________________________________ DENIED: April 30, 1996 ________________________________ GSBCA 12621 JOSEPH W. GREEN, Appellant, v. GENERAL SERVICES ADMINISTRATION, Respondent. Joseph D. McDonald of Palmer, Feltz, Smith & McDonald, Portland, OR, counsel for Appellant. M. Leah Wright, Office of General Counsel, General Services Administration, Washington, DC, counsel for Respondent. Before Board Judges DANIELS (Chairman), VERGILIO, and WILLIAMS. WILLIAMS, Board Judge. Appellant, Joseph Green, seeks an equitable adjustment due to an alleged Government delay in conjunction with his "build- out" of leased property. Mr. Green, who is both the lessor and the construction contractor, seeks $60,645.81 in delay costs, alleging that a five-month period of delay in the occupancy date was attributable to the Government. Appellant seeks his unreimbursed costs which are allegedly attributable to the delayed occupancy date, i.e., carrying costs of the building, interest on the mortgage loan, taxes, and utilities, as well as compensation for his own personal services and typing, travel, and office supplies. Appellant's claim fails for lack of proof. First, appellant has failed to prove by a preponderance of the evidence that Government delay impacted the build-out completion. Although there were changes and a later-than-expected occupancy date, appellant has not proffered a critical path schedule or any construction schedule, has not demonstrated what work was delayed by what Government action, and has not quantified the delay attributable to the Government. Second, appellant has failed to prove that Government delay was the sole delay in the project. Rather, there is evidence that delays by appellant contributed to the overall delay: appellant failed to order ballistic material on time, failed to provide paint and carpet samples to the Government on time, was unfamiliar with the security requirements and sought unnecessary clarification from the Government. Thus, even assuming there was Government delay, appellant's concurrent delays preclude him from recovering. We consequently deny the appeal. Findings of Fact The Solicitation On April 10, 1990, respondent, the General Services Administration (GSA), issued solicitation number MOR90144 to provide up to 9,500 net useable square feet of office space, built-out to the GSA's specifications, in Eugene, Oregon. Offers were to be received no later than April 30, 1990. Appellant, who is an accountant, purchased the property on which the building stands in 1988 for $120,000. Transcript at 16, 207. At the time the solicitation was issued appellant had put an additional $520,000 into the building and the building was substantially completed as a "shell." Id. at 16-17. The exterior walls were up and the roof was on, but none of the interior lighting, HVAC, or elevators were in. Id. at 15. Appellant secured a "construction/take-out loan" in the amount of $600,000 on the building prior to construction. Id. at 15-16, 224; Appellant's Exhibit 43. The Lease On September 14, 1990, respondent awarded lease number GS-10B-05597 to appellant for the lease and build-out of approximately 8,754 net usable square feet of office space in Eugene, Oregon, for occupancy by the United States Attorney's Office. The lease term was five years, and the rental rate was $12,470.92 per month. Appeal File, Exhibit 1 at 1. The lease said that its term was to commence on October 1, 1990, and extend through September 30, 1995. Appeal File, Exhibit 1 at 1. The lease further provided, however, that the effective date of the lease "is an estimate only." Id. at 3. Paragraph 10 of the lease stated in pertinent part: The effective date shown in Paragraph 2 of the lease is an estimate only. This lease will be supplemented to show the actual effective date after the space is built-out, mutually measured and accepted by the Government. Annual rent will be determined by actual square footage multiplied by $17.10 per square foot, up to a maximum of $149,651.00. Id. Paragraph 1.5 of the lease, date of occupancy, provided: Occupancy is required within 90 calendar days from the date of award or from receipt of plans and samples, whichever is later. GSA shall deliver layout drawings and necessary finish selections to the successful offeror within 60 calendar days from the date of receipt of plans and samples from the lessor. Appeal File, Exhibit 1 at 8. The terms "plans and samples" were not defined in the lease. Id., Exhibit 1. Appellant delivered the floor plans prior to the date of award, September 14, 1990. Transcript at 300. These floor plans were "shell" plans of the building which showed the walls, existing stairwells, and plumbing, in unfinished form; there was no layout of the interior rooms. Id. at 23-24. The only "samples" appellant provided to GSA were paint and carpet samples; these were provided for the first time on January 14, 1991. Appellant's Exhibit 19; Transcript at 245. The lease agreement required appellant to make several modifications to the property before occupancy of the building, according to GSA's specifications and a Government-furnished layout drawing. Transcript at 46-48; Appeal File, Exhibit 1 at 3-6. For the build-out items specified in the original lease, GSA agreed to pay appellant both a lump sum of $60,965 and $33,485 to be amortized over the five-year period of the lease. Appeal File, Exhibit 1 at 3-6. Paragraph 3.1 of the lease stated: Several Paragraphs in this SFO [solicitation for offers] specify means for determining quantities of items such as electrical outlets and partitions. These are government projections to assist the offeror in developing a per square foot price for the space offered. Actual quantities may not be determined until after the lease is awarded and the space layout completed. When the government layout departs from the projection, the lessor will be paid for the actual quantity provided if the total number of items varies more than 15 percent above or below the estimated quantity. An equitable adjustment in the contract price shall be made upon demand by either party when these conditions are met. GSA will make a lump sum payment or rental increase if the amount of material required by the layout is more than specified or take credit from the rental if the amount is less than specified. Id. at 17. The lease's Changes clause stated in part: (a) The Contracting Officer may at any time, by written order, make changes within the general scope of this lease in any one or more of the following: (1) Specifications. (2) Work or services. (3) Amount of space. (4) Facilities or space layout. (b) If any such change causes an increase or decrease in the Lessor's cost of, or the time required for, performance under this contract, whether or not changed by the order, the Contracting Officer shall modify the lease by (1) making an equitable adjustment in the rental rate, (2) making a lump sum price adjustment, or (3) revising the delivery schedule. (c) If such change causes an increase in costs under this contract, the Lessor shall submit any "proposal for adjustment" (hereafter referred to as proposal) under the clause at 552.270-20, Proposal for Adjustment. (d) Adjustments for operating expenses in vacant leased premises will be in accordance with the clause at 552.270-25, Adjustment for Vacant Premises. (e) Failure to agree to any adjustment shall be a dispute under the Disputes clause. (f) No services or work for which an additional cost or fee will be charged by the Lessor will be furnished without the prior written authorization of the Contracting Officer or a designated representative of the Contracting Officer. Appeal File, Exhibit 1 at 50-51. The Time Extension clause stated that if delays were to occur during the build-out: The lease will not be terminated nor the Lessor charged with the resulting