______________________________________________ GRANTED IN PART: January 30, 1996 _____________________________________________ GSBCA 12058 P.J. DICK INCORPORATED, Appellant, v. GENERAL SERVICES ADMINISTRATION, Respondent. John T. Flynn and Thomas J. Kelleher, Jr., of Smith, Currie & Hancock, Atlanta, GA, counsel for Appellant. Sharon A. Roach, Gerald L. Schrader, Martin A. Hom, Robert C. Smith, and M. Leah Wright, Office of General Counsel, General Services Administration, Washington, DC, counsel for Respondent. Before Board Judges DANIELS (Chairman), BORWICK, and NEILL. BORWICK, Board Judge. This appeal involves a contract for the renovation of certain floors of the United States Courthouse and Post Office, Pittsburgh, Pennsylvania, a thirteen-story building. The con- tractor and appellant is P.J. Dick Incorporated (P.J. Dick). The respondent is the General Services Administration (GSA). P.J. Dick filed a claim of $990,301.50 for alleged delays of 213 days. P.J. Dick is entitled to $338,802.48 for its claim. The parties dispute the date of substantial completion of the project. The dispute centers on whether completion of elevator twenty-five was necessary for substantial completion. P.J. Dick maintains substantial completion occurred on September 6, 1991. We conclude that the date of substantial completion was when GSA says it was, on June 24, 1991. As of that date, the premises were suitable for their intended purpose, even though work on elevator twenty-five was not complete. We conclude that GSA was responsible for 140 days of delay from the date of the notice to proceed to June 24, 1991, the delay period for which GSA admits responsibility. P.J. Dick is not entitled to extended home office overhead for 108 of those days attributable to asbestos removal because P.J. Dick has not shown that, for the 108 days of the asbestos removal period, the delay was sudden, sporadic or uncertain as required by the applicable case law of our appellate authority. P.J. Dick is not entitled to an equitable adjustment for delay beyond the date of substantial completion. GSA admits that P.J. Dick and its subcontractors are enti- tled to field office overhead for the 140 day delay period and that P.J. Dick and its subcontractors are entitled to extended home office overhead for thirty-two of those days. The parties have stipulated to the applicable daily rates for P.J. Dick and its subcontractors. Our award of quantum is based on those stipulated rates. GSA seeks a credit against any quantum award for the mark- ups already paid on change orders. We deny GSA any credit. GSA has not shown that the paid mark-ups granted were compensation for extended overhead or field office overhead related to delay. Findings of Fact P.J. Dick's as-planned schedule before asbestos The time for contract completion was 680 days from receipt of the notice to proceed. GSA issued the notice to proceed on March 29, 1989; February 5, 1991, was the original completion date. Influence of asbestos on schedule On March 23, 1989, GSA issued change order AS05 for removal of asbestos, which included a time extension of 108 days. Appeal File, GSBCA 11676, Exhibit 8.[foot #] 1 This pushed the contract completion date to May 24, 1991. Id. Without asbestos, P.J. Dick had scheduled 371 days for completion of the third floor, and 309 days for completion of the fourth floor after completion of the third floor. Appeal File, Exhibit 320, Chart A. With the issuance of AS05, P.J. Dick scheduled 406 days for completion of the third floor work (a difference of 35 days from the original schedule) and 382 days for completion of the fourth floor work (a difference of 73 days from the original schedule.) Id., Chart B. GSA issued AS05 as a price to be determined later (PDL) modification, with pricing, particularly as to delay, reserved. Appeal File, GSBCA 11772-73, Exhibit 322 at 3 (Item 13). ----------- FOOTNOTE BEGINS --------- 1[foot #] The appeals of the Post Office renovation project involved numerous dockets. Unless designated by another docket number, references in this opinion to the Appeal File and Appellant's Supplemental Appeal File are for GSBCA 12058. ----------- FOOTNOTE ENDS ----------- On October 17, 1990, the contracting officer advised P.J. Dick that he had negotiated directly with a firm named AEC, which, according to the contracting officer, had agreed to perform asbestos removal for AS05 for $511,092. The contracting officer offered P.J. Dick a seven percent commission, plus the cost of bonds and insurance. The contracting officer stated that: "I am not offering any