L.K. Comstock & Co. v. Becon Construction Co. (932 F. Supp. 906, 1993)

United States District Court for the Eastern District of Kentucky 1993-01-27

Citations

Full opinion text

ORDER

WILHOIT, District Judge.

This matter is before the Court on the Special Master’s Proposed Findings of Fact and Conclusions of Law, objections thereto, a motion by defendant for action upon the proposed findings and conclusions, and a motion by plaintiff to stay action upon the proposed findings and conclusions. The Court has thoroughly reviewed the record and does not find any of the Special Master’s findings to be clearly erroneous. Fed. R.Civ.P. 53(e)(2). Further, the Court is in agreement with the well-reasoned conclusions reached by the Special Master. Thus, the Proposed Findings of Fact and Conclusions of Law will be adopted as, and for the opinion of the Court; the objections will be overruled; the motion for action granted; and the motion to stay action denied. In accord with the conclusions reached by the Special Master, the claims contained in count 17 will be dismissed, and plaintiff shall take nothing thereby.

In its opposition to the motion for action upon the proposed findings and conclusions, plaintiff argues that some of the findings made by the Special Master bear directly upon counts 1-16 of the complaint, which are still pending before this Court. Adoption of the proposed findings and conclusions, says plaintiff, would amount to a deprivation of its right to a trial by jury on counts 1-16.

This matter was referred to the Special Master for the sole purpose of preparing proposed findings and conclusions as to count 17. The Special Master has performed this task admirably, and his work, as adopted by this Court, is particularly related only to the claims raised in count 17. Thus, adoption of the findings and conclusions will not impair either party’s right to a trial by jury on counts 1-16. The Court would note that in the Special Master’s proposed findings and conclusions, as in any other Court order or opinion, findings not essential to the ultimate conclusion are obiter dicta.

Also pending in this case is a motion by plaintiff to refer the balance of the claims to the Special Master. Defendant has filed a response and has no objection to referring counts 7 and 8 to the Special Master, but objects to the reference of all the remaining claims. Plaintiff generally opposes any further splitting of its complaint.

Reference of jury matters to a Special Master differs significantly from reference of nonjury matters. In nonjury matters, if the Court accepts the Special Master’s proposed findings and conclusions, they become final. Eastern Fireproofing Co. v. United States Gypsum Co., 50 F.R.D. 140, 142 (D.Mass.1970). Not so for jury issues. Acceptance of a Special Master’s proposed findings and conclusions in a jury matter has no finality; “the issues are referred merely for purposes of clarification before presentation to the jury which remains the ultimate arbiter of the facts.” Id.; Fed.R.Civ.P. 53(e)(3). Upon submission of the report to the jury, either party must be given the opportunity to introduce evidence contrary to the findings of the Special Master. Crateo, Inc. v. Intermark, Inc., 536 F.2d 862, 868 (9th Cir.1976). The jury may accept or reject the findings of the Special Master as it sees fit, and this process preserves the right of'a jury trial as guaranteed by the Seventh Amendment. 5A James Moore et al., Moore’s Federal Practice, ¶ 53.14[3] (2d ed. 1992); citing Ex parte Peterson, 253 U.S. 300, 40 S.Ct. 543, 64 L.Ed. 919 (1920). The findings of a Special Master in regards to a jury issue can only become binding if the parties stipulate as to the finality of the findings, and thereby waive their right to trial by jury. Fed.R.Civ.P. 53(e)(4). In light of these rules relating to procedure before a Special Master, the Court is of the opinion that, while reference of the remaining jury issues to the Special Master would undoubtedly save time at the trial, the savings would not be nearly as great as it was for reference of the nonjury issues contained in count 17.

The Court is of the opinion, however, that a trial of counts 7 and 8, under which the greatest amount of damages are claimed, could facilitate a more expeditious resolution to this case. Thus, the parties shall submit letters for the Court’s in camera consideration informing the Court of each side’s estimate as to the length of a trial on counts 7 and 8. Also, the parties should state whether they have considered submission of all remaining claims to binding arbitration before the Special Master pursuant to Rule 53(e)(4), and their reasons for rejecting this option. These letters shall be sent within ten (10) days from the date of this order. The pending motion by plaintiff to refer the remaining claims to the Special Master shall be held in abeyance pending receipt of the letters.

Accordingly,

IT IS THEREFORE ORDERED AND ADJUDGED:

(1) That the Special Master’s Proposed Findings of Fact and Conclusions of Law are adopted as and for the opinion of the Court;

(2) That the objections to the Proposed Findings of Fact and Conclusions of Law are OVERRULED;

(3) That the motion of plaintiff to stay action upon the Proposed Findings of Fact and Conclusions of Law is DENIED;

(4) That the motion of defendant for action on the Proposed Findings of Fact and Conclusion of Law is GRANTED;

(5) That in accord with the Special Master’s conclusions, count 17 of the plaintiffs complaint is DISMISSED, and plaintiff shall take nothing thereby;

(6) That within ten (10) days from the date of this order, the parties shall submit letters for the Court’s in camera consideration in accord with the directions set out in this order;

(7) That the motion of plaintiff to refer the balance of the claims to the Special Master is HELD IN ABEYANCE pending receipt of the letters.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

THOMAS J. STIPANOWICH, Special Master.

On February 16, 1989, Plaintiff L.K. Com-stock & Company, Inc. (“Comstock”) commenced this action against Defendant Becon Construction Company (“Becon”). Com-stock filed a seventeen-count complaint against Becon for certain claims for additional compensation arising from labor, material, and services provided by Comstock to Becon in connection with the Toyota Automotive Manufacturing Facility in Georgetown, Kentucky (the “Project”). The District Court severed Count 17 of Comstock’s Complaint concerning Comstock’s claims that the changes in the work to be performed by Comstock were so extensive as to constitute an abandonment of the contract or a “cardinal change.” The hearing on Count 17 was referred to Thomas J. Stipanowich, Professor of Law at the University of Kentucky College of Law, as Special Master pursuant to Rule 53 of the Federal Rules of Civil Procedure. The hearing began on December 9, 1991, and continued for a total of fourteen trial days. Both parties subsequently submitted extensive trial “briefs.”

For the reasons stated below, the Special Master concludes that Comstock did not sustain the burden of demonstrating an abandonment of the contract or a cardinal change.

