GRANTED IN PART: January 26, 2015
CBCA 3724
LEEWARD CONSTRUCTION CORPORATION,
Appellant,
v.
DEPARTMENT OF VETERANS AFFAIRS,
Respondent.
Donald R. Adams, Project Manager of Leeward Construction Corporation, Fort
Worth, TX, appearing for Appellant.
Lindsay C. Roop and Dennis M. McGuire, Office of Regional Counsel, Department
of Veterans Affairs, Columbus, OH, counsel for Respondent.
Before Board Judges POLLACK, McCANN, and ZISCHKAU.
McCANN, Board Judge.
Appellant, Leeward Construction Corporation (Leeward), seeks recovery for
additional contract work performed at the Department of Veterans Affairs (VA) Medical
Center (VAMC) in Dayton, Ohio.  Both entitlement and quantum are in issue. The parties
have submitted the case for decision on the written record pursuant to Board Rule 19.
Facts
1.  On April 6, 2012, the VA posted an invitation for bids (IFB) for construction work
for the relocation of the oncology department at the VAMC in Dayton, Ohio.  The
specifications included a description of the work as follows:

CBCA 3724 2
Contractor shall completely prepare site for building operations, including
demolition and removal of existing items, and furnish labor and materials and
perform work for project 552-11-109, entitled Dayton VAMC-Relocate
Oncology as required by drawings and specifications. 
2.  The specifications contain a section on asbestos abatement entitled:
Section 02 82 13.19
ASBESTOS FLOOR TILE AND MASTIC ABATEMENT
(PROVIDED BY VAMC)
TABLE OF CONTENTS
This asbestos abatement specification states: 
1.1 SUMMARY OF THE WORK
1.1.1 CONTRACT DOCUMENTS AND RELATED REQUIREMENTS 
Drawings, general provisions of the contract . . . shall apply to the work of this
section. . . . In the event the Asbestos Abatement Contractor (Contractor)
discovers a conflict in the contract documents and/or requirements or codes,
the conflict must be brought to the immediate attention of the Contracting
Officer for resolution.  Whenever there is a conflict or overlap in the
requirements, the most stringent shall apply.  Any actions taken by the
Contractor without obtaining guidance from the Contracting Officer shall
become the sole risk and responsibility of the Contractor.  All costs incurred
due to such action are also the responsibility of the Contractor. 
. . . .
1.1.5 ABATEMENT CONTRACTOR USE OF PREMISES
A. The Contractor and Contractor’s personnel shall cooperate fully with the
VA representative/consultant to facilitate efficient use of buildings and areas
within buildings.  The Contractor shall perform the work in accordance with
the VA specifications, phasing plan and in compliance with any/all applicable
Federal, State and Local regulations and requirements. 
. . . .

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1.5.2 CONTRACTOR RESPONSIBILITY
The contractor shall assume full responsibility and liability for compliance
with all applicable Federal, State and Local regulations related to any and all
aspects of the abatement project.  The Contractor is responsible for providing
and maintaining training, accreditations, medical exams, medical records,
personal protective equipment as required . . . . The Contractor shall incur all
costs of the Contractor Provided Industrial Hygienist (CPIH), including all
sampling/analytical costs to assure compliance with OSHA/EPA/state
requirements.    
3.  The solicitation incorporated a complete set of drawings which includes Drawing
310-A2, entitled PARTIAL FIRST FLOOR DEMOLITION PLAN (BLDG. 310 -
VACATED ONCOLOGY).  The general demolition notes on the drawing state:  “Contractor
shall coordinate demolition with owner; salvage and turn over to COTR [contracting officer’s
technical representative] doors, toilet accessories, curtain tracks, light fixtures and other
items designated by owner.”  The drawing includes a demolition legend that states, inter alia:
“[R]emove existing flooring and adhesive down to existing concrete slab.”   Part of the
drawing is unshaded and set off with a dotted line, and part of it is shaded.  At the bottom of
the legend there is a small, unshaded, dotted-line rectangle.  Next to it is a note that states: 
“Asbestos floor tile and asbestos abatement occurs at this area designated for abatement.” 
Another shaded rectangle of the same size is located under the dotted line rectangle.  Next
to it is a note indicating: “Denotes area outside scope of work.” 
4.  On April 26, 2012, the VA held a site visit for all potential bidders.  The VA
received questions at the site visit, and on May 7, 2012, the VA posted the following
questions and answers as an amendment to the solicitation: 
Question:  All abatement is by the owner, correct?
Answer: Per the contract documents.
Question: All floors on 1st floor are to be abated by owner.  All floors on
4th floor are to be removed by contractor as normal construction
debris.
Answer: Per contract documents, if any additional hazardous materials
are present on the project refer to Section 02 82 13.19. 
Normally construction debris are to be in covered carts, using
the service elevators to the loading docks as discussed at the
walk thru. 

