B-159903, OCT. 13, 1966

B-159903, OCT. 13, 1966

TO WILL J. DAVIS, ESQUIRE:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF AUGUST 15, 1966, WITH ENCLOSURES, ON BEHALF OF MARK EDWARDS ASSOCIATES, INCORPORATED, IN WHICH YOU REQUEST THAT OUR OFFICE REVIEW THE DECISION OF THE ARMED SERVICES BOARD OF CONTRACT APPEALS, APPEAL OF MARK EDWARDS ASSOCIATES, INCORPORATED, DATED JULY 22, 1965, ASBCA NO. 10256, WHICH DENIED THE CLAIM OF MARK EDWARDS FOR ADDITIONAL COMPENSATION UNDER CONTRACT NO. AF 28/609/- 3774. THIS DECISION WAS RECONSIDERED AND AFFIRMED BY THE ASBCA ON NOVEMBER 24, 1965. ALL OF THE ARGUMENTS PRESENTED IN YOUR LETTER OF AUGUST 15, 1966, TO OUR OFFICE, HAVE PREVIOUSLY BEEN BROUGHT TO THE ATTENTION OF THE ASBCA IN ITS CONSIDERATION OF THIS MATTER.

SECTION 3-06 OF THE SPECIFICATIONS OF THE INSTANT CONTRACT ENTITLED "PREPARATION OF SURFACES AND APPLICATION OF PAINT" PROVIDED AS FOLLOWS IN SUBPARAGRAPH (B):

"B. CONCRETE AND MASONRY: ALL CONCRETE AND MASONRY SURFACES SHALL BE THOROUGHLY CLEANED OF ALL THE OLD PAINT. THIS SHALL BE ACCOMPLISHED BY SAND BLASTING, GRIT BLASTING OR POWER BRUSH AND SCRAPING. BODY OILS AND TRACES OF ALGAE SHALL BE REMOVED BY THOROUGHLY WASHING AND SCRUBBING WITH TRI-SODIUM PHOSPHATE AND RINSING WITH WATER. ALL SURFACES SHALL THEN BE ACID ETCHED WITH 20 PERCENT SOLUTION OF COMMERCIAL MURIATIC ACID. IF 36 PERCENT SOLUTION OF MURIATIC ACID IS USED, ONE GALLON OF ACID WILL BE MIXED WITH ONE GALLON OF WATER. WORK SHALL BEGIN AT THE BOTTOM OF THE POOL AND PROGRESS UP THE SIDE WALLS AND UP THE INCLINE WITH A MOP OR BROOM UNTIL THE SURFACES ARE WELL ETCHED AND "GRAINY TO THE TOUCH.' THE SURFACES SHALL THEN BE RINSED AND SCRUBBED TO REMOVE ALL RESIDUE FROM SURFACE PORES, FOLLOWED BY COMPLETE HOSING WITH PLENTY OF CLEAR WATER TO OBTAIN A CLEAN HARD SURFACE. * * *"

THE BOARD'S HOLDING WAS THAT THE QUOTED SPECIFICATION WAS NOT AMBIGUOUS; THEREFORE, IT WAS NOT NECESSARY TO LOOK TO TRADE CUSTOM AND USAGE TO INTERPRET THE SPECIFICATION. THE BOARD'S INTERPRETATION WAS THAT THE FIRST SENTENCE OF THE QUOTED SPECIFICATION CLEARLY REQUIRED THE REMOVAL OF ALL PAINT DOWN TO THE MASONRY SURFACE. ALSO, IF SANDBLASTING WAS NECESSARY TO ACCOMPLISH THE RESULT, THEN IT WAS REQUIRED BY THE CONTRACT.