INDEX TO FINDINGS AND CONCLUSIONS

I. Findings of Fact...............................................'............911

A. Project Background ...................................................911

B. Pre-Bid Events.......................................................912

C. Bidding, Negotiations, and Letter of Intent...............................912

D. Incomplete Drawings..................................................913

E. Incomplete Vendor Data...............................................914

F. Requests for Information; Coordination Problems.........................915

G. Denial of Time Extensions..............................................919

H. Volume of Changes....................................................921

I. Early Performance, Administration and Scheduling Problems...............922

J. Withholding of Payment and Comstock’s “Impact” Claim...................926

K. Continuing Contract Negotiations and Signing of Subcontract...............930

L. Proof of Costs ........................................................930

II. Conclusions of Law........................................................931

A. Introduction..........................................................931

B. Contract Abandonment ................................................931

Basic Principles Under Kentucky Law.................................931

Abandonment of a Construction Contract..............................932

Persuasive Authority................................................933

Conclusion.........................................................935

C. Cardinal Change......................................................936

Basic Principles....................................................936

Nature of Inquiry...................................................939

Effect of Modifications; Continued Performance........................941

Other Limits on Cardinal Change.....................................943

“Engrafting” Cardinal Change onto Kentucky Law?.....................944

Conclusion..........................................................946

III. Final Conclusion...........................................................947

I. FINDINGS OF FACT

A Project Background

1. This dispute arose out of the construction of an automotive assembly plant in Georgetown, Kentucky, for Toyota Motor Manufacturing, U.S.A., Inc. (“Toyota”). Toyota contracted with Ohbayashi Corporation (“Ohbayashi”) for construction management services on the Project. Beneath Ohbayashi were nine general contractors, and beneath them over 200 subcontractors and more than 400 sub-subcontractors. Giffels Associates, Inc. (“Giffels”) was the engineer for the Project.

2. Becon was the general contractor for the plant’s utility area, which was designed to supply steam, electricity, and other essentials for plant operation. Becon subcontracted with L.K. Comstock to perform the electrical and mechanical work for the utility area, which comprised approximately seventy percent of Becon’s work. (R9 at 136-37) . Most of Comstock’s work involved the utility building (Area 500), but Comstock also performed work on the trestle (Area 501), the waste water treatment building (Area 502), the water pump house building (Area 503), the electrical switch gear building (Area 504), the diesel fuel pump house building (Area 505); and the liquid tank farm area.

3. Both Becon and Comstock are large, sophisticated contractors. Becon is a wholly owned operating unit of the Bechtel Company. Comstock’s annual revenue since 1984 and the present ranged between $300,000,000 and $500,000,000. (R4 at 52). The evidence indicates that their dealings were at arm’s length.

4. Although the parties’ agreement included both mechanical and electrical work, their significant differences centered on mechanical work. Comstock’s twin theories, contract abandonment and cardinal change, are built upon numerous incidents of a yearlong course of performance.

5. Comstock claims it experienced a substantial increase in its supervisory personnel because of the significant amount of change work it performed and Becon’s unwillingness to grant time extensions. (R4 at 5-6; R5 at 121-22). It also alleges that the magnitude of changes had a substantial adverse effect on its productivity and ability to effectively plan, manage and perform the work.

6. Comstock’s base subcontract amount was approximately $14,700,000. It agreed to subcontract amendments with a value of approximately $7,600,000. According to evidence produced at trial, its total cost of performance, including overhead and profit, was $26,895,650, or $5,487,241 more than the total sum received from Becon. (P.E.1990). Comstock seeks recovery in quantum meruit for its total costs, which it claims represent the reasonable value of the labor, material, and services it provided.

B. Pre-Bid Events

7. In the spring and summer of 1986, Becon and Ohbayashi representatives met to negotiate the terms of Becon’s obligations as general contractor for Area 500. Becon had prepared its initial “Guaranteed Not to Exceed” bid, based on “ideal” project engineering and procurement information, in March 1986. (P.E. 1206). Work began before a formal written agreement was executed. On October 21, 1986, Gary Bechtel, on behalf of Becon, submitted a claim assessment in response to Ohbayashi’s request to Becon to quantify changes it made to its original bid. (P.E. 1212). Foreshadowing problems that Comstock would later encounter on the job, Becon set as one of the assessment objectives to evaluate the effect of: increased scope, overall project acceleration, acceleration of individual scheduled activities, late engineering, and stacking of work. (Id.) Ohbayashi and Becon executed an agreement for Be-con’s services as general contractor in Area 500, etc., on July 29, 1987. (P.E. 1245).

C. Bidding, Negotiations, and Letter of Intent

8. Becon solicited bids for the mechanical and electrical work in the utility area in late 1986. After conducting pre-bid meetings with potential mechanical and electrical bidders, Becon received bids on February 17, 1987. Comstock submitted the low bid for the mechanical work and, with a $284,085 deduct which Comstock offered if it was awarded both the electrical and mechanical packages, Comstock’s electrical quotation was also the low bid received on the Project. (P.E. 1224; D.E. 28).

9. After conducting negotiations concerning various qualifications to Comstock’s bid and certain modifications in the work proposed by Becon, (R10 at 90, 174-176), Becon and Comstock entered into a subcontract agreement signified by a letter of intent in late March, 1987. (D.E.29). The letter, which was dated March 20, 1987, indicated that “the final Subcontract shall include all pertinent changes and additions based upon negotiations through this date.” (Id.) It was signed by Comstock’s authorized representative, Larry Hafling, on March 31, with the notation that the agreement was “[s]ubject to scope clarifications made prior to bid, with bid, and per subsequent negotiations.” Comstock’s piping manager, John Mayne, Jr., testified that the effective date of the agreement was March 20, 1987. (R1 at 72-76). Becon’s project engineer, Paul Sheridan, also acknowledged that the agreement was effective as of March 20, 1987. (R10 at 82; Rll at 143—44). Moreover, Becon’s Dale Eichhorst stated that during construction, “we were working as if the contract had been signed, we were working off the letter of intent.” (R8 at 122).

10. The letter indicated that the value of the subcontract “will be $15,734,494.00.” (P.E.1956). It also confirmed Becon’s March 18, 1987 verbal award and notice to proceed with design engineering and mobilization for the subcontract. Finally, it provided that a formal subcontract would be prepared and sent to Comstock for execution “shortly.” (Mi-

ll. During performance of the job, the parties continued to discuss finalization of the subcontract and negotiated certain points. (See D.E. B; R7 at 68-79). It was not until-February 26, 1988, when the contract was nearly substantially complete, that the parties signed a subcontract. (D.E.l). This subject is addressed below.

D. Incomplete Drawings

12. The design documents provided to' Comstock for the performance of the work were incomplete and lacked certain dimensions that were necessary to precisely locate some of the mechanical work.

