GSC Construction, Inc. ( 2020 )

ARMED SERVICES BOARD OF CONTRACT APPEALS
Appeal of -- )
)
GSC Construction, Inc. ) ASBCA No. 61380
)
Under Contract No. W912HN-10-D-0049 )
Task Order 0007 )
APPEARANCE FOR THE APPELLANT: Mr. George L. McKnight
President
APPEARANCES FOR THE GOVERNMENT: Michael P. Goodman, Esq.
Engineer Chief Trial Attorney
Laura J. Arnett, Esq.
Engineer Trial Attorney
U.S. Army Engineer District, Savannah
OPINION BY ADMINISTRATIVE JUDGE MCNULTY
Before us is the government’s motion for summary judgment. We partially
grant the motion.
STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION
1. On September 25, 2012, the U.S. Army Engineer District Savannah
(government) issued Task Order (TO) 0007 to GSC Construction, Inc. (GSC or
appellant) under an indefinite-delivery, indefinite-quantity multiple award task order
contract (MATOC), Contract No. W912HN-10-D-0049 for the design and renovation
of an Army Ranger barracks building, Building 2833, located at Fort Benning, Georgia.
The task order included options relating to design and renovation services for Building
2834 as well. The barracks buildings are also referred to as the “Rip Rope” buildings.
The task order established a 540 calendar day period of performance measured from the
date of receipt of Notice to Proceed (NTP). (R4, tab 6 at 1-5)
2. GSC acknowledged receiving the NTP on November 21, 2012, thereby
establishing the task order’s completion date as May 15, 2014 (R4, tab 2 at 2, 7).
3. Under date of January 25, 2013, the government requested a proposal (RFP)
for additional work due to design changes at Building 2833 (R4, tab 8 at 1). GSC’s
proposal submitted in response to the RFP included two fragnet schedules setting forth
the anticipated impact on the project’s schedule if the government went ahead with the
additional work (id. at 20-21). GSC’s proposal in the total amount of $59,781.11,
included a request that 22 days be added to the schedule with a cost of $18,999.42 for
the additional time of performance required, i.e., extended overhead 1 (id. at 6).
4. The government accepted GSC’s proposal and issued Modification No. 1A
to the TO in the amount of $59,781.11, but rather than the 22 days requested, granted
30 days of time extension. The modification expressly states that it is for all costs
directly or indirectly attributable to the changes and delays related thereto including
extended overhead (R4, tab 8 at 25-27). In this regard the modification stated:
It is understood and agreed that pursuant to the above, the
contract time is extended the number of calendar days
stated, and the contract price is increased as indicated
above, which reflects all credits due the Government and
all debits due the Contractor. It is further understood and
agreed that this adjustment constitutes compensation in full
on behalf of the Contractor and its Subcontractors and
Suppliers for all costs and markups directly or indirectly
attributable for the change ordered, for all delays related
thereto, for all extended overhead costs, and for
performance of the change within the time frame stated.
(Id. at 26-27) GSC signed the modification on February 22, 2013 (id. at 25). The
government’s Price Negotiation Memorandum (PNM) states that the basis for the time
extension was that design was delayed 30 calendar days by the government’s failure to
provide as-built drawings to GSC in a timely manner (id. at 23). Modification No. 1A
extended the contract completion date to June 14, 2014 (id. at 26).
5. By letter dated May 9, 2013, GSC submitted a letter regarding the
progressive collapse requirements of the contract. GSC stated the as-built drawings
had not been made available until sometime after contract award. This had caused a
delay to the design work, which had been addressed in a modification to the contract.
(R4, tab 17 at 1) GSC also stated that without the as-built drawings its bid price had
been based on a proposal it had received from Fibrwrap Construction, which had relied
on its prior experience with Buildings 2752 and 2754 to prepare the proposal. GSC
continued, stating they had discovered that much more work was required in the Rip
Rope buildings than had been required for Buildings 2752 and 2754. (Id.) GSC stated
it hoped the progressive collapse requirement would be withdrawn from the contract,
which would result in a credit to the government, otherwise, GSC would submit a
1 The proposal indicates GSC added Overhead (10%, $1,899.94), Profit (7%, $1,329.96)
and Bond premium (1%, $189.99) to its proposed costs (id. at 6). Accordingly,
with respect to the extended overhead GSC was seeking, and ultimately received,
$22,419.31 ($18, 999.42 + $1,899.94 + $1,329.96 + $189.99) (SOF ¶ 4).
2
request for equitable adjustment (REA) of approximately $200,000 for building 2833
alone (id. at 2).
6. GSC reiterated that it had received a modification for the delay associated
with the government’s election to not provide the Rip Rope buildings as-built
drawings until several months after contract award in its claim submitted May 29,
2013 (id. at 15). Its claim sought costs associated with the additional reinforcement
required in Building 2833. The claim did not seek any additional time or any time or
costs for work in Building 2834. (Id. at 15-16)
7. By letter dated July 29, 2013, GSC notified the government it had
encountered what it considered to be differing site conditions (DSC). The letter
indicated the concrete slabs for Building 2833’s floors were out of plumb with each
other and that the slabs exceeded the flatness tolerance set forth in the contract. (R4,
tab 22 at 1) GSC included a cost proposal, totaling $158,921.72 for the two DSC. The
cost proposal indicated that 2,400 bags of floor leveling compound was needed to
correct the slab flatness issue. The cost proposal also indicated that a 25-day time
extension was needed to perform the required corrective work. (Id. at 2)
8. The government exercised options 1-3 and added the work to TO 007 by
Modification No. 02, effective August 13, 2013 (R4, tab 10 at 1). The modification
added 175 calendar days to the task order performance period, extending it to
December 6, 2014 (id. at 2-3). Although the modification was unilateral, GSC does
not dispute that the contract completion date was revised to December 6, 2014, by
Modification No. 02 (gov’t mot. at 2; app. opp’n at 2).
