ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of

-- ) ) Columbia State Bank )

(formerly Appeal ofCastle-Rose, Inc.) ) ) Under Contract No. W912DW-10-C-0015 )

APPEARANCE FORTHE APPELLANT:

APPEARANCES FORTHE GOVERNMENT: ASBCA No. 59531

Erich M. Paetsch, Esq.

Saalfeld Griggs PC Salem, OR

Thomas H. Gourlay, Jr., Esq.

Engineer ChiefTrial Attorney Ian D. Clunies-Ross, Esq.

EngineerTrial Attorney U.S. Army Engineer District, Seattle

OPINION BYADMINISTRATIVE JUDGE O'SULLIVAN ONAPPELLANT'S MOTION FOR SUMMARYJUDGMENT

This appeal arises from a contracting officer's (CO's) final decision (COFD) denying the claim ofCastle-Rose, Inc. (CRI), for costs ofa constructive change, differing site conditions, government-caused delays, and expert consulting fees incurred on a contract for construction ofnewbuildings atthe Howard Hanson Dam in Cumberland, Washington. 1 CRI has moved for summaryjudgmenton entitlement as to each claim item. Forthe reasons statedbelow, we deny the motion.

STATEMENT OF FACTS (SOF) FORPURPOSES OF THE MOTION

1. On 19 May 2010, the U.S. Army Corp ofEngineers, Seattle District (Corps or government) awarded ContractNo. W912DW-10-C-0015 (contract) to CRI for the construction ofan administration building and an addition to the existing maintenance building at the Howard Hanson Dam (HHD) Facility in Cumberland, Washington. The contract included multiple contract line item numbers (CLINs) for a total firm-fixed-price of$2,288,900. (R4, tab 3 at 3-4, 92) CRI was required to furnish all labor, materials and

1CRI subsequently entered into Chapter 7 bankruptcy proceedings, and the Bankruptcy Court assigned its claim to Columbia State Bank, which entered its appearance as thereal party in interest authorized to pursue the appeal on behalfofthe bankruptcy estate (see SOF**~~** 23-24). 2 Citations to the Rule 4 file are to the consecutively-numberedpages unless otherwise indicated.equipment on the project in accordance with the drawings andtechnical specifications incorporated into the contract (id. at 3).

2. The contract incorporated the following standard Federal Acquisition Regulation (FAR) clauses: 52.233-1, DISPUTES (JUL 2002); 52.236-2, DIFFERING SITE CONDITIONS (APR 1984); 52.236-3, SITE INVESTIGATION AND CONDITIONS AFFECTING THE WORK (APR 1984); 52.242-14, SUSPENSION OF WORK (APR 1984); and 52.243-4, CHANGES (JUN 2007) (R4, tab 3 at 24).

3. FAR52.236-2,DIFFERING SITE CONDITIONS (APR 1984)provides, in relevant part, that:
(a) The Contractor shall promptly, and before the conditions are disturbed, give a written notice to the Contracting Officer of(1) subsurface or latentphysical conditions at the site which differ materially from those indicated in this contract, or (2) unknown physical conditions at the site, ofan unusual nature, which differ materially from those ordinarily encountered and generally recognized as inhering in work ofthe characterprovided for in the contract. (b) The Contracting Officer shall investigate the site conditions promptly afterreceiving the notice. Ifthe conditions do materially so differ and cause an increase or decrease in the Contractor's cost of, orthe time required for, performing any part ofthe work underthis contract, whether
ornot changed as a result ofthe conditions, an equitable adjustment shall be made under this clause andthe contract modified in writing accordingly.

4. FAR 52.243-4, CHANGES (JUN 2007)provides, in relevantpart, that:
(b) Any otherwritten or oral order (which, as used in this paragraph (b), includes direction, instruction, interpretation, or determination) from the Contracting Officer that causes a change shall be treated as a change orderunder this clause

....