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5.  Leeward was the low bidder and was awarded contract VA250-12-C-0054 on   
June 11, 2012, in the amount of $1,384,777.
6.  After award and during discussions about mobilization, Leeward informed the VA
that it did not believe the contract required it to perform the asbestos abatement contained
in the asbestos abatement section of the contract.  On July 28, 2012, Leeward issued a request
for information (RFI) to the VA about its responsibilities for asbestos abatement.  Leeward
stated in the RFI:
Specification Section No. 02 82 13.19 Asbestos Floor Tile and Mastic
Abatement is included within the bound set of specifications.  However, the
table of contents (ref: page 00 01 10 - 1 of the Project Manual) add the note
“(Provided by VAMC)”.  A request for clarification was submitted during the
pre-proposal stage of the project but the VA response (see Mod. P00003
Questions and Answers no 16) was “Per contract documents.” 
In a conversation with the COTR, he advised that Asbestos Abatement is the
responsibility of the Contractor.  Since that directive is in direct opposition to
the “(Provided by VAMC)” NOTE IN THE WRITTEN DOCUMENTATION,
Leeward requests the CO [contracting officer] to interpret the documents and
provide the appropriate directive to resolve this contradiction.
Leeward presumes the written documentation will take precedence over the
COTR’s advisement.
Potential Impact to Cost and Time of Completion: Possible; depends on
resolution.
7.  On January 29, 2013, Leeward submitted a request for a change order for the
asbestos abatement work.  In that change order request, Leeward provided an estimate of
$13,691 (not including the services of a contractor-provided industrial hygienist) to perform
the work. 
8.  On January 31, 2013, Leeward contracted with Ohio Technical Services to perform
the asbestos abatement work in the amount of $11,315 (not including the cost of an industrial
hygienist). After various adjustments, the final price of the subcontract came to $13,286.25. 
The asbestos abatement work was performed from August 5 through August 7, 2013.
9.  The CO denied Leeward’s request for an equitable adjustment to the contract on
February 28, 2013. 

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10.  On September 30, 2013, Leeward submitted a formal claim under the Contract
Disputes Act, 41 U.S.C. 7101-7109 (2012) (CDA), for asbestos abatement in the amount of
$58,073.  The CO issued his final decision denying the claim on January 28, 2014. 
Subsequently, Leeward revised the amount of its claim downward to $45,147.75. 
11.  The breakdown of Leeward’s claim is as follows:
Base Subcontract - Ohio Technical Services $13,286.25
Superintendent Time,  June - August 2013 $12,153.00
Project Manager Time, June - August 2013 $ 4,441.00
Claim Documentation and Defending  $ 7,182.00
Overhead, Fee, Performance and Payment Bond $ 8,085.47
Total $45,147.75
12.  The record contains an invoice from Leeward’s subcontractor, Ohio Technical
Services, dated September 3, 2013, in the amount of $13,286.25.  The VA does not dispute
that this is the amount that was paid for the subcontract work, and agrees that the amount is
reasonable. 
13.  Leeward claims that its superintendent spent 277 hours on this project from the
week ending June 7, 2013, to the week ending August 10, 2013, doing work that was caused
by the addition of the abatement work.  As support, Leeward has submitted unsigned daily
logs with the typed name of the superintendent shown, indicating that he was the person who
completed the log.  The daily logs indicate that the superintendent was on site, but do not
show how long he was on site or on what projects he was working.  The logs do not show 
that he was performing work caused by the addition of the abatement work.  
14.  Leeward claims that the project manager spent 69.25 hours from the week ending
June 7, 2013, to the week ending August 10, 2013, doing work that was caused by the
addition of the abatement work.  It contends that this time was spent: 1) finding an asbestos
subcontractor; 2) negotiating and writing the subcontract; 3) receiving, reviewing, modifying,
and submitting, submitals to the VA; 4) finding and hiring an industrial hygienist; and 5)
scheduling the asbestos work.  It further contends that this work was in addition to the work
a project manager would ordinarily do to accommodate such additional work.  There is no
documentary or testimonial evidence in the record that supports the claim that the project

