B-155186, APR. 4, 1968

B-155186, APR. 4, 1968

TO MR. ALBERT C. RONDINELLI:

REFERENCE IS MADE TO YOUR LETTERS OF DECEMBER 27, 1966, AND MARCH 1, 1967, WITH ENCLOSURES, REQUESTING THAT WE REVIEW ARMED SERVICES BOARD OF CONTRACT APPEALS DECISIONS NOS. 9900 AND 10197 DATED FEBRUARY 25, 1965, AND DECISIONS NOS. 9838, 10405, 11319, 11400, 11401, AND 11443 DATED MAY 31, 1966, WHICH WERE RENDERED IN CONNECTION WITH CONTRACT NO. DA 44-110- ENG-5465.

THAT CONTRACT, A SMALL BUSINESS SET-ASIDE, WAS AWARDED ON MARCH 22, 1963, IN THE ESTIMATED AMOUNT OF $119,884.50 BY THE U.S. ARMY ENGINEER DISTRICT, NORFOLK, VIRGINIA. IT CALLED FOR THE CONSTRUCTION OF FALLOUT PROTECTION STRUCTURES AND APPURTENANT FACILITIES AROUND THE OPERATIONS BUILDING AND THE GROUND AIR TRANSMITTER RECEIVER BUILDING, LOCATED APPROXIMATELY ONE MILE APART AT THE MANASSAS AIR FORCE STATION, VIRGINIA. THE COMPLETION DATES FIXED BY RECEIPT OF THE NOTICE TO PROCEED WERE OCTOBER 7, 1963, FOR CONSTRUCTION, AND OCTOBER 15, 1963, FOR SEEDING AND MULCHING, INCLUDING FINAL CLEANUPS.

IT APPEARS FROM THE RECORD THAT OPERATIONS UNDER THE CONTRACT WERE MARKED BY A SERIES OF DISPUTES BETWEEN THE CONTRACTOR AND THE CONTRACTING OFFICER AND/OR HIS REPRESENTATIVE AS TO EXTENSIONS OF TIME AND MONETARY ADJUSTMENTS FOR CHANGES, CHANGED CONDITIONS, DELAYS, AND SUSPENSIONS ENCOUNTERED IN THE WORK. ON FEBRUARY 24, 1964, THE CONTRACTING OFFICER TERMINATED FOR DEFAULT THE CONTRACTOR'S RIGHT TO PROCEED WITH THE ENTIRE REMAINING WORK, AND SUBSEQUENTLY $21,700 IN EXCESS COSTS WAS ASSESSED AGAINST THE CONTRACTOR FOR COMPLETION OF THE TERMINATED PORTION OF THE WORK BY REPROCUREMENT CONTRACT. ALSO ASSESSED WAS THE AMOUNT OF $22,000 IN LIQUIDATED DAMAGES FOR LATE COMPLETION. THE ADVERSE DECISIONS OF THE CONTRACTING OFFICER RELATING TO YOUR CLAIMS ON THE ABOVE ITEMS WERE APPEALED TO THE ARMED SERVICES BOARD OF CONTRACT APPEALS.

IN ITS DECISIONS OF FEBRUARY 25, 1965, AND MAY 31, 1966, THE BOARD HELD THAT THE CONTRACTOR WAS ENTITLED TO A CREDIT IN THE AMOUNT OF $4,395.67 AND TIME EXTENSIONS TOTALING 27 DAYS ON ACCOUNT OF CHANGES, CHANGED CONDITIONS, SUSPENSIONS OF WORK, AND DELAYS ENCOUNTERED IN THE COURSE OF THE WORK. THE BOARD ALSO HELD THAT INASMUCH AS THE CONTRACTOR'S RIGHT TO PROCEED ON THE SEPARATE AND SEVERABLE SEEDING AND MULCHING PORTION OF THE WORK WAS TERMINATED PRIOR TO THE ADVENT OF THE NEXT PLANTING SEASON AND AT A TIME WHEN THE CONTRACTOR WAS NOT IN DEFAULT THEREON, THE TERMINATION AS TO THAT ITEM SHOULD BE CONVERTED FROM A TERMINATION FOR DEFAULT TO A TERMINATION FOR THE CONVENIENCE OF THE GOVERNMENT. PURSUANT THERETO THAT MATTER WAS REMANDED TO THE CONTRACTING OFFICER FOR TERMINATION SETTLEMENT; THE CONTRACTOR WAS RELIEVED FROM ASSESSMENT OF EXCESS COSTS IN THE AMOUNT OF $420 ON THE REPROCUREMENT THROUGH A SUCCESSOR CONTRACTOR OF SEEDING AND MULCHING; AND REMISSION OF $7,600 IN LIQUIDATED DAMAGES ASSESSED FOR LATE COMPLETION THEREOF WAS GRANTED.

