which I have received no response. We need
to firm up a date so the all disagreements can be resolved
to avoid any additional delays and cost can be avoided. If
you refuse to agree to a date and arbitrator by Wednesday,
GSC will be forced to enforce article 7.2 of the contract
and hold accountable for any additional cost. . . . It is my
hope that you will work with GSC to try and finish your
contract work as soon as possible.

(R4, tab 185aa at 1) (emphasis added) On December 11, 2013, Mr. McKnight again
wrote to Steel Resources:

It is my understanding that Brad called up our erector and
threatened him. So he has abandoned the project and we
are once again without an erector. This goes against our
agreement to work with this erector and get MBCI paid.
GSC has rented an great amount of equipment and Steel
resources will be held accountable for this and delay cost.

I also understand that Brad has also tried to sabotage the
project by giving false information on concrete. As u can
see from the attached picture of columns standing. This
also goes against our agreement that Brad would not talk to
COE and would be taken off job.

...

Thus unless I hear something to prove this is incorrect
today and u intend complete your contract. I will make my
attorney very rich to make u pay for doing what u did to
GSC.

(R4, tabs 177 at 2547, 185cc) (emphasis added) Mr. Knight also wrote:

50
 GSC will experience great unnecessary losses completing
your contract work. It is clear by your actions, ”
Demanding Errectors to leave Project” Steel resources had
no intentions of completing this project. I will let my
attorneys explain this and why [Steel Resources]
abandoned project. I have instructed gsc attorney to get us
into mediation ASAP and then arbitration so GSC can
recover losses.

(R4, tabs 177 at 2546, 185dd at 1) (emphasis added) Mr. McKnight testified regarding
that letter that he was “trying to motivate [Steel Resources] to perform” (tr. 6/111), and
denied that problems with Steel Resources abandoning the project were “one of the
significant reasons why [GSC] was experiencing delays” (tr. 6/113-14). Nevertheless,
based upon those admissions, I find that Steel Resources delayed the project and
caused GSC monetary losses.

4. Other, internal issues, and issues with other subcontractors

GSC was delayed by other issues, both internal and with other subcontractors.
In December 2013, Mr. McKnight wrote that it would “take another 10 months to
complete” the project, citing that GSC had “not even completed concrete,” and had
“4 [quality control] people on this project and only 60% of submittals complete after
1 year” (R4, tab 177 at 2532). In December 2013, Mr. McKnight blamed GSC’s
superintendent, Mr. Reeves, for GSC’s problems with submittals:

I am very disappointed by your actions. I clearly explained
to you all to get the info submitted and approved and not
rely any contractors. If it changed we would resubmit.
But u still look for excuses to not get the job completed.
Example “we have no contractor for cmu”.
Scott completed all submittles on project in six months. U
have ben on this project for 10 months and have not
completed 50%. I would suggest you help scott to help u
get out of this mess.

(R4, tab 177 at 2734) On December 18, 2013, GSC blamed a company named
“Boatwright” for delays to submittals (R4, tab 177 at 2777). On February 20, 2014,
GSC wrote to Division Counsel of a company referred to as “MBCI”:

As you are aware, GSC has encountered several issues
while erecting the PEMB that were supplied by your

51
company. GSC indicated to MBCI that building
components shipped were mislabeled, fabricated
incorrectly, or not shipped at all. To date MBCI refuses to
address any of the issues with the PEMB steel. The
following is an estimated cost for the deficient or
outstanding building components.

1) 168th and 100th building all holes were fabricated
incorrectly to allow the cross bracing for the walls to
pass through the columns. The holes were ¾” and the
bracing is 1-1/4”. GSC is having to drill out with a
mag drill. $8,000.00.

2) 168th and 100th building column line (1-2) missing G-8
spandrel beam, column line (1-2) missing G-1 spandrel
beam, column line (B-C) missing spandrel beam G-11,
column line (F-E) missing spandrel beam G-10. GSC
having to have AISC certified welding shop fabricate
missing steel and deliver to site. $10,000.

3) On grid line L-5 in both buildings the column plate was
installed in the wrong direction. GSC having to take
steel to a AISC certified welding shop and then bring
back to site$5,000.00.

4) Wrong size diameter bolts provided at wind girt
locations. GSC having to purchase bolts through
Fastenal. $1,500.00.

5) 168th and 100th building extension components
fabricated incorrectly that are identified as EB-4. The
mounting plate does not match up to the column bolting
pattern. GSC having to take steel to a AISC certified
welding shop and then bring back to site. $5,000.00.

GSC has requested MBCI to correct deficiencies of which
have been we have been directed that MBCI will not
correct any deficiencies. GSC has been forced to use other
forces to correct in order to minimize delays. MBCI has
also refused to provide detailed invoices on items provided
or legibly mark any materials provided. GSC requests
MBCI come to the jobsite to review. GSC provided a
check to MBCI less 10% of total billed amount until onsite

52
 material could be verified. Now it appears GSC’s worse
fears in that deficiencies and missing material provided by
MBCI are in effect causing delays and increased costs.

(R4, tab 177 at 3312-13) (emphasis added) On March 7, 2014, Mr. Reeves wrote to
Mr. McKnight:

Govt dies [sic] not have to request my removal, I will leave
tomorrow . I knew this was heading down this way and of
course I will need to be the fall guy from scheduling steel
erection to other activities even though no contractor are
available.

(R4, tab 177 at 3535) (emphasis added) On April 4, 2014, Mr. McKnight wrote to
Mr. Cundey:

U just approved 11k bill for last week to steve Hendrix.
GSC also has another 10k bill for our people working last
week on panels. Total payment is 21k for three panels to
be installed. I am directing u and your staff to give me a
detail time sheet of what that person did every day every
hour. We have spent over 200k getting up the two
buildings steel. This has got to get under control. Does
Jacob he has any responsibility? He needs to know he is
just not responsible for quality but we are looking at him
and you for the overall health of the project.

(R4, tab 177 at 3858) (emphasis added)

On May 21, 2014, Mr. Cundey wrote to Mr. McKnight and to Knight
Architects, GSC’s design firm:

The design build group is holding the project hostage and
creating several issues for my [field] staff. What I cannot
understand is that several of the issues are CA items that
Knight’s is billing for and has not completed. I have
mention to Joe on several occasions that the LEED issues
on both projects are becoming a serious with the COE and
they are holding money until complete. The LEED issue
for the CIF and SSA is not just some small deal. The COE
will not . . . release withholdings for the SSA until the
website is set up and data entered. When I talked to Joe
last I informed him that the LEED website data had not

53
 been started at all for the SSA. . . . No site visits have
been made for the SSA over the duration of the project.
(thought this was a part of CA fees) It appears that DOR
missed the PEMB coordination with the exterior walls.

(R4, tab 177 at 4606) Knight Architects wrote back, under the subject line “Knight
Architects refusal to work for no money!”:

As I have said, I would have been happy to visit the site,
but it is your construction site and we don’t just show up. .
. . As you know, we have billed you at 50% completion for
the Construction Administration. After this, GSC will still
owe us $5,555 per our conversation on March 21 (an
explanation of which was included in the email I sent you
last Friday at 2:26 PM), $500 on our original design fee
plus the remaining $23,000 on our CA fees. The difficulty
we have had in the past with getting paid by GSC doesn’t
encourage me to gamble our professional time on your
work; we have completed an extensive amount of effort on
Construction Administration and have no indication that
you are planning to pay us! We, like you, need to be paid
for our work.

(R4, tab 177 at 4611) Mr. Cundey replied:

I am just making everyone aware that what is included in
the CA fees is not complete. The government will not
release remaining monies on the CIF project until the
LEED documentation is corrected and re-submitted. My
LEED APP has been requesting this information for over
7 months from Knights. The government is now
withholding money on the SSA project for the LEED
documentation that was suppose[d] to be entered into the
website during the 100% design over a year ago. It
appears that you are billing for design requirements that
have not been completed. Holding this project hostage
when there are outstanding items on your end included in
this billing is just going to hold up the outstanding monies
longer.

(R4, tab 177 at 4610) (emphasis added) Knight Architects replied: “Okay- I will look
into it. I was not aware that the LEED Documentation you mentioned is 7 months
overdue until just now. Can you forward me one of the memos you have received on

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this?” (R4, tab 177 at 4610) Mr. Cundey reacted to Knight Architect’s response by
writing to Mr. McKnight: “I am at my wits end. Please resolve” (R4, tab 177
at 4616).

5. Expert opinions

a. Mr. McAfee, GSC’s Delay Expert

According to Mr. McAfee, GSC’s delay expert, (1) construction to the building
pad was delayed 65 days (tr. 7/75); (2) a “fire water flow test” was delayed 22 days
(tr. 7/94-95); and (3) “cold form metal framing” was delayed 134 days (tr. 7/106).
During the hearing, Mr. McAfee did not opine on any delay to “Electrical Design
No. 3” (tr. 7/8-159).12 In support of Mr. McAfee’s opinion, GSC entered into the
record as demonstrative exhibits eight “windows” that Mr. McAfee created (demo.
exs. 58-65; tr. 7/59-108). In “Window 0” (WIN00), Mr. McAfee used the
government-approved schedule as his baseline, and added to that schedule some
federal holidays that had been omitted from the schedule (tr. 7/59-61; demo. ex. 58).
That schedule shows the critical path through the project as the parties saw it on the
windows data date, September 26, 2012, before any work was started (demo. ex. 58;
tr. 7/67). It shows a start date of September 26, 2012; a finish date of January 29,
2014; a data date of September 26, 2012; and a run date of July 5, 2015 (demo ex. 58).
It shows (1) the notice to proceed issued on September 26, 2012; (2) the 100th
building pad as the first critical activity (depicted as a red bar (tr. 7/62)), starting on
September 26, 2012, finishing (“ready”) on January 24, 2013, and labeled
“Infrastructure prepare Bldg Pads 100th”; and (3) exterior wall framing 168th
becoming critical on September 3, 2013, and finishing on September 16, 2013 (id.). It
does not identify a “fire water flow test” as an activity, critical or otherwise (id.).

