ECC International, LLC

ARMED SERVICES BOARD OF CONTRACT APPEALS
Appeal of -- )
)
ECC International, LLC ) ASBCA No. 58875
)
Under Contract No. W917PM-07-D-0015-0006 )
APPEARANCE FOR THE APPELLANT: Michael A. Richard, Esq.
Obermayer Rebmann Maxwell
& Hippel LLP
Philadelphia, PA
APPEARANCES FOR THE GOVERNMENT: Michael P. Goodman, Esq.
Engineer Chief Trial Attorney
Sarah L. Hinkle, Esq.
Geoffrey A. Mueller, Esq.
Matthew Tilghman, Esq.
Engineer Trial Attorneys
U.S. Army Engineer District, Middle East
Winchester, VA
OPINION BY ADMINISTRATIVE JUDGE STINSON
Appellant, ECC International, LLC (ECCI), appeals a contracting officer’s
(CO) deemed denial of its June 6, 2013, certified claim in the amount of $925,216.00
(R4, tab 2). The parties agreed to submit this appeal for a decision on the record
without a hearing pursuant to Board Rule 11. Each party submitted initial and reply
briefs. Also pending are the parties’ cross-motions for summary judgment, as well as
respondent’s motion to dismiss for lack of jurisdiction. For the reasons stated below,
we deny the government’s motion to dismiss, dismiss the parties’ cross-motions for
summary judgment as moot, and deny the appeal.
FINDINGS OF FACT
The MATOC Contract
1. On August 15, 2007, the Government awarded ECCI Multiple Award Task
Order Contract (MATOC) No. W917PM-07-D-0015, an Indefinite-Delivery,
Indefinite-Quantity contract, “for general construction and construction related
requirements such as repairs, and/or new construction, including the execution of
design-build construction work throughout Afghanistan.” The contract anticipated
award of task orders in the range of $5 million to $25 million. (R4, tab 3 at 142)
2. Paragraph 1.1 of the MATOC Scope of Work states, in part, that “[t]he vast
majority of these projects will be new construction of relatively simple, one-and
two-story living and working facilities similar to other ‘normal’ construction in
Afghanistan, designed to be simple, durable, and easy/inexpensive to maintain” (R4,
tab 3 at 147).
3. MATOC Scope of Work paragraph 1.4 states, in part:
Where design-build services are required, the contractor
shall employ the services of architect/engineering
professional established in coordination with
multi-discipline architectural/engineering design efforts.
The Contractor’s architect/engineering team shall be
responsible for the coordination of all these disciplines in
the performance of task order work.
(R4, tab 3 at 147)
4. Section 01335 of the MATOC is entitled “SUBMITTAL PROCEDURES
FOR DESIGN-BUILD PROJECTS” (R4, tab 3 at 186). Paragraph 1.2.1, “DESIGN
SUBMITTALS,” states, in part:
Contractor Furnished design submittals are the various
design documents which primarily consist of
specifications, drawings and design analysis and
calculations. The Design-Build Contractor shall not begin
construction work until the Government has reviewed the
Design-Build Contractor’s final design and has cleared it
for construction. Clearance for construction shall not be
construed as meaning Government approval. Unless
otherwise indicated, the risk for the design is the sole
responsibility of the Design-Build Contractor.
As a minimum, design submittals shall be submitted at the
following intervals:
Concept design (35%): In addition to submission
requirements, a design analysis/basis of design shall be
required, including a proposed listing of specification
sections.
2
General design (65%): In addition to submission of
designs, the contractor shall provide the design analysis,
design specifications and design calculations.
Final (100%): In addition to submission requirements, a
final draft of specifications and design analysis/basis of
design shall be required.
(R4, tab 3 at 187-88)
5. MATOC paragraph 1.2.2.1, “Contractor Furnished Government Approved
Construction Submittals,” states:
Government approved construction submittals are
primarily related to plans (Contractor Quality Control,
Accident Prevention, Resident Management System, Area
Use, etc.) schedules (Project Schedule/Network Analysis),
and certificates of compliance. They may also include
proposed variations to approved design documents in
accordance with the paragraph entitled “VARIATIONS”.
(R4, tab 3 at 188)
6. MATOC paragraph 1.3, “SUBMITTAL CERTIFICATION,” states:
The CQC organization shall be responsible for certifying
that all submittals and deliverables have been reviewed in
detail for completeness, are correct, and are in strict
conformance with the contract drawings, specifications,
and reference documents.
(R4, tab 3 at 188)
7. MATOC paragraph 1.3.1.2, “CQC System Manager Review and Approval,”
states:
Prior to submittal, all items shall be checked and approved
by the Design-Build contractor’s Quality Control (CQC)
System Manager. If found to be in strict conformance with
the contract requirement, each item shall be stamped,
signed, and dated by the CQC System Manager. Copies of
the CQC organizations review comments indicating action
taken shall be included within each submittal.
3
(R4, tab 3 at 188)
8. MATOC paragraph 1.3.1.3, “Determination of Compliance,” states:
Each submittal shall be complete and in sufficient detail to
allow ready determination of compliance with contract
requirements by the Contracting Officer. The contractor
shall submit all required documentation with submittals.
The U.S. Army Corps of Engineers (USACE) will not
accept partial submittals.
(R4, tab 3 at 188)
9. MATOC paragraph 1.3.2, “Responsibility for Errors or Omissions,” states:
It is the sole responsibility of the Design-Build Contractor
to ensure that submittals do or do not comply with the
contract documents. Government review, clearance for
construction, or approval by the Contracting Officer shall
not relieve the Design-Build Contractor from responsibility
for any errors or omissions in such drawings, nor from
responsibility for complying with the requirements of this
contract.
(R4, tab 3 at 188)
10. MATOC paragraph 1.3.2.1, “Government Review,” states:
Government review, clearance for construction, or
approval of post design construction submittals shall not be
construed as a complete check, but will indicate only that
the general method of construction, materials, detailing and
other information are satisfactory.
(R4, tab 3 at 188-89)
11. MATOC paragraph 1.3.3, “Substitutions,” states:
After design submittals have been reviewed and cleared for
construction by the Contracting Officer, no resubmittal for
the purpose of substituting materials or equipment will be
4
considered unless justified as indicated in the paragraph
entitled VARIATIONS.
(R4, tab 3 at 189)
12. MATOC paragraph 3.2.2, “Construction Submittal Register (ENG Form
4288),” states:
Attached to this section is ENG Form 4288 which the
Contractor is responsible for developing for this contract.
All construction submittals shall be shown on this register.
The submittal register shall be the controlling document
and will be used to control all construction submittals
throughout the life of the contract. The Contractor shall
maintain and update the register on a monthly basis for the
Contracting Officer’s approval.
(R4, tab 3 at 198)
13. MATOC paragraph 3.6.4, “Variations,” states, in part:
If design documents or construction submittals show
variations from the contract parameters and/or
requirements, the Contractor shall justify such variations in
writing, at the time of submission. Additionally, the
contractor shall also annotate block “h” entitled “variation”
of ENG FORM 4025. After design submittals have been
reviewed and cleared for construction by the Contracting
Officer, no resubmittal for the purpose of substituting
materials, equipment, systems, and patented processes will
be considered unless accompanied by the following:
a. Reason or purpose for proposed variation, substitution,
or revision.
***
If the Government review detects any items not in
compliance with contract requirements or items requiring
further clarification, the contractor shall be so advised.
Lack of notification by the Contracting Officer of any
non-complying item does not relieve the Contractor of any
contractual obligation.
5
(R4, tab 3 at 204)
14. MATOC paragraph 3.7.2, “Independent Design Review,” states:
The Design-Build Contractor shall have someone other
than the Designer or Design Team perform an independent
review of all specifications, drawings, design analysis,
calculations, and other required data prior to submission to
the Government. Upon completion of this review, the
Design-Build Contractor shall certify that each design
submittal is complete, accurate, is in strict conformance
with all contract requirements, that repetition has been
avoided, that all conflicts have been resolved, and that the
documents have thoroughly coordinated and cross checked
against all the applicable disciplines to prevent the
omission of vital information.
(R4, tab 3 at 205)
15. MATOC paragraph 3.7.3, “Contractor’s Quality Control Organization
Review,” states, in part:
Cleared for Construction does not relieve the Design-Build
Contractor from the responsibility for any errors or
omissions in the design, nor from responsibility for
complying with the requirements of this contract.
(R4, tab 3 at 205)
16. MATOC paragraph 3.7.4, “Government Review,” states, in part:
Contractor shall coordinate with the Contracting Officer
and/or Representative(s) to register for DrChecks℠ use.
The review will be for conformance with the technical
requirements of the solicitation and the Successful
Offeror’s (Contractor’s) RFP proposal.
***
Clearance for construction does not mean Government
approval. Government review shall not be construed as a
complete check but will evaluate the general design
6
approach and adherence to contract parameters. The
Government Review is often limited in time and scope.
Therefore, the Contractor shall not consider any review
performed by the Government as an excuse for incomplete
work. Upon completion of the review, all comments will
be forwarded to the contractor. The Contracting Officer
will indicate whether the design submittal has or has not
been cleared for construction using the following action
codes:
A - Cleared for Construction
B - Cleared for Construction, except as noted in attached
comments
C - Cleared for Construction, except as noted in attached
comments, resubmission required
E - NOT Cleared for Construction, see attached comments,
resubmission required
FX - Receipt acknowledged, does not comply as noted
with contract requirements
These codes shall NOT be used by the Design-Build
Contractor. Design-Build Contractor’s quality Control
Organization will annotate Block “g” entitled “FOR
CONTRACTOR USE CODE” of Eng Form 4025-R using
the action codes listed on the reverse side of the form.
Design submittals Cleared for Construction by the
Contracting Officer shall not relieve the Contractor from
responsibility for any design errors or omissions and any
liability associated with such errors, nor from
responsibility for complying with the requirements of this
contract.
(R4, tab 3 at 205-06)
17. MATOC paragraph 3.7.4.1, “Incorporation of Government Review
Comments,” states, in part:
7
During the design review process, comments will be made
on the design submittals that will change the drawings and
specifications. The Government will make no additional
payments to the Contractor for the incorporation of
comments. Review comments are considered part of the
design-build process.
The Contractor will be furnished comments from the
various design sections of the Corps of Engineers,
Afghanistan Engineer District (AED) and/or Europe
District (EUD) and/or Transatlantic Program Center
(TAC), as well as from other concerned agencies involved
in the review process. The review will be for conformance
with the technical requirements and parameters of the
contract documents. The Contractor shall either
incorporate each comment or, if the Contractor disagrees
technically and does not intend to comply with the
comment(s), the contractor shall clearly outline, with
ample justification, its reason for its noncompliance within
five (5) days after receipt of the comment(s). Additionally,
the Contractor is cautioned in that if it believes the action
required by any comment exceeds the requirements of this
contract, that he should take no action and notify the
Contracting Officer in writing immediately.
(R4, tab 3 at 206-07)
18. MATOC paragraph 3.7.5, “Design Discrepancies,” states, in part:
Design-Build Contractor shall be responsible for
the correction of incomplete design data, omissions, and
design discrepancies which become apparent during
construction. The Design-Build Contractor shall provide
the Contracting Officer with a proposed recommendation
for correcting a design error, within three (3) calendar days
after notification by the Contracting Officer. The
Contracting Officer will notify the Design-Build
Contractor of any detected noncompliance with the
foregoing requirements.
(R4, tab 3 at 207)
19. MATOC paragraph 3.8.5, “Commencement of Construction,” states:
8
Construction of work may begin after receipt of the
clearance for construction (Notice to Proceed) for each
design phase. Any work performed by the Contractor prior
to receipt of the clearance for construction, shall be at the
Contractor’s own risk and expense. Work cleared for
construction that does not conform to the design
parameters and/or requirements of this contract shall be
corrected by the Contractor at no additional cost or time to
the Government.
(R4, tab 3 at 208)
20. MATOC paragraph 3.10 sets forth “GENERAL DESIGN
INSTRUCTIONS.” Paragraph 3.10.1 sets forth “Responsibility of the Design-Build
Contractor.” Paragraph 3.10.1.1, “Professional Quality, Technical Accuracy, and
Coordination,” states:
The Design-Build Contractor shall be responsible for the
professional quality, technical accuracy, and the
coordination of all design specifications, drawings, and
other services furnished under this contract. Work must be
organized in a manner that will assure thorough
coordination between various details on drawings, between
the various sections of the specifications, and between the
drawings and specifications. The Design-Build Contractor
shall thoroughly cross-check and coordinate all work until
he is professionally satisfied that no conflicts exit, vital
information has not been omitted, and that indefinite
language open to interpretation has been resolved.
(R4, tab 3 at 210)
21. MATOC paragraph 3.10.2.4, “Technical Criteria,” states, in part:
All designs, drawings, and specifications shall be prepared
in accordance with the contract documents and with the
applicable publications referenced therein.
***
Any deviations from the technical criteria contained in the
contract documents or in the applicable publications,
9
including the use of criteria obtained from the user or other
sources, must receive prior approval of the Contracting
Officer. Where the technical criteria obtained or referred
to herein are not met, the Design-Build Contractor will be
required to conform his design to the same at his own time
and expense.