additional costs for delay as your company has failed to provide any supporting documentation that asbestos work caused a delay; the supplemental agreement does not guarantee that P.J. Dick will be compensated for the time they requested, at least not under the Eichleay[foot #] 2 form- ula." Appeal File, Exhibit 416. On April 25, 1989, P.J. Dick notified respondent that it had found additional asbestos, in the black floor tile, which was not covered by AS05. Appeal File, GSBCA 11772-73, Exhibit 409. On April 29, GSA gave P.J. Dick oral notice to proceed with removal of the black floor tile. Id., Exhibits 374-75. On June 20, 1989, GSA issued modification AC 17, without an extension of time to perform the work. Appeal File, GSBCA 11645-46, Exhibit 20. On June 30, 1989, P.J. Dick submitted its quotation twenty-one, for $1,229,494.15, including commission, for abatement of black floor tile, reserving "its rights to assert any and all claims for added costs or damages due to delays, suspension of work, working out of sequence, disruption, interferences . . . or other impact costs occurring as a result of the changed work. . . ." Appeal File, GSBCA 11772-73, Exhibit 406. On January 8, 1991, P.J. Dick submitted another quotation for $701,055, including commission, for asbestos abatement of black floor tile. In that quotation, P.J. Dick "reserve[d] its rights to assert any and all claims for added costs and/or other impact costs occurring as a result of the change[d] work. . . ." Appeal File, GSBCA 11772-73, Exhibit 388. P.J. Dick was careful to reserve claims for delays on other asbestos modifications, for example on RFP 84 (removal of asbes- tos contaminated tape) and RFP 157 (removal of asbestos from various areas). See Appeal File, GSBCA 11884-89, Exhibits 411, 413. Stipulated delay The parties have stipulated that: the delay to the project from the original completion date of February 5, 1991 through June 24, 1991 was the responsibility of the Government. ----------- FOOTNOTE BEGINS --------- 2[foot #] The term "Eichleay" was taken from the case in which it was adopted, Eichleay Corp., ASBCA 5183, 60-2 BCA 2688, _______________ reconsideration denied, 61-1 BCA 2894. ______________________ ----------- FOOTNOTE ENDS ----------- Stipulation (May 24, 1993). Respondent concedes that P.J. Dick is entitled to field office overhead for 140 days of delay. Transcript at 1751.[foot #] 3 While contesting P.J. Dick's entitle- ment to extended home office overhead for the delay associated with the 108 day time extension for asbestos abatement, GSA acknowledges that P.J. Dick and its subcontractors are entitled to such overhead for the thirty-two days of delay between May 24 and June 24, 1991, the date GSA maintains that the project was substantially complete. In this regard, GSA states: [P.J. Dick] is not entitled to recovery of Eichleay overhead for the first 108 days of the extended con- tract performance period. Consequently, it is entitled to only 32 days (140-108) of Eichleay overhead on behalf of itself and its subcontractors. Respondent's Post-Hearing Brief at 17. Consequence of delays The president of P.J. Dick testified that, as a result of the delays on the project, the contractor's home office staff spent an inordinate amount of time on administration of the contract and were not available to work on other projects. Transcript at 2285. The president could not identify a job on which the firm could not bid because of the delays; he testified that he "[could] identify projects that we needed to hire other people for that I expected to use [P.J. Dick's project manager and vice president] on." Id. at 2288. He further testified: On this project . . . an inordinate number of [requests for information] were generated. If a [request for information] was generated on the job that may have required an estimator to evaluate or another project manager or a secretary to spend time on, there's a cost associated with that. We had generated a tremendous amount of paper on this project alone. Id. at 2289. Substantial completion On June 24, 1991, GSA declared the project substantially complete as of that date. Respondent's Exhibit 40, Tab 17; Transcript at 1662. The contracting officer submitted a "pre- final" punch list and requested that P.J. Dick correct defects ----------- FOOTNOTE BEGINS --------- 3[foot #] The hearing on all dockets was held in three sessions: March of 1993, May of 1993, and February of 1994. Unless other- wise noted, transcript citations are to the session held in May of 1993. ----------- FOOTNOTE ENDS ----------- and omissions for