Tip Top Construction, Inc. v. Donahoe , 695 F.3d 1276 ( 2012 )

United States Court of Appeals
for the Federal Circuit
__________________________
TIP TOP CONSTRUCTION, INC.,
Appellant,
v.
PATRICK R. DONAHOE, POSTMASTER GENERAL,
Appellee.
__________________________
2011-1509
__________________________
Appeal from the Postal Service Board of Contract Ap-
peals in no. 6351, Administrative Judge Norman D.
Menegat.
____________________________
Decided: September 19, 2012
____________________________
MICHAEL A. GORDON, Michael A. Gordon, PLLC, of
Washington, DC, argued for the appellant.
DAVID A. HARRINGTON, Senior Trial Counsel, Com-
mercial Litigation Branch, Civil Division, United States
Department of Justice, of Washington, DC, argued for
appellee. With him on the brief were TONY WEST, Assis-
tant Attorney General, JEANNE E. DAVIDSON, Director,
and BRYANT G. SNEE, Deputy Director.
__________________________
TIP TOP CONSTRUCTION v. USPS 2
Before RADER, Chief Judge, MAYER, and SCHALL, Circuit
Judges.
SCHALL, Circuit Judge.
Tip Top Construction, Inc. (“Tip Top”) appeals the fi-
nal decision of the Postal Service Board of Contract Ap-
peals (“PSBCA” or “Board”) granting-in-part and denying-
in-part Tip Top’s appeal under the Contract Disputes Act
of 1978, as amended (“CDA”), 41 U.S.C. §§ 7101–7109.
Tip Top Constr., Inc., PSBCA No. 6351, 11-1 B.C.A.
¶ 34,726, 2011 WL 1226107 (Apr. 1, 2011) (“Board Deci-
sion”). In its decision, the PSBCA ruled that Tip Top was
entitled to recover $2,565 of the $12,400 it claimed as an
equitable adjustment resulting from a change order under
its indefinite quantity job order contract with the Postal
Service for renovation and alteration of postal facilities in
the U.S. Virgin Islands (the “contract”). Id., slip op. at 16.
The Board ruled that Tip Top was not entitled to recover
the balance of the amount claimed, $9,835, because it had
failed to demonstrate that the costs at issue were incurred
as a result of the change order. Id., slip op. at 17. Be-
cause we conclude that this latter ruling by the Board was
based upon an error of law and not supported by substan-
tial evidence, we reverse and remand the case to the
Board with the instruction that it grant Tip Top’s appeal
in its entirety.
BACKGROUND
I.
The Postal Service awarded the contract to Tip Top on
July 26, 2007. Id., slip op. at 2, ¶ 1. The contract con-
templated that from time to time the Postal Service would
assign Tip Top individual projects by issuing work orders.
Id.
3 TIP TOP CONSTRUCTION v. USPS
The contract specified a procedure for the issuance of
a work order. Id., slip op. at 2–3, ¶ 3. First, the Postal
Service and Tip Top would hold a Joint Scope Meeting, at
which the Postal Service would explain to Tip Top the
work it wished to have done and Tip Top could provide
input. Next, the Postal Service would prepare a “Detailed
Scope of Work,” on which Tip Top would base its proposal
for the work. The proposal would be a lump-sum fixed-
price proposal which would be contained in a “Price
Proposal Package” which Tip Top would present to the
Postal Service. If the Postal Service accepted Tip Top’s
Price Proposal Package, it would issue a work order for
the project. Id., slip op. at 3–4, ¶ 5. Contract Clause
B.309 stated, “The contractor shall not recover any costs
arising out of or related to the development of the work
order including but not limited to the costs to review the
Detailed Scope of Work or prepare a Price Proposal Pack-
age . . . .” Contract Clause B.309, Work Order (Clause F-
302) (March 2006), subsection I. The contract also con-
tained a changes clause. See Contract Clause B.1006,
Changes (Construction) (Clause B-37) (March 2006)
Modified, subsections a,c.
