(Opinion issued on June 18, 2013, without redactions or protective legends)
GRANTED IN PART: May 24, 2013
CBCA 1559
FLUOR INTERCONTINENTAL, INC.,
d/b/a J.A. JONES INTERNATIONAL,
Appellant,
v.
DEPARTMENT OF STATE,
Respondent.
William A. Roberts, III, Daniel P. Graham, W. Barron A. Avery, Richard B. O’Keefe,
Jr., Christopher M. Mills, W. Barron A. Avery, and Tara L. Ward of Wiley Rein LLP,
Washington, DC; and James A. Hughes, Jr. of Fluor Government Group, Arlington, VA,
counsel for Appellant.
John C. Sawyer and Thomas D. Dinackus, Office of the Legal Adviser, Buildings and
Acquisitions, Department of State, Rosslyn, VA; and Erin M. Kriynovich, Sarah G.
Lounsberry, Kelly A. Yankowski, Philip Gennarelli, Alexandra Wilson, and Jenna Lynn Ellis
of IE Discovery, Inc., Arlington, VA, counsel for Respondent.
Before Board Judges DANIELS (Chairman), VERGILIO, and DRUMMOND.
VERGILIO, Board Judge.
On April 14, 2009, the Board received a notice of appeal from Fluor Intercontinental,
Inc., doing business as J.A. Jones International (JAJI) (contractor), concerning its firm, fixed-
price contract with the Department of State to design and construct a new embassy compound
in Port-au-Prince, Haiti.  The contractor seeks $38,026,410, plus interest, under theories of
differing site condition (asserting that subsoil at the site was collapsible and represents a type
I and type II differing site condition), failure to disclose superior knowledge (concerning the


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agency’s knowledge regarding the conditions in Port-au-Prince, specifically, and Haiti,
generally), breach of the duty of good faith and fair dealing (arising from the agency’s failure
to acknowledge that the changed security environment constituted a changed condition, and
direction that the contractor return to Haiti and continue performance under the conditions),
and constructive acceleration (claiming that excusable delays and changed conditions arose
from the deteriorated security conditions, which the agency initially denied, and ultimately
recognized in an untimely manner only days before the contract was to be completed, thereby
requiring the contractor to expend resources to accelerate its performance).
This opinion focuses upon the facts material to the resolution of the various aspects
of the claim, paring down the extensive evidentiary record (of exhibits and hearing
transcripts), detailed position papers, and pre-hearing and post-hearing briefs to what is
essential to understand the context of the dispute and resolve it.  Through their submissions,
the parties have brought order to the materials.  References to the record are not all-inclusive,
but highlight the support for the conclusions.  The transcript is rarely referenced, only
because documents often summarize information, while testimony offers embellishments,
context, and repetition, supporting but not altering the material findings.
 Contrary to the agency’s suggestions, the firm, fixed-price design-build contract does
not fully shield the agency from providing additional time and/or money under the terms and
conditions of the contract that includes Excusable Delay, Changes, and Differing Site
Conditions clauses, among others.  That is, although the contract was established with a firm,
fixed-price, with specific dates for completion of various tasks, neither the dollars nor dates
are immutably fixed.  The specific claims of the contractor must be addressed and resolved.
While the opinion is written with findings and discussions occurring sequentially by
topic (part 1 involves the contract, conditions in Haiti, and interpretation; part 2, the
subsurface soil; part 3, performance, excusable delay, and acceleration), the Board’s decision
on each aspect of the claim is readily summarized.  The Board finds that the record does not
establish that the subsoil was collapsible.  Accordingly, there was no differing site condition. 
The unsettled security situation was well recognized, with the possibility of security and
stability deteriorating over the performance period.  The agency did not withhold information
or mislead the contractor.  The record does not support the superior knowledge basis of the
claim.  There was no breach of the duty of good faith and fair dealing, because the contract
places on the contractor the risks of performing during periods with a deteriorated security
environment.  The security conditions did not constitute a change to the contract.  However,
the contractor has established that excusable delays occurred arising from Government acts--
the ordered departure at the embassy and related urging of American citizens to depart.  The
contractor has not established entitlement to more days for performance than the agency

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granted; however, because the agency failed to timely extend the performance period, the
contractor reasonably took actions to accelerate its performance as it attempted to complete
performance within a shorter period than the contract afforded.  The record supports recovery
of $1,253,710, plus interest pursuant to statute calculated from July 28, 2008.  Accordingly,
the Board grants in part the appeal.
PART 1: THE CONTRACT & CONDITIONS IN HAITI
Findings of Fact
The contract
1. The agency issued a solicitation, on August 30, 2004, to obtain, through a
negotiated procurement, design and construction services for a new embassy compound
(NEC) in Port-au-Prince, Haiti, covering approximately ten acres.  Exhibits 1 at 1, 10 at 624,
775 (¶ C.1) (all exhibits are in the appeal file).  The compound would not be in downtown
Port-au-Prince; it would be in what was viewed as a safer area than the existing embassy. 
Exhibits 956, 21665.
2. On November 9-10, 2004, the agency held a pre-proposal conference in Haiti
with potential offerors.  Exhibit 6 at 176-78.  Following initial proposals, the contractor
submitted its final proposal revision on December 21, 2004.  Exhibits 7, 8.  There followed
discussions, and the submission of final price proposals on January 7, 2005.  Exhibit 9. 
Explaining its understanding of the importance of this project, the contractor stated that its
entire resources were available, if necessary, to ensure that the project is completed on time
and on budget.  Exhibit 7 at 310.  This was repeated, with the contractor also recognizing,
in its proposal: the objective to provide a secure and safe environment for personnel,
materials, and equipment; its teaming partner’s local construction presence and
understanding of Haitian culture and subcontractor community; and the project’s unique
aspects due to the location and political climate, including security, among various factors. 
Exhibit 7 at 319-24.
3. The parties entered into a firm, fixed-price, design-build contract on
January 14, 2005, with a total price of $74,408,634.  Exhibit 10.  The performance period
was 851 days from issuance of the limited notice to proceed, Exhibit 10 at 652 (¶ F.1),
thereby requiring substantial completion on July 3, 2007.  Exhibit 21192 at 372-73.  The
agency extended the performance period, adding 210 calendar days (with various of these
days added for excusable delays) resulting in a substantial completion date of January 29,
2008.  Exhibit 25908.  Substantial completion occurred on March 31, 2008.  Exhibit 25563.

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4. Consistent with the terms of the solicitation, the contract contains particular
provisions.  The contract contains a War Risks clause, dealing with loss or damage to and/or
destruction of work or materials, as well as a Disputes (JUL 2002) clause, 48 CFR 52.233-1,
and the Disputes, Alternate I (DEC 1991) clause, 48 CFR 52.233-1.  Exhibit 1 at 63 (¶ H.20),
104 (¶¶ I.153, I.154).  Under the Liquidated Damages--Construction (SEPT 2000) clause, 48
CFR 52.211-12, the contractor was obligated to pay the Government $11,463 for each
calendar day of delay until the work was completed or accepted.  Exhibit 1 at 30 (¶ F.3).  A
Type of Contract clause states: “No additional sums will be payable on account of any
escalation in the cost of materials, equipment or labor, or because of the contractor’s failure
to properly estimate or accurately predict the cost or difficulty of achieving the results
required by this contract.”  Also: “Changes in the contract price or time to complete will be
made only due to changes made by the Government in the work to be performed, or by delays
caused by the Government.”  Exhibit 1 at 7 (¶ B.3).
5. Despite this stated limited nature of changes (only due to changes made by the
Government or Government-caused delays), the contract contains Changes--Fixed Price
(AUG 1987) and Alternate II (APR 1984) and Changes and Changed Conditions ((APR
1984) clauses, 48 CFR 52.243-1, 52.243-5, Exhibit 1 at 99 (¶¶ I.132-134); a Differing Site
Conditions (APR 1984) clause, 48 CFR 52.236-2, Exhibit I at 93 (¶ I.79); and an Excusable
Delays clause:
F.9.1 The Contractor will be allowed time, not money, for excusable delays
as defined in FAR [Federal Acquisition Regulation] 52.249-10, Default (see
Section/Paragraph I.162).  Examples of such cases include (1) acts of God or
of the public enemy, (2) acts of the United States Government in either its
sovereign or contractual capacity, (3) acts of the government of the host
country in its sovereign capacity, . . . and (12) unusually severe weather.
F.9.2 In each instance, the failure to perform must be beyond the control and
without the fault or negligence of the Contractor, and the failure to perform
furthermore (1) must be one that the Contractor could not have reasonably
anticipated and taken adequate measures to protect against, (2) cannot be
overcome by reasonable efforts to reschedule the work, and (3) directly and
materially affects the date of final completion of the project.
Exhibit 1 at 31 (¶ F.9).  The referenced Default (APR 1984) clause, 48 CFR 52.249-10
(found at I.163, not I.162), identifies delay in completing the work arising from
unforeseeable causes beyond the control and without the fault or negligence of the contractor. 
It also contains a similar list of examples, with the addition of delays of subcontractors or

CBCA 1559 5
suppliers at any tier arising from unforeseeable causes beyond the control and without the
fault or negligence of both the contractor and the subcontractors or suppliers.  48 CFR
52.249-10 (2004); Exhibit 1 at 109 (¶ I.163).
6. The new embassy compound contains several structures.  Of relevance here are
the one-story structures and the perimeter fence.  The contractor maintains that the soil
beneath the footprint of these structures represents a differing site condition, in that the soil
was unexpectedly collapsible, deviating from what was anticipated by the details in the
solicitation (and its accompanying preliminary geotechnical report) and by known soils in
Haiti.
Conditions in Haiti
7. The contract contains an Information Concerning the Host Country clause:
E.6.1 Information Concerning Host Country.  The offeror shall confirm and
verify all information and shall not rely on data provided by the Government
concerning the host country, such as climatological data at the site, local laws
and customs, currency restrictions, taxes, or the availability of local labor,
materials and transportation, etc.  It is the responsibility of the Offeror to
determine and gather the information necessary to perform this contract.
E.6.2 Information Obtained by Offeror.  Before submitting a proposal, each
Offeror shall, at its own expense, make or obtain any additional examinations,
investigations, explorations, tests and studies, and obtain any additional
information which the Offeror requires.
Exhibit 1 at 15-16 (¶ E.6).  Additionally, a Review of Documents and Local Conditions
clause specifies that the contractor is responsible for ascertaining the availability of all
materials and equipment necessary to produce the work required by the proposed contract
documents, of sufficient skilled labor to perform the work, and of the availability of
transportation to the site.  Exhibit 1 at 64-65 (¶ H.22).
8. In 2004 Haiti had experienced significant turmoil, particularly surrounding and
following the departure in February of its president, Jean-Bertrand Aristide; American
citizens were evacuated and the United States embassy placed on ordered departure status. 
Ordered departure required dependents and certain embassy employees to depart the country. 
In contrast, authorized departure status meant that certain embassy employees and
dependents could, but were not required to, depart.  Exhibits 989 at 19, 18128.  The

CBCA 1559 6
Department of State, Bureau of Consular Affairs issued a Travel Warning (used to
communicate information to American citizens) in February 2004, “to inform American
citizens that the security situation in Haiti has deteriorated significantly and that safe travel
out of the country by regularly scheduled commercial means is not possible at this time.” 
Exhibit 989.  In March 2004, a Travel Warning noted that, although the United States
embassy in Haiti had reopened, the situation in Haiti remained dangerous and unpredictable,
warned American citizens to defer travel to Haiti until the situation stabilized, and advised
those citizens remaining in Haiti to take precautions to avoid uncertain security situations in
public areas.  Exhibit 990.  These and other Travel Warnings were publicly available to the
contractor pre-and post-award.
9. A Travel Warning issued in May 2004 indicated that the security situation in
Haiti remained unpredictable and potentially dangerous, advising United States citizens to
defer travel in Haiti.  The warning noted that the ordered departure of dependents and non-
emergency personnel of the embassy remained in effect.  The issuance warned that travel into
and around Haiti could still involve serious risks, with the potential for looting, roadblocks
set by armed gangs, and violent crime.  “A number of kidnappings for ransom have been
reported during recent weeks.  In some cases U.S. citizens were victims.”  “[E]ven within
Port-au-Prince, travel can be hazardous.  The embassy’s ability to provide emergency
services to American Citizens anywhere in Haiti and particularly outside of Port-Au-Prince
is extremely limited.”  Exhibit 991.
10. In June 2004, a United Nations Stabilization Mission in Haiti (MINUSTAH)
assumed responsibilities in Haiti; with various responsibilities, it was to provide assistance
in restoring and maintaining safety and public order and facilitating the peaceful election of
a new government.  Exhibit 1062.
11. A Travel Warning issued in July 2004, specified that although the ordered
departure of embassy personnel and dependents had been lifted, the security situation in Haiti
remained unpredictable and potentially dangerous.  The warning encouraged United States
citizens to defer non-emergency travel to Haiti.  Although many areas had calmed
considerably since earlier in the year, “the Department warns U.S. citizens that travel in Haiti
still involves serious risks.  Visitors and residents must remain vigilant due to the absence
of an effective local police force in Haiti; the potential for looting; the presence of
intermittent roadblocks set by armed gangs or by the police which may disrupt travel; and the
possibility of random violent crime, including kidnapping.”  The deployment of MINUSTAH
is noted, with the cautionary detail that the international presence throughout Haiti will
remain limited for some time to come.  Exhibit 992.

