DENIED: August 31, 1995 GSBCA 13142-TD RAGSDALE, BEALS, HOOPER & SEIGLER, Appellant, v. DEPARTMENT OF THE TREASURY, Respondent. C. Murray Saylor, Jr., of Ragsdale, Beals, Hooper & Seigler, Atlanta, GA, counsel for Appellant. William A. Goss, Office of Regional Counsel, Internal Revenue Service, Atlanta, GA, counsel for Respondent. Before Board Judges NEILL and GOODMAN. GOODMAN, Board Judge. Appellant, Ragsdale, Beals, Hooper & Seigler, entered into a contract with respondent, the Department of the Treasury, Internal Revenue Service (IRS), to provide services as an expert witness. Appellant provided the services as required by the contract and filed a claim under the Contract Disputes Act of 1978 for $17,058.65. The contracting officer issued a decision denying the claim, and appellant appealed to this Board, electing the accelerated procedure pursuant to Board Rule 14.[foot #] 1 Both parties have elected, pursuant to Rule 11, to submit the case for a decision on the written record without an oral hearing. We deny the appeal. Findings of Fact 1. The IRS sought to procure expert witnesses to aid in litigation with a taxpayer (the taxpayer) in the United States Tax Court (Tax Court). ----------- FOOTNOTE BEGINS --------- [foot #] 1 48 CFR 6101.14 (1994), as amended by 60 Fed. Reg. 17,023, 17,027 (1995). ----------- FOOTNOTE ENDS ----------- 2. Appellant, a law firm in Atlanta, Georgia, submitted a proposal dated March 31, 1992, to perform a portion of the expert services, with the contract work to be performed primarily by two individuals (appellant's representatives). Appellant's representative who negotiated the contract and served as project manager for the contract is both an attorney and a certified public accountant. 3. Appellant's proposal read, in relevant part: As indicated in our conversations, the nature of this assignment and the uncertainty regarding the extent of research required make it difficult to estimate the total number of hours required to successfully complete this assignment. However, as part of our proposal, we have included our preliminary workplan, including estimated professional fees and deadlines . . . . . . . we estimate our professional fees to be $133,000 plus expenses. . . . . In an attempt to provide proper notification of any changes in the time required to complete our assignment, we will provide you with a monthly progress report. This report will summarize time and expense incurred to date and anticipated time and expenses required to complete the assignment. . . . . The IRS will use its best efforts to obtain documentation from [the taxpayer] which is requested and necessary for the engagement team to complete its assignment. Appeal File, Exhibit 8 at 7-9.[foot #] 2 4. Attached to appellant's proposal was a proposed budget workplan setting forth the estimated hours, hourly rate, estimated professional fees, estimated workdays, and preliminary deadline for each of the four phases of work to be performed. Appeal File, Exhibit 8. ----------- FOOTNOTE BEGINS --------- [foot #] 2 On April 5, 1995, appellant submitted three exhibits as its supplement to the appeal file, which the Board has numbered Exhibits 5-7, respectively. The proposal was submitted at the request of the Board after receipt of the initial record submissions. The Board has included the proposal in the appeal file as Exhibit 8. ----------- FOOTNOTE ENDS ----------- 5. Appellant and the IRS entered into contract number Tir- 92-SE-32 (the contract) dated September 10, 1992. Appeal File, Exhibit 1. The purpose of the contract was stated as follows: C.1. PURPOSE The Internal Revenue Service requires the services of an expert witness in the case of [the taxpayer] . . . to obtain facts and data and to reach conclusions on the following issues . . . . Id. at 5. 6. The contract stated on the cover page: "The Internal Revenue Service accepts your revised proposal dated September 8, 1992,[foot #] 3 and CLIN 001 for the Basic Service is awarded at the rates shown in Section B." Appeal File, Exhibit 1 at 1. 7. Section C.2 of the contract contained a detailed scope of work. Appeal File, Exhibit 1 at 5-6. Work to be performed was divided into four phases: 1) Basic Service, Phase I, CLIN 001- Research/Investigation/Progress Report; 2) Option I, Phase II, CLIN 002 - Written Report; 3) Option II, Phase III, CLIN 003 - Pre-trial Preparation; and 4) Option III, Phase IV, CLIN 004 - Trial Testimony. Id. at 2, 6-7.[foot #] 4 With regard to the anticipated trial date, Section C.3.4. read as follows: Although not presently set for trial, it is anticipated that the case will be set for the winter 1993 term of the Tax Court in Atlanta, GA. The expert should understand that the trial calendars are set by the Tax Court, and not IRS; however, the expert will be given as much advance notice as possible of the scheduled court date. Id. at 7. 8. Section B of the contract contained estimated costs for each phase of the work which were very similar to those in the budget workplan in the proposal except for Phase I, together with estimated hours and hourly rate for each individual employed by appellant expected to work on the contract. The total of the estimated costs for each phase was $137,225, which equalled the contract ceiling price. Appeal File, Exhibit 1 at 2-3. 