ny _________________________________________________________________ GRANTED IN PART: August 27, 1996 _________________________________________________________________ GSBCA 12915 HERMAN B. TAYLOR CONSTRUCTION COMPANY, Appellant, v. GENERAL SERVICES ADMINISTRATION, Respondent. Christina Stone of Ogden, Lieberman, Gaughan & Stone, Houston, TX, counsel for Appellant. Kevin M. Myles, Office of Regional Counsel, General Services Administration, Fort Worth, TX, counsel for Respondent. Before Board Judges BORWICK, NEILL, and HYATT. BORWICK, Board Judge. Appellant, Herman B. Taylor Construction Company (Taylor Construction), appeals from a decision of respondent General Services Administration's (GSA's) contracting officer denying in substantial part Taylor Construction's claim for the cost of a change order involving a renovation contract for the United States Post Office and Courthouse Building at Galveston, Texas. Part of the contract required Taylor Construction to provide a generator building, including preparation of the excavation and building the foundation for the building. While excavating the generator building site in the late fall of 1992, Taylor Construc tion found embedded in the ground a foundation, having potential archeological value, of a late nineteenth century customs house designed by a prominent American architect. In late December of 1992, GSA stopped work on the generator building until mid-April, then issued a change order intended to protect the foundation. The delays in access to the site, and the delays associated with processing the change order increased Taylor Construction's costs because the company then had to excavate the site after wet weather. The contracting officer denied Taylor Construction's claim of $118,545.93 for the change and associated delays. For the reasons below, we grant the appeal in part. We award Taylor Construction $62,046.57, and interest as allowed by the Contract Disputes Act of 1978, 41 U.S.C. 601-613 (1994). Findings of Fact Original contract provisions 1. In June of 1992, Taylor Construction received a contract from GSA for renovation of the United States Post Office and Courthouse Building at Galveston, Texas. Transcript at 43; Appeal File, Exhibit 79. The contract involved four elements: (1) replacement and upgrade of major building support systems, (2) identification and partial abatement of asbestos- containing materials in mechanical and electrical rooms, plumbing pipes and ceiling plenums, (3) upgrade and enhancement of the existing fire safety system, and (4) miscellaneous architectural improvements and alterations. Appeal File, Exhibit 1 at 01010-2 to -3 ( 1.2D.). Included in the fourth element was the require- ment for construction of a new generator building. Id. at 01040- 10. 2. The contract contained the standard form Suspension of Work clause, FAR 52.212-12 (Apr. 1984).1 Appeal File, Exhibit 1 at 40 (Clause 96, GSA Form 3506). The contract contained the standard form Changes clause, FAR 52.243-4 (Aug. 1987). Id. at 30 (Clause 80, GSA Form 3506). The contract contained the standard form GSA Supplement to the Equitable Adjustments clause, GSAR 552.243-71 (2) (Apr. 1984). That clause provided for commission at a negotiated rate, not to exceed ten percent, to a contractor for work performed by other than his own forces, and for a negotiated overhead rate and profit each not to exceed ten percent, to the contractor and/or subcontractor for work per- formed by their own respective forces. Id. at 31 (Clause 81, GSA Form 3506). Initial delay; conditions leading to stop-work order and stop- work order 3. Taylor Construction was to begin performance within thirty calendar days of receipt of the notice to proceed and complete the contract within 696 calendar days after receipt of the notice. Appeal File, Exhibit 1 at 1 (Standard Form 1442). The notice to proceed was issued on September 3, 1992. Id., ____________________ That clause provides in pertinent part: "If the performance of all or any part of the work is, for an unreasonable period of time suspended, delayed or interrupted (1) by an act of the Contracting Officer in the administration of this contract . . . an adjustment shall be made for any increase in the cost of performance of this contract (excluding profit) necessarily caused by the unreasonable suspension. . . ." Exhibit 2. Taylor Construction had originally scheduled con- struction of the generator building to begin on March 2, 1993. Respondent's Exhibit 56A. Taylor Construction sought, and was granted, from GSA an early start date--October 23--for the generator building. Appellant's Supplemental Appeal File, Exhibit 2. GSA failed to remove a dumpster, which stood on the generator building site. Taylor Construction itself moved the dumpster on November 16. Id. GSA has not explained its failure to remove the dumpster so that Taylor Construction could start excavation of the generator building site by October 23. 4. Taylor Construction started work on excavating the site for the generator building on November 23. Appellant's Exhibit 17. Taylor Construction managed to excavate about half the trench for the foundation. Transcript at 557-58. During excava- tion, the contractor came across an old underground foundation, thought to have archeological significance, which obstructed part of the foundation site for the generator building. Appellant's Supplemental Appeal File, Exhibits 12, 15. 