ARMED SERVICES BOARD OF CONTRACT APPEALS 
 
OPINION BY ADMINISTRATIVE JUDGE WILSON 
 
 This appeal arises from a hurricane protection project in Jefferson Parish, 
Louisiana.  Appellant, Healtheon, Inc. (Healtheon or appellant), challenges the 
contracting officer’s denial of its claim for additional compensation and time 
extensions in connection with directed changes and differing site conditions it 
allegedly encountered during contract performance.  The Board conducted a six-day 
hearing in New Orleans, Louisiana.  For the reasons stated below, the Board grants 
appellant one additional day in time extensions and denies the remainder of the appeal. 
 
FINDINGS OF FACT 
 
The Contract, Modifications, and Claim Issues  
1. On September 5, 2014, the New Orleans District of the U.S. Army Corps of 
Engineers (USACE or Corps) issued Solicitation No. W912P8-14-R-0041 for a 
hurricane protection project in Jefferson Parish, Louisiana (project) (R4, tab 3 
at COE000340).  
 
2. Specifically, the project required the awardee to construct submersible 
electric pumps, diesel generators, fuel tanks, a pre-engineered metal building system 
(metal building), a concrete emergency shelter building (safehouse), and perform other 
related work (id. at COE000348-49). 
Appeal of - )  
 )  
Healtheon, Inc. ) ASBCA No. 63145 
 )  
Under Contract No. W912P8-15-C-0024 )  
   
APPEARANCES FOR THE APPELLANT: Larry W. Caudle, Jr., Esq. 
Jonathan J. Straw, Esq. 
    Kraftson Caudle PLC 
    McLean, VA 
 
APPEARANCES FOR THE GOVERNMENT: Michael P. Goodman, Esq. 
    Engineer Chief Trial Attorney 
 Jacob S. Stephens, Esq. 
    Engineer Trial Attorney 
    U.S. Army Engineer District, New Orleans 

2 
 
3. On April 10, 2015, the Corps awarded Contract No. W912P8-15-C-0024 
(contract) to Healtheon (id. at COE000165). 
 
4. The contract incorporated by reference the following clauses from the 
Federal Acquisition Regulation (FAR):  52.233-1, DISPUTES (MAY 2014); 52.236-2, 
DIFFERING SITE CONDITIONS (APR 1984); and 52.236-8, OTHER CONTRACTS 
(APR 1984) (R4, tab 3 at COE000184).  The contract also incorporated the full text of 
FAR 52.243-4, CHANGES (JUN 2007) (id. at COE000197). 
 
5. Healtheon segmented the project into three phases of work:  
 
a. Phase 1:  Primary installation of the platform piling and re-grading 
of existing and new rip-rap stone;  
 
b. Phase 2:  Construction of the platform, installation of the generator 
building, and demolition and replacement of the first three of seven 
electric pumps;  
 
c. Phase 3:  Demolition and replacement of the remaining four 
pumps, installation of the emergency shelter building, installation 
of the jib crane and removal of equipment from the existing 
platform, general building finishes, and final site work.  
 
(Joint Statement of Undisputed Material Facts (JSUMF) ¶ 4) 
 
6. In accordance with the contract, appellant was required to “commence 
work . . . within 10 calendar days after the date [Healtheon] receives the notice to 
proceed . . . [and] complete the entire work ready for use not later than 363 [calendar 
days]”
 (R4, tab 3 at COE000185).  USACE issued the notice to proceed on April 30, 
2015 (app. supp. R4, tab 2).  Given this, appellant was required to complete 
performance by April 27, 2016 (id.; R4, tab 3 at COE000185).   
 
7. The contract also noted that the 363 days allotted for project completion 
reflected the government’s best estimate of the shortest reasonable performance 
period, and that appellant was obligated to do whatever was necessary, including 
hiring multiple crews, working overtime, and overseeing concurrent operations, to 
complete the work within the allotted time period without equitable adjustment (R4, 
tab 3 at COE000185). 
 
8. Throughout contract performance, the government issued 13 modifications 
to the contract.  In accordance with these modifications, the contract completion date 
was extended 63 days to June 29, 2016 (R4, tabs 6-8, 16-17).  
 

3 
 
9. The table below summarizes the content of the modifications for the project.  
 
Mod  
No.  Mod Date  Description  Change in 
Contract Time  
Change in Contract 
Price  
Rule 4 
Tab  
A0001  10/19/2015  
Rip-Rap Differing Site 
Condition  0 NTE $30,000.00  5 
A0002  3/23/2016  
Weather Days: 4/30/15 - 
9/30/15  3 $0.00  6 
A0003  5/13/2016  
Weather Days: 10/1/15 - 
12/31/15  7 $0.00  7 
A0004  7/11/2016  
Weather Days: 1/1/16 - 
4/30/16  6 $0.00  8 
A0005  6/14/2016  Fuel Vents & Piping 
Changes  
0 NTE $8,500.00  9 
A0006  11/15/2016  
Rip-Rap in Berm Differing 
Site Condition  0 $102,687.08  10 
A0007  11/2/2016  
Electrical  
Modifications/Changes  0 NTE $65,000.00  11 
A0008  12/14/2016  
Contaminated Soil Differing 
Site Condition  0 NTE $5,000.00  12 
A0009  5/19/2017  Gantry Crane Change  0 NTE $0.00  13 
A00010  8/11/2017  Louver Screens Change  0 $23,006.76  14 
A00011  8/21/2017  
Pipe Piles & Rip-Rap 
Quantity Variations  0 -$60,695.82  15 
A00012  6/7/2018  CLIN 0023 Gantry Crane 
Change  
0 -$9,730.33  16 
A00012  6/7/2018  
CLIN 004 480V/Wiring 
Trough &  
Disconnect Switches  12 $0.00  16 
A00012  6/7/2018  CLIN 0018 Fuel Vents & 
Piping Changes  
5 $26,410.99  16 
A00012  6/7/2018  
CLIN 0011 Electrical  
Modifications/Changes  7 $86,250.78  16 
A00012  6/7/2018  
CLIN 0014 Contaminated 
Soil Removal (Differing 
Site Condition)   1 $9,207.13  16 

4 
 
 
It should be noted that under Mod A00012, CLIN 004, USACE awarded 12  
non-compensable additional days. 
 
10. On June 10, 2019, USACE issued a letter stating that contract performance 
was complete.  Specifically, the letter stated, “[a]ll contract work was performed in 
accordance with approved plans and specifications and meets the design criteria.”  
(App. supp. R4, tab A26 at COE038653)  
 
11. Complete performance required the completion of several
1 smaller 
construction and maintenance activities set forth within the specifications.  These 
subprojects included:  (1) metal building; (2) metal building louvers; (3) 480V service; 
(4) rip-rap; (5) crane; (6) fuel system piping; (7) electrical modifications; and 
(8) contaminated soil. 
 
