Blue Rock Structures, Inc.

ARMED SERVICES BOARD OF CONTRACT APPEALS
Appeal of - )
)
Blue Rock Structures, Inc. ) ASBCA No. 62127)
Under Contract No. N40085-16-D-6300 )
APPEARANCES FOR THE APPELLANT: Mr. Brent Hartness
President
Mr. Chris Lawson
Vice President of Construction
APPEARANCES FOR THE GOVERNMENT: Craig D. Jensen, Esq.
Navy Chief Trial Attorney
Daniel J. Monahan, Esq.
Trial Attorney
OPINION BY ADMINISTRATIVE JUDGE EYESTER
ON THE GOVERNMENT’S MOTION FOR SUMMARY JUDGMENT
Blue Rock Structures, Inc. (Blue Rock or appellant) appeals a contracting officer’s
final decision (COFD) denying its claim of $73,027.34 for additional steel and 21 days of
additional time as a result of a differing site condition for the installation of translucent
roof panels on Hanger 250 at Marine Corps Air Station, Cherry Point, North Carolina.
The Department of the Navy (Navy or government) filed a motion for summary judgment
arguing that the appellant has failed to demonstrate any material facts in dispute to
demonstrate that a differing site condition was the sole cause of the need for additional
steel and time for installation of the panels. Appellant opposes the motion, arguing that
the existing steel in the hangar varied in straightness from the design and was insufficient
for fastening the panels. Because we find that a material fact is in dispute, the motion is
denied.
STATEMENT OF FACTS FOR PURPOSES OF THE MOTION
1. On December 18, 2015, the Navy awarded General Multiple Award
Construction Contract (MACC) No. N40085-16-D-6300 to Blue Rock (R4, tab 2 at 10,
12). 1 The purpose of the MACC was to provide a range of general construction services
that included new construction, demolition, repair, and alteration of buildings, systems
and infrastructure (R4, tab 2 at 25).
1
Citations to the Rule 4 file are to the government’s Bates-stamped numbers. Citations
to the briefs are to the PDF page numbers.
2. All delivery or task orders issued pursuant to the MACC were subject to the
MACC’s terms and conditions (R4, tab 2 at 44). As pertinent here, the MACC
incorporated by reference Federal Acquisition Regulation (FAR) 52.233-1, DISPUTES
(May 2014); FAR 52.236-2, DIFFERING SITE CONDITIONS (APR 1984); and
FAR 52.243-4, CHANGES (JUN 2007) (R4, tab 2 at 30). FAR 52.236-2, DIFFERING
SITE CONDITIONS (APR 1984), states, in pertinent part:
(a) The Contractor shall promptly, and before the conditions
are disturbed, give a written notice to the Contracting Officer
of-
(1) Subsurface or latent physical conditions at the site
which differ materially from those indicated in this
contract; or
(2) Unknown physical conditions at the site, of an
unusual nature, which differ materially from those
ordinarily encountered and generally recognized as
inhering in work of the character provided for in the
contract.
(b) The Contracting Officer shall investigate the site
conditions promptly after receiving the notice. If the
conditions do materially so differ and cause an increase or
decrease in the Contractor’s cost of, or the time required for,
performing any part of the work under this contract, whether
or not changed as a result of the conditions, an equitable
adjustment shall be made under this clause and the contract
modified in writing accordingly.
3. On October 28, 2015, the Navy issued a solicitation for repairs and
improvements to Hangar 250 to selected MACC holders, including Blue Rock (R4, tab 1
at 1-2). The solicitation included specifications and drawings for the project as
attachments (R4, tab 1 at 3).
4. On November 30, 2016, the Navy issued fixed-priced Task Order No. 0005 to
Blue Rock for $13,683,510 for repairs and improvements to Hangar 250 in accordance
with the issued solicitation, as amended (R4, tab 10 at 1260-62, 1268, tab 11). The
agency ultimately issued 13 modifications, which increased the task order award amount
to $15,533,529.08 and established a completion date of December 13, 2019 (R4, tab 31
at 1480).
