Board of Contract Appeals General Services Administration Washington, D.C. 20405 _________________________ DENIED: September 30, 1999 _________________________ GSBCA 14149 PROGRAM AND CONSTRUCTION MANAGEMENT GROUP, INC., Appellant, v. GENERAL SERVICES ADMINISTRATION, Respondent. Leonard A. White and Julia A. Novina, Bethesda, MD, counsel for Appellant. Joseph McCann, Office of General Counsel, General Services Administration, Washington, DC, counsel for Respondent. Before Board Judges PARKER, NEILL, and GOODMAN. NEILL, Board Judge. In this case, appellant, Program And Construction Management Group, Inc. (PCMG), seeks to be compensated for various time extensions allegedly called for by the General Services Administration (GSA) under a contract it entered into with PCMG for the upgrade of the fire safety system in three buildings occupied by the Department of State. For the reasons set out below, we deny the appeal. Findings of Fact The Solicitation and Preaward Negotiations 1. In early 1994, GSA issued Solicitation No.GS-11P-94-MKC- 0034 (the solicitation) for miscellaneous fire safety repairs at the Department of State building complex at 2430 E Street, N.W., Washington, D.C. Appeal File, Exhibit 1. 2. The solicitation required that the contractor start work within one calendar day after receiving the notice to proceed, proceed diligently, and complete the entire work no later than 252 calendar days after receipt of the notice to proceed. The time stated for completion included final cleanup of the premises. Appeal File, Exhibit 1 at 151. 3. The solicitation contemplated award of the contract to the Small Business Administration (SBA) for subsequent award to PCMG as a small business subcontractor under section 8(a) of the Small Business Act. Appeal File, Exhibit 3 at 8. 4. The contracting officer testified that during the negotiations with PCMG prior to award, the Government's cost estimator advised PCMG representatives that he believed the contract could be performed within 180 days rather than 252 as stated in the solicitation. The contracting officer further testified that it was, therefore, agreed that negotiations would be based on a contract completion date of 180 rather than 252 days. Negotiations did in fact proceed on that basis. Transcript, Vol. II at 64-65, 117-18. 5. Appellant's president and vice president both testified that the contract was in fact negotiated on the basis of a 180- day contract completion period. Transcript, Vol. I at 29-30, 164. Both, however, contend that they had little choice in the matter. The president stated that this reduction in the performance period was "imposed on us." In his opinion, the reduction in the length of the performance period was made in order to reduce the overall cost of PCMG's proposal. He did not personally believe that the project could be completed in that period of time. Id. at 29-30. PCMG's vice president was of the same opinion and testified that he advised the Government's cost estimator that the 180-day period was unrealistic and predicted that this would become apparent as work progressed. He too testified that PCMG had no choice in the matter. He states that he feared that if PCMG refused to negotiate on the basis of 180 days, the job would be lost. Id. at 164-65. PCMG's proposal was, therefore, revised to reflect the shorter performance period. Id. at 30. 6. PCMG's initial proposal was priced at $733,771. The best and final offer, following audit of the initial proposal and negotiations, was for $532,454. Appeal File, Exhibits 5, 40. 7. By letter dated October 3, 1994, the contracting officer advised SBA that PCMG's best and final offer of $532,454 was accepted. The letter was accompanied by signed copies of the contract between GSA and SBA and the 8(a) contract, i.e. subcontract, between SBA and PCMG (standard form 1442). The contracting officer requested SBA to return two fully executed copies of each contract. Attached to this letter, as found in the record, is a separate sheet with approval signatures. A note at the bottom of this page states that contract completion will be within 180 calendar days from date of receipt of the notice to proceed. Appeal File, Exhibits 5-6. 8. The SBA contracting officer signed both contracts on November 11, 1994. Both state that the contractor shall begin performance within one calendar day and complete it within 252 calendar days after receiving notice to proceed. The performance period is said to be "mandatory" and not "negotiable." Both contracts provide that they are to be administered and paid by GSA. Appeal File, Exhibit 5. 9. The GSA contracting officer issued to PCMG the notice to proceed on December 8, 1994. The notice states: "The contract provides that all work shall be completed within 180 calendar days after date of receipt of notice to proceed." On the same date, PCMG's president acknowledged receipt of the notice by signing the same. Appeal File, Exhibit 7. 10. By certified letter dated December 12, 1994, the contracting officer advised PCMG that the notice to proceed was effective as of December 9, 1994; that the contract completion time was 180 days after receipt of the notice to proceed; and that the contract completion date was, therefore, June 7, 1995. Appeal File, Exhibit 8. 