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Lawyers, other representatives, expert(s), tribunal’s secretary

Final Award

TABLE OF SUBMISSION ABBREVIATIONS

CPH Claimant’s post-hearing submission dated 27 October 2017
CSOC Claimant’s statement of claim dated 31 March 2017
CSOD Claimant’s revised statement of defense filed 22 August 2017
CSOR Claimant’s revised statement of reply filed 22 August 2017
RPH Respondent’s post-hearing submission dated 27 October 2017
RSOC Respondent’s statement of claim dated 31 March 2017
RSOD Respondent’s statement of defense dated 21 July 2017
RSOR Respondent’s statement of reply dated 16 August 2017
The arbitral tribunal makes this award further to the mandatory provisions of the Federal Arbitration Act and Article 31 of the Rules of Arbitration of the International Chamber of Commerce ("ICC") in force as from 1 January 2012 (the "Rules"). These proceedings are administered by the ICC International Court of Arbitration (the "Court") in accordance with the Rules.

1. PARTIES

1.1.
Claimant in this arbitration is Maintenance Enterprises, LLC:

Attn: Mr. A. Byrd Harelson
52410 Clarke Road
White Castle, LA 70788, USA
Tel. +1 225 545 4151
Email: bharelson@meimail.net

Claimant is a Louisiana limited liability company.

1.2.
Claimant is represented by:

Mr. Richard J. Tyler
Mr. Michael C. Drew
Mr. Christopher D. Cazenave
Jones Walker LLP
201 St. Charles Avenue, Suite 4900
New Orleans, LA 70170, USA
Tel. +1 504 582 8000
Fax+1 504 582 8583
Email: rtyler@joneswalker.com
mdrew@joneswalker.com
ccazenave@joneswalker.com

Mr. Joseph P. Henner
Jones Walker LLP
One Midtown Plaza, Suite 1030
1360 Peachtree Street, NE
Atlanta, GA 30309, USA
Tel. +1 404 870 7500
Fax+1 404 870 7501
Email: jhenner@joneswalker.com

1.3.
Respondent is Orascom E&C USA Inc.:

Attn: Mr. Nabil Ghantous
Executive Vice President
6862 Elm Street, Suite 400
McLean, VA 22101, USA
Tel. +1 703 584 0120
Email: nabil.ghantous@orascom.com

Respondent is a Delaware corporation.

1.4.
Respondent is represented by:

Ms. Alison Ashford
Seyfarth Shaw LLP
620 Eighth Avenue
New York, NY 10018, USA
Tel.+1 212 218 5500
Fax+1 212 218 5526
Email: aashford@seyfarth.com

Ms. Sara Beiro Farabow
Mr. Steven J. Kmieciak
Mr. Anthony LaPlaca
Seyfarth Shaw LLP
975 F Street, NW
Washington, DC 20004, USA
Tel. +1 202 463 2400
Fax +1 202 828 5393
Email: sfarabow@seyfarth.com
skmieciak@seyfarth.com
alaplaca@seyfarth.com

Mr. Mark L. Johnson
Seyfarth Shaw LLP
233 South Wacker Drive, Suite 8000
Chicago, IL 60606, USA
Tel.+1 312 460 5627
Fax+1 312 460 7627
Email: maiohnson@seyfarth.com

2. ARBITRAL TRIBUNAL

2.1.
The parties agreed that this matter should be submitted to a three-member arbitral tribunal.
2.2.
The co-arbitrator nominated by Claimant pursuant to Article 12(4) of the Rules is Mr. John W. Hinchey:

JAMS
1155 F Street, NW, Suite 1150
Washington, DC 20004, USA
Tel.+l 202-942-9180
Fax+1 202-942-9186
Email: jhinchey@jamsadr.com

2.3.
The co-arbitrator nominated by Respondent pursuant to Article 12(4) of the Rules is Ms. Katherine Hope Gurun:

JAMS
620 Eighth Avenue, 34th Floor
New York, NY 10018, USA
Tel.+l 212 751 2700
Fax+1 212 751 4099
Email: kgurun@jamsadr.com

2.4.
The president of the arbitral tribunal is Ms. Jennifer Kirby:

Kirby
68 rue du Faubourg Saint-Honoré
75008 Paris, France
Tel. +33 1 42 74 64 55
Fax +33 1 73 79 28 55
Email: jennifer.kirby@kirbyarbitration.com

2.5.
On 3 October 2016, the Secretary General of the Court confirmed the co-arbitrators pursuant to Article 13(2) of the Rules.
2.6.
On 1 December 2016, the Court directly appointed Ms. Kirby as president of the arbitral tribunal pursuant to Article 13(3) of the Rules.

3. SECRETARIAT OF THE COURT

The Counsel in charge of this file at the Secretariat of the Court is Ms. Asli Yilmaz:

ICC International Court of Arbitration
33-43 avenue du President Wilson
75116Paris, France
Tel. +33 1 49 53 28 32
Fax +33 1 49 53 29 33
Email: ica5@iccwbo.org

4. DISPUTE RESOLUTION PROVISIONS

4.1.
Article 15 of the Construction Contract dated 9 June 2014 and signed by the parties (the "Upstream Contract" or the "Contract") provides as follows:

ARTICLE 15.

DISPUTE RESOLUTION

15.1 Good Faith Resolution

The Parties agree to make a diligent, good faith attempt to resolve any Dispute. If the representatives of the Parties are unable to resolve a Dispute within fifteen (15) days (or such longer period of time as may be reasonable under the circumstances and is mutually agreed to by the Parties) after notice from one Party to the other, such Dispute shall be submitted promptly to a senior officer of each Party who shall meet, in person or by telephone, not later than fourteen (14) days after the date such Dispute was submitted to them and shall issue a written opinion with respect to the Dispute within ten (10) days thereafter. In the event that the officers cannot resolve the Dispute, such Dispute shall be submitted to the Dispute Adjudication Board ("DAB") described in Section 15.2.

15.2 Dispute Adjudication Board

The Parties agree to establish a DAB in accordance with the Dispute Board Rules of the International Chamber of Commerce (the "Rules"), which are incorporated herein by reference. The DAB shall have three members appointed in this Contract or appointed pursuant to the Rules.

All disputes arising out of or in connection with the present Contract shall be submitted, in the first instance, to the DAB in accordance with the Rules. For any given dispute, the DAB shall issue a Decision in accordance with the Rules. For disputes involving less than Two million dollars ($2,000,000.00), the dispute shall be submitted to a single member of the DAB who shall have been pre-selected to hear disputes under this amount.

If any Party fails to comply with a Decision when required to do so pursuant to the Rules, the other party may refer the failure itself to arbitration under the Rules of Arbitration of the International Chamber of Commerce by one or more arbitrators appointed in accordance with said Rules of Arbitration.

If any Party sends a written notice to the other Party and the DAB expressing its dissatisfaction with a Decision, as provided in the Rules, or if the DAB does not issue the Decision within the time limit provided for in the Rules, or if the DAB is disbanded pursuant to the Rules, the dispute shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce by three arbitrators appointed in accordance with the ICC Rules of Arbitration.

15.3 Place of Arbitration

The arbitration shall be conducted in Chicago, Illinois, USA in the English language.

15.4 Arbitrators

Each arbitrator shall be fluent in English.

15.5 Decision

A decision of the arbitrators shall be final, binding and conclusive upon the Parties and may be confirmed or embodied in any order or judgment of any court having jurisdiction.

15.6 Enforceability

The foregoing agreement to arbitrate shall be specifically enforceable and the award rendered by the arbitrators shall be final and judgment maybe entered upon it in accordance with applicable law in any court having jurisdiction thereof.

15.7 Continuance of Performance

If a Party disputes a payment claimed by the other Party to be due and payable, the Party shall advise the other Party of the reason therefor, and shall pay any undisputed portion of such payment while awaiting resolution with respect to the disputed portion.

Pending final resolution of any Dispute, [Respondent] and [Claimant] shall continue to fulfill their respective obligations hereunder.

15.8 Cost

The entire cost of the arbitration, including those of third parties and the Parties’ legal fees, shall be allocated by the arbitrators in their discretion and stated in their award.1

5. LANGUAGE OF ARBITRATION

Further to Article 15.3 of the Upstream Contract, the language of arbitration is English.

6. PLACE OF ARBITRATION

Further to Article 15.3 of the Upstream Contract, the place of arbitration is Chicago, IL, USA.

7. APPLICABLE LAW

7.1.
Pursuant to Article 21(1) of the Rules, the parties are free to agree upon the rules of law to be applied by the arbitral tribunal to the merits of the dispute.
7.2.
Article 17.5 of the Upstream Contract provides as follows:

17.5 Choice of Law

This Contract shall in all respects be governed by and. interpreted under the laws of Iowa without giving effect to conflicts of laws provisions thereof.

7.3.
Pursuant to Article 21(2) of the Rules, the arbitral tribunal shall take account of the provisions of the contract between the parties and of any relevant trade usages.

8. PROCEDURAL RULES

8.1.
Subject to any mandatory rules at the place of arbitration, the proceedings are governed by the Rules and, where those Rules are silent, by any rules which the parties, or failing them, the arbitral tribunal may settle in accordance with Article 19 of the Rules.
8.2.
Further to Article 39 of the Rules, a party that proceeds with the arbitration without raising an objection to a failure to comply with any provision of the Rules, or of any other rules applicable to the proceedings, any direction given by the arbitral tribunal, or any requirement under the arbitration agreement relating to the constitution of the arbitral tribunal or the conduct of the proceedings, shall be deemed to have waived its right to object.

9. PROCEDURAL HISTORY

9.1.
By way of summary, the main procedural steps in this arbitration have been the following.
9.2.
On 8 July 2016, Claimant filed its Request for Arbitration (the "Request") with the Secretariat of the Court.
9.3.
By letter dated 3 August 2016, the Secretariat notified the Request to Respondent.
9.4.
On 6 September 2016, Respondent submitted its Preliminary Objection, Answer and Counterclaim ("Answer"). There, Respondent raised a jurisdictional objection to Claimant’s claims.
9.5.
On 20 September 2016, the Secretariat noted that Respondent had raised a plea pursuant to Article 6(3) of the Rules and stated that such plea would be decided directly by the arbitral tribunal after providing the parties an opportunity to comment.
9.6.
On 20 October 2016, Claimant submitted its Reply.
9.7.
On 1 December 2016, the file was transferred to the arbitral tribunal.
9.8.
During December 2016, the tribunal circulated to the parties for their comments drafts of the Terms of Reference and Procedural Order 1, which attached a proposed procedural timetable as Exhibit A.
9.9.
On 20 December 2016, the tribunal held a case management conference with the parties by telephone pursuant to Article 24 of the Rules.
9.10.
On 30 December 2016, the tribunal notified Procedural Order 1 to the parties. Attached to Procedural Order 1 as Exhibit A was the procedural timetable.
9.11.
As reflected in the procedural timetable, the arbitral tribunal decided to carve out the issue of jurisdiction and determine it as a preliminary issue in a partial award.
9.12.
On 6 January 2017, Respondent submitted its Brief in Support of Its Preliminary Objection to Jurisdiction. Along with its Brief, Respondent submitted, among other things, a witness statement dated 6 January 2017 from Mr. Osama Bishai, Respondent’s Sole Director.2
9.13.
On 20 January 2017, Claimant filed its Submission regarding Respondent’s Preliminary Objection to Jurisdiction. Along with its Submission, Claimant filed, among other things, (1) a witness statement dated 20 January 2017 from Mr. Michael Campesi, Claimant’s Chief Executive Officer, and (2) a witness statement dated 20 January 2017 from Mr. A. Byrd Harelson, who was then Claimant’s President.3
9.14.
On 26 January 2017, the tribunal declared the proceedings closed with respect to the matters to be decided in the partial award further to Article 27 of the Rules.
9.15.
That same day, the Terms of Reference, which were signed by the parties and the tribunal and dated 16 January 2017, were transmitted to the Court pursuant to Article 23(2) of the Rules, and the procedural timetable was communicated to the Court pursuant to Article 24(2) of the Rules.
9.16.
On 27 January 2017, the Court approved the partial award pursuant to Article 33 of the Rules.
9.17.
On 2 February 2017, the Secretariat notified the partial award dated 31 January 2017 to the parties. In the partial award, the arbitral tribunal decided that it had jurisdiction over Claimant’s claims and reserved all other issues, including any issue of costs, to a future award.
9.18.
On 31 March 2017, the parties filed their statements of claim.
9.19.
With its statement of claim, Claimant filed, among other things, (1) a witness statement and expert report from Mr. Michael F. D’Onofrio of Capital Project Management, Inc. ("CPMI"), (2) a witness statement and expert report from Ms. Sandra Hadley of Cotton & Company LLP ("C&C"), (3) a witness statement from Mr. Joseph Campesi, Claimant’s Project Controls Lead, (4) a witness statement from Mr. Brad Harrell, who was then Claimant’s Cost Controller, and (5) a witness statement from Mr. Nick Noto, Vice President and Business Unit Manager for Thorpe Plant Services, Inc. ("Thorpe"). All of these statements and reports are dated 31 March 2017.4
9.20.
With its statement of claim, Respondent filed, among other things, (1) a witness statement and expert report dated 30 March 2017 from Mr. Christopher J. Payne of McDonough Bolyard Peck ("MBP"), (2) a witness statement dated 30 March 2017 from Mr. Bishai, (3) a witness statement dated 24 March 2017 from Mr. Kevin Conklin, Chief Executive Officer and Chief Operating Officer of Ryan and Associates ("Ryan"), (4) a witness statement dated 25 March 2017 from Mr. Donald Depappa, Respondent’s Quality Control Manager, (5) a witness statement dated 30 March 2017 from Mr. Nabil Ghantous, Respondent’s Executive Vice President, (6) a witness statement dated 27 March 2017 from Mr. Larry Richard, Regional Director of Gulf Coast Operations for ParFab Field Services, LLC ("ParFab"), (7) a witness statement dated 23 March 2017 from Mr. Juan Rosario, Respondent’s Material Controls Coordinator, and (8) a witness statement dated 29 March 2017 from Mr. Shehab Shenouda, Respondent’s Project Development Director.5
9.21.
In April 2017, the parties exchanged document requests.
9.22.
On 27 April and 21 May 2017, the arbitral tribunal ruled on the parties’ contested document requests.
9.23.
On 21 July 2017, the parties submitted their statements of defense.
9.24.
With its statement of defense, Claimant filed, among other things, (1) a witness statement and expert report dated 21 July 2017 from Mr. D’Onofrio, (2) a witness statement dated 20 July 2017 and expert report dated 19 July 2017 from Ms. Hadley, (3) a witness statement and expert report dated 19 July 2017 from Mr. Stephen Liccini of Premier Project Associates, LLC ("PPA"), (4) a witness statement dated 21 July 2017 from Mr. Michael Aiken, Claimant’s Project Manager, (5) a witness statement dated 21 July 2017 from Mr. Joseph Campesi, (6) a witness statement dated 21 July 2017 from Mr. Robert Clark, Claimant’s Group Quality Control Area Manager, (7) a witness statement dated 21 July 2017 from Mr. Ron Hawley, who was then Claimant’s Exxon Mobile Baytown Site Manager, (8) a witness statement dated 21 July 2017 from Mr. Noto, (9) a witness statement dated 21 July 2017 from Mr. Randy Posey, Claimant’s Field Operations Manager, and (10) a witness statement dated 9 March 2017 from Ms. Kathy L. Skewes, Manager of Lee County Abstract Co.6
9.25.
With its statement of defense, Respondent filed, among other things, (1) a witness statement and expert report dated 21 July 2017 from Mr. Payne, (2) a witness statement and expert report dated 21 July 2017 from Mr. Wiley R. Wright, III, who was then with Secretariat International ("SI"), (3) a witness statement dated 21 July 2017 from Mr. Kaushal Bhatt, Mechanical Lead of KBR, (4) a witness statement dated 20 July 2017 from Mr. Conklin, (5) a witness statement dated 21 July 2017 from Mr. Depappa, (6) a witness statement dated 18 July 2017 from Mr. Ghantous, (7) a witness statement dated 21 July 2017 from Mr. Richard and (8) a witness statement dated 21 July 2017 from Mr. Shenouda.7
9.26.
On 14 and 22 August 2017, Claimant submitted revised versions of its statement of defense.8
9.27.
On 16 and 17 August 2017, the parties submitted their statements of reply.
9.28.
With its statement of reply, Claimant filed, among other things, (1) a witness statement and expert report dated 16 August 2017 from Mr. D’Onofrio, (2) a witness statement and expert report dated 16 August 2017 from Ms. Hadley, (3) a witness statement dated 16 August 2017 and expert report dated 9 August 2017 from Mr. Liccini, (4) a witness statement dated 15 August 2017 from Mr. Brad Campbell, Superintendent for Thorpe, (5) a witness statement dated 21 July 2017 from Mr. Joseph Campesi, (6) a witness statement dated 16 August 2017 from Mr. Michael Campesi and (7) a witness statement dated 15 August 2017 from Mr. Noto.9
9.29.
With its Statement of Reply, Respondent filed, among other things, (1) a witness statement and expert report from Mr. W. Guy Fincher of Rimkus Consulting Group, Inc. ("Rimkus"), (2) a witness statement and expert report from Mr. Payne, (3) a witness statement and expert report from Mr. Wright, now with BDO USA, LLP ("BDO"), (4) a witness statement from Mr. Bishai, (5) a witness statement from Mr. Gary L. Butcher, Respondent’s former Project Executive (Manager), (6) a witness statement from Mr. Conklin, (7) a witness statement from Mr. Ihab Demian, Respondent’s Project Director, (8) a witness statement from Mr. Depappa, (9) a witness statement from Mr. Emil Nairouz Ghebreial, Respondent’s Technical Manager, (10) a witness statement from Mr. Richard and (11) a witness statement from Mr. Shenouda. All of these statements and reports are dated 16 August 2017.10
9.30.
On 22 August 2017, Claimant filed a revised version of its statement of reply.11
9.31.
On 12 September 2017, after receiving comments from the parties, the tribunal issued Procedural Order 2 regarding the organization of the hearing, which was held in Chicago on 18-24 September 2017.
9.32.
In addition to the tribunal, the following people attended the hearing:

Mr. Michael Campesi, Claimant’s Chief Executive Officer
Mr. A. Byrd Harelson, Claimant’s former President
Mr. Joseph K. Campesi, Claimant’s Project Controls Lead
Mr. Richard J. Tyler, Jones Walker, Counsel for Claimant
Mr. Christopher D. Cazenave, Jones WALKER, Counsel for Claimant
Mr. Michael F. D’Onofrio, CPMI, Principal
Ms. Sandra Hadley, C&C, Partner
Mr. Jason Boberg, C&C, Assistant
Mr. Ahmad Khan, C&C, Assistant
Mr. Stephen Liccini, PPA, President
Mr. Michael Aiken, Claimant’s Project Manager
Mr. Robert Clark, Claimant’s Group Quality Control Area Manager
Mr. Brad Harrell, Claimant’s Manager of Timekeeping and Invoicing
Mr. Ron Hawley, Crown Enterprises, Senior Project Manager
Mr. Randy Posey, Claimant’s Field Operations Manager
Mr. Nick Noto, Thorpe, Vice President and Business Unit Manager
Mr. Brad Campbell, Thorpe, Superintendent
Mr. Nabil Ghantous, Respondent’s Executive Vice President
Mr. Shehab Shenouda, Respondent’s Project Development Director
Mr. Mohamed Borai, Respondent’s in-house counsel
Mr. Juan Salazar, Respondent’s in-house counsel
Ms. Sara Beiro Farabow, Seyfarth Shaw, Counsel for Respondent
Mr. Mark L. Johnson, Seyfarth Shaw, Counsel for Respondent
Mr. Steven J. Kmieciak, Seyfarth Shaw, Counsel for Respondent
Mr. Anthony LaPlaca, Seyfarth Shaw, Counsel for Respondent
Mr. W. Guy Fincher, Rimkus, Special Consultant
Mr. Christopher J. Payne, MBP, Executive Vice President
Mr. Wiley R. Wright, III, BDO, Managing Director
Mr. Osama Bishai, Respondent’s Sole Director
Mr. Gary L. Butcher, Respondent’s former Project Executive (Manager)
Mr. Ihab Demian, Respondent’s Project Director
Mr. Emil Nairouz Ghebreial, Respondent’s Technical Manager
Mr. Juan Rosario, Respondent’s Material Controls Coordinator
Mr. Sharif Youssef, Respondent’s Contracts and Claims Manager
Mr. Kaushal Bhatt, KBR, Mechanical Lead
Mr. Kevin Conklin, Ryan, Chief Executive Officer and Chief Operations Officer

9.33.
A court reporter was also present at the hearing to record the proceedings and prepare a transcript.12
9.34.
At the close of the hearing, both parties confirmed that they had no objections to the way the proceedings had been conducted. The parties also confirmed that they had been treated equally and that their rights to be heard had been respected. Tr. 7:1590:13-1591:6.
9.35.
At the end of October 2017, the parties filed their post-hearing submissions.13
9.36.
On 9 November 2017, pursuant to Article 27 of the Rules, the tribunal declared the proceedings closed and informed the parties and the Secretariat that it expected to submit its draft final award to the Court for approval before the end of the year.
9.37.
During the course of these proceedings, the parties have submitted exhibits. Claimant’s exhibits are marked with the letter "C", while Respondent’s exhibits are marked with the letter "R". In addition, Mr. Noto has submitted exhibits with his witness statements. These are marked with the letter "T".14
9.38.
At its session of 26 January 2017, the Court fixed 29 December 2017 as the time limit for the tribunal to issue its final award pursuant to Article 30(1) of the Rules. At its session of 20 December 2017, the Court extended the time limit for the final award to 31 January 2018.
9.39.
At its session of 14 December 2017, the Court approved the final award pursuant to Article 33 of the Rules.
9.40.
Further to Article 34(6) of the Rules, "[e]very award shall be binding on the parties. By submitting the dispute to arbitration under the Rules, the parties undertake to carry out any award without delay and shall be deemed to have waived their right to any form of recourse insofar as such waiver can validly be made."