On May 26, 2009, the Postal Service issued Tip Top a
work order to replace the air conditioning system at the
Main Post Office in Christiansted, Virgin Islands, for the
price of $229,736.92. Subsequently, on July 26, 2009, Tip
Top sent the Postal Service’s construction manager, Victor
Morales, its mechanical subcontractor’s submittals. The
subcontractor planned to install Carrier Air Cooled Con-
densers Model 09DK020 and a Carrier Air Cooled Indoor
Unit Air Handler Model 05BV024. The proposed con-
densers could be used with refrigerants R-12, R-22, R-500,
and R-134a; the proposed air handler could be used with
refrigerants R-22 and R-410a. The equipment submittals
did not identify the refrigerant Tip Top planned to use.
TIP TOP CONSTRUCTION v. USPS 4
The Postal Service’s construction manager approved the
submittals, and based on that approval, Tip Top’s me-
chanical subcontractor ordered the listed equipment and
associated fittings and piping.
In September of 2009, Tip Top sent its submittal for
the system refrigerant to Mr. Morales. In the submittal
Tip Top stated that it planned to use R-22 refrigerant. On
September 18, 2009, Mr. Morales returned the submittal
to Tip Top marked “Reviewed, no exceptions taken.”
Later that same day, however, Mr. Morales emailed Tip
Top stating that Tip Top should ignore the previous
approval and that R-410a refrigerant should be used in
the system. A week later, Ivan Diaz, Tip Top’s consultant
for the project, responded that the equipment previously
ordered from Carrier Corp. (“Carrier”) was only available
with R-22 refrigerant and that a change in equipment
would involve additional cost and penalties estimated at
$20,000. Mr. Diaz asked how Tip Top should proceed.
Mr. Morales responded on September 28, 2009, asking Tip
Top to submit a proposal to furnish and install air condi-
tioning equipment that used R-410a refrigerant.
During the period September 18 through October 13,
2009, Mr. Diaz assisted Tip Top in negotiating the re-
quired change with its mechanical subcontractor and
Carrier. On October 13th, Tip Top submitted to the
Postal Service specifications for air conditioning equip-
ment that used R-410a refrigerant.
The submittal was approved by the Postal Service on
October 15, 2009. Shortly thereafter, on October 19, 2009,
Tip Top, through Mr. Diaz, submitted a proposal in the
amount of $28,838.43 for additional costs associated with
changing the air conditioning system from one using R-22
refrigerant to one using R-410a refrigerant.
5 TIP TOP CONSTRUCTION v. USPS
In early November 2009, Robert Manka, the Postal
Service’s contracting officer, orally instructed Tip Top to
proceed with the change in refrigerant. Subsequently, on
January 12, 2010, Mr. Manka directed Tip Top in writing
to proceed with the change in equipment from a system
using R-22 refrigerant to one using R-410a refrigerant.
Mr. Manka’s letter stated in pertinent part as follows:
Tip Top Construction is hereby directed to proceed
with the equipment refrigerant change from R22
to R410a as detailed in the scope-of-work provided
by Mr. Ivan Diaz in his letter dated October 19,
2009 to . . . Project Manager Victor Morales for a
price to be determined later but not to exceed
$28,838.43.
During the period between September of 2009 and
June of 2010, Tip Top and the Postal Service discussed
pricing of the changed work. Until March 8, 2010, Mr.
Diaz conducted the negotiations on behalf of Tip Top.
From that point on, Percy Hollins, Tip Top’s president,
conducted the negotiations.
The critical issue in the negotiations was whether Tip
Top was entitled to recover the costs it incurred in prepar-
ing the $28,838.43 estimate that Mr. Diaz submitted to
Mr. Morales on October 18, 2009. On April 8, 2010, Mr.
