APPELLANT’S MOTION FOR SUMMARY RELIEF GRANTED IN PART;
RESPONDENT’S MOTION FOR SUMMARY RELIEF DENIED: April 19, 2013
CBCA 2862
TURNER CONSTRUCTION COMPANY,
Appellant,
v.
SMITHSONIAN INSTITUTION,
Respondent.
Douglas L. Patin and Jeremiah S. Regan of Bradley Arant Boult Cummings LLP,
Washington, DC, counsel for Appellant.
Peter M. D’Ambrosio and Todd M. Conley of Womble Carlyle Sandridge & Rice,
LLP, Washington, DC, counsel for Respondent.
Before Board Judges SOMERS, McCANN, and KULLBERG.
SOMERS, Board Judge.
More than a decade ago, the Smithsonian Institution (SI or the Smithsonian) sought
to modernize and expand the National Museum of American History.  In order to achieve
that goal, the Smithsonian contracted with Turner Construction Company (Turner) to
provide of various design and construction services in a long-term, multiple-phase project
entitled “Public Space Renewal Project at the National Museum of American History.”  The
project involves two contracts, amended by several modifications. 


CBCA 2862 2
The issue before us in this case involves the final contract price.  The Smithsonian
contends that the parties agreed on a total price, established by contract modification, which
was a not-to-exceed price beyond which Turner may not recover the costs of construction. 
The contracting officer rejected Turner’s claim for an equitable adjustment on the basis that
it would exceed the final price.  Conversely, Turner asserts that SI failed to negotiate a final
fixed-price contract, thus breaching the contract requirements.  
Turner and the Smithsonian filed an extensive joint statement of undisputed facts, as
well as separate statements of undisputed facts, statements of genuine issues, and cross-
motions for summary relief.1  For the reasons set forth below, we grant Turner’s motion for
summary relief in part and deny the Smithsonian’s motion for summary relief. 
Background
The Skidmore, Owings and Merrill Contract
On May 20, 2002, SI awarded a contract to Skidmore, Owings & Merrill LLP
(SOM).  The request for proposals which led to the contract informed prospective
contractors that the Smithsonian was “seeking proposals from experienced architect-
engineering firms to lead a design/build team for the National Museum of American History
Public Space Renewal Project.”  The design and construction services were divided into
seven separate phases.  The first phase was the “Concept Phase,” and the contract identified
a total firm-fixed price of $250,000 for that initial work.  The contract also identified six
additional construction/design phases as options.  
Section A.1 of the SOM contract also includes the following description of the
“Contract Documents”:  
1 In addition, Turner filed a motion to strike Exhibit 40 from the joint appeal
file.  Exhibit 40 consists of excerpts from Turner’s Request for Equitable Adjustment
(REA).  Turner contends that it prepared the document for settlement purposes and that the
document is inadmissible pursuant to Federal Rules of Evidence 408.  The Smithsonian
objects, arguing that the document is not privileged, or, alternatively, that Turner waived the
privilege by relying upon the document in its certified claim and its complaint.  Although
we did not find the document necessary to reach our resolution, the fact that the document
forms the underpinning of Turner’s certified claim means that Turner cannot assert the
privilege without bringing into question the validity of its certified claim.  We deny the
motion to strike.  

CBCA 2862 3
A.1.  The Contract Documents.  The Contract consists of the Smithsonian
Institution Document, including the Schedule and the following documents
that are included either in full text or by reference, with full force and effect
as if attached to the Contract.
* * * 
A.1.6.  Smithsonian Institution Construction Contract Clauses (Fixed Price),
OCON Form 6 (June 2001).
* * * 
A.1.7.  Smithsonian Institution Architect-Engineer Contract Clauses (Fixed
Price), OCON Form 8 (June 2001).  
The Smithsonian Institution Construction Contract Clauses (Fixed Price), OCON
Form 6 (June 2001) include standard Federal Acquisition Regulation (FAR) fixed price
contract clauses, including FAR 52.232-5, Payments Under Fixed-Price Construction
Contracts (May 1997).  Similarly, Smithsonian Institution Architect-Engineer Contract
Clauses (Fixed Price), OCON Form 8 (June 2001) include a variety of standard FAR fixed
price contract clauses, including FAR 52.232-10, Payments under Fixed Price Architect-
Engineer Contracts (Aug. 1987) and FAR 52.243-1, Changes, Fixed Price, Alternate III
(Apr. 1984).  
In early 2004, the parties agreed that the contract with SOM would be novated and
that Turner would assume the responsibilities under the SOM-SI contract.  On February 12,
2004, SI executed Modification 0003, which spelled out that agreement.  The modification
bound Turner to the contract provisions.  
The Turner Contract
On September 29, 2005, the Smithsonian Institution awarded Turner contract
number F0536CW10520, entitled “Revitalize National Museum of American History
(NMAH), Behring Center, Public Space Renewal, Package II-B,” with a contract price of
$10,645,174.26.12.  The contract identified this amount as a “not-to-exceed price” for the
following services performed “under this work order contract: (1) A/E Design -
$4,109,719.16; (2) Long lead item requisitioning - NTE $ 6,000,000.00; (3) Soft Demolition
NTE $ 535,454.96.”  
 

