Board of Contract Appeals General Services Administration Washington, D.C. 20405 ____________________________________________________ MOTIONS FOR SUMMARY RELIEF DENIED: April 7, 1998 ____________________________________________________ GSBCA 13625 MARON CONSTRUCTION CO., INC., Appellant, v. GENERAL SERVICES ADMINISTRATION, Respondent. Charles S. Kirwan of Charles S. Kirwan & Associates, Pawtucket, RI, counsel for Appellant. Kevin S. Anderson, Office of General Counsel, General Services Administration, Washington, DC, counsel for Respondent. Before Board Judges PARKER, NEILL, and DeGRAFF. DeGRAFF, Board Judge. Maron Construction Co., Inc. (Maron) contracted to perform renovation work for the General Services Administration (GSA). Maron finished the work after the completion date established by GSA and after the date Maron says it expected to complete the work. Maron submitted a claim to GSA and asked to be compensated for delay that Maron contended was caused by GSA. The parties filed cross-motions for summary relief and asked us to resolve three parts of Maron's claim. As explained below, we deny the motions. Findings of Fact[foot #] 1 On May 7, 1993, GSA awarded a contract to Maron for renovations to the J.O. Pastore Federal Building and United ----------- FOOTNOTE BEGINS --------- [foot #] 1 These facts are not in dispute. All of the exhibits cited in the findings of fact and in the discussion are contained in the appeal file submitted by the parties. ----------- FOOTNOTE ENDS ----------- States Post Office in Providence, Rhode Island. Exhibit 6. On June 29, 1993, GSA issued the notice to proceed, which stated that the work required by the contract had to be completed within 660 days after June 29, 1993, which was April 20, 1995. Exhibit 8. On-site work was to begin no earlier than December 1, 1993. Exhibit 4 at 11. The three sections of the contract that are relevant to the pending motions are set out below. The first two sections are part of the contract's General Conditions. The third section is part of the contract's technical specifications. Exhibit 1 at iii. FAR 52.243-2 -- Changes (Aug 1987) (a) The Contracting Officer may, at any time, without notice to the sureties, if any, by written order designated or indicated to be a change order, make changes in the work within the general scope of the contract, including changes -- (1) In the specifications (including drawings and designs); (2) In the method or manner of performance of the work; (3) In the Government-furnished facilities, equipment, materials, services, or site; or (4) Directing acceleration in the performance of the work. (b) Any other written or oral order, (which, as used in this paragraph (b), includes direction, instruction, interpretation, or determination) from the Contracting Officer that causes a change shall be treated as a change order under this clause; provided, that the Contractor gives the Contracting Officer written notice stating (1) the date, circumstances, and source of the order and (2) that the Contractor regards the order as a change order. (c) Except as provided in this clause, no order, statement, or conduct of the Contracting Officer shall be treated as a change under this clause or entitle the Contractor to an equitable adjustment. (d) If any change under this clause causes an increase or decrease in the Contractor's cost of, or the time required for, the performance of any part of the work under this contract, whether or not changed by any such order, the Contracting Officer shall make an equitable adjustment and modify the contract in writing. However, except for an adjustment based on defective specifications, no adjustment for any change under paragraph (b) of this clause shall be made for any costs incurred more than 20 days before the Contractor gives written notice as required. In the case of defective specifications for which the Government is responsible, the equitable adjustment shall include any increased cost reasonably incurred by the Contractor in attempting to comply with the defective specifications. Exhibit 1 at 33-34. GSAR 552.243-71 -- Equitable Adjustments (Apr 1984) (a) The provisions of the "Changes" clause prescribed by FAR 52.243-2 are supplemented as follows: . . . . (3) The Contractor shall submit with the proposal his request for time extension (if any), and shall include sufficient information and dates to demonstrate whether and to what extent the change will delay the contract in its entirety. Exhibit 1 at 34-35. Section 01311 - Critical Path Method Scheduling Part 1 - GENERAL . . . . 1.3 INITIAL SUBMITTALS . . . . C. Within 45 calendar days after receipt of notice to proceed, submit . . . a computer-produced schedule . . . showing early and late starting and finishing dates for each activity in terms of the number of days after receipt of notice to proceed. All completion dates shown shall be within the period specified for contract completion. The backward calculations for late dates will be done by forcing the end date of the project to be the contract completion date as specified by the contract documents. . . . . 