GRANTED IN PART: March 22, 2022
CBCA 5826, 6861, 6897, 7049
CTA I, LLC,
Appellant,
v.
DEPARTMENT OF VETERANS AFFAIRS,
Respondent.
John M. Manfredonia of Manfredonia Law Offices, LLC, Cresskill, NJ; William
E. Dorris of Kilpatrick Townsend & Stockton LLP, Atlanta, GA; and Brian G. Walsh, Tara
L. Ward, and Jennifer Eve Retener of Wiley Rein LLP, Washington, DC, counsel for
Appellant.
Harold W. Askins, III, Office of General Counsel, Department of Veterans Affairs,
Charleston, SC, and Tyler W. Brown, Office of General Counsel, Department of Veterans
Affairs, Portland, OR, counsel for Respondent.
Before Board Judges GOODMAN, KULLBERG, and CHADWICK.
CHADWICK, Board Judge.
This construction case was fully briefed after a hearing.  The respondent, Department
of Veterans Affairs (VA), terminated the contract for the convenience of the Government
after more than four years of performance.  The extent to which the appellant, CTA I, LLC
(CTA), may recover its claimed termination for convenience costs depends largely on
whether CTA is entitled to equitable adjustments of the fixed contract price.  We award CTA
reasonable, allocable, and allowable termination costs totaling $1,465,664.10.


CBCA 5826, 6861, 6897, 7049 2
Background
VA awarded the subject contract to CTA in May 2014.  The contract required adding
a second floor and interstitial space above an existing one-story building at a VA medical
facility in Richmond, Virginia, within 700 days of the notice to proceed for a fixed price of
$7,961,000.  VA terminated the contract for convenience in January 2019, almost twenty-one
months after the original completion date.1  The modified contract price as of the termination
date was $9,286,542.70, of which CTA has been paid $8,248,077.  CTA seeks termination
costs totaling $6,024,210.  The claimed amount represents costs of $1,038,465.70 up to the
contract price plus costs of $4,985,744.30 above the contract price.
As discussed below, because most of CTA’s termination claim depends on equitably
increasing the contract price, we must examine the circumstances that CTA alleges caused
it to incur excess costs.  With minor exceptions, the costs in dispute are not for additional or
changed work.  CTA mainly seeks costs it attributes to Government-caused delay,
suspension, and labor inefficiency, plus settlement expenses.2
We describe below the events that CTA says caused increased costs and time on the
project.  Our task is complicated by the fact that the testifying experts, and thus the parties,
disagree sharply about the project’s critical path.  Each party stood by its expert and briefed
a different critical path than the other party did, based on a different collection of schedule
updates.3  VA says little of substance about several of the schedule impacts alleged by CTA.
1 The contract incorporated by reference, among other standard clauses,
Termination for Convenience of the Government (Fixed-Price) (April 2012), Alternate I
(Sept. 1996), 48 CFR 52.249-2 (2013), which is for construction contracts.
2 Of the four consolidated appeals, CBCA 6897, filed in August 2020, arises
from VA’s July 2020 denial of CTA’s certified termination cost proposal.  CBCA 5826 and
CBCA 6861 were timely filed in August 2017 and June 2020, respectively, and involve
claims for equitable adjustments.  The parties partly settled CBCA 5826 in 2018.  CTA
timely filed CBCA 7094, seeking costs for a subcontractor, in February 2021.  The
prerequisites to our jurisdiction are satisfied.  See 41 U.S.C. §§ 7103–7105 (2018).  
3 As discussed below, VA’s expert relied on contemporaneous schedule updates,
whereas CTA’s expert analyzed the critical path by retrospectively creating updates to insert
between the contemporaneous updates.

CBCA 5826, 6861, 6897, 7049 3
Structural Steel Submittal
CTA mobilized on June 4, 2014.  The first phase of the project involved erecting a
steel structure above the existing roof to support the new construction.  CTA submitted its
structural steel drawings for approval on June 17, 2014, and received VA’s approval forty-
three days later on July 30.  CTA alleges that the review lasted twenty-one days longer than
was “reasonable,” which delayed the project.  VA does not mention this submittal.  Although
CTA observes that VA promised, in general, to return submittals within twenty-one days, we
see no basis in the record to determine a specific number of days that would have been
“reasonable” for review of this particular submittal. 
Second Floor Enclosure
CTA advised VA in October 2014 that it was ready to remove the roof of the first
floor per its approved schedule.  The contracting officer directed CTA not to remove the
existing roof until CTA built the new roof over the second floor and the new space was
weather tight.  We ultimately need not decide whether this was a contract change.  In
November and December 2014, VA provided instructions on maintaining the exterior seal. 
CTA asserts vaguely that “the weather barrier” required by VA “was nearly finished” by “the
end of” March 2015.  CTA then cites without elaboration its expert’s opinion that the
changed enclosure work delayed the project by 121 days, from October 16, 2015, to March 8,
2016.  VA has a different understanding of the critical path and does not mention this issue.
We note that in its complaint in CBCA 5826, CTA sought compensation for
suspension and delay “for an unreasonably long duration of 708 days through September 30,
2016.”  An agreement partially settling CBCA 5826, executed in May 2018 and incorporated
in bilateral contract modification 11,4 states that the settlement amount “constitutes full and
complete settlement and satisfaction of [CBCA 5826],” except as to “claims for unabsorbed
home office overhead, and consultant and attorney fees.”  We find that the May 2018 partial
settlement encompasses and releases a claim for an equitable adjustment for delay costs that
CTA attributes to the dispute about enclosing the second floor.
Preparing the Second Floor Topping Slab
The contract required CTA to scarify or roughen the concrete slab that had been under
the roof of the original building before installing a topping slab for the new second floor. 
CTA performed scarification for two days in May 2015 until the facility’s safety department
4 As usual, contract modification numbers are preceded by “P0000.”  We cite
modifications by their unique numerals.

CBCA 5826, 6861, 6897, 7049 4
demanded that CTA stop due to the noise.  The parties began to discuss alternative means
to prepare the slab.  On October 7, 2015, after nearly five months, the parties executed
bilateral modification 2, which included $57,875.51 to prepare the slab using dowels and a
bonding agent, with a time extension of fifty-nine days to August 8, 2016.
The release in modification 2 stated in part, “The consideration represents a complete
equitable adjustment for all costs, direct and indirect, associated with the change to the work
and time agreed to herein, including, but not limited to all costs incurred for extended
overhead, supervision, disruption or suspension of work, labor inefficiencies, and this
change’s impact on unchanged work.”  Furthermore, CTA’s schedule expert did not conclude
that the changed slab work was on the critical path—although VA’s expert thought it was.
CTA acknowledges that it disagrees with its expert but argues that “based on the
record, it is clear that the delays to the slab preparation and pouring of the slab for the Second
Floor prevented the interior framing and other work from proceeding from approximately
May 2015 to November 2015.”  VA states that the matter was “resolved” by modification 2
with “minimal impact.”  We see no basis to find that the slab preparation delayed the project
by more than the number of days for which CTA accepted “complete” payment in
modification 2.  In addition, the May 2018 partial settlement of CBCA 5826 released a claim
for “purported delays associated with . . . Slab Preparation [and] Second Floor Topping”
through September 2016, except as to “claims for unabsorbed home office overhead, and
consultant and attorney fees.”
Electrical Specifications and Coordination Studies
CTA states that it was ready to start work on interior finishes of the new second floor
in November 2015.  The source of conditioned air for the new space was a new air handling
unit installed by CTA.  CTA alleges, “Because of design defects in the electrical contract
documents provided by the VA, the power to the [air handler] could not be provided, thereby
delaying critical interior work and finishes.”  VA disagrees, citing emails to CTA from the
contracting officer in June and August 2016 stating that “[t]he primary reason” that CTA had
“been unable to make progress on the interior work is that the building is not closed in,” and
“Until CTA Builders completes the critical path item of comp[l]eting the building envelope
and sealing the building against the weather, it is impossible to start the interior finish work,
and the entire project will continue to be delayed.”  Neither party points to more detailed or
probative evidence as to why the work on interior finishes did not proceed as planned.
According to hearing testimony for CTA (not corroborated by citation of project
documents), the specifications showed some subpanels for the new area being served by
emergency power rather than primary power.  An electrical coordination study submitted by
CTA in late March 2015 raised questions about the adequacy of circuit breakers. 

