Balfour Beatty Construction, LLC v. Administrator of the General Services Administration

N OTE : This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
BALFOUR BEATTY CONSTRUCTION, LLC,
Appellant
v.
ADMINISTRATOR OF THE GENERAL SERVICES
ADMINISTRATION,
Appellee
______________________
2023-2229
______________________
Appeal from the Civilian Board of Contract Appeals in
No. 6750, Administrative Judge Harold C. Kullberg, Ad-
ministrative Judge Kathleen J. O'Rourke, Administrative
Judge Patricia J. Sheridan.
______________________
Decided: March 13, 2025
______________________
T HOMAS HENDERSON DUPREE , JR ., Gibson Dunn &
Crutcher, LLP, Washington, DC, argued for appellant.
Also represented by REGINALD J ONES, DIANA L YN C URTIS
SHUTZER , N ICHOLAS SOLOSKY, Fox Rothschild LLP, Wash-
ington, DC.
BRYAN MICHAEL B YRD, Commercial Litigation Branch,
Civil Division, United States Department of Justice,
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BALFOUR BEATTY CONSTRUCTION, LLC v. GSA 2
Washington, DC, argued for appellee. Also represented by
B RIAN M. B OYNTON, PATRICIA M. MCC ARTHY, C ORINNE
A NNE N IOSI .
______________________
Before R EYNA , SCHALL, and HUGHES, Circuit Judges.
HUGHES, Circuit Judge.
Balfour Beatty Construction, LLC, appeals the decision
of the Civilian Board of Contract Appeals that granted in
part some of Balfour’s claims to recover increased costs al-
legedly incurred because of compensable delay, errors in
the solicitation bridging documents, differing site condi-
tions, and changes to the contract. Balfour contends that it
is entitled to recover the increased costs associated with
the claims the Board denied. Because we conclude the
Board erred in its design defect analysis, we vacate the
Board’s denial of the design defect claim with respect to the
mat slab foundation and remand for further proceedings
not inconsistent with this opinion.
I
In 2016, the General Services Administration issued a
solicitation for a Request for Proposals from a list of quali-
fied offerors for a construction project. GSA selected the
qualified firms based on responses to a Request for Quali-
fications it had issued earlier in 2016. The project entailed
construction of phase two of the central utilities plant to
support the U.S. Department of Homeland Security Head-
quarters on the grounds of the former St. Elizabeths Hos-
pital. J.A. 1–2 & n.2; see also J.A. 151. The Request for
Qualifications specified that GSA was using a design-build
bridging project delivery method and that the bridging doc-
uments were approximately 30% complete. J.A. 151; 1334.
The contract required that the selected contractor validate
the design within 60 days of the notice to proceed, and then
complete the design. The bridging documents also stated:
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BALFOUR BEATTY CONSTRUCTION, LLC v. GSA 3
[t]he Bridging Documents are conceptual in
nature and are intended to depict the overall
intent of the project terms of general design
concept, the major architectural elements,
and describe the required performance of the
other systems. As Bridging Documents they
are preliminary in nature, are not fully coor-
dinated and are not intended to indicate or de-
scribe the scope of work required for the full
performance or completion of the project.
J.A. 5.
GSA awarded the contract to Balfour. Balfour alleges
it ran into a variety of issues with the government’s design,
the site conditions, and various delays. Appellant’s Open-
ing Br. 8–20. Despite these issues, GSA accepted the pro-
ject as substantially complete in 2019, and the project was
deemed fully complete in early 2020. J.A. 156.
After the project was accepted as substantially com-
plete, Balfour submitted a claim for increased costs. GSA’s
contracting officer denied the claim in full. Balfour ap-
pealed to the Board. The Board granted Balfour’s claims in
part and denied the remainder of the claims. Balfour
timely filed its notice of appeal within 120 days of the
Board’s decision. We have jurisdiction under 41 U.S.C.
§ 7107(a)(1)(A) and 28 U.S.C. § 1295(a)(10).
II
We review the Board’s determinations on questions of
law, including contract interpretation, de novo. Reliable
Contracting Grp., LLC v. Dep’t of Veterans Affs., 779 F.3d
1329, 1331 (Fed. Cir. 2015) (internal citation omitted). The
Board’s factual determinations may not be set aside unless
they are “(A) fraudulent, arbitrary or capricious; (B) so
grossly erroneous as to necessarily imply bad faith; or
(C) not supported by substantial evidence.” 41 U.S.C.