11. The agenda for a preconstruction conference scheduled for December 19, 1994, likewise states that the contract performance time is 180 days. It sets the contract completion date at June, 7, 1995, but notes that there are no liquidated damages. Appeal File, Exhibit 15. Contract Modification AS-01 12. During the months of December 1994 and January and February 1995, PCMG submitted a total of fifty-two requests for information (RFIs). Appeal File, Exhibits 49, 50, 53, 56, 57, 59, 65, 67. The issues raised by these RFIs eventually led to the first formal change order under PCMG's contract, namely, contract modification AS-01. The net amount agreed upon for this modification represented a total of $6304 in reduced costs, i.e., credits for deductive changes, and $15,385 in direct costs for additive changes. After markup for overhead, general and administrative costs (G&A), profit, and bond, the net total increase in contract price came to $14,688. Modification AS-01 also extended the contract performance period by thirty days, thus changing the contract completion date from June 7, 1995, to July 7, 1995. Appeal File, Exhibits 9, 10, 74. 13. A final provision in the text of modification AS-01 reads: Settlement of this change includes all costs, direct, indirect, impact and delay associated with this change order. Appeal File, Exhibit 10. The modification was signed by PCMG's president on April 19, 1995 and by the contracting officer on May 3, 1995. Id. Contract Modification AS-02 14. By letter dated August 7, 1995, the contracting officer advised PCMG that her notice to proceed issued on December 8, 1994, and her certified letter of December 12, 1994 (Findings 9- 10) regarding the notice were in error. She explained that, in accordance with the solicitation provisions, the contract completion time should have read 252 calendar days after the receipt of notice to proceed. Accordingly, the contracting officer provided PCMG with a revised completion date of August 18, 1995, based upon a contract completion time of 252 rather than 180 days. Appeal File, Exhibits 10, 97. 15. On August 11, 1995, the contracting officer issued unilateral contract modification AS-02. This was a unilateral modification which referred to the contracting officer's recent letter of August 7 regarding the contract completion time and the completion date. The modification, however, noted that the contract completion date of August 18 given in the letter of August 7 was incorrect because it did not take into account the thirty-day extension provided for in AS-01. The revised contract completion date, according to modification AS-02, therefore, was said to be September 17, 1995. 16. The contracting officer testified that this change in the contract completion date came about once it was discovered that the solicitation actually provided for a contract performance time of 252 days. On learning this, she directed her staff to look into the question of whether the 180-day estimate for completion time, which had served as the basis for negotiations, was in fact in error. The conclusion reached was that it was an error and the contract completion time should be 252 days. Transcript, Vol. II at 118-19. At trial, the following exchange took place between counsel for appellant and the contracting officer: Q. But isn't it true . . . that the contract duration is an integral part of the contract, as much as the scope of work; isn't that a fact? A. Yes, that is true. And later we realized that we needed to compensate the contractor for the additional 72 days, and thus a change order and negotiations took place. Id. at 66. 17. The GSA construction engineer assigned to the PCMG contract (hereinafter the construction engineer) testified that shortly after AS-02 was issued, extending the contract performance period for an additional seventy-two days, PCMG officials advised him that they believed the contractor was entitled to compensation for this change. He states that he invited them to submit a proposal for his review. Transcript, Vol. II at 133. 18. At a conference with PCMG representatives on November 17, 1995, GSA offered the contractor $10,800 as compensation for the seventy-two days added to the contract completion period. PCMG rejected the offer, but shortly thereafter, on November 21, 1995, submitted its own proposal for compensation in the amount of $27,748. This included $16,777 in direct labor costs and burden for the project manager, the estimator, and the field superintendent during the seventy-two-day period. The proposal also sought reimbursement of various other on-site or field overhead costs incurred during the same period, such as telephone costs, gasoline costs, rental costs for a storage trailer, a pick-up truck, and an auto used by the office/project manager and engineer. These other costs came to a total of $1867. The total of all the listed costs, $18,644, was marked-up to $27,748 through the addition of overhead (20%), G&A (10%), profit (10%), and bond fee (2.5%). In making this proposal, PCMG also suggested an alternative approach for calculating compensation for the additional seventy-two days. It suggested dividing the general condition costs (i.e., burden, overhead, G&A, profit, and bond fee) of the original contract by the 180-day contract period to arrive at a daily cost which could then be multiplied by seventy-two. Respondent's Trial Exhibit 6; Transcript, Vol. II at 136. 19. The GSA construction engineer testified that during the next year there were occasional meetings between GSA and PCMG representatives to resolve various pending matters including the question of compensation of PCMG for the seventy-two-day extension. Transcript, Vol. II at 175-82. This latter problem was, in the words of the engineer, "a major obstacle." Id. at 177. PCMG was reluctant to agree to compensation based on the seventy-two-day extension without some similar compensation for the thirty-day extension provided for in AS-01. Id. at 178. PCMG's vice president does not recollect any meetings with GSA on this issue prior to the fall of 1996. Id., Vol. III at 100. 