MOTIONS FOR SUMMARY RELIEF AND
 
PARTIAL SUMMARY RELIEF DENIED: May 9, 2007 
CBCA 439 
ACQUEST GOVERNMENT HOLDINGS U.S. GEOLOGICAL, LLC,
 
Appellant, 
v. 
GENERAL SERVICES ADMINISTRATION, 
Respondent. 
Michael J. Norton and Lindsey N. Rothrock of Burns Figa & Will P.C., Greenwood 
Village, CO, counsel for Appellant.   
M. Leah Wright, Office of General Counsel, General Services Administration, 
Auburn, WA, counsel for Respondent. 
Before Board Judges PARKER , GILMORE , and GOODMAN . 
GILMORE , Board Judge. 
This appeal involves a dispute between Acquest Government Holdings U.S. 
Geological, LLC (Acquest or appellant) and the General Services Administration (GSA or 
respondent), under a lease agreement which required appellant to construct a facility  and 
lease it to respondent for a period of twenty years.  The dispute centers around the 
construction of the facility’s animal holding rooms.  Appellant claims that (1) under the 
design specified in the solicitation for the animal holding rooms, it was impossible to meet 
the performance requirements for heating and ventilation of the rooms; (2) it was required 

   
 
       
  
   
 
      
 
 
  
      
    
      
    
    
 
   
2 CBCA 439 
to perform additional work and install additional equipment in an attempt to meet the 
performance requirements and subsequent design changes made by respondent; and 
(3) respondent owes the rent that it withheld while the additional work was being performed, 
and operating expenses during that period.  Appellant’s claim is in the approximate amount 
of $936,000. Appellant initially claimed that GSA also owed it additional costs under the 
Prompt Payment Act, but has since withdrawn this claim. 
Respondent answered that the design features in the solicitation and drawings were 
developed only to the 30% level, and that appellant was ultimately responsible for designing 
the facility to the 100% level; and that GSA is not liable for any extra costs appellant 
expended to bring the facility into compliance with the performance requirements. 
Respondent argues that its reduction of the rental amount was justified because GSA was 
unable to occupy the holding rooms while corrective work was being performed. 
The parties have filed cross-motions for summary relief. Respondent has moved for 
partial summary relief alleging that the material facts are undisputed and that it is entitled 
to judgment as a matter of law on the issues of whether GSA warranted the initial design 
for the animal holding rooms and whether the specifications were defective.  It contends that 
the undisputed facts establish that GSA, in its solicitation for offers, set forth specifications 
to a 30% design level, representing only a “design intent,” and that appellant was 
responsible for designing the building, including the animal holding rooms, to the 100% 
design level to meet the performance requirements. 
Appellant asks the Board to deny respondent’s motion for partial summary relief and 
to enter judgment in its favor, contending that the material facts are undisputed and show 
that (1) GSA specified design features for the animal holding rooms with which appellant 
had to comply; (2) appellant complied with the design specified and was unable to achieve 
the performance requirements; and (3) GSA subsequently changed the design requirements 
in order to achieve the performance requirements, which required appellant to upgrade the 
originally installed equipment. 
For the reasons below, we find that there are material facts in dispute and deny both 
respondent’s motion for partial summary relief and appellant’s motion for summary relief. 
Undisputed Facts 
Based upon the pleadings and documents in the appeal file and submitted in the 
parties’ cross-motions for summary relief, the following facts appear to be undisputed. 

