ARMED SERVICES BOARD OF CONTRACT APPEALS 

Appeals of -- ) 

) 

CDM Constructors, Inc. ) 

) 

Under Contract No. W912PL-12-C-0022 ) 

APPEARANCES FOR THE APPELLANT: 

APPEARANCES FOR THE GOVERNMENT: 

ASBCA Nos. 60454, 60455, 60669 

Bret S. Wacker, Esq. 

Jeffrey M. Gallant, Esq. 

Emily J. Baldwin, Esq. 

Clark Hill PLC 

Detroit, MI 

Michael P. Goodman, Esq. 

Engineer Chief Trial Attorney 

John F. Bazan, Esq. 

Gilbert H. Chong, Esq. 

Brian M. Choe, Esq. 

Engineer Trial Attorneys 

U.S. Army Engineer District, Los Angeles 

OPINION BY ADMINISTRATIVE JUDGE SWEET 

Appellant CDM Constructors, Inc. (CDM) 1 appeals the decision of the 

contracting officer (CO) denying its request for an equitable adjustment (REA), and the 

deemed denial of an REA. All three appeals concern the design and construction of a 

water treatment plant (WTP). 2 

ASBCA No. 60454 addresses the WTP's evaporation ponds (EPs), alleging that 

CDM is entitled to an equitable adjustment and delay damages. In particular, CDM 

alleges that the Army Corps of Engineers (Corps) constructively changed the contract 

by compelling it to include one backup EP, to use a three million gallon per day (mgd) 

average daily flow (ADF), and to use a 0.8 pan evaporation coefficient only if the 

maximum water depth was three feet or less. (App. br. at 44-53)3 The Corps argues 

1 CDM Constructors, Inc. 's parent company was CDM Smith. CDM Smith was 

responsible for design, and CDM Constructors, Inc. was responsible for 

construction (tr. 1/38). We refer to CDM Constructors, Inc. and CDM Smith 

collectively as "CDM." 

2 This decision only addresses entitlement. 

3 The ASBCA No. 60454 complaint also alleges that there was a cardinal change, 

defective specifications, and breach of a covenant of good faith and fair dealing 
that the contract required those design elements (gov't br. at 22-24 ). For the reasons 

discussed below, the Corps is correct about the backup EP, but not the ADF, 

evaporation coefficient, and water depth. Therefore, CDM is entitled to an equitable 

adjustment for any increased costs incurred as a result of having to use the Corps' 

ADF, evaporation coefficient, and water depth, but not as a result of having to provide 

a backup EP. 

ASBCA Nos. 60455 and 60669 address the standby generator (generator), 

alleging that CDM is entitled to an equitable adjustment under the Changes clause 

because the contract contained defective specifications.4 In particular, CDM alleges that 

the Corps improperly rejected its design, which followed concept drawings in the 

contract. (App. br. at 53-58) The Corps responds that the contract did not require CDM 

to follow the concept drawings, which, in any event, were trumped by conflicting 

contract provisions. For the reasons discussed below, CDM is correct. Thus, CDM is 

entitled to an equitable adjustment for any increased costs incurred as a result of the 

defective specifications. 

FINDINGS OF FACT 

I. Facts Common to All Appeals 

1. On May 24, 2012, the Corps issued Request for Proposal No. W912PL-12-R-0018 

(0018 RFP), for the design and construction of a WTP at Fort Irwin, California (R4, tab 9; 

tr. 1/43, 4/126). 

2. Under the 0018 RFP, it was CDM's responsibility to "design and construct 

the [WTP] as described in the Request For Proposal (RFP) Documents contained 

herein" (R4, tab 9 at 1, 729).5 The RFP documents: 

(60454, compl. ,r,r 53-66). However, CDM abandoned those allegations by 

failing to raise them in its post-hearing brief. United Launch Services, LLC, 

ASBCA No. 56850 et al., 16-1 BCA ,r 36,483 at 177,765 (failure to address 

allegations from pleadings in post-hearing brief equated to abandonment of the 

issue). 

4 The ASBCA Nos. 60455, 60669 complaint also alleges that there was a non-disclosure of 

superior knowledge, mutual mistake, and breach of the covenant of good faith and 

fai,r dealing (60455, 60669, compl. ,r,r 41-63). However, CDM abandoned those 

allegations by failing to raise them in its post-hearing brief. United Launch, 16-1 

BCA ,r 36,483 at 177,765. 

5 Citations to the Rule 4 files are to the consecutively-numbered pages unless 

otherwise indicated. 

2 
1 

[D]escribe[] the design work that shall not be changed, and 

shall be included in the construction documents. All 

remaining design work shall be performed by the 

Contractor based on the design criteria as required by the 

RFP. No deviations from the criteria will be allowed 

unless prior approval is obtained from the Contracting 

Officer's Representative. 

(Id. at 1, 731-32) In particular, "General Design Requirements are contained in 

[section 01 10 10], with Specific Design Requirements .. .identified in" appendix A (id. at 

1,729). Section O 1 10 10 described "the requirements for appearance, function, materials, 

and types of construction in sufficient detail to enable engineering and design to be 

completed by the Contractor" (id. at 1,731). Appendix A "is intended to guide the 

completion of the design by establishing existing conditions, and desired character, 

appearance, and function of the new construction" (id. at 1,730). Thus, section 01 10 10 

and appendix A "shall define the design and performance criteria" (id. at 1,732). 

3. Appendix X contained for information only (FIO) concept drawings from 

CH2M Hill Constructors, Inc. (CH2M Hill)6 and Southern California Edison (SCE)7 

(R4, tab 9 at 1,731, 6,679, 7,113), and stated: 

Information in appendices below [including appendix X] 

that are noted for information only (FIO) represent studies, 

analyses, and designs previously developed for this project. 

This information is made available to the contractor for its 

use without any warranty of usefulness or suitability of 

purpose.... Drawings and designs included in FIO 

appendices shall NOT be considered "Drawings of Record" 

or "For Construction". As the designer of record, all design 

requirements are the responsibility of the contractor. 

(Id. at 1,730) Similarly, appendix A stated that: 

The concept drawings of Appendix A and this 

specification section indicate processes required by the 

DD1391 as well [as] additional requirements. These 

concept drawings indicate estimated relationships and 

approximate sizes of individual components for the 

treatment facility. Drawings have been provided for 

6 CH2M Hill was the privatized water operator for Fort Irwin (tr. 1/47). 

7 SCE was the electrical utility serving parts of Southern California, including Fort Irwin 

(tr. 2/10). 

3 
information only (FIO) from a 2009 partial design by 

CH2M HILL Constructors, Inc. of the process required 

that was based on a Design/Build/Operate business 

process. See Appendix X. The design and FIO drawings 

provided do not meet the full requirements of this 

solicitation. The actual sizing of the tanks, pumps, piping, 

buildings, etc. shall be determined by the Contractor 

during his design. 

(R4, tab 10 at 9,773) 

4. Section 01 10 10 stated that "[t]he drawings and details provided by SCE 

shall be utilized for pricing of this effort" (R4, tab 9 at 1,785). 

5. Section 01 10 10 also contained the following Order of Precedence clause: 

Where the various elements of the RFP are in conflict, the 

following priority shall be used to establish precedence, 

unless specifically noted otherwise: 

a. Appendices A - I and Technical Specifications, where 

furnished. 

b. Section 01 10 10 DESIGN REQUIREMENTS, GENERAL. 

c. Drawings. 

(R4, tab 9 at 1,732) 

6. On August 8, 2012, the Corps awarded Contract No. W912PL-12-C-0022 

(0022 contract) to CDM based upon the 0018 RFP (R4, tab 7). 

