ASBCA 61184

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of - ) ) KiewitPhelps ) ASBCA No. 61184 ) Under Contract No. W9128F-12-C-0023 ) APPEARANCE FOR THE APPELLANT: Vivian Katsantonis, Esq. Watt, Tieder, Hoffar & Fitzgerald, L.L.P. McLean, VA APPEARANCES FOR THE GOVERNMENT: Michael P. Goodman, Esq. Engineer Chief Trial Attorney Stanley E. Tracey, Esq. Thomas J. Ingram, Esq. Engineer Trial Attorneys U.S. Army Engineer District, Omaha Allie E. Vandivier, Esq. Engineer Trial Attorney U.S. Army Engineer District, Savannah OPINION BY ADMINISTRATIVE JUDGE YOUNG This appeal involves a contract between KiewitPhelps (KP) and the United States Army Corps of Engineers (USACE or government) for the design of the U.S. Strategic Command and Control Facility Headquarters (STRATCOM) Project at Offutt Air Force Base in Nebraska. During construction of the project, mold was discovered in installed fiberglass duct liner located within the project’s heating, ventilation, and air-conditioning (HVAC) system. KP alleges that the mold growth was the result of deficiencies in the design of USACE’s HVAC system for the project and seeks to recover for delays in the project and additional costs it incurred due to the mold growth. USACE asserts that the mold growth was caused by the failure of KP’s subcontractor to adequately protect the lined duct. A 9-day hearing was conducted and extensive post-hearing briefs were filed. We decide entitlement only. Because we conclude that the specification was defective, we sustain the appeal. APPELLANT’S MOTION TO STRIKE Pending before the Board is appellant’s motion to strike portions of the government’s post-hearing brief, arguing that the government offers facts not supported by the record. The government responded and appellant filed a reply in support of its motion. Appellant argues that certain government proposed findings of fact (GFF) have either been not admitted into evidence (GFF 18, 54-56, 58-60), constitute secondary or tertiary sources (GFF 132, 136), or rely on the opinion of a non-expert, Mr. Brian Benson (GFF 253-54). In formulating our decision below, we have examined in depth the extensive record in this appeal. We have not relied upon the GFF’s to which the appellant objects. Accordingly, appellant’s request as to these GFF’s is moot. As to Mr. Brian Benson’s testimony, we accepted Mr. Benson at the hearing as an expert certified industrial hygienist, an expert in chemistry and an expert in indoor air quality (tr. 8/224). We heard Mr. Benson’s qualifications, carefully considered the appellant’s objections and the government’s responses, and ruled from the bench applying the principles of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). Further, we accepted Mr. Benson’s testimony as a fact witness in areas where he was not an expert (tr. 9/104). Although we are not bound by the Federal Rules of Evidence (FED. R. EVID.), we use them as a guide (Board Rule 10 (c)). FED. R. EVID. 702, Testimony by Expert Witness provides: A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: (a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case. The question of whether to admit, and what extent to rely upon, expert testimony is an evidentiary determination left to the sound discretion of the Board. Lebolo-Watts Constructors 01 JV, LLC, ASBCA No. 59740 et al., 21-1 BCA ¶ 37,789 at 183,427. It is up to the Board in its sound discretion to determine what evidence is admissible and the weight to be given it. Laguna Construction Co. Inc., ASBCA No.