1.8 PROGRESS REPORTING AND CHANGES . . . . D. Total float is defined as the amount of time between the early start date and the late start date, or the early finish date and the late finish date, of any activity in the project schedule. And is further defined as the amount of time any given activity or path of activities may be delayed before it will affect the project completion time. Total float is not time for the exclusive use or benefit of either the Government or the Contractor, but must be used in the best interest of completing the project on time. Extensions of time for performance required under the General Conditions pertaining to equitable time adjustment will be granted only to the extent that the equitable time adjustment exceeds total float in the activity or path of activities affected at the time notice to proceed was issued for the change. The government shall not be responsible for any delays or for the contractor's extended overhead if such delay time can be absorbed in total float. Nor shall the government be responsible for payment for any delays or for contractor's extended overhead which exceed total float unless the delay is government caused. The government shall only be responsible for government caused delays to the extent they exceed total float without the presence of any concurrent non government caused delay. Free float is defined as the least time between the early finish date of one activity and the early start date of any subsequent activity of which it is a dependency. . . . . F. Each update will continue to use the project completion date as specified in the contract documents or as modified by a time extension granted by the contracting officer for the backward calculations to determine the late dates and floats. Exhibit 1 at 146-47, 150-51. On November 14, 1995, Maron submitted a claim to the GSA contracting officer. Maron asserted that GSA had delayed Maron's progress starting shortly after December 1, 1993, when it began work. Exhibit 217. Maron calculated that GSA was responsible for a total of 320 days of delay, every day from December 1, 1994, when Maron says that it would have completed the contract work if not for GSA s delays, through October 16, 1995, when Maron substantially completed the contract work. Exhibit 217 at 62-63. Maron claimed that GSA was liable for delay damages for those 320 days consisting of direct costs, indirect costs, and profit. Exhibit 217 at 66-76. GSA believes that it is responsible for 107 days of compensable delay that occurred after April 20, 1995. Exhibit 243, Attachment 15; Appellant's Statement of Uncontested Facts 8; Respondent's Statement of Genuine Issues at 1. On June 21, 1996, the contracting officer issued a decision denying Maron s claim. Exhibit 221. This appeal followed. Between December 1993 and mid-October 1995, Maron submitted bids for approximately 240 projects worth nearly $125 million. Exhibit 230. Maron's bonding capacity did not decrease between January 1993 and December 1995. Exhibit 234. Between December 1993 and mid-October 1995, Kendland Company, Inc. (Kendland), one of Maron's subcontractors, submitted bids for approximately 105 projects. Exhibit 235. Kendland's bonding capacity increased between 1993 and 1994. Its bonding capacity was restricted in 1995, due to financial losses incurred by a related business activity. Exhibit 241. Discussion In order to grant any part of either party's motion for summary relief, we must decide that there is no genuine dispute as to any material fact and that the moving party is entitled to relief as a matter of law. Rule 8. 48 CFR 6101.8 (1995). We deny the motions concerning early completion delay damages, because there are genuine disputes concerning material facts and neither party is entitled to relief as a matter of law. We deny the motions concerning unabsorbed overhead, because there is a genuine dispute concerning a material fact. We deny Maron's motion concerning second floor tie-in drawings, because there are genuine disputes concerning material facts. I. Early Completion Delay Damages Of the 320 days for which Maron claims delay damages, 142 days fall between December 1, 1994, and April 20, 1995. The parties refer to the damages that Maron seeks for these 142 days as early completion delay damages. In its motion, GSA argues that it is entitled to summary relief concerning early completion delay damages for two reasons. First, says GSA, the contract established April 20, 1995, as the contract completion date and Maron cannot show either that it intended to complete the contract before that date or that it had the capability to complete the contract before that date. Second, says GSA, section 01311 of the contract insulates GSA from liability for early completion delay damages occurring before April 20, 1995. Respondent s Motion at 3-10. In its motion, Maron argues that it is entitled to summary relief concerning early completion delay damages, for two reasons. First, Maron argues that section 01311 is unenforceable because GSA did not obtain permission to deviate from a mandatory Federal Acquisition Regulation (FAR) clause in order to use that section, because GSA waived the application of section 01311, and because several GSA contract violations bar GSA from using section 01311. Second, says Maron, it would have completed the contract early but for GSA's actions. Appellant s Renewed Motion at 28-93. A. Section 01311 Section 01311 of the contract concerns Critical Path Method (CPM) scheduling. CPM scheduling is a technique often used to manage construction projects. In order to prepare a CPM schedule, one must break the construction project into