       
 
 
 
 
 
  
 
  
 
  
 
 
3 CBCA 439 
1. On or about November 1, 2000, the Government issued Solicitation for Offers 
(SFO) no. 001-03 for the construction and lease of office and related space in the Natural 
Resources Research Park in Fort Collins, Colorado. Appeal File, Vol. 2-1, Exhibit 15 at 11. 
On December 6, 2000, the Government issued its first amendment to the SFO, which 
incorporated the design drawings.  Appeal File, Vol. 1, Exhibit 3. 
Offers were due on 
February 12, 2001. 
2. On February 27, 2001, GSA awarded a twenty-year lease to appellant for 
99,150 square feet of office space and 103 parking spaces at the research park at an annual 
rent of $2,468,835, which included the cost of tenant improvements of $3,999,771 amortized 
over the term of the lease.  The lease agreement incorporated the SFO and its amendments. 
The lease was to provide office space and laboratory and industrial space in a newly 
constructed building able to meet the requirements set forth in the lease.  The office and 
laboratory space included ten animal holding rooms, containing approximately 3979 square 
feet, which required special temperature, humidity, and air velocity control measures.  The 
parties’ dispute involves appellant’s construction of the animal holding rooms.  Appeal File, 
Vol. 2-1, Exhibit 15. 
3. The space was to be provided in a phased occupancy with the biological 
laboratories and animal facilities not requiring completion until July 1, 2002. 
Commissioning and testing of the laboratory systems could be completed post-occupancy and 
were required to be operational no later than August 1, 2002.  Appeal File, Vol. 2-1, 
Exhibit 15 at 241. 
4. Section 2.3 of the SFO, Preliminary Design Concept, states: 
All offers shall meet the requirements of this SFO and the associated 
schematic design drawings.  Any proposed variances must be submitted with 
a specific description in writing with the offer.  If the Government receives no 
variances, then the offer will be considered to meet all the requirements of the 
SFO and associated schematic.  
Appeal File, Vol. 2-1, Exhibit 15 at 16. 
5. Section 11.1 of the SFO, Drawings, states: 
Drawings will be provided as part of the second phase of the solicitation.  The 
drawings to be provided are design intent only.  The drawings represent the 
programming, space planning, architectural and important engineering aspects 
of the building.  Preparation of complete bid and construction documents is the 

 
 
  
  
 
     
  
 
 
 
 
   
 
 
4 CBCA 439 
responsibility of the successful offeror.  The drawings provided do not 
represent full engineering analysis or code compliance.  It will be the 
responsibility of the successful offeror to provide complete engineering 
analysis and code compliance.  
Appeal File, Vol. 2-1, Exhibit 15 at 205. 
6. The mechanical, electrical, and plumbing portions of the drawings contain the 
following language in the bottom corner: 
This drawing, with equipment and system component locations, types, and 
sizing is meant only to indicate design intent and approximate scope of work, 
the offerers [sic] engineers shall be responsible for the final scope definition 
and design, as well as final equipment selection, sizing, and performance. 
Note: These drawings are supplemental to the SFO and are not intended to be 
used separately. Drawings are for design intent only and are not to be used for 
construction.
 Appeal File, Exhibit 56. 
7. The architectural portion of the drawings does not contain the above  language. 
The architectural portion of the drawings, on the page titled “Lower Level--East Wing,” 
depicts the architectural design for the animal holding rooms with an attached note directed 
at wall construction.  The legend to that attached note stated: “Concrete masonry unit to 
structure with furring and gyp. on finish side to ceiling.  No gyp. or furring necessary @ 
animal ecology lab.”  Appeal File, Exhibit 56. 
8. Part Two of the SFO, Section 4, addresses buildout and construction.  Section 
4.1, Design Concepts Development, provides in pertinent part: 
After award, design development will be in accordance with the specific 
solicitation requirements.  The Contracting Officer shall have the right to reject 
any aspect of subsequent design development which varies from the concept 
and which would adversely affect the government’s use and occupancy of the 
space or the Government’s other interests in the building.  Evolutionary 
adaptations or changes can be proposed by either party to improve the design, 
subject to the Contracting Officer’s approval. 
. . . . 