13. Comstock reasonably anticipated that it would receive fully-dimensioned orthographic drawings that were issued or released for construction. (R1 at 85-86; R13 at 164). Becon’s internal documents indicate that Becon itself anticipated that issued-for-construction drawings would be prepared by Giffels, the Project engineer (P.E. 1212 at 6), and expressed concern that its subcontractors would proceed without issued-for construction drawings. (P.E. 1210). The diary of Becon’s project engineer, Paul Sheridan, indicates that on March 16, 1987, however, Ohbayashi and Giffels informed Becon that it was to proceed with the existing design documents and “hope for the best.” (P.E.2011-9-10; R12 at 139^40).

14. On March 27, 1987, at the last meeting prior to Comstock’s signing of the letter of intent, Becon informed Comstock representatives that there would be no issued-for-construction drawings and that the bid drawings were to be used for construction. (R3 at 110-111; P.E. 94).

15. The problem, according to Comstock, was that the lack of fully-dimensioned drawings forced Comstock to resort to a different, more expensive method of pipe fabrication than originally contemplated. (R1 at 129-30). Fully-dimensioned drawings would have enabled Comstock to fabricate mechanical piping in the largest components possible and thereby reduce the number of field welds and other associated field work. (Id., R5 at 79, 113-118). Comstock’s practice was to fabricate pipe in sections that would fit into a 40 ft. by 10 ft. by 10 ft. box that could be transported by an interstate carrier without special permits for trucking the fabricated pipe. (R1 at 132).

16. Because Comstock never received fully-dimensioned orthographic drawings, Com-stock was required to add additional field welds and trim allowances so that the pipe could be cut to the required dimension once precise dimensions were obtained in the field. The result, according to Comstock’s Mechanical’s president, Cleve Whitener, and mechanical project manager John Mayne, was considerable extra work for pipefitters in the field. (R13 at 170-71; R5 at 116). According to Mayne, this resulted in an increase of approximately 16 to 17 percent in direct craft labor to install the pipe. (R1 at 134-36; P.E.1980). Curiously, Comstock never submitted a change order proposal for this work. (R5 at 72).

17. It is clear that Comstock personnel were aware at the time they signed the letter of intent that they would not have the benefit of fully dimensioned issued-for-construction drawings in performing subcontract work. According to Paul Makris .of Comstock, who was present at the March 27 meeting, Com-stock personnel later discussed among themselves the additional engineering that was made necessary by the lack of completely dimensioned drawings. (R6 at 95-96). Comstock President Cleve Whitener, who was not present at the meeting, testified that under such circumstances Comstock had to consider the additional “cost of preparing [isometric] drawings using vendor data and undimensioned drawings.” (R14 at 84r-85). Although Comstock may have told Becon “we have to have more than this,” (R6 at 96), at the March 27 meeting, at no time prior to signing the letter of intent did Comstock object formally, (RIO at 87; R7 at 65), nor did it seek to modify its price quote to include an additional trim allowance. (R14 at 82, 88-89). In his deposition testimony, Be-eon’s Paul Sheridan indicated that Com-stock’s John Mayne complained regarding the absence of issued for construction drawings; however, Sheridan testified that this occurred after the March 27 meeting. (Rll at 147-48; see also Mayne testimony at R1 at 105-06). Arguably, Comstock considered a strongly worded complaint unnecessary in light of the fact that the letter of intent fixed the parties’ contractual obligations as of March 20, 1987—several days prior to the discussion of the drawings. Therefore, Com-stock may (assuming an appropriate reservation of rights) be entitled to an equitable adjustment to its contract price for the extra work performed in the field. Insofar as Comstock was aware of this change of plan at the time it entered into the contract, however, the issue is not supportive of Comstock’s Count 17 theories of abandonment and cardinal change. (See R6 at 95-96). However, Comstock has explained that the problem of incomplete drawings was exacerbated by delays in receiving some vendor data—an unanticipated occurrence. (See below, Section I.E.).

Sepias. 18. Comstock also asserts that its performance was hurt by Becon’s failure to provide clear sepias. (R1 at 111-127). Com-stock mechanical project manager John Mayne, Jr. notified Becon of a number of non-reproducible sepias on March 31, 1987. (P.E. 1229). Becon’s Dale Eichhorst acknowledged that as late as October 15, 1987, Becon was requesting that Ohbayashi and Giffels provide clear reproducible sepias. (R9 at 81). Comstock wrote several letters in early 1988 asking that it receive better quality sepias to prepare as-built drawings showing the final state of the work. (P.E. 592; P.E. 590; P.E. 597). It does not appear that unclear sepias prevented work from being done, but according to Mayne, they made the job more difficult (R1 at 126). Com-stock’s electrical project manager, Gerald Evans, indicated that poor sepias required Comstock to seek some clarifications, but that the sepias were not a serious problem for the electrical work, and that only about ten to fifteen percent of the sepias were so bad as to require another copy. (R4 at 66, 104-06). Mr. Eichhorst recalled requests for copies of about 30 drawings, or 10% of the total. (R9 at 82).

E. Incomplete Vendor Data

19. Both the cost and the resulting effect of not having fully-dimensioned drawings could have been substantially mitigated if Becon had timely provided vendor data and drawings to Comstock. (R14 at 83-86; 98-99).

20. Becon and Ohbayashi initially contemplated that Becon would procure the major items of equipment for Area 500, including boilers, pumps, compressors, and electrical equipment. (R8 at 76). Becon procured these items because of the long lead time associated with obtaining these major items of equipment. (R8 at 87). Although Becon and Ohbayashi initially intended that the successful mechanical bidder would provide the remainder of the mechanical equipment, Becon proposed in late 1986 that Becon itself should perform some additional procurement to minimize the possibility of schedule slippage. (R8 at 75). Ohbayashi ordered Becon to proceed with the additional procurement on January 20, 1987. (R12 at 123).

21. The parties understood that Becon would provide vendor data (working drawings supplied by the manufacturers of equipment and specialty items which depicts dimensions and configuration of the furnished items). (R1 at 45). John Mayne, Jr. testified that at the February 23, 1987 meeting with Becon, Comstock indicated that it would need vendor data approximately one week after receiving the notice to proceed with the work, if awarded the bid. (R1 at 45; see P.E. 28). Becon’s Dale Eichhorst and Paul Sheridan testified that at this time Comstock knew or should have known that vendor information could not be available so quickly with respect to equipment procured under the January 20 order by Ohbayashi, given the time lapse between the placing of an order and the receipt of vendor information. (R7 at 30-32; Rll at 27; see also RIO at 72). John Mayne, Jr., on the other hand, insisted that Comstock did not have any indication whatsoever that it would not have vendor drawings in time to prepare isometric drawings. (R1 at 185).