(d) Ifany change underthis clause causes an increase
or decrease in the Contractor's cost of, orthe time required for, the performance ofany part ofthe work underthis contract, whether or not changed by any such order, the
2Contracting Officer shall make an equitable adjustment and modify the contract in writing.

5. FAR 52.242-14, SUSPENSION OF WORK (APR 1984)provides, in relevant part, that:
(b) Ifthe performance ofall or any part ofthe work is, for an unreasonable period oftime, suspended, delayed, or interrupted (1) by an act ofthe Contracting Officer in the administration ofthis contract, or (2) by the Contracting Officer's failure to act within the time specified in this contract (or within a reasonable time ifnot specified), an adjustment shall be made for any increase in the cost of performance ofthis contract (excluding profit) necessarily caused by the unreasonable suspension, delay, or interruption, and the contract modified in writing accordingly. However,
no adjustment shall be made under this clause for any suspension, delay, or interruption to the extent that performance would have been so suspended, delayed, or interrupted by any other cause, including the fault or negligence ofthe Contractor, orfor which an equitable adjustment is provided for or excluded under any otherterm
or condition ofthis contract.

6. The contract also included "SPECIAL CONTRACTREQUIREMENTS" clauses, denoted by "SC." Clause SC-1, a variation ofFARclause 52.211-10, COMMENCEMENT, PROSECUTION, AND COMPLETION OF WORK (APR 1984),required CRI to complete work ontheproject no laterthan 365 days afterreceipt ofthe notice to proceed (R4, tab 3 at 35).

7. Clause SC-8, substantially similarto FAR 52.236-4, PHYSICAL DATA (APR 1984), provides, in relevant part, that:
(a) Physical Conditions: The indications ofphysical conditions on the drawings and in the specifications are the result ofsite investigations by surveys, test holes and soil exploration data. Soils boring logs are included with the drawings. This data is furnished for information only. Variations may exist in the subsurface between sample locations.
(R4, tab 3 at 37) Paragraph 1.5, ofsection 02300 ofthe contract specifications entitled "EARTHWORK," states that subsurface soil boring logs are depicted in the drawings and provide the best information available (id. at 296).

38. Clause SC-17, entitled "FIELD OFFICE OVERHEAD (Jul 2006)," required CRI to select an accountingpractice in its bid that would be applicable to any change orders, modifications, and requests for equitable adjustment. CRI was required to select
an accounting practice based upon either a per diem rate in accordance with clause SC-18, a percentage markup in accordance with clause SC-19, or some other allowable FAR accountingpractice. (R4, tab 3 at 40) Pursuantto clauses SC-18 and SC-19, CRI is entitledto receive an equitable adjustment "for any change to the contract.

..for which the Government is responsible, and which causes either an increase or decrease in [CRI's] costs as to time orperformance underthe contract. Under such an equitable adjustment, [CRI's] field office overhead shall be an allowable cost, in accordance with [CRI's] accounting practice." (Id. at 40-41)

9. In a response, tracked as ID 3211560, to a potential offeror's pre-award inquiry "Is woody debris noted in the bor[ing] log to be hauled off?,"the government stated that the "[s]ite consists ofspoil material from original Dam construction. There is no expectationto have significant over-excavation orto haul this material off." (R4, tab 5 at 1437)

10. On 27 May 2010, a Notice to Proceed (NTP) was forwarded to CRI tobegin workunderthe contract, effective 1June2010. CRI acknowledged receipt ofthe NTP on 28 May 2010. (R4, tab 7)

11. On 23 July 2010, the government issued a Request for Proposal (RFP) to CRI, requesting a proposal to add workto the contract relating to the installation ofa domestic waterwell and pump. The RFP referenced a statement ofwork (SOW) entitled "HHD Well Water."3 (R4, tab 24 at 2873-96) The scope ofwork underparagraph 1.1 ofthe SOW was summarized, in part as: "Thewell is to support new dam facilities that will be constructed in the near future. The well is anticipated to be drilled and installed to 250 ft below ground surface (bgs). However, the Contractor shouldhave drilling capability to at least 300 ft. One test hole well.

