The ASBCA’s November 2021 decision in Harry Pepper and Associates, Inc., No. 62038 et al. (Nov. 3, 2021) offers important guidance on the role of live witness testimony in one of the most challenging aspects of differing site conditions claims: proving that the actual site conditions were actually different from those that were expected.

The claims at issue in the case arose from a $36 million task order for the restoration of NASA’s B-2 rocket test stand, which was built in the 1960s as part of the Apollo program and used to test the Saturn V rockets. The restoration was needed so that the B-2 stand can be used to test rocket vehicles for use in NASA’s new moon-launch program, Artemis.

One set of claims at issue in the Board proceedings related to the installation of steel reinforcements in a section of the test stand known as the “battleship.” Citing the FAR differing site conditions clause as well as several alternative theories, the contractor asserted that obstructions made it impossible to lower the large reinforcement steel members into place using access holes identified in NASA’s construction drawings.

The Board rejected this claim because the contractor failed to prove that the actual conditions of the battleship differed from those in the bid documents. The Board assigned heavy weight to the testimony of one key contractor witness who had served as NASA’s head of construction at Stennis Space Center, where the B-2 test stand is located, before taking a position with the contractor. Citing his own prior experience with the battleship, he testified that NASA’s specified access method was “doable.” Although some contractor employees described the battleship as a confusing “maze,” the Board was satisfied that the maze was shown in the bid documents and that it could readily have been discovered in a routine pre-bid site visit.

The Board, however, sided with the contractor on its claim to recover the costs of cutting and welding steel reinforcements to conform to the uneven walls inside the battleship. Again, the Board relied on witness testimony to reach its conclusion. The contractor’s key witness described how the actual conditions inside the battleship differed from those shown in the bid documents and how they made the work more difficult. According to the Board, his testimony was “convincing.” While the Board also found NASA’s main witness to be credible, the Board found his responses on cross-examination to be “defensive.” The Board actually quoted his responses to questions regarding NASA’s failure to take field measurements that might have proven that the battleship walls were straight.

Lastly, in an entirely separate claim, the contractor was unable to recover for the alleged two inches of “thermal movement” of the existing B-2 test stand structure during the erection of steel structures built on top of the test stand. Yet again, the Board focused on the witness testimony. The surveyor engaged by the structural steel fabricator did not testify at the hearing, and his written testimony undermined the use of the available surveys to prove that the structure had moved. The Board was concerned that twisting of the measuring tape used by another witness might make the measurements less accurate, and the contractor’s expert witness admitted that it could. Further, the contractor’s testifying structural steel expert was not able to support the contractor’s claim that the structure had moved two inches. He asserted that the structure had moved by “up to three eighths, maybe a half inch in some cases.” The Board concluded that his testimony “hurt . . . more than it helped.”

The decision in Harry Pepper offers some helpful guidance on the use of witness testimony in differing site conditions cases. But the lessons here extend to other theories of entitlement as well. In cases that go to trial, witness credibility is often a key factor in the decision. Consider the issue early and often— during contract administration, as you prepare a request for equitable adjustment, and during a mediation or other informal settlement negotiations.