Metal Building 
12. Part of the project involved the procurement and erection of a metal 
building to house two generators that could operate the electric water pumps at the 
project site during an electrical outage.  Section § 13 34 19 of the contract’s 
specifications, Metal Building Systems, included the following relevant parts:  
 
1.1 SCOPE   
 
The work covered by this section consists of furnishing all 
plant, equipment, labor and materials, and performing all 
operations in connection with the design, fabrication, 
transportation and installation of a metal building system 
(Generator Building) and appurtenances.  Mechanical, 
 
1 There are two additional subprojects appellant completed to achieve complete 
performance for which it does not seek any damages or time extensions: the 
construction of an emergency shelter building and the provision of certain 
pumps and discharge pipes (R4, tab 1 at COE0000007, COE000076, 
COE000101; see also JSUMF ¶¶ 181-94).  Because appellant does not seek any 
relief in connection with these items, the Board will not within this decision 
delve into the merits of any arguments appellant set forth for these subprojects. 
A00013  8/30/2018  
Weather Days: 5/1/16 - 
3/20/17  22 $0.00  17 
  Totals (excluding 
undefinitized NTE 
amounts)  63 $177,136.59  
 

5 
 
electrical and plumbing components for the building are 
covered under the applicable mechanical, electrical and 
plumbing specification sections.  
 
. . . 
 
1.3 REFERENCES  
The publications listed below form a part of this 
specification. . . .  
 
AMERICAN SOCIETY OF CIVIL ENGINEERS (ASCE)  
ASCE/SEI 7  (2010) Minimum Design Loads for Buildings 
and Other Structures, Including Supplement No. 1 
 
. . .  
 
METAL BUILDING MANUFACTURERS 
ASSOCIATION (MBMA) MBMA MBSM (2002) Metal 
Building Systems Manual  
 
. . . 
 
1.4 DESIGN REQUIREMENTS  
 
1.4.1 Structural Performance   
 
Provide metal building systems capable of withstanding 
the effects of gravity loads and the following loads and 
stresses within the limits and conditions indicated.  
Calculations and drawings shall be signed and sealed by a 
registered professional engineer.  
 
. . .  
  

6 
 
1.4.1.2 Design Loads 
 
Conform to the requirements of MBMA MBSM, 
ASCE/SEI 7, and the building code applicable to the 
project geographical location. 
 
. . . 
 
1.8 QUALITY ASSURANCE  
 
. . . 
1.8.4 Manufacturer’s Qualifications  
 
Metal building system manufacturer must . . . . [p]rovide 
engineering services by an authorized currently licensed 
engineer in the geographical area where construction will 
take place, having a minimum of four (4) years experience 
as an engineer knowledgeable in building design analysis, 
protocols and procedures for the “Metal Building Systems 
Manual” (MBMA MBSM); ASCE/SEI 7, the building 
code in the geographic area where the construction will 
take place and ASTM E 1592.  
 
(R4, tab 3 at COE000944-956)  
 
13. The above specifications incorporate by reference two different manuals:  
the Metal Building Manufacturers Association Metal Building Systems Manual 
(MBSM) and a manual issued by the American Society for Civil Engineers (ASCE) 
entitled Minimum Design Loads for Buildings and Other Structures.  The MBSM 
describes a summary of the practices and responsibilities of the parties in a typical 
project involving a metal building.  The ASCE manual “gives [the] criteria to 
determine whether or not a building should be classified as enclosed or partially 
enclosed” (tr. 2/31-32, 3/32).
2  
 
14. Healtheon subcontracted American Building Company (ABC) to fabricate 
the metal building (tr. 1/31). 
 
2 The parties did not provide the Board with a copy of the 2002 ASCE 7 referenced by 
the specifications, but appellant did provide a copy of the 2006 Metal Building 
Systems Manual (MBSM), which “focuses on how to apply the loads specified 
by . . . ASCE 7” and contains a large number of equations from the ASCE 
7 manual regarding design loads (see app. supp. R4, tab A95 at 4, 40, 46-53).   

7 
 
15. On July 24, 2015, Healtheon received a purchase order from ABC (R4, 
tab 193 at COE058100).  The purchase order classified the building as an Enclosed 
Building (id. at COE058107).  We find no evidence in the record that calculations 
were done by either Healtheon or ABC to support the initial conclusion that the metal 
building would be fully enclosed (tr. 2/218-28).   
 
16. In addition, although it is undisputed that Healtheon hired the engineering 
firm Waldemar Nelson Engineering to work with it on the project, the record evidence 
reveals that the firm did not review any of ABC’s submittals (tr. 2/223-24).   
 
17. On October 13, 2015, Healtheon transmitted the first set of metal building 
shop drawings to USACE (app. supp. R4, tab A6 at H00218).  
 
18. On October 28, 2015, USACE rejected Healtheon’s initial submittal and 
included the following comment to be addressed in a resubmission: 
 
On sheet ABC-1, the enclosure classification is 
labeled as “Enclosed.”  The eastern wall of this 
building contains one large opening (270 sq. ft.) that 
will remain open during a hurricane for air intake.  
This opening greatly exceeds the openings in the 
rest of the building, because the exhaust side will 
not be an “opening” as it is sealed off between the 
generator's radiator and wall.  Per ASCE 07, this 
building would then be classified as “Partially 
Enclosed.”  Please revise.   
 
(Id. at H00217)  
19. Between January 4, 2016 and February 12, 2016, Healtheon realized that 
ABC’s original anchorage design was fundamentally flawed (app. supp. R4, tab A6 
at H00220-38, H00267-81, H00283).   
 
20. On March 1, 2016, appellant submitted RFI-0024, in which it requested 
that the government review the structural design of the proposed building, specifically 
issues with the building slab and uplift loads (id. at H00286-87).  In response, the 
Corps informed appellant that the problems highlighted in RFI-0024 did not rest with 
the slab, but “the loading applied to the anchorage” (id. at H00326, 329).  
 
21. On March 22, 2016, Healtheon submitted to the Corps an alternative 
anchorage design using steel I-beams (app. supp. R4, tab A6 at H00357). 
 

8 
 
22. On March 31, 2016, the Corps returned the submittal with a C-code,3 
because the Corps sought clarification or confirmation of some design elements (app. 
supp. R4, tab A6 at H00377).  Specifically, the Corps stated, “[t]his submittal is not a 
variation to the concrete platform but is a variation to the contract, in that the building 
system design is being changed” (id.). 
 
23. By letter dated April 11, 2016, Healtheon contested the Corps’ 
characterization of the alternative design as a variance and change to the metal 
building system.  Specifically, appellant’s letter stated that the “modification was 
made necessary by USACE’s insistence on the nonexistent requirement that the metal 
building be classified as a ‘partially enclosed’ building and our effort to comply 
with the associated uplift requirements as explained in our letter 1503-L-0024 dated 
April 5, 2016.”  (App. supp. R4, tab A6 at H00381) 
 
24. On April 13, 2016, Healtheon resubmitted a revised version of the 
anchorage design that was approved by the Corps on May 6, 2016 (app. supp. R4, 
tab A6 at H00399-400). 
 
Metal Building Louvers  
25. The specifications require appellant to provide louvers4 for the project, but 
the specifications contained contradicting information regarding the wind load the 
louvers were required to withstand.   
 
26. Specifically, Specification § 08 91 00 sets forth requirements for metal wall 
louvers.  Paragraph 2.2 of the specification required appellant to provide metal wall 
louvers “to withstand a wind load of not less than 140 pounds per square foot” (R4, 
tab 3 at COE000870). 
 
