ARMED SERVICES BOARD OF CONTRACT APPEALS 
 
 
OPINION BY ADMINISTRATIVE JUDGE MCNULTY 
 
The appeals arise under a contract for repairs and renovation to Building 102 
at Camp Edwards, Bourne, Massachusetts.  The appeals involve several claims for 
alleged additional work for windows, cable trays, underground plumbing, footings, 
demountable partitions, damage to interior finishes, parapet wall leaking, retainage and  
Simpson ties.  The window claim includes a delay component.  We have jurisdiction 
under the Contract Disputes Act, 41 U.S.C. §§7101-7109 (CDA).  We sustain the 
appeals in part and deny in part.  We decide entitlement only. 
 
FINDINGS OF FACT 
 
 Based on the record in these appeals we make the following findings of fact.  
 
General Matters 
 
1.  Contract No. W912SV-10-D-0013 was a small business set-aside, Indefinite 
Delivery-Indefinite Quantity (IDIQ) Multiple Award Task Order Contract (MATOC) 
for maintenance, repair, construction, and design build services in support of 
Massachusetts Army National Guard activities.  The MATOC contract was awarded 
August 13, 2010 (R4, tab 1 at 1-2). 
 
2.  By Notice of Proposed Task Order Proposal dated June 18, 2011, the 
government sought to completely renovate Building 102, located on Camp Edwards in 
Bourne, Massachusetts.  The building had been unoccupied for several years prior to 
the award of the contract (tr. 3/100-01).  The proposed task order was issued subject to 
the availability of funds, however, the magnitude of the projected was listed between 
Appeals of - )  
 )  
Kallidus Technologies ) ASBCA Nos. 61377, 61976 
 )  
Under Contract No. W912SV-10-D-0013 )  
   
APPEARANCE FOR THE APPELLANT: Mr. Divyang Patel  
  President 
 
APPEARANCES FOR THE GOVERNMENT: Dana J. Chase, Esq. 
    Army Chief Trial Attorney 
 MAJ Danielle C. Naser, JA 
    Trial Attorney 

2 
 
$1,000,000 and $5,000,000 (R4, tab 156 at 1-2).  The project had been designed by 
Reinhardt Associates (RAI), an architect/engineer firm (R4, tab 3 at 1; tr. 1/32).   
 
3.  Building 102 is an approximately 16,000 square foot structure comprising a 
central segment, designated Unit 300, which is a two-story cast-in-place concrete and 
concrete masonry units (CMU) structure, flanked by two story wood frame structures 
(Units 100 and 500) which are connected to Unit 300 by two single story concrete 
connectors designated Units 200 and 400.  Unit 300 was mostly flat roofed, concrete 
covered with a waterproof membrane, which was to be removed and replaced with 
new single ply membrane (SPM).  The other units had pitched wood roofing systems 
covered with asphaltic shingles (R4, tab 156 at 1, tab 3 at 1, 5, 8, 10, tab 4 at 284; 
tr. 1/97).   
 
4.  Mr. Divyang Patel, Kallidus Technologies, Inc.’s (Kallidus) president, 
prepared Kallidus’ bid for the task order with assistance from an employee of Kallidus, 
Mr. Robert Dandenau (tr. 1/6, 16).  After the bid was submitted the Army requested, 
and Kallidus submitted, a detailed cost breakdown of the labor and material 
components for each Contract Specifications Institute (CSI) division of work required.  
The Army then cancelled the solicitation because the bid prices exceeded the funds 
available (tr. 1/19).  
 
5.  By Notice of Proposed Task Order Proposal dated August 26, 2011, the 
government resolicited the Building 102 renovation work.  The work was to be 
performed pursuant to the plans and specifications included with the solicitation (R4, 
tab 2).  The government was not seeking design build services.  The resolicitation 
provided only seven business days to prepare and submit a bid (id.).  The same day 
Kallidus requested a list of changes made to the solicitation (R4, tabs 176-77).  The 
government agreed to make some changes and provided a synopsis of the changes 
made to the solicitation on August 31, 2011 (R4, tab 178; tr. 1/20-21).  Five general 
changes were listed.  No changes to the windows were listed.  Kallidus viewed the 
changes as simplifying and reducing the cost of the project due to budget constraints 
(tr. 1/21).  The synopsis of changes was incorporated into the solicitation by 
Amendment 0001 (R4, tab 6). 
 
6.  Kallidus submitted its bid, in the amount of $2,882,907 under date of 
September 8, 2011.  The bid included lump sum prices for nine separate options (R4, 
tab 5 at 5). 
 
7.  Under date of September 24, 2011, just before the end of the fiscal year, 
Task Order No. 0002 for the repair and renovation of Building 102 was awarded to 
Kallidus in the amount of $2,882,907.  The performance period was 294 days, 
measured from receipt of the Notice To Proceed (NTP) (R4, tab 8).  

3 
 
8.  The government issued the NTP by letter dated October 24, 2011.  This 
established an original completion date of August 13, 2012 (R4, tab 10).  
 
9.  Modification No. 04, extending the contract completion date by 66 days 
from August 13, 2012 to October 18, 2012, was issued unilaterally under date of 
August 10, 2012 (R4, tab 110).  Bilateral Modification No. 06 for additional work 
directed by the government added 183 days to the performance period, extending the 
completion date to April 19, 2013 (R4, tabs 114-15).  Unilateral Modification No. 10, 
extending the contract completion date from April 19, 2013, to May 31, 2013, was 
issued under date of May 5, 2013 (R4, tab 138).  Bilateral Modification No. 11, 
extending the contract completion date from May 31, 2013, to June 15, 2013, for field 
changes 1-2 and 4-8 was signed by the contracting officer June 27, 2013 (R4, tab 144).  
Unilateral Modification No. 12 extending the contract completion date from June 15, 
2013, to July 31, 2013, was signed by the contracting officer June 28, 2013 (R4, 
tab 145).  Unilateral Modification No. 13 extending the contract completion date from 
July 31, 2013, to September 5, 2013, was signed by the contracting officer August 3, 
2013 (R4, tab 146).  Unilateral Modification No. 14 extending the contract completion 
date from September 5, 2013, to October 31, 2013, was signed by the contracting 
officer on October 1, 2013 (R4, tab 147). 
 
10.  By memorandum dated April 19, 2013, the government’s contracting 
officer’s representative (COR) recommended that the government accept Building 102 
for occupancy (R4, tab 137; tr. 1/86, 3/94-95).  By memorandum dated May 10, 2013, 
the contracting officer notified Kallidus that the government accepted the building for 
occupancy with several noted exceptions including parapet wall leaks at the west and 
east elevations (R4, tab 142).  
 
11.  Kallidus presented its initial claim, styled as a Request for Equitable 
Adjustment (REA), to the contracting officer under date of November 28, 2016 (R4, 
tab 154).  Although styled as an REA, Kallidus, citing Federal Acquisition Regulation 
(FAR) 33.201, stated it was seeking as a matter of right, the payment of money in a 
sum certain (id. at 2).
1  The claim comprised of nine sub claims totaling $436,510.21 
as set forth below: 
 
a. PCO [Proposed Change Order] 4-Windows        $144,838.00   
b. PCO-5 Windows Time Extension            $95,070.00 
c. PCO-6 Cable Trays            $10,370.00 
 
1 Page citations herein correspond to the PDF document page number.  

4 
 
d. PCO-16 Excavation (Plumbing)  $38,708.00 
e. Additional Concrete Slab Removal  $19,481.21 
f. Demountable Partitions  $28,514.00 
g. Paint Window Trim and Walls  $20,102.00 
h. Unreleased Retainage  $50,000.00 
i. Parapet Wall  $29,427.00 
 
(id. at 5).   
 
12.  Although the claim comprised nine sub claims, Kallidus only discussed six 
of them in any detail.  No explanation or detail was provided for the following sub 
claim items; PCO #5 Windows Time Extension, Unreleased Retainage and Parapet 
Wall (id. at 5-8).  
  
13.  The contracting officer denied the claim in its entirety (R4, tab 155 at 56).  
Despite having received no detail or explanation regarding three of the sub claims, the 
contracting officer demonstrated having an understanding of two of these claim items 
(Windows Time Extension and Parapet Walls) by providing detailed factual 
descriptions thereof in the final decision (id. at 15-21, 37-44).           
 
14.  Kallidus’ president, Mr. Divyang Patel, included a certification of the 
claim, stating:  “I certify that the request is made in good faith, and that the supporting 
data are accurate and complete to the best of my knowledge and belief” (R4, tab 154 
at 17).  By email message dated April 17, 2019, Kallidus amended its certification, 
revising it to state:  “I certify that the claim is made in good faith; that the supporting 
data are accurate and complete to the best of my knowledge and belief; that the 
amount requested accurately reflects the contract adjustment for which the contractor 
believes the Government is liable; and that I am duly authorized to certify the claim on 
behalf of the Contractor” (Bd. corr. dtd. April 17, 2019). 
 
15.  Under date of January 25, 2018, Kallidus submitted its complaint in 
ASBCA 61377.  The complaint, seeking $463,074.21, included a demand for payment 
of $26,564 related to Simpson Ties
2 (compl. ¶ 3).  The complaint included no further 
description or discussion of this sub item of the claim.  The government never 
addressed the Simpson Ties in its answer.   
 
2 This is a later asserted claim, separate from the original nine claim items listed in 
SOF ¶ 11.  See further discussion at SOF ¶¶ 137-39. 

5 
 
 
Windows Claim 
 
16.  The Task Order included nine options, including an option for vinyl-clad 
double-hung wood windows, Series 400, manufactured by Andersen. 3  The Andersen 
window option stated: 
 
Base Bid provides a “Weathershield” primed double-hung 
wood window.  Add option provides “Anderson” vinyl-
clad double-hung wood window, Series 400. 
  
Kallidus proposed a lump sum amount of $136,000 for this option and the Task Order 
was awarded on this basis although the government never exercised the option.  The 
Options specification stated that the base bid was for a Weather Shield” 4 primed wood 
double hung window.  (R4, tab 4 at 16, tab 5 at 5, tab 175 at 2)  However, the 
specification specific to the windows, section 08500, stated the basis for the 
specification was the Andersen Woodwright, 400 Series and also indicated the 
windows were to be vinyl clad (R4, tab 4 at 328).  
 
17.  Specification sections 08500 and 08800 were the specifications pertaining 
to the windows (R4, tab 4 at 326, 352; tr. 3/134).  Section 08500, entitled “Wood 
Windows” included the following provisions: 
 
 1.6 Quality Assurance 
 
  . . . . 
 
F. Design Concept:  . . . .  Window units by other 
manufacturers having equal performance characteristics 
may be considered, provided deviations from indicated 
dimensions and profiles are minor and do not change the 
design concept or intended performance as judged by the 
Architect. 
 
. . . . 
 
 
3 In various places in the documents in the record the company is referred to as 
“Anderson” or “Andersen.”  We will use “Andersen” unless quoting a 
document that spells it “Anderson.” 
4 The company’s name appears in the record as Weather Shield, Weathershield and 
WeatherShield.  We use Weather Shield unless quoting a document that has it 
in another form. 

6 
 
2.1 Manufacturers 
  
A. Manufacturer:  Subject to compliance with 
requirements, provide window units by Andersen Corp., 
Bayport, MN; Crestline, A Division of SNE Enterprises, A 
Nortek Co.; or Weathershield Mfg., Inc. or approved equal. 
 
1. Basis of delivery and specification: 
 
a. Andersen Woodwright, 400 series, double-hung wood 
windows. 
 
2.2 Materials 
 
A.  Vinyl clad, double hung tilting wood windows, . . . . 
 
(R4, tab 4 at 327-28) (emphasis added) 
 
2.3 Glazing 
 
A. General:  Insulating glass units certified through the 
Insulating Glass Certification Council as conforming to the 
requirements of IGCC.  Provide dual sealed units 
consisting of polyisobutylene primary seal and silicone 
secondary seal.  Provide metal spacers with bent or 
soldered corners. 
 
B. High-Performance™ Low-E4™ Glass, Argon Blend 
Filled Insulating Glass Units: 
 
1. Glass: Insulating glass units consisting of an outboard 
lite of bronze tint laminated glass conforming to ASTM 
C1036, Type 1, Class 1, q3 and an inboard lite of clear 
tempered glass conforming to ASTM C1036, Type 1, 
Class 1, q3. 
 
2. Glass: Tempered insulating glass units where required 
shall consist of an outboard and inboard lite of clear 
tempered glass conforming to ASTM C1048, Type 1, 
Class 1, q3, Kind FT. 
 
3. Magnetron sputtering vapor deposition (MSVD) 
TiO2 coating applied to the No. 1 surface. 

7 
 
4. High-Performance™ Low-E4™ Coating:  Magnetron 
sputtering vapor deposition (MSVD) Low-E coating 
applied to the No. 2 surface. 
 
5. Filling:  Fill space between glass lites with argon gas 
blend. 
 
6. Protective removable polyolefin film applied to glass 
surfaces No. 1 and No. 4. 
 
(id. at 329-30). 
 
2.7 Fabrication 
 
 . . . . 
 
C.  Glazing:  Factory glaze with high quality 
glazing sealant
. 
 
(id. at 331). 
 
Section 08800, entitled “Glass and Glazing” 
included the following provisions: 
 
2.2 Materials 
 
 . . . . 
D.  Insulated Glass Units: 
 
1. 1” Unit consists of exterior lite ¼” laminated 
bronze tint, ½” air space, interior lite ¼” tempered. 
 
2.  Windows are factory glazed.  Refer to Section 
08500 – Wood Windows
.  
   
(Id. at 354) 
 
18.  As originally detailed, the windows were to be trimmed with PVC on the 
exterior (R4, tab 3 at 14; tr. 2/95). 
 
19.  Kallidus included no money in its bid price for providing the base windows 
because it believed that when the government rebid the project it was only interested in 
the windows included as option 9 (tr. 1/23-24, 140, 2/83).   
 

8 
 
20.  On November 28, 2011, Kallidus submitted RFI #8 after becoming aware 
that the government would not exercise any of the options (R4, tab 18; tr. 1/24-25).  
Kallidus noted the window specification was based on the option window and 
requested the specification for the Weather Shield wood window (R4, tab 18; 
tr. 2/154-55).  The government responded in early December 2011, stating a Weather 
Shield wood window, Series #610 was to be provided and attached a revised 
Section 08500 (R4, tab 18; tr. 2/90-92).  The COR, Lt. Col Carney, testified that when 
the project was rebid the government’s architect had failed, through oversight, to 
revise the window specification to fully reflect the changes to the windows the 
government wished to make (tr. 3/32, 137-40).  Mr. Donald Hunsicker was accepted 
by the Board as an expert in claims analysis, construction documents and architecture 
on behalf of Kallidus (tr. 2/55-76).  He testified that when the project was rebid the 
Andersen vinyl clad window was changed to a Weather Shield wood window.  In his 
view the change effectively removed the 08500 spec from the contract.  The 
government in response to RFI # 8 issued a new specification 08500 that was based on 
Weather Shield’s 610 series (tr. 2/90-92).  Mr. Robert Blair, appearing on behalf of the 
government, was accepted by the Board as an expert in architecture, federal and 
Massachusetts state construction claim analysis, construction project management, and 
federal military construction contracts (tr. 4/155, 163-77).  He is a government 
employee who had no responsibility for the project during its performance (id. 
at 162-63, 170).  Mr. Blair testified that sections 08500 and 08800 were equally 
applicable to both the Andersen Woodwright and Weather Shield Series 610 windows 
(id. at 182-85, 189; tr. 5/38-42, 49-50).  Mr. Hunsicker in rebuttal testimony explained 
that it made little sense for the government, as part of an effort to reduce costs, to 
change the window requirement from an Andersen Woodwright window to a Weather 
Shield Series 610 window, but not revise the specifications that were developed 
specifically for the Andersen Woodwright window to accommodate the characteristics 
of the Weather Shield Series 610 window (tr. 5/105-06).     
 
21.  In a project meeting on December 19, 2011, Kallidus advised the 
government that it still had questions regarding the windows to be provided and would 
be submitting an additional RFI (R4, tab 182). 
 
22.  Under date of March 6, 2012, Kallidus submitted several proposals for 
wood windows (R4, tab 42 at 10-41).  The proposal for the Weather Shield windows 
was in the amount of $435,445 (id. at 10).
5  The proposals specifically noted that delay 
 
5 The proposals all indicated that grilles were included and varied from a low of 
$57,883.42 for the Lincoln product to a high of $141,731.75 for the Weather 
Shield product (R4, tab 42 at 10, 18, 25, 31).  The proposal from Devon for the 
Weather Shield 610 also indicated that bronze tinting was included.  The 
proposal from Doyle Lumber Company for the Lincoln product broke out the 
cost for the grille work.  The proposal indicated that adding a grille to a window 

9 
 
damages could not be determined at that time, but included a request for a six to 
eight week time extension (id. at 10, 18, 25, 31, 41).  Kallidus stated it had been 
working diligently since it had received the revised specification in December 2011, to 
obtain quotes from suppliers and that it was requesting an equitable adjustment to the 
contract price in the form of a change order for the windows (id. at 40). 
 