7. The 0022 contract contained the Federal Acquisition Regulation (FAR) 

52.243-4, CHANGES (JUN 2007), clause under which the Corps had to provide CDM 

with an equitable adjustment if there was any written or oral direction, instruction, 

interpretation, or determination from the CO that caused a change (R4, tab 7 at 696). 

II. Facts Unique to the EvaporatiorJ Ponds Appeal (ASBCA No. 60./54) 

A. Background 

8. A WTP produces wastewater. Because of Fort Irwin's isolated location in 

the desert, there were limited options available for the disposal of that wastewater. 

(Tr. 4/127) However, due to that desert location, it was advantageous to remove the 

liquid component of the wastewater through natural evaporation in EPs, and then to 

haul the remaining solid waste to a landfill. Therefore, the Corps decided to use EPs 

4 
to deal with the wastewater at Fort ltwin. (App. supp. R4, tab 134 at 173; tr. 1/61-62, 

86-87) 

9. The sizing of the EPs must take account of the fact that the net evaporation 

rate-i.e., the rate at which water evaporates from the EPs minus the rate at which 

water enters the EPs as precipitation-must equal or exceed the rate at which 

wastewater flows into the EPs (inflow) over time (tr. 1/92-93, 2/183, 204, 4/129-30). 

10. The measurement of the EPs' likely evaporation rate starts with a 

determination of the pan evaporation rate. The pan evaporation rate measures the rate at 

which water in a standardized test pan evaporates. That rate accounts for climatic factors 

at that particular location. However, different bodies of water will experience different 

evaporation rates at the same climatic location based upon their size, depth, salinity, and 

water temperature. To account for those characteristics, the pan evaporation rate is 

multiplied by an evaporation coefficient. (R4, tab 4 at 32-33; tr. 1/89-91) 

11. On the other side of the equation, two factors-the ADF and the recovery 

rate-determine the likely inflow. The ADF is the likely average rate per day at which 

water enters the WTP, which is determined by user demand. That ADF is multiplied 

by the remainder of the recovery rate-which is the percentage of the water entering 

the WTP that leaves the WTP as treated water-to determine the likely inflow rate. 

(R4, tab 4 at 31; tr. 1/91-92) 

12. EPs require very little maintenance (tr. 1/85). While EPs can leak, such leaks 

are rare and usually only take a few days to repair. Moreover, it is highly unlikely that 

the EPs will fail completely during the life of the WTP. (Tr. 2/184, 3/30-34) However, 

if the EPs fail or cannot be used for an extended period of time, the result would be 

catastrophic for the WTP and Fort IIWin. Because net evaporation must equal or exceed 

inflows over time, the WTP would have to be shut-down in order to avoid an overflow if 

the EPs did not adequately function over an extended period of time. That, in turn, 

would require Fort IIWin to close. To compound the problem, it would be difficult for 

the Corps to obtain funding for any major repairs. (Tr. 2/204, 4/129-30) 

B. The Contract Documents 

1. Evaporation Pond Sizing and a Standby Evaporation Pond 

13. The contract documents required CDM to design and build EPs (R4, tab 9 

at 2,107). "Actual plant configuration shall be determined by the Contractor" (id. 

at 2,113). 

14. However, the Corps provided concept design requirements. The contract 

documents stated that 

5 
Table 8 provides the Government's conceptual design unit 

requirements. The Government's concept may be 

incomplete and the Contractor shall provide a complete 

system. What is identified in Table 8 is the Government's 

expected minimum unit operations necessary. The 

Contractor shall meet the quantities in Table 8 as a 

minimum but additional units, if required to meet the 

criteria herein, shall be provided. 

(R4, tab 9 at 2, 113) Table 8 indicated "NUMBER OF PONDS ... 2 + 1 STANDBY.'' 

It did not mention standby capacity. (Id. at 2, 116)8 

15. The contract documents also indicated that "[a] total of approximately 11 acres 

is allowed for the evaporation ponds as shown in the current layout, without prior approval 

from the [contracting officer representative (COR)]. Any requirement above this area will 

require Government approval and likely revision to the Environmental Assessment (EA) 

before design approval is granted." (R4, tab 9 at 2107)9 Obtaining a revision to an EA was 

a bureaucratic hurdle that could delay the project (tr. 1/116, 4/139). 

16. The CH2M Hill drawings showed three EPs covering a total area of 10.8 acres 

(R4, tab 9 at 6,681, 6,688, 7,077-80, 9,602; app. supp. R4, tab 175). 

17. Reviewing the CH2M Hill drawings in conjunction with Table 8-which was 

derived from the CH2M Hill drawings-a reasonable contractor would have realized that 

one of the three EPs shown in the CH2M Hill drawing was not to be used in day-to-day 

operations. Table 8 showed an overall recovery rate of 99.6 or 99.7 percent. (App. supp. 

R4, tab 101 at 8-9; tr. 4/116, 141)10 At that recovery rate, at most, only two of the three 

8 The WTP also generates a sludge of lime, which is siphoned off, and pumped to lime 

sludge lagoons. In the lagoons, the water evaporates from the sludge, and the 

Corps hauls the solids to a landfill (tr. 1/137-38). Wastewater also is pumped 

from the lime sludge lagoons to the EPs (tr. 3/92). Table 8 required 1 + 1 

standby lagoon. It also required standby units for other items, such as cartridge 

filters, electro dialysis reversal (EDR) membrane treatments, treated water pump 

stations, lime softening contact clarifiers, lime softening filtrations, reverse 

osmosis (RO) feed water storage and pump stations, RO cartridge filters, RO 

systems, and concentrate equalization basins. (R4, tab 9 at 2,114-17) 

9 The EA is state approval to build on a certain area of land (tr. 1/115, 2/175). 

10 To achieve that recovery rate-which was very high (tr. 1/44)-the Corps 

contemplated using several consecutive processes to extract usable water. 

Table 8 delineated the recovery rate for each process. Table 8 shows that the 

EDR provided a 92 percent recovery rate. Wastewater then went to RO stage 1, 

which provided an additional 58.8 percent recovery rate. Wastewater then went 

6 
EPs shown on the CH2M Hill drawings would be needed to ensure that inflows equaled 

net evaporation (supp. R4, tab 101 at 8-9; tr. 4/127, 170). 11 

18. The 0018 RFP initially required two assessments to evaluate the actual 

daily demand performance and the maximum daily demand performance. Reflecting 

the 99.6 or 99.7 percent recovery rate, the 0018 RFP stated that 

[T]he Contractor shall demonstrate that the design of the 

WTP material/mass balance achieves a minimum of99.6% 

recovery efficiency at 6.0 MGD at the given requirements 

for raw water quality range and treated water quality 

requirements. For the range of design flows (2.0 to 2.5 

MGD annual average daily flow; 0.8 MGD minimum daily 

flow; and 5.4 maximum daily flow), the WTP 

material/mass balance design shall be designed to exceed a 

minimum of99% recovery efficiency. 

(R4, tab 9 at 2,082; tr. 4/178) 

19. However, the problems arose in this case from the fact that the Corps 

decided to reduce the recovery rate during the solicitation phase, as reflected in 

Amendment 8 (tr. 4/159). Amendment 8 amended the above paragraph to read that: 

[T]he Contractor shall demonstrate that the design of the 

WTP material/mass balance achieves a minimum of 99-=6% 

recovery efficiency at 6.0 MGD at the given requirements 

for raw water quality range and treated water quality 

requirements. For the raage of design flows (2.0 to 2.5 

~4GD 8:BfH:lal aYerage daily flow; 0.8 ~4GD m-inimam daily 

flo~;.r; and 5. 4 maximam daily flow), the '.VIP 

to the RO stage 2, which provided an additional 39.5 percent recovery rate. 

