Judges: Hartman
Filed: Apr. 20, 2017
Latest Update: Mar. 03, 2020
Summary: , Its metal building subcontractor understood the drawing requirements for the curb, as, evidenced by the plans it submitted for the metal building, and it was the obligation of, MULE to coordinate with the concrete subcontractor to ensure the required contract, work was properly performed.
ARMED SERVICES BOARD OF CONTRACT APPEALS
Appeals of -- )
)
MULE Engineering, Inc. ) ASBCA Nos. 60854, 60967, 60968
) 60970,60971,60972
Under Contract No. W9124M-14-C-0014 ) 60973,60976
APPEARANCE FOR THE APPELLANT: Leonard W. Childs, Jr., Esq.
Childs & Associates
Savannah, GA
APPEARANCES FOR THE GOVERNMENT: Raymond M. Saunders, Esq.
Army Chief Trial Attorney
L TC Joseph J. Jankunis, JA
CPI Harry M. Parent, JA
Trial Attorneys
OPINION BY ADMINISTRATIVE JUDGE HARTMAN
In these eight expedited appeals pursuant to Rule 12.2, • the appellant asserts that,
while performing a construction contract for the Department of the Army, its work was
delayed by the Army and it incurred additional expenses due to constructive changes
arising from defective contract specifications. The Army asserts appellant is not entitled
to recover any monies because ( 1) any delays caused by the Army were concurrent with
delays caused by appellant, (2) contract specifications cited by appellant were not
defective, and (3) when an error did occur on a drawing it was "patent," requiring inquiry
by the appellant before it could rely on the drawing in bidding.
FINDINGS OF FACT
In August 2014, the Department of the Army issued a solicitation for bids that
was set aside for bids from 100% Service Disabled Veteran Owned Small Businesses
to construct an addition to Building 7902, a hangar located on Hunter Army Airfield,
Savannah, Georgia. The hangar building addition was to: consist of pre-engineered
metal building framing members and metal roofing and siding panels; be "built on a
structural concrete foundation" with a "finished" concrete floor; possess an eave
height of 19 feet with exposed ductwork and insulation; contain a workable heating,
ventilation and air conditioning (HVAC) system; and have standard doors for use of
personnel and varying-sized overhead-coiling doors. (R4, tab 1 at 6-9)
• A decision under Board Rule 12.2 shall not have value as precedent, and in the absence
of fraud, shall be final and conclusive and may not be appealed or set aside.
The Army solicitation expressly incorporated 29 drawings labeled "Building
Extension, Building 7902," which stated at the very bottom "FOR CONSTRUCTION
05/05/2014." Sheet 4 of the drawings depicted a sanitary sewer line and manhole
cover located within the footprint of the solicited addition to Building 7902. While
this sheet showed demolition and saw cutting of existing concrete pavement for a
proposed rerouting of the sewer line at a 90 degree, rather than 45 degree, angle, the
sheet stated that "All DEMOLITION WORK SHOWN ON THIS DRAWING SHALL
ONLY BE PERFORMED AS A BID ALTERNATE WITH APPROVAL BY THE
OWNER'S PROJECT MANAGER." Sheet 5 of the drawings depicted a sewer line
rerouted at a 90 degree angle with a new manhole outside the footprint of the metal
building, but stated "ALL CONSTRUCTION WORK SHOWN ON THIS DRAWING
SHALL ONLY BE PERFORMED AS A BID ALTERNATE WITH APPROVAL BY
OWNER'S PROJECT MANAGER." (R4, tab 2; tr. 1/17)
With respect to overhead coiling doors, drawing sheet 8 contained the "FLOOR
PLAN" for the addition to Building 7902. The sheet noted the location of a "NEW
33'-0" WIDE X 16' HIGH OVERHEAD COILING DOOR." (R4, tab 2 at 8) Sheet 9 of
the drawings set forth the "REFLECTED CEILING PLAN" for the building addition.
This sheet similarly noted the location for the "NEW 33'-0" WIDE X 16' HIGH
OVERHEAD COILING DOOR." (R4, tab 2 at 9) Section 08 3323 of the contract set
forth specifications for the coiling doors and stated such doors were to be installed in
accordance with manufacturer's instructions and the contractor should "verify that
opening sizes, tolerances and conditions are acceptable" (R4, tab 5 at 24-25).
With respect to concrete curbing to be installed, drawing sheet 11, figure C 1,
south elevation, contained a detail in the southwest comer indicating the
"GRADE@CORNER" is+ or - 34.43 feet above a fixed point. Similarly, the sheet
contained a detail in the southeast comer indicating the "GRADE@CORNER" is + or -
33.67 feet above the same fixed point. Figure Cl depicted the concrete curb as a straight
line that accounted for elevation change running from the lower southwest comer to the
lower southeast comer of the building. Immediately above the "GRADE@CORNER"
details, figure Cl stated in each comer that the "TOP OF CURB" is typically 35.10 feet
above the same fixed point used to measure "GRADE@CORNER." (Tr. 1/351-52,
2/187; R4, tab 2 at 11) Drawing sheet 12, figure "Al," East Elevation, stated in the
northeast comer the "GRADE@POINT OF CONNECTION" to the existing structure is
+or - 34.74 feet above a fixed point. Similarly, figure Al stated the
"GRADE@CORNER" is+ or- 33.67 feet above the same fixed point. Figure "Al"
also depicted the concrete curb as a straight line that accounted for elevation changes
running from the point of connection in the lower northeast comer to the lower southeast
comer of the building. Immediately above the "GRADE@CORNER" and
"GRADE@POINT OF CONNECTION" details, figure Al included a statement in each
comer that "TOP OF CURB" is typically 35.10 feet above the same fixed point used to
measure the "GRADE@ CORNER" and "GRADE@POINT OF CONNECTION."
(Tr. 1/355-56, 2/188; R4, tab 2 at 12) Sheet 14, figure "Al," Sidewall Metal Siding
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Section, contained a straight line depicting the concrete curb and stated the "TOP OF
CURB" is 35.10 feet above a fixed point. Beneath the concrete curb is a second bold
font straight line entitled, "EXTERIOR CONCRETE." At the end of the bold font
exterior concrete line are the words "EXIST. GRADE VARIES." Between the straight
line depicting curb and the bold font straight line depicting the exterior concrete, figure
Al stated "DISTANCE FROM TOP OF CURB TO EXTERIOR CONCRETE
VARIES." (Tr. 1/356-58, 2/188-89; R4, tab 2 at 14) Drawing sheet 18, figure SBIOl,
Foundation Plan -Base Bid, stated "NEW 6" X 12" CONCRETE CURB, TYP" (R4,
tab 2 at 18). During trial, appellant MULE Engineering, Inc. 's (MULE's) CEO testified
that sheet 18 and other contract drawings required MULE to pour a concrete curb that
was 6 to 12 inches in height (tr. 1/157-58, 164, 353, 354, 357-60).
Sheet 20 of the drawings set forth the "ROOF FRAMING PLAN" for the
addition to building 7902. As both MULE's project superintendent and the Army's
in-house architect who reviewed the drawings before solicitation of bids testified at
trial, drawing sheet 20 contained a detail (horizontal hash marks similar in appearance
to a horizontal "H") indicating that the building addition's northeast comer required the
installation of a column. Further, along the east wall of the addition (from the southeast
comer to the northeast comer) there were four similar sets of hash marks with each set
indicating the need to install a column too. While the northeast comer column appeared
upon the "framing" plan, it did not appear on drawing sheet 18, the "FOUNDATION
PLAN," because (unlike the southeast comer column appearing on sheet 18) the
northeast column did not require installation of a concrete footer and pedestal.
