ARMED SERVICES BOARD OF CONTRACT APPEALS

Appeal of -- )

)

GSC Construction, Inc. ) ASBCA No. 61380

)

Under Contract No. W912HN-10-D-0049 )

 Task Order 0007 )

APPEARANCE FOR THE APPELLANT: Mr. George L. McKnight

 President

APPEARANCES FOR THE GOVERNMENT: Michael P. Goodman, Esq.

 Engineer Chief Trial Attorney

Laura J. Arnett, Esq.

 Engineer Trial Attorney

 U.S. Army Engineer District, Savannah

OPINION BY ADMINISTRATIVE JUDGE MCNULTY

Before us is the government’s motion for summary judgment. We partially 

grant the motion. 

STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION

1. On September 25, 2012, the U.S. Army Engineer District Savannah

(government) issued Task Order (TO) 0007 to GSC Construction, Inc. (GSC or 

appellant) under an indefinite-delivery, indefinite-quantity multiple award task order 

contract (MATOC), Contract No. W912HN-10-D-0049 for the design and renovation 

of an Army Ranger barracks building, Building 2833, located at Fort Benning, Georgia. 

The task order included options relating to design and renovation services for Building 

2834 as well. The barracks buildings are also referred to as the “Rip Rope” buildings. 

The task order established a 540 calendar day period of performance measured from the 

date of receipt of Notice to Proceed (NTP). (R4, tab 6 at 1-5)

2. GSC acknowledged receiving the NTP on November 21, 2012, thereby 

establishing the task order’s completion date as May 15, 2014 (R4, tab 2 at 2, 7).

3. Under date of January 25, 2013, the government requested a proposal (RFP) 

for additional work due to design changes at Building 2833 (R4, tab 8 at 1). GSC’s 

proposal submitted in response to the RFP included two fragnet schedules setting forth 

the anticipated impact on the project’s schedule if the government went ahead with the 

additional work (id. at 20-21). GSC’s proposal in the total amount of $59,781.11,
2

included a request that 22 days be added to the schedule with a cost of $18,999.42 for 

the additional time of performance required, i.e., extended overhead1 (id. at 6). 

4. The government accepted GSC’s proposal and issued Modification No. 1A 

to the TO in the amount of $59,781.11, but rather than the 22 days requested, granted 

30 days of time extension. The modification expressly states that it is for all costs 

directly or indirectly attributable to the changes and delays related thereto including 

extended overhead (R4, tab 8 at 25-27). In this regard the modification stated:

It is understood and agreed that pursuant to the above, the 

contract time is extended the number of calendar days 

stated, and the contract price is increased as indicated 

above, which reflects all credits due the Government and 

all debits due the Contractor. It is further understood and 

agreed that this adjustment constitutes compensation in full 

on behalf of the Contractor and its Subcontractors and 

Suppliers for all costs and markups directly or indirectly 

attributable for the change ordered, for all delays related 

thereto, for all extended overhead costs, and for 

performance of the change within the time frame stated.

(Id. at 26-27) GSC signed the modification on February 22, 2013 (id. at 25). The 

government’s Price Negotiation Memorandum (PNM) states that the basis for the time 

extension was that design was delayed 30 calendar days by the government’s failure to 

provide as-built drawings to GSC in a timely manner (id. at 23). Modification No. 1A 

extended the contract completion date to June 14, 2014 (id. at 26).

5. By letter dated May 9, 2013, GSC submitted a letter regarding the 

progressive collapse requirements of the contract. GSC stated the as-built drawings 

had not been made available until sometime after contract award. This had caused a 

delay to the design work, which had been addressed in a modification to the contract. 

(R4, tab 17 at 1) GSC also stated that without the as-built drawings its bid price had 

been based on a proposal it had received from Fibrwrap Construction, which had relied 

on its prior experience with Buildings 2752 and 2754 to prepare the proposal. GSC 

continued, stating they had discovered that much more work was required in the Rip 

Rope buildings than had been required for Buildings 2752 and 2754. (Id.) GSC stated 

it hoped the progressive collapse requirement would be withdrawn from the contract, 

which would result in a credit to the government, otherwise, GSC would submit a 

 1 The proposal indicates GSC added Overhead (10%, $1,899.94), Profit (7%, $1,329.96) 

and Bond premium (1%, $189.99) to its proposed costs (id. at 6). Accordingly, 

with respect to the extended overhead GSC was seeking, and ultimately received, 

$22,419.31 ($18, 999.42 + $1,899.94 + $1,329.96 + $189.99) (SOF ¶ 4).
3

request for equitable adjustment (REA) of approximately $200,000 for building 2833 

alone (id. at 2).

6. GSC reiterated that it had received a modification for the delay associated 

with the government’s election to not provide the Rip Rope buildings as-built 

drawings until several months after contract award in its claim submitted May 29, 

2013 (id. at 15). Its claim sought costs associated with the additional reinforcement 

required in Building 2833. The claim did not seek any additional time or any time or 

costs for work in Building 2834. (Id. at 15-16) 

7. By letter dated July 29, 2013, GSC notified the government it had 

encountered what it considered to be differing site conditions (DSC). The letter 

indicated the concrete slabs for Building 2833’s floors were out of plumb with each 

other and that the slabs exceeded the flatness tolerance set forth in the contract. (R4, 

tab 22 at 1) GSC included a cost proposal, totaling $158,921.72 for the two DSC. The 

cost proposal indicated that 2,400 bags of floor leveling compound was needed to 

correct the slab flatness issue. The cost proposal also indicated that a 25-day time 

extension was needed to perform the required corrective work. (Id. at 2)

8. The government exercised options 1-3 and added the work to TO 007 by 

Modification No. 02, effective August 13, 2013 (R4, tab 10 at 1). The modification 

added 175 calendar days to the task order performance period, extending it to 

December 6, 2014 (id. at 2-3). Although the modification was unilateral, GSC does 

not dispute that the contract completion date was revised to December 6, 2014, by 

Modification No. 02 (gov’t mot. at 2; app. opp’n at 2). 