§ 7107(b); see also Rockies Express Pipeline LLC v. Salazar,
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BALFOUR BEATTY CONSTRUCTION, LLC v. GSA 4
730 F.3d 1330, 1335 (Fed. Cir. 2013). “Substantial evidence
is such relevant evidence as a reasonable mind might ac-
cept as adequate to support a conclusion.” Braun v. Dep’t of
Health & Hum. Servs., 983 F.3d 1295, 1301 (Fed. Cir.
2020) (internal quotation marks and citation omitted).
III
Balfour raises a number of issues on appeal, but we
need only discuss two in detail: design defects with respect
to (1) the mat slab foundation and (2) the ventilation re-
quirements. Balfour alleges that it incurred increased costs
from “additional design and work scope associated with the
required redesign . . . that arose out of deficiencies in the
Bridging Design Documents provided by GSA.” J.A. 81 (in-
ternal quotation marks omitted). Specifically, Balfour con-
tends it needed to redesign and depart from the bridging
design to accommodate a thicker mat slab, which was re-
quired to handle the loads of the equipment and building
columns, and from having to increase the height of the
space to accommodate the equipment needed to provide ad-
equate ventilation. Appellant’s Opening Br. 9–10. The
Board denied Balfour’s claims. J.A. 83.
In United States v. Spearin, the Supreme Court held
that “if the contractor is bound to build according to plans
and specifications prepared by the owner, the contractor
will not be responsible for the consequences of defects in
the plans and specifications.” 248 U.S. 132, 136 (1918) (in-
ternal citations omitted). We have since clarified that this
implied warranty attaches in contracts that contain design
specifications, which “explicitly state how the contract is to
be performed and permit no deviations.” Stuyvesant Dredg-
ing Co. v. U.S., 834 F.2d 1576, 1582 (Fed. Cir. 1987). But if
the contract contains a performance specification, which
specifies the result to be obtained but leaves the contractor
free to determine how to achieve those results, the implied
warranty does not attach. Id.
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BALFOUR BEATTY CONSTRUCTION, LLC v. GSA 5
In a design-build bridging project delivery method, the
government provides a partial design with the expectation
that the contractor will complete the design and build the
project. The Board analyzed the provisions of the contract
and “consider[ed] to what extent a thirty-percent de-
sign . . . was design or performance.” J.A. 82. The Board de-
termined that the bridging documents did not contain a
warranty for the design of the mat slab at a particular
thickness. The Board noted that, in addition to the contract
drawing that directed the contractor to match the existing
foundation thickness of 18 inches, GSA provided calcula-
tions from GSA consultants that called for a 24-inch foun-
dation. The Board concluded that because these documents
“raised a question about the mat slab thickness that should
have caused Balfour to raise the issue before contract
award,” Balfour was not entitled to recover costs related to
designing the thicker mat slab. J.A. 83. We disagree.
The contract drawing indicated that Balfour should
“match existing building foundations,” which were
18 inches thick. J.A. 11, 83. We determine the language in
the drawing is sufficiently definite to constitute a design
specification, and the Board erred in construing this as a
performance specification. We conclude that there was an
implied warranty with respect to the mat slab thickness.
Further, even if there were a conflict between the drawing
and the calculations, the mat slab Balfour ended up having
to build was between 43 and 53 inches thick—almost dou-
ble what the calculations required.
The Board then considered the additional costs related
to meeting ventilation requirements. Balfour argues it in-
curred additional costs in complying with ventilation re-
quirements because compliant generators were too large to
fit in the building space. See Appellant’s Opening Br. 34–
35. The Board noted that during the solicitation, GSA ad-
vised potential offerors that compliance with certain venti-
lation requirements “must be . . . assumed as the basis for
bids.” J.A. 83. Therefore, the Board determined that
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BALFOUR BEATTY CONSTRUCTION, LLC v. GSA 6
Balfour was not entitled to any increased costs incurred in
complying with these ventilation requirements. J.A. 84. We
agree. The ventilation requirements were set out as a per-
formance specification, and therefore, no implied warranty
attached.
IV
We have considered the remainder of Balfour’s argu-
ments and find no reversible error. Because we conclude
that the Board erred in determining that there was no im-
plied warranty with respect to the mat slab thickness, we
reverse and remand for further proceedings not incon-
sistent with this opinion.
VACATED AND REMANDED
C OSTS
Costs to appellant Balfour.
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