(R4, tab 2 at 18, 20, tab 64 at 6; tr. 1/297-303, 2/125, 189-90, 202-04, 211-12)
The "Munters" dehumidification unit specified for the addition was depicted on
the Mechanical, Floor, and Roof plans. While the Floor and Roof plans showed the
unit with the return air duct on the left side or western side (R4, tab 2 at 8, 10), the
Mechanical Plan showed the configuration of the unit with the return air duct on the
right or eastern side (id. at 22). The Munters unit orientation in the Floor and Roof
Plans is the "complete opposite" of the unit orientation in the Mechanical plan
(tr. 1/312). The two representations "absolutely" do not look anything alike and,
according to MULE's CEO at trial, there was a "big time" glaring difference between
the drawings (tr. 1/312, 316).
On 19 August 2014, the Army hosted a site visit at building 7902 for interested
bidders (R4, tab 1 at 1, tab 3 at 1-3, 10). Subsequently, on 9 September 2014, the Army
issued Amendment No. 0001 to the solicitation to reflect the questions, answers, and
clarifications that resulted from the site visit. The amendment stated in response to two
questions from prospective bidders that the sanitary sewer line and manhole cover "Bid
Alternate has been eliminated." (R4, tab 3 at 3, tab 5 at 4-5; tr. 1/41-43, 206-07)
While appellant, MULE began performing construction contracts only in 2013,
its chief executive officer (CEO) was a graduate of West Point with a concentration in
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mechanical engineering who had served in the Corps of Engineers performing and
supervising civil engineering work in locations such as Bosnia, Kuwait, Iraq, and
· Afghanistan, and who had worked for government contractors doing projects all over
the world, including "running" a $200 million Corps of Engineers contract for the
restoration of the levee system after Hurricane Katrina (tr. 1/8-10). MULE's CEO
prepared its bid for the solicited work with the assistance of a part-time estimator.
MULE's bid anticipated subcontractors would perform at least 75 to 80% of the
contract work, including the metal building and concrete work because MULE was not
capable of performing such work at the time. According to the CEO, the part-time
estimator obtained either an oral or written quote to perform the metal building and
concrete work from a firm in Sarasota, Florida, named "PEMB." PEMB was to
assemble and erect a metal building which was manufactured by "Trident." MULE,
however, presented no contemporaneous written documentation of such a quote or
contact information for PEMB such as an address, phone number or email for
inclusion in the record here. (Tr. 1196-97, 197-98, 200-02, 209, 210, 227-28; R4,
tab 401 at 32-35, 40-43)
On 26 September 2014, the Army awarded a firm-fixed-price contract in the
amount of $827,023.78 to MULE to construct the addition to the hangar and perform
related hangar renovation work. The contract, No. W9124M-14-C-0014, required
MULE to start work within 10 calendar days of receiving the notice to proceed (NTP)
and to complete contract performance within 180 calendar days of the NTP. Section J
of the contract stated MULE was to furnish the Army 17 submittals for review, 13 of
which pertained to the metal building system, "15 calendar days after award." With
respect to the metal building system manufacturer, the contract stated qualifications
required were a manufacturer "regularly engaged for past 10 years in manufacture of
metal building systems of similar type to that specified" and "[a]ccredited based on
IAS Accreditation Criteria AC 472." The parties' contract incorporated by reference
Federal Acquisition Regulation (FAR) 52.222-1 l(d)(l), SUBCONTRACTS (LABOR
STANDARDS) (MAY 2014) requiring the submission of Standard Form 1413, Statement
and Acknowledgement- Subcontractors, "[w]ithin 14 days after award of the
contract" and "[ w ]ithin 14 days after the award of any subsequently awarded
subcontract." The contract also incorporated by reference FAR 52.236-15,
SCHEDULES FOR CONSTRUCTION CONTRACTS (APR 1984), and required MULE submit
to the Army a progress schedule prior to commencing contract work. (R4, tab 5 at 1-4,
29,48,52, 53,67-68)
On 10 November 2014, MULE submitted a contract progress schedule and the
Army approved that schedule on 13 November 2014. This schedule indicated that
construction would be complete on 30 May 2015 based on an estimated 1 December
2014 construction start date. It showed demolition would commence on 22 December
2014 and be completed by 5 January 2015, when concrete work would commence for
three weeks. Metal building work was set to begin the last week of concrete work, i.e.,
19 January 2015. (R4, tabs 22, 189)
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On 20 November 2014, MULE's project superintendent sent an email to the
Army's contract specialist, Sergeant First Class (SFC) Brandon Cooper, stating:
MULE has a "Metal building contractor" that "would very much like to build this
project with us"; this contractor is not "IAS certified" as required by the specifications;
the contractor has offered to have an IAS certified contractor "build the frame steel"
for it; and MULE is "asking if this will be ok to proceed with or maybe waive the IAS
certification all together." SFC Cooper responded by email with a copy of his
message also sent to the Army's contracting officer (CO) that, "[i]n accordance with
the specifications of the contract, the work must be performed by an IAS certified
company" and "[w]e will not waive this requirement." According to MULE's CEO,
the contractor referenced in its project superintendent's email was not PEMB.
(R4, tab I 90; tr. I/220-23)
On 9 December 2014, the Army CO issued to MULE the NTP, which stated
"[y]ou are to commence work within I 0 calendar days after receipt ... , prosecute the
work diligently and complete the project not later than I 80 calendar days after [NTP]
receipt" (R4, tab 25 at 3). As of 9 December 2014, MULE had submitted to the Army
only six contract submittals: performance and payment bonds, accident prevention
plan, superintendence by contractor, progress schedule, quality control plan and
certificates of insurance. None of these submittals pertained to subcontractors or
materials. (R4, tab 5 at 67-68, tab 146 at 1-3; tr. 1/216-17)
From contract award through issuance of the NTP, MULE's attempts to contact
PEMB, its planned metal building and concrete subcontractor, to enter into a written
subcontract were unsuccessful. MULE's CEO was "incredibly concerned" and "going
ballistic." He began looking for a subcontractor "to replace that subcontractor that was
MIA." (Tr. l/2I8-20)
On 30 December 2014, the contract progress report prepared indicated that, as
of that date, 1.42% of the project had been completed by MULE, i.e., MULE simply
had furnished the required bond (R4, tabs 195, 197). According to various progress
reports prepared, MULE considered itself to be on a holiday break until 5 January
2015 (R4, tab I 97).
On 5 January 20 I 5, IL T Alexander Carlton, Battalion Engineer for the 3/ I 60th,
the Army component utilizing the hangar, participated in a site visit with MULE's
superintendent. The superintendent told IL T Carlton that a decision had been made
that sewer re-rerouting was not to be part of the contract work. IL T Carlton sent an
email to CO Lynda Bush the same date stating "[w]e really do not want this to get
eliminated because then the man hole cover for that line would be inside of the new
enclosure. (R4, tab I 98) CO Bush responded the next day that "it's in there" and
referred IL T Carlton to sheet three of the contract drawings (id.). IL T Carlton replied
that he saw "the sewer re-routing was indeed on the design drawings, but. .. could not
find any information about it in the solicitation paperwork." He stated that MULE's
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superintendent said he believes it was removed from the scope of work sometime in
September and that it was not part of the scope of work when they submitted their bid.
lLT Carlton noted that Jacob Whitehurst, the CO's representative (COR), told
MULE's superintendent to submit a request for information (RFI) to the CO to "get it
included in the project again," but he was not sure "as to what the status of that is."
CO Bush responded the same date that she believes previously "it was an additive but
that was changed when it was resolicited" and thus "[i]t should have been in the
drawings," but we "will look." CO Bush immediately sent an email to SFC Cooper,
contract specialist, asking him to take a look at the solicitation and drawings that were
put out to bid. Within an hour, SFC Cooper replied that there was nothing in the
solicitation with respect to rerouting, but "it shows the location of the new manhole
cover clearly on pg 4 of the drawings" and "details the modification and pipe
connection to the new manhole on pg 5." (R4, tabs 193, 198-99; tr. 1145-50)
As of 12 January 2015, MULE was significantly behind its proposed schedule.