Wastewater then went to a mechanical evaporator, which provided an 

additional 85 percent recovery rate. Taken together, that provided a recovery 

rateofabout99.7percent. (Supp. R4, tab71 at2,114-16, tab 101 at8-9; 

tr. 4/176, 181) 

11 Dr. Beth Gross-CDM's EP expert-opined that the CH2M Hill drawings could not 

be based upon a 99. 6 or 99. 7 percent recovery rate because, at that recovery 

rate, only one of the three EPs would be needed to balance inflows and net 

evaporation (app. supp. R4, tab 180 at 539, tab 187 at 579; tr. 3/18, 72-74). 

However, that merely shows that CH2M Hill may have conservatively designed 

the EPs with excess capacity. 

7 
materiatrmass ba:10.flee desigt1: sha:11 be desigt1:ed to exeeed a 

miaimam of 99% reeo:very effieieaey. 

(R4, tab 10 at 10,353) (Strikeout in original) On the one hand, reducing the recovery 

rate benefitted contractors by reducing the risk and cost of designing such an efficient 

WTP. On the other hand, reducing the recovery rate increased the amount of 

wastewater flowing into the EPs. That meant that the contractor had to modify another 

EP parameter-such as increasing the EP surface area-in order to maintain a balance 

between inflows and net evaporation. (App. supp. R4, tab 153 at 236, tr. 1/44, 

4/178-79, 211) 

2. Average Daily Flow 

20. The contract documents did not require CDM to use any particular ADF 

(R4, tab 9). 

21. The contract documents stated that the CH2M Hill drawings were based 

upon a 3.0 mgd ADF. However, the contract documents stated that "[a]s designer's 

collect data and develop the actual system, all numerical data used to support the 

design shall be from the Contractor's inquiries and research." (R4, tab 9 at 2,107) 

22. The contract documents stated that the current ADF was 2.44 mgd, and that 

the ADF in 2010 was 2.26 mgd (R4, tab 9 at 1,727, 4,332). Dr. Beth Gross-CDM's 

EP expert-opined that it was industry standard to use historic flow data to develop 

the ADF (app. supp. R4, tab 180 at 540, tab 187 at 576; tr. 3/40, 43-44, 67-68). We 

find this uncontested testimony credible. 

23. As noted above, Amendment 8 eliminated one reference to the 2.0 to 2.5 

mgd ADF. However, it continued to provide that, in measuring actual daily demand 

performance, "the flowrates ranges include: Average flow in the range of 2.0 to 2.5 

MGD for well production rates; minimum flows at 0.8 MGD[;] and maximum 

flowrates near 5.4 MGD." (R4, tab 10 at 10,354) 

3. Evaporation Coefficient and Water Depth 

24. The contract documents did not require CDM to use any particular 

evaporation coefficient for any particular water depth (tr. 4/192). 

8 
C. Performance 

25. After award, CDM submitted several EP designs, including a 10 percent 

design, a 65 percent design, and a 100 percent design (R4, tab 4 at 109). CDM used 

the CH2M Hill drawings to create its EP design, assuming that none of the EPs were 

backup EPs (tr. 2/168). 

26. Dr. Gross opined that it was standard industry practice to construct WTPs 

without a backup EP. Dr. Gross testified that she was unaware of any other WTPs that 

have used a backup EP. (App. supp. R4, tab 180 at 537; tr. 3/25-26) However, 

Dr. Gross conceded that she "could not find any reference in the technical literature to 

a standby pond" (app. supp. R4, tab 180 at 541). Nor had she ever seen another 

contract that has used the term standby EP (tr. 3/116). We find that this term as used 

within the trade does not differ from the standard dictionary definition found in the 

New Oxford American Dictionary, 1699 (3rd ed. 2010), discussed in greater detail 

below. 

27. The 65 percent and 100 percent designs used a 3.0 mgd ADF, a five-foot 

maximum water depth, a three-foot average water depth, and a 0.8 evaporation 

coefficient (R4, tab 4 at 109). 

28. On March 6, 2013, CDM submitted a technical memorandum explaining its 

design. Regarding the evaporation coefficient and water depth, the March 6, 2013 

memorandum explained that 

In general, a conservative factor of 0. 7 is typically used to 

convert pan data to freshwater "lake" evaporation rates, 

whereas greater coefficients are used for smaller, shallower 

ponds. This coefficient generally ranges from 0. 7 to 0.95, 

depending on the size of the pond or lake ( see attached 

[pages] from "Design Characteristics for Evaporation 

Ponds in Wyoming"). For purposes of sizing the 

evaporation ponds, a conservative pan evaporation 

coefficient of 0.8 was applied by CDM Smith to account 

for the smaller pond size, shallow depths (generally less 

than 3 feet) and warm water temperatures (including 

average discharge temperature to the EPs of 90 [ degrees 

Fahrenheit]. 

(R4, tab 47 at 14,891) The Design Characteristics for Evaporation Ponds in Wyoming 

report referenced above indicated that a reasonable coefficient for EPs in semi-arid 

conditions was 0.7 to 0.95, depending upon EP size (id. at 14,902). The March 6, 2013 

9 
memorandum proposed using a five-foot maximum water depth and a three-foot average 

water depth (id. at 14,890-93). 

29. The Corps rejected the 10 percent design, the 65 percent design, the 

100 percent design, and the March 6, 2013 technical memorandum (supp. R4, tab 105 

at 73; tr. 4/123, 133-34). In particular, the Corps rejected the evaporation coefficient. 

Moreover, the Corps rejected the designs and memorandum because they lacked a 

backup EP-meaning an EP that was operational, but not in use unless or until there was 

an emergency. 12 (R4, tab 40; supp. R4, tab 105 at 73, tr. 1/112-13, 118, 2/194) 

30. Converting one of the three EPs to a backup EP, while maintaining three 

equally-sized EPs, would have required CDM to increase the surface area to 17.2 

acres, which would have exceeded the EA (app. supp. R4, tab 175; tr. 1/113-15). 

31. After several discussions, CDM submitted a revised 100 percent design in a 

May 17, 2013 memorandum (R4, tab 37; tr. 1/117-21). 

32. The May 17, 2013 memorandum proposed three EPs-with one being 

rotated out of service every year-on 11 acres. To achieve those parameters, CDM 

reduced the ADF from 3.0 mgd to 2.25 mgd. The justification the May 17, 2013 

memorandum offered for using the 2.25 mgd ADF was that it was "mid '2.0 to 2.5 

MGD' from Appendix A." (R4, tab 36 at 14,503-07; tr. 1/121-24) Dr. Gross opined 

that it was reasonable for CDM to decrease the ADF from 3.0 mgd to 2.25 mgd 

because of the multiple measures of conservativism that the Corps added to the 

contract (app. supp. R4, tab 180 at 540, tab 187 at 576; tr. 3/40, 43-44, 67-68). The 

proposed evaporation coefficient was 0.8. While the proposed maximum water depth 

was five feet, the May 17, 2013 memorandum indicated that the water depth never 

actually would exceed three feet (R4, tab 35 at 14,503-07). 

33. The Corps responded to the May 17, 2013 memorandum in two letters 

dated May 20, 2013, and May 22, 2013. Those letters questioned the lack of a standby 

EP, the ADF, and the evaporation coefficient relative to the water depth. (R4, tabs 33, 

35) Regarding the ADF in particular, the letters explained that: 

12 CDM often refers to an operational, but not in use, EP as a "spare" EP (see, e.g., 

app. br. at 3). However, as CDM correctly recognizes, the term "spare" is 

interchangeable with the term "backup" (id. at 31, 50; see also ROGET'S INT'L 

THESAURUS, 822, 1222 (4th ed. 1977) (identifying both the term backup and 

spare as being synonymous with the term substitute)). For ease of reference 

and consistency, we use the term backup EP-instead of spare EP-to describe 

the required EP that is operational, but not in use except in an emergency. 