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5. As part of the renovation, Blue Rock was to provide a translucent fiberglass
skylight system in the hangar (R4, tab 3 at 75, 608-14). The specifications, prepared by
the agency’s Designer of Record, DJG, Inc. (DJG), stated:
Field verify all submitted opening sizes, dimensions and
tolerances . . . . The installer shall examine [the] area of
installation to verify readiness of site conditions and to notify
the Contractor about any defects requiring correction. Verify
when structural support is ready to receive all specified work
and to convene a pre-installation conference, if approved by
the Contracting Officer, including the Contractor, skylight
installer and all parties directly affecting and affected by the
specified work. Do not commence work until conditions are
satisfactory.
In addition, the specifications provided that Blue Rock shall “[e]rect [the] translucent
skylight system in accordance with the approved shop drawings supplied by the
manufacturer.” (R4, tab 3 at 614)
6. The specifications also incorporated by reference several drawings, including
S-301 (Shop Roof) and S-402 (Sections & Details) (R4, tab 3 at 65).
7. Blue Rock subcontracted work to Carolina Architectural Products, Inc.
(Carolina). Carolina used Kalwall Corporation (Kalwall) as its supplier for the
translucent panels. (Gov’t mot., ex. 1 at 28-30)
8. Around March 2017, shop drawings prepared by Kalwall and reviewed by
Carolina were submitted to DJG. DJG signed off on the shop drawing, stating “no
exception taken,” on April 28, 2017 (R4, tab 14).
9. On July 20, 2018, Carolina sent a letter to Blue Rock and advised the
following:
[This is p]er our previous discussions related to the additional
support that is required under the Kalwall system. During the
field verification process, it was determined that the
alignment of the existing steel is off, varying from ½” to 1”,
enough that additional support is necessary to ensure that
there is adequate structure under the Kalwall system to
support it and to which to attach.
The “waviness” of the existing steel will make it very
difficult to install the Kalwall system and be certain that the
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system is adequately supported. The existing support system
is a 8” x 2” steel channel on edge, with the 2” wide flange
being the support surface for the Kalwall system. A variance
of this degree will be detrimental to the installation of the
Kalwall system, weather tightness and the system warranties.
It will be necessary to determine an effective method of
increasing the bearing surface for the Kalwall system. A
minimum bearing surface of 3½” will be necessary to allow
for the inconsistencies in the existing structure.
(R4, tab 22 at 1328)
10. On July 23, 2018, Blue Rock submitted a request for information (RFI) to the
agency stating:
During our site survey in order to make the shop drawings for
the Translucent Panels for the submittal. . . we found that the
existing Structural Supports vary from ½[”] to 1[”] in the
span. The contractor is indicating that he needs to add
additional support to make his system work correctly. Since
the new Roof System is prefab at the factory field
modifications cannot be done in the field. See attached for
more information and sketch.
I have requested a proposal from a third party structural steel
fabricator to provide and install this. I believe that this is a
changed condition to the contract.
(R4, tab 22 at 1327)
11. On July 24, 2018, the agency responded to the RFI and stated it was “unclear
why waviness would effect the fastening of the panels.” The agency further stated that
per the shop drawings, “the panels are set perpendicular to the purlins” and therefore, a
½” or 1” difference would not matter. Further, the agency stated that “Kalwall was
involved with the project during design and concern for the bearing was never
expressed.” The agency requested photos of the existing waviness. (R4, tab 23 at 1330)
12. In another response to RFI 73, also dated July 24, 2018, the government
responded:
Constant communication occurred between DJG and Kalwall
during the design of the translucent panel system. Kalwall
assisted in the development of the details and specifications
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with our Structural Engineer and Architect. It is unclear why
Kalwall never expressed concern of the purlin spacing or
bearing width during the design, but now raises the concern.
If Kalwall requires 3.5 inches for the bearing surface, it
appears that the steel will need to be added.
