Board of Contract Appeals General Services Administration Washington, D.C. 20405 ____________________________________________________ GSBCA 12710 GRANTED; GSBCA 12294, 12523,12690, 12907 GRANTED IN PART; GSBCA 12841, 12842 DENIED IN PART: October 23, 1998 ____________________________________________________ GSBCA 12294, 12523, 12690, 12710, 12841, 12842, 12907 SAE/AMERICON - MID ATLANTIC, INC., Appellant, v. GENERAL SERVICES ADMINISTRATION, Respondent. Peter M. D'Ambrosio, Mark E. Hanson, Eun K. (Julie) Chung, and John Marshall Cook of Smith, Pachter, McWhorter & D'Ambrosio, Vienna, VA, counsel for Appellant. Robert C. Smith, Martin A. Hom, Kevin S. Anderson and Nora P. Huey, Office of General Counsel, General Services Administration, Washington, DC, counsel for Respondent. Before Board Judges BORWICK, HYATT, and VERGILIO. HYATT, Board Judge. These consolidated appeals arise under a contract for the construction of the Trenton Courthouse Annex for the firm, fixed price of $22,519,000. The appeals are from contracting officer's decisions (a) denying claims totaling $10,375,448.81 in equitable adjustments and (b) terminating the contract for default for failure to make progress adequate to ensure completion of the work in a manner that would meet the contract completion date. Given the amount of excusable and Government- caused delay demonstrated by the contractor, SAE/Americon - Mid Atlantic, Inc., we find that the Government improperly terminated the contract for default and convert the termination to one for the convenience of the Government. Resolution of the amount of any quantum to which SAE may be entitled based on Government- caused delay, changed work, and the termination of its contract is deferred for consideration in conjunction with a settlement proposal based on the termination for convenience.[foot #] 1 Findings of Fact Background 1. Contract number GS-03P-91-CDC-0006, for the construction of an annex to the existing Trenton Federal Courthouse in Trenton, New Jersey, was awarded by the General Services Administration (GSA) to SAE on April 26, 1991. The annex was designed as a seven-story building with a two and one- half level underground parking garage. The contract drawings and specifications delineated a structural steel frame, and metal decks with concrete slab floors, and fireproofing, over drilled pier caissons. The exterior wall was designed as a metal stud backup covered with vapor barrier sheathing, building paper, and an exterior veneer of limestone or ground-faced block. On the north side of the building, the contractor was to install a curtain wall, or beacon, which is an architectural feature made ----------- FOOTNOTE BEGINS --------- [foot #] 1 During the hearing of these appeals, discussions arose between counsel and the Board concerning the proper focus of testimony in light of Government objections to exhibits and testimony from subcontractors with respect to monetary claims. The principal basis for the objections was surprise based on the fact that quantum claims and supporting information had been updated, but not earlier provided, to counsel for respondent. The discussion centered on issues of efficiency and economy in litigating the full panoply of quantum issues when a successful challenge to the default action would result in these issues being subsumed in a termination for convenience recovery. See, ___ e.g., Nolan Brothers, Inc. v. United States, 405 F.2d 1250 (Ct. ____ ______________________________________ Cl. 1969); PBI Electric Corp. v. United States, 17 Cl. Ct. 128 ____________________________________ (1989); Foremost Mechanical Systems, Inc. v. General Services ----------- FOOTNOTE BEGINS --------- Administration, GSBCA 12335, et al., 95-1 BCA 27,382 (1994). ______________ Following these discussions, the parties, and respondent in particular, focused principally on the merits of the delay case presented by SAE to rebut the Government's case in support of its termination decision. Although appellant has presented proposed findings with respect to quantum, respondent, in reliance on these discussions, did not brief these issues. Given the Board's determination that the default termination action was improper, quantum issues are deferred for resolution in connection with a termination for convenience settlement proposal. To the extent further proceedings are required, the evidence already in the record concerning quantum will be considered at that time, as will be any supplementary evidence and argument necessary for resolution of any monetary amounts which SAE may claim under a termination for convenience settlement. ----------- FOOTNOTE ENDS ----------- of an aluminum frame with glass that hangs outside of the building and does not structurally support any part of the building. Transcript at 64-65; Appeal File, GSBCA 12253[foot #] 2, Exhibit 1. 2. In February 1989, GSA awarded an architect-engineer contract to the Vitetta Group for design services to develop conceptual, tentative, 50% working and 100% construction drawings and specifications to be used by GSA to solicit bids for construction of the annex. GSA's contract with Vitetta required the architect to conduct subsurface geotechnical investigations. Hearing Exhibit A-288.[foot #] 3 Under its contract with GSA, Vitetta was also responsible for reviewing submittals of shop drawings to ensure compliance with contract requirements. Appeal File, GSBCA 12253, Exhibit 3, 01010, 1.02, and 01300; Transcript at 2929-40. 3. GSA's construction quality manager for the project was O'Brien-Kreitzberg & Associates (OKA). Appeal File, GSBCA 12253, Exhibit 3, 01010, 1.02. In 1989, GSA entered into a contract with OKA for the provision of construction quality management services. That contract called for extensive services to be provided in the managing of the overall project, from development of a design for construction to the completion of the construction process. Under this contract, OKA participated in design reviews, constructability reviews of the design, identification of defects, conflicts, ambiguities, and irregularities in contract documents, and was expected to review and monitor schedules for both design and construction of the building. During construction OKA was charged with the responsibility to inspect the general contractor's work for conformity with the contract and to advise the contracting ----------- FOOTNOTE BEGINS --------- [foot #] 2 GSBCA 12253 was the first appeal filed by SAE in connection with this contract. It was dismissed without prejudice on December 12, 1994, by agreement of the parties. The appeal file submitted in connection with this dispute contained the contract and specifications referred to in this decision. The dispute raised in GSBCA 12253 was incorporated in GSBCA 12907, which combined the consolidated claims arising under the contract for the contracting officer's consideration as a whole. GSA subsequently submitted a large multi-volume appeal file under GSBCA 12907, which is the principal appeal file referred to in this decision. The documents in the appeal file for GSBCA 12253 were not resubmitted in the omnibus appeal file for GSBCA 12907, however. We thus continue to refer to that appeal file, even though the underlying appeal was dismissed. [foot #] 3 At the hearing in these cases, both appellant and respondent introduced numerous exhibits not previously included in the appeal files. Hearing exhibits offered by appellant are prefaced with an "A" before the exhibit number; respondent's hearing exhibit numbers are prefaced with an "R." ----------- FOOTNOTE ENDS ----------- officer of instances where the general contractor failed to correct or replace work identified as nonconforming or rejected. In addition, OKA was responsible for scheduling and tracking the submittal, review, and approval of shop drawings, samples, and other submittals. OKA was to assist the contracting officer with changes to the construction contract, including performing a review of the merits of change order requests, negotiating settlements, and determining the impact of changed work on the contract completion date. Hearing Exhibits A-71, A-72. 4. In performing under its contract, in response to issues arising in both the design and construction phases of the Trenton project, OKA retained the services of several consultants to provide expert design services on behalf of GSA. These subcontractors included Seelye, Stevenson, Value & Knecht (SSVK), Wiss Janney Elstner (WJE), and Dames & Moore. Transcript at 4146-48; Hearing Exhibits A-72, A-902. SAE's Initial Strategy 5. The invitation for bids (IFB) for the construction of the annex was issued in January 1991, and included the construction drawings and specifications prepared by Vitetta. Bids were received by GSA on March 19, 1991. Hearing Exhibit A- 423. 6. In January or February 1991, SAE, one of the larger construction contractors in the world, first contemplated submitting a bid to construct the Trenton annex. Transcript at 49-53. SAE was experienced in building courthouses and in working on projects with the United States Government. Transcript at 53-56. SAE also had personnel in the Philadelphia/Trenton area with experience in public construction projects of a similar size and nature. Transcript at 58. 7. Under the contract, the project was to be completed within 760 calendar days after receipt of the notice to proceed. The notice to proceed was received by SAE on May 16, 1991, establishing June 13, 1993, as the completion date. Hearing Exhibit R-94. SAE initially hoped to complete the project in eighteen months and submitted a construction schedule reflecting this goal. Transcript at 150. For various reasons, the eighteen-month schedule was never approved by GSA or OKA. Transcript at 152-54. 8. A memorandum written by the initial SAE project manager during the early stages of performance referred to SAE's strategy to win both the Trenton contract and another construction contract for the federal courthouse in nearby Camden, New Jersey, and negotiate and award the subcontracts on both projects simultaneously. SAE was not awarded the Camden project, however, and thus was not able to proceed on this basis. The internal memorandum speculated that as a result, the award of subcontracts on the Trenton project may have been delayed. The memorandum states that as of September 1991, six subcontracts had been awarded and executed, although many other subcontractors had been locked-in in principle. The memorandum's author expressed concern that this might contribute to delays in the submittal of subcontractor shop drawings because subcontractors were not starting drawings until their contracts were in place. Appeal File, Vol. IX, Book I, Exhibit 11. 9. The initial SAE project manager also observed that, as of September 25, 1991, the project was already forty days behind schedule. Although he considered a good portion of this attributable to Government-caused and excusable delays associated with the caisson work, at the same time, he noted that SAE was also considering how to cope with performance problems with its sheeting and shoring contractor, Keystone Foundations. Appeal File, Vol. IX, Book I, Exhibit 11. 10. As of September 25, the SAE project manager expressed concern that SAE's plan to complete contract performance in eighteen months was overly aggressive and not realistic, although he also noted that liquidated damages should not be a concern because the contract allowed twenty-five months to complete. Appeal File, Vol. IX, Book I, Exhibit 11. 11. In his testimony at the hearing, however, the initial SAE project manager stated that prior to bidding the project, SAE consulted with trade contractors, including caisson, sheeting and shoring, concrete, structural steel, masonry, and glass and glazing subcontractors, to obtain their views on how the work could be expected to proceed. The trades verified SAE's analysis of the contract documents and specifications. Transcript at 139. Once SAE received the contract award, it proceeded to enter into subcontracts with the appropriate trades. This was done in the order in which work would be performed. More than two-thirds of the work was at least informally subcontracted by July 1991; the bulk of the subcontracts were locked in by September 1991. To the extent some subcontracts were not awarded by that time, these were for contract work that was not to be performed for some time to come, and had no impact on SAE's ability to perform in a timely fashion. Transcript at 156-57. Contract Administration and the Shop Drawing Submittal Process 12. The contract contained the usual Federal Acquisition Regulation (FAR) clauses applicable to a fixed-price construction contract, including the Changes clause (FAR 52.243-4 (8-87)), the Differing Site Conditions clause (FAR 52.236-2 (4-84)), the Suspension of Work clause (FAR 52.212-12 (4-84)), and the Default Termination clause (FAR 52.249-10 (4-84)). The Default Termination clause provided, in pertinent part: 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 work (or the separable part of the work) that has been delayed. Appeal File, GSBCA 12253, Exhibit 2. In addition, with respect to specifications and drawings the contract provided that: Where "as shown" "as indicated," "as detailed," or words of similar import are used, it shall be understood that the reference is made to the drawings accompanying this contract unless stated otherwise. Appeal File, GSBCA 12253, Exhibit 2. 13. The contract vested authority in Vitetta to review SAE's submittals and shop drawings. Work was not to be released for fabrication or materials procured for installation on the project until submittals were approved by Vitetta. Vitetta could impact fabrication or procurement by requiring resubmittal of drawings incorporating Vitetta's notations or by rejecting the submittals outright, and requiring resubmittals. The contract specifications provided that: Architect will indicate findings of his review on the Architect's Stamp and on the Submittals Transmittal, and if appropriate by notation on submittal, as follows: 1. Reviewed: Work may be fabricated or procured, and installed, as described in submittal. 2. Reviewed with Notations: Work may be fabricated or procured as described in the submittal as modified by notations, but may not be delivered to the site or installed. A transmittal is required, verifying inclusion of notation information. 3. Revise and resubmit: Work may not be fabricated or procured. A resubmittal is required incorporating information found to be lacking or erroneous. 4. Rejected: Work may not be fabricated or procured: Submittal is considered inconsistent with requirements in Contract Documents. Resubmittal is required. The contract also provided that "[i]f, in the course of review, [the] Architect/Engineer determines that non-compliance with requirements of this section or other Contract Documents indicates inadequate review by Contractor, Architect/Engineer will reject and return submittal without further review." Appeal File, GSBCA 12253, Exhibit 3, 01300, 1.09. 14. With respect to the drawing submittal process the contract further required: Where action and return is required or requested, the Contracting Officer will review each submittal, mark with Action, and where possible return within 2 weeks of receipt. Where submittal must be held for coordination, Contractor will be so advised. 1. Final Unrestricted Release: Work may proceed, provided it complies with contract documents, when submittal is returned marked "Approved." 2. Final-But-Restricted Release: Work may proceed, provided it complies with notations and corrections on submittal and with contract documents, when submittal is returned marked "Approved as Noted." 3. Returned for Resubmittal: Do not proceed with work. Revise submittal in accordance with notations thereon, and resubmit without delay to obtain a different action marking. Do not allow submittals marked "Disapproved, Resubmit" (or unmarked submittals where a marking is required) to be used in connection with performance of the work. 4. Other Action: Where submittal is returned for other reasons, with the Contracting Officer's explanation included, it will be marked "Action Not Required." Appeal File, GSBCA 12253, Exhibit 3, 01300, 1.11A. 15. The contract also called for the development by the contractor of a critical path method (CPM) network plan demonstrating complete fulfillment of all contract requirements, with this plan to be updated regularly and used in planning, performing, reporting, and coordinating the work. The contract required that the CPM plan be developed through the activity-on- arrow diagraming method (ADM). Adjustments to scheduled times for completion of the work were to be made only in accordance with the CPM clause. Each request for a time extension based on claimed delays or changed work was to be accompanied by a time impact analysis (TIA), based upon the date or dates when changes were issued or delays began. Appeal File, GSBCA 12253, Exhibit 3, 01311. With respect to TIAs, the contract explicitly required: 1. The Time Impact Analysis shall be based upon the date or dates when the change or changes were issued, or the date or dates when alleged delay or delays began, the status of the Construction Project at that time and shall include event time computations for all affected activities. 2. If the Contracting Officer finds after review of the Time Impact Analysis that the Contractor is entitled to any extension of time for completing any of the milestone times for completion, the time adjustments will be approved by the Contracting Officer, whether or not the time for completion of the overall project is extended thereby, and the Contractor will then be directed to revise the Project Schedule accordingly. 3. If the Contractor does not submit a Time Impact Analysis for a change or alleged delay, or provide such additional supporting information as the Contracting Officer may require within the specified period of time, or within such additional time as may be allowed by the Contracting Officer. [sic] The Contracting Officer will determine the time impact, if any, of the change alleged delay. . . . If this results in a determination that no adjustments should be made, the Contracting Officer will issue said determination and Time Impact Analysis to the Contractor at the time of directing such adjustment of the time for completion. Appeal File, GSBCA 12253, Exhibit 3, 01311. Following issuance of the notice to proceed, SAE submitted, and GSA approved, an initial 120-day construction schedule (covering preliminary activities to be performed under the project) as required by the contract. Transcript at 149-50. 16. The contract also defined certain milestone events and maximum periods for completing these events from issuance of the notice to proceed (NTP): Description Days from NTP 1. Caissons completed, subbasement walls. 70 2. Complete concrete through first floor slab ready to start steel construction. 180 3. Steel erected and plumb, metal deck and all related work complete and ready for concrete placement on initial three elevated slabs above first floor. 250 4. Three levels of elevated concrete slab Description Days from NTP above first floor complete and ready for exterior wall. Mech/elec rough-in started. 295 5. Start exterior masonry above limestone (scaffold erected and one floor of sheathing complete). 310 6. Four levels of mech/elec rough-in complete. Mech room, mech & elect working. 360 7. Building watertight, roofs, exterior walls, glazing all complete. 400 8. Mech & elect complete on all floors, equipment installed, start full system testing except air balance. 490 9. East or west half of one courtroom floor substantially complete except for painting, carpet, drapes, and other appropriate finish items as approved by CQM. 530 10. Interior finishes, millwork, doors & hardware security systems all complete (except touch-up painting, carpet, and drapes) ready for punch list. 730 Contract Completion 760 Appeal File, GSBCA 12253, Exhibit 3, 01311. 17. Following submission of the preliminary 120-day schedule, SAE submitted an eighteen-month duration construction schedule in CPM format. The schedule contained about 250 activities. Transcript at 150. SAE's schedule was prepared using the precedent diagram method (PDM); SAE contended that this method was functionally equivalent to the arrow diagram method (ADM) required under the contract. Transcript at 150, 152-53, 234-38. Although the contract did not prohibit a schedule projecting early completion, this particular schedule was never approved. Finding 7. 18. At the time that SAE's initial eighteen-month schedule was submitted, the contracting officer and OKA believed SAE's schedule was achievable and not submitted with the intention of creating claims on the project. Deposition of James Concannon (Concannon Deposition), Vol. 2 at 256-57. Other GSA personnel were skeptical of the compressed schedule, however, and advised against approval of an eighteen-month schedule. Deposition of Marc Mitchelson (Mitchelson Deposition) at 24-25. Vitetta also advised against approval of SAE's eighteen-month schedule. Concannon Deposition, Vol. 2 at 239-40. 19. During the early days of contract performance, SAE submitted monthly updates of its eighteen-month schedule to OKA. In addition, SAE prepared weekly updates for its own internal planning purposes. Transcript at 154-55. SAE also held weekly meetings with subcontractors to coordinate work in the field. Transcript at 159. Excavation and Foundation Work Excavation and Installation of Caissons 20. The contract documents included specifications and drawings that described the required work for construction of the caissons. The solicitation documents also provided geotechnical data related to subsurface conditions. Hearing Exhibit A-261; Transcript at 141-42. The geotechnical data made available to prospective bidders was produced in connection with a subsurface investigation conducted by Earth Engineering Services (EES) at the request of Vitetta. Hearing Exhibit A- 261.[foot #] 4 ----------- FOOTNOTE BEGINS --------- [foot #] 4 The Geotechnical Report produced by EES stated that the scope of the investigation "consisted of a site and subsurface investigation, laboratory testing of representative soil samples and an engineering analysis of pertinent site and subsurface data." Hearing Exhibit A-261. ----------- FOOTNOTE ENDS ----------- 21. Section 02380 of the contract specifications required the contractor to: Provide concrete caissons to the extent of which is shown on the Drawings, including locations, diameters of shafts, estimated bottom elevations, top elevations and details of construction. Appeal File, GSBCA 12253, Exhibit 3; Hearing Exhibit A-260. The specifications called for installation of eighty-five reinforced concrete caissons. The contract additionally required that SAE: Drill caisson shafts down to sound rock acceptable to the soils engineer as capable of supporting 60 tons per square foot [tsf]. . . . When caissons bear on rock, socket the bottom . . . at least 6 inches into rock with required bearing capacity. Appeal File, GSBCA 12253, Exhibit 3, 02380, 3.02(D) & (E). The locations and elevations of the caissons were shown on drawings 9-S-1 and 9-S-2. The excavation of caisson work was defined by the contract as "unclassified." This meant that appellant was responsible for the removal of all materials from the ground surface down to the completion of the caisson. Transcript at 2395. 22. The contract specified that drilling equipment shall be "power driven auger type." Appeal File, GSBCA 12253, Exhibit 3, 02380, 2.01. 23. Appendix A to the solicitation contained geotechnical data and information concerning subsurface conditions. The Geotechnical Report stated that: The objective of the geotechnical investigations is to provide an assessment of foundation conditions and recommended criteria pertaining to foundation design and construction. The scope of the investigation consisted of a site and subsurface investigation, laboratory testing of representative soil samples and an engineering analysis of pertinent site and subsurface data. Hearing Exhibit A-261. The contract stated that GSA's purpose in including the geotechnical data and exploratory drilling information was so that the "Contractor may have the same information as is available to the Government and the Architect." Hearing Exhibit A-260. 24. With respect to the geotechnical data provided, the Government cautioned however, that: (B) the data is not guaranteed as to accuracy or completeness; and . . . (D) the submission of the bid constitutes an agreement by the Bidder that he shall make no claim against the Government or Architect because the subsurface data made available is not representative of the actual subsurface conditions. Hearing Exhibit A-261. 25. The Geotechnical Report presented the results of eleven test borings. The report set forth the eleven boring logs detailing the results of the test borings, including standard penetration testing and rock core boring, at the project site. One test boring (TB), TB-108, was a boring five feet into rock underlying the site. Hearing Exhibit A-261. 26. The report stated that for purposes of preparing estimates, the top of "sound" bedrock should be assumed as thirty-two feet below existing surface for the entire investigation site. Hearing Exhibit A-261. 27. Nine of the eleven boring logs contained in the Geotechnical Report noted "Auger refusal on Precambrian 'undifferentiated' hard bedrock." One boring log noted "Auger refusal on Precambrian 'undifferentiated' bedrock," and the remaining boring log stated that the rock was "hard fractured Precambrian 'undifferentiated' biotitel feldspar Gneiss bedrock of fair quality." Hearing Exhibit A-261. 28. The boring logs showed the depth of auger refusals and bedrock to be between 23 and 33 feet below the existing surface, with all but three borings reflecting depths of auger refusal between 28 and 33 feet. The only rock core boring, TB- 108, showed the depth of bedrock at 32 feet below the existing surface. Hearing Exhibit A-261. 29. Each of the boring logs stated that above the bedrock were layers of "dense to very dense gray-brown silty fine gravelly, coarse to fine sand/medium to fine sand (SM); occasionally interbedded with dense to very dense gray poorly- graded coarse to fine sandy gravel with little fine gravel and silt (GP-GM)." Three boring logs showed a hard soil classification, with the auger having penetrated the hard soil material. Eight boring logs described "very dense decomposed rock" just above the hard bedrock. None of the boring logs showed the presence of any weathered rock. Hearing Exhibit A- 261; Transcript at 2464-65, 2470. 30. The specifications required that after the contractor drilled the caissons to the indicated depth of bedrock surface and socketed six inches into the 60 tsf bearing rock, a professional engineer was to check and certify the caisson bottom. The contractor would then install rebar and pour concrete. Appeal File, GSBCA 12253, Exhibit 2, contract drawings 9-S-1, 9-S-2, 9-S-13; Transcript at 159, 170-71, 385. 31. SAE construed the contract drawings to show that a contractor reasonably could expect to encounter rock capable of providing 60 tsf in bearing capacity at the bedrock surface at approximately 72 to 73 feet elevation, ten feet below the excavation. Transcript at 69-70. Appellant's expert testified consistently with this interpretation. Transcript at 1295-96. 32. SAE relied on the information in the Geotechnical Report in preparing its estimate of the caisson work. Based on the report, SAE believed that drilling for caissons would be through a gravelly soil, to a firm, bedrock bottom about 32 feet below the existing ground surface at elevation 103 feet. SAE's estimator considered the information in the Geotechnical Report to be internally consistent. Transcript at 141-43; Hearing Exhibit A-261. 33. SAE conducted visual site inspections prior to submitting its bid, but was unable to derive any additional information as to subsurface conditions because the site was paved and in use as a parking lot for the existing courthouse. Transcript at 143. 34. SAE's caisson subcontractor was America's Drilling, Inc. (ADI). ADI was experienced in caisson work and had recently performed jobs in the Philadelphia/Trenton area, although it was based in Buffalo, New York. Transcript at 160, 398. In selecting ADI, SAE recognized some risk associated with using an out-of-town subcontractor, but concluded that the risk was outweighed by the projected cost savings since ADI's price was low. In addition to checking ADI's local references, SAE's initial project manager interviewed ADI personnel to evaluate their suitability for the project. Transcript at 160-61. SAE also noted that ADI was "gun shy" about the estimator's pricing on this project and that ADI had already said it could not meet the schedule.[foot #] 5 As to the latter point, SAE was confident it could "work around" the inconvenience. Transcript at 161-62; Hearing Exhibit R-12. 35. The on-site Dames & Moore inspector retained by OKA testified to his opinion that ADI's initial crew was ----------- FOOTNOTE BEGINS --------- [foot #] 5 This appeared to be a difference based on ADI's expectation that it would complete about four caissons per day and SAE's desire to achieve a productivity level of five to six caissons per day. Transcript at 162. ----------- FOOTNOTE ENDS ----------- inexperienced and apparently unfamiliar with the drill rig operations. The inspector also testified that he talked to the ADI supervisor, who told the inspector that ADI had fielded a highway paving crew for the excavation work. This inspector concluded that this contributed to delays and equipment failures. Transcript at 2408-14, 2418. 36. The solicitation required bidders to offer caisson unit prices and stated that: the contract sum is to include the lineal feet of caissons of each diameter as indicated on the contract drawings. Unit price for each diameter of caissons is to include excavation, pumping, caisson shells, concrete, reinforcing steel and modifications to bell size, complete and in place. . . . The unit price for caissons will be used solely to determine the adjustment of the contract sum for variances in the length of caissons actually installed. The total length of each diameter of caisson actually installed will be compared to the total length of each diameter shown on the contract drawings and this difference multiplied by the unit price will determine the amount of adjustment to the contract sum. Appeal File GSBCA 12253, Exhibit 2. ADI reviewed the contract documents and supplied unit prices for various caisson diameters to SAE, which included these prices in its bid. Appeal File, GSBCA 12253, Exhibit 2; Hearing Exhibits A-424, A-609; Transcript at 389-90, 397. 37. ADI's prices were based on its review of the Geotechnical Report supplied with the bidding documents. The contract did not call for, and ADI did not provide, separate prices for drilling into bedrock. Hearing Exhibit A-556; Transcript at 389-90, 402, 1364.[foot #] 6 38. Based on the information in the Geotechnical Report, ADI anticipated drilling through overburden to rock. ADI ----------- FOOTNOTE BEGINS --------- [foot #] 6 The specifications called for drilling a six-inch socket into rock, which signified to the knowledgeable caisson contractor that the requirement was to "toe or key in" the caisson. Had the specifications reflected the possibility that drilling some three or more feet into rock might be necessary, ADI, and probably other caisson contractors, would have requested additional geotechnical information to be able to estimate the added cost of the additional rock drilling. Transcript at 170, 272, 392-93, 442-43. ----------- FOOTNOTE ENDS ----------- understood the overburden to be soil-like and not rock, fractured rock, or weathered rock.[foot #] 7 The shop drawings submitted by ADI were consistent with this interpretation. Hearing Exhibit A-659. Based on this information, ADI determined that its drill rigs, which were considerably stronger than the auger used to perform the analysis contained in the Geotechnical Report, could readily penetrate the materials below the surface. Transcript at 165, 393-96. 39. Based on the anticipated subsurface conditions, SAE expected that ADI would be able to achieve a production rate of five caissons per day, resulting in seventeen production days, with a total of about twenty-one days including mobilization and demobilization. Transcript at 276, 385; Hearing Exhibit A-676. 40. The contract required appellant to provide a professional soils engineer to certify the rock bearing capacity at the bottom of the caissons. Hearing Exhibit A-260; Transcript at 2603. On July 2, 1991, OKA notified SAE that a caisson testing laboratory had not been submitted for review and approval and that on-site caisson work would not be permitted to proceed until an approved caisson testing laboratory was in place. Appeal File, Vol. I-A, Exhibits 19, 21. ----------- FOOTNOTE BEGINS --------- [foot #] 7 With respect to subsurface conditions, the Geotechnical Report concluded as follows: The site geology is characterized by Pleistocene sands and gravels/Cretaceous silts and sands over "undifferentiated" gneiss bedrock similar to the Precambrian Wissahickon mica schist/gneiss bedrock. . . . . In summary, hard bedrock consisting of fractured gneiss are expected to be encountered below depths on the order of 24 feet, whereas natural ground water table is anticipated to be perched on bedrock surface at depths on the order of 20 feet below existing surface. The overburden is characterized by 2 to 5 feet of granular and cinder fill mantle over a dense stratum of Pleistocene/Cretaceous silty sand and gravel above the water table before encountering hard bedrock; a deeper fill overburden should be expected in the immediate vicinity of existing utility lines. Hearing Exhibit A-261. ----------- FOOTNOTE ENDS ----------- 41. On July 8, 1991, SAE proposed Underwood Engineering Testing Company as its caisson testing laboratory. Underwood was rejected, however, because it had not been inspected and approved by the Materials Reference Laboratory of the National Bureau of Standards, as required by the contract. Transcript at 2603; Appeal File, Vol. I-A, Exhibits 21, 25. 42. On July 11, 1991, appellant submitted information on Testwell-Craig Testing Laboratories. Respondent informed SAE by letter of July 16, 1991, that the information submitted for this company was incomplete. Appeal File, Vol. I-A, Exhibits 32, 39. Testwell-Craig was ultimately approved as the caisson testing laboratory on July 24, 1991. Transcript at 2606. 43. The contract also provided that: The Government may also engage and pay for the services of an independent agency to perform tests, retests, spot checks or inspections specified as the Contractor's responsibilities. . . . If there is a discrepancy between the results of tests or inspections between the Contractor's independent agency and the Government's independent agency, the Government agency's results will take precedence. Appeal File, GSBCA 12253, Exhibit 2. 44. Prior to commencing work on the caissons, personnel from ADI and SAE met with representatives of OKA, Vitetta, and others to discuss ADI's plans for completing this part of the work. At the meeting, it was understood that SAE's inspector would inspect approximately ten percent of the caisson bottoms, about the first four to nine caissons. It was also agreed that probe hole drill testing would be conducted on about ten percent of the caisson bottoms. Appeal File, Vol. I-A, Exhibit 22; Transcript at 170-71, 278, 281, 318. 