(R4, tab 3 at 211-12)
22. MATOC paragraph 3.10.3, “Design Priorities,” states, in part, “[t]he design
of this project shall consider the remote location and harsh environment of the projects
and the impact this will have on technical supply, the cost of construction, the low
level of maintenance, and the difficulty of finding replacement parts” (R4, tab 3
at 212).
23. MATOC paragraph 3.14.3, “Government Approval of Design Submittals,”
states, in part:
The approval of construction submittals by the Contracting
Officer shall not be construed as a complete check, but will
indicate only that the general method of design
construction, materials, detailing and other information are
satisfactory. Approval will not relieve the Design-Build
Contractor of the responsibility for any error which may
exist, as it is the sole responsibility of the Design-Build
Contractor to certify that each submittal has been reviewed
in detail and is in strict conformance with all the contract
documents and design criteria referenced therein.
(R4, tab 3 at 217)
24. The MATOC contained design specifications prepared by
Michael Baker, Jr., Inc. (Baker) under a separate contract with the government (R4,
tab 4 at 1). Section 01 33 00 set forth “SUBMITTAL PROCEDURES” (R4, tab 4
at 271). Paragraph 1.3.1 of the MATOC design specifications, “Designer of Record
Approved,” states:
Designer of Record approval is required for extensions of
design, critical materials, any deviations from the
solicitation, the accepted proposal, or the completed
design, equipment whose compatibility with the entire
system must be checked, and other items as designated by
the Contracting Officer. Within the terms of the Contract
10
Clause entitled “Specifications and Drawings for
Construction”, they are considered to be “shop drawings”.
The Contractor shall provide the Government the number
of copies designated hereinafter of all Designer of Record
approved submittals. The Government may review any or
all Designer of Record approved submittals for
conformance to the Solicitation and Accepted Proposal.
The Government will review all submittals designated as
deviating from the Solicitation or Accepted Proposal, as
described below. Generally, design submittals should be
identified as SD-05 DESIGN DATA submittals.
(R4, tab 4 at 274)
25. MATOC design specification paragraph 1.3.2, “Government Approved,”
states:
Government approval is required for extensions of design,
critical materials, deviations, equipment whose
compatibility with the entire system must be checked, and
other items as designated by the Contracting Officer.
Government approval is required for any deviations from
the Solicitation or Accepted Proposal and other items as
designated by the Contracting Officer. Within the terms of
the Contract Clause entitled “Specifications and Drawings
for Construction,” they are considered to be “shop
drawings.”
(R4, tab 4 at 274)
26. MATOC design specification paragraph 1.3.3, “Government Reviewed
Design or Extension of Design,” states:
The Government will review all (65%) and (75%) design
submittals for conformance with the technical
requirements of the solicitation. Government review is
required for extension of design construction submittals,
used to define contract conformity, and for deviation from
the completed design. Review will be only for
conformance with the contract requirements. Included are
only those construction submittals for which the Designer
of Record design documents do not include enough detail
to ascertain contract compliance. The Government may,
11
but is not required, to review extensions of design such as
structural steel or reinforcement shop drawings.
(R4, tab 4 at 274)
27. MATOC design specification paragraph 1.4, “Approved Submittals,”
states:
The Contracting Officer’s approval of submittals shall not
be construed as a complete check, but will indicate only
that the general method of construction, materials,
detailing and other information are satisfactorydesign [sic],
general method of construction, materials, detailing and
other information appear to meet the Solicitation and
Accepted Proposal. Approval will not relieve the
Contractor of the responsibility for any error which may
exist, as the Contractor under the Contractor Quality
Control (CQC) requirements of this contract is responsible
for design, dimensions, all design extensions, such as the
design of adequate connections and details, etc., and the
satisfactory construction of all work. After submittals have
been approved by the Contracting Officer, no resubmittal
for the purpose of substituting materials or equipment will
be considered unless accompanied by an explanation of
why a substitution is necessary.
(R4, tab 4 at 275)
28. MATOC design specification paragraph 1.10.2, “Deviations,” states:
For submittals which include proposed deviations
requested by the Contractor, the column “variation” of
ENG Form 4025 shall be checked. The Contractor shall
set forth in writing the reason for any deviations and
annotate such deviations on the submittal. The
Government reserves the right to rescind inadvertent
approval of submittals containing unnoted deviations.
(R4, tab 4 at 277)
29. The MATOC design specifications included section 09 22 37.00 10,
“LATHING AND PLASTERING,” which set forth instructions for installing lath and
12
plaster ceilings (R4, tab 4 at 532-43). The MATOC design specifications contained no
specifications concerning installation of acoustical tile ceilings (R4, tab 4). 1
30. The MATOC incorporated by reference FEDERAL ACQUISITION
REGULATION (FAR) 52.236-21, SPECIFICATIONS AND DRAWINGS FOR
CONSTRUCTION ALT I (FEB 1997) (R4, tab 3 at 149). Sections (e) and (f) provide:
(e) If this contract requires shop drawings, the Contractor
shall coordinate all such drawings, and review them for
accuracy, completeness, and compliance with contract
requirements and shall indicate its approval thereon as
evidence of such coordination and review. Shop drawings
submitted to the Contracting Officer without evidence of
the Contractor’s approval may be returned for
resubmission. The Contracting Officer will indicate an
approval or disapproval of the shop drawings and if not
approved as submitted shall indicate the Government’s
reasons therefor. Any work done before such approval
shall be at the Contractor’s risk. Approval by the
Contracting Officer shall not relieve the Contractor from
responsibility for any errors or omissions in such drawings,
nor from responsibility for complying with the
requirements of this contract, except with respect to
variations described and approved in accordance with (f)
below.
(f) If shop drawings show variations from the contract
requirements, the Contractor shall describe such variations
in writing, separate from the drawings, at the time of
submission. If the Contracting Officers approves any such
variation, the Contracting Officer shall issue an appropriate
contract modification, except that, if the variation is minor
or does not involve a change in price or in time of
performance, a modification need not be issued.
48 C.F.R. § 52.236-21.
1 Appellant’s cross-motion did not contest this fact (gov’t mot. at 9 ¶¶ 5-6; app.
cross-mot. at 2).
13
Task Order No. 0006
31. On May 22, 2008, Rahmat Sadat Construction Company (RSCC) submitted
to ECCI its “offer to design/build the Afghanistan National Border Police Zone
Command (BP Zone) Type B facilities project in accordance with ECCI/USACE
RFP-00XX, Certifications & Representations, Scope of Work, Technical
Requirements, Drawings and Specifications.” RSCC agreed to “provide all design,
management, materials, equipment, labor, technical support, and insurance, to
implement and complete the project requirements for USD $7,014,126.88.” (R4,
tab 200)
32. On May 29, 2008, the Government awarded ECCI Task Order No. 0006
(the Task Order) in the amount of $13,498,448.00, for the design and construction
of a Border Patrol Zone Command facility for the Afghan National Police (ANP), in
Kandahar, Afghanistan (R4, tab 19 at 1280-81).
33. The Task Order Scope of Work, paragraph 1.1, states:
This project consists of the design and construction of site
improvements and construction of facilities to support the
Afghanistan National Border Police Zone Command (BP
Zone), Type B Facilities (577 People) in Herat/Kandahar/
Mazar-e-Sharif, Afghanistan. This project is defined as the
management, design, material, labor, and equipment to
design and construct and/or refurbish all utilities, roads,
buildings, force protection measures, site security,
demining activities, and other features as referenced
herein.
(R4, tab 19 at 1282)
34. The Task Order Scope of Work, paragraph 1.2, states:
The site improvement work shall include the preparation of
design documents and the subsequent construction of the site
improvements described within this Section, Section 01015
and the Drawings with modifications to fit the actual site
selected. The facilities required for each site shall include
structures as indicated in the Drawings and Specifications and
contain all connections of utilities as shown on the Drawings.
All sitework and facilities may require modifications to meet
site conditions and these modifications shall be designed and
constructed in accordance with current U.S. and International
14
Building Codes and standards and as described in these
documents. Any standard that can be determined to be
substantially equivalent to the standards specified in this
document may be used, but it is the Contractor’s
responsibility to show the equivalency of the alternate
standard and the Contracting Officer must approve its use. A
partial listing of references is included within the Request for
Proposal.
(R4, tab 19 at 1282)
35. The Task Order Scope of Work, paragraph 2, “GENERAL
REQUIREMENTS FOR THE POLICE PROGRAM,” includes paragraph 2.1,
“Contractor Requirements,” which states, in part:
The contractor shall design and construct the site
improvements and facility modifications to meet site
conditions as a design-bid-build contract and shall be in
accordance with the requirements stated in Section 01015:
Technical Requirements. Refer to attachment following
this section for more specifics for required information.
The buildings and fueling facilities have been designed and
are to be constructed as indicated herein.
(R4, tab 19 at 1283)
36. The Task Order Scope of Work, paragraph 1.3, states, in part:
Site Improvement Design Work shall be executed in
accordance with the technical requirements described
herein Section 01015, and the Technical Specifications,
and Drawings. In case of question or ambiguity, the
Contracting Officer (KO) shall make the final decision.
(R4, tab 19 at 1282)
37. The Task Order Technical Requirements (01015), paragraph 1.1, states:
The Contractor’s design and construction must comply
with technical requirements contained herein. The
Contractor shall provide design and construction using the
best blend of cost, construction efficiency, system
15
durability, ease of maintenance and environmental
compatibility.
(R4, tab 19 at 1287)
38. The Task Order Technical Requirements (01015), paragraph 1.2, states:
These design and product requirements are minimum
requirements. The Contractor is encouraged to propose
alternate design or products (equipment and material) that
are more commonly used in the region; will be equally or
more cost effective or allow for more timely completion,
but furnish the same system durability, ease of
maintenance and environmental compatibility. The
Contractor will be required to submit information as
requested by the Contracting Officer to make a comparison
of the proposed alternate. All variations must be approved
by the Contracting Officer.
(R4, tab 19 at 1287)
39. The Task Order Technical Requirements (01015), paragraph 1.8, “List of
Codes and Technical Criteria,” incorporated by reference Unified Facilities Criteria
(UFC) 1-300-07A, “Design Build Technical Requirements” (R4, tab 19 at 1290-91).
The Baker Drawings
40. The Task Order contained drawings prepared by Baker (the “Baker
drawings”) (R4, tab 20). Ceiling Plan Note 3 in drawings A-A4 and A-A5,
depicting the Administration Building, states that “[a]ll ceiling surfaces shall be
painted plaster on metal lath” (R4, tab 20 at 1318-19). Ceiling Plan Note 2 in
drawing D-A3, depicting the Shower and Latrine Building, states that “[a]ll ceiling
surfaces shall be painted plaster on metal lath” (R4, tab 20 at 1364). Ceiling Plan
Note 2 in drawing E-A3, depicting the Barracks, states that “[a]ll ceiling surfaces
shall be painted plaster on metal lath” (R4, tab 20 at 1376). Ceiling Plan Note 2 in
drawing F-A3, depicting the Women Barracks, states that “[a]ll ceiling surfaces
should be painted plaster on metal lath” (R4, tab 20 at 1386). Ceiling Plan Note 3
in drawings G-A4 and G-A5, depicting the Senior and High Barracks, states that
“[a]ll ceiling surfaces shall be painted plaster on metal lath” (R4, tab 20 at 1398-99).
Ceiling Plan Note 2 in drawing H-A1, depicting the Warehouse, states that “[a]ll
ceiling surfaces shall be painted plaster on metal lath,” and Detail 7 on Warehouse
drawing H-A2 indicates installation of a metal lath and plaster ceiling (R4, tab 20
at 1412-13). Ceiling Plan Note 2 in drawing I-A3, depicting the Laundry facility,
16
states that “[a]ll ceiling surfaces shall be painted plaster on metal lath” (R4, tab 20
at 1418). Detail 3 on drawing J-A3, and the corresponding legend, indicates
installation of “plaster on metal lath” in certain portions of the Vehicle Maintenance
facility (R4, tab 20 at 1429). Details 4 and 5 on drawing S-A1, indicate installation
of a “metal lath and plaster ceiling” in the One Story Building, Administration
Building, and the High and Senior Barracks (R4, tab 20 at 1487). Detail 4 on
drawing S-A2, indicates installation of a “metal lath and plaster ceiling” in Middle
Barracks and the Shower and Latrine, and the Laundry Building (R4, tab 20
at 1488). Drawing S-A13, setting forth standard details, includes a diagram
depicting a “Suspended Plaster Ceiling” in Details 12 and 13, indicating installation
of “plaster on metal lath” (R4, tab 20 at 1499). Drawing S-E3, setting forth
Electrical, includes a diagram depicting Typical Detail For Surface Mounted Light
Fixtures, indicating installation of “metal lath and a plaster (finished ceiling)” (R4,
tab 20 at 1527).
41. The Baker drawings included in the Task Order did not include any detail
or other information requiring installation of acoustical tile ceilings (R4, tabs 4, 20).2
ECCI Design Submittals
42. ECCI submitted to the government ENG Form 4025, “Transmittal Of
Shop Drawings, Equipment Data, Material Samples, Or Manufacturer’s Certificate
Of Compliance,” Transmittal No. 01335-1, requesting approval of the 35 percent
design package. 3 The transmittal was dated October 6, 2008, and marked received
by the government that same day. In column “h,” entitled “VARIATION,” the
contractor indicated “N.” In submitting the transmittal to the government, the
contractor stated: “I certify that the above submitted items have been reviewed in
detail and are correct and in the strict conformance with the contract drawings and
specifications except as otherwise stated.” (App. supp. R4, tab 142)
43. On October 7, 2008, ECCI submitted ENG Form 4025, Transmittal
No. 01335-2, with a Submittal Register attached, listing over 200 specifications
2 Appellant’s cross-motion did not contest this fact (gov’t mot. at 9 ¶ 4; app.
cross-mot. at 2).
3 The reverse side of ENG Form 4025, which does not appear in the record, sets
forth instructions for the contractor to follow, including the requirement that
it place a check in the column marked “VARIATION” if the submittal is not
in accordance with the contract plans and specifications, and provide a
written statement to that effect in the remarks column. Gramoll Constr. Co.,
ASBCA No. 44514, 96-1 BCA ¶ 27,975 at 139,725, aff’d, 121 F.3d 725
(Fed. Cir. 1997) per curiam (table); D.E.W., Inc., ASBCA No. 35759, 92-1
BCA ¶ 24,520 at 122,359.
17
(app. supp. R4, tab 165). Included in the list of specifications is a reference to
specification 09 51 00, “SD-03 Acoustical Ceiling Systems” (app. supp. R4, tab 127
at 30697). In column “h,” entitled “VARIATION,” on the ENG Form 4025, the
contractor indicated “N.” In submitting the transmittal to the government, the
contractor stated: “I certify that the above submitted items have been reviewed in
detail and are correct and in the strict conformance with the contract drawings and
specifications except as otherwise stated” (app. supp. R4, tab 127 at 30695).
44. The government approved the Submittal Registry on October 7, 2008,
stating, “Submittal Register needs to be updated per general specification
requirements” (app. supp. R4, tab 127 at 30695-96). ECCI states in its brief that
the Submittal Registry “did not include Specification § 09 22 37 LATHING AND
PLASTERING” (app. br. at 6). Specification 09 22 37.00 10 was included in the
MATOC design specification (R4, tab 4 at 532-43).
45. ECCI alleges in its complaint that it “reasonably interpreted the contract
documents as allowing design and installation of acoustical tile ceilings in the
buildings required by the RFP” and “reasonably bid design and installation of
acoustical tile ceilings for the buildings required by the RFPs” (compl. ¶¶ 22-23).
46. Joseph Huizar, an ECCI design manager, conducted a review of the
contractor’s various design submissions for “ceiling drawings,” and reported his
findings to Thomas Stoneham, ECCI Senior Project Manager, as follows:
Per RFP plaster ceilings.
35% plaster 27 Sep 08
65% plaster 05 Dec 08
65% R1 ceiling board 10 Jul 09
99% ceiling board 05 Nov 09
(R4, tabs 249 at 8298, 266 at 8385, 369 at 10008) 4
ECCI’s 65 Percent Design
47. RSCC is identified on the original 65 percent design drawings, the
65 percent design resubmittal drawings, and the 99 percent design drawings, as the
“Subcontractor/ Designer” (app. supp. R4, tabs 130, 132, 137). RSCC developed
the 65 percent and 99 percent drawings, as well as the design narrative (R4, tab 369
at 10007).
4 It appears that the record does not contain a copy of the September 27, 2008,
35 percent drawings.
18
48. ECCI submitted to the government ENG Form 4025, Transmittal
No. 01335-3, requesting approval of the 65 percent design package. The transmittal
was dated December 27, 2008, and marked received by the government on January 11,
2009. On the first page of the document, ECCI entered “N” in block “h,” under the
heading “VARIATION,” and on the second page under the column “Variation,” stated
“No.” In signing the transmittal, ECCI certified that “the above submitted items have
been reviewed in detail and are correct and in the strict conformance with the contract
drawings and specifications except as otherwise stated.” The government signed the
document on February 8, 2009, stating “Comments in DR checks, resubmittal
required.” (App. supp. R4, tab 167)
49. The 65 percent design submittal drawings dated December 26, 2008, stated,
“All Ceiling Surfaces Shall Be Ceiling Board Panel” for the Administration Building,
the Women’s Barracks, and the Senior and High Barracks (app. supp. R4, tab 130
at 25922, 28513, 28525-26). For the Laundry building, the drawings stated “All
Ceiling Surfaces Shall Be Painted Plaster On Metal Lath” (app. supp. R4, tab 130
at 28554).
50. The 65 percent design resubmittal drawings, dated July 10, 2009, stated
“All Ceiling Surfaces Shall Be Ceiling Board Panel” for the Administration Building
(Note 3), the Shower and Latrine Building (Note 2), Barracks (Middle/Ordinary) (Note
2), the Women’s Barracks (Note 2), the Senior and High Barracks (Note 3), and the
Warehouse (Note 2) (app. supp. R4, tab 132 at 18312-54). For the Laundry building,
the drawing stated “All Ceiling Surfaces Shall Be Painted Plaster On Metal Lath”
(Note 2) (app. supp. R4, tab 132 at 18358).
51. The 65 percent design narrative executive summary states, “[t]he complete
design of this project was provided by ECCI/AED to RSCC, RSCC is to site adopt the
design based on site condition” (R4, tab 217 at 6091).5 The 65 percent design
narrative states also, “[i]n general, interior wall construction shall be painted cement
plaster applied to CMU. The interior of outside perimeter walls shall be painted
plaster on metal lath. Ceiling systems shall be suspended cement plaster.” (R4, tab
5 The design narrative is undated. The government’s Rule 4 index identifies the
document as “July 10, 2009, Design Narrative, 65 Percent” (R4, tab 000,
“ASBCA 58875 Gov Supp TOC”). Appellant’s brief suggests that the design
narrative pertained to the original 65 percent design (app. cross-mot. at 7 ¶ 31,
citing R4, tab 217 at 6104-6105). The government’s brief suggests that the
design narrative concerned appellant’s revised 65 percent design (gov’t br.
at 6). Regardless of whether the design narrative applies to the original
65 percent design or the revised design, it is reflective of appellant’s less than
exacting compliance with the MATOC and the Task Order requirements. We
refer to it, herein, as simply the 65 percent design narrative.
19
217 at 6104-05) The 65 percent structural design calculations were based upon, and
indicted use of, plaster ceilings (R4, tabs 226 at 6902, 6904-05, 227 at 7374, 7376-77).
52. The 65 percent design resubmittal specifications included specification
sections for metal support assemblies, lathing and plastering, and gypsum board (R4,
tab 218 at 6111, 6389, 6392, 6410). The document contained no specification section
for acoustical tile ceilings, other than a reference to acoustical ceilings in (1) Section
05 50 00, “METAL: MISCELLANEOUS AND FABRICATIONS,” as part of a
discussion regarding access panels, and (2) Section 05 51 00.00 40, “METAL
STAIRS,” referencing ASTM C 636/C 636M (2006), “Standard Practice for
Installation of Metal Ceiling Suspension Systems for Acoustical Tile and Lay-In
Panels” (R4, tab 218 at 6240, 6244).
53. In response to the original 65 percent design submittal, the government
submitted comment “2248956 Architectural,” stating, in part:
Contractor shall construct all features of work
(architectural, structural, mechanical, plumbing and
electrical) included in the contract plans and specifications
furnished by AED as part of this contract. No changes or
variations are permitted to work shown in the given
foundation dimensions and/or materials shown on the
furnished drawings are not adequate [sic]. In this case
only, all necessary geotechnical data from a given project
site plans (and specification if applicable) and [sic]
submitted for review and approval by AED at the 35%
design submittal schedule milestone. Even if foundation
design changes are required, all other features of work
shall be accomplished in strict compliance with the
drawings, details and specifications provided by AED in
the contract.
(App. supp. R4, tab 115 at 6529) ECCI’s response, submitted on April 15, 2009,
stated: “Concurred, It has been complied.” The comment was then closed without
further comment. (App. supp. R4, tab 115 at 6530)
RFI 0009
54. On July 9, 2009, ECCI submitted to the government RFI 0009 concerning
“Solicitation No. W917PM-07-R-0105 3.4.2.” The RFI referenced specification
20
sections 3.4, “Exterior Building Envelope,” and section 3.4.2.6 The subject of
RFI 0009 was “Interior Wall Finish,” and discussed the “Exterior Building Envelope”
and the interior covering of exterior walls. The information requested was as follows:
Solitation [sic] No. W917PM-07-R-0105 Medium
Construction MATOC stated the following in regards to
the building interior finishes
3.4 Exterior Building Envelope.
3.4.2 Wall insulation shall be 100mm rigid insulation
applied between 100mm metal studs on the inside surface
of the building exterior wall covered with metal lath and
plaster.
In order to provide the Government a better finished
product (straighter walls by avoiding wavy metal lath
between studs), is gypsum board (drywall) acceptable in
lieu of plaster over metal lath?
This susbstitution [sic] is consistent with adjacent Metag
constructed buildings, and would be used on all exterior
walls, and a suspended/drop ceiling would be used rather
than drywall ceiling. This would be a no cost change to
the Government.
(App. supp. R4, tabs 92, 93 at 6438) The RFI stated the following in bold letters at the
bottom of the form:
NOTE: THE RFI SYSTEM IS INTENDED TO
PROVIDE AN EFFICIENT MECHANISM FOR
RESPONDING TO CONTRACTOR'S REQUESTS FOR
INFORMATION. IT DOES NOT PROVIDE
AUTHORITY TO PROCEED WITH ADDITIONAL
WORK. IF THE CONTRACTOR CONSIDERS THE RFI
RESPONSE A CHANGED CONDITION, PROVIDE
6 The Board requested appellant submit a copy of the solicitation specification
referenced in RFI 0009. In response, appellant provided an excerpt of the
design analysis prepared by Baker, which, according to appellant, is the
document referenced and paraphrased in the RFI. The Board has added
appellant’s cover letter and design analysis excerpt to the record as app. supp.
R4, tabs 181-82.
21
WRITTEN NOTICE TO THE CONTRACTING
OFFICER’S REPRESENTATIVE IN ACCORDANCE
WITH CONTRACT PROVISIONS.
(App. supp. R4, tab 92)
55. The design analysis prepared by Baker, and provided by the government
with the original RFP, includes section 3.4.2, “Walls,” which states:
The walls will be reinforced and tied to the steel building
frame as required. The exterior face of wall will have a
stucco finish. On the interior side of the wall surfaces
100mm of rigid insulation will be applied. The interior
finish of the exterior walls will be cement-plaster on metal
lath.
Lintels in exterior walls will be reinforced cast in place
concrete, or reinforced concrete masonry lintel blocks.
Similarly, sloping sills will be either cast in place or
concrete masonry shapes with a cement wash or stainless
steel sill.
Section 3.5, “Interior Construction and Finishes,” states, in part, “[c]eiling systems
shall be suspended cement plaster.” (App. supp. R4, tabs 181, 182 at 25)
56. According to a Quality Assurance Report (QAR) dated July 11, 2009, and
prepared by Michael D. Conner, a government quality assurance representative,
“pending RFI’s” were discussed, including the RFI “for wall board to replace lath and
plaster” (R4, tabs 201 at 2544, 368 at 9957). The QAR makes no mention of the
specifics of that discussion. On July 22, 2009, Philip Kadala, a government
Environmental Engineer, responded to RFI 0009, stating “[t]he proposed substitution
of gypsum wallboard in lieu of plaster on lath of the interior of exterior walls is
acceptable provided the appropriate revisions to the specifications are prepared and
approved.” The government’s response did not mention installation or approval of a
suspended/drop ceiling in lieu of a drywall ceiling (as referenced in RFI 0009). (App.
supp. R4, tab 92 at 6439).
57. Neither the MATOC, nor the Task Order, specified installation of a drywall
ceiling, as referenced in RFI 0009 (findings 29, 40-41).
22
Sample Room and Transmittals
58. In July 2009, ECCI constructed a sample room in the Administration
Building which included an acoustical tile ceiling (R4, tabs 201 at 2549, 202 at 4074,
4077). Mr. Conner, and fellow quality assurance representative George Edgington,
subsequently observed the sample room (R4, tab 201 at 2750).
59. On August 7, 2009, the 65 percent design re-submittal, dated July 13, 2009,
was cleared for construction with a B-code (B - Cleared for Construction, except as
noted in attached comments) (app. supp. R4, tab 135, finding 16). The DrChecks
comments to the 65 percent design resubmittal did not mention the acoustical tile
ceiling system (app. supp. R4, tab 171).
60. On August 10, 2009, ECCI prepared ENG Form 4025, Transmittal No. 09
51 00-1, which contained product data for acoustical ceiling tile. In column “h,”
entitled “VARIATION,” the contractor indicated “N.” The transmittal was signed by
Freddie Malone, and certified “that the above submitted items have been reviewed in
detail and are correct and in strict conformance with the contract drawings and
specifications except as otherwise stated.” (R4, tab 234) On August 10, 2009, ECCI
prepared ENG Form 4025, Transmittal No. 09 51 00-2, which included acoustical tile
samples. In column “h,” entitled “VARIATION,” the contractor indicated “N.” The
transmittal likewise was signed by Mr. Malone, and certified “that the above submitted
items have been reviewed in detail and are correct and in strict conformance with the
contract drawings and specifications except as otherwise stated.” (R4, tab 235)
61. On August 13, 2009, the Government cleared the acoustical tile samples
(Transmittal 09 51 00-2) for construction with a C-code, requiring resubmission,
stating, “submit with complete shop drawings for suspended ceiling” (R4, tabs 39
at 1697, 236 at 7863).
ECCI’s 99 Percent Design
62. The 99 percent design drawings, dated October 20, 2009, stated “All
Ceiling Surfaces Shall Be Ceiling Board Panel” for the Administration Building (Note
3), the Shower and Latrine Building (Note 2), Barracks (Middle/Ordinary) (Note 2),
the Women’s Barracks (Note 2), and the Senior and High Barracks (Note 3). The
Training Facility called for a metal panel ceiling (Note 1). The Vehicle Maintenance
Building called for a combination of metal panel ceiling and ceiling board (Notes 1
and 3). For the Laundry building, the drawing stated “All Ceiling Surfaces Shall Be
Painted Plaster On Metal Lath” (Note 2). (App. supp. R4, tab 137)
63. Appellant prepared ENG Form 4025, Transmittal No. 09 51 00-2.1, dated
January 4, 2010, for the acoustical tile samples. In column “h,” entitled
23
“VARIATION,” the contractor indicated “N.” The transmittal was signed by
Mr. Malone, certifying “that the above submitted items have been reviewed in detail
and are correct and in strict conformance with the contract drawings and
specifications except as otherwise stated.” (R4, tab 39 at 1698) Appellant prepared
ENG Form 4025, Transmittal No. 09 51 00-3, dated January 17 2010, for the
acoustical ceiling shop drawings, product data, and samples. ECCI entered “N” in
block “h,” under the heading “VARIATION” for each of the items. The transmittal
signed by Mr. Malone, certifying “that the above submitted items have been reviewed
in detail and are correct and in strict conformance with the contract drawings and
specifications except as otherwise stated.” (R4, tab 39 at 1699)
Acoustical Tile Ceiling Dispute
64. By email and Serial Letter No. C-0027, both dated January 20, 2010,
Ken Parker, Area Engineer, informed Bob Anness, ECCI Construction Manager, that
the ceilings were not in conformance with the MATOC contract or the Task Order,
stating:
The 2’ X 2’ dropped in acoustical ceiling currently being
installed in the M&O Barracks does not meet the contract
requirements. Plaster and painted ceilings are required.
This deviation from the contract is not acceptable. Such a
ceiling in not in accordance with ANP policy. Such ceilings
have short and long term maintenance issues, things can be
concealed above them, concussions/vibrations from training
exercises munitions firing and controlled detonations could
shake them out of alignment, etc. Please provide your plan
of how you will correct this noncompliant work while still
meeting the scheduled contract completion date.
(R4, tabs 33, 266 at 8386)
65. The contractor’s January 20, 2010, Quality Control Report (QCR) states:
A hold order in work activity for drop ceilings in M&O
Barracks was implemented and waiting to resume after the
resolution has been made. Relevant specifications section
09 51 00 Acoustical Ceilings boards and grids. In
approved 65% design specify the used [sic] of plaster
board ceiling with metal lath while in 99% design,
alteration was made using the acoustical drop ceilings.
(R4, tab 202 at 4609)
24
66. By letter dated February 1, 2010, Chris Canon, ECCI Contracts Manager,
responded to the government’s Serial Letter No. C-0027. Mr. Canon stated, in part:
As you know, this is a design build project that has
required significant modifications to the buildings and
materials envisioned in the original Government provided
design documents in order to adapt to local site conditions
and locally available materials. The Government routinely
approves design adaptations during the normal course of
the design and submittal processes in accordance with
Section 01010, Paragraph 1.2, which states all site work
and facilities may require modification to meet site
conditions.
Mr. Canon stated that on August 7, 2009, the government approved “the suspended
grid ceiling system” in appellant’s “July 12, 2009 65% design submission,” approved a
mockup of the ceiling “which was inspected and approved on July 23, 2009 by
Michael Conners [sic] and George Edgington, and approved material submitted for the
ceiling tile on August 13, 2009. Mr. Canon also challenged the government’s position
that an ANP policy prohibits use of acoustical tile ceilings, and stated that an
acoustical tile ceiling was specified by the government in another MATOC task order.
(R4, tab 35)
67. By email to Mr. Anness dated February 3, 2010, Mr. Edgington, stated, in
part:
I have read the letter which was sent to the Corps of
Engineers and want to make a couple issues very clear.
This is not a Design Build project, it is site adapt. You are
not authorized to change the Baker Drawings without
approval. The reviewers do not necessarily review the
Baker Drawings during a review, they do review areas
which may have been approved for change. Then, they
review any site adapt information.
Mike Conner and I did look at the sample room, when, I do
not know. I am not even sure that the ceiling was installed
and if so, what was installed. Your letter states that the
sample room was looked at on 23 July 2009. According to
the COE daily reports Mike Conner had no site visits
3 Jun 09 - 24 Jul 09, no vehicle support to visit the site.
25
We did look at the sample room, however, it was not an
inspection and it did not happen on 23 Jul 09.
The letter states that the material submittal for the ceiling
tile was approved on 13 Aug 09 by Mike Conner. The
submittal was not approved, it was a code “C”, resubmit
complete shop drawing for suspended ceiling. Prior to this
date, on 9 Aug 09, you submitted for a ceiling suspension
system, specification 09 20 00, Metal Support System
Data. I reviewed this submittal and gave it a code “E” and
informed you to provide the information under the correct
specification. My comments were: “Provide the correct
specification section, 09 22 00, Supports for Plaster and
Gypsum Board. Provide correct shop drawings per the
specifications, submit for erection of metal framing,
provide a drawing with details, include material sizes,
thicknesses, and fastenings.”
It would appear that GWB 7 ceilings were planned by what
was submitted, then made up a second submittal for
acoustical ceilings on 13 Aug 09. When you provided me
with the resubmittal on 22 Jan 10, I gave it a code “E”, that
the system submitted did not meet the contract
requirements, Baker Drawings.
***
Maybe Tom needs to read these comments.
(R4, tab 265 at 8381-82) By email dated that same day, Mr. Anness responded,
“George, I totally agree ill [sic] forward these comments to him now. Once again
thanks.” (R4, tab 265 at 8381)
68. A QAR dated February 3, 2010, indicates that Mr. Edgington, and
Darren Dyer, also a government quality assurance representative, conducted a site visit
of the administration building and M&O (middle/ordinary) barracks. Mr. Dyer noted
that the ceiling grid was “not installed properly, wire should have 3 turns securing it
back to itself.” Mr. Edgington noted:
IF THE DECISION IS TO KEEP THIS CEILING
SYSTEM ALL WIRES WILL HAVE TO BE REDONE,
7 We assume that this acronym meant gypsum wallboard.
26
THERE IS ONLY A HOOK HOLDING UP THE
CEILING GRID, SHOULD BE AT LEAST THREE
WIRE WRAPS PER THE ASTM C 636. NO DECISION
HAS BEEN MADE YET, IF THE ACOUSTICAL
SYSTEM WILL STAY OR BE REPLACED WITH THE
SUSPENDED GWB CEILING SYSTEM. I SENT THE
CONTRACTOR ALL THE CORRECT SPEC SECTIONS
FOR GWB OR ACOUSTICAL CEILING SYSTEMS
PLUS THE ASTM FOR ACOUSTICAL SYSTEMS.
THE CONTRACTOR HAS RECEIVED ROOF
UNDERLAYMENT AND WILL START
INSTALLATION TOMORROW.
(R4, tab 201 at 2751)
69. By email dated February 3, 2010, Timothy Taylor, Resident Engineer,
Kandahar Vicinity Resident Office, contacted Joseph A. Wade, Chief, Contract
Administration Branch and Administrative Contracting Officer (ACO), stating, in part:
I have a question I was hoping you could answer for me.
Just to give you a quick background on this subject, our
JRAC BP site has started installing an acoustical ceiling
grid system throughout their buildings. The original Baker
design drawings and specifications show a plaster ceiling
system. The Ktr has submitted their acoustical system in
their designs. These designs were approved with no
comments on the ceiling system. The COE personnel at
that time did not correct the mistake and have basically
approved the mock ups, samples and submittals.
The problem we have is that the user wants the plaster
ceiling and not the acoustical ceiling. Based on the
previous approvals can we make them change back to what
was on the original Baker design and specifications
without any modification repercussions?
Any assistance in responding to the Ktr would be
appreciated.
(App. supp. R4, tab 134 at 22294)
70. By email dated February 3, 2010, Mr. Wade responded to Mr. Taylor,
stating:
27
If the submittal was not marked as a deviation requesting a
change from plaster to lay-in ceiling, then whatever the
original RFP for the project states is what we should
receive contractually, unless we have a mod changing the
ceiling system.
An approved submittal that deviates from the RFP does not
change the contract requirements unless that submittal was
checked "deviation" by the contractor when submitted.
(App. supp. R4, tab 134 at 22293)
71. By Serial Letter No. C-0029, dated February 3, 2010, Mr. Wade informed
ECCI:
The ceiling system that is currently installed is
noncompliant and does not meet with contract
requirements. You are hereby directed to install the ceiling
system per the contract requirements referenced above.
Please provide your plan to correct this work no later than
February 10, 2010.
The above does not constitute a Contracting Officer’s Final
Decision. You are afforded the opportunity to request such
a decision in accordance with FAR clause 52.233-1
entitled “Disputes.”
(R4, tab 36)
72. By email dated February 3, 2010, August Ochabauer, ECCI Vice President
of Construction, asked Mr. Anness “[w]hat the heck happened here?” (R4, tabs 266
at 8384, 369 at 99). By email that same day, Mr. Anness responded:
We were installing the ceiling that had been approved on
the 65% design and had no comments on the 99% design.
While I was on leave back in July our team led by
Skip Melton did a Mockup room with the drop ceiling,
drywall, Metal studs and insulation. The COE gave us a
verbal approval on it. We have been going by the 65%
approved on the project then the 99% design had been
submitted with no comments on the drop ceiling. The
way all of this was discovered was one afternoon
28
George Edgington was asking about the insulation how
we were installing it and went back to the COEs office
and went to look at his drawing the only drawing he had
was and [sic] old 35% drawing then he discovered all of
this. We had been installing the ceilings for a couple of
weeks and the COE was very pleased with it until George
found this mistake. ECCi had review [sic] the 65% and
the 99% drawing [sic] and no one had caught it including
me. That’s how all of this came about. RSCC change
[sic] the Baker drawing and no one caught it when the
designs were reviewed.
(R4, tab 266 at 8384)
73. By email dated February 5, 2010, Mr. Stoneham stated:
ALL,
I think we need to respond with a plan to install a
sheetrock ceiling as lath and plaster is not appropriate for
the roof structure as designed by Baker nor is it appropriate
for this application. If a "hard" ceiling is required, a
sheetrock ceiling should be installed.
We also need to end our letter that we plan on pursuing an
REA for this change since USACE had previously
“approved” the acoustical ceiling.
Joe,
I doubt that RSCC is capable of generating the submittal
for this change from the Baker drawings and
specifications. Can you or someone from the design team
in the conference room assemble this in time for the 10 Feb
response date?
(R4, tab 270 at 8399-400)
74. By email also dated February 5, 2010, Mr. Ochabauer responded to
Mr. Stoneham’s email, stating “[a]bsolutely correct. We need to do the design for the
sheetrock ceiling and have RSCC build it. Be advised that sheetrock and sheetrock
screws are very expensive in Afghanistan.” Mr. Stoneham responded to
Mr. Ochabauer by email dated February 5, 2010, stating “Bob had mentioned that
29
USACE wanted the sheetrock ceiling and are supportive of it. My intent was to show
them we are on board with it and moving in that direction.” (R4, tab 270 at 8399)
75. According to ECCI’s submittal registry, on or about November 6, 2009,
ECCI submitted its transmittal for the 99 percent design (app. supp. R4, tab 174).8
On February 10, 2010, USACE cleared ECCI’s 99 percent design submittal for
construction - which included the acoustical ceiling tile system - with a C-code
(C- Cleared for Construction, except as noted in attached comments, resubmission
required) (app. supp. R4, tab 174, finding 16). The DrChecks comments did not
mention the acoustical ceiling system in the 99 percent design submittal (app. supp.
R4, tab 176).
Alternate Ceiling Design Proposal
76. By email dated February 11, 2010, Bob Anness informed John Anness:
The contractor had changed the Baker Drawings without
and [sic] RFI. The COE did not cath [sic] it or ECCi did
not catch it. RSCC had already installed the ceilings in
M&O Barracks 1-8 and Admin. Bldg about 50%. The
COE at this time caught the mistake and issued Serial
Letter No.C-0027. Then we responded to this. The COE
responded with this other serial letter no.C-0029. We were
told to tear out all suspended ceilings. RSCC is going to
purpose [sic] to install light gage channel and drywall.
RSCC and August Ochabauer ECCi had a meeting and
August agreed to pay for one half of the suspended ceiling
and half if the light gage Chanel [sic] and drywall. John at
this time August (ECCi) did not agree to pay any labor.
(R4, tab 275)
77. On March 6, 2010, ECCI responded to Serial Letter No. C-0029, informing
the government that it would “seek an equitable adjustment for the additional time and
cost required to comply with this Change,” but would “remove the currently installed
ceiling as directed.” ECCI also proposed the installation of gypsum board in lieu of
plaster on metal lath:
ECCi believes the client would be better served if the
specified painted plaster on metal lath ceiling be replaced
8 It appears that the record does not contain a copy of the 99 percent design submittal
(ENG Form 4025).
30
with a painted gypsum board ceiling. Therefore we
propose to change the ceiling design to a painted gypsum
board ceiling. The gypsum board has previously been
approved with and [sic] A code on 17 Sep 09. For the
ceiling support system we will follow the Baker drawings
and specifications. For reference we have attached our
submittal for the metal support system that the gypsum
board would attach to.
(R4, tab 284 at 8498)
78. On March 7, 2010, USACE responded with Serial Letter C-0032 agreeing
to installation of gypsum board (R4, tab 286).
ECCI’s REA
79. By letter dated May 12, 2011, ECCI submitted a Request for Equitable
Adjustment (REA), in the amount of $912,631.00, based upon the removal and
replacement of the acoustical tile ceilings (R4, tab 39 at 1659-766).
80. By letter dated September 11, 2011, the Government requested ECCI
submit current cost or pricing data in support of its REA, pursuant to FAR 15.406-2,
Certificate of Current Cost or Pricing Data (R4, tab 40 at 1767).
81. By email dated September 14, 2011, ECCI informed the government it
would not submit a Certificate of Current Cost or Pricing data until its REA was
negotiated (R4, tab 41 at 1770).
82. By letter dated September 15, 2011, the government informed ECCI that
because its REA exceeded $750,000.00, the CO would request an audit by the Defense
Contract Audit Agency, which required the contractor submit a Certificate of Current
Cost or Pricing (R4, tab 41 at 1770).
83. By letter dated October 10, 2011, ECCI stated, in part:
Further to Serial Letter No. 0056, stating that as the ECCi
REA proposal costs exceeded $750,000.00, the
Government would be conducting an audit. ECCi would
now ask the Government to reconsider and accept a revised
pricing which is lower than the $750,000.00 threshold.
31
We have included a break down of our pricing in order for
the Government to perform a reasonableness of the revised
pricing.
1) ECCi Costs $265,377
2) Subcontractor Costs $351,571
2) [sic] Mark Ups $129,272
TOTAL $746,220
(R4, tab 354 at 9612)
ECCI’s Release of Claims
84. Glenn Sweatt, ECCI General Counsel, executed a Release of Claims dated
October 16, 2011, for all claims arising under Contract No. W917PM-07-D-0015,
Task Order No. 0006, with the exception of “REA for Dropped Ceilings, dated
October 10, 2011, in the amount of $746,220, M&O Barracks, Kandahar,
Afghanistan” (R4, tab 356 at 9622-24).
Government Denial of REA and ECCI Response
85. By letter dated October 30, 2011, Roberto Chevres, Chief Contract
Administration Branch, rejected ECCI’s REA in the amount of $746,220 (R4, tab 44).
86. By letter dated January 2, 2013, ECCI responded to Mr. Chevres’s letter,
stating, in part:
Since the receipt of Govt. Serial letter C-0058 on
October 30, 2011, ECC has performed an additional
analysis of the Subject REA. We have carefully
considered the Govt.’s arguments and are unable to agree
with the Govt. that the REA lacks merit.
ECCI has therefore updated the REA and provides legal
analysis for the Govt.’s consideration. We request that the
Contracting Officer provide his/her Final Decision
(COFD) after considering the additional information.
ECCI’s updated REA is for $925,216. This figure includes
the $912,631 provided by the May 12, 2011 REA and
$12,585 of fees from our counsel. The schedule extension
request of 100 days, identified in our May 12, 2011, [sic]
has not changed.
32
(R4, tab 45)
87. ECCI’s January 2, 2013, letter, included an “Updated REA Certification,”
signed by Mr. Sweatt, stating:
The following certification is provided in accordance with
the requirements of DFARS 252.243-7002 Requests for
Equitable Adjustment.
I certify that the request is made in good faith, and that the
supporting data are accurate and complete to the best of
my knowledge and belief.
(R4, tab 45 at 1795)
ECCI’s Request for Final Decision and Government Response
88. By letter dated February 4, 2013, ECCI retracted its January 2, 2013, letter,
and submitted a new REA and request for a final decision. The amount sought -
$925,216 - was the same as in its January 2, 2013 submission. (R4, tab 46 at 1796)
The submission included a “Certification” signed by Mr. Sweatt, dated May 11, 2011:
I certify that the revised request herein (under Prime
Contract No. W917PM-07-D-0015, Task Order 006, REA
for Dropped Ceilings, M&O Barracks in Kandahar,
Afghanistan) is made in good faith, and that the supporting
data are accurate and compete to the best of my knowledge
and belief (as of May 11, 2011).
(R4, tab 46 at 1812) (underlining in original) This certification previously was
submitted to the government by appellant with its letter dated May 12, 2011 (R4, tab
39 at 1664).
89. By letter dated June 6, 2013, ECCI noted it had not received from the CO a
final decision on its February 4, 2013, REA, and opined that its failure to provide “a
formal Disputes Clause certification” may have been the reason. ECCI submitted with
its June 6, 2013, letter, a claim certification and requested a CO’s final decision on its
February 4, 2013, REA (which also had requested a final decision). (R4, tab 2 at 16)
The certification was signed by Mr. Sweatt on May 23, 2013, and stated:
I certify that the claim is made in good faith; that the
supporting data are accurate and complete to the best of
33
my knowledge and belief; that the amount requested
accurately reflects the contract adjustment for which ECC
believes the Government is liable; and that I am duly
authorized to certify the claim on behalf of the Contractor.
(R4, tab 2 at 17) We find that this submittal was based on the same operative facts as
the October 10, 2011 REA.
90. By letter dated July 10, 2013, CO Tina A. Frazier responded to ECCI’s
earlier January 2, 2013, REA and request for a final decision, which ECCI already had
withdrawn and replaced with its February 4, 2013, REA and request for final decision.
Ms. Fraizer’s letter stated, in part:
This letter is issued in response to your request for a
Contracting Officer’s Final Decision (COFD) in regard to
ECC International’s (ECCI) Request for Equitable
Adjustment (REA), reference (k). This REA requests an
additional $925,216 and one hundred (100) additional days
to the contract duration. As mentioned by ECCI’s request
for COFD in ref (k), the $925,216 figure includes
$912,631 previously provided by ECCI’s REA ref (d), and
an additional $12,585 for counsel fees. ECCI originally
submitted an original REA on 12 May and a revised REA
on 10 October 2011, references (f) and (i), respectively.
(R4, tab 47 at 1813)
91. Ms. Frazier denied ECCI’s REA, stating, in part:
The Suspended Ceiling issue of the above referenced
contract has been reviewed as requested. Based on the
above facts and analysis, the Request for Equitable
Adjustment is determined to be without merit. The
contractor’s additional $12,585 counsel fees which are
mentioned in the first paragraph of this letter are also costs
without merit. See FAR 31.205-47 Costs related to legal
and other proceedings Reference (n) paragraph (f).
Additionally, the contractor has requested a Contracting
Officer’s Final Decision (COFD). However, the contractor
has not provided a certified claim in accordance with the
Disputes clause of the contract. Accordingly, the
contractor’s request for a COFD is invalid. This letter
34
issuance is the Contracting Officer’s determination
regarding your Request for Equitable Adjustment.
Regarding any further actions on this matter, you are
referred to FAR Clause 52.233-1 Disputes, reference (a).
(R4, tab 47 at 1817)
92. The CO did not issue a final decision on ECCI’s June 6, 2013, claim, and
the contractor filed its notice of appeal with the Board on the basis of a deemed denial
(R4, tab 1 at 6).
DECISION
I. The Government’s Motion to Dismiss
The government’s Rule 11 brief includes a motion to dismiss appellant’s appeal
for lack of jurisdiction, alleging improper claim certification (gov’t br. at 2-3). To
understand the jurisdictional quagmire proffered by the government, it is important to
note that the claim at issue in this appeal, according to the government, is ECCI’s
February 4, 2013, request for a final decision, in the amount of $925,216, which was
certified on May 23, 2013 (gov’t br. at 2). It also is important to note that on
October 16, 2011, ECCI released all claims arising pursuant to the Task Order, except
the “REA for Dropped Ceilings, dated October 10, 2011, in the amount of $746,220”
(finding 84).
The government maintains that the May 23, 2013, claim certification is
defective vis-à-vis the October 10, 2011, letter, both in the amount claimed “and in the
supporting documentation,” because the May 23rd certification was submitted with a
claim that exceeded by almost $200,000 the amount that ECCI specified in its release
of claims (gov’t br. at 2-3). Specifically, the government argues, “[s]ince Mr. Sweatt
signed the October 16, 2011, Release of Claims stating that the only exception to the
Release was the REA in the amount of $746,220, the Certification Statement in the
Claim at issue in this matter is inaccurate. The only claim that could be maintained
under this Contract after the Release of October 16, 2011, was the specific claim of
October 10, 2011, in the amount of $746,220.” (Gov’t br. at 2) The government
likewise argues that ECCI’s claim was not certified in good faith because the claim
amount certified exceeded the amount ECCI identified in its October 10, 2011, REA
(gov’t br. at 2-3).
The record establishes that the government was less than exacting in its
handling of ECCI’s REA and its various requests for a final decision. The CO issued a
letter dated July 10, 2013, denying ECCI’s January 2, 2013, REA and request for a
final decision, even though ECCI had, by letter dated February 4, 2013, withdrawn the
January 2, 2013, REA, and substituted it with a new REA and request for a final
35
decision (findings 88, 90). The CO’s letter rejected the January 2, 2013, REA, stating
that, although ECCI requested a CO’s final decision, ECCI had failed to provide “a
certified claim in accordance with the Disputes clause of the contract,” and, therefore,
“the contractor’s request for a COFD is invalid” (finding 91). Although the CO’s
July 10, 2013, letter, was correct in that the January 2, 2013, submission (and for that
matter the February 4, 2013, revised claim) included a certification that did not
comport with the contract’s Disputes clause, FAR 52.233-1(d)(2)(iii),9 the CO’s failed
to recognize that, by letter dated June 6, 2013, ECCI had previously provided the
requisite claim certification, signed by ECCI’s general counsel on May 23, 2013
(findings 88-89).
ECCI’s original REA, dated May 12, 2011, requested $912,631.00 (finding 79).
To avoid the necessity of a DCAA audit, ECCI lowered the amount to below
$750,000.00, via its October 10, 2011, letter (finding 83). Subsequent to the
government’s October 30, 2011, letter, rejecting ECCI’s REA in the amount of
$746,220.00, ECCI responded with a letter dated January 2, 2013, updating its REA in
the amount of $925,216.00, and requesting a CO’s final decision. The January 2, 2013,
claim included both the $746,220.00 sought in ECCI’s October 10, 2011, letter, as well
as additional amounts sought in its May 12, 2011, REA, which ECCI had deleted to
bring its claim under $750,000.00. (Finding 86)
The government argues that “[t]he Claim at issue in this matter is not based on
the REA excepted from the release. It is based on an REA dated February 4, 2013, in
the amount of $925,216” (gov’t br. at 4, citing R4, tab 2 at 23). ECCI counters the
government’s argument, noting, correctly, that the February 4, 2013, claim, is based
upon the same operative facts as the October 10, 2011, REA (app. reply br. at 2-3,
citing Placeway Constr. Corp. v. United States, 920 F.2d 903, 907 (Fed. Cir. 1990)).
We agree that ECCI’s February 4, 2013, claim, certified by ECCI on May 23, 2013,
encompassed ECCI’s October 10, 2011, REA, and that the two submissions present
the same “claim.”
Government correspondence establishes that the government viewed ECCI’s
January 2, 2013, request for a final decision as including costs sought by ECCI in its
October 10, 2011, REA. The government’s July 10, 2013, letter, discussing
appellant’s request for a final decision, did not mention ECCI’s earlier release, did not
raise it as a basis for denying the claim, and did not object to the increase in that claim
9 The REA certification submitted by ECCI, which set forth two of the required CDA
certification elements, was correctable pursuant to 41 U.S.C. § 7103(b)(3)).
Kirlin Builders, LLC, ASBCA No. 61901, 20-1 BCA ¶ 37,485 at 182,072
(citing Hejran Hejrat Co. v. U.S. Army Corps of Eng’rs, 930 F.3d 1354, 1359
(Fed. Cir. 2019); Air Services, Inc., ASBCA No. 59843, 15-1 BCA ¶ 36,146
at 176,425-27).
36
to $925,216.00, as exceeding the amount reserved by ECCI in its release. Indeed, the
CO noted that ECCI’s request for $925,216.00 included amounts previously sought in
ECCI’s “original REA on 12 May and a revised REA on 10 October 2011.”
(Findings 90-91) 10
We do not agree with the government’s assertion that, because ECCI’s May 23,
2013, certification was for an amount in excess of $746,220 – the amount excepted by
the release – the certification was ipso facto not in good faith. The government cites
no legal authority for such a proposition and we know of none. Mr. Sweatt, in signing
the certification, attested to his belief that the claim was made in good faith, that the
supporting data was accurate and complete to the best of ECCI’s knowledge and
belief, and that the amount requested accurately reflected the adjustment ECCI
believed the government was liable. Whether ECCI is entitled to more than the
amount excepted by the release is a question of law. Cubic Defense Applications, Inc.,
ASBCA No. 58519, 18-1 BCA ¶ 37,049 at 180,371 (scope of release is question of
contract interpretation); Kirk Bros. Mechanical Contractors, Inc., ASBCA
No. 43347, 93-1 BCA ¶ 25,372 at 126,360 (interpretation of release involves question
of law); Reinhold Const., Inc., ASBCA No. 33313, 90-1 BCA ¶ 22,453 at 112,724
(increase in claim amount on appeal “must be reasonably based on information not
readily available at the time the claim was submitted and not the result of deliberate
understatements or careless initial appraisals of the claim”) (citing Tecom, Inc. v.
United States, 732 F.2d 935, 937–938 (Fed. Cir. 1984)).11
We have jurisdiction to consider appellant’s challenge to the CO’s deemed
denial of ECCI’s claim. The government’s motion to dismiss is denied.
II. ECCI’s Claim for Additional Costs
A. MATOC and Task Order Design Requirements
10 In addition to the affirmative defense of release, the government argues that
appellant’s claim is barred by waiver and accord and satisfaction (gov’t br.
at 3-6). All three affirmative defenses are based upon the premise that
appellant’s February 4, 2013, claim, cannot be maintained here because ECCI
released all claims except its October 10, 2011, REA. Because we found that
the February 4, 2013, claim, and the October 10, 2011, REA, are based upon
the same operative facts (finding 89), we reject the government’s affirmative
defenses as based upon an inaccurate factual predicate.
11 Given our decision on the merits, we need not address the potential monetary impact
to ECCI’s claim of its earlier request that the government “reconsider and
accept a revised pricing” below “the $750,000.00 threshold” (findings 82-83).
37
There is no dispute that the Baker drawings set forth in the Task Order specified
installation of ceilings constructed of plaster on metal lath (finding 40).
Contemporaneous, internal contractor emails establish that ECCI’s subcontractor,
RSCC, was responsible for the decision to install the suspended acoustical tile ceiling
(findings 72, 76).12 Documents RSCC prepared, and ECCI submitted to the
government, did not indicate that the acoustical tile ceiling included in its design was a
variation of Task Order minimum requirements reflected in the Baker drawings
(findings 31, 47, 51-52).
ECCI argues it was not required to notify the government of this variation in its
design because the Task Order was design-build, which thereby provided ECCI with
the discretion necessary to design the project however it saw fit (app. br. at 25-26, 29).
In its motion for summary judgment, the government identifies the Task Order as a
design-bid-build, with a “site-adapt” component, requiring the contractor to construct
the project utilizing the design provided in the Task Order, with certain modifications
necessary to adapt the design to the specific site (gov’t mot. at 14; see also finding 67).
As noted by the United States Court of Federal Claims in Fluor Enterprises,
Inc. v. United States, 64 Fed. Cl. 461, 482 (2005) (internal citation omitted):
“Design–Bid–Build” and “Design–Build” are industry
terms referring to the method by which infrastructure
projects are procured. Design-bid-build is a “segmented
delivery strategy in which design is fully separated from
construction.” In this model, the services of a design
professional are procured first, and the building contractor
is selected later, after the design work is completed.
Conversely, in the design-build model, both design and
construction services are procured from a single entity
(which might be a single construction firm with in-house
12 Appellant alleges in its complaint that ECCI “reasonably interpreted” and
“reasonably bid design and installation of acoustical tile ceilings for the
buildings required by the RFPs” (finding 45). The sworn statement of
David Gunn, one of ECCI’s program managers, states “I affirm that it was
always ECCI’s intent to propose and install acoustical ceiling tiles, and not
plaster on lath,” although he provides no factual context for his statement
(app. supp. R4, tab 163 (1/25/2019 sworn statement of D. Gunn at 7 ¶ 29)).
Even assuming RSCC submitted its proposal contemplating installation of
an acoustical tile ceiling (the record copy of RSCC’s proposal contains no
breakdown of its price (R4, tab 200)), ECCI’s internal emails suggest it did
not appreciate the import of RSCC’s ceiling choice until after award, when
the government raised the issue (findings 72, 76).
38
design professionals or a team of construction and design
professionals assembled for a project) in a single
procurement process.
The distinction between design-build and design-bid-build is somewhat
analogous to the distinction between performance specifications, which “set forth an
objective or standard to be achieved, and the contractor may use its ingenuity to select
the means to achieve that objective or standard of performance while assuming
responsibility for meeting contract requirements” and design specifications, “which
describe in precise detail the materials to be incorporated and the manner in which the
work is to be performed.” American Ordnance LLC, ASBCA No. 54718, 10-1 BCA ¶
34,386, at 169,780 (citing J. L. Simmons Co. v. United States, 188 Ct. Cl. 684, 689,
412 F.2d 1360, 1362 (1969)). Of course, “[c]ontracts may have both design and
performance characteristics; the former limit the contractor's flexibility, while the
latter grant some leeway in how the work is to be accomplished.” American
Ordnance, 10-1 BCA at 169,780. Ultimately, the issue to be decided is not the label
accorded to the contractual provisions, but rather how much discretion those
contractual provisions grant the contractor in designing the project. Blake Constr. Co.,
Inc. v. United States, 987 F.2d 743, 746 (Fed. Cir. 1993) (“It is the obligations
imposed by the specification which determine the extent to which it is ‘performance’
or ‘design,’ not the other way around).”
The MATOC envisioned that some task orders would include “the execution of
design-build construction work,” and contained numerous specifications referencing
elements of design-build contracting (findings 1, 3-4, 7, 9, 14-18, 20-21, 23).
However, the MATOC did not suggest that design-build was the sole contracting
vehicle. Indeed, the MATOC scope of work prefaces, “where design-build services
are required the contractor shall employ the services of architect/engineering
professional” (finding 3 (emphasis added)).
The Task Order scope of work referenced a design-bid-build approach, but
anticipated that modifications to the technical requirements would be necessary to “to
meet site conditions” (findings 34-35). The Task Order contained “minimum
requirements,” although the contractor was “encouraged to propose alternate design or
products (equipment and material) that are more commonly used in the region”
(finding 38). The Task Order also provided that “site improvement work shall include
the preparation of design documents and the subsequent construction of the site
improvements described” within in the Task Order technical requirements and
drawings, “with modifications to fit the actual site selected” (finding 34). Indeed,
ECCI’s design narrative, prepared by RSCC, its subcontractor and designer, likewise
recognized the requirement to site adapt the design based upon site conditions
(finding 51).
39
The MATOC required the contractor to ensure and verify to the government that
its design was in strict conformance with its requirements, and provide sufficient detail
to allow a ready determination by the CO of compliance or deviation (findings 6-9, 14,
21, 23-25, 28). As noted above, RSCC made the decision to install an acoustical tile
ceiling in most of the project buildings, rather than the Task Order-specified lath and
plaster ceiling (findings 51-52, 72, 76). Internal contractor emails establish that ECCI’s
own construction manager was unaware of RSCC’s design deviation from the Task
Order requirements until notified by the government (findings 67, 72, 76).
Implementation of RSCC’s design decision by ECCI was not in accordance
with MATOC and Task Order requirements requiring the contractor to notify the
government that its design did not meet minimum requirements (findings 5, 11, 13, 28,
30, 34, 38). For example, the initial 65 percent design submittal drawings specified
installation of an acoustical tile ceiling in a majority of the project buildings
(findings 49-50). Yet appellant certified that its initial 65 percent design submittal
drawings contained no variation and was “correct and in the strict conformance with
the contract drawings and specifications except as otherwise stated” (finding 48). This
certification, as it pertained to the type of ceiling ECCI planned to install, was
incorrect, because the Task Order specified lath and plaster, and appellant’s 65 percent
design submittal drawings specified acoustical tile. In contrast, ECCI’s 65 percent
design narrative and structural design calculations were based upon, and identified the
use of, plaster ceilings (findings 51- 53).13
B. MATOC and Task Order Notification Requirements
In addition to the requirement that ECCI ensure and certify its submittals were in
strict conformance with the drawings and specifications (findings 6-7, 14, 23), the
MATOC also placed the onus on ECCI to affirmatively notify the government of any
variations in its design (findings 5, 13, 28, 30). The Task Order likewise imposed upon
the contractor the “responsibility to show the equivalency of the alternate standard” and
13 Another example of ECCI’s noncompliance concerns MATOC paragraph 3.2.2,
which required ECCI maintain a construction submittal register “to control
all construction submittals throughout the life of the contract” (finding 12).
In October 2008, ECCI provided the government a submittal registry listing
over 200 specifications, including a specification for acoustical tile ceilings
(findings 43-44). On the accompanying ENG Form 4025, ECCI certified
“the above submitted items have been reviewed in detail and are correct and
in the strict conformance with the contract drawings and specifications
except as otherwise stated” (finding 43). Inclusion of the acoustical tile
ceiling specifications on the registry was not in strict conformance with the
Task Order, as the Task Order drawings did not specify installation of that
ceiling type.
40
the CO was required to “approve its use” (findings 34, 38). The Task Order also
specified that any variation “must be approved by the Contracting Officer” (finding 38).
Appellant admits that the MATOC “outlines an extensive approval process for
proposing and submitting design variations” (app. cross-mot. at 28). Appellant argues,
however, that these MATOC provisions do not apply to the Task Order because
paragraph 1.2 of the Task Order Technical Requirements encourages the contractor to
propose alternate designs or products commonly used in the region (app. cross-mot.
at 28; app. br. at 23).
Appellant’s argument fails to take into account the first sentence of paragraph
1.2 of the Task Order Technical Requirements, which states, “[t]hese design and
product requirements are minimum requirements.” This additional sentence helps
explains why paragraph 1.2 also requires the contractor “submit information as
requested by the Contracting Officer to make a comparison of the proposed
alternate,” and that “[a]ll variations must be approved by the Contracting Officer.”
(Finding 38)
Appellant argues that approval of an alternate design pursuant to paragraph 1.2
“simply requires the contractor to submit information ‘as requested by the Contracting
Officer’” (app. br. at 23). Appellant’s argument leaves unanswered the question how
the CO would know to even request such information if the contractor failed to notify
the government that its design was an alternate to Task Order minimum requirements.
BYA Int’l LLC, ASBCA No. 58031, 13-1 BCA ¶ 35,424 at 173,178 (contractor failed
to notify government of design variation seeking substitution of metal walls). The
MATOC required the contractor to insure that submittals complied with contract
requirements, were complete, and in sufficient detail to allow the CO to determine
compliance (findings 8-9).
In support of its interpretation of the Task Order’s otherwise seemingly-
unambiguous notice requirement, appellant relies upon our decision in Highland Al
Hujaz Co., Ltd, ASBCA No. 58243, 16-1 BCA ¶ 36,336. Appellant argues that
although our decision did not address the same technical requirement as the one
at issue here, we “paraphrased a substantially similar provision that likewise
‘encouraged [the contractor] to propose alternate designs or products that were more
commonly used in the region,” and that “once a design or product was approved, any
variations would require prior approval by the CO” (app. cross-mot. at 29). Appellant
draws a distinction between an alternate design and a design variation, suggesting that
the requirement in the Task Order that the contractor notify the government of design
variations, applied only to alternative designs that already were approved, and not to
any alternate design change to the original, Task Order minimum requirements (app.
br. at 26-27). According to appellant, “there can be no Variation until the design is
approved” (app. br. at 27).
41
Appellant’s argument adds restrictive language that simply is not present in
paragraph 1.2. The notion that, based upon this Board’s paraphrasing of a “similar”
clause in an unrelated contract, ECCI was free to make changes to the Task Order’s
minimum requirements without approval of the CO - even though the Task Order here
plainly states that variations require CO approval - strains credulity. Moreover, the
contract clause in Highland (as paraphrased by the Board) provided that “[i]n
proposing such an alternate design or product, appellant was required to submit such
information as would allow the CO to make a comparison of the proposed alternate
design or product to the Corps’ minimum requirements.” 16-1 BCA at 177,154.
Similar to paragraph 1.2 of the Task Order Technical Requirements, paragraph
1.1 instructs that “[t]he Contractor’s design and construction must comply with
technical requirements contained herein” (finding 37). Yet appellant ignores this
requirement when quoting paragraph 1.1 in its brief (app. br. at 2, 21-22). There can
be little doubt that the MATOC and Task Order required appellant to notify the
government of design changes to Task Order minimum requirements. Fortec
Constructors, ASBCA No. 26802, 83-1 BCA ¶ 16,374 at 81,407 (“Appellant did not
give the notice of variances required by the clause nor show that the Government
representatives who reviewed the submittal were otherwise consciously aware of such
variances”).
Appellant offers a similar, overly restrictive reading of paragraph 2.1 of the
Task Order Scope of Work, with a selective quotation of that provision, stating, “[t]he
contractor shall design and construct the site improvements and facility modifications
to meet site conditions . . .” (app. cross-mot. at 7, citing R4, tab 19 at 1823) (emphasis
supplied by appellant). A more fulsome reading of paragraph 2.1 provides, “[t]he
contractor shall design and construct the site improvements and facility modifications
to meet site conditions as a design-bid-build contract and shall be in accordance with
the requirements stated in Section 01015: Technical Requirements” (finding 35).
ECCI was not free simply to ignore the Task Order’s minimum requirements.
Appellant proffers the sworn statement of Mr. Gunn, stating that he interpreted
the Task Order Scope of Work, paragraph 1.1, and Task Order Technical
Requirements (01015), paragraph 1.2, “to mean that ECCI was to act as the design-
builder on the project” (app. br. at 2, citing app. supp. R4 tab 163 (1/25/2019 sworn
statement of D. Gunn at 1-2)). However, assuming Mr. Gunn so interpreted the Task
Order, this even more so should have led ECCI to conclude that it was required to
follow MATOC specifications requiring the design-build contractor verify whether its
design was in strict conformance with contract requirements (findings 6-7, 14, 23), and
notify the government accordingly if it was not.
42
It is well settled that “[w]here contract provisions are clear and unambiguous,
they must be given their plain and ordinary meaning,” Alaska Lumber & Pulp Co., Inc.
v. Madigan, 2 F.3d 389, 392 (Fed. Cir. 1993) (citing George Hyman Constr. Co. v.
United States, 832 F.2d 574, 579 (Fed. Cir. 1987)). “When the contractual language is
unambiguous on its face, our inquiry ends and the plain language of the Agreement
controls.” Coast Fed. Bank, FSB v. United States, 323 F.3d 1035, 1040-1 (Fed. Cir.
2003). The MATOC and the Task Order are clear; appellant was required to obtain
approval from the CO for design changes to the Task Order’s minimum requirements,
whether presented as a variation set forth in an ENG Form 4025 submittal or as an
alternate design submittal. We decline appellant’s invitation to hold otherwise.
C. No Cost Change
ECCI argues that it was not required to notify the government of its change to
the Task Order minimum requirements because it was “empowered” to submit its
alternate design as a no-cost change (app. br. at 21-23). There is no dispute that the
Task Order encouraged ECCI to submit alternate designs. However, appellant cites no
provision that expressly states the contractor need not inform the government of an
alternate design to a Task Order minimum requirement if the alternate design involves
a no cost change.
Paragraph 3.6.4 of the MATOC, entitled “Variations,” required the contractor to
justify variations set forth in design documents or construction submittals at the time
of submission (finding 13). Appellant labels the approval process in paragraph 3.6.4
“inapplicable” here (app. cross-mot. at 29). Appellant cites Mr. Gunn’s interpretation
of paragraph 3.6.4 as not applying “to no-cost modifications to the design undertaken
to comply with the requirements of the particular site” (app. br. at 4, 26). However,
paragraph 3.6.4 contains no such restrictive language. Indeed, it states, in part, “[i]f
design documents or construction submittals show variations from the contract
parameters and/or requirements, the Contractor shall justify such variations in writing,
at the time of submission. Additionally, the contractor shall also annotate block ‘h’
entitled ‘variation’ of ENG FORM 4025.” (Finding 13)
Appellant attempts to draw a distinction between MATOC paragraph 1.2.1,
which discusses design submittals, and paragraph 1.2.2, which discusses construction
submittals, noting that, unlike paragraph 1.2.2, paragraph 1.2.1 makes no mention of
“VARIATIONS.” According to ECCI, this suggests a contractor is not required to
notify the government of variations contained in design submittals (app. br. at 3-4,
25-26). Paragraph 3.6.4 makes no such distinction, and, in fact, mentions both “design
documents” and “construction submittals” (finding 13). Moreover, MATOC section
01 33 00, SUBMITTAL PROCEDURES, paragraph 1.3.1, requires approval by the
contractor’s own designer of record of “any deviations from the solicitation, the
43
accepted proposal, or the completed design,” including those reflected in “SD-05
DESIGN DATA submittals” (finding 24).
Appellant argues that MATOC paragraph “3.7.4.1 specifically allows for
no-cost changes to the ‘drawings and specifications’ as a result of Government
comments, without submitting such changes as Variations” (app. br. at 27). Appellant
likewise argues that during contract performance, the government “directed and
approved dozens of no-cost changes to the Baker Drawings during the design review
process, without submission as Variations and without Contracting Officer approval”
(app. br. at 28). The fly in the ointment that is appellant’s argument, however, is that
in both scenarios proffered by appellant, the government was on notice of the design
variation, and, at times, was even the proponent of the change. As for the acoustical
tile ceiling design, the record reflects that ECCI failed to realize its design did not
comply with Task Order requirements until the government discovered the non-
conformance and raised the issue with ECCI (findings 72, 76).
The factual predicate of appellant’s assertion that its acoustical tile ceiling
design was a no cost change likewise is incorrect. As noted by the government, “[t]he
contention that this change could properly be treated as one that would not affect the
contract price is entirely inconsistent with the [appellant’s] statements regarding
construction of lath and plaster ceilings as compared to acoustical ceilings (gov’t br.
at 9).” 14 Indeed, appellant’s admits as much in its brief, stating “acoustical ceilings
were both more cost effective and quicker and more efficient to install than the
suspended lath and plaster ceilings in the Baker drawings” and “installation of
suspended lath and plaster ceilings is difficult and requires a specialized trade skill and
experience to install properly, which was not generally available in Afghanistan” (app.
br. at 5).
There can be no dispute that, were ECCI no longer required to install lath and
plaster ceilings, installation of an acoustical tile ceiling would have resulted in a
decrease in cost of time and materials. Accordingly, the change in ceiling type was
not at no cost. HCS, Inc., ASBCA No. 60533, 16-1 BCA ¶ 36,502 at 177,855
(“contract price must be equitably adjusted when a change in the contract work causes
an increase or decrease in the cost of performance of the work”); see also Penner
Constr. Co., Appeal Nos. 17607, 17608, 73-2 BCA ¶ 10,048 at 47,141 (government
entitled to benefit of its bargain even though it approved contractor drawings, where
“error was induced by appellant who should not profit from it”).
14 The government cites Mr. Gunn’s sworn statement stating that construction of a lath
and plaster ceiling is more difficult and costly than construction of an acoustical
tile ceiling (gov’t br. at 9, citing R4, tab 368 at 6 (see also app. supp. R4,
tab 163 (1/25/2019 sworn statement of D. Gunn at 6))).
44
D. RFI 0009
Appellant argues that it provided “notice of the deviation from the Baker
Drawings” through submission of RFI 0009, thus providing the government with
“actual knowledge and formal notice of ECCI’s intent to use acoustical ceiling system
in lieu of the plaster and lath system specified in the Baker Drawings” (app. br. at 14,
citing EM Systems, Inc., ASBCA No. 51782, 2001-2 BCA ¶ 31,586 at 156,074).
Appellant’s argument is incorrect for several reasons.
First, by its own terms, RFI 0009 concerned section “3.4 Exterior Building
Envelope,” as referenced in the Task Order solicitation, and addressed the proper
coating of the interior side of exterior walls (findings 54-55). RFI 0009 inquired
whether “gypsum board (drywall) [is] acceptable in lieu of plaster over metal lath” on
the interior side of exterior walls, which allegedly would be consistent with other
buildings in the area that were not part of this project (finding 54). The RFI did not
specifically cite or even reference the MATOC or Task Order ceiling specification.
Although the RFI stated that “a suspended/drop ceiling would be used rather than
drywall ceiling,” even assuming that “suspended/drop ceiling” is a reference to an
acoustical tile ceiling, the Task Order here did not call for drywall ceilings, but, rather,
called for installation of plaster and lath ceilings. (Finding 54)
Second, appellant suggests that “the Government specifically approved the
no-cost change proposed in RFI No. 0009, ‘provided the appropriate revisions to the
specifications are prepared and approved,’” (app. br. at 14). A more complete reading
of the government’s “approval” states: “[t]he proposed substitution of Gypsum
wallboard in lieu of plaster on lath on the interior of exterior walls is acceptable
provided the appropriate revisions to the specifications are prepared and approved.”
The government’s response addressed only the section raised by appellant, 3.4.2,
interior wall finish. (Finding 56)
Third, Mr. Kadala, the government employee who signed the RFI, was an
environmental engineer. The record contains no evidence that Mr. Kadala was a
Contracting Officer’s Representative (COR) or had authority to change contract
requirements, and appellant does not so argue. Indeed, the RFI form expressly
cautioned that an RFI is not the proper vehicle for requesting a change to the contract,
stating, it “does not provide authority to proceed with additional work,” and that if the
contractor believes the RFI response results in a changed condition, the contractor
must provide written notice to the COR (finding 54).
ECCI suggests that because the government did not address appellant’s
statement that “a suspended/drop ceiling would be used rather than drywall ceiling” in
its response to the RFI, “the Government is estopped from claiming that its silence
regarding the ceilings should be read as a disapproval of the proposed acoustical
45
ceiling” (app. reply br. at 12) (citing Mabus v. Gen. Dynamics C4 Sys, 633 F.3d 1356,
1359 (Fed. Cir. 2011)). To establish equitable estoppel against the government, ECCI
must demonstrate “affirmative misconduct” by the government. United Pacific
Insurance Co. v. Roche, 401 F.3d 1362, 1366 (Fed. Cir. 2005). The facts as proffered
by appellant in no way meet that stringent standard.
Notwithstanding ECCI’s suggestion to the contrary, RFI 0009 was not
“sufficiently clear and formal to put the Government on notice of the deviation or
variation” (app. br. at 13, quoting EM Systems, 2001-2 BCA at 156,074). Moreover,
unlike the facts in EM Systems, the government here did not express an understanding
that it had approved a variation from the Task Order minimum requirements.
EM Systems, 2001-2 BCA at 156,073 (finding that government “knowingly approved
the variance”). To the extent appellant truly relied upon RFI 0009 as notice to, and
government approval of, its installation of an acoustical tile ceiling instead of drywall
(which was not even the type of ceiling specified in the Task Order), such reliance was
misplaced. 15 RFI 0009 in no way complied with MATOC and Task Order
requirements, which placed the onus on ECCI to affirmatively notify the government
of any variation between minimum requirements and the contractor’s proposed design
(findings 5, 13, 28, 30, 38).
E. Alleged Government Approval of ECCI’s “Alternate” Design
Appellant argues that the government waived strict compliance with Task Order
requirements by approving drawings and samples submitted by ECCI reflecting the
acoustical tile ceiling, and by the failure of government quality assurance
representatives to object when the acoustical tile ceiling was included in a sample
room constructed by appellant (app. br. at 8-11, 15-19). To establish waiver, ECCI
must demonstrate that the CO knowingly rescinded the government’s right to require
compliance with a Task Order minimum requirement. Swinerton Builders Northwest,
ASBCA No. 57329, 17-1 BCA ¶ 36,738 at 179,014 (internal citations omitted). This
especially is true where “the express terms of the contract require that such a waiver be
in writing.” Id. Here, the MATOC and Task Order required written notification of
contract changes (findings 13, 28, 30, 38). Appellant proffers no evidence of a written
agreement between the parties specifically assenting to ECCI’s variation of the Task
Order ceiling requirements.
15 The import of RFI 0009, as evidence of notice and approval of the acoustical tile
ceiling, is questionable also given appellant’s admission that the parties only
became aware of the RFI in February 2019, subsequent to filing the parties’
cross-motions for summary judgment (app. br. at 7). Indeed, Mr. Gunn,
ECCI’s project manager, testified that he first became aware of the RFI the
morning of his deposition in February 2019 (app. br. at 7; app. supp. R4,
tab 179 at 22-23).
46
The record establishes that appellant did not inform the government that its
design reflected a deviation or variation in the Task Order minimum requirements
(findings 31, 47, 51-52), and that appellant did not know that it’s design was not in
conformance with the Task Order requirements until it was informed so by the
government (findings 72, 76). The government first informed ECCI on January 20,
2010, that the acoustical tile ceiling was not in conformance with Task Order
requirements (finding 64). ECCI took the position that the Task Order was “a design
build project that has required significant modifications to the buildings and materials
envisioned in the original Government provided design documents in order to adapt to
local site conditions and locally available materials” (finding 66). The government
responded, “[t]his is not a Design Build project, it is site adapt. You are not authorized
to change the Baker Drawings without approval.” Tellingly, in a responsive email,
Mr. Anness, ECCI’s Construction Manager, Mr. Anness stated “I totally agree.”
(Finding 67)
The government discussed the issue internally on February 3, 2010, with the
resident engineer expressing his concern that the design was approved with no
comments on the ceiling system, and that “COE personnel at that time did not correct
the mistake” and “basically approved the mock ups, samples and submittals”
(finding 69). The ACO responded to the resident engineer’s concerns that same day,
stating, “[a]n approved submittal that deviates from the RFP does not change the
contract requirements unless that submittal was checked ‘deviation’ by the contractor
when submitted.” (Finding 70) Also that same day, the ACO informed ECCI that the
ceiling system as installed was noncompliant with the Task Order requirements and
directed ECCI “to install the ceiling system per the contract requirements” (finding 71).
It is against this backdrop that, also on February 3, 2010, August Ochabauer,
ECCI Vice President of Construction, asked Mr. Anness “[w]hat the heck happened
here?” Mr. Anness responded, stating that Mr. Edgington discovered that the ceiling
was not in conformance with the Baker drawings and that “no one had caught it
including me. That's how all of this came about. RSCC change [sic] the Baker
drawing and no one caught it when the designs were reviewed.” (Finding 72)
The government cannot properly be blamed for approving the design when
appellant failed to inform the government that its design deviated from Task Order
minimum requirements. Watts Constructors, LLC, ASBCA No. 61493, 20-1 BCA
¶ 37,563 at 182,387 (no evidence that quality assurance representatives who observed
non-compliant contractor work knowingly waived the contractual terms) (internal
citations omitted). This especially is true where, as here, the contractor likewise was
ignorant of its own change to the Task Order minimum requirements. Rivera Constr.