CBCA 1559 7
12. An early October 2004 Travel Warning provided similar information.  It also
repeated information from July, warning that travel can be hazardous within Port-au-Prince,
with some areas off-limits to embassy staff, noting an embassy-imposed night-time curfew
on staff members and limitations on travel outside Port-au-Prince, and specifying that
businesses of United States companies continued to operate in Haiti, but take special
precautions to protect facilities and personnel.  Exhibit 993.
13. On October 14, 2004, the authorized departure from Port-au-Prince of eligible
family members and non-emergency employees at the embassy was approved for a period
not to exceed thirty days; within that period the Chief of Mission was to re-evaluate
conditions and request a continuation or termination of evacuation status.  Exhibit 16061.
14. A Travel Warning dated October 14, 2004, reflected the worsening of
conditions and the authorized departure issuance at the embassy.  The warning urged United
States citizens to avoid travel to Haiti due to the volatile security situation.  Additionally,
“U.S. citizens in Haiti are urged to consider departing until the situation is stabilized as travel
in Haiti still involves serious risks.”  Further,
Visitors and residents must remain vigilant due to the absence of an effective
police force in Haiti; the potential for looting; the presence of intermittent
roadblocks set by armed gangs or by the police; and the possibility of random
violent crime, including kidnapping, car-jacking, and assault.  There has been
a noticeable escalation in criminal and gang activity since September 30.
Exhibit 994.  The warning repeated the cautions of earlier issuances, regarding the hazards
of travel, curfews, and continuing operations of United States businesses.  Exhibit 994.
15. Each Travel Warning either (1) noted that as the Department of State continued
to develop information on potentially dangerous demonstrations and political unrest in Haiti,
it would share that information through its Consular Information Program documents, and
identified an internet address and telephone numbers to obtain up-to-date information on
security conditions, or (2) indicated that travelers should consult the Consular Information
Sheet for Haiti, again with an internet address and telephone numbers to obtain up-to-date
information on security conditions.  Exhibits 989-94.
16. Consular Information Sheets dated June 4, December 1, and December 23,
2004, and January 10, 2005, began by describing Haiti as one of the least developed and least
stable countries in the Western Hemisphere.  Regarding safety and security, the sheets stated
that United States citizens should avoid travel to Haiti at that time.  The sheets summarized

CBCA 1559 8
much of what was found in the Travel Warnings.  As to crime, the sheets stated that there
“are no ‘safe areas’ in Haiti.  Crime, already a problem, has mushroomed in recent years.” 
Further, “Reports of death threats, murders, drug-related shootouts, kidnappings, armed
robberies, break-ins or carjackings occur almost daily.  These crimes are primarily Haitian
against Haitian, though some foreigners and U.S. citizens of Haitian origin have been
victimized.”  “Neighborhoods in Port-au-Prince once considered relatively safe, such as the
Delmas road area and Petionville, have been the scenes of an increasing number of violent
crimes.”  Exhibits 981-84.  The December 1 sheet specified that “nine kidnappings involving
U.S. citizens have already been reported during 2004.”  Exhibit 982 at 385.  The Consular
Information Sheet dated December 23, 2004, repeated this information and stated: “Violent
incidents take place without warning including attacks against government facilities and
random shootings.  While U.N. personnel from several countries have been in Haiti since the
change in government, there are relatively few of them and their mission in Haiti does not
include guaranteeing the safety of visitors.”  Exhibit 983 at 715.  The January 10, 2005,
Consular Information Sheet was not more optimistic and did not suggest that the reported-on
matters had improved since the last information sheet.  Exhibit 984.
17. On November 8, 2004, an extension of the authorized departure status from
Port-au-Prince for an additional thirty days was requested with the justification:
Although the security situation in Port-au-Prince is manageable, the levels of
lawlessness and potential for violence in Port-au-Prince remain high.  While
MINUSTAH forces continue to build up their capability to counter that threat,
the process has been slow going with some deployments delayed. 
MINUSTAH capability will continue to build in the coming weeks. . . . Post
would like to hold off on any recommendation to lift authorized departure until
we have seen additional forces made operational.  It appears that capability
will largely be complete by the end of the month.
Exhibit 16085.  This justification was not available to the offerors.
18. Within this context, in early November 2004, with the embassy on authorized
departure, and the day after the requested extension of that status, the agency held a pre-
proposal meeting with potential offerors, attended by the contractor, among others.  During
this meeting, the United States Ambassador to the Republic of Haiti and the Regional
Security Officer for Haiti each made remarks.  These remarks were not made part of the
solicitation or contract.  Exhibits 1, 10.  As reflected in notes taken by attendees, the
Regional Security Officer seemingly made the comment that the security situation in Haiti
had improved with the arrival of MINUSTAH.  Exhibits 5 at 165-66, 6 at 176 (¶ 1.1).  In

CBCA 1559 9
contrast, notes of the meeting indicate that the Ambassador commented that MINUSTAH
forces were trying to assert control and the Regional Security Officer noted the country was
in a period of increased unrest and that problems would continue through the election process
in September and November 2005.  Exhibit 5 at 165.  Further, notes by another individual
attribute to the Regional Security Officer comments that September and October had been
a period of increased unrest, that UN peacekeepers and new police were trying to establish
government control in areas not under government control before the departure of President
Aristide, and that he thought security was getting better as more UN troops arrive, as they get
better organized, and as the police are better trained.  Exhibit 20164 at 162-63.  Specific
questions were not posed by the contractor regarding the security situation.  Transcript (May
15) at 274-75.  No assurances as to present or future security conditions in Haiti are found
in any solicitation amendment or in the contract.
19. During proposal preparation, the contractor was aware of an evacuation
monitor, dated November 10, 2004, issued by an independent security support service firm
utilized by the contractor; the publication categorized Haiti at alert state two (security
situation or country instability represents a risk to staff, their families, and physical assets),
with a stated reason for the categorization:
Despite temporary stabilization of security situation due to the interim
government and the presence of foreign troops, the process of restoring law
and order, staging legitimate elections and fomenting sustainable political
stability will be problematic and lengthy.
Exhibit 6144 at 783-84.
20. On November 22, 2004, the contractor sought and received a specific response
from the independent security firm concerning the conditions in Haiti, as the contractor was
preparing its proposal.  The firm’s response stated, in pertinent part:
The security situation remains problematic and security risks are HIGH. 
However, the situation has stabilised following the arrival of foreign
peacekeeping forces and rebel forces have taken a more conciliatory stance. 
Companies can now consider returning foreign staff and personnel can
undertake essential business travel.
Despite the recent stabilisation, the situation remains fragile and business
personnel and travellers alike should remain vigilant.  All personnel arriving
in the country should be met by a trusted contact.  Economic difficulties have

CBCA 1559 10
also produced a widespread increase in criminal activity, particularly kidnap-
for-ransom.  Continued economic deterioration will lead to an increased
incidence of crime, especially kidnapping and armed robbery.  The rise in rates
of armed crime, murder and carjacking remains a concern.  Public security has
dropped dramatically, particularly in Port-au-Prince.  Lower-income areas of
Port-au-Prince . . . are particularly unsafe.  However, all areas, including the
affluent suburb of Petionville, suffer from random crime.
The police force remains a largely ineffective force and foreign troops are
principally responsible for protecting key infrastructure and diplomatic assets. 
. . . Demonstrations and clashes between pro-Aristide and opposition groups
will continue.
The expiry of a deadline for rebel disarmament further increases the
lik[e]lihood that unrest will persist.  Personnel should be aware that the
situation could deteriorate rapidly.
On 13 Nov 2004 it was announced that Mr Aristide would be issued with a
warrant for his arrest for financing a wave of unrest in Port-au-Prince.  Any
move against Mr Aristide will anger his supporters and make the peace process
in Haiti even harder.
Exhibit 6145.
21. While preparing its proposal, the contractor was aware of various warnings
concerning Haiti, as it made its own assessments and reached its own conclusions.  As one
contractor employee, who was involved in proposal preparation but did not attend the pre-
proposal conference, testified, “By the November prebid meeting, . . . we have the
Department of State inviting U.S. citizens to come down for a prebid.  Obviously, reflective
of the stabilization that had been achieved as a result of the peacekeeping forces.” Transcript
(May 15) at 62, 63 (“obviously MINUSTAH was ramping up very rapidly, and the effect was
having a stabilizing effect”), 239.  The individual also concluded that the Ambassador and
Regional Security Officer were providing updates and highly customized assessments,
although neither made any statement to such an effect.  Transcript (May 15) at 258-61.  The
contractor opted to review, or not, various available information, and to give that information
the weight it deemed appropriate.  The contractor focuses on the pre-proposal conference
statement that MINUSTAH was a stabilizing force; however, a similar statement was
contained in the report of the independent firm obtained by the contractor, with the notice
that there was a widespread increase in criminal activity and that the situation could

CBCA 1559 11
deteriorate rapidly.  Finding 20.  These statements are found in the context of the security
situation remaining problematic and security risks high.
22. The authorized departure for Port-au-Prince, Haiti, for both eligible family
members and non-emergency employees of the embassy, in effect during proposal
preparation and at the time of award and thereafter, was terminated on March 11, 2005. 
Exhibit 16186.
23. Based upon the record, and as highlighted by these findings, the Board
concludes that during proposal preparation through the time of award, in Haiti generally, and
in Port-au-Prince and its environs, there existed significant concerns for safety over the
performance period.  The instability, with the recognized potential for demonstrations,
violence, kidnappings, and other incidents, posed particular threats whose occurrence could
not always be predicted in terms of time and place.  These conditions could affect local
workers (and their families), who would be individuals known to be employed with earnings,
and who had to get to and from work; local businesses supporting the contractor, which
would be subject to the same local conditions in getting materials and equipment to the
jobsite; foreign businesses supporting the contractor which also would have to get people
and/or products to the jobsite; and foreign hires to assist in the project.  Although the NEC
jobsite was in a relatively safe environment, issuances by the agency and the independent
security firm used by the contractor noted concerns that could affect performance.  A volatile
security situation existed; businesses were being advised to take precautions at the same time
that travel to Haiti was being discouraged.  The agency did not promise a safe environment
for the contractor.
24. Pre-award and post-award, the agency had significantly more knowledge about
Haiti than is referenced in this opinion or is contained in the record.  Some information was
revealed contemporaneously in warnings and issuances, and in various documents and
conversations.  Some information is in the record through testimony.  Some information was
and remains classified.  The solicitation and contract do not provide that the contractor will
have access to all of the information and views that may lead to agency issuances or
determinations.  The solicitation and contract specify that it is the contractor’s responsibility
to determine and gather the information necessary to perform this contract.  Finding 7.

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Discussion
Contract Interpretation
This firm, fixed-price, design-build contract includes a Type of Contract clause stating
that changes in the contract price or time to complete will be made only due to changes made
by the Government in the work to be performed, or by delays caused by the Government. 
Finding 4.  The clause allocates substantial risks to the contractor.  Spearin v. United States,
248 U.S. 132, 136 (1918) (“Where one agrees to do, for a fixed sum, a thing possible to be
performed, he will not be excused or become entitled to additional compensation, because
unforeseen difficulties are encountered.”); McNamara Construction, Ltd. v. United States,
509 F.2d 1166, 1169-70 (Ct. Cl. 1975) (“We have consistently held that the contractor in a
fixed-price contract assumes the risk of unexpected costs.  In firm fixed-price contracts, risks
fall on the contractor, and the contractor takes account of this through his prices.” (citations
omitted)).
Contrary to the agency’s suggestions, the firm, fixed-price contract does not absolutely
shield the agency from being obligated to provide additional time and/or money under the
terms and conditions of this contract.  This is so because the contract includes an Excusable
Delays clause and a Differing Site Conditions clause, among others.  The excusable delays
identified in the clause are not all Government-caused.  Similarly, a differing site condition
does not involve a Government change to the contract.  Thus, although the contract was
established with a firm, fixed-price and a defined completion date, neither the dollars nor the
date is immutably fixed; the inclusion of these specific clauses recognizes that a situation
may merit revising the completion date and/or contract price for performance.  Interestingly,
the agency acknowledged the effects of these clauses in its responses to the requests for
adjustments: the agency treated each clause as permitting a modification with no absolute bar
to the recovery sought; however, because these facts constitute parol evidence, they are not
material or determinative.  The contractor seeks relief under the express contract clauses for
what it contends was a differing site condition (the existence of collapsible soils) and for
matters relating to the security environment actually encountered during performance.
Haiti posed various challenges to the contractor, in terms of safety and security, and
their impact on performing, hiring and retaining a satisfactory workforce, and acquiring and
transporting equipment and materials throughout the performance period.  The contract
places upon the contractor the burden of obtaining information regarding Haiti and
ascertaining the availability of labor, materials, equipment, and transportation.  Finding 7. 
The contract establishes no expected conditions in Haiti or thresholds, which if exceeded,

CBCA 1559 13
would entitle the contractor to additional payment, and identifies no particular dollars to be
earmarked for security purposes.
The unpredictable nature of the situation in Haiti was known at the time of
contracting.  The embassy was on authorized departure during proposal preparation and at
the time of award.  Agency issuances described Haiti as one of the least developed and least
stable countries in the Western Hemisphere.  Regarding safety and security, the issuances
stated that United States citizens should avoid travel to Haiti at that time, noted that there
were no safe areas in Haiti, and advised that crime, already a problem, had mushroomed in
recent years.  Further, the issuances specified that death threats, murders, drug-related
shootouts, kidnappings, armed robberies, break-ins, or car jackings occurred almost daily,
with areas once considered relatively safe becoming the scenes of an increasing number of
violent crimes.  As of December 1, nine kidnappings involving American citizens had been
reported during 2004.  The contractor was also aware of information found in publications
of an independent security firm which categorized Haiti at alert state two (security situation
or country instability represents a risk to staff, their families, and physical assets).  The
publication attributed temporary stabilization to the presence of foreign troops, in part.  The
same firm reported, after the pre-proposal conference, that the security situation remained
problematic with high security risks, but noted that the situation had stabilized following the
arrival of foreign peacekeeping forces and that rebel forces had taken a more conciliatory
stance.  This informed readers that economic difficulties had produced a widespread increase
in criminal activity, particularly kidnap-for-ransom, and indicated that continued economic
deterioration would lead to an increased incidence of crime, especially kidnapping and armed
robbery, while the rise in rates of armed crime, murder, and car jacking remained a concern. 
Public security dropped dramatically, particularly in Port-au-Prince; lower-income areas of
Port-au-Prince were noted as being particularly unsafe, while all areas, including the affluent
suburb of Petionville, suffered from random crime.  The issuance specified that personnel
should be aware that the situation could deteriorate rapidly.
The contractor maintains that it sought and obtained assurances from the agency
regarding the conditions in Haiti at the pre-proposal conference.  The contractor did not
actively seek any such information; it did not pose questions.  Rather, the contractor relied
upon statements made by the United States Ambassador to Haiti and by the Regional Security
Officer.  The Board concludes that the statements were not assurances.  Most significantly,
the statements are not incorporated into the solicitation or contract.  Finding 18.  Moreover,
in the context of the overall statements, which contain references to MINUSTAH trying to
establish (not having established) control and the past two months having been a period of
increased unrest, with problems to continue through the elections, the comments cannot be
viewed as assurances of present or future conditions.  Rather, the statements expressed views

