SOUTHERN COMFORT BUILDERS, INC., Plaintiff, v. UNITED STATES, Defendant, 67 Fed. Cl. 124

OPINION HORN, Judge. This case arises from a contract between the plaintiff, Southern Comfort Builders, Inc., (SCBI) and the National Aeronautics and Space Administration (NASA) to install heating, ventilation, and air conditioning (HVAC) equipment, along with the associated ductwork, wiring and piping in Mobile Launch Platforms (MLPs) for the NASA space shuttles at Kennedy Space Center, Florida.

SCBI seeks damages alleging that, during the course of its performance, it encountered defective contract specifications, not obvious before actual performance, and a Type I differing site condition, in that the surfaces, ducts, and pipes of the MLPs were contaminated with lead-based paint, which was not indicated in the bid documents. The lead paint required abatement before SCBI could proceed with the contract. SCBI further claims that NASA improperly administered the contract.

According to the plaintiff, the government’s actions, including the defective specifications, differing site conditions and failure to properly administer the contract, all caused delays and loss of productivity, which resulted in added costs, for which plaintiff should be compensated. The plaintiff also alleges that the defendant failed to pay SCBI for its work in accordance with the terms and conditions of the contract, in violation of the Prompt Payment Act, 31 U.S.C. §§ 3901, et seq. (2000).

Finally, the plaintiff alleges that the defendant failed to negotiate contract modifications in good faith, which, according to the plaintiff, “constitutes a constructive change to the Contract.” Plaintiffs complaint initially requested damages in the amount of $374,946.00. The defendant filed a counterclaim, initially in the amount of $84,657.00. The defendant alleges that the plaintiff failed to provide coordination drawings as required by the contract and, therefore, that the plaintiff saved approximately $30,000.00, the estimated cost of generating the required drawings.

In the joint stipulation of facts, however, the defendant reduced this amount and the parties state: “The Government further seeks $6,484.00, which is the Government’s calculation of the total costs of preparing coordination drawings for MLP-1.” The defendant also includes in its counterclaim the cost incurred to replace or correct rejected work, including fan drive mechanisms and belt guards and/or access door interlocks.

The contracting officer issued a final decision finding that plaintiff owed the defendant $54,475.00 for the cost of the government’s reprocurement, although the defendant admits that $3,500.00 of that amount was not related to work performed by the plaintiff. In the joint stipulation of facts, the defendant seeks $50,975.00 for the reprocurement. The total value of the defendant’s counterclaim is $57,459.00. The defendant is currently holding retainage of $15,975.00. FINDINGS OF FACT On March 25, 1998, NASA awarded SCBI contract no.

NAS 10-98024 for replacement of HVAC equipment, along with the associated ductwork, wiring and piping in MLPs for the NASA space shuttles at Kennedy Space Center, Florida. The contract was awarded to SCBI based upon a sealed bid totaling $818,056.00. On March 18, 1998, before NASA awarded the contract to SCBI, NASA sent a letter to SCBI requesting confirmation of their bid price. In the letter, NASA stated that SCBI actually was not the lowest bidder, but that the lowest bidder had requested to withdraw its bid because of a mistake in bid.

NASA requested SCBI to confirm its bid stating that: “The disparity between [SCBI’s] bid and the other bids and the Government Estimate is of such a magnitude as to indicate the possibility of a mistake in bid.” The record does not indicate how SCBI verified its bid to NASA; however, SCBI was awarded the MLP contract. The MLP contract was a fixed-price contract with two tasks and one option. Task one required SCBI to replace HVAC equipment in MLP-1. Task two required SCBI to replace HVAC equipment in MLP-2. The contract also included a fixed-price option for MLP-3.

Before NASA awarded the MLP contract, a pre-bid site visit was held on February 24, 1998. During the site visit, potential bidders were invited to walk the facility, survey the MLPs and ask the contracting officer questions. Because the solicitation, specifications and diagrams were released before the pre-bid site visit, all potential bidders had an opportunity to review the drawings and specifications included in the solicitation before attending the pre-bid site visit, and to compare the contract specifications to the actual structural measurements in the MLPs.

Although SCBI bid on and won the MLP contract, it did not attend the pre-bid site visit. After SCBI won the contract, however, it requested permission from NASA to survey the MLPs to conduct measurements. On April 2, 1998, the defendant informed SCBI that it could inspect MLP-1 on April 6, 7, and 8,1998, and MLP-3 on April 6, 7, 8, 9, and 10, 1998. On April 9, 1998, SCBI visited MLP-1.

Curtis Reed, SCBI’s project superintendent, stated at the trial that the purpose of the inspection was only to measure the MLP doors to determine how SCBI would fit its equipment into the MLPs and that the defendant did not permit SCBI access to the MLP to compare the contract specifications to the actual measurements of the equipment within the MLPs.

A daily construction log entry drafted by the defendant on April 9, 1998, shows that SCBI visited MLP-1 “to take door opening measurements.” Another construction log entry drafted by the defendant indicates that SCBI visited the MLPs on the evening of May 6, 1998, “to take measurements and plan lifting procedure.” The government issued SCBI a notice to proceed on April 3, 1998. Pursuant to the notice, SCBI was required to complete all contract performance, including punch list items, by December 28, 1999.

In the notice, the government also stated that SCBI should “[k]eep in mind that access to the construction site will be governed by the Work Area Access Constraints’ clause.” The constraints clause of the contract is found at

Article 18 of the contract, which discusses the particular time and access restrictions within which SCBI was to complete the contract. Specifically, the contract was restrictive in that it set forth the precise sequence in which SCBI was to complete the MLP work and required all work packages to be completed in three modification periods or work windows, each six weeks long. The contract included thirteen work packages for each MLP, which were required to be performed during the NASA specified work windows.

The MLP contract specified SCBI’s work sequence by requiring that: “All tasks within a modification period shall be performed in the sequence shown for those tasks in that modification period.” The contract, however, also stated that “the sequence in which the modification periods (work windows) containing these tasks will be performed will be based upon MLP availability and will be determined by the Government.” By a letter dated June 22, 1998, NASA informed SCBI that MLP-1 would be available from June 10 — July 21, 1998 for the first work window.

Although the letter was sent after the work window commenced, the letter stated that it confirmed “previous informal discussions, provided at status meetings prior to the work window, which the parties agreed would suffice for notification of this work window.” SCBI commenced work on the MLP contract in June, 1998. Through the testimony of Russell Allison, SCBI’s project manager for the MLP contract, the plaintiff alleges that immediately upon commencing work, it encountered several government caused delays and changes in the expected work sequence. For example, Mr.

Allison testified that the defendant delayed the start of the contract because MLP-1 was not at the park site, where SCBI planned to complete work on the contract. Additionally, Mr. Allison testified that SCBI was required to resequence the start of the work because the government was not prepared to begin the first work package. The first work package of each MLP required SCBI to construct chilled water piping modifications. Mr. Allison stated that SCBI could not complete work package no. 1 because the government had difficulty removing the coolant system.

SCBI, therefore, was required to resequence their work and to begin with work package no. 2 for MLP-1. The plaintiff alleges that such scheduling conflicts occurred throughout its work on MLP-1, delaying SCBI’s performance and requiring SCBI to submit numerous Requests for Information (RFIs) to the government. During the course of its performance on the MLP contract, SCBI submitted fifty-seven RFIs to the government. These RFIs requested information such as where to place piping and how to address structural obstructions confronted in the course of performance.

In letters to NASA dated June 19, 1998 and July 25, 1998, SCBI expressed its concern about the timeliness of the government’s response to SCBI’s many RFIs.

Specifically, in its July 25, 1998 letter to NASA, SCBI stated: “We have tried to work around all the out-of-sequence work, but keep coming up with incomplete answers to the RFI’S and design changes.” Additionally, SCBI argues in its complaint in this court that: “Given the restrictive nature of the time SCBI had for performance of the Contract, it was imperative that NASA respond to SCBI’s RFIs as quickly as possible.” On August 1, 1998, SCBI again wrote to NASA’s contracting officer, Terrance Crowley, and expressed its concern about the scheduling impacts. Specifically, the letter to Mr.

Crowley indicated that NASA was not responding to the plaintiffs various RFIs. The August 28, 1998 letter stated: ‘We trust and hope this is a high priority for you to execute all of the RFI’s and concerns of ours in order that we may complete this project.” With the letter, SCBI attached its daily construction logs from July 27 through July 31, 1998. The logs indicate that the plaintiff was delayed in its performance awaiting a response specifically to RFI no. 22.