Window 1 (WIN01) shows the critical path through the project as of March 7,
2013 (demo. ex. 59; tr. 7/69). It shows a start date of September 26, 2012; a finish
date of April 9, 2014; a data date of March 7, 2013; and a run date of July 5, 2015
(demo. ex. 59). It shows (1) the 100th building pad still on the critical path as of
March 7, 2013, starting on September 26, 2012, finishing (“ready”) on April 10, 2013,
and labeled “Infrastructure prepare Bldg Pads 100th”; (2) exterior wall framing 100th
becoming critical on October 15, 2013 and finishing on October 26, 2013; (3) interior
wall framing 100th becoming critical on November 16, 2013, and finishing on
December 6, 2013; (4) exterior wall framing 168th becoming critical on November 18,
2013, and finishing on December 2, 2013; and (5) interior wall framing 168th

12 GSC has clarified that “[t]he Board need not address the Design Revision 3 delay,”
calling it a “non-driving delay” (app. br. in ASBCA No. 59601 at 2, 37);
accordingly, GSC has abandoned any claim based upon “the Electrical Design
No. 3 delay.” See SmithKline Beecham, 439 F.3d at 1320-21.

55
becoming critical on December 3, 2013, and finishing on December 19, 2013 (id.). It
does not identify a “fire water flow test” as an activity, critical or otherwise (id.).

Window 2 (WN02) shows the critical path through the project as of May 9,
2013 (demo. ex. 60; tr. 7/78). It shows a start date of September 26, 2012; a finish
date of July 1, 2014; a data date of May 9, 2013;13 and a run date of July 5, 2015
(demo. ex. 60). It shows (1) the 100th building pad still on the critical path as of
May 9, 2013, starting on April 16, 2013, and finishing (“ready”) on July 15, 2013; and
labeled “COE DIRECTS GSC – BUILD PADS”; (2) exterior wall framing 168th
becoming critical on February 18, 2014, and finishing on March 1, 2014; and
(3) interior wall framing 168th becoming critical on March 3, 2014, and finishing on
March 19, 2014 (id.). It does not identify a “fire water flow test” as an activity, critical
or otherwise (id.).

Window 3 (WIN03) shows the critical path through the project as of July 11,
2013 (demo. ex. 61; tr. 7/84). It shows a start date of September 26, 2012; a finish
date of July 7, 2014; a data date of July 11, 2013; and a run date of July 9, 2015
(demo. ex. 61). It shows (1) the building pads on the critical path as of July 11, 2013,
starting on July 13, 2013, finishing with respect to the 100th (“ready”) on July 18,
2013; and labeled “GSC Continues BUILD PADS”; (2) exterior wall framing 168th
becoming critical on February 22, 2014, and finishing on March 5, 2014; (3) interior
wall framing 168th becoming critical on March 6, 2014, and finishing on March 22,
2014 (id.). It does not identify a “fire water flow test” as an activity, critical or
otherwise (id.).

Window 4 (WN04) shows the critical path through the project as of August 8,
2013 (demo. ex. 62; tr. 7/89). It shows a start date of September 26, 2012; a finish
date of July 18, 2014; a data date of August 8, 2013; and a run date of July 9, 2015
(demo. ex. 62). It shows (1) the 100th building pad finished (“ready”) as of August 8,
2013; and (2) exterior wall framing 168th becoming critical on March 4, 2014, and
finishing on March 17, 2014 (id.). It does not identify a “fire water flow test” as an
activity, critical or otherwise (id.).

Window 5 (WN05) shows the critical path through the project as of
November 13, 2013 (demo. ex. 63; tr. 7/93). It shows a start date of September 26,
2012; a finish date of August 9, 2014; a data date of November 13, 2013; and a run
date of July 9, 2015 (demo. ex. 63). It shows a “flow test” becoming critical on
October 25, 2013, and finishing February 28, 2014, and labeled as “FLOW TEST
DELAY: WATERLINE REPLACEMENT BY OTHERS” (id.). Mr. McAfee added

13 Mr. McAfee explained that the data date is “a schedule update provided by the
contractor with the dates of actual performance agreed to by the parties”
(tr. 7/79; see tr. 7/82).

56
the activity “COE DIRECTS GSC – BUILD PADS” to the schedule (tr. 7/128). The
February 28, 2014 finish date is “a guess into the future” on the part of Mr. McAfee
(tr. 7/129). According to Mr. McAfee, the fire flow test delay had no effect on the
erection of structural steel (tr. 7/132).

Window 6 (WN06) shows the critical path through the project as of January 4,
2014 (demo. ex. 64; tr. 7/97). It shows a start date of September 26, 2012; a finish
date of October 6, 2014; a data date of January 4, 2014; and a run date of July 9, 2015
(demo. ex. 64). It shows (1) exterior wall framing 100th becoming critical on
March 27, 2014, and finishing on April 15, 2014; (2) interior wall framing 100th
becoming critical on May 5, 2014, and finishing on May 21, 2014 (id.). It shows a
“flow test,” labeled as “FLOW TEST DELAY: WATERLINE REPLACEMENT BY
OTHERS,” unfinished but no longer critical as of January 4, 2014 (id.). Mr. McAfee
explained that because of Window 6A, Window 6 can be ignored (tr. 7/108).

The final window, Window 6A (WN06A), shows the critical path through the
project as of January 4, 2014, incorporating a “design basis threat” produced by the
government after Mr. McAfee submitted his schedule analysis (demo. ex. 65; tr. 7/101,
103, 141). It shows a start date of September 26, 2012; a finish date of December 21,
2014; a data date of January 4, 2014; and a run date of September 19, 2015 (demo.
ex. 65). It shows (1) “COE REVIEW DELAY COLD FORMED METAL
FRAMING,” becoming critical on January 4, 2014, and finishing on May 6, 2014;
(2) exterior wall framing 100th becoming critical on June 7, 2014, and finishing on
June 26, 2014; and (3) interior wall framing 100th becoming critical on July 17, 2014,
and finishing on August 2, 2014 (id.).

Mr. McAfee provided the following answers to the following questions:

Q [Y]our methodology is susceptible to manipulation due
to modeling if only one party’s delays are considered,
since the method cannot account for the impact of delays
not explicitly inserted. Do you agree with that?

A To the extent that the other party’s delays are not in the
schedule, yes.

(Tr. 7/34)

Mr. McAfee also said the following:

Q And it’s your testimony that the critical path shifted to
fire protection in October of 2013. Is that correct?

57
 A Yes.

(Tr. 7/130) In addition, Mr. McAfee would not agree that in order to be compensable,
a delay would have to be on the critical path (tr. 7/117).

Mr. McAfee also answered the following:

Q Okay. If you go to page 81 of this document, several
caveats are described, and Ms. Darr quoted one in her
questioning of you. How did you take into account these
caveats when performing your analysis?

A Well, the first one, because it does not rely on as-built
data, it’s hypothetical. What I did for the delays is to go
into the record to establish what the project record said
about various things. So when I would come up with a
date, it would be based upon what’s actually in the record
or estimation of durations for remaining activity, which is
based upon professional judgment, estimation, experience,
years of experience.

(Tr. 7/48)

Mr. McAfee also answered the following:

MS. DARR: Okay.

THE WITNESS: I believe you asked if I added activities.
Was that it?

BY MS. DARR:

Q You added activities?

A I think you asked me if I added activities.

Q Yes. Did you?

A Yes, because the delays were not allowed to be
presented contemporaneously in the schedule.

Q Okay.

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 A So I put them in there.

(Tr. 7/40; see also tr. 7/120-21, 128-29, 133-35, 138, 153)

b. Mr. Ockman, the Government’s Delay Expert

According to Mr. Ockman, (1) the project was delayed 85 days by the late
submittal of the “foundation/civil design package”; 96 days by late submittal of an
acceptable contractor quality control plan; 105 days by late finish of “100th
Warehouse footing/slab on grade”; and 68 days by slow progress with “100th
Warehouse metal building erection”; for a total of 354 days (demo. exs. 11 at 52, 12
at 3-4; tr. 4/67-131). Also according to Mr. Ockman, (1) at the time of termination on
June 18, 2014, the project was less than half finished; (2) it took GSC four months to
submit its foundation design, compared to the five weeks in its proposal schedule;
(3) it took seven months to place the foundation concrete, compared to the ten weeks
that GSC originally planned; (4) once “the 100th warehouse” foundation was ready for
metal building erection, it took five months to erect the framing, roof panels, and
sheathing, part of that projected, versus the eleven weeks originally planned; and
(5) GSC would not have completed the project until sometime around August 2015
(see tr. 4/93).

