In Fuel Tank Maintenance Co., LLC, over a dissent concerning one aspect of the claim, the ASBCA held that, in a contract for the construction of relief wells and various modifications to a pump station: (i) the contractor was not entitled to compensation for 21 days of delay that the contractor's own expert report stated was concurrent or for 9 non-federal holiday days during an extended holiday that the contractor took from the job without seeking the Government's approval; (ii) an email from the COR to the contractor could not vary any contract requirements regarding an electrical impact study because the COR lacked authority to change the contract; (iii) motor pump testing ordered by the Contracting Officer under the "Inspection of Construction" clause required the contractor to be compensated when it was determined the motors functioned as contractually required; (iv) the contractor was entitled to compensation for delay caused when an issue with monorail clearance that prevented a subcontractor's work was discovered while that sub was on the way to the site; (v) the contractor was required to submit a "variance" and obtain approval for a change to a water test, and  the length of suspension of work associated with this process was reasonable; (vi) the contractor was not entitled to compensation for its second excavation of a discharge pipe absent evidence the Government (or the contract) required the first excavation, which occurred before the installation of larger (changed) motors that the contractor already knew would require a separate excavation; (vii) the contractor could not change from the method of charging for field office overhead identified in its proposal by an employee with authority to do so, as it was directed to do by a special solicitation provision that was not inconsistent with FAR 31.105(d)(3) or otherwise improper, despite arguments by the dissent that the special provision was improper and that, in the circumstances, the contract should have been reformed due to a unilateral mistake by the contractor's employee.

In Maverick Constructors, LLC, the ASBCA denied all the contractor's claims in a contract for the construction of water resource area levees, canals, pumping stations, control structures, siphon, access roadways, and appurtenant work on a water conservation restoration project. Specifically, the Board held that: (i) allegedly unsuitable material (rocks) in an excavation did not constitute a Type I differing site condition because, inter alia,  the rocks were not materially different from the material clearly described in several contract documents; (ii) the Government's provision of an additional borrow area within seven days of notice from the contractor that satisfactory material in the original area had been exhausted was reasonable in the circumstances and did not breach the implied duty of good faith and fair dealing where the contractor had failed to produce evidence for its assertion that it had submitted multiple notices prior to the one at the onset of the seven day period; (iii) the contractor could not recover for its costs of reconstructing the original levee it had built that allegedly met all contract requirements because the Government's daily inspection reports during that construction repeatedly had noted deficiencies in its fill material; (iv) the Government's ACO's comments on various submittals by the contractor were intended to assist it in revising the submittals and could not properly be interpreted as change orders; (v) the contractor was on notice from the Government of a defective specification prior to undertaking the action that it now claimed was compensable due to that defect; (vi) there was insufficient evidence concerning the contractor's allegations that it was required to create a 5-foot vegetation-free zone and establish grass seed long after the period during which the work was required by the contract; (vii) the contractor was not entitled to almost two years of excusable delay and a corresponding remission of liquidated damages because the contractor failed to establish the extent of  delay, the harm resulting from alleged delay, and that any delay days were solely attributable to government actions (a complete failure of proof).

Alares Constr., Inc. is an interesting CBCA case involving claims for extra work and delays on a construction project at a VA medical center. The presiding judge died after the hearing, so a new judge read the briefs and issued the decision. In connection with its post-hearing briefing, the contractor made several unsuccessful motions. The contractor wanted the CBCA to exclude documents impeaching one of the contractor's witnesses from the Appeal File because those documents were not mentioned during the hearing. That request was denied because, inter alia, the documents had been in the appeal file for as long as for five years before the hearing, and the deadline for objecting to documents in the file had long since passed. The contractor wanted the Board to overturn the trial judge's ruling that the contractor had failed to qualify its witness as an expert on delay claims and critical path analysis. That motion was denied because the original ruling was correct and because the trial judge (without objection from the agency) had allowed the witness to present his opinions and his report as lay opinion testimony. The contractor asked the Board to draw an adverse inference (that the Contracting Officer's testimony would have benefited the contractor) from the fact that the Government had not called the Contracting Officer to testify at the hearing. The Board gave several good and sufficient reasons for denying this motion, but the only one it really needed, imo, was that the Contracting Officer was also on the contractor's witness list, but the contractor chose not to call him and also had declined the new judge's offer to re-open the hearing to allow additional testimony. On the merits, the Board found the contractor's critical path report and analysis unpersuasive, but (to the Government's apparent chagrin) instead of denying the delay claim in its entirety, as the agency had requested, the Board relied, to some extent, on the agency's expert's critical path analysis, which had concluded the contractor was entitled to some of its delay claim. The bulk of this very long decision contains analyses of many issues concerning the cause and extent of the delays, too many to summarize here. Apart from its delay claim, the contractor presented no evidence beyond speculation to support its claim that the Government had breached its implied duty of good faith and fair dealing by allegedly failing to reasonably review and approve the contractor's change order and delay requests out of fear of funding limitations. The Board denied another claim because the contractor had failed the requirement to coordinate the work of its subcontractors, which resulted in one subcontractor removing some work installed by another sub, which, in turn, necessitated the reinstallation of that work. 

