DENIED:  April 28, 2008 
CBCA 385 
MINNEAPOLIS COMMUNITY DEVELOPMENT AGENCY 
and THE CITY OF MINNEAPOLIS, 
Appellants, 
v. 
GENERAL SERVICES ADMINISTRATION, 
Respondent. 
Lawrence A. Moloney of Southern Minnesota Regional Legal Services, Inc., Saint 
Paul, MN, counsel for Appellant. 
Robert C. Smith, Office of General Counsel, General Services Administration, 
Washington, DC; and Paul J. Maxse, Office of Regional Counsel, General Services 
Administration, Chicago, IL, counsel for Respondent. 
Before Board Judges BORWICK, DeGRAFF , and GOODMAN . 
DeGRAFF , Board Judge. 
“Most of the disputes in the world arise from words.”  Morgan v. Jones , (1773) 
98 Eng. Rep. 587, 596 (K.B.).  As the appeal pending before us shows, words are no less 
troublesome in the contract disputes of today than they were when Lord Mansfield, Chief 
Justice was developing common law to govern commercial transactions.  
In March 1993, the General Services Administration (GSA) entered into a 
Development Agreement with the City of Minneapolis (the City) and the Minneapolis 

   
      
  
 
 
 
    
 
 
 
 
 
 
  
 
    
2 CBCA 385 
Community Development Agency (MCDA). The Development Agreement explained that 
MCDA would assemble a development site, remediate environmental contamination on the 
property, and convey the property to GSA in late November 1993.  After the conveyance, 
GSA would select a contractor to design and build a courthouse and an underground parking 
garage on the site.  When the parties entered into their agreement, they knew the site was 
contaminated with petroleum hydrocarbons.  
MCDA did not finish remediating the environmental contamination at the site by the 
end of November 1993, which led the parties to amend the Development Agreement in 
January 1994.  The amended Development Agreement said GSA would modify the 
design/build contract to require the contractor to develop an environmental contamination 
remediation plan and MCDA would pay the cost of the modification.  
In June 1994, MCDA told GSA it would not pay for a remediation plan based upon 
either of the two concepts developed by the design/build contractor, and an MCDA 
consultant subsequently developed a remediation plan.  In August 1994, GSA asked the 
design/build contractor to prepare a proposal to modify the contract to include the work 
required by MCDA’s consultant’s plan, which it did.  In September 1994, GSA and the 
design/build contractor reached a negotiated agreement regarding the price of the contract 
modification and MCDA deposited $2,420,295 with GSA to pay the cost of the 
modification.  Part of the cost of the modification included costs caused by delays to the 
design/build contractor’s progress which caused a ninety-day delay to the contract 
completion date. 
In April 1999, MCDA and the City sent the contracting officer a certified claim for 
$2,693,055.50, alleging GSA had breached the parties’ agreement by adopting a remediation 
plan which exceeded the scope of the required remediation, by failing to allow the City and 
MCDA to consult with the design/build contractor during the development of foundation 
design plans, and by not limiting the cost of the project.  The City and MCDA also said they 
were not responsible for any of the delay to the completion of the construction of the project 
or costs related to the delay.  
Appellants did not identify any differences, for purposes of this 
claim, between the rights and obligations of the City and those of MCDA.  
The contracting officer denied the claim and this appeal followed.  The Board held 
a hearing in May 2007, and the parties finished their briefing in January 2008.  

  
  
 
    
   
   
  
        
  
  
 
       
   
 
 
  
3CBCA 385 
Findings of Fact 
The parties sign a memorandum of understanding, discover environmental 
contamination, and draft a development agreement 
In 1990, GSA began the process of selecting a site for a new courthouse in 
Minneapolis, Minnesota, and part of this process involved discussions between GSA and 
MCDA.  Appeal File, Exhibits 1, 2. 1   In November 1990, MCDA drafted a memorandum 
of understanding which said MCDA would acquire a site and convey it to GSA at no cost. 
The parties realized the cost of the project would exceed the amount of federal funds 
available, and the draft memorandum said MCDA would provide funds, referred to as its 
project obligation, to help defray the project’s cost. The draft also said MCDA would not 
make any warranties or representations regarding environmental conditions at the site. 
Exhibit 2.  
The proposed project site was one city block square.  The Flour Exchange Building 
was located in the northeast corner of the block. To the west of the Flour Exchange 
Building was a parking garage which was used by the City. Within the basement of the 
garage were two underground fuel storage tanks. To the west of the Flour Exchange 
Building and to the north of the City garage was one additional underground fuel storage 
tank.  Two more underground tanks were located in the southwest part of the site, under the 
Court Park parking garage, which was a privately-owned parking garage.  The remainder 
of the site contained a surface parking lot and a three-story brick building.  In order for the 
proposed project to be constructed, the block would have to be cleared of all existing 
structures except the Flour Exchange Building.  Exhibits 2, 8, 37; Transcript at 19-20.    
In April 1991, MCDA met with STS Consultants (STS) regarding the proposed site 
and STS gave MCDA a proposal for providing geotechnical engineering services for the 
project.  The services were to include subsurface exploration and evaluation of the 
foundation bearing soils, and providing recommendations for foundation design and 
constructability of the project.  STS said that because of the potential for petroleum leakage 
from underground storage tanks, all soil samples would be screened for the presence of 
petroleum hydrocarbons. Exhibit 6.  STS is a firm with extensive experience in dealing with 
petroleum contamination and had an existing contractual relationship with MCDA to deal 
with contamination issues.  Transcript at 14.  
1   All exhibits are found in the appeal file, unless otherwise noted. 

 
          
       
 
  
     
   
     
          
  
 
 
 
 
 
 
 
    
4 CBCA 385 
The parties signed the final version of the memorandum of understanding in May 
1991.  The memorandum explained the parties intended to enter into a binding Development 
Agreement, and said the estimated date for MCDA to convey the property to GSA was 
January 1, 1993.  Exhibits 7, 9.  
In June 1991, STS sent its subsurface exploration report to MCDA, and MCDA 
provided the report to GSA. STS made nine soil borings in the course of its exploration. 
Although a complete copy of the report is not contained in our record, the portion we have 
shows STS found groundwater and possible soil contamination due to the presence of 
gasoline.  In addition, the report mentions the presence of several petroleum storage tanks. 
Exhibits 8, 51 at 816. 
MCDA prepared a draft Development Agreement and gave it to GSA in early July 
1991.  According to this draft, GSA, MCDA, and the City were aware of the existence of 
a gasoline release on the site and MCDA, would be responsible for remediating this 
condition. The draft said GSA’s obligation to accept conveyance of the property would be 
conditioned upon review and approval by GSA of environmental conditions, among other 
things, and established times within which GSA would have to make any objections to such 
conditions.  If MCDA could not cure the objectionable conditions, GSA could terminate the 
agreement, waive its objections, or accept conveyance of the property. If GSA accepted the 
property, the draft said the amount of money needed to cure the conditions would be taken 
into consideration when determining the amount of MCDA’s project obligation.  The draft 
Development Agreement said MCDA would not make any warranties or representations 
regarding environmental conditions at the site, except to disclose any actual knowledge it 
had of such conditions.  Exhibit 9. 
In mid-September 1991, GSA supplied MCDA with its proposed changes to the draft 
Development Agreement.  Exhibit 12.  Among other things, GSA wanted to include 
language which said that before MCDA conveyed the property to GSA, MCDA would 
ensure remediation of “any and all” environmental hazards and which also said such hazards 
included, but were not limited to, gasoline and other hydrocarbon leaks discovered during 
initial soil testing.  Also, GSA wanted the agreement to provide that if GSA objected to 
conditions which MCDA could not cure within ninety days, GSA could decide to accept 
conveyance of the property if the amount required to correct the condition was added to 
MCDA’s project obligation.  Exhibit 12 at 290.  
By the end of December 1991, the parties had agreed upon several additions to the 
text of the draft agreement.  MCDA acknowledged the existence of an adverse 
environmental condition consisting of a release of gasoline and/or other hydrocarbons. 
MCDA said before it conveyed the property to GSA, it would assure remediation of this and 

   
     
    
 
 
       
 
 
 
  
 
 
  
  
 
      
 
 
 
 
5 CBCA 385 
any other adverse environmental condition “theretofore identified” by GSA.  Also, at closing 
MCDA would deliver an agreement to hold GSA harmless from liability in connection with 
the existence or remediation of such conditions.  Exhibit 14. 
STS completes its remedial investigation and corrective action design 
On June 12, 1992, STS provided MCDA with the results of its remedial investigation 
of the building site.  In order to prepare this report, STS made eight additional soil borings 
in January and February 1992.  The results of the investigation showed the presence of 
petroleum-impacted soils and groundwater perched on a clay layer above bedrock.  STS said 
the affected area appeared to be limited to the northeast part of the site.  STS’s report 
included a diagram of the contour of the groundwater.  STS recommended removing the 
underground storage tanks, as well as treating the petroleum-impacted soils and the 
contaminated groundwater.  Regarding affected soils, STS recommended excavating and 
treating contaminated soil which had already been identified and which would be identified 
when the storage tanks were removed.  STS recommended stockpiling the excavated 
affected soil, which it expected to be approximately 400 cubic yards, and transporting it to 
a treatment facility. In addition, STS recommended installing a soil vapor extraction system 
to remove petroleum vapors from affected soil which remained at the site.  Regarding 
affected groundwater, STS recommended creating a collection sump and installing a 
pumping system to remove the groundwater from the saturated sands.  The extracted 
groundwater would then be pumped to treatment equipment.  The proposed treatment 
equipment could involve transporting the groundwater to an approved disposal location, 
using charcoal filters to remove the contaminants on site, or using an air stripper equipped 
with a charcoal filter to remove contaminants from a discharge stack.  STS’s 
recommendations were contingent upon gaining access to the site after demolition of the 
existing structures on the property, when excavation could begin.  Exhibits 18, 51 at 816. 
MCDA provided the STS report to GSA in early July 1992.  Exhibit 506. 
On October 19, 1992, STS gave MCDA its corrective action design for the project 
site.  Exhibit 19.  The ongoing operation of the City parking garage limited the area which 
STS could affect with its design.  Transcript at 23-24.  STS decided it was not feasible to 
remove and treat all of the affected soils. Also, STS decided bioremediation would not be 
the most cost-effective treatment method when taking into account the physical constraints 
at the site.  Exhibit 20.  Bioremediation is the process by which, over time, petroleum 
contamination is broken down by naturally-occurring bacteria in the soil, which are 
sometimes assisted by the introduction of additional oxygen and nitrogen.  Transcript at 44­
45.  The process requires that the site conditions allow some control over factors such as 
moisture, nutrients, soil chemistry, and permeability.  Exhibit 19.  

    
          
  
  
  
   
 
  
  
   
  
 
  
         
    
 
 
6 CBCA 385 
STS’s design included a soil vapor extraction system to remediate the soil on the site. 
The soil vapor extraction system consisted of wells which would be used to pull air and 
volatilized petroleum compounds through the contaminated soil.  STS said this system 
would “remove residual vapors from the soil so that when the groundwater treatment is 
complete, no residual compounds will be contained within the soil.”  To remediate the 
groundwater at the site, STS’s design included a groundwater sparging, extraction, and 
treatment system.  Exhibit 19 at 426. STS determined the majority of contaminants at the 
site were in the groundwater and the extraction system consisted of wells from which 
contaminated groundwater would be pumped.  Groundwater extraction would be the primary 
means of contaminant removal at the site.  The groundwater sparging system consisted of 
wells through which air would be forced into the contaminated soil below the contaminated 
groundwater.  Sparging would be used as a form of treatment for the groundwater if the 
recovery rates at the extraction wells were limited and also used as a means of pretreating 
extracted water.  STS proposed to install its system in the basement level of the existing City 
garage at the site, to operate the system for approximately four months, to remove it when 
demolition began, and to reinstall the system after demolition if remediation was not 
completed. The estimated cost of this system was approximately $51,000.  Exhibit 19; 
Transcript at 223-24.  
A few days later, MCDA provided STS’s corrective action design to the Minnesota 
Pollution Control Agency (MPCA).  Exhibit 20.  MPCA reviewed the STS reports and 
recommendations, and approved the corrective action design with modifications and 
comments on February 22, 1993. MPCA said the full extent of soil contamination and 
groundwater within the perched aquifer had not been fully determined, and additional work 
would be required by MCDA in order to determine the full lateral and vertical extent of the 
groundwater.  MPCA also provided specific guidance as to cleanup goals and monitoring 
requirements.  MPCA understood a final design for the new courthouse had not yet been 
selected, and knew the design could determine the amount of soil excavation which would 
be required.  MPCA said it appeared STS’s proposed corrective action design would be used 
“at least as a temporary remediation effort depending upon the final outcome of the building 
design process.”  Based upon conversations with STS, MPCA said it appeared that 
excavation to bedrock might be necessary. If so, MPCA said it would ask that the clay 
deposit on top of the bedrock not be excavated because the clay acted as a barrier to the 
migration of petroleum contamination. Also, deep excavation could require dewatering of 
contaminated groundwater.  MPCA cautioned that if deep basements were to be constructed, 
“the potential for migration of petroleum vapors into these deep structures should be 
considered in the building design” because the contaminated clay deposit would remain at 
the site.  Exhibit 21. 

    
 
 
 
 
 
 
 
       
 
   
    
     
  
 
  
 
      
7 CBCA 385 
MPCA also said its approval of the corrective action design qualified MCDA’s 
cleanup costs to be eligible for reimbursement from the Minnesota Petroleum 
Reimbursement Fund (the Petrofund).  Exhibit 21; Transcript at 43.  The Petrofund was 
established by the state in the mid-1980s to reimburse owners of underground storage tanks 
for the cost of cleaning up their sites.  In the beginning of the program, MPCA required the 
near-total cleanup of contaminated sites.  As time went on, however, MPCA became the 
owner of orphaned contaminated sites and it became much more aware of the cost of total 
remediation.  As a result, it began to allow some contaminants to remain in place if there 
would be no affect upon future users of the groundwater or the soils.  MPCA realized that 
instead of spending hundreds of thousands of dollars to remediate a site, it could allow 
bioremediation to occur over a period of time.  Transcript at 43-44.  
GSA issues a request for proposals and the parties sign the Development Agreement 
On November 27, 1992, GSA issued a request for proposals (RFP) for designing and 
constructing the project. The deadline for submitting a proposal was February 16, 1993. 
Exhibits 25 at 613, 46 at K-1. 
GSA, MCDA, and the City entered into the Development Agreement on March 19, 
1993.  The agreement said that after remediation of environmental conditions, MCDA would 
convey title to the project site property to GSA. The project to be designed and built by the 
GSA contractor would include a courthouse with an underground parking garage and a 
second underground parking garage beneath a public plaza.  GSA would lease the second 
garage to the City for operation as a municipal parking garage.  Approximately $90 million 
in federal funds and $9.6 million in MCDA funds (the project obligation) would be used for 
the project.  Exhibit 22.  
The Development Agreement said GSA, MCDA, and the City were “aware of the 
existence of petroleum hydrocarbons on the Property, the remediation of which for all 
purposes of this Agreement shall be the responsibility of MCDA.” Exhibit 22 at 468, 470­
71. Section 4.03 of the agreement said the extent of GSA’s obligation to accept conveyance 
of the property was conditioned upon GSA’s review and approval of, among other things, 
environmental matters and conditions.  After the agreement was signed, MCDA was to carry 
out at its expense soil, environmental, and other tests as MCDA and GSA deemed 
reasonably necessary.  The agreement explained how the parties would proceed if GSA 
objected to any of the test results. Exhibit 22 at 477. MCDA agreed to clear the property 
of all structures and improvements and to convey it to GSA “ready for commencement of 
construction of the Project.”  Exhibit 22 at 478, 589-90.    

 
 
  
  
  
 
      
 
 
 
 
    
     
8 CBCA 385 
Section 4.03(b)(iv) of the Development Agreement provided: 
The MCDA acknowledges the existence on the Property as of the date of this 
Agreement of an adverse environmental condition consisting of petroleum 
hydrocarbons discovered in the course of initial soil testing.  Prior to 
conveyance of the Property to GSA the MCDA shall assure remediation of all 
adverse environmental conditions theretofore identified by MCDA, the City 
or GSA.  At closing the MCDA will deliver an undertaking to hold harmless 
and defend GSA from liability in connection with the existence or remediation 
of adverse environmental conditions theretofore identified by MCDA, the City 
or GSA. 
Exhibit 22 at 479.  
Section 8.04 read as follows: 
Cost Containment.  GSA’s mission is to provide quality space in a timely 
manner and to ensure the best value to the government and the public.  GSA 
will strive to maximize the efficiency and effectiveness of its procurement 
process in order to deliver the greatest value to the public and minimize the 
construction cost.  This concern shapes GSA actions throughout the 
procurement, construction and operation of a Federal facility.  GSA will 
solicit the assistance of MCDA and the city in cooperative efforts to minimize 
Project and Plaza Garage costs, and thereby GSA, MCDA and City 
expenditures, throughout the life of the Project and Plaza Garage. 
Exhibit 22 at 498.  
The Development Agreement contained a timetable which contained estimated dates 
for upcoming events, such as the beginning of demolition activities and the receipt of best 
and final offers (September 1, 1993), closing the conveyance of the property to GSA 
(November 23, 1993), award of the design/build contract (December 15, 1993), and 
completion of the project (June 15, 1996).  Exhibit 22 at 537. 
STS’s corrective action design is implemented and the remediation effort begins 
In March or April 1993, STS made another exploration of the site and drilled four 
additional borings.  Exhibit 51 at 817.  The STS system for remediating conditions at the site 
was put in place by a well drilling company in April and began operating in mid-May 1993. 
Exhibit 28 at 645.  The system contained four drilled wells. Three of the wells were to be 

 
   
     
       
 
 
 
 
  
  
 
 
  
   
 
   
 
   
 
   
9 CBCA 385 
used for the combined tasks of vapor extraction, air sparging, and groundwater extraction, 
and one well was to be used for vapor extraction and air sparging.  The system also 
contained pumps, a blower, a compressor, a groundwater treatment vessel, and an electrical 
control system. Exhibit 28 at 639-42. When STS designed and installed this system, it did 
not know the Development Agreement called for MCDA to convey the site to GSA in 
November 1993.  Transcript at 102.  
At the end of June, in accordance with the Development Agreement, GSA noted its 
objections to the presence of the underground storage tanks and the presence of gasoline and 
soil contamination due to leaks from the tanks.  Exhibit 23.  In early August, MCDA 
responded to GSA’s objections and said the tanks would be removed as part of  MCDA’s 
site clearance activities in September.  MCDA also told GSA of MPCA’s approval of the 
STS corrective action design. In addition, MCDA said it expected the corrective action 
being taken would be completed by the closing date.  Exhibit 26.  
In late September 1993, the STS remediation system was removed to make way for 
demolition of existing structures on the site. One underground storage tank was removed 
from the site on October 15.  Exhibits 35,  37 at 676.  In a supplemental report dated 
October 21, STS recommended the system be reinstalled after demolition was complete 
because its analysis of groundwater showed its contamination had not been sufficiently 
remediated when the system was removed.  Exhibit 28 at 649-50.  
In mid-October, MCDA asked GSA if it intended to award the design/build contract 
on December 15, as scheduled in the Development Agreement.  If GSA planned to delay the 
award of the contract, MCDA wanted to delay the conveyance of the property to GSA, 
which was supposed to occur in late November.  MCDA said it was in the process of 
evaluating the results of its remediation efforts and might require added time to clean up the 
site to MPCA’s standards.  Exhibit 27.  
In response, GSA expressed its concerns to MCDA about the timing of the pollution 
remediation effort.  GSA explained it could not award the design/build contract before it had 
title to the property, and could not take title to the property until the adverse environmental 
conditions were remediated.  Also, GSA noted that closing the conveyance of the property 
was supposed to occur fifteen days prior to contract award, which was scheduled for 
December 20. GSA said it needed to resolve this issue as soon as possible, because it might 
affect GSA’s ability to award the design/build contract on schedule.  Finally, GSA asked 
MCDA when it anticipated completing the remediation work.  Exhibit 30.  
GSA spoke with MCDA about these concerns on November 8, and again on 
November 10. Exhibits 30, 509.  On November 10, GSA said MCDA’s suggestion to delay 

 
 
 
  
   
  
 
   
 
 
      
    
   
   
       
 
 
      
 
 
  
  
10 CBCA 385 
the closing date was an unworkable alternative because it would seriously affect the 
project’s schedule.  GSA said it had worked to keep the project on schedule and asked 
MCDA to expedite the remaining demolition and remediation work and do whatever it 
needed to do in order to convey the property to GSA at the end of November.  MCDA said 
it would have additional information about the remediation efforts at the end of the 
following week, and GSA asked MCDA to share its information with GSA.  GSA 
emphasized the importance of receiving a clean site in accordance with the Development 
Agreement.  Exhibit 509. 
Two underground storage tanks were removed from the site on November 11, 1993. 
Although the soil appeared to be clean, it emitted a rather strong odor of petroleum when 
it was disturbed.  The depth of soil contamination was considerably greater than GSA’s 
architect had been led to believe by MCDA in a conversation the previous week.  GSA’s 
architect was The Leonard Parker Associates (TLPA), which provided GSA with design and 
construction quality management services for the project.  Exhibits 29, 31; Transcript at 342. 
STS said remediation would be completed thirtyto sixty days after November 23, which was 
apparently when it anticipated reinstalling its system.  The remaining underground storage 
tanks were scheduled to be removed on November 15.  Exhibits 31, 537.  
On November 15, 1993, MCDA, MPCA, STS, the demolition contractor, and the 
well drilling contractor met to discuss the reinstallation of the remediation system.  They 
decided to install several new system components, including a soil vapor extraction intercept 
trench to capture the off-site migration of petroleum vapors and nineteen air sparging points 
to force air into the groundwater.  In addition, the initial STS plan was to excavate all of the 
contaminated soil around two underground storage tanks in the southwest part of the site. 
However, when the tanks were removed, all of the contaminated soil could not be removed 
without collapse of the adjacent street and sidewalk. Therefore, STS planned to install the 
soil vapor extraction system to treat the soil which could not be removed.  Also, accessible 
contaminated soils above the water table were to be excavated, a forced air system was to 
be put in place to treat contaminated soil which had been excavated, and a large-diameter 
groundwater extraction well was to be installed. Due to a threat of litigation by the Flour 
Exchange Building, no groundwater had been extracted since demolition had begun. 
Exhibit 37 at 681-87; Transcript at 41.  
Demolition work on the site was completed on November 19, 1993. On 
November 24, STS reinstalled the venting and air sparging system, with the additions and 
modifications discussed on November 15.  Exhibit 537; Transcript at 48-49.  Because 
MPCA had attended the November 15 meeting, because MPCA typically takes months to 
approve a remediation plan, and because STS understood MCDA wanted to maximize the 
amount of remediation at the site before it was conveyed to GSA, STS did not seek MPCA’s 

 
     
    
 
     
  
  
  
 
 
  
  
   
   
     
  
     
  
 
  
 
11 CBCA 385 
formal approval for the additions and modifications to the remediation system.  Transcript 
at 49.  STS did not believe it needed to obtain MPCA’s approval at this time.  Transcript at 
54-55.  
On November 23, the day before STS reinstalled its system, GSA, MCDA, and 
MPCA representatives participated in a conference call to discuss remediation. In a letter 
sent to MCDA the next day, GSA said it had serious concerns regarding MCDA’s efforts 
to fulfill its Development Agreement obligations.  During the conference call, GSA 
understood MCDA and MPCA to suggest it was GSA’s responsibility to remediate the 
adverse conditions before the property was conveyed to GSA. GSA disagreed and said the 
suggestion was contrary to MCDA’s commitments to GSA.  Until recently, GSA said, it 
understood remediation efforts were moving forward and the property would be conveyed 
to GSA at the end of November.  GSA said it would not take title to the site in its current 
condition and could not award a design/build contract before it had title and received the 
financial contribution from the City and MCDA.  GSA pointed out the lack of timely 
remediation could jeopardize the design/build procurement.  GSA said it was inappropriate 
for MCDA to suggest GSA either assume responsibility for excavation or remediation of soil 
and groundwater, or amend the RFP and place additional limitations or obligations upon 
prospective design/build contractors.  GSA said the RFP did not include restrictions on 
excavation of the site and the entire site had to be available for development without any 
restrictions on the depth of excavation or foundation work. GSA wanted the City and 
MCDA to tell GSA what they intended to do to resolve the remediation issue.  Exhibit 32. 
An MCDA memorandum dated November 30, 1993, summarizes a discussion among 
GSA, MPCA, and MCDA.  In response to the RFP, some offerors proposed excavating the 
entire site down to bedrock.  MPCA said if there was no longer any contamination at the 
site, there would be no problem with excavating the clay over the bedrock and removing the 
groundwater, so long as MPCA approved the excavation method.  In addition, caissons 
drilled to bedrock would be acceptable if they were sealed.  GSA said it had not provided 
the STS corrective action design to offerors because it assumed MCDA would turn over a 
clean site.  However, MCDA understood GSA was considering making information 
regarding the remediation effort available to offerors, reopening negotiations, and asking for 
new best and final offers. MCDA proposed to continue soil and groundwater venting and 
sparging, and said it expected to reach MPCA approval limits in two weeks.  Exhibit 511. 
On December 3, 1993, MCDA responded to GSA’s November 24 letter.  MCDA said 
it fully accepted its responsibility for remediation as required by the Development 
Agreement.  It also said completing the remediation of a petroleum release could take an 
extended period of time if, as at the project site, groundwater was affected.  MCDA 
underscored that its obligation was to assure remediation was accomplished.  MCDA said 