22. The very first Request for Information (RFI) submitted by Comstock on April 2, 1987 requested a schedule for transmittal of vendor drawings for “all the major pieces of equipment” to be installed in Area 500. (R2 at 63-64; P.E. 96). When no response was forthcoming, Comstock again requested the vendor data on April 12; it expressly informed Becon that the information was critical to continued progress on mechanical isometric drawings which were needed for pipe fabrication. (P.E. 97). Over a month later, on May 15, 1987, Becon finally responded to these two RFIs by indicating that preliminary drawings would be sent as they arrived from the vendors. (P.E. 96 and 97). On June 9, Becon wrote to Ohbayashi of the difficulties experienced by Comstock on the project, and asked that, among other things, Ohbayashi “improve the turnaround time of vendor prints.” (P.E. 1235). As of June 11, a number of vendor drawings were still missing. (P.E. 118). Although Becon’s Mayfield replied promptly, drawings for various meters and instruments still had not been provided by Giffels or Ohbayashi. Thereafter, Comstock received the vendor data throughout the course of the Project, with some vendor drawings not being received by Com-stock until 1988. (See P.E. 314; R1 at 184).

23. Whether or not it was realistic to expect all vendor information within a week of the issuance notice to proceed (which was March 18, 1987, according to P.E. 1956), Comstock could not reasonably anticipate the delays it actually encountered in receiving some vendor information. A telling comparison may be drawn with Comstock’s own contractual obligation to provide “[a]ll submittals and vendor prints submitted to the contractor—5/1/87” (P.E. 1955, Art. 4.0, p. 6 of 10)— a little more than a month after the effective date of its contract. Becon did not intentionally withhold vendor information from Com-stock, but generally passed on whatever data it received. (R7 at 127-28). Nevertheless, Becon had' a contractual duty to provide its subcontractor with the information in a timely manner. This obligation assumed special significance in light of Toyota’s mandate that time was of the essence, and that time extensions were not an alternative. Furthermore, Comstock’s need for vendor data was particularly acute in light of the fact that Comstock was not provided with fully dimensioned issued-for-construction drawings.. (See R14 at 83-89).

24. Because Becon did not provide this information to Comstock in a timely manner, Comstock’s craft personnel had to determine the missing dimensions once the material and equipment were received in the field and modify the piping accordingly. Comstock’s mechanical project manager, John Mayne, was unable to specify the number or percentage of vendor drawings which were missing at the time Comstock needed them to prepare isometrics, although he recalled that it was “á definite problem.” (R1 at 184).

F. Requests for Information; Coordination Problems

25. Because the design was incomplete in some respects, Corns,tock encountered a number of conflicts in installing its work. In response to these conflicts, Comstock forwarded requests for information (RFIs) to Becon in accordance with the requirements of the subcontract. During the course of the Project, 504 RFIs were initiated. According to Gerald Evans, getting answers from Be-con on electrical matters did not prove to be a special problem. (R4 at 27). Nor was there evidence that problems occurred with respect to the majority of Comstock’s mechanical questions. Yet in a number of cases, at least, Becon failed to provide reasonable responses to these requests and to cooperate with Comstock in resolving design problems and conflicts in the field.

Pertinent Contract Provisions. 26. The subcontract agreement contained a number of broad provisions which provide ammunition for claims by both parties. Regarding a critical area of responsibility, Comstock understood its engineering responsibility to mean typical construction detailing, including; e.g., mechanical routing, electrical conduit and tray routing, heat tracing engineering, coordination with other trades, required testing, punch listing, and assuring compliance with applicable codes. (P.E. 277). Eichhorst and Sheridan testified they had no disagreement with Comstock’s interpretation of its engineering responsibility as set forth. (R8 at 134-36; Rll at 40-41). Sheridan admitted that Giffels was paid extra to coordinate vendor data with the design documents. R12 at 142.

Coordination Meetings. 27. Beeon held weekly construction meetings with Comstock (R7 at 15-16) and weekly coordination meetings with all subcontractors during . the course of the Project. (R7 at 15-17). Becon had a contract coordinator on site after mid-1987. (R7 at 22-23). Comstock’s John Mayne, Jr. confirmed that there were no significant coordination problems with a number of other subcontractors and suppliers. (R4 at 149-154).

28. There were, however, a number of cases in which Comstock alleges Beeon failed to cooperate with Comstock in resolving questions and conflicts.

Material Review and Deliveries by Be-con. 29. Early in the Project, when questions arose as to precisely what material Becon and Comstock were each to supply, Becon rejected Comstock’s request for a comprehensive review of the materials to be provided. (R2 at 71-74; P.E. 123) Becon indicated a willingness only to answer specific questions, apparently on the basis that the contract provided that any equipment not shown on the equipment schedule was Com-stock’s responsibility. (R12 at 112). In one case, Comstock’s RFI was met with the response that Becon had delivered the equipment which was the subject of the query; on cheeking with the vendor, Comstock determined that Becon had not yet issued a purchase order on the equipment. (P.E. 164).

30. There was also evidence that Becon failed to provide some equipment in a timely manner. See P.E. 357, R6 at 13-14 (LA Water skids); R6 at 36 .(motor control centers); R6 at 38 (pumps and valves), R4 at 6 (cable trays). Mr. Sheridan testified that unless a specific date for delivery of equipment was set forth in the subcontract, Becon “made no commitment to Comstock as to when that equipment was going to be on the job sité.” (RIO at 197, 205). As late as September, 1987, some material was still not on site. Mr. Sheridan acknowledged a September conversation with representatives of Ohbayashi in which Becon and Ohbayashi agreed to have Comstock make the remaining purchases Becon was responsible for to avoid alerting Toyota to Becon’s procurement problems. (P.E. 2011-5; diary entry for September 24,1987).

Concrete Trenches. 31. When attempting to install large bore pipe in concrete trenches in the pre-waste water treatment facility in late July, Comstock discovered that the trenches installed by Messer, another Becon subcontractor, were too narrow. Comstock proposed a solution. (R1 at 158) Comstock’s RFI was submitted on July 23, 1987, with a reply requested by July 26. (P.E. 267). Ultimately, Comstock communicated directly with Giffels’ on-site engineer to arrive at a solution and then simply submitted a subsequent RFI asking Becon to confirm the solution Comstock had discussed with the Giffels engineer. (See, e.g., P.E. 267, P.E. 267-1; R1 at 160).

