ARMED SERVICES BOARD OF CONTRACT APPEALS

Appeal of -- )

)

Zafer Construction Company ) ASBCA No. 56769

)

Under Contract No. W917PM-05-C-0005 )

APPEARANCES FOR THE APPELLANT: Sam Zalman Gdanski, Esq.

 Gdanski & Gdanski, LLP

 Teaneck, NJ

Rebia Unal, Esq.

 General Counsel

APPEARANCES FOR THE GOVERNMENT: Thomas H. Gourlay, Jr., Esq.

 Engineer Chief Trial Attorney

James D. Stephens, Esq.

Michael A. Rea, Esq.

James A. Wallace, Esq.

 Engineer Trial Attorneys

 U.S. Army Engineer District, Middle East

 Winchester, VA

OPINION BY ADMINISTRATIVE JUDGE PAGE

This appeal arises from Contract No. W917PM-05-C-0005 (the contract) between 

appellant, Zafer Construction Company1 (Zafer or appellant), and the Afghanistan 

Engineering District (AED) of the U.S. Army Corps of Engineers (Corps or government) for 

design, renovation, replacement, and repair work on a military hospital campus operated by 

the Afghanistan National Army (ANA) in Kabul, Afghanistan. After fully performing the 

work, Zafer now seeks an additional $4,104,891 (including claim preparation costs) for

renovation work in basements, rooftop technical rooms, and other above-grade areas that it 

contends were not included in its original proposal. Appellant alleges that the omission of 

this alleged additional work from its proposal constituted a unilateral mistake in its proposal

and that the government’s acceptance of the proposal was unconscionable. Appellant also 

suggests in its trial brief that the various subgrade and above-grade areas constitute differing 

site conditions. The appeal is denied.

 1 This is the name of the contractor as used in the contract and numerous contract 

modifications (see, e.g., R4, tabs 5-15). We understand that “Zafer Taahhut 

Insaat ve Ticaret A.S.,” as used by the parties, is the Turkish version of the 

contractor’s name.
2

FINDINGS OF FACT

A. The Afghanistan National Military Hospital in Kabul, AFG

1. The Afghanistan National Military Hospital in Kabul, Afghanistan (ANA 

hospital) is a campus consisting of multiple buildings designed and constructed by the 

Soviet Union from 1970-1973. The buildings of the ANA hospital campus include a 

400-bed patient-care facility, operations and administration buildings, a rehabilitation 

building, an isolation ward, a polytechnic clinic, a morgue, a kitchen/dining facility, a 

laundry facility, a water supply facility, a sewage plant, a central heating plant, and 

quarters for the surgeon general. The ANA hospital has been in continuous use from 

the time of its construction and, over the course of the ensuing decades, its buildings 

succumbed to the ravages of armed conflict and the decay of neglect. By March 2004, 

the buildings on the ANA hospital campus had fallen into varying stages of disrepair, 

ranging from poor to fair. The condition of the major utilities infrastructure ranged 

from non-functional to fair: steam heat boilers and the central heat distribution system 

functioned at reduced capacity; electrical service was deficient; water and sewage 

services were deficient; and many of the elevators on the campus were non-functional. 

(Ex. A-7, 1 August 2012 Dep. of David M. Pecharka (hereinafter ex. A-7) at 91 of 131)

2. In March 2004, the government dispatched an assessment team comprised 

of architects, engineers, and a cost estimator, all of whom were contractors employed 

by Michael Baker Jr., Inc. (Baker), to the ANA hospital to survey the site and assess 

the condition of the buildings and infrastructure. The Baker team was to prepare a 

report that would allow the government to adequately budget for and define the work 

necessary to renovate and rehabilitate the ANA hospital. (Tr. 2/30-31, 34-35, 4/129) 

The scope of the team’s assessment included the following areas and trades: water, 

sewer, electrical, heating, mechanical, and architectural (ex. A-7 at 91 of 131). 

According to Mr. Pecharka, an architect (tr. 2/26, 44) on the Baker team, the team 

also took measurements of the buildings “so that, in the absence of the original plan 

documents we would be able to do our estimates of how much, how large the 

facilities that were needed renovated” (tr. 2/33-34). Upon completing its assessment, 

the Baker team furnished its report (Baker report) to the government (tr. 2/30, 34).

3. The Baker report consisted of a Scope of Work (Baker SOW) (see

findings 4-5), Technical Requirements (see finding 6), a Condition Assessment Report, 

Condition Assessment Photos, a Cost Estimate, a two-phase Design and Construction 

Schedule (see finding 4), and several site and floor plan sketches (see findings 7-8;

ex. A-7 at 3 of 131). 

4. The Baker SOW is found at section 01010 of the Baker report. The Baker

SOW included the following “entire campus” of ANA hospital campus buildings:

Building No. 1 – Hospital Patient Care Building
3

Building No. 2 – Hospital Operations Building

Building No. 3 – Hospital Administration Building

Building No. 4 – Isolation Ward

Building No. 5A – Kitchen

Building No. 5B – Central Heating Plant and Laundry

Building No. 5C – Maintenance Shops

Building No. 6 – Morgue

Building No. 7 – Heating Fuel Pump Station

Building No. 8 – Rehabilitation Building

Building No. 9 – Wastewater Treatment Plant

Building No. 10 – Polytechnic Institute

Building No. 11 – Engineering Offices

Building No. 12 – Surgeon General Quarters

Building No. 13 – Sewage Lift Station Building

Building No. 14 – Command Center

(Ex. A-7 at 5 of 131) The Baker Design and Construction Schedule contemplated two

phases for the renovation work on the ANA hospital campus. Phase 1 included work 

only on the central steam plant (Building No. 5B), the Hospital Patient Care Building

(Building No. 1), and the Hospital Operations Building (Building No. 2). (Ex. A-7 at 

122 of 131)

5. Subsection 1, “General,” of the Baker SOW requires, as relevant:

1.7 ...During the demolition phase and prior to the start of 

new construction work within individual buildings, survey 

the lowest level of each building for areas of standing water.

1.[8][2]

 Numerous functional hospital areas, including exit 

stairs, lobbies, and corridors are currently occupied with 

storage and staff personal areas. Additionally, many patient 

bedrooms are now occupied as staff offices and lounges. At 

the conclusion of dewatering and ventilation of hospital 

basement levels, it is encouraged that these areas be used for 

these purposes, to allow patient care and clinical areas to 

more readily obtain original functions.

(Ex. A-7 at 6 of 131) (Emphasis added)

 2 This paragraph is numerated “1.9.” The succeeding paragraph is “1.8,” and the one 

after that is also “1.9.” We find this to be a typographical error and of no 

significance. The corresponding paragraph of the SOW is numbered “1.8” in 

both the solicitation (see finding 21) and the contract (see finding 58).
4

6. The Technical Requirements are found in section 01015 of the Baker report 

(ex. A-7 at 29 of 131). The Baker Technical Requirements provide in relevant part:

1.12 ORIGINAL PERFORMANCE CRITERIA

Unless otherwise indicated..., the Contractor shall design and 

build renovations to obtain original performance criteria.... 

Hospital engineering personnel shall grant access to full 

original drawing and specification documentation in 

Russian.

(Ex. A-7 at 30 of 131) (Emphasis added)

7. The Baker sketches are eight sketches of the ANA hospital campus, 

consisting of a mix of utility site plans and partial floor plans for some of the buildings 

on the ANA hospital campus. The utility site plans showed the general location of 

water, sewer, steam, and electrical lines at the ANA hospital campus (ex. A-7 at 

124-26 of 131; see also Fig. 1, below). The partial floor plans consisted of the first 

three “floors” of Building No. 1, Building No. 2, and Building No. 3 (ex. A-7 at 127 of 

131; see also Fig. 2, below); a “typical floor plan” for the Building No. 1 showing 

flooring and other design features (ex. A-7 at 130 of 131) (emphasis added); and floor 

plans for Buildings Nos. 5A, 5B, and 5C (ex. A-7 at 131 of 131; see also Fig. 3, 

below). The term “floor” appears in several of the Baker sketches (e.g., ex. A-7 at 

127-29, 130, 131 of 131); the term “story” does not appear in any. 
5

Figure 1 – Baker sketch, electrical site plan (ex. A-7 at 126 of 131)
6

Figure 2 – Baker sketch, “First Floor,” Buildings 1, 2, 3 (ex. A-7 at 127 of 131)
7

Figure 3 – Baker sketch, Buildings 5A, 5B, 5C (ex. A-7 at 131 of 131)

8. No floor plan sketches were provided for any of the other buildings on the 

ANA hospital campus, although all of the campus buildings appear in the site plan 

sketches (e.g., Fig. 1). The scale of the sketches is small, printed on standard 

letter-sized paper, 8.5 inches by 11 inches, in which 1 inch equals 150 meters for site 

plans (e.g., Fig. 1) and approximately 20 meters for the floor plans for Building Nos. 1, 

2, and 3 (e.g., Fig. 2). Buildings are denoted on the site plan sketches by diagonal lines 

(hatching) along the perimeter of the building’s sides, except for Building No. 10, the 

Polytechnic Clinic, which has no hatching on any of its sides. Because Building No. 10 

lacks diagonal hatching on its sides, it is not clear from the site plan sketches whether 

the building surrounds an open courtyard or is itself surrounded by a roadway or 

parking lot. (Ex. A-7 at 124-26 of 131; see also Fig. 1) The floor plan sketches for 

Building Nos. 5A and 5B depict closely-formed and repeated straight lines (ex. A-7 at 

131 of 131; see also Fig. 3). This is a technical symbol that is commonly used to 

denote stairwells.

9. The government relied upon the Baker report to prepare the request for 

proposal that led to the contract (tr. 4/129, 132-33). However, rather than use the Baker 

report’s two-phase Design and Construction Schedule (see finding 4), the government
8

combined the phases, designating the phase 1 buildings as the “base bid” and the phase 

2 buildings as “option bids” (tr. 4/133; see also finding 10).

B. Procurement Background

10. The ANA hospital rehabilitation project was contemplated as a design-build 

effort requiring the contractor to provide design, renovation, replacement, and repair 

work (R4, tab 5 at 1, 104-32).

3

 The “base bid” of the project consisted of the following 

buildings:

Building No. 1 – Hospital Patient Care Building

Building No. 5A – Kitchen

Building No. 5B – Main Electrical Gear and Laundry

Building No. 7 – Heating Fuel Pump Station

Building No. 9 – Wastewater Treatment Plant

Building No. 13 – Sewage Lift Station Building

(R4, tab 4 at 3, 154) The following buildings and project were to be proposed as 

“options”:

Option 1 – Building No. 2 – Hospital Operations Building

Option 2 – Building No. 3 – Hospital Administration Building

Option 3 – Building No. 4 – Isolation Ward

Option 4 – Building No. 8 – Rehabilitation Building

Option 5 – Building No. 10 – Polytechnic Institute[4]

Option 6 – Building No. 6 – Morgue

Option 7 – Building No. 11 – Engineering Offices

Option 8 – Building No. 5C – Maintenance Shops

Option 9 – Building No. 12 – Surgeon General Quarters

Option 10 – Building No. 14 – Command Center

Option 11 – Foundation for phone communication and computers

(R4, tab 4 at 3, 154-55)

 3

 The Rule 4 files are consecutively numbered. At the hearing (tr. 5/34), the Board 

stated that it would just cite to Rule 4 and not annotate “supp. R4” or “app. supp. 

R4” in its citations.

4

 Building No. 10 is referred to as the “Polytechnic Institute” in the solicitation bid 

schedule (R4, tab 4 at 3), paragraph 1.5 of the solicitation SOW (id. at 154), the 

CLIN description for CLIN 0011 of the contract (R4, tab 5 at 6), and 

paragraph 1.5 of the contract SOW (id. at 133). However, Building No. 10 was 

identified throughout the rest of the solicitation and contract SOWs and in the 

Baker sketches as the “Polytechnic Clinic” (see findings 8, 22, 24; Fig. 1). We 

refer to Building No. 10 as the Polytechnic Clinic.
9

11. The government elected to conduct the source selection process as a 

competitive, negotiated procurement pursuant to the procedures set forth in FAR Part 15 

(R4, tab 4 at 1-13, 18-21; tr. 4/133-34). The proposal-evaluation responsibilities of the 

Source Selection Evaluation Team (SSET) were divided between a non-pricing 

technical evaluation team and a price evaluation team (R4, tabs 331, 332; tr. 4/144, 

149). Among the members of the non-pricing technical evaluation team was 

Ms. Elizabeth Carver (R4, tab 331 at 1). 

12. The price evaluation team was chaired by Mr. William D. Mullery (R4, 

tab 332; tr. 4/140, 144). The contracting officer (CO) and Source Selection Authority 

was Dr. Sherry F. Gaylor5 (R4, tabs 331, 332; tr. 3/245).

13. On 1 May 2004, the government issued a pre-solicitation notice for the 

project (R4, tab 56). On 6 June 2004, the government issued a revised notice with a new 

Request for Proposals (RFP) number which was otherwise identical to the 1 May 2004 

notice (R4, tab 57).

C. The Solicitation

14. On 10 July 2004, the government issued RFP No. W917PM-04-R-0011 

(solicitation) (R4, tab 16). Among those who received the solicitation were two of 

Zafer’s employees (id.; tr. 1/108, 2/136-37).

15. The solicitation provided that award would be made on the basis of a 

best-value trade-off. The technical proposal would far outweigh the price: “The four 

non-pricing factors are of equal importance in the evaluation and selection processes. 