10 
The contract states that the current average daily flow is 

2.44 mgd and the average daily flow range of well 

production is 2.0 to 2.5 mgd. This is based on historical 

data for the Water Treatment Plant (WTP) and not listed as 

the design capacity to support future demands. WTP 

design manuals and regulatory permits .. .indicate that new 

treatment systems be sized based on future demands. 

(R4, tab 35 at 14,498-99) Regarding the evaporation coefficient and water depth in 

particular, the letters explained that "[s]ince the 0.8 coefficient is assumed based on 

shallow depths (generally less than 3 feet) being maintained [in the] ponds, and the 

design actually reaches 5 foot depth without precipitating solids, it is questionable that 

the 0.8 coefficient would still be appropriate" (R4, tab 33 at 14,494). Dr. Gross opined 

that CDM's use of a 0.8 evaporation coefficient for EPs whose water depth generally 

was less than three feet-but occasionally was up to five feet-was appropriate, and 

that the Corps' directive that an evaporation coefficient of 0.8 could be used only for 

water depths of three feet or less was not supported by technical data or scientific 

evidence (app. supp. R4, tab 180 at 539; tr. 3/38-40). We find this testimony credible. 

34. On May 22, 2013, CDM sent the Corps a notification of change. In the 

notification of change, CDM stated that: 

The essential issues center on the insistence by the 

Government that the appropriate design parameters are: 

3 MGD Average Daily Flow (ADF) and that the 

Government's definition of "standby" does not allow for 

use of the "standby" pond during routine maintenance and 

cleaning of a pond. This is inconsistent with the accepted 

engineering definition of 2 + I Standby. Also, the 

Government is not accepting our evaporation rate design 

factors that are based upon site specific data and literature 

describing standard industry practices. 

(R4, tab 34 at 14,496) 

35. The Corps responded by letter dated May 29, 2013. The May 29, 2013 

letter "constitutes formal direction" to meet three relevant design elements. First, the 

Corp directed CDM to include one backup EP. Second, the Corps directed CDM to 

use a 3 mgd ADF. Third, the Corps directed CMD to use: 

Evaporation pond factors of 0.8 for pan evaporation 

coefficient, if operated with smaller pond size and shallow 

depth of 3' or less, and actual calculated salinity correction 

11 
factor (both as stated in 17 May Evaporation Ponds Design 

Analysis memo). If design size or operation varies, please 

vary factors as necessary. 

(R4, tab 32 at 14,492) 

36. CDM responded by submitting a final design package. CDM reduced the 

surface area required for the EPs from 17.2 acres to 13.5 acres by revising its design to 

contain 8 EPs that would be in day-to-day use and one backup EP. Doing so, CDM 

was able to meet the Corps' ADF, evaporation coefficient, and water depth 

requirements. (R4, tabs 172, l 75~ tr. 1/129-30) The 13.5 acres did not require an EA 

amendment because CDM moved other equipment to keep the entire WTP within the 

EA (tr. 1/133, 4/139-40). 13 

37. The Corps accepted the final design package (tr. 1/136). 

38. The ADF has decreased over the last five years. The year prior to the 

hearing, the ADF was 1.7 mgd. (Tr. 1/142-43) 

III. Facts Unique to the Generator Appeals (ASBCA Nos. 60455 and 60669) 

A. The Southern California Edison Electrical Service Requirements 

39. In 2006, SCE published the Electrical Service Requirements (ESR). The 

ESR were "issued for the guidance and assistance of electrical contractors ... engaged in 

the installation and design of electrical service wiring and service equipment." (R4, 

tab 51 at 15,022) The ESR were guidelines with which SCE customers in Southern 

California had to comply in order to receive services. However, SCE often waived the 

ESR. (Tr. 2/64-65, 108-10, 4/32) 

40. Paragraph 12 of the ESR stated that: 

When a customer has a standby generator to supply all of 

their load during an Edison system outage, the generator 

13 In the final design, there were only two lime sludge lagoons, both of which were in 

use. Antonia Ortiz-the Corps' technical design manager and an expert in 

WTPs-testified that the Corps initially complained about both lagoons being 

in use, but "that just kind of fell by the wayside." Because liquid waste can go 

from the lagoons to the EP, the lagoons-unlike the EPs-are not a critical 

component whose failure will cause the WTP and Fort Irwin to shut down. 

CDM provided a backup unit for the other items for which Table 8 required a 

standby unit. (Tr. 1/133, 4/152) 

12 
shall be connected to the load by a double-throw switch or 

automatic relays and switches which will isolate the load 

from the Edison system before the generator is connected 

to the load. When the Edison service is re-energized, the 

generator will then be isolated from the load before the 

load is reconnected to the Edison system. 

(R4, tab 51 at 15,023) 

B. Contract Documents 

41. The contract documents required a standby generator connected to the 

normal site power by an automatic transfer switch (ATS) (R4, tab 9 at 2,161). The 

generator connection design had to satisfy two potentially relevant requirements. 

42. First, under appendix A, § 9.1.3, "[m]ultiple generators and transfer 

switches will be required when physical distances exceed 200 feet to load" 

(R4, tab 9 at 2,161). 

43. Second, section 01 10 10 provided that "[a]ll work shall be designed 

and constructed to meet all state and federal codes, standards and law" (R4, tab 9 

at 1,732). Similarly, section 01 10 10 stated that "[t]he applicable building codes 

and standards shall be used as the minimum criteria to develop the construction 

documents for areas of work not specifically defined" (id.). Regarding the 

electrical system in particular, appendix A stated that: 

(Id. at 2,159) 

All electrical equipment shall be installed in accordance 

with NFPA 70 (National Electrical Code), ANSI C2 

(National Electrical Safety Code), California's Energy 

Efficiency Standards for Residential and Nonresidential 

Buildings Title 24, Part 6, of the California Code of 

Regulations, all applicable UFC's, ETL's, TM's and other 

DOD and national standards as applicable to the system 

under consideration. 

44. The RFP initially contained the CH2M Hill drawings, but not the SCE 

drawings (tr. 1/146-47). The CH2M Hill drawings showed a primary 12 kilovolt (kv) 

network and a secondary 480 volt (v) network (tr. 1/160-61, 236, 2/22). According to the 

CH2M Hill drawings, electricity would come into the WTP from an SCE substation on 

the primary network during normal operations. After the electricity passed through an 

ATS and traveled along the primary network, transformers would step the voltage down 

13 
to 480v, so that the electricity could travel on the secondary network to where it was 

needed. If the A TS sensed that the power from SCE was interrupted, it would send a 

signal to the 480v generator to start. The generator was connected to a transformer, 

which increased the voltage to 12kv. The transformer then connected to the ATS, 

through which the electricity would flow to the primary network. The A TS ensured that 

electricity only came from one source at a time, and did not back feed from the generator 

onto the SCE system. (R4, tabs 136, 145; tr. 1/147-50, 218) 

45. There was a pre-bid request for information (RFI) regarding the CH2M Hill 

drawings from another offeror besides CDM. The RFI indicated that appendix A of 

the RFP "states 'Multiple generators and transfer switches will be required when 

physical distance exceed 200 feet to load.' The initial concept drawings by CH2M 

(90-E-501) indicate one generator which connected into the SCE distribution system. 

