Hensel Phelps Construction Co.

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeals of - ) ) Hensel Phelps Construction Co. ) ASBCA Nos. 63316, 63397, 63398 ) Under Contract No. W912QR-17-C-0043 ) APPEARANCES FOR THE APPELLANT: Todd R. Metz, Esq. Brian R. Dugdale, Esq. Varela, Lee, Metz & Guarion, LLP Tysons Corner, VA APPEARANCES FOR THE GOVERNMENT: Michael P. Goodman, Esq. Engineer Chief Trial Attorney James M. Inman, Esq. Zachary J. Grader, Esq. Engineer Trial Attorneys U.S. Army Engineer District, Louisville OPINION BY ADMINISTRATIVE JUDGE STINSON Appellant Hensel Phelps Construction Co. (Hensel Phelps) appeals three contracting officer final decisions (COFD) arising from Contract No. W912QR-17-C- 0043 (the contract) with the United States Army Corps of Engineers (USACE or government), Louisville District, for construction of a 200-member Army Reserve Center and Aviation Support Facility, and helicopter parking apron, at MacDill Air Force Base, in Tampa, Florida (“the Project”) (R4, tab 18 at 4669). The Board conducted a hearing from July 22 to August 1, 2024. Both entitlement and quantum are before us. Hensel Phelps filed its post hearing brief on October 10, 2024, the government filed its post hearing brief on January 10, 2025, and Hensel Phelps filed its reply brief on March 10, 2025. This decision addresses the following three consolidated appeals pending before the Board; ASBCA No. 63316, airfield paving redesign claim; ASBCA No. 63397, lift station claim; and ASBCA No. 63398, multiple items claim. ASBCA Nos. 63316 and 63397 are subcontractor pass-through claims on behalf of Ajax Paving Industries of FL, LLC (Ajax). FINDINGS OF FACT The parties submitted joint “Stipulations of Fact” (JSF). In addition, the government’s brief included an additional 197 numbered Proposed Findings of Fact (PFOF), to which appellant responded. Appellant did not submit additional proposed findings of fact. The Board may accept as true proposed findings of fact to which the opposing party did not submit a response. IVA’AL Solutions, LLC, ASBCA No. 63430, 25-1 BCA ¶ 38,770 at 188,432, 188,434 n.2 (finding proposed finding of fact established by preponderant evidence where government did not submit a response); see Pontchartrain Partners, LLC, ASBCA No. 63615, 25-1 BCA ¶ 38,831 at 188,930 n.1 (citing Korte-Fusco JV, ASBCA No. 59767, 15-1 BCA ¶ 36,158 at 176,454 n.1.) (failure to respond to proposed findings in context of summary judgment and Board Rule 7(c)(2)). Our findings of fact, set forth below, rely upon the parties’ JSF, uncontroverted and unopposed findings of fact set forth in the government’s PFOF (hereinafter GUPFF), hearing testimony, and documents in the consolidated Rule 4 file. I. USACE Districts Involved in the Project 1. The USACE Louisville District was the contracting office for the Project and serves as the center of standardization for Army Reserve construction projects throughout the United States and abroad (GUPFF ¶ 2; tr. 5/28-29). The Louisville District designed the Project and prepared the contract specifications and drawings (GUPFF ¶ 2; tr. 7/179-82). 2. Although the Louisville District oversaw the Project, the USACE Mobile District, as the geographic district where the Project was located (McDill AFB in Tampa, Florida), had employees on site, including an administrative contracting officer (ACO), a contracting officer representative (COR), and a quality assurance representative (QAR) (tr. 7/19-20). 3. Employees of the USACE’s Center of Expertise, located in the Omaha District, mainly employees of the Transportation System Center (TSC), provided guidance on the Project, both during the design phase, and during contract performance (tr. 6/173-74, 180, 184). II. DOD Standard Practice Guidelines - MIL-STD-3007 4. MIL-STD-3007, Standard Practice Unified Facilities Criteria, Facilities Criteria and Unified Facilities Guide Specifications, “establishes policy for developing and maintaining Unified Facilities Criteria (UFC), Facilities Criteria (FC), and Unified Facilities Guide Specifications (UFGS) as common facility standards and engineering practices for the Department of Defense (DoD) and other supported agencies.” DEP’T OF DEF., UNIFIED FACILITIES CRITERIA, FACILITIES CRITERIA AND UNIFIED FACILITIES GUIDE SPECIFICATIONS 1 (2019), https://www.wbdg.org/FFC/FEDMIL/milstd3007g.pdf. The previous version of MIL- STD-3007F was published on December 13, 2006, and the current version MIL-STD- 3007G was published on November 1, 2019 (id. at i). 