CBCA 5826, 6861, 6897, 7049 5
In November 2015, VA asked CTA for a price proposal to install additional panels
and circuit breakers.  CTA submitted the proposal in late July 2016.  On September 2, 2016,
the contracting officer issued unilateral modification 4 directing CTA to rewire subpanels
that were served by emergency power.  CTA provided a second electrical coordination study
for the rewiring work in October 2016.  VA approved the study on November 17, 2016. 
Apparently, CTA performed modification 4, but the parties tell us no more about it.
CTA cites no evidence to prove exactly what work was delayed by the lack of power
to the construction space or exactly when the delayed work began.  Rather than describing
with specificity any activities that CTA maintains it could have started earlier, had it been
able to run the air handler, CTA cites its expert’s opinion “that the VA’s delay in correcting
the defective electrical design delayed the critical path of the project 570 days.”  The two
pages that CTA cites, however, merely synopsize the expert’s opinion and do not explain or
support it.  See Board Rule 23(b) (48 CFR 6101.23(b) (2020 )) (“post-hearing briefs . . . shall
cite record evidence for factual statements”); see also Amec Foster Wheeler Environment
& Infrastructure, Inc. v. Department of Interior, CBCA 5168, et al., 19-1 BCA ¶ 37,474
(“The purpose of expert testimony is to help the trier of fact to understand the evidence or
to determine a fact in issue. . . . [Bare] expert opinion on recoverability is not evidence.”
(internal quotation marks omitted)); Phillips & Jordan, Inc. v. United States, ___
Fed. Cl. ___, 2022 WL 594050 at *10 (Feb. 28, 2022) (“[T]he significance of sufficient
citation to the evidentiary record cannot be overstated.”).5  CTA adds, “During this 570-day
period, the critical path was driven by the need to provide electrical power to the [air
handler], followed by interior finishes.”  CTA cites no evidence (1) showing that work on
finishes could not start for roughly a year and a half without conditioned air or (2) rebutting
VA’s statements during the relevant period that the second floor was open to outdoor air.
In addition, the May 2018 partial settlement of CBCA 5826 cited above included
“full” payment for general conditions associated with “Electrical Coordination Study/VA
Modification to Correct Power Source” through September 2016, which covers some of the
delay alleged here. 
The evidence cited does not allow us to find that VA impeded CTA’s work as alleged. 
We will not search for better evidence.  See Amec Foster Wheeler; see also Parsons
5 The “narrative” of the expert’s report, which CTA does not cite, states that
certain work was “on the critical path” but does not identify successor finish work that could
not proceed—i.e., the report does not trace the logic ties to later activities.  CTA writes,
“Exhibit 603 [of the appeal file] includes all the month-by-month as-built schedules, which
provide a fair and complete picture of what drove the critical path throughout the project.” 
We will not undertake to analyze exhibit 603 on our own.  

CBCA 5826, 6861, 6897, 7049 6
Evergreene, LLC v. Secretary of the Air Force, 968 F.3d 1359, 1368 (Fed. Cir. 2020) (“[T]he
Board was [not] required to scour the tens of thousands of pages of record evidence in this
case, without any guidance, to determine the amount of an award.”); Lebolo-Watts
Constructors 01 JV, LLC, ASBCA 59740, et al., 21-1 BCA ¶ 37,789 (“[I]t is the duty of
counsel, not the Board, to advocate for their respective clients.”), aff’d, No. 21-1749, 2022
WL 499850 (Fed. Cir. Feb. 18, 2022).
Reverse Osmosis Water System Redesign
The project included a reverse osmosis system to collect water for use in dialysis.  In
late November 2015, VA requested a price proposal for a system with changed specifications
and for casework for the changed system.6  CTA provided the proposal on January 15, 2016,
but withdrew it in February, asking VA to “[p]lease disregard” the January proposal.  CTA
resubmitted the proposal on March 21, 2016, after further communications with the vendor. 
VA nominally approved the resubmittal a month later, on April 22, 2016, but did not issue
unilateral modification 5 to price the changed work until December 19, 2016.  It appears that
the water system and the casework were delivered to the site in June 2017.
CTA writes, “Not being able to install the [water] system delayed the Contractor’s
work on ceilings, floors, casework, plumbing, electrical, mechanical and finishes.”  CTA
cites one page of the hearing transcript.  At that page, a CTA executive and co-founder
testified that waiting for the water system “affected ceilings, floors, casework, plumbing,
electrical, mechanical, and finishes.  It affected everything.”  We see no elaboration in the
record of this vague and conclusory testimony.7  Testimony that work “affected” other work
does not necessarily imply that any activity delayed another activity in a path relationship. 
CTA cites correspondence in which CTA insisted to VA that installation of the new water
system was on the critical path, but CTA does not explain why this would be true—i.e.,
exactly which critical activities could not start until the water system was installed.  CTA
notes that its expert opines that the redesign and procurement of the water system “delayed
6 We omit details of VA’s extended difficulty deciding what sort of reverse
osmosis system it required.  We do not doubt that, to the extent that an impact on the critical
path were shown, VA would be substantially responsible for the delay, as the contracting
officer conceded in a deposition.
7  CTA’s expert testified that the water system redesign was not shown on the
critical path of CTA’s contemporaneous schedule, but that he placed it there when
developing a schedule for this dispute “[b]ecause we’re as-building the facts of finding out
what is the critical path that is actually occurring,” and “based on the as-built-it facts, it’s
there.”  This, too, is conclusory.

CBCA 5826, 6861, 6897, 7049 7
the critical path of the project from October 1, 2016 to June 6, 2017, a total of 249 days.” 
Again, CTA cites its expert’s opinion but does not explain why we should adopt it. 
VA, for its part, observes that a recurring note that the water system redesign was
delaying the project disappeared from the daily reports in May 2016, months before the
alleged delay began.  VA argues that this means the issue “was no longer consider[ed] as
delaying the project.”  We do not know why the reports changed, nor would we conclude that
a given activity either was or was not critical based on daily reports alone. 
CTA does not cite evidence sufficient for us to find that the protracted change of the
water system delayed activities on the critical path for any particular number of days.
Manpower Reduction and Cure Notice
On March 30, 2016, CTA’s president emailed the contracting officer that “CTA will
significantly reduce our manpower as of 7 April 2016” due to what CTA said were
“inordinately long periods” to obtain direction and answers from VA.  CTA added that “the
critical path of this project has been significantly delayed and labor inefficiencies/ripple
effects will be realized for many more months.”  
On June 10, 2016, the contracting officer issued a two-page cure notice.  He testified
at the hearing that his supervisor “instruct[ed]” him to issue it.  Included among seven
conditions bullet-pointed as “endangering the performance of this contract” were CTA’s
alleged “failure” to provide a timely price proposal for the water system discussed
immediately above, “failure to maintain superintendence at all times,” and “failure to bring
subcontractors under contract, direct and coordinate their efforts effectively, ensure
completion of the subcontracted work, and to pay subcontractors in full.”  The notice said
the project was “455 calendar days behind the approved progress schedule” and warned of
potential termination for default unless the seven conditions were “cured” within ten days.
CTA provided an eight-page response to the cure notice on June 20.  CTA denied in
detail not meeting its contractual responsibilities, including denying knowledge of “a single
instance when CTA did not have a superintendent onsite.”  CTA argued that its performance
of work “piecemeal and out of sequence” was “a result of VA mismanagement and defective
specifications” rather than “the fault of CTA or its subcontractors.”  CTA wrote that
“[t]ermination for default is not an option because CTA is not responsible for the suspension
of work” and asked VA to “retract its Cure Notice since it is not supported by the facts or
law.”  VA took no further action on the notice. 

CBCA 5826, 6861, 6897, 7049 8
Water Supply to Heat Exchanger
In July 2016, CTA submitted a request for information asking where to obtain “make-
up water” for the heat exchanger being installed on the second floor.  In January 2017, more
than six months later, VA responded by providing drawings for a new make-up water
connection.  On April 26, 2017, after further correspondence, VA issued unilateral
modification 6 adding $14,534.94 and no time to the contract to implement the change.
Again, CTA asserts that the changed work was on the project’s “critical path” but
does not flesh out why this was so.  CTA and its expert opine that the change delayed the
project by fifty-one days, from June 7 (the significance of which date CTA does not specify
here) until July 27, 2017, when connecting the make-up water allegedly “allowed the [air
handler] to be energized.”  CTA cites as factual support a single answer by its co-founder at
the hearing.  He testified only that the connection of the make-up water “coincided with”
powering up the air handler.  Especially given the uncertainty described above as to the
significance of conditioned air to the activities on the critical path, we would need more than
vague evidence of a coincident relation to the air handler to find that the plumbing work
caused a delay.  VA does not discuss modification 6 in detail but cites correspondence from
April 2017, two weeks prior to modification 6, in which VA complained again that “CTA
still has not sealed the exterior building envelope against the weather.”  CTA never rebuts
VA’s contemporaneous assertions that CTA had not sealed the new second floor.
CTA does not cite evidence sufficient for us to find that the work on the water
connection under modification 6 delayed activities on the critical path for any particular
number of days.
Generator Pad
On September 13, 2017, VA issued unilateral modification 8, adding (among other
things) $6032.83 to the contract for changes to an exterior concrete pad for a generator, as
well as 311 days (more than ten months) to the contract schedule.8  The record shows that
during November 2017, VA considered making another change to the pad to avoid an
exterior duct bank.  CTA installed the concrete pad in four days in February 2018.
CTA states that the pad change caused two discrete delays in 2017, totaling eighty-six
days—the first from September 8 to October 15, 2017, and the second from December 1 to
18, 2017.  Again, CTA recites the opinion of its expert without a basis for it.  We see no
explanation of the significance of the specified dates in September, October, and
8 No one explained why the modification included the 311 days.