20. In the fall of 1996, GSA made a counterproposal to PCMG's proposal of $27,748. By letter dated November 20, 1996, the GSA construction engineer wrote to PCMG: A determination has been made that additional compensation is required in this matter [of the seventy-two-day extension]. GSA has determined that compensation should be made to PCMG on extended office overhead with the appropriate markup in the amount of $21,634 along with 72 calendar days added to your contract duration. Appeal File, Exhibit 113. The letter also referred to PCMG's request to renegotiate AS-01 for additional extended overhead. The request was denied on the ground that overhead, G&A, and profit for the additional work was included in the $14,680 already agreed on and signed by all parties on April 11, 1995. Id. 21. GSA's counterproposal of compensation for the seventy- two-day extension followed the same basic format of PCMG's original proposal of November 21, 1995 (Finding 18). The counterproposal was prepared by GSA's construction engineer. He testified that he reviewed the certified payrolls used by PCMG to construct its labor costs and eliminated all overtime included in the original proposal. This led to a reduction of the claim for labor and burden from $16,777 to $13,611. As to the other costs claimed, after discussing them in detail with PCMG's vice president, he disallowed the cost claimed for the office/project manager, allowed the costs of the rented trailer, and reduced the claim for the pick-up truck, gasoline, and telephone. With regard to the telephone, he noted that PCMG never had a field office on site. For a considerable period of time, the superintendent had continued to use the Government phone in the construction engineer's office until he was expressly requested to make other arrangements. The final markup on the allowed costs for overhead, G&A, profit, and bond were the same as those used by PCMG in its original proposal of a year earlier. Appeal File, Exhibit 33; Transcript, Vol. II at 147-50. 22. The GSA construction engineer testified that, before advising PCMG in writing of his counterproposal, he discussed it in a telephone conversation with PCMG's vice president. This PCMG representative's reaction to the counterproposal was not unfavorable, but he indicated to the construction engineer that the company's acceptance of the proposed sum would be contingent upon agreement to similar compensation for the thirty days added to the contract under AS-01. Transcript, Vol. II at 151. 23. In his testimony, PCMG's vice president confirmed this account of the construction engineer and further explained that so long as GSA refused to discuss compensation for the thirty days added to the contract under AS-01, PCMG was not prepared to respond to the Government's counterproposal for compensation for the seventy-two days added to the contract by AS-02. Transcript, Vol. I at 171-72. Contract Modification AS-03 24. On June 26, 1995, GSA received from appellant a proposal for additional compensation for a variety of items and changes. The ensuing negotiations would eventually lead to another contract modification, AS-03. The Government's record of change order negotiations for this modification indicates that this first proposal from PCMG was for $21,378. This proposal was rejected. During the month of July, PCMG submitted two revisions of its proposal and met with GSA representatives to negotiate. Negotiations continued into the months of August and September. On September 19, 1995, PCMG submitted a third revised proposal. This proposal was for $12,223. On September 22, the parties met again for negotiation. At that time, the Government offered a final figure of $9000. This figure included the usual markup for overhead and G&A. Appeal File, Exhibits 104-105. On September 27, PCMG's president advised GSA s construction engineer that the $9000 figure was acceptable. Appeal File, Exhibit 104. He confirmed this in a letter dated September 27, 1995. The letter states: [W]e are accepting the change order no. 3 in the amount of $9,000.00. By the virtue of this change order we are requesting 4 weeks time extension from the date of approval of this change order. Id., Exhibit 13 at 4 (unnumbered). 25. In drafting the text of AS-03, GSA gave PCMG considerably more than the four weeks requested in the letter of September 27. The draft modification, when issued to PCMG for signature, provided for sixty-two rather than twenty-eight calendar days. Appeal File, Exhibit 109. It is not entirely clear how this occurred. The Government's original record of change order negotiations for AS-03 was written and signed by the GSA construction engineer and is dated October 31, 1995. Appeal File, Exhibit 104; Transcript, Vol. I at 32. It recommended a time extension of twenty-eight calendar days. This was said to be based, in part, on the fact that three of the eight changes required additional time and, in part, on delays already encountered by the contractor in attempting to work in highly secure locations. The State Department had required that work in these areas be done outside normal working hours or on weekends. In at least two instances the contractor had been denied access even on weekends. Appeal File, Exhibit 104. 