The four non-pricing factors, taken as a group, have significantly more weight than the 

pricing factor in the evaluation and selection process.” The solicitation also informed 

potential offerors of the government’s intent to award without discussions, although the 

government reserved the right to enter into discussions if deemed appropriate. (R4, 

tab 4 at 5)

16. The solicitation required offerors to submit an overarching bid schedule 

consisting of contract line item numbers (CLINs) and price amounts for each of the base 

and option bid buildings, as well as separate technical and price proposals (R4, tab 4 at 

3-12). The technical evaluation criteria included consideration of the offeror’s design 

capabilities (id. at 9). With respect to the price evaluation factors, the government 

cautioned potential offerors: “The Government will not be responsible for any 

misunderstandings concerning the basis for costs proposed by an offeror that results 

 5 Dr. Gaylor was identified in the source selection documents as “Ms.” We refer to her 

as CO Gaylor.
10

[sic] from that offeror’s failure to provide written descriptions that are clear, complete, 

and easily understood” (id. at 12).

17. Among the solicitation’s provisions and clauses set out in full text were FAR 

52.215-1, INSTRUCTIONS TO OFFERORS—COMPETITIVE ACQUISITION (JAN 2004) (R4, 

tab 4 at 18); FAR 52.236-2, DIFFERING SITE CONDITIONS (APR 1984) (id. at 80-81); and 

FAR 52.236-3, SITE INVESTIGATION AND CONDITIONS AFFECTING THE WORK 

(APR 1984) (id. at 81). Clauses FAR 52.236-2 and 52.236-3, along with FAR 52.233-1, 

DISPUTES (JUL 2002), were also set forth in full text in the ultimate contract (R4, tab 5 at 

57-60).

18. The Instructions to Offerors provision states in pertinent part:

(a) Definitions. As used in this provision--

“Discussions” are negotiations that occur after establishment 

of the competitive range that may, at the Contracting 

Officer’s discretion, result in the offeror being allowed to 

revise its proposal.

....

“Proposal modification” is a change made to a proposal 

before the solicitation’s closing date and time, or made in 

response to an amendment, or made to correct a mistake at 

any time before award.

“Proposal revision” is a change to a proposal made after the 

solicitation closing date, at the request of or as allowed by a 

Contracting Officer as the result of negotiations.

“Time”, if stated as a number of days, is calculated using 

calendar days, unless otherwise specified, and will include 

Saturdays, Sundays, and legal holidays. However, if the last 

day falls on a Saturday, Sunday, or legal holiday, then the 

period shall include the next working day.

.... 

[(c)](3) Submission, modification, or revision, of proposals.

(i) Offerors are responsible for submitting proposals, and 

any modifications, or revisions, so as to reach the 
11

Government office designated in the solicitation by the time 

specified in the solicitation.... 

(ii)(A) Any proposal, modification, or revision received at 

the Government office designated in the solicitation after the 

exact time specified for receipt of offers is “late” and will 

not be considered unless it is received before award is made, 

the Contracting Officer determines that accepting the late 

offer would not unduly delay the acquisition; and--

(1) If it was transmitted through an electronic commerce 

method authorized by the solicitation, it was received at the 

initial point of entry to the Government infrastructure not 

later than 5:00 p.m. one working day prior to the date 

specified for receipt of proposals; or

(2) There is acceptable evidence to establish that it was 

received at the Government installation designated for 

receipt of offers and was under the Government’s control 

prior to the time set for receipt of offers; or

(3) It is the only proposal received.

(B) However, a late modification of an otherwise successful 

proposal that makes its terms more favorable to the 

Government, will be considered at any time it is received 

and may be accepted.

.... 

(f) Contract award. (1) The Government intends to award a 

contract or contracts resulting from this solicitation to the 

responsible offeror(s) whose proposal(s) represents the best 

value after evaluation in accordance with the factors and 

subfactors in the solicitation.

....

(4) The Government intends to evaluate proposals and award 

a contract without discussions with offerors (except 

clarifications as described in FAR 15.306(a)). Therefore, the 
12

offeror’s initial proposal should contain the offeror’s best 

terms from a cost or price and technical standpoint.

(R4, tab 4 at 18-20) (Emphasis added)

19. The Differing Site Conditions clause provides as relevant:

(a) The Contractor shall promptly, and before the conditions 

are disturbed, give a written notice to the Contracting 

Officer of 

(1) subsurface or latent physical conditions at the site which 

differ materially from those indicated in this contract, or

(2) unknown physical conditions at the site of an unusual 

nature, which differ materially from those ordinarily 

encountered and generally recognized as inhering in work of 

the character provided for in the contract.

....

(c) No request by the Contractor for an equitable adjustment 

to the contract under this clause shall be allowed, unless the 

Contractor has given the written notice required; provided, 

that at the time prescribed in (a) above for giving written 

notice may be extended by the Contracting Officer.

(R4, tab 4 at 80-81, tab 5 at 59) (Emphasis added)

20. The Site Investigations clause imposes on the contractor an affirmative duty 

to perform the following before contract award: take steps reasonably necessary to 

ascertain the nature and location of the work; investigate conditions, both general and 

local, which could affect the work or its cost; and inspect the site so as to ascertain, to 

the extent reasonably practicable, the character, quality, and quantity of surface and 

subsurface materials or obstacles to be encountered. The Site Investigations clause 

states in relevant part:

(a) The Contractor acknowledges that it has taken steps 

reasonably necessary to ascertain the nature and location of 

the work, and that it has investigated and satisfied itself as 

to the general and local conditions which can affect the 

work or its cost, including but not limited to...

....
13

(4) the conformation and conditions of the ground; and 

(5) the character of equipment and facilities needed 

preliminary to and during work performance. The 

Contractor also acknowledges that it has satisfied itself as to 

the character, quality, and quantity of surface and 

subsurface materials or obstacles to be encountered insofar 

as this information is reasonably ascertainable from an 

inspection of the site...as well as from the drawings and 

specifications made a part of this contract. Any failure of

the Contractor to take the actions described and 

acknowledged in this paragraph will not relieve the 

Contractor from responsibility for estimating properly the 

difficulty and cost of successfully performing the work, or for 

proceeding to successfully perform the work without 

additional expense to the Government.

(b) The Government assumes no responsibility for any 

conclusions or interpretations made by the Contractor based 

on the information made available by the Government.

(R4, tab 4 at 81, tab 5 at 59-60) (Emphasis added) 

21. Section 01010 of the solicitation is the scope of work (SOW).

6

 Subsection 1, 

“General,” states in relevant part:

1.7 Provide one self-contained, portable sump pump 

capable of handling liquids and semi-solids, with minimum 

1000W (1.34 HP) motor. Provide four (4) watertight, 

wheeled containers of minimum 0.159 m3 (42 gallon) 

capacity with sealable lids. During the demolition phase and 

prior to the start of new construction work within individual 

buildings, survey the lowest level of each building for areas 

of standing water. Dewater any such areas found and 

transport materials removed to Wastewater Treatment Plant

for disposal. Upon completion of dewatering activity, clean 

affected floor and wall areas with detergent-based solution, 

followed by cleaning with a disinfectant approved by the 

Contracting Officer. Provide portable fans to aid in drying 

affected areas. Upon completion of dewatering activities, 

clean and disinfect the sump pump and containers, then turn 

over to Contracting Officer.

 6 In preparing the SOW, the government relied upon the Baker SOW (see finding 9).
14

1.8 Numerous functional hospital areas, including exit stairs, 

lobbies, and corridors are currently occupied with storage and 

staff personal areas. Additionally, many patient bedrooms are 

now occupied as staff offices and lounges. At the conclusion 

of dewatering and ventilation of hospital basement levels, it is 

encouraged that these areas be used for these purposes, to 

allow patient care and clinical areas to more readily obtain 

original functions. The basement area may also be needed 

for running the new utilities (heating hot water, domestic hot 

water, power, etc).

(R4, tab 4 at 18, 81, 155, 183) (Italics added)

22. Subsection 2 of the solicitation SOW, “Items of Work,” generally describes 

the scope of the work to be performed for each of the buildings on the ANA hospital 

campus, both “base bid” and “option bid” buildings (see finding 10).7

 Subsection 2 

provides, as relevant:

2. Items of Work

....

2.7 Patient Care Building (Building No. 1): Renovate the 

eight-story Hospital Patient Care Building.

2.8 (Option 1) Hospital Operations Building (Building 

No. 2): Renovate the three-story Hospital Operations 

Building.

2.9 Kitchen (Building No. 5A): Renovate exterior and 

interior walls, ceilings, floors, windows, doors, etc. Replace 

walk-in food refrigeration units, stand-alone meat freezer, 

plumbing systems and fixtures, heating system, ventilation 

and exhaust fans, and electrical systems as required at 

Kitchen.... 

2.10 Laundry (Building No. 5B): Renovate exterior and 

interior walls, ceilings, floors, windows, doors, etc. Replace 

 7 The term “story,” as used in paragraphs 2.7 and 2.8 of the solicitation SOW, does not 

appear in subsection 4 of the SOW, “Design Notes – Architectural” (see 

finding 23; R4, tab 4 at 158-61), nor in subsection 5, “Design Notes –

Mechanical” (see finding 24; R4, tab 4 at 162-63).
15

plumbing systems and fixtures, heating system, ventilation 

and exhaust fans, and electrical systems as required at 

Laundry.

2.11 (Option 6) Morgue (Building No. 6): Renovate exterior 

and interior walls, ceilings, floors, windows, doors, etc. 

Replace air-conditioning and ventilation system, and required 

electrical service, for the cadaver storage areas at Morgue. 

Replace plumbing system and fixtures, heating system, 

ventilation and exhaust fans, and electrical systems.

2.12 (Option 3) Isolation Ward (Building No. 4): Renovate 

exterior and interior walls, ceilings, floors, windows, doors, 

etc. Replace plumbing systems and fixtures, heating system, 

ventilation and exhaust fans, and electrical systems as 

required at Isolation Ward.

2.13 (Option 5) Polytechnic Clinic (Building No. 10): 

Renovate exterior and interior walls, ceilings, floors, 

windows, doors, etc. Replace plumbing systems and 

fixtures, heating system, ventilation and exhaust fans, fire 

hoses/valves in existing fire hose cabinets, and electrical 

systems as required at Polytechnic Clinic.

2.14 (Option 4) Rehabilitation Building (Building No. 8): 

Renovate exterior and interior walls, ceilings, floors, 

windows, doors, etc. Replace plumbing systems and 

fixtures, heating system, ventilation and exhaust fans, and 

electrical systems as required at Rehabilitation Building.

2.15 (Option 2) Hospital Administration Building (Building 

No. 3): Renovate exterior and interior walls, ceilings, floors, 

windows, doors, etc. Replace plumbing systems and 

fixtures, heating system, ventilation and exhaust fans, fire 

hoses/valves in existing fire hose cabinets, and electrical 

systems as required at Hospital Administration Building.

2.16 (Option 7) Engineering Offices (Building No. 11): 

Renovate exterior and interior walls, ceilings, floors, 

windows, doors, etc. Replace plumbing systems and 

fixtures, heating system, ventilation and exhaust fans, and 

electrical systems as required at Engineering Offices.
16

2.17 Heating Fuel Pump Stations (Building No. 7): Replace 

fuel distribution pump motors and controls as required at 

Heating Fuel Pump Station.

2.18 (Option 9) Surgeon General Quarters (Building No. 12): 

Renovate exterior and interior walls, ceilings, floors, windows, 

doors, etc. Replace plumbing systems and fixtures, provide 

new heating system and connect to steam tunnel, provide new 

ventilation and exhaust system, and replace electrical systems 

as required at Surgeon General Quarters.

2.19 (Option 8) Maintenance Shops (Building No. 5C): 

Renovate exterior and interior walls, ceilings, floors, 

windows, doors, etc. Replace plumbing systems and 

fixtures, heating system, ventilation and exhaust fans, and 

electrical systems as required at Maintenance Shops.

2.20 Sewage Lift Station Building (Building No. 13): 

Replace existing heating system in kind.

2.21 Wastewater Treatment Plant (Building No. 9): Provide 

heating and ventilation system as required by process systems.

2.22 (Option 10) Command Center (Building No. 14): 

Renovate exterior and interior walls, ceilings, floors, 

windows, doors, etc. Replace heating, ventilation, 

plumbing and electrical systems.

(R4, tab 4 at 156-57) (Bold in original; italics added) In subsection 2, only 

paragraphs 2.7 (Building No. 1) and 2.8 (Building No. 2) specify the number of stories 

in any of the ANA hospital campus buildings. None of the paragraphs in subsection 2 

mention basements. (Id.)

23. Where relevant, subsection 4 of the solicitation SOW uses the term “floor,” 

as indicated:

4. Design Notes – Architectural

....

4.1 Hospital Patient Care Building: the following design 

considerations shall be incorporated into the hospital patient 

care building design.
17

....

4.1.1.11 Repair and replace flat roof area and metal roof 

edge at seventh floor balcony roof. Repair and replace 

quarry tile flooring and metal edges at balcony floors.

....

4.1.5 Renovate deficient interior and exterior areas of 

balance of base bid buildings...in a similar manner to the 

patient care building areas. Renovate wet areas as occur at 

laundry, kitchen et al[.] in manner indicated. Omit 

membrane beneath tile flooring at ground floor wet areas.

....

4.3 (Options 2 thru 10) Balance of hospital campus 

buildings: Renovate deficient interior and exterior areas of 

balance of hospital campus buildings in similar manner to 

patient care building areas. Renovate wet areas as occur at 

laundry, kitchen et al[.] in manner indicated. Omit 

membrane beneath tile flooring at ground floor wet areas.

(R4, tab 4 at 158-61) (Italics added) None of the paragraphs in subsection 4 mention 

basements. Notably, subsection 4 refers to “ground floor” work. (Id.)

24. Subsection 5 of the solicitation SOW, “Design Notes – Mechanical,” does 

not use the term “story,” as used in subsection 2, or the term “ground floor” used in 

subsection 4. Subsection 5 instead uses the term “first floor” throughout, as shown in 

the following relevant excerpts:

5. Design Notes – Mechanical

....

5.2.2 Hospital Patient Care Building (Building No. 1):

5.2.2.1 [Heating, Ventilation, and Air-Conditioning 

(HVAC)] Systems

5.2.2.1.1 Provide a new mechanical room on the first floor

for the heating hot water and the domestic hot water system 

equipment.... 
18

....