For example, the daily log for July 28,1998 states that: “RFI #22 is still not completely answered and we are being impacted from hooking up to the fan coils. We also, are being held up from placing pipe through penetration from B deck to A deck.” SCBI states that NASA’s failure to timely respond to its RFIs caused unnecessary and unreasonable delays in performance. The government responds that many of the plaintiffs problems and its numerous RFIs would have been avoided if the plaintiff had produced the coordination drawings required by the contract.

Coordination drawings were required from the contractor to identify and prevent conflict or clearance problems between trades, such as electrical, mechanical, and piping, and to coordinate between the different trades. Sections 1300 and 15050 of the contract required SCBI to submit specific data for the project.

Section 15050,

part 1.3 of the contract stated: SD-04 Drawings Coordination Drawings shall be submitted for Pipes, Valves, and Specialties showing coordination of work between different trades and with the structural, electrical and architectural elements of work. Drawings shall be in sufficient detail to show overall dimensions of related items, clearances, and relative locations of work in allotted spaces. Drawings shall indicate where conflicts or clearance problems exist between various trades. The plaintiff admits that it did not draft coordination drawings for MLP-1 as the contract required.

SCBI argues that NASA did not grant SCBI sufficient access to MLP-1 to properly inspect the MLP in order to draft the coordination drawings before beginning work. In addition, SCBI states that it relied upon the diagrams provided by the defendant during the solicitation process, stating that the defendant’s drawings were unusually detailed, indicating their projected usefulness to determine pipe lengths and placement. The plaintiff, however, admits in its reply brief that it found that the actual measurements and routing of the piping were different from the drawings.

Also, according to the plaintiff, NASA’s contracting officer’s technical representative, Armando Maiz, waived the requirement for SCBI to produce coordination drawings. In a submittal provided to NASA on April 22, 1998, Del Ellis, the president of SCBI, had written “N/A” in the

section where the SD-04 drawing description would be provided and the requirement for SD-04 drawing was lined out. That document was countersigned by the contracting officer’s technical representative on May 4,1998. In a letter dated February 18, 2000, SCBI claimed, referring to SD-04, that: “Since it was just lined out, you did in fact accept N/A as submitted or it would have been stated Not Provided as it was stated on the As Built Drawings.” (emphasis in original). At the trial, however, Mr. Maiz stated that he never advised the plaintiff that it did not have to complete coordination drawings.

Believing that many of SCBI’s RFIs were the direct result of SCBI’s failure to produce the coordination drawings, the government reduced SCBI’s contract amount. In a letter from NASA to SCBI, dated February 2, 2000, NASA informed SCBI that it was crediting back to the government amounts given to SCBI under change orders resulting from the RFIs SCBI had previously submitted. In the letter, the government stated that: “SCBI failed to comply with the provisions of the submittal requirements [coordination drawings] of contract specification requirements as outlined below.

This failure caused the Government to issue unwarranted modifications that were generated primarily through RFI’s submitted by the contractor.” In short, the government informed SCBI that many of its RFIs were unnecessary and the direct result of SCBI’s failure to draft the coordination drawings required by the contract. In the letter, the government indicated that it intended to credit $18,588.00 back to the government for SCBI’s failure to produce the coordination drawings.

On July 1, 1998, SCBI’s performance on MLP-1 was halted by NASA, after NASA informed SCBI that the paint on the MLPs into which SCBI was drilling contained lead. Before SCBI could continue performance, NASA required that the lead be abated. SCBI argues that the lead-based paint constituted a differing site condition, causing SCBI to delay its performance and to work in excess of the contract requirements. At NASA’s request, and pursuant to contract modification nos. 2 and 12, SCBI hired a subcontractor, Sunrise Systems of Brevard, Inc., to complete the lead abatement.

The defendant also modified the MLP contract to provide payment for the lead abatement work. According to the defendant, under contract modification no. 28, dated December 4, 1998, the government paid SCBI $37,882.00 for the lead abatement work. Later, in modification no. 40, the government decreased that amount by $5,995.00. In modification no. 52, issued on January 13, 2000, the government then decreased that amount by an additional $1,412.00. Finally, on October 24, 2002, the defendant paid SCBI an additional $8,364.32 for temporary pipe supports used during the lead abatement process.

Despite the inclusion of the lead abatement, differing site condition claim in plaintiffs complaint, the government has demonstrated, based on the change orders, that SCBI has been compensated $38,839.32 for the lead abatement work. Plaintiffs allegations that the lead abatement requirement caused delays to contract performance leading to loss of productivity will be addressed below. In the course of SCBI’s performance on the MLP contract, NASA observed that the belts on the Air Handling Units (AHUs) were wearing prematurely.

Initially, it was believed that the sheaves on the AHUs were installed backwards, in that the fan sheaves were installed on the motor and the motor sheaves were installed on the fan. After confirming from the manufacturer that the sheaves were installed correctly, the parties discussed several corrective proposals. According to the government, however, the issue was not resolved and the problem lasted for several months longer. On July 8, 1999, NASA issued SCBI a non-conformance report, which indicated that the belts on the AHUs were wearing prematurely.

Three months later, by a letter dated October 12, 1999, the contracting officer, Clarence Floyd, directed SCBI to repair or replace the defective equipment which had caused the premature wearing problem. In the letter, Mr. Floyd stated that “the [belt] problems consisted of broken belts, misalign[ed] sheaves, probably the wrong types of sheaves installed, belts too tight, belts too loose and belts cracking.” SCBI attempted to correct the wearing problem with the AHU belts by replacing the factory installed adjustable sheaves with fixed sheaves for two of the AHUs.

SCBI also replaced all of the belts on 9 of the 11 AHUs, performed a sheave alignment check and adjustment on all 11 AHUs and tightened the belts per the manufacturer’s recommendations in its operations and maintenance manual. In a letter dated November 22, 1999, NASA stated to Carroll Air Systems, Inc. (Carroll Air), SCBI’s AHU supplier, that the wearing issue was “not a maintenance problem, but it instead appears to be a production problem.” The government requested immediate corrections to provide reliable units. Through defendant’s expert witness at the trial, John M.

West, and in the filings submitted to this court, the defendant argues that the reason the belts wore prematurely was that the drive service factor was incorrect. The MLP contract, at

section 15855,

part 2.1.1.1, required that the “[f]an drive shall be by V-belt, designed for not less than 150 percent of the connected driving capacity.” According to Mr. West, a drive service factor of 150 percent, or 1.5, means that the fan belt drive must be designed for 50 percent more horsepower than will be used in the AHU. In the AHU submittals presented to NASA by SCBI, the actual drive service factors of the installed AHUs ranged from 1.18 to 1.24, which is below the contractually required drive service factor of 1.50.

The defendant argues that the cause of the premature wear was SCBI’s failure to provide AHUs with the appropriate drive service factor. The defendant, therefore, seeks compensation for reprocuring the belts and sheaves from another contractor. In its counterclaim, the defendant also argues that SCBI failed to provide and install belt guards or access door interlock switches on each of the AHUs, as was required by the contract. The purpose of the belt guards or interlock switches was to prevent accidental, personnel contact with a moving fan belt. Specifically, the MLP contract at

section 15855,

part 2.1.1.1 required that: “A belt guard shall be provided inside the cabinet, or the access door shall be interlocked with the supply fan so that power to the fan will be interrupted when the access door is opened.” In its defense, SCBI claims that the AHUs specified by the government provided neither belt guards nor an access door interlock.

Indeed, a letter from the manufacturer, McQuay International (McQuay) to SCBI’s supplier, Carroll Air, confirms that the AHUs installed by the plaintiff “do not have any offering for belt guards.” Instead, the McQuay AHUs were fitted with a bolt on the access door which prevented the doors from being opened without a specific kind of tool. On December 7, 1999, SCBI submitted a deviation request asking to be relieved from the requirement of installing the belt guards or interlock switches. On December 16, 1999, NASA’s contracting officer, Clarence Floyd, denied SCBI’s request. In his denial, Mr.

Floyd recognized that the use of a special tool to access the belts was an acceptable practice under the Occupational Safety and Health Administration (OSHA) regulations. Nevertheless, Mr.

Floyd stated that: “Although this meets OSHA requirements, it is inferior to what is required by the specifications and increases the probability that, through negligence or oversight, no safety device is used to protect technicians from the rotating equipment.” To resolve the premature belt wear and the required belt guards or interlock switches issues, on March 29, 2000, the government issued contract modification no. 53, which deleted from SCBI’s contract the requirement to replace belts and sheaves on all MLP AHUs, as well as the requirement to install belt guards for all MLP AHUs.