Considering the NTP issued one week later than planned in the schedule, MULE was
to have completed the demolition work by 12 January and be commencing three weeks
of concrete work, during which metal building work was to begin. MULE, however,
had no subcontractor to perform either concrete or metal building work and had not
submitted a single subcontractor or material submittal to the Army. MULE's CEO
"had no thoughts that [MULE] wouldn't be given a no-cost change order" to "extend
the time of the project." While he knew that the government needed this facility as
quickly as possible, he was aware the project "had been sitting there for at least a year,
if not longer, while it was rebid" so he did not think "getting it done by ... the 30th of
May, was absolutely and positively essential." (R4, tabs 22, 189; tr. 1/216-18, 286-87)
On 13 January MULE met with SFC Cooper, the contract specialist, to discuss
mobilization. According to MULE's CEO, SFC Cooper told him that sewer rerouting
was part of the contract and, when he "violently disagreed," SFC Cooper asked to see
the bid documents in MULE's possession. (R4, tab 152; tr. 1/54-56) By email dated
20 January 2015, MULE's CEO advised SFC Cooper that the size of the electronic file
containing the plans bid exceeds the allowable limit for MULE's email, but MULE
had sent him an invite to Dropbox, a website MULE had used to obtain subcontractor
proposals for the project, where the full drawings were set forth. MULE's CEO added
that: the COR could view a hardcopy of the 5 May 2014 plans at the jobsite; the only
version of the plans in the possession of MULE was one dated 5 May 2014; and the
first amendment to the contract expressly stated that the bid alternate relating to new
manhole and sanitary sewer "has been eliminated." Three days later, on Friday,
23 January 2015, MULE's CEO sent SFC Cooper another email asking ifhe could
meet on Monday or Tuesday "to figure out where we are going on the Hangar project"
and stating "I've got things on hold right now until we determine what we're going to
do on the sewer and manhole." SFC Copper responded immediately by email that he
would be out for the next two weeks, but was leaving a message for CO Bush (who
was scheduled to be back on Monday) to contact MULE to arrange a meeting.
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SFC Cooper promptly emailed the CO about the requested meeting, stating "those
drawings include the rerouting of the sewer and man hole," but MULE says its "bid
was based on a different set of drawings that did not include the sewer plans." (R4,
tabs 27, 204; tr. 1/56-59, 66-67, 73)
By email dated Monday, 26 January 2015, CO Bush informed MULE that her
office did not have access to "Dropbox" (R4, tab 28). On 27 January 2015, MULE's
CEO met with COR Jacob Whitehurst per the protocol for resolving issues that was set
forth by CO Bush in a conversation with MULE's superintendent. According to
MULE's CEO, during the course of this meeting with COR Whitehurst, he discovered
that the COR was using a set of plans with a different date from the plans furnished to
MULE and he requested MULE receive a copy of the COR's plans, but was never
supplied a copy. As of31January2015, MULE had mobilized and erected a fence at
the site but performed no demolition or other contract work. (R4, tab 31 at 7, tab 152
at 9, tab 203; tr. 1/59-60)
By email dated 11 February 2015, CO Bush advised MULE that: the manhole
cover and sewer line are included in the drawings set forth in the solicitation; it was
her understanding that MULE used "a different set of drawings" in bidding; and she
wished to know who provided those drawings to MULE. CO Bush directed MULE to
provide to SFC Cooper on or before 18 February a copy of its bid form, all worksheets
and other data used in preparing MULE' s bid, subcontractor and supplier quotations,
and any other evidence of how the mistake occurred and the bid intended. (R4, tab 32)
MULE's initial progress schedule indicated that "HVAC Mechanical" work
constituted 35.68% of total project work and was to commence about 9 February 2015,
but MULE did not furnish its contractually-required "Electrical submittal - Munters
unit, Air distribution & ductwork," for approval until 13 February 2015. The Munters
unit was a dehumidification system and associated ductwork with a long-lead time
because it was being manufactured in Europe and shipped to the United States. While
MULE believed it might take six weeks to obtain approval of a complicated submittal
such as that for the Munster unit, it did not furnish the submittal to the Army prior to
13 February because:
We were trying to nail down who was going to do what.
We had subcontractors that were AWOL. We had
subcontractors that I had to go back and renegotiate pricing
on, to do deducts on it. And one of those was the one that
submitted the HVAC Munters unit.
This subcontractor actually kept on bugging me,
you know. We need to go ahead and submit this. This is
an early lead time item - or is a long lead time item. We
ended up submitting it in February, but that's because the
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final contract with this - with Terrell Heating & Air
Conditioning wasn't actually accomplished, I believe, until
February ....
(Tr. 1/323) MULE's submittal was for a Munters unit matching the Mechanical Plan
with the return air duct on the "right" or eastern side of the unit. (R4, tab 2 at 22-24,
tab 5 at 7-8, 67-68, tab 50 at 1, tab 146 at 7, tab 189 at 1-2, tab 401at147-50;
tr. 1/140-45, 217-18, 309-10, 316-19, 321-24, 327-28)
By letter to the CO dated 16 February 2015, MULE advised:
Apparently, there was a major mix-up on Plans and
Specifications for the HAAF Hanger 7902. The only copy
of the plans and specs that we have were downloaded off
the Army Single Face to Industry Acquisition Business
Web Site following the advertisement on FBO. Those
drawings are labeled H-1859 and have the notation "For
Construction 05/05/14" on the bottom right corner of each
page. Further, the sanitary sewer and manhole drawings
have the notation, "All demolition (or construction) work
shown on this drawing shall only be performed as a bid
alternative with approval by owner's project manager" on
sheets CD 101 and CG 101. ...
MULE proposed on the project without the new sanitary
sewer and manhole. However, the bid alternate with those
items apparently is required. We've determined that
leaving the sanitary sewer and manhole as is presently, is
dangerous to workers inside the building due to the
methane gasses from the system.
In our last meeting with Jacob Whitehurst. .. , we found that
there is a more recent set of drawings than the ones that we
have .... In order to insure that we have the latest plans
and specs to deliver the complete order, MULE requests
that we be provided with those plans and specifications as
soon as possible ....
As requested, I have attached the bid from my file.
However, any additional worksheets are not really
applicable until we get the current plans and specs so we
can check for differences. We have made preparations to
proceed with the alternate bid but need the updated plans
8
and specs to proceed. In the meantime, we have put all
present plans on hold until this issue is ~esolve.
(R4, tab 30 at 8-11) After being unable to supply the remaining documents requested
to the Army by "Dropbox," flash drive, or compact disc, MULE created a hard copy of
the documents to present to CO Bush, SFC Cooper, and COR Whitehurst at a meeting
on 25 February 2015. By email dated 24 February, the CO informed MULE "it is my
understanding that an older set of drawings were used H-1743, not the drawings
specified in the solicitation, H-1859," and please "[l]et's get all the drawings together
to review them." The next day, MULE met briefly with CO Bush and other Army
personnel. According to the testimony ofMULE's CEO, CO Bush said MULE had
been operating off the wrong documents, wanted to know where MULE obtained its
documents, said she would make a decision on the matter, and left. The
contemporaneous daily report prepared by COR Whitehurst, however, stated CO Bush
directed MULE to "resume work with drawing that was used for [its] BID proposal."
(R4, tabs 29, 31-32, 213 at 4; tr. 1/67-69, 76-77) As of26 February 2015, MULE had
performed less than five percent of the contract work, i.e., only bond and mobilization.