9. The contract contained the following clauses pertinent to the contract price: ----------- FOOTNOTE BEGINS --------- [foot #] 3 The September 8, 1992, revised proposal amended the cost of Phase I, which was later increased by modification. [foot #] 4 The contract also contained Option IV, CLIN 005, Administrative Costs. Appeal File, Exhibit 1 at 2. ----------- FOOTNOTE ENDS ----------- Contract Ceiling Price The contract ceiling price for the basic service and option requirement, which the Contractor exceeds at his/her own risk, is established by the Government in the amount of $137,225.00. . . . . C.6 HOURLY RATES The hourly rates quoted in Section B will be binding throughout all phases of the contract. Each phase is governed by its own not-to-exceed limitation. Only the Contracting Officer can increase a not-to-exceed limitation by contract modification. Appeal File, Exhibit 1 at 4, 8. 10. The contract contained the following clause: H.4 NONPAYMENT FOR UNAUTHORIZED WORK No payments will be made for any unauthorized supplies or services, or for any unauthorized changes to the work specified herein. This includes any service performed by the Contractor of his own volition or at the request of any individual other than a duly appointed Contracting Officer. Only a duly appointed Contracting Officer is authorized to change the specifications, terms, and conditions in this contract. Appeal File, Exhibit 1 at 19. 11. The contract incorporated by reference[foot #] 5 Federal Acquisition Regulation (FAR) 52.232-7, Payments Under Time-and-Materials and Labor-Hour Contracts (Apr 1984), Appeal File, Exhibit 1 at 22, which read, in pertinent part: (c) Total cost. It is estimated that the total cost to the Government for the performance of this contract shall not exceed the ceiling price set forth in the Schedule and the Contractor agrees to use its best efforts to perform the work specified in the Schedule and all obligations under this contract within such ceiling price. If at any time the Contractor has ----------- FOOTNOTE BEGINS --------- [foot #] 5 Section I.1 of the contract reads as follows: "This contract incorporates one or more clauses by reference, with the same force and effect as if they were given in full text. Upon request, the Contracting Officer will make their full text available." Appeal File, Exhibit 1 at 21. ----------- FOOTNOTE ENDS ----------- reason to believe that the hourly rate payments and material costs that will accrue in performing this contract in the next succeeding 30 days, if added to all other payments and costs previously accrued, will exceed 85 percent of the ceiling price in the Schedule, the Contractor shall notify the Contracting Officer giving a revised estimate of the total price to the Government for performing this contract with supporting reasons and documentation. If at any time during performing this contract, the Contractor has reason to believe that the total price to the Government for performing this contract will be substantially greater or less than the stated ceiling price, the Contractor shall so notify the Contracting Officer, giving a revised estimate of the total price for performing this contract, with supporting reasons and documentation. If at any time during performing this contract, the Government has reason to believe that the work to be required in performing this contract will be substantially greater or less than the stated ceiling price, the Contracting Officer will so advise the Contractor, giving the then revised estimate of the total amount of effort to be required under the contract. (d) Ceiling price. The Government shall not be obligated to pay the Contractor any amount in excess of the ceiling price in the Schedule, and the Contractor shall not be obligated to continue performance if to do so would exceed the ceiling price set forth in the Schedule, unless and until the Contracting Officer shall have notified the Contractor in writing that the ceiling price has been increased and shall have specified in the notice a revised ceiling that shall constitute the ceiling price for performance under this contract. When and to the extent that the ceiling price set forth in the Schedule has been increased, any hours expended and material costs incurred by the Contractor in excess of the ceiling price before the increase shall be allowable to the same extent as if the hours expended and material costs had been incurred after the increase in the ceiling price. 48 CFR 52.232-7 (1994). 12. The contract incorporated by reference FAR 52.243-3, Changes--Time-and-Materials or Labor-Hours (Aug 1987), Appeal File, Exhibit 1 at 22, which read as follows: (a) The Contracting Officer may at any time, by written order, and without notice to the sureties, if any, make changes within the general scope of this contract in any one or more of the following: (1) Drawings, designs, or specifications. (2) Method of shipment or packing. (3) Place of delivery. (4) Amount of Government-furnished property. (b) If any change causes an increase or decrease in any hourly rate, the ceiling price, or the time required for performance of any part of the work under this contract, whether or not changed by the order, or otherwise affects any other terms and conditions of this contract, the Contracting Officer shall make an equitable adjustment in the (1) ceiling price, (2) hourly rates, (3) delivery schedule, and (4) other affected terms, and shall modify the contract accordingly. (c) The Contractor must assert its right to an adjustment under this clause within 30 days from the date of receipt of the written order. However, if the Contracting Officer decides that the facts justify it, the Contracting Officer may receive and act upon a proposal submitted before final payment of the contract. (d) Failure to agree to any adjustment shall be a dispute under the Disputes clause. However, nothing in this clause shall excuse the Contractor from proceeding with the contract as changed. 