It kind of goes without saying, but you should probably bring your expert to a dispute if there is going to be a battle of the experts. One contractor recently learned this lesson to the tune of $65,000.
In Appeal of BES Construction, LLC, ASBCA 60608 (Oct. 23, 2019), the contracting officer awarded the contractor approximately $135,000 in delay damages for a 172 days in compensable delays on a renovation project on a base in South Carolina. The contractor appealed the decision, seeking approximately $609,000 in delay damages. On appeal, the government presented expert testimony establishing that the contractor was only entitled to 25 days of delay damages or approximately $69,000. Inexplicably, the contractor did not present any expert testimony and relied solely on the opinion of the owner of the company.
Rejecting the contractor’s claim on appeal, the Board reasoned:
[T]o prevail on its claims for additional costs allegedly incurred because of the late completion of a fixed-price government construction contract, the contractor must show that the government’s actions affected activities on the critical path, and where the delays of the government and the contractor are concurrent, the contractor must establish its delay apart from that attributable to the government. BES points to no such critical path analysis of its own, even though it concedes that “[t]he project encountered delays that are arguably attributable to both BES and the government”. And although BES relies heavily on the contracting officer’s decision to justify an award, our review is de novo, and the contracting officer’s award is not a floor, because once an action is brought following a contracting officer’s decision, the parties start before the Board with a clean slate. Nevertheless, we view the opinion of the government’s expert as a concession by the government that BES is owed $69,483.88 in delay costs.
Ultimately, the Board viewed this case as involving “particular and perhaps unusual circumstances” and credited the expert testimony of the government’s witness–the only scheduling expert witness in the case..
So what? This case presents two good lessons for contractors. First, if you find that the contracting officer’s decision appears to be well reasoned, you should carefully review every detail of your claim before pursuing an appeal. Remember, in these circumstances the appeal is de novo, which means it is a clean slate on the proof. Second, and more importantly, if you are going to pursue a claim involving delay damages, the burden will ultimately be in your hands to show how the delays affected the critical path, that the delays were not concurrent with contractor-related delays, and that you have an expert to support your claims. In other words, don’t show up to a battle of the experts without an expert.