GRANTED IN PART:  March 22, 2007 
CBCA 50 
TIDEWATER CONTRACTORS, INC.,
                                                   Appellant, 
v. 
DEPARTMENT OF TRANSPORTATION,
                                                        Respondent. 
Joseph A. Yazbeck, Jr., of Yazbeck, Cloran & Hanson, LLC, Portland, OR, counsel 
for Appellant.  
David Sett, Division Counsel, Federal Highway Administration, Lakewood, CO, 
counsel for Respondent. 
Before Board Judges STERN , FENNESSY , and SOMERS . 
SOMERS , Board Judge. 
This appeal arose from a contract between appellant, Tidewater Contractors, Inc. 
(Tidewater), and the Department of Transportation, Federal Highway Administration 
(FHA), for road work in the Mad River area of Northern California.  Appellant alleges that 
it is entitled to an eighty-nine day extension of the contract completion date because the 
Government failed to issue a notice to proceed in a timely fashion.  We find that the 
appellant has established entitlement to a thirty-one day extension of the contract completion 
date.  The remainder of the extension sought in the appeal is denied.  

 
     
 
      
    
  
    
         
 
   
 
     
   
 
     
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Background 
On November 23, 2003, the FHA awarded a contract to Tidewater to perform road 
work in the Mad River area of Northern California.  Tidewater executed the contract and 
timely submitted the required performance and payment bonds.  Joint Pretrial Statement, 
Stipulated Fact No. 3.  
Under the contract, work could begin after the contractor received the notice to 
proceed:  
52.211-10 Commencement, Prosecution and Completion of 
Work (Apr 1984) – Alternate I (Apr 1984). 
The Contractor shall be required to (a) commence work under 
this contract within 10 calendar days after the date the 
Contractor received the notice to proceed . . . . The completion 
date is based on the assumption that the successful offeror will 
receive the notice to proceed by the 70
th day following the bid 
opening. The completion date will be extended by the number 
of calendar days after the above date that the Contractor 
receives the notice to proceed, except to the extent that the 
delay in issuance of the notice to proceed results from the 
failure of the contractor to execute the contract and give the 
required performance and payment bonds within the time 
specified in the offer. 
48 CFR 52.211-10 (2005) (FAR 52.211-10); Appeal File, Exhibit 1; Joint Pretrial Statement, 
Stipulated Fact No. 6.  Thus, the contract required the Government to issue a notice to 
proceed by January 9, 2004, i.e., the seventieth day following the bid opening on October 
30, 2003.  Section 108 of the contract stated that “a preconstruction conference will be held 
after the contract is awarded and before beginning work. . . . [T]he notice to proceed must 
be issued before the commencement of any work.”  
The contract incorporated FP-96, Standard Specifications for Construction of Roads 
and Bridges on Federal Highway Projects, supplemented by the Special Contract 
Requirements (SCRs).   Appeal File, Exhibit 1; Joint Pretrial Statement, Stipulated Fact No. 
8.  The contract addressed preconstruction conferences as follows: 
PRECONSTRUCTION CONFERENCE (FEB 1995) 

  
  
  
    
 
  
 
    
  
  
     
     
 
 
 
  
 
 
   
               
