______________________ GSBCA 12951, 13520: DENIED GSBCA 13575: GRANTED IN PART August 26, 1997 ______________________ GSBCA 12951, 13520, 13575 ENVIRONMENTAL DATA CONSULTANTS, INC., Appellant, v. GENERAL SERVICES ADMINISTRATION, Respondent. James H. Chance, Operations Manager, Environmental Data Consultants, Inc., Mount Vernon, New York, appearing for Appellant. Kevin S. Anderson, Robert C. Smith, and Sharon Chen, Office of General Counsel, General Services Administration, Washington, DC, counsel for Respondent. Before Board Judges BORWICK, WILLIAMS, and VERGILIO. VERGILIO, Board Judge. Environmental Data Consultants, Inc. (EDC), the appellant, has filed these three appeals arising under a contract with the respondent, the General Services Administration. In GSBCA 12951, EDC contests the termination for default of its contract. The agency has met its burden and demonstrated the propriety of the default. EDC has failed to prove a circumstance mitigating against default. Therefore, the Board denies the appeal. In GSBCA 13520, EDC seeks additional payment for what it asserts were various changes or costs incurred due to Government-caused delay and disruption. EDC has met its burden regarding entitlement in some instances; however, in every instance, EDC has failed to meet its burden regarding quantum. Hence, the Board denies the appeal. Underlying GSBCA 13575 is an agency claim for liquidated damages, increased costs of performance, and costs incurred to remedy damages caused by EDC actions and inactions. The agency has proven its claim for liquidated damages and a portion of its claims for recovery of costs incurred to remedy EDC-caused damages and increased costs incurred to complete the work; it has failed to prove the remainder of its claims. Thus, the Board grants in part this EDC appeal. In short, the termination for default stands and the agency is entitled to recover $252,040.50 from EDC. Findings of Fact The solicitation, contract, and modifications 1. On April 1, 1992, the agency accepted the $365,993 bid of EDC, in response to a solicitation to replace fuel and lube oil tanks at a facility occupied by the Internal Revenue Service (IRS) in Holtsville, New York. Exhibit 2 (unless noted otherwise, exhibits are from the appeal file in GSBCA 12951; the cases were consolidated for purposes of developing the record, such that material accepted into the record is usable to resolve any and each of the appeals). 2. On May 16, 1992, EDC received the notice to proceed. The fixed-price contract requires that the entire work (including final cleanup of premises) be completed within 320 days after receipt of the notice to proceed. Exhibit 1 at 800-2 ( 3.01.C); Exhibit 3. Thus, the completion date was April 1, 1993. 3. By a unilateral modification signed by the contracting officer on November 10, 1992, with an effective date of November 4, 1992, the agency exercised option two under the contract, increasing the contract price by $29,100 for the removal and replacement of a concrete slab. The modification did not alter the contract performance period. Exhibit 1 at 1035-1 ( 2.01.B); Exhibit 4 (modification 3). 4. By a bilateral modification with an effective date of March 29, 1993, the contract price increased by $25,000: For all costs associated with the extended use of temporary fuel oil and temporary lube oil systems until completion of the contract work. This is a total settlement of Environmental Data Consultants Inc's (EDC) claim dated February 23, 1993 in accordance with the agreement between GSA and EDC as negotiated at the meeting of February 26, 1993 at 26 Federal Plaza. A time extension of 91 calend[a]r days is included in the above. The new contract completion date will be July 1, 1993. Exhibit 4 (modification 4). 5. A unilateral modification with an effective date of July 1, 1993, extended the contract completion date "from 7/1/93 to 8/1/93 (31 calendar days). All other terms and conditions remain the same." Exhibit 4 (modification 5). 6. By a bilateral modification with an effective date of September 14, 1993, the contract price increased by $19,960: This modification is issued to: install a plywood safety fence, provide traffic barrier, move sand berms, provide temporary barricades, provide plastic construction fence and delete 8' high chain link construction fence. . . . The work shall start 9-15-93 and the work shall be completed by 9.28.93. The time extension is 14 calendar days. New project completion date is 10.14.93. Exhibit 4 (modification 6). This time extension of fourteen days to October 14 is out of sync with the prior completion date of August 1--the completion date establishes a seventy-four day extension. 7. A bilateral modification with an effective date of September 28, 1993, increased the contract price by $498,368, and extended the time to perform by 120 calendar days, stating a revised contract completion date of February 11, 1994. The modification specifies and prices twenty items of added work and two items of deducted work. The added work includes obligating the contractor to: provide shoring and remove sheeting; excavate an additional 2,058 cubic yards of soil and store 1,611 cubic yards of soil on site as clean fill for replacement after tank installation; excavate, by specified method, approximately 629 cubic yards of contaminated soil and provide clean sand backfill for the space; provide 2,816 cubic yards of clean sand backfill, noting "final negotiations on PDL [price to be determined later] No. 1 will include only the cost of disposal for the 1600 c.y. of contaminated soil"; demolish and remove asphalt pavement, and provide asphalt pavement; load and dispose of 2,029 cubic yards of sand; change the location for re-installation of lube oil and waste oil tanks, with re-routing of piping, as required; dispose of approximately 30 cubic yards of contaminated sand at the location of lube oil and waste oil tanks, and provide 30 cubic yards of clean sand fill; and move and relocate stockpiles of contaminated soil on three occasions. Further, $21,500 is added to the contract price, with the contractor to provide six revised design drawings to reflect differing site conditions and additional requirements for obtaining permits from the local jurisdiction. Exhibit 4 (modification 7). 8. A bilateral modification with an effective date of November 30, 1993, increased the contract price by $208,000. The modification describes the work to be performed under the modification: For furnishing all labor, materials and incidentals necessary to satisfactorily incorporate into the contract work, the following additional work all in accordance with the contract plans and specifications, as applicable: To excavate, remove contaminated soil and replace with clean soil at a unit cost of $130.00 per cubic yard. Excavation of contaminated soil shall not exceed 1,600 cubic yards. Contractor will notify the Government if contaminated soil exceeds the 1,600 cubic yards in the excavation of the fuel oil tanks and piping to building. Also the lube oil tanks in the fenced area. Attached find (2 sketches) tank area (lube and fuel oil). Exhibit 4 (modification 8). The modification states that it provides a contract time extension of 243 calendar days to perform the work, with a revised contract completion date of November 30, 1993. The completion date represents an aberration from the previous and subsequent completion dates established in bilateral modifications. Findings 7, 9. The completion date is also incongruous, in that it is the same as the effective date of the modification, although the contract was not complete as of that date, or as of the date EDC signed the modification. EDC Exhibit 378. While it is true that from the original contract completion date of April 1, 1993, an additional 243 days takes one to November 30, 1993, such that the date would be consistent with the submission of a request for a proposal by EDC for the additional work, EDC Exhibits 378, 378A, the subsequent modification demonstrates that neither the completion date nor the additional number of days should be given effect. The testimony of the operations manager of EDC in attempting to explain the inconsistency is not persuasive--that is, he states that the 243 days was calculated based upon the hard winter of 1993-94, although the weather had not yet occurred at the time of the modification. Transcript at 532-34. Further, his testimony that the parties intended that the 243 days be added to the existing contract completion date is inconsistent with completion dates in a subsequently submitted EDC-proposed schedule for completion, the following modification, and other statements made by EDC in correspondence during performance. Findings 9, 14. 