9. Under date of August 14, 2013, the government sent GSC a RFP for 

removing and replacing a sanitary line and for the work related to alter the metal stud 

framing to account for the edges of each slab being out of plumb (R4, tab 23 at 1, 3). 

GSC submitted a proposal totaling $87,627.67 and requested a 15-day time extension 

in response to the RFP (id. at 5). The proposal included furring out all slab edges to 

make them plumb in the amount of $25,141.00 before markups (id.). GSC also 

submitted a fragnet schedule to support its request for a 15-day time extension (id. 

at 13-14). The parties agreed to a no time change order in the amount of $73,637.52 

for the work, which was added to the TO by Modification No. 1C (id. at 16-17).

10. By letter dated September 26, 2013, the government requested a proposal 

from GSC for the additional reinforcing work relating to the progressive collapse 

requirements for both of the Rip Rope buildings (R4, tab 24 at 1-3). GSC’s proposal 

in the total amount of $499,931.60 included $81,530.50 before markups for leveling 

the floor slabs, which was based on 1,304 bags of leveling compound (id. at 5, 20). 

During the negotiations of the modification relating to this work, GSC, at the 

government’s request, agreed to remove the costs associated with the floor leveling 
4

(id. at 31-32). Bilateral Modification No. 04 was executed by the parties on May 15, 

2014, for the additional work associated with the additional reinforcing required to 

comply with the progressive collapse requirement (id. at 34). The government’s PNM

indicates the floor leveling work associated with Modification No. 04 was required 

due to the increased amount of fiberwrap applied to the slabs to satisfy the progressive 

collapse requirements. (id. at 30-31).

11. By letter dated February 10, 2015, the contracting officer notified GSC that 

it had failed to complete the project by the contract’s completion date and that the 

government would assess liquidated damages in the amount of $1,029.64 per calendar 

day assessed retroactively from February 5, 2015, until the buildings were turned over2

(R4, tab 34). The government conducted the final inspection of building 2834 and 

granted occupancy to the user on June 19, 2015 (R4, tab 19 at 879).

3

12. By letter dated March 3, 2015, the government requested a proposal for 

changes to the fire alarm system. GSC submitted a proposal in the amount of 

$8,393.90 with a 70 calendar day time extension in response. (R4, tab 25 at 1, 5) The 

government issued Modification No. 1G in the amount of $8,393.90 as proposed by 

GSC on March 6, 2015 (id. at 14). The modification was issued unilaterally because 

the parties could not agree on the time required to perform the additional work (id. 

at 11-13). The modification was issued with the understanding that the issue of time 

would be revisited (id. at 15-16). Subsequently, the government issued Modification

No. 1H granting a 10-day non-compensatory time extension for the changes to the fire 

alarm system (R4, tab 26). This modification was also issued unilaterally. GSC 

declined to sign it and indicated it would provide “a more formal response later in the 

week” (id. at 3). The record includes a response to a request from the government 

made in January 2018 for GSC’s delay analysis relating to the fire alarm changes (R4, 

tab 16). The response, signed by Mr. Jay Grant from GSC discussed the attached 

schedules, which Mr. Grant asserts demonstrates that the fire alarm system changes 

had an impact of 71 calendar days to the overall schedule (id. at 25-39). A comparison 

of the two schedules, found at 26-32 and 33-39 of tab 16 indicates that an activity 

identified as “1G” and named “Fire Alarm Changes” has been added to the amended 

 2 Building 2833 had been made available for the government’s use on November 18, 

2014, despite the HVAC system not operating properly (R4, tab 19 at 672). 

The contract does not have separate completion dates for the buildings, a single 

completion date encompasses both buildings (R4, tab 6 at 5, tab 10).

3 In its motion the government asserts it is undisputed the warranty period commenced 

on June 19, 2015 (gov’t mot. at 23). GSC disputed this in its response, 

asserting Building 2834 was substantially complete in May and that the 

government occupied the building on May 11, 2015 (app. opp’n at 12). The 

government has admitted the project was substantially completed on May 8, 

2015, for purposes of the motion (gov’t reply at 15). 
5

schedule. The activity is depicted as extending from early March to mid-May. No 

further explanation was provided.

13. On March 5, 2016, a two-inch water line came apart. Building 2834 was 

flooded with four inches of water in the basement. The base maintenance contractor 

responded to the flood and also noted that a six-inch water main on the first floor was 

leaking badly and contributed to the flooding. (R4, tab 29) The repairs were 

completed on March 10, 2016 (id. at 2).