13. The contract incorporated by reference FAR 52.249-14, Excusable Delays (Apr 1984), Appeal File, Exhibit 1 at 22, which read as follows: (a) Except for defaults of subcontractors at any tier, the Contractor shall not be in default because of any failure to perform this contract under its terms if the failure arises from causes beyond the control and without the fault or negligence of the Contractor. Examples of these causes are (1) acts of God or of the public enemy, (2) acts of the Government in either its sovereign or contractual capacity, (3) fires, (4) floods, (5) epidemics, (6) quarantine restrictions, (7) strikes, (8) freight embargoes, and (9) unusually severe weather. In each instance, the failure to perform must be beyond the control and without the fault or negligence of the Contractor. "Default" includes failure to make progress in the work so as to endanger performance. (b) If the failure to perform is caused by the failure of a subcontractor at any tier to perform or make progress, and if the cause of the failure was beyond the control of both the Contractor and subcontractor, and without the fault or negligence of either, the Contractor shall not be deemed to be in default, unless-- (1) The subcontracted supplies or services were obtainable from other sources; (2) The Contracting Officer ordered the Contractor in writing to purchase these supplies or services from the other source; and (3) The Contractor failed to comply reasonably with this order. (c) Upon request of the Contractor, the Contracting Officer shall ascertain the facts and extent of the failure. If the Contracting Officer determines that any failure to perform results from one or more of the causes above, the delivery schedule shall be revised, subject to the rights of the Government under the termination clause of this contract. 14. The contract price was modified during the course of performance. Modification #1, dated October 1, 1992, increased the price of CLIN 001, originally $70,000, to $72,000. Appeal File, Exhibit 2 at 1. Modification #2, dated November 30, 1992, increased the price of CLIN 001 to $78,200. The new ceiling price was erroneously established at $143,425, id. at 2-3, which was corrected by modification #3, dated December 18, 1992, to $145,425, id. at 4. 15. By letter dated February 14, 1994, appellant requested an increase in Phase II, CLIN 002 - written report, of $49,125. Appeal File, Exhibit 2 at 5-6. Respondent issued modification #4, dated March 29, 1994, which increased CLIN 002 by a total of $49,125.28. This was accomplished by adding $38,421 to CLIN 002 and moving the balance of CLIN 005 in the amount of $10,704.28 to CLIN 002. The new ceiling price was established at $183,846. Id. at 7-8. 16. By April 1994, appellant had performed work in Phase I and Phase II. According to invoices dated February 3 and March 10, 1994, appellant had billed respondent a total of $143,346.75. Appeal File, Exhibit 2 at 10. A total of $13,799.25 remained in Phase II, CLIN 002, the written report. By letter dated April 13, 1994, respondent advised appellant: [Y]our [written] report is due to be delivered this month and . . . the balance due upon delivery is $13,799.25. We plan to pay this amount in total upon delivery of the report. Therefore, you should include a revised invoice for the full amount due and owing on Phase II of your contract upon delivery of your report . . . . Appeal File, Exhibit 2 at 12. 17. By invoice dated June 14, 1994, appellant billed respondent for services rendered under Phase II. Appellant requested $13,799.25, the amount remaining in Phase II, and an additional $32,856.25 for fees and expenses incurred in completing the draft written report. Appeal File, Exhibit 2 at 14. 18. Upon receipt of appellant's invoice dated June 14, 1994, the contracting officer contacted appellant by telephone. The memorandum read, in pertinent part: I contacted [appellant's representative] on 6/15/94 and advised him we could not pay the additional amount [$32,856.25] and that he was to stop work immediately. [Appellant's representative] continued to say that he did not understand the contract. I went over with him that the contract explicitly stated he should not exceed any ceiling for any CLIN and that if he did so, it was at his own risk and that he had been advised about this same issue in February when he presented us with a revised proposal. His response was that he knew this was an important tax case and his mission was to finish the work in time to meet the government's short deadline. Appeal File, Exhibit 2 at 13. 