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advanced facilities engineering topic 3 ­ variation from baseline armed services board of contract appeals appeals of all-state construction inc under contract no n62472-93-c-0396 appearances for the appellant barbara g werther esq glenn c kennett esq thelen reid priest llp washington dc fred a phelps esq navy chief trial attorney mark r wiener esq senior trial attorney asbca nos 50513 50516 54681 appearances for the government opinion by administrative judge freeman all-state construction inc all-state appeals the denial of its claims under a construction contract for additional compensation price and time adjustments in this decision we decide only entitlement and the number of days of excusable or compensable delay.1 findings of fact 1 on 30 september 1994 the government contracted with all-state for construction of a hazardous waste storage facility at the naval weapons station earle colts neck new jersey the contract price at award was $982,000 the specified contract completion date was 13 may 1995 r4-50513 tab 1 at 2 2 the contract included among other provisions the far 52.233-1 disputes dec 1991 clause the far 52.236-2 differing site conditions apr 1984 clause the far 52.243-4 changes aug 1987 clause and the far 52.249-10 default fixedprice construction apr 1984 clause r4-50513 tab 1 at 40-41 3 all-state s initial approved construction progress schedule showed work on-site starting during the week of 11 november 1994 r4-50513 tabs 3 4 work on-site however did not start until 14 february 1995 gov t supp r4 tab 90 at 1 this 1 all-state s appeal of the government s claim for liquidated delay damages asbca no 50831 was heard and briefed with these appeals however in light of the federal circuit s subsequent remand of our decision on all-state s default termination appeal asbca no 50586 johnson v all-state construction inc 329 f.3d 848 fed cir 2003 we are deferring decision on asbca no 50831 until our final decision on asbca no 50586 3-2

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advanced facilities engineering topic 3 ­ variation from baseline delay was caused by all-state s delay in submitting an acceptable quality control qc manual and by the government s delay in removing material from the site r4-50513 tabs 4 5 7 4 the contract at award required excavation of the building site to a depth of nine feet backfill to grade with select material and compaction r4-50513 tab 1 dwg c-3 it further required that surplus excavated material be stockpiled within 100 feet of the excavation tested for environmental contaminants and disposed off-site in accordance with the test results and federal and state regulations r4-50513 tab 1 specification § 02220 ¶ 3.8 5 the select material specification required that the material meet specified gradation sieve sizes and be free of organic material loam trash and other objectionable material r4-50513 tab 1 specification § 02220 ¶ 2.1.3 the contract boring logs showed that the material to be excavated contained organic material and loam r4-50513 tab 1 dwgs c-1 c-3 c-6 2 the common fill specification required the material to be compactable to the specified density for the location the suitability of both the select material and the common fill chosen by all-state was subject to approval by the contracting officer r4-50513 tab 1 specification § 02220 ¶¶ 2.1.1 2.1.3 at 234 6 on 24 february 1995 all-state tested the soil to be excavated for suitability as select material the test report dated 1 march 1995 confirmed the boring logs and found that the material did not meet the select material specifications the report noted however that any excavated material free of organic material loam and other objectionable material would meet the gradation sieve requirements if a minimum of 8 fine gravel were added gov t supp r4 tab 12 at 2 7 also on 1 march 1995 all-state tested the building site for polychlorinated biphenyls pcbs and total petroleum hydrocarbons no hazardous levels of those substances were found gov t supp r4 tab 94 an earlier test by the government in july 1993 also had found no pcb contamination gov t supp r4 tab 39 8 on 8 march 1995 all-state dug a test pit in the area to be excavated and found various types of debris including steel tin large cinder fragments creosote lumber and a refrigerator on the same day all-state submitted a written notice to the contracting officer claiming that the debris was a differing site condition also on the same day the debris was observed by representatives of the contracting officer gov t supp r4 tabs 7 90 at 17-18 2 all-state alleges that specification §02220 ¶ 3.3 states that the contractor is to reuse excavated materials app supp r4 tab 85 at 2253 this paraphrase omits an important qualification the full sentence on re-use states reuse excavated materials that meet the specified requirements for the material type required at the intended location r4-50513 tab 1 at 239 the cited specification does not represent that the excavated material would meet the select material requirement for backfill 3-3