On cross-examination, Mr. Ockman admitted that (1) in adjusting GSC’s
proposed schedule by changing the notice to proceed (NTP) date from the May 2012
date that GSC used to the actual September 2012 notice to proceed date, he did not
make any separate adjustment “for weather days based on an NTP starting in September
instead of May”; (2) he input the activities that he found critical, and not “the exact
activities from GSC’s schedule”; (3) he didn’t have any cost-loading or resource-
loading information for the initial, proposed project schedule, even though resource-
loading information “tells [one] the resources [one] need[s] to dedicate to each
activity,” and didn’t add either cost-loading or resource-loading to his “revised or
recreated” schedule; (4) his schedule does not show “the pad being turned over” on
January 24, 2013, even though “you have to finish the building pad before you can do
foundations”; (5) “if the pad is getting turned over 120 days after NTP, we would go
120 days from September 26, 2012,” to January 24, 2012; (6) a 1999 article he co-wrote
states “[h]ypothetical impacted as-planned network delay analysis which do not take
into account actual events on the project as they evolve are unacceptable methods to
evaluate the impact of project delays,” (7) the same article states “[t]he logic network
necessarily must reflect a plan that takes into account physical contraints, preferential
logic, and commitment of a certain level of resources”; (8) his proposal schedule
“doesn’t have any resources in it”; (9) the same article states “CPMs that do not include
reasonable resource leveling and appropriate logic constraints are unrealistic and do not
provide a basis for evaluating project delays”; (10) the recreated proposed schedule that
he used as the basis for his analysis doesn’t have any resource leveling; and (11) “there

59
is no logic restraint in [his] recreated proposal schedule [] for the [] building pad
turnover” (tr. 4/147-64). Mr. Ockman attempted to distance himself from the statement
in the article that he co-wrote that “CPMs that do not include reasonable resource
leveling and appropriate logic constraints are unrealistic and do not provide a basis for
evaluating project delays,” by claiming that “that portion was written by” his co-author,
and that he (Mr. Ockman) “would not have written it the way [his] co-author wrote it”
(tr. 4/161-62).

On cross-examination, Mr. Ockman also admitted (11) that the article he co-wrote
states, referring to “the importance of looking at the logic behind a schedule,” that
“[f]requently, these schedules appear to be in excellent condition from the outside.
However, a detailed examination often exposes a flawed, if not useless, schedule . . . .
[t]he predictable result is that this information is not available in print on the majority of
projects today. This means that the logic underlying most schedules today is hidden from
all project participants unless they work directly with the computer”; (12) his opinion in
these appeals is the first that he remembers “using a proposal schedule to analyze a job”;
(13) another article he wrote states, referring to an approved schedule, “[o]nce a
reasonable as-planned schedule has been approved, it becomes the benchmark for
measuring contractor and owner performance on the project”; (14) he “didn’t use the
approved schedule to analyze GSC’s claims”; that same article states “[w]ith a proper
scheduling specification, the approved schedule becomes a benchmark for assessing the
contractor’s performance throughout the project”; (15) the schedule specification for the
project is a reasonable scheduling specification; (16) his article states that the approved
schedule “is the basis for negotiating equitable time extensions for changes and owner-
caused delays, and thus, vital for determining equitable compensation for delay damages .
. . [a]s the benchmark for measuring performance, the schedule also becomes the owner’s
most effective tool or weapon for keeping the project on schedule”; (17) he didn’t use the
approved schedule; (18) his article states “[i]f a contemporaneous original progress
schedule was prepared and particularly if the original progress schedule was approved by
the owner, the original progress schedule, with appropriate adjustments to make it
reasonable, if required, becomes the reasonable as-planned schedule”; (19) he didn’t take
the approved schedule and make adjustments to that schedule; (20) his article states
“[t]he reasonable as-planned schedule is the benchmark for measuring the impact of
subsequent changes or delays,” and that is because “whatever the reasonable as-planned
schedule is, that’s what forms the foundation for your analysis”; (21) he ran his analysis
using the approved schedule after being deposed regarding his expert report, without
revising his expert report; (22) the recreated proposed schedule that he used as the basis
of his analysis has 80 activities, whereas GSC’s proposed schedule had about 150
activities, and the approved schedule had 342 activities; (23) the activity descriptions in
his recreated proposed schedule do not match the activity descriptions in the approved
schedule; (24) “[i]f there’s not an exact activity match for erecting the building structure,
then there’s no way to track progress unless you assume other activities cover the
proposal work”; (25) he hadn’t “done an analysis of the impact of GSC having to design

60
a building pad”; and (26) he did not make any adjustment “to the schedule to take into
account a monolithic pour” of the kind used when installing a “Wafflemat” slab (which
slab GSC proposed for the project (tr. 4/254)) (tr. 4/165-84).

On cross-examination, Mr. Ockman also admitted that (27) he did not include
any delayed fire protection in his analysis; (28) he opined in his report that GSC
poured concrete on November 20, 2013, before there was an approved submittal;
(29) he did not look at how long the cold-formed metal framing submittal took to get
approved; and (30) he did not give time to GSC for roof panels that were damaged by
another government contractor (tr. 4/192-93, 198, 203).

Mr. Ockman has received a mixed reaction from this Board. In John C.
Grimberg Co., ASBCA No. 58791, 18-1 BCA ¶ 37,191 at 181,041, the government
employed Mr. Ockman; there, the Board found that “a considerable portion of
Mr. Ockman’s analyses” was “fundamentally flawed” and in other respects “without
merit.” In Curry Contracting Co., ASBCA No. 53716, 06-1 BCA ¶ 33,242 at
164,748, the Board found Mr. Ockman’s analysis “generally to be correct.” Here, the
many discrepancies recited above that were elicited by the cross-examination of
Mr. Ockman make his opinion unreliable, unhelpful, and not credible. Of them, two
are the most devastating. First, Mr. Ockman failed to employ a methodology that he
co-wrote was essential to a delay analysis: the use of an approved, as-planned
schedule. Accord THEODORE J. TRAUNER ET AL., CONSTRUCTION DELAYS 16, 44
(1990) (“The analyst must carefully choose the schedule that best represents the
project as-planned schedule. . . . If the Contractor submits the schedule a second and
third time until it is finally accepted by the Owner, chances are that the third schedule
submission best represents the as-planned schedule for the Project. . . .”). Second, he
attempted to lay that discrepancy at the feet of his co-author.
DECISION

By way of excuse for its default, GSC claims entitlement to 321 days of
excusable delay (258 days of which GSC says are compensable), that it says result in
an extended contract completion date of December 21, 2014, some six months after
the termination of the contract, based upon three discrete alleged delays: (1) a 165-day
delay to the “building pad” (165 days excusable, 160 days compensable); (2) a 22-day
delay to the “fire water flow test” (all excusable and compensable); and (3) a 134-day
delay to “cold form metal framing” (134 days excusable, 76 days compensable) (app.
resp. in ASBCA No. 59402 at 33; app. br. in ASBCA No. 59601 at 2, 34, 37). GSC’s
delay claims total $328,293.82 in site overhead expenses for the 252 days of allegedly
compensable delay at a rate of $1,302.75 per day (app. br. at 2; tr. 1/38).

61
 A. Standards for Evaluating Delay Claims

The critical path is the longest path in the schedule on which any delay or
disruption would cause a day-for-day delay to the project itself; those activities must
be performed as they are scheduled and timely in order for the project to finish on
time. Wilner v. United States, 23 Cl. Ct. 241, 245 (1991). In Yates-Desbuild Joint
Venture, CBCA No. 3350 et al., 17-1 BCA ¶ 36,870, our sister board compiled an
excellent and very helpful synopsis of the standards for evaluating delay claims, which
I adopt nearly verbatim among the discussion that follows.

To the extent that the government that delays a contractor’s work and increases
its costs, the contractor may seek compensation for its damages. Yet, the mere fact
that there is some delay to some aspect of planned contract work is not enough to
establish that the contractor’s ultimate contract performance costs or time increased.
In evaluating the effect of government-caused delays on the contractor’s ultimate
performance time and cost, tribunals generally look to the critical path of contract
performance, a method of delay analysis that the United States Court of Claims
explained as follows:

Essentially, the critical path method is an efficient way of
organizing and scheduling a complex project which
consists of numerous interrelated separate small projects.
Each subproject is identified and classified as to the
duration and precedence of the work. (E.g., one could not
carpet an area until the flooring is down and the flooring
cannot be completed until the underlying electrical and
telephone conduits are installed.) The data is then
analyzed, usually by computer, to determine the most
efficient schedule for the entire project. Many subprojects
may be performed at any time within a given period
without any effect on the completion of the entire project.
However, some items of work are given no leeway and
must be performed on schedule; otherwise, the entire
project will be delayed.

Yates-Desbuild, 17-1 BCA ¶ 36870 at 179,684-85 (quoting Haney v. United States,
676 F.2d 584, 595 (Ct. Cl. 1982)).

Where the time frame for performance of an activity, set by the earliest possible
start time and the latest possible finish time, establishes a time interval equal to the
expected activity duration, the activity is termed “critical,” and no discretion or
flexibility exists in the scheduling of that activity. Items of work for which there is no
timing leeway are on the critical path, and a delay, or acceleration, of work along the

62
critical path will affect the entire project. Specifically, then, to prevail on its claims for
the additional costs incurred because of the late completion of a fixed-price
government construction contract, a contractor must show that the government’s
actions affected activities on the critical path. Typically, if work on the critical path is
delayed, then the eventual completion date of the project is delayed. Conversely, a
government delay that affects only those activities not on the critical path does not
delay the completion of the project. As a result, the determination of the critical path
is crucial to the calculation of delay damages. Id. at 179,685.

To satisfy its burden, the contractor must establish what the critical path of the
project actually was and then demonstrate how excusable delays, by affecting
activities on the contract’s critical path, actually impacted the contractor’s ability to
finish the contract on time. This is done through an analysis to show the
interdependence of any one or more of the work items with any other work items as
the project progressed. One established way to document delay is through the use of
contemporaneous Critical Path Method (CPM) schedules and an analysis of the
effects, if any, of government-caused events. In fact, in situations where the contractor
utilized Primavera scheduling software to create schedules throughout the life of the
project, it would be folly to utilize some other method of critical path analysis. Id.