3 CBCA 50 
If the Contracting Officer decides to conduct a preconstruction 
conference, the successful offeror will be notified and will be 
required to attend.  The Contracting Officer’s notification will 
include specific details regarding the date, time, and location of 
the conference, any need for attendance by subcontractors, and 
information regarding the items to be discussed.    
FAR  52.236-26;  Appeal File, Exhibit 1; Joint Pretrial Statement, Stipulated Fact No. 7. 
On December 4, 2003, Ed Hansen, the FHA Project Engineer and Contracting 
Officer’s Technical Representative, met with representatives from Tidewater at the project 
site.  One month later, on January 5, 2004, Gene Dodd, FHA Construction Operations 
Engineer, called Scott Fitzhugh of Tidewater to schedule a preconstruction conference. 
Transcript at 137. He faxed Fitzhugh a list of items to be submitted or discussed during the 
preconstruction meeting.  The list required Tidewater to submit, among other things, a 
proposed schedule, a written quality control plan, an equal employment opportunity (EEO) 
policy, a document detailing the names and signatures of company officials and 
representatives authorized to sign project documents, and a proposed schedule for 
accomplishing temporary and permanent erosion control work.  Foley Construction, a 
subcontractor, initially prepared the written quality control plan required under the contract. 
Transcript at 112.    
Also on January 5, the contracting officer sent a letter to Tidewater, which stated: 
In accordance with your Contract . . . you are hereby directed 
to begin off-site construction operations on January 7, 2004. 
Off-site construction operations are operations not  performed 
within the construction limits of the subject project.  A Notice 
to Proceed for on-site operations will be issued after a 
scheduled preconstruction conference has been conducted, and 
after all required submittals have been received and approved. 
Appeal File, Vol. 7, Exhibit 2. The letter stated that the project should be completed by 
August 10, 2005.  Id.  The contracting officer did not designate this letter as a “notice to 
proceed”; however, below the contracting officer’s signature, the letter included the 
following:   
I acknowledge the above Notice to Proceed date 

 
 
       
     
  
  
    
   
 
  
    
 
   
 
  
 
 
 
 
 
 
 
4 CBCA 50 
Date: ____________________________
 
By:  _____________________________
 
Title: _____________________________
 
Id.  Fitzhugh, the project manager, acknowledged receipt of the letter on January 6, 2004. 
Id.  
After coordinating the date for the preconstruction conference with representatives 
from the Government, representatives from the contractor, and various county and national 
forest officials, FHA scheduled the preconstruction conference for February 5, 2004. 
Appellant’s Exhibit 8. Under the terms of the contract, no work could begin before the 
preconstruction conference.  Transcript at 200.  
At the February 5, 2004, preconstruction conference, Tidewater submitted a copy of 
Tidewater’s EEO policy, safety plans, and a traffic control plan.  Appeal File, Exhibit 10. 
Fred Foley, Tidewater’s quality control subcontractor, presented a draft quality control plan 
to the Government.  Appellant’s Exhibit 9; Respondent's Exhibit 2; Transcript at 52-53. 
Tidewater brought a draft preliminary construction schedule to the meeting for discussion. 
Transcript at 54; Appellant’s Exhibit 9.  Tidewater’s preliminary construction schedule 
anticipated that the Government would issue the notice to proceed on February 9, 2004.  Id. 
The parties did not discuss the Government’s letter issued on January 5, 2004. 
Based upon the discussions at the pretrial conference, Tidewater became aware that 
the notice to proceed would not be issued on February 9.  Transcript at 53-54.  At the 
hearing in this case, Fitzhugh testified that he believed that the notice would not be issued 
on the date originally projected because, among other things, Hansen advised them that the 
office would be closed for two weeks, from the last week of February until the first week 
in March, while Hansen attended a training course in Denver, Colorado.  Id.  Fitzhugh 
concluded that Hansen would inform them when the Government planned to issue the notice 
to proceed, at which time Tidewater would update and submit a final preconstruction 
schedule prior to the issuance of the notice.  Id.  
By letter dated February 20, 2004, Hansen confirmed that his office would be closed 
from Monday, February 23, through Friday, March 5, 2004.  Appellant Exhibit 26.  The 
letter stated that Hansen would be in Denver, Colorado, and would be unavailable at the 
project site.  Id.  However, Hansen provided contact information should the contractor have 
any submittals to be reviewed.  Id.  Finally, Hansen stated:  
There are still numerous submittals required prior to beginning 
any  work on the project.  Upon receipt of the required 

     
     
  
  
      
 
 
  
   
    
 
         
  
   
   
  