45. After removing pavement over the site, SAE commenced the excavation and foundation work. The planned sequence of work called for excavating from an original grade of 103 feet above sea level down 10 feet to 93 feet above sea level. After installing sheeting and shoring, SAE then planned to drill and install caissons on a level working platform at ninety-three feet elevation. Then SAE planned to excavate an additional 10 feet of earth down to elevation 83 feet above sea level, install additional sheeting and begin the concrete work. Transcript at 164-65. In conjunction with the requirement for certification of the rock bearing capacity of the caisson bottom, a specific inspection hold point was set for the bottom of each caisson just prior to dropping the rebar cage into the hole preparatory to pouring concrete. Transcript at 2603; Appeal File, Vol. I-A, Exhibit 22. 46. SAE used a building plan that in essence depicted the "footprint" of the project. It showed column lines running east to west, labeled A through H; the column lines running north to south were labeled 1 through 24. Transcript at 162-63. SAE and ADI contemplated a specific sequence of work under which ADI would begin excavation in the northeast, or A-D, quadrant area depicted in the schematic building plan. This meant that ADI would commence drilling in the area closest to the existing courthouse building and work out from there. Hearing Exhibit A- 101. This plan was chosen so that ADI could complete drilling in the deepest part of the parking garage ramp to provide the follow-on concrete subcontractor access to work without jumping around the site. Transcript at 229, 273-75. 47. ADI mobilized to the site on July 9, 1991, following the completion of the first phase of excavation and sheeting and shoring of excavation walls. Transcript at 168-69. On July 10, ADI drilled a test caisson. Initially, drilling progressed as expected through the overburden materials above the bearing strata. When ADI reached elevation 74.4, the actual rock present was not capable of yielding a bearing capacity of 60 tsf. ADI drilled deeper, but still could not locate rock capable of providing the required bearing capacity. Transcript at 172-74, 282-83, 399-400; Appeal File, Vol. I-B, Exhibit 21. 48. The next day, ADI drilled a second test caisson at another location. Again, it could not locate rock capable of bearing 60 tsf. Also that day, ADI drilled a test probe hole at the first test caisson location. Transcript at 172-73, 282-83; Appeal File, Vol. I-B, Exhibit 21. 49. SAE informed GSA that the load bearing capacity of the rock could not be certified at 60 tsf. ADI's test drilling gave rise to two requests for information (RFIs). The first, RFI 11, submitted to GSA on July 10, 1991, offered the conclusion of SAE's engineer that the bearing capacity could not be certified at 60 tsf and requested additional information. Appeal File, Vol. I-A, Exhibit 27; Transcript at 176. GSA responded that "no additional information is available." Appeal File, Vol. I-A, Exhibit 27. The second RFI, RFI 20, dated July 12, 1991, again advised that the subsurface at the caisson bottom would not be capable of providing 60 tsf bearing capacity. Appeal File, Vol. I-A, Exhibit 32. In a letter dated July 12, 1991, SAE formally notified the contracting officer that it had encountered differing site conditions. Transcript at 175-76; Appeal File, Vol. I-A, Exhibit 33. 50. After the second RFI was issued, GSA and SAE representatives met to discuss the situation. No immediate solution was arrived at, however, so SAE's project manager, with the knowledge of OKA, directed ADI to demobilize its crew to minimize costs. Transcript at 174, 283-84; Appeal File, Vol. I-A, Exhibit 34. 51. In response to SAE's notice of differing site conditions, GSA, through Vitetta, retained the services of a soils engineer, Mellick-Tully, to (1) explore the subsurface bedrock conditions within the proposed building area; (2) estimate the geotechnical engineering properties of the bedrock; (3) evaluate the suitability of caisson foundations for support of the structure considering the anticipated structural loads and encountered bedrock conditions; and (4) recommend alternate caisson foundation design and installation criteria. Hearing Exhibit A-263.[foot #] 8 52. Mellick-Tully performed eleven exploratory borings of rock core extractions and evaluated the cores. Hearing Exhibit A-263. While Mellick-Tully was conducting this work, SAE could not perform at the site. Transcript at 177, 1300-01. 53. Following Mellick-Tully's exploration, GSA, OKA, and Dames & Moore met to discuss the results of that study, which had confirmed that 60 tsf rock was not present at the design elevations. Transcript at 2492; Appeal File, Vol. I-A, Exhibit 42. GSA, based on advice from Dames & Moore and OKA, decided that redesigning the caisson foundation to "socketed" caissons was the best alternative. Appeal File, Vol. I-A, Exhibits 41-42. 54. After GSA met with its consultants, SAE representatives joined the meeting and received a preliminary report of Mellick- Tully's findings. No direction on how to proceed was provided at that meeting, however. Transcript at 178-79; Appeal File, Vol. I-A, Exhibit 42. 55. On July 23, 1991, SAE received a request for proposal (RFP) seeking submission of various unit prices for rock drilling by depth intervals for the caissons. Appeal File, Vol. I-A, Exhibit 62. SAE forwarded the RFP to ADI. Hearing Exhibit A- 660. ADI submitted unit prices as requested. Appeal File, Vol. I-A, Exhibit 44. ----------- FOOTNOTE BEGINS --------- [foot #] 8 Mellick-Tully was retained for this purpose because of the untimely death of the EES scientist who had performed the investigation underlying the Geotechnical Report. Appeal File, Vol. I-B, Exhibit 10. ----------- FOOTNOTE ENDS ----------- 56. A second RFP, dated July 22, 1991, was issued with contract modification AC05. This modification reduced the requirement for bearing capacity of bedrock from 60 to 25 tsf for all 85 caissons. With respect to thirteen caissons, the modification added a requirement for side friction, to be achieved by additional rock socketing. GSA directed the installation of the 72 remaining caissons at no additional cost. Appeal File, Vol. I-A, Exhibit 52. 57. On July 24, 1991, GSA issued a third RFP setting forth new requirements of two to two and one-half feet rock socketing (drilling) for the thirteen specified caissons and requested submission of a proposal for the additional work. Appeal File, Vol. I-A, Exhibit 54. 58. A revision of the first RFP (see Finding 55) was received by SAE on July 27, 1991. This revision stated that "unit price per lineal foot for drilling additional caissons in rock is to include the actual cost of drilling (including normal overhead and profit) plus the cost of additional concrete only." The contractor was directed not to include additional costs for "demobilization/mobilization," for project delay caused by demobilization, or for project delay due to time required for rock drilling in the unit prices -- delay costs were to be addressed separately. Appeal File, Vol. I-A, Exhibit 62. 59. SAE's project manager testified that because of the subsurface conditions encountered, no progress with the caisson work was possible from July 10 through July 24. Transcript at 184. OKA recognized in its report for July 1991 that it "was identified that an inappropriately high rock bearing capacity had been specified for the caisson installation." In order to minimize costs, SAE suspended caisson operations while the rock bearing capacity was reevaluated and needed design changes developed. Hearing Exhibit A-561. 60. On July 24, 1991, GSA directed work on the caissons to resume. SAE promptly notified ADI. ADI remobilized at the site on July 29. Transcript at 186-87, 286. 61. As a result of the redesign of the caissons, the controversy concerning the load bearing capacity of the rock encountered in the initial drilling, and the revised specification, which was changed to require that the contractor drill caisson shafts down to sound rock acceptable to the soils engineer as capable of supporting 25 tsf, the Government informed SAE that every caisson was required to be inspected, verified, and accepted by the soils engineer. This inspection had to be performed for each caisson before concrete could be poured. Appeal File, Vol. I-A, Exhibit 71. 62. Although Vitetta had stated that the side friction requirement applied only to the thirteen deeper-socketed caissons, OKA's soils engineer, Dames & Moore, in effect required that all the caissons meet this criteria. Transcript at 2486- 91, 2501; Appeal File, Vol. I-A, Exhibit 45. 63. Once ADI recommenced drilling, it encountered jagged rock at the bottom of the caissons that damaged its equipment, causing the 80,000 pound caisson drilling machine to bounce up and down. The drill teeth caught on the hard, jagged rock, causing damage to the equipment. As a result, ADI experienced unanticipated equipment failures, including two instances of a broken Kelly bar.[foot #] 9 ADI's project manager described this experience: [We] started to hit a bottom we didn't anticipate, that was just tearing the daylights out of the equipment and causing an 80,000-pound machine to bounce up and down and breaking the kelly bar -- in fact, I think we broke the kelly bar twice, which I have never seen happen, with this, what I call jagged rock on the bottom of these caissons. We would anticipate -- in all other jobs, when you get down to rock . . . unless it's sloped for some reason, it is usually like maybe a glacier went through and left dirt and then rock. Sometimes there is a decomposed layer which isn't that difficult, and then you get down to hard rock and it's relatively smooth down there, it's like drilling on this, to where you wear yourself in a groove with the teeth, and then you just bear down on the auger, and the more down pressure you put on the auger, the harder you dig, but it's smooth going around, and there's . . . the bottom of the drill bit, the tip of a drill bit, there are edges. These have teeth on them sticking out, and when these teeth on these flights would come around and catch this very hard rock that was sticking up, something had to give and the machine was bouncing. In fact, as I said, we had never broken a kelly bar before this job. Transcript at 288-89. SAE's project manager confirmed that as a result of the unexpected nature of the rock encountered (see ----------- FOOTNOTE BEGINS --------- [foot #] 9 A Kelly bar is a hollow metal tube. The drill bit operates within the Kelly bar which supports the walls of the drilled holes while the earth is being excavated. See Sosa Y ___ ______ Barbero Constructores, S.A., ENG BCA PCC-57, 92-1 BCA 24,627 at ___________________________ 122,851. ----------- FOOTNOTE ENDS ----------- Finding 73), ADI's production rate "just went out the window." Transcript at 187-88. Dames & Moore similarly acknowledged that the subsurface rock conditions caused ADI's equipment to bounce. Hearing Exhibit R-2. 64. The effect of the rock conditions encountered was acknowledged by OKA in one of its monthly reports: The subsurface rock strata has proved to be steeply tilted and folded so that considerable unanticipated time, effort and drill teeth are expended in reaching suitable caisson bottom conditions. In some caissons 75% of the bottom will be hard rock, and the remaining 25%, along one side, will be unsuitable. The only solution is to continue drilling through the rock until acceptable bottom conditions are achieved. Instead of three or four caissons per day, the production rate has been one or two per day and sometimes less. Hearing Exhibit A-561; Hearing Exhibits A-562, A-563. 65. When ADI began drilling again, numerous inspectors were at the site, including representatives from GSA, OKA, Dames & Moore, Mellick-Tully, and SAE's soils engineer, Testwell-Craig. There were so many inspectors that ADI instructed them to stay away from the caisson holes while ADI performed its work, not only for safety but also because they were impeding the drilling process. Transcript at 289-90. 66. Although the contract placed the responsibility for certification of caisson bearing capacity on the contractor's approved soils engineer, Testwell-Craig considered that it was hampered in its efforts to perform its duties because its authority and function was limited by OKA's consultant, Dames & Moore. Dames & Moore would inspect caisson bottoms and, at times, reject ones that had been accepted by Testwell-Craig. Transcript at 289-302, 2514-15. One of OKA's representatives would also climb into the caissons to inspect the bottoms, although, in the opinion of SAE, he was not qualified to determine if the bearing capacity was acceptable or not. Transcript at 2511, 3336-37, 3366-67. 67. Differences of opinion between SAE's soils engineers and OKA's soils engineer were resolved by OKA in favor of OKA's engineer. Transcript at 293, 2512-14. When these disagreements occurred, ADI was directed by OKA to drill deeper, even when it had already proceeded to the next caisson and would be forced to return to the already-inspected caisson. This not only affected ADI's orderly completion of caisson drilling, but also disrupted the scheduling of foundation concrete. Transcript at 293. 68. With some frequency, the Dames & Moore inspectors were not on site when ADI would complete drilling a hole and when Testwell-Craig conducted its inspection. Thus, Testwell-Craig would approve caissons one day, and the next morning, the Dames & Moore inspector would reject the caisson and require ADI to drill additional rock. Hearing Exhibit A-673; Transcript at 303-04. 69. Concrete placement in the caissons was adversely affected by the disagreements over the load-bearing quality of rock in the caissons. Concrete had to be ordered four hours in advance, and when Dames & Moore would overrule SAE's inspector, SAE was frequently forced to cancel or waste concrete ordered for placement in a hole that had been approved by the SAE inspector. Hearing Exhibit A-673; Transcript at 304-05. 70. As a result of this inspection activity, ADI and SAE were unable to follow an orderly sequence of work or to plan ahead efficiently. ADI's productivity was reduced from a projected completion of four to six caissons per day to one or two. Transcript at 199-200, 295. 71. SAE and ADI sought to clarify the inspection process with GSA and OKA so as to avoid the delays encountered. In response to an inquiry as to the standard being applied by OKA and GSA inspectors to certify a particular caisson as 25 tsf rock, OKA and GSA informed SAE and ADI that the inspection and judgment as to the bearing capacity of the rock had to be rendered individually and that advance parameters would not be established. This was because of the "variety of bottom strata encountered." Hearing Exhibit A-129. 72. In response to an inquiry seeking clarification as to final authority of inspectors, GSA acknowledged that SAE's inspector was to certify the bottom of the caisson. Consistent with the contract (see Finding 43), GSA took the position that inspections by OKA and Dames & Moore were the final authority and could overrule the conclusions of the SAE inspector. Hearing Exhibit A-129; Transcript at 189-90, 193-95, 310-11. 73. In a meeting held on September 9, 1991, attended by ADI, SAE, GSA, OKA, Vitetta, Mellick-Tully, and Dames & Moore, sketches of the subsurface conditions thus far encountered revealed that the rock layers/seams were severely tilted (rather than horizontal) and contained alternating hard and soft layers. There was no disagreement among the representatives in attendance that these were the conditions encountered and that these conditions had not been anticipated. The Geotechnical Report had shown only a slightly tilted bedrock surface and the boring logs had not revealed any weathered rock. Hearing Exhibit A-129; Transcript at 189-91, 2464-65. 74. These conditions contributed to the absence of a standard or consistent manner in which the caissons could be drilled and inspected. ADI's efficiency was impaired by the multiple inspections of each caisson and frequent issuance of directions to redrill to lower depths. ADI's planned productivity was significantly reduced by the unanticipated condition of the subsurface bedrock. Transcript at 192-93, 200, 296-97; Hearing Exhibit A-561. 75. In an attempt to mitigate the delays described above, at the request of SAE, ADI mobilized a second drill rig in early September. This effort was unsuccessful, however, largely because although the kelly bar did not break on this machine, the jagged subsurface rock caused the flight of the auger to snap off, an unusual type of damage encountered only on rare occasions. Transcript at 312-13. 76. The variable and jagged rock conditions encountered at the site delayed ADI's completion of the caisson work in several respects. The unanticipated conditions gave rise to the need for numerous additional inspections. In addition, ADI's equipment was subjected to significant additional wear and tear, causing it to break down on at least one occasion. The extra drilling required, however, was the most significant contributor to the delay in completing this portion of the work. ADI had expected the overburden, consisting of soil and gravel, to be drilled in one-half to one hour for each caisson, with the drilling of a six- inch socket to require another half hour. Instead, for most caissons, ADI was required to drill into approximately two to three feet of rock, consuming considerable additional time and significantly delaying completion of ADI's work. Transcript at 312, 408-09; Hearing Exhibit A-553. 77. ADI's work was not completed until October 8, 1991, nearly two calendar months after its intended completion date. Transcript at 314-15, 410; Hearing Exhibit A-553. 78. SAE and ADI met with OKA and GSA on October 9, 10, and 11 to discuss SAE's request for additional compensation and a time extension of fifty days. Appeal File, Vol. I-C, Exhibits 17-18, 20; Transcript at 209, 410-11. On December 6, 1991, modification ACO9 was issued, unilaterally extending the contract completion date by fifteen days (to cover the period during which work was actually stopped) and increasing the contract price in the amount of $86,632.10 to cover, inter alia, 1) the cost of the suspension of work from July 12 through 26, 1991; 2) the costs of drilling and installing additional sockets for twelve caissons; 3) the cost of varying the lengths and sizes of certain designated caissons; 4) costs for clean-out and inspection for added socket lengths for fourteen caissons; 5) costs of removing additional material from added socket lengths; and 6) the added cost of the side friction tests for two specified caissons. Appeal File, Exhibit 12253, Exhibit 137. 79. Subsequently, SAE submitted another claim to the contracting officer seeking $627,515 in added costs of performing the caisson work and a forty-day extension of time to compensate for the alleged differing site conditions. Appeal File, Exhibits 138, 146. The contracting officer agreed that based upon the unit prices established in the contract, SAE was entitled to an additional $7,666 for caisson installation, but otherwise denied this claim. Appeal File, GSBCA 12253, Exhibit 155. Expert Testimony Concerning Subsurface Conditions 80. In support of its claim that the nature of the subsurface conditions encountered by ADI represented a differing site condition, SAE presented the testimony of George Tamaro, a registered professional engineer in numerous states including New Jersey. Mr. Tamaro is a geotechnical and structural engineer with extensive experience in foundation engineering and design, including caisson design. He has extensive experience in conducting geotechnical investigations, preparing Geotechnical Reports, and inspecting foundation construction work. Transcript at 1273-84; Hearing Exhibit A-538. 81. Mr. Tamaro reviewed the solicitation for the Trenton project, including contract drawings, specifications, and the Geotechnical Report provided to prospective bidders. He also reviewed construction records to arrive at an independent conclusion as to whether a differing site condition had been encountered on this project. Transcript at 1285-86; Exhibit A- 555. 82. Based on his review of these documents, Mr. Tamaro formed the opinion that a reasonable contractor would have concluded that caissons were primarily to be installed on soil with a nominal six-inch embedment (socket) into rock. Transcript at 1287-88. The contract documents, in Mr. Tamaro's opinion, informed contractors that they would drill through soil and encounter top of rock at "auger refusal." Transcript at 1289; Hearing Exhibits A-261, A-539. 83. In performing his expert analysis, Mr. Tamaro combined the information in the contract documents, including the Geotechnical Report, the results of the Mellick-Tully investigation, and the as-built caisson data in a single composite drawing, with a contour of the bedrock surface to determine where this information indicated top of bedrock. He concluded that the contract drawings showed top of rock elevation as depicted on the borings as the start of the socket and that a six-inch socket could be achieved from the top of rock elevation. Transcript at 1295-96; Hearing Exhibit A-554. The contract drawings showed estimated bottom of caisson elevations to be consistent with six inches from top of rock as indicated in the EES boring logs. Transcript at 1289; Hearing Exhibits A-261, A-539, A-554; Contract Drawings 9-S-1, 9-S-2. 84. Mr. Tamaro interpreted the Geotechnical Report to identify top of rock as rock capable as supporting a load of 60 tsf. He pointed out that the contract further described the rock as "sound bedrock," "hard bedrock, fractured gneiss," and "deep, hard bedrock." Transcript at 1289-90; Hearing Exhibits A-260, A- 261, A-539. In addition, contract specifications and drawings identified the rock as "sound rock capable of supporting 60 tons per square foot," and "60-ton bearing strata." These descriptions denoted that the rock was very sound, hard material suitable to carry very substantial loads. Transcript at 1290; Hearing Exhibits A-260, A-261, A-539. 85. All but one of the borings showed that "very dense . . . decomposed rock" was encountered prior to auger refusal and that "auger refusal" occurred on "precambrian undifferentiated hard bedrock." Transcript at 1317-18; Hearing Exhibit A-261. Nothing in the Geotechnical Report raised a "red flag" to alert a contractor to a potential problem. The contract simply directed contractors to drill six inches once top of rock is reached. Mr. Tamaro opined that based on this information a contractor could reasonably expect the subsurface conditions in the immediate vicinity of the borings to have similar characteristics. Transcript at 1317-18. 86. Under the New York City Building Code[foot #] 10 hard sound rock is capable of supporting 60 tsf; medium hard rock, 40 tsf; and intermediate rock, 20 tsf. Hearing Exhibit A-551; Transcript at 1291-93. Hard sound rock includes various grades of gneiss. The characteristics of hard sound rock are: [T]he rock rings when struck with a pick or a bar. It does not disintegrate after exposure to air or water. It breaks with sharp, fresh fracture. Cracks are un-weathered and less than one-eighth inch wide. . . . [The fractures] are no closer than three feet apart, and core recovery with a double tube, diamond core barrel is generally 85 percent or greater to each five-foot run. Transcript at 1292. The New York City Building Code distinguishes between 20 tsf intermediate rock, which has a dull sound when struck with a piece of steel, and 40 tsf medium hard rock, which has a ringing sound when hit with a piece of steel. ----------- FOOTNOTE BEGINS --------- [foot #] 10 Mr. Tamaro testified that the New York City Building Code is one of the most detailed and comprehensive codes that addresses caisson work. It has been developed from considerable experience with caissons in schistic and gneissic rock. Transcript at 1291; Hearing Exhibit A-551. Mr. Tamaro also explained that it is reasonable to refer to the New York City Building Code in this case because the rock described in this Code is essentially the same rock formation as the rock in New Jersey: gneissic rock with the same materials and same mineralogical features. Transcript at 1294. ----------- FOOTNOTE ENDS ----------- Twenty-five ton rock is closer in its characteristics to twenty ton rock than to forty ton rock. Transcript at 1293, 1326; Hearing Exhibit A-551. 87. Boring log TB-108, a rock core, showed a core recovery rate of 92 percent in the Geotechnical Report. This conformed with the requirement for 85 percent recovery and 60 tsf bearing capacity for hard sound rock classification under the New York City Building Code. Using the criteria of the New York City Building Code, therefore, the boring log reflected that the material was 60 tsf rock and was sufficiently solid to support substantial loads. Transcript at 1293-94. 88. In Mr. Tamaro's opinion, a projected rate of five caissons per day was not overly ambitious given that the project caissons were short, running through approximately fifteen to twenty feet of soil, and should have been easy to drill until rock was encountered. Transcript at 1376-77. 89. Based on his extensive experience with foundation engineering and construction work, Mr. Tamaro also testified to his opinion on the reasonable level of inspection that would have been anticipated by a contractor based on the information in the contract documents and the contract provisions concerning inspection and quality assurance.[foot #] 11 In Mr. Tamaro's experience, ordinarily a quality assurance inspector would check the first several caissons to confirm that the contractor's quality was being performed properly and would then relinquish direct control to the contractor's inspector. This usually involves inspections of about ten percent of the initial caisson bottoms. Transcript at 1331-32. 90. The industry standard for testing caissons is either to 1) perform boring at exactly the caisson location and evaluate the rock exposed by the boring or 2) drill the socket and then inspect the socket and bottom of caisson for the quality of the rock. Transcript at 1322. The SAE contract specified a probe hole drilling procedure. Transcript at 1329. To test the soundness of the rock at caisson bottom, the contractor was required to probe drill through sound rock to investigate the rock beneath the bearing surface. When the contractor then encountered a soft seam, the inspector would require redrilling the socket into sound rock beneath the seam. Transcript at 1330. Nothing in the contract forewarned the contractor of the actual conditions that would be encountered, i.e., the location of soft seams under hard, sound rock. Hearing Exhibits A-260, A-261. ----------- FOOTNOTE BEGINS --------- [foot #] 11 The contract placed the initial responsibility for quality control and certification of the suitability of the bearing surface on the contractor, with the proviso that GSA could perform quality assurance checks or conduct independent tests and inspections. Finding 43; Transcript at 1331-32. ----------- FOOTNOTE ENDS ----------- 91. In Mr. Tamaro's opinion, the variations in the caisson bottoms could be acceptable if the inspector could find that the capacity of one portion of the caisson is 40 tsf or 60 tsf rock and the other has seams that are of a lower capacity, but the overall base of the caisson on average provides the requisite bearing capacity. Transcript at 1330. 92. In preparing his report, Mr. Tamaro reviewed the inspection reports of Dames & Moore, GSA's quality assurance inspectors. Based on consistent statements in these reports, the Dames & Moore inspectors looked for, tested for, and required the characteristics of 40 to 60 tsf rock. Mr. Tamaro also determined that Dames & Moore relied on the New York City Building Code in evaluating caisson sockets. Transcript at 1325-26; Hearing Exhibits R-26, A-875. 93. Many of the caissons were not accepted by Dames & Moore until ADI attained ringing rock. Often, ADI was required to drill through substantial amounts of rock to reach ringing rock. Hearing Exhibits R-26, A-875. The requirement for ringing rock, however, is applicable only to 40 or 60 tsf rock, not to 25 tsf rock. Transcript at 1327-28. 94. In Mr. Tamaro's opinion, some of the caissons were "under-designed," prompting Dames & Moore to develop de facto criteria in the field for acceptance of caisson bottoms and sides, even though these requirements were not stated in the contract or in the modification concerning caissons. For some caissons, the contractor was required to drill to ringing rock and embedment of six inches also in ringing rock. For at least one caisson, this required ADI to drill four and one-half feet below top of rock, and achieve a six-inch embedment on one edge, requiring removal of three feet of rock from the other edge. Hearing Exhibits R-26, A-545, A-875; Appeal File, Vol. I-A, Exhibit 59; Transcript at 1333-38. 95. Mr. Tamaro also opined that the Dames & Moore inspectors attempted to provide the necessary bearing capacity for the under-designed caissons by obtaining additional socketing in the field. Transcript at 1328. He based this conclusion in part on field reports acknowledging that caisson diameters were undersized in the design absent the 7 tsf side friction in the six-inch pocket. The inspectors thus looked for 7 tsf around the caisson perimeter, as well as a bearing capacity of 25 tsf for these caissons, in order to ensure the caisson would be sufficient to bear the load of the building. Transcript at 1310- 11. 96. Contrary to the indications in the Geotechnical Report, the rock conditions at the site were highly variable The rock had seams of decomposed and deficient material within rock in both vertical and horizontal planes. Rock would slope throughout the caisson, so that ADI would hit rock at a high elevation and then encounter a sloping surface. Sloping, combined with the hard surface, required ADI to proceed very cautiously in drilling sockets because the tools tended to drive down the slope. Hearing Exhibits A-545, A-875, R-26; Transcript at 1340-42. 97. To summarize, Mr. Tamaro's expert testimony supported SAE's claims that the caisson work was delayed by unanticipated subsurface conditions. The presence of these conditions could not have been deduced from the contract information provided to bidders. Moreover, the effect of the variable rock conditions was exacerbated by the field efforts of OKA's inspectors to compensate for undersized and under-designed caissons by requiring additional rock drilling to achieve deeper socketing. Hearing Exhibits A-543, A-544, A-545; Transcript at 1323-24, 1337-40, 1343-44. Sheeting and Shoring 98. The contract required SAE to provide sheeting and shoring to "protect existing buildings, streets, walkways, utilities, and other improvements and excavation against loss of ground or caving embankments." Appeal File, GSBCA 12253, Exhibit 2, 02150, 1.02(A)(1). Appellant contracted with Key Foundations to perform sheeting and shoring for the project. Hearing Exhibit R-84. 99. Key was to install sheeting and shoring along the northeast corner of the building down to and around the subbasement level. This was expected to take approximately three to four weeks, and as of June 1991, Key was scheduled to complete this task by July 16. Transcript at 3663; Hearing Exhibit R-84. 100. By August 13, correspondence in the record shows that SAE was experiencing significant performance difficulties with Key. On that date, SAE informed Key that it was delaying progress on the project and urged it to mobilize promptly. A week later, SAE informed Key that its proposed corrective measures for repairing defective shoring and sheeting work were unacceptable, and instructed Key to provide another solution immediately and complete all shoring and sheeting by the end of August. This letter warned Key that it would be delaying the project's critical path. Hearing Exhibit R-84. 101. On August 29, 1991, SAE advised Key that a soldier beam had failed and was impacting the safety of the project. SAE reiterated its concerns with Key's delays to the project and stated that delay costs would be back-charged to Key's subcontract. Hearing Exhibit R-84. 102. On September 9, 1991, Redi Concrete Company informed SAE that the instability of the shoring along the 24 line was delaying the start of the concrete foundation walls along the 23 line and the D line. SAE expressed additional concern to Key in further correspondence. Hearing Exhibit R-84. On September 29, 1991, during the excavation of the subbasement, a section of the sheeting and shoring along the north wall sustained a blowout. Transcript at 3333; Hearing Exhibit R-63. 103. The sheeting and shoring work was eventually completed by another contractor, U.S. Earthworks. On October 14, SAE issued a subcontract change order taking deductions from Key's subcontract for 1) repairs required to subpar work; 2) deductive changes to the work for work not performed by Key; 3) clean up; and 4) twenty days of delay. Hearing Exhibit R-84. 104. Although the last perimeter caisson, A-16, was completed on September 9, 1991, sheeting and shoring along the A and 24 lines was not completed until October 1, 1991. Hearing Exhibits A-553, R-12. In OKA's view, the delay in completion of sheeting and shoring was the critical controlling delay to the start of critical concrete. OKA concluded that Key delayed the start of critical concrete by sixty-five days. Hearing Exhibits R-12, R-84; Transcript at 3662, 3671. Foundation Work 105. The foundation work was subcontracted to Redi Concrete Company. Redi was responsible for cast-in-place concrete work, including construction of concrete foundations, walls, slabs-on- grade, slabs-on-deck, slabs-on-metal deck, and various site improvements. Transcript at 2011-13; Hearing Exhibit A-641. 106. By agreement with SAE, Redi was prepared to commence the foundation work on July 10, 1991, despite the fact that a written subcontract was not formally executed until August 1, 1991. Transcript at 2013-14, 2030, 2066-67; Hearing Exhibit A- 641. Initially, Redi prepared shop drawings and obtained bonding. In addition, Redi fabricated and delivered caisson reinforcing steel cages prior to execution of the subcontract in order to support SAE's planned schedule. Transcript at 2013-14; Appeal File, Vol. I-A, Exhibits 20, 24. Redi's caisson rebar cages were constructed and available at the site, but could not be used in July because of the delays to caisson drilling. Transcript at 203; Appeal File, Vol. I-A, Exhibit 36. 107. Redi is an experienced concrete construction firm which has been in business since approximately 1956. During that time Redi has performed concrete work on a variety of construction projects, many of them comparable in scope to the Trenton project. Transcript at 2010-15. 108. Based on its review of the bid documents, Redi expected that the concrete work would be straightforward, as most of the work was of a type in which it was highly experienced. Transcript at 2015-16. 109. Redi's bid was based on following SAE's planned approach of beginning work at the northeast quadrant of the building, then moving to the northwest quadrant, then the southwest quadrant, and finally the southeast quadrant. Transcript at 204, 2017-18; Appeal File, Vol. I-B, Exhibit 17; Hearing Exhibit A-831 at 4 and Attachment 3A. 110. Redi planned to perform the concrete work by following caisson installation in the northeast quadrant around column lines A-D, 24 to 16, with its wall crew, which would form, place, and strip the foundation walls. The slab crew would than place slabs on grade as the wall crew moved to the next quadrant, with the slab crew again following the wall crew. Redi was to move counter-clockwise and work westward from the deepest part of the excavation. Transcript at 2017-19, 2037-38; Hearing Exhibit A- 831, at 6-8. 111. Redi initially planned fourteen weeks for completion of the foundation work. This period included expected delays for a normal level of weather, design issues, and excavation problems. Based on this schedule, Redi expected to complete concrete work by the end of October 1991. Transcript at 2019-20; Hearing Exhibit A-831. 