14. On March 31, 2016, another leak occurred in Building 2834 and GSC was 

asked to make the necessary repairs. GSC, through a subcontractor, repaired this leak 

on April 2, 2016. On April 3, 2016, the repair failed and the basement was flooded 

with six feet of water and other areas of the building were flooded with as much as two 

feet of water. GSC was again directed by the government to make the necessary 

repairs under the warranty it had provided. (R4, tab 30) 

15. By letter dated April 11, 2016, GSC advised the government that it was 

continuing to assess the cause of the leaking and that it was working to assure the 

government received fully functional items. GSC indicated that its insurance company 

was involved in reviewing the situation. (R4, tab 32) 

16. In July 2016, GSC’s insurance company, BITCO, issued a check in the 

amount of $110,000 to GSC as an advance payment for certain repairs relating to the 

flooding. The check was issued as an accommodation and BITCO reserved all of its 

rights, including the right to seek reimbursement of the payment. (R4, tab 33) 

17. Under date of July 26, 2017, GSC submitted a certified claim to the 

contracting officer for final decision (R4, tab 14). The claim included seven “Issues”

totaling $1,339,954.11 as follows:

1) Delay in start of Bldg. 2834 due to a failure to provide 

as-built drawings for existing 2833 Building that was

outside the power of GSC. GSC requested a thirty (30)

calendar day time extension and $20,519.37 in extended 

overhead by letter dated January 11, 2013.4

 4 GSC appears to have misstated the date of the letter. The letter enclosed with the 

claim in the record is dated January 31, 2013 (R4, tab 14 at 4). The letter 

includes a cost proposal showing how the cost claimed was calculated and two 

fragnets supporting the 30 days claimed (id. at 5, 7-8). The fragnets are 

identical to the fragnets submitted by GSC to support the request for an 

equitable adjustment that was paid in Modification No. 1A (Cf. R4, tab 14 

at 7-8, tab 8 at 20-21). 
6

2) Audio Visual Changes. GSC was directed by the user to 

make changes to the audio visual components of 2834 in 

order for 2834 to be accepted. These changes were outside 

GSC’s scope. For these changes, GSC requests a 

$29,689.25 change order per the attached cost breakdown 

from Net Planner and a 21 calendar day time extension

with extended overhead.

3) Testing outside GSC’s scope. GSC requests a

$632,995.61 change order for GSC having to maintain and 

perform testing not required by its contract. This cost is

substantiated by the partial judgement award, Judge Proper 

January 18, 2016, to GSC for completing HVAC system 

once DYNAMIC was unable to complete. This unduly

imposed requirement caused substantial hardship to GSC 

and its subcontractors. The HVAC contractor abandoned 

the project and ceased doing business in Georgia as a

direct result. Attached is an uncollectable judgment 

against the project’s mechanical contractor justifying the 

change order amount. GSC had to complete the project 

acquiring outside forces as no others would take the job 

due to excessive and previously unknown requirements. 

GSC was further burdened by the 120 days these 

requirements added to project completion. GSC is entitled 

to a change order because its losses caused by the testing 

requirements were outside its control and unknown at the 

time GSC entered into its contract.

4) Existing concrete pads were out over 1” level contrary

to expected building standards. This unforeseen condition 

forced GSC to install an additional 2400 bags of Ardex at a

spread rate of 25 sf per bag. GSC requests a change order 

for $158,921.72 per GSC letter dated July 29, 2013.

5) COE issued unilateral 1G “Fire Alarm Changes.” GSC 

request a 70 day time extension with overhead as requested 

by GSC backup dated March 4, 2015. The unilateral was

ambiguous but COE took position that it required GSC to 

meet all base requirements for life safety. This resulted in 

confusion loss of efficiency and additional delays to the
7

project. Please see attached change order. GSC requests a 

change order for 70 day time with extended overhead.[5]

6) Basement Flood. GSC was directed to repair a leak to 

2834’s hot water heater. GSC also repaired damages 

caused by the leak at the user’s direction, even though the 

leak was not GSC’s fault, there were damages from 

previous leaks, and the project exceeded the warranty 

period. GSC requests to be reimbursed for the expenses

incurred in repairing the leak, including its increase 

insurance premium. Please see attached cost breakdown 

estimate including premium increase for damages totaling

$394,750.68.

[6]

7) GSC is requesting payment of outstanding balance of 

original contract construction costs in the amount of 

$103,077.48. At our expense GSC allowed beneficial

occupancy of 2833 well before the completion date. This 

resulted in GSC having to maintain 2833 until 2834 was 

occupied by COE.

(R4, tab 14 at 1-2) The amount claimed for Issue (4) included costs for work 

associated with both leveling the floor slabs and installing furring along the slab edge

(id. at 18). The pricing, in the amount of $5,506.00, for the furring work was obtained 

from Center Brothers, Inc. via an email dated July 26, 2013 (id. at 26). Center 

Brothers, Inc. subsequently revised the pricing and incorporated it into the price that 

GSC submitted as part of the backup for its REA that resulted in Modification No. 1C 

(R4, tab 23 at 11; see also SOF ¶ 9).

18. As part of its support of its claim GSC submitted a copy of a judgment in 

the amount of $632,995.61, plus costs and attorney’s fees it had received in the 

Superior Court of Richmond County, Georgia against its subcontractor, Chris Leiser 

 5 The claim stated no dollar amount for the extended overhead sought.

6 This claim Issue was supported with a “Cost Estimate Analysis” breakdown, which 

included a lump sum for the flood repairs in the amount of $303,740.23 and 

$22,500 for the insurance premium increase before markups of 10% each for 

overhead and profit and 1% for additional bond premium (R4, tab 14 at 33). 

We find the total amount claimed for the increase in insurance premium 

element with the markups as claimed is $27,497.25. Although there were 

multiple leak incidents between March and April 2016 appellant’s claim does 

not segregate the costs by incident. (SOF ¶¶ 13-14; R4, tab 14 at 33-34)
8

d/b/a Dynamix Mechanical7 (id. at 12-13). The record includes a copy of the 

complaint filed by GSC against Dynamix, which pleads Dynamix breached the 

subcontract by abandoning performance prior to its completion, requiring GSC to 

engage a replacement subcontractor to complete the work contained within the scope 

of the subcontract agreement and damaging GSC in the amount of $632,995.61 (R4, 

tab 20 at 4). On August 22, 2017, the contracting officer notified GSC that a decision 

on its claim would be issued by February 15, 2018 (R4, tab 15). On October 25, 2017, 

appellant filed a Notice of Appeal with the Board, which was docketed as ASBCA No. 