  
5 CBCA 50 
submittals, they will be reviewed and responded to in a timely 
manner. After all submittals required have been approved, you 
will be issued an on-site “Notice to Proceed.”  Until that time 
no work will be permitted on the project.   
Appellant’s Exhibit 26.    
On March 1, 2004, Hansen called Fitzhugh and told him that “after preliminary 
review of his Quality Control Plan it would be best if he did not plan any work next week 
because of deficiencies in his plan.  I told him that I would try to get a response out this 
week so that he can begin working on corrections or additions to the QC [quality control] 
plan as well as to other submittals.”  Appellant’s Exhibit 5. 
Hansen sent Tidewater a letter on March 4, 2004, identifying several deficiencies in 
the quality control plan.  Respondent’s Exhibit 6; Transcript at 102, 209.  For example, 
Hansen felt that Tidewater’s quality control plan did not adequately document the 
qualifications of inspection personnel.  Respondent’s Exhibit 6.  He explained that the 
quality control plan should not include references to safety, traffic control, supervision, 
erosion control, or the persons responsible for implementing those plans.  Id.  Hansen stated 
that the plan failed to adequately address subcontractors.  Id.  Hansen concluded:   
You have much to do to correct deficiencies in your Quality 
Control Plan.  When you resubmit the plan, submit several 
copies so that they can be distributed to all personnel approved 
to participate in the implementation of the plan. . . . No work 
will begin until this plan is approved since quality control 
begins with construction sign installation and ends with 
removal of these devices after completion of all work.  
Respondent’s Exhibit 6 at 2.  
On March 16, 2004, Hansen returned the first draft of the quality control plan with 
his edits.  Hansen remarked that “with corrections, this is acceptable for preparatory, startup 
and production phases of QC plan. This was draft QC plan given to me at the precon by 
Fred.”  Respondent’s Exhibit 7; Transcript at 213-14. 
On March 19, 2004, Tidewater revised its quality control plan and told Hansen that 
Tidewater wished to set up a pre-survey meeting as soon as possible.  Hansen returned the 
revised quality plan with a memorandum on March 22, 2004, stating that the quality control 
plan needed additional revisions.  Hansen noted that only two of the proposed quality 

 
  
 
   
     
   
 
  
  
 
  
     
            
   
   
       
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control personnel met the required experience and training requirements and that the plan 
failed to address device maintenance and maintenance of the roadway for traffic.  In 
addition, Hansen proposed some stylistic changes.  Respondent’s Exhibit 9; Transcript at 
216.  
On the next day, March 23, 2004, Tidewater submitted a response to Hansen’s 
comments and a revised quality control plan. Respondent’s Exhibit 10; Transcript at 216­
17. In response to Hansen’s comments, Tidewater explained that it planned to revise the 
plan at different stages as the project progressed.  Respondent’s Exhibit 10.  Tidewater 
disagreed with Hansen’s statement that the superintendent could not be part of the quality 
control system, and indicated that Tidewater intended to assign other persons in addition to 
the superintendent to perform quality control.  Id.  Tidewater also clarified sections that 
Hansen found problematic, stating, in the final paragraph:    
Hopefully this will clear up most of the issues that are holding 
up acceptance of the plan so that we can get started.  I think 
that once we are on the project and in contact we will be able 
to make necessary changes and needed addendums that will be 
required to successfully complete the project. . . . 
Id. 
On that same day, in a written response, Hansen expressed his disagreement with 
some of Tidewater’s explanations of its plan.  Respondent’s Exhibit 11. However, Hansen 
did not reject the revised plan.  He stated:  
We should meet as soon as possible so that we can formalize 
the QC plan, review what is missing or needs clarification in 
your erosion control plan, and meet with the surveyors prior to 
their work beginning. 
Id. 
On April 5, 2004, Hansen, Fitzhugh, and Jason Labonte, another Tidewater 
representative, met to discuss final corrections to the quality control plan. Fitzhugh told 
Hansen that he expected that there would be at least two weeks of surveying before the 
contractor would disturb the ground.  Respondent’s Exhibit 14. Fitzhugh returned to the 
FHA office trailer with additional revisions to the QC plan later that day.  Id .  The 
Government issued a Notice to Proceed on April 5, 2004. Appeal File, Vol. 2, Exhibit 2. 