5.2.3 (Option 1) Hospital Operations Building (Building 

No. 2):

5.2.3.1 HVAC Systems

Provide a new mechanical room on the first floor for the 

heating hot water and the domestic hot water system 

equipment....

....

5.2.5 (Option 6) Morgue (Building No. 6):

5.2.5.1 HVAC Systems

Provide a new mechanical room on the first floor for the 

heating hot water and the domestic hot water system 

equipment.

.... 

5.2.6 Kitchen (Building No. 5A):

5.2.6.1 HVAC Systems

Provide a new mechanical room on the first floor for the 

heating hot water and the domestic hot water system 

equipment.

....

5.2.7 Laundry (Building No. 5B):

5.2.7.1 HVAC Systems

Provide a new mechanical room on the first floor for the 

heating hot water and the domestic hot water system 

equipment.

....

5.2.8 (Option 5) Polytechnic Clinic (Building No. 10):

5.2.8.1 HVAC Systems
19

Provide a new mechanical room on the first floor for the 

heating hot water and the domestic hot water system 

equipment.

....

5.2.9 (Option 2) Hospital Administration Building 

(Building No. 3):

5.2.9.1 HVAC Systems

Provide a new mechanical room on the first floor for the 

heating hot water and the domestic hot water system 

equipment.

....

5.2.10 (Option 9) Surgeon General Quarters (Building 

No. 12):

5.2.10.1 HVAC Systems

Provide a new mechanical room on the first floor for the 

heating hot water and the domestic hot water system 

equipment.

....

5.2.11 (Option 7) Engineering Offices (Building No. 11):

5.2.11.1 HVAC Systems

Provide a new mechanical room on the first floor for the 

heating hot water and the domestic hot water system 

equipment.

....

5.2.12 (Option 3) Isolation Ward (Building No. 4):

5.2.12.1 HVAC Systems

Provide a new mechanical room on the first floor for the 

heating hot water and the domestic hot water system 

equipment.

....
20

5.2.13 (Option 8) Maintenance Shops (Building No. 5C):

5.2.13.1 HVAC Systems

Provide a new mechanical room on the first floor for the 

heating hot water and the domestic hot water system 

equipment.

....

5.2.14 (Option 4) Rehabilitation Building (Building 

No. 8):

5.2.14.1 HVAC Systems

Provide a new mechanical room on the first floor for the 

heating hot water and the domestic hot water system 

equipment.

(R4, tab 4 at 161-63, 165-73) (Italics added)

25. Basements are mentioned in two paragraphs of subsection 5, as follows:

5.2.2 Hospital Patient Care Building (Building No. 1):

....

5.2.2.2 Plumbing Systems

....

5.2.2.2.4 Replace all existing sanitary drains and vent 

piping, from the individual fixtures to the existing vertical 

risers; replace all sanitary waste lines in the basement; use 

materials and procedures as specified....

....

5.2.3 (Option 1) Hospital Operations Building (Building 

No. 2):

5.2.3.1 HVAC Systems

Provide a new mechanical room.... The mechanical room 

can also be located in the basement if a permanent access 
21

way is provided for removal and replacement of large 

mechanical equipment.

(R4, tab 4 at 162-63) (Italics added)

26. Paragraph 5.1.4 of the solicitation referred potential offerors to 

section 169991, Mechanical Technical Requirements, for technical requirements 

associated with the work to be performed under the contract (R4, tab 4 at 162). The 

Technical Requirements state that the contractor shall obtain original performance 

criteria as described and, accordingly, shall have access to full original drawings and 

specifications, as follows:

1. GENERAL

.... 

1.12 ORIGINAL PERFORMANCE CRITERIA

Unless otherwise indicated (by design calculations, standard 

engineering practice, or specific reference), the Contractor 

shall design and build renovations to obtain original 

performance criteria (i.e., products and craftsmanship shall 

be similar in quality, durability, ease of maintenance, and 

physical characteristics to the existing building components 

and systems). Hospital engineering personnel shall grant 

access to full original drawing and specification 

documentation in Russian.

[8]

(Id. at 181, 183) (Italics added) Additionally, specific requirements applied to running 

HVAC system pipes through “floors above grade,” as follows:

5. MECHANICAL

....

5.2 HVAC SYSTEMS DESIGN REQUIREMENTS

....

 8 These are the “Russian drawings” (R4, tab 4 at 183; tr. 3/19-20; see findings 6, 29, 34, 

36-41, 60).
22

5.9.6 HVAC PIPING TECHNIQUES:

...Provide a fire seal where pipes pass through firewall, fire 

partitions, fire rated pipe chase walls, or floors above grade.

(Id. at 200, 202, 212) (Italics added)

D. Site Visits

27. The record does not include any contemporaneous documentation to 

evidence that a site visit or visits occurred or who among the offerors attended or did not 

attend. The government alleged in post-award correspondence, dated 4 November 2004,

that site visits occurred on 2 and 9 July 2004 and that appellant’s employees had 

attended (R4, tab 24 at 1). On 21 December 2004, several weeks after being reminded 

by appellant that the solicitation was not issued until 10 July 2004 (R4, tab 25), the 

government acknowledged that it had stated the dates of the site inspections incorrectly 

and stated that “[t]he actual site inspections were scheduled on July 12, 2004 and July 

19, 2004” (R4, tab 27 at 1) (emphasis added). Witnesses for the government testified 

that at least one site visit occurred (tr. 4/30, 55-56, 139-40), and that it was attended by 

many (12-15) employees of potential offerors (tr. 4/57-58). Mr. William Mullery, the 

government’s program manager for the ANA hospital rehabilitation project, testified to 

meeting prospective offerors at an entry control point near the entrance to the ANA 

hospital campus (tr. 4/139-140). Mr. Mullery testified that he remembered checking the 

names of contractor employees against a screening list (tr. 4/138-39), but not the date 

that the site visit occurred (tr. 4/138). Another of the government’s witnesses, 

Mr. Webster Shipley III, had no role with the ANA hospital rehabilitation project other 

than to volunteer one day to accompany the group on a site visit to the ANA hospital 

campus (tr. 4/29-30). He testified extensively regarding the route taken by the site visit 

and was able to recount in detail what a participant in the site visit would have been able 

to see and assess (tr. 4/50-59, 64-68, 76-82). According to Mr. Shipley, the site visit 

must have occurred between his organization’s change of command on 4 July 2004 and 

two weeks prior to his departure from Afghanistan on 1 August 2004 (tr. 4/100-01). He 

was unable to be more specific: “we worked every day essentially in that environment, 

so I couldn’t tell you what day of the week it was, either” (tr. 4/30). The CO who 

conducted the site investigation, Mr. Barr, passed away prior to giving testimony 

(tr. 4/82-83). 

28. Despite the lack of specificity in the record as to the date the site visit or 

visits occurred, we find the government’s witnesses to be credible. We find that at least 

one government-sponsored site visit of the ANA hospital campus occurred sometime 

between when the solicitation was issued on 10 July 2004 and 18 July 2004, and that it 

was attended by representatives of potential offerors.
23

29. According to Mr. Shipley, he and CO Barr left the government’s program 

manager, Mr. Mullery, at the entry control point at the entrance to the ANA hospital 

campus. Mr. Mullery was responsible for checking in potential offerors; Mr. Shipley 

and CO Barr waited for the potential offerors to join them under an awning at the west 

end of the Hospital Patient Care Building (Building No. 1). (Tr. 4/54-56; see also

Fig. 1, above) Once the potential offerors had assembled, the tour proceeded to go 

through the main entrance of Building No. 1 and into the lobby, where CO Barr gave his 

introduction to the site visit (tr. 4/57; see also Fig. 2, above). Following introductions, 

the tour went from floor to floor in Building No. 1, using alternatively the elevators or 

the stairs, and visited the basement as well (tr. 4/56-59). The tour crossed over the road 

between Building No. 1 and the Hospital Operations Building (Building No. 2) using the 

elevated walkway. The group spent approximately 20 minutes walking through 

Building No. 2; it is not clear from Mr. Shipley’s testimony whether the tour included

the basement of Building No. 2, but the tour exited Building No. 2 at the southeast 

corner of the building. (Tr. 4/68) They then walked to the southwest corner of the 

building where they could view the Rehabilitation Building (Building No. 8) (tr. 4/77). 

The tour then turned completely about and proceeded eastwards past Building Nos. 5A, 

5C, and 5B (tr. 4/77) to the Engineering Offices (Building No. 11). There, “we actually 

got to view into several of the buildings, and we saw that the engineers...actually had the 

old Russian drawings[9] on the walls.” (Tr. 4/78) From Building No. 11, the tour 

walked east a little farther towards the Wastewater Treatment Plant (Building No. 9). 

They turned around after about a hundred meters and walked back past the north side of 

Building No. 11 and then past the south side of the Morgue (Building No. 6). (Tr. 4/79) 

Proceeding past the south side of the Central Heating Plant and Laundry (Building 

No. 5B), the Maintenance Shops (Building No. 5C), and the Kitchen/Dining Facility 

(Building No. 5A) (tr. 4/79-80), the tour continued to walk toward the Hospital 

Administration Building (Building No. 3) (tr. 4/80). The testimony is not clear as to 

whether the tour actually entered Building Nos. 5A, 5B, 5C, or 6. The tour did enter 

Building No. 3, however, and walked the first and second floors (tr. 4/81-82). After 

touring Building No. 3, the group returned to the awning at the west end of Building 

No. 1 where the CO pointed out to the Surgeon General’s Quarters (Building No. 12) to 

the west (tr. 4/82; see also ex. A-7 at 124-26 of 131; Fig. 1, above). The tour ended 

there, approximately three hours after it began (tr. 4/82, 140).

30. We find that a site-visit participant would have had occasion to visually 

assess most of the accessible ANA hospital campus grounds (tr. 4/67), including the

project buildings (R4, tabs 39-48). Although the campus tour included the interior of at 

least some of the buildings, including basement areas (tr. 3/17, 4/67; R4, tab 39 at 

13-14), we find that the testimony was insufficiently definite for us to find that the tour 

 9 Mr. Shipley testified that the “old Russian drawings on the walls” of the engineering 

offices were drawings of “[t]he [ANA] hospital grounds of themselves in the 

buildings. They were the utility plans and assorted documents.” (Tr. 4/78; 

see also findings 26, 36-41, the discussion of the “Russian drawings”)
24

included every project building or basement. In particular, the government’s witness 

discussed “proceeding past” Building Nos. 5A, 5B, 5C, and 6, while at the same time 

discussing “actually going into” Building Nos. 1, 2, 3, and 9. We find that the tour went 

inside the buildings specified, Building Nos. 1, 2, 3, and 9. Moreover, the government’s 

witness does not mention the Polytechnic Clinic (Building No. 10). We are unable to 

conclude that potential offerors were given an interior visit of Building No. 10 or that 

the site visit of the other project buildings was sufficient to inform potential offerors that 

Building No. 10 had a basement and enclosed an open area (see tr. 2/244-46; compare 

findings 38-39). While there is no proof that an interior visit of Building No. 10 

occurred, the purpose of the site visit was to give potential offerors the opportunity to 

view the buildings on the ANA hospital campus and make such inquiries as would help 

them prepare their proposals. We find that a potential offeror participating in the site 

visit could have either observed the multiple above-grade floors of Building No. 10 from 

various vantage points on the tour or asked CO Barr questions about it.

31. Zafer did not attend a government-sponsored site visit (tr. 2/148). Zafer’s 

chief executive officer (CEO), Mr. Necati Yagci, testified that Zafer generally attends 

government-sponsored site visits when they are offered (tr. 3/199-200). Witnesses for 

appellant and for the government alike testified that, in their experience, when a site 

visit is scheduled the date and time of the visit is specified somewhere in the RFP 

(tr. 2/148, 3/200, 4/90-91). The instant RFP, however, contains no mention of any site 

visit (R4, tab 4). It appears, from the government’s witness testimony, that a request for 

information was sent to potential offerors in order to make security arrangements for a 

site visit (tr. 4/138), but the record does not reflect whether appellant received an 

invitation.

32. Despite its affirmative obligation under the Site Investigations clause to 

inspect the site (finding 20), the record does not reflect that Zafer made any attempt to 

coordinate its own site visit with either the government or the ANA prior to submitting 

its proposal (tr. 3/16, 199). Throughout the source selection it had a workforce located 

in Kabul and the contractor was in constant contact with its personnel (tr. 1/128, 3/14); 

however, Zafer has presented no evidence that any of its workforce visually assessed the 

site. Zafer’s CEO, Mr. Yagci, testified that Zafer did not conduct an independent site 

visit prior to award (tr. 3/127, 199, 211). He explained that, in his view, the Site 

Investigations clause placed no “mandatory obligation” upon Zafer to visit the site 

before preparing its proposal (tr. 3/211). Zafer’s CEO credits himself as “one of the best 

in Turkey that knows about those [FAR] clauses” (tr. 3/213). He testified to his 

understanding that the site investigations discussed in the Site Investigations clause do

not require an actual visit to the site itself (tr. 3/215). It was Mr. Yagci’s opinion that 

site visits are more about general environmental and physical characteristics and 

circumstances than inquiring into specific questions about the SOW:

[The Site Investigations clause] tells you about the 

conditions, in which circumstances you are going to work. 
25

[It] doesn’t tell you about the scope of the work. So, that is 

the difference.

So, site investigation, conditions affecting the work, 

you can get it even from – you get on the website and you 

can get it from CIA fact book, about countries, that what is 

the currency rate, what is the inflation in the country, what is 

the population, what is the energy problems? Is there

sufficient water, sufficient electricity?

So, [the Site Investigations clause] tells you about 

general information about the country. What you are talking 

about the site visit, there is more related with the scope of 

work. So, site visit, even right now, you can just make a 

scope of work and you want me to price it, anywhere in the 

world, and I can go and price it. 