CBCA 1559 14
of particular individuals at a moment in time.  Neither the Ambassador not the Regional
Security Officer made commitments regarding the conditions that would occur during the
performance period.1
Superior Knowledge
The contractor contends that the agency failed to disclose superior knowledge relating
to the security conditions in Haiti.  To prevail under the superior knowledge doctrine requires
specific evidence that the contractor:
(1) undertook to perform without vital knowledge of a fact that affects
performance costs or direction, (2) the government was aware that the
contractor had no knowledge of and had no reason to obtain such information,
(3) any contract specification supplied misled the contractor, or did not put it
on notice to inquire, and (4) the government failed to provide the relevant
information.
AT&T Communications, Inc. v. Perry, 296 F.3d 1307, 1312 (Fed. Cir. 2002) (quoting GAF
Corp. v. United States, 932 F.2d 947, 949 (Fed. Cir. 1991)).  On each of these elements, the
contractor fails; the Board need not go into details of classified information, even as it may
be assumed that the agency had greater knowledge than the contractor of the up-dated
circumstances in Haiti.
The contractor contends that it was not privy to information known to the agency
about and relating to security threats in Haiti during the pre-award period.  Undoubtedly, the
agency had much information that it did not share with the contractor prior to and after
award.  However, the solicitation put the contractor on notice that the contractor was
responsible for gathering its own information relating to Haiti and performing under the
actual conditions.  Authorized departure procedures in effect at the embassy.  Through Travel
Warnings and Consular Information Sheets, the agency put offerors on notice of a wide
1 During the pre-proposal conference a statement was made, again not
incorporated into the terms and conditions of the contract, that Americans would be treated
as embassy employees should an evacuation occur; that is, that emergency medical coverage
and evacuations would be covered.  Such expressed the policy of the United States.  That
statement is not relevant, because the ordered departure was not an emergency evacuation
within the policy, and emergency medical coverage was not required during the performance
of this contract.

CBCA 1559 15
variety of security concerns.  Additionally, from an independent security firm, the contractor
obtained information that noted a widespread increase in criminal activity, particularly
kidnap-for-ransom, and suggested that continued economic deterioration would lead to an
increased incidence of crime, especially kidnapping and armed robbery.  The information
indicated that a rise in rates of armed crime, murder and car jacking remained a concern,
expressly noted that public security has dropped dramatically, particularly in Port-au-Prince,
with all areas suffering from random crime, explained that the expiry of a deadline for rebel
disarmament further increased the likelihood that unrest would persist, and specified that
personnel should be aware that the situation could deteriorate rapidly.  This information
makes it unnecessary for the Board to itemize other sources of material, including contacts
the contractor had in Haiti, and the media, for reports of daily occurrences and other
conjectures of future conditions.  The contractor knowingly competed and set its pricing
based upon information it garnered, aware that it was not privy to all the agency knew, and
that it had not sought any additional information through questions which could be answered
in a solicitation amendment.  It was evident that the future in Haiti contained many
uncertainties with respect to security and safety; such was a component of the competition
and performance.
No information identified by the contractor as known to the agency but not the
contractor can be deemed vital knowledge considering the backdrop of then-current and
potential security obstacles.  The agency could not be aware of the contractor’s actual
knowledge, particularly when the contractor noted in its proposals its awareness of the
political and security environment, and a partner’s presence and experience in Haiti.  Finding
2.  The agency did not mislead the contractor and expressly put it on notice of its need to
inquire.  With no specific information truly vital, the agency did not fail to provide vital
relevant information.  Thus, the contractor has failed to demonstrate any of the four elements
necessary to prevail under the superior knowledge doctrine.
PART 2: SUBSURFACE SOIL
Findings of Fact
25. The site description provisions of the solicitation and contract do not indicate
specifics of the subsurface conditions; however, the clause notes that the site is covered with
vegetation, without trees, and that formerly the area was used for sugar cane cultivation. 
Exhibit 10 at 775-76 (¶ C.1.3).  Site design requirements relating to geotechnical engineering
specify:

CBCA 1559 16
C.2.2.1.2.1
A preliminary geotechnical report for this project is provided in Section J for
use in developing a proposal for this project.  This geotechnical investigation
was performed primarily for site acquisition purposes and contains general site
development recommendations, generic recommendations for structural
support, as well as subsurface information.  The Contractor’s geotechnical
engineer/consultant shall use the subsurface information (boring logs, field
testing, and laboratory testing) contained in this report to develop preliminary
project specific design recommendations for use in preparing the Contractor’s
proposal.
C.2.2.1.2.2
Following contract award, the Contractor shall develop the actual project
specific field geotechnical exploration program to provide the
recommendations for the geotechnical-related design.  The Contractor is
responsible for all geotechnical related design (foundation engineering, ground
modifications, slope stability of soils, etc.).  The Contractor is responsible for
the assessment of subsurface properties.
Exhibit 10 at 780-81.
26. Further, regarding geotechnical engineering, the solicitation and contract state:
The Contractor shall engage the services of a geotechnical consultant to
perform all necessary geotechnical work for the project. . . . The Contractor
shall identify the type and cost of Foundation System required.  The
Contractor’s proposed Foundation System shall be based solely on the
Contractor[’]s independent analysis and knowledge of the site and subsurface
conditions.  The contractor will provide as a requirement of the Proposal a
detailed description of the proposed Foundation System and a [sic] shall
breakout the cost for the foundation work as a lump sum.
Exhibit 10 at 803-04 (¶ C.5.8).
27. The solicitation and contract recognize that the contractor must obtain the
subsurface information needed for the design of the project, with the contractor’s
geotechnical consultant to submit an exploration and testing program to the agency for

CBCA 1559 17
review as part of the design development submittal.  Exhibit 10 at 813 (¶ C.A.2.1.b).  In
particular, the contractor was to evaluate the conditions of the various soils for stability and
for short-term and long-term effects of various foundation elements and structures.  Exhibit
10 at 813-14 (¶ C.A.2.2.c).
28. The preliminary geotechnical investigation report referenced in the solicitation
(and to be relied upon in proposal preparation) contains information regarding subsurface
conditions, based upon sampling and testing of soils taken at various identified locations
within the compound footprint.  The report includes subsurface soil classifications with
boring logs from twelve locations, liquid and plastic limits, grain size, and standard
penetration test (SPT) data.  The report does not specify void ratios, compressibility, or
collapsibility; no collapse tests were performed for the report.  Exhibit 405 at 462-596.  The
report notes a vegetal soil on the top layer.  Beneath that layer and above a silty sandy gravel
layer (found in each boring) are one or two layers (either of clayey silt and/or silty fine sand
and/or marl) with total depths ranging from 2.0 to 4.5 meters.  Exhibit 405 at 487-90.  The
parties refer to the soil beneath the top layer and above the gravel layer as the upper silt layer. 
The report states in one portion, generally describing the foundation carrying level of the
strata, that the clayey silt layer “is not recommended to receive the foundations because of
its weak mechanical characteristics and its too great heterogeneity.”  Exhibit 405 at 503. 
While that reference to foundations is non-specific (whether applicable to all structures or
only those of greater height than one story), the conclusions and recommendations section
of the report discusses the stratified alluvial soil with lateral and vertical heterogeneity, the
great variation of thickness in the layers from one point to another, and the options for the
variety of structures to be constructed.  The report states regarding one story structures,
“foundations on footings in the first meters of the ground made up primarily of argillaceous
silt could be envisaged, by decreasing the stress of this layer.”  Separately, for fencing, the
report concludes: “When building the perimeter fence, the foundations might be established
in the silty layer located above the sandy silty layer if continuous concrete footings are
chosen to connect the columns.”  Exhibit 405 at 505-06.
29. The contractor utilized an engineering and consulting firm in the proposal
preparation process.  With a date of November 22, 2004, a geotechnical engineer from that
firm provided the contractor with an analysis.  Regarding foundations for the structures here
in question, the analysis states:
Shallow spread footings bearing in the granular fill and designed for allowable
bearing pressure in the range of 3 ksf [kips (thousand pounds of force) per
square foot] would likely be feasible for [the building structures here at issue]. 
The clayey silt zone would not generally need to be removed completely, but

CBCA 1559 18
would require significant preparation and inspection by proofrolling and
stabilizing or undercutting weak or soft zones.
. . . [T]he perimeter wall . . . would also generally have acceptable support
conditions in the granular fill placed over existing site grades with limited
inspection preparation.
Exhibit 13084 at 599-600; Transcript (June 1) at 11-17 (detailing some of the underlying
efforts and analysis leading to the represented conclusions).
30. The contractor priced its proposal in accordance with the recommendations of
the geotechnical engineer so as not to price removing the entirety of the upper silt layer for
the areas here in question.  After award, the contractor utilized the same engineering and
consulting firm and the same geotechnical engineer it had used preaward to investigate the
site and prepare the required geotechnical report.  Based upon field testing and observations,
the geotechnical engineer noted that soil samples slaked when dropped into a jar of water,
seemed to have low apparent density, and had a dry consistency.  Further, he noted vertical
root holes.  He maintains that these are indicators of potentially collapsible soil.  Transcript
(June 1) at 33.  The geotechnical engineer took acceptably undisturbed test pit samples from
the site on March 15 and 16, 2005.  Exhibit 949 at 511-18; Transcript (June 1) at 24-25, 34-
36.  On March 21, 2005, the samples (identified with a specific location and depth of sample)
were received at the associated laboratory.  Various tests were conducted on portions of some
samples.  Exhibit 13091.  Of four samples identified for consolidation testing (to measure
decreases in soil height under particular loads), the geotechnical engineer at some point
initially ordered a collapse test on one sample, TP7 (test pit 7).  Exhibit 13091 at 286-89 (two
undated lab assignment sheets do not specify a collapse test, at 286-87, two other undated lab
assignment sheets identify a collapse test for TP7, at 288-89); Transcript (June 1) at 34.  On
March 23, 2005, the geotechnical engineer informed the contractor that he had samples from
the upper silt layer and noted, regarding the two to four meters of very stiff dry gray fine
sandy silt: “Minor concern that this may be collapsible.”  Exhibit 21270 at 28.  The TP7 and
TP8 samples were not taken from under or adjacent to the footprint of any structure here at
issue.  Exhibit 949 at 478; Transcript (June 1) at 78.
31. The American Society for Testing and Materials (ASTM) International D5333,
Standard Test Method for Measurement of Collapse Potential of Soils, defined collapse as
a “decrease in height of a confined soil following wetting at a constant applied vertical
stress.”  Exhibit 5288 (¶ 3.2.1).  In conducting a collapse test pursuant to this recognized
standard, a sample of the soil (approximately one inch high and two and one-half inches in
diameter) at its natural moisture content is trimmed to fit into a ring and placed in a machine. 

CBCA 1559 19
The height of the material is measured initially, and at timed increments as the material is
subjected to given weight loads.  At a given load, the sample is inundated with water, with
the height measured at timed increments.  A decrease in height attributable to the water
inundation reflects the collapse of the soil, and is categorized based upon the percentage of
collapse.  Under this standard, the test would have involved five loadings, with each stage
lasting one hour (dry loading total 5 hours), then an additional 24 hours for the wet loading,
for a total test time of 29 hours.  Exhibit 5288; Transcripts (June 1) at 42-43, (June 4) at 168. 
The degree of collapsibility of soil is pertinent to designing foundations.  With significant
collapsibility, soil may be removed, with volume replaced, as an economical method of
dealing with collapsible soil in the design phase.  Transcript (June 4) at 18, 87.
32. The TP7 sample was collected at a depth of 1.2 to 1.6 meters.  Exhibit 13091
at 321.  A single consolidation/collapse test was run on a portion of that sample.  The test
began on March 24, 2005; the sample was flooded at a given load on April 8; and the flooded
portion of the test at the given load was completed on April 11.  Exhibit 13091 at 328-30. 
This test was not conducted pursuant to ASTM D5333.  The periods of time between loading
the sample and inundating with water exceeded the recognized standard times; the sample
was no longer at its in situ moisture content.  The reports indicate no deviations from the
ASTM standard.  The test report was not initialed as having been reviewed.  Exhibit 13091
at 328.  Initially, the test report depicts a collapse of eight percent, viewing the percent strain,
which is a moderately severe collapse potential under the standard.  Exhibits 13091 at 378,
5288 at 908.  A later test report depicts a collapse of twelve percent, which is a severe
collapse potential under the standard.  Exhibits 13113 at 565, 5288 at 908.
33. The TP8 sample was collected at a depth of .6 to .8 meters.  Exhibit 13091 at
340.  A single consolidation test of a portion of the TP8 sample began March 24, 2005, and
was run through April 18, 2005.  Exhibit 13091 at 354-57.  A test sheet was annotated:
“Flood when finished - just to see what happens[.]”  A collapse test was then performed on
that sample which was flooded on April 18 with results recorded for April 18-19, 2005. 
Exhibit 13091 at 358.  The periods of time between loading the sample and inundating with
water exceeded the recognized standard periods; the sample was no longer at its in situ
moisture content.  The reports indicate no deviations from the ASTM standard.  The test
report was not initialed as having been reviewed.  Exhibit 13091 at 354.  At first, a
consolidation test report was produced which does not indicate the results of flooding. 
Exhibit 13091 at 346.  A later consolidation test report shows a collapse of seven percent,
viewing the percent strain.  Exhibit 13113 at 5665.
34. In an initial report, dated April 29, 2005, the geotechnical engineer concluded
that the upper silt layer (that is, the layer beneath the top soil and above the gravel layer) is

