Board of Contract Appeals
                    General Services Administration
                         Washington, D.C. 20405
 
 
 
              ___________________________________________
 
                      GSBCA 14437 GRANTED IN PART;
                 GSBCA 14603 GRANTED: October 19, 2000
              ___________________________________________
 
 
                           GSBCA 14437, 14603
 
 
                  YOUNG ENTERPRISES OF GEORGIA, INC.,
 
                                                Appellant,
 
                                   v.
 
                    GENERAL SERVICES ADMINISTRATION,
 
                                                Respondent.
 
        Thomas E.  Abernathy IV of  Smith, Currie &  Hancock L.L.P.,
   Atlanta, GA, counsel for Appellant.
 
        Sharon  J. Chen, Office of General Counsel, General Services
   Administration, Washington, DC, counsel for Respondent.
 
   Before Board Judges DANIELS (Chairman), WILLIAMS, and DeGRAFF.
 
   WILLIAMS, Board Judge.
 
        Appellant, Young Enterprises of Georgia, Inc. (Young), seeks
   home  office and  field office  overhead  costs for  delays on  a
   renovation  project on  which  unforeseen asbestos  and  numerous
   tenant-requested changes were encountered.   The General Services
   Administration  (GSA) granted Young 118 calendar days of extended
   overhead costs.  At issue in GSBCA 14437 is whether Young and one
   of  its   subcontractors  are  entitled  to  additional  extended
   overhead  costs.   GSA contends  that Young  failed to  prove any
   increased  costs  of   performance  were  caused  by any  act  or
   omission of GSA; that additional costs incurred in performing the
   work  were  fully embraced  within  the change  orders;  and that
   recovery is barred under the doctrine of accord and satisfaction.
   Only  entitlement is  to  be  decided  at this  time.    Also  in
   GSBCA 14437, appellant  seeks interest  under the Prompt  Payment
   Act because respondent delayed in paying an invoice.
 
        At  issue in GSBCA 14603  is $11,100 in  liquidated damages,
   which GSA assessed for  thirty-seven calendar days of delay  from
   the extended contract  completion date until GSA  determined that
   the project was substantially complete. 
 
 
        We conclude that appellant has not proved entitlement to any
   additional days of extended overhead costs, but that appellant is
   entitled to some of  the interest it seeks.   Therefore, we grant
   GSBCA 14437 in  part.  We  also conclude that respondent  has not
   proved  entitlement to  liquidated damages,  and  therefore grant
   GSBCA 14603.
 
                            Findings of Fact
 
        On March 29,  1993, GSA  issued an invitation  for bids  for
   renovations  to  the United States  Bankruptcy Court,  a historic
   building   in   Columbia,   South Carolina.      Stipulation I.1,
   Appellant's Posthearing Brief, Attachment A; Transcript at 6. 
 
   The Contract
 
        On    May 12,    1993,   GSA    awarded    contract   number
   GS-04P-93-EXC-0021 to Young  for the renovations, including  some
   asbestos abatement and sprinkler work.  Stipulation I.2.
 
        Contract specification  02085-Asbestos Abatement  Procedures
   states, in part:
 
        A.   General
 
        This  section  includes  all work  necessary  to reduce
        airborne concentrations  of asbestos  to the  specified
        level  and  maintain  the  specified  asbestos  control
        limits during  the  life  of the  contract.    It  also
        includes   containment,   removal,  and   disposal   of
        asbestos-containing material.
 
        1.   The following asbestos-containing materials are to
        be removed.  Refer to  drawings in the appendix of this
        specification.  The contractor  will be responsible for
        the  removal of all Thermal System Insulation, pipe run
        insulation, pipe  joints and  elbow mud,  from all  hot
        water  supply, chilled water supply and return lines as
        described  for  the  areas listed  below.    Removal of
        miscellaneous  vinyl   asbestos  floor  tile   is  also
        included in the scope of removal.
 
   There follows  a list  of the  locations in  the third floor  and
   basement, along with the type and quantity of asbestos containing
   materials to be removed.   Appeal File, Exhibit 1 at 02085-1   to
   -3.
 
        The contract drawings contain a note stating:
 
        NOTE:     IF  AT  ANY  TIME  DURING  THE  DEMOLITION OR
                  CONSTRUCTION  OF  THIS  FACILITY,  PREVIOUSLY
 
                  UNFORESEEN     ASBESTOS    CONDITIONS     ARE
                  ENCOUNTERED,    CONSTRUCTION    SHALL    STOP
                  IMMEDIATELY, & THE  CONTRACTING OFFICER SHALL
                  BE NOTIFIED.
 
   Appellant's Exhibit 33.
 
        The  contract  includes   the  Liquidated  Damages   Clause,
   Construction,   FAR 52.212-5,  which   states   that  "[i]f   the
   Contractor fails to  complete the work within  the time specified
   in the  contract, or any  extension, the Contractor shall  pay to
   the Government as liquidated damages, the sum of $300.00 for each
   day of delay."   Appeal File, Exhibit 1 at 0800-11.  The contract
   also includes the Prompt Payment Clause, GSAR 552.232-71.  Id. at
   0800-14 to 0800-15.
 
   Young's Subcontracts
 
        Young   entered  into   a  subcontract   with  Environmental
   Management  Services, Inc.  (EMS)  to  perform  the  removal  and
   disposal  of  asbestos  and re-insulation  of  abated  piping for
   $29,669.15.  Respondent's Exhibit 41.   Young also  subcontracted
   out the following  work:  installation of metal studs, mechanical
   rough-in, plumbing rough-in, electrical rough-in, fire protection
   rough-in,  and part of  the following items:  drywall and plaster
   repair, acoustical ceiling  grid, architectural woodwork,  toilet
   partitions, painting  and wall  covering,  doors, door  hardware,
   carpet,  toilet,  bath   and  basin  accessories,  and   cleanup.
   Transcript at 186-88.   Fidelity Construction (Fidelity)  was the
   subcontractor  for the  metal  studs,  sheet  rock  and  drywall,
   painting, plaster,  ceiling grid, and  ceiling tile.  Id.  at 68.
   Collins and Wright  also performed installation of metal studs on
   this job.  Id. at 198.  Triad Mechanical Contractors (Triad)  did
   the mechanical work  and Derrick Plumbing did the  plumbing.  Id.
   at 417, 459.
 
 
   The Personnel
 
        Young  assigned  one  full-time  employee  to  this  job,  a
   superintendent, and otherwise  used temporary labor.   Transcript
   at  188.   Appellant's  president,  Don Wilbanks,  was  the  only
   employee    of   appellant   called   as   a   witness   at   the
   hearing.[foot #] 1       Mr. Wilbanks    visited   the    project
   periodically less  than once a month and less than ten times over
   the  course of  the project,  but he  was in  daily  contact with
   Young's superintendent.  Transcript at 190, 242-43.
 
        The contracting  officer's technical  representative (COTR),
   John  Bradley, a  licensed  architect  and  formerly  a  licensed
                                                                    
                   ----------- FOOTNOTE BEGINS ---------
 
        [foot #] 1 No   employees   of   appellant's  subcontractors
   testified at the hearing.
 
                   ----------- FOOTNOTE ENDS -----------
 
 
   general contractor, was  the GSA contracting officer's  "eyes and
   ears" on the project,  and had the authority to approve or reject
   construction  schedules.      Transcript   at   269-70,   414-15;
   Respondent's  Supplemental Appeal  File,  Exhibit G2.   The  COTR
   visited the site  on average twice  a month, and  worked on  this
   project for its entire duration.  Transcript at 415-16, 426.
 
 
        Gilbert and Associates  (Gilbert), the architects,  prepared
   the drawings and specifications  for the project.  Transcript  at
   90; Appellant's Exhibit 33. 
 
   The Original Schedule
 
        On June 10,  1993, GSA  issued a  notice to proceed  stating
   that all work was to be completed within  200 calendar days after
   receipt  of the  notice.   Stipulation I.3.   Young  received the
   notice to proceed  on June 14, 1993, establishing  the completion
   date as December 31, 1993.  Id. I.4, I.5.
 
        Young's president  submitted a  bar-chart type  construction
   schedule  for  the  project,  and  that  schedule  was  approved.
   Appellant's Exhibit 20; Transcript  at 33-34, 242.   The contract
   did  not require  a critical  path method  (CPM) schedule;  a bar
   chart  was acceptable to GSA.  Appellant's Exhibit 20; Transcript
   at  498-99.    No  CPM  schedule was  ever  done  for  this  job.
   Transcript at 25, 242, 498.
 
        The  approved construction  schedule  showed the  renovation
   being performed  in four areas:   the third floor,  the basement,
   the  fire pump  room,  and the  exterior  and miscellaneous  work
   areas.   Work was to be done  in all areas from  mid-June to late
   December,  except that efforts in the  fire pump room were not to
   begin  until  mid-July.     Appellant's  Exhibit 20.    Appellant
   determined  that  the  third  floor work  was  the  most critical
   because  a new  judge had  been  assigned to  third floor  space.
   Transcript at  31.  Young  was to totally rehabilitate  the third
   floor,  including  gutting  rooms and  taking  out  most interior
   walls.  The second most critical area was the basement renovation
   work because this space, as well as the third floor, utilized all
   of the subcontract  trades.  Id.  The approved bar chart schedule
   indicated that asbestos  abatement and removal in all areas would
   be completed before  the end of July  1993 (third floor, July  7;
   fire  pump room, July  19; and  basement, July 27).   Appellant's
   Exhibit 20.
 
        After asbestos work had been  completed, the metal studs and
   walls were to  go up.   Young planned  to start  the work of  the
   mechanical, plumbing,  electrical,  and  fire  protection  trades
   thereafter; each  of these trades  needed to have the  metal stud
   walls up  before it could  begin.  Transcript at  38; Appellant's
   Exhibit 20.  After  the rough-in items were  two-thirds finished,
   Young planned to start the drywall installation  and plaster wall
   repair.  Transcript at 39; Appellant's Exhibit 20.  The next item
   was the  acoustical ceiling grid.   Transcript at 40.   Following
   all  of  the  finish  trades,  the most  critical  item  was  the
   architectural woodwork, which involved  ornate wainscoting, chair
   rail, and  other wood  trim.   Id. at  41-43.   After the  finish
   trades  completed the  final painting  and  wall covering,  Young
   would complete the doors, hardware, glass and glazing, toilet and
   bathroom accessories, and  then the heating, ventilating  and air
   conditioning  (HVAC)  and  electrical  trim,  ceiling  tile,  and
   carpet.  Id. at 43-44.
 
   Additional Unforeseen Asbestos
 
 
        Because the  specifications showed  only a  small amount  of
   asbestos  on the third floor in one  room, Young allocated only a
   couple of days in  early July to do that work.  Transcript at 36,
   56; Appellant's Exhibit 20.   Young contemplated "glove  and bag"
   type  asbestos  removal,  which did  not  necessitate  setting up
   containment areas or  chipping up the floor tile  and bagging it.
   Transcript at 35.  Because the specifications and plans indicated
   more  asbestos  in the  basement,  Young  intended to  begin  its
   demolition there and  then move up  to the  third floor area  for
   abatement.  Id. at 56.  
 
        However,  as soon  as Young  started the  demolition  in the
   basement,  it encountered unforeseen asbestos.  Transcript at 56;
   see Respondent's  Exhibit 4, Appellant's   Daily Progress  Report
   12;   Appellant's   Exhibit 36.[foot #] 2        As   a   result,
   GSA  directed appellant  to test  for additional asbestos  on the
   third floor;  it did  so on July  7, and  the test  was positive.
   Transcript at 58; see Appellant's Exhibit 24.  
 
        In  July 1993 Young discovered asbestos above the ceiling on
   both  the second  and third  floors, and  asbestos  insulation on
   ducts and  pipes in the  third and fourth floor  mechanical rooms
   and fifth  floor  attic access.   Appellant's  Exhibit 36.   This
   asbestos  was  not  shown  on  the  specifications  or  drawings.
   Transcript at 455.  Young was unable to work in those areas until
   the asbestos was  abated completely, and all work  in those areas
   was  stopped  until  it  was  abated.    Appellant's  Exhibit 36;
   Transcript at 69, 71.[foot #] 3  
 
                                                                    
                   ----------- FOOTNOTE BEGINS ---------
 
        [foot #] 2 Appellant's  Exhibit 36 is  a  summary of  delays
   prepared by the COTR in a memorandum dated June 10, 1994, tracing
   the project from June 1993  until that date.  Transcript  at 513;
   Appellant's Exhibit 36.  The COTR prepared this document over the
   course of a few days based on  his recollection and his review of
   the  change orders, the pay requests, correspondence, and similar
   documents.  Transcript at 513.
 