47
Co., Inc., ASBCA No. 29391, 88-2 BCA ¶ 20,750 at 104,853 (coordination and
supervision of subcontractor work is responsibility of prime contractor). 16
In support of its waiver argument, appellant cites numerous decisions imputing
to contracting officers the knowledge of other government employees, thereby finding
a waiver of contract requirements (app. br. at 17-18, citing, e.g., Miller Elevator Co. v.
United States, 30 Fed. Cl. 662, 688 (1994); Military Aircraft Parts, ASBCA
No. 60009, 16-1 BCA ¶ 36,388 at 177,409). These decisions are of no moment
because appellant has not established that government employees here knew
appellant’s design did not comply with the Task Order minimum requirements. 17
Moreover, the MATOC gave the government “the right to rescind inadvertent approval
of submittals containing unnoted deviations” (finding 28).
As for the alleged “approval” of the design by government quality assurance
representatives, “[i]t is well established that Government inspectors are provided for
the Government’s benefit and not the contractor's.” Panhandle Grading and Paving,
Inc., ASBCA No. 38539, 90-1 BCA ¶ 22,561 at 113,225. The MATOC submittal
process placed the burden of contract compliance on the contractor, informing ECCI
that government approval of submittals did not relieve ECCI of responsibility for
errors or omissions in its design submittals and drawings, or its obligation to comply
with contract requirements (findings 7, 9-10, 15-16, 21, 23, 27, 30). “Where the
contract places on the contractor the burden of compliance, the presence or absence of
a Government inspector does not shift responsibility for the sufficiency of the work
from appellant to the Government.” Panhandle Grading, 90-1 BCA at 113,225 (citing
16 Appellant cites several decisions in support of its waiver argument (app. br.
at 16-21). Those decisions are inapposite as they concern the government’s
knowing waiver of a contractual requirement. See, e.g., Gresham & Co. v.
United States, 200 Ct. Cl. 97, 117-118, 470 F.2d 542, 554 (1972) (government
knew contractor’s dishwashing machines did not meet specification
requirement); American West Constr., LLC, ASBCA No. 61094, 18-1 BCA ¶
36,935 at 179,948-9 (contractor told government of plans not to fulfill contract
requirement of constructing temporary bridges); Walsky Constr. Co., ASBCA
No. 36940, 90-2 BCA ¶ 22,934 at 115,125 (government aware contractor not
following contract temperature requirements for installation of road sealant).
17 Appellant also cites our decision in CATH-dr/Balti Joint Venture, ASBCA
No. 54239, 05-2 BCA ¶ 33,046 at 163,808, for the proposition that knowledge
of directive issued by the ROICC/project manager was imputed to the CO. On
appeal, however, the United States Court of Appeals for the Federal Circuit
held that the issue of ratification presented a material fact and remanded the
appeal to Board to determine whether the CO ratified certain actions of the
project manager. Winter v. CATH-dr/Balti JV, 497 F.3d 1339, 1347 (Fed. Cir.
2007).
48
R.S. Construction, ASBCA No. 22815, 80–1 BCA ¶ 14,369; W.L. Spruill and
Company, ASBCA No. 14390, 71–2 BCA ¶ 8930); see Fortec Constructors, 83-1
BCA ¶ 16,374 at 81,407 (“unwitting Government approval of a noncomplying
submittal does not change the contract or estop the Government from demanding strict
conformance to the contract”) (internal citation omitted).
F. Sample Room and Acoustic Tile Submittals
Appellant suggests that the COR approved the sample room, relying as support
upon an affidavit and a sworn statement by Mr. Gunn, and a February 3, 2010, internal
government email (app. cross-mot. at 12, citing app. supp. tabs 125 (9/20/2017 aff. of
D. Gunn at 5), 134 at 22294; app. br. at 8-9, 14, citing app. supp. R4, tabs 163
(1/25/2017 sworn statement of D. Gunn at 7- 8), 173 at 157, and 201 at 2750). None
of the documents cited by appellant even identify the COR who allegedly approved the
sample room, let alone establish COR approval.
Mr. Gunn’s affidavit and his sworn statement contain only the conclusory
allegation that the COR approved the sample room (app. supp. R4, tabs 125 (9/20/2017
aff. of D. Gunn at 5), 163 (1/25/2019 sworn statement of D. Gunn at 7-8). 18 Mr. Gunn’s
sworn staement cites as support the contractor’s August 25, 2009, QCR, cited also by
appellant in its brief (app. supp. R4, tab 163 (1/25/2019 aff. of D. Gunn at 7-8); app. br.
at 9, citing app. supp. R4, tab 173 at 157-160). However, that QCR does not support a
finding that the COR approved the sample room. The QCR makes no mention of the
sample room, nor does it state the identity of the COR. The only mention of the COR in
the QCR is in response to the question, “[w]ere there any Delays in Work Progress
today?” The response states, “[w]ork was resume [sic] at 0930H after inspection and
verbal approval of COR for the security.” (App. supp. R4, tab 173 at 157)19 This
cryptic reference to the COR is insufficient to support a finding that the COR approved
the sample room or was on notice that the ceiling installed in that room did not comply
with Task Order minimum requirements.
The government email cited by appellant (from the resident engineer to the
ACO) does not state that the COR inspected or approved the sample room; rather it
states the contractor “submitted their acoustical system in their designs. These designs
were approved with no comments on the ceiling system. The COE personnel at that
18 In his deposition, Mr. Gunn stated that he was not working on the project in
July 2009 (app. supp. R4, tab 179 at 21-23), which may explain the lack of
factual context in his affidavit and his sworn statement.
19 Daily QC and QA Reports from July 20 through July 30, 2009, when the sample
room was constructed and allegedly approved, contain no reference to a COR
observing or approving the sample room (R4, tabs 201 at 2553-63, 202
at 4071-99).
49
time did not correct the mistake and have basically approved the mock ups, samples
and submittals.” (Finding 69) The record reflects that Mr. Conner and Mr. Edgington
viewed the sample room at some point in time (finding 58). There is no indication that
appellant notified these representatives that the ceiling depicted in the sample room
was a change to the Task Order minimum requirements. Moreover, Mr. Edgington
informed appellant in an email that his viewing of the room was not an inspection
(finding 67).
ECCI has presented no evidence that either Mr. Edgington or Mr. Conner had
authority to approve a variation to Task Order minimum requirements. Watts
Constructors, 20-1 BCA at 182,387 (“[w]hether such authority may [even] be
delegated to such persons as quality assurance representatives, there is no evidence
that they possessed such authority or that the contracting officer was made aware of
any waiver of contract terms by them”). Even if Mr. Edgington or Mr. Conner orally
accepted the sample room, their acceptance would not negate the government’s “right
to require correction of non-conforming construction material reflected in” the sample
room because ECCI failed to provide notice of the nonconformance. Ellis-Don
Constr., Inc., ASBCA No. 51210, 99-1 BCA ¶ 30,346 at 150,072.
Appellant also suggests that the government approved the use of an acoustical
tile ceiling through its approval of appellant’s Transmittals Nos. 09 51 00-1 and 09 51
00-2, containing product data and samples (app. br. at 8). We note, however, that the
transmittals were signed by Mr. Malone with a certification “that the above submitted
items have been reviewed in detail and are correct and in strict conformance with the
contract drawings and specifications except as otherwise stated.” Mr. Malone failed to
indicate that the submittals contained a variation in the Task Order requirements.
(Findings 60, 63) Thus, his certification that the submittals were “correct and in strict
conformance” with the Task Order requirements was simply incorrect. When the
Government cleared the acoustical tile samples for construction with a C-code,
requiring resubmission “with complete shop drawings for suspended ceiling,” the
government did so without notice that the submittals contained a variance of the Task
Order minimum requirements (finding 61).
G. Constructive Change
Appellant argues that the government constructively changed the Task Order
when it ordered the contractor to comply with the Task Order requirement of installing
a lath and plaster ceiling, and then allegedly directed ECCI to install a gypsum board
ceiling (app. br. at 31-32). Appellant states, “[u]ltimately, even if the Board were to
determine that the Government was entitled to the lath and plaster ceilings from the
Baker Drawings, the Board should still hold that ECCI is entitled to payment for its
claim because the direction to install the GWB ceilings was a compensable change”
(app. reply br. at 19).
50
We have held that the government did not waive the requirement that ECCI
install lath and plaster ceilings. The MATOC required the contractor to correct
non-conforming work at no additional cost or time to the Government (finding 19).
The record suggests that, when faced with the prospect of installing lath and plaster
ceiling in lieu of the acoustical tile ceiling, ECCI discussed internally its preference for
installation of a sheetrock ceiling, rather than lath and plaster (findings 73-74). In his
February 5, 2010, internal email, Mr. Stoneham was explicit:
“I think we need to respond with a plan to install a
sheetrock ceiling as lath and plaster is not appropriate for
the roof structure as designed by Baker nor is it appropriate
for this application. If a “hard” ceiling is required, a
sheetrock ceiling should be installed.”
(Finding 73)
Appellant suggests that the government “requested that ECCI use a GWB ceiling
system to replace the acoustical ceiling based system” (app. br. at 10). Appellant cites
as support a statement contained in an internal ECCI email from Mr. Stoneham to
Mr. Ochabauer sent four hours after Mr. Stoneham’s February 5, 2010, internal email
quoted above (app. br. at 10, citing R4, tab 270 at 8399). In that subsequent email,
Mr. Stoneham stated, “Bob had mentioned that USACE wanted the sheetrock ceiling
and are supportive of it. My intent was to show them we are on board with it and
moving in that direction.” (Finding 74) Although the record reflects that the parties
discussed installation of a gypsum ceiling (finding 68), appellant’s internal email falls
far short of establishing a government request or direction that ECCI install a gypsum
board ceiling. 20 Rather, by letter dated March 6, 2010, ECCI proposed to the
government that the “specified painted plaster on metal lath ceiling be replaced with a
painted gypsum board ceiling” (finding 77). Appellant provided with its letter a
“submittal for the metal support system that the gypsum board would attach to,” and
the government agreed to appellant’s proposal the following day (findings 77-78).
Appellant’s having formally proposed via letter and accompanying submittal a
substitution to what was specified in the Task Order, and the government’s having
agreed to appellant’s proposal, there was no constructive change by the government.
20 In its cross-motion for summary judgment, appellant cites Mr. Gunn’s statement in
his affidavit that the government “acknowledged” lath and plaster ceilings
“were not appropriate and instead agreed to installation of gypsum board
ceilings in lieu of the lath and plaster” (app. cross-mot. at 15, citing app. supp.
R4, tab 125 (9/20/2017 aff. of D. Gunn at 6)). Mr. Gunn provides no factual
context for his conclusory statement. Without more, it is of little evidentiary
value.
51
Optimization Consulting, Inc., ASBCA No. 58752, 19-1 BCA ¶37,426 at 181,905 (“[a]
constructive change occurs when a contractor performs work beyond the contract
requirements, without a formal order under the Changes clause, due either to an express
or implied informal order from an authorized government official or to government
fault) (quoting Parwan Group Co., ASBCA No. 60657, 18-1 BCA ¶ 37,082 at
180,498).
H. Ceiling Requirements on Other Task Orders
Appellant argues that on other task orders, for example 0004 and 0005,
appellant “proposed and the Government accepted suspended acoustical ceilings in
lieu of the lath and plaster ceilings which were inappropriate for Afghanistan” (app. br.
at 5-6, app. cross-mot. at 10). However, on those task orders, ECCI and the
government specifically agreed to the use of an acoustical tile ceiling as a variation to
the task orders requirements (app. supp. R4, tab 80 at 1). Indeed, in response to an
email from ECCI on this issue, the government stated “[y]ou should have a 4025 in
hand approving this as a variation” (app. supp. R4, tab 80 at 3).
Appellant also states that “Baker began preparing new standard designs in 2010
which were included in numerous task orders and stand-alone contracts” and that
“[n]one of the new Baker standard drawings included suspended lath and plaster
ceilings” (app. cross-mot. at 10). Even if true, such changes by Baker, incorporated
into subsequent task orders by the government, are not evidence of the government’s
liability to appellant here. Intram Co., ASBCA No. 44159, 94-1 BCA ¶ 26,375
at 131,180 (“The fact that the Government clarified the contract requirements in the
follow-on contract has no bearing on interpretation of this contract. Subsequent
remedial measures are not evidence of liability (Fed. R. Evid. 407)”). Here, the Task
Order required installation of lath and plaster ceilings. The fact that the parties agreed
to a variation on other task orders has no bearing on this Task Order, and, indeed,
suggests that appellant was aware of the manner in which such variations in design
were to be processed pursuant to the MATOC, but did not take those steps here.
52
CONCLUSION
The government’s motion to dismiss is denied and the parties’ cross-motions
are dismissed as moot. We have considered appellant’s remaining arguments and find
they have no merit. The appeal is denied.
Dated: August 25, 2020
DAVID B. STINSON
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. 58875, Appeal of ECC
International, LLC, rendered in conformance with the Board’s Charter.
Dated: August 25, 2020
PAULLA K. GATES-LEWIS
Recorder, Armed Services
Board of Contract Appeals
53