GRANTED IN PART:  June 29, 2023
CBCA 7472
GC WORKS, INC.,
Appellant,
v.
DEPARTMENT OF AGRICULTURE,
Respondent.
Diana Lyn Curtis McGraw and Nicholas T. Solosky of Fox Rothschild LLP,
Washington, DC, counsel for Appellant.
Mark R. Simpson, Office of the General Counsel, Department of Agriculture, Atlanta,
GA, counsel for Respondent.
VERGILIO, Board Judge.
GC Works, Inc. (contractor) disputes a decision by a contracting officer for the
Department of Agriculture (agency) denying relief (both money and time) for an alleged
changed condition arising under a contract between the parties.  The contractor now contends
that changed conditions resulted in eighteen days of compensable delay as it seeks
$15,191.26, also relying upon theories of breach.
The contractor has elected the small claims procedure, such that this decision by one
judge is final, conclusive, and non-precedential, and may be set aside only in cases of fraud. 
41 U.S.C. § 7106(b) (2018); 48 CFR 6101.52 (2022).  The Board grants in part the claim,
concluding that the changed conditions were more modest than the contractor claims, and
that the contractor is responsible for a period of delay which makes most of the sought costs
non-compensable.  The contractor is to recover $5000, plus interest.


CBCA 7472 2
Findings of Fact
Under pertinent aspects of the design-build contract, the contractor was responsible
for providing and installing a new gate assembly (a sluice gate) for outlet control of a dam
spillway.  The contract contains Federal Acquisition Regulation (FAR) clauses concerning
time extensions, changes, and disputes.  48 CFR 52.211-13, .243-4, .243-5, .333-1 (2021)
(FAR 52.211-13 (SEP 2020), 52.243-4 (JUN 2007), 52.243-5 (APR 1984), 52.243-5
(JAN 2017), 52.333-1 (MAY 2014)).  The agency provided a conceptual design for a new
gate assembly and design documents of the existing gate assembly.  The contractor was
required to and did submit manufacturer’s details of all new components for agency review
and approval.
The existing gate was submerged.  The new gate was designed with holes to match
those in the agency-provided drawings of the existing gate assembly and frame, which
depicted bolt locations and 5/8-inch threaded rods or bolts.  In the contract, the contractor
allocated time and attributed costs to cut the existing bolts in the concrete frame, drill out the
bolts, grout and epoxy those holes and cracks, and install (drill and epoxy) new bolts in the
frame for the gate.  The contractor produced a new gate complying with the drawings.
Shortly before installation, water was drained sufficiently to permit removal of the old
and installation of the new gate.  On March 11, 2022, with the old gate and frame exposed,
the contractor recognized, and shortly informed the agency, that the existing conditions did
not match the drawings—the bolts (in the frame) and corresponding bolt holes (in the gate)
were not at the locations depicted in the design documents for the existing gate assembly. 
Specifics (in terms of numbers and actual locations, except for one bolt) have not been
provided.  Further, 1/2-inch (not 5/8-inch) bolts were used in the existing structure.
The agency recognized a variation, as reflected in its March 11, 2022, issuance of a
notice of noncompliance that specified that the new gate frame holes do not match up with
the existing holes.  Because the holes are placed in accordance with the agency-provided
drawings, the locations of the bolts in the existing frame varied from those depicted.  The
Board finds that the actual conditions differed from the drawings.
On March 12, 2022, the contractor expressed its concerns to the agency regarding the
notice of noncompliance; the contractor specified that no deviation from the plans had
occurred.  On March 13, the contractor referenced the changed condition, resulting from
inaccurate as-built drawings, and considered the way forward as a minor field modification
to accommodate existing conditions; new holes would be drilled.  On March 15, the
contractor proposed a solution that involved cutting the old bolts and field drilling and
securing 1/2-inch bolts in the concrete frame to match the holes in the new gate.  The agency
expressed concern with the proposed bolt size, which varied from the 5/8-inch bolts noted