  
   
      
 
  
  
  
    
 
 
   
  
 
     
        
      
       
12 CBCA 385 
discussions among GSA, MCDA, and MPCA after November 24 appeared to have 
established that a remediation plan could be in place which would have necessary water and 
soil remediation activities completed off-site or in some other manner which would not 
require GSA to amend the RFP.  MCDA said it would bear the cost of such remediation 
activities.  Exhibit 35. 
Representatives from GSA, MCDA, MPCA, STS, TLPA, and Sverdrup Corporation 
(a consultant to TLPA) met on December 16 to discuss conditions at the site, remediation 
efforts, and conveyance of the property to GSA.  STS said it had excavated contaminated 
soil which would have to be cleaned and taken to a disposal site.  Soils above groundwater 
could be treated within thirty to sixty days using the current STS system.  However, soil in 
contact with groundwater would continue to be affected.  Between 250,000 and 1,000,000 
gallons of groundwater on the site were near the Flour Exchange Building and pocketed 
above the clay layer.  STS was air sparging the water, but could not extract the water due to 
a threatened suit by the Flour Exchange Building and this meant the remediation process was 
going to take longer than expected.  GSA was ready to award a contract and did not believe 
offerors should have to pay for any additional design effort due to the current conditions at 
the site. MCDA acknowledged that developing a remediation system after award would be 
a change to the contract, and said it would pay for added costs caused by the change. 
MCDA and GSA agreed that the Development Agreement would be amended to say GSA 
would inform the design/build contract offerors that the contractor would be required, after 
award, to design a remediation system together with GSA, MCDA, and MPCA.  The cost 
of designing the system and associated administrative costs would be borne by MCDA. 
Exhibit 36.  
On December 20, 1993, STS provided MCDA a report regarding the activities it had 
undertaken at the project site during and immediately after demolition.  The system 
components mentioned on November 15 were in place and operating, except STS had not 
been able to extract and treat groundwater.  During installation of the remediation system 
components, approximately 590 cubic yards of contaminated soil were removed in addition 
to the approximately 160 cubic yards which were removed from around four of the storage 
tanks. STS had recently made twenty-three additional soil borings, which showed there 
were several small areas where contaminated soils remained in place.  Exhibit 37.  
GSA amends the RFP, the parties amend the Development Agreement, and MCDA 
conveys the property to GSA 
GSA issued amendment 12 to the RFP on December 21, 1993.  The amendment said 
GSA was reopening negotiations and established January 11, 1994, as the revised date for 
best and final offers.  The amendment said there were at least two areas of contamination 

 
    
 
          
 
     
 
 
   
        
 
   
   
      
 
 
  
    
   
        
   
   
 
 
13 CBCA 385 
at the site, explained the City and MCDA were working to remediate these problems, and 
said the exact condition of the site would not be known at the time the design/build contract 
was awarded.  The amendment also said any further remediation efforts and/or additional 
foundation work required to be performed by the design/build contractor would be 
addressed through a contract modification. Also, before construction, if required, the 
contractor in consultation with GSA, the City, MCDA, and MPCA would submit plans for 
design modifications related to foundation work and remediation efforts so the selected 
design could be constructed on the site without worsening any existing adverse 
environmental conditions and/or to allow remediation efforts to continue for as long as they 
were needed.  Amendment 12 included three reports prepared by STS regarding conditions 
at the site and one report prepared by the contractor who removed the underground storage 
tanks. Exhibit 38. GSA issued amendment 13 to the RFP on December 29, to provide 
offerors with a copy of the STS report dated December 20.  Exhibit 40.  
In early January 1994, GSA provided the City and MCDA with a draft amendment 
to the Development Agreement.  The draft said the Development Agreement required 
MCDA to remediate all adverse environmental conditions identified before the property was 
conveyed to GSA. It also said that after the parties signed the Development Agreement, they 
became aware of contaminants other than petroleum at the site. The draft amendment said 
the parties realized the conveyance of the property and construction of the project would be 
unduly delayed if they had to wait until MCDA remediated all adverse environmental 
conditions at the site.  Therefore, said the draft, the parties wanted to amend the 
Development Agreement to provide that MCDA would fund remediation of all adverse 
environmental conditions and related site preparation after award of the design/build 
contract.  Exhibit 41. 
GSA’s draft amendment to the Development Agreement said GSA would issue a 
contract modification telling offerors of the conditions at the site.  After award, GSA would 
tell the contractor that its development of foundation design plans would be prepared in 
consultation with GSA, MCDA, the City, and MPCA, in order to address the remediation 
effort to be undertaken by the contractor and/or MCDA to remove contaminated soil; to 
remove, treat, and/or seal the property from contaminated groundwater; and/or to isolate the 
site from adjacent properties. The foundation design plans would be made available to the 
City, MCDA, and MPCA for review, consultation, and comment.  MCDA would pay all 
costs reasonably associated with the remediation effort. The draft also said the contractor 
would not be required to alter its awarded design, the remediation plan, or the project 
schedule in order to achieve a less costly remediation effort.  GSA would issue a contract 
modification to carry out the remediation efforts in conjunction with the excavation and 
foundation phases of construction, and MCDA and the City would pay the cost of the 
contract modification, including but not limited to design, construction, overhead and profit, 

   
   
   
 
 
 
    
 
 
  
 
  
   
    
   
  
  
          
 
 
  
      
 
14 CBCA 385 
delays, and all associated administrative costs of GSA. The draft amendment said MCDA 
would participate with the City, GSA, and MPCA in reviewing the contractor’s foundation 
design plans and MCDA would comment on the plans in order to ensure they identified all 
remediation efforts associated with the site.  The draft also said MCDA would provide the 
design/build contractor with an approved site for disposing of contaminated soil.  Exhibit 
41.  
An attorney for the City and MCDA revised the draft and returned it to GSA and 
MCDA on January 7.  Among other things, the revised draft limited MCDA’s responsibility 
to the remediation of contamination caused by petroleum.  It also said the standard for 
remediation would be the rules, regulations and determinations of MPCA.  Also, it required 
the foundation design plans to be made available to the City, MCDA, and MPCA for review, 
consultation, comment, and approval.  The revision eliminated the provision contained in 
the draft which said the design/build contractor would not be required to alter its awarded 
design, the remediation plan, or the project schedule in order to achieve a less costly 
remediation effort.  The revision also said MCDA and the City would participate with GSA 
and MPCA in reviewing the contractor’s site foundation design plans.  In addition, MCDA 
and the City would make sure the contractor’s plans would be coordinated with MCDA’s 
remediation efforts.  Regarding payment of the cost of the contract modification, the revision 
said MCDA and the City would pay the reasonable cost of the modification, including 
design, construction, overhead, and profit, but not delay costs or GSA’s administrative costs. 
The revision said MCDA would continue its petroleum contamination remediation efforts 
following award of the design/build contract.  The revision to the draft amendment also said 
GSA would use its best efforts to cause the design/build contractor to implement the least 
costly remediation design.  The revision said MCDA would decide whether to approve 
paying for the excess cost of disposing of contaminated soil.  Exhibit 42.  The attorney who 
drafted the revisions said the purpose of giving the City and MCDA the right to approve the 
foundation design plans was to protect against writing a “blank check.”  Exhibit 513 at 2. 
On January 11, 1994, GSA told MCDA the revisions to the draft amendment were 
unacceptable because they did not represent the agreement reached by the parties on 
December 16, 1993.  GSA said the result of the December 16 meeting was an 
acknowledgment by MCDA that it could not convey a remediated site on the date the 
conveyance was supposed to occur, and a major concession by GSA to accept a 
contaminated site in exchange for MCDA’s agreement to fund a remediation plan to be 
designed and implemented by GSA’s design/build contractor pursuant to a contract 
modification.  GSA objected to limiting MCDA’s responsibility for remediation to 
contamination caused by petroleum hydrocarbons.  It also objected to allowing MCDA to 
fulfill its responsibility by approving the least expensive remediation method.  In addition, 
GSA objected to MCDA’s position that it would not pay delay and administrative costs 

      
   
 
         
  
    
  
   
 
  
  
    
    
 
   
    
   
15 CBCA 385 
associated with the remediation effort. GSA also said it could not assure MCDA access to 
the site in order to continue its remediation efforts after the design/build contractor began 
its work because MCDA’s presence on the site could interfere with construction.  Exhibit 
43. 
The parties signed the amended Development Agreement on January 14, 1994. 
Section 13.01 said MCDA agreed to pursue and fund remediation of contamination. It also 
provided, “The definition of contamination and the standard of remediation for all purposes 
of this Agreement shall be in accordance with the rules, regulations and determinations of 
the [MPCA].”  Contamination was limited to contamination identified before January 14, 
1994, or subsequently identified as the result of excavation for construction or as the result 
of implementation of remediation.  The amendment said if MCDA performed the obligations 
imposed by the amendment, this would satisfy the responsibilities imposed upon MCDA by 
the second sentence of section 4.03(b)(iv) of the Development Agreement.  Exhibit 46 at 
776. 
The general thrust of the amended agreement was that GSA would tell the 
design/build contractor about the environmental condition of the property, the design/build 
contractor would develop a remediation plan and a foundation plan which addressed the 
remediation effort to be undertaken by the contractor, GSA would issue a contract 
modification to effect the remediation effort, and MCDA would pay the cost of the 
modification.  Exhibit 46.  The language of several portions of the amended agreement are 
important to a resolution of this appeal and we set these out in the following paragraphs. 
Section 13.03 of the amended Development Agreement read as follows: 
Plan Development and Approval. The Design/Build Contractor, immediately 
after award of the Design/Build Contract, will be advised in writing by GSA 
that its development of the design plans for the foundation of the Project and 
the Plaza Garage will be prepared in consultation with GSA, MCDA, the City 
and MPCA in a manner which addresses the necessary Contamination 
remediation effort to be undertaken by the Design/Build Contractor in 
conjunction with the excavation and foundation phase of construction.  The 
Design/Build Contractor will develop a remediation plan which may include 
but shall not necessarily be limited to removing remaining contaminated soil 
and/or contaminants, removing, treating and/or sealing the Property from the 
contaminated groundwater located in portions of the Property, and/or isolating 
the Property from adjacent properties.  The foundation design plans and the 
remediation plan, including cost itemization in reasonable detail and 
specificity of all costs, if any, above and beyond the costs in the fixed price 

   
 
 
 
 
 
  
 
 
 
 
 
     
 
16 CBCA 385 
contract which are reasonably associated with the remediation effort, will be 
made available to the City and the MCDA for review, consultation and 
comment. The MCDA and the City will participate with GSA and MPCA in 
reviewing the selected Design/Build Contractor’s site foundation design plans 
including the remediation plan, and will receive all relevant information 
relating thereto.  The MCDA and the City will constructively comment on the 
plans being developed.  The MCDA and the City shall be afforded reasonably 
adequate time within the parameters of the project schedule as determined by 
GSA, for their review, consultation and comment.  GSA will use its best 
efforts on behalf of the project and the parties involved to direct the 
Design/Build Contractor to develop a reasonable and effective foundation 
plan and remediation plan which provides the greatest value to GSA, MCDA 
and the City.  GSA shall have sole authority to approve and determine (a) the 
appropriate foundation plan (subject to rights of the City regarding the Plaza 
Garage . . .); and (b) the appropriate remediation plan subject to MPCA 
approval. 
Exhibit 46 at 777. 
Section 13.04 of the amended Development Agreement read in relevant part as 
follows: 
Contract Modification .  A contract modification for the design of a 
remediation plan will be issued.  Upon approval of the remediation plan by 
MPCA, the GSA will issue a contract modification to the Design/Build 
Contractor in accordance with GSA’s procurement and contract rules and 
regulations to effect the appropriate approved remediation efforts in 
conjunction with the excavation and foundation phase of construction.  The 
MCDA acknowledges responsibility for and agrees to pay the cost of such 
contract modification(s), including but not limited to design, construction, 
overhead and profit costs, delay costs and all associated management and 
inspection costs to GSA.  No delay costs or management and inspection costs 
shall be incurred with respect to any period prior to award of the Design/Build 
Contract.  
Exhibit 46 at 778. 
GSA agreed to permit MCDA to pursue remediation activities on the property and 
the parties agreed to use their best efforts to ensure cooperation with the design/build 
contractor regarding their activities so, for example, off-site activities under MCDA’s 

 
    
  
   
  
   
  
   
 
  
 
 
  
17 CBCA 385 
control would not adversely affect the contractor’s performance of the design/build contract. 
At any time, GSA could terminate the permission it was granting to MCDA to carry out its 
remediation activities.  MCDA agreed to provide the design/build contractor with an 
approved site for MCDA’s storage, treatment, or disposal of contaminated soil, if necessary. 
Exhibit 46 at 778-79.  
Section 13.07 of the amended Development Agreement read as follows: 
Cost Containment; Contract Administration . The MCDA and the City 
acknowledge that they may not compel GSA to have the Design/Build 
Contractor to [sic] alter the awarded design, including but not limited to 
foundation design or the project schedule, in order to achieve a less costly 
remediation effort.  All matters affecting the Design/Build Contract 
administration shall be the sole responsibility and authority of GSA and the 
GSA contracting officer, with the exception of funding to be provided by the 
MCDA.  All parties acknowledge the need for expediency in developing a 
remediation plan and will pursue all reasonable efforts to develop a MPCA 
approved remediation plan within the project’s established work schedule. 
Exhibit 46 at 779. 
Section 13.08 of the amended Development Agreement read as follows: 
Funding. The MCDA’s funds to pay the cost of the contract modification(s) 
as set out in Section 13.04 will be transferred to GSA within five (5) working 
days prior to the issuance of the contract modification(s), as a further 
contribution for deposit in the Federal Building Fund set up for use on the 
Project.  The transfer of such funds shall not be contingent upon which design 
or remediation plan/design/effort is selected.  Furthermore, the MCDA and the 
City acknowledge that the current foundation plans and the resulting 
remediation plans and costs shall not be a condition/factor in determining the 
award of the Design/Build Contract. 
Exhibit 46 at 779. 
On January 19, 1994, MCDA conveyed the project site property to GSA.  Exhibit 
537. 
On February 4, Sverdrup sent GSA a technical memorandum which contained 
Sverdrup’s review and evaluation of documents generated by other consultants who had 

  
   
 
   
  
 
 
      
 
     
      
 
 
 
 
 
   
 
        
18 CBCA 385 
explored environmental issues at the project site.  Based upon its review, Sverdrup did not 
believe the groundwater at the site was contained within a depression in the clay layer 
immediately above the bedrock, which is how the location of the groundwater was shown 
in the STS June 12, 1992 report.  The groundwater appeared to be recharging from some 
unknown source, and this meant there was a possibility of the presence of a nearly constant 
supply of groundwater which could enter a construction excavation. Sverdrup also 
commented on the remediation efforts undertaken and said the STS system was performing 
as intended.  However, Sverdrup also said the system appeared to be a slow means of 
removing contamination.  Exhibit 51. 
GSA awards the design/build contract and requests a proposal to design a plan to 
remediate conditions at the site, while MPCA continues its oversight 
On February 14, 1994, GSA accepted the best and final offer presented by BPT 
Courthouse Associates (BPT).  BPT’s concept was to build the new courthouse on the north 
part of the site.  It would be thirty stories tall and have an underground parking garage.  On 
the south part of the site, BPT would construct the public plaza and beneath it, a deep 
underground parking structure. GSA’s acceptance told BPT it was not to proceed with its 
work until it received a notice to do so.  Exhibits 52, 120.  A few days later, GSA, through 
TLPA, asked Sverdrup to prepare a request for proposals to accomplish the remediation of 
the conditions at the project site, which Sverdrup did.  So far as our record shows, GSA 
never issued this request for proposals.  Exhibit 53.  On March 17, GSA gave BPT notice 
to proceed to perform the design/build contract.  The notice to proceed told BPT it had 915 
calendar days to complete its work and that its performance period began running when it 
received the notice on March 18.  Exhibit 54.  
On March 18, GSA gave BPT a request for a proposal to change the terms of the 
contract (the remediation RFP) and asked for a response within ten days.  GSA said BPT’s 
response should include an itemized cost breakdown and documentation to support any 
delay which would result from the change to the contract.  The remediation RFP described 
the work required by the change as follows: 
The contractor shall perform all services necessary for the design of the 
remediation of the site of the New Federal Building - United States 
Courthouse in Minneapolis, Minnesota.  Remediation of the site shall include, 
but not be limited to the removal of contaminants in the soil and groundwater 
to the levels acceptable to the General Services Administration and the 
Minnesota Pollution Control Authority and, if applicable, redesign of the 
building foundation system.  Work shall include, but not be limited to, related 
planning, additional exploration, and engineering design.  Remediation shall 

    
 
 
  
 
 
    
 
      
 
 
 
  
      
 
   
 
    
     
 
19 CBCA 385 
take into consideration limiting the impact upon completed construction. 
Provide construction documents, plans, specifications, and all other necessary 
documentation for remediation. 
Exhibit 54 at 847.  BPT told GSA it wanted to talk to MPCA and would need more than ten 
days to respond to the remediation RFP.  Exhibit 54 at 866.  
On March 22, BPT transmitted the remediation RFP to its architect and its 
construction contractor, Turner Construction Company (Turner). The transmittal included 
a copy of the amended Development Agreement.  Exhibit 55. The record does not establish 
when BPT received a copy of the amended Development Agreement.  
As GSA was proceeding to award the design/build contract, MPCA continued to 
monitor the activities at the project site.  On February 28, 1994, MPCA wrote to MCDA 
regarding the remediation effort.  MPCA said it thought the original STS corrective action 
design was a feasible method for reducing the contamination levels at the site because 
treating the soil and groundwater in place instead of moving it to another location minimized 
the risk to public health and the liability of the responsible party. 
2 MPCA said it had been 
told that “most of the soil beneath the property would most likely have to be removed” when 
the site was developed, and treating the soil in place before it was removed would reduce 
or eliminate the need to treat the soil when it was excavated.  MPCA also said it had been 
told the contractor might find it necessary to excavate through the clay layer above bedrock, 
and had warned of the consequences of removing the clay which held the perched, 
contaminated groundwater. MPCA said it approved the STS design based upon MPCA’s 
understanding that the date upon which the property was to be conveyed to GSA was not 
known and sufficient time was available to meet MPCA’s cleanup goals.  Exhibit 53 at 
838-39.  
MPCA reviewed in its letter the remediation work which had been accomplished, 
which consisted of removing the underground storage tanks, excavating 160 cubic yards of 
contaminated soil stored at the site, installing the STS system, and removing the STS system 
so demolition could take place and the site could be cleared before it was conveyed to GSA. 
After the site was cleared, a remediation system was installed by STS which MPCA had not 
approved.  During the installation process, an additional 590 cubic yards of contaminated 
soil were excavated and stored at the site and efforts were currently being made by MCDA 
to remediate all of the excavated contaminated soil.  Exhibit 53 at 839-40. 
2 The City was the responsible party for purposes of paying the cost of dealing 
with the contamination present at the site.  Exhibit 515 at 1538.  

  
 
  
    
  
    
 
  
 
 
 
   
 
 
 
    
  
      
        
20 CBCA 385 
In its February 28 letter, MPCA said it had not approved the excavation of the 
additional contaminated soil, the new remediation plan, or the treatment of the excavated 
soil, and would not likely have done so.  MPCA said it would have required modifications 
to all of the systems MCDA had put in place.  Because development would begin soon, 
MPCA said it was not likely the soil could be remediated in place to the extent it would not 
require further treatment, which meant there was little financial gain to be made from the 
remediation efforts which were being carried out at the site.  MPCA explained that MCDA’s 
reimbursement from the Petrofund was quite likely going to be reduced because MPCA did 
not approve of the actions which were taken after the site was cleared, because the approved 
remediation system was in place for only four months, and because MPCA had not agreed 
to the excavation of any more than 400 cubic yards of contaminated soil.  Exhibit 53 at 840­
41.  The policy of the Petrofund was to reimburse for the excavation and treatment of no 
more than 400 cubic yards of contaminated soil per site.  Transcript at 50-52, 154. 
In a section headed “MPCA Requirements,” the February 28 letter reiterated MPCA’s 
concern about excavating all of the soil, including the clay layer, above bedrock because this 
could cause contaminated groundwater to migrate to bedrock.  Such migration would be 
unacceptable to MPCA, and MPCA understood BPT was going to work with MCDA and 
MPCA to mitigate this concern.  MPCA said discussions with BPT could also include “the 
necessity of having to potentially mitigate the accumulation of organic vapors into the future 
building.”  MPCA noted the analysis of a groundwater sample collected by Sverdrup 
showed the presence of semi-volatile substances which exceeded allowable limits and which 
were not found in fuel products, and set out sampling and testing requirements.  MPCA said 
contaminated soil remaining at the site would have to be removed due to future construction 
activities, and also said soil removed due to excavation activity would have to be screened, 
sampled, and stored.  Excavated soil which was contaminated with more than ten parts per 
million of petroleum product would have to be separated from other soil, sampled, and 
analyzed.  Exhibit 53 at 841-42.  
MPCA did not believe MCDA had acted illegally or neglected the environmental 
concerns at the site, and did not intend to take any enforcement action against the City or 
MCDA. Exhibit 515. MPCA’s main objection to reinstalling the system was that doing so 
made no sense because the site was to be excavated soon.  Given no time constraints, MPCA 
thought the STS system most likely would have been successful.  However, because 
construction was to begin in three months, MPCA did not see a large benefit would be 
achieved by reinstalling the system. The bulk excavation required for construction would 
achieve the remediation objective.  Transcript at 245, 305-07.  
MPCA’s concern regarding the excavation of more than 400 cubic yards of soil 
stemmed from the fact that the Petrofund was not likely to reimburse MCDA for removing 

 
  
 
 
  
 
    
 
   
 
 
    
   
 
   
  
   
  
 
  
 
21 CBCA 385 
more than this amount of soil.  Transcript at 243-44.  MCDA had known of the 400 cubic 
yard limit and made the decision to remove more soil, knowing it would not be reimbursed, 
because leaving the contaminated soil in place made no sense to MCDA.  Transcript at 
153-54.  
STS understood MPCA’s concern regarding the excavation of more than 400 cubic 
yards of soil was strictly financial, not environmental.  Transcript at 50-52.  STS also knew 
the semi-volatile substances which were not found in fuel products would need to be dealt 
with in order to have an acceptable site. These substances were not susceptible to treatment 
by the soil vapor extraction and air sparging techniques used by the STS remediation system, 
so STS would need to devise another method to deal with these contaminants.  Transcript 
at 104-05.  
STS responded to MPCA on April 19, and explained how it would screen, sample, 
remove, store, and analyze soils.  STS explained its plan to use some soils as controlled fill 
and to use soil vapor extraction to treat stockpiled contaminated soil.  Exhibit 68.  On 
May 26, MCDA provided GSA with STS’s April 19 response and GSA forwarded the 
response to BPT.  Exhibit 82. 
BPT responds to the request for proposals and MCDA rejects BPT’s alternative plans 
If GSA had known exactly what it wanted BPT to do to remediate the site, it would 
have issued a remediation RFP which set out GSA’s requirements.  In issuing the 
remediation RFP as it did, GSA intended for BPT to develop a proposal which contained 
its own means and methods for designing a system to remediate the site.  GSA did not want 
to influence BPT’s response.  Transcript at 414.  
On March 25, 1994, a meeting was attended by representatives from GSA, BPT, 
Turner, MPCA, Sverdrup, TLPA, MCDA, STS, GME Consultants (BPT’s geotechnical 
engineer), and Ericksen, Roed/Johnston-Sahlman and Associates (BPT’s structural 
engineer).  The attendees discussed the status of the site, MCDA’s current remediation 
efforts, MPCA’s awareness of remediation efforts, MPCA’s remediation goals for the 
project, and design and construction issues.  Exhibits 56-58.  BPT had engaged GME, a 
competitor of STS, to help formulate a response to the remediation RFP.  Transcript at 122; 
Exhibit 58. 
The meeting attendees discussed the contaminated soil stored on site, which they 
thought was close to being clean.  The groundwater, located in the northeast corner of the 
site, was contaminated and current efforts would not remediate it.  The water could not be 
removed due to concerns about how this would affect the Flour Exchange Building.  GSA 