Please confirm that Appendix A takes precedence over the CH2M design." The RFI 

did not indicate that there was an actual conflict because it did not state that the 

physical distance from the generator to the load on the CH2M Hill drawing exceeded 

200 feet. The Corps' response did not acknowledge a conflict either. Rather, the 

Corps merely responded, "[p]lease see Section 01 10 10 paragraph 2.8 Conflicts in 

RFP Criteria for precedence required." (App. supp. R4, tab 148 at 220; tr. 2/54-55) 

46. Nor may it be inferred from the Corps' response to the RFI that it read the 

RFI as establishing that there was a conflict because, the same day that the Corps 

responded to the RFI, it amended the RFP to add the SCE drawings, which were 

substantially similar to the CH2M Hill drawings. By issuing drawings showing a 

single generator using a single ATS and primary network to distribute electricity after 

the RFI quoting appendix A,§ 9.1.3, the Corps demonstrated that it did not read the 

RFI as establishing that such a design conflicted with appendix A, § 9.1.3. (App. 

supp. R4, tab 152; tr. 1/146-47, 153-55, 2/16-19) 

47. That conclusion was correct. The SCE drawings were consistent with 

appendix A,§ 9.1.3 because the distance to the load was not an issue when using the 

primary network (tr. 4/47-48). Moreover, while the SCE drawings only showed one 

generator and one ATS, the distance from the generator to the A TS-which was the 

load-was only about 100 feet (app. supp. R4, tab 152; tr. 1/153-56, 2/16-20, 89-90). 

C. Pe,formance 

48. After award, CDM submitted a 10 percent electrical design. The design 

followed the concept drawings. In particular, the design-like the drawings-showed 

one generator connected to the primary network by one ATS. (R4, tab 6 at 294; app. 

supp. R4, tab 162; tr. 1/157-58, 2/95) However, the design did not contain any 

distance measurements. In particular, it did not include any measurement of the 

distance from the generator to the load (R4, tab 6 at 294; tr. 2/32, 4/54). 

14 
49. The fact that the concept drawings and 10 percent design showed the 

generator connected to the primaiy network did not conflict with ESR 112 because the 

drawings and the design showed the generator connected to the load with an A TS that 

isolated the load from the SCE system before the generator was connected to the load 

(tr. 1/227-28, 2/30, 71-72, 144, 146). 14 Indeed, it was reasonable to interpret the ESR 

in light of the SCE drawings because the SCE drawings constituted SCE applying its 

guidelines to this particular electrical system (tr. 1/232, 2/60, 127, 130). 

50. Representatives from CDM, the Corps, and SCE attended a meeting to 

discuss the 10 percent design. As the Corps subsequently documented, the SCE 

representative indicated at the meeting that 

The emergency generator will not be able to be installed as 

originally shown. At the time of the original drawing years 

ago it was not necessaiy to submit the information through 

the generation group. Per SCE's new standards this 

installation would have to be submitted to the generation 

group and this type of installation will not be accepted. 

The Corps did not mention ESR 1 12 or appendix A, § 9.1.3. (R4, tab 6 at 295) 

51. In. response, CD M recommended using the secondaiy network to feed 

electricity from the generator to two locations, each with an ATS. Using the 

secondary network raised concerns about the distance to the load. (Tr. 4/47-48) 

Moreover, the proposed design violated appendix A,§ 9.1.3 because one of the two 

locations at which the secondaiy network would feed into the load was more than 

200 feet from the generator. Nevertheless, the Corps approved the proposed design. 

(App. supp. R4, tab 166 at 398; tr. 1/162-63, 218, 2/27-29, 4/51) 

JV Procedural History 

52. Abe Nejad-CDM's scheduling expert-prepared a time impact analysis on 

Januaiy 27, 2014, which showed that the rejection of the EP caused a 51-day delay to the 

WTP completion date (app. supp. R4, tab 178; tr. 3/144-45) However, Mr. Nejad conceded 

that, if there was a Corps-caused delay and a CDM-caused delay in the EP design, then that 

would constitute concurrent delay that would not be compensable (tr. 3/199, 4/10). 

14 Derrick Collier-the Corps' electrical engineer for the project-testified that the 

10 percent design violated ESR 1 12 because "you can't utilize the primaiy 

distribution system and be isolated from it" (tr. 4/54). That testimony is 

inconsistent with ESR 112, which acknowledged that the load can be isolated 

from the SCE system by an ATS (R4, tab 51 at 15,023). 

15 
53. CDM subsequently submitted REAs regarding the EPs (R4, tabs 4, 29) and 

the generator (R4, tab 6). 

54. On July 22, 2015, CDM submitted a claim for changes in the EPs and the 

generator design (R4, tab 3). 

55. On May 6, 2016, the CO issued a final decision, rejecting the generator 

claim (R4, tab 2). The CO did not issue a final decision on the EPs claim, and that 

claim is deemed denied. 

56. These appeals followed. 

DECISION 

CDM has the burden of proving that there was a constructive change or a 

defective specification by a preponderance of the evidence. Amos & Andrews 

Plumbing, Inc., ASBCA No. 29142, 86-2 BCA ,r 18,960 at 95,738 (citing Teledyne 

McCormick-Selph v. United States, 588 F.2d 808 (Ct. Cl. 1978)). As discussed below, 

it has satisfied that burden in part, and has not satisfied it in part. 

I. Evaporation Ponds (ASBCA No. 60-15-1) 

In particular concerning the EPs, CDM has met its burden of showing a 

constructive change regarding the ADF, evaporation coefficient, and water depth, but 

has not met its burden regarding the backup EP. In order to establish that there was a 

constructive change, a contractor must show that: ( 1) an official compelled it to 

perform work not required under the terms of the contract; (2) the official directing the 

change had contractual authority to alter the contractor's duties unilaterally; (3) the 

official enlarged the contractor's performance requirements; and (4) the added work 

was not volunteered, but resulted from the official's direction. A/fair Dev. Co., 

ASBCA Nos. 53119, 53120, 05-2 BCA ,r 32,990 at 163,515. "Where as a result of the 

Government's misinterpretation of contract provisions a contractor is required to 

perform more or different work, or to higher standards, not called for under its terms, 

the contractor is entitled to equitable adjustments pursuant to the Changes Article, 

including extensions of time." Emerson-Sack-Warner Corp., ASBCA No. 6004, 61-2 

BCA ,r 3248 at 16,827. 

In determining what work a contract requires, "clear and unambiguous [ contract 

provisions] must be given their plain and ordinary meaning, and we may not resort to 

extrinsic evidence to interpret them." Coast Fed Bank, FSB v. United States, 323 F.3d 

1035, 1040 (Fed. Cir. 2003) (en bane) (citations omitted). "An ambiguity exists when 

a contract is susceptible to more than one reasonable interpretation." E.L. Hamm 

16 
& Assocs., Inc. v. England, 379 F.3d 1334, 1341 (Fed. Cir. 2004). "To show an 

ambiguity it is not enough that the parties differ in their respective interpretations of a 

contract term. Rather, both interpretations must fall within a ·zone of 

reasonableness."' NVT Techs., Inc. v. United States, 370 F.3d 1153, 1159 (Fed. Cir. 

2004). As we have held: 

Determining whether ... differing interpretations are 

reasonable begins with an examination of the plain 

language of the contract, construing the contract so as to 

effectuate its spirit and purpose giving reasonable meaning 

to all parts of the contract. In order to fall within the zone 

of reasonableness, a party's interpretation must be 

logically consistent with the contract and the parties' 

objectively ascertainable intentions. 

ECCI-C Metag, fl~ ASBCA No. 59031, 15-1 BCA ,r 36,145 at 176,418 (citations and 

quotations omitted). 

"[T]he language of a contract must be given that meaning that would be derived 

from the contract by a reasonably intelligent person acquainted with the 

contemporaneous circumstances." Hol-Gar Mfg. Corp. v. United States, 351 F.2d 972, 

975 (Ct. Cl. 1965). Thus: 

We must seek to put ourselves in the position of appellant 

at the time he bid on the contract, i.e., we must seek the 

meaning that would be attached to the language by a 

reasonably intelligent bidder in the position of appellant, 

who would be expected to have the technical and trade 

knowledge of his industry and to know how to read and 

interpret technical engineering specifications and perform 

construction work in accordance with such specifications. 