CBCA 2862 4
The contract contained the following provision concerning contract disputes:  
CLAIMS: “Claims”, as used in this clause, means a written demand or written
assertion by one of the contracting parties seeking, as a matter of right, the
payment of money in a sum certain, the adjustment or interpretation of
contract terms, or other relief arising under or relating to this contract.  A
claim arising under the contract, unlike a claim relating to that contract, is a
claim that can be resolved under a contract clause that provides for the relief
sought by the claimant.  
Modification 0001
On July 17, 2006, the parties executed Modification 0001 to “include amended
specifications and additional requirements.”  It further stated that “[t]he total funding and
amount for [certain design requirements], not including funding previously provided in the
original contract, is a [sic] not-to-exceed (NTE) $4,688,156.19.”  The modification also
stated that “$16,000,000.00 in funds is awarded for future construction work.”  The
modification concluded that the total pricing amount of the contract “is increased by NTE
$20,688,156.19 from $10,645,174.26 to NTE $31,333,330.45.”2 
Completion of 95% Construction Documents
On September 16, 2006, Turner completed its 95% construction documents.  After
a series of meetings with SI in October 2006, Turner presented its 95% construction
documents pricing to SI on November 17, 2006.  SI reviewed this document and returned
it to Turner with comments, and Turner resubmitted the document to SI on November 21,
2006.  
On December 4, 2006, Lloyd McGill of SI sent the following e-mail message to Bill
Wright of Turner:  
2 Most of the bilateral modifications contain a statement entitled “Contractor’s
Statement of Release.”  Although such a statement could be construed to release SI from all
claims arising from the various modifications, the fact that the parties continued to negotiate
indicates that the releases held no meaning for the parties.  Community Heating & Plumbing
Co. v. Kelso, 987 F.2d 1575 (Fed. Cir. 1993); Walsh/Davis Joint Venture v. General
Services Administration, CBCA 1460, 11-2 BCA ¶ 34,799.  In any event, we conclude that
the releases do not present an issue here, noting that the parties did not address the potential
relevance of release statements in any of their submissions to the Board.  
   

CBCA 2862 5
This correspondence is to provide notice to proceed (NTP) with additional
construction services for the Public Space Renewal Project (PSRP) under
Contract F0536CW10520 at the Behring Center, National Museum of
American History.  Funds in the amount of $22,405,909.04 are being provided
for continued construction activities.  A formal modification will be issued to
definitize activities.  
The next day, the contracting officer, Dorothy Leffler, sent the following e-mail message to
Bill Wright: 
This correspondence is to provide notice to proceed (NTP) with additional
construction services for the Star Spangled Banner Shell Construction under
contract F0536CW10520 at the National Museum of American History,
Behring Center.  Funds in the amount of $4,725,818.00 are being provided for
continued construction activities.  A formal modification will be issued to
definitize these activities.  
Modification 0007
On December 27, 2006, the parties executed Modification 0007.  The modification
stated, in part:  
A.1.  This modification is issued to provide additional undefinitized funding
for construction of the Public Space Renewal and the Star Spangled Banner
Projects (PSRP/SSB). 
A.1.1.  This is a funding action only [sic] is not intended to represent a total
firm fixed amount obligation on the part of the Contractor.[3]
A.2.  Once construction activities are definitized, funding will represent a firm
fixed price contract amount.
A.3.  The Contractor shall perform construction services in accordance with
the 95% drawing documents issued by the Architect/Engineer, dated
September 10, 2006.
3 The parties dispute the impact and meaning of the modification language, and
it is not clear to us what is meant by a “firm fixed amount obligation on the part of the
Contractor.” 