 
3 The Corps has a variety of codes it uses to respond to contractor submittals, all of 
which are associated with alphabet letter abbreviations.  A C-code signifies that 
the submittal was approved, but a resubmission is required.  (U.S. Army of 
Corps of Engineers, RMS Support Desk, What Do the Submittal Codes Mean?, 
https://rms.usace.army.mil/datafiles/helpvideos/qcsabout/Advanced/Content/To
pics/FAQ_COM_2/What%20do%20the%20Submittal%20Codes%20Mean.htm 
(last visited March 3, 2025)) 
4 The parties do not define the term “louver” within the record, but for the purposes of 
this decision, we find that louvers are sets of specialized vents that allow air to 
flow into a building while simultaneously blocking out rain and debris.  See 
App. supp. R4, tab A300 at 61. 

9 
 
27. Paragraph 2.8.7 of specification § 13 34 19 required certain louvers to be 
removable for maintenance.  Paragraph 2.8.7(e) required louver supports to carry 
“120 pounds per square foot wind load” (R4, tab 3 at COE000968). 
 
28. Contract Drawing No. M-022 stated that the louvers should be rated for 
180 pounds per square foot (PSF) (R4, tab 4 at COE001316).  
 
29. On April 27, 2016, Healtheon submitted to the Corps RFI-0031.  In the 
RFI, appellant inquired how the specifications could simultaneously require appellant 
to provide louvers rated at 140 PSF while rating the building at 120 PSF and with 
drawings calling for a rating of 180 PSF (app. supp. R4, tab A6 at H00456). 
 
30. On May 5, 2016, the Corps responded that the “requirements for the doors 
and louvers shall be adhered to as stated in the plans and specifications” (id.).  The 
government ultimately accepted the louvers that appellant provided when the project 
was substantially completed on March 20, 2017 (R4, tab 65). 
 
480V Service 
31. Contract Drawing No. E-004 depicts an electrical system (480V overhead 
service system) servicing a specific sector gate on the project site (app. supp. R4, 
tab A6 at H00484).   
 
32. On February 3, 2016, Healtheon submitted to the Corps RFI-0021, alleging 
that the existing 480 overhead service system was not built in accordance with 
(1) Drawing No. E-004; (2) national power standards; or (3) local power company 
standards (id. at H00483; tr. 2/118-20).  Specifically, appellant asserted that the “meter 
. . .  . is downstream (load side) of the service switch” rather than ahead of the service 
switch in accordance with Drawing No. E-004 (app. supp. R4, tab A6 at H00483). 
 
33. On March 10, 2016, USACE responded to RFI-0021 stating that the current 
set-up complied with contract standards and that if Healtheon still believed that there 
was a code violation, it needed to specify the exact code and requirement being 
violated (id.). 
 
34. On March 23, 2016, Healtheon re-submitted a portion of its concerns to the 
government in RFI-0026 (app. supp. R4, tab A6 at H00488).  In the resubmission, 
appellant stated that multiple changes were needed for the 480 service system to 
comply with articles 230.71 & 230.72 of the National Electric Code (NEC) (id.).  In its 
reply, the government conceded that disconnects were necessary downstream (id.). 
 

10 
 
35. On April 18, 2016, a USACE representative visited the site, agreed a 
change was necessary to correct the design, and discussed three possible solutions for 
appellant to consider (app. supp. R4, tab A6 at H00495-96).   
 
36. On June 23, 2016, USACE issued a request for proposals (RFP) directing 
Healtheon to submit a cost proposal for new “wiring trough and disconnect switches to 
the existing 480 Entergy feeder to supply power to the new LP-S panel” (app. supp. 
R4, tab A6 at H00508).  On June 30, 2016, Healtheon submitted a proposal (app. supp. 
R4, tab A6 at H00504).
5   
 
37. Thereafter, the Corps issued unilateral Modification No. A00012, which 
allowed $86,250.78 for electrical systems changes and extended the contract 
completion date by 12 non-compensable calendar days (R4, tab 16; finding ¶ 9).  
 
Rip-Rap  
38. Rip-rap is a term of art used to describe a layer of large rocks that are used to 
protect soil and structures from water erosion (see tr. 1/105, 150, 2/13, 3/87, 4/71-72).   
 
39. The contract included several technical specifications incorporating rip-rap. 
Specifically, sheet C-006 required the contractor to remove a single existing layer of 
24” rip-rap from the project site (R4, tab 4 at COE001282; see also tr. 1/107 
(“[e]specially the large stones absolutely would interfere with the pipe pile driving”)). 
 
40. In accordance with sheet C-002A, “ONLY [the] 20 FOOT SECTION [of 
rip-rap] SHOWN IS REQUIRED TO BE REMOVED FOR PILE DRIVING” (R4, 
tab 4 at COE001277) (capitalization in original). 
 
41. On August 11, 2015, Healtheon began excavating the existing rip-rap and 
discovered that (1) the depth of the rip-rap was substantially greater than represented 
in the specifications and (2) the rip-rap extended underneath the berm (app. supp. R4, 
tab A6 at H00126; see also tr. 1/106-07 (stating that the contract required “minimal” 
rip-rap removal, but that the rip-rap appellant found “went well into the berm and . . . 
towards the flood wall”)). 
 
42. On August 18, 2015, USACE admitted that “[r]emoval of any of the stone 
on the protected side berm face, which is in the way of pile placement, would be 
reason for additional compensable work” (R4, tab 22).  Thereafter, on September 14, 
2015, USACE conceded that “additional work would be required to remove the rip rap 
 
5 The parties did not include a copy of appellant’s proposal within the record, but it is 
undisputed that appellant submitted a proposal for $85,481.01 and 14 additional 
days to perform these tasks (JSUMF ¶ 104). 

11 
 
from the berm while maintaining the level of flood protection. . . .” (app. supp. R4, 
tab A6 at H00187). 
 
43. On October 19, 2015, USACE determined that the rip-rap work constituted 
a differing site condition and issued unilateral Modification A00001 (app. supp. R4, 
tab A5 at H00189-90; see also R4, tab 2 at COE000146).  Ultimately, over 1,200 tons 
of additional rip-rap were removed from the project site (app. supp. R4, tabs A157, 
A267, A300). 
Crane  
44. Specification § 41 22 13.14 required Healtheon to provide an adjustable 
portable gantry crane6 suitable for outdoor service.  The specification also stated that 
the government would provide appellant with an electric-operated trolley that must be 
included within the lifting height (R4, tab 3 at COE001251; see also tr. 2/198). 
 
45. On March 8, 2016, the Corps informed appellant that the contract would be 
modified because USACE would no longer provide a trolley.  Instead, the government 
directed Healtheon to provide a manually operated trolley and chain hoist (app. supp. 
R4, tab A6 at H00723-26; tr. 2/199). 
 
46. On June 9, 2016, USACE issued an RFP to “chang[e] the gantry crane 
from being electrically powered to chain operated” (app. supp. R4, tab A283 
at H00728-29).  Thereafter, the Corps issued a revised RFP specifying that appellant 
provide a “portable gantry crane” (app. supp. R4, tab A6 at H00750-53; see also tr. 
2/207-08). 
 