2  5. The UFC Program was initiated by DoD “to unify all technical criteria (UFCs) and guide specifications (UFGS) pertaining to planning, design, construction, and operation and maintenance of real property facilities.” The purpose of the program is to streamline “the military criteria system by eliminating duplication of information, increasing reliance on private-sector standards, and creating a more efficient criteria development and publishing process.” Unified Facilities Criteria Program, WHOLE BLDG DESIGN GUIDE, https://www.wbdg.org/dod (last visited Apr. 15, 2026). 6. The contract specifications are based in part on requirements set forth in UFC, Pavement Design for Airfields, UFC 3-260-02 (30 June 2001) (R4, tab 643; tr. 6/181, 187). As set forth in the Forward to UFC 3-260-02, the UFC system is prescribed by MIL-STD 3007, and provides planning, design, and construction criteria for all DOD projects (R4, tab 643 at 3 1). 7. The UFGS is a joint effort of the USACE, the Naval Facilities Engineering Systems Command, and the Air Force Civil Engineer Center. UFGS is utilized in construction for military services. Unified Facilities Guide Specifications (UFGS), WHOLE BLDG DESIGN GUIDE, https://www.wbdg.org/dod/ufgs (last visited May 22, 2025). III. Federal Acquisition Regulation (FAR) Clauses Incorporated by Reference 8. The contract incorporated by reference FAR 52.236-2, DIFFERING SITE CONDITIONS (APR 1984) (R4, tab 13 at 1391). 9. The contract incorporated by reference FAR 52.236-21, SPECIFICATIONS AND DRAWINGS FOR CONSTRUCTION – ALT I (APR 1984) (R4, tab 13 at 1392), which provides, in part, “[a]nything mentioned in the specifications and not shown on the drawings, or shown on the drawings and not mentioned in the specifications, shall be of like effect as if shown or mentioned in both” (FAR 52.236- 21(a)). 10. The contract incorporated by reference FAR 52.246-12, INSPECTION OF CONSTRUCTION (AUG 1996), which provides, in part, “[t]he Contractor shall maintain an adequate inspection system and perform such inspections as will ensure that the work performed under the contract conforms to contract requirements. The Contractor shall maintain complete inspection records and make them available to the [g]overnment.” (R4, tab 13 at 1392; FAR 52.246-12(b)) 1 Citations to tab 643 are to the page numbers as designated by PDF reader. 3  11. The contract incorporated by reference FAR 52.248-3 ALT I, VALUE ENGINEERING-CONSTRUCTION (OCT 2015) – ALTERNATE I (APR 1984), which provides, in part, “[t]he [g]overnment will process VECP’s [value engineering change proposals] expeditiously; however, it will not be liable for any delay in acting upon a VECP,” and “[t]he decision to accept or reject all or part of any VECP is a unilateral decision made solely at the discretion of the CO” (R4, tab 13 at 1392; FAR 52.248-3(e)(1), (3)). 12. The contract incorporated FAR 52.211-12 LIQUIDATED DAMAGES- CONSTRUCTION (SEP 2000) which states, in part “[i]f the Contractor fails to complete the work within the time specified in the contract, the Contractor shall pay liquidated damages to the [g]overnment in the amount of $3,940 for each calendar day of delay until the work is completed or accepted” (R4, tab 13 at 1393; FAR 52.211-12(a)). The contract also incorporated Defense Federal Acquisition Regulation Supplement (DFARS) 252.236-7001, CONTRACT DRAWINGS AND SPECIFICATIONS (AUG 2000), which provides, in part, “[o]missions from the drawings or specifications or the misdescription of details of work that are manifestly necessary to carry out the intent of the drawings and specifications, or that are customarily performed, shall not relieve the Contractor from performing such omitted or misdescribed details of the work” (R4, tab 13 at 1403-04; DFARS 252.236-7001(d)). The contract incorporated by reference DFARS 252.201- 7000, COR (DEC 1991) (R4, tab 13 at 1392). IV. General Contract Specifications 13. Specification Section 01 32 01.00 06, PROJECT SCHEDULE, PART 3, EXECUTION, sets forth requirements for submission and approval of a Project Schedule (R4, tab 13 at 1779-81). Paragraph 3.7, REQUESTS FOR TIME EXTENSIONS, sets forth submittal requirements for a contractor who believes it is entitled to an extension of time (R4, tab 13 at 1792). Regarding a government-issued Request for Proposal (RFP), the contract required the contractor to “submit a schedule impact analysis demonstrating whether or not the change contemplated by the [g]overnment impacts the critical path” (id.) (emphasis added). On this contract, the parties utilized the term “time impact analysis” (TIA), which by its nature was a prospective, forward looking delay analysis of a specific delay event tied to the RFP (Finding 159; tr. 1/237, 270, 4/275-276, 5/153-55). 