5. On December 22, 1992, GSA issued to Taylor Construction a stop-work order for the generator building portion of the contract, to enable GSA to (1) evaluate the archeological value of the old foundation, and (2) decide how to preserve it. Appellant's Supplemental Appeal File, Exhibits 12, 15. After it imposed the suspension, GSA repeatedly assured Taylor Construc- tion that work would begin shortly. Transcript at 1083. GSA, however, did not lift the stop-work order until April 13, 1993, three months and three weeks after the stop-work order was first issued, and after the National Park Service had examined the site for GSA. Appeal File, Exhibit 26. Other activities during suspension period 6. During the suspension period, Taylor Construction planned for demolition of interior spaces of the courthouse, and started on the demolition and asbestos abatement of those spaces. Appellant's Supplemental Appeal File, Exhibits 8, 24. Later in the suspension period, Taylor Construction complained about alleged differing site conditions hindering electrical work, ceiling work, and placement of air-handling units. Id., Exhibit 39. Condition of the site during suspension period 7. During the suspension period, rain filled the partially completed excavation with sand and water. Appellant's Supplemen- tal Appeal File, Exhibit 15. The construction manager noted in an inspection report of January 7, 1993 that "rain [was] filling excavation with water and eroded fill (sand)." Id. In the opinion of the GSA construction manager, Taylor Construction's first excavation was "a complete loss." Transcript at 570. The change order 8. The National Park Service (NPS) investigated the excava- tion and concluded that the old foundation was a ruin of an office and customs building constructed in 1888-1892 and designed by the renowned architect Nicholas J. Clayton. Appeal File, Exhibit 23. NPS recommended that GSA cover the foundation with fabric and protect the foundation with an eight-inch thick layer of sterile sand, after which the project could proceed. Id.; Transcript at 561-62. GSA, therefore, issued change estimate fourteen, which called for the following additional work: 1. Provide geotechnical services from Southwestern Laboratories to review foundation bearing surfaces, inspect foundation installation and foundation installa tion methods (including construction de-watering meth- ods where required by geotechnical engineer.) 2. Provide additional excavation to remove eroded material filling open foundation hole because of rain water. 3. Provide additional excavation to remove materials for spread footing bearing surface as directed by geo- technical engineer. 4. Provide additional excavation to modify spread footing foundation as shown on Walter P. Moore & Asso- ciates Inc. sketches #1 through #6, 3-1-93. 5. Provide work to cover all exposed surfaces of obstacles (2) with filter fabric. Use filter fabric "Miraff #140N" or Amoco "filter fabric 34598" or "45- 99." Appeal File, Exhibit 25. 9. The new generator building shape is a rectangle, of thirty-three feet, four inches by twenty-two feet. Appeal File, Exhibit 1, Drawing A02. An "L" shaped structure of fourteen feet by twenty-two feet, joins the northwest corner of the rectangle. Id., Drawing S03. The shape is as follows: Id. Sketches SK-1 and SK-3 attached to the change order directed that the foundation bridge a five-foot section of old building foundation through the time-tested architectural device of the arch. Appellant's Supplemental Appeal File, Exhibit 36, Sketches SK-1 and SK-3. Per drawing, the foundation was to be supported by a foundation spread footing two feet wide, except at the place it bridged the old-building foundation, where it was to be three feet and six inches wide. Id., Sketch SK-1. The footing was to be one foot deep, with the foundation wall itself to be one foot and eight inches deep. Id., Drawing SK-5. The excavation itself was to be four feet deep. Id., Drawing SK-1. Before the change, the excavation was to be at a depth of three feet nine inches, Transcript at 1191; thus the change called for the excavation three inches deeper than specified by the base contract. Id. at 590. Parties' pricing of the change 10. On March 19, Taylor Construction priced the change at $55,307.43--$3,600 for change item one, $7,294.82 for change item two, $7,294.82 for change item three, $35,817.11 for change item four and $1,300.68 for change item five. Appellant's Supplemen- tal Appeal File, Exhibit 38. 11. On April 12, GSA issued change estimate fourteen, and unilaterally adjusted the contract price by $24,604.04, $2,040 for change item one, $8,413.04 for change item two, $1,954 for change item three, $11,514 for change item four and $683 for change item five. Appeal File, Exhibit 25. The GSA's pricing estimate, prepared by the contracting officer's technical repre- sentative, was based on his experience in how much extra work needed to be done beyond what he considered base bid work. Transcript at 581-82. For example, he estimated that excavation should take 120 hours and cost $10 per hour for "fine excava- tion." Id. He allowed two weeks' rent of a backhoe by obtaining a quotation from a rental company. Id. at 583. He allowed for no more than 403 pounds of additional steel. Appellant's Supple- mental Appeal File, Exhibits 15, 18; Transcript at 583-85. 