23.  Under date of March 7, 2012, the COR recommended the change order 
request be denied (R4, tab 45 at 10-12).  The government adopted the COR’s 
recommendation and denied the request two days later (R4, tab 45 at 1; tr. 1/25). 
 
24.  At a meeting a few days later Kallidus reiterated that it viewed the revised 
window specification as being a change, which it expected to be compensated for (R4, 
tab 185).   
 
25.  Kallidus then requested a quote from its supplier, Devon Lumber (Devon) 
for an unclad wood Weather Shield Series 610 window.  Devon quoted $39,608.90.  
Kallidus offered to provide this window to the government for no additional cost.  
(App. supp. R4, tab 273; tr. 1/25-30, 107-09)  This represented the base window or 
standard make-up produced by Weather Shield (tr. 1/164).  Kallidus requested Devon 
provide a window that would satisfy the requirements of section 01230, para. 3.1, 
Item 9 of the specifications
6.  Kallidus understood this window did not fully comply 
 
was $17.28, except for type H windows, which were $34.56.  The total 
proposed cost of the grilles for all of the windows included in the proposal was 
$4,458.24, calculated as follows:   
    A  $17.28 x 2 x 28 = $967.68 
        B  $17.28 x 2 x 2   = $69.12 
        C  $17.28 x 2 x 10 = $345.60 
        D  $17.28 x 4 x 1   = $69.12 
        E  $17.28 x 2 x 28 = $967.68 
        F  $17.28 x 2 x 43 =  $1,486.08 
        G  $17.28 x 2 x 2  =  $69.12 
        H  $34.56 x 2 x 6  =  $414.72 
        J  $17.28 x 2 x 2   =  $69.12      
           $4,458.24 
(R4, tab 42 at 11-39)   
6 Two government witnesses testified the window proposed with this quote did not 
meet the specifications, but nothing was provided to explain the basis for their 
opinion in this regard (tr. 4/101, 193).  Mr. Hunsicker testified that the window 
met the requirements of the specifications in his opinion (tr. 5/106-08).  The 
Board’s review of the quote indicates it is for a Weather Shield series 610 
window with Low E glass.  The quote does not include air space grilles.  This is 
the only obvious variance from the specifications the Board is able to discern 

10 
 
with section 08500 of the specifications, which required vinyl cladded windows 
amongst other criteria.  Accordingly, it sought to have the government accept this 
window without a formal governmental review of a window submittal.  An additional 
reason for seeking to bypass formal governmental review was to expedite the 
procurement and installation of the windows to mitigate the delays that had been 
experienced (R4, tab 47; tr. 1/26, 46-47, 162-65).    
 
26.  The government rejected this offer in part because the contract required a 
formal submittal for the windows (tr. 3/35, 156-57).  Kallidus then removed the caveat 
that the submittal was for informational purposes only and sought the government’s 
approval (R4, tab 50; tr. 3/156-59).  The government rejected the submittal because the 
windows did not meet the glazing requirements of section 08800 of the specifications, 
specifically the glazing was not 1” the glass was not ¼” laminated and the glass was 
not bronze tinted.  Also, air space grilles were not included and the submittal did not 
address the wind requirements.  (R4, tab 50 at 3; tr. 1/26-27, 34, 2/190-91, 3/35-36, 
157-59) 
 
27.  The government clarified its window requirements in a memo transmitted 
by email dated May 3, 2012.  The government advised that although the glazing 
requirements set forth in the plans and specifications for the windows were as follows: 
 
1. Bronze tint 
 
2. 1” glazing 
 
3. U factor equaling .31 
 
4. SHG (solar heat gain) equaling .20 
 
5. VLT (visible light transmission) .32 
 
the government was willing to accept a Weather Shield Series 610 window with 
following requirements: 
 
1. No bronze tinting 
 
2. ½” glazing 
 
 
from its review of the quote.  We find that without any explanation, the 
testimony that the window did not satisfy the specifications is not helpful or 
reliable, particularly when the government ultimately accepted a Weather 
Shield series 610 window, which did not comply with the specifications.  

11 
 
3. U factor equaling .32 
 
4. SHG equaling .19 
 
5. VLT equaling .49 
 
6. Integral grill has to fit within the airspace 
 
The government stated these alternative requirements were acceptable only if no 
additional cost was involved (R4, tab 56 at 2; tr. 1/27-28, 3/36-38).  The values for U, 
SHG and VLT are not found in the plans and specifications, neither the initial values, 
nor the revised values.   
 
28.  After receiving the revised requirements, Kallidus contacted Weather 
Shield later in the day to share the information it had received from the government 
and to determine whether Weather Shield could meet the requirements.  Weather 
Shield advised that its series 610 and 710 windows would not match the glazing 
required by the government (R4, tab 186; tr. 1/27-28). 
 
29.  Under date of May 8, 2012, Kallidus advised the government that because 
so much time had elapsed trying to get the window requirements defined, there would 
be additional cost, including for additional time for the windows (R4, tab 57). 
 
30.  Also in early May 2012, Kallidus received an additional proposal from 
Devon for a ProShield series 710 Weather Shield window.  The proposal was for 
$57,913.08.  The proposal included interior grilles, but was silent with respect to the 
window glazing (R4, tab 60; tr. 1/28-29).  Kallidus incorporated this proposal into a 
change order request, PCO #4, and submitted it to the government (id.)  Kallidus’ 
proposal included a credit in the amount of $39,608.90 quoted by Devon previously 
for the unclad Weather Shield Series 610 window (id.).  The proposal also included 
costs totaling $28,127.76 for 60 days of delay (R4, tab 60 at 4).  The proposal was 
contingent on its acceptance no later than May 21, 2012, and approval of shop 
drawings no later than June 8, 2012, to facilitate placing the window order by June 9, 
2012 (id. at 2).  The government rejected the proposal the next day.  The government 
requested that Kallidus separate the delay claim from the additional costs claim and to 
include a time impact analysis to support the delay part of the claim (R4, tab 62 at 4).  
Kallidus responded, stating it did not understand why separate claims for (1) additional 
cost and (2) delay were required and set forth a narrative explanation of the delays that 
had been experienced to date.  Kallidus noted that as things stood, the government was 
not requesting a standard window manufactured by Weather Shield and that there was 
no specification from which Kallidus could order windows (id. at 3).  In response, the 
government reiterated that two issues were involved and separate change order 
requests were required (id. at 2).  Kallidus responded that it viewed the issue 

12 
 
(additional cost and delay) as being a single intertwined issue that had been treated as 
such in the past when working on Air National Guard projects (id. at 1-2).  The 
contracting officer nonetheless directed Kallidus to separate its request into two 
separate requests and stated the change order request would not be considered unless 
Kallidus complied (id. at 1). 
 
31.  Simultaneously, the COR contacted Devon directly with questions 
regarding the specifications relating to the windows Kallidus had received quotes for 
(R4, tab 191).  The COR asked whether Weather Shield could provide windows 
meeting the following specifications:   
 
1. ½” glazing 
 
2. U factor equaling at least .32 
 
3. SHG equaling at least .19 
 
4. VLT equaling at least .49   
 
5. the integral grill fits within the airspace. 
 
(id.)  The values specified for U, SHG and VLT by the COR do not appear in the 
specifications, neither the original nor the revised specifications (R4 tab 4 at 326-32, 
352-57, tab 73 at 4-9). 
 
32.  In response the COR was advised that Weather Shield had indicated the 
following values for the two lines of windows: 
 
ProShield DH-5/8” insl Thickness (Zo-e Shield 5 
w/argon gas) 
.30 U-Value 
.18SHGC 
.41VLT 
w/grilles in the airspace 
Weather Shield 610 DH-5/8” insl thickness (Zo-e 
Shield 5 w/argon gas) 
.28 U-Value 
.17SHGC 
.40 VLT 
w/grilles in the airspace 
 
(R4, tab 191) 
 

13 
 
33.  No evidence was received regarding these values.  We take judicial notice, 
relying on the U.S. Department of Energy’s Guide to Energy Efficient Windows 
(2010) that the beneficial qualities represented by the U and SHGC values increase as 
the number decreases 
(https://www.energy.gov/sites/prod/files/guide_to_energy_efficient_windows.pdf).
7  
Accordingly, the U values and SHGC values for the referenced ProShield and 
Weather Shield windows exceeded the values set forth in the COR’s message to 
Weather Shield.  We take judicial notice from a commercial website that the quality 
represented by the VLT value, visibility, increases as the number increases.  
B
RENNAN, https://brennancorp.com/blog/window-visible-transmittance-ratings-
explained/ (last visited December 1 7, 2025).  Accordingly, neither the ProShield nor 
Weather Shield windows referenced met the VLT value included in the COR’s 
message.  Nor did they meet the alternate 1/2”, or the original 1”, glazing 
requirements. 
             
34.  Kallidus agreed to submit separate proposals in response to the 
government’s directive to do so and further advised the government that the alternate 
requirements set forth in the government’s May 3, 2012, email message were also out 
of scope for a standard Weather Shield window product (R4, tab 193).  Kallidus 
submitted separate proposals for the additional costs for the non-standard Weather 
Shield window product the government required, revised PCO #4 and the additional 
time it was seeking, PCO #5 (R4, tabs 64-65).  With PCO #5, Kallidus sought a time 
extension from August 13, 2012 to October 8, 2012 (R4, tab 65).  The change request 
stated that Kallidus had been delayed several months while trying to get the window 
specifications clarified.  Kallidus sought $46,237 for two months of additional field 
office overhead and was contingent on Kallidus being able to order the windows no 
later than June 9, 2012 (id. at 3).   
 
35.  The contracting officer responded to the proposals asking why Kallidus 
was proposing a vinyl clad window, when the government had specified a wood 
window (R4, tab 66 at 2-3).  Kallidus reiterated that there was no specification in the 
contract for a wood window, that although the contract did not require design build 
services it had been working to provide the government with the windows it 
understood the government wanted from its discussion with the COR because there 
was no standard Weather Shield window that met the requirements the government 
had stated it wanted (id. at 1-2). 
 
7 The Board may take judicial notice of facts that are not subject to reasonable dispute 
when they are generally known or capable of accurate and ready determination 
by resort to sources whose accuracy cannot be reasonably disputed.  This 
includes factual information available on internet websites.  Juniper Networks, 
Inc. v. Shipley, 394 Fed. Appx. 713 (Fed. Cir. 2010).  See also Kellog, Brown 
& Root Services, Inc., ASBCA No. 56358, 11-1 BCA ¶34,614.   

14 
 
 
36.  The government asked RAI, its project designer, to investigate Kallidus’ 
assertions.  RAI advised that Weather Shield representatives had confirmed Weather 
Shield series 610 windows would satisfy the project’s window requirements and had 
been the window mentioned in the government’s response to Kallidus’ RFI #8.  RAI’s 
response, dated May 21, 2012, included sketches revising the details set forth on 
drawing A.9 and the following statement regarding the glazing, which conflicts with 
the glazing requirements set forth in section 08800: 
 
Weathershield confirmed they are able to produce 
windows with ¾” insulated glazing comprised of an 
exterior lite of 1/8” clear annealed glass, .030 lamination 
sheet and 1/8” glass, ¼” air space filled with argon glass, 
and ¼” interior clear glass lite. 
 
(R4, tab 67 at 2-5)  The sketches also changed the exterior PVC casing to wood casing 
(id.; tr. 2/95, 3/30).  The government’s COR, upon receipt of this information and a 
site visit on May 22, 2012, to confirm the windows would fit in the existing openings, 
advised Kallidus that it had confirmed that the Weather Shield series 610 windows 
were the intended base bid windows.  The COR also advised that he would be 
receiving additional information to confirm that the contract’s glazing requirements 
could be met.  He emphasized that the windows, the glass and the casing were 
standard Weather Shield products (R4, tab 67 at 1). 
 
37.  RAI followed up with a request to Weather Shield that it confirm its letter 
to the COR was correct (R4, tab 68 at 1-2, 4).  Weather Shield advised RAI it should 
revise the glazing comments slightly as follows: 
 
Weather Shield confirmed it is able to produce windows 
with 3/4” insulated glazing comprised of: 1/8” Low E 366 
outside lite with EasyCare coating - 3/8" airspace with 
argon gas - 1/4” laminated (1/8” clear / .030” PVB clear 
interlayer / 1/8” clear) inside lite (typical).  For those units 
noted to have opaque glazing the glass make-up will 
remain the same as noted above, however the clear PVB 
interlayer will change to a white PVB interlayer.   
 
For units requiring spandrel glass, the make-up will be:  
3/4” insulated glass with 1/4” heat-strengthened spandrel 
(choice of colors, black quoted) outside lite - 3/8” airspace 
(no argon gas) - 1/8” clear tempered inside lite.   
 

15 
 
(id. at 1).  The Weather Shield representative also advised that an updated quote to 
reflect glass as described would be prepared (id.).  The COR testified that these 
glazing requirements represented changes to the contract’s specifications, specifically 
that the 1” glazing was changed to ¾” and the bronze tint requirement was eliminated 
(tr. 3/41-42). 
 
38.  Under date of May 23, 2012, the COR issued a Notice to Comply (NTC), 
directing Kallidus to submit a formal window submittal based on the Weather Shield 
610 series windows.  In his letter the COR acknowledged the contract had failed to 
include specifications for the Weather Shield primed double hung window (R4, 
tab 69 at 2).  By email of the same date Kallidus advised the COR that the buyout of 
the windows could not be made because the sketches provided by RAI were not 
consistent with the existing conditions of the masonry openings and again requested 
that the government provide Kallidus with a specification for the windows (R4, tab 
196).   
 
39.  The next day Kallidus’ vendor Devon advised it that the requirements had 
been changed to require Zo-e Shield 6 glass, which it described as being high 
performance glass.
8  Devon submitted a revised quote for this revision.  When 
Kallidus asked why Devon was submitting the quote and what specification was being 
relied upon, Devon advised that My-Ron Hatchett had spoken with Weather Shield to 
make this change, which had apparently told Devon.  Mr. Hatchett was an architect 
with RAI, the project manager for its architect engineer contract with the government 
(app. supp. R4, tab 295; tr. 1/34, 3/30). 
 
40.  Kallidus responded to the NTC under date of May 24, 2012.  Kallidus 
stated that it had never asserted that the Series 610 windows could not be 
manufactured for the size of the openings depicted on drawing A.9.  Instead Kallidus 
had pointed out that the trim provided by Weather Shield with the Series 610 windows 
was not suitable for the existing openings, that it had proposed a solution, which 
appeared to have been adopted in the revised sketches prepared by RAI.  Kallidus 
stated that it appeared that the specifications for the windows were evolving, that it 
was unable to understand the exact requirements and again requested that the 
government provide a specification for the windows (R4, tab 70 at 3-4).  In response to 
Kallidus’ request for the specifications for the windows, the government’s project 
manager, Mr. Barry Johnson, resent the response to RFI#8, its window clarification 
 
8 Previously the government had indicated it wanted Zo-e Shield 5 glass (see SOF 
¶¶ 30-32).  The record includes evidence that the change from Zo-e Shield 5 to 
Zo-e Shield 6 had an effect on the U, SHGC and VLT values stated previously 
with respect to the Zo-e Shield 5 glass.  The U and SHGC values decreased 
slightly in quality by .01, whereas the VLT quality increased by .09 (cf. SOF 
¶¶ 31, 43).  

16 
 
memorandum dated May 2, 2012, the NTC, and “the window details for the 
appropriate locations” (R4, tab 197 at 6; tr. 4/124).  Mr. Johnson’s response prompted 
an email from Kallidus’ project manager, Mr. Joy to the contracting officer, in which 
Mr. Joy advised that the various documents referred to by Mr. Johnson included 
contradictions and variances to the base bid windows specified (R4, tab 197 at 5).  The 
contracting officer did not respond initially, so Kallidus’ operations manager sent 
another request for direction (id. at 4).  This resulted in a response from the contracting 
officer to provide windows in accordance with what had been provided previously.  
The contracting officer indicated that she did not understand why direction was needed 
and stated that Kallidus was not at risk (id. at 3-4).  The contracting officer’s email 
was answered by yet another request from Kallidus for a proper set of drawings and 
specifications.  Kallidus also provided a summary of the previous communications and 
efforts to resolve the issue (id. at 1-3). 
 