47. On April 5, 2017, Healtheon sent the government a proposal for $3,698.21.  
The proposal included a credit of $13,150 for the reduced cost of the manual gantry 
crane and an additional $16,086.01 for direct costs.  (R4, tab 260 at COE57612-23)  
 
48. On June 7, 2018, USACE finalized the gantry crane change order by 
issuing Modification No. A00012.  The modification resulted in a net deduction of 
$9,730.33.  (R4, tab 16 at COE001399; see also R4, tab 260 at COE57612-23) 
 
 
6 Specification § 41 22 13.14 does not define the term “portable gantry crane.”  But, 
Randy Persica, the Corps’ administrative contracting officer, discussed the 
gantry crane in detail during his oral testimony.  Specifically, he defined a 
gantry crane as a crane “that mounts . . . to the framework of the building . . .  . 
suitable for lifting the largest piece of equipment inside the pump station for 
maintenance and repair.”  (Tr. 4/145) 

12 
 
Fuel System Piping  
49. Contract Drawing Nos. M-030, M-031 and S-026 contained designs for 
fuel tanks and related system piping for the project site (R4, tab 4 at COE001297, 
COE001317-18). 
 
50. It is undisputed that in April 2016, the Corps changed its design for the fuel 
tanks and related system piping to avoid penetrating the concrete flood wall (JSUMF  
¶ 158).    
 
51. On April 27, 2016, Healtheon submitted RFI-0030, in which it informed 
USACE: 
 
Healtheon’s fuel systems supplier has identified 
components missing from the existing tank modification 
scope, which would impede correct function based on the 
general fuel systems integration concept . . . . Healtheon 
recommends the addition of the float and integration into 
the new system, which will require engineering and 
installation supervision not included in the original scope. 
 
(App. supp. R4, tab A6 at H00592) 
 
52. On May 24, 2016, the Corps acquiesced to appellant’s recommendations 
set forth in RFI-0030 (id.). 
 
53. On June 10, 2016, the Corps issued Modification No. A00005, which 
rerouted the supply and return fuel piping over the top of the floodwall (app. supp. R4, 
tab A6 at H00600).  Additionally, the Corps directed appellant to “delete” Contract 
Drawing Nos. M-030, M-031, and S-026 and replace said drawings with substitutes 
dated April 11, 2016 (id. at H00601).  
 
54. On October 13, 2016, the Corps proposed additional adjustments to the 
system in revised Contract Drawing No. M-031 dated October 6, 2016 (app. supp. R4, 
tab A6 at H00612). 
 
55. On October 28, 2016, the Corps requested that appellant provide a pricing 
proposal to “revise[] the location of the primary vents and to add foot valves to the 
day tank return pumps as detailed in DWG M-031, FILE NO. H-4-47769, Rev. 2 dated 
10-6-16.”  The Corps issued this change directive with a not-to-exceed price of $8,500.  
(App. supp. R4, tab A6 at H00614) 
 

13 
 
56. On December 16, 2016, appellant submitted a revised pricing proposal 
informing the Corps that it would incur $48,973.67 for the directed fuel system piping 
changes (app. supp. R4, tab A6 at H00627, 639, 641). 
 
57. On June 7, 2018, USACE issued unilateral Modification No. A00012 for 
$26,410.99 and extended the contract completion date by five non-compensable 
calendar days (app. supp. R4, tab A6 at H00677-79). 
 
Electrical Modifications 
 
58. On September 30, 2016, Healtheon submitted RFI-0045, informing 
USACE that certain electrical equipment required by the contract was not certified by 
the manufacturer to meet contractually required wind pressure ratings.  According to 
appellant, the only equipment that could be used required a different configuration and 
different electrical controls.  (App. supp. R4, tab A6 at H00790) 
 
59. On October 27, 2016, the Corps responded to RFI-0045 stating that a 
“modification will be provided to address the change and a wiring diagram will be 
provide[d] to show how the fans and dampers are to be controlled” (id.). 
 
60. On November 2, 2016, the Corps issued Modification No. A00007 
“add[ing] a remote generator annunciator panel and fuel control panel emergency stop 
to the safe house[,] and . . . provid[ing] a wiring diagram for the generator building 
exhaust fan and damper controls” (app. supp. R4, tab A6 at H00794-95).  The Corps 
authorized a not-to-exceed price of $65,000 for this change and requested a formal 
pricing proposal from Healtheon (id. at H00795). 
 
61. Throughout December 2016, appellant submitted multiple revised pricing 
proposals for this work.  Healtheon transmitted its final proposal to USACE on 
January 25, 2017, for $106,782.84.  (App. supp. R4, tab A6 at H00844-47) 
 
62. On June 7, 2018, USACE issued unilateral Modification No. A00012 for 
$86,250.78 in electrical modifications plus a seven calendar-day, non-compensable 
time extension (R4, tab 16; finding 9). 
 
Contaminated Soil  
 
63. The contract identified certain plots of contaminated soil for disposal at the 
project site.  Specifically, paragraph 3.1.2 of specification 31 23 16.16 12 required 
appellant to “excavate all contaminated soil as called out on the Contract Drawings.  
All contaminated soil shall be handled and disposed of in an industrial waste landfill in 

14 
 
accordance with local, state, and federal regulations.” (R4, tab 3 at COE001158)  The 
contract price to perform this work was $98,000 (R4, tab 3 at COE000174).   
 
64. Note 3 on Contract Drawing No. C-002 provided:  
 
SOIL UNDER AND ADJACENT TO EXISTING 
PLATFORM CONTAINS SIGNS OF HYDRAULIC 
FLUID SPILL.  SOIL SHALL BE PROPERLY 
REMOVED AND DISPOSED OF IN AN INDUSTRIAL 
WASTE LANDFILL. THE SPILL IS THE FULL 
LENGTH OF THE WEST SIDE OF THE PLATFORM 
(60 FEET), 6 FEET WIDE, AND AN ESTIMATED 
DEPTH OF 1.5 FOOT. 
 
(R4, tab 4 at COE001276) (capitalization in original.) 
 
65. On November 16, 2016, USACE submitted a request for an internal field 
modification after it determined that the amount of contaminated soil to be removed was 
greater than what was identified in the contract drawings.  The initial estimated cost for 
an additional 22 cubic yards of work was $48,600.  (R4, tab 258 at COE038995) 
 
66. On December 14, 2016, USACE, via Modification No. A00008, directed 
Healtheon to proceed with this change for the not-to-exceed price of $5,000 (app. 
supp. R4, tab A6 at H00891-96). 
 
67. In accordance with the government’s directed change, Healtheon and its 
subcontractor, Global Contracting LLC, timely performed the changed work and 
submitted a pricing proposal in the amount of $30,865.26 (app. supp. R4, tabs A6 
at H00901-11, A28 at COE 057984; see also tr. 2/168-77).   
 
68. On June 6, 2018, USACE issued unilateral Modification No. A00012 to 
“Remove Contaminated Soil” for $9,207.13 and 1 calendar day (R4, tab 16 
at COE001397-99).   
  
