NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 09a0662n.06 No. 08-5764 FILED Sep 25, 2009 UNITED STATES COURT OF APPEALS LEONARD GREEN, Clerk FOR THE SIXTH CIRCUIT MACTEC, INC., ) ) ON APPEAL FROM THE Plaintiff-Appellee, ) UNITED STATES DISTRICT ) COURT FOR THE EASTERN v. ) DISTRICT OF TENNESSEE ) BECHTEL JACOBS COMPANY, LLC, ) OPINION ) Defendant-Appellant. ) BEFORE: NORRIS, and COLE, Circuit Judges; and ADAMS, District Judge.* COLE, Circuit Judge. Defendant-Appellant Bechtel Jacobs Company, LLC (“BJC”) appeals from the district court’s judgment following an eight-day bench trial. The district court awarded Plaintiff-Appellee MACTEC, Inc. (“MACTEC”) $9,844,319.82, plus attorney fees and interest, on several of its claims and denied all of BJC’s counterclaims. BJC asserts that the district court erred by: (1) finding unreliable the testimony of BJC’s primary fact witness; (2) accepting and adopting MACTEC’s expert testimony on its two largest claims; (3) rejecting BJC’s counterclaims; and (4) finding for MACTEC on its third-largest claim. BJC argues that the foregoing errors warrant reversal of the judgment and remand to the district court for a new trial. For the following reasons, we AFFIRM. * The Honorable John R. Adams, United States District Judge for the Northern District of Ohio, sitting by designation. I. BACKGROUND A. Factual Background 1. The DOE/BJC Contract and the BJC/MACTEC Subcontract a. Background The parties’ dispute arises from alleged breaches of a subcontract for the design and construction of a hydraulic isolation system for Solid Waste Storage Area 4 (“SWSA 4”), located in the Melton Valley area of the United States Department of Energy’s (“DOE”) Oak Ridge Reservation (“ORR”). SWSA 4 contains buried radioactive waste, and in December 1997, the DOE awarded BJC a five-year, $2.5 billion Management and Integration Contract to engineer and oversee a transition toward a closure of the ORR. On April 1, 1998, after a three-month phase-in period, BJC assumed responsibility for the ORR work. BJC subsequently awarded MACTEC a lump-sum, fixed-price, $12,231,283.00 Subcontract to design and construct a remediation system in accordance with the terms of the Record of Decision for Interim Actions for the Melton Valley Watershed (“ROD”) that was previously agreed upon and drafted by the DOE, the Environmental Protection Agency (“EPA”), and the Tennessee Department of Environment and Conservation (“TDEC”). The ROD and the Subcontract required that the remediation system include the following components: (1) an upgradient divergent trench; (2) a landfill cap consisting of six inches of vent- layer stone, contour fill, three layers of geosynthetics, a protective cover, and six inches of topsoil; (3) a collection of underdrain along the alignment of the SWSA 4 tributary at the southern edge of SWSA 4; (4) a downgradient trench (“DGT”); and (5) a wastewater treatment facility that would remove contaminated water from the DGT and deposit treated water into an adjacent Intermediate Holding Pond (“IHP”). The ROD and Subcontract also required MACTEC to remove contaminated soil and vegetation from the IHP and perform wetlands restoration. The Subcontract required MACTEC to provide BJC with a Baseline schedule (the “Baseline”) for its approval before starting work. In the context of complex construction contracts, a baseline schedule typically details the following elements: (1) the identification of the specific construction activities to be performed to complete the project; (2) cost and time estimates of each activity; (3) a determination of sequential relationships to establish the precise sequence of performance of all activities in the most efficient manner; and (4) a presentation of the sequenced activities in the form of a “network” diagram. See Philip L. Bruner & Patrick L. O’Connor, Jr., 5 Bruner & O’Connor Construction Law § 15:8 (May 2009). The Baseline directed MACTEC to complete all field work on or before November 14, 2003. However, following the tragic events of September 11, 2001, BJC issued a suspension-of-work order, which prevented MACTEC from getting the Project underway from November 8, 2001 until October 1, 2002. Once the suspension-of-work order was lifted, the parties drafted Subcontract Modification 12 (“Modification 12”), formally extending the field-work completion date to March 31, 2004. The parties also agreed to a revised baseline schedule (the “Second Baseline”), which directed MACTEC to complete all work on the Project by October 28, 2004. The Second Baseline was essentially a revised time-line for interrupted schedule elements in-process at the time of the work suspension that extended the Project-completion date by six months. b. Scheduling requirements The Subcontract required MACTEC to provide BJC with regular schedule updates using the Critical Path Method (“CPM”) to “show each essential activity in sequence to meet the Subcontract Schedule Milestones . . . .” (Subcontract SC-3, BJC App. Vol 1, 26.) The CPM method has been described as follows: Essentially, the [CPM] is an efficient way of organizing and scheduling a complex project which consists of numerous interrelated separate small projects. Each subproject is identified and classified as to the duration and precedence of the work. (E.g., one could not carpet an area until the flooring is down and the flooring cannot be completed until the underlying electrical and telephone conduits are installed.) The data is then analyzed, usually by a computer, to determine the most efficient schedule for the entire project. However, some items of work are given no leeway and must be performed on schedule; otherwise, the entire project will be delayed. These latter items of work are on the “critical path.” A delay, or acceleration, of work along the critical path will affect the entire project. Haney v. United States, 676 F.2d 584, 596 (Ct. Cl. 1982). The “critical path” has been defined as “the longest path in the schedule on which any delay or disruption . . . would cause a day-for-day delay to the project itself . . . . Those activities must be performed as they are scheduled and timely in order for the project to finish on time . . . .” Wilner v. United States, 23 Cl. Ct. 24, 245 (Cl. Ct. 1991). Because a project’s critical path continues to evolve even after work has commenced, “in order to grasp accurately the delays that a project takes on, the critical path should be updated