 
 
   
  
 
      
     
 
 
 
 
 
     
   
 
   
  
 
  
5 CBCA 439 
Design development after award will not only be in accordance with the 
specific solicitation requirements, but also a direct extension of the original 
design concept.  The further design development shall retain all the 
fundamental and physical characteristics of that concept.  Neither party will 
unreasonably withhold such acceptance of demonstrably beneficial design 
adaptations of the concept which would not measurably increase the costs of 
construction, operation or occupancy of the space or building and which would 
not decrease the utility of the space or building to either party. 
Appeal File, Vol. 2-1, Exhibit 15 at 20. 
Section 4.1 further requires that the lessor submit 50%, 90%, and 100% design 
drawings for government review. The lessor was to submit drawings coordinated with the 
mechanical, electrical, and space drawings, and the 50% design submission was required to 
include calculations for structural analysis and for mechanical, plumbing, and electrical 
systems to justify sizes of the proposed systems.  The intent at the 50% design stage was to 
“progress the original design drawing information through design development process to 
the point where only construction details remain to be completed:  i.e., complete intended 
design of the facility shall be shown.”  The 90% design stage required appellant to submit 
a  complete set of construction documents, and the 100% design stage required appellant to 
submit the final design documents.  Appeal File, Vol. 2-1, Exhibit 15 at 20-21. 
9.  Section 4.5, Construction Inspections, provides that construction inspections 
will be made periodically by the contracting officer and/or a designated technical 
representative to review compliance with the solicitation requirements. It further provides, 
“The lessor will remain responsible for designing, constructing, operating and maintaining 
the building in full accordance with the requirements of this solicitation.” Appeal File, Vol. 
2-1, Exhibit 15 at 21. 
10. Section 4.8, Construction Documentation After Award, provides that upon 
request of the contracting officer, the following documentation must be provided: 
E. Heating and cooling peak load calculations. 
F. HVAC [heating, ventilation, and air conditioning] plans and equipment 
specifications----HVAC duct layouts, specific HVAC zones and HVAC zone 
controls.  All dampers including fire dampers and volume control dampers 
must be shown with ductwork ahead of the distribution terminal indicated in 
true size; automotive control diagrams showing sequence of operation of 

     
 
       
 
 
    
  
  
 
 
  
6 CBCA 439 
equipment; plans showing plumbing layouts and fixtures; riser diagrams for 
waste and vent lines; layout of equipment rooms showing all mechanical 
equipment; mechanical details; and complete equipment schedules.  All HVAC 
calculations shall be provided to show [how] equipment to be installed can 
meet the specifications for the building. 
. . . . 
O. Before the final inspection process, the Lessor must provide evidence 
of the “bake-out” period, the building permit, and inspection sign-off, final 
HVAC testing and balancing reports, and occupancy permits.  Rent shall 
commence when the space is accepted by the Government and a valid 
occupancy permits [sic] is received by the Government. 
Appeal File, Vol. 2-1, Exhibit 15 at 22. 
11.  Section 15010, Basic Mechanical Requirements, Paragraph 1(A)(2)(b), 
required that animal labs have a temperature controllable between 7 oC and 44 oC with 
humidity controllable between 20% and 90% relative humidity.  Appeal File, Vol. 2-1, 
Exhibit 15 at 154. 
12. Section 15010, Basic Mechanical Requirements, Paragraph (1)(F), provides 
in pertinent part: 
The Central Station Air Handling Unit for the Animal Ecology Laboratory 
shall provide the conditions of temperature and relative humidity  in the animal 
holding rooms necessary to support the various research projects.  The quantity 
of air supplied and exhausted shall be adjustable from five to twenty five air 
changes per hour, animal holding room temperature shall be adjustable from 
7oC (44.6 oF) to 44o C (111.2 oF), and room relative humidity shall be 
adjustable from 5% to 90%.  The unit shall be capable of conditioning the total 
required air from tempered outdoor conditions to the coldest, driest air 
condition required by any of the rooms.  The cold, dry air is ducted separately 
to the spaces and the selected amount metered to the rooms by constant 
volume, variable set point terminal units.  At each room, the air is then 
reheated and re-humidified to the required temperature and humidity. 
Constant volume, variable set point terminal units shall be used on the exhaust 
from each room to maintain a negative pressure relationship with the corridor 
outside of the rooms.  Motors with VFDs [variable frequency drives] shall 