final inspection by the Government on July 31. The contracting officer also requested that P.J. Dick submit all materials outlined in the specifications for final acceptance. Respondent's Exhibit 40, Tab 17. P.J. Dick's project manager informed the contracting officer that the sub-basement, the first floor kitchen area, the second floor and the fourth floor were substantially complete. Respon- dent's Exhibit 40, Tab 16. He reported that the basement level and track level[foot #] 4 were ninety percent complete. Id. The remaining areas of the first floor had been completed and accepted in October of 1990, when the Department of Housing and Urban Development moved from the fourth to the first floor. Transcript, March Session at 300; Transcript at 1425, 1665. The major space on the third floor--the FBI space--was occupied in May of 1991. Transcript at 1425. As of June 24, the total value of the project, deducting the value of the work terminated for convenience, was $17,635,000. Transcript at 1611. While estimates vary, the highest value of the work done past substantial completion was $732,679. Appel- lant's Exhibit 76; Transcript at 1621-22. The value of the work performed after June 24, 1991, was 4.15% of the total. Tran- script at 1621.[foot #] 5 Elevator twenty-five There are, according to the testimony, "twenty-seven or twenty-eight" elevators in the building. Transcript at 1681. Elevator twenty-five goes from the sub-basement to the tenth floor. Id. Elevators one through four and seven through twelve stop one or two floors below the top floor. Id. at 1546. The contracting officer considered elevator twenty-five important; he testified that "you could get by without the use of the elevator. It would be difficult." Id. at 1681. The work on the critical path after June 24, 1991, was installation of elevator twenty- five. Appellant's Exhibit 63; Transcript at 1471, 1697-98. Before refurbishment under the contract, elevator twenty- five was designed to be a freight elevator with vertical lift bi- parting doors. The contract work called for replacement of the doors with horizontal sliding doors; installation of a new cab, controllers, fixtures in the hallway and the cab, a new leveling ----------- FOOTNOTE BEGINS --------- 4[foot #] The track level was the level where mail trains entered the building. 5[foot #] P.J. Dick's project manager estimated that the work remaining represented eight percent of the total contract work. Transcript at 1614-15. That estimate, however, includes the value of defects and omissions work, which is the contractor's responsibility. Id. ___ ----------- FOOTNOTE ENDS ----------- system in the hoistway; and bringing the car up to current code. Transcript at 1532. After lengthy delays, modernization work on the elevator commenced on January 21, 1991, and proceeded through July 27, 1991. Appellant's Exhibit 63; Transcript at 1548. Problems arose in the installation. The horizontal doors on the new cab were forty-eight inches wide; the elevator door frame was seventy-eight inches wide, leaving a thirty inch gap. Transcript at 1553. GSA issued RFP 210 for installation of a facade to close the gap. Id. Additionally, during testing, the elevator's generator, which was not to be refurbished under the contract, was running hot and causing leveling problems with the cab.[foot #] 6 P.J. Dick had to refurbish the generator.- Appellant's Exhibit 68; Transcript at 1558, 1661. It took until August 15 to correct these problems, at which point GSA accepted the elevator. Appellant's Exhibit 63. After accep- tance, the elevator still would not work. P.J. Dick's elevator installer had installed an open loop electronic control system in the elevator, which would not adequately account for both the speed of the car and the rise of the building. After the defect was discovered, a closed loop electronic control system was installed. Transcript at 1563. The work to install the closed loop electronic control system took until about September 20. Appellant's Exhibit 64. P.J. Dick's claim P.J. Dick filed a claim with GSA requesting on behalf of itself and its subcontractors extended overhead for 213 days of delay from the original completion date of February 5, 1991 through September 6, 1991, the date P.J. Dick contends is the date of substantial completion. Appeal File, Exhibit 320, Chart N. The delay includes the 108 days GSA had granted P.J. Dick in AS05 and 105 additional days of delay P.J. Dick contends it took to complete the project. Id. P.J. Dick sought costs as follows: Name Extended Labor Totals Overhead Material Costs