damage if delays arise from unforeseeable causes beyond the control of the Lessor and/or his contractors, subcontractors, suppliers, or another Government contractor. However, the Lessor shall notify the Contracting Officer, in writing, of any delay within 10 calendar days after it begins. The Contracting Officer shall ascertain the facts, determine the extent of the delay, and grant extensions when justified. Appeal File, Exhibit 1 at 48. Under the lease, the lessor was responsible for meeting the requirements of all applicable fire, electrical, and other codes and for obtaining all necessary building permits. Appeal File, Exhibit 1 at 53; Transcript at 230-31. Appellant had no daily log and no daily reports for this project. Transcript at 214-15. This record does not contain a critical path or other construction schedule for this project, or a time line. September 26 Layout Drawings On September 26, 1990, GSA mailed the layout drawings to appellant. Appellant's Exhibit 3. It was appellant's understanding that occupancy would occur ninety days after he received the layout drawings and specifications for the build- out. Transcript at 25. The layout drawings required additional floor support for approximately eighty-eight square feet, infilling of fourteen first floor windows with glass block, installation of additional cabinets, replacement of a door with two insulated glass windows, and enclosure of an entry with a metal security door. Appeal File, Exhibit 4 at 118, 224; Appellant's Exhibit 3. On October 3, 1990, appellant met with the contracting officer and the Government's realty specialist to discuss the requirements of the layout drawings. Appeal File, Exhibit 4 at 118; Transcript at 375. During the meeting, appellant informed the Government that he needed detailed layouts of the automated data processing (ADP) room, second and third floor secretarial areas, and telephone room to perform the build-out. Transcript at 35. As a result of that meeting, appellant understood that any and all changes had to "go through the GSA office in Auburn [Washington]" and that a supplemental lease agreement authorizing the change and the pricing would be issued at which time appellant would proceed with the work. Transcript at 39-40. As of the time of the October meeting, appellant was preparing the building for the interior build-out and waiting for clarification. Id. at 42. At this point, appellant was also inventorying material, calculating the amount of sheetrock and the metal needed for construction. Id. Appellant was also concerned in early October about the location of a bulletproof partition wall which separates the entry room from the stairwell. Id. at 49. On October 4, GSA's realty specialist sent a letter to the space management officer at the U.S. Attorney's Office, explaining that "detailed layout drawings for the ADP room, the telephone room and the second and third floor secretary's area were required no later than October 31, 1990." Supplemental Appeal File, Exhibit 3. On October 24, 1990, GSA forwarded to appellant detailed layouts for the secretary's area and the lobby receptionist room. Appellant's Exhibit 8. The electrical layouts including the layout for the ADP room were forwarded to appellant on November 21, 1990. Id., Exhibit 11. GSA's realty specialist interpreted the lease to mean that GSA was required to deliver layout drawings prepared from the floor plans provided by the lessor within sixty days of receipt of the lessor's floor plans. Transcript at 361. Since GSA had appellant's layout drawings when the lease was signed, in GSA's view, the sixty days began to run from the date of signing, September 14, 1990. Id. Therefore, GSA believed it had until November 14, 1990, to provide the lessor with layout plans including partitions, identification of rooms and wiring. Id. at 361-62. According to GSA's realty specialist's interpretation of the lease, the date of the receipt of the layout drawings from the Government, i.e., November 14, started the ninety-day build- out period. Id. at 414-15. Thus, in his view February 14, 1991, was the required occupancy date. Id. at 415. In an October 9, 1990, letter to GSA's realty specialist, appellant submitted a bid to perform the alterations contained in the September 26 layout drawings. Appeal File, Exhibit 4 at 118. In that letter, appellant further advised GSA: "I will need your . . . approval before proceeding with these changes." Id. Supplemental Lease Agreement (SLA) No. 1, effective November 16, 1990, covered these alterations and provided: This Supplemental Lease Agreement reflects additions to the alterations for the Chia Tower Building currently under construction. The Lessor shall construct the following items for the lump sum costs of $31,171.00. 1. Increase the floor load capacity to 150 pounds per square foot for approximately 88 square foot secured storage room on the third floor. $5,456.00 2. Five lineal foot base kitchen type cabinet with 5 lineal foot counter top and 5 lineal foot overhead cabinet to match. $1,600.00 3. Infill 14 windows on the first floor with Delphi pattern 6" x 6" glass blocks and replace existing glass on the street side of the windows. $19,285.00 4. Prepare and enclose the entry on the east side of the building on the first floor with a 4 foot metal security door with an emergency breaker bar. $3,600.00 5. Remove one door and install two insulated glass windows on the first floor west entrance. $1,230.00 Id., Exhibit 1 at 99. This SLA was transmitted to appellant on November 20. Appellant's Exhibit 10; Appeal File, Exhibit 1 at 99. On November 30, 1990, appellant signed SLA No. 1. Id. Appellant received the space allocation memorandum of the U.S. Attorney's Office in late October 1990. Appellant's Exhibit 8; Transcript at 53. Appellant voiced concern because he was not building in conformance with the U.S. Attorney's Office's space allocation standard. Id. GSA's realty specialist advised appellant to ignore the space allocation standard if it differed from what had been specified in the lease. Id. at 53, 376. Appellant testified that there was a total work stoppage for "a couple of weeks" in October while he was waiting for GSA's approval of glass block, the entry door, the strengthening of the floor in the file room, the bulletproof wall's location, and identification of which areas had to have a sound rating of STC 50. Transcript at 58-64. Appellant did not specify on which days in October the work stoppage occurred. No contemporaneous documents were introduced in the record to demonstrate such a work stoppage. No critical path or other construction schedule was provided. Even though he had still not received a supplemental lease agreement, appellant began working on the third floor. Id. at 59-60. The Bulletproof Wall By letter dated October 11, 1990, appellant requested guidance on whether a certain wall needed to be bulletproofed: Please confirm in writing that the wall that is adjacent to the stairwell in the entry room . . . will not need to be bullet proofed. In rereading the specifications I am looking at the information that came from Washington, D.C., it appears to me that the intention on this is for this wall to be bullet proof. I tried to contact a party in Eugene, Oregon to have them rereview this and have been unsuccessful. But, we don't want to put this wall in and have to tear it out to bullet proof it. It does appear, however, that it needs to be bullet proofed, but if you would confirm [for] me in writing that it doesn't, then it would put me at ease that we have done the right thing in this area. Appellant's Exhibit 6. This issue was not resolved until December 1990. Transcript at 95. Although separate ballistic materials, which required a six-week lead time, were specified in the original lease, appellant awaited clarification