CBCA 2862 6
. . . . 
C.  The total contract funding and amount is increased by $27,504,031.04.00
[sic] from, $32,284,727.20 to $59,788,758.24 (NOTE: The total funding and
amount includes funds provided for design services.  Once pricing for
construction services is finalized, design funds will be referenced only).
The parties agree that because Turner and SI were in the process of negotiating the 95%
construction documents price as of December 27, 2006, Modification 0007 did not establish
a fixed construction price. 
Modification 0008
On January 19, 2007, Turner submitted its revised cost proposal for the 95%
construction documents, proposing a total price of $60,755,350 -- i.e., $51,823,836 for
construction, $8,814,609 for design, and $116,905 for early packages construction
administration cost.  Based upon this price, there was a $966,591.76 shortfall in the total
construction price set forth in Modification 0007.  
On February 22, 2007, SI unilaterally executed Modification 0008, which increased
the total contract funding and amount by $966,592, to a total price of $60,755,350.24, the
price proposed in Turner’s January 19, 2007, 95% construction documents submission. 
Modification 0008 stated, among other things:  
A.1.  This modification is issued to provide additional funding for
construction for the Public Space Renewal and Star Spangled Banner Projects
(PSRP/SSB).  
A.1.1.  This is a funding action only.   
Modifications 0009 through 0015
Between March 26, 2007 and July 31, 2007, the parties executed Modifications 0009
through 0015.4  These modifications increased the total contract funding amount from
$60,755,350.24 to $69,485,734.24.  Turner invoiced SI for its work through the submission
of progress payment applications, and SI paid Turner accordingly.  
4 Modification 0012 was a unilateral modification issued by SI.  Both parties
executed the other modifications.  

CBCA 2862 7
Modification 0016
In an undated letter sent on July 19, 2007, Ms. Leffler, the contracting officer,
indicated her concern that certain amendments developed by SOM “have major implications,
which if not acted upon, will seriously jeopardize the projected completion and scheduled
opening of July 4, 2008.”  She directed Turner to evaluate these changes and explained that
she had authorized $1.5 million to be set aside to be used to modify the contract once the
potential changes had been evaluated and the Smithsonian reached “a fair and reasonable
conclusion as to its ownership.”  
Turner responded in a letter dated August 21, 2007, that it believed:
[W]e are currently working under a contract that is undefinitized relative to
cost and this has been confirmed in Modification #7 and has been reconfirmed
in Modification #16.  The path to definitizing the cost and pricing for the
contract is somewhat complicated and the path forward after the definitization
(as to what constitutes a change) will also require some discussion.  We will
continue to advance the project within the available funding and will continue
to notify SI when we believe additional funding is required.    
 On September 10 and 11, 2007, the parties executed Modification 0016, which
established a substantial completion date of June 20, 2008.  It stated, in pertinent part: 
B.  With regard to the contract price, Modification 0007 stated, “This is a
funding action only and is not intended to represent a total firm fixed price
amount obligation on the part of the Contractor,” therefore leaving a large
portion of the contract amount undefinitized.
B.1.  Subsequent to Modification 0007, Modifications 0008 and 0012 have
been issued to provide additional undefinitized funding; however,
Modifications, other than those cited, represent a firm-fixed price commitment
on the part of the Contractor for performing the work that has been definitized
or described in associated changes; however, it is agreed that the construction
activities for total funds available on the contract have not been completely
definitized.
B.2  Both parties agree that it is in the best interest of the project to definitize
the project as early as is possible so that our project teams have clarity on this
matter.  As such, both parties agree to expend reasonable efforts to negotiate
a definitized contract amount which shall incorporate all work up to a date