In addition, modification no. 53 decreased SCBI’s MLP contact price by $35,000.00. As reason for the decrease, the modification stated that: “The contractor failed to comply with the requirement of specification 79K35131,

section 15855,

part 2.1.1.1 to provide belt guards or access door interlocks for air handling units____” The government also claimed as a basis for the decrease that: “The contractor failed to comply with the requirements of Specification 79K35131

Section 15855 paragraph 2.1.1.1 to provide the required ah* handling units belts for fan drive ____The belts installed by the contractor are breaking, too tight, too loose and cracking.” On June 5, 2000, NASA awarded a reprocurement contract in the amount of $52,200.00 to Ivey’s Construction, Inc. (Ivey’s), to complete the portion of work not completed by SCBI under the original MLP contract.

The reprocurement contract required Ivey’s to design, build, and install belt guards for all the AHUs, as well as to install new sheaves and belts for all the AHU blower assemblies per the manufacturer’s recommendation, and finally, to test and balance all the AHUs. NASA made one modification to Ivey’s reprocurement contract, which raised the ultimate reprocurement contract price to $54,475.00. The government is not seeking $3,500.00 of the reprocurement cost, which did not relate to SCBI’s MLP contract responsibilities.

In its current counterclaim, the government seeks $50,975.00 in reprocurement costs from SCBI for the replacement of belts and sheaves and the installation of belt guards for the MLP AHUs. Throughout its progress, and after the MLP contract was completed, SCBI filed several requests for equitable adjustment (REA) and certified claims with NASA’s contracting officer. SCBI filed its first REA in June, 1999.

According to Michael Midgette, who was admitted at the trial as an expert in construction scheduling for the plaintiff, and the individual who assisted SCBI in drafting its REAs and certified claim, the government provided no response to SCBI’s first REA. On March 3, 2000, SCBI submitted a certified claim for equitable adjustment to the contracting officer in the amount of $374,946.00.

In its claim, SCBI argued that because of the many design deficiencies encountered on MLP-1, NASA’s slow response time to SCBI’s RFIs, the large number of change orders issued as a result of the conflicts, and the discovery of a differing site condition in the lead paint, SCBI experienced additional costs over and above what it would have experienced. The plaintiffs claim, however, did not specifically request a contracting officer’s final decision, and the contracting officer responded to it only as an REA. On April 17, 2000, the contracting officer denied the REA in its entirety.

On April 25, 2000, through counsel, SCBI resubmitted its certified claim and specifically requested a contracting officer’s final decision. On June 12, 2000, SCBI requested the Armed Services Board of Contract Appeals (ASBCA) to issue an order directing NASA to provide a contracting officer’s final decision by July 31, 2000.

In its review, the ASBCA found that: “The contractor’s [SCBI’s] 25 April 2000 claim essentially reiterates verbatim its 3 March 2000 certified Claim for Equitable Adjustment, with the sole difference that the 25 April 2000 claim adds an express request for a contracting officer’s final decision.” The ASBCA ordered NASA’s contracting officer to issue a final decision on SCBI’s April 25, 2000 claim. On August 25, 2000, the contracting officer issued his final decision, again denying SCBI’s claim in its entirety. Thereafter, the plaintiff filed its complaint in this court.

In its complaint, the plaintiff requests $374,946.00 in damages and alleges that 1) the contract specifications were defective, 2) the existence of lead-based paint in the MLPs constituted a differing site condition, 3) the government improperly administered the MLP contract causing delays and additional costs to SCBI, 4) the government failed to pay SCBI in accordance with the terms of the contract, in violation of the Prompt Payment Act, 31 U.S.C. § 3901, et seq., and 5) the government failed to negotiate contract modifications in good faith.

After the commencement of litigation in this court, on October 24, 2002, the government issued unilateral modification no. 54, which increased SCBI’s contract amount by $66,167.00. This amount excluded Contract Disputes Act interest pursuant to 41 U.S.C. § 611 (2000). In May, 2003, the government released $56,998.00 to SCBI, partially satisfying SCBI’s claims for unresolved change orders. In modification no. 54, the contracting officer, Clarence Floyd, wrote that the payment was for: “items included in SCBI’s claim, dated March 3, 2000.

The Contracting Officer’s Final Decision No. 1, dated 8/25/00, initially denied these items.

After further review of the contractor’s claim, the Contracting Officer has determined the contractor is entitled to payment for these items.” Additionally, the defendant initially had denied payment to SCBI when modification no. 52 was issued, believing that the defendant was entitled to retain the funds to offset asserted cost savings the government claimed SCBI realized “by not working a second shift.” After the commencement of this litigation, however, in November, 2002, the government released payment in the amount of $78,999.00 to pay SCBI its additional costs incorporated into modification no. 52, issued on January 13, 2000.

In the joint stipulation of facts submitted to this court prior to the trial, the parties listed the plaintiffs claims and associated dollar figures as follows: “Defective Plans and Specifications” — $28,179.00; “Unrecognized Changes,” including adjustable sheaves, belts and limit switches — $54,493.48; “Loss of Productivity” — $75,079.00; “Subcontractor Claims” — $9,113.00; and “In House Extra Contract Administration” — $4,608.00; “T.A. McMullen Consultants” — $13,811.00; “Unresolved Cost of Changes” — $4,515.00; “Release of Retention” — $15,975.00, for a total of $205,773.48.

In its complaint, the plaintiff also alleges entitlement to damages due to differing site conditions, improper contract administration, failure to timely pay under the Prompt Payment Act, and failure to negotiate modifications in good faith. In this court, the government has filed a counterclaim against the plaintiff, claiming that the plaintiff failed to provide coordination drawings as required by the contract.

Defendant also alleges that the plaintiff did not adhere to the driving capacity for the AHUs as specified in the contract and failed to install belt guards or access door interlocks on each of the AHUs as required by the contract, resulting in costs incurred by the defendant to replace or correct rejected work. The total value of the government’s counterclaim demanded in the joint stipulation of facts is $57,459.00. As indicated above, the government is holding retainage of $15,975.00. DISCUSSION I.

Defective Specifications The plaintiff argues that it experienced additional direct costs due to changes in its planned performance resulting from errors and omissions in the government’s plans and specifications. According to the plaintiff, these deficiencies required SCBI to implement design changes and other work-around solutions not contemplated by either SCBI or the government at the time of the award to SCBI.

At the trial, and in the exhibits presented to the court, particularly in its March 3, 2000 claim filed with the contracting officer, the plaintiff set forth the specific areas regarding which it believes NASA’s design specifications of the MLP HVAC system were defective. In the joint stipulation of facts, SCBI seeks $28,179.00 in damages re-suiting from the alleged defective specifications.

In response, NASA argues that the contract clearly states that the drawings provided by the government were intended to be diagrammatic only and that many of SCBI’s damages would have been prevented had SCBI attended the pre-bid site visit and drafted the coordination drawings required by the contract. It is established in government contract law that whenever the government uses specifications in a contract, there is an accompanying implied warranty that the specifications are free from errors. See Robins Maint., Inc. v. United States, 265 F.3d 1254, 1257 (Fed.Cir.2001) (citing United States v.

Spearin, 248 U.S. 132, 137, 54 Ct.Cl. 187, 39 S.Ct. 59, 63 L.Ed. 166 (1918)); see also Blount Bros. Corp. v. United States, 872 F.2d 1003, 1007 (Fed.Cir.1989); Hol-Gar Mfg. Corp. v. United States, 175 Ct.Cl. 518, 525, 360 F.2d 634, 638 (1966); Neal & Co., Inc. v. United States, 36 Fed.Cl. 600, 627 (1996), aff'd, 121 F.3d 683 (Fed.Cir.1997). “The test for recovery based on inaccurate specifications is whether the contractor was misled by these errors in the specifications.” Robins Maint., Inc. v. United States, 265 F.3d at 1257.

As stated by the United States Supreme Court: “if the contractor is bound to build according to plans and specifications prepared by the owner, the contractor will not be responsible for the consequences of defects in the plans and specifications.” United States v. Spearin, 248 U.S. at 136-37, 39 S.Ct. 59 (citations omitted).

Under the Spearin doctrine, when the government provides a contractor with defective specifications, the government is deemed to have breached the implied warranty that satisfactory contract performance will result from adherence to the specifications, and the contractor is entitled to recover costs proximately flowing from the breach. United States v. Spearin, 248 U.S. at 136, 39 S.Ct. 59; see also Franklin Pavkov Constr. Co. v. Roche, 279 F.3d 989, 994-95 (Fed.Cir.), reh’g denied (2002) (citing Essex Electro Eng’rs, Inc. v. Danzig, 224 F.3d 1283, 1289 (Fed.Cir.2000); USA Petroleum Corp. v.