10. RELIEF SOUGHT

10.1.
In its Request (¶ 4.1), Claimant sought "an award of $12,065,822, which sum represents the outstanding amount due, including retainage, for work performed on the Upstream Scope."
10.2.
Claimant also sought "accrued interest for late payments at a per annum rate of Prime Rate plus 1%, as provided in the Upstream Contract." Request ¶ 4.2.
10.3.
Claimant also sought the "value of small tools, personal protection equipment, and other property owned by [Claimant] that [Respondent] converted for its own use."15Id. ¶ 4.3.
10.4.
Claimant also sought "any other relief that may be provided under the Upstream Contract or other applicable law." Id. ¶ 4.4.
10.5.
In its Answer (¶ 49), Respondent asked the tribunal to issue an award providing as follows:

i. That the claims of [Claimant] contained in its [Request] be denied in their entirety;

ii. That [Respondent] has paid [Claimant] all amounts due under the [Upstream Contract];

iii. That [Claimant] make payment to [Respondent] in the amount of at least $12,902,635.11; '

iv. That [Claimant] bear all costs of the present arbitration proceedings as well as the reasonable costs and attorneys’ fees incurred by [Respondent], in accordance with Article 31.1 of the Rules; and

v. That [Respondent] receive all such other relief that the Arbitral Tribunal may deem just and proper.

10.6.
In its Reply (at 16-17), Claimant sought an award:

A. Granting [Claimant] the monetary relief requested in the [Request];

B. Denying any award to [Respondent] on its Counterclaim;

C. Ordering [Respondent] to pay [Claimant’s] reasonable and necessary attorneys’ fees, experts’ fees and all costs of this arbitration;

D. Ordering [Respondent] to pay [Claimant] prejudgment and post-judgment interest as provided by Iowa law; and

E. Granting to [Claimant] such other further relief of any nature, to which [Claimant] may be entitled.

10.7.
In its statement of claim (§ 11), Claimant sought an award:

11.1.1 for the principal amount of $12,033,451, which sum represents the outstanding amount due, including retainage, for work performed on the Upstream Scope.

11.1.2 for accrued interest on the late payments at a per annum at the Wall Street Journal Prime Rate plus 1%, as provided in the Upstream Contract:

(a) In the case of Pay App 19/Invoice 15860, that amount is $145,807 as of March 31, 2017, and accrues at the rate of $404.18 per day (assuming no change in the Prime Rate).

(b) In the case of Pay App 20/Invoice 16117, that amount is $180,205 as of March 31, 2017, and accrues at the rate of $538.49 per day (assuming no change in the Prime Rate).

(c) In the case of Pay App 21/Invoice 16229, that amount is $138,976 as of March 31, 2017, and accrues at the rate of $453.06 per day (assuming no change in the Prime Rate).

(d) In the case of Retainage, that amount is $3,043 as of March 31, 2017, and accrues at the rate of $9.92 per day (assuming no change in the Prime Rate).

11.1.3 for the entire cost of the arbitration, including those of third parties and legal fees, as provided in the Upstream Contract.

11.1.4 for any other relief that may be provided under the Upstream Contract or other applicable law.

10.8.
In its statement of defense (at 78), Respondent "requests that the Tribunal enter an award ordering [Claimant] to pay [Respondent] $11,854,194 in damages plus attorneys’ fees, arbitration fees and expenses incurred in connection with this arbitration."
10.9.
In its statement of reply (at 47), Claimant seeks an award as follows:

i. For the principal amount of $10,261,217, which sum represents the outstanding amount due, including retainage, for work performed on the Upstream Scope.

ii. For accrued interest on the late payments at a per annum at the Wall Street Journal Prime Rate plus 1 %, as provided in the Upstream Contract.

iii. For the entire cost of the arbitration, including the costs of third parties and legal fees, as provided in the Upstream Contract.

iv. For any other relief that may be provided under the Upstream Contract or other applicable law.

10.10.
In its post-hearing submission (¶ 82), Claimant sought an award in the amount of USD 13 285 675 calculated as follows:

Unpaid invoices USD 10 261 217
Attorneys’ fees and costs USD 1 056 561
Expert fees and costs USD 778 372
Arbitration expenses
(excluding attorneys’ fees and costs) USD 87 782
ICC fees and costs advanced USD 330 000
Interest USD 771 742

10.11.
In its statement of claim (¶ 204), Respondent stated that the "total amount of damages suffered by [Respondent] as a result of [Claimant’s] failure to perform its obligations, pursuant to the [Upstream Contract], is at least $22,630,609. After factoring the amount [Respondent] properly withheld from the last three invoices, [Respondent] is entitled to recover in excess of $12 million in damages from [Claimant]."
10.12.
In its statement of defense (at 126-127), Claimant stated as follows:

A. Given the complete lack of evidence proffered by [Respondent] on its counterclaim, both as to liability and quantum, [Claimant] submits the counterclaim should be dismissed with prejudice.

B. Based on the evidence proffered with its original Statement of Claim and this Statement of Defense, [Claimant] seeks an award as follows:

1. for the principal amount of $10,261,217, which sum represents the outstanding amount due, including retainage, for work performed on the Upstream Scope.

2. for accrued interest on the late payments at a per annum at the Wall Street Journal Prime Rate plus 1%, as provided in the Upstream Contract:

3. for the entire cost of the arbitration, including those of third parties and legal fees, as provided in the Upstream Contract.

4. for any other relief that may be provided under the Upstream Contract or other applicable law.

See also Claimant’s email dated 31 July 2017 to the tribunal (correcting typos in Claimant’s Statement of Defense).

10.13.
Respondent’s statement of reply does not specify the relief sought.
10.14.
In its post-hearing submission (¶ 113), Respondent sought an award "denying [Claimant’s] claims and awarding [Respondent] a net amount of USD 11 668 409, plus interest accruing from September 6, 2016 (the date [Respondent] filed its Counterclaim) at a rate of prime plus 1%, and costs and attorneys’ fees as set forth in Appendices 1-3."
10.15.
There was, in fact, only an Appendix 1 to Respondent’s post-hearing submission. That Appendix listed party costs totaling USD 2 578 785.89, composed of attorneys’ fees of USD 1 913 581.29, expert fees for MBP of USD 377 736.94 and expert fees for SI and BDO of USD 287 467.66.

11. REASONING

11.1.
In making this award, we have considered all of the allegations, evidence and arguments the parties have submitted to us, though we refer in this award only to those we consider relevant to our reasoning and decisions.

A. Factual Background

The Project

11.2.
This case arises out of the construction of a new nitrogen fertilizer facility in Wever, Iowa, USA (the "Project").
11.3.
The owner of the Project is the Iowa Fertilizer Company LLC ("IFCO"). The ultimate parent company of IFCO is OCI N.V. ("OCI"), a global producer of natural-gas-based fertilizers.
11.4.
In 2012, IFCO engaged Respondent - a company specialized in engineering, procurement and construction for chemical and industrial projects - to develop the Project. At that time, Respondent was also a subsidiary of OCI.
11.5.
IFCO, OCI and Respondent are all part of the Orascom group.
11.6.
The Project has two main sections - an Upstream Ammonia Plant and a Downstream Urea Plant. Ammonia manufactured from natural gas in the Upstream Ammonia Plant is used to make nitrogen-based fertilizer products in the Downstream Urea Plant. The Upstream Ammonia Plant is commonly referred to as the "Upstream Scope" of the Project, while the Downstream Urea Plant is commonly referred to as the "Downstream Scope". Nexant, Final Report - Integrated Fertilizer Complex Independent Engineer, Technical Review, 12 Apr. 2013 ("Nexant Report"), Ex. C349; Project site map, Ex. R16B; Bishai 2 ¶¶ 5-6; Ghantous 1 ¶¶ 5-8.
11.7.
Respondent contracted with Tecnimont to engineer and procure the Upstream Ammonia Plant incorporating KBR technology. Bishai 2 ¶ 7; Ghantous 1 ¶ 6.
11.8.
Claimant is a contractor that performs industrial projects - e.g., turnarounds, new capital construction, plant relocations, demolition, emergency rebuilds and installation maintenance - throughout the United States and internationally. M. Campesi 1 ¶¶ 6-7.
11.9.
On 9 June 2014, Respondent engaged Claimant as a subcontractor to build an ammonia reformer furnace for the Upstream Ammonia Plant. This ammonia reformer furnace is commonly known as the "Primary Reformer". Limited Notice to Proceed ("LNTP"), 9 Jun. 2014, Ex. C53; Bishai 2 ¶ 9; Ghantous 1 ¶¶ 9-12, 14. The Primary Reformer is the area of the Upstream Ammonia Plant where natural gas, which is used as a feedstock, is mixed with steam and interacts with a catalyst to form carbon monoxide and hydrogen, which can then be combined with nitrogen to form ammonia. Nexant Report, Ex. C349, at 36-37.

The Upstream Contract

11.10.
For this work, the parties entered into the Upstream Contract (supra ¶ 4.1), which appears in the record as Exhibit Cl.
11.11.
The Upstream Contract is a cost-reimbursable contract with several fixed-price elements. Upstream Contract, Ex. Cl, at 1.
11.12.
Specifically, with regard to the "Contract Price" for the Primary Reformer, Article 4.1 of the Upstream Contract provides in pertinent part as follows:

4.1 Contract Price

The Contract Price Consists of:

4.1.1 The fixed price amounts of:

i. Fixed Fee capped at a not-to-exceed value of One Million Four Hundred Eighty-One Thousand One Hundred Seventy-Nine and 00/100 Dollars ($1,481,179.00).

ii. Fixed Indirect Costs capped at a not-to-exceed. value of One Million One Hundred Eighty-Eight Thousand One Hundred Eighty-Two and 00/100 Dollars ($1,188,182.00).

iii. Fixed Plant and Equipment Costs capped at a not-to-exceed value of Two Hundred Sixteen Thousand Nine Hundred Sixty-Four and 00/100 Dollars ($216,964.00).

collectively the "Fixed Price Portion", and;

4.1.2 Cost reimbursable items identified in Exhibit B. in the estimated amount of Eleven Million One Hundred Eighteen Thousand Six Hundred Thirty-Nine and 00/100 Dollars ($11,118,639.00).

4.1.3 Aforementioned Fixed Fee, Fixed Indirect Costs, and Fixed Plant and Equipment Costs under Article 4.1.1 are applicable to the Reimbursable Direct Costs and Reimbursable 3rd Party Materials and/or Services Costs under the current anticipated scope.

4.1.4 Any additional 3rd Party Materials and/or Services shall be reimbursed at cost plus seven percent (7%) fee.

... The Contract Price shall only be adjusted in accordance with Article 7.

Bolding original.

11.13.
With regards to the "Payment Schedule", Article 4.3 of the Upstream Contract provides in pertinent part as follows:

4.3 Progress Payments

4.3.1 Payment Schedule

The Contract Price shall be paid in accordance with the Payment Schedule attached as Exhibit B, provided that [Claimant] shall only be entitled to payment in relation to any payment, if [Claimant] has complied and is complying with its obligations under Section 4.3.3...

* * *

4.3.3 Application for Payment:

(i) Payments are to be made in accordance with the Schedule of Values and the cost reimbursable rates identified in Exhibit B, unless otherwise stated within this Section.

(ii) By the 21st Day of any particular calendar month during which [Claimant] is scheduled to complete portions of the Work identified in the Payment Schedule... [Claimant] shall submit to [Respondent] an Application for Payment [("Payment Application")] describing in reasonable detail:

(a) percentage of Work to be completed no later than the last day of the Current Month, and for which [Claimant] has not previously received payment, to include milestone payments under the Fixed Price Portion as identified in Section 4.1.1 in accordance with the Payment Schedule;16 and

(b) the amount, pursuant to the Payment Schedule, that will be due to [Claimant] upon completion of the portions of the Work in accordance with the requirements of this Contract by the end of the Current Month. For avoidance of doubt, portions of the Work may only be billed and shall only be payable after the portions of the Work which payment applies has been completed;

(c) A written certification that:

[...]

no basis exists for withholding the requested payment...

* * *

[Respondent] shall, within twenty one (21) Days of the date of receiving the [Payment Application] review the certifications of completion and backup documentation provided by [Claimant] for the Current Month and either verify completion of each such portion of the Work in accordance with the Contract or state in writing the reasons for refusing to verify such completion of any such portion of the Work.

(iii) Invoice : Not later than the first Business Day of the month after the Current Month, [Claimant] shall provide [Respondent] with an Invoice confirming that the portion of the Work referenced in the [Payment Application] have been met and that the amounts set forth in the [Payment Application] are due and owing.

(iv) Subject to this Article 4, [Respondent] shall, within thirty (30) Days after receipt of the Invoice from [Claimant], pay or cause payment to be made in an amount equal to the approved amount of [Claimant’s] invoice, less 10% retention of the Fixed Price Portion of the [Contract].

* * *

(vi) Any payment amount that [Respondent] refuses to authorize shall be deferred until:

(a) [Respondent] and [Claimant] agree that the portion of the Work in question has been completed in accordance with this Contract; or

(b) the portion of the Work in question is determined by a decision of the arbitrator(s) pursuant to Article 15 to have been completed in accordance with the requirements of this Contract.

11.14.
Under Article 5.1.1 (a) of the Upstream Contract, Claimant was due to complete its work on the Primary Reformer no later than 23 December 2014. This date is known as the "Guaranteed Mechanical Completion Date".

Amendment 1

11.15.
On 21 November 2014, Claimant and Respondent amended the Upstream Contract to increase Claimant’s scope of work to include construction of a second ammonia reformer furnace for the Upstream Ammonia Plant. Bishai 2 ¶ 9; Ghantous 1 ¶ 13. This amendment is known as "Amendment 1" and appears in the record as Exhibit C2. The second ammonia reformer furnace is commonly known as the "Secondary Reformer". The Secondary Reformer is needed because the Primary Reformer only extracts hydrogen from about 60% of the natural gas feedstock. The Secondary Reformer processes the effluent gas from the Primary Reformer to extract and reform any residual natural gas. Nexant Report, Ex. C349, at 36-37.
11.16.
With regards to Contract Price for the Secondary Reformer, Amendment 1 (¶ 2) provides in pertinent part as follows:

2. Delete Article 4.1 [of the Contract] in its entirety and replace with the following:

"4.1 Contract Price

The Contract Price Consists of:

4.1.1 The fixed price amounts of:

i. Primary and Secondary Reformer: Fixed Fee capped at a not-to-exceed value of Two Million Six Hundred Forty-Nine Thousand Two Hundred Forty-Seven and 00/100 Dollars ($2,649,247.00).

ii. Primary and Secondary Reformer: Fixed Indirect Costs capped at a not-to-exceed. value of One Million Nine Hundred Twenty-Four Thousand One Hundred Eleven and 00/100 Dollars ($1,924,111.00).

iii. Primary and Secondary Reformer: Fixed Plant and Equipment Costs capped at a not-to-exceed value of Five Hundred Twenty Thousand Two Hundred Twenty and 00/100 Dollars ($520,220.00).

collectively the "Fixed Price Portion", and;

4.1.2 Cost reimbursable items identified in Exhibit B for Primary and Secondary Reformer, in the estimated amount of Eighteen Million Six Hundred Sixty-Nine Thousand Six Hundred Eighty-One and 43/100 Dollars ($18,669,681.43).

4.1.3 Aforementioned Fixed Fee, Fixed Indirect Costs, and Fixed Plant and Equipment Costs under Article 4.1.1 are applicable to the Reimbursable Direct Costs and Reimbursable 3rd Party Materials and/or Services Costs under the current anticipated scope.

4.1.4 Any additional 3rd Party Materials and/or Services shall be reimbursed at cost plus seven percent (7%) fee.

Total Contract Value, inclusive of this Amendment and executed Change Orders through Change Order 012, is Twenty-Three Million Seven Hundred Sixty-Three Thousand, Two Hundred Fifty-Nine and 43/100 Dollars ($23,763,259.43).

Bolding original.

11.17.
In Amendment 1 (¶ 3), the parties agreed that the Guaranteed Mechanical Completion Date for both the Primary and Secondary Reformer would be 1 April 2015, "based on being able to begin actual work installation activities on or around sixteen (16) weeks prior to Completion Date."

Amendment 2

11.18.
On 23 April 2015, Claimant and Respondent again amended the Upstream Contract to increase Claimant’s scope of work, this time to include piping work in what is known as Area 1001/1002 of the Upstream Ammonia Plant. Bishai 2 ¶ 9; Ghantous 1 ¶ 13. This amendment is known as "Amendment 2" and appears in the record as Exhibit C3. The piping work it covers is commonly known as "1001/1002 Piping".
11.19.
With regard to the Contract Price for 1001/1002 Piping, Amendment 2 (¶ 2) provides as follows:

2. Amend Article 4.1 [of the Contract] with the following:

Add Article 4.1.5 as follows:

"Article 4.1.5 Contract Price for 1001/1002 Piping, in the total amount of Sixteen Million Nine Hundred Fifty-Five Thousand Two Hundred Seventy-Five and 00/100 Dollars ($16,955,275.00), consisting of the following:

4.1.5.1 Fixed fee, in the amount of Two Million Eight Hundred Forty-Five Thousand Five Hundred Seventy-Eight and 00/100 Dollars ($2,845,578.00).

4.1.5.2 Fixed Indirect Costs, in the amount of Two Million One Hundred Eighty-Three Thousand Twenty-Two and 00/100 Dollars ($2,183,022.00).

4.1.5.3 Fixed Plant and Equipment, in the amount of Nine Hundred Five Thousand Nine Hundred Eighty-Eight and 00/100 Dollars ($905,988.00).

4.1.5.4 Reimbursable Direct Costs, in the target estimate amount of Eight Million Seven Hundred Seventy-Two Thousand Nine Hundred Thirty-One and 00/100 Dollars ($8,722,931.00).

4.1.5.5 Reimbursable 3rd Party (Materials/Services) Costs, in the target estimate amount of Two Million Two Hundred Ninety-Nine Thousand Seven Hundred Fifty-Six and 00/100 Dollars ($2,299,756.00)."