..will be drilled between 250

- 300 ft, and a capacity test will be performed." (Id. at 2874) The measurement and paymentprovisions underparagraph4.3.2 ofthe SOW providedthatpayment for drilling workunder CLIN 0002AAwould "be made at the contract unitprice" ($183.00/per linear foot), and "[d]rilling will be measured for payment on the basis ofthe linear feet ofholes actually drilled from the ground surface through overburden, and rock to depth" (id. at 2890).

12. Itis uncontrovertedthat CRI submitted a proposal, dated 18 August 2010, to the government, proposing a total price of$132,366.50 for the requested well and pump installation work (gov'topp'n, Genuine Issues ofMaterial Fact (GIMF) at 2, 

### ii 1.a.ii.3). With regard to CLIN 0002AA, CRIproposed a total amount based on a quantity of 250 linear feet, at a unitprice of$183 (app. mot., ex. 1; R4, tab 24 at 2897-98).

3 The attached statement ofwork in the record is entitled, in part, as "Scope ofWork" and dated 23 June 2010 (R4, tab 24 at 2874-95). 413. By letter dated 3 September2010, CRI notified the governmentthat it encountered a differing site condition that impacted its earthwork activities. CRI asserted that "[d]uring excavation

...unmarked sensorwires, piping and large boulders
were encounteredthat constitute a change in site conditions. These conditions are not shown on the plans, neither are they reasonably verifiable threw [sic] normal methods." (R4, tab 10 at 1)

14. Effective 1 December 2010, the parties executed a bilateral modification4 adding the installation ofthe domestic water well andpump work to the contract (R4, tab 12). The modification added a new CLIN 1002, increasing the total contract price by $120,383, and did not extendthe contract completion date (id. at 2310).

15. BetweenMay and August 2011, the parties executedbilateral modifications, Reference Nos. R00009, ROOOl l, R00012, and R00013, adding workto the contract, increasingthe total contractprice, and extending the contract completion date (R4, tabs 18-21). The Reference No. ROOO 11 modification extendedthe contract completion date by 30 calendar days, from 1June 2011 to 1July 2011 (R4, tab 19 at 2377). The Reference No. R00009 modification extended the extended the contract completion date by 28 calendardays, from 1July2011to29July 2011 (R4, tab 18 at 2374-75). The Reference No. ROOO 12 modification extended the contract completion date by four calendar days, from 29 July 2011to2 August 2011 (R4, tab 20 at 2379). The Reference No. ROOO 13 modification statedthat "[t]he contract completion date shall be extended by 60 calendar days" and "[t]his modification has a separate completion date of 3 October 2011" (R4, tab 21at2382).

16. By letter dated 2 September 2011, the government communicatedto CRI that it had "fixedthe contract's beneficial occupancy date as August 31, 2011." The letter also statedthat CRI would berequired to complete remaining open items, including final submittal ofOperations & Maintenance (O&M) manuals, final "as-builts" drawing documents, and remaining modification work, before receiving final payment. (R4, tab 22)

17. By letter dated 19 November 2012, the government enclosed final payment to CRI and a Release ofClaims for the contract (R4, tab 24 at 3196). On orabout 7 January 2013, CRI communicated its refusal to sign an unconditional release ofclaims and reserved its right to seek an adjustment underthe contract (id. at 3197).

4 The index ofthe government's Rule 4 file identifies this modification as Modification No. POOOOl (R00002). Upon ourreview, we note that this document does not containthis modification number, and several modifications to the contract in the Rule 4 file do not contain a modification number. Each modification contains a "ReferenceNo." Forthepurposes ofthis motion and clarity, we will referto a modification underthis contractby its "ReferenceNo." 518. On 11April2013, CRI submitted a Request for Equitable Adjustment (REA) seekingpayment in the total sum of$364,694. TheREA asserted multiple grounds for recovery due to delays and impacts on the project leading to increased costs