CBCA 2862 8
selected mutually by the parties.  Both parties shall endeavor to conclude such
negotiations by August 30, 2007 [sic]. 
Prior to signing Modification 0016, Mr. Jahrling of Turner wrote to Lloyd McGill of SI on
September 9, 2007, stating, in part:  
I have reviewed the document and in general the document accomplishes the
two missions we both wanted to do.  First, it establishes the substantial
completion date as June 20, 2008.  It has the POP [period of performance] at
June 20th as well, but acknowledges that the work will continue past this date
. . .I believe that later you will have to adjust the POP to allow the work to
continue past this date.  On the funding and pricing side, the situation is
complex to be sure, but the wording you have included is close enough for
now.  As discussed and agreed to earlier, while there have been a bunch of
“lump sum” changes agreed to, we are not accounting for these changes on an
individual basis.  They are lump sum components assumed to be the pieces of
the project that we have agreed upon and will not be allowed to change in
pricing as we work on definitizing the entire contract in the coming weeks.
Unless you have any disagreement, I will sign this modification and forward
it to you.  
Mr. McGill wrote back on September 10, 2007, saying that “[e]veryone is in agreement with
your statements.  Let’s move on.”  As noted above, both parties signed the modification.  
Addenda 1-4 to the 95% Construction Documents
Although the parties had planned to conclude construction-work scope and cost
negotiations for Addenda 1-4 by the August 30, 2007, target date, this did not happen.  As
of September 11, 2007, the parties were negotiating the work scope and price of Addenda 1
and 2 to Revision 7 to the 95% construction documents.  Also, the parties continued to
negotiate the work scope and price of Addenda 3 and 4.  
In a letter dated September 19, 2007, the contracting officer, Dorothy Leffler, stated,
in pertinent part:  
This is to confirm Smithsonian Institution (SI) request of 9/11/07 to Turner
Construction Company (TCCo) to provide a list of possible options to reduce
the project overall cost.  

CBCA 2862 9
SI’s review of the recent addendum proposals and TCCo’s allowances, which
have cost impacts on the project budget has revealed that the present value of
the project exceeds the design-build price of $55,959,054.  This figure does
not include the design cost of the design-build price. 
Per Contract F-0536CW10520 Part XII - Construction Cost
Limitation/Revisions (C), SI hereby directs TCCo to provide a “shopping list”
of options to reduce the scope of work for the PSRP II project.  TCCo is to
provide costs associated with each line item.  It is understood that some of the
items listed could be deferred and installed at a later date.  The schedule for
the installation is to be determined.  
SI requests TCCo to provide a firm fixed price for the following TCCo
outstanding allowances including, but not limited to: Design contingency,
Demolition of walls within ‘Field to Factory’, CWAS system, Hazmat
Abatement, Removal and replacement of ceilings, Patch fire rated partitions,
and submit the list of suggestions to correct scope to be within the design-
build price by Tuesday, 9/25/07.  It is the intent of SI to select the acceptable
options by Tuesday 10/2/07 and request TCCo to revise the project documents
accordingly.  
The parties agree that, prior to that date, SI had never communicated to Turner that there was
a “design-build price of $55,959,054.”  SI did not explain how the $55,959,054 was
calculated.  It appears, however, that the contracting officer believes that $55,959,054 is the
maximum contract price, which is inconsistent with earlier statements.  
In response, Mr. Jahrling sent Ms. Leffler an e-mail message on September 20, 2007,
stating, in part:
1. You note a number of $55,959,054 as a design build price which
appears as the target to reach for the value engineering exercise.  I
would like to clarify that this is so, since almost a year ago, the 95%
estimate was $58,036,962 and a number of items have been added
since including asbestos, etc.  So to clarify, we are to attempt to reach
the 55.9 number INCLUDING all of the other added changes, etc.?
2. The discussions for Addendums #1 through 4 are apparently going to
be held on Tuesday as well...this will be good so that we will all know
what we are up against...could be $6-10 million.

CBCA 2862 10
After much discussion and e-mail messages back and forth about what to do, Mr. Jahrling
wrote in a letter dated October 18, 2007, that:
With that January 19th letter, we asked two important questions that were
never answered by SI:
1. What are the steps to get a modification issued and steps to get a firm
fixed price contract in place?
2. Do you want another copy of the Turner proposal which would include
all of the qualifications and assumptions?
It is clear in all of the correspondence and all actions that SI has never
officially dealt with the 95% estimate in anything but a piecemeal approach
and the project today continues undefinitized relative to cost.  In one of our
recent meetings you asked the question out loud “What is the baseline (cost)?”
and I replied that there is none...that remains true today, and until your request
in one of the following meetings for us to issue a proposal to definitize the
costs, there has been no action toward definitization since the 95% estimate
was delivered in January 2007.
DEFINITIZING THE CONTRACT
Based on all correspondence and all actions, the contract between Turner and
SI remains undefinitized relative to cost.  As work is proceeding, we maintain
that we are currently working on a Cost-Type basis for all elements of the
work that are not definitized and will continue to do so until the contract is
definitized between the parties.
Modification #7 issued in December of 2006, contemporaneous with the
ongoing pricing work described above clearly states that “This is a funding
action only and is not intended to represent a total firm fixed amount
obligation on the part of the Contractor.”  Clearly SI understood that there was
no fixed amount (contract undefinitized relative to cost) at that time, and no
actions have been taken since (excepting your recent request for a proposal to
definitize) to fix the costs.
Modification #16 issued in September 2007 again reiterated that a “large
portion of the contract amount is undefinitized.”