112. To form and place foundation walls efficiently, Redi needed the multiple caissons underlying each foundation wall completed in the scheduled duration and sequence. Transcript at 2022, 2027; Hearing Exhibit A-831. Although Redi commenced foundation work on August 21, 1991, it could not complete the foundation work underlying steel until March 2, 1992. Hearing Exhibits A-101, A-831, A-838. One of the significant reasons why Redi was not able to complete the foundation concrete work as originally scheduled was that the caisson work was not completed as scheduled or in the as-planned order. Transcript at 201-02, 2022; Appeal File, Vol. I-A, Exhibits 4, 36; Appeal File, Vol. I- B, Exhibit 17; Hearing Exhibits A-101, A-831. 113. Because Redi had anticipated that concrete work would be completed in October, it had not accounted for cold weather conditions as a factor in its planned schedule. Redi ultimately worked on the foundations and slabs during the winter months, which reduced its productivity. Transcript at 562, 2020-21; Hearing Exhibits A-831, A-838. Change in SAE Management Team 114. In late October 1991, SAE changed its project manager because SAE's upper level management considered that personality conflicts among GSA, Vitetta, OKA, and SAE's initial project manager could be hindering progress. At the same time, SAE doubled the size of the day-to-day project staff from four to eight, to address Vitetta's rejections of submittals and shop drawings and the associated resubmissions of these documents. This additional staff also handled exterior wall issues and change orders. Transcript at 68-70, 542-43. 115. The new project manager, assigned to manage the Trenton project on a day-to-day basis, had thirty years of experience in the construction industry and had significant experience in managing and scheduling large, complex building construction projects. Transcript at 530-35. After this project team had been in place for about two months, OKA recognized that "[s]ignificantly more harmonious relationships [were] being established" among the SAE, OKA, Vitetta, and GSA staff working on this project. Hearing Exhibits A-563, A-904. 116. In September 1991, the project was eight weeks behind the schedule initially prepared by SAE. Hearing Exhibit R-12, 4; Transcript at 115-16. In November 1991, SAE and OKA agreed that SAE's new project manager would develop a revised, as- planned schedule in an attempt to resolve OKA's objections to the prior schedule. With input from the major subcontractors, the new project manager developed a schedule with a completion date of February 18, 1993. Hearing Exhibits A-90, A-91; Transcript at 546-48, 1037. 117. Although the new project manager prepared and forwarded a schedule to OKA during the course of the contract, no schedules were ever officially approved by OKA or GSA. The schedules were reviewed and returned with extensive comments on numerous occasions, and OKA recognized that the schedules would be susceptible to being made acceptable with certain modifications, but OKA was never fully satisfied with the schedules proposed by SAE. Consequently, the project never had an approved CPM schedule as contemplated by the contract. Transcript at 552-53, 1029, 1034, 1037, 1039; Hearing Exhibit A-107. Structural Steel 118. The project's structural steel was the framework upon which the remainder of the building was to be erected. It included columns, beams, spandrel beams, and floor purlins. Transcript at 458-59. 119. In May 1991, SAE contracted with Interstate Iron Works to prepare shop drawings and fabricate and erect structural steel, a metal deck, and steel stairs for the project. Transcript at 458, 1835, 1844; Hearing Exhibit A-635. Interstate subcontracted with Entech to detail and prepare the structural steel shop drawings, and with Papp Ironworks to furnish the steel stairs. Transcript at 501, 1836. 120. Interstate planned to fabricate the steel and transport it directly to the project site in the same sequence as it would be erected. Transcript at 1844. For purposes of sequencing the work, Interstate initially divided the building into five areas. Appeal File, Vol. II, Exhibit 1. To erect steel, Interstate used a derricking system, under which steel was loaded onto a flatbed truck and sent to the site in a particular order to maintain the erection sequence. Transcript at 494-95. Interstate initially evaluated several possible erection sequences but, by October 1991, had determined that the site was best suited to a two-phase east-west erection sequence. Transcript at 495-97, 563-64. 121. The contract called for galvanized steel relieving angles to support the exterior skin of the building. Relieving angles are horizontal, L-shaped steel pieces of varying lengths, welded to gusset plates that are attached to the spandrel or floor beams at each floor. In essence, the relieving angles are shelves that support the exterior veneer. Transcript at 801, 807, 814. The requirement for galvanized steel relieving angles increased the lead time for fabrication because each relieving angle had to be fabricated and then shipped elsewhere for galvanizing. Transcript at 459-60. 122. Interstate intended to connect the relieving angles to the perimeter or horizontal spandrel beams at its fabricating shop. This would allow Interstate to ship and erect both pieces at one time and to minimize the number of pieces required to be lifted by a crane, increasing the efficiency of construction. Although the angle would normally be attached to the column after the spandrel is erected and the angle is adjusted, Interstate interpreted the contract's structural steel drawings, which depicted the relieving angle segments ending or breaking at the vertical structural steel columns, to permit this approach. This was because the drawings suggested that the relieving angle would be attached only to one spandrel beam and would not cross a column to be attached to a second spandrel. Transcript at 461, 1850-51. 123. Interstate's first shop drawing submittal was made in late June 1991. Interstate anticipated completing the submittal process by mid-September 1991, with steel fabrication beginning immediately in June. This would have allowed for five to six weeks of steel fabrication, with completion in late October 1991. Transcript at 462-63. Interstate intended to start erecting steel in mid-to-late October 1991, with completion occurring some eight weeks later, near the end of December. This would be followed by two weeks of effort in completing the bolting-up of the steel and installation of miscellaneous items. Appeal File, Vol. II, Exhibit 3; Transcript at 464, 1844. 124. After surveying the site, Interstate and SAE developed an east-west sequence for erection of steel to avoid moving the crane more than once. Transcript at 495-97, 563-64. 125. Given the size of the job, Interstate expected two shop drawing submissions, with approval of the second submission, permitting fabrication to commence. Transcript at 467. Submissions were made to SAE, which forwarded drawings to OKA. The drawing log reflects that SAE generally did not hold any of these drawings more than one or two days before transmitting them to OKA and Vitetta and then back to Interstate. Transcript at 518-19; Hearing Exhibit A-788D. 126. The initial relieving angle drawings, numbers one through seven, were submitted to SAE on Friday, July 5, 1991, and were transmitted by SAE to OKA for Vitetta's review on Tuesday, July 9, 1991. These drawings, in Interstate's view, were prepared consistent with the American Institute of Steel Construction's manual.[foot #] 12 In preparing these drawings, Interstate relied on the contract joint locations shown at the vertical columns in the structural steel contract drawings. The control joint locations "broke" the relieving angles at the columns. Transcript at 465-66, 472, 511, 878-80; Appeal File, Vol. II, Exhibits 7, 9. 127. Instead of showing the control joint for each face of the building, the contract drawings showed only a typical line on each face or elevation without any dimensions. These drawings did not permit Interstate to determine a precise location for control joints. Transcript at 520-21, 878-80; Hearing Exhibits A-360D, E, F. 128. The control joints in the exterior veneer are at the same location as breaks in the relieving angle steel to allow for deflection, displacement, and movement of the metal stud backup wall and the veneer. Transcript at 865-66, 879-81. 129. In response to Interstate's first submittal of relieving angle drawings, Vitetta provided additional dimensions necessary for the location of some control joints. Vitetta did not, however, change many of the control joints which Interstate had placed at the column lines. Transcript at 521-22. 130. Interstate was not able to complete its erection drawings or the piece detail without completed and approved relieving angle drawings. This was because the locations where the relieving angles "broke," or where one relieving angle ended and another began, were directly related to the locations on the spandrel beams of each floor of the attachment points, the gusset plates, of the relieving angles. Transcript at 470, 881-82. Thus, pending approval of the location of relieving angle breaks, Interstate was not able to determine where the connections for the relieving angles would occur on the perimeter beams. This delayed the detailing and fabrication of perimeter beams and gussets for attaching the relieving angels. Transcript at 507; Appeal File, Vol. II, Exhibit 9. 131. Interstate met with representatives of Vitetta in September 1991. At that time Interstate maintains that it was told that the relieving angles could not be broken at the columns and that all of the relieving angle and erection drawings for an entire floor must be submitted at one time. Transcript at 470- 71, 515-16, 1847-51. This floor-by-floor approach required by the architect was inconsistent with the approach intended by ----------- FOOTNOTE BEGINS --------- [foot #] 12 This manual was incorporated in the contract by reference. AppealFile, GSBCA 12253, Exhibit 3, 05120, 1.04. ----------- FOOTNOTE ENDS ----------- Interstate and SAE, which was to erect the steel for the building in two phases: first the east one-third of the building (Phase I) and then the west two-thirds of the building (Phase II). This direction conflicted with the planned sequence of work in that Interstate had to prepare, submit, and obtain Vitetta's approval for Phase II steel on each floor, even when it intended only to erect Phase I steel. Each time Vitetta had a problem with Phase II steel drawings, Phase I construction was delayed. The floor- by-floor approach to submittals required that Interstate complete submittals for all seven floors before it could embark upon fabrication and erection of Phase I steel. Transcript at 470-71, 1847-48. 132. GSA maintains that there was no requirement in the contract that Interstate submit structural steel shop drawings on a floor-by-floor basis. Interstate was free to submit the shop drawings in accordance with its planned erection sequence, which is what Vitetta expected the contractors to do. Transcript at 3939-40. Moreover, minutes of the administrative meeting held on September 18, 1991, specifically state that Vitetta agreed that SAE could exercise its own discretion with respect to the sequence (by derrick or by floor) of shop drawing submittals for structural steel. Hearing Exhibit R-30. 133. By letters dated August 6 and 14, 1991, Interstate informed SAE that the relieving angle drawings had not been returned. In the letter of August 14, Interstate pointed out that the delay could result in more expensive winter erection costs. Appeal File, Vol. II, Exhibits 7, 9; Transcript at 472- 74. SAE in turn, notified OKA and GSA of the alleged Vitetta delay in returning the relieving angle drawings. Transcript at 560; Hearing Exhibit A-138. 134. Interstate was unable to fabricate certain steel pieces and could not erect surrounding steel absent responses to its questions and approval of the relieving angle drawings. As a result, Interstate was not able to commence steel erection as planned. Transcript at 474, 881-82. 135. The initial relieving angle drawings were returned by Vitetta marked "revise and resubmit" on August 22, 1991. The drawings contained modifications by Vitetta, reflecting a change in the contract drawing configuration of relieving angle breaks at the center line of the column to breaks at the corners of the building in a north-south orientation. Transcript at 475-76, 879-80; Hearing Exhibits A-345, A-360. 136. Thereafter, SAE, Interstate, and Vitetta agreed to an exchange of design information by telephone so that Interstate could ask questions directly of Vitetta. Vitetta ended this approach in about two weeks, however. Transcript at 484-85. Interstate also offered to place Interstate personnel in Vitetta's office to work through dimension issues, but Vitetta declined this offer. Transcript at 485-87; Hearing Exhibit A- 134. 137. On August 27, 1991, Interstate, through SAE, resubmitted the first two relieving angle drawings showing Vitetta's changes to the location of relieving angle breaks. These were returned on September 17, marked "approved as noted." Relieving angle drawings three through seven were subsequently returned, however, marked "revise and resubmit" and with notations that the approval of drawings one and two was rescinded. This was based on another architectural decision determining that the relieving angles could not break at the columns. This determination was related to a modification of the orientation of the control joints announced in a memorandum dated October 7, 1991. Transcript at 478-79, 880-81; Hearing Exhibit A-778, A-887. 138. Accordingly, the third versions of the first two relieving angle drawings were submitted October 9, 1991. Transcript at 480-81; Appeal File, Vol. II, Exhibit 13. These were returned on October 18, 1991, marked "approved as noted" with a notation that the corner control joints of the relieving angles were to be changed from the north-south direction to an east-west direction. Transcript at 480-82. 139. The changes in orientation of the corner control joints affected numerous other steel drawings because the perimeter steel details, the erection plan, and the relieving angles plans, on which the joints appear, all had to be changed. Transcript at 509. Interstate ultimately submitted the relieving angle drawings for architectural approval four times, with several being submitted five times. A similar pattern was experienced with the erection plans. Transcript at 467. 140. Interstate began fabricating steel on October 29, 1991, shortly before it received complete submittal approvals. Appeal File, Vol. II, Exhibit 20. Approved relieving angle drawings were received on October 31. Until Interstate received the approved relieving angle drawings, it was unable to finish its erection drawings or the piece details because it needed to know where the relieving angles would break in order to properly locate the spandrel beams of each floor. Transcript at 482, 508- 09. 141. According to SAE and Interstate, actual fabrication time was extended approximately three months, in contrast to the five or six weeks that should have been required. The disrupted shop drawing submittal process caused Interstate to fabricate steel in an irregular sequence, in that Interstate would fabricate some steel for the courthouse project and then put it aside and move to other jobs while the submittal process dragged on. Then it would resume fabrication for the courthouse project. The process also resulted in fabrication of pieces of steel of different sizes at the same time, which is not the economical, efficient approach of fabricating each particular size at once, as Interstate had planned. The piecemeal fabrication process forced Interstate to store steel at its plant until it was needed at the project site. Transcript at 493-94, 497, 1848-50. 142. Beginning February 19, 1992, Interstate was able to erect steel using the east-west sequence. Transcript at 564. Once it had access to the site and the approval of its drawings, Interstate erected the steel for the building in approximately the same duration as originally planned. Transcript at 495. Exterior Skin 143. Vitetta's initial architectural drawings called for an exterior wall design based on a metal stud backup wall. OKA contracted with an engineering consultant, Seelye, Stevenson, Value & Knecht (SSVK), to perform a design review of the architect's working drawings. On September 19, 1990, SSVK issued a "Technical Design Review Report" which stated the following with respect to the exterior walls and masonry: The use of metal studs with gypsum board as a back-up for an exterior masonry finish is a very economical system, but has a potential for troublesome performance. The history of such construction shows that it is notorious for leaking. Imperfections in the masonry work are conducive to leaks that tend to severely shorten the life and reduce the effectiveness of wall fastening systems, and greatly increase the likelihood of such leaks penetrating through the back-up board, to the interior of the space. Also, if any weep holes become clogged, which is not uncommon, water could build up and penetrate into the building. The selection of materials and method of construction for the exterior walls, as shown on drawings No. 19 through A.21.c does not constitute in our opinion an acceptable quality level for the design of a public building requiring an extended trouble-free service life that suitably reflects the institution of a courthouse. Metal stud construction is in our view more suitable for commercial applications, or where special considerations (seismic) require a structure of least possible mass. We recommend reconsideration and reevaluation of this design, with the possibility of going to a typical masonry cavity wall construction with masonry backup. Hearing Exhibits A-29, A-180. 144. The Government's expert, Ivan Becica, an architect with a master's degree in civil engineering, with an emphasis on structural design, Transcript at 3184-85, explained the "debate" over metal stud construction as follows: It is essentially steel studs being used as a backup to support masonry products, and the concern is as designer, how do we look at the action, the structural action of these two elements where they are assembled together. The debate has to do with how rigid is the steel stud wall and what is the effect of the steel stud wall's rigidity on the behavior performance of the brick veneer. Brick veneers, concrete masonry veneers are all brittle materials as compared to steel studs, which are manufactured from a material that has an enormous amount of ductility and, therefore, can deflect great amounts of wind within their allowable stress range without yielding or without failure, as opposed to a brick, stone, or concrete masonry veneer, which is joined by mortar. These systems tend to be very weak in tension, strong in compression, and when they bend as a result of the action of lateral loads such as wind or earthquake, they tend to crack. And when they crack they tend to leak more than they would normally leak. Once water gets behind the wall in a large quantity, it tends to degrade materials on the interior of the building as well as degrade the attachments that are made between the steel studs and the brick. And are all causes for concern. Transcript at 3200-01. Mr. Becica noted that there is a split in the industry concerning whether and when steel studs should be used and further stated: There is nothing inherently wrong with steel stud wall construction. It is just a matter of how you assemble the wall and how you design the wall. Care has to be taken to include -- to deal with all these problems that we know can exist. [The issue is not whether it is negligent to select a steel stud wall.] The issue is once you do decide it is a steel stud wall, you must be careful . . . how you design it and you must . . . proceed in a very cautious manner and make your decisions based on [a] rational analysis of the situation that you have. Transcript at 3201-02. 145. After forwarding SSVK's report to GSA, OKA followed up with its own report, observing, with respect to the status of the wall sections as designed by Vitetta at that point, that the details were incomplete and not fairly representative of the architect's intent. The working drawings, in OKA's view, contained discrepancies and contradictions such that the design at that point was unsuitable for fully understanding the wall system and how it was intended to interact with the masonry. Hearing Exhibits A-29, A-30. 146. Other than directing Vitetta to use a more "conservative approach to this type of wall construction [by] . . . using an allowable deflection factor of H/1500 for stud backup to CMU [concrete masonry unit] walls and H/1000 for stud and limestone veneer wall areas," GSA did not require any modifications of the design put forth by Vitetta. Hearing Exhibit A-35. Vitetta performed calculations of the metal stud backup walls' anticipated deflection based on the proposed spacing of metal studs at 16 inches and reported that the wall system met GSA's deflection criteria. Hearing Exhibit A-415. 147. Other than changing the specification to state GSA's deflection criteria, Vitetta does not appear to have changed the working drawings as reviewed by SSVK to address the other issues raised with respect to this exterior wall design. Transcript at 839-40, 4216-17. SAE's expert, a structural engineer, testified that based on his review of the documents, Vitetta did not address either the inherent problems with the metal stud backup wall system or the criticisms raised by OKA and SSVK at the design stage. Transcript at 837-42. 148. At the time it approved the metal stud backup wall, GSA was aware of the concerns voiced by OKA and SSVK and understood that the exterior wall design was not the traditional method of supporting a monumental building's exterior. Concannon Deposition, Vol. II at 187-88, 192-94. GSA nonetheless approved the design, based on Vitetta's word that the exterior wall system and metal stud backup was acceptable. GSA expected to realize approximately $1,000,000 in cost savings as a result of the metal stud backup system. Concannon Deposition, Vol. I at 126, Vol. IV at 387. 149. In a memorandum dated March 21, 1991, OKA informed GSA and Vitetta that bidders were interpreting the metal stud backup wall specification and drawings to require fewer metal studs than were actually intended to be installed by the architect and GSA. OKA expressed the view that this would lead to underpricing the true cost of satisfying GSA's true intent and interpretation of these specifications. No clarifications of the specification and drawings were issued to respond to this concern, however. Appeal File, GSBCA 12294, Exhibit 6. 150. Section 05400 of the specification provided in pertinent part: 1.02 DESCRIPTION OF WORK A. The extent of the exterior wall metal stud work is shown on the Drawings as specified. B. The work includes the design and engineering of the exterior wall metal stud system to meet the design criteria and design arrangement shown on the Drawings as specified. . . . . 1.08 DESIGN CRITERIA 2. Stud size: a. 8 inch deep section, spaced not more than 16 inches on center; Stud gauge: 12 b. 6 inch deep section, spaced no more than 12 inches on center; Stud gauge: 14 c. as indicated on drawings. 3. Deflection criteria: a. H/1500: backup for CMU veneer. b. H/1200: backup for limestone veneer. Appeal File, GSBCA 12253, Exhibit 3. Limestone Design Issues 151. SAE's exterior limestone and granite and interior marble subcontractor was Dan Lepore & Sons, Inc. Transcript at 575, 1164-65. In estimating its bid for the project, Lepore quantified and priced the number of stone pieces and elements, approximated and priced installation productivity based on the building's physical configuration, and tendered a bid to all bidding general contractors. Transcript at 1170-72. 152. The specification for "Anchors and Attachments" provided the following: A. Provide anchors and attachments of types and sizes required to support stonework and as follows: 1. Stainless Steel, AISI [American Iron and Steel Institute] type 302/304 non- magnetic for all anchors in direct contact with stone. 2. Cast or malleable iron for adjustable inserts embedded in concrete and not in direct contact with stone. 3. Hot-Dip Galvanized Steel: a. For anchor bolts, nuts and washers not in direct contact with stone; comply with ASTM A307, Grade A, for material and ASTM C153, Class C , for galvanizing. b. For steel plates, shapes and bars not in direct contact with stone; comply with ASTM A36 for materials and ASTM A123 for galvanizing. Appeal File, GSBCA 12253, Exhibit 3, 04400, Stonework, 2.07. 153. Lepore began performing its scope of work under the anticipated subcontract in June 1991, although its subcontract with SAE had not at that time been executed. Transcript at 1173- 74; Hearing Exhibit A-636. Lepore entered into a contract with Harding & Cogswell to prepare shop drawings and to supply and fabricate limestone needed for the project. Transcript at 579- 80, 1175. 154. Under specification section 04400 of the contract, SAE was required to provide Indiana limestone to match in grade and color "Regal Buff" by Rock of Ages, a granite supplier with quarries in New England. There is no Indiana limestone known as regal buff. Since, in any event, Rock of Ages is not a supplier of limestone, and Lepore could not identify a supplier of limestone known as regal buff, Lepore submitted Indiana standard buff limestone samples to Vitetta for its review in August 1991. Transcript at 1174-75; Hearing Exhibit A-336. 155. When Vitetta reviewed the samples in January 1992, it rejected them. Transcript at 620-21; Hearing Exhibit A-336. Vitetta then changed the specification from buff to grey limestone. Harding & Cogswell, through Lepore and SAE, submitted a range of grey limestone samples. Vitetta, however, attempted to direct that all limestone for the building match the color, texture, and markings of only one piece of the submitted grey samples, which is not possible given inherent variation in the natural stone specified. Transcript at 1175-76; Hearing Exhibits A-336, A-870. 156. At the time it revised the specification to call for grey limestone, Vitetta also required additional submittals of different color ground-face block. This extended the submittal process because SAE submitted some forty to fifty block samples, which Vitetta rejected. Vitetta wanted filled block and insisted that a particular company, Anchor, in fact made a matching filled block. SAE determined that Anchor did not manufacture such a block. In May 1992, GSA ended the stalemate and directed Vitetta to accept the grey block originally submitted by Lepore. Transcript at 620-64; Mitchelson Deposition at 101-03; Appeal File, Vol. IV, Exhibits 35, 55; Hearing Exhibits A-269, A-726. 157. In a letter dated March 17, 1992, Vitetta approved the buff limestone samples submitted in August 1991, excluding only one stone of the sample range. Appeal File, Vol. IV, Exhibits 32, 37; Transcript at 1177-78. 158. In order to make progress, Harding & Cogswell commenced work before Vitetta approved the shop drawings. The preliminary work involved slabbing the stone, or cutting it into large blocks approximating the sizes needed for the building. Transcript at 1254. 159. The first full set of limestone shop drawings, which included a limestone attachment system, was submitted to Vitetta on September 15, 1991. The drawings were returned on November 15, 1991, with the following notation: "Anchors detailed are not per spec. See VG [Vitetta Group] drawings for anchorage." This was understood by SAE and its subcontractor to be a direction to adhere to the design set forth on the contract drawings, which depicted a dowel connection at the relieving angles and between stones in non-relieving angle locations. Transcript at 581-83, 1181-82; Hearing Exhibits A-325, A-336. 160. The wall tie "anchor" referred to in the drawings is a device for attaching limestone to the metal stud at all locations other than the relieving angle. The wall tie anchor connects to a receiver attached to the metal stud. Transcript at 802, 807. 161. Lepore was concerned about the limestone attachment design in the contract drawings because the dowel in a fully mortared system, as specified in the contract documents, could cause cracking in the stones as deflection and movement of the stone could twist the dowel and cause the stone to fail. Lepore and its subcontractor were dubious about the use of an interlocking, rigid system such as that used in the design in the contract documents. Lepore also was concerned that the design allowed no tolerance and would be difficult to construct because the design required the dowel to line up exactly with holes in the stones. Transcript at 582, 586-88, 1179-81, 1184-85; Hearing Exhibit A-856. 162. In the initial limestone submittals, Lepore tried to address its concerns about tolerance and lateral adjustment by showing the anchorage as a split tail strap using an eight to ten-inch slot cut in the stone, rather than a single hole. These concerns were stated in a letter sent to SAE on January 8, 1992. SAE forwarded this letter to Vitetta and OKA. Transcript at 1178-81; Hearing Exhibits A-359, A-856. Vitetta responded by stating that Lepore's observations were "valid concerns with cavity/veneer design, but nothing to indicate a problem on this Project." Appeal File, Vol. V-A, Exhibit 6. 163. The design details in the contract architectural drawings did not show complete details of the limestone anchorage system. Drawing 5/A39 showed a masonry tie (DW-10) connection detail with a note requiring the use of "Tie Anchor Sim. to Tie #1Typ." SAE requested clarification of this note several times, specifically inquiring what Vitetta regarded as "similar" because of the existence of several potentially similar configurations. Lepore did not believe that the receiver for the DW-10 wire would be compatible with the dowel and strap, and both SAE and Lepore understood the DW-10 tie to be a brick wall tie, not suitable for anchoring limestone panels. Transcript at 580, 583, 1183, 1189. 164. A meeting was convened on December 9, 1991, attended by representatives of SAE, Lepore, Vitetta, and OKA, to discuss technical issues with respect to the connections between the limestone panels and the building and from one limestone panel to another. The next day, Lepore communicated the information obtained to Harding & Cogswell. Transcript at 577; Appeal File, Vol. IV, Exhibits 13-14. 165. After the meeting on December 9, 1991, a new submittal was prepared in a second set of limestone drawings, forwarded on February 3, 1992. These drawings attempted to show the exact anchorage system in accordance with the contract drawings, but sought design information as to the length of the dowel and other details. Hearing Exhibit A-336; Transcript at 577, 1185-87. 166. This second set of drawings was returned on March 26, 1992, with an annotation stating that SAE was responsible for designing the connections and should coordinate the details based on the Indiana Limestone Institute (ILI) Handbook. This direction conflicted with the interpretation of SAE and its subcontractors, who construed the contract specifications and drawings to be prescriptive with respect to limestone connection. Transcript at 578-79, 1185-89; Appeal File, GSBCA 12253, Exhibit 3, 04400; Hearing Exhibit A-336. 167. A meeting was convened on March 3, 1992, to discuss the limestone exterior veneer system and its connection to the building. In an effort to move the project, SAE and Lepore presented details for anchoring the stone for Vitetta's review. Transcript at 590-92, 1191-94; Appeal File, Vol. V-A, Exhibit 9. The question of who was responsible for designing the anchoring system was not resolved at the meeting, although in a transmittal of March 4, SAE attempted to obtain Vitetta's approval of SAE's connection details. Transcript at 592-93, 1191-92. 168. SAE also sought the intervention of the contracting officer with respect to the proper interpretation of the limestone attachment specifications so as to permit progress with this issue. SAE did not obtain direction from GSA on this matter, however. Transcript at 594-95. In a letter dated March 27, 1992, SAE wrote to OKA asking that Vitetta identify the stud receiver considered to be similar to Tie #1. Appeal File, Vol. V-A, Exhibit 15; Transcript at 596. 169. On April 4, 1992, SAE submitted RFI 213, which set forth each of its specific questions concerning limestone connection details. SAE sought design details identifying the length of the typical dowel pin, the depth of the hole in the limestone to accommodate the pins, and slotting details in the stone at the dowel locations. Appeal File, Vol. V-A, Exhibits 19, 21; Hearing Exhibit A-150. Vitetta replied on April 22, 1992, again stating that the connection details were the responsibility of the contractor. Hearing Exhibit A-150; Transcript at 597-98. 170. On April 6, 1992, Vitetta, OKA, SAE, and Lepore met to discuss the connection details. As a result of this meeting, Lepore understood that GSA would approve straps, cramps, split- tails, and slotting the stone to address the tolerance and constructability issues raised by the architect's anchorage system. Appeal File, Vol. V-A, Exhibit 21; Transcript at 1195- 97. At this meeting, many, although not all, design details were determined. For example, it was agreed that for a 3/8" dowel, a 3/4" hole would be drilled; for a 1/8" split-tail or cramp, a " slot would be cut; slots would be used at locations in front of metal studs, but a dowel hole would be cut at the relieving angle. In addition, it was determined that Lepore would provide a plate with a 1" dowel pin of 3/8" diameter atop it to be welded to the relieving angle; the stone would be drilled for 3/4" diameter holes to a depth of 1-1/4". The depth of the " slot in the stone was to be determined by Vitetta. Vitetta also confirmed that the DW-10 brick tie depicted on contract drawing A36.2 was to be used to anchor the limestone panels. Appeal File, Vol. V-A, Exhibits 21, 23; Transcript at 1197. 171. After the April 6 meeting, however, SAE still could neither complete the shop drawings for approval nor release the limestone for complete fabrication due to remaining unresolved issues, which included the slot dimensions in the stone and the method of bolting the receiver to the stud. SAE apprised OKA and GSA of this problem. Appeal File, Vol. V-A, Exhibits 23-24; Transcript at 602-03. 172. On April 30, 1992, representatives for SAE, Vitetta, and Lepore traveled to Harding & Cogswell's Indiana facilities to try to resolve the limestone connection details. In the course of this meeting, however, representatives from Vitetta reiterated their view that SAE was responsible for designing the limestone connections, which left the situation essentially unchanged since it had first arisen in September 1991. Appeal File, Vol. V-A, Exhibits 27, 29; Transcript at 606-08, 1199-1201; Hearing Exhibit A-330. 173. During this period, SAE's schedule updates, which were provided to OKA, showed later and later completion dates, as delays to limestone were on the critical path. OKA agreed that limestone issues were on the critical path and that delays in this area were affecting the project completion. Hearing Exhibits A-331, A-908, A-909, A-910; Transcript at 608-09. 