All fixed and reimbursable costs under Article 4.1.5 shall be invoiced as progress payments in accordance with Attachment 2 of this Amendment.

Total contract value to date, inclusive of all change orders and Amendments to date, is Forty-Five Million Nine Hundred Fifty-Two Thousand Three Hundred Thirteen and 43/100 Dollars ($45,952,313.43).

Bolding original.

11.20.
In Amendment 2 (¶ 3), the parties agreed to extend the Guaranteed Mechanical Completion Date for both the Primary and Secondary Reformer to 3 August 2015 and set the Guaranteed Mechanical Completion Date for 1001/1002 Piping at 31 August 2015.
11.21.
In addition to the scope of work defined in the original Upstream Contract, Amendment 1 and Amendment 2, Claimant also performed work on the Upstream Scope pursuant to Field Change Notices. Claimant would issue a Field Change Notice ("FCN") when Respondent asked it to do work that Claimant considered outside its contractual scope.17 During the course of its work on the Upstream Ammonia Plant, Claimant issued close to 300 FCNs. A small fraction of these were incorporated into the Contract Price through formal change orders as contemplated by Article 7 of the Upstream Contract. Most, however, were not, and Claimant billed Respondent for work done in connection them as separate line items. Harrell ¶¶ 10-16; J. Campesi 1 ¶ 41; Shenouda 3 ¶¶ 2-4.
11.22.
Respondent also engaged Claimant to do work on the Downstream Urea Plant. Claims related to the Downstream Scope are the subject of federal court proceedings in the United States and are outside the scope of this arbitration.

De-Scoping and Demobilization

11.23.
Claimant’s work on the Upstream Scope went longer and cost more than anticipated. Claimant did not meet the Guaranteed Mechanical Completion Dates for the Primary and Secondary Reformer or for 1001/1002 Piping.
11.24.
On 31 December 2015, Respondent de-scoped 1001/1002 Piping from Claimant’s scope of work and directed Claimant to complete its work in connection with the Primary and Secondary Reformers no later than 31 January 2016. Letter from Respondent to Claimant, 31 Dec. 2015, Ex. Cl6.
11.25.
On the same day, Respondent also de-scoped the Downstream Scope from Claimant’s scope of work. Letter from Respondent to Claimant, 31 Dec. 2015, Ex. C20.
11.26.
Claimant demobilized from the site on 15 February 2016. Harelson ¶ 17; see also Meeting Minutes, 14 Jan. 2016, Ex. C541 (regarding "Ammonia/Downstream Scope Transition Progress/Commercial Close Out").
11.27.
Before leaving, Claimant did not complete its work on the Primary Reformer or the Secondary Reformer. Letter from Claimant to Respondent, 30 Jan. 2016, Ex. C148 (explaining that Claimant had completed the Primary and Secondary Reformer work to the extent materials allowed it to do so).18

Payment Applications 19, 20 and 21

11.28.
Between July 2014 and March 2016, Claimant submitted 21 Payment Applications to Respondent further to Article 4.3 of the Upstream Contract. Until December 2015, the mechanics of the process roughly followed the steps set out in that Article. See supra ¶ 11.13; Harelson ¶ 7.
11.29.
Specifically, Claimant would submit a Payment Application, including hundreds of pages of detailed back-up documentation for all costs. Harrell ¶¶ 7-21; Tr. 3:521:12-522:8 (Mr. Harrell testifying that the supporting documentation for just one invoice from one of Claimant’s subcontractors could be "three to four inches thick").
11.30.
Respondent would then review the Payment Application in detail, make comments and request additional information for any aspect of the Application it questioned. See, e.g., email chains between Respondent and Claimant from May through October 2015, Ex. R67JJ (regarding questions and requests for further information in connection with Claimant’s Payment Applications); email from Respondent to Claimant, 23 Nov. 2015, Ex. R67MM (same); Harrell ¶¶ 22-24; Ghantous 1 ¶¶ 15-16; Tr. 5:1038:17-1040:17 (Mr. Shenouda explaining the process by which Payment Applications were reviewed); Tr. 7:1475:16-1476:3 (Ms. Hadley explaining Respondent’s "robust invoice review process").
11.31.
During this process, there would be give and take between Claimant and Respondent leading to a mutual agreement as to the amount Claimant would invoice. Claimant would then send Respondent an invoice in the agreed amount. All of Claimant’s invoices were dated the 1st of the month regardless of when they were approved. Respondent then usually paid within 30 days of the invoice date. Harrell ¶¶ 25-27.
11.32.
In December 2015, however, this process broke down.
11.33.
On 21 December 2015, Claimant submitted Payment Application 18 to Respondent. Respondent did not provide comments on the Application. On 12 January 2016, Claimant invoiced Respondent further to its Application. When Respondent did not make payment, Claimant issued Respondent a notice of default on 1 February 2016. On 3 February 2016, Respondent stated that it would pay the invoice by the end of the month, but did not do so. On 4 March 2016, Claimant sent Respondent a notice of material breach. Respondent eventually paid Claimant’s invoice for Payment Application 18 in exchange for certain documentation Claimant agreed to provide. Id. ¶¶ 41-45.
11.34.
On 21 January 2016, Claimant submitted Payment Application 19 to Respondent. Again, Respondent did not provide comments on Claimant’s Application. On 11 February 2016, Claimant invoiced Respondent further to its Application. Respondent has never paid this invoice. Id. ¶¶ 46-50. Payment Application 19 and its associated invoice appear in the record as Exhibit C307.
11.35.
On 26 February 2016, Claimant submitted Payment Application 20 to Respondent. Again, Respondent did not provide comments on Claimant’s Application. On 18 March 2016, Claimant invoiced Respondent further to its Application. Respondent has never paid this invoice. Id. ¶¶ 51-55. Payment Application 20 and its associated invoice appear in the record as Exhibit C348.
11.36.
Claimant submitted a final Payment Application 21 to Respondent on 23 March 2016. Again, Respondent did not provide comments on Claimant’s Application. Id. ¶¶ 56-58. Claimant, however, never invoiced Respondent further to this Payment Application. Email from Claimant to the tribunal, 24 Aug. 2017; Tr. 3:525:8-526:11 (Mr. Harrell explaining how an invoice number may be generated even when no invoice is ever sent). Payment Application 21 appears in the record as Exhibit C310.
11.37.
Claimant’s claims in these proceedings center on recovering amounts due in connection with Payment Applications 19, 20 and 21.

B. Iowa Contract Law

11.38.
The parties agree that each must prove its claims by a preponderance of the evidence. Tr. 7:1568:1-9.
11.39.
As noted above (¶ 7.2), the Upstream Contract provides that it shall be governed by and interpreted under Iowa law without giving effect to conflicts of laws provisions.
11.40.
Iowa contract law recognizes the Four Comers Rule. When construing a written contract, the intent of the parties controls and, except in cases of ambiguity, "intent is determined by what the contract itself says". Anderson v. Aspelmeier, Fisch, Power, Warner & Engberg, 461 N.W.2d 598 (Iowa 1990), Ex. CL5, at 600; see also Kennedy v. State, 688 N.W.2d 473 (Iowa 2004) ("Kennedy"), Ex. CL29, at 480 ("Whether in the guise of construction or otherwise, it is not within our province, function, duty, or power to alter, revise, modify, extend, rewrite, or remake an agreement by construction, or to make a new, or different, agreement for the parties").
11.41.
An ambiguity exists when, "after application of pertinent rules of interpretation to the face of the instrument, a genuine uncertainty exists concerning which of two reasonable constructions is proper." Iowa Fuel & Minerals, Inc. v. Iowa State Bd. of Regents, 471 N.W.2d 859 (Iowa 1991), Ex. CL22, at 863.
11.42.
Under Iowa law, a party breaches a contract when it fails to perform its contractual obligations without legal excuse. Wilson v. Vanden Berg, 687 N.W.2d 575 (Iowa 2004), Ex. RL46, at 583 (citing Molo Oil Co. v. River City Ford Truck Sales, Inc., 578 N.W.2d 222 (Iowa 1998), Ex. RL27, at 224).
11.43.
In the event of breach, the claiming party is generally entitled to be placed in the position it would have occupied had there been performance. Magnusson Agency v. Public Entity Nat’l Co.-Midwest, 560 N.W.2d 20 (Iowa 1997), Ex. RL23, at 27 (citing Yost v. City of Council Bluffs, 471 N.W.2d 836 (Iowa 1991), Ex. RL47, at 840.
11.44.
The claiming party may recover compensatory damages to the extent it can prove it suffered "injuries which may reasonably be considered as arising naturally from the breach of contract itself, or such as may reasonably be supposed to have been in the contemplation of the parties, at the time of contracting, as a probable result of the breach." R.E.T. Corp. v. Frank Paxton Co., Inc., 329 N.W.2d 416 (Iowa 1983), Ex. RL32, at 420 (internal quotation marks omitted).
11.45.
The claiming party must prove its damages with evidence that has "sufficient probative force to constitute the basis for a legal inference" that the damages were incurred. Grosse Steel Co., Inc. v. Midtown Dev., LLC, 829 N.W.2d 591 (Iowa Ct. App. 2013) ("Grosse Steel"), Ex. RL12, at *4 (internal quotation marks omitted).
11.46.
The amount of damages need not be proven with precision. Howard v. Brown, 148 N.W. 987 (Iowa 1914), Ex. RL13, at 989. While "recovery will be denied if it is speculative and uncertain whether damage has been sustained...recovery will not be denied merely because the amount of damages is difficult to ascertain." Robinson v. Perpetual Servs. Corp., 412 N.W.2d 562 (Iowa 1987) ("Robinson"), Ex. RL34, at 567; Oak Leaf Country Club, Inc. v. Wilson, 257 N.W.2d 739 (Iowa 1977), Ex. RL30, at 747.
11.47.
Provided there is a "reasonable basis in the record from which the amount of damages can be inferred or approximated, recovery of damages for breach of contract will be allowed." Brunssen v. Brunssen, 2008 WL 3277005 (Iowa Dist. Ct. 2008) ("Brunssen"), Ex. RL5, at *3 (citing Jones v. Lake Park Care Ctr., Inc., 569 N.W.2d 369 (Iowa 1997), Ex. RL18, at 376); Acme Elec., Inc. v. Tempest Co., 2003 WL 24054813 (Iowa Dist. Ct. 2003), Ex. RL2, at *6; see also Olson v. Nieman’s, Ltd., 579 N.W.2d 299 (Iowa 1998), Ex. CL34, at 309 ("overly speculative damages cannot be recovered").
11.48.
Where a party’s breach is material, the other party’s obligations are excused. Arthur L. Christoffersen Irrevocable Trust v. Yellow Book USA, Inc., 2007 WL 2610955 (N.D. Iowa 2007), Ex. RL3, at *9 (explaining that the "non-breaching party must show that the breached condition constituted the entire agreed exchange by the other party, or was expressly recognized in the bargain as a condition for the other’s performance in order to discharge its own obligations") (internal quotation marks and emphasis omitted); Roland A. Wilson & Assocs. v. Forty-O-Four Grand Corp., 246 N.W.2d 922 (Iowa 1976), Ex. RL35, at 925-926; accord Lepi Enters., Inc. v. National Envtl. Serv. Corp., 440 F.3d 937 (8th Cir. 2006), Ex. RL22, at 939 (applying Missouri law).
11.49.
Iowa law looks to principles set forth in the Restatement (Second) of Contracts (1981) (the "Restatement") when considering whether a particular breach is material. Van Oort Constr. Co., Inc. v. Nuckoll’s Concrete Serv., Inc., 599 N.W.2d 684 (Iowa 1999) ("Van Oort"), Ex. RL43, at 692; Newton Mfg. Co. v. Clemmons, 868 N.W.2d 202 (Iowa Ct. App. 2015), Ex. RL29, at*8-9; see also In re Central States Mech., Inc., 2011 WL 1637991 (Bankr. D. Kan. 2011), RL14, at *26 (applying Iowa law).
11.50.
In determining whether a contractual breach is material, Section 241 of the Restatement provides that we should consider the extent to which (1) the injured party will be deprived of the benefit of its bargain, (2) the injured party can be adequately compensated, (3) the breaching party will suffer forfeiture, (4) the likelihood that the breaching party will cure its failure and (5) the breaching party comports with standards of good faith and fair dealing. Restatement, RL31, § 241; Van Oort, Ex. RL43, at 692. Accord U.S. ex rel. Greenmoor, Inc. v. Travelers Cas. & Sur. Co. of America, 2009 WL 4730233 (W.D. Pa. 2009), Ex. RL40, at *49 (explaining how the Pennsylvania courts apply Section 241); U.S. ex rel. Virginia Beach Mech. Servs., Inc. v. SAMCO Const. Co., 39 F. Supp. 2d 661 (E.D. Va. 1999), Ex. RL39, at 670-671 (applying Section 241 and finding that a contractor materially breached two construction contracts when it failed to complete a large part of the work).
11.51.
The application of the Restatement factors is "imprecise and flexible". Restatement, Ex. RL31, § 241, comment a.
11.52.
For avoidance of doubt, to the extent we find in this award that either party breached the Upstream Contract, we do not consider any such breach to be a material one that would excuse the other party’s performance. None is severe enough to deprive the other party of the benefit of its bargain under the Upstream Contract. All can be adequately compensated by damages. And we find unsubstantiated any suggestion that either party ever acted in bad faith. See, e.g., CSOC ¶¶ 10.8-10.17; RSOD ¶¶ 4, 133, 147, 159; RSOR ¶ 8 n.7.19

C. Estoppel

11.53.
Before turning to Claimant’s claims, we note as a preliminary matter that Claimant contends that Respondent is judicially estopped from contesting the validity of Claimant’s unpaid invoices. CSOC ¶¶ 9.1-9.4. Specifically, Claimant contends that, in correspondence with the tribunal regarding the amount in dispute, Respondent advised that the net amount of its claims was USD 12 million after reducing the total amount of its claims by the amount Claimant seeks in connection with Payment Applications 19, 20 and 21. Having taken that position and "induced the ICC to charge lower fees" (id. ¶ 9.4), Claimant contends that Respondent is estopped from taking the inconsistent position that Claimant’s invoices are invalid. Id. ¶¶ 9.1-9.4; CSOR ¶¶ 7.1-7.2. See also letter from tribunal to parties, 5 Dec. 2016, Ex. C377; letter from Respondent to tribunal, 15 Dec. 2016, Ex. C377; Hofer v. Bituminous Cas. Corp., 148 N.W.2d 485 (Iowa 1967), Ex. CL19, at 486 (explaining what a judicial admission is).
11.54.
We disagree.
11.55.
We have never understood Respondent to concede the validity of Claimant’s outstanding invoices. In its correspondence regarding the amount of its claims, we understood Respondent to clarify that it seeks to set off against its claims any amounts we might award to Claimant. The Court understood the same. At its session of 31 August 2017, the Court fixed the advance on costs based on a total amount in dispute of USD 32 891 826 (USD 10 261 217 for Claimant’s claims and USD 22 630 609 for Respondent’s claims). We accordingly find no basis to consider Respondent estopped from contesting the validity of Claimant’s invoices.
11.56.
Having said this, we can see how Claimant’s misunderstanding arose. In its submissions, Respondent makes no sharp distinction between its claims and its defenses. Many of Respondent’s "claims" resist payment of amounts Claimant is seeking to recover in these proceedings further to Payment Applications 19, 20 and 21. Others seek affirmative relief in the form of damages. Others do some combination of the two. See Answer ¶ 45; RSOC ¶¶ 9-10, 204; RPH ¶¶ 32-37; see also Wright 2 at 12. And Respondent seems to consider that Claimant’s alleged breaches of the Upstream Contract are material breaches that excuse Respondent’s performance of its payment obligations. See, e.g., RSOD ¶¶ 153-172. In short, Respondent’s claims encompass its defenses and largely overlap with them.
11.57.
For purposes of organizing our award, we address some of Respondent’s claims in section 11D (which is dedicated to "Claimant’s Claims") and others in section 11E (which is dedicated to "Respondent’s Claims"). On the claims we address in section 11D, Respondent principally resists payment of amounts Claimant seeks under Payment Applications 19, 20 or 21. In other words, these claims are principally defenses, so it makes sense for us to deal with them when analyzing "Claimant’s Claims". On the claims we address in section 11E, Respondent principally seeks to claw back amounts Respondent previously paid to Claimant in connection with Payment Applications 1 through 18, as well as to recover rework costs, costs to recreate certain quality control ("QC") documentation and insurance premiums. In other words, these claims principally seek affirmative relief in the form of damages, so it makes sense for us to deal with them under the heading "Respondent’s Claims".
11.58.
For avoidance of doubt, under the circumstances of this case, the overlap between Respondent’s claims and defenses is not material to our decisions. To the extent we reject Respondent’s claims, we also reject them as defenses.

