MOTION FOR RECONSIDERATION DENIED: June 2, 2011 
CBCA 1460 
WALSH/DAVIS JOINT VENTURE, 
Appellant, 
v. 
GENERAL SERVICES ADMINISTRATION, 
Respondent. 
Edward J. Sheats, Jr., and Jason B. Bailey of Sheats & Associates, P.C., Brewerton, 
NY, counsel for Appellant. 
Dalton F. Phillips, Leigh Erin S. Izzo, and Heather Cameron, Office of General 
Counsel, General Services Administration, Washington, DC, counsel for Respondent. 
Before Board Judges DANIELS (Chairman), STERN , and HYATT . 
DANIELS , Board Judge. 
The General Services Administration (GSA), respondent, moves the Board to 
reconsider its decision on the claim made by Walsh/Davis Joint Venture (WDJV), appellant, 
on behalf of its subcontractor Global Precast, Inc. (Global). See Walsh/Davis Joint Venture 
v. General Services Administration , CBCA 1460 (Apr. 13, 2011). GSA maintains that the 
Board should reconsider because it “made several reversible errors in its statement or 
construction of the facts upon which it based its decision.” We deny the motion. 

 
            
               
           
            
             
            
            
           
              
               
  
            
         
              
            
              
          
            
          
    
            
              
             
              
               
              
   
            
             
               
               
         
         
2 CBCA 1460 
As WDJV notes, the motion essentially re-argues points which GSA made in briefing 
this matter before we issued our decision. As provided in Board Rule 26(a), 48 CFR 
6101.26(a) (2010), “Arguments already made and reinterpretations of old evidence are not 
sufficient grounds for granting reconsideration, for altering or amending a decision, or for 
granting a new hearing.”  We do comment on some of the principal objections made by the 
agency to our decision, however, to correct misimpressions on which the motion is based. 
The contract in question was for construction of a complex of buildings in 
Washington, D.C., to be occupied by the Department of Justice’s Bureau of Alcohol, 
Tobacco, Firearms and Explosives. Global was the subcontractor which provided precast 
concrete for the facing of various structures within the complex. Global’s claim was for 
equitable adjustments to the contract price on two distinct aspects of the panels, the face mix 
and the finish. 
With regard to the face mix, GSA maintains that the Board incorrectly identified the 
contract’s specification for precast concrete as a design specification; the specification was 
actually a performance specification, the agency says. The parties spent many pages of their 
posthearing briefs arguing which variety of specification was involved here. The distinction 
between the two has been established by the Court of Appeals for the Federal Circuit: 
Performance specifications set forth an objective or standard to be achieved, 
and the successful bidder is expected to exercise his ingenuity in achieving that 
objective or standard of performance, selecting the means and assuming a 
corresponding responsibility for that selection.  Design specifications, on the 
other hand, describe in precise detail the materials to be employed and the 
manner in which the work is to be performed. The contractor has no discretion 
to deviate from the specifications, but is required to follow them as a road 
map. 
P.R. Burke Corp. v. United States , 277 F.3d 1346, 1357 (Fed. Cir. 2002) (citing Blake 
Construction Co. v. United States , 987 F.2d 743, 745 (Fed. Cir. 1993), which quoted J. L. 
Simmons Co. v. United States , 412 F.2d 1360, 1362 (Ct. Cl. 1969) (internal quotation marks, 
emphasis, and ellipsis omitted)). 
As the Court of Appeals has recognized, however, “the distinction between design and 
performance specifications is not absolute . . . . Government contracts not uncommonly 
contain both design and performance specifications.” Blake , 987 F.2d at 746. As to precast 
concrete, the contract at issue here was one of those “not uncommon” contracts. Where the 
contract required WDJV to “[p]rovide assemblies complying with performance requirements 
indicated and capable of withstanding structural movement, thermally induced movement, 

 
              
             
 
              
             
            
            
                
       
             
             
              
              
               
                
           
           
    
               
           
             
                
              
   
               
              
             
               
               
              
              
               
               
               
             
              
              