      
   
 
  
 
  
         
   
  
 
 
 
  
 
 
7 CBCA 439 
drive both the supply fan on the Central Station Air Handling Unit and the 
exhaust fan on the roof. 1 
Appeal File, Vol. 2-1, Exhibit 15 at 155. 
13.  Before the best and final offers (BAFO) were submitted, appellant asked 
respondent for clarification regarding the humidifying units in the animal labs.  To respond 
to appellant, the contracting officer consulted another government employee as follows:  “Re: 
Humidifying units in the labs.  Drawings call for 10 units.  They are spec’d for rooms 2-4 
times larger than the labs. Could smaller units be utilized, as it would save $75,000­
$100,000?  Please advise. . . .  Need these answers ASAP. BAFO offers are do [sic] on 
Monday.”  The employee responded to the contracting officer as follows: “The labs require 
a tremendous amount of flexibility in the humidity control.  One way to achieve this is to 
oversize the units.  Have Acquest bid the humidity control in accordance with the 
documents.”  Appellant’s Cross-Motion for Summary Relief, Exhibit A. 
14. Section 01000 of the SFO, Technical Specifications, provides: 
The requirements indicated herein are to be interpreted as minimum quality 
standards to be followed.  It is the responsibility of the Offeror to ensure that 
the products and systems provided meet the requirements of the Project and 
that the systems will provide the intended function. The following technical 
specification is not intended to be a complete specification for the Project, but 
is included to identify specific areas where the Government has specific 
requirements.  No omission of the information from this technical specification 
is to imply such a system or part of a system or its installation is not required 
under the terms of the Contract. 
Appeal File, Vol. 2-1, Exhibit 15 at 35. 
15. Amendment no. 2 to the solicitation was issued on December 29, 2000, and 
incorporated into the lease agreement.  Question no. 56 of the amendment stated: “In general, 
do the minimum requirements of the SFO take precedence over the Schematic Drawings? 
1 In amendment no. 2 to the SFO, the relative humidity required in this section 
was changed from the originally specified “5% to 90%” to “20% to 90%,” to be consistent 
with paragraph 1(A)(2)(b) of that same section.   See Undisputed Fact 11. 

    
 
  
 
   
 
 
  
 
    
    
   
       
8 CBCA 439 
Please advise.”  The answer was, “The most stringent takes precedence.”  Appeal File, Vol. 
2-1, Exhibit 15 at 249. 
16. Section 1.5 of the SFO, Fees, required the successful offeror to pay $224,359 
to respondent as a “Design Cost Reimbursement Fee.” Appeal File, Vol. 2-1, Exhibit 15 at 
13.  Appellant paid the fee by check dated November 9, 2001.  Appellant’s Cross-Motion for 
Summary Relief, Exhibit B. 
17. The SFO included “Execution” paragraphs on every major system and 
subsystem of the building. The sections related to the animal holding rooms contained 
“Execution” provisions providing the method to be used to execute the design requirements. 
For example, Section 15010, Basic Mechanical Requirements, under Paragraph 1(A), sets 
forth, among other items, requirements for animal lab indoor minimum and maximum 
temperatures and humidity, design noise criteria, outside air ventilation, internal heat 
generation allowances for air conditioning load calculations, and the room ventilation rate 
per square foot.  Item 9 in that paragraph states: “No provisions for addition or reduction of 
humidity are necessary, except in the animal ecology area and as noted on drawings.” 
Paragraph 1(E)(3) states that the “[a]nimal holding laboratory ceiling exhaust grilles shall 
have “bag-out” filter housings to include standard 35% air filters.” Appeal File, Vol. 2-1, 
Exhibit 15 at 154-55.  
18. Through Supplemental Lease Agreement  no. 6, dated July 22, 2002, the parties 
established July 1, 2002, as the date of occupancy and set forth the rental schedule.  Appeal 
File, Vol. 2-2, Exhibit 21. 
19. As late as December 2002, the GSA contracting officer advised appellant that, 
to the best of her knowledge, there were no defaults on the part of the lessor under the lease. 
Appeal File, Vol. 7, Exhibit 57, Tab 12. 
20. In February 2003, GSA determined that the heating and ventilation systems in 
the animal holding rooms did not meet the performance requirements of the lease.  Appeal 
File, Vol. 7, Exhibit 57, Tab 16.  The problem was that adjacent animal holding rooms could 
not maintain opposite extreme temperatures at the same time. 
21. Under Supplemental Lease Agreement no. 9, dated March 10, 2003, it was 
agreed that GSA, beginning on March 1, 2003, would deduct, from the monthly rent, the 
amount payable for the 3979 square feet of laboratory space (the animal holding rooms) 
because the space was “unuseable.” The agreement stated that “[t]he square footage would 
be adjusted upward and added back to the total rent payable upon Lessor’s completion of the 