United States, 821 F.2d 622, 624 (Fed.Cir.1987); Ordnance Research, Inc. v. United States, 221 Ct.Cl. 641, 609 F.2d 462, 479-80 (1979)). “The compensable costs include those attributable to any period of delay that results from the defective specifications.” Essex Electro Eng’rs, Inc. v. Danzig, 224 F.3d at 1289 (citing La Crosse Garment Mfg. Co. v.

United States, 193 Ct.Cl. 168, 432 F.2d 1377, 1385 (1970)). “Unlike some situations in which the government has a reasonable time to make changes before it becomes liable for delay, ‘all delay due to defective or erroneous Government specifications are per se unreasonable and hence compensable.’” Essex Electro Eng’rs, Inc. v. Danzig, 224 F.3d at 1289 (quoting Chaney & James Constr. Co. v. United States, 190 Ct.Cl. 699, 421 F.2d 728, 732 (1970)); see also Daly Constr., Inc. v. Garrett, 5 F.3d 520, 522 (Fed.Cir.1993).

The doctrine of an implied warranty for government design specifications, articulated in United States v. Spearin, has been adopted and further developed by the United States Court of Appeals for the Federal Circuit: Spearin stands for the proposition that when the government includes detailed specifications in a contract, it impliedly warrants that (

i) if the contractor follows those specifications, the resultant product will not be defective or unsafe, and (ii) if the resultant product proves defective or unsafe, the contractor will not be hable for the consequences. Spearin, 248 U.S. at 136-37, 39 S.Ct. at 61. As with any contract-based claim, however, to recover for breach of warranty, a plaintiff must allege and prove (1) that a valid warranty existed, (2) the warranty was breached, and (3) plaintiffs damages were caused by the breach. San Carlos Irrigation and Drainage Dist. v.

United States, 877 F.2d 957, 959 (Fed.Cir.1989); accord Wunderlich Contracting Co. v. United States, 351 F.2d 956, 968, 173 Ct.Cl. 180[,199] (1965) (stating that a plaintiff asserting a claim for breach of an implied warranty of specifications has the “burden of establishing the fundamental facts of liability, causation, and resultant injury.”)____ [T]he implied warranty of specifications covers problems arising after performance of the underlying contract. See Poorvu v. United States, 420 F.2d 993, 190 Ct.Cl. 640 (1970). Hercules Inc. v.

United States, 24 F.3d 188, 197 (Fed.Cir.1994), aff'd, 516 U.S. 417, 116 S.Ct. 981, 134 L.Ed.2d 47 (1996). In addition, it is a basic tenet of this legal doctrine that: The implied warranty is not overcome by the customary self-protective clauses the government inserts in its contracts ... requiring the contractor to examine the site, to check the plans, and to assume responsibility for the work, including its safekeeping, until completion and acceptance. Al Johnson Constr. Co. v. United States, 854 F.2d 467, 468 (Fed.Cir.1988) (citing United States v. Spearin, 248 U.S. at 132, 39 S.Ct. 59).

The Court of Appeals for the Federal Circuit also commented on the competing interests often present in a defective specifications cases: We think the restriction of the implied warranty to those who have fulfilled the specifications, or tried and failed to do so because of the defects themselves, has strong policy behind it that would not be served by allowing the implied warranty to run to one who has not done what he contracted to do and fails to satisfactorily explain why not.

Any other exception should therefore be restricted to instances ... of manifest inequity, or to a deviation from the specifications shown to have been entirely irrelevant to the alleged defect. Al Johnson Constr. Co. v. United States, 854 F.2d at 470. Moreover, “[i]f a contractor enters into a contract aware of the fact of defective specifications, it is not entitled to recover on a claim based on these defective specifications.” NVT Techs., Inc. v. United States, 370 F.3d 1153, 1163 (Fed.Cir.2004) (quoting Robins Maint., Inc. v. United States, 265 F.3d at 1258).

The plaintiffs claim for defective plans and specifications totals $28,179.00. This amount is broken into ten separate claims, including claims for RFI nos. 7, 12, and 31; relocating AHUs 21, 23 and 26; fume cleaners; relocating electrical lights and piping; Lull forklift rental; extended welding equipment rental; unplanned escort costs and extended supervision. The plaintiff also identified the chilled water system as defective. On June 15, 1998, the plaintiff filed RFI no. 7 with NASA’s contracting officer, Terrance Crowley.

In RFI no. 7, SCBI stated: “New chilled water system in room 15b, pipe size 1/&”, elevation needs to be 7' 3", instead of 8' 10" due to obstacles in the way. Please Advise.” On July 1, 1998, Mr. Crowley approved the RFI and marked on the form that a contract modification would be issued. SCBI’s second alleged defective specification was set forth in SCBI’s June 24, 1998, RFI no. 12, which addressed obstructions requiring additional piping and fittings.

Specifically, SCBI’s RFI no. 12 stated: “As discussed in field because of existing obstructions (electrical panels & etc.) that it would be necessary to relocate the piping & penetrations for the heat exchanger. This will involve additional fittings & piping. Please Advise.” On July 1, 1998, Terrance Crowley approved the RFI and again indicated that a contract modification would be issued.

Although NASA’s contracting officer initially indicated that contract modifications would be issued on RFI nos. 7 and 12, in a letter sent to SCBI from NASA on August 7, 1998, NASA changed its position regarding issuing a contract modification and stated that: “After further review of these responses, we have determined that the instruction provided is within the base contract requirements, and does not require change orders for implementation.” The MLP contract, at

section 15050,

part 1.3, SD-04 Drawings, required the contractor to prepare coordination drawings precisely to indicate conflict or clearance problems. During the trial in this case, Mr. Midgette, who drafted SCBI’s certified claim and was the plaintiffs expert at trial, was asked whether the chilled water issue was something that could have been identified if SCBI had produced the coordination drawings. In response, Mr. Midgette stated: “There’s a high probability that that would have been noticed in the coordination process.” Additionally, at the trial, Mi'.

West, the government’s expert witness, indicated that SCBI would have “mapped out those fittings while preparing shop drawings or coordination drawings,” which, as stated above, SCBI did not produce for MLP-1. On July 29, 1998, SCBI submitted RFI no. 31, which was answered on August 4, 1998. In the RFI, SCBI stated that it was encountering extra fittings due to routing problems and conflicts. In his response, Terrance Crowley indicated that no change order and no contract modification would be provided.

Also in his response, Terrance Crowley directed SCBI to “provide all fittings as required for a complete system,” and referred to

section 15003,

part 1.3 of the contract, which states: “Drawings are diagrammatic.

They are not intended to be absolutely precise; they are not intended to specify or to show every offset, fitting, component and exact configuration required.” In response to NASA’s refusal to provide a contract modification for RFI no. 31, and NASA’s August 7,1998 letter, SCBI wrote to NASA rejecting NASA’s position that the diagrams provided for the contract were intended to be purely diagrammatic, stating that: “The prints that we received from you should be final and workable drawings.” Additional defective specification claims presented by SCBI include costs generated from RFI no. 9, filed by SCBI on June 19, 1998, for additional man-hours required to lay out all new AHUs for work package no. 3.

In the RFI, SCBI indicated that all of the AHUs “have some type of interferences ____” In response to SCBI’s RFI no. 9, contracting officer Terrance Crowley indicated that a contract modification would be issued. As a result, NASA issued contract modification no. 8 on August 5, 1998.

In modification no. 8, NASA responded to RFI no. 9 and stated that “the contractor [SCBI] is directed to provide labor, materials, and equipment to relocate AHU’s 21, 24 & 26____” In its claim, and at trial, SCBI argued that although NASA recognized RFI no. 9 to require additional work and indeed issued a contract modification, it now refuses to pay SCBI for the additional work. The defendant has presented no evidence to dispute the plaintiffs claim that NASA indeed should have paid SCBI for its performance under modification no. 8 and the plaintiff seeks $1,732.89 as compensation for this work.

The court, therefore, finds that plaintiff is entitled to that amount. Similar to the issue regarding RFI no. 9, the plaintiff claims that NASA failed to pay for the contract modification issued under modification no. 16, which addressed plaintiffs RFI nos. 25 and 25A. In modification no. 16, contracting officer Terrance Crowley directed SCBI to “provide labor, materials, and equipment to rotate the AHU # 26 & 30 blower modules 180 degrees ----” In its claim, SCBI alleges that NASA never paid it for the work performed under contract modification no. 16, and seeks $1,497.49 in uncompensated work.