Because the critical path of construction can change as a project progresses,
activities that were not on the original critical path subsequently may be added, and, to
preclude post hoc rationalization and speculation, it is important that the
contemporaneous schedules that the contractor uses to show critical path delay are
updated throughout contract performance to reflect changes as they happened.
Accurate, informed assessments of the effect of delays upon critical path activities are
possible only if up-to-date CPM schedules are faithfully maintained throughout the
course of construction. Id.

Nevertheless, the existence of contemporaneous schedules does not permit a
tribunal to ignore, or fail to consider, logic errors in those schedules. A CPM
schedule, even if maintained contemporaneously with events occurring during contract
performance, is only as good as the logic and information upon which it is based.
CPM is not a “magic wand,” and not every schedule presented will or should be
automatically accepted merely because CPM technique is employed. To be a reliable
basis for determining delay damages, a CPM schedule must reflect actual performance
and must comport with the events actually occurring on the job. Tribunals may need
to inquire into the accuracy and reliability of the data and logic underlying the CPM
evaluation in appropriate circumstances and reject CPM analyses if the logic was not
credible or was suspect. Id. at 179,685-86.

Even if the contractor shows delay by the government that affects the critical
path, the contractor must also establish that it was not concurrently responsible for

63
delays. Tribunals will deny recovery where the delays of the government and the
contractor are concurrent and the contractor has not established its delay apart from
that attributable to the government. Nevertheless, any contractor-caused delays must
affect the critical path of contract performance to be considered “concurrent” —
contractor delays that, absent the Government-caused delay, would have had no
negative impact upon the ultimate contract completion date do not affect the
government’s monetary liability. For the same reasons discussed above, because
concurrent delays that do not affect the critical path of contract work do not delay
project completion, an accurate critical path analysis is essential to determine whether
concurrent delays have caused delay damages related to the delayed completion of a
complex construction project. Id. at 179,686.

In establishing excusable delay, the contractor may point to causes outside the
Government’s control. FAR 52.249-10(b)(1), Default, provides a non-exhaustive list
of excusable delays that includes acts of God, acts of a host country government in its
sovereign capacity, fires, floods, epidemics, strikes, and unusually severe weather.14
Obviously, a contractor has no control over whether it rains, whether there is a flash
flood, or whether there are forest fires. Nevertheless, the mere fact that a delay is
caused by a type of activity listed in the contract as generally excusable does not give
the contractor carte blanche to rely upon such excuses. The purpose of the proviso,
which is to protect the contractor against the unexpected, and its grammatical sense
both militate against holding that the listed events are always to be regarded as
unforeseeable, no matter what the attendant circumstances are. A quarantine, or
freight embargo, may have been in effect for many years as a permanent policy of the
controlling government and, if so, may not meet the definition of a cause
“unforeseeable” at the time of contract award, even if quarantines and freight
embargoes are listed in the contract as examples of possible excusable causes of delay.
Id. at 179,686-87.

14 In its July 3, 2014 complaint, GSC alleges that “[t]he Government has not addressed
any of GSC’s correspondence concerning weather delays. Requests for a total
of 49 weather days are currently pending” (July 3, 2014 compl. at 13 ¶ 49).
During the hearing, GSC also pointed to weather delays, as well as “hairpin”
delays (tr. 1/26, 1/29, 1/47-48). Although the record contains evidence that
weather precluded work on some days, GSC’s post-hearing briefing does not
attempt to quantify that delay or to demonstrate how that delay affects the
outcome of these appeals. The Board does not do an appellant’s work for it.
SKE Base Servs. Gmbh, ASBCA No. 60101, 18-1 BCA ¶ 37,159 at 180,903
(“We won’t do appellant’s work for it.”).

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 Further, even if an unforeseeable cause of delay occurs, the contractor cannot
sit back and fail to take reasonable steps in response to it — once such an
unforeseeable event occurs, the contractor affected by it has an obligation to attempt to
mitigate the resulting damage to the extent that it can. If the contractor fails to do so, it
may not recover those damages which could have been avoided by reasonable
precautionary action on its part. Id. at 179,687.

To establish entitlement to an extension based on excusable delay, a contractor
must show that the delay resulted from “unforeseeable causes beyond the control and
without the fault or negligence of the Contractor,” and the unforeseeable cause must
delay the overall contract completion; i.e., it must affect the critical path of
performance. Sauer Inc. v. Danzig, 224 F.3d 1340, 1345 (Fed. Cir. 2000). Similarly,
a contractor’s default is excused only to the extent that there were no additional delays
for which the contractor was responsible (beyond those caused by the government) and
that “there is in the proof a clear apportionment of the delay and the expense
attributable to each party.” See Blinderman Constr. Co. v. United States, 695 F.2d
552, 559 (Fed. Cir. 1982) (quoting Coath & Goss, Inc., 101 Ct.Cl. 702, 714-15 (1944).

However, in order to prove that it is entitled to delay damages in the form of time
or money, a contractor must prove that the government was responsible for specific
delays, overall project completion was delayed as a result of the government-caused
delays, and any government-caused delays were not concurrent with delays within the
contractor’s control. L.C. Gaskins Constr. Co., ASBCA No. 58550 et al., 18-1 BCA ¶
36,978 at 180,121-22. If an event that would constitute an excusable cause of delay in
fact occurs, and if that event in fact delays the progress of the work as a whole, the
contractor is entitled to an extension of time for so much of the ultimate delay in
completion as was the result or consequence of that event, notwithstanding that the
progress of the work may also have been slowed down or halted by a want of diligence,
lack of planning, or some other inexcusable omission on the part of the contractor.
Chas. I. Cunningham Co., IBCA No. 60, 57-2 BCA ¶ 1,541 at 5,843.

A contractor is entitled to time extensions for government-caused delays and
excusable delays, even when they are concurrent with contractor-caused delay. When
a contractor is seeking extensions of contract time, for changes and excusable delay,
which will relieve it from the consequences of having failed to complete the work
within the time allowed for performance, it has the burden of establishing by a
preponderance of the evidence not only the existence of an excusable cause of delay
but also the extent to which completion of the contract work as a whole was delayed
thereby. The contractor must prove that the excusable event proximately caused a
delay to the overall completion of the contract, i.e., that the delay affected activities on
the critical path. And it must also establish the extent to which completion of the
work was delayed—it is entitled to only so much time extension as the excusable

65
cause actually delayed performance. R.P. Wallace, Inc. v. United States, 63 Fed. Cl.
402, 409-10 (2004).

Thornier issues are posed by concurrent or sequential delays—the first
occurring where both parties are responsible for the same period of delay, the second,
where one party and then the other cause different delays seriatim or intermittently.
Concurrent delay is not fatal to a contractor’s claim for additional time due to
excusable delay, but precludes the recovery of delay damages. If a period of delay can
be attributed simultaneously to the actions of both the Government and the contractor,
there are said to be concurrent delays, and the result is an excusable but not a
compensable delay. A contractor generally cannot recover for concurrent delays for
the simple reason that no causal link can be shown: A government act that delays part
of the contract performance does not delay the general progress of the work when the
prosecution of the work as a whole would have been delayed regardless of the
government’s act. Id.

B. Did GSC’s subcontractors cause the termination?

As the government points out (gov’t brief in ASBCA No. 59402 at 9, 26-28;
gov’t resp. in ASBCA No. 59601 at 26) but GSC’s briefing ignores, in
September 2014, GSC wrote to three of its subcontractors – Mitchell Acoustics, TTG,
and Steel Resources – blaming them for its problems. GSC accused Mitchell
Acoustics of causing the default termination by delaying the work, and of causing
GSC $2.1 million in losses. It accused TTG of playing a “key role” in the delay of the
project and the termination of the contract, and blamed TTG of causing $2,453,000 in
losses to GSC. It accused Steel Resources of “seriously delaying the project
schedule,” of abandoning the project, and of causing monetary losses to GSC.

Even before September 2014, GSC had been complaining to its subcontractors
about their performance, and non-performance, and about the delays they were causing
to progress on the project. In March 2014, GSC accused TTG of “[a]bandoning the
project.” In June 2014, GSC accused Mitchell Acoustics of “lost production time,”
“tak[ing] equipment off of the project,” of being “not even half way complete with the
studs and not even a quarter of the way complete with the sheathing,” and of having
employees on-site whose production was “a joke.” GSC said of Mitchell Acoustics in
June 2014 that “[i]f the individuals you have on-site now are the experienced crew you
mention last week then we have a major problem,” and confessed that it was
“extremely concerned and perplexed about the lack of urgency.” In June 2014, GSC
accused Mitchell Acoustics “manpower and production issues,” of having “fallen
(2) weeks behind the original completion date for the 168th exterior studs and is at
least (3) weeks behind on the 100th exterior studs,” of being “not even half way
completed with the 168th building,” and pointed out that “the 100th building has
barely started,” predicting that “Mitchell Acoustics will need to almost double the

66
current crew to make up for the slow production.” Indeed, Mr. Cundey confirmed in
his testimony that Mitchell Acoustics “was not properly manning the project” and that
“the time it was taking Mitchell to frame and sheath was unacceptable.”