- $128,351 for differing site conditions; $9,150 for additional drilling work arising underthe Reference No. R00002 modification; $38, 198 for extended field office overhead; $126,511 for unabsorbed home office overhead; a sum total of$47,484 for markups consisting ofdirect costs, bonding, insurance, and taxes based on a 29 October2010 Modification Markup Meeting document; and $15,000 for consulting fees. (R4, tab 23 at 2407, 2415) With regard to differing site conditions that impacted earthwork activities, CRI alleged that it encountered large rock and boulders and unforeseen utilities that differed substantially from what was expectedbased on the geological information provided in the contract (id. at 2393). With regard to additional drilling, CRI alleged that it did not receive compensation for drilling 50 feet more in depth beyond the 250 feet on which its proposal price was based (id. at 2398-99, 2413). With regard to project delays, although the contract completion date was extended, CRI asserted that total delays on the project amountedto 300 days, and it was therefore entitled to compensation for 6 additional weeks ofextended field office overhead for changed work and 176 days of unabsorbed home office overhead (id. at 2401, 2403, 2413-14). Lastly, CRI requested reimbursement for attorney and expert consulting fees incurred as part ofcontract administration (id. at 2415).

19. By letter dated 14 June 2013, the CO denied CRl's REA. The CO asserted, among otherthings, that the modification adding the well drilling requirements was awarded as a lump sum and not at CRl's proposed unit pricing, CRI wasprovided time extensions underthe relevant modifications, and nowork underthe contractwas suspended. (R4, tab 28)

20. By letter dated 15 August 2013, CRI converted its 11 April 2013 REA into a certified claimpursuantto the ContractDisputes Act, 41 U.S.C. §§ 7101-7109 (R4, tab 30).

21. On4 June 2014, a COFD was issued denying CRI's claim, generally for the
same reasons expressed in the government's denial ofthe REA (R4, tab 2).

22. On 2 September 2014, CRl timely appealed from the COFD to the Board. CRl filed a motion for summaryjudgment on entitlement on 25 June 2015. The government filed in oppositionto appellant's motion and did not cross-move for summaryjudgment.

23. During the pendency ofCRI's motion for summaryjudgmentin this appeal, the Board was made aware ofCRl's pending Chapter 7 bankruptcyproceedings at the United States Bankruptcy Court for the Western District ofWashington (see Bd. corr. ltr. dtd. 11August2015 from Chapter 7 bankruptcy trustee). By letter dated 26 October 2015,

6the bankruptcy trustee communicated to the Board that it intended to authorize a creditor of CRI'sbankruptcy estate to continue prosecution ofthe appeal.

24. By letter dated 25 November 2015, bankruptcy creditor Columbia State Bank (Columbia Bank or appellant), entered its appearance in this appeal. Pursuant to an Order issued by the Bankruptcy Court, CRI's claim in the captioned appeal was assigned to ColumbiaBank, and ColumbiaBankwas authorized topursue the appeal on behalfofthe bankruptcy estate 

### (see Bd. corr., I 7 December 20I5 conference call memo). The appeal caption was modified accordingly to reflect the appearance ofColumbiaBank as the real party in interest in the appeal.

DECISION


### It is well settledthat summaryjudgment is appropriate only where the movant establishes that there is no genuine issue as to any material fact and that it is entitled to judgment as a matter oflaw. A material fact is one which may affect the outcome ofthe
case. 

### Anderson v. 

### LibertyLobby, Inc., 477 U.S. 242, 248 (1986). We do notresolve controversies, weigh evidence, or make determinations ofcredibility. 