61380.

19. By letter dated February 15, 2018, the contracting officer partially found

merit and partially denied the claim as synopsized below: 

(1) The contracting officer denied the first issue, finding 

GSC had already been compensated in the form of a 

30-day time extension and payment of $20,519.37 via 

Modification No. 1A8 (R4, tab 2 at 3-5; SOF ¶¶ 3, 4). 

(2) The contracting officer found the second issue had some 

merit, finding GSC was entitled to compensation for additional 

direct costs it had incurred and a non-compensable 21 calendar 

day time extension (R4, tab 2 at 5-7).

(3) The contracting officer denied the third issue, finding 

the costs claimed, duplicated the amount of a judgment 

GSC had received in a lawsuit against its subcontractor, 

DYNAMIC, for having failed to perform work that GSC 

had pleaded in its complaint against the subcontractor was 

“within the scope of the subcontract” and that GSC had 

provided no explanation for how the government should 

and could be responsible for the subcontractor’s default 

(id. at 7-9). 

 7 The record includes references to a GSC subcontractor named DYNAMIC as well. 

Based on GSC’s assertions in its claim we find that Dynamix Mechanical and 

DYNAMIC are one and the same.

8 The record indicates GSC was actually paid $22,419.31 for extended overhead by 

Modification No. 1A (SOF ¶¶ 3-4). We find the contracting officer conflated 

the amount paid in Modification No. 1A with the amount claimed in 2017, 

which deleted 10% for overhead, which had been claimed and paid in 2013. 

(Id.; R4, tab 14 at 5) 
9

(4) The contracting officer denied this issue as well (id.

at 9-12). First, the contracting officer found that the 

furring along the slab edge work had been paid for under 

Modification No. 1C., and with respect to the floor 

leveling work, found that this work had been paid for 

under Modification No. 04. (Id. at 11-12; see also SOF 

¶ 10) The contracting officer stated that GSC had failed to 

provide any evidence that the work being claimed for 

differed from the work that had been paid for previously 

under the two modifications (id.).

(5) The contracting officer denied this issue also. The 

contracting officer noted that 10 calendar days had been 

granted for the fire alarm changes under unilateral 

Modification No. 1H. The contracting officer found that 

the fragnet submitted in support of the claim showed the 

fire alarm work would not be finished until the middle of 

May 2015 but that GSC’s own QCR’s (Quality Control 

Report) showed the work was completed no later than 

March 20, 2015.9 The contracting officer also found that 

the claim failed to take into account the 10 calendar day 

time extension that had been granted under Modification 

No. 1H. (Id. at 12-15) 

(6) The contracting officer denied this issue, finding GSC’s

poor workmanship was the root cause of the flooding. 

Additionally, the contracting officer found GSC had 

submitted no backup to support the claimed insurance 

premium increase. (Id. at 16-22)

(7) The contracting officer denied this issue finding the 

government was entitled to $127,675.36 due to GSC’s late 

finish. The contracting officer found this amount should be 

reduced by $21,622.44 to account for the 21 day time 

extension the contracting officer found was due GSC for the 

audiovisual changes, claim sub-item (2), but that even with 

this reduction the amount of liquidated damages due the 

government ($106,052.92) exceeded the unpaid contract 

price balance. (Id. at 22-24) 

 

 9 The record includes the Quality Control Reports relied on by the contracting officer 

(R4, tab 18).
10

20. In its complaint GSC reiterated the same seven issues set out in its claim 

and sought relief totaling $1,339,954.11, exactly matching the amount claimed (compl.

¶¶ 18, 29; SOF ¶ 18). 

21. In its response to the government’s motion for summary judgment, GSC 

withdrew its claim for insurance premium increases, which was part of Issue 6 (app. 

opp’n at 14; SOF ¶ 18). 

22. Additionally, after the government filed its motion, GSC produced a 

settlement agreement between itself and its insurance company (gov’t reply at 13, 

ex. 5). The settlement agreement establishes that GSC received $310,000 from its 

insurance company as a loan for payment of the repairs required to remediate the 

damage caused due to the flooding in building 2834 (gov’t reply, ex. 5). Pursuant to 

the terms of the settlement agreement GSC is not obligated to repay the loan unless 

and to the extent GSC recovers from Roto-Rooter or any other third person (gov’t

reply, ex. 5 at 3). 

CONTENTIONS OF THE PARTIES

The government argues appellant has been compensated for much of its claim 

through bilateral modifications to the contract and thus the claim items paid for 

through the modifications are barred by accord and satisfaction. This argument is 

made with respect to Claim Item Nos. 1, 4, 5 (gov’t mot. at 30, 34, 37). The 

government argues appellant has failed to state a claim for which relief may be granted 

with respect to Issue 3 (id. at 32). With respect to Issue 6, the government argues 

appellant caused the flooding, which necessitated the repairs appellant asserts are 

additional work and that in any event appellant has been compensated by its insurance 

company for the repair costs appellant incurred (id. at 40). The government argues it 

is entitled to summary judgment with respect to the claim for the contract balance 

because appellant owes the government liquidated damages that exceed the contract 

balance (id. at 42). With respect to Issue 2, the government acknowledges the claim is 

partially meritorious (id. at 32).

Appellant opposes the motion, arguing there are material facts in dispute. 