In November 2013, more than six months before the termination, GSC accused
Steel Resources of understaffing the project, and that erection crews were “seriously
delaying the project schedule,” and having “no erection crews on site,” and threatened “to
acquire outside forces to complete Steel Resources’ scope of work.” In December 2013,
GSC accused Steel Resources of causing damages to GSC by violating its contract,
reminded an attorney of Steel Resources that the contract “clearly states that Steel
Resources is not to delay project [sic] for disagreements on payment,” and expressed its
hope that the attorney “will work with GSC to try and finish your contract work as soon
as possible.” Also in December 2013, GSC accused Steel Resources of “abandoning the
project,” told Steel Resources that GSC had “rented [a] great amount of equipment,” and
promised that Steel Resources would “be held accountable for this and delay cost.” GSC
even accused Steel Resources of having “tried to sabotage the project by giving false
information.” GSC promised that unless Steel Resources proved that it would “complete
[the] contract,” it would “make [GSC’s] attorney very rich to make u pay for doing what
u did to GSC,” accused Steel Resources of having “had no intentions of completing [the]
project,” and that GSC had instructed its attorney to get GSC “into mediation ASAP and
then arbitration so GSC can recover losses.”

The above-referenced communications from GSC to Mitchell Acoustics, TTG,
and Steel Resources are admissions, against GSC’s interest, that those subcontractors
delayed GSC’s progress on the project and caused GSC monetary loss, and, based
upon those admissions, I find that those subcontractors caused the termination of the
contract for default and, together, more than $4,553,000 in losses to GSC. See
generally Raytheon Co., ASBCA No. 57743, 16-1 BCA ¶ 36,335 at 177,147
(distinguishing between evidentiary admissions and judicial admissions). Cf. Reliable
Contracting Grp. v. Dep't of Veterans Affairs, 779 F.3d 1329, 1334-35 (Fed. Cir.
2015) (contractor’s contemporaneous admissions were probative evidence that
generators did not comply with the contract; citing cases); ITT Gilfillan Div., ASBCA
No. 37834, 92-1 BCA ¶ 24,490 at 122,227-28 (statement in Turkish Air Force report
that radar was “operational but degraded” was admission against interest proving radar
was capable of passing contractually-required operational test); Milam Builders, Inc.,
ASBCA No. 29700, 85-1 BCA ¶ 17,709 at 88,376 (“Appellant has claimed $1,573
although its evidence did not establish this amount; accordingly, the amount estimated
by the Government will be considered an admission against interest. Appellant is
therefore entitled to $1,542.”); Phillips Constr. Co., ASBCA No. 5831, 70-2 BCA
¶ 8,363 at 38,893 (“The testimony of 75 days delay was therefore in the nature of an
admission against interest or at least in diminution of appellant’s principal case.”);
Larco-Indus. Painting Corp., ASBCA No. 14647, 73-2 BCA ¶ 10,073 at 47,325 (“In
an admission against interest, Mr. Parks before his departure on 11 December 1969

67
from Fort Chaffee told Mr. Roberts that respondent had as much of a problem with
personnel as did the contractor (app. ex. No. 47; para. 7, supra). We accept his
appraisal.”).

Mr. McKnight’s efforts to distance himself from the contents of his letter to
TTG with protestations of “limited information” are not persuasive. Mr. McKnight
wrote that letter after GSC submitted to Mr. Kloeckler a claim blaming the
government for delaying the work, and contemporaneously with GSC filing
complaints in these appeals also blaming the government. Moreover, the
contemporaneous correspondence, much of it authored by Mr. McKnight himself,
demonstrates that GSC was well aware of what was happening on the project. As
early as December 2013, Mr. McKnight knew enough to predict that it would “take
another 10 months to complete” the project, citing that GSC had “not even completed
concrete,” and had “4 [quality control] people on this project and only 60% of
submittals complete after 1 year” (R4, tab 177 at 2532). Nor can GSC claim “limited
information” with respect to its admissions regarding delays caused by Steel
Resources; GSC knew enough to go to an attorney, who evidently had enough
information as early as December 9, 2013, to write to Steel Resources to demand
mediation and arbitration. By contrast to Mr. McKnight, Mr. Cundey made no effort
to distance himself from his contemporaneous criticism of Mitchell and TTG,
essentially confirming and reiterating his opinion that, in 2014, Mitchell’s work had
been unacceptable and behind schedule, and TTG had abandoned the project.

In September 2014, nearly two years before the hearing, GSC blamed its
subcontractors for delaying the work and, therefore, causing the termination of the
contract. That is a significant admission against GSC’s interest, which is
presumptively dispositive of this issue and unrebutted: GSC’s subcontractors caused
GSC’s default, making GSC responsible for that default, which is, therefore, not
excused. See Snyder v. Dravo Corp., 6 F.R.D. 546, 553 (W.D. Pa. 1947) (admission
against interest created presumption of entitlement in favor of opponent); see, e.g.,
Blake Constr., Co., ASBCA No. 36307, 90-2 BCA ¶ 22,889 at 114,941 (“the
Government’s focus on a particular letter and particular terminology therein is too
narrow and isolated. It is more appropriate to examine the entirety of the claim letter,
and to do so in the context of all events including the earlier correspondence
referenced therein. . . . An ‘admission against interest’ by a party may not be
conclusive proof but a rebuttable presumption, subject to additional evidence.”)
(emphasis added); W.G. Yates & Sons Constr. Co., ASBCA No. 49398,
01-2 BCA ¶ 31,428 at 155,192 nn. 2-3 (“For continuity and as an admission against
interest we cite the amount claimed by Yates in its brief as the equitable adjustment
claimed.”); Daly Constr., Inc., ASBCA No. 32457, 87-3 BCA ¶ 20,182 at 102,151
(“while the contract administrator’s letter may not bind the Government contractually
to the indicated time extension, it is a significant admission against interest of the
Government. This admission is sufficient by itself to establish Daly’s prima facie

68
entitlement to the indicated extension, shifting to the Government the burden of
showing that its contract administrator’s assessment was not correct. The Government
has failed to meet that burden.”); Maxwell Dynamometer Co., ASBCA No. 5974, 61-1
BCA ¶ 2,896 at 15,129 (“The ‘regular 1960 price list’ referred to in the above
quotation is simply a ‘Price Schedule’ and does not appear to impinge on the
suggestion of the Government that the contractor’s brochure constitutes an admission
against interest that it is commercially feasible to offer to the public a Chassis
Dynamometer capable of absorbing 275 horsepower up to 90 miles per hour
notwithstanding the unit is equipped with 8 1/2″ rollers.”); Fluor Corp., ASBCA
No. 13166, 69-1 BCA ¶ 7,626 at 35,418 (“Thus we find full support for the
subcontractor’s estimate of manhours expended for these changes and purchase orders
and there stands as an admission against interest the 1,000 hours attributed to other
Fluor purchase orders.”). See also, Fairfield Science Corp., ASBCA No. 21151,
78-1 BCA ¶ 13,082 at 63,911 (Watkins, Bayus, A.J.J., dissenting, concerning
admission under oath and quoting C.J.S. § 382: “If voluntarily made, and distinct and
unequivocal, admissions against interest are taken or presumed to be true, and dispense
with the necessity of any other proof of the fact admitted, although it does not render
other proof of the fact incompetent.”); Morganti Nat’l, Inc. v. United States, 49 Fed.
Cl. 110, 135 (2001), aff’d, 36 F. App’x 452 (Fed. Cir. 2002) (finding that
subcontractor’s departure had a significant time impact on contractor’s ability to
perform in a timely manner, and noting that contractor “admitted as much” in response
to order to show cause, in which contractor stated: “Given the very significant scope
and critical path nature of the work covered by [subcontractor’s] contract . . . a severe
impact to our progress as a result of that abandonment was unavoidable”); Parsons
Evergreene, LLC, ASBCA No. 58634, 18-1 BCA ¶ 37,137 at 180,814 (denying
contractor’s delay claim where contractor’s expert did not address comment in the
contemporaneous notes that activity was no longer on the critical path). Cf. Gulf
Contracting, Inc., ASBCA No. 30195 et al., 89-2 BCA ¶ 21,812 at 109,759, aff’d, 23
Cl. Ct. 525 (1991) (concluding that problems with subcontractor and subcontractor’s
quality control and workmanship problems contributed significantly to the late
completion and increased cost of the project); aff’d, 972 F.2d 1353 (Fed. Cir.) (table)
(June 5, 1992).

In addition, GSC’s statements on this issue undermine the credibility of its
current positions. GSC has blamed both its subcontractors and the government for
delaying the work and causing the termination for default. In other examples of
shifting positions, in November 2013, Mr. McKnight wrote to Steel Resources,
accusing it of liability for “delays and cost,” and demanding “mediation and arbitration
per contract to resolve.” Then, during the hearing in 2017, Mr. McKnight deflected
regarding that letter, testifying that he was “trying to motivate [Steel Resources] to
perform.” Similarly, in December 2013, Mr. McKnight wrote to Steel Resources that
“GSC will experience great unnecessary losses completing your contract work. I will
let my attorneys explain this and why [Steel Resources] abandoned [the] project,”

69
threatening to “make [his] attorney very rich to make [Steel Resources] pay for doing
what [Steel Resources] did to GSC.” Then, testifying in 2017, Mr. McKnight denied
that problems with Steel Resources abandoning the project were “one of the significant
reasons why [GSC] was experiencing delays.” In addition, in December 2013, GSC
understood that it would take another ten months–that is, until October 2014–to
complete the project, but in January 2014, only a month later, GSC told the
government that it “feels confident that it can complete the project by June 9, 2014.”15

15 The government has its own credibility issues in these appeals. In a remarkable
move, government counsel elicited from Mr. Adams, another contractor to the
government (a construction manager), testimony that ended with Mr. Adams
slurring Mr. McKnight from the witness stand with the characterization that
Mr. McKnight was “a cross between a cheap thug and a used car salesman.”
Although GSC uses Mr. Adams’s slur as the banner of one of its briefs (app.
resp. at 1), the government’s use of Mr. Adams to slur Mr. McKnight like that
takes one aback (see tr. 4/234). NXIVM Corp. v. O’Hara, 241 F.R.D. 109, 114
n.5 (N.D.N.Y. 2007); cf. Martin Oboler, 61-1 BCA ¶ 3,085 at 16,009.