In 1102 Co., a case conducted in accordance with the CBCA's small claims procedure, the Board held that in a contract to provide, inter alia,  personnel with security clearances  at fixed monthly rates for full-time equivalent work days of eight hours each, the contractor was not entitled to bill for individuals until their security clearances were approved, and the agency did not unduly delay approval of a security clearance, especially where the solicitation warned that background checks could require more than 30 days.  

In Conrad Shipyard, LLC, the ASBCA held that: (i) the Government’s solicitation (expressly promising to pay up to a $1,000,000 stipend to all offerors who competed in the solicitation with an acceptable proposal and pricing that was to remain firm until award, but did not receive the award) did not create an implied-in-fact contract as the appellant claimed, but rather amounted to an express offer by the Government to enter a unilateral contract in return for specified performance by offerors; (ii) once the appellant had submitted its proposal, the Government's offer became an irrevocable option contract; (iii) the appellant, however, did not complete its performance of the unilateral contract because it withdrew its offer before the Government made an award, so the appellant was not entitled to any of the stipend. The Board also dismissed a count in the Complaint for breach of the implied duty of good faith and fair dealing because that claim had not previously been submitted to the Contracting Officer for a decision.

In Vectrus Systems Corp., the ASBCA denied the contractor's changes, breach, and negligent estimates claims, because the "workload data" appended to a solicitation for a fixed-price contract for laundry services (and later revised in a bilateral mod) did not establish limits on the number of items that the contractor was obligated to clean for the fixed prices and did not entitle the contractor to extra compensation for certain categories of items where the work exceeded the corresponding amount listed in that data, especially where the contractor participated in deriving the workload data for the mod and was paid the full contract price even in the areas where the actual number of items cleaned was less than the number in the workload data.

In Skanska USA Civil Southeast, Inc., which involved an FFP contract with the Navy for the demolition of two existing piers and construction of a new pier at the Norfolk Naval Shipyard, the ASBCA denied the contractor's claims for extra costs associated with the difficult removal of interior timber bearing piles. First, the Board held that the contractor failed to produce sufficient evidence concerning three issues necessary to support its claim that it was impossible to fully extract the interior bearing piles while complying with the dredge limits: (i) whether any other contractor was able to comply with the specifications; (ii) whether the specifications required performance beyond the state of the art; and (iii) the extent of the contractor’s efforts in meeting the specifications. In connection with this claim, the Board held that, when read in context, neither of two communications from the Navy was an admission of impossibility. Secondly, the Board held that, although a note in the solicitation that "[a]ll timber structure including but not limited to piles, bent caps, relieving platform shall be assumed to be creosote treated" was a representation concerning a site condition, the contractor's Type 1 differing site condition claim failed because: (i) its own prior work on the site in a contract mentioned in the solicitation gave it as least constructive notice that the bearing piles were untreated, which the contractor should have foreseen; and (ii) the as-built drawings, which the contractor should have reviewed, indicated the piles were not treated. The Board also denied the contractor's Type 2 differing site condition claim because the contractor should have reasonably anticipated that the bearing piles would be degraded due to their prolonged exposure (for 70 to 90 years) to the adverse conditions under the piers.