Appellant argues responsibility for the flooding in Building 2834 is disputed. 

Appellant also argues that whether the modifications fully resolved the flooring and 

drawing issues is disputed, as well as the issue of whether appellant is entitled to 

additional time for the added fire alarm work. Appellant further argues there is a 

dispute with respect to whether the government is liable for increased costs related to 

enhance commissioning (app. opp’n at 23-25).
11

DECISION

GSC’s withdrawal of the part of its claim, included in Issue 6, relating to the 

insurance premium increases, deprives the Board of jurisdiction to consider this part of 

the appeal further (SOF ¶ 22). This part of the appeal is dismissed as moot. 

Sygnetics, Inc., ASBCA No. 60357, 18-1 BCA ¶ 37,160; Advanced Powder 

Solutions, Inc., ASBCA No. 61818, 19-1 BCA ¶ 37,425 at 181,897. Accordingly, we 

consider the remaining issues pertaining to the government’s motion.

Summary judgment is appropriate where there is no genuine dispute as to any

material fact and the movant has made a prima facie showing with evidence that it is 

entitled to judgment as a matter of law. Enzo Biochem, Inc. v. Applera Corp., 599 

F.3d 1325, 1337 (Fed. Cir. 2010). See also Mingus Constructors, Inc. v. U.S., 812 

F.2d 1387, 1390 (Fed. Cir. 1987); Arko Executive Services, Inc. v. U.S., 553 F.3d 

1375, 1378 (Fed. Cir. 2009); FED. R. CIV. P. 56(a). A material fact is one that might 

affect the outcome of an appeal. Revenge Advanced Composites, ASBCA No. 57111,

11-1 BCA ¶ 34,698 at 170,883 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

248 (1986)). An issue of material fact is “genuine” if the evidence is such that a 

reasonable jury could return a verdict for the non-moving party. Wavetronix v. EIS 

Elec. Integrated Sys., 573 F. 3d 1343, 1354 (Fed. Cir. 2009) (citing Anderson, 477 

U.S. at 248). The moving party “bears the initial responsibility of informing 

the . . . court of the basis for its motion, and identifying those portions of ‘the 

pleadings, depositions, answers to interrogatories, and admissions on file, together 

with the affidavits, if any,’ which it believes demonstrate the absence of a genuine 

issue of material fact,” upon which the burden shifts to the nonmoving party to “make 

a showing sufficient to establish the existence of [elements] essential to that party’s 

case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. 

Catrett, 477 U.S. 317, 322-23 (1986). The nonmoving party’s failure to show an 

element essential to its case on which it has the burden of proof renders all other facts 

immaterial and entitles the moving party to summary judgment. Id. (citing Anderson, 

477 U.S. at 250). We draw all justifiable inferences in favor of the nonmoving party. 

CI2, Inc., ASBCA Nos. 56257, 56337, 11-2 BCA ¶ 34,823 at 171,353 (citing 

M. Maropakis Carpentry, Inc. v. U.S., 609 F.3d 1323, 1327 (Fed. Cir. 2010)). “The 

party opposing summary judgment must show an evidentiary conflict on the record; 

mere denials or conclusory statements are not sufficient.” Mingus Constructors,

812 F.2d at 1390-91; see also Barmag Barmer Maschinefabrik AG v. Murata 

Machinery, Ltd., 731 F.2d 831, 835-36 (Fed. Cir. 1984) (“With respect to whether 

there is a genuine issue, the court may not simply accept a party’s statement that a fact 

is challenged”). Any fact that is not properly disputed we may consider to be 

admitted. See Rules of the Armed Services Board of Contract Appeals, Rule 7(c)(2), 

“The Board may accept a fact properly proposed and supported by one party as 

undisputed, unless the opposing party properly responds and establishes that it is in 
12

dispute.” See also Ferguson Propeller, Inc. v. U.S., 59 Fed. Cl. 51, 58 (2003) 

(“Having failed to specifically dispute the Defendant’s Proposed Findings of 

Uncontroverted Facts, the court deems those facts admitted . . .”); FED. R. CIV. P.

56(e)(2). Additionally, the Board has discretion to grant partial summary judgment to 

resolve some, but not all, of the issues raised by the moving party. See, e.g., Arctic 

Corner, Inc., ASBCA No. 33347, 92-3 BCA ¶ 25,030 (granting summary judgment 

with regard to 7 of 19 claim items); Hermes Consol., Inc. D/B/A Wyoming Refining 

Co., ASBCA Nos. 52308, 52309, 02-1 BCA ¶ 31,767 (granting partial summary 

judgment on Count I with respect to the measure of recovery for unrecovered 

termination costs and granting summary judgment on Counts II-IV).

The government asserts there are no genuine disputes as to any material facts. 

For the most part, we agree with the government but disagree in a few instances as set 

forth more fully below. The government’s motion sets forth a detailed statement of 

facts comprising 175 separate paragraphs. Appellant admits 77 of them without 

exception.10 Appellant admits another 36 but provides additional information, which 

we find fails to dispute the facts asserted and relied on, by the government.11 The 

remaining 62 are denied, but generally in ways insufficient to establish that a dispute

actually exists.

Issue 1: Delay due to lack of as-built drawings

Appellant argues there are two issues with the as-built drawings, one relating to 

floor drawings, the other progressive collapse and that Modification 1A only resolved

the floor drawing issue (SUMF ¶¶ 20, 22, 28-31, 36).