its component activities, determine the amount of resources (including time) required by each activity, decide how the activities are connected to one another, and prepare a schedule for completing the project that takes into account the relationships between the activities and the proper sequence for performing the activities. A CPM schedule can show several paths containing activities necessary to complete the project. The longest path running through the project from beginning to end is considered "critical." Any delay to an activity along the critical path will delay completion of the entire project. Paths through the schedule are not critical if the activities on those paths can experience some delay without resulting in a delay to overall project completion. The amount of delay that a path or an activity can experience without delaying completion of the project is called "float." The critical path has no float. A path or an activity that is not critical when a CPM schedule is developed can become critical if all of the float available for that path or activity disappears. J. Wickwire & R. Smith, The Use of Critical Path Techniques in Contract Claims, 7 Pub. Cont. L.J. 1 (1975). Section 01311-1.3C of the contract tells Maron that when it prepares its CPM schedule, it must force the end date of the project to be the contract completion date (April 20, 1995), and then calculate backwards from that date to arrive at the late start and late finish dates for the project. Section 01311-1.8F tells Maron to use the contract completion date when it prepares its CPM schedule updates. Section 01311-1.8D of the contract defines "total float" as the amount of time an activity or path of activities can be delayed before it will affect the project completion time. Section 01311-1.8D provides that GSA will make equitable time adjustments pursuant to the contract's General Conditions, which includes the Changes clause, only to the extent that the time adjustment exceeds total float in the activity or path affected at the time a notice to proceed was issued for the change. This section also provides that GSA is not responsible for any delays or for Maron s extended overhead if the delay can be absorbed by total float. Further, section 01311-1.8D says that GSA is not responsible for payment for delays or extended overhead which exceed total float unless GSA caused the delay, and that GSA is responsible for delays it causes only if they exceed total float without any concurrent nongovernment-caused delay. Provisions such as section 01311-1.8D are not unusual in construction contracts awarded by federal government agencies. McCoy Brothers, Inc., ASBCA 40070, 95-2 BCA 27,775; Batteast Construction Co., Inc., ASBCA 35818, 92-1 BCA 24,697; RobGlo, Inc., VABCA 2879, 91-1 BCA 23,357; Gulf Contracting, Inc., ASBCA 30195, 89-2 BCA 21,812, aff'd, 23 Cl. Ct. 525 (1991), aff'd, 972 F.2d 1353 (Fed. Cir.)(table), cert. denied, 506 U.S. 999 (1992); Dawson Construction Co., Inc., VABCA 2322, 88-3 BCA 20,945; Santa Fe, Inc., VABCA 2168, 87-3 BCA 20,104; Titan Pacific Construction Corp., ASBCA 24148, 87-1 BCA 19,626; Ramdel Construction Corp., ASBCA 27801, 85-3 BCA 18,502; Utley- James, Inc., GSBCA 5370, 85-1 BCA 17,816, aff'd, 14 Cl. Ct. 804 (1988); Montgomery-Ross-Fisher, Inc., PSBCA 1033, 84-2 BCA 17,492; Santa Fe, Inc., VABCA 1943, 84-2 BCA 17,341. 1. GSA's Motion According to GSA, sections 01311-1.3C and 01311-1.8F precluded early completion delay damages because they required Maron to prepare and to update a CPM schedule using April 20, 1995 as the contract completion date, and if Maron had anticipated finishing the contract work before that date, the CPM scheduler would have simply built in more float, which would have been available to absorb any GSA-caused delays. In other words, GSA says there was no such thing as early completion of this contract. Either Maron would finish work on April 20, 1995, or Maron's CPM scheduler would build in float time before that date which would absorb any GSA-caused delays until that date. Respondent's Motion at 7-10. In support of its argument, GSA cites two cases for the proposition that the Government can limit or preclude its liability for delay damages. L.L. Hall Construction Co. v. United States, 379 F.2d 559 (Ct. Cl. 1966); A.S. McGaughan Co., PSBCA 2074, 90-1 BCA 22,411. Although we agree with GSA that the Government can draft a contract clause that limits or eliminates its liability for delay damages, as Hall and McGaughan make clear, such a clause must specifically and expressly exempt the Government from liability. Section 01311 does not specifically and expressly state that GSA will be exempt from liability for early completion delay damages. Neither does this section specifically and expressly state that Maron was precluded from completing the contract work early, even though a contractor is usually entitled to improve its progress and to finish before a contract s completion date. Montgomery-Ross-Fisher, Inc., PSBCA 1033, 84-2 BCA 17,492; Eickhof Construction Co., ASBCA 20049, 77-1 BCA 12,398. If GSA wanted to eliminate its liability for early completion delay damages by eliminating Maron s ability to finish early, it should have made this clear in the contract. Sections 01311-1.3C and 01311-1.8F told Maron that when it prepared its CPM schedule and updates to the schedule, it should make backward calculations for late finish dates by forcing the end date of the project to be April 20, 1995. These sections address the mechanics of constructing a CPM schedule and do not specifically and expressly tell Maron either that GSA would not be responsible for any claim for early completion delay damages before April 20, 1995, or that it was not possible for Maron to complete the project early. We deny GSA's motion for summary relief, in part, because as a matter of law, section 01311 of the contract does not insulate GSA from liability for early completion delay damages. 