12. On April 13, Taylor Construction challenged the unilat- eral pricing of the change. Taylor Construction maintained that GSA underestimated the amount of work to be performed and the dollar amount of the change. Taylor Construction argued that "no consideration ha[d] been given to the ongoing wet weather condi- tions which continue to flood into the footing" and that "little or no consideration [had] been given to working conditions [or] site conditions." Appellant's Supplemental Appeal File, Exhibit 44. In a flight of passionate rhetoric worthy of William Jen- nings Bryan, Taylor Construction wrote: The GSA representative who sits in a dry, air-condi- tioned office in Fort Worth doesn't feel the muscle pain, the perspiration, the wet feet, the fatigue as the man in the ditch, who attempts to please the in- spector. Nor does the GSA representative allow for the loss of production due to the above described condi- tions. Id. Taylor Construction also told GSA that it had hired a subcontractor to excavate the generator building site and re- quested more details as to the changed work. Id. 13. On April 21, unmoved by Taylor Construction's rhetoric, GSA directed Taylor Construction to proceed with the changed work. At this point, GSA did not heed Taylor Construction's request for particulars on the scope of the change. Appellant's Supplemental Appeal File, Exhibit 47. Taylor Construction received GSA's directive and repeated its request for additional information. Id., Exhibit 48. 14. GSA responded to this request on May 3. As to the first item, GSA told Taylor Construction that the purpose of the geotechnical services was to review foundation bearing surfaces and to determine the soil bearing capacity in pounds per square foot. Appellant's Supplemental Appeal File, Exhibit 51. As to the second and third items--the scope of the excavation--GSA advised that it: expected the excavation to be three feet deeper than before. The additional four cubic yards of excavation can be reused to backfill. The added four cubic yards of concrete [were] figured in to the unilateral price. Id. (emphasis added). This last advice was wrong, in that GSA meant the excavation to be three inches deeper rather than three feet deeper. The contracting officer's technical representative had calculated that an additional excavation of three inches over the base contract work would result in an additional four cubic yards of excavated soil. Appeal File, Exhibit 25; Transcript at 723. Taylor Construction's performance of the changed work Subcontractor work 15. Taylor Construction retained Southwestern Laboratories to find out the soil's bearing load. Appeal File, Exhibit 18. Taylor Construction used White's Construction & Service Company (White's Construction) as its excavation subcontractor for the generator building. Appellant's Supplemental Appeal File, Exhibit 64; Transcript at 1184. Having started work, White's Construction was suspicious of the direction to excavate an additional three feet. In the words of White's Construction's owner, Mr. Albert White: "I knew we were going to hit water. And I knew the banks were going to cave in." Transcript at 1186. He also testified: "I didn't believe it [the depth instruction]. I couldn't see why there was a purpose for going that deep. But no, I didn't ask anybody are you sure this is right, are you sure this is wrong." Id. at 1187. 16. White's Construction excavated about twenty-two linear feet of trench to the wrong depth when the contracting officer's technical representative visited the site and told White's Construction of GSA's error. Transcript at 1187-88; Appeal File, Exhibit 39. During White's Construction's excavation, the sides of the trench continually caved in. The wet condition of the soil caused that problem, however, as much as the extra excava- tion depth did. When White's Construction excavated an extra three inches as contemplated by the change, the trench caved in as well. Transcript at 1190-91. White's Construction thus had to de-water the site. Id. at 581. During the excavation, there was not enough room to store the fill on the site. The fill had become mixed with sand and clay. White's Construction, there- fore, hauled the dirt away. Id. at 1193-94. 17. White's Construction dug the excavation and poured a concrete slab at the bottom of the excavation. Taylor Construc- tion formed the footings and concrete of the foundation. White's Construction then returned and backfilled the foundation with select fill from the dirt it had hauled away. Transcript at 1193-94. The excavation portion of the job took eleven days (including two weekends)--from May 7 through May 18. Id. at 1219-20. 18. White's Construction submitted to Taylor Construction detailed invoices for White's Construction's excavation work, which we summarize as follows: Date Description Labor Material Totals in May, s 1993 7 Supervision $150 $32.50 and 10 Supervision $424.96 $595.95 and 11 Labor and $659.92 $1,738.9 Materials 0 12 Labor and $659.92 $1,288.9 Materials 0 13 Labor and $659.92 $1,408.9 Materials 0 14 Labor and $659.92 $1,408.9 Materials 0 17 Labor and $641.06 $1,408.9 Materials 0 18 Moving out $0.00 $972.20 Totals $3,855.7 $8,855.1 0 5 Labor burden $1,889.2 @49% direct 9 Total Labor $5,744.9 9 Total Labor & $14,600.1 Material 4 Overhead $1,460.01 @10% Subtotal $16,060.1 5 Profit@10% $1,606.02 Total $17,666.1 7 See Appellant's Supplemental Appeal File, Exhibit 64. White's Construction's invoice included rent on a "690 DLC Backhoe" and the cost