regularly.” Wilner, 23 Cl. Ct. at 245 (citing Fortec Constructors v. United States, 8 Cl. Ct. 490, 505 (Cl. Ct. 1985)). The Subcontract set forth MACTEC’s obligations to furnish BJC with weekly updates, as follows: SUBCONTRACTOR shall promptly inform CONTRACTOR of any proposed change in the baseline schedule and shall furnish CONTRACTOR with a revised schedule network and narrative within seven (7) days after notification to the CONTRACTOR of the requested change. The CONTRACTOR shall approve any changes prior to the revised schedule being used as the [Second Baseline]. The schedule and narrative shall be kept up to date, taking into account the actual work progress and shall be updated weekly. The revised schedule and narrative shall, as determined by the CONTRACTOR, be sufficient to meet the requirements for monitoring progress. During the performance of the Work, SUBCONTRACTOR shall submit to CONTRACTOR periodic reports on the actual progress. Such progress reports shall include the following: • Weekly: A copy of the Subcontract Schedule network reflecting actual progress to date for the activities shown in the approved baseline schedule. • Weekly: A four-week look-ahead of personnel forecast by craft. • Weekly: A rolling four-week schedule showing one week actual progress and a three-week look-ahead forecast. Variation from the approved baseline schedule shall be noted and rationalized. • Weekly: A report of quantities of Work performed versus total quantities on active items of the work. • Daily: A daily report listing all personnel by craft, hours and work assignment, facilities and equipment used, materials installed, lower tier subcontractors utilized in the work, a narrative of work performed and any ES&H concerns/incidents encountered that day . . . . (Subcontract SC-3, BJC App. Vol. 1, 27.) There is no dispute that MACTEC submitted the required updated CPM schedules to BJC. However, beginning in September 2003, MACTEC started to submit CPM schedules that included a Project end-date beyond that agreed upon in the Second Baseline. BJC rejected all of MACTEC’s post-September 2003 CPM schedules and continually informed MACTEC that it would consider MACTEC to have breached the Subcontract if the Project was not put back on schedule. The Project proceeded with this contentious back-and-forth between the parties—MACTEC timely submitted a required weekly CPM schedule and requested a time extension on the Project, and BJC rejected the schedule and the request. In the context of construction projects, “acceleration” refers to a situation where a contractor must complete greater work than originally planned within the scheduled project constraints. See, e.g., Ace Constructors, Inc. v. United States, 70 Fed. Cl. 253, 281 (Fed. Cl. 2006). Acceleration also frequently occurs in the form of “constructive acceleration”—where a contractee orders the contractor to meet the current schedule in the face of excusable delays. See id. at 280 (setting forth the requirements for constructive acceleration). By directing MACTEC to adhere to the timeline set forth in the Second Baseline without even considering whether an extension was warranted, BJC placed MACTEC in a de facto condition of accelerated performance, requiring MACTEC to make additional hires, pay its employees overtime, and schedule extra shifts in order to perform the work in accordance with the Second Baseline. 2. Changes to the Subcontract a. MACTEC’s Requests for Equitable Adjustment An “equitable adjustment” is a mechanism used in fixed-price construction contracts intended to fairly compensate a contractor for a contract modification resulting from changes in circumstances occurring after the execution of the original contract. See Philip L. Bruner & Patrick L. O’Connor, Jr., 6 Bruner & O’Connor Construction Law § 19:50 (May 2009). An equitable adjustment can be an extension in the time a contractor has to complete a contract or additional monetary compensation for a change in the work required. See id. Courts have held that a contractor seeking an equitable adjustment must prove three elements—liability, causation, and resultant injury. Namely, the contractor must demonstrate that the other party was responsible for causing it to incur the additional costs that changed the course of the contract. See Blinderman Constr. Co., Inc. v. United States, 39 Fed. Cl. 529, 538 (Fed. Cl. 1997). Subsection GC-20 of the Subcontract, “Equitable Adjustment,” sets forth the formal requirements for MACTEC’s submission of a proposed Request for Equitable Adjustment (“REA”) to BJC, directing MACTEC to provide a firm fixed-price proposal for any proposed adjustment in price or schedule and a narrative addressing the details of that proposal. Over the course of the Project, MACTEC submitted more than seventy REAs to BJC. The parties successfully settled many of MACTEC’s REAs prior to trial, although they were not timely addressed and resolved. Toward the conclusion of the Project, BJC ceased negotiating with MACTEC over its REAs and other claims for additional compensation. b. Subcontract modifications The parties also formally modified the Subcontract, although only Subcontract Modifications 5, 10, and 32 are relevant to BJC’s appeal. On August 1, 2001, the parties entered into Subcontract Modification 5 (“Modification 5”), effective as of June 28, 2001. On January 19, 2001, MACTEC submitted an REA for gross inaccuracies in BJC’s topographical survey data, and Modification 5 compensated MACTEC an additional $100,248.03 for incorporating its own corrected topographic information into the design. The parties finalized Subcontract Modification 10 (“Modification 10”) on March 28, 2002, through which they agreed to increase MACTEC’s Subcontract price by $909,708.00 for new Pay Item 2.02(o), “Contaminated Vegetation Grinding,” and revised MACTEC’s “Scope of Work” accordingly. As revised, the Subcontract specifically required that “[t]rees, brush, and vegetation shall be chipped or ground and mixed with fill material under the cap[, on top of the original soil,] such that it will not cause detrimental subsidence.” (Modification 10, BJC Exs. Vol. 1, 54.) Finally, Subcontract Modification 32 (“Modification 32”), which the parties entered into on February 11, 2005, compensated MACTEC an additional $856,000.00 for costs associated with BJC’s requirement that MACTEC accelerate the Project and its repeated refusal to grant MACTEC any of its requested time extensions. Modification 32 also provided MACTEC with a schedule extension, giving it until September 8, 2004 to complete all field work, and until March 10, 2005 to finish the overall Project. 