CBCA 6750

THIS OPINION WAS INITIALLY ISSUED UNDER PROTECTIVE ORDER AND IS BEING PUBLICLY RELEASED IN REDACTED FORM ON JUNE 28, 2023 GRANTED IN PART: March 31, 2023 CBCA 6750 BALFOUR BEATTY CONSTRUCTION, LLC, Appellant, v. GENERAL SERVICES ADMINISTRATION, Respondent. Reginald M. Jones, Nicholas T. Solosky, and Diana Lyn Curtis McGraw of Fox Rothschild LLP, Washington, DC, counsel for Appellant. Justin S. Hawkins, Kelly Y. Burnell, and Jessica A. Gunzel, Office of General Counsel, General Services Administration, Washington, DC, counsel for Respondent. Before Board Judges SHERIDAN, KULLBERG, and O’ROURKE. KULLBERG, Board Judge. Appellant, Balfour Beatty Construction, LLC (Balfour), appeals the contracting officer’s (CO’s) final decision (COFD) that denied its claim in the amount of $13,350,899. Balfour’s claim consists of nineteen separate claims for increased costs related to its contract with the General Services Administration (GSA) for the construction and expansion of phase two of the central utilities plant (CUP2) for the Department of Homeland Security (DHS)  REDACTED VERSION CBCA 6750 2 headquarters at the St. Elizabeths West Campus (St. Elizabeths) in Washington, D.C.1 Through its nineteen claims, Balfour seeks to recover increased costs allegedly incurred because of compensable delay, errors in the solicitation bridging documents, differing site conditions, and changes to the contract. Balfour also seeks certain costs related to legal and consulting fees. The Board conducted a seven-day hearing, which commenced on July 12, 2021. The parties submitted post-hearing and reply briefs. Only entitlement is at issue in this appeal.2 For the reasons stated below, the appeal is granted in part. Background and Findings of Fact I. The Solicitation and Contract 1. On March 25, 2016, GSA issued solicitation number GS-11-P-16-MM-C-7001 (solicitation), “Design/Build for [CUP2] for the consolidation of [DHS] at St. Elizabeths.” Appeal File, Exhibit 2.13 at STE00000199.4 The first phase of the solicitation was a request 1 St. Elizabeths Hospital was established as a psychiatric hospital by the United States Government in 1852. Appeal File, Exhibit 2.14 at 910. The 300-acre St. Elizabeths campus includes Gothic Revival buildings, which were built between 1852 and 1899. Id. Sixty-two of the seventy buildings on the campus are national historic landmarks. Id. GSA took control of the property in 2004. Id. “St. Elizabeths” has been historically written with the omission of an apostrophe. Id., Exhibit 2.9 at 416 n1. 2 The Board’s order on further proceedings, dated March 4, 2020, stated that the Board would only determine entitlement in this appeal. In a subsequent order, dated March 25, 2020, the Board, at the parties’ request, revised its previous order to state that the Board would decide both entitlement and quantum. At the hearing, the parties agreed that the Board would determine only entitlement. Transcript, Vol. 1 at 48-49. 3 All exhibits are found in the appeal file, unless otherwise noted. The appeal file consists of numbered exhibits 1 through 623 (Government’s exhibits) and 2001 through 2341 (appellant’s exhibits). Exhibit 2342 is the parties’ joint statement of facts. Transcript, Vol. 1 at 5. Exhibit 2343 is a September 6, 2018, email from GSA to Balfour. Exhibit 2344 is the Government’s expert testimony “slide show” presentation at the hearing. Transcript, | Vol. 7 at 68. Exhibit 2345 is appellant’s presentation from counsel’s opening statement. 4 Subsequent page number citations in government exhibits will omit the letters “STE” and the zeros that precede the actual page number in the exhibit. Both government and appellant exhibits have page numbers that were imprinted on each page of the exhibits  REDACTED VERSION CBCA 6750 3 for qualifications (RFQ) for the selection of highly qualified offerors, and the second phase was a request for proposals (RFP) from a short list of highly qualified offerors. Id. at 204. The RFQ described the project as “design/build efforts from approximately 30% bridging documents.” Id. at 199.