Demolition work had not begun. (R4, tab 213 at 8)
On 10 March 2015, CO Bush sent MULE an email simply stating: "The hangar
will be built as bid." MULE's CEO says he did not know whether CO Bush meant the
hangar was to be built as MULE had bid the project, as CO Bush apparently intended
it to be bid, or as another bidder had bid the project. The next day, MULE sought
clarification but SFC Cooper was away and CO Bush did not respond. By email dated
18 March 2015, CO Bush asked MULE's CEO to please provide the status of the
hangar work because "[t]he command would like to know when work will begin."
The next day, 19 March 2015, MULE's CEO replied "[w]ork should begin soon" and
he would like to meet with the CO on 23 or 24 March 2015. A day later, on 20 March
2015, MULE's CEO sent SFC Cooper an email stating he realized he was just getting
back but desired a meeting to discuss if the sanitary sewer system and manhole will
not be done at all or after MULE completed its work, whether the engineer of record
can confirm that the enclosure of the manhole poses no dangers to life, safety, or
health, and whether an extension of overhead and time for project will be considered
due to project being on hold because of manhole. SFC Cooper responded on 23 March
2015 that the "structure is to be built as bid" as "discussed in the meeting we had
before I left" and the "engineer of record has reviewed the drawings and can confirm
that it poses no dangers to life[,] safety or health." (R4, tab 33 at 3, 5, 8-9, tab 220;
tr. 1/81-82) A week later, on 31March2015, CO Bush sent MULE's CEO an email
asking simply "[w]hen will work begin" (R4, tab 33 at 1). In an email reply the same
day, MULE' s CEO stated there would be a subcontractor kickoff meeting the next
week and a "sub will start shortly after" (id.).
MULE had not been able to contact PEMB during January, February or March
of 2015 and had no subcontract for the performance of concrete and metal building
9
work on the project. MULE's CEO testified that MULE heard through a third party in
March that PEMB had gone out of business, MULE has no idea when PEMB went out
of business and did not know the reason why it went out of business. On 5 April 2015,
MULE entered into a subcontract with Dayenesi, Inc., to perform the project concrete
and metal building work. (R4, tab 394 at 1, tab 401at118-19; tr. l/22?-30, 232)
As of 14 April 2015, MULE had not performed any demolition or construction
\Vork on the project or provided the Army with the remaining contractually-required
submittals for the project, except for the Munters unit submittal furnished on
13 February 2015 (R4, tab 34 at 4, tabs 224, 226). On 15 April 2015, the Army issued
MULE a contract discrepancy report (CDR) based on its failure to perform work and
furnish submittals required by the contract (R4, tab 34 at 4-5).
On 18 April 2015, MULE furnished the Army its first submittal with respect to
a subcontractor (standard form (SF) 1413)) for its newly obtained metal building and
concrete subcontractor, Dayenesi (R4, tab 35 at 2-6, tab 146 at 7). Eleven days later,
on 29 April, four months after demolition was to have begun, a subcontractor,
Aiken-Harper, initiated demolition at the site by removing ceiling light fixtures (R4,
tab 229 at 4, tab 390 at 1). On 30 April 2015, MULE furnished a second subcontractor
submittal for Terrell's Refrigeration, Heating & Air Conditioning (Terrell), the entity
responsible for installation of the Munters unit (R4, tab 38 at 1-5, tab 146 at 7). The
next day, on 1 May 2015, MULE also furnished for approval metal building product
data submittals (R4, tab 146 at 7). With the exception of removal of the light fixtures
and delivery of some equipment to the site, MULE conducted no work at the site from
1 April 2015 to 28 May 2015 (R4, tabs 229-33, 390 at 1-5).
In May to June 2015, Dayenesi prepared, MULE reviewed and the Army
approved MULE's Transmittal No. 0012, which contained shop drawings for the metal
building (tr. 1/305-06; R4, tabs 44, 146 at 7). The northeast comer of the Primary
Steel Location Plan and the Roof Framing Plan of the metal building shop drawings
both contained a detail similar to the Roof Framing Plan in the contract drawings
(horizontal hash marks similar in appearance to a horizontal "H") indicating the
northeast comer required the addition of a column (compare R4, tab 2 at 20, with R4,
tab 44 at 6- 7; tr. 2/126, 2/201-02). With respect to the metal building side panels that
intersect with the concrete curb, the submittal did not separately describe, in writing,
any variation from the contract requirements or otherwise note any ambiguities in the
drawings concerning the height of the curb. Rather, drawings ES through E8 depicted
a finished curb height of 3 5 .1 feet above the fixed point with none indicating a uniform
"six inch curb height." Having a uniform curb height 35.1 feet above the fixed point
was of import because the curb constituted the point at which the metal building wall
panels joined or intersected the ground. (R4, tab 44 at 9-12; tr. 2/29, 190-91) With
respect to the 33' x 16' overhead coiling door, the submittal asked "PLEASE VERIFY
HEADER LOCATION FROM CURB OR BASE ELEVATION" (R4, tab 44 at 9). In
approving the submittal, the Army set forth a response to the coiling door inquiry in
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red font within a red, cloud-shaped rectangle. The Army stated: "16'-0" from top of
curb." In separate box with an arrow pointing to the cloud shaped rectangle, the Army
further stated: "Note: Actual door height may vary depending on door mfr. Selected.
Mfr. installation details relative to curb location will determine finished door height."
(R4, tab 44 at 9; tr. 21197-99)
On 1 June 2015, MULE submitted a revised work progress schedule with a
completion date of 5 November (R4, tab 51). The next day, on 2 June 2015, the Army
approved the Munters submittal (R4, tab 146 at 1). The same day, a subcontractor for
Dayenesi, Advance Concrete, began cutting concrete (R4, tab 390 at 5). On 5 June
2015, MULE ordered a Munters unit matching the Mechanical Plan with the return air
duct on the right or eastern side of the unit (R4, tab 146 at 1, tab 401 at 149-50). The
Army approved MULE's revised schedule on 18 June 2015 (R4, tab 56). Cutting of
concrete and performance of other concrete work continued for much of the month
until lack of prefab rebar for pillars halted concrete work (R4, tab 390 at 5-9).
In early July, MULE learned that it would be about another five weeks before
receipt of the metal building components and that its subcontractor would begin taking
down existing metal needed to be removed in three weeks. It also recognized no more
concrete work could occur without rebar for the pillars, which was being cut and bent
offsite. (R4, tab 390 at 8-9) On 7 July 2015, MULE submitted to the Army its anchor
bolt plan, which stated with respect to installation of a metal column in the northeast
comer of the building addition that:
This column will be mounted directly to existing slab. No
curb or pedestal.
(R4, tab 64 at 1, 6, tab 146 at 7) On or about 20 July 2015, MULE received the rebar
necessary to continue with concrete work (R4, tab 146 at 10-11 ). During the following
week, Perkins Concrete, a concrete mason subcontractor, tied steel together and
performed other preparatory work for concrete pour (id. at 11-12). Concrete work
continued from 3 August through 25 August 2015 (id. at 13-16). During the weeks of
17 and 24 August 2015, MULE installed a concrete curb along the perimeter of the
southern and eastern exterior walls. Due to the decrease in elevation from the
southwest comer of the building to the southeast comer of the building, the curb
sloped from a high point in the southwest corner to a low point in the southeast comer.