 
 
   
  
 
  
 
 
 
   
 
 
   
  
        
   
   
    
 
9 CBCA 439 
Heating, Ventilation and Air  Conditioning (HVAC) systems for the Wildlife Laboratories.” 
Both parties signed the agreement.  Appeal File, Vol. 2-2, Exhibit 24. 
22. To correct the problem, appellant proposed that insulation be installed.  This 
was rejected by GSA, stating that it would reduce needed floor space. Appeal File, Vol. 7, 
Exhibit 57, Tab 29.  The parties brainstormed on how to resolve the problem.  Appellant 
eventually had to install additional HVAC equipment in order to correct the problem. 
23. In November 2004, appellant hired the Farnsworth Group to test the 
mechanical equipment in the animal holding rooms to determine whether the requirements 
of the SFO were met.  The final report states that the original equipment met the equipment 
requirements of the SFO, but the installed equipment did not meet the performance 
requirements of the SFO.  For the report, Farnsworth reviewed the “SFO requirements 
(verbiage and 30% design documents) and the record drawings (100% construction 
documents).”  The report further noted: “ To meet the performance requirements, additional 
HVAC equipment was installed.  With the installation of new equipment, the performance 
does meet the requirements of the SFO.”  Appeal File, Vol. 9,  Exhibit 65 at 5. 
24. Appellant filed a claim with the contracting officer on October 14, 2005, in the 
amount of $914,093.96, for the rental amount deducted by respondent, the cost of  corrective 
work, and consultant costs.  It appears that respondent was still deducting the square footage 
of the animal holding rooms from the rent at the time the claim was filed.  Appeal File, Vol. 
6, Exhibit 48. 
Discussion 
Summary relief is appropriate where there is no genuine issue of material fact and the 
moving party is entitled to judgment as a matter of law.  Anderson v. Liberty Lobby, Inc. , 477 
U.S. 242, 247 (1986).  “Only disputes over facts that might affect the outcome of the case 
under governing law will properly preclude the entry of summary judgment.”  Id. at 248.  The 
moving party has the initial burden of informing the court of the basis for its motion and 
identifying those portions of the pleadings, depositions, affidavits, admissions, and answers 
to interrogatories, if any, which it believes demonstrate the absence of a genuine issue of 
material fact.  Celotex Corp. v. Catrett , 477 U.S. 317, 323 (1986). The non-moving party is 
required to point to “specific facts showing that there is a genuine issue for trial.”   Id. at 324 
(quoting Fed. R. Civ. P. 56(e)).  In considering summary relief, the court will not make 
credibility  determinations or weigh conflicting evidence.  Anderson, 477 U.S. at 249.  “All 
reasonable inferences and presumptions are resolved in favor of the non-moving party.”  Id. 
at 255. 