26. This same record of change order negotiations has a number of handwritten modifications and additions. The GSA construction engineer, the author of the original report, testified that, in his opinion, these changes were made by the contracting officer's representative (COR) prior to approving the document on November 9, 1995. Transcript, Vol. II at 36. The changes in the text dealing with the time extension are particularly significant. The recommendation for a time extension is changed from twenty-eight days to sixty-two days. This is said to be based upon a need for twenty-eight days to accomplish three of the eight changes called for in the change order. The additional thirty-four days are said to be required in view of the delays in completing work at the highly secure locations. Appeal File, Exhibit 104. 27. PCMG's vice president testified that in early November 1995, a draft of modification AS-03 was sent to the contractor for signature. The modification increased the contract price by $9000, extended the contract for an additional sixty-two days, and advanced the contract completion date to November 17, 1995. This, according to the appellant's vice president, was the first notice his company received that the Government planned to extend the contract by an additional sixty-two days. Appeal File, Exhibit 109, Transcript; Vol. III at 82-83, 92, 95. 28. The recollection of the GSA construction engineer regarding the origin of the sixty-two-day extension is different from that of PCMG's vice president. The engineer testified that in early November, after agreement had been reached on the $9000 figure for AS-03, he called PCMG representatives in to see if it would be possible to negotiate a final settlement on AS-03. He stated that he was not pleased with the contractor's progress over the past three months and felt that PCMG was procrastinating. Because the contract lacked a liquidated damages clause, he considered it important to establish a date on which the contract could be deemed substantially complete. He further testified that the State Department, as the building tenant, was complaining that the project was not yet complete. Accordingly, he stated that, at this session, a calendar was brought out for the purpose of selecting a date for substantial completion of the contract. This witness testified that the contractor's representatives replied that they only had a "few items to complete." In addition, he recognized that some of the work called for under AS-03 had already been performed prior to this finalization session. It is the testimony of this witness that it was agreed that November 17 would be designated as the contract completion date and that the previously established contract completion date would, therefore, be extended by sixty- two days. This same witness also testified that, at this same meeting, he was given assurance by PCMG's president and vice president that they would "not come back on the government for these extra days." Transcript, Vol. II at 156-68. 29. The GSA contract administrator for the PCMG project testified that he had a similar recollection of this meeting with the contractor in November 1995. He recalled the parties consulting a calendar for purposes of determining a date for substantial contract performance. He understood the agreement between the construction engineer and PCMG's representatives, however, as being simply that no additional time would be sought by the contractor beyond the date agreed upon for substantial completion of performance. Transcript, Vol. III at 128-38. 30. It is not precisely clear from the record when the draft of AS-03 was presented to PCMG for signature. As noted, PCMG's vice president recollects that it was presented in early November 1995, prior to the revised contract completion date of November 17. Transcript, Vol. III at 83. What is clear, however, is that the PCMG was not disposed to sign the modification. PCMG's vice president testified that the $9000 previously agreed upon represented only the direct costs and markups associated with the changes called for in AS-03. This figure did not, in his opinion, include costs associated with the sixty-two day extension of the period of contract performance provided for in the draft modification. For this reason, the draft was put aside unsigned. Id. at 90-95. PCMG's Claim 31. PCMG's vice president testified that efforts made during November 1995 to recover overhead costs associated with the extensions of the contract under AS-02 (seventy-two days) and the proposed AS-03 (sixty-two days) met with no success. The matter, in his opinion, remained in "limbo" for approximately a year. Transcript, Vol. III at 98. 32. As already noted, in the fall of 1996, GSA made a counterproposal to PCMG's proposal of a year before regarding compensation for the seventy-two day extension under modification AS-02. Finding 20. PCMG's vice president testified that, as a business matter, the company was prepared to accept the counterproposal of $21,634, even though it was considerably less than the company's original proposal of $27,748. Acceptance, however, was linked to the condition that GSA pay similar compensation for the thirty-day extension provided for in AS-01. Transcript, Vol. I at 212-13. GSA rejected the request. Appeal File, Exhibit 113. 