41.  By email dated May 31, 2012, Kallidus received a new proposal from 
Devon reflecting changes to the window requirements it had discussed with Weather 
Shield.  The proposal did not include a price, prompting Kallidus to ask how it differed 
from the proposal Kallidus had received from Devon over the previous weekend.  
Devon advised the proposal reflected changes discussed between Weather Shield and 
RAI.  These changes included changes made to the airspace grilles, the factory applied 
finish and the addition of installation clips
9, required by the change to the poly finish 
requested by Mr. Hatchett (R4, tab 198 at 2, tab199 at 9).  In an email dated June 6, 
2012, Weather Shield confirmed it had had several conversations with RAI’s 
Mr. Hatchett discussing changes to the window requirements between May 29 and 
May 30, 2012 (R4, tab 198 at 1).  In the context of all the back and forth 
communications between the various actors and RAI’s role as the government’s 
designer of record, RAI’s communications with Weather Shield should be understood 
as being of a piece with the COR’s earlier dealings with Devon on the same subject 
matter (see SOF ¶¶ 32-33).  Thus, we find that as of May 30, 2012, the government 
had not completed revising its requirements for the windows
10.  
 
42.  Under date of June 7, 2012, Kallidus submitted revised PCOs #4 and #5.  
Kallidus sought a time extension of 105 days, additional delay related costs of $95,070 
and additional costs of $144,838 for the windows themselves (R4, tabs 77, 199 at 1-8; 
tr. 1/35).  
 
 
9 The evidence received into the record regarding installation clips was that they made 
installation more difficult than nailing (tr. 2/166). 
10 See SOF ¶¶ 43-49, indicating it was not until-mid July, after Kallidus had presented 
a window submittal that did not comply with the plans and specifications, did it 
order the windows in response to the government’s cure notice.   

17 
 
43.  On June 13, 2012, Kallidus transmitted submittal 81R for Weather Shield 
series 610 windows (R4, tab 79).  The notes on the shop drawings listed several 
variations from the requirements set forth in the original specifications and drawings 
and subsequent iterations.  These included installation clips instead of nailing, flat 
casing in lieu of the brick mould indicated on the sketches RAI had provided in late 
May, deletion of the specified tinting and tempered glass, ¾” insulated glass instead of 
the ½” specified and changes to the U, SHGC and VLT values that accompanied the 
change to the Zo-e Shield 6 amongst others (id. at 5).  The government approved the 
submittal two days later (R4, tab 81).   
 
44.  Upon receipt of the approved submittal, Kallidus advised it would order the 
windows the next day and provide an update on the windows’ delivery date, when it 
had that information (R4, tab 80).  On June 27, 2012, Devon advised Kallidus that it 
was no longer interested in being the vendor for the windows.  Devon cited several 
reasons for its decision including; revisions that continued to be made after the order 
had been placed, Kallidus’ failure to have submitted a credit application, and the 
government’s stated dissatisfaction with the price and its attempts to negotiate a better 
price with other vendors of Weather Shield windows (R4, tab 89; tr. 1/35-36).   
 
45.  Kallidus contacted Weather Shield and established an account so that it was 
able to buy the windows directly from Weather Shield.  Weather Shield advised that 
the COR had been in contact with Weather Shield’s architectural department asking 
questions relating to the project.  Weather Shield advised that it would honor the price, 
$106,439.88, quoted by Devon to Kallidus, and that the delivery time was 
approximately five weeks for the base units and seven weeks for the units with 
spandrel glass.  The windows were offered pursuant to the approved shop drawings 
and not the plans and specifications.  (R4, tab 90; app. supp. R4, tab 296; tr. 1/36)  
Kallidus wrote to the contracting officer to complain about the government’s 
interference with its relationship with its vendor and to confirm that the government 
would accept the windows per the approved shop drawings in lieu of the plans and 
specifications (R4, tab 91). 
 
46.  The contracting officer responded under date of July 10, 2012.  The 
contracting officer denied the government had interfered with Kallidus’ relationship 
with Devon and acknowledged that the contract had not included a specification for 
the Weather Shield windows
11.  The contracting officer also denied PCO #4, assigning 
responsibility for the costs to Kallidus.  The contracting officer’s statements 
misapprehend the basis for the request, asserting that the basis for PCO #4 was a 
Kallidus contention it was not required to provide windows because there was no 
specification for the Weather Shield windows included in the contract.  The 
 
11 The COR also testified that that when the project was rebid specification 
section 08500 no longer represented the base bid window (tr. 2/89). 

18 
 
contracting officer also did not address Weather Shield’s statement that its offer was 
per the approved shop drawings and not per the plans and specifications, beyond 
advising Kallidus that the windows would have to conform to the plans and 
specifications (R4, tab 93).  A week later the contracting officer denied PCO #5.  The 
contracting officer stated that Kallidus had failed to identify any government caused 
delay.  The contracting officer asserted that Kallidus had not worked on the project for 
79 workdays between October 24, 2011, and February 6, 2012.
12  The contracting 
officer indicated that the government was willing to provide a no cost change order 
extending the performance period to October 15, 2012 (R4, tab 94).   
 
47.  Also on July 17, 2012, Weather Shield sent Kallidus a letter reiterating that 
it would provide the windows pursuant to the approved shop drawings and not in 
accordance with the plans and specifications.  Weather Shield’s letter included an 
itemized list setting forth some of the differences between the approved shop drawings 
and the requirements set forth in the plans and specifications.  Weather Shield’s letter 
concluded with the following statement: 
 
This clearly shows some of the many discrepancies 
between the plans and specifications and the approved 
shop drawings.  Weather Shield’s acceptance will be based 
on the signed, approved shop drawings dated June 21, 
2012 and order numbers 550779431 and 550779432, while 
referencing /acknowledging the plans and specifications. 
 
(R4, tab 95 at 17-18; tr. 5/113-15) 
48.  Under date of July 19, 2012, Kallidus responded to the government’s 
rejection of PCO #4 and #5, noting that its claim was for the difference in cost 
between a primed wood double-hung Weather Shield window that the Options section 
of the specifications stated was the base bid window and the cost of the series 
610 window as ultimately specified by the government, together with the costs 
resulting from the delays associated with defining the government’s requirements (R4, 
tab 95 at 19-21).  The same day, Kallidus executed a purchase order totaling 
$106,439.88 to Weather Shield for the windows (R4, tab 101 at 9).  Weather Shield 
 
12 This calculation fails to include the five federal holidays that occur during this 
period.  We find there were 74 workdays between October 24, 2011 and 
February 6, 2012, when the beginning and end dates are included.  The Daily 
Construction Quality Control Reports establish the contracting officer’s 
assertion was mistaken in more ways than the number of working days in the 
period as they indicate that Kallidus was working on the project during this 
period (R4, tab 325).  

19 
 
acknowledged the order and advised the order had been put into production the 
afternoon of the next day (id. at 10). 
 
49.  The government issued a cure notice to Kallidus under date of July 20, 
2012, citing its failure to have ordered the windows.  The government stated that 
Kallidus’ failure to have timely ordered and install the windows had caused delays, 
which the government considered to be solely the fault of Kallidus (R4, tab 98).  
Kallidus responded to the cure notice two days later, advising the government the 
windows had been ordered and that the estimated delivery date was September 10, 
2012.  Kallidus’ response included a timeline setting forth the efforts Kallidus had 
made to order the windows and the problems that had occurred.  Kallidus attributed 
these problems to the government (R4, tab 101 at 3-4).   
 
50.  Under date of November 28, 2016, Kallidus submitted claims, in the 
amount of $144,838 in additional costs for the windows themselves and $95,070 for 
additional costs associated with the delays it had experienced (R4, tab 154 at 5)
13.  The 
contracting officer denied these claims under date of July 24, 2017 (R4, 
tab 155).  Kallidus timely appealed the contracting officer’s final decision (Bd. corr. 
dtd. October 23, 2017). 
 
Windows Time Extension 
 
51.  The baseline schedule was prepared by Kallidus’ project manager, 
Mr. Philip Joy and the project engineer, Mr. Jeff Chamberlain (tr. 1/175-76).  After 
several rejections, the baseline schedule was accepted by the government in early 
February 2012 (ex. G-1; tr. 2/45-46).  As originally contemplated by Kallidus and 
indicated on the baseline schedule, the procurement and installation of the windows 
was not on the critical path to the completion of the contract’s work (tr. 1/150-51, 159; 
ex. G-1).
14  The approved baseline schedule included 10 days, from October 25, 2011 
 
13 Despite being styled as a request for equitable adjustment (REA), there is no issue 
regarding whether this is a claim.  Kallidus cited the definition of a claim from 
FAR 2.101 (mistakenly as FAR 33.202) in the introduction, clearly demanded a 
sum certain and certified its demand for payment (R4, tab 154).  The 
contracting officer treated Kallidus’ demands as a claim, referred to her 
decision as a contracting officer’s final decision made pursuant to FAR 33.211, 
denied the claims entirely and included the appeal rights language mandated by 
FAR 33.211(a)(4)(v) (R4, tab 155).   
14 Critical Path Method (CPM) scheduling was concisely described by the Court of 
Claims in Haney v. United States, 230 Ct. Cl. 148, 167-168, 676 F. 2d. 584 
(1982).  The “critical path” is the items of work in a schedule that must be 
performed in accordance with the schedule otherwise the entire project will be 

20 
 
to November 7, 2011, for preparing the window submittal and 31 days from January 2, 
2012, to February 13, 2012, for their installation.  The original project completion date 
was August 13, 2012 (ex. G-1).     
 
52.  Kallidus retained Mr. Eric Lowther to perform a time impact analysis in 
May of 2012, relating to the delays that had been experienced and were projected to 
be experienced with respect to the windows (tr. 2 at 27-29, 31; R4, tab 199 at 3-7).  
Mr. Lowther was offered and accepted by the Board as an expert in scheduling and 
delay analysis.  The government posed no objection (tr. 2/21-31).   
 
53.  A time impact analysis (TIA) is performed to determine the impact that 
unanticipated events may have on the performance of the work.  The starting point of 
the analysis is the latest approved schedule.  The unanticipated events are sequenced 
and then tied into the existing schedule so that the impact of the unanticipated events 
can be understood.  It is important to use the correct logic and durations and to 
correctly tie the new activities into the existing activities so that the schedule 
accurately models what would happen (tr. 2/19-21, 25, 32-37).  To ensure the 
reliability of the model, the scheduler performing the analysis studies the existing 
schedule’s network, reviews the logic to make sure there are adequate predecessor and 
successor activities and that their durations are appropriate (id. at 21-22).  At the time 
Mr. Lowther was engaged by Kallidus there was only one approved schedule for the 
project, the baseline schedule, which is the schedule he used to perform his analysis 
(id. at 32-33).  He began by reviewing the schedule to determine whether it was 
appropriate to use for the analysis, which he determined it was after making some 
minor adjustments.  These adjustments did not change the critical path or the projected 
completion date.  He then prepared the fragmented activities that would represent the 
change event, the delays to the windows, into the schedule (id. at 33-34).  His time 
impact analysis, submitted June 7, 2012, showed 105 days of anticipated delay (id. 
at 33-34; R4, tab 199).  The record includes evidence of the adjustments Mr. Lowther 
made to the approved baseline schedule.  He adjusted the activities by providing more 
detail of what was included in the activity without changing the overall duration as 
well as tying predecessor activities into successors where he thought it was necessary 
and appropriate to do so.  His analysis was performed before the window issue was 
fully resolved so he had to assume resolution of the window issue by a certain date to 
arrive at the conclusion he did that the project’s completion could be anticipated to be 
delayed by 105 days.  Prolongation of the resolution of the window issue beyond his 
assumed resolution date could increase the anticipated delay.  His analysis was 
prospective, not retrospective (ex. A-2; tr. 2/34-39, 47-48).  
 
 
delayed.  See also Construction Delay Claims, 2nd Ed., Barry B. Bramble and 
Michael T. Callahan, Wiley Law Publications §11.2 (1992). 

21 
 
54.  Mr. Lowther’s TIA, made before the windows were approved and ordered, 
presumed the windows would be delivered by August 8, 2012, and the installation of 
the windows would be completed by September 24, 2012 (ex. A-3, Activities 10 and 
79; tr. 2/40-42; R4, tab 199 at 3-4).  These projections proved to be fairly accurate (See 
SOF ¶ 56).  The analysis did not include a revised completion date, only a total impact 
of 105 calendar days. 
 
55.  The government offered no scheduling expert or schedule analysis to 
counter the evidence presented by Mr. Lowther.  The government acknowledged that 
delays occurred due to the windows, but placed the blame for the delay on Kallidus  
(See SOF ¶ 46).  Despite the testimony and other evidence in the record potentially 
supporting a delay of 105 days, Kallidus is seeking only to recover costs stemming 
from 90 days of delay (R4, tab 199 at 20).  We find Kallidus is seeking a 90 day time 
extension.   
 
56.  The windows began to be delivered in early August 2012 (tr. 3/43).  The 
daily records indicate windows were delivered as late as August 23, 2012 (R4, tab 325, 
Day 201 at 3).  Installation began immediately thereafter.  Photographs show the 
windows being installed on August 24, 2012 (R4, tab 330).  The last record 
mentioning window installation indicates the installation at Unit 500 was completed 
September 13, 2012 (R4, tab 325, day 215).  We find Kallidus completed the 
installation of the windows for the project on September 13, 2012.   
 
Cable Tray Claim 
 
57.  Division 16, entitled “Electrical” included specifications relating to the 
cable tray.  Section 16139, entitled “Flextray Wire Basket Support Systems” pertained 
to the installation of the cable tray.  The specification included the following 
provisions: 
 
1.3 Drawings 
 
A. The drawings, which constitute a part of these 
specifications, indicate the general route of the wire basket 
support systems. Data presented on these drawings is as 
accurate as preliminary surveys and planning can 
determine until final equipment selection is made.  
Accuracy is not guaranteed and field verification of all 
dimensions, routing, etc., is required. 
 
A. Specifications and drawings are for assistance and 
guidance, but exact routing, locations, distances and levels 
will be governed by actual field conditions.  Contractor is 

22 
 
directed to make field surveys as part of his work prior to 
submitting system layout drawings. 
 
(R4, tab 4 at 5, 651) 
 
58.  A cable tray is an open basket in which wires are laid.  A raceway is a rigid 
steel or plastic covering that is attached to a wall or ceiling, which conceals wires 
(tr. 4/130).  Specification Section 16741 contemplates that electrical and other wiring 
above drop ceilings may be hung using systems other than cable trays (R4, tab 4 
at 723; tr. 1/58).   
   
59.  Additionally, Section 01230 of the specifications entitled “Options,” Part 
3.1.K. Option No. 8, indicates the base bid provides for raceway systems as described 
in the contract drawings, including cable trays (R4, tab 3 at 16, tab 4 at 767; tr. 1/52). 
   
60.  The electrical drawings do not show any cable trays (R4, tab 3, at 46-53; 
tr. 1/52, 4/129).  However, Drawings E.1, E.2 and E.3 include notes referring to a 
cable tray, see Electrical Coded Notes 2-4, 16 (R4, tab 3 at 46-48, tab 340 at 4; tr. 
4/130-31).  The cable tray, per these notes, is indicated on Drawings E. 2 and E.3 in 
several locations on the first floor of all 5 of the units comprising Building 102 (R4, 
tab 3 at 47-48, tab 340 at 5-6). 
 
61.  Cable trays are depicted on two of the mechanical drawings by a 
cross-hatched symbol.  Although not identified as such in a legend of symbols on the 
drawings, the symbol used is a standard symbol used to denote a cable tray in the 
construction industry.  Drawing H.1 shows a cable tray on the first floor in Units 100 
and 200.  Drawing H.3 shows a cable tray on the first floor of Units 400 and 500 (R4, 
tab 3 at 37, tab 39, tab 340 at 2-3, tab 350; tr. 3/53, 4/127-29, 136-37, 5/13, 15, 54-55). 
 
62.  Under date of May 25, 2012, Kallidus submitted RFI No. 54.  Kallidus 
noted that the electrical drawings did not depict cable trays and asked the government 
to advise where and the quantity of cable trays were to be installed, if the 
government’s intent was to require cable trays (R4, tab 84; tr. 1/53, 55).  In response 
the government advised Kallidus to install the cable tray as depicted on Drawing H.1 
and to duplicate that layout for Units 400 and 500 (R4, tab 84; tr. 1/55-56). 
 
63.  Under date of June 22, 2012, Kallidus’ electrical subcontractor requested 
$8,678 for installing cable trays in Units 100, 200, 400 and 500 in accordance with the 
government’s response to RFI #54 (R4, tab 87 at 5).  Kallidus added its costs and 
profit to its subcontractor’s request and submitted PCO #6, totaling $10,370.00 for 
furnishing and installing the cable tray as instructed by the government’s response to 
RFI #54 (R4, tab 87 at 1-4; tr. 1/59). 
 

23 
 
64.  By email dated July 26, 2012, the government forwarded its response to 
PCO #6, rejecting Kallidus’ request (R4, tab 102 at 3-4, tab 103; tr. 1/59).     
 