9. With signature dates and an effective date of April 19, 1994, bilateral modification nine simply extends the completion date "from 2/11/94 to 7/30/94 (170 calendar days)" with all other terms and conditions remaining the same. Exhibit 4 (modification 9). The modification extends the contract performance date in recognition of an EDC-proposed schedule (which utilizes the July 30, 1994, completion date), and its request for a time extension based upon various problems EDC encountered. Exhibit 233. 10. Bilateral modification twelve, with an effective date of July 13, 1994, increases the contract price by $71,804 and provides for zero days of time extension. The modification provides for payment of rental and/or maintenance of temporary fuel oil tanks of particular capacities with all appurtenances and accessories for given time periods: gallons time period 21,000 July 2, 1993, through July 29, 1994 4,000 September 22, 1992, through May 5, 1993 1,200 September 27, 1992, through February 11, 1994 275 September 27, 1992, through February 11, 1994 Exhibit 4 (modification 12). The modification also makes changes regarding pea gravel bedding and sand backfill, and the use of a crane and crew. Id. 11. Bilateral modification thirteen, with an effective date of July 13, 1994, increases the contract price by $3,865, and provides for no time extension for contract performance. The modification makes various hardware additions and deletions. Exhibit 4 (modification 13). 12. Each modification is specific as to the work it encompasses as an addition or deletion. Each modification prices individual items of work. Overhead and profit were provided for in the modifications; the record does not indicate how the overhead rate was calculated. Exhibit 281. Although with the contract modifications the contract price increased from $365,993 to $1,222,090, reviewing each modification reveals no attempt by the agency to compensate EDC directly for additional costs EDC may have incurred by the lengthened period of performance; the completion date, originally April 1, 1993, Finding 2, was extended to July 30, 1994, Finding 9. Cure notice and default 13. Although EDC and the agency entered into a bilateral modification on and effective April 19, 1994, extending the contract completion date to July 30, 1994, Finding 9, by April 29, the agency was concerned with a lack of progress by EDC, and issued a cure notice specifying particular matters for EDC to address: failure to submit shop drawings, which the agency viewed as detrimental to performance; negligence in maintaining the integrity of temporary fuel tanks and secondary containment; work without valid permits and EDC's failure to have made application for renewal; and yet to be completed punch list items. Exhibit 19. 14. By letter dated May 9, 1994, EDC responded to the cure notice. EDC states that the Government had untimely taken action upon EDC's shop drawing submittals. Further, EDC asserts that the containment areas had worked appropriately, particularly given that they were constructed to last for a shorter period than had been required by the extended performance period. Also, EDC addresses permits and the difficulties EDC contends the agency and the agency's construction quality manager (CQM) were causing. Finally, in the letter, EDC addresses the punch list items--most of which EDC contends had been completed, and a few of which required further responses or approvals by other than EDC. In conclusion, EDC states that "the government has extended this contract from its original termination date of April 1, 1993 to July 30, 1994. Without any future delays, EDC will complete the on-site work for this project by that date." Exhibit 21. 15. By letter dated June 8, 1994, the agency confirmed for EDC that on that date the agency approved as noted the most recently submitted shop drawings. As submitted, the drawings were not approved; rather, exceptions were to be resolved in the field during construction. Further, with the approval as noted, the agency authorized EDC to proceed with the project, effective immediately. GSBCA 13520, Exhibit 18. 16. The contract contains a Federal Acquisition Regulation (FAR) clause for default (fixed-price construction), FAR 52.249-10 (APR 1984). The clause provides in pertinent part: (a) If the Contractor refuses or fails to prosecute the work or any separable part, with the diligence that will insure its completion within the time specified in this contract including any extension, or fails to complete the work within this time, the Government may, by written notice to the Contractor, terminate the right to proceed with the work (or the separable part of the work) that has been delayed. In this event, the Government may take over the work and complete it by contract or otherwise, and may take possession of and use any materials, appliances, and plant on the work site necessary for completing the work. The Contractor and its sureties shall be liable for any damage to the Government resulting from the Contractor's refusal or failure to complete the work within the specified time, whether or not the Contractor's right to proceed with the work is terminated. This liability includes any increased costs incurred by the Government in completing the work. (b) The Contractor's right to proceed shall not be terminated or the Contractor charged with damages under this clause, if-- (1) The delay in completing the work arises from unforeseeable causes beyond the control and without the fault or negligence of the Contractor. Exhibit 1, GSA Form 3506 at 38 ( 98). 17. After the established date for contract completion passed, with the contract not complete, the agency issued a termination for default of the EDC contract. The letter from the contracting officer to EDC terminating the contract specifies that EDC's performance has been unsatisfactory, as evidenced by the cure notice discussed above, Finding 13. Further, the Town of Brookhaven fire marshal issued several cease and desist orders to EDC regarding the contract, in May, June, and July 1994, because EDC had failed to comply with local regulations. Moreover, based on agency records, EDC worked on site for 8« days in June and 6« days in July, evidencing a failure to make satisfactory progress. Further, an inspection of August 1 revealed that the project was not complete and that 15% of work remained to be completed. Exhibit 90. EDC alleges delays preclude default 18. Relying on the time extension of 243 days stated in modification eight, Finding 8, EDC maintains that the completion date had not passed as of the date of the termination for default. Additionally, EDC references an agreed-upon shutdown: on February 3, 1994, the agency and EDC agreed to an orderly shutdown of the site until work could resume on approximately May 1, 1994. Exhibit 228. Also, EDC contends that agency actions and inactions throughout the performance period caused delays which necessitate an extension to the contract completion date. EDC states that the actions and inactions relate to contaminated soil, shop drawings, and interferences or retaliations (requested bribes, cease and desist orders, failure to make progress payments). EDC says the agency directly or indirectly caused these delays, which did not arise by or on behalf of EDC. contaminated soil 19. The solicitation directed that the base bid shall include the removal of twenty-five cubic yards of contaminated soil and replacement with twenty-five cubic yards of approved soil. Exhibit 1 at 1010-4 ( 3.1.A). The solicitation also required, for informational purposes only, the bidder to provide a unit price for the removal of contaminated soil and its replacement, and to state the quantity of soil used for pricing. Id. at 120-5 ( 8.03), 1010-4 ( 3.1.A.1). In response, EDC quoted a price of $155 per cubic yard for the removal of contaminated soil and replacement, stating that the price is based upon twenty-five cubic yards of contaminated soil. Exhibit 2 at 3. With the submission of its bid, in January 1992, EDC had notified the agency that the extent of contamination around the existing tanks was not known and could not be determined accurately until tanks were excavated; EDC anticipated more than twenty-five cubic yards of contaminated soil. Exhibit 95 at 50002. 20. By letter dated September 24, 1992, EDC informed the agency that all work required prior to excavation was completed as of September 23, 1992, and that EDC awaits receipt of permits from the local county health department before work may proceed. Exhibit 99. On October 26, EDC obtained the necessary permits. Exhibit 303 at 21027, 21028; Agency Exhibit 1 at 4. 