    
  
  
  
 
 
      
 
     
 
      
 
 
   
  
  
       
 
  
   
     
     
 
22 CBCA 385 
was concerned that petroleum vapors from contaminated groundwater could affect the 
operation of the new construction. STS felt a permanent venting system would have to be 
installed to protect the courthouse from vapors in the future.  MPCA said excavation had to 
comply with its requirements and if additional contaminants were encountered, excavation 
would have to stop until it approved the remediation actions to be taken.  If contaminated 
soils were not removed, they would have to be monitored and remediated until they reached 
an acceptable level of contamination.  MPCA also said if all the excavated soils were clean 
or if all contaminated soils above the groundwater were removed during excavation, the 
groundwater could remain in place and be allowed to remediate naturally. If all 
contaminated soils were not removed, the soils and groundwater would require further 
remediation.  STS thought the soils would be free of contaminants within a short period of 
time and did not think soil contamination would cause a problem for construction.  Exhibits 
56-58. 
After MPCA said the contaminated groundwater could remain in place if the 
contaminated soils were remediated, the discussion at the meeting concentrated on methods 
of construction.  BPT provided a foundation plan sketch which showed the elevations of 
planned excavation across the site.  The south part of the site would be excavated to greater 
depths than would the north part of the site. In the south, the foundation was to be  slab-on­
grade, one or two feet above bedrock.  In the north, excavation would remain ten to eighteen 
feet above bedrock, and the foundation would be four-feet to six-feet diameter caissons set 
into rock.  The parties then discussed methods of drilling the caissons that would be 
acceptable to MPCA.  STS outlined a method for sealing the caissons to prevent polluted 
water from penetrating below the clay layer and MPCA said it would approve this method 
if it got a sketch showing the process.  BPT planned to begin excavation in June or July 
1994, and would provide MPCA with the sketch it wanted.  Exhibits 56-58.  
On March 29, based upon the discussion at the March 25 meeting, GME sent a letter 
to BPT which provided options for remediating the site in ways which would eliminate 
liability to BPT and its team members for the environmental conditions at the site.  GME 
explained it had considered pumping and treating the contaminated water, air sparging and 
venting the soil, and bioremediation.  However, GME concluded each of these remediation 
methods could be a long-term process and would leave some residual levels of contaminants. 
Also, each of these methods would have to be employed after construction, which would not 
alleviate the risks during construction. Moreover, each of these remediation methods could 
be difficult to install, operate, and maintain due to the presence of the new construction and 
the Flour Exchange Building.  Exhibit 58. 
GME also considered removing only unsaturated contaminated soils and leaving the 
contaminated groundwater in place, which MPCA said it would approve.  This method 

 
 
   
    
    
              
 
 
   
    
  
  
   
   
     
  
 
 
     
     
   
  
 
23 CBCA 385 
would require underslab venting and monitoring for an extended period of time due to the 
volatilization of petroleum from the saturated soils and groundwater.  This would leave in 
place a long-term, latent liability because the water could spread or might have to be 
remediated later if standards and requirements changed. It could also give rise to claims by 
the owners of the Flour Exchange Building.  Another option was to isolate the site by 
constructing a slurry wall around the entire site. After this was accomplished, all 
groundwater and contaminated soil could be removed from the site.  Exhibit 58. 
In its March 29 letter, GME also told BPT that, based upon a conversation with a 
representative of MPCA, it understood the Petrofund would not reimburse any more costs 
incurred in order to remediate conditions at the site because MPCA had previously approved 
one reimbursable remediation system for the site which MPCA thought would have cleaned 
the site to MPCA standards if it had been left in place.  Exhibit 58.  
On March 31, 1994, GSA told BPT it could have more time to respond to the 
remediation RFP and asked BPT to submit its response at its earliest convenience.  Exhibit 
61. On April 6, GSA met with BPT to provide GSA’s comments on BPT’s preliminary 
building design concepts. GSA’s comments, which amounted to ten pages, spelled out the 
strengths and weaknesses of various aspects of BPT’s preliminary courthouse design. 
Exhibit 64.  
Ericksen wrote to BPT on April 7.  Based upon recent meetings with MPCA and 
MCDA, Ericksen said it had worked to define a program which would remove all 
contaminated soils above the groundwater and prevent the groundwater from entering below 
the clay layer. Soils adjacent to the west wall of the Flour Exchange Building could remain 
in place because the existing data showed contamination levels there were below acceptable 
limits.  Ericksen believed by using a grout curtain, a four-inch to six-inch wide barrier, along 
the south and west sides of the Flour Exchange Building, it could isolate the contaminated 
groundwater, remove contaminated soils as necessary, and comply with MPCA’s 
requirements.  Creating a grout curtain would eliminate the need to dewater below the Flour 
Exchange Building and would prevent the contaminated water from flowing into excavated 
areas. If it became necessary to remove all of the contaminated soils and water down to 
bedrock, this could be accomplished by adding a grout curtain around the perimeter of the 
site where sheet piles and wooden lagging were to be installed as a temporary retention 
system for the roadways around the site. Exhibit 63.  Also, Ericksen recommended making 
more soil borings to investigate environmental conditions near the south edge of the Flour 
Exchange Building, where there seemed to be a gap in the available data.  Exhibit 63 at 945. 
Turner reviewed Ericksen’s April 7 letter and provided comments to BPT on 
April 13.  Turner was concerned about the unknown health hazards and potential liability 

  
  
 
 
 
 
 
 
 
            
  
  
 
   
 
   
 
     
      
 
 
24 CBCA 385 
of creating a grout curtain around only the Flour Exchange Building.  Turner liked the idea 
of using a grout curtain to dam the water and then completely removing the contaminated 
soils and the clay layer down the surface of the rock.  Turner said it was ready to proceed 
immediately, assuming it received appropriate hold harmless and indemnification language 
from BPT and GSA with regard to removing the contaminated material.  Turner also 
proposed to accomplish the work on an expedited schedule in order to minimize the impact 
of the remediation work on the overall construction schedule.  Exhibit 65.  
On April 14, 1994, GME summarized for BPT the alternatives which they had 
discussed.  GME described the goals as being technically responsive to GSA and MPCA, 
while mitigating “100% of the risk associated with the remediation of the contaminated 
soil.”  GME’s summary included Alternatives A and B, discussed in the following 
paragraphs.  Exhibit 66. 
Alternative A was to remove all or nearly all of the contaminated soil and 
groundwater from the site.  This would satisfy MPCA and reduce the exposure of BPT and 
its subcontractors from the possibility of contaminants migrating to or from the site and 
vapors coming into the courthouse.  Either the pile and lagging system would be redesigned 
to allow excavation to bedrock and a grout curtain installed behind the wall, or a structural 
slurry wall would be installed around the perimeter of the site.  Then, all soil would be 
excavated to bedrock, the site would be dewatered, and the sand and clay would be 
excavated.  No special approval would be needed to install the caissons and no vapor 
venting system would be needed.  If BPT could not obtain indemnification from 
environmental contamination claims, this alternative would be considered.  Exhibit 66.  
Alternative B was based upon MPCA saying at the March 25 meeting that the 
contaminated groundwater could remain in place so long as the contaminated soil above the 
groundwater was removed.  GME recommended asking MPCA for written approval of such 
a plan and also asking MPCA to confirm that soils which were contaminated with less than 
ten parts per million of petroleum product would not have to be excavated.  Alternative B 
called for excavating contaminated soil to within one foot of the perched groundwater. 
GME recommended asking MPCA if contaminated soil near the west wall of the Flour 
Exchange Building could remain in place above the groundwater.  If MPCA would approve 
this procedure, the soldier pile system would not have to be redesigned and the Flour 
Exchange Building would not need to be underpinned. Alternative B also included a grout 
curtain which would be installed parallel to the walls of the Flour Exchange Building, 
behind the pile and lagging and down to bedrock.  Caissons and soldier piles would be 
installed in a method that satisfied MPCA and a vapor venting system would be installed. 
Alternative B would require BPT to obtain indemnification from environmental 
contamination claims.  Exhibit 66. 

   
 
 
     
 
  
    
     
  
 
   
  
 
  
  
 
 
     
25 CBCA 385 
On April 15, GME sent a letter to MPCA which contained a written description of 
the foundation construction, so MPCA could confirm its verbal approval to install caissons 
to bedrock through contaminated soil. GME explained its proposed procedure for installing 
the caissons and attached a diagram showing the steps involved in the installation.  GME 
also provided a description of the proposed excavation plan and STS boring logs to show 
where contaminated soils had been found. GME said a key element of the excavation plan 
was its understanding that MPCA would allow contaminated soil to remain in place 
provided it was contaminated with less than ten parts per million of petroleum product. 
Exhibits 58 at 899-901, 67.  On April 21, BPT asked GSA to confirm that MPCA agreed 
with the concepts contained in the GME letter.  Exhibit 69. GME subsequently made 
twenty-four additional borings across the site because nearly all of the previous borings had 
been made in the two areas near where the underground fuel storage tanks had been located. 
GME’s work was done entirely at BPT’s expense.  Exhibits 68, 91, 120.  
On April 21 or 22, BPT provided GSA with a copy of GME’s April 14 letter, which 
contained Alternatives A and B.  BPT said it was in the process of preparing price estimates 
as well as preliminary estimates of the delays to construction associated with each 
alternative. Exhibit 70.  Turner provided BPT with schedules related to the remediation 
effort and an estimate that the remediation effort would cost approximately $3.2 million. 
This included $97,000 in overtime pay which Turner would expend in an effort to make up 
delay days.  Turner wanted to make up any lost time before December 1994, so it would not 
experience the ripple effect of the delay in the winters of 1994-1995 and 1995-1996. 
Exhibits 71, 73. 
Sverdrup reviewed the alternatives proposed by GME and provided GSA with its 
comments on April 29.  Sverdrup did not like Alternative B because, although it might be 
less costly than Alternative A, GSA would end up with a site which would require constant 
monitoring, which might require continuous venting of vapors, and which could produce 
liability issues in the future.  Sverdrup divided Alternative A into A-1, which proposed the 
installation of a grout curtain behind the pile and lagging system, and A-2, which proposed 
the installation of a structural slurry wall.  Sverdrup preferred Alternative A-2 because it 
would cut off water flowing into the site and also act as a structural system for the 
underground parking garages.  Exhibit 72. 
On May 3, Turner provided BPT with a draft scope of work for bidding the 
excavation, sheeting and bracing, and site remediation work based upon Alternative A.  The 
work included isolating the site by installing a grout wall completely around the site’s 
perimeter to cut off the potential flow of groundwater and soil vapors, and removing all 
contaminated materials down to bedrock and then backfilling with clean soil.  Turner’s draft 
included a substantial amount of detail describing how this work would be accomplished. 

  
   
  
    
 
 
   
  
  
 
 
    
  
    
   
  
  
 
  
 
   
   
  
26 CBCA 385 
Exhibit 74.  On May 19, Turner told BPT it expected a delay to its planned construction start 
date.  It also told BPT this delay would cause other delays because it would shift work into 
the winter months which the best and final offer anticipated would be performed before 
winter.  Turner also said it could not proceed with the design upon which its best and final 
offer was based, and it was continuing to work with GME and expected to have estimated 
prices for GME’s alternatives available on May 24.  Exhibit 76. 
In a letter to BPT dated May 19, GSA said it was concerned that BPT had not yet 
responded to the remediation RFP. GSA asked for a response within ten days and said it 
could then continue the dialog with BPT, the City, MCDA, and MPCA.  Exhibit 75. 
GME completed a preliminary comprehensive corrective action plan for the site for 
purposes of MPCA’s review, and provided the plan to BPT on May 19.  The plan was 
preliminary because GME said it would need additional information before it could prepare 
a final plan.  GME discussed the technical design of its Alternatives A and B, both of which 
would satisfy MPCA’s requirements, and explained how the designs would be constructed. 
Alternative B was different from the Alternative B discussed in GME’s April 14 letter to 
BPT.  Instead of isolating only the Flour Exchange Building, Alternative B now called for 
isolating the north part of the site. This involved constructing a cutoff wall beginning at the 
southwest corner of the Flour Exchange Building and running east to west across the site, 
and then jet grouting around the west and north sides of the site and along the west wall and 
the southwest corner of the Flour Exchange Building.  GME estimated it would take eight 
weeks to clean up the site using Alternative A and six weeks using Alternative B.  Exhibit 
77. 
MCDA wrote to GSA on May 20. The amendment to the Development Agreement 
said BPT would develop a foundation plan in consultation with GSA, MCDA, the City, and 
MPCA.  MCDA was concerned that GSA was not following this process.  In MCDA’s view, 
GSA would not fulfill the terms of the amendment if it were to present MCDA with a plan 
prepared by BPT or Turner without input from MCDA, even if GSA had not approved the 
plan.  MCDA had received a copy of a Turner document which showed GME’s Alternative 
A. In MCDA’s view, such a concept would go far beyond what it called the “limited 
purpose and scope of remediation” called for by the amended agreement.  MCDA described 
the actions needed to fulfill its responsibilities as perhaps including the removal of any “very 
localized soil contamination discovered during further excavation” and the “possible need 
to continue the perched water treatment.”  It also characterized as “minimal” the financial 
obligations imposed upon it by the amended agreement. Exhibit 519.  MCDA gave the City 
Council a copy of its letter to GSA and said it was concerned GSA planned to demand a 
high price for wholly unnecessary remediation work.  Exhibit 520. 

   
 
   
      
 
  
    
 
 
 
  
 
 
 
    
  
27 CBCA 385 
Turner told BPT on May 23 that it would incur $57,860 in costs related to preparing 
the design of a remediation plan.  Exhibit 78.  GME’s estimated costs for the engineering 
and consulting work needed to remediate the site were $116,000 for Alternative A and 
$105,000 for Alternative B.  Exhibit 79. 
TLPA, MPCA, MCDA, Turner, and BPT met on May 26 to review Turner’s scope 
of work for excavation, sheeting and bracing, and soil remediation.  As we said earlier, this 
scope of work was based upon Alternative A. At the meeting, neither MPCA nor MCDA 
expressed any serious problems with Turner’s proposal.  MCDA and MPCA felt that 
isolating the north part of the site along the west, north, and east sides and removing soil 
below the planned level of the slab on the north part of the site was not necessary for 
remediation purposes. MPCA said it would not approve the plan as proposed by Turner 
because the plan went beyond what MPCA would require of MCDA.  However, MPCA 
would not object to Turner’s proposal so long as GSA and MCDA agreed as to the scope 
of work, GSA and MCDA developed a plan defining who was responsible for disposing of 
soil, and MPCA’s requirements were met during excavation and off-site remediation.  Costs 
were not discussed during this meeting.  Exhibits 84, 86.  Based upon the meeting, Turner 
provided BPT with a revision of the draft scope of work it prepared earlier in the month. 
The revision, like the draft, called for the site to be completely isolated and excavated. 
Exhibits 81, 87. 
Also on May 26, Turner provided BPT with estimated construction costs for 
Alternatives A and B.  The estimates were based upon MPCA’s approval of a GME design 
and Turner beginning work on July 5.  Turner expected a four-month delay to the 
completion of construction work.  The cost of soil remediation for each of Turner’s plans 
was approximately $2.5 million, plus additional amounts for working in winter weather, 
added staffing and administrative costs, profit, bond, and contingencies. The total estimated 
costs were between approximately $4.3 and $4.5 million.  Exhibits 85, 522. 
On May 26, GSA responded to MCDA’s May 20 letter.  GSA said it had been 
following the procedures established in the amendment to the Development Agreement. 
GSA said it had not yet received a specific recommendation from BPT regarding 
remediation, and understood BPT was still discussing possible approaches with MPCA. 
BPT’s ideas needed to be refined and developed, and additional meetings would be held 
with MPCA, the City, and MCDA to discuss the issue further.  The statements MCDA made 
in its letter gave GSA the impression that MCDA was committed to an outcome which 
would minimize MCDA’s costs and increase GSA’s risks.  GSA said it viewed this outcome 
as contrary to the amended agreement.  Exhibit 521.  

    
 
 
    
  
 
  
     
 
   
 
     
 
  
      
  
 
      
 
 
         
 
              
  
28 CBCA 385 
On May 27, BPT’s architect provided BPT with its estimate of the cost of responding 
to the remediation RFP.  Assuming there would be no modification to the design of the 
building and the design schedule remained unchanged, the architect estimated its costs 
would be approximately $240,000.  Exhibit 88.  The architect later revised its estimate to 
$57,817.94 for costs related only for the design phase.  Exhibit 92. 
On June 1, BPT provided GSA with a proposal in response to the remediation RFP. 
The proposal, which is dated May 27, included $538,222 for the design costs of Alternative 
A and $524,912 for the design costs of Alternative B.  Exhibit 89.  The following day, BPT 
sent GSA Turner’s May 26 cost estimates for delay and construction associated with the 
remediation design concepts.  Exhibit 90. 
On June 2, GSA, MPCA, MCDA, BPT, Turner, GME, STS, TLPA, and Sverdrup 
met to review and evaluate the alternative remedial action design concepts developed by 
Turner, GME, and BPT.  GME explained Alternatives A and B, and BPT recommended 
Alternative A. BPT anticipated a two-month delay to remediate the soil and install a grout 
wall around the site, and said it expected an added one-month delay because the initial 
delays would probably prevent closing the building before winter.  Also, said BPT, there 
might be one more month of delay due to negotiations about the remedial design to be used. 
The attendees at the meeting discussed the location of groundwater at the site and how to 
prevent it from flowing into the construction excavation.  They discussed the possibility of 
developing a third option, in addition to the two alternatives developed by BPT.  They 
discussed the fact that the stockpiled contaminated soil, which had been receiving treatment 
using STS’s remediation system since 1993, was still contaminated.  GME pointed out that 
MPCA could always reopen its file regarding a site and the owner would be responsible for 
the cost of any additional work required at the site.  Throughout the meeting, the participants 
discussed the indemnification of BPT and Turner.  Exhibit 91. 
Before the June 2 meeting, MCDA asked STS to develop a conceptual design for a 
remediation system.  Transcript at 77-78. At the meeting, MCDA said it would not pay for 
either Alternative A or B, because it believed each alternative exceeded what was needed 
in order to remediate the conditions at the site.  MCDA felt GSA wanted more than the 
minimal cleanup which MPCA would allow.  Exhibit 91; Transcript at 143.  MPCA felt 
although Alternative A was one way of remediating the contamination at the site, there were 
more practical methods which would accomplish the same result for far less money. 
Transcript at 313.  BPT felt MCDA was oversimplifying the remediation effort.  MCDA 
said it would not budge from the position that BPT’s proposals were beyond what was 
required.  Exhibit 91.  GSA was looking for a solution to remediate the site and was 
amenable to anyone coming up with a plan. Transcript at 366. GSA suggested MCDA 
provide a remedial design and give it to BPT to implement, and MCDA asked STS to 

          
     
 
  
  
  
    
     
 
   
  
 
    
  
   
 
  
 
       
29 CBCA 385 
provide such a design. Exhibit 91. Everyone agreed STS and MCDA would prepare a 
remediation plan which would meet MPCA’s requirements. STS asked for GME’s boring 
log information so it could develop its design.  GSA said there would be another meeting 
when STS completed its design.  As of June 2, BPT had not been reimbursed by anyone for 
the work it and its team had done in order to respond to the remediation RFP.  Exhibit 91. 
Turner begins work and STS begins developing a remediation design plan 
On June 6, 1994, Turner began demolition of the foundations and foundation walls 
which remained along the perimeter of the site, and started mobilizing for its pile driving 
operation.  Turner said until the remediation issue was resolved, it could install soldier piles 
until it had to penetrate the clay layer or until it had to remove soil.  Some demolition work 
could not proceed because Turner did not want to increase costs by excavating soil, moving 
it to a stockpile on site, and then moving it to another location. Turner provided BPT with 
a schedule which showed the work it planned to accomplish during the next three or four 
weeks, and showed which work it could not do without excavating soil or without an 
approved remediation plan.  Exhibits 93, 98.  
Also on June 6, GSA spoke with MCDA.  MCDA said as a last resort, it was 
prepared to indemnify BPT.  However, MCDA hoped GSA could help avoid this by 
negotiating with BPT.  Exhibit 94.  
On June 8, BPT provided STS with the courthouse basement plan as it was submitted 
to GSA pre-award. BPT said every column shown on the plan would be built over a caisson 
socketed into rock.  BPT also showed on the plan the approximate location of the wall 
between the portion of the site to be excavated to bedrock and the portion to be excavated 
to a lesser depth.  Exhibit 95.  
Also on June 8, BPT told GSA it would be willing to implement a soil remediation 
plan designed by MCDA if the plan was approved by MPCA and GSA, if MPCA would 
consider the site clean if the plan was implemented, if BPT was indemnified for claims 
related to contamination, and if BPT was given time to review the plan and determine its 
effect upon construction and the schedule.  Exhibit 97. 
On June 9, GSA, MPCA, MCDA, BPT, Turner, GME, STS, TLPA, and Sverdrup 
met to review and evaluate the additional remediation plan being developed by STS on 
behalf of MCDA.  STS said it had not been able to complete its plan because it had not 
received all of the information it had requested from GME and BPT.  It had been able to use 
drawings BPT provided, but it needed additional information regarding the area and 
elevations of the lower levels of the new courthouse building and the Flour Exchange 

 
 
  
      
  
    
 
 
  
 
    
       
 
  
  
   
   
      
  
    
     
    
 
    
    
30 CBCA 385 
Building, additional plans of details of the courthouse, and additional subsurface 
information from GME.  Turner gave STS the estimated elevations of the floor of the new 
courthouse building and the bottom of the footings of the Flour Exchange Building, which 
showed the floor elevation would be twelve feet lower than the elevation of the bottom of 
the footings.  Although we are not sure when STS received GME’s boring logs, it had them 
at this meeting.  Exhibits 98, 528. 
At the June 9 meeting, STS said the installation of Turner’s pile and lagging retention 
system would not require any special construction methods because the soldier piles would 
not penetrate the clay layer.  However, a special construction method would be needed when 
caissons were installed in areas of contaminated soils and groundwater.  BPT had provided 
STS with drawings of typical caisson construction, but STS did not believe all of the 
elements shown on the drawings were necessary.  STS asked Turner about its plan to 
underpin the Flour Exchange Building and they agreed underpinning was necessary only at 
the building’s southwest corner.  Exhibit 98.  
STS expressed concern about the possibility of contaminated groundwater entering 
the excavation from beneath the Flour Exchange Building and, in general, the movement of 
groundwater from the north part of the site to the south part of the site, where excavation 
would be significantly deeper.  STS noted the groundwater at the site had risen between six 
and nine inches since demolition occurred. STS suggested installing a grout cutoff wall 
running east to west to separate the north and south parts of the site.  MPCA shared STS’s 
concern and said a wall would be necessary, at a minimum, along the south side of the Flour 
Exchange Building. BPT suggested the wall serve as the underpinning of the Flour 
Exchange Building, instead of the soldier piles and lagging BPT currently planned to use. 
Exhibit 98.  
TLPA asked if a vapor barrier would be installed beneath the courthouse garage 
where contaminated soil was being left in place. STS thought there were no confined spaces 
below grade, so no barrier would be necessary.  However, when STS realized there were 
going to be rooms below grade, STS said it might be more cost effective to ventilate the 
confined areas than to use a vapor barrier. Exhibit 98.  In STS’s view, an underslab venting 
system was needed to capture any vapors from the contaminated groundwater and soils, and 
to prevent vapors from migrating to occupied areas of the building.  STS thought such a 
system was a reasonable and proper element of the remediation plan.  Transcript at 108-09. 
So did GSA’s on-site project manager, who was an expert in commercial construction. 
Transcript at 562, 581.  
Turner continued to be concerned about indemnification and said it would not mind 
if MCDA used another contractor to perform the remediation work, so long as Turner had 

 
  
   
  
 
    
 
   
 
  
      
  
 
     
 
  
 
    
 
 
 
  
       
   
31 CBCA 385 
control of the construction schedule.  MCDA said if it used another contractor, it would have 
to solicit bids and this could take up to two months.  Exhibit 98. 
At the June 9 meeting, Turner explained it was performing demolition work, but it 
did not know which soil was considered contaminated so it could not move any soil away 
from the site and the stockpiled soil would soon begin to congest Turner’s work area.  BPT 
asked if MCDA could remove stockpiled contaminated soil and MPCA said this should not 
be a problem.  STS thought the removal could begin immediately using trucks hired by 
MCDA, and said it would be available to monitor the soils being removed.  Turner felt 
coming to some resolution about remediation as soon as possible was important so it could 
create a schedule, and BPT explained that construction of the courthouse was critical path 
work, and it was to be built on the north part of the site where there was known to be 
contamination.  Exhibit 98. 
Near the end of this meeting, BPT asked STS what it needed in order to develop its 
remedial design.  STS said it needed the retention system design, caisson design, location 
and design of the grout wall to run across the site from east to west, elevations of the 
foundations of the Flour Exchange Building and the elevations where BPT would underpin 
the building, the location and elevation of below-grade enclosed areas, a plan of the drain 
tile system, and a plan of a ventilation system of the enclosed areas.  Exhibit 98. 
There was another meeting held on June 13.  Sverdrup attended on behalf of GSA. 
Also in attendance were MCDA, STS, GME, Turner, and Ericksen. The purpose of the 
meeting was to provide STS with information so it could design its remediation plan, and 
STS had many of its questions answered. STS needed foundation, footing, and basement 
plans from BPT, and BPT said it could provide STS with a copy of BPT’s best and final 
offer plans. However, preliminary building design plans were not due from BPT to GSA 
until mid-July, and final design plans were not due until September.  BPT’s best and final 
offer plans were preliminary design plans which showed the amount of excavation work 
BPT would perform in order to construct the building.  The foundation design plans could 
be finished while the excavation work was taking place.  Exhibits 101-03, 105, 525, 528; 
Transcript at 569. 
STS said the caisson design outlined by GME was acceptable and STS would decide 
which locations needed to use the design and how to deal with the spoils from the 
installation, recognizing that the exact locations of caissons and pilings were in the process 
of being designed by BPT. After this June 13 meeting, GSA determined BPT’s plans could 
not be released, but could be reviewed by STS at  the offices of Turner, TLPA, or GSA. 
Exhibits 101-03, 105, 525, 528.  GSA did not release the plans due to security concerns. 
Exhibit 553.  