D. Claimant’s Claims

11.59.
In its Request, Claimant originally sought USD 12 065 822 it alleges it is owed in connection with Payment Applications 19, 20 and 21 and retainage in connection with its first 18 Payment Applications.20 Request ¶4.1.
11.60.
Thereafter, Ms. Hadley - Claimant’s expert accountant - reviewed and evaluated all 21 of Claimant’s Payment Applications - totaling USD 69 579 423 - to determine whether they were adequately supported from an accounting perspective. Hadley 1 at 1-20.
11.61.
Specifically, Ms. Hadley (1) verified that Claimant adequately supported the amounts that it billed Respondent under both the fixed-price and reimbursable parts of the Upstream Contract, (2) assessed and verified Claimant’s job cost accounting system and its controls related to identifying billable project costs and preparing Payment Applications, and (3) verified that Claimant had not double-billed Respondent through its Payment Applications. Id. at 1; Tr. 7:1451:20-1454:5 (Ms. Hadley explaining the work she did).
11.62.
Based on her review, Ms. Hadley concluded that certain amounts Claimant billed Respondent in connection with Payment Applications 1 through 18 - amounts Respondent paid - were not adequately supported. She also concluded that some of the unpaid amounts Claimant seeks in this arbitration further to Payment Applications 19, 20 and 21 are likewise not adequately supported. Making adjustments for these amounts, Ms. Hadley concluded that Respondent owes Claimant USD 10 261 217. Hadley 1 at 3-20.
11.63.
Following Ms. Hadley’s analysis, Claimant reduced the total amount of its claims to USD 10 261 217. CSOR at 47.
11.64.
We note that, as part of her initial analysis, Ms. Hadley sampled Claimant’s 223 FCNs that had never been incorporated into the Contract Price, rather than examining all of them. Hadley 1 at 8; sampled FCNs, Ex. C329. Mr. Payne - Respondent’s cost and delay expert - criticized her analysis on this basis. Payne 2 at 19; Cotton Sample FCNs of Total FCN Log, Ex. R70.37. In our view, however, Ms. Hadley’s sampling was sufficient to support her conclusion that Respondent generally reviewed and expressly or impliedly approved FCNs that were not incorporated into the latest negotiated contract value further to a formal change order under Article 7 of the Upstream Contract. We accordingly reject any suggestion that Claimant has no right to be paid for FCN work because the parties never formally amended the Contract Price through a change order. See, e.g., RPH ¶¶ 41-42, 68-71. The question is not whether the parties amended the Contract, but whether Claimant should be paid for the FCN work Respondent had it do.
11.65.
Having said this, Mr. Payne’s criticism prompted Ms. Hadley to review all 223 FCNs that had yet to be incorporated into the Contract Price. Based on this review, at the hearing Ms. Hadley identified eight FCNs where there is no documentation to suggest that Respondent ever expressly or impliedly approved the FCN. Tr. 7:1433:12-1435:7; Hadley PowerPoint, Ex. C711, at 7-9. The billings associated with these appear on Payment Applications 19, 20 and 21 and total USD 290 028. CPH, Appendix 1, Note 4. As Respondent has never expressly or impliedly approved these FCNs, we deny this part of Claimant’s claim.
11.66.
In resisting this conclusion, Claimant notes that, while Respondent never approved these eight FCNs, it likewise never rejected them. Id.-, see also Hadley PowerPoint, Ex. C711, at 7. Claimant bears the burden of proving its claims, however. And that includes proving that Respondent approved the FCNs under which it seeks payment. With respect to eight of them, it has failed to do so.
11.67.
In responding to Ms. Hadley’s analysis, Mr. Wright - Respondent’s accounting expert - contended that Claimant had inadequate controls and procedures surrounding its billing process. According to Mr. Wright this is clear from the fact that there were material errors. Wright 1 at 23; Wright 2 at 4; see also RSOR ¶ 126. We disagree and consider that Ms. Hadley’s analysis demonstrates that Claimant’s billing procedures and controls were generally sound. Hadley 1, Exhibit 1; Hadley 3 at 7-8. The vast bulk of Ms. Hadley’s adjustments do not call into question Claimant’s billing system, but rather concern (1) the way Claimant quantified the amounts it seeks in connection with Payment Application 21, which was prepared outside the ordinary course of business, and (2) the need to retroactively reduce Claimant’s Fixed Fee billings to account for the fact that Claimant did not finish its work before leaving the site. Hadley 1 at 12-19. Indeed, the few billing system errors Ms. Hadley identities - which total USD 27 658 on nearly USD 70 million worth of billing - confirm how rigorous Claimant’s billing system was. Hadley 1 at 8-10.
11.68.
Mr. Wright also criticized Ms. Hadley’s analysis for failing to make adjustments to retainage. See, e.g., Wright 1 at 5, 7, 8, 23. This is not right, however. Ms. Hadley’s adjustments take retainage into account - a point she confirmed at the hearing. Tr. 7:1471:20-1473:10.
11.69.
Mr. Wright also criticized Ms. Hadley’s analysis for failing to include a review of Claimant’s actual costs incurred and paid for reimbursable labor, per diem, mileage, materials and third-party services billed. He also contended that she did not take into account the fixed versus cost-reimbursable elements negotiated by the parties. Wright 1 at 19-23; Wright 2 at 7-11; see also RSOC ¶¶ 137, 173-174; RSOD ¶ 197; RSOR ¶¶ 127-128; RPH ¶ 31.
11.70.
This is not correct.
11.71.
On the contrary, Ms. Hadley’s analysis distinguishes between the fixed and cost-reimbursable elements under the Contract. Indeed, her analysis is particularly rigorous on this score. Hadley 1 at 7-19. And it tests whether Claimant’s billings were consistent with the terms of the Contract and the underlying records. This did not require reviewing Claimant’s actual costs but rather checking that Claimant’s billings were appropriate in light of (1) the rates the parties had negotiated and agreed (e.g., for labor, per diem, mileage) and (2) the amounts invoiced by Claimant’s subcontractors and vendors. With regard to the latter, Ms. Hadley reconciled 87% of the billed amounts - which related to Thorpe and Energy Specialty Contracting - to the underlying subcontractor invoices. With regards to the remaining 13%, Ms. Hadley sampled amounts invoiced by other subcontractors and ensured that the amounts appeared allocable to the Project and that the subcontractors had incurred the costs within Claimant’s period of performance. Id. at 11. We consider this the appropriate analysis. Tr. 7:1459:5-19, 7:1465:12-1466:2, 7:1478:10-1479:21, 7:1502:13-1507:14 (Ms. Hadley explaining why it would not be appropriate to look at actual costs in the context of this case).
11.72.
Having said this, we note that Mr. Wright states that Payment Applications 5 and 19 contain overcharges totaling USD 23 938 (rounded) related to invoices from Reif Oil Company and Airgas. Wright 1 at 9 (USD 53.50 on Payment Application 5) and 18 (USD 23 884.84 on Payment Application 19). In this regard, we understand Mr. Wright to have identified specific overcharges from Claimant’s vendors that Ms. Hadley’s sampling failed to catch and consider that any award we make to Claimant should be reduced by this amount.
11.73.
Mr. Wright also tried to cast doubt on the labor database Ms. Hadley used for her analysis. Mr. Wright seemed to suggest that it was somehow not an accurate copy of Claimant’s labor database. His concern seems to have stemmed from the fact that the meta-data of "what’s been characterized as [Claimant’s] labor database" - which appears in the record as Exhibit C319 - indicates that the "author of that spreadsheet and the originator of that file is Cotton & Company." Tr. 7:1524:13-1525:2; see also Wright 1 at 19-20. However, Ms. Hadley confirmed at the hearing that C&C had not changed any of the information in Claimant’s labor database. It did, however, run searches on the data. Once these searches are done, the meta-data will indicate that C&C is the author/originator of the file. Tr. 7:1485:16-1486:24.
11.74.
In short, subject to the adjustments noted above (¶¶ 11.65, 11.72), we consider Ms. Hadley’s analysis well-supported and persuasive and find Claimant’s claims adequately supported from an accounting perspective. We accordingly do not agree with Respondent to the extent it broadly contends that the amounts Claimant seeks further to Payment Applications 19, 20 and 21 (or, for that matter, the amounts Claimant previously billed and Respondent paid further to Payment Applications 1 through 18) are unreasonable, not authorized under the Upstream Contract or not adequately supported by documentation. See, e.g., RSOD ¶¶ 134-144; RPH ¶ 40.
11.75.
This, however, is not the end of the story. There may be other reasons -in fact or in law - that Claimant is not entitled to all the money it seeks.

Mark-Up on FCN Work

11.76.
Respondent contends that Claimant improperly included in Payment Application 21 an unauthorized 25% mark-up on all FCNs that had been invoiced to date in an amount totaling USD 1 135 305. Payment Application 21, Ex. C310, at 7. Respondent contends that there is no agreed contractual basis for this charge. Answer ¶ 41; RSOC ¶¶ 44(c), 144, 182; RSOD ¶ 169(c); RSOR ¶¶ 45-46, 125-126; RPH ¶¶ 33, 60; Payne 1 at 17; Payne 3 at 21; Wright 1 at 7-8; Wright 2 at 6-7.
11.77.
We disagree.
11.78.
As explained above (¶¶ 11.10-11.20), the scope of Claimant’s work on the Upstream Ammonia Plant increased over time to include not only the original Primary Reformer, but also the Secondary Reformer and, eventually, 1001/1002 Piping. With each increase in the scope of Claimant’s work, the parties negotiated and agreed an increase in the amount of the fixed elements under the Upstream Contract, including Fixed Fee to cover Claimant’s corporate overhead, general and administrative costs, unbilled Project costs and profit. Compare Upstream Contract, Ex. Cl, Art. 4.1.l(i) with Amendment 1, Ex. C2, ¶ 2 and Amendment 2, Ex. C3, ¶ 2.
11.79.
In addition, Claimant did a substantial amount of work that fell outside its contractual scope further to FCNs. See supra ¶ 11.21. And apart from what Claimant seeks in connection with FCN work on Payment Applications 19, 20 and 21, Respondent paid Claimant for that work. By and large, however, Claimant’s billings for FCN work did not include any amount of Fixed Fee. This was because, with regard to most FCNs, no amount for Fixed Fee was ever negotiated and agreed between the parties before their relationship broke down. Hadley 1 at 16-19; Hadley 3 at 5-6; Hadley PowerPoint, Ex. C711, at 11.
11.80.
Both Ms. Hadley and Mr. Wright agree that Claimant is entitled to some amount of Fixed Fee on its FCN work. Hadley 1 at 17; Tr. 7:1529:16-21 (Mr. Wright testifying that he does not "disagree that a contractor should get fee on its FCNs on any of its work. In fact, I agree they should"). But Mr. Wright suggests a mark-up of 11.83%, as opposed to 25%. Tr. 7:1529:24-1530:10. In computing its claim, Claimant used the same methodology the parties had used in the past when negotiating Fixed Fee increases. Hadley 2 at 5-6; Tr. 7:1482:3-1483:7 (Ms. Hadley explaining how Claimant computed its claim); see also Hadley PowerPoint, Ex. C711, at 11. We accordingly prefer Claimant’s approach to the quantification of its claim.
11.81.
We note that Claimant has already reduced the amount of its claim on this score from USD 1 135 305 to USD 911 763 further to adjustments Ms. Hadley suggested. Hadley 1 at 17. In addition, as explained above (¶ 11.65), we have decided to deny USD 290 028 in FCN work that Claimant claimed. We accordingly also deny the amount of the mark-up Claimant seeks in connection with this work, which totals USD 72 507 (25% of USD 290 028 = USD 72 507).