Liquidated Damages 
69. The contract incorporated the full text of certain FAR clauses, including 
FAR 52.211-12, LIQUIDATED DAMAGES – CONSTRUCTION (SEP 2000).  
FAR 52.211-12 includes a blank space that allows contractual parties to fill in an 
agreed-upon daily liquidated damages rate.  With regards to liquidated damages, the 
contract provided: 
 

15 
 
(a) If the Contractor fails to complete the work within the 
time specified in the contract, the Contractor shall pay 
liquidated damages to the Government in the amount of 
$2,210.007 for each calendar day of delay until the 
work is completed or accepted. 
 
(b) If the Government terminates the Contractor's right to 
proceed, liquidated damages will continue to accrue 
until the work is completed.  These liquidated damages 
are in addition to excess costs of repurchase under the 
Termination clause. 
 
(R4, tab 3 at COE000185-86) 
 
70. It is undisputed that USACE assessed and withheld liquidated damages in 
the amount of $559,040 from June 30, 2016, through March 20, 2017 (R4, tab 2 
at COE000121-22; JSUMF ¶ 12).  
 
Request for Equitable Adjustment, Claim, and COFD 
71. On February 26, 2021, appellant submitted a request for equitable 
adjustment (REA) to the Corps seeking $869,373.56 and a time extension of 
294 calendar days (R4, tab 191 at COE 004334).  The government never responded to 
the merits of appellant’s REA. 
 
72. On July 23, 2021, appellant submitted a certified claim to the Corps for a 
contracting officer’s final decision (R4, tab 1).  Appellant’s claim is substantially 
similar to its REA with the claim amount increased to $870,249.56 (id. at COE 00001; 
R4, tab 191).  Notably, appellant’s claim does not mention the government’s alleged 
failure to disclose the correct classification for the metal building at the time of 
contract award or any attempts to misrepresent the correct classification to appellant 
(see generally R4, tab 1). 
 
73. On December 6, 2021, the contracting officer issued a final decision 
denying appellant’s claim in its entirety (R4, tab 2). 
 
74. Healtheon timely filed an appeal at the Board on January 4, 2022, and the 
appeal was docketed as ASBCA No. 63145. 
 
 
7 In the contract, the parties highlighted the $2,210 daily rate by writing it in red ink 
(R4, tab 3 at COE000186) (emphasis in original). 

16 
 
The Parties’ Experts: Oral Testimony and Reports 
 
75. The Board conducted a six-day hearing wherein the parties presented 
six fact witnesses as well as oral testimony from each party’s scheduling expert.  Both 
experts prepared a delay analysis, which included the experts’ opinions regarding the 
causes of delay on the project, responsibility for each delay, and the impact of each 
delay (R4, tab 262; app. R4 supp., tab A267). 
 
76. Healtheon’s scheduling expert, Mr. Richard Ott, presented extensive 
testimony at the hearing about his detailed schedule analysis of the project.  Mr. Ott 
received a Bachelor of Science degree in civil engineering from the University of 
Missouri, Columbia (app. R4 supp., tab A267 at HE00089).  He subsequently worked 
as a project engineer and project superintendent for multiple companies in Missouri 
and Virginia (id.).  He holds professional licenses in three states and is a member of 
the American Society of Civil Engineers and the National Society of Professional 
Engineers (id.).  In his current role as the president of Milestone Consultants, Inc., 
he prepares and analyzes construction schedules and claims (tr. 3/53-54), the Board 
accepted Mr. Ott as an expert in construction scheduling and damages analysis (tr. 
3/58). 
 
77. Mr. Ott submitted to the Board an expert report
8 which contained the 
following conclusions:  (1) the Corps is responsible for 278 days of compensable delay 
to the project; (2) the Corps is responsible for an additional 94 days of excusable,  
non-compensable delay; (3) appellant is entitled to $1,214,015.63 in damages for 
directed changes or differing site conditions that it allegedly encountered at the project 
site; and (4) appellant is entitled to the remission of $559,040 in liquidated damages 
withheld by the Corps (app. supp. R4, tab A267a at 2).   
 
 
8 In his original report, Mr. Ott concluded that the Corps is responsible for 
297 compensable days of delay and 75 days of excusable, non-compensable 
days of delay (app. supp. R4, tab A267 at HE00005).  In addition, Mr. Ott 
concluded that Healtheon is entitled to $620,498.55 in additional compensation 
for directed changes or differing site conditions it encountered at the project 
site, as well as the remission of $559,040.00 in liquidated damages withheld by 
the Corps (id.).  Thereafter, Mr. Ott submitted an updated cost summary that 
revised all of the aforementioned delay and damage calculations (app. supp. R4, 
A267a).  Mr. Ott’s two-page updated cost summary is confusing, as it presents 
the new delay and damage calculations in revised tables without much 
explanation or context (id.).  Nevertheless, we will rely solely on the 
calculations proffered within Mr. Ott’s updated cost summary. 

17 
 
78. Notably, the conclusions contained within Mr. Ott’s report directly 
contradict much of the delay analysis proffered within appellant’s certified claim.  
Although both documents rely upon the same project schedule updates and state that 
they utilize the same methodology to interpret these documents, the two documents 
come to significantly different conclusions.  Specifically, while the claim states that 
appellant delayed progress by 29 days and that the government delayed progress by 
325 days, Mr. Ott concludes that the government is responsible for 372 delay days 
(297 compensable, 75 non-compensable) and that appellant actually sped up project 
completion by 3 days (R4, tab 1; app. supp. R4, tab 267).  In addition, the claim and 
Mr. Ott’s report sometimes attribute very different sources to alleged delays as well as 
varied degrees of magnitude to such delays.  For example, if we consider the time 
period between May 31, 2016, and June 30, 2016, the claim states that the critical path 
was delayed by 25 days due to issues with the 480V service, while Mr. Ott’s report 
states that the critical path was delayed by 2 days due to issues with discharge pipes 
and tubing (R4, tab 1 at X; app. supp. R4, tab 267 at X).  We find that these 
discrepancies greatly reduce the reliability of appellant’s expert report and 
significantly weaken appellant’s arguments that rely upon Mr. Ott’s delay calculations. 
 
79. The government presented its scheduling expert, Mr. William Manginelli.  
Mr. Manginelli received a Bachelor of Science degree with honors from the United 
States Merchant Marine Academy (R4, tab 262 at COE059410).  Mr. Manginelli 
began his career at the Corps’ Marine Design Center, where he eventually assumed the 
role of senior project manager (id. at COE059411).  More recently, Mr. Manginelli 
transitioned to the private sector.  After working as a resident construction manager, 
Mr. Manginelli assumed his current role as president of Trauner Consulting Services 
(id.at COE059410).  He holds several professional memberships, has developed and 
led countless industry training programs, and has written two editions of a book on 
construction claims and schedule analysis (id. at COE059413-20; tr. 6/8).  The Board 
accepted Mr. Manginelli as an expert in schedule and delay analysis, and construction 
damages (tr. 6/11). 
 
80. Mr. Manginelli submitted an expert report outlining the government’s 
conclusion that appellant has been adequately compensated for any directed changes 
or differing site conditions that appellant encountered at the project site (R4, tab 262).  
Specifically, Mr. Manginelli’s report cites 39 documents within the record to support 
his opinion that six of the seven activities at issue did not affect the critical path of the 
project (id. at COE059409). 
 
