CBCA 6490

GRANTED IN PART: July 29, 2022 CBCA 6490 FRENCH CONSTRUCTION LLC, Appellant, v. DEPARTMENT OF VETERANS AFFAIRS, Respondent. Mark E. Landers, Dayton OH, counsel for Appellant. Harold W. Askins, III, Office of General Counsel, Department of Veterans Affairs, Charleston, SC; and Donald C. Mobly, Office of General Counsel, Department of Veterans Affairs, Denver, CO, counsel for Respondent. Before Board Judges BEARDSLEY (Chair), VERGILIO, and SULLIVAN. SULLIVAN, Board Judge. French Construction LLC contracted with the Department of Veterans Affairs (VA) for construction on a VA medical campus. As the result of delays allegedly caused by VA, French Construction seeks $383,390. French Construction also seeks to recover $23,282 on six direct-cost claims. After a hearing in this matter, we find that French Construction failed to prove its delay claims but award a portion of the direct-cost claims in the amount of $11,483. CBCA 6490 2 Findings of Fact I. Delay Claims A. Contract Terms In August 2014, VA awarded French Construction a fixed-price contract for the construction of a two-story corridor to connect two buildings at the Veterans Hospital in Chillicothe, Ohio. Complaint ¶ 5. The contract required the completion of performance within 365 days after receiving the notice to proceed. Appeal File, Exhibit 16 at 1.1 French Construction received the notice to proceed on September 15, 2014, but did not complete performance until January 13, 2017. Complaint ¶¶ 6, 11. The contract incorporated by reference the Federal Acquisition Regulation (FAR) Brand Name or Equal clause, 48 CFR 52.211-6 (2013) (FAR 52.211-6), and Changes clause, FAR 52.243-4. Exhibit 16 at 33, 35. B. Alleged Periods of Delay French Construction claims a total of 419 days of Government-caused delay, which its expert, Mr. Allan Ballew, allocated across five different time periods between activities on the critical path. Complaint ¶ 11; Exhibit 44 at 14-15. Mr. Ballew determined the number of days of delay by comparing the as-planned schedule approved by VA to the as-built schedule that he prepared for the claim. See Exhibit 771 at 21, 29.2 Mr. Ballew only provided two “rough” updates to the planned schedule during contract performance. Transcript, Vol. I at 243.3 It is not clear whether Mr. Ballew used either of these updates in performing his analysis or preparing his expert report. 1 All exhibits are in the appeal file, unless otherwise noted. 2 Mr. Ballew served as French Construction’s project manager. He prepared both the as-planned and as-built schedules that he used in his expert analysis. Transcript, Vol. I at 27, 164. 3 Both sides elicited extensive testimony regarding whether French Construction was required to prepare schedule updates during performance. See, e.g., Transcript, Vol. I at 166-67. Because we find that French Construction did not prepare updates, we need not decide whether it was required to do so. CBCA 6490 3 1. Notice to Proceed to Demolition of Existing Structure Mr. Ballew identified the first period of delay as between the issuance of the notice to proceed and the completion of the demolition of the existing structure. Exhibit 771 at 33-34. French Construction’s as-planned schedule forecasted the demolition of the existing corridor to be complete by October 10, 2014. Exhibit 69. According to the as-built schedule, French Construction began demolition on February 23, 2015, and completed it on February 27, 2015, 149 days later than it had planned. Exhibit 689. Mr. Ballew testified that, before French Construction could demolish the existing corridor, it was required temporarily to relocate cables and wiring related to elevator function, generator function, and communication. Transcript, Vol. I at 49-50; see also Exhibit 771 at 32.4 French Construction was unable to proceed when it discovered cables that were not indicated on the drawings prepared by the project architect. Transcript, Vol. I at 50:6 to :13. It waited until after it received updated drawings and a notice to proceed with the changed work on February 6, 2015, Exhibit 260, and VA’s approval of a necessary power outage, which was provided on February 10, 2015. Exhibit 256.