CBCA 5826, 6861, 6897, 7049 9
December 2017 to this supposed “critical path” work that CTA performed in a single week
in February 2018, weeks after the final alleged “delay” had ended.  We infer that CTA’s
expert must have concluded that the modified work fell off the critical path before it was
performed.  Lacking explanation in the briefs as to why timely project completion depended,
or seemed to depend—for twelve weeks in 2017, at least—on timely pouring an exterior
concrete pad, we cannot find the overall project delay that CTA alleges here. 
Piano Hinges
On February 14, 2018, VA, following up on a CTA request for information from
October 2017, asked CTA to propose a price to modify seven doors to accommodate “piano”
hinges that had been specified but which CTA said would not work in the specified door
frames.9  CTA provided a proposal for $3601.38 on March 5.  Nothing came of the issue. 
VA never modified the specifications for the doors or the hinges.
CTA says the correspondence alone “delayed the critical path of the project by 58
days from October 16–31, 2017 and January 4 to February 14, 2018.”  Again, we infer,
lacking explanation, that this is an example of an activity (here, an information request)
falling on and off the “critical path” in CTA’s retrospectively recreated schedules.  CTA does
not explain how a change that was not made became “critical” and delayed the project before
VA asked for the price proposal yet not afterward.  CTA writes, “The successor activity for
the piano door hinge [sic] is testing, adjusting and balancing the HVAC [heating, ventilation,
and air conditioning] system.”  Since it appears, as discussed below, that testing and
balancing began in April 2018, we cannot understand without a better explanation how
unchanged door specifications could have caused not just one but two distinct “delays” that
ended weeks before April 2018.10
Circuit Setters for Variable Airflow
Between January 2016 and March 2018, the parties corresponded about CTA’s
suggestion to add “circuit setters” (combination balancing/shutoff valves) to the variable
9 CTA writes, “The hardware schedule listed piano hinges for the . . . door
frames, but these frames cannot accommodate piano hinges.”  CTA cites no “record
evidence” to support the “factual statement” in this sentence.  See Rule 23(b). 
10 VA concedes, in reliance on its expert, that CTA is entitled to delay costs for
a total of “60 days [within] the period of 1 August 2017 to 1 February 2018.”  VA explains
only, “Respondent’s expert identified 60 days as compensable . . . related to Test and
Balancing[.]”  The cited page of the expert’s report summarizes the opinion without stating
a basis for it.  A footnote cites project notes about “ckt setters.”

CBCA 5826, 6861, 6897, 7049 10
airflow valve boxes on the new second floor.  CTA maintained that airflow could not be
balanced without such valves.  In February 2018, CTA submitted a change proposal for the
circuit setters.  In late March, VA advised CTA that VA “plan[ned] to have an answer to
CTA on this issue . . . on” March 28. 
“Ultimately,” CTA writes, “CTA’s plumbing subcontractor . . .  ordered and installed
the additional circuit setters without a change order from the VA.”  CTA cites a deposition
of a subcontractor employee.  He testified, “I was told to order” the circuit setters.  He did
not say by whom.  “We did order them,” he continued.  “Then we were told to install them.” 
When asked, “What made you decide go ahead and do it?”—i.e., order the equipment absent
a contract modification—he testified, “I don’t know.  I don’t remember.”
VA now agrees that the circuit setters were needed and does not oppose paying CTA
for the change in a termination settlement.  The contracting officer testified in a deposition,
“I think it was an omission on the mechanical design documents that resulted in th[is]
change.”  VA does not concede compensable delay.  CTA writes without elaboration,
“CTA’s delay expert determined that this . . . circuit setter issue delayed the project’s critical
path for 55 days, from March 6 to April 29, 2018.”  CTA does not explain the significance
of April 29, but it appears to be the date that CTA retrospectively inserted in the schedule as
the notional “approval” or end date of the unapproved change order.  VA counters with
evidence that “[f]rom 1 February to 1 August 2018, the daily reports do not reflect any
impediments to completion of the project.” 
We have two particular reservations about finding CTA entitled to an equitable
adjustment for any delay caused by this issue.  The first is that, by CTA’s description, the
predecessor activity to installing the circuit setters was VA’s approval of the change—an
event that never occurred.  We are reluctant to endorse “self-help” by a contractor that
proceeds with work outside of the contract, even if the Government later appreciates the
work.  We do not know—despite the contracting officer’s non-expert opinion given years
after the fact—what action VA might have taken on the proposed change at the time.  “The
contracting officer’s current stance on matters raised in the appeal is something for us to
consider in resolving the case, but it is hardly controlling.”  Airo Services, Inc. v. General
Services Administration, GSBCA 14301, 98-2 BCA ¶ 29,909.  
Our second concern is that, as VA implies, if we assume that a single change request
was delaying the entire project for multiple weeks, we would expect to see evidence of
specific activities being postponed, starting on or around March 6.  We would probably also
expect a contractor or subcontractor who decided to move ahead with changed work without
agency direction to have a more vivid memory of the exigency that demanded such an
unusual action.  

CBCA 5826, 6861, 6897, 7049 11
Wiring Automatic Doors
In May 2018, VA, following up CTA inquiries of November 2017 and January 2018,
provided CTA with information that had been missing from the specifications regarding how
to wire electricity to automatic doors.  On May 10, 2018, CTA submitted an “unsolicited”
price proposal for the wiring work.  VA never modified the contract in response.  CTA writes
that it nonetheless “completed installation of the automatic doors on June 25, 2018 without
a modification.”  CTA states without elaboration that its “expert determined that CTA’s
progress was delayed 56 days,” from April 30 to June 24, 2018, “due to the need to provide
power to the automatic doors and the time it took the VA to address it.”  Again, VA agrees
to pay for the unauthorized work but does not admit liability for delay. 
We have doubts about the proof of this delay period similar to those expressed above
about the piano hinge and circuit setter matters.  VA never formally modified the contract,
yet CTA places start and end dates on a “delay” “caused” by CTA’s pending request for a
modification.  And again, we see no contemporaneous confirmation that the parties perceived
that, for up to seven weeks, this single change request was delaying the project.11 
VA Occupies Space for Next Phase
VA had fourteen days under the contract to vacate a new area of the building for a
further phase of the project after closing the punch list for the new second floor.12  Project
notes show that in July 2018, VA vacated the area in twenty-two days.  VA does not mention
July 2018 events.  We find that VA delayed demolition for the next phase by eight days.
Asbestos Suspension Until Termination
On August 6, 2018, VA directed CTA to stop work because of the presence of
asbestos in the next construction area.  CTA performed no more construction although its
superintendent and some workers remained onsite.  After corresponding with CTA about
potential remediation work, VA terminated the contract for convenience on January 30,
11 CTA notes that VA wrote in a list of outstanding issues dated May 22, 2018,
that automatic door installation was “[v]ery hot.  Needs to be done pronto.”  (Boldface and
underlining omitted).  The May 22 list predated the alleged delay period by five weeks,
showed multiple other urgent issues (including five others in bold and underlined text), and
did not state that any activity was on the project’s critical path.  
12 The General Requirements stated, “Contractor to allow 2 weeks between
phases for Owner to furnish and move operations into addition before beginning construction
of phase 3 work.” 