2. Maron's Motion According to Maron, section 01311 is unenforceable and, therefore, we should ignore that section when we review Maron's request for early completion delay damages. Maron argues that section 01311 is unenforceable because GSA did not obtain permission to deviate from a mandatory FAR clause in order to use that section, because GSA waived the application of section 01311, and because several GSA contract violations bar GSA from using section 01311. a. FAR Deviation Maron says that we should disregard section 01311 when we review its request for early completion delay damages because section 01311-1.8D is inconsistent with the contract s Changes clause (FAR 52.243-4). Due to the alleged inconsistency between the FAR clause and section 01311-1.8D, Maron says that GSA was required to obtain approval to deviate from the FAR in order to use section 01311-1.8D. Maron cites to several decisions that hold that a contract provision which is inconsistent with or which alters the substance of a mandatory FAR clause is a deviation from the FAR and is unenforceable unless the agency has been authorized to use the provision. Appellant s Renewed Motion at 28-37. The contractor in Santa Fe, Inc., VABCA 1943, 84-2 BCA 17,341 made an argument similar to the argument that Maron makes here. Santa Fe asserted that the Government should have extended the time for contract completion due to Government- ordered changes to the contract work. The Government argued that it properly denied Santa Fe s request to extend the time for contract completion because the activities affected by the change orders had float available, and the contract provided that time extensions would be granted only if Santa Fe had used all of the float time available for the work involved. Santa Fe argued that this contract provision was inconsistent with general contract provisions, including the Changes clause. The board in Santa Fe did not find that the contract s provision concerning the use of float was inconsistent with any of the contract s other provisions. In reaching this conclusion, the board explained that a Government-directed change has to affect completion of the overall project in order for a contractor to be entitled to an equitable time adjustment, and that the Government s actions did not adversely affect project completion if there was float time available. The board denied Santa Fe s appeal because, due to available float, the Government s actions did not affect the contract s completion date. This case is similar to Santa Fe. The Changes clause here provided that if GSA made a change to the work required by the contract, and if that change caused an increase in the time required to perform contract work, GSA would make an equitable adjustment to the contract. The Changes clause does not require the Government to make an equitable time adjustment unless a Government-ordered change causes an increase in the time required to complete the contract. Preston-Brady Co., VABCA 1849, 86-2 BCA 18,860, aff'd, 865 F.2d 269 (Fed. Cir. 1988)(table). If Maron wanted an equitable time adjustment due to a GSA-ordered change, the contract s Equitable Adjustments clause, which supplements the Changes clause, required Maron to demonstrate whether and to what extent the change would delay the contract in its entirety. Consistent with the Changes clause and the Equitable Adjustments clause, section 01311-1.8D explains that if the impact of a GSA-ordered change is absorbed by the float available for a particular contract activity or path, then the contract's completion date is not affected and no equitable time adjustment is warranted. The Changes clause and section 01311- 1.8D are complimentary, not inconsistent, and so there was no need for GSA to seek approval for a FAR deviation in order to use section 01311-1.8D. We deny Maron's motion for summary relief, in part, because as a matter of law, GSA was not required to obtain approval for a FAR deviation in order to use section 01311-1.8D. b. Waiver by GSA Maron also says that we should disregard all of section 01311 when we review its request for early completion delay damages because GSA waived the application of that section when it delayed Maron's progress and made it impossible for Maron to prepare and to update a CPM schedule. Appellant's Renewed Motion at 37-52. There are numerous genuinely disputed material facts concerning this issue. For example, GSA puts forward facts which establish a genuine dispute as to whether GSA's actions made it impossible for Maron to prepare and to update a CPM schedule. In addition, GSA disputes that it led Maron to believe that Maron did not have to comply with the contract's requirement to provide a CPM schedule. Respondent's Statement of Genuine Issues 65, 105, 107. We deny this portion