Manka sought guidance within the Postal Service on this
issue, writing “If one of our JOC Contractor firms hires a
firm to do their cost estimating for proposals and modifi-
cations is the cost . . . considered an overhead charge or
does it become a direct or indirect billable cost?” After
receiving an answer to his inquiry, Mr. Manka sent an
email to Mr. Hollins on April 16, 2010, quoting to Mr.
Hollins the advice which he had been given: “The cost is
an overhead charge and is not a billable cost. We recom-
mend you review contract clause F-302 titled Work Order
TIP TOP CONSTRUCTION v. USPS 6
subparagraph I, in the associated contract which provides
specific discussion on processing work orders.” Notably,
the advice Mr. Manka received and which he passed on to
Mr. Hollins only addressed Mr. Manka’s question insofar
as it related to cost estimating for work orders. It did not
address his question insofar as it related to cost estimat-
ing for modifications under the contract’s changes clause.
Beginning in April of 2010, counsel advised Mr. Hollins
and assisted him in his continuing negotiations with the
Postal Service.
Negotiations between Tip Top and the Postal Service
ended on June 18, 2010. That day, Mr. Hollins wrote Mr.
Manka, stating, “Tip Top . . . has reviewed the Postal
Services’ responses dated April 16, 2010, April 23, 2010,
and June 8, 2010 to our emails with outside counsel and
do not consider your position substantially justified.” Mr.
Hollins wrote that Tip Top therefore was submitting “a
claim and request for an equitable adjustment under the
Contract Disputes Act.” Tip Top’s claim was in the total
amount of $34,553.77. This was comprised of (i) Tip Top’s
subcontractor’s price for the change (in the amount of
$18,757.43, plus 10% profit, 4% insurance, and 4% gross
receipts tax, for a subtotal of $22,133.77); (ii) $9,655 for
“Preparation Costs & Extended Overhead; and (iii) $2,745
for “Legal Fees.”
On June 23, 2010, Mr. Manka issued a contracting of-
ficer’s final decision in which he granted Tip Top an
equitable adjustment in the amount of $22,133.77. He
denied the balance of the claim, in the amount of $12,400.
Mr. Manka based his partial denial of Tip Top’s claim on
two considerations. First, he concluded that the proposal
preparation costs were barred by Contract Clause B.309.
As noted above, that clause provides that contractor’s
costs in connection with work orders are not recoverable.
Second, he concluded that it was unreasonable for Tip Top
7 TIP TOP CONSTRUCTION v. USPS
to spend $6,704.66 to prepare a change order valued at
only $22,133.77.
II.
Tip Top appealed the contracting officer’s final deci-
sion to the PSBCA, seeking to recover $12,400, the
amount of its claim which Mr. Manka had denied. In its
appeal, Tip Top elected to proceed under the Board’s
accelerated procedure, which is available in the case of a
claim of less than $50,000. See 39 C.F.R. § 955.13. Under
that procedure, the Board decides an appeal on the record
without an oral hearing. See id. § 955.12.
On April 1, 2011, the PSBCA issued its decision on
Tip Top’s appeal. The Board ruled that Tip Top was
entitled to recover $2,565 for costs incurred by Tip Top’s
consultant, Mr. Diaz, through October 15, 2009. That was
the day on which Mr. Morales, on behalf of the Postal
Service, accepted Tip Top’s equipment proposal for an air
conditioning system using R-410a refrigerant. Board
Decision, slip op. at 7–8, ¶ 20, 16. The Postal Service had
urged that the provision in Contract Clause B.309 barred
recovery of the costs Tip Top sought. The Board rejected
this argument. The Board stated that Clause B.309 did
not apply to Tip Top’s claim because the clause only
barred recovery of contractor costs incurred in reviewing a
Detailed Scope of Work. This, the Board stated, was “a
process exclusive to award of the original work order.”