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advanced facilities engineering topic 3 ­ variation from baseline 9 all-state performed no excavation from 11 march through 1 may 1995 its daily reports for this period state that it was waiting direction from the government gov t supp r4 tab 90 at 23-47 the debris in the soil however did not physically prevent the excavation from proceeding as specified by the contract moreover after the debris was observed by the contracting officer s representatives neither the differing site conditions clause nor any directive by the contracting officer required allstate to suspend the excavation and await further direction by the contracting officer 10 on 13 march 1995 the contracting officer directed all-state to stockpile the soil with disposition to be determined at a later date app supp r4 tab 85 at 2252 all-state ignored this order did not resume excavation and continued to record in its daily reports that it was waiting for direction gov t supp r4 tab 90 at 25-43 on 14 march 1995 the contracting officer requested a cost and time proposal for locating the surplus soil stockpile approximately 450 feet from the excavation and deleting the off-site disposal requirement proposed change pc #1 the request for proposal did not suspend work pending a decision on the proposal and it expressly stated that it was not a notice to proceed with the proposed change app supp r4 tab 6 11 on 22 march 1995 all-state offered a net price increase of $75,600 for pc #1 this offer was based on its contention that but for the debris the existing soil could have been used for the select backfill app supp r4 tab 7 by letter dated 23 march 1995 the contracting officer told all-state that the existing soil as indicated in the boring logs did not meet the criteria for select material and directed all-state to remove the existing soil and replace it with the specified select material app supp r4 tab 8 there is no evidence that all-state at any time requested approval to use the excavated material minus the debris as common fill 12 all-state did not proceed as directed in the contracting officer s letter of 23 march 1995 instead by letter dated 31 march 1995 it argued that the 23 march 1995 letter was a change to the contract gov t supp r4 tab 13 and by letter dated 18 april 1995 it proposed removing the excavated material under the $90 per ton contract line item clin 1.b price for disposal of contaminated material gov t supp r4 tab 15 r4-50513 tab 1 at 3 3 by letters dated 5 and 17 april 1995 the contracting officer repeated his 23 march 1995 directive gov t supp r4 tab 14 app supp r4 tab 12 on 26 april 1995 he issued a cure notice app supp r4 tab 13 on 27 april 1995 he told all-state that the excavated material could not be disposed of as contaminated material until it was tested and characterized as required by specification section 02220 ¶ 3.8 gov t supp r4 tab 16 13 all-state resumed the excavation on 2 may 1995 and with the exception of the area around three monitoring wells substantially completed the excavation on 4 may 1995 gov t supp r4 tab 90 at 47 51-52 all-state stockpiled the excavated material in the area indicated by pc #1 pursuant to an oral direction by the government 3 in addition to clin 1.b specification § 02220 ¶ 3.10.6.2 provided for a per ton payment for excavation handling stockpiling transportation off-site treatment and disposal of hazardous waste at an approved rcra or tsca chemical waste landfill r4-50513 tab 1 at 243-44 3-4

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advanced facilities engineering topic 3 ­ variation from baseline on 28 april 1995 gov t supp r4 tab 90 at 43 on 2 may 1995 all-state took two soil samples from the excavation for hazardous contamination testing a laboratory report dated 9 may 1995 on those samples showed not detected or readings below the detection limit for the 12 materials tested r4-50513 tab 10 at 4 all-state s 10 may 1995 daily report stated prelim [test results show hot for pcbs supp r4 tab 90 at 59 that statement however is not supported by the 9 may 1995 laboratory report on 15 may 1995 all-state took soil samples from the stockpile of excavated material for contamination testing pursuant to specification § 02220 ¶ 3.8 app supp r4 tabs 29-33 14 all-state began backfilling the excavation on 16 may 1995 on the same day its quality control qc manager halted the backfill until all test results are in gov t supp r4 tab 90 at 67-68 on 17 may 1995 all-state submitted the soil samples taken on 2 may 1995 for further testing by letter dated 22 may 1995 received by the government on 25 may 1995 all-state provided the government with a laboratory report indicating that one of the two samples had a hazardous level of pcb contamination r4-50513 tab 10 at 1-3 