21. EDC's operations manager testified that at the time of bid preparation he was aware of extensive contamination; yet, he anticipated contract completion by September 21, 1992. EDC Exhibit 14; Transcript at 381-82. He was unable to support this date as a reasonable date for completion, particularly in light of the lack of permits until October 26 and the actual completion of pre- excavation work on September 23. Finding 20. 22. By October 28, 1992, EDC had begun excavation and determined that soil contamination was more extensive than it had predicted (both in January, Finding 19, and in July after an inspection, EDC Exhibit 32). EDC informed the agency that a large change order would be required. Exhibit 104. 23. The agency had the soil examined to determine the extent and type of contamination--such information would affect how to proceed. In a letter dated January 11, 1993, the contracting officer directed EDC to proceed immediately with work described in EDC's request for proposal one (that is, the excavation and removal of contaminated soil and its replacement), not to exceed 50% of the quoted price of $208,000 or $130 per cubic yard--the agency requested a detailed proposal with the expectation that within 120 days pricing could be resolved and a modification executed. Exhibit 309 at 21264. 24. The contract modification for the removal of contaminated soil, and its replacement, did not become effective until November 30, 1993. Finding 8. However, the lack of a modification did not delay the excavation and removal of the soil, given the direction by the agency to proceed in January 1993. 25. Disputes arose regarding portions of the excavated soil-- whether soil was capable of being used as on-site fill. The agency had the soil tested. Exhibit 309 at 23446. Testing conducted on behalf of the agency revealed results which enabled the soil to be used as fill. Exhibits 206, 220, 312 at 50132; Transcript at 342, 463-64, 923. EDC continues to dispute the testing methodologies and the validity of the results. Transcript at 653-54. The record does not lead the Board to conclude that EDC's contentions are correct. That is, the Board does not conclude that the test results relied upon by the agency were invalid. To any extent that EDC may have delayed performance because it had concluded that the condition of the soil precluded its use as fill, EDC has not demonstrated that the agency is at fault, or that the cause is other than EDC's mistaken conclusions. shop drawings 26. The contract required EDC to make various submittals; on each submittal EDC was required to indicate that it had reviewed the submittal and certified compliance with contract terms and conditions, but for any expressly noted exceptions. Exhibit 1 at 1300-2 to -6 ( 1.3, 1.4). EDC maintains that the agency was delinquent in returning shop drawings, and that the delay in receipt of comments and approval delayed completion in a manner beyond the control of EDC. EDC contends that in agreeing in February to a shutdown, with work to resume in May 1994 and the project to be complete by July 30, EDC assumed that shop drawings would be returned and approved well before May. What is lacking in the record is proof that any delay in the return of the shop drawings adversely affected EDC's ability to complete the project on time. Further, the defects in the drawings inculpate EDC as a cause for the delay. 27. On January 7, 1994, EDC provided shop drawings to the agency. Exhibits 21, 313 at 996. On February 3, 1994, the agency provided to the CQM shop drawings submitted by EDC. The CQM found numerous, pervasive deficiencies which merited ten or eleven pages of comments. Transcript at 280-81, 284-290, 300 (drawings depicted what would be a non-functioning system); Exhibit 310 at 25256.1 to .4, 25257-65. By February 22, the agency had a complete copy of the comments. Transcript at 290. 28. Under a cover letter dated March 10, 1994, the agency returned to EDC shop drawings marked as disapproved with the CQM's comments. On March 31, the CQM with EDC reviewed the shop drawings and comments line-by-line. Exhibit 13 (report of Apr. 1, 1994). As indicated in an EDC letter to the agency dated April 1, EDC did not understand or abide by the contract requirements that on each drawing EDC was to indicate that it had reviewed the submission and that EDC had to certify that the submission fully complied with contract requirements, or expressly note any exceptions. By letters dated April 18 and 22, the agency informed EDC that it was essential that EDC submit corrected drawings in order to obtain approval and proceed with piping and electrical installation. Exhibits 12, 19, 233, 235, 393AI. 29. After signing modification nine, agreeing to a July 30, 1994, completion date, Finding 9, by late April, EDC submitted revised shop drawings. Exhibit 22. These were not approved, but returned to EDC with comments. Many of the comments reflected the same inadequacies as in the original submission. Exhibits 22, 310 at 25256.1 to .4, 25257-65; Transcript at 307-09, 312-13. Even without approved shop drawings, in May, EDC verified July 30 as a realistic date for completion. Finding 14. 30. Revised shop drawings submitted in June 1994 again were unacceptable as submitted. Transcript at 315. On June 8, the agency deemed the drawings approved as noted, with EDC to receive the drawings with noted exceptions by June 14. Exhibits 34, 36, 38; Finding 15. 31. The agency and CQM needed time to review and comment upon the versions of shop drawings. The process was time consuming, given the pervasive inadequacies in the submissions. Comments provided basic instruction as to what was required for approvable drawings. EDC Exhibit 393U. The contract states that the agency will review and return each submittal with an action indicated within two weeks of receipt, when possible. Exhibit 1 at 1300-6 ( 1.5.A). Given the deficiencies in the drawings, and the comments placed upon them to focus the revision process, as well as the necessary coordination between the CQM and GSA, the time for processing the drawings is not unreasonably long. Even assuming that a portion of the process was unnecessarily delayed, EDC has not demonstrated how the delay adversely affected its ability to complete the project. As noted in findings which follow, lack of permits and insurance, for example, prohibited EDC from proceeding with work. Moreover, the underlying inadequacies of the shop drawings themselves were not attributable to the agency or the CQM, but rather to EDC. EDC alleges interferences preclude default 32. EDC maintains that the agency actively and impermissibly interfered with the work and progress of EDC. EDC contends that its failure to complete the project on time was not a result of improper performance by EDC, but a result of retaliation by the agency for EDC not succumbing to bribery attempts by an agency official. 33. One agency employee who served as a contracting officer's representative for a period under the EDC contract and was a mechanical engineer in the agency's design and construction division, Exhibit 309 at 22978, 23219, was arrested in July 1993 (and eventually convicted) for soliciting bribes from a different contractor, under a different contract involving work at the same site as EDC performed the defaulted contract. Upon his arrest, he was suspended from work; he no longer was involved in the EDC contract. Agency Exhibit 9A; Transcript at 1073-74. 34. EDC's operations manager had informed the contracting officer prior to the arrest that the individual had solicited a bribe from him. EDC also expressed concern regarding the involvement of others in treating EDC unfairly. Exhibit 313 at 2654. As details of the arrest (and later conviction) became known, and as EDC continued to have mounting difficulties in completing its contract, EDC accused additional agency employees of improprieties. Transcript at 1062-67. 35. Whether or not the convicted individual solicited a bribe from EDC, the Board makes its own findings of fact, based upon the developed record, and determines if agency actions were contrary to statute, regulation, or terms of the contract. Hence, because EDC alleges improprieties in various actions of, or inspired by, the agency employees, the Board looks into those factual matters. Assertions by EDC's operations manager that people were out to get him or his company must be weighed with the performance of EDC and the duty of and discretion vested in Government employees to ensure the proper completion of the contract. stop work and cease and desist orders 36. The contract requires EDC to obtain all of the necessary permits for the construction of the project. Exhibit 1 at 1300-5 ( 1.4.F). The contract also contains a FAR clause regarding permits and responsibilities, FAR 52.236-7 (APR 1984): The Contractor shall, without additional expense to the Government, be responsible for obtaining any necessary licenses and permits, and for complying with any Federal, State, and municipal laws, codes, and regulations applicable to the performance of the work. The Contractor shall also be responsible for all damages to persons or property that occur as a result of the Contractor's fault or negligence, and shall take proper safety and health precautions to protect the work, the workers, the public, and the property of others. Id., GSA Form 3506 at 2 ( 11). For contractor non-compliance with contract requirements, the agency could enter a stop-work order, under which EDC would be entitled to no additional payment or time for completion. Id. at 36 ( 96, GSAR 552.212-74 (APR 1989)). 