Case: 23-2229 Document: 54 Page: 1 Filed: 03/13/2025

NOTE: This disposition is nonprecedential.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 ______________________

THOMAS HENDERSON DUPREE, JR., Gibson Dunn & Crutcher, LLP, Washington, DC, argued for appellant. Also represented by REGINALD JONES, DIANA LYN CURTIS SHUTZER, NICHOLAS SOLOSKY, Fox Rothschild LLP, Wash- ington, DC.

BRYAN MICHAEL BYRD, Commercial Litigation Branch, Civil Division, United States Department of Justice, Case: 23-2229 Document: 54 Page: 2 Filed: 03/13/2025

2 BALFOUR BEATTY CONSTRUCTION, LLC v. GSA

Washington, DC, argued for appellee. Also represented by BRIAN M. BOYNTON, PATRICIA M. MCCARTHY, CORINNE ANNE NIOSI. ______________________

Before REYNA, 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: Case: 23-2229 Document: 54 Page: 3 Filed: 03/13/2025

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, Case: 23-2229 Document: 54 Page: 4 Filed: 03/13/2025

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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. Case: 23-2229 Document: 54 Page: 5 Filed: 03/13/2025

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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 Case: 23-2229 Document: 54 Page: 6 Filed: 03/13/2025

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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 COSTS Costs to appellant Balfour.