3. Events relating to the completion of the Project After the 2001 suspension-of-work order was lifted, MACTEC encountered several obstacles to completing the work on schedule. First, 2003 and 2004 were both unseasonably wet, and MACTEC was delayed by the unusually rainy weather. From November 2003 through March 2005, MACTEC requested fifty-two separate weather-related time extensions and applied for corresponding schedule updates from BJC, all of which BJC rejected. BJC also ignored MACTEC’s assertions that given the setbacks the Project had already experienced, it would be fruitless to try to design a recovery plan to try to get the Project back on schedule. On January 14, 2004, the DOE gave BJC a sixty-five- day extension for the unusually severe weather conditions that occurred in 2003, but although MACTEC advised BJC of continuing problems caused by the wet weather on-site, BJC gave MACTEC no such extension. On both December 17, 2003 and August 19, 2004, BJC wrote MACTEC letters specifically threatening to terminate the Subcontract. Notably, the fact that the Project was commissioned by the DOE made such a threat more serious because in the context of federal government contracts, a terminated contractor can lose its bonding capacity and will likely be unable to work on future federal government-run projects. BJC demanded that MACTEC achieve the un-extended completion dates specified in the Second Baseline, and MACTEC attempted to do so by re-sequencing its work. MACTEC asserts that if BJC had granted its requests for an extension, it would have waited until the work-site dried before proceeding and would not have been forced to make significant expenditures for extra materials and added labor. MACTEC also dealt with Radiation Control (“RADCON”) inspectors’ unanticipated discovery of a number of radioactivity “hot spots” on the work-site following the completion of previous remediation efforts. When these hot spots were discovered, BJC directed MACTEC to cap the affected area. Thus, MACTEC had to increase the total amount of contour fill used beneath the cap by approximately 109,786 cubic yards. As a result, the SWSA 4 cap grew approximately 17 acres—from the 94 acres set forth in BJC’s original bid design, to 111 acres total. MACTEC’s work was also affected significantly by BJC’s decision to “de-scope” a number of elements of the original design from the Subcontract. BJC deleted certain non-critical items, but its de-scoping of the wastewater treatment facility (“WTF”) is crucial to MACTEC’s claim. Specifically, the original Subcontract required MACTEC to install a DGT at the SWSA 4 cap boundary in order to collect contaminated water from the capped area to prevent it from being discharged into the local surface water, and allowed MACTEC two years to monitor the DGT’s performance. However, during the performance of the Project, BJC de-scoped the WTF, the purpose of which was to “take water that was collected from the [DGT, and] treat it” to achieve the “standards required for discharge to White Oak Creek.” (Tr. Vol. 3, 20:21-23.) By de-scoping the WTF, BJC would have to pump the DGT-water off-site to be treated at a centralized water treatment facility. MACTEC claims that the WTF was a crucial element of the DGT and asserts that without it, the DGT could not be fully operational. MACTEC asserts that BJC’s decision to de-scope this sub-element of the Subcontract denied it the means to begin operating the Project’s interrelated elements, thereby affecting its ability to adhere to the agreed-upon Second Baseline. MACTEC also argues that BJC did not tell MACTEC that it planned to de-scope the WTF until January 12, 2005, though it knew of the change in the spring of 2003. In early 2005, following the completion of MACTEC’s work on the DGT, BJC conducted a January 2005 pump test to determine whether the DGT was constructed in accordance with the Subcontract. At a meeting with regulators on June 9, 2005, BJC announced that the DGT was “defective” because the pump test had revealed that it leaked water and allowed in too much silt, causing blockages in the DGT. BJC only informed MACTEC about the planned June 9 meeting one day beforehand. Despite MACTEC’s ardent requests, it neither allowed MACTEC to attend the meeting nor granted its suggestion to delay the meeting to allow MACTEC to demonstrate to BJC that the DGT was not defective. Although the contract entitled MACTEC to turn on and operate the System (including the WTF) through a five-month wet season in order to pump water from the DGT, BJC deprived MACTEC of this entitlement by de-scoping the operation of the WTF from the Subcontract based on its internal decision to treat all of the SWSA 4 collected water at a centralized WTF constructed by another subcontractor. After completing a substantial second round of tests, many of which were “inconclusive,” BJC added several more pumps and sumps to the DGT and upgraded the electrical system and conveyance piping between the sumps. However, none of these changes to the structure affected the flow of the water being generated and treated, and BJC never altered the overall physical structure of the MACTEC DGT. Ultimately, BJC’s corrective measures successfully removed excess silt material from the DGT sumps, but not from the DGT itself. Following BJC’s corrective measures, the DGT was fully operational, and regulators approved it for use three months later. At that point, BJC discovered possible leaks in the DGT caused by external sources and conducted ten off-site leak tests, which were directed at potential water sources outside of the capped area. BJC earned one hundred percent of all of the Performance-Based Incentives associated with MACTEC’s Project, a total of $2,276,400.00. MACTEC originally bid $12,231,283.00 on the Project, and after settling certain REAs and making various Modifications, BJC paid MACTEC $13,888,112.00. But BJC refused to pay MACTEC for its earned Subcontract balance, retainage, REAs, and various extra work items because it claimed that the DGT was defective, and that MACTEC never operated the WTF during a wet season as directed by the Subcontract. Given MACTEC’s $31,991,000.00 in out-of-pocket costs incurred to perform the Subcontract