Also regarding the credibility of the government’s presentation, another government
witness, Mr. Braghini, testified to what he agreed “wasn’t a very flattering
opinion of GSC’s scheduling ability,” even though he had earlier testified in a
deposition that he had no personal opinion on GSC’s performance, and even
though he testified that he hadn’t changed his mind between his deposition and
testimony before this Board (see tr. 2/95-96). The government’s attempts to
rehabilitate Mr. Braghini on that point were ineffective, particularly in view of
his further deposition testimony that “I really can’t make an opinion of
[appellant’s] scheduling abilities.”

In addition, the government evidently expects us to accept that its tagging certain
Fort Sill projects (including two of GSC’s) with the moniker “The Magnificent
Seven” had “no special significance” and meant nothing at all (Mr. Owens, who
coined the phrase, unpersuasively testified that “[t]here was no meaning” to it),
much less nothing disparaging and not an ironic and sarcastic criticism, even
though the government viewed those projects as its “most significant
challenges” regarding “late completion of projects” and were either “late or
projected to be late.” Given that “The Magnificent Seven” is an iconic 1960
movie depicting seven gunslingers who come to the aid of a town beleaguered
by bandits, see The Magnificent Seven, INTERNET MOVIE DATABASE,
https://www.imdb.com/title/tt0054047/, the government’s benign explanations
are not persuasive, and its efforts to avoid the obvious here (see gov’t reply at
15 & n.27 (citing testimony) & n.28) are not credible.

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 Returning to GSC’s correspondence to its subcontractors, the presumption
raised by those admissions that the subcontractors delayed the work and caused GSC’s
default stands unrebutted. Mr. Phillips testified but never addressed the letter he
wrote, and Mr. McKnight testified but did not disavow his unequivocal 2014
admission that TTG “violated its contract with GSC by delaying the submittals and
approval of the electrical panels on this project.” 16 Moreover, although each party
presented an expert’s delay opinion, I credit neither, and reject both.

GSC says that “[t]he Board should adopt the findings of Richard McAfee,
finding his opinion exhibits the best analysis for GSC’s time related claims” (app. br.
at 31). Mr. McAfee’s “windows” methodology is at least similar to, if not the same as,
that accepted by the United States Court of Federal Claims in George Sollitt Constr.
Co. v. United States, 64 Fed. Cl. 229, 252 (2005):

The better methodology for a critical path delay analysis is
to use the updated CPM schedules, not the baseline
schedule prepared before construction began. . . . [T]he
court will favor [the analysis that] estimated each critical
path delay by inserting a delaying event into the CPM
schedule update closest in time to the alleged delaying
event.

However, as the trier of fact, the Board is not bound by expert testimony. See Sw.
Marine, Inc. San Pedro Division, ASBCA No. 28196, 86-2 BCA ¶ 19,005, at 95,980;
U.S. Eng’g Co., ASBCA No. 28835, 84-2 BCA ¶ 17,305 at 86,241. Gulf Contracting,
23 Cl. Ct. at 529 n.1. Mr. McAfee does not address any of the glaring issues with GSC’s
performance; namely, the several problems that GSC identified with the performance of
three of its subcontractors (Steel Resources, Mitchell Acoustics, and TTG), problems
that GSC evidently saw as so grave that it expressly and specifically blamed two of
those subcontractors (Mitchell Acoustics and TTG) for the termination of its contract for

The government also called to the stand a former GSC employee, Mr. Veltema,
whom GSC successfully impeached with his prior inconsistent statement under
oath on whether a certain GSC QC manager, Jacob Reeves, “could function
independently as QC manager” given that GSC’s project manager, Randy
Reeves, was the father of Jacob Reeves. At the hearing, Mr. Veltema answered
that question in the negative; he immediately admitted that at his deposition he
had answered in the affirmative.
16 Indeed, GSC pointed the finger of blame for delays to the project in many other

directions as well, blaming Mr. Reeves, Boatwright, MBCI, weather, the
hairpin delay, and Knight Architects.

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default, and demanded millions of dollars in compensation from the same two
subcontractors. Cf. Gulf Contracting, Inc., ASBCA No. 30,195 et al., 89-2 BCA
at 109,759 (rejecting expert’s analysis as unreliable because it “systematically excluded
all delays and disruptions except those allegedly caused by the Government,” which
“was inherently biased, and could lead to but one predictable outcome.”); aff’d by 23 Cl.
Ct. 525 (1991), aff’d, 972 F.2d 1353 (Fed. Cir. 1992) (finding “[s]everal factors impair
the credibility of [expert’s] analysis, including that “although [expert’s] analysis
purports to separate government-responsible delays from contractor-responsible delays,
it fails to assign values to contractor-responsible delays,” and that “[expert’s] treatment
of contractor-responsible disruptions to barracks work is not persuasively addressed by
either his testimony or the [expert] report”). Furthermore, Mr. McAfee reviewed GSC’s
complaints in these appeals before he performed his analysis; he knew the delays that
GSC was alleging before he began that analysis, and his analysis identifies the same
delays that GSC claims in these appeals (tr. 7/142-43). That congruence makes
Mr. McAfee’s objectivity suspect. Cf. E. Minerals Int’l, Inc. v. United States, 39 Fed.
Cl. 621, 627 (1997) (“The testimony and conclusions of one expert clearly were
designed to mesh with the Government’s legal theories. His refusal to acknowledge
input from counsel in reaching his conclusions was not credible.”), judgment rev’d on
other grounds, appeal dismissed sub nom. Wyatt v. United States, 271 F.3d 1090 (Fed.
Cir. 2001); Mega Constr. Co. v. United States, 29 Fed. Cl. 396, 433-34 (1993)
(discerning “a strong partisan position by [expert] in favor of plaintiff, in conflict with
one of his duties as an expert witness to objectively assist the court to understand the
facts and issues”).

The analysis of a party’s expert that systematically excludes all disruptions
except those allegedly caused by the party’s opponent, capable of leading to but one
predictable outcome, is inherently biased and totally unreliable; to be credible, a
contractor’s CPM analysis ought to take into account, and give appropriate credit for,
all of the delays alleged to have occurred. Gulf Contracting, 89-2 BCA ¶ 21,812
at 109,759 (finding that contractor failed to assign values to contractor-responsible
delays); George Sollitt, 64 Fed. Cl. at 276 (rejecting claims for additional expenses for
the exterior masonry where even if contractor had proved that unreasonable delays by
the Navy delayed exterior masonry work, contractor did not prove that the Navy-caused
delays were the sole proximate cause of the delayed start to this work, where
contemporaneous documents showed in contractor’s procurement of structural steel,
which also would have delayed the exterior masonry work, and contractor had not
apportioned the delays affecting the exterior masonry work, and the record before the
court lacked the specificity and certainty that would make apportionment feasible).
Here, GSC has admitted that its subcontractors caused the default by delaying its
performance, and a contractor is responsible for the unexplained failures of its
subcontractors. See Williamsburg Drapery Co. v. United States, 369 F.2d 729, 742 (Ct.
Cl. 1966); United Schools of America, Inc., ASBCA No. 38628, 90-3 BCA ¶ 23,199
at 116,426.

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 Indeed, the government specifically relies upon GSC’s admissions (gov’t br. in
ASBCA No. 59402 at 7-9, 27; gov’t resp. in ASBCA No. 59601 at 21); by contrast,
not only does Mr. McAfee not take them into account, GSC makes no real effort to
address them, not even by citing the GSC September 2014 letters upon which the
government relies (see app. resp. at 37). Cf. United States Army Corps of Engineers v.
John C. Grimberg Co., 817 Fed. App’x 960 (Fed. Cir. June 9, 2020) (table) (noting
that appellee did not respond to appellant’s legal contention, and holding, therefore,
that appellee’s “failure to contend with the required legal test is fatal to its claim”);
Sauer Inc. v. Danzig, 224 F.3d at 1346 (affirming Board rejection of delay claims, and
pointing with approval that the Board noted that contractor’s “contemporaneous letters
of complaint make no mention of difficulties encountered specific to crane rail work”);
Morganti, 49 Fed. Cl. at 124, 138, 148 (upholding termination for default and quoting
contractor’s criticism of subcontractor’s work that “[a]ny further delays in the delivery
of the remaining panels will have a disastrous effect on our construction schedule”),
aff’d, 36 F. App’x 452 (Fed. Cir. 2002) (per curiam, unpublished opinion); Curry
Contracting Co., ASBCA No. 53716, 06-1 BCA ¶ 33,242 at 164,748 (criticism of
delay analysis included that expert “did not consider alleged contractor delays”); PCL
Const. Services, Inc. v. United States, 47 Fed. Cl. 745, 803-04 (2000) (rejecting
contractor delay claims and pointing to internal contractor document substantiating
delays attributed to subcontractor); Hoffman Const. Co. of Or. v. United States, 40
Fed. Cl. 184, 199 (1998), aff’d in part, rev’d in part on other grounds, 178 F.3d 1313
(Fed. Cir. Jan. 22, 1999) (unpublished decision) (rejecting contractor delay claims and
pointing to “other potential causes of delay for which the government is not
responsible,” including subcontractor-caused delays). Mr. McAfee’s delay analysis is
rejected.