regarding this wall before placing an order "sometime after December" for these materials. Id. at 244. Appellant believed that it was preferable to order all the ballistic materials together. Id. at 245. Appellant testified that delay in obtaining the ballistic material which was to be used for the public entry area had no effect on any construction on the second or third floors. Id. at 291-92. The Fire Code Problem After receiving the September 26 GSA-provided layout drawings, appellant encountered problems meeting fire codes and obtaining the requisite building permits. The layout contained a corridor in the secretarial areas that did not meet the fire corridor requirements of the city. Transcript at 39. Because the city would not issue a building permit until the plans conformed with the fire codes, appellant stopped work on the third floor for approximately two weeks during the month of October. Id. at 237. By letter dated December 5, 1990, appellant informed GSA: I will need a modification on the building on 701 High regarding the sprinkler system. Two of the hallways, one on the first floor and one on the third floor, are too long to meet fire code without placing a central alarm on the sprinkler system. The cost of putting this alarm in and wiring it up is $2,790.00. Please contact me if there are any questions regarding this and furnish me with the change order. Appellant's Exhibit 12. Appellant's Progress As of mid-November 1990, GSA's realty specialist made a site visit to the building. Transcript at 379-80. He observed that work had not started on the elevators, plumbing had not been set, the sprinkler system was not installed, the heating and cooling system was not in place, and vertical steel frames were in place, but no further action could be taken on the wiring or drywalls or floors until the very basics of construction were completed. Id. at 379; Supplemental Appeal File, Exhibit 32. By letter dated November 30, 1990, the administrative officer for the U.S. Attorney's Office for the District of Oregon advised GSA's realty specialist that he was seriously concerned about the progress of the construction. He stated: "As recently as yesterday, major construction still has not begun on the build-out." Supplemental Appeal File, Exhibit 32. December 6, 1990, Security Recommendations By letter dated December 6, 1990, GSA sent appellant the "layout and special requirements for the security system" of the leased space. Supplemental Appeal File, Exhibit 9. Although these drawings were dated October 18, 1990, appellant did not receive them until December. Id., Exhibit 28. There was no date stamp showing when GSA had received the security recommendations from the U.S. Attorney's Office, but GSA's realty specialist testified that he sent them to appellant within a day or two of receiving them. Transcript at 320-21. There were twenty-three security requirements: 1. Install solid and wood core or metal door with no vents or windows. 2. Install Class II ballistic door(s) which meet UL Standard 752 with appropriate woodgrain finish to match office motif . . . . 3. Install automatic mechanical door closer. 4. Install in-door viewing devices . . . . 5. Install balanced electro-magnetic door contacts. 6. Install key operated deadbolt lock . . . . 7. Install electro-mechanical lock . . . . 8. Install security grade emergency bar / paddle door release device . . . . 9. Install manual cypher lock. 10. Install electronic keypad to act in conjunction with door locking mechanism . . . . 11. Install 3-position combination deadbolt lock. 12. Install release button for electro-mechanical lock. 13. Install fixed duress alarm activation button. 14. Install 50 STC sound proofing. 15. Install 360 degree ceiling mounted passive infrared sensor. 16. Install directional . . . passive infrared sensor to cover area(s) as indicated. 17. Install HF duress alarm signal receiver . . . . 18. Install hand set cut-off devices or line cord on each telephone instrument . . . . 19. Install . . . ballistic transaction window with deal tray and speaker vent . . . . 20. Install opaque fiberglass ballistic material . . . . 21. Install central alarm panel . . . . 22. Install an Uninterrupted Power System . . . . 23. Install 150 watt . . . luminaries . . . . Supplemental Appeal File, Exhibit 28. Not all of these twenty- three items were new requirements. The ballistic door, the STC- rated partitions, and the transaction window were in the original lease, and, according to GSA's realty specialist, "the main items that were involved in the build-out of partitions and physical space were already in the lease." Transcript at 384. He testified: "Most of the additions are smaller items, door locks, electrical items." Id.; see Supplemental Appeal File, Exhibit 29. Mr. Green testified that he was particularly concerned about the change which increased the soundproofing from forty-five STC to fifty STC. Transcript at 72-77. As he explained it, the building was being built with half-inch sheetrock, but the material had to be five-eighth inch sheetrock to accommodate this STC rating and it was impossible to build a building with mixed thickness of sheetrock. Id. at 72; see id. at 50-52. Mr. Green said that he was required to tear out the entire third floor because he had sheetrocked the whole floor and had run into the problem of trying to match up five-eighth inch sheetrock with half-inch sheetrock. Id. at 77. Appellant misinterpreted the requirements for walls with an STC rating. The lease only required certain interior partition walls to have an STC rating; appellant built all of the exterior walls to have the STC rating as well. Appeal File, Exhibit 1 at 102; Supplemental Appeal File, Exhibits 28, 29; Transcript at 367-69. On December 14, 1990, appellant submitted a bid for these "upgrades" totalling $145,970. Supplemental Appeal File, Exhibit 10. Appellant further advised GSA: [P]er our conversation, the adjustments being made and the timing delay caused by receiving these plans, when we were well into the construction of the interior walls and buildout, will delay the completion of the building for somewhere in the neighborhood of 30 - 45 days. As we discussed, after the building is completed, a claim will be filed to receive rent during this period of time. Id. This was the first time appellant indicated to GSA that there would be a delay in the build-out. Transcript at 399-400. There was an ongoing debate until the fall of 1991 as to what type of hardware would meet the security recommendations. Transcript at 321. GSA's security expert reviewed the information transmitted to appellant and said that it contained enough information for a contractor to provide the equipment and install it. Id. GSA's realty specialist attributed the delay in the installation of the security system to Mr. Green's lack of understanding as to what items were being required -- his unfamiliarity with the products and the complexity of the system. Id. at 329-30. According to the realty specialist, appellant should have proceeded with the remaining build-out work and not stopped work on the project pending authorization to proceed with the security system. Id. at 383. By letter dated January 2, 1991, appellant provided GSA with a breakdown of the costs for which reimbursement was requested on December 14, 1990. Appellant further stated: It is also important to point out that a delay will be caused in obtaining the hardware, etc., for the changes on the doors of the Chia Tower Building and will set the occupancy date back from February 1. We would meet this date for occupancy had these changes not occurred. We will endeavor to minimize any delay caused by these changes, but need to make you aware that there are going to be delays because of them. Please contact me ASAP to finalize these