        [foot #] 3 According to  the COTR's   summary  of delays  in
   July  1993,  "mechanical  demolition and  most  other  work [was]
   stopped until  these [asbestos] conditions  [could] be remedied."
   Appellant's Exhibit 36.
 
                   ----------- FOOTNOTE ENDS -----------
 
 
 
        However, Young was  never formally directed to  stop work on
   this project.   Young's president testified:  "Stop  work was not
   an option  given to  us when  we met with  both the  GSA and  the
   courts. . . .  [W]e were  directed to go ahead and do work  where
   we could until  these issues were  resolved and that  is what  we
   did."  Transcript at 554.
 
        In  July  1993   additional  asbestos,  not  shown   on  the
   specifications or  drawings, was  found on  the  pipes below  the
   third  floor  restrooms  and  in   a  pipe  chase.    Appellant's
   Exhibit 36.
 
        By letter dated  July 16, 1993, Young notified GSA  that the
   project was about to "come to a complete halt due to many factors
   that should have been addressed prior to our  start of work"; the
   letter identified numerous  areas with unforeseen asbestos  and a
   forthcoming  change   in  the   basement  layout.     Appellant's
   Exhibit 25.
 
        On July 8, 1993, GSA requested that Young provide a proposal
   for this changed  work, and by letter dated  July 20, 1993, Young
   proposed  to perform the  additional abatement work  on the third
   and  fourth floors  for $26,107.95,  which  included 10%  profit.
   Appellant's  Exhibit 2.  Although  Young sought a  time extension
   and  delay costs, Young's  president and the  contracting officer
   agreed that all  extended overhead costs would be  held until the
   end of  the job and  settled later.   Transcript at 58,  67, 317,
   508; Respondent's  Exhibit 1 at 3;  Appellant's Exhibit 38  at 2.
   Young's  proposal stated:   "We  reserve the  right to  claim for
   delays due  to this  change and  will submit  after this  work is
   complete."   Appellant's Exhibit 2.  On July 21, 1993, GSA issued
   modification  PC-02, which authorized  Young to proceed  with the
   work set forth in this  proposal at a cost not-to-exceed $26,108.
   Appellant's Exhibit 3.  By modification PC-03, modification PC-02
   was  revised and  the price  was  decreased by  $949 to  $25,159.
   Appellant's Exhibit 3.  This modification stated:
 
        The  equitable  adjustment  in  this modification  also
        includes all  direct, indirect,  and cumulative  impact
        and delay  costs, if  any, incurred  in performing  the
        changed  (and unchanged) contract work affected by this
        modification.
 
   Id.  PC-03  was signed  by Young  on August 8, 1993,  and by  the
   Government on August 23,  1993.  Id.    In August 1993  the first
   asbestos  abatement change order work was performed.  Appellant's
   Exhibit 36.  
 
        In September 1993 asbestos was discovered in the attic above
   the courtroom on the third  floor, where the sprinkler pipes were
   to be  run.  Appellant's  Exhibit 36.  In November  1993 asbestos
   was discovered  in the  mechanical room in  the basement,  and in
   December 1993 some was found at the  fresh air duct to the fourth
   floor mechanical  room and at  the exterior duct at  the basement
   level.  Id.  
 
 
        In  January 1994 asbestos abatement of the attic space above
   the third floor courtroom as well as the basement mechanical room
   and fifth  floor mechanical  closet was  performed.   Appellant's
   Exhibit 36.   In March  1994 the asbestos  abatement of  the pipe
   chase was performed.   Id.  That same month,  Young was presented
   with the asbestos survey that had been done in December 1992; the
   survey showed  the presence of  asbestos in a number  of basement
   areas, the chiller room, fan  room, fourth floor side attic, room
   503, and  pipe chase on the  fifth floor.   Transcript at 542-43;
   see id. at 1133-14; Appellant's  Exhibits 45, 45A.  None of these
   areas was designated  in the contract specifications  or drawings
   as  having  asbestos.    Id.  at  113-15,  536-43;  Appeal  File,
   Exhibit 1.  The Prerenovation Report,  which was used to  prepare
   the specifications did not include samplings of areas which  were
   later  determined  to  have  asbestos.  Appellant's   Exhibit 49;
   Deposition  of  Gerald  Hust (March 16,  1999)  at  39-40, 67-70;
   Deposition of Merrill Delange (March 16, 1999)  at 26, 69, 77-79;
   Affidavit of Don Wilbanks (April 22, 1999)   3.
 
        Young's daily field progress reports indicate  that asbestos
   abatement  was performed  at times  between July  1993 and  March
   1994,  but  do  not  indicate  that  any asbestos  abatement  was
   performed after  March 1994.   Respondent's  Exhibit 4; see  also
   Appellant's Exhibits 21,  36.
 
        The following  is a  summary of  the contract  modifications
   issued for asbestos abatement work:
 
   Identification Date Signed                    Renovation
           Amount
          No.             by GSA              Work Involved
 
   PC-02/PC-03    07/21 &        Asbestos abatement on pipe
   $26,108
                  08/23/93       insulation in basement
   (PC-02)
                                 elevator machine room, duct
   $25,159
                                 insulation on third and
   (PC-03)
                                 fourth floors and plumbing
                                 pipe insulation
 
   PC-04          12/07/93       Asbestos abatement in rooms
   $11,355
                                 232, 503, removal of pipe
                                 insulation
   PC-05          01/04/94       Asbestos abatement in attic   N T E
   [not to
 
                                 above room 332           exceed]
 
   $50,403
 
   PC-06          01/21/94       Asbestos abatement of
   $35,321
                                 insulation
 
   PC-08          05/16/94       Asbestos abatement of pipe
   $30,061
                                 chase through all five floors
 
   Appellant's Exhibits 2-6, 8, 34.
 
        In its change  order proposals, Young included  overhead and
   profit for  its own work  or a commission on  its subcontractor's
   work.  Appellant's  Exhibits 3-5, 7-9; see Transcript  at 196-99.
   Modifications PC-04 and PC-06 contained the identical language as
   PC-03  to  the  effect  that  all  delay  costs   were  included.
   Appellant's Exhibits 4, 6.   In modification PC-08,  a unilateral
   change order,  the  Government omitted  the  requested  overhead.
   Appellant's Exhibit 8.
 
        As a result of the additional asbestos which was  discovered
   during  the renovation,  but not  noted in the  contract, Young's
   subcontract  with  Environmental  Management Services,  Inc.  was
   increased  by $143,520.90  --  from  $29,669.15  to  $173,190.05.
   Respondent's Exhibits 41-46.
 
   The Reconfiguration of the Basement
 
        At the  pre-construction  meeting  in  mid-June,  the  court
   requested a major  change in the  configuration of the  basement,
   which  included   the  deletion  of  a  fitness  center  and  the
   construction  of   offices   and  a   computer  operation   room.
   Transcript at 457; Appellant's Exhibit 36.
 
        In July 1993, GSA decided not to use the original architect,
   Gilbert,  for this work  because the agency  considered Gilbert's
   price too high and the  anticipated time for completion too long.
   Transcript  at   89-90,  458,  505-06;   Appellant's  Exhibit 36.
   Instead, the COTR, John  Bradley, drew up  the plans for the  new
   basement configuration.   Appellant's  Exhibit 36; Transcript  at
   458.  GSA contracted with Young for the mechanical redesign work,
   and  Triad,  Young's  mechanical subcontractor,  did  that  work.
   Transcript at 459.  The  revised basement floor plan was approved
   by the courts on August 4, 1993,  and the drawings were submitted
   to Young  in change estimate  three (CE-3) on September  8, 1993.
   Appellant's  Daily Progress  Report  36, Respondent's  Exhibit 4;
   Respondent's  Exhibit 18;   Transcript  at   482-83;  Appellant's
   Exhibit 36.
 
        Under the  reconfiguration, approximately two-thirds  of the
   basement  work  was  new work.    Transcript  at 456.    The COTR
   admitted  that the  plans he  drafted for  the basement  were "an
   elaborate  sketch."   Id. at  459.   He  stated:   "I  showed the
   electrical  receptacles and phone outlets  and that kind of stuff
   on the plan but  as far as any wiring diagrams and circuits . . .
   that was basically left to  the electrical engineer to work out."
   Id. at 458-59.   The redesign was  done by Triad on  a trial-and-
   error basis to make the duct work fit.  Id. at 85. 
 
        In September  1993 the HVAC  subcontractor's submittals  had
   been rejected by Gilbert because  parts of air handling units did
   not  comply with  the specification;  the  subcontractor and  the
   architect went  back and  forth at least  three times  before the
   submittals  were   approved.    Transcript  at  464;  Appellant's
   Exhibit 36.   In October  1993 the  HVAC subcontractor  was still
   redesigning duct work  in the basement.   Appellant's Exhibit 36.
   In November 1993, while engineering the basement air conditioning
   change,  the  HVAC  subcontractor   learned  that  the  specified
   variable air volume (VAV) boxes were not the correct ones for the
   proposed new  system.  Id.   GSA approved changing  the VAV boxes
   and requested the  HVAC subcontractor to submit a  cost proposal.
   Id.  The electrical contractor was not involved in HVAC redesign,
   and there were  subsequent electrical problems when  the new VAVs
   were installed.  Transcript at 88.
 
        In December 1993 the  ceiling layout in the basement  needed
   to  be  reworked  due  to  the larger  VAV  boxes.    Appellant's
   Exhibit 36.   Triad  was required  to redesign  the ducts  into a
   different configuration but still deliver the same volume  of air
   to the rooms.  Transcript at 504-05.
 
 
        Although Young's president  testified that the  problem with
   the design in  the basement extended the job  until October 1994,
   an  extension  of  this duration  is  not  corroborated  by other
   evidence of record.  Compare Transcript at 86-89 with Appellant's
   Exhibits 18, 36; Transcript at  500; Respondent's Exhibits 4, 13.
   The COTR's summary of delays  indicates that the ceiling plans in
   the basement were  revised in July 1993 and  reworked in December
   1993.  Appellant's Exhibit 36.  The  design work for the HVAC was
   incorporated  into change estimate twenty (CE-20), and both Young
   and  Fidelity  requested  a  thirty-day  delay  for  CE-20  work.
   Transcript at 500;  Appellant's Exhibits 10,  18.  Young's  daily
   progress reports indicate that changes to the basement floor plan
   or HVAC design were  delaying the job on  some days between  July
   and   December  1993  --  July 1,  9,  14-16,   20,  27,  and 29;
   September 9 and 30; October 8, 13, 26, and 29; November 4 and 15;
   and  December 13 and  22.  Appellant's Daily Progress Reports 13,
   18, 21-23, 25, 30,  32, 60, 74,  82, 84, 93,  96, 100, 106,  124,
   131;   Respondent's   Exhibit 4.[foot #] 4       However,   other
   work was performed on those  dates with between four and thirteen
   employees working on site.  Id.  In 1994, no delays were noted in
   Young's daily job progress reports referencing the basement floor
   plan   or  HVAC   changes.[foot #] 5     Id.;  see   Respondent's
   Exhibit 13.    In  its daily  reports  Fidelity  indicated delays
   relating to mechanical work in the basement on August 21, 25, 31,
 
                                                                    
                   ----------- FOOTNOTE BEGINS ---------
 
        [foot #] 4 On June 24,  Triad's demolition  in the  basement
   was  noted as a  delay.   On July 1, 8,  and 9, the  new basement
   floor plan  was noted  as a  delay or  as a  problem that  needed
   resolution.   On July 14, 15, 16,  27, and 29, delays  were noted
   for  the basement  floor plans  or mechanical  plan changes.   On
   September 3, mechanical engineering for the basement was noted as
   a delay.   On September 9, 27, and 30,  delays were noted because
   of HVAC duct work changes.  On October 8, 12, 13, 19, 26, and 29,
   delays were  noted for HVAC  submittals and duct work  design and
   third  floor courtroom  changes.    On  October 28, there  was an
   entry in Young's daily progress reports regarding relocating duct
   work to columns.  As of November 1  and 4, the HVAC design in the
   basement was still  causing delays.  On November 12,  a delay was
   noted  regarding the progress of change order proposals Young had
   submitted and  resubmitted to  the COTR.   On November 15,  there
   were  delays  due  to HVAC.    As  of  December 13  and 14,  HVAC
   approvals were still causing delays.  The radiator boxes and HVAC
   in the basement were noted as delays on December 22.  Appellant's
   Daily Progress  Reports 8, 13, 17, 18, 21-22, 23, 30, 32, 57, 71,
   74, 82-84, 88,  93, 95-97, 100, 106, 124,  125, 131, Respondent's
   Exhibit 4.
 
        [foot #] 5  Duct work in the basement was also proceeding in
   January and February 1994;  although the daily reports  for April
   and May also indicated some  duct work occurring in the basement,
   there was  no indication  that this  was a  problem or  causing a
   delay at  that time.  Appellant's Daily  Progress Reports 145-49,
   162-65, 199-239, Respondent's Exhibit 4.
 
                   ----------- FOOTNOTE ENDS -----------
 
 
   and     December 14,     15,      and     22,     1993.[foot #] 6
   Fidelity's Daily Reports 57, 61, 64, 112, 113, 118.
 
   Changes  Due  to  Discrepancies Between  the  Drawings  and Field
   Conditions
 
 
        In June 1993 discrepancies between the contract drawings and
   the field conditions  began to surface.   Appellant's Exhibit 36.
   In  particular, the  drawings did  not  show existing  radiators,
   piping, and boxing, and they contained erroneous ceiling heights.
   Id.; Transcript at 453-54.  Specifically, the drawings called for
   the ceiling height to be  seven feet, six inches, and  the courts
   wanted  an eight-foot ceiling  in the basement  area (the clerk's
   office),  but with the  duct work Young could achieve seven-foot,
   four-inch ceilings at best.    Transcript at 502-03; Respondent's
   Exhibit 18.   Young  was asked  by  the courts  to obtain  higher
   ceilings,  and  it  did  so,   at  least  in  the  center  areas.
   Transcript at 454.  
 
        In August  1993 conflicts  arose with  regard to  electrical
   locations in the basement; because the radiators and  boxing were
   not shown on the plans, changes in electrical locations had to be
   made.  Appellant's Exhibit 36.
 
        In September 1993 the COTR  noted that the file and bookcase
   details on the contract documents "[did] not work."   Appellant's
   Exhibit 36.   This same month  the court requested deletion  of a
   jury box and additional spectator  seating in the new third floor
   courtroom.  Id.  These revisions were submitted to the contractor
   for pricing in September.  Id.   In October 1993 GSA requested  a
   cost  proposal  from Young  to  eliminate  the  radiators in  the
   basement and increase the heating capacity of the new air handler
   unit.   Id.   In November  1993 GSA  approved a  change order  to
   eliminate these  radiators and make the heating changes.  Id.  In
                                                                    
                   ----------- FOOTNOTE BEGINS ---------
 
        [foot #] 6 On  August 21,  1993, Fidelity's  daily  progress
   report  stated:   "Changing everything  around  in basement";  on
   August 22,  "nobody  knows  anything about  what  is  changing or
   when";  on August 25, "Basement  to a halt,  no changes approved,
   painting fifth floor  interior in areas which have mechanical and
   sprinklers and doing  finish work which should be  done last, not
   first."   Fidelity's  Daily Reports 57-58  61.   On  December 14,
   Fidelity's report  stated:   "Electrical  mechanical changes  and
   work not  done by them  that hold us  up and other  trades taking
   apart  what we have already done and  [Young] keeps wanting us to
   redo."  Fidelity's Daily Report 112.  On March 2, 1994, the entry
   in  Fidelity's  daily   progress  report  stated:     "Talked  to
   mechanical man working  in Basement.  Still installing  duct work
   in  basement and  they said  ceilings would be  a problem  and in
   their  way."      Fidelity's  Daily   Report  167,   Respondent's
   Exhibit 13.  Fidelity's April 5, 1994, entry noted "Everything at
   standstill."      Fidelity's  Daily   Report   191,  Respondent's
   Exhibit 13.
 
                   ----------- FOOTNOTE ENDS -----------
 
 
   December 1993 the existing sewer  and water lines in the basement
   needed  to  be   relocated  due  to  a  conflict   with  the  air
   conditioning duct work.  Id.
 
 
        Gilbert's drawings originally  showed a chiller on  the roof
   area   off  the  fourth  floor  outside  the  courtroom  windows.
   Transcript at 468; Appellant's Exhibit 36.   Due to the  tenant's
   concern  with  noise, in  December  1993 GSA  requested  that the
   chillers be relocated on the ground level.  Id. 
 
        In  the original drawings a vertical, exposed sprinkler pipe
   was to  go in  the  corner of  an  ornamental staircase,  but  in
   January 1994 GSA  and the courts expressed  their dissatisfaction
   with the amount  of exposed sprinkler pipe that  was installed in
   the ornamental stairwell.  Appellant's Exhibit 36.  In March 1994
   GSA and  the  courts reviewed  their  options for  relocating  or
   concealing the exposed sprinkler  pipe.  Id.  Because  it was not
   possible   to  relocate  this   pipe,  Young  boxed   around  it.
   Transcript at 470-71.   In addition, some  exposed sprinkler pipe
   on the fourth floor stairwell was relocated.  Id. at 471-72.
 
   Delays Caused by the Mechanical Subcontractor, Triad
 
        Young's  mechanical  subcontractor  did   not  man  the  job
   properly  or in  timely fashion,  and did  not show  up for  work
   several times.  Transcript at 216-27, 445, 451.  This caused some
   delays in the  design work in  the basement, and  also delays  in
   coordination  of that work,  which resulted in  additional change
   orders.  Transcript at 445.  According to Young's daily report of
   June 24,   1993,  Triad  delayed   demolition  in  the  basement.
   Appellant's Daily Progress Report 8, Respondent's Exhibit 4.
 
        By  letter dated  April 19,  1994,  Young's project  manager
   complained  to  Triad  that  it had  not  submitted  change order
   pricing breakdowns, stating:
 
        I  have  made  every  effort   to  stress  to  you  the
        importance  of getting  all  the  change order  pricing
        breakdowns to  the owners so  that we may all  get paid
        for them.
 
        You don't seem to be  concerned with the fact that some
        of  this work  is  several  weeks old  and  we are  now
        nearing the final  completion of this project  with the
        paperwork still  outstanding solely  due to  your being
        non-responsive.
 
   Respondent's Exhibit 6 at 1.
 
        The  COTR  prepared   an  undated,  handwritten   memorandum
   entitled "Time Extensions and Liquidated Damages" relating to his
   findings of fact for modification  PC-18.  Transcript at  447-48;
   see id. at 511-12; Respondent's Exhibit 104.  In this memorandum,
   the COTR characterized  Triad as "the subcontractor  which caused
   the most delays"  and stated that its work  "affected and delayed
   many other trades."  Respondent's Exhibit 104.
 
   The Out-of-Sequence Work
 
 
        Young did  not prepare revised  bar chart or work  item list
   schedules  when  delays  were encountered.    Transcript  at 186.
   Young met with its subcontractors and  advised them on a daily or
   weekly  basis  where they  were  to work  when they  were  out of
   sequence.  Id.
 
        The electrical  subcontractor did  its rough-in  work before
   the  plumbing  subcontractor  and  mechanical  subcontractor  did
   theirs.   Transcript  at 448,  553.   The COTR  testified:   "The
   problem with that is that he ran his conduit where it was easiest
   to run  it and then  it was in  the way .  . . of  the mechanical
   subcontractor when he  came to install the duct  work which meant
   in most  cases the  electrician had  to come  back  and move  the
   conduit and reroute it and in at least one case we [had to] . . .
   modify some duct work."  Id.  
 
        In  order to keep  working, Young installed  the metal studs
   and drywall on  one side of the  wall and even painted,  but left
   the other side of  the wall open, so the electrical conduit could
   be installed.  Transcript at 79.  
 
        Young   painted some areas  before the work by  other trades
   was  done there.   Transcript  at 450.   In its  August 25, 1993,
   daily progress  report, Fidelity  noted:   "Painting on  interior
   will be  ruined at end  of job . .  . .   Basement to a  halt, no
   changes approved, painting 5th floor interior in areas which have
   mechanical & sprinklers & doing  finish work which should be done
   .  . . last  not first."   Appellant's Daily Progress  Report 61,
   Respondent's  Exhibit 13.  Young had to repaint approximately 30%
   of the basement.  Transcript at 89.
 
   The Problems with the Change Order Process
 
        There were nineteen modifications covering twenty-two change
   order requests on this job.  Appellant's Exhibits 1-19, 34. 
 
        Delays in executing  change orders emanated from  both Young
   and GSA.  Young's president  testified that Young could not price
   the  change  order  work  because  GSA  had  not  provided enough
   information, and it was receiving  vague requests from the COTR  
   "since [the architect] was out of the loop  . . . and [Young] got
   no input  from engineers."  Transcript  at 97.  According  to the
   COTR,  however, Young's proposals for contract modifications were
   often  inadequate because Young  provided only lump  sums without
   cost  breakdowns, and  the  COTR  needed  to  request  additional
   information  to evaluate  the proposals.    Id. at  463-64.   For
   example, Young's submittals for certain of the air handling units
   were rejected  several times  for lack of  detail, and  Young was
   slow in its  resubmissions.  Id. at 464-65.  As of February 1994,
   the COTR  was still  negotiating with  Young and  requesting cost
   breakdowns  on non-asbestos change  order proposals.  Appellant's
   Exhibit 36.   As  of March  1994, the  COTR had  received revised
   proposals  on other  miscellaneous change  order  items, but  was
   still  having  problems  with  some  items  or  required  further
   breakdowns.  Id.
 
 
        Young's daily progress reports indicate delays due to change
   orders on July 15-16,  and 23; September 9 and 10; November 1, 8,
   12,  23, and  30; and  December 13 and  14, 1993;  and January 7;
   February 2  and 22; March 16;  and  April 8, 1994.    Appellant's
   Daily Progress  Reports 22, 23,  28, 60, 61,  97, 102,  105, 112,
   115, 124, 125,  137, 156, 171, 187, 203,  Respondent's Exhibit 4;
   Transcript at 97-98.  However,  other work was being performed on
   all  of  these dates,  with  between  two and  sixteen  employees
   working on site.  Id.  Fidelity's daily progress reports indicate
   delays due  to change orders  on  August 22-24,  25, and 31,  and
   December 14 and 15,  1993.  Fidelity's  Daily Reports 58-61,  64,
   112-13, Respondent's Exhibit 13.
 
        The COTR's summary of delays reflects that as of May 1994:
 
        Miscellaneous  change order items  have been popping up
        over the  last few  months, the  prices for  which have
        been negotiated  with the contractor.   Final packaging
        of items  was determined at  the end of last  month and
        sent to contractor.   Contractor has performed  most of
        contract work not  affected by  pending change  orders.
        Contractor submits  all change  order packages to  date
        including time extensions.  Most costs are OK -- only a
        few are still questionable.
 
   Appellant's Exhibit 36.   As of June 1994, the  COTR wrote:  "All
   change orders  to date  are being  sent in to  Atlanta and  being
   processed.  Work at jobsite is proceeding around critical pending
   change order items."  Id.
 
   Problems Involving Fidelity
 
        The  record  indicates  that  delays  were  caused  by  both
   Fidelity and Young.  Young's president acknowledged that at times
   during the project  Fidelity did not  man the  job when asked  by
   Young to do so.  Transcript at 216; Respondent's Exhibits 29, 34.
   He testified:
 
        Q    . . . [S]o are  you saying [Fidelity] put adequate
        manpower on the job?
 
        A    For the full time of the job?
 
        Q    Yes.
 
        A    Not in  every case,  no.   Let  me rephrase  that.
        They put  adequate manpower on  the job but  there were
 
        just times  when they didn't  have, feel like  they had
        enough work to stay on the job.
 
   Transcript at 222-23.
 
        In his deposition, Young's president testified as follows:
 
        Q    [D]o you have an opinion  as to whether or not the
        project would  have  been finished  early  if  Fidelity
        would have put  more manpower on the job  or would have
        been more responsive  to [Young's] request for  them to
        come in and do work?
 
        A    Yes.
 
        . . . . 
 
        Q    How  much  sooner  would  the  project  have  been
        completed?
 
        A    The  project,  the  punch  list  could  have  been
        finished  in August  of '94.    It didn't  happen until
        October of '94.
 
   Transcript at 227.
 
        The COTR received complaints from Fidelity's  superintendent
   that Young would request him to work, but when  he got to the job
   he  discovered that  there was  only  a half  day's  work to  do.
   Transcript  at 449.    According  to  Fidelity's  daily  reports,
   Fidelity  began experiencing  difficulties in  its  work in  mid-
   August 1993. Fidelity's Daily Report 53, Respondent's Exhibit 13.
   Specifically, the   August 18 report noted:   "Bouncing around on
   framing and  nothing decided  on.  Can't  tie walls  into outside
   walls because they may be changed to sheetrock."  Id.  Fidelity's
   daily report for August 31, 1993, stated "[D]elays:  everything!!
   But still  being requested to stay on job and try to keep busy or
   look  that  way."    Fidelity's  Daily  Report  64,  Respondent's
   Exhibit 13.    By  letter  dated  September 27,  1993,   Fidelity
   notified Young that "as of the close of business tomorrow we will
   be at a standstill on [this] project  due to the changes in walls
   and ceiling work."  Respondent's Exhibit 19.
 
        There are  no daily reports  for Fidelity in the  record for
   the periods October 29-December 13,  1993, and July 30-August 29,
   1994.   See Fidelity's Daily  Report 109 (Oct. 28, 1993)  to next
   report in sequence,  112 (Dec. 14, 1993),  and 271 to  unnumbered
   next report in sequence (Aug. 30, 1994), Respondent's Exhibit 13.
 
        By letter dated November 8, 1993, Fidelity advised Young:
 
        We are  now in a delay  period as stated in  our letter
        dated  September 27,  1993  on   the  above  referenced
        contract.
 
        We will be leaving the  job site tomorrow.  When  it is
        determined that we will be  able to return to work with
        our full crew  and complete the job as bid,  we will do
        so. 
 
        . . . .
 
        We have been  on the job for a month  doing small items
        that have  come up,  but we cannot  continue to  do so.
        This is not the way we bid the job and we  are [losing]
        money as I am sure you can  understand.  This is why we
        will be demobilizing.
 
   Respondent's Exhibit 21. 
 
        By  letter dated December 13,  1993, Fidelity  advised Young
   that its "work  has been effectively shut down  and the efficient
   prosecution of our subcontract work has been materially disrupted
   since September 25, 1993."  Respondent's Exhibit 22.  
 
        Fidelity's December 14, 1993,  daily report  noted:   "Items
   were being done and ripped out and done again and moving too slow
   to even  warrant any manpower  on job."  Fidelity's  Daily Report
   112, Respondent's Exhibit 13.  By letter dated December 27, 1993,
   Fidelity  requested $51.14  per  day beginning  January 1,  1994,
   throughout the  duration of  time it would  take to  complete the
   project.   Respondent's Exhibit 26.   By letter  dated January 4,
   1994, Young responded to Fidelity:  "On 1/1/94 you were not being
   delayed."  Id.
 
        Young's  daily  progress   reports  indicate  that  Fidelity
   "pulled off the  job for unknown  reasons" on December 13,  1993,
   and that there were no Fidelity workers on the job on January 18,
   February 7  and 8, and March 4, 1994.  Appellant's Daily Progress
   Reports  124,  125,   159,  160,  179,  Respondent's   Exhibit 4.
   Fidelity's daily progress reports indicate that one employee, the
   superintendent,  was on the  job on January 18  and February 7-8,
   but that nothing was ready on February 7 and 8, 1994.  Fidelity's
   Daily Reports 135, 148-49.
 
        Subsequent   correspondence  between   Young  and   Fidelity
   reflects  delays  on  both  of  their parts.    By  letter  dated
   February 10, 1994, Fidelity advised Young that it had visited the
   jobsite on January 26,  1994, and that Fidelity  was experiencing
   delays  based  upon  unavailability  of  rooms,  interference  by
   another  contractor doing drywall work, and uncompleted duct work
   in the third floor courtroom.  Respondent's Exhibit 26.  Fidelity
   stated:  "We cannot afford to keep our  superintendent on the job
   doing  the  work of  laborers  in order  to  keep  our job  open.
   There's too  much unfinished work  to be done by  others delaying
   our progress in order to keep a full crew on the job."  Id.
 
        On  March 23,  1994,  the following  entry  appeared  in the
   Fidelity's daily progress reports:   "Talked to [the COTR]  about
   all the delays and nothing done in proper order.  Us doing finish
   work and painting  before mechanicals  even done,  the amount  of
   time wasted and waiting for items  to be approved or done.   [The
   COTR] said it is hindsight and job should have been shut  down in
   August 1993 but they wanted to keep going for [the court] to keep
   showing  something going  on."    Fidelity's  Daily  Report  182,
   Respondent's Exhibit 13. 
 
 
        Between March 25  and April 6,  1994, no  work  was done  by
   Fidelity   except   a   little    taping.      Fidelity's   Daily
   Reports 184-92,  Respondent's  Exhibit 13.     According  to  the
   April 5  report, Fidelity's  work was at  a standstill.   Id.  By
   letter dated May 6,  1994, Fidelity requested its delay  costs in
   the amount of $22,523.64.  Respondent's Exhibit 25.
 
        In a letter  dated June 20, 1994, Young's  president advised
   Fidelity:  "I have visited this jobsite on June 7, 1994.  You had
   no people on the job. .  . .  Your statement that you  now have a
   crew of men  at this site with  nothing to do is  totally false."
   Respondent's Exhibit 29.
 
        By letter dated August 18, 1994, Young advised Fidelity that
   work would be ready to be done by August 22, 1994, and that Young
   was expecting Fidelity to  put people on the job and complete all
   the remaining work in one week.  Respondent's Exhibit 32.
 
        By letter dated  September 16, 1994, Young  advised Fidelity
   that "you have not moved the project as you stated you would, and
   as Young has emphasized in  the past, you have underestimated the
   amount of work  needed to complete.   We once again ask  that you
   man   this  project   with   sufficient   forces  to   complete."
   Respondent's Exhibit 34.
 
        There were also delays related to Fidelity's  pricing.  When
   Fidelity priced its  change order work,  GSA determined that  the
   pricing was  too high and  asked Young to pursue  another method.
   Transcript at 194.  Thereafter, Young did some of the work itself
   or brought in another subcontractor to perform the new work.  Id.
   With respect  to modification PC-14,  Collins and Wright  did the
   drywall and metal stud work.  Id. at 195.   
 
        Fidelity completed its work on  this job on October 3, 1994.
   Fidelity's Daily Report 296, Respondent's Exhibit 13.
 
   The April 1994 Schedule
 
        In April 1994 Young met with the COTR at the site to discuss
   all  change order items  and time  extensions.   Young drew  up a
   construction schedule for  completion of the job showing  an end-
   of-May  completion date  and gave  this revised  schedule  to all
   subcontractors.   Appellant's  Exhibit 36.    In  May  1994  base
   contract work  unaffected by  any of the  change orders  had been
   completed.   Id.;  Transcript at  498.   However, there  was work
   remaining at  that time which  had not been completed  because it
   was affected by  the modifications.  Id.    On May 16,  1994, GSA
   issued  PC-08, which  extended the  contract  completion date  to
   March 13, 1994.  Appellant's Exhibit 8.
 
 
        Subsequently, GSA and Young had a meeting, and GSA requested
   Young to draw up a  revised construction progress schedule with a
   proposed  completion  date.    Respondent's Exhibit 104.    Young
   proposed a completion date of August 10, 1994, and the Government
   agreed with this completion date.  Appellant's Exhibit 10.
 
   The Status of the Job between August 10 and October 31, 1994
 
        Between   the  established   contract  completion   date  of
   August 10,  1994,  and   the  date  of  substantial   completion,
   September 16,  1994,  Young  was still  performing  original base
   contract work  which had  been affected by  change order  work as
   well    as     change    order     work.         Transcript    at
   478-79,[foot #] 7 497-98; Appellant's Exhibit 36.  
 
        The Government requested some additional work after the date
   of  the   scheduled   contract   completion,   August 10,   1994.
   Transcript at 421-22.   For example, when the  courts moved their
   equipment  into the  basement some  areas were  dark,  so surface
   light fixtures had to be added.  Id. at 422.
 
        On  August 17,  1994,  the  COTR  notified  Young  that  the
   contract completion  date established  by contract  modifications
   had passed  and  that  Young  was  now  in  a  period  for  which
   liquidated  damages were due.  Appeal File, Exhibit 9; Transcript
   at 477.  As  of that date, the mechanical work  was not ready for
   final  inspection, the electrical work was not complete, and only
   the third  floor judge's  chambers and  courtroom were  complete.
   Transcript at 477-78.  The  COTR prepared a memorandum supporting
   liquidated damages which stated:
    
        The present contract completion date is 8/10/94 and the
        substantial completion date is 9/16/94 which  means the
        contractor  is  subject  to liquidated  damages.    The
        contractor  has  shown  by  his  time  extension   cost
        breakdown  that he should receive a time extension, for
        this modification, from 8/10/94 to 10/31/94 or 82 days.
        In my  opinion, 82 day[s]  is totally unjustified.   We
        have been very lenient with  this contractor as far  as
        time extensions.   We had a meeting,  months before our
        last official  time extension (8/10/94),  and requested
        that the  [contractor] draw up  a revised  construction
        progress  schedule,  with a  proposed  completion date,
        based on  all the pending  modifications.  We  used his
        proposed completion date of 8/10/94 to grant him a time
        extension then.   Those pending modifications  included
                                                                    
                   ----------- FOOTNOTE BEGINS ---------
 
        [foot #] 7 The   parties   agree   that   the  project   was
   substantially complete on September 16, 1994.
 
                   ----------- FOOTNOTE ENDS -----------
 
 
 
        most  of  the items  in  CE 22.    In my  opinion,  the
        contractor is trying to cover his own delays due to the
        inefficiency of his  superintendent and subcontractors.
        The only reason that CE 22 has not been resolved a long
        time ago, is that the contractor continuously submitted
        proposals which included  items not pertaining  to this
        contract or  included costs  which I  challenged.   The
        contractor also  wanted to  include all time  extension
        costs   in  this  last   modification,  but  could  not
        determine  these costs due to a lawsuit brought against
        him by one of his subcontractors.   This project really
        fell   apart,  especially   toward   the   end.     The
        contractor's  project manager,  who  began the  project
        left  about midway [through]  the project, and  the new
        project  manager  left before  substantial  completion.
        The  contractor's   superintendent  also   left  before
        substantial completion.  These actions did not help the
        contractor  complete the  project  in a  timely manner.
        The  subcontractor who caused  the most delays  was the
        mechanical subcontractor.   He was very  non-responsive
        to  man  the  job  especially  toward  the  end of  the
        project, and his  work affected and delayed  many other
        trades.  In conclusion, I believe the contractor should
        still be subject to liquidated damages.
 
   Respondent's Exhibit 104.
 
   The Deficiencies and Omissions (D&O) List
 
        On  December 16, 1993, the COTR prepared a seventy-item list
   of  deficiencies  and  omissions,  also  known  as  a  punchlist.
   Appellant's Exhibit 30; Transcript at 422.
 
        The finish hardware items on  the D&O list arose because the
   courts changed specified  trim on the  hardware that Gilbert  had
   originally  chosen.    Transcript  at  425.    These  items  were
   completed on June 3, 1994.  Id.  Some of the other finish work on
   the  D&O list  had been  completed  by Fidelity,  but there  were
   problems with pricing and  Fidelity had not yet been  paid.  Id.;
   Respondent's Exhibits 102, 103.
 
        Another item on  the D&O list, the ladies'  toilets, was not
   completed until 1995.   The Government did not  cause that delay.
   Transcript  at 433.    Young  delayed  in installing  the  toilet
   partitions; late  in the job  it discovered these  partitions did
   not  fit  and needed  to order  extra  parts to  make  them work.
   Transcript at  432-33; see  also id.  at 156.   According  to the
   COTR,   the  CE-22  items  changed  "all  of  them,  constantly."
   Transcript at 436.
 
   The Lost Daily Reports
 
        On October 31, 1994, Young's superintendent closed down  the
   job, removed the job reports from the site, and  returned them to
   Young.   Transcript at  200.   Later, Young moved  its office  to
   Texas and lost all of  the reports dated after September 9, 1994,
   except    for   one,    the   report    for   October 4,    1994.
   Id.[foot #] 8      These   field   reports   would   have    gone
   through October 31.  Id. at 200-01. 
 
   Contract Time Extension Requests and Modifications
 
 
        On February 7,  1994, the  COTR issued  change estimate  ten
   (CE-10), requesting a proposal for asbestos abatement of the pipe
   chase  through  all   five  floors  of   the  building,  and   on
   February 10,  1994, Young submitted  a proposal for  the asbestos
   abatement  and requested a thirty-day time extension and extended
   overhead.  Young had previously submitted a proposal for asbestos
   abatement  on piping  in room  407 on  January 27, 1994,  and had
   requested a forty-five-day time extension and  extended overhead.
   No   overhead  was   sought  for   any   subcontractor  at   this
   time.[foot #] 9     The   direct   costs   of   both   of   these
   proposals were included in modification PC-08, which also granted
   a  seventy-five  day  time extension  and  extended  the contract
   completion date until March 13, 1994.  Appellant's Exhibit 8.
 
        Modification PC-10
 
        In  change  estimate  eighteen  (CE-18),  GSA  requested   a
   proposal to  remove existing  radiators  in the  basement and  to
   provide framing, drywall,  and finishing to conceal  the radiator
   piping in the basement.  Appellant's Exhibit 10.  Change estimate
   twenty (CE-20), dated  April 25, 1994, dealt with  radiator boxes
   and mechanical design work for all  changes in the basement.  Id.
   Modification  PC-10,  which  was   executed  on  August 1,  1994,
   encompassed  the  work in  CE-18  and  CE-20,  and  extended  the
   completion date  until August 10, 1994,  but did not  include any
   costs associated  with delays for these  work items.   Id.  Under
   modification PC-10, Young was compensated an 8% commission on its
   subcontractor's  work  on  CE-18  and  a  5%  commission  on  its
   subcontractor's work for CE-20.  Id.
 
        Modification PC-11
 
        In  change estimate fifteen (CE-15) the Government requested
   changes which included demolishing two  walls and ceilings on the
                                                                    
                   ----------- FOOTNOTE BEGINS ---------
 
        [foot #] 8 Young's field  reports 288, 290-295,  and 297-298
   are  also not in the record.   Respondent's Exhibit 4.  There are
   no field reports  in the record for Fidelity  between July 30 and
   August 29, 1994.  Respondent's Exhibit 13.
 
        [foot #] 9 By  letter dated May  9, 1994, Young  submitted a
   revised proposal for  change order work performed  under contract
   modification PC-08.   This proposal reflected  a seventy-five-day
   subcontractor  delay  billing  on  behalf  of  Fidelity  totaling
   $65,517.  Respondent's Exhibit 26.
 
                   ----------- FOOTNOTE ENDS -----------
 
 
   third  floor  and  framing and  finishing  five  walls, providing
   raised  floors in  the  basement  conference  room  and  computer
   training room,  installing drywall  window pockets,  painting and
   finishing  ceiling  areas  at the  basement  window  pockets, and
   adding vinyl wall  covering in lobbies.   Appellant's Exhibit 11.
   Young's  direct  costs and  markup  for  this work  were  $12,494
   without  delay costs.   Id.   These  additions were  reflected in
   modification PC-11, which added $12,494 to the contract, but  did
   not  include any  costs for  delays associated with  these items.
   Id.  Young received both 10% profit and 10% overhead on  its work
   and an 8% commission on its subcontractor's work on CE-15.  Id.
 
 
        Modification PC-12
 
        In change estimate  sixteen (CE-16) dated June 8,  1994, GSA
   requested a proposal for ten mechanical changes due to deletions,
   changes by the courts, changes in basement and mechanical  space,
   and  conflicts  above  the  ceiling.    Appellant's   Exhibit 12.
   Modification  PC-12, dated August 1,  1994, added $8723  for this
   work.  It  did not include any  costs associated with delays  for
   this work, but did include a 6% commission on the subcontractor's
   work.  Id.
 
        Modification PC-13
 
        In change estimate fourteen (CE-14), dated June 1, 1994, the
   Government  requested  a  proposal for  installing  a  chiller at
   ground  level  in  lieu  of   on  the  roof  area.    Appellant's
   Exhibit 13.    Modification  PC-13, dated  August 1,  1994, added
   $7336 for  this work, did  not include  any delay costs  for this
   work,  but did  include 10%  overhead and  10% profit  on Young's
   work, and an 8% commission on the subcontractor's work.  Id.
 
        Modification PC-14
 
        In change  estimate seventeen (CE-17), dated April 25, 1994,
   the  Government asked Young to provide additional drywall, drops,
   and  soffits in  the basement;  to  laminate designated  existing
   walls; and to provide a credit for not plaster-patching laminated
   walls.   Appellant's Exhibit 14.  In PC-14, dated August 1, 1994,
   GSA  added $9434  for Young's  direct costs  and markup  for this
   work, including  an 8%  commission on  the subcontractor's  work.
   Id.  The modification included  no costs associated with  delays.
   Id. 
 
        Modification PC-15
 
        In change estimate nineteen (CE-19) the Government requested
   additional electrical work in the  basement, including relocating
   fixtures and receptacles and  conduits, modifying the  electronic
   court recording  system, changing  the floor  boxes, and  similar
   work.  Appellant's Exhibit 15.  As a result of these changes, the
   Government in  modification PC-15, dated  August 16, 1994, agreed
   to  pay   Young  $8188,  which   included  a  6%   commission  on
   subcontractor work, but no costs  for delays associated with this
   work. 
 
 
        Modification PC-16
 
        On July 27,  1994,  GSA  requested  seventeen  miscellaneous
   changes  in change estimate  twenty-one A (CE-21A).   Appellant's
   Exhibit 16.   These changes  included changing  glass, paint  and
   wood  trim; installing  a  shower door  and  metal access  doors;
   routing sprinkler pipe; reinsulating abated piping; and providing
   HVAC control training.   Id.  Young's proposal  for this work did
   not seek  any delays or  costs associated with  delays.  Id.   In
   modification PC-16  the  Government  paid  Young  $26,356,  which
   included 10% overhead  and 10% profit for Young on  its own work,
   and an 8% commission on the subcontractor's work.  Id.
 
        For the work in CE-14 through CE-20, Young requested a total
   of 100  days of  extended overhead  for Young  and  100 days  for
   Fidelity.  Appellant's Exhibits 10-15. 
 
        Modifications PC-17 and PC-18
 
        By   letter  dated  January 29,   1997,  Young  submitted  a
   breakdown for  revised change  estimate twenty-two  (CE-22) which
   included:   (1) the remaining  additional direct  cost items  for
   various  items of  work, (2) a request  for 304  days (January 1-
   October 31,  1994) of  extended  field  office  and  home  office
   overhead costs  for Young,  and (3) a  request for  $43,233.27 of
   field  office overhead  and $24,947.64  of  extended home  office
   overhead for  its  subcontractor Fidelity.   Supplemental  Appeal
   File, Exhibit G18; Stipulation II.4.
 
        The direct costs in CE-22 included changes in panels in wood
   doors,  changes in hardware finishes, wall covering, extra toilet
   partitions,  electrical   work,  and   additional  finishes   and
   painting,  totaling $21,156.62, including an 8% commission on the
   subcontractor's work.    Appellant's Exhibit 17.    Young  sought
   field office overhead in the amount of $67,196.16 and home office
   overhead in the amount of  $59,635.68 for a total of $126,831.84.
   Id.  The $67,196.16 represented 304 days at a rate of $221.04 per
   day.   Id.   Fidelity's  home office  overhead in  the amount  of
   $24,947.64 was based  on 276 days (January 1-October 3,  1994) of
   delay at a rate of $90.39 per day.
 
        By letter  dated November 26, 1997, the  contracting officer
   responded to  Young's January 29, 1997  revised CE-22,  enclosing
   contract   modifications  PC-17   and   PC-18.     Appeal   File,
   Exhibits 14, 21;  Stipulation II.5.  Contract  modification PC-17
   accepted  Young's  January 29, 1997,  breakdown  of  direct costs
   associated with the items in  CE-22, and this resolved the direct
   cost  portion   of  CE-22.     Appeal   File,  Exhibits 14,   17;
   Stipulation II.6.
 
        Contract modification PC-18 granted  extended overhead at  a
   daily rate  of $254  per day  for 118  of the  259 calendar  days
   between  December 31, 1993, and September 16, 1994.  Appeal File,
   Exhibit 21; Complaint    20;  Answer   2;  Stipulation II.7.   In
   allowing 118 days  of compensable delay  for PC-18, the  contract
   specialist  awarded  half  of  the  seventy-five  days  of  delay
   incorporated inPC-08plus eightydays. Transcript at394.[foot #] 10
 
        Modification  PC-18, with an  effective date of November 20,
   1997,  added  $29,972  to  the contract  price  and  provided  as
   follows:
 
        This  action   confirms  the   Government's  unilateral
        determination  on  payment of  all fair  and reasonable
        extended overhead costs for the  period of 12/31/93  up
        to  and  including  substantial  completion  issued  on
        9/16/94, all  in the amount of $29,972.   Your contract
        is  increased accordingly.  . .  .   Extended  overhead
        costs for 118 calendar days at a rate of $254.00/day.
 
   Appellant's Exhibit 18. 
 
   The Delay in Payment of Modification PC-17
 
        Modification PC-17, representing the direct costs in  CE-22,
   was negotiated and  agreed to on  February 8, 1997.   Appellant's
   Exhibit 17; Transcript at 338.   However, the costs contained  in
   this modification  were not  paid until  June 1998,  some fifteen
   months later.  Transcript at 339-41.
 
        On  September 8, 1997,  the  contract  specialist drafted  a
   letter authorizing payment  of $21,156.62 as the direct costs for
   CE-22 and $29,972  of extended overhead for 118  calendar days at
   the  rate   of  $254  a   day.    Appellant's  Exhibit 42.     On
   September 25, 1997, the COTR requested funding from GSA's funding
   authorization official  for CE-22 direct  costs in the  amount of
   $21,156.62 and  for extended  overhead payments  for 118  days at
   $254  a day  in  the  amount  of $29,972.    Transcript  at  364;
   Appellant's  Exhibit 43.   In response,  a  GSA funding  official
   advised   the  contract  specialist  via  an  e-mail  message  on
   September 29  that funds were  available.  Transcript  at 365-66;
   Appellant's Exhibit 41.   The contract specialist testified  that
   he did  not follow  up on  this because  he was  "waiting on  the
   funding," and did  not recognize the e-mail message  as a funding
   authorization.   Transcript at  370.  Rather,  he stated  that he
   needed a procurement request, PR Form 49, signed in triplicate in
                                                                    
                   ----------- FOOTNOTE BEGINS ---------
 
        [foot #] 10 In an earlier  effort to compromise this  claim,
   the COTR, as reflected in  an e-mail message dated June 20, 1997,
   had recommended paying  Fidelity and Young extended  overhead for
   259 days.  Appellant's Exhibit 37.  However, this was strictly by
   way of compromise.   The COTR did not make an  analysis using the
   Eichleay formula.
 
                   ----------- FOOTNOTE ENDS -----------
 
 
   order   to   obtain   funding.      Id.   at   366-70.[foot #] 11
   However,   the  person  at  GSA  responsible  for  funds  control
   testified  that   the  e-mail   message  requesting   funding  on
   September 25,  1997, was a procurement request for funding in the
   amounts  of $21,156.62  and $29,972.   Id. at  530.   She further
   testified that  on September 26 she  sent the e-mail  messages to
   the GSA person  who tracks the funds,  who in turn  responded via
   e-mail  to the  contract  specialist  on  September 29  that  the
   requested funds were available and approved for use; upon receipt
   of this e-mail  message from the funding  personnel, the contract
   specialist could have issued a modification utilizing those funds
   the  very next  business  day.   Transcript  at 531;  Appellant's
   Exhibit 41.   We find the testimony of  GSA's person in charge of
   funds  control to  be more  credible  than that  of the  contract
   specialist,  who claimed  funding was  not  authorized.   Compare
   Transcript at 361-70 with id. at 529-35.[foot #] 12
 
 
        The modifications  were not issued  until November 26, 1997.
   Appeal  File, Exhibits 13,  14.    On  December 12,  1997,  Young
   submitted  an  invoice in  the amount  of $64,960.   Respondent's
   Exhibit G-19.  The COTR corrected the invoice in his construction
   progress  report  dated  January 6,  1998,  concluding  that  the
   contractor  was entitled  to payment  in the  amount  of $44,944.
   Transcript at 407-08.   The difference in the  amounts is due  to
   the facts that (1) the contractor made a calculation error on its
   construction progress report by adding the bond premium twice and
   (2) the  project manager retained $11,100 for liquidated damages.
   Affidavit of  Don Wilbanks (June 18,  1998)   6.   This corrected
                                                                    
                   ----------- FOOTNOTE BEGINS ---------
 
        [foot #] 11 The  contract specialist  had  testified in  his
   deposition:
 
        [Q.] Do  you  have   any  knowledge  as  to   why  [the
        contracting  officer] did not  go ahead and  send these
        [modifications] out[?]
 
        [A.] Well I wish I could blame this on someone else but
        evidently   I  found   this   stuff  in,   just  before
        Thanksgiving, in  November and realized that  it hadn't
        gone out,  so this is probably  a faux pas on  my part.
        It is  interesting to  note that at  the time  I didn't
        have funding to go with  it back in early September but
        it is  possible that  a copy of  this was  forwarded to
        [agency payment personnel].
 
   Transcript at 369.
 
        [foot #] 12 The   contract   specialist  also   gave   other
   unsubstantiated  reasons that  the Government  did  not pay  this
   invoice  sooner.     He  claimed  he  did   not  have  sufficient
   information  to  make  payment,  that he  was  busy  with another
   contract, and  that counsel  advised him not  to pay  the invoice
   until it was corrected.  Transcript at 343-44.
 
                   ----------- FOOTNOTE ENDS -----------
 
 
   invoice  was then  forwarded  to the  contract  specialist.   The
   contract  specialist  then  prepared   a  corrected  construction
   contract  payment  voucher  bearing  the  date  January 8,  1998,
   showing the correct amount due, $44,944.  Transcript at 409.  
 
 
        However, the contract specialist did  not pay this amount in
   January because he claims the invoice submitted by the contractor
   was defective even though it had been  corrected by the COTR.  He
   testified:  "I didn't  have an original invoice after I  sent the
   other invoice back.  What  is required by finance is contractor's
   letterhead, original  signature, correct  invoice.   Once I  sent
   back  the defective invoice I didn't  have an original signature.
   All I  had was  the photocopy  and I  never received a  corrected
   invoice.  Therefore  I felt like I couldn't pay  it."  Transcript
   at  410-11.    The  contract   specialist  did  not  prepare  the
   construction   payment  voucher  until   May 21,  1998  --  after
   appellant had filed a motion  for summary relief in these appeals
   to recover this payment.   When the contract specialist paid this
   "uncorrected"  invoice several  months later,  he  still had  not
   received a corrected invoice from the contractor.  Id. at 411-12.
   Young received this payment on June 1, 1998.  Id. at 410. 
 
        Young's president  never  received any  indication that  his
   invoice  was invalid  or incorrect.   Transcript  at 554-55.   He
   never had received any letter  from GSA asking that he reevaluate
   or revise or resubmit an invoice.  Id. at 555.
 
 
 
   Progress Payments Young Received
 
        Young  received fifteen payments during the period from June
   1993 to October 1994:
 
             Date Issued                   Amount Paid
 
         1.    6/23/93                   $8,916
         2.     8/6/93                 $160,255
         3.     9/2/93                 $231,091
         4.    9/29/93                  $79,282
         5.    11/3/93                  $89,021
         6.    12/2/93                 $124,006
         7.    1/12/94                 $122,700
         8.     2/1/94                 $156,571
         9.     3/9/94                  $88,989
        10.     4/1/94                  $64,476
        11.     5/4/94                  $56,116
        12.    6/11/94                  $50,232
        13.    7/12/94                  $76,027
        14.     8/4/94                  $82,700
        15.   10/20/94                  $40,198
        16.    5/18/98                  $44,944
   Respondent's  Exhibits 1, 2;  Transcript at  174-75; Supplemental
   Appeal File, Exhibit G-19.
 
 
        On  May 21,  1998,  the contracting  officer  wrote  a final
   decision enclosing modification PC-19,  which assessed $11,100 of
   liquidated  damages  for  the  thirty-seven-day  period   between
   August 10  and  September 16,  1994.   Appeal  File,  Exhibit 31;
   Stipulation II.8.
 
                               Discussion
 
   Is  Young Entitled  to Extended  Overhead for  Any Days  of Delay
   Beyond the 118 Days Already Allowed?
 
        The parties have  stipulated that the principal  issue to be
   determined by  the Board  in GSBCA 14437  is "whether  additional
   calendar days  of extended overhead  costs, in excess of  the 118
   calendar days in  PC-18, are due and  . . . whether  the Eichleay
   formula  is the  proper method  for determining  the home  office
   portion of the extended overhead costs."[foot #] 13
 
          Field office overhead  costs are direct costs  incurred on
   the  specific project due to  the delay.  Blinderman Construction
   Co. v. United States,  39 Fed. Cl. 529, 588 n.  56 (1997), aff'd,
   178 F.3d 1307 (Fed. Cir. 1998).    Home office overhead costs are
   those  costs that  are  expended  for the  benefit  of the  whole
   business and cannot be  attributed to any particular contract  --
   typically account and  payroll services,  salaries for  managers,
   general insurance, utilities, and  the like.  Melka  Marine, Inc.
   v. United States,  187 F.3d 1370,  1375  (Fed. Cir.  1999), cert.
   denied, 120 S.Ct. 1555 (2000); Altmayer v. Johnson, 79 F.3d 1129,
   1132  (Fed. Cir.  1996).   The Eichleay  formula  calculates home
   office overhead costs to be reimbursed if work on a contract  was
   suspended, and if that suspension decreased "the stream of direct
   costs   against   which   to  assess   a   percentage   rate  for
   reimbursement."    C.B.C.  Enterprises,  Inc.  v.  United States,
   978 F.2d 669,  671 (Fed.  Cir. 1992);  see Eichleay  Corp., ASBCA
   5183, 60-2 BCA   2688.
 
        Counsel for appellant  stated in his opening  statement that
   the 118 calendar days of delay  in the "aggregate" amount of $254
   per  day cover  both Fidelity  and Young.   Transcript  at 17-18.
   Therefore,  we assume  that  both  Young  and  Fidelity  received
   extended  overhead  for  118  calendar  days  of  delay  in  some
   compromised amount.   We recognize that we are not called upon to
   review the  validity of  the Government's  compromise of  the 118
                                                                    
                   ----------- FOOTNOTE BEGINS ---------
 
        [foot #] 13 The stipulation further states:  "The amounts of
   extended  overhead (both field office  and home office) which are
   due Young and its subcontractor,  Fidelity, will be determined on
   remand  to the parties  for negotiation and  audit, if necessary.
   If the parties are  unable to reach agreement on quantum,  then a
   subsequent appeal will determine the amounts due."
 
                   ----------- FOOTNOTE ENDS -----------
 
 
   calendar days at the rate of $254 per day.  However,  in deciding
   whether either Young or  Fidelity is entitled to  additional days
   of  home  office  and  field  office  overhead,  we must  analyze
   separately whether each has satisfied all of the requirements for
   entitlement to such  damages.  E.g., E. R.  Mitchell Construction
   Co. v. Danzig, 175 F.3d 1369, 1374 (Fed. Cir. 1999).  In order to
   recover  extended overhead, appellant  has the burden  of proving
   that the delay was proximately caused solely by Government action
   and  was not concurrent with contractor-caused delay.  William F.
   Klingensmith, Inc. v. United States, 731 F.2d 805, 809 (Fed. Cir.
   1984); M. Raina Associates, Inc.,  ASBCA 50486, 99-1 BCA   30,180
   at 149,319.   Based upon the  record before us,  we conclude that
   neither Young nor Fidelity is  entitled to any additional days of
   delay.   Appellant has not  proven entitlement to additional home
   office overhead under  the Eichleay formula.    Nor has appellant
   marshaled the requisite specific proof of the proximate causation
   of its additional  field office overhead  costs.  Blinderman,  39
   Fed. Cl. at 588 n. 56.
 
 
        It  is  clear that  the  Eichleay formula  is  the exclusive
   method  for  calculating  extended home  office  overhead  when a
   contractor  otherwise meets  the Eichleay  prerequisites.   Melka
   Marine, 187 F.3d  at 1374-75; Wickham Contracting Co. v. Fischer,
   12 F.3d  1574, 1580-81  (Fed. Cir.  1994).   In order to  recover
   unabsorbed overhead  under the Eichleay  formula, appellant  must
   prove  three  elements:   "(1) the  Government  imposed  a delay;
   (2) the Government required  the contractor to 'stand  by' during
   the delay; and (3) while 'standing  by' the contractor was unable
   to take on additional work."  Sauer Inc. v. Danzig, 224 F.3d 1340
   (Fed.  Cir. 2000);  Satellite  Electric Co.  v. Dalton,  105 F.3d
   1418,  1421  (Fed.  Cir. 1997);    Interstate  General Government
   Contractors v. West, 12 F.3d 1053 (Fed. Cir. 1993).
 
        The Court of Appeals for the Federal Circuit has specified:
 
        [W]hen  a  contractor  can  show  that  the  Government
        required  a contractor to  remain on "standby"  and the
        Government-imposed   delay    was   "uncertain,"    the
        contractor  has  established  a  prima  facie  case  of
        entitlement to  Eichleay formula  damages.   The burden
        then shifts  to  the  government  to  present  rebuttal
        evidence or argument  showing that  the contractor  did
        not suffer or should not have suffered any loss because
        it was  able to either  reduce its overhead or  take on
        other work during the delay.
 
   Satellite  Electric  Co., 105  F.3d at  1421 (citing  Mech-Con v.
   West, 61 F.3d 883, 886 (Fed. Cir. 1995)). 
 
   Did Young Establish Government-Caused Delay?
 
        Appellant  submits that there  are three periods  of time in
   which Young was delayed by the Government.  These are:
 
        January 1-March 16, 1994, for a total of 75 days;
        March 16-August 10, 1994, for a total of 147 days; and
        August 10-October 31, 1994, for a total of 82 days.
 
   Appellant's Posthearing Brief at 30.
 
        At the  outset we note that we are  hampered in this case by
   the lack of  any persuasive delay  analysis or schedule  analysis
   offered by  appellant.   Appellant's comparison  of its  approved
   schedule  with the as-built  schedule compiled by  its president,
   coupled with this witness' testimony, establishes that there were
   delays, but  this  exhibit  and  testimony do  not  constitute  a
   preponderance of  the evidence as  to the cause of  these delays.
   Appellant's  Exhibit 21.  Further, appellant  did not call any of
   its  own superintendents or  subcontractor employees who  were on
   the job with  some frequency; appellant's sole  employee witness,
   its president,  visited the site  only ten times  on a job  which
   spanned some 504 days.
 
        The  First Alleged Period  of Delay: Seventy-Five  Days from
   December 31, 1993, to March 16, 1994
 
        Appellant  claims  entitlement  to   extended  overhead  for
   seventy-five days of  delay between December 31, 1993,  and March
   16, 1994, "for  unanticipated asbestos which had to  be abated in
   various       phases       of       the      project."[foot #] 14
   Appellant's Posthearing Brief at 48-49.
 
        During this time  frame, there was  no actual suspension  of
   work;   nor    were   appellant's    employees   idle.[foot #] 15
   However,  this is not  an insurmountable obstacle  to appellant's
   Eichleay claim.   The  Court of Appeals  for the  Federal Circuit
   recognized in  Altmayer v. Johnson  that contractors may  use the
   Eichleay formula when  Government-caused disruption or  delay has
   made the  length of  a performance period  uncertain.   The Court
   stated: 
 
        The proper  standby test focuses on the  delay . . . of
        contract performance  for an uncertain  duration during
        which  a  contractor  is required  to  remain  ready to
        perform.   Interstate, 12  F.3d at  1058.  Indeed,  the
        linchpin   to  entitlement   under   Eichleay  is   the
        uncertainty   of   contract  duration   occasioned   by
        Government  delay or disruption.  See, Wickham, 12 F.3d
        at 1577  and . . . C.B.C., 978 F.2d at 672 (contractors
        can use Eichleay when disruption  or delay have "cast a
 
                                                                    
                   ----------- FOOTNOTE BEGINS ---------
 
        [foot #] 14 The  record  indicates  that  the  unanticipated
   asbestos was first discovered in July 1993.
 
        [foot #] 15 There were  days when  Fidelity's employees  did
   not work.  See Respondent's Exhibit 13.
              ___
 
                   ----------- FOOTNOTE ENDS -----------
 
 
 
        cloud of uncertainty over the length of the performance
        period of the contract").
 
   79 F.3d at 1133.
 
        In  the instant  case, appellant's discovery  of substantial
   quantities of unanticipated asbestos which  had to be abated  and
   which prevented other work from proceeding is precisely the  type
   of  uncertain  delay  and  disruption  contemplated by  Altmayer.
   Indeed,  the drawings  mandated that  construction  was to  "stop
   immediately"  if any unforeseen asbestos were encountered, and it
   is clear that some work did  stop.  The COTR's summary of  delays
   for July 1993 stated:  "Mechanical demolition and most other work
   is  stopped until  [the asbestos]  conditions  can be  remedied."
   There is also evidence that Fidelity's work was "effectively shut
   down"  or severely disrupted at times between September 27, 1993,
   and January 1994.
 
        Further, the specifications and plans were so deficient with
   regard to asbestos that it was impossible to predict the quantity
   of  the unforeseen asbestos -- a  circumstance which rendered the
   duration     of     the     delay     and     disruption     most
   uncertain.[foot #] 16        Finally,   the    nature    of   the
   asbestos abatement  work -- dealing  as it did  with contaminated
   materials -- necessarily  prevented other work from proceeding or
   so  disrupted planned  performance  that  it generated  uncertain
   delays until it  could be completed.   However, it is  clear that
   this work was  completed in mid-March 1994.   The record supports
   the   conclusion  that   all  seventy-five   claimed   days  were
   attributable to  the unforseen  asbestos and  were exclusively  a
   Government-caused delay,  satisfying the uncertainty  and standby
   requirements  necessary  to  establish  a  prima  facie  case  of
   entitlement to  Eichleay damages  as well  as entitlement  to any
   field  office overhead costs proximately caused by the unforeseen
   asbestos.[foot #] 17
 
        The Second Alleged Period of Delay:  One Hundred Forty-Seven
   Days from March 16 to August 10, 1994
 
        For  the alleged  second period  of  delay, appellant  seeks
   extended overhead for 147 days from March 16, 1994, to August 10,
   1994,  due  "to the  many  changes  necessary to  either  correct
   defects  in  the  plans  and specifications  or  to  make changes
   because GSA's client, the court,  did not like the original plans
                                                                    
                   ----------- FOOTNOTE BEGINS ---------
 
        [foot #] 16 The quantity of asbestos  actually found in this
   building  was  so  much  greater  than  that  identified  in  the
   specifications   that  EMS'   abatement   costs  increased   from
   $29,669.15 to $173,190.05. 
 