(R4, tab 26 at 1465)
13. In a letter from Kalwall to Carolina, dated August 2, 2018, Kalwall explained:
“Our standard recommended minimum bearing surface for supports (by others) at our
half-ridge and overlap detail is 3½”. There appears to have been some misunderstanding
on this project; however, a 2” bearing surface is not sufficient for these details” (R4,
tab 26 at 1461).
14. In yet another response to RFI 73, dated August 31, 2018, the government
stated:
The attached [August 2, 2018 letter from Kalwall] identifies
that 3.5-inches is required for bearing of the proposed panel
system. The construction documents clearly show the size of
the channel as a C8x11.5 on Sheet S-301 and S-402. This
channel is only 2-inches wide. With this information the
Contractor had all the information required to identif[y] they
did not have enough bearing width for their proposed panel
system prior to bidding and therefore would require
additional support, such as a steel plate. . . . It appears that
even if the purlins were straight that they would not meet the
fastening requirement, and though the waviness is unforeseen,
it appears it does not pertain [to] the need for the steel plate. .
. . Kalwall was involved with the project during design, into
construction documents and reviewed the design details and
specifications prior to bidding. At no time was concern
expressed for the bearing width.
(R4, tab 26 at 1462) Contrary to the government’s conclusion, we find that the Kalwall
letter, especially when read in conjunction with the communication from Carolina
regarding the field verification process, does not clearly state that 3½” was always
required for the proposed panel system.
15. On September 28, 2018, Blue Rock emailed the Navy construction manager
and stated:
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Thanks for providing information for a possible other
manufacturer for the [Translucent] Panels for the above
referenced project but this company does not meet the
specifications.
If you look at the [Kalwall] website the specs are almost word
for word so my position stands that this spec was written around
[the Kalwall] product.
(R4, tab 26 at 1466)
16. On October 16, 2018, the Navy construction manager emailed Blue Rock and
stated that the structural engineer concluded that the weight of the additional steel
required for the Kalwall system can be supported by the existing structure (R4, tab 26
at 1466).
17. On October 24, 2018, Blue Rock submitted a request for equitable adjustment
(REA) to the contracting officer requesting $73,027.34 for the cost of the additional steel
and additional time to install the steel. Blue Rock stated the requirement for additional
steel was due to “an error and omission from the drawings on the part of the designer of
record.” (R4, tab 26 at 1457) The government denied the REA on March 6, 2019 (R4,
tab 29).
18. On March 6, 2019, Blue Rock submitted a request for a COFD on the denial
of its REA. Blue Rock stated “that the [designer of record] misunderstood or did not
know the requirements for the system they intended for this project.” Blue Rock further
requested information on additional manufacturers that the agency believed would meet
the specifications and which did not require the additional steel requirements. (R4,
tab 30)
19. The contracting officer issued a COFD on June 26, 2019, and denied Blue
Rock’s claim, stating:
The [designer of record] did not make a mistake; Blue Rock’s
own subcontractor did. The translucent panel system
submitted by Blue Rock was improperly designed by Kalwall
for the site-specific application of this project and subsequent
design changes to meet the field-verified measurements is the
responsibility of Blue Rock and its subcontractors.
(R4, tab 33 at 1482-83) This timely appeal followed.
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DECISION
The government has moved for summary judgment, arguing that there is no
material issue of fact in dispute and therefore it is entitled to judgment as a matter of law.
Specifically, the government contends that Blue Rock was required to install translucent
roof panels and the drawings incorporated by reference into the task order award showed
the bearing surface for the translucent roof panels was 2¼” (gov’t mot. at 1-3). The
government further argues that the minimum required bearing surface for the translucent
panels that Blue Rock intended to install--the Kalwall translucent panels--was 3½”.
Therefore, according to the government, the bearing surface identified in the drawings
never would have been sufficient to support the Kalwall system, regardless of any
“waviness.” (Gov’t mot. at 5, 11) The government also argues that there were other
translucent panel manufacturers available, but Blue Rock made no effort, other than
looking at the website of one manufacturer, to find them (gov’t mot. at 6, 11-12).