### Id. at 255. All reasonable inferences are drawn in favor ofthe nonmovant. 

### Id.

Constructive Change -AdditionalDrillingDepth ofWater Well Appellant alleges thatthe government directed it toperform extrawork-drill an additional depth of50 feet-althoughthe Reference No. R00002 modification that the parties executed required a 250-footwell depth (app. mot. at I-2). 5 The government contends that it requested aproposal from appellant for the drilling ofa well depth between 250 and 300 feet, relying on language contained in paragraph I.I ofthe statement ofwork (SOF 

### i! II; GIMF at I-2, 

### iii! I.a.ii.I, I.a.ii.2). Appellant counters that the government requested aproposal that specified the drilling depth as a unit rate for 250 linear feet (app. reply at 2). Generally, an issue ofcontract interpretation is amenable to summaryjudgment where no ambiguity in the contract terms at issue exists requiring the weighing of extrinsic evidence. 

### ECCI-CMetag, JV, ASBCANo. 5903I, I5-I BCA

### i! 36,I45 at I76,4I9. Here we have contradictory contractprovisions that create an ambiguity. On the one hand, the measurement and paymentprovisions ofthe contractprovide that paymentwould be made on a unit price basis and measured on the basis ofthe linear feet actually drilled; and appellantproposed a total price of$132,366.50 based on 250 linear feet at a unit price of$I83 per foot (SOF 

### iii! II-I2). On the other hand, the resulting modification added one new CLIN to the contract in a lump sum price and did not

5 We note that appellant's claim demanded a sum certain of$9,I50 which was denied in the COFD (SOF 

### iii! I8-I9). In its complaint, appellant nowrevises its amount to $II,07I.50, enlarging its existing claimto include a markup.
7expressly incorporate appellant's proposal (SOF 

### ii 14). Moreover, the language in paragraph 1.1 ofthe statement ofwork states that the government anticipated that the well would be drilled to 250 feet but also that the testhole was to be drilled between 250-300 feet (SOF 

### ii 11). Because contradictory provisions exist requiring examination ofextrinsic evidence to determine the parties' intentions, granting ofsummaryjudgment is not appropriate. 

### SeeAshBritt, Inc., ASBCA Nos. 56145, 56250, 09-2 BCA

### ii 34,300 at 169,434 ("When the meaning ofa contract and the parties' intentions are both relevant and in dispute, there are mixed questions offact and law thatpose triable issues precluding summaryjudgment."). 

### DifferingSite Conditions

In its claim, appellant seeks a contract adjustment for two differing site conditions. Italleges that it encounteredthe presence oflarge rock, boulders, and organic debris underground that differed substantially from whatwas represented in the contract documents while performing earthwork activities on the project. Appellant also alleges that it encountered underground low voltage sensorwires and related utilities that were damaged and repaired during excavation. Appellant asserts that these differing site conditions impactedthe project schedule and it incurred additional costs beyond what it reasonably expected when it submitted its bid.

FAR 52.236-2, DIFFERING SITE CONDITIONS (APR 1984), recognizes two types of differing site conditions that entitle a contractorto an equitable adjustment under the contract. Underparagraph (a)(l), a Type 1differing site condition consists of "subsurface or latentphysical conditions at the site which differ materially from those indicated" in the contract. Toprevail on a Type 1differing site condition claim, a contractorhas the burden to show that:
(1) [T]he condition indicated in the contract differs materially from those actually encountered duringperformance; (2) the conditions actually encountered were reasonably unforeseeable based on all information available to the contractor at the time ofbidding; (3) the contractor reasonably relied upon its interpretation ofthe contract and contract-related documents; and (4) the contractorwas damaged as a result ofthe material variation between expected and encountered conditions. 

### Optimum Services, Inc., ASBCA No. 58755, 15-1 BCA

### ii 35,939 at 175,654 (citing 

### StuyvesantDredging Co. v. UnitedStates, 834 F.2d 1576, 1581 (Fed. Cir. 1987); 

### Comtrol, Inc. v. UnitedStates, 294 F.3d 1357, 1362 (Fed. Cir. 2002)). What is indicated in the contract does not need to be explicit or specific but must contain "reasonably plain
orpositive indications in the bid information orcontract documents that such subsurface conditions would be otherwise than actually found in contractperformance." 