9. Under date of August 14, 2013, the government sent GSC a RFP for
removing and replacing a sanitary line and for the work related to alter the metal stud
framing to account for the edges of each slab being out of plumb (R4, tab 23 at 1, 3).
GSC submitted a proposal totaling $87,627.67 and requested a 15-day time extension
in response to the RFP (id. at 5). The proposal included furring out all slab edges to
make them plumb in the amount of $25,141.00 before markups (id.). GSC also
submitted a fragnet schedule to support its request for a 15-day time extension (id.
at 13-14). The parties agreed to a no time change order in the amount of $73,637.52
for the work, which was added to the TO by Modification No. 1C (id. at 16-17).
10. By letter dated September 26, 2013, the government requested a proposal
from GSC for the additional reinforcing work relating to the progressive collapse
requirements for both of the Rip Rope buildings (R4, tab 24 at 1-3). GSC’s proposal
in the total amount of $499,931.60 included $81,530.50 before markups for leveling
the floor slabs, which was based on 1,304 bags of leveling compound (id. at 5, 20).
During the negotiations of the modification relating to this work, GSC, at the
government’s request, agreed to remove the costs associated with the floor leveling
3
(id. at 31-32). Bilateral Modification No. 04 was executed by the parties on May 15,
2014, for the additional work associated with the additional reinforcing required to
comply with the progressive collapse requirement (id. at 34). The government’s PNM
indicates the floor leveling work associated with Modification No. 04 was required
due to the increased amount of fiberwrap applied to the slabs to satisfy the progressive
collapse requirements. (id. at 30-31).
11. By letter dated February 10, 2015, the contracting officer notified GSC that
it had failed to complete the project by the contract’s completion date and that the
government would assess liquidated damages in the amount of $1,029.64 per calendar
day assessed retroactively from February 5, 2015, until the buildings were turned over 2
(R4, tab 34). The government conducted the final inspection of building 2834 and
granted occupancy to the user on June 19, 2015 (R4, tab 19 at 879).3
12. By letter dated March 3, 2015, the government requested a proposal for
changes to the fire alarm system. GSC submitted a proposal in the amount of
$8,393.90 with a 70 calendar day time extension in response. (R4, tab 25 at 1, 5) The
government issued Modification No. 1G in the amount of $8,393.90 as proposed by
GSC on March 6, 2015 (id. at 14). The modification was issued unilaterally because
the parties could not agree on the time required to perform the additional work (id.
at 11-13). The modification was issued with the understanding that the issue of time
would be revisited (id. at 15-16). Subsequently, the government issued Modification
No. 1H granting a 10-day non-compensatory time extension for the changes to the fire
alarm system (R4, tab 26). This modification was also issued unilaterally. GSC
declined to sign it and indicated it would provide “a more formal response later in the
week” (id. at 3). The record includes a response to a request from the government
made in January 2018 for GSC’s delay analysis relating to the fire alarm changes (R4,
tab 16). The response, signed by Mr. Jay Grant from GSC discussed the attached
schedules, which Mr. Grant asserts demonstrates that the fire alarm system changes
had an impact of 71 calendar days to the overall schedule (id. at 25-39). A comparison
of the two schedules, found at 26-32 and 33-39 of tab 16 indicates that an activity
identified as “1G” and named “Fire Alarm Changes” has been added to the amended
2 Building 2833 had been made available for the government’s use on November 18,
2014, despite the HVAC system not operating properly (R4, tab 19 at 672).
The contract does not have separate completion dates for the buildings, a single
completion date encompasses both buildings (R4, tab 6 at 5, tab 10).
3 In its motion the government asserts it is undisputed the warranty period commenced
on June 19, 2015 (gov’t mot. at 23). GSC disputed this in its response,
asserting Building 2834 was substantially complete in May and that the
government occupied the building on May 11, 2015 (app. opp’n at 12). The
government has admitted the project was substantially completed on May 8,
2015, for purposes of the motion (gov’t reply at 15).
4
schedule. The activity is depicted as extending from early March to mid-May. No
further explanation was provided.
13. On March 5, 2016, a two-inch water line came apart. Building 2834 was
flooded with four inches of water in the basement. The base maintenance contractor
responded to the flood and also noted that a six-inch water main on the first floor was
leaking badly and contributed to the flooding. (R4, tab 29) The repairs were
completed on March 10, 2016 (id. at 2).