Extension of Time and Change in Contract Price

11.82.
Respondent also contends that Claimant improperly included in Payment Application 21 an amount of USD 2 534 148 under the heading "Extension of Time & Change in Contract Price". Payment Application 21, Ex. C310, at 6. Through this amount, Claimant seeks additional compensation for critical delay. Respondent considers that Claimant’s claim is meritless. Answer ¶ 44; RSOC ¶¶ 44(b), 146-147; RSOD ¶ 169(b); RPH ¶¶ 43-45, 61-67; Payne 1 at 21-23; Payne 2 at 2-9; Wright 1 at 6-7.
11.83.
We agree.
11.84.
Article 5.1.6 of the Upstream Contract provides that Claimant may be granted an extension of time for completion of its work and an increase in the contract price where Respondent causes Claimant critical delay. In this regard, Claimant must furnish Respondent "detailed information concerning the circumstances of the delay, the number of days actually delayed, and any measures taken or suggested to be taken to minimize the delay." Where Claimant is entitled to an extension of time, it "may also be entitled to its reasonable costs incurred as a result of such delay together with its overhead and profit".
11.85.
In seeking USD 2 534 148 for "Extension of Time & Change in Contract Price", Claimant looks to recover additional amounts for Fixed Fee, Fixed Indirect Costs and Fixed Plant and Equipment Costs it contends it deserves because Respondent delayed the critical path of its work. Specifically, Claimant contends that Respondent caused it critical delay by (1) failing to promptly decide to order new formwork for the Secondary Reformer and (2) failing to timely supply Claimant with materials it needed to do its work, particularly with respect to 1001/1002 Piping. Reply ¶¶ 23, 37, 44; CSOC ¶¶ 2.5-2.6, 5.1-5.48, 7.1-7.21, 7.40-7.41; CSOD ¶¶ 170-171, 175, 194; CSOR ¶¶ 3.1-3.7; D’Onofrio 1 at 16-30, 34-40, 48-50; D’Onofrio 2 at 8-14; D’Onofrio 3 at 6-12, 15-19, 22-23; Hadley 1 at 12-16; Hadley PowerPoint, Ex. C711, at 22-25; Aiken ¶ 55; J. Campesi 2 ¶ 8; Clark ¶ 21; Hawley ¶ 40; Noto 1 ¶¶ 7-39; Noto 2 ¶¶ 33-35; Noto 3 ¶¶ 5-11.
11.86.
Before turning to these two issues - formwork delay and materials delay -we note that, in its submissions, Claimant contends that it suffered delays for a wide variety of reasons attributable to Respondent. These include late release of the Secondary Reformer vessel, the vessel’s being rusted and out of round, the need to repair and lengthen anchors on the inside of the vessel, cracked welds made during the vessel’s fabrication, limited access to the work site, delayed receipt of small bore pipe supports, and additional FCN work (arch burner piping, tunnel burner duct expansion joints, grating modifications). See, e.g., CSOC ¶¶ 6.1-6.42, 7.22-7.40; CSOR ¶¶ 4.1-4.8, 5.15-5.19; D’Onofrio 1 at 30-34, 40-48; Aiken ¶¶ 54, 57-58; Noto 1 ¶¶ 30-31, 37; Noto 3 ¶¶ 12-14; Posey ¶ 19.
11.87.
We understand, however, that Claimant only alleges critical delay arising from Respondent’s failure to promptly decide to order new formwork and failure to timely supply Claimant with materials. See D’Onofrio 1 at 48-50 (noting that the formwork was "on the critical path" and that, "[f]ollowing completion of the secondary reformer refractory installation, delays in delivery of Area 1001/1002 piping materials took over the critical path"); see also Tr. 6:1333:13-1334:24 (Mr. D’Onofrio acknowledging that the delays due to rust and the need to repair and lengthen anchors inside the vessel were concurrent with the formwork delay). Indeed, when Claimant originally asked Respondent for an extension of time and change in contract price in the fall of 2015, it based its request solely on formwork delay. Letter from Claimant to Respondent, 13 Oct. 2015, Ex. C14 (requesting an extension of time and change in the contract price as a "result of the anticipated duration for fabricating the new form sections as well as the extended period to secure OCI’s agreement and approval to purchase said forms"). It then later informed Respondent that it would be revising its request "to include the additional delay created by the lack of available material." Monthly Report, Nov. 2015, Ex. C102, at 15.
11.88.
We accordingly consider these to be the only two sources of delay that are material to our consideration of Claimant’s claim for an extension of time and change in contract price. For avoidance of doubt, to the extent Claimant bases its claim on any other sources of delay, we dismiss the claim for lack of evidence that the alleged delays were critical.
11.89.
Formwork Delay. In August 2014, Claimant asked Thorpe to submit a bid for installing castable refractory in the Secondary Reformer. Noto 1 ¶ 6. Castable refractory has a consistency like cement and is used to line the interior wall of the reformer vessel to protect it from the extreme temperatures inside the reformer. This is done by inserting formwork inside the vessel and then pouring the refractory between the formwork and the inner wall of the vessel. The formwork holds the refractory against the inner wall of the vessel while it dries. Once the refractory has hardened, the formwork is removed and the refractory liner remains. Id. ¶ 9.
11.90.
On 29 August 2014, Thorpe submitted its bid and Claimant accepted it. Thorpe’s bid was based on a package of nine KBR drawings Respondent had provided - KBR Drawings F172-MD-DWG-MD3-103D-403D01 through 403D09 - as well as KBR Technical Standard Pl 1-4TS-US-ON-M&U ("P11"). Although Respondent did not include P11 in the bid package, Thorpe took it into consideration because it knew from prior work it had done on KBR reformers that it would apply. Id. ¶¶ 7-8.
11.91.
The Secondary Reformer stands over 70 feet high. The interior is divided into two sections separated by a brick dome. The section above the dome is about three times as high as the section below the dome. See Shenouda 2 ¶ 9; D’Onofrio PowerPoint, Ex. C710, at 4 (Secondary Reformer Cross-Section (Elevation View)).
11.92.
Based on P11 and the drawings in the bid package, Thorpe planned to pour the refractory above the dome in multiple sections. The formwork, which Thorpe ordered in January 2015, was accordingly engineered with this section-by-section approach in mind. The formwork arrived on site in February 2015. See email from Thorpe to Blumenthal Sheet Metal Company ("Blumenthal"), 7 Jan. 2015, Ex. T17 (transmitting Thorpe’s acceptance of Blumenthal’s quote to make the formwork); Blumenthal quote, 6 Jan. 2015, Ex. T4; Monthly Report, Feb. 2015, Ex. C74, at 17 (noting that the formwork had arrived on site).
11.93.
In April 2015, Respondent provided Claimant with KBR Specification F172-302-CPS ("302-CPS"). Transmittal from Respondent to Claimant, 7 Apr. 2015, Ex. C75. 302-CPS, which Respondent had failed to include in the bid package, provided that the refractory should be installed in a single, continuous pour above the dome to avoid any cold joints in the lining. 302-CPS, Ex. C76, ¶¶ 15.1, 15.6-15.7.
11.94.
Thorpe considered 302-CPS to be in tension with P11 because P11 refers to pouring refractory in "360-dergee bands". P11, Ex. C72, ¶ 2.1.14. P11 also contemplates there being joints in the refractory and recommends placing the forms "so that construction joints do not fall in nozzles or critical areas". Id. ¶ 2.4.6. Thorpe also considered 302-CPS to be internally inconsistent because it set forth a protocol for situations where the pour is not continuous. 302-CPS, Ex. C76, ¶ 15.1(g). See Noto 1 ¶¶ 13, 16.
11.95.
On 8 May 2015, Thorpe met on site with KBR and Weitz - another company in the Orascom group that handled quality assurance and quality control ("QA/QC") on the Project for Respondent - to discuss Thorpe’s plans for installing the refractory. Mr. Campbell, who attended the meeting for Thorpe, testified that KBR’s representative, Mr. Bhatt, said that pouring the refractory in multiple sections would be acceptable. Campbell ¶¶ 7-10. Mr. Bhatt has denied this. Bhatt ¶¶ 6-7, 13. However, Mr. Bhatt was unable to remember correctly who had been present at the meeting. Tr. 4:897:1-20 (Mr. Bhatt acknowledging that he is unsure with whom he met); see also Noto 3 ¶¶ 5-6, 9; Campbell ¶¶ 5-6. In light of this, we prefer Mr. Campbell’s evidence as to what was said at the meeting.
11.96.
On 19 May 2015, Thorpe attended a pre-bid meeting in Louisiana for work on a similar KBR reformer. The KBR representative at this meeting, Mr. Darrell Svec, said that he wanted the refractory for the Louisiana reformer installed in one continuous pour above the dome. See email from Thorpe to Claimant, 26 May 2015, Ex. T6, at 1-2.
11.97.
On 26 May 2015, Thorpe informed Claimant of the Louisiana meeting and sought guidance in light of the conflicting statements from KBR. Thorpe stated that it was open to pouring the refractory above the dome in one continuous pour, but wanted to know "officially". Id. at 2. Thorpe also stated that a single, continuous pour would require new, stronger formwork to withstand the increased head pressure. Thorpe asked Claimant how it should proceed. Id.
11.98.
In early June 2015, Thorpe met with KBR, Claimant, Respondent and Weitz regarding the continuous pour requirement in 302-CPS and how to proceed. KBR confirmed that a single continuous pour should be done above the dome. Thorpe confirmed that it was prepared to do this, but insisted that this would require ordering new, stronger formwork that could withstand the pressure. Respondent pushed back against the idea that new formwork would be needed. Noto 1 ¶ 20; Noto 2 ¶¶ 34-35; email chain between KBR, Claimant, Respondent and Weitz, 3 Jun. 2015, Ex. C152, at 1 (confirming that a sectional pour resulting in cold joints is "not advisable").
11.99.
On 5 June 2015, Claimant sent Respondent a formal Request for Information ("RFI") seeking clarification on how to proceed. Claimant asked that Respondent provide an answer within four days (by 9 June 2015). Respondent did not respond for over three months (until 15 September 2015). RFI, 5 Jun. 2015, Ex. C600, at 3.
11.100.
In the meantime, Respondent continued to question the need for new formwork and requested increasingly detailed proof that the original formwork would not suffice. See, e.g., Thorpe internal email, 12 Jun. 2015, Ex. T8 (noting that Respondent has requested an "engineered statement" as to whether the original formwork would work or could be used with additional bracing); Monthly Report, Jun. 2015, Ex. C78, at 11 (noting that Respondent had "requested ‘engineered’ proof explaining the potential failure of the existing forms"); Meeting Minutes, 9 Jul. 2015, Ex. R67X, at 1 (noting that Claimant was to "[p]rovide engineering calculations from Thorpe for 103-D Formwork").
11.101.
At the end of June 2015, Thorpe engaged an Indian company called P-Mech to carry out an engineering analysis, and Claimant issued FCN-222 indicting that it would take between four and six weeks to get new forms at an estimated cost of USD 126 000. Noto 1 ¶ 22; FCN-222, 25 Jun. 2015, Ex. C79.
11.102.
On 10 July 2015, Claimant informed Respondent that Thorpe and P-Mech had done load/pressure calculations that showed that the original formwork could not withstand a continuous pour and that new, stronger formwork would be needed. Email from Claimant to Respondent, 10 Jul. 2015, Ex. C155, at 1 (transmitting Thorpe’s explanation to "substantiate their reasoning to replace the existing fabricated forms with forms fabricated of a heavier material").
11.103.
On 15 July 2015, Respondent asked Claimant to "expedite the delivery of the new formwork" and also asked Claimant to "provide engineering documentation and calculation verifying and substantiating the lack of strength of the Engineer’s [KBR’s] proposed formwork specification, as well as making arguments for the reasons stiffeners cannot be used." Letter from Respondent to Claimant, 15 Jul. 2015, Ex. C82, ¶ 26.
11.104.
The following week, however, Respondent "halted plans" for the new formwork "until an execution strategy could be finalized". Weekly Report, 30 Jul. 2015, Ex. C208, at 37 (noting that "plans agreed to by [Respondent] last week were not accepted by KBR"); Weekly Report, 2 Aug. 2015, Ex. C210, at 3 (noting that Claimant had "cancelled engineering of the New Forms, as originally anticipated"); see also email from Claimant to Thorpe, 22 Jul. 2015, Ex. C83 (asking Thorpe to "cease all activities relative to the Engineering of New 103-D Forms").
11.105.
At the end of July 2015, Claimant again sought Respondent’s determination on the "path forward" with respect to the new formwork and FCN-222. Letter from Claimant to Respondent, 31 Jul. 2015, Ex. C12, at 3.
11.106.
On 14 August 2015, Thorpe poured the refractory below the dome, as this work was unaffected by the issue of the formwork needed for the pour above the dome. The original formwork was strong enough to support this much smaller pour. Noto 1 ¶ 32.
11.107.
In late August/early September 2015, Thorpe sent Claimant the results of P-Mech’s analysis of the original formwork as well as the proposed stronger formwork. The analysis again confirmed the original formwork would fail under a continuous pour and that new formwork of nearly double the original thickness would be sufficient. Email from Thorpe to Claimant, 28 Aug. 2015, Ex. C88, at 3-4; letter from Thorpe to Claimant, 2 Sept. 2015, Ex. T12.
11.108.
On 12 September 2015, Claimant sent Respondent a revised FCN-222 that took into account P-Mech’s analysis and estimated the cost of new formwork at USD 78 000 with expected delivery in four to five weeks. FCN-222 (Rev. 1), Ex. C89, at 2.
11.109.
On 14 September 2015, Respondent directed Claimant to order the new formwork and "submit engineering proof that requested forms would not withstand the specific pressures, in contrast to the specifications issued by the Engineer [KBR]." Letter from Respondent to Claimant, 14 Sept. 2015, Ex. C89, at l.
11.110.
On 15 September 2015, Respondent responded to Claimant’s RFI from 5 June 2015. Respondent referred to its letter from the day before and specified that Claimant should "submit engineering proof from third party with the calculation sheet". RFI, 5 Jun. 2015, Ex. C600, at 3. Respondent also told Claimant to wait to order the new formwork until Weitz could survey the inside of the vessel. Email from Respondent to Claimant, 15 Sept. 2015, Ex. C90, at 4.
11.111.
On 18 September 2015, Claimant sent Respondent the detailed engineering reports from P-Mech. Email from Claimant to Respondent, 18 Sept. 2015, Ex. C92.
11.112.
On 20 September 2015, Weitz completed its survey of the inside of the vessel. Transmittal from Respondent to Claimant, 21 Sept. 2015, Ex. C95, at 3-4.
11.113.
On 22 September 2015, Respondent directed Claimant to proceed with the fabrication of the new formwork and Claimant placed the order with Thorpe the same day. Email from Respondent to Claimant, 22 Sept. 2015, Ex. C90, at 2-3; see also letter from Respondent to Claimant, 23 Sept. 2015, Ex. C95.
11.114.
The new formwork arrived on site in late October and early November 2015. Noto 1 ¶ 38; D’Onofrio PowerPoint, Ex. C710, at 6.
11.115.
On 10-11 November 2015, Thorpe installed the refractory above the dome. Noto 1 ¶ 39.
11.116.
Under these circumstances, we consider that any delay associated with installing the refractory in the Secondary Reformer lies at Respondent’s door. In early June 2015, KBR clarified that it would require a single continuous pour above the dome and Thorpe was willing to do this. Thorpe realized straightaway that this would require new, stronger formwork and told Respondent so. P-Mech confirmed Thorpe’s position in mid-July 2015 and repeatedly thereafter. Instead of promptly accepting the need for new formwork, however, Respondent hesitated, repeatedly asked for evidence that this was really necessary and failed to take a decision for months. This, in our view, was the cause of any delay and we reject any suggestion to the contrary. See, e.g., RSOD ¶¶ 23-27.
11.117.
Respondent resists this conclusion on the grounds that Thorpe should have realized that a continuous pour above the dome would be required before it ordered the original formwork back in January 2015. RSOD ¶¶ 10-19, 23; RSOR ¶¶ 78-79, 125; RPH ¶¶ 63-64, 72-73; Bhatt ¶¶ 8-13; Shenouda 2 ¶¶ 8-18. Specifically, Respondent contends that, even though Respondent did not include 302-CPS in Thorpe’s bid package, the drawings Respondent did provide made reference to it. Drawing 403D09, Ex. C73. Respondent considers that Thorpe should have noticed this reference when reviewing the drawings and requested 302-CPS before ordering the original formwork. In addition, the drawings Respondent provided to Thorpe included a field note instructing that "before pouring castable, field to make sure that there is a sufficient quantity on hand to complete the job, that once the pouring begins the pouring operation is not interrupted until the vessel is lined with castable as shown in the elevation view." Drawing 403D08, Ex. C71 (capitalization omitted). The drawings also stated that the refractory "must be monolithic...no cold joints are allowed". Drawing 403D09, Ex. C73 (capitalization omitted).
11.118.
Assuming arguendo that Respondent is right on these points, Thorpe’s failure to order the correct formwork from the get-go would still only be a but for cause of any delay. Respondent could have averted any delay to the refractory installation by promptly deciding to order the new, stronger formwork that was needed. Had it done so in June (or even July), the new formwork could have arrived in time for the refractory above the dome to be poured in August 2015 along with the refractory below the dome.21 It is accordingly Respondent’s indecision that is the proximate cause of any delay.
11.119.
This finding, however, does not get Claimant home. To succeed on this aspect of its claim, Claimant has to persuade us that it suffered critical delay as a result of the formwork issue. It is here that Claimant’s evidence falls short.
11.120.
In his first report, Mr. D’Onofrio - Claimant’s delay expert - refrained from quantifying the critical delay associated with the formwork issue. This was conspicuous, particularly as Article 5.1.6 of the Upstream Contract expressly requires Claimant to specify the number of days it was critically delayed. Respondent seized on this lacuna in responding to Mr. D’Onofrio’s first report. Despite this, Mr. D’Onofrio continued to refrain from quantifying Claimant’s critical delay in his subsequent reports. This was even more conspicuous.
11.121.
Mr. Payne has cast doubt on the reliability of Claimant’s work schedules and suggested that this may explain why Mr. D’Onofrio is pulling his punches. Payne 1 at 27; Payne 2 at 8-9, 17-18; Payne 3 at 10-13. When the tribunal pressed Mr. D’Onofrio at the hearing to specify the number of days of critical delay, Mr. D’Onofrio seemed more uncomfortable than certain. See Tr. 6:1350:1-12, 6:1351:5-1353:22. Eventually, Mr. D’Onofrio made reference to one of the timelines he had prepared for these proceedings, but he does not quantify Claimant’s critical delay there either. Tr. 6:1370:17-21; Secondary Reformer (103-D) Timeline, Ex. Cl59. Under these circumstances, Mr. D’Onofrio’s hesitancy has left us feeling more queasy than convinced about this aspect of Claimant’s claim.
11.122.
Mr. D’Onofrio has suggested that it is for Respondent to demonstrate that Claimant delayed the critical path. D’Onofrio 1 at 50. But Respondent has no such obligation. It is rather for Claimant to prove that Respondent delayed the critical path by a number of days that justifies the extension and increase in the contract price Claimant seeks. Claimant has failed to do so.
11.123.
Materials Delay. Claimant also contends that it was critically delayed by Respondent’s failure to timely provide it materials it needed for its work, particularly with respect to 1001/1002 Piping. According to Claimant, the lack of materials required it to bounce around from work front to work front - depending on what materials might be available - as opposed to progressing the work in an orderly and efficient manner.
11.124.
That Respondent fell sort on its obligation to provide materials cannot be gainsaid. The record shows that Claimant began complaining to Respondent in early May 2015 that it lacked the materials it needed to do its work efficiently, and it never stopped complaining. Weekly Reports from May 2015, Ex. C204, at 5, 15, 36, 43; Weekly Reports from June 2015, Ex. C207, at 12, 24; Weekly Reports from July 2015, Ex. C208, at 5, 12-13, 24-25, 37; Weekly Reports from August 2015, Ex. C210, at 5, 12, 26, 34, 42, 44; Weekly Reports from September 2015, Ex. C211, at 4-5, 12-13, 20-21, 28; Weekly Reports from October 2015, C212, at 5, 13-14, 21-22, 28, 34, 36; Weekly Reports from November 2015, Ex. C213, at 6, 13, 20, 25, 27; Weekly Reports from December 2015, Ex. C214, at 3, 5, 13, 21; Weekly Reports from January 2016, Ex. C215, at 6, 12-13, 18-19, 24.
11.125.
See also Monthly Report, May 2015, Ex. Cl57, at 14; Monthly Report, Jun. 2015, Ex. C78, at 14, 19-20, 58-59; Monthly Report, Jul. 2015, Ex. C81, at 15, 17-18, 21, 51-56; Monthly Report, Aug. 2015, Ex. C87, at 18-20, 64-81; Monthly Report, Sept. 2015, Ex. C97, at 16-17, 20; Monthly Report, Oct. 2015, Ex. C99, at 14-16, 18, 38-43; Monthly Report, Nov. 2015, Ex. C102, at 14-15, 41-46; Monthly Report, Dec. 2015, Ex. C103, at 14-15, 51-61; letter from Claimant to Respondent, 2 Oct. 2015, Ex. Cl27 (expressing concern regarding delays caused by missing materials); letter from Respondent to Claimant, 26 Oct. 2015, Ex. C162, at 1 (advising Claimant to "plan work in accordance with the available material"); letter from Claimant to Respondent, 9 Jan. 2016, Ex. C129, at 2 (noting that Claimant has consistently documented the "delays created by inefficiencies associated with missing material").
11.126.
Ultimately, Claimant was unable to finish its work on the Primary and Secondary Reformer before leaving the site because it lacked the materials it needed. Letter from Claimant to Respondent, 30 Jan. 2016, Ex. C148, at 3 (Claimant’s demobilization plan).
11.127.
Respondent contends that any materials issues were, in fact, Claimant’s responsibility because Claimant’s processes for requisitioning, tracking and caring for materials in its possession were chaotic and uncontrolled. RSOC ¶¶ 127-136, 138-139, 176-179; RSOD ¶¶ 33-67; RSOR ¶¶ 81-85, 125; RPH ¶¶ 65, 81; Payne 1 at 8-9; Payne 2 at 10-11; Payne 3 at 6-10 and Appendix 1 (Pipe Spools), Appendix 2 (Spools Available, Work Planned but Performed Late, No Further Materials Requested), Appendix 3 (Spools Available, Work Conducted, Requisitions Made Late) and Appendix 4 (Requisitions); Bill of Materials, Ex. R83C14.
11.128.
Much of the evidence for this view is anecdotal. Butcher ¶¶ 5-7; Conklin 1 ¶¶ 6-15; Conklin 2 ¶¶ 6-29; Conklin 3 ¶ 41; Ghantous 1 ¶ 23; Ghantous 2 ¶ 4; Rosario ¶¶ 9-19, 21; Tr. 2:289:8-10 (Mr. Rosario describing Claimant’s material management at the Project as a "circus"). And what little documentary evidence there is appears to date from late 2015 and early 2016 when the parties’ relationship had already soured, making it of little value in our view. See OCI-MEI Upstream Requisition Log, 4 Nov. 2015, R70.13 (noting that Claimant had in fact already received a few of the many pieces it claimed were missing); email from Respondent to Claimant, 9 Nov. 2015, Ex. R70.14 (seeking clarification as to why Claimant has ordered more materials than called for on the isometrics); letter from Respondent to Claimant, 16 Dec. 2015, Ex. Cl64 (same); OCI-MEI Upstream Requisition Log, 12 Jan. 2016, R70.17 (same); lists of assorted materials requested versus materials specified on isometrics, Exs. R21D and R70.15.
11.129.
Respondent has attempted to make much of alleged deficiencies in Claimant’s material requisition forms. See, e.g., RSOD ¶¶ 46, 55-59, 67; Conklin 2 ¶¶ 10-12, 16-17, 19-20, 25-27; email from Ryan to Claimant, 28 Aug. 2015, Ex. R69C, at 1 (noting a typo in one of Claimant’s requisition forms); email exchange between Ryan and Claimant, 30 Aug. 2015, Ex. R69D (noting that Claimant already received some of the materials it thought were missing); email exchange between Ryan and Claimant, 30 Oct. 2015, R69E (same); email exchange between Ryan and Claimant, 9-10 Oct. 2015, Ex. R69G (noting that some of Claimant’s requests are missing material class numbers); email from Ryan to Claimant, 3 Nov. 2015, Ex. R69H, at 1 (noting that size information is missing from Claimant’s requisition form); selected requisition forms, Jun. through Dec. 2015, Ex. R70.18 (many requesting materials "ASAP"); selected requisition forms, Jun. through Aug. 2015, Ex. R70.19 (same); selected requisition forms, Jun. through Dec. 2015, Ex. R83C11 (same); email from Claimant to Ryan, 23 Oct. 2015, Ex. R69I (enclosing same); email from Ryan to Claimant, 27 Oct. 2015, Ex. R69J (noting that some of Claimant’s requests "were dated as needed 2 days ago and I just received them"); email from Claimant to Ryan, 27 Oct. 2015, Ex. R69K (asking that Ryan disregard two requests that Claimant will resubmit with correct information); email from Ryan to Claimant, 28 Oct. 2015, Ex. R69L (noting that the "date needed is already three days past"); chart of Information Based on Material Requisition Form and Analysis, Ex. R70.20 (listing Claimant’s requisition requests from May 2015 through January 2016 and Respondent’s responses to them).
11.130.
We fail to see how these problems were of any material significance. While Claimant’s materials processes were doubtless imperfect - all such processes are - nothing in the record persuades us that they were the problem. In our view, the problem was rather Respondent’s failure to timely provide the materials it was required to provide. Indeed, Claimant was not the only one of Respondent’s contractors to suffer materials shortages. Respondent’s other contractors faced similar problems. Respondent internal email, 30 Jun. 2015, Ex. C563, at 2 (remarking that "[o]ur site has become a black hole; a lot of missing material that does not make sense"); email from Ryan to Respondent, 19 Sept. 2015, Ex. C564, at 1 ("We are finding that Ryan’s and [Claimant] share very similar problems in chronic materials shortages").
11.131.
Again, however, this does not get Claimant home. Claimant has to persuade us that it suffered critical delay as a result of the materials issue that was substantial enough to support the extension and increase in the contract price it says it deserves. It has not done so. Indeed, Claimant acknowledges that it is not possible to quantify any critical delay arising from materials issues. Under these circumstances, we consider that Claimant has failed to prove this aspect of its claim.
11.132.
In light of the above findings, we decline to award Claimant the USD 2 534 148 it seeks under Payment Application 21 for an extension of time and increase in the contract price.

Additional Accounting Adjustments

11.133.
Respondent seeks a downward adjustment of USD 19 934 for errors related to Payment Application 19 and/or Payment Application 20. RPH ¶ 38 (making reference to Payment Application 19 (in the heading) and Payment Application 20 (in the paragraph itself)). In this regard, Respondent refers to pages 10 through 12 of Mr. Wright’s first report, as well as his presentation at the hearing. Id. ¶38n.77. Respondent contends that such an adjustment is needed to correct for "duplicate billings, data entry errors, and misapplied per diem rates". Id. ¶ 38.
11.134.
We disagree.
11.135.
As a preliminary matter, we note that this claim is difficult to understand because we have been unable to identify in the referenced materials from Mr. Wright USD 19 934 worth of small billing errors in Payment Application 19 and/or Payment Application 20. Mr. Wright does deal with these sorts of errors, but he does so at pages 13 through 19 of his first report. See also Wright PowerPoint, Ex. R119, at 10-12. None of the errors he mentions there seems to concern either Payment Application 19 or Payment Application 20, however. Wright 1 at 13-19 (addressing small billing errors in Payment Applications 4-7, 10-12 and 16). And through these errors it appears that, all tolled, Claimant under billed Respondent by about USD 60 000.
11.136.
Taking into account the adjustments we discuss above (¶¶ 11.65, 11.72, 11.81, 11.132), we consider that Claimant is entitled to recover USD 7 340 596 on its claims (USD 10 261 217 - USD 290 029 -USD 23 938 - USD 72 507 - 2 534 148 = USD 7 340 596).