33. Completion of the appellant's contract did in fact languish beyond November 17, 1995. A construction progress report for November 15, 1995 states that the project was ninety- six percent complete. A report for October 1996 shows the project as only ninety-eight percent complete. Appeal File, Exhibit 118. The company's vice president testified that, in view of the various delays encountered, he had considered bringing a delay claim, but by late 1996, PCMG concluded that it would not pursue any delay claim. The company's vice president testified that he informed GSA representatives of this decision but is uncertain to whom he spoke on this matter. He believes it may have been the GSA construction engineer. Transcript, Vol. III at 106-07. 34. By letter dated December 16, 1996, however, appellant submitted to the contracting officer a certified claim for $149,331 for compensation for contract extensions. The claim consists of four basic parts: First is a claim for $104,304 for overhead and G&A as compensation for time extensions totaling 164 days, namely, thirty days for AS-01, seventy-two days for AS-02, and sixty-two days for AS-03. This part of the claim is based on a per diem rate of $636. To calculate the per diem rate, the claimant divided the sum of the overhead and G&A on its best and final offer by 180, i.e., the number of days in which the parties assumed the contract would be completed. The second part of PCMG's formal claim is for on-site or field overhead costs such as those sought in PCMG's proposal of November 21, 1995, regarding compensation for the seventy-two day extension, namely, the site superintendent's salary and burden and the costs associated with motor vehicles, gasoline, and telephone. In this claim of December 16, 1996, however, these costs are sought for a period of 164 days rather than 72. A third portion of PCMG's claim seeks the $9000 previously agreed upon for inclusion in AS- 03. The fourth and final portion of the claim involves various credit adjustments to which the claimant recognizes the Government is entitled. Appeal File, Exhibit 119. 35. The contracting officer failed to issue a decision on PCMG's claim of December 16, 1996. By letter dated April 9, 1997, PCMG filed with the Board an appeal from a deemed denial. After some initial delay, pleadings in the case were filed and the parties began pretrial discovery. Shortly thereafter, it was discovered that the contracting officer's files which had been forwarded to counsel's office were lost during the course of a move by counsel's office. Some time was lost as Government counsel attempted to reconstruct files from alternative sources. In May 1998, representatives of the parties met twice with the contracting officer to discuss the issues in the case. The meetings produced no results. Following the meetings, counsel for the Government advised the Board that the contracting officer was now at work on a decision regarding PCMG's claim. 36. On June 12, 1998, the contracting officer issued not one but three separate decisions. Two of the decisions purport to deny PCMG's claim for $149,331, but none of them deals with the claim in its entirety. One decision discusses the issue of the contractor's compensation as a result of the seventy-two day extension provided for in AS-02. The decision concludes that the Government's counter offer of $21,634 is fair and reasonable. A second decision concerns modification AS-03 and concludes that the contractor is entitled to no more than the $9000 previously proposed by GSA. A third decision concerns a modification issued by GSA after PCMG submitted its claim of December 16, 1996. This is modification AS-04. The contracting officer notes that this modification was issued in February 1997 and concerns agreement reached on certain changes which are not involved in the contractor's claim for $149,331. Because of the pending disputes regarding modifications AS-01, AS-02, and AS-03, PCMG had declined to sign modification AS-04. Appeal File, Exhibit 115. 37. Attached to each of the three decisions issued by the contracting officer on June 12, 1998, was a signed unilateral contract modification which memorialized the contracting officer's position as outlined in each respective decision. These modifications were subsequently withdrawn in favor of bilateral modifications executed by the parties with the consent of the Board. One bilateral modification dealt with the compensation of PCMG for the seventy-two-day extension. It provided for payment of $21,634 but recognized PCMG's right to press for additional compensation in this appeal. The second bilateral modification provided for the sixty-two day extension of the contract and payment of $9000 to the contractor as previously proposed for modification AS-03. This modification likewise recognized PCMG's right to press for additional compensation. The third modification signed by the parties is that which established certain credits which the parties previously agreed were due to GSA. It is not part of this case. Appeal File, Exhibit 116. 