14. On March 31, 2016, another leak occurred in Building 2834 and GSC was
asked to make the necessary repairs. GSC, through a subcontractor, repaired this leak
on April 2, 2016. On April 3, 2016, the repair failed and the basement was flooded
with six feet of water and other areas of the building were flooded with as much as two
feet of water. GSC was again directed by the government to make the necessary
repairs under the warranty it had provided. (R4, tab 30)
15. By letter dated April 11, 2016, GSC advised the government that it was
continuing to assess the cause of the leaking and that it was working to assure the
government received fully functional items. GSC indicated that its insurance company
was involved in reviewing the situation. (R4, tab 32)
16. In July 2016, GSC’s insurance company, BITCO, issued a check in the
amount of $110,000 to GSC as an advance payment for certain repairs relating to the
flooding. The check was issued as an accommodation and BITCO reserved all of its
rights, including the right to seek reimbursement of the payment. (R4, tab 33)
17. Under date of July 26, 2017, GSC submitted a certified claim to the
contracting officer for final decision (R4, tab 14). The claim included seven “Issues”
totaling $1,339,954.11 as follows:
1) Delay in start of Bldg. 2834 due to a failure to provide
as-built drawings for existing 2833 Building that was
outside the power of GSC. GSC requested a thirty (30)
calendar day time extension and $20,519.37 in extended
overhead by letter dated January 11, 2013.4
4 GSC appears to have misstated the date of the letter. The letter enclosed with the
claim in the record is dated January 31, 2013 (R4, tab 14 at 4). The letter
includes a cost proposal showing how the cost claimed was calculated and two
fragnets supporting the 30 days claimed (id. at 5, 7-8). The fragnets are
identical to the fragnets submitted by GSC to support the request for an
equitable adjustment that was paid in Modification No. 1A (Cf. R4, tab 14
at 7-8, tab 8 at 20-21).
5
2) Audio Visual Changes. GSC was directed by the user to
make changes to the audio visual components of 2834 in
order for 2834 to be accepted. These changes were outside
GSC’s scope. For these changes, GSC requests a
$29,689.25 change order per the attached cost breakdown
from Net Planner and a 21 calendar day time extension
with extended overhead.
3) Testing outside GSC’s scope. GSC requests a
$632,995.61 change order for GSC having to maintain and
perform testing not required by its contract. This cost is
substantiated by the partial judgement award, Judge Proper
January 18, 2016, to GSC for completing HVAC system
once DYNAMIC was unable to complete. This unduly
imposed requirement caused substantial hardship to GSC
and its subcontractors. The HVAC contractor abandoned
the project and ceased doing business in Georgia as a
direct result. Attached is an uncollectable judgment
against the project’s mechanical contractor justifying the
change order amount. GSC had to complete the project
acquiring outside forces as no others would take the job
due to excessive and previously unknown requirements.
GSC was further burdened by the 120 days these
requirements added to project completion. GSC is entitled
to a change order because its losses caused by the testing
requirements were outside its control and unknown at the
time GSC entered into its contract.
4) Existing concrete pads were out over 1” level contrary
to expected building standards. This unforeseen condition
forced GSC to install an additional 2400 bags of Ardex at a
spread rate of 25 sf per bag. GSC requests a change order
for $158,921.72 per GSC letter dated July 29, 2013.
5) COE issued unilateral 1G “Fire Alarm Changes.” GSC
request a 70 day time extension with overhead as requested
by GSC backup dated March 4, 2015. The unilateral was
ambiguous but COE took position that it required GSC to
meet all base requirements for life safety. This resulted in
confusion loss of efficiency and additional delays to the
6
project. Please see attached change order. GSC requests a
change order for 70 day time with extended overhead.[5]
6) Basement Flood. GSC was directed to repair a leak to
2834’s hot water heater. GSC also repaired damages
caused by the leak at the user’s direction, even though the
leak was not GSC’s fault, there were damages from
previous leaks, and the project exceeded the warranty
period. GSC requests to be reimbursed for the expenses
incurred in repairing the leak, including its increase
insurance premium. Please see attached cost breakdown
estimate including premium increase for damages totaling
$394,750.68.[6]
7) GSC is requesting payment of outstanding balance of
original contract construction costs in the amount of
$103,077.48. At our expense GSC allowed beneficial
occupancy of 2833 well before the completion date. This
resulted in GSC having to maintain 2833 until 2834 was
occupied by COE.
(R4, tab 14 at 1-2) The amount claimed for Issue (4) included costs for work
associated with both leveling the floor slabs and installing furring along the slab edge
(id. at 18). The pricing, in the amount of $5,506.00, for the furring work was obtained
from Center Brothers, Inc. via an email dated July 26, 2013 (id. at 26). Center
Brothers, Inc. subsequently revised the pricing and incorporated it into the price that
GSC submitted as part of the backup for its REA that resulted in Modification No. 1C
(R4, tab 23 at 11; see also SOF ¶ 9).
18. As part of its support of its claim GSC submitted a copy of a judgment in
the amount of $632,995.61, plus costs and attorney’s fees it had received in the
Superior Court of Richmond County, Georgia against its subcontractor, Chris Leiser
5 The claim stated no dollar amount for the extended overhead sought.
6 This claim Issue was supported with a “Cost Estimate Analysis” breakdown, which
included a lump sum for the flood repairs in the amount of $303,740.23 and
$22,500 for the insurance premium increase before markups of 10% each for
overhead and profit and 1% for additional bond premium (R4, tab 14 at 33).
We find the total amount claimed for the increase in insurance premium
element with the markups as claimed is $27,497.25. Although there were
multiple leak incidents between March and April 2016 appellant’s claim does
not segregate the costs by incident. (SOF ¶¶ 13-14; R4, tab 14 at 33-34)
7
d/b/a Dynamix Mechanical 7 (id. at 12-13). The record includes a copy of the
complaint filed by GSC against Dynamix, which pleads Dynamix breached the
subcontract by abandoning performance prior to its completion, requiring GSC to
engage a replacement subcontractor to complete the work contained within the scope
of the subcontract agreement and damaging GSC in the amount of $632,995.61 (R4,
tab 20 at 4). On August 22, 2017, the contracting officer notified GSC that a decision
on its claim would be issued by February 15, 2018 (R4, tab 15). On October 25, 2017,
appellant filed a Notice of Appeal with the Board, which was docketed as ASBCA No.