changes. Supplemental Appeal File, Exhibit 16. By letter dated February 12, 1991, appellant submitted a more comprehensive price breakdown and explanation of what items were entailed in the bid for the security items. Appellant's Exhibit 20. This letter was written in response to a verbal request from GSA's realty specialist for further information regarding these costs. Transcript at 91-92. At the time appellant wrote the letter of February 12, he believed that he was "not supposed to proceed with any changes or anything until [he] had a supplemental lease agreement." Id. at 92. Nonetheless, appellant did proceed with some items without the benefit of a supplemental lease agreement "in order to keep the project rolling." Id. The Lack of Written Authorization from GSA According to appellant, the project also experienced delays in October related to the installation of glass window blocks, entry doors, and bulletproof walls. Appellant claims that he did not proceed to infill the windows with the glass blocks and install the entry doors because he did not have written authorization from the contracting officer to proceed with the work. Transcript at 41, 236. According to GSA's realty specialist, the contracting officer verbally authorized appellant to proceed with the build-out without a signed supplemental lease agreement at the October 3 meeting. Id. at 375-76. Appellant, however, stated that the contracting officer instructed him not to proceed with any changes without a written agreement. Id. at 92. GSA's realty specialist also testified that he told appellant "not to proceed with work that would be considered change work without an agreement with the GSA as to the pricing of the work." Id. at 318. He explained: "It's appropriate and customary when we can do it to have a supplemental lease agreement." Id. at 318-19. Subsequently, he reconciled his testimony as follows: Q . . . I asked you whether or not you had told Mr. Green, when he received these initial changes, that he was not to proceed with those changes until he had priced them and gotten a supplemental lease agreement. And your answer to that question was that was true, that that's what you had told him. Now, when I heard you testify in response to your attorney's questions about what was communicated to Mr. Green about authorization to proceed, it seemed to me you were saying just the opposite, and can you straighten that up for me? Am I still correct in what you testified to, that with the initial changes, you had instructed Mr. Green not to proceed without pricing -- an agreement on pricing? A I think what you are saying, both things are both true, that what you said is correct. I did say to Mr. Green, "Accept no changes except through GSA, me or a responsible official." And I think the other answer you heard was based after our meeting on October 3rd or something with [the contracting officer] and my statement might seem to conflict because . . . the contracting officer, said, "Proceed with what you are instructed to do, if you want to." Q So [the contracting officer] said something different to Mr. Green than you had told him about whether he was authorized to proceed? A That is correct, but he had the authority to make that deviation. I did not. Id. at 432-33. GSA's realty specialist understood that as a result of the October 3 meeting, appellant had been verbally authorized by the contracting officer to proceed with the build-out without a supplemental lease agreement. Transcript at 375-76. The contracting officer testified that Mr. Green was told to proceed with the changes without having first received a supplemental lease agreement. Id. at 141. The contracting officer assumed that appellant would start performing the changes without the benefit of a supplemental lease agreement. Id. at 143. Subsequent supplemental lease agreements were prepared and signed months after the change requests. Id. at 100-13. The Occupancy Date GSA was aware that appellant had experienced delays in December and that the Government had "more or less forgiven the original date" of January 1 based on the circumstances. Transcript at 186-88. On January 14, 1991, appellant transmitted paint samples and carpet samples to GSA for the first time and requested that the Government contact him immediately with the selections. Appellant's Exhibit 19; Transcript at 245. During a March 22 telephone conversation, appellant and GSA's realty specialist agreed initially that the building would be ready for acceptance and occupancy on April 10. Appeal File, Exhibit 4 at 40. Pursuant to a subsequent telephone conversation on April 4, GSA's realty specialist requested that appellant provide "a firm occupancy date by April 12." Id. On April 9, 1991, the contracting officer sent appellant a letter, indicating that the building should have been occupied on January 1, 1991. Appeal File, Exhibit 4 at 42. The contracting officer wrote: Lease number GS-10B-05597 was executed on September 14, 1990. The lease required the Government to furnish you with a layout drawing within 60 days. The completed layout was mailed to you on September 26, 1990. Paragraph 1.5 of the lease indicates that occupancy is required within 90 calendar days from the date of award or from receipt of plans, whichever is later. Allowing time for delivery of the layout the space should have been ready for occupancy on January 1, 1991. . . . . Your failure to provide the required initial space alterations in accordance with the delivered layout has placed the Government in a precarious position. This situation can no longer be tolerated. All alterations to the space must be completed no later than April 19, 1991. To arrange for the agency relocation, we must receive, by April 15, 1991, written notification from your office that the occupancy date will be met. If the delivery date is not met, the lease will be immediately terminated for default and alternate housing will be solicited. Id. At the time of the April 9 letter, the Government was concerned that there was "a lack of firmly established confidence on our part that the work was progressing." Transcript at 138. GSA believed at the time that appellant had all the information he needed to proceed with the work and that the Government and appellant were in the process of negotiating the dollar figures and that, simultaneously, appellant was proceeding with the necessary work while GSA was settling the price arrangement. Id. at 139. The Government issued the April 9 letter threatening default because there was no termination for convenience clause in the lease and the Government was not sure whether appellant was financially capable of completing the build-out. Id. at 180. The Government was concerned because of the apparent lack of progress and "some indication that things were slowing down" and wanted to give appellant the opportunity to opt out of the lease. Id. at 180-81. According to appellant, the following was the status of construction progress as of April 9: Primarily, at this juncture, the bulk of the walls and stuff were in, but the elevator was being -- the car was being worked on and put in, but the things that were mattering, number one, was the sprinkler system and changes on the sprinkler system in order to meet city requirements and some government requirements that we hadn't agreed upon. Security hardware, interior and exterior, that we had not -- you know, that there'd been no answers on at this point. And then there were some other items -- parking lot lights; and what I would say is a minimal item because it was on site there at that time, but I mean, the carpet hadn't been laid, you know; and some of the special locks that went in the interior of the building weren't in my possession or authorized even at that point. And a couple of them, I didn't even know what they were. Combination locks -- I hadn't located those. I didn't even know what they were. Transcript at 100-01.