  
    
 
 
 
 
 
    
 
   
    
  
   
   
    
7 CBCA 50 
On April 6, Hansen compiled the various revisions to the quality control plan and 
approved the document. Respondent’s Exhibits 12, 14.  After meeting with the surveyors 
on April 7, Tidewater began work on the project.  Appellant’s Exhibit 5.   
By letter dated August 31, 2004, the Government notified Tidewater that Tidewater 
had failed to fulfill various contract requirements.  Appeal File, Vol. 7, Exhibit 7.  For 
example, citing subsection 152.03(c), the Government stated that Tidewater had failed to 
complete all slope, clearing, and grubbing staking by close of business on July 4, 2004, as 
required by the contract.  Id.  In addition, the Government stated that Tidewater had failed 
to stabilize a portion of the roadwork.  Id. 
On August 8, 2005, Tidewater alleged that the Government did not issue its notice 
to proceed until eighty-eight days after the seventieth calendar day following bid opening, 
contrary to contract requirements.  Appeal File, Vol. 3.  Tidewater requested that the 
Government extend the contract for eighty-nine days, until November 6, 2005.  Id.  The 
contractor asked the Government to issue a final decision on its request.  Id.  
The contracting officer issued her final decision by letter dated August 12, 2005. 
Appeal File, Vol. 4.  The contracting officer asserted that the Government issued an off-site 
notice to proceed on January 5, 2004, which included a statement that the project completion 
date was August 10, 2005.  Id .  The contracting officer noted that Tidewater had not 
objected to the notice to proceed at the time.  Id.  The contracting officer denied the 
contractor’s request to extend the contract completion date based upon an untimely issuance 
of the notice to proceed.  Id. 
This appeal followed. 
Additional Relevant Contract Clauses 
In addition to the various contract clauses cited above, the contract incorporated, by 
reference, FAR 52.242.14 (April 1984), which states:  
As prescribed in 42.1305(a), insert the following clause in 
solicitations and contracts when a fixed price construction or 
architect-engineer contract is contemplated:  
SUSPENSION OF WORK (APR 1984) 
(a) The Contracting Officer may order the Contractor, in 
writing, to suspend, delay, or interrupt all or any part of the 

  
 
 
 
 
     
 
   
 
        
 
 
 
 
  
8 CBCA 50 
work of this contract for a period of time that the Contracting 
Officer determines appropriate for the convenience of the 
Government.  
(b) If the performance of all or any part of the work is, 
for an unreasonable period of time, suspended, delayed, or 
interrupted (1) by an act of the Contracting Officer in the 
administration of this contract, or (2) by the Contracting 
Officer’s failure to act within the time specified in the contract 
(or within a reasonable time if not specified), an adjustment 
shall be made for any increase in the cost of performance of 
this contract (excluding profit) necessarily caused by the 
unreasonable suspension, delay, or interruption, and the 
contract modified in writing accordingly.  However, no 
adjustment shall be made under this clause for any suspension, 
delay, or interruption to the extent that performance would have 
been so suspended, delayed, or interrupted by any other cause, 
including the fault or negligence of the Contractor, or for which 
an equitable adjustment is provided for or excluded under any 
other term or condition of this contract.  
FAR 52.242-14. 
The contract incorporated FP-96, which supplements FAR clause 52.202-1 with 
subsection 101.04, entitled Definitions.  FP-96 defines the following:  
Contract Time – the specified time allowed for completion of 
all contract work. 
Notice to Proceed – Written notice to the Contractor to begin 
the contract work. 
Work – The furnishing of all labor, material, equipment, and 
other incidentals necessary to successfully complete the project 
according to the contract.  
Pursuant to FP-96, section 108.01 stated that a preconstruction conference will be 
held after the contract is awarded and before the notice to proceed would be issued.  In 
accordance with section 153.02, the contractor could not begin work until the quality control 
plan covering the work was accepted.  Chapter 7 of the Department of Transportation’s 

  
 
 
 
  
  
 
   
    
 
      
 