61380.
19. By letter dated February 15, 2018, the contracting officer partially found
merit and partially denied the claim as synopsized below:
(1) The contracting officer denied the first issue, finding
GSC had already been compensated in the form of a
30-day time extension and payment of $20,519.37 via
Modification No. 1A 8 (R4, tab 2 at 3-5; SOF ¶¶ 3, 4).
(2) The contracting officer found the second issue had some
merit, finding GSC was entitled to compensation for additional
direct costs it had incurred and a non-compensable 21 calendar
day time extension (R4, tab 2 at 5-7).
(3) The contracting officer denied the third issue, finding
the costs claimed, duplicated the amount of a judgment
GSC had received in a lawsuit against its subcontractor,
DYNAMIC, for having failed to perform work that GSC
had pleaded in its complaint against the subcontractor was
“within the scope of the subcontract” and that GSC had
provided no explanation for how the government should
and could be responsible for the subcontractor’s default
(id. at 7-9).
7 The record includes references to a GSC subcontractor named DYNAMIC as well.
Based on GSC’s assertions in its claim we find that Dynamix Mechanical and
DYNAMIC are one and the same.
8 The record indicates GSC was actually paid $22,419.31 for extended overhead by
Modification No. 1A (SOF ¶¶ 3-4). We find the contracting officer conflated
the amount paid in Modification No. 1A with the amount claimed in 2017,
which deleted 10% for overhead, which had been claimed and paid in 2013.
(Id.; R4, tab 14 at 5)
8
(4) The contracting officer denied this issue as well (id.
at 9-12). First, the contracting officer found that the
furring along the slab edge work had been paid for under
Modification No. 1C., and with respect to the floor
leveling work, found that this work had been paid for
under Modification No. 04. (Id. at 11-12; see also SOF
¶ 10) The contracting officer stated that GSC had failed to
provide any evidence that the work being claimed for
differed from the work that had been paid for previously
under the two modifications (id.).
(5) The contracting officer denied this issue also. The
contracting officer noted that 10 calendar days had been
granted for the fire alarm changes under unilateral
Modification No. 1H. The contracting officer found that
the fragnet submitted in support of the claim showed the
fire alarm work would not be finished until the middle of
May 2015 but that GSC’s own QCR’s (Quality Control
Report) showed the work was completed no later than
March 20, 2015.9 The contracting officer also found that
the claim failed to take into account the 10 calendar day
time extension that had been granted under Modification
No. 1H. (Id. at 12-15)
(6) The contracting officer denied this issue, finding GSC’s
poor workmanship was the root cause of the flooding.
Additionally, the contracting officer found GSC had
submitted no backup to support the claimed insurance
premium increase. (Id. at 16-22)
(7) The contracting officer denied this issue finding the
government was entitled to $127,675.36 due to GSC’s late
finish. The contracting officer found this amount should be
reduced by $21,622.44 to account for the 21 day time
extension the contracting officer found was due GSC for the
audiovisual changes, claim sub-item (2), but that even with
this reduction the amount of liquidated damages due the
government ($106,052.92) exceeded the unpaid contract
price balance. (Id. at 22-24)
9 The record includes the Quality Control Reports relied on by the contracting officer
(R4, tab 18).
9
20. In its complaint GSC reiterated the same seven issues set out in its claim
and sought relief totaling $1,339,954.11, exactly matching the amount claimed (compl.
¶¶ 18, 29; SOF ¶ 18).
21. In its response to the government’s motion for summary judgment, GSC
withdrew its claim for insurance premium increases, which was part of Issue 6 (app.
opp’n at 14; SOF ¶ 18).
22. Additionally, after the government filed its motion, GSC produced a
settlement agreement between itself and its insurance company (gov’t reply at 13,
ex. 5). The settlement agreement establishes that GSC received $310,000 from its
insurance company as a loan for payment of the repairs required to remediate the
damage caused due to the flooding in building 2834 (gov’t reply, ex. 5). Pursuant to
the terms of the settlement agreement GSC is not obligated to repay the loan unless
and to the extent GSC recovers from Roto-Rooter or any other third person (gov’t
reply, ex. 5 at 3).
CONTENTIONS OF THE PARTIES
The government argues appellant has been compensated for much of its claim
through bilateral modifications to the contract and thus the claim items paid for
through the modifications are barred by accord and satisfaction. This argument is
made with respect to Claim Item Nos. 1, 4, 5 (gov’t mot. at 30, 34, 37). The
government argues appellant has failed to state a claim for which relief may be granted
with respect to Issue 3 (id. at 32). With respect to Issue 6, the government argues
appellant caused the flooding, which necessitated the repairs appellant asserts are
additional work and that in any event appellant has been compensated by its insurance
company for the repair costs appellant incurred (id. at 40). The government argues it
is entitled to summary judgment with respect to the claim for the contract balance
because appellant owes the government liquidated damages that exceed the contract
balance (id. at 42). With respect to Issue 2, the government acknowledges the claim is
partially meritorious (id. at 32).
Appellant opposes the motion, arguing there are material facts in dispute.