37. Initial attempts by EDC to obtain county approval to proceed with the project were unsuccessful. By letter dated October 1, 1992, the county rejected EDC submittals because drawings did not conform to sanitary code requirements. Exhibit 102. 38. The Town of Brookhaven, exercising jurisdiction over the site, issued cease and desist orders to EDC throughout the contract. For example, by letter dated October 20, 1992, all work had to cease until various violations were corrected and the town (through the fire marshal) had inspected the corrections. Exhibit 5. The town issued a cease and desist order dated November 4, 1992, because permission had not been sought (or granted) for the replacement of underground tanks. Exhibit 6. 39. As noted in letters dated May 24 and June 4, 1993, the agency stopped EDC from performing work at the site due to specific defects or omissions described in a letter of May 21, 1993, and due to a lack of a valid schedule. Exhibit 153; EDC Exhibit 241. 40. By letter dated June 30, 1993, the town fire marshal issued a cease and desist order prohibiting work in reference to the replacement of underground tanks; EDC lacked necessary permits. Exhibit 6. 41. A cease and desist order was issued the morning of May 3, 1994, regarding the removal of contaminated soil; the town awaited receipt of an action plan which then had to be approved before work could proceed. GSBCA 13520, Exhibit 8. This order was rescinded the afternoon of the same day. Exhibits 13 (report of May 6, 1994), 249. 42. A cease and desist order was issued on June 17, 1994, because EDC had not: filed with the town a copy of EDC's insurance policy, provided a manifest for the removal of tanks and contaminated soil, and provided engineering drawings for electrical work. Exhibit 52; Transcript at 104-05. 43. By memorandum dated July 7, 1994, the agency, through the CQM, directed EDC to stop work in any area where work was proceeding at variance with approved drawings. Exhibit 66. 44. On July 13, 1994, the town revoked permission previously granted to EDC to proceed with tank installation. The basis for the revocation was EDC's failure to provide to the town proof of insurance. Exhibit 72; Transcript at 110-11. Despite requests from the town, EDC failed to provide a copy of its insurance policy. Exhibits 286, 308; Transcript at 115. 45. The record does not demonstrate that the agency caused the town to issue any cease and desist order, or that any cease and desist order or stop work order was improperly or improvidently issued. Rather, EDC had difficulties complying with or disregarded various requirements of the contract. EDC actions and inactions led to the work stoppages. payment 46. The contract specifies that the Government shall make progress payments monthly. Exhibit 1, GSA Form 3506 at 31 ( 90, FAR 52.232-5, Payment (APR 1989)). The clause dictates a prerequisite to payment: The contractor shall furnish a breakdown of the total contract price showing the amount included therein for each principal category of the work, which shall substantiate the payment amount requested in order to provide a basis for determining progress payments, in such detail as requested by the Contracting Officer. Id. 47. The contract specifies an additional procedure for EDC to obtain progress payments: Payment meetings will be held each month with the Government representative, prior to the submission of the contractor's progress payment request/invoice. The contractor shall attend the meetings. These meetings may be conducted in person or by telephone. Inspections will then be completed prior to or during the meeting, thus ensuring timely inspections. The purpose of the payment meetings is to enable the contractor and the Government representative to discuss the amount of the upcoming payment and to reach agreement on the amount thereof. The meetings will enable payments to be made promptly and within the dates established in the contract. Exhibit 1 at 800 ( 7.01(a)). The contract also requires EDC to submit a certification of progress payments with its payment request or invoice. Id. ( 7.01(c)). 48. On September 8, 1992, the CQM rejected for approval the initial EDC pre-request for payment, because it was not properly documented, especially as to labor figures. Exhibit 100. 49. EDC submitted invoice one on September 23, 1992. GSBCA 13520, Exhibit 46 (Exhibit 17A). Following discussions and assessments of work performed and materials on-site, adjustments were made to the values of various items, both branch values (the parties assigned a dollar value to discrete tasks of performance or principal categories of work, with the sum of these branch values equaling the total contract price) and the values of the work performed for those aspects of work. Of the $166,134 sought, the agency approved payment of $150,793 ($106,687 said to be for materials on-site) on October 2, 1992. Id.; Agency Exhibit 11 (voucher 1). The record indicates no impropriety in the time it took to make the payment; the record does not show that EDC was underpaid for work completed or materials on-site, based upon its submissions. 50. EDC submitted invoice two on November 9, 1992, for $35,500, with $0 identified as the value of materials on the contract. GSBCA 13520, Exhibit 46 (Exhibit 17B). Following discussions and assessments of work performed, EDC submitted an amended invoice two, seeking $35,000. On November 25, 1992, the agency approved payment in this amount. Agency Exhibit 11 (voucher 2). The record indicates no impropriety in the time it took to make the payment or in the amount of the payment. 51. By letter dated January 14, 1993, in response to EDC inquiries, the contracting officer informed EDC that she would not authorize additional payment for particular materials on-site until there is more work in place. Exhibit 309 at 21297. 52. On February 24, 1993, the agency received from EDC invoice three, seeking $56,490 for the disposal of contaminated soil measured in weight not volume. Following discussions regarding the appropriate conversion of dollars per volume to dollars per weight, the agency approved payment on March 3, 1993, in the amount of $22,632.60. Agency Exhibit 11 (voucher 3); GSBCA 13520, Exhibit 46 (Exhibit 18). The record indicates no impropriety in the time it took to make the payment; the record also fails to indicate that EDC was underpaid based upon its submissions. 53. On March 31, 1993, the agency received invoice four, dated February 23, through which EDC sought payment for the disposal of contaminated soil. Its conversion of weight to volume differs from the agency's calculation. GSBCA 13520, Exhibit 46 (Exhibit 20). Also on March 31, 1993, the agency received invoice five, seeking $25,000 as payment for the extended use of temporary fuel tanks. The amount reflects a negotiated contract change. Id.; Finding 4. On April 5, 1993, the agency approved payment of $25,000. Agency Exhibit 11 (voucher 4). On April 6, 1993, the agency returned invoice four, because the submission lacked a certification of payment, Finding 47, and lacked readable copies of the loads of soil invoiced. GSBCA 13520, Exhibit 46 (Exhibit 21). The record indicates no impropriety in the actions of the agency, in the time it took to make the payment, in the amount of the payment, or in returning invoice four. 54. In April 1993, the agency received invoice six and an adjusted invoice four; EDC sought payment for the disposal of contaminated soil. GSBCA 13520, Exhibit 46 (Exhibit 23); Agency Exhibit 11 (voucher 5). On April 28, 1993, the agency approved payment for $30,233.16--the amount of vouchers four (as adjusted) and six, utilizing the supporting weight tickets and the agency's conversion of weight to volume. Agency Exhibit 11 (voucher 5). The record indicates no impropriety in the time it took to make the payment and does not indicate that the agency underpaid