Flexible Connections Problem. 32. Because a specified connection met only one of the two requirements specified, but not both, Comstock requested direction from Becon as to how to proceed and suggested a possible solution. Beeon’s only response, written by Mark Mayfield, a young field engineer on his first job, was “meet spec.” (P.E. 1484-1). Becon’s Dale Eiehhorst admitted that he “would have preferred to see a more detailed answer,” and that the perhaps the question “should have went [sic] to somebody else.” (R8 at 185-86).

Pipe Routing at Air Dryer. 33. When pipe could not be routed in the manner that was shown on the orthographic drawings because of conflicts between piping and equipment, Comstock proposed a solution to resolve the conflict. In accordance with section 11.2.2 of the Ohbayashi/Becon General Conditions, which were incorporated in the Subcontract, and section 22 of the Summary of Work Comstock issued an RFI to Ohbayashi through Becon. (P.E. 263). Rather than discuss the matter with Comstock and express its approval or disapproval, Becon’s Mark Mayfield responded by indicating that under the contract, Comstock was to “provide engineering services” and “coordinate its work with all trades.” (P.E. 263). Again, the response indicates a lack of cooperation.

Line Running into Catwalk in 500 Trestle Area. 34. Where certain piping lines ran into obstacles due to the uncoordinated design, Mayfield’s response to Comstock’sproposed solution was for Comstock to “coordinate pipe with all trades per contract.” (P.E. 266). Comstock eventually discussed the problem with Giffels. As was often the case, Becon ultimately acknowledged that the work was not within the scope of Comstock’s contract, issued a CCN (in February, 1988), and paid Comstock for the direct cost of the additional labor and material required at the unit rates set forth in the Subcontract. (R8 at 23-25).

Boiler Relocation Problem. 35. Corn-stock relied upon the equipment location drawing in placing the boilers in the utility building. Unfortunately, there was a conflict between this drawing and the vendor drawing, and the boilers were set 6" too far south, (R1 at 142; R8 at 23). When Comstock alerted Becon to the problem, Becon advised Comstock that “per the contract, Comstock is responsible for engineering and insuring the correctness of the finished product, not Be-con or Ohbayashi!” (P.E. 256). Becon denied Comstock’s later claim on the basis that Comstock should have alerted Becon to the problem prior to setting the boilers. According to Dale Eiehhorst, Comstock submitted a Change Order Request for the relocation but later withdrew it. (R8 at 23).

DAF Unit. 36. At the end of September an issue arose regarding the vendor drawings supplied for the Area 502 dissolved air flotation (DAF) unit, which differed substantially from the engineer’s design. The vendor drawings called for 50% more pipe, 50% more pipe fittings, and a 42% increase in pipe welds. (P.E. 285). Despite the increase in labor and materials required to install the work, Becon asserted that the additional costs were Comstock’s under Article 34 of the Subcontract, which required it to “verify the piping connections to all equipment and modify the piping as necessary to match the equipment.” (R1 at 169-70; P.E. 1955, Summary of Work, Art. 34). Comstock’s letter of October 2, 1987, however, argued that changes of this magnitude were not part of the risks Comstock contemplated under Article 34. (P.E. 285). Although Becon’s Paul Sheridan consistently denied Comstock’s claim for extras during his tenure (see, e.g., P.E. 581; P.E. 284), apparently for fear of setting a precedent in similar situations (R13 at 133-36), a CCN was issued to Comstock within days of his departure in January 1988. (P.E. 1143).

Zurn Piping Conñict with Control Valves. 37. Piping supplied by Zurn, another Becon subcontractor, conflicted with the accessibility of certain control valves. Comstock recommended a modification; Be-con responded that Comstock should work out the problem directly with Zurn, and notify Becon if it could not be resolved. (R1 at 165-66; P.E. 268) Comstock was ultimately compensated for the work in April 1988.

Pipe Penetrations. 38. When Com-stock’s piping layout did not match wall penetrations installed by other contractors and core drilling was required, Comstock was advised to core drill the holes to the correct size at its own expense. (See R1 at 187-193; P.E. 276, 274). Later, however, after Mr. Sheridan left the job, a change order was issued to cover the core drilling work. (See R12 at 28-29).

Roof Conflicts. 39. In RFI No. 71, Com-stock advised Becon that a roof opening installed by Messer, another sub, was smaller than it was required to be for Comstock’s 16-inch pipe. When Comstock requested that Becon have the responsible contractor rework the framing and enlarge the opening in accordance with the contract requirements, Becon claimed that Comstock was the responsible contractor and the entity insuring that the openings were the correct size. Again, Comstock was eventually reimbursed for the work after Mr. Sheridan left the job. (See R1 at 193-195; P.E. 1273, RFI M-71).

40. Another conflict involved a curb opening at exhaust fan 502-6, where structural steel installed by another Becon subcontractor prevented Comstock from installing its work. (P.E. 560, item 2C). The conflict was first brought to Becon’s attention by Com-stock’s RFI M-70 dated June 5,1987. (P.E. 1273). Becon’s initial response was that Comstock was responsible for taking care of the problem. As of December, 1987, the problem was still unresolved. (P.E. 574). Becon subsequently requested that Comstock perform steel modifications to resolve the conflict; Comstock refused. (P.E. 575, 576). In light of Comstock’s continuing protestations, Becon eventually made other arrangements. (P.E. 1952).

Equipment Pads. 41. In late 1987, Com-stock discovered that concrete housekeeping pads installed by another Becon subcontractor were not installed at locations depicted on mechanical drawings. (R2 at 27-28; P.E. 311). When Comstock requested a change order to modify its pipe so that it would match up with the previously installed pads, Becon rejected its request, citing Comstock’s responsibility to “verify the accuracy ... of any work performed by others that ... [it] must tie into, work from or match in any manner ... prior to proceeding with the ... work.” (P.E. 1955, Summary of Work, Art. 22). According to Becon, Comstock did not check the location of the pads, which were poured prior to pipe fabrication. (P.E. 311). Mayne, however, insisted that fabrication was performed within four weeks of mobilization—before pouring of slabs. (R2 at 31-32).

42. In another case, Becon moved as many as five pump pads in order to miss a single drain hub. (R2 at 37-38). When Comstock requested a change order to correct the pump pads because the pipe in question was large diameter steel pipe (R2 at 38-39; P.E. 279), Becon indicated that the costs of changes were to Comstock’s account because of its verification obligation. (P.E. 1267). According to Comstock, however, these particular pads “were poured so late that any coordination of piping isometrics and fabrication with pump pad verification was impractical.” (P.E. 1267). Comstock proceeded to correct the problem. (R2 at 45-48).