Similarly, due to the decrease in elevation from the northeast corner of the building to
the southeast comer of the building, despite being a uniform height above the ground,
the curb sloped from a high point in the northeast comer to a low point in the southeast
comer. (Tr. 11354, 21129-30, 193-96, R4, tab 2 at 11-12, 14, tab 297 at 4-5, tab 390 at
15-16, tab 403 at 1-4)
On Wednesday, 27 August 2015, Dayenesi's subcontractor, Metal Building
Maintenance (MBM), started the removal and demolition of the existing metal canopy
11
and purlins. This work continued through 18 September 2015. (R4, tab 390 at 17-19)
The components of the metal building arrived after demolition of the existing metal
canopy (tr. 2/93, 97, 155-56, 163; see R4, tab 390 at 19-20). During the four weeks
following removal of the existing metal canopy, MBM (Dayenesi's subcontractor)
reinforced the existing metal structure by welding steel plates and clips onto the beams
and rafters (R4, tab 390 at 20-23). From 17 through 23 October 2015, Miller Painting
Company painted the steel columns and rafters (id. at 24).
As of21 October, 2015, MULE's revised progress schedule indicated it was to
have completed over 97% of the project work. MULE, however, had only completed
21.53% of the work. (R4, tab 51 at 5, tab 285 at 6)
On Monday, 25 October 2015, Terrell received the Munters dehumidifier. At
time of delivery, MULE had completed less than half the work to be performed on the
metal building. MULE could not begin installing duct work for the Munters unit due to
lack of a completed roof and side panels for the metal building, plus other reasons such
as a need to extend the concrete pad that had been poured for the unit. During the week
of Munters delivery, MBM installed purlins for the metal building. (R4, tab 294 at 6,
tab 390 at 25; tr. 2/141-50)
During the month of November, Dayenesi and its subcontractor (MBM)
continued installing purlins, support beams and rafters, and installed roof panels and
insulation. The electrical subcontractor (Aiken-Harper) began installation of conduit.
(R4, tab 390 at 26-29)
During December 2015, MBM finished installing roof panels and then engaged
in "seaming" of those panels. Aiken-Harper continued installing conduit throughout
the structure. On 21December2015, Dayenesi's concrete subcontractor completed
work on the concrete slab for the dehumidifier. Two days later, on 23 December, the
dehumidifier was placed on its pad. The same day, MBM began installing side panels
on the building. (R4, tab 390 at 28-33)
When Dayenesi and MBM started installation of side panels, the sloping nature
of the curb became obvious and they realized action needed to be taken. To remedy
the problem, Dayenesi's concrete subcontractor raised the height of the curb in places
to provide a level surface for the metal building side panels. It added no more than
6 inches of additional concrete to 107 lineal feet of the concrete curb to make the top
of the curb level across the eastern and southern perimeters of the building. As shown
by photographs taken by the Army, the total height of the completed concrete curb at
no point exceeded 12 inches anywhere along the 107 lineal feet where additional
concrete was poured to make the top of the curb level across the eastern and southern
building perimeters. (Tr. 11354, 2/129-30, 193-96, 227-28; R4, tab 403 at 1-4, tab 404;
see R4, tab 297 at 4-5)
12
On 6 January 2016, the COR prepared a daily report stating:
Received a call from Supt that the largest roll-up doors
ordered was [sic] the wrong size and that the doors/frames
will have to be cut to be retrofitted to be installed. I
informed the Supt to wait on the installation of this until I
received OK to proceed from [C]O.
(R4, tab 338 at 4, tab 390 at 34) Five days later, on 11 January 2016, the COR
prep.ared a daily report which stated:
Supt informed me that the sub-contractor re-installed the
headers for the proper height required for the roll-up door
installation at no cost to the GOV.
(R4, tab 342 at 2, tab 390 at 34, 36) The next day, 12 January, MBM completed
installation of the side panels and Terrell began installing ductwork for the dehumidifier
(R4, tab 390 at 36). On 14 January 2016, Action Overhead Door continued installation
of the 33' overhead door (id. at 37). Two days later, on 16 January 2016, MULE
submitted to the CO a change order request pertaining to the header beam for an
overhead coiling door stating as follows:
There have been three instances where we have needed to
request a change from the government. All three of these
requests have been documented and approved by your staff
in order to keep the project moving forward. The
following are the listed changes.
3. The plans and specifications called for a 33'x 16'
overhead coiling door to be installed in the new
structure. However, the plans did not have the correct
door opening in order to install the door. We needed
to drop the header beam 12 inches in order to get the
proper clearance to install the door.
(R4, tab 343 at 2) On 19 January 2016, the COR prepared a daily report which stated:
"Received message from [C]O that MULE ... was charging the Government for things that
[were] discussed to be done by Contractor at no cost to the Government" (R4, tab 344 at 3).
During the last half of January 2016, MULE' s subcontractors were installing light
fixtures, door hardware, and trim (R4, tab 390 at 37-38). The first two weeks of February
2016, MULE's subcontractors built the ducts for the supply and return for the
13
dehumidifier, repositioned the dehumidifier, and completed the hookup for the
dehumidifier. On 19 February 2016, Action Overhead Door completed installing the 33'
roll up door. Other tasks being performed during the last two weeks of February included
lightening protection, fire alarm, painting, and punchlist work. (R4, tab 390 at 40-49)
On 31 May 2016, MULE submitted 11 claims to the CO. First, MULE asserted
the CO "delayed the work by directing the contractor to perform work [with respect to
the sanitary sewer manhole] that was not 'expressly or impliedly authorized by this
contract"' and "then compounded the issue by a 'failure ... to act...within a reasonable
time"' to "direct the contractor to perform the work as bid" (R4, tab 7 at 1). Second,
MULE asserted it requested copies of the drawings being used by Army personnel,
those plans were never presented to it, and it was therefore additionally delayed "NOT
concurrent with the previous delay" (id.). Third, MULE asserted that its initial metal
building subcontractor went out of business due to Army delay in the project and the
Army is responsible for the increase in cost it incurred from bid price to actual contract
work (id. at 2; see R4, tab 8 at 2). Fourth, MULE asserted the depth of the concrete
apron was 18" rather than 15" and it was entitled to an additional $3,478.15 for cutting
thicker concrete (R4, tab 8 at 2). Fifth, MULE asserted it was entitled to an equitable
adjustment for the cost of an additional comer column (R4, tab 7 at 2, tab 8 at 2).
Sixth, MULE asserted it was entitled to an equitable adjustment for the cost of
changing out the return air duct on the Munters dehumidifier unit (id.). Seventh,
MULE asserted entitlement to three months of delay costs due to the Army's delay in
approving its Munters unit submittal (R4, tab 8 at 2). Eighth, MULE asserted it was
entitled to an equitable adjustment for having had to pour additional concrete curb
allegedly due to a misstatement on the drawings (R4, tab 7 at 2, tab 8 at 2). Ninth,
MULE asserted that it was entitled to an equitable adjustment for removing bollards
mistakenly shown as remaining in place on the drawings (R4, tab 7 at 2, tab 8 at 3).
Tenth, MULE asserted entitlement to an equitable adjustment for altering the return air
vent on the existing structure which interfered with the new roof (R4, tab 8 at 3).
Finally, MULE asserted entitlement to an equitable adjustment for extra work it
performed as a result of the plans purportedly not having "the correct door opening to
install" the "33' x 16' overhead coiling door" specified (R4, tab 7 at 2, tab 8 at 3).
On 29 July 2016, the CO issued a final decision denying claims one, two, three,
six, seven, and eleven in their entirety (R4, tab 8). She granted claims four and ten in
their entirety. With respect to claim five, she granted the contractor $1,914.04 on the
theory the column was missing from the plans but did not require a footing or pedestal.
(Id. at 2) Finally, with respect to claim eight, she granted the contractor $4,992.67 on
the grounds that this should be "a shared cost" because, while there were six to eight
contract drawing notes indicating a level curb with an elevation of 35.10', there was
one note referencing a 6" curb (id. at 3).