Id., slip op. at 11. The Board continued that it was the
changes clause of the contract that governed Tip Top’s
claim for an equitable adjustment resulting from the
Postal Service’s change order. The Board ruled that Tip
Top had met the requirements for recovery under this
clause as far as the $2,565 in costs relating to Mr. Diaz’s
work prior to October 15, 2009 were concerned. The
Board stated that the costs were compensable because
TIP TOP CONSTRUCTION v. USPS 8
they represented “an increase in [Tip Top’s] direct cost of
performance due to the change.” Id., slip op. at 16.
The PSBCA also ruled, however, that Tip Top was not
entitled to recover the balance of its claim, in the amount
of $9,835. This amount consisted of Mr. Diaz’s fees and
overhead costs after October 15, 2009, until he left the job
in March of 2010. It also consisted of legal fees in the
amount of $2,745 for work done during the period April 21
through June 8, 2010. In denying recovery of this part of
Tip Top’s claim, the Board stated that the negotiations
between Tip Top and the Postal Service after October 15,
2009, relating to recovery of Tip Top’s estimating costs,
which resulted in work by Mr. Diaz and outside counsel,
“had nothing to do with performance of the changed work
or genuine contract administration and were solely di-
rected at trying to convince the contracting officer to
accept [Tip Top’s] figure for the change and maximizing
[Tip Top’s] monetary recovery.” Id., slip op. at 18. The
Board concluded: “[O]nce the substitute equipment was
approved, nothing remained to be negotiated except the
price. There is no evidence that the parties’ negotiations
addressed an extended delivery schedule or any other
changes to contract performance requirements.” Id., slip
op. at 18–19. The Board also found that Tip Top had not
adequately documented Mr. Diaz’s charges, stating, “As
the consultant likely was working on other project mat-
ters, it was incumbent upon [Tip Top] to identify hours, if
any, spent on the equipment change issue, and it has not
done so.” Id., slip op. at 17.
Tip Top has timely appealed the PSBCA’s decision.
We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(10).
9 TIP TOP CONSTRUCTION v. USPS
DISCUSSION
I.
We review appeals from the PSBCA under the stan-
dard set forth in 41 U.S.C. § 7107(b):
(1) [T]he decision of the agency board on a ques-
tion of law is not final or conclusive; but
(2) the decision of the agency board on a question
of fact is final and conclusive and may not be set
aside unless the decision is--
(A) fraudulent, arbitrary, or capricious;
(B) so grossly erroneous as to necessarily
imply bad faith; or
(C) not supported by substantial evidence.
II.
Tip Top first contends that the Board committed legal
error by holding that its consultant and attorney costs
associated with the negotiations relating to the price of
the changed work were not recoverable. That holding, Tip
Top argues, conflicts with this court’s holding in Bill
Strong Enterprises, Inc. v. Shannon, 49 F.3d 1541 (Fed.
Cir. 1995). Appellant’s Br. 19–22. There, we held that,
under the Federal Acquisition Regulation (“FAR”), con-
sultant costs incurred by a contractor in connection with
negotiations relating to the additional compensation to
which the contractor was entitled by reason of govern-
ment-caused delay of the job were allowable as contract
administration costs, even though the negotiations even-
tually failed. Bill Strong, 49 F.3d at 1550. Thus, Tip Top
urges, the consultant and legal fees it incurred in negoti-
ating the price of the change order are recoverable as
contract administration costs. The fact that the contract
TIP TOP CONSTRUCTION v. USPS 10
at issue is not governed by the FAR is irrelevant, Tip Top
claims, because the contract is governed by a changes
clause which is substantially similar to the standard
changes clause in the FAR. 1 Appellant’s Reply Br. 5.
Tip Top also argues that the Board’s finding of insuf-
ficient evidence supporting certain consultant costs was
not supported by substantial evidence. Specifically, Tip
Top takes issue with the Board’s treatment of Mr. Diaz’s
fees after October 15, 2009, when the substitute equip-
ment was approved. Tip Top contends that it provided
ample support for those costs in the form of Mr. Diaz’s
timesheets and declarations from Mr. Diaz and Mr.
