Judges: Younger
Filed: Sep. 01, 2017
Latest Update: Mar. 03, 2020
Summary: The contract contained a Performance Work Statement. The contracting officer did not render a decision on the claim (J.S. London asserts that the, overarching issue is whether the addition [of these three buildings] resulted in an, increased window square footage area for EC London to clean (id.
ARMED SERVICES BOARD OF CONTRACT APPEALS
Appeal of -- )
)
E.C. London & Associates, Inc. ) ASBCA No. 60273
)
Under Contract No. FA2816-05-D-OOO 1 )
APPEARANCE FOR THE APPELLANT: Theodore P. Watson, Esq.
Watson & Associates, LLC
Aurora, CO
APPEARANCES FOR THE GOVERNMENT: Jeffrey P. Hildebrant, Esq.
Air Force Deputy Chief Trial Attorney
Lawrence M. Anderson, Esq.
Trial Attorney
OPINION BY ADMINISTRATIVE JUDGE YOUNGER
In this deemed denied appeal, appellant E.C. London & Associates, Inc. (London
or appellant) seeks payment for alleged extra-contractual work on a contract for window
cleaning and base custodial services. Both parties have elected to submit their cases on
the record under our Rule 11. Both entitlement and quantum are before us. We sustain
the appeal in part and deny it in part.
FINDINGS OF FACT
A. The Contract
1. By date of 28 December 2004, the Air Force awarded appellant Contract
No. FA28l6-05-D-OOO1 (the contract) to appellant for window cleaning and general base
custodial services at the Los Angeles Air Force Base (R4, tab 1; Joint Stipulation of Facts
(J.S. ii 16)). The contract was a firm-fixed-price, indefinite-quantity contract, which
included one base period (January 2005 to September 2005), and four option periods,
each one year in length (J.S. ii 18). The Air Force subsequently exercised all four option
periods, and the last one continued through September 2009 (J.S. iii! 18-19, 53-54).
2. The contract incorporated numerous standard clauses by reference, including FAR
52.232-25, PROMPT PAYMENT (FEB 2002); FAR 52.233-1, DISPUTES (JUL 2002); and FAR
52.243-1, CHANGES-FIXED-PRICE (AUG 1987), ALTERNATE II (APR 1984) (R4, tab 1 at 58).
3. The contract contemplated that the square footage of window surfaces to be
cleaned might vary when older buildings were tom down and replacement buildings
constructed. Thus, the contract's Schedule contained Section B.4, Estimated Window
Cleaning and Base Carpet and Rug Cleaning and Shampooing Square Footage. Section
B.4 listed the contract line item numbers (CLINs) in the contract by base period and
option periods, by period of performance for each, and by average semi-annual square
footage. It provided in part:
The square footage indicated in CLINs 0004 [Base Exterior
Window Cleaning Services] and.0005, and respective options
CLINs if exercised, is an estimated number of square feet
based on cleaning all windows .. .in the buildings.... The
average semi-annual square footage takes into account that
old facilities and new facilities are of different size.
Therefore, the actual quantity of square feet to be ordered for
cleaning in any 6-month period may be higher or lower than
the average semi-annual square footage. Task order will
indicate how many square feet are ordered for cleaning each
semi-annual period.
(R4, tab 1 at 3-4)
4. The contract divided the window cleaning services into those to be performed on
the interior of designated buildings, and those to be performed on the exterior (J .S. ~~ 21, 23 ).
5. By Amendment No. 03 dated 30 September 2006, the Air Force added three
buildings, designated as Buildings 270, 271 and 272 to the contract (R4, tab 2 at 1-2;
J.S. ~ 40). No contract amendment or modification addressed the glass square footage of
Buildings 270, 271, or 272 (J.S. ~ 41).
B. Interior Window Cleaning
6. The contract contained a Performance Work Statement. In paragraph 2.3.2,
Clean Interior Windows, it provided: "Clean glass surfaces that are over seven (7) feet
high. After surfaces have been cleaned, all traces of film, dirt, smudges, water and other
foreign matter shall be removed from frames, casings, sills, and glass." (R4, tab 4 at 8,
tab 37 at 8)
7. CLIN 0003 "Base Custodial Services - [Los Angeles Air Force Base] and Ft
Mac" provided that "[t]he Contractor shall accomplish the work set forth in the
Performance Work Statement for Base Custodial Services, except [certain paragraphs]
for all buildings located at LAAFB and Fort Mac Arthur, except the Medical Clinics in
Buildings 30 and 210" (J.S. ~ 22).