in accordance the accelerated schedule, MACTEC asserts that it lost $18 million completing the Project. B. Procedural Background 1. MACTEC’s suit On July 6, 2005, MACTEC sued BJC in the United States District Court for the Eastern District of Tennessee, seeking $2,714,086.00 for the unpaid Subcontract balance. MACTEC also sought more than $5 million in additional damages arising from seventeen unresolved REAs and three general claims. Generally, MACTEC’s outstanding REAs and claims for additional compensation consist of: constructive acceleration costs; damages for BJC-directed changes to MACTEC’s planned Project sequence; and costs associated with the differing site conditions encountered by MACTEC. On April 18, 2007, MACTEC amended its complaint to include the following five claims: (1) breach of contract; (2) quantum meruit; (3) unjust enrichment; (4) breach of implied covenant of good fath and fair dealing; and (5) violation of the Tennessee Prompt Pay Act of 1991, Tennessee Code Annotated §§ 66-34-101, et seq. (“Prompt Pay Act”). On November 29, 2006, BJC asserted nine counterclaims, requesting $3,508,391.00 in damages allegedly incurred to repair and finish MACTEC’s defective and incomplete work. 2. Bench trial The district court conducted an eight-day bench trial occurring from August 27 to September 6, 2007. During the trial, MACTEC called six fact witnesses and two expert witnesses: (1) Billy Reid, Vice President of MACTEC Development Corporation, a subsidiary of MACTEC, who worked with MACTEC’s designers in preparing MACTEC’s bid and estimate for the Project; (2) Matt Foster, the Project Control Analyst, Project Manager, and Scheduler, who visited the Project site several times a week until October 2003, when, at BJC’s request, he was replaced; (3) Mark Cade, MACTEC’s Field Engineer primarily responsible for handling the Project’s field changes, who was physically located on-site; (4) Jim Bowman, MACTEC’s Project Superintendent, who visited the Project site daily; (5) Curtis Lowther, an accountant with over ten years of accounting experience in the construction industry and knowledge of MACTEC’s accounting system; (6) Ron Lewis, a MACTEC engineer who prepared the groundwater model for the Project; (7) Dr. Peter Shanahan, an expert in groundwater hydrology and environmental engineering; and (8) A. Joseph DuPree, a cost and scheduling expert. BJC called four fact witnesses and one expert witness: (1) Robert Spurling, a former BJC employee who was a Task Lead and Project Manager for SWSA 4; (2) Frank Cater, a BJC senior engineer, involved with the Project beginning in 2003, and Task Lead from June 2005 on; (3) Michael Sholley, a BJC engineer who became involved in the Project in August 2005; (4) Mary Beth Blair, BJC’s planning and Budget Manager; and (5) George Pinder, a civil and environmental engineer and a director of the Research Center for Groundwater Remediation Designs. 3. District court decision After the trial, each party submitted extensive Proposed Findings of Fact (“Findings”) and Conclusions of Law (“Conclusions”) for the district court’s consideration. Though it had initially sought $5,044,963.00 in damages, plus attorney fees and interest, following the bench trial, MACTEC amended its requested damages to a total of $12,392,866.80. a. MACTEC’s claims On May 19, 2008, the district court issued a judgment in favor of MACTEC and awarded $9,844,319.82 in damages, plus attorney fees and interest. MACTEC recovered on all but two of its claims—REA 54, the “haul road claim,” and REA 55, the “CLA claim.” The district court concluded that: (1) the Subcontract was a “performance contract,” meaning that MACTEC was tasked with selecting the materials, means, and methods for accomplishing the agreed-upon objective; (2) BJC materially breached the Subcontract by continually interfering with MACTEC’s ability to perform and de-scoping material elements of the Project; (3) BJC breached the covenant of good faith and fair dealing by refusing to grant MACTEC’s requests for weather-related time extensions, especially when BJC itself was awarded such extensions by the DOE and constructively accelerated the Project by forcing MACTEC to stay on schedule despite the substantial number of excusable delays; (4) BJC acted in bad faith; (5) alternatively, MACTEC was entitled to recover for unjust enrichment; (6) alternatively, MACTEC was entitled to recover in quantum meruit; and (7) MACTEC was entitled to recover its costs and attorney fees under Tennessee’s Prompt Payment Act. Importantly, in concluding that BJC did not act in good faith, the court specifically determined that: BJC did not deal in good faith, with common fairness, or common equity by, among other things (1) repeatedly threatening MACTEC with termination when there was no basis to do so; (2) failing to grant legitimate time extensions for unusually severe weather while BJC knew that MACTEC was suffering from such delays and after having itself received the same relief from DOE; (3) declaring to the regulators that MACTEC’s DGT was defective when in fact it was not, and doing so without seeking or incorporating MACTEC’s input; (4) refusing to permit MACTEC to develop the sumps in the DGT so that it could operate the WTF, and instead demanding a “silt free” DGT[,] which it acknowledged was technically impossible; (5) declining MACTEC’s request to participate in the June 9, 2005 presentation to the regulators regarding the DGT; (6) forcing MACTEC to perform a completely new topographical survey without a time extension while holding MACTEC to the RDR milestone date; (7) holding MACTEC to unreasonable schedule deadlines, thereby resulting in significant increased costs to MACTEC, so that, in part, BJC could obtain its own performance based incentives that totaled in excess of $2,250,000; and (8) informing MACTEC for the first time that BJC elected to delete the WTF on January 12, 2005, although BJC had internally concluded to delete the WTF as early as April 2003. (ROA Vol. 1, 1489-90, ¶ 619.) b. BJC’s counterclaims The district court also concluded that BJC could not recover on any of its counterclaims because: (1) BJC failed to prove that its requested damages resulted from any breach of the Subcontract attributable to MACTEC; (2) BJC improperly took control over the Project; (3) BJC de- scoped the System’s WTF, making MACTEC’s Subcontract performance impossible; (4) BJC unilaterally changed the Subcontract’s