Hollins. Appellant’s Br. 15–19. Noting that this evidence
was unrebutted, Tip Top argues that the Board’s finding
that Mr. Diaz was likely working on other matters was
based purely on improper speculation. Id. at 19.
The government responds by first arguing that Tip
Top’s attorney fees are not recoverable because costs
incurred to prepare and document a claim for equitable
adjustment are not recoverable. Appellee’s Br. 10. Ac-
cording to the government, the record establishes that Tip
Top’s attorney fees were incurred in the filing of a claim
and thus they are not recoverable. Id. at 11–12.
Next, the government contends that Tip Top failed to
provide sufficient evidence to support its claim for con-
sultant costs incurred after October 15, 2009. According
to the government, the invoices of Mr. Diaz do not provide
sufficient detail to determine the type of work he per-
formed. Id. at 12–16. The government further argues the
declarations provided by Mr. Hollins and Mr. Diaz are
after-the-fact and of dubious value. Id. Additionally, the
1 Postal Service contracts are not governed by the
FAR. In re Appeal of Kirkpatrick, PSBCA No. 3832, 96-2
B.C.A. ¶ 28,599, 1996 WL 590751 (Oct. 11, 1996).
11 TIP TOP CONSTRUCTION v. USPS
government states that Mr. Diaz’s costs are unreasonable
because of the ratio between his costs and the cost of the
change. Id. at 16–17.
III.
The PSBCA held that costs incurred after approval of
the substitute equipment were not recoverable. As seen,
the basis for the Board’s holding was its determination
that the efforts of Tip Top’s consultant after October 15,
2009, and the work of its attorney through June 8, 2010,
were “solely directed at trying to convince the contracting
officer to accept Appellant’s figure for the change and
maximizing Appellant’s monetary recovery,” and there-
fore “had nothing to do with performance of the changed
work or genuine contract administration.” Board Decision,
slip. op. at 18. Thus, the Board reasoned that even
though during the period between October 15, 2009,
through June 8, 2010, the parties were negotiating the
price of the changed work, the negotiations did not relate
to contract administration because the Postal Service
already had accepted the substitute equipment and
because Tip Top was trying to persuade the contracting
officer to agree to its price of $28,838.43.
Under the changes clause of the contract, Tip Top was
entitled to an equitable adjustment for any increase in its
costs due to the change in the refrigerant. See Contract
Clause B.1006, Changes (Construction) (Clause B-37)
(March 2006) Modified, subsections a,c (“If any change
under this clause causes an increase or decrease in the
supplier’s cost of, or the time required for, the perform-
ance of any part of the work under the contract, whether
or not changed by any order, the contracting officer will
make an equitable adjustment and modify the contract in
writing.”). The question is whether costs arising from
negotiations relating to the price of the changed work are
TIP TOP CONSTRUCTION v. USPS 12
recoverable in this case because they constituted part of
the increased costs arising from the change directed by
the Postal Service. The government does not appear to
dispute that costs associated with general contract ad-
ministration are recoverable. Indeed, the government
acknowledged at oral argument that costs associated with
price negotiations are potentially recoverable if the requi-
site showing is made to the Board. Oral Arg. at 25:23,
available at http://www.cafc.uscourts.gov/oral-argument-
recordings/2011-1509/all (“[Costs associated with price
negotiation are] potentially recoverable if the requisite
showing is made to the Board.”). Rather, the government
argues that Tip Top’s consultant costs and attorney fees
are not recoverable because they were incurred in the
process of claim preparation. In short, both the PSBCA
and the government take the position that reasonable
contract administration costs arising in the setting of a
change order are recoverable. 2 We do not disagree. It
seems to us proper that if a change order requires a
contractor to incur contract administration costs, those
costs are recoverable to the extent they are reasonable.