PCO #16 Excavation (Plumbing) 
 
65.  Drawing S.1 depicts areas to be saw cut in Unit 400 to enable the 
installation of new plumbing lines under a pre-existing concrete slab.  Within the area 
to be saw cut there are lines depicting plumbing lines.  The lines are not identified as 
being sanitary or supply lines.  The drawing includes a note that states with respect to 
Unit 400, the work is to be coordinated with the plumbing contractor and to refer to 
the plumbing drawings for work that may not be shown on Drawing S.1 (R4, tab 161; 
tr. 1/64).  Drawing P.1U entitled “First Floor Underslab Plumbing Plan” only depicts 
Units 100, 200 and 300.  Nothing is depicted for Units 400 and 500 (R4, tab 3 at 30).  
Unit 400 is a single story unit (id. at 10).  Drawing P.3 includes additional information 
regarding both supply and sanitary lines in Unit 400.  Most significantly, it includes 
three notes indicating waste plumbing lines extending down through the slab.  
Drawing P.5 includes an isometric layout of both types of lines in Unit 400.  Drawing 
P.6 includes legends for the various types of plumbing equipment and lines depicted 
on P.3 and P.5 (R4, tab 3 at 33, 35-36, tab 341 at 3, 5-6; tr. 3/56-59).   
 
66.  Kallidus submitted RFI #13 in December 2011, because, in its view, 
drawing P.1U was the only drawing that showed new underground plumbing and it 
included no information regarding Unit 400 (tr. 1/60-62; R4, tab 21, tab 160).  
 
67.  The government responded to RFI #13 with sketch SK-3, which showed a 
different layout for saw cutting the existing slab in Unit 400 and provided details for 
the plumbing to be installed (R4, tab 21 at 2; tr. 1/62).  The COR, Lt. Col. Carney, 
testified the saw cutting layout depicted in the sketch could be viewed as a change, but 
opined that although more concrete was required to be removed it should have been 
less labor intensive
15 (tr. 3/58-60,4/23-26; R4, tab 341 at 7).  Mr. Hunsicker’s analysis 
states the saw cutting was increased by 15% and that slab removal and trench 
excavation increased approximately 13% (R4, tab 274 at 36; tr. 2/167).  The plumbing 
layout in the sketch was consistent with the isometric layout depicted for Unit 400 in 
the plumbing and other drawings (tr. 2/168).  
 
68.  In early January 2012, Kallidus sought confirmation via RFI #21 that the 
saw cutting of the slab was to be in accordance with SK-3 rather than what was shown 
on contract drawing S.1.  The government confirmed the cutting was to be done in 
accordance with SK-3 (R4, tab 28; tr. 4/31-33). 
 
15 In its brief the government states it does not dispute that additional saw cutting was 
required, but argues the cost of the overall performance of the work was less 
due to simplified cutting (gov’t br. at 89).  

24 
 
 
69.  Kallidus submitted a change order request (PCO #1) for the plumbing work 
shown on SK-3 in mid-January 2012, in the amount of $8,130.01 (R4, tab 34 at 3-10).  
Kallidus relied on its subcontractor’s assertion that SK-3 included additional plumbing 
work.  It had not prepared any quantity take-offs itself, nor did the subcontractor 
submit an analysis showing how SK-3 may have changed materials quantities or the 
piping layout from that included in the subcontractor’s bid price provided to Kallidus  
(tr. 1/140-44, 4/21-22).  The government rejected the request.  The basis for the 
rejection was that SK-3 had been issued as a clarification with no intent to change the 
scope of work, cost or time involved in performing the work.  The government 
asserted that the saw cutting was shown on Drawing S.1 and the plumbing was 
depicted on Drawings P.3, P.4 and P.5 (R4, tab 34 at 1-2). 
 
70.  After the work had been completed, Kallidus bundled the costs claimed in 
PCO #1 with costs sought by its excavation contractor, Ken Bousquet, for four change 
orders into PCO #16.  Two of the change orders included excavation or saw cutting for 
plumbing work in Units 200 and 400 (R4, tab 252 at 31-33).  PCO #16 totaled $38,708 
(id. at 31).  The contracting officer rejected this sub claim item entirely.  The basis for 
the denial was that the underslab plumbing for Unit 400 was shown in the contract 
drawings.  The final decision does not indicate whether the contracting officer 
considered the possibility that additional saw cutting was involved (R4, tab 155 
at 36-37, 53-54).   
 
Additional Concrete Removal 
 
71.  The contract drawings include S.1, depicting the foundation plans for Units 
100, 200, 400 and 500.  The drawing includes a detail which references Section 24, 
applicable to Units 400 and 200.  Section 24, in turn, is detailed on drawing S.10 (R4, 
tab 3 at 18, 27; tr. 1/65-66).  The section, as shown below, requires saw cutting and 
removal of one foot of the existing slab in Units 200 and 400 adjacent to the exterior 
walls and the installation of two #5 reinforcing bars “continuous” parallel to the wall 
with #4 reinforcing bars at right angles to the #5 bars at 18 inches O.C. in a new ten 
inch deep footing.  The installation of 18-gauge metal studs attached to a sill plate 
anchored to the new footing, with a minimum of two anchors per section, anchors 
placed at 12” from each end with intermediate anchors six feet on center was required: 
  

25 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
(R4, tab 3 at 27 [sic]
16)   
  
 
16 The section detail appears to have been cut and pasted from elsewhere, when the 
drawing was created and in that process the right-hand margin of the text was 
slightly cut off. 

26 
 
 
Both Units 400 and 200 have exterior walls constructed of concrete masonry 
blocks (CMU) with windows interspersed along the walls as shown for Unit 400 from 
drawing S.1 below:  
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
(R4, tab 3 at 18)  In this drawing the wall appears as the part of the structure where the 
Section 24 detail symbol is placed.  The white rectangle depicts the CMU.  The thinner 
darker rectangle on the inside surface of the wall corresponds to the studs and sill plate 
Kallidus was to install.  The wall segments are interrupted by the windows, which 
have walls with studs below and above them, but which are not depicted on the 
drawing.  The dimensions set forth in the Section 24 detail, i.e. anchors on six-foot 
centers, require that sill plate anchors be installed below at least some of the windows 
(tr. 4/42-43, 104-09).  Without the footing being continuous below the windows, not 
all of the sill plate anchors would be embedded into a reinforced footing as required by 
the Section 24 detail (tr. 3/65, 5/87-90).   
 
72.  Kallidus understood that the slab cutting and rebar placement was to occur 
only in the parts of the wall without windows (tr. 1/66; R4, tab 22). 
Kallidus submitted RFI #16 to confirm its understanding but was advised by the 
government the reinforced footing was to be continuous for the entire length of the 
wall, including the sections with windows and thus the slab cutting was to be 
continuous as well (R4, tab 22).  The government’s response did not end the parties’ 
discussion.  At a meeting in mid-December 2011, the government agreed to provide 
additional information because Kallidus continued to question what was required on 
the drawings (R4, tab 182; tr. 1/67-68). 
 

27 
 
73.  Under date of December 29, 2011, the government revised its response to 
RFI #16.  Referring to drawings A.1, A.2 and A.7, the government reiterated that the 
drawings indicated the exterior walls in Units 200 and 400 required studs and drywall 
for the entire length of the walls, including the sections with windows and that the 
reinforcing bar in the new footing Kallidus was to install was continuous for the entire 
length of the wall.  Implicit in these statements was the requirement that the existing 
concrete slab needed to be cut for the entire length of the wall (R4, tab 3 at 6, 7, 12 
tab 25 at 2; tr. 1/68-69). In the interim between the meeting in mid-December and the 
government’s revised response to RFI #16, Kallidus had started and finished cutting 
the slab in Unit 200 (R4, tab 325 at day 30).  
 
74.  Kallidus revised and resubmitted RFI #16, again seeking to obtain the 
government’s agreement that the footing did not continue below the windows.  The 
government instead confirmed that the footing did continue below the windows (R4, 
tab 30 at 2; tr. 1/69-70). 
 
75.  Kallidus’ issued a change order to its subcontractor, Pask, LLC (Pask) in 
the amount of $12,400 for slab cutting in Units 200 and 400 (app. supp. R4, tab 252 
at 45).  Pask then submitted a proposal in the amount of $12,249.14 (id. at 44).  
Kallidus incorporated Pask’s proposal into PCO #2.  Along with additional costs and 
markup for profit, Kallidus sought $19,418.21 in total (R4, tab 36 at 4; tr. 1/70).  The 
COR recommended Kallidus’ request be denied (R4, tab 43 at 1; tr. 4/39-41).  
 
76.  Kallidus submitted PCO #2 as a claim, styled as a REA without revision 
(R4, tab 154 at 5-6).  The contracting officer denied the claim (R4, tab 155 at 53, 56). 
 
77.  The record includes no evidence establishing that Kallidus relied on its 
interpretation of the drawings regarding the construction of the footings when 
preparing its bid.  Nor is there any evidence regarding the level of effort and the cost 
associated therewith for the slab cutting included in the contract price by Kallidus and 
its subcontractor for Units 200 and 400.   
 
Demountable Partitions 
 
78.  The contract incorporated by reference FAR clause 52.236-21, 
Specifications and Drawings for Construction (FEB 1997) by reference, which stated 
in pertinent part:  “Anything mentioned in the specifications and not shown on the 
drawings, or shown on the drawings and not mentioned in the specifications, shall be 
of like effect as if shown or mentioned in both.” and “[I]n case of difference between 
drawings and specifications, the specifications shall govern” (R4, tab 1 at 10).  The 
contract specifications included section 10620, “Demountable Unitized-Panel 
Partitions.”  The products to be provided by the contractor included Tackable Acoustic 
Panels, Technology Panels, Panel Connectors, Electrical and Data cabling running 

28 
 
through the panels, Worksurfaces, Overhead Storage Shelves and Pedestals (R4, tab 4 
at 449-51; tr. 3/68-70).  The drawings also included information relating to the 
partitions.  Drawing A.2 indicated open offices with demountable partitions in Units 
200, 400 and 500 with dashed lines as shown below:   
 
 
 
The drawing included a typical layout for an open office, showing the partition 
and work surface, but none of the other products listed in the specification to be 
provided, as shown below: 
 
 
 
 
 
 
 
 
 
 
(R4, tab 3 at 7; tr. 1/71-73, 4/113; see also tab 211 (CO $19K for additional 
worksurfaces, pedestals and OH storage)). 
 
79.  The typical office configuration shows the work surface abutting non-
partition, solid walls, which Kallidus interpreted to mean the office furniture in the 
open offices was free standing, not part of the partition system, and to be supplied by 
the government (R4, tab 3 at 7; tr. 1/74). 
 
80.  Under date of March 12, 2012, Kallidus requested additional information 
regarding the demountable partitions, specifically a detailed layout showing “panel 
sizes, openings, etc.”  In response the government transmitted four sketches, which 


29 
 
showed the layout with the openings in the partitions to provide access to the work 
area, but provided no further information (R4, tab 46; tr. 1/73). 
 
81.  Kallidus transmitted submittal #132 for the partitions in early November 
2012.  The submittal included general information from the manufacturer and several 
sketches showing a proposed layout of the panels only, nothing was shown with regard 
to the other products, such as pedestals and overhead storage, included in the Products 
section of specification 10620 (R4, tab 116; tr. 1/73).  The government rejected the 
submittal on December 1, 2012, noting the submittal failed to show work surfaces, 
overhead storage, technology panels and pedestals amongst other reasons (R4, tab 118 
at 3; tr. 1/73-74). 
 
82.  Kallidus had begun installing the partitions prior to receiving the 
government’s response to the submittal and completed its installation on December 4, 
2012 (tr. 1/74).  That same day the government issued an NTC, directing Kallidus to 
provide technology panels capable of running electrical and data cabling within the 
panel, overhead storage and work surfaces and to remove the partitions previously 
installed (R4, tab 119 at 2-3).  
 
83.  Under date of December 10, 2012, Kallidus submitted RFI #90.  Kallidus 
sought information to resolve conflicts between the partitions and the windows.  (R4, 
tab 120)  The next day Kallidus, responding to the government’s NTC, advised it had 
provided partitions in accordance with the specifications (R4, tab 121 at 3-10).   
 
84.  The government subsequently directed Kallidus to install a “complete 
demountable panel system” per the specifications, not just the partition panels (R4, 
tab 128 at 3-5, 9).  The government also directed Kallidus to shift the partitions to 
avoid the conflict with the windows (R4, tab 123).  Meeting notes indicate that in early 
January 2013, Kallidus sought layout information from the government regarding the 
partition systems (R4, tab 124 at 5).  In mid-January 2013, the government’s architect 
issued sketches of typical partition layouts with the worksurfaces, pedestals and 
overhead cabinets listed in the Products section of the specification (R4, tab 128 
at 6-8).  The architect stated that it had prepared the sketches as a courtesy for 
Kallidus, which should have developed this information itself as part of its shop 
drawings (id. at 6).  The COR shared this view (tr. 3/68-77, 4/54). 
 
85.  The record includes drawings from other federal government projects with 
demountable partitions that Kallidus has performed.  These drawings include detailed 
layouts showing the partitions and the other components, such as pedestals, storage 
spaces, etc. (tr. 4/51-54,103; R4, tabs 168-70). 
 

30 
 
86.  Kallidus revised its submittal to include all of the equipment items listed in 
the Products section of the specification and resubmitted it under date of February 4, 
2013.  The government approved the revised submittal (R4, tab 210; tr. 1/75). 
 
87.  After receiving the government’s approval, Kallidus solicited a proposal 
from Union Office Interiors (UOI) for the pedestals, storage and worksurfaces, etc. 
that had been missing from its initial partitions submittal, and UOI’s proposal came 
back in the amount of $19,738 (app. supp. R4, tab 318 at 3-17).  On February 12, 
2013, Kallidus issued a change order in the amount of $19,738 for it to supply and 
install the worksurfaces, pedestals, storage and etc. (app. supp. R4, tab 252 at 53). 
 
88.  In August 2016, Kallidus submitted proposed change order #13 to the 
government in the amount of $28,154 for this work.  The proposed change order 
comprised the $19,738 for UOI plus $2,240 for Kallidus’ site supervision, plus 
markups for Workman’s Compensation, insurance, home office overhead, profit and 
bond costs (id. at 52).  Kallidus included this $28,154 in its initial claim (R4, tab 154 
at 5, 7).  The contracting officer denied the claim in its entirety (R4, tab 155 at 51; 
tr. 4/50). 
 
89.  Kallidus’ expert, Mr. Hunsicker opined that the drawings did not 
sufficiently show what was ultimately required by the government and that the 
drawings should have provided more detail showing all the required components and 
where they were to be located (tr. 2/120-29, 5/118-20).    
 
PCO #15, Paint Window Trim And Walls 
  
90.  The IDIQ contract includes by reference the Material and Workmanship 
(APR 1984), Permits and Responsibilities NOV 1991), and Warranty of Construction 
(APR 1984) clauses, FAR 52.236-5, FAR 52.236-7 and FAR 52.246-21 respectively 
(R4, tab 1 at 10-11).  These clauses were incorporated into the task order by reference 
(id. at 15; tab 9 at 11).  In pertinent part the Material and Workmanship clause states: 
“[a]ll work under this contract shall be performed in a skillful and workmanlike 
manner.” (FAR 52.236-5(c)).  In pertinent part the Permits and Responsibilities clause 
states: “[t]he Contractor shall also be responsible for all materials delivered and work 
performed until completion and acceptance of the entire work, except for any . . . work 
which may have been accepted under the contract.” (FAR 52.236-7).  In pertinent part 
the Warranty of Construction clause states:  “ . . . the Contractor warrants . . . that work 
performed under this contract conforms to the contract requirements and is free of any 
defect in equipment, material, or design furnished, or workmanship performed by the 
Contractor or any subcontractor or supplier at any tier.” and “[t]he Contractor shall 
remedy at the Contractor’s expense any failure to conform, or any defect.” (FAR 
52.246-21 (a) and (c)). 
 

31 
 
91.  The specifications included a requirement that temporary heat be provided 
during the months of November through March (R4, tab 4 at 60).   
 
92.  The specifications include several provisions relating to building 
temperature.  Section 09250 of the specifications, Gypsum Board, requires that the 
temperature of the building materials and the surrounding air temperature be 
maintained at a minimum of 55 degrees Fahrenheit (F), prior to, during and after 
completion of the drywall work.  Section 09510, Suspended Acoustical Ceilings, 
requires that the temperature be maintained at a minimum of 60 degrees F prior to, 
during and after installation of the acoustical ceiling work.  Neither provision includes 
any criteria regarding maximum temperatures.  The painting specification, 
section 09900, requires that paint be stored at a temperature of at least 45 degrees F 
and no more than 90 degrees F and that the surface and ambient temperature of the 
building be above 45 degrees F for 24 hours before, during and 48 hours after 
application of the paint unless otherwise specified by the manufacturer (R4, tab 4 
at 360, 376, 420; tr. 3/85-86).  The specification includes no maximum temperature 
with regard to painting beyond its storage. 
 
