B-172428, SEP 22, 1971

B-172428, SEP 22, 1971

CONTRACTS - ASBCA - EXTRA COSTS ADVISING THAT THE ADVERSE DECISION OF THE ARMED SERVICES BOARD OF CONTRACT APPEALS (ASBCA) FOR AN EQUITABLE PRICE ADJUSTMENT IS FINAL AND CONCLUSIVE. THE BOARD FINDING THAT THE RECORD DID NOT SUPPORT BUILDING MAINTENANCE CORPORATION'S ALLEGATION THAT EXTRA COSTS WERE INCURRED DUE TO A "CONSTRUCTIVE CHANGE" IS ONE OF FACT AND IS FATAL TO THE CORPORATION'S CLAIM. THERE BEING NO EVIDENCE TO INDICATE THE BOARD'S DECISION WAS FRAUDULENT, CAPRICIOUS, ARBITRARY, OR SO GROSSLY ERRONEOUS AS TO IMPLY BAD FAITH, THE REQUEST THAT THE ASBCA DECISION BE OVERTURNED IS DENIED.

TO BUILDING MAINTENANCE CORPORATION:

YOUR LETTER OF MARCH 26, 1971, REQUESTED THAT WE REVIEW THE ADVERSE DECISION REACHED BY THE ARMED SERVICES BOARD OF CONTRACT APPEALS (ASBCA NO. 14357) ON YOUR APPEAL FOR AN EQUITABLE PRICE ADJUSTMENT UNDER CONTRACT NO. DAE08-67-C-0100. UPON CONSIDERATION OF THE SUPPORTING RECORD UNDER THE STANDARDS OF REVIEW PRESCRIBED BY 41 U.S.C. 321, WE HAVE CONCLUDED THAT THE DECISION, INSOFAR AS OUR OFFICE IS CONCERNED, IS FINAL AND CONCLUSIVE.

SPECIFICATIONS FOR THE SUBJECT CONTRACT REQUIRED GENERALLY THAT FLOORS, EXCEPT FOR CORRIDORS, LOBBIES AND CERTAIN OTHER AREAS, WERE TO BE WAXED WITH "WATER EMULSION TYPE WAX;" THAT CORRIDORS, LOBBIES AND OTHER AREAS AS SPECIFIED WERE TO BE WAXED WITH A "HIGH-GRADE PASTE WAX;" AND THAT THE GOVERNMENT WOULD SUPPLY THE WAX.

IT WAS BUILDING MAINTENANCE CORPORATION'S (BMC) CONTENTION IN ITS APPEAL TO THE ASBCA THAT THE TERM "WATER EMULSION TYPE WAX" CLEARLY SIGNIFIED THAT PASTE WAX WAS TO BE FURNISHED BY THE GOVERNMENT FOR ALL WAXING TASKS, NOT JUST THOSE CALLING FOR THE USE OF "HIGH GRADE PASTE WAX," AND THAT THE FURNISHING OF LIQUID WAX BY THE GOVERNMENT FOR USE IN THOSE AREAS CALLING FOR "WATER EMULSION TYPE WAX" WAS A CONSTRUCTIVE CHANGE. SUBSTANTIATION OF THIS CONTENTION, BMC CONTENDED THAT ITS BID WAS COMPUTED UPON THE ASSUMPTION THAT PASTE WAX WOULD BE FURNISHED FOR ALL PORTIONS OF THE CONTRACT AND THAT LIQUID WAX, ALLEGEDLY ENTAILING LONGER APPLICATION TIME, OCCASIONING THE USE OF AN EXTRA EMPLOYEE TO ACCOMPLISH THE WORK REQUIREMENTS, THEREBY INCREASED LABOR COSTS. ALTERNATIVELY, BMC ARGUED THAT AN AMBIGUITY EXISTED IN THAT THE CONTRACT FAILED TO SPECIFY WHETHER "WATER EMULSION TYPE WAX" WAS TO BE PASTE OR LIQUID. FINALLY BMC ARGUED THAT A STATEMENT IN A PROPOSED OPERATING SCHEDULE REQUIRED TO BE FILED PRIOR TO CONTRACT AWARD THAT ALL FLOORS WOULD BE WAXED WITH PASTE WAX WAS A CONTRACT MODIFICATION CALLING FOR THE USE OF PASTE WAX.

IN RESPONSE TO THESE CONTENTIONS, THE BOARD FOUND, BASED IN PART ON TESTIMONY TO THAT EFFECT BY BMC'S PRESIDENT, THAT THE TERM "WATER EMULSION TYPE WAX" INCLUDED BOTH LIQUID AND PASTE WAX, AND THAT THERE WAS THEREFORE NO AMBIGUITY IN THE USE OF THE TERM. FURTHER, THE BOARD FOUND THAT THE PROPOSED OPERATING SCHEDULE DID NOT MODIFY THE CONTRACT TO REQUIRE SOLELY PASTE WAS, BECAUSE THE SUBJECT WAS NEVER DISCUSSED WITH THE CONTRACTING OFFICER AND THERE WAS NO EVIDENCE THAT ANY SUCH CHANGE IN SPECIFICATIONS WAS AGREED TO BY THE GOVERNMENT. FINALLY, AND MOST IMPORTANTLY, THE BOARD FOUND THAT THE APPELLANT FAILED TO SUSTAIN ITS BURDEN OF PROOF THAT USE OF LIQUID WAX INCREASED ITS COSTS.

IN BMC'S REQUEST FOR REVIEW OF THE ASBCA DECISION THE QUESTIONS PRESENTED ARE PRIMARILY THOSE OF FACT. PARTICULARLY, THE BOARD FINDING THAT THE RECORD DID NOT SUPPORT THE APPELLANT'S ALLEGATION THAT EXTRA COSTS WERE INCURRED IS ONE OF FACT AND IS FATAL TO THE BMC CLAIM SINCE A FINDING THAT NO EXTRA COSTS WERE INCURRED REQUIRES THE CONCLUSION THAT NO BASIS EXISTED FOR AN EQUITABLE ADJUSTMENT EVEN IF IT WERE DETERMINED THAT PASTE WAX WAS REQUIRED THROUGHOUT.

UPON A REVIEW OF THE RECORD WE FIND NO EVIDENCE TO INDICATE THE BOARD'S DECISION IS FRAUDULENT, CAPRICIOUS, ARBITRARY, SO GROSSLY ERRONEOUS AS TO IMPLY BAD FAITH, OR NOT SUPPORTED BY SUBSTANTIAL EVIDENCE.

THEREFORE, YOUR REQUEST THAT THE ASBCA DECISION BE OVERTURNED IS DENIED.