CBCA 5826, 6861, 6897, 7049 12
2019.  Counsel for VA stated at the hearing that the agency “is not without fault on this
contract,” “takes full responsibility for the delay following the identification of asbestos,”
and “concedes general conditions [and general and administrative] expenses related to those
178 days” until the termination.  VA states in its brief that it “has assumed responsibility for
238 days [of delay] related to test[ing] and balancing . . . and asbestos mitigation [sic].” 
Summary of Delay Contentions
As foreshadowed, the scheduling experts largely talk past one another.  Each expert
says his approach to quantifying delay is correct and the other expert’s approach is wrong. 
VA accepted CTA’s baseline schedule in May 2014.  The schedule showed
completion in 394 days, 306 fewer than allowed by the contract.  CTA did not update the
schedule regularly.  CTA submitted eighteen updated schedules during the fifty-six months
of the project.  The experts dealt with the time gaps between updates in different ways. 
Appellant’s Expert
CTA’s expert, Roger Gullo of Project Technologies Group, Inc., began working on
CTA’s pending claims in late 2018, before the termination.  He testified that his “first task
was” to “take a look at developing an as-built [schedule] up through November 2018 and [to]
prepare a schedule to complete . . . all remaining contract work.”  He found that some
activities in the approved baseline schedule against which CTA was then working were
“open-ended” and not tied to successor activities in the scheduling software program.  He
inserted logic ties for those activities.  He then undertook a review of the as-built project
documentation to recreate a monthly schedule update for each month of the project for which
there had been no schedule update.  
Mr. Gullo testified that, in so doing, he added to CTA’s contemporaneous,
computerized schedules activities such as requests for information, proposed change orders,
and requests for proposals, as well as durations for those activities, “because [such activities]
have the potential of driving the completion date of the project.”  He emphasized that “what
we did was an additive process, not a subtractive process.  We took nothing away.  We only
added [information that] wasn’t there” in the baseline schedules.  Mr. Gullo testified that he
and his team tried to assign start and end dates to activities based on daily reports, but “in the
absence of documentation because the daily report may have missed, or didn’t get into the
detail that [was needed], then we conducted interviews with the project team.”13  He later
13 No notes or records of such interviews are in the appeal file.  Cf. Amec Foster
Wheeler (noting that two experts unhelpfully relied on extra-record “discussions”). 

CBCA 5826, 6861, 6897, 7049 13
said, “So if you look at the last [monthly] update,” number 56, “it is a combination of
everything that was put in” from the as-built information.
After assembling the eighteen contemporaneous and thirty-eight forensically
reconstructed schedule updates, Mr. Gullo testified, he undertook “in essence . . . a time
impact analysis [using] monthly windows. . . . And in [each] window [we] were coming up
with the actualized delays that had occurred in that monthly window.  Nothing projected.” 
He described the process as: “Step one, you identify the critical path and the driving actual
critical activities during that monthly window. . . . Step two is to go ahead and calculate the
actual activity level slippage. . . . The third step is to classify responsibility for that
slippage. . . . And finally, the fourth step is to look at near critical activities,” that is, activities
with some but very little float, and to ask whether they might arguably have caused delay that
might not be visible on a schedule with a resolution level of a month.
Mr. Gullo later testified about his approach to classifying delay as excusable or
inexcusable on the contractor’s part.  “That’s always in counsel with, first and foremost, the
contractor,” he said.  “And then with the legal [team].  So putting the excusable,
non-excusable” label on a delay “is always left up for legal determinations.”
Mr. Gullo opined that CTA experienced 1430 days of compensable delay.  His written
reports as well as his hearing testimony were devoted largely to summarizing and justifying
his forensic reconstruction approach and to rebutting VA’s criticisms of that general
methodology.  Nowhere does Mr. Gullo or (more importantly) CTA attempt to guide the
Board through the reconstructed as-built critical path, delay by delay, pointing to supporting
details in the project record or elsewhere in the case record.  CTA never explains with
reference to specific evidence why it contends that any given activity delayed another
activity—or, for that matter, why or when Mr. Gullo or someone else decided that a given
logic tie between activities on the asserted critical path should be used in the schedules.  As
seen above, CTA invites us to accept the summarized results of Mr. Gullo’s analysis but cites
little or no evidence to corroborate the factual conclusions and judgment calls that Mr. Gullo
testified went into forming his opinions.
Respondent’s Expert
We say less about the opinions of the agency’s expert, Todd Mayo of Capital Project
Management Inc., as VA bears little or no burden of proof.  Mr. Mayo’s report states that he
“was not in possession of a final as-built schedule and was unable to construct one.” 
Mr. Mayo testified that he is “not a big fan” of Mr. Gullo’s “method of analysis.  I’m trying
to be polite in the criticism, but we—I and my company—we strongly depend on
contemporaneous schedules for our analysis. . . .  And if people start manipulating them too
much, you should treat them with skepticism.”  Mr. Mayo offered no examples of alleged

CBCA 5826, 6861, 6897, 7049 14
manipulation.  He expressed general reservations about an analysis in which so many
activities were added. 
[I]t’s not just the addition of activities or breaking an activity into [four
activities or] whatever it may be . . . . [T]he logic ties [are] where the art [of]
the claims consultant comes into play, okay?  And when you do that type of
analysis, you can pretty much make just about anything you want to be critical
and be causing the delay.  And some of the things I saw in the [Gullo] report
[seemed to be only in the nature of,] here’s a couple of issues, [or] a document
that looks funny.  I mean, door hinges causing months of delay?  I’ve never
seen that before on a project. 
Raising the rhetorical heat of Mr. Mayo’s testimony (without, however, citing it), VA calls
Mr. Gullo’s analysis “essentially . . . a work of fiction” and accuses Mr. Gullo of “completely
disregard[ing] the contemporaneous schedules in favor of a complete forensic after-the-fact
created project schedule.”  (We find these assertions overstated, as discussed below.)
For reasons not fully explained, Mr. Mayo did not use all eighteen of CTA’s
contemporaneous baseline schedule updates in his analysis.  He analyzed the critical path
using six schedule “windows” and found 327 days of delay compensable to CTA, with the
longest compensable delays arising from preparation of the slab for the new floor (147 days),
“Unit Masonry, Gypsum Board, Plumbing and Sprinkler Rough-In, [and] Thermal
Insulation” (179 days), and the asbestos stoppage (85 days).14  Mr. Mayo identified a total
of 1307 days of project delay through January 2019.  The parties do not explain the wide gap
between that number of days and Mr. Gullo’s figure of 1430 days of compensable delay. 
Some but not all of the difference seems to arise from the fact that Mr. Mayo did not credit
CTA with the early finish date incorporated in its approved schedule.
CTA says Mr. Mayo “intentionally ignores as-built facts [by] refus[ing] to make any
adjustments to the contemporaneous schedules to reflect what was happening in the field.”
Unabsorbed Home Office Overhead (Eichleay)
The largest cost categories in dispute are CTA’s claims for $1,928,508 for itself and
$258,394 for a subcontractor in unabsorbed overhead.  CTA writes, “There was extensive
and compelling proof that much of the work on the Project was suspended for long periods
14 Confusingly, VA never cites its expert’s bottom line of 327 compensable days. 
VA “assume[s] responsibility” for 238 days of delay but goes on to assert that “Appellant has
been fully compensated for any Government[-]caused delay.”

CBCA 5826, 6861, 6897, 7049 15
of time, resulting in a significant reduction and, at times, complete interruption of the
contractor’s stream of income from direct costs incurred.”  CTA shows that contract billings 
averaged more than $200,000 per month through 2015 but “fell sharply” after 2015, falling
to about $89,000 per month in 2016, about $77,000 per month in 2017, and lower than that
until the termination.  CTA maintains that it was “on standby” because “neither CTA nor [the
subcontractor] ever demobilized . . . [but] maintained personnel and crews assigned to this
Project ready to perform work as it became available.  CTA continued to remain on standby
as of the date the project was terminated for convenience.”  (Transcript citation omitted.)  
CTA contends that “[h]ad the schedule not been delayed by the VA,” CTA would
have received revenues of “approximately $170,000” per month throughout the project. 
CTA presents a calculation relying on the Eichleay formula15 in which CTA treats all of the
days of compensable delay supported by its expert as days of “standby” resulting in
unabsorbed home overhead.  On behalf of the subcontractor, CTA states that the
subcontractor “based its claim for unabsorbed overhead on a conservative number of delay
days (867 days for the HVAC [sub]contract and 745 [days] for the Plumbing [sub]contract)”
at two slightly different daily home overhead rates.  CTA argues that the subcontractor
“—like CTA—was on standby during the VA-caused delays” and could not obtain
replacement work.  VA generally denies that it delayed CTA or the subcontractor or required
them to stand by.  We further address the Eichleay issue below after discussing delay costs.
Other Additional Work
CTA includes in its claim the costs of two additional items of work.  In both instances,
CTA relies on unpersuasive testimony to allege or imply direction by VA. 
Rerouting Interstitial Duct
In March 2015, CTA submitted a proposed change order to reroute an interstitial duct
servicing the second floor for $5010.54.  CTA writes in the passive voice that a subcontractor
“was told to proceed” with the change order.  The cited deposition testimony of a
subcontractor employee is, “I submitted a change order.  I was told to proceed, and they
never paid it.”  We cannot tell who allegedly told the subcontractor to proceed.  We see no
evidence of direction by the contracting officer.  To the extent that CTA points to this
testimony as evidence that VA authorized CTA to proceed, we view the testimony as vague
and unreliable hearsay which does not prove the assertion.  See TDC Management Corp.,
DOT BCA 1802, 91-2 BCA ¶ 23,815.
15 See Melka Marine, Inc. v. United States, 187 F.3d 1370, 1375 (Fed. Cir. 1999);
Eichleay Corp., ASBCA 5183, 60–2 BCA ¶ 2688.