93.  In late October 2012, Kallidus had started the interior painting work.  
Temporary heating was not being used and the government issued a NTC, directing 
Kallidus to comply with the temperature requirements of sections 09250, 09510 and 
09900 of the specifications (R4, tab 257; tr. 1/77).  
 
94.  The government withdrew the NTC after Kallidus advised it had been 
delayed in initiating the use of temporary heat by an electrical problem that had 
prevented the building from being energized.  Kallidus also advised the building was 
energized as of October 31, 2012, and that the temporary heat system was in operation 
(R4, tabs 201-02).  The heating of the building remained an issue and the government 
issued a Cure Notice in January 2013 (R4, tab 126). 
 
95.  Kallidus responded that it had been in compliance with the building 
temperature requirements since October 27, 2012 (R4, tab 129).  Kallidus contends the 
government was misinterpreting the specifications by requiring the surface 
temperatures of the building’s interior surfaces to meet temperatures specified for the 
interior ambient, or air temperature, which required Kallidus to raise the air 
temperature significantly (tr. 1/79-83). 
 
96.  The parties agree that the interior temperatures were increased; as much as 
into the 90s, which was hot enough to cause cracking and peeling, which Kallidus was 
required to repair (tr. 1/83, 144-47; R4, tab 155 at 52; gov’t br. at 52). 
 
97.  Kallidus issued a modification to Ralls Painting, Inc. in the amount of 
$12,214 for the repairs and repainting necessary to repair the damage caused by the 

32 
 
heat (tr. 1/83; R4, tab 213).  This amount formed the basis for PCO #15, Kallidus’ 
change order request for the alleged additional painting work in the total amount of 
$20,102 (app. supp. R4, tab 252 at 67; tr. 1/83). 
 
98.  Kallidus included PCO #15 in its initial claim (see SOF ¶ 10).  
 
Parapet Wall And Unreleased Retainage 
 
99.  The existing roof conditions at Unit 300 at the time of contract award were 
severely degraded with the roof membrane compromised and the underlying concrete 
decking in need of rehabilitation in several locations (R4, tabs 3 at 22, 24, tab 345; 
app. supp. R4, tabs 278-283, 286, 288, 290, 345; tr. 1/95-98, 124, 3/101-02, 5/63-66).  
The decking had absorbed water over an extended period of time due to these issues at 
the time the contract was awarded (tr. 1/88-89, 2/181-87, 3/99-102, 4/82-83, 113-17, 
5/70-71).  The existing conditions included the formation of stalactites (calcification) 
from water dripping long term through the decking (app. supp. R4, tabs 277-78; R4, 
tab 336 at 9, 25-27, 277; tr. 1/97-98, 3/100-01).  One of the purposes of the project was 
to make the building weather tight and inhabitable again (tr. 3/11). 
 
100.  The roof deck at Unit 300 has a parapet wall constructed of single course 
concrete masonry unit blocks (CMU), which were to be removed in their entirety and 
replaced with a new single course CMU parapet wall (R4, tab 3 at 5,9 (Details A and 
B), tab 4 at 10-12; tab 8, tabs 10-12; app. supp. R4, tabs 280-83, 286, 290; tr. 3/96-97).  
The decking at the edge of the parapet wall was severely deteriorated in several places 
and exposed to the elements (app. supp. R4, tabs 284-290; tr. 1/97-98). 
 
101.  The removal of the parapet wall began November 18, 2011, and was 
completed November 29, 2011 (R4, tab 325 at day 9, day 14 336 at 1-29).   
 
102.  Removal of the existing roofing at Unit 300 began in early April 2012 
(R4, tab 325 at day 100).  By late April 2012, the concrete restoration work was ready 
to be undertaken (R4, tab 325 at day 116, day 119).  The concrete restoration work 
continued into May 2012 (R4, tab 325 at days 120-21, 125, 128, 130, 132, 134-37).  
Reconstruction of the parapet wall began May 24, 2012 (R4, tab 325 at day 138).  The 
parapet wall re-construction work continued through mid-August 2012, when the wall 
caps were installed (R4, tab 325 at days 139-41, 143, 182-86, 193, 195-98). 
 
103.  The contract includes the Material and Workmanship, Permits and 
Responsibilities, and Protection of Existing Vegetation, Structures, Equipment, 
Utilities, and Improvements clauses, FAR 52.236-5, 52.236-7 and 52.236-9, 
respectively by reference (R4, tab 1 at 10).  The Material and Workmanship clause 
requires that all work under the contract be performed in a skillful and workmanlike 
manner (FAR 52.236-5).  The Permits and Responsibilities clause makes the contractor 

33 
 
responsible for all damage to property that occurs as a result of the contractor’s fault or 
negligence (FAR 52.236-7).  The last clause requires the contractor to protect existing 
improvements and to repair any damage caused by either the contractor’s failure to 
comply with the requirements of the contract or by the contractor’s failure to exercise 
reasonable care while performing the work (FAR 52.236-9). 
 
104.  Section 04200-Unit Masonry of the specifications included weep holes in 
the Products section.  The provision stated: 
 
A. Weepholes:  Provide 3/8”w x 2 ½”h x 3 3/8” l.  Cell 
Vent weeps of honeycomb, polypropylene construction. 
 
(R4, tab 4 at 225).  
        
     Sub-paragraph 3.9 of Section 04200, entitled, Flashing of Masonry Work, is 
the only portion of the specifications that indicated where the weep holes were to be 
installed.  It states:  
 
C.  Provide weep holes in the head joints of the first 
course of masonry immediately above concealed 
flashings. 
 
1.  Provide weep holes in base exterior block work 
spaced 24" on centers by omitting mortar vertical block 
joints and installing plastic weep slot. 
 
(id. at 231).  Kallidus did not install weep holes in the parapet wall because they were 
inapt and weren’t required by the contract, in any event.  Mr. Hunsicker testified weep 
holes are not suited for single course CMU construction, they are intended to be 
installed in cavity walls to permit moisture, that gathers in the cavity, to weep out to 
the exterior.  Also the weepholes specified were sized for use with bricks, which are 
smaller than the CMU that the parapet wall was constructed of and there were no 
concealed flashings involved in the parapet wall construction (tr. 2/139-53).  During 
his testimony, the COR acknowledged there was no concealed flashing in the parapet 
wall (tr. 4/92-93).  
 
105.  The specification relating to the roof membrane included several 
provisions relating to the roof’s wetness during installation.  Section 1.12 “Job 
Conditions” states in pertinent part: 
 
A.  SPM materials may be installed under adverse weather 
conditions (temperature, moisture, humidity), but 

34 
 
consultation with the manufacturers shall be required as 
[sic] manufacturers precautions followed. 
 
B.  All work shall be scheduled and executed without 
exposing the interior building areas to the effects of 
inclement weather.  The existing building and its contents 
shall be protected against all risks, and any damages shall 
be repaired or replaced.  All exterior building and ground 
areas shall be protected from damage.  
 
C.  Remove all existing moisture from concrete roof deck 
prior to installation of materials. 
 
(R4, tab 4 at 289). 
        Part 3 “Installation,” 3.2 “General” included the following pertinent provisions: 
 
D.  The substrate shall be clean, smooth, dry, free from 
flaws, sharp edges, loose and foreign material, oil and 
grease.  Roofing shall not start until all defects have been 
corrected. 
 
. . . . 
 
F.  All roof surfaces shall be free from water, ice, or snow. 
 
(id. at 295).  Section 3.3 “Re-Roofing Preparation” stated in pertinent part: 
 
B.  All roof surfaces to be covered with new roofing shall 
be level in plane, smooth without ridges or depressions, 
dry and free from dirt, debris, adhesives, and foreign 
materials before installation of new roofing materials 
begins. 
 
(id. at 296).  Section 3.5 “Job Conditions” stated in pertinent part: 
 
B.  All surfaces to receive new insulation, membrane or 
flashings shall be thoroughly dry.  Should excessive 
surface moisture occur, the contractor shall provide the 
necessary equipment to dry the surface prior to application. 
 
(id.).  Section 3.11 “Installation of Fully-Adhered SPM Membrane” stated in part: 

35 
 
A.  The surface of the insulation or substrate shall be 
inspected prior to installation of the roof membrane.  The 
substrate shall be clean, dry, and smooth with no excessive 
surface roughness, contaminated surfaces, or unsound 
surfaces such as broken or delaminated insulation boards. 
 
(Id. at 298)  The contract included no requirement that the slabs be tested for water 
absorption (tr. 4/114-15).  We find that the contract only concerned itself with 
moisture on surfaces and that there was no express requirement beyond that. Concrete 
is sponge-like and can absorb water (tr. 4/115-16).  
 
106.  During construction, Kallidus deployed tarps to keep water from the 
existing structure and the construction materials (R4, tab 336 at 96, 98-106, 109, 
113-14, 116, 123).  Despite these efforts, water entered the building and wetted the 
structure and the construction materials on occasion (R4, tab 336 at 58, 93, 98, 
tab 337; tr. 3/112-13).  No evidence was introduced to indicate that Kallidus’ efforts to 
keep the water out were not reasonable or contrary to industry standards.  The only 
evidence received directly relating to this point was that it would be unreasonable to 
expect Kallidus to keep all water from getting onto the concrete roof deck substrate 
(tr. 2/183-84, 196-97).  Nor was any evidence introduced that established that Kallidus 
ever installed the roofing membrane in violation of the specifications or the 
manufacturer’s recommendations regarding installation of its product.  Mr. Hunsicker 
testified it would be unrealistic and unreasonable to expect a contractor to keep an 
exterior roof completely dry throughout demolition and construction (tr. 5/126-29).  
Mr. Blair testified Kallidus was required to protect the entire worksite throughout the 
duration of contract performance (tr. 5/24).    
 
107.  After the concrete repair and rehabilitation work and the rebuilding of the 
parapet wall, the exterior walls of Unit 300 were to be coated with a high performance 
elastomeric coating (R4, tab 4 at 220, 227, 232-33).  In early April 2012 Kallidus 
proposed an elastomeric coating system and received the government’s approval (R4, 
tab 136 at 3-16). 
 
108.  The coating work at Unit 300 began in late June 2012 (R4, tab 325 at 
day 162).  Kallidus coated the building prior to installing the parapet wall caps, and in 
the absence of those caps or tarps water could enter the parapet wall whenever it 
rained (R4, tab 152 at 5, tab 336 at 58, 66, 89, 93, 98, 117-20, 124, 146, 152-55, 157, 
159, 162, 165-70, 172; tr. 4/107-14).  However, no evidence was received into the 
record establishing that it rained after Kallidus began the coating work and before the 
parapet wall caps had been installed.   
 
109.  Under date of April 9, 2013, the COR advised Kallidus that substantial 
completion had been achieved (R4, tab 135; tr. 1/85-86).  The next day the 

36 
 
government issued an NTC regarding the parapet wall.  The government advised the 
coating product was failing in several locations, the parapet wall was leaking and gave 
Kallidus three days to respond with a plan for correcting the noted deficiencies (R4, 
tab 136 at 1-2).  Consequences of the parapet wall leaking includes water filling the 
wall and the surrounding areas causing blistering in the elastomeric coating and the 
formation of stalactites on the underside of the concrete planking of the observation 
deck (tr. 4/74).  
 
110.  Kallidus brought the manufacturer of the coating product, Sarnafil, to the 
site on April 12, 2013, to discuss how to resolve the issues the government had noted 
(tr. 1/86).  The manufacturer recommended that where the product had peeled or 
blistered, it be removed with a wire brush, any voids be filled with another product and 
the coating be reapplied (R4, tab 214 at 2).  With respect to the peeling at the mortar 
joint between the CMU and the parapet wall cap, the manufacturer’s representative 
opined that moisture in the decking could have been the cause (id.).     
 
111.  Kallidus implemented the recommendations and the COR recommended 
that the government accept the building on April 19, 2013 (R4, tab 137; tr. 1/86).  The 
acceptance memorandum noted that all interior and exterior punchlist items had been 
completed except for four listed items and that six items contractually required, 
remained to be performed or provided.  The acceptance memorandum includes no 
reference to the parapet wall or the elastomeric coating (id.). 
 
112.  On May 2, 2013, the government advised Kallidus via email that the 
parapet wall was still leaking and directed Kallidus to provide a plan of action (R4, 
tab 139; tr. 1/86-87). 
 
113.  Upon receipt of photographs taken by the government on May 2, 2013, 
Kallidus’ opinion was that there was no leaking, but that there were minor blemishes 
and stains to the elastomeric coating finish caused by condensation and airborne debris 
(R4, tab 215; tr. 1/87-88, 90-91).   
 
114.  The government took possession of the building on May 10, 2013, subject 
to 14 listed exceptions.  One of the listed exceptions was for parapet wall leaks at the 
East and West elevations (R4, tab 142; tr. 1/91). 
 
115.  In late June and early July 2013, the government took photographs of 
blistering in the elastomeric coating in areas below the deck of Unit 300 (R4, tab 336, 
at 1, 269-272). 
 
116.  By email dated September 6, 2013, Kallidus submitted Payment 
Application No. 14 (R4, tab 224 at 5).  The government rejected it the same day.  
Seven reasons for the rejection were provided, including leaking concrete planking 

37 
 
(decking) (R4, tab 216 at 3; tr. 1/91-92).  Kallidus requested that the government 
provide a cost for each of the seven items listed in the rejection (R4, tab 216 at 3).  In 
response, the government indicated it was withholding $50,000 for parapet wall 
leaking.  Altogether the government withheld $350,000 from Kallidus for the seven 
items it had listed in its rejection (id. at 1). 
 
117.  Kallidus arranged for a representative from the coating manufacturer to 
visit the site to determine the source of the leaking problem and how to fix it (R4, 
tab 217 at 4; tr. 1/92). 
 
118.  After visiting the site on October 21, 2013, to inspect the problem, 
Kallidus and the coating manufacturer’s representative did not believe the problem 
was attributable to a roof leak (R4, tabs 217-19 at 1; tr. 1/93).  Nevertheless, the 
government refused to release the funds it was withholding for the leaking and in a 
further effort to obtain the amount being withheld by the government for the leaking, 
Kallidus had the coating manufacturer perform testing to establish the roof was 
watertight and not leaking (R4, tab 220 at 1, tab 221 at 1).  The testing established the 
roof was not leaking.  The manufacturer opined that the leaking might be attributable 
to latent moisture in the decking prior to placement of the roof (R4, tab 221 at 1; 
tr. 1/93, 3/130).      
 
119.  In April 2014, Kallidus again contacted the manufacturer to advise that 
water and calcification were still being observed on the underside of the roof decking 
and request that further investigation in the areas investigated in November 2013 be 
made.  The manufacturer responded that the previous investigation had established the 
roof was watertight and that the problem was due to latent moisture in the concrete 
decking but agreed to assist (R4, tab 226).  
 
120.  Under date of May 2, 2014, Kallidus resubmitted Payment Application 
No. 14.  The government again rejected it, in part due to the parapet wall leaks (R4, 
tab 225 at 2-3).  
 
121.  The manufacturer revisited the site in June 2014 as Kallidus had 
requested.  No leak was detected (R4, tab 227 at 2; tr. 1/94-95).  In September 2014, 
Kallidus submitted Payment Application No. 15 seeking payment of $174,900
17, 
which included the $50,000 the government had withheld for the parapet wall leaking 
(R4, tab 227 at 1-2, 6-9, tab 240).  The government asserted the building was still 
leaking in response, although it acknowledged that a source other than the roof could 
be causing the leak (R4, tab 228 at 2).   
 
17 The payment request seeks $174,900 at line I of the form.  This appears to be an 
arithmetical error of $100 in the government’s favor based on the entries on 
lines G and H of the payment request form.  

38 
 
 
122.  Kallidus submitted Payment Application No. 16 by email dated 
September 25, 2014.  Kallidus reiterated that there was no evidence the parapet wall 
was leaking and protested the government’s withholding of sums for the leaks.  
Kallidus sought the return of the $50,000 the government was withholding for the 
parapet wall leaks (R4, tab 149, at 1, 6-10). 
 
123.  The government continued to assert the leaks or blisters were Kallidus’ 
responsibility and refused to release the $50,000 that was being retained for this issue 
(R4, tab 150 at 1-3).  Kallidus proposed that a water infiltration consultant be retained 
to resolve the matter because it considered it had exhausted all other options (id. at 2).  
The government agreed to this proposal and directed Kallidus to propose three 
companies for the government to select from (id. at 1). 
 
124.  Kallidus contacted several water infiltration consultants and forwarded 
their information to the government for consideration (R4, tab 232). 
 
125.  Over the next approximately six months Kallidus sought to meet with the 
government to resolve the issue and get the withheld $50,000 released without success 
(tr. 1/99; R4, tabs 233-36). 
 