Mr. Ockman’s opinion also fails to address whether GSC’s subcontractors
caused delays and the termination for default, but the failure to do so by Mr. McAfee
stands out including because GSC itself points out that “a CPM analysis “must ‘take
into account, and give appropriate credit for, all of the delays which were alleged to
have occurred” (app. br. at 30 (quoting Galaxy Builders, Inc., ASBCA No. 50018,
00-2 BCA ¶ 31,040)). Indeed, we have said that to be credible a contractor’s CPM
analysis ought to take into account, and give appropriate credit for all of the delays
which were alleged to have occurred. Gulf Contracting, 89-2 BCA ¶ 21,812 at
109,759; Pathman Constr. Co., ASBCA No. 23392, 85-2 BCA ¶ 18,096 (rejecting
CPM analysis with “built-in bias”).

The purpose of an expert opinion is to help the trier of fact. See Parsons-UXB
Joint Venture, ASBCA No. 56481, 12-1 BCA ¶ 34,919 at 171,695. Presumably, the
Board is not comprised of delay experts, but laypersons on that subject, otherwise
there would be no need for, and we would not entertain, the opinions of delay experts,
much as is the case with respect to experts who might “offer” legal opinions. See id.

73
at 171,695 (“Expert testimony pertaining to issues of law is inadmissible.”). Although
we are to weigh both the expert and other testimony and evidence, we are not
obligated to adopt any particular conclusion or opinion reached by an expert witness,
even if uncontradicted. Reflectone, Inc., 98-2 BCA ¶ 29,869 at 147,829. And we are
free to reject expert testimony that we find intrinsically unpersuasive. Id. Moreover,
the Board may rely upon its own common sense. See id. (parenthetically explaining
Gulf Contracting, Inc., ASBCA No. 30195 et al., 90-1 BCA ¶ 22,393 at 112,521).17
Cf. Morganti, 49 Fed. Cl. at 133 (deferring to parties’ pre-litigation schedule
agreement, despite testimony from both sides’ experts that was at odds with that
agreement). Here, neither Mr. McAfee’s nor Mr. Ockman’s help is ultimately needed,
because we have GSC’s admissions, which neither expert addresses, despite the
substantial evidence in the record that there were problems with how GSC’s
subcontractors performed – or failed to perform – their work. For example, there is
evidence that TTG, Mitchell Acoustics, and Steel Resources may have been
malingering. Steel Resources abandoned the worksite at least once (evidently over
disputes with GSC over payment and concrete deficiencies): on one occasion Steel
Resources told GSC that Steel Resources “will not erect steel on the referenced slab
without evidence of authorization to proceed with erection from the appropriate
engineer of record and Corps of Engineers project administrator.” And a dispute
between TTG and GSC prompted TTG to abandon the work on March 31, 2014: GSC
demanded that TTG make available “the individual who made the decision to abandon
the project,” and complained to TTG that “[a]bandoning the project is not the way to
handle disputes.” There is also evidence–again, from the pen (so to speak) of GSC–
that Mitchell Acoustics did not staff the job properly and had, in GSC’s own words,
“manpower and production issues” and would “need to almost double the current crew
to make up for the slow production.” On June 9, 2014 (which, ironically but perhaps
not coincidentally was the date by which, months earlier, GSC had forecast it would
complete the work), GSC wrote to Mitchell Acoustics, a little more than a week before
the termination, that:

Mitchell Acoustics has now been on this project for
(5) weeks. The original timeline discussed to complete the
exterior studs on the 168th was (15) working days or
(3) weeks. At this point in time we are not even half way
complete with the studs and not even a quarter of the way
complete with the sheathing. . . . The 6 individuals you
had on-site Saturday accomplished more production with
less people. . . . If the individuals you have on-site now are
the experienced crew you mention last week then we have

17 The Civilian Board of Contract Appeals has also expressed these views, citing our
opinion in Reflectone. All Star Metals, LLC, CBCA No. 53, 09-1 BCA
¶ 34,039 at 168,355-56.

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 a major problem. They are making far less production than
when you had 16 people and even making less production
than the 6 individuals that worked this Saturday. I am
extremely concerned and perplexed about the lack of
urgency.

GSC unequivocally accused Mitchell Acoustics of causing a ripple effect of delay
(emphasis added): “I am sorry to take this stance but Mitchel acoustics is now
delaying other subcontractors because of slow production.” The point is that
Mr. McAfee and GSC make no effort to account for the evidence that at least some
delays were caused by GSC’s own subcontractors – delays that GSC determined were
the cause of the termination. It is not up to us to do GSC’s work and sort out who
delayed what specific activities and to what extent. See SKE Base Servs., 18-1 BCA
¶ 37,159 at 180,903.

As a matter of common sense, GSC (as noted) has undermined its credibility by
blaming both its subcontractors and the government for the project delays and the
termination for default. Cf. Int’l Tech. Corp., ASBCA No. 54136, 2006 WL 3844163 at
3 (Dec. 20, 2006) (“a trier of fact, in the context of making witness credibility
determinations, may believe or reject testimony in its entirety, or may believe parts of
testimony and reject others”). Cf. Morganti, 49 Fed. Cl. at 134 (taking into account
experts’ contrary opinions but giving most weight to other evidence in the record, and
drawing logical conclusions therefrom). In addition, when oral testimony is
contradicted by contemporaneous documents the trier of fact should give little weight to
the oral testimony. See United States v. United States Gypsum Co., 333 U.S. 364, 395-
96 (1947). Little weight is to be accorded to oral testimony that is contradicted by
contemporaneous documents. United States v. Int’l Bus. Mach. Corp., 66 F.R.D. 154,
159 (S.D.N.Y. 1974). Cf. Wright Indus., Inc., ASBCA No. 18282, 78-2 BCA ¶ 13,396
at 64,477, 64,479 (“We give more weight to the contemporaneous records of the parties
and particularly to the portion of the [Quality Deficiency Records] in which appellant’s
quality control personnel investigated its problems, ascertained the causes thereof and
corrective action needed to eliminate the problems.”); James G. Davis Constr. Corp.,
ASBCA No. 58000, 15-1 BCA ¶ 35,818 at 175,158 (“we give great weight to the
parties’ contemporaneous words and conduct in attempting to resolve ambiguous
provisions of a contract”); Morganti, 49 Fed. Cl. at 137 (stating that
“[c]ontemporaneous evidence reveals that [contractor] conceded that timely cell-panel
fabrication and installation were critical to keeping the project on schedule,” and
quoting contractor’s internal memorandum, that “[c]ell panel delivery and erection
through the 6th floor is this project’s critical path”). On balance, GSC’s
contemporaneous admissions against interest are more credible than Mr. McAffee’s
opinion and GSC’s current positions.

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 It may be asked: How can so much in these appeals, which took ten days to
hear, turn primarily upon only a relatively small body of evidence (that is, GSC’s
admissions against interest regarding the problems caused by its subcontractors)?
Something like this happened not too long ago: in a unanimous, three-judge opinion,
the Board found invoices upon which an appellant based its quantum case not credible,
and on that basis alone unanimously denied the appeal without addressing appellant’s
entitlement argument (although the hearing of that appeal took only a little more than
one day). TranLogistics LLC, ASBCA Nos. 61366, 61450, 19-1 BCA ¶ 37,330
at 181,552-53. In another set of appeals, we heard some five days of testimony
regarding claims arising from a construction contract, and unanimously decided those
appeals on the ground that the contract was void ab initio, without otherwise
addressing any of the many entitlement and quantum issues raised by the parties,
relying upon little more than two organizational charts and a single answer to a single
question as the evidentiary basis for that decision. ABS Dev. Corp., ASBCA
No. 60022 et al., 19-1 BCA ¶ 37,234 at 181,232-23. A tribunal need not discuss all
the particular contentions in a case; when that happens, it does not mean that the
tribunal did not consider all the parties’ contentions in reaching its decision. Lowder v.
Dep’t of Homeland Security, 504 F.3d 1378, 1383 (Fed. Cir. 2007). All it means is
that the author of the opinion, enjoying broad discretion to determine what the opinion
should contain and in what detail, for whatever reasons did not find it necessary or
appropriate specifically to discuss those points. See id. Cf. Kellogg Brown & Root
Servs., Inc. v. Sec’y of the Army, 973 F.3d 1366, 1370 (Fed. Cir. 2020) (“We need not
reach the issue of whether the government breached the contract by failing to provide
adequate force protection because the Board did not err in concluding that KBR’s
claimed costs were not shown to be reasonable (a prerequisite to its requested
relief).”); Castle v. United States, 301 F.3d 1328, 1341 (Fed. Cir. 2002) (“[W]e find
that [the plaintiffs] have not established their entitlement to damages . . . .
Accordingly, . . .we expressly decline to consider the liability issue.”).
Tech. Sys., Inc., ASBCA No. 59577, 17-1 BCA ¶ 36,631 at 178,386 (“We need not
address the argument of auditor independence because [appellant] has conceded it”
(citing appellant’s brief)); Highland al Hujaz Co., ASBCA No. 58243, 16-1 BCA ¶
36,336 at 177,167 n.11 (“Because we find that the government was justified in
terminating the contract for default because appellant anticipatorily repudiated the
contract, we need not and do not consider the government’s alternative arguments.”);
G.W. Galloway Co., ASBCA No. 17436 et al., 77-2 BCA ¶ 12,640 at 61,295 (“We
need not, and do not, reach this legal issue because appellant’s claim fails on factual
grounds in any event.”). In the context of Board opinions, that discretion presumably
flows from one of the purposes of the Contract Disputes Act: “to insure the
independence of contract appeals board members as quasi-judicial officers.” Freedom
NY, Inc., ASBCA No. 43965, 05-1 BCA ¶ 32,934 at 163,121 (quoting S. REP.
NO. 95-1118, at 13, 24, 26 (1978), reprinted in 1978 U.S.C.C.A.N. 5247, 5258, 5260);
Four-Phase Systems, Inc., ASBCA No. 26794, 84-2 BCA ¶ 17,416 at 86,746 (same);

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see also SWR, Inc., ASBCA No. 56708, 12-1 BCA ¶ 34,988 at 171,945 (Board
functions in a judicial capacity).