YOUR POSITION, EXPRESSED IN YOUR LETTER OF AUGUST 15, 1966, IS THAT PURSUANT TO THE SITE MEETING ON MAY 18, 1964, BETWEEN MARK EDWARDS' AND GOVERNMENT REPRESENTATIVES, AND THE GOVERNMENT'S LETTER OF MAY 20, 1964, IT WAS MARK EDWARDS' UNDERSTANDING THAT HE HAD BEEN ORDERED TO REMOVE ALL THE OLD PAINT. IT IS THE GOVERNMENT'S POSITION THAT AN INSPECTION WAS HELD ON MAY 18, 1964, AT WHICH TIME IT WAS DETERMINED THAT THE MASONRY SURFACE HAD NOT BEEN PROPERLY PREPARED AND MARK EDWARDS WAS INFORMED THAT IT WAS THE GOVERNMENT'S INTERPRETATION THAT MARK EDWARDS WAS REQUIRED TO REMOVE ALL EXISTING PAINT. IT IS THE GOVERNMENT'S POSITION THAT IT AT NO TIME ORDERED THE APPELLANT TO SANDBLAST. THE LETTER OF MAY 20, 1964, FROM THE STAFF PROCUREMENT OFFICER MENTIONS SANDBLASTING IN THE FOLLOWING CONTEXT:

"PURSUANT TO PARAGRAPH 3-06/B) OF THE SPECIFICATIONS, YOU ARE DIRECTED TO CLEAN ALL CONCRETE AND MASONRY SURFACES OF ALL THE OLD PAINT. CLEANING SHALL BE ACCOMPLISHED BY SAND BLASTING, GRIT BLASTING OR POWER BRUSH AND SCRAPING AS SPECIFIED IN PARAGRAPH 3-06/B).' THE BOARD MADE NO SPECIFIC FINDING OF FACT AS TO WHETHER THE GOVERNMENT DID NOR DID NOT ORDER MARK EDWARDS TO SANDBLAST THE SWIMMING POOL.

IN REVIEWING THE BOARD'S INTERPRETATIONS OF THE ABOVE SPECIFICATION, OUR OFFICE PROPOSES TO FOLLOW THE GENERAL RULE--- THAT WHERE THE INTERPRETATION OF A SPECIFICATION IS CONCERNED, THE MEANING TO BE ATTACHED TO IT SHOULD BE THAT GIVEN BY A REASONABLY INTELLIGENT PERSON CONVERSANT WITH THE SUBJECT OF THE SPECIFICATION. SEE APPEAL OF RANDOLPH ENGINEERING COMPANY, ASBCA NO. 4872 (1958) AND APPEAL OF NATIONAL U.S. RADIATOR CORPORATION, ASBCA NO. 3972 (1959). OUR OFFICE DOES NOT HAVE THE TECHNICAL EXPERTISE TO BE CONSIDERED CONVERSANT WITH THE SUBJECT COVERED BY THE SPECIFICATION; THEREFORE, IN ARRIVING AT OUR DECISION WE WILL CONSIDER THE POSITION TAKEN BY YOU AND THE POSITION TAKEN BY THE GOVERNMENT'S TECHNICAL PERSONNEL.

IT IS YOUR POSITION THAT TO "CLEAN" DOES NOT MEAN TO "REMOVE" ALL THE OLD PAINT. IN THIS CONNECTION YOU ASSERT ON PAGE 2 OF YOUR LETTER OF AUGUST 15, 1966:

"THE MEANING OF "CLEAN" AS FREQUENTLY UNDERSTOOD IN THE CONSTRUCTION TRADE MEANS MERELY THE REMOVAL OF ALL CHIPPED AND FLAKED PAINT, AND READY FOR PAINTING ... NOT THE REMOVAL OF ALL OLD PAINT TO THE BARE CONCRETE OR MASONRY SURFACE.' IN THIS RESPECT YOU HAVE FURNISHED VARIOUS TECHNICAL MATERIALS TO OUR OFFICE, WHICH INDICATE THAT THE QUOTED SPECIFICATION IS SUSCEPTIBLE OF SEVERAL DIFFERENT INTERPRETATIONS.

