B-162911, OCT. 1, 1968

B-162911, OCT. 1, 1968

TO T.G.K. CONSTRUCTION COMPANY, INC.:

REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 4, 1967, IN WHICH YOU HAVE ASSERTED A CLAIM FOR OVERHEAD EXPENSES IN THE AMOUNT OF $69,292.00 ALLEGEDLY INCURRED BECAUSE OF VARIOUS DELAYS CAUSED BY THE GOVERNMENT DURING PERFORMANCE OF GENERAL SERVICES ADMINISTRATION CONSTRUCTION CONTRACT NO. GS-09-B-C-1845-SF, DATED JUNE 7, 1965.

THE CLAIM WAS INITIALLY PRESENTED TO THE CONTRACTING OFFICER, WHO DENIED THE CLAIM AS BEYOND HIS AUTHORITY TO SETTLE UNDER THE CONTRACT, SINCE A "SUSPENSION OF WORK" CLAUSE WAS NOT INCORPORATED THEREIN. UPON APPEAL THE GENERAL SERVICES ADMINISTRATION BOARD OF CONTRACT APPEALS (GSBCA) HELD THAT IT WAS WITHOUT JURISDICTION TO ENTERTAIN THE ACTION BECAUSE IT WAS ESSENTIALLY A CLAIM FOR BREACH OF CONTRACT UNDER APPLICABLE DECISIONS OF THE COURT OF CLAIMS AND NOT A REQUEST FOR COMPENSATION UNDER PERTINENT CONTRACT PROVISIONS. THE BOARD ALSO DENIED YOUR REQUEST FOR THE REFORMATION OF THE CONTRACT TO INCLUDE A "SUSPENSION OF WORK" CLAUSE. GSBCA-2427, OCTOBER 16, 1967.

YOUR COMPLAINT IS BASED ON FIVE SEPARATE DELAYS CAUSED BY THE GOVERNMENT, WHICH ARE BRIEFLY SUMMARIZED AS FOLLOWS:

1. (A) UNUSUALLY SLOW PROCESSING OF SHOP DRAWINGS AND THE HANDLING OF SUBMISSIONS FOR APPROVAL IN A MANNER OUTSIDE THE SCOPE OF THE CONTRACT.

(B) DELAY IN APPROVING MODIFICATIONS TO ACOUSTICAL UNITS SPECIFICATIONS.

2. LACK OF COORDINATION IN ENGINEERING DESIGN:

A. MECHANICAL

B. ELECTRICAL

C. STRUCTURAL

D. ARCHITECTURAL

3. DELAY BEYOND SCHEDULED TIME IN RECEIVING GOVERNMENT PROVIDED PARTITION DRAWINGS.

4. "HOLD ORDERS"

5. DELAY IN ISSUING TIME EXTENSION PURSUANT TO CHANGE ORDER NO. 28.

IN A REPORT DATED FEBRUARY 19, 1968, THE CONTRACTING OFFICER MAINTAINS THAT YOUR COMPANY CONTRIBUTED TO MUCH OF THE DELAY COMPLAINED OF IN ITEMS 1 (A) AND 3; THAT YOU WERE ADEQUATELY COMPENSATED BY MEANS OF EQUITABLE ADJUSTMENTS FOR DELAYS RELATED IN ITEM 2; AND THAT NO DELAY RESULTED FROM CIRCUMSTANCES DETAILED IN ITEMS 1 (B), 4, AND 5. HIS COMMENTS IN RESPONSE TO THESE STATEMENTS ARE SET FORTH IN DETAIL AS FOLLOWS:

1. (A) SHOP DRAWINGS

"WE ARE UNABLE TO CONFIRM OR DENY FROM OUR RECORDS ALL THE FIGURES MENTIONED BY THE CONTRACTOR ON PAGE 3 OF HIS CLAIM LETTER. HOWEVER, WE AGREE WITH THE A-E WHO WROTE ON MARCH 15, 1967 (COPY ATTACHED), THAT NUMEROUS SUBMITTALS WERE RECEIVED WITHIN A SHORT PERIOD OF TIME. SOME OF THESE SUBMITTALS INVOLVED WORK WHICH REQUIRED IMMEDIATE ACTION WHILE OTHERS WERE NOT AS PRESSING. THE SUBMITTALS GIVEN FIRST PRIORITY INVOLVED ITEMS EMBEDDED IN CONCRETE WORK, MAJOR ITEMS WHICH INVOLVED LARGEST DELIVERY TIME, AND/OR THOSE ITEMS NEEDING DELIVERY AT SUCH TIME THAT THE PROPER CONSTRUCTION SEQUENCE WOULD BE ASSURED. THIS SYSTEM OF CHECKING FORCED UPON THE ARCHITECT BY THE LARGE VOLUME OF EARLY SUBMITTALS DID DELAY THE RETURN OF SHOP DRAWINGS FOR CERTAIN ITEMS WHICH WERE NOT REQUIRED FOR INCORPORATION INTO THE WORK UNTIL THE LATER STAGE OF CONSTRUCTION. HUNDREDS OF SHOP DRAWINGS WERE INVOLVED IN THIS PROJECT. IN MANY INSTANCES SHOP DRAWINGS WERE IMPROPERLY SUBMITTED AND RETURNED DISAPPROVED BY THE ARCHITECT REQUIRING RESUBMITTAL AT LEAST ONCE AGAIN. IN OTHER CASES SHOP DRAWINGS WERE RETURNED BECAUSE OF INCOMPLETENESS, FAILURE TO MEET SPECIFICATIONS, OR CONTAINED UNACCEPTABLE DEVIATIONS NOT NOTED IN THE TRANSMITTAL FORM OR MEMORANDUM AS REQUIRED BY THE CONTRACT.'

(B) ACOUSTICAL UNITS TYPE 4

"WITH REFERENCE TO ACOUSTICAL UNITS TYPE 4, THE CONTRACTOR CORRECTLY FURNISHED PERTINENT INFORMATION IN THE PARAGRAPH BEFORE LAST ON PAGE 3 OF HIS CLAIM LETTER. THE DATES MENTIONED FOR SUBMITTAL AND APPROVAL ARE SUBSTANTIALLY CORRECT AND THE GOVERNMENT DID GRANT A WAIVER OF THE SPECIFICATION ON SEPTEMBER 12, 1966, APPROXIMATELY SIX MONTHS AFTER THE FIRST SUBMISSION. THE WAIVER WAS FOR A LOWER N.R.C. WHICH THE CONTRACT REQUIRED. HOWEVER, AT NO TIME WAS EVIDENCE PRODUCED SHOWING THAT THE N.R.C. SPECIFIED WAS NOT OBTAINABLE BY THE CONTRACTOR. HE SIMPLY REQUESTED A WAIVER ON THE GROUNDS THAT THE SPECIFICATION WOULD NOT ALLOW HIM TO FURNISH A COMMERCIALLY AVAILABLE CEILING BOARD. THE GOVERNMENT'S POSITION AT FIRST WAS THAT THE CONTRACT REQUIRED THE CONTRACTOR TO FURNISH AN ACOUSTICAL UNIT MEETING THE SPECIFICATION WHETHER OR NOT THE BOARD WAS READILY AVAILABLE COMMERCIALLY. HOWEVER, AFTER EXTENDED PERIOD OF TIME HAD ELAPSED DURING WHICH TIME THE CONTRACTOR CONSISTENTLY PURSUED THE LAST REQUESTED DEVIATION, THE GOVERNMENT DID GRANT THE WAIVER WITH THE PURPOSE OF APPROVING THE PRODUCT THAT COULD BE DUPLICATED IF REPLACEMENT BOARD BECAME NECESSARY LATER. HOWEVER, DURING THIS PERIOD OF TIME THE GOVERNMENT WAS IN FACT KEEPING TRACK OF THE PROGRESS OF THE JOB AND APPROVING THE WAIVER TIMELY ENOUGH TO ALLOW THE CONTRACTOR TO ORDER HIS MATERIAL AND INSTALL IT WITHOUT ANY DELAY TO THE TOTAL PROJECT. NO TIME EXTENSIONS WERE REQUESTED OR GRANTED FOR THIS MATTER OF ACOUSTICAL UNIT APPROVAL AND THE INSTALLATION.'