 
 
 
 
      
 
 
  
  
 
  
    
 
   
  
 
 
 
 
 
    
       
  
32 CBCA 385 
Also discussed at the June 13 meeting was the system of underpinning at the 
southwest corner of the Flour Exchange Building proposed by BPT in its best and final 
offer.  STS said it would recommend an underpinning system to be used and the extent of 
the underpinning which was needed.  The cutoff wall which STS was to design to divide the 
north and south parts of the site would most likely be connected to the underpinning in order 
to provide a continuous barrier. Elevator shafts would penetrate the clay layer to rock and 
STS’s plan would provide for this installation.  In addition, STS would provide a plan for 
venting the occupied spaces in the courthouse basement and electrical vaults.  Turner said 
the electrical vault would be located above the most contaminated part of the site and asked 
STS to evaluate the system for venting vapors below and around this area.  BPT planned to 
use perimeter drains and STS was to decide how to deal with vapors and groundwater 
collected in the drain lines, especially along the Flour Exchange Building.  STS said it had 
enough information to prepare a plan by June 17.  Exhibits 101-03, 105, 525, 528. 
Another item discussed at the June 13 meeting was the removal of soil from the site. 
The removal of the soil which had been stockpiled during previous remediation efforts was 
going well.  The affected soils in the middle of the site needed to be removed as soon as 
possible. STS said Turner could begin driving piles to bedrock on the west side of the site 
the next day.  Turner had placed seismic recording devices and crack gauges in the Flour 
Exchange Building and notified the owner that pile driving would begin on June 14.  BPT 
and Turner continued to discuss the indemnification issue.  MCDA said it was having a 
meeting on the afternoon of June 13 to discuss how it would contract for the remediation 
work at the site.  Exhibits 101-03, 105, 525, 528. 
On June 14, STS wrote to MCDA about the environmental aspects of the installation 
of the soldier pile and lagging system. STS thought the only contaminated soil which might 
be encountered would be along the east edge of the north side of the project, and that no 
contaminated groundwater would be encountered.  Exhibit 104.  
On June 16, MPCA sent a letter to MCDA saying it had recently completed a review 
of several pieces of information regarding the actions to be taken in response to the 
petroleum tank releases at the site.  MPCA did not object to the method of caisson 
installation proposed by GME.  MPCA reviewed STS’s April 19 response to MPCA’s 
February 28 letter, and said it did not oppose the actions proposed by STS on April 19, with 
certain modifications.  MPCA’s letter went on to explain that if contaminated soil was 
exposed when excavation was completed to the final construction grade, excavation should 
continue until contamination levels fell below ten parts per million, but should not continue 
into the clay layer or below the soil under the perched groundwater.  MPCA said it was not 
sure how excavated soil which required additional treatment would be handled, but it would 
have to approve a method for handling this material.  MPCA mentioned that Turner had 

   
    
 
      
           
 
 
    
 
   
  
        
  
 
33 CBCA 385 
prepared two preliminary conceptual remediation designs and STS was working to develop 
a plan, and MPCA said it would continue to work with everyone to develop a remediation 
plan which would address all identified contamination at the site.  Exhibits 108, 115. 
On June 17, Turner notified BPT that its excavation subcontractor had completed all 
it could do and would stop work at the site in the afternoon.  The existing perimeter 
foundation walls and below grade walls had been demolished on the north, west, and south 
sides of the site.  None of the soil and building materials could be moved offsite as would 
typically be done, due to the remediation issue not being resolved.  The materials should 
have been removed and Turner should have begun bulk excavation on June 13, but it could 
not do so until the remediation and indemnification issues were resolved.  Exhibits 109-10, 
115, 124. 
STS drafts a work plan and construction activities occur (June 17 - July 5) 
On June 17, 1994, STS provided MCDA, TLPA, Sverdrup, GSA, and BPT with a 
work plan for the remediation effort.  The work plan contained four and one-half double-
spaced pages of text.  It said in areas where contaminated soils and groundwater were 
present, caissons would be installed in accordance with a procedure developed by GME. 
It explained how contaminated spoils from the caisson installation would be handled.  The 
work plan gave several options for underpinning at the southwest corner of the Flour 
Exchange Building, pointed out there were environmental concerns in the area of the 
underpinning, and said the underpinning had to tie into the groundwater flow cutoff wall 
which was to be constructed east to west most of the way across the site.  The work plan also 
said elevator shafts to be constructed within or near the contaminated area would be 
surrounded by a groundwater control wall in order to allow construction to occur.  STS 
recommended the installation of an underslab vent system beneath the electrical vault and 
occupied spaces below ground.  STS described this system as consisting of four-inch 
perforated pipes installed fifteen feet apart under the slab, and said the system would provide 
passive venting when connected either to the parking garage area or the exhaust vent system. 
Regarding the perimeter drain lines, STS recommended venting the sump into which the 
drain lines emptied, although it did not expect any vapors or contaminated water would enter 
the drain lines.  Exhibit 111.  
Also on June 17, STS sent MCDA the specifications for the grout cutoff wall to be 
installed across most of the site running east to west in order to impede groundwater from 
flowing into the south part of the site, and to be installed around the elevator shafts.  STS’s 
document was one which MCDA could use to solicit bids for the construction of the wall, 
which it did.  Exhibits 112, 528.  

  
 
 
  
 
       
 
 
 
 
  
 
   
  
     
  
 
      
   
    
   
     
34 CBCA 385 
GSA, MPCA, MCDA, BPT, Turner, GME, STS, TLPA, and Sverdrup met on 
June 24, 1994.  The purpose of the meeting was to review STS’s June 17 work plan, to 
discuss the issue of indemnification, and to discuss how to allow construction activity to 
continue.  MCDA had not shown GSA its solicitation for construction of the grout cutoff 
wall before it issued the solicitation.  GSA said it would not agree to take a piecemeal 
approach to remediation and wanted to review and approve a complete remedial design 
package.  GSA emphasized that the remediation work had to be coordinated with the 
construction schedule and said the remediation issue needed to be resolved because of the 
effect on the schedule.  GSA also said it did not want to move ahead with a remediation plan 
until the issue of vapors accumulating in the building was addressed.  Exhibit 115. 
MPCA said it was not concerned with the issue of vapor control and would have no 
comment on this.  MPCA also said it was only obligated to comment on issues related to 
contamination, and was not concerned with work in areas where no contamination had been 
discovered.  It said its June 16 letter to MCDA addressed caisson construction and the 
removal of soil from the site, and that it had commented on action levels for the site, 
monitoring requirements, and the sampling of excavated material.  MPCA said it had given 
as much approval – although, it noted, it did not want to use the word “approval” – as was 
required for the remediation of the site.  Exhibit 115. 
At the June 24 meeting, Turner explained what work it had performed and how it had 
been affected by the lack of remediation.  Turner needed to work in the north part of the site 
where contamination had been found and where the courthouse would be located.  Turner 
said it would not continue to work without the indemnification  issue being resolved.  This 
issue could not be addressed at the meeting because MCDA had not drafted any 
indemnification language, but it said it would do so by June 27.  Turner also explained it 
could not drive piles into bedrock on the west side of the site because it had not been told 
it was permitted to do so. MPCA said it had no objection to Turner driving piles along the 
west side of the site.  The attendees at the meeting also discussed how contaminated soil 
could be hauled from the site and MPCA clarified its requirements for this work.  Exhibit 
115.  
At this meeting, STS said it could provide a more complete remediation plan if it had 
structural drawings, but it understood drawings had not yet been developed by BPT.  GSA 
noted that STS had been given access to the available project drawings. Sverdrup pointed 
out that, even without complete drawings, STS should be able to develop typical details of 
a remediation design.  Sverdrup also thought MPCA should be willing to put in writing its 
position that contaminated soils and groundwater could be left in place on the site because 
its regulations were not completely clear regarding this point. MPCA said it had allowed 

 
  
    
 
 
 
   
  
        
       
  
 
 
  
 
    
      
 
  
              
   
     
  
35 CBCA 385 
contaminated soils and groundwater to remain in place on other sites and would not provide 
a written statement such as the one requested by Sverdrup.  Exhibit 115. 
Regarding STS’s June 17 work plan, the attendees at the June 24 meeting agreed it 
explained the special procedure for caisson construction in contaminated areas.  They also 
agreed the remediation plan should include an excavation plan to show which soils would 
have to be removed and which soils could remain in place.  Regarding underpinning of the 
Flour Exchange Building, STS said it did not know enough about the proposed 
underpinning system to be able to explain how to tie in the groundwater flow cutoff wall, 
and the design of the cutoff wall was briefly discussed. Regarding the building’s drain line 
system, BPT said it had not yet developed the details of the system and STS said it could not 
comment on how the system could be affected by the contaminated materials which would 
remain at the site.  As for elevator shafts, STS said it saw on the drawings that three shafts 
would need to be constructed in an area containing contaminated materials.  The meeting 
attendees felt STS could provide BPT with sufficient details so the shafts could be 
constructed.  Regarding underslab venting, Sverdrup thought it should be installed beneath 
all below-grade rooms.  BPT said it would install the pipe as suggested in STS’s work plan 
and vent it into the parking garage.  Although MPCA said earlier in the meeting it would 
have no comment on the issue of vapor control, during the discussion of vapor control 
MPCA said it would be “the responsibility of MCDA to pay for any and all costs related to 
the installation of an active vapor control system.”  STS agreed to revise its work plan for 
everyone to review on July 6.  Exhibit 115. 
GSA drafted a letter during the June 24 meeting and sent it to BPT.  The letter said 
Turner could continue its pile driving operations along the west side of the site.  Also, GSA 
asked BPT if it would allow MCDA to remove contaminated soils from the site for storage 
and treatment. GSA suggested BPT agree to do this because it would help preserve the 
construction schedule and MPCA had not objected to STS’s proposed methods for 
monitoring soil excavation.  Exhibit 116.  
Turner said it would resume installation of the pile and lagging retention system along 
the west, south, and east sides of the site, and would begin bulk excavation and removal of 
non-contaminated soils.  It also agreed to excavate contaminated material and load it into 
trucks provided by MCDA. Turner said it would agree to do these things with the 
understanding that some sort of indemnification agreement would be in place by July 9, and 
that STS would be on site to monitor the excavated soils. Turner said it would be ready to 
install caissons beside the Flour Exchange Building in two weeks, but could do so only if 
a soil remediation plan and indemnification agreement were in place. Turner also said it had 
experienced delays that could affect its schedule and costs.  Exhibit 117. 

 
  
        
     
  
     
   
    
    
   
    
 
 
 
 
     
  
  
  
 
  
36 CBCA 385 
On June 27, an attorney for the City and MCDA sent proposed indemnification 
language to the attorneys for BPT, Turner, and GSA.  MCDA was willing to indemnify BPT 
and Turner, but no one else.  Exhibit 528.  
GME completed a geotechnical report for BPT on June 28. The report described the 
construction planned for the site, the topography, the geology, the soil conditions, the 
groundwater encountered, and other features of the site. GME’s report said the remediation 
plan being developed by STS was much the same as BPT’s Alternative B.  GME explained 
that, based upon MPCA stating at the June 24 meeting that contaminated soil could be left 
in place along the Flour Exchange Building, the west wall of this building would need 
underpinning only at its southwest corner where it was near the new courthouse, and would 
not need underpinning all along its west wall as described in Alternative B.  Also, instead 
of isolating the north part of the site as described in Alternative B, the plan being developed 
by STS would contain a grout wall which would run from east to west across most of the site 
in order to isolate the part of the site where contaminated groundwater was found from the 
part of the site where deeper excavation was to take place, and would contain cutoff walls 
around the elevator pits in the north part of the site.  Exhibit 120. 
Turner returned to work on June 30 in areas not affected by contamination.  Exhibit 
124.  On July 1, Turner informed BPT that the STS remediation plan was not scheduled to 
be approved until July 15, which suggested to Turner that MCDA did not fully understand 
the urgency of the situation.  Turner also said that due to liability concerns, it was not going 
to be able to load contaminated material into MCDA trucks until a remediation plan was in 
place.  Turner told BPT that the time for submitting bids to MCDA to construct the grout 
wall expired without anyone submitting a bid.  Exhibit 121.  
Turner and BPT reviewed the STS work plan and provided GSA with a list of 
comments on July 5.  Turner and BPT thought the remediation plan should provide 
procedures for how to handle contaminated groundwater and soils, assign responsibility for 
emergency response and quality assurance, set out training and health safety requirements, 
and explain the logs and reports which would need to be prepared in connection with 
excavation and construction.  Exhibit 123.  
STS continues its work and construction activities occur (July 6 - 25) 
On July 6, 1994, STS provided MCDA with its “Construction Soil Remediation 
Plan,” which was a substantial revision of its June 17 work plan.  This construction plan 
contained nearly eleven double-spaced pages of text.  Section 1 of the construction plan 
covered general excavation work. STS said the air sparging and ventilation system had 
partially remediated the conditions at the site, and STS anticipated there would be limited 

   
  
 
     
  
 
  
  
    
 
 
   
 
         
 
 
  
            
 
     
     
 
 
 
37 CBCA 385 
areas of contaminated soils encountered.  Soils would be classified according to the levels, 
if any, of petroleum they contained, and then handled in accordance with MPCA’s 
February 28 and June 16, 1994 letters, which STS attached.  STS also attached a diagram 
prepared by Ericksen which showed the anticipated depths of excavation, and STS drawings 
which showed the estimated extent of contamination at the site.  Section 1 included a 
decision tree which showed how to determine the proper method for handling soils.  It also 
explained how trucks hauling soils would be tagged according to their contents and how the 
air would be monitored, and contained requirements for reporting and site safety.  Section 
2 consisted of STS’s June 14 letter, which dealt with the installation of piles and lagging. 
Section 3 covered caisson installation and was nearly identical to STS’s June 17 work plan. 
Section 4 covered underpinning at the Flour Exchange Building and was much the same as 
the work plan.  It referred to the underpinning mentioned in BPT’s best and final offer. 
Section 5 covered the groundwater flow cutoff wall and elevator shafts. In addition to the 
information contained in the work plan, this July 6 plan contained STS’s specifications for 
the cutoff wall and several STS drawings related to the cutoff wall.  One drawing showed 
the cutoff wall beginning near the southwest corner of the Flour Exchange Building and 
extending slightly to the south and to the east, as well as west most of the way across the 
site.  The plan said three groundwater cutoff walls would also be constructed to surround 
each of three elevator pits.  Section 6 covered the electrical vault and occupied basement 
areas and was much the same as the work plan, except it provided a typical detail of the vent 
system and also called for placing a vapor barrier directly below the floor concrete.  Section 
7 covered drain lines and was the same as the work plan.  Section 8 covered groundwater 
handling and said the only place contaminated water would be found was in the elevator 
pits. STS suggested either having this water removed by someone authorized to do such 
work or mixing the contaminated water with clean soils and then treating the soils as if they 
were contaminated.  Exhibit 125.  
By July 6, Turner had installed sheet pile and lagging along the north side of the site 
and two-thirds of the way along the west side of the site.  Concrete rubble from demolition 
was piled in the middle of the site and soil was stockpiled at the south end of the site. 
Turner began bulk excavation in the south part of the site on July 6, and its excavation 
subcontractor hauled the excavated material to a location where the Minnesota Department 
of Transportation (MDoT) needed fill dirt.  Shortly before noon on July 7, MDoT stopped 
Turner’s subcontractor from depositing the excavated materials because MDoT was 
concerned that the soil was contaminated.  After MPCA called MDoT, MDoT agreed to 
accept the excavated material if it received an explanatory letter regarding the soil.  There 
was no hauling of excavated materials on July 8.  By then, Turner had installed sheet pile 
along most of the west side of the site.  Exhibits 126, 528. 

     
   
    
 
  
    
 
 
     
    
  
  
 
       
 
   
  
 
   
 
 
 
 
 
  
38 CBCA 385 
There was a meeting at the job site on July 12 to discuss the procedure for excavating 
and removing material so Turner could resume its excavation work. STS agreed it would 
be at the site whenever excavation occurred and would test and monitor material at the site. 
GME would monitor and test the material at the MDoT site and would complete a manifest 
for each load.  Turner agreed to meet with MDoT on July 13, to explain this process so 
hauling could resume. Excavation and hauling began again on July 14.  During excavation, 
perched water was encountered at a higher elevation than expected.  Exhibits 127-28, 528. 
Sverdrup reviewed STS’s July 6 construction plan, which it understood to be an 
option in addition to those presented by BPT.  Instead of being based upon MPCA’s 
approval of a remediation plan, Sverdrup noted, the STS construction plan relied upon 
MPCA’s lack of disapproval of leaving contaminated soil and water in place.  Sverdrup 
reviewed the construction plan in order to determine the degree to which it mitigated the 
risks of leaving such material in place. Sverdrup was not convinced the STS construction 
plan accounted for all of the contaminated areas at the site, and the levels of contamination 
in the groundwater remained above the recommended regulated concentrations. The most 
likely risk of leaving contaminated groundwater and soil in place was the presence of vapors 
during and after construction.  Sverdrup felt the remediation plan ought to include more 
specific requirements for air monitoring during construction.  Sverdrup also felt the cutoff 
wall needed to be extended and the remediation plan ought to provide additional details 
about elevator shaft construction. It also made suggestions for adding details about the vent 
system and the drain lines and said the remediation plan should explain what would happen 
if contaminated water entered the drain lines.  Exhibits 129, 132. 
GME also reviewed STS’s July 6 construction plan.  GME understood GSA wanted 
“zero impact” from environmental concerns. However, such a result could not be obtained 
unless all contaminated material was removed from the site.  GME recommended that GSA 
and BPT aggressively pursue indemnification if contaminated material was to be left in 
place.  Like Sverdrup, GME was not convinced the STS construction plan identified all of 
the areas of contamination at the site.  Also, GME did not believe MPCA would allow 
remediated soil to be handled as non-contaminated soil, which was something the STS 
construction plan permitted.  GME recommended keeping a record of all soil removed from 
the site.  In addition, GME did not agree with STS’s idea for monitoring of vapors during 
construction because the standard of exposure STS proposed to use was not a standard 
imposed by any regulatory agency.  GME recommended redesigning STS’s proposed 
underslab vent system to improve the flow of vapors and thought the system might need to 
be installed under the entire building and be designed so it could be converted from a 
passive system to an active system.  GME noted the STS construction plan did not include 
any method for dealing with contaminated groundwater if it entered the perimeter drain line 
system, and GME thought the remediation plan should assume this could happen.  Also, STS 

     
 
       
 
 
   
  
 
 
    
     
 
 
  
 
   
      
   
  
   
 
    
 
 
  
  
39 CBCA 385 
needed to explain what to do if contaminated ground water was encountered unexpectedly 
during construction.  Exhibit 131.  
In a July 14 conference call, GSA, Sverdrup, MPCA, TLPA, STS, GME, MCDA, 
BPT, and Turner, discussed the July 6 STS construction plan.  GSA said the plan was 
incomplete and, therefore, not acceptable. STS said it would resolve one of GSA’s concerns 
by revising a drawing which showed the areas of contamination at the site.  GSA said its 
largest concern was that contamination was going to be allowed to remain on the site.  BPT 
asked that the cost of insurance for the remediation work be included in the cost of the work 
because it did not carry liability insurance for remediation, and also asked that 
indemnification be extended to its architect. Based upon MCDA agreeing to this term, BPT 
said it would develop a price for the July 6 STS construction plan during the week of 
August 1.  As of July 14, BPT had experienced a thirty-day delay to its construction 
schedule.  Exhibits 133, 531, 537. 
BPT, Turner STS, MPCA, MCDA, attorneys for the City and MCDA, GSA, 
Sverdrup, and GME met on July 19.  GSA’s goal was to get the construction project back 
on schedule and moving forward, and resolve differences of opinion about delays and price 
later. GSA explained how it thought the process of remediating the site was supposed to 
occur.  To begin, MCDA would develop a remediation plan and BPT would propose a price 
for implementing the plan. Then, the City and MCDA would deposit their funds with GSA 
and BPT would begin to implement the plan with the final price to be determined later. 
Following this, GSA would negotiate a final price with BPT, and MCDA and GSA could 
debate whether the price was too high. GSA wanted to know whether MCDA was prepared 
to follow this process.  GSA was concerned that if MCDA decided it did not like BPT’s 
price proposal for the STS construction plan, it would want to develop yet another plan and 
create additional delay.  Exhibits 133, 137-38, 532-33.  
At the July 19 meeting, BPT said it was prepared to provide a proposed price for the 
STS construction plan based upon an indemnification agreement being in place.  The City 
felt that due to BPT’s increasing demands regarding indemnification, delays related to the 
indemnification issue were not the City’s responsibility.  GSA disagreed.  GSA said 
indemnification of BPT had been a part of the process from the time GSA agreed to allow 
MCDA to formulate a plan in addition to the BPT alternatives.  GSA said the City originally 
had an obligation to turn over a clean site.  When this did not happen, GSA issued a request 
for proposals to ask BPT for a remediation design.  When the City and MCDA objected to 
the costs associated with BPT’s proposed designs, GSA agreed to allow STS to design a 
plan, provided MCDA would work with BPT to see if they could agree upon a suitable 
indemnification arrangement.  Because BPT would not be designing the plan it would be 
asked to implement, it wanted to be indemnified.  GSA and GME pointed out that if all of 

      
 
   
       
 
            
 
   
     
        
 
  
  
 
 
 
    
 
 
      
 
 
   
 