CBCA 5826, 6861, 6897, 7049 16
Shower
Similarly, in November 2017, CTA submitted a proposed change order to add a
shower that VA had requested for the second floor.  The proposed price was $3088.82.  CTA
writes that, after initially rejecting the change order, “VA subsequently approved” it, and the
same subcontractor performed the work.  The subcontractor employee testified, “I found the
shower, submitted the price, and they approved it.  And we installed it, and they didn’t pay
for it, again.”  Again, we cannot tell who “they” were who allegedly “approved” the change. 
CTA cites no evidence of approval or direction by the contracting officer.  To the extent that
“they” were allegedly VA, the testimony is unreliable hearsay.
Unpaid Electrical Subcontractor
CTA writes, “Tate & Hill, the electrical subcontractor, incurred costs on the project
for which it has not been paid.  Those costs were detailed in correspondence from Tate &
Hill to CTA’s surety and consist of items billed to CTA late in the project which were never
paid by the VA[.]”  The subcontractor’s letters to CTA’s surety about nonpayment by CTA
could not establish CTA’s entitlement a price adjustment without further explanation, and
we do not construe CTA’s brief as seeking a price adjustment here.  CTA makes no effort
to substantiate the subcontractor’s entitlement.  CTA cites the following unenlightening
hearing testimony of the contracting officer.
Q  Tate & Hill should be paid for the work that it did on this job that hadn’t
been paid for yet, right?
A   Certainly.
All we gather from this is that CTA has unpaid invoices from this subcontractor.
Labor Inefficiency
CTA explains in its post-hearing brief its “position . . . that some of [CTA’s] costs
were incurred due to VA-caused labor inefficiencies, but that under a termination for
convenience, all of CTA’s subcontractor costs are properly included as costs incurred on the
project” regardless of efficiency.  CTA then describes its stance as a “labor inefficiency
claim” that is “supported by the reports of a labor inefficiency expert” in the appeal file,
which CTA does not discuss.  CTA later clarifies that it “did not attempt to fully prove [an
inefficiency claim] at the hearing because all of CTA’s labor costs are captured under the
termination for convenience’s total cost approach.  [See below.]  Even so, CTA has provided
documentary and testimonial evidence, which sufficiently rebuts any contention that CTA’s
labor costs were caused by its gross disregard of the contract or unreasonableness.”  This
generalized discussion does not—and does not seem to be intended to—prove any particular

CBCA 5826, 6861, 6897, 7049 17
costs resulting from agency-caused disruption or inefficiency.  See, e.g., Luria Brothers &
Co. v. United States, 369 F.2d 701, 713 (Ct. Cl. 1966); Turner Construction Co.
v. Smithsonian Institution, CBCA 2862, et al., 17-1 BCA ¶ 36,739.
Interest on Borrowing
CTA says it “had to borrow money” to fund project delays.  It does not specify which
delays, or a specific number of days of funded delay.  CTA’s co-founder testified,
“[C]urrently we have about $8.1 million of debt, which was to fund the delays on this project
and one other, the Albany project.”  An accountant opined that interest payments of $488,590
are allocable to this contract.  CTA cites no lending documents and nothing to support its
method of allocating debt between the two contracts.  See Rule 23(b).  CTA writes, “The
record is clear that the interest paid was on funds borrowed because of the government’s
delay and delayed payments, and those funds were used explicitly for this project.”  We
disagree.  Those things are not “clear” or proven.  “Unsubstantiated assertions do not equate
to evidence.”  Jones v. Department of Health & Human Services , 834 F.3d 1361, 1369 (Fed.
Cir. 2016) (internal quotation marks and brackets omitted).
Settlement Costs
The parties stipulate that CTA incurred post-termination settlement costs of $12,315.
Discussion
Nature of the Case
A threshold issue is whether this case is solely about termination for convenience
costs—with the respective burdens for such claims—or, instead, retains aspects of a more
typical construction dispute.  We find that the latter is true.  In order to award termination
costs, we must resolve claims as we would in a straightforward construction case.
In general, in exchange for the right to end a contract without advance notice or legal
cause, the Government promises to leave the contractor financially unharmed.  See generally
Maxima Corp. v. United States, 847 F.2d 1549, 1552 (Fed. Cir. 1988).  “In contrast to
common law damages for breach of contract,” a standard Termination for Convenience
clause “limits the contractor’s recovery to costs incurred prior to the termination, a
reasonable profit on the work performed, and certain additional costs associated with the
termination.  Anticipatory profits and consequential damages are not recoverable.”  Best
Foam Fabricators, Inc. v. United States, 38 Fed. Cl. 627, 637–38 (1997) (citation omitted);
accord Universal Home Health & Industrial Supplies, Inc. v. Department of Veterans Affairs,
CBCA 4012, et al., 16-1 BCA ¶ 36,370; see 48 CFR 52.249-2 (Alternate I) (2013)

CBCA 5826, 6861, 6897, 7049 18
(enumerating the usual cost categories).16  Termination for convenience “essentially acts to
convert a fixed-price contract into a cost[-]reimbursement contract.”  Russell Sand & Gravel
Co. v. International Boundary & Water Commission, CBCA 2235, 13 BCA ¶ 35,455 (citing
cases); accord Best Foam Fabricators, 38 Fed. Cl. at 640; see New York Shipbuilding Co.,
ASBCA 15443, 73-1 BCA ¶ 9852 (1972).  Under such an agreement, the contractor is
“entitled to recover its reasonable, allocable, and allowable costs.”  Abcon Associates, Inc.,
PSBCA 5291, 08-1 BCA ¶ 33,762; see Morton-Thiokol, Inc., ASBCA 32629, 90-3 BCA
¶ 23,207; Worsham Construction Co., ASBCA 25907, 85-2 BCA ¶ 18,016 (“The parties
[argue] . . . as if an equitable adjustment under a firm-fixed-price contract is involved. . . .
This basic assumption . . . is erroneous.  Even assuming that the delayed performance of the
contract was caused in part by appellant, . . . the contractor is entitled to recover all allowable
costs.”); see generally 48 CFR parts 31, 49.
The principle that the contractor should not incur a loss is not, however, absolute. 
“Any award . . . must be limited to items specifically allowed by the termination clause.” 
Kalvar Corp. v. United States, 543 F.2d 1298, 1305 (Ct. Cl. 1976); cited in Avant
Assessment, LLC, ASBCA 58903, et al., 17-1 BCA ¶ 36,837, aff’d, 752 F. App’x 1000
(Fed. Cir. 2018).  The clause used here limits recovery “exclusive of” settlement costs to “the
total contract price as reduced by (1) the amount of payments previously made and (2) the
contract price of work not terminated.”  48 CFR 52.249-2(f).17  Accordingly, CTA may
“recover its actual and allowable costs of work prior to the termination, limited to the total
contract price,” plus settlement costs.  Foremost Mechanical Systems, Inc. v. General
Services Administration, GSBCA 12527, et al., 95-1 BCA ¶ 27,382 (1994) (emphasis added)
(citing Maitland Brothers, ASBCA 43088, 93-3 BCA ¶ 26,007); accord Richerson
Construction, Inc. v. General Services Administration, GSBCA 11161, et al., 93-1 BCA
¶ 25,239 (1992) (performance costs are recoverable “subject to the properly adjusted contract
price as a ceiling” (citing cases)).  
16 The measure of recovery under 48 CFR 52.212-4(l), a “commercial”
termination clause, differs and is not at issue here.
17 Here, we consider the “payments previously made” to be prima facie the “price
of work not terminated” prior to any equitable adjustments.