[foot #] 1 As of early April 1991, appellant had some difficulty in financing the construction of the build-out. Transcript at 192. He explained: [W]hen I entered into this back in September of 1990, my bucket had $100,000 [and an] occupancy date that was going to occur January 1. Now I'm [in] April, and you can up the supplemental lease agreements that go well in excess of $200,000. So, now I have had four or five months with no rental income, so, i.e., I've carried the building through that stage, and I've laid out twice as much money as what I -- and different people have different thresholds. $100,000 additional is a lot of money to me, plus you add in the rent there or whatever you want to call it -- mortgage payments, capital costs, however you want to label it -- of another thirty, forty, fifty thousand dollars. At this juncture now, my bucket is two and half times as empty as what I'd planned on. Id. at 192-93. Prior to April 9, 1991, several subcontractors complained to GSA's realty specialist that they had not been paid by appellant. Transcript at 389-92. The elevator installer removed a key component and would not install it until he was paid. Id. at 390. Similarly, the security contractor had advised GSA's realty specialist it was going to remove the equipment it had installed ----------- FOOTNOTE BEGINS --------- [foot #] 1 This was based on appellant's testimony some three years after the fact, as no contemporaneous construction schedule or reports were submitted. Transcript at 100-01. ----------- FOOTNOTE ENDS ----------- because it had not been paid. Id. The carpet subcontractor also contacted GSA to request it to facilitate payment from appellant. Id. at 391. These matters were considered by GSA's contracting officer in threatening to terminate the lease for default. Id. at 389. Appellant permitted his subcontract with the elevator installer to expire prior to the time the elevator was required to be installed. Transcript at 277-79. Because of this, appellant was required to renegotiate that subcontract using counsel. Id. at 278. Appellant admitted that he could have installed the elevator earlier. Id. at 278-79. On April 17, 1991, appellant met with Government representatives to discuss the occupancy date for the building. During the April 17 meeting, Mr. Green advised GSA that he was still waiting for information he needed to complete the build- out. Transcript at 155-56. The contracting officer believed this statement had to do with the STC requirements or bulletproof material. Id. at 156. The contracting officer testified: The context of the conversation was that Mr. Green didn't understand what we were asking for in the same manner that we'd asked many other times and many other places. So we had a concern that there was a lack of sophistication or something that needed extra clarification in this case. Id. at 159. The contracting officer continued: It was [our] understanding that Mr. Green was more able to understand than he was OK? So, what we got out of the meeting was that he had a very much less understanding of the situation. And his lack of performance, which was something we were very concerned about at that point in time -- we thought maybe it was attributable to financial problems or anything of that nature. And the whole conversation of that day was around his concern for the contracting process, and his lack of understanding of that. And some of it was his concern about the technical descriptions of the items to be installed . . . . Id. at 161-62. As a result of the meeting, the contracting officer cancelled the April 19 occupancy date and agreed that the final occupancy date would be May 13, 1991. Appeal File, Exhibit 4 at 87; Appellant's Exhibit 26; Transcript at 101-04. During the April 17 meeting, GSA's contracting officer requested cost breakdowns in order to price changes. Transcript at 104-06; Appellant's Exhibit 24. Appellant provided GSA with such a cost breakdown in a handwritten note a day after the meeting. Appellant's Exhibit 24. In this note appellant sought overhead of $4,400 under the heading Overhead and Electrical. Id. at 5. The $4,400 was the cost attributable to Mr. Green's furnishing of lights, security systems, power supply, and low voltage. Transcript at 107-08. In this same letter, appellant also sought "carrying cost and financing" in the amount of $7,750. Id. at 108; Appellant's Exhibit 24 at 5. Appellant explained this carrying-financing cost as follows: This reflects the amount the owner of the building is losing due to a delay. The income stream off of that building he is not now getting because of changes or delays. Transcript at 109. He continued: [T]he terminology becomes nebulous, however you want to call it -- capital costs, carrying costs, rent, whatever -- is the sunk money cost that is going to cause me by the delay of waiting to get these items and stick them in this $800,000 asset that I've got sitting over here. Id. According to Mr. Green these carrying costs and financing were never included as a cost item in any of the supplemental lease agreements he entered with GSA. Id. at 109-10, 199. The contracting officer agreed that the supplemental lease agreements did not include a factor to extend the time of performance. Id. at 173. By letter dated April 24, 1991, GSA addressed items which were raised in appellant's letter of February 12, 1991, and which had not yet been resolved. Appellant's Exhibit 27; Transcript at 111. In that letter GSA questioned why the overhead on the electrical items was 57%. Appeal File, Exhibit 27 at 3. GSA also requested that for the "carrying cost and financing" appellant list items financed and the percentage rate of interest charged. Id. at 4. By letter dated April 11, 1991, appellant advised GSA's realty specialist that he was modifying his change request of January 2, 1991, as amended. He stated: I have deleted the items which we addressed on a previous breakdown change order which we in fact included in the original . . . and have this instant clarified the changes as per our conversation of Wednesday the tenth. A couple of items have been deleted as per our conversation. One, was a carrying and financing cost. It is my understanding that these changes will be made without any delay or without any contingency upon the Government's acceptance of the building. Appellant's Exhibit 25 at 1 (emphasis added). Appellant in his letter of February 12 also requested a total of $28,700 for the security system. Included within that was $3,463 for profit, overhead, etc. Appellant's Exhibit 27 at 2. By letter dated May 1, 1991, appellant responded to GSA's request of April 24, 1991, for further information regarding carrying costs and financing as follows: Carrying costs and financing costs is [sic] deferred foreman time and labor necessary for us to complete these items. As you know, there have been many delays on this building which have not allowed us to allow your agency to occupy the building. This is calculated and on the total cost for all of these items in time of foreman and our labor for this period of time. This is deferred rental income cost which we estimate to be approximately two to three weeks and can be derived by adding up foreman time and time required to do these items. During this time, we are not receiving any income whatsoever from the building. Of course our mortgage payment, taxes and lack of rent all go on to the cost we should have recouped out of the other change orders previously with your agency, but being a little new to this business have not pushed this item. We want to recover this because we feel the burden to complete these items is being unfairly placed on us by not receiving rent or compensation while the carrying