174. GSA directed OKA, Vitetta, SAE, and Lepore to meet on May 6, 1992, at which time a GSA representative reviewed RFI 213 and directed Vitetta to provide design information missing from the contract drawings' limestone connection details. Vitetta provided this information approximately two weeks later. Appeal File, Vol. V-A, Exhibit 32; Transcript at 580, 612-14. Using Vitetta's response to GSA's direction, and the information provided with respect to earlier questions, SAE's project manager sketched the connection detail configurations and submitted these sketches on June 15, 1992. Appeal File, Vol. V-B, Exhibits 5-6; Transcript at 618-19. Thereafter, Vitetta still only agreed to approve the shop drawings when the SAE project manager also initialed them. This was not fully resolved until July 28, 1992. Transcript at 575-77; Hearing Exhibit A-336. On August 20, 1992, SAE directed Lepore to fabricate the limestone. Appeal File, Vol. V-B, Exhibit 43. Metal Stud Backup Wall Issues 175. One element of the overall exterior wall system is the metal stud backup wall. Transcript at 808, 3132. Section 05400 of the contract specifications stated that: "The extent of exterior wall metal stud work is shown on the Drawings as specified" and "the work includes the design and engineering of the exterior wall metal stud system to meet the design criteria and design arrangement shown on the drawings as specified." Hearing Exhibit A-123. 176. The contract drawings showed the size, spacing, and deflection ratio for the metal studs. SAE and its subcontractors could not determine from these drawings that spacing of less than that depicted on the drawings would be necessary to achieve specified deflection ratios of H/1200 and H/1500. SAE concluded that the spacing set forth in the drawings and the selection of metal stud size meant that the architect had designed the backup wall to meet the specified deflection ratios and that the contract did not require the contractor to design the metal stud component of the exterior wall. Transcript at 139-40; Contract Drawings A31, Detail 1; A32, Detail 2; A34, Detail 1; and A37, Detail 2. 177. SAE could not prepare the metal stud backup wall shop drawings until the limestone anchorage design issues were resolved. Transcript at 600-01. Vitetta interpreted the specifications and drawings to require SAE to show the metal studs on the limestone shop drawings and the anchors on the metal stud shop drawings to verify that each anchor connected to a stud. Hearing Exhibit A-862. Contract Drawing A39, Detail 5, showing a wall section-limestone veneer, allowed the use of a metal strap between studs wherever anchors did not align with a stud. 178. SAE's subcontractor had to locate the precise stud locations on the drawings to comply with GSA's interpretation of the deflection criteria. Approximation of the stud locations was precluded, and there was no flexibility to move a stud to meet a limestone anchor because the studs were to be installed before the limestone and because movements of this nature could have caused portions of the walls to fail to meet the architect's criteria for stiffness. Transcript at 721-22. 179. Vitetta returned the metal stud shop drawings on July 31, 1992, marked "approved as noted." Hearing Exhibit A-336. Continuing Issues With Respect to Exterior Wall Design 180. In June 1992, GSA directed OKA to review the exterior wall submittals as to the adequacy of the exterior wall design. OKA suggested that an independent engineering expert provide an opinion on whether any details or attachments would be likely to fail or cause durability problems in the long or short run. Hearing Exhibit A-15. 181. A meeting with representatives of GSA, OKA, and Vitetta was held on July 15, 1992, at which GSA expressed concerns regarding the exterior wall system. SAE was not present at this meeting. Hearing Exhibit A-300; Transcript at 3420, 3422-23. 182. In a letter dated July 22, 1992, GSA's Regional Director of Design and Construction, Alfred S. DeLucia, confirmed the agency's concerns about the exterior wall design, advising OKA and Vitetta as follows: I have doubts that a metal stud backing wall, covered with gypsum board, will function as a single structural system in a manner as forgiving as a conventional CMU [concrete masonry unit] backing wall, and will leave less room for error during construction. . . . The complexity of the system and the flashing required leaves much potential for leaks. . . . [I]t must be clearly understood that I hold you accountable and expect you to work together to ensure this system does not fail in the immediate or distant future. Hearing Exhibit A-300. 183. On August 17, 1992, OKA forwarded a formal proposal to GSA to obtain an independent architect/engineering consultant review of the exterior wall system. OKA recommended that the independent engineers review the relevant design documents and provide a written report with an overall evaluation of the wall system. In addition, OKA proposed that the consultant provide detailed evaluations of specific design conditions such as the anchoring methods, flashing details, and material installation coordination, with recommendations for enhancements and modifications to the design. Finally, OKA proposed that the consultant evaluate the system for long-term durability as presently designed and with various proposed enhancements. Hearing Exhibit A-155. 184. GSA, through OKA, retained the engineering firm of Wiss Janney Elstner (WJE) "to evaluate the long term performance of the limestone masonry veneer/metal stud exterior wall system." Hearing Exhibits A-156, A-157. GSA's principal purpose in retaining WJE was to determine whether the exterior wall design was in fact sound, as represented by Vitetta. Transcript at 3425-27. 185. In September 1992, Mr. DeLucia wrote to OKA, Vitetta, and SAE, stating that GSA would hold all the parties jointly responsible for design and performance of the exterior facade. In the letter received by SAE, Mr. DeLucia characterized the exterior wall system as a "less forgiving system." Appeal File, Vol. III-A, Exhibit 30; Transcript at 637-39. SAE took the position in response to this letter that it had no obligations other than those stated in the contract drawings, but agreed that it would perform all responsibilities under the contract documents. Transcript at 639-40; Hearing Exhibit A-453. At that point, SAE was adding personnel to expedite the construction of the exterior facade. 186. A similar letter was dispatched to OKA, in which GSA took the position that OKA was potentially responsible for "failures to the [exterior wall] system related to design and constructability review, construction oversight and enforcement of construction quality control." Hearing Exhibit A-191. OKA responded to GSA by pointing out that it had strongly recommended against the metal stud backup system and that GSA had accepted this design over OKA's objections. Hearing Exhibit A-234. Because of its concerns about GSA's position, however, OKA engaged an additional inspector who would "focus strictly on the exterior wall" and who would be a stickler with respect to the quality of the wall. Hearing Exhibit A-911. 187. GSA's letter to Vitetta, also sent on September 4, 1992, observed that the wall system design was "unconventional" and stated that Vitetta would be "held accountable for any future failures of this wall system related to design and responsibilities ancillary to design in the construction phase." Hearing Exhibit A-232. Vitetta responded by disputing Mr. DeLucia's characterization of the wall system as "unconventional." Hearing Exhibit A-233. 188. The WJE report was issued in October 1992. It led to some twelve to fifteen changes to the design of the exterior wall throughout the fall of 1992. Most of WJE's recommendations were implemented, despite the fact that, by then, the project was significantly behind schedule with respect to the planned completion date. Hearing Exhibit A-156; Transcript at 642-43; Mitchelson Deposition at 119-20. 189. One of WJE's recommendations was to either change the veneer material to prevent cracking and water infiltration associated with the flexibility of the metal stud backup wall system or change the joints from mortar to sealant to allow flexing without cracking in the joints. In particular, WJE recommended deleting the mortar in the limestone joints to avoid cracking caused by deflection of the metal stud backup systems. Hearing Exhibits A-156, A-348; Transcript at 643-44, 864-67. On October 26, 1992, GSA issued field instruction number 62, directing deletion of mortar at all limestone joints and substituting a soft or caulked joint. Transcript at 644; Appeal File, Vol. V-C, Exhibit 10. 190. WJE's assessment of the exterior wall design also resulted in changes to flashing, substitution of bolts for screws to fasten the exterior wall, and the requirement of a drainage mat in the wall cavity between the metal stud wall and the limestone and block veneer. Hearing Exhibits A-156, A-291. Deflection of Relieving Angles 191. Although not required by the contract, SAE constructed two limestone mockups on the east side of the building, one from the granite base course up to the second floor relieving angle, and the other from the second floor relieving angle to the third floor. Transcript at 652-53. After building the mockup from the granite base to the second floor, SAE installed the second floor relieving angle and flashing that went from the concrete floor under the metal stud track and draped over the relieving angle. This construction was observed by representatives of OKA and GSA, who confirmed that the construction was proper and did not raise any objections to the techniques used by SAE. Appeal File, Vol. V-D, Exhibit 6; Transcript at 654-55. 192. During the process of erecting limestone from the second floor relieving angle to the third floor, SAE and Lepore noted stone movement and varying joint widths. SAE and Lepore both thought that this would be a result of deflection of the relieving angles from the loads created by the limestone panels. SAE measured the movements of the limestone panels and determined that some joints had closed to one-eighth inch in places. SAE raised the occurrence of deflection of the angles in its Quality Control (QC) daily report dated December 23, 1992. This report was provided to OKA. Hearing Exhibit A-326; Transcript at 655- 58. In a letter dated January 5, 1993, addressed to OKA, SAE repeated its concerns about deflection. Appeal File, Vol. V-C, Exhibit 51. Shortly thereafter, SAE stopped installing limestone. Transcript at 660-61. 193. In a memorandum addressed to OKA, issued on September 15, 1992, Vitetta stated that it had never calculated the deflection of the relieving angles. This was confirmed by the Vitetta architect who headed this project. Hearing Exhibit A- 158; Transcript at 3163. GSA's contracting officer's technical representative (COTR) testified that this was a surprise to the agency and stated that he would have expected these calculations to be performed by the architect as part of the structural engineer's responsibility. Mitchelson Deposition at 122-24. 194. Following discovery of the deflection concerns, Vitetta issued sketches directing alternate shim locations. GSA then directed SAE to furnish a drawing showing the location of the shims. Transcript at 661. Field instruction number 73 was issued on January 11, 1993, directing SAE to use multiple shims per stone. Appeal File, Vol. V-D, Exhibit 7; Transcript at 664. 195. The standard and accepted practice in masonry construction is to install shims for stone at approximately the one-quarter point of each stone. Transcript at 657, 928-29, 1207. Field instruction number 73 called for the use of more than two shims per stone at the belt course immediately above the second floor relieving angle. SAE and its masonry subcontractor were concerned that following the field instruction could cause inappropriate loading and failure of the stones. These concerns were stated in a letter dated January 18, 1993, in which SAE requested a formal directive from the contracting officer before it would proceed with the placement of the shims. Appeal File, Vol. V-D, Exhibits 5,7; Transcript at 665-66, 1207. 196. Thereafter, the contracting officer withdrew field instruction number 73, and instead directed SAE to produce shop drawings showing the placement of shims for all limestone on the building. Appeal File, Vol. V-D, Exhibit 11. GSA also directed SAE to uncover the relieving angle in the second floor mock-up area. Subsequently, this directive was expanded to include removal of all limestone on both the east and south elevations to the second floor relieving angles. Appeal File, Vol. V-D, Exhibits 13-14, 21. 197. SAE stripped the limestone from these areas between January 25 and 28. During the removal process it was noted that the welds in the relieving angle brackets did not comply with the shop drawings. An independent engineer who examined the welds concluded, however, that the welds had not failed and had not caused the deflection of the relieving angles. Appeal File, Vol. V-D, Exhibit 37; Transcript at 669-81, 827-28; Hearing Exhibit A- 457. 198. After determining that it was impracticable to weld in conformance with the shop drawings because of the unusually tight spacing of the exterior wall components, SAE submitted an alternative detail for welding at the relieving angle brackets. The alternative detail was submitted on February 9, 1993. Appeal File, Vol. V-D, Exhibit 42, Vol. V-E, Exhibit 19; Transcript at 671. 199. Vitetta approved the alternative detail in late February. SAE performed the additional welding on March 3, 1993. Appeal File, Vol. V-D, Exhibit 58, Vol. V-E, Exhibit 24. 200. As a result of the direction to use multiple shims with each stone, SAE retained a structural designer. The expert retained by SAE had been approved by Vitetta as a design professional for the design of exterior stone connections in an earlier project. This expert concluded that the use of multiple shims per stone was inappropriate and further advised that the first course of stone should be bedded in mortar. These conclusions were forwarded by SAE to GSA by letter dated February 9, 1993. Appeal File, Vol. V-D, Exhibit 44; Hearing Exhibit A- 371; Transcript at 668. 201. Limestone installation was stopped from January 10 until March 28, 1993, during which time SAE was unable to construct the exterior facade of the building. Transcript at 557-68. 202. In a letter dated March 2, 1993, OKA distributed a letter from Vitetta addressing limestone setting procedures. Appeal File, Vol. V-E, Exhibit 17. These procedures restored mortar joints to the limestone facade and, in cold weather conditions, provided a fifteen-hour cure period, which was deemed necessary at the relieving angle to ensure the joint was essentially non-compressible prior to placing subsequent levels above it. SAE took the position that the fifteen-hour waiting period resulted in construction inefficiencies at the forty-three continuous relieving angles. Transcript at 666-68, 1221-24; Hearing Exhibits A-790, A-797. 203. OKA, in a letter to the contracting officer, acknowledged that the stone setting procedure that SAE had been directed to follow would require changes to SAE's planned sequence and duration for installing limestone. Hearing Exhibit A-109. The new procedures would require demobilizing and remobilizing at another area in an effort to perform other work while waiting for bed joints to cure properly, or, alternatively, moving ahead and installing grip-stay anchors if no other setting location was available. Transcript at 1221-24; Hearing Exhibits A-790, A-797. Flashing Design Details 204. The wall system set forth various requirements for the installation of flashing in order to provide a water protection system behind the exterior veneer. The flashing was to lay under the metal stud track, down over the relieving angle, and project through to the exterior veneer for the purpose of ensuring that water penetrating the exterior veneer was kept out of the wall system to prevent corrosion and deterioration of the veneer anchors, sheathing, studs, and drywall. Transcript at 797-98, 801, 907. 205. Section 7600, paragraph 2.02.c.1, of the contract required seven-ounce copper flashing bonded with asphalt between two layers of fiberglass cloth. The flashing was to be used for through-wall applications. Appeal File, GSBCA 12253, Exhibit 3. The specified copper flashing came in rolls, and almost all of it had to be field fabricated. Transcript at 3058. 206. The contract required SAE to employ persons with expertise and experience in the installation of flashing. Appeal File, GSBCA 12253, Exhibit 3, 01040; Transcript at 3059. GSA contends that Lepore, the masonry subcontractor, which was also responsible for flashing installation under its subcontract with SAE, was not appropriately experienced in flashing installation. 207. The Trenton project posed unique design conditions and construction problems in the field with respect to the flashing and relieving angle conditions, especially as they interfaced with the curtain wall. Mitchelson Deposition at 138-40. Based on the contract drawings, SAE could only determine the design of flashing for a straight wall or typical relieving angle condition as opposed to changes in elevation and changes of the wall in or out. Transcript at 674. 208. Al Comly, Vitetta's senior project manager for the Trenton annex, testified that Vitetta did not endeavor to detail every flashing condition. He pointed out that the contract referred to a publication of the Sheet Metal and Air Conditioning Contractors National Association. This publication contained a collection of various flashing details and proper methods to install flashing at penetrations and around various building elements. Transcript at 3059-60; Hearing Exhibit R-58. Mr. Comly also testified that a variety of widely available publications detail flashing installation. He mentioned, in particular, a roofing manual published by the National Roofing Manufacturers Association (NRMA) that showed how to fabricate flashings and how to install the flashings under various conditions, including inside and outside corners. Transcript at 3064. 209. SAE recognized that the contract referenced flashing manufacturers' product literature. In SAE's view, this literature contained insufficient information and construction details to enable SAE to install the flashing appropriately. Transcript at 739-40. Mr. Comly was unable to locate any detail in the NRMA manual that would have assisted with flashing installation. Transcript at 3167. 210. SAE submitted RFI 267, dated September 18, 1992, seeking details for flashing a pipe penetration condition at the penthouse. The response received was not helpful; as a result, on October 7, SAE resubmitted this RFI and informed OKA that it was in the process of preparing additional RFIs to obtain flashing details needed for other areas of the building where the drawings contained similarly insufficient flashing details. Transcript at 673-74; Appeal File, Vol. VI, Exhibit 9. The response received from OKA and Vitetta was that no details could be provided because SAE had not provided shop drawings of the flashings. Transcript at 674-75; Appeal File, Vol. VI, Exhibits 9, 11. 211. SAE's position was that paragraph 1.04(c) of the flashing specification of the contract did not require the contractor to prepare flashing shop drawings except for prefabricated flashings. Nearly all copper laminated flashing, including that installed at the relieving angles, was field installed by SAE's subcontractor. Under then-current industry practice, SAE was not required to submit flashing shop drawings for field installed flashing. Transcript at 3168-69. 212. By letter dated November 11, 1992, addressed to GSA, Vitetta acknowledged problems with the contract flashing details and stated that it "had begun to develop an alternative set of details." Hearing Exhibit A-457. This action was prompted by WJE's recommendation that the architect prepare additional flashing details, including those at intersections with walls. Hearing Exhibits A-156, A-347, A-348. 213. By letter dated November 11, 1992, OKA sent to SAE "Request for Proposal 099," enclosing bulletin number 71 clarifying "laminated copper sheet flashing, limestone and sealant" with a number of details prepared by Vitetta. GSA subsequently issued field instruction number 67, on November 13, 1992, directing SAE to proceed in accordance with bulletin number 71. This added stainless steel flashing modifications recommended by WJE in its report. Appeal File, Vol. VI, Exhibits 16, 18, 20. 214. Thereafter, on December 14, 1992, SAE submitted RFI 318 seeking additional details for each of the conditions for which the contract drawings still did not contain sufficient detail to permit proper installation of flashing. Transcript at 677-78; Hearing Exhibit A-858. 215. Vitetta agreed that clarifications were needed to the flashing design in the contract drawings, but contended that Vitetta's response to RFI 318 had addressed them. Transcript at 3066-67. In a letter dated January 15, 1993, OKA sent SAE additional flashing clarifications to address SAE's flashing RFIs. These details differed from those provided by Vitetta in its letter of November 4, 1992. Appeal File, Vol. VI, Exhibit 45. 216. At GSA's request, Vitetta subsequently retained the services of an expert in flashing design, John Serke, who prepared a report containing isometric details of how the flashing should be installed. These installation details were received by SAE on or about March 2, 1993. According to GSA, Serke's diagrams showed methods for correcting defective work done by SAE's subcontractor. SAE takes the position that the flashing diagrams developed in the Serke report went far beyond what SAE's subcontractor had attempted to do in installing the flashing using existing contract drawings and information. Mr. Serke did not testify concerning the findings or purpose of his report. After receiving the details provided in the Serke report, SAE was able to proceed with proper installation of the flashing. Transcript at 678-79, 873, 959-63; Hearing Exhibit A- 482. 217. After the stone had been installed as instructed by GSA, SAE observed from the scaffold on the building exterior stones in very close proximity to the stone or stones below as a result of additional deflection of the relieving angles. This forced the stainless steel flashing down into contact with the stone below the relieving angles and prevented SAE from caulking the space between the underside of the flashing and the stone below as designed. GSA issued a change order deleting the requirement for caulking at these joints. Transcript at 672-73, 734-35. Deficiencies in Exterior Wall Design 218. Considerable expert testimony was provided with respect to the properties of the architect's wall design. Appellant's expert was Otto Guedelhoefer, a structural engineer with considerable experience in the design and construction of metal stud backup walls and curtain wall systems. His specialty is the evaluation and repair of distressed and damaged structures, particularly difficult projects with critical construction loads. Transcript at 764-69. Respondent offered the testimony of Ivan Becica, a professional engineer who had recently designed the Camden courthouse for GSA. The Camden courthouse was of a conventional design. Transcript at 3191, 3280, 3284-85. 219. The experts agreed that metal stud backed, cavity- veneer wall systems must be designed carefully to consider potential problems and to incorporate appropriate engineering solutions to these problems. Transcript at 784-85, 3202; Hearing Exhibits A-156, A-365, A-369, A-375, A-376. This project was a complex, articulated building with horizontally offset walls, a variety of construction materials, numerous planes intersecting in different directions, parapet walls returning to other flat faces and numerous significant openings. These features presented a challenge for ensuring that water was kept out of the wall system with an adequate flashing design. Transcript at 797- 98, 819-20. 220. All components of the wall system, including the metal studs, wall ties, flashing, relieving angles, and structural support, must function together to produce a structurally sound, watertight building exterior. Transcript at 808-09. Mr. Guedelhoefer expressed the opinion that it is the architect's responsibility to prescribe proper design details to achieve this result: [T]he critical aspect for the designer is to make sure he minimizes [deflection of the steel stud]. He does that in the metal stud system by taking due concern about the metal stud stiffness. He can control that by the gauge of the thickness of the metal, the dimensions of the channel shaping system of the stud, the spacing of the stud, and a number of different ways. Then, at the same time, he has to anticipate that he is going to have water intrusion. . . . As you add complexity in geometry [of a building], you continue to add demands to the design to overcome that complexity. In my opinion, that is specifically the purview of the designer. He is the first one. He starts with a clean piece of paper. He's the guy who is trained to be able to select materials that are compatible with one another. He's trained, and [in] the position, . . . to be able to describe the details that he thinks are appropriate to provide the assurance that a system that's already under certain fire in the industry is not going to be a problem for a building that is supposed to have a monumental long life as is described by the prospectus with the courthouse. Transcript at 817-18. 221. To avoid the infiltration of water into and through cracks in the mortar between stones on the exterior wall, the metal stud backup design must minimize the flexibility of the steel studs to avoid deflection and movement of stone. Transcript at 817-20; Hearing Exhibit A-859. 222. Mr. Guedelhoefer concluded, based upon an examination of the events leading up to the problems encountered in the exterior wall construction process, that the criticisms leveled at Vitetta's exterior wall design caused Vitetta to be extremely cautious about approving the contractor's submittals of exterior wall drawings. Transcript at 847-48. Mr. Guedelhoefer further opined that the requirement for a full scale at grade mockup demonstrated that the design of the exterior wall was incomplete, and was an attempt to complete the design during construction and to transfer design responsibility and coordination of exterior wall components to the contractor. Transcript at 840-41, 848. Even respondent's expert, Mr. Becica, testified that his engineering and architectural firm would not have designed the project with a metal stud backup wall. Transcript at 3314. 223. The building was intended to be designed for a fifty- year life. Transcript at 3129; Hearing Exhibit A-892. Mr. Guedelhoefer concluded that the architect failed to complete the design sufficiently to ensure the wall system would function consistently with long building life. Transcript at 869. 224. Contract Drawing A-24, specifically drawn for the purpose of showing control joints on the elevations of the building, does not show any control joints at the corners. Vitetta's design drawings showed control joints in a detail on Drawing S-16 and in another detail on Drawing S-14, on the north and south faces of the building. Relying on the contract drawings, Interstate showed the joints consistent with these details given that this was the only information it had. Appellant's expert testified to his opinion that placement of the control joints is not a responsibility of the contractor -- the contract documents should have shown the control joints at all places where the design professionals deemed them necessary. Transcript at 878-82; Hearing Exhibits A-345, A-350. 225. Vitetta ultimately directed that the control joints be on the east side of the building. Hearing Exhibit A-887. Interstate incorporated this in its third shop drawing submittal, which Vitetta approved on November 7, 1991. This piecemeal process delayed Interstate's fabrication of steel for the perimeter of the building because the relieving angles are bolted and then welded to gusset plates which are then attached to the perimeter steel beam. Findings 102-03. Fabrication of steel could not proceed until attachment points were determined. This in turn depended upon final placement of control joints. Transcript at 880-81; Hearing Exhibit A-345. 226. Appellant's expert also testified to his view that the contract documents contained design specifications with respect to drawings and specifications addressing limestone attachments. Transcript at 890, 895. It was not SAE's obligation to design the anchorage system, but rather to reflect in shop drawing submittals what the architect had designed in the contract drawings. Transcript at 895. Lepore's president similarly testified that when, based on Lepore's substantial experience as a contractor in this field, it undertook to suggest an alternate method of performance, including suggested modifications to the proposed anchorage system, the architect made it clear that Lepore was to adhere to Vitetta's drawings and specifications. Transcript at 1193, 1199. 227. In the opinion of Mr. Guedelhoefer, the Trenton project specifications did not contain necessary design criteria with respect to the limestone attachment process. Transcript at 904; see Hearing Exhibit A-370. The contract documents depict the standard methods used to fasten anchors to studs -- Tek screws, which are self-drilling fasteners not made of stainless steel.[foot #] 13 Transcript at 870-71; Contract Drawings A-36, A-36.2, A-39. The contract drawings did not show the limestone anchor tie receiver or stainless steel bolts that GSA ultimately directed SAE to use. Transcript at 891-92. The final approved limestone attachment detail differs substantially from the detail shown in the original contract drawings. Transcript at 902-03; Hearing Exhibit A-351. 228. The limestone anchor design was not finalized until the July 23, 1992, shop drawing submittal. Transcript at 900-02; Hearing Exhibits A-351, A-359. 229. In the opinion of appellant's expert, the contract drawings did not require the contractor to coordinate the metal studs with the limestone anchor tie location. Mr. Guedelhoefer, in fact, suggested that contract drawing A-39, detail 5, provided a method by which the alignment of those two elements of the wall system would be unnecessary. Transcript at 910-11; Contract Drawing A-39. In Mr. Guedelhoefer's judgment, the requirement to coordinate the separate metal stud and limestone anchor drawings ----------- FOOTNOTE BEGINS --------- [foot #] 13 SAE suggests that the recommendation of WJE that bolts be used in lieu of Tek screws supports the conclusion that the contract drawings did call for the use of Tek screws. Hearing Exhibit A-156. ----------- FOOTNOTE ENDS ----------- was improper because it is the designer's responsibility to coordinate design components prior to releasing the design for bids. Transcript at 911-12. 230. In November 1991, Lepore raised concerns with the design of the limestone attachment at the relieving angle, in the proposed use of a dowel penetrating the relieving angle, and the overall constructability of the limestone attachment. Lepore also brought up the potential for cracking inherent in the design's requirement for the use of mortar, a hard material that could crack with deflection of the stone. Transcript at 884-86. It is customary in the industry and considered to be obligatory for contractors to raise concerns of this nature. Transcript at 3306-07. 231. In the first set of limestone shop drawings, Lepore proposed an alternate that in SAE's view was more constructable, did not have strict tolerance requirements, did not penetrate the flashing, and did not create a potential for fracturing the stone through rotation or deflection. Transcript at 887, 1178-81; Hearing Exhibit A-359; Appeal File, Vol. V-A, Exhibit 9. In the opinion of SAE's expert, the limestone relieving angle attachment proposed by Lepore in its first set of shop drawings complied with the Indiana Limestone Institute Handbook, the reference incorporated in the contract. Transcript at 889. 232. SAE's expert also testified that if Vitetta intended to shift to the contractor the responsibility for limestone attachment design, it should have been more receptive to the recommendations and proposed design offered by SAE's subcontractor. Transcript at 903. 233. The Brick Institute of America (BIA) has established standards for allowable deflection of relieving angles supporting masonry at 1/16th of an inch. Transcript at 918. Reasonable design practice required that Vitetta calculate the deflection of the relieving angles under the load of the limestone panels because the amount of deflection cannot be accurately determined and predicted without such calculations. Transcript at 914-18, 3301; Mitchelson Deposition at 123-24. 234. To analyze the deflection issue, Mr. Guedelhoefer used a computer modeling program, a finite element analysis, to depict the unloaded angle, the angle under uniform loading conditions, the angle under loading with mortar bedding, and the angle under loading with the stone supported on the shims only, as would be the case with sealant joints. GSA's structural expert agreed that the finite element analysis constituted an appropriate methodology for analyzing relieving angle behavior under load. Under all conditions, the relieving angle deflects at a rate of approximately three times the allowable deflection of 1/16th of an inch. Transcript at 918-20, 3231; Hearing Exhibits A-349, A- 384. 235. Mr. Guedelhoefer's calculations were predicated on information from the structural steel shop drawings as to the size of the relieving angle and associated supports and their location, from the limestone shop drawings identifying the limestone panels, and from videotapes recorded by GSA during SAE's removal of the limestone after discovery of the deflection of the relieving angles. The deflection at the tip of the relieving angle predicted under Mr. Guedelhoefer's calculations is very close to the measured 3/16th of an inch displacement shown on GSA's videotape. Transcript at 924-25. 236. Mr. Guedelhoefer concluded that the deflection of the relieving angle first identified in SAE's daily report of December 23, 1992, occurred because of inadequate design of the relieving angle for support of the limestone. Transcript at 918- 19. The lack of profile and other technical aspects of the welds SAE applied to the gusset plates supporting the relieving angle, which were uncovered by removal of the limestone, did not and could not have caused or contributed to the relieving angle deflection. Transcript at 669-71, 927-28. Flashing Design Defects 237. Mr. Guedelhoefer testified that water infiltration will occur in any masonry building because the masonry materials, whether block, limestone, or brick, are not water resistant. The possibility of water infiltration must thus be addressed in the design of a flashing system that protects against water penetration reaching the veneer attachment devices or the metal studs themselves. These details, in Mr. Guedelhoefer's opinion, are the designer's, or architect's, responsibility in order to attain the building life expectancy promised to GSA by Vitetta. Transcript at 817-20; Hearing Exhibits A-859, A-892. 238. Because of the many questions raised with respect to the metal stud backup wall in the context of this particular building design, in SAE's expert's opinion, flashing details were critical and required to be more complete and of higher quality than in a garden- variety, geometrically simple building with a concrete masonry unit backup wall as opposed to the project's metal stud backup wall. Transcript at 820. 