CBCA 1559 20
collapsible and unsuitable for supporting foundations intended to be used by the contractor. 
Exhibit 949 at 452.  The report includes the consolidation/collapse test results for TP7, but
only the consolidation test results for TP8.  Exhibit 949.  The report describes the
characteristics of the upper silt layer as including numerous, generally vertical holes, collapse
tests (plural) showing severe collapse potential, relatively high void ratio, low in situ density,
low moisture content, and slaking.  Exhibit 949 at 460-61 (¶ 2.4.2).
35. On April 29, 2005, the contractor informed the agency that, based upon the
geotechnical investigation, and as confirmed by tests, the upper layer of soil at the site is
unacceptably collapsible.  The notification specified that pursuant to clauses H.29 and H.30,
the contractor deemed this condition to constitute a differing site condition, and anticipated
cost and time impacts.  The contractor sought agency concurrence with recommendations and
immediate direction.  Exhibit 13103.
36. A project executive for the agency responded on May 3, 2005, noting that a
review of the final geotechnical report had not occurred.  However, the response identified
a paragraph of the preliminary investigation report referenced in the solicitation that states
that the layer is not recommended to receive foundations because of its weak characteristics
and its too great heterogeneity, Finding 28.  The project executive stated that, based upon
this, he intended to recommend to the contracting officer that a request for an equitable
adjustment be rejected in its entirety.  Exhibit 13107 at 43.  The contractor provided a
response, noting that the solicitation gave no indication of the need for removing the soil here
at issue.  Exhibit 13106 at 15-16.  On May 5, 2005, the agency acknowledged receipt of the
notice of what the contractor deemed to be a differing site condition, and stated, “please also
note that our representatives do not agree with this determination.”  Exhibit 13114.  The
contractor responded to the agency, with a letter seemingly of May 5, 2005 (although dated
April 5, 2005), recognizing that the agency had written:
Since this is a design build contract we are not in a position to direct you to
over excavate or not.  This is a design problem and not a change to the
contract.  You need to provide a[n] engineered solution that meets the
requirements of the contract taking into consideration the questionable bearing
capacity of the soils th[at] was clearly noted in the RFP [request for proposals].
Exhibit 13116 at 27-28. Acknowledging the design-build nature of the contract, the
contractor sought “clear direction,” as it asserted that it “is imperative that we understand
precisely what you want us to do.”  Exhibit 13116 at 27-28.

CBCA 1559 21
37. With on-going discussions (internal within the agency, between the contractor
and geotechnical engineer, and between the parties), e.g., Exhibit 405 at 561-64, on May 10,
2005, the agency informed the contractor that the agency would not provide a directive to
over excavate and backfill; the agency found no differing site condition.  The correspondence
acknowledged and made a matter of record that the contractor might on its own select as a
means and methods to over excavate and backfill.  Exhibit 13119 at 28.
38. Recording the depth of each sample, the contractor’s geotechnical engineer
took additional acceptably undisturbed soil samples from the site between May 23 and 25,
2005; consolidation/collapse testing was performed on four samples.  Testing of sample B1
began on June 6, flooding occurred on June 9 (with flooded results recorded through June
13), and testing concluded on June 21, 2005.  Exhibit 13091 at 374-77.  Testing of sample
B4 began no later than June 9, flooding occurred on June 9 (with flooded results recorded
through June 13), and testing concluded on June 20, 2005.  Exhibit 13091 at 365-67. Testing
of sample B8 began on June 6, flooding occurred on June 9 (with flooded results recorded
through June 13), and testing concluded on June 20, 2005.  Exhibit 13091 at 360-63.  Testing
of sample B9 began on June 6, flooding occurred on June 9 (with flooded results recorded
through June 13), and testing concluded on June 21, 2005.  Exhibit 13091 at 369-72.  The
geotechnical engineer has written that the collapse tests were conducted pursuant to ASTM
D5333, Exhibit 13113 at 559; no deviations were noted.  The geotechnical engineer used by
the contractor characterizes the results of these tests as being based upon a Navy Facilities
Design Manual (not the ASTM D5333 standard), with two showing slight collapse (about
one-half percent) and two showing little collapse.  Exhibit 13113 at 560-61, 568, 570, 573,
574.  As with the earlier collapse testing, the periods of time between loading each sample
and inundating with water exceeded the recognized standard periods; each sample was no
longer necessarily at its in situ moisture content.  Transcript (June 4) at 186.  The reports
indicate no deviations from the ASTM standard.  As interpreted by one of the experts for the
contractor, these samples showed either no or negligible collapse.  Transcript (June 4) at 177.
39. The contractor submitted a request for equitable adjustment, dated July 1, 2005,
based upon an unforeseen condition (the existence of collapsible soils).  The request sought
$1,159,619 in direct and delay costs, with delay costs reflecting an estimated forty days of
extended site overhead.  The report includes an independent party’s review and analysis in
support of the contractor’s position; the Board finds that, because of the limited nature of the
analysis, the conclusions are not persuasively supported.  Exhibit 405 at 930-58.
40. In a July 5, 2005, addendum to the report of April 29, 2005, the geotechnical
engineering and consulting company summarized its further investigations and results.  The
report states:

CBCA 1559 22
Neither density, plasticity, liquid limit, classification, nor geographic location
appear to be reliable predictors of collapse potential.  As indicated in the
[solicitation’s preliminary] report, the Upper Silt appears to be heterogeneous. 
The variability may be further complicated by the presence of significant lime
in the soil which may substantially impact the behavior of the clay fraction of
the soil, causing it to behave more like silt.  This may explain why soils do not
always behave as anticipated[.]
Exhibit 13113 at 561.  As in earlier versions, this report concludes that all of the upper silt
layer should be considered suspect of having an unacceptable collapse potential, and
recommends that all of the upper silt, defined to the depth of the upper gravel layer, be
removed from beneath structures.  Exhibit 13113 at 561.
41. The contractor acted pursuant to the recommendations of the geotechnical
engineer in removing the upper silt layer, while the agency refused to acknowledge the
existence of a differing site condition.
42. On August 3, 2005, the contractor sought from the agency an update on the
status of the request for an equitable adjustment concerning the alleged differing site
conditions.  On August 11, 2005, the agency informed the contractor that the request would
not be accepted.  Exhibit 405 at 1149.  By letter dated October 17, 2005, the agency formally
rejected the request of July 1, 2005.  Exhibit 43 at 510.
43. Experts for each side have opined, in submissions, expert reports, expert
responses, depositions, and hearing testimony, on the nature of the soil under the structures
at issue.  The record also includes published articles authored or co-authored by these experts
and others.  The experts presented by the contractor are absolutely certain of their position
that the upper layer of soil is unacceptably collapsible, meriting removal, as they find support
in the test results as well as the characteristics of the soil.  E.g., Transcript (June 4) at 14-18.
The experts presented by the agency are not convinced of that conclusion, as they find the
test results unreliable and the characteristics as not necessarily indicating collapsible soil. 
E.g., Transcript (June 5) at 67, 72, 98-100.
44. Having weighed the evidence, the Board concludes that the collapse tests were
not performed pursuant to acceptable standards and the test results have not been shown to
be reliable.  The characteristics of the soil, without a valid collapse test, do not demonstrate
the degree of collapsibility of the soil.  Accordingly, the Board does not conclude that the soil
was collapsible, or collapsible to a degree significant to the design of the foundations.

CBCA 1559 23
45. In explanation of these conclusions, some matters are particularly noteworthy. 
The record does not satisfactorily establish, by a preponderance of the evidence or more-
likely-than-not standard, the degree, if any, that extending the period from sample collection
and the start of testing to the conclusion of collapse testing affected the collapse test results,
be that insignificant, significant, or somewhere in between.  The contractor is correct, first,
that testing the effects of drying recompacted soils is not directly helpful in determining the
effects of drying undisturbed soil, and, second, that the agency did not test actual soils from
Haiti.  However, the contractor has presented no actual test results on the effects of drying
on undisturbed soils (hypothesizing is not the equivalent of actual test results; one typically
would use tests to support a hypothesis), and no test results on soil from Haiti were run
pursuant to the recognized standards.  The contractor, with the burden of proof, has not
presented sufficient evidence.  It was within the contractor’s ability to obtain and test samples
according to standards.
46. The characteristics of the soil and site observed by the geotechnical engineer
did not lead him to the conclusion that the upper silt (or any layer thereof) must be
collapsible.  The concern was minimal, as expressed in a contemporaneous email message,
and revealed by the ordering of a single collapse test.  Finding 30.  The totality of the soil
characteristics (including post-award testing other than collapse testing) may well
demonstrate that the soil is potentially collapsible.  However, the actual collapse of the soil
and the degree of collapse are not determined on those characteristics alone.  Exhibit 18861
at 4-7.  The record does not establish a reasoned basis to conclude that the soil in fact was
unacceptably collapsible.
47. These findings and conclusions that the collapse test results have not been
shown to be reliable, and that the record does not convincingly demonstrate that the soil
reflected a differing site condition, resolve the differing site conditions claim.  Moreover, the
testing of such few samples, even if valid tests were performed with reliable results, leaves
additional questions relating to the appropriateness of deeming the soil unacceptably
collapsible, or of extrapolating the particular instances of collapse at TP7 and TP8, each
taken at a specific depth, in a particular soil in the upper silt layer, to areas in the footprints
of the structures here at issue.  Stated differently, the experts for the contractor deem
unacceptable the risks of collapse at the entire site (or at least the footprints in question) with
the degree of collapse shown by TP7 alone, or with TP8; the experts for the agency reach a
more limited conclusion.  Transcript (day 15) at 72, 99-100 (would advise of the need for
more testing).  Journal articles warn against characterizing a site with just one test.  Exhibit
5305 at 136.  The contractor has not supported adequately its characterization of the soil
conditions here at issue with the observations and test results (even if deemed properly
performed).

CBCA 1559 24
Discussion
Differing Site Condition Claim
The contractor bears the burden of proof under the Differing Site Conditions clause,
Finding 5.  The contractor asserts the existence of both a type 1 and a type 2 differing site
condition.  A necessary element of proof under the clause, for either type, is the existence of
a differing site condition.  Here, the assertion is that the upper silt layer of soil is collapsible. 
Factually, the Board has determined that the contractor has not met its burden of proof.
The testing of the soil was not performed pursuant to recognized standards.  The test
results have not been shown to be reliable indicators of the collapsibility of the soil, either
in terms of collapse versus no collapse, or the degree of collapsibility.  The totality of the
evidence does not demonstrate the soil is unacceptably collapsible so as to require the
removal of the soil.  Without this necessary element of collapsibility, the claim of a differing
site condition fails.  Although the contractor complied with the recommendations of its
geotechnical engineer, those recommendations were based upon visual observations and
results of collapsibility tests that had not been performed in accordance with accepted
standards.  The Board recognizes that an engineer with the totality of the test results and
observations may be unable to propose a design which leaves the undisturbed soil layer in
place; however, adequate, reliable testing could enable a different conclusion or
recommendation.  Sufficient proof of a differing site condition is lacking in this record.  The
speculation required by the inadequate and insufficient testing does not enable a conclusion
that a differing site condition existed.  Without adequate support for the existence of a
differing site condition, the contractor is not entitled to receive additional time or money for
its efforts under the design-build contract.
The contractor asserts that the agency should not now be heard, several years after-
the-fact, to complain about the contractor’s testing plan and methodology (e.g., the number
of borings made, locations of borings and test pits, number of tests performed--including
response-to-wetting tests--or the type of tests performed).  The agency timely put the
contractor on notice that the agency was not accepting the differing site condition conclusion
proposed by the contractor.  The agency suggested that further testing would be required. 
The contractor had further testing performed.  Those results indicated no significant
collapsibility of the samples tested.  That the six collapse tests were performed with
deviations from the ASTM D5333 standards was not noted in the reports to the agency.
The contractor also references the Differing Site Conditions clause as imposing a duty
on the contracting officer promptly to investigate after receiving notice of alleged differing

CBCA 1559 25
site conditions, with an obligation on the agency to provide direction.  The agency did
provide direction, rejecting the conclusion that a differing site condition existed and
permitting the contractor to proceed as it deemed appropriate under the design-build contract. 
The agency is not contending that the ultimate foundation design was improper; rather, the
agency contends that it is not obligated to provide additional time and/or money under the
contract because the contractor has not established the existence of collapsible soils (that is,
no differing site condition has been demonstrated to have existed).  On this point, the agency
is correct.
PART 3: PERFORMANCE, EXCUSABLE DELAY, AND ACCELERATION
Findings of Fact
Post-award Conditions and Performance
48. Shortly after award, on January 17, 2005, the contractor received another
message from the independent security firm concerning Haiti.  The message indicates that
a colleague in Port-au-Prince, working on a kidnap-for-ransom case, thought Kabul
compared favorably in terms of law and order.  The message notes that even with the United
Nations peacekeeping troops, the country remained unstable and violence persisted, with
continued volatility likely to hamper economic recovery in the medium term, and with
elections likely to cause further unrest.  The email message continues:
Economic difficulties have produced a widespread increase in criminal
activity, particularly kidnap-for-ransom.  Criminal gangs target wealthy
individuals and demand ransoms . . . to release their victims.  The rise in rates
of armed crime, murder and carjacking also remains a concern.  Public security
has deteriorated dramatically, particularly in Port-au-Prince.  Lower-income
areas of Port-au-Prince, especially the Cite Soleil, Bel Air and Carrefour areas,
are particularly unsafe.  However, all areas, including the affluent suburb of
Petionville, suffer from random crime.
Business personnel should only undertake essential travel to Haiti.
Exhibit 6147 at 249.
49. As noted, the authorized departure for non-emergency personnel and family
members of embassy employees terminated on March 11, 2005.  Exhibit 16186.  A Travel
Warning issued that date reported the lifting of the authorized departure, but warned United