      
9 CBCA 50 
Federal Lands Highway Construction Manual (Manual) provides guidelines for the 
preparation of quality control plans.  These guidelines address the content of a contractor’s 
quality control plan.  In the section entitled “Acceptance of the QCP [Quality Control 
Plan],”  the Manual states:  
The plan is accepted based on whether it addresses the 
requirement of the contract, not whether the agency official 
accepting it believes it is comprehensive enough to ensure 
quality . . . .  QC plans are typically conditionally  approved, 
based on the contractor’s ability to demonstrate that required 
contract compliance can be, and is achieved.  It is not possible 
for the agency approving official to determine prior to 
construction whether the QC plan will, or is likely to yield 
acceptable quality work. . . . Generally, it is better to accept a 
marginal plan and assertively monitor the quality of the 
resulting construction, than to delay the start of work while 
arguing over the details of the plan. 
Appellant’s Exhibit 22; Manual ¶ 7-23 
Summary of Arguments 
One of the issues presented by the parties is whether the contract, the Federal 
Acquisition Regulation, or any other applicable regulations authorized the Government to 
issue an off-site notice to proceed, followed by a separate notice to proceed with work on 
site. The Government asserts that FAR 1.102-4(e) permits it to create the two-step notice 
to proceed process. 
Appellant contends that the contract specifically required that, before the 
Government could issue the notice to proceed, the Government must approve various 
submittals, which did not occur. In addition, the contract did not authorize the issuance of 
an “off-site” notice to proceed.  Because final approval of the submittals did not occur until 
April 5, 2004, appellant asserts that it is entitled to an extension of the completion date from 
the seventieth day following the bid opening until the date that the Government issued the 
second notice to proceed. Accordingly, appellant seeks an extension of time of eighty-nine 
days.  
In response, the Government asserts that, even if the Board finds that the Government 
had no basis for issuing an “off-site” notice to proceed, the appellant’s submission of 
inadequate submittals delayed the process.  Accordingly, the Government contends that 

 
   
 
  
      
   
 
 
     
 
 
 
  
 
        
   
 
    
10 CBCA 50 
because the appellant caused the delay, it is not entitled to an extension.  Appellant 
disagrees, contending that the Government’s improper failure to approve its submissions 
caused the delay.  
Discussion 
I. The Issuance of the Notice to Proceed  
The first issue to be addressed is whether the contract permits the Government to 
issue an “off-site” notice to proceed before the preconstruction conference and prior to 
approving the required submittals. In order to resolve this issue, this Board must identify 
and apply “principles of general contract law.”  Franconia Associates  v. United States , 536 
U.S. 129, 141 (2002) (quoting Priebe & Sons, Inc. v. United States ,  332 U.S. 407, 411 
(1947)).  The starting point for interpreting a contract invariably is the “plain language” of 
the agreement.  McAbee Construction, Inc. v. United States , 97 F.3d 1431, 1435 (Fed. Cir. 
1996).  As the United States Court of Appeals for the Federal Circuit has stated: 
We give the words of the agreement their ordinary meaning 
unless the parties mutually intended and agreed to an 
alternative meaning. In addition, we must interpret the contract 
in a manner that gives meaning to all of its provisions and 
makes sense. 
Jowett, Inc. v. United States , 234 F.3d 1369, 1372 (Fed. Cir. 2002). 
When the terms of a contract are clear and unambiguous, there is no need to resort 
to extraneous circumstances for its interpretation.  See Sea-Land  Service , Inc. v. United 
States , 553 F.2d 651, 658 (Ct. Cl. 1977), cert. denied , 483 U.S. 1012 (1978).  The plain 
reading of a contract term is “the meaning derived from the contract by a reasonably 
intelligent person acquainted with the contemporary circumstances.”  Firestone Tire & 
Rubber Co. v. United States , 444 F.2d 547 (Ct. Cl. 1971).  A written agreement is 
ambiguous only when a plain reading of the contract could result in more than one 
reasonable interpretation.  Metric Constructors, Inc. v. National Aerouautics & Space 
Administration, 169 F.3d 747, 751 (Fed. Cir. 1999). It is not enough that the parties differ 
in their interpretation of the contract clause.  See Community Heating & Plumbing Co. v. 
Kelso , 987 F.2d 1575, 1578 (Fed. Cir. 1993). Nor may outside evidence be brought in to 
create an ambiguity where the language is clear.  Interwest Construction v. Brown , 29 F.3d 
611, 615 (Fed. Cir. 1994). 