19. By letter dated June 16, 1994, the contracting officer advised appellant in writing that she could not authorize payment of the additional $32,856.25 requested by appellant for Phase II. The letter referenced the fact that the contract was awarded as a "labor-hour type contract, with an established ceiling price which the contractor exceeds at his/her own risk;" paragraph C.6 of the contract states that each phase is governed by a not-to- exceed limitation, which can only be increased by the contracting officer by contract modification, and that the Government is not obligated to pay any amount in excess of the ceiling price. Appeal File, Exhibit 2 at 15. 20. By letter dated June 18, 1994, appellant offered explanations as to why an increase in the ceiling price for Phase II had been requested. The letter read in part: I suggested that to resolve this issue we would divide the $34,117.29[foot #] 6 in half to acknowledge that I should have dealt with this issue in April, not in June and to accept [the IRS attorney's] criticism that the report should not have cost so much. . . . On the other hand, there is no time for further bickering about fees. . . . To respond to this concession, we would like you to deliver to us . . . the outstanding fees, $13,799.25 [the balance remaining for Phase II] previously approved and $17,058.65 representing half the fees incurred during April and May 1994. . . . I hope this is responsive to your request and that it resolves the fee issue in this case. Appeal File, Exhibit 2 at 19-20. 21. The contracting officer was willing to accept the proposed resolution set forth in appellant's letter. On June 23, 1994, she telecopied an Article of Understanding to appellant and discussed the document with appellant's representative, who suggested revisions. On June 24, 1994, the contracting officer revised the Article of Understanding and again telecopied it to appellant. Appeal File, Exhibit 2 at 21. The revised document read, in pertinent part: IRS and the contractor agree to an increase in the Phase II price in the amount of $17,058.65, for a new Phase II ceiling price of $94,233.65 . . . in full satisfaction of all work performed to date plus any work needed to correct the draft report previously presented . . . . . . . . . . . By signing below, the contractor does not waive the rights provided under the Disputes Clause (FAR 52.233-1) contained in the contract. Id. at 22-23. 22. On June 27, 1994, the contracting officer had another telephone conversation with appellant's representative. The memorandum of her telephone conversation read, in pertinent part: On 6/27/94, [appellant's representative] called that he had problems with the revised Article I had sent him. . . . We then discussed issuance of the modification in the amount of $17,059 for Phase II. He then asked me ----------- FOOTNOTE BEGINS --------- [foot #] 6 The record is not clear as to the discrepancy between this figure and the $32,856.25 requested previously by appellant. ----------- FOOTNOTE ENDS ----------- what would happen on the remaining $17,058.65 that we were not paying him - how could he get paid for this? I told [him] that the only avenue open to him was the Disputes Clause . . . . He said he didn't know at this point if he would pursue it, but wanted to find out if there was anything that he could do about trying to get the money he felt was still due them. Appeal File, Exhibit 2 at 21. 23. Appellant did not sign the Article of Understanding. Appeal File, Exhibit 2 at 22. 24. On June 30, 1994, respondent issued modification #5, which read: Modification No. 5 is issued to add $17,059.00 to CLIN 002, Phase II. This brings the total cost of Phase II to $94,234.00, allowing contractor to complete all work in progress for Phase II, including delivery of a Final Written Report, as required by the contract. Appeal File, Exhibit 2 at 28. 25. Appellant thereafter submitted an invoice dated July 15, 1994, in the amount of $17,058.65, representing the amount allegedly due for Phase II, in addition to the amount paid pursuant to modification #5. Appeal File, Exhibit 2 at 29. 26. By letter dated September 14, 1994, appellant submitted a claim pursuant to the Disputes clause in the amount of $17,058.65, for the "unpaid portion of bills related to the Contract." The letter further stated that "[t]he payment being requested is admittedly in excess of the contract amount and we are asking for this payment on the basis of equity and fairness." The remainder of the letter reiterated issues raised in appellant's letter of June 18, 1994. Appeal File, Exhibit 3. 27. By letter dated November 10, 1994, the contracting officer issued a final decision denying the claim. The decision referenced the contract clauses mentioned in the contracting officer's previous letter dated June 16, 1994, and stated further: In June 1994, you submitted an invoice in the amount of $34,117.29 upon delivery of the draft report (Phase II). You acknowledged that this amount exceeded the money on the contract for Phase II, and in your letter dated June 18, 1994, you proposed resolving the issue by dividing this amount in half. The Internal Revenue Service accepted your proposal, increasing the contract in the amount of $17,059 (rounded), and subsequently issuing payment to you in this agreed-upon amount. Based on my review and further consideration of this matter, I am denying your claim . . . . I feel that you have been duly compensated for all work performed. Appeal File, Exhibit 4. 