Appellant argues responsibility for the flooding in Building 2834 is disputed.
Appellant also argues that whether the modifications fully resolved the flooring and
drawing issues is disputed, as well as the issue of whether appellant is entitled to
additional time for the added fire alarm work. Appellant further argues there is a
dispute with respect to whether the government is liable for increased costs related to
enhance commissioning (app. opp’n at 23-25).
10
DECISION
GSC’s withdrawal of the part of its claim, included in Issue 6, relating to the
insurance premium increases, deprives the Board of jurisdiction to consider this part of
the appeal further (SOF ¶ 22). This part of the appeal is dismissed as moot.
Sygnetics, Inc., ASBCA No. 60357, 18-1 BCA ¶ 37,160; Advanced Powder
Solutions, Inc., ASBCA No. 61818, 19-1 BCA ¶ 37,425 at 181,897. Accordingly, we
consider the remaining issues pertaining to the government’s motion.
Summary judgment is appropriate where there is no genuine dispute as to any
material fact and the movant has made a prima facie showing with evidence that it is
entitled to judgment as a matter of law. Enzo Biochem, Inc. v. Applera Corp., 599
F.3d 1325, 1337 (Fed. Cir. 2010). See also Mingus Constructors, Inc. v. U.S., 812
F.2d 1387, 1390 (Fed. Cir. 1987); Arko Executive Services, Inc. v. U.S., 553 F.3d
1375, 1378 (Fed. Cir. 2009); FED. R. CIV. P. 56(a). A material fact is one that might
affect the outcome of an appeal. Revenge Advanced Composites, ASBCA No. 57111,
11-1 BCA ¶ 34,698 at 170,883 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986)). An issue of material fact is “genuine” if the evidence is such that a
reasonable jury could return a verdict for the non-moving party. Wavetronix v. EIS
Elec. Integrated Sys., 573 F.3d 1343, 1354 (Fed. Cir. 2009) (citing Anderson, 477
U.S. at 248). The moving party “bears the initial responsibility of informing
the . . . court of the basis for its motion, and identifying those portions of ‘the
pleadings, depositions, answers to interrogatories, and admissions on file, together
with the affidavits, if any,’ which it believes demonstrate the absence of a genuine
issue of material fact,” upon which the burden shifts to the nonmoving party to “make
a showing sufficient to establish the existence of [elements] essential to that party’s
case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v.
Catrett, 477 U.S. 317, 322-23 (1986). The nonmoving party’s failure to show an
element essential to its case on which it has the burden of proof renders all other facts
immaterial and entitles the moving party to summary judgment. Id. (citing Anderson,
477 U.S. at 250). We draw all justifiable inferences in favor of the nonmoving party.
CI², Inc., ASBCA Nos. 56257, 56337, 11-2 BCA ¶ 34,823 at 171,353 (citing
M. Maropakis Carpentry, Inc. v. U.S., 609 F.3d 1323, 1327 (Fed. Cir. 2010)). “The
party opposing summary judgment must show an evidentiary conflict on the record;
mere denials or conclusory statements are not sufficient.” Mingus Constructors,
812 F.2d at 1390-91; see also Barmag Barmer Maschinefabrik AG v. Murata
Machinery, Ltd., 731 F.2d 831, 835-36 (Fed. Cir. 1984) (“With respect to whether
there is a genuine issue, the court may not simply accept a party’s statement that a fact
is challenged”). Any fact that is not properly disputed we may consider to be
admitted. See Rules of the Armed Services Board of Contract Appeals, Rule 7(c)(2),
“The Board may accept a fact properly proposed and supported by one party as
undisputed, unless the opposing party properly responds and establishes that it is in
11
dispute.” See also Ferguson Propeller, Inc. v. U.S., 59 Fed. Cl. 51, 58 (2003)
(“Having failed to specifically dispute the Defendant’s Proposed Findings of
Uncontroverted Facts, the court deems those facts admitted . . .”); FED. R. CIV. P.
56(e)(2). Additionally, the Board has discretion to grant partial summary judgment to
resolve some, but not all, of the issues raised by the moving party. See, e.g., Arctic
Corner, Inc., ASBCA No. 33347, 92-3 BCA ¶ 25,030 (granting summary judgment
with regard to 7 of 19 claim items); Hermes Consol., Inc. D/B/A Wyoming Refining
Co., ASBCA Nos. 52308, 52309, 02-1 BCA ¶ 31,767 (granting partial summary
judgment on Count I with respect to the measure of recovery for unrecovered
termination costs and granting summary judgment on Counts II-IV).
The government asserts there are no genuine disputes as to any material facts.
For the most part, we agree with the government but disagree in a few instances as set
forth more fully below. The government’s motion sets forth a detailed statement of
facts comprising 175 separate paragraphs. Appellant admits 77 of them without
exception. 10 Appellant admits another 36 but provides additional information, which
we find fails to dispute the facts asserted and relied on, by the government. 11 The
remaining 62 are denied, but generally in ways insufficient to establish that a dispute
actually exists.