E. Respondent’s Claims

11.137.
Before addressing Respondent’s affirmative claims, we make a preliminary observation.
11.138.
Respondent’s claims are closely tied to the expert evidence of Messrs. Payne and Wright. Over the course of these proceedings, Mr. Payne provided three reports and Mr. Wright provided two. Both experts also made presentations at the hearing. See Payne PowerPoint, Ex. R118; Wright PowerPoint, Ex. R119. Their views evolved over time. At the close of the hearing, we asked Respondent to clarify its prayers for relief in its post-hearing submission, so that we could understand exactly what amounts Respondent is seeking and why. Tr. 7:1564:20-1565:10.
11.139.
In that submission (¶ 113), Respondent clarified that it is seeking a "net" award of USD 11 668 409, but it is not entirely clear to us what all the constituent elements of this amount are. See also Wright 2 at 12. Based on our study of Respondent’s submissions and the evidence of its experts, we understand that Respondent seeks damages on eleven separate grounds. We address each in turn below. For avoidance of doubt, to the extent Respondent considers that it sought any other amounts on any other grounds, we deny any such claims for lack of evidence.
11.140.
First, Respondent seeks USD 1 359 401 on the grounds that Claimant - in conjunction with Thorpe - allegedly invoiced Respondent for materials with inadequate substantiation or evidence of delivery. See Answer ¶¶ 36-37; RSOC ¶¶ 8, 10, 136-139, 163, 173-175; RSOD ¶¶ 7, 169(a); RPH ¶¶ 26, 81; Payne 1 at 7-9 and Appendix 2 (Thorpe Budget Estimate Proposal Summary); Thorpe Accumulation, Ex. R23.05; letter from Harbinson Walker International to Thorpe, Ex. R23.06; Thorpe Material Receipt Tickets list, Ex. R23.07.
11.141.
In this regard, Respondent contends that, as a general matter, Claimant did not maintain adequate control of the materials it was provided for construction, leading to waste, inefficiency, unnecessary work and added costs (primarily incurred by Respondent) to purchase replacement materials unnecessarily. Respondent notes, in particular, that Claimant was responsible for arranging for the refractory materials needed for lining the interior of the Secondary Reformer vessel. Claimant did this through Thorpe. Thorpe initially estimated that the cost of these materials would be USD 2 563 970, but the amount Thorpe ultimately invoiced was USD 3 923 371. Respondent contends that Claimant has not satisfactorily explained the difference (USD 3 923 371 - USD 2 563 970 = USD 1 359 401).
11.142.
We disagree.
11.143.
Thorpe’s initial estimate for the cost of refractory materials was just that, an estimate. The fact that the actual costs were higher than the original estimate does not, in and of itself, give rise to a claim for the difference between the two, particularly as Thorpe’s scope of work increased substantially. Hadley PowerPoint, Ex. C711, at 31. There is no evidence that the actual amount invoiced was improper. And we are unaware of any provisions of the Contract or applicable law that support Respondent’s position.
11.144.
As noted above (¶ 11.130), Claimant’s processes with respect to materials were doubtless imperfect, but this is insufficient to establish that Respondent is entitled to the amount it seeks with respect to the materials at issue here. In an effort to overcome this, Respondent states that, after Claimant left the site, it discovered a large volume of excess refractory materials when it was demobilizing from one of the Project warehouses. Respondent estimates the cost associated with this excess material at USD 113 033 and contends that this partially explains the substantial overrun in Thorpe’s materials costs and demonstrates how irresponsible Claimant/Thorpe were in their material ordering practices.
11.145.
In our view, however, the USD 113 033 worth of unused refractory materials undercuts rather than supports Respondent’s case. This represents less than 3% of the total cost of Thorpe’s refractory materials (USD 113 033 - USD 3 923 371 x 100 = 2.9%). It suggests that Thorpe ordered almost exactly the right amount of refractory materials and can under no circumstances support a claim for an amount (USD 1 359 401) that is an order of magnitude larger.
11.146.
Second, Respondent contends that Claimant overcharged Respondent by at least USD 1 601 799 for fixed-price elements for 1001/1002 Piping under Amendment 2. Answer ¶ 38; RSOC ¶¶ 3, 8, 10, 136, 141, 158-159, 163, 173-175; RSOD ¶¶ 7, 103-104; RSOR ¶¶ 125-126; RPH ¶¶ 26, 31, 33; Payne 1 at 9-12 and Appendix 3 (MEI Fixed Fee Overbilling Computations); Payne 2 at 21-22; Payne 3 at 20; Wright 1 at 4-5; Wright 2 at 5-6; Ghantous 1 ¶ 57; Monthly Report, Dec. 2015, R23.08, at 18; Iowa Upstream - MEI Scope, CPM Schedule, 3 Jan. 2016, Ex. R23.09.
11.147.
Specifically, Respondent notes that, under Amendment 2, "[a]ll fixed and reimbursable costs under Article 4.1.5 shall be invoiced as progress payments in accordance with Attachment 2 of this Amendment." Amendment 2, Ex. C3, ¶ 2. Despite this, Claimant billed Respondent for 100% of the fixed-price elements under Amendment 2 - totaling USD 5 934 588 - even though Claimant did not do 100% of the work. Respondent contends that Claimant had only done 72.86% of the 1001/1002 Piping work before Respondent de-scoped the remainder. Claimant should accordingly only have billed Respondent for 73% (rounded) of the fixed elements under Amendment 2, not 100%. In light of this, Respondent considers that Claimant overcharged Respondent under Amendment 2 by at least USD 1 601 799.
11.148.
We agree in part.
11.149.
As noted above (¶ 11.19), Amendment 2 included three fixed-price elements: (1) Fixed Fee, (2) Fixed Indirect Costs and (3) Fixed Plant and Equipment Costs.
11.150.
The Fixed Fee was negotiated to cover Claimant’s corporate overhead, general and administrative costs, unbilled Project costs and profit. It is common ground between the parties’ experts that Claimant would only have been entitled to bill Respondent for 100% of the Fixed Fee under Amendment 2 (USD 2 845 578) if it completed all of the 1001/1002 Piping work. As Claimant did not complete all of the 1001/1002 Piping work, but billed Respondent 100% of the Fixed Fee nonetheless, Claimant overbilled Respondent in this regard.
11.151.
In her analysis of Claimant’s billings, Ms. Hadley considers that Claimant completed 65.87% of the 1001/1002 Piping work before Respondent de-scoped the remainder. Hadley 1 at 18; see also Payne 1 at 18 (adopting 65.87% completion in lieu of 72.86%). Claimant should thus have only billed Respondent for 65.87% of the Fixed Fee under Amendment 2, rather than the full Fixed Fee of USD 2 845 578. As a consequence, Claimant overcharged Respondent by USD 971 185. Hadley 1 at 18.
11.152.
In adjusting its claims in light of Ms. Hadley’s analysis, Claimant has already taken into account this amount and reduced its claims accordingly, so there is nothing for us to award Respondent on this score.
11.153.
Respondent contends that the same analysis should apply with respect to Fixed Indirect Costs and Fixed Plant and Equipment Costs under Amendment 2. As Claimant only completed 65.87% of the work under Amendment 2, it was only entitled to bill Respondent for 65.87% of these fixed costs, as well.
11.154.
We disagree.
11.155.
As noted above (¶ 11.19), under Amendment 2, "[a]ll fixed and reimbursable costs... shall be invoiced as progress payments in accordance with Attachment 2 of this Amendment." Amendment 2, Ex. C3, ¶ 2. What is meant by "progress payments" is unclear, and Attachment 2 does not define what it means. Respondent considers that we should read "progress payments" to link Claimant’s right to bill Respondent for Fixed Indirect Costs and Fixed Plant and Equipment Costs with Claimant’s progress in completing the 1001/1002 Piping work. Such a reading does not make practical sense, however, in light of the nature of the costs at issue.
11.156.
Indirect costs and plant and equipment costs are generally incurred with the passage of time. Indeed, we understand the parties’ experts to agree that these are time-driven costs. Hadley PowerPoint, Ex. C711, at 14-21. In light of this, we consider it appropriate to read "progress payments" to allow Claimant to bill Respondent for these fixed costs incrementally as time passes. And this appears to be what Claimant did, without drawing any objection from Respondent until these proceedings. See Tr. 7:1441:16-1442:16 (Ms. Hadley explaining the parties’ past practice in this regard).
11.157.
We also note that, with respect to the Primary and Secondary Reformer work, the Upstream Contract and Amendment 1 provide that Claimant shall bill Respondent for Fixed Indirect Costs and Fixed Plant and Equipment Costs in defined increments with the passage of time. Upstream Contract, Ex. Cl, Exhibit B; Amendment 1, Ex. C2, Attachment B. Our interpretation of "progress payments" makes the billing of Fixed Indirect Costs and Fixed Plant and Equipment Costs under Amendment 2 consistent with the way those fixed costs were billed in connection with the other work Claimant did on the Upstream Scope. Had the parties intended in Amendment 2 to create a different regime - where Claimant’s right to bill for Fixed Indirect Costs and Fixed Plant and Equipment Costs would instead be based on the percentage of 1001/1002 Piping work completed - we would have expected the parties to say so expressly.
11.158.
In its post-hearing submission (¶¶ 57-59), Respondent contends that Claimant not only overbilled it for fixed elements in connection with 1001/1002 Piping under Amendment 2, but also for fixed elements in connection with the Primary Reformer under the original terms of the Upstream Contract and the Secondary Reformer under Amendment 1. Based on an analysis by Mr. Wright, Respondent contends that the total amount of these overbillings was USD 2 408 980. Wright 1 at 4-5.
11.159.
We again disagree.
11.160.
Further to Ms. Hadley’s analysis (Hadley 1 at 18), Claimant has already adjusted its claims to take account of the fact that it did not earn 100% of the Fixed Fee under the original Upstream Contract and Amendment 1 because it did not complete 100% of the Primary Reformer and Secondary Reformer work. To the extent Respondent considers a similar adjustment should be made to Claimant’s Fixed Indirect Costs and Fixed Plant and Equipment Costs under the original Upstream Contract and Amendment 1, we reject Respondent’s claim for the reasons stated above (¶¶ 11.156-11.157). Indeed, as noted above (¶ 11.157), the payment provisions applicable to the Primary Reformer and the Secondary Reformer are expressly based on time and provide even less support for Respondent’s position than the payment provisions in Amendment 2. We also note that Mr. Wright’s analysis appears to be based on language in Claimant’s LNTP from June 2014, which was superseded by the terms of the Upstream Contract the parties signed in September 2014. Upstream Contract, Ex. Cl, Art. 17.1.
11.161.
Third, Respondent seeks USD 462 910 that it contends Claimant overcharged it for direct-labor mark-ups beginning in May 2015. Answer ¶ 39; RSOC ¶¶ 8, 10, 44(d), 136, 140; RSOD ¶¶ 7, 169(d); RSOR ¶ 127; RPH ¶¶ 26, 32, 56; Payne 1 at 12-13 and Appendix 4 (MEI Wage Rate Comparisons); Payne 2 at 19-20; Payne 3 at 21; Wright 2 at 7-8; Time & Material Rate Schedule - Orascom Reimbursable Billing Rates, 23 Apr. 2015, Ex. R23.10; Time & Material Rate Schedule - Orascom Reimbursable Billing Rates, 18 Aug. 2014, Ex. R23.11; Indirect and Direct Labor Breakdowns, 19 Nov. 2015, Ex. R23.12; letter from Respondent to Claimant, 18 Aug. 2015, Ex. R83C21 (raising "concerns over the allocation of indirect hours/perdiem for the Ammonia project to the Downstream project"); draft Meeting Minutes, 13 Aug. 2015, Ex. R83C22, at 2 (Respondent seeking clarification as to what Claimant includes in "Overhead"); email from Claimant to Respondent, 15 Jun. 2015, Ex. R83C23, at 2 (discussing the change in wage rates and whether the rates include an amount for overhead and profit).
11.162.
Under the Upstream Contract, Claimant’s own direct labor was reimbursable at rates that were negotiated and agreed between the parties. See Upstream Contract, Ex. Cl, Exhibit O. In April 2015, the parties renegotiated and updated the reimbursable rates for Claimant’s direct labor going forward (i.e., as from May 2015). Those rates were inclusive of payroll burdens, benefits, insurance and personnel related costs, but exclusive of overhead and profit. The rate sheet, however, did not break out and specify the base wage for each type of worker and the mark-up Claimant had applied to cover the other associated costs.
11.163.
Respondent contends that, in November 2015, Claimant provided a breakdown of its actual direct labor costs that showed that a 34.33% mark-up on the base wage would have been sufficient to cover the other associated costs. Respondent contends, however, that the agreed rates applied a mark-up of 39.25%. In light of this difference, Respondent contends that Claimant overstated the cost of its direct labor from May 2015 onward and overcharged Respondent a total of USD 462 910.22
11.164.
We disagree.
11.165.
As a preliminary matter, we note that the parties negotiated and agreed the direct labor rates that Claimant applied without regard to breaking out and specifying the base wage and the mark-up that would be added to cover the additional associated costs. Moreover, the mark-up Claimant applied to the base wage when the parties renegotiated the rates in April 2015 was necessarily an estimate. The actual associated costs from May 2015 forward might well turn out to be higher or lower than Claimant anticipated in its mark-up. But, as Mr. Wright acknowledged at the hearing, there is nothing in the Upstream Contract that provides that the agreed rates should be retroactively adjusted to take account of actual costs incurred. Tr. 7:1534:20-1538:4.23
11.166.
Fourth, Respondent contends that Claimant improperly charged it at least USD 2 310 233 for equipment on a cost-reimbursable basis that was included in Claimant’s fixed costs. Answer ¶ 40; RSOC ¶¶ 8, 10, 44(d), 136, 142-143, 173-175, 180-181; RSOD ¶¶ 7, 169(d); RSOR ¶ 125; RPH ¶¶ 26, 35, 78-79; Payne 1 at 13-17 and Appendix 5 (MEI/Thorpe Equipment Invoicing); Payne 2 at 20-21; Payne 3 at 21-22; Wright 1 at 5-6; Wright 2 at 8-11; email from Respondent to Claimant, 12 Dec. 2014, Ex. R23.14, at 4 (negotiating Fixed Plant and Equipment Costs); letter from Claimant to Thorpe, 7 Jul. 2014, Ex. R23.15 (Thorpe LNTP); Thorpe Budget Estimate Proposal, 28 Jul. 2014, Ex. R23.16, at 5 (pricing "Material & Freight" and "Labor & Equipment"); email exchange between Claimant and Respondent, 20 Jan. 2016, Ex. R84B, at 1 (discussing whether Claimant can pass through to Respondent equipment costs from Claimant’s subcontractors).
11.167.
Specifically, Respondent notes that the Upstream Contract originally provided for Fixed Plant and Equipment Costs in an amount of USD 216 964. As Claimant’s scope of work increased, the parties negotiated and agreed increases in the amount for Fixed Plant and Equipment Costs that ultimately totaled USD 1 779 816. Respondent contends that it understood this would cover the cost of equipment for Claimant and its subcontractors to complete Claimant’s scope of work.
11.168.
Over the course of the Project, however, Claimant invoiced Respondent 100% of the agreed USD 1 779 816 for Fixed Plant and Equipment Costs, as well as USD 314 770 for equipment used in the execution of FCN work, and also sought reimbursement of USD 2 310 233 in equipment costs from Thorpe. In other words, Claimant sought compensation - both fixed and reimbursable - for plant and equipment costs totaling USD 4.4 million to accomplish its scope of work. Respondent contends that the USD 2 310 233 Claimant invoiced Respondent for Thorpe equipment costs represents overbilling and lack of fiscal control on the part of Claimant/Thorpe.
11.169.
We disagree.
11.170.
In short, we find no support in the Upstream Contract or the evidentiary record for Respondent’s alleged belief that the USD 1 779 816 the parties negotiated for Fixed Plant and Equipment Costs would cover the cost of equipment for Claimant and its subcontractors. Under the Upstream Contract, the costs of Claimant’s subcontractors were to be handled on a cost-reimbursable basis. And they were. Claimant invoiced Respondent for Thorpe’s equipment costs on numerous occasions. While Respondent questioned some of these amounts and requested further supporting documentation, it never contended that such costs were not reimbursable as a matter of principle because they were covered by the amount for Fixed Plant and Equipment Costs. See Hadley PowerPoint, Ex. C711, at 26-30. Respondent only raised this contention after the parties’ relationship soured. And at the hearing, both Mr. Wright (Tr. 7:1523:17-1524:12, 7:1542:8-17, 7:1543:23-1544:1) and Mr. Payne (Tr. 6:1249:17-1250:4) backed away from supporting it.
11.171.
Ultimately, Mr. Wright suggested that, from an accounting perspective, he considered that Claimant had overbilled Respondent USD 420 974 as opposed to USD 2 310 233. The new figure concerns Thorpe equipment that Mr. Wright believes may have been duplicative of equipment Claimant provided. Tr. 7:1523:17-1524:12, 7:1528:23-1529:8; see also Wright 2 at 9 and 11; see also RSOR ¶ 128; RPH ¶ 79. Even with regard to this more limited position, however, we are not persuaded. Much of the Thorpe equipment at issue was only similar (not identical) to that Claimant provided and the allegedly overbilled amounts are merely estimated. See Wright PowerPoint, Ex. R119, at 19.
11.172.
We likewise find no support for Respondent’s contention that the amounts billed for Thorpe’s equipment represent a lack of fiscal control on the part of Claimant/Thorpe. By way of evidence to support this contention, Respondent points to certain radios that Thorpe rented for the project and notes that, given that the work took longer than expected, it would have been cheaper to buy the radios instead of renting them. This is nowhere near sufficient for us to conclude that Claimant/Thorpe lacked fiscal control.
11.173.
Fifth, and similarly, Respondent contends that Claimant improperly billed Respondent for USD 187 478 for small tools that were covered by the negotiated labor rates. RSOR ¶ 125; RPH ¶¶ 26, 80; Payne 3 at 18-19 and Appendix 12 (Upstream Small Tools and Consumables); Payne PowerPoint, Ex. R118, at 12.
11.174.
We disagree.
11.175.
Ms. Hadley tested the small tools billed to ensure that the billed amounts were appropriate and not included in the contract definition of small tools that were to be covered by the labor billing rates. Hadley 1 at 11; Hadley 2 at 2. Based on her review, Ms. Hadley explained at the hearing that Claimant’s small tools billings were appropriate with the possible exception of USD 584 worth of items that may have been duplicative. Tr. 7:1514:17-1516:12. In these circumstances, Respondent has failed to persuade us that its small tools claim has merit.
11.176.
Sixth, Respondent seeks USD 165 061.36 it contends Claimant overbilled it for labor and per diem. RSOD ¶ 7; RPH ¶ 26; Wright 1 at 11-12.
11.177.
We disagree.
11.178.
Respondent’s contention is based on Mr. Wright’s inability to reconcile USD 165 061.36 in labor and per diem billings against Claimant’s labor database. We note, however, that Ms. Hadley was able to reconcile Claimant’s labor and per diem billings against Claimant’s labor database, subject to certain adjustments Claimant has already taken onboard. As noted above (¶ 11.74), we find Ms. Hadley’s analysis persuasive and do not consider that any further adjustment in this regard is appropriate.24
11.179.
Seventh, Respondent contends that, further to a series of FCNs, Claimant improperly invoiced Respondent for USD 4 950 247 in Thorpe-related costs that were unreasonable, exorbitant and unjustified. Answer ¶¶ 42-43; RSOC ¶¶ 8, 10, 44(a), 136, 145, 159, 163, 173-175, 183; RSOD ¶¶ 7, 169(a); RSOR ¶¶ 5-9, 125; RPH ¶¶ 26, 34, 68-77; Payne 1 at 17-21 and Appendix 6 (Review of Thorpe Costs); Payne 2 at 20-21; Demian ¶¶ 18, 20-21; letter from Claimant to Thorpe, 7 Jul. 2014, Ex. R23.15 (Thorpe LNTP); Thorpe Budget Estimate Proposal, 3 Dec. 2014, Ex. R23.22; Subcontract Agreement between Claimant and Thorpe, 19 Aug. 2015, Ex. R23.23.
11.180.
See also W. Henry Parkman, Cost-Plus Contracting without a GMP -Contractor’s Risks, Owner’s Rights?, Nov. 2008, Ex. R86, at 2 ("If a contractor incurs unreasonable costs, the owner may seek to avoid payment"); Robert M. Wright, Cost Plus Contracts: The Construction Contractor - Is He a Fiduciary?, Apr. 2010, Ex. R88, at 26 (stating that "if a greedy contractor believes that the cost plus contract is a license to steal, he is likely to be disappointed").
11.181.
The USD 4 950 247 figure is made up of the following six items:

(1) Delay-Related Costs (USD 1 260 268)

(2) Inefficiency-Related Charges (USD 776 180)

(3) Quality-Control Items (USD 285 143)

(4) Safety-Control Items (USD 767 241)

(5) Construction Formwork Dispute (USD 1 685 771)

(6) Defective Work (USD 175 644).

Payne 1 at 19-20.25 We address each in turn below.

Delay-Related Costs

11.182.
Respondent contends that, from May through November 2015, Claimant/Thorpe invoiced it for USD 1 260 268 in delay-related costs. Respondent contends that Claimant has failed to justify these alleged costs with a delay analysis that establishes that this delay was beyond Claimant’s/Thorpe’s control. Under these circumstances, Respondent considers that it is entitled to get its money back. Payne 1 at 19; Thorpe Field Change Orders ("FCOs") 20, 24, 25, 36 and 40, 19 May through 4 Nov. 2015, Ex. R23.25.
11.183.
We disagree.
11.184.
In seeking reimbursement of costs it previously paid, Respondent relies on Article 4.5 of the Upstream Contract, which provides that "[n]o payment, final or otherwise...shall constitute a waiver of claims by [Respondent] or constitute an acceptance, in whole or in part, of any portion of the Works not in accordance with this Contract." RSOC ¶¶ 28-29, 43. But that Article does not require Claimant to prove that costs Respondent previously vetted and paid were proper. It is rather for Respondent to prove that they were not and that it is entitled to a refund under the terms of the Upstream Contract and/or applicable law. Respondent has not even attempted to do so.26

Inefficiency-Related Charges

11.185.
Respondent contends that, between January and December 2015, Claimant/Thorpe invoiced Respondent USD 776 180 in costs related to labor and equipment inefficiency. Respondent contends that Claimant/Thorpe has failed to justify these alleged costs with a labor productivity analysis establishing that these inefficiencies were not Claimant’s/Thorpe’s responsibility. In light of this, Respondent again considers it should get its money back. Payne 1 at 19; email from Thorpe to Claimant, 5 Dec. 2014, Ex. R23.24 (regarding calculations to cover "inefficiency to our direct [man hours] working during the winter months"); Thorpe Change Order Request 2 and FCOs 18, 28, 37, 39 and 41, 29 Jan. through 16 Dec, 2015, Ex. R23.26.
11.186.
We again disagree for the reasons explained above (¶ 11.184).

Quality-Control Items

11.187.
Respondent contends that, between January and August 2015, Claimant/Thorpe invoiced Respondent for USD 285 143 in costs related to additional testing requirements and labor for additional quality-control representatives and equipment to comply with quality-control plan requirements. Respondent considers that, as Claimant has failed to establish that the requirements giving rise to these costs were in excess of requirements imposed on Claimant by the Upstream Contract, it is entitled to a refund. Payne 1 at 19; Thorpe Change Order Request 3 and FCOs 19, 30 and 34, 29 Jan. through 24 Aug. 2015, Ex. R23.27.
11.188.
We again disagree for the reasons explained above (¶ 11.184).