Escalation P.J. Dick $323,734.44 Sherry & O'Leary 103,246.44 $854.02 Ferry Electric 300,211.41 3,402.16 Easley & Rivers 93,922.33 Grinnell 32,013.90 Artistic Tile 4,273.20 Patrinos Painting 5,681.55 ----------- FOOTNOTE BEGINS --------- 6[foot #] P.J. Dick's elevator installer explained that a malfunctioning generator would decrease the voltage to the elevator motor; the decrease affects the elevator cab's traveling speed and its ability to level with the floor. Transcript at 1559. ----------- FOOTNOTE ENDS ----------- West Mifflin 15,975.00 Subtotal $879,058.27 $4,256.18 $883,314.45 Fee @ 10% 88,331.45 Subtotal 971,645.90 B&O, Liabil. Insurance, Bond @1.92% 18,665.60 Grand Total $990,301.50 Appeal File, Exhibit 320 at 32. The contracting officer failed to issue a decision on the claim within the required time frame as extended by the contracting officer. Complaint 25; Answer Admitting Same. An appeal was filed at this Board from the deemed denial. Quantum Stipulated rates The parties have stipulated to the daily rates for home office overhead. They are: P.J. Dick $666.00 Ferry Electric 987.03 Sherry & O'Leary 217.47 Easley & Rivers 395.76 Grinnell 87.57 T.D. Patrinos 54.11 West Mifflin 75.00 Artistic Tile 23.75 The parties have stipulated to the daily rates for field office overhead. They are: P.J. Dick $790.00 Ferry Electric 387.00 Sherry & O'Leary 218.30 Easley & Rivers 395.76 Grinnell 56.00 Stipulation (May 24, 1993). The parties disagree on whether home office and field overhead were included in payments for change orders. The Government has calculated that on change orders, P.J. Dick and its subcontractors recovered overhead and commission as follows: Party Overhead Profit or Foreman Labor P.J. Dick $8,639.97 $207,686.10 Ferry Electric 72,470.76 25,158.86 Sherry & O'Leary 17,898.77 28,175.68 Easley & Rivers 20,138.70 --.-- Grinnell 9,880.73 10,093.50 Appeal File, Exhibit 345. This calculation does not identify whether the overhead allegedly paid through the change orders included extended overhead for delays, or whether any part of the commission represents overhead, or how any overhead is divided into field office or home office overhead. Id. The contracting officer who performed the calculations admitted at the hearing on the merits that for the larger asbestos change orders, GSA treated commission as profit. Transcript, February Session, at 21-22. He also admitted that "a good number" of the change orders were negotiated on a lump sum basis. Id. at 22. Discussion Extended home office overhead Recently, the United States Court of Appeals for the Federal Circuit summarized previous case law on the elements required to prove entitlement to extended home office overhead, which is to be negotiated pursuant to the Eichleay formula: To establish entitlement to costs under the Eichleay formula, we have held that a contractor must show: (1) a government-imposed delay; (2) that the contractor was on "standby"; and (3) that the contractor was unable to take on other work. . . . However, we have also recog- nized the impracticality of a contractor obtaining replacement work or reducing home office overhead when it must "standby" during an "uncertain" period of government-imposed delay. . . . Therefore, when a contractor can show that the government required a contractor to remain on "standby" and the government- imposed delay was "uncertain," the contractor has established a prima facie case of entitlement to Eich- leay formula damages. The burden then shifts to the government to present rebuttal evidence or argument showing that the contractor did not suffer or should not have suffered any loss because it was able to either reduce its overhead or take on other work during the delay. Mech-Con Corp. v. West, 61 F.3d 883, 886 (Fed. Cir. 1995) (cita- tions omitted). Earlier, the Court clarified the meaning of the "standby" requirement: Properly understood, the "standby" test focuses not on the idleness of the contractor's work force (either assigned to the contract or total work force), but on suspension of work on the contract. . . . . In this case the Board focused primarily on the fact that all the workers assigned to this particular con- tract were reassigned or let go, not on the suspension or delay of work on the contract. Such a focus confus- es the issue of direct costs caused by idle workers or equipment at the site--not claimed here--with indirect costs of home office overhead recoverable under Eich- leay--all that is claimed here. We repeat that appli- cation of the Eichleay formula does not require that the contractor's