CBCA 1559 26
States citizens of the dangers of travel to Haiti due to the volatile security situation. 
“Americans are reminded of the potential for spontaneous demonstrations and violent
confrontations between armed groups.”  The warning encouraged vigilance in light of the
potential for looting, the presence of intermittent roadblocks set by armed gangs or the
police, and the possibility of random violent crime, including kidnapping, car jacking, and
assault.  It noted that travel could be hazardous within Port-au-Prince, and that United States
businesses continued to operate in Haiti, but took special precautions to protect their facilities
and personnel.  Exhibit 995 at 782-83.  An agency press guidance issuance of that date notes
the termination, and explains why the agency reissued a Travel Warning: “While security has
stabilized somewhat, we still believe that conditions warrant a travel warning.”  Exhibit
16188 at 468.
50. On May 26, 2005, ordered departure from Port-au-Prince was approved for a
period of thirty days (with continuation or termination to be requested following re-
evaluation) of eligible family members and non-emergency personnel at the embassy. 
Exhibit 21717.  This ordered departure did not apply to the contractor.  A Travel Warning
(#17) was issued on May 26, 2005,
to warn American citizens of the continued dangers of travel to Haiti.  Due to
the volatile security situation, the Department has ordered the departure of
non-emergency personnel and all family members of U.S. Embassy personnel. 
The Department of State warns U.S. citizens to defer travel to Haiti and urges
American citizens to depart the country if they can do so safely.
Exhibit 996 at 435.  The warning states, “Americans citizens who remain in Haiti despite this
warning are urged to consider departing.”  Exhibit 996 at 436.  As in the Travel Warning of
March 2005, Finding 49, the warning reminded Americans of the potential for spontaneous
demonstrations and violent confrontations between armed groups, the potential for looting,
the presence of intermittent roadblocks set by armed gangs or the police, and the possibility
of violent crime, including kidnapping, car jacking, and assault.  Also, as in earlier warnings,
it noted that travel could be hazardous within Port-au-Prince, and that United States
businesses continued to operate in Haiti, but took special precautions to protect their facilities
and personnel.  As in the earlier warnings, this warning also advises, “U.S. citizens who
travel to or remain in Haiti despite this Travel Warning must remain vigilant with regard to
their personal security and are strongly advised to register online . . . or contact the Consular
Section of the U.S. Embassy in Port-au-Prince . . . .”  Exhibit 996 at 435-36.
51. On May 27, 2005, the contractor informed the agency: “We are following the
instructions contained in the Department of State instructions [in the Travel Warning].  All

CBCA 1559 27
of our expat [expatriate] staff will leave Haiti no later than Tuesday after we secure our
temporary establishments.”  The contractor advised of contractual implications relating to
delays and additional costs.  Exhibit 21731 at 35-36.
52. Later that same day, the agency responded to the contractor:
This email is to inform you that at the current time no directive to stop work
or suspend work at the site will be forthcoming from this Department to you
for this project.  Safety is a primary concern for all of us and this condition is
being monitored.  Your firm can stop performance on this site unilaterally if
it deems that force majeure conditions make performance impossible, but in
such a case even if the USG [United States Government] agrees as to the
existence of force [ma]jeure conditions your firm would only be entitled to a
time extension and not an equitable adjustment for delay costs.
Exhibit 21731 at 35.
53. On May 31, 2005, the contractor notified a subcontractor performing
excavation on site:
As a result of actions and directions by our client, the U.S. State Department
related to recent security incidents in Port-au-Prince, the management of J.A.
Jones, International has ordered that our expatriate personnel depart from
Haiti.  Accordingly, we will be departing tomorrow morning.  It is our
expectation and our hope that the State Department will provide definitive
direction to JAJI that will allow us to proceed with this project shortly.
Our Contract does not permit permanent works to proceed without an
American supervisor present.  Therefore, [you are] hereby directed to suspend
all excavation of soils and placement of backfill effective at the close of
business today.  You are further directed to ensure that the excavations are
properly bermed and stockpiles are properly shaped to protect the existing
works from storm damage to the extent possible by the end of today’s work.
Exhibit 21782.  On June 1, 2005, expatriate personnel of the contractor departed Haiti;
American citizens in the employ of the contractor did not remain.  Exhibit 21785.  Work on
the critical path of performance ceased.

CBCA 1559 28
54. The Department of State issues Warden Messages which provide safety or
travel information  concerning countries or localities, with such messages sent by email to
those registered for such receipt; the messages convey timely information on changing
conditions.  A Warden Message (#18) of June 3, 2005, noted that all United States embassy
personnel had been advised that all travel to and from the airport must be in lightly armored
vehicles (LAVs), with specified roads approved for airport travel.  The message repeated
information in the Travel Warning referenced above (reminding Americans of the potential
for demonstrations and confrontations, and summarizing the variety of violent crimes). 
Exhibit 5609 at 435-36.
55. During the ordered departure period, which was extended, the agency approved
travel to Haiti for specific individuals. Exhibits 5666-73, 5700.  One such approval issued
on June 13, 2005, permitting the visit of one individual to provide supervision of on-site
security personnel in support of the construction project, specifies:
The crime situation has reached critical levels in Port-au-Prince. 
Demonstrations occur at irregular intervals in and around the Embassy area. 
At times, demonstrations have blocked roads leading to the Embassy with
burning tires and garbage.  Carjackings and armed robberies are on the
increase within Port-au-Prince area and can occur at any time of day or night. 
To avoid being a victim of crime, [temporary duty] personnel are strongly
advised to observe the following common-sense rules: . . . In Port-au-Prince
traffic is gridlocked and driving is dangerous.  The Cite Soleil area of Port-au-
Prince is currently off-limits to all personnel.  Visitors are reminded to lock
vehicle doors and keep their windows rolled up at all times.  When traveling
outside the Port-au-Prince area, personnel are requested to travel with at least
two vehicles for safety reasons.
Exhibit 5674.
56. By letter dated June 17, 2005, the contractor informed the agency of its position
“that these recent events represent changed circumstances that are compensable under the
terms of the contract and that any resulting delay is excusable.”  The letter specifies further,
With respect to alternative options, we wish to reiterate that JAJI remains
committed to the project and wants to find a way to make this work.  We must
however have adequate assurances that the Government will recognize its
contractual responsibility to fund the various measures which will allow JAJI
to execute the work in a safe environment.

CBCA 1559 29
Exhibit 21995 at 218.  In terms of proceeding with performance, the contractor stated:
Given the current situation, in order for JAJI to return its personnel to Haiti,
we would have to implement extraordinary security measures.  These include,
but are not limited to, providing additional armored vehicles, changing the plan
for individual housing to a “camp style” situation nearer to the project site, and
additional security personnel and equipment.  These measures will require time
to implement before we can return the expatriate personnel to Haiti. 
Furthermore, it is expected that the security situation and measures to cope
with it will severely impact JAJI’s ability to prosecute the work in an efficient
and timely manner.  We therefore wish to caution that a resumption of work
in [Port-au-Prince] is certain to involve substantial additional initial costs and
subsequent inefficiencies in productivity if we are directed to return.
Exhibit 21995 at 225-26.  In a conversation with the contractor on June 23, 2005, the agency
indicated that it considered there to be no changed conditions in Haiti, and that no assurances
were provided during the preproposal conference.  The agency requested that the contractor
determine the security enhancements it thought necessary to return to the site; that is, develop
a plan and cost of implementing the plan, with information from proposal calculations to
demonstrate what the contractor had included in its pricing.  Exhibit 16330.
57. On June 25, 2005, the ordered departure was authorized to continue for a
period of thirty days.  Exhibit 22157 at 911.  A Warden Message (#19) issued on June 26,
2005, stated that due to the volatile security situation in Port-au-Prince, the United States
embassy had further reduced the number of its non-emergency personnel and required the
departure of all family members of United States personnel.  The message urged citizens to
depart Haiti, if they could do so safely, and repeated the information referenced above
(reminding Americans of the potential for demonstrations and confrontations, and
summarizing the variety of violent crimes.  Also, “As unrest continues, it is important for
U.S. citizens to assess their personal security situation and decide whether to depart Haiti.” 
And, “Ordered departure status of an Embassy signals that the US Government is concerned
for the safety of its employees and should be considered a strong signal to private U.S.
citizens.”  Exhibit 22143 at 133.
58. On June 28, 2005, the embassy established, for all of its direct-hire American
staff, mandatory rules relating to curfew and the requirement to travel in a LAV with an
armed escort.  These rules did not apply to the contractor.  Exhibit 22159.

CBCA 1559 30
59. On July 1, 2005, the contractor responded to the agency request of June 23,
providing “concept plans and alternatives” instead of any pricing information.  In part, the
contractor stated:
It is, therefore, imperative that we mutually understand the available options,
and not under-estimate the financial and schedule implications of this difficult
and complex undertaking.
In order for JAJI to resume permanent construction work in Haiti, we will
require some type of clearly documented contractual agreement, defining the
terms and cost/schedule elements associated with such efforts.
Exhibit 405 at 1081.
60. By letter dated July 12, 2005, the contracting officer notified the contractor that
its demobilization from the jobsite was endangering performance.  Further, “the Government
regards [your] firm’s stated unwillingness to resume construction activities in Haiti until the
Government agrees to a substantial renegotiation of your contract as tantamount to a
repudiation of your contractual obligations amounting to anticipatory breach of contract.” 
Exhibit 16381 at 334.  The letter noted the agency’s position that no changed conditions had
arisen since the award of the contract, and that the civil unrest was essentially the same
condition that prevailed at the time of contract award.  The agency asserted that the Travel
Warning of May 26, 2005, was not an order to demobilize, but rather contained language
substantially the same as those since March 2004.  The contracting officer opined that the
contractor’s unilateral suspension of on-site activities would warrant a cure notice or an
immediate termination for default.  “We will defer any such action for ten days in the hope
that you will reaffirm your contractual undertakings and provide an acceptable plan for
progressing the work under its terms.”  Exhibit 16381 at 334-35.
61. The contractor responded by letter dated July 15, 2005, expressing its belief
that significantly changed conditions in Haiti presented a unique circumstance that is
compensable under the contract, and specifying that it did not intend to repudiate its
obligations, as it intended to perform and had continued to perform (e.g., design,
procurement, and shipping) while not on site.  The contractor stated that it did not view the
Travel Warning as a de facto suspension of work.
Rather, JAJI directed its employees to leave [Port-au-Prince] (and to attempt
to continue working from the Dominican Republic) because it assessed the
security situation as having deteriorated to the point where it could not

CBCA 1559 31
reasonably allow them to remain without implementing substantially enhanced
security measures.  This assessment was substantiated and reinforced by the
May 26 Travel Warning, which “ordered the departure of non-emergency
embassy personnel,” and “urge[d] American citizens to depart the country if
they can do so safely.”  Just as the Department’s ordered departure reflects its
concern for the safety of its employees, JAJI’s decision reflects its own
concern and duty to reasonably ensure the safety of its employees.
Exhibit 18065 at 729-30.  The contractor further opined that any direction to come back
under current conditions would be a constructive acceleration entitling it to additional
compensation, and noted that it would resume permanent construction work as soon as it was
assured that it could adequately protect its employees “given the new reality of significantly
increased violence and civil unrest that was not present at the time of contract award” and
the agency “recognizes that the additional costs of providing such protection are not included
within the current fixed-price of the contract.”  Exhibit 18065 at 731.
62. On July 21, 2005, the ordered departure was extended for a period of thirty
days, through August 23, 2005.  Exhibit 5705 at 970.
63. The contractor provided the agency with a request for equitable adjustment
(REA) dated July 26, 2005, setting forth security costs and general concepts from its
proposal, and estimates for additional security measures (LAVs, enhanced communications,
security housing measures, and additional guards), credits if requirements for cleared
Americans (CLUS) were reduced, and increased labor costs reflecting incentives under the
difficult security circumstances to obtain and retain personnel.  Exhibit 16437.
64. The contracting officer provided a response, by letter dated July 29, 2005,
explaining, while assuming that crime and civil unrest in Haiti had materially worsened since
award, that there was no contractual basis for additional compensation for performing the
contractual scope of work under the firm, fixed-price contract: “such worsening of civil
conditions, as may have occurred in Haiti since contract award, was neither unforeseeable
nor has it necessitated a delay in the work.”  The letter concludes, “In the absence of a plan
for JA Jones to resume work on-site, the Government will consider whether it is appropriate
to issue a show cause letter with respect to your progress on the project.”  Exhibit 18070.
65. In a responsive letter dated August 9, 2005, the contractor expressed its
disagreement with the views of the contracting officer: “JAJI’s position has been that where,
as here, the security environment substantially deteriorates far beyond the point where the
reasonable security measures that a contractor should have been expected to employ to

CBCA 1559 32
perform the work are no longer adequate to protect its workforce, the fixed-price nature of
the contract does not preclude the contractor from recovering the costs associated with
providing additional security when the Government directs (explicitly or implicitly)
continued performance.”  However, the contractor specified that consistent with the direction
of the agency, “JAJI will now continue the implementation of all necessary security measures
and seek the compensation to which it is entitled through the claims process.”  Exhibit 22584
at 369-70.
66. Also on August 9, 2005, the agency provided clearance for entry to Haiti for
an agency employee to provide project director support for this project.  The clearance states,
in part:
The crime situation has reached critical levels in Port-au-Prince. 
Demonstrations occur at irregular intervals in and around the Embassy area. 
At times, demonstrations have blocked roads leading to the Embassy with
burning tires and garbage.  Carjackings and armed robberies are on the
increase within Port-au-Prince area and can occur at any time of day or night.
Exhibit 22596 at 870.  (The reference to the embassy area is to the existing embassy, not the
project under construction, which is distant from the existing facility.)
67. The contractor began remobilizing to the jobsite, with a phased approach
dependent upon its defined set of security measures to accommodate the increased staff. 
Exhibit 405 at 0698.  On May 29 and 31, 2005, the contractor had eleven and nine personnel,
respectively, in Haiti.  As of June 2, 2005 (the day after departures), the contractor had five
personnel, the number that remained until August 1, 2005, when it rose to seven.  For the
remainder of 2005 (at least through November): From August 20 and thereafter, there were
at least nine personnel; by September 12, there were at least twelve personnel; and by
October 22 there were at least fourteen personnel.  Exhibit 25909.  On September 21, 2005,
critical path work resumed (excavation for the main building).  Exhibit 3903.
68. On September 14, 2005, the contractor submitted a request for equitable
adjustment for a compensable time extension, seeking time due to the alleged security-related
issues, that is, relating to its departure from the site (111 days) and the alleged differing site
condition (26 days) as discussed in Part 2 above, and a total of $1,002,081 in costs known
to date.  Exhibit 185 at 54-55.  The agency rejected project execution schedules submitted
by the contractor, because the schedules did not reflect completion by July 3, 2007.  Exhibit
15519 (Nov. 7, 2005) at 333.  By letter dated December 9, 2005, the contractor informed the
agency that it deemed the agency’s refusal to allow additional time to be a constructive