14. Specification Section 01 33 00.00 06, SUBMITTAL PROCEDURES, PART 1 GENERAL, states “[t]his is a Design/Bid/Build, Army Reserve Project” (R4, tab 13 at 1795). The project area boundary totaled 55.7 acres (R4, tab 18 at 4680, 4735). 15. Specification Section 01 45 04.10 06, CONTRACTOR QUALITY CONTROL, PART 3 EXECUTION, paragraph 3.1, GENERAL REQUIREMENTS, 4 provides that the contractor is responsible for quality control (QC) and shall maintain an effective QC system that complies with the “Inspection of Construction” clause and is able to produce an end product that complies with contract requirements (R4, tab 13 at 1849- 50). V. Airfield Paving Redesign Claim (Helicopter Parking Apron) ASBCA No. 63316 16. The airfield paving redesign claim is a pass-through subcontractor claim on behalf of Ajax, alleging cost and time impacts resulting from paving a helicopter parking apron and helicopter pad the size of approximately 13 football fields (hereinafter “the apron”) (JSF ¶ 7; R4, tab 13 at 2026; tr. 2/200-01, 3/329). An important design aspect of the apron was that it supports loads caused by various aircraft utilizing the apron (R4, tab 16 at 3774, 3899, 4103; tr. 6/188-89, 7/220-21). Contract Drawing Sheet CP501 17. Contract drawing, sheet CP501, PAVEMENT DETAILS AVIATION SUPPORT FACILITY, includes Detail B8 - set forth below - depicting a cross section of the APRON/TAXIWAY CONCRETE PAVEMENT SECTION (R4, tab 18 at 4862). (Id.) Detail B8 references both Specification Sections 32 11 10 (DRAINAGE LAYER) and 32 11 16 (SUBBASE FOR PAVING (AGGREGATE SEPARATION LAYER)) (id.; see R4, tab 17 at 4187, 4199). 18. As reflected on sheet CP501, construction of the Apron/Taxiway Concrete Pavement Section required preparation and installation of four distinct layers: 5 twelve-inch compacted subgrade; four-inch aggregate separation layer; four-inch aggregate drainage layer, and eight-to-ten-inch concrete pavement (R4, tab 18 at 4862; see also R4, tab 16 at 3774). Specification Section 32 11 10 19. Specification Section 32 11 10, DRAINAGE LAYER, sets forth requirements for constructing the drainage layer (R4, tab 17 at 4187-98). Paragraph 1.4, QUALITY ASSURANCE, subparagraph 1.4.5.2, Stabilized Layer, states: Perform sieve analyses on aggregates prior to addition of asphalt or [P]ortland cement, at a rate of at least one test for every 6000 square yards of completed area and not less than one test for each days [sic] production. Make extraction tests on bituminous stabilized material at the same frequency. Perform soundness tests, Los Angeles abrasion tests, fractured faces tests, and flat and/or elongated particles tests at the rate of one test for every 12,000 square yards of production. (R4, tab 17 at 4188, 4190) 2 Section 32 11 10 contains numerous other references to stabilized material, aggregate, and layers (id. at 4191-97). 20. Specification Section 32 11 10, PART 3, EXECUTION, paragraph 3.2, TEST SECTION, subparagraph 3.2.3, Location and Size, states: Place the test section inside the production paving limits or outside production paving limits in an area with similar subgrade and subbase conditions approved by the CO. The underlying courses and subgrade preparation, required for the pavement section, shall be completed, inspected and approved in the test section prior to constructing the drainage layer. The test section shall be a minimum of 400 feet long and two full paving lanes wide side by side. (R4, tab 17 at 4193) 2 A sieve analysis is a gradation test utilizing a series of stackable screened or meshed strainers to determine the amount (percentage) of soil that passes through the screen or mesh (tr. 2/146-47, 3/78-82). A 200-sieve screen has 200 openings or holes per inch, while a ten-sieve screen has ten openings per inch (tr. 3/80). 6  21. The Project required installation of both rigid pavement, which has concrete as its top layer, and flexible pavement, which has either asphalt or aggregate as its top layer (tr. 7/182). The apron’s top layer was an eight-inch, rigid concrete surface (tr. 7/185) (GUPFF ¶¶ 17-18). 