costs and mortgage costs are totally on our shoulders. Appellant's Exhibit 29 at 3. Appellant was paid $3,463 of overhead or mark-up on a total billing of $28,700 for the alarm system. Transcript at 261; Supplemental Appeal File, Exhibit 15 at 5. Appellant was paid "overhead profit, management, and contingencies in the amount of $650 on an $1,800 item, a special electrical hook-up for work stations." Supplemental Appeal File, Exhibit 15 at 10; Transcript at 263. Appellant was paid a 15% "overhead profit, job management fee of $388 on a lock box item." Supplemental Appeal File, Exhibit 17 at 5; Transcript at 263. Appellant was paid 15% overhead supervision and profit on $4,088 for the fire system/sprinkler. Supplemental Appeal File, Exhibit 20 at 1; Transcript at 264. On May 15, the U.S. Attorney's Office began occupancy of the building. Transcript at 61. The building was fully occupied by May 20, 1991. GSA accepted the building before the security system was completely installed. Id. at 400-01. The Claim On September 21, 1992, appellant submitted to the contracting officer a claim for $67,570.30 to recover five months of "past due rent" attributed to the delays and for additional amounts to recover its costs to accomplish the increase in the scope of work. Appeal File, Exhibit 4 at 4-7. According to appellant, the build-out would have been completed on December 13, 1990, absent Government delay to the project. Included in this claim were the following items: Item Amount A. Rent for Delay of Work $67,570.30 B. Late payments (interest expense) $10,125.00 C. Fines and penalties (city of Eugene -- occupancy without certificate) $ 2,800.00 D. Glass (replacement of skylights) $ 6,166.25 E. Interest and attorney fees $ 7,740.50 F. Panic bars $ 3,000.00 G. Hirsh equipment $ 1,000.00 H. Ignored items $ 5,000.00 I. ADT security and fire monitoring systems $ 5,750.00 J. Safeguard security $ 5,000.00 K. STC rates walls $16,284.72 L. Meeting transcript 0 Appeal File, Exhibit 4 at 2. Appellant's claim with what purported to be supporting documentation was 398 pages. Id. at 1-398. During a March 26, 1993, meeting with the contracting officer, appellant was informed that his claim would need to conform with the Cost Accounting Standards (CAS) guidelines because appellant's claim to recover delay costs could not be claimed as rent. Transcript at 205-07. Specifically, appellant testified that he was advised: "We don't pay rent. We owe you an equitable distribution here, but it cannot be claimed as rent. We need to redo this in some other manner and submit it to us under those guidelines and come under the CAS guidelines or whatever . . . ." Id. at 205. By letter dated March 29, 1993, appellant informed GSA: The following outlines what is my understanding of what we have agreed to. I welcome your immediate comments if you differ from my understanding. ITEM: A-1 Additional Claim for Rent It was my intent to present this as an additional claim at our meeting, thus the reason for the label "Additional Claim For Rent". After reading and discussing this "Claim", it was agreed . . . that this adjustment was due and that this will be handled as a supplemental change and not a claim. A lump sum payment for 23 months, in the amount of $8,947.46 which equals the amount of the claim $23,341.50 divided by the 60 month term = 389.02 per month X 23 = the $8,947.46. We agreed that this supplemental Lease Agreement would be processed within 30 days of our meeting date i.e by April 26, 1993. We further agreed that the lease would be amended with the May 1, 1993 payment to reflect a monthly increase of $389.02. ITEM A: Labeled (Incorrectly) Past Due Rent This claim will be reworked by me and re-submitted as a claim for delay, capital costs and overhead. The revised claim will be re-submitted to your office by April 26, 1993. Appeal File, Exhibit 6. On April 22, 1993, appellant resubmitted Claim A, which had previously been labeled as past due rent, and changed the name of that claim to "overhead capital and administrative cost caused by delays outside the control of the contractor." Supplemental Appeal File, Exhibit 27. Appellant characterized the amount he is claiming in this appeal as "capital costs such as property taxes, utility costs, loss of rent, the facilities cost, whatever little ticket you want to put on it that is a capital cost of owning that asset out here." Transcript at 201. Appellant explained his revised claim: This letter is - after meeting with the contracting officer and saying, 'We don't pay rent; you'll have to comply with CAS,' -- how I broke this down to comply with that, and, you know, we go back into semantics here -- rent, capital costs, interests -- capital costs -- I'm an accountant. Capital costs is interest. You can name it whatever you want. Maybe it has a legal term. You know, it goes back to the old deal, 'If it quacks like a duck, walks like a duck, flies like a duck, it's a duck.' Capital costs, interest -- that's what it is. If that doesn't meet here, then I would say, 'Scratch that out and put 'capital costs' by it. Put 'cost of money' by it.' Same thing. Id. at 207-08. The revised claim sought: Interest: $67,968 /12= $56640 [sic] x 5 = $28,320 Other Interest: 8,200 Taxes $11,666 /12 = $944.66 x 5 = 4,723 Utilities 700 Administrative Overhead 5 mon. @ $4,000 20,000 Supplies and Support 2,000 Claim Preparation Direct Cost Typing 1,000 Time 80 hours @ $50.00 per hour 4,000 TOTAL $68,943 Supplemental Appeal File, Exhibit 27. The $67,968 noted on the first line of the revised claim represented "mortgage interest paid to banks, etc." and was reflected on appellant's 1991 tax return as the total mortgage interest relating exclusively to the Chia Towers building. Appellant's Exhibit 42. Appellant then divided this figure by twelve to obtain the monthly mortgage interest and then multiplied that monthly amount by five to yield the $28,320 being claimed here. Supplemental Appeal File, Exhibit 27; Transcript at 208-09. Interest of $8,200 reflected on appellant's 1991 tax return was also claimed in full in the revised claim. Appellant's Exhibit 42; Supplemental Appeal File, Exhibit 27; Transcript at 210. Appellant testified that this $8,200 interest figure was derived as follows: "There's a first mortgage on the building with a lender, and then there's a state of Oregon, Department of Energy loan on the building, and an allocated loan from another building that's capital cost of funds that went into pay -- to complete this building." Transcript at 210. Appellant acknowledged that this $8,200 figure should have been divided by twelve and multiplied by five. Thus, the correct number should have been $3,415. The tax in Claim A was $11,666, but it should have been $11,336. Id. at 211; Appellant's Exhibit 42; Supplemental Appeal File, Exhibit 27. The $700 for utilities was appellant's "guesstimate." Transcript at 212. Appellant submitted his actual bills and totaled the bill for electric, water, and light as $1,407.93 for the five months in question; this should replace the $700 estimate. Appellant's Exhibit 46; Transcript at 213. Appellant explained his claim for administrative and overhead costs of five months at $4,000 for a total of $20,000 as follows: "This is lumped together here as actually a minimum figure of support, and I did not itemize on here and did not go the trouble to pull all this out, but it's travel and lodging, food, phone -- all the administrative costs and overhead you have in running a job like this -- running what we'll say, per se, is an office in order to get a job like this completed. And that's what's in that." Transcript at 214. This did not include appellant's time, which he separately billed at $50 an hour for eighty hours for another $4,000. Id. When asked how many hours he personally expended after January 1, 