        [foot #] 17 Because  the parties  have stipulated  that only
   entitlement  is  before us,  we make  no finding  as to  proof of
   quantum.
 
                   ----------- FOOTNOTE ENDS -----------
 
 
   and specifications."   Appellant's Posthearing Brief at  49.  The
   record does not support  a conclusion that there were 147 days of
   Government-caused delay  attributable to such changes  during the
   March-August 1994 time frame.
 
 
        First,  some of the  changes appellant contends  occurred in
   this second period of delay actually occurred earlier in the job.
   Discrepancies  between the  drawings  and  the  field  conditions
   regarding  radiators and piping, and the ceiling height, occurred
   in  the  June-July  1993  time frame,  according  to  the  COTR's
   June 10, 1994, memorandum and Young's daily progress reports.
 
        Second, the  delays which  the record does  support in  this
   time  frame  were not  solely caused  by  GSA.   As the  Court of
   Appeals for the  Federal Circuit recently recognized  in Sauer v.
   Danzig:
 
        In  order   to  demonstrate  a   compensable  delay,  a
        contractor must separate  government-caused delays from
        its own delays.  See, e.g., T. Brown Constructors, Inc.
        v.  Pena,  132 F.3d  724,  734-35   (Fed.  Cir.  1998);
        Commerce Int'l Co. v. United States, 338 F.2d 81, 89-90
        (Ct. Cl. 1964) (applying "the rule that there can be no
        recovery where  the [government's] delay  is concurrent
        or intertwined with other delays").
 
   224 F.3d  at  1348.   There were  delays due  to  work which  was
   performed out-of-sequence due  to Young's coordination decisions;
   Fidelity had done finish work and  painting before the mechanical
   work was  completed, and painting had  to be redone.   There were
   also delays due to Fidelity's failure to man the job.
 
        The  delays associated  with the  change  order process  are
   attributable  not  only  to  GSA,  but  also  to  Young  and  its
   subcontractors.    Therefore, those  delays are  not compensable.
   Sauer.  At times, GSA submitted vague change order proposals, but
   at other  times Young  and its  subcontractors failed  to provide
   sufficient breakdowns.  The record also indicates that Fidelity's
   pricing  was   too  high  and   that  this   resulted  in   other
   subcontractors  being asked  to do  the  work for  certain change
   orders, also causing delay.
 
        The delays  relating to the mechanical subcontractor, Triad,
   must be shared  by the Government, Young, and  Triad.  The COTR's
   redesign  of  the basement  was  so  sketchy  that Triad  had  to
   redesign and  retrofit the HVAC  equipment in the  field, causing
   delays.   However, according  to Young's  own correspondence  and
   daily  reports, Triad also  was the  cause of  delay in  that its
   employees failed to  show up for work, delayed  demolition in the
   basement, and failed  to provide change order  pricing breakdowns
   to the point where Young called Triad "nonresponsive." 
 
        Third, the type of delays which Young claims occurred during
   this period, stemming from  the deficiencies in the drawings  and
   the changes by the courts, did not cause a suspension of  work or
   standby or the  same degree of uncertainty and  disruption as did
   the unforeseen asbestos.   Nor do we have  sufficient evidence of
   record to allocate these delays  to specific time periods.  Young
   has not established a prima facie case of entitlement to Eichleay
   damages or  entitlement to  field office  overhead for  itself or
   Fidelity due to these delays.
 
 
        The  Third Alleged  Period of  Delay:  Eighty-two  Days from
   August 10 to October 31, 1994[foot #] 18
 
        Young  contends that it experienced eighty-two days of delay
   because "the impact of the asbestos delays and changes to correct
   defective  plans  and  specifications  and   make  owner  changes
   discussed in the first two delay periods forced the completion of
   follow-on base  contract and punch  list work through the  end of
   October, 1994."  Appellant's Posthearing Brief at 49.   Appellant
   does  not specify  on which  dates  the impact  of asbestos  work
   caused   delays   during   this  period.[foot #] 19      In   our
   view, the record supports delays  due to impact and disruption on
   other work from the unforeseen  asbestos -- but none beyond those
   already  allowed.   In  reimbursing  appellant  for  118 days  of
   extended  overhead, the Government  has conceded forty-three days
   of such  damages in addition  to seventy-five days of  damages to
   which Young is entitled for the first delay period.  These forty-
   three  days would  cover  the  impact  caused by  the  unforeseen
   asbestos  removal.   The record  does  not support  a finding  of
   impact  due  to  defective  plans  and  specifications  or  owner
   changes.  In short, while the record may support forty-three days
   of extended overhead damages conceded by GSA due to the impact of
   the unforeseen asbestos, it can support no more.
 
        With respect to  the third period of delay,  the record does
   not support  a finding  of  exclusively Government-caused  delay.
   Rather,  there  is  evidence that  Young  and  its subcontractors
   caused delay during this period.  Two of Young's project managers
   left the job before substantial completion,  thereby contributing
   to the delays at the end of the project.   Young s correspondence
   to  Fidelity indicates that it was  not satisfied with Fidelity s
   efforts  to man  the job  in  June, late  August, and  September.
                                                                    
                   ----------- FOOTNOTE BEGINS ---------
 
        [foot #] 18 Young contends that there  was delay on  eighty-
   two days  between August 10 and October 31, 1994,  because of the
   changes contained in contract  modifications PC-09, PC-10, PC-11,
   PC-12,  PC-16,  and  PC-17.    Appellant's  Reply  Brief  at  17.
   However, Young's proposal for the work  in modification PC-16 did
   not seek any delays or delay costs.
 
        [foot #] 19 Contemporaneous  evidence,  i.e.,  Young's daily
                                                ____
   progress  reports, is  missing for  the  time period  September 9
   through  October 9,  1994  -- solely  due  to  Young's admittedly
   losing  them.   Nor  are there  daily reports  in the  record for
   Fidelity from July 30 to August 29, 1994.  
 
                   ----------- FOOTNOTE ENDS -----------
 
 
   Specifically,  as  of  late  August  1994,  Young  was  expecting
   Fidelity to "put people on the job and complete all the remaining
   work in one week."  Respondent's Exhibit 32.  In a letter a month
   later, Young criticized  Fidelity for not moving the  project and
   asking that it man the project with sufficient forces to complete
   the job.  Respondent's Exhibit 34.
 
 
        Young  itself proposed a completion date of August 10, 1994.
   Young's president testified that  the punch list work could  have
   been finished in August 1994, but was not completed until October
   1994  because Fidelity  did not  put  more manpower  on the  job.
   Young also caused delay because toilet partitions did not fit and
   required extra parts.
 
        Further, with respect to the  third period of alleged delay,
   the Board has recognized that recovery of  unabsorbed home office
   overhead   is  inappropriate  for   delays  after  the   date  of
   substantial  completion when  the amount  of work  to be  done is
   minimal and  the contractor had  not established that  the delays
   beyond  substantial completion  hindered its ability  to increase
   its bonding  and secure additional  work.    P. J. Dick,  Inc. v.
   General  Services Administration, GSBCA 12058, 96-1 BCA   28,188,
   at 116,158; EMS, Inc., GSBCA 9588, et al., 90-2 BCA   22,876.
 
        In sum, appellant has failed to prove that additional delays
   beyond the forty-three  days GSA conceded in the  third period of
   alleged  delay   were  exclusively   Government-caused.     Thus,
   appellant has failed  to prove a prima facie  case of entitlement
   to  additional Eichleay damages  or field office  overhead during
   this period.
 
   Was It Impractical for Young to Obtain Replacement Work?
 
        Even  assuming  arguendo that  appellant  had established  a
   prima  facie case  of Eichleay entitlement  for more  than forty-
   three  days  during  the  second  and  third  periods  of  delay,
   appellant  has not  met  its  burden of  persuading  us that  its
   obtaining  replacement  work was  impractical.   As the  Court of
   Appeals recognized in Melka Marine:
 
        The  burden on  the  government,  however,  is  one  of
        production only--Melka still bears the ultimate  burden
        of persuasion that it was impractical for  it to obtain
        sufficient  replacement work.   See Satellite Elec. Co.
        v.  Dalton,  105  F.3d  1418,  1421  (Fed.  Cir.  1997)
        ("Despite  the shift in  the burden of  production, the
        contractor  must nevertheless 'establish . . . (3) that
        it  was unable  to take  on other  work.'   Altmayer v.
        Johnson, 709 F.3d 1129, 1133 (Fed. Cir. 1996).").
 
   187 F.3d at 1376.
 
        Here,  the Government  has met its  burden of  production by
   demonstrating  that Young's stream  of income was  not disrupted,
   that  Young received continuous progress payments, and that Young
   performed   additional  change-order  work   for  which   it  was
   compensated during these periods. There is no basis in the record
   to find that Young's overhead was unabsorbed or  that there was a
   disruption in Young's stream of income because performance of the
   contract  was suspended or significantly interrupted during these
   time  frames,  beyond  the forty-three  days  noted.   Interstate
   General, 12 F.3d  at 1057.  There was no testimony by appellant's
   president regarding jobs on which  Young could not bid because of
   the delays.  Cf. P. J. Dick, Inc.  Eichleay  damages compensate a
   contractor  for   its  overhead  which   is  unabsorbed   because
   performance  of  the  contract  was  suspended  or  significantly
   interrupted  and additional contracts were unavailable during the
   delay when payment for the suspended contract activity would have
   supported such  overhead.  Interstate  General, 12 F.3d  at 1057.
   This critical element of Eichleay entitlement is missing here.
 
 
        There is  evidence, in  the form  of  Fidelity's letters  to
   Young, that Fidelity was prevented from bidding on other jobs and
   that  its stream  of  income  was disrupted,  but  there is  also
   evidence that Fidelity had a limited bonding capability  from the
   outset of the project.  However, we need not decide whether  this
   evidence, unsupported as  it is by the testimony  of any Fidelity
   employee,  carried   appellant's  burden  of  persuasion   as  to
   Fidelity,  since the first two prerequisites for Eichleay damages
   have not been met.
 
        As  such,  neither   Young  nor  Fidelity  is   entitled  to
   additional Eichleay damages.
 
   Is Recovery Barred by an Accord and Satisfaction?
 
        Respondent contends that the parties negotiated and executed
   four  bilateral contract modifications for changed work which did
   not contain a  reservation of rights and thus  barred recovery of
   Eichleay damages.  Respondent's  Posthearing Brief at 20-21.   In
   particular,  the  Government  points  to  contract  modifications
   PC-03, PC-04, PC-09, and  PC-16, which all include  the following
   language:  
 
        The  equitable  adjustment  in  this modification  also
        includes all direct, indirect and cumulative impact and
        delay costs, if any, incurred in performing the changed
        (and  unchanged)   contract  work   affected  by   this
        modification.
 
        It is well  established that discharge of a  claim by accord
   and satisfaction occurs when some performance different from that
   which was  claimed  is  due  is  rendered  and  such  substituted
   performance  is accepted by the  claimant as full satisfaction of
   the claim.   The  essential elements of  an effective  accord and
   satisfaction  are  proper   subject  matter,  competent  parties,
   meeting  of the  minds,  and  consideration.   Here,  the  record
   clearly reveals an understanding between the parties to defer the
   Eichleay claim.  Thus, the parties recognized that these remained
   in  dispute and there  was no meeting  of  the minds  in the four
   modifications  that the Eichleay  claims were fully  resolved and
   thus   barred  by  accord   and  satisfaction.     Peter  Bauwens
   Bauunternehmung  GmbH & Co.,  ASBCA 44679, 98-1 BCA    29,551, at
   146,496-97; see generally  Zueblin v. United States, 44  Fed. Cl.
   228, 232 (1999) (there can be no accord without a meeting  of the
   minds).
 