3 CBCA 1460 
and exposure to weather without failure or infiltration of water into the building interior,” it 
was clearly stating a performance specification. Where the document told the contractor, on 
the other hand, to “[u]se the following cementitious materials, of the same type, brand, and 
source, throughout Project: 1. Portland Cement: ASTM C 150, Type I III, white,” it was 
prescribing a design specification. The requirement upon which the face mix dispute focused 
was an architect’s subjective preference, which shifted over time and was expressed in 
equivocal terms. Whether this requirement should be called a performance or design 
specification does not help to resolve this case. For that reason, we avoided both labels and 
see no need to alter that practice now. 
GSA has other misapprehensions about our analysis of the face mix aspect of the 
claim as well. It is true, as the agency notes and we found, that the contract did not provide 
that Indiana Limestone standard gray would be the color of the precast, and the architect, 
Moshe Safdie Associates (MSA), did not provide a sample of that material until after the 
contract was awarded. This does not mean, however, that Global’s price to WDJV for the 
precast work could not have been based on a standard mix. We found, based on the 
testimony of Global’s Donny DiVincentiis, that Global’s price was based on manufacturing 
a standard gray concrete, which is industry standard, using Dufferin limestone, universal 
concrete, sand, and white cement. 
It is also true, as the agency notes, that MSA did not ever specifically request that 
Global use more expensive materials than the ones it expected to use.  This does not mean, 
however, that the architect’s directions were not the cause of the company’s decision to 
substitute materials. As we found, the only way for Global to make panels that met the 
architect’s desires was to use the more expensive ingredients. We found fault with the 
architect’s analysis in two significant regards.  First, the contract allowed MSA to vary one 
of the ingredients of the precast – pigment – but the architect insisted on rejecting samples 
whose color he found “very good,” thereby altering the contents of the panels for reasons 
other than pigment. Second, MSA’s criticism of various samples for having excessive black 
(or gray) flecks could have been applied to virtually any panels, since all concrete panels are 
made from natural materials. We did not conclude, as GSA believes, that the early G514 
sample “was essentially uniform in color when viewed from a distance.” Instead, we found 
that “a precast panel may appear to have black flecks when viewed close-up, but essentially 
uniform color when viewed from a distance.” Even the sample provided by MSA (as well 
as the G688 sample, which GSA seems to consider the base from which any cost comparison 
should be made) could be so characterized. We therefore found no sound basis for believing 
that this criticism should have been a valid reason for rejecting the G514 sample. 
With regard to the finish aspect of the claim, GSA persists in believing that the 
agency’s architect, acting on its behalf, did not direct that the garden wall be acid-etched. 

 
             
             
           
                 
              
              
               
             
          
               
               
 
                 
              
            
              
             
               
             
              
                 
              
                 
             
              
                
              
               
              
             
              
            
            
           
          
             
                 
    
4 CBCA 1460 
MSA simply chose an acid-etched sample from among four offered as alternatives by Global, 
the agency maintains. The architect made this choice, GSA says, because MSA’s Rainer 
Goeller, who visited Global’s manufacturing facility, did not believe that Global’s smooth 
form finish was acceptable. As we explained in our decision, we found the facts to be quite 
different from those preferred by the agency. MSA asked Global for samples with four 
different finishes. The architect selected the acid-etched finish for the garden wall and gave 
a specific direction that it be used. We discounted Mr. Goeller’s opinion as to the 
acceptability of the smooth form finish because it was based not on the contract 
specifications, but rather, on his desires, which were far more exacting. 
GSA also reargues the issue of prejudice from the fact that Global and WDJV took 
seven months to respond to the inquiry as to whether giving the garden wall an acid-etched, 
rather than smooth form, finish would increase manufacturing costs.  The agency asks why 
it would have made the request if it did not want the option “to insist that the contractor 
honor its Contract.” The agency also insists that WDJV’s certified pay application submitted 
most recently before WDJV did respond demonstrated that Global had already produced a 
significant portion of the acid-etched precast by the time the response was made. 
Our decision explains why we rejected GSA’s position on this matter. The agency’s 
question is misstated. By the time GSA asked for information as to increased costs, MSA, 
speaking for the agency, had already directed a change in the specifications, making the 
finish of the garden wall acid-etched, rather than smooth form. Thus, the question should 
have been, why would the agency have made the request if it did not want the option to 
countermand the architect’s order? We concluded that in light of the vast discretion GSA 
gave MSA to dictate the look of the precast panels, and the absence of any evidence that the 
agency might have considered withdrawing this discretion, there is no reason to believe that 
cost could have caused such a withdrawal. The agency’s belief that Global had produced 
large numbers of panels before it responded to the inquiry about costs is not justified by the 
documentation to which the agency points. GSA directs our attention to a bill of sale from 
Global to WDJV, which is contained within the pay application. The bill of sale shows 
“precast components” for various portions of the project. With the bill, Global warrants that 
“the property has been purchased and/or manufactured for the specific purpose of being used 
in construction of the Project.” Global gives WDJV “equitable and legal title to the 
Property” and allows WDJV “to take physical possession of the Property” under certain 
circumstances. Nowhere in this document does Global state that panels have been 
manufactured. The document says only that “precast components” had been purchased; 
whether those components were materials with which to make panels or panels which have 
been made is not specified. Testimony by Global’s Mr. DiVincentiis and business records 
presented by him – both of which we found persuasive – led us to a conclusion that the 
former alternative was vastly predominant. 

 
     
  
 
 
    
  
5 CBCA 1460 
Decision
 
The MOTION FOR RECONSIDERATION is DENIED .
 
_________________________ 
STEPHEN M. DANIELS 
Board Judge 
We concur: 
_________________________ _________________________ 
JAMES L. STERN CATHERINE B. HYATT 
Board Judge Board Judge