CBCA 5826, 6861, 6897, 7049 19
In a supplemental brief,18 CTA urges us to adopt the “total cost” approach used in
Safeco Insurance Co. of America, ASBCA 52107, 03-2 BCA ¶ 32,341.  The board in Safeco
saw “no requirement in [regulation] for a contractor to segregate equitable adjustment claims
and termination for convenience costs in its termination settlement proposal” and “concluded
that the Government alone [wa]s responsible for increased costs resulting from differing site
conditions, work suspensions, changes, and delay, disruption and inefficiency[,] and that
Safeco properly submitted a total cost termination settlement claim, thereby dispensing with
any need to separate any possible losses caused by Safeco.”  Id. (emphasis added). 
Importantly, the board in Safeco found that the contracting officer had implicitly “approved
the use of the total cost settlement proposal . . . well aware that it would include equitable
adjustment costs resulting from the Government’s failure to resolve the differing site
condition problems.”  Id.  A later decision of the same board emphasizes that the contracting
officer in Safeco “agreed to the total cost method” and that “the Board’s language” in Safeco
about the effect of an agency’s mere “failure to object” to the components of a cost proposal
“is both dicta and equivocal.”  EJB Facilities Services, ASBCA 57112, 15-1 BCA ¶ 35,867. 
CTA argues that, here, “[b]oth parties agreed to a total cost approach” in their respective
post-hearing briefs.  In a supplemental brief, VA emphasizes, for the first time, the ceiling
of the contract price.
We consider ourselves bound by the language of the Termination for Convenience
clause and unfree to follow Safeco by fashioning an award on a “total cost” basis without
observing the price ceiling.  See Kalvar, 543 F.2d at 1305 (reasoning that awarding breach
damages “would render the termination procedure meaningless”); White Buffalo
Construction, Inc. v. United States, 52 Fed. Cl. 1, 4 (2002).  VA never admitted and we do
not find that the agency is solely responsible for CTA’s extra costs.  Nor are we bound by
VA’s apparent error of law in not initially calling our attention to the significance of the
contract price.  E.g., Technicon Instruments Corp. v. Alpkem Corp., 866 F.2d 417, 422 (Fed.
Cir. 1989) (Nies, J., joining with comments) (citing cases), cited in CSI Aviation, Inc.
v. General Services Administration, CBCA 6543, 20-1 BCA ¶ 37,580.
18 The parties did not brief the price ceiling initially.  VA’s post-hearing brief
refers in passing to the limit of the contract price but states, “Where the proposed costs are
reasonable, allocable, and allowable, Appella[nt] is entitled to recovery” and argues that
costs caused by “mismanagement or improper performance” are unreasonable.  Neither post-
hearing brief tells the Board the final contract price.  CTA’s reply asserts, “Respondent
agrees that [48 CFR 52.249-2] governs recovery of costs incurred and that all allowable,
allocable and reasonable costs should be paid Appellant.”  (Emphasis added.)  The Board
invited supplemental briefing of the significance of the contract price.

CBCA 5826, 6861, 6897, 7049 20
Thus, given the dollar figures noted above, CTA may recover no more than
$1,038,465.70 in pre-termination costs unless we equitably increase the contract price. 
See Foremost Mechanical; White Buffalo Construction, 52 Fed. Cl. at 4.
Within the limit of the contract price, a termination settlement or award “should
compensate the contractor fairly for the work done and the preparations made for the
terminated portions of the contract . . . . Fair compensation is a matter of judgment and
cannot be measured exactly . . . . The use of business judgment, as distinguished from strict
accounting principles, is the heart of a settlement.”  48 CFR 49.201(a), quoted in Dream
Management, Inc. v. Department of Homeland Security, CBCA 5517, 17-1 BCA ¶ 36,716
(single judge).  The “fair compensation concept” does not guide us in deciding whether or
how much to adjust the contract price.  We hold CTA to the usual burdens of proof of
entitlement, causation, and quantum with regard to claims that, if granted, would increase the
price.  See Herman B. Taylor Construction Co. v. General Services Administration, GSBCA
15421, 03-2 BCA ¶ 32,320; Foremost Mechanical (finding that costs were allowable yet did
“not provide a basis for increasing the contract price that limits Foremost’s recovery”).
VA argues for a separate limit on recovery.  Citing no authority, VA argues that
“labor inefficiencies that are a direct result of the contractor’s inability to schedule work or
manage and pay subcontractors [are] not a reasonable cost to pass [to] Respondent” in a
termination.  “Recovery of these costs would allow Appellant to benefit from a problem that
the Appellant created.”  This sets the bar for recovery too high.  Courts and boards ask
whether termination costs are “reasonable, allocable, and allowable”—not whether the work
satisfied the contract.  See Best Foam Fabricators, 38 Fed. Cl. at 640 (citing cases).  This is
logical, as “a contrary rule would, in effect, convert a convenience termination into a
termination for default” and introduce considerations of “fault or negligence” that are not
mandated by the Termination for Convenience clause or customary in cost-type contracting. 
Id.; see also Riverport Industries, Inc., ASBCA 30888, 87-2 BCA ¶ 19,876 (awarding costs
absent a showing of “gross disregard of . . . contractual obligations”); New York Shipbuilding
(suggesting in dictum that only “the costs of performing . . . grossly deficient work would
be considered unreasonable and hence unallowable”).
We see no gross or patent disregard by CTA of its contractual responsibilities that
could justify denying costs that are otherwise recoverable under the Termination for
Convenience clause.
Contract Price Ceiling
We find CTA entitled to equitable adjustments totaling $414,883.40.  This makes the
adjusted contract price $9,701,426.10, leaving headroom to award $1,453,349.10 in pre-
termination costs.  Our reasoning follows.

CBCA 5826, 6861, 6897, 7049 21
Uncontested Change Claims 
In a quantum stipulation, VA concedes liability for costs of “additional work” totaling
$48,157.  CTA describes the work as “changes performed by subcontractors” relating to the
circuit setters, automatic door wiring, make-up water connection, interstitial duct, and the
shower, all discussed above.  We agree with VA that the costs of such work are termination
costs allocable to the contract, but we find entitlement to an adjustment of the price ceiling
for only one of the claims.  
As explained above, in four of the situations (circuit setters, door wiring, duct, and
shower), we see no evidence that VA authorized the work.  Such a record cannot establish
entitlement to payment for constructive changes.  See, e.g., Nu-Way Concrete Co.
v. Department of Homeland Security, CBCA 1411, 11-1 BCA ¶ 34,636 (2010).  For the water
connection, VA issued a unilateral modification and now concedes without explanation that
CTA is entitled to another $9565.27 for the modified work.  We accept that factual
stipulation per Rule 9(a)(1)(v) and increase the contract price by $9565.27.
General Conditions (Delay)
To obtain a price adjustment for delay, CTA “has the burden of proving the extent of
the delay, that the delay was proximately caused by government action, and that the delay
harmed” CTA.  Wilner v. United States, 24 F.3d 1397, 1401 (Fed. Cir. 1994) (en banc).  Only
delay on a project’s critical path results in overall delay.  See Kinetic Builders Inc. v. Peters,
226 F.3d 1307, 1317 (Fed. Cir. 2000); Affiliated Western, Inc. v. Department of Veterans
Affairs, CBCA 4078, 17-1 BCA ¶ 36,808.  We find CTA entitled to 186 days of delay at a
daily rate of $610.24, totaling $113,504.64.
We find entitlement to fewer days than CTA claims, not because we reject outright
the approach taken by CTA’s expert, as VA urges us to do, but because CTA does not
persuade us that the analysis avoids pitfalls and produces a reliable critical path in this
particular case.  CTA essentially treats its expert’s opinions as a “black box.”  CTA
repeatedly posits an alleged cause of delay then recites without elaboration or evidentiary
support its expert’s opinion that the situation caused a certain number of days of critical path
delay.  An expert witness cannot simply “bless” delay claims in this manner.  As noted,
expert testimony should help the Board “understand the evidence or . . . determine a fact in
issue.”  Fed. R. Evid. 702(a).  Opinions alone are not evidence or facts.