15 specification § 01011 ¶ 3.3.4 specified the following procedures for unforeseen hazardous material if material not otherwise identified as hazardous is encountered which may be dangerous to human health if disturbed during construction operations the contractor shall stop that portion of the work and avoid coming in contact with the material the contractor shall immediately notify the contracting officer concerning the possible existence of hazardous material the intent is to identify materials such as friable and non-friable asbestos polychlorinated biphenyls pcbs and paint containing lead within 14 calendar days the government will perform testing to determine if the material is hazardous if the material is not hazardous or poses no danger the contracting officer will direct the contractor to proceed without change if the material is hazardous and must be disturbed or handled to accomplish the work the contracting officer will direct a change pursuant to the contract clauses titled changes and differing site conditions r4-50513 tab 1 at 72 16 on 2 june 1995 the government took soil samples from the stockpile for comprehensive testing for hazardous materials app supp r4 tab 36 at 1 on 12 june 1995 all-state gave the government a test report on the all-state stockpile samples taken on 15 may 1995 the wastex tests app supp r4 tab 42 at 2 that 3-5

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advanced facilities engineering topic 3 ­ variation from baseline report showed no pcb contamination but did indicate four volatile constituents that exceeded state of new jersey clean-up level standards app supp r4 tab 38 the test report on the government s stockpile samples taken on 2 june 1995 was dated 16 june 1995 that report showed no pcb pesticide or other chemical contamination of the stockpiled material app supp r4 tab 36 based on the 16 june 1995 and the july 1993 test reports the contracting officer determined that the work could proceed without change he informed all-state of this determination by letter dated 20 june 1995 app supp r4 tab 43 gov t supp r4 tab 39 tr 1555-56 17 all-state admits that by 20 june 1995 it had been directed by the government to resume work app br at 25 however it refused to return to work unless the government agreed to indemnify it for any losses involving contamination including the handling of contamination app supp r4 tab 85 at 2407-09 on 26 july 1995 while all-state was still absent from the site the government closed the monitoring wells in the excavated area app supp r4 tab 50 18 on 31 august 1995 all-state told the government that it would return to work if the government industrial hygienist assured that it was safe to work without taking exceptional and costly precautions i.e air monitoring respiratory protection etc gov t supp r4 tab 29 on 12 september 1995 the government sent all-state a memorandum by the station safety director stating that based on a 1993 environmental site evaluation report and the wastex test report submitted by all-state air monitoring was not required and only the personal protective equipment ppe normally used during excavation or construction operations was necessary app supp r4 tab 85 at 2417-18 on 5 october 1995 when informed that all-state was retaining an industrial hygienist to monitor the resumption of work the contracting officer advised all-state that those services were not needed and that the government would not pay for them app supp r4 tab 60 19 the contracting officer on 5 october 1995 also directed all-state to give three working days notice and have a government representative present when taking soil samples for testing app supp r4 tab 60 the only requirement in the contract for all-state to perform soil tests was the provision on disposal of surplus soil that provision included no requirement for notice to the government or attendance of a government representative at the taking of samples for those tests r4-50513 tab 1 specification § 02220 ¶ 3.8 at 2414 20 on 17 october 1995 all-state returned to work and cleaned-up the excavated area in preparation for resuming the backfill on the following day gov t supp r4 tab 90 at 97 99 on 17 october 1995 all-state had the equipment operators wear respirators and protective clothing and had air monitoring performed with an industrial hygienist on site app supp r4 tab 73 at 1442-43 the air monitoring on 17 october 4 there is evidence of only one notice of soil testing being given pursuant to this direction that notice was given on 5 december 1995 for a soil test sample to be taken at the site of building qh-8 the existing hazardous waste facility that was to be demolished when the new facility was completed app supp r4 tab 85 at 2500 3-6