38. As this case has progressed, appellant has modified its original claim. The daily rate formula of $636 originally used to calculate compensation for the time involved in the extensions totaling 164 days, is now applied by appellant to only the seventy-two-day extension occasioned by modification AS-02. For the time involved in the remaining ninety-two days, PCMG seeks only to recover unabsorbed home office overhead. In testifying on this revision of the claim, appellant s vice president explained that he used the Eichleay[foot #] 1 formula to calculate a daily rate not because he had an Eichleay-type claim for Government imposed delay but simply because he found this type of calculation to be a fair method for determining the allocation of unabsorbed overhead. Transcript, Vol. I at 224. PCMG's claim, as amended, now amounts to $107,357. Appellant's Trial Exhibits 3, 3a; Transcript, Vol. I at 198-205; Vol. II at 44-49. Discussion We turn first to the major portion of appellant's claim, namely, the request to be compensated for the time extensions totaling 164 days. As revised, this includes a claim for unabsorbed home office overhead for a total of 92 days and both home office and field overhead for 72 days. For several reasons we find the claim without merit. Our fundamental problem with the claim is the use of a constructive daily rate as opposed to a fixed percentage markup of direct costs incurred. For the thirty days provided for in modification AS-01 and for the sixty-two days proposed for modification AS-03, appellant has used a daily rate based upon the methodology used to compensate contractors for Government delay under the Eichleay formula. Finding 38. For the seventy- two day extension authorized under the original unilateral AS-02, PCMG's daily rate is based upon the total of field overhead and G&A, as shown in its best and final offer, divided by 180, ----------- FOOTNOTE BEGINS --------- [foot #] 1 The Eichleay formula was devised by the Armed Services Board of Contract Appeals to calculate reimbursable home office overhead costs in the event of suspension of work on a contract. Eichleay Corp., ASBCA 5183, 60-2 BCA 2688, aff'd on ______________ ________ reconsideration, 61-1 BCA 2894. _______________ ----------- FOOTNOTE ENDS ----------- namely, the number of days the parties assumed would be required to perform the contract. Findings 34, 38. The use of a daily rate to compensate a contractor for unabsorbed overhead for pure contract extensions was discussed at some length by our appellate authority in C.B.C. Enterprises, Inc. v. United States, 978 F.2d 669 (Fed. Cir. 1992). In that decision, C.B.C. argued that a contractor is entitled to use the Eichleay daily rate formula to recover extended home office overhead for delays, suspensions or extensions of contract performance caused by the Government. The Court of Appeals for the Federal Circuit, however, concluded that the Eichleay formula could not be used for pure extensions. It explained that use of an estimated daily rate to compute extended home office overhead is an extraordinary remedy specifically limited to contracts affected by Government-caused suspensions, disruptions, and delays of work. In such situations the use of a fixed percentage formula to compensate for home office overhead is rendered inadequate or "absurd", since the flow of revenue from direct costs -- a percentage of which goes towards recovery of home office overhead -- is simply cut off or substantially reduced. Id. at 671, 675. In C.B.C., the Court concluded it was inappropriate to use the Eichleay formula to calculate home office overhead for contract extensions because adequate compensation for overhead expenses may usually be calculated more precisely using the fixed percentage formula. Given the explanation supporting the Court's conclusion, we find appellant's attempts in this case to estimate and recover home office overhead and (in the case of the seventy- two day extension) indirect contract costs using an Eichleay-type or other daily rate formula instead of a fixed percentage formula impermissible. It is clear from this and related decisions, that there is an obvious preference for the use of a fixed percentage formula, or at least some variation of it, to provide for overhead in contract modifications. A claimant attempting to convince a court or board to abandon this type of approach in favor of a daily rate formula faces a formidable burden. In this case, appellant has failed to meet this burden. In their posthearing brief, counsel for appellant argue that the fixed percentage formula is not sufficient because it applies only to changed work and not to the unchanged work. Accordingly, in the event of contract extension, the home office overhead relating to the unchanged work is diluted, and the benefit of the bargain originally agreed to is inevitably altered. PCMG's Posthearing Brief at 22-29. Appellant's case for the use of a daily rate formula might be stronger if it could prove the correctness of its major premise, namely, that the fixed percentage formula applies only to changed work. In this case it has failed to do so. Furthermore, we have serious doubt as to whether such a distinction is even viable in the context of home office overhead which, by its very nature, is composed solely of costs never attributable to or caused by any one contract. Indeed, as our appellate authority has also observed, "[a] claim to 'directly attributable' home office overhead is a non sequitur." Wickham Contracting Co. v. Fisher, 12 F.3d 1574, 1578 (Fed. Cir. 1994). In each of the extensions involved in this appeal, the parties have used (as in modification AS-01) or discussed using (as in modifications AS-02 and AS-03) the fixed percentage formula to compensate appellant for home office overhead and contract overhead. Findings 12, 18, 21, 24. Appellant has failed to convince us that this preferred method of compensating the contractor is inadequate for the purpose. We, therefore, decline to grant relief using either of the daily rate formulas proposed. Our other reasons for rejecting appellant's claim of compensation for the time