22. The requirement set forth in sheet CP501 of constructing a 12-inch compacted subgrade was not unique to the Apron/Taxiway Concrete Pavement Section. Sheet CP501 also required installation of a 12 inch compacted subgrade for other project areas: (1) the Asphalt Pavement (Detail A5); (2) the Gravel Pavement (Detail C5 – compact top 12 inch subgrade to 95% density); (3) the Plain Concrete Pavement (Detail C8); (4) the Asphalt Apron/Helipad Shoulder (Detail E8); (5) the Concrete Dumpster Pad (Detail F1), and (6) the Concrete Mechanical Pad (Detail F5), as well as a six inch compacted subgrade for the Gravel Area (Detail E5 – compact top six inch subgrade to 95% density) (R4, tab 18 at 4862). Specification Section 32 11 16 23. Specification Section 32 11 16, SUBASE FOR PAVING (AGGREGATE SEPARATION LAYER), sets forth requirements for constructing the subbase (R4, tab 17 at 4199). Part 2, PRODUCTS, paragraph 2.1, MATERIALS, paragraph 2.1.1, Subbase Course, required Hensel Phelps to select material for the subbase with pre-placement tests for material meeting the following criteria: Material retained on the No. 4 sieve shall have a percentage of wear not to exceed 50% after 500 revolutions when tested as specified in ASTM C131/C131M. Aggregate shall be reasonably uniform in density and quality. Slag shall be an air-cooled, blast- furnace product having a dry weight of not less than 65 pcf. (R4, tab 17 at 4203) 3 Paragraph 2.1.1 also specifies that aggregates shall have a maximum size of one inch and be within certain percentage limits by weight passing through square-mesh sieves (id.). 24. Specification Section 32 11 16, paragraph 1.5, QUALITY ASSURANCE, provides that “[s]ampling and testing are the responsibility of the Contractor, to be 3 “ASTM (American Society for Testing and Materials), now known as ASTM International, is a ‘standards organization that develops and publishes voluntary consensus technical standards for a wide range of materials, products, systems, and services.’” BCI Construction USA, Inc., 24-1 BCA ¶ 38,522 at 187,244 n.2 (citations omitted). 7 performed by an approved testing laboratory in accordance with Section 01 45 04.10 06 CONTRACTOR QUALITY CONTROL” (R4, tab 17 at 4200-01). 25. Specification Section 32 11 16, paragraph 3.3, PREPARATION OF UNDERLYING MATERIAL, required Hensel Phelps to prepare the underlying course (i.e., the subgrade)—including a requirement to stabilize the subgrade—as follows: Prior to constructing the subbase course, clean the underlying course or subgrade of all foreign substances. The surface of the underlying course or subgrade shall meet specified compaction and surface tolerances. Correct ruts, or soft yielding spots, in the underlying courses, subgrade areas having inadequate compaction, and deviations of the surface from the specified requirements, by loosening and removing soft or unsatisfactory material and by adding approved material, reshaping to line and grade, and recompacting to specified density requirements. For cohesionless underlying courses or subgrades containing sands or gravels, as defined in ASTM D2487, the surface shall be stabilized prior to placement of the overlying course. Accomplish stabilization by mixing the overlying course material into the underlying course, and compacting by approved methods. The stabilized material shall be considered as part of the underlying course and shall meet all requirements for the underlying course. The finished underlying course shall not be disturbed by traffic or other operations and shall be maintained in a satisfactory condition until the overlying course is placed. (R4, tab 17 at 4203-04) (emphasis added) 4 26. The stabilization requirement in paragraph 3.3 requires that the contractor meet standards set by the specification’s compaction and in-place gradation tests (R4, tab 17 at 4202-04; tr. 6/197-200). 27. Specification Section 32 11 16, paragraph 3.7, COMPACTION, requires compaction of the subbase to “continue until each layer is compacted through the full depth to at least 100% of laboratory maximum density,” and “adjustments in 4 “Cohesionless soil” is soil that “won’t hold together,” and “has a tendency to fall into holes more and not hold the shape” (tr. 2/229). 8 compacting or finishing procedures as may be directed to obtain true grades, to minimize segregation and degradation, to reduce or increase water content, and to ensure a satisfactory subbase course” (R4, tab 17 at 4204). Section 32 11 16, paragraph 1.5.2.4, Field Density Tests, and paragraph 1.5.3.2, In-Place Tests, require placed material meet certain in-place density testing and sieve analysis, tested at various intervals of placement (R4, tab 17 at 4201-02). 28. The subbase specification containing the subgrade stabilization requirement was derived from the pertinent UFGS, with changes made to the specifications by the USACE utilizing a computer program known as SpecsIntact (tr. 6/193-94, 228). 5 To meet design requirements, Hensel Phelps had to meet in-place and compaction testing requirements (tr. 6/195-97). The gradation selected from the guide specification (UFGS) determined the expected strength of the layer (tr. 6/193, 195, 229-30, 7/314- 16). Geotechnical Evaluation Report (GER) 29. Specification Section 31 00 00.00 06, EARTHWORK 06/15, PART 1, GENERAL, paragraph 1.1 REFERENCES, lists publications that “form a part of this specification to the extent referenced” (R4, tab 16 at 3718). One such publication is ASTM D 2487 (2011), Soils for Engineering Purposes (Unified Soil Classification System) (R4, tab 16 at 3718-19). ASTM D 2487 includes in Table 1, Soil Classification Chart, a system for classifying soils such as well-graded gravel (GW), poorly graded gravel (GP), silty gravel (GM), clayey gravel (GC), well-graded sand (SW), poorly graded sand (SP), silty sand (SM) and clayey sand (SC). ASTM INT’L, ASTM D2487 – 11, STANDARD PRACTICE FOR CLASSIFICATION OF SOILS FOR ENGINEERING PURPOSES (UNIFIED SOIL CLASSIFICATION SYSTEM 3 (2011). 6 30. Paragraph 1.4 GEOTECHNICAL REPORT references the “Geotechnical Evaluation Report - MacDill ARC and ASF,” dated January 2017 and prepared by Dr. Chun-Yi Kuo and Mr. Justin Roosa of the Louisville District (R4, tab 16 at 3719). 5 “SpecsIntact is an automated system for preparing standardized facility construction specifications used worldwide by” the USACE, providing “automated functions and built-in quality assurance reports that allow users to adapt standardized facility construction specifications to fit their projects and assure quality control for project specifications from beginning to end.” SpecsIntact, WHOLE BLDG DESIGN GUIDE, https://www.wbdg.org/dod/specsintact (last visited May 15, 2026). 6 Accessed via Scribd, available at https://www.scribd.com/document/488180059/ASTM-D2487-11- Classification-of-Soils-for-Engineering-Purposes-Unified-Soil-Classification- System-pdf (last visited May 15, 2026). 9 The GER is reproduced at the end of Specification 31 00 00.00 06 (R4, tab 16 at 3719, 3741-4123). 31. Paragraph 1.2 USE OF INFORMATION PROVIDED states: Information included in the Geotechnical Report [(GER)], as attached to this specification, is provided “for information only” and is not part of the Contract Documents. Subsurface soil boring logs are shown on the drawings. This data represents the best subsurface information available; however, variations may exist in the subsurface between boring locations. Bidders are urged to examine the information provided, make their own investigation of the site before bidding, and obtain additional geotechnical information should they desire. No consideration will be given for additional compensation for extra work for conditions which could reasonably have been anticipated from this geotechnical information. (R4, tab 16 at 3719) Across each GER page is the notation “For Information Only” (R4, tab 16 at 3741-4123). 32. Paragraph 1.3 INTERPRETATION states that geotechnical data is provided for the convenience of bidders, for information only, and that the government disclaims responsibility “for the accuracy, true location and extent of geotechnical investigation” prepared by others, and for data interpretation by bidders (R4, tab 16 at 3719). 33. Paragraph 1.6.3 Cohesionless and Cohesive Materials, states: Cohesionless materials include materials classified in ASTM D 2487 as GW, GP, SW, and SP. Cohesive materials include materials classified as GC, SC, ML, CL, MH, and CH. Materials classified as GM and SM will be identified as cohesionless only when the fines are nonplastic. Testing required for classifying materials shall be in accordance with ASTM D 4318, ASTM C 136, ASTM D 422, and ASTM D 1140. (R4, tab 16 at 3720) 10  34. Paragraph 1.6.4 provides the degree of compaction “is expressed as a percentage of the maximum density obtained by the test procedure presented in ASTM D 1557 abbreviated as a percent of laboratory maximum density” (R4, tab 16 at 3720). 35. GER Section 6 PAVEMENT RECOMMENDTIONS, paragraph 6.1, General, provides, in part, that “[i]n order for a pavement to perform satisfactorily, the subgrade soils must have sufficient strength and be stable enough to avoid deterioration from construction traffic and support the paving equipment” (R4, tab 16 at 3771). 