CBCA 5168

THIS OPINION WAS INITIALLY ISSUED UNDER PROTECTIVE ORDER AND IS BEING PUBLICLY RELEASED IN ITS ENTIRETY ON DECEMBER 9, 2019 GRANTED IN PART: November 13, 2019 CBCA 5168, 6298 AMEC FOSTER WHEELER ENVIRONMENT & INFRASTRUCTURE, INC., Appellant, v. DEPARTMENT OF THE INTERIOR, Respondent. Chad V. Theriot and William E. Underwood of Jones Walker LLP, Atlanta, GA, counsel for Appellant. Colleen M. Burnidge and Amy M. Siadak, Office of the Solicitor, Department of the Interior, Lakewood, CO, counsel for Respondent. Before Board Judges SOMERS (Chair), VERGILIO, and CHADWICK. CHADWICK, Board Judge. This construction case is before the Board for decision after a six-day hearing in May 2019. The contractor, known during the project as Amec Foster Wheeler Environment & Infrastructure, Inc. (Amec), performed repair and restoration work for the National Park Service (NPS) at the historic prison on Alcatraz Island in San Francisco Bay. Amec finished seventeen months late, incurring $511,000 in withheld liquidated damages. It now seeks approximately $15.7 million under a task order with a fixed price of about $4 million. Amec also disputes a government claim for about $150,000. CBCA 5168, 6298 2 We cannot trace responsibility to the Park Service for any of the costs or most of the time that Amec claims. Crucially, we see no basis to hold the agency liable for the difficulty that Amec’s original subcontractor had in meeting the project requirements, and no evidence that the agency caused Amec to terminate the subcontract for default, as Amec alleges. Once we exclude from recovery the costs and time attributable to Amec’s bad experience with its subcontractor, it becomes impracticable on this record to estimate what the project probably would have cost or how long it probably would have taken absent those problems. At the heart of the case is a unilateral modification that addressed a structural issue discovered during demolition. The dispute about the modification is not about liability as such. The agency admits responsibility for the change and acknowledges its significance. The dispute centers on the price. Although we find that the change caused some measurable delay, Amec does not prove that it incurred costs specifically to perform the modified work that exceeded what Amec was paid for that work in the modification price. The agency, for its part, does not persuade us that changes of the work resulted in overpayments to Amec. We award Amec $130,000 plus statutory interest and deny the government claim. Background Except as specifically noted, the facts summarized here are not genuinely disputed. We reserve most of our inferences and analysis for the discussion section. I. Preaward Events Events before the task order was awarded are ultimately irrelevant to our decision, but we start with them for context. The Park Service began generally planning for this Alcatraz Prison project in 1997, when it retained a civil engineering firm to assess the condition of the prison’s central cellhouse. The agency could not afford the repairs that the firm recommended at that time. In 2009, the Park Service tasked the same firm, using the same individual engineer (later the engineer of record), to revive the repair project by delivering schematic drawings, specifications, and a study of the expected costs. In the course of preparing those deliverables, the engineer recommended that the Park Service consider funding the work that became the subject of this case. Specifically, the engineer warned the agency in an April 2010 letter that the metal beams supporting the cellhouse in the structure known as the Citadel “ha[d] been slowly deteriorating for decades” and that the agency should initiate a project to repair or replace the beams, or should at least begin collecting data “to detect significant structural changes before critical loss of strength occurs.” To briefly orient the reader (Alcatraz maps and plans CBCA 5168, 6298 3 are on the Internet), the original Citadel was a barracks at the island’s highest elevation. The prison cellhouse was built in the early twentieth century on the Citadel’s foundation, which the Park Service still calls “the Citadel.” The cellhouse above the Citadel consists of four cellblocks (hallways), designated the A, B, C, and D blocks, in order from east to west. The B and C blocks are longer than the others.