involved in the three contract extensions involved in this case are best discussed in the context of each modification. The claim relating to the thirty days added to the contract performance period by modification AS- 01 likewise fails for the reason that a contract modification providing for the additional thirty days was signed by both parties and contained express language which precluded appellant from claiming anything more than what was agree upon in the signed modification. Finding 13; see Twigg Corporation v. General Services Administration, GSBCA 13901, 98-1 BCA 29,569, at 146,587; Centennial Leasing v. General Services Administration, GSBCA 11451, 93-1 BCA 25,350, at 126,266 (1992); Jordan & Nobles Construction Co., GSBCA 8349, et al., 91- 1 BCA 23,659, at 118,514 (1990). We cannot fault GSA for refusing to reopen negotiations regarding AS-01. Finding 20. Counsel argue that PCMG signed the modification in reliance on an apparent misrepresentation by the GSA change order negotiator that compensation for the additional days was not within the scope of the change order. PCMG's Posthearing Brief at 20-22. Just what precisely transpired between PCMG representatives and this Government negotiator is not entirely clear. The negotiator was not called to testify. Nevertheless, the company representatives are experienced businessmen and whatever the assurances of the negotiator may have been, agreement to sign modification AS-01 with the express settlement language it contained clearly involved a significant risk which should have been obvious to any reasonable business person. Appellant cannot now expect to avoid the consequences of having freely taken that risk. PCMG took a similar risk when it agreed, against its better judgment, to negotiate with the Government based upon a performance period of 180 days rather than 252. While both the company president and vice president contend that they had little choice in the matter, the fact stands that they did ultimately submit an offer based upon a 180-day performance period. That offer was accepted. The evidence regarding the duration of PCMG's contract is in conflict. The parties conducted themselves for a considerable period of time as if it was 180 days. Findings 7, 9, 10, 11. Nevertheless, the solicitation and contract both state that it is 252 days. Findings 2, 8. For purposes of deciding this case, we see no need to address the issue. Appellant would not qualify for compensation in either situation. If the contract was for 180 days and appellant agreed to complete the work in that period, then it could hardly claim compensation for being given extra time for performance beyond that date. On the other hand, if the contract was for 252 days, appellant could hardly present a claim for performance of the final seventy-two days of its contract performance period. Perhaps, on the basis of mutual mistake, the contract could have been reformed. Nevertheless, the testimony of PCMG's witnesses suggests that they at least did not labor under the mistaken assumption that the contract could in reality be performed in 180 days. Finding 5. Fortunately for PCMG, the Government in this case did not insist upon compliance with the original agreement but rather agreed to extend the contract and to provide a reasonable compensation to PCMG for the extension. In addition to seeking compensation for the time involved in the three extensions of the contract performance period, PCMG's claim also includes a claim for certain direct costs associated with field overhead. Appellant seeks to recover for a total of 164 days, the site superintendent's salary, the rental costs for a storage trailer and pick-up truck, and the costs of gasoline and telephone service. Finding 34. We are unconvinced that appellant is entitled to compensation for any of these costs beyond what it has already received. So far as concerns these costs as they relate to the thirty- day extension provided for in modification AS-01, PCMG has already been given a markup for field overhead on the amount agreed to covering the many changes involved. In the absence of any persuasive argument that use of this fixed percentage formula was inadequate, we conclude that the adjustment for field overhead provided the contractor with all that it could expect under the contract. Furthermore, as already noted, in signing the contract with the settlement language it contained, appellant has relinquished any right it might have had to seek additional compensation. The situation with PCMG's field overhead claim for the seventy-two day extension is of course slightly different. In its first proposal for compensation, PCMG compiled a list of field or on-site overhead costs it considered to be associated with the seventy-two day extension and submitted them as direct costs together with the usual markups. It also suggested, as an alternative approach to compensation, the use of a daily rate formula. Finding 18. So far as format was concerned, the approach actually used by PCMG to present its claim, rather than the suggested alternative, was the correct format. A contractor who wishes reimbursement for a cost directly attributable to a contract must submit it as a direct cost. Wickham Contracting Co. v. Fisher, 12 F.3d at 1578-79. The GSA construction engineer followed the format of PCMG's proposal in making his counteroffer of $21,634. The explanations given by him at trial for his various reductions in the claim appear to us to have been reasonable and remained essentially