239. In Mr. Guedelhoefer's opinion, it was Vitetta's responsibility to provide adequate details of flashing in locations such as interior corners, exterior corners, splices or laps, parapet walls abutting another wall, and an offset relieving angle at a different elevation than the adjacent angle. The contract documents did not contain any design details for such conditions. Transcript at 812-23. Instead, the only flashing detail provided by Vitetta depicted typical locations on the building. The building's geometry, however, introduced many atypical conditions not addressed by the details shown in the contract drawings. Transcript at 823-24. 240. The flashing specifications are set forth in section 07600 of the contract drawings. These specifications did not, in Mr. Guedelhoefer's view, impose upon the contractor the obligation to design flashing. Transcript at 825. Defects in Metal Stud Backup Wall Design 241. The contract drawings depicted the metal stud backup wall system as completely designed, despite the specification's language that the contractor was responsible for design. In reality, however, the corners and windows of the building required far more metal studs than the contract drawings showed. Transcript at 850-52. 242. In submitting shop drawings, SAE's subcontractor showed the same standard spacing depicted in the contract drawings in the corner areas. Transcript at 856-57. In responding to GSA's questions about the stiffness of the metal stud backup wall, Vitetta represented that it had calculated the design of the metal stud backup wall to meet the deflection criteria directed by GSA using sixteen-inch spacing of studs. In reviewing these calculations, Mr. Guedelhoefer concluded that Vitetta intended a configuration and arrangement of studs consistent with that shown in the contract drawings, rather than bunched studs at the corners of the building and was unaware of the impact on the number of studs necessary for the wall to withstand windloads at the corners of the building. Transcript at 862-63; Hearing Exhibit A-415. 243. The first set of metal stud backup wall shop drawings, submitted on April 9, 1992, reflected corner conditions consistent with the standard sixteen-inch spacing reflected in the contract drawings. These were returned on May 6 marked revise and resubmit. In reviewing these drawings, Vitetta circled only two corner conditions near the beacon (see Finding 244) and noted that "fabricator/designer verify that the studs, this area, are designed for corner conditions." There were, however, many similarly atypical corners which were not noted until the second shop drawing submittal on June 2. This submittal was returned by Vitetta on June 30, 1992. Transcript at 858-60; Hearing Exhibits A-336, A-361. Curtain Wall Issues 244. The curtain wall, or beacon, provided for in the contract documents was a multi-storied glass and aluminum enclosure on the north elevation of the new building. Appeal File, GSBCA 12253, Exhibit 3. 245. SAE initially intended to subcontract with National Glass and Metal Co., Inc. for the glass and glazing work required for the project. On September 30, 1991, National Glass informed SAE that the subcontract agreement was unacceptable and that it would not proceed with the work. Appeal File, Vol. IX, Book 1, Exhibits 11, 12. 246. SAE then entered into an agreement with Atlantic Plate Glass (APG) for the glass and glazing work. The subcontract with SAE was not signed until March 5, 1992. Transcript at 4039; Hearing Exhibit R-12 at 3-24. APG in turn subcontracted with Kawneer Company, Inc., to supply the curtain wall and shop drawings. Transcript at 2249. 247. Under SAE's original construction schedule, the curtain wall subcontract was required to be in place by October 1, 1991, in order to meet SAE's planned date of December 24, 1991, for beacon shop drawings submittal. Because of the delay in entering into a subcontract for the curtain wall work, the first set of shop drawings for the beacon was submitted on May 7, 1992. Hearing Exhibit R-34. OKA, in its analysis of delay on the project, concluded that delays in locking in a subcontract for the curtain wall work caused this string of activities to be extended by some nineteen weeks, from the initially scheduled completion date of June 22, 1992, to November 2, 1992. Transcript at 4039; Hearing Exhibit R-12. 248. The glass and glazing work was divided into two phases. Phase I included the punched window openings and Phase II included the curtain wall/beacon and sloped glazing. Transcript at 2784. The Phase II shop drawings initially submitted on May 7, 1992, were returned on June 11, 1992, with the review action "rejected-resubmit as specified." Hearing Exhibit R-34. 249. In reviewing the Phase II shop drawings, Vitetta raised various issues regarding the ability of the proposed curtain wall system to meet contract specifications. Transcript at 2790. These issues were as follows: 1) whether the curtain wall as proposed met the requirement for pressure equalization; 2) whether the curtain wall drawings had been coordinated with structural steel shop drawings; 3) whether the profile and number depths deviated from drawings; and 4) whether the vertical members were custom-designed and not tested. Appeal File, Vol. VIII-A, Exhibit 13; Transcript at 2790-96. Because Vitetta considered that there was no point in reviewing the shop drawings until these issues had been addressed to Vitetta's satisfaction, Vitetta held, rather than rejected, the shop drawings. Transcript at 2809-10. Pressure Equalization 250. The contract stated that "[t]he curtain wall system must exhibit a pressure equalized design, no pressure bar systems will be accepted." Appeal File, GSBCA 12253, Exhibit 3, 08920, 1.06(H)(3). In a pressure bar system the glazing is held in place by bars fastened into the backup extrusion from the outside of the curtain wall. Transcript (Nov. 8) at 60. A pressure bar system can also have a pressure equalized design, however. Transcript at 4614. 251. Pressure equalization is intended to prevent water penetration through a curtain wall. It is achieved by using an exterior and interior seal, or barrier, which creates a cavity. The pressure in the cavity is equalized with the outside pressure, allowing any water that infiltrates the exterior barrier to drain out. Without the pressure equalized cavity, negative pressure on the inside of the building can work to draw water into the building. Transcript at 2791-92; Transcript (Nov. 8) at 7. 252. APG's subcontractor, Kawneer, proposed supplying a curtain wall system based on its 1600 IG (inside glazing) model. Of the variety of commercial 1600 curtain wall systems offered by Kawneer, only the 1600 concealed vent and the 1600 sheerwall were specifically advertised as containing a pressure equalized design. The 1600 IG was not anywhere described as pressure equalized in Kawneer's literature. Hearing Exhibit A-495. According to Vitetta, if a curtain wall is pressure equalized, the literature will ordinarily so state. How secondary seals are proposed for the system also provides an indication of pressure equalization. Transcript at 2794-95. 253. In a letter dated June 16, 1992, Kawneer described four basic principles of pressure equalized design and explained how the proposed 1600 IG model met those engineering principles. Appeal File, Vol. IX, Book 1, Exhibit 20. 254. In a meeting held on June 17, 1992, Vitetta requested that Kawneer provide a certification by an engineer representing the manufacturer that the 1600 IG system was pressure equalized. Vitetta also wanted Kawneer to provide details showing the measures required to ensure that a pressure equalized design was accomplished, and test or other supporting data to show pressure equalized design. Appeal File, Vol. IX, Book 1, Exhibit 20. Vitetta responded to Kawneer's June 16 letter by letter dated June 26 stating that it required the information described in the June 17 meeting. Appeal File, Vol. IX, Book 1, Exhibit 20. 255. On June 29, 1992, SAE forwarded a letter it had received from Curtain Wall Design & Consulting, Inc. (CDC), after reviewing the contract specifications and the Kawneer IG details, stated that: CDC agrees that the glazing pocket around IG perimeter provides a pressure equalized chamber as long as the removable glass stop is wet sealed to the horizontal extrusion. A continuous fillet bead of curtain wall sealant along the upper corner of the glazing pocket is needed to complete the air barrier seal around the chamber. This fillet bead should also follow along the vertical edges of the glass stop where it terminates on each end at the mullion. Appeal File, Vol. IX, Book 1, Exhibit 23. By letter dated July 7, 1992, Vitetta took the position that CDC's letter was not acceptable because the representations in the letter were not directly made by Kawneer and shop drawing details for the secondary seal were not included. Appeal File, Vol. IX, Book 1, Exhibits 22, 24; Transcript at 2824. 256. On July 15, 1992, SAE informed APG of Vitetta's position that supporting data would be required to demonstrate that the proposed curtain wall system was pressure equalized. Appeal File, Vol. VIII, Exhibit 33. On July 22, 1992, SAE forwarded a letter authored by a Kawneer field product specialist, dated July 14, which described the manner in which the pressure equalization principle was incorporated into the 1600 IG. Appeal File, Vol. VIII, Exhibit 34. This letter included a sketch which showed the continuous horizontal seal between the interior glazing bead and the extrusion described in CDC's July 7 letter. Vitetta's concern, however, was that the statements made about the 1600 IG's pressure equalized design were not made by a Kawneer engineer or by a Kawneer representative authorized to make technical representations about the 1600 IG design. Transcript at 2825-26. 257. Vitetta considered that it was important to have a Kawneer engineer represent that the proposed system would be pressure equalized because of the lack of a standardized test in the industry. Although many curtain wall systems can be adapted to have pressure equalized performance, proper installation in accordance with these adaptations is critical. Transcript at 2827. 258. On July 29, 1992, SAE forwarded a letter dated July 27, 1992, which was authored by Kawneer's engineering manager. This letter offered a detailed explanation of how the 1600 IG system met the requirements for a pressure equalized design. Included with the letter was Kawneer's sketch SK-1, a cross-section of the 1600 IG's horizontal member, showing the installation of a continuous horizontal seal and a vertical seal between the mullion and the glazing bead to seal the glazing pocket. This communication was deemed by Vitetta to provide adequate backup data and information as to how the 1600 IG would be installed to ensure that it would meet the requirement for pressure equalized performance. Appeal File, Vol. VIII-A, Exhibit 36; Transcript at 2828. The details for the seals shown on sketch SK-1 were not provided until the submittal of the third set of shop drawings. Transcript at 2874; Hearing Exhibit R-41. 259. For curtain wall systems, the contract required that the contractor: Provide the Manufacturer's stock curtain wall system, adapted to the application indicated, that complies with performance requirements specified as demonstrated by independent testing of the Manufacturer's corresponding stock systems according to test methods indicated. Acceptance or rejection of standard tests shall be determined solely by the Architect. Appeal File, GSBCA 12253, Exhibit 4, 08920, 1.04A. The specifications further required the contractor to: Provide test reports from a qualified independent testing laboratory that show compliance of the manufacturer's stock glazed aluminum curtain wall system with performance requirements indicated based on comprehensive testing of the system by the laboratory within the last 10 years current production of the system by the manufacturer. Acceptance or rejection of test reports shall be judged solely by the Architect. If existing test reports are not accepted, testing of the curtain wall shall be required as below. Appeal File, GSBCA 12253, Exhibit 4, 08920, 1.05E. 260. Taking into consideration the geometry of the beacon, SAE proposed a two-piece custom vertical mullion in its first beacon shop drawings submittal. Hearing Exhibit A-357; Transcript at 2797-99, 4541-42. The test reports submitted with this submittal, however, were for a one-piece stock vertical mullion. Hearing Exhibit A-495; Transcript at 2797-99. On June 11, 1992, SAE was informed that the curtain wall submittal was being rejected in part because of the discrepancy in the mullion proposed versus the mullion test reports submitted to the Government, which the architect did not deem to be acceptable verification that the two-piece system met contract requirements. Appeal File, Vol. VIII-A, Exhibit 14. 261. On November 12, 1992, SAE submitted shape sketches for the beacon frames. Shape sketches are usually submitted prior to the ordering of an extrusion to ascertain whether there will be problems with the proposed dimensions or profiles. On November 18, Vitetta returned the shape sketches, which included the two- piece vertical mullion but did not show that this mullion met performance requirements, marked "revise and resubmit." Vitetta wanted to know whether the two-piece mullion had been used previously and whether detailed test reports were available. Hearing Exhibit R-38; Transcript at 2821. 262. In a meeting held on December 1, 1992, it was agreed that if Kawneer would provide information demonstrating that the two-piece mullion was used and tested in a previous application, then GSA would reconsider the need for preconstruction tests. One of the major concerns was how the fasteners for the two-piece mullions would perform under negative pressures and how they would respond to seismic racking. Transcript at 2819. The meeting gave rise to twelve "action steps" that were agreed upon by the attendees. Appeal File, Vol. VIII-B, Exhibit 11; Transcript at 2843-44. 263. On December 4, 1992, the contracting officer told SAE that since information regarding the previous use and testing of the two-piece mullion had not been received, SAE would be required to conduct preconstruction tests of the two-piece mullion to ensure it met performance requirements. Appeal File, Vol. VIII-B, Exhibit 13. On December 10, 1992, SAE forwarded details from different Kawneer systems to demonstrate how the proposed two-piece mullion would perform under negative pressures. Appeal File, Vol. VIII-B, Exhibit 17. After reviewing this information, Vitetta concluded that two of the details were for a different system, a third detail was for a pressure plate system, and none of the information addressed its concern about the fasteners' ability to resist negative pressures. Based on this, Vitetta recommended preconstruction testing be performed. Appeal File, Vol. VIII-B, Exhibit 20. 264. Thereafter, SAE's project manager requested that the testing requirement be modified to accommodate the current schedule, which would have been negatively impacted by the time required for testing. Appeal File, Vol. VIII-B, Exhibit 29. 265. Another meeting to address the curtain wall issues was convened on December 30, 1992. SAE stated at that meeting that it was proceeding with preconstruction testing and that shop drawings for the mockup would be submitted on December 31. Kawneer asked if the issue could be resolved by using a one-piece or monolithic mullion instead of the custom two-piece mullion it was proposing. It was confirmed that preconstruction testing could be avoided if appellant provided information showing that a similar two-piece system had been previously used and tested on another project or revised the system to a one-piece mullion. Appeal File, Vol. VIII-B, Exhibit 33. 266. On January 12, 1993, SAE and its subcontractor elected to proceed with a monolithic mullion instead of the two-piece mullion. Appeal File, Vol. VIII-B, Exhibit 45; Transcript at 2846. Prior to that time, the second set of shop drawings had been submitted on October 29, 1992, and returned on December 9, 1992, with the review notation of "revise and resubmit." Hearing Exhibits R-4, R-35; Transcript at 2822. These drawings had been held, rather than rejected outright, because issues needed to be addressed before Vitetta could proceed with a detailed review. Transcript at 2835. According to Vitetta, the fundamental issues raised in the first set of shop drawings were not resolved in the second set of shop drawings submittals, either. In particular, the shop drawings still proposed a two-piece mullion to which submitted tests and calculations did not apply. Transcript at 2823, 2836. Further, coordination with structural steel was an issue. Kawneer was not working with the correct structural steel shop drawings and failed to address necessary modifications to the building structure to support the loads imposed by the beacon. Transcript at 2836-37. 267. The third set of shop drawings was submitted on March 10, 1993, and returned on March 23, 1993. About half of the drawings were approved; the remaining drawings were marked "revise and resubmit." Hearing Exhibits R-4, R-36. Although some of the general notes from the second set of shop drawings had still not been fully addressed in the third set of submittals, the fundamental issues identified in June 1992, were addressed and resolved. Appeal File, Vol. VIII-C, Exhibit 23; Transcript at 2867-69, 2872. 268. By GSA's calculations, using SAE's scheduled durations and taking into account the impact of the late award of a curtain wall subcontract, the submittal and approval of the beacon shop drawings should have been completed over the period from March 5 through June 20, 1992. Instead, the process took from March 5, 1992, through July 2, 1993, before the beacon was released for fabrication. This shop drawing delay, which GSA attributes to SAE, caused the string of activities associated with the curtain wall to slip by fifty-seven weeks. Hearing Exhibit R-12; Transcript at 4040. Fabrication Delays to the Curtain Wall System 269. On May 12, 1993, APG forwarded to appellant the following request for information from Kawneer: "What would it take to have elevations shown on our shop [drawings] verified in the field or if they don't exist, guaranteed?" Appeal File, Vol. VIII-C, Exhibit 32. Subsequently, APG conducted a preliminary field site check of the as-built conditions. In that visit, APG discovered discrepancies of 3/4 inch and 1 inch between the shop drawings and as-built conditions on the third floor. This prompted APG's letter of August 10, 1993, which stated that the shop drawings were prepared in accordance with approved beacon shop drawings, and that it had been assured many times that the steel shop drawings correctly reflected field conditions. Appeal File, Vol. VIII-C, Exhibit 43. On August 23, 1993, APG informed SAE that Kawneer was on hold for the curtain wall until the as- built conditions for masonry and structural steel were verified. APG further stated that it was waiting for marked-up drawings before it would have Kawneer commence fabrication of the beacon. Appeal File, Vol. VIII-C, Exhibit 44. On September 13, 1993, SAE instructed APG to fabricate the beacon in accordance with the shop drawings that were approved on June 21, 1993, and informed APG that any variations in the substrate would be the responsibility of the appropriate subcontractors. Appeal File, Vol. VIII-C, Exhibit 45. 270. Upon being told by APG that the delivery schedule for the beacon had slipped to mid-January 1994, instead of November 1, 1993, SAE informed APG that its hold on fabrication of the curtain wall was unjustified because no stop work order had ever issued; SAE also told APG to proceed with fabrication since there would be an opportunity to make adjustments to dimensions as the fabrication process was still in the die-making and extrusion phase. Appeal File, Vol. VIII-C, Exhibit 47. 271. The delay in fabrication of the beacon was contributed to by APG's decision to put a hold on fabrication of the beacon because of dimensional discrepancies in as-built conditions. GSA's schedule witness testified that this delayed the beacon string of activities by thirteen weeks, from December 17, 1993, to March 23, 1994. Hearing Exhibit R-12. 272. Although SAE argues that the beacon activities do not appear on the critical path because it was possible to build temporary partitions to allow interior work to proceed, Transcript at 4440-41, GSA maintains that while SAE could have started to install temporary partitions any time after February 22, 1993, it did not do so in an effective manner. Transcript at 4636-37; Hearing Exhibit R-96. A progress photograph dated March 1, 1993, shows a piece of blue plastic covering the beacon area on the outside of the building, but the plastic was ripped and SAE was having problems with this enclosure. Transcript at 4642- 43; Hearing Exhibit R-102. Progress photographs taken on April 1, 1993, reflect that no temporary partitions had been installed for the fourth through seventh floors. Hearing Exhibits R-98, R- 99, R-100, R-101; Transcript at 4638-41. 273. At the same time, installation of the main roof, which was scheduled to start on April 29, 1993, and be completed on May 19, 1993, had not been completed as of September 1, 1993. Windows were still being installed as of that date, as well. Hearing Exhibit R-112A-G; Transcript at 4647-55. Roofing Issues 274. The contract specified two types of roofing -- modified bitumen on the flat surfaces and metal on peaked or sloped surfaces. Appeal File, GSBCA 12523, Exhibit 2; Transcript at 2968-69. Prior to installing the roof, the contractor was required to complete a roof deck and insulation. Completion of the structural portion of the parapet walls was also necessary. Transcript at 2969. 275. Respondent attributes delays in installation of the roof to SAE. The initial shop drawings for the roof were transmitted to Vitetta on February 19, 1992, and were rejected as incomplete. A second submittal was not received until July 23, 1992. This submittal was "approved as noted" on August 18. Hearing Exhibit R-4; Transcript at 2970-71. 276. Although submittals for the flat portion of the roof were approved, this roof system was not installed. Rather, the contractor subsequently submitted a different roofing package and started the roofing submittal process all over again. Transcript at 2972. Final roofing submittals were not complete and approved until the summer of 1993. Transcript at 2973-75. Kickers 277. A kicker is a steel angle support bracket which, on the seventh floor of the building, runs from the structural wall to the underside of the roof deck. Field conditions required the installation in some areas of steel channels in order to properly weld the kickers to the roof structure. Appeal File, Vol. VII, Exhibits 1, 2, 5. 278. SAE's subcontractor ran out of ground face block and failed to complete masonry work on schedule. This delayed installation of the kickers for two months and thus delayed enclosure of the building. Appeal File, Vol. VII, Exhibit 12. Termination for Default 279. In the spring of 1993, SAE prepared a "work-around schedule" for the purpose of resequencing remaining work from the sequence used in the schedule prepared in December 1992. Appeal File, Vol. X, Exhibit 77. This schedule projected a September 1994 completion date. Transcript at 76, 686-87; Hearing Exhibit A-301. The work-around schedule was used by SAE to manage the project and was regularly updated by SAE. It included revised sequences and other attempts to manage the time impact of continuing delays. Transcript at 1047-48. 280. The contracting officer accepted the schedule, subject to comments provided, as a plan to complete the project, but specifically stated that it was not accepted as a work-around schedule as defined by the contract.[foot #] 14 Appeal File, Vol. X, Exhibit 82. 281. This schedule was prepared with the expectation that most substantial issues had been taken care of, that there would be no further substantial delays given that the issues regarding limestone connection details, relieving angle deflection, and flashing details were resolved, the exterior wall work was advancing satisfactorily, roofing work was underway, and drywall and other interior work was about to begin. Transcript at 688. 282. In order to move the curtain wall approval and construction activities off the critical path, and with the knowledge and agreement of GSA and OKA, SAE constructed a temporary enclosure and roof over the beacon area in the summer of 1993. This enclosure was intended to allow for installation of drywall. SAE commenced drywall installation in late July 1993, and until the termination for default of the contract, continued to install drywall throughout the building with the exception of areas immediately adjacent to the beacon. Transcript at 685-86; Hearing Exhibits A-310, A-913. 283. In the fall of 1993, SAE had increased manpower and begun to build momentum toward completing the project. At that point, SAE had no expectation that the contract might be terminated. SAE's subcontractors confirmed that this was the status of the project at this point, and that the default termination action came as a surprise. Transcript at 694-95, 1449-50, 1728, 1782, 1817, 1998-99, 2063, 2152-53, 2289; Hearing Exhibit A-697. ----------- FOOTNOTE BEGINS --------- [foot #] 14 Section 1310, 1.08 of the contract addresses the use of a "work-around schedule": Purpose: Work-around schedules, or "workarounds" may be used to adjust the sequence of construction activities and/or the approach to the construction in order to accomplish any or all of the following: 1. Recover lost time. 2. Get ahead on the schedule progress or accomplish a specific activity earlier. 3. Overcome a specific obstacle or obstacles that would otherwise hold up work. Appeal File, GSBCA 12253, Exhibit 3. ----------- FOOTNOTE ENDS ----------- 284. In the summer of 1993, SAE and GSA officials, including the Deputy Regional Administrator, had been meeting to discuss a completion schedule for the project and to negotiate resolution of outstanding claims of both parties. These meetings were premised on the understanding that the delays were attributable to some extent to both parties, and the recognition of the importance of getting back on track promptly. Transcript at 82- 84, 691-95; Hearing Exhibit A-241. 285. Appellant submitted monthly updates to the work-around schedule through October 1993. Hearing Exhibit R-85. OKA concluded from a review of the monthly updates that the work was continuing to slip through the date of the contract's termination for default. Transcript at 4035. 286. Despite what appeared to SAE to be progress toward negotiating a resolution of differences with GSA and agreeing to a reasonable schedule for completion, on October 22, 1993, the contracting officer issued a decision terminating the contract for default. That decision informed SAE: The Government has carefully considered the prosecution of the work by your firm under th[is] contract. Under the terms of the contract, completion of the work was expected by October 27, 1993. However, at minimum, 30% of the work is still not complete and cannot be completed by October 27, 1993. Insufficient progress has been made toward enclosing the building. Your firm has failed to furnish an acceptable revised work schedule. The information provided by your firm alleging Government delay has been analyzed and found to be meritless. In total, your firm has failed to prosecute the work with the diligence that will insure its completion within the time specified by the contract. Accordingly, consistent with Clause 98 of the General Clauses of the Contract (FAR CONSTRUCTION) (APR 1984), the Government is terminating your right to proceed with the work under this contract. Hearing Exhibit A-210. SAE's Schedule Analysis 287. A schedule analysis was undertaken by SAE's expert, Mr. Douglas Coppi, and presented at the hearing to assist in allocating responsibility for the various delays associated with the project. Hearing Exhibit A-101. What follows is a summary of the expert's testimony and views concerning the schedule impacts of various events occurring in the course of this project. 288. Mr. Coppi, the National Director of Construction Litigation for Coopers & Lybrand, and the head of this accounting firm's Coppi & Associates division, testified as SAE's expert with respect to construction scheduling and cost analysis. Mr. Coppi has a degree in civil engineering and has many years of experience in schedule, cost, and overall claims analysis. Transcript at 1008-28; Hearing Exhibit A-558. 289. SAE initially retained Coppi & Associates in the fall of 1992 to assist with preparation of a schedule that GSA would approve. Prior to retaining Mr. Coppi, SAE, in March 1992, had submitted a CPM project schedule. At the time Mr. Coppi was brought on board, SAE was still awaiting GSA's input on that schedule. GSA's comments were received on November 24; substantive comments and specific recommendations were provided in a December 9, 1992, letter authored by OKA. Transcript at 1038-39. Mr. Coppi and his staff reviewed and revised SAE's then-existing schedule, taking into account comments provided by OKA. OKA's comments were incorporated into a schedule referred to as TSBL [Trenton schedule baseline], which was submitted on December 24, 1992, within the fourteen-day period for revision. Coppi & Associates also reviewed the then-pending caisson and structural steel claims. Transcript at 1028-29, 1034, 1039-40. 290. Upon receipt of additional comments from OKA in February 1993, Coppi & Associates further revised the TSBL to incorporate these comments. The new schedule was referred to as TRCL (Trenton claim). Neither schedule was approved by GSA, however, ostensibly upon the advice of OKA that approval of the schedule would establish a baseline for pending claims with respect to the caisson, structural steel, and exterior skin issues. Transcript at 1042, 4159-66; Hearing Exhibit A-903. 291. Eventually, GSA did provisionally accept a work-around schedule in the spring of 1993. Finding 280. Once the work- around schedule was accepted, it was updated monthly and used by SAE and its trades to perform everyday activities on the project. Transcript at 1045-48. 292. At that point, the completion of the building exterior and installation of the beacon, or glass curtain wall, was the principal factor delaying the progress of construction. OKA, in an earlier report dated January 5, 1993, noted the following, however: The critical path was through building watertight (roof, walls, windows and Beacon curtain wall all completed), which restrained the start of all interior water sensitive finishes until late April or mid June 1993. . . . [A] means of working around the requirement to enclose all the building before starting interior drywall work is needed. . . . The means and methods of achieving the needed building tight conditions are not addressed in this report as these are felt to best be left up to SAE. In this report OKA expressed the view that the Beacon curtain wall area could be temporarily enclosed for both water and environment control in courtrooms. Hearing Exhibit A-106. This opinion, that an interim enclosure technique for achieving interior finish work would be viable, was repeated in a letter to GSA dated January 28, 1993. Hearing Exhibit A-303. 293. SAE commenced erecting temporary partitions to enclose the beacon area in August 1993. This activity allowed the project's critical path to run through the interior work without completion of the beacon curtain wall. Transcript at 4248; Hearing Exhibits A-303, A-913. In a report dated October 22, 1993, OKA projected a construction completion date of November 3, 1994, based on its conclusion that the critical path, at that point, ran through interior finish work. Hearing Exhibit A-310. 294. Mr. Coppi presented a detailed schedule analysis at the hearing of these appeals. His analysis was contained in a lengthy narrative and various exhibits, and was further summarized in eight charts depicting the schedule impact on the particular activity delayed and the overall extension of the project. Transcript at 1073-75; Hearing Exhibit A-101. 295. In working with SAE to develop a consolidated impact claim, Coppi & Associates strove to incorporate the individual time impact analyses for such issues as caisson delay, the metal stud backup system, exterior skin work, and the like, and present a coherent overview of the impact of the various events on the overall progress of the project. Transcript at 1051-52. Coppi & Associates undertook to develop what it believed was an appropriate baseline schedule. This was done by taking the TSBL, incorporating OKA's April 1993 comments and arriving at the TRCL. This became Mr. Coppi's baseline schedule, or the starting point, for the CPM analysis presented to the Board. Transcript at 1053- 54. 296. In preparing this schedule analysis, Coppi & Associates reviewed numerous documents, including the contract, applicable specifications, the contract drawings, the shop drawings, RFIs, change orders, proposed change orders, project correspondence between SAE and its subcontractors, SAE and GSA, SAE and OKA, GSA and OKA, GSA and Vitetta, and OKA and Vitetta, schedule updates, minutes of meetings, OKA's monthly reports, and daily reports prepared by various project managers. Transcript at 1054-55. Coppi & Associates also met with SAE and its subcontractors to obtain firsthand information from the individuals who were on the scene and to gauge the accuracy of their recollections. Transcript at 1056. 297. The methodology for the schedule analysis was selected by Mr. Coppi, who deemed this approach to be consistent with the specification. The methodology used "marches through the project, [and] measures where the project stood during certain milestones." Some of the milestones used included completion of the caissons, completion of critical concrete work, completion of structural steel, and various milestones applicable to installation of exterior skin. Coppi & Associates undertook to determine where the project was both prior to and after an alleged delay or change, and to measure the effect on the project completion date. Transcript at 1059. This was an adaptation of the schedule specification used in SAE's contract, which, in Mr. Coppi's opinion, was not intended for use in the situation that occurred here, where many overlapping events affected contract completion, in contrast to the more typical project experience of several stand alone delays. Transcript at 1060. Because many of the delays, such as those impacting critical concrete and structural steel, occurred concurrently, it was necessary to net out the delays to derive the proper impact on the critical path and determine the time extensions to which the contractor is entitled. Transcript at 1061. Because of the many overlapping project delays, Mr. Coppi did not perform a traditional adverse weather study. To facilitate accuracy and completeness of the study, however, the CPM analysis included weather as a delay factor. Mr. Coppi explained that weather delays included in his analysis represented no more than five percent of the overall delay experienced on the project and did not materially affect the analysis. Transcript at 4447-48; Finding 328. 298. Each chart prepared by Coppi & Associates presented a graphic depiction of the overall project's critical path before and after each critical delay event. The top of each chart showed the project schedule as it stood prior to the impact and the bottom of the chart detailed how the impact affected the project schedule. The time impact analysis at the bottom of the chart is then carried forward to become the schedule baseline of the following chart, which shows the cumulative effect of the various impacts. Transcript at 1077; Hearing Exhibit A-101. 