43. Because of the problems associated with location of equipment pads, Comstock initiated a number of CORs (R7 at 112-13). At Becon’s request, Comstock incorporated all of these.into a single COR for the cost of the concrete it provided. (Id.) The original request was for $230,007.00 (R7 at 112). Be-con rejected this request, and its field engineer, Mark Mayfield, worked with Comstock to arrive at a quote of $121,800.00. (R7 at 119). Despite the joint effort, Becon rejected the proposal and the amount remains in dispute. (R7 at 120-21).

Painting of Insulated Pipe. 44. A considerable volume of correspondence and a number of meetings were devoted to the subject of Comstock’s responsibility for finish painting of insulated pipe. Although the record was fairly clear that Comstock had ex-eluded this work from its scope of work (see P.E. 64), the argument raged for some months until early 1988, when Becon at last subcontracted the work to another. (See R2 at 47-61).

Suit on Ingersoll Rand Mistake. 45. As Sheridan and Eichhorst testified, Becon attempted to force Comstock to coordinate its work directly with other Becon or Ohbayashi subcontractors in an effort to save time and money. (Rll at 51-52; R9 at 72). In at least one case this extended to resolution of related cost issues as well. Where Comstock was forced to do extra work because of an error in vendor drawings provided by Becon, Comstock was required to bring a lawsuit to obtain payment for the work occasioned by the dimensional error. (R8 at 162-64).

Becon’s Warning to Ohbayashi. 46. In a letter of June 22,1987, Becon, among other things, requested that Ohbayashi (1) answer all RFIs within three working days and provide clear, concise answers, (2) expedite review and approval of all submittals, (3) freeze the design of the work being installed by Comstock because “a steady stream of specification revisions and revisions to drawings is Comstock’s best excuse not to perform or meet the schedule dates,” (4) stop the reinterpretation of the specifications by Giffels and the owner, and (5) provide complete definitions of what is wanted when questions or changes are given to Comstock. (P.E. 1236). Becon concluded, “It is also important to keep in mind that if a contract is significantly changed by one party then the contract may no longer be valid.” (Id.) See also P.E. 1235 (Beeon’s June 9 letter to Ohbayashi urging it to improve turnaround time on revisions and vendor prints), and ¶ 85-87, infra.

Summary of RFIs. 47. Of 504 RFIs, more than 200 queries were submitted in May and June, 1987. According to John Mayne, those reflect the number of questions raised by lack of information on documents in Comstock’s possession—information which it needed to complete isometric drawings. This had an immediate effect on Comstock’s performance. A peak number of 78 RFIs were submitted in October, 1987, when Com-stock was entering the finishing stage on a number of systems and areas and was running into conflicts in the field, creating, to use Mayne’s word, “chaos.” (R3 at 58-63; P.E. 1976)

Conclusion. 48. The evidence indicates that in a number of cases Becon failed in its duty of cooperation and coordination as general contractor and increased the cost of performance to Comstock. This may have been because Becon was frustrated by lack of cooperation from Ohbayashi and Giffels, because it was actively seeking to minimize the administrative load on an undersized staff (see P.E. 1206, indicating Becon’s “arbitrary cuts” in staffing in an effort to secure the general contract), or because of the inexperience of individuals on its staff. In any event, it is clear that Becon should have taken a more active role in coordinating the work of separate contractors and expeditiously resolving design conflicts. Becon did pay Com-stock for the direct costs of performing much of the foregoing extra work. (R13 at 171-72). Comstock insists, however, that it is still owed for mobilization and demobilization costs, time spent in redirecting workers, re-planning the work, and in obvious inefficiency-

G. Denial of Time Extensions

49. From early on in its discussions with Becon, Comstock was informed repeatedly that the completion schedule was critical to Toyota, which stood to lose tens of millions of dollars if completion of the facility were delayed. (See R8 at 45, R13 at 83-84). All bidders were so informed during the bid cycle. Article 4.0 of the Subcontract executed by Comstock provided that “time [was] of the essence.” (P.E. 1955; D.E. 1). During the post-bid meeting on February 23, 1987, Becon advised Comstock that, contrary to the provisions in the bid documents, no time extensions would be granted to Comstock during the course of performance of the subcontract. (R1 at 47-48; P.E. 1955; R7 at 35; R10 at 73-74; P.E. 28, item 29). According to Comstock’s John Mayne, Jr., Comstock had bid the job assuming that it would be given time extensions as needed (R1 at 48); this new information amounted, in Mayne’s words, to “a very significant statement” by Becon. (R1 at 47). There is no evidence, however, that Comstock ever altered or adjusted its bid to take into account this information. In any event, Comstock was clearly aware that Becon would authorize no time extensions during the course of the job—a development which quite likely had the greatest effect on Comstock’s ability to plan and perform its work as well as the costs incurred by Comstock during performance. Comstock cannot be faulted for taking Becon at its word and failing to request formal time extensions during the course of the job.

Boiler Delays. 50. Package boilers purchased by Becon and installed by Comstock were probably the largest items of equipment installed in the utility area. There were two major delays on boiler installation: one involved the setting of the pressure relief valves, and the other the design and fabrication of boiler catwalks.

51. Despite the fact that Comstock and Becon became aware of a potential problem with the setting of the pressure relief values in September, 1987 (R2 at 98-99), and Com-stock took measures to resolve the problem (even though it did not furnish the equipment) (P.E. 402; P.E. 403; P.E. 405; R2 at 99-104), the state inspector denied acceptance of the setting in mid-December. (R2 at 106-108). Becon issued a CCN instructing Comstock to change the values and settings on one boiler and put all the others on hold. (P.E. 425; R2 at 109). Even though the boilers could not be operated without the valves, Becon authorized no extension of the contract milestone date for the first boiler, December 15, 1987. (P.E. 425; R2 at 108, 110). The main valves did not arrive at the Project until around February 1,1988. (P.E. 445, item 8). Comstock was obliged to design and fabricate boiler catwalks. On September 9, 1987, Becon requested that Corn-stock finalize engineering drawings for the platforms, noting that delays beyond September 16 would adversely affect the schedule. (P.E. 400). After Comstock submitted its design calculations for the platforms, however, serious discrepancies between its design and Giffels’ plans were noted. (R2 at 112-13). It was then determined that Becon had failed to transmit a January 23, 1987 specification revision to Comstock which substantially revised the parameters for the platform design. (R2 at 112-13; R6 at 43-44; P.E. 901-4). On October 8, 1987, Comstock informed Becon of the failure to transmit the revised specification to Comstock and noted consequences to the price and performance time. (P.E. 1275; R2 at 113-14). Comstock later informed Becon of the need for a time extension to complete platform work, noting that installation could not begin before January^ 1988. (P.E. 1293).