work force be idle. . . . It simply requires that overhead be unabsorbed because perfor- mance of the contract has been suspended or signifi- cantly interrupted and that additional contracts are unavailable during the delay when payment for the suspended contract activity would have supported such overhead. Interstate General Government Contractors v. West, 12 F.3d 1053, 1057 (Fed. Cir. 1993). In a footnote, the Court emphasized that the stand-by and suspension requirements "clearly refer to standing by in the sense that no work is being performed on the contract, not that there must be workers physically standing by idly." Id. n. 5. GSA concedes that it delayed P.J. Dick by 140 days, but argues that it owes P.J. Dick, and its subcontractors, Eichleay overhead for only thirty-two of those days. GSA argues that there was "nothing sudden, sporadic or uncertain" about the delay of 108 days; consequently, P.J. Dick is not entitled to Eichleay overhead for that period of delay under the Federal Circuit's case law. Respondent's Post-Hearing Brief at 14-15. Respon- dent's argument is correct. P.J. Dick, furthermore, has not shown that "overhead [was] unabsorbed because performance of the contract [had] been suspended or significantly interrupted." Interstate, 12 F.3d at 1057; Jay P. Altmayer, et al. v. General Services Administration, GSBCA 12639, 95-1 BCA 27,515, at 137,123, appeal docketed, No. 95-1223 (Fed. Cir. Mar. 2, 1995). P.J. Dick's president testified that he could not identify a job on which P.J. Dick could not bid because of the additional asbestos or the delays caused by that work. Substantial completion GSA concedes that it owes P.J. Dick and its subcontractors extended field office overhead for the 140 days from February 5 through June 24, 1991. P.J. Dick argues that GSA owes it Eich- leay and extended field overhead for the seventy-four day period from June 24 through September 6, 1991, because the project was not substantially complete until the later date. GSA argues that the project was substantially complete when the agency declared it complete on June 24, and that GSA owes no delay damages after that date. A construction project is substantially complete when the premises may be occupied, used or enjoyed for the purposes for which they were intended. Thermodyne Contractors Inc. v. General Services Administration, GSBCA 12510, 94-3 BCA 27,071, at 134,909; Electronic & Missile Facilities, GSBCA 2787, 71-1 BCA 8785, at 40,813. The percentage of completion does not matter so much as whether the project is operable. Jorge Construction Co., GSBCA 5194, 80-2 BCA 14,520, at 71,562; Marco Construction Inc., IBCA 1026, 74-2 BCA 10,864. Since completion of elevator twenty-five was the critical activity for the delay analysis, both parties focus on that activity in arguing for their respective dates of substantial completion. We conclude that elevator twenty-five did not control the substantial completion of the project. Other than elevator twenty-five, there are twenty-six or twenty-seven elevators in the building, serving the first eight floors. While only elevator twenty-five served every floor in the building, the tenants of the renovated first through the fourth floors would not need elevator twenty-five for convenient access to their floors. The only inconvenience was that the occupants of the tenth floor would have to take other elevators to the eighth floor and walk up two flights of stairs. We cannot conclude that inconvenience made the premises unfit for their intended purpos- es. With regard to the renovated space, as of June 24, 1991, the first floor had been accepted; the FBI, the major tenant, had moved to the third floor; the fourth floor work not terminated for convenience and the basement and track areas were ninety percent complete. The amount of work remaining after substantial completion was 4.15% of the total work; that is, 95.85% had been completed. These facts taken together lead us to conclude that the premises were fit for their intended use as of June 24. GSA argues that P.J. Dick is not entitled to delay damages for the period after substantial completion. It relies on cases such as R.J. Crowley v. General Services Administration, GSBCA 11080(9521)-REIN, 92-1 BCA 24,499, maintaining that "logically, there can have been no delay after that date." Respondent's Post-Hearing Brief at 16. R.J. Crowley holds that the Government cannot assess liquidated damages after the date of substantial completion. P.J. Dick argues that this Board and other boards have awarded delay damages for delay after substantial comple- tion. 92-1 BCA 122,275. P.J. Dick points to Stephenson Associates, Inc., GSBCA 6573, et al., 86-3 BCA 19,071, and Vienna/Vienna, PSBCA 2505, et al., 92-2 BCA 24,767, as exam- ples. The Board in Vienna/Vienna, merely denied the Government's motion for summary relief because significant facts were in dispute. 