In Sheffield Barbers, LLC (which involved a  contract to operate barber shops at AAFES locations) long after contract award, the Contracting Officer directed the contractor to stop charging extra for "fade" haircuts. The contractor submitted alternative constructive change, breach, and misleading estimate claims for the lost revenue and appealed their denials. AAFES then filed two motions for summary judgment. The first alleged that the contract required that fade cuts be charged only as regular cuts. The ASBCA denied that motion because the Contracting Officer (a) was aware that the contractor was charging extra for those fade cuts as "style" cuts, (b) acquiesced in the extra charges, and (c) did nothing to stop this practice for the first 15 months of the contract, which amounted to a waiver of AAFES' interpretation of the contract. The second motion for summary judgment was to dismiss the claim that the Government's estimates in the solicitation about the amount and type of cuts to be expected were misleading. The Board held that those estimates were based on the Government having allowed the predecessor contractor to charge extra for fades, and, therefore, were neither inaccurate nor unreasonable (and actually supported the contractor's breach and change claims). 

In ECC Int'l Constructors, LLC, one among a series of decisions involving a contract to design and construct a 20-building military compound in Afghanistan (this one involving claims for delay and remission of liquidated damages), the ASBCA held that: (i) the contractor's expert's delay analysis was not credible because he did not create a "fragnet" (fragmentary network) to analyze the effect of one significant source of delay on the project; (ii) the Government's admissions against interest that its 100% design review delayed the project could reasonably be interpreted to put that delay on the critical path, but the contractor's concurrent delay exceeded the number of days of delay caused by the Government, so the contractor was not entitled to any compensable delay; and (iii) despite failing to prove compensable delay, the contractor was entitled to recoup liquidated damages assessed by the Government for delays in the approval the 100% design submission because the contractor rightfully interpreted the contract to require the 100% design submittal only to incorporate the contractor's responses to the comments the Government had made in response to the 95% design submittal. 

In Gideon Contracting, LLC, which involved a task order to repair a dam, the ASBCA held that the order contemplated that suspensions of work would be required to allow the release of water when lake elevations exceeded a certain level, and, therefore, under the "Suspension of Work" clause, the contractor could recover only for the portions of the suspension periods where the Government inexplicably continued releasing water after the lake had reached the required level and, in another case, where the Government (again inexplicably) did not permit the contractor to return to work for five days after the required level had been reached. The Board also held that the Government waived its claim for liquidated damages for late completion of the work by waiting more than a year to assert that claim as a punitive response to the contractor's claim. 

In Chromalloy Component Services, Inc., which involved a contract to refurbish a major module of the F108 engine used on KC-135 aircraft, the ASBCA denied the incumbent contractor's claim for extra costs associated with increased prices for turbine fan blades and the Government's decision to change from contractor-acquired blades to GFM because: (i) the contractor did not properly allege, much less prove, that the Government possessed superior knowledge concerning the pricing and availability of the blades or that the contractor relied on any defective information from the Government in pricing its bid, and any alleged promise by the Contracting Officer concerning the issue came only after the contractor had submitted its bid; (ii) the contractor's claim for the costs of blades it ordered before the Government switched to providing the blades as GFM would be denied because the contract explicitly allowed the Government do do so; (iii) the contractor did not establish that a prior course of dealing existed that precluded a large order being placed near the end of the base year rather than during the first option year when it would have been performed and priced at higher option year rates, and, at any rate, the contractor had signed bilateral modifications memorializing the orders; and (iv) none of the above claims amounted to a  constructive change. 

In TransOx, Inc., a proceeding conducted in accordance with CBCA Rule 52 (its small claims procedure), the CBCA was faced with appeal involving the interpretation of  a very poorly drafted contract line item providing for a "[o]ne time delivery fee for any purchased items  . . .  each, per delivery, per patient" in a contract to provide home oxygen services to VA medical center outpatients. The Board held, inter alia, that: (i) in interpreting that provision, the Board would not look for assistance to language in the solicitation that was not incorporated into the contract; (ii) the VA's interpretation of the provision as providing only for a one-time delivery fee no matter how many deliveries were made would ignore all language in the line item after the words "one time delivery fee"; (iii) although the contractor's competing interpretation of that line item was problematic, it was within the zone of reasonableness, and since the VA had not offered a reasonable counter-interpretation, the contractor's interpretation would be adopted; and (iv) even if the language were ambiguous, it would be interpreted against the VA as its drafter. 

In UnitedHealthcare Insurance Co., which involved a contractor's (insurer's) dispute over money it had to pay out for an insurance claim, the CBCA granted the agency's motion for summary judgment concerning the  contractor's breach claim because the contractor failed to establish causation, i.e., what would have happened in the "non-breach world" if the alleged breach had not occurred. 

