Hedgecock Electric, Inc.
Docket: ASBCA 56307
Decision date: 2012-06-20

ARMED SERVICES BOARD OF CONTRACT APPEALS 
Appeal of--
Hedgecock Electric, Inc. 
Under Contract No. N69272-06-C-0003 
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ASBCA No. 56307 
APPEARANCES FOR THE APPELLANT: Michael H. Payne, Esq. 
Joseph A. Hackenbracht, Esq. 
Cohen Seglias Pallas Greenhall & 
Furman, PC 
Philadelphia, P A 
APPEARANCES FOR THE GOVERNMENT: Ronald J. Borro, Esq. 
Navy Chief Trial Attorney 
Stephen D.Tobin, Esq. 
Trial Attorney 
OPINION BY ADMINISTRATIVE JUDGE DICKINSON 
This appeal arises from a contract awarded by the Navy to Hedgecock Electric, 
Inc. ("HECI") for the construction and repair of airfield taxiways and edgelights at the 
Naval Air Station, Jacksonville, Florida.HECI seeks an extension of the contract 
. performance period and compensatory damages consisting of field office overhead plus 
mark-ups due to alleged government-caused delays as well as the resultant remission of 
liquidated damages assessed against it. The Navy ("Navy" or "government") disagrees 
with HECl's delay analysis and argues that some or all of HECI' s claims are barred by 
accord and satisfaction. We have jurisdiction under the Contract Disputes Act of 1978 
(CDA), 41 U.S.C. §§ 7101-7109. Only entitlement is before us. 
FINDINGS OF FACT 
i. On 12 December 2005 the Navy issued a solicitation for the construction and 
repair of airfield taxiways and edgelights at the Naval Air Station, Jacksonville, Florida 
(supp. R4, tab 31). The solicitation contemplated a performance p~riod of380 days 
(supp. R4, tab 32); the specifications provided in several places that the work was to be 
performed Monday through Friday, 0600 to l800 and that Saturdays, Sundays and all 
federal holidays were to be non-work days, unless otherwise specifically authorized as 
provided in the specifications (R4, tab 2, § 01140,,-r 1.2.2, § 01321N, , 1.6.2.1). 
2. HECl's proposal offered to complete the contract within 290 days "to help get 
the job" (tr. 1/52, 68) .. Even though HECI acknowledges that it knew the specificati<?ns 

said work was restricted to five days a week, except where otherwise authorized, it based 
its proposal on a seven-day work week that included Saturdays, Sundays and federal 
holidays as work days (tr. i/53-54, 62-63, 68-69, 76-77,223-:-24). HECl's assumption as 
to the number of days in its work week was not apparent on the face of its proposal and 
the record does not show that HECI gave notice to the government by any other means 
prior to contract award that its proposal was based upon working weekends and holidays 
(supp. R4, tab 32). 
3. On 20 March 2006 the Navy awarded firm, fixed-price Contract 
No. N69272-06-C-0003 to'HECI in the amount of$4,197,000.00 (R4, tab 1A). The 
performance period of the contract as awarded was 290 days and the contract further 
specified that performance was to commence within 15 calendar days after the contractor 
received the notice to proceed (R4, tab 1A at 1-5, 8 (FAR 52.211-10)). The Navy's 
20 March 2006 award letter to HECI advised that the letter "constitutes your notice to 
proceed" (R4, tab 4), making 4 April 2006 the latest date on which contract performance 
was to commence and 1.9 January 2007 the contract completion date (R4, tabs 3, 12). 
4. The contract contained FAR 52.211-12, LIQUIDATED DAMAGES­
CONSTRUCTION (SEP 2000), in full text which provided that: 
(a) If the Contractor fails to complete the work within the 
time specified in the contract, the Contractor shall pay 
liquidated damages to the Government in the amount of 
$1700 for each calendar day of delay until the work is 
completed or accepted. 
(R4, tab 1A at 8) The contract also incorporated the following clauses by reference: 
FAR 52.211-13, TIME EXTENSIONS (SEP 2000); FAR 52.233-1, DISPUTES (JUL 2002); 
FAR 52.236-2, DIFFERING SITE CONDITIONS (APR 1984); FAR 52.236-15, SCHEDULES 
FOR CONSTRUCTION CONTRACTS (APR 1984 ); FAR 52.242-14, SUSPENSION OF WORK 
(APR 1984); FAR ~2.243-4, CHANGES (AUG 19'87); and FAR 52.249-10, DEFAULT 
(FIXED-PRICE CONSTRUCTION) (APR 1984) which provided in pertinent part: 
(l?)The Contractor's right to proceed shall not be 
terminated nor the Contractor charged with damages under 
this clause, if-­
(1) The delay in completing the work arises from 
unforeseeable causes beyond the control and without the fault 
or negligence of the Contractor .... 
(2) The Contractor, within 10 days from the beginning 
of any delay (unless extended by the Contracting Officer), 
2 

notifies the Contracting Officer in writing of the causes of 
delay. The Contracting Officer shall ascertain the facts and 
the extent of delay. If, in the judgment of the Contracting 
Officer, the findings of fact warrant such action, the time for 
completing the work shall be extended. The findings of the 
Contracting Officer shall be final and conclusive on the 
parties, but subject to appeal under the Disputes clause. 
(R4, tab.lA at 6-8) 
5. The contract specifications contained the following provisions pertinent to the 
issues before us: 
SECTION 01110 
SUIVIMARY OF WORK 
1.3.1 Notification Prior to Excavation 
Notify the Contracting Officer at least 15 days prior to' 
starting excavation work. 
SECTION 01140 
WORK RESTRICTIONS 
1.1 SPECIAL SCHEDULING REQUIREMENTS 
a. Have materials, equipment, and personnel required 
to perform the work at the site prior to the 
commencement of the work. Specific items of work to 
which this requirement applies include: 
b. The Airfield will remain in operation quring the 
entire construction period. The Contractor shall 
. conduct his operations so as to cause the least possible 
interference with normal operations of the activity. 
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c. Do runway 14-32 work followed by paving work.[I] 
d. Do the runway 32 threshold lights and work within 
200 feet north of runway 27 on holidays, weekends or 
periods 'of low airfield use. [2] . 
g. The work under this contract requires special 
attention to the scheduling and conduct of the work in 
connection with existing operations. Identify on the 
construction schedule each factor which constitutes a 
potential interruption to operations. 
The following conditions apply: 
(1) Closure of taxi-lanes. 
(2) Closure of runways. 
1.2.2 Working Hours 
Regular working hours shall consist of an 8 Y2 hour period 
0600 - 1800, Monday through Friday, excluding 
Government holidays except as noted in this specification. 
All personnel shall take the Airfield YehicleOperators 
Indoctrination Course (AYOIC) it canbe scheduled by the 
ROICC office. 
1 The solicitation was subsequently amended to permit HECI to choose which phase to 
perform first but still required that, whichever phase HECI chose to perform first, 
the work in the second phase was not to proceed until the work in the first phase 
was complete (R4, tab 1 at 4, supp. R4, tab 31). HECI elected to perform the 
Runway 14-32 electrical lighting work as the first phase and its schedules showed 
HECI performing the electrical lighting work first and, upon completion of the 
lighting work, performing the paving work (exs. A-IS, G-26, tab 9). 
2 Work outside regular contractual working hours required special arrangements which 
were provided for in § 01140, ,-r 1.2.3 (quoted below) (see also tr. 2/161-66). 
4 


1.2.3 Work Outside Regular Hours 
Work outside regular.working hours requires Contracting. 
Officer approval. Make application 15 calendar days prior . 
to such work to allow arrangements to be made by the 
Government for inspecting the work in progress. During 
periods of darkness, the different parts of the work shall 
be lighted in a maImer approved by the Contracting 
Officer. 
1.2.4 Utility Cutovers and Interruptions 
a. Make utility cutovers and interruptions after normal 
working hours or on Saturdays, Sundays, and 
Government holidays. Conform to procedures 
required in the paragraph "Work Outside Regular 
Hours." 
b. Ensure that new utility lines are complete, except 
for the connection, before interrupting existil'l:g service. 
c. Interruption to water, sanitary sewer, storm sewer, 
telephone service, electric service, heating, fire alarm, 
compressed air, and airfield lighting shall be 
considered utility cutovers pursuant to the paragraph 
entitled "Work Outside Regular Hours." 
1.3 SECURITY REQUIREMENTS 
Contract Clause "FAR 52.204-2, Security Requirements 
and Alternate II," "FAC 5252.236-~30J, Special Working 
Conditions and Entry to Work Area," and the following 
apply: 
Flight line badges are required for all employees working 
on the airfield. 
5 


SECTION 01150 
SPECIAL PROJECT PROCEDURES 
3.1.1 Work in Proximity to Runways 
Accomplish all construction work on the runways, 
taxiways, and parking aprons and in the end zones of the 
runways and 75 feet to each side of the runways and 
taxiways with extreme care regarqing the operation of 
aircraft. Cooperate closely, and coordinate with the 
Operations Officer and the Contracting Officer. Park 
equipment in an area designated by the C'ontracting , 
Officer. Under no circumstances shall equipment be 
parked overnight or for any extended period of time in the 
proximity of the runways or taxiways. Leave no material 
in areas where extreme care is to be taken regarding the 
operation of aircraft. 
3.1.2 Schedule of World Aircraft Operating Schedules 
Schedule work to conform to aircraft operating schedules. 
The Government will exert every effort to schedule 
aircraft operations so as to permit the maximum amount of 
time for the Contractor's activities; however, in the event 
of emergency, intense operational demands, adverse wind 
conditions, and other such unforeseen difficulties, the 
Contractor shall discontinue operations at the specified 
locations in the aircraft operational area for the safety of 
the Contract9r and military personnel and Government 
property .... 
3.1.5 Excavation 
Open only those trenches for which material is on hand 
and ready for placing therein. As soon as possible after 
the material has been placed a,vd work approved, backfill 
and compact the trenches as specified. 
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3.1.8 Foreign Object Damage (FOD) 
Aircraft and aircraft engines are subject to FOD from 
debris and waste material lying on airfield pavements. 
Remove all such material that may appear on operational 
aircraft pavements due to the Contractor's operations. 
The Contractor shall install a temporary barricade at the 
Contractor's expense to control the spread of FOD 
potential debris. The barricade shall consist of a 6' fence 
covered with a 6' fabric designed to stop the spread of 
debris.... The fence shall be located around the whole 
paving proj ect area .... 
J.3 RUNWAY CLOSURE MARKING 
Runway 14-32 will need to be closed while working 
performing the edge light work .... 
SECTION 01320N 
CONSTRUCTION PROGRESS DOCUMENTATION 
1.2 CONSTRUCTION SCHEDULE 
Prior to the start of work, prepare and submit to the 
Contracting Officer for acceptance a construction . 
schedule in the form of a Critical Path Method (CPM), 
Network Schedule in accordance with the term~ in 
Contract Clause "FAR 52.236-15, Schedules for 
Construction Contracts," except as modified in this 
contract. 
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1.3 NETWORK ANALYSIS SCHEDULE (NAS) 
The Contractor shall use the critical path method (CPM) 
to schedule and control construction activities ~ . .. The 
schedule shall identify as a minimum:. 
a. Construction time for all major systems and 
components; 
b. Each activity shall be assigned its appropriate 
Responsibility Code; 
c. Each activity shall be assigned its appropriate Phase 
Code; 
d. Major submittals and submittal processing time; 
and 
1.3.1 CPM Submittals and Procedures 
... The network analysis system shall be kept current, with 
changes made to reflect the actual progress and status of 
the construction. 
1.4 UPDATED SCHEDULES 
Update the construction schedule and equipment delivery 
schedule at monthly intervals or when the schedule has 
been revised. Reflect any .changes Qccurring since. th.e last 
update .... 
SECTION 01321N 
NETWORK ANALYSIS SCHEDULES (NAS) 
1.1 DESCRIPTION 
The network analysis· system shall consist of the network 
analysis schedule (diagram) and associated reports. The 
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scheduling of all procurement and construction shall be 
the responsibility of the Contractor. All construction 
increments will be interrelated on a single schedule that 
represents the eritire project duration from Contr~ct Award 
to the Contract Completion Date. Schedule updates will 
build upon each other and will include construction 
increments as they are detailed, submitted and accepted. 
Submission of progress and revision data will be used to 
measure work progress, aid in the evaluation for requests 
for time extensions, and to provide the basis ofall . 
progress payments. The Critical Path Method (CPM) of 
network calculation shall be used to generate the project 
schedule and will utilize the Precedence Diagram Method 
. (PDM) to satisfy both time and cost applications. All 
progress payment amounts will be derived from and tied 
to the cost-loaded schedule activities. 
1.3.2 Acceptance 
a. When the Network Analysis Schedule is submitted 
and accepted by the Contracting Officer it will be 
considered the "Baseline Network Analysis 
Schedule".[3] The Network Analysis Schedule shall be 
updated at least monthly. When the Construction 
Network Analysis Schedule is submitted and accepted 
by the Contracting Officer, it will then be considered 
the "Baseline Network Analysis Schedule". The 
Baseline Network Analysis Schedule will then be used 
by the Contractor for planning, organizing, and 
directing the work; reporting progress; and requesting 
payment for work accomplished. The schedule will be 
updated monthly by the Contractor and submitted 
monthly with the progress pay request to reflect the 
current status of the work. Submittal and acceptance 
of the Baseline Network Analysis Schedule for 
3 HECl's baseline schedule has a data date of20 March 2006, the date of contract award 
(exs. A-I5, G-26 at tab 9). The record does not indicate the date on which the 
baseline schedule was submitted to the government, but it is clear from the record 
that the schedule was approved and was used by the government to assess HECl's 
progress. 
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Baseline Network Analysis Schedule and accurate 
updated schedules accompanying the pay requests are 
both conditions precedent to processing pay 
requests .... 
1.6.1 Diagrams 
... The diagram shall clearly show the activities of the 
critical path and must be red in color. Once an activity 
exists on the schedule it may not be deleted or renamed, 
and must remain in the logic. 
1.6.2.1 
e. . .. Contractor activities will be driven by calendars 
that reflect Saturdays, Sundays and all Federal 
Holidays as non-work days. 
1.8 CONTRACT MODIFICATION 
When a contract modification to the work is required, 
submit proposed revisions to the network with a fragnet 
and a cost proposal for each proposed change. All 
modifications shall be incorporated into the network 
analysis system as separate identifiable activities broken 
down and inserted appropriately on the first update 
following issuance of a directive to proceed with the 
change.. .. Unless the Contracting Officer requests 
otherwise, only conformed contract modification fragnets 
will be added into the subsequent monthly updates. All 
revisions to the current baseline schedule activities that 
are necessary to further refine the schedule so that the 
changed work activities can be logically tied to the 
schedule shall be made .... 
1.8.1 Time Impact Analysis 
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The Time Impact Analysis method shall be used by the 
Contracting Officer and Contractor in determining if a time 
extension or reduction to the contract milestone date(s) is 
justified. The Contractor shall provide a Time Impact 
Analysis to the Contracting Officer for any proposed contract 
change or as support for a ... Claim or Request for Equitable 
Adjustment by the Contractor. Submit the Time Impact 
Analysis schedule, reports, etc. on disk and as a 
printed/plotted hardcopy. 
a. The Contractor shall submit aTinle Impact 
Analysis (TIA) illustrating the influence of each 
change or delay on the Contract Completion Date or 
milestones. Unless the Contracting Officer requests an 
interim update to the schedule, the current monthly 
updated schedule accepted by the Government shall be 
used to display the impacts of the change. Unless 
requested by the Contracting Officer, no other 
conformed changes will be incorporated into the 
schedule being used to justify the change impact. 
b. Each TIA shall include a Fragmentary Network 
(fragnet) demonstrating how the Contractor proposes 
to incorporate the impact into the project schedule. A 
fragnet is defined as the sequence of new activities 
and/or activity revisions, logic relationships and 
resource changes that are proposed to be added to the 
existing schedule to demonstrate the influence of 
impacts to the schedule. The fragnet shall identify the 
predecessors to the new activities and demonstrate the 
impacts to successor activities. The Contractor shall 
provide a hardcopy printout ofthefragnet activities 
-and relationships being added and also insert the 
fragnet into the most current, accepted Monthly 
Network Analysis Update, run the schedule 
calculations and submit the impacted schedule with the 
proposal, claim, etc. Include a narrative report 
describing the effects of new activities and 
relationships to interim and contract completion dates, 
with each TIA. Submit time extension requests with a 
Time Impact Ahalysis and three hardcopies of the 
fragnet (in a graphic format), impacted schedule (~ith 
11 


fragnet loaded), Total Float Report, Narrative Report 
and Log Report. 
(R4, tab 2) 
6. The contract work consisted of electrical lighting work and paving work and 
was to be performed in two main areas. The electrical lighting work was in the Runway 
14-32 area indicated by a large oval in the upper right of the first .contract drawing and 
. the paving work was in a different area indicated in the drawing by a smaller oval in the 
lower middle of the first contract drawing. (Exs. A-I, G-26, tabs 6, 9; tr. 1/51, 107, 
2/52-54, 71, 97) The work was also phased, meaning the paving work was not to begin 
until after the electrical lighting work was complete. The contract contained a diagram 
entitled "Haul Route, Laydown & Trailer Site" in which dark, dotted lines denoted haul 
routes to be taken by HECI while working in the two main worksite areas. The two gates 
identified in the contract drawings through which HECI could gain access to the base and 
its work site were Gate 106 (identified as either the commercial gate or the Security Gate) 
and Gate 101 (identified as either the Flightline Access Point or the Primary Access 
Gate). (Exs. A-I, A-7; tr. 1/91-92,2/54-58) 
7. A preconstruction conference was held on 19 April 2006. HECI was 
represented at the meeting by its president, project manager and project superintendant, 
as well as a representative of HECI' s paving subcontractor, Head, Inc. ("Head"). 
L T Ross was identified as the government's Construction Manager and HECl's contact in 
the field. (Supp. R4, tab 35; ex. A-2; tr. 1/51, 111) The document memorializing the 
items discussed included liquidated damages and: . 
2. Scope, Value and Dates: 
f. Regular work hours in the contract are stated as 
6:00 am to 6:00 pm Monday through Friday, 
excluding Federal holidays. 
6. Other 
a. Excavation Notice and Permit 
(Supp. R4, tab 35 at 2) There is no evidence that any HECI representative advised the 
government at this meeting that its proposal was based on work days to include' weekends 
and holidays. With respect to passes and badges, the document stated: 
12 

7. 	 Matters Concerning Job Site Conditions: 
a. 	 Personnel and Vehicle Passes: All contractor 
personnel (all tiers) are required to wear a 
NASJAX issued badge .... 
(Supp. R4, tab 35 at 3) HECl's project superintendant testified that the Navy's airfield 
manager stated at this meeting that HECI needed to take the "airfield driving course" 
(tr. 1/112). 
8. The parties have not directed us to, nor have we found, any identification or 
notification in the contract or its specifications and drawings of the Corrlbat Aircraft 
Loading Area ("CALA") nor any special restrictions within the contractual work area . 
associated with the CALA, other than generally stated aircraft operations and a 
possibility of "unforese.en difficulties" (finding 5, § 01140, ~ 1.1.b and g, § 01150, 
~~ 3.1.1, 3.1.2). There is also no mention of the CALA or restrictions on work in the area 
in the minutes of the preconstruction meeting (supp. R4, tab 35). At some unspecified 
time, but no later than 10 August 2006 (see finding 14), HECI was advised that it was not 
permitted to work within a 1,250 foot radius of the CALA when it was in use for loading 
munitions onto aircraft, referred to as being "hot" (ex. A-7; tr. 1/108, 120-21, 145-46). A 
red flag was raised near the CALA area when an aircraft was brought onto the CALA to 
be loaded with munitions. 
And to verify whether it's actually hot or not because they 
give you hours, they give you a range of times they were 
going to be there ... -- the only way it could be determined 
whether it's actually hot or not ... was to call thetower .... 
And that's the purpose of them having radios in contact with 
the tower, to verify whether it's hot or not. 
(Tr. 2/51-52, 59-60; see also ex. G-3 at 6-7; gov't br. at 13-14,33-34) The laydown, or 
storage, area assigned to HECI by the Navy was within 400 feet of the CALA and HECI 
argues that, when the CALA was "hot," it could not access its materials or proceed with 
its work (exs. A-7, G-3 at 6-7; tr. 1/108, 120-23). The government argues, although not 
until its 17 December 2007 final decision, eight months after contract completion and 
without citation to any documentation for support, that HECl's storage area was outside 
the airfield fence and access to it was, therefore, not restricted (R4, tab 1 at 3). We find 
that the weight ofthe contemporaneous evidence is to the contrary and shows that HECI 
was restricted from access to both the work site and its storage area when the CALA was' 
"hot" until the governmenfgave it an alternate storage area (findings 17, 18). The 
government also claims that there were times the red flag was up and, after contacting the 
tower, HECI was permittedto work in the CALA area, particularly for the purpose of 
13 


material delivery to their storage site; however, the government was unable to identify 
specific dates when this allegedly occurred (tr. 2/59). 
9., HECI employees received IDs authorizing entry onto the Naval Air Station on 
14 June 2006. Two weeks later, on 28 June 2006, HECI mobilized to the jobsite and its 
employees took a driving course to get flight line security badges, known as "blue ramp 
stamps. ,,4 The blue ramp stamps allowed HECI employees access to Gate 101 (the' 
commercial gate or Security Gate) and the original storage and laydown area assigned by 
the government. However, on 29 June 2006 when they attempted to enter the Runway 
14-32 jobsite to get radios from airfield management for the purpose of maintaining 
contact with the tower when working on the active runway, they were denied access and 
told they also needed "red ramp stamps." (~4, tabs 18,20; tr. 1/93, 109, 112-14,2/57; 
ex. G-3 at 3-4) With respect to flight line badges, the contract specifications stated that: 
Flight line badges are required for all employees working on 
the airfield. 
(Finding 5, § 01140, ~ 1.3) There was no indication ofa requirement for more than one 
badge or ID per employee. Flight line badges or "blue ramp stamps" allowed general 
access to the airfield and driving on the ramp areas; but did not allow the operation of 
vehicles "around active runways, taxiways, or other aircraft operational areas." "Red 
ramp stamps," which allowed the operation of vehicles "around active runways, 
taxiways, or other aircraft operational areas" were only issued to individuals who 
completed the Navy's one-day Airfield Vehicle Operators Indoctrination Course 
(AVOl C). (R4, tab 1 at 3; tr. 1/150) The A VOIC was required by the contract 
specifications: 
All personnel shall take the Airfield Vehicle Operators 
Indoctrination course (A VOIC)[. I]t can be scheduled by the 
ROICC office. 
(Finding 5, § 01140, ~ 1.2.2) HECI understood that this ,meant its employees had to take 
the course but it did not realize that the AVOIC course was in addition to the flight line 
driving course they had already taken to get their blue ramp stamps (tr. 1/72-74, 146-50). 
HECl's employees completed the A VOIC on 10 July 2006 and on the same day were 
"issued a license, which is colored red and is called a 'JAX Airfield Veh. Operator Lic.' 
(con1monly referred to as the 'Red Stamp')" (exs. A-3, G-4; tr. 1/60-61, 71). 
10. The contract specifications provided that HECI was to notify the CO "at least 
15 days prior to starting excavation work" (finding 5, § 01110, ~ 1.3.1). The need for the 
excavation notice and digging permit were also covered in the preconstruction conference 
4 The flight line badge is blue (gov't br. at 9; tr. 1/148-49). 
14 

(finding 7). There could be "[a]bsolutely no digging until they have a permit approval, 
not even a shovel,. not even a teaspoon" (tr. 2/35). 
11. On 29 June 2006, the day after HECI mobilized to the jobsite, it submitted a 
request for a digging permit for 4,000 feet of the north 'end of Runway 14-32 (ex. A-4; , 
R4, tab 1 at 2; tr. 1/114-15). The next day HECI notified the government that it planned 
to begin onsite construction on 10 July 2006 at 0730 which included excavating and 
installing duct bank on Runway 14-32 (supp. R4, tab 37). On 10 July 2006 the Navy 
timely5 notified HECI that its request for a digging permit was denied because the Navy 
had discovered a previously undisclosed Installation Restoration (lR) site6 within HECI's 
work area (R4, tab 3, Mod. No. POOOOl, tabs 14,20). A revised digging permit was 
submitted by HECI on 18 July 2006 that proposed no digging in the IR area, which was 
the first 1000 feet of the runway, until HECI employees could receive HAZMAT training 
(exs. A-5, G-3 at 4; R4, tab 1 at 2; tr. 1/115-l7, 171-74). The revised digging permit was 
approved by the government on 19 July 2006 (exs. A-4, -5). We find thatthe previously 
undisclosed IR site caused a nine-day nonconcurrent compensable delay (10-18 July) to 
the critical path for which the government was responsible. 
12. According to HECl's baseline schedule critical path, in the period from 
19-25 July 2006, HECI planned to be working on Activity 1014, Install %" RGS Conduit, 
through 22 July 2006 followed by Activity 1022, Install New Runway Lights, through 
11 August 2006 (exs. A~15, G-26 at tab 9). The contra~t specifications provided that 
Runway 14-32 was to be closed during edge light work (finding 5, § 01150, '3.3) 
however, HECl's daily reports show that after approval ofHECl's revised digging permit 
on 19 July 2006, the Navy did not close the runway until 26 July 2006. HECl's daily 
reports show that in the period from 19-25 July 2006 HECI had people and various 
equipment on site and was ready to start work. On 25 July 2006 a QC meeting took place 
at which HECI received,notice that Runway 14-32 would be closed seven days a week 
for the next 90 days and that it was authorized to start work at 7:00 a.m. the next 
morning. The daily report for 26 July shows that HECI started work and was excavating 
in various locations to locate the existing conduit. (Ex. A-23, ##017-024; tr. 1/93) We 
find that HECI experienced seven days of ~ompensable nonconcurrent delay 
(19-25 July)7 to its work on the critical path due to the.government's unexplained failure 
to make Runway 14-32 available after the amended digging permit was approved on 
19 July 2012. 
5 (Finding 5, § 01110" 1.3.1) 
6 An area where possible contamination may have occurred in the past (gov't br. at 10; 
tr. 1/115-16). 
7 We include the weekend dates of 22-23 July because, had the government closed the 
runway and authorized HECI to. start work when it approved the digging permit on 
19 July (finding 11), it presumably would also have included the same 
authorization for work 7 days a week. 
15 


13. The IR HAZMA T training took place from 31 July-4 August 2006 (R4, 
tab 21). We find that the training caused HECI to experience five compensable calendar 
days (31 July-4 August) of government-caused nonconcurrent delay to work on the 
critical path and that it could have recommenced work on 5 August 2006 as weekend 
work was authorized during this period (finding 12). HECI sought a contract 
modification to compensate it for its costs associated with the unforeseen need to attend 
the course. The instructions for the cost proposal fonn directed HECI to "include a 
request for an extension of time, in calendar days, only if overall completion of contract 
is impacted by the proposed modification" and HECI did not include an estimated time 
extension and justification in its proposal. The weight of the evidence supports the 
testimony ofHECl's president that the CO told-him that time extensions would be 
negotiated at the end of the contract (tr. 1/94-96, 2/12-14; 17; see also finding 25). The 
resulting bilateral Mod. No. POOOO 1, dated 13 September 2006, compensated HECI in its 
full proposed amount of$II,811.79 for the cost of its employees' attendance at the 
training and, as none was requested, did not include an extension of time in the 
perfonnance period. HECl's cost proposal included field overhead costs~ (Supp. R4, 
tab 39) The modification also contained the following clause: 
. Acceptance of this modification by the contractor constitutes 
an accord and satisfaction and represents payment in full for 
both time and money and for any and all costs, impact effect, 
and for delays and disruptions arising out of, or incidental to, 
the work as herein revised. 
(R4, tab 3; supp. R4, tab 39; tr. 1/79-98, 2/7-8, 11-15) HECI signed the modification 
without noting any reservations (R4~ tab 3 (Mod. No. POOOO 1); tr. 1/94-96). 
14. HECI began excavation on the IR portion of the contract work on Monday, 
7 August 2006 (ex. G-3 at 5). On Thursday, 10 August 2006, at 11:00 a.m., the Navy 
directed HECI to stop work on Runway 14-32 within 1,250 feet of the CALA because it 
was in use for loading aircraft with munitions, or "hot." The CALA remained "hot" until 
8 p.m. that day. (Exs. A-23 at #041, G-3 at 6; tr. 1/154-55) 
15. HECl's project schedules show that the critical path of the work being 
perfonned in August and September 2006 was through various activities of the electrical 
lighting work that were being performed concurrently (exs. A-9, G-26 at tab 16). None 
of the paving work under the contract started until late November 2006 (finding 21 ). 
-	 16. From 1-5 September 2006 HECI completed the replacement of the 
threshold for Runway 14-32. On Saturday, 2 September 2006, it was discovered that a 
necessary conduit duct running under Runways 27 and 32 had collapsed and would have 
to be re-bored. HECl's project narrative for September 2006 states that HECI was 
16 


waiting for direction from the government as to how to proceed with cable under 
Runway 27. (Ex~ G-8; tr. 1/89-90, 141-44). 
17. On 6 September 2006 HECI reported that the CALA was "hot" and it did not 
have access to the runway (see finding 18). On 7 September 2006 Ru'sty Dahms notified 
HECI that he had been assigned to the contract' as HEel's field contact filling in for 
LT Ross while he was away for training for approximately three months (supp. R4, 
tab 40; tr. 2/67-68). He also advised HECI that: 
Upon visiting the site yesterday, I was informed by your field 
personnel that they were being delayed due to not being able 
to access their designated site storage area. I have arranged 
for them to have another site storage area to utilize to stage 
the material/equipment they need to utilize to avoid delaying 
the work. They may still maintain their existing storage so 
they do not have to do a significant relocation. The ET, 
J ames Douglas is coordinating the above with them this date. 
If the above additional storage area does not resolve the 
problem it will become necessary to relocate the primary 
storage area. I also arranged for them to get site access from 
the south side which should allow them to proceed without 
impact up to the point the [ sic] must do the remaining work in 
the hot pit area explosive arc zone. In the meantime I will 
work on possible solutions to avoid/minimize impacts in that 
area once I can determine where we are in the schedule. 
(Supp. R4, tab 40; tr. 2/68) The response from HECl's Blum responded: 
Thank you for your assistance with avoiding down time on 
the run way. Having just returned to work, I will be getting 
with our superintendent to get an update status and check on 
any concerns. 
(Jd.) The Navy imnlediately designated an alternate storage site which required HEel's 
employees to use a different gate, Gate 120, to access the alternate storage site (also 
referred to in the record as the Secondary Laydown Area) (exs. A-I, A-7,G-3.at 7-8; 
tr. 2/53, 68-70). The weight of the evidence shows that HECI did not have access to its 
original storage area to move its materials and tools to the alternate storage site except at 
night on 11-13 September 2006 (R4, tab 26 at 4; ex. G-8; tr. 1/130; accord, tr. 2/70). At 
a quality control meeting held on 11 September 2006, HECI advised it had been in a stop 
work condition because the CALA had been "hot" from after Labor Day (Monday, 
4 September 2006) until that date (see finding 18). HECI acknowledged that the CALA . 
had actually only been "hot" for half days during that period, however, even "[i]fthe 
17 


CALA was hot for a half a day; it prevented [HECI] from working because of the 
requirement to close all excavations daily ... it could not open and close an· area in the 
same half day" (ex. G-3 at 8-9; tr. 1/129). 
18. We find that HECI experienced a total of22 compensable days of 
government-caused nonconcurrent delay in performing work on the critical path due to 
the CALA b~ing "hot" (10-11,14-15,17-18,21,30 August 2006 and 5-16,18, 
21 September). (Exs. A-23 at ## 046, 048, 052, 067-68, 070-81, 0083, A-25; 
tr. 1/123-34, 154-65, 179-81, 2/122-23) 
19. On 3 October 2006 Dahms requested the following information frotp. HECI: 
The current schedule identifies the contract is -63 
calendar days behind schedule. At present, I have no request 
for time extension or 4ocumentation as to any Government 
caused delays. We will need to address wqat has/is causing 
the delays and who is responsible so we can make an effort to 
correct the situation. Any requests for time extensions or 
Government caused delays needs [sic] include a fragnet that 
shows the impact to the critical path. 
(Supp. R4, tab 41) 
20. By letter dated 18 September 2006, HECl's paving subcontractor, Head, 
advised that it was behind schedule on an unrelated project in Norfolk, Virginia, due to a 
hurricane and requested that its work for HECI, originally scheduled to start 
20 September 2006, be postponed until 30 October 2006 (ex. G-5). When Head arrived 
on site on 30 October 2006 the electrical lighting work was still underway and the 
contract phasing req1)ired it to be completed before paving began (findings 5, 6, 21). 
HECI has not claimed that Head's delay in arriving at the jobsite caused any delay to the 
overall completion of the project (ex. G-3 at 12). 
21. HECI submitted "two-week look-ahead's" and th~rty day look ahead 
schedules to the Navy (tr. 2/47,49; see, e.g., ex. G-l). In one of these reports HECI 
notified the Navy that it planned to install the Foreign Object Damage (FOD) fenceS 
adjacent to the runway on 30 October 2006 (tr. 2/71-72). HECI claims it was delayed in 
accomplishing this work from 30 October-20 November 2006 because of the alleged 
constructive change that occurred when the government directed it not to work in certain 
areas until Harry Pepper Construction had finished its performance under a separate 
contract (R4, tab 1 at 4, tab 26 at 5; ex. G-3 at 9; tr. 1/140-41; finding 29). On 
1 November 2006 HECI advised that, unless Head was permitted to install a FOD fence 
S (Finding 5, § 01150, ~ 3.1.8) 
18 

by the next day, HECI intended to "file a claim for both additional time and monetary 
compensation" (R4, tab 6; ex. A-8; tr. 1/136-37). The government determined that, as of 
1 November 2006, HECI was still working on the electrical lighting phase of the contract 
work, that the contract required that electrical lighting work was to be completed before 
the FOD fence and paving work began, and that: 
Your schedule called for the Phase 1 FOD Fence (Activity 
1032) to commence on November 12,2006. However, your 
email of November 2,2006 forwarded a letter from your 
subcontractor stating that the FOD Fence installation would 
begin on November 6, 2006J9] The Navy's Construction 
Manager in a November 3,2006 email notified you that iti 
accordance with the contract the lighting (Activity 1022) 
must be completed first, but the Government was not opposed 
to allowing the paving and FOD fence work to start early so 
long as it did not impact airfield mission requirements and 
was approved by Airfield Management [SiC].[lO] In a·follow­
on email of November 16,2006 to the Navy's Construction 
Manager you acknowledge that you were verbally advised 
that your paving subcontractor could start work on [Monday,] 
November 20, 2006 but because of the holidays would not 
start until [Tuesday,] November 28, 2006Jll] 
(R4, tab 1 at 4.-5; see also R4, tabs 7-9; ex. A-9, Sheet 2 of3, ex. G-14; tr. 2/71-73) The 
government's decision to allow HECI to proceed with the paving work under the 
contract, even though HECl's own project schedule update at the time showed that HECI 
would not complete the electrical lighting work until 18 February 2007, permitted HECI 
to mitigate 83 days of delay in its project schedule (ex. 0-26, tab 7; tr. 2/133-36). 
22. In November 2006 HECI submitted a proposal to perform the extra work 
necessitated by the discovery that a necessary. conduit duct running under Runways 27 
and 32 had collapsed and would have to be re-bored (finding 16). In addition to its cost 
proposal, which included field overhead costs, HECI requested a 30-45 day extension of 
the contract performance period. (Supp. R4, tab 42; tr. 1/89-90, 141-44; gov't br. at 
17-18; app. reply br. at 13) The Navy did not modify the contract to include the 
additional work until 27 February 2007 (finding 25). 
9 (R4, tab 7; ex. G-14) 
10 (R4, tab 8) 
11 (R4, tab 9) The Thanksgiving holiday was on Thursday, 23 November 2006 
(tr. 2/71-74, 76). 
19 

23. By letter'dated 17 January 2007, two days before the contractual completion 
date, the CO issued a letter to HECI expressing concern. over the amount of work yet to . 
be performed and inviting HECI to explain its plan for completion of the contract: 
A review of the NAS update schedule to date on the subject 
contract reveals that you are 100 days behind schedule. The 
current contract completion date is 19 January 2007, and 
considerable work remains. We fear that at the current pace 
of progress, you will not complete the .project on time. 
You are notified that the Government considers your failure 
to proceed according to your schedule a condition that is 
endangering performance of this contract. Therefore, we 
request that you provide us by 22 January 2007, an 
explanation of corrective action that you have taken or 
propose to take in order to complete the project on time. The 
Constructio,n Manager instructed your organization to submit 
a written justification to justify the 79 days behind schedule at 
the meeting held on November 07, 2006. 
If you believe you encountered problems that might entitle 
you to an extension of the contract time, you should inform us 
as to the nature of the problem and provide justification for an 
extension of contract time. Any justification relative to 
requests for time extension based upon unforeseeable causes 
beyond control and without fault or negligence by you, must 
be supported in accordance with requirements found in the 
"'Default" clause of the contract. 
... Also, liquidated damages will be assessed fot each day of 
delay beyond the completion date.­
(R4, tabs 12, 18) 
24.. The next day, on 18 January 2007 the CO acknowledged receipt ofHECI 
invoice number 1639 in the amount of$573,988.31 and informed HECI: 
The amount of$189,245.00 is being retained for the 
following reasons and amount: 1. Behind Schedule 10% 
withheld = $57,400.00.2. Non Compliance Items: Item 1040 
$68,860.00 for not submitting a solution on how to correct 
20 

the problems, and Item 1050 = $62,985.00 in the case of a 
work reduction for not submitting a solution on how your 
organization intend [sic] to correct the problems. The anl0unt 
of$384,743.31 has been processed for payment. 
(R4, tab 13) The total retained amount was 33% of the invoiced amount. Immediately, 
on the same date, HECI responded that, if the government was going to withhold "an 
excessive anl0unt of retainage, we feel that we are also entitled to compensation for the 
Government caused delays of personnel and equipment" (R4, tab 14). In response to the 
CO's invitation the previous day (finding 23), HECI recounted various alleged 
government-caused delays over the entire course ofHECl's performance of contract 
work and included alleged delays due to the digging permit, HAZMA T training, CALA 
restrictions and paving subcontractor start date: 
We had an update meeting about six weeks ago that I 
attended and discussed several Government caused delays. A 
list of these items follows, and if you insist on holding this 
amount of retain age, we feel obligated to bill the Government 
for all Government caused delays. 
(Id.) By letter dated 19 January 2007 the CO dismissed each of HECI' s allegations of 
delay, with two exceptions: 
2.) 	 F or your paragraphs nUinbered two and three 
[regarding the digging permit and HAZMA T training] 
the Government feels you have entitlement to time for 
delays relating to the unforeseen requirement to obtain 
the necessary training to work in an identified 
hazardous area. 
When Mr. Rusty Dahnls assumed Contract Manager 
duties for this proj ect in early Septerrlber 2006 he 
immediately contacted Mr. Ron Blum to inform him of the 
change and requested additional information necessary to 
determine contract progress. As early as 3 October 2006 
Mr. Blum was notified that the project was 63 days behind 
schedule (at that time) and if a time extension was required it 
would be required in writing and should be supported with 
specific written documentation. Your letter of 18 January 
2007 is the first documentation addressing time delays since 
the Government's request of3 October 2006. 
21 

(R4, tab 16) By letter dated 2 February 2007, HECI responded, disagreeing with much of 
the CO's dismissal of its allegations of government-caused delay (R4, tab 17). 
25. On 20 February 2007 the CO forwarded to HECI by email an electronic copy 
of contract Mod. No. P00004 dealing with the collapsed duct that needed to be re-bored. 
HECI was instructed to sign in block 15 and return the modification to the CO. On 
27 February 2007 HECl's Ron Blum advised the CO by email: 
Mr. Hedgecock has talked with the job site superintendent 
regarding this modification. They feel that a 31 day time 
extension is justified. We are waiting on the digging permit 
to be approved, and the subcontractor performing the boring 
is going to try to bore on the 10th of March; however, he is in 
the middle of another project and he may not be available 
before the 17th• 
How do you want to handle this? 
(R4, tab 18; tr. 1/144) The CO responded: 
No time extension is going to be addressed in this 
modification. Time extension will be addressed after the 
completion of the whole project. During the last NAS update 
meeting held on February 15th, 2007, at 1000 A.M., your 
personnel were advised again to s~bmit documentation of all 
the dates where you think the Government has caused any 
delay to this contract. For example, from February 02, 2007 
to February 03, 2007; the actual amount of days delayed, the 
reason and what was the delay for. Upon receipt of these 
[sic] information if will be reviewed and we will make the 
determination whether the contractor ,:"arrants any time 
extension. 
We will issue a unilateral modification no later than 
March 02, 2007, if the contractor decides not to sign the 
modification. 
(R4, tab 18) Mr. Hedgecock signed the modification on 27 February 2007. Bilateral 
Mod. No. P00004 was signed by the CO and became effective on 28 February 2007. 
(R4, tab 3, Mod. No. P00004) The modification paid HECI $38,553.98 for extra work 
due to an unforeseen site condition which required it to hire a subcontractor to perform 
directional boring to install two conduits and circuits under Runways 27 and 32 so 
22 


contract work could be completed but, as stated earlier by the CO, it did not include a 
tinle extension as the CO had advised that any time extension would be addressed after' 
contract completion (R4, tab 3; finding 13). Even though the CO had expressly stated 
that any time extensions would be negotiated at a later time, the modification included 
the following: 
D. Acceptance of this modification by the contractor 
constitutes an accord and satisfaction and represents payment 
. in full for both time and money and for any and all costs, 
impact effect, and for delays and disruptions arising out of, or 
incidental to, the work as herein revised. 
(Jd.) By email dated 13 March 2007 the CO reminded HEel that "we need the letter 
from your organization listings [sic] all the specific dates/items you think your 
organization is entitled for any time extension and the Government has caused the delay" 
(R4, tab 19). We are persuaded by the weight of the evidence that the CO intended and 
consistently acted to negotiate any time extensions due to HECI at the end of the project 
(R4, tab 18; tr. 1/85-90, 94-96, 144-145, 2/17; finding 13) and we so find. 
26. On 19 March 2007 HEel provided more detailed information to the CO by 
email detailing alleged government delays totaling 125 days, which included an 
allegation of delay associated with the collapsed ductwork (R4, tab 20; ex. G-11; 
tr. 1/64-65, 78-79). HEel hired a specialty subcontractor to perform the work which was 
accomplished 17-22 March 2007 (ex. A-23 at 260-65). At the time the conduit re-boring 
work was performed, HECl's as-built schedule showed that the critical path was through 
the paving work (Activity 1068) which was completed on 5 April 2007 (exs. A-14, G-26 
at tab 19), two weeks after completion of the re-boring of the duct. Following the 
completion of the paving work, the last critical path activity on the schedule was testing 
the cables for the entire project (Activity 1044), which was completed between 
12.:17 April and was dependent upon completion of the additional conduit duct 
boring (app. br. at 14, ,76; ex. A-14) 
27. The Navy took beneficial occupancy on 6 April 2007, 77 days past the 
contractual completion date (R4, tab 21). On 12 April 2007 the parties met to negotiate 
various outstanding issues between them, including HECl's allegations of compensable 
government-caused delay. By letter of the same date, the CO responded to HECl's 
19 March 2007 list of specific alleged delays in which he identified and took 
responsibility for 16 days of government-caused delay (3 days associated with the 
digging permit, 5 days for the IR HAZMA T training and 8 days associated with the 
CALA being "hot") and stated the government's intention to issue a contract 
modification to assess 61 days of liquidated damages against HECl in the amount of 
$103,700.00. (R4, tabs 16, 21; trw 1/66-67) At HECl's request, the CO did not 
23 


immediately issue a contract modification assessing liquidated damages so HECI could 
submit an updated CPM fragnet and the government could review it (R4, tabs 23-25). 
28. By letter dated 16 Apri12007 the CO notified HECI that its invoice 1663 was 
'being processed for payment and had been reduced by amounts that included: 
An additional deduction in the total amount of$103,700.00 
for 61 calendar days of Liquidated Damages is also retained. 
(R4, tab 22) 
29. On 5 May 2007 HECI submitted a formal claim 'seeking an extension of the 
contract performance period by77 days plus $51,393.65 for field overhead (77 days at ' 
the daily rate of$667.45) and requesting a contracting officer's final decision (R4, tab 26 
at 1, 16). The breakdown of specific alleged compensable government-caused delays in 
HECl's claim, as clarified in its posthearingbrief(app. br. at 4,6-7, 8, 1~, 14), were as 
follows: 
Red Ramp Stamp 28 JUne ­ 10 July 2006 12 days 
Dig Permit/lR 6 Ju1y-6 August 2006 12 15 days 
CALA "Hot" 10-11, 14-15, 17-18, 21, 30 
August 2006 and 5-16, 18,21 
September 2006 
22 days 
FOD FencelHarry Pepper 30 October - 20 November 
2006 
22 days 
Additional Conduit Bore 17-22 March 2007 6 days 
Total claim 77 days 
(R4, tab 26 at 3-5; app. br. at 4-8, 12, 14) On 18 May 2007 the CO acknowledged receipt 
ofHECI's claim and requested additional information by 25 May 2007 (R4, tab 27). 
12 HECI claimed compensable delay days for a total of 15 days in the period from 
6 July-6 August 2006 as a result of: (a) the time taken by the government to 
review its digging permits past the contractual review period (3 days, 16-18 July); 
(b) HAZMA T training necessitated by the identification of the IR site in its work 
area (5 days, 31 July-4 August); and, (c) alleged government delay in closing the 
runway so HECl's work could start (7 d.ays, 19-25 July) (app. br. at 5-7, 27;'app. 
reply br. at 9-10). 
24 


HECI provided its response on 21 May 2007 which also included an updated cost 
proposal for field office overhead plus mark~ups in the total amount of $62,932.55 
(77 days at the daily rate of $817.31) (R4, tab 28). 
30. On 17 December 2007 a final decision was issued that granted HECI a four 
(4) day time' extension associated with the initial digging permit and denied the balance 
ofHECl's claim (R4, tab 1). Unilateral Mod. No. P00005, dated 19 December 2007, 
extended the contract conlpletion date from 19 January 2007 to 23 January 2007 (R4, ­
tab 3, Mod. No. P00005). HECI timely appealed the final decision to this Board. 
31. Forward Engineering was the company employed by HECI to prepare and 
maintain its project schedules and updates. Mr. Samuel Moser, an employee of Forward 
Engineering, testified as a fact witness as the person who prepared and maintained 
HECl's project schedules for this project and was also accepted by the Board to testify as 
an expert witness in the field of critical path method (CPM) scheduling and time impact 
analysis. (Tr. 1/184-99; R4, tab 26 at 17-18) Mr. Moser testified that he was familiar 
with Contract Specification § 01321N, NETWQRK ANALYSIS SCHEDULES (NAS) 
(finding 5), and used it together with input from HECI to prepare the ~aseline schedule 
for this project (tr. 1/199-05, 207-09; exs.·A-15, G-26 at tab 9). The contract required 
. that the baseline schedule be updated on a monthly basis to reflect actual work in the field 
and any delays or other impacts to the schedule (findings 4, 5 at § 01320N, ~~ 1.3.1, 1.4, 
§ 01321N, ~~ 1.3.2-1.8.1). Mr. Moser did not prepare monthly updates as required by 
the contract; rather, he testified that he prepared updates to the schedule dated 
30 September 2006, 31 December 2006, 14 February 2007, 5 March 2007, 6 April 2007 
using information provided to him by HECI (Exs. A-9-A-13, G-26, tabs 16-18). The 
record also contains updates that Mr. Moser did not mention in his testimony, specifically 
3 July 2006, 4 August 2006,4 Septenlber 2006 (ex. G-26, tab 1 at ~ 3, tabs 13-15). 
Mr. Moser also attended meetings with government personnel after the updates were 
submitted. (Tr. 1/205-07,221-22,226-28; exs. A-9, -13) He does not recall any 
discussions about changing the critical path on this project although activity durations, 
work percentage and dates "probably did change, based on work conditions" (tr. 1/207). 
The completed as-built schedule with all activities updated, shows an actual completion 
date of 16 April 2007 (tr. 1/211; ex. A-14). Mr. Moser prepared a summary of his time 
impact analysis for this project which determined there were 73 days of government­
cau~ed delay to the critical path (exclusive of the conduit boring issue) as well as 
fragnets 13 based on input from HECI that assumed all delays were government-caused 
13 "A fragnet is a snapshot of a set of activities that impacts the critical path on a 
schedule. And when we talk about fragnets, we are talking about depicting only 
the activities in a schedule that are impacted. So if there is, say you have a 
schedule that has zero float. You insert activities into the schedule. It generates a 
different float. ... ,The fragnet will only show the activities that are ... impacted on 
the specified schedule. It's a portion of a full schedule that shows an impact. ... 
25 

(R4, tab 26 at 17-18; tr. 1/237-38, 246, 2/146-47). After adding an additional six days of 
government-caused delay due to the collapsed duct boring issue, Mr. Moser concluded 
there were a total of 79 days of government-caused delays, however, the specific days he 
identified were different fronl the 77 days of delay argued by HECI before us 
(finding 29) and there has been no attempt by HECI to reconcile the differences (R4, 
tab 26 at 17-18; exs. A-16, A-22; tr. 1/213-20, 229-48). On the basis of the totality of the 
record before us, we agree with the CO's assessment of Mr. Moser's.time impact analysis 
as inadequate to support HECl's claimed delays: . 
A review of your Time Impact Analysis reveals the following 
deficiencies: 
1. 	 The fragnet is not provided as specified in 
paragraph 1.8.1a. It does not identify the 
predecessors to the new activity or demonstrate the 
impacts to the successor activities .. 
2. 	 No hard copy printout of the fragnet activities and 
relationships being added was provided. 
3. 	 The fragnet is not inserted into the most current, 
accepted Monthly Network Analysis Update. The 
preparer started with the new activity and gave it an 
arbitrary constraint date with the schedule starting 
on that date. This does not show how the new 
activity impacts the critical path but assumes it 
does from the arbitrary date selected and utilized. 
The result is the fragnet is useless for assessing 
impact to the current accepted Monthly Updated 
Schedule. 
4. 	 The schedule utilized by the Contractor for 
insertion of his fragnet was not the most current 
accepted Monthly Updated Schedule, but the 
Approved Base Schedule .... 
Time impact analysis' is similar to the fragnet. Normally a time impact analysis 
would show the full schedule, and how the float has changed on every single 
individual activity, and it also incorporates the fragnet activities." (Tr. 1/191-92; 
see also finding 5, § 01321N, ~ 1.8.1) 
26 

The presence of the above deficiencies in your fragnet 
documentation makes your TIA non-compliant with the 
contract and cannot be used to support your claim for a time 
extension. 
(R4, tab 1 at 10; see also ex. G-26 at tab 8) 
32. Without objection, the Board accepted Mr. Kurt Musser as the government's 
proffered expert witness in construction management and construction schedule analysis, 
including CPM analysis. Mr. Musser concluded, on the basis of the schedules and delay 
analysis submitted by HECI, the daily reports and the Rule 4 file, that HECI experienced 
11 days of government-caused delay (14-19, 31 July 2006 - 4 August 2006) to work on 
the critical path associated with the digging permitlIR site identification. He concluded 
that no further claimed delays were supported. (Tr. 2/79-85; ex. G-26, tabs 1-21) 
33. The testimony and reports of the parties' opposing experts regarding the 
formal CPM schedules and fragnets submitted byHECI during contract performance are 
of limited value to us as evidence of what work was actually done and when for two 
reasons:­
a. First, HEel's schedules, which were not updated every month as required by 
the-contract (finding 5, 01320N, " 1.3.1, 1.4, § 01321N, " 1.3.2, 1.8.1), did not reflect 
in real time any changes in the sequence of work and critical path shown by the record to 
have actually occurred in the fie.1d (finding 31). Mr. Moser prepared the schedules and 
fragnets based on input from HECI which assumed that all delays were government­
caused delays and that there were no contractor-caused delays (tr. 1/237-38,2/145-46). 
By virtue of the fact that the contractually-required nl0nthly updates were not always 
submitted (finding 31) and due to the method by which Mr. Moser added new activities 
into the schedule by means of fragnets at the end of contract performance without tying 
them logically to the predecessor and successor activities in the existing schedule, it 
becomes more difficult to determine what, if any, impactthe alleged delays had in real 
time on the overall project schedule or the critical path of work in that schedule 
(tr. 2/106-14, 117-20, 126-30, 136-39, 142-46). As a result of these factors, we have little 
confidence that the interim schedules between the baseline schedule and the final as-built 
schedule submitted by HECI accurately reflect the actual work and conditions at the 
jobsite for any specific date or period of time. However, HECl's final update, its as-built 
schedule, is of some value as it shows what HECI reported to Mr. Moser as the actual 
start and finish dates of each activity performed by the contract completion date of 
16 April 2007 (exs. A-14, G-26 at tab 19). And, while they may not have accurately 
reflected how and when work was actually performed in real time, HECI's baseline 
schedule and interim updates are the only real evidence we have of HECI' s planned work 
schedule and these were the schedules with which the Navy assessed HECl's progress. 
27 


We find them useful for the limited purpose of analyzing HECl's claimed delays in the 
context of its plan for achieving the work. 
b. F~lfther reducing the credibility ofHECI's schedules arid fragnets submitted 
during contract performance as reflective of how and when the actual work was 
performed is the testimony ofHECI's project superintendent that the schedules prepared 
by Mr. Moser and admittedly not updated to show delays or changes to the work 
(finding 31) were not really reflective of what actually took place in the field: 
Q Now when you are working on any part of the 
contract, you have to comply with what the schedule says, 
correct? 
A Correct. 
Q That is how you know when to start certain 
activities. You go by what the schedule and the updates say, 
. correct? Is that right? 
A Truthfully, no. 
Q You don't follow the schedule? 
A" No. 
Q Okay. How do you do it then? 
A You do it by what the airfield manager allows 
you to do. 
Q Right. But when the airfield manager says you 
can work, how do you know what to do? 
A You work in areas that he allows you to. The 
schedule is really nice for looking at, but for doing actual 
airfield work the schedule is not a real good reflection of 
actually how' a project is done. 
Q Did you follow the schedule in this case? 
28 


AWe followed it the best we could. You are only 
allowed to work where the airfield manager designates that 
you can work. 
(Tr. 1/165-66) 
DECISION 
A. Alleged Government-Caused Delays, 
HECI initially sought 125 days of compensable government-caused delays on 
19 March 2007 (finding 26). On 12 April 2007 the CO identified 16 days of government­
caused delay in his response to HECl's alleged delays and stated the government's 
intention to assess 61 days of liquidated damages (77 days after contractual completion 
date minus 16 days of government delay = 61 days) (finding 27). HECI then, on 5 May 
2007, submitted a formal claim seeking an extension of the contract performance period 
for 77 days of compensable delay due to alleged government actions and inactions, as 
well as the remission of the 61 days of liquidated damages assessed (finding 29). In a 
final decision dated 17 December 2007, HECI was granted an extension of the contract 
performance period in the amount of 4 days associated with the initial digging permit and 
the balance of the claim was denied. HECI timely-appealed that decision. HECI has the 
burden of proof with respect to its affirmative claims of compensable government-caused 
delays entitling it to an extension of the contract performance period and field office 
overhead plus mark-ups. States Roofing Corp., AS~CA No. 54860 et al., 10-IBCA 
~ 34,356 at 169,661; Wilner v. United States, 24 F.3d 1397,1401 (Fed. Cir. 1994) (en 
banc). 
The assessment of liquidated damages is a government claim and the government 
has the initial burden of proving that a contractor failed to meet the contractual 
completion date and that the period of time for which it assessed liquidated damages Was 
correct. Once the government establishes a prima facie case that its assessment of 
liquidated damages was correct, the burden of proof shifts to the contractor to show that 
its fa~lure to meet the contractual completion date was excusable. KEMRON 
Environmental Services Corp., ASBCA No. 51536,00-1 BCA, 30,664 at 151,399. The 
government took beneficial occupancy on 6 April 2007 which was 77 days after the 
contractual completion date of 19 January 2007. On 12 April 2007 the government 
advised HECI of its intent and on 16 April 2007 it deducted 61 days of liquidated 
damages in the amount of$103,700.00 from payment of one· ofHECl's invoices. 
Accordingly, we find that the government has established a prima facie. case that contract 
performance continued after the 19 January 2007 contractual completion date and that 
liquidated damages were appropriate for the period of contract performance between the 
contractual completion date and the date of beneficial occupancy. The burden of proof 
then shifts to HECI to establish a valid defense to the assessment of liquidated damages. ­
29 


HECI has asserted as its defense thf:lt 77 days of government-caused delays were the 
reason for the entirety of the 61 days of liquidated damages that were assessed. With 
respect to a contractor's burden of proof as to entitlement to remission of liquidated 
damages, we have held: 
In general,. liquidated damages will be excused if a contractor 
demonstrates that the Government caused the delay, even if 
the contractor also contributed to the delay during that same 
time period .... In making its case, "it is essential to [the 
contractor's] success that it prove that the [delaying] items 
complained of caused a delay to the completion of the project 
as a whole .... " 
KEMRON, 00-IBCA ~ 30,664 at 151,400 (case citations omitted). Normally, a delay 
that affects the overall completion of ttIe contract work is a delay to work on the critical 
path. States Roofing, 10-1 BCA ~ 34,356 at 169,661. 
In order to assess whether there was a delay to HECl's contract work on the 
critical path we would normally first look to the project schedules, as of the dates on 
which delay is alleged, to determine whether the work alleged to have been delayed was 
planned to be under way on that date and whether that work was on the critical path. The 
contract had very specific requirements for monthly updates to the project work 
schedules to be prepared and submitted to the government by HECL The contract also 
contemplated the use of time impact analysis as well as schedule and contract 
modifications throughout the contract performance period to address schedule impacts 
due to delays and changed work. (Finding 5, § 01320N, ~~ 1.3.1, 1.4, § 01321N, ~~ 1.1, 
1.3.2, 1.8, 1.8.1) RECI hired Forward Engineering, and its employee Mr. Moser, to do 
its scheduling work. The record shows that HECI (through Mr. Moser) did not prepare or 
submit an update every month as required and its schedules during contract performance 
did not identify the delays it now alleges, either as to cause or party responsible as was 
required by the contract; the first time impact analysis it submitted was late in the 
contract performance period (findings 5, § 01321N, ~~ 1.3.2, 1.8, 1.8.1,31). Further 
operating against the credibility ofRECl's schedules is the testimony of its own project 
superintendent that there was not necessarily a correlation between the actual work 
performed and the work shown on the schedules. (Findings 31,33) In Robust Constr'J 
L.L.C.,ASBCA No. 54056,05-2 BCA ~ 33,019, we found a contractor's schedules to be 
inadequate as evidence of delays and impact to the critical path of the project: 
([A] credible CPM time impact analysis should take into 
account and give appropriate credit for all of the impacts to 
the project); Norair Engineering Corp., ENG BCA Nos. 3804 
et at., 90-1 BCA ~ 22,327 at 112,205) "([a] contractor's 
initial network analysis ... is constantly changing .... Activities 
30 

which were not critical prior to the new event may be 
rendered critical;. .. Whether the change or delay affects the 
critical path must be determined on the basis of conditions 
existing immediately prior to its occurrence; not on how it 
might have changed what someone planned (or should have 
planned) months or years previously"). [Erpphasis added] 
Id. at 163,649. The government also failed to timely address time impacts to the schedule 
during performance as required by the contract (findings 4, 5 at § 01321N, ~~ 1.1, 1.3.2, 
, 1.8, 1.8.1), postponing all discussion of time to the end of the contract (findings 13, 19, 
23-25,27). Accordingly, we tum to other evidence in the record before us, including the 
daily reports, to determine whether there were compensable government-caused delays to 
work on the critical path. 
1. Red Ramp Stamp 
HECI seeks 12 days of compensable government-caused delay from the date of its 
mobilization on 28 June 2006 to 10 July 2006, the date its employees completed the 
A VOIC course and received "red ramp stamps" allowIng them to operate vehicles on the 
airfield. HECI attributes this delay to "a lack of clarity in the specifications, coupled with 
the Navy's failure to address the issue at the Preconstruction Conference." (Tr. 1/36-37, 
76; app. br. at 23-25; app. reply br. at 7-8) We find that the contract requirement for the 
specific A VOIC driving course was clear and unambiguous and it was incumbent upon 
HECI to be sure any driving courses it took met the AVOIC requirement. HECl's claim 
for this delay is therefore denied. 
2. Digging PermitlIR 
HECI seeks a total of 15 days of compensable delay in the period from 6 July­
6 August 2006 as a result of: (a)the time taken by the government to review its digging 
permits past the contractual review period (3 days ); (b) HAZMA T training necessitated 
by the identification of the IR site in its work area (5 days); and, (c) alleged government 
delay in closing the runway so HECl's work could start (7 days) (finding 29, n.12). In 
January 2007 the contracting officer acknowledged government responsibility for delay 
, associated with the digging permit and the HAZMA T training and did not assess 
liquidated damages for eight days of alleged government-caused delay but there was no 
modification of the contract completion date (finding 24). In December 2007 a 
contracting officer's final decision granted HECI four days associated with the digging 
permit and denied the balance ofHECl's claim. A contract modification was executed 
that extended the contract completion date from 19 January 2007 to 23 January 2007 
(finding 30). 
31 

Our detailed analysis of the evidence before us relating to the claimed period from 
6 July-6 August 2006 shows that there was no government delay in the review ofHECl's 
28 June 2006 digging permit request.. The. government responded timely on 10 July 2006 
with a denial of the permit due to the identification of the IR site within the work area. 
While there was no delay associated with the review of the digging permit, we have 
found that HECI was delayed by the government due to the identific~tion of an 
unforeseen IR site from 10-18 July 2006 (nine days). (Finding 11) We have also found 
that the government caused a seven day unexplained delay from 19-25 July 2006 in 
closing Runway 14-32 so HECI could begin critical path work (finding 12). In addition" 
we have found that the unforeseen identification of the IR site by the government caused 
HECl's workers to be required to complete HAZMA T training before being authorized 
by the government to continue work in the IR site which delayed critical path work for 
another five days from 31 July-4 August 2006 (finding 13). We have therefore found a 
total of 21 days of compensable government-caused delay in the period from 6 July­
6 August 2006 due to the identification of the IR site. Since HECI was already 
compensated for field office overhead for the period of the HAZMA T training in Mod. 
No. POOOOl, it is not entitled to further monetary compensation in addition to a time 
extension for that period. 
3. CALA "Hot" 
The contract put HECI on notice that the airfield would remain in operation 
. throughout the period of contract performance and that HECI was required to conduct its 
work so that it caused as little disruption to the normal operation of the airfield as 
possible (finding 5, § 01140, ~ 1.1, § 01150, ~3.1.1, 3.1.2). However, nothing in the 
contract notified HECI that the work area included something called the CALA and that 
work in the CALA was subject to being stopped often and for hours or days at a time 
(findings 8, 14, 17-18). HECI seeks compensable government-caused delay due to the 
CALA being "hot" on 22 days between 10 August and 21 September 2006. We havt; 
found that the record supports HECl's allegation of no meaningful contract work on the 
22 identified days (findings 18; see also finding 29). The government argues that HECI 
was not really delayed because it could have worked on the rest of the runway when the 
CALAwas "hot" (R4, tab 1 at 6, tab 16; gov't br. at 33). We are not persuaded by the 
government's argument for two reasons: the contract required that HECI was to conduct. 
its work in an orderly fashion and not have multiple sections of the runway under 
construction at once (finding 5, § 01140, ~ 1.1, § 01150, ~~ 3.1.1,3.1.2,3.1.5,3.1.8); and, 
even if HECI had moved to work on other parts of the runway, sooner or later HECI Was 
going to have to work in the CALA area. The government has offered no evidence or 
argunlent that HEel would have encountered fewer work stoppages by working in the 
CALA in a different time frame. We are persuaded by the weight of the evidence that 
HECI is entitled to an extension of the contract performance period in the amount of 
22 days due to government delay caused by work restrictions in the CALA which were 
not contained in the contract, were unforeseeable at the time of HECI' s proposal and 
32 


work plan arid impacted HECl's ability to perform meaningful contract work on the 
critical path. 
4. FODFence 
HECI seeks 22 days of compensable government-caused delay in the period from 
30 October-20 November 2006 (finding 29). HECI alleges the delay was caused when its 
paving subcontractor arrived on site and was not permitted to start work by installing the 
required FOD fence adjacent to the runway on 30 October 2006 because another 
contractor was still working in the area to be paved (findings 20, 21) .. 
The government responds that HECl's paving subcontractor was not permitted to 
start work on 30 October 2006 because HECl's own schedule showed that the paving 
work was not to start until after electrical lighting Activity 1022 (Install New Runway 
Lights) was complete and it was not complete as of 1 November 2006. According to 
HECl's as-built schedule, Activity 1022 was not completed until 4 January 2007 
(exs. A-14, 0-26, 'tab 19). The government also pointed out that, even ifHECI had been 
on schedule and not 83 days behind schedule as it actually was, HECl's schedule showed 
Activity 1032 (installation of the FOD fence) not starting until 12 November 2006 at the 
earliest. Nevertheless, the government advised HECI that it was not opposed to HECI 
starting the FOD fence installation and paving work early so long as it did not interfere 
with airfield mission requirements and was approved by the airfield manager. On 
Thursday, 16 November 2006, the governnlent authorized HECI to start paving on 
Monday, 20 November 2006. However, HECl's subcontractor elected not to begin the 
paving work until after Thanksgiving on Tuesday, 28 November 2006. (Finding 21) 
Under the express terms of the contract, the government would have been within 
its rights to require that HECI not start any paving work until the electrical/lighting work 
was complete. Nevertheless, after assessing HECl's request for an early start on the 
paving work and the potential impact on airfield operations, the government's 
authorization for HECI to start paving work on 20 November, allowed HECI to mitigate, 
at least 45 days (20 November 2006 4 January 2007) of further delay it would have 
experienced if it had been held to the contract requirements and had not started paving 
until after Activity 1022 was complete on 4 January 2007. We find that any delays to the 
start of its paving work experienced by HECI in the claimed period from 
30 October-20 November 200'6 were not government-caused and we deny this portion of 
HECl's claim. 
5. Additional Bore 
It is undisputed that the occurrence of the collapsed duct under the runway was a 
condition unforeseen by either party and the government has reimbursed HECI for the 
full amount of its cost proposal for performance of the additional work required, but has 
33 


not granted a time extension to the contract completion date. All that remains to be 
. determined is whether there is government-caused delay associated with the additional 
work. The collapsed duct was identified on 2 September 2006, HEel submitted a cost 
proposal in November 2006 to re-bore the duct and the government authorized the 
additional work in Mod. No. P00004 dated 27 February 2007,. The work was actually 
accomplished by a specialty subcontractor on 17-22 March 2007. (Findings 16, 22, 25, 
26) HEel's claim is for six days of compensable delay for the time it took to perform the 
additional work required to correct the collapsed duct. 
The government argues that the critical path of the work at the time the duct was 
re-bored was through the paving work and not the electrical work, and. since the 
additional work was not on the critical path, HEel's overall performance of the contract 
was not del~yed (gov't br. at 35-36). We have found that the additional conduit boring 
work done on 17-22 March 2007 was not on the critical path (which was paving work at 
the time) and that it was complete well before the critical path shifted to the cable testing 
work (completed 12-17 April 2007) which was dependent upon the completion of the 
collapsed duct work (finding 26). The additional collapsed duct work, therefore, did not 
delay completion of the project and we deny HEel's claim for six days of compensable 
government-caused delay associated with that work. 
B. Accord and Satisfaction 
The government argues that HEel's claims for both time and money associated 
with matters addressed in two bilateral contract modifications are foreclosed by the 
doctrine of accord and satisfaction (gov't br. at 11-12, 19-20, 31-32). Specifically, under 
Mod. No. POOOO 1 the government paid HEel $11,811.79, including field overhead costs, 
for five days ofHAZMAT training; HEel did not request a time extension in its' cost 
proposal and Mod. No. P00001 did not include an extension of time (finding 13). Under 
Mod. No. P00004 the government paid HEel $38,553.98, including field overhead costs, 
for reboring the collapsed duct; HEel did not request a time extension in its cost proposal 
and Mod. No. P00004 did not include an extension of time (fmding 25). Both 
modifications contained the following language: 
Acceptance of this modification by the contractor constitutes 
an a9cord and satisfaction and represents payment in full for 
both time and money and for any and all costs, impact ~ffect, 
and for delays and disruptions arising out of, or incidental to, 
the 'work as herein revised. 
We have found that, despite its inclusion of release language in the modifications and the 
contract's requirement that delays and changed work be: addressed throughout contract 
performance (findings 4, 5 at § 01321N, ~~ 1.1,1.3.2,1.8,1.8.1), it was the eo's 
intention, and HEel was advised, that time extensions were going to be considered at the 
34 


end of the contract. Requests by HECI for time extensions due to government-caused 
delays during the entirety of the contract performance period were specifically invited, 
discussed, negotiated and acknowledged by the government in the waning days of the 
contract performance period (findings 13, 19, 23-25,27). Where the conduct of the 
'part,ies after the execution of an agreement manifests an intention to 'continue to negotiate 
the matter, there is no bar to future claims. England v. Smoot Corp., 388 F3d 844, 
849-50 (Fed. Cir. 2004) (no bar to future claims where the Navy continued to consider 
claims subsequent to modifications that included the identical language now before us). 
The government argues that the CO only intended to invite documentation of any 
delays associated with Mod. 00004 and the collapsed duct when he wrote: 
No time extension is going to be addressed in this 
modification. Time extension will be addressed after the 
completion of the whole project. During the last NAS update 
meeting held on February 15th, 2007, at 1000 A.M., your 
personnel were advised again to submit documentation of all 
the dates where you think the Government has caused any 
delay to this contract. For example, from February 02, 2007 
to February 03, 2007, the actual amount of days delayed, the 
reason and what was the delay for. Upon receipt of these 
[sic] information it will be reviewed and we will make the 
determination whether the contractor warrants any time 
extension. 
(Finding 25) (Emphasis added) We cannot agree as we believe his language is quite clear 
and unambiguous that he was again inviting HECI to identify and provide documentation 
as to all the dates where HECI thought the government had caused delays and did not 
limit his invitation at all. Confirming our belief, on 13 March 2007 the CO again invited 
HECI to advise of any government-caused delays (finding 25). On 19 March 2007 HECI 
submitted a detailed list totaling 125 days of alleged government-caused delay (finding 
26). On 12 April 2007 the CO and HECI met to negotiate various issues; in his letter of 
the same date the CO took responsibility for 16 days of government-caused delay and 
stated his intention to assess liquidated damages for 61 days (finding 27). On 16 April 
20P7 the CO confirmed his position when he deducted $103,700.00 for 61 days of 
liquidated damages from payment ofHECl's invoice 1663 (finding 28). In so doing, he 
manifested his intention to continue negotiations as to time extensions including those 
associated with the subject matters addressed in Mod. Nos. POOOOI and P00004. On that 
basis, we reject the government's asserted defense that some or all of HECI' s claims for 
government-caused delay were barred by accord and satisfaction. 
35 
a&££! 1& 2 

C. Appellant's Additional Arguments 
HECI raised several other legal theories of recovery relating to the validity of the 
liquidated damages in its post-hearing brief and reply brief (app. br. at 16-21; app. reply 
bra at 6-7). We have considered them and, finding them unpersuasive, they will not be 
addressed further. 
CONCLUSION 
HECI is entitled to recover for 43 days of compensable government-caused delay 
(subject to the fact it has already recovered for field office overhead for the HAZMAT· 
training). The contract completion date should have been extended to 3 March 2007. 
HECI is liable for 34 days of liquidated damages, the time period from 4 March 2007 to 
6 April 2007. The appeal is sustained to that extent and otherwise denied. We remand 
the appeal to the parties for negotiation of quantum in accordance with the above. 
Dated: 20 June 2012 
Admini rative Judge 
Armed Services Board 
of Contract Appeals 
I concur I concur 
~tfft4MARK N. STEMPLER EUNICE W. THOMAS 
Administrative Judge Adnlinistrative Judge 
Acting Chairman Vice Chairman 
Armed Services Board Armed Services Board 
of Contract Appeals of Contract Appeals 
36 


I certify that the foregoing is a true copy of the Opinion and Decision of the 
Armed Services Board of Contract Appeals in ASBCA No. 56307, Appeal of Hedgecock 
Electric, Inc., rendered in conformance with the Board's Charter. 
Dated: 
CATHERlNEA. STANTON 
Recorder, Armed Services 
Board of Contract Appeals 
37