We have the know-how. We know that we have the 

database. We know how to build prices. We know how to 

build the risks and everything. So, we are – we have done it 

many times, hundred times, maybe thousand times, we have 

done it, everywhere.

(Tr. 3/214-15) According to Mr. Yagci, Zafer never requested a site visit (tr. 3/199).

E. “Russian” Drawings

33. On 14 July 2004, the government transmitted the Baker sketches to potential 

offerors, including Zafer’s employees (R4, tab 17; see also R4, tab 345, app’x B at 

239-54; ex. A-7 at 124-31 of 131; findings 7-8). The government’s 14 July 2004 

transmission did not include the “Russian drawings” (see findings 6, 29, 34, 37-40, 60;

R4, tab 17).

34. The “Russian drawings” are discussed in the Baker report (finding 6) and 

section 169991 of the solicitation. These drawings include sketches of the buildings and 

the surrounding campus. (Findings 26, 29) One of the government’s witnesses, 

Mr. Shipley, testified to seeing the Russian drawings mounted on the walls of the 

engineering offices during a site visit of the ANA hospital campus (finding 29). The 

Russian drawings were provided to the Board as part of appellant’s supplement to the 

Rule 4 file (tr. 5/27-31). These consist of the original, Soviet as-built drawings and 

specification documentation in Russian (findings 26, 29, 37; tr. 2/187-88, 5/30). The 

Russian drawings appear to be voluminous, highly-detailed, and specific. Appellant 

had, at some point, translated portions of the drawings into English; these translations 
26

are handwritten directly onto the drawings. However, the drawings are not accompanied 

by a certified English translation.

10 (R4, tabs 341-C, 341-D) 

35. There is no evidence that Zafer made any attempt to obtain the Russian 

drawings from either the government or the ANA prior to submitting its proposal. 

Although Mr. Onder Tumer, Zafer’s government-project coordinator, testified that he 

was not involved in preparing the proposal (tr. 3/7), he also testified that, to the best of 

his knowledge, Zafer did not ask the government for the Russian drawings prior to 

submitting its proposal; that the government did not provide the Russian drawings with 

the solicitation materials; and that he was “pretty sure” that Zafer did not attempt to 

contact the ANA to obtain the drawings before submitting its proposal because Zafer 

“never got into contact with the users, engineers or users, administration” (tr. 3/19-20). 

Zafer’s CEO, Mr. Yagci, whose pre-award involvement with the proposal was limited to 

reviewing it “in general” and approving it for submission to the government 

(tr. 3/163-64, 208; see also findings 47-48), testified that the proposal preparation team 

relied only on the Baker sketches and the “specifications” (tr. 3/176).

36. According to Mr. Tumer, appellant obtained the Russian drawings from the 

government during appellant’s post-award site assessment (tr. 2/187-88). Mr. Tumer

testified that there are “Russian drawings of each and every building in the scope of 

work” (tr. 2/198). Upon receiving the Russian drawings, appellant’s site assessment 

team took some notes, conducted its own site survey, took measurements of the 

buildings, and prepared its own drawings (tr. 2/194, 198-99).

37. Without a certified English translation of the Russian drawings, the Board is 

unable to understand the writing and descriptions thereon. Many of the drawings are 

virtually indistinguishable, and although the buildings in the drawings appear to have 

numbers along some of their sides that could denote measurements, they are 

unfortunately lacking any unit of measure that we can discern. For instance, one small 

portion of the bottom right-hand corner of the building in a Russian drawing labeled 

“7-0B-6” is marked “6000” (R4, tab 341-D, subtab 8), and we are unable to ascertain 

what this denotes. Neither can we reliably determine the measurements of any of the 

buildings from the Russian drawings. Nonetheless, we find that a potential offeror 

possessing the Russian drawings could discern enough information to gain a reasonably 

accurate understanding of the structural features of the pertinent buildings (e.g., whether 

a particular building has multiple floors). This is because, while the writing on the 

drawings is in Russian, the Russian drawings feature a number of commonly-used

 10 Accordingly, the government objected to their admission (tr. 2/192; 5/28). The Board 

admitted the Russian drawings with the understanding that it would not 

unilaterally attempt to interpret the Russian in the drawings, would disregard the 

handwritten translations, and would consider only the drawings themselves, 

particularly the sketches of the buildings, and Mr. Tumer’s testimony describing 

the drawings (tr. 2/192-93, 5/31).
27

technical symbols, such as that denoting stairwells, which convey meaning even without 

certified translations. The Russian drawings “7-0B-4,” “7-0B-5,” “7-0B-6,” “7-0B-7,” 

and “7-0B-8,” discussed below (finding 38), are illustrative.

38. The building depicted in Russian drawings “7-0B-4,” “7-0B-5,” “7-0B-6,” 

“7-0B-7,” and “7-0B-8” possesses a unique distinguishing feature: an open area in the 

center (R4, tab 341-D, subtab 8). Looking more closely at Russian drawing “7-0B-6,”

we can make out three separate stairwells: two along the lowermost corridor, and one 

at the center of the uppermost corridor (R4, tab 341-D). Comparing Russian drawing 

“7-0B-6” to “7-0B-5,” we find that the open area in the center of the building appears 

in both drawings. We also discern the three stairwells that are common to Russian 

drawing “7-0B-6,” as well as an additional stairwell in the center of the left-hand 

corridor (id.). We find that “7-0B-5” depicts the first (i.e., ground) floor of the 

building, while “7-0B-6” depicts an upper floor. Russian drawing “7-0B-7” is quite 

similar to Russian drawing “7-0B-6” (id.), and we find that the former depicts another 

upper floor. Russian drawing “7-0B-8” has an open area in the middle, but no 

stairwells (id.); Russian drawing “7-0B-4” has an open area in the middle and a 

stairwell in the left-hand corridor corresponding to the left-hand stairwell in the firstfloor drawing, “7-0B-5” (id.). We find that Russian drawing “7-0B-4” depicts a 

basement and Russian drawing “7-0B-8” depicts a roof. We therefore find that 

Russian drawings “7-0B-4,” “7-0B-5,” “7-0B-6,” “7-0B-7,” and “7-0B-8” depict 

different floors of the same building and that a potential offeror in possession of these 

drawings could reasonably have known that the building depicted therein had a 

basement and multiple floors at or above grade enclosing an open area. 

39. Comparing the building depictions in the Russian drawings “7-0B-4,” 

“7-0B-5,” “7-0B-6,” “7-0B-7,” and “7-0B-8” (see finding 38) to the Baker report floor 

plan sketches (see finding 7; Figs. 2-3, above), clearly reveals that the building depicted 

in Russian drawings “7-0B-4,” “7-0B-5,” “7-0B-6,” “7-0B-7,” and “7-0B-8” is neither

Building No. 1, the Hospital Patient Care Building; Building No. 2, the Hospital 

Operations Building; Building No. 3, the Hospital Administration Building; nor 

Buildings No. 5A (Kitchen), No. 5B (Main Electrical Gear and Laundry), or No. 5C 

(Maintenance Shops). None of those buildings enclose an open area. Considering the 

Baker sketches; the testimony of appellant’s witness, Mr. Tumer, who described 

Building No. 10 as having a basement, five above-grade floors, and “an empty hole” in 

its “mid-section” (tr. 2/142, 245); and several photographs, identified by the 

government as being of Building No. 10, which show multiple above-grade floors 

surrounding an open area (R4, tab 47), we find that Russian drawings “7-0B-4,” 

“7-0B-5,” “7-0B-6,” “7-0B-7,” and “7-0B-8” depict Building No. 10, the Polytechnic 

Clinic, which is the only building on the ANA hospital campus constructed around an 

open area.

40. The following Russian drawings, each of which depicts another different 

building, also clearly indicate the presence of sub-grade floors or basements by their use 
28

of cutaway views and stairwells: “4-AC-4,” “6-AC-3,” “5-0B-30,” and “19-AC-4” (R4, 

tab 341-D). Comparing these Russian drawings to the Baker report floor plan sketches

(see finding 7; Fig. 2, above), reveals that the buildings depicted in these drawings are 

neither Building No. 1, the Hospital Patient Care Building, nor Building No. 3, the 

Hospital Administration Building. Without certified translations, we cannot specify 

which buildings are depicted in Russian drawings “4-AC-4,” “6-AC-3,” “5-0B-30,” and 

“19-AC-4” (see findings 34, 37). However, a potential offeror in possession of the

Russian drawings would have had notice that several of the ANA hospital campus 

buildings had sub-grade floors or basements. 

41. As noted in the Baker report and the solicitation, and as Mr. Shipley testified, 

the Russian drawings were available in the facility’s engineering offices for inspection 

by prospective offerors (findings 6, 26, 29). Appellant furnished no evidence that it

inspected, or even tried to inspect, the Russian drawings at any time prior to submitting 

its proposal (see finding 35). We find that appellant did not use the Russian drawings to 

prepare its proposal. Indeed, taking into account the testimony of Messrs. Tumer and 

Yagci regarding the Russian drawings (findings 35-36), we find that appellant did not 

obtain the Russian drawings until after the contract was awarded.

F. Appellant’s Proposal Submission

42. The due date for proposals was originally 10 August 2004, which was later 

extended by a week to 17 August 2004 at 4:30 p.m. (Kabul time) (R4, tab 19 at 3, 4). 

Zafer submitted its proposal shortly after the deadline for proposal submissions (R4, 

tabs 18, 19). Although the government did not expressly reject the proposal submission, 

Zafer was advised that the government would only consider the proposal if it was 

determined to be in the best interests of the government (R4, tabs 18, 20).

 

43. Throughout its proposal, Zafer stressed its ability to design a cost-effective 

solution to meet the government’s requirements (R4, tabs 11-13). 

44. Zafer’s price proposal complied with the requirements of section 00100 of 

the solicitation, “Bidding Schedule/Instructions to Bidders.” It consisted of a 

single-page listing, in three columns (“Item No,” “Description,” and “Amount”), of 

prices for each of the CLINs required by the solicitation. (Compare R4, tab 19 at 2, with

R4, tab 4 at 3) Zafer’s proposal did not provide any proposal takeoff sheets, work 

breakdown structure (WBS) documentation showing parameters considered, cost 

indices, historical pricing data, risk analysis, or other materials which might demonstrate 

how it determined the unit rates and area estimations that were used for its calculations 

concerning its anticipated costs to perform the project (R4, tab 19). To explain its price 

proposal assumptions and limitations to the government, Zafer’s proposal provided only

the following paragraph:
29

Price Evaluation Factors:

Since the project is to renovate existing hospital and 

auxiliary buildings, it is assumed [that] no additional 

measure has been taken for the foundations of the buildings 

and that the walls and superstructure are in good condition. 

They will only require minor removal of covering down to 

the substrate works. Existing utilities will be abandoned in 

place or removed to allow for new works. All renovation 

works, electrical, mechanical[,] and site works should be 

done according to specifications and norms.

(Id. at 32) 

45. Zafer alleges that the document located in tab 339, subtab 19, of appellant’s 

Rule 4 file supplement consists of the background calculations that Zafer used to 

prepare its proposal (app. br. at 28; tr. 1/168-83, 3/172-74). These were not provided to 

the government as part of Zafer’s proposal (tr. 1/164). Although it appears that unit 

quantities in several of the tables in subtab 19 are measured in meters or square meters 

(R4, tab 339, subtab 19 at 5, 18-20), appellant cites nothing in these tables that either 

explains how Zafer arrived at its meter/square meter measurements or indicates how 

many above-grade floors and/or basements Zafer assumed for each building. Nor has 

Zafer offered the testimony of anyone contemporaneously involved in the proposal 

preparation process to explain the document. Mr. Yagci testified to having seen the 

document before approving the proposal as part of Zafer’s bid close-out session, but he 

also testified that the proposal preparation team did not discuss the document with him 

“in this detail” (tr. 3/173). He offered no explanation of the rationale and assumptions 

underlying the calculations (tr. 3/172-74; see finding 48). We find the document to lack

probative value as to how Zafer determined the unit rates and area estimations that were 

used for its proposal price calculations.

46. Zafer failed to provide the testimony of anyone who either prepared Zafer’s

proposal or had contemporaneous knowledge of the proposal preparation team’s 

underlying assumptions or the information it used to calculate the square footage of 

buildings on the ANA hospital campus. Appellant’s witnesses testifying about its 

proposal consisted of Zafer’s government-projects coordinator, Mr. Tumer, and its CEO, 

Mr. Yagci. Mr. Tumer testified that he had no role in preparing the proposal (tr. 3/6-7). 

Rather, Mr. Tumer’s testimony regarding the proposal was retrospective, based upon his 

reading of the proposal during the claim preparation process (tr. 3/78-79). Nor did 

Mr. Tumer review the proposal prior to its filing (tr. 1/167, 3/6-7). Mr. Tumer testified 

that he first reviewed the entire proposal only during the course of discovery for this 

proceeding (tr. 1/167). Because Mr. Tumer testified that he had no role in preparing 

Zafer’s proposal and appellant did not establish that he was knowledgeable of the 

calculations and assumptions underlying the proposal, we find the testimony of 
30

Mr. Tumer to lack credibility with respect to the underlying bases for Zafer’s square 

meters calculations or any other assumptions relied upon by Zafer in formulating its 

price proposal.

47. Nor did Mr. Yagci prepare the proposal (tr. 3/208-11). He testified instead 

that his role in the proposal preparation process was to inquire of the preparers the scope 

of work and pricing. He then analyzed Zafer’s risks and gave final approval before the 

proposal was submitted to the government:

Q What is [your role in Zafer’s proposal preparation] 

process? What do you do?

A What I do is, first they tell me what the project 

is.... [T]hey brief me about what the scope of work in 

general is, the square meters, the new construction...they tell 

me the type of the structure and the type of – they describe 

the scope of work.

[S]econd, they tell me how did they make their calculations, 

whether they have made calculate—when they make the 

quantity, how did they make the quantity take-offs, because 

most of those projects, they start to be designed to build.

....