81. With the exception of 13 delay days that both experts attribute to the 
480 volt service change, Mr. Manginelli asserts that none of the other-directed changes 
or differing site conditions appellant experienced at the project site delayed the overall 
completion of the project by delaying the critical path (id. at COE059396). 
 

18 
 
82. In addition, Mr. Manginelli determined that (1) Healtheon was the direct 
cause of at least 264 of the 328 days of delay; (2) of the remaining 64 calendar days, 
Healtheon was provided 63 days of time extensions; and (3) appellant is entitled to an 
additional time extension of one day (id.). 
 
83. The government provided the Board with multiple graphs that concisely 
summarize Mr. Manginelli’s conclusions, including the table below:   
 
 
(Gov’t br. at 45) 
 
84. Following the hearing of this appeal, the parties engaged in extensive 
briefing.  The appeal is now before the Board for decision. 
 
DECISION 
 
 Our analysis is split into three different parts.  First, we delve into the merits of 
appellant’s arguments regarding the construction of the metal building.  Next, we 
explore appellant’s arguments regarding the alleged defective specifications and 
differing site conditions encountered at the project site.  Finally, we turn to appellant’s 
assertion that it is entitled to the remission of $559,040 in liquidated damages. 
 
  


19 
 
Metal Building 
 
 Appellant argues that the government provided defective specifications, 
breached the duty of good faith and fair dealing, constructively changed the contract, 
and improperly withheld superior knowledge regarding the generator building.  
Specifically, appellant alleges that it reasonably interpreted the specifications to 
support the construction of a fully enclosed building.  According to Healtheon, the 
contract did not contain an express statement of the metal building’s enclosure 
classification.  In addition, appellant alleges that the government did not clarify that 
the building was to be fabricated as a “partially enclosed” structure able to withstand 
uplift forces until October 2015, halfway through the project.  By withholding this 
information from appellant, Healtheon contends that the government failed to 
cooperate, delayed the proper fabrication and erection of the building, and ultimately 
delayed the critical path of the project.  For these delays, appellant argues that it is 
entitled to a 137-day compensable time extension and $197,563.59 of extended 
overhead.  (App. br. at 31-40)  
 
 Conversely, the government argues that Healtheon is solely responsible for all 
delays associated with the metal building.  According to the government, appellant did 
not follow the contract specifications because it did not employ a professional engineer 
with experience with the ASCE 7 manual to review the metal building specifications 
in accordance with contract requirements.  The government contends that the engineer 
was required to then make an independent determination of the building enclosure 
classification and design the building in conformance with that classification.  Instead, 
the government alleges that Healtheon’s subcontractor, ABC, relied exclusively on a 
building enclosure classification contained within a purchase order submitted by 
Healtheon and that no engineer reviewed the classification during the project.  Given 
this, the government asserts that it cannot be held liable for any delays appellant 
experienced by deviating from the specifications it received.  As such, it requests that 
the Board disregard appellant’s defective specification, superior knowledge, 
constructive change, and good faith and fair dealing arguments and deny appellant’s 
requests for any time extensions or overhead costs in connection with the construction 
of the metal building.  (Gov’t br. at 21-33)  
 
For Healtheon to shift the burden of its extended overhead costs to the 
government, appellant must establish two things:  first, that the government-furnished 
design specifications were defective, and second, that there is a causative link between 
the alleged design defect and the additional costs and time that Healtheon spent to 
correct the defect.  KiewitPhelps, ASBCA No. 61184, 23-1 BCA ¶ 38,254 at 185,765. 
 
The issue of defective specifications is governed by the Spearin doctrine.  The 
Spearin doctrine states that “[w]hen the [g]overnment provides specifications directing 
how a contract is to be performed, the [g]overnment warrants that the contractor will 

20 
 
be able to perform the contract satisfactorily if it follows the specifications.”  Hercules 
Inc. v. United States, 516 U.S. 417, 425 (1996) (citing United States v. Spearin, 
248 U.S. 132, 136); see also Essex Electro Eng’rs, Inc. v. Danzig, 224 F.3d 1283, 
1289 (Fed. Cir. 2000) (“When the government provides a contractor with defective 
specifications, the government . . . breache[s] the implied warranty that satisfactory 
contract performance will result from adherence to the specifications, and the 
contractor is entitled to recover all of the costs proximately flowing from the breach”).  
It is well-established that the Spearin doctrine’s implicit warranty applies to design 
specifications that permit no deviations in contract performance and that the doctrine 
does not apply to performance specifications that “merely set forth an objective 
without specifying the method of obtaining the objective.”  White v. Edsall Constr. 
Co., 296 F.3d 1081, 1084 (Fed. Cir. 2002).   
 
In addition, the Spearin doctrine does not negate the contractor’s duty to 
investigate or inquire about a patent ambiguity, inconsistency, mistake, or obvious 
error that the contractor recognized or should have recognized within the 
specifications.  Id. at 1085.  “A design defect is not sufficiently patent so as to trigger a 
duty to inquire unless the defect constitutes a ‘major patent discrepancy, or obvious 
omission, or a drastic conflict in provisions’” that would be clearly evident to a 
reasonable contractor.  KiewitPhelps, 23-1 BCA ¶ 38,254 at 185,766.  As such, 
contractors are not expected to “ferret out hidden or subtle errors in the specifications” 
to meet their duty to inquire.  Id. (citing Edsall, 296 F.3d at 1085).   
 
We agree that appellant deviated from the specifications by failing to have an 
engineer review the contract and determine the appropriate enclosure classification for 
the metal building.  Specification 13 34 19 is entitled “Metal Building Systems” 
(finding ¶ 12).  Paragraph 1.1 states that the work covered by the section includes all 
operations with the design and fabrication of a metal building system (id.).  Paragraph 
1.4.1 states, “[c]alculations and drawings shall be signed and sealed by a registered 
professional engineer” (id.).  In addition, paragraph 1.4.1.2 states that design loads 
must “[c]onform to the requirements of MBMA MBSM, ASCE/SEI 7, and the 
building code applicable to the project geographical location” (id.).  The parties did 
not provide the Board with a copy of the 2002 ASCE 7 referenced by the 
specifications, but appellant did provide a copy of the 2006 Metal Building Systems 
Manual (MBSM), which “focuses on how to apply the loads specified by . . . ASCE 7” 
and contains a large number of equations from the ASCE 7 manual regarding design 
loads (finding ¶ 13, n.2).   
 
A cursory review of the 2006 MBSM reveals that the engineer would take the 
specifications for the metal building and input them into the equations provided within 
the ASCE 7 manual to determine the appropriate classification for the structure (id.).  
It is undisputed that Healtheon hired the engineering firm Waldemar Nelson 
Engineering to work with it on the project, but the firm did not review any of ABC’s 

21 
 
submittals (finding ¶ 16).  Further, there is no record evidence that calculations were 
done by either Healtheon or ABC to support the initial conclusion that the metal 
building would be fully enclosed (finding ¶ 15).  The evidence before the Board 
indicates that Healtheon failed to conform to the specifications by having a 
professional engineer review the contract and provide calculations and drawings to 
support an enclosure classification for the metal building.  Given this, we must deny 
appellant’s defective specifications argument. 
 