GSC defaulted, and admitted that its subcontractors caused its default by
delaying the work. Neither expert addressed those admissions or that issue, and
neither expert’s opinion is credible or helpful. GSC has failed to prove that its default
was excused. I concur in the denial of ASBCA No. 59402.

ASBCA NO. 59601: OVERHEAD COSTS

FINDINGS OF FACT

On June 15, 2016, the Board ordered that the hearing of these appeals would be
on entitlement and quantum. During the hearing, GSC predicted in its opening
statement that it would “put on evidence that GSC’s site overhead rate and cost build-up
per day was $1,302” (tr. 1/29), and GSC’s owner and president provided the following
answers to the following questions (tr. 5/69-70):

Q That amount of $1,302.75, what is that?

A That is GSC going through its accounting software and
the money that it spent on those activities that are listed
there, on checks that were cut, to come up with a daily
value on what GSC was spending per day on the SSA
project.

Q These amounts, are they taken from your accounting
books and records?

A Yes.

Q Are those records in order to obtain your bonding
audited?

A Yes.

Q Okay. Are they -- is that amount true and correct to the
best of your knowledge and belief?

A Yes, it is.

Q Okay. [T]hen you have the daily amount. You have the
number of days. How did you calculate the claim amount?

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 A The final amount is that you take the -- it’s calculating
in a calendar day -- and this is – then that’s -- multiplied by
that duration amount to come up with that overhead cost.

Q And what is the total cost that’s being claimed?

A It’s $328,293.82.

DECISION

GSC says that it’s entitled to $328,293.82 in field office overhead costs (it’s
term is “site overhead expenses”) for 252 days of alleged delay at $1,302.75 per day
(app. br. in ASBCA No. 59601 at 2). As found above, GSC, through its
subcontractors, delayed the work, causing the default and $4.5 million in losses to
itself. Consequently, GSC is not entitled to any recovery.

In addition, field office overhead costs, like other direct costs, require specific
proof of the quantum of damages in addition to specific proof of proximate causation.
See George Sollitt, 64 Fed. Cl. at 242. Even if it had demonstrated entitlement, GSC
fails to demonstrate that it is entitled to any particular amount. Despite eliciting the
testimony quoted above regarding “[t]hat amount of $1,302.75,” and despite having
predicted in its opening statement that: “[w]e’ll put on evidence that GSC’s site
overhead and cost build-up per day was $1,302,” in its post-hearing briefing GSC
appears to say that the Board should order it “to submit cost and pricing data to
determine the total amounts owed for its delay costs” (id. at 38). In what it styles as a
“Conclusion and Order,” GSC adopts the voice of the Board (app. br. in ASBCA
No. 59601 at 38 ), saying:

GSC is entitled to 321 days of excusable delay for this
appeal. Of these 321 days, 258 compensable days. GSC’s
Contract completion date should be December 21, 2014.
GSC is directed to submit costs and pricing data to
determine the total amounts owed for its delay costs as it
related to this appeal.

And GSC opens its brief by saying, without citation, “[o]nly entitlement is currently at
issue in this appeal” (id. at 2). Not so. The parties had a year’s notice that the hearing
would address quantum. Because in its post-hearing briefing GSC fails to develop any
argument supporting the total amounts that it says it is owed for delay costs, it has
failed to properly preserve that issue. See Omega Patents, LLC v. CalAmp Corp.,
920 F.3d 1337, 1343 (Fed. Cir. 2019). Looked at another way, again, the Board will
not scour the record for GSC’s evidence or do GSC’s work for it, see ESCgov, Inc.,

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ASBCA No. 58852, 17-1 BCA ¶ 36,772 at 179,189; Highland al Hujaz, 16-1 BCA
¶ 36,336 at 177,169-70; for that reason, too, GSC has failed to demonstrate its
overhead costs. See Parsons Evergreene, LLC v. Sec’y of Air Force, 968 F.3d 1359,
1368 (Fed. Cir. 2020) (“Nothing in . . . [the authorities] cited by Parsons suggests that
the Board was required to scour the tens of thousands of pages of record evidence in
this case, without any guidance, to determine the amount of an award.”). See also
Kellogg Brown & Root, 973 F.3d at 1371 (“KBR only devotes two pages of its brief to
defending the reasonableness of its costs and fails to describe in any detail KBR’s cost
calculation methodology or why its methodology was reasonable. This alone would
justify affirmance, since KBR has not meaningfully briefed the issue.). Cf. United
States v. Great Am. Ins. Co. of N.Y., 738 F.3d 1320, 1328 (Fed. Cir. 2013) (“It is well
established that arguments that are not appropriately developed in a party’s briefing
may be deemed waived.”); SmithKline Beecham, 439 F.3d at 1320-21; AAR Airlift
Grp., Inc., ASBCA No. 59708, 19-1 BCA ¶ 37,462 at 182,007 (citing cases); GSC
Constr. Inc., ASBCA Nos. 59046, 59957, 19-1 BCA ¶ 37,393 at 181,797 (“Appellant
requests $3,000 in claim preparation costs [], but presents no persuasive evidence in
support of that very sparse claim. This portion of the appeal is denied.”); Cocoa Elec.
Co., ASBCA No. 33921, 91-1 BCA ¶ 23,442 at 177,577 (denying claim for “failure to
prove any damages”); aff’d, 64 F.3d 676 (Fed. Cir. Aug. 14, 1995) (table); McCotter
Motors, Inc., ASBCA Nos. 30498, 30997, 86-2 BCA ¶ 18,784 at 94,647 (declining to
do appellant’s work for it, and to do counsel’s job: “The days of simply alleging every
conceivable theory and leaving it up to the Board to search for facts and law to support
the theories are over.”); Orlosky Inc. v. United States, 68 Fed. Cl. 296, 318 (2005)
(refusing to “undertake to prepare evidence”); Al Ghanim Combined Grp. Co. Gen.
Trad. & Cont. W.L.L. v. United States, 67 Fed. Cl. 494, 498 (2005) (“This court cannot
prepare evidence or speculate regarding its accuracy.”).

Long ago we said:

We are not charged with sorting through a haystack of
documents to locate relevant facts. If we were to engage in
such efforts it would cripple our ability to perform our
basic function of providing a just, inexpensive and
expeditious remedy. . . . In briefing we expect the parties
to make specific reference to each remaining document
which they contend supports their position. In the absence
of such specific reference, parties risk documents not being
considered in reaching our decision.

Gary Aircraft Corp., ASBCA No. 21731, 91-3 BCA ¶ 24,122 at 120,718 (quoting
Hawaiian Dredging & Constr. Co., ASBCA No. 25594, 84-2 BCA ¶ 17,290
at 86,125); accord Carolina Maint. Co., ASBCA No. 25891, 87-1 BCA ¶ 19,571
at 98,966 (in connection with the duty of counsel in respect to the contents of briefs);

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see also DANAC, Inc., ASBCA No. 33394, 97-2 BCA ¶ 29,184 at 145,150 (“in the
absence of citation to specific passages, dates or report numbers, we have not accepted
proposed findings supported only by such shotgun citations”). We also said, in a
slightly different context:

In sum, we have had virtually no aid and guidance in
trying to determine appellant’s entitlement in this appeal.
There are seven volumes of transcript and the written
record is about two feet tall. We are not inclined to comb
through this record in search of support for appellant’s
claims which have been at best changing over time and
totally unclear. To do so would be to become appellant’s
advocate. To be sure, we have looked at portions of the
record in hopes of finding something to base our decision
on. But, if we have missed important matters which
support appellant’s claim, appellant has only itself to
blame.

Essential Constr., 89-2 BCA ¶ 21,632 at 108,833-34 (emphasis added) (quoting
Hawaiian Dredging and finding that “We have not been given the aid we need to sort
through and find the merit, if any, in appellant’s claim.”); see also VIZ Mfg Co.,
ASBCA No. 17787, 79-1 BCA ¶ 13,682 at 67,109 (“Many of [appellant’s] claims
were merely asserted in its briefs, with no support or inadequate support cited, as we
found. While we do attempt a complete review of the record to cure this kind of
inadequacy in appropriate circumstances, such as in small cases where appellants are
appearing pro se, we feel no such obligation in a case of this magnitude and
complexity where the appellant is represented by counsel” (emphasis added)). As for
Mr. McKnight’s bare testimony that GSC’s claimed daily overhead rate of $1,302.75
consists of “GSC going through its accounting software and the money that it spent on
those activities that are listed there, on checks that were cut, to come up with a daily
value on what GSC was spending per day on the SSA project,” that is far from what
would be necessary for GSC to prove its quantum case.

I concur in the denial of ASBCA No. 59601.

Dated: November 24, 2020

TIMOTHY P. MCILMAIL
Administrative Judge
Armed Services Board
of Contract Appeals

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 I certify that the foregoing is a true copy of the Opinion and Decision of the
Armed Services Board of Contract Appeals in ASBCA Nos. 59402, 59601, Appeals of
GSC Construction, Inc., rendered in conformance with the Board’s Charter.

Dated: November 24, 2020

PAULLA K. GATES-LEWIS
Recorder, Armed Services
Board of Contract Appeals

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