12 Appellant principally relies on

the deposition of John Phillips in support of its assertions in this regard. However, the 

deposition transcript cited, ex. 2, is not in the record. Ex. 2 to appellant’s brief is a 

series of Contractor Quality Control Reports. There is an Appendix B to the 

government’s brief, which includes excerpts from Mr. Phillips’ deposition, but does 

not include the pages cited by appellant. We find that appellant has failed to properly 

dispute the facts asserted by the government with respect to this issue. In any event, 

the record establishes that with respect to this sub-claim appellant has received all of 

 10 Statement of Undisputed Material Facts (SUMF) ¶¶ 1-5, 7-8, 10-16, 18-19, 21, 32, 

66, 73, 75-80, 88, 90-91, 96, 98-99, 102-106, 108-109, 114-116, 118, 122-133, 

136, 142-146, 150, 152, 156, 158-166, 170-171, 173, and 175 (gov’t mot. 

at 1-28; app. opp’n at 1-15).

11 SUMF ¶¶ 20, 22, 24-27, 36, 67, 69, 71-72, 74, 81, 87, 89, 92-95, 97, 110, 112, 117,

119-121, 135, 138-141, 147-149, 151, 169 (gov’t mot. at 4-28; app. opp’n at 4-15).

12 Appellant’s opposition addresses each of the 175 paragraphs of facts set forth in the 

government’s motion. Most of its argument is set forth in its responses to the 

government’s statement of facts. Rather than cite to page numbers in 

appellant’s brief, we cite the SUMF paragraph numbers. 
13

the dollars and time claimed (SOF ¶¶ 3-4, 17(1), 19(1)). Appellant has failed to 

dispute these facts. Furthermore, appellant has failed to explain how having received 

all the time and money it claimed with respect to this part of its claim there is anything 

left to possibly dispute. Accordingly, we grant the government’s motion with respect 

to Issue No. 1. 

Issue 2: Audio Visual Changes in Building 2834

Although the government seeks full summary judgment against the entirety of 

appellant’s claim, the government’s motion includes no facts relating to this issue. 

The government admits the claim is at least partially meritorious and states the 

government is in the process of issuing a modification for it (gov’t mot. at 32, 43). 

The government has provided no further information regarding whether it has issued a 

modification for this claimed additional work and if so, whether appellant has accepted 

same as full compensation for this issue. We find the government has failed to meet 

its burden of proof with respect to Issue 2. Accordingly, we deny the government’s 

motion as it pertains to this issue.

Issue 3: HVAC Testing

Appellant summarily denied all of the facts asserted by the government relating 

to this issue, SUMF ¶¶ 38-65, asserting they were irrelevant without any further 

explanation. Appellant asserted the facts relevant to this issue were provided in its 

counter-statement of facts but failed to actually identify any facts, leaving the citation 

blank (app. opp’n at 7). The government argues, based on documents in the record,

that appellant failed to state a claim because although appellant asserts it was required 

to perform work outside the scope of the contract, appellant has provided no 

documents to support the amount claimed, a default judgment against a subcontractor, 

in which action appellant pleaded the subcontractor had breached its contract with 

appellant by failing to perform contractually required work (gov’t mot. at 33). The 

government argues both of these propositions cannot be true. We find appellant has 

failed to properly dispute the facts asserted by the government, which are sufficient to 

establish appellant has failed to state a claim against the government and grant the 

government’s motion with respect to this issue (gov’t mot. at 33; SOF ¶¶ 17(3), 19(3)).

Issue 4: Unforeseen condition regarding levelness of concrete pads

SUMF ¶¶ 66-101 relates to this issue (gov’t mot. at 11-17). This claimed item 

involves two issues, additional furring work required to bring the slabs’ edges into 

vertical alignment and the installation of Ardex floor leveling compound to make the 
14

slabs acceptably flat13 (SOF ¶¶ 7, 17(4)). The government argues, it is undisputed that 

both issues have been resolved by bilateral Modifications Nos. 1C and 04 (gov’t mot.

at 34-37). Appellant argues the modifications did not resolve all of the issues, but 

provides little to dispute the facts asserted by the government, other than this 

conclusory argument. Appellant either admits SUMF ¶¶ 66-78, which relate to the 

furring issue only or adds additional information stating two issues, furring, and floor 

levelness were involved or that it had not seen the government’s PNM relating to 

Modification No. 1C (app. opp’n, SUMF ¶¶ 66-78). We find appellant has not 

properly disputed the facts asserted by the government relating to the furring issue, 

which are supported by documents in the record. Accordingly, we grant the 

government’s motion with respect to the furring issue.

The flooring issue is another matter. Although not articulated very well, we 

understand appellant is arguing there are two slab levelness issues. One arising from 

the progressive collapse requirements due to the application of fiberwrap material to

the slabs in some locations and a general levelness issue that may be unrelated to the 

use of fiberwrap. We understand appellant attempts to articulate this where it states in 

response to several of the facts relied on by the government: “there was a broader 

issue of floor levelness beyond the corridors and bays addressed in Modification

No. 04. See Phillips Dep. Tr. at 67, lines 5-18,” or words to that effect. (App. opp’n, 

SUMF ¶ 81; see also ¶¶ 82-89) The record, however, does not include the part of 

Mr. Phillip’s transcript that appellant cites. The only transcript of Mr. Phillip’s 

deposition in the record is found in Appendix B to the government’s motion. 