CBCA 1559 33
directive to accelerate performance.  Exhibit 188.  By letter dated December 11, 2006, the
agency informed the contractor that the agency would withhold 10% retainage from monthly
progress payments based upon the contractor’s projected completion date of May 31, 2008,
instead of the contract completion date of July 3, 2007.  Exhibit 18164.
69. Superseding the Travel Warning issued May 26, 2005, a Travel Warning dated
November 22, 2005, was issued to alert American citizens to the continued dangers of travel
to Haiti.  The warning noted that the ordered departure of non-emergency employees and
adult dependents had been lifted (not so for dependents under age twenty-one).  Other items
in the warning included a reminder of the potential for spontaneous demonstrations and
violent confrontation between armed groups, and for looting, the presence of intermittent
roadblocks, and the possibility of random violent crime, including car jacking and assault. 
The warning states that travel could be hazardous within Port-au-Prince, notes that some
areas are off-limits to embassy personnel, and indicates the existence of an embassy-imposed
curfew.  Further, “Kidnapping for ransom remains a particular threat, with over 25 American
citizens including children kidnapped over the past year.  National elections have been
scheduled for late 2005 and early 2006.  These elections may become a stimulus for further
social tension, which could include violence.”  Exhibit 997 at 998-99.
70. By email message dated December 20, 2005, the agency stated that it was not
responsible for any delay, thereby rejecting the contractor’s view that constructive
acceleration existed.  Exhibit 405 at 1217.
71. A Warden Message (#21) of December 29, 2005, stated that due to the recent
increase in kidnappings, the embassy had instituted a more restrictive travel policy and earlier
curfew for embassy employees.  Exhibit 5612.
72. On July 7, 2006, a Travel Warning noted that the State Department had lifted
the ordered departure of embassy employee dependents under age twenty-one, and repeated
the earlier warnings of the dangers of travel to Haiti and hazards within Port-au-Prince. 
Also, “Kidnapping for ransom remains a serious threat, with more than 50 American citizens,
including children, kidnapped over the past year.”  Exhibit 998 at 755-56.
73. The security situation in Haiti continued to pose various risks over the course
of performance.  Although there has been much testimony and numerous documents
addressing the situation, the next Travel Warning, of January 10, 2007, summarized the
difficult situation in 2006 and urged caution in 2007.  The warning began by noting that it
is a reminder to American citizens of ongoing security concerns in Haiti, including frequent
kidnappings of Americans for ransom.  Travelers were strongly advised to thoroughly

CBCA 1559 34
consider the risks before travel to Haiti, and to take adequate precautions to ensure their
safety if they did so.  The warning further specified:
2. U.S. citizens traveling to and residing in Haiti are reminded that there is a
chronic and growing danger of kidnappings.  Most kidnappings are criminal
in nature, and the kidnappers make no distinctions of nationality, race, gender
or age; all are vulnerable.  Over 60 Americans were kidnapped in 2006, most
in Port-au-Prince.  Many abductions are the result of carjacking or home
invasions.  Past kidnappings have been marked by deaths, sexual assault,
shooting and physical assault of Americans.  The lack of civil protections in
Haiti, as well as the limited capability of local law enforcement to resolve
kidnapping cases, further compounds the element of danger surrounding this
trend.
3. U.S. citizens are also reminded of the potential for spontaneous protests and
public demonstrations that can occur at any time, day or night, and may result
in violence. . . . [There exists t]he potential for looting; the presence of
intermittent roadblocks set by armed gangs or by the police; and the possibility
of random violent crime, including carjacking and assault.
4. Travel can be hazardous within Port-au-Prince.
Exhibit 999.
74. A Travel Warning dated August 31, 2007, reinstated and updated the warning
of January 10, 2007, and reminded “American citizens of ongoing security concerns in Haiti,
including frequent kidnappings of Americans for ransom.  Travelers are strongly advised to
thoroughly consider the risks before travel to Haiti, and to take adequate precautions to
ensure their safety if traveling to Haiti.”  Exhibit 1000 at 30.  The Travel Warning continued:
2.  U.S. citizens traveling to and residing in Haiti are reminded that there
is a chronic danger of violent crime, especially kidnappings.  Most
kidnappings are criminal in nature, and the kidnappers make no distinctions of
nationality, race, gender or age; all are vulnerable.  As of the date of this travel
warning, there have been 12 Americans kidnapped in 2007, most in Port au
Prince.  Past kidnappings have been marked by deaths, physical and sexual
assault, and shooting of Americans.  The lack of civil protections in Haiti, as
well as the limited capability of local law enforcement to resolve kidnapping
cases, further compounds the element of danger surrounding this trend.

CBCA 1559 35
3. U.S. citizens are also reminded of the potential for spontaneous protests
and public demonstrations that can occur at any time, day or night, and may
result in violence.  American citizens are advised to take commonsense
precautions and avoid any event where crowds may congregate.  Visitors and
residents must remain vigilant due to the absence of an effective police force
in much of Haiti, the potential for looting, the presence of intermittent
roadblocks set by armed gangs or by the police, and the possibility of random
violent crime, including carjacking and assault.
4. Travel is hazardous within Port-au-Prince.  Some areas are off-limits
to embassy staff, including downtown Port-au-Prince, after dark. . . . 
5. Due to the current security situation in Haiti, the Department of State
reminds U.S. citizens traveling to or residing in Haiti to remain vigilant with
regard to their personal security . . . .
Exhibit 1000 at 30-31.
75. On June 29, 2007, the agency unilaterally issued a contract modification
(number 14) with an effective date of June 28, 2007.  The modification stated that its purpose
was to extend the period of performance by 143 days; the new period of performance ended
on November 24, 2007.  Exhibit 25296 at 205.  Without the modification, the contract
completion date had been July 3, 2007.  In a cover letter, the contracting officer explained
the modification includes a time extension in response to various requests for equitable
adjustments filed by the contractor.  Exhibit 25296 at 204.  The 143 days equates to the sum
of the 111 days relating to the contractor’s departure from the site and lack of work on the
critical path, 26 days relating to the alleged differing site condition, 4 days relating to a labor
strike, and 2 days relating to a transportation strike.  For these final incidents totaling six
days, the modification issued approximately five weeks or less after a request for an equitable
adjustment.  Exhibit 25907.  The extension for these six days was reasonably prompt; the
record does not indicate that the contractor expended any particular resources to overcome
these six days of delay.
76. Subsequent to modification 14, when a contracting officer recognized
excusable delays of 143 days, the agency issued various other contract modifications,
extending the performance period by an additional fifty-four days.  Some of those days
related to additional or changed work, others to strikes, weather, a Haitian government
holiday, and demonstrations.  Time extensions for thirty-nine of the days were issued after

CBCA 1559 36
substantial completion.  Exhibit 25907.  The record does not demonstrate that the contractor
was required to expend any particular additional resources to overcome any of these delays.
77. A Travel Warning, dated April 11, 2008, which was after substantial
completion, Finding 3, was issued to inform American citizens of violent demonstrations in
Haiti and to urge American citizens to defer non-essential travel to Haiti.  The warning,
which superseded that of June 29, 2007, noted that official American citizens were restricted
from travel to Haiti, and stated that American citizens visiting Haiti should consider
departing as soon as circumstances permitted.  The warning specified that travel is always
hazardous within Port-au-Prince.  Exhibit 1001 at 33-35.
78. During the performance period, Port-au-Prince, as well as Haiti generally,
experienced ups and downs in security and violence, with hours or days of unrest, shootings,
kidnappings, and crime.  The numbers of kidnappings of American citizens and children
were not insignificant; kidnappings affected those directly involved and those living and
working in that environment.  The levels and spread of violence and insecurity that occurred
during the period of performance were not unanticipated during proposal preparation.  As
previously found, Haiti was known to be an unstable country, with portions of Port-au-Prince
particularly unsafe (i.e., around the existing embassy, the cement plant used by the contractor,
and the embassy warehouse).  Unsafe areas and conditions can affect the transportation of
workers, materials, and equipment.  The violence and security concerns did not cease or
abate with contract completion; had performance continued the contractor would have faced
similar challenges to those during performance.  The contractor performed amidst the
conditions, taking actions it deemed necessary to provide for the security of its personnel and
property. Its efforts included the purchase of additional LAVs and the creation of a man
camp near the work site to house personnel.
79. The contracting officer received a certified claim from the contractor on
July 28, 2008.  The contractor sought an upward adjustment of $43,808,837 in the contract
price, an additional extension of 234 calendar days in the contract’s substantial completion
date, and a determination that the agency is not entitled to assess liquidated damages against
the contractor.  Exhibit 404.  The contracting officer denied the claim.  Exhibit 403.  The
contractor has refined that claim to now seek $34,848,562, to which it adds profit of
$3,177,848, for a total of $38,026,410, plus interest from July 28, 2008.  That basic amount
is composed of the following:
$    532,125 additional earthworks subcontractor/geotechnical engineering
      967,408 evacuation, remobilization, and security change costs
   2,159,807 time-sensitive costs

CBCA 1559 37
 12,091,187 man camp costs
   7,579,332 craft labor and small tools costs
   1,757,535 additional equipment and fuel, oil and grease costs
   7,367,957 staff labor costs
      722,508 local labor lunches due to acceleration
      117,979 OBO/CST/CAG overtime due to acceleration
   1,552,724 general and administrative costs
Exhibit 18980 at 51.  (OBO--Department of State’s Bureau of Overseas Building Operations;
CST-- Construction Surveillance Technician, and CAG--Cleared American Guard).  The
contractor states that these costs represent the agency’s share of the contractor’s incurred
costs.
80. The contractor incurred costs of approximately (all amounts are approximate)
$12.6 million to install and demobilize the man camp, and $6.3 million for occupancy,
security, and miscellaneous costs.  From the sum of those figures, $18.9 million, it deducts
$1.6 million as credits for payments received from agency and other visitors, housing costs
avoided, and lunches not supplied.  Of that difference, $17.3 million, the contractor seeks
72%, the percentage of the acceleration it attributes to the agency.  Exhibits 15201 at 27-28,
25920 at 2.
81. For craft labor and small tools costs, the contractor’s supporting summary does
not seek $7,579,332, but rather $8,306,386, composed of estimated small tools costs
attributable to acceleration; costs for cleared United States workers wage uplift (increased
pay to hire or retain individuals); craft labor costs attributable to acceleration; and an amount
for loss of productivity.  Exhibit 15201 at 29-31, 291-301.
82. The contractor seeks to recover costs for equipment and fuel, oil, and grease
(FOG) that the contractor attributes to its efforts to recover excusable delays for which the
agency failed to provide a timely contract extension.  The contractor seeks $1.7 million for
rented equipment, $.36 million for purchased equipment less $.12 million for its salvage
value, and an agreed-upon percentage for the FOG.  The parties disagree on one particular
aspect of the costs of rented equipment; namely, the rental costs of $1 million incurred by the
contractor when it rented equipment from a wholly-owned subsidiary.  Exhibits 15201 at 31,
25920 at 4, 10.  The contractor’s determination of its costs for that rented equipment is
supported by the record and reflects reasonable costs given the circumstances in Haiti.  The
agency views the contractor’s charges as other than actual costs, so the agency utilizes
ownership costs pursuant to rates of the United States Army Corps of Engineers.  The rates
used by the agency are not comparable to those for performance in Haiti.

CBCA 1559 38
83. Of $7.4 million the contractor seeks related to staff labor costs, the contractor
attributes $5.9 million to total staff labor and overheads, to which it applies its 72%
acceleration factor; $2.3 million to loss of productivity (based upon 25% of staff labor costs);
$.4 million to security and differing site condition staff labor costs and a security uplift on
expat staff; and $.4 million to expat staff travel and subsistence.  Exhibit 15373 at 72.  These
figures are not reconcilable fully with others in the record.  Exhibits 15201 at 33-34, 308-42,
25920 at 4, 8, 10.  The agency contends that the contractor did not add all personnel as a
result of delay or acceleration for which the agency is responsible, that certain of the costs
should be part of the time sensitive category, and that although additional payments were
paid to original project staff, there is no agreement as to the reason or basis for agency
liability.  Exhibit 25920 at 4, 10.  The calculation of staff costs includes hours expended in
2005, prior to any claim period for excusable delay.  The costs are minimal.  Exhibit 15201
at 318-33 (schedules 7.1.1, 7.2.1).  The record does not tie the identified security/differing
site condition staff labor costs to the excusable delay and acceleration claim.  Other costs
relate to the contractor’s overall effort in performing the contract and overcoming the various
delays.
84. The contractor expended $1 million for lunches for local labor, of which it
attributes $.7 million to efforts to recover excusable delays for which the agency refused to
provide a timely extension.  Exhibits 15201 at 34-35, 15373 at 73, 25920 at 4, 8.  Finally, the
contractor incurred $163,860 in overtime costs for agency and other personnel, said to be
incurred because of delays.  The contractor seeks to recover $117,979, based upon the 72%
factor it used it allocating acceleration costs.  Exhibits 15201 at 35-36, 15373 at 73.
85. In this proceeding, the parties have reached a joint stipulation covering many
of the costs incurred by the contractor; that is, the parties agree that the record supports the
conclusion that the contractor incurred most costs as stated.  Of note, the parties have reached
no agreement on entitlement to any dollars or for any particular areas of costs.  Exhibit
25920.  Regarding acceleration, the agency disputes the contractor’s assertion that it
accelerated performance and its entitlement to any recovery for the claimed acceleration
costs.  However, the parties stipulate that if the contractor proves that the agency
constructively accelerated the project, it is appropriate to allocate the acceleration costs based
on each party’s share of the delay that caused the acceleration.  Exhibit 25920 at 4 n.15.  The
parties have stipulated to a rate for general and administrative (G&A) costs (4.68%) and a
rate for profit (9.15%).
86. One of the experts for the contractor summarizes his view of the contractor’s
actions:

CBCA 1559 39
JAJI began its acceleration efforts in late 2005 when it began working
on all available buildings and structures in an attempt to meet the original
Contract Completion Date.  Had JAJI been granted the time extension for
delays experienced as of that time, it could have followed its original plan to
pursue the work in a more sequential than concurrent method.  This would
have allowed for a more efficient use of its resources.  Ultimately, JAJI’s
acceleration was insufficient to overcome all Project delays as a result of
slower than planned production due to on-going security impacts and the skills
of the local workforce.  The costs associated with this multiple work front
approach, while more than anticipated at the time it prepared its bid, paled by
comparison to the costs JAJI was forced to expend in the fall of 2006 in an
attempt to mitigate the Project delays.
In the fall of 2006, JAJI changed its approach to the Project and made
the decision to invest significant additional resources in an attempt to complete
the Project as expeditiously as possible.  JAJI decided to add additional U.S.
expatriate supervision and import additional skilled labor in order to recover
delays associated with the differing site conditions, the evacuation, the on-
going security impacts and the lower productivity on the Project.
Exhibit 15401 at 57.  The decision to initiate work on various buildings simultaneously
related to the excavation and fill resulting from what the Board has concluded was not a
differing site condition.  This change in approach from the schedule was not induced by lack
of having been granted additional time to perform.
87. The record demonstrates that the contractor had devised and implemented
performance plans that were insufficient to complete the contract within the original and the 
modified performance period.  Factors in this include its foreign teaming partner, the
situation in Haiti (security, the skill level of the available local work force, and available
concrete and other resources) and its impact on recruitment and performance, and the
contractor’s security and management oversight.  The period of departure and the lack of a
timely excusable delay extension were not the significant factors in shaping many of the
contractor’s efforts and expenditures of dollars the contractor attributes to acceleration
related to excusable delay.  The security situation in Haiti required the contractor to commit
substantial additional resources in order to accomplish performance.  The reallocation of
resources and resequencing of performance, with work occurring on multiple fronts, as well
as the hiring of additional labor and supervisors, the purchase and rental of additional LAVs,
equipment and tools, and the creation of a man camp near the new embassy facility, were
efforts largely to cope with the security environment and to complete performance as

CBCA 1559 40
expeditiously as possible.  Even with these efforts, substantial completion occurred after the
modified contract date.  However, without a timely modification for the days of excusable
delay, the substantial completion date in the contract reflected a shorter period than was
required.  The shortened performance period affected the contractor’s scheduling and
planning to some degree.  The Board has the task of ascertaining the costs arising from the
untimely granting of the excusable delay, apart from the costs arising from the extra
excavation and fill (the non-differing site condition) and the general security environment,
under which the contractor was obligated to perform.  The acceleration and associated costs
cannot be measured precisely.
88. The contractor has introduced evidence of expert-prepared measured mile
analysis said to reflect labor inefficiencies in the concrete work on the main building, which
the contractor extrapolates to its work as a whole.  The Board concludes that such analysis
is of limited value.  Regarding just the concrete work, which required rebar and form work
to pour slabs (horizontal), walls (vertical), and other components, there were variations in the
work (vertical versus horizontal versus other components), sizes of pours, and the availability
of concrete.  While the experts from both sides arrive at differing degrees of efficiency by
grouping work periods differently, the analysis does not explain the causes of the seeming
inefficiency.  It may be that the variations over the performance period are normal or
anticipated based upon differences in work done; even if inefficiencies exist, attributing any
portion to the accelerating work is not certain.  In short, the experts have not convincingly
demonstrated that the work was inefficient or what the cause (be it acceleration or otherwise)
was of any inefficiency.
89. Even if the Board found meaningful inefficiencies in the performance of the
concrete work, it is another step to conclude that such rates of inefficiency should apply to
other work on the project.  Any limitations or inefficiencies affecting the concrete work have
not been shown to have affected or be replicated in other work.  Other trades performed work
at the project that encompassed several buildings.  Additional workers distributed over
different buildings, or on different floors, or in different rooms, may or may not have
performed with interference or obstruction.  We recognize that performance can become
inefficient or slow down with an overlapping of trades, whether the overlap is caused by
acceleration or otherwise.  The precise degree of inefficiency of the workforce because of
acceleration actions has not been demonstrated in this record.  In part, this is due to the
contractor hiring laborers from outside of Haiti, who were more skilled than those initially
hired, enabling quicker performance, albeit at a higher labor rate, with added costs of
recruitment.

CBCA 1559 41
90. Having dealt with its own erroneous expectations and scheduling, and various
delays (its own, agency, excusable, and other), the contractor achieved substantial completion
on March 31, 2008.  The contractor claims that it expended additional efforts and resources
to achieve an accelerated substantial completion date, that is, finishing sooner than it would
have otherwise.  With acceleration, some efforts and expenditures are off-set by savings on
labor and supervision, man camp, rental, and other costs that the contractor would have
incurred with a lengthened performance period.
91. Most of what costs the contractor describes as costs of acceleration simply
represent costs of performance under the given security environment and as required under
the contract as the contractor attempted to minimize liquidated damages and complete
performance in case the security situation worsened.  Even with its efforts, the contractor was
72 days late in completing substantial performance beyond the modified contract completion
date.  Moreover, the agency extended the completion date by modification 14 at the end of
June 2007, at which point the contractor had additional time to complete performance.
92. After conducting an analysis of delays occurring over the course of
performance, the experts for the contractor assign responsibility for calendar days of delay,
also broken down by time periods, with adjustments made for contractor acceleration: 211
to the agency, 47 to the contractor, and 35 to other causes, for a total of 293 calendar days
of delay.  Exhibit 15401 at 49.  The Board does not accept these figures as helpful in
determining or allocating the actual acceleration or the acceleration costs, given that they
reflect assignment to the agency and not the contractor of many of the security related delays. 
Further, the analysis credits the contractor with a disproportionate number of days of delay
recovered.
93. Through June 2007 the contractor was proceeding without a time extension and
had resequenced its work as it changed its approach in an attempt to complete the job earlier
than ultimately required.  With this revised approach the contractor overcame some of its
own shortfalls, as well as delays (agency, excusable, and other).  The agency’s position that
the contractor incurred no additional, compensable costs of accelerating performance is not
supported by the record.  Had the agency initially granted the excusable delay claimed by the
contractor, the contractor could have planned for performance with a different schedule and
sequence of work.  The months of excusable delay were a significant portion of the
performance period; after resuming performance, the contractor could allocate resources
differently based upon the period for completion.  That said, however, the contractor did not
achieve substantial completion within the original or modified periods.  The actual costs of
acceleration arising from the delayed granting of the excusable delay days are far more

CBCA 1559 42
modest than those derived with the contractor’s allocation of responsibility to the agency of
72% of the contractor’s costs.
94. The majority of the contractor’s costs were for dealing with the security
situation and not related to any agency-caused acceleration efforts.  In developing a
percentage, the Board finds that five percent is a figure that represents the overall or general
percentage of costs attributable to acceleration efforts caused by the agency’s initial denial
and eventual granting of an excusable delay.  The five percent figure lacks a mathematical
formula for its derivation, but is based upon a consideration of the record (with particular
attention paid to the reports and testimony of the experts and the testimony and submissions
of the contractor’s personnel) and the ultimate conclusions that a differing site condition did
not exist and that the security environment did not represent a changed condition affecting
the entire performance period.  Most of the contractor’s costs do not represent costs of
acceleration tied to the excusable delays.  In particular, the contractor expended significant
funds and time in dealing with the situation in Haiti, and to a lesser extent in dealing with the
alleged differing site condition.  Completing performance earlier than otherwise saved the
contractor various costs.
Discussion
Worsened and Varying Conditions
The contractor ties much of its claim for monetary relief and additional time to the
deteriorated conditions in Haiti, especially in and around Port-au-Prince.  The conditions
required the contractor to implement security measures for which it had not budgeted.  The
contractor was impacted in the hiring, retention, and housing of laborers and supervisors, in
the transportation of personnel, material, and equipment, and by the daily environment in
which performance occurred.  At times work was less efficient as workers were concerned
about their safety at, and getting to and from, the job site, and the safety of spouses, children,
and others who also resided in Haiti.  Conditions occasionally delayed deliveries and
transportation, for example, because of closures and actual or threatened unrest in the streets.
The worsening of and variations in the conditions in Haiti, by themselves over the
period of performance, do not represent an excusable delay or otherwise compensable basis
for a change under the contract.  The conditions in Haiti were known to pose security risks
and issues that would and could impact performance.  Prior to award, it was not unexpected
that conditions could deteriorate during performance.  As detailed in the facts and
summarized above, the potential for rising crime and security problems was real and
substantial, and expressed as a concern for individuals and businesses in Port-au-Prince,

CBCA 1559 43
specifically, as well as Haiti.  Further, just after award, with ordered departure still in effect
at the embassy, the contractor learned from the independent security firm it utilized that (a)
economic difficulties had produced a widespread increase in criminal activity, particularly
kidnap-for-ransom (criminal gangs were targeting wealthy individuals and demanding
ransoms); (b) a rise in rates of armed crime, murder and car jacking remained a concern; (c)
public security had deteriorated dramatically, particularly in Port-au-Prince; and (d) lower-
income areas of Port-au-Prince were particularly unsafe, while all areas, including the
affluent suburb of Petionville, suffered from random crime.  This information came with the
suggestion that business personnel should undertake only essential travel to Haiti.  Finding
48.  With the foreseeable obstacles ahead, a prudent contractor would take actions to ensure
that the contract could be performed on schedule.  Ultimately, the contractor took adequate
measures to protect against and perform under the security threats.  The contractor performed
its contractual duties; there were not compensable changed conditions under the contract.
The contractor underestimated what its performance entailed.  Given the place of
performance, what transpired does not represent unexpected impediments; the variations in
and deteriorations of the security environment fall within the foreseeable and probable. 
United States v. Brooks-Callaway Co., 318 U.S. 120 (1943) (the examples of excusable delay
itemized in the clause are not always unforeseeable; the attendant circumstances must be
considered).  Under the contract, the contractor assumed both expected and unexpected risks. 
Northrop Grumman Corp. v. United States, 47 Fed. Cl. 20, 56-57 (2000).  The risks of
deteriorated security conditions should have been recognized and anticipated prior to award,
given the conditions in Port-au-Prince and Haiti and that the solicitation and contract
expressly noted that the contractor bore risks with respect to labor, transportation, and
materials, and emphasized the fixed nature of the contract price, Findings 4, 7.
Even if the changes in security are deemed to be unforeseen, the risks are on the
contractor.  As the Federal Circuit has stated: “Because fixed-price contracts do not contain
a method for varying the price of the contract in the event of unforeseen circumstances, they
assign the risk to the contractor that the actual cost of performance will be higher than the
price of the contract.”  Dalton v. Cessna Aircraft Co., 98 F.3d 1298, 1305 (Fed. Cir. 1996). 
Using the guidance found in McNamara, the contractor assumed the entrepreneurial risk
associated with the conditions in Haiti.  “Plaintiff would convert this fixed-price contract into
a cost-plus contract and make the defendant an insurer upon the assumption that Congress
wanted the project so badly that it would pay any additional price.”  509 F.2d at 1171-72. 
For these reasons, while the contractor references its actual costs expended compared to the
contract price, the agency contract price estimate, and other proposed prices, those
comparisons are not material.  Had the contractor’s price better anticipated its actual costs,
it may not have received the award, or the agency may not have awarded a contract because

CBCA 1559 44
the contract would have been too costly or beyond its budget.  After the award of a fixed-
price contract, these circumstances do not permit reformation or a reallocation of risks or a
payment above the fixed price for contract performance.
Excusable Delay
The above conclusions do not resolve this dispute.  The contractor also seeks relief
under the contract because of excusable delays.  The contract expressly recognizes an
entitlement to additional time, not money, for excusable delay.  Acts of the United States
Government in either its sovereign or contractual capacity may constitute excusable delays. 
An excusable delay must arise from unforeseeable causes beyond the control and without the
fault or negligence of the contractor.  48 CFR 52.249-10 (2004); Finding 5.
As discussed above, the decline in security after award that affected performance
routinely was identified during the formation stage of the procurement as a concern and
potential challenge.  By itself, the actual change in the security situation, even with prolonged
periods of widespread and serious crime, does not here form a basis for excusable delay.  An
excusable delay must arise from unforeseeable causes.
Significantly, one element was added to the equation at the end of May 2005: the
Government-ordered departure of non-emergency personnel and dependents at the embassy. 
This was a Government act that did not directly apply to, but impacted, the contractor.  The
agency issued a Travel Warning that referenced the ordered departure, warned of continued
dangers, highlighted the volatile situation, and stated: “The Department of State warns U.S.
citizens to defer travel to Haiti and urges American citizens to depart the country if they can
do so safely.”  Finding 50.  As the agency points out, this quoted language does not differ
markedly on its face from the language issued in conjunction with the authorized departure
in effect during contract formation: “U.S. citizens in Haiti are urged to consider departing
until the situation is stabilized as travel in Haiti still involves serious risks.”  Finding 14. 
However, the difference between ordered and authorized departure indicates a Government
perception that the security situation is or readily can become more dangerous, perhaps
without further warning.  With an ordered departure in place, the Government benefits by
having fewer American citizens in the country should conditions deteriorate or deteriorate
further, particularly if an evacuation must occur.
It was not within the contractor’s control to put the embassy on ordered departure and
to urge the departure of American citizens at that time.  This Government action did not
occur in connection with the contract; it was an action outside of the control of the
contracting officer.  The contract does not explicitly require the contractor to continue