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advanced facilities engineering topic 3 ­ variation from baseline 1995 showed that there were no airborne contaminates caused by either the stockpiled soil or the excavation operations app supp r4 tab 73 at 1443 all-state did not perform air monitoring or use ppe after that date app br at 28 ¶ 55 5 the backfill of the new building site was completed on 26 october 1995 gov t supp r4 tab 90 at 113 21 on 30 october 1995 the contracting officer issued unilateral modification p00001 directing that the existing hazardous waste facility building qh-8 not be demolished until the new facility was completed and accepted r4-50513 tab 2 at 2 the contract at award did not specify when the demolition of building qh-8 was to take place r4-50513 tab 1 all-state originally planned to demolish building qh-8 over a 19-day period from 28 november through 16 december 1994 concurrent with the new facility site utility and foundation work r4-50513 tab 4 modification p00001 stated that neither the contract price nor time for completion were affected by the change and referred all-state to the disputes clause if it disagreed r4-50513 tab 2 at 2 all-state asserted its right to price and time adjustments for this change by letter to the contracting officer dated 2 november 1995 r4-50513 tab 11 at 1-2 22 on 31 october 1995 the contracting officer issued unilateral modification p00002 extending the time for completion of the contract 120 days to 10 september 1995 and increasing the contract price by $12,322 for 61 compensable days of delay the time extension and price increase were for the delay in the availability of the site for the start of work r4-50513 tab 2 at 3-4 see finding 3 on 27 december 1995 all-state submitted a claim in the amount of $24,933 for the 61 days of compensable delay r4-50513 tab 12 by final decision dated 25 october 1996 the contracting officer denied the claim entirely and reduced the amount allowed in modification p00002 for the 61 days to $9,376 r4-50513 tab 27 this decision was appealed the appeal is docketed as asbca no 50513 23 excavation for the new building wall footings began on 8 november 1995 the footings were not completed until the beginning of march 1996 gov t supp r4 tab 90 at 125-219 24 on 1 december 1995 all-state proposed replacing its current contractor quality control cqc manager with mr thomas reese the current cqc manager was not a united states citizen citizenship or a specific authorization to enter the work site was required by the contract app supp r4 tab 85 at 2315-20 r4-50513 tab 1 specification § 01011 ¶ 3.2.3 at 71 mr reese was disapproved by the government on 4 december 1995 because he did not meet the specification requirement for five years managerial or inspection experience in construction of buildings similar in size and type and involving the same major trades as the hazardous waste facility app supp r4 tab 5 one year later on 4 november 1996 the new jersey department of environmental protection sent all-state a determination that the excavated material met the state criteria for non-hazardous industrial solid waste app supp r4 tab 140 3-7

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advanced facilities engineering topic 3 ­ variation from baseline 85 at 2321 r4-50513 tab 1 specification § 01400 ¶ 1.5.1.2 at 151-52 6 a second candidate proposed by all-state on 8 december 1995 and rejected on 12 december 1995 was not a registered professional engineer or registered architect which was also required by the specifications app supp r4 tab 85 at 2325-28 2330 r4-50513 tab 1 at section § 01400 ¶ 1.5.1.2 at 151-52 on 12 december 1995 all-state demanded a contracting officer s final decision on the approval of mr reese and stated that it would use mr reese as its cqc manager until the decision was issued app supp r4 tab 85 at 2329 after further review of mr reese s qualifications the contracting officer on 16 january 1996 approved him as minimally qualified but expressed concern about his lack of adequate experience with regard to mechanical systems app supp r4 tab 85 at 2331 25 from 19 december 1995 through 7 march 1996 there were 54 calendar days including intervening weekend days and holidays when work was prevented by unusually severe weather.7 we have counted as unusually severe weather days those normal work days on which no work was performed due to freezing temperatures below the normal average for the day plus those no-work days where the cumulative rain or snowfall for the month exceeded the normal cumulative rain or snowfall plus the weekend days/holidays within the periods of no work due to those weather conditions gov t supp r4 tab 90 at 171-223 app supp r4 tab 153 at 2893-968 26 on 19 february 1996 all-state submitted a certified claim for a price adjustment in the amount of $343,537.99 and for a time extension of 234 days for alleged differing site conditions changes and delays occurring from award of the contract to 1 january 1996 app supp r4 tab 85 at 2245-2262 tab 86 on 12 march 1996 the contracting officer issued unilateral modification p00004 granting a time extension of two days to 12 september 1996 