[T]hen I ask how did you arrive [at] the prices? You 

made them. Did you count those prices are based on, did 

you talk with the site if you have—if there are available 

inter-prices, did you talk to them? Did you get them from 

[a] subcontractor? Did you estimate them based on previous 

experience? Did you base—did you get the prices from the 

database, because it is a combination of all these unit prices.

So, they explain to me, what is the rationale, how did 

they arrive.

What I am doing in general is a sort of a risk analysis. 

Actually, my main mission when we bid for the work, 

because every bidding in the solicitation it involves certain 

risks....

So, there are many issues that you need to consider. 

What are the—the risk analysis is very important. What I 
31

am doing is a risk analysis. I ask them questions about the 

bank letter of guarantees, insurance, all these questions.

(Tr. 3/166-68) 

48. Although Mr. Yagci testified about his typical routine for reviewing Zafer 

proposals, his testimony offered little in the way of specific details about his review of 

this particular proposal (tr. 3/160-76, 208-10). Mr. Yagci testified that he saw the 

proposal preparation team’s background calculations (finding 45) before approving the 

proposal and stated that he was aware of the “rationale behind” the calculations 

(tr. 3/173), but he never explained what that rationale was (tr. 3/172-74). Mr. Yagci’s 

testimony included nothing to indicate that he independently verified the square meter

calculations or assumptions made by those who prepared Zafer’s price proposal 

(tr. 3/166-68, 173). While Mr. Yagci testified that Zafer did not conduct a site 

inspection prior to submitting its proposal (tr. 3/199, 211), his testimony gave no 

indication that he was aware of the Russian drawings before the contract was awarded

(tr. 3/176-77; see also finding 35). Mr. Yagci testified that Zafer’s proposal preparation 

team used the Baker sketches provided by the government to prepare its proposal 

(tr. 3/176; finding 35); however there is no contemporaneous evidence tying appellant’s 

price proposal to the Baker sketches. Nor is there contemporaneous evidence from 

Mr. Yagci or another witness for Zafer indicating how appellant’s price proposal 

preparation team made the area calculations it used to price the proposal (see findings 8, 

44-46). As with Mr. Tumer (finding 46), we do not find the testimony of Mr. Yagci to 

be credible with respect to the underlying bases for Zafer’s square meter calculations or 

any other assumptions relied upon by Zafer in formulating its price proposal.

49. The record does not support any findings respecting the underlying 

assumptions of Zafer’s proposal preparation team or the information it used to calculate 

square meters. The record does not reflect that Zafer asked the government any 

questions about the solicitation, the Baker sketches, or the ANA hospital campus at any 

point in its proposal preparation. We find that appellant failed to show that it raised any 

inquiry to the government regarding the project site or the scope of work prior to 

submitting its proposal.

G. The Government’s Proposal Evaluations and Contract Award

50. The government received a total of nine proposals, including Zafer’s late 

submittal (R4, tab 60). The government spent several weeks evaluating the proposals 

and deciding upon its negotiating position in the event it elected to engage in discussions 

(R4, tabs 59-60, 333).

51. The government’s price evaluation team performed a price evaluation 

comparing its own independent government estimate (IGE) with all nine price proposals 

submitted for the competition, including the technically unacceptable ones and Zafer’s 
32

late-submitted proposal. The IGE consisted of a Base Bid amount of $16,977,904 and 

an Options amount of $12,971,516, totaling $29,949,420. Zafer’s proposed price 

consisted of a Base Bid amount of $10,940,557 and an Options amount of $6,009,645, 

resulting in a total proposed price of $16,950,202. Zafer’s chief competitor for the 

project, Kolin Construction Company (KCC), proposed a Base Bid amount of 

$14,134,000 and an Options amount of $9,566,000 for a total price of $23,700,000.

(R4, tab 333 at 26) Zafer’s total proposed price for these was roughly 28% less than that 

of KCC and about 43% less than the total IGE. The total price proposed by KCC was 

approximately 21% less than the total IGE. The SSET, after considering the prices

proposed, determined that Zafer’s proposal was complete and reasonable and 

represented a low risk (R4, tab 332 at 2-3).

52. On 26 August 2004, CO Gaylor signed a memorandum to advance the source 

selection process. The memorandum, entitled “Non-pricing (Technical) Evaluation,” 

reviewed the strengths and weaknesses of each proposal in relation to the technical 

evaluation criteria, as reported to the CO by the technical evaluation team. Despite its 

title, however, the memorandum also includes a summary of the price evaluation 

conducted by Mr. Mullery’s price evaluation team and concludes with a best value 

determination. (R4, tab 60) According to this memorandum, appellant’s principal 

competitor, KCC, was rated “excellent” and “low risk” in every technical evaluation 

category (id. at 2-4 of 19). KCC proposed to subcontract with an American company, 

Centrax of Louisville, Kentucky, for the design portion of the contract (id. at 3 of 19). 

Zafer’s technical proposal was not rated as highly as KCC, with Zafer being rated 

“good” or “very good” in several categories (id. at 7-9 of 19). The memorandum 

included the following findings: 

a. [KCC’s] proposal is 21 percent below the IGE including 

all options. The offeror is low risk in pricing evaluations. 

The offeror’s subcontractor for the design is base[d] in the 

USA, this means the overhead is higher compare[d] to [a] 

local designer.

....

c. ZAFER cost proposal is 43.4 percent below the IGE 

including all option items. The offeror is low risk of the 

price evaluations. The cost of the firm is lower compare[d] 

to [KCC] because the firm has an in-house designer. This 

will cut overhead cost.

(Id. at 18 of 19) (Emphasis added)
33

53. On Sunday 29 August 2004, the CO sent Zafer an email with the following:

We are in the process of reviewing your bid proposal....

We would ask at this time you review what you submitted as 

your proposal and verify your proposal prices as the total 

price of $16,950,202.00. This price included the base bid 

and the Options.

Please respond to this email no later than 4:00PM on 30 August 

2004.

(R4, tab 21) Monday, 30 August 2004 was a national holiday in Turkey (tr. 3/183).

54. By email on 31 August 2004, Zafer responded as follows:

This email is to confirm that as Zafer Construction Co., our 

offer for ANA Military Hospital [RFP] is $16,950,202.-

including base bid and optional bid items.

(R4, tab 21) Zafer did not furnish the testimony of any employee who was actually 

involved in verifying the proposal.

55. Despite its greater technical ratings, KCC was not awarded the contract 

because CO Gaylor determined that the difference in its technical rating did not warrant 

paying the price premium for the greater overhead of a design subcontractor based in the 

United States (R4, tab 333 at 11, 26-27; see also finding 52).

56. There is no evidence that CO Gaylor had knowledge of the mistake appellant 

alleges occurred in its proposal preparation that resulted in Zafer’s underestimation of 

the work required. She testified that she intended only to award the contract to a “good 

contractor, that could complete [the] project in a timely manner, had good performance 

records, and provided the best value,” and not to “set up” a contractor for failure by 

awarding to a contractor with an unreasonable, low offer (tr. 3/290). We find that CO 

Gaylor believed the difference in price between the KCC proposal and Zafer’s proposal 

was the result of the difference in overhead (finding 55), which in turn resulted from 

KCC’s choice to subcontract the design work to a firm based in the United States.

57. On 8 October 2004, the government awarded the contract to Zafer in the 

amount of $16,508,725 (R4, tab 5 at 1). The contract included firm-fixed price CLINs 

for the following buildings on the ANA hospital campus:

CLIN 0001 – Building No. 1, Hospital Patient Care Building

CLIN 0002 – Building No. 5A, Kitchen
34

CLIN 0003 – Building No. 5B, Main Electrical Gear and Laundry

CLIN 0004 – Building No. 7, Heating Fuel Pump Station

CLIN 0005 – Building No. 9, Wastewater Treatment Plant

CLIN 0006 – Building No. 13, Sewage Lift Station Building

CLIN 0007 – Building No. 2, Hospital Operations Building

CLIN 0008 – Building No. 3, Hospital Administration Building

CLIN 0009 – Building No. 4, Isolation Ward

CLIN 0010 – Building No. 8, Rehabilitation Building

CLIN 0011 – Building No. 10, Polytechnic Institute

CLIN 0012 – Building No. 6, Morgue

CLIN 0013 – Building No. 11, Engineering Offices

CLIN 0014 – Building No. 5C, Maintenance Shops

CLIN 0015 – Building No. 12, Surgeon General Quarters

CLIN 0016 – Building No. 14, Command Center

(R4, tab 5 at 3-8)

58. The contract SOW and Technical Requirements are identical to those in the

solicitation (compare R4, tab 4 at 154-76 (Scope of Work), at 181-230 (Technical 

Requirements), with R4, tab 5 at 133-55 (Scope of Work), at 160-209 (Technical 

Requirements); see also findings 17-26).

H. Post-Award Discussions

59. The government gave Zafer the notice to proceed on 12 October 2004 (R4, 

tab 22).

60. Following receipt of the notice to proceed, appellant conducted a post-award, 

pre-construction site assessment visit (tr. 2/184). This pre-construction site visit 

included a tour of the basement levels of the project buildings,

11 during which 

appellant’s employees measured the building area in order to prepare their own 

drawings (tr. 2/198-201). During its site visit, Zafer also obtained the Russian drawings

(see finding 36) and used these to develop its own drawings (tr. 2/186-89, 193-97).

61. Appellant’s witness, Mr. Tumer, testified that many of the basements in the 

ANA hospital campus buildings came as a surprise to appellant’s site assessment team, 

including the basement in the eight-story Hospital Patient Care Building, Building No. 1 

(tr. 2/139-42). Additionally, appellant’s site assessment team discovered that the 

Polytechnic Clinic, Building No. 10, not only had a basement, it had multiple 

above-grade floors (tr. 2/142), and an enclosed, open area (tr. 2/245; see also

 11 Prospective contractors that participated in the site tour prior to submission of their 

proposals were afforded the opportunity to visit the ANA hospital campus and 

see the buildings (see finding 29).
35

findings 30, 39, which indicate relevant information the contractor would have learned 

from a pre-award site visit).

62. Appellant contends that, upon realizing that it had significantly miscalculated 

its estimated work area, and in particular had not accounted for certain basements and 

above-grade areas in the project buildings on the ANA hospital campus, it promptly 

brought the matter to the attention of the contracting officer’s representative (COR),

Elizabeth Carver. Appellant explained to the COR that it had calculated its estimated 

work area using only the Baker sketches provided by the government on 14 July 2004. 

In its 21 October 2004 letter, appellant stated: “Since we are in the very early stages of 

the contract we need to bring this issue to your attention, with the hope to eliminate 

future conflicts and discussions regarding this situation.” Although appellant’s letter 

indicates that CO Gaylor was to be copied on the email transmittal of the letter, her 

name was misspelled as “Gaylord” in the letter, suggesting that it was also misspelled 

on the email. (R4, tab 23; tr. 3/274) The email transmitting Zafer’s 21 October 2004 

correspondence is not in the record. CO Gaylor testified that she did not recall seeing

Zafer’s 21 October 2004 correspondence (tr. 3/275, 283). 

63. By response letter dated 27 October 2004, COR Carver informed appellant 

that site inspections were held on 2 and 9 July 2004, and Zafer employees were in 

attendance. Moreover, the COR explained that no drawings had been provided to 

offerors, only site plans, and that the “dimensions and number of stories” of buildings 

were visible from a site inspection. Finally, COR Carver pointed out to appellant that 

paragraph 1.7 of section 01020 of the SOW required appellant to “survey the lowest 

level...for areas of standing water,” which the COR noted “emphasized [the need] to 

survey the basement or the lower part of the building.” (R4, tab 24) We find that 

COR Carver’s use of “CF:” at the end of her response letter indicates that she intended it 

to be seen also by “CEAED (Kuligowski, Swartz, Gaylor, Ali, Eldr[e]d)” (id.) 

(emphasis added). Although the email transmitting COR Carver’s 27 October 2004 

response is not in the record, we find that a copy of COR Carver’s response was 

provided to CO Gaylor. We find that regardless of whether CO Gaylor received the

email transmitting Zafer’s 21 October 2004 correspondence (finding 62), CO Gaylor 

was aware of its substance.

64. Appellant responded by letter dated 4 November 2004, reminding 

COR Carver that the solicitation had not even been issued until 10 July 2004 and 

reiterating its understanding that it had received drawings as part of the solicitation

package. Again, the letter indicates that CO Gaylor was to be copied on the email 

transmission but, again, her name was misspelled. (R4, tab 25; tr. 3/284) CO Gaylor 

testified that she did not recall having seen Zafer’s 4 November 2004 correspondence

(tr. 3/285-86). There is no evidence in the record that CO Gaylor actually received it.

65. By letter dated 21 December 2004, COR Carver responded to Zafer’s 

4 November 2004 letter. She acknowledged her error with respect to the dates of the 
36

site visit: “The actual site inspections were scheduled on July 12, 2004 and July 19, 

2004.” The COR also acknowledged the existence of the Baker sketches in the 

solicitation, but stated that “these drawings were insufficient to use for quantity take 

off.” COR Carver’s “CF:” at the end of the correspondence again indicates circulation 

of the letter, but this time only to “CEAED (Swartz, Sheridan, Eldred).” (R4, tab 27) 

CO Gaylor was no longer in-country by 21 December 2004 (tr. 3/286).

I. Request for Equitable Adjustment and Modification of the Contract12

66. By letter dated 11 April 2006, appellant submitted a request for equitable 

adjustment (REA) to account for schedule impacts allegedly resulting from various 

events beginning as early as the date of issuance of the notice to proceed, 12 October 

2004 (see finding 59). The specific circumstances of those various events, set forth in 

paragraphs 1 and 3-7 of the REA, are not relevant to the instant dispute. The topical 

headings for those paragraphs are: “1. Delayed Site Access”; “3. Untimely changed 

decisions and late delivery of some information during the design phases”; 

“4. Change Orders”; “5. Differing/Unforeseen Site conditions” involving elevators, 

ductwork, and risers; “6. Stoppage of the work due to potential terrorist actions, 

hindered site accesses and similar incidents”; and “7. Changes to the Phasing Plan 

& Delays due to late delivery of the buildings.” (R4, tab 323) Appellant requested a 

time extension of 172 calendar days and an equitable adjustment of $1,542,002.48 (id. at 

6). Appellant’s REA did not include the certification required by 10 U.S.C. § 2410(a). 