Appendix B includes only excerpts of Mr. Phillips’ deposition transcript and it does 

not include the pages cited by appellant. In many, if not most, instances the failure to 

include cited transcript pages in the record could lead to a finding that the non-movant

has failed to properly dispute the facts asserted by the movant and a ruling in the 

movant’s favor. However, we find the record does include sufficient evidence for us 

to conclude that there may be two separate issues relating to slab levelness (SOF ¶¶ 7, 

10). When appellant first raised the slab levelness issue in July 2013, there was no 

mention of progressive collapse and fiberwrap material being the reason why the slabs 

needed to be levelled. Instead, this appears to be an issue arising from the previous

construction of the slabs out of tolerance as specified by the American Concrete 

Institute (ACI). The leveling of the slabs that is addressed in Modification No. 04 is 

specifically stated to be attributable to the application of fiberwrap, something that is 

possibly independent and apart from the levelness issue that was initially raised by 

appellant in July 2013. While appellant has not disputed the government’s factual 

assertions as nicely as we would have preferred, we find the record on the issue of slab 

levelness is sufficiently clouded that the better course in the circumstances is to 

exercise our discretion to hold a hearing on this issue. See S.C. Public Serv. Auth., 

 13 Although the Issue 4 narrative appears to describe only the floor leveling work, the 

July 29, 2013 letter cited in support of the claim involves both issues (SOF ¶ 7). 
15

ASBCA No. 53701, 04-2 BCA ¶ 32,651 at 161,601 citing Anderson, 477 U.S. at 255,

Blue Cross and Blue Shield Assoc., ASBCA No. 53632, 04-1 BCA ¶ 32,413 

at 160,447. Accordingly, we deny the government’s motion as it relates to the slab 

levelness issue of appellant’s claim.

Issue 5: 70-day time extension due to fire alarm changes

GSC seeks a time extension and potentially, the associated, but unquantified, 

extended overhead costs arising from changes made to the fire alarm system.

14 The 

government recognized the original claim had merit, but the parties were not able to 

agree on the amount of time involved in performing the additional work. 

Consequently, the government issued two unilateral modifications, Modification

Nos. 1G and 1H, for this additional work (SOF ¶ 12). The parties were able to agree 

on the costs for the additional work, which were paid under Modification No. 1G. 

After the work was performed the government recognized and granted appellant a 

10-day non-compensatory time extension for performing the work (id.). The 

government seeks summary judgment, arguing appellant cannot establish entitlement 

and that appellant has been fully compensated by the two modifications (gov’t mot. 

at 37-38). The government asserts appellant has arbitrarily selected a 50-day activity 

that it inserted into its schedule to establish the 70 calendar day time extension it 

seeks and that documents in the record indicate the additional work took much less 

time to perform than the time claimed (gov’t mot. at 38-40). The government also 

argues the deposition testimony of appellant’s accountant undercuts appellant’s claim 

(id.). 

This issue involves SUMF ¶¶ 102-122. We find that if the facts as asserted by 

the government were taken to be true that they would defeat appellant’s claim for 

extended overhead and a time extension beyond that already granted by Modification 

No. 1H. Appellant admitted, without any exception, 12 of these facts. Appellant only 

denied three of the government’s factual assertions, SUMF ¶¶ 107, 111 and 113. 

Appellant admitted but added additional information to the remaining six paragraphs, 

which failed to dispute the facts asserted by the government. Although the fact that 

appellant refused to execute the modifications because it disagreed with the 

government’s assessment of the time required to perform the additional work would 

appear to at least superficially establish that a dispute exists regarding the facts 

associated with this issue. An examination of the assertions with respect to the SUMF 

appellant has ostensibly disputed reveals appellant has failed to dispute the facts 

asserted by the government. 

 14 It is not clear from the record before us whether appellant is seeking a compensatory 

or non-compensatory time extension. 
16

The non-movant must cite specific materials in the record that we, as the fact 

finder could use to find in its favor and this appellant has failed to do. See Optimum

Corp. v. Emcore Corp., 603 F.3d 1313, 1319-1320 (Fed. Cir. 2010) (“When a party 

has failed to introduce evidence sufficient to establish the existence of an essential 

element of that party’s case in accordance with the applicable standard of proof, 

summary judgment is properly granted against that party”), citing Novartis Corp. v. 

Ben Venue Labs, Inc., 271 F.3d. 1043, 1046 (Fed. Cir. 2001). To establish its right to 

a time extension, appellant must show that the additional work involved lies on the 

critical path of the schedule. Kinetic Builder’s Inc. v. Peters, 226 F.3d 1307, 

1316-1317 (Fed. Cir. 2000) citing Essex Electro Eng’rs, Inc. v. Danzig, 224 F.3d 

1283, 1295-96 (Fed.Cir. 2000), Sauer Inc. v. Danzig, 224 F.3d 1340, 1345-46 (Fed.

Cir. 2000). In the three SUMF appellant denied, ¶¶ 107, 111 and 113, appellant 

referenced the backup it had submitted in early March 2015 in support of its proposal, 

which led to Modifications Nos.1G and 1H. This backup included fragnets, one of 

which includes an additional activity, 6-BO009 with a 70-day performance period 

extending from March 5, 2015 to May 13, 2015. Although the fragnet includes 

handwriting stating the addition of the fire alarm changes affects the critical path, the 

record includes nothing more than this conclusory assertion. There is no overall 

schedule, or logic submitted, which would explain how or why the addition of this 

work would affect the critical path. Even more problematic, appellant’s continued 

reliance on its initial submission without more fails to even address, much less put into 

issue, the government’s factual assertions, supported by documents in the record, that 

the work was completed by the end of March 2015, much more quickly than appellant 

contemplated at the time it prepared its proposal and the fragnets. On the record 

before us, the claim is implausible because appellant has failed to produce any 

evidence to counter the government’s factual assertions. Appellant was required to 

produce persuasive evidence and has failed to do so. The record, when considered as a 

whole, could not be reasonably found to favor appellant. Although appellant, as the 

non-movant is entitled to have all reasonable inferences drawn in its favor, we find 

that the factual assertions of the government regarding when the additional work 

required was performed and how much time was involved, is unrebutted except with 

conclusory, unsupported assertions, which leave no reasonable inferences to be drawn 

for appellant. See Matsushita Electric. Indus. Co. v. Zenith Radio Corp., 475 U.S. 