Thus, the dispute depends on whether the costs are
classified as general contract administration costs or
claim preparation costs.
Although it involved the recovery of costs under the
FAR, our discussion in Bill Strong provides guidance on
how to classify costs. 3 In Bill Strong, a contractor who
2 As seen, the Board allowed recovery of Mr. Diaz’s
costs incurred up to October 15, 2009, but denied recovery
of his costs and the fees of Tip Top’s attorney after that
date. The Board stated that these latter costs and fees
“had nothing to do with performance of the changed work
or genuine contract administration . . . .” Board Decision,
slip. op. at 18.
3 The government argues that our subsequent rul-
ing in Reflectone, Inc. v. Dalton, 60 F.3d 1572 (Fed. Cir.
13 TIP TOP CONSTRUCTION v. USPS
was renovating housing units on a military base asserted
that it was incurring increased costs because the govern-
ment was releasing the units for work out of sequence. 49
F.3d at 1542. In response to the contractor’s assertion,
the government requested cost data and information from
the contractor. The contractor, in turn, hired a third-
party consulting firm to handle the submission of data to
the government. Id. at 1543. Eventually the parties
reached a settlement agreement. Id. The agreement,
however, specifically excluded the costs of the third-party
consultant’s fees, and the parties agreed that the con-
tracting officer would issue a final decision on the recov-
erability of those fees. Id. The contracting officer denied
recovery of the fees, stating that the work performed by
the third-party consultant was performed after the com-
pletion of the contract work and was thus “not incurred in
connection with the actual performance of the work.” Id.
at 1543–44.
In deciding the case, we examined the distinction be-
tween costs incurred in connection with the administra-
tion of a contract and costs incurred in connection with
the prosecution of a CDA claim, the former being recover-
able, but the latter not. Id. at 1549. In analyzing the two
types of costs, we observed the following:
In the practical environment of government
contracts, the contractor and the CO usually enter
a negotiation stage after the parties recognize a
1995) (en banc) casts doubt upon the discussion of cost
classification in Bill Strong. In Reflectone, we addressed
when a claim arises for purposes of the CDA and over-
ruled Bill Strong on this point. The discussion in Bill
Strong regarding whether a particular cost should be
classified as either a contract administration cost or a cost
incidental to the prosecution of a claim, however, remains
good law.
TIP TOP CONSTRUCTION v. USPS 14
problem regarding the contract. The contractor
and the CO labor to settle the problem and avoid
litigation. Although there is sometimes an air of
adversity in the relationship between the CO and
the contractor, their efforts to resolve their differ-
ences amicably reflect a mutual desire to achieve
a result acceptable to both. This negotiation proc-
ess often involves requests for information by the
CO or Government auditors or both, and, inevita-
bly, this exchange of information involves costs for
the contractor. These costs are contract admini-
stration costs, which should be allowable since
this negotiation process benefits the Government,
regardless of whether a settlement is finally
reached or whether litigation eventually occurs
because the availability of the process increases
the likelihood of settlement without litigation.
Additionally, contractors would have a greater in-
centive to negotiate rather than litigate if these
costs of contract administration were recoverable.
In classifying a particular cost as either a con-
tract administration cost or a cost incidental to
the prosecution of a claim, contracting officers, the
Board, and courts should examine the objective
reason why the contractor incurred the cost. If a
contractor incurred the cost for the genuine pur-
pose of materially furthering the negotiation proc-
ess, such cost should normally be a contract
administration cost allowable under FAR 31.205–
33, even if negotiation eventually fails and a CDA
claim is later submitted. On the other hand, if a
contractor’s underlying purpose for incurring a
cost is to promote the prosecution of a CDA claim
against the Government, then such cost is unal-
lowable under FAR 31.205–33.
15 TIP TOP CONSTRUCTION v. USPS
Id. at 1549–50 (citations omitted). We held that, under
this framework, the contractor’s consultant costs were
recoverable. Id. at 1550–51. With the guidance provided
in Bill Strong, we turn to the present case.