MULE timely appealed the CO's final decision to this Board. The Board
docketed MULE's appeal as ASBCA No. 60854. By letter dated 22 December 2016,
14
MULE requested that its 11 claims be separated into 11 appeals and that each appeal
be processed pursuant to Board Rule 12.2. The Board's Recorder granted MULE's
request, assigning to claim one ASBCA No. 60854 and ASBCA Nos. 60967 through
60976 respectively, to the following 10 claims. On 13 January 2017, the parties
requested MULE's 11 appeals pursuant to Rule 12.2 be bifurcated, with the Board
conducting proceedings only with respect to entitlement. The Board granted the
parties' motion. The Army subsequently stipulated to entitlement in ASBCA
Nos. 60969 (claim four) and 60975 (claim ten) and we dismissed both appeals since
the CO had provided MULE's full requested relief by unilateral contract modification.
The Army also stipulated to entitlement in ASBCA No. 60974 (claim nine), which we
sustained and returned to the parties for negotiation of quantum.
Trial was held in Savannah, Georgia, on 16 and 17 February 2017. Thereafter,
MULE submitted a post-trial brief, the Army submitted a response to MULE's brief,
MULE filed a reply to the Army's response, and the Army filed a sur-reply to
MULE's reply brief.
DECISION
ASBCA Nos. 60854 & 60967 - Manhole & Differing Drawings Delay Claims
At trial and in its legal briefs, MULE contends that the Army delayed it by 192
days or more (i.e., over six months) commencing on or before 23 January 2015 by
stating that the contract required MULE to perform sanitary sewer rerouting (thereby
removing a manhole from within the perimeter of the new building addition) and not
providing it with copies of one or more sets of contract drawings within the Army's
possession that were not supplied to bidders for purposes of bidding upon the contract
that was awarded to MULE but were allegedly being used by Army personnel. MULE
states the CO's delay in responding to its assertions that it was not required to perform
the sanitary sewer work under the contract and in addressing health and safety issues
raised by MULE regarding existence of a manhole (with accumulating methane gas)
within the perimeter of the new building addition "led to the suspension of work" by
MULE and the Army's actions "were the sole and proximate cause of the suspension"
and "per se unreasonable" delaying MULE for an unreasonable period of time and
causing it additional expense and injury. (App. br. at 21-24; see id. at 16)
Citing John A. Johnson & Sons, Inc. v. United States, 180 Ct. Cl. 969, 986
(1967), MULE correctly notes at page 23 of its post-trial brief that a contractor is only
entitled to recover under the Suspension of Work clause (FAR 52.242-14) if"the
Government's actions are the sole proximate cause of the Contractor's .. .loss, and the
Contractor would not have been delayed for any other reason during that period." It
adds a contractor "cannot recover under the Suspension of Work clause if the delay in
question was concurrent." MULE, however, does not address specifically in its briefs
15
the Army's contention here that there was "concurrent delay" by MULE during the
period in question.
The record before the Board shows that the initial work to be performed under the
contract concerned concrete and the metal building to be erected. At the time of contract
award in September 2014 (and through 4 April 2015) MULE was incapable of performing
concrete and metal building work itself and had no legal relationship with a subcontractor
who had agreed to perform any of that contract work. While MULE' s CEO testified that
MULE bid the contract based upon an oral quote from a prospective subcontractor that he
believes was obtained by a part-time estimator, there is no contemporaneous evidence in
the appeal record relating to such an oral quote and MULE did not call the part-time
estimator to testify at the hearing. MULE' s CEO did not provide in his testimony the
name of the individual who is said to have furnished the oral quote to the estimator and
was unable to furnish any contact information for the prospective subcontractor. MULE's
CEO did testify during trial that after contract award MULE was never able to contact the
prospective contractor from whom it said it obtained the quote and that, after NTP,
MULE's CEO was "incredibly concerned" about lack of a subcontractor, "going ballistic"
with respect to that issue, and looking for a subcontractor "to replace that subcontractor
that was MIA." Accordingly, even ifthe Board were to conclude that the Army's
confusion concerning whether rerouting of the sanitary sewer was part of the required
contract work and delayed actual contract work, the entire period of December through
March there was "concurrent delay" of the contract work by MULE, i.e., it did not possess
the capability itself or necessary subcontractor for performance of the contract work
required. While MULE retained a metal building and concrete subcontractor the first
week of April, no significant work on site commenced by that subcontractor until early
June due to no action by the Army. Since MULE has not presented an analysis of or clear
apportionment of the delay and expense attributable to each party here, it is barred from
any recovery and we deny these two claims. E.g., William F. Klingensmith, Inc. v. United
States, 731F.2d805, 809 (Fed. Cir. 1987); Versar, Inc., ASBCA No. 56857 etal., 12-1
BCA ~ 35,025 at 172,127.
We note in passing that it is admirable for a contractor to be concerned about
the safety of the military personnel who would be working in the building addition, but
all of the bidders here knew prior to submitting their bids that there would be a
manhole within the perimeter of the new building addition and could have inquired
about the safety of such a situation prior to award of the contract if they had serious
concerns it was inherently dangerous. We further note the Army's contemporaneous
documents show that any confusion over drawings and performance of sewer work
ended by 25 February 2015 and it was communicated to MULE on that date that it
should proceed with performance of the work as it had bid, i.e., without inclusion of
performance of the sewer work. This was reiterated to MULE several times in March
to no avail because it had no capability at that time to begin performance of the work
required.
16
ASBCA No. 60968 - Increased Cost ofDayenesi work
MULE contends that it is entitled to recover from the Army the increase in
costs it experienced as a result of retaining Dayenesi as its metal building and concrete
subcontractor. MULE asserts it obtained a quote from "PEMB" to perform metal
building and concrete work on the project, but was "forced to secure a replacement
subcontractor to perform the anticipated PEMB work" due to delay of contract work
caused by the Army. (App. hr. at 25-29)
The record in this appeal, however, shows that MULE never entered into a
subcontract with PEMB and that PEMB may not even have been in business on the
date the Army contract was awarded to MULE. Between award of the Army contract
in September 2014 and the April 2015 date MULE entered into a subcontract for the
performance of metal building and concrete work with Dayenesi, MULE was never
able to contact PEMB. Accordingly, there is no basis for us to conclude that MULE
ever possessed a subcontractor to perform metal building and concrete work at time of
award of the contract or shortly thereafter. Based on the record, the Board can only
conclude that MULE was madly scrambling to find a metal building and concrete
subcontractor when the NTP was issued by the CO and that such efforts continued
through 4 April 2015.
MULE entered its first and only subcontract for metal building and concrete
work with Dayenesi on 5 April 2015. The prices set forth in that contract were agreed
upon by MULE and Dayenesi. MULE has not alleged nor shown that there was any
act by the Army delaying Dayenesi's performance of its subcontract work. Thus, there
is no basis for finding that the Army was responsible for the higher prices charged by
Dayenesi to perform contract work.
MULE failed to procure a subcontractor to perform metal building and concrete
work prior to issuance of the NTP and did not do so until approximately six months
after contract award. It is well established a contractor is responsible for "ensuring
that the labor, materials, and equipment necessary for timely delivery are available to
it." E.g., Sach Sinha & Associates, Inc., ASBCA No. 46916, 96-2 BCA ~ 28,346 at
141,563. "If a contractor fails to so ensure, it must suffer any consequences arising
from that failure." Id. (citing B&H Constr. Co., ASBCA Nos. 24558, 24587, 80-2
BCA ~ 14,568 at 71,841). Accordingly, we also deny MULE's appeal seeking the
difference between the cost MULE says it set forth for such work in its bid during
fall 2014 and the cost it subsequently agreed to pay for that work when it actually
entered into a subcontract with Dayenesi in April 2015 for the work.