THE BOARD UPHELD THE TERMINATION FOR DEFAULT ON FEBRUARY 24, 1964, OF THE CONSTRUCTION PORTION OF THE CONTRACT ON THE BASIS THAT AT THAT TIME THE CONTRACTOR WAS APPROXIMATELY FOUR MONTHS BEHIND THE EXTENDED COMPLETION DATE OF OCTOBER 31, 1963, RESULTING FROM THE TIME EXTENSIONS THERETOFORE ADJUDICATED BY THE BOARD. THE ASSESSMENT FOR EXCESS COSTS WAS ADJUSTED BY DEDUCTING (IN ADDITION TO THE $420 FOR SEEDING AND MULCHING) THE FURTHER AMOUNT OF $4,461.29, LEAVING THE BALANCE ADJUDICATED AS DUE FOR EXCESS COSTS AT $16,818.71. ALSO, THE ASSESSMENT FOR LIQUIDATED DAMAGES WAS ADJUSTED BY DEDUCTING (IN ADDITION TO THE $7,600 FOR SEEDING AND MULCHING) THE FURTHER AMOUNT OF $5,950 LEAVING THE BALANCE DUE FOR LIQUIDATED DAMAGES AS $9,650.

AS POINTED OUT IN OUR LETTER OF APRIL 18, 1967, TO YOU, UNDER THE DISPUTES CLAUSE IN YOUR CONTRACT AND THE PROVISIONS OF THE "WUNDERLICH" ACT, 68 STAT. 81 (41 U.S.C. 321-322), WE MUST ACCEPT BOARD DETERMINATIONS ON DISPUTED QUESTIONS OF FACT AS BINDING AND CONCLUSIVE UPON US IN ADJUDICATING CLAIMS SUBMITTED BY CONTRACTORS, UNLESS SUCH DETERMINATIONS ARE FOUND TO BE FRAUDULENT, OR CAPRICIOUS, OR ARBITRARY, OR SO GROSSLY ERRONEOUS AS NECESSARILY TO IMPLY BAD FAITH, OR ARE NOT SUPPORTED BY SUBSTANTIAL EVIDENCE. IN ATTACKING THE FINALITY OF AN ADMINISTRATIVE DECISION UNDER A CONTRACTUAL DISPUTES CLAUSE, A CLAIMANT MUST ALLEGE OR SPECIFY IN WHAT RESPECT ANY CONTESTED FINDING IS ERRONEOUS, AND IT HAS BEEN HELD THAT A GENERAL ATTACK ON THE FINDINGS WITHOUT SPECIFYING PARTICULAR ERRORS OR ANALYZING THE EVIDENCE IS INADEQUATE TO OVERTURN THE ADMINISTRATIVE FINDINGS. JEFFERSON CONSTRUCTION CO. V UNITED STATES, 177 CT. CL. 581.

ALTHOUGH YOUR CONTENTIONS ARE IN THE MAIN MERELY ARGUMENTATIVE AND DO NOT SPECIFICALLY POINT OUT WHEREIN THE BOARD'S FACTUAL FINDINGS ARE NOT SUPPORTED BY THE RECORD, WE HAVE ATTEMPTED TO REVIEW THE RECORD TO THE EXTENT NECESSARY TO CONSIDER THE MERITS OF THE POINTS ADVANCED BY YOU. UPON SUCH REVIEW WE HAVE BEEN UNABLE TO FIND ANY JUSTIFICATION FOR CONCLUDING THAT THE FACTUAL FINDINGS OF THE BOARD IN THESE MATTERS ARE FRAUDULENT OR CAPRICIOUS OR ARBITRARY OR SO GROSSLY ERRONEOUS AS NECESSARILY TO IMPLY BAD FAITH, OR THAT THEY ARE NOT SUPPORTED BY SUBSTANTIAL EVIDENCE.

WHILE DETERMINATIONS BY THE BOARD ON QUESTIONS OF LAW ARE NOT BINDING AND CONCLUSIVE ON OUR OFFICE AND WE WILL ACT UPON OUR OWN CONCLUSIONS AS TO THE PROPER APPLICABLE LAW, IN THIS INSTANCE WE DO NOT FIND OURSELVES IN DISAGREEMENT WITH THE BOARD'S LEGAL CONCLUSIONS. ACCORDINGLY WE ACCEPT THE DECISIONS OF THE BOARD AND CONCLUDE THAT THERE IS NO LEGAL BASIS FOR ALLOWANCE OF YOUR CLAIMS.