Issue 1: Delay due to lack of as-built drawings
Appellant argues there are two issues with the as-built drawings, one relating to
floor drawings, the other progressive collapse and that Modification 1A only resolved
the floor drawing issue (SUMF ¶¶ 20, 22, 28-31, 36).12 Appellant principally relies on
the deposition of John Phillips in support of its assertions in this regard. However, the
deposition transcript cited, ex. 2, is not in the record. Ex. 2 to appellant’s brief is a
series of Contractor Quality Control Reports. There is an Appendix B to the
government’s brief, which includes excerpts from Mr. Phillips’ deposition, but does
not include the pages cited by appellant. We find that appellant has failed to properly
dispute the facts asserted by the government with respect to this issue. In any event,
the record establishes that with respect to this sub-claim appellant has received all of
10 Statement of Undisputed Material Facts (SUMF) ¶¶ 1-5, 7-8, 10-16, 18-19, 21, 32,
66, 73, 75-80, 88, 90-91, 96, 98-99, 102-106, 108-109, 114-116, 118, 122-133,
136, 142-146, 150, 152, 156, 158-166, 170-171, 173, and 175 (gov’t mot.
at 1-28; app. opp’n at 1-15).
11 SUMF ¶¶ 20, 22, 24-27, 36, 67, 69, 71-72, 74, 81, 87, 89, 92-95, 97, 110, 112, 117,
119-121, 135, 138-141, 147-149, 151, 169 (gov’t mot. at 4-28; app. opp’n at 4-15).
12 Appellant’s opposition addresses each of the 175 paragraphs of facts set forth in the
government’s motion. Most of its argument is set forth in its responses to the
government’s statement of facts. Rather than cite to page numbers in
appellant’s brief, we cite the SUMF paragraph numbers.
12
the dollars and time claimed (SOF ¶¶ 3-4, 17(1), 19(1)). Appellant has failed to
dispute these facts. Furthermore, appellant has failed to explain how having received
all the time and money it claimed with respect to this part of its claim there is anything
left to possibly dispute. Accordingly, we grant the government’s motion with respect
to Issue No. 1.
Issue 2: Audio Visual Changes in Building 2834
Although the government seeks full summary judgment against the entirety of
appellant’s claim, the government’s motion includes no facts relating to this issue.
The government admits the claim is at least partially meritorious and states the
government is in the process of issuing a modification for it (gov’t mot. at 32, 43).
The government has provided no further information regarding whether it has issued a
modification for this claimed additional work and if so, whether appellant has accepted
same as full compensation for this issue. We find the government has failed to meet
its burden of proof with respect to Issue 2. Accordingly, we deny the government’s
motion as it pertains to this issue.
Issue 3: HVAC Testing
Appellant summarily denied all of the facts asserted by the government relating
to this issue, SUMF ¶¶ 38-65, asserting they were irrelevant without any further
explanation. Appellant asserted the facts relevant to this issue were provided in its
counter-statement of facts but failed to actually identify any facts, leaving the citation
blank (app. opp’n at 7). The government argues, based on documents in the record,
that appellant failed to state a claim because although appellant asserts it was required
to perform work outside the scope of the contract, appellant has provided no
documents to support the amount claimed, a default judgment against a subcontractor,
in which action appellant pleaded the subcontractor had breached its contract with
appellant by failing to perform contractually required work (gov’t mot. at 33). The
government argues both of these propositions cannot be true. We find appellant has
failed to properly dispute the facts asserted by the government, which are sufficient to
establish appellant has failed to state a claim against the government and grant the
government’s motion with respect to this issue (gov’t mot. at 33; SOF ¶¶ 17(3), 19(3)).
Issue 4: Unforeseen condition regarding levelness of concrete pads
SUMF ¶¶ 66-101 relates to this issue (gov’t mot. at 11-17). This claimed item
involves two issues, additional furring work required to bring the slabs’ edges into
vertical alignment and the installation of Ardex floor leveling compound to make the
13
slabs acceptably flat 13 (SOF ¶¶ 7, 17(4)). The government argues, it is undisputed that
both issues have been resolved by bilateral Modifications Nos. 1C and 04 (gov’t mot.
at 34-37). Appellant argues the modifications did not resolve all of the issues, but
provides little to dispute the facts asserted by the government, other than this
conclusory argument. Appellant either admits SUMF ¶¶ 66-78, which relate to the
furring issue only or adds additional information stating two issues, furring, and floor
levelness were involved or that it had not seen the government’s PNM relating to
Modification No. 1C (app. opp’n, SUMF ¶¶ 66-78). We find appellant has not
properly disputed the facts asserted by the government relating to the furring issue,
which are supported by documents in the record. Accordingly, we grant the
government’s motion with respect to the furring issue.
The flooring issue is another matter. Although not articulated very well, we
understand appellant is arguing there are two slab levelness issues. One arising from
the progressive collapse requirements due to the application of fiberwrap material to
the slabs in some locations and a general levelness issue that may be unrelated to the
use of fiberwrap. We understand appellant attempts to articulate this where it states in
response to several of the facts relied on by the government: “there was a broader
issue of floor levelness beyond the corridors and bays addressed in Modification
No. 04. See Phillips Dep. Tr. at 67, lines 5-18,” or words to that effect. (App. opp’n,
SUMF ¶ 81; see also ¶¶ 82-89) The record, however, does not include the part of
Mr. Phillip’s transcript that appellant cites. The only transcript of Mr. Phillip’s
deposition in the record is found in Appendix B to the government’s motion.
