GRANTED IN PART: February 22, 2016
CBCA 4957
HAMILTON PACIFIC CHAMBERLAIN, LLC,
Appellant,
v.
DEPARTMENT OF VETERANS AFFAIRS,
Respondent.
Sean Milani-nia and Ryan Stalnaker of Fox Rothschild LLP, Washington, DC, counsel
for Appellant.
Neil S. Deol, Office of General Counsel, Department of Veterans Affairs, Decatur,
GA, counsel for Respondent.
WALTERS, Board Judge.
Appellant, Hamilton Pacific Chamberlain, LLC (HPC), a small business entity, has
elected to proceed under the small claims procedure of Board Rule 52, Small Claims
Procedure, requiring a decision on the appeal within 120 calendar days from receipt of the
election. Under the small claims procedure, “[t]he presiding judge may issue a decision, which
may be in summary form, orally or in writing. . . . A decision shall be final and conclusive and
shall not be set aside except in the case of fraud.  A decision shall have no value as
precedent.” 48 CFR 6101.52 (2014).  The parties, HPC and the Department of Veterans
Affairs (VA), also both elected to have this appeal processed under Board Rule 19,
Submission on the Record Without a Hearing, and have each submitted briefs and relevant
documents which have been admitted into the record.


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Background
The instant appeal arises from a three-phase contract awarded by VA to HPC,
contract VA245-13-C-0069, for renovation of certain areas of buildings 217 and 500 at the
VA Medical Center in Martinsburg, West Virginia.  At issue is the pricing of two contract
modifications – modifications P00002 and P00006.  These modifications correspond to two
requests for proposal (RFPs) – RFP 4 and RFP 7.  Extensive negotiations between the
parties failed to yield agreement as to the equitable adjustments for either modification.  VA
issued modification P00002, expressly characterizing it as “unilateral modification” in the
February 28, 2014, email message to HPC that forwarded the modification document. 
Notwithstanding that characterization, the document contained a signature line on the first
page for “Paul Hamilton, VP,” HPC’s Executive Vice President, Mr. Paul Hamilton, as well
as the following release language on the document’s second page:
The consideration represents a complete equitable adjustment for all costs,
direct and indirect, associated with 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.
In his affidavit, Mr. Hamilton indicates he took the signature line with his name to be an
“instruction that the Contractor was required to sign the modification.”  Mr. Hamilton did
sign the modification document, but states that he did not notice the release language on the
document’s second page.  HPC maintains that Mr. Hamilton had no intention to waive
HPC’s claim for the amounts in dispute when signing modification P00002.  
Modification P00006, Mr. Hamilton asserts, was likewise provided to HPC for
signature, despite the VA’s awareness “that HPC disputed the costs included in that
modification.”  He signed that modification on July 25, 2014, but, upon discovering release
language on the second page (the same language that had appeared on the second page of
modification P00002), crossed it out and signed where the language had been excised.
HPC submitted a request for equitable adjustment (REA) in January 2015, seeking
additional reimbursement for the work under the two modifications.  The parties were
unable to come to agreement on the REA, and HPC submitted a “certified claim” to the VA
contracting officer on May 20, 2015, in the total amount of $99,372.89, to recover the
pricing differences between the amounts specified under the modifications and the amounts
it had proposed for each modification, as well as additional amounts of alleged damages for
delay to its contract performance purportedly caused by VA’s delay in issuing the two
modifications, plus $7426 allegedly incurred in preparation of the “certified claim.”   By

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letter dated July 14, 2015, the contracting officer issued a final decision denying the claim
in its entirety.  HPC timely appealed the denial to the Board.
Discussion
The parties are in agreement that HPC was entitled to an equitable adjustment for the
changes effected by modifications P00002 and P00006.  They disagree as to the amounts
due for each modification.  As a preliminary matter, VA asserts that any entitlement to
further compensation for modification P00002 was relinquished when Mr. Hamilton
executed that modification, including its release language, without noting any exceptions. 
Under the circumstances presented, it is not at all clear that HPC had any intention of
waiving further claim to adjustment under modification P00002, notwithstanding the release
language.  Mr. Hamilton disclaims any awareness of the inclusion of that language at the
time he signed the modification document, and the contracting officer’s having presented
modification P00002 as a “unilateral modification” belies the notion that both parties
intended it to represent a complete resolution of all claims regarding the additional work.
Having dispensed with the argument that further recovery here is barred by reason of
accord and satisfaction, we turn to proof of quantum.  In Nu-Way Concrete Co. v.
Department of Homeland Security, CBCA 1411, 11-1 BCA ¶ 34,636 (2010), the Board
provided the following guidance: 
An equitable adjustment encompasses the quantitative difference between the
reasonable cost of performance without the added, deleted, or substituted
work, and the reasonable costs of performance with the addition, deletion, or
substitution.  J.L. Simmons Co. v. United States, 412 F.2d 1360, 1370 (Ct. Cl.
1969) (citing Bruce Construction Corp. v. United States, 324 F.2d 516, 519
(Ct. Cl. 1963)).  “When a party seeks recovery of costs incurred, it has ‘the
burden of proving the amount . . . with sufficient certainty so that the
determination of the amount . . . will be more than mere speculation.”’ 
Benmol Corp. v. Department of the Treasury, GSBCA 16374-TD, 05-1 BCA
¶ 32,897, at 162,979 (citing Lisbon Contractors, Inc. v. United States, 828 F.2d
759, 767 (Fed. Cir. 1987) (quoting Willems Industries, Inc. v. United States,
295 F.2d 822, 831 (Ct. Cl. 1961)); Advanced Materials, Inc. v. United States,
54 Fed. Cl. 207, 209 (2002); Twigg Corp. v. General Services Administration,
GSBCA 14386, et al., 00-1 BCA ¶ 30,772, at 151,975). “It is true, of course,
that the proof of damages need not be exact.  A reasonable basis is enough –
but some convincing basis must be advanced.”  Twigg Corp., 00-1 BCA at
151,976. 