CBCA 3724 6
manager spent this time on these tasks, or that the project manager spent any time on these
tasks over and above what he ordinarily would have spent on such additional work. 
15.  With regard to the documentation and defense of its claim, Leeward estimates that
the project manager spent an additional 112 hours.  Leeward points to nothing in the record
to support this.  This alleged effort was expended for the preparation and defense of
Leeward’s Contract Disputes Act claim. 
16.  Leeward contends that both project overhead in the amount of ten percent and a
fee or profit of ten percent are reasonable and customary.  Finally, it contends that it is
obligated to pay for payment and performance bonding for the full contract price, and that
recovery for this is both reasonable and customary. 
Discussion
Entitlement
 The focus of the dispute in this case is the meaning of the phrase “(PROVIDED BY
VAMC)” in the title to the asbestos abatement section.  In the absence of this phrase, the
contract would certainly require the contractor to perform the asbestos abatement work, as
the specification is replete with references to the contractor performing the work.  With this
phrase included, however, the specification becomes far less clear about which party is to
perform this work.   
Leeward argues that, because of the phrase, the contract unambiguously places
responsibility for the asbestos abatement on the VA.  It further contends that the VA
confirmed this interpretation at the bidders site visit when the VA twice responded, “Per
contract documents,” to questions about which party was to perform the abatement work, and
then amended the solicitation to include the questions and answers. 
Regardless of this phrase and despite the VA’s responses to questions at the bidders
conference, the VA maintains that the contract, read as a whole, unambiguously requires
Leeward to perform the abatement work.   The VA contends that the phrase simply means
that the VA “provided the specification.”  It further argues that, at best, the specification and
drawings are ambiguous, and since Leeward did not make the specific inquiry, Leeward must
absorb the costs of performance.  
The VA cites to various sections of the specification that it contends support its
position that the contractor was to perform the work.  There is no need to discuss those
sections, as it is quite clear that there are many references in the contract to performance of

CBCA 3724 7
the work by the contractor.  Certainly, in the absence of the phrase “(PROVIDED BY
VAMC),” the contract would require performance by the contractor.  The phrase, however,
was included in the contract, and the question is how to interpret the contract with the phrase
included, and in light of the agency’s response to the bidders’ questions. 
The VA posits that the phrase was intentionally included in the contract to indicate
to bidders that the agency “provided the specification.”  This interpretation is not reasonable. 
Such an interpretation begs the following questions:  “Provided to whom and for what
purpose?”  “Why would the VA put such a phrase in the abatement section and no other
sections?”  “What importance would it be to bidders to know that the VA was providing the
specification?”  In addition, such an interpretation renders the phrase “(PROVIDED BY
VAMC)” superfluous to the abatement work.
A contract is to be construed in a manner that gives meaning to all of its provisions,
if possible.  First Nationwide Bank v. United States, 431 F.3d 1342, 1347 (Fed. Cir. 2005)
(citing Hol-Gar Manufacturing Corp. v. United States, 351 F.2d 972, 979 (Ct. Cl. 1965)
(“[A]n interpretation which gives a reasonable meaning to all parts of an instrument will be
preferred to one which leaves a portion of it useless, inexplicable, inoperative, void,
insignificant, meaningless or superfluous.”).  The phrase is obviously inconsistent with the
rest of the specification that calls for the contractor to perform the abatement.  The contract
cannot be interpreted unambiguously, giving meaning to all sections, with this phrase
included.  The contract is patently ambiguous and the contractor did have an obligation to
inquire. Gulf Shores, LLC v. Department of Homeland Security, CBCA 802, 09-1 BCA
¶ 34,024, at 168,306 (2008).  Unfortunately for the VA and contrary to its assertion, bidders 
did inquire.  In its response and solicitation amendment, the VA chose not to resolve this
obvious ambiguity.1
Seemingly, the VA contends that the actual winner of the contract, as opposed to any
bidder, must do the inquiring,.  If that were true, there would be no purpose in disseminating
the questions and answers to all bidders and to incorporating the questions and answers into
the solicitation.   Mandating that only the winning bidder’s inquiry is relevant makes little
sense.  That would necessitate that all bidders ask the same question at the bidders
conference to protect themselves, as no one would know at that point who the winning bidder
would be.  The law does not demand that the specific winner of the contract make inquiry. 
1  The only way that meaning can be given to all parts of the contract is to interpret the
statement “the Asbestos Abatement Contractor (Contractor),” in section 1.1.1 of the
specification to mean a contractor other than Leeward that will be “provided by the VAMC.” 
Such an interpretation would lead to the same ultimate result.  The VA would be responsible
for covering the cost of asbestos abatement. 