36. The GER references UFC 3-260-02 (R4, tab 16 at 3771, 3773, 4103; tr. /139), stating, in paragraph 6.2, that “UFC 3-260-02 Pavement Design of Airfields (6- 30-2001) [among other listed UFCs] . . . establish[es] general provisions and geometric design criteria of pavements at military installations” (R4, tab 16 at 3771; tr. 6/181, 187). Paragraph 6.2 also states that PCASE (Pavement-Transportation Computer Assisted Structural Evaluation) software, developed by TSC, “was used for the design of the pavements on this project” utilizing applicable UFC criteria including “subgrade and base requirements, thickness designs, drainage layer computations, compaction requirements, criteria for stabilized layers, concrete pavement joint spacing, and determination of overlay thicknesses” (R4, tab 16 at 3772; tr. 7/221-22). 7 37. GER paragraph 6.3.2 Rigid Pavement includes Table 14 titled “Airfield Pavements: Rigid Pavement” and identifies the material, thickness, and specification of each pavement layer (R4, tab 16 at 3774). The plain concrete thickness is listed as eight inches and references UFGS 32 11 13, the drainage layer thickness is four inches and references UFGS 32 11 10, the aggregate separation layer thickness is four inches and references UFGS 32 11 16, and the compacted subgrade thickness is twelve inches and references UFGS 31 00 00.00 06 (R4, tab 16 at 3774). 38. GER Section 7 LIMITATIONS states, in part, “[r]egardless of the thoroughness of a geotechnical exploration, there is always a possibility that conditions between borings will be different from those at specific boring locations, and that conditions will not be as anticipated by the designers or contractors” (R4, tab 16 at 3776). 7 PCASE is a computer program utilized by the USACE for structural design of DOD airfield pavements (tr. 6/182) 11  UFC 3-260-02 and K-Value 8 39. UFC 3-260-02, CHAPTER 5, SITE INVESTIGATIONS, Section 8, SOIL STRENGTH, states “[s]oil strength is measured by the CBR for use in designing flexible pavements and by the modulus of soil reaction (k) for the design of rigid pavements” (R4, tab 643 at 50, 53). 9 UFC 3-260-02 includes Table 6-1, Typical Values of Modulus of Soil Reaction, and sets forth the “[t]ypical values of k for different soil types and moisture contents” (R4, tab 643 at 60). 40. Table 6-1 includes the following statement: Pavement design should be based on test data or at least historical data of past designs and evaluations at the same facility if at all possible. These default values are suggested for use for preliminary calculations or for small projects or projects where better data simply cannot be obtained. Inadequate testing or evaluation budgets are not an excuse to use these values for final design. (Id.) 41. Table 6-1 specified a k-value of 200 pci (pounds per cubic inch) for the type of soil at the Project (SP – poorly graded sand), however, the government utilized a k-value of 150 pci to add conservatism in the design (R4, tab 643 at 60; tr. 3/144, 7/225-26). A lower k-value number indicates existence of a lower strength soil, while a higher k-value suggests a higher strength material (tr. 7/226-27). As explained in the GER, “[b]ased on empirical correlation and experience with similar soil types, a modulus of subgrade reaction (ks) of 150 [pci] was assumed for rigid pavement design” (R4, tab 16 at 3774). Mr. Roosa (the co-author of the GER) stated that, in relying upon Table 6-1, he chose a more conservative k-value of 150, rather than 200, to indicate “that the subgrade soils are not as strong. They’re not as stiff.” (Tr. 7/226) 8 “The k-value is a commonly applied value in concrete pavement design” which estimates the measure of support provided by subgrade or subbase layers below a concrete pavement surface. Description, ACPA, http://www.apps.acpa.org/apps/kValue.aspx (last visited May 19, 2026). 9 “The rigid pavement design procedure is based on flexural strength, modulus of subgrade reaction of the subgrade soils, pavement thickness, and traffic composition” (R4, tab 16 at 3774). “The strength of the subgrade is expressed in terms of the modulus of soil reaction (k) for rigid pavement design” (R4, tab 643 at 59). K-value represents a subgrade modulus of soil reaction; modulus indicates the strength of material, expressed in degrees of strength (tr. 8/31-32). 12 Thus, rigid pavement, i.e., the concrete apron, was designed using a k-value of 150 pci (R4, tab 16 at 3774, tab 643 at 60; tr. 7/222-23, 226). 