CBCA 1559 45
performance under such circumstances; the Excusable Delays clause explicitly recognizes
that circumstances may constitute an excusable delay.  The contractor acted reasonably under
the heightened security conditions in following the urging to depart while the embassy was
on ordered departure.  The test of legal impossibility to support an excusable delay does not
require a showing of actual or literal impossibility.  Because neither this contractor nor the
contracting officer would be aware of all of the bases underlying the change in status at the
embassy and the scope and duration of any particular perceived threats, it was commercially
impracticable to perform critical path work.  International Electronics Corp. v. United States,
646 F.2d 496, 510 (Ct. Cl. 1981).  The Board concludes that the ordered departure and
related urging of American citizens to depart constituted a basis for excusable delay under
the contract.
With a basis for excusable delay established, relief (time, not money) under the clause
requires that in each instance, the failure to perform must be beyond the control and without
the fault or negligence of the contractor, and the failure to perform furthermore (1) must be
one that the contractor could not have reasonably anticipated and taken adequate measures
to protect against, (2) cannot be overcome by reasonable efforts to reschedule the work, and
(3) directly and materially affects the date of final completion of the project.  Exhibit 1 at 31
(¶ F.9); Fraser Construction Co. v. United States, 384 F.3d 1354, 1361 (Fed. Cir. 2004).
Regarding the first element, particularly after the ordered departure in 2004, even if
the contractor reasonably could have anticipated another ordered departure at the embassy,
the contractor could not have taken measures to protect against the Government’s actions
coupled with the urged departure of American citizens.  Future conditions could change
rapidly; the Government would benefit by a reduced presence of American citizens.  As
found above, the contractor acted reasonably in departing while the embassy was on ordered
departure.  With the departure of various personnel, the contractor could not continue with
performance as reasonably planned, with its personnel overseeing performance.  The contract
does not require the contractor to have delegated performance to subcontractors or other non-
American citizens.
While some performance continued, work on the critical path ceased.  Reasonable
efforts to shorten a knowingly tight schedule on the critical path were not available.  Because
of this, the date of final completion was directly and materially affected.  The final two
elements of an excusable delay were satisfied.
The Board rejects the agency-suggested application of the War Risks clause, Finding
4, to limit its liability here at issue.  The clause, which applies to property loss, damage, or
destruction, does not come into play here, because such did not occur.  The express shift of

CBCA 1559 46
risks to the agency under the one clause, does not mean that the agency does not accept risks
for excusable delays and actual or constructive acceleration arising under other contract
provisions.  The contract places those risks on the agency.
The agency suggests that the contractor was compelled to complete performance by
the contractual completion date, during the period that the contracting officer had not
approved an excusable delay.  The agency relies upon the Disputes, Alternate I, clause, which
dictates that the contractor shall proceed diligently with performance pending final resolution
of any request for relief, claim, or appeal, and comply with any decision of the contracting
officer.  Finding 4.  The inclusion of the Disputes clause in the contract does not eliminate
the Excusable Delay clause from the contract; the agency included both clauses in the
contract.  Reading the contract as a whole, the clauses compel the contractor to proceed
diligently, but permit a later resolution regarding the existence, or not, of an excusable delay
and its length.  When an excusable delay is found under such circumstances, and one
ascertains the length of the delay, the next potential question to address is whether a
constructive acceleration arose from the compelled completion within the unlengthened
performance period.  This contractor has specifically raised the question of relief for an
excusable delay and constructive acceleration.
To resolve this matter, we must consider the length of the excusable delay.  The
contractor departed the site and ceased critical path work on June 1, 2005.  Finding 53.  At
the agency’s urging (by its discussion of default and liquidated damages, viewed by the
contractor as threats), the contractor returned to the site in phases.  By September 12, it was
at its pre-departure staffing level, with the addition of an individual to oversee security.  On
September 21, 2005, excavation on the critical path resumed.  Finding 68.  The contractor
claimed excusable delay of 111 days relating to the security situation (this roughly coincides
with the June 1 to September 21 period) and 26 days relating to its alleged differing site
condition.  Finding 68.  A contracting officer granted 143 days of excusable delay on
June 29, 2007, shortly before the initial contract completion date.  Finding 75.
The contractor has demonstrated that it is entitled to the 111 days of excusable delay
for the period it was not performing critical path work.  The contractor has not demonstrated
that it was entitled to 26 days of excusable delay relating to what the Board has found not to
have been a differing site condition.  Other delays arose during the performance period.  The
contractor has not demonstrated that it is entitled to more than the 143 days of excusable
delay granted by the contracting officer, or that its acceleration efforts arose from other than
those excusable delays arising from suspending operations for several months in 2005.  The
agency has not demonstrated that the contractor was not entitled to the days in the
modifications.  Norair Engineering Corp. v. United States, 666 F.2d 546, 548 (Ct. Cl. 1981)

CBCA 1559 47
(“We may not assume that the post hoc extension was some sort of gratuity; [the contractor]
presumably was granted it because it deserved it[.]”).
Excusable delay entitles the contractor to additional time, not money.  The contractor
received additional time for performance.  The contractor seeks additional money under the
theory of accelerated performance, said to have been required by the agency’s granting
additional time long after requested and long after various denials, and only a few days
before the unmodified contract completion date would arrive.
Acceleration Because of Excusable Delay
The belated recognition of the contractor’s entitlement to excusable delay raises the
possibility of the contractor’s recovery for costs incurred in accelerating performance.  To
recover the contractor must demonstrate that performance was accelerated.  The contractor’s
efforts, particularly with additional laborers (and more significantly, better-skilled laborers)
and supervisors, and the needed tools and equipment, accelerated performance.
The benefits of those efforts are not quantifiable exactly and the actual costs of only
the acceleration cannot be determined with precision.  It is true, as the agency points out, that
the contractor did not complete performance by the original completion date (unmodified by
the excusable delays) or by the modified completion date (as extended by excusable and other
delays and causes).  The contractor underestimated the availability and productivity of the
local work force, the length of time to complete performance under the given conditions, and,
more importantly, the security situation in Haiti, and the need for security and project
management.  However, with appropriate management and supervision and an expenditure
of dollars for additional personnel, tools, and equipment, the contractor performed more
readily.
The agency fails to acknowledge any liability for acceleration costs.  That position is
not supported by the record.  By denying the contractor’s excusable delay claim for months,
and granting it only a few days before the completion date, while liquidated damages loomed,
the agency impressed upon the contractor the need for completion with no extension due to
excusable delay.  The contractor acted accordingly in planning the remainder of performance. 
Ultimately, the contractor achieved substantial completion after the modified date.  However,
the contractor experienced much delay due to the security situation and, to a lesser extent,
the subsoils (a non-differing site condition), which impacted the benefits of acceleration
efforts.  As explained in the findings, the Board attributes 5% of the contractor’s acceleration
costs to having arisen from the excusable delays.

CBCA 1559 48
With this conclusion that the contractor is entitled to recover acceleration costs
incurred because of the delayed granting of time for excusable delays, each of the particular
costs elements can be examined.  The contractor seeks $34,848,562, to which it adds profit
of $3,177,848, for a total of $38,026,410, plus interest from July 28, 2008.  Exhibit 18980
at 51.  The specific elements of the claim are set out in Finding 79.
Item one: alleged differing site condition
The first item ($532,125) of the claim relates to what the contractor describes as its
differing site condition claim.  The Board has concluded that the record does not establish
the existence of a differing site condition.  Accordingly, these costs are not recoverable.
Item two: evacuation, remobilization, and security related costs
Under the second item ($967,408) of the claim the contractor seeks payment for costs
of evacuation, remobilization, and various security-related costs.  The Board has determined
that the evacuation and remobilization occurred because of an excusable delay.  Under the
clause, the contractor is entitled to a time extension (already granted by the agency) but not
compensation for its associated costs.  The record does not demonstrate that the contractor
incurred any particular security or other costs when it arrived back in Haiti, while an ordered
departure of personnel remained in place at the embassy, which would not have been
incurred with a later return.  Accordingly, despite the accelerated return of some individuals,
no costs are compensable.
Item three: time sensitive costs
In an expert report, the contractor describes the time sensitive costs as cost arising as
a result of security-related and differing site conditions.  These costs are detailed in the third
item ($2,159,807) of the claim:
JAJI is entitled to reimbursement for the time-related (i.e., fixed) costs which
were caused by delay on the Haitian Embassy Contract.  Because of the delay
experienced on the project, JAJI was forced to devote a portion of its
productive capacity (as measured by fixed costs) to the Haitian Embassy
Contract for a longer period of time than anticipated in the original contract or
than would otherwise have been necessary.
Exhibit 15201 at 234.

CBCA 1559 49
As defined by the contractor, these costs were not costs of acceleration.  Any
acceleration would reduce the period over which the contractor incurred the time-related
costs.  To the extent that costs were incurred because of an excusable delay (either during the
period of delay or the resulting extension), the costs cannot be reimbursed under the
Excusable Delay clause, which provides for time, not money, compensation.  No other
specific delays have been established for which the contractor remains to be compensated.
Item four: man camp costs
The contractor seeks to recover $12,091,187 of its man camp costs that it attributes
to the acceleration.  The Board concludes that the man camp was created because of the
security situation in Haiti.  Even if the agency had granted an excusable delay earlier, the
contractor still would have constructed the man camp and incurred many of the charges, and
received many of the credits.  Therefore, the contractor’s claimed costs of the man camp,
$17.3 million, less its installation and demobilization costs, $12.6 million, results in $4.7
million which can be apportioned based upon acceleration efforts. The Board has deemed 5%
of the expended acceleration costs to be the appropriate share to be paid to the contractor;
therefore, the contractor is entitled to $235,000.  In reaching this amount, the Board utilizes
the figures proposed by the contractor, aware that the agency disputes allocations for the
number of workers and meals used in the calculations.  The data provided and necessary
speculation makes such a refinement neither practical nor of significance.
Item five: craft labor and small tool costs
The contractor seeks to recover $7,579,332 for craft labor and small tools costs.  The
record does not explain the difference between this figure and the calculations in the
supporting documentation; some of the difference relates to a difference in the percentage
of acceleration costs, reduced to 72% in the final request for recovery.  The contractor seeks
relief for four categories of costs it attributes to acceleration: small tools, a wage uplift for
cleared United States workers, craft labor, and loss of productivity.
The contractor has not demonstrated entitlement to loss of productivity costs or the
wage uplift; neither cost has been shown to relate to constructive acceleration for a given
period of time. Therefore, the contractor not entitled to recover on the second or fourth
categories of these costs.  Of the other costs for craft labor and estimated tool costs, the
record reflects an expenditure of $7,075,252, to which the Board applies the 5% factor for
recovery.  The contractor is entitled to recover $353,763.

CBCA 1559 50
Item six: additional equipment and fuel, oil, and grease costs
Of the costs related to additional equipment (purchased and rented) and FOG costs,
the parties disagree on costs incurred by the contractor in renting equipment from a wholly-
owned subsidiary.  Regulation allows the rental costs of personal property leased from any
subsidiary of the contractor under common control, that has an established practice of leasing
the same or similar property to unaffiliated lessees.  48 CFR 31.205-36 (2004).  The
contractor sufficiently has established the practices of its subsidiary.  The regulation does not
require the leasing of identical equipment; the reasonableness of rates is to be considered
under the circumstances.
The contractor’s additional costs for rented and purchased (less salvage value)
equipment and FOG is $2.441 million.  Applying the 5% factor for costs attributable to the
acceleration caused by the agency’s untimely granting of an excusable delay results in the
contractor’s entitlement to $122,051.
Item seven: staff labor
The contractor seeks to recover $7,367,957 in staff labor costs.  The staff labor costs
of $5.9 million were affected by the delays during performance.  The contractor is entitled
to recover $293,068 (5% of the staff labor costs).  The record does not demonstrate that a
loss of productivity was attributable to the delayed granting of the excusable delay; therefore,
the contractor is not entitled to the $2.3 million it seeks under that category.  As with time
sensitive costs, the security/differing site condition labor costs are not recoverable, as these
have not been tied to the acceleration.  The additional compensation to hire and/or retain staff
became a cost of doing business.  The contractor is entitled to be reimbursed $15,888 for the
5% share of those costs of $317,757 incurred because of the agency-caused acceleration. 
These two figures sum to $308,956.  On that amount, the contractor is entitled to recover its
incurred travel and subsistence costs at the undisputed rate of 6.19%, or $19,124.  In total,
on this item, the contractor recovers $328,080.
Item eight: local labor lunches due to acceleration
The contractor incurred $1,003,483 in costs of providing lunches to local labor.  The
contractor seeks $722,508, which it attributes to its agency-caused acceleration efforts.  The
provision of lunches limited down time for workers and eased security concerns.  The Board
finds entitlement of $50,174, calculated using the 5% factor for agency responsibility arising
from the untimely granting of the excusable delay.

CBCA 1559 51
Item nine: OBO/CST/CAG overtime due to acceleration
The contractor incurred $163,860 in overtime costs for agency and other personnel
because of various delays.  Instead of the 72% factor used by the contractor in seeking
$117,979, the Board uses the 5% factor to find entitlement to $8,193.
Item ten: general and administrative costs
The parties have stipulated to a percentage rate to be applied to recovered costs that
represents recoverable general and administrative costs.  Exhibit 25920 at 4.  Applying that
percentage (4.68%), the contractor is entitled to recover $51,352 for these costs.
Item eleven: profit
The parties have stipulated to a percentage rate to be applied to recovered costs
(including general and administrative costs) that represents recoverable profit.  Exhibit 25920
at 4.  Applying that percentage (9.15%), the contractor is entitled to recover $105,098 as
profit.
In summary, the Board determines that the contractor is entitled to recover the
following costs:
$               0 additional earthworks subcontractor/geotechnical engineering
      0 evacuation, remobilization, and security change costs
                 0 time-sensitive costs
      235,000 man camp costs
      353,762 craft labor and small tools costs
      122,051 additional equipment and fuel, oil and grease costs
      328,080 staff labor costs
        50,174 local labor lunches due to acceleration
          8,193 OBO/CST/CAG overtime due to acceleration
   1,097,260 SUBTOTAL
        51,352 general and administrative costs
     105,098 profit
 $1,253,710 TOTAL

CBCA 1559 52
Decision
The Board GRANTS IN PART this appeal, concluding that the contractor is entitled
to recover $1,253,710, plus interest pursuant to statute, calculated from July 28, 2008.
______________________________
JOSEPH A. VERGILIO
Board Judge
We concur:
________________________ ________________________
STEPHEN M. DANIELS JEROME M. DRUMMOND
Board Judge Board Judge