for rerouting a pipeline r4-50513 tab 2 at 8 27 with the exception of a part of the front wall the exterior wall foundations were substantially completed on 26 march 1996 gov t supp r4 tab 90 at 240 during the remainder of march all of april and most of may 1996 all-state constructed the the government s rejection letter of 4 december 1995 cited the experience requirement in the specifications and further stated that this includes building construction and most importantly environmental regulations app supp r4 tab 85 at 2321 while experience with environmental regulations was not expressly required in the specifications building construction experience was and mr reese s experience was entirely in bridge and road construction app supp r4 tab 85 at 2316-18 on that ground alone he did not meet the specification requirement 7 all-state s letter of 28 march 1996 claimed a 60-day time extension for unusually severe weather during the entire period from december 19 1995 thru february 18 1996 this letter also stated furthermore there were approximately six days lost due to weather subsequent to february 18 1996 the letter does not identify those six days by date app supp r4 tab 153 at 2856 the daily weather data in evidence for normal conditions does not go beyond 7 march 1996 and there is no other credible basis for determining whether any weather conditions after that date were unusually severe app supp r4 tab 153 at 2896 8 the record in this appeal permits a more precise determination of the calendar-day extension for work days lost due to unusually severe weather than the 7/5ths rule applied in all-seasons construction and roofing inc asbca no 45085 94-3 bca ¶ 27,096 at 135,017 6 3-8

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advanced facilities engineering topic 3 ­ variation from baseline interior wall foundations these were substantially completed by 17 may 1996 gov t supp r4 tab 90 at 240-301 28 on 20 may 1996 all-state began construction of the exterior and interior masonry walls gov t supp r4 tab 90 at 303 on 25 june 1996 work was halted on the walls pending government resolution of a latent conflict between a contract drawing detail for the masonry wall columns and the specifications gov t supp r4 tab 90 at 333-34 contract drawing s-2 at detail c1 column showed a horizontal rebar lying on top of the two cmu blocks constituting each layer of the column r4-50513 tab 1 if the rebar was installed as shown however the mortar joint between each successive layer of blocks would be ¾-inch rather than the 3/8-inch required by specification § 04230 ¶ 3.3.9 r4-50513 tab 1 at 329 on 27 june 1996 all-state was orally instructed to cut notches in the wall column blocks to resolve the conflict this instruction was confirmed in writing on 1 july 1996 app supp r4 tab 154 at 302526 the notching of the blocks was completed on or about 11 july 1996 gov t supp r4 tab 90 at 343 29 on 20 july 1996 all-state submitted its cost and time proposals for the additional work and for the government delays in providing direction app supp r4 tab 154 at 3028 the government argues that notching the blocks was inherently required to construct the columns as specified gov t br at 68 the conflict between the specified mortar joint width and the drawing detail presented structural integrity and visual appearance issues that could only be resolved properly by the project architect-engineer app supp r4 tab 118 at 3673 tr 492-95 moreover an internal government memorandum dated 12 august 1996 stated that the project architectengineer had acknowledged that notching the blocks was not customary procedure app supp r4 tab 96 at 4113 on this evidence we find that notching the blocks was not inherently required and was not within the scope of the omissions and misdescription provision of the specifications r4-50513 tab 1 specification § 01011 ¶ 1.1.1 b 9 30 contract drawing s-2 roof plan omitted two top of plank elevations that were necessary for completion of the walls and installation of the roof panels the omitted elevations were provided on 28 august and 10 september 1996 app supp r4 tab 118 at 3685 3690 apart from correcting some forms on 28 august 1996 there is no credible evidence that the omission of these elevations on the contract drawing caused any other additional work or caused any critical path delay gov t supp r4 tab 90 at 399-400 the roof panels were not delivered on site until 4 october 1996 gov t supp r4 tab 90 at 445 9 specification § 01011 ¶ 1.1.1 b stated omissions from the drawings or specifications or the misdescription of details of work which are manifestly necessary to carry out the intent of the drawings and specifications or which are customarily performed shall not relieve the contractor from performing such omitted or misdescribed details of the work but they shall be performed as if fully and correctly set forth and described in the drawings and specifications 3-9