299. Mr. Coppi testified that the charts' arrows, representing specific activities, differ in length depending upon how long the particular activity was on the critical path. The data associated with the end of each arrow does not necessarily indicate the activity was completed, but for purposes of the schedule analysis, that it was completed to the point where follow-on activity could commence -- i.e., it was no longer on the critical path. This use of the as-built information was adopted to be consistent with Mr. Coppi's understanding of the time impact analysis (TIA) approach provided for in the contract. Transcript at 4458. 300. All "days" referred to in the charts are "calendar days." Transcript at 1076-77. Caisson Delays 301. Impact I, as shown on chart 1, presents Mr. Coppi's quantification of the delay caused by the differing site condition and resulting intensified inspection process which impacted progress of the caisson work. Transcript at 1079-80; Hearing Exhibit A-101. 302. Under Mr. Coppi's analysis, the differing site condition is deemed to have caused forty calendar days of delay to caisson installation for two reasons. First, the unexpected subsurface conditions required a redesign of the caissons, which stopped work from July 10 to July 31, 1991. Second, the redesigned caisson work itself required more time to complete because the rock encountered required more drilling than could reasonably have been anticipated based on the information supplied to prospective bidders. Transcript at 1080; Hearing Exhibit A-101. 303. Under Mr. Coppi's analysis, the forty-day delay to installation of caissons delayed the start of the next critical activity, which Mr. Coppi determined to be concrete foundation walls, from the planned start date of July 31, 1991, to September 9, 1991. As of that date, sufficient caissons were installed to allow the start of concrete work on the critical path in the A-D, 12-24 line walls. Transcript at 1080-81, 1085, 4461; Hearing Exhibit A-101. 304. Mr. Coppi determined that the redesign period for the caissons accounted for fourteen of the forty days of delay, from July 17 through July 31, 1991. An additional twenty-five days were required because of the differing site condition itself and the extra inspection attributable to concerns over the adequacy of the caissons' load-bearing abilities. One remaining day of delay was attributed to severe weather. SAE mitigated the total delay associated with caisson installation by performing out-of- sequence work on the concrete foundation wall at column line G-24 to G-17 from August 21 through September 9. Since this concrete work would have been critical later in the project, this reduced the impact of the caisson delay by six days, to a total of thirty-four. Under this analysis, based on the delay in caisson installation alone, the duration of the project was extended to July 19, 1993. Transcript at 1081-83, 1085; Hearing Exhibit A- 101. Structural Steel/Concrete Delay 305. Impact II(a), as described in Mr. Coppi's chart 2, quantified the schedule extension justified by delays relating to structural steel shop drawings and concrete. This analysis begins with the critical path as adjusted to account for the preceding delay in caisson installation. Transcript at 1085-86; Hearing Exhibit A-101. 306. This adjusted critical path showed that SAE planned to start east structural steel work immediately upon the completion of the critical concrete work on November 28, 1991. As of November 28, critical concrete was not complete and structural steel was not ready to start. Transcript at 1086; Hearing Exhibit A-101. 307. The structural steel was not ready on November 28 because of delays in the shop drawing approval process for which SAE assigns responsibility to GSA. Delays in modifying the control joints and approving the relieving angle shop drawings prevented completion of detailing and fabrication of the perimeter structural steel in steel derricks 1 and 24, and others, until February 3, 1992. The relieving angles attach directly to supports attached to the structural steel spandrel beams on the perimeter steel. Transcript at 460, 884, 1085-86. 308. The concrete was not completed by this time initially because the concrete subcontractor was hampered by tight site conditions brought about by ADI's second caisson drilling rig, then by numerous RFIs, and finally by the caisson delay extending into cold weather conditions. Transcript at 1086, 1088; Hearing Exhibit A-101. 309. The last significant changes to the design of the relieving angles occurred on November 15, 1991. Using this date, and computing the scheduled time for preparation of perimeter steel shop drawings and then for fabrication of that steel, Mr. Coppi forecasted that the steel should have been on-site on February 3, 1992. Transcript at 1087. 310. A substantial portion of the east side steel was not approved by Vitetta for fabrication until January 15, 1992, or later. This included portions of derricks 13, 16, 30, and 32, all of which were located just above derricks 1 and 24. Hearing Exhibits R-26, R-85. 311. Completion of concrete work restrained the start of steel erection, but steel erection was already impacted by the shop drawing approval process and fabrication delays to perimeter steel. Transcript at 1086-88, 4465; Hearing Exhibit A-101. The February 3, 1992, adjusted start date for structural steel erection is sixty-seven days later than the expected start date of November 28. Mr. Coppi assigned responsibility for this delay as follows: 1) eight days attributable to weather; and 2) fifty- nine days of concurrent delay because GSA's delay in the shop drawing approval process and resultant delay in fabrication and delivery of steel to the site occurred at the same time as SAE's delay in competing the concrete work upon which the steel was to be erected. Based on the sixty-seven days of delay identified here, the adjusted completion date would have been September 23, 1993. Transcript at 1085-88; Hearing Exhibit A-101. 312. Impact II(b), as described on Chart 3, quantifies additional delay to the project based on SAE's late completion of the second level concrete deck work. Structural steel work still could not be erected because of the failure to complete the second-level concrete work. Structural steel work actually commenced on February 19, 1992, some sixteen days later than it could have in the absence of delay for which SAE concedes it was responsible. Absent any further delays, this additional delay period would have extended project completion to October 9, 1993. Transcript at 1089-91; Hearing Exhibit A-101. East Concrete Slab on Deck Delay 313. Impact III, as summarized on Mr. Coppi's chart 4, quantifies SAE's delay in performing the east-side concrete slab- on-deck at floors 2 through 7. This work should have occurred between March 2 and April 12, 1992, under the as-planned schedule adjustments made as part of Mr. Coppi's analysis. SAE did not complete this work until May 12, 1992, thirty days later than the adjusted, as-planned finish date, which extended the project completion date by thirty days -- twenty-seven from delay to the concrete work and three attributed by Mr. Coppi to weather. After impact III, the total critical path delay was 147 days, extending the project completion date from the originally scheduled date of June 14, 1993, to November 8, 1993. Transcript at 1090-92, 1097; Hearing Exhibit A-101. Exterior Facade Issues Limestone Selection and Attachment Systems 314. Impact IV(a), as described on chart 5, quantifies the schedule extension caused by GSA delays related to the exterior facade selection and attachment system design. Based on contemporaneous OKA reports issued in May 1992, the project could have been ready for the installation of limestone as early as June 2, 1992. Hearing Exhibit A-566. As of that time OKA conceded that limestone fabrication and delivery were "squarely on the schedule critical path and every day of delay in getting fabrication started is probably a day of Project delay and attendant costs." Transcript at 1098-99; Hearing Exhibit A-567. In its May report, summarizing the project status as of the end of April, OKA stated that SAE and its subcontractors were ready to begin installing metal studs and masonry backup in May. Hearing Exhibit A-567. 315. In a subsequent report dated July 13, 1992, OKA acknowledged: Since the floor slabs are poured, installation of the exterior wall systems (metal stud and/or masonry backup limestone, ground face block, cast stone, etc.) could have started over two months ago on the east face of the building, except for the ten unresolved selection problems and shop drawings difficulties. As of the end of June 1992, there are still unresolved problems and difficulties to overcome. Thus, a claim for project delay has to be considered very probable. These allegations may have some merit, and SAE may be able to substantiate project delay associated with these exterior wall system problems and difficulties. Hearing Exhibit A-567. 316. As of June 2, 1992, the project was not ready for the commencement of limestone installation because the numerous delays concerning limestone issues made it apparent that the limestone would not be available on June 2, as planned. Because of this, the predecessor work to the limestone (staging, metal studs, vapor barrier and sheathing) was not pressed to meet the originally scheduled June 2 date. These tasks could and would have been completed timely if the delay to limestone had not existed but -- in Mr. Coppi's words -- there was no reason for these trades "to hurry up and wait." Transcript at 1099-1101. 317. Various submittal problems contributed to limestone delays, but the driving factor under Mr. Coppi's analysis was the late approval of the exterior limestone shop drawings. Limestone shop drawings were not approved until July 28, 1992. Given the fifteen week fabrication lead time required, limestone was not delivered to the site until November 17, 1992. This caused a 167-day delay to the project. Transcript at 1100-03; Hearing Exhibit A-101. 318. During this 167-day delay period, Mr. Coppi determined that SAE was able to accomplish thirty-four days of out-of- sequence work, mitigating the total delay to the project to 133 days. Mr. Coppi assigned the causes of the delays as follows: 1) eight days were attributed to unusual weather; 2) three days were caused by a strike; and 3) the remaining 122 days were caused by GSA delays in the limestone shop drawings approval process, extending the overall completion date to March 21, 1994, if the project had suffered no additional delays. Transcript at 1100-04; Hearing Exhibit A-101. Attachment System and Flashing Delays (IV(b)) 319. Impact IV(b), as described on appellant's chart 6, quantified the schedule extension caused by GSA delays related to the attachment system design and the problems experienced by SAE with the flashing design. The chart also quantified SAE delays required to fixing welding deficiencies in the relieving angles. Transcript at 1104; Hearing Exhibit A-101. 320. Even after limestone work began, installation delays continued, basically as a result of the more difficult flashing procedures required and the time-consuming setting procedure. Winter conditions also impacted limestone installation. The GSA- caused delays extended the duration of limestone installation by forty days, with an additional day for weather conditions. SAE accomplished six days of out-of sequence work, to reduce overall delay to thirty-five days. Transcript at 1104-07; Hearing Exhibit A-101. 321. Further delay was occurred as a result of the redesign of the setting procedures (shim placement and mortar compared to no mortar) and the flashing procedures and details. These items disrupted the critical work between January 23 and March 30, 1993. During the first portion of the setting and flashing delay period, however, SAE was concurrently delayed because welds at the relieving angles did not conform to approved shop drawings. As a result of deflection in the relieving angles, SAE was directed to remove the limestone already erected up to the second floor relieving angles; this activity caused the welding deficiencies to be revealed. SAE's as-planned duration for erection of all floors of the east elevation limestone was twenty-eight calendar days. Removal and reinstallation of limestone for two floors and the rewelding activities could have been completed by SAE in twenty-three days, or by February 15, 1993. Transcript at 1157-58. 322. The twenty-three-day concurrent delay, combined with thirty-five days of critical path delay, resulted in an overall delay to the critical path of fifty-eight days, which, under the Coppi analysis, extended the project completion date, assuming no further critical path delays, to May 18, 1994. Transcript at 1107; Hearing Exhibit A-101. Attachment System & Flashing Delays (IV(c)) 323. Impact IV(c), summarized on chart 7, quantified the schedule extension after February 15, 1993, attributable to GSA- directed limestone setting procedures and GSA's preparation of flashing design details missing from the original contract specifications and drawings. Hearing Exhibit A-101. 324. In addition to relieving angle deflection and rewelding, the progress of limestone installation was further impeded by Vitetta's shimming direction, SAE's concerns about the shimming procedures, and GSA's eventual rescission of that direction. GSA's restoration of mortar to the limestone joints, after previously deleting it, and the lack of flashing details, prevented work from proceeding until March 30, 1993, when SAE restarted limestone work on the east facade. Under the Coppi analysis, the period from February 15 until March 30 represented a day-for-day delay to the critical path of forty-three days in duration, with one day caused by weather and the other forty-two directly attributable to GSA's actions. Transcript at 1108-09; Hearing Exhibit A-101. 325. Chart 7 also showed a twenty-one-day delay to the critical path resulting from changes ordered by GSA to the work- around requirements when the SAE work-around schedule was accepted. With these changes, the overall project completion date was extended twenty-one days from June 30 to July 21, 1994. Transcript at 1108-09. The overall delay to the critical path during the period analyzed in chart 7 was sixty-four days, sixty- three of which Mr. Coppi considered to be GSA's responsibility and one of which stemmed from weather. Transcript at 1109; Hearing Exhibit A-101. Attachment System & Flashing Delays (IV(d)) 326. Chart 8 quantified impact IV(d), the schedule extension caused by delays relating to extended duration for flashing and setting work, block shortage, kicker redesign, and disrupted interior work. These delays were evaluated as of October 19, 1993, just three days before the termination for default of the contract. Transcript at 1110. 327. The setting and flashing procedures finally decided upon by GSA resulted in extra work and more difficult work than shown in the original specifications. Therefore, the durations of those activities were extended by twenty-seven days, which likewise extended the critical path of the project by twenty- seven days. Transcript at 1110-11; Hearing Exhibit A-101. 328. The kickers that support the ground-face block at the roof had to be redesigned because of an architectural design error. The redesign took place during the twenty-four-day period between August 20 and September 13, 1993. Also during that period, SAE's progress was impacted by a ground-face block shortage experienced by its masonry contractor, Contarino Brothers. These events caused a twenty-four-day period of concurrent delay to the project. Transcript at 1111; Hearing Exhibit A-101. 329. After adding four days of weather delay to the twenty- seven and twenty-four-day delay periods, the building watertight date was extended by fifty-five days, from August 25, 1993 to October 19, 1993. The project completion date slipped more than fifty-five days because the schedule problems up to October 19, 1993, led to anticipated inefficiencies in the interior finishes, which increased the their projected duration and the overall project duration by thirty-two days. Transcript at 1111-13. The anticipated project completion date at the time of SAE's termination, including the eighty-seven days of delay reflected on Chart 8, was October 16, 1994. 330. Mr. Coppi's analysis of the impact of weather on the project consisted of identification of days during an identified delay when a weather event stopped the day's work. When a weather delay was determined, that day was not charged to a particular party. Mr. Coppi did not conduct a traditional adverse weather study because preceding and overlapping delays made assigning responsibility for specific weather delay impracticable in that SAE was forced to perform many activities in different time periods than anticipated when the project was first commenced. In addition, Mr. Coppi determined that the approximately five percent of total delay possibly caused by weather would not significantly impact his conclusions. Transcript at 4447-48. Nothing in this study suggested that weather conditions were other than what would have been anticipated by a knowledgeable contractor and, therefore, worked into the schedule. 331. Under Mr. Coppi's CPM analysis, the total amount of delay experienced on the project was 489 days, extending the completion date from June 14, 1993, to October 16, 1994. All but fifty-three days of this delay was experienced prior to SAE's termination for default on October 22, 1993.[foot #] 15 Mr. Coppi attributed twenty-nine days of delay to either severe weather or strikes; 106 days of delay to concurrent delay; forty-three days of delay to causes attributable solely to SAE; and 311 days of delay to causes solely attributable to GSA. Transcript at 1113-1114; Hearing Exhibit A-101. Respondent's Schedule Analysis 332. Respondent did not perform an independent CPM analysis, but rather provided the testimony of two OKA employees to challenge the validity of SAE's CPM schedule. These witnesses were accepted as schedule experts based on experience in the construction industry primarily from the standpoint of managing construction projects for owners. Neither of these employees had day-to-day responsibilities for managing the project, although one witness, John D. Orr, was the project executive assigned to the Trenton annex. Transcript at 4127-34, 3624-31. 333. One of Mr. Orr's principal criticisms of the Coppi CPM analysis was the lack of an adverse weather study. Mr. Orr concluded that SAE's claim for twenty-six days of weather delay was based solely on the fact that work had not been performed on those days because of the weather. At the same time, it was Mr. Orr's understanding that SAE had already included a number of ----------- FOOTNOTE BEGINS --------- [foot #] 15 The prospective delays (i.e., those that were projected to impact future work to be performed by SAE) were the twenty-one days of delay based on changes to the work-around schedule shown on chart 7, and the thirty-two-day delay projected based on disrupted interior work, shown on chart 8. SAE never performed this work because of the termination. Hearing Exhibit A-101. ----------- FOOTNOTE ENDS ----------- days in its schedule for weather conditions. Transcript at 1146-47, 3984. Mr. Orr also testified that given weather conditions in the Trenton area, a contractor would normally expect to lose about twenty working days per year. The twenty- six days claimed is less than should have been factored into a reasonable working schedule. Transcript at 3987-88. Finally, it appeared to Mr. Orr that some of the claimed weather delays occurred during periods when the critical path ran through such items as structural steel shop drawings approval, the ground-face block shortage and kicker redesign, activities which would not be impacted by weather. Transcript at 3992. 334. According to Mr. Orr, who compared Mr. Coppi's as-built charts against the as-planned charts submitted by SAE during the course of the project, thirty-one of the dates represented were inaccurate. He testified that errors in these dates are significant because if the as-built data is not correct in the schedule analysis, then the projected dates will not be correct either. Transcript at 4009-23, 4658; Hearing Exhibit R-89. 335. Specifically, with respect to Mr. Coppi's chart 2, Mr. Orr disagreed with the designated date of February 3, 1992, for completion of fabrication and delivery of structural steel. Mr. Orr determined that structural steel was not delivered to the site until February 19, 1992. Transcript at 4015. 336. Mr. Orr also took issue with dates designated on chart number 4. This chart identified March 2, 1992, as the date on which east structural steel derricks 1 and 24 and shear studs were complete. According to progress photographs taken on March 2, 1992, derrick 1, on the southeast corner, was erected, but derrick 24, on the northeast corner, was not erected. Appeal File, Vol. I-A, Exhibit 4. Moreover, structural steel was not erected in the sequence shown on Mr. Coppi's chart. Rather, the south side of phase I, consisting of derricks 1, 4, 7, 10, 13, and 16, was erected first, because it was a better way to erect steel to accommodate the small footprint of the project. Transcript at 4096-97. 337. On chart 8, Mr. Coppi depicted temporary enclosure of the building at the curtain wall as completed as of October 19, 1993. According to Mr. Orr, however, SAE's schedule update, dated October 25, 1993, showed that no part of the temporary barriers for the third, fourth, fifth, sixth, and seventh floors was completed. Transcript at 4655-58; Hearing Exhibits R-112, R- 113. 338. Mr. Orr disagreed with Mr. Coppi's projected contract completion dates based on what he identified as erroneous start dates for various strings of critical activities. For example, for chart 3, he differed with SAE's date for approval of limestone, suggesting that this string of activities would have extended beyond the then-projected completion date. Transcript at 3995-97. He offered a similar analysis for beacon activities on charts 4 and 6. For chart 6, he differed with the dates for the steel roof string of activities. Transcript at 3996-4001; Hearing Exhibit R-85. Mr. Orr concluded that SAE's schedule analysis failed to accurately portray the project. Transcript at 4006. 339. Appellant reviewed OKA's report criticizing Mr. Coppi's analysis and prepared an exhibit addressing the points where OKA disagreed with the schedule analysis. In responding to OKA's criticism of the as-built data, SAE identified twenty-one occurrences where OKA agreed with Mr. Coppi's dates; twenty occurrences where OKA misunderstood Mr. Coppi's time impact analysis methodology; and nine instances in which Mr. Coppi and OKA disagreed as to the criticality of strings of activities. Hearing Exhibit A-922. GSBCA 12841 The CPM Schedule 340. The contract required SAE to provide a CPM schedule in the ADM (activity- on-arrow diagraming method) format, and to submit monthly schedule updates in the same format. Appeal File, GSBCA 12253, Exhibit 2, 0311. SAE submitted its 120-day preliminary schedule in the PDM (precedent diagram method) format instead. Finding 17. The Government informed SAE that it would accept the preliminary schedule in the PDM format but stated that the final schedule and updates were to be in the ADM format, as required under the contract. Transcript at 4344-46. 341. SAE continued to submit its proposed schedules and updates in the PDM format. At no time did SAE request a substitution permitting it to use the PDM format in its CPM schedule. Transcript at 4344-46. 342. SAE, relying on correspondence from OKA to GSA, contends that GSA agreed to accept its schedule in the PDM format, which SAE maintains is functionally equivalent to the ADM format. Hearing Exhibits A-90, A-91; Transcript at 150-53, 234- 38. In a letter dated March 24, 1992, from OKA to GSA, OKA speculated that GSA may have waived the requirement for schedules to be submitted in the ADM format. This letter also acknowledged that apparently no formal action had been taken by GSA in that regard. Hearing Exhibit A-90. A second letter from OKA to GSA, dated April 16, 1992, offered the observation that when SAE had discovered that converting its schedules from a PDM to an ADM format would be a "detailed and tedious task," SAE had requested relief. According to this letter, a GSA representative had agreed that SAE could proceed with a PDM format with the caveat that a "credit" might be required. Hearing Exhibit A-91. 343. The contracting officer testified that he had not agreed to a substitution of the PDM format for the required ADM format and that, in his view, PDM is not acceptable because it is less informative than ADM. Transcript at 4345. 344. On May 19, 1992, the contracting officer issued RFP 69, seeking a deduction from the contract price based on SAE's continued use of the PDM format and for SAE's failure to submit monthly schedule updates. In response, SAE requested an upward contract adjustment in the amount of $17,698. Hearing Exhibit R- 94, Sub-exhibit 9; Transcript at 4345-46. 345. Thereafter, the contracting officer issued unilateral modification AOG9, deducting $20,000 from SAE's contract. The deduction was broken down as follows: 1) thirteen monthly schedule updates that were not submitted as required, at an estimated additional cost of $1350 for OKA to review each update (totaling $17,550); and (2) a charge for an unapproved change in CPM format to ADM instead of PDM in the amount of $2450. The contracting officer explained that this latter charge was in the nature of "a fine." Transcript at 4345-46. 346. On July 22, 1993, SAE requested a contracting officer's decision with respect to modification AOG9, arguing that the modification should be rescinded. The contracting officer denied this request on September 29, 1993. GSBCA 12842 Cost of Additional Submittal Reviews 347. With regard to submittal reviews, the contract provided that SAE would pay the cost of review when a submittal required resubmission three or more times. Appeal File, GSBCA 12253, Exhibit 2, 01300. On December 13, 1991, the contracting officer issued modification AC10, taking a contract deduction in the amount of $3421.65 for submittal review based on this clause. Hearing Exhibit R-94, Sub-exhibit 16. 348. The basis for this modification, according to GSA, was the requirement that the Government review various SAE submittals multiple times. On May 24, 1993, the contracting officer forwarded breakdown sheets for additional multiple submittal reviews, informing SAE that another contract deduction, in the amount of $42,088.33 would be taken in the near future. Hearing Exhibit R-94, Sub-exhibit 4; Transcript at 4342-44. 349. On May 26, 1993, the contracting officer unilaterally issued modification AOD2, deducting the amount of $42,088.33 from SAE's contract price. By letter dated September 29, 1993, SAE asked the contracting officer to rescind this modification and requested a final decision. The contracting officer denied SAE's request. Hearing Exhibit R-94, Sub-exhibit 8. Discussion These consolidated appeals consist of seven docket numbers comprising numerous claims and challenges to the contracting officer's decisions and deemed denials. These dockets set forth claims as follows: GSBCA 12294 asserts a claim for $196,261 in increased costs and thirty days of delay caused by defective specifications with respect to the metal stud work. GSBCA 12523 appeals a deemed denial of SAE's claim for $2,436,519 and 319 calendar days for additional work and delays brought about by alleged design deficiencies and ambiguities relating to the building exterior, including inadequate flashing design and details, inadequate stone and masonry attachment design and details, and relieving angle deflection/design deficiencies. SAE alleges that the exterior facade of the building was the source of numerous design changes, as well as unreasonable, untimely, and confusing directives, decisions, redirectives, and reversals of decisions by GSA, including failure of the architect to provide a proper design for the attachment system of the exterior limestone veneer panels and failure to provide a proper design for the through- wall flashing for the exterior limestone veneer panels. In addition, SAE alleges that GSA failed to provide timely resolution of design problems which caused deflection and deformation of the exterior limestone veneer panel relieving angles. SAE also complained that GSA failed to ensure timely reviews of submittals and timely resolutions of submittal review problems by Vitetta. The major delays alleged were attributed to limestone shop drawing reviews; inadequate flashing design and details; relieving angle deflection/design deficiencies; limestone approval; ground-face block sample approval delays; and multiple design changes to the facade. GSBCA 12690 appeals the contracting officer's deemed denial of eighteen alleged individual constructive changes constituting a total claim for the amount of $284,708 and appropriate extensions of time to account for G o v e r n m e n t - c a u s e d delay.[foot #] 16 GSBCA 12710 appeals the contracting officer's decision to terminate for default appellant's right to proceed for failure to prosecute the work with the diligence that will ensure its completion by the time specified in the contract. GSBCA 12841 disputes a contracting officer's decision deducting the amount of $20,000 from the contract price for failure to submit monthly schedule updates of the CPM schedule and for failure to develop a CPM using the arrow diagram method as required under the contract. GSBCA 12842 disputes the contracting officer's decision deducting the amount of $42,088.33 from the contract price on the ground that SAE was liable for costs incurred for more than two reviews by Vitetta of the contractor's submittals. GSBCA 12907 constitutes an omnibus claim combining all of the prior listed delay and change claims as well as the challenge to the default termination of the contract. This claim incorporates the allegations initially asserted in GSBCA 12253, which set forth the delays and changes associated with the differing site conditions alleged in connection with the caisson installation process.[foot #] 17 Based on all of the events alleged in the complaint filed in this docket, SAE asserts that the termination for default should be overturned, that its various change and delay claims ----------- FOOTNOTE BEGINS --------- [foot #] 16 Given the scope of the default termination issues addressed in this decision, it was recognized that resolution of many of the individual subcontractor claims presented in this docket and in the consolidated claim under GSBCA 12907, which include post-termination costs, would be premature. These matters are deferred for resolution in conjunction with a termination for convenience settlement proposal. See n.1. ___ [foot #] 17 GSBCA 12253 was dismissed by agreement of the parties after it was determined that the claim had not been properly certified when presented to the Government. ----------- FOOTNOTE ENDS ----------- should be granted, and that an extension of time to the contract should be approved. In addressing these appeals, the overarching issue is the validity of the termination for default of SAE's right to proceed. SAE's claims with respect to design deficiencies, differing site conditions, approval delays, and the like, go to the heart of whether the termination was proper or whether SAE was entitled to significant time extensions that would have enabled it to complete performance in a timely manner. GSA contends that the termination for default of SAE's contract was justified because SAE failed to make sufficient progress in the performance of the contract to meet the scheduled completion date. At the time GSA terminated the contract for default, on October 22, 1993, approximately seventy percent of the work had been completed, but only five days remained to accomplish remaining contract work under extensions approved by GSA. Further, the Government argues that even if SAE could show entitlement to additional extensions of time to complete performance, it still could not have completed this project in a timely manner, and therefore the decision to terminate for default was completely justified. According to GSA, at the time of termination it had already granted substantial and generous time extensions to account for any delay reasonably attributable to the Government. Beyond these extensions, GSA argues, most, if not all, of the delays and hindrances encountered in performance were attributable solely to SAE. In particular, GSA faults what it perceives to be SAE's bidding strategy and early mismanagement of the project, and delays that the Government regards as attributable to the contractor and its subcontractors, for the lack of progress made in completion of this contract. Finally, GSA asserts that even conceding the lion's share of the delays identified by SAE, the extension to which SAE would be entitled still falls short of any date by which SAE could reasonably have completed the contract -- i.e., even if the Board were to grant all of the time extensions claimed by SAE for excusable, Government-caused, and concurrent delay, the project was still doomed to late completion. It is hornbook law that a termination for default is a drastic sanction to be imposed on a contractor only for good grounds and on the basis of solid evidence. E.g., J. D. Hedin Construction Co. v. United States, 408 F.2d 424, 431 (Ct. Cl. 1969); Foremost Mechanical Systems, Inc. v. General Services Administration, GSBCA 12335, et al., 95-1 BCA 27,382 (1994). It is the Government's burden to demonstrate, by a preponderance of the evidence, that the termination action was proper. Lisbon Contractors, Inc. v. United States, 828 F.2d 759, 765 (Fed. Cir. 1987). For a termination to be justified for failure to make sufficient progress under the default clause of the contract, the contractor's performance must be shown to have lacked such diligence that the Government could not have been assured of timely contract completion. Discount Co. v. United States, 554 F.2d 435, 441 (Ct. Cl.), cert. denied, 434 U.S. 938 (1977). The Government's burden is to show that at the time of the termination action "there was no reasonable likelihood that [the contractor] could perform the entire contract within the time remaining for contract performance." Lisbon Contractors, 828 F.2d at 765. To sustain the default termination there must be convincing proof that timely performance was beyond the contractor's reach. Once the Government has made its prima facie case showing facts that justify the default termination for a lack of timely performance, the burden shifts to the contractor to show that its failure to perform is excusable. See D.W. Sandau Dredging, ENGBCA 5812, 96-1 BCA 28,064; American International Contractors, Inc., ASBCA 39544, et al., 95-2 BCA 27,920. GSA asserts that at the time it terminated SAE's right to proceed under the contract, contract completion was scheduled for the end of October 1993, and that SAE could not possibly have completed the remaining thirty percent of the work in those few remaining days. SAE counters that it was making substantial progress under the contract and that it was entitled to significant additional extensions of time, over and above the 135 days agreed to by the Government prior to the termination decision, due to excusable and Government-caused delays to critical path work under the contract. As such, the contracting officer's decision to terminate SAE's contract for default was inappropriate under Darwin Construction Co. v. United States, 811 F.2d 593 (Fed. Cir. 1987). Moreover, SAE argues that the contracting officer exercised no independent discretion in making the termination decision, but terminated for default based on the instructions of higher level officials within GSA. Differing Site Condition GSA's position with respect to the compensable delay claim, as well as to the claim for extra work associated with the drilling of the caissons, asserted by SAE as a consequence of the differing site conditions encountered by SAE and its subcontractor ADI, is that the contract does not permit any recovery beyond the brief extension of time (fifteen days) already granted by the contracting officer for the period during which the caissons were redesigned under a stop work order and the unit price increases granted for additional drilling required. Otherwise, according to GSA, the level of work encountered by ADI, and the level of inspection that occurred, was contemplated by the contract. In particular, GSA asserts that SAE and its subcontractor could not reasonably rely on the materials and information provided under the contract, which were only "estimates" of the soil conditions that might be encountered by the contractor. SAE disagrees, maintaining that it encountered conditions during the installation of caissons that differed materially from those it was led to anticipate based on the contract documents and on which it was to formulate its bid. The Differing Site Condition clause incorporated into the contract, FAR 52.236-2, establishes two categories of compensable conditions: category I (site conditions which differ materially from those indicated in the contract) and category II (conditions which are unknown and differ materially from those generally encountered in the type of work being procured).