 
40 CBCA 385 
the contaminated soil and water were removed as BPT proposed to do, there would be no 
potential for future migration of contamination and no need for indemnification.  When 
MCDA said it would need to examine BPT’s claims for delay and the cost of the delay, GSA 
stressed that this needed to occur after it told BPT to proceed with the work.  Otherwise, the 
delay would continue to grow.  Exhibits 133, 137-38, 532-33. 
MCDA asked if BPT would be more comfortable if the July 6 construction plan said 
contaminated soil below grade would be totally encapsulated.  After some discussion, the 
group concluded there were problems with this approach because the encapsulated layer 
would be penetrated by caissons and elevator shafts, and because vapor emissions would not 
be controlled. Also, there would need to be a procedure developed for encapsulating the 
contaminated soil and BPT would have to provide a price for this work, which would take 
time.    Also, GSA said if certain areas within the site were defined as contaminated and then 
sealed, MPCA ought to be willing to say the rest of the site was not contaminated and did 
not need to be tested. MPCA said it absolutely would not agree to this because although 
there were some areas it was relatively sure were contaminated, there were other areas about 
which it was unsure.  GSA stressed that its main concern with MCDA’s suggestion was 
time.  Time was money, according to GSA, and to introduce another plan might produce 
something which was cheaper to construct, but more expensive overall because of delay 
costs.  Exhibits 133, 137-38, 532-33. 
The participants in the July 19 meeting discussed the July 6 STS construction plan. 
BPT said it expected to receive a document which was a complete remediation plan authored 
by STS, not an STS plan which referred to documents and letters and drawings prepared by 
others.  GSA and BPT thought STS had been working to develop a remediation plan which 
contained its own design and which included the details needed to implement the plan and 
remediate the site. STS said it did not have all of the information it needed to design 
something that would, for example, tie into the new building, because most of BPT’s 
design/build drawings had not yet been developed. BPT and GSA pointed out, however, 
that there were some things BPT could not design until it knew what STS had planned. 
Exhibits 133, 137-38, 532-33. 
Regarding the specifics of the July 6 STS construction plan, STS agreed to remove 
references to GME and BPT, and to include references to GSA only if needed for clarity. 
It also agreed to revise a drawing contained in section 1 of the plan to show contaminated 
soils where all of the underground storage tanks had been located and to clarify the affected 
area near the Flour Exchange Building.  Also, it would modify the decision tree contained 
in the plan and the truck tagging procedure.  In addition, it would include benzene as a 
substance to be monitored.  Regarding caissons, MPCA said the special installation method 
would need to be used in areas of perched groundwater, even if this was outside the area of 

 
     
 
   
       
 
         
 
 
 
 
   
   
        
   
     
 
  
  
 
  
41 CBCA 385 
contaminated soil.  MPCA also said STS’s plan should specify precisely which caissons 
would need to be specially installed and which could be installed conventionally.  STS said 
it would remove references to BPT’s plan for underpinning the Flour Exchange Building. 
Regarding the cutoff wall, MPCA recognized BPT’s concern about contaminated water 
flowing around the end of a wall which did not extend completely across the site, and 
acknowledged the advantage to be gained by extending the wall completely across the width 
of the site. MPCA did not say, however, that running the wall completely across the site was 
necessary.  BPT said it would provide a price for extending the wall completely from the 
east to the west side of the site and would also provide a price for making the cutoff wall a 
structural element of the building. In addition, the parties concluded the description of the 
wall would be modified to show it would be pinned to rock if there was no clay layer.  As 
for the vent system, STS would refine its design and prepare one which could shift from 
passive to active operation.  In addition, a contingency plan was needed for handling 
contaminated groundwater which might infiltrate the south part of the site.  Exhibits 133, 
137-38, 532-33. 
On July 20, BPT provided STS with its tentative architectural; structural; heating, 
ventilating, and air conditioning; and plumbing drawings for the project.  Exhibit 134. 
On July 25, BPT wrote to GSA to say it had not received a revised drawing from 
MCDA which had been approved by MPCA and which showed contaminated and non-
contaminated areas of soil at the site.  Until BPT received this drawing, it could not begin 
excavating again.  Work was continuing on the pile and lagging along the south side of the 
site, but it was proceeding at an inefficient pace because soil could not be hauled away and 
had to be pushed aside in order to keep the operation moving.  Exhibit 136.  
STS revises its plan and others provide comments (July 26 - August 5) 
On July 26, 1994, STS sent MCDA its “Environmental Construction Plan,” which 
was a fairly extensive revision of the July 6 version of the plan.  This construction plan 
contained fourteen double-spaced pages of text which did not refer to GME or BPT, and it 
attached drawings prepared only by STS. Section 1 of the revised plan addressed the 
excavation of contaminated soils in considerably more detail than did the July 6 version of 
the plan.  It also referred to a revised decision tree for determining how to handle excavated 
soils and contained a procedure for tracking soils transported from the site and for preparing 
required reports.  The information contained in the revised plan regarding site safety was 
substantially the same as that contained in the July 6 construction plan.  The revised plan 
attached a revised STS drawing which showed the estimated extent of contamination at the 
site and added an affected area along the west side of the site.  Section 2 of the revised plan 
addressed caisson installation and provided more specific information about where the 

    
             
   
 
        
 
  
  
       
  
 
  
    
 
 
     
    
   
 
 
  
  
 
      
42 CBCA 385 
specially installed caissons would be needed than did the July 6 construction plan.  Section 
3 of the revised plan addressed the groundwater flow cutoff wall. It attached a drawing 
which showed the wall beginning near the southwest corner of the Flour Exchange Building 
and extending south and then to the east, much the same as the July 6 plan.  However, 
instead of running directly across the site to the west, the July 26 plan showed the wall 
heading northwest, completely surrounding all three elevator pits, and terminating several 
feet more to the west than it did in the July 6 construction plan.  The length of this cutoff 
wall was a little more than 75% of the distance around the perimeter of the entire north part 
of the site.  The revised plan stated the cutoff wall was not a structural wall.  It also 
explained how to handle contaminated groundwater encountered within the elevator pits and 
encountered unexpectedly elsewhere. Section 4 discussed underpinning the southwest 
corner of the Flour Exchange Building, but did not discuss any of BPT’s plans for 
underpinning.  Section 5 of the revised plan covered underslab venting and expanded quite 
a bit upon the July 6 plan’s discussion of occupied basement areas.  The revised plan 
explained where to place the vent system and proposed to tie the vent system into the 
building’s drain line system in order to allow for venting the drain lines.  The revised plan 
did not contain a discussion of the installation of piles and lagging, which had been included 
in the July 6 plan.  Exhibit 139. 
In a teleconference which occurred on July 27, MCDA told GSA and Sverdrup the 
revised STS plan was available. MCDA also expressed some frustration that STS was being 
asked to hit a moving target.  GSA reminded MCDA that any remediation plan had to be 
detailed and specific and approved by GSA. MCDA thought GSA was focusing too much 
on potential problems. GSA said the agreement between the parties presumed there would 
be a clean site and GSA’s position reflected responsible building management.  Exhibit 141. 
Also on July 27, an attorney for the City and MCDA sent a revised draft of the 
indemnification agreement to GSA and BPT.  This draft included BPT’s architect within the 
coverage extended by the agreement.  Exhibit 144.  On July 28, MPCA approved MCDA’s 
plan to use contaminated excavated soil as controlled fill in the construction of a parking 
area in a nearby town.  MPCA also agreed with an STS letter dated July 22, which described 
the boundaries of the contaminated areas within the site.  Exhibit 146.  
On July 28, Sverdrup provided TLPA with comments on the July 26 STS revised 
plan.  Most of Sverdrup’s concerns were that the STS revised plan contained unclear or 
open-ended statements and did not always state exactly what work was supposed to be done, 
who was supposed to do the work, or what standards were to be applied to work which was 
performed. In addition, Sverdrup found some errors in the STS revised plan.  Exhibit 145. 

 
      
        
 
   
 
 
       
      
 
    
  
 
 
 
   
 
     
 
  
  
  
 
    
  
 
43 CBCA 385 
On July 29, STS, MCDA, an attorney for the City and MCDA, MPCA, Sverdrup, 
GSA, TLPA, Turner, and BPT met to discuss the Sverdrup comments on the July 26 STS 
revised plan. MPCA said it had not yet reviewed the revised plan. In addition to agreeing 
to make a number of clarifications and corrections to the revised plan, the meeting attendees 
agreed the plan should refer to the MPCA standard which would be used to screen soils at 
the site, should define more precisely the estimated area of contamination, and should state 
explicitly how STS would differentiate between possibly contaminated fill, clean fill, and 
other soils. They also agreed the plan needed to address how contaminated ground water 
would be handled and to say MCDA would provide a truck to haul away such water if it was 
encountered.  In addition, they agreed the plan should say STS would prepare the reports 
required by the plan, including the reports regarding the special installation of caissons. 
They also agreed the plan would be revised to recognize that the construction schedule could 
require expanding the area where the special installation of caissons would be required and 
to recognize that the plans for the groundwater cutoff wall might need to be adjusted during 
construction.  Also, the location of the stack for the underslab vent would have to be 
coordinated with BPT’s architect.  During this meeting, it came to light that there were 
apparently two plans being circulated.
3   One had been supplied to GSA and BPT, and a 
second plan to MPCA for approval.  Confusion as to which plan was intended needed to be 
resolved.  STS said it would revise its plan within twenty-four hours after receiving written 
comments from GSA on August 4.  Exhibits 148, 150, 535.  
At the July 29 meeting, MCDA asked if BPT would permit MCDA to excavate the 
entire northeast area of the site, which was known to be contaminated, and haul the 
excavated material away.  BPT was willing to allow MCDA to do this, but said it would 
need a day or two to get its equipment out of the way.  The attendees agreed Turner would 
mark the bounds of the contaminated area and then MCDA would begin work.  They also 
agreed to keep track of the number of truck loads of material which MCDA removed. 
Exhibit 535.  On August 1, BPT explained to GSA that it would not be possible for MCDA 
to begin removing material, after all.  BPT said everyone at the July 29 meeting apparently 
had forgotten the caissons would have to be installed next to the Flour Exchange Building 
before the contaminated soil in the northeast area of the site could be excavated.  BPT said 
it would proceed to install the caissons even though there was no approved remediation plan 
which contained directions for the special installation of caissons. BPT did this based upon 
the statements MPCA had made at the July 29 meeting.  BPT also said it would begin 
hauling non-contaminated soils from the site during the current week.  This work could 
resume because it received a copy of MPCA’s July 28 letter to STS which agreed with 
3 The presence of a second plan is confirmed in a letter dated August 23, 1994, 
written by MCDA and sent to GSA.  Exhibit 180.  

    
 
  
 
 
  
 
  
  
  
  
  
      
   
    
  
   
  
44 CBCA 385 
STS’s description of the boundaries of the contaminated areas within the site.  Exhibits 149, 
154. 
On August 1, BPT told GSA it was developing a schedule which would bring the 
project nearly back on schedule by the end of 1994.  Also, it was preparing a pricing 
proposal for the July 26 STS construction plan.  The proposal would include all design, 
construction, and delay costs, and would assume an indemnification agreement was in place 
and work could begin by August 15.  Exhibit 149.  
On August 4, GSA provided MCDA with its written comments about STS’s July 26 
revised construction plan. The comments contained a summary of how GSA, Sverdrup, 
GME, BPT, and Turner understood the issues discussed at the July 29 meeting had been 
resolved.  Also, the comments contained some issues and questions which they thought 
deserved to be considered by STS when it revised its plan.  Some of these issues and 
questions related to the basis for STS’s design of the underslab vent system and others 
related to the July 26 revised plan’s omission of a discussion about the sheet pile and lagging 
system.  Exhibits 152-56.  
STS prepares its final plan and caisson installation begins 
On August 9, 1994, STS transmitted a copy of a revised environmental construction 
plan which it said included revisions in response to GSA’s August 4 comments.  Exhibit 
161. On August 10, GSA told MCDA it had received the August 9 STS plan and, after 
spending a short time glancing at it, realized it did not incorporate all of GSA’s August 4 
comments. GSA said it would circulate the August 9 STS plan and try to provide MCDA 
with comments by August 11.  GSA also noted the indemnification issue had not yet been 
resolved.  GSA told MCDA the cost of the construction delay would continue to rise 
dramatically in relation to the cost of the actual remediation effort if the issues related to the 
remediation plan and indemnification were not resolved.  Whatever savings the city secured 
by rejecting BPT’s plans had been offset by delay costs, said GSA, so little real savings were 
achieved. In order to minimize further delays, GSA asked that the City and MCDA deposit 
4the amount of BPT’s projected costs ($4,358,023)  with GSA so that GSA could issue a
contract modification to BPT as soon as GSA received an acceptable remediation plan and 
the indemnification issue was resolved. GSA noted its increased management costs were 
not included in BPT’s projected costs, and said the final cost of the contract modification 
would be negotiated later.  Exhibit 163.  
4 The derivation of this figure is discussed in the next section of our findings of 
fact.  

  
  
  
 
   
 
   
 
     
 
 
 
 
         
 
      
      
     
 
    
  
      
45 CBCA 385 
On August 11, MPCA finished its review of the August 9 STS plan. MPCA did not 
either give or withhold its approval of the plan.  Rather, it said it did not object to the 
implementation of the plan.  MPCA also said the plan was consistent with its “verbally 
established goal” of removing contaminated soil from the site, and with its February 28 and 
June 16, 1994 letters to MCDA.  MPCA emphasized it had not reviewed the sections of the 
plan which addressed site safety and underslab venting because MPCA said it had no 
authority to regulate these areas.  However, MPCA also said, “as with any potential 
development of a contaminated property, special consideration should be taken in the design 
of the building in order to not allow for the potential migration to, and accumulation of 
organic vapors inside the future structure.”  MPCA said it understood section 5 of the STS 
plan addressed “an organic mitigation plan designed to be implemented with the 
development of the courthouse.” Exhibit 168. It was within MPCA’s authority to survey 
and monitor structures in order to determine whether vapors from existing contamination 
were affecting the structures.  It was not within MPCA’s authority, however, to require 
someone to construct a safe building.  As MPCA’s representative recognized, someone 
constructing a building could either take vapor migration into account during construction 
or be liable for the consequences of not doing so.  Transcript at 279-81, 285. 
On August 12, Sverdrup provided GSA and TLPA with comments which resulted 
from reviewing the August 9 STS plan.  Sverdrup’s comments noted omissions from the 
plan and discussed the revisions which STS made to the July 26 plan. For example, 
Sverdrup understood GSA had not been consulted about STS’s decision to include in the 
plan an elevation which would separate one class of soils from another in order to show the 
estimated area of contamination. Sverdrup explained there were several problems with the 
elevation included by STS in the August 9 plan and said a more reasonable elevation should 
have been selected. Many of Sverdrup’s comments pointed out where statements contained 
in the STS plan were vague or open-ended, and Sverdrup made suggestions as to how the 
statements could be revised.  Some of Sverdrup’s comments pointed out differences between 
the revised text of the plan and the content of the drawings which were a part of the plan. 
Also, Sverdrup noted the August 9 STS plan did not address the procedures to be used when 
driving piles in contaminated areas.  Exhibit 170.  
GSA gave Sverdrup’s comments to MCDA on August 12. GSA reminded MCDA 
that the remediation plan had to be approved by GSA, and told MCDA the STS revised plan 
was unacceptable and needed to incorporate Sverdrup’s comments.  Exhibit 536. 
On August 23, MCDA sent STS’s revised environmental construction plan, dated 
August 22, to GSA. Exhibits 177, 180. On August 25, STS sent GSA a few pages which 
contained minor revisions to the August 22 plan.  Exhibit 182.  The August 22 plan, as 

 
 
   
 
  
 
  
 
       
          
 
 
  
46 CBCA 385 
amended on August 25, satisfactorily incorporated GSA’s August 12 comments.  Exhibit 
188.    
On August 26, GSA approved the August 22 STS plan, as amended on August 25. 
GSA said its approval was contingent upon approval by MPCA, and explained that after 
MPCA approved the plan, GSA would ask BPT for a proposal to implement the plan.  Also, 
GSA said it would not issue a contract modification to BPT until MCDA deposited the 
funds to pay for the modification.  Exhibit 183.  
MPCA wrote to MCDA on August 26, and said it had completed its review of the 
STS plan dated August 22, as amended on August 25.  As it had done on August 11,  MPCA 
neither gave nor withheld its approval of the plan.  Rather, it said it did not object to the 
implementation of the plan.  Exhibit 185.  
While the STS plan was being finalized, reviewed, and approved, Turner resumed 
its construction activities.  On August 10, BPT told GSA that Turner would soon begin 
installing five caissons next to the Flour Exchange Building using the special installation 
method authorized by MPCA in its June 16 letter to MCDA.  Exhibit 165. 
Turner began installing the first caisson on August 15 and encountered a problem 
almost immediately.  The STS plan called for augering through the sand layer until saturated 
sand was reached.  Then, bentonite would be added to make a slurry, the auger would be 
advanced one foot into the clay layer, a temporary casing would be installed, and the clay 
layer would be penetrated to bedrock.  The bentonite was meant to seal the caisson to 
prevent contamination below the clay layer.  When Turner followed these procedures as it 
began drilling a caisson in the contaminated area next to the Flour Exchange Building, water 
seeped into the caisson and rose to a depth five feet.  At 7:45 the following morning, Turner, 
BPT, and the STS technician on site tried to contact someone from STS to come to the site 
and offer a solution to the problem. At 4:00 in the afternoon, an STS representative came 
to the job site and met with Turner, BPT, Sverdrup, and MPCA.  On August 17, STS 
provided MCDA, Turner, BPT, Sverdrup, and MPCA a written recommendation for 
effecting a seal between the sand and the underlying bedrock in the first caisson, and a 
procedure for installing the remaining caissons.  Exhibits 172, 501, 538.  
During August, 1994,while the STS plan was being reviewed and finalized, and 
while BPT was attempting to continue its construction activities, discussions regarding 
indemnification continued without the issue being finally resolved.  Exhibits 169, 174-176, 
191, 501, 541. 

 
  
  
 
 
 
  
 
         
     
 
 
 
  
 
 
 
  
  
     
47 CBCA 385 
Consideration of price and delay issues before the STS plan was approved 
On August 8, 1994, Turner sent BPT its response to the July 26 STS plan.  Turner 
explained which construction activities it would complete, how it would accelerate its work, 
and the assumptions it made when it calculated the time and cost of each activity.  Assuming 
it would be able to begin work on August 15, 1994, Turner said the delay in receiving a 
remediation plan caused an overall delay of fifty-two calendar days and the work required 
by the July 26 remediation plan added twenty-four more days to the critical path schedule. 
Turner thought it could accelerate its work and recover all but fourteen days of the delay by 
the end of 1994, and work extended hours in order to recover the remaining fourteen days 
by November 1, 1995, and it explained how it would accomplish this.  Turner also provided 
a detailed description of the costs it would incur to regain the schedule, the costs of 
implementing the remediation plan, and how it would accomplish these things.  The total 
cost was $3,198,000, which included $403,000 for the direct cost of remediation activities; 
$1,677,000 for recovering the schedule; $450,000 for Turner’s increased extended general 
conditions costs (direct field office overhead); $52,000 for subcontractor remobilization and 
inefficiency; $125,000 for remediation operations insurance; a $200,000 contingency for 
acceleration, supervision, and support; plus a markup (profit and home office overhead) of 
$291,000.  Exhibit 159.  Overall, BPT thought Turner’s approach was good.  BPT made a 
number of comments to Turner, however, and asked for specific information regarding some 
of Turner’s proposed activities and costs.  Exhibit 160.  
On August 9, BPT sent GSA a summary of the costs it would incur in order to 
implement the July 26 STS plan and regain the schedule. The total was approximately $4.3 
million.  In addition to Turner’s costs of $3,198,000, BPT included its architect’s costs 
($45,672), GME’s costs ($155,000), legal fees ($28,000), insurance ($175,000), and BPT’s 
overhead and profit ($756,351).  BPT said in order to proceed, it needed an approved soil 
remediation plan and indemnification for itself, its architect, and Turner.  Also, GSA would 
have to issue another request for proposals to perform the work required by the STS plan 
(which BPT referred to as RFP 1A) and then issue a contract modification with the price to 
be determined later.  Exhibit 162.  At GSA’s request, BPT subsequently separated which of 
these costs it considered remediation costs ($1,395,943) and which it considered acceleration 
costs ($2,962,080).  Exhibit 171. 
On August 19, BPT told GSA that progress on critical construction activities was at 
a standstill. BPT said Turner had installed the retention system and one caisson according 
to the STS plan.  Excavation had started and stopped twice due to lack of proper delineation 
of contaminated areas and lack of an approved plan to show to those who might be able to 
receive excavated materials.  BPT’s August 9 prices were premised upon BPT receiving a 

       
  
 
  
  
 
 
  
  
  
 
  
48 CBCA 385 
notice to proceed by August 11, which did not happen, so the pricing plan would have to be 
revised.  Exhibit 176.  
An August 22 narrative, prepared by Sverdrup and based upon a project schedule 
dated August 11, said there were seven items of work which needed to be added or changed 
due to remediation activities.  The delay to the critical path amounted to forty-two calendar 
days.  The direct costs associated with the work and the delay amounted to approximately 
$2.2 million, including extended general conditions costs.  Exhibit 178; Transcript at 457. 
If, however, the notice to proceed was not issued until September 30, the delay to the critical 
path would amount to eighty-four work days, and the direct costs associated with the work 
and the delay would amount to approximately $3.4 million.  Exhibits 179, 197.  Two weeks 
later, BPT estimated the delay would amount to an additional 125 calendar days, which 
amounts to 84 work days (125 x 2/3).  Exhibit 194. 
When MCDA sent the August 22 STS plan to GSA on August 23, MCDA said it was 
responsible only for the excavation and foundation construction matters covered by the plan. 
According to MCDA, the manner in which the plan addressed these matters had remained 
“materially unchanged” since July 6, and MPCA had given its “conceptual approval” before 
July 6 for carrying out activities related to these matters.  MCDA said almost all of the 
changes made to the plan after July 6 addressed matters which were not MCDA’s 
responsibility and therefore MCDA could not be responsible for any delay to the project 
caused by such changes.  Exhibit 180.  
On August 25, Turner put BPT on notice, once again, of the delays it was 
experiencing due to the lack of an approved environmental remediation plan and what it 
called “evolving” site conditions, including the conditions encountered during caisson 
installation.  Turner said it was in the process of preparing a logistical plan which would 
allow it to deviate from its planned approach and perform work out of sequence.  Exhibit 
181. 
Consideration of price and delay issues after the STS plan was approved 
On August 26, 1994, GSA sent RFP 1A to BPT.  RFP 1A required BPT to perform 
all work necessary to implement the STS plan.  GSA asked BPT to provide a response 
within ten work days and to include an itemized cost breakdown.  Exhibit 186.  GSA also 
told BPT that both GSA and MPCA had accepted the STS August 22 remediation plan, as 
amended on August 25, and said to use the plan as the basis for responding to RFP 1A. 
Exhibit 184. 