of Maron's motion for summary relief because there are genuinely disputed material facts. c. GSA Contract Violations Finally, Maron says that we should disregard section 01311- 1.8D when we review its request for early completion delay damages because several GSA contract violations bar GSA from using that section. Specifically, Maron says that GSA breached all of the material scheduling provisions contained in the contract, unreasonably denied Maron access to the work, provided defective specifications and inadequate architect/engineer support, withheld superior knowledge from Maron, and made cardinal changes to the work required by the contract. Appellant's Renewed Motion at 52-75. In this section of its motion, as in other sections, Maron says that GSA-directed changes delayed Maron's progress. Maron makes this same argument in its reply brief. Appellant s Brief in Reply at 27-30. Before we address the merits of Maron's argument, we want to comment briefly about the concepts of change and delay in order to reduce the possibility of confusion during later proceedings in this appeal. If GSA made a change pursuant to the Changes clause and if the change caused an increase in the time that Maron needed to complete the work required by the contract, then GSA was required to make an equitable time adjustment. Reading the Changes clause as it is written, a change does not result in a delay. See 32 Fed. Reg. 16,269 (1967). If a delay occurred, the parties' rights and obligations are governed by the Suspension of Work clause or the Default clause, and not by the Changes clause. We realize that these distinctions are sometimes blurred and that some delays have been held to amount to changes and vice versa, but we ask the parties to characterize accurately whether they are discussing changes or delays as we continue with this appeal. Turning to Maron's first point, that GSA breached all of the material scheduling provisions included in the contract, Maron has not persuaded us that it is entitled to judgment as a matter of law. Although Maron characterizes GSA's actions as a breach of contract, GSA's actions could also be fairly characterized as amounting to either changes or delays, instead of a breach. In addition, even if GSA's actions amounted to a breach, Maron has not cited us to any authority which establishes that an appropriate remedy would be to bar GSA from utilizing section 01311-1.8D in its defense of this appeal. Four of the five cases cited by Maron in support of barring GSA from using section 01311-1.8D concerned contract clauses which precluded contractors from recovering damages. These cases are unlike our case because section 01311-1.8D does not preclude Maron from recovering damages. The one case that concerned a clause similar to section 01311-1.8D is Montgomery-Ross-Fisher, Inc., PSBCA 1033, 84-2 BCA 17,492. Maron says that the board there allowed the contractor to recover for delay even though the delay did not exceed total float. To the contrary, the board in that case found that performance of critical path work was delayed and the critical path, by definition, had no float available. Allowing GSA to rely upon section 01311-1.8D in defending against Maron's claim does not conflict with any of the cases cited by Maron, and the cases cited by Maron do not establish that, as a matter of law, we should bar GSA from relying upon section 01311-1.8D when we consider Maron's request for early completion delay damages. Maron's remaining points are that GSA unreasonably denied Maron access to the work, provided defective specifications and inadequate architect/engineer support, withheld superior knowledge from Maron, and made cardinal changes to the work required by the contract. As a result, says Maron, we should bar GSA from utilizing section 01311-1.8D in order to defend against Maron's claim for early completion delay damages. In essence, Maron s argument seems to be that GSA should not be permitted to use available float in order to absorb delay, as permitted by section 01311-1.8D, because GSA caused the delay. Maron never explains, however, why the use and application of section 01311- 1.8D should depend upon who caused a delay. The provisions of section 01311-1.8D are no different from general legal principles that apply in the absence of such contract language. Regardless of section 01311-1.8D, if float is available for an activity, then that activity is not on the critical path and a delay to that activity will not increase the amount of time required to complete the contract, and float can absorb that delay. Maron has not established that, as a matter of law, we should depart from these general legal principles and bar GSA from relying upon section 01311-1.8D when we consider Maron's request for early completion delay damages. We deny Maron's motion for summary relief, in part, because Maron has not established that it is entitled to relief as a matter of law, even if we were to assume that all of the facts are as stated by Maron. B. Early Completion In Interstate General Government Contractors v. West, 12 F.3d 1053 (Fed. Cir. 1993), the contractor wanted to establish that it was entitled to recover extended home office overhead, even though it finished within the time permitted by the contract. The contractor claimed that it would have completed the contract work earlier than it did, but for