[foot #] 18 Vega Roofing Co. v. International Boundary & Water Commission, GSBCA 13576-IBWC, 97-2 BCA 28,990; TLC Engineering & Construction v. General Services Administration, GSBCA 11057, 95-1 BCA 27,356, at 146,322. As explained below, the exculpatory language in the contract, Finding 24, does not affect recovery under this clause. In a seminal decision, also in the context of subsurface conditions, the Court of Claims made the following observations about the differing site condition clause: ----------- FOOTNOTE BEGINS --------- [foot #] 18 This clause provides as follows: (a) The Contractor shall promptly, and before the conditions are disturbed, give a written notice to the Contracting Officer of (1) subsurface or latent physical conditions at the site which differ materially from those indicated in this contract, or (2) unknown physical conditions at the site, of an unusual nature, which differ materially from those ordinarily encountered and generally recognized as inhering in work of the character provided for in the contract. (b) The Contracting Officer shall investigate the site conditions promptly after receiving the notice. If the conditions do materially so differ and cause an increase or decrease in the Contractor's cost of, or the time required for, performing any part of the work under this contract, whether or not changed as a result of the conditions, an equitable adjustment shall be made under this clause and the contract modified in writing accordingly. ----------- FOOTNOTE ENDS ----------- The purpose of the changed conditions clause is thus to take at least some of the gamble on subsurface conditions out of bidding. Bidders need not weigh the cost and ease of making their own borings against the risk of encountering an adverse subsurface, and they need not consider how large a contingency should be added to the bid to cover the risk. They will have no windfalls and no disasters. The Government benefits from more accurate bidding, without inflation for risks which may not eventuate. It pays for difficult subsurface work only when it is encountered and was not indicated in the logs. All this is long-standing, deliberately adopted procurement policy, expressed in the standard mandatory [differing site] conditions clause and enforced by the courts and the administrative authorities on many occasions. . . . Faithful execution of the policy requires that the promise in the changed conditions clause not be frustrated by an expansive concept of the duty of bidders to investigate the site. That duty, if not carefully limited, could force bidders to rely on their own investigations, lessen their reliance on logs in the contract and reintroduce the practice sought to be eradicated -- the computation of bids on the basis of the bidders' own investigations, with contingency elements often substituting for investigation. Foster Construction C.A. v. United States, 435 F.2d 873, 887 (Ct. Cl. 1970). The contractor is entitled to rely on information furnished in the contract in developing its bid and is not charged with knowledge of local conditions that it might have derived from experience in the local area or by performing an independent study. See Ball, Ball & Brosamer, Inc., IBCA 2841, 97-2 BCA 29,072; Betancourt & Gonzalez, S.E., DOT BCA 2789, 95- 1 BCA 27,455; Sierra Blanca, Inc., ASBCA 34848, et al., 91-2 BCA 23,990. The prospective contractor is not expected to conduct an extensive independent investigation of the site to verify information provided in the bid documents. Mann Construction, AGBCA 76-109, 80-2 BCA 14,674. The changed conditions clause is intended to encourage pricing based on the information provided in the bid documents and the results of a reasonable site investigation. Where the actual conditions encountered differ from those indicated or reasonably anticipated, the contractor is entitled to recover the increased costs of the work and, if delayed, an adjustment of the required completion date. Foster Construction, 435 F.2d at 887. In the specific context of addressing reasonable contractor reliance on Government-provided boring logs, the U.S. Army Corps of Engineers Board of Contract Appeals has explained why a contractor generally should not be expected to have performed other analyses that might have caused him to question the boring logs: [I]t is not reasonable to expect a busy bidder, while preparing its bid within a short time, to undertake the detailed comparative analysis which would be necessary to uncover such latent indications. Blount Bros. Constr. Co. v. United States, 171 Ct. Cl. 478, 346 F.2d 962 (1965); J.A. Jones Constr. Co., ENG BCA 6164, 95-1 BCA 27,482. In preparing its bid, [the contractor] was not obliged to conduct a geological or other technical investigation or make expert judgments about geotechnical matters, particularly where the [Government] had already done so. Stock & Grove, Inc. v. United States, 204 Ct. Cl. 103, 493 F.2d 629 (1974); Foster Constr. C.A. v. United States, 193 Ct. Cl. 587, 435 F.2d 873 (1970); and Holloway Sand and Gravel Co., ENG BCA 4805, 89-2 BCA 21,713. D.W. Sandau Dredging, ENG BCA 5812, 96-1 BCA 28,064, at 140,156. With respect to a type I differing site condition, the United States Court of Appeals for the Federal Circuit has observed that: Success of a Type I Differing Site Conditions claim turns on the contractor's ability to demonstrate that the conditions "indicated" in the contract differ materially from those it encounters during performance. Arundel Corporation v. United States, 515 F.2d 1116, 1128 (Ct. Cl. 1975). As a threshold matter, then, this kind of Differing Site Conditions claim is dependent on what is "indicated" in the Contract. Foster Construction C.A. and Williams Brothers Company v. United States, 435 F.2d 873, 881 (Ct. Cl. 1970). A contractor cannot be eligible for an equitable adjustment for changed conditions unless the contract indicated what those conditions would supposedly be. S.T.G. Construction Co., Inc. v. United States, 157 Ct. Cl. 409, 414 (1962) . . . . There must be reasonably plain or positive indications in the bid information or contract documents what such subsurface conditions would be otherwise than actually found in contract performance. . . . Pacific Alaska Contractors, Inc. v. United States, 436 F.2d 461, 469 (Ct. Cl. 1971). P.J. Maffei Building Wrecking Corp. v. United States, 732 F.2d 913, 916 (Fed. Cir. 1984); accord Holloway Construction Co., ENG BCA 4805, 89-2 BCA 21,713, at 109,183, quoting J.A. Laporte, Inc., ENG BCA 5252, 88-3 BCA 20,953 ("In essence, the underlying issue in a Type I claim is whether the contractor could reasonably have anticipated the conditions encountered from indications in the contract documents, its inspection of the site, and its general experience as a contractor."). The contractor is not expected to have the knowledge of a geotechnical expert or trained geologist, but need only have the expertise reasonably imputed to an experienced contractor. Finally, the contractor must show both that conditions differed materially from those that reasonably could have been foreseen under the contract and that it relied on the contract indications. Id.[foot #] 19 ----------- FOOTNOTE BEGINS --------- [foot #] 19 More specifically, to prevail on a Type I differing site conditions claim, the contractor must show six elements: (i) the contract documents must have affirmatively indicated or represented the subsurface conditions which form the basis of the [contractor's] claim; (ii) the contractor must have acted as a reasonably prudent contractor in interpreting the contract documents; (iii) the contractor must have reasonably relied on the __________ indications of subsurface conditions in the contract; (iv) the subsurface conditions actually encountered, within the contract site area, must have differed materially from the subsurface __________ conditions indicated in the same contract area; (v) the actual subsurface conditions encountered must have been (continued...) ----------- FOOTNOTE ENDS ----------- SAE asserts that the contract documents in fact did indicate what conditions the contractor might reasonably expect. The project documents contained considerable information, including design details, drawings, and specific geologic information and tests, as to the subsurface conditions that the successful bidder could expect in drilling and installing caissons. The contract documents consisted of specification section 02380, Appendix A- Geotechnical Data, and drawings 9-S-1, 9-S-2, 9-S-13. The contract drawings showed estimated bottom elevations. The Geotechnical Report showed that the deeper bedrock surface occurred 24 to 33 feet below the existing surface, and that the "deeper hard bedrock would be suitable for small-diameter drilled-in caissons. . . ." The boring logs indicated auger refusal on "Precambrian 'undifferentiated' hard bedrock," "Precambrian 'undifferentiated' bedrock," and "[h]ard fractured Precambrian 'undifferentiated' biotitel feldspar Gneiss bedrock of fair quality," Finding 27, and that the depth of auger refusal and start of bedrock would occur between 24 to 33 feet below the existing surface, with the majority of auger refusals occurring between 28 and 33 feet. Finding 28. Moreover, the solicitation established the basis for pricing this element of the contract. Finding 26. SAE and ADI bid accordingly. Findings 31, 37. Based on the drawings, specifications, and geotechnical information provided in the bid documents, SAE and its subcontractor expected that drilling for the caissons would be through overburden soil, gravel, and decomposed rock, to a firm, 60 tsf bedrock bottom approximately 32 feet below the existing ground surface at elevation 103. This conclusion was predicated on contract drawings showing that the bottom caisson occurred at approximately the same elevation as the boring logs and the Geotechnical Report's indications that hard bedrock would be encountered at 30 to 32 feet below the existing ground surface. A comparison of the borings, consistent with the bedrock surface elevation, and the planned caisson bottom elevations shown on the contract drawings, showed that the two were congruent. SAE and ADI correlated the caisson bottom elevation from the drawings ----------- FOOTNOTE BEGINS --------- [foot #] 19 (...continued) reasonably unforeseeable; and (vi) the contractor's claimed excess cost must be shown to be solely attributable to the materially different subsurface conditions within the contract site. ________________________ Weeks Dredging & Contracting, Inc. v. United States, 13 Cl. Ct. ----------- FOOTNOTE BEGINS --------- 193, 218 (1987), aff'd, 861 F.2d 728 (Fed. Cir. 1988); Youngdale _____ _________ & Sons Construction Co. v. United States, 27 Fed. Cl. 516, 530-37 ________________________________________ (1993). ----------- FOOTNOTE ENDS ----------- with the boring logs and found the bottom elevation to be approximately six inches below the borings' indication of the top of bedrock. ADI relied upon this information in pricing the caisson work. ADI anticipated that its power driven, 80,000-pound caisson drill rig would have little difficulty in drilling through the gravel-like materials overlaying bedrock and then drilling six inches into the hard bedrock shown in the contract documents. Finding 38. Based on the materials provided to bidders, ADI estimated that it could drill caissons at a production rate of four or five per day. Once performance commenced, it became clear that this would not be the case. Indeed, as OKA's project manager observed, the rock conditions slowed caisson production from "three or four per day to one or two per day and sometimes less." Finding 64. SAE further argues that the modifications to the contract to redesign the sockets and reimburse SAE for additional drilling implicitly recognize that the contractor had encountered a differing site condition. GSA's consultant, Mellick-Tully, retained after initial attempts to drill as directed under the contract were unsuccessful, determined that the underlying premise that 60 tsf could readily be reached by the caisson driller was faulty. Statements in the geotechnical documents themselves to the effect that the architect had relied on the boring logs and other data and that GSA was providing the geotechnical data and boring logs in order that the contractor would have the same information as was available to the Government and the architect, support SAE's reasonable conclusion that it was expected to rely on this information in submitting its bid. The impact of the subsurface conditions on the caisson installation process and on the progress of construction was almost immediate. In the first two holes ADI drilled, it encountered unexpected conditions at the bedrock strata that had been indicated in the contract as capable of providing 60 tsf bearing capacity. In response to this, GSA lowered the specified bearing capacity from 60 tsf to 25 tsf and redesigned 13 of 85 caissons. When performance resumed, ADI once again encountered unexpected subsurface conditions. These included variable and jagged rock. After it resumed drilling, ADI continued to encounter frequent variations in the rock conditions on a hole-by-hole basis. The facts of record and Dr. Tamaro's credible expert testimony, Findings 80 to 97, support SAE's contention that the conditions encountered by appellant and ADI represent the classic type I differing site condition described in the clause and in Foster Construction. SAE and ADI could not reasonably have deduced from a review of the contract documents and a site investigation that the unusual drilling conditions that materialized were present or might be present. ADI expected to install at least four caissons per day.[foot #] 20 This plan was not unrealistic based on the information provided to bidders. Indeed, OKA's contemporaneous observation similarly recognized that the caisson subcontractor should have been able to drill and install three to four caissons a day under the conditions contemplated under the contract. Finding 64. The unusually difficult and adverse soil and rock conditions present, which the contractor had no cause to anticipate or plan for given the information available, precluded ADI from achieving through usual equipment operations its reasonably intended output of approximately four caissons per day. As such, we find that SAE has met its burden to demonstrate that the rock drilling conditions encountered at the Trenton site constituted a type I differing site condition entitling it to an equitable adjustment accounting for increased costs and schedule impact. In addition to the increased costs of drilling and installing the caissons themselves, SAE also contends that GSA implemented substantially more rigorous inspection procedures than would reasonably have been planned for by the contractor in the bidding process. It is SAE's position that the contract documents made the contractor responsible in the first instance for the caisson inspection and certification process and provided that GSA would only perform quality assurance checks on caissons. This view is not entirely consistent with express contract language permitting GSA to perform its own inspections. Finding 43. Mr. Tamaro testified, however, that, based on his reading of the contract provisions and his experience with this general type of construction work, the contractor would reasonably expect the owner's quality assurance inspector to monitor the first several caissons to ensure that the contractor's quality control process was being performed properly and would then relinquish direct control over the inspection process to the contractor's inspector. Finding 89. The scope of work provided by OKA to its inspector, Dames & Moore, also recognized the expectation that inspection would occur for only the first few caissons to establish the standards for an acceptable caisson bottom. Hearing Exhibit A-262. After ADI remobilized in late July 1991, and encountered extremely variable rock conditions, GSA's inspection process was substantially more extensive and time consuming than the process described as usual by Mr. Tamaro and originally envisioned under the OKA scope of work. At least two, and sometimes three, GSA inspectors entered every caisson hole to inspect the caisson bottom. On some occasions, these team inspections were repeated multiple times on each caisson. We ----------- FOOTNOTE BEGINS --------- [foot #] 20 See Finding 34. Despite the testimony of SAE, ___ we view as more credible the testimony of ADI, which was to perform the work. We thus adopt the lower number (four per day) as the level of production that the subcontractor might reasonably have expected to achieve had the subsurface conditions indicated in the Geotechnical Report been genuinely representative of the actual conditions encountered. ----------- FOOTNOTE ENDS ----------- conclude that the additional inspections, although permitted by the contract, were made necessary by the differing site conditions, and, hence, related additional costs are compensable under that clause. SAE also presented evidence, through its expert witness, that the inspection process employed by GSA resulted in effectively requiring the contractor to drill deeper to reach rock of higher quality than was actually required under the contract as modified. That is, the inspectors required ADI to drill until it reached "hard ringing rock" -- a level where the entire bottom and sides of the caisson consisted of hard, sound rock. In essence the GSA inspectors required ADI to reach 40 to 60 tsf rock, as opposed to the 25 tsf rock specified. Findings 92-95. GSA's argument that the exculpatory language in the specifications serves to exempt the Government from any responsibility for increased costs or schedule impact caused by the radically different subsurface conditions encountered by the contractor is unconvincing. First, reading the contract documents as a whole, it is clear that the Government intended the contractor to rely on the subsurface data and boring logs provided. See Findings 21, 23. In addition, the courts and this Board have expressly recognized that the results of test borings are "considered the most reliable reflection of subsurface conditions." United Contractors v. United States, 368 F.2d 585, 597 (1966); accord Cherry Hill Construction, Inc. v. General Services Administration, GSBCA 11217, 92-3 BCA 25,179. Our appellate authority has also recognized that "[p]articular protection is given by courts to the right of bidders to rely upon drill hole data in the Contract." Foster Construction, 435 F.2d at 888. Although a contractor may have a duty to inspect the site, in this case, it is undisputed that a site inspection was in fact performed and could have shed no additional light on subsurface conditions given that the site was a paved parking lot. Finding 33. This Board has thus recognized that: Consequently, broad exculpatory clauses, like the ones included in this Contract, "cannot be given their full literal reach and 'do not relieve the defendant of liability for changed conditions as the broad language thereof would seem to indicate.'" United Contractors, 368 F.2d at 598 (quoting Fehlhaber Corp. v. United States, 138 Ct. Cl. 571, 584, 151 F. Supp. 817, 825, cert. denied, 355 U.S. 877 (1957)). In other words, the Government cannot provide boring logs, so that bids can be based on them, and at the same time disclaim the validity of those logs. To do so would be to render the differing site conditions clause meaningless, as to "type I" claims, by eliminating the standard from which conditions may be found to be at variance. The reading given by the Court of Claims to the exculpatory clauses, when placed in the same contract with boring logs and a differing site conditions clause, is the only one which gives meaning to all of these provisions. Cherry Hill Construction, 92-3 BCA at 125,476; see also P. J. Dick, Inc. v. General Services Administration, GSBCA 12036, et al., 94-3 BCA 27,073. In Cherry Hill Construction, the Board also observed that "[a] pattern of test holes across the site, such as was found here, is considered to be reasonably representative of the site as an entirety." The Geotechnical Report provided by GSA to prospective bidders on the Trenton project similarly provided a range of test borings indicating a particular type of condition that the contractor could expect to encounter. These were not the conditions encountered when construction commenced, however. In addition to demonstrating that it meets the criteria for proving a type I differing site condition, SAE has also made a case for a type II differing site condition (conditions which are unknown and differ materially from those generally encountered in the type of work being procured) as well. Testimony in the record supports the conclusion that subsurface conditions at the project site were unusual, unknown, and materially different from those ordinarily encountered and generally recognized as inhering in the type of foundation support work called for under the contract. At least one other local area contractor asked to visit the project site commented that he had not previously encountered anything like what was found at the project site. Transcript at 298. Moreover, the contractors bidding for this work were not required to look beyond the evidence of a reasonable site visit and a review of the subsurface data provided in the contract. There is no duty to canvass other local contractors or to hire a geologist in preparing a bid, especially when a geological investigation has been performed and provided. As the Board has stated, "The law does not demand that [the contractor] have the knowledge of an architectural historian and ignore what the contract has told it." P.J. Dick, 94-3 BCA at 134,928. The record does not suggest that SAE or ADI knew in advance of the subsurface conditions. To conclude, the contract contained a Geotechnical Report and drawings that signified to the reasonably knowledgeable construction contractor that 60 tsf rock would be reached at approximately six inches below the top of rock. Actual conditions, however, contained geotechnical anomalies and the evidence of record shows that the conditions encountered at this site varied considerably from other Trenton area conditions. As SAE points out, if the architect, which investigated the site and designed the caisson foundation, did not detect these anomalies and varying conditions in performing its contractual obligation to investigate adjacent sites and to have a geotechnical expert conduct test borings, it is unreasonable to expect that SAE and its subcontractor should have discovered or somehow predicted that these conditions would exist prior to commencement of drilling. See Kinetic Builders Inc., ASBCA 32627, 88-2 BCA 20,657, at 104,401 (If the Government had no reason to suspect unusual conditions, "we are at a loss to see how appellant would have."). To summarize, we agree that SAE and its subcontractor have demonstrated a differing site condition that affected their ability to proceed as planned with caisson installation and impacted the schedule. In addition to requiring additional drilling, SAE has shown that its progress was hampered by the resulting inspection process. We are mindful that the contract permitted GSA to perform independent inspections over and above the certification process required of the contractor's inspector, and that the GSA inspector had the right to overrule the contractor's inspector. The testimony supports the conclusion, however, that the degree of inspection, as a result of the unanticipated subsurface conditions, was more onerous than would reasonably have been anticipated under the construction conditions described in the solicitation and added to the delay experienced by SAE. In addition to the equitable adjustment already allowed by GSA, SAE is entitled to a time extension and to whatever additional costs were occasioned as a result of the requirement that it drill to ringing rock, which Mr. Tamaro persuasively explained was tantamount to imposing a higher standard than the 25 tsf rock permitted under the modification. Structural Steel & Exterior Skin Issues SAE's most significant claim for substantial extensions of time to complete performance is founded on numerous issues arising out of the metal stud backup wall and the exterior skin design controversies. It is abundantly clear that these activities dominated the critical path of construction for a lengthy time period and that significant delays were encountered in these areas. Where the parties differ is in what caused the delays and wherein the fault lay. SAE argues that the design was deficient and that the architect, which acted for GSA, was uncooperative in reviewing submittals, responding to requests for information, explaining its design intent, and providing reasons for rejecting submittals. In addition, SAE urges that the architect improperly tried to shift to the contractor design responsibilities that it should have assumed. GSA argues that SAE and its subcontractors are principally responsible for the lengthy delays associated with this aspect of construction because of incomplete and unsatisfactory shop drawings submittals and poor construction management and practices. The building itself, with the metal stud back-up wall, represents an uncommon design approach for a public building with a complex geometric configuration. As SAE points out, construction contractors are not normally expected to re-engineer projects or perform significant design functions in the absence of express language in the contract documents alerting them to such responsibilities. Nor is the construction contractor ordinarily charged with determining the feasibility of a project. See, e.g., Clovis Heimsath & Associates, NASA BCA 180-1, 83-1 BCA 16,133. Applying this tenet, SAE argues that the Government was responsible for delays associated with such problems as line drawings of the limestone attachment system which had incomplete dimensions and sizes, and the inclusion in the contract documents of a detail with an inappropriate wall tie. SAE argues that the Government may not provide incomplete or inaccurate information and then expect the contractor to just "take it from there." 83- 1 BCA at 80,130-31. We agree, given the abundance of testimony in the record concerning the criticality of ensuring that this design would function appropriately, and the prescriptive nature of the specifications, that the contract could not fairly be construed to shift the burden of providing design details to the contractor and its subcontractors. The availability of appropriate guidance and design details from the architect was particularly necessary here given the complex geometry of the building, which, as appellant's expert explained, was not just a "vanilla" rectangular edifice. Rather, the building featured offset walls at different levels, with numerous corners producing additional windloads, complexities which ultimately were addressed by requiring placement of metal studs eight inches apart, rather than the standard 12-16-24 inches apart. Transcript at 799- 800.[foot #] 21 The metal stud wall system selected by the architect, although potentially economical, was an "unforgiving" system requiring particular care in design efforts to ensure all elements of the wall system work properly together to ensure a watertight building. Transcript at 810-11. In this case, it was particularly important to take care in designing the attachment of the brittle limestone and ground-face block veneer to the flexible metal stud back-up wall. Transcript at 813-14. The preponderance of evidence in the record supports the conclusion that the design of the building was unconventional in the context of a project that was intended to have a long life as a public building. Well before the bid documents were issued, OKA and its consultant, SSVK, expressed concerns about the ----------- FOOTNOTE BEGINS --------- [foot #] 21 This led to the claim for labor and material costs and delay asserted on behalf of Interstate for the requirement to supply many more steel studs than were depicted on the architectural drawings. Mr. Guedelhoefer noted in his testimony that while steel stud back- up walls are ordinarily more economical than masonry cavity walls, in this case significant economic advantages were vitiated by the need to space studs close together to preserve the structural integrity of the building. Transcript at 800. ----------- FOOTNOTE ENDS ----------- proposed design. We are not told how these concerns were resolved, if at all, prior to issuing the solicitation for bids to be submitted by construction contractors. After SAE received the award of the contract and proceeded with performance, GSA, in the midst of the construction process, again retained expert consultants to review and modify the design. Construction stalled pending resolution of shop drawing and other issues related to the exterior skin. Although we do not suggest that the proposed design was inherently inappropriate or incapable, as eventually modified, of satisfying the Government's needs, or even that the guidance eventually provided necessarily constituted a change to the work in all instances, we are persuaded that sufficient ambiguities and technical difficulties existed in the design documents to have given rise to many of the delays experienced in the construction process. In this regard, we find it significant that the contemporaneous documentation authored by OKA's project manager, who was not called by GSA to testify, acknowledged that many of the problems encountered in erecting the limestone exterior had given rise to at least some four to six months of delay for which the contractor could well be entitled to recover. Finding 315. These are not circumstances in which it is fair or appropriate to attribute delays to the contractor for the purpose of justifying a termination for default. In reaching this assessment, we are especially persuaded by the fact that numerous experts agreed that the building design presented potential concerns for durability and longevity if not handled properly and that the documents as provided to bidders did not fully cover all areas of concern. The desire of the contractor to obtain unequivocal guidance and direction from Vitetta was not inappropriate. As Mr. Guedelhoefer, a structural engineering expert, pointed out, if the design is faulty, the building will leak no matter how well it is constructed in accordance with the design. These concerns were undoubtedly exacerbated by GSA's November 1992 letter to all three contractors -- SAE, Vitetta, and OKA -- informing each that the Government would look to them severally and jointly for any defects in the building. As such, we find Mr. Guedelhoefer's assessment that the architect was exceptionally cautious in approving shop drawing submittals, and unusually demanding in its review of these documents, Finding 222, to be credible. The testimony of both appellant's and respondent's experts is consistent that the contract placed no design obligations on SAE with respect to metal stud or exterior wall issues.[foot #] 22 The ----------- FOOTNOTE BEGINS --------- [foot #] 22 Moreover, GSA agreed to a change order request, submitted on behalf of SAE's subcontractor, for the cost of designing the interior stone anchorage, which was virtually identical to the exterior stone anchorage specifications. (continued...) ----------- FOOTNOTE ENDS ----------- position taken by SAE, that it was entitled to substantial guidance and information from the architect, rather than the continuous stream of shop drawings rejections it received, is supported by the eventual actions of GSA and Vitetta in supplying the requested design details. See Big Chief Drilling Co. v. United States, 26 Cl. Ct. 1276 (1992); McNally Industries, Inc., ASBCA 43027, 93-3 BCA 26,130. Moreover, a review of the relevant specifications and drawings in the context of this contract suggests that the principal disputed requirements -- the limestone attachment system, the flashing details, and the metal stud back-up wall -- constituted design, not performance, specifications: The specifications, which were prepared by the defendant, are a classic example of "design" specifications, and not "performance" specifications. In other words, in these specifications, the defendant set forth in precise detail the materials to be employed and the manner in which the work was to be performed, and plaintiff was not privileged to deviate therefrom, but was required to follow them as one would a road map. In contrast, typical "performance" type specifications set forth an objective or standard to be achieved, and the successful bidder is expected to exercise his ingenuity in achieving the objective or standard of performance, selecting the means and assuming a corresponding responsibility for that selection. J.L. Simmons, Inc. v. United States, 412 F.2d 1360, 1362 (Ct. Cl. 1969). This conclusion is bolstered by the fact that, midstream in the construction process, GSA retained an outside consultant, WJE, to review the design. That consultant recommended many changes to the design.