### P.J Maffei


### 8Bldg. Wrecking Corp. v. UnitedStates, 732 F.2d 913, 916 (Fed. Cir. 1984) (quoting PacificAlaska Contractors, Inc. v. UnitedStates, 436 F.2d 461, 469 (Ct. Cl. 1971)). Under paragraph (a)(2), a Type 2 differing site condition consists of"unknownphysical conditions at the site, ofan unusual nature, which differ materially from those ordinarily encountered and generally recognized as inhering in work ofthe character provided for in the contract." To assert a Type 2 differing site condition, "the unknown physical condition must be one that could not be reasonably anticipated by the contractor from his study ofthe contract documents, his inspection ofthe site, and his general experience[,] if any, as a contractor in the area." Randa/MadisonJoint Venture Ill v. Dahlberg, 239 F.3d 1264, 1276 (Fed. Cir. 2001) (quoting Perini Corp. v. UnitedStates, 381F.2d403, 410 (Ct. Cl. 1967)).

What is indicated in the contract is a matter ofcontract interpretation. HB. Mac, Inc. v. UnitedStates, 153 F.3d 1338, 1345 (Fed. Cir. 1998). As to its first differing site condition allegation regarding the large rocks, boulders, and organic debris encountered, appellantheavily relies on a sentence in the government's response to a pre-award inquiry that states "There is no expectation to have significant over-excavation or to haul this material off' (SOF 

### ii 9), and concludes that it is entitledto an equitable adjustment because significant overexcavation and "haul off' did occur. However, we do not read this sentence in isolation when interpreting the terms ofa contract; instead contract interpretation involves reading the contract as a whole and giving reasonable meaning to all ofits parts. NVTTechnologies, Inc. v. UnitedStates, 370 F.3d 1153, 1159 (Fed. Cir. 2004). The preceding sentence in the government's response states that the "[s]ite consists ofspoil material from original Dam construction" (SOF 

### ii 9). These two sentences were in response to a question that asked whether woody debris noted in the boring log would require "haul[] off' (id.). Hence, significant overexcavation and "haul off'were not expected for spoil material at the site indicated in the contract's boring logs. However, the record does not show, nor can we conclude without further development of the record, whetherthe large rocks and organic debris appellant alleges it encountered differed from "spoil material" as indicated in the contract's boring logs, orwere otherwise notreasonably anticipated, so as to support a Type 1differing site condition. Nor does the record before us sustain the conclusion that appellant encountered conditions ofan "unusual nature" so as to support a Type 2 differing site condition. Therefore, appellant is not entitled tojudgment as a matter oflaw and summaryjudgment is denied.

With regard to its second differing site condition allegation regarding underground
sensor wires and utilities, appellant contends that it should not be responsible for the damage and repair ofthese wires and utilities it encountered because it relied on a drawing which did not disclose theirpresence. Further, appellant alleges that the government knew the location ofthe previously installed wires and utilities and failed to disclose this information to appellant. (App. mot. at 5-6) The government contends that appellant failed to meet certain contract requirements in connection with locating and verifying underground utilities whenperforming excavation activities on the project
9(gov't opp'n at 10). We cannot conclude, without further development ofthe record, what subsurface sensor wires and utilities were indicated in the drawing at issue and whether the conditions appellant alleges it encountered differed materially, whether the conditions encountered were "unusual," and whether contractrequirements were metby appellantrelated to utility location procedures priorto performing excavation activities. There are genuine issues ofmaterial fact precluding entry ofsummaryjudgmenton this differing site condition issue. To the extent that appellant seeks recovery on an alternative theory basedupon the doctrine ofsuperior knowledge, the record currently does not support such a determination. Delays