THE GOVERNMENT'S POSITION REGARDING THE INTERPRETATION OF THE SPECIFICATIONS IS STATED AS FOLLOWS IN THE GOVERNMENT'S BRIEF TO THE ASBCA:

"* * * AGAINST THESE OPINIONS, MR. PORR, CHIEF ENGINEER AT MCQUIRE AIR FORCE BASE, INDICATED THAT THE POOLS WHICH HAD BEEN PAINTED YEARLY HAD ACCUMULATED A THICKNESS OF PAINT THAT HAD BECOME IRREGULAR BECAUSE OF THE MANY PAINTINGS AND FOR THIS REASON IT WAS DECIDED TO HAVE THE SURFACES FREE OF ALL OLD PAINT. (TR 280) HE SAID THAT IT IS ALWAYS NECESSARY TO PROPERLY PREPARE THE SURFACE THAT IS TO RECEIVE THE PAINT. (TR 281) THE STATEMENT OF WORK (TP 1-02) SETS FORTH A CHRONOLOGICAL SEQUENCE OF WORK TO BE ACCOMPLISHED BY THE CONTRACTOR. (TR 282 AND 119) IN HIS OPINION, SECTION "B" OF TP 3-06, WHICH DEALS SPECIFICALLY WITH CONCRETE AND MASONRY SURFACES, WHEREIN IT STATES "THOROUGHLY CLEAN ALL OF THE OLD PAINT" MEANT IN HIS PROFESSIONAL OPINION, ALL PAINT WHICH THEN EXISTED IN THE POOL HAD TO BE REMOVED. (TR 282 AND 283) THE REASON FOR WASHING WITH TRI-SODIUM PHOSPHATE AND AN ETCHING OF MURIATIC ACID WAS TO PROVIDE AN ETCHED SURFACE IN ORDER TO MAKE THE PAINT ADHERE SATISFACTORILY. (TR 284) IN FACT, AFTER THE SANDBLASTING THE BOTTOM OF THE POOLS WERE SMOOTH (TR 284). FURTHER, THERE WERE CERTAIN PORTIONS OF THE POOL THAT COULD NOT BE REACHED BY SANDBLASTING SO ONE OF THE OTHER METHODS PROVIDED IN PARAGRAPH "B" WOULD HAVE TO BE USED IN THESE AREAS. (TR 284) HE OBSERVED THE POOLS DURING THE SANDBLASTING OPERATION OF THE APPELLANT AND, IN HIS OPINION, THIS OPERATION DID NOT HURT THE PHYSICAL STRUCTURE OR EFFECT ITS STRENGTH. (TR 287) HE HAD CONTRACTED OTHER PAINTING CONTRACTORS AND THEY CORROBORATED HIS INTERPRETATION OF THE SPECIFICATIONS. (TR 289) IN ADDITION, MR. MILLWARD, THE GOVERNMENT INSPECTOR, WHO HAD BEEN ENGAGED IN THE PAINTING BUSINESS FOR OVER 43 YEARS, TESTIFIED THAT HE HAD PREPARED GOVERNMENT EXHIBITS 2A THRU 2W ON A DAILY BASIS AS TO WHAT WORK THE APPELLANT WAS ACTUALLY DOING ON THOSE PARTICULAR DAYS. HE ALSO STATED THAT IT WAS HIS INTERPRETATION OF THE TECHNICAL SPECIFICATIONS THAT TP 3-06/B) REQUIRED THE REMOVAL OF ALL EXISTING PAINT. (TR 312) HE FURTHER INDICATED THAT THERE WERE PLACES ON THE MASONRY SURFACE THAT CONTAINED NO PAINT. (TR 116) FOR THAT REASON, IT WAS NECESSARY, UNDER THE SPECIFICATIONS, TO HAVE THESE AREAS FREE OF BODY ODORS, ALGAE, ETC., AS THEY WOULD NOT BE SANDBLASTED. * * *"

THE BASIS OF YOUR CONTENTIONS TO OUR OFFICE SEEMS TO BE THAT "CLEAN" DOES NOT EQUAL "REMOVE.' THE SPECIFICATIONS HOWEVER DO NOT SAY THAT THE SURFACE SHOULD MERELY BE "CLEAN" BUT STATