Lebolo-Watts Constructors 01 JV LLC
Docket: ASBCA 59738, ASBCA 59909
Decision date: 2018-11-16

ARMED SERVICES BOARD OF CONTRACT APPEALS 
~perus~- ) 
) 
Lebolo-Watts Constructors 01 JV, LLC ) 
) 
Under Contract No. W912DR-l l-C-0033 ) 
APPEARANCES FOR THE APPELLANT: 
APPEARANCES FOR THE GOVERNMENT: 
ASBCA Nos. 59738, 59909 
Herman M. Braude, Esq. 
Edward D. Manchester, Esq. 
Braude Law Group, P. C. 
Rockville, MD 
Michael B. Goodman, Esq. 
Engineer Chief Trial Attorney 
Scott C. Seufert, Esq. 
David B. Jerger, Esq. 
Engineer Trial Attorneys 
U.S. Army Engineer District, Baltimore 
OPINION BY ADMINISTRATIVE JUDGE PAGE 
Lebolo-Watts Constructors 01 JV, LLC (LWJV, appellant, or the contractor) 
entered into a contract with the United States Army Corps of Engineers, Baltimore 
District (government, Corps, or district) to replace the Defense Satellite 
Communications System (DSCS) Operations Center (DSCSOC) at Ft. Meade, 
Maryland with a new facility. 1 During construction, the government required the 
contractor to remove certain lengths of flexible metal clad cable (MC cable or MCC) 
that its subcontractor Worch Electric (Worch, Worch Electric, or subcontractor) had 
installed in concealed spaces and replace it with electrical metallic tubing (EMT). 
1 This decision resolves ASBCA Nos. 59738 and 59909, which arose from the claim 
(claim 1 or MCC/EMT claim) dated January 21, 2014 ("Request for 
Contracting Officer's Final Decision [COFD] for Government Directed 
Instrulation of EMT [Conduit] in Lieu of MC Cable for Power Wiring at 
Concealed Spaces") (R4, tab 42). ASBCA No. 59738 was appealed before the 
COFD was issued, and related appeal ASBCA No. 59909 was filed after a 
COFD was rendered. ASBCA Nos. 59739 and 59910 similarly arose from 
LWJV's March 28, 2014 (claim 2 or the telecom claim (see R4, tab 20 at 23-32, 
tab 41 at 6-7)) and were heard in the same proceeding; these were dismissed as 
settled for $83,988 of the $579,874 paid by the government (app. br. at 3) in 
Contract Modification No. POOOOl dated March 11, 2015 (R4, tab 40). 

Although the government eventually acknowledged there was a changed 
condition and unilaterally modified the contract to recompense L WJV for an amount 
the government regarded as reasonable, the contractor appealed to recover the claimed 
balance. Only quantum is before the Board. We deny the MCC/EMT claim for 
additional compensation, and regard the amount already paid as excessive. 
FINDINGS OF FACT 
A. The Government's Request for Proposals (RFP) 
1. The government issued RFP No. W912DR-l l-R-OO 11 on November 24, 
2010 (R4, tab 2). This procurement for the ·'Wideband Satellite Communication 
(SATCOM) Operations Center (WSOC)" would be a design-bid-build effort to replace 
the current DSCSOC; a 100% set-aside for small business concerns; and awarded on a 
"best value" basis (id. at 3-5).2 
2. In relevant part, by Amendment No. 0003 to the RFP of December 20, 2010 
(R4, tab 6), the government changed contract specification "Section 26 20 00 [Metal 
Clad Cable], Page 22, Paragraph 3 .1.3 .2" to state that "Installation shall be limited to 
single phase branch circuits in concealed spaces unless otherwise noted. All other 
circuits shall be in EMT or rigid galvanized steel." (Id at 3) 
B. The Lebolo-Watts Joint Venture 
3. LWJV is a joint venture between Lebolo Construction Management (LCM), a 
small 8(a) firm certified by the United States Small Business Administration (tr. 2/6), and 
Watts Constructors, which was then owned by the Weitz Company 3 (tr. 1/28, 31-32). 
LCM owned 51 % of the joint venture. Randy Lebolo is the owner and president of LCM 
and the joint venture manager for LWJV. (Tr. 2/5-6) John Sloss was brought in by 
Weitz "as the project manager for the project." He later took on additional duties, 
including that of quality control (QC) manager. (Tr. 1/28) 
C. Contract No. W912DR-I I-C-0033 
4. On August 8, 2011, L WJV and the government entered into firm-fixed-price 
(FFP) Contract No. W912DR-l l-C-0033 for $18,392,000 (R4, tab 1). Contract line 
item number ( CLIN) 0001 for the WSOC was in the amount of $11,140,000. This task 
included "All costs in connection with construction of [the WSOC] including utilities to 
2 Where the parties have affixed pagination, we adopt that reference in lieu of numbers 
that appear on the original document. 
3 Mr. Sloss worked for the Weitz Company, which is spelled phonetically as "White's" 
in the transcript (tr. 1/28). 
2 

j 
I 
points 5 feet outside the building lines, complete as shown on drawings and specified, 
but exclusive of work covered under Base Bid Item No. 0003." (R4, tab 1 at 5) 
5. Among standard contract clauses from the Federal Acquisition Regulation 
(FAR) that were incorporated by reference are FAR 52.233-1, DISPUTES (JUL 2002); 
and FAR 52.243-4, CHANGES (JUN 2007) (R4, tab 2 at 15-16). 
6. Also incorporated by reference is Department of Defense FAR Supplement 
(DFARS) 252.243-7001, PRICING OF CONTRACT MODIFICATIONS (DEC 1991) (R4, 
tab 2 at 16). This clause provides that ''\Vhen costs are a factor in any price 
adjustment under this contract, the contract cost principles and procedures in FAR 
Part 31 and DF ARS Part 231, in effect on the date of this contract, apply." 
7. Contract specification§ 26 20 00, ,r 3.1.3.2, Metal Clad Cable, calls for the 
contractor to "[i]nstall in accordance with NFPA [National Fire Protection 
Association] 70, Type MC cable'' (see R4, tab 6 at 3, tab 18 at 14). NFPA 70 is also 
known as the National Electrical Code (NEC) (tr. 2/141). The NFPA "Glossary of 
Terms" defines "Concealed Spaces" as "[t]hat portion(s) of a building behind walls, 
over suspended ceilings, in pipe chases, attics, and whose size might normally range 
from 44.45 mm (1 in.) stud spaces to 2.44 m (8 ft.) interstitial truss spaces and that 
might contain combustible materials such as building structural members, thermal 
and/or electrical insulation, and ducting" (R4, tab 18 at 33). 
8. The project was a single~story building of roughly 28,000 square feet 
intended to house, among other things, mechanical rooms, equipment rooms, a combat 
room, and office space. About 40-50% of the building had raised access floors 
underneath which wiring and utilities were to be run. Most of the building had a flat 
roof, although two areas were sloped. The roof above the raised access floors was 
about 25-28 feet high. (Tr. 3/9-11; see also R4, tab 52, contract drawings) The parties 
disputed whether the contract permitted MCC to be installed in concealed spaces that 
were below the raised floor and above the acoustic tiled ceiling (ACT) that was over 
the floor space and under the roof (tr. 2/ 154). 
D. Worch Electric 's Subcontract ivith LWJV 
9. Initially, LWJV subcontracted with 1st Electric, Inc. for the work that was 
later performed by Worch Electric (R4, tab 46). pt Electric's bid was for $3,790,000 
plus 1.2% bond (R4, tab 45 at 12). As appellant provided no bid sheets or other 
credible documentation of 1st Electric' s bid, we are unable to reliably discern the 
manner in which it constructed its bid, discrete cost elements, or how it intended to 
prosecute the work. We are unable to draw any conclusions or parallels between 
l51 Electric's bid and LWJV's subsequent bid from and contract with Worch Electric. 
3 

10. After pt Electric was unable to secure bonding (tr. 1/30-31), LWJV 
obtained a proposal from Worch Electric (R4, tab 47) to do the indoor portion of the 
work for $3,738,000 plus bond at 2% (id. at 5-6). Mr. Christian Worch is an 
experienced electrical contractor who serves as president of W orch Electric and 
was the company's chief operating officer for the subcontract with LWJV. 
Mr. Worch joined Worch Electric, which was started by his father Mr. Denny Worch, 
after graduating from college and working for Dynalectric and James Electric. 
Christian Worch is not a union electrician, although Denny Worch is.4 (Tr. 1/122-24) 
11. Patrick McCarty prepared Worch Electric 's estimate for L WJV (R4, tab 48 ). 
Mr. Worch said that he and Denny Worch checked Mr. McCarty's takeoff sheets 
(tr. 1/124-28). According to Christian Worch, the takeoffs show an estimated 
49,000-50,000 linear feet (LF) of MCC for the job, of which 40,000 LF were to be 
installed above the suspended ACT and below the concrete floor (tr. 2/27-28). 
12. Although the contract with the government established an FFP for L WJV 
to perform CLIN 1 (R4, tab 1 at 4), and Worch Electric provided takeoff sheets 
from its estimate (R4, tabs 4 7-48), neither the contractor nor its electrical 
subcontractor identified the amount included in its respective bid and estimate for the 
disputed installation of MCC. We accept appellant's assertion that W orch Electric 
intended to use significant amounts of 12-2 MCC on this project (tr. 1/129-30), but 
cannot ascertain from the record how much of this material or its cost was anticipated 
by 1st Electric in L WJV' s bid, or in the contract between L WJV and W orch, for the 
disputed work in concealed spaces. 
13. We decline to accept appellant's assertion that the joint venture, whose 
bid would have included costs from 1st Electric and not W orch, "submitted its 
bid based on using MC cable in 'concealed spaces' for single phase branch and 
telecommunications circuits above the 23 to 25 foot high suspended ceilings and 
below a three foot elevated raised flooring" (app. br. at 8, _appellant's proposed 
findings of fact, 124 (citing tr. 1/128-31)). Appellant cited no documentation to 
support these assertions, and Mr. Worch' s generalized testimony is insufficient on 
this point. We note that L WJV subcontracted with Worch for this electrical work on 
May 22, 2012 (R4, tab 49 at 41 ), nearly nine months after L WJV contracted with the 
government (R4, tab 1 at 1 ). 
14. While appellant later criticized the independent government estimates 
(IGEs) for the cost of claimed work for, among other alleged deficiencies, not 
considering that there were "381 single phase branch circuits" and that ceiling heights 
were "28-30 [feet]" (see, e.g., app. br. at 21,188), there is no contemporaneous 
4 References to "Mr. W orch" are to Mr. Christian W orch unless otherwise specified. 
4 

documentation that Worch Electric's submission to LWJV priced the job taking into 
account these considerations and we decline to find that it did so. 
E. The Relative Properties ofMCC and EMT 
15. The relative properties of MCC and EMT are important to this dispute. 
According to appellant, MCC is a flexible, metal clad cable that contains three or more 
wires depending upon configuration. MCC, which comes in rolls of 1,000 feet, 
contains wire, whereas EMT does not. For example, 12-2 MCC ·'carries three 
conductors in it. There's a power feed, a neutral and a ground." The "12'' refers to the 
thickness of the wire; the lower the number the thicker the wire, hence #10 wire has a 
thicker gauge than #12 wire whereas #18 wire is thinner. (Tr. 1/130-33) 
16. The purpose of the wiring in question, whether contained within the MCC 
or routed through EMT, is to carry electrical power from a source to a designated point 
or receptacle (tr. 1/135-40). Appellant contends that the "single phase branch circuits 
at issue powered lighting and electrical outlets for equipment, as well as security, 
cameras, cards [sic] readers, etc.'' ( app. reply br. at 17, appellant's counter-statement 
of facts (ACSOF) ,r 59 (citing tr. 1/139-40, 3/312, 324)). 
17. The flexibility of MCC makes it easier to cut and install than the more rigid 
EMT. MCC can be bent more readily than EMT, which appellant said could not be 
installed with more than three 90-degree bends without putting a junction box within. 
(App. br. at 11, ,r,r 38-40 (citing tr. 1/80, 130-33)) MCC can be connected in a "daisy 
chain" fashion from fixture-to-fixture (tr. 1/165). However, the ability to easily hang 
MCC from various supports can result in a disorderly installation. The government was 
also concerned that the wall penetrations made by W orch Electric to install MCC could 
result in sound leakage. This was a problem, as the facility was meant to be capable of 
being upgraded to a Sensitive Compartmentalized Information Facility. (Tr. 2/142-45) 
18. By contrast, EMT is "basically a conduit" that allows various types of cable 
or wiring to be installed inside the tubing and has the advantage of accommodating 
more wires than MCC. EMT requires different supports and more effort to install than 
MCC, but the finished result is more organized and reduces the amount of separate 
wiring running through the space. (Tr. 2/145) 
F Contract Performance and the Alleged Costs of Changed Work 
19. Mr. Worch testified that it was critical in the fall and winter of 2012-2013 
for his company to get "our rough-in installation completed above the ceiling and 
below the floors. So, Lebolo-Watts could do their finish work which meant install 
ceilings, install raised floors, pedestals, and so forth.'' (Tr. 2/78) He described a 
sequence of work that required W orch Electric to "get the overhead work done and out 
5 

of the way, and then come back and then do the floor work. ... Nobody would start the 
floor work until all the overhead work was done, meaning mechanical, sprinkler, 
electrical and a couple of other trades." Mr. Worch said that his company 'jumped out 
ahead and installed all of our branch circuit home runs in areas that were available to 
us where the ceiling was installed'' as well as the "slab where the pedestal floor was 
going." (Tr. 1/143) 
20. In assessing the allegedly changed work and associated costs, we follow 
the claim's approach of separating the work into three stages: (1) the initial 
installation ofMCC in concealed spaces; (2) the removal of that MCC; and (3) the 
installation of EMT in lieu ofMCC (see, e.g., app. reply br. at 28). Although LWJV 
asserts that it no longer seeks $115,750 in costs for initially installing MCC because it 
was paid for this work through progress payments for September and October 2012 
(id. at 1), this period remains important to the overall MCC/EMT claim. Events of this 
time are relevant to appellant's decision to install MCC despite government objections. 
The level and type of effort and alleged actual costs are used by appellant in contesting 
the reasonableness of the government's use of compiled data from the RS Means 
handbook 5 to determine how much (if anything) L WJV is entitled to recover. 
G. The Period of Initial Installation of MC Cable in Concealed Spaces 
I. Daily Reports from the Government, LWJV, and Worch Electric 
Regarding the Initial Installation of MC Cable 
21. James Neary, a former Navy Seabee and experienced construction 
representative for the government, was on this job daily as an inspector. He spent 
80-90% of his time observing contract performance, prepared the government's daily 
Quality Assurance Reports (QARs) relating to the work, and reviewed the contractor's 
daily-Quality Control Reports (QCRs). (Tr. 3/6-13) We find him to be a credible 
witness, particularly with respect to the contractor's execution of the work. 
22. The QARs include information on government instructions and contractor 
responses, and progress of the work (see, e.g., R4, tab 63, QARs from September 1, 
2012 - May 4, 2013). QCRs, which were routinely signed by John Sloss as LWJV's 
"QC Representative" from September 2012 through May 2013, furnish detailed daily 
information about job progress by LWJV and its subcontractors (tr. 1/97-105; R4, 
tabs 64-72, especially tab 64 at 46, 49, 52, 54, 59, 62, 66, 70, 72, 77, 80, 83, 86, 94 
from September 11 - October 3, 2012, during the time of MCC installation and 
5 This reference is to the publication "RSMeans Building Construction Cost Data 
2012, 70th ed." (hereinafter RSMeans). As noted by Mr. Worch regarding his 
own claim tally using that information, RS Means ·'is universally accepted by 
the [Corps] as labor and costs for installation.'' (R4, tab 60 at 1) 
6 

demolition). The printed government form upon which the QCR is prepared includes 
the "contractor certification" that "this Report is complete and correct and all 
equipment and material used and work performed during this Reporting period are in 
compliance with the contract plans and specifications, to the best of my knowledge, 
except as noted above." (R4, tabs 64-72) 
23. Among information appended to the QCRs are invoices for materials and 
equipment, sign-in sheets for meetings, and ·"Contractor Production Reports" (CPRs) 
that provided a detailed ·"Daily Log of Construction." CPRs from Worch Electric for 
September-October 2012 were signed by Todd Wheeler. (See, e.g., R4, tab 64 at 6, 
13, 17, 20, 25, 4 7, 50, 55, 63, 67, 73, 78, 81, 84, 87, 95, tab 65 at 3, 6, 9, 12, 20, 27, 
30, 33,42,48,53,56,66, 75, 78,81,84, 87, 94) 
2. The Parties' September -I, 2012 Preparatory Meeting 
24. At a September 4, 2012 preparatory meeting, Mr. Wheeler represented 
Worch Electric, and Jonathan Rozenblat and Mr. Neary were among government 
attendees; Christian Worch was not present (R4, tab 64 at 9-10). The parties 
"reviewed the specifications for the underground electric and happened to read 
through the same spec section that was for overhead electric which mentioned MC 
cables." Mr. Rozenblat expressed concern at the meeting over Worch's anticipated 
use of MCC in areas the government considered to be concealed spaces. (Tr. 2/148) 
Mr. Wheeler related this to LWJV and Worch in a September 7, 2012 email. 
Referencing specification§ 26 20 00, 13.1.3.2, he advised that the government is 
"limiting MC to walls [but] Worch Electric is stating MC can be installed in all areas 
concealed by ceiling and walls" (tr. 2/149-50; R4, tab 50 at 5-6). We find that 
appellant knew of the government's disagreement with Worch's planned installation of 
MCC as of the September 4, 2012 preparatory meeting. 
3. Initial Delivery and Installation of MC Cable to the Jobsite 
25. According to Mr. Worch, 6,000 LF of MC cable was delivered to the 
jobsite on September 6, 2012, with another 10,000 LF delivered "another week or 
two later I believe" (app. reply br. at 10, ACSOF 124 (citing R4, tab 42 at 245); 
tr. 1/150, 153; see also R4, tab 42 at 158). 
-I. The Parties' September 10, 2012 Preconstmction Meeting 
26. Attendees at a September 10, 2012 preconstruction meeting regarding 
overhead electric work included Mr. Sloss and Michael Boettcher for L WJV; only 
Mr. Wheeler was there for Worch Electric. Messrs. Neary and Rozenblat, David 
Walters, and Imran Kahn represented the government; the latter two are electrical 
experts from the district's quality management branch. (R4, tab 64 at 27; tr. 2/152) 
7 

27. Mr. Sloss included an agenda item about MCC to try to ''cover everything 
that would arise out in the field to the best of our ability at that point in time." He 
testified that the document at Rule 4, tab 64, page 28, carries his handwritten remark 
"MC cable allowed." Mr. Sloss said he made this notation because the issue had been 
raised at the September 4, 2012 "prep meeting [and] there's been [an] issue on other 
projects with using it .... I put this note in here because it was brought up, and we talked 
about [how] we had to go back and check on that because it wasn't in the specification 
itself." (Tr. 1/74-75) We find that Mr. Sloss's notation does not substantiate that the 
government was in agreement with Worch's installation of MCC in concealed spaces but 
that LWJV knew of the government's continuing objections to that use. Mr. Sloss's 
handwritten notes and testimony show that appellant understood that LWJV "needed to 
create an RFI [Request for Information] to try to get clarification on this" (id). 
28. Appellant attempted to buttress its assertion that it "was critical that Worch 
start work immediately after the Sept 10, 2012 meeting" by testimony from Mr. Sloss. 
He said that "At this time, the ceilings were very congested with cable trays, duct 
work, sprinklers, etc." and that "I've never seen so much duct work, so much cooling 
put in below the floor in my life." Mr. Sloss said he was concerned "because 
additional duct work, fire, and everything else would be installed after the MC cable.'' 
(App. reply br. at 11, ACSOF ,r,r 29-30 (citing tr. 1/78-79, 82-83, 143)) While this 
does not establish that it was essential for Worch Electric to install MCC (as opposed 
to EMT) prior to or immediately following the September 10, 2012 meeting, it does 
show that the contractor was aware the job required significant installations by other 
trades into the above-ceiling and below-floor spaces, and of the need to prosecute its 
work in a coordinated fashion. 
29. The timing of the September 10, 2012 meeting does not warrant a 
determination that it was urgent for Worch Electric to then aggressively install MC 
cable rather than submit an RFI and await the government's response. There is no 
proof beyond Mr. Sloss's assertion that a "prepatory [sic] meeting is always held 24 to 
48 hours before the work starts" (see app. br. at 13, ,r 47 (citing tr. 1/73)). We find more 
credible Mr. Neary's testimony that this meeting is to be held within "30 days'' before the 
start of a "definable feature of work," is not a contractual requirement, and the contractor 
was responsible for scheduling the meeting (tr. 3/124-25). 
5. The Contractor's Request for Information No. 0206 and the Government's 
Response 
30. On September 13, 2012, LWJV submitted RFI No. 0206 (RFI-0206) using 
a standard government form. The contractor sought "confirm[ation] MC Cable can be 
installed for single phase circuits in areas where concealed by ceilings, floors, or walls 
where installed by National Electric code article 330 including ACT DROPPED 
CEILINGS." LWJV warned that"[ o ]nee the finish of the building is installed ( drop 
8 

ceiling; raised floor; or drywall) the MEP will be rendered inaccessible without climbing 
over or removing obstacles and using portable ladders." (R4, tab 13 at 7) 
31. The government replied on September 20, 2012, to the RFI. It disagreed 
with the contractor and said that "ACT Ceilings are not permanently closed up and are 
considered accessible. Refer to the NFP A 70 handbook for fmther information. MC 
cables are not permitted per the specification in accessible spaces.'' The government 
limited the use of MCC to "lengths of 3 to 6 feet" that were "within drywall partitions'' 
and said it should be allowed a credit for its use in "recessed lighting in ACT ceilings.'' 
(R4, tab 13 at 7-8) Printed in bold and all capital letters on the RFI form is the 
instruction that contractors are to notify the contracting officer's representative (COR) 
if it considers the government's response to be a changed condition (id at 7). 
32. Worch Electric on September 26, 2012, told LWJV that it disagreed with the 
government's response to RFI-0206 and denied any credit to the government. Worch 
provided notice that it would continue installing MCC until notified in writing to 
perform the work in an alternative manner at an additional cost to the government. (R4, 
tab 13 at 2) LWJV forwarded this letter to the government on October 1, 2012 (id at 1). 
6. Worch Electric 's Installation of MC Cable in Concealed Spaces 
33. There is controversy over when Worch Electric first installed MCC in 
concealed spaces, and proof of time devoted to this activity. Appellant says that "[ o ]n 
September 3, 2012, LWJV and Worch started installing MC cable in the 'concealed 
spaces' above the suspended ceilings utilizing rolling scissor lifts for access to the tall 
ceilings" (compl. 119; see also tr. 1/149). Appellant's brief describes a more 
preliminary effort: "L WJV and Worch started preparing to install[] MC cable in the 
'concealed spaces.'" It also says that the first MC cable was delivered to the site on 
September 6, 2012. (App. br. at 12, 1142, 44) 
34. The contractor's QCRs do not support a finding that Worch Electric was 
engaged in installing MCC as appellant suggests. QCRs for September 4-26, 2012, 
consistently record that the subcontractor began to install lightning protection and 
exterior work such as exterior lighting and exterior card readers (R4, tab 64 at 4-75), 
while QCRs for September 24-26, 2012, added "temporary wiring" to this 
(id at 76-81 ). Although MCC installation is not indicated, the QCRs begin to show 
"inside conduit prep'' on September 26, 2012 (id at 82, 84 ). 
35. The work listed by the contractor in its QCRs is consistent with the 
testimony of Mr. Neary, who said that prior to the September 10, 2012 preconstruction 
meeting, W orch Electric had done other preparatory work. This included "running 
conduit for the lightning protection and running conduit for the card readers and the 
9 

grounding system right outside the exterior of the building.'' (Tr. 3/26; see also similar 
description at R4, tab 63 at 6, tab 64 at 4, 6, 11, 13, 15, 17-20) 
36. We are persuaded by the QCRs and testimony of Mr. Neary, which is 
supported by contemporaneous documentation, that W orch had not installed MCC 
prior to the September 10, 2012 preconstruction meeting, and that the project was then 
without a complete roof that affected concealed spaces. Nor is there proof Worch 
had begun installing MCC by September 20, 2012, when the government responded 
to RFI-0206 by rejecting the use of MCC in concealed spaces. We find there is 
inadequate proof that Worch Electric installed MCC before September 26, 2012 (R4, 
tab 64 at 82 ), and possibly not even by then as the first mention in the QCRs of MCC 
for Worch is not until October 3, 2012 (R4, tab 65 at 7). We accept the statement of 
Mr. Neary, who said that the government would not in any event have permitted the 
contractor to proceed with MCC installation before the end of September 2012, as 
L WJV had not furnished required information pertaining to safety, the plan of work, 
and materials to be used. All of these had to be approved by the government before 
the disputed work was begun. (Tr. 3/33, 36, 41-42; see also exs. G-3, -4, -7) 
37. By letter dated October 1, 2012, Mr. Sloss forwarded Worch's request of 
September 26, 2012, that the government reconsider its rejection of MCC in concealed 
spaces (R4, tab 50 at 10-19). 
38. After Worch Electric elected to install MCC contrary to direction, the 
government on October 15, 2012, issued "QA Deficiency item," No. QA-00016. The 
problem was described as "MC cable is being installed as home runs and is only 
allowed as branch circuits. Refer to [RFI-0206] for allowable uses" and its status as 
"Not Reported Corrected." (R4, tab 63 at 42) 
39. On October 17, 2012, COR Oris Clary replied to LWJV's letter of October 1, 
2012, and reiterated the government's September 20, 2012 response to RFI-0206. He 
noted that "[i]n your letter [Worch] continues to state that they are proceeding with the 
installation of MC Cables per how they feel these definitions are defined, and not how 
NFPA 70 defines them." COR Clary warned LWJV against continuing this installation, 
as the government "considers this work as being deficient'' and "does not pay for 
deficient work." He "hereby direct[ed]" the contractor to proceed in accordance with 
government instructions, and advised that "contract clause 252.243-7002" gave L WJV 
"the option to submit a Request for Equitable Adjustment [REA] if deemed 
appropriate.'' (R4, tab 50 at 43-44) 
40. The contractor's QCRs of October 15-18 and 22, 2012, show that Worch 
was installing branch circuit MCC despite government repeated direction not to do so 
(R4, tab 65 at 51, 53-54, 56, 59, 61, 64, 66, 73, 75). Worch on October 25, 2012, 
notified L WJV that it disagreed with the government's interpretation of the contract; 
10 

while it agreed to comply, it also reserved the right to request an REA for its increased 
costs of substituting EMT (R4, tab 42 at 11-12). The QCRs relate that Worch worked 
on-site on October 23-26, 2012, but do not state that MCC was involved (R4, tab 65 
at 76-87). No work was performed October 27-30, 2012 (id at 88-91). 
H. Worch Electric 's Demolition of MC Cable in Concealed Spaces 
41. L WJV' s QCR of October 31, 2012, is the first to mention ·'MC demo'' 
(R4, tab 65 at 92) and that effort is also reported for November 1 and 5, 2012 (R4, 
tab 66 at 1, 3, 9, 11), but not thereafter. We find there is insufficient proof that \Vorch 
engaged in MCC demolition before October 31, 2012, or past November 5, 2012. 
42. According to Mr. Worch, his company expended 360 hours demolishing 
MCC (app. br. at 15-16, ,r 62 (citing tr. 2/33; R4, tab 43 at 54)). We understand this to 
mean that appellant seeks to recover only for MCC-related work through October 28, 
2012, as no later time sheets were cited. Appellant acknowledges that it received a 
progress payment for this month (fmding 93). We also find that appellant bears 
responsibility for this expense, as it acted against government direction in installing 
MC cable in concealed spaces; had it not ignored that instruction, there would have 
been no need to later demolish it. 
I. Worch Electric 's Replacement of MC Cable in Concealed Spaces with EMT 
43. In addition to labor, L WJV claims extra costs for greater and at times 
different materials, equipment, and other costs associated with the change from MCC 
to EMT. These include $142,331.00 in materials; fuel expenses for Mr. Wheeler of 
$1,297.68 and for Mr. Waltrup of $2,825.65; $1,291.00 for storage rental; and 
equipment rental of $47,594.58 that includes such items from vendor Sun Belt as lifts 
(R4, tab 42, ex. G, tab 44 at 2; tr. 2/87). Mr. Worch testified that the costs of EMT 
installation were approximately three to four times more than for MC cable (ex. A-8 at 
3; R4, tab 44 at 8; tr. 2/37-40, 82-87; see also app. br. at 5-6 and app. reply br. at 3-4).6 
44. Worch determined its labor costs by multiplying its asserted 10,583.5 hours 
of labor at the "Electrician Average" hourly rate of $47.42. It adds to that a total of 
$236,132 for a "Labor Burden" comprised of "'Labor insurance/taxes" at 36. 72% 
($184,287); "Safety" at 2% ($10,037); "Expendable Tools & Storage" at 5% 
($34,308); and "As-Builts'' at the price of $5,000. (R4, tab 42 at 345) 
45. Although the claim includes summaries of labor hours by pay period (R4, 
tab 42, ex. A at 54-111), and its statement of "Monetary Quantum" associates 10,583.5 
6 We note that fuel costs were reduced from amounts asserted in the January 21, 2014 
claim (see finding 68). 
11 

labor hours with the "Constructive change for installing [EMT] conduit vs. MC cable 
in ceilings and below raised floors'' at an unburdened ·'Labor Cost" of $501,870 (R4, 
tab 42, ex. H at 345-46), L WJV does not clearly segregate its labor costs for installing 
EMT in its claim from other work (see R4, tabs 42, 44 passim; see also app. br. and 
app. reply br., passim). 
46. As to the greater degree of labor needed to install EMT compared to MCC, 
Worch Electric assessed its workers' relative productivity by dividing the total LF of 
MCC, and of replacement EMT, installed in concealed spaces by the number oflabor 
hours claimed for each installation. Using this rubric, appellant calculates its 
installation rate of 12.5 LF/labor hour for MCC (16,000-;- 1,200) and the lower rate 
of2.88 LF/labor hour for 30,000 LF of EMT (labor hours not specified). (Tr. 2/31-39 
referencing R4, tab 42, ex. A at 54) 
4 7. We have expressed reservations over the labor hours alleged by W orch 
Electric for MCC installation, and now do so regarding its demolition. We further 
question the wire quantities used as urged by LWJV, as the 16,000 LF supposedly 
installed prior to demolition is based upon the assertion ( without proof) that W orch 
installed all of the 12-2 MCC for which it was invoiced by its suppliers (see R4, tab 42 
at 245 indicating shipment of 6,000 LF of 12-2 MCC to Worch Electric at Ft. Meade 
and tr. 1/153 regarding delivery of an additional 10,000 LF). 
48. We find that appellant's proposed installation efficiency rates of 12.5 LF of 
MCC and 2.88 LF of EMT per labor hour are insufficiently grounded in credible proof 
to accept. The uncertainty in the numbers assumed in the underlying calculations does 
not adequately support appellant's contention that the EMT installation was four times 
( or some other multiplier) more costly than MCC. And, as we have found that L WJV 
is responsible for the costs of installing and demolishing MCC, we further find that it 
alone is responsible for the increased expenses in installing EMT that are attributable 
to the· greater difficulty of its having to substitute EMT in a more congested work 
environment. 
J LWJV's Initial Claim Dated January 21, 201-1 
49. On January 22, 2014 (R4, tab 42 at 2, 4), the government received Worch's 
January 21, 2014 request for a COFD (id). The claim was "related to Government 
directed installation of EMT conduit for Power Wiring in lieu of MC Cable as originally 
specified," and was certified by Randy Lebolo, the president of "Lebolo Construction 
Management, Inc." (id. at 4). Appellant sought $1,258,798 for "Worch Total Claim"; 
$107,250 for "Lebolo Watts [home office overhead or HOOH]@ 8.52%"; and $136,605 
for "Lebolo Watts Profit@ 10%'' for a "'Total Claim Amount Submitted" of $1,502,653. 
L WJV did not seek bonding costs. (Id at 4-6) 
12 

50. Appellant apparently attempts to justify a 10% profit rate by noting that 
"Lebolo Watts was a[n] 8(a) contractor'' and ·'Ms. Grundy recognized the Project was 
high risk'' (app. br. at 26, ,r 107); however, the latter assertion is inaccurate. In 
response to the question from appellant's counsel "Wasn't there a very high risk that in 
2012, the fall of 2012, the government took the position that [EMT] was required by 
[the] contract?'' Ms. Jo Ann Grundy, Bay Area office engineer, replied ·'Yes.'' 
(Tr. 1/118) We find that her agreement that the government wanted EMT is not shown 
to be the same thing as categorizing this as a "high risk'' contract for purposes of 
calculating a higher rate of profit. 
51. The January 21, 2014 claim had ten attachments (R4, tab 42 at 17-346). 
Attachment 10 (id. at 49-346) is entitled ·'~fonetary Entitlement and Backup.'' Among 
these are exhibits A (Timesheets-Craft); B (Timesheets-Supervisor); C (Material 
Cost); D (Fuel Expense); E (Fuel Expense); F (Storage Rental); and G (Equipment 
Rental) (id. at 53-342). 
52. Attachment 10, exhibit H ·'Monetary Quantum" appears twice in the initial 
claim (see, e.g., R4, tab 42 at 50-52, 344-46); for consistency, we cite to the latter 
range. Worch includes a two-page chart containing a "Recapitulation'' of costs arising 
from the "Constructive change for installing EMT conduit vs. MC cable in ceilings 
and below raised floors.'' This claim seeks $1,258,798 for material and equipment; 
storage costs of $221,738.64; and labor costs of $501,870. W orch added to this 
HOOH at 15% ($145,624) plus 10% profit ($111,645) and 2.5% bond ($30,702). 
Worch credited the government for $26,420 in work and materials that were 
eliminated after MCC installation in concealed spaces stopped. (Id at 345-46) 
53. Mr. W orch testified regarding the number of labor hours allegedly devoted 
to MCC and EMT work respectively. 7 Mr. W orch testified that his company spent 
about 1,281 hours through the week ending October 28, 2012, installing and 
demolishing MCC, and that the latter took about 360 hours (tr. 2/33). 
54. We regard Mr. Worch's testimony and proffered labor summaries as 
problematic for several reasons. There is inadequate evidence that Mr. Worch had 
sufficient involvement to support the conclusions appellant urges. He agreed that he 
was "there probably" at the WSOC work site weekly (tr. 3/320); by contrast, 
Mr. Neary, who was on-site daily, said that he remembered seeing Mr. Worch "on site 
less than a handful of times ... throughout the project" (tr. 3/23-24). We give greater 
weight to Mr. Neary's observations. 
7 Appellant subsequently reduced labor costs for supervisors Todd Wheeler by 
569 regular and 70 overtime hours, and Steve Waltrup by 36 hours (app. br. at 5). 
13 

55. Nor does appellant offer evidence in support of its attempts to buttress 
Mr. W orch' s testimony and proffered labor summaries by asserting that 
''Christian W orch and Andrea Gaitan periodically checked the accuracy of the field 
reporting of manhours and material to the cost codes'' (app. br. at 6, 17). Although 
Mr. Wheeler was said to have been at WSOC for W orch Electric on a daily basis 
(tr. 2/113-14) and regularly signed the CPRs reporting the company's progress (see, 
e.g., R4, tabs 64-65, passim), neither he nor Ms. Gaitan testified, offered an affidavit 
or declaration, or other proof. We find appellant's labor compilations of limited 
probative value as there is insufficient evidence to support their accuracy or show by 
whom these were prepared or when or what supporting documentation was used. 
K. The Initial Independent Government Estimate of July 11, 201-1 
56. The government's Pre-Negotiation Objective Memorandum (POM) of 
December 2, 2014, details the claim background and the government's analyses, and 
compiles key documents used by the government in negotiations (R4, tab 34 ). The 
POM shows the government found merit to the MCC/EMT claim because the 
specifications did not exclude MCC in concealed spaces, and concluded that the 
contractor was entitled to reasonable costs. It noted that the government had prepared 
an initial IGE on July 11, 2014, held an interim scoping meeting with LWJV, and later 
revised the IGE as additional information became available. 8 (Id at 2-5) The POM 
was prepared by Ms. Grundy and was reviewed by, among others, Ms. Christanne E. 
Haught, chief, office engineering, and CO Gary A. Faykes (id at 13-14; tr. 3/219-21). 
57. Ms. Grundy, who has a degree in biology with minors in chemistry and 
geography, has experience in the private sector as well as local, state, and federal 
governments with civil works and environmental projects. As office engineer, she 
evaluates and negotiates REAs then executes contract modifications. She was a 
member of the Technical Review Board that evaluated proposals for this contract, and 
was involved in a similar project at Ft. Detrick, Maryland. (Tr. 3/214-21) 
58. Mr. In Soo Park, an electrical engineer in the Bay Area office, was tasked 
by Ms. Haught with preparing an IGE for L WJV' s claim. Mr. Park has two degrees in 
electrical engineering and a general master electrician license. He ran an electrical 
business from 1986 to 2004, then went to work for the government. Mr. Park served 
as a resident engineer in Iraq for four years and worked on such projects as a natural 
gas power plant that provided electricity to about 400,000 people, including electrical 
8 The government prepared separate IGEs for the MCC/EMT claim underlying 
ASBCA Nos. 59738, 59909 and the "telecom claim'' that was the basis for 
ASBCA Nos. 59739, 59910. As stated in footnote 1, the appeals arising from 
the latter claim, which was also discussed in the POM, were dismissed as 
settled by Mod. No. POOOOl. 
14 
f 

transmission and distribution lines. He has been a technical expert on electrical 
matters on several complex contracts. (Tr. 3/165-71) 
59. Nlr. Park's initial IGE, dated July 11, 2014, and approved July 22, 2014, is 
included in the POM (R4, tab 34 at 40-64). For the MCC/EMT claim, he reviewed 
single phase circuits, then measured the wire needed from ''last device to all the way , 
back to the panel'' (tr. 3/173-79). Mr. Park did not estimate costs by counting the 
number of circuits, as appellant says it did (tr. 3/287-88). 
60. As shown on his worksheet, summary sheet, and reference materials 
appended to the POM, Mr. Park prepared separate estimates for the use of MCC and 
EMT in the controverted areas. Referencing contract requirements, he determined the 
total amounts and types of materials and equipment needed, then calculated a price for 
each using data from, among other sources, the 2012 RSMeans estimating handbook. 
(Tr. 3/173-79; see also R4, tab 34 at 40-64) Mr. Park's worksheet summarizes the 
information he reviewed in evaluating the claim, which included the installation and 
demolition of MCC and substitution using EMT (R4, tab 34 at 42-64; tr. 3/175-76). 
61. The IGE's remarks state that ''Common line items such as receptacles, 
lights, and common fittings and materials are not included in this estimate. This IGE 
should cover MC only work vs. rvtc & ErvtT combined work." (R4, tab 34 at 40) 
Mr. Park estimated the respective labor costs for these installations, again referencing 
RSMeans data. His worksheet shows that he multiplied typical labor rates by the 
weighted guidelines of 0.00727 for installing #12 wire for conduit and 0.03137 
for installing MCC, but used the higher multiplier of 0.062 in pricing the more 
labor-intensive EMT. Mr. Park added the cost of "fittings and hangers for 50% of 
EMT." (Id. at 41-42) He explained that RSMeans labor factors included aspects of 
working with these materials from delivery to installation (tr. 3/177). Mr. Park added 
percentages for overhead, bond, and profit to subtotals for labor, materials, and 
equipment to arrive at totals for both approaches (tr. 3/173-85; see also R4, tab 34 
at 40-64). 
62. Mr. Park calculated that it should have cost $305,208 to perform the 
controverted work using EMT, but just $153,944 to have used only MCC above the 
ceilings and below raised access floors. He subtracted the cost of installing MCC only 
from that of using EMT, and determined that appellant's cost of complying with the 
government-ordered change should have been $151,264. (R4, tab 34 at 40; tr. 3/183) 
63 .. After L WJV provided the government with an alternative cost proposal 
based upon RSMeans data for comparison purposes with the IGE (tr. 3/224-25; R4, 
tab 34 at 3-4, 73-75), the parties held a scoping meeting on August 12, 2014, to discuss 
the significant differences between the MCC/EMT claim, the contractor's alternative 
estimate using RSMeans factors, and the IGE. Ms. Grundy and Messrs. Neary, Park, 
15 

and Rozenblat represented the government. Messrs. Christian Worch and Denny Worch 
attended on behalf of appellant, while Messrs. Lebolo, Shane Bauer, Boettcher, and 
Chuck Conway participated by telephone. (R4, tab 34 at 3) 
64. The government challenged Worch's labor and material costs as too high. 
Among questioned costs was $64,085.26 for rental equipment, especially charges for 
lifts and ladders that were also needed for unchanged work (tr. 3/227-29; R4, tab 34 
at 75, tab 42 at 300-42). 
L. The Parties· Scoping Nfeeting of August 12, 201-1-
65. Mr. Park said that he learned at the scoping meeting that W orch Electric had 
installed about 30% of the MCC in concealed spaces before having to demolish, then 
replace it, with EMT. He located additional single phase circuits running to mechanical 
equipment that were affected by the change, and got additional information regarding 
work in concealed spaces which included high ceilings and pedestal floors. (Tr. 3/186-88; 
R4, tab 34 at 4) 
66. Mr. W orch responded to government questions regarding the type and 
quantity of materials used. According to the POM, he "explained that 380 single 
phase branch circuits were counted and 100 [LF] were estimated per circuit resulting 
in 38,000 LF of wire and 28,500 LF [of EMT] per home run, not counting the 
peripheral" installations. Mr. Worch said that the company installed MCC for 
"approximately six weeks, which included running it within the walls, running 
home runs, and some ceiling work." He advised that "it took about 200 hours [and] 
3 weeks" to remove MCC from concealed spaces, and "that construction of the raised 
floor in the equipment room began at the end of February and was complete by the end 
of April 2013." Mr. Worch estimated "that it took about 3.5 months to install the 
EMT in the ceiling," which was "completed in early May'' after being interrupted by 
work on the raised floor installation, which was on the critical path. He said that, 
absent the government-directed change, the work would have been completed by the 
end of December 2012. (R4, tab 34 at 4) 
67. Although the MCC/EMT claim and IGE calculated the cost of the changed 
work by totaling requirements for materials, equipment, and labor then adding markups, 
these were formulated using different assumptions and came to different totals 
(tr. 3/186-87). At the conclusion of the meeting, the contractor agreed to revisit its 
claim and the government to reevaluate the IGE (tr. 3/229). 
M Appellant's Revised Claim of August 1-/., 201-/. 
68. On August 14, 2014, Mr. Worch emailed a revised claim to Ms. Grundy. 
Two items were included: the first was the "MC change order" which gave "the 
16 

breakdowns of the materials and associated costs and labor provided [using RS] 
Means." The second was "the Recapitulation sheets from the claim" that Mr. Worch 
revised by "deleting the MC cable portion and altering some of the other expenses 
based on the dates of the claim." He summarized the revisions as: ''tak[ing] out all the 
MC cable that was originally in the change, that included material cost and labor [but] 
add[ing] some back in for Fixture whips, 5,000 ft.'' He said that he revised exhibits to 
attachment 10 of the claim as follows: Exhibits A Timesheets-Craft and C Material 
Cost were broken down into "material used on this change and the material cost and 
labor hours [that] were extended using [RS] Means"; "maintain[ing] the MC credit 
of what was not installed either above [the] ceiling or below [the] raised floor''; 
and "add[ ing] some time not captured to rework what. .. was already done in" 
September and October 2012 "to correct due to the change in scope and installation 
methods [which] has nothing to do with the demo of the MC cable in the ceiling." 
Exhibit B Timesheets - Supervisor was changed to include only ''Steve Waltrup's 
hours [for] the time associated with the change after the stop work order was issued 
(10/21/12-5/5/13)." Worch halved the amount sought for fuel for Mr. Wheeler in 
exhibit D Fuel Expense. Costs for rental containers in exhibit F Storage Rental and 
exhibit G Equipment Rental were adjusted to "reflect those months only after the stop 
work order was issued [from] (11/12-5/13)." (R4, tab 289 at 1, see also at 3-7) 
69. According to Mr. W orch, after these changes were made, he estimated the 
contractor incurred $1,149,509 in additional expenses and 9,526 labor hours by using 
RSMeans data. Mr. Worch said the company had spent $1,161,160, worked 10,125 
more hours, "install[ ed] a ton of MC cable above the ceiling prior to the stop work 
order," and was seeking its "actual costs" that had "caused great financial strain" on 
the company. (R4, tab 28 at 1-2) 
70. Mr. Worch testified that there was "Not a chance'' the claim could 
accurately be calculated using data from RSMeans, although he had attempted to do so 
to allow a better comparison with the government's IGE. Mr. W orch explained that 
RSMeans did not accurately capture the subcontractor's costs because this was rework 
and not an initial installation. Because other trades had begun work before EMT was 
substituted, there was other "work that was in our way, [and] EMT has to be 
supported" differently than MCC. "We can't support it from duct work; we can't 
support it from any other supporting equipment from any other entity.'' (Tr. 1/166) 
To install the separate EMT supports, W orch Electric had to get a "person up in 
between this duct work somehow, some way with man lifts, scissor lifts, figure out the 
best routes to take our conduits'' (tr. 1/167). He said this rework using rigid EMT 
required more time, labor, and equipment than installing MCC, and Worch Electric 
"got behind" in "trying to fit [the EMT] in around everybody else[]" while working in 
a "congested" area (tr. 1/168-69). 
9 The material in Rule 4, tab 28, also appears at Rule 4, tab 59, albeit in a different font. 
17 

71. Mr. W orch pursued the point with Ms. Grundy in a letter of August 20, 
2014, that his company was entitled to recover its "actual costs" rather than an 
RSMeans estimate. He said that the claim was supported with "100+ sheets oflabor 
timesheets and actual material invoices" which reflected "actual out of pocket costs 
incurred,'' and noted that Worch Electric is "a small business electrical contractor.'' 
(R4, tab 29) 
72. The criticism leveled by appellant against the government's use of 
RSMeans to evaluate quantum is grounded in the contractor's position that substituting 
EMT for previously-installed MCC in areas where other installations had been or were 
taking place was far more difficult than is shown in a calculation of what it would cost 
to install EMT at the outset (see, e.g., tr. 1/166-68; also app. br. at 22-23). L \VJV did 
not fault RSMeans as inaccurate for initial installation of either MCC or EMT or as a 
standard industry estimating tool. We find the government's use of RSMeans as a 
basis for calculating the IGEs, government settlement offer, and subsequent equitable 
adjustment was reasonable. 
N The Revised Independent Government Estimate of September 30, 201.f. 
73. Taking into account additional information from appellant, Mr. Park 
revised the initial IGE (tr. 3/187-88; see also R4, tab 34 at 80-93). The revised IGE of 
September 30, 2014, which is summarized in a table of the same date, determined that 
the contractor was entitled to recover $324,786 and that the "Estimated time is 
increased by 2000 hours for the single phase circuits'' (R4, tab 34 at 81 ). The table 
categorized costs for materials, rental equipment, labor, and markups for L WJV and 
Worch Electric (R4, tab 34 at 81, see also at 82-93 for supplemental calculations and 
quantities). 
74. In separate columns, the revised IGE for the MCC/EMT claim compares 
quantities identified in the initial IGE for work attributed to the change with those that 
would have been necessary without the change (R4, tab 34 at 44-45, 49-50, 81, 85). It 
estimated that the cost of using MCC was $163,944 and using MCC followed by EMT 
to be $488,730; the difference between these was $324,786 (id. at 81). The revised 
IGE added 123 receptacles (id. at 88) and took into account the cost of demolishing the 
MCC. Mr. Park doubled his labor estimate to account for work in areas with ceilings 
higher than 15 feet, and continued to base the government estimate on data derived 
from RSMeans (tr. 3/179-89). We find that Mr. Park, an experienced electrical 
engineer and former owner of an electrical company, acceptably prepared the revised 
IGE using professional judgment, information obtained from the contractor and 
contract requirements, and properly relied upon data from the RSMeans estimating 
handbook. 
18 
I 

75. On October 2, 2014, Ms. Grundy advised Mr. Worch that she was 
·'continuing to write the POM and analyze costs" and that the revised IGE was being 
routed internally for signature. She said the government was working toward 
"reach[ing] a settlement on the EMT vs. MC Cable claims." (R4, tab 30) 
76. Mr. Worch's email of October 17, 2014, criticized the revised IGE. He 
emphasized the "considerable difference" in installing MCC and replacing it with 
EMT, and provided a "Recapitulation'' comparing the installation of 1,000 LF of EMT 
and 1,000 LF of''l2/2 me cable." (R4, tab 60 at 1) He maintained that it is "about 
2.62x more in cost and labor" to install EMT than MCC, and "[t]his doesn't even take 
into account the high ceilings, demo, rework and so forth" (id.). 
77. On October 21, 2014, Mr. Worch expressed frustration over the lack of a 
response from the CO, and advised that the contractor intended to appeal the claim on 
a "deemed denial" basis if the government did not timely respond (R4, tab 31 ). 
78. On November 20, 2014, Ms. Grundy emailed Mr. Lebolo that the 
MCC/EMT claim had "been determined to be valid" and that the POM was under 
higher level review (R4, tab 32). The government issued the POM on December 2, 
2014, in preparation for final negotiations (R4, tab 34 ). 
79. In addition to recounting the parties' exchanges regarding the claim, the 
POM includes the government's proposed amount and justification for settlement. It 
provides a tabular breakdown of cost elements for Worch Electric for "Part A: EMT 
in Lieu of MC Cable for Receptacles, Lights and Mechanical Equipment" as well as 
costs for L WJV. Information for these cost elements is listed side-by-side for the IGE, 
the "Contractor's Proposal," and the "Government Objective" or target settlement 
amount. Reference notes for the "Cost Analysis Discussion" explain government 
choices for particular amounts over those claimed. This included overhead, profit, and 
bond of 10%, 9.63°/o, and 2% respectively for Worch Electric, and HOOH/G&A, 
profit/fee and bond of 8.52o/o, 7.38%, and 1% for LWJV as the prime contractor. With 
markups added, the table summarizes amounts for the MCC/EMT claim as 
$1,494,514; the IGE as $369,278; and the government's settlement objective as 
$478,037. (R4, tab 34 at 5-6) This amount exceeded the revised IGE, as the 
government wished to settle (tr. 3/227). 
0. The Parties 'Negotiations of January 8, 2015 
80. After the government did not issue a COFD, appellant appealed to 
the Board on December 12, 2014. As detailed in the government's Price 
Negotiation Memorandum (PNM) of March 3, 2015, the parties had met on January 8, 
2015. Attendees included Messrs. Lebolo, Bauer, and Conway for LWJV and 
Messrs. Christian and Denny Worch on behalf of Worch Electric. Ms. Haught, 
19 

Ms. Grundy, and Messrs. Park and Neary represented the government. (R4, 
tab 3 9 at 1-3) 
81. Ms. Grundy's comparison of the MCC/Eiv1T claim and the revised IGE 
showed considerable price disparity. She felt the claim lacked a discernible 
breakdown of change-related labor, material, and equipment, even though attachments 
included a large number of invoices (" 100 or more ... pages of material invoices with 
several items on each'') and time sheets ("there were like 88 time sheets"). Unable to 
"decipher in the claim how they arrived at their material costs and their labor hours,'' 
Ms. Grundy was concerned that L WJV may have included unrelated expenses in the 
claim. (Tr. 3/220-22) 
82. The parties conducted detailed discussions of disparities between the 
MCC/EMT claim and IGEs, and the government increased its settlement offer to a 
total of $579,874 for both the MCC/EMT claim (ASBCA Nos. 59738, 59909) and 
the telecom claim (ASBCA Nos. 59739, 59910). This included 7.38% profit for the 
prime contractor, which was calculated using weighted guidelines. (R4, tab 39 at 6) 
Ms. Grundy also testified that, in an attempt to settle the claim and as part of the 
unilateral modification later issued by the government, she had increased certain 
amounts for labor, materials, and equipment above those stated in the POM. Among 
other things, she added costs for higher ceilings, rental equipment, "layout, demo, 
engineering and drafting [plus] overtime, rework of MCC that appellant needed to tear 
out, and foremen costs of Waltrup and Wheeler" and MCC work including demolition. 
(Tr. 3/234-49; see also R4, tab 34 at 3-5, 13, tabs 36-39; ex. G-17) 
P. The Contracting Officer's Final Decision and the Unilateral Contract Modification 
No. POOOOJ 
83. After LWJV rejected the government's settlement offer, the government 
issued unilateral contract Modification No. POOOOl (Mod. POOOOl) on March 11, 
2015, which increased the contract price by $579,874 for the "REA- EMT in lieu of 
MC Cable'' (R4, tab 40). Ms. Grundy testified regarding the cost elements and 
amounts allowed for each that were used by the government in developing its offer of 
$579,874 to appellant, which included $425,538.59 for the MCC/EMT claim 
underlying ASBCA Nos. 59738 and 59909. In an attempt to settle, the government in 
Mod. POOOO 1 upwardly revised certain costs beyond the previous IGEs. This included 
money for material, equipment, labor, supervision, and other costs as discussed in the 
POM, PNM, and IGEs. The government allowed L WJV a 10% overhead, as 
previously used in the contractor's other proposals; relied on profit guidelines to 
20 

calculate a 9.63% profit; and gave Worch Electric the 2% bond that was requested in 
the claim. (Ex. G-17; R4, tab 39 at 6; tr. 3/251-61) 10 
84. On the same date as the contract modification, CO Faykes on March 11, 
2015, issued a COFD on LWJV's claim (R4, tab 41). He determined that the 
contractor had demonstrated that the government constructively changed the contract 
by requiring the replacement of ~1CC with EMT in concealable spaces and that L WJV 
had incurred additional costs. CO Faykes found claim documentation to be ·'deficient 
because it does not segregate costs due to the constructive change, it does not show 
that the installation of MC cable aligns with the time periods claimed, and it includes 
costs that Worch would have incurred had there not been a constructive change.'' He 
criticized L WJV for failing to submit proof of reasonable actual costs and not 
"connect[ing] the time period in which its claimed costs were incurred to its 
initial installation of MC cable or its replacement of MC cable with EMT conduit." 
(Id at 11-12) In the final decision, CO Faykes compensated LWJV a total of 
$579,864 for the MCC/EMT and telecom claims. He relied upon information 
developed by Ms. Grundy in the POM and PNM and Mr. Park in the IGEs (id at 7-12) 
that included costs for MCC as well as EMT (see findings 73-74, 79, 83 n.10). 
85. Among other things, Mod. POOOOl (R4, tab 40) included costs for 
28,600 LF of EMT and 100,000 LF of wire (tr. 3/248). It provided compensation for 
600 junction boxes; the IGE had included 455 whereas appellant had sought 800 
(tr. 3/243, 256). The modification allowed 368 hours for Mr. Waltrup (tr. 3/256). It 
disallowed certain fuel costs, as Worch's supervisors Messrs. Wheeler and Waltrup 
were determined to have also engaged in non-change related work on-site (tr. 3/257). 
Mod. POOOO 1 decreased the costs of rental equipment, as that too was needed for work 
unrelated to the change to EMT (id). Worch Electric was allowed a 10% overhead 
instead of the 15% requested, as the lower figure had been used in prior claims and the 
10 We note minor disparities in sums, depending upon the document cited and as 
espoused by the proponent. Mod. POOOO 1 stated that the equitable adjustment 
was for $579,874 (R4, tab 40), the same amount cited by LWJV (see, e.g., 
app. br. at 3) and the government (see, e.g., gov't br. at 39). This is $10 more 
than stated in the COFD (R4, tab 41 at 1, 12). In addition, there is another $10 
discrepancy in the amount paid for the telecom claim, which is no longer at issue 
but figures into the parties' calculations of the amount in controversy. 
According to the government, it paid $83,998 on the telecom claim (see, e.g., 
gov't br. at 1) and appellant says it was $83,988 (see, e.g., app. br. at 3). For 
purposes of consistency in the decision (if not in the record or the parties' 
briefs), and because the differences are de minimus, we adopt $579,874 as the 
amount of the overall equitable adjustment; $83,988 as the amount for which the 
telecom claim was settled; and find that the government paid $495,886 toward 
the MCC/EMT claims, which is the difference between these two amounts. 
21 

higher amount was not adequately documented. The government used weighted 
guidelines in determining this amount. (Tr. 3/258-59; see also R4, tab 34 at 10) 
Mod. POOOO 1 gave L WJV an overhead rate of 8.52%, as requested in the claim. 
Worch Electric was allowed a 2% bond, and no bond was permitted for L WJV as this 
was not included in the claim. (Tr. 3/258-59; see also R4, tab 42 at 345-46) 
Q. Appellant's Revised Claim Submission Dated January 8, 2016 
86. Appellant revised the MCC/EMT claim days prior to the hearing; according 
to the later-updated Rule 4 file index, it was prepared on January 8, 2016 (R4, tab 44 ). 11 
Following the government's objections and at the direction of the Board, LWJV 
furnished a "Summary of Changes in Tab 44, Claim No. l'' dated February 1, 2016 
(id. at 7-9). 
87. In exhibit Hof the January 8, 2016 claim revision, LWJV decreased its 
labor hours from 10,583.5 to 9,944.5, and lowered its material costs from $221,738.64 
to $195,338.53 (R4, tab 44 at 9). Worch says that it cut labor costs and reduced the 
fuel expenses for Messrs. Wheeler and W altrup because these "were associated with 
other contract installation" between September 3, 2012 and May 5, 2013. Worch 
also decreased costs for general materials and lift rentals. (Id. at 8 ( citing R4, tab 42, 
attach. 10, exs. A-F)) 
88. With the addition of mark-ups and other costs, the amount now claimed by 
Worch was revised from $1,288,798 to $1,165,667. This is a net decrease for Worch 
of $123,131, although the amount of the overall claim increased due to higher markups 
for LWJV. (R4, tab 44 at 3-4, 10) Worch Electric applies the same markups there 
(id.) as it did in its initial claim (R4, tab 42 at 345), although greater overall markups 
are used when the burden for L WJV is added. This includes L WJV' s request for an 
18.03% overhead, and the addition of a .5% bond. (R4, tab 44 at 10) As in the 
original exhibit H (R4, tab 42 at 345-46), Worch's requested HOOH is shown as 15% 
and profit as 10% (R4, tab 44 at 3 ). 
89. Despite select decreases by W orch Electric, the ''Monetary Claim Recap 
for Claim No. 1" (the MCC/EMT claim) increased the overall claim as follows: 
11 In a separate and unpublished evidentiary ruling, the Board denied the government's 
motion to strike this revision to appellant's claim. This document was sent via 
email to the government at 4:58 p.m. on the last day of discovery and was not 
identified in the index or elsewhere in the submission as a revised claim. The 
Board expressed concern but denied the motion, and gave the government the 
opportunity to postpone the hearing and leeway in examining witnesses on this 
change. 
22 

A. WORCH TOT AL CLAIM 
B. LEBOLO WATTS HOOH @. 18.03% 
Subtotal: 
C. LEBOLO WATTS PROFIT @ 10% 
D. SUBTOTAL 
E. BOND@.5% 
F. TOTAL 
(R4, tab 44 at 10) 
$1,165,667.00 
$ 210,169.76 
$1,375,836.76 
$ 137,583.68 
$1,513,420.44 
$ 7 567.00 
$1,520,987.44 
90. Worch sought to justify the higher markups by saying that ·'the constmctive 
change required capital of approximately $1 million to finance the direct costs, which 
was not available to W orch Electric [so] it had to seek bank financing, assistance from 
the payment bond surety for unpaid material supplies, and unpaid union benefits.'' 
The company said it was ·'forced ... into involuntary bankruptcy'' by the "electrical 
union'' but that action was dismissed after the government unilaterally paid $579,874 12 
on the MCC/EMT and telecom claims. The subcontractor said that its financial 
problems caused its bonding company to raise its rates to 2.5% and be "restrictive in 
issuing new bonds, which, in turn, led to a huge reduction of revenues in the years of 
2014 and 2015, and a higher G&A rate on direct costs to 15%." (R4, tab 44 at 9) 
91. Mr. Lebolo testified regarding various overhead rates sought in the claim 
(tr. 2/ 16-1 7), and appellant offered a trial exhibit to support its alleged 18. 03 % 
overhead (ex. A-10). Mr. Lebolo also testified that, as an 8(a) small business 
contractor, he felt that his company was entitled to a 10% profit rate (tr. 2/9). 
R. Post-Hearing Revisions to Appellant ·s Claim 
92. Appellant's initial post-hearing brief states that it seeks "$1,025,011.44,'' 
the difference between the $1,520,987.44 sought in appellant's January 21, 2014 
submission and the "$495,875" it was previously paid through Mod. POOOO l 
(app. hr. at 3; see also gov't hr. at 1 n.3).13 
93. LWJV's reply brief further lessened the MCC/EMT claim by $115,750 
after acknowledging the contractor had received government progress payments for 
September and October 2012 which included MCC work (app. reply hr. at 1, 6-7). 
Taking into account the $115,750 credited by appellant in its reply brief against the MC 
cable/EMT claim found at Rule 4, tab 44, L WJV now calculates its claim as follows: 
12 (See finding 83 n.10) 
13 (See finding 83 n.10) 
23 

Worch Total Cost 
CREDIT FOR SEPT /OCT 2012 
Subtotal 
Home Office Overhead 
Subtotal 
Profit 
Subtotal 
Bond2.5% 
Total Worch Claim 
[LWJV] HOOH @18.03% 
Subtotal 
[L WJV] Profit @ 10% 
Subtotal 
[L WJV] Bond @ .5% 
Total 
$899,001 
- 115,750 
$ 783,251 
134,850 
$918,101 
91 810 
$1,009,911 
25,24[8] 
51,035,159 
186,639 
$L22L798 
122,180 
$1,343,978 
6.720 
S1,350,698U-11 
(App. reply br. at 7-8) (Italics and underlining added) Appellant says it now seeks "a 
total award of $854,822'' plus interest under the Contract Disputes Act of 1978 (CDA), 
41 U.S.C. § 7109 (id at 31). 
S. Summary of Claim Decreases 
94. LWJV also acknowledges that it has received payment on this claim under 
Mod. POOOOl and that this amount should be deducted from its claim (app. reply br. 
at 3 1 ). We agree with that reduction, and apply that deduction to the claim as adjusted 
by the markups allowed by the COFD in the modification and as detailed in the POM 
and PNM (R4, tab 34 at 5-6, tabs 40-41 ), with one exception. As appellant further 
reduces bond for LWJV in its reply brief to 0.5% (app. reply br. at 8), we use that 
figure in our calculations and otherwise agree with the government's markups: 
Worch Total Cost 
CREDIT FOR SEPT/OCT 2012 
Subtotal 
Overhead @ 10% 
Subtotal 
Profit@ 9.63% 
Subtotal 
Bond@2% 
Total Worch Claim 
[LWJV] HOOH@8.52% 
$899,001.00 
-115, 750.00 
$783,251.00 
78,325.10 
$861,576.10 
82,969.78 
$ 944,545.88 
18,890.92 
$ 963,-1-36.80 
82,084.82 
t-i Appellant does not state the percentages used in its calculation for overhead or profit 
for Worch Electric. 
24 

Subtotal 
[LWJV] Profit@ 7.38% 
Subtotal 
[LWJV] Bond@ .5% 
Total 
$1,045,521.62 
77 159.50 
$1,122,681.12 
5 613.41 
SJ, 128,29-/..53 
95. From this recalculation of the claim using the government's markups, 
we deduct the $495,886 which L WJV was previously paid under Mod. POOOO 1 
(finding 83 n.10). We calculate appellant's adjusted claim, taking into account the 
revisions made by appellant in Rule 4, tab 44, its initial and reply briefs and using 
markups recognized by the government except for the lowered bond for L W JV stated by 
appellant (see findings 93-94) as follows: $1,128,294.53 - 495,886.00 = $632,408.53. 15 
DECISION 
A. The Claim before the Board 
LWJV's claim of January 21, 2014 (R4, tab 42) sought $1,502,653 for the 
"Government Directed Use of Metal Clad Cable" on behalf of its electrical 
subcontractor Worch Electric, Inc. (id at 4-5). Mr. Worch stated that his company 
·'reasonably interpreted [the contract] that installation of MC Cable, limited to single 
phase branch circuits, [was] allowed to be installed in concealed spaces including 
above the suspended acoustical ceilings and below elevated access flooring." The 
subcontractor disagreed with government direction to use EMT in these areas. It 
provided notice that Worch would "continue[] proceeding with the planned and bid 
installation of MC Cable until notified in writing to install this work in an alternative 
manner," which "would be at additional cost to the [government]." (Id at 11-12) 
On October 25, 2012, Worch Electric informed LWJV of its "continuing 
disagreement" with the manner in which the government interpreted the contract, "but 
agreed to comply with the [government's] directive to remove and replace the installed 
MC Cable." Worch "reserved rights to submit a Request for Equitable Adjustment for 
both time and money for all costs and time impacts thereof.'' (R4, tab 42 at 12) The 
MCC/EMT claim includes costs for "(i) prepatory [sic] work and the installation of 
MC Cable in concealed spaces above the ceilings for lighting and power from 
September 6, 2012 through October 21, 2012; (ii) the costs of removing all of the MC 
Cable installed during that period; [and] (iii) installing rigid EMT in lieu of MC Cable 
above the ceilings and below the pedestal floor" (app. br. at 3-4). 
The government initially disagreed that the specifications permitted the use of 
MCC in concealed spaces, but reconsidered after EMT was substituted by the 
15 (SeP finding 83 n.10) 
25 

contractor. Although the COFD of March 11, 2015, found that the government's 
direction created a changed condition and that L WJV was entitled to recover, the CO 
took exception to the sum claimed. Also on the same date, the government 
compensated the contractor with $495,886 for the MCC/EMT claim in unilateral 
Mod. POOOOl. (Findings 83 n.10, 84-85) 
L WJV appeals to obtain the difference between the amounts it claimed and as 
paid by the government (finding 95), and timely proceeds before the Board under the 
Disputes clause. "\Vhen a CO unilaterally directs changes, parties often will negotiate 
quantum, i.e .. equitable adjustments in contract price, sign a modification or 
modifications altering the contract price with respect to the changes upon which they 
agree, and resolve any remaining 'quantum' issues under the Disputes clause." 
CTA Inc., ASBCA No. 47062, 00-2 BCA ,r 30,947 at 152,760 (citing JOHN CIBINIC, 
JR. & RALPH C. NASH, JR., ADMINISTRATION OF GOVERNMENT CONTRACTS 408 
(3rd ed. 1995); Bechtel Nat 'l, Inc., NASA BCA No. 1186-7, 90-1 BCA ,r 22,549 at 
113, 161-62). 
To recover on the remaining quantum, "appellant must prove that it is entitled to 
a greater equitable adjustment than [was] awarded by the contracting officer." The 
CO' s prior determination of merit does not guarantee the contractor will obtain the 
additional amount it seeks. Lovering-Johnson, Inc., ASBCA No. 53902, 06-1 
BCA ,r 33,126 at 164,172 (citing Lemar Constr. Co., ASBCA Nos. 31161, 31719, 88-1 
BCA ,r 20,429 at 103,333) (no entitlement where contractor failed to prove equitable 
adjustment unilaterally awarded by the CO was inadequate); Zinger Constr. Co., 
ASBCA Nos. 28788, 32424, 87-3 BCA ,r 20,196 at 102,286-87, 102,290-92 (no proof 
that appellant is entitled to a further equitable adjustment for various changes and 
differing site conditions than unilaterally awarded by government); see also Lectro 
Magnetics, Inc., ASBCA No. 15971, 73-2 BCA ,r 10,112 at 47,512 (no proof that 
substituted pump cost more or took longer to install than pre-change pump). 
B. De Novo Review 
Appeals before the ASBCA are de nova proceedings. See 41 U.S.C. § 7104(b)(4). 
"[W]hen suit is brought following a contracting officer's decision, the findings of fact 
in that decision are not binding upon the parties and are not entitled to any deference. The 
contractor has the burden of proving the fundamental facts of liability and damages de 
novo." The Board has "the power to reduce the contracting officer's award.'' Wilner v. 
United States, 24 F.3d 1397, 1401 (Fed. Cir. 1994). This is because the CDA provides 
that a COFD is no longer final if appealed. According to 41 U.S.C. § 7103(g), the 
decision is "final and conclusive and is not subject to review by any forum, tribunal, or 
Federal Government agency, unless an appeal or action is timely commenced as 
authorized in this chapter" (underlining added). 
26 

Once the contractor appeals under the CDA, the Board "can, with respect to 
a contracting officer's decision that has been appealed to it, reduce as well as 
increase the award made by that contracting officer.'' Assurance Co. v. United States, 
813 F.2d 1202, 1206 (Fed. Cir. 1987), accord Wilner, 24 F.3d at 1401.16 The Board 
will reduce an amount of money (or days of delay) found owing by the CO where the 
contractor fails to prove government liability, causation, or injury as required by 
Servidone Constr. Corp. v. United States, 931 F.2d 860, 861 (Fed. Cir. 1991). 
Consonant with this is a deduction from the claim where, as here, after putting the 
COFD into play, appellant withdraws claimed costs for which it was compensated by a 
related equitable adjustment (see findings 86-88). 
After ASBCA No. 59738 was filed on the basis of a deemed denial, the CO 
issued a COFD and granted an equitable adjustment which LWJV challenges in 
ASBCA No. 59909 as insufficient (see, e.g., compl. ,r,r 33, 35-36 ("The Basis for 
Appealing the Contracting Officer's Final Decision''). Thus, the Board is not bound 
by the COFD and Mod. POOOOl of March 11, 2015, which gave LWJV a total of 
$579,874 and effectuated the equitable adjustment through the modification. This sum 
included $83,988 for the telecom claim, and allowed $495,886 for the MCC/EMT 
claim that is the subject of ASBCA Nos. 59738 and 59909. 17 According to appellant, 
it remains entitled to "the amount of $1,350,698, minus the $495,8[8]6 that [L WJV] 
was already paid [by Mod. POOOOl], for a total award of $854,822" plus interest as 
allowed by the CDA, 41 U.S.C. § 7109 (app. reply br. at 31).18 
The government disagrees, and contends that L WJV "has not demonstrated 
with credible evidence that the costs it is seeking represent the actual costs of the 
additional work Appellant performed as a result of the constructive change." It 
16 As our appellate court has explained, the COFD does not "constitute[] a strong 
presumption or an evidentiary admission of the extent of the government's 
liability, albeit subject to rebuttal.'' England v. Sherman R. Smoot Corp., 
388 F.3d 844, 855 (Fed. Cir. 2004) (citing Wilner, 24 F.3d at 1403). This 
decision struck down the so-called "McMullan presumption" that a CO's 
determination which found the government responsible for at least a portion of 
delay alleged by the contractor created a rebuttable presumption during a 
subsequent proceeding. The Court made clear that the rule expressed in 
J.D. Hedin Constr. Co. v. United States, 347 F.2d 235 (Ct. Cl. 1965), was 
overruled by Wilner. Smoot, 388 F.3d at 854-55. The result under Assurance, 
Wilner, and Smoot is the same: appealing the COFD or the modification 
effectuating the equitable adjustment of time or money vitiates the findings of the 
CO and the remedy granted in reliance thereon, leaving resolution of the claim to 
the tribunal. 
17 (Seen. l) 
18 (See finding 83 n.10) 
27 

maintains that "[ m ]any of Appellant's claimed costs are captured in the contract price 
or are otherwise not the result of the constructive change." (Gov't br. at 2) 
While LWJV's original claim sought, among other things, costs associated with 
installation and demolition of MCC, L WJV was paid for this work under routine 
contract progress payments. We note that L W JV later agreed, and withdrew these 
costs from the claim ( finding 93) as well as other costs it discovered were not 
associated with the claim (findings 85-88). But, this occurred after the contractor 
had received an equitable adjustment under Mod. POOOO 1 that included both the 
previously-paid MCC costs and those that should not have been billed to the claim 
(findings 73-85). We take into consideration whether there has been overpayment in 
determining quantum. 
C. Requirement of a Causal Relationship beflreen the Claim and the Constn,ctive 
Change to the Contract 
"A constructive change takes place when a contractor performs work 
beyond the contract requirements, without a formal change order under the Changes 
clause, due either to an informal order from, or through the fault of, the government.'' 
MA. Mortenson Co., ASBCA No. 53229, 05-1 BCA ,r 32,837 at 162,469-70 (citing 
Ets-Hokin Corp. v. United States, 420 F.2d 716, 720 (Ct. Cl. 1970)). As the 
government stipulated that it constructively changed the contract by requiring LWJV to 
replace MCC in concealed spaces with EMT (tr. 2/128-29; see also fmding 84), we turn 
to whether appellant has met its burden to prove that its claimed costs were reasonable, 
allowable, and allocable to the claim. 
Recovery for a changed condition is contingent on the CO having enlarged: 
[T]he contractor's performance requirements ... and [the] 
extra work is not volunteered but results from direction of 
the government's officer. Len Co. & Assocs. v. United States, 
385 F.2d 438,443 (Ct. Cl. 1967) .... The measure of such an 
adjustment is the difference between the reasonable cost of 
performing without the change and the reasonable cost of 
performing with the change. Celesco Industries, Inc., 
ASBCA No. 22251, 79-1 BCA ,r 13,604 at 66,683; accord 
Sauer, Inc. v. Danzig, 224 F.3d 1340, 1348 (Fed. Cir. 2000). 
Because an equitable adjustment is to safeguard against 
increased costs engendered by modifications, it must be 
closely related to ( and contingent on) the altered position in 
which the contractor finds itself by reason of performing the 
"changed" work. Nager Electric Co. v. United States, 
28 

442 F.2d 936, 946 (Ct. Cl. 1971); Bruce Constr. Corp. v. 
United States, 324 F.2d 516, 518 (Ct. Cl. 1963). 
Atherton Constr., Inc., ASBCA No. 56040, 08-2 BCA ,-r 34,011 at 168,191 (underlining 
added). 
Contract clause FAR 52.243-4, CHANGES (JUN 2007) (finding 5), provides in 
relevant part that: 
If any change under this clause causes an increase or 
decrease in the Contractor's cost of, or the time required 
for, the performance of any part of the work under this 
contract, whether or not changed by any such order, the 
Contracting Officer shall make an equitable adjustment 
and modify the contract in wTiting. 
The causal relationship between the change imposed by the government and the 
damages sought by appellant is an essential link. "[C]ausation is, to a certain extent, 
conceptually akin to the concept of allocability." Delco Electronics Corp. v. 
United States, 17 Cl. Ct. 302, 320 (1989). Appellant "must establish both the 
reasonableness of the costs-claimed and their causal connection to the event on which 
the claim is based. Delco, 17 Cl. Ct. at 319 (citing S. W Electronics & Mfg. Corp., 
ASBCA Nos. 20698, 20860, 77-2 BCA ,-r 12,631 at 61,218, ajf'd, 655 F.2d 1078 
(1981)). 
The "causation requirement is similar to that recognized under the well settled 
law of damages: 'Recoverable damages cannot be proved by a naked claim for a return 
of costs even when they are verified. The costs must be tied in to fault on [ the 
government's] part."' Stewart & Stevenson Services, Inc., ASBCA No. 43631, 98-1 
BCA ,-r 29,653 at 146,925 (citing River Construction Corp. v. United States, 159 Ct. Cl. 
254, 270 (1962)). 
D. Analysis of LWJV's Quantum Appeals in ASBCA Nos. 59738 and 59909 
As analyzing LWJV's quantum claim is a fact-intensive determination, we 
adopt the claim's approach oflooking separately at the phases of installing MCC; 
demolishing MCC; and substituting EMT in concealed spaces (see, e.g., finding 20). 
Although LWJV has now abandoned $115,750 for MCC-related labor in September 
and October 2012 (finding 93), these events and their sequence are critical to 
determining whether the government is liable for particular costs. It does not follow 
automatically that simply because the government changed the contract by rejecting 
MCC that L WJV is entitled to costs associated with its use. Rather, the appropriate 
question is whether the government is responsible for costs arising from L WJV' s 
29 

unilateral decision to install MCC ( contrary to government direction) and the 
consequences thereof, which extend to greater costs for the late-substitution of EMT. 
This means that LWJV must not only prove that it incurred additional costs, but that 
the government put it in the ·'altered position" of deciding to use MCC in concealed 
spaces against clear government direction that makes these recoverable. This inquiry 
goes beyond what is allowable per the contract specifications, and looks at how the 
contractor chose to prosecute the work. 
The contractor should be properly paid where it deserves compensation; not 
paid where it is not entitled to recover; and not paid repeatedly for the same effort. 
Each of these situations is of concern in the instant appeals. ·'As in other civil actions, 
the standard used to determine whether the burden has been met is the 'preponderance 
of the evidence test."' Delco, 17 Cl. Ct. at 319 ( citations omitted). In short, and 
remembering that this is a de nova review of the CO' s actions, we query whether 
appellant has proven by a preponderance of the evidence that it is due the quantum 
claimed as well as that paid in the equitable adjustment. We conclude that appellant 
has not met its burden. 
I. Claimed Costs for Installation and Demolition ofMCC 
The time line of events is straightf 01ward and unpropitious for appellant's 
purposes. The record shows that LWJV: (1) knew by the September 4, 2012 
preparatory meeting of the government's disag:r;eement with the contractor's planned 
use of MCC and was again told of this in the preconstruction meeting of September 10, 
2012; (2) submitted RFI-0206 on September 13, 2012, to which the government 
replied on September 20, 2012 and rejected the use of MCC in concealed spaces; and, 
(3) nonetheless began installing MCC against this direction on or about September 26, 
2012. (Findings 24-36) 
L WJV persisted with this course while it asked the government to reconsider on 
October 1 and despite receiving a notice of deficiency regarding its use of MCC on 
October 15, 2012. Notwithstanding the CO's reaffirmation on October 17 of the 
government's negative September 20 response to RFI-0206, the QCRs show that 
Worch continued to work using MCC through October 22, 2012, and told the 
government on October 25 that it intended to submit an REA for the change to EMT. 
(See findings 24-42) LWJV justifies its moving forward with MCC by pointing to 
project time constraints and of its increasing need to accommodate other trades in the 
shared workspace. The contractor was well aware of the increased difficulties that 
would ensue in installing wiring, conduit, and other items in concealed spaces if it 
pushed forward with MCC and the government did not back down on its direction to 
use EMT instead (findings 28-30). 
30 

L WJV bore on with MCC in the belief that its interpretation of the contract was 
correct. In the end, the government agreed that it was, but that does not warrant 
compensation to the contractor for its noncompliance with consistent and timely 
government direction to use EMT. Appellant failed to prove that it was necessary for 
Worch Electric to begin installing MCC (instead of E~1T, which it knew the 
government insisted upon) when and as it did, or that it was placed in the position of 
having to do so by the government. The government did not cause L WJV to incur 
costs for installing MC cable, which it later had to demolish. We find that appellant is 
responsible for the costs that flowed from L WJV' s choice of how it would pursue the 
work and deny that portion of the claim. 
As noted in section B, supra, evaluating quantum means determining fair 
compensation. We are presented here with the circumstance where appellant repeatedly 
has been paid for MCC-related expenses, which we find were the contractor's 
responsibility. L WJV was paid for MCC installation and demolition through progress 
payments for September and October 2012 ( finding 93) then compensated again for this 
by the CO as part of the equitable adjustment (findings 73-79, 82-85). LWJV 
recognized (after obtaining payment for the equitable adjustment) that it should not have 
included these costs in its claim because it had already received these payments and has 
now withdrawn them from its claim albeit from the remaining amount sought and not 
acknowledging that these were pat1 of the equitable adjustment (finding 93). As 
discussed in section E, infra, we deduct this amount from the equitable adjustment 
because the contractor was not entitled to this recovery. 
2. Claimed Costs for Substituting EMT for MCC in Concealed Spaces 
While the government agrees that it constructively changed the contract 
and that LWJV should recover for being required to install EMT in lieu ofMCC in 
concealed spaces, it regards the March 11, 2015 equitable adjustment as just 
(gov't br. at 39-43). As the contractor is responsible for unilaterally choosing to use 
MCC, which it had to demolish before substituting EMT at a later and more costly 
stage in the project (see§ 0.1, infra), we find that it is also responsible for the 
increased difficulty of the last task (see findings 15-19, 43-48). Appellant bears the 
additional costs of this "altered position,'' which it could have avoided by not installing 
MCC, complying with the government's contemporaneous direction, and filing an 
REA or claim as the remedy for such disagreements contemplated in the contract (see 
findings 5-6). We accept appellant's assertions that when L WJV finally yielded to 
government direction, substituting EMT was harder and more expensive than it would 
have been had Worch installed it to begin with. By that time, there were numerous 
other trades at work in the area, and other construction features had been or were being 
put in place in the same confined spaces. (Findings 43-48, 69-72) 
31 
r 