After reviewing the record in light of the discussion in
Bill Strong, we conclude that the PSBCA erred in holding
that the consultant costs and attorney fees which are at
issue were not “genuine contract administration costs”
because they were “solely directed at . . . maximizing [Tip
Top’s] monetary recovery.” Board Decision, slip op. at 17–
18. On October 19, 2009, Tip Top submitted its proposal
for the additional costs associated with the change.
Thereafter, in response to the proposal, the contracting
officer, in his January 12, 2010 letter, specifically referred
to “a price to be determined later.” Subsequently, Tip Top
and the Postal Service negotiated over the pricing of the
changed work. Through March 8, 2010, Mr. Diaz handled
the negotiations on behalf of Tip Top. After that, Mr.
Hollins conducted the negotiations for Tip Top. On April
16, 2010, Mr. Manka advised Tip Top by email of the
guidance he had received from within the Postal Service
as to the recovery of Tip Top’s consultant costs. Id., slip
op. at 9, ¶ 27. Negotiations then continued with Tip Top
assisted by counsel. Id., slip op. at 9, ¶ 28. Tip Top then
submitted a claim under the CDA on June 18, 2010. Id.,
slip op. at 10, ¶ 29. The contracting officer’s final decision
issued on June 23, 2010. Id., slip op. at 10, ¶ 31.
In our view, both the costs of Mr. Diaz’s work between
October 15, 2009, and March 8, 2010, and counsel’s fees
through June 8, 2010, were incurred “for the genuine
purpose of materially furthering the negotiation process.”
Bill Strong, 49 F.3d at 1550. The contracting officer, in
his letter of January 15, 2010, expressly left open for
further negotiation the issue of price. Thereafter, Tip Top
and the contracting officer continued to engage in negotia-
TIP TOP CONSTRUCTION v. USPS 16
tions over the price of the changed work in order to avoid
litigation. 4 Only on June 18, 2010, did negotiations
finally end when Tip Top submitted its claim under the
CDA. Simply because the negotiations related to the
price of the change does not serve to remove the associ-
ated costs from the realm of negotiation and genuine
contract administration costs. Consideration of price is a
legitimate part of the change order process. In holding
otherwise, the Board, we believe, erred.
IV.
Having held that the Board committed legal error, we
review whether substantial evidence supports the Board’s
alternative holding that Tip Top failed to establish its
costs for the time period after the substitute equipment
was approved. Based upon the record before us, we find
the Board’s holding unsupported.
Tip Top provided timesheets for Mr. Diaz’s work for
the relevant time period. To the extent more detail was
needed, Tip Top submitted declarations from Mr. Diaz
and Mr. Hollins describing the work performed by Mr.
Diaz. Additionally, Tip Top submitted attorney billing
records to support its claim for attorney fees. This evi-
dence was unrebutted. In reviewing the evidence, the
Board engaged in speculation that Mr. Diaz was working
on other projects, speculation which is not supported by
the record. In view of the evidence before us, we hold that
Tip Top adequately supported its costs for the time period
after the substitute equipment was approved and that
4 We see nothing in the record suggesting that ei-
ther Tip Top or the Postal Service negotiated in other
than good faith. In addition, by only claiming attorney
fees incurred through June 8, 2010, Tip Top limited its
claim to fees incurred during the negotiation process.
17 TIP TOP CONSTRUCTION v. USPS
those costs were reasonable in light of the course of the
price negotiations.
CONCLUSION
For the foregoing reasons, we reverse the ruling by
the Board insofar as it denied-in-part Tip Top’s appeal.
We remand the case to the Board with the instruction
that it grant Tip Top’s appeal in its entirety. This means
that Tip Top is entitled to recover $9,835 for consultant
costs and attorney fees, plus interest to the extent allowed
by the CDA.
Appellant shall have its costs.
REVERSED and REMANDED