CBCA 2862 11
In a series of e-mail messages dated October 19, 2007, to October 21, 2007, the
parties continued discussing pricing for Addenda 1-4.  In an October 19, 2007, e-mail
message, SI stated, in part:
The revised pricing for Addendums were just received from TCCo last week
and are not to be linked to the delivery of the recovery schedule that was
requested by letter over a month ago.  SI’s review of the Addendums shows
that additional costs have been added with no or little qualifications.  TCCo
seems not to understand that the Not To Exceed price has been exceeded and
TCCo correcting unjustified labor rates is not an invitation to correct apparent
bid errors.  These changes in the bid will only prolong the SI review.
In response, Turner stated in an October 21, 2007 e-mail message:
I understand your frustration, but I hope you can understand mine.  I think
everyone is clear that there was some confusion relative to the way the
contract is coming together, but by now we should have gotten to the point
where all understand that we should not be expected to fund millions of
dollars in changes out of our pocket when we had never included them
(actually specifically excluded them).  The team’s inability to come to closure
on this is causing a great deal of strife within the entire team.
Relative to proceeding with certain parts of the project, my understanding is
that we have a limited release to proceed with Amendments 1 and 2 not to
exceed $1,500,000 but it is also my understanding that we have not been
allowed to bill for this work.  It is also my understanding that we have not
been released to go forward with Amendments 3 and 4.  Closure on these
issues is critical to forward progress.
SI’s Derek Ross replied on October 22, 2007:
Of the $1.5M you have approx $815K that is in the contract that you could bill
against and after reviewing the corrected documents for Add #3 and #4 we are
processing those modifications.  You did receive NTP for Add #4 back in
August.  I understand you have released the gear for Add #3 that pricing
includes acceleration cost.
By e-mail message dated October 23, 2007, to Mr. Ross, Mr. Jahrling submitted a
Financial Status Report dated September 25, 2007, showing total funding for the contract

CBCA 2862 12
through Modification 0018 to be $69,696,353.  This communication showed the total
estimated costs to be $82,706,320 – a shortfall of $13,009,967.  The letter also states, in part:
The “Contingencies to Complete” section I had Bill put in to show what
additional costs one might expect to spend to completion on this project. 
Clearly how these costs are tracked will depend upon whether we reach an
agreement on a definitized contract amount which may include all design and
construction contingencies or whether we continue along the current path.  In
a complicated renovation project such as this, there must be some recognition
that additional cost events will occur.  Between us, we need to clearly identify
for the team who is responsible for what in a general sense so that they can
work better together rather than battling over every cost event.
On the Allowances, I know that SI would like to definitize the allowances, but
we cannot support definitizing the Hazardous Material Allowance and we
probably have not seen the end of the Remove and Replace existing ceilings
to remain.
On October 28, 2007, Mr. Jahrling sent to Mr. Ross a revised financial status report. 
At page 2 of the report, under “Total Additional Funding Required (Total Estimated Cost
Less Total Funding Received thru Mod 15),” it showed a shortfall of $9,558,018 from the
projected cost of $79,254,371.  SI provided its comments to Turner by transmittal dated
November 9, 2007.
On March 11, 2008, Turner met with Robert Fraga, the newly assigned contracting
officer, and his staff, to review the contract and attempt to amicably resolve the parties’
disagreements over contract pricing.  The contracting officer asked Turner to put its position
in writing and stated that he would issue a determination on what the contract required. 
By letter dated March 27, 2008, Turner explained its position to SI.  Referring to
Modifications 0007 and 0016, Turner stated:  
[The] Smithsonian clearly understood that a definitized contract amount was
to be negotiated.  This has not happened yet.  
To date, only $14,707,748 in scope has been definitized.  Turner and the
Smithsonian must still negotiate and definitize the balance.  
On April 7, 2008, Mr. Fraga issued his determination on the contract requirements. 
He concluded that the contract was a fast track, design-build contract with incremental