of moving an "850 Case Dozer" to the site. Id. 19. White's Construction also invoiced Taylor Construction for the fill-in work after Taylor Construction poured the founda- tion. That work amounted to $11,833.83. The total for White's Construction's work on this contract was $29,500. Appellant's Supplemental Appeal File, Exhibit 64. Contractor work and expenses 20. Taylor Construction incurred charges of $7,710.79 from Shepler Equipment Company for concrete forms sitting idly between January 7 and May 18, when White's Construction vacated the site and Taylor Construction could start pouring the foundation. Appellant's Supplemental Appeal File, Exhibit 64. Taylor Con- struction paid Shepler the full amount charged. Id. Taylor Construction, during the suspension period, had an idle "586C" backhoe which it says it intended to use to backfill the excava- tion after it had poured the foundation. Transcript at 1084. A "610 Bobcat" also allegedly sat idly. Appellant's Supplemental Appeal File, Exhibit 64. 21. In its claim, Taylor Construction sought compensation for the idled equipment at "regular rental rates"--$2,258 per month for the backhoe and $1,733 per month for the bobcat--for the suspension period, October 1, 1992 to May 18, 1993, which Taylor Construction says is "nine months." Appellant's Supple- mental Appeal File, Exhibit 64; Transcript at 1086-87. The stated date difference is not nine months as claimed; it is about seven-and-one-half months. The claim also included delay from October 1 through November 16 for the dumpster blocking Taylor Construction's access to the site of the generator building. Id.; Appellant's Exhibit 17. GSA, however, allowed an early start date of October 23, not October 1, for the generator building construction. There is no evidence, moreover, that GSA caused Taylor Construction's equipment to be idle between Novem- ber 16 and December 22, 1992. We find that GSA idled Taylor Construction's equipment between October 23 and November 16, 1992, and between December 22, 1992 and April 13, 1993. Findings 3, 5. Contractor's direct labor 22. During excavation by White's Construction, Taylor Construction had an on-site supervisor and a truck hauling dirt off the site. Transcript at 1072-74. During White's Construc- tion's excavation, according to Mr. Al White, Taylor Construction placed a flagman and two other laborers to keep the streets clean. Id. at 1207. When White's Construction backfilled the foundation, Taylor Construction had several laborers compacting soil. Id. at 1208. 23. For direct labor, Taylor Construction claimed the cost of eleven workers. Appellant's Supplemental Appeal File, Exhibit 64. For the week ending May 1, 1993, Taylor Construction listed one worker, Mr. Lionel Reyna, as "pumping water" for thirty-seven and one-half hours, and another three workers as "setting batter boards" for a total of one hundred and nine hours. Id. For the week ending May 14, Taylor Construction showed one worker, Mr. Reyna, flagging traffic for twenty-eight hours, and another worker, Mr. Jose Gonzales, checking batter boards and assisting White's Construction for forty hours. Id. The labor cost for Mr. Reyna for the week ending May 28 was $699.45. Id. The labor cost for Mr. Gonzales was $518.57. Id. 24. For the week ending May 21, Taylor Construction noted that two workers worked a total of eighty hours on "forms" and "administration," with a project manager working forty hours, and a superintendent working another forty hours. Form work and grading footings allegedly took one hundred and nine and one-half hours. Appellant's Supplemental Appeal File, Exhibit 64. That additional effort, of course, was after White's Construction had left the site. Id. Contractor's claim 25. Taylor Construction sought the following costs for the change: 1 Southwestern $1,764.00 Laboratories 2 Center Point $2,453.74 Consultant Claim Preparation Services 3 Staffing Interior $450.00 Estimators 4 Pictures as $52.76 requested by contracting officer's technical representative 5 Extra rebar $572.54 6 Cost of White's $29,500.35 Construction 7 Project manager Al $2,250.00 LeMay 8 Extra lumber and $750.22 plywood 9 Styrofoam $128.60 10 Brick for rebar $45.00 support 11 Form rental $7,710.99 12 Concrete and grout $1,533.60 13 Idle equipment on- $35,919.00 site 14 Vehicle mileage Project manager--120 $90.00 miles per day, 3 trips, total of 360 miles @.25 per mile Superintendent--120 $450.00 miles per day, 15 trips, 1800 miles @.25 per mile Workmen--120 miles $660.00 per day, 22 trips, 2640 miles @.25 per mile Rebar delivery from $150.00 Houston (120 miles) 15 Miscellaneous $946.50 mileage and fuel 16 Labor charges for $8,065.21 eleven employees at differing times Labor burden for $3,951.95 laborers 17 Markups on White's Construction's Billings White's Construction $1,475.01 overhead @ 5% Subtotal $30,975.36 Profit @ 5% $1,548.76 Total $32,523.62 Bond & Insurance @ $975.70 3% Total 33,499.32 18 Taylor Construc- $68,238.86 tion's Labor & Material Expenses Overhead @ 10% $6,823.88 Subtotal 75,062.74 Profit @ 10 percent 7,506.27 Total $82,569.02 Bond & Insurance @ $2,477.07 3% Total Taylor $85,046.09 Construction costs Grand Total $118,542.40 Appellant's Supplemental Appeal File, Exhibit 64.2 ____________________ In this table the items are as numbered by appellant and as continued by respondent. We reproduce the numbers submitted by appellant, including the math and recording