92-2 BCA at 123,573. Stephenson is unique on its facts. There, substantial completion of most of the work took place on March 31, 1979, and of all the other work by July 19, 1979. Stephenson, 86-3 BCA at 96,325. Nonetheless, contract completion did not occur until December 31, 1981, a period of 896 days or 2.45 years from July 19. Id. The Board held that under these egregious facts, it would award breach of contract damages calculated in accordance with the Eichleay formula: We agree that there was a delay through early 1980 of the sort that will support an Eichleay calculation. Beyond that point, however, we are concerned with a breach of contract not so much in the nature of delay but in the form of an interference with appellant's capacity to perform other work. The financial conse- quences of this breach are sufficiently similar to those of a true delay that we can analyze appellant's damages for it in the same way, even though the under- lying cause is different. Id. at 96,346. We do not view Stephenson, therefore, as creating a bright line rule that delayed contractors are always entitled to damages for alleged delays beyond substantial completion. A later case from this Board, EMS, Inc., GSBCA 9588, et al., 90-2 BCA 22,876, is typical. There, we refused to award Eichleay overhead to a contractor who was seeking such recovery for delay after substantial completion, given the amount of work to be done--one percent of the remaining contract billings. Id. at 114,890. We noted there that the contractor had not estab- lished that the delays beyond substantial completion hindered its ability to increase its bonding and secure additional work. This case is closer to EMS than it is to Stephenson. With regard to ability to absorb overhead at the end of the contract period, we noted in EMS that as "work is performed under a contract, bonding is generally freed up." EMS, 90-2 BCA at 114,891. P.J. Dick has not established that during the period of the elevator changes, payment for the contract work was suspended such that P.J. Dick was unable to absorb its overhead or that the timing of those changes altered P.J. Dick's bonding capacity, its ability to obtain other work or its ability to absorb in other ways its home office overhead.[foot #] 7 With regard to field overhead generated by the change orders on the eleva- tors: [W]hen the Government adds work and extends the perfor- mance period for that reason . . . appellant's continu- ous work, as augmented, generated a direct cost base to permit the absorption of overhead by the application of the overhead markups. Appellant's field overhead costs associated with original contract work were paid in accordance with appellant's bid and those costs associ- ated with changed work was paid through a 4.6 percent ----------- FOOTNOTE BEGINS --------- 7[foot #] In any event, the delay past August 15, 1991, to the elevators was the fault of P.J. Dick. P.J. Dick's elevator installer had installed an unsuitable electronic control system which took time to correct. ----------- FOOTNOTE ENDS ----------- markup. Thus appellant has been compensated for all field overhead for the entire period of the contract. Community Heating & Plumbing Inc., ASBCA 37981, et al., 92-2 BCA 24,870, at 124,073, aff'd, 987 F.2d 1575, 1582 (Fed. Cir. 1993). P.J. Dick is not entitled to additional field overhead over and above what was paid as a mark-up under the change order. Quantum GSA concedes that P.J. Dick and its subcontractors are owed thirty-two days of extended home office overhead. The amount at the stipulated rates is as follows: P.J. Dick $666.00 x32 $21,312.00 Ferry Electric 987.03 x32 31,584.96 Sherry & O'Leary 217.47 x32 6,959.04 Easley & Rivers 395.76 x32 12,664.32 Grinnell 87.57 x32 2,802.24 T.D. Patrinos 54.11 x32 1,731.52 West Mifflin 75.00 x32 2,400.00 Artistic Tile 23.75 x32 760.00 Total $80,214.08 The parties agree that P.J. Dick and its subcontractors are owed 140 days of extended field overhead. The amount at the stipulat- ed rates is as follows: P.J. Dick $790.00 x140 $110,600.00 Ferry Electric 387.00 x140 54,180.00 Sherry & O'Leary 218.30 x140 30,562.00 Easley & Rivers 395.76 x140 55,406.40 Grinnell 56.00 x140 7,840.00 Total $258,588.40 If there is no credit for extended home