CBCA 2862 13
funding.  While Mr. Fraga acknowledged that providing additional funding to the project
without allocating funds to specific work activities might be administratively confusing,
those actions did not relieve Turner from constructing the project for the not-to-exceed
amount identified in Modification 0001.  Mr. Fraga also stated that “the failure to reach a
negotiated settlement at 95% documents was primarily due to [Turner’s] failure to deliver
a timely and complete set of documents and the Smithsonian’s unwillingness to accept
[Turner’s] Assumptions and Clarification associated with the 95% package.  Nevertheless,
construction work has continued in the absence of the negotiated settlement.”  Mr. Fraga
directed the parties to negotiate a firm fixed price agreement that took into account differing
site conditions, scope increases, owner generated changes, and extended overhead due to
owner delays.  
On April 15, 2008, Mr. Fraga amended his previous letter.  In response to comments
apparently raised at a meeting held on April 7, 2008, he clarified:
[Turner’s] representatives disagree with my interpretation that the contract is
a “not to exceed, guaranteed maximum price type contract.”  It is true that the
terms “not to exceed” or “guaranteed maximum price” are not found in the
contract but this is clearly the intent of the contract and it is supported by the
contract language and its implementation.
The pricing of the construction portion of this contract can only be one of
three options: fixed price, not to exceed guaranteed maximum price, or cost
reimbursable.  This is clearly not a fixed price contract.  
. . . . 
The scope of the work for the project was defined by a number of documents
early in project development, including OFEO’s [Office of Facilities
Engineering and Operations’] statement of work provided to SOM and the
original and revised 35% documents.  These documents established the scope
of work and were the basis for Modification #1.  Consistent with a not to
exceed guaranteed maximum price contract, the scope of work continued to
be refined through further design development in the 65%, 95%, and finally
the 100% submissions.  Scope reductions were made through negotiations to
keep the project within budget.
Mr. Fraga concluded by confirming that his earlier determination remained unchanged.  As
a result of contract modifications issued unilaterally by SI, the contract amount increased

CBCA 2862 14
from $69,485,734.48 to $75,030,697.77.  Ultimately, Turner substantially completed the
project on October 31, 2008, and the museum opened to the public in November 2008.   
On May 24, 2011, Turner submitted a certified claim for $14,527,695.  Contracting
officer Dorothy Leffler denied the claim in its entirety on June 5, 2012.  First, she reviewed
the contracts and associated documents, concluding:  
I find that the plain language in the contracts and associated documents clearly
demonstrates that these design/build contracts were Fixed Price in nature, with
the Fixed Price for the construction work to be negotiated after Turner
prepared its 95% CD Estimate.  
The contracting officer explained the Smithsonian’s process of incrementally funding the
contract, stating:  
SI’s funding for the Project work was provided, in large measure, by a single
private donor.  Because the private donor provided the Project funding
incrementally throughout the Project, SI had to also incrementally fund the
contracts with SOM and Turner in order to avoid incurring obligations in
excess of its available funding.  As a consequence, SI incrementally
definitized the fixed prices for various elements of the contract work, and also
used fixed “not-to-exceed” (“NTE”) prices to avoid incurring obligations in
excess of the funds available at any given time.  
SI used modifications to increase the fixed-price contract amount as necessary.  The
contracting officer determined that this process did not change the fixed-price nature of the
contract.  
The disputes clause of the contract states that the decision of the contracting officer
is final and conclusive unless within thirty days from the date of receipt of the decision,
Turner mails or otherwise furnishes the contracting officer a written appeal addressed to the
Secretary of the Smithsonian Institution.  A memorandum of understanding provides that
the United States Civilian Board of Contract Appeals will act as the Secretary’s duly
authorized representative for the determination of any administrative appeal from the
decision.  Accordingly, upon receipt of the contracting officer’s final decision, Turner
appealed the decision to the Board.  

CBCA 2862 15
Discussion
The parties conceive of the issue on appeal quite differently.  Turner argues that SI
failed to definitize the contract and negotiate a firm fixed price as contemplated by the
contract.  Specifically, when Turner submitted its 95% proposal in accordance with the
contract, it contends that the parties never definitized the contract value.  While the parties
had reached agreement on fixed prices for a portion of the work, the vast majority of the
construction work remained “undefinitized” with no agreement on the total lump sum price. 
Turner contends that SI added work, deleted work, and changed previously designed work. 
Turner believes that it is entitled to receive a reasonable price for the work which remained
undefinitized under the contract.  In sum, Turner says, the plain language of
Modifications 0007 and 0016, combined with the parties’ contemporaneous conduct,
demonstrate that the parties intended to reach a firm fixed price. 
By contrast, the Smithsonian insists that it accepted Turner’s fixed price proposal
when it issued Modification 0008 and set the contract price.  Thereafter, the parties’
conduct, including Turner’s applications for payment, change requests, and request for
equitable adjustment, were all consistent with a fixed price agreement.  SI contends that
Turner’s remedy is under the contract’s “equitable adjustments” and “disputes” clauses.  
 