126.  Kallidus’s president, Mr. Patel, testified that the government agreed to pay 
for the consultant if it turned out that Kallidus’ workmanship was not the cause of the 
problem (tr. 1/99; R4, tab 237 at 1).  The government did not rebut this testimony. 
 
127.  The parties were finally able to meet to discuss the issue in July 2015, and 
Kallidus agreed to retain a water infiltration expert to explore and find the root cause 
of the continued blistering of the coating (tr. 1/99-00; R4, tab 237).  Subsequently, 
Kallidus proposed retaining the services of Building Science Corporation (BSC) to 
perform the investigation and propose a fix.  Kallidus reiterated that it was its 
understanding the government had agreed to pay for the costs of these services should 
it be established Kallidus’ workmanship was not the cause.  (R4, tab 238 at 1).  The 
record includes no evidence that the government ever directly responded to Kallidus. 
 
128.  Kallidus continued to seek release of the $50,000 and other sums being 
withheld by the government without success (tr. 1/100; R4, tabs 239-42).  BSC was 
hired in September of 2015 and the government agreed to release all of the withheld 
sums except for $50,000, which it said it would continue to hold until the parapet wall 
leaking problem was resolved to its satisfaction.  BSC conducted its investigation in 
October 2015 (R4, tabs 151-52 at 2; app. supp. R4, tab 248 at 7).  In its report BSC 
noted the blistering of the elastomeric coating was sporadic on the exterior faces of the 
building and did not correspond to a pattern or regularity with respect to locations such 
as corners, control joints, penetrations and scuppers (R4, tab 152 at 2).  BSC also 

39 
 
noted calcification on and below the observation decks (id.)  BSC noted the 
elastomeric coating was continuous without gaps or discontinuities for the most part, 
but noted three locations where gaps occurred, one of which the government noted had 
only recently developed (id.).  In the Analysis section of its report, BSC stated that 
blistering of elastomeric coatings can occur due to the presence of water in the 
underlying structure.  It noted water can be present from three different sources, 
exterior, such as rain and snow; interior, such as plumbing leaks and humidity; and 
built-in, such as moisture present during construction or the use of wet materials (id. 
at 4-7).  BSC largely dismissed exterior moisture as being the cause of the blisters, 
noting it could not find any obvious sources of entry for rainwater.  It similarly 
dismissed interior sources as being the cause of the problem.  BSC attributed the 
problem to built-in moisture, noting the design of the parapet wall, by RAI was a 
higher risk design, which would lead to blistering over the long term.  BSC opined the 
blistering early in the project was due to built-in moisture, noting that the coating of 
the parapet wall prior to the installation of the roof membrane and the parapet 
capstones provided an entry way for water into the CMU while limiting the potential 
for the CMU to drain water or dry out effectively (id. at 5-7).  Cracks forming in the 
coating due to common building movements would permit water to enter the structure, 
which likely would be in quantities too great to dry through the coating (id. at 2, 7).  
BSC also found that the coating on the West face of the Southwest corner of Unit 300 
was thicker than recommended by the manufacturer and that this likely impeded the 
diffusion of water through the coating leading to blistering (id. at 6).  We find that the 
most likely cause of the blistering, or leaking was built-in moisture, primarily from the 
pre-existing deteriorated state of the roofing (see SOF ¶¶ 99-100, 106, 108, 118-19). 
 
129.  Upon receipt of the report, Kallidus shared it with the government and 
offered to clean and recoat the blistered areas.  Kallidus requested that the government 
release the retained amount after it had done so and stated that due to BSC’s opinion 
that future blistering was likely to occur because of the government’s design, it would 
not assume any liability for future blistering (R4, tab 153 at 5). 
 
130.  Several months went by with Kallidus attempting to recover the withheld 
funds and to get the government to agree to its proposal.  The parties met in May 2016, 
to discuss this matter.  At the meeting it was agreed that Kallidus would strip the 
coating from the face of the parapet wall and recoat it.  Upon mobilization the 
government would pay $25,000 of the withheld $50,000 with the release of the 
remainder upon completion of the work (id. at 1-4).  Kallidus then sought approval of 
what had been agreed to and assurance from the government that it would pay $25,000 
upon mobilization with release of the remainder upon completion (R4, tab 265 at 1).  
The government indicated it would respond by early June 2016 (tr. 1/102; R4, tab 265 
at 1).  The government failed to respond as promised, which prompted Kallidus to 
request the contracting officer to take action (R4, tab 249 at 1-2).  The government 

40 
 
promised to respond by the end of June 2016 (R4, tab 250).  The record includes no 
evidence that the government ever responded. 
 
131.  PCO #17 in the total amount of $29,427 was prepared November 11, 
2016, to cover the parapet wall leak issue.  The proposal includes $12,185.53 in direct 
costs before markup for labor burden for the time of Kallidus’ personnel between 
December 3, 2013, and May 19, 2016, Kallidus travel costs to the site in the amount of 
$363 and $6,762.40 for BSC as well as mark up for overhead and profit on these direct 
costs (app. supp. R4, tab 314).  Kallidus subsequently included this amount in its 
initial claim dated November 28, 2016 (R4, tab 154 at 5).  
 
132.  The contract incorporated the Payments Under Fixed-Price Construction 
Contracts (FAR 52.232-5, SEP 2002), by reference (R4, tab 1 at 10).  In pertinent part 
the clause states: [w]hen the work is substantially complete, the Contracting Officer 
may retain from previously withheld funds and future progress payments that amount 
the Contracting Officer considers adequate for protection of the government and shall 
release to the Contractor all the remaining withheld funds.  (FAR 52.232-5(e)).   
 
133.  The amount withheld, $50,000, was based on an unsupported, rough take 
off.  No detailed estimate based on estimated labor hours, materials and equipment 
required to perform the repairs was prepared (tr. 4/118-19).  The record includes no 
evidence of the extent of the blistering problem, i.e., no list itemizing the number, size 
and location of the blisters or other similar evidence.  The record also includes no 
evidence that Kallidus recoated the building after the parties’ May 2016, meeting, or 
that the government has undertaken any repair efforts since then.   
 
134.  The contracting officer denied Kallidus claim relating to the parapet wall 
and the return of the retention.  The decision states that Kallidus failed to install the 
parapet wall in accordance with the contract documents and specifically cites the weep 
hole provisions in the specifications.  No further reason for the decision is provided 
(R4, tab 155 at 54-55).  During the hearing the government offered no testimony or 
other evidence to support finding that weep holes were required in the parapet wall.  
The final decision did not set forth the government’s reasoning for its decision to 
refuse to release the retainage, nor did it provide a basis for the amount withheld. 
 
ASBCA No. 61976-Simpson Ties 
 
135.  Drawings S9, details 1, 3, 4 and S10, detail 28, show products 
manufactured by the Simpson Strong Tie Company to be provided.  Simpson LCB 18 
connectors are indicated in details 1 and 4, and details 3 and 28 show a Simpson 
MSAS mudsill (R4, tab 3 at 26-27; tr. 1/104). 
 

41 
 
136.  After the contract had been awarded, Kallidus discovered Simpson no 
longer manufactured either the LCB 18 connector or MSAS mudsills and requested 
information from the government via RFIs #27 and 28.  The government directed 
Kallidus to provide LCB 66 connectors and the MASA mudsill instead (R4, tab 251, 
at 13-14).  The government’s response to RFI #27 is dated March 1, 2012, and the 
response to RFI #28 is dated February 18, 2012 (id.). 
 
137.  At the hearing Kallidus’ president testified the revised Simpson products 
resulted in additional purchase and installation costs for Kallidus (tr. 1/104-05).  The 
government’s engineer testified there should have been no additional installation costs 
(tr. 3/81-83). 
 
138.  Kallidus prepared PCO #14 in the amount of $26,564 for the Simpson 
products (R4, tab 251 at 1-12).  However, the claim was never submitted to the 
contracting officer for consideration prior to Kallidus’ filing its Complaint in ASBCA 
No. 61377 (app. supp. R4, tab 313, attachment, tab 319 at 1).  Two months before the 
hearing was scheduled to begin, the government filed a partial motion to dismiss the 
Simpson products claim, arguing the Board lacked jurisdiction to consider it because it 
had never been submitted to the contracting officer (Bd. corr. dtd. January 16, 2019; 
R4, tab 313, attachment).  Kallidus, in a conference call to discuss the motion held on 
January 24, 2019, agreed it had not presented the claim to the government (Bd. corr. 
dtd. January 24, 2019 at 2).  Subsequently, but prior to the hearing, Kallidus submitted 
the claim to the contracting officer, who denied it under date of February 15, 2019 
(R4, tab 351).  Amongst several reasons proffered in support of the denial, the 
contracting officer contended the claim was untimely because it had been submitted 
more than six years after the claim arose (id. at 4).   
 
139.  By letter dated February 21, 2019, Kallidus appealed the final decision 
and requested that the matter be consolidated with its previous appeal (Bd, corr. dtd. 
February 21, 2019).  The appeal relating to the Simpson products claim was docketed 
as ASBCA No. 61976 (Bd. corr. dtd. February 22, 2019). 
 
DECISION 
 
 In order to prevail on its claims, Kallidus must demonstrate entitlement by a 
 preponderance of the evidence, which the Board defines as proof by a party 
 establishing that its position is more probable than not.  See Lockheed Martin 
Aeronautics Co., ASBCA No. 62209, 24-1 BCA ¶ 38,590 at 187,608  
citing Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001); Trade West 
Constr., Inc., ASBCA No. 61068, 22-1 BCA ¶ 38,214 at 185,596 (citing Jack Heller, 
Inc., ASBCA Nos. 14300, 14376, 72-2 BCA ¶ 9,477 at 44,147).  As described below, 
we decide Kallidus has met its burden with respect to some of its claims, but has failed 
to do so with respect to others. 

42 
 
 
Windows Appeal 
Parties’ Positions 
Kallidus argues the windows specification was ambiguous, that the government 
changed the specification, that the government breached the implied warranty of the 
specification, that the specifications were defective and that the government breached 
the contract by not acting in good faith and failing to cooperate (app. br. at 85-94). 
 
The government argues there was no problem with the specifications for the 
windows, that if there was an ambiguity it was patent, that Kallidus failed to include 
pricing for the windows in its bid price and that it is trying to recover from this failure 
by claiming the costs of the contract required windows as an additional cost (gov’t. br. 
at 111-15).  
 
Windows Appeal Upheld 
 
There is no real dispute that the government revised the specification relating to 
the windows after the contract was awarded.  The government attempts to avoid this 
reality, asserting that it was relaxing the specification in an effort to assist Kallidus 
(gov’t br. at 20, 112-13). 
 
The government admits it made changes to the specification in response to 
RFI #8 although it attempts to minimize this by characterizing the changes as being 
necessitated by an “oversight” on the part of its architect when revising the 
specification from the Anderson Woodwright window specified in the original 
solicitation to the Weather Shield window it intended to solicit for when the project 
was rebid (gov’t br. at 18).   
 
The government acknowledges that the Weather Shield window Kallidus 
offered with PCO #3 in early March 2012, “generally met the Specification 
requirements” (gov’t br. at 19).  Implicit in this assertion is acknowledgement that it 
did not fully satisfy the government’s requirements.  While some of the changes made 
subsequently may have been a relaxation, others were not.  For example, the change in 
the glazing from Zo-e 5 to Zo-e 6, which was characterized as being a premium energy 
efficient glass, the change from the originally specified primed wood to a factory 
applied poly finish and the accompanying change from nailing to installation clips.  
With respect to other changes made such as the change to the air space size, evidence 
was not proffered as to whether this was a relaxation, or an upgrade.  The 
government’s argument can be summarized as being that it did not require anything 
other than what was specified initially.  The inaccuracy of this argument is 
underscored by (1) the government’s acknowledgement the contract did not include a 
specification for a Weather Shield primed wood window and (2) the manufacturer’s, 

43 
 
Weather Shield, refusal to agree that the window finally provided met the 
specifications, even as revised through its discussions with the government’s 
representatives.  Kallidus recognized its risk and attempted to get the government to 
agree to accept the windows based on the approved shop drawings rather than the 
specification but capitulated and ordered the windows after the government issued its 
Cure Notice based on the features that the government’s architect had negotiated 
directly with Weather Shield.  We find the government’s actions resulted in a 
constructive change to the contract.  The elements of a constructive change are:  
(1) work performed beyond the contract requirements, and (2) the additional work was 
expressly or impliedly ordered by the government.  AMEC Environment & 
Infrastructure, Inc., ASBCA No. 58948, 15-1 BCA ¶ 35,924 at 175,593 citing 
Bell/Heery v. United States, 739 F.3d 1324, 1335 (Fed. Cir. 2013).    
 
These elements are satisfied here.  Work performed beyond contract 
requirements is discussed above in greater detail, but to reiterate several examples; 
factory poly finish and installation clips versus paint primed wood and nailing, Zo-e 6 
energy efficient glass versus Zo-e 5.  These and the other changes discussed above 
were caused by the government’s representatives’, principally its architect engineer, 
communications with Weather Shield and adopted by the contracting officer.  The 
changes were expressly ordered by the contracting officer through the cure notice 
directing Kallidus to order the windows in accordance with the shop drawings, which 
incorporated the changes.  (SOF ¶¶ 19, 21, 26, 28-29, 32-50). 
 
We do not find it necessary to address Kallidus’ argument that the architect and 
other government representatives’ direct contacts with Kallidus’ supplier and the 
manufacturer were improper interferences; it is enough that we recognize Kallidus’ 
claim that changes were made to the specifications relating to the window after the 
contract was awarded, for which Kallidus is entitled to an equitable adjustment.  There 
is no need to discuss Kallidus’ other arguments either. 
 
Detailed evidence relating to the costs associated with the changes made to the 
specifications was neither offered, nor received in this entitlement-only hearing.  
Kallidus did offer some evidence, in the form of a price quote from its supplier Devon 
in the amount of $39,608.90 for Weather Shield 610 series base bid windows.  While 
the government disputes that these windows satisfy the contract’s requirements, it 
offered no evidence to support this contention.  We make no findings regarding the 
cost effects of the changes made to the specifications.  
 
The government’s argument that the claim is merely an attempt by Kallidus to 
rectify its error in not including any cost for windows in its bid price other than as an 
option, is undercut by Kallidus’ acknowledging that it made this error and including a 
credit for same in its window claim (gov’t br. at 20).  Kallidus may have at one time 
briefly asserted the contract did not require window work other than as an option, but 

44 
 
it quickly retracted this assertion.  We view the government’s argument as a red-
herring and find it unpersuasive.  
 
The problems with the specifications begs the question, should Kallidus have 
been aware of them at bid time?  Kallidus argues the contract was “riddled with latent 
ambiguities” with respect to the windows (app. br. at 87-88).  The government argues 
any ambiguities were patent (gov’t br. at 98-101, 113-14).  We note that it is difficult 
to prove patent ambiguity.  '"The doctrine of patent ambiguity is an exception to the 
general rule of contra proferentem, which courts use to construe ambiguities against 
the drafter."'  Blue & Gold Fleet, L.P. v. United States, 492 F.3d 1308, 1313 (Fed. Cir. 
2007) (quoting E.L. Hamm & Assocs. Inc. v. England, 379 F.3d 1334, 1342 (Fed. Cir. 
2004)).  For that reason, the bar to proving patent ambiguity is high, and the 
inconsistency must be so “obvious, gross, [or] glaring, so that plaintiff contractor had a 
duty to inquire about it at the start.”  NVT Techs., Inc. v. United States, 370 F.3d 1153, 
1162 (Fed. Cir. 2004) (internal quotation marks omitted, alteration in original); LAI 
Servs., Inc. v. Gates, 573 F.3d 1306, 1315-16, reh. den. (Fed. Cir. 2009).  See also 
Triax Pacific, Inc. v. West, 130 F.3d 1469, 1474-1475 (Fed. Cir. 1997). 
 
Here the issues with the specifications were not so apparent that Kallidus should 
have made inquiry before submitting its proposal.  We find Kallidus’ interpretation of 
the contract, i.e., that the government was not really interested in a window other than 
the Andersen Woodwright window as an option, to be reasonable in the circumstances 
presented.  This is based on the fact that the Andersen Woodwright vinyl clad window 
was the window specified in the original solicitation and drawings.  When the 
government decided to cancel the original solicitation and descope the project in an 
effort to obtain proposals that were within the limits of the available funds when it 
resolicited the project, it did not change the specifications and drawings relating to the 
windows.  Nor did the synopsis of the changes made to the specifications and drawings 
include any mention of the windows.  It did change the Andersen window from being 
the base bid to an option and substituted the Weather Shield Series 610 window with a 
primed finish as the base bid window, but provided no specifications relating thereto.  
It was reasonable for Kallidus to interpret these actions to mean the government was 
primarily interested in the Andersen window and wanted as the base bid window, the 
Weather Shield window as provided by Weather Shield with factory glazing, no 
further options or features to be provided, should the government elect not to exercise 
the option.  The circumstances here resemble the dynamic circumstances in Dyson & 
Co., ASBCA No. 27276, 85-1 BCA ¶ 17,827, where we found the contractor’s 
interpretation of changes the government made to drawings and specifications nine 
days before bids were due that certain work had been eliminated was reasonable.  We 
find the short time period between the two solicitations, attributable to the 
government’s efforts to descope the project, resolicit and award the contract before the 
end of the fiscal year led to the government’s failure to revise the specification and the 
subsequent confusion that resulted therefrom (see tr. 5/95-96).     