testing procedures and imposed a more stringent performance requirement than that which was set forth in the Subcontract; (5) BJC unjustifiably spent over $2.7 million “experimenting” with the system—i.e., conducting pump tests and leak tests—rather than allowing MACTEC time to “tinker” with it, as directed by the Subcontract; (6) MACTEC’s claim for Subcontract balance and retainage included a credit for some of BJC’s claims; and (7) BJC failed to establish the value of its backcharges. The district court also rejected BJC’s post-trial request that MACTEC be investigated by the DOE’s Office of Inspector General or by the United States Department of Justice for an alleged violation of the False Claims Act, noting that the claim was “another example of [BJC’s] bad faith.” (ROA Vol. 1, 1504, ¶ 664.) C. BJC’s appeal BJC appealed, claiming that the district court erred by: (1) unfairly adopting nearly all of MACTEC’s proposed Findings and Conclusions to conclude generically that BJC’s principal fact witness lacked the requisite knowledge to refute MACTEC’s witnesses’s accounts; (2) accepting the flawed analysis by and conclusions of MACTEC’s damages expert; and (3) failing to address substantively seven of BJC’s nine counterclaims. II. STANDARD OF REVIEW On appeal from a bench trial, we review the district court’s findings of fact for clear error and its conclusions of law de novo. Pressman v. Franklin Nat’l Bank, 384 F.3d 182, 185 (6th Cir. 2004). Further, we review mixed questions of law and fact de novo. See Paul Revere Life Ins. Co. v. Brock, 28 F.3d 551, 553 (6th Cir. 1994). “A finding of fact is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” Coy/Superior Team v. BNFL, Inc., 174 F. App’x 901, 905 (6th Cir. 2006) (internal quotation marks and citations omitted). When the district court’s findings rest on credibility determinations, Federal Rule of Civil Procedure 52 demands even greater deference to the district court. See Coy/Superior Team, 174 F. App’x at 905-06 (citing Anderson, 470 U.S. at 575; Hamilton, 243 F.3d at 997-98; In re Cleveland Tankers, Inc., 67 F.3d 1200, 1205 (6th Cir.1995)). However, we need not accept factual findings that result in a misapplication of governing law or otherwise do not permit meaningful appellate review. See Pullman-Standard v. Swint, 456 U.S. 273, 292 (1985). Nor must we accept findings that are “utterly deficient in other ways.” United States v. Microsoft Corp., 253 F.3d 34, 118 (D.C. Cir. 2001). “In such cases, we vacate and remand for further factfinding.” Id. (citing 9 Moore’s Fed. Prac. § 521.12[1] (Matthew Bender 3d ed. 2000); 9A Charles Wright & Arthur R. Miller, Fed. Prac. & Pro. § 2577, at 514-22 (2d ed. 1995)). Here, we construe the parties’ claims in accordance with the terms of the Subcontract, which expressly provide that in the event of a dispute, the Subcontract must be interpreted “in accordance with the federal law of government contracts including decisions enunciated by federal judicial bodies, boards of contract appeal, and quasi-judicial agencies of the federal Government.” (BJC App. Vol. 1, 18-19.) The Subcontract further states that, “[t]o the extent that the federal law of government contracts is not dispositive, the laws of the state in which the Work is primarily performed[, in this case, Tennessee,] shall apply.” (BJC App. Vol. 1, 19.) III. ANALYSIS A. BJC has forfeited claims not raised on direct appeal As a threshold matter, we decline to consider any claims that BJC did not explicitly raise on appeal. Certain claims that the district court resolved, which BJC did not address, include: Subcontract Balance ($2,726,398.20), SCN 41, REAs 50-57, 59, 60, 63-66, 71, and 73. BJC also did not address the district court’s denial of its requested backcharges for experimenting with the DGT pumping system ($2,708,080.00), and conducting leak tests and other efforts aimed at counteracting the purported water infiltration into the DGT ($314,831.00), or its grant of MACTEC’s counts for unjust enrichment, quantum meruit, attorney fees, bad faith, and the violation of the Tennessee Prompt Pay Act. Federal Rule of Appellate Procedure 28(a) requires that an appellant’s brief include a “‘statement of the issues presented for review,’ and ‘[a]n argument’ on each issue presented.” Bickel v. Korean Air Lines Co., Ltd., 96 F.3d 151, 153 (6th Cir. 1996) (citing Fed. R. App. P. 28(a)). “We normally decline to consider issues not raised in the appellant’s opening brief.” Priddy v. Edelman, 883 F.2d 438, 447 (6th Cir. 1989) (citing Wright v. Holbrook, 794 F.2d 1152, 1157 (6th Cir. 1986)); see also McPherson v. Kelsey, 125 F.3d 989, 995-96 (6th Cir. 1997) (“It is not sufficient for a party to mention a possible argument in the most skeletal way, leaving the court to . . . put flesh on its bones.”) (citing Citizens Awareness Network, Inc. v. United States Nuclear Regulatory Comm’n, 59 F.3d 284, 293-94 (1st Cir.1995) (citation omitted)). Under the circumstances of this case, we see no reason to depart from that policy. Therefore, we can decide the instant appeal by limiting our review and analysis to MACTEC’s three largest claims—(1) the “contour fill” claim; (2) the “extended program costs claim”; and (3) REA 69, the “additional vent-layer stone” claim— the details of which are set forth below. 1. Contour fill overrun claim “Contour fill” consists of uncontaminated (“clean”) dirt obtained from a “borrow pit” that was placed over the vent-layer stone to construct the cap. “Borrow pit” is a term used in construction and civil engineering to describe an area where material (usually soil, gravel or sand) is dug for use at another location. The term is literal—meaning a pit from where material is borrowed. MACTEC sought to recover costs associated with amounts of additional contour fill that it did not anticipate in its bid, explaining that BJC provided MACTEC with inaccurate topographical surveys in 2001, and that it was forced to spend significant unanticipated resources, time, and money to deal with the impacts caused by numerous unanticipated radiation hot spots on the growing cap. MACTEC sought $2,736,964.00 for the costs incurred from the added contour fill, and the district court awarded it $3,010,661.48. 