8. Paragraphs 2.1.9 and 2.1.10 of the Performance Work Statement contained
provisions regarding general cleaning and dusting, as follows:
2
2.1.9. General Cleaning (Doors and Walls).
Perform cleaning on doors and walls (including stairwells)
up to seven (7) feet on a daily basis. General cleaning
includes, but is not limited to removing, or cleaning smudges,
fingerprints, marks, streaks, spills, etc., from washable
surfaces of all walls, doors, door guards, door handles, push
bars, kick plates, light switches, temperature controls, and
fixtures. After general cleaning, the surface shall have a
clean, uniform appearance, free of streaks, spots, and other
evidence of soil.
2.1.10. Dusting.
The Contractor shall dust all horizontal surfaces to include
but not limited to pipes, ledges, railings, window sills,
window coverings, light fixtures, TV's and TV apparatus,' air
ducting, ceiling fans, and vents so that after dusting they are
free of all visible dust, lint, litter and dry spoil, at a frequency
of not less than once a week. Dusting consists of Low
Dusting (<7') which shall be done not less than weekly, and
High Dusting (>7' but <15') which shall be not less than
monthly.
(R4, tab 41 at 7-8)
C. Exterior Window Cleaning
9. Performance Work Statement paragraph 2.3.3, Clean Exterior Windows,
provided: "Windows are the glass surfaces that are an integral part of the outer wall of
the building" (R4, tab 4 at 8).
10. The relevant CLIN for exterior window cleaning is CLIN 0004 Base Exterior
Window Cleaning Services and its corresponding option year CLIN, viz., CLINs 0104,
0204, 0304, and 0404 (R4, tab 1 at 9, 16, 23, 30, 37; J.S. ~ 25).
11. CLIN 0004 and its corresponding option year CLINs required appellant to
perform exterior window cleaning services "semi-annually at six-month intervals as set
forth in task orders" (R4, tab 1 at 9, 16, 23, 30, 37; J.S. ~ 26). It is undisputed that
London was to be paid $0.312 per square foot for CLINs 0004, 0104, 0204, 0304, and
0404 (J.S. ~ 27).
12 In paragraph B.3, Estimated Average Monthly Square Footage, the contract
contained an average monthly square footage estimate of cleaning for CLIN 0004 of
3
79,725 SF, and 87,450 SF each for the corresponding option year CLINs 0104, 0204,
0304 and 0404 (R4, tab 1 at 3-4 ).
D. Performance and Claim
13. One area where the contract was to be performed was designated by the
parties as Area A. It originally included seven buildings denominated as Buildings 100,
105, 110, 115, 120, 125, and 126. The original Area A buildings were torn down during
performance and replaced by three new buildings, designated as Buildings 270, 271, and
272. (J.S. ~~ 33-34)
14. By memorandum dated 17 January 2006, SSgt William Rupert, the
Noncommissioned Officer in Charge for Work Order Projects, advised the office of the
contract specialist that "[t]he estimated square footage of surface area [for the windows at
Building 272] is 86,112" (R4, tab 49).
15. By date of 23 March 2006, in response to an inquiry from London, SS gt Rupert
advised an Air Force contract specialist that the interior and exterior window square footage
for the three newer buildings was as follows:
(a) Building 270: 96,445 square feet;
(b) Building 271: 94, 723 square feet;
(c) Building 272: 86,112 square feet.
Thus computed, the total for all three buildings aggregates 277,280 square feet. (R4, tab 13
at 11; J.S. ~ 37) SSgt Rupert noted that the contract "needs to be [modified] to reflect new
numbers because the CLIN only covers exterior side of the windows" (R4, tab 13 at 11).
16. We find nothing in the record explaining how SSgt Rupert arrived at his
figures. The record contains no affidavit or declaration from SSgt Rupert himself
explaining his methodology, and his calculations cannot be explained or verified by
reference to other documents in the record.
17. Neither party is aware of any other window square footage measurements that
were made, nor of any other window square footage estimates made, during contract
performance, regarding Buildings 270, 271, or 272 (J.S. ~ 38).
18. By email to appellant dated 23 March 2006, a contract specialist for the Air
Force advised London that she had asked SSgt Rupert "to put together a formal
modification package to revise the window cleaning portion of the contract that will
include, drawings, measurements, etc. Once received, I'll pass the revision on to you."
(R4, tab 13 at 10)
4
19. The parties met regarding outstanding issues on 5 January 2007. Among the
issues they addressed were that the contract "provides the total square footage for exterior
window cleaning, but does not detail square footage by building or area." The Air Force
undertook that a member of the Engineering and Logistics Squadron on base "will
provide the Square Footage for exterior window cleaning by Friday, 12 January 2007."
(R4, tab 50 at 1) The Air Force made the same undertaking following a meeting on
20 February 2007 (R4, tab 51 ).
20. By date of 17 September 2007, the Air Force revised the Performance Work
Statement for the contract (R4, tab 4 ). With respect to interior window surfaces,
section 2.3.2 of the revised Performance Work statement retained the same requirement
as the original, viz., "Clean glass surfaces that are over seven (7) feet high" (J.S. ~ 52).