CBCA 4957 4
Id. at 170,698. 
In the present case, in terms of pricing the costs of the changed work, the work added
under both modifications and the work deleted in conjunction with modification P00006,
HPC posits that its pricing – which is based on actual costs incurred by HPC for its own work
and paid to subcontractors and suppliers for the added work, as well as actual credits
provided by its subcontractors for work deleted –  should trump the cost estimates developed
by VA and incorporated into its pricing of the two modifications, since the work has been
completed.  Case precedent clearly favors the use of actual costs for contract modifications
when work has been completed.  Indeed, we note that in another Board case, Reliable
Contracting Group, LLC v. Department of Veterans Affairs, CBCA 1539, 11-2 BCA
¶  34,882, VA itself put forth this very proposition: “The VA argues it should not have to pay
the labor costs because the claimed amount should be based on actual costs as opposed to
estimated costs, since the change has been performed.” Id. at 171,563.  In Reliable, VA
sought to avoid having to pay for any labor costs, where the contractor had not kept track of
actual labor costs as they were being incurred to perform changed work.  The Board, in that
instance, recognized that labor was part of the additional costs involved and found acceptable
the use of cost estimates to price that one cost element.  Id. (citing Environmental Safety
Consultants, Inc., ASBCA 53485, 05-1 BCA ¶ 32,903, at 163,019).  Here, as evidenced in
Mr. Hamilton’s affidavit, HPC kept track of its actual labor hours and costs and was able to
substantiate with actual cost records each of the other cost elements involved in the
performance of both modifications.  Under such circumstances, the Board finds HPC to have
borne its burden of proving quantum, at least insofar as it pertains to pricing the cost of
performing the new work.  
By the same token, aside from questions the Board might have regarding the manner
in which HPC quantified delay damages in conjunction with the two modifications, HPC has
failed to provide proof of entitlement to such damages.  HPC argues that it lacks funds to
afford a scheduling expert to prove critical path delay, and that the Board should  accordingly
apply a “jury verdict” approach when addressing delay damages.  Whether or not the
modifications, as HPC asserts, were aimed at correcting government design deficiencies –
and whether or not delays associated with obtaining direction to proceed with the new work
would thus be rendered “unreasonable” per se for purposes of recovery of delay damages
under the standard Suspension of Work clause, see, e.g., P.J. Dick Inc., VABCA 5597, et al.,
01-2 BCA ¶ 31,647, at 156,345, and cases cited therein – HPC has not explained, let alone
demonstrated, how any delay to the work under the two modifications caused its overall
contract performance time to be extended such that delay damages would even be
appropriate.  Here, without proof of some delay to the project’s critical path, with or without
the use of a scheduling expert, the Board cannot entertain alternative methods for quantifying
delay damages.  Such damages simply are not recoverable.

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Finally, in terms of the claim preparation costs HPC had sought, we note that HPC has
properly withdrawn its claim to such costs, acknowledging that their recovery is not
allowable under the provisions of the Federal Acquisition Regulation (FAR) Cost Principles,
FAR 31.205-47.  48 CFR 31.205-47 (2014).
Applying the above analysis to the dollars HPC had claimed, the Board holds that
HPC is entitled to a total of $59,013.96, which amount is derived as follows:
Modification P00002 (RFP 4) Cost Difference
(Government Estimates versus Actual Costs) $11,897.07
Modification P00006 (RFP 7) Cost Difference   47,116.89
Total Due $59,013.96
Decision
In light of the foregoing, the appeal is GRANTED IN PART.  HPC should be paid
$59,013.96.
_____________________________
RICHARD C. WALTERS
Board Judge