2. Extended program costs claim MACTEC also sought to recover for certain additional costs incurred following the agreed- upon Project completion date—termed “extended program costs.” MACTEC asserted that BJC’s accelerated schedule failed to account for the unexpected impacts that prevented MACTEC from performing its work in accordance with both the Baseline and the Second Baseline. MACTEC sought $1,343,319.86 in damages on this claim, and the district court awarded it $916,300.00. 3. Additional vent-layer stone claim (REA 69) The “vent layer” is the first layer placed on the pre-existing ground surface (or in some locations, on top of other contaminated materials placed by MACTEC that were secured underneath the cap), consisting of a minimum six-inch thick layer of stone providing a continuous path for any gases emitted from the underlying burial ground to escape without damaging the cap. REA 69, which was first submitted by MACTEC in its July 2007 Addendum to MACTEC’s original Damages Assessment Report, sought $920,500.00 for: (1) the cost of the additional vent-layer stone required by the site conditions MACTEC encountered when BJC refused to grant its requests for time extensions to accommodate the unusually wet 2003 and 2004 weather ($569,603.00 for 56,828 additional tons of stone—160% more than was estimated in MACTEC’s bid); and (2) the cost of labor to place the additional vent-layer stone (250 hours each for twelve field personnel and placement equipment, plus up to 125 hours each for MACTEC management personnel). The district court awarded MACTEC $851,631.88 for the additional vent-layer stone claim. B. The district court’s adoption of many of MACTEC’s proposed Findings and Conclusions does not warrant reversal BJC contends that the district court’s decision should be reversed and the case remanded because the district court focused solely on MACTEC’s “side of the story.” (Brief of Appellant BJC (“BJC Br.”) 15.) BJC also asserts that this Court should adopt a heightened standard of review in considering those Findings and Conclusions in the district court’s decision that were adopted from MACTEC’s proposed Findings and Conclusions. MACTEC counters that the court did not engage in a “wholesale or verbatim adoption of MACTEC’s proposed findings,” and that regardless, the decision may only be reversed for clear error, which did not occur. (Br. of Appellee MACTEC, Inc. (“MACTEC Br.”) 32-34.) We have expressly disapproved of a court’s verbatim adoption of findings of fact submitted by counsel. Kilburn v. United States, 938 F.2d 666, 672 (6th Cir. 1991) (“Appellate courts generally frown on the wholesale adoption of findings of fact and conclusions of law submitted by one of the parties.”). However, in so doing, we have clarified that: [t]he fact that proposed findings of fact, prepared and submitted by the successful attorneys, have been adopted by the trial court does not detract from their legal force or effect. When adopted, such findings become the findings of the court, and are entitled to the same respect as if the judge . . . had drafted them. Kilburn, 938 F.2d at 672 (citing O’Leary v. Liggett Drug Co., 150 F.2d 656, 667 (6th Cir. 1945)). Here, it is undisputed that the district court’s decision incorporates many of MACTEC’s Findings and Conclusions. Nevertheless, 335 of the district court’s 515 Findings cite witness testimony in support of the Finding, and 235 of those citations are to BJC witnesses. Morever, the district court makes fourteen Findings and eleven Conclusions addressing directly various arguments by BJC. Thus, although the district court adopted more of MACTEC’s proposed Findings and Conclusions than BJC’s, BJC has pointed to nothing indicating that the district court neglected to carefully consider BJC’s position in making its painstakingly thorough decision, and its Findings are entitled to deference. Woolridge v. Marlene Indus. Corp., 875 F.2d 540, 544 (6th Cir. 1989) (finding support for special master’s verbatim adoption of a defendant’s proposed Findings and Conclusions because “all parties had equal opportunity to submit proposed reports for the special master’s consideration and did so”). Additionally, we reject BJC’s argument that even if the district court’s adoption of the majority of MACTEC’s Findings and Conclusions does not compel us to remand, we should at least scrutinize the decision more closely than we would had the district court adopted equally the proposed Findings and Conclusions of both parties. We have previously held that BJC’s proposed “close scrutiny” is not warranted. See Kilburn, 938 F.2d at 672 (“[Plaintiff] next argues that, because the district court adopted the defendant’s findings of fact and conclusions of law, we should more closely scrutinize its factual findings. We disagree.”). Thus, as is the case in our review of all bench trials, we review the district court’s findings of fact for clear error and its conclusions of law de novo. See Pressman, 384 mschultz@example.com. C. The district court did not err in determining that BJC’s key fact witness was less credible than MACTEC’s fact witnesses, and isolated misstatements in its Findings do not warrant reversal 1. The district court did not err in determining that Robert Spurling did not have adequate first-hand knowledge of the Project to be deemed credible when compared with MACTEC’s fact witnesses As noted above, BJC proffered four fact witnesses at trial—Robert Spurling, Frank Cater, Michael Sholley, and Mary Beth Blair. Spurling was BJC’s principal fact witness, and he testified directly as to fifteen of MACTEC’s nineteen REA claims and five of BJC’s counterclaims. In fact, he was the sole witness for many of these claims. Spurling testified that he joined BJC in April 1998, after BJC took over the contract for the environmental cleanup work at the ORR. From 1998 to December 2000, Spurling was the Project Manager on two of BJC’s other Tennessee-area remediation projects, at which point he was put on the SWSA 4 Project as the Subcontract Technical Representative (“STR”) through design, and as the Task Lead (effectively a “Deputy Project Manager”). (Tr. Vol. 9, 133:8-15.) He explained that he was the STR only during the design phase, and that in November 2003, he became Task Lead for both the SWSA 4 Project and the balance of the Melton Valley cap work. Spurling also testified that after becoming Task Lead, he participated in the Project’s monthly “Core Team Meetings,” which included representatives from the DOE, EPA, and TDEC, as well as the BJC project managers from each of the units addressed under the ROD. Spurling explained that as of May 2005, he “went to the site daily, maybe a couple of times a day, to check in with [BJC] folks,” especially when BJC was running a pump test to evaluate the effectiveness of the MACTEC-designed DGT. (Tr. Vol. 9, 173: 22-25.) Further, he testified that during the summer of 2004, he traveled on the Project’s haul road “many times — daily.” (Tr. Vol. 10, 49:6-19.) The district court found Spurling less credible than MACTEC’s fact witnesses, noting that Spurling was “admittedly only involved, on a more regular basis, with the completion of the SWSA 4 work.” (RPA Vol. 1, 72 ¶ 322.) The court reasoned: 318. . . . BJC cites to only one instance that is based on Robert Spurling’s personal experience. This testimony was based on traveling through the particular area only “three, maybe four times during the two-month period affected.” 