CBCA 3724 8
It only requires that inquiry be made and the response promulgated.  That was done in this
case.
Obviously, bidders did find the contract language ambiguous enough to request that
the VA confirm that it was responsible for performing the asbestos abatement.  Instead of
clarifying the situation, the VA on two occasions simply stated “Per the specifications.”  The
VA had the opportunity and the responsibility to clarify an ambiguous specification and it
chose not to do so.   Under these circumstances, the only rational conclusion that a reasonable
bidder could draw would be that the VA would perform the work.  To conclude otherwise
would put bidders at risk of losing the award to a bidder who did so conclude.  
Leeward is entitled to recovery for its costs plus overhead and a reasonable profit for
the work at issue.
Quantum
Leeward is entitled to recover some of the amounts claimed.  Leeward may recover
the entire subcontract price of $13,286.25, as it is clear that this was a cost reasonably
incurred to accomplish the work.  
The alleged time expended by the superintendent and the project manager is not
recoverable.  Their time is compensated for in the recovery of additional overhead.2  In any
event, the record does not support that the hours claimed for these two employees was
actually expended, or was expended on asbestos abatement work, or was expended in
addition to work that what would ordinarily be performed.  
The claimed $7182 for claim documentation and defense also fails.  The claimed costs
of preparing and prosecuting a CDA claim are not recoverable under the circumstances
presented here. “[I]f a contractor’s underlying purpose for incurring a cost is to promote the
prosecution of a CDA claim against the Government, then such cost is unallowable under
FAR 31.205-33 [48 CFR 31.205-33(2011)].”  Tip Top Construction, Inc. v. Donahoe, 695
F.3d 1276, 1284 (Fed. Cir. 2012) (quoting Bill Strong Enterprises, Inc. v. Shannon, 49 F.3d
1541, 1550 (Fed. Cir. 1995)).  To the extent that any of this claim relates to the project
manager negotiating an equitable adjustment instead of his promoting the prosecution of a
CDA claim, it is still not recoverable, as there is no support in the record that any additional
work was performed. 
2 Leeward tells us that its  “Project Managers . . . do not log hours by task to each
project.”  We see no evidence that the superintendent’s hours were logged by task to each
project.  

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Leeward is entitled to an additional ten percent for overhead and also ten percent for
profit. Department of Veterans Affairs Acquisition Regulation (VAAR) 852.236-88(b)(10)
(48 CFR 852.236-88 (b)(10)).  Leeward is entitled to recovery for any increase in bonding
costs.  Such recovery shall be made at “final settlement under the contract and will not be
included in the individual change.”  VAAR 852.236-88(b)(11).
Decision
The appeal is GRANTED IN PART to the extent indicated.
______________________________  
R. ANTHONY McCANN
Board Judge
We concur:
________________________________ _______________________________
HOWARD A. POLLACK JONATHAN D. ZISCHKAU
Board Judge Board Judge