42. As specified in GER Section 2 (EXPLORATORY FINDINGS) and paragraph 2.1 (geophysical investigation) (R4, tab 16 at 3750), the government conducted a site investigation to determine soil characteristics (tr. 7/216). To measure soil strength, the subsurface investigation included drilling boreholes at the site and using a standard penetration test (SPT) which allows visualization of the soil from pulled material. The government also performed geophysical testing, an evaluation of the subsurface conditions. (Tr. 7/204) 43. In preparing the GER, Mr. Roosa testified that, in addition to the UFC, he reviewed empirical correlations, prior construction (tr. 7/203-05, 207-08), and historical k-values between 200-300 pci located near the Project site (tr. 7/223-24; R4, tab 643 at 60; GUPFF ¶ 38). Mr. Roosa also considered information from a 2008 MacDill AFB pavement evaluation report discussing k-value of subgrade soils on base (tr. 7/223-24) and soil strength for existing runways and taxiways at MacDill (tr. 7/281-82), “look[ing] at how the pavement sections for those previously improved areas were designed” and examining the actual designs and drawings for the pavement sections (tr. 7/282). According to Mr. Roosa, the k-value for soils reflected in that report “were in the ballpark between 2 and 3 hundred. . . . Some of them were up to 400.” (Tr. 7/224-25) Mr. Roosa noted that “these evaluations are conducted every so often to evaluate the condition of airfield pavements” (tr. 7/279). Mr. Roosa also reviewed Florida Department of Transportation (FDOT) guidance, 10 which 10 Hensel Phelps’s post hearing brief contains numerous, sometimes lengthy objections to the government’s proposed findings, without providing record citations supporting appellant’s specific objections. For example, Hensel Phelps objects to the government’s statement regarding Mr. Roosa’s testimony, that FDOT “guidance recommended a k-value of 200 pci for sandy materials” (PFOF ¶ 39). In response, Hensel Phelps states “[t]he [g]overnment’s PFOF is incomplete and misleading. FDOT also requires the k-value to be reduced by 50% when designing base course within 2 feet of the water table, which would have meant this Project’s assumed k-value should have been reduced, and that soil test data should have been collected from in situ materials prior to pavement design, to ensure a proper design was performed.” (App. Reply at 14) Yet Hensel Phelps does not cite any record evidence or testimony to support its assertion regarding the water table, FDOT requirements, or why the “assumed k-value should have been reduced” or that in situ soil data therefore should have been collected. Counsel’s assertions, without record support, do not constitute preponderant evidence. ECC Inter. LLC, ASBCA Nos. 61176, 62029, 21-1 BCA ¶ 37,824 at 183,692 (“Appellant provides no legal authority in support of its conclusion, and simply saying it does not make it so”). 13 recommended a k-value of 200 pci for sandy materials (tr. 7/223, 278-79). On questioning from appellant’s counsel whether Mr. Roosa “look[ed] at how the pavement sections for those previously improved areas were designed,” Mr. Roosa confirmed that he examined the actual designs and drawings for the pavement sections (tr. 7/282). 44. A CBR (California Bearing Ratio) test was utilized to measure soil strength for flexible pavement design such as asphalt and gravel (tr. 7/217-18). The pavement design for flexible pavements was based on a CBR of 8 derived from four tests on the site as indicated in the GER (R4, tab 16 at 3772 (¶ 6.3.1)). Hensel Phelps challenges CBR values set forth in the GER, stating that only one CBR sample was taken from the apron area, in an area previously cleared and developed, that a second was taken from a new skeet and grenade range a mile from the airfield, while the remaining two were collected from an area encompassing the proposed access road area and a gravel parking lot (app. reply at 12). Plate Load Testing 45. The k-value for soil may be determined by performing a field plate-bearing test which involves utilizing a cylinder to determine a ratio for bearing and deflection (tr. 7/222). The UFC states that plate load tests are performed on “the in-place conditions,” intended to provide confidence that the k-value is representative of those conditions, and that “other pertinent soil data must be made to aid in the selection of the design k value” (R4, tab 643 at 59). 