CBCA 5826, 6861, 6897, 7049 22
CTA’s expert undertook an “as-built critical path” analysis involving reconstructed
schedule updates.19  Notwithstanding VA’s criticisms, a rigorous “as-built” approach—
reviewing contemporaneous evidence in hindsight to trace the activities on the actual, longest
path to completion—has been endorsed by government contracts tribunals.  We explained
in Yates Desbuild Joint Venture v. Department of State, CBCA 3350, et al., 17-1 BCA
¶ 36,870, that a schedule used to measure delay “must reflect actual performance and must
comport with the events actually occurring on the job.”  Id. (internal quotation marks
omitted).  We added that potential delays which, in retrospect, “would have had no negative
impact upon the ultimate contract completion date do not affect . . . monetary liability” for
either party.  Id. (emphasis added); see also George Sollitt Construction Co. v. United States,
64 Fed. C1. 229, 241 (2005) (“[D]elays which do not affect the critical path of contract work
do not delay project completion.”).  
We look, in short, for the true critical path to completion (or, as here, to the state of
completion at termination).20  The parties’ expectations about the critical path are not
controlling.  “[T]he critical path of construction can change as a project progresses.”  Yates
Desbuild; see Norair Engineering Corp., ENG BCA 3804, et al., 90-1 BCA ¶ 22,327 (1989)
(“A contractor’s initial network analysis is not cast in bronze; it is constantly changing . . . .
The impact of each change, or delay, on the previously charted sequences must be fitted into
the [analyzed] network.”).  Because we must determine why a project lasted as long as it did,
we want to know the path to the latest work—including the critical work immediately
preceding that work, and just before that, and so on.  In Amec Foster Wheeler, for example,
we found no delay caused by activities that both sides’ experts said were on the
contemporaneous “critical path” but which did not affect the completion date, because later-
added work created an entirely new critical path.  We also declined in Amec to consider work
that could have become critical but did not, noting, “We limit our analysis to the critical path
delay that happened,” i.e., to the as-built record. 
19 The report of VA’s expert describes the methodology of CTA’s expert as
“impacted as-planned.”  We reject that characterization.
20 The point may seem obvious.  Industry professionals, however, often use
approaches other than “as-built critical path” to measure delay.  These include “time impact
analysis,” “collapsed as-built,” and “impacted as-planned,” each of which has subtypes. 
See generally AACE International Recommended Practice No. 29R-03 (Apr. 25, 2011),
discussed in Yates Desbuild.  The fact that courts and boards refer to “the critical path”
(singular) differentiates our backward-looking, historical approach from some others which
allow for multiple critical paths.  Mr. Mayo testified for VA, for example, “You can have
more than one critical path” because, in his view, the critical path includes all activities “with
zero or negative float.”

CBCA 5826, 6861, 6897, 7049 23
Other tribunals have endorsed tracing delay on the as-built critical path.  See K-Con
Building Systems, Inc. v. United States, 131 Fed. Cl. 275, 329 (2017) (“[D]efendant contends
that the critical path of performance should be based on an as-built, backward-looking
schedule.  The court agrees . . . .”); Sunshine Construction & Engineering, Inc. v. United
States, 64 Fed. Cl. 346, 368–69 (2005) (approving of testimony that “identified the critical
path on the as-built schedule” and “analyzed the cause for the change” when “activities . . .
[were] shorter or longer than planned”); Cogefar-Impresit U.S.A., Inc., DOT BCA 2721, 97-2
BCA ¶ 29,188 (finding that testimony focusing on “the actual critical path on the project”
was “a more reliable indication of the delay caused to the project” than was “a
contemporaneous time frame analysis”); Norair Engineering (“Whether [a] change or delay
affects the critical path must be determined on the basis of conditions existing immediately
prior to its occurrence[.]”); Blackhawk Heating & Plumbing Co., GSBCA 2432, 76-1 BCA
¶ 11,649 (1975) (“We have consistently tried to evaluate Appellant’s delay claims in terms
of the delay actually caused to project completion.”); cf. Imperial Construction & Electric,
Inc., ASBCA 54175, 06-1 BCA ¶ 33,276 (“[W]e are unable to determine the as-built critical
path or the scope of the alleged delays and which party is responsible in whole or part.”);
Santa Fe Engineers, Inc., ASBCA 24578, et al., 94-2 BCA ¶ 26,872 (“In light of the massive
effort of appellant’s delay expert . . . , appellant clearly could [and should] have
reconstructed and inputted the change order information at the proper times into the
. . . schedule had appellant prepared and maintained proper records[.]”), aff’d, 53 F.3d 347
(Fed. Cir. 1995) (table). 
We reject VA’s accusation that retrospectively adjusting as-built schedules based on
project documentation or other evidence necessarily turns the schedules into “fiction.”21 
There is, to be sure, a heavy presumption that regularly updated, contemporaneous schedules
are the best evidence of project progress.  E.g., Labco Construction, Inc., AGBCA 90-115-1,
94-2 BCA ¶ 26,910 (“The only schedule indicating a specific completion date . . . was
submitted with Appellant’s claim; the Board considers this an after-the-fact projection
only.”); Morganti National, Inc. v. United States, 49 Fed. Cl. 110, 138 (2001) (plaintiff’s
“‘total time’ analysis was wholly lacking in the face of contemporaneous schedule updates”
evidencing reasons for delays), aff’d, 36 F. App’x 452 (Fed. Cir. 2002) (table); Blinderman
21 We find no contractual significance or fault in CTA’s management of schedule
updates.  The specifications did not require “network analysis schedules” and instead
incorporated 48 CFR 852.236-84(c), Schedule of Work Progress (Nov 1984), which requires
an updated bar chart only “when individual or cumulative time extensions of 15 calendar
days or more are granted for any reason.”  We reject VA’s contentions that the record shows
a “lack of schedules throughout the project” and CTA’s “inability to maintain an updated
schedule.”  Whether CTA might be better positioned in this case as an evidentiary matter had
it kept its schedules up to date is a separate question.

CBCA 5826, 6861, 6897, 7049 24
Construction Co. v. United States, 39 Fed. Cl. 529, 585 (1997), aff’d, 178 F.3d 1307 (Fed.
Cir. 1998) (table).  At the same time, as we recognized in Yates Desbuild, forensic schedule
analysis is “both a science and an art” and “not a magic wand” but a set of techniques
requiring “the application of an expert’s well-considered judgment in evaluating the logic
underlying the various pieces of information that support the analysis.”  (Internal quotation
marks omitted.)  Cf. Santa Fe Engineers (reasoning that the contractor’s expert “could have
reconstructed” as-built information, had records been available).  
Here, CTA’s expert did not discard or ignore CTA’s eighteen contemporaneous
schedule updates.  He explained, instead, that he reviewed them for accuracy and forensically
recreated thirty-eight interstitial updates to chart an as-built critical path that he intended to
be consistent with the contemporaneous schedules, project records, and other evidence.  We
have no quarrel with the stated approach of tracing delay on an as-built critical path using
available, relevant evidence.
Rather, “the massive effort of appellant’s delay expert” to make up for the absence
of so much contemporaneous evidence, see Santa Fe Engineers, was not presented with
enough rigor or detail to overcome due skepticism about its reliability.  Boards have long
agreed with VA’s expert that “the usefulness of a [critical path management] schedule tends
to become suspect when the contractor and the owner have developed adversary interests. 
There are too many variables subject to manipulation to permit easy acceptance of the
conclusions of . . . consultants in such adversary circumstances.”  Nello L. Teer Co., ENG
BCA 4376, 86-3 BCA ¶ 19,326, quoted in Dawson Construction Co., VABCA 3306, et al.,
93-3 BCA ¶ 26,177.  Further, “[e]xpert opinions offered on certain matters that . . . are not
supported by the record tend[] to cast a shadow on the value of other opinions concerning
issues where underlying factual matters were less clear.”  Dawson Construction.  As
described above, CTA’s expert—relying to an unknown extent on hindsight “interviews with
the [CTA] project team” to which neither VA nor we are privy—blames multiple, lengthy
delays on circumstances for which we lack persuasive evidence that (1) VA was at fault22
and/or (2) the alleged source of delay delayed the project.23 
Although the shortcomings of the testimony in Santa Fe Engineers were more glaring,
we agree with that board when it wrote:
22 These include the structural steel submittal, piano hinges, and circuit setters
issues. 
23 These include the electrical specification and coordination studies, reverse
osmosis water system redesign, water supply to heat exchanger, generator pad, piano hinges,
circuit setters, and automatic door wiring issues. 