errors. For example, Taylor Construction erroneously recorded White's Construction's charge as $29,500.35, when the total charge was $29,500. Taylor Construction derived a total of $32,523.62 from adding $30,975.36 and $1,548.76. The proper total is $32,524.12. Taylor Construction also sought double-recovery for White's Construction's profit and overhead. White's Construction's invoice to Taylor Construction for $17,666.17 included overhead and profit of ten percent, Finding 18; in its claim, Taylor Construction sought additional overhead and profit. Contracting officer's pricing and decision on claim 26. The contracting officer made several determinations regarding the claim. She allowed item one with allowable markups of ten percent and three percent bond for a total of $1,999 (rounded). Appeal File, Exhibit 46. She denied items two and three because she felt the small value of the change did not warrant use of an outside estimator. Id. She allowed item four. For item five, she held to GSA's estimate of $266, noting that Taylor Construction did not submit invoices from Texas Wide Sales or show the actual amount of rebar used. Id. On item six, she allowed a total of $16,115.17 for the foundation excavation. She deducted $1,111 to account for the mistake in excavating an extra three feet rather than three inches. Id. She denied the remain- der of the after-excavation work billed by White's Construction because the amount "has no substantiated evidence or backup." Id. 27. On item seven, the contracting officer concluded that ninety percent of the supervisor's work was for the base con- tract, and denied the amount. She denied item eight, save for $141 already offered in GSA's pricing of change estimate fourteen and denied any adjustment for lumber. Appeal File, Exhibit 46. She added $14 for styrofoam for item nine, and noted that GSA had allowed the full amounts claimed by Taylor Construction for items ten and eleven. Id. For item twelve, she noted that GSA had given Taylor Construction $420, but she added another $860 for concrete, for a total of $1,280. The contracting officer denied the claim for the backhoe and bobcat, item thirteen. She stated that the backhoe was not "retained on the job at GSA's request." Id. She denied the claim for the bobcat because she believed Taylor Construction did not own it. Id. She denied Taylor Construction's claim for item fifteen because Taylor Construction had not demonstrated the purpose of the expense. Id. 28. The contracting officer denied Taylor Construction's claim for item sixteen because the costs were for "mostly base bid work." She stated that during the foundation work the contracting officer's technical representative never saw more than three laborers and usually saw two laborers working on the foundation. Appeal File, Exhibit 46. The contracting officer offered $12,800.61 (including bond, profit and commission) more than GSA's pricing for change estimate fourteen. Id.; Finding 11. Cost of contractor-owned idled equipment 29. The Board requested from the parties copies of the US Army Corps of Engineers' Construction Equipment Ownership Expense Schedule, or of commercial guides such as one published by the Associated General Contractors. Board Order (June 12, 1996). Taylor Construction has submitted pages from the Automated Equipment Dealers' (AED) Green Book, which lists rent for the bobcat and backhoe. The monthly rent for the backhoe is $1,810. The monthly rent for the bobcat is $2,024. There are twenty-four days (.8 months) between October 23 and November 16, 1992, the time Taylor Construction's equipment was idle because of the dumpster on the site. Finding 3. There are eighty-one days (2.7 months) between January 22, 1992 and April 13, 1993, the period GSA unreasonably suspended work to process the change order. Finding 5; see discussion supra p. 15. The total rent, based on the AED rates, of the backhoe and bobcat for the first period of unreasonable suspension would be $3,067.20. The total rent for the backhoe and bobcat for the second period of unreasonable suspension, based on those same rates, would be $10,351.80. Discussion This appeal concerns a dispute about the pricing of a change order. The general principles applicable to the pricing of change orders are well known. As we noted in Plaza Maya Limited Partnership, GSBCA 9086, 91-1 BCA 23,425, at 117,501: The starting point for determining the proper measure of an equitable adjustment for added work under a Government contract is the cost impact on the contrac- tor. In general, the actual costs incurred in perform- ing the additional work are recoverable so long as they are "reasonable." Bruce Construction Corp. v. United States, 163 Ct. Cl. 97, 324 F.2d 516 (1963). Appel- lant has the burden of showing, however, the amount of any upward adjustment to which it may be entitled. Nager Electric Co. v. United States, 194 Ct. Cl. 835, 442 F.2d 936 (1971). A cost is reasonable if, in its nature and amount, it does not exceed what a prudent person would incur in the conduct of a competitive business. 