E. Claim and Appeal
21. By date of 16 August 2010, appellant submitted its certified claim to the
contracting officer, seeking a total amount of$374,323.75, consisting of$370,970.49 in
alleged extra costs for window cleaning services performed, and for an alleged $3,353.26
for three unpaid invoices (J.S. ~~ 1-3). With respect to the portion of the claim pertaining to
unpaid invoices, we find no evidence in the record that London has also submitted a claim
for interest under the Prompt Payment Act, 31 U.S.C. §§ 3901-3907.
22. The contracting officer did not render a decision on the claim (J.S. ~ 12). By
letter dated 7 October 2015, appellant filed its notice of appeal to the Board from the
deemed denial of its claim.
23. In 2016, after the filing of the appeal, the Air Force has tendered the
declaration of Dennis A. Hass, the contracting officer in 2016 (R4, tab 48 at 1). His
conclusion is that "London was paid for the actual square footage reflected in the Task
Orders" (id.). He explained that the contract "indicates the contractor will be provided
the square footage to be cleaned by issuance of Task Orders." He added, that for exterior
window cleaning:
The Task Orders reflected 159,450 square feet for Exterior
Windows CLIN 0004 for the Base Period. All Option Periods
reflected an increase to 174,900 square feet. The contractor
was paid for that square footage minus the 3 shorted invoices
[aggregating $3,353.26] that the Government acknowledges
is due the contractor [see finding 29].
(Id.)
5
24. In his declaration, Mr. Hass states that he requested the Engineering and
Logistics Squadron on base:
[T]o calculate/measure the square footage of the outside
windows for the torn down buildings (100, 105, 110, 115,
120, 125, 130) using the blueprints and/or Computer Assisted
Drawings (CAD) for these torn down buildings. Using blue
prints/CAD, the Civil Engineers calculated the square footage
of these [torn down] buildings ... to be 58,935 square feet on or
about 3 Feb 2016.
Mr. Hass also stated that he:
[A]sked the Civil Engineers to do the same for the three new
four story buildings (270, 271 and 272).... They found the
CAD drawings/they manually measured the outside window
square footage and it amounted to 71,502 square feet on or
about 3 Feb 2016. This resulted in an overall increase of
12,567 square feet from Area A buildings to replacement
buildings in Area B.
(Id.)
25. Mr. Hass disagreed with the square footage estimate relied upon by London in
its complaint of 13 8,640 square feet of exterior window surfaces. He asserted that the
count was made by SSgt Rupert in 2006. He regarded it as "grossly inflated and
incorrect." He amplified that, if the count "reflected square footage for a one year period
then it would have equated to 69,320 square feet per performance occurrence (138,640
[divided by] 2 = 69,320; therefore making the measurement less than what the current
engineers have provided me." (R4, tab 48 at 3)
26. With respect to the square footage of the interior window surfaces, Mr. Hass
opined that the interior window surfaces were covered by CLIN 0003 (see finding 7),
which was unaffected by the revision "and therefore would be priced under CLIN 0003"
(R4, tab 48 at 3 ).
27. London completed all performance of the contract upon the expiration of the
Option Period 4 on 30 September 2009.
6
F. Unpaid Invoices
28. During performance, London submitted three invoices that remain unpaid in
whole or in part, as follows:
(a) Invoice No. 062809, submitted 1 July 2009 for $720.00; unpaid in full;
(b) Invoice No. 092009, submitted 28 September 2009 for $947.20, $738.86 of
which remains unpaid; and
(c) Invoice No. 092109, submitted 28 September 2009 for $81,285.41,
$1,894.40 of which remains unpaid.
The amounts due under these three invoices aggregate $3,353.26. (R4, tab 12 at 1-2, tab 23
at 18-19, 21-22, 23-25)
DECISION
A. Square Footage
London concentrates its arguments under a single broad proposition. London
contends that Amendment No. 03, adding Buildings 270, 271 and 272 to the contract, and
thereby requiring exterior window cleaning (see finding 5) constitutes a compensable
change (Appellant's Brief in Support of Claim (app. br. at 8-17)). London asserts that the
"overarching issue is whether the addition [of these three buildings] resulted in an
increased window square footage area for EC London to clean" (id. at 9). London tells us
that "the new buildings were not anticipated within the Contract requirements at the time
of award (id.).
London's major arguments include, first, that the contract only required it to clean
interior windows over seven feet high (Appellant's Reply to Respondent's Rule 11 Brief
(app. reply) at 2-3). Second, London contends that the contract did not reflect the interior
and exterior glass surfaces of Buildings 270, 271, and 272, and hence that it is entitled to
payment for the increase (id. at 4-5). London strongly relies upon the measurements of
SSgt Rupert (see findings 15-16) and attacks Mr. Hass for producing "inaccurate and
misleading measurements" (app. br. at 12). Third, London stresses that the Air Force
breached its duty to cooperate by failing to modify the contract to reflect the actual glass
surface square footage, and by failing to issue a contracting officer's decision on its claim
(see findings 22-23).