     
 
       
          
  
 
 
   
 
 
 
   
      
 
  
     
   
 
 
     
10 CBCA 439 
The mere fact that both parties have filed motions for summary relief does not warrant 
the granting of summary relief unless one of the moving parties proves that it is entitled to 
judgment as a matter of law upon facts that are not genuinely disputed.  We must review the 
evidence submitted in support of each cross-motion and consider each party’s motion on its 
own merits, taking care in each instance to examine the evidence in the light most favorable 
to the non-moving party.  United States v. Diebold, Inc. , 369 U.S. 654, 655 (1962). 
Respondent, in its motion for partial summary relief, relies primarily upon language 
in the SFO, including disclaimer language in the written specifications and on the drawings, 
to support its contention that the design in the solicitation was not intended to be the final 
design upon which appellant could rely.  Respondent contends that the undisputed facts 
establish that appellant was required by the lease to take the original conceptual design in the 
SFO and further design the facility to the 100% design level to meet the performance 
specifications.  Thus, it contends that there was no implied warranty that the original design, 
developed only to the 30% level, would meet the performance requirements. 
In support of its position, respondent relies on United States v. Spearin , 248  U.S. 132, 
136 (1914), where the United States Supreme Court enunciated the general principle that 
“[i]f the contractor is bound to build according to plans and specifications prepared by the 
owner, the contractor will not be responsible for the consequences of defects in the plans and 
specifications.”  Respondent’s Motion at 4. It, thus, argues that because respondent did not 
bind appellant to follow the initial design, a decision on the issue of warranty of design 
specifications should be rendered in its favor as a matter of law. 
Appellant, in its response to the motion and in its cross-motion for summary relief, 
agrees that the facts recited by respondent in its motion are not in dispute, since respondent 
has simply quoted provisions in the SFO and lease.  However, appellant sets forth additional 
facts which it contends are also “undisputed” and show that appellant had to construct the 
animal holding rooms according to detailed requirements in the SFO, which included the 
schematic drawings, and that GSA acted, prior to bid, and during construction, in a manner 
that led appellant to believe that it had to comply with the SFO and drawings that respondent 
drafted. 
Appellant acknowledges that the language on the electrical, mechanical, and plumbing 
design drawings states that they are for design intent only and the lessor is responsible for 
the final scope, definition, and design, and that they are supplemental to the SFO.  Appellant 
also cites language in the SFO, however, which states that: “All offers shall meet the 
requirements of this SFO and the associated schematic design drawings.  Any proposed 
variances must be submitted with a specific description in writing with the offer.  If the 
Government receives no variances, then the offer will be considered to meet all the 

 
     
 
 
  
    
  
  
   
     
 
  
       
 
  
   
  
11 CBCA 439 
requirements of the SFO and associated schematic.”  Appellant’s Cross-Motion at 4; see 
Undisputed Fact 4.  Respondent states that this provision was applicable only prior to award, 
so that all offers would be judged using the same criteria.  Respondent’s Response to 
Appellant’s Cross-Motion at 2-3. 
Appellant also points to Section 4.1 of the SFO, Design Concepts Development, 
which provides that: 
After award, design development shall be in accordance with the specific 
solicitation requirements.  The Contracting Officer shall have the right to reject 
any aspect of subsequent design development which varies from the concept 
and which would adversely affect the Government’s use and occupancy of the 
space or the Government’s other interests in the building.  Evolutionary 
adaptations or changes can be proposed by either party to improve the design, 
subject to the Contracting Officer’s approval. 
Appellant’s Cross-Motion at 4;  see Undisputed Fact 8.  This same section also provides that, 
“Design development after award will not only be in accordance with the specific solicitation 
requirements, but also a direct extension of the original design concept. The further design 
development shall retain all the functional and physical characteristics of that concept.”  
Appellant contends that the provisions above require any proposed change to be 
approved by the Government and that it was not allowed at its discretion to execute further 
design development that did not comply with the SFO and the schematic drawings. 
Respondent argues these provisions  give appellant the right to change design features on the 
drawings to meet the performance specifications and that this supports its position that the 
initial design did not provide a “road map” for performance. 
Appellant further cites numerous lease provisions showing that respondent specified 
a particular manufacturer for appellant to use and specified the sizes and placements required 
for various ventilation equipment.  Appellant has also produced documents showing that 
respondent reviewed appellant’s 50%, 90%, and 100% design submissions against 
requirements set forth in the written specifications and the drawings to determine whether 
appellant was in compliance with the SFO. 
Appellant further points to the fact that appellant paid  respondent  $224,359, with a 
notation on the check that it was a “Design Cost Reimbursement Fee.”  Appellant contends 
that the payment was to reimburse respondent for the cost of designing the building. 
Respondent has not addressed whether this fact is material to the dispute, or its legal 
significance. 