CBCA 7472 3
in the drawings and the approved submissions for the new gate.  As relayed to the agency on
March 17, and further confirmed thereafter, the contractor obtained engineer support for the
use of 5/8-inch (and disapproval of its proposed 1/2-inch) bolts, with the need to ensure that
the concrete and epoxy were sufficient to hold the bolts.  In this period, the contractor
provided the agency with assurances that the required anchor bolts came with the gate
assembly—as they were always part of the assembly.  The agency approved this solution on
March 22, noting that the contractor would need to ensure the adequacy of concrete at the
drilling sites.  After rain and rising water levels, with work not possible for several days
beginning March 23, the gate was installed on March 28–29, 2022.
In numerous claims or requests for relief, the contractor has put forward varying dates
of actions, dollar figures, and accountings of time.  These variations highlight a problem with
the credibility of the contractor’s information.  As of May 17, 2022, the contractor sought six
days of compensable delay and $5518.43 in the initial claim to the contracting officer.  As
of May 24, 2022, the contractor claimed nine days of delay (although the contractor again
states that three days were occupied with miscellaneous activities, and the same time period
is identified as in the May 17 claim) and $9743.02.  As of January 23, 2023, the contractor
sought eleven days of delay and $23,108.85.  In its most recent submission, the contractor
identifies eighteen days of delay and seeks $15,191.26.
At best, if the frame and gate had been as depicted in the agency’s design documents,
the contractor could have removed the existing and installed the new bolts on March 12 (a
Saturday), allowed the epoxy to cure, and completed the installation on March 14.  Had the
contractor not proposed a change from the contract in bolt size, the agency could have
recognized the changed conditions of the bolt locations by March 17, such that bolt
installation could have occurred on March 18, and the gate would have been installed on
March 19 or 21.  This reflects a delay of five or seven days.  However, the contractor
indicated in the initial claim that it performed some contract work for three days during this
period.  The contractor, who bears the burden of proof, has not demonstrated that March 19
would not have been a work day.  The record now supports the conclusion that the contractor
incurred costs and mark-ups of $5000, which would not have been incurred but for the
changed conditions over five days, reduced by an amount for the period the contractor said
it was able to continue with some performance.  This amount reflects costs for labor, general
requirements, equipment, and mark-ups but excludes other costs the contractor incurred
because of its own proposed variation in the bolt size, a proposal rejected by the agency and
not supported by the gate manufacturer.
Although the contractor proposes a finding of fact that it intended to utilize the
existing anchor bolts attached to the concrete structure, its reference and the record do not
support the assertion.  Rather, the contractor was required to remove the existing anchor bolts
and install new stainless steel bolts which came with the new gate.  The contract contains

CBCA 7472 4
pricing reflective of such efforts.  The contractor’s asserted intent—seemingly unstated and
inconsistent with the contract terms—does not provide a proper basis for relief.
Discussion
The contractor seeks relief based upon its assertions that it is entitled to payment (1)
because of the changed condition; (2) the agency breached the contract by not compensating
the contractor under the Changes clause; and (3) the agency breached the contract and
violated the Prompt Payment Act when the agency failed to pay all amounts due and owing
under the contract.
The latter two bases readily are denied.  Under the Changes and the Changes and
Changed Conditions clauses, the contractor may seek and obtain relief.  The agency did not
breach the contract when it denied the claim and payment as it concluded that the requested
relief was not warranted.  This denial created a dispute under the contract.  Because the
contract provides a mechanism for relief, the contractor has not established a breach that
would suggest relief apart from the provisions of the contract.
Under the Changes and Changed Conditions clause, the contracting officer shall make
an equitable adjustment if latent physical conditions differ materially from those indicated
in the contract and the conditions increase or decrease the costs of, or time required for,
performing the work.  Relief is predicated upon conditions that “differ materially”
—suggesting that every variation might not qualify for relief; e.g., if the variation is not
material.  For example, the bolt size variation here, the actual 1/2-inch bolt in the concrete
frame compared to the depicted 5/8-inch bolt in the diagram, has not been shown to be
material because the contractor was to remove the existing bolts and replace them with 5/8-
inch bolts.  The contractor would need to ensure the suitability of the concrete for the new
bolts, at the existing or a different location.  The contractor has not identified an increase in
particular extra work or expense, if any, that would be associated with the change of
locations.
What is material here is the recognition that the bolts were in a different location, as
it required a pause and determinations by the contractor and agency.  The agency is
misguided when it suggests that the notice of non-conformance indicates a contractor error. 
The new gate was designed according to the diagrams the agency provided with the contract. 
What was non-conforming was the existing frame and gate.  The initial “fault” rested with
the agency, not the contractor.  The variation qualified as a change under the contract.
In response to the variation in bolt locations, the contractor attempted to change the
bolt size.  That was not caused by the variation or the agency.  That proposed change was
inconsistent with the contract, the engineering support of the gate manufacturer, and the bolts

CBCA 7472 5
provided with the gate.  Similarly, the contractor’s suggestion that it intended to utilize the
existing bolts may be correct but that intent is inconsistent with the contract requirements and
pricing and the gate manufacturer’s inclusion of new bolts to be installed.
Appropriately, the agency rejected the contractor’s proposed change.  It took time on
the part of the agency and the contractor to sort out that the smaller bolts were not acceptable. 
Performance would have moved forward, and been completed, before rain delays had the
contractor not proposed the variation.
As found, the changed conditions were material to the extent of several days.  The
compensable delays resulted in added costs to the contractor of $5000.  The contractor is to
recover this amount.
Decision
The Board GRANTS IN PART the appeal.  The agency is to pay the contractor
$5000, plus interest pursuant to the Contract Disputes Act, 41 U.S.C. § 7109, calculated from
May 17, 2022, the date the contracting officer received the claim, until paid.
     Joseph A. Vergilio          
JOSEPH A. VERGILIO
Board Judge