This dispute requires us to determine whether the parties agreed on a price for the
construction work in accordance with the contract’s terms.  If the parties did not so agree,
then we must determine the consequences, if any, of the parties’ failure to negotiate a
contract price.   
Applicable Legal Standards
Summary relief is appropriate when there is no genuine issue of material fact and the
moving party is entitled to judgment as a matter of law.  Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 247 (1986).  Only disputes over facts that might affect the outcome of the case
under governing law will properly preclude the entry of summary judgment.  Id. at 248. 
“When, as here, both parties have moved for summary relief, each party’s motion must be
evaluated on its own merits and all reasonable inferences must be resolved against the party
whose motion is under consideration.”  Charleston Marine Containers, Inc. v. General
Services Administration, CBCA 1834, 10-2 BCA ¶ 34,551, at 170,398 (citations omitted). 
The issue raised by both parties involves interpreting the meaning of contract terms
in the context of the original contract and the contract modifications.  Contract interpretation
is a legal question that is often amenable to summary disposition.  JAVIS Automation &
Engineering, Inc. v. Department of the Interior, CBCA 938, 09-2 BCA ¶ 34,309, at 169,478,

CBCA 2862 16
citing Varilease Technology Group, Inc. v. United States, 289 F.3d 795, 798
(Fed. Cir. 2002). “When interpreting the language of a contract, we must give reasonable
meaning to all parts of the agreement and not render any portion meaningless, or interpret
any provision so as to create a conflict with other provisions of the contract.” Arcadis U.S.,
Inc. v. Department of the Interior, CBCA 918, 08-1 BCA ¶ 33,807, at 167,353 (citations
omitted).   The determination of a contract type is also a matter of law, and the tribunal is
not bound by the label attached to it by the parties.  JAVIS, citing Maintenance Engineers
v. United States, 749 F.2d 724, 726 n.3 (Fed. Cir. 1984).  
Analysis
In this case, we are called upon to determine, based upon the language of the contract
and the modifications to the contract, whether the parties agreed upon a fixed contract price. 
We find that they did not.  
First, we note that the contract provided that the Construction Work Phase would be
negotiated at the completion of the “95% Construction Documents.”  It is undisputed that
upon Turner’s completion of the 95% construction documents phase, negotiations on the
Construction Work Phase had begun, but the parties had not yet “definitized” the total
contractual amount for the construction services contemplated by the contract.  This is
confirmed by Modification 0016, where the parties agreed to “expend reasonable efforts to
negotiate a definitized contract amount” by August 30, 2007.  
Indeed, the evidence shows that the parties continued to negotiate to reach a final
contract price, first focusing on the work scope and price for Addenda 1 and 2 to Revision 7
of the 95% construction documents, and later turning to the work scope and price of
Addenda 3 and 4.  The contracting officer asked Turner to provide options for reducing the
overall project cost.  Over the course of months, the correspondence reveals the parties’
efforts to try to definitize the scope and costs of the contract, as well as the extent to which
they continued to disagree about contract price.  
In our view, it is clear that the parties failed to agree on a “definitized contract
amount,” as least as to certain portions of the contract.  They never came to a meeting of the
minds on the final contract price.  Indeed, the parties agree that “SI and Turner did not
conclude construction work scope and cost negotiations . . . by the August 30, 2007 target
date.”  Joint Statement of Uncontested Facts ¶ 45.  
What is the significance of this fact?  Turner urges that the Smithsonian’s failure to
definitize a final price for construction services constitutes a breach of the contract. We
disagree.  The contract requires only that the parties “negotiate a definitized contract