2. LACK OF COORDINATION IN ENGINEERING DESIGN

"PAGE 4 OF THE CONTRACTOR'S CLAIM LETTER JUSTIFIES DELAYS DUE TO ENGINEERING (2) AND (3). CHANGE REQUEST 22 IS MENTIONED IN DETAIL AND STATEMENTS ARE MADE IMPLYING THE PARTITION WORK INVOLVED IN THAT CHANGE REQUEST WAS CAUSE OF FOUR MONTHS DELAY TO THE PROJECT. AMENDMENT 3 TO THE BIDDING DOCUMENTS IS QUOTED CORRECTLY. WE AGREE THAT ALL THE DRAWINGS MENTIONED ON PAGE 5 OF THE CLAIM LETTER WERE INVOLVED IN THIS PARTITION WORK. ON PAGE 6, CHANGE REQUEST NO. 27 IS ALLEGED TO HAVE CAUSED FURTHER DELAY BECAUSE OF VARIOUS CONFLICTS MENTIONED THEREIN.

"THE GOVERNMENT'S POSITION IN BOTH MATTERS, THE PARTITIONS IN CHANGE REQUEST NO. 22 AND THE DESIGN ELEMENT IN CHANGE REQUEST NO. 27, IS THAT BOTH MODIFICATIONS WERE MADE TO THE CONTRACT TO COMPENSATE THE CONTRACTOR FOR BOTH TIME AND MONEY AS DEEMED EQUITABLE. CHANGE REQUEST NO. 22 WAS NEGOTIATED AND 40 - CALENDAR DAY TIME EXTENSION WAS GRANTED. CHANGE REQUEST NO. 27 WAS NEGOTIATED AND TIME EXTENSION OF 39 - CALENDAR DAYS WAS GRANTED. BOTH TIME EXTENSIONS WERE GRANTED AFTER MAKING REFERENCE TO THE APPROPRIATE PROJECT SCHEDULE UNDER WHICH WORK WAS BEING ACCOMPLISHED AT THE TIME.'

3. DELAY BEYOND SCHEDULED TIME IN RECEIVING GOVERNMENT PROVIDED PARTITION DRAWINGS (SUBMITTED WITH CPM CHARTS)

"FURTHER REFERENCES ON PAGE 5 ARE MADE TO CPM CHARTS, AND DATES OF SUBMITTAL OF THE REQUIRED CHARTS. THE CONTRACTOR REFERENCED SCHEDULES SUBMITTED EARLY IN THE PROJECT WHICH IN FACT WERE ACCELERATED CPM SCHEDULES WHICH WERE NOT APPROVED BY THE GOVERNMENT SINCE THE CONTRACT CALLED FOR THE CRITICAL PATH SCHEDULE TO SHOW ACTIVITIES FOR THE ENTIRE JOB, WITH THE TOTAL DURATION EQUAL TO THE CONTRACT TIME OF 610 CALENDAR DAYS. REVISED SCHEDULES WERE SUBMITTED LATER BY THE CONTRACTOR, APPROVED BY THE GOVERNMENT, ACTUALLY USED BY THE CONTRACTOR DURING CONSTRUCTION AND TIME EXTENSIONS GRANTED FOR THE SUBJECT CHANGE REQUESTS BASED UPON THOSE SCHEDULES ACTUALLY BEING USED. THEREFORE, THE GOVERNMENT FEELS THAT ITS OBLIGATION IN THIS REGARD WAS COMPLETELY COVERED IN THE CONTRACT AS WRITTEN.'

4. HOLD ORDERS

"WITH REFERENCE TO PAGE 6 OF THE CONTRACTOR'S LETTER, DATED JULY 12, 1967, HOLD ORDERS, THE GOVERNMENT REQUESTED THE CONTRACTOR NOT TO WORK IN TWO RATHER SMALL AREAS UNTIL PLANS WERE FINALIZED FOR THE SENATOR'S OFFICE AND FOR THE FBI DARKROOM. CHANGE REQUEST NO. 30 (CONTRACTOR REFERENCES NO. 20), ADJUSTED THE CONTRACT FOR THE CHANGED WORK IN THE FBI WORKROOM AREA. CHANGE REQUEST NO. 31 ADJUSTED THE CONTRACT FOR CHANGED WORK IN SENATOR CANNON'S SUITE ON THE THIRD FLOOR AND A SIMILAR AREA ON THE FOURTH FLOOR. THE POSTPONED WORK IN THESE SMALL AREAS DID NOT AFFECT THE CRITICAL PATH SCHEDULE OF THE ENTIRE PROJECT.'