 
 
  
 
  
 
      
 
 
 
       
    
     
 
 
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The contract required the Government to issue its notice to proceed by the seventieth 
day following bid opening, i.e., by January 8, 2004.  Section 108 of the contract stated that 
“a preconstruction conference will be held after the contract is awarded and before 
beginning work. . . .  [T}he notice to proceed must be issued before the commencement of 
any work.”  Section 108.01 of FP-96 stated that a preconstruction conference would be held 
after the contract was awarded and before the notice to proceed was issued.  
The Government asserts that the January 5, 2004, notice to proceed met the contract 
requirements under FAR 1.102-4(e).   This provision, which is included in the section 
entitled “Role of the acquisition team,” states: 
The FAR outlines procurement policies and procedures that are 
used by members of the Acquisition Team.  If a policy or 
procedure, or a particular strategy or practice, is in the best 
interest of the Government and is not specifically addressed in 
the FAR, nor prohibited by law (statute or case law), Executive 
order or other regulation, Government members of the Team 
should not assume it is prohibited. Rather, absence of direction 
should be interpreted as permitting the Team to innovate and 
use sound business judgment that is otherwise consistent with 
law and within the limits of their authority.  Contracting 
officers should take the lead in encouraging business process 
innovations and ensuring that business decisions are sound. 
FAR 1.102-4(e).  However, pursuant to the terms of the clause, FAR clause 1.102-4 applies 
only when the “procedure . . . is in the best interest of the Government and is not specifically 
addressed in the FAR.”  In this case, however, the FAR specifically addresses the issuance 
of a notice to proceed.  See, e.g. , FAR 11.404(b) (referencing FAR 52.211-10).  Therefore, 
FAR clause 1.102-4 does not apply in this situation.  
Ignoring the contractual requirement that a notice to proceed could only be issued 
after the contract was awarded and after the preconstruction conference, the Government 
asserts that Tidewater is not entitled to additional time because it could have started work 
after receiving the “off-site” notice to proceed.  Respondent’s Motion for Summary 
Judgment, Attachment 1, Declaration of Gene Dodd (Mar. 27, 2006).  For example, 
according to Mr. Dodd, Tidewater could have begun crushing aggregate base, stocking 
standard lengths of piper, or pre-manufacturing bridge deck units, among other things. 
Transcript at 156-57.  

 
   
 
    
   
 
        
     
 
    
         
    
   
  
 
  
 
  
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The Government’s argument is inconsistent with its own correspondence.  The 
Government’s letter of February 20, 2004, expressly stated that no work would be permitted 
on the contract prior to approval of all submittals.  Appellant’s Exhibit 26.   In a second 
letter dated March 22, 2004, the Government stated that “any notice to proceed that may be 
issued upon approval of the QC Plan and receipt of a revised preliminary construction 
schedule will not allow for ground disturbing activities.”  Appellant’s Exhibit 18.  Thus, on 
at least two occasions subsequent to the issuance of the alleged “off-site notice to proceed,” 
the Government expressly advised Tidewater that it could not start work at that time. 
In any event, the evidence supports Tidewater’s contention that it could not have 
begun work after receiving the “off-site” notice to proceed. Tidewater’s witnesses testified 
that surveying is required as one of the first steps for projects of this type, and that surveying 
occurred on site.  Transcript at 18, 56-57, 159, 238-41.  In addition, the contract required 
field verification of all installed materials. Transcript at 80-81. Thus, Tidewater could not 
pre-order crushed aggregate because Tidewater would be purchasing the aggregate from 
another party and the aggregate required on-site verification and testing.  Id.  at 80-81, 119­
21, 130-31. 
The contract specifications called for the Government to give Tidewater the notice to 
proceed within a specified period of time.  It is clear from the facts that the Government did 
not comply with the provision.  While it is true that the Government purported to give 
Tidewater a notice to proceed by issuing what it deemed to be an “off-site” notice to proceed 
on January 5, 2004, the Government issued this letter before the preconstruction conference 
and prior to the Government approving any of the prerequisite submittals. Accordingly, we 
find that the letter issued on January 5, 2004, did not fulfill the requirements for a notice to 
proceed as required by the terms of the contract.  
II. Government Delay 
Next, we turn to the issue of whether the Government unreasonably delayed 
appellant’s progress by failing to issue the notice to proceed until April 5, 2004.  Tidewater 
asserts that the Government delayed its performance for eighty-nine days by rejecting 
Tidewater’s quality control plan for non-material deficiencies and by failing to respond to 
Tidewater’s submissions in a timely manner.  The Government disagrees and argues that 
Tidewater’s submissions did not meet contract requirements. 
As noted previously, the contract contained the Suspension of Work clause, FAR 
52.242.14 . See Appeal File, Vol. 1 at F-5.  The Suspension of Work clause contemplates 
equitable adjustments for unreasonable delays in the performance of the contract.  Triax-
Pacific v. Stone , 958 F.2d 351, 354 (Fed. Cir. 1992).  In order to recover under the 