The government’s expert, Mr. West, stated that the necessity for this work would have been discovered during the coordination drawing phase and stated that “any interferences would have been noticed at that time.” Regardless of Mr. West’s opinion that the interference would have been recognized, SCBI performed work authorized and directed by NASA under a specific modification to the original terms of the contract, contract modification no. 16. Moreover, NASA has brought forth no evidence that it has paid SCBI for its costs in doing the work, or that the government deleted the requirement from the contract.

This court, therefore, finds that SCBI is entitled to its costs under modification no. 16, totaling $1,497.49. The plaintiffs next claim for alleged defective specifications arises from SCBI’s RFI nos. 55, 56, and 57, which addressed the requirement for SCBI to remove existing lights due to conflicts with the new supply air duct line. On June 22,1998, NASA responded to each of these RFIs, indicating that contract modifications would not be issued and directing SCBI to modify light stems, remove lights, and relocate lights per NASA’s field inspector’s recommendation.

In response to each of these RFIs, NASA referenced

section 150003,

part 1.3 of the contract, which states that the diagrams were not intended to accurately represent all dimensions of the equipment in the MLPs. The remainder of plaintiffs claims, described as part of plaintiffs defective specification claims when submitted to the contracting officer, relate to additional costs incurred for renting equipment and providing additional escort personnel.

Specifically, SCBI claims additional expenses for Lull forklift rental, stating that “[d]ue specifically to the changes and out of sequence work SCBI was forced to keep the Lull forklift available for most of the project.” SCBI stated that it intended to rent the forklift for only 14 days, but, instead, was required to keep it for 96 days. Therefore, the plaintiff requests reimbursement for the additional 82 days in the amount of $1,505.64. In addition, SCBI requests reimbursement for additional expenditures it incurred to rent welding equipment.

SCBI claims that, similar to the Lull forklift, SCBI was required to keep the welding equipment for additional days. SCBI requests reimbursement of $11,505.37 for additional costs incurred for welding equipment rental in its claim to the contracting officer, although the amount is not specifically included in the plaintiffs complaint or in the joint stipulation of facts.

Beyond the information presented in plaintiffs claim to the contracting officer and a general claim for damages resulting from defective specifications in the complaint, plaintiff presents little evidence to support a nexus between the alleged extended Lull forklift and welding equipment rental and the alleged defective specifications. For these reasons, plaintiffs claims for $11,505.37 and $1,505.64 are denied. SCBI’s final claims are for unplanned escort costs and unplanned supervision costs. At the trial, plaintiffs expert, Mr.

Midgette testified that when the MLPs were located at the vehicle assembly building, escorts were required. Additionally, in its claim, SCBI quoted amendment no. 1 to the contract, which responded to a question from a bidding contractor. Amendment no. 1 stated that: “Should the need arise to have work completed in an area requiring escorts, the additional requirement would be considered a change within the general scope of the contract, and any cost and/or

schedule impacts arising therefrom will be handled in accordance with the contract’s Changes clause.” SCBI alleges that it incurred an additional cost of $1,513.89 for escorts in the vehicle assembly building. SCBI also alleges it is entitled to $2,063.00 for additional costs incurred for extra supervision. SCBI argues that government caused delays extended work on MLP-1 by ten days beyond its scheduled end date of October 13,1998. The MLP project was planned to end on October 13, 1998, but did not actually end until October 23, 1998.

SCBI, however, claims it is entitled only to eight days compensation for this extra supervision, or $2,086.78. At the trial, Mr. Midgette testified that MLP-1 was extended eight days from its initial milestone completion, that the plaintiffs claim, however, was “not a delay claim in the sense that a time extension was required,” but was simply a claim for additional supervision because of the extension.

During the performance of this contract, SCBI submitted more than 50 RFIs and NASA responded by modifying the contract more than 50 times, issuing change orders to address the expenses SCBI incurred for extra work. As discussed more fully below, the court finds that SCBI’s failure to produce coordination drawings and attend the pre-bid site visit contributed significantly to SCBI’s encountering interference and alleged defective specifications, including plaintiffs claim for extra on-site escort services and extra supervision.

After reviewing the trial testimony and the documents submitted at trial, the court finds that SCBI is not entitled to recover for its claimed additional administrative and supervision costs, or its claims for additional rental equipment costs. Outside of conclusory amounts presented in its certified claim to the contracting officer, SCBI fails to substantiate any amount directly related to its extra administrative costs. For example, in none of the testimony presented at trial did SCBI discuss direct administrative costs. The only testimony presented was by Mr.

Midgette, who simply discussed the amounts requested in plaintiffs certified claim, without presenting any supporting documentation to verify the additional costs SCBI claims to have expended. The plaintiffs lack of evidence regarding direct costs is applicable also to its claim for additional days required to rent the Lull forklift and welding equipment. Regarding these claims, no testimony, receipts or other documentation was offered by the plaintiff sufficient to verify the plaintiffs claims or amounts regarding its rental equipment.

Furthermore, because the court finds that the plaintiffs failure to attend the pre-bid site visit and to conduct the coordination drawings contributed to the difficulties presented during performance on this project, the court finds that SCBI contributed significantly to its alleged, additional costs incurred for administrative expenses and equipment rental. For these reasons, the plaintiffs claims for extra administrative and supervision costs, as well as for extra costs for rental equipment is denied. II.

Differing Site Condition Arising From the Presence of Lead-Based Paint In its complaint, the plaintiff claimed damages due to the existence of a differing site condition alleging that: “SCBI encountered a type 1 differing site condition in that surfaces, duets, and pipes were contaminated with lead-based paint.” A Type I differing site condition consists of “subsurface or latent physical conditions at the site which differ materially from those indicated in th[e] contract.” FAR 52.236 — 2(a)(1) (Apr.1984).

To establish entitlement to an equitable adjustment due to a Type I differing site condition, a contractor must prove by a preponderance of the evidence that: [T]he conditions indicated in the contract differ materially from those actually encountered during performance; the conditions actually encountered were reasonably unforeseeable based on all information available to the contractor at the time of bidding; the contractor reasonably relied upon its

interpretation of the contract and contract-related documents; and the contractor was damaged as a result of the material variation between expected and encountered conditions. Comtrol, Inc. v. United States, 294 F.3d 1357, 1362 (Fed.Cir.2002); see also H.B. Mac. Inc. v. United States, 153 F.3d 1338, 1345 (Fed.Cir.1998). As described above, on July 1,1998, NASA stopped SCBI’s performance and required it to abate lead-based paint present on the decks of MLP-1. NASA then asked SCBI to conduct the lead abatement work, which SCBI completed through a subcontractor, Sunrise Systems of Brevard, Inc.

The presence of the lead-based paint on the MLP structure presented an unforeseeable differing site condition as the plaintiff claims. There was no indication in the contract documents that the MLP surfaces contained lead-based paint, and a reasonable inspection of the MLP would not have revealed the presence of lead-based paint. The remaining issue, therefore, is whether SCBI has been fully compensated for the work and impacts caused by the necessity to stop progress and conduct the lead abatement prior to continuing.

NASA provided payment for the lead abatement work on MLP-1 through several contract modifications. Modification no. 2, dated August 4, 1998, required SCBI “to provide labor, materials and equipment to abate lead paint at required floor and wall penetrations in MLP-1 ____” Modification no. 12, dated August 6, 1998, required SCBI “to provide labor, materials, and equipment to abate lead paint at penetrations in Compartment 16B.” Modification no. 18, dated August 19, 1998, required SCBI to provide portable filtration units for lead particulate removal.

Modification no. 19, dated September 8, 1998, required SCBI to provide personnel with protective masks for welding in areas containing lead paint. Modification no. 28, dated December 4, 1998, paid SCBI $10,963.00 for modification no. 2, $1,816.00 for modification no. 12, $6,117.00 for modification no. 18, and $18,986.00 for modification no. 19. In SCBI’s first certified claim to the contracting officer, filed March 3, 2000, SCBI requested $9,258.07 for additional costs incurred in conducting the lead abatement work.

Specifically, SCBI requested reimbursement for temporary pipe supports, which SCBI used when they could not drill into the MLP to permanently connect the piping. On October 24, 2002, after the litigation in this case had commenced, almost three years after SCBI filed its certified claim to the contracting officer, NASA approved unilateral modification no. 54, which paid SCBI $8,364.32 for the temporary pipe supports. In the modification, the government stated that: “Claimed amount of $9,258.07 reduced by $893.75 of material costs.