1991, to complete the build-out, appellant testified: I do not keep a daily log. I do not keep a daily calendar log where I put my time on. This project was consuming from January until the end of June of 1991, and, you know, it's hundreds and hundreds of hours that were put into it. Transcript at 214-15. On July 8, 1993, the contracting officer issued a decision regarding appellant's September 1992 claim, stating that rental payments had been recalculated in a supplemental lease agreement (SLA 10) to recompute rent back to May 20, 1991, and that any amount owed to appellant would be paid through this agreement. Appeal File, Exhibit 7. On March 22, 1994, in answer to respondent's interrogatory number four, requesting that appellant state the amount and basis for the amount claimed, appellant increased his claim to $107,883, broken down as follows: Annual Facilities capital cost of money $30,051 (12/20/90 through 5/20/91) Real Property Taxes $ 4,723 (5/12ths of Annual amt. pd.) Utilities for Chia Tower $ 700 Home Office Overhead, Travel Expenses and Administrative Labor $32,000 Supplies and Support $ 2,000 Typist Costs for Claim Prep. $ 1,000 Administration labor for claim preparation (80 hrs @ $50 per hour) $ 4,000 Profit on Additional Work $33,409 TOTAL $107,883 In submitting his witness and exhibit lists to the Board on April 19, 1994, appellant again revised the amounts claimed, as follows: Real Property Taxes $ 4,723 Mortgage Interest Expense $ 36,520 Utilities $ 1,842.47 Clerical support, travel expense, station[e]ry $ 2,445.80 640 hours construction management time @ $50 $ 32,000 80 hours in settlement of changed items @ $50 $ 4,000 Typing claim costs $ 940.79 Profit rate of 20% on costs and direct overhead $ 33,409 TOTAL $115,881.06 In his posthearing brief, appellant revised his claim again, as follows: Job Site Utilities $ 2,066.47 Real Property Taxes 4,905.90 Building Capital Costs 31,219.22 Personal Services 20,000.00 Typing, Travel & Office Supplies 1,513.43 Clerical - Typing 940.79 TOTAL $60,645.81 Appellant's Posthearing Brief at 14. Discussion The Government's Motion to Dismiss the Cost-of-Facilities Claim GSA has moved to dismiss the portion of appellant's claim in the amount of $31,219.22 which appellant now characterizes as "building - capital costs," or "facilities capital cost of money." GSA argues that while appellant did present an interest claim to the contracting officer, he did not raise a claim for facilities capital cost of money, a legally different claim, until this litigation, thus warranting dismissal of this latter claim because it was not the subject of a contracting officer's decision. We deny the motion because the substance of the claims and their factual predicates are identical; the only difference is their nomenclature. In his original claim, appellant denominated the claim as rent for delay of work or interest. Upon being advised that the Government would not pay rent, appellant resubmitted the claim, changing the "label" of the claim, but not what it represented. Appellant had from the outset claimed that the delays caused him to incur increased carrying costs on the building which included property taxes, utility costs, and interest -- in his words, "whatever little ticket you want to put on it that is a capital cost of owning that asset out there." Transcript at 201. Appellant's methods of calculating the claim further demonstrate that there is a single basis for these differently denominated claims. Appellant offers two alternative "approaches" for calculating the amount due under this claim: first, a facilities-capital-cost-of-money approach set forth in the Federal Acquisition Regulation (FAR), using the annual applicable cost of money rate of 8.375% over a 158-day period, and second, the "actual interest he paid on loans against the building at the time which accrued at the rate of $208.67 per day for a total over 158 days of $32,969.86." Under both calculations, appellant is seeking compensation for the same occurrence, i.e., a 158-day delay. Appellant's Posthearing Brief at 8-9, 14. To attempt to distinguish facilities cost of money from interest, GSA relies on the FAR's definition of facilities cost of money, which states: (a) Facilities capital cost of money- (1) General. (i) Facilities capital cost of money (cost of capital committed to facilities) is an imputed cost determined by applying a cost-of-money rate to facilities capital employed in contract performance. A cost-of-money rate is uniformly imputed to all contractors . . . . Capital employed is determined without regard to whether its source is equity or borrowed capital. The resulting cost of money is not a form of interest on borrowings . . . . 48 CFR 31.205-10 (1991) (FAR 31.205-10) (emphasis added). We are not persuaded that what might well be a valid legal distinction warrants partial dismissal of this appeal. It matters not that appellant has recharacterized the legal theory under which he claims entitlement here. As the Board recognized in Stroh Corp. v. General Services Administration, GSBCA 11029, slip op. at 26 (Mar. 29, 1996), even if a different legal theory were argued before the Board than was presented to the contracting officer, when "the facts underlying such a recovery were effectively presented to the contracting officer in [the] original claim and are not substantively different from those litigated before the Board . . ., there is no jurisdictional bar to recovery." Similarly, in the instant case, identical facts underlie the facilities capital cost of money and interest claims. We would be placing form over substance were we to dismiss this claim for lack of jurisdiction because it has been labeled differently or has sought recovery under an alternate legal theory.[foot #] 2 Appellant Has Failed to Prove GSA was the Sole Cause of Delay in the Build-out or that the Delay Impacted Overall Progress Appellant contends that the Government's changes to the build-out and failure to provide timely authorization to proceed with the changes caused a delay to the project's completion. But for the Government's actions, appellant argues, the project would have been completed and occupancy would have occurred on December 13, 1990, rather than on May 20, 1991. Appellant's Posthearing Brief at 11. Appellant seeks an equitable adjustment for the delay costs incurred during this extended period.[foot #] 3 It has long been established that in order to recover delay costs a contractor must supply specific proof that the Government's unreasonable delay caused it to extend performance. Commerce International Co. v. United States, 338 F.2d 81, 89 (Ct. Cl. 1964); see also Commercial Contractors, Inc. v. United States, 29 Cl. Ct. 654, 662 (1993) ("In order to hold defendant liable for delays, plaintiff must supply specific proof that ----------- FOOTNOTE BEGINS --------- [foot #] 2 GSA also moved to dismiss appellant's claim for profit in the amount of $33,409. We need not address this since appellant has abandoned its claim for profit in his posthearing brief. In his posthearing brief, appellant's claim was limited to utilities, taxes, building capital costs, personal services, typing, travel, and office supplies. No portion of this claim was denominated profit. [foot #] 3 Appellant has already been compensated for the additional work via supplemental lease agreements. This claim concerns only appellant's alleged uncompensated costs due to the delay in occupancy. ----------- FOOTNOTE ENDS ----------- plaintiff's performance was affected by the Government's undue delays . . . . [T]he mere allegation that delays caused work to be disrupted or performed out of sequence, or caused costs to be increased, will not satisfy plaintiff's burden of proof."). Stated succinctly, "it is [the contractor's] burden to convince us of the impact on the overall completion of the project." Further, in order to support a claim for Government-caused delay, a contractor "must show that the Government was the sole proximate cause of the delay and that there were no concurrent causes which would have equally delayed the project." 