Appendix B includes only excerpts of Mr. Phillips’ deposition transcript and it does
not include the pages cited by appellant. In many, if not most, instances the failure to
include cited transcript pages in the record could lead to a finding that the non-movant
has failed to properly dispute the facts asserted by the movant and a ruling in the
movant’s favor. However, we find the record does include sufficient evidence for us
to conclude that there may be two separate issues relating to slab levelness (SOF ¶¶ 7,
10). When appellant first raised the slab levelness issue in July 2013, there was no
mention of progressive collapse and fiberwrap material being the reason why the slabs
needed to be levelled. Instead, this appears to be an issue arising from the previous
construction of the slabs out of tolerance as specified by the American Concrete
Institute (ACI). The leveling of the slabs that is addressed in Modification No. 04 is
specifically stated to be attributable to the application of fiberwrap, something that is
possibly independent and apart from the levelness issue that was initially raised by
appellant in July 2013. While appellant has not disputed the government’s factual
assertions as nicely as we would have preferred, we find the record on the issue of slab
levelness is sufficiently clouded that the better course in the circumstances is to
exercise our discretion to hold a hearing on this issue. See S.C. Public Serv. Auth.,
13 Although the Issue 4 narrative appears to describe only the floor leveling work, the
July 29, 2013 letter cited in support of the claim involves both issues (SOF ¶ 7).
14
ASBCA No. 53701, 04-2 BCA ¶ 32,651 at 161,601 citing Anderson, 477 U.S. at 255,
Blue Cross and Blue Shield Assoc., ASBCA No. 53632, 04-1 BCA ¶ 32,413
at 160,447. Accordingly, we deny the government’s motion as it relates to the slab
levelness issue of appellant’s claim.
Issue 5: 70-day time extension due to fire alarm changes
GSC seeks a time extension and potentially, the associated, but unquantified,
extended overhead costs arising from changes made to the fire alarm system. 14 The
government recognized the original claim had merit, but the parties were not able to
agree on the amount of time involved in performing the additional work.
Consequently, the government issued two unilateral modifications, Modification
Nos. 1G and 1H, for this additional work (SOF ¶ 12). The parties were able to agree
on the costs for the additional work, which were paid under Modification No. 1G.
After the work was performed the government recognized and granted appellant a
10-day non-compensatory time extension for performing the work (id.). The
government seeks summary judgment, arguing appellant cannot establish entitlement
and that appellant has been fully compensated by the two modifications (gov’t mot.
at 37-38). The government asserts appellant has arbitrarily selected a 50-day activity
that it inserted into its schedule to establish the 70 calendar day time extension it
seeks and that documents in the record indicate the additional work took much less
time to perform than the time claimed (gov’t mot. at 38-40). The government also
argues the deposition testimony of appellant’s accountant undercuts appellant’s claim
(id.).
This issue involves SUMF ¶¶ 102-122. We find that if the facts as asserted by
the government were taken to be true that they would defeat appellant’s claim for
extended overhead and a time extension beyond that already granted by Modification
No. 1H. Appellant admitted, without any exception, 12 of these facts. Appellant only
denied three of the government’s factual assertions, SUMF ¶¶ 107, 111 and 113.
Appellant admitted but added additional information to the remaining six paragraphs,
which failed to dispute the facts asserted by the government. Although the fact that
appellant refused to execute the modifications because it disagreed with the
government’s assessment of the time required to perform the additional work would
appear to at least superficially establish that a dispute exists regarding the facts
associated with this issue. An examination of the assertions with respect to the SUMF
appellant has ostensibly disputed reveals appellant has failed to dispute the facts
asserted by the government.
14 It is not clear from the record before us whether appellant is seeking a compensatory
or non-compensatory time extension.
15
The non-movant must cite specific materials in the record that we, as the fact
finder could use to find in its favor and this appellant has failed to do. See Optimum
Corp. v. Emcore Corp., 603 F.3d 1313, 1319-1320 (Fed. Cir. 2010) (“When a party
has failed to introduce evidence sufficient to establish the existence of an essential
element of that party’s case in accordance with the applicable standard of proof,
summary judgment is properly granted against that party”), citing Novartis Corp. v.
Ben Venue Labs, Inc., 271 F.3d 1043, 1046 (Fed. Cir. 2001). To establish its right to
a time extension, appellant must show that the additional work involved lies on the
critical path of the schedule. Kinetic Builder’s Inc. v. Peters, 226 F.3d 1307,
1316-1317 (Fed. Cir. 2000) citing Essex Electro Eng’rs, Inc. v. Danzig, 224 F.3d
1283, 1295-96 (Fed.Cir. 2000), Sauer Inc. v. Danzig, 224 F.3d 1340, 1345-46 (Fed.
Cir. 2000). In the three SUMF appellant denied, ¶¶ 107, 111 and 113, appellant
referenced the backup it had submitted in early March 2015 in support of its proposal,
which led to Modifications Nos.1G and 1H. This backup included fragnets, one of
which includes an additional activity, 6-BO009 with a 70-day performance period
extending from March 5, 2015 to May 13, 2015. Although the fragnet includes
handwriting stating the addition of the fire alarm changes affects the critical path, the
record includes nothing more than this conclusory assertion. There is no overall
schedule, or logic submitted, which would explain how or why the addition of this
work would affect the critical path. Even more problematic, appellant’s continued
reliance on its initial submission without more fails to even address, much less put into
issue, the government’s factual assertions, supported by documents in the record, that
the work was completed by the end of March 2015, much more quickly than appellant
contemplated at the time it prepared its proposal and the fragnets. On the record
before us, the claim is implausible because appellant has failed to produce any
evidence to counter the government’s factual assertions. Appellant was required to
produce persuasive evidence and has failed to do so. The record, when considered as a
whole, could not be reasonably found to favor appellant. Although appellant, as the
non-movant is entitled to have all reasonable inferences drawn in its favor, we find
that the factual assertions of the government regarding when the additional work
required was performed and how much time was involved, is unrebutted except with
conclusory, unsupported assertions, which leave no reasonable inferences to be drawn
for appellant. See Matsushita Electric. Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 586-587 (1986). Accordingly, we find SUMF ¶¶ 102-122 have been admitted
and find the government is entitled to summary judgment with respect to this issue.