EDC. 55. In one invoice seven, dated April 20, 1992 (although 1993 was intended), EDC seeks $49,750, for what it describes as materials stored on site for this project. EDC Exhibit 184. In a second invoice seven, dated April 26, 1992 (although 1993 was intended), EDC seeks $20,000 to excavate and dismantle tanks. EDC Exhibit 198. In invoice nine, dated April 20, 1992, EDC seeks $20,000, the balance of the $45,000 EDC originally requested for tank rental, although it had agreed to $25,000 in modification four, Finding 4. EDC Exhibit 186. In invoice ten, dated June 7, 1993, EDC seeks $99,637 for what it describes as site work completed to date and/or unpaid materials stored on the site. 56. Throughout April and May, and during June and July, 1993, the agency and EDC discussed payments and the dollars which the parties had allocated, for progress payment purposes, to perform portions of the contract. The agency was concerned with the dollars attributed to various aspects of the project--the agreed-to branch values proved to be unrealistic, because EDC had more work to accomplish than the remaining dollars reflected for various items. Exhibit 313 at 2307, 2374, 2491, 2496, 2552-54, 2572-75, 2592-93, 2597; EDC Exhibits 178-80, 188-90, 193A, 194C, 195-97, 215, 215A, 226-30; Transcript at 388, 790, 799. The record does not demonstrate that EDC was entitled to payment for the invoices; that is, EDC has not demonstrated the correctness of its invoices, supporting data, or the branch values, and EDC has not demonstrated that it had not been compensated for some of the amounts sought or the underlying work. 57. By voucher six, with a date of August 5, 1993, the agency approved payment of $91,578. This amount covered payment for contaminated soil disposal (invoice 14, dated July 20, 1993), and site work completed to date and materials stored on site (invoice 15, dated July 20, 1993). Agency Exhibit 11 (voucher 6). EDC has pointed to nothing in the record which demonstrates that it was underpaid in this voucher, or that EDC was entitled to earlier payment for any amount requested. 58. EDC withdrew its invoice seventeen, dated October 15, 1993, after the documentation was deemed to be incomplete. With invoice eighteen, dated November 1, 1993, EDC initially sought $332,115.50 for various work under the contract. A payment meeting was held at the end of October. The agency approved payment on November 11, 1993, for $316,415.50--as representing the contract amount to date, less an amount for the yet-to-be-completed work, less the payments made to date. Agency Exhibit 11 (voucher 7). The record indicates no impropriety in the time it took to make the payment or in the amount of the payment. 59. With invoice nineteen, dated December 13, 1993, EDC requested $313,671. An agency construction engineer recommended payment of $248,503, an amount determined after making various adjustments to EDC's proposed values for work completed and deductions for not-completed shop drawings. The agency approved payment on December 22, 1993, in the amount of $248,503. Agency Exhibit 11 (voucher 8). The record indicates no impropriety in the time it took to make the payment or in the amount of the payment. 60. On July 13, 1994, the agency approved two payments under the contract--$71,804 under voucher nine and $3,865 under voucher ten. Agency Exhibit 11 (vouchers 9, 10). The record indicates no impropriety in the time it took to make the payment or in the amounts of the payments. 61. EDC contends that the agency engaged in improprieties regarding payment for removal of contaminated soil. Bilateral modification eight established a per cubic yard unit price of $130 for the removal of contaminated soil and its replacement. Finding 8. Contrary to the testimony of EDC's operations manager, the modification does not indicate that EDC reserved a right to claim $155 per cubic yard. Transcript at 529-30. The informational price contained in EDC's bid was not a price the Government accepted at the time of contracting; further, EDC made explicit that the price was premised on the removal of twenty-five cubic yards of contaminated soil. Finding 19. EDC has not demonstrated any agency impropriety in negotiating the agreed-upon unit price, Findings 8, 74. 62. EDC also suggests an agency impropriety in paying on a per ton basis as opposed to a volume basis. However, the record does not reveal that the conversion utilized was incorrect. Transcript at 966, 552. If any error occurred, it was overpayment by the Government, because the unit price was to include removal and replacement of contaminated soil with acceptable fill; EDC was paid the unit price for removal alone. 63. EDC's operations manager testified that EDC paid for insurance with a money order. He could not recollect how much he paid, and he provided no evidence of payment for the record. Transcript at 428. He also testified that in one month there were $30,000 in cash withdrawals from cash machines; yet, he provided no substantiation of the assertion or details of what the money purchased. Id. at 608-09. Such a system of accounting rightfully caused the agency pause when reviewing EDC invoices for payment, and it works to disable the Board from granting portions of EDC claims when entitlement is demonstrated. Separate basis for default 64. The contracting officer maintains that a separate basis exists to justify the default termination, a basis the contracting officer was unaware of at the time of default--EDC lacked the requisite insurance throughout the life of the contract and at the time of termination. Transcript at 95-97. 65. A special notice in the solicitation and contract directs that, if the submitted bid price exceeds $25,000, insurance will be required in accordance with specific supplementary conditions. Exhibit 1 at page following table of contents. The supplementary conditions reference clause 22 of GSA Form 3506 (FAR 52.228-5 (SEP 1989)). The clause, captioned "Insurance--Work on a Government Installation," requires the contractor to provide and maintain during the entire performance period at least the kinds and minimum amounts of insurance identified. Id., GSA Form 3506 at 5 ( 22). The contract's reference to general liability insurance provides that contractors "are required to have bodily injury liability insurance coverage written on the comprehensive form of policy of at least $500,000 per occurrence." Exhibit 1 at 800-2 ( 2.02). 66. EDC's operations manager testified that he had obtained the requisite insurance for EDC as a precondition to receipt of the notice to proceed. Transcript at 426-27. He has not produced for the record any documentary support for his assertion--that is, he has supplied no copy of the policy or proof of payment. Id. at 428, 430-31. Although he testified that he applied for the required type of insurance and had a completed and signed application (which was not accepted into the evidentiary record), EDC did not reveal the application during contract performance, when the Town of Brookhaven required proof of insurance, or during subsequent agency inquiries regarding insurance. Id. at 16, 104- 06, 115, 432, 445, 466, 1038-39; Exhibits 284, 286, 292. Even if EDC formally applied for the insurance, the record contains no proof that EDC obtained that insurance--the absence of any indication that such insurance existed suggests that the insurance was never obtained. The certificates of insurance (issued by an authorized representative of the insurance company) contained in the record do not reveal the limitations or parameters of the identified general liability insurance referenced in the certificates. The agency and town could not conclude from certifications that EDC lacked the necessary insurance. E.g., Exhibit 309 at 21136-38. 67. In letters to an insurance agency dated November 16, 1992, EDC seeks quotations for building/office and for general liability insurance and describes the services it would perform under the GSA contract for which it seeks insurance: EDC is a consulting firm that will provide oversight on the cleanup of petroleum (heating oil) contaminated soil around fuel oil tanks. We will act as the technical representative and monitor the work of the contractors actually doing the excavation of the soil and loading it into a treatment unit on the site. Exhibit 313 at 929-30. The letters make no other attempt to depict EDC's obligations and responsibilities under its contract with GSA. The letters miscast EDC's role under its contract. 