48 CFR 31.201-3(a) (1992) (FAR 31.201- 3(a)). What is reasonable depends on a variety of considerations and circumstances, including (1) whether it is a type of cost generally recognized as ordinary and necessary for the conduct of the contractor's business or the contract performance; (2) generally accepted sound business practices, arm's-length bar- gaining, and federal and state laws and regulations; (3) the contractor's responsibilities to the Government, other customers, the owners of the business, employees and the public at large; and (4) any significant deviations from the contractor's estab- lished practices. FAR 31.203-3(b). With the revision of FAR 31.201-3 on July 30, 1987, no presumption of reasonableness is attached to the incurrence of costs by a contractor, and the burden of proof to establish the reasonableness of the incurred cost is placed on the contractor. Buck Industries, Inc., ASBCA 45321, 94-3 BCA 27,061, at 134,- 848. Applying these principles, we consider the various cost items decided by the contracting officer in her final decision. We consider the largest items of the claim first. Item six For White's Construction's work, GSA allowed a total of $15,004.17. We conclude that Taylor Construction is entitled to more for that item than granted by GSA. Taylor Construction's decision to hire White's Construction to perform the excavation for the generator building foundation was reasonable. Conditions at the site had changed between October, when Taylor Construction had planned to start the excavation work, and April, when GSA lifted the stop work order. Between October and April, due to poor weather, the site had turned from dry and workable to mud. Only in April was Taylor Construction able to begin concentrated work at the site. Taylor Construction's decision to hire a professional excavator was reasonable. See Minority Enterprises Inc., ASBCA 45549, et al., 95-1 BCA 27,461, at 136,829 (approv- ing cost of equitable adjustment for professional surveyor due to Government's defective survey control data). White's Construc- tion submitted detailed invoices for the excavation portion of the work; while the invoice was not detailed as to the backfill portion of the work, the cost of that work is consistent with the excavation portion. See finding 19. There is no dispute that White's Construction backfilled the excavation after Taylor Construction poured the foundation. We would allow White's Construction's full charge to Taylor Construction of $29,500, save for White's Construction's excava- tion to an erroneous depth the first full day on the job. Findings 15, 16. White's Construction's owner was correctly suspicious of the Government's mistaken advice in this regard. Given the dimensions of the site, a direction to excavate three feet deeper would not produce an extra four cubic yards of soil as noted in the Government's letter. The Government made a patent error, which either Taylor Construction or White's Con- struction should have recognized and brought to the attention of the contracting officer before proceeding to excavate to the extra depth. Nevertheless, comparing the costs of the first day on the job, May 11--when the extra excavation occurred--with the costs for a subsequent day's work, May 14, for instance--when the excavation was at the proper depth--it appears that White's Construction incurred only $330 of extra material costs. Finding 18. We reduce the quantum for White's Construction's work by $399.30 (which includes White's Construction's overhead and profit on the unnecessary costs)for a direct cost of $29,100.70. Item thirteen Taylor Construction presented a claim for idled equipment (the backhoe and bobcat) for $35,919. This claim was based on commercial rental rates for the equipment and is premised on lack of site access from October through December of 1992 and the suspension of work resulting from GSA's processing of the genera- tor building foundation change order. When the cause of the delay is lack of access to a site, the matter has been considered both as a suspension of work under the Suspension of Work clause, Merritt-Chapman & Scott Corp. v. United States, 528 F.2d 1392, 1398 (Ct. Cl. 1976); Stroh Corp. v. General Services Administration, GSBCA 11029, 96-1 BCA 28,265 at 141,131, and as a constructive change under the Changes clause, Pirini-Horn, Morrison-Knudsen (JV), ENG BCA 4621, 87-1 BCA 19,545, at 98,771; Rivera General Contracting, GSBCA 5797, 81-2 BCA 15,288, at 75,698 (citing Lincoln Construction, IBCA 438-5-64, 65-2 BCA 5234). In Pirini-Horn, Morrison-Knudsen, the contract contained affirmative and unequivocal guarantees of specific electricity outage periods, a departure from which the board considered a change. 87-1 BCA at 98,771. In this con- tract, in contrast, there is no specific and unequivocal guaran- tee of site availability. However, to the extent that "the delay was caused by the unreasonable delay on the part of the contract- ing officer in considering, acting on and incorporating the changes into the contract, [Taylor Construction] is entitled to compensation pursuant to the 'Suspension of Work' clause." Fidelity Construction Co., ASBCA 24882, 81-1 BCA 15,022, at 74,339. Here, GSA initially delayed in moving the dumpster from the generator building site, causing Taylor Construction a delay of twenty-four days in starting excavation of the generator building site, and idling Taylor Construction's backhoe and bobcat for that many days. Findings 3, 29. The suspension period from December 22, 1992, through April 13, 1993, involved delay in processing the change order for the redesigned foundation. For this matter, we conclude that it should have taken no more than one month for GSA to obtain the NPS's advice and to issue a change order based on that