Adrian L. Roberson, db a Roberson Constn1ction Co., ASBCA No. 6248, 61-1 BCA 

,r 2857 at 14,915. 

""Trade practice and custom illuminate the context for the parties' contract 

negotiations and agreements." Metric Constn,ctors, Inc. v. NASA, 169 F.3d 747, 752 

(Fed. Cir. 1999). Before we can conclusively declare a contract ambiguous or 

unambiguous, we must consult the context-including trade practice and custom-in 

which the parties exchanged promises. However, a contracting party cannot invoke 

trade practice and custom to create an ambiguity where a contract was not reasonably 

susceptible to differing interpretations at the time of contracting. "Trade practice 

17 
evidence is not an avenue for a party to avoid its contractual obligations by later 

invoking a conflicting trade practice." Id. 

As discussed below, the contract unambiguously required a backup pond, but 

did not require a particular ADF or evaporation coefficient for a particular water depth. 

Thus, there was no constructive change regarding the backup EP, but there was a 

constructive change regarding the ADF, evaporation coefficient, and water depth. 

A. Backup Evaporation Pond 

There was not a constructive change when the Corps compelled CDM to 

provide a backup EP that was operational, but not in use except in an emergency 

because the plain language of the contract documents required CDM to provide at least 

one backup EP. Table 8 required at least one "STANDBY'' EP (finding 14). The 

dictionary definition of the word "standby" is "readiness for duty or immediate 

deployment. ... a person or thing ready to be deployed immediately, especially if needed 

as a backup in an emergency." NEW OXFORD AM. DICTIONARY, 1699 (3rd ed. 2010). 

Thus, by using the word standby to modify the word pond, Table 8 plainly required a 

backup EP that was operationally ready for duty, but not yet deployed unless or until 

needed for an emergency. 

CDM correctly argues that context and the parties' intentions may be more 

important than dictionary definitions in determining plain meaning (app. br. at 43); 

Metric ConstnJctors, 169 F.3d at 752. However, the context in which the parties used 

the term standby-namely the CH2M Hill drawings and Table S's recovery ratesconfirms that they intended the term standby to have its usual meaning as a backup. 

The CH2M Hill drawings showed three EPs, covering a total area of 10.8 acres 

(finding 16). When read in the context of the 99.6 or 99.7 percent recover rate 

provided for in Table 8-which was based upon the CH2M Hill drawings-a 

reasonably intelligent contractor would understand that at least one of the CH2M Hill 

drawings' three EPs was a backup EP (finding 17). 

As context, CDM points to the fact that three EPs capable of balancing inflows 

and net evaporation would not fit within the 11 acres for which there was an EA if one 

of the EPs was a backup EP (app. br. at 28-29; app. reply br. at 8-9). That argument 

incorrectly assumes that the contract documents limited CDM to three EPs. While 

Table 8 indicated that the number ofEPs was "2 + 1 STANDBY," the contract 

documents also stated that "[ w ]hat is identified in Table 8 is the Government's 

expected minimum unit operations necessary .... [A]dditional units, if required to meet 

the criteria herein, shall be provided." (Fin ding 14) Thus, nothing in the contract 

documents prohibited CDM from including more than three EPs in its design. And 

indeed, CDM ultimately was able to accommodate a backup EP within the EA by 

18 
using nine EPs (finding 36). As a result, the area available within the EA was 

consistent with a backup EP. 

Nor did the term standby have a customary meaning within the trade that differs 

from the dictionary definition. On the contrary, CDM's EP expert testified that she 

was unaware of any reference to the term standby EP in the technical literature or its 

use in any other contracts. Rather, she opined that it was not standard industry 

practice to construct EPs with a backup EP. (Finding 26) However, "evidence that 

some practitioners customarily accomplish tasks differently from the manner called for 

by the contract will not overcome the clear language of the contract." Metric 

Constructors, 169 F.3d at 752. 15 

CDM also argues that Table 8 merely required standby capacity in the EPs 

(app. br. at 45). That reading of Table 8 does not fall within the zone of 

reasonableness. Table 8 does not even mention capacity. Rather, the word standby 

modifies the word pond. (Finding 14) Thus, by its plain language, Table 8 required 

one standby EP; not any particular standby capacity. 

CDM also relies upon the Environmental Protection Agency's (EPA's) 

definition of the word standby as "the period of time that an impoundment is not 

accepting uranium byproduct material or tailings but has not yet entered final closure'' 

( app. br. at 46; 40 C.F .R. § 61.251 (k) ). However, that definition is consistent with the 

dictionary definition of the word standby, albeit applied to modify a period of time 

instead of a physical structure (id.). The EPA definition indicates that the standby 

period-i.e., the period of time that an impound is ready for duty, but not yet deployed 

unless or until needed for an emergency-is when it is not accepting uranium 

by-product or tailings but has not yet entered final closure under EPA regulations. 

Because the word standby modifies a physical structure (i.e., an EP) instead of a 

period of time here, the plain meaning of the contract documents required CDM to 

provide a backup EP that was operationally ready for duty, but not yet deployed unless 

or until needed for an emergency. Thus, there was no constructive change when the 

Corps compelled CDM to provide a backup EP. 16 

15 It is not our place to second-guess the soundness of the Corps' decision to require a 

backup EP. Savantage Fin. Servs., Inc. v. United States, 595 F.3d 1282, 1286 

(Fed. Cir. 2010). In any event, we note that, while the probability of an EP 

failure might be low, the impact of any such failure likely would be 

catastrophic, leading to the closure of Fort Irwin (finding 12). 

16 CDM also points to the fact that it did not provide a backup lime sludge lagoon, 

despite the fact that Table 8 called for a standby lagoon (app. br. at 50). 

However, as the Corps explains, it objected to the lack of a backup lagoon, but 

did not insist upon strict compliance with the contract requirements in that case 

because, unlike the EPs, the lagoons were not a critical component whose 

19 
B. Average Daily Flow 

There was a constructive change when the Corps compelled CDM to utilize a 

3.0 mgd ADF. The contract documents stated that the CH2M Hill drawings were 

based upon a 3.0 mgd ADF, but it did not require CDM to use that-or any 

particular-ADF (finding 21). On the contrary, the contract documents stated that the 

CH2M Hill drawings were FIO, and it was up to the contractor to determine sizing 

(finding 3). Because the contract documents did not require the use of any particular 

ADF, the Corps constructively changed the contract documents when it compelled 

CDM to use a 3.0 mgd ADF. Indeed, because the contract documents required CDM 

to use an ADF in the range of 2.0 to 2.5 mgd to measure actual daily demand, it was 

reasonable for CDM to conclude that it could use an ADF within that range-namely a 

2.25 mgd ADF (finding 23). 

The Corps argues that CDM's constructive change claim regarding the ADF 

must fail because it was CDM-not the Corps-that changed the ADF from the 

3.0 mgd that CDM had proposed in its 65 percent and 100 percent designs to the 

2.25 mgd that CDM proposed in its revised 100 percent design (gov't br. at 26; gov't 

reply br. at 7). That is beside the point. A constructive change occurs when the 

government compels a contractor to perform work not required under the terms of the 

contract. Affair Dev., 05-2 BCA ,r 32,990 at 163,515. Thus, the relevant change was 

when the Corps required CDM to use a 3.0 mgd ADF that was not called for by the 

contract documents (findings 20, 35). It was not when CDM changed the ADF from 

an earlier design. The earlier ADFs proposed by CDM were not contract 

requirements. On the contrary, the Corps had rejected those earlier designs 

(finding 29). Absent a contract requirement or an approved design to the contrary, 

CDM was free to select an ADF, so long as it was sound and supported, which was the 

case here. 17 

failure likely would lead to the closure of Fort Irwin. Moreover, for all the 

other design elements requiring a standby unit, CDM provided a backup unit. 