CBCA 2862 17
amount.”  This provision does not obligate the Smithsonian to accept a proposed definitized
contract amount – it mandates merely that the parties try to come to agreement.  Because “[a]
contract term which allows for future negotiation ‘impliedly places an obligation on the
parties to negotiate in good faith,’” the Smithsonian could only breach its obligation under
this provision if it failed to act in good faith.  See, e.g., Gardiner, Kamya & Associates v.
Jackson, 369 F.3d 1318, 1322 (Fed. Cir. 2004) (citations omitted).  Nothing in the record
suggests that the Smithsonian failed to make a good faith effort to negotiate a contract price. 
Accordingly, we deny Turner’s motion for summary relief to the extent that it asks for a
determination that the Smithsonian’s actions constituted a breach to the contract.  
The fact that the Smithsonian did not breach its contractual obligation to negotiate
a contract price, however, does not mean that Turner is without recourse to recoup the
amount it seeks.  The parties agree that their original intent was to negotiate a firm fixed
price and scope of the construction work once Turner submitted the 95% construction
documents to the Smithsonian.  On this point, the Smithsonian argues that the final contract
price was established through Modification 0008.  SI also contends that the subsequent
contract modifications, which increased the contract price from $69,485,734 to $75,009,526,
support its argument that the contract was a firm fixed-price contract.  However, SI also
acknowledges that “because the parties were not able to agree on a price adjustment for
Addenda 1 through 4 work,” SI unilaterally issued modifications to compensate Turner for
additional work.  
Whether or not the contract could be characterized as a firm fixed-price contract is
beside the point.  Turner could not have been clearer in its actions and correspondence
throughout the process that it believed that the parties had not agreed on a price.  Based upon
an examination of the record, we find that the parties’ actions subsequent to the issuance of
Modification 0008, and, in particular, the terms agreed to in Modification 0016, illustrate
that the parties never reached final agreement on the contract amount.  Indeed, the record
makes plain that the parties never reached agreement on a maximum ceiling price for the
project.  While the plan may have been to negotiate a firm fixed-price contract, the parties
never accomplished that task. 
SI claims that in order for Turner to be entitled to be paid reasonable construction
costs, we must determine that the contract is actually a cost reimbursement contract rather
than a fixed-price contract.  This is not correct.  If the contract is a fixed-price contract, and
the parties had actually reached agreement to a fixed price, Turner could still submit a claim
for an equitable adjustment under the terms of the contract’s disputes provision.  The fact
that the contract has a maximum ceiling price does not preclude SI from considering a

CBCA 2862 18
properly submitted claim that seeks an equitable adjustment to the contract.  Consideration
of a claim for equitable adjustment, which is permitted under the contract, does not in and
of itself change the contract from a fixed-price contract to a cost-reimbursement contract.5 
SI asserts that the decision in Arcadis is instructive.  It contends that the Board in
Arcadis considered not only the language of the modifications, but also the parties’ conduct,
to determine that the Government’s liability was limited to the contract price.  A review of
the facts of Arcadis, however, shows that the modifications in that case specifically
referenced the contract price using “not-to-exceed” language.  Only Modification 0001 in
the contract at issue here contained “not-to-exceed” language to set a funding limitation for
a contract amount.  None of the subsequent modifications, including Modifications 0007,
0008, and 0016, uses any language that conveys a “not-to-exceed” ceiling price.  To the
contrary, none of the modifications after Modification 0001 identifies a firm fixed price as
the maximum contract price.  The relevant modifications, specifically Modifications 0007
and 0008, state that “[o]nce construction activities are definitized, funding will represent a
firm fixed price contract amount.”  This statement is not the same as a statement clearly
setting forth a “not-to-exceed” funding limitation.  
5 In any event, even a cost-reimbursement contract has a maximum price.
FAR Subpart 16.3, entitled Cost Reimbursement Contracts, states: 
Cost-reimbursement types of contracts provide for payment of allowable
incurred costs, to the extent prescribed in the contract. These contracts
establish an estimate of total cost for the purpose of obligating funds and
establishing a ceiling that the contractor may not exceed (except at its own
risk) without the approval of the contracting officer. 
Like a firm fixed-price contract, a ceiling price caps the amount of costs that can be claimed
by the contractor absent a claim for equitable adjustment. 

CBCA 2862 19
Decision
For the reasons set forth above, we GRANT Turner’s motion for summary relief IN
PART, concluding that Turner is entitled to be paid a reasonable amount for the work it
performed on the project.  We DENY the Smithsonian’s cross-motion for summary relief. 
___________________________
JERI KAYLENE SOMERS
Board Judge
We concur:
__________________________ ____________________________
R. ANTHONY MCCANN H. CHUCK KULLBERG
Board Judge Board Judge