67. Paragraph 2 of the 11 April 2006 REA, which is relevant to the parties’ 

dispute before us, stated the following:

2. Differing site conditions

Immediately after the first inspection of the compound, 

ZAFER determined that some of the buildings were 

significantly different than defined in the bid documents.

There was a difference between the area calculated 

according to the bid drawings and the actual area. There 

is approximately 13,000 sqm more area, which 

corresponds to a 41% increase above the calculated area. 

This issue was brought to COE’s attention via ZAFER

serial letter No:1 dated 21.Oct.2004.

 12 The facts in this section (findings 66-68) regarding Zafer’s 11 April 2006 request for 

equitable adjustment and the subsequent bilateral contract Modification 

No. P00010, relate to the government’s affirmative defense of accord and

satisfaction.
37

ZAFER is in the process of preparing a REA for the 

additional work performed due to area increase and will 

be submitted to COE as soon as possible. This increase in 

renovation area has had an impact on the overall project 

resource planning and the related performance period.

(R4, tab 323 at 2) (Italics added) Zafer thus removed from the scope of its 11 April 

2006 REA a request for compensation for “work performed due to area increase,”

amounting to “a 41% increase above the calculated area” in its proposal (id.). Zafer 

identified this issue as having been the subject of its 21 October 2004 correspondence

(id.; see also finding 62). Zafer’s assertions regarding “additional work performed” 

were later made part of its claim of 13 June 2008 (R4, tab 3 at 51 of 51). 

68. In response to appellant’s 11 April 2006 REA, the parties executed contract 

Modification No. P00010 with an effective date of 25 July 2006 (R4, tab 15 at 1). The 

bilateral modification is described as being “necessary to provide for an Equitable 

Adjustment to the contract[] for Time Delays during the period of October 12, 2004 to 

July 22, 2006, inclusive” (id. at 1-2). By this modification, the parties agreed to increase

the contract value by $1,023,000 and extend the period of performance by 160 calendar 

days (id. at 3). Modification No. P00010 included waiver language which stated in 

pertinent part:

In consideration of the modification agreed to herein as 

complete equitable adjustment for the Contractor’s 

“Proposal for Adjustment”, submitted by letter dated 

April 11, 2006 for all changes as described in this 

modification, the Contractor hereby releases the Government 

from any and all liability under this contract for further 

equitable adjustments attributable to such facts or 

circumstances giving rise to the “proposals for adjustment”.

(Id. at 3) (Emphasis added)

J. Claim, Final Decision, and Appeal

69. By letter dated 13 June 2008, appellant submitted a certified claim for 

$4,104,891 for renovation work done in basements and rooftop mechanical rooms, 

alleging that “the extent of the works carried out on site was far in excess of [that] 

described in the Solicitation documentation” (R4, tab 3 at 1 of 2, 3 of 51). 

70. For example, claiming that there were floors “additional” to the eight stories 

specified in the solicitation, Zafer sought $269,795 for renovations to the basement and

$155,652 for the rooftop “Winter Garden” of the Hospital Patient Care Building 

(Building No. 1) (R4, tab 3 at 16-18, 20, 34 of 51). In calculating the increased cost of 
38

renovation work to these “additional” floors, appellant “recogni[z]ed that all of [the] 

floors are not necessarily the same” and grouped them into the following categories: “i. 

Work in the standard ‘typical’ floors; ii. Work in the basements; [and] iii. Work in the 

technical floors at the attic; (the scope of work carried out was different in each 

category)” (id. at 32 of 51). “Typical” floors were defined as being “more or less 

identical to the ones allowed for in the original contract. As a consequence[,] the value 

per m[2] is the same as that included in the original tender[,] thus removing any 

possibility of ambiguity.” Regarding the second category of floors, “basements,” Zafer 

alleged that the “intensity of the civil, mechanical, and electrical works performed was 

less than that carried out in the [typical] floor of the same building.” Thus, the 

additional scope of work for basements was determined to be 35% of that of a typical 

floor for “civil”; the “electrical” was determined to be 30%; and “mechanical” was 20%. 

The rooftop mechanical rooms, or “attics,” were also of lesser “intensity” than typical 

floors. For these, the additional scope of work was given as follows: civil was 40% of 

the value for a typical floor; electrical was 30%; and mechanical was 25%. (Id. at 32-33 

of 51) Although the contractor characterized the “Winter Garden” on the top floor of 

Building No. 1 as being a “special area for the ANA Generals,” for “reasons of 

simplicity, the scope of work [for the Winter Garden was] assumed to be equal to that of 

a typical floor” (id. at 33 of 51). 

71. Zafer’s claim breakdown for Building No. 1, below, is illustrative of the 

manner in which Zafer proposed its claim for each building in which it allegedly

performed additional work:

Contract Allowance

Total Value included in Contract Sum $8,095,237

Value of Civils element $3,940,078

Value of Electrical element $2,384,254

Value of Mechanical element $1,770,905

Number of Stor[ies] included in the Bid Proposal 8

Total area included in Bid Proposal[13] 18,560 m2

Area per floor 2,320 m2

 13 We note that the “Total area included in Bid Proposal” of 18,560 square meters, as 

cited in the claim, corresponds to certain Building No. 1 unit quantities in the 

undated document Zafer alleges to be its proposal background calculations (R4, 

tab 302 at 5, 18). However, the latter document is silent as to the underlying 

assumptions and rationale of the proposal preparers, upon which the area 

estimations are based (see finding 45). 
39

Value per m2 $436 / m2

Actual

Actual number of Stor[ies] 10

Additional stor[ies]

1) Basement,

2) Ninth Floor 

Winter Garden

Value of additional Basement.

(2,047 m2 @ $131.80 / m2)

Rate of $131.80/m2 adjusted to reflect change in work 

element.[14]

$269,795

Value of additional Ninth Floor Winter Garden.

(357 m2 @ $436 / m2)

Rate of $436.00/m2 adjusted to reflect change in work element.[15]

$155,652

(R4, tab 3 at 34 of 51; see also id. at 35-48 of 51 for similar calculations for other 

buildings)

72. Zafer summarized its entire claim in the following “EVALUATION 

SUMMARY”:

Ref Building 

Number Basement Second Floor

Third 

Floor

Fourth 

Floor

Ninth 

Floor Total

1 [No. 1] $269,795 $155,652 $425,447

2 [No. 5A] $50,917 $0.00 $50,917

3 [No. 5B] $16,889 $0.00 $16,889

4 [No. 7] $22,651 $22,651

5 [No. 9] n/a

6 [No. 13] n/a

7 [No. 2] $109,075 $167,001 $276,076

 14 The adjusted rate for basements was calculated as follows: 

Civils: ($3,940,078 / 2,320 m2 = $212.29 / m2

) * 0.35 = $74.3 / m2; 

Electrical: ($2,384,245 / 2,320 m2 = $128.46 / m2

) * 0.3 = $38.5 / m2; and

Mechanical: ($1,770,905 / 2,320 m2 = $95.42 / m2

) * 0.2 = $19 / m2.

Total adjusted rate: $74.3 / m2 + $38.5 / m2 + $19 / m2 = $131.80 / m2 

(see finding 70).

15 The rate for the “Winter Garden” was not actually adjusted (finding 70).
40

8 [No. 3] $66,218 $77,007 $143,225

9 [No. 4] $118,042 $376,068 $494,110

10 [No. 8] $61,862 $100,270 $14,019 $176,151

11 [No. 10] $262,851 $836,290 $839,020 $309,624 $2,247,785

12 [No. 6] $60,846 $68,661 $129,507

13 [No. 11] n/a

14 [No. 5C] $79,433 $0.00 $79,433

15 [No. 14] n/a

Sub-Total $4,062,191

16 EC Harris Claim preparation costs $42,700

TOTAL CLAIM VALUE $4,104,891

(R4, tab 3 at 50 of 51)

73. In particular, Zafer claimed $109,075 for renovation work in the basement of 

the Hospital Operations Building (Building No. 2) (R4, tab 3 at 40 of 51), which it 

alleged was an “additional” story beyond the three specified in the solicitation (id. at 21 

of 51). Of the total amount claimed for alleged additional work on the ANA hospital

campus buildings, over half – $2,247,785 – related specifically to the multi-floor 

Polytechnic Clinic (Building No. 10), which Zafer allegedly assumed was a single-story 

building (id. at 19, 21, 50 of 51; tr. 2/232). Additionally, Zafer claimed $42,700 for 

claim preparation costs (R4, tab 3 at 49-50 of 51).

74. Zafer’s claim alleged several bases of entitlement: first, that while “there are 

no ambiguities” in the solicitation, there was an “inconsistency between the RFP 

documents and [the] intended scope of work which was reali[z]ed after the site 

handover” (R4, tab 3 at 23 of 51). Zafer alleged that in preparing its proposal it had 

relied upon the Baker sketches that the government provided as part of the solicitation

(id. at 22, 23 of 51). According to appellant, “[t]he additional work carried out by Zafer 

was “a direct result of the Contract documentation not being representative of the actual 

extent of the works that the CoE required to be carried out” (id. at 28 of 51). Zafer 

further asserted that “the Solicitation information was prepared by the [government] and 

accordingly any ambiguities contained therein will be governed by the legal doctrine of 

contra proferentum” (sic) (id. at 23 of 51). Finally, appellant alleged that its 

miscalculation of the area of work to be performed on the buildings on the ANA 

hospital campus constituted a “mistake in bid” which the government had a duty to 

meaningfully verify prior to awarding the contract. Citing the “significant disparity” 

between Zafer’s proposed price and the government’s independent estimate, appellant 

argued that this should have raised a presumption of error in the mind of the CO. (Id. at 
41

23-27 of 51) Included in Zafer’s claim were documents intended to support its reading 

of the solicitation and its pricing methodology. However, Zafer failed to include any 

supporting testimony or documentation to explain its original price proposal (e.g., 

proposal takeoff sheets, WBS documentation of parameters considered, cost indices, 

historical pricing data, risk analysis, etc.) (see findings 44-46). (R4, tab 345)

75. On 14 March 2009, the government denied the 13 June 2008 claim. The 

14 March 2009 CO’s final decision made no mention of either Zafer’s 11 April 2006 

REA (see findings 65, 67) or Modification No. P00010 (see finding 68). (R4, tab 2)

76. Appellant timely appealed on 17 March 2009.

DECISION

Appellant has presented the Board with allegations of a CO overreaching by

accepting a proposal that the government knew or should have known was erroneous. 

The solicitation and contract imposed an affirmative duty upon the contractor to inspect 

the site before submitting its proposal, and employees of the contractor were already 

positioned relatively near to the site and could have performed such an inspection, yet 

the contractor made no effort to inspect the site until after contract award. The 

solicitation, which was accompanied by sketches but not technical drawings, informed 

potential offerors that original, as-built technical drawings were available, but the 

contractor did not seek to obtain them until after contract award. The contractor asked 

no questions until after contract award. Without having inspected the site, reviewed the 

technical drawings, or asked anything during the proposal stages, the contractor 

submitted a multimillion dollar proposal for a complex project to rebuild and renovate a 

30-year-old hospital campus consisting of 16 separate buildings, including a 400-bed 

patient-care facility. When the government asked the contractor to verify its proposal 

price prior to award, the contractor promptly confirmed it. Only after the contract was 

awarded and the contractor finally inspected the site and reviewed the technical 

drawings did Zafer realize that its proposal was in error. 

Now, the contractor seeks to shift onto the government the responsibility for its 

failures to inspect and inquire prior to making its proposal. Zafer contends that: it is 

entitled to contract reformation because it made a mistake in preparing its proposal

based on a misreading of the specifications; the government should have known about 

the mistake based on a comparison of Zafer’s proposal price to the IGE, and therefore 

the government should have asked Zafer to verify its proposal price; the government’s 

request for verification was insufficiently definite; and Zafer can show what its proposal 

would have been but for the error (app. br. at 77-103). Zafer also contends, in various 

places throughout its mistake argument, that the government’s acceptance of the 

allegedly-mistaken proposal price was unconscionable (app. br. at 3, 80, 90, 103). 

Finally, Zafer asserts that “[i]f the Board determines in this case that this a differing site 
42

condition,” then Zafer is entitled to relief due to the existence of differing site16

conditions, as well (app. br. at 103-07).

We will consider appellant’s arguments in turn. We have jurisdiction to 

adjudicate this dispute pursuant to the Contract Disputes Act, 41 U.S.C. §§ 7101-7109. 

A. Unilateral Mistake17

The parties have devoted considerable attention to whether the unilateral mistake 

doctrine applies equally to negotiated procurements such as the one here, which was 

procured under the procedures in FAR part 15, as it does to sealed-bid procurements 

(app. br. at 93; gov’t br. at 29, 33-34; app. reply br. at 7-9; gov’t reply br. at 1-2). Even 

assuming, arguendo, that the unilateral mistake doctrine applies with equal vigor to 

FAR Part 15 procurements, appellant has failed to show by clear and convincing 

evidence that it met the requirements of the doctrine.

As we understand appellant’s briefs, Zafer attempts to support its claim with the 

legal argument that it is entitled to recover because it made a unilateral mistake in its 

proposal (app. br. at 77-91). However, Zafer does not articulate facts to support such a 

holding. 

In order to recover under the doctrine of unilateral mistake, Zafer bears the 

burden of proving, by clear and convincing evidence, the following elements:

(1) [A] mistake in fact occurred prior to contract award;

(2) the mistake was a clear-cut, clerical or mathematical 

error or a misreading of the specifications and not a 

judgmental error; (3) prior to award, the Government knew, 

or should have known, that a mistake had been made and, 

therefore, should have requested bid verification; (4) the 

Government did not request bid verification or its request for 

 16 Zafer uses the terms “differing site condition” and “change condition” 

interchangeably, although it seems to prefer the latter (app. br. at 103-07). In our 

discussion, we will use the term “differing site condition.”