unrebutted. As noted, this amount included markups for home office and field overhead which were the same as those used by PCMG in its original proposal for compensation submitted a year earlier. Finding 21. Through a bilateral modification signed by the parties subsequent to the docketing of this case, GSA has paid appellant the $21,634 offered by the construction engineer. PCMG has agreed to accept this amount but, in doing so, reserved the right to press for more in this appeal. Finding 37. Given the record before us, we are not convinced that PCMG is entitled to any more compensation than that which the Government proposed in its counteroffer and has since paid pursuant to the recently-signed bilateral modification. What of appellant's claim for field overhead expenses for the remaining extension of sixty-two days proposed in modification AS-03? PCMG would have us believe that this extension was totally of the Government's making and in no way represented an agreement between the parties. The testimony of the GSA construction engineer and contract administrator is in conflict with that of PCMG's vice president. Findings 27-29. Counsel for PCMG suggest that perhaps the recollection of the construction engineer relates rather to the assurances given by PCMG that it would not pursue a delay claim than to the duration of the sixty-two day extension. PCMG's Posthearing Brief at 32 n.12. This explanation might serve to resolve at least some of the apparent conflict in the testimony of these witnesses. In cases such as this, however, where present recollections are in conflict, we find it useful to turn to contemporaneous documentary evidence. The original draft signed at the end of October and the final version of the Government's record of change order negotiations signed by the COR on November 9, 1995, give no indication of PCMG involvement in the determination of how long this third extension should be. The final version of the record states that twenty-eight of the sixty-two days were to permit the contractor to complete the changes called for in the modification. The remaining thirty-four days were said to be required in view of delays encountered in completing work at highly secure locations. Findings 25-26. We accept this explanation as the most reliable. Appellant has repeatedly assured us that its claim is not one for Government-imposed delay, but rather, simply a claim for unpaid, compensable time extensions issued by GSA. Transcript, Vol. I at 212; PCMG's Posthearing Brief at 2, 22-23, 36-37. The final version of the Government's record of change order negotiations states that thirty-four days of the sixty-two-day extension were required as a result of delays. Since appellant has expressly advised that it is not seeking delay damages, any award of field overhead for this period of delay would obviously be inappropriate. As for the remaining twenty-eight days that are said to have been required in order to complete the changes called for in the modification, we can find no justification for allowing more than what the draft modification stated. The parties reached agreement on the direct costs associated with the changes called for in AS-03. That price included the usual markups for field overhead using the fixed percentage formula. Findings 24, 30. As stated with regard to modification AS-01, in the absence of any persuasive argument that use of this fixed percentage formula was inadequate, we conclude that the markup for overhead provided the contractor with all that it could expect under the contract. The amount in question, $9000, has since been paid to PCMG pursuant to a bilateral modification signed by the parties. Finding 37. Appellant has failed to convince us that it is entitled to any compensation for field overhead relating to the changes in question beyond that which has already been agreed to and paid. In short, we can find no basis for awarding appellant any G&A or field overhead beyond that which has already been offered and paid by GSA in conjunction with the three extensions of the contract performance period. Request for Sanctions Appellant asks that we impose sanctions on counsel for respondent based on his failure to provide relevant and material documents to appellant prior to hearing. In making the request, appellant does not accuse counsel of bad faith. Neither is there any claim of prejudice resulting from respondent's incomplete discovery request. Nevertheless, as a sanction for counsel's conduct, we are asked to give little or no weight to documents used by respondent in rebuttal of appellant's evidence. In his defense, counsel for respondent reminds us that the production of documents in response to requests from counsel for appellant was particularly difficult due to the accidental loss of the official contract file during the course of a move in the office of counsel. The Board agrees with counsel for appellant that, if the Government's management of discovery responses had been more efficient, not only counsel for appellant but also the Board itself would have encountered considerably less frustration. Nevertheless, since this inefficiency was, at least in part, due to an accidental loss of files and since counsel for appellant assures us that there has been no resulting prejudice, we deny the request for sanctions. Decision This appeal is DENIED. ____________________________ EDWIN B. NEILL Board Judge We concur: ___________________________ ____________________________ ROBERT W. PARKER ALLAN H. GOODMAN Board Judge Board Judge