Safety-Control Items

11.189.
Respondent contends that, between January and December 2015, Claimant/Thorpe invoiced Respondent for USD 767 241 in costs related to increased requirements for safety actions, including flagging, fire watch, rescue plans and the like. Respondent considers that these items should have been anticipated by a prudent subcontractor and therefore did not warrant additional compensation. In light of this, Respondent considers it is entitled to a refund. Payne 1 at 19; Thorpe Change Order Requests 4 through 4D, 6 and 7 and FCOs 17 and 27, 29 Jan. through 18 Dec. 2015, Ex. R23.28.
11.190.
We again disagree for the reasons explained above (¶ 11.184).

Construction Formwork Dispute

11.191.
Respondent contends that, between August and October 2015, Claimant/Thorpe invoiced Respondent for USD 1 685 771 in increased costs due to a dispute between the parties over the methodology for placing refractory for the Secondary Reformer that required ordering new, stronger formwork to allow placement of the refractory in accordance with KBR’s engineering specifications. In light of this, Thorpe incurred additional labor and equipment costs. Respondent considers that these increased costs resulted from Thorpe’s erroneous assumptions regarding methodology that were inconsistent with the engineering specifications provided to Thorpe and that no additional compensation is therefore justified. Respondent considers these monies should be refunded. Payne 1 at 19; Payne 3 at 4-6; Thorpe FCOs 32, 32A and 38, 24 Aug. through 8 Oct. 2015, Ex. R23.29.
11.192.
We disagree.
11.193.
As explained above (¶¶ 11.89-11.118), any delay associated with installing the refractory in the Secondary Reformer did not arise from a dispute between the parties regarding the methodology for placing it or Thorpe’s assumptions, but rather from Respondent’s reluctance to order the new, stronger formwork that was needed for the continuous pour above the dome.
11.194.
To the extent that Respondent contends that it should be able to get its money back because Claimant has failed to justify its alleged costs (RPH ¶¶ 74-77), we again disagree for the reasons explained above (¶ 11.184).

Defective Work

11.195.
Respondent contends that Claimant/Thorpe invoiced Respondent for USD 175 644 for repairs to the Primary Reformer flue gas ducts that Claimant previously agreed Thorpe should bear. As these are costs that Respondent has paid, Respondent contends that it should get its money back. Payne 1 at 20; email exchange between Respondent and Claimant, 19 Aug. 2015, Ex. R23.30.
11.196.
We again disagree for the reasons explained above (¶ 11.184).
11.197.
We also note that Exhibit R23.30 is a partial email chain from August 2015 where Claimant appears to tell Respondent that Thorpe will pay for some repairs to the Primary Reformer flue gas ducts. But there is nothing in the document to suggest that Claimant/Thorpe instead invoiced Respondent for these repairs, much less in the amount of USD 175 644 that Respondent seeks here.
11.198.
Eighth, Respondent brings claims for Claimant’s alleged mismanagement and defective work. Answer ¶¶ 11-12, 30-34; RSOC ¶¶ 4-8, 10, 30-40, 44(d), 49-77, 86-126, 136, 148-150, 159-161, 163, 170-175, 184-195, 200-203; RSOD ¶¶ 1-3, 5, 7, 79-83, 88-96, 105-108, 115-132, 148-149, 152-156, 169(d), 174-194; RSOR ¶¶ 1, 10-25, 60-77, 80, 87-90, 96-122, 125; RPH ¶¶ 1-12, 24-29, 82-102; Payne 1 at 24-46; Payne 2 ¶¶ 13-16; Payne 3 at 13-17, 20 and Appendix 8 (Welders - MEI Invoice - July 2015), Appendix 9 (MEI Reported Welders - Daily Reports - July 2015), Appendix 10 (Area 1001/1002 Ryan Rework Hours and Cost); Demian ¶¶9-14.
11.199.
In this regard, Respondent contends that, during its initial scope of work on the Primary Reformer, Claimant consistently reported satisfactory progress and productivity to Respondent. But when Claimant took on 1001/1002 Piping further to Amendment 2, its productivity plummeted. Respondent contends that this drop in productivity was at least in part a function of Claimant’s dedicating most of its managers to the Downstream Scope of the Project, resulting in poor planning, management and supervision on the Upstream Scope. According to Respondent, Claimant’s productivity issues are reflected in poor material control, poor scheduling and high craft labor turnover. Payne 1 at 24-29 and Appendix 7 (MEI Worker Retention 25 May to 1 June 2015); Fincher at 5-7, 10-14; Ghantous 1 ¶¶ 17-23.
11.200.
See also Ryan Copy OCI-MEI Upstream Request Log, 9 Dec. 2015, Ex. R23.43; email chain between Claimant and Respondent, 7-8 Dec. 2015, Ex. R23.44 (regarding missing materials); email from Respondent to Claimant, 20 Oct. 2015, R16C, at 2 ("As for [Claimant’s] ammonia scope, you have surpassed your subcontract completion date of end of August and weekly progress has been very slow. Immediate attention to complete this scope is required").
11.201.
Respondent claims that Claimant "was often cited for non-conforming work during routine quality control audits performed on the Project", but Respondent’s non-conformance-report ("NCR") process "could not adequately keep pace with the immense quantity of quality problems that became apparent following [Claimant’s] departure from the site, especially with the piping work". Payne 1 at 29; see also Bishai 1 ¶¶ 4, 6, 9, 11; Bishai 2 ¶¶ 13-16, 19, 22; Butcher ¶¶ 11-13; Depappa 1 ¶¶ 20, 24, 37, 50-52; Depappa 2 ¶¶ 3-6; Depappa 3 ¶¶ 21-22, 33; Ghantous 1 ¶¶ 34-54; Ghebreial ¶¶ 8-18; Shenouda 1 ¶¶ 17-30; Shenouda 2 ¶¶ 21-31.
11.202.
After that point, Respondent allegedly "documented dozens upon dozens of instances where piping sections did not meet, were misaligned, or were installed out of plumb." Payne 1 at 29; see also letter from Respondent to Claimant, 11 Feb. 2016, Ex. R23.45 (sending photographs allegedly showing that Claimant’s work on 1001/1002 Piping was defective); letter from Respondent to Claimant, 14 Mar. 2016, Ex. R23.46 (proposing a format to identify and document defects in Claimant’s work); letter from Respondent to Claimant, 22 Mar. 2016, Ex. R23.47 (promising to hold Claimant responsible for any costs incurred in repairing Claimant’s defective work); Rework Notification Log, 1 Feb. 2017, Ex. R23.48.
11.203.
According to Respondent, Claimant’s incomplete and deficient work required rework by other contractors - namely, Ryan, ParFab and United Plant Services ("UPS"). Respondent contends it paid (1) Ryan USD 2 823 751 for rework to 1001/1002 Piping, (2) ParFab USD 1 735 046 for rework to Primary Reformer piping and (3) UPS USD 544 245 for rework related to the induced draft/forced draft fans for the Primary Reformer (the "ID/FD Fans" or "Fans"). Payne 3 at 1.
11.204.
Respondent contends it is entitled to recover these amounts. Payne 1 at 29-42 and Appendix 8 (Upstream Ryan Extra Rework Tickets/Change Line Items), Appendix 9 (selected Ryan work packages), Appendix 10 (Summary of ParFab Rework) and Appendix 11 (Summary of UPS Rework).
11.205.
We disagree.
11.206.
In bringing its rework claim, Respondent relies on Articles 1, 6 and 10 of the Upstream Contract, where it says the parties agreed that Claimant would be liable for rework. RSOR ¶¶ 26-32; RPH ¶¶ 1-3, 10-12; Fincher at 4-5. Article 6 concerns Claimant’s warranties and guaranties. In Article 6.1. l(v), Claimant warrants that "all of the Work when complete and the completed Works will be free from Defects or deficiencies in workmanship and materials, will have been performed in accordance with the requirements of the Contract and in accordance with Good Industry Standards". Article 1 concerns definitions. Article 1.1 of the Upstream Contract defines "Good Industry Standards" as the "generally accepted practices, technical content and standards of care and diligence normally practiced or approved by contractors and engineers engaged in performing work similar to the Work in the United States".
11.207.
By its express terms, Article 6 concerns defects in work that is completed. It dovetails with Article 6.4, which provides for the correction of defects during the warranty period following "Final Completion of the entire Works". Upstream Contract, Ex. Cl, Arts. 6.4.1 and 6.4.3(i). It is undisputed that Claimant never finished its work on the Primary Reformer, the Secondary Reformer or 1001/1002 Piping before leaving the site. These provisions can accordingly provide no basis for the rework claims Respondent asserts here.
11.208.
Article 10 of the Upstream Contract is likewise inapplicable. That Article concerns situations where the contractor (Respondent) asks the subcontractor (Claimant) to conduct an "inspection pursuant to [Respondent’s] instructions if all or any aspect, component or part of the Work, in [Respondent’s] reasonable opinion contains any Defect" and "at its expense, correct any Defect". Id., Arts. 10.1.1(i) and 10.1.1(ii). If Claimant "fails to correct any Defect found through such inspection, [Respondent] may at its discretion either correct such Defect (including removing or replacing any relevant Work) at [Claimant’s] expense, or obtain an equitable reduction in the Contract Price." Id., Art. 10.1.1. However, there is no evidence that Respondent ever requested Claimant to perform an inspection further to Article 10 of the Contract. Respondent’s reliance on this Article is accordingly misplaced.
11.209.
Respondent has also contended that holding Claimant liable for rework would be consistent with industry practice. RPH ¶¶ 4-9; see also Fincher at 3-9; Bon-Gang Hwang et al., Measuring the Impact of Rework on Construction Cost Performance, Journal of Construction Engineering & Management, Mar. 2009, Ex. R85F, at 194, Table 8 (Rework Impact for Contractor Reported Projects by Sources of Rework). But under cost-reimbursable contracts like the Upstream Contract, the risk of rework is generally borne by the contractor (Respondent) not the subcontractor (Claimant). Such contracts are of low risk to the subcontractor and typically result in lower pricing for the contractor because the subcontractor bills for all hours worked and materials consumed, including remedial work. There is generally no basis for a contractor to refuse to pay a subcontractor - or to hold a subcontractor liable - because of defective work, rework, low productivity, or higher than estimated work costs. This is unlike work performed on a lump sum basis where the subcontractor can only bill for work installed and accepted, and the subcontractor sets the lump sum price high enough to take its increased risk into account. Liccini 1 at 7-8.
11.210.
Parties can vary this usual risk allocation under cost-reimbursable contracts by agreement. See, e.g., Construction Contract between Respondent and ParFab, 14 Mar. 2016, Ex. R22B, at 134 (providing that rework for ParFab’s non-conforming work is not reimbursable). But the parties here did not do so. On the contrary, the Upstream Contract defines "Work" as "all erection, installation [and] construction...to ensure that the Works, when constructed by [Claimant] will be in accordance with the Contract". Upstream Contract, Ex. Cl, Art. 1.1. And neither the definition of "Work" nor the definition of "Contract Price" exclude rework. Accord Tr. 3:524:18-525:1 (Mr. Harrell explaining that Claimant did not separately track hours spent on rework). Rather, under the terms of the Upstream Contract, Claimant is only liable for rework under the particular circumstances specified in Articles 6 and 10 - circumstances that do not apply here.27
11.211.
In asking us to hold Claimant liable for rework more generally, Respondent is effectively asking us to rewrite the parties’ agreement to be a lump-sum contract. Hawley ¶ 34; Tr. 5:1154:9-1157:17, 1174:10-1175:22 (Mr. Liccini explaining that Respondent’s reading of the Upstream Contract would convert it from a cost-reimbursable contract into a lump sum contract). This is something we cannot do. Kennedy, Ex. CL29, at 480. Under the Upstream Contract, we consider that Respondent has no claims (or defenses) based alleged problems with the quality of Claimant’s work, inefficiency, low productivity or higher than estimated work costs.28
11.212.
In reaching this conclusion, we note that some courts have implied terms into cost-reimbursable contracts to find that an owner is not responsible for costs resulting from work that was not performed efficiently or in a workmanlike manner. See, e.g., Frontier-Kemper Constructors, Inc. v. Elk Run Coal Co., Inc., 2008 WL 2937726 (S.D. W. Va. 2008), Ex. RL11, at *5-7; Joe Bonura, Inc. v. Hiern, 419 So.2d 25 (La. Ct. App. 1982), Ex. RL16, at 29; Metropolitan Elec. Co., Inc. v. Mel-Jac Constr. Co., 576 P.2d 323 (Okla. Civ. App. 1978), Ex. RL26, at 325; Kerner v. Gilt, 296 So. 2d 428 (La. Ct. App. 1974), Ex. RL19, at 431-432; Shaw v. Bula Cannon Shops, Inc., 205 So. 2d 916 (Miss. 1949), Ex. RL37, at 918. See also Krista Johanson, Contractors and the Law: An Estimate Is Never "Just an Estimate", 28 Feb. 2017, Ex. RL20, at 1 (contending that an owner is not required to pay a contractor for work performed to correct defective work).
11.213.
But the Iowa courts have not. And there is, in any event, no room to imply such a term here where the parties have expressly agreed the circumstances under which Claimant may be liable for rework in the Upstream Contract.29
11.214.
Iowa law does imply a warranty that a building erected will be built in a reasonably good and workmanlike manner and that it will be reasonably fit for its intended purpose. Kirk v. Ridgway, 373 N.W.2d 491 (Iowa 1985), Ex. CL30, at 493. But this implied warranty does not apply to dealings between general contractors (such as Respondent) and subcontractors (such as Claimant). It is designed to protect an "innocent, unskilled buyer". Jerry’s Homes, Inc. v. Walters, 776 N.W.2d 111 (Iowa Ct. App. 2009), Ex. CL26, at 2. Because of their sophistication, "[g]eneral contractors are not in an inferior position compared to subcontractors and do not need a judicially-created doctrine to protect them." Id.
11.215.
The Iowa Court of Appeals has likewise found that contractors may be held liable for rework in cases that concerned small amounts of work done for individuals - again, unsophisticated parties - further to oral or partly oral contracts. See, e.g., Halstead v. Langel, 859 N.W.2d 671 (Iowa Ct. App. 2014), Ex. CL16, at 5 (finding in the case of a partly oral contract for facade repair that the owners could offset their damages for defective work against amounts they owed to the contractor); Williams v. Hair Stadium, Inc., 334 N.W.2d 354 (Iowa Ct. App. 1983), Ex. CL41, at 356 (finding in the case of an oral contract for brickwork that the contractor could recover only after a deduction was made for the owner’s damages for defective work). These cases do not address situations (such as this) where two sophisticated parties specify the terms of their relationship in a comprehensive, written agreement, and Respondent rightly did not attempt to rely on them.
11.216.
Having found that there is no legal basis for Respondent’s rework claims, we could leave it there. We note, however, that Respondent was no more persuasive on the facts. As the parties have briefed the evidentiary issues extensively, we make the following observations.
11.217.
There is little contemporaneous documentary evidence to support the idea that Claimant did poor quality work on the Upstream Scope. See Observation/Deviation Report 0-342, 6 Dec. 2015, Ex. R67BB (regarding needed rework to arch burner piping); email from Respondent to Claimant, 10 Dec. 2015, R78F (noting nonconformity with respect to arch burner piping and asking Claimant to prepare a survey proving that the defects are not due to Claimant’s workmanship); letter from Respondent to Claimant, 11 Dec. 2015, Ex. R17Z (same).
11.218.
Rather, almost all of the documentary evidence Respondent puts forward in support of its rework claims is evidence that Respondent generated after the parties’ relationship had soured and Claimant was leaving (or had left) the site. See, e.g., letter from Respondent to Claimant, 11 Feb. 2016, Ex. R17EE (considering Claimant responsible for defects in arch burner piping); letter from Ryan to Respondent, 22 Feb. 2016, Ex. R23.49 (describing "serious problems with the quality of piping installed within the Ammonia 1001 & 1002 Reformer area"); letter from Respondent to Claimant, 10 Mar. 2016, Ex. R23.50 (recapping events during Claimant’s site visit on 2 and 3 March 2015). We consider such evidence of little weight.
11.219.
Respondent attempted to suggest that there is, in fact, lots of contemporaneous evidence by submitting as Exhibits R73.1 through R73.203 hundreds of pages of "notifications" from Respondent to Claimant during the course of the Project. Depappa 2 ¶ 6; Depappa 3 ¶¶ 12-14. However, a review of these documents only confirms the dearth of criticism of the quality of Claimant’s work prior to the parties’ falling out. Before then, Respondent’s concerns related to Claimant’s progress and productivity, particularly with respect to 1001/1002 Piping, not the quality of Claimant’s work. See, e.g., letter from Respondent to Claimant, 10 Aug. 2015, Ex. R73.15 (raising concerns about the delays to 1001/1002 Piping and demanding a mitigation plan); letter from Respondent to Claimant, 22 Sept. 2015, Ex. R73.32 (raising concerns regarding cost overruns and progress and demanding a recovery plan); text message from Claimant to Respondent, 18 Oct. 2015, Ex. R66E (regarding Claimant’s effort to address Respondent’s concerns related to progress and productivity); emails from Respondent to Claimant, 18 Dec. 2015, Ex. R66G (regarding Claimant’s progress and productivity on the Upstream Scope).
11.220.
See also Tr. 2:197:22-198:1 (Mr. Butcher testifying that, during Claimant’s time on the Project, "[w]e didn’t specifically talk so much about the quality of the welding because the quality of the welders was good. The productivity and the progress is what was lacking"); Tr. 2:415:22-418:22 (Mr. Hawley testifying that only about 3% to 5% of Claimant’s work in the fall of 2015 was rework, and less than 2% of that rework was Claimant fixing its own errors).
11.221.
Moreover, much of the evidence Respondent puts forward for its rework claims is testimonial and hyperbolic. For example, Mr. Conklin testified as follows regarding what Ryan allegedly found when it took over 1001/1002 Piping from Claimant:

We were shocked at the poor quality of workmanship and insufficient welds that [Claimant] had performed, which were severely deficient. It was jaw-dropping how poor the work was - I’ve never seen anything this bad. in terms of overall defective work and failure to comply with industry standards in my 21 years in the industry. At no time in my career have I ever seen such poor management and lack of craftsmanship. Well in excess of 80% of the installed piping was out of plumb, level or square.

* * *

[Claimant’s] defective work was wide ranging, and some of the worst that I have ever seen.

* * *

It was discovered through the course of our audit that the scale of piping installed incorrectly was enormous. Easily over 80% of all lines had some sort of problem with the installation... The amount of incomplete and incorrect installation of piping is something I have never seen in over 21 years working in the construction industry.

* * *

The amount of welds that needed to be repaired for one reason or another numbered well into the hundreds.

* * *

[R]ampant defective and incomplete work performed by [Claimant] in the 1001-1002 piping area...plagued the Project.

Conklin 1 ¶¶ 23, 26, 28, 37, 41; see also id. ¶ 19; Conklin 2 ¶ 37; Conklin 3 ¶¶ 3-39; Demian ¶¶ 9-14; Fincher at 15.