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advanced facilities engineering topic 3 ­ variation from baseline 31 on 30 august 1996 the masonry subcontractor billed all-state $14,000 for additional time and delays in work progress awaiting government direction for masonry details time spent determining the roof elevation interior wall elevations additional time corresponding to the architect and awaiting response back from same app supp r4 tab 118 at 3687 apart from the masonry block notching and the two omitted top-of-plank elevations noted respectively in findings 28 and 30 above there is neither contemporaneous documentation nor credible testimony providing corroborating detail for the allegations in the invoice 32 the contract drawings for the masonry walls and roof did not have a detail showing a slope on the top course of cmu wall blocks on roof-bearing interior walls matching the inward slope of the roof tr 513 2100-01 sloping the top course of the blocks on these walls however was manifestly necessary to carry out the intent of the drawings as indicated by the top-of-plank elevations and was therefore within the scope of the omissions and misdescription provision of the specifications r4-50513 tab 1 dwg s-2 see finding 29 n.9 33 all-state s original progress schedule showed the masonry walls taking 75 calendar days to complete r4-50513 tab 4 at 2 line item 23 allowing 16 days of delay for notching the column blocks the masonry work that started on 20 may 1996 should have been completed on or about 19 august 1996 see finding 28 on 14 august 1996 the government quality assurance representative qar noted on the daily report that the three-man masonry crew on site that day was too small and that there was ample work for 2-3 mason crews this remark was repeated by the qar on subsequent daily reports the masonry subcontractor however failed to increase significantly its manning on the site the average daily masonry man hours increased by only four hours or the equivalent of ½ man per day over the remaining days of masonry work on the contract gov t supp r4 tab 90 at 381-469 the masonry work was still not completed when the masonry subcontractor abandoned the work on 23 october 1996 see finding 39 34 on 13 september 1996 the contracting officer issued unilateral modification p00005 deleting the surplus excavated material disposal requirement and reducing the contract price by $30,076 for that deletion modification p00005 also ordered changes in the aqueous film forming foam afff fire extinguishing system and increased the contract price by $12,000 r4-50513 tab 2 at 9-18 these changes however did not increase the time required for performance of the contract a schedule update by allstate prepared on 18 september 1996 five days after modification p00005 was issued allowed 48 days from 12 september 1996 for design and procurement of the system and 18 days for its installation supp r4 tab 82 the original 1 november 1994 schedule allowed 70 days for design and procurement of the original system and 21 days for its installation r4-50513 tab 4 at 3 10 both the original schedule and the 18 september 1996 update treat the afff system as part of the sprinkler system for scheduling purposes 10 3-10

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advanced facilities engineering topic 3 ­ variation from baseline 35 all-state s president testified that the afff system could be installed at any time tr 538 the contracting officer testified that it was generally one of the very last things to complete on the project tr 1764 all-state s 18 september 1996 schedule update showed installation of the sprinkler system starting on 31 october 1996 two weeks after the scheduled completion of the masonry walls supp r4 tab 82 the masonry walls however were not completed by 31 october 1996 or at anytime thereafter up to the termination of all-state s contract on 26 november 1996 see findings 33 39 and 42 on this evidence all-state has failed to prove that the changes to the asfff system caused any increase in the time required for performance of the contract from the time the change order was issued through the termination of the contract the masonry walls were the critical path delay if all-state had proceeded to implement the afff system changes when ordered and in accordance with its 18 september 1996 schedule,11 the system would have been available for installation before the masonry walls were completed and the time required for installation of the changed system was no greater than the time required for installation of the original system see finding 34 36 on 4 october 1996 the contracting officer issued a non-compliance notice on beam b-1 for not having the eight-inch minimum bearing on each end specified by details 123 and 126 on contract drawing s-2 app supp r4 tab 156 at 2941 the short beam was due to an ambiguity in the drawing as to the intended length of the beam and an erroneous answer given by the government