  
 
 
 
 
 
 
  
    
      
   
       
 
    
  
 
 
 
 
  
  
 
 
 
 
 
 
  
49 CBCA 385 
Also on August 26, MCDA told GSA it was “imperative to commence construction 
immediately.”  In order to achieve this, MCDA proposed to deposit with GSA $490,000, 
which MCDA considered to be BPT’s “hard costs” of implementing the remediation plan, 
installing the caissons, underpinning the Flour Exchange Building, and a few other minor 
activities.  In addition MCDA proposed to deposit related “soft costs” to the extent GSA 
determined such costs were fair and reasonable, to indemnify BPT, Turner, and BPT’s 
architect, and to begin expedited arbitration with GSA to resolve issues related to delay and 
the contents of the remediation plan. Exhibit 187. At a meeting on August 29, GSA said 
it could not proceed with the project in a piecemeal fashion because to do so would result 
in additional delays in the future. The only way to stop delays, said GSA, was for the City 
to deposit the full amount it was obligated to deposit.  Exhibit 545.  
On August 31, Turner again complained to BPT about its inability to accomplish any 
meaningful work. Turner told BPT it had studied the possibility of performing work out of 
the planned sequence of work, in an area which was supposedly not contaminated. 
However, it seemed to Turner that work in the area would be quite restricted until measures 
had been taken to make sure contaminants from other parts of the site did not migrate to the 
area. Also, Turner would need to have someone from MCDA monitor its progress to 
determine if it encountered contamination.  Turner concluded it would proceed in such a 
manner if GSA directed BPT to do so, although accomplishing work in this way would be 
quite inefficient.  Exhibit 191.  
On September 2, Turner told BPT it had extended by two weeks the date for receipt 
of bids for performing the caisson work, due to the lack of resolution of the soil remediation 
issue.  Turner also explained this extension would not affect the schedule because the date 
it originally established for the submission of bids was based upon beginning soil 
remediation work on August 15.  Turner had decided to extend the date for receipt of bids 
for performing foundation concrete work for the same reason.  Exhibit 193.  
Also on September 2, MCDA sent GSA a draft, preliminary analysis of the impact 
of the remediation plan on BPT’s schedule.  The analysis was prepared by Kellogg, a 
construction consulting division of Peterson Consulting (Kellogg), which had been hired on 
August 30 to perform the analysis.  Kellogg’s analysis was based upon a site visit, brief 
interviews with employees of MPCA and STS, and what Kellogg described as a “cursory 
review” of STS’s remediation plan, a Turner schedule logic diagram, a Turner schedule 
report, and Turner’s August 8 letter to BPT.  Kellogg had not reviewed the project plans and 
specifications, the contract between GSA and BPT, or current information relating to 
progress.  Kellogg concluded MCDA’s responsibility for delay depended upon whether it 
could establish the existence of any concurrent delay.  Kellogg noted that Turner’s August 8 
letter, which set out Turner’s plan to recover most of the schedule by the end of 1994, and 

    
   
 
     
 
  
    
    
   
 
 
   
      
  
  
    
   
50 CBCA 385 
the remainder by November 1, 1995, was based upon Turner beginning work on August 15, 
and completing critical excavation, caisson, and foundation work before winter arrived. 
However, Turner had not been able to begin work on August 15, and Kellogg thought it was 
questionable whether Turner would be able to regain the schedule as it had planned to do. 
Kellogg said if soil remediation activities delayed the start of critical construction activities 
until the spring of 1995, the resulting delay could extend the completion of the project by 
up to one year.  Exhibit 192.  
Kellogg also provided a draft, preliminary analysis of the cost estimates set out in 
Turner’s August 8 letter to BPT and the estimates set out in BPT’s August 9 letter to GSA. 
In this analysis, Kellogg estimated the special installation method to be used for caissons 
would extend the completion date by approximately thirty days.  As for its analysis of the 
Turner and BPT cost estimates, Kellogg thought BPT’s estimate of the cost of remediation 
($1,395,943) was $900,000 too high.  Exhibit 192.  
On September 7, GSA, MCDA, Sverdrup, and Kellogg met to discuss several 
subjects.  GSA was very concerned because no agreement had been reached regarding 
indemnification.  MCDA said it had directed its attorneys to finalize an agreement and there 
was supposed to be a meeting the following day to accomplish this.  Also, GSA pointed out 
that the STS plan might need to be changed as construction progressed due to unforeseen 
circumstances.  For example, it had come to GSA’s attention on the morning of 
September 7, that Turner encountered contaminated soil at an elevation approximately 
sixteen feet above the elevation at which the STS remediation plan said such soil would be 
found.  The primary focus of the September 7 meeting, however, was delay and price issues. 
Exhibit 197. 
GSA had prepared a price estimate which it believed was fair and reasonable, and 
GSA had reviewed the Kellogg price estimate.  GSA wanted to come to an agreement with 
MCDA at the September 7 meeting regarding an estimate so GSA could negotiate a price 
with BPT.  According to GSA’s price estimate, if the notice to proceed was issued on 
September 30, the delay to the critical path to completion of construction would amount to 
eighty-four work days and the cost of performing the work, including extended general 
conditions costs, would amount to $2,233,033.  GSA’s notes of the meeting list each 
category of costs contained in the GSA estimate and state for each item whether the parties 
agreed to use the estimate as the basis for price negotiations with BPT.  With only a few 
exceptions, they agreed to use the estimate as the basis for negotiations.  They agreed GSA 
would examine BPT’s actual costs of insurance, legal fees, and settlements reached with its 
subcontractors for remobilization.  In addition, they agreed some of the costs included in the 
GSA estimate might be eliminated by an indemnification agreement. Also, they agreed the 
GSA estimate of BPT’s daily general conditions costs would be the upper limit used by GSA 

 
    
         
 
    
  
   
 
 
   
   
  
 
 
 
 
         
  
      
 
   
    
          
    
51 CBCA 385 
as the basis for its negotiations with BPT, and Kellogg would be available to assist GSA 
during negotiation of the general conditions costs.  Regarding the GSA estimate of eighty-
four work days of delay, MCDA reserved the right to challenge the actual number of days 
of delay at a later date and said it wanted to determine whether there had been any 
concurrent delays.  Exhibit 197. 
GSA’s estimate also included an amount for TPLA’s costs and $10,000 per day for 
the costs GSA (not BPT) incurred due to delay, and said there would be additional GSA 
costs for management and inspection which would be determined as a percentage of the cost 
of construction.  At the September 7 meeting, GSA explained it could not modify BPT’s 
contract until MCDA deposited its funds with GSA and the funds had been accounted for 
by GSA’s finance office. Pending the outcome of negotiations, MCDA agreed to deposit 
everything except the $10,000 per day for GSA’s delay costs.  Exhibit 197.  A few days 
later, in response to a suggestion made by GSA, MCDA said it would deposit the cost of the 
BPT contract modification, excluding GSA’s delay costs, by September 23, and would 
reserve the right to dispute the costs after making the deposit.  Exhibits 196, 552. 
On September 12, BPT responded to RFP 1A.  Its price was based upon several 
assumptions, such as being able to begin its operations on October 3 (which would result 
in a total delay of 125 calendar days) and having an indemnification agreement in place. 
BPT asked for a 125 calendar day extension of the contract completion date.  Its price, 
which included the cost of the delay and extended general conditions costs, contained 
$492,146 for its architect and structural engineer, and $3,363,000 for Turner.  Exhibit 199. 
Turner had resumed its excavation operations on September 8.  On September 12, 
STS found a localized area of “odorous soil” and sent samples for analysis.  On 
September 13, STS found more such soil plus contaminated soil at random locations 
throughout the southwest part of the site and outside the area identified in the remediation 
plan as containing contaminated soil.  Turner had no place to work productively until the 
conditions could be more thoroughly analyzed.  Exhibits 201, 554. 
Price negotiations occur, GSA accepts BPT’s proposal, and MCDA deposits funds 
Price negotiations between GSA and BPT occurred on September 15 and 16, 1994. 
Present were representatives from GSA, TLPA, Sverdrup, BPT, Turner, and Kellogg.  An 
agreement was reached on September 16 regarding the price of the construction work to be 
performed by Turner. On the morning of September 17, negotiations continued and an 
agreement was reached regarding BPT’s costs.  On September 19, negotiations concluded 
regarding BPT’s markup for profit and home office overhead.  These negotiation sessions 
were thoroughly documented by contemporaneous notes and a summary prepared soon after 

   
    
 
    
     
  
 
52 CBCA 385 
negotiations concluded by the representatives from TLPA, Sverdrup, BPT, and Turner who 
participated in the negotiations.  According to this documentation, a representative from 
Kellogg was present during all negotiations with Turner and participated in all discussions. 
As negotiations progressed, if the representative from Kellogg wanted to raise or discuss an 
issue, he would confer in a separate room with a representative from MCDA to obtain input. 
Kellogg and MCDA did not voice any major objections to the negotiations.  Exhibits 225, 
267; Transcript at 378-79, 573. 
 The final negotiated price was $2,292,406 plus a ninety-day extension of the final 
contract completion date.  The price included extended general conditions costs and did not 
include other costs of the ninety-day delay or the cost of BPT’s architect or its structural 
engineer.  The price was conditioned upon MCDA providing indemnification and GSA 
providing a notice to proceed by September 20.  Exhibit 225.  
The negotiated price included the following for the cost of remediation: 
$ (18,000) Credit for soil excavation and removal by MCDA
   143,300 Premium for special installation of caissons
   250,000 Groundwater cutoff wall at the Flour Exchange Building
     54,000 Underslab venting system
   137,500 Turner supervision and support (general conditions costs)
       7,200 Turner insurance
     57,400 Turner markup for profit and indirect overhead
       4,000 Turner performance and payment bond 
Exhibit 225. 
The negotiated price also included the following for the direct costs of the ninety-day 
delay: 
$ 451,700 Temporary heat during the 1995-96 winter
     60,000 Turner’s subcontractors’ remobilization and inefficiency costs
   290,000 Cost escalation contingency
   237,000 Turner supervision and support (general conditions costs)
     13,200 Turner insurance
   105,200 Turner markup for profit and indirect overhead
       7,300 Turner performance and payment bond
 
Exhibit 225. 

            
  
  
 
 
 
 
 
 
    
  
 
 
 
  
 
     
53 CBCA 385 
The total of the above, which were Turner’s costs, is $1,799,800. BPT’s part of the 
negotiated price included $307,828 for direct costs, including extended general conditions 
costs, and a markup of $184,778.  Adding Turner’s costs to BPT’s costs and markup results 
in a total of $2,292,406.  Exhibit 225.  During negotiations, MCDA said it would construct 
the cutoff wall which was to run east to west across the site, so the negotiated price 
contained nothing for this wall.  BPT’s proposed, non-negotiated price for the construction 
of this cutoff wall had been $196,500.  Exhibit 204.  
On September 19, GSA sent BPT another request for proposals, RFP 1A-1, which 
was a revision to RFP 1A.  Essentially, RFP 1A-1 asked BPT to submit a price proposal 
which conformed to the price negotiations.  Exhibit 205. 
Also on September 19, MCDA deposited $2,420,295 with GSA for the cost of the 
construction contract modification.  This amount included the negotiated amount for Turner 
($1,799,800), slightly less than the negotiated amount for BPT ($474,495), $50,000 for 
BPT’s architect, and $96,000 for GSA’s management and inspection costs.  In addition, 
MCDA said it would pay for the added insurance needed by BPT.  MCDA told GSA it had 
signed an indemnification agreement and was sending it to BPT for signature.  Exhibits 
555-56. 
On September 21, BPT sent GSA its response to RFP 1A-1. The total price was 
$2,292,406.  Exhibit 208. On September 22, GSA accepted BPT’s September 21 proposal 
for an increase in the contract price of $2,292,406 and a ninety-day extension of the contract 
completion date.  Exhibit 268.  
Events subsequent to price negotiations 
On September 22, 1994, MPCA notified GSA that the United States would not be a 
“responsible party” under state law for releases from the underground storage tanks which 
had been removed from the site.  The letter also said GSA ought to be aware that petroleum 
contamination could still be present, and development plans ought to consider activities such 
as removal of soil and “the potential for vapors to enter structures.”  Exhibit 557. 
By September 26, 1994, BPT had obtained the additional insurance it needed and told 
MCDA how to pay the premium.  Also, the indemnification agreement had been signed by 
MCDA, BPT, BPT’s architect, and Turner.  BPT notified GSA of these events and GSA 
sent BPT a notice to proceed with the work required by RFP 1A-1.  Exhibits 214-15, 217. 
On October 17, 1994, an MCDA contractor was to begin constructing the cutoff wall 
which was to run from east to west across the site.  This work was originally to be completed 

  
  
  
  
          
   
 
     
 
  
   
  
  
 
  
 
   
 
 
54 CBCA 385 
in nine days, which was later extended to ten days.  A temporary ramp ran into the site from 
the north side and provided one of Turner’s subcontractors with access to the site.  On 
October 24, MCDA said the ramp was in the way of the cutoff wall construction which, in 
MCDA’s opinion, entitled its contractor to additional time to complete the cutoff wall 
construction.  On October 25, BPT told MCDA that before the MCDA contractor was 
awarded its contract, it knew about the temporary ramp.  BPT did not agree the presence of 
the ramp entitled MCDA’s contractor to additional time to complete its work. It appears, 
however, the ramp was removed, the work was finished by October 28, and the ramp was 
replaced.  Exhibits 227-28, 229, 231, 233.  MCDA originally estimated the cost of the cutoff 
wall would be $60,000. The actual cost of the wall was $143,000 even though, according 
to STS, the cutoff wall was installed essentially as planned, with “minor location changes 
to allow constructability of the wall and the proposed caissons.”  Exhibits 233, 563. 
In late December 1994, during construction of one of the elevator pits, MCDA’s 
groundwater control contractor removed contaminated water from inside the cutoff wall 
which surrounded the elevator pits. On December 20, in an internal memorandum, MCDA 
said the quantity of water pumped out was “20,000+” gallons at a cost of $1 per gallon.  On 
January 19, 1995, in a letter to GSA, MCDA said the quantity of water pumped out was 
“47,000+” gallons at a cost of approximately $50,000.  Exhibits 236, 560.  On May 3, 1995, 
STS said the cost of removing the water (29,000 gallons) was $33,853.  Exhibit 569. 
MCDA complained to GSA that this work was necessary only because GSA and BPT had 
made changes in the design and location of the elevator pad, and MCDA said it should not 
be responsible for the costs it incurred in removing the contaminated water from the site. 
Exhibit 236.  GSA responded by saying MCDA knew the STS remediation plan was based 
upon preliminary building design documents and knew changes due to normal design 
development would occur.  After the cutoff wall was installed, GSA explained, one such 
change was needed in order to meet an elevator manufacturer’s requirements.  In GSA’s 
view, the terms of the STS remediation plan made MCDA responsible for removing the 
contaminated water.  Exhibit 562.  
On August 7, 1995, BPT told GSA it was substantially finished with the work 
outlined in the STS remediation plan and required by RFP 1A-1.  Exhibit 246.  
Delay analysis 
BPT took from March 18 until May 26, 1994, to develop its alternative remediation 
concepts. GSA did not believe any time would have been saved if BPT had solicited 
MCDA’s input while BPT was developing Alternative A, which was to isolate the entire site 
and remove all of the contaminated soil and water.  In GSA’s view, Alternative A was a 
product of the unresolved indemnification issue and was BPT’s way of presenting a 

   
 
        
 
    
  
 
  
    
 
 
  
  
      
 
  
 
   
  
55 CBCA 385 
remediation concept which it could implement if it was not indemnified.  The development 
of this alternative went “hand in hand” with the unresolved indemnification issue. 
Transcript at 406-07, 419.  GSA’s on-site project manager, who is an expert in commercial 
construction, did not believe BPT took an excessive amount of time to develop its 
alternative remediation concepts. Transcript at 558, 562, 568. A construction management 
and scheduling expert hired by GSA did not believe BPT took an unusual amount of time 
to develop its two concepts, considering it had to hire GME to provide expertise regarding 
remediation which BPT did not have, to become familiar with all of the information about 
the site, and to speak with MPCA about what would and would not be allowable.  Transcript 
at 500-01.  
The City and MCDA did not perform any schedule analysis to determine whether 
there was a delay to critical path activities and, if so, the duration or cause of the delay. 
GSA’s expert in construction management, whose area of expertise included critical path 
method scheduling, compared Turner’s as-planned schedule to an impact schedule he 
created by using information similar to the information available when price negotiations 
occurred in mid-September 1994.  Transcript at 485, 505-06. 
According to both the as-planned and the impact schedules, the work related to 
constructing the courthouse on the north part of the site was on the critical path to 
completion of the project.  According to the as-planned schedule, Turner was supposed to 
begin work on June 10, 1994, finish the installation of sheet piles and the excavation for the 
courthouse on August 19, and complete the courthouse basement walls on November 29, 
1994.  The impact schedule showed Turner began work very close to June 10.  However, 
according to the scheduling expert who prepared the impact schedule, Turner’s work started 
and stopped when it encountered remediation-related issues which needed to be resolved. 
This starting and stopping continued until the indemnification agreement was in place and 
GSA issued the notice to proceed on September 26. After GSA told BPT to proceed, Turner 
had to complete the sheet pile and excavation work. MCDA needed ten days to install the 
cutoff wall, and those days were added to the impact schedule.  An additional ten days were 
added to the impact schedule to account for the special installation of caissons, five days 
were added to account for work related to dealing with contamination when constructing the 
elevator pits, and five days were added for performing courthouse wall concrete work in 
colder weather than originally planned.  The impact schedule showed the courthouse walls 
would be finished on March 6, 1995, which is ninety-eight days later than the November 29 
date shown in the as-planned schedule for completing this work.  Thus, the scheduling 
expert concluded critical path activities were delayed by ninety-eight calendar days.  Exhibit 
262; Transcript at 503, 506-12, 517-18. 

     
    
          
  
   
 
    
  
  
   
   
      
 
        
 
       
56 CBCA 385 
The scheduling expert concluded critical path activities were delayed by ninety-eight 
days due to the lack of resolution of the indemnification issue.  He explained Turner was not 
in the business of environmental remediation and did not plan to assume the risk of dealing 
with environmental contamination when it began the project.  Indemnification was an 
important issue and the project did not move forward until the issue was resolved in late 
September when MCDA, Turner, BPT, and BPT’s architect entered into the indemnification 
agreement.  Exhibit 262; Transcript at 503, 506-12, 517-18. 
In the scheduling expert’s opinion, if the indemnification issue had been resolved 
earlier, it would have probably been possible to use Alternative B, which BPT presented on 
June 2, because it was not much different from the plan which was developed by STS.  Both 
Alternative B and the STS plan left most of the contaminated soil and water in place, made 
special provisions for the installation of the caissons, and used a grout cutoff wall.  The 
expert thought if the indemnification issue had been resolved when BPT presented its two 
alternatives, one of which assumed there would be no indemnification and the other of 
which assumed there would be indemnification, the parties could have saved several months 
of time by moving ahead with Alternative B.  Transcript at 519-21.  Based upon his review 
of documents related to the present dispute, he recalled MCDA saying in June 1994 that it 
would indemnify BPT. However, in his opinion, an oral promise does not amount to actual 
indemnification from the point of view of a contractor trying to manage risk. Transcript at 
553. 
The scheduling expert also looked to see whether there had been any critical path 
delays caused by design work. He found all design packages were on schedule except for 
the foundation design package, which was not on schedule because of unresolved 
remediation issues.  Finally, the scheduling expert looked at the list contained in the claim 
(discussed in the next section) of examples of delay which the City and MCDA said were 
caused by GSA and BPT. He did not find that any of these examples of delay had affected 
the project’s critical path.  Transcript at 549-50. 
The claim 
On April 9, 1999, the City and MCDA submitted a certified claim to GSA in the 
amount of $ 2,693,055.50 plus interest.  Exhibit 261.  The bases for the claim are 
summarized in the following paragraphs.  
The City and MCDA claimed GSA breached section 13.01 of the amended 
Development Agreement. They asserted GSA allowed BPT to take two months to propose 
an expensive remediation plan which exceeded the scope of remediation required by MPCA. 
Following the receipt of the BPT plan, they said, STS developed a remediation plan which 

  
 
 
 
  
  
 
     
    
    
 
 
   
 
          
  
   
   
57 CBCA 385 
cost $403,000 and which was approved by MPCA “ without modification in two days.” 
Despite the approval of the STS plan, however, the City and MCDA said the plan 
implemented by GSA exceeded the scope of remediation required by MPCA.  Exhibit 261 
at 4-5.  
The City and MCDA claimed GSA breached section 13.03 of the amended 
Development Agreement because the design plans for the building’s foundation were not 
prepared in consultation with the City and MCDA.  The City and MCDA said Turner 
“routinely rejected requests by STS to participate in the development of the foundation 
design and refused to provide STS with full-size copies of relevant portions of plans.”  The 
City and MCDA also said GSA insisted STS prepare its remediation plan without relevant 
design information, and routinely excluded the City and MCDA from remediation planning 
meetings.  Exhibit 261 at 5-6.  
The City and MCDA claimed GSA breached section 8.04 of the Development 
Agreement, which required GSA to limit project costs.  Here, they again asserted GSA 
allowed BPT to take two months to propose an expensive remediation plan which exceeded 
the scope of remediation required by MPCA.  Exhibit 261 at 6.  
The City and MCDA claimed they were not responsible for any delay to the contract 
completion date, and they listed what they considered examples of delay caused by GSA or 
BPT.  Among these are the length of time BPT took to prepare Alternatives A and B, the 
extravagance of Alternative A, STS’s lack of information vital to preparing its remediation 
plan, and BPT’s delay in beginning construction and its refusal to proceed with construction 
in the summer of 1994. The bases for many, if not most, of the examples set out in the claim 
are not supported in the evidence which is contained in our record. Some of the examples 
refer to events which occurred after price negotiations concluded and are, therefore, not 
relevant to the delay which had occurred when GSA modified BPT’s contract to extend the 
contract completion date by ninety days.  Exhibit 261 at 6-9. 
The amount requested by the City and MCDA in their claim is the sum of (a) $32,000 
for the cost of pumping water from the elevator pits in December 1994, (b) $294,338 in lost 
profits because the parking garage opened eleven months later than it should have, and (c) 
$2,366,717.50 of the $2,420,295 which MCDA deposited with GSA in September 1994. 
Exhibit 261 at 9-10.  
The City and MCDA arrived at the $2,366,717.50 as follows. They divided the 
$2,420,295 deposit into two parts:  $1,723,656 of what they called “time related costs” and 
$696,639 of what they called “remediation or otherwise fixed costs.”  They claimed the 
entire $1,723,656, which consisted of $1,219,900 of Turner’s costs, $251,828 which they 

  
 
 
 
 
         
  
 
   
  
    
 
      
 
  
 
   
 
  
58 CBCA 385 
said was the “settled amount” of BPT’s direct costs, $14,716 for BPT’s contingency, 
$141,212 for BPT’s home office overhead and profit, and $96,000 for GSA management 
and inspection costs.  They also claimed $643,061.50 of the $696,639 because, they said, 
$308,300 of the $696,639 was for the groundwater cutoff wall at the Flour Exchange 
Building and the underslab venting, which were not the responsibility of the City or MCDA; 
$100,310 of the $696,639 was for caisson installation work not related to remediation; and 
$126,912.50 of the $696,639 was for Turner’s extended general conditions attributable to 
remediation work for which the City and MCDA were not responsible.
5   Exhibit 261 at 
Exhibit D.  
The contracting officer denied the claim on August 9, 1999, and this appeal followed. 
Exhibits 258-59.  
Discussion 
In the claim, the City and MCDA requested the return of part of the $2,420,295 
deposit which was paid to GSA, plus $32,000 for pumping water from the elevator pits in 
December 1994, and $294,338 in lost profits because the parking garage opened eleven 
months later than expected.  In their post-hearing briefs, the City and MCDA do not pursue 
the latter two claims. However, they do ask to recover the entire $2,420,295 deposit.  Their 
theories as to why they are entitled to recover the entire deposit and the facts which support 
these theories are the same as those advanced by appellants when they claimed they were 
entitled to the return of only part of the deposit. 
Appellants bear the burden of proving their case by a preponderance of the evidence 
contained in our record.  McTeague Construction Co. v. General Services Administration, 
GSBCA 14765, 01-1 BCA ¶ 31,203 (2000).  We reach our decision by making the findings 
of fact set out above based upon a de novo examination of the evidence, and then applying 
the relevant legal principles and determining whether MCDA and the City have met their 
burden of proof.  Wilner v. United States , 24 F.3d 1397 (Fed. Cir. 1994) (en banc). 
The Development Agreement 
In March 1993, when GSA entered into the Development Agreement, it was aware 
of the existence of petroleum hydrocarbons on the site. There was no reason GSA should 
5 We are aware these latter three amounts do not add up to the total claimed for 
“remediation or otherwise fixed costs.”  Exhibit 261.  We cannot explain this discrepancy. 

 
 
 
      
 
    
 
     
  
   
    
  
        
 
       
    
 
  
   
  
  
59 CBCA 385 
have been concerned about this contamination, however, because the agreement said MCDA 
would make sure all adverse environmental conditions identified by the parties were 
remediated before the property was conveyed to GSA in November 1993.  When GSA took 
title, the property was supposed to be ready for construction to begin.  
When appellants entered into the Development Agreement, they intended to remediate 
the conditions found at the site by installing an STS system which used soil vapor extraction 
to remediate contaminated soil, and sparging, extraction, and treatment to remediate 
contaminated groundwater.  MPCA’s approval of this system meant the Petrofund would 
reimburse MCDA’s costs, which were estimated to be $51,000. 
Gradually, appellants realized they might not be able to remediate the conditions at 
the site in time to convey the property to GSA as scheduled. STS’s system began operating 
in mid-May 1993, but it had to be removed in late September 1993, so MCDA could 
demolish the existing structures on the property. A key component of the STS system was 
the removal of groundwater, but no groundwater was extracted after demolition began due 
to a threat of suit by the Flour Exchange Building. MCDA evaluated the results of the 
remediation efforts in mid-October and told GSA it might need more time to remediate the 
site.  Shortly before the demolition work ended in mid-November, MCDA and STS decided 
to add several new components to the STS system when it was reinstalled in order to 
maximize the remediation effort. 
Although appellants told GSA they fully accepted the responsibilities which the 
Development Agreement imposed upon them, they also told GSA remediation could take an 
extended period of time. GSA, however, needed to move forward with the design/build 
procurement as appellants knew from the timetable set out in the Development Agreement. 
Appellants made several suggestions as to how GSA could remedy the conditions at the site. 
GSA rejected the suggestion that it take title to the site in its then-current condition, that it 
amend the design/build solicitation to impose limitations upon excavation at the site, and that 
it assume responsibility for excavation and remediation of contaminated soil and 
groundwater.  GSA reminded appellants they were obligated to remediate the site and to 
convey it in a condition which would allow construction to begin. 
In mid-December 1993, when the parties began negotiating an amendment to the 
Development Agreement, GSA made clear to appellants that neither it nor its design/build 
contractor would bear any of the costs associated with remediating the site.  GSA proposed 
that instead of bearing the cost of remediating the site before it was conveyed to GSA, 
appellants would bear the cost of a contract modification which required the design/build 
contractor to carry out remediation efforts 
in conjunction with the excavation and foundation 

    
 
 
 
  
   
   
 
 
  
  
 
 
 
 
 
 
 
 
60 CBCA 385 
phases of construction  after the site was conveyed to GSA.  GSA proposed making the 
contractor’s foundation plans available to appellants for review, consultation, and comment. 
In response to GSA’s proposed amendment to the Development Agreement, 
appellants suggested amending the Development Agreement in a manner which would limit 
their obligations to GSA.  Instead of remediating all identified environmental conditions as 
required by the Development Agreement, they wanted to limit their responsibility to the 
remediation of contamination caused by petroleum.  They wanted to approve the design/build 
contractor’s foundation plans.  They wanted to eliminate a provision proposed by GSA which 
said the design/build contractor would not be required to alter its awarded design, the 
remediation plan, or the project schedule in order to achieve a less costly remediation effort. 
They wanted GSA to use its best efforts to make sure the design/build contractor 
implemented the least costly remediation design.  They did not want to pay delay costs or 
GSA’s administrative costs.  
The parties amended the Development Agreement in mid-January 1994.  The 
amended agreement did not alter the relative positions of the parties, so far as responsibility 
for the cost of remediating the site was concerned.  Section 13.04 said GSA would issue a 
modification to the design/build contractor to effect the appropriate remediation efforts in 
conjunction with the excavation and foundation phases of construction, and MCDA would 
pay the cost of the modification, including but not limited to design, construction, overhead 
and profit, delay costs, and all associated management and inspection costs.  
Section 13.03 of the amended Development Agreement said immediately after award 
of the design/build contract, GSA would advise the contractor in writing that the contractor’s 
development of the design plans for the foundation of the project and the garage would be 
prepared in consultation with GSA, MCDA, the City, and MPCA in a manner which 
addressed the remediation effort to be undertaken by the design/build contractor during the 
excavation and foundation phases of construction.  According to appellants, GSA did not 
provide such written advice, and this failure constituted a breach of the amended 
Development Agreement and resulted in a delay to completion of the project.  This breach, 
they say, resulted in a breach of section 8.04 of the Development Agreement and section 
13.07 of the amended Development Agreement, which address cost containment. 
Appellants’ Brief at 13-14, 24; Appellants’ Reply Brief at 2. 
BPT received the written advice required by section 13.03 of the amended 
Development Agreement because it received a copy of the entire amended agreement not 
later than March 22, when it provided a copy to its architect and to Turner.  The record does 
not establish that anyone other than GSA provided BPT with the amended agreement.  BPT 
had the amended agreement in hand within approximately one month after award of the 

 
   
 
     
 
    
 
 
  
 
  
    
 
 
 
  
  
   
    
 
     
 
  
 
61 CBCA 385 
design/build contract, within four days after it received the notice to proceed, and several 
months before its preliminary construction plans were due, which left ample time for it to 
consult about foundation plans. For these reasons, we reject appellants’ argument that GSA 
breached the amended Development Agreement and delayed BPT’s progress by failing to 
advise BPT as required by section 13.03. 
Sections 13.03 and 13.04 of the amended Development Agreement said GSA would 
modify BPT’s contract to require it to design a remediation plan and to require it to remediate 
the site, and recognized BPT would undertake its remediation efforts in conjunction with the 
excavation and foundation phases of construction. In mid-February, GSA asked Sverdrup 
to draft a request for proposals for environmental cleanup at the site.  Although Sverdrup 
produced a draft, GSA never used it, so far as our record shows.  
According to appellants, GSA breached the amended Development Agreement in mid-
February, when it asked Sverdrup to prepare the request for proposals for environmental 
cleanup.  Even though GSA never issued the request for proposals which Sverdrup drafted, 
appellants complain because they were not involved in asking Sverdrup to prepare the draft. 
Appellants’ Brief at 14.  Section 13.07 of the amended Development Agreement said all 
matters affecting the administration of BPT’s contract were solely within GSA’s authority 
and area of responsibility. GSA’s asking Sverdrup to draft a request for proposals to change 
the terms of the design/build contract falls squarely within the bounds of contract 
administration.  GSA did not breach the amended agreement when it asked Sverdrup to 
prepare a request for proposals. 
BPT’s response to the remediation RFP 
On March 18, 1994, GSA sent BPT the remediation RFP which asked BPT for a 
proposal to provide the services needed to design the remediation of the site including, if 
necessary, the services needed to redesign of the foundation plans.  Although GSA originally 
asked BPT to provide its proposal in response to the remediation RFP within ten days, GSA 
later told BPT it could have additional time to respond.  
BPT, Turner, GME, and Ericksen worked for several weeks to prepare a response to 
the remediation RFP.  Although the remediation RFP did not ask BPT to develop a 
remediation plan or to redesign its foundation plans, BPT needed to develop its ideas about 
remediation to the point where it could provide a proposal, including a price proposal, to 
provide the services which would be needed to design the remediation of the site and to 
determine whether it would be necessary to redesign the foundation plans.  During the time 
BPT’s team was developing a response to the remediation RFP, the members of the team 

     
        
     
 
  
    
  
 
  
  
 
   
 
 
 
 
    
 
  
   
  
62 CBCA 385 
were well aware of the possibility of a delay to the completion of the project and they were 
thinking of ways to overcome any delay.  
On June 2, GSA, TLPA, Sverdrup, MPCA, BPT, Turner, GME, MCDA, and STS met 
to review and evaluate BPT’s response to the remediation RFP.  BPT’s response included 
prices for providing the services needed to design the two remediation concepts which BPT 
had developed.  One concept was to isolate the entire site and the other was to isolate the 
north part of the site.  
Appellants contend GSA breached section 13.03 between March 18 and June 1, 
because GSA did not make sure BPT coordinated with appellants while BPT prepared its 
response to the remediation RFP.  This breach, say appellants, resulted in delays and breaches 
of sections 8.04 of the Development Agreement and 13.07 of the amended Development 
Agreement, which address cost containment.  Appellants make several factual assertions in 
support of their argument.  They say although they attended a meeting with BPT on 
March 25, the purpose of this meeting was for BPT to gather, not share, information.  They 
allege that soon after the March 25 meeting, BPT began secretly discussing and working on 
remedial designs.  Appellants also say GSA neglected for many weeks to ask BPT for a 
progress report regarding BPT’s response to the remediation RFP.  Appellants complain 
because as BPT developed the two concepts it presented on June 2, it ignored STS and 
MCDA, who, according to appellants, were the most experienced and knew the most about 
the remediation issues at the site.  Appellants complain because BPT contacted MPCA while 
it was preparing its response to the remediation RFP, but did not share any information or 
consult with appellants.  All of these facts, say appellants, show GSA failed to coordinate 
BPT’s efforts with appellants, and this failure constituted a breach of section 13.03 which 
resulted in delays and increased costs.  Appellants’ Brief at 14-17, 25-26; Appellants’ Reply 
Brief at 2-4. 
Section 13.03 did not obligate GSA to ensure BPT worked together with appellants 
between March 18 and June 1, when BPT prepared its response to the remediation RFP. 
Section 13.03 said BPT was to consult with GSA, MPCA, and appellants when it prepared 
its foundation design plans in a manner which addressed the necessary remediation effort, 
and said appellants were to participate with GSA and MPCA in reviewing, consulting about, 
and commenting on the foundation design plans and BPT’s remediation plan, including the 
costs of these plans. When BPT prepared its response to the remediation RFP, the activity 
contemplated by Section 13.03 could not have taken place because the time had not yet 
arrived for preparing foundation design plans or a remediation plan. BPT planned to prepare 
its foundation plans while excavation was taking place.  It was not scheduled to submit 
preliminary building design plans to GSA until mid-July, and final plans were not due until 
September.  The remediation RFP did not change this schedule.  Even if BPT had been 

 
        
 
     
 
 
     
 
 
 
  
          
      
  
 
 
  
  
    
63 CBCA 385 
preparing foundation design plans between March 18 and June 1, it could not have consulted 
with appellants regarding the preparation of the plans in a manner which addressed the 
necessary remediation effort, because no one knew what the necessary remediation effort 
would be. The remediation RFP did not ask BPT to develop a remediation plan and BPT 
never had the opportunity to prepare a remediation plan because on June 2, appellants 
rejected both of the alternative concepts which could have formed the basis for a BPT 
remediation plan.  
Although section 13.03 of the amended Development Agreement did not obligate 
GSA to ensure BPT worked together with appellants when BPT prepared its response to the 
remediation RFP, we consider below whether the factual assertions appellants make in 
support of their position show GSA’s actions resulted in delays or additional costs. 
Although appellants contend the purpose of the March 25 meeting was for BPT to 
gather, not share, information, this is not supported by the evidence contained in our record. 
On March 25, one week after BPT received the request for proposals, BPT, Turner, Ericksen, 
and GME met with GSA, Sverdrup, TLPA, MPCA, MCDA, and STS.  They discussed the 
status of the site, MCDA’s remediation efforts, the remediation goals for the project, and 
issues of design and construction.  They discussed the fact that the contaminated groundwater 
in the northeast part of the site could not be remediated using the techniques which had been 
used to date, and could not be removed due to concerns about the Flour Exchange Building. 
MPCA said the contaminated groundwater could remain in place, which was a possibility 
MPCA had not mentioned before. BPT provided a foundation plan sketch which showed the 
elevations of planned excavation across the site.  The foundation was to be a slab-on-grade 
one or two feet above the bedrock in the south part of the site.  To the north, excavation 
would remain ten to eighteen feet above bedrock, and the foundation would be four-foot to 
six-foot diameter caissons set into bedrock. The parties then discussed methods of drilling 
the caissons that would be acceptable to MPCA.  We conclude that at the March 25 meeting 
BPT gathered information and also provided information regarding its planned excavation 
and foundation work.  
Appellants allege that soon after the March 25 meeting, BPT began secretly discussing 
and working on remedial designs while it was preparing its response to the request for 
proposals.  Appellants complain because these discussions and this work occurred only 
among members of BPT’s team.  Between March 18 and June 1, GME and Ericksen gave 
BPT several ideas for remediation concepts.  Some ideas were rejected and others were 
refined.  After BPT’s team members arrived at two concepts for remediating the site, they 
began preparing estimates of the cost of providing the services needed to design the 
remediation of the site based upon the two concepts. In addition, Turner prepared a scope 
of work for excavation, sheeting and bracing, and soil remediation based upon one of the 

 
 
      
 
    
 
  
   
 
  
 
 
        
   
  
  
 
     
      
   
   
    
     
              
 
  
 
  
64 CBCA 385 
alternatives and met with MCDA about this scope of work in late May.  Turner was also 
working on a plan to overcome delays to completion of the project.  Between March 18 and 
June 1, BPT worked diligently to develop remediation design concepts which would allow 
it to prepare a proposal for providing the services needed to design the remediation of the 
site.  As GSA realized, it was important that BPT be allowed to determine and propose the 
services it would need in order to remediate the site because it would be expected to carry 
out the remediation work.  Two experts in commercial construction and in construction 
management and scheduling did not believe BPT took an excessive amount of time to 
develop its alternative remediation concepts in response to the request for proposals.  The 
record does not establish that added costs or delay resulted because GSA allowed BPT to 
work with its team in order to develop its response to the remediation RFP. 
Appellants say GSA did not ask BPT for any progress reports between March 18 and 
June 1.  The record shows BPT contacted GSA on April 21 or 22 and told GSA of the 
alternatives developed by GME.  BPT also told GSA it was in the process of preparing 
pricing and delay estimates based upon the alternatives.  GSA contacted BPT on May 19, and 
asked for a response to the request for proposals so it could continue discussions with 
appellants and MPCA.  On May 26, TLPA, MPCA, MCDA, Turner, and BPT met to review 
Turner’s statement of work for excavation, sheeting and bracing, and soil remediation.  GSA 
did not prod BPT for a response to the request for proposals, because GSA decided BPT 
should be allowed to determine the services which would be needed in order to respond to 
the request for proposals and GSA was not inclined to interfere with BPT’s work.  Even if 
GSA had kept in close contact with BPT, there is no evidence to show this would have 
caused BPT to respond sooner than it did.  As we said in the previous paragraph, two 
construction experts did not think BPT took an inordinate amount of time to respond to the 
request for proposals.  The record does not establish that added costs or delay resulted 
because GSA did not have more contact with BPT between March 18 and June 1. 
Appellants complain because while BPT worked to develop the two design concepts 
which it presented on June 2, it ignored STS and MCDA, who, according to appellants, were 
more experienced and knew more about the issues at the site than did BPT.  Although STS 
and MCDA knew a great deal about the site, the condition of the site had been well 
documented in various reports by the time BPT received the design/build contract and GSA 
had provided several of these reports to the design/build contract offerors.  In addition, GME 
was a part of BPT’s team and provided the same services as did STS. MCDA had known 
for three years that the site would have to be remediated, and had hired STS to design and 
implement a remediation plan nearly one year earlier.  The site, however, was still 
contaminated and BPT was faced with a 915-day deadline for not only remediating the site, 
but also completing a major construction project.  If BPT decided not to tread the path that 
had failed to lead to success in the past and decided instead to assemble its own team and 

  
 
  
  
     
 
 
  
 
 
    
 
 
  
   
  
  
 
  
   
65 CBCA 385 
develop its own concepts, this was a reasonable course to follow.  BPT had to bear the costs 
of responding to the remediation RFP, and it had no incentive to make this effort any more 
prolonged or costly than necessary.  The record does not establish that BPT’s costs would 
have been lower or that its work would have progressed faster if it had worked with STS and 
MCDA between March 18 and June 1.  
Regarding contact with MPCA, the record establishes that in mid-April, GME sent 
a letter to MPCA which contained a description of foundation construction, so MPCA could 
confirm 
that it would approve installing caissons through contaminated soil, as it had said 
it would do at the March 25 meeting.  GME provided a diagram of its proposed method for 
installing caissons.  GME also provided MPCA with a description of the excavation plan and 
said a key element of the plan was GME’s understanding that MPCA would allow some 
contaminated soil to remain in place.  BPT’s decision to confer with MPCA instead of 
appellants regarding the installation of the caissons is understandable because MPCA, not 
appellants, had the authority to decide whether the procedure would be acceptable and GME 
needed approval from MPCA, not appellants, in order to leave contaminated material in place 
at the site.  We are not convinced costs were incurred or delays were experienced because 
BPT worked with MPCA regarding the procedure for installing caissons.  
The June 2 meeting 
BPT responded to the remediation RFP on June 1.  GSA, TLPA, Sverdrup, MPCA, 
BPT, Turner, GME, MCDA, and STS met on June 2, to review and evaluate the two design 
concepts which BPT had developed.  The importance to BPT of indemnification became 
clear and this subject was discussed throughout the meeting.  BPT’s Alternative A was to 
isolate the entire site by building a grout curtain cutoff wall around the site and excavating 
to bedrock. Its Alternative B, which assumed it would be indemnified against future claims, 
was to isolate the Flour Exchange Building and the north part of the site, and allow 
contaminated soil and water to remain in place if they did not need to be excavated during 
construction.  MCDA rejected both ideas.  Although our record contains no reason for its 
objection to Alternative B, other than to hint it might have been because it did not want to 
provide the indemnification associated with this alternative, MCDA objected to Alternative 
A as being more than the minimum cleanup which MPCA would allow to take place. 
MCDA said it would not pay for either alternative. 
Before the June 2 meeting, appellants asked STS to develop a conceptual design for 
a remediation system, which gives the impression they did not come to the June 2 meeting 
prepared to follow the process contemplated by the amended Development Agreement which 
said the design/build contractor would develop the remediation design. Appellants’ reaction 
to BPT’s response to the remediation RFP is difficult to reconcile with the terms of the 

   
   
 
 
   
 
 
 
  
 
 
  
 
  
   
 
 
  
    
 
66 CBCA 385 
amended Development Agreement.  Section 13.03 said the design/build contractor’s 
remediation plan could include, among other things, removing the remaining contaminated 
soil, removing and treating the contaminated groundwater, sealing the site from the 
contaminated groundwater, and isolating the site from adjacent properties.  BPT’s alternative 
responses to the request for proposals included removing the contaminated soil, sealing the 
site from the contaminated groundwater, and isolating the site from adjacent properties. 
Thus, BPT’s concepts were well within the range of the acceptable remedial actions 
contemplated by GSA and appellants when they entered into the amended agreement.  The 
amended Development Agreement did not require the design/build contractor to implement 
the least costly remediation design.  Yet, appellants said they would not pay for either of 
BPT’s two concepts.  Instead of discussing either of BPT’s concepts when they had the 
opportunity to do so on June 2, appellants flatly rejected BPT’s ideas and said they would not 
pay for either of them. 
Appellants contend GSA breached Section 13.03 of the amended Development 
Agreement, which said BPT would develop a remediation plan, when it asked MCDA and 
STS to replace BPT as the designer of the remediation plan.  This breach, say appellants, 
resulted in a breach of section 8.04 of the Development Agreement and section 13.07 of the 
amended Development Agreement because appellants had to pay STS to develop a plan. 
Appellants’ Brief at 4, 19, 26, 31-32; Appellants’ Reply Brief at 5, 13.  According to the 
record, at the June 2 meeting, after MCDA said it would not pay for either of BPT’s 
concepts, GSA suggested that MCDA provide a remedial design which BPT could 
implement. MCDA then asked STS to provide such a design.  Before the June 2 meeting, 
MCDA had asked STS to develop a conceptual design for a remediation system, and at the 
meeting, everyone agreed it would be acceptable if STS and MCDA provided the design. 
We cannot fault GSA for trying to find a solution to the problem which was created when 
appellants rejected both of BPT’s concepts out of hand.  In addition, there is no proof that 
STS’s remediation plan design costs exceeded those appellants would have paid GSA for 
BPT’s remediation plan design costs.  
Appellants say GSA allowed BPT to develop its alternative concepts in order to 
protect BPT’s team from liability instead of developing concepts to provide value and 
minimize costs as required by section 8.04 of the Development Agreement and section 13.07 
of the amended Development Agreement. Appellants’ Brief at 25; Appellants’ Reply at 2-4. 
Clearly, BPT developed its alternative concepts with a view toward whether it would be 
indemnified against potential future liability.  Alternative B called for leaving contaminated 
soil and water in place at the site, and this left BPT open to potential claims if the 
contaminants migrated from the site or into the new construction.  BPT’s insistence upon 
indemnification was understandable.  Leaving contaminated materials in place at a site could 
create future risks and BPT’s contract did not make it responsible for bearing such risks. 

 
   
  
 
     
  
    
 
 
   
 
  
 
     
 
     
 
  
  
67 CBCA 385 
Appellants had no legitimate expectation that BPT would propose a remediation idea which 
would leave it exposed to potential liability for contamination-related claims, when the 
amended Development Agreement said appellants were to bear the cost of a contract 
modification to remediate the site. 
The importance of an indemnification agreement became clear at the June 2 meeting, 
and GSA and BPT continued to emphasize its importance during the succeeding months.  On 
June 27, appellants sent BPT draft language for an agreement which would indemnify BPT 
and Turner against potential future liability.  On July 14, BPT asked that indemnification be 
extended to its architect.  On July 27, appellants sent BPT another draft agreement which 
included BPT’s architect.  The parties continued to negotiate the terms of the agreement. 
MCDA signed the final indemnification agreement and sent it to BPT on September 19.  
In the opinion of the scheduling expert who examined the delay to BPT’s progress, 
the lack of an indemnification agreement caused the delay.  Appellants contend there are 
three reasons they are not responsible for the cost of this delay.  Appellants’ Brief at 18-19, 
29; Appellants’ Reply at 9-11.   
First, appellants say there should have been no delay to BPT’s progress because 
appellants orally committed to indemnify BPT in June.  In support of this position, appellants 
rely upon the recollection of an expert witness who reviewed documents related to the 
design/build contract, not the testimony of a fact witness.  The contemporaneous written 
record does not show appellants orally committed to indemnify BPT in June.  The record 
establishes that on June 6, appellants told GSA they were prepared to indemnify BPT as a 
last resort, although they hoped GSA would be able to help appellants avoid this.  This was 
hardly a commitment to indemnify BPT. 
Second, appellants say the delay which BPT experienced was not excusable since BPT 
knew of the contamination at the site when GSA awarded the design/build contract. 
Appellants say BPT should not have entered into the contract without taking into account the 
contamination at the site and the need for indemnification or insurance.  If BPT did not 
assess this risk appropriately, this is a risk it ought to bear, say appellants.  What BPT knew 
when it entered into the contract was what it had been told in the December 1993 amendment 
to the design/build RFP.  In the amendment, GSA told offerors there were at least two areas 
of contamination at the site which appellants were working to remediate. GSA said the exact 
condition of the site would not be known when it awarded the design/build contract and also 
said it would modify the design/build contract if any further remediation efforts and/or 
foundation work was required so the contractor could perform such work.  This information 
did not require BPT to take the possibility of contamination into account when it entered into 
the design/build contract with GSA because the amendment said if any work was required 

 
 
 
 
  
 
       
 
      
  
  
  
   
 
   
  
68 CBCA 385 
by BPT to remediate the site, the contract would be modified to include such work.  The 
contract, as awarded, did not include any work related to contamination remediation and 
therefore BPT appropriately did not take such work into account when it responded to the 
design/build RFP.  
Third, appellants say they were not required by the terms of the amended 
Development Agreement to provide BPT with indemnification, so they cannot be responsible 
if the lack of indemnification caused a delay to BPT’s progress.  However, appellants were 
required to bear the cost of a contract modification to remediate the site.  On June 2, BPT 
presented two remediation concepts, one of which called for removing all contaminated 
material from the site and the other of which called for leaving contaminated material in 
place and obtaining indemnification for potential future liabilities.  Because appellants 
insisted at the June 2 meeting that the site be remediated in such a way as to leave 
contaminated material in place, and because this insistence led directly to the need to 
indemnify BPT, the cost of indemnifying BPT from future potential liability was appellants’ 
cost to bear. 
Turner’s progress in June, July, and August 
Despite the lack of indemnification, Turner accomplished some work in June, July, 
and August. Appellants contend they are not responsible for any delays to BPT’s progress 
because Turner voluntarily suspended its work during these months and caused the delay 
which occurred.  Appellants’ Brief at 21.  In order to evaluate appellants’ argument, we 
reviewed the work Turner performed during these months. 
On June 6, a few days ahead of schedule, Turner began demolition of the old 
foundations and foundation walls which remained along the perimeter of the site, and also 
began mobilization work for its pile driving operation.  While the remediation issue was 
being resolved, Turner thought it could install soldier piles until it had to penetrate the clay 
layer or remove soil. Turner did not know which soil was considered contaminated so it 
could not move any soil away from the site, and the stockpiled soil soon began to congest 
Turner’s work area.  As of June 13, MCDA’s removal of soil which had been stockpiled 
during previous remediation efforts was going well, but affected soils in the middle of the 
site needed to be removed as soon as possible.  On June 17, Turner’s excavator had 
completed all it could do for the time being and it left the job in the afternoon.  The existing 
perimeter foundation walls and below grade walls had been demolished on the north, west, 
and south sides of the site.  None of the soil and building materials had been moved offsite 
as would typically be done, however, due to the remediation issue not being resolved. 

