Freeman General, Inc., Appellant, v. the United States, Appellee, 918 F.2d 188 (Fed. Cir. 1990)

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U.S. Court of Appeals for the Federal Circuit - 918 F.2d 188 (Fed. Cir. 1990)

Oct. 31, 1990


Before NIES, Chief Judge, and SKELTON and BENNETT, Senior Circuit Judges.

NIES, Chief Judge.


Freeman General, Inc. (FGI) appeals from the final decision of the Armed Services Board of Contract Appeals (ASBCA No. 34611), which held that although FGI established its entitlement to an equitable adjustment because it encountered a differing site condition which increased the cost of performing the required work, FGI had failed to prove damages. We vacate and remand with instructions to award FGI an adjustment in an amount up to $78,343.00.

Analysis

The board is correct that FGI failed to prove any specific amount of damages and is not entitled to retry its case. Apparently the company does not have the necessary records to establish the difference between what it cost to do the work and what it would have cost to perform the work had the differing condition not been encountered.

On the other hand, the government estimated the claim for the extra work at $78,343. The board erred in refusing to consider this evidence which appears in documents of record. We conclude that this evidence is sufficient to support an award up to this amount under a "jury verdict" theory of arriving at a fair approximation of the damages. See S.W. Electronics & Mfg. Corp. v. United States, 655 F.2d 1078, 1088-89 (Ct. Cl. 1981); Dawco Constr., Inc. v. United States, 18 Cl.Ct. 682, 698 (1989).

Costs

Each party shall bear its own costs and attorney fees.