46. Mr. Roosa stated that he did not utilize a plate-load field test to determine the k-value for the apron, concluding it was not applicable for the Project because, pursuant to the grading plan, structural fill was going to be used to bring up the apron subgrade. Conducting a plate-load test on existing grades was unreasonable because ultimately the subgrade was going to consist of structural fill, not the existing grade (tr. 7/223). VI. Wastewater Lift Station Claim – ASBCA No. 63397 47. The lift station claim, a subcontractor pass-through claim on behalf of Ajax, has two components, (1) costs incurred pursuing a possible VECP suggesting a redesign of the lift station, and (2) a differing site condition alleging the unknown existence of solid limestone bedrock at the lift station site (tr. 2/72-74). Lift Station VECP Claim 48. Specification 33 32 13.14 SEWAGE LIFT STATIONS, GRINDER PUMP TYPE, paragraph 1.2, required Hensel Phelps construct a “submersible sewage grinder 14 pump station,” i.e., a lift station for pumping wastewater, which included completing design elements of the lift station and wastewater system (R4, tab 17 at 4506, 4508, 4511, tab 18 at 4884 (sheet CU105 - Keynote 9 and sheet Note 5), 4916-26; GUPFF ¶ 135; tr. 6/29). Specification paragraph 2.6.2 required a 10-foot diameter concrete wet well and valve vault for the lift station (R4, tab 17 at 4513). Contract drawing sheet CU506 set forth the Lift Station Layout Plan (R4, tab 18 at 4916). 49. The contract incorporated from the Florida Governmental Utility Authority (FGUA) supplemental lift station specifications for Water and Wastewater Utility Systems (R4, tab 13 at 1468-69; GUPFF ¶ 136). Contract Specification Section 00 80 00.00 06, paragraph 1.63, states that “[t]The FGUA Supplemental Specifications have been attached to this specification. The Contractor shall comply with these specifications for water and wastewater utility system work at McDill Air Force Base.” (R4, tab 13 at 1468-69) The Preface to the supplemental specifications required that “[a]ny proposed exceptions . . . be approved by the FGUA” (R4, tab 13 at 1471-73, tab 18 at 4910 (sheet CU401, Notes 10 & 11); GUPFF ¶ 136). An August 25, 2017, FGUA permit for the Project identified FGUA as the owner of the lift station once it is placed into service and included calculations for designed capacity and explanations for the design (R4, tab 24 at 5749-68; GUPFF ¶ 142). Lift Station Differing Site Condition Claim 50. Contract drawing, sheet B-101, depicts the lift station and the surrounding borings A-1, A-2, PB-4, and O-1, which, according to the ledger in the bottom right- hand corner of sheet B-101, are within 200 feet of the lift station. Borings A-1 and A- 2 are within 100 feet of each other. (R4, tab 18 at 4682; tr. 7/211-12; GUPFF ¶ 146) 51. Reproduced below is a portion of sheet B-101 depicting the lift station and borings A-1, A-2, PB-4, and O-1 (GUPFF ¶ 147; R4, tab 18 at 4682). Lift 15  52. Recognizing SPT “is one of the most widely used field test in geotechnical engineering,” the GER set forth the following procedures for conducting the test: At regular intervals, drilling tools are removed and soil samples obtained with a standard 1.4-inch-inside-diameter (I.D.), 2-inch-outside-diameter (O.D.), split-tube sampler. The sampler is first seated six inches to penetrate any loose cuttings and then driven an additional foot with blows of a 140-pound hammer freefalling thirty inches. The number of hammer blows required to drive the sampler the final one foot is designated the “penetration resistance” or N- value. The penetration resistance when properly evaluated is an index to the soil’s strength. (R4, tab 16 at 3752; GUPFF ¶ 148) 53. The contract boring logs showed “refusal” for borings PB-4 and A-1. 11 Refusal for A-1 was at 30 feet after passing through weathered limestone, while refusal for PB-4 was at 19.4 feet at the bottom of weathered limestone (R4, tab 18 at 4687 (sheet B106), 4692 (sheet B111)). Boring logs for O-1 and A-2, which are located closer to the lift station site than boring logs PB-4 and A-1, did not show refusal but did depict weathered limestone (R4, tab 18 at 4686 (sheet B105), 4687 (sheet B106)). VII. Hensel Phelps Pre-Bid Activities 54. By email dated August 15, 2017, an employee of Hensel Phelps contacted Ajax inquiring, “I understand that AJAX may be looking at the Site Development on the Army Reserve Center @ MacDill AFB which bids in the morning. Hensel Phelps is bidding this as a General Contractor and would welcome your proposal.” (R4, tab 438 at 27342) 55. Appellant states “[a]t the outset, Hensel Phelps established that it was familiar with the Project Specifications, unde