5. DELAY IN ISSUING TIME EXTENSION PURSUANT TO CHANGE REQUEST NO. 28

"THE CONTRACTOR NEXT MENTIONS CHANGE REQUEST NO. 28 AND THE GOVERNMENT'S LACK OF ACTION ON A REQUEST FOR A TIME EXTENSION OF 14 CALENDAR DAYS. THE CHANGE REQUEST ADJUSTED THE CONTRACT FOR CERTAIN DESIGN DEFICIENCIES WHEREIN THE CONNECTIONS OF THE PRE-CAST PANELS TO THE STRUCTURE HAD TO BE MODIFIED. THE CONTRACTOR'S LETTER OF NOVEMBER 18, 1966, AGREED TO THE PRICE ADJUSTMENT AS FULL SETTLEMENT FOR THE CLAIM. BY IMPLICATION, THE GOVERNMENT'S LACK OF ACTION ON GRANTING THE 14 CALENDAR DAY TIME EXTENSION WAS AGREEABLE TO THE CONTRACTOR AT THAT TIME (SEE CONTRACTOR'S LETTER DATED NOVEMBER 18, 1966).'

IT IS WELL ESTABLISHED THAT THE GOVERNMENT MAY BE LIABLE FOR BREACH OF ITS CONTRACT IF IT UNREASONABLY DELAYS OR DISRUPTS CLAIMANT'S WORK. F.H. MCGRAW AND COMPANY V U.S., 131 CT. CL. 501; SILBERBLATT AND LASKER, INC., V U.S., 101 CT. CL. 54. HOWEVER, WHILE IT IS OUR POSITION THAT THE CLAIM SETTLEMENT JURISDICTION OF OUR OFFICE EXTENDS TO A CLAIM OF THE NATURE OF THAT HERE ASSERTED, IT HAS BEEN OUR PRACTICE TO DECLINE TO SETTLE SUCH CLAIMS UNLESS BOTH THE GOVERNMENT'S LIABILITY AND THE AMOUNT OF THE DAMAGES RESULTING FROM THE GOVERNMENT'S WRONGFUL ACTS WERE CLEARLY ESTABLISHED. 44 COMP. GEN. 353; B-150222, JULY 17, 1963. IN THIS REGARD THE STATEMENT OF GSA'S POSITION WITH RESPECT TO SEVERAL BASES OF YOUR CLAIM INDICATES THAT THE OCCURRENCE OF UNREASONABLE DELAYS ATTRIBUTABLE TO THE GOVERNMENT, AND RESULTING DAMAGE TO THE CONTRACTOR, IS STRONGLY DISPUTED. IN THESE CIRCUMSTANCES WE CANNOT CONCLUDE WE WOULD BE JUSTIFIED IN UNDERTAKING TO SETTLE YOUR CLAIM AS ONE FOR BREACH OF THE GOVERNMENT'S OBLIGATION UNDER THE CONTRACT.

WITH REGARD TO YOUR REQUEST FOR AN EQUITABLE MODIFICATION OF THE CONTRACT TO INCLUDE THE REVISED MARCH 1965 EDITION OF THE GENERAL CONDITIONS (GSA FORM 1139) INSTEAD OF THE 1959 EDITION OF THIS FORM, WHICH WAS PART OF YOUR CONTRACT, WE ARE ADVISED THAT THE FORM REFERRED TO DID NOT CONTAIN A "SUSPENSION OF WORK" CLAUSE, AND THAT USE OF SUCH A CLAUSE AS AN ADDITION TO FORM 1139 WAS NOT AUTHORIZED UNTIL JUNE 25, 1965. THE MODIFICATION REQUESTED BY YOU WOULD THEREFORE NOT IMPROVE YOUR POSITION OR FURNISH ANY BASIS FOR CONSIDERATION OF YOUR CLAIM AS ONE FOR EQUITABLE ADJUSTMENT AUTHORIZED BY THE CONTRACT. ADDITIONALLY,THIS OFFICE WILL ALLOW CLAIMS ON EQUITABLE GROUNDS ONLY WHERE SUCH JURISDICTION IS SPECIFICALLY GRANTED BY STATUTE. 46 COMP. GEN. 874. OUR OFFICE DOES NOT POSSESS STATUTORY AUTHORITY WHICH WOULD PERMIT US TO REFORM YOUR CONTRACT IN THE MANNER REQUESTED.

FOR THE REASONS SET FORTH ABOVE YOUR CLAIM MUST BE DENIED. THIS IS, OF COURSE, WITHOUT PREJUDICE TO YOUR RIGHT TO PURSUE ANY JUDICIAL REMEDY WHICH MAY BE AVAILABLE.