17
ASBCA No. 60970 - Comer Column
MULE contends that it is entitled "to its costs arising from ... placing a 'faux
column' at the northeast comer of Building 7902." MULE asserts that the column
"was necessary for attachment of the exterior skin of Building 7902," but was not
shown on the contract drawings. (App. br. at 30-31)
As found above, no column appears in the northeast comer of the "foundation
plan" for the building addition because the column did not require installation of a
concrete footer or pedestal as part of foundation work. A column, however, appears in
the northeast comer of the "Roof Framing Plan," sheet 20 of the drawings, as MULE's
project superintendent and the Army's architect testified at trial. Further, the drawings
submitted by Dayenesi, the metal building subcontractor, and reviewed by both MULE
and the Army, contain a drawing similar to sheet 20 with horizontal hash marks that
are similar in appearance to a horizontal "H" depicting the addition of a column in the
northeast comer and the anchor bolt plan submitted to the Army during July 2015 by
MULE and Dayenesi showed installation of a column in the northeast comer of the
building that was to "be mounted directly to existing slab" with installation of "[n]o
curb or pedestal." Dayenesi and MULE, therefore, also both contemporaneously
construed the contract as requiring installation of a column in the northeast comer.
In sum, MULE's contract expressly required the installation of a column in the
northeast comer of the building addition. Accordingly, installation of a column at that
location could not constitute a constructive change to the parties' contract, as asserted
by MULE.
In her final decision, the Army CO granted "in part" MULE' s claim for an
equitable adjustment concerning installation of the northeast comer column based on
lack of a column on the Foundation Plan. At trial and in its legal briefs, the Army
asserts the CO did so in error. MULE asserts, however, in its post-trial briefthat
"binding action has been taken within the scope of the CO's authority" and "[h]igher
authority ... cannot reverse the statements and actions of the [CO]." (App. br. at 32-34)
As the United States Court of Appeals for the Federal Circuit explained en bane in
Wilner v. United States, 24 F.3d 1397 (Fed. Cir. 1994), however, the Contract Disputes
Act makes "it clear that when suit is brought following a [CO's] decision, the findings
of fact in that decision are not binding upon the parties and are not entitled to any
deference." In sum, on appeal, the contractor has the burden of proving both the
fundamental facts of liability and damages de nova.
Id. at 1401-02. The CO's
determination granting in part MULE's equitable adjustment claim for installation of
the northeast comer column, therefore, is not binding upon this Board. Rather, MULE
was required to show at trial before the Board fundamental facts supporting liability
with respect to its northeast comer column equitable adjustment claim.
18
MULE has failed to show facts here supporting its claimed entitlement to an
equitable adjustment for installation of the northeast comer column. We therefore
deny MULE's appeal seeking an equitable adjustment for installation of that column.
ASBCA No. 60971 -Accommodation of Return Air Duct on Munters Dehumidifier
MULE contends that it ordered the Munters dehumidifier unit depicted on the
contract plans, but when the unit arrived, "the return air duct was on the wrong side"
(R4, tab 297). According to MULE, "[ u]pon receipt [of the Munters] Unit, it became
obvious that the discharge return air duct was located on the right side of the Unit and
the area into which the specified model was to be installed could not accommodate a
return air duct on that side." MULE asserts it is entitled to an equitable adjustment in
its contract price because a "differing air duct [on the Munters dehumidifier unit]
caused changing of the openings within the metal building as well as [the furnishing
of] additional concrete needed to [enlarge the pad and] move the unit to the correct
opening." (App. br. at 35; R4, tab 152 at 2-3)
As found above, the Munters dehumidifier unit model set forth in MULE's
submittal approved by the Army, the Munters dehumidifier unit model MULE actually
ordered, and the Munters dehumidifier unit model received by MULE in October of
2015 all had the same exterior configuration - return air duct on the right or eastern
side, which was the unit configuration on the contract's Mechanical Plan. Metal
building shop drawings prepared by Dayenesi three months after the dehumidifier
submittal, however, appear to have relied on the configuration of the unit set forth in
the Floor and Roof Plans with the return air duct on the left or western side. The
problem that arose after unit arrival, therefore, was not that an incorrect unit had been
ordered or delivered. Rather, it was that in designing the metal building, Dayenesi was
relying on a configuration different than that ordered by MULE, i.e., the configuration
set forth in the Floor and Roof Plans, which was the opposite of the configuration set
forth in the contract's Mechanical Plan.
As MULE's CEO testified during trial, the units with the right side air duct
configuration and left side air duct configuration do not look anything alike and thus
there was a "big time" glaring difference between the Mechanical Plan and the Roof
and Floor plans. It is well established, "[ w ]hen two parts of a contract say very
different things, as here, a patent ambiguity exists." Merritt-Meridian Constr. Corp.,
ASBCA No. 48289, 96-2 BCA ~ 28,348 at 141,568 (citing Newsom v. United States,
676 F.2d 647, 650-51 (Ct. Cl. 1982)). While MULE would now like to resolve the
internal contract conflict by ignoring the Mechanical Plan with a right side air duct,
bidders are not free to supply their own conflict resolution. Rather, they have an
affirmative obligation to make appropriate inquiries to obtain a clarification from the
government. MULE did not fulfill that obligation. The fact there were two
subcontract trades involved here (Terrell/HYAC and Dayenesi/Metal Building) is
immaterial in view of the obligation of the general contractor (MULE) to coordinate
19
the contract requirements. It is the obligation of the prime contractor to coordinate
various parts of the contract work to guarantee that all required contract work is
properly performed. Id.; Ok/and Constr. Co., ASBCA No. 43986, 93-2 BCA, 25,867
at 128,698.
MULE had to show at trial facts demonstrating Army liability for work to
accommodate a Munters dehumidifier unit with right side return air duct. MULE
failed to demonstrate any such facts. We therefore deny MULE's appeal seeking an
equitable adjustment for work to accommodate a Munters dehumidifier unit with a
right side return air duct.
ASBCA No. 60972 - Delay in Approving Munters Dehumidifier Submittal
MULE contends that the Army delayed it three months by taking three and a
half months to approve its Munters dehumidifier unit submittal. MULE appears to
assert that commencement of work on the Munters dehumidifier unit was pushed into
December due to delayed receipt of the unit resulting from delayed approval of the
submittal. (App. br. at 37; R4, tab 8 at 2, tab 283)
As found above, however, when the Munters dehumidifier arrived on site on
25 October 2015, metal building work was less than 50% complete. MULE could not
begin installation of the Munters unit in October due to lack of a completed roof, no
building side panels, and no concrete pad for the unit. While the Munters unit arrived
in October, Terrell did not begin actual installation of duct work for the Munters unit
until 12 January 2016, the date that Dayenesi/MBM completed installation of metal
building side panels.
MULE's contract did not require completion of documentation regarding the
project's critical path. Based upon our analysis of the daily reports, progress schedules
and other record documentation, however, Munters unit installation does not appear to
have been on the project's critical path until sometime in January 2016. In sum, after
arrival of the Munters unit in October 2015, it sat for two months without significant
installation work because MULE was not ready or capable of commencing installation
of that unit. Any delay in the October arrival of the unit, therefore, does not appear to
have had any impact on the critical path of the project and caused no delay in overall
completion of the project.
To establish a claim of government-caused delay, a contractor must show that
there was a delay "proximately caused" by the government which "harmed" it and the
"extent" of that delay. Such a demonstration requires a contractor to prove that the
delay alleged occurred on the contract work's "critical path," i.e., affected overall
contract completion. Kinetic Builder's Inc. v. Peters, 226 F.3d 1307, 1313 (Fed. Cir.
2000);
Wilner, 24 F.3d at 1397 n.5, 1401; Kato Corp., ASBCA No. 51462, 06-2 BCA
, 33,293 at 165,086; Gassman Corp., ASBCA Nos. 44975, 44976, 00-1BCA,30,720
20
at 151,738. As the Board explained in Precision Dynamics, Inc., ASBCA No. 50519,
05-2 BCA ~ 33,071 at 163,920:
It is not sufficient.. .for a contractor to show that the
Government delayed completion of a segment of the work.