- Field Office Overheadand UnabsorbedHome Office Overhead Costs

In its motion, appellant alleges that the government is solely responsible for project delays including, among otherthings, failing to provide accurate designs, specifications, and other information necessary for contract performance, and failure to timely approve contract modifications (app. mot. at 6-7). Accordingto appellant, these impacts entitle it to field office overhead costs under the contract and unabsorbed home office overhead costs calculated based upon the Eichleay formula as enumerated in Eichleay Corp., ASBCA No. 5183, 60-2 BCAii 2688. To prove entitlement for a compensable delay, "appellant must showthat the government was responsible for specific delays; overall project completion was delayed as a result; and any government-caused delays were not concurrent with delays within appellant's control." Versar, Inc., ASBCANo. 56857 etal., 12-1 BCAii 35,025 at 172,128. Additionally, a contractormust demonstrate that work was suspendedputting it on standby to recoverEichleay damages. P.J. DickInc. v. Principi, 324 F.3d 1364, 1371 (Fed. Cir. 2003); KBJ, Inc., ASBCANo. 58512, 16-1BCAii36,289 at 176,983; B. 

### V. Construction, Inc., ASBCA No. 47766 etal., 04-1 BCAii 32,604 at 161,359. Appellant asserts that a 13 September2011 letter from the government establishes that the government failed to convey certain information to appellant in connection with work under the Reference No. ROOO 13 modification, causing delays to the project schedule. According to appellant, this omission created uncertainty as it could not begin the modification work until November 2011, and actual completion ofall contract work did not occur until 27 March 2012, well beyond the completion date of3 October 2011 granted in the modification. (App. mot. at 7, 9) Appellant also asserts that demobilization ofits field office was not completed until 28 November 2011 and that it continued to incur the cost of on-site management from 28 November 2011to27 March 2012 (app. mot. 10-11). The government argues that its letter did not acknowledge that it is the sole cause ofthe alleged delays and indicated that extratime was already provided in the modification to account for the omitted information (gov'topp'n at 7-8). The government contends that appellant is not entitled to field office overhead costs because appellant's quality control reports in the record only substantiate work on 19 days between 23 August 2011 and 23 March 2012 (GIMF at 8, ii 3.b.iv.1.a).

10Drawing all reasonable inferences in favor ofthe nonmovant, here the government,
we conclude that genuine issues ofmaterial fact existboth as to the cause(s) and the duration ofthe delay. Material facts in dispute include, but are not limited to: whether the government's actions or inaction surroundingthe Reference No. R00013 modification are the sole cause for the alleged performance delays; whether the governmentprovided appellant with defective plans and specifications that affected appellant's ability to complete performance ofthe modification work within schedule; and whether completion ofthe modification work correspondingly delayed completion ofother outstanding CLINs in the contract. Moreover, the record does not contain sufficient evidence that appellant was on standby throughout the alleged delay period, a required element for recovering Eichleay damages. Therefore, appellant is not entitledto summaryjudgment. ConsultingFees andMiscellaneous

The costs ofprofessional and consultant services are generally allowable when reasonable in relation to the services rendered and not contingent upon recovery ofthe costs from the government. FAR31.205-33. CRI's REA includes $15,000 in expert consulting fees (SOF**~** 18). There is not sufficient evidence in the record ofeitherthe services performed orthe payment made for these services to allow us to conclude that CRI is entitledto recover for these costs. Nor are we able to conclude that CRI is entitled to compensation for markup andbonding costs and taxes without further development of the record. Therefore, appellant is not entitled tojudgment as a matter oflaw and summaryjudgment is denied.

CONCLUSION

Forthe reasons stated above, CRI's motion for summaryjudgment is denied.

Dated: 9 June 2016

(Signatures continued)

11I concur

# ~~·- N. STEMPLER Administrative Judge Acting Chairman Armed Services Board ofContractAppeals I concur

# ~ RicJiw SHACKLEFORD Administrative Judge Vice Chairman Armed Services Board ofContract Appeals

I certify that the foregoing is a true copy ofthe Opinion and Decision ofthe Armed Services Board ofContractAppeals in ASBCANo. 59531, Appeal ofColumbia State Bank (formerly Appeal ofCastle-Rose, Inc.), rendered in conformancewith the Board's Charter.

Dated:

12 JEFFREY D. GARDIN Recorder, Armed Services Board ofContract Appeals