17 Throughout its briefs, Zafer refers to its mistake argument as “mistake in bid” (app. 

br. at 3, 77-103), but also “mistaken bid” (id. at 2, 3, 6, 19) and “unilateral 

mistake” (id. at 90, 91, 93), and once even mentions in passing “mutual mistake” 

(id. at 90). Because the contours of appellant’s mistake argument (id. at 77-91), 

and the underlying claim (see finding 74), conform to the elements of unilateral 

mistake, specifically, we consider them according to that doctrine. Cf. River 

Ridge Dev. Auth., ASBCA No. 58981, 16-1 BCA ¶ 36,314 at 177,057 

(discussing the doctrine of mutual mistake).
43

bid verification was inadequate; and (5) proof of the 

intended bid is established.

McClure Elec. Constructors, Inc. v. Dalton, 132 F.3d 709, 711 (Fed. Cir. 1997). “Clear 

and convincing evidence” is “evidence which produces in the mind of the trier of fact an 

abiding conviction that the truth of a factual contention is ‘highly probable.’” Am-Pro 

Protective Agency, Inc. v. United States, 281 F.3d 1234, 1239-40 (Fed. Cir. 2002). 

Rather than meet this high burden, Zafer seeks to shift the burden of responsibility for 

having underpriced its proposal by asserting that the government acted unconscionably 

by accepting its late-submitted proposal without a meaningful request for verification 

(app. br. at 80-103). 

We note that elements 3 and 4 of the criteria set forth in McClure pertain to 

government knowledge or action; they do not focus on what Zafer must prove about its 

own actions as a contractor. Assuming solely for the purposes of argument (and we do 

not so find) that the government knew or should have known that a mistake had been 

made and that its request for proposal verification was inadequate (see elements 3 and 4), 

Zafer has not demonstrated entitlement to contract reformation using the appropriate 

yardstick and, accordingly, its arguments come up short. The five elements of unilateral 

mistake which the contractor must show by “clear and convincing evidence” are 

normally conjunctive, not disjunctive18: to prevail, appellant must demonstrate that each 

and every element is satisfied. E.g., McClure, 132 F.3d at 711-12 (contractor’s unilateral 

mistake claim failed where contractor was unable to show by clear and convincing one of 

the five enumerated elements).

19 In particular, Zafer has not proven elements 1, 2, or 5 as 

a threshold matter, which require production of evidence within appellant’s purview.

 18 In extreme cases that may be factually distinguished from the instant appeal, the 

government’s pre-award inquiry has been found so deficient that it failed in its 

duty to inform the prospective bidder of an error. See, e.g., United States v. 

Hamilton Enters., Inc., 711 F.2d 1038, 1046 (Fed. Cir. 2000). However, for a 

contractor to recover under even those circumstances, it must also prove the 

proper elements for reformation. These are “that the error resulted from a ‘clear 

cut clerical or arithmetical effort, or a misreading of the specifications.’” Id., 

(citations omitted). Where the contractor fails to meet this burden, “it is well 

established that an erroneous bid based upon a mistake in judgment does not 

entitle the contractor to reformation of its contract.” Id. at 1048 (citations 

omitted).

19 A contractor must prove all of the elements articulated in McClure. Where a 

contractor fails to establish any of these, our decisions typically treat an 

examination of remaining elements as unnecessary. See, e.g., PGDC/TENG Joint 

Venture, ASBCA No. 56573, 10-1 BCA ¶ 34,423 at 169,926; Altos Federal 

Group, ASBCA No. 53523, 07-2 BCA ¶ 33,657 at 166,676; and Ellis 

Environmental Group, LC, ASBCA No. 54066, 07-1 BCA ¶ 33,551 at 166,163.
44

1. The first element: A mistake in fact occurred prior to contract award

Appellant has not shown by clear and convincing evidence that its proposal was 

based on or embodies a mistake. We have found a lack of credibility in the testimony of 

Messrs. Tumer and Yagci, which said that appellant’s proposal was based on the Baker 

sketches and the SOW and did not account for multiple above-grade areas in some ANA 

hospital campus buildings or basements in most of the buildings (see findings 46, 48). 

Their testimony does not substantiate how appellant priced its bids. Zafer has failed to 

show us any credible evidence of the constitution of its price proposal other than a 

listing of the lump-sum prices proposed for each building (findings 44-45). In 

particular, Zafer has pointed us to nothing that would demonstrate that the assumptions 

and calculations underlying its proposal were, in fact, mistaken. See Hamilton, 711 F.2d 

at 1047 (appellant provided no evidence or testimony that a mistake was made in the 

preparation of the proposal). Counsel’s unsupported argument is not proof. Highland 

Al Hujaz Co., ASBCA No. 58243, 16-1 BCA ¶ 36,336 at 177,169. We therefore cannot 

say that appellant’s proposal was based on or embodied a mistake rather than appellant’s 

business decision to assume the risks of a lower-priced proposal. See Atlantic Dry Dock 

Corp., ASBCA No. 54936, 13 BCA ¶ 35,344 at 173,472 (citing Macro-Z Technology, 

ASBCA No. 56711, 12-1 BCA ¶ 35,000 at 172,005-06) (“It is the nature of a fixed-price 

contract to place the risk on a bidder that exercises its business judgment to establish its 

price and during performance finds its price to be low.”) By failing to provide either 

documentary evidence or credible testimony by someone knowledgeable of the 

assumptions made in preparing the proposal, appellant has failed to meet its burden of 

proving by clear and convincing evidence that its proposal was based on or embodies a 

mistake. 

2. The second element: The mistake was a clear-cut, clerical or mathematical 

error or a misreading of the specifications and not a judgmental error

Even if we had found that appellant’s proposal was based on or embodied a 

mistake, appellant has not shown by clear and convincing evidence that such a mistake 

was not a mistake in business judgment. A contract will not be reformed because of a 

unilateral mistake unless the contractor establishes that the error resulted from a “clear 

cut clerical or arithmetical error, or a misreading of the specifications.” Hamilton, 711 

F.2d at 1046) (quoting Ruggiero v. United States, 420 F.2d 709, 713 (Ct. Cl. 1970)). A 

“contractor need not be free from blame” to recover. However, a contractor is not 

entitled to reformation of its contract for a mistake in business judgment. Ruggiero, 

420 F.2d at 713-14; Liebherr Crane Corp. v. United States, 810 F.2d 1153, 1158 (Fed. 

Cir. 1987) (mistake of business judgment where errant proposal resulted from “gross

neglect and choice in failing properly to examine and follow the specification”); see also 

Hamilton, 711 F.2d at 1048.
45

Here, appellant does not allege that it committed a mathematical or clerical 

mistake, but rather that there was a “misreading of the specifications, whether by the 

government or Zafer, differently from each other” (app. br. at 83). A misreading of the 

specifications occurs when a contractor fails to correctly interpret various elements of 

the specifications. Liebherr Crane, 810 F.2d at 1157. However, Zafer fails to specify 

which (if any) of the specifications it allegedly misread. Zafer contends that 

“[s]omewhere there was a misreading of the specifications, or a mutual mistake on the 

specification, or a unilateral mistake or noncompatible [sic] interpretation between the 

parties” (app. br. at 90) (emphasis added). To the extent that it can be discerned from its 

unilateral mistake argument (id. at 77-103), appellant apparently contends that its

misreading of the specifications resulted from: the government’s failure to include 

photographs of the ANA hospital campus and to specify in the solicitation SOW which

buildings had basements; appellant’s assumptions based on another contract it was 

performing at the time20 (id. at 78); and appellant’s use of the site and floor plan 

sketches for its takeoffs (id. at 82). Mistakes stemming from such bases do not find a 

remedy in the law.

Where there are gaps, inconsistencies, or insufficient information in the 

solicitation documents, and the contractor’s failure to inquire with the government 

results in an erroneous proposal, the contractor assumes the risk of its failure to inquire. 

See, e.g., Giesler v. United States, 232 F.3d 864, 870-71 (Fed. Cir. 2000) (appellant’s 

bid without having verified the specifications cannot be construed as a “misreading”); 

DynCorp, 17-1 BCA ¶ 36,653 (appellant’s decision to submit a proposal without having 

first inquired into “gaps” in the solicitation data was a business judgment). The Baker 

sketches and the solicitation SOW raise several questions that should have spurred 

appellant’s duty to inquire (see, e.g., findings 8, 21-26). For example, the Baker sketch 

of Building Nos. 5A and 5B depicts stairwells for each of these buildings that indicate 

additional floors (finding 8). Each of these buildings is included in Zafer’s claim 

(finding 72). 

However, appellant did not ask the government any questions prior to submitting 

its proposal (finding 49). Nor does the record reflect that Zafer made any effort to 

obtain the Russian drawings or inspect the site until after contract award (findings 41, 

32). Where, as here, the contractor’s mistake resulted from “gross negligence in failing 

to read and consider the specifications thoroughly,” and the contractor made 

assumptions without any attempt of verification with the government, such a mistake 

has been held to have been one of business judgment, not a misreading of the 

specifications. See, e.g., Giesler, 232 F.3d at 870-71; Liebherr Crane, 810 F.2d at 1157. 

Furthermore, “[w]here a contractor’s failure to inspect the site gives rise to later 

fallacious estimate of the scope of work, it assumes the risk of its own omission.” 

 20 The other contract dealt with the ANA military academy, which was not shown to be 

relevant to the work in this contract.
46

Sealtite Corp., ASBCA No. 26209, 83-2 BCA ¶ 16,792 at 83,479. The government 

conducted at least one site visit (findings 28-30), which Zafer did not attend (finding 31)

and expressed no interest in attending (finding 32). Even if the government failed to 

provide Zafer with notice of the site visit, the Site Investigations clause placed on Zafer 

an affirmative obligation to inspect the site (finding 20). See, e.g., Oman-Fischbach 

Int’l (JV) v. Pirie, 276 F.3d 1380, 1384-85 (Fed. Cir. 2002) (“Paragraph (a) [of 

FAR 52.236-3, SITE INVESTIGATION AND CONDITIONS AFFECTING THE WORK 

(APR 1984)] makes clear that the burden of [inspecting the site] is the responsibility of 

the contractor”); Randa/Madison Joint Venture III v. Dahlberg, 239 F.3d 1264, 1267-68 

(Fed. Cir. 2001) (The Site Investigations clause “at least facially, place[s] on [the 

contractor] any risk associated with not inspecting the [work]”); Luhr Bros., Inc., 

ASBCA No. 52887, 01-2 BCA ¶ 31,443 at 155,292. Absent notice by the government 

of a scheduled site visit, Zafer had a duty to inquire as to when a site visit was scheduled

or make its own alternate arrangements to inspect the site. Zafer did not do so. (Finding 

32) Had appellant inspected the site, it would have seen the ANA hospital campus 

buildings, including several basements, and would have been able either to see the 

buildings with multiple above-grade floors or to ask the CO about them (finding 30). 

Assuming, arguendo, that appellant’s proposal was based on or embodied a mistake, 

that error resulted from Zafer’s failure to inspect the site or review all available 

information rather than a misreading of the specifications.

Zafer has failed to show by clear and convincing that it actually misread any of 

the specifications. Zafer’s decision not to request a site visit, much less participate in 

one, was a business judgement. Zafer’s decisions not to obtain the Russian drawings or 

ask any questions about the Baker sketches or the solicitation prior to submitting its 

proposal were also business judgments. We conclude that it was these mistakes in 

business judgment, rather than a demonstrated misreading of the specifications, to which 

the alleged error in Zafer’s price proposal must be attributed. Zafer is not entitled to 

contract reformation for such mistakes.

3. The fifth element: Proof of the intended bid is established

 

Relating to the government’s response to the bid, and as we have determined that

it is unnecessary that we discuss elements of proof 3 or 4, we turn to the fifth element 

which a contractor must prove to obtain relief for unilateral mistake. To satisfy element

5, “[t]he contractor must establish by clear and convincing evidence what [its proposal

price] would have been but for the error.” Hamilton, 711 F.2d at 1046 (citing Bromley 

Contracting Co. v. United States, 596 F.2d 448 (Ct. Cl. 1979)). As we discussed under 

the first element, Zafer has failed to show us any evidence of the basis of its price 

proposal other than a listing of the lump-sum prices proposed for each building 

(findings 44-45). Zafer’s proposal did not provide any proposal takeoff sheets, showing 

parameters considered, cost indices, historical pricing data, risk analyses, or other 

materials which might demonstrate how it determined the unit rates and area estimations 

that were used for its calculations concerning its anticipated costs to perform the project
47

(finding 44). The retrospective testimony of Mr. Tumer and the routine-proposal-review 

testimony of Mr. Yagci, neither of whom actually prepared Zafer’s proposal (findings

46-48), are insufficient to establish by clear and convincing evidence what the proposal 

price would have been but for the alleged mistake. Zafer, by failing to provide either 

documentary evidence of the composition of its proposal or testimony by someone 

involved in preparing the proposal, failed to prove by clear and convincing evidence 

what its proposal price would have been but for the alleged mistake. 

Because appellant has failed to show by clear and convincing evidence that: a 

mistake in fact occurred prior to contract award (element 1); the mistake was a clear-cut, 

clerical or mathematical error or a misreading of the specifications and not a judgmental 

error (element 2); and proof of the intended bid is established (element 5), appellant’s 

unilateral mistake arguments fail. As Zafer has failed to prove these three threshold 

elements, and it is unnecessary that we examine either elements 3 or 4, we conclude that 

Zafer cannot recover on the basis of an alleged unilateral mistake.