319. Spurling was initially the [STR] for the design phase of SWSA 4. In 2000, his responsibilities changed to include developing an accelerated closure plan and the related scope of work for all the other capping activities within Melton Valley. In 2003, he became the “Task Lead” for all the projects in the entire Melton Valley site. 320. Spurling relied upon alleged out of court statements made by BJC’s SWSA 4 STRs and various regulators and DOE officials during his testimony. 321. The court specifically asked BJC whether it was going to present a regulatory official to testify to these out of court statements. BJC replied: “[w]e are planning to Your Honor.” They never did. 322. BJC claims, without citing to any evidence, that Spurling was “responsible for the day-to-day operations, was at the SWSA 4 site on a daily basis, and was routinely involved in communications and discussions between BJC and MACTEC about completion of the work at SWSA 4.” Yet, the court finds that there is absolutely no evidence in the record to substantiate Spurling’s involvement on the SWSA 4’s day-to-day issues. To the contrary, the evidence indicates that Spurling was heavily involved in several other Melton Valley projects while he was simultaneously overseeing work on SWSA 4. The court further finds that Spurling was admittedly only involved, on a more regular basis, with the completion of the SWSA 4 work. The completion of the SWSA 4 work occurred in early 2005 . . . . 325. I find that BJC did not offer any fact witnesses that had knowledge of the Project during its performance. BJC did not provide testimony from its superintendents, engineers, quality supervisors or STRs. Outside of Spurling - who had limited first-hand knowledge of the Project given his involvement in several other Melton Valley projects - BJC provided the testimony of witnesses who were engaged after the construction work was completed. BJC’s fact witnesses lack the requisite knowledge to credibly refute MACTEC’s witnesses’ accounts of BJC’s daily impacts and the damages suffered by MACTEC. (ROA Vol. 1, 1401-1402, ¶¶ 318-22, 325) (internal citations omitted). BJC argues that the above Findings were in error because the district court clearly neglected to acknowledge Spurling’s testimony as to several specific events showing his personal involvement and credibility when compared to MACTEC’s fact witnesses. We disagree. “When a trial judge’s finding is based on his decision to credit the testimony of one of two or more witnesses, each of whom has told a coherent and facially plausible story that is not contradicted by extrinsic evidence, that finding, if not internally inconsistent, can virtually never be clear error.” Madden v. Chattanooga City Wide Serv. Dep’t, 549 F.3d 666, 676 (6th Cir. 2008); see also Anderson, 470 U.S. at 573-75. It is undisputed that in this case the district court oversaw lengthy and contentious litigation by the parties prior to issuing its incredibly detailed decision. In fact, before drafting the decision, the district court: accepted pre-hearing briefs from both parties; received evidence over an eight-day bench trial where he heard testimony from several witnesses on both sides of the dispute; considered testimony from designated 30(b)(6) depositions; admitted and reviewed over 1500 exhibits; received and reviewed objections from both parties regarding the proffered exhibits; received in excess of 1200 proposed Findings and Conclusions from MACTEC and BJC; and allowed the parties to supplement the record with any additional filings after the trial, which they both did. Although in its briefs BJC correctly points out certain inconsistencies and misstatements occurring throughout the decision (some of which relate to the district court’s consideration of Spurling’s testimony), when placed in the context of the entire 170-page decision, we conclude that these inaccuracies were relatively minor, and did not prejudice BJC such that they would warrant reversal. See Kotteakos v. United States, 328 U.S. 750, 776 (1946) (noting that an error is harmless unless it is highly probable that it had a substantial and injurious effect or influence on the outcome of the trial). Moreover, to the extent that Spurling testified about statements made by regulators and failed to honor the court’s request that BJC call a regulator to testify directly as to those statements, it effectively hindered itself from proffering testimony by a witness that the court would find more credible than Spurling. Under the circumstances, the district court did not clearly err in finding that Spurling lacked personal involvement in the Project. 2. Any inconsistent statements by the district court regarding Spurling were harmless error BJC also asserts specifically that Findings 318 and 128 were contradictory misstatements, and that the court’s clear error as to these Findings “taints the entire Decision” and warrants reversal. (BJC Br. 22-24.) The Findings at issue relate to REA 54, MACTEC’s “haul road claim,” which sought $426,400.00 for the impact of money and time lost from mandated one-way traffic on the Project’s approximately three-mile haul road, and which the district court ultimately denied. MACTEC used the Project’s haul road to transport contour fill and protective cover from the borrow pit to the SWSA 4 site. The district court’s specific Findings on the REA provide: 318. On the other hand, BJC cites to only one instance that is based upon Robert Spurling’s personal experience. This testimony was based on traveling through the particular area only “three, maybe four times’ during the two-month period affected.” (ROA Vol. 1, 1401, ¶ 318) (emphasis added). 