11.222.
We do not believe that such dramatic deficiencies in Claimant’s work, if they existed, could have gone undocumented during Claimant’s time on site. Claimant’s and Respondent’s QA/QC people worked closely together and walked the site every day, sometimes twice a day. Clark ¶ 27; Depappa 1 ¶¶ 18-23; Tr. 4:823:16-824:4 (Mr. Clark explaining the close, daily collaboration between Claimant’s and Respondent’s QA/QC people). And the parties met each week to document, among other things, the work performed during the subject week and QA/QC issues. J. Campesi 1 ¶¶ 24-26.
11.223.
Claimant also provided Respondent detailed Monthly Reports. Id. ¶¶ 27-30. Respondent reviewed these closely. See, e.g., letter from Respondent to Claimant, 15 Jul. 2015, Ex. R17J, at 1-5 (commenting on Claimant’s Monthly Report for May 2015); letter from Respondent to Claimant, 9 Aug. 2015, Ex. R17J, at 6-31 (commenting on Claimant’s Monthly Report for June 2015); letter from Respondent to Claimant, 4 Sept. 2015, Ex. R17J, at 32-59 (commenting on Claimant’s Monthly Report for July 2015); letter from Respondent to Claimant, 22 Sept. 2015, Ex. R17J, at 60-62 (expressing concerning about cost overruns following Claimant’s Monthly Report for August 2015); see also Shenouda 1 ¶¶ 8-13. Despite this, we know of no contemporaneous documentary evidence suggesting any material problem with the quality of Claimant’s 1001/1002 Piping work, much less the kind of dramatic problems Mr. Conklin describes.
11.224.
There are documents in the record that suggest that Claimant initially had some difficulty getting its QA/QC processes in place when it began work on the Primary Reformer back in 2014. See NCR T-0112, 13 Aug. 2014, Ex. R19E (noting that Claimant had not yet done high strength bolt pre-installation verification); NCR T-0113, 14 Aug. 2014, Ex. R19F (noting that welding work cannot proceed because Claimant has not yet submitted a welding Inspection and Test Plan ("ITP")); mark-up of Claimant’s QA/QC ITP for the Primary Reformer (Rev. 1), 3 Sept. 2014, Ex. R19D; email from Respondent to Claimant, 18 Aug. 2014, Ex. R19G (directing Claimant to "take immediate action on the performance of [its] site self perform Quality Control oversight, and Quality Assurance sub-contract management") (emphasis original); transmittal from Claimant to Respondent, 22 Dec. 2014, Ex. R67AA (seeking review and approval of Claimant’s QA/QC ITP for the Primary Reformer (Rev. 5)); see also Depappa 1 ¶¶ 25-36; Depappa 3 ¶¶ 3-6. But these issues do not appear in any way connected to the Ryan, ParFab and UPS rework claims at issue in this case.30
11.225.
Mr. Conklin also criticized Claimant’s work from a health and safety standpoint. For example, Mr. Conklin testified that Claimant had used temporary piping supports in a way that "create[d] a very unsafe and possibly life-threatening condition". Conklin 1 ¶ 30; see also id. ¶ 33 ("Temporary supports...create a very real safety hazard"); id. ¶ 35 (Claimant "knew full well the dangers and safety hazards associated with such reckless use of temporary supports"); Conklin 2 ¶ 36 ("At Ryan, if I ever caught my employees so carelessly installing temporary supports, I would have fired them on the spot" because "[t]here is never an excuse to put production in front of safety and at no time would I ever allow this to knowingly occur"). According to Mr. Conklin, this was "indicative of [Claimant’s] overall lack of safety concerns in the performance of its work at the Project." Conklin 1 ¶ 30; see also RSOD ¶ 78.
11.226.
This testimony sits awkwardly with the undisputed fact that Claimant’s safety record on the Project was second to none. Hawley ¶ 28; Clark ¶ 22; Liccini 1 at 9 (noting that Claimant’s "safety performance on the Upstream Project was outstanding by any measure").
11.227.
Respondent submitted work packages from Ryan that Mr. Conklin testified documented the rework Ryan did to correct all of the defective work Claimant allegedly left behind. Ryan Work Packages 1 through 458, Exs. R80B1 through R80B458; see also CLIs and photographs of Ryan’s alleged rework, Ex. R69N.
11.228.
Mr. Conklin provided varying degrees of explanation with respect to these work packages. See Conklin 1 ¶¶ 41-47; Conklin 3 ¶¶ 6-35; spreadsheet for Ryan work packages, Ex. R80A. But even in instances where he provided detailed explanation, we were not persuaded that the documents in the work packages necessarily concerned rework to correct defects in Claimant’s work, as opposed to rework for other reasons or simply work Ryan did to finish 1001/1002 Piping that was incomplete at the time Respondent removed it from Claimant’s scope.31See Tr. 3:634:22-682:10 (Mr. Joseph Campesi explaining why the Ryan work packages that appear as Exhibits R80B1, R80B2, R80B11, R80B17, R80B232 and R80B235 do not necessarily reflect rework to Claimant’s defective work).
11.229.
The evidence from Mr. Richard of ParFab was similarly unpersuasive. Richard 1 ¶¶ 10-39; Richard 2 ¶¶ 3-13; Richard 3 ¶¶ 3-38; KBR 90% Site Report Inspection (Rev. 1), 2 Jun. 2016, Ex. R22W, at 5 (noting needed rework related to water damage to refractory).
11.230.
Mr. Richard also testified that Claimant’s work was "some of the very worst [he has] ever seen." Richard 1 ¶ 27. And he also submitted work packages that allegedly documented ParFab’s rework of Claimant’s defective work. ParFab Work Packages 1 through 249, Exs. R72C1 through R72C249; see also End of Shift Report, Ex. R22V (listing rework ParFab allegedly did between 25 February and 30 June 2016); spreadsheet for ParFab work packages, Ex. R81A. Each work package was supposed to document some particular aspect of the rework ParFab did. But in reviewing these work packages, we noticed that many contained the same documents over and over and over again. See also Tr. 6:1332:3-24 (Mr. D’Onofrio noting the duplication in the documentary support for ParFab’s alleged rework). We found this troubling. When pressed for an explanation at the hearing, Mr. Payne was unable to provide any sufficient to assuage our concerns. Tr. 6:1271:21-1275:20, 6:1309:3-11; see also RPH ¶¶ 98-100.
11.231.
We likewise find no evidence sufficient to support Respondent’s claim for the rework UPS allegedly did in connection with the ID/FD Fans. See Demian ¶ 15; letter from Respondent to Claimant, 18 Nov. 2015, Ex. R23.56 (regarding remedial work with respect to the ID/FD Fans); UPS Daily Time Sheet, 24 May 2016, Ex. R23.58.
11.232.
The ID/FD Fans are huge fans. They sit on a foundation. It requires a crane to place them there. Tr. 4:783:1-5 (Mr. Clark explaining how the Fans are placed). Before the Fans are placed, the foundation bed needs to be prepared for grout. This preparation is done by chipping and scraping the foundation. Tr. 2:283:3-18 (Mr. Demian explaining the preparation process). This should necessarily be done before the Fans are placed because it is not possible to access the foundation bed once the Fans are sitting on it.
11.233.
It was not Claimant’s responsibility to prepare the foundations for grout. Weitz did this. Aiken ¶ 45; Tr. 4:806:19-807:5, 4:813:4-22, 4:855:7-15 (Mr. Clark explaining that Weitz prepared the foundations for the Fans); email from Weitz to Respondent, 4 Nov. 2015, Ex. C443 (discussing the substrate prep work that had been done). Once this was done, Claimant set the ID/FD Fans in the fall of 2014. Tr. 2:264:24-265:2 (Mr. Demian confirming the time Claimant set the fans). Respondent was aware of this, but at the time never suggested that Claimant had done this work prematurely. Monthly Report, Sept. 2014, Ex. C63, at 8; Monthly Report, Oct. 2014, Ex. C423, at 9-10; Monthly Report, Nov. 2014, Ex. C65, at 11, 14; Monthly Report, Dec. 2014, Ex. C66, at 12 and 14; Tr. 4:816:12-817:15 (Mr. Clark testifying that Respondent was aware of Claimant’s work setting the Fans and did not raise any concern that the foundation had not been prepared).
11.234.
Months later, in November 2015, Respondent decided that the foundation had not been adequately prepared for the type of grout it wanted to use. Compare email from Respondent to Claimant, 1 May 2015, Ex. C428 (noting that cementitious ("not epoxy") grout should be used) with email from Weitz to Respondent, 4 Nov. 2015, Ex. C443 (noting that the "FD Fan base will require epoxy grout and the substrate prep work is good enough for cementitious grout at best"); letter from Respondent to Claimant, 18 Nov. 2015, Ex. R23.56, at 1 (noting that the foundation for the Fans "is generally not an acceptable surface preparation to proceed with grouting"); Tr. 4:813:4-22 (Mr. Clark explaining that Weitz prepared the foundations for cementitious grout and that a different type of surface preparation was needed for epoxy grout).
11.235.
Four months later, in March 2016, after Claimant left the site, Respondent issued NCRs contending that Claimant had failed to verify the preparation of the foundation before setting the Fans and engaged UPS to remove the Fans, re-prepare the foundations and then re-set the Fans. NCR T-0256, 7 Mar. 2016, Ex. R82G; NCR T-0257, 7 Mar. 2016, Ex. R82H.
11.236.
In these circumstances, we fail to see any factual basis to consider Claimant responsible for UPS’s rework. And until the parties had fallen out, neither did Respondent.
11.237.
Ninth, Respondent contends that Claimant owes it USD 1 335 235 Respondent allegedly paid NQS to recreate QC documentation that Claimant refused to turnover when it demobilized from the site. Answer ¶ 35; RSOC ¶¶ 5, 8, 10, 44(d), 78-85, 90, 109, 136, 151, 163, 173-175, 196-199; RSOD ¶¶ 7, 148, 169(d); RSOR ¶¶ 123-124; RPH ¶¶ 18, 26, 46-54, 103; Payne 1 at 42-44; Bishai 2 ¶ 20; Conklin 1 ¶ 20; Depappa 1 ¶¶ 15, 55-69; Depappa 3 ¶¶ 25-32; Ghantous 1 ¶¶ 24-27, 30-31, 55-56; Ghantous 2 ¶¶ 38-39; Richard 1 ¶¶ 9, 15-16; Shenouda 1 ¶¶ 24, 31-38; letter from Respondent to Claimant, 31 Dec. 2015, Ex. Cl6, at 2 (requesting Claimant’s QC documentation); letter from Respondent to Claimant, 2 Feb. 2016, Ex. R19N, at 2 (stating that Respondent "will not be in a position to disburse the Final Payment in respect to the balance of the Contract Price until submission of the...Turnover QC Documents"); letter from Respondent to Claimant, 11 Feb. 2016, Ex. R23.60 (giving Claimant notice that it was in material breach of the Upstream Contract for failing to turn over its QC documentation).
11.238.
We disagree.
11.239.
Articles 10.4 and 10.6 of the Upstream Contract required Claimant to maintain QC documentation and turn that documentation over to Respondent when Claimant left the site. Upstream Contract, Ex. Cl, Art. 10.4 (requiring Claimant to "maintain records and reports of the Work sufficient to verify [Claimant’s] performance") and Art. 10.6 (requiring Claimant to "deliver a full and complete set of Drawings and Technical Documentation... as exist at the time of termination or cancellation").
11.240.
Claimant refused to do so. Letter from Claimant to Respondent, 30 Jan. 2016, Ex. Cl48, at 2 (stating that Claimant "will provide all turnover documents upon final payment"). Claimant considers that its obligation to turn over its QC documentation was suspended under Article 14.3 of the Upstream Contract in light of Respondent’s failure to pay Claimant outstanding amounts due. Reply ¶ 35; CSOD ¶¶ 85(b), 151, 197-198; CPH ¶¶ 26-33. Article 14.3 concerns events of default by the contractor (Respondent) and defines an "Event of Default" to include the contractor’s failure to pay the subcontractor (Claimant) amounts due. Upstream Contract, Ex. Cl, Art. 14.3.l(i). When Respondent failed to pay Claimant amounts due further to Payment Application 18, Claimant gave Respondent "notice of such default". Id., Art. 14.3.2; letter from Claimant to Respondent, 1 Feb. 2016, Ex. C236. And when Respondent did not cure its default within 30 days, Claimant "suspend[ed] performance of its obligations". Upstream Contract, Ex. Cl, Art. 14.3.2(i); letter from Claimant to Respondent, 4 Mar. 2016, Ex. C24.
11.241.
Respondent resists this conclusion on the grounds that Article 15.7 of the Contract provides that, "[p]ending final resolution of any Dispute" -including payment disputes - the parties "shall continue to fulfill their respective obligations". We appreciate that there is a conflict between the terms of Article 14.3 and Article 15.7. By its terms, Article 14.3 allows Claimant to suspend performance, while Article 15.7 requires Claimant to continue to perform. In the face of this conflict, we consider it appropriate to find that Article 14.3 trumps Article 15.7. To find otherwise would, for all practical purposes, read Article 14.3 out of the Contract and deprive Claimant of the protections it was designed to provide. This is reason enough to deny Respondent’s claim.
11.242.
We also note that, in support of its claim, Respondent has submitted ten NQS invoices that were issued between 27 April and 12 July 2016 and their related time sheets as Exhibit R67SS.4. They cover work done from the end of February through the end of June 2016 and make reference to "Reformer Rework". But they provide no detail as to the work NQS performed, and Respondent has not submitted a witness statement from anyone at NQS to support its claim. We also doubt that it would have taken NQS four months to recreate Claimant’s QC documentation. And we understand that Claimant eventually turned over the documentation it was withholding sometime in late March/early April 2016 in exchange for Respondent’s paying Payment Application 18. Harrell ¶ 45; letter from Claimant to Respondent, 31 Mar. 2016, Ex. C27, at 1. Under these circumstances, we also consider that Respondent has failed to prove up its damages.
11.243.
Tenth, Respondent contends that it is entitled to USD 1 114 242 it allegedly incurred in additional overhead and management costs to administer and oversee the rework done by Ryan, ParFab and UPS, as well as the work NQS did to create Claimant’s QC documentation. RSOC ¶¶ 8, 10, 136, 152, 163, 173-175; RSOD ¶¶ 7, 197; RPH ¶¶ 104-107; Wright 1 at 24-26 and Schedule 2 (OEC General Conditions Cost Rate Calculation) and Schedule 2.1 (OEC General Conditions Costs by Category); Wright PowerPoint, Ex. R119, at 21; see also Payne 1 at 44-46; OEC Indirect Cost Summary, Mar. through Oct. 2016, Ex. R23.63.
11.244.
We disagree.
11.245.
For the reasons explained above (¶¶ 11.205-11.242), we have already rejected Respondent’s claims for alleged rework costs associated with Ryan, ParFab and UPS, well as for the work NQS did to create Claimant’s QC documentation. Respondent’s claim for additional overhead and management costs to administer and oversee that alleged rework accordingly fails as well.
11.246.
Eleventh, Respondent contends that Claimant owes it USD 572 309 in insurance premiums it paid on Claimant’s behalf. RSOD ¶ 7; RPH ¶¶ 108-111; Wright 1 at 10-11; email from Lockton to Respondent, 2 Jun. 2017, Ex. R71F.
11.247.
We disagree.
11.248.
We note that Respondent never sought payment for this amount before these proceedings and we are unaware of any contemporaneous documentary evidence to support the claim. The claim is made on the basis of post-dispute correspondence between Respondent and its insurance broker in June 2017 - correspondence that nowhere mentions the specific amount Respondent seeks here - and the opinion of Mr. Wright. As such, we consider the evidence for the claim insufficient.
11.249.
Moreover, we are concerned that this claim seeks amounts that (at least in part) relate to the Downstream Scope of the Project. When we asked Mr. Wright about this, he said that he had raised the same question and that someone at Respondent had told him that the insurance costs at issue relate solely to the Upstream Scope. Tr. 7:1527:15-1528:10, 7:1549:9-1551:4. This strikes us as counterintuitive. We are aware of no reason that any insurance coverage would have covered Claimant only for its work on the Upstream Scope, as opposed to its work on the Project as a whole. And in its post-hearing submissions (¶ 109), Respondent appears to concede that this claim does in part seek amounts related to the Downstream Scope, which is outside the scope of this arbitration.

F. Interest

11.250.
Further to Article 4.4 of the Upstream Contract, both parties seek interest on any amounts awarded to them at the Wall Street Journal Prime Rate plus 1%. That Article provides that "[a]ny late payments by either Party, including any payments wrongfully withheld, shall bear interest from the date payment is due at a rate per annum of Prime Rate plus 1%." Article 1.1 of the Upstream Contract defines the "Prime Rate" as the "Prime Rate published from time to time in The Wall Street Journal in its general guide to money rates as the base rate on corporate loans from large United States money center commercial banks (or if said Prime Rate is reported as a range of rates, the highest of such rates)."
11.251.
Under Article 4.3.3(iv) of the Upstream Contract, Respondent was to pay invoices within thirty days after receipt. Claimant contends that Respondent was due to pay amounts owed further to (A) Payment Application 19 by 2 March 2016, (B) Payment Application 20 by 31 March 2016 and (C) Payment Application 21 by 1 May 2016. CPH ¶¶ 77-80. Claimant accordingly seeks interest from these dates until payment is made.
11.252.
There are several problems with this.
11.253.
Perhaps most obviously, Claimant never invoiced Respondent for amounts allegedly due further to Payment Application 21. As a consequence, the time to pay any amounts awarded in connection with Payment Application 21 cannot have started to run under Article 4.3.3(iv). In addition, it is not possible to say what portion of the USD 7 340 596 we award to Claimant relates to each Payment Application. This is because Claimant has made adjustments to the global amount of its claims under Payment Applications 19, 20 and 21 to take account of unsubstantiated amounts Respondent paid further to Payment Applications 1 through 18. See supra ¶¶ 11.59-11.63. And now so have we by virtue of our findings in this award. See supra ¶ 11.72. And some of the amount we have awarded to Claimant consists of retainage, which (by definition) was not due to be paid at the same time Respondent was to pay Claimant’s invoices.
11.254.
In these circumstances, we consider it appropriate to award Claimant interest from the date of the filing of its Request (8 July 2016) until payment is made. It cannot be gainsaid that all of the amounts we award to Claimant here were due and wrongfully withheld at least as from that date. Upstream Contract, Ex. Cl, Art. 4.4.
11.255.
For its part, Respondent seeks interest from the date it filed its claims in these proceedings (6 September 2016). RPH ¶ 113. As we have made no award to Respondent, its claim for interest is moot.

G. Set Off

11.256.
Both parties confirmed at the hearing that we should set off any amounts awarded to one against any amounts awarded to the other. Tr. 7:1562:13-1563:5; 7:1567:14-24. As we have not awarded any amounts to Respondent, the request for set-off is moot.

H. Costs

11.257.
Pursuant to Article 37(1) of the Rules, the costs of the arbitration shall include the fees and expenses of the arbitrators and the ICC administrative expenses fixed by the Court, as well as the fees and expenses of any experts appointed by the tribunal and the reasonable legal and other costs incurred by the parties for the arbitration.
11.258.
Pursuant to Article 37(4) of the Rules, the final award shall fix the costs of the arbitration and decide which of the parties shall bear them or in what proportion they shall be borne by the parties.
11.259.
In making our decision on costs, we may take into account such circumstances as we consider relevant, including the extent to which each party has conducted the arbitration in an expeditious and cost-effective manner. Rules, Art. 37(5).
11.260.
At its session of 14 December 2017, the Court fixed the costs of arbitration at USD 660 000. These costs are covered by the advance on costs of USD 660 000, which the parties paid in equal shares (i.e., USD 330 000 each).
11.261.
Claimant has incurred party costs of USD 1 922 715. CPH ¶ 81.
11.262.
Respondent has incurred party costs of USD 2 578 786 (rounded). RPH, Appendix 1.
11.263.
We consider the parties’ costs reasonable in light of the complexity of this case and neither party has contended otherwise.
11.264.
We note that the bulk of the work in this case concerned Respondent’s claims, most of which we denied. By contrast, Claimant won the bulk of its claims, which were relatively straightforward. In these circumstances, we consider that Respondent should bear the costs of arbitration fixed by the Court, as well as all of the parties’ costs.

12. AWARD

12.1.
For the reasons set forth above, the tribunal makes the following award:
12.2.
Respondent is ordered to pay Claimant USD 7 340 596 with interest at the Wall Street Journal Prime Rate plus 1% from 8 July 2016 until payment is made.
12.3.
Respondent shall bear its own party costs and is ordered to pay Claimant USD 1 922 715 in party costs.
12.4.
The Court has fixed the costs of arbitration at USD 660 000, all of which shall be borne by Respondent.
12.5.
Respondent is ordered to pay Claimant USD 330 000 in arbitration costs.
12.6.
All other claims are dismissed.
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