68. Those individuals offering the insurance, contacted by EDC during the contract period, testified that the general liability insurance EDC obtained covered only occurrences on the property of EDC, not occurrences at the Government facility in connection with the contract. Transcript at 60, 79-80. Moreover, one owner of an insurance agency testified that he provided prices to EDC's operations manager for the general liability insurance to cover the Government property site; the premium was substantially higher than that paid by EDC. EDC rejected the more costly insurance. Id. at 60-68. 69. After a lapse in insurance coverage, although EDC obtained insurance coverage effective August 1, 1994, the policy covered concrete work. The insurance broker testified that the policy did not cover removal or replacement of underground fuel storage tanks or work in connection therewith--such tasks reflect "high-risk" jobs, not covered by the EDC-requested insurance. Transcript at 77-80. 70. The Town of Brookhaven refused to issue a permit without a copy of the actual insurance policy--such was made clear to EDC. EDC failed to provide the requisite submission, as noted in a letter, from the town to EDC, dated August 2, 1994: I am in receipt of your letter of August 1, 1994, with the certificate of insurance. On July 22, 1994 and July 26, 1994 you were informed that THE INSURANCE POLICY must be reviewed by the Department of Law. I don't believe I can make that any more clear. If you have any desire at all to obtain a permit for this work, please forward THE INSURANCE POLICY! Exhibit 89. 71. Based upon the record as a whole, and as reflected in the facts set forth above, the Board concludes that EDC lacked general liability insurance to cover operations at the Government-owned facility in connection with the contract. EDC was made aware of the cost for such insurance, yet opted for less expensive coverage which failed to satisfy the requirements of the contract. EDC claims for recovery 72. As itemized below in eight categories with associated dollar amounts, EDC claims entitlement to $898,392.48, for costs and expenses incurred beyond those priced in the contract. 73. EDC maintains that it is entitled to $150,449.48 for the removal and disposal of contaminated soil. Although EDC has not placed into the record its calculations, EDC asserts that it has excavated and disposed of 800 cubic yards of contaminated soil for which payment has not been received. Testimony at the hearing on the merits by EDC's operations manager, Transcript at 526-29, without supporting weight tickets from the subcontractor(s) disposing of the alleged soil, is not persuasive proof that the additional contaminated soil was on site and disposed of on behalf of EDC, particularly when the agency maintains that it has made payment based on receipts provided, id. at 894. 74. EDC also references the underlying contract, in which it listed a price of $155 per cubic yard for the removal of contaminated soil and the replacement with approved soil. However the $155 amount was not accepted by the agency and is not relevant to the large volume of contaminated soil. Finding 61. By variously portraying what is included in its $155 unit price, GSBCA 13520, Exhibit 46 (Exhibit 33A), EDC lends no credibility to its assertions; however, that price appears to have been premised on a subcontractor providing shoring, which, by contract modification, the agency treated as a separate cost item, Finding 7. EDC Exhibits 235, 236A. These facts tend to undermine EDC's allegations that it was unpaid and underpaid. Further, the record does not demonstrate that EDC actually replaced, cubic yard for cubic yard, the contaminated soil removed. Nor has EDC demonstrated that it is entitled to greater reimbursement than that made using a conversion of tons into cubic yards. Transcript at 554-56, 894. Hence, although the agency paid on a per ton basis for the removal and disposal of contaminated soil, EDC has not demonstrated that such reimbursement was inadequate or that it is entitled to any greater payment. 75. EDC seeks a total of $72,450.92 for the rental of temporary fuel tanks. EDC seeks $33,258.42 for one tank, $14,304.50 for another tank, and $24,888.00 for several smaller tanks. Bilateral modifications four and twelve expressly compensate EDC for the use of temporary fuel tanks. Findings 4, 10. Further, by failing to place in the record appropriate supporting documentation, EDC has not established that the tanks were on-site beyond the period of compensation, and has not established that the amount it seeks reflects rental charges and an appropriate mark-up. 76. EDC seeks $17,065.00 for what it describes as its extended rental of a field office trailer and the value of its contents. The agency does not dispute that a trailer remained on- site well beyond the original contract period. Not one of the modifications expressly includes a cost for use of the trailer. Findings 4-12. EDC's operations manager testified that the charge, at least in part, is not for actually incurred rental charges; rather, it is in line with rental charges quoted to EDC (from unstated companies, for unstated durations and for unstated times). The amount also is said to reflect insurance plus actual rental, as well as bringing in the trailer, setting it up and taking it down. Transcript at 589-91. EDC has pointed to no documentation in support of these assertions (e.g., bills, checks, receipts) and has provided no corroborative testimony, nor has it indicated if the cost of the trailer was utilized in calculating the overhead charges which were applied to costs reflected in modifications. 77. EDC seeks $2,065.12 for what it attributes to the extended rental of portable lavatories. While the contract was extended for periods well beyond the original contract performance period, not one of the modifications expressly includes a cost for use of portable lavatories. Findings 4-12. What the record does not reveal is how EDC calculated the cost is seeks to recover. EDC has pointed to no supporting documentation reflecting a rental charge to it, nor has it indicated if the cost of lavatories was utilized calculating the overhead charges which were applied to costs reflected in modifications. 78. EDC seeks $9,104.05 for what it describes as additional bonding costs. From contract award through the time of default, the contract price increased. However, EDC has failed to demonstrate that it increased its bonding; it has not referenced proof that it obtained or incurred costs for additional bonding. 79. EDC claims $288,455.33 as additional overhead and home office expense. EDC's operations manager testified that all of EDC's overhead resources were allotted to this, the sole EDC contract. Further, the calculation of the amount is based upon the costs of maintaining an office and support, utilities, consultant fees, and all non-direct chargeable costs (like accountants and attorneys). Transcript at 695. While the operations manager testified that he possesses documents and materials (e.g., credit card bills, utility bills, office rent bills, office expenditures receipts) which support the amount, id. at 707-08, that supporting information is not part of the record. An agency auditor reviewed supporting documentation submitted by EDC at the request of the auditor. An auditor testified that the overhead figure was not supported by the information and submissions of EDC, and that the claimed overhead seemed unreasonable, given the type and size of business involved. Id. at 998-99, 1001, 1003-04, 1016-17. The record does not enable the Board to conclude what overhead costs were incurred, are reasonable and recoverable, and remain uncompensated. 80. EDC claims recovery of miscellaneous expenses of $206,114.57, itemized by dollar amount into thirty-three categories. Regarding entitlement, for many of the items, EDC has not utilized the record to demonstrate how the items represent an expense other than one contemplated in the contract, as modified, or would constitute changed work for which payment is due. EDC has not specified when particular work occurred. For example, numerous items are for the movement of dirt. Credible testimony reveals that EDC's placement of dirt necessitated its later movement, although a different initial placement would have alleviated the need for later movement, Transcript at 946-48, 959-60. Further, modification six compensated EDC for the movement of stockpiled soil, Finding 6; EDC has not provided enough specificity to distinguish portions of this claim. Four items involve plywood fences: remove, reinstall, remove, and reinstall. Modification six required EDC to install a plywood fence. Finding 6. While removals and reinstallations were not priced in a change order, the record does not demonstrate that the agency directed EDC to undertake any of the work, or that poor planning by EDC was not the cause of the work. In any event, proof is lacking for the quantum portion of the claim. 