[foot #] 23 Regardless of the ----------- FOOTNOTE BEGINS --------- [foot #] 22 (...continued) Transcript at 1187-88, 1190-91. As SAE suggests, this supports its position that the contractor was not charged with design functions of this nature under the contract. [foot #] 23 GSA, in defending Vitetta's actions, makes much of the fact that SAE was instructed by Vitetta to install hard mortar joints, was then instructed to follow the caulking procedure recommended by WJE, and then, after the incidence of deflecting relieving angles, was told to return to the approach initially designed by Vitetta. This point does not detract from the fact that the contractor, faced with an unusual design, was (continued...) ----------- FOOTNOTE ENDS ----------- reasons for the design changes, these events clearly contributed to delays and increased costs experienced by the contractor. SAE is not required to demonstrate that omissions and ambiguities in or revisions to the design documents were the fault of GSA or that GSA, through its architect, possessed greater expertise in masonry attachment and flashing installation. It is sufficient to show that the design lacked adequate information to enable the contractor to construct the building, that the Government and the architect did not timely provide needed information, and that these circumstances contributed to delay in the project. Lewis- Nicholson, Inc. v. United States, 550 F.2d 26 (Ct. Cl. 1977); J.L. Simmons Co. v. United States, 412 F.2d 1360 (Ct. Cl. 1969); St. Thomas Enterprises, ASBCA 38069, 92-3 BCA 25,142; Hobbs Construction & Development, Inc., ASBCA 30432, 32151, 91-2 BCA 24,014. SAE has met this burden through the testimony of its expert, its on-site project personnel, and its subcontractors, as well as through documentary evidence such as the reports issued by the consultants retained by GSA. We note, however, that in pricing changed and added work in the next phase of this case -- resolution of quantum issues under a termination for convenience -- the parties should consider the obligation of the contractor to price its proposal to accomplish the complicated design depicted in the architectural drawings. Insufficient Detail in Design Drawings One of the major areas of disagreement occurred with the limestone for the project and the attachment system to be used to connect the exterior veneer to the metal stud back-up wall. SAE asserts that the drawings as to these features were incomplete, and in some instances contained no details of dimension and size; others contained misleading information, and, in some cases, were generally inadequate to the point that SAE was hampered in completing shop drawings that would be approved by Vitetta. Without the information it needed, and the architect's approval of the drawings, SAE was not in a position to fabricate the limestone and construct the exterior veneer of the building. Specifically, in the view of SAE and its masonry subcontractor, dimensional information concerning the size, length, depth, and diameter of limestone, and information concerning the tie anchor that appeared unsuitable for use with the specified veneer panels, were items that required engineering judgment and were not properly within the ability of a contractor to provide. The submittal process, from SAE's standpoint, turned the contractor's preparation of shop drawings into a guessing game, where the ----------- FOOTNOTE BEGINS --------- [foot #] 23 (...continued) not at fault for the technical issues that arose in connection with the exterior skin. The testimony supports the conclusion that SAE tried hard to work with OKA, GSA, and Vitetta, despite the difficulties in obtaining timely, definitive guidance as to how these parties wished the building to be constructed. ----------- FOOTNOTE ENDS ----------- contractor was forced to propose an approach with no clear indication of what the architect's design intent actually was. Although we agree that SAE had a basis to seek clarification and guidance with respect to the attachment system, we also understand GSA's position as explained by the architect. Vitetta specified a specific system for limestone attachment. Lepore sought to substitute another system based on its judgment as an experienced masonry construction contractor. This appears to have been a well-intentioned request, made for the purpose of easing and enhancing the construction process. Although SAE and its subcontractor adamantly assert that the specifications and drawings for the attachment system were defective, GSA's witnesses just as staunchly argue that the proposed system, although requiring more precision of the contractor, was a valid design approach, which was not defective. There was no obligation for the Government to accept Lepore's substitute. Thus, GSA contends that the delay and cost associated with the back and forth review process with respect to submittals should be chargeable entirely to SAE. We disagree. SAE has shown that the drawings were not entirely clear -- based on its subcontractor's extensive masonry construction experience the specified tie did not appear to be suitable for the particular veneer to be installed.[foot #] 24 Although the architect was certainly entitled to require SAE to install the anchorage system it specified, and had no obligation to agree to the less stringent alternative approach proposed by Lepore, the main reason for the proposed modification to the anchorage system was to cure the ambiguity inherent in the drawings provided by Vitetta. The resolution of the type of tie anchor required by the architect was essential for construction to proceed. In addition to the proposed alternative approach, SAE and its subcontractor repeatedly asked Vitetta to clarify what anchor was intended by the reference to "tie no. 1" on drawing A39. Delay resulting from time required to clarify the architect's intent is not the fault of SAE. Taking into account the contract documents and specifications as a whole, we cannot subscribe to GSA's argument that the design responsibility for the tie anchor system for the exterior veneer and for the flashing installation was shifted to the contractor. SAE similarly requested, but did not timely receive, clarification on how Vitetta wanted flashing configured and ----------- FOOTNOTE BEGINS --------- [foot #] 24 The evidence of record contains conflicting statements from the architect as to what was intended with regard to the tie referenced on drawing A39. The incorporation by reference into the contract documents of literature that a contractor might be able to consult to supply missing design details does not under these circumstances suffice to transfer design responsibility to the contractor, particularly where there is no guidance in the contract as to whether the literature or the detailed design drawings would take precedence. ----------- FOOTNOTE ENDS ----------- installed at atypical wall junctions and interfaces. As stated above, the record supports the conclusion that the architect, and not the contractor, was responsible for providing clear details of the building flashing system so as to ensure that water penetrating the building's exterior does not remain there to cause deterioration and potential failure of the hardware anchoring the exterior veneer to the interior back-up wall. This was particularly critical here, with an exterior wall design potentially more subject to water penetration problems than would ordinarily occur with the standard masonry cavity design. The contract requirement that the subcontractor retained to install flashing have expertise in flashing installation did not serve to shift design responsibilities to that contractor. Read in context, it was intended to insure proper installation of flashing in accordance with the architect's instructions. With respect to flashing, SAE was for all intents and purposes in a waiting mode until the issuance of the report of Mr. Serke in March 1993.[foot #] 25 SAE contends that the contract documents unambiguously place design responsibility on the architect-engineering firm and not on the contractor. To the extent that any provisions might ----------- FOOTNOTE BEGINS --------- [foot #] 25 Although GSA, through the testimony of its architect, urged that a knowledgeable contractor should have been able to figure out, by following a manual referenced in the contract, how flashing should have been installed, this does not absolve GSA and its architect of the duty to provide clarification and direction when it is requested as it was by SAE and its subcontractor. The fact that the contract refers to flashing literature does not invalidate questions and issues raised by SAE and subcontractors. The Government has a duty to cooperate in responding to good faith requests for information and clarification of construction details. In the face of legitimate problems and concerns about the design of the exterior skin of this building, the Board is not persuaded that the purpose of SAE's questions was to create delay. See Alsace ___ ______ Industries, Inc., ASBCA 50720, 98-1 BCA 29,576. Moreover, _________________ considerable weight attaches to the fact that eventually the Government directed Vitetta to design the flashing. The evidence of record is convincing as to the unusual features of this particular design. Both Mr. Guedelhoefer and Mr. Becica conceded that the nature of the design selected required particular care by the architect and the contractor to ensure watertight construction. Here, the need for more than the usual amount of guidance from the architect and the Government was not inappropriate. As Mr. Guedelhoefer persuasively testified, in light of the complexity of this design, it was not reasonable to expect a contractor to know or "figure out" how flashing should be installed to ensure that water would be kept out of the interior of the building. The unusual nature of the design may well affect the reasonableness of the schedule and pricing for the quantum phase of this matter. ----------- FOOTNOTE ENDS ----------- be deemed ambiguous, however, SAE points out that its interpretations are as reasonable as any posited by GSA, and that, where a contract permits of more than one reasonable interpretation, it must be construed against the drafter and in favor of the contractor. E.g., Occupacia Corp., ENG BCA 5382, 88-2 BCA 20,820. GSA did not provide any evidence showing that SAE's interpretation of the contract requirements with regard to the exterior wall system was unreasonable. At best, for example, with respect to flashing, GSA's expert suggested that it was possible to interpret the documents to state a performance, rather than prescriptive design intent. This does not serve to advance GSA's position, however, since it shows only that more than one reasonable interpretation might be had of contract specifications. In such circumstances, the contractor's reasonable interpretation prevails. E.g., WPC Enterprises, Inc. v. United States, 323 F.2d 874, 876-77 (Ct. Cl. 1963). At best, GSA and its architect-engineer issued design specifications that contained insufficient information to estimate the labor and materials necessary to complete the job. The contractor was not required to be able, under the pressure of submitting a fixed price bid in a relatively short time frame, to discern that the drawings lacked details such as the flashing design at atypical locations that would be needed to construct the building. Similarly, architectural drawings depicting metal studs uniformly spaced at sixteen inches apart are claimed to have misled SAE and its subcontractor, who maintain they could not have anticipated that studs would have to be placed much closer together in corner locations to ensure adequate resistance to wind loads.[foot #] 26 Much less could the contractor have determined that it would be expected to supply this missing information. SAE argues that these are not the types of obvious discrepancies that a contractor is required to bring to the attention of the Government. See Blount Brothers ----------- FOOTNOTE BEGINS --------- [foot #] 26 Notably, SAE points out, in the bidding process, OKA brought to GSA's attention the fact that while some bidders had recognized the possibility that additional metal studs might be required at the corners, others (including SAE) had simply followed the contract drawings in estimating needed materials and labor. Although GSA realized that varying interpretations had been arrived at by contractors, it undertook no effort to clarify its intent. SAE argues that where GSA fully knew of the conflicting interpretations, it had an obligation to disclose the design intent to put all bidders on an equal footing. Instead, it took advantage of the situation to obtain lower prices. Thus, even if the contractor, through a careful reading of the specifications, should have been on notice that studs might have to be placed closed together at certain locations, the Government's failure to rectify the confusion in the face of "superior knowledge" still permits contractor recovery. Helene ______ Curtis Industries, Inc. v. United States, 312 F.2d 774 (Ct. Cl. _________________________________________ 1963). ----------- FOOTNOTE ENDS ----------- Construction v. United States, 346 F.2d 962, 972-73 (Ct. Cl. 1965). SAE also points out that the principles enunciated in WPC Enterprises and in Blount Brothers are particularly applicable to the misleading nature of the specifications and drawings for the metal stud back-up wall system. SAE and its subcontractor assumed that these drawings, which depicted spacing of studs at sixteen inches even at windows and corners, were designed to the deflection formulae stated in the specifications. The Government, for its part, argues that the contract required the contractor to perform design responsibilities to the extent necessary to ensure proper construction in accordance with the architect's deflection criteria. Nowhere did the specifications specifically state that despite what was shown in the drawings, metal studs at the windows and corners would need to be spaced significantly closer together than the sixteen inches shown uniformly throughout in the drawings. The "Specifications and Drawings" clause of the contract, however, stated that the words "as shown on the drawings" were to be construed to mean the extent or scope of the work shown on the drawings. Given that SAE's interpretation of this requirement was consistent with this language, and that the Government could have avoided this situation by clarifying the solicitation when it became aware that bidders were construing the requirements differently, SAE is entitled to recover for added work and delay associated with this specification. CPM Methodology Under the contract, SAE was required to employ a CPM methodology for scheduling work and reporting on progress to the work. The underlying intent and value of the CPM in evaluating contract progress has been explained aptly by the Court of Claims: [T]he 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. These latter items of work are on the "critical path." A delay, or acceleration, of work along the critical path will affect the entire project. Haney v. United States, 676 F.2d 584, 595 (Ct. Cl. 1982); Fortec Constructors v. United States, 8 Cl. Ct. 490 (1985), aff'd, 804 F.2d 141 (Fed Cir. 1986); Maron Construction Co. v. General Services Administration, GSBCA 13625, 98-1 BCA 29,685. In Norair Engineering Corp., ENG BCA 3804, et al., 90-1 BCA 22,327, at 112,204, the board observed that "the device of comparing the as-built progress with the original planning is a worthy and time-honored method of identifying critical delays." This is the type of analysis offered by Mr. Coppi, who in preparing his CPM schedule analysis compared SAE's baseline schedule with a detailed, comprehensive as-built schedule reflecting actual dates and durations of construction activities. In particular, Mr. Coppi produced his as-built record by determining all construction activities performed each day on the project through October 22, 1993. The baseline schedule used by Mr. Coppi was SAE's TRBL schedule, revised to incorporate OKA's comments with respect to certain logic and duration changes. We find that this baseline schedule was reasonable. Mr. Coppi then analyzed project events, evaluating their interrelationships and their causes, to identify and quantify the delays to the project through October 22, 1993. Mr. Coppi then incorporated into the baseline schedule the impact of each critical delay event so that he could evaluate each successive delay against the as-planned schedule adjusted to take into account the actual status of the project and the remaining work. This approach has been recognized to be appropriate: A contractor's initial network analysis is not cast in bronze; it is constantly changing; that is the advantage of the critical path method of scheduling. The impact of each change, or delay, on the previously charted sequences must be fitted into the network. The effect may be far- reaching. Activities which were not critical prior to the new event may be rendered critical; and conversely, formerly critical activities may develop float. Whether the change or delay affects the critical path must be determined on the basis of conditions existing immediately prior to its occurrence. Norair, 90-1 BCA at 112,205. It is clear that certain activities in this construction project were necessarily on the critical path and that delays to these activities would necessarily affect the completion date of the project. In particular, these include excavation of the site and completion of the foundation work (caissons and concrete), structural steel, and exterior skin. This approach, subscribed to by Mr. Coppi, comports with the logic of the milestone events prescribed in the contract itself. Finding 16. Where the parties and the experts differ is in ascribing the basis and responsibility for delays associated with the completion of these activities. Although it did not develop its own CPM schedule to rebut that prepared by Mr. Coppi, GSA, through its construction manager, OKA, offered its differing assessment of the causes of delay experienced on the project. In particular, GSA argues that the lion's share of delay experienced was principally attributable to SAE's mismanagement of the project and to SAE- caused delay in approval of curtain wall shop drawings, and then manufacture and installation of the beacon. In support of its position that SAE mismanaged the project, GSA points to the change in the project management team that occurred early in the project and to an internal SAE memorandum suggesting that finalization of subcontractor contracts was not occurring as rapidly as had originally been projected by SAE. GSA contends that these events -- problems with the sheeting and shoring subcontractor, SAE's mismanagement of the shop drawings submittal process, and delays in the curtain wall activities and in the roofing activities -- are the overriding delays that caused the project to be eighteen months behind the original schedule at the time of termination. These delay events, in GSA's view, were attributable solely to SAE, and were noticeably absent from SAE's CPM analysis, thereby rendering that analysis fatally flawed. SAE, in its reply brief, addresses these arguments. First, despite GSA's efforts to suggest that SAE's management of this project was faulty and that lack of progress in entering into subcontracts with the trades hampered progress on the project, there is no concrete evidence that this was the case. The change in management occurred early in the construction process and was effected principally to improve interpersonal relationships with OKA and Vitetta staff, not because the SAE employees initially overseeing the project were not competent. There is no firm evidence, either, that subcontracts were not entered into on a timely basis for the commencement of necessary construction activities as they became critical to completion. The subcontractors confirmed in their testimony that their contracts were executed in time for timely submission of shop drawings, particularly shop drawings needed to proceed with exterior wall construction. GSA also argues that the beacon activities caused much of the delay to the critical path. SAE disagrees, arguing that Vitetta's actions in holding up the shop drawings submittals for lengthy periods of time, and in returning the drawings unmarked because it could not determine that the proposed system exhibited pressure equalized features, in fact constituted Government- caused delay to the project. SAE particularly takes issue with the reasonableness of Vitetta's insistence that a Kawneer engineer attest to the pressure equalized design of the 1600 IG system. According to SAE's curtain wall expert, the question whether the 1600 IG system exhibited principles of pressure equalization could have been readily resolved by a review of the product data submitted by SAE on January 11, 1992, Transcript at 4522-36, 4552-59, and a competent design professional could in this manner have determined that the 1600 IG system was pressure equalized. At least some portion of the delay associated with the curtain wall was thus caused by the architect's failure at first to promptly apprise SAE of its concerns and later by its lack of familiarity with the principles of pressure equalization -- an area of knowledge with which SAE urges Vitetta could reasonably be expected to have some familiarity as a design professional. GSA's response to SAE's argument is that Kawneer's project manager offered varying opinions as to whether the 1600 IG system was pressure equalized. GSA thus contends that Vitetta reasonably required that an engineer perform tests and confirm that the system would meet design specifications. On balance, we conclude that each party contributed to some of the delay experienced with the process of obtaining an approved curtain wall system. A good portion of the responsibility for this particular delay, however, may be placed at SAE's door. Both parties have a duty to cooperate with each other in facilitating performance of the contract. The architect was troubled by perceived ambiguities and design substitutions in Kawneer's submissions and was entitled to seek from the contractor the information it deemed necessary to satisfy its concerns. SAE and its curtain wall subcontractor were obligated, and in the best position, to provide prompt information in response to the architect's questions regarding pressure equalization characteristics of the proposed system. The parties also differ strenuously in their view of the significance of delays encountered in the shop drawings approval process and construction process for the metal stud back-up system and the exterior skin. We have already, based on credible testimony from experts and experienced subcontractors, agreed to some extent with SAE's position that the architect's design-type specifications and drawings suffered from inadequacies and ambiguities. GSA and Vitetta, through the shop drawings submittal process, rejected submittals for failure to show compliance with the specification drafted by the architect. SAE has construed these rejections as an effort to convert certain aspects of the design to performance specifications and to require SAE and its subcontractors to provide solutions to an incomplete or unclear design. Regardless, with respect to these issues, SAE did not get the guidance it needed as quickly as it should have to enable prompt resolution of questions arising with respect to shop drawings. Although concurrent delay did occur during periods for which SAE has ascribed delay to the Government, that delay has been identified and segregated in Mr. Coppi's analyses. The Government has not presented an independent analysis credibly identifying how these activities affected the critical path or quantifying these delay periods in terms of an impact on the critical path. Absent an analysis that would enable the Board to compare the two approaches and make a reasoned judgment as to the credibility of the relative time lines presented, we are left with the significantly more persuasive approach taken by Mr. Coppi. This approach makes a credible effort to identify all types of delay and separate out the delay attributable solely to the Government from concurrent delay and delay periods solely attributable to SAE. Although GSA would have us conclude that the time required to obtain approval of a curtain wall product was the critical delay factor impacting timely completion and causing SAE to be ineligible for time extensions, this is contrary to the schedule methodology employed under the contract itself. The contract requires an analysis of whether a given delay impacts progress on the critical path of contract performance. Under this contract, delay in the curtain wall process did not impact other activities until the building reached the point where enclosure was required to achieve a sufficiently watertight state to permit interior work to proceed. As GSA itself recognizes, the building was built from the ground up. Delays to foundation work, structural steel work, and exterior skin work were the dominant factors impeding progress under the contract for much of the initial period of performance. Although GSA may be correct that once these issues were resolved the beacon and roof installation would be on the critical path, significant portions of the delay that occurred in the earlier activity strings are properly attributed to or apportioned to the Government or to excusable events. Finally, the CPM testimony for both parties suggests that there were prolonged periods where actions of both SAE and the Government concurrently delayed the project, such as when it was necessary to rebuild the exterior stonework as a result of deflection of relieving angles, which gave rise to the discovery of improper welding procedures. Where this is the case, there is no legal basis to permit SAE to recover compensation for these delay periods, or entitlement to formal time extensions that would make SAE eligible to recover indirect costs. At the same time, it would not be appropriate to permit the Government to penalize SAE for these delay periods by assessing liquidated damages and imposing a termination for default for failure to make progress. See, e.g., Cogefar-Impresit U.S.A., Inc., DOT BCA 2721, 97-2 BCA 29,188; L & H Construction Co., ASBCA 43833, 97- 1 BCA 28,766 (additional separate opinion by presiding judge). All things considered, we are persuaded that SAE has shown that it was entitled to an extension of time, accounting for Government-caused and excusable delays to the project, adequate to enable it to finish construction within an appropriately extended project completion date. The parties agree that, at the time of contract termination, the contract work was approximately seventy percent complete. Just prior to that time, higher-level management officials within GSA and SAE had been conferring to reestablish a reasonable completion schedule and to resolve outstanding claims to the extent possible. SAE's contention that by this point the vast majority of performance problems had been resolved sufficiently to allow work to continue apace is credible. Moreover, we do not agree with GSA's position that even with a substantial extension of time SAE could not possibly have completed performance in a timely manner. SAE is a large contractor and its management had recently reaffirmed its desire to cooperate with GSA and attain contract completion in a satisfactory manner. Under the circumstances, we conclude that SAE has shown that it was entitled to a sufficient time extension that, with appropriate added resources, which it certainly was in a position to provide, it could reasonably have been able to complete performance in a timely fashion had it been permitted to proceed. GSA has not sustained its burden to show that, at the time of termination, timely performance was beyond the contractor's reach -- i.e., that there was no reasonable likelihood that the contractor could achieve timely completion. At the same time, in resolving quantum issues in conjunction with the termination for convenience settlement proposal, the possibility that SAE's own actions may have required it to spend more than anticipated to complete performance within the time of the appropriately extended schedule should not be overlooked. Abuse of Contracting Officer Discretion As a final point, SAE raises the alternative argument that although GSA may have established the "bare" fact of a default by showing that as of October 23, 1993, SAE could not have completed the project by October 27, 1993, this does not suffice to establish the propriety terminating the contract for default. The contracting officer was still required to exercise the right to terminate the contract for default in a manner that constituted an appropriate exercise of discretion. The default article does not require the Government to terminate on a finding of default, but merely gives the procuring agency the discretion to do so, and that discretion must be "reasonably exercised." Darwin Construction Co. v. United States, 811 F.2d 593, 596 (Fed. Cir. 1987). Under the circumstances arising here, SAE argues, with outstanding claims for time extensions and ongoing negotiations between SAE and GSA officials to agree to a new schedule and to resolve some of the pending claims, the decision to terminate for default was an abuse of this discretion. Here, SAE argues, in addition to showing that SAE and its subcontractors were entitled to considerable time extensions based on delays to critical path activities as a result of the actions or omissions of GSA, or its architect, the facts of record demonstrate that the decision to default terminate was not an appropriate exercise of discretion by the contracting officer. In particular, SAE claims that the contracting officer simply bowed to the directive of a superior within GSA. In doing so, he discounted the opinions of independent engineering experts hired by the agency that the exterior design of the building was sufficiently flawed to require a variety of corrective measures and disregarded the view of OKA's project manger, who had daily dealings with the contractors and conditions at the site, that the exterior wall had caused some four to six months of delay to construction of the building. Finally, the contracting officer proceeded with default termination in the face of ongoing negotiations between GSA and SAE officials to reestablish an appropriate schedule and resolve existing monetary claims. GSA's response to these allegations is that the contracting officer had already issued a modification extending the contract completion date by 120 days to cover all the delays to the project. GSA also argues that SAE had not submitted appropriate time impact analyses to justify any further time extensions such that the contracting officer might have had reason to be concerned that the default termination action would not be justified. SAE's response to this is that GSA's intent that the 120-day extension of time be inclusive of all delays does not make it sufficient to actually cover all Government-caused delays to the project, and that GSA could not reasonably have believed that this extension was adequate. SAE asserts instead that the contracting officer's failure to conduct a thorough review of SAE's claims and carefully consider the likelihood that SAE might be entitled to significant further extensions of time rendered the decision to terminate for default an abuse of discretion. See L & H Construction Co., ASBCA 43833, 97-1 BCA 28,766; Walsky Construction Co., ASBCA 41541, 94-2 BCA 26,698; Kurz- Kasch, Inc., ASBCA 32486, 88-3 BCA 21,053; Executive Elevator Service, Inc., VABCA 2152, 87-2 BCA 19,849; Western Contracting Corp., ENG BCA 3835, et al., 82-1 BCA 15,486. On its face, the contracting officer's decision terminating the contract for default is terse and gives short shrift to the many pending claims filed by SAE for delay and extra work. Finding 286. Although the contracting officer testified that he visited the site a few times each month and, through updates and information provided by OKA, was familiar with the issues arising in construction, we are not persuaded that the termination decision was a product of the careful assessment of the facts and circumstances contemplated by applicable regulation and the guidance in Darwin. See also D.W. Sandau Dredging, 96-1 BCA at 140,154-55, 140,162-63. As discussed above, we have concluded that the default termination was not warranted. GSBCA 12841 This Government claim asserts GSA's entitlement to make a deduction from the contract price for SAE's failure to submit its CPM analysis in the contractually required arrow-on-arrow diagram method (ADM) format. It is undisputed that SAE submitted its schedules in the precedent diagram method (PDM), rather than the ADM, format. The contracting officer testified to his opinion that the PDM format was less informative than the ADM format and thus not acceptable as a substitute. SAE's witnesses testified that the two methods are functionally equivalent and that by its conduct and that of its construction manager, GSA waived the requirement to provide schedules in the ADM format. SAE also focuses, in its reply to this claim, on GSA's contention that it failed to submit updated schedules as a practical matter. SAE points out that it in fact submitted to OKA and GSA regular updates to its as-planned schedule. On numerous occasions, OKA recognized that SAE's current schedule "was close to being approved" or was "reasonable and logical." Although SAE has persuaded us that it in fact submitted periodic schedule updates, it did not ever conform to the requirement to use the ADM format. We do not agree that OKA's review of the schedules submitted amounted to a waiver by conduct of an express contract requirement. The schedules were not, as SAE recognizes, formally approved, despite the fact that as a practical matter, and for lack of conforming schedules, they were used to proceed with construction. The Government did not waive its entitlement to require SAE to submit the CPM schedules in the specified format. To the extent GSA did agree to accept the PDM formatted schedules, it expected monetary consideration. Finding 342. What is not clear is what the proper amount of the Government's deduction should be. We have no basis for evaluating the appropriateness of the OKA estimates relied upon by the contracting officer to support the proposed deduction, and under the circumstances we see no reason to permit the assessment of an additional charge in the nature of a "fine." See Finding 345. Since we are deferring quantum to be resolved in the context of the termination for convenience settlement proposal, however, this issue may be addressed in subsequent proceedings as well. GSBCA 12842 GSA also claims entitlement to a deduction of $42,088 based on multiple submittal reviews required because of alleged deficiencies in SAE's and its subcontractor's shop drawings submittals. It is the Government's burden to establish that multiple reviews were necessary because of contractor failure to conform to contract requirements in its submissions. See Orbas & Associates, ASBCA 32922, et al., 87-3 BCA 20,051, at 101,521. The record establishes here that a substantial number of the multiple reviews that occurred were caused by design deficiencies and lack of clarity in contract documents, rather than as a result of errors reasonably attributable to SAE or its subcontractors. Multiple submissions with respect to the curtain wall and roof shop drawings do appear to be attributable to SAE, and compensable to the Government, to the extent GSA can demonstrate that it actually paid additional amounts to Vitetta to perform these extra reviews. A significant portion of this claim, however, must be rejected. The determination of any amount to which the Government may be entitled based on multiple reviews of curtain wall and roofing shop drawings is deferred for determination in connection with the termination for convenience proceedings. Decision GSBCA 12710 is GRANTED. The termination for default of SAE's contract to build the Trenton Courthouse Annex is converted to a termination for the convenience of the Government. The individual claims asserted in GSBCA 12294, GSBCA 12523, GSBCA 12690, and GSBCA 12907 are GRANTED IN PART consistent with this decision. SAE's appeals of the Government's claims asserted in GSBCA 12841 and 12842 are DENIED IN PART. The claims asserted in GSBCA 12690 and GSBCA 12907, to the extent not addressed in this decision, and quantum issues raised under GSBCA 12294, GSBCA 12523, GSBCA 12841, and GSBCA 12842, are deferred for resolution in the context of a termination for convenience settlement proposal. Accordingly, GSBCA 12294, 12523, 12690, 12841, 12842, and 12907 are DISMISSED WITHOUT PREJUDICE, subject to reinstatement, within eighteen months of the date of this decision, in connection with any subsequent proceedings concerning termination for convenience costs. Rule 127(c). _______________________________ CATHERINE B. HYATT Board Judge We concur: _________________________________ ________________________________ ANTHONY S. BORWICK JOSEPH A. VERGILIO Board Judge Board Judge