In A4 Constr. Co., which involved the Government's motion to dismiss appeals of claims involving defaulted firm, fixed-price ("FFP") contracts to design and construct training facilities for U.S. Special Forces in Colorado, the ASBCA held that: (i) a bilateral modification was an accord and satisfaction that clearly covered all the contractor's claims concerning delays from an earthquake and also released the Government from liability for those claims; (ii) a bilateral modification addressed (and released) claims for delays during the month of a flooding event, but the contractor could continue to pursue its claim for delays from that event in other months; (iii) a bilateral modification covered a gas piping change and clearly released further claims concerning that change; and (iv) although a mod exercising options did not contain release language and was not an accord and satisfaction of the contractor's claims for increased subcontractor costs due to the COVID pandemic, such costs are not recoverable in an FFP contract, but the contractor's claim for delay days attributable to the pandemic survived the Government's motion to dismiss. 

In GSI Pacific, Inc., which involved contract interpretation in a contract to remediate (remove munitions and explosives from) the Area M Munitions Response Site in Hawaii, the ASBCA held, inter alia, that: (i) a statement in the contract that "work is to be performed in accordance with" a "Decision Document" was sufficient to incorporate that document into the contract; (ii) a note in a section of the contract entitled "Background and History" that a Feasibility Study had  been conducted in the past was insufficient to incorporate that document into the contract; and (iii) alleged actions by adjoining landowners limiting the contractor's access to the site were not compensable because contract did not shift the risk of delays caused by third parties to the Government, which had obtained the necessary right-of-way forms from the landowners. 

In Gideon Contracting, LLC, which involved a task order to repair a dam, the ASBCA held that the order contemplated that suspensions of work would be required to allow the release of water when lake elevations exceeded a certain level, and, therefore, under the "Suspension of Work" clause, the contractor could recover only for the portions of the suspension periods where the Government inexplicably continued releasing water after the lake had reached the required level and, in another case, where the Government (again inexplicably) did not permit the contractor to return to work for five days after the required level had been reached. The Board also held that the Government waived its claim for liquidated damages for late completion of the work by waiting more than a year to assert that claim as a punitive response to the contractor's claim. 

In GSI Constr. Corp., a Rule 11 procedure involving a contract for renovation services, the ASBCA held that where the contract provided for one price during an initial base period and a higher set price in the event award was delayed, the contractor was entitled to compensation (pursuant to the "Suspension of Work" clause) where the contract had been awarded on time but notice to proceed and site access had been unreasonably delayed, even though the contractor failed to prove (a) that the delayed notice to proceed was a result of a deliberate misrepresentation by the Government and (b) that it should have received the full set contract price for a delayed award.

In Peraton, Inc., another Rule 11 proceeding, this one concerning a CPFF task order for technical systems engineering support services for the Navy’s Fleet Systems Engineering Team, the ASBCA held that a contract provision requiring the Contracting Officer to issue a contract modification if the Contracting Officer "determines, for any reason, to adjust the task order amount or the estimated total hours," was intended to cover only situations where the level of effort increased over the contract's estimated amount and did not entitle the contractor to obtain its full fixed fee when the contract work turned out to be below the estimated quantity because (i) the contractor's interpretation clashed with another contract provision; (ii) the Board's interpretation  was consistent with the normal principles of cost reimbursement contracting: (iii) the estimated quantity was just that and not a guaranteed minimum; (iv) the fixed-fee was a maximum, not a guaranteed amount; and (v) the contractor's negligent estimate breach theory was not applicable to cost-plus contracts. 

In AECOM Technical Services, Inc., the ASBCA decided the contractor had no right to recover its considerable costs associated with its preparation of a proposal, including a feasibility study, in connection with a solicitation for a task order award under its IDIQ contract because the contract clearly and repeatedly stated such costs could not be recovered if the Government decided not to award the task order or proceed with the project  "for any reason." Specifically, the Board held that: (i) it lacked jurisdiction over any claims based on an implied-in-law contract; (ii) the contractor had not previously submitted its superior knowledge claim to the Contracting Officer for a decision; (iii) the implied duty of good faith and fair dealing cannot be used to establish a contractual right directly contradictory to the terms of a written contract; and (iv) the fact that the Contracting Officer had not given any reason for not proceeding with the project was irrelevant because the contract did not require him to provide a reason:

If the KO determines that the project is not feasible for any reason including but not limited to financial, technical, contractual, savings determination, installation mission, or organizational issues, then the Government will not be subject to any costs associated with the feasibility study unless the Government exercises its option to obtain ownership of the submitted documentation.