Rather, in order for the contractor to recover, it must
establish that completion of the entire project was delayed
by reason of the delay to the segment.
MULE had to show at trial that any government-caused delay to delivery of the
Munters unit was on the contract work's critical path and affected overall completion
of contract work. MULE failed to make such a demonstration. Accordingly, we deny
MULE's appeal with respect to Army delay in approval of the Munters unit submittal.
ASBCA No. 60973 - Equitable Adjustment for Extra Concrete Curb
MULE contends that "[ n]othing in the contract drawings gave MULE any
indication of the [height] of the concrete curb - other than the reference that 6 inches
would be typical." MULE asserts that, "[i]n order to meet the demands of the contract
drawings, [it] was required to place additional concrete in order that the new curb
might approximate the 35.10 feet typical elevation" and is entitled to an equitable
adjustment for such work. (App. br. at 38-41)
As found above, the contract drawings set forth grades above a fixed point
indicating that the ground sloped, i.e. decreased in elevation from the southwest comer
of the building to the southeast comer of the building and from the northeast comer of
the building to the southeast comer of the building. Moreover, the contract drawings
(sheets 11, 12 and 14) expressly state "EXIST. GRADE VARIES" and "DISTANCE
FROM TOP OF CURB TO EXTERIOR CONCRETE VARIES," depict the curb as a
straight line that accounts for the changes in elevation, and indicate the top of curb is
typically 3 5.10 feet above the same fixed point used to measure the grade. Similarly,
the metal building shop drawings submitted to the Army by Dayenesi (E5 through E8)
depict a finished curb height of 35.1 feet above the fixed point with none indicating a
uniform six inch curb height. Having a curb height 35.10 feet above the fixed point
was of great significance because the curb constituted the point at which the metal
building wall panels joined or intersected with the ground.
Dayenesi's concrete subcontractor ignored the elevations set forth on the
drawing, warnings that existing grade varies, and drawing depictions of the curb as a
straight line accounting for changes in elevation with top of curb typically 35.10 feet
above the fixed point used to measure grade. It poured concrete for a uniform curb
height of six inches during August 2015, which would result in there being space
between the bottom of metal building panels and the curb, an unacceptable result for
Dayenesi's metal building subcontractor.
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After Dayenesi's metal building subcontractor told MULE's superintendent that
the curb was not high enough for the metal building, the concrete subcontractor was
told to return to the site to pour sufficient concrete to account for the change in slope
or elevation and did so. While MULE presented testimony from its CEO that it was to
pour no more than a 12 inch curb (tr. 1/158), but poured as much as 18 inches of curb,
the Army presented photographic evidence that the completed curb at no point
exceeded 12 inches in height.
We cannot find testimony that as much as 18 inches of curb was poured to be
credible when there is photographic evidence of the curb not exceeding 12 inches.
MULE therefore has not shown that it was required to pour more concrete than was
required by its contract, which its CEO testified could be as much as a 12 inch curb.
To the extent other language existed on the contract drawings suggesting the
curb was to be a uniform height of six inches, as MULE asserts in its brief, any such
language expressly contradicted the language and depictions set forth on the drawings
and discussed above stating top of curve was to be 3 5.10 feet above the fixed point
that had been used to measure grade. As discussed above, "[w ]hen two parts of a
contract say very different things, as here, a patent ambiguity exists." MULE did not
inquire about the curb height prior to bidding and therefore cannot now supply its own
resolution of the conflicting language as mandating only a uniform six-inch high curb.
Its metal building subcontractor understood the drawing requirements for the curb, as
evidenced by the plans it submitted for the metal building, and it was the obligation of
MULE to coordinate with the concrete subcontractor to ensure the required contract
work was properly performed. Newsom, 676 F .2d at 650-51; Merritt-Meridian, 96-2
BCA ~ 28,348 at 141,568; Okland Constr., 93-2 BCA ~ 25,867 at 128,698.
In her final decision, the Army CO granted "in part" MULE' s claim for an
equitable adjustment with respect to additional concrete curb stating:
There was one note stated incorrectly in the drawing
referencing a 6" curb, however there were 6-8 notes
throughout the drawings indicating a level curb with an
elevation of 3 5.10' and another note indicating the height
from the top of the curb to grade varies. It is the
Government's belief that this item should be a shared cost.
At trial and in its legal briefs, the Army asserts the CO acted erroneously in granting
this claim in part. While MULE again asserts in its post-trial brief that binding action
has been taken within the scope of the CO's authority and this Board cannot reverse
actions of the CO (app. br. at 41-42), as we discussed above, when an appeal is filed
following a CO' s final decision, the findings of fact in that decision are not binding
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and are not entitled to any deference. In sum, on appeal, the contractor has the burden
of proving the fundamental facts ofliability de novo. Wilner, 24 F.3d at 1401-02.
MULE did not set forth facts in the record here establishing Army liability for
extra concrete curb work. This Board, therefore, denies MULE's appeal seeking an
equitable adjustment for the additional concrete added to the initial curb pour.
ASBCA No. 60976 - Equitable Adjustment for Installing Coiling Door
MULE contends that, on its overhead coiling door submittal, it asked the Army
whether the header height should be measured from the base or curb elevation and the
Army responded that the header is to be located "16' O" from top of curb." MULE
asserts that "[t]he net result was that the vertical opening for the overhead coiling door
was significantly in excess of the 16 x 33 door" and it was forced to drop the header in
order to meet the requirements of the drawings and specifications, entitling it to an
equitable adjustment for the cost of that work. (App. hr. at 44-46)
As found above, the Army's response to MULE's inquiry regarding the
overhead coiling door was not limited to the few words MULE cites. The Army
further told MULE:
Note: Actual door height may vary depending on mfr.
selected. Mfr. installation details relative to curb location
will determine finished door height.
(R4, tab 44 at 9) Moreover, section 3.01 of the specification expressly stated with
respect to coiling doors that the contractor, MULE, was to "[v ]erify that opening sizes,
tolerances and conditions are acceptable." Thus, the contract specification placed the
burden of verifying opening sizes and conditions on the contractor (MULE), not on the
Army, and the Army's response to the question set forth on MULE's coiling door
submittal made clear that the door manufacturer's installation details relative to curb
location would determine the finished door height. MULE was free to select any
manufacturer of coiling doors it desired and the Army had no knowledge of which
door manufacturer MULE actually intended to use. Different overhead coiling door
manufacturers have differing installation requirements. The onus was on MULE to
coordinate with its overhead door subcontractor and determine the finished height for
the coiling door. The Army's response to MULE's submittal question did not relieve
MULE of this legal obligation.
A contractor seeking an equitable adjustment has the burden of proving the
fundamental facts of liability. E.g., Wilner, 24 F.3d at 1401-02. MULE did not set
forth facts in the record here establishing Army liability for additional work to drop the
header from the height MULE initially installed that header. Accordingly, the Board
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also denies MULE's appeal seeking an equitable adjustment for installation of the
overhead coiling door.
CONCLUSION
We deny all eight of the appeals.
Dated: 20 April 2017
TERRENCE S. HARTMAN
Administrative Judge
Armed Services Board
of Contract Appeals
I certify that the foregoing is a true copy of the Opinion and Decision of the
Armed Services Board of Contract Appeals in ASBCA Nos. 60854, 60967, 60968,
60970, 60971, 60972, 60973, 60976, Appeals of MULE Engineering, Inc., rendered in
conformance with the Board's Charter.
Dated:
JEFFREY D. GARDIN
Recorder, Armed Services
Board of Contract Appeals
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