     
  
  
   
    
   
             
 
 
    
  
 
 
        
 
 
       
     
13 CBCA 50 
Suspension of Work clause, a contractor must show that (1) contract performance was 
delayed; (2) the Government directly caused the delay; (3) the delay was for an unreasonable 
period of time; and (4) the delay injured the contractor in the form of additional expense or 
loss.  John A. Johnson & Sons, Inc. v. United States , 180 Ct. Cl. 969, 986 (1976).  The 
burden of proof is upon the contractor to establish that the Government did in fact cause 
delay, and further that any delay adversely affected the project, entitling the contractor  to an 
equitable adjustment.  See William F. Klingensmith, Inc. v. United States , 731 F.2d 805 (Fed. 
Cir. 1984); Blinderman Construction Co. v. United States , 695 F.2d 552 (Fed. Cir. 1982). 
However, a contractor is only entitled to recover under the Suspension of Work clause when 
the Government’s actions are the sole proximate cause for the contractor’s additional loss, 
and the contractor would not have been delayed for any other reason during that period. 
Triax-Pacific , 958 F.2d at 354.  The general rule is that, 
“[w]here both parties contribute to the delay neither can recover 
damage[s], unless there is a clear apportionment of the delay and 
expense attributable to each party.”  Blinderman Construction 
Co. v. United States , 695 F.2d 552, 559 (Fed. Cir. 1982), 
quoting Coath & Goss v. United States , 101 Ct. Cl. 702, 714-15 
(1944).  Courts will deny recovery when the delays are 
concurrent  and the contractor has not established its delay apart 
from that attributable to the government.  
P.R. Burke Corp. v. United States, 277 F.3d 1346, 1359 (Fed. Cir. 2002) (quoting William 
F. Klingensmith, Inc. v. United States , 731 F.2d 805, 809 (Fed. Cir. 1984)).  In this case, 
therefore, Tidewater may only recover if it can (1) establish that the Government alone 
delayed the work by failing to issue a timely and necessary change order and (2) prove which 
portion of the total period of delay was thus chargeable solely to the Government.  See id. 
In reviewing Tidewater’s claim for delay, it is helpful to evaluate the time period at 
issue by looking first at the time period from January 5 until February 5, 2004.  The contract 
required the Government to issue its notice to proceed by January 5, 2004.  However, the 
Government did not conduct the preconstruction conference until February 5, 2004.  Under 
the contract, the Government could not issue its notice to proceed until after the 
preconstruction conference. 
The Government has argued that Tidewater failed to respond when the contracting 
officer contacted it initially to schedule the preconstruction conference.  However, the 
uncontradicted evidence is that the contracting officer did not schedule the preconstruction 
conference until February 5, 2004, and that the contracting officer chose that date after 
coordinating with county and national forest officials, as well as with Tidewater.  In addition, 

      
 
 
 
    
 