Government-caused delays. The court of appeals explained that in order for the contractor to succeed, it was required to establish that from the outset of the contract it 1) intended to complete the contract early, 2) had the capability to do so, and 3) actually would have completed early but for the Government's actions. The Court decided that, as a matter of law, the contractor could not establish that it met any of the three requirements. There was no evidence that, when it prepared its bid, the contractor planned to finish early. There was no evidence to establish that, when it prepared its bid, the contractor formulated a feasible plan to finish early. As for the third requirement, the Court explained that there was no nexus between the Government s delay and the contractor s failure to finish early, and that post-facto, conclusory, self-serving statements were not sufficient to establish that the contractor fulfilled this requirement. 1. GSA's Motion GSA relies upon several facts to show that Maron did not have any intent to complete work before April 20, 1995. Maron's vice-president notified GSA's auditor, in writing, that Maron's as-bid anticipated performance period was the full contract performance period. Maron bid a period of seventy-eight weeks for general cleaning and eighteen months for dumpster costs at the project site, which is approximately the entire performance period. Although Maron's vice-president had an idea that he would finish the contract early, he always had this idea when he submitted bids for contracts. Respondent's Statement of Uncontested Facts 5-8. In response, Maron relies largely upon an affidavit submitted by its vice-president, Thomas Maron.[foot #] 2 He says that Maron developed a conservative, successful bidding system. Using this system, Mr. Maron says that Maron carried some costs for some activities until April 20, 1995, which accounts for the information that Maron provided to GSA's auditor and for the bid period for general cleaning and dumpster costs. Mr. Maron also says that Maron planned to complete the project early, and that Maron's plan for completing projects early usually works well. Exhibit M-255. Maron's evidence is sufficient to show that there is a genuine dispute concerning whether Maron intended to complete the project earlier than April 20, 1995, and this is a material fact. GSA also contends that Maron did not have the capability to complete work before April 20, 1995, because the original schedule submitted by Maron, which contained an early completion date, was deficient in many ways and so does not show that Maron was capable of completing the contract before April 20, 1995. GSA notes that on July 26, 1994, Maron submitted a schedule showing a contract completion date of April 20, 1995, which GSA takes as a concession by Maron that it could not complete the work early. Respondent's Statement of Uncontested Facts 13- 14. The evidence that GSA relies upon to support its contention that Maron's original schedule was deficient is a two-page memorandum that states that certain issues concerning the schedule "ha[d] been addressed" and then lists several items which appear to have been problems with the schedule. The memorandum identifies the problems only in very general terms and does not explain either how serious the problems were or whether any or all of those problems reflected upon Maron's capability to finish before April 20, 1995. Exhibit 133. As for the fact that Maron's July 26, 1994 schedule shows a completion date of April 20, 1995, Mr. Maron explains in his affidavit that Maron submitted this schedule only after GSA said that it would not approve a schedule that contained any other finish date. Exhibit M-255. The evidence is sufficient to show that there is a genuine dispute concerning whether Maron was capable of ----------- FOOTNOTE BEGINS --------- [foot #] 2 Maron also relies upon documents that were developed and events that occurred months after GSA awarded the contract. As the court of appeals made clear in Interstate __________ General, relevant evidence is that which existed at the outset of _______ the contract. ----------- FOOTNOTE ENDS ----------- completing the project earlier than April 20, 1995, and this is a material fact. GSA's motion is denied, in part, because there are material facts in dispute. 2. Maron's Motion Maron says that it had the intent and the capability to perform the work early and would have done so, but for GSA's delays. Maron's evidence, although sufficient to avoid summary relief in favor of GSA, is not sufficient to show that Maron is entitled to summary relief. The most persuasive piece of evidence offered by Maron to support its position is the original schedule that it submitted to GSA, but that schedule was developed months after contract award and so does not shed any light upon what Maron intended from the outset of the contract. Exhibit M-14. In addition, the two-page memorandum, discussed above, that GSA relied upon in order to establish that Maron lacked the capability to finish early is sufficient to create a genuine dispute as to whether the original schedule was defective. Exhibit 133. Mr. Maron's affidavit, although sufficient to avoid summary relief in favor of GSA, does not establish that Maron intended to finish early, was capable of finishing early, or would have finished early but for GSA s delays. Maron does not explain precisely when delays occurred, what work was delayed for what length of time due to those delays, or whether that work affected the critical path. Exhibit M-255. Maron's motion is denied, in part, because there are material facts in dispute. II. Eichleay Damages When a contractor prepares a bid for a Government construction project, the contractor usually assumes that if it performs the contract successfully, the contract price will be sufficient to allow the contractor to recover its direct costs and some portion of its home office overhead costs. When the Government suspends or delays a contractor's work, the contractor's expenditures for direct costs are reduced or perhaps stopped altogether. The contractor's home office overhead costs, however, continue to accrue even though work on the contract has slowed or stopped. Courts and boards have developed a method for determining whether and to what extent a contractor can recover extended or unabsorbed home office overhead costs when the Government suspends or delays the contractor's work. This method is referred to as the Eichleay method, referring to the decision in Eichleay Corp., ASBCA 5183, 60-2 BCA 2688, aff'd on reconsideration, 61-1 BCA 2894. Maron s claim includes a request for Eichleay damages for both Maron and Kendland. Both parties move for summary relief concerning this portion of the claim. In order to prove entitlement to Eichleay damages, Maron must establish 1) that GSA caused a delay or suspension of an uncertain duration, 2) that GSA required Maron to remain ready to perform during the period of delay or suspension, and 3) that Maron was unable to take on other work due to the delay or suspension. Maron can establish a prima facie case that it is entitled to Eichleay damages if it proves the first two elements. If Maron does so, then the burden shifts to GSA to produce evidence or argument showing that Maron did not suffer any adverse economic impact due to GSA's actions because Maron could have taken on other work during the delay period. If GSA makes such a showing, Maron must then prove the third element, that the delay or suspension prevented it from taking on other work. Mech-Con Corp. v. West, 61 F.3d 883 (Fed. Cir. 1995). In Satellite Electric Co. v. Dalton, 105 F.3d 1418 (Fed. Cir. 1997), the court of appeals decided that the agency made a satisfactory showing that the contractor could have taken on other work during a delay period by establishing that Satellite Electric submitted bids on forty-nine projects during two periods of suspension that lasted a total of 228 days. The court of appeals explained that it was reasonable to infer that Satellite Electric had the capacity to perform whatever work it could have obtained as the result of its bidding efforts, and that the agency's evidence was sufficient to show that Satellite Electric did not suffer any adverse economic impact due to the suspension. The court also explained that it was irrelevant whether the contractor actually took on any of the work for which it bid. Satellite Electric did not prove that it was unable to take on other work due to the agency's delay. Although Satellite Electric's bonding company apparently imposed some limitations, the court found that this was not the result of the agency's delay. The court held that Satellite Electric was not entitled to Eichleay damages. GSA argues that even if Maron can make a prima facie case that it is entitled to Eichleay damages, it cannot prove that any GSA delay caused either Maron or Kendland to be unable to take on other work.[foot #] 3 Respondent's Motion at 10-16. GSA points out that Maron and Kendland bid for significant amounts of work from December 1993, when Maron began work, until mid-October 1995, when Maron substantially completed work. During this time, Maron submitted bids for approximately 240 projects worth nearly $125 million, and Kendland submitted bids for approximately 105 projects. It is reasonable to infer that Maron and Kendland would not have submitted any of these bids unless they were prepared and able to perform the work that would have been required by the contracts. This conclusion is supported by the fact that Maron's bonding capacity did not ----------- FOOTNOTE BEGINS --------- [foot #] 3 In its motion, GSA does not concede that Maron can make a prima facie case that it is entitled to Eichleay _____ _____ ________ damages. ----------- FOOTNOTE ENDS ----------- decrease from January 1993 through December 1995, and Kendland's bonding capacity increased between 1993 and 1994. Although Kendland's bonding capacity was restricted in 1995, this was due to financial losses sustained by a related business activity. GSA's showing is sufficient to require Maron to make a showing that it and Kendland were unable to take on other work due to the delay that it contends was caused by GSA.