According to the government, Blue Rock cannot demonstrate that a differing site
condition was the sole cause of the need for additional steel and time for installation of
the panels.
Blue Rock argues that there were discrepancies in the drawings provided by the
government which were not discovered until the existing bearing surfaces (or steel
supports) were exposed during the demolition phase (app. reply at 1-3). Specifically,
Blue Rock contends that the existing bearing surface for the translucent panels was not
straight, but wavy, and varied by 1-2” (app. reply at 1-2). 2 Blue Rock further argues that
as a result of the waviness, the steel surface did not provide sufficient bearing for a
method of fastening, and the panel installation could not be accomplished with any panel
manufacturer (app. reply at 2).
We will grant summary judgment if there is no genuine issue of material fact and
the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477
U.S. 317, 322 (1986). A material fact is one that may affect the outcome of the decision.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A non-movant seeking to
defeat summary judgment must provide sufficient evidence supporting the claimed
factual dispute to require a judge to resolve the parties’ differing versions of the truth at
trial. See id. at 248-49 (quoting First Nat’l Bank of Ariz. v. Cities Serv. Co., 391 U.S.
253, 288-89 (1968)). When considering motions for summary judgment, the evidence
produced by the non-moving party is to be believed and all justifiable inferences are
drawn in its favor. Id. at 255.
2
Blue Rock states that the structural supports had a variance of ½” to 1” on either side
which would equate to 1” to 2” total variance (app. sur-reply at 2).
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We conclude there is a genuine dispute as to whether the additional steel was
needed because of a differing site condition. At this time, the crux of the dispute appears
to center around the August 2, 2018 letter from Kalwall to Carolina, in which Kalwall
stated:
Our standard recommended minimum bearing surface for
supports (by others) at our half-ridge and overlap detail is
3½”. There appears to have been some misunderstanding on
this project; however, a 2” bearing surface is not sufficient for
these details.
(R4, tab 26 at 1461) The Navy contends that this letter confirms the Kalwall translucent
panel system could never have been installed on the hangar because it required a 3½”
bearing surface for support and the Navy drawings clearly showed the surface was only
2¼”. 3 The appellant contends this letter, along with the letter from the installer
(Carolina), show that the Kalwall translucent panels system could not be installed
because the waviness of the surface required an increase in the surface area of 3½” to
allow for the inconsistencies in the structure (app. reply at 4).
The Navy has failed to demonstrate that the Kalwall letter, which is not a model of
clarity, or any other document, proves its case. As noted, we find that the Kalwall letter,
especially when read in conjunction with the communication from Carolina, does not
clearly state that 3½” was always required for the proposed panel system. Accordingly,
Blue Rock has provided sufficient evidence supporting the factual dispute here, such that
a hearing is needed to resolve the parties’ differing versions of the issue. Therefore, the
government’s motion for summary judgment is not appropriate at this time.
3
As support for its motion, the government cites to a deposition conducted on March 6,
2020, with Christopher Lawson who was the superintendent for Blue Rock for this
project. According to the government, Mr. Lawson testified that the Kalwall letter
“means that the design of [the] Kalwall translucent panel system would prevent its
use with [a] 2 inch bearing surface” (gov’t mot. at 5-6, 11, citing ex. 1 at 40-42).
We do not agree that the deposition is so clear on this point, especially when
Mr. Lawson later testifies that when Blue Rock “found out that this – the
C-channel was not in alignment, we came up with a solution” (gov’t mot., ex. 1
at 42). Blue Rock itself states that the government’s conclusions are a “gross
misrepresentation of the Kalwall letter and Mr. Lawson’s Statement” (app. reply
at 4).
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CONCLUSION
For the reasons stated above, the government’s motion for summary judgment is
denied.
Dated: October 21, 2021
LAURA EYESTER
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
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. 62127, Appeal of Blue Rock
Structures, Inc., rendered in conformance with the Board’s Charter.
Dated: October 21, 2021
PAULLA K. GATES-LEWIS
Recorder, Armed Services
Board of Contract Appeals
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