301 Howard Street Associates v. General Services Administration, GSBCA 10971, et al., 94-1 BCA 26,450, at 131,600 (citation omitted), reconsideration denied, 94-2 BCA 26,697. As our appellate authority has recently recognized, "when both parties share responsibility for delays, neither merits damages unless the delays can be apportioned between the parties." Kelso v. Kirk Bros. Mechanical Contractors, Inc., 16 F.3d 1173, 1177 (Fed. Cir. 1994). "The general rule is that '[w]here both parties contribute to the delay neither can recover damage[s], unless there is in the proof a clear apportionment of the delay and expense attributable to each party." William F. Klingensmith, Inc. v. United States, 731 F.2d 805, 809 (Fed. Cir. 1984) (citations omitted). Appellant has identified several actions of the Government which he claims caused delay in performing the build-out: the increased security recommendations, the lack of written authorization to proceed with changes, the failure to confirm location of a ballistic wall, and the delay in furnishing electrical layout drawings. In each instance, appellant has neither proved that the delay impacted his ability to perform the build-out or that these delays were the sole cause of the overall delay. There is no basis on this record to clearly apportion the delay or any associated expense. Security Although appellant anticipated a delay of thirty to forty- five days to accomplish the security recommendations, appellant has not quantified the actual delay which resulted from the enhanced security requirements. Appellant also stated that the security recommendations caused him to tear down existing walls because the soundproofing specifications were changed. Transcript at 72-77. However, appellant has not demonstrated any impact on the overall build-out due to any security-related changes. Appellant failed to offer any type of critical path or work schedule or documentation indicating the impact of the security changes on the build-out process. It is unclear how the security changes would have had an impact, since the building was accepted for occupancy before the security system was completely installed. Transcript at 401. Moreover, GSA's realty specialist's testimony and appellant's own testimony suggest that appellant unreasonably failed to understand what was required by the security recommendations and that some delay was his fault. In discussing the status of the project as of April 9, appellant said, "Some of the special locks that went in the interior of the building weren't in my possession or authorized even at that point and a couple of them, I didn't even know what they were. Combination locks -- I hadn't located those. I didn't even know what they were." Transcript at 101; see, id. at 161-62. Even assuming that the governmental changes caused a delay to the project, the record indicates that appellant by its actions and inactions was a concurrent cause of delay. Although the original lease required appellant to install an interior ballistic door and a ballistic transaction window, each requiring a lead time of approximately six weeks, appellant did not order these items until some time after December, because he chose for his own convenience to wait for clarification regarding one ballistic wall so that all ballistic materials could be placed in one order. Transcript at 244. Delay in Providing Authorization and Information Appellant argues that the contracting officer's failure to provide written authorization for changed work caused a delay to the project. In particular, appellant claims that he could not proceed with changes associated with the September 26 layout drawings because the Government failed to issue a supplemental lease agreement for these changes until late November. Even assuming that appellant acted reasonably in awaiting written authorization, he has failed to quantify the delay attributable to the Government's delay in issuing the SLA. Appellant has not established that this lack of written authorization impacted his performance on the overall project. Appellant has not shown that absent this delay, he would have met the original occupancy date or sooner completed the project. Delay in the Layouts Appellant also alleges that the Government delayed the project because it failed to provide appellant with the necessary electrical plans and information in a timely manner.[foot #] 4 GSA was eight days late in providing these plans. However, appellant has not demonstrated how this delay impacted his progress. Further, appellant delayed far longer in providing GSA with paint and carpet samples. Rather than providing these along with the shell plans (which appellant provided preaward), he waited until January 14, 1991 -- some four months after award. Fire Codes Appellant testified that the project experienced a two-week delay due to building permit and fire code problems. Transcript at 237. Although the Government provided layout drawings which failed to conform to applicable fire codes, appellant has not demonstrated the extent, if any, of a delay in the completion of the project attributable to such agency action. Conclusion It is clear that the build-out process took longer than both parties expected. The weight of the evidence indicates, however, that both appellant and GSA were responsible for the extended period. In sum, his failure to order ballistic material on time, and his failure to provide samples on time, his lack of understanding of the security recommendations, his improper application of STC ratings to exterior walls, were all factors which contributed to the delay in the build- out.[foot #] 5 Appellant has not demonstrated that he would or could have completed the project earlier had the Government not delayed particular aspects of performance. ----------- FOOTNOTE BEGINS --------- [foot #] 4 To the extent that appellant is also claiming that the layout drawings caused a delay because they radically departed from the lease and substantially altered the requirements, such a claim must fail. The layouts increased certain quantities as contemplated by the lease and imposed other changes which have not been shown to have impacted the overall construction. [foot #] 5 Moreover, there is uncontroverted evidence that appellant was experiencing financial difficulties which may have impacted his ability to perform. Further, there is a lack of explanation by appellant as to why there was so little progress on the job as of the November site visit by GSA's realty specialist and as reflected in a November 30 letter from the U.S. Attorney's Office representative. Supplemental Appeal File, Exhibit 32. Finally, there is also evidence that appellant allowed the elevator installation subcontract to expire, when he could have installed the elevator earlier, and that he was forced to renegotiate that contract using counsel. Transcript at 277-79. ----------- FOOTNOTE ENDS ----------- Under these circumstances, appellant has failed to meet his burden of proof, and he is not entitled to an equitable adjustment for the delayed occupancy date. Pittman Construction, GSBCA 4897, et al., 81-1 BCA 14,847, at 73,310, reconsideration denied, 81-1 BCA 15,111; Minmar Builders, Inc., GSBCA 3430, 72-2 BCA 9,599, at 44,859; Poole & Kent Corp. - Washington, VACAB 1086, 75-1 BCA 11,186, at 53,278. Decision The appeal is DENIED. ____________________________ MARY ELLEN COSTER WILLIAMS Board Judge We concur: ____________________________ ____________________________ STEPHEN M. DANIELS JOSEPH A. VERGILIO Board Judge Board Judge