in response to all-state s inquiry before the beam was built app supp r4 tab 75 at 3176-79 r4-50513 tab 1 dwg s-2 at roof plan section 123/s2/s2 and elevation 126/s2/s2 the noncompliance notice did not direct all-state to remove and replace the beam it expressly stated that it did not authorize any work not included in the contract that it was not a basis for additional payment or time and that if all-state disagreed with the notice it should contact the contracting officer immediately app supp r4 tab 156 at 2941 37 on 8 october 1996 all-state told the contracting officer that it had notified the vendor that the beam was too short and would assist the vendor with proposed shop drawings gov t supp r4 tab 77 on 1 november 1996 the contracting officer told all-state that the government had a plan to correct the problem that there was no need for all-state to develop an alternative plan and that the government would present its plan to all-state once a determination is made as to whether this contract will be terminated for default gov t supp r4 tab 79 the suspension of work on correcting the beam b-1 bearing did not preclude other work from being performed on the contract work continued on the masonry walls from 4 october until 22 october 1996 when it stopped not because of the beam b-1 bearing problem but because the masonry contractor abandoned the job see finding 39 38 on 7 october 1996 all-state submitted a certified claim for a price increase of $823,731 and a time extension of 455 days for alleged changes and delays occurring for reasons unexplained all-state did not in fact proceed expeditiously to implement the afff system change order it did not obtain a vendor quote on the changes to the system until 20 november 1996 more than two months after the change order was issued app supp r4 tab 141 11 3-11

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advanced facilities engineering topic 3 ­ variation from baseline from 1 january 1996 through 4 october 1996 app supp r4 tab 118 at 3613 3615 3671-93 the beam b-1 problem was not among the specific items for which price and time adjustments were asserted in this claim nor was it otherwise submitted to the contracting officer for decision as required by 41 u.s.c § 605a all-state alleges that the cost of fabrication and installation of beam b-1 was included in its 13 september 1996 invoice no 7 there is no line item for beam b-1 in that invoice app reply br at 37 app supp r4 tab 116 at 1022 invoice no 7 was returned to all-state unpaid on 18 october 1996 on the ground that t]he amount to be retained for liquidated damages exceeds the amount of the invoice there is no evidence that the government reduced the amount otherwise due on invoice no 7 by the amount of the fabrication and installation cost of beam b-1 app supp r4 tab 130 39 on 23 october 1996 the masonry subcontractor abandoned the work and was not replaced no masonry or other substantial construction work was performed on the site after that date gov t supp r4 tab 90 at 471-77 40 by final decision dated 25 october 1996 all-state s 19 february 1996 claim was denied entirely app supp r4 tab 133 that decision was appealed and the appeal was docketed as asbca no 50516 41 by letter dated 22 november 1996 all-state submitted a proposal to return to work and complete the contract the proposal called for the government to among other things i enter into a bilateral modification in the amount of $330,191.27 for all changes and delays as of oct 4 1996 ii appoint an independent contract administrator for the remaining contract work and iii approve a revised progress schedule with a completion date of 27 june 1997 r4-50516 tab 52 42 by final decision dated 26 november 1996 the contracting officer rejected all-state s proposal he found that the terms of the proposal amounted to an anticipatory repudiation of the contract and terminated the contract for default r4-50516 tab 53 at termination the contract work was only 35 percent complete gov t supp r4 tab 67 at 1 43 a contracting officer s final decision was never issued on the 7 october 1996 claim on 13 july 2004 all-state appealed the deemed denial of that claim that appeal is docketed as asbca no 54681 the parties have agreed that asbca no 54681 will be consolidated with and decided on the basis of the existing record and briefs in asbca nos 50513 and 50516 44 at hearing and in the proposed conclusions of law section of its post-hearing main brief all-state has set forth 12 specific claim items from its 19 february and 7 october 1996 claims those claims as characterized by all-state are for i debris filled soil ii contaminated hazardous soil iii additional testing notification iv monitoring wells v qh-8 rescheduling vi cqc manager vii weather delays viii notching of masonry blocks ix wall elevations x masonry wall slope xi beam b-1 and xii afff system redesign app br at 66-81 3-12

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