     
       
 
  
    
   
   
 
 
     
  
 
   
  
 
14 CBCA 50 
the contract puts the burden of scheduling the preconstruction conference upon the 
contracting officer.  See FAR 52.236-26 (“If the Contracting Officer decides to conduct a 
preconstruction conference, the successful offeror will be notified and will be required to 
attend.”).  Furthermore, the contractor could not proceed to work on the contract until after 
the preconstruction conference.  See, e.g. , Robert L. Rich , DOT BCA 1982, 82-2 BCA 
¶ 15,900 (granting recovery for a one-day delay when bad weather prevented the contracting 
officer from attending the pre-work meeting and the solicitation required that the meeting be 
held as soon as possible after award).  Therefore, we find that the Government caused the 
delay from January 5 to February 5, 2004, a period of thirty days. 
Next, we examine the evidence concerning the time period from February 5 until April 
6, 2004, to determine whether the Government used a reasonable period of time to review 
the first quality control submission. What is a reasonable period of time for the Government 
to do a particular act under the contract is entirely dependent upon the circumstances of the 
particular case.  Speciality Assembling & Packing Co. v. United States ,  355 F.2d 554, 565 
(Ct. Cl. 1966).  The length of time taken to grant approval does not establish ipso facto an 
unreasonable delay on the part of the defendant.  R.J. Crowley, Inc., (ASBCA 35679), 88-3 
BCA ¶ 21,151  (citing Jefferson Construction Co. v. United States , 368 F.2d 247, 256 (Ct. 
Cl. 1966).  It is the contractor’s burden to show “where the work was delayed because of lack 
of approval.”  Id. 
On February 5, 2004, the Government received a draft of Tidewater’s quality control 
plan from Foley Constructors, Inc., a subcontractor to Tidewater.  Tidewater officially 
submitted its quality control plan to the Government on February 27, 2004.  The Government 
advised Tidewater on March 1, 2004, that it would need to correct various deficiencies in the 
plan.  After receiving several revisions, the Government finally approved the plan on April 
6, 2004. 
 It is undisputed that Tidewater was contractually required to prepare a quality control 
plan, submit it to the Government, and obtain the Government’s approval.  Under the 
contract, moreover, the Government had a right to review the plan and ensure that it 
conformed to the contract requirements.  P.R. Burke, Corp. 277 F.3d at 1360 (citing Cascade 
Pacific International v. United States , 773 F.2d 287, 291 (Fed. Cir. 1985) (illustrating that 
the Government has a right to insist upon compliance with the contract’s requirements). 
Tidewater has not proven that the Government acted unreasonably by rejecting the various 
versions of the plan. 
We find that, as a matter of law, the time period from the initial submission of the 
quality control plan by Tidewater, i.e., February 27, 2004, until the date the plan received 
Government approval, April 6, 2004, cannot be attributable solely to the Government 

 
   
 
  
      
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15 CBCA 50 
because it was caused by Tidewater’s failure to comply with the contract.  The Government, 
for its part, was merely exercising its right under the contract to receive, review, and approve 
a plan that conformed to the contract.  J.S. Malone & Associates, Inc. v. United States , 879 
F.2d 841, 845 (Fed. Cir. 1989) (stating “it is settled that the government is entitled to obtain 
precisely what it contracts for as long as it does not mislead the contractor,”) and citing 
American  Electric Contracting Corp. v. United States , 579 F.2d 602, 608 (Ct. Cl. 1978). 
The contractor has not met its burden of proof to establish that the Government’s actions 
caused unreasonable delay to the work. 
In sum, we find that appellant has met its burden of proof to the extent that it has 
established that, of the eighty-nine days sought, the Government’s actions caused an 
unreasonable delay of thirty-one days. Appellant has failed to establish entitlement to the 
remaining extension of time sought in this appeal.    
Decision 
The appeal is GRANTED IN PART.  
JERI KAYLENE SOMERS 
Board Judge 
We concur: 
____________________________ _______________________________ 
JAMES L. STERN EILEEN P. FENNESSY 
Board Judge Board Judge