YOUR LETTER ALSO REQUESTS PERMISSION TO ENTER AN ADDITIONAL CLAIM ON A MATTER WHICH, HERETOFORE, HAD NOT BEEN PRESENTED TO THE CONTRACTING OFFICER OR APPEALED TO THE BOARD. IN THIS REGARD YOU SAY THAT, DUE TO THE LIMITATION OF SPACE AT THE JOB SITE, YOU WERE COMPELLED TO CONSTRUCT A POURED-IN-PLACE REINFORCED CONCRETE ROOF IN LIEU OF A PRECAST ROOF AS ORIGINALLY SPECIFIED; THAT THIS SUBSTITUTE DESIGN COST YOU AN ADDITIONAL $12,000 AND 30 DAYS' ADDITIONAL TIME TO COMPLETE; THAT A CREDIT OF $2,150 (WITH NO CHANGE IN CONTRACT TIME) WAS ALLOWED BY THE GOVERNMENT FOR THIS SUBSTITUTION. THE BASIS FOR THIS NEW CLAIM AS STATED BY YOU IS THE RESULT OF THE BOARD'S RULING THAT COSTS OF CHANGES ON THIS CONTRACT WERE TO BE DETERMINED BY ACTUAL EXPENDITURES.

THIS CLAIM IS DERIVED FROM MODIFICATION NO. 2 OF THE CONTRACT WHICH PROVIDED FOR THE CHANGE SUBSTANTIALLY AS YOU DESCRIBE IT. ACCORDING TO THE ADMINISTRATIVE OFFICE, THE SUGGESTION THEREFOR ORIGINATED WITH YOU. THIS IS SUBSTANTIATED BY AN ENCLOSURE TO YOUR LETTER OF FEBRUARY 1, 1964, TO THE CONTRACTING OFFICER IN WHICH YOU MAKE THE FOLLOWING STATEMENT:

"SHORTLY AFTER THE AWARD OF CONTRACT WE INFORMED THE CORPS OF ENGINEERS THAT WE WERE UNABLE TO LOCATE A FIRM TO FABRICATE, ERECT AND GUARANTEE THE PRECAST ROOF DECK TO BE ERECTED ON THE NEW OPERATIONS BUILDING FALLOUT SHELTER. AT THE SAME TIME WE SUBMITTED A PROPOSAL TO ERECT A REINFORCED 13 INCH CONCRETE ROOF ON A STRUCTURAL STEEL FRAMEWORK IN LIEU OF THE PRECAST ROOF. A CREDIT OF $2,150.00 WAS OFFERED THE CORPS OF ENGINEERS FOR THIS ALTERNATE PROPOSAL. THIS OFFER WAS ACCEPTED BY THE CORPS OF ENGINEERS AND A FORMAL MODIFICATION DATED OCT 10, 1963 WAS ISSUED (EX. 44).

"NOTE: THERE IS NO DISPUTE ON THIS ITEM.'

IN ANY EVENT, WHETHER THIS CHANGE WAS ORIGINATED BY YOU OR THE GOVERNMENT, YOU VOLUNTARILY AGREED TO THE TERMS OF THE MODIFICATION WHEREBY THE CONTRACT PRICE WAS REDUCED BY $2,150, AND THERE IS THEREFORE NO BASIS FOR ALLOWANCE OF ANY ADDITIONAL PAYMENT THEREFOR REGARDLESS OF WHAT IT MAY HAVE COST. THE RULING OF THE BOARD TO WHICH YOU REFER HAS APPLICATION ONLY TO THE DETERMINATION OF COMPENSATION FOR WORK NOT COVERED BY THE CONTRACT. FURTHERMORE, THE RECORD INDICATES THAT ON JULY 19, 1966, YOU EXECUTED A GENERAL RELEASE OF ALL CLAIMS EXCEPT THOSE CLAIMS DECIDED BY THE BOARD, FOR WHICH YOU RESERVED A RIGHT OF REVIEW, AND THAT THE PRESENT CONTENTION WAS NOT INCLUDED IN THE RESERVATION IN THE RELEASE. ACCORDINGLY, YOUR CLAIM FOR WORK COVERED BY MODIFICATION NO. 2 IS DENIED.