 
 
   
   
  
    
 
 
 
  
 
 
 
 
            
 
 
    
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As of June 24, Turner needed to work in the north part of the site where contamination 
had been found and where the courthouse would be located.  Turner did not want to continue 
to work without the indemnification issue being resolved, but appellants had not drafted an 
indemnification agreement.  Turner could not drive piles into bedrock on the west side of the 
site because it had not been told it was permitted to do so.  When MPCA said it had no 
objection to Turner driving piles along the west side of the site, Turner agreed to resume 
installation of the pile and lagging retention system along the west, south, and east sides of 
the site, and begin bulk excavation and removal of non-contaminated soils.  It also agreed 
to excavate contaminated material and load it into trucks provided by MCDA.  Turner agreed 
to perform this work with the understanding that some sort of indemnification agreement 
would be in place by July 9, and that STS would be on site to monitor the excavated soils. 
Turner planned to be ready to install caissons beside the Flour Exchange Building in two 
weeks if a soil remediation plan and indemnification agreement were in place.  
Turner returned to work in areas not affected by contamination on June 30.  By July 6, 
it had installed sheet pile and lagging along the north side of the site and two-thirds of the 
way along the west side of the site.  Concrete rubble from demolition was piled in the middle 
of the site and soil was stockpiled at the south end of the site.  
Turner began bulk excavation in the south half of the site on July 6, and its excavation 
subcontractor hauled the excavated material to a location where a state agency needed fill 
dirt.  Shortly before noon on July 7, the state agency stopped Turner’s subcontractor from 
depositing the excavated materials because the agency was concerned that the materials were 
contaminated. There was no hauling of excavated materials on July 8.  By July 8, Turner had 
installed sheet pile along most of the west side of the site.  
There was a meeting at the job site on July 12 to discuss the procedure for excavating 
and removing material so Turner could resume its excavation work.  STS agreed it would be 
at the site whenever excavation occurred and would test and monitor excavated material at 
the site.  GME would monitor and test the material at the state agency site and would 
complete a manifest for each load.  Turner said it would meet with the state agency and 
explain this process so hauling could resume.  Excavation and hauling began again on 
July 14. During excavation, Turner encountered perched water at a higher elevation than 
expected.  
In late July, BPT told GSA excavation could not take place until MPCA approved a 
revised MCDA drawing which showed contaminated and non-contaminated areas of soil at 
the site.  On August 1, BPT told GSA it could resume hauling non-contaminated soils from 
the site because it received a copy of a letter from MPCA to STS dated July 28, which agreed 
with STS’s description of the boundaries of the contaminated areas within the site. 

 
 
   
       
  
 
      
 
 
 
 
   
        
 
  
 
   
 
  
70 CBCA 385 
In August, while the STS remediation plan was being finalized, reviewed, and 
approved, Turner resumed its construction activities.  On August 10, BPT told GSA that 
Turner would soon begin installing five caissons next to the Flour Exchange Building using 
the special installation method made necessary by the presence of contaminated soil and 
water.  Turner began installing the first caisson on August 15, and encountered a problem 
almost immediately.  While Turner was drilling a caisson in the contaminated area next to 
the Flour Exchange Building, water seeped into the caisson and rose to a depth of five feet. 
The next morning, Turner, BPT, and the STS technician on site tried to contact someone 
from STS to come to the site and offer a solution to the problem. That afternoon, an STS 
representative came to the job site.  The following morning, August 17, STS provided a 
written recommendation for solving the problem with the first caisson and a procedure for 
installing the remaining caissons.  
On August 19, BPT told GSA that progress on critical construction activities was at 
a standstill.  BPT said Turner had installed the retention system and one caisson according 
to the STS plan.  Excavation had started and stopped due to lack of proper delineation of 
contaminated areas and lack of an approved plan to show to those who might be able to 
receive excavated materials.  
On August 31, Turner complained to BPT about its inability to accomplish any 
meaningful work.  Turner told BPT it had studied the possibility of performing work out of 
the planned sequence of work, in an area which was supposedly not contaminated.  However, 
it seemed to Turner that work in the area would be quite restricted until measures had been 
taken to make sure contaminants from other parts of the site did not migrate to the area. 
Also, accomplishing work in this way would be quite inefficient.  
Turner had resumed its excavation operations by September 8.  On September 12, STS 
found a localized area of odorous soil and sent samples for analysis.  On September 13, STS 
found more such soil plus contaminated soil at random locations throughout the southwest 
part of the site and outside the area that was identified in the remediation plan as containing 
contaminated soil.  Turner had no place to work productively until the conditions could be 
more thoroughly analyzed.  
In summary, Turner started work a few days before the date it expected to begin. 
However, it stopped work several times when it encountered remediation-related issues 
which needed to be resolved. The starting and stopping continued until the indemnification 
agreement was in place and GSA issued the notice to proceed on September 26.  During 
June, July, and most of August, Turner worked without having either a remediation plan or 
an indemnification agreement in place.  It repeatedly expressed its concern about delays and 
tried to make plans to overcome these delays. Turner had no guarantee it would be 

    
  
 
  
   
   
   
      
 
 
 
 
 
 
 
    
    
      
 
     
   
71 CBCA 385 
compensated for any delays it experienced, so it was not in Turner’s interest to suspend its 
work voluntarily.  We agree with the scheduling expert who concluded Turner’s halting 
progress was not due to its voluntary decision to suspend its work.  
STS’s remediation plan 
While Turner was working at the site in June, July, and August, STS was developing 
its remediation plan.   Appellants say MPCA issued an approval letter for an STS remediation 
plan on June 16.  Appellants’ Brief at 20.  This is not supported by the record.  MPCA’s 
June 16 letter said BPT had developed two preliminary concepts for a remediation plan, 
noted STS was working to develop a plan, and said it would need to review any such plan. 
Clearly, this letter did not amount to the approval of a remediation plan. 
STS circulated an initial work plan on June 17.  On July 6, STS produced its 
construction soil remediation plan, which was a substantial revision of its June 17 work plan. 
On July 26, STS completed its environmental construction plan, which was a fairly extensive 
revision of the July 6 plan. On August 9, STS finished a revised version of its environmental 
construction plan, and on August 22, STS completed additional revisions to the plan.  STS 
made minor amendments to the plan on August 25.  On August 26, MPCA and GSA 
approved the August 22 plan, as amended.  
The concept which underlies the remediation plan developed by STS is very similar 
to BPT’s Alternative B, which appellants summarily dismissed on June 2.  Both Alternative 
B and the STS plan called for leaving contaminated water and some contaminated soil in 
place at the site.  Like Alternative B, the STS plan included a cutoff wall running east to west 
across the site, beginning near the southwest corner of the Flour Exchange Building, to 
separate the relatively uncontaminated south part of the site where deep excavation would 
occur from the north part of the site where most of the contaminated soil and water were 
expected to be located.  While Alternative B called for isolating the entire north part of the 
site, the STS plan extended the cutoff wall nearly all the way across the site and isolated only 
the area where the elevator pits were located within the north part of the site.  The cutoff wall 
proposed by STS’s plan was approximately 75% as long as the distance around the perimeter 
of the entire north part of the site.  Alternative B called for underpinning the west wall of the 
Flour Exchange Building unless MPCA would allow contaminated soil to be left in place 
near this building. Based upon MPCA’s decision, made after BPT presented Alternative B, 
that contaminated soil could be left in place near the Flour Exchange Building, the STS plan 
did not require underpinning the entire west wall.  Although STS’s plan included many 
details which Alternative B did not, Alternative B was only meant to set out a concept for a 
remediation design which BPT could have begun developing on June 2, while STS 
developed a complete remediation plan.  

 
   
  
      
       
  
    
    
  
   
 
  
 
   
   
  
  
 
   
  
    
72 CBCA 385 
Appellants argue if they are responsible for the delay which occurred as the result of 
not having an indemnification agreement in place, GSA is responsible for concurrent delay 
which occurred as the result of not having an approved STS remediation plan in place until 
August 26.  In support of this argument, appellants say that as of the June 2 meeting, STS had 
not received GME’s boring logs or information regarding the location of foundation 
elements, caissons, elevator pits, and the depths of planned excavation. Appellants’ Brief 
at 19-20.  There is no reason, however, why STS had any need for such information as of the 
June 2 meeting because until this meeting, during which appellants rejected both of BPT’s 
concepts, STS was not responsible for designing the remediation plan. 
In support of their concurrent delay argument, appellants also say BPT delayed 
providing STS with GME’s boring information and information regarding the foundation, 
elevators, and excavation. Appellants say STS did not receive the information it needed to 
develop a remediation plan until June 13.  They also contend STS needed more detailed 
structural plans than BPT had developed as of June 24, in order to develop a system for 
controlling vapors in the building.  Appellants’ Brief at 3, 19-21, 30; Appellants’ Reply Brief 
at 12.  
The record shows STS asked for GME’s boring logs on June 2.  BPT was not 
obligated to provide this information because it had been developed entirely at BPT’s 
expense.  Nonetheless, GME provided its boring logs to STS by June 9.  On June 8, BPT 
provided STS with the Level 1 basement plan as it had been submitted to GSA pre-award. 
BPT explained that every column shown on the plan would be built over a caisson socketed 
into rock, and showed on the plan the approximate location of the wall between the portion 
of the site to be excavated to bedrock and the portion to be excavated to a lesser depth. 
On June 9, STS said it had been able to use the drawings BPT provided.  It had 
concluded the installation of Turner’s pile and lagging retention system would not require 
any special construction methods because the soldier piles would not penetrate the clay layer. 
BPT had provided STS with drawings of typical caisson construction.  Turner and STS 
discussed Turner’s plan to underpin the Flour Exchange Building and they agreed 
underpinning was necessary only at the southwest corner of the building.  Turner gave STS 
the estimated elevations of the floor of the new building and the bottom of the footings 
located at the southwest corner of the Flour Exchange Building.  
In a June 13 meeting, STS received answers to many of its questions.  BPT explained 
it could provide STS with a copy of BPT’s best and final offer plans.  However,  preliminary 
building design plans were not due from BPT to GSA until mid-July, and final design plans 
were not due until September. STS said the caisson design outlined by GME was acceptable 
and STS would decide which locations needed to use the design and how to deal with the 

  
  
   
  
    
       
    
  
  
           
    
  
  
   
        
   
  
  
   
 
      
 
73 CBCA 385 
spoils from the installation, recognizing that the exact locations of caissons and pilings were 
in the process of being designed by BPT.  Also discussed at the June 13 meeting was the 
system of underpinning at the southwest corner of the Flour Exchange Building proposed by 
BPT in its best and final offer. STS was going to recommend what system should be placed 
at this location and the extent of the underpinning.  The cutoff wall which STS was to design 
to divide the north and south parts of the site would most likely be connected to the 
underpinning in order to provide a continuous barrier. Elevator shafts would penetrate the 
clay layer to rock and STS was to provide the design for this installation.  In addition, STS 
would provide a plan for venting the occupied spaces in the basement and the electrical 
vaults. 
STS said at a June 24 meeting that it could provide a more complete remediation plan 
if it had structural drawings, but it understood drawings had not yet been developed by BPT. 
STS had been given access to the available project drawings.  STS saw on the drawings that 
three elevator shafts would need to be constructed in an area containing contaminated 
materials and the meeting attendees felt STS could provide BPT with sufficient details so the 
shafts could be constructed in this area.  
The evidence does not establish GSA is responsible for any concurrent delay to the 
completion of the project which occurred because STS’s plan was not in place until 
August 26.  Between June 2 and June 13, GSA, BPT, and Turner gave STS the information 
it needed to prepare an acceptable remediation plan. Between June 2 and August 26, GSA, 
BPT, and Turner met numerous times with STS and provided STS with as much information 
as they had available.  If BPT did not provide the plans STS wanted, this was because BPT 
reasonably did not yet have them.  GSA, BPT, and Turner and their consultants reviewed 
STS’s drafts promptly and provided relevant, useful feedback and suggestions.  Based upon 
these facts, we are not persuaded that GSA was responsible for any concurrent delay which 
occurred as the result of not having the approved STS remediation plan in place until August 
26.  
Appellants argue if the initial STS remediation system, which called for air sparging 
and soil vapor extraction, had been left in place, it would have been able to remediate the site 
by the time BPT was ready to begin its construction work.  Appellants imply that the 
remediation plan which STS developed in June, July, and August 1994 was not required in 
order to remediate the site to MPCA’s standards and, therefore, the costs which resulted from 
implementing the plan were not necessary and exceeded the costs which the amended 
Development Agreement required appellants to pay.  This, say appellants, resulted in a 
breach of section 13.01 of the amended Development Agreement, which said MCDA agreed 
to pursue and fund remediation of contamination, and which said the definition of 

  
  
     
 
 
 
  
 
  
  
              
  
   
        
   
            
 
   
     
 
    
 
    
 
74 CBCA 385 
contamination and the standard of remediation were to be in accordance with the rules, 
regulations, and determinations of MPCA.  Appellants’ Reply Brief at 6. 
STS’s initial remediation system relied upon groundwater extraction as the primary 
means of removing contaminants from the site.  However, when STS designed its system, 
it did not know it would unable to remove groundwater due to the concerns of the Flour 
Exchange Building. Also, STS did not know the groundwater was recharging.  In addition, 
when STS designed and began operating its system in mid-May 1993, it did not know the 
Development Agreement called for MCDA to convey the site to GSA in November 1993. 
MPCA approved the initial STS system based upon MPCA’s understanding that the date 
upon which the property was to be conveyed to GSA was not known and based upon 
MPCA’s belief that sufficient time was available to meet its cleanup goals.  
In early February 1994, Sverdrup said the STS system was operating as intended, but 
appeared to be a slow means of removing contamination.  At a meeting held March 25, 1994, 
GME understood MPCA to say the air sparging and soil vapor extraction system would have 
remediated the site if it had been left in place.  However, we cannot conclude MPCA meant 
to say the system would have been able to remediate the site by the time BPT was ready to 
begin construction, because this conclusion would be contrary to the view MPCA expressed 
in late February 1994, when it said it was unlikely the STS system could remediate the 
contaminated soil before construction activities began in June 1994, and contrary to MPCA’s 
statement that the STS system most likely would have been successful had there been no time 
constraints.  In early June 1994, stockpiled contaminated soil, which had been receiving 
treatment using STS’s remediation system since 1993 was still contaminated.  Although the 
record does not demonstrate there was anything deficient about STS’s system, the system was 
designed without STS having full knowledge of the conditions at the site and without STS 
knowing its system would have to complete its work within a short period of time.  
The evidence does not establish the STS air sparging and soil vapor extraction system 
could have remediated the soil at the site by the time BPT was ready to begin construction 
in early June 1994. In addition, the STS system would not have remediated the contaminated 
groundwater and included no plan for dealing with this source of contamination.  For these 
reasons, we reject appellants’ argument that the implementation of the subsequent STS 
remediation plan constituted a breach of the amended Development Agreement by GSA. 
Appellants also argue that the remediation plan which STS developed in June, July, 
and August 1994 contained an element which MPCA’s standards did not require.  The plan 
included an underslab vent system as a means of controlling petroleum vapors which could 
accumulate in the courthouse as a result of the volatilization of contaminants left in place at 
the site.  The negotiated price of the amendment to BPT’s contract included $54,000 for this 

 
 
    
 
 
    
  
 
 
 
     
 
   
            
 
 
 
   
 
 
 
75 CBCA 385 
system.  Section 13.01 said MCDA agreed to pursue and fund remediation of contamination, 
and said the definition of contamination and the standard of remediation were to be in 
accordance with the rules, regulations, and determinations of MPCA.  Appellants contend 
the underslab vent system was not required in order to remediate the site to MPCA’s 
standards, and also contend the amended Development Agreement required them to pay only 
the costs necessary to remediate the site to such standards.  Appellants conclude GSA 
breached section 13.01 of the amended Development Agreement because the cost of the 
underslab vent system was included in the $2,420,295 deposit which they paid to GSA. 
Appellants’ Brief at 21, 23, 30; Appellants’ Reply Brief at 4.  
Although it was not within MPCA’s authority to require a property owner to construct 
a safe building, it was within MPCA’s authority to survey and monitor structures for the 
presence of petroleum vapors which arose from the volatilization of contaminants.  MPCA’s 
standards allowed for a variety of methods for remediating a contaminated site, and it was 
within MPCA’s authority to decide whether a remediation plan could include leaving 
contaminated soil and water in place at a site.  This decision by MPCA depended in part upon 
whether the property owner intended to construct a building on the site and, if so, whether 
the owner had accounted for the possibility of harmful vapors accumulating below grade. 
The first mention in our record of vapors and the need to account for them when the 
courthouse was constructed is contained in a letter written by MPCA in February 1993. 
MPCA cautioned that if deep basements were to be constructed and if the contaminated clay 
deposit would remain at the site, the building design should take into account the potential 
for migration of petroleum vapors into the basements. In a letter to MCDA dated 
February 28, 1994, in a section which addressed MPCA’s requirements, MPCA said 
discussions with BPT could also include the necessity of having to mitigate the accumulation 
of organic vapors in the building. 
On August 11, 1994, MPCA said it had not reviewed the sections of the STS 
remediation plan which addressed underslab venting because MPCA said it had no authority 
to regulate this area. However, MPCA also said that, as with the development of any 
contaminated property, special consideration should be taken in the design of the building 
in order not to allow organic vapors to migrate and accumulate inside the building.  On 
September 22, 1994, MPCA notified GSA that because contamination could still be present, 
development plans ought to consider the potential for vapors to enter structures. 
In discussing what needed to be done to remediate the environmental conditions at the 
site, MPCA consistently associated the idea of leaving contaminated material in place with 
the need to control the accumulation of vapors inside the new structure.  STS, a firm with a 
great deal of expertise in dealing with petroleum contamination, considered the underslab 

 
 
   
 
           
 
 
 
 
  
  
 
 
  
  
          
 
  
  
   
      
  
76 CBCA 385 
vent system to be a reasonable and proper element of its site remediation plan because the 
system was needed to protect the courthouse from the accumulation of vapors. 
Appellants have not established that the underslab vent system was not required in 
order to remediate the site to MPCA’s standards.  Based upon the evidence contained in the 
record, we conclude MPCA’s standards allowed leaving contaminated soil and groundwater 
in place at a construction site, so long as MPCA decided the volatilization of the 
contaminants left in place were not going to pose a hazard in the future.  The STS plan 
alleviated this hazard by incorporating the underslab vent system. The costs of the underslab 
vent system, including design, construction, overhead and profit costs, delay costs, and 
associated management and inspection costs, were the direct result of the selection of a 
remediation effort which allowed contaminated material to remain at the site.  If the 
contaminated soil and groundwater had been removed, no underslab vent system would have 
been needed. Appellants insisted upon a remediation effort which allowed contaminated 
material to remain, however, because they believed it would be less costly.  As a result, the 
STS plan included an underslab vent system in order to ensure the safety of the occupants 
of the building and minimize the risk of future potential liability.  The amended Development 
Agreement requires appellants to pay for such costs.  For this reason, we reject appellants’ 
argument that including the cost of the underslab vent system in the deposit which they paid 
to GSA constituted a breach of the amended Development Agreement by GSA. 
Conclusion 
When GSA, the City, and MCDA entered into the Development Agreement, 
appellants agreed to pay the cost of remediating all identified environmental conditions at the 
site and they engaged STS to develop a remediation system.  The cost of the STS system 
would have been minimal and would have been reimbursed from the Petrofund.  When STS 
developed its system, it did not know the full extent of the contamination at the site, did not 
know its system would be in place for only a few months, did not know it would not be able 
to remove contaminated groundwater, and did not know the groundwater was recharging. 
MPCA said it approved the STS design based upon MPCA’s understanding that the date 
upon which the property was to be conveyed to GSA was not known and sufficient time 
would be available to meet MPCA’s cleanup goals.  
When it became clear the STS system was not going to be able to remediate the site 
within the time available, the parties began discussing an amendment to the Development 
Agreement.  GSA made clear that neither it nor its design/build contractor would pay for any 
additional costs incurred because of the conditions at the site.  MCDA acknowledged that 
developing a remediation system after award of the design/build contract would be a change 
to the contract, and said it would pay for added costs caused by the change.  

  
 
 
    
 
          
 
  
   
   
    
 
  
  
 
   
  
   
  
          
     
    
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Consistent with the discussions which led up to the amended Development 
Agreement, the amended agreement made appellants liable for delay costs and management 
costs as well as remediation costs.  Section 13.04 said GSA would issue a modification to the 
design/build contract to effect the appropriate remediation efforts.  MCDA acknowledged 
responsibility for and agreed to pay the cost of the modification, including but not limited to 
design, construction, overhead and profit costs, delay costs, and all associated management 
and inspection costs, to GSA. 
After the parties amended the Development Agreement, MPCA told appellants the 
payments they received from the Petrofund were likely to be reduced because the 
reinstallation of the STS system after demolition was not likely to be effective.  MPCA 
believed the bulk excavation which was going to occur at the site would achieve the 
remediation objective, although Petrofund reimbursement would not be available for the 
excavation of more than 400 cubic yards of contaminated soil.  
GME understood from 
MPCA that the Petrofund would not reimburse any more costs incurred in order to remediate 
conditions at the site. 
After appellants realized the cost of BPT’s remediation efforts might be greater than 
they anticipated and would not be reimbursed by the Petrofund, they said they would not pay 
for a remediation plan based upon either of BPT’s concepts, and took the position that the 
amended Development Agreement required only the implementation of the least expensive, 
most minimal method of remediation possible. This is not what the amended Development 
Agreement said, however.  When the parties negotiated the amended Development 
Agreement, appellants wanted it to provide that GSA would use its best efforts to cause the 
design/build contractor to implement the least costly remediation design, but GSA would not 
agree to this language.  The amended Development Agreement allowed isolating the site, and 
as appellants knew, the design/build contract did not impose any constraints upon the 
design/build contractor’s excavation or design and the entire site was supposed to be 
available for development.  The amended Development Agreement said appellants could not 
compel GSA to have the design/build contractor alter the awarded design or the schedule in 
order to achieve a less costly remediation effort.  
GSA understood that in order to achieve an economical solution to the contamination 
problem, it needed to take into account the overall project and consider the costs of delay and 
the costs of GSA’s management and supervision as well as the cost of remediation.  GSA, 
BPT, and Turner clearly understood that time was money, and they repeatedly expressed their 
concerns about delay. BPT and Turner considered whether they could accelerate their work 
and work extended hours in order to prevent a delay from occurring and regain the schedule. 

 
 
 
 
 
 
 
    
 
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78 CBCA 385 
Appellants were concerned about the cost of implementing the remediation plan. 
They refused to pay for either of BPT’s alternative concepts.  They did not move quickly to 
resolve the indemnification issue.  They suggested piecemeal approaches to implementing 
a remediation plan and to moving the remediation work forward.  They balked at paying the 
full amount required by section 13.08 of the amended Development Agreement, knowing 
their contribution was needed in order for the project to move ahead.  All the while, BPT’s 
progress was delayed and delay costs mounted.  
GSA fulfilled its responsibility to contain the cost of remediating the site when it 
negotiated a price with BPT which did not include any more than was necessary to pay for 
the costs of remediation, including the costs of a ninety-day extension to the construction 
schedule caused by the delay to the completion of the project.  As for the length of the delay, 
there is no doubt it was at least ninety days.  The ninety-day extension to BPT’s performance 
period is consistent with the delay estimates prepared before price negotiations occurred and 
with the analysis of the scheduling expert who provided his opinion regarding the delay. 
GSA never agreed to accept responsibility for paying the cost of remediating the 
conditions at the site.  In the Development Agreement and the amended Development 
Agreement, appellants agreed they would bear these costs.  When appellants deposited 
$2,420,295 with GSA, they did no more than they had agreed to do.  They are not entitled 
to the return of this deposit.  
Decision 
The appeal is DENIED . 
MARTHA H. DeGRAFF 
Board Judge 
We concur: 
ANTHONY S. BORWICK ALLAN H. GOODMAN 
Board Judge Board Judge