 
 
       
  
     
     
    
  
     
          
  
    
  
 
 
 
12 CBCA 439 
Appellant also disputes respondent’s characterization of the initial design as being 
only to the 30% design level. Appellant’s president stated, in an affidavit attached to 
appellant’s motion as Exhibit E, that the documents did not state the design was developed 
only to the “ 30%”  level, and further, that the drawings and SFO were developed far beyond 
any previous design-build project he had worked on for the Government.  He also stated that, 
at the time he submitted the cost of constructing the animal holding rooms, it would have 
been impossible to submit a cost without design documents upon which to base the cost, and 
that respondent encouraged appellant to use the design drawings provided as the basis for the 
offer. 
Appellant, in its motion, cites a number of amendments and changes to the SFO where 
respondent made either a correction, clarification, or addition to the original design drawings, 
which facts are not disputed by respondent.  Respondent, however, argues that most of the 
changes made to the design were proposed by appellant and that this is evidence that 
appellant knew that the initial design was not meant to be relied upon as the final design for 
the facility. 
Appellant, in its motion, additionally relies upon the Farnsworth Group report.  See 
Undisputed Fact 23. Appellant contends that the report evidences that 1) the SFO contained 
detailed requirements for the holding rooms’ equipment and installation; 2) appellant 
complied with those requirements; and 3) the compliance failed to produce the result 
intended--that adjacent rooms could maintain opposite extreme temperatures at the same 
time.
2 
Respondent, in its reply to appellant’s cross-motion, disputes that the Farnsworth 
Group report is evidence that the initial design, developed to the 30% design level, was 
warranted by the Government, since the report was examining the rooms at the 100% as-
built level, which it contends was appellant’s responsibility. 
Appellant, in support of its position, compares the facts in this case to those in J.E. 
Dunn Construction Co.  v. General Services Administration, GSBCA 14477, 00-1 BCA 
¶ 30,806, in which the Board held that aluminum mullion specifications included in an 
architect’s drawings for the fabrication and installation of a glass curtain wall were design 
2 Appellant, in its complaint, appears to argue that the specifications did not 
clearly state that adjacent rooms had to maintain and withstand extreme temperatures at the 
same time. However, appellant seems to have dropped this position in its motion. See 
Complaint at 3, 5. 

 
 
 
   
    
 
   
       
  
  
  
 
  
 
  
  
  
    
 
 