office overhead or extended field office overhead already paid, P.J. Dick is enti- tled to $338,802.48 as an equitable adjustment for Eichleay overhead and the cost of its direct field overhead. GSA, howev- er, argues that it deserves a credit for extended overhead already paid under existing change orders. The agency relies on such cases as Aydin Corp. (West), ASBCA 42760, 94-2 BCA 26,899, aff'd in part sub nom. Aydin Corp. (West) v. Widnall, 61 F.3d 1571 (Fed. Cir. 1995). In Aydin the board held: The Government's position [on the credit issue], on the other hand, is supported by a number of board and court decisions. In R.G. Beer Corp., ENGBCA No. 4885, 86-3 BCA 19,012, the Corps of Engineers Board stated: "Where the contractor is paid a percentage home office overhead markup with respect to direct costs incurred during the same period over which the Eichleay award has been com- puted, the fixed expense portion of that mark-up must be subtracted from the amount computed pursuant to Eichleay. [Citations omitted.] Otherwise, the same time-based, fixed expenses in home office overhead will be recovered twice, once through the Eichleay award and once as a portion of normal over- head allocable to the work." Id. at 96,031-32; see also Excavation Const. Inc., ENGBCA No. 3851, 84-3 BCA 17,646 (transit authority entitled to credit against Eichleay award for overhead paid in undisputed direct costs of a change); Savoy Const. Co., Inc., ASBCA Nos. 21218 et al., 85-2 BCA 18,073; Sovereign Const. Co., Ltd., ASBCA No. 17792, 75-1 BCA 11,251 at 53,610-11 (home office overhead award for periods of delay reduced by amount of over- head payments for change order work); Luria Brothers & Co., Inc. v. United States, 369 F.2d 701, 711 (Ct. Cl. 1967) (home office overhead previously received by change orders deducted from home office overhead award); J.D. Hedin Const. Co. v. United States, 347 F.2d 235, 259 (Ct. Cl. 1965) (Court deducted from contractor's overhead recovery all overhead received through change orders). Aydin, 94-2 BCA at 133,944. The board's ruling in this regard, however, was based on the specific finding that the "amounts identified . . . were for the purpose of compensating Aydin for unabsorbed overhead costs." Id. In arriving at what it feels is the proper offset from the equitable adjustment to which P.J. Dick is entitled, GSA merely subtracts all calculated commission and overhead from existing change orders. Respondent's Post-Hearing Brief at 18-19. This is redolent of the "total cost" approach contractors often seek to use in proving quantum, and is unacceptable. It is true that P.J. Dick, as appellant, has the burden of showing the fundamen- tal facts of causation, liability and injury. Vehicle Mainte- nance Services v. General Services Administration, GSBCA 11663, 94-2 BCA 26,893. Nevertheless where, as here, the appellant has shown, or the Government stipulates to, those elements, if the Government seeks a credit, we believe it must do more than assume that all commission and overhead granted on paid change orders had a relationship to the delay, rather than to the cost of performing the changes themselves. GSA has not shown that the other delaying factors, such as the differing site conditions encountered, P.J. Dick's lack of access to the fourth floor to make riser tie-ins, or the inordi- nate amount of time GSA spent in responding to P.J. Dick's requests for information, were fully compensated by change orders. The evidence points in the contrary direction. For the largest change--asbestos--P.J. Dick was careful to reserve its delay claims; in offering P.J. Dick a negotiated amount plus seven percent commission for AS05, the largest asbestos change modification, the contracting officer recognized that the amount offered did not cover delay claims. Furthermore, GSA's contract- ing officer admitted that a good number of change orders were negotiated and paid on a lump sum basis. When change orders are negotiated on that basis, a determination of the cost allocation between prime and subcontractors and a determination of what elements of costs were covered would be rank speculation. GSA has not established that it is entitled to the credit it seeks. Decision The appeal is GRANTED IN PART. P.J. Dick is awarded $338,802.48 as an equitable adjustment for its delay claim, plus interest as allowed by the Contract Disputes Act of 1978. ________________________________ ANTHONY S. BORWICK Board Judge We concur: _____________________________ _________________________________ STEPHEN M. DANIELS EDWIN B. NEILL Board Judge Board Judge