advice. GSA unreasonably delayed Taylor Construction by two and three-quarters months. Conse- quently, Taylor Construction is entitled to an equitable adjust- ment for periods of unreasonable suspension under the contract's Suspension of Work clause rather than its Changes clause. A contractor is entitled to an equitable adjustment for additional costs incurred in keeping equipment on-site which must remain exclusively dedicated to the project to assure the ability to perform. Stroh Corp., 96-1 BCA at 141,132; Dillon Construc- tion Inc., ENG BCA PCC-101, 96-1 BCA 28,113, at 140,354; Tom Shaw, Inc., DOT CAB 2106, et al., 90-1 BCA 22,580, at 113,331. Taylor Construction bases quantum on commercial rental rates. Boards have not favored use of commercial rental rates to reimburse contractors for the cost of idled contractor-owned equipment. Tom Shaw, 90-1 BCA at 113,333-34. Boards have, nonetheless, based a jury verdict on rental rates specified by manuals such as those published by the AED, reduced by fifty percent to account for the standby condition of the equipment. Id. at 113,336.3 Before resorting to a jury verdict, the Board must determine (1) that clear proof of injury exists; (2) that there is no more reliable method for computing damages; and (3) that the evidence is sufficient for a court to make a fair and reasonable approxi- mation of the damages. Dawco Construction, Inc. v. United States, 930 F.2d 872, 880 (Fed. Cir. 1991); Universal Development Corp. v. General Services Administration, GSBCA 11252, 93-1 BCA 25,479, at 126,939. In considering this second test, we may consider factors such as the size of appellant's firm, cost of maintaining more accurate records, and the nature and complexity of the project. L.L. Hall Construction Co. v. United States, 379 F.2d 559 (Ct. Cl. 1966); H.K. Enterprises, Inc., GSBCA 10166, 91- 2 BCA 23,697, at 118,653 n.2. Taylor Construction meets these tests. Taylor Construction suffered damage for a period due to its heavy construction equipment being idled. It could not use its equipment elsewhere, because the suspension periods were uncertain. See Finding 5. Taylor Construction is a small business, with a record keeping system that is hardly state of the art. Taylor Construction has placed in the record AED's rental rate manual for the bobcat and the backhoe. Thus, there is sufficient evidence for us to make a fair and reasonable approximation of damages. The cost to Taylor Construction, based on the AED rental rates for the backhoe and bobcat is $3,067.20 for the fall suspension period and $10,351.80 for the winter/spring suspension period for a total of $13,419. Finding 29. A reduction of fifty percent to derive the standby costs results in a total of $6,- 709.50. Items seven and sixteen Taylor Construction seeks $8,065.21 plus labor burden of $3,951.95 for laborers. The labor claim consists of charges for eleven employees working at unspecified times. The evidence, however, is that Taylor Construction had three employees at the site during the period White's Construction was on-site excavat- ing. We allow the cost of two laborers, Mr. Reyna and Mr. ____________________ There are other methods used to establish a jury verdict for idle contractor-owned equipment. One board awarded quantum based on the rates used to price a contract modification for the same equipment that was idled. The board took a fifty percent reduction to account for the stand-by condition of the equipment. Dillon Construction, 96-1 BCA at 140,355. In the instant case, ___________________ to our knowledge, the Government never priced another modification based on use of this equipment. Gonzales, during that time for a total of $1,218.12 (plus labor burden). The evidence is that these laborers worked on changed work--de-watering the site and assisting White's Construction in its work. Taylor Construction's other charges for "administra- tion" are not direct costs of the change. Taylor Construction has not shown that the charges for labor after May 18--principal- ly soil compaction and grading of footings--were attributable to the performance of the changed work rather than to performance of the base contract work. We also grant as a jury verdict one-third of the cost Taylor Construction claims for the project manager's time (item seven). In light of the other contract activities occurring during the suspension period--demolition, the beginning of asbestos abate- ment, and questions concerning differing site conditions, finding 6, we conclude that one-third is a fair approximation of the time the project manager would have spent dealing with the generator building problem, as opposed to the other aspects of the work. Items two and three FAR 31.205-33, "Professional and consultant service costs," provides in pertinent part: (A) Costs of professional and consultant services are . . . allowable . . . when reasonable in relation to the services rendered and when not contingent upon recovery of costs from the Government . . . . The costs for such services are unallowable, however, if the services are rendered in connection with a judicial or adminis- trative proceeding involving fraud or similar misconduct and there is a finding of contractor liability or a monetary penalty in a proceeding not involving fraud. FAR 31.205-47(b). The costs are also unallowable if they were incurred in connection with the prosecution of claims or appeals against the Federal Government. FAR 31.205-33(d). If the contractor incurred the costs for materially furthering the negotiation process, such costs should normally be contract administration costs allowable under FAR 31.205-33 even when, as here, the negotiation fails and litigation eventually follows. Bill Strong Enterprises Inc. v. Shannon, 49 F.3d 1541, 1550 (Fed. Cir. 1995). In Allied Materials & Equipment Co., ASBCA 17318, 75-1 BCA 11,150, the Armed Services Board of Contract Appeals approved as an allowable direct cost, allocable to a contract for cylinder assemblies, the contractor's cost of attorney services for preparing an equitable adjustment request. Allied Materials held that costs of preparing proposals to the contracting officer were properly charged as direct costs because "to regard the expenses as indirect costs would . . . unfairly and inequitably burden other contracts." 75-1 BCA at 53,086. Similarly, another board held that an estimator's fee for preparing an estimate requested by the contracting officer was incidental to contract perfor- mance, and thus allowable. William Lagnion, ENG BCA 4287, 82-2 BCA 15,939, at 79,006; see also Reinhold Construction, Inc., ASBCA 37052, et al., 92-3 BCA 25,031, at 124,772. Appellant's claim to consultant services is a valid one. We disagree with GSA that the small value of the change did not warrant use of an outside estimator. Taylor Construction priced the change at little more than $118,000, with the Government initially offering $24,604.04. The difference is significant and warranted Taylor Construction's retention of a claims consultant. Taylor Construction is entitled to $2,453.74 for item two and $450 for item three. Items fourteen and fifteen As to item fourteen, the contracting officer allowed $330 for the cost of trips for the workers, but denied the cost of the trips for the project superintendent. We allow one-third of the cost of the project superintendent's trips, for $150, and the cost for rebar delivery of $150. We allow $630 as the total cost for this item. The contracting officer denied completely item fifteen. We agree with her conclusion; there is no explanation in the record as to the purpose of this item. Items five, eight, nine, and twelve We agree with the contracting officer's decision as to items five, eight, nine and twelve. Taylor Construction has not established that it is entitled to a greater amount for those items. Taylor Construction is awarded $266 for the extra rebar (item five), $14 for the styrofoam (item nine), and $1,280 for the concrete (item twelve). Taylor Construction did not submit invoices for the alleged extra lumber (item eight); we deny that claim. Items one, four, ten and eleven There is no dispute between the parties regarding Taylor Construction's entitlement as to items one, four, ten and eleven. Taylor Construction is entitled to $1,764 for the cost of geo- technical services, $52.76 for the pictures, $45 for brick for rebar support, and $7,710.99 for the concrete form rental. Quantum Quantum is as follows: We first consider the cost of Taylor Construction's subcontractors. We award Taylor Construction $29,100.70 for White's Construction's work, which includes White's Construction's profit and overhead. We also award Taylor Construction $1,764 for the geotechnical services, $2,453.74 for the claims consultant, and $450 for the interior estimates. The total subcontractor cost is $33,768.44. Taylor Construction's commission at a ten percent rate, which GSA does not dispute, is $3,376.84. Total subcontractor award is $37,145.28. We consider Taylor Construction's material costs. We award Taylor Construction $52.76 for item four (the pictures), $266 for item five (extra rebar), $14 for item nine (the styrofoam), $45 for item ten (brick), $7,710.79 for item eleven (concrete forms rental), and $1,280 for item twelve (extra concrete and grout). Total award for material is $9,368.55. We award direct labor of $1,218.12 with a labor burden of forty-nine percent ($596.88), and a prorated amount for the project manager of $750 with labor burden at the same rate ($367.50). GSA did not dispute the rate for labor burden. The sum of those figures is $2,932.50. We allowed $630 for the cost of trips for workers and rebar delivery, for a subtotal of $3,562.50. The total for material, labor, and trips is $12,- 931.05. The total idle equipment award is $6,709.50. The total award for direct labor, material cost, trips and idle equipment is $19,640.55 ($12,931.05 + $6,709.50). Overhead at ten percent is $1,964.05 for a subtotal of $21,604.60. We allow profit on $14,895.10 of those costs, as there is no profit allowed by the Suspension of Work clause for the idle equipment. Profit on labor and materials is $1,489.51. GSA did not dispute the applicable rates. The total of labor, material, trips, idle equipment, and profit is $23,094.11. The subtotal award for Taylor Construction's subcontractor work ($37,145.28), labor, material, idle equipment, and profit ($23,094.11) is $60,239.39. Bond and insurance at three percent is $1,807.18, for a grand total of $62,046.57. Decision The appeal is GRANTED IN PART. Taylor Construction is awarded $62,046.57 plus interest as allowed by the Contract Disputes Act of 1978, 41 U.S.C. 601-613 (1994). _________________________ ANTHONY S. BORWICK Board Judge We concur: _________________________ _________________________ EDWIN B. NEILL CATHERINE B. HYATT Board Judge Board Judge