52. Other delays related to the boilers involved late coordination of valves for Honeywell instrumentation and control work (P.E. 426; R2 at 123-25) and late receipt of force draft fan main damper linkages, which arrived on January 29, 1988. (P.E. 446; R2 at 127-28). Neither delay was the fault of Comstock. A Comstock letter of February 1, 1988 summarized approximately 30 items relevant to boiler startup, none of which involved delays by Comstock. (P.E. 445; R2 at 136).

53. Although Becon did “redefine” certain project milestones (see, e.g., (P.E. 1253; P.E. 184), these bore no relationship to the time extension to which Comstock was entitled. (R6 at 31-32). Becon instructed Comstock to increase its manpower to meet the schedule set. (P.E. 1327). The controlling factor was a conflict between the milestones set forth in Comstock’s subcontract and the milestones in the instrumentation and control subcontractor’s agreement with Ohbayashi. (R9 at 70-71; P.E. 1268; Rll at 76-77). In any event, as Comstock’s scheduler, Paul Makris, noted, the actual extensions, when they happened, occurred too late to permit Comstock to efficiently plan ahead or perform the work efficiently. (R6 at 31-32, 55-56).

54. Becon contends that changes to certain interim milestone dates constituted time extensions, yet it has asserted a counterclaim because of Comstock’s supposed failure to achieve the milestone associated with start-up of one boiler.

Effect of Time Limits. 55. Because of the changes to the work, coupled with the time limitation imposed by Becon, Comstock was required to substantially increase its workforce to accomplish the work on time. At the February meeting, Comstock informed Becon that it anticipated a work week of eight hours per day, five days per week. (R1 at 42-43). It also stated that it expected its mechanical manpower would peak at 136 persons. (P.E. 28; R6 at 46; R1 at 42-44). As it happened, Comstock’s actual manpower peaked at about 350 persons. (R3 at 36). Among other things, Comstock was required to work more than 34,000 hours of craft labor overtime. (R13 at 214, P.E. 1994).

H. Volume of Changes

56. No element is more critical to Com-stock’s abandonment and cardinal change claims than its allegation that changes well beyond what it anticipated dramatically affected its ability to plan and perform the work. Comstock was on notice that significant changes were in the offing, although it could not have anticipated the number of changes it was ultimately required to perform.

What Comstock Knew or Should Have Known. 57. Becon’s Paul Sheridan and subcontract administrator Dale Eichhorst insist that Comstock was put on notice that there would be “lots of changes” in the project. (R10 at 54, 57; R6 at 176; R7 at 24-25, 35-36). Although Comstock’s mechanical project manager, John Mayne, Jr., disagrees with this characterization (see R3 at 87-89), Mayne’s own minutes of the February 24, 1987 meeting reflected the fact that there would be “extras”, meaning additional work. (P.E. 43; R1 at 56-57). Based on the circumstances, moreover, Comstock was or should have been aware that substantial changes were contemplated.

58. Among other things, Comstock was aware that there would be significant forthcoming changes relating to startup work and the liquid tank farm. (R3 at 80). Com-stock’s original bid (D.E. 136) contained a price of $131,000 for startup of systems. (R7 at 27-28). At the February 23 meeting between the parties, Becon asked Comstock to revise its startup price to include work through the manufacturing area of the Project. (R1 at 44; R7 at 28, 45-47). Comstock was asked to come up with a budgetary number to be included in the contract price. (R7 at 29). Following the March 3, 1987 meeting, Comstock submitted a revised estimate in the amount of $990,369. (D.E. 24). As Comstock’s John Mayne, Jr., testified, however, the figure was only an estimate since the scope of start-up work was not completely defined. (R1 at 66; R3 at 93-94). Subcontract amendments related to start-up ultimately totalled $1,995,892. (R3 at 156; D.E. D).

59. At the February 23, 1987, meeting Comstock was shown preliminary drawings of the proposed automotive fluids liquid tank farm. (R3 at 81-82; R9 at 9-10). Comstock was informed that as soon as the liquid tank farm package was assembled and complete enough to be priced, it would be issued as a change order to the contract. (R1 at 46; R7 at 29-30; R10 at 73). It was anticipated that a change notice would be issued soon after contract award. (P.E. 32). The liquid tank farm ultimately resulted in changes of $1,465,250 to the contract price. (R1 at 46-47; R3 at 156; D.E. D).

60. Comstock was also informed that it should provide an allowance in its price for structural steel. Subcontract amendments related to supplemental steel resulted in payments totaling $294,472. (R3 at 157-58; D.E. D). Comstock has reserved a substantial claim for supplemental steel under a separate count in its complaint. This issue was not addressed in the Count 17 presentation.

61. The contemplation of changes was also at the heart of negotiations relating to unit price provisions to be included in the contract. (R3 at 88). The subject was first raised by Becon during the February 23 meeting. (P.E. 28, item 7; R1 at 49; R7 at 40). This discussion continued at the March 3,1987 meeting between the parties, at which time Comstock proposed a new method for the pricing of contract changes. (R10 at 75-76).

62. Significantly, bidders were informed by Becon that a resident cost engineer and resident scheduling engineer would be required for both the mechanical and the electrieal contract. (D.E. 19). During the negotiations between Comstock and Becon, Comstock suggested that it supply only one cost engineer and one scheduling engineer to handle both projects, in a combined role, as a cost-saving measure. However, Becon replied after some consideration that one scheduling engineer would be acceptable but that each side of the Project, mechanical and electrical, needed its own cost engineer to handle the pricing of change orders. (RIO at 169). Paul Makris, Comstock’s scheduling engineer, admitted that the requirement of resident engineers was “some acknowledgment of the fact that ... we knew there were going to be additional changes.” (R6 at 82).

63. For change work (other than startup work), Comstock had contracted for a substantial markup of 21% for overhead and profit. (R9 at 61).

64. Given all of the foregoing, Comstock was or should have been aware that significant changes were anticipated for the Project.

“A Lot of Changes.” 65. On the other hand, Comstock could not reasonably anticipate the number of changes that it actually encountered. As Becon’s post-Project analysis for Ohbayashi stated, “[Giffels’] incomplete design caused the issuance of numerous bulletins, specification updates and field changes resulting in over 450 major change orders issued by Ohbayashi to Becon, which in turn required change notices to all effected subcontractors.” (P.E. 1421). The “extreme number of changes” was burdensome to personnel on site. (Id.). Becon wrote Ohbayashi on more than one occasion regarding its concerns with ongoing changes and potential “impact” claims by Comstock. (P.E. 1235; P.E. 1236).