  
13 CBCA 439 
specifications rather than performance specifications, notwithstanding references to 
performance requirements, because they granted the contractor very little latitude to make 
changes.  Appellant’s Brief in Support of its Motion for Summary Relief, at 15-19. 
Respondent counters that Dunn is not supportive of appellant’s position because in Dunn the 
Government supplied  architectural  drawings developed to the 100% level and not to the 
30% level as in this case.  Respondent’s Response to Appellant’s Cross-Motion at 22-23. 
Appellant contends that the specifications were purely design specifications, while 
respondent contends that the specifications were purely performance specifications.   Under 
design specifications, the Government provides precise details of the materials and manner 
in which the work is to be performed, from which the contractor is not permitted to deviate. 
Under performance specifications, the Government sets forth an objective or standard to be 
achieved, and the contractor is to use its own ingenuity to select the means to achieve that 
objective or standard of performance while assuming responsibility  for meeting the contract 
requirements.  J.L. Simmons Co. v. United States , 412 F.2d 1360, 1362 (Ct. Cl. 1969). 
Whether a specification is a design or performance specification depends upon the obligations 
imposed by the specification, not upon the label given to it.  Blake Construction Co. v. United 
States , 987  F.2d 743, 746 (Fed. Cir. 1993).  Contracts may have both design and performance 
characteristics. Id. 
Appellant acknowledges that the lease required it to submit further design drawings, 
but argues that it could not execute further design development that did not comply with the 
SFO and the schematic design developed by respondent.  Respondent argues that the SFO 
stated performance requirements and allowed appellant to submit changes necessary to meet 
the performance specifications, and that this evidences that the initial design was not “set in 
stone,” as appellant contends. 
The build/lease scheme depicted in the SFO is not a model of clarity.  The disclaimer 
language in the SFO and on the drawings provides strong support for respondent’s position 
that appellant was not to rely on the conceptual design to construct the animal holding rooms. 
Also, there is no dispute that the lease required further design development by appellant, to 
a 100% design level.  On the other hand, however, there is evidence in the record supporting 
appellant’s position that it did not have unfettered discretion to change the initial design in 
order to meet the performance requirements, and that it had to work within the design 
parameters provided in the SFO. Respondent also stated, in its motion for partial summary 
relief, on page 4, that “[t]he complicated laboratory and animal holding rooms required that 
the Government provide a few more details in order to communicate its needs to the lessor 
than would normally be provided in a typical generic office build to suit.”  We view this as 
an admission by respondent that, for the animal holding rooms, the SFO specified more design 
requirements than would normally be provided. 

 
  
  
  
 
 
  
 
 
   
 
     
 
 
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14 CBCA 439 
Another fact that has not been put in context is that appellant paid respondent $224,359 
as a “Design Cost Reimbursement Fee.”  Appellant argues that this payment is evidence that 
the design was a part of the requirements, since it was a part of the cost to appellant to 
construct the facility.  Respondent did not address the legal implication of the payment. 
Respondent also argues that, because appellant could submit changes that it believed 
were needed in order to meet the performance requirements, and would receive an equitable 
adjustment if its costs were increased or decreased, this claim is one arising under the Changes 
clause, and is not an issue to be decided under the theory of warranty of design specifications. 
In considering a motion for summary relief, we cannot try issues of fact, i.e., weigh 
evidence or judge credibility, but only determine whether there are issues to be tried. 
Anderson, 477 U.S. at 249.  Here, there is a genuine dispute over whether appellant, in 
implementing its 50%, 90%, and 100% design requirements, had the discretion to change the 
initial design criteria supplied by respondent in constructing the animal holding rooms.  Also, 
respondent has not established that the design defect is one that could not have been readily 
discovered by appellant during its subsequent design development.  See J.E. Dunn, 00-1 BCA 
at 152,093.  Based upon the facts presented in the cross-motions, the law cited by the parties 
in support of their positions, and drawing all reasonable inferences in favor of the non-moving 
party, we conclude that appellant is not entitled to judgment in its favor as a matter of law, and 
respondent is not entitled to partial judgment, on the issue of warranty of design 
specifications, as a matter of law.  
Decision 
Appellant’s MOTION FOR SUMMARY RELIEF is DENIED and respondent’s 
MOTION FOR PARTIAL SUMMARY RELIEF is DENIED . 
BERYL S. GILMORE 
Board Judge 

 
15 CBCA 439 
We concur: 
____________________________ _________________________ 
ROBERT W. PARKER ALLAN H. GOODMAN 
Board Judge Board Judge