CBCA 5826, 6861, 6897, 7049 25
Appellant would have us rely on its expert’s opinion because of his
exhaustive study of the documentary record and discussions with appellant’s
witnesses.  We have little doubt that appellant’s delay expert had a vast
knowledge of this project.  However, his delay opinion was very
conclusionary.  He neither identified the specific underlying factual details he
utilized in coming to his opinion nor sufficiently explained how he used the
underlying data in reaching that opinion for each and every change and/or
claim at issue.
. . . [The expert’s] analysis was in most part based upon unidentified
information in change order and claims issue files and analysis of his [in this
case, reconstructed] as built schedule without demonstrating how he [made or]
utilized that schedule in reaching his conclusions for particular issues.
Santa Fe Engineers (emphasis added, citations omitted).  We see nothing to counter, and
some things that exacerbate, the natural suspicion that activities may have ended up on the
expert’s critical path only because CTA said in hindsight they were critical.  CTA also does
not show that its expert took account of the fact that the parties settled claims for delay costs
through September 2016.24  
Looking for delays for which we may equitably adust the contract price because such
delays (1) post-dated September 2016, (2) occurred on a convincingly shown, as-built critical
path, and (3) were VA’s fault, we find two: eight days of delayed handover of the next
construction space in July 2018 and 178 days from the stop-work order on August 6, 2018,
through the termination on January 30, 2019.25
CTA did not calculate a daily general conditions rate for a delay claim.  Its cost expert
testified, “Since we were using the total cost approach” the Board discussed and rejected
above, he determined only the “total [general conditions] costs that were incurred.  I could
have divided [general conditions costs] by the number of days and used that number, but
since we were using the total cost approach, I simply validated the total [general conditions]
amount to the job cost reporting.”  We could deny an equitable adjustment for delay for lack
of proof of costs, see Amec Foster Wheeler, but VA cites evidence that VA acknowledges
supports a daily rate, adjusted for previously settled delay claims, of “$610.24 per day,”
which we adopt in the absence of a more reliable daily rate for CTA.
24 To the extent that CTA argues that its major subcontractor experienced delays
distinct from those encountered by CTA, we have the same problems with the analysis.
25 Because these delays were total stoppages that delayed the project day for day,
the issue of whether CTA’s overall completion schedule was reasonable does not arise.

CBCA 5826, 6861, 6897, 7049 26
The record supports a daily field overhead rate for CTA’s major subcontractor of
$186, representing the burdened salary of the subcontractor’s superintendent.  Because the
two compensable delays stopped the project and affected the subcontractor day for day, we
grant an equitable adjustment for added subcontract costs of $34,596 (186 days x $186).
Unabsorbed Home Office Overhead
To obtain an equitable adjustment for unabsorbed home office overhead as
compensation for being on standby, CTA must initially show “a government-caused delay
of uncertain duration,” that “the delay extended the original time for performance” or
precluded the contractor from finishing earlier than scheduled, and that “the contractor [was]
on standby and unable to take on other work during the delay period.”  Nicon, Inc. v. United
States, 331 F.3d 878, 883 (Fed. Cir. 2003), quoted in Active Construction, Inc. v. Department
of Transportation, CBCA 6597 (Mar. 9, 2022).  As seen, CTA adopted a broad-brush
approach, asserting essentially that every day of Government-caused delay was a day of
standby.  As also noted, CTA reserved and did not release claims for Eichleay standby costs
in the May 2018 partial settlement of CBCA 5826.
Three time periods could arguably support recovery under the Eichleay formula based
on government responsibility: the alleged delay associated with enclosing the second floor
in 2015 and 2016, and the two delay periods in 2018 and 2019 previously found.  We do not
find that CTA was on standby, i.e., suffering an indefinite “interruption or reduction of the
contractor’s stream of income from direct costs incurred,” in either of the first two periods. 
See Interstate General Government Contractors, Inc. v. West, 12 F.3d 1053, 1057 (Fed. Cir.
1993).  Even assuming that VA’s direction to enclose the second floor before starting work
on the interior was a constructive contract change, CTA makes no attempt to show that CTA
was justifiably “uncertain” how long the enclosure work would take.  See Nicon, 331 F.3d
at 883.  During most of this period of the project, moreover, CTA’s monthly billings were
as high as they would ever be.  Such a record does not support a finding that CTA was on
standby in 2015 or 2016.  CTA cites no evidence, in any event, that it did not exacerbate this
alleged delay by failing to complete the enclosure, as VA repeatedly wrote was happening. 
Regarding the second delay—the eight days of delayed handover in July 2018—CTA cites
no evidence that it was uncertain how long that brief interruption would last or that CTA
stood ready to resume work with no “reasonable” opportunity to remobilize. 
See, e.g., Mech-Con Corp. v. West, 61 F.3d 883, 887 (Fed. Cir. 1995). 
The 178-day asbestos-related suspension preceding the 2019 termination was, by
contrast, a standby period.  The entire project was stalled for an uncertain duration at the fault
of VA, and VA cites no evidence that it assured CTA—which had received a cure notice two
years earlier and was still far behind the approved schedule—that it could leave the job and
remobilize without consequences.  “When a contracting officer issues a written order that

CBCA 5826, 6861, 6897, 7049 27
suspends work for an uncertain duration and requires the contractor to remain ready to work
immediately or with short notice, the contractor proves its prima facie case.”  BCPeabody
Construction Services, Inc. v. Department of Veterans Affairs, CBCA 5410, 18-1 BCA
¶ 37,013.  VA cites no evidence that CTA or its subcontractor could prudently have obtained
replacement jobs during this indefinite work stoppage.  See id.
CTA calculates a daily rate of its home office overhead allocable to this contract of
$1296.04.  VA does not contest this rate in the briefing.  For the major subcontractor, CTA’s
cost expert calculated two different home office overhead rates for two subcontracts.  CTA
does not elaborate in its brief on what the Board should do with those two numbers with
respect to discrete delay periods.  VA does not comment on the rates.  As CTA does not brief
a method to construct a blended or weighted daily home office overhead rate for the
subcontractor and does not tell us what subcontract work remained to be done as of the start
of the standby period in 2018, we use the lower daily rate of “$143.94 for the HVAC
[sub]contract.”  The total equitable adjustment for standby costs is $256,316.44.
Other Claims
For reasons given above, we find no basis in the record to adjust the contract price for
unpaid electrical subcontractor invoices, labor inefficiencies, or borrowing costs. 
Profit on Claims
The contract included 48 CFR 52.242-14, Suspension of Work (Apr 1984), which
excludes profit on claims under the clause.  See Roy McGinnis & Co., ASBCA 49867, 02-1
BCA ¶ 31,720 (2001).  Except for the water supply connection issue, as to which the parties
stipulated to quantum, we are adjusting the contract price only for periods of suspension and
not for changes and need not address profit.  CTA’s bid worksheets showed 9.42% profit on
work performed by subcontractors.  We add profit of $901.05 for the water supply change.
Performance Costs Up to Contract Price, Plus Settlement Costs
We began our analysis with a modified contract price of $9,286,542.70.  We have
found CTA entitled to equitable adjustments in a total amount of $414,883.40.  This raises
the contract price to $9,701,426.10.  VA has paid CTA $8,248,077.  This leaves room for
CTA to recover $1,453,349.10 in pre-termination costs up to the ceiling of the contract price. 
See 48 CFR 52.249-2(f), (g) (Alternate I).  The equitable adjustment amounts are recoverable
as such costs, leaving up to $1,038,465.70 ($1,453,349.10 - $414,883.40) still recoverable. 
We readily find additional costs exceeding that amount.  The parties stipulate, among other
things, that CTA incurred general conditions costs on the project of $1,123,221.  An
equitable adjustment granted here compensates CTA for $113,504.64 of that amount.  This

CBCA 5826, 6861, 6897, 7049 28
leaves $1,009,716.36 in incurred general conditions costs.  Applying the $1,009,716.36 for
general conditions against the previous $1,038,465.70 left under the cap leaves room for
CTA to recover another $28,749.34.  As noted, the parties stipulate to unpaid “additional
work” costs that exceed $28,749.34.  We may stop the analysis there, as the allocable costs
and payments discussed in this paragraph alone exceed the adjusted contract price.
CTA may recover the adjusted contract price of $9,701,426.10, minus payments to
date of $8,248,077, plus the stipulated settlement costs of $12,315.
Decision
The appeals are GRANTED IN PART in the amount of $1,465,664.10 before
interest.
Further Proceedings on Statutory Interest
The parties do not cite case law or other authority regarding the date or dates from
which interest should run under 41 U.S.C. § 7109 on the claim or claims on which we grant
relief in these consolidated appeals.  The presiding judge will schedule additional briefing
and the Board will issue a further decision on the accrual of statutory interest. 
   Kyle Chadwick               
KYLE CHADWICK
Board Judge
We concur:
   Allan H. Goodman            H. Chuck Kullberg            
ALLAN H. GOODMAN H. CHUCK KULLBERG
Board Judge Board Judge