We reject appellant’s other arguments for similar reasons.  First, appellant has 
not proven that the government constructively changed the contract by requiring the 
metal building to be partially enclosed.  A constructive change “arises from the 
contractor’s performance of work ‘beyond the contract requirements without a formal 
order, either by an informal order or due to the fault of the [g]overnment.’”  Tkacz 
Eng’g, LLC, ASBCA No. 60358, 18-1 BCA ¶ 36,940 at 179,962 (internal citations 
omitted).  It is well-established that there are four elements that must be satisfied to 
prevail on a constructive change claim.  The first is that the contractor was compelled 
by the government to perform work not required by the terms of the contract.  Id.  The 
evidentiary record reveals that appellant was required by the contract specifications to 
employ a professional engineer well-versed in the ASCE 7 manual to make an 
independent determination of the metal building’s classification and design the 
building in accordance with that classification (finding ¶ 12).  Appellant did not follow 
these specifications when it classified the building as fully enclosed.  Contrary to 
appellant’s contentions, the government merely required appellant to comply with 
these specifications when it informed appellant that the building should be classified as 
partially enclosed.  As such, appellant has failed to satisfy the first element of the 
constructive change doctrine, and we must deny appellant’s constructive change 
argument. 
 
Second, appellant has not proven that the government breached its duty of good 
faith and fair dealing.  Breach of such a covenant can be proven in a myriad of ways, 
including a “lack of diligence and interference with or failure to cooperate in the other 
party’s performance.”  Metcalf Constr. Co. v. United States, 742 F.3d 984, 990 
(Fed. Cir. 2014) (citing Malone v. United States, 849 F.2d 1441, 1445 (Fed. Cir. 
1988)).  Appellant, as the proponent of this claim, bears the burden of proof.  “The 
proper inquiry regarding [this] duty often boils down to questions of ‘reasonableness’ 
of the government’s actions.”  Relyant, LLC, ASBCA No. 59809, 18-1 BCA ¶ 37,085 
at 180,539.  Given that appellant did not comply with the explicit requirements of the 
contract and the government simply enforced the specifications that both parties 
agreed to follow, we must conclude that any challenge to the government’s duty of 
good faith and fair dealing regarding the metal building is meritless.  As such, we 
similarly deny appellant’s good faith and fair dealing argument. 
 

22 
 
Finally, to the extent that appellant makes a superior knowledge claim, we do 
not possess jurisdiction over that claim because it is a new claim that appellant did not 
present to the contracting officer.  Nassar Grp. Int'l, ASBCA No. 58451 et al.,  
19-1 BCA ¶ 37,405 at 181,831.  While an appellant may introduce on appeal 
additional facts that do not alter the nature of the original claim, its appeal must be 
based upon a common or related set of operative facts to those presented to the 
contracting officer.  Id.  A claim is new when it “presents a materially different factual 
or legal theory” of relief.  Id. (quoting Lee's Ford Dock, Inc. v. Sec'y of the Army,  
865 F.3d 1361, 1369 (Fed. Cir. 2017).  Materially different claims will necessitate a 
focus on a different or unrelated set of operative facts.  Id.  The theory of superior 
knowledge is unique in that it normally relies on operative facts in existence before 
award.  Grumman Aerospace Corp. v. Wynne, 497 F.3d 1350, 1357 (Fed. Cir. 2007) 
(addressing Board's determinations about the contractor's knowledge during  
“pre-award period” and “vital knowledge or the opportunity to obtain that knowledge 
before contract entry.”)  Specifically, it requires appellant to present facts in the claim 
relating to a disparity in knowledge between the parties at contract award of which the 
government was aware.  Here, appellant’s claim does not mention the government’s 
alleged failure to disclose the correct classification for the metal building at the time of 
contract award or any attempts to misrepresent the correct classification to appellant 
(finding ¶ 72).  Given this, we must conclude that appellant’s superior knowledge 
claim is a materially different claim than those presented to the contracting officer.  
Accordingly, we do not have jurisdiction to consider such a new claim. 
 
Although appellant presented various arguments to support the award of 
additional time and damages in connection with its work on the metal building, the 
record evidence indicates that appellant did not follow the specifications agreed to by 
both parties within the contract.  As such, we reject appellant’s arguments and deny 
entitlement to additional damages and time extensions for the metal building. 
 
Directed Changes 
 
 Appellant also alleges that it is entitled to additional costs as well as time 
extensions, both compensable and non-compensable, for government-directed changes 
to seven distinct elements of the project:  the gantry crane, metal building louvers, 
480V service to the project site, fuel system piping, CO-03 electrical modifications, 
rip rap, and contaminated soil (app. br. at 27-58).  The following chart lays out the 
time extensions and damages sought for each activity: 
 
 
 
 

23 
 
Activity Compensable 
Days Sought 
Non-Compensable 
Days Sought 
Costs Sought 
Gantry Crane 91 11 $13,428.54 
Metal Building 
Lovers 
12 7  
480V Service 35  $50,472.45 
CO-03 Electrical 
Modifications 
3 40 $81,669.44  
 
($4,326.21 extended 
overhead + 
$77,343.23 direct 
costs) 
Fuel System Piping   $22,562.68 
Rip-rap  36 $19,436.95 
Contaminated Soil   $21,658.13 
 
(App. br. at 27, 45, 49, 51, 57-58; app. reply br. at 8, 20, 23-26) 
 
 It is well-established that Healtheon bears the burden of proof to establish that 
any alleged compensable or non-compensable delay ultimately delayed project 
completion.  Specifically, to demonstrate entitlement for a compensable delay, 
a contractor must prove:  (1) specific delays were attributable to government causes; 
(2) such delays resulted in delay in completion of the overall project; and (3) the 
government-caused delays were not concurrent with delays within the contractor’s 
control.  Env’t Chem. Corp., ASBCA Nos. 59280, 60760, 22-1 BCA ¶ 38,166 
at 185,365.  To demonstrate entitlement for a non-compensable delay, a contractor 
must show that (1) the delay resulted from “unforeseeable causes beyond the control 
and without the fault or negligence of the Contractor” and (2) the unforeseeable cause 
delayed overall contract completion by affecting the critical path of performance.  
Sauer Inc. v. Danzig, 224 F.3d 1340, 1345 (Fed. Cir. 2000); see also Ken Laster Co., 
ASBCA Nos. 61292, 61828, 20-1 BCA ¶ 37,659 at 182,855; FAR 52.249-10(b)(1).  
“Proof of damage is also an element of entitlement and, while mathematical certainty 
is not required, some proof of damage is required.”  L.C. Gaskins Constr. Co., ASBCA 
No. 58550 et al., 18-1 B.C.A. ¶ 36,978 at 180,122.   
 
 The government has already accepted partial responsibility for directing 
additional work and for the existence of differing site conditions in connection with all 
seven of the aforementioned activities.  In response, the government has compensated 
appellant for portions of the additional work that it and its subcontractors performed to 

24 
 
complete each of the seven activities (gov’t br. at 36).  Appellant now seeks additional 
compensation and time extensions to cover its remaining costs and delays. 
 