(Finding 36) CDM argues that those elements are different from EPs because 

they are mechanical and thus prone to failure (app. br. at 50). However, 

nothing in the language of the contract documents evidences a mutual intent to 

draw such a distinction. 

17 The Corps does not-and could not-argue that the 2.25 mgd ADF was unsupported 

or unsound. On the contrary, Dr. Gross testified that the 2.25 mgd ADF was 

reasonable, and the evidence shows that the ADF actually has been lower than 

2.25 mgd (findings 33, 38). Moreover, the contract documents contained 

historical data showing that the ADF was below 3.0 mgd ADF. Dr. Gross 

testified that historical data is an industry-accepted basis for determining ADF. 

(Finding 22) Further, the contract documents themselves supported a 2.25 mgd 

20 
C. Evaporation Coefficient and the Water Depth 

There also was a constructive change when the Corps compelled CDM to use a 

0.8 evaporation coefficient only if the maximum water depth was three feet or less. 18 

The contract documents did not require CDM to use any particular evaporation 

coefficient for any particular water depth (finding 24). Therefore, the Corps 

constructively changed the contract documents when it compelled CDM to use a 0.8 

evaporation coefficient only if the maximum water depth was three feet or less. 19 

As with the ADF, the Corps argues that it was CDM-not the Corps-that 

changed the evaporation coefficient relative to the water depth from that proposed by 

CDM in its March 6, 2013 memorandum (gov't br. at 32). That argument is even 

weaker than the Corps' argument regarding the ADF. First, it suffers from the same 

defect discussed above regarding the ADF. Namely, it fails to recognize that the 

relevant change for purposes of establishing a constructive change was when the Corps 

compelled CDM to perform work not required by the contract documents; not when 

CDM purportedly changed the coefficient relative to the water depth from that CDM 

proposed in the rejected March 6, 2013 memorandum. 

ADF by requiring CDM to use an ADF in the range of 2.0 to 2.5 mgd to 

measure actual daily demand (finding 23). That CDM had proposed a more 

conservative 3.0 mgd ADF earlier does not establish that the subsequent 

2.25 mgd ADF was unsound because the revised 100 percent design increased 

conservativism elsewhere (findings 27, 32). 

18 The Corps improperly seeks to segregate CDM's evaporation coefficient claim from 

its water depth claim in an attempt to argue that CDM voluntarily used a 0.8 

evaporation coefficient (gov't reply br. at 2-3, 8). The March 6, 2013 

memorandum voluntarily proposed using a 0.8 evaporation coefficient for a 

maximum water depth of five feet (finding 28). The Corps rejected that 

proposal, directing CDM to use a 0.8 evaporation coefficient only if the 

maximum water depth was three feet or less (findings 29, 33, 35). Thus, it was 

not the evaporation coefficient alone that was compelled, but rather the 

evaporation coefficient relative to the ·water depth. 

19 The Corps does not-and could not-argue that the use of a 0.8 evaporation 

coefficient for EPs with a maximum water depth of five feet was unsound or 

unsupported. On the contrary, Dr. Gross testified that a 0.8 evaporation 

coefficient for EPs with a maximum water depth of five feet was reasonable 

(finding 33). Moreover, CDM supported its evaporation coefficient by citing 

the Design Characteristics for Evaporation Ponds in Wyoming, which indicated 

that a reasonable evaporation coefficient was in the range of 0. 7 and 0.95 

(finding 28). 

21 
Moreover, the Corps' argument regarding the evaporation coefficient and water 

depth is even weaker than its argument regarding the ADF because it was the Corpsnot CDM-that sought to change the evaporation coefficient relative to the water 

depth from that proposed in CDM's rejected proposal. In the March 6, 2013 

memorandum, CDM proposed using a 0.8 evaporation coefficient for EPs that had a 

maximum water depth of five feet and a usual water depth of three feet or less 

(finding 28). It was the Corps-not CDM-that changed that criteria by compelling 

CDM to use a 0.8 evaporation coefficient only for EPs that had a maximum water 

depth of three feet or less (findings 29, 33, 35). The Corps justified that requirement 

by stating that, "[s]ince the 0.8 coefficient is assumed based on shallow depths 

(generally less than 3 feet) being maintained [in the] ponds, and the design actually 

reaches 5 foot depth without precipitating solids, it is questionable that the 0.8 

coefficient would still be appropriate" (finding 33). However, in that statement, the 

Corps improperly compared apples (i.e., the March 6, 2013 memorandum's proposed 

five foot ma.ximum water depth) with oranges (i.e., the March 6, 2013 memorandum's 

proposed three feet or less general or usual water depth) to call into question the 

March 6, 2013 memorandum's evaporation coefficient by creating an illusory 

inconsistency. Because the Corps was compelling CDM to use an evaporation 

coefficient relative to the water depth that was not called for by the contract 

documents-or even by CDM' s rejected March 6, 2013 design memorandum-there 

was a constructive change. 

The Corps also argues that CDM failed to provide adequate notice (gov't br. at 

29-32). That is incorrect. While the May 22, 2013 notice of change focused upon the 

standby EP and ADF issues, it stated, "[a]lso, the Government is not accepting our 

evaporation rate design factors" (finding 34). That provided adequate notice that 

CDM considered the evaporation coefficient relative to the water depth requirement to 

be a constructive change that CDM did not voluntarily perform. 

Similarly, the Corps' argument that CDM voluntarily changed the evaporation 

coefficient relative to the water depth because the Corps merely provided feedback 

instead of direction is incorrect (gov't reply br. at 18). After the notice of change, the 

Corps issued the May 29, 2013 letter, which-by its own terms-"constitutes formal 

direction" to use a 0.8 evaporation coefficient only for water depths of three feet or 

less (finding 35) (emphasis added). Therefore, CDM did not voluntarily use a 0.8 

coefficient only for water depths of three feet or less.20 

20 There was no compensable delay because there was concurrent contractor-caused 

delay (i.e., failing to include a backup EP) that was intertwined with the 

government-caused delays (i.e., changes to the ADF, coefficient, and water 

depth requirements) (finding 52). Sauer, Inc. v. Danzig, 224 F.3d 1340, 1348 

(Fed. Cir. 2000}; Celesco Indus., Inc., ASBCA No. 21928, 81-2 BCA ,r 15,260 

at 75,556. Whether CDM will be able to segregate any increased costs it 

22 
11. The Standby Generator (ASBCA Nos. 60-1-55 and 60669) 

CDM is entitled to an equitable adjustment under the Changes clause because 

the Corps provided defective specifications regarding the generator. "When the 

government provides a contractor with defective specifications, the government is 

deemed to have breached the implied warranty that satisfactory contract performance 

will result from adherence to the specifications." Alliance Gen. Contractors, LLC, 

ASBCA No. 54979, 09-1 BCA ,r 34,030 at 168,327 (quoting Essex Electro 

Engineering, Inc. v. Danzig, 224 F.3d 1283, 1289 (Fed. Cir. 2000)). Here, by 

providing the concept drawings, the Corps warranted that satisfactory performance 

would result from adherence to those drawings (findings 44, 46). The Corps breached 

that warranty when it subsequently rejected a design that followed the concept 

drawings (finding 50). 

The Corps argues that the concept drawings were not specifications because the 

contract documents did not require CDM to comply with those drawings (gov't br. 

at 38). However, we rejected that argument in MA. Mortenson Company, ASBCA 

No. 39978, 93-3 BCA ,r 26,189 at 130,367 (holding that concept drawings create a 

warranty, even if the contract does not require a contractor to follow the drawings). 