For its part, the Air Force disputes the central premise of London's argument. The
Air Force argues that, "[c]ontrary to Appellant's contention that the square footage of
windows to be cleaned increased when new buildings came on line, these increases were
substantially offset when old buildings whose windows Appellant was required to clean
came off line" (Respondent's Reply to Appellant's Rule 11 BriefRegarding Appeal
7
No. 60273 (gov't reply at 1)). The Air Force relies chiefly upon the calculations of the
Base civil engineers, as detailed in Mr. Hass's declaration (see findings 23-26), and
concludes that London "was overpaid for the work it did during the base year and option
year periods for each cleaning" (Respondent's Rule 11 Brief (gov't br. at 23)). In
addition, with respect to interior window cleaning, the Air Force contends that London
was compensated for interior windows from the floor up to the seven foot point through
CLIN 0003, and hence no additional reimbursement is due (id. at 15).
We reject London's position for two principal reasons. First, we conclude that the
preponderance of the evidence establishes that London was paid for the square footage
set forth in the task orders. Under the Changes clause in the contract (see finding 2),
London may only recover if the alleged change increased its cost of performance. See
FAR 52.243-l(b). The contract stated that "[t]ask order[s] will indicate how many square
feet are ordered for cleaning each semi-annual period" (finding 3). In his declaration, the
contracting officer swears that "London was paid for the actual square footage reflected
in the Task Orders" (finding 23). The record does not contain any affidavit, declaration,
or document contradicting this conclusion. Hence, we can only conclude that, on this
ground alone, London has not established entitlement.
Second, we conclude that we cannot place reliance on the calculations of SS gt Rupert.
As we have found, the record contains no affidavit or declaration from SSgt Rupert
explaining the methodology underlying his calculations, and there is no indication that they
can be replicated by reference to other data (finding 16). By contrast, the contracting officer
relies upon the calculations of the Base civil engineers. The contracting officer has vouched
for their figures under oath, the underlying methodology, which included resort to the CAD
drawings, is explained, and the figures presumably are replicable.
B. Unpaid Invoices
The Air Force does not dispute London's entitlement to the amounts claimed on
each of the three invoices (see finding 28). The invoices were part of London's Contract
Disputes Act claim before us, and we conclude that London is entitled to recover the
aggregate unpaid total of $3,353.26, plus Contract Disputes Act interest on that amount.
London contends, however, that it "is also due interest under the Prompt Payment
Act," 31 U.S.C. §§ 3901-3907 with respect to these invoices (app. reply at 1). While the
Contract Disputes Act and Prompt Payment Act interest rates may correspond, the former
runs from the date London submitted its claim on 16 August 2010 (see finding 21 ), while
the latter would start running a year earlier, in July - September 2009, when the three
invoices were presumably received (see finding 28). See 31 U.S.C. § 3901(a)(4). In
seeking Prompt Payment Act interest, London relies upon FAR 52.232-25(a)(4),
providing in part that the payment office "will pay an interest penalty automatically,
without request from the Contractor, if payment is not made by the due date."
8
We disagree with London that we have jurisdiction over its demand for Prompt
Payment Act interest. While such interest may accrue automatically, the record does not
contain evidence that London has submitted a separate claim for interest under the Prompt
Payment Act (finding 21 ). Absent such a claim, we lack jurisdiction to award Prompt
Payment Act interest. E.g., Firth Constr. Co., ASBCA No. 51660, 00-1 BCA ~ 30,587 at
151.048 ("While appellant did submit a claim for unpaid contract proceeds, we have
found no evidence that it submitted an independent claim for Prompt Payment Act
interest.'').
CONCLUSION
Appellant is entitled to recover $3,353.26 on its unpaid invoices. together with
Contract Disputes Act interest from 16 August 2010, the date of submission of its claim.
In all other respects, the appeal is denied.
Dated: 1 September 2017
ALEXANDER YOUN
Administrative Judge
Armed Services Board
of Contract Appeals
I concur I concur
Administrative Judge
J1ift:;;/
Administrative Judge
Acting Chairman Vice Chairman
Armed Services Board Armed Services Board
of Contract Appeals of Contract Appeals
9
I certify that the foregoing is a true copy of the Opinion and Decision of the
Armed Services Board of Contract Appeals in ASBCA No. 60273, Appeal of E.C.
London & Associates, Inc., rendered in conformance with the Board's Charter.
Dated:
JEFFREY D. GARDIN
Recorder, Armed Services
Board of Contract Appeals
IO