This amount was included in the material costs for temporary pipe supports paid under Modification No. 35 for MLP-2.” As a result of unilateral modification no. 54, which awarded plaintiff additional money, including $8,364.32 for temporary pipe supports, SCBI resubmitted its claim to NASA on June 4, 2003. In its modified claim, SCBI recognized that NASA had paid SCBI its claim for temporary pipe supports and stated that it accepted the $893.75 reduction for material costs paid in modification no. 35.

In its modified claim, SCBI, therefore, listed “0” as the amount owed for temporary pipe supports, and stated that “Differing Site Conditions — conceded in Mod No. 54,” indicating that plaintiff had been fully paid for the differing site condition encountered because of the presence of lead-based paint. SCBI stated in its modified claim to the contracting officer that the temporary pipe support claim was presented only “to continue to illustrate NASA’s inappropriate actions regarding the administration of this contract.” Additionally, at the trial, Mr.

Midgette testified that SCBI “kept the facts and the narrative in [SCBI’s modified claim], but illustrated that while we were requesting $9,258.07 we’re now requesting zero and note that the government paid that through mod 54, that was issued on October 23, 2002.” In sum, SCBI has been compensated $38,839.32 for the lead abatement work and all claims by the plaintiff for damages resulting from a differing site condition have been fully satisfied when NASA issued contract modification no. 54.

Because SCBI has been fully compensated, and admits to receiving full compensation, SCBI is not entitled to further compensation under its claim of a differing site condition for the lead abatement work on MLP-1. Any claim for loss of productivity related to the differing site condition will be addressed below. III. Unrecognized Changes SCBI claims $54,493.00 for unrecognized changes added during the punch list phase of its performance.

The claims are specifically for work done on the AHU belts and sheaves, which were wearing prematurely, as well as for the contractually required belt guards and limit switches in the doors of the AHUs. SCBI originally submitted this certified claim to the contracting officer as eight discrete items, totaling $65,815.00. NASA subsequently paid six of SCBI’s eight claims through unilateral modification no. 54. SCBI’s two remaining claims are $3,518.48 for alleged additional work completed on the adjustable sheaves and belts, and $50,975.00 claimed for the limit switches.

SCBI arrives at its $50,975.00 claim for the limit switches by arguing that the $35,000.00 reduced from the MLP contract under modification no. 53 and the $15,975.00 retainage withheld from SCBI for reprocurement costs were unwarranted. In return, the defendant has counterclaimed against SCBI for $54,975.00, the costs of reprocuring the work on the belts and sheaves from Ivey’s. A.

Belts and Sheaves The premature wearing of the belts and replacement of the AHU sheaves, as well as the requirement for SCBI to provide belt guards or limit switches, were testified to extensively at the trial by witnesses for both parties. As described above, on July 8,1999, NASA issued a non-conformance report to SCBI, indicating that the drive belts on the AHUs were wearing prematurely. A few months later, on October 7, 1999, NASA issued SCBI a punch list that directed SCBI to remove the adjustable type sheaves and replace them with fixed sheaves.

In response, in November, 1999, SCBI attempted to correct the wearing problem with the AHU belts by replacing the factory installed adjustable sheaves with fixed sheaves for two of the AHUs. SCBI also replaced all of the belts on 9 of the 11 AHUs, performed a sheave alignment check and adjustment on all 11 AHUs and tightened the belts per the manufacturer’s recommendations in its operations and maintenance manual.

After SCBI completed this work, on November 22, 1999, NASA sent a letter to Carroll Air, SCBI’s AHU supplier, stating that the wearing issue “was not a maintenance problem, but it instead appears to be a production problem.” As a purchaser of supplies and services, the government is entitled to the contractor’s strict compliance with the contract specifications. See Granite Constr. Co. v. United States, 962 F.2d 998, 1006-07 (Fed.Cir.1992), cert. denied, 506 U.S. 1048, 113 S.Ct. 965, 122 L.Ed.2d 121 (1993); Cascade Pac. Int’l v. United States, 773 F.2d 287, 291 (Fed.Cir.1985); Peters v.

United States, 694 F.2d 687, 695 (Fed.Cir.1982). Strict compliance with the government’s specifications is important in order to insure that a contractor does not gain an advantage in the bidding process by the use of different products. See Peters v. United States, 694 F.2d at 695. The government, however, “should not be permitted to direct the replacement of work in situations where the cost of correction is economically wasteful and the work is otherwise adequate for its intended purpose. In such cases, the government is only entitled to a downward adjustment in the contract price.” Granite Constr. Co. v.

United States, 962 F.2d at 1007. The court’s analysis of SCBI’s requirement to provide conforming belts and sheaves, as well as belt guards or limit switches, begins with the contract. The relevant

section of the contract addressing the belts and sheaves is

part 2.1.1.1, which states that the “[f]an drive shall be by V-belt designed for not less than 150 percent of the connected driving capacity.” This requirement must be considered along with

part 2.2.5, which specified the use of McQuay AHUs, or their equal. Specifically, in addressing the filters to be used in the AHU, the contract stated “filters shall be installed in a frame to ensure filtering of all moving air before entry into unit (McQuay 3CB-301B or equal) .... ” In its post-trial brief, the defendant recognizes that premature belt wear may be caused by several factors. First, premature belt wear may be caused simply by a loose belt, or by a misalignment between the motor sheave and the fan sheave. The defendant, however, through its expert, Mr.

West, asserts that the premature belt wear was caused by a low drive service factor. As noted above, the drive service factor required by the contract was 150 percent of the connected driving capacity, or a 1.50 drive service factor. The AHUs provided by SCBI for the MLP project were rated at a drive service factor of 1.18 to 1.24, below the drive service factor required by the contract. The defendant’s expert, Mr. West, therefore, concluded that it was SCBI’s non-conformance with the contract requirements that caused the belts to wear prematurely.

By letter dated October 12, 1999, the contracting officer, Clarence Floyd, directed SCBI to “repair or replace this defective equipment no later than 10-20-99 without the Government taking further actions.” The defendant argues that despite this letter, SCBI did not fix the problem with respect to the belts. After being informed by NASA that the AHU belts were wearing prematurely, in a letter dated February 16, 2000, the manufacturer of the AHUs, McQuay, proposed to replace the belts and sheaves so as to deliver a higher service factor to the units.

McQuay proposed that the cost be split between McQuay, Carroll Air, and SCBI. SCBI did not accept this proposal. Instead, SCBI wrote to NASA the following day, February 17, 2000, demanding that NASA furnish a design and issue a change order to SCBI to perform the work. Because SCBI failed to properly correct the belt problems associated with the AHUs, by issuance of modification no. 53 on March 29, 2000, the government deleted the requirement regarding belts and sheaves on all MLPs and AHUs from plaintiffs contract.

Thereafter, the government entered into a contract with Ivey’s in the amount of $54,475.00, to replace the plaintiffs defective work. The defendant acknowledges that $3,500.00 of the reprocurement contract with Ivey’s did not relate to the plaintiffs contract with the government. Therefore, the government does not seek this amount from the plaintiff. According to the testimony of the contracting officer, Clarence Floyd, when NASA reprocured for the new sheaves and belts through Ivey’s, the AHUs were fitted with double belted assemblies, which doubles the drive service factor of the single belt assembly.

NASA claims that after completion of the work by Ivey’s, NASA obtained a higher service factor on the AHUs, which ultimately resolved the long standing problem of the AHU belts wearing prematurely. In rebuttal testimony, the plaintiffs expert, Robert Ketchum, admitted to the court as an expert in mechanical engineering and forensic engineering as related to the skill of mechanical engineering, rejected Mr. West’s finding that the drive service factor for the AHU belts was properly represented by the 1.18 and 1.24 numbers in the McQuay submittals. Mr.

Ketchum indicated that the definition of a belt drive service factor is dependent upon the amount of horsepower for which a belt is rated, divided by the amount of horsepower the system to which the belt would be installed contains. Mr. Ketchum gave the example of a belt which was rated for 10 horsepower being placed on a drive system with a maximum output of 7.5 horsepower. According to testimony provided by Mr. Ketchum, this would provide a drive service factor of 1.5 or 10 divided by 7.5. Although this calculation actually would provide a drive service factor of 1.33, not 1.5, the point of Mr.

Ketchum’s testimony was to identify the proper drive service factor indicated on the McQuay submittals. In his testimony, Mr. Ketchum also stated that the number identified as the “actual drive service factor” on the McQuay submittals was listed in the “supply fan”

section of the AHU submittal, indicating that only the supply fan had a service factor of 1.18 and not necessarily that the belts were to have a service factor of 1.5. On the submittals provided by SCBI and McQuay, the column beneath the supply fan specifics is titled “drives.” In this section, the belts to be used on the AHUs are identified as type “A23.” In his testimony, Mr.