81. EDC claims $152,688.01 in extra costs due to project delays caused by the agency. EDC has not attempted to allocate this amount among twelve categories it identifies, namely, extra soil handling, repair and upgrade of temporary containment system, periodic and winter maintenance and repairs to safety fence, construction of temporary barrier, enlargement of work area to accommodate additional soil, extra mobilization, extra travel, additional rental for earth moving equipment, extra man-hours, costs of upgraded or changed waste oil tank, purchase of a lube oil tank, and re-excavation of soil that caved in due to lack of shoring. Regarding entitlement, EDC has provided no specificity as to when any alleged action occurred, or what agency-caused delay resulted in the work. Regarding quantum, EDC has pointed to no documentation in the record which supports the EDC contention that it incurred costs (of the amount suggested or of a lesser amount). 82. The operations manager of EDC testified that his claim is supported by receipts and other accounting information. EDC did not seek to place the material it alleges supports its claim into the record. The cost data which actually is a part of the record could serve as an integral part of substantiating a claim, but in combination with the information in the record, the minimal cost data is not useful. For example, in a submission in response to an agency request for cost data, EDC asserts that for the period May 26, 1992, through June 30, 1994, it worked solely on this contract. The submission has columns associating company or category of cost, invoice number (often a generic entry, and a blank in some instances) and dollar amount, but without any indication as to what was purchased, when or how the expenditure relates to the contract. GSBCA 13520, Exhibit 49. The record contains very few of the invoices referenced by a number. EDC sums its figures and concludes that the total project cost was $1,694,707.30. In another document in the record, EDC provides a summary of accounts. This document contains columns associating a date, company or category of cost, dollar amount, invoice number and project code (without a key explaining the numbers). Some of the entries, from 1990 and 1991, predate the contract. The submission does not attempt to explain what was purchased or how the expenditures relate to the contract, although the record (in exhibits not cross- referenced by EDC) does contain copies of some of the invoices identified. EDC Exhibit 192. 83. Agency auditors attempted to perform an audit and review of EDC's claim, utilizing "supporting data" (approximately twenty- seven folders) provided by EDC to the auditor, after a request for additional information, Agency Exhibit 13. However, according to an auditor, insufficient financial records precluded a full audit of the claim. The "supporting data" did not indicate how EDC developed its costs or substantiate any specific area of cost in the claim. Transcript at 990, 996-1001. EDC has not placed in this record the "supporting data" submitted to the auditors, or demonstrated that the analysis or testimony of the auditor was flawed or inaccurate. Post-default contract completion 84. The contract contains a liquidated damages provision, FAR 52.212-5 (APR 1984), which provides, in part: A. If the Contractor fails to complete the work within the time specified in the contract, or any extension, the Contractor shall pay to the Government as liquidated damages, the sum of $400.00 for each day of delay. B. If the Government terminates the Contractor's right to proceed, the resulting damage will consist of liquidated damages until such reasonable time as may be required for final completion of the work together with any increased costs occasioned the Government in completing the work. Exhibit 1 at 800-4 ( 5.01). This rate, which reflects projected costs for outside construction quality management (a project director, a soil consultant, and an inspector) and agency costs of administration, was approved by the agency's section chief for design, section chief for construction, and architect/engineer. GSBCA 13575, Exhibit 1; Transcript at 181-83. 85. The agency has assessed liquidated damages of $128,000. This is for 320 calendar days, the period between the date established in the EDC contract, as modified, for contract completion, July 30, 1994, and the date of substantial completion by the follow-on contractor, June 16, 1995. The period of time encompasses obtaining the follow-on contractor and performance, through substantial completion. The work performed was to complete the work specifically required by the underlying contract, as modified at the time of default (including the correction of work improperly performed by EDC), and to remedy damage directly or indirectly caused by EDC. GSBCA 13575, Exhibit 11. 86. EDC actions and inactions resulted in damage to a switchgear and a transformer. Exhibits 62, 198, 224; Transcript at 184-85; GSBCA 13575, Exhibit 11. The agency has introduced purchase orders for work related to testing, repair and replacement necessitated by the damage. These documents support the charges for costs (totaling $71,040.50) assessed by the agency against EDC. The agency has also determined that the IRS incurred an increased cost of $37,000 to run generators for seventy-four days because the switchgear was damaged. This calculation is based on charges under an IRS facility's maintenance contract and reflects the costs the IRS incurred in excess of what it would have incurred otherwise. The IRS paid $500 per day. The assessment is supported by documentation and testimony. GSBCA 13575, Exhibits 2-4, 6-8, 11; Transcript at 1084-93. This information is credible; the figures represent costs incurred by the Government to remedy damages caused by EDC. The total is $108,040.50. The assessment is consistent with contract clauses. Exhibit 1 at 1010-3 ( 1.7.D.1 (work remaining in place which is damaged or defaced during this contact shall be restored to the condition existing at time of award of contract)), GSA Form 3506 at 2 ( 11, FAR 52.236-7, Permits and Responsibilities (APR 1984): "Contractor shall also be responsible for all damages to persons or property that occur as a result of the Contractor's fault or negligence" and "shall also be responsible for all materials delivered and work performed until completion and acceptance of the entire work") and at 10 ( 41, FAR 52.236-9, Protection of Existing Vegetation, Structures, Equipment, Utilities, and Improvements (APR 1984)). 87. The agency also seeks recovery for additional costs in completing the work, relying on the clause cited in the finding above. Although the agency had sought $44,362.41, GSBCA 13575, Exhibit 11, it seeks $38,737.41, Agency Post-hearing Brief at 128, broken down as follows: $16,000 heating tents 6,000 dig and test drywells 5,625 remove and haul soil contaminated by EDC-caused spills 4,598 curb repair 5,864.41 weather related incidents 650 move temporary lines 88. So as to facilitate completion and avoid delay in pipe fitting because of cold weather, temporary heating tents were placed on the site over pipe joints. For this, the agency incurred costs of $16,000 paid to the follow-on contractor. GSBCA 13575, Exhibit 10; Transcript at 805-06, 816-17. The use of heating tents was prudent to avoid the delay of another winter season for a yet incomplete project well beyond its completion date. Had the contract been completed by July 30, 1994, these costs would not have been incurred. 89. GSA, concerned that drywells were contaminated, paid the follow-on contractor $6,000 to dig the soil and have it tested. GSBCA 13575, Exhibit 10; Transcript at 806-07. Testimony reveals that an individual thought there were three areas to test, and he believed that one came back contaminated. Transcript at 807. The agency has pointed to no substantive support for this individual's beliefs. In April 1994, the agency stated that EDC negligence led to contamination, Exhibit 19; in a letter dated May 9, 1994, EDC disavowed negligence or impropriety, Exhibit 21. The record does not demonstrate that EDC actions or inactions were a cause of the alleged contamination. 