 
        As the Court  of Appeals for the  Federal Circuit recognized
   in  Community Heating  & Plumbing  Co.  v. Kelso,  987 F.2d  1575
   (Fed.Cir. 1993):
 
        [C]ourts  may  refuse to  bar  a claim  based  upon the
        defense of  accord and  satisfaction where the  parties
        continue to  consider the  claim after  execution of  a
        release.  Winn-Senter Constr.  Co. v. United States, 75
        F.Supp. 255,  110 Ct.  Cl. 34  (1948).   "Such  conduct
        manifests an  intent that  the parties  never construed
        the  release as  an abandonment of  plaintiff's earlier
        claim."    A  &  K  Plumbing  &  Mechanical,   Inc.  v.
        United States, 1 Cl. Ct. 716, 723 (1983). 
 
   Id. at 1581; see also Brock and Blevins Co. v. United States, 343
   F.2d 951, 955 (Ct. Cl. 1965); Blake Construction Co., GSBCA 4742,
   80-2 BCA    14,756 (subsequent behavior of  parties together with
   absence of  reference to contract  price in change  order negates
   implication  that  a   mutual  agreement   and  satisfaction   of
   appellant's  claim for impact  costs was reached);  Gardner Zemke
   Co., IBCA 2626,  90-3 BCA    23,064.   Here, the evidence  in the
   record indicates that  GSA continued to negotiate  Young's claims
   years after  they were  submitted.   Accordingly, Young's  claims
   were not barred by an accord and satisfaction.
 
   Liquidated Damages
 
        The  Government assessed $11,100  in liquidated  damages for
   thirty-seven calendar days from  the extended contract completion
   date of August 10 until September 16, 1994.  The Government bears
   the  burden of  proving its  entitlement  to liquidated  damages,
   which are at  issue in GSBCA 14603.  Specifically, the Government
   must  prove  that the  contractor  failed  to meet  the  contract
   completion  date;  then  the  burden  of  proof   shifts  to  the
   contractor  to  show  why  its  failure to  meet  that  date  was
   excusable.     E.g.,   Kemron   Environmental   Services   Corp.,
   ASBCA 51536, 00-1 BCA   30,664 (1999).  In this case it  is clear
   that Young failed to meet the  extended contract completion date,
   August 10.     Accordingly,  we  find  that  the  Government  has
   established  a prima  facie  case  that  liquidated  damages  are
   warranted  beginning August 11.  The  burden then shifts to Young
   to establish a valid defense.  Id. at 151,398-99.  
 
        Acknowledging that it failed to meet the August 10 deadline,
   Young contends that the  Government contributed to the delay  and
   that  Young's delays  were excusable.   As  discussed above,  the
   record  indicates that both  parties were responsible  for delays
   which  extended completion.   The Government was  responsible for
   delays associated  with unforeseen  asbestos and  its impact,  as
   well as with deficient specifications and drawings and changes by
   the court.  Indeed,  the parties stipulated that the  118 days of
   extended  overhead costs  granted by  GSA  included days  between
   December  31,  1993,  and  September  16,  1994  --  which  could
   acknowledge   days  of  Government   delay  during   the  alleged
   liquidated damages period. 
 
 
        Young  was responsible  for delays  associated with  Young's
   out-of-sequence work, Fidelity's failure to man the job and price
   work  properly, the departure of  two of Young's project managers
   before substantial completion, and ordering the wrong size toilet
   partitions.   Both the  Government and Young  are responsible for
   delays  associated  with  the  change  order  process  and  Triad
   Mechanical.     Further,  the   COTR  testified  that   the  work
   encompassed      in     change      order     CE-22      "changed
   constantly."[foot #] 20  
 
        As the Board recognized in Spectrum Leasing Corp. v. General
   Services Administration, GSBCA 7347, et al., 90-3 BCA   22,984:
 
        It  is  well  established  in  the  law  of  Government
        contracts  that where  both parties  contribute to  the
        delay,  neither can recover damages, unless there is in
        the proof  a clear apportionment  of the delay  and the
        expense  attributable  to   each  party.     William F.
        Klingensmith, Inc. v. United States, 731 F.2d 805 (Fed.
        Cir.  1984);  Blinderman  Construction  Co.  v.  United
        States,  695  F.2d 552  (Fed.  Cir.  1982).    We  have
        consistently  applied this  principle where  liquidated
        damages  are assessed for  delay but both  parties have
        contributed to the  delay.  We  will require the  party
        claiming  the  damages  to prove  the  degree  in which
        liability should be apportioned.  Warwick Construction,
        Inc., GSBCA Nos. 5070, 5387, 5388, 5457, 5543, 82-2 BCA
          16,091; Scientific Security Systems of Tacoma,  Inc.,
        GSBCA No.  4476, 79-2  BCA    14,079; Minmar  Builders,
        Inc., GSBCA No. 3430, 72-2 BCA   9559.
 
   90-3 BCA  at 124,197.   In this  case, respondent  has failed  to
   provide us with any basis for the apportionment of responsibility
   between   itself  and   appellant  for   delays  which   extended
   completion.  The evidence as  to what transpired during this time
 
                                                                    
                   ----------- FOOTNOTE BEGINS ---------
 
        [foot #] 20 We recognize that Mr. Wilbanks testified that if
   Fidelity had put more manpower on the job, the project would have
   been completed  in August 1994.   Transcript  at 227.   Given the
   totality of the evidence,  we do not base an award  of liquidated
   damages on this opinion testimony.
 
                   ----------- FOOTNOTE ENDS -----------
 
 
   period    does    not    support   assessment    of    liquidated
   damages.[foot #] 21
 
   Is     Young      Entitled     to     Prompt      Payment     Act
   Interest?[foot #] 22
 
 
        In GSBCA 14437, appellant seeks interest on  $21,157 for the
   delayed  payment of  contract  modification  PC-17,  as  well  as
   interest  on  $29,972   for  the  delayed  payment   of  contract
   modification  PC-18.    Appellant's   Posthearing  Brief  at  64.
   Appellant contends that in September 1997 the contract specialist
   did not  recognize  that  e-mail  messages he  received  were  an
   approval  of  funding  for these  two  modifications.   Appellant
   contends  further that if funding  had been approved the contract
   specialist should have  issued the modifications and  Young would
   have submitted a  formal invoice at that time.   Instead, because
   the contract  specialist did not  realize he had funding,  he did
   not issue the contract modifications until November 26, 1997.
 
        Given this delay in the issuance of the modifications, Young
   was not  able to submit  its invoice for modifications  PC-17 and
   PC-18 until  December 12, 1997.   However, that  invoice did  not
   include GSA's assessment  of liquidated damages and  contained an
   error which was readily recognized and corrected by the COTR.  On
   January 6,  1998,  the  COTR  prepared  a  corrected construction
   progress report stating that Young was entitled to payment in the
   amount of  $44,944 and forwarded  it to the  contract specialist,
   who received  the corrected  invoice on  January 8 but  claims to
   have not paid it for various reasons -- none of which rings true.
   First, the  contract  specialist failed  to  issue  modifications
   because  he  claimed  he  thought  he did  not  have  funding  --
   testimony  which  squarely  contradicts  that  of  GSA's  funding
   personnel.  Then, after Young made an error on its invoice, which
   was corrected  within days by the COTR and forwarded to this same
   contract specialist, the latter said  he could not pay it because
   the invoice was  not the "original" signed by  the contractor, he
   lacked  sufficient information, was  busy with  another contract,
   and was advised  by counsel not to  pay the invoice until  it was
   corrected.     However,  some  six  months  later  this  contract
   specialist saw fit  to pay the exact same  defective invoice, and
   Young received payment on June 1, 1998.
 
                                                                    
                   ----------- FOOTNOTE BEGINS ---------
 
        [foot #] 21 Moreover, any award of liquidated damages  would
   have been  decreased due  to the  additional work  the Government
   requested after August 10 which Young performed.
 
        [foot #] 22 Appellant  filed a  motion  for partial  summary
   relief for Prompt  Payment Act interest,  and respondent filed  a
   motion to dismiss  appellant's motion.  The  Board deferred these
   motions  pending further development  of the record.   Based upon
   the record as a whole, respondent's motion to dismiss is denied.
 
                   ----------- FOOTNOTE ENDS -----------
 
 
 
        The Prompt Payment Act states  that the Government must make
   invoice  payments by  the  thirtieth  day  after  the  designated
   billing office  receives a  proper invoice  from the  contractor.
   Further, the Government must pay an interest penalty when payment
   is not made by this date.  31 U.S.C.    3901-3906 (1994).  
 
        Although  the  contract  specialist  through his  own  error
   prevented  appellant from submitting a proper invoice by delaying
   issuance of the modification,  statute does not permit the  award
   of interest based upon conduct which precedes the submission of a
   proper invoice.   As our  appellate authority  recognized in  FDL
   Technologies,  Inc. v. United States,  967 F.2d 1578,  1581 (Fed.
   Cir.  1992):   "It is  well established  that interest  cannot be
   recovered  unless the  award  of  interest  was  affirmative  and
   separately contemplated by Congress . . . and that in the absence
   of a specific provision by contract or statute or express consent
   . . . by  Congress, interest does not run on  a claim against the
   United States."    (Citations  omitted.)    The  court continued:
   "Thus in interpreting the Prompt  Payment Act, this court may not
   enlarge the waiver of sovereign immunity beyond what the language
   of the Act requires."  Although we find the contract specialist's
   delay  in issuing the  modifications for some  two months   to be
   inexcusable,  we cannot conclude  that his  dilatoriness warrants
   the payment of interest.  See Lance Colburn, AGBCA 94-117-1, 95-2
   BCA    27,726  ("Appellant is  claiming interest  for the  period
   before  the invoice  was submitted for  payment.   Therefore, the
   [Prompt Payment Act] is not applicable.").
 
        However,  turning  to   appellant's  additional  claim   for
   interest  from the  time  the corrected  invoice was  received on
   January 8  until payment  was made  on  June 1, we  conclude that
   interest  is  warranted  under  the  Prompt  Payment  Act.    The
   Government  states that  interest  cannot  be  paid  because  the
   contractor  never submitted  a  proper  invoice  --  because  the
   contractor submitted an erroneous invoice and the Government, not
   the contractor,  corrected it.   Respondent's Reply Brief  at 10.
   This  argument  overlooks  the reality  that  GSA  never notified
   appellant  that it  had submitted  a defective  invoice so  as to
   afford  appellant  the  opportunity  to  correct  it  and that  a
   Government  official,  the   COTR,  accepted  responsibility  for
   correcting the invoice  and authorized payment of this invoice as
   corrected by him.   The invoice could  have been paid as  of that
   time,  and  indeed  was  paid   months  later  with  no   further
   correction.  
 
        This  is not  a  case  where appellant  failed  to meet  the
   regulatory  requirements for a  proper invoice, i.e.,  an invoice
   containing or accompanied by the substantiating documentation the
   head  of the  appropriate agency  may  require by  regulation and
   contract.    31 U.S.C.    3901(a)(3);  Consolidated Construction,
   Inc.,  GSBCA 8871, 88-2 BCA   20,811, at 127,084, reconsideration
   denied  (Nov. 30, 1988).   Rather, this  was a  corrected invoice
   which  had  already  been  improperly  delayed  by  the  contract
   specialist's failure  to acknowledge that funding  was available.
   Moreover, the   Prompt Payment Act expressly  requires the agency
    to return any  . . . payment  request which is defective  to the
   contractor   within  7  days  after  receipt,  with  a  statement
   identifying  the defect.    31  U.S.C.    3903(b)(2).   Here, the
   contracting officer never advised appellant of the  defect in its
   invoice  or afforded it an opportunity to correct the defect.  As
   such,  the agency  may not  refuse to  pay the invoice  in timely
   fashion and avoid paying interest.
 
 
        Where, as  here, the deficiency  in the invoice is  known to
   the Government, and corrected by the Government without notifying
   the contractor, the Government should not be permitted  to thwart
   the intention of the statute  by failing to advise the contractor
   of the  deficiency and  delaying payment.   We grant  appellant's
   claim for Prompt Payment Act interest as follows.  Interest shall
   run beginning thirty days after the contract specialist's receipt
   of the corrected invoice until that invoice was paid   i.e., from
   February 8 until June 1, 1998.
 
                                Decision
 
        GSBCA 14437 is GRANTED  IN PART.  Neither appellant  nor its
   subcontractor  is entitled to any  additional days of home office
   or  field office  overhead costs.   Appellant  is awarded  Prompt
   Payment   Act  interest   from   February 8  to   June 1,   1998.
   GSBCA 14603  is  GRANTED.     The  Government  may   not  recover
   liquidated damages. 
   ________________________________
 
                                      MARY ELLEN COSTER WILLIAMS
                                      Board Judge
 
   We concur:
 
 
 
   _______________________________
   _______________________________
   STEPHEN M. DANIELS                 MARTHA H. DeGRAFF
   Board Judge                             Board  Judge