3. Approaches to Determining Quantum 
While we agree with the parties that L WJV is entitled to recover ''something" 
for the cost of installing EMT, the question is, how much, particularly where the 
contractor exacerbated the costs? What is the most rational approach to fairly 
compensate LWJV under these circumstances? 
The parties' briefs discuss (or at least suggest) three common approaches to 
quantum. These are: (a) the "total cost" method, in which the contractor is paid the 
difference between what it bid and costs attributable to the change (see app. br. at 6-8, 
,r,r 5, 11-18, 24 ); (b) the recovery of "actual" costs, which is urged by the contractor 
(app. br. at 26-33); and (c) as proposed by the government, the use of an independent 
estimate of appropriate costs that adopts standard industry data and was augmented 
based on further contractor information and in an attempt to settle (gov't br. at 7-9, 
28-29, 40-41, I 02, ,r,r 409-96, 518-50). The Board considered each of these, and also 
assessed whether it could independently ascertain quantum based on the record before 
us. We evaluate each method below. 19 
a. The "Total Cost" Method 
'w' e need not spend much time on this approach, as L WJV does not clearly rely 
on the "total cost" method. Claims based upon "total costs" are "looked upon with 
disfavor and recovery on that basis is sharply restricted since they call upon one party 
to indemnify the other." Batteast Constr. Co., ASBCA Nos. 35818, 36609, 92-1 BCA 
,r 24,697 at 123,215 (citing S. W Electronics & Mfg. Corp. v. United States, 655 F.2d 
1078, I 086 ( Ct. Cl. 1981) ). 
The Court of Claims has established four criteria against 
which to measure total cost claims, all of which must be 
demonstrated before a total cost recovery will be 
allowed ... (!) the nature of the particular losses make 
it impossible or highly impracticable to determine them with 
a reasonable degree of accuracy; (2) the plaintiffs bid or 
19 The Board reviewed the record to determine whether it could independently 
ascertain more fair compensation for appellant apart from the approaches 
presented by the parties. Significant effort was expended attempting to 
correlate time sheets, invoices, QARs, QCRs, and other project 
correspondence with L WJV' s assertions, but this was not productive as 
these neither consistently nor fully corroborated the amount claimed 
(see, e.g., findings 33-36, 40-41, 46-48, 54-55). The Board declines to 
sift further through too-often inconsistent documents to attempt to develop 
a more just remedy than that developed by the government. 
32 

estimate was realistic; (3) its actual costs were reasonable; 
and ( 4) it was not responsible for the added expenses. 
Batteast, 92-1 BCA ,r 24,697 at 123,215 (citing WRB Corp. v. United States, 
183 Ct. Cl. 409, 426 (1968)). None of these criteria were proven here. 
Rather, appellant seems to put the underpinnings of the total cost method 
forward by providing information on bids from 1st Electric and W orch Electric to 
install MCC in concealed spaces (app. br. at 6-8, ,r,r 5, 11-18, 24) and LWJV's alleged 
·'actual'' costs. This is of limited value in ascertaining the difference between what 
this work was anticipated to cost at bid ( or even the reasonableness of LWJV's ·'actual 
costs") using MCC as opposed to EMT (findings 9-14), if indeed either was its 
purpose. This FFP contract does not have a separate price for the questioned 
installation in concealed spaces, and it is not broken out in L W JV' s bid. 1st Electric, 
its anticipated electrical subcontractor, was not able to do the work and so its data 
lacks relevance and foundation (see finding 9). Nor is Worch Electric's post-bid 
estimate for the work using MCC helpful for assessing quantum. Although we accept 
that it shows that Worch Electric intended to use MCC, it does not indicate that Worch 
priced the job on the basis of there being 3 81 single-branch circuits, which is one of its 
significant criticisms of the IGEs (findings 11-14). Based on the record before us, the 
"total cost'' method is of no utility here. 
b. The "'Actual Cost" Approach 
L WJV contends that, because an admitted constructive change by the government 
has taken place, it is entitled to recover its "actual" or demonstrable costs. Appellant 
cites FAR 31.201-3 for the proposition that "[a] cost is reasonable" when "it does not 
exceed that which would be incurred by a prudent person in the conduct of competitive 
business." The contractor maintains that its "actual'' costs for substituting EMT, 
compiled from project records, are reasonable and recoverable. It contends that these 
are more reliable than the IGEs prepared by the government, which were calculated 
using information from the contract and rates from the RSMeans estimating handbook. 
(App. br. at 26-27) 
The government challenges L WJV' s alleged "actual'' costs as inadequately 
supported by the record taken as a whole. It points to instances in which charges for 
purported work do not match what is shown by other project documents. For example, 
L WJV relies upon time sheets ( especially for W orch Electric) as proof of certain work 
being done at particular times, but these are sometimes at odds with what is shown in 
other documentation, including QCRs and QARs. The government also asserts that 
Mr. Worch's allegations regarding the extent and nature of his company's work and 
labor records are not well-founded on his personal knowledge, and rejects his criticism 
33 

of the government's use of RSMeans to estimate the cost of substituting EMT as 
opposed to installing it in the first place. (Gov't hr. at 21-35) 
We agree with the government that L WJV has not demonstrated that it is 
entitled to recover the amount urged as its "actual expenses," nor do we find these 
reasonable or necessarily allocable. To the extent that information on the bids of 
1st Electric and W orch Electric are offered in support of the reasonableness of the 
contractor's alleged "actual'' costs, we find these unhelpful (see findings 9-14). 
Problematically for appellant, its umeconciled assertions regarding its ·'actual'' 
costs do not consistently comport with the contractor's QCRs or other parts of the 
record (see, e.g., findings 43-48 (the Board rejects L\,VJV's purported "efficiency 
rates" for the supposed greater ease of handling MCC versus EMT), findings 54-55 
(rejecting as insufficient Mr. Worch's evidence oflabor expended and appellant's 
failure to call other witnesses whom it characterizes in its post-hearing brief as familiar 
with the work in progress and time sheets), findings 68-72 (rejecting LWJV's 
calculations (including the relative LF /hour "efficiency rates") posited for working 
with MCC and EMT)). As LWJV bears the burden of proving its claim by a 
preponderance of the evidence, it is appellant's duty to respond to credible government 
challenges to key assertions and it has not adequately done so. 
c. The Government's Two Independent Estimates, Settlement 
Offer, and Equitable Adjustment 
At the heart of the equitable adjustment paid by the government in Mod. POOOO 1 
are figures from the two IGEs, which were later augmented as part of a settlement offer, 
then given to the contractor by the government as an equitable adjustment in 
satisfaction of the claim (findings 56-85). Although our ultimate focus is on the 
equitable adjustment, that payment was largely predicated upon the government's use 
of RSMeans in calculating the IGEs. The equitable adjustment subsumes both of these 
and additional amounts allowed by the government to promote settlement and in 
accordance with professional judgment following negotiations and additional 
information provided by appellant. 
Appellant objects to the government's use of RSMeans in preparing the IGEs 
as underestimating its costs, particularly regarding EMT. The contractor says this 
rubric "fail[s] to reflect the following actual adverse working conditions that Worch 
Electric was required to overcome" in substituting EMT for MCC in concealed spaces 
(app. br. at 25). To buttress its position, Worch Electric created an alternative analysis of 
its claim using RSMeans; that amount too was higher than the IGEs Ud.; tr. 1/166-68). 
We are not persuaded that the use of RS Means led to the government's 
misestimating the work or underestimating the hardship costs of substituting EMT 
34 

(finding 72). We accept RSMeans as a recognized industry measure, and the most 
reasonable approach here for the government's estimations of costs for installing 
EMT, particularly where appellant's proffered "actual" costs were questionable. 
Further, the government did not rely on RSMeans alone, and exercised professional 
judgment in formulating and revising the IGEs, settlement offer, and COFD upon 
which the equitable adjustment was based (findings 56-64, 72-79, 83-85). 
We find that the equitable adjustment fairly ( even overly-generously) 
compensated LWJV for installing EMT (see findings 42, 48, which find LWJV 
responsible on its choice to install MCC and the consequences thereof). To the extent 
( if indeed at all) that the government's use of RS Means reflected only costs for an 
initial installation of EMT and not the more complex substitution carried out by 
LWJV, this does not diminish the handbook's utility as a sound basis for ascertaining 
quantum. 
We recognize that an IGE is by definition an estimate, but find the government's 
efforts reasoned and more credible than L WJV's proffered "actuals." While actual 
costs are generally preferred, estimates can be used where the former have not been 
well-proven and there is a sound basis for finding the estimate more acceptable. 
"The determination of equitable adjustment is not an exact science; where responsibility 
for damage is clear, it is not essential that the damage amount be ascertainable with 
absolute or mathematical precision." BAE Systems San Francisco Ship Repair, 
ASBCA No. 58810, 16-1BCA136,404 at 177,503-04 (citing Electronic & Missile 
Facilities, Inc. v. United States, 416 F.2d 1345, 1358 (Ct. Cl. 1969)). In any event, it was 
appellant's decision to use MCC in the face of government objection that delayed EMT 
installation and caused the latter to take place under more difficult circumstances. The 
resulting extra costs are attributable to the contractor (finding 48; see also§ B.1, supra). 
E. Evaluating the Contractor's Decreases to the MCC EMT Claim Follmving the 
Equitable Adjustment 
Bearing in mind that LWJV was given an equitable adjustment on the 
MCC/EMT claim of $495,886 by the COFD and Mod. POOOOl of March 11, 2015, for 
MCC and EMT-related work (findings 83-85), and that we are not constrained by the 
CO's decision to do so (see § B), we evaluate the impact of appellant's subsequent 
reductions to the claim after it was paid. 
After realizing that it erroneously included certain costs that were not allocable 
to the claim, the contractor changed the overall amount sought (finding 94). These 
reductions are found in LWJV's revised claim of January 8, 2016, which eliminated 
(among other things) supervisory labor and fuel expenses for Messrs. Wheeler and 
Waltrup, and fuel expenses for Mr. Wheeler, which were associated with unrelated 
contract work and other material and equipment costs (findings 87-88). Appellant's 2017 
35 

post-hearing briefs (see, e.g., app. reply br. at 1) removed an additional $115,750 for 
MCC-associated labor charges from September and October 2012, and acknowledged 
that LWJV was compensated for this work prior to claim submission through routine 
progress payments in 2012 (id; see also findings 83-88). 
Prior to withdrawing the claimed amounts, L WJV was paid for these as part of 
the equitable adjustment. The government allowed these originally-claimed cost 
categories as part of the IGEs, government settlement offer and COFD, and the CO 
compensated LWJV for these in Mod. POOOOI (findings 73-85). We rely upon the 
contractor's quantification of its decreases to its claim. We deduct this amount from 
the equitable adjustment L WJV received on the MCC/EMT claim that underlies the 
subject appeals (findings 94-95), as these should not have been allowed by the CO. 
This has been a difficult decision; it has a harsh result for the contractor, which 
assumed that risk by appealing the COFD and contesting Mod. POOOOI and thus 
exposing the equitable adjustment to re-evaluation. We have determined that LWJV is 
not entitled to recover claimed costs associated with the installation and demolition of 
MCC (see§ D.1, supra). While we agree that appellant is entitled to some costs 
related to substituting EMT, this does not include expenses arising from the greater 
difficulty of that installation at a later stage of construction (see§ D.2). In assessing 
quantum for this, the Board considered approaches put forth by the parties (see§ D.3). 
After determining that many of appellant's "'actual'' costs were unsupported 
and/or not allocable to the claim, the Board attempted to ascertain whether there was a 
more reasonable result than the revised IGE relied upon by COFD and Mod. POOOOl. 
Due to the lack of correlation of much of the data, we concluded that we could not 
independently do so and that the RSMeans-based revised IGE was the most rational 
approach of calculating damage. (See n.19) 
As discussed in section E, in light of later modifications to its claim, we find 
L WJV has been overpaid and is entitled to less than it has received. We reduce the 
amount of the March 11, 2015 equitable adjustment for the MCC/EMT claim of 
$495,886 by the $123,131 that was withdrawn by the contractor from its claim. The 
result is as follows: 
Equitable adjustment for MCC/EMT claim allowed by the CO in Mod. POOOOI 
Less LWJV's decreases of$123,13I (Finding 88) 
Board-revised equitable adjustment per L WJV' s reductions 
$495,886 
-123,131 
$372,755 
We further find that L WJV is not entitled to any of the additional sums sought in 
excess of the equitable adjustment granted by the government. We allow L WJV to 
retain the $372,755 allowed by the government as compensation for installing EMT, 
which we find includes appropriate markups. However, appellant was overpaid 
36 

$123,131 based upon the equitable adjustment already received; we regard this as fair, 
as the amounts deducted from the equitable adjustment were determined by appellant 
in its revised claim of January 8, 2016. 
The appeals are denied. 
Dated: November 16, 2018 
I concur 
RICHARD SHACKLEFORD 
Administrative Judge 
Acting Chairman 
Armed Services Board 
of Contract Appeals 
CONCLUSION 
Administrative Judge 
Armed Services Board 
of Con tract Appeals 
I concur 
OWEN C. WILSON 
Administrative Judge 
Vice Chairman 
Armed Services Board 
of Contract Appeals 
I certify that the foregoing is a true copy of the Opinion and Decision of the 
Armed Services Board of Contract Appeals in ASBCA Nos. 59738, 59909, Appeals of 
Lebolo-Watts Constructors 01 JV, LLC, rendered in conformance with the Board's 
Charter. 
Dated: 
37 
JEFFREY D. GARDIN 
Recorder, Armed Services 
Board of Contract Appeals