28. Appellant appealed the contracting officer's final decision to this Board on January 4, 1995. 29. Appellant alleges that its understanding with the Government was that it was to be compensated for all reasonable hours worked. Appellant's Reply to Government's Answer (June 19, 1995). Appellant states: The real problem in budgeting the hours required in the case is that [the taxpayer's] litigators were very good. The Government was not able to deliver to Appellant the information necessary to complete the project even though more than a year of extra time for discovery elapsed than was contemplated in the original contract. The consequence of this was that nearly every section of [our] report includes comments to the effect that even though Appellant did not get all the information requested, Appellant devised and performed alternate procedures in order to reach reasonable and understandable conclusions.[foot #] 7 Appellant's Response to Government's Submission Dated May 22, 1995, at 2. 30. Appellant submitted into the record a copy of its final report produced pursuant to the contract. Appellant notes in its transmittal letter that "upon reflection, the entire report consists of alternate procedures." The report stated, in relevant part: The nature of the procedures we performed was based on the nature of the information made available to us. . . . Since we did not have the opportunity to perform exhaustive interviews with the financial or accounting staff of [the taxpayer], we have considered the amount ----------- FOOTNOTE BEGINS --------- [foot #] 7 This was reiterated in appellant's final record submission to the Board dated August 22, 1995: The whole problem in the case related to getting information in a useable form from [the taxpayer] and their lawyers . . . . Appellant's task was two or three times more difficult than was reasonably predicted in 1992 because [respondent's representative] was never able to force [the taxpayer] and its attorneys to produce the information that was the basis for Appellant's original proposal. ----------- FOOTNOTE ENDS ----------- of revenue to be represented by the revenue accounts . . . . Although the data provided was not in compliance with our request, we used it for the basis for our analysis as the best information available to us. Expert Witness Report (June 30, 1994) at 19, 30, 37. 31. Appellant also submitted an affidavit by appellant's representative explaining the additional work allegedly required to prepare the report. Appellant alleges that the causes of the increase in fees for Phase II were a continual slipping of the anticipated trial date (the trial was scheduled to take place in May 1994, and did not occur until September 1994), failure to receive required information from the taxpayer, and greater difficulty than anticipated in using the data received from the taxpayer. Appellant alleges unavailability of computerized analysis of the taxpayer's accounting records,[foot #] 8 difficulty in analyzing the taxpayer's billing information, and its own difficulty in report writing and editing. Affidavit of C. Murray Saylor, Jr. (August 2, 1995). 32. Respondent alleges that the contract contained a ceiling price, that appellant knowingly exceeded the ceiling price without authorization, and that the reasons alleged by appellant for the increases in cost were not Government-caused, but were either risks assumed by appellant or events which did not cause appellant to increase its efforts to perform the contract. Respondent's Answer (February 27, 1995). 33. Respondent submitted an affidavit from its Special Trial Attorney (respondent's representative) responsible for managing the litigation between the IRS and the taxpayer. Respondent's representative stated with regard to the allegations of the postponement of the trial date: [It] was explained to [appellant] . . . that [the IRS] expected the trial to be set sometime between December, 1993 and February, 1994. . . . the Tax Court set the case for trial beginning on April 25, 1994. [Appellant was] informed of this trial date and that their report was due to me not later than February 25, 1994. On February 8, 1994, the Tax Court struck the [trial] from the April 25, 1994 trial session. I ----------- FOOTNOTE BEGINS --------- [foot #] 8 Appellant alleges that respondent "asserted that [the] accounting records [of the taxpayer] would be available to Appellant on computer disc or tape so Appellant could quantify the amount of inventory type items." When the records were not available in that form, appellant states that it "adjusted to this problem by adopting a 'sampling' approach." Affidavit of C. Murray Saylor, Jr. (August 2, 1995) at 2. ----------- FOOTNOTE ENDS ----------- informed [appellant's representatives] of this action and told them that they would be given additional time to complete the report based on the new trial date selected by the Court. On April 18, 1994 the Tax Court calendared the cases for August 29, 1994. I . . . told [appellant's representatives] that their report was due to me not later than June 10, 1994. Because of administrative problems involving court room space . . . the Court postponed the [taxpayer] matter until September 7, 1994. Affidavit of Robert J. Shilliday, Jr. (Shilliday Affidavit) (August 15, 1995) at 5-6. 