128. Even on the most productive day (July 16), MACTEC claims that each of its trucks spent at least 15 to 16 minutes per round trip waiting to get past the one-way stretch. MACTEC’s Project Engineer, Mark Cade, testified that “the longest period of time that [he] experienced waiting on the flag men” was “fifteen, twenty minutes.” In contrast, Robert Spurling testified that any delay was far less (“a couple of minutes at most”). Spurling traveled through that area on average three times per day. (ROA Vol. 1, 1367, ¶ 128) (emphasis added) (internal citations omitted). BJC asserts that the court’s error in setting forth these two contradictory statements—the first of which was actually made by MACTEC employee Mark Cade and was wrongly attributed to Spurling—is prejudicial and warrants reversal of the entire decision. Specifically, BJC claims that because BJC relied so heavily on Spurling’s testimony to present its position, the district court’s decision to discredit him completely was unfairly prejudicial. An error is harmless “if one cannot say, with fair assurance . . . that the judgment was not substantially swayed by the error.” Kotteakos, 328 U.S. at 765. Despite the district court’s misstep in attributing testimony about the haul road to Spurling when it was actually Cade’s, this inconsistency was isolated such that the decision was certainly not “substantially swayed by the error.” See id. Moreover, the district court actually held for BJC, and against MACTEC, on the haul road claim, making it even less likely that the district court’s misstatement prejudiced BJC. See Gulf Refining Co. v. Fetschan, 130 F.2d 129, 135 (6th Cir. 1942) (holding that an alleged error committed by the district court did not prejudice the appellant because the appellant prevailed on the underlying issue to which the error related). Accordingly, we reject BJC’s argument on this issue. D. The district court did not abuse its discretion in finding DuPree qualified to testify as to MACTEC’s contour fill claim, and did not err in adopting DuPree’s CPM analysis of MACTEC’s extended program costs claim As explained above, MACTEC hired as its damages expert A. Joseph DuPree, a consultant and “cost and scheduling expert” who had testified as an expert in previous court proceedings. Prior to trial, DuPree submitted a June 15, 2007 Damages Assessment and a July 20, 2007 Addendum that outlined the substance of MACTEC’s claims. DuPree’s analysis applied the CPM approach, which has been accepted by the United States Court of Federal Claims as the most accurate way to calculate delay damages in complex construction projects. See Youngdale & Sons Const. Co., Inc. v. United States, 27 Fed. Cl. 516, 550 (Fed. Cl. 1993). The Court of Federal Claims has explained the utility of CPM in analyzing construction-related damages as follows: In order to calculate delay damages, it is necessary to determine which work items on the . . . project were in the critical path and the time period that these work items remained on the critical path. The reason that the determination of the critical path is crucial to the calculation of delay damages is that only construction work on the critical path ha[s] an impact upon the time in which the project was completed . . . . Delay involving work not on the critical path generally has no impact on the eventual completion days of the project. See Youngdale, 27 Fed. Cl. at 550 (quoting G.M. Shupe, Inc. v. United States, 5 Cl. Ct. 662, 728 (Cl. Ct. 1984)). At trial, DuPree underwent two full days of questioning about his Damages Assessment and Addendum. DuPree explained that he “addressed the performance of the project through review of contract documents, estimated prices and actual returns on costs [gleaned from MACTEC’s accounting software], scheduled and actual events, and gathering of anecdotal information from the subcontract’s performers[, such as MACTEC employees Reid, Foster, Cade, and other design engineering personnel].” (BJC Exs. Vol. 2, 85.) DuPree also based his assessment on information learned from “[d]iscussions held with MACTEC representatives . . . [,] information gathered on the structure of MACTEC’s schedules (relationship between/among elements) . . .[, and] meetings with] MACTEC representatives to assess the impacting events affecting the prosecution of the Contract schedule.” and their effects as compared to the Subcontract Modifications and pending REAs. (BJC Exs. Vol 2, 85.) According to DuPree, the combination of the September 11, 2001 work suspension, the nearly two years of unusually wet weather, MACTEC’s continual Project acceleration, BJC’s de- scoping of certain items, and the emergence of unanticipated hot spots, caused MACTEC to suffer more than $5,142,345.92 in damages for unsettled REAs and claims. The district court admitted and adopted DuPree’s testimony over BJC’s objections that he was unqualified to serve as an expert on MACTEC’s damages, explaining: 30. MACTEC proffered Joe DuPree as a cost and scheduling expert. Over the past 30 years DuePree has updated, monitored and prepared construction schedules. As the owner of his own consulting firm[, DuPree Associates], DuPree has developed contract claims in the construction industry associated with acceleration, extended program costs, delays, disruption, differing site conditions, changes in scope, as well as other impact claims. While preparing the extended program cost claim, DuPree performed a critical path method (“CPM”) analysis of the SWSA 4 schedules. 31. BJC objects to DuPree’s testimony as an expert witness. The admissibility of expert testimony in federal court is primarily governed by Federal Rule of Evidence 702[,] . . . The reliability of proffered expert testimony must involve an initial determination that the witness seeking to render the opinion is qualified to render an expert opinion in the designated area. Here, DuPree has [thirty] years experience preparing construction claims associated with acceleration, extended program costs, delays, disruption, differing site conditions, changes in scope, as well as other impact claims. He is clearly qualified to give expert testimony in his field of expertise in this case. (ROA Vol. 1, 1342) (internal citations omitted). BJC argues that the admission of DuPree’s testimony was an abuse of discretion because DuPree was unqualified to opine on MACTEC’s contour fill claim, and because