Ketchum stated that, in his experience, “A-class” belts were ordinarily rated to withstand at least a 5 horsepower load, and the AHU supply fan motor was identified as a 3 horsepower motor, which would result in a drive service factor of greater than 1.5. In the plaintiffs claim to the contracting officer, SCBI argued that the belts were wearing prematurely as a result of NASA personnel operating the equipment beyond specified conditions.

Although in its claim, SCBI did not expand its explanation of how NASA personnel were improperly operating the AHUs, at the trial, SCBI’s project superintendent, Curtis Reed, explained that the belts were operating satisfactorily for a week or two, and began to wear prematurely only because NASA personnel were constantly turning the AHUs on and off. According to Mr. Reed, this continual stopping and starting of the AHUs eventually caused burn spots on the belts and caused the belts to wear down.

The record does not support plaintiffs expert’s theory that the AHU drive belts wore prematurely simply because of how NASA personnel operated the equipment. As defendant’s expert, Mr. West, indicated in his testimony, AHUs normally operate by turning on and off depending on the temperature settings. It also is clear from the evidence presented that the wearing problem with the AHU belts began almost immediately after the AHUs were installed. Even SCBI’s own project superintendent, Curtis Reed, admitted that the belts began to show problems within two weeks after operations began.

Although the evidence presented by the defendant does not clearly indicate that the belt problem was directly related to the drive service factor, the court cannot ignore the fact that the belt problem disappeared only after Ivey’s installed the new belts and sheaves. Therefore, whether it was a drive service factor or a maladjusted sheave problem is not clear. What is clear, however, is that SCBI provided defective AHUs, which did not operate properly or in conformance with the contract. As described above, the government is entitled to the contractor’s strict compliance with the contract specifications.

See Granite Constr. Co. v. United States, 962 F.2d at 1006-07. Therefore, the court finds that the plaintiff, SCBI, is not entitled to additional compensation for its work undertaken to correct the nonconforming AHUs. B. Door Interlock Switches and Belt Guards The second part of the plaintiffs claim for unrecognized changes alleges that SCBI is entitled to $50,975.00 for door interlock switches required by the contract for the AHUs.

Section 15855,

part 2.1.1.1 of the contract states that: “A belt guard shall be provided inside the cabinet, or the access door shall be interlocked with the supply fan so that power to the fan will be interrupted when the access door is opened.” The record reflects that belt guards are typically constructed of steel and steel mesh in a way that the fan belt can be observed, but will prevent accidental contact. As described at the trial, the guard can be fabricated in a sheet metal or welding shop and installed by a mechanical contractor.

Fan interlock switches are positioned in the AHU such that the switch is activated and power to the fan is interrupted when the access door is opened. The switches may be purchased at an electrical supply house and installed by either an electrical contractor or a mechanical controls contractor. When SCBI provided the AHUs to NASA for the MLP contract, the AHUs supplied by SCBI had neither belt guards nor interlock switches. Instead, SCBI furnished a product with a bolt on the access door to prevent the doors from being opened without a specific kind of tool.

Curtis Reed, SCBI’s project superintendent, admitted at trial that the units provided by McQuay were not in conformance with contract specifications. Mr. Reed, stated: I even called the McQuay people and I said, this don’t quite meet the specs and they said the reason those units don’t come in like that is they did not have time to get them to this project in that time frame with doing those things. So the next best thing that they could do was provide a system where you had to have a special wrench to open the door. And Armando was in on that. Dave Park was in on that. Everybody knew about that.

And they said it’s not sufficient. They told me verbally, not sufficient then, that we have to have belt guards or an interlock. So I proceeded on and thought no more of it until way later in the project, the issue came up which was about four months later. It is the plaintiffs position that SCBI’s failure to provide the required belt guards or interlock switches was resolved in discussions held in June, 1998, before the AHUs were delivered to NASA, and that NASA had accepted the units provided by McQuay.

At the trial, SCBI’s project superintendent, Curtis Reed, testified that he had discussed the belt guard and interlock requirement with several individuals from NASA. Initially in his testimony, Mr. Reed stated that: “I said, well, what about belt guards and they said, don’t need them.” Additionally, when the units arrived, SCBI states that NASA paid McQuay in full, and did not issue a non-conformance report based on SCBI’s failure to provide belt guards or interlock switches in accordance with the contract.

Based on these actions, SCBI argues that it “reasonably understood that NASA had accepted the units as provided by McQuay.” Mr. Reed also testified that after informing NASA that SCBI only could provide an alternate safety system that included the lock and special wrench, NASA informed Mr. Reed that the system was not sufficient. On December 7, 1999, after SCBI had already installed the AHUs, SCBI submitted a deviation request, which was denied by NASA’s contracting officer.

In a January 27, 2000 letter from McQuay to Carroll Air, SCBI’s AHU supplier, McQuay stated that the AHUs used for the MLP project “do not have any offering for belt guards.” The government’s expert, Michael West, stated in his report, and testified at trial, that although it is correct that the AHU manufacturer did not offer either a belt guard or interlock switch, SCBI easily could have met the contract requirement of providing belt guards or installing interlock switches. As described in Mr.

West’s expert report, the belt guards themselves were neither sophisticated, nor complicated, in that they were simply a metal mesh construction that covered the moving sheaves and belts to prevent injury. The defendant claims that because SCBI failed to provide the guards or interlock switches as required by the contract, for safety reasons, the government exercised its right under the clause at FAR 52.246-12, Inspection of Construction (Aug.1996), to replace and correct the work. FAR 52.246-12 states in relevant part that: (

f) The Contractor shall, without charge, replace or correct work found by the Government not to conform to contract requirements, unless in the public interest the Government consents to accept the work with an appropriate adjustment in contract price. The Contractor shall promptly segregate and remove rejected material from the premises. (

g) If the Contractor does not promptly replace or correct rejected work, the Government may (1) by contract or otherwise, replace or correct the work and charge the cost to the Contractor or (2) terminate for default the Contractor’s right to proceed. 48 C.F.R. § 52.246-12. The court concludes from the evidence provided, and as admitted to by SCBI’s project superintendent, Curtis Reed, that SCBI failed to adhere to the contract requirements when it provided the AHUs without the required belt guards or interlock switches, (see contract

section 15855,

part 2.1.1.1). SCBI’s failure permitted NASA to reduce SCBI’s contract amount, reprocure the contract requirements under FAR 52.246-12, and charge the excess cost of the reprocurement to SCBI. See E.R. Smith Constr. Co., DOTCAB No. 1077, 80-1 BCA ¶ 14,386, at 70,936, 1980 WL 2382 (1980) (holding that in situations in which the government does not terminate a contractor, but rejects nonconforming work, the government is entitled to recover the costs of reprocuring the contractor’s faulty work). In unilateral modification no. 53, NASA reduced SCBI’s contract amount by $35,000.00, effective March 29, 2000.

NASA then reproeured new belts, sheaves, and belt guards through a reprocurement contract with Ivey’s. In his contracting officer’s final decision denying SCBI’s certified claim, Clarence Floyd, NASA’s contracting officer stated that: Under modification no. 53 the contract was decreased by $35,000.00, which was an estimate of the Government’s cost to complete the work under a re-procurement contract. This modification further noted that the Contractor would be held liable for any excess costs....

Upon completion of the re-procurement contract, the Government will notify the Contractor regarding the additional costs over and above the $35,000 decrease already taken in Modification 53. The full price to the government to reprocure SCBI’s faulty work was $50,975.00 ($54,-475.00 — $3,500.00 not attributable to the plaintiff). SCBI makes no argument that the government failed to mitigate its damages in reprocuring the contract work, so no dispute exists regarding the cost of the reprocurement contract. The court, therefore, finds that NASA is entitled to recover $50,975.00.

NASA has already reduced SCBI’s contract by $35,000.00, leaving a balance of $15,975.00 that SCBI owes the government for the government’s remaining reprocurement costs. This amount equals the $15,975.00 withheld by the government as retainage to cover the additional costs incurred to reprocure for SCBI’s faulty work. No evidence was provided to the court to indicate that NASA had paid SCBI for the belts, sheaves, interlock switches and belt guard work and that, therefore, the defendant needs to recover that amount back from the plaintiff.