574, 586-587 (1986). Accordingly, we find SUMF ¶¶ 102-122 have been admitted 

and find the government is entitled to summary judgment with respect to this issue.

 

Issue 6: Repair of damages from basement flood

This issue involves repair costs for two flooding incidents and an increase to 

appellant’s insurance premiums, which total $394,750.68, including $27,497.25 

claimed for the increased insurance premiums (SOF ¶ 17 (6)). As noted above, 

appellant has withdrawn the insurance premium part of its claim. The government 

asserts the first flooding incident was caused by appellant, attributing it to a 
17

cross-threaded pipe. (SUMF ¶¶ 135-137) Appellant has properly disputed the facts 

asserted by the government relating to the first flooding incident. It has submitted an 

affidavit from its president, Mr. Locke McKnight, in which Mr. McKnight asserts the 

government’s work orders establish that other contractors were working on the 

plumbing in the area where the flooding occurred. The affidavit is accompanied by

photographs, which Mr. McKnight asserts establish that someone other than appellant 

worked on the piping after appellant had finished its work. We find there is a factual 

dispute regarding the identity of the party responsible for the cross-threaded pipe,

which makes this issue unsuitable for resolution by motion for summary judgment. 

Although this issue involves an additional flooding incident, because the costs have 

not been segregated and we have found there is a factual dispute regarding the first 

flooding incident, we need not address this additional flooding incident.

The government also asserts appellant has been paid for the costs appellant 

incurred associated with the flooding by its insurance company and is not obligated to 

repay same and that all of the evidence in the record suggests appellant does not hold 

the government responsible for the flooding (gov’t mot. at 41-42; gov’t reply

at 13-14). Although not outlined in great detail, the government also argues appellant 

is not legally entitled to be paid twice for the same costs (gov’t reply at 13-14). The 

government’s assertions and argument ignore Mr. McKnight’s assertion that the 

government is responsible for the flooding and the plain language of the settlement 

agreement between appellant and its insurance company, which requires appellant to 

repay the insurance company “to the extent GSC recovers from Roto-Rooter or any 

other third person.” (SOF ¶ 22) (Emphasis added) This includes any potential 

recovery appellant may receive from the government and thus is consistent with 

appellant’s assertion the government is responsible for the flooding. For all of the 

above stated reasons we deny the government’s motion as it relates to this issue as 

modified by appellant’s withdrawal of the increased premium portion of this issue. 

Issue 7: Release of liquidated damages/contract balance

GSC seeks the payment of the outstanding contract balance. The government 

opposes, arguing it is undisputed it is entitled to liquidated damages in an amount 

exceeding the balance claimed. In support of its argument, the government asserts the 

contract provided for liquidated damages in the amount of $1,029.64 per calendar day, 

that the contract completion date as extended by modifications was February 15, 2015,

and that the actual completion occurred June 19, 2015, or 124 days late, entitling the 

government to $127,675.36 in liquidated damages. (SUMF ¶¶ 163-172) Appellant 

admitted these facts, except it asserted the government has admitted substantial 

completion occurred on May 8, 2015, and took possession of the building on May 11, 
18

2015.

15 In its reply brief the government admits for purposes of the motion that 

substantial completion occurred on May 8, 2015 (gov’t reply at 15). The government 

states that appellant is entitled to a 21-day time extension for Issue No. 2, which 

extends the contract completion date to March 8, 2015 and that appellant, therefore,

completed the project 61 calendar days late (id.). The government argues it is thus 

undisputed that it is entitled to $62,808.04 (61 x $1,029.64) in liquidated damages. 

The facts as revised by the government and appellant are undisputed and establish the 

government’s right to liquidated damages in the amount of $62,808.04. Accordingly, 

the government’s motion is granted with respect to Issue No. 7 in this amount. 

CONCLUSION

The government’s motion is partially granted and partially denied as set forth 

above. 

Dated: June 4, 2020

CHRISTOPHER M. MCNULTY

Administrative Judge

Armed Services Board

of Contract Appeals

I concur I concur

RICHARD SHACKLEFORD

Administrative Judge

Acting Chairman

Armed Services Board

of Contract Appeals

OWEN C. WILSON

Administrative Judge

Vice Chairman

Armed Services Board

of Contract Appeals

 15 Appellant also asserted the government took possession of Building 2833 as early as 

November 17, 2014 (SUMF ¶¶ 172, 174; Counter-Statement of Facts ¶ 10). 

Although this assertion is supported by evidence in the record, see SOF ¶ 11, 

appellant argues the Board should use the date of May 8, 2015, as the date of 

substantial completion in reaching its decision (app. opp’n at 23). We agree 

with appellant due to the HVAC system not working properly when the 

government took possession. Kinetic Builder’s Inc. v. Peters, 226 F.3d 1307, 

1315-16 (Fed. Cir. 2000) (“A project should be considered substantially 

completed when it is capable of being used for its intended purpose.”) We find 

that a building without a properly functioning HVAC system is not capable of 

being used for its intended purpose. 
19

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

Armed Services Board of Contract Appeals in ASBCA No. 61380, Appeal of GSC 

Construction, Inc., rendered in conformance with the Board’s Charter.

Dated: June 5 2020

PAULLA K. GATES-LEWIS

Recorder, Armed Services

Board of Contract Appeals