B. Unconscionability

Zafer repeatedly asserts that it is “unconscionable” to allow the government to 

overreach, and take advantage of a contractor making a unilateral mistake in its proposal 

that the government knew or should have known was erroneous. It contends that this 

appeal is “a mistake in bid / unconscionability case” (app. br. at 103). Although we 

agree that it is unacceptable for the government to act unconscionably, Zafer once more 

did not furnish evidence to support its assertion that the government acted 

unconscionably here. As we understand its briefs, appellant ties this argument to its 

assertion of a mistaken proposal in an attempt to shift the burden of proof to the 

government for Zafer’s own failures of business judgment. But it is Zafer, not the 

government, that bears the burden of proving that the government acted unconscionably. 

As we have stated:

We have described “‘[u]nconscionability’ [as] that which 

‘shocks the conscience’ and [which] is associated with such 

concepts as ‘overreaching,’ ‘taking undue advantage,’ ‘bad 

faith,’ ‘unfairness,’ and ‘unjust enrichment’” and have stated 

that it is “indistinguishable from the other party’s knowledge 

or reason to know of a mistake.” Uniflite, Inc., ASBCA 

No. 27818, 85-1 BCA ¶ 17,813 at 89,036. An 

unconscionable contract is “one which no man in his senses, 

not under a delusion, would make, on the one hand, and 

which no fair and honest man would accept on the other.” 

Glopak Corp. v. United States, 851 F.2d 334, 337 (Fed. Cir. 

1988), quoting Hume v. United States, 21 Ct. Cl. 328, 330 

(1886), aff’d, 132 U.S. 406 (1889); Rockwell International 

Corp., ASBCA No. 41095, 97-1 BCA ¶ 28,726 at 143,388. 
48

A determination of unconscionability depends on the facts of 

each case at the time of contract award and is found “only in 

exceptional circumstances.” Turner-MAK (JV), ASBCA 

No. 37711, 96-1 BCA ¶ 28,208 at 140,793.

Macro-Z Tech., 12-1 BCA ¶ 35,000 at 172,006.

Appellant’s argument for overreaching appears to be based upon the disparity 

between Zafer’s proposal and both the next-lowest submission and the IGE (app. br. at 

80, 90). Disparity in proposal prices alone, even in connection with an IGE, is 

insufficient to establish a cognizable claim of unconscionability. See, e.g., 

Turner-MAK, 96-1 BCA ¶ 28,208 at 140,793; W.B.&A., Inc., ASBCA No. 32524, 

89-2 BCA ¶ 21,736. Two circumstances, neither of which is sufficiently rebutted by 

appellant, militate against a finding that the government acted unconscionably. First, 

the government did request that Zafer confirm its proposal price (finding 53). Second, 

CO Gaylor gave a credible explanation for her belief that the price disparity was 

accounted for by the next lowest offeror’s higher overhead, which was attributed to its 

use of a subcontractor based in the United States (see findings 52, 55). 

As we noted in DynCorp International LLC, ASBCA No. 56078, “[t]he doctrine 

of unconscionability requires no separate analysis [from that of unilateral mistake] 

because unilateral mistake is a descend[a]nt from the doctrine of unconscionability.” 

DynCorp, 09-2 BCA ¶ 34,290 at 169,407 n.3 (citing 7 JOSEPH M. PERILLO, CORBIN ON 

CONTRACTS § 28.41 at 258 (rev. ed. 2002)). The common concern at the heart of both 

doctrines is “the overreaching of a contractor by a contracting officer when the latter has 

the knowledge, actual or imputed as something [they] ought to know, that the bid is 

based on or embodies a disastrous mistake and accepts the bid in face of that 

knowledge.” Ruggiero, 420 F.2d at 713-14 (emphasis added). 

Just as Zafer failed to satisfy its legal burden to establish a unilateral mistake in 

its proposal, it has not established that the government overreached by accepting the 

proposal. Again assuming, arguendo and without so deciding, that the government was

required to request Zafer to verify its proposal and the government’s request for 

proposal verification was inadequate, appellant has still not established entitlement, as it 

must, by satisfying the remaining elements of proof by clear and convincing evidence. 

Among other things, appellant has not shown that the proposal was, in fact, based on or 

embodies a mistake that occurred prior to contract award, and that such a mistake was a 

clear-cut clerical or mathematical error or a misreading of the specifications, and not an 

error in business judgment. See, e.g., Ellis Envtl. Grp., LC, ASBCA Nos. 54066, 54067, 

07-1 BCA ¶ 33,551 at 166,162-63 (citing McClure, 132 F.3d at 711). Without such a 

showing as to mistake, as low as appellant’s proposal price might be when compared to 

the IGE or that of the next-lowest offer, the risk of it remains with appellant to bear. 

E.g., Atlantic Dry Dock, 13 BCA ¶ 35,344.
49

C. Differing site conditions

It is not entirely clear whether Zafer intends to pursue relief under a differing site 

conditions theory. In fact, Zafer twice disclaims this theory, while, nevertheless, inviting 

us to make our own investigation in that regard: “Appellant does not believe this is a 

Change Conditions Type I or Type II, rather it’s a mistake in bid/unconscionability case. 

However, if the Board determines it is[,] appellant has met the requirements” (app. br. at 

103); and, “Appellant does not believe this is a case of a differing site conditions situation 

either Type 1 or Type 2.... However, if the Board views this as a differing site condition[,] 

then appellant meets the requirements of entitlement under that clause.” (Id. at 105-06) 

The contract includes the standard Differing Site Conditions clause (see 

findings 17, 19), “[t]he purpose of [which] is to allow contractors to submit more 

accurate bids by eliminating the need for contractors to inflate their bids to account for 

contingencies that may not occur.” H.B. Mac, Inc. v. United States, 153 F.3d 1338, 

1343 (Fed. Cir. 1998) (citing Foster Constr. C.A. & Williams Bros. Co. v. United States, 

435 F.2d 873, 887 (Ct. Cl. 1970)). “Differing site conditions can arise in two 

circumstances: (1) the conditions encountered differ from those indicated in the contract 

(Type I), or (2) the conditions encountered differ from those normally encountered 

(Type II).” Id. at 1343. 

To the extent that Zafer’s cryptic remarks require that we consider whether there 

were differing site conditions, we note that the elements of proof required to establish 

entitlement under a “Type I” legal theory are as follows:

The elements of a Type I differing site condition,

which FAR 52.236-2(a)(1) defines as “subsurface or latent 

physical conditions at the site which differ materially from 

those indicated in this contract,” are: (1) the condition 

indicated in the contract differs materially from those 

encountered during performance; (2) the conditions actually 

encountered were reasonably unforeseeable based on all 

information available to the contractor at the time of bidding; 

(3) the contractor reasonably relied upon its interpretation of 

the contract and contract-related documents; and (4) the 

contractor was damaged as a result of the material variation 

between expected and encountered conditions. Optimum 

Services, Inc., ASBCA No. 58755, 15-1 BCA ¶ 35,939 at 

175,653-54 (citing Stuyvesant Dredging Co. v. United States, 

834 F.2d 1576, 1581 (Fed. Cir. 1987); and Comtrol, Inc. v. 

United States, 294 F.3d 1357, 1362 (Fed. Cir. 2002)). A 
50

contractor must prove these elements by a preponderance of 

the evidence. Id. 

Tetra Tech Facilities Constr., LLC, ASBCA Nos. 58568, 58845, 16-1 BCA ¶ 36,562 at 

178,085. 

Once more, even assuming arguendo that Zafer had met elements 1 and 2 of a 

“Type I” legal theory, the contractor faces the same impediment in satisfying elements 3 

and 4 as in its assertion of a unilateral mistake. The common factor for each of these is 

that appellant must furnish evidence of the contract-related information relied upon at the 

time it prepared and submitted its proposal and how its demonstrable proposal price for 

each item of recovery was exceeded by increased costs of performance. Other than 

Mr. Yagci’s broad statement, without further explanation, that he was aware of the 

proposal preparers’ rationale, Zafer failed to furnish any substantive information regarding 

reasonable assumptions it made that are tied to the information made available by the 

government to prospective offerors (findings 44-48). As appellant failed to meet its 

burden of proof that it relied upon allegedly erroneous or deficient government-furnished 

information in making its proposal, it is unnecessary that we make a detailed comparison 

of the solicitation and conditions actually encountered on the ground. 

Having said that, however, we note that the Baker sketches clearly indicated the 

existence of stairwells in Building Nos. 5A and 5B (finding 8). We have also found that 

Zafer could have learned from the Russian drawings about the existence of basements 

and above-grade areas that might not otherwise be identified in the solicitation (findings

37-40), and that Zafer furnished no evidence that it even attempted to obtain them until

after contract award (findings 41, 60). “[W]here a claim is made for differing site 

conditions, the contractor will be charged with knowledge that it could have obtained by 

reviewing available bid documents.” Comtrol, 294 F.3d at 1364 (citing Randa/Madison, 

239 F.3d at 1270-71). “[The contractor] cannot bid in ignorance and then base a claim 

for equitable adjustment on a document that it did not review.” Id. at 1364. In any 

event, the government sufficiently demonstrated that work on particular subgrade and 

above-grade areas, for which Zafer seeks additional compensation because it allegedly 

left these out of its proposal, could readily have been determined from a site 

investigation and information contained on the Russian drawings (findings 30, 37-41). 

The Site Investigation clause places the burden on the contractor (finding 20). See Luhr 

Bros., 01-2 BCA ¶ 31,443 at 155,292 (“[The contractor] must show that prior 

knowledge of the alleged [differing site condition] could not reasonably have been 

anticipated by its study of the contract documents [and] its inspection of the site.”). 

Zafer admits that it did not investigate the site prior to submitting its proposal, offered 

no proof that it inquired of its own initiative regarding a site visit, and in fact dismissed

the need for a site visit as unnecessary (finding 32). Nor did appellant analyze all 

information made available by the government.
51

The elements required to establish entitlement under a “Type II” legal theory are 

as follows:

A Type II differing site condition requires the contractor to 

prove the recognized and usual conditions at the site, the 

actual physical conditions encountered and that they differed 

from the known and usual, and that the different conditions 

caused an increase in the cost of contract performance. 

Charles T. Parker Constr. Co. v. United States, 433 F.2d 

771, 778 (Ct. Cl. 1970); Costello Industries, Inc., ASBCA 

No. 49125, 00-2 BCA ¶ 31,098 at 153,585. It is a “relatively 

heavy burden of proof.” Parker Constr., 433 F.2d at 778.

Nova Group, Inc., ASBCA No. 55408, 10-2 BCA ¶ 34,533 at 170,329. “Most 

fundamentally, establishing entitlement to recovery for a Type II differing site condition 

require[s] that the contractor prove, inter alia, that the conditions encountered were of 

an ‘unusual’ nature.” MARCON Eng’g, Inc., ASBCA No. 57471, 15-1 BCA ¶ 35,974 at 

175,773-74 (citing Kos Kam Inc., ASBCA No. 34037, 88-3 BCA ¶ 21,100 at 106,524). 

“An ‘unusual’ condition is one that might not reasonably be anticipated given the nature 

and location of the work.” Kilgallon Constr. Co., ASBCA No. 51601, 01-2 BCA 

¶ 31,621 at 156,224 (citing Kinetic Builders, Inc., ASBCA No. 32627, 88-2 BCA 

¶ 20,657 at 104,400). 

Appellant has offered no argument, much less any evidence, that subgrade and 

above-grade areas of buildings on the ANA hospital campus constitute “unknown 

conditions” of an “unusual nature” given the work required by the contract and Zafer’s 

experience. We do not see how such an argument could feasibly be made considering

the facts of this case. The Baker sketches showed only some of the above-grade floors

(see Fig. 2 for Building Nos. 1, 2, and 3) and clearly indicated the existence of stairwells 

in Building Nos. 5A and 5B (see Fig. 3). The solicitation contained numerous, varying 

references to basements and above-grade areas; a site inspection would have revealed 

that many, if not most, of the buildings included subgrade and above-grade areas; and

the Russian drawings indicated subgrade and above-grade areas in many of the 

buildings. (See findings 7-8, 21-26, 30, 37-40) 

We conclude that appellant has not shown that any of the subgrade and 

above-grade areas of the ANA hospital campus constitute either “Type I” or “Type II” 

differing site conditions.

D. Appellant’s other arguments; the government’s affirmative defense

We have considered the other arguments advanced by appellant (e.g., defective 

specifications and “contra proferentem”) and find them to be without merit. Given 

appellant’s failure to argue its alternative theories in its post-hearing briefs, it is 
52

unnecessary for us to discuss our rejection of them in detail. See States Roofing Corp., 

ASBCA No. 54860 et al., 10-1 BCA ¶ 34,356 at 169,664 (failure to address pleading 

contention in post-hearing briefs equated to abandonment of the issue).

The government contends in its post-hearing briefs that the affirmative defense of 

accord and satisfaction applies in this case, and therefore appellant is not entitled to 

further reformation of the contract (gov’t br. at 36-37). The government argues that 

bilateral Modification No. P00010 (see findings 66-68) addressed the instant dispute, 

and that the government has performed its responsibilities under the modification and

the defense of accord and satisfaction therefore applies (gov’t br. at 36-37). Inasmuch 

as we have held that appellant has failed to satisfy its burden of proving entitlement 

under any of the theories advanced, it is unnecessary for us to address the government’s 

accord and satisfaction affirmative defense. E.g., Rainbow Elec. Co., ASBCA 

No. 9212, 65-2 BCA ¶ 5119 at 24,103. 

CONCLUSION

For the foregoing reasons, the appeal is denied.

Dated: 2 June 2017

REBA PAGE

Administrative Judge

Armed Services Board

of Contract Appeals

I concur I concur

J. REID PROUTY

Administrative Judge

Acting Vice Chairman

Armed Services Board

of Contract Appeals

RICHARD SHACKLEFORD

Administrative Judge

Acting Chairman

Armed Services Board

of Contract Appeals
53

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. 56769, Appeal of Zafer

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

Dated:

JEFFREY D. GARDIN

Recorder, Armed Services

Board of Contract Appeals