 Appellant has not proven that it is entitled to any additional damages or 
compensable time extensions.  To meet its burden of proof, appellant relies heavily 
on the oral testimony and expert report of its scheduling expert, Mr. Ott.  However, 
Mr. Ott’s conclusions are unpersuasive for two reasons.  First, Mr. Ott “corrected” 
all of his delay and damage calculations in a separate document from his expert report 
(finding ¶ 77, n.8).  This updated cost summary did not outline all of the new 
allegations of delay and damages in a clear and concise manner with citations to the 
record evidence (id.).  Because of this, Mr. Ott’s updated cost summary can be boiled 
down to two revised tables of numbers that are presented without any support or 
sufficient explanation as to how he arrived at each of his new conclusions.  Second, 
Mr. Ott purports to utilize the same schedule updates and methodology employed in 
appellant’s certified claim to support the analysis set forth within his expert report, but 
appellant’s claim and Mr. Ott’s report come to drastically different conclusions 
regarding the number of alleged days of delay and the claimed causes or magnitude of 
such alleged delays without explanation for the major discrepancies (finding ¶ 78).  
These two shortcomings negate appellant’s attempts to meet its burden of proof using 
Mr. Ott’s oral testimony and expert report and render the report unpersuasive at best 
and unreliable at worst. 
 
 The evidence reveals that appellant is only entitled to one additional day in  
non-compensable time extensions for any directed changes or differing site conditions 
encountered during contract performance.  To show that appellant is not entitled to any 
additional damages and no more than one day in time extensions, the 
government relies upon the oral testimony and expert report proffered by its 
scheduling expert, Mr. Manginelli.  In his report, Mr. Manginelli cites 39 documents 
within the record to support his opinion that six of the seven activities at issue did not 
affect the critical path of the project (finding ¶ 80).  In addition, he fairly showcases 
how the government’s actions led appellant to perform additional 480 volt feeder work 
that requires the government to award appellant one additional day in time extensions.  
Mr. Manginelli even filled some of the gaps left by appellant’s expert testimony and 
report.  Persuaded by Mr. Manginelli’s oral testimony and expert report, we must 
conclude that appellant is only entitled to one additional day of time extensions in 
connection with additional work performed in connection with the 480V feeder.  
 
 We agree with Mr. Manginelli’s conclusion that any directed changes appellant 
encountered at the project site in connection with the gantry crane, the metal building 
louvers, the emergency shelter building, CO-03 electrical modifications, fuel system 
piping, rip-rap, and contaminated soil did not affect the critical path of performance.  
As the graphic table provided by Mr. Manginelli states, the record evidence reveals 
that there were only eight schedule impacts that affected the critical path:   

25 
 
 
(Findings ¶¶ 82-83).  
 
Specifically, these eight impacts were the late submittals of pipe pile and 
generator building drawings, the late submittal of the pre-engineered emergency 
shelter building, platform beams and slab, planned progress, electrical systems 
installation, the existing 480V modification, the commission/testing and demo/removal 
of pumps and equipment, and repairing defective work that appellant performed on the 
emergency shelter building (finding ¶ 83).  None of these critical work components 
stem from any directed changes or differing site conditions caused by the government, 
except the one day of critical work for which the government is responsible in 
connection with the 480V modification.  Instead, the record evidence reveals that 
Healtheon is responsible for every day of delay it experienced beyond those accounted 
for in the time extensions totaling 63 days that the government has already provided.   
 
 In summary, appellant has not met its burden of proof to show that it is entitled 
to any additional compensation or time extensions for the directed changes or differing 
site conditions it encountered in connection with seven of the remaining issues within 
this appeal:  the gantry crane, the metal building louvers, emergency shelter building, 
CO-03 electrical modifications, fuel system piping, rip rap, and contaminated soil.  
As such, we deny appellant’s requests for additional compensation or time extensions 
in connection with these seven issues.  The record presented contains only evidence to 
support an additional day in non-compensable time extensions in connection with the 
work appellant completed on the 480 volt feeder.  Given this, we grant appellant a 
time extension of one day for that work. 
 
 
 


26 
 
Liquidated Damages 
 
 Finally, we turn to appellant’s request for the remission of $559,040 in 
liquidated damages.  It is well established that “the Government bears the initial 
burden of proving that the contractor failed to meet the contract completion date and 
that the period of time for which it assessed liquidated damages is correct.”  Sauer, 
Inc., ASBCA No. 62395, 21-1 BCA ¶ 37,845 at 183,753 (citing KEMRON Env’tl 
Servs. Corp., ASBCA No. 51536, 00-1 BCA ¶ 30,664 at 151,399).  “Once the 
government has overcome the initial burden, it is incumbent upon appellant to show 
either that the government incorrectly assessed the damages under the contract or that 
appellant's failure to comply with the terms of the contract was excusable.”  Derian, 
Inc., ASBCA No. 62957, 23-1 BCA ¶ 38,425 at 186,759 (citing Chem-Care Co., 
ASBCA No. 53614, 06-2 BCA ¶ 33,427 at 165,726).  Here, appellant alleges that its 
failure to comply with the contract completion date was excusable because of all the 
directed changes and differing site conditions it encountered at the project.  
 
The contract contains a liquidated damages clause that requires Healtheon to 
pay $2,210 in liquidated damages for each calendar day of delay until the work is 
completed or accepted (finding ¶ 69).  It is undisputed that USACE assessed and 
withheld liquidated damages in the amount of $559,040 from June 30, 2016, through 
March 20, 2017 (finding ¶ 70).  The Board has determined that Healtheon was 
responsible for 264 days of delay, and we are persuaded by Mr. Manginelli’s 
determination that no additional concurrent delays must be granted to appellant.  
Having determined that Healtheon bears the sole responsibility for 264 days of delay, 
the government was entitled to collect liquidated damages for those days.  As such, the 
government is entitled to retention of the collected liquidated damages.
9 
 
CONCLUSION 
 
 Appellant has not proven that it is entitled to any additional compensation in 
connection with the work it performed under the contract.  Appellant has similarly not 
proven that it is entitled to the remission of any liquidated damages.  Appellant is, 
however, entitled to one additional day of time extensions for its work on the 480-volt 
feeder.   
  
 
9 The government has chosen only to assess and withhold $559,0400 for delays 
between June 30, 2016, and March 20, 2017, but based on our calculation, 
264 days of delay x $2,210 per day = $583,440.  See R4, tab 2 at COE000122. 

27 
 
Therefore, we grant appellant a one-day non-compensable time extension and deny the 
remainder of the appeal. 
 
Dated:  July 24, 2025 
  
 
 
 OWEN C. WILSON 
Administrative Judge 
Acting Chairman 
Armed Services Board 
of Contract Appeals 
  
I concur 
 
 
 
MICHAEL N. O’CONNELL 
Administrative Judge 
Vice Chairman 
Armed Services Board 
of Contract Appeals 
 I concur 
 
 
 
 DAVID B. STINSON 
Administrative Judge 
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 No. 63145, Appeal of 
Healtheon, Inc., rendered in conformance with the Board’s Charter. 
 
 Dated:  July 24, 2025 
 
 
 
 
 
 
 
 
PAULLA K. GATES-LEWIS 
Recorder, Armed Services 
Board of Contract Appeals