[foot #] 4 In its brief, Maron does not set out any facts to show that either it or Kendland was unable to take on other work due to GSA-caused delays. Instead, Maron devotes its brief to criticizing the third element of the Eichleay test, calling it "irrational," "a unique anomaly," "lacking in rationality," "a basic violation of due process," and "a plain error of law." Appellant's Renewed Motion at 102-03. We reject Maron's criticisms for two reasons. First, it is not irrational, anomalous, etc. to require a litigant requesting damages to establish that it was, in fact, damaged by the conduct of the opposing party. Second, and more important, our court of appeals requires contractors seeking Eichleay damages to prove the third element of the Eichleay test where, as here, the Government makes a satisfactory showing that the contractor could have taken on other work during the delay period. In its statement of genuine issues, Maron cites us to some of its interrogatory responses. We reviewed those responses to see if they show that there is a genuine dispute as to whether either Maron or Kendland was able to take on other work due to GSA-caused delays. We read Maron's responses in a light most favorable to Maron and we drew all reasonable inferences from the evidence contained in those responses in Maron's favor in order to determine whether a genuine dispute exists as to any material fact. Maron has done just enough to avoid GSA's motion for summary relief, because some of Maron's interrogatory responses set out facts to show that there is a genuine dispute as to whether Maron was able to take on other work. For example, in response to interrogatory 20, Maron says that it was prevented from bidding on other contracts due to the "special administrative and operational burdens" caused by GSA's delay. Maron also says that it was "barred" from bidding on new projects because GSA's delays consumed "administrative and contract management resources" and "forced Maron's key personnel to spend an inordinate amount of time managing this Project." Maron says that it did not have time to identify bidding opportunities. Exhibit M-254 at 13-14. Similarly, in response to interrogatory 33, Maron says that ----------- FOOTNOTE BEGINS --------- [foot #] 4 In order to avoid summary relief in favor of GSA, Maron must merely "show" that it was unable to take on other work. Rule 8(g)(4). In order to succeed on the merits, Maron must prove by a preponderance of the evidence that it was unable to take on other work. ----------- FOOTNOTE ENDS ----------- Kendland was prevented from bidding on other contracts due to the "special administrative and operational burdens" caused by GSA's delay. Exhibit M-254 at 23-24. Finally, also in response to interrogatory 20, Maron says that GSA's delays caused Maron's bonding company to refuse to provide Maron with a bond for a $15 million project in September 1994. Exhibit M-254 at 13. Both motions for summary relief are denied, in part, because there is a genuine dispute of material fact concerning whether Maron and Kendland were able to take on additional work. III. Second Floor Tie-In Drawings Maron explained in its claim that the mechanical, electrical, and plumbing work that it was required to perform on the first and third floors of the Pastore Building had to be tied together by running the work through an empty second floor. Maron asserted that GSA delayed Maron's progress by waiting until March 7, 1995, to provide Maron with second floor tie-in drawings. Exhibit 217 at 26-29. Maron moves for summary relief concerning the second-floor tie-in drawings. Maron says that it needed those drawings in order to fill in the gaps between the first and third floor mechanical, electrical, and plumbing systems.[foot #] 5 Appellant's Renewed Motion at 93-99. Maron's factual support for the proposition that it needed tie-in drawings consists of statements made by Maron during the course of performance, an opinion offered by a consulting firm that participated in the Pastore project, and an opinion offered by Maron's vice- president. Exhibits 160, 162, 164, 168, M-255. In response to Maron's motion, GSA says that the contract required Maron to perform tie-in work and that Maron did not need tie-in drawings to perform the work. Respondent's Opposition at 25-26. GSA's factual support of its position is found in its interrogatory responses. GSA says that the contract required Maron to employ someone to coordinate all mechanical and electrical work, and that Maron should have been able to perform the tie-in work by using drawings that had previously been made available. GSA says that the tie-in drawings that GSA gave to Maron on March 7, 1995, duplicated significant portions of drawings that were already available to Maron and were not necessary. Exhibit M-253 at 13. GSA's evidence is sufficient to ----------- FOOTNOTE BEGINS --------- [foot #] 5 In this section of its brief, Maron also alleges that GSA breached its duty to cooperate with Maron by not providing adequate architect/engineer services. Maron's brief does not state any specific facts to support this allegation. If Maron meant for this part of its brief to set out an argument for summary relief separate from the second floor tie-in drawings argument, we deny this portion of Maron's motion based upon the lack of supporting uncontested facts. ----------- FOOTNOTE ENDS ----------- show that there is a genuine dispute as to whether Maron needed second floor tie-in drawings, and this is a material fact. We deny Maron's motion for summary relief, in part, because there are material facts in dispute. Decision Both parties' motions for summary relief are DENIED. __________________________________ MARTHA H. DeGRAFF Board Judge We concur: ______________________________ __________________________________ ROBERT W. PARKER EDWIN B. NEILL Board Judge Board Judge