90. The agency has assessed EDC a total of $5,625 for the removal and hauling of contaminated fill by the follow-on contractor. GSBCA 13575, Exhibit 11; Transcript at 809-10. The agency had not paid EDC for this work. The agency has not suggested why EDC should bear the cost of these tasks. That is, this was work to be performed under the terminated portion of the contract. The agency has not paid twice for the work. The record does not demonstrate that the agency's costs for the follow-on contractor were greater than those it would have incurred with EDC. 91. The agency has assessed EDC $4,598 as costs incurred for curb repair, as paid to the follow-on contractor. GSBCA 13575, Exhibit 10. In support of the allegation is testimony that EDC did the damage, which was not noticeable at the time the follow-on contractor commenced performance "because of the dirt that was stockpiled on the site, and that was removed, and it became apparent that there was some damages to the curb that had to be fixed, and GSA incurred those costs." Transcript at 812. The record does not support the conclusion that EDC caused the damage to the curbing that required the repair. The record does not reveal the condition of the curb prior to EDC's arrival on-site; what other contractors, if any, may have had access to the site and potentially damaged the curbing; or what actions the follow-on contractor took to ensure that, in removing the dirt, it did not damage the curbing. 92. The agency seeks to recover $5,864.41 for what it describes as "weather-related incidents." The agency has failed to reference support in the record for the actual incidents, actions, and individual costs involved. 93. The Government incurred a cost of $650, paid to the follow-on contractor, to relocate temporary tank piping. GSBCA 13575, Exhibit 10; Transcript at 812. GSA contends that the relocation was necessary because the temporary lines should not have been placed in the path of the lines for the final location of tanks and piping. Transcript at 812. Given the approvals and timing of decisions regarding the locations of the temporary tanks and of the final tanks, Finding 7, the agency has failed to attribute this cost to the fault or negligence of EDC. Discussion In GSBCA 12951, EDC contends that the agency improperly terminated for default the underlying contract. In GSBCA 13520, EDC seeks an equitable adjustment. The request attributes dollar amounts to seven categories: removal and disposition of contaminated soil; rental of temporary fuel tanks; extended rental of field office trailer and contents; extended rental of portable lavatories; additional bonding; additional overhead and home office expense; miscellaneous expense; and extra cost due to project delays caused by the agency. In GSBCA 13575, EDC disputes an agency claim for $280,406.91, which consists of liquidated damages and costs allegedly attributable to remedy or incurred because of EDC-caused site damage. GSBCA 12951 EDC contends that the agency improperly terminated for default the underlying contract. The agency bears the burden of demonstrating the propriety of the termination for default. The agency has successfully met its burden. At the time of the default, the contract completion date, as altered by bilateral contract modifications, had passed. The record reveals no basis for concluding that the contract completion date should be extended because of agency-caused delay or disruption. EDC had failed to complete performance, and hence was in default. The record does not establish a factor mitigating against the default. The agency's direct and indirect actions and inactions in dealing with contaminated soil and shop drawings did not delay the project with respect to the bilaterally agreed-upon completion date. Similarly, the record does not bear out EDC's allegations with respect to interferences. That is, EDC alleges that after its operations manager refused the bribe requests of an agency employee, who was thereafter convicted of soliciting bribes from a different contractor in connection with a separate contract at the same location, the agency impermissibly interfered with EDC's performance. These allegations and assertions are unsupported by the record. The record demonstrates that problems with receiving payment were caused by EDC's failures in providing invoices and support for claimed money, and in misallocating costs among the various contract components. EDC had a fixed-price, not a cost- reimbursement, contract. Any cost EDC incurred was not necessarily reimbursable by the agency. The record reveals no agency impropriety in reviewing the invoices and supporting documentation submitted by EDC. The record does not demonstrate that the agency undervalued the work performed or materials on site. The record reveals that the agency appropriately issued stop work orders and that the town appropriately issued cease and desist orders based on EDC's actions and inactions. EDC has shown no agency impropriety in issuing orders or any connection between the town issuing orders and any agency employee; rather, EDC had difficulties performing its obligations under the contract and the agency and town enforced the terms of the contract and laws, respectively. Apart from EDC's failure to timely complete, the agency has raised an independent basis which justifies the termination for default: throughout the performance period and at the time of default, EDC lacked the insurance coverage required by the contract. Despite EDC's self-certification at the outset of the contract, EDC lacked the requisite insurance. EDC has produced no credible support for its assertion that it possessed the contract- required insurance. The evidence supports a conclusion contrary to that espoused by EDC. That is, EDC was made aware of the cost of general liability insurance to cover work at the Government facility. The cost was substantially higher than general liability insurance covering the site of the EDC office. EDC opted for this latter insurance, which did not fulfill EDC's obligations under the contract. At the time of default, EDC lacked insurance as required by the contract. Because of EDC's failure to obtain and possess the requisite insurance, the Government was justified in default terminating the contract; EDC failed to perform an obligation under the contract which was bargained and paid for by the Government. Regarding the termination for default, the agency has met its burden. EDC has not shown a basis which makes the default determination improper. The Board denies this appeal. GSBCA 13520 EDC claims entitlement to $898,392.48, for costs and expenses incurred beyond those priced in the contract. Some of the costs EDC attributes to delays beyond the control of EDC, others to changed work, and others to the extended period of performance. As detailed in the findings of fact, Findings 72-83, EDC has failed to develop the record sufficiently to carry its burden to recover. The record does not reveal what costs EDC incurred which the agency should have compensated. That is, EDC has not demonstrated its entitlement to recovery or the amount of recovery or both. Therefore, the Board denies this appeal. GSBCA 13575 The agency has assessed EDC for liquidated damages, because of the late completion of the contract, and for excess costs of performance, including costs to repair damages caused by EDC actions and inactions. The agency assessed liquidated damages within the terms of the contract. The amount, $128,000, is reasonable and not punitive. Findings 84-85. The Board grants this aspect of the agency claim. EDC actions and inactions led to the damage of the switchgear and transformer. The agency has substantiated its costs, $108,040.50, incurred to correct and sustained because of the damages. Finding 86. In accordance with the terms of the EDC contract, EDC is liable for these costs. The Board grants this aspect of the agency claim. The cost for heating tents was a reasonable expense incurred by the agency to facilitate completion. The cost would not have been incurred had EDC completed the contract on time. This expense was not envisioned within the liquidated damages provision; it is separately recoverable as an additional expense incurred to complete performance. Findings 86, 88. The agency has failed to demonstrate EDC responsibility for the other claimed costs. The record fails to demonstrate either entitlement (that is, that EDC actions or inactions led the agency to incur particular costs, or that the work does not fall within the scope of the terminated portion of the contract) or quantum (that is, that the agency incurred the claimed costs) or both. Findings 89-93. The record supports the agency claim for $252,040.50, but not for the remainder, $22,737.41. Accordingly, the Board grants in part the EDC appeal related to this agency claim. Decision The Board DENIES the appeals in GSBCA 12951 and 13520, and GRANTS IN PART the appeal in GSBCA 13575. ______________________________ JOSEPH A. VERGILIO Board Judge We concur: ______________________________ ______________________________ ANTHONY S. BORWICK MARY ELLEN COSTER WILLIAMS Board Judge Board Judge