Indeed, the conclusion that the concept drawings created a warranty is even stronger 

here than it was in Mortenson because, unlike in that case, the contract documents 

required the contractor to use the drawings to price its proposal (finding 4).21 

The Corps also argues that it was unreasonable for CDM to follow the concept 

drawings because appendix A, § 9 .1. 3 trumped the concept drawings under the Order 

of Precedence clause (gov't br. at 36-37). Under the Order of Precedence clause, 

appendix A took priority over the concept drawings only if there was an inconsistency 

(finding 5). That clause is not applicable here because the concept drawings are 

consistent with appendix A, § 9. 1. 3. Appendix A, § 9 .1. 3 stated that "[ m ]ultiple 

generators and transfer switches will be required when physical distances exceed 

incurred as a result of the ADF, evaporation coefficient, and water depth 

changes from any increased costs it incurred as a result of its failure to include a 

backup EP is an issue of damages that is not addressed in this opinion. 

21 It is true that the contract documents indicated that the concept drawings were FIO, 

and were made available to CDM for its use without any warranty of usefulness 

or suitability of purpose (finding 3). However, "[g]overnmental disclaimers of 

responsibility for the accuracy of specifications which it authors are viewed 

with disdain by the courts." Edsall Constr. Co., ASBCA No. 51787, 01-2 BCA 

,r 31,425 at 155,181 (quoting Bromley Contracting Co., ASBCA No. 14884 et 

al., 72-1 BCA ,r 9252 at 42,902); see also Metcalf Constr. Co. v. United States, 

742 F.3d 984, 995-96 (Fed. Cir. 2014). 

23 
200 feet to load" (finding 42). The concept drawings' use of a single generator and 

ATS was consistent with appendix A, § 9.1.3 because the distance from the generator 

to the load was less than 200 feet (finding 47). Moreover, the Corps' reliance upon 

appendix A, § 9 .1. 3 is unavailing in light of the facts that the rejected 10 percent 

design did not even show distances, the Corps did not cite appendix A, § 9.1.3 as a 

basis for rejecting the 10 percent design, and the design the Corps ultimately approved 

violated appendix A, § 9.1.3 because it only had one generator that was over 200 feet 

from the load (findings 48, 50-51). 

Similarly, the Corps argues that ESR ,r 12 trumped the concept drawings under 

the Order of Precedence clause (gov't br. at 36-37). That argument is even weaker 

than its argument regarding appendix A, § 9.1.3. First, it suffers from the same defect 

discussed above regarding appendix A, § 9.1.3. Namely, the Order of Precedence 

clause does not apply because ESR ,r 12 was consistent with the concept drawings. 

The Corps is unclear precisely how it claims the concept drawings conflicted with 

ESR ,r 12 (id.). To the extent that it is claiming that the concept drawings' use of a 

single ATS or the primary network to distribute electricity was inconsistent with ESR 

,r 12, that argument would fail because ESR ,r 12 did not require the use of multiple 

ATSs or the secondary network. ESR ,r 12 provided that 

When a customer has a standby generator to supply all of 

their load during an Edison system outage, the generator 

shall be connected to the load by a double-throw switch or 

automatic relays and switches which will isolate the load 

from the Edison system before the generator is connected 

to the load. When the Edison service is re-energized, the 

generator will then be isolated from the load before the 

load is reconnected to the Edison system. 

(Finding 40) (Emphasis added) That language expressly recognized that a single 

double-throw switch was acceptable. Nor did that language prohibit CDM from 

connecting the generator to the primary network. (Id.) Further, SCE sometimes 

waived the ESR's provisions (finding 39). Therefore, the SCE drawings can be read 

consistently with ESR ,r 12 as either the SCE applying ESR ,r 12 to this project, or 

waiving any inconsistent provisions of ESR ,r 12 (finding 49). Indeed, in its 

contemporaneous communications with CDM, the Corps did not cite ESR ,r 12 as the 

basis for rejecting the 10 percent design (finding 50). 

Moreover, even if ESR ,r 12 were inconsistent with the concept drawings, it 

would not trump the concept drawings under the Order of Precedence clause. Under 

the Order of Precedence clause, appendix A and section O 1 10 10 took priority over the 

concept drawings if there was a conflict (finding 5). However, unlike with appendix 

A,§ 9.1.3, appendix A and section 01 10 10 did not require compliance with ESR 

24 
,r 12. Appendix A and section 01 10 10 required compliance with "all state and federal 

codes, standards and law,'' "applicable building codes and standards," and "DOD and 

national standards" (finding 43). Building codes are "[l]aws, ordinances, or 

government regulations." BLACK'S LAW DICTIONARY, 195 (6TH ed. 1990). The ESR 

was not a state or a federal code, standard or law; applicable law ordinance, or 

government regulation; or a DoD standard because it was issued by a utility-not a 

government. Nor was it a national standard because it only applied to SCE's 

customers in Southern California. (Findings 3, 39) Further, the Corps does not even 

attempt to define a "building standard," or show that the ESR was a building standard 

(gov't br. at 37; gov't reply br. at 19-21). Therefore, appendix A and section 01 10 10 

did not require compliance with ESR ,r 12. 

The Corps finally argues that its response to the RFI put CDM on notice of the 

Corps' belief that there was a conflict between the CH2M Hill drawings and 

appendix A, § 9.1.3 (gov't br. at 2, 38). However, the Corps' response to that RFI did 

not indicate a belief that there was a conflict. On the contrary, a reasonable contractor 

could infer that the Corps believed that the electrical design shown in the CH2M Hill 

drawings was consistent with appendix A, § 9.1.3 from the fact that the Corps 

responded to the RFI-which purportedly established that the CH2M Hill electrical 

design was inconsistent with appendix A, § 9.1.3-by amending the RFP to add the 

SCE drawings, which showed an electrical design that was substantially similar to that 

shown in the CH2M Hill drawings. (Findings 45-46) If the Corps had believed that 

the RFI had established that such a design was inconsistent with appendix A, § 9.1.3, a 

reasonable contractor could have expected that the Corps would have responded to the 

RFI by amending the RFP to remove the inconsistent drawings and/or to add a 

consistent drawing-instead of to add drawings that continued to show a purportedly 

inconsistent design. Any subjective understanding of a conflict that was so unclearly 

communicated is insufficient to establish an actual conflict. Because the concept 

drawings were not trumped by inconsistent requirements in appendix A or 

section O 1 10 10, those drawings created an implied warranty that adherence to the 

drawings would result in satisfactory contract performance, which the Corps breached. 

CONCLUSION 

On entitlement under ASBCA No. 60454, the appeal is sustained as to the 

constructive change claim relative to the average daily flow, pan evaporation 

coefficient, and water depth. Otherwise, the appeal in ASBCA No. 60454 is denied. 

On entitlement under ASBCA Nos. 60455 and 60669, the appeals are sustained on the 

25 
defective specification claim. Otherwise, the appeals in AS_BCA Nos. 60455 and 

60669 are denied. Accordingly, the appeals are returned to the parties for a 

determination of quantum consistent with this decision. 

Dated: October 24, 2018 

I concur 

~HACKLEFORD 

Administrative Judge 

Acting Chairman 

Armed Services Board 

of Contract Appeals 

Administrative Judge 

Armed Services Board 

of Contract Appeals 

I concur 

OWEN C. WILSON 

Administrative Judge 

Vice Chairman 

Armed Services Board 

of Contract Appeals 

I certify that the foregoing is a true copy of the Opinion and Decision of the Armed 

Services Board of Contract Appeals in ASBCA Nos. 60454, 60455, 60669, Appeals of 

CDM Constructors, Inc., rendered in conformance with the Board's Charter. 

Dated: 

26 

JEFFREY D. GARDIN 

Recorder, Armed Services 

Board of Contract Appeals