Based on the record, the court, therefore, finds that NASA is entitled to retain the $15,975.00, which represents the difference between the cost of Ivey’s reprocurement contract and the $35,000.00 NASA reduced from SCBI’s contract, and the government is owed no additional money for belts, sheaves, interlock switches and belt guards. IV. Loss of Productivity The plaintiffs largest claim in this case is for “loss of productivity,” for which it seeks $64,816.00.

SCBI argues that it is entitled to compensation for overall loss of productivity that was a direct result of government generated changes and differing site conditions. SCBI also argues that its work was effectively accelerated, which resulted in inefficiency.

Referring to its certified claim to the contracting officer, SCBI stated that “a contractor who is forced to accelerate its work suffers a percentage decline in productivity among the entire work force due to work force suspensions, loss of learning, and out-of-sequence production, all of which result in confusion and interruption of the orderly progression of work.” SCBI claims that the acceleration, delays and disruptions resulted from the government’s failure to allow adequate access to the project site, to furnish complete and accurate plans and specifications, failure to sufficiently and timely respond to SCBI’s RFIs, failure to process SCBI’s change orders in a timely manner so as to allow payment for extra work actually performed and accepted by the government, and to the existence of differing site conditions.

In its claim to the contracting officer, SCBI presented a loss of productivity claim, and stated that from the start of the MLP project, SCBI was prevented from performing its work as scheduled. Mr. Midgette, plaintiffs expert, also testified at trial that the disruptions caused by the government caused the plaintiff to resequence its work throughout the contract.

Although in its complaint, the plaintiff includes counts listing claims for defective specifications, differing site conditions, improper contract administration, failure to timely pay under the Prompt Payment Act and failure to negotiate modifications in good faith, SCBI did not present a “delay” claim to the contracting officer or to this court, nor did the plaintiff present a specific loss of productivity count in its complaint in this court. Presumably, plaintiffs loss of productivity claim falls under the improper contract administration count in SCBI’s complaint.

The contract allowed 425 calendar days from the April 3, 1998 notice to proceed for the work under the contract to be completed. The contract completion date was listed as December 28, 1999. The contractor was to complete its work within a specified work sequence and contract windows established by the government. The loss of productivity claim before this court is for work performed on MLP-1. It is not clear from the record presented to the court, however, whether or not there were delays on MLP-1. Mr. Allison, SCBI’s project manager, although not certain, thought the project on MLP-1 ran over some 9 or 10 days.

The plaintiffs expert, Michael Midgette suggested that the work on MLP-1 was extended 8 days. The government’s expert, Mr. Doran, testified that the project was “not delayed substantially” but also pointed out that plaintiff did not present a delay claim. Therefore, any delays relied on by the plaintiff for entitlement to damages must be offered to support SCBI’s loss of productivity claim.

A loss of productivity claim “is based upon the theory that individual compensable changes to a Contract, taken as a whole, can have such a disruptive effect on the contractor’s performance that the contractor has a compensable claim for costs in addition to the amounts of its individual change orders.” Jackson Constr. Co., Inc. v. United States, 62 Fed.Cl. 84, 103-04 (2004) (citing J.A. Jones Constr. Co., ENGBCA Nos. 6348, 6386-6391, 00-2 BCA ¶ 31,000, at 153, 107, 2000 WL 1014011 (2000); McMillin Bros.

Constrs., Inc., EBCA No. 328-10-84, 91-1 BCA ¶ 23,-351, at 117, 102-05, 1990 WL 140900 (1990), aff'd, 949 F.2d 403 (Fed.Cir.1991); Bechtel Nat’l. Inc., NASA BCA No. 1186-7, 90-1 BCA ¶ 22,549, at 113, 177-78, 1989 WL 160470 (1989)). The government has a duty not to act in a way that will hinder or delay the contractor’s performance. See Malone v. United States, 849 F.2d 1441, 1445 (Fed.Cir.1988), opinion modified on other grounds, 857 F.2d 787 (1988); SMS Data Prods. Group, Inc. v.

United States, 17 Cl.Ct. 1, 6 (1989) (“The Government has an implied obligation to refrain from willfully or negligently interfering with a contractor’s performance.”). In order for the government to be found liable for delay a plaintiff must demonstrate that the government caused the plaintiff a compensable injury. See Servidone Constr. Corp. v. United States, 931 F.2d 860, 861 (1991); Boyajian v. United States, 191 Ct.Cl. 233, 239-47, 423 F.2d 1231, 1235 (1970).

The government, therefore, is not liable for breach of contract, or causes of action that rely upon “severe defects” in contract drawings, or government hindrance of performance, unless SCBI proves that the alleged defects, changes, or hindrances negatively impacted costs and performance of the contract. Loss of productivity claims can be difficult to prove. Experts are generally relied on to develop and document such claim.

According to the United States Court of Claims: It is a rare case where loss of productivity can be proven by books and records; almost always it has to be proven by the opinions of expert witnesses. However, the mere expression of an estimate as to the amount of productivity loss by an expert witness with nothing to support it will not establish the fundamental fact of resultant injury nor provide a sufficient basis for making a reasonably correct approximation of damages. Luria Bros. & Co. v. United States, 177 Ct.Cl. 676, 696, 369 F.2d 701, 713 (1966) (citing Wunderlich Contracting Co. v.

United States, 173 Ct.Cl. 180, 199, 351 F.2d 956, 968 (1965)). Plaintiff has claimed damages for loss of productivity, not delay. The proof methodology acknowledged by courts to prove delay damages, however, is instructive and relevant to document a loss of productivity claim. In a classic delay claim, one established way to document delay damages is through the use of Critical Path Method (CPM) schedules, combined with an analysis of the effects of government-caused events upon the critical path of the project.

In establishing the causal link between the government’s alleged wrongful acts and the delay, “the contractor must show that the government’s actions affected activities on the critical path of the contractor’s performance of the contract. However, in order to properly demonstrate delay to a project, the CPM

schedule must be kept current to reflect any delays as they occur.” Fortec Constructors v. United States, 8 Cl.Ct. 490, 505 (1985), aff'd, 804 F.2d 141 (Fed.Cir.1986). “The required nexus between the government delay and a contractor’s failure to complete performance at some unspecified earlier date cannot be shown merely by hypothetical, after-the-fact projection.” Interstate Gen. Gov’t Contractors, Inc. v. West, 12 F.3d 1053, 1060 (Fed.Cir.1993). Part of understanding that an activity belongs on the critical path of a project also is an understanding of how that activity affects the other activities.

See Mega Constr. Co., Inc. v. United States, 29 Fed.Cl. 396, 424-25 (1993). “A general statement that disruption or impact occurred, absent any showing through use of updated CPM schedules, logs or credible and specific data or testimony, will not suffice to meet that burden.” Preston-Brady, Co., Inc., V.A.B.C.A. Nos. 1892, 1991, 2555, 87-1 BCA (CCH) ¶ 19,649, at 99,520, 1987 WL 41248 (1987), clarified on denial of reconsideration, V.A.B.C.A. Nos. 1892, 1991, 2555, 87-2 BCA (CCH) ¶ 19,925, 1987 WL 46592 (1987). In Sauer, Inc. v.

Danzig, 224 F.3d 1340, 1348 (Fed.Cir.2000), the United States Court of Appeals for the Federal Circuit recognized the importance of proving the impact on the

schedule of a project in order to prove a loss of productivity or loss of efficiency claim. In Sauer, the plaintiff argued that the ASBCA wrongfully applied the standard for disruption damages, or loss of productivity, by requiring the plaintiff to “establish that overall contract completion was excusably delayed.” Id, at 1348. In rejecting the ASBCA’s analysis, the Federal Circuit stated that a plaintiff “need not establish delay to overall contract completion to succeed on its disruption claim.” Id. The Federal Circuit went on to state in Sauer that, “if the Navy’s failure to follow the crane-installation

schedule provided in the ... Contract can properly be considered a change or a constructive change — a matter not decided by the Board — then any increased costs flowing directly and necessarily from that change would be compensable.” Id. at 1349 (citing Electronic & Missile Facilities, Inc. v. United States, 189 Ct.Cl. 237, 416 F.2d 1345, 1361 (1969)); Paul Hardeman, Inc. v.

United States, 186 Ct.Cl. 743, 406 F.2d 1357, 1361-63 (1969) (noting that the allowable equitable adjustment is “the difference between what it cost [the contractor] to do the work and what it would have cost [the contractor] if the unforeseen conditions had not been encountered”) (internal quotation omitted). As stated in the Federal Circuit’s Sauer decision, an overall delay in the contract is not necessary to recovery for a loss of productivity claim; however, the plaintiff must still prove, through schedules

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