66. Comstock received a total of 238 contract change notices (CCNs) during the Project, and initiated a total of 227 change order requests resulting in 208 subcontract amendments. (P.E. 1977; P.E. 19676; R3 at 40-41). Compared to its anticipated labor hours, Comstock experienced a 61% increase in electrical labor and an 87% increase in mechanical labor. (R3 at 38-40). Com-stock’s original subcontract price of approximately $14.7 million was increased by subcontract amendments to over $21 million— about a 50% increase in the contract amount. Of course, between $3 and $4 million in approved changes—about half of the total— relate to work Comstock was aware of at the time of entering into the contract (startup work, liquid tank farm, supplemental steel). Comstock’s accountant testified that the total cost of performance was $26,895,650, more than 80% more than the original price.

67. The great majority of the approved changes related to area 501, the utility building—especially the boiler area. (R3 at 44-46). There is no doubt that the significant number and timing of the changes caused inefficiencies in project planning and in performance of the work-—especially since there were no time extensions. As Mr. Mayne testified: “We had people on top of people, ... too many people in the specific work areas trying to get this work done on as timely a basis as we could possibly do it. It slowed our ... work down [doing changes and original contract work simultaneously].” (R3 at 62-63; see also R6 at 55-56).

68. Mayne also testified that from a proposed mechanical staff of 11 persons plus a project director, Comstock went to 29 staff plus a project director, a mechanical project manager, and Ron Gordon, who was enlisted to assist with change orders. (R5 at 122).

69. Comstock electrical project manager Gerald Evans provided similar testimony regarding the effect of changes on the electrical work. (R4 at 13-29). He did, however, testify that all of the electrical claims had been addressed by change order.

I. Early Performance, Administration and Scheduling Problems

70. Contrary to its plan, Comstock did not mobilize immediately after signing the letter of intent on March 31, 1987. Moreover, it experienced other significant problems early in the job.

Slow Mobilization. 71. According to Beam's Paul Sheridan, Comstock’s mobilization was slow. (R10 at 102). Comstock’s lack of activity during this period was corroborated by Robert Jordan, Ohbayashi’s project manager, (R13 at 75), and by Comstock’s own manpower loading comparisons. (P.E. 1979) According to Jordan, the time lost during the early weeks of performance was never regained. (R13 at 77).

72. Becon’s Dale Eiehhorst testified that through July 1987, the overall schedule appeared to be on target. (R9 at 23). However, he explained that problems such as the NPS hanger problem remained and eventually caught up with Comstock and affected the schedule later. (Id., P.E. 1248). The testimony is in conflict regarding the reasons for Comstock’s slow start.

Administration and Scheduling Problems. 73. Under the provisions of the Subcontract, Comstock was obligated to have on site a full-time project manager, two cost engineers, and a scheduling engineer. Com-stock delayed providing cost and scheduling engineers to the project (RIO at 112), and failed to submit on a timely basis contractually required progress curves, a satisfactory schedule, or a quantity reporting system. (RIO at 116).

74. Under the provisions of the subcontract, Comstock was obligated to submit a schedule for approval within 15 days of the beginning of the job. (P.E. 94, item 15A; R7 at 63). The schedule was required to be developed using Primavera, the computer software utilized by Becon. (RIO at 54-56). Scheduling requirements were discussed in pre-bid meetings, (see D.E. 19; D.E. 20), and at the March 27, 1987 meeting between Be-con and Comstock. (P.E. 94, item 15a). Counting from the day Comstock executed the letter of intent, March 31, 1987, this schedule would have been due in mid-April 1987. (R10 at 104). A Primavera schedule acceptable to Becon was not supplied until the summer, however. (RIO at 155-56). Be-con complained about scheduling problems in a series of letters: April 30, 1987 (D.E. 32), May 29, 1987 (D.E. 33), June 5, 1987 (D.E. 34), and June 30, 1987 (D.E. 35). (R10 at 160-62). When Comstock’s scheduler, Z. Palfry, showed up on site in mid-May, he had to be trained by Becon’s scheduling supervisor. (R10 at 116-17). When a Primavera schedule was at last submitted on June 29, 1987, it was out of date—being, essentially, the bid schedule. (R6 at 76-77, 118). Apparently, Comstock was attempting to get Becon to recognize its original plan of work as a baseline for measuring delays to Com-stock—and a tacit admission of Becon’s own fault in delaying Comstock. (R6 at 14^16, 78-81). On August 3, 1987, Becon advised Comstock that its submitted schedule was conditionally accepted. (R10 at 164-65; D.E. 37), The approved schedule was a bar chart. (R6 at 12-13,16-17).

75. Although computer equipment was necessary for running the job, this equipment was not even ordered until sometime in April. (R6 at 62-63).

76. Whether or not it had been delayed by Becon, Comstock’s failure to present an acceptable schedule for several months militates against its claim under Count 17, if only because both parties presumably needed some form of schedule for project planning— a schedule which recognized the present realities of the job. As stated in the letter from Becon to Comstock dated June 30, 1987, Comstock had not provided a schedule reflecting “the current situation relative to material deliveries, availability of areas to work, status of Comstock’s pipe deliveries or pipe supports, the status of engineering submittals and the work that was scheduled to be completed but is not.” (D.E. 35). Becon’s Paul Sheridan testified that the effect of Comstock’s failure to comply with scheduling and reporting requirements was to: (1) strain relationships between Ohbayashi, Be-con and Comstock; (2) slow up Comstock’s ability to bill Becon; and (3) affect Com-stock’s ability to manage work in the field and plan its progress. (RIO at 172-73). However, Paul Makris testified that Com-stock did employ intermediate bar charts for scheduling purposes from late April on. (R6 at 20). Although it is unclear what specific effect this delay had on the performance of the job, it raises important questions regarding Comstock’s share of responsibility for its later acceleration and productivity problems.

77. Becon also alleged that Comstock could not track quantities of material used for some months. This information was needed to update the schedule and for billing purposes. (RIO at 157). Becon asserted that Comstock’s inability to use the system apparently required considerable manual recording of data and diverted resources from other tasks. According to Comstock’s Paul Makris, the reconciling of Comstock and Be-con cost codes took a fair bit of time (R6 at 121). Comstock’s John Mayne, Jr., howev