45 
 
 
Mr. Blair, a government employee with no responsibility relating to the project 
during its performance, but offered and accepted as an expert, testified specification 
08500 was intended to cover both the option window and the base bid window, i.e. the 
base bid window was to have the same salient characteristics as the option window.  
We find this testimony unpersuasive.  This view is contradicted by other evidence 
indicating the inclusion of 08550 unrevised in the rebid solicitation was an oversight, 
i.e., a mistake on the government’s part.  The government also acknowledged that 
there was no specification included in the rebid solicitation for the base bid window 
(SOF ¶¶ 37, 45).  We share the view of Mr. Hunsicker that it makes little sense when 
rebidding a project to save money to then have a base bid window that matches the 
performance and other requirements of the original window specification that was 
initially bid and is now intended to be an option (tr. 5/105-06). 
 
Both parties made mistakes with respects to the windows, undoubtedly due to 
the short period of time between the cancellation of the first solicitation and the re-bid.  
The government left the specification for the Andersen window it originally wanted in 
the rebid solicitation specifications and failed to insert a specification for the window 
based on the Weather Shield window it wanted to substitute as the base bid window.  
Kallidus failed initially to price the base bid window.  The parties have dealt with 
these failures differently.  Kallidus has acknowledged its failure and offered a credit to 
the government in its claim.  The government has failed to accept responsibility for its 
error, argued the original specification is also applicable to the Weather Shield 
window, despite the different features and characteristics of the two windows and 
attempted to minimize or ignore entirely the effects its refusal to acknowledge its error 
had on Kallidus’ ability to perform.  For all of the above reasons we find Kallidus is 
entitled to recover for this claim. 
 
Windows Time Extension  
 
Position of the Parties 
 
Kallidus argues its Time Impact Analysis (TIA) establishes that it is entitled to 
105 days of delay (app. br. at 95).  The government argues Kallidus is responsible for 
all of the delay.  The government also argues the TIA is unreliable because it is 
prospective and includes data errors (gov’t br. at 29). 
 
Appeal Upheld 
 
Kallidus has the burden of proof to establish it is entitled to a time extension for 
government caused delays and the costs associated therewith.  Hedgecock Electric 
Inc., ASBCA No. 56307, 12-2 BCA ¶ 35,086 at 172,314 citing States Roofing Corp., 
ASBCA No. 54860 et al, 10-1 BCA ¶ 34,356; Wilner v. United States, 24 F.3d 1397, 

46 
 
1401 (Fed. Cir. 1994) (en banc).  Here there is no real dispute that delay occurred due 
to the issues involving the windows.  The government asserted delays occurred and 
even offered a no cost time extension.  The only issues are which party is responsible 
for the delay and what is the extent of the delay.   
 
To prevail on a claim for compensable delay, the claimant must “establish the 
extent of the delay, [its] harm resulting from the delay, and the causal link between the 
government's wrongful acts and the delay.”  Maverick Constructors, LLC, ASBCA 
No. 61989, 25-1 BCA ¶ 38,783 at 188,591 citing Essex Electro Eng’rs., Inc. v. Danzig, 
224 F.3d 1283, 1295 (Fed. Cir. 2000).  See also Derian, Inc., ASBCA No. 62957, 23-1 
BCA ¶ 38,425 at 186,756; States Roofing Corp., ASBCA No. 54860, 10-1 BCA 
¶ 34,356 at 169,661.  The Critical Path Method (CPM) of schedule analysis is the 
preferred methodology for determining causes of delay, Advanced Engineering 
& Planning Corp., Inc, ASBCA Nos. 53366, 54044, 05-1 BCA ¶ 32,806, at 162,323.  
A causal link exists when the claimant can demonstrate “that the government's actions 
affected activities on the critical path of the contractor's performance of 
the contract.”  Maverick Constructors, 25-1 BCA ¶ 38,783; citing Kinetic Builder's 
Inc. v. Peters, 226 F.3d 1307, 1317 (Fed. Cir. 2000). 
 
 To establish the delay Kallidus retained Mr. Eric Lowther, a consultant offered 
and accepted by the Board as an expert in scheduling and delay analysis, to prepare a 
prospective Time Impact analysis.  The analysis was prospective because it was 
prepared before the windows were ordered and installed.  The government posed no 
objection to Mr. Lowther as an expert, nor did it offer any competing delay analysis of 
its own.  We find the record as a whole mostly supports Mr. Lowther’s analysis, which 
establishes that delays we have found to be the fault of the government changed the 
project’s critical path, so that the windows, which were not originally on the critical 
path, became critical.  The Lowther analysis predicted that the window delays would 
cause an overall delay to the completion of the project of 105 days (SOF ¶¶ 52-54). 
 
 The government argues the time impact analysis is unreliable because it 
includes inaccuracies and is prospective (gov’t br. at 29).  We find these arguments 
unpersuasive.  The government offered no evidence of these claimed inaccuracies and 
prospective time impact analyses are routinely used to establish delays during contract 
performance.  Although not included in the specifications of this contract, the federal 
Unified Facilities Guide Specifications, used for specifying construction for the 
military services, include Section 01 32 01.00 10, Project Schedule, which in 
subsection 3.8.3 Time Impact Analysis (Prospective Analysis) thereof states in 
pertinent part: 
 
Submit requests for time extensions based on a prospective 
analysis if the work involved or the impact identified has 
not already occurred. . . .  Utilize a copy of the last 

47 
 
approved schedule prior to the first day of the impact or 
delay for the time impact analysis. 
 
 U.S. Army Corps of Engineers, United Facilities Guide Specifications (2025), 
https://www.wbdg.org/dod/ufgs/ufgs-01-32-01-00-10.  Mr. Lowther’s analysis was 
prepared before the work involved was completed and he used the last approved 
schedule.  Additionally, despite the government’s assertions that data inaccuracies 
existed at the time it was prepared, the government subsequently proposed a no cost 
time extension to October 15, 2012.  While most of the dates Mr. Lowther estimated to 
prepare the fragnet used to perform the time impact analysis despite being prospective 
turned out to be remarkably accurate, we note that Kallidus was able to finish the 
window installation by September 13, 2012, rather than September 24, 2012, as 
forecasted by Mr. Lowther18.  This has no effect on our ultimate conclusion that 
Kallidus is entitled to the 90-day time extension it is seeking.  Even assuming the 
earlier than predicted finish results in a day for day reduction in the number of total 
days of delay attributable to the windows issue, i.e., the maximum effect possible the 
earlier finish could have on the analysis, Kallidus’ claimed time extension is 4 days 
less than the 94 days of delay Mr. Lowther’s analysis adjusted to account for the 
earlier finish than predicted as discussed would support.
   
 
Cable Tray  
 
Parties’ Positions 
 
Kallidus argues the drawings and specifications did not require cable tray, or 
inadequately did so and requiring it to provide cable tray constituted a constructive 
change to the contract amongst other arguments (app. br. at 95-97).  The government 
argues the drawings and specifications do depict cable tray and that it required no 
more of Kallidus than what was depicted (gov’t br. at 116-20). 
 
 
18 A “fragnet” is “a sequence of new activities and/or activity revisions, logical 
relationships, and resource changes added to an existing schedule to 
demonstrate the influence of a new activity on the schedule.”  Nassar Grp. Int’l 
N.G.I. S.A.L. (Offshore) R.C., Doing Bus. As NGI Afghanistan for Contracting, 
ASBCA No. 58451 et al., 22-1 BCA ¶ 38,206 at 185,552 n.15.  See also 
Hedgecock Electric, Inc., supra at 172,305. Fragnets are a standard 
methodology accepted in the construction industry to analyze delay, 
John T. Jones Construction Co., ASBCA Nos. 48303, 48593, 98-2 BCA 
¶ 29,892, p. 147,972, par. 59.   
 

48 
 
Appeal Denied 
Kallidus’ claim is based on the following facts: That cable tray is not shown on 
the electrical drawings, which is where it is typically shown and while the HVAC 
drawings include a cross-hatched symbol the government contends denotes cable tray 
there is no legend anywhere in the drawings connecting the symbol with cable tray. 
 
All of Kallidus’ arguments fail because the contract, when viewed in its 
entirety, clearly requires installation of cable tray in the areas the record establishes 
cable tray was installed.  It is axiomatic that contracts are to be read as a whole, and 
that effect is to be given to all of the contract’s provisions with the goal of rendering 
noninexplicable, meaningless or superfluous.  (Sonabend Co., ASBCA No. 63359, 
24-1 BCA ¶ 38,482 at 187,034 (citing ECI Const., Inc., ASBCA No. 54344, 05-1 BCA 
¶ 32,857 at 162,807; Hol-Gar Mfg. Corp. v. United States, 351 F.2d 972, 979 (Ct. Cl. 
1965)).  It does not matter that the cable tray work was depicted on the mechanical 
drawings rather than the electrical drawings, where Kallidus asserts this work is 
typically indicated.  In R. A. Burch Constr. Co., ASBCA No. 39017, 90-1 BCA 
¶ 22,599, the electrical wiring for exhaust fans was mentioned in the mechanical 
specifications and depicted on the mechanical drawings, not in the electrical drawings 
and specifications.  The contractor’s electrical subcontractor argued, the mechanical 
contractor was responsible for the work because the information in the contract was 
insufficient for it to have known it was responsible for the work.  The contractor 
directed the electrical subcontractor to perform the work and submitted a claim on 
behalf of its subcontractor.  The contractor argued the drawings were insufficient and 
incomplete.  We denied the claim, stating in part: 
 
Appellant's counsel thoroughly attempts to distinguish the 
cases cited by the Government (app. reply br.); and, 
persuasively argues, from the subcontractor's point of 
view, that the so called “electrical drawings” alone did not 
put Helix Electric on notice that it would be required to 
provide wiring for the exhaust fans.  However, we are not 
called upon to determine whether Helix Electric was 
required to perform the disputed task under its subcontract.  
Our concern is whether the appellant under the terms of its 
prime contract with the Government, when that document 
is read as a whole, was required to perform the work for 
which it now seeks compensation. 
 
The drawings and specifications could undoubtedly have 
been prepared in a different fashion; and, undoubtedly 
could have been more completely cross referenced.  The 
appellant could just as easily have been more careful in its 

49 
 
distribution of effort among its subcontractors.  But, the 
evidence is clear that a bidder, reading the contract as a 
whole, would easily have recognized that the bathroom 
exhaust fans were required, and that the fans were to be 
wired for electricity and controlled at the bathroom light 
switch. 
 
The appellant would, in situations where the contract read 
as a whole is clear, transfer to the drafter the responsibility 
or authority to determine how work should be divided 
among a potential contractor's potential subcontractors. 
           
R. A. Burch, 90-1 BCA ¶ 22,599 at 113,395-96. 
 
The factual circumstances and arguments being made by Kallidus in these 
appeals are similar to those presented in R. A. Burch.  The specifications include 
provisions relating to cable tray and the tray is depicted, not in the electrical drawings 
where Kallidus argues this type of work is customarily found, but in the 
mechanical drawings.  The only difference of any significance is that there was no 
dispute in the R. A. Burch appeal regarding whether the exhaust fans wiring and 
switches were clearly depicted.  Here Kallidus argues the cable tray was depicted in 
the HVAC drawings using a symbol that was not denoted in any legend.  We find this 
argument unpersuasive for the following reasons.  First, although not denoted as such 
in a legend, the symbol used is one commonly used in the construction industry to 
denote cable tray.  Kallidus is charged with being familiar with customary usage and 
trade practice, including symbols commonly used in the construction industry by 
architect/engineers when drafting construction drawings.  Alfred A. Alimont, Inc. v. 
United States, 579 F.2d 622, 625, (Ct. Cl. 1978) (involving a trade custom of not 
detailing precise locations for lighting fixtures in drawings).  Even, were it not so 
charged, we find that not knowing what the symbol denoted would create a patent 
ambiguity, one which would be obvious to any reasonable bidder, creating a duty to 
inquire as to the meaning of the symbol before submitting its bid.  Triax Pac., Inc. v. 
West, 130 F.3d 1469, 1474–75 (Fed.Cir.1997).  There is no evidence in the record that 
Kallidus made any inquiry regarding the meaning of the symbol prior to submitting its 
proposal and because we find the cable tray work is clearly set forth in the 
specifications and drawings when read as a whole, we deny the claim.     
 
Excavation Plumbing 
 
Parties’ Positions 
 
This claim involves two components, additional slab cutting with associated 
work and additional plumbing.  Kallidus argues the drawings were deficient and failed 

50 
 
to include the plumbing the government required in Unit 400, a change to the contract.  
It argues its interpretation of the contract that plumbing was not required in Unit 400 
work was reasonable.  It also argues that any ambiguities were latent and that the 
government breached the implied warranty of the specifications and the covenant of 
good faith and fair dealing (app. br. at 37-42, 97-98)  The government argues Kallidus’ 
interpretation of the contract, that no underslab plumbing work was required in Unit 
400, is unreasonable and that the claimed amount is so grossly inflated that it 
undermines the credibility of the claim. 
 
Excavation Plumbing Appeal Partially Denied 
 
  We agree with the government that Kallidus’ interpretation of the contract that 
no underslab plumbing work was required in Unit 400 is unreasonable.  A contract 
should be construed to effectuate its spirit and purpose giving reasonable meaning to 
all of its parts.  Arko Exec. Servs., Inc. v. United States, 553 F.3d 1375, 1379 (Fed. Cir. 
2009).  Additionally, the Federal Circuit has further held that business contracts must 
be construed with business sense, “as they naturally would be understood by 
intelligent men of affairs.”  Giove v. Dep't of Transp., 230 F.3d 1333, 1341 
(Fed.Cir.2000) (citations omitted); Hol–Gar Mfg. Corp. 351 F.2d at 975  (It is 
elementary that the language of the “contract must be given that meaning that would 
be derived from the contract by a reasonable intelligent person acquainted with the 
contemporaneous circumstances.”).  See also H.B. Mac, Inc. v. United States, 153 F.3d 
1338, 1345 (Fed. Cir. 1998) (citing P.J. Maffei Bldg. Wrecking Corp. v. United States, 
732 F.2d 913, 917 (Fed. Cir. 1984)) (A proper technique of contract interpretation is 
for the court to place itself into the shoes of a reasonable and prudent contractor and 
decide how such a contractor would act in the circumstances). 
 
When the drawings are objectively considered in their entirety, we have no 
doubt that a reasonable and prudent construction contractor would view the contract as 
requiring underslab plumbing work in Unit 400.  Although the plumbing drawings do 
not include a layout of the sanitary and supply lines for Unit 400 as they do for Units 
100, 200 and 300, they do include notes and isometric schematics for both the supply 
and waste systems for Unit 400.  The structural drawings also indicate that plumbing 
lines are to be installed under the slab of Unit 400.  Adopting Kallidus’ interpretation 
of the contract requires that these be ignored and would result in men and women’s 
restrooms, complete with toilets and sinks, in Unit 400 because Kallidus does not 
argue or dispute the contract requires this above the slab plumbing work, but no water 
to supply them and no way to drain waste away.  We conclude that no reasonably 
prudent contractor would interpret the drawings as Kallidus would have it. 
 
Ideally, the plumbing drawings would have depicted the plumbing work 
required in Unit 400 in a fashion similar to that indicated for Units 100, 200 and 300, 
with which Kallidus takes no issue, but the government is not required to provide 

51 
 
perfect drawings, only reasonably accurate ones adequate for the task to be performed.  
John McShain, Inc. v. United States, 412 F.2d 1281, 1283 (Ct. Cl. 1969) (citing 
Standard Steel Car Co. v. United States, 67 Ct. Cl. 445, 472 (1929)).  We find the 
drawings are reasonably accurate and adequate for Kallidus to have performed the 
underslab work required in Unit 400.  If the lack of detail Kallidus complains about 
created an ambiguity, it was a patent ambiguity Kallidus was obligated to make 
inquiry about prior to bidding.  States Roofing Corp. v. Winter, 587 F.3d 1364, 1372 
(Fed. Cir. 2009) (citing H & M Moving, Inc. v. United States, 204 Ct. Cl. 696 (1974)); 
see also NVT Techs., Inc., 370 F.3d at1162 (“If the ambiguity is patent, it triggers a 
duty to inquire.”).  Accordingly, we deny the part of the claim relating to the alleged 
additional plumbing work. 
 