34. With regard to the unavailability of computerized analysis of accounting records, respondent's representative stated that "[appellant] was . . . informed that I could not guarantee that the Internal Revenue Service could obtain this information in that particular form." Shilliday Affidavit at 13. 35. With regard to difficulty in analyzing billing information, respondent's representative stated: [Appellant was] provided with sample [taxpayer] bills by the Internal Revenue Service during 1992 and early 1993. [Appellant's representative's] decided they wanted additional bills to analyze. These . . . billings were requested [from the taxpayer] as per their instructions and were received by me on January 7, 1994 and by [appellant] on January 10, 1994. The only problem in the analysis of the bills was that some of the documents copied by [the taxpayer] made it difficult to read some bills. Any problems in reading the documents provided could not possibly explain why additional charges needed to be incurred after February 14, 1994. These bills were analyzed and a copy of the analysis provided to me prior to February 14, 1994. Shilliday Affidavit at 13-14. 36. With regard to difficulty in report writing, respondent's representative stated: There were no unforeseen report writing requirements foist [sic] upon [appellant]. I was very clear to [appellant] beginning in 1992 on the subject of the quality of the report which was required in this case. I provided [appellant] with detailed instructions including sample reports from previous cases so that there would be no misunderstanding or mistake concerning the length of the report, the format of the report, or the quality of the report. Shilliday Affidavit at 14. Discussion Appellant entered into a contract with the IRS to perform services as an expert witness in litigation between the IRS and a taxpayer. Finding 5. This dispute arises from performance of Phase II of the contract. Appellant performed services which it valued at $34,117.29 more than the authorized ceiling price for that phase without giving the required contractual notice. After invoicing respondent for the amount in excess of the ceiling, and following discussions with the contracting officer, respondent increased the ceiling price for Phase II by $17,059 and paid appellant that amount. Findings 17-24. Appellant invoiced respondent and submitted a claim to recover the remaining $17,059 (rounded), but respondent has denied its claim. Findings 25-27. Appellant appealed to this Board, contending that: [t]he understanding between the Government and the Appellant was that the Appellant would be compensated for all reasonable hours worked. The written contract was meant to reflect this understanding. The Appellant performed the services which are in dispute. . . . . . . . Appellant made it very clear from the beginning of the relationship that Appellant was not a government contract expert and objected to the 58 page contract form which incorporated by reference hundreds of thousands of additional pages of rules and regulations with which the Appellant was unfamiliar. The contract was meant to facilitate the relationship and prevent misunderstanding. Even with all of the flexibility permitted by the government contracting rules, the Government now claims that the contract does not reflect the true nature of the relationship, that is, that the Appellant would be compensated for all reasonable hours worked. Appellant's Response to Government's Submission Dated May 22, 1995, at 1, 3. Respondent alleges that there was no agreement to compensate appellant for all reasonable hours worked; rather, the contract contained a ceiling price which appellant knowingly exceeded without authorization. Finding 32. The clear and unambiguous terms of the contract do not support appellant's assertion that the agreement between the parties was to compensate appellant for all reasonable hours worked. There is nothing in the contract to suggest that appellant could exceed the ceiling price and expect to be paid, even if the number of hours expended were reasonable. A ceiling price for each phase of the work was clearly set forth in the contract, Findings 8, 9, with an admonishment that the contractor would not be compensated for work which was not authorized. Finding 10. The contract also contained a notice requirement to be exercised by the contractor if it believed the total cost would exceed a ceiling price. Finding 11. Appellant's own correspondence admits that it knew that appellant exceeded the ceiling price and failed to give the proper notice during the time frame required by the contract. Finding 20. Appellant is a law firm, and its representative who negotiated the contract and served as project manager is both an attorney and a certified public accountant. Finding 2. Even so, in order to avoid the plain meaning of the contract, appellant asserts that it is not a "government contract expert." One need not be a "government contract expert" to comprehend the meaning of the term "ceiling