Issue 6: Repair of damages from basement flood
This issue involves repair costs for two flooding incidents and an increase to
appellant’s insurance premiums, which total $394,750.68, including $27,497.25
claimed for the increased insurance premiums (SOF ¶ 17 (6)). As noted above,
appellant has withdrawn the insurance premium part of its claim. The government
asserts the first flooding incident was caused by appellant, attributing it to a
16
cross-threaded pipe. (SUMF ¶¶ 135-137) Appellant has properly disputed the facts
asserted by the government relating to the first flooding incident. It has submitted an
affidavit from its president, Mr. Locke McKnight, in which Mr. McKnight asserts the
government’s work orders establish that other contractors were working on the
plumbing in the area where the flooding occurred. The affidavit is accompanied by
photographs, which Mr. McKnight asserts establish that someone other than appellant
worked on the piping after appellant had finished its work. We find there is a factual
dispute regarding the identity of the party responsible for the cross-threaded pipe,
which makes this issue unsuitable for resolution by motion for summary judgment.
Although this issue involves an additional flooding incident, because the costs have
not been segregated and we have found there is a factual dispute regarding the first
flooding incident, we need not address this additional flooding incident.
The government also asserts appellant has been paid for the costs appellant
incurred associated with the flooding by its insurance company and is not obligated to
repay same and that all of the evidence in the record suggests appellant does not hold
the government responsible for the flooding (gov’t mot. at 41-42; gov’t reply
at 13-14). Although not outlined in great detail, the government also argues appellant
is not legally entitled to be paid twice for the same costs (gov’t reply at 13-14). The
government’s assertions and argument ignore Mr. McKnight’s assertion that the
government is responsible for the flooding and the plain language of the settlement
agreement between appellant and its insurance company, which requires appellant to
repay the insurance company “to the extent GSC recovers from Roto-Rooter or any
other third person.” (SOF ¶ 22) (Emphasis added) This includes any potential
recovery appellant may receive from the government and thus is consistent with
appellant’s assertion the government is responsible for the flooding. For all of the
above stated reasons we deny the government’s motion as it relates to this issue as
modified by appellant’s withdrawal of the increased premium portion of this issue.
Issue 7: Release of liquidated damages/contract balance
GSC seeks the payment of the outstanding contract balance. The government
opposes, arguing it is undisputed it is entitled to liquidated damages in an amount
exceeding the balance claimed. In support of its argument, the government asserts the
contract provided for liquidated damages in the amount of $1,029.64 per calendar day,
that the contract completion date as extended by modifications was February 15, 2015,
and that the actual completion occurred June 19, 2015, or 124 days late, entitling the
government to $127,675.36 in liquidated damages. (SUMF ¶¶ 163-172) Appellant
admitted these facts, except it asserted the government has admitted substantial
completion occurred on May 8, 2015, and took possession of the building on May 11,
17
2015.15 In its reply brief the government admits for purposes of the motion that
substantial completion occurred on May 8, 2015 (gov’t reply at 15). The government
states that appellant is entitled to a 21-day time extension for Issue No. 2, which
extends the contract completion date to March 8, 2015 and that appellant, therefore,
completed the project 61 calendar days late (id.). The government argues it is thus
undisputed that it is entitled to $62,808.04 (61 x $1,029.64) in liquidated damages.
The facts as revised by the government and appellant are undisputed and establish the
government’s right to liquidated damages in the amount of $62,808.04. Accordingly,
the government’s motion is granted with respect to Issue No. 7 in this amount.
CONCLUSION
The government’s motion is partially granted and partially denied as set forth
above.
Dated: June 4, 2020
CHRISTOPHER M. MCNULTY
Administrative Judge
Armed Services Board
of Contract Appeals
I concur I concur
RICHARD SHACKLEFORD OWEN C. WILSON
Administrative Judge Administrative Judge
Acting Chairman Vice Chairman
Armed Services Board Armed Services Board
of Contract Appeals of Contract Appeals
15 Appellant also asserted the government took possession of Building 2833 as early as
November 17, 2014 (SUMF ¶¶ 172, 174; Counter-Statement of Facts ¶ 10).
Although this assertion is supported by evidence in the record, see SOF ¶ 11,
appellant argues the Board should use the date of May 8, 2015, as the date of
substantial completion in reaching its decision (app. opp’n at 23). We agree
with appellant due to the HVAC system not working properly when the
government took possession. Kinetic Builder’s Inc. v. Peters, 226 F.3d 1307,
1315-16 (Fed. Cir. 2000) (“A project should be considered substantially
completed when it is capable of being used for its intended purpose.”) We find
that a building without a properly functioning HVAC system is not capable of
being used for its intended purpose.
18
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. 61380, Appeal of GSC
Construction, Inc., rendered in conformance with the Board’s Charter.
Dated: June 5 2020
PAULLA K. GATES-LEWIS
Recorder, Armed Services
Board of Contract Appeals
19