The saw-cutting part of the claim we sustain.  The evidence in the record is that 
Sketch Sk-3 changed the saw-cutting as depicted on drawing S.1.  There is no dispute 
that additional cutting and trenching work resulted from the sketch.  Although the 
government acknowledges same, it argues that Kallidus’ cost of performance actually 
decreased as a result of the change (gov’t br. at 131-32).  In this entitlement only 
hearing, we did not entertain evidence on quantum and do not consider the parties’ 
prefatory, not fully-developed arguments relating thereto.  The government’s rights to 
pursue its position during the quantum phase of this appeal are unaffected by this 
decision.    
 
Additional Concrete Removal 
 
Parties’ Positions 
 
Kallidus argues the contract drawings do not show a continuous footing in 
Units 200 and 400 and that the government changed the contract by requiring a 
continuous footing, which led to additional saw cutting and slab removal as well as 
additional forming work (app. br. at 42-47, 98-99).  The government argues the 
drawings clearly indicate a continuous footing (gov’t br. at 126-28). 
 
Appeal Denied 
 
This claim involves a question of contract interpretation.  Kallidus argues that 
because drawing S.1 does not show the wall studs below or above the windows, 
despite the fact that wall studs were required above and below the windows, that it 
need not remove the existing concrete slab below the windows and construct a new, 
reinforced footing in accordance with the Section 24 detail.  It argues the use of the 
word “continuous” in the detail means only that the rebar must be continuous within 
the footing in the part of the wall where there were no windows, i.e. it was not required 
to construct a new footing with rebar reinforcing in the wall area beneath the windows.  
We find Kallidus’ interpretation to be unreasonable.  “Continuous” as defined by 

52 
 
WEBSTER’S II, NEW RIVERSIDE UNIVERSITY DICTIONARY means “uninterrupted,” or 
“unbroken.”  Kallidus’ interpretation is the antithesis of this meaning as it interrupts or 
breaks the footing at each window.  The unreasonableness of Kallidus’ view is further 
supported by the fact that it is not possible to place the cross pieces of rebar six foot on 
center as required by the detail if the new, reinforced footing is not placed under the 
windows.  Kallidus’ interpretation would also require some sill anchors to be 
embedded in the original unreinforced slab to maintain the six foot on center 
requirement, which is not in accordance with the drawings, which have the sill anchor 
being embedded in the new footing with rebar reinforcement.  For these reasons 
Kallidus’ interpretation is unreasonable and deny the claim. 
 
Demountable Partitions 
 
Parties’ Positions 
 
Kallidus argues the government changed the contract by requiring it to provide 
and install components that were not required by the contract.  More specifically, 
Kallidus argues that it is not required to provide and install the components listed in 
the specifications because they were not depicted in the drawings (app. br. at 47-57, 
99-100).  The government argues that nothing more than what the contract provided 
was required and that to the extent the drawings do not depict the components listed in 
the specifications a patent ambiguity existed that required Kallidus to make inquiry 
(gov’t br. at 120-23). 
 
Appeal Denied 
 
We agree with the government that Kallidus was not required to perform 
additional work and deny the claim.  Kallidus’ interpretation of the contract is 
unreasonable.  As noted above with respect to the Excavation Plumbing and the Cable 
Tray claims, the contract must be read as a whole and meaning given to all of its 
provisions whenever possible.  While the drawings could have been better and shown 
all of the components to be installed as was done with respect to other projects 
Kallidus has been involved in, the specifications list everything the government 
required Kallidus to provide and install.  The contract incorporated the Specifications 
and Drawings For Construction clause (FAR 52.236-21), which states that “Anything 
mentioned in the specifications and not shown on the drawings, or shown on the 
drawings and not mentioned in the specifications, shall be of like effect as if shown or 
mentioned in both.” and “[I]n case of difference between drawings and specifications, 
the specifications shall govern” (finding 78).  Given this clause, it is evident that all 
the components listed in the specifications that Kallidus argues are additional work 
were clearly and unambiguously required by the contract.  GEMS Environmental 
Management Services, ASBCA No. 61737 et al., 24-1 BCA ¶ 38,621 at 187,743-44.   
 

53 
 
Paint Window Trim And Walls Appeal 
 
Parties’ Positions 
 
Kallidus asserts the government required it to keep the building’s temperature 
higher than was required by the specifications, which caused the paint to chip and 
crack, entitling it to recover the cost of repairing the damage (app. br. at 60-66, 
101-02).  The government agrees that high temperatures caused the cracking of the 
paint, etc., but denies that it required Kallidus to raise the temperature beyond 
directing Kallidus to achieve the minimum temperatures required by the specifications 
(gov’t br. at 123-26). 
 
Appeal Denied 
 
Despite Kallidus’ assertions about the government’s misinterpretation of the 
specifications regarding the temperature, it is not necessary to parse the specifications 
to decide this claim.  Nor is it necessary to determine whether Kallidus was in 
compliance therewith, as it asserts.  Instead, this claim can be decided solely by 
determining whether the government ordered Kallidus to raise the temperature of the 
building to a point that caused the cracking and other damage that Kallidus repaired 
and seeks compensation for. 
 
The record does not support such a finding.  The evidence is that the 
government was concerned about the building temperature being lower than the 
minimum temperatures set forth in the specifications and issued a cure notice to 
Kallidus to ensure Kallidus complied with the specifications.  In response to the cure 
notice, Kallidus chose to raise the temperature inside the building to the temperature 
the parties agree caused the damage to the paint and trim.  Kallidus was free to comply 
with the temperature requirements of the specifications however it saw fit to do so.  
This was something entirely within its discretion.  Having caused the damage, it is 
Kallidus’ responsibility pursuant to the Permits and Responsibilities clause to repair it 
at no cost to the government.  Phylway Construction, LLC, ASBCA No. 63705, 25-1 
BCA ¶ 38,759 at 188,398 (citing Joseph Becks & Assocs., Inc., ASBCA No. 31126, 
88-1 BCA ¶ 20,428 at 103,326, aff'd, 864 F.2d 150 (Fed. Cir. 1988).  Accordingly, we 
deny this claim. 
 
Parapet Wall 
 
Parties Positions 
 
We understand Kallidus’, a pro se litigant, various scattershot arguments made 
with regard to the parapet wall to be that it performed its work in accordance with the 
contract’s requirements and that the government constructively changed the contract 

54 
 
by requiring Kallidus to retain a consulting engineer in order to establish it was not at 
fault for the blistering of the elastomeric coating.  Kallidus also argues the contracting 
officer abused her discretion by failing to release the retainage.  The government 
argues Kallidus failed to comply with the specifications and let water into the building 
and the construction materials, which caused the blistering and that its continued 
withholding of the retainage is justified. 
 
Appeal Upheld 
 
The basis for the government’s denial of the claim was Kallidus’ failure to 
install weep holes at the base of the parapet wall, but in testimony elicited during the 
hearing and in its post-hearing brief, the government appears to take a more expansive 
approach, intimating that Kallidus failed to protect the work during construction, 
which introduced water into the structure causing the blistering and calcification (gov’t 
br. at 79).  The government also argues that Kallidus’ work was defective in violation 
of the Warranty of Construction clause (id. at 134-36).   
 
We find the government’s arguments unpersuasive.  While not explicitly stating 
so, the government appears to be arguing Kallidus’ failure to install weep holes and to 
keep the structure completely dry during construction constitute defective work.  
  
Despite the government’s contentions, we find the contract does not require the 
installation of weep holes at the base of the parapet wall.  The contract only requires 
the installation of weep holes above flashing, which the COR testified was not present 
at the parapet wall.  Furthermore, because the parapet wall is a single course of CMU, 
not a cavity wall with brick facing from which water can “weep” or be drained we 
conclude, based on the record, that a reasonable contractor would not be expected to 
install weep holes in the absence of a specific contractual requirement.  For these 
reasons we hold the contract did not require weep holes to be installed in the parapet 
wall.  Accordingly, Kallidus cannot be faulted for having failed to install weep holes. 
 
This leaves the issue of whether Kallidus can be faulted for having failed to 
keep the structure completely dry during construction.  The government cited to no 
contract provisions requiring that the structure be kept completely dry.  The 
specifications regarding the roof do include some references to moisture and wetness, 
but we find these merely require that the structure’s surfaces be dry during certain 
aspects of the replacement of the roof (SOF ¶ 104).  No evidence was presented to 
establish that Kallidus violated these provisions and, as discussed immediately below, 
the burden of proof here is on the government. 
 
To be sure, the contract included the Material and Workmanship, and Permits 
and Responsibilities and Protection of Existing Vegetation, Structures, Equipment, 
Utilities, and Improvements clauses.  These clauses require that the work be performed 

55 
 
in a workmanlike manner and to exercise reasonable care to protect the work and 
existing structures, which we understand the government is contending Kallidus failed 
to do although its brief seems to abandon these arguments.  Nevertheless, even if these 
arguments were explicitly advanced by the government, they would fail. 
 
These clauses do not impose strict liability upon a contractor; rather, the burden 
of proof is on the government to show that Kallidus was at fault or negligent or failed 
to exercise reasonable care.  States Roofing Corp., ASBCA No. 55500, 09-1 BCA 
¶ 34,036 at 168,349 (citing Zimcon Pros., ASBCA Nos. 49346, 51123, 00-1 BCA 
¶ 30,839 at 152,214; J.A.K. Constr. Co., ASBCA No. 43099, 94-1 BCA ¶ 26,536 
at 132,074).  However, the government introduced no evidence that Kallidus’ means 
and methods of repairing the concrete decks of Unit 300 and constructing the parapet 
wall, particularly keeping the decks and construction materials dry and free from water 
infiltration, either violated the contract or building industry norms.  The evidence 
establishes Kallidus deployed tarps to keep the construction and materials dry.  
Though there is anecdotal evidence through photographs that they may not have 
always kept water from collecting on the roofs after a storm, there was no evidence 
presented that Kallidus was careless or negligent with respect to the tarps or 
in allowing rain water to infiltrate the building, or that this occurred more than once.  
Mr. Hunsicker testified that it would be unrealistic and unreasonable to expect a 
contractor to keep an exterior roof completely dry throughout demolition and 
reconstruction.  Mr. Blair testified that Kallidus was required to protect all the work all 
the time without further elaboration.  We understand from the context of the 
questioning that Mr. Blair was of the opinion that Kallidus was required to keep the 
roof completely dry at all times.  Both men were accepted as experts, but we find 
neither’s testimony on this issue particularly helpful given that there was no discussion 
or other evidence of industry practices for circumstances similar to those presented 
here.  Without more, we find the government failed to meet its burden of proving that 
Kallidus failed to exercise reasonable care or was negligent with respect to its efforts 
to keep the roof dry.  
 
We consider next whether Kallidus has met its burden in establishing that the 
government constructively changed the contract with respect to the consulting 
engineer Kallidus retained to assist in determining the source of the leaks.  The 
elements of a constructive change claim are:  (1) work performed beyond the contract 
requirements, and (2) the additional work was expressly or impliedly ordered by the 
government.  AMEC Env’t & Infrastructure, 15-1 BCA ¶ 35,924 at 175,593 (citing 
Bell/Heery, 739 F.3d at 1335.  See also Ace Constructors, Inc. v. United States, 499 
F.3d 1357, 1361 (Fed. Cir. 2007); Int'l Data Prods. Corp. v. United States, 492 F.3d 
1317, 1324 (Fed. Cir. 2007).  We find Kallidus has not satisfied these elements.  There 
is no requirement in the contract for the retention of the engineering firm Kallidus 
hired to establish its work was not defective with respect to the parapet wall and 
roofing work the government alleged was defective.  Despite Kallidus’ argument that 

56 
 
it was essentially forced to retain the consultant in order to recover the retainage and 
that the government had agreed to pay for same, there is no evidence in the record that 
the government actually agreed to do so.  It is true Kallidus made this proposition to 
the government several times, but the government never responded, at least there is no 
evidence that it did so.  Moreover, Kallidus always had a choice: it could have 
declined to obtain an expert and filed a claim as it ultimately did.  Accordingly, we 
conclude that the government never agreed to pay for the consultant and deny this part 
of the parapet wall claim. 
 
Simpson Ties-Appeal Denied 
 
We need not discuss the merits of this claim because it was untimely asserted 
and is barred by the statute of limitations.  The Federal Acquisition Regulation states 
that a claim accrues “ . . . when all events, that fix the alleged liability of either the 
Government or the contractor and permit assertion of the claim, were known or should 
have been known.”  FAR 33.201, DEFINITIONS (OCT 2024).  See also Anis Avasta 
Constr. Co., ASBCA No. 61926, 20-1 BCA ¶ 37,743 at 183,164.  The Contract 
Disputes Act, 41 U.S.C. §§ 7101-7109 (CDA) includes a six-year statute of 
limitations.  41 U.S.C. §7103(a)(4)(A).  In this appeal, Kallidus knew all that it needed 
to know to assert its claim when the government supplied it with the correct Simpson 
tie model number.  This was no later than March 1, 2012, when the government 
finished responding to Kallidus’ RFIs regarding the misinformation concerning the ties 
(SOF ¶ 136).  Accordingly, its claim was timely if asserted prior to March 1, 2018.  
The CDA statute of limitations bars claims that were not presented to the contracting 
officer within the defined period.  Lockheed Martin Aeronautics Co., ASBCA 
No. 62209, 21-1 BCA ¶ 37,891 at 184,025 (citing Environmental Safety Consultants, 
Inc., ASBCA No. 58343, 14-1 BCA ¶ 35,681 at 174,666).  It is undisputed Kallidus 
did not present the claim to the government until January 31, 2019 (SOF ¶ 138).  
Untimeliness is an affirmative defense that generally is waived if not pleaded as 
required by the Board’s rules and the Federal Rules of Civil Procedure.  Board 
Rule 6(b); F
ED. R. CIV. P. 8(c).  The government never addressed the Simpson ties in 
its answer in ASBCA No. 61377 and never filed an answer in ASBCA No. 61976. 19 
Accordingly, the government has failed to include the affirmative defense of 
untimeliness in its pleadings. 
 
This failure does not necessarily bar the government from asserting the defense 
though.  We have held that failure to plead an affirmative defense does not always 
result in waiver.  CiyaSoft Corp., ASBCA No. 59913-Quan, 22-1 BCA ¶ 38,145 
at 185,276 (citing Ultra-Precision Mfg., Ltd. v. Ford Motor Co., 411 F.3d 1369, 1376 
 
19 An important piece of context for this is that the hearing was held on April 26, 2019, 
slightly more than a month after the March 8, 2019 submission of the 
complaint. 

57 
 
(Fed. Cir. 2005)).  The purpose of Federal Rules of Civil Procedure, Rule 8(c) and 
ASBCA Rule (6)(b) is to give a party notice of the defense and a chance to respond.  
The Federal Circuit Court of Appeals found that the district court in the decision it was 
reviewing had not committed error by permitting an unpled affirmative defense to be 
asserted in a motion for summary judgment because the opposing party had had the 
opportunity to respond and brief the issues so there was no unfairness or prejudice.  
Ultra Precision, 411 F.3d at 1376-77.  Here, the defense of untimeliness was first 
mentioned in the contracting officer’s final decision as one of the bases for denying the 
claim (SOF ¶ 138).  Kallidus cannot argue that it was unaware of the government’s 
assertion and thus prejudiced by the government’s failure to have pled it.  The 
government again argued the claim was untimely in its brief (gov’t br. at 140-41).  
Despite being aware of the issue and having had an opportunity to respond in its own 
briefing, Kallidus never did so.  We find the claim to be untimely, barred by the 
CDA’s statute of limitations, and deny it. 
 
CONCLUSION 
 
The Windows, and Windows Time Extension claims are sustained.  The 
Excavation Plumbing and Unreleased Retainage and Parapet Wall claims are partially 
sustained as set forth above.  Accordingly, these matters are returned to the parties for 
a determination of quantum consistent with this decision.  The Cable Tray, Additional 
Concrete Removal, Demountable Partitions, Paint Trim and Walls and Simpson Ties 
claims are denied. 
 
 Dated:  December 18 , 2025 
 
 
 
 
 
 
 
 
 
 
 
CHRISTOPHER M. MCNULTY 
Administrative Judge 
Armed Services Board 
of Contract Appeals 
I concur 
 
 
 
OWEN C. WILSON 
Administrative Judge 
Acting Chairman 
Armed Services Board 
of Contract Appeals 
 I concur 
 
 
 
 J. REID PROUTY 
Administrative Judge 
Vice Chairman 
Armed Services Board 
of Contract Appeals 

58 
 
 
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. 61377, 61976, Appeals of 
Kallidus Technologies, rendered in conformance with the Board’s Charter. 
 
Dated:  December 18, 2025 
 
 
 
 
 
 
 
 
PAULLA K. GATES-LEWIS 
Recorder, Armed Services 
Board of Contract Appeals