price," the contractual requirement for notice if the contractor knew it would exceed the ceiling price, and the warning that payment for unauthorized work would not be made. If appellant objected to the fifty-eight page contract form, as it now asserts, appellant was free to seek revision of the proposed contract to reflect what it believed was the understanding of the parties before it executed the contract, or appellant could simply have refused to execute the contract. This Board has discussed in detail the validity of cost ceilings in cost-reimbursable contracts. See CRC Systems, Inc. v. General Services Administration, GSBCA 11173, 93-2 BCA 25,842. In that case, as in the instant case, appellant attempted to interpret the contract as not containing a cost ceiling, when the contract contained a clear and unambiguous ceiling. Such an interpretation is unreasonable, in light of a clear and unambiguous contractual provision, as it would render meaningless and superfluous the clause which the contractor is attempting to avoid. Appellant also asserts that it is entitled to be paid for the amounts in excess of the ceiling for Phase II because of events beyond its control which it could not predict at the time the contract was negotiated and awarded. Appellant asserts several reasons for the need for an increase in fees -- a continual slipping of the trial date for which it was to prepare its expert report, unavailability of computerized analysis of accounting records, difficulty in analyzing billing information, and difficulty in report writing and editing. Findings 30, 31. The circumstances alleged by appellant are not breaches of contract by respondent, nor do such circumstances, in and of themselves, entitle appellant to an equitable adjustment of the contract price under the Changes clause of the contract. Finding 12. The work which appellant was required to do under these circumstances was well within the purview of the contract's statement of work. At most, appellant has described circumstances which were beyond the control of and not the fault of respondent, which perhaps caused appellant to incur excusable delay in performing its services under the contract. The remedy for excusable delay is additional time to perform, Finding 13, which appellant was afforded by respondent. Finding 33. We do not, however, view these circumstances as being within the control of respondent. The actual date on which the trial between respondent and the taxpayer commenced was not within respondent's control, and respondent did not guarantee when the trial would take place. This was specifically set forth in the contract and explained by respondent to appellant. Findings 7, 33. Appellant further alleges that respondent "asserted that [the] accounting records [of the taxpayer] would be available to Appellant on computer disc or tape so Appellant could quantify the amount of inventory type items." When the records were not available in that form, appellant states that it "adjusted to this problem by adopting a 'sampling' approach." Finding 31. Appellant may have assumed that it would receive data in this form, but there is nothing in the record to support its assumption, nor did respondent guarantee the data would be available as appellant assumed. Respondent denies that it represented that the information would be available on computer disc or tape. Finding 34. Appellant's proposal specifically states that respondent was only required to use its "best efforts" to obtain information from the taxpayer. Finding 3. Respondent had no control over the form of the taxpayer's data, nor could it guarantee when it would receive the information in response to its discovery requests in litigation. While appellant alleges that "the real problem in budgeting the hours required . . . is that [the taxpayer's] litigators were very good," Finding 29, there is no evidence that respondent failed to use its best efforts during the discovery process to obtain the taxpayer's information. The same is true with regard to appellant's alleged difficulty in analyzing billing information received from the taxpayer. Respondent had no control over the content of the information received from the taxpayer. Appellant, in its report, states that it resorted to sampling methods because it "did not have the opportunity to perform exhaustive interviews with the financial or accounting staff of [the taxpayer]." Finding 30. Appellant had no reason to assume that it would have been able to conduct such interviews. Respondent states that the taxpayer's bills were analyzed by appellant and a copy of appellant's analysis was provided to respondent prior to February 14, 1994. Finding 35. As respondent received the analysis before February 14, 1994, we agree with respondent that there is no explanation as to how difficulties in analyzing the data could have caused appellant's costs to increase after that date. Finally, appellant alleges that it encountered difficulties in drafting the final report, based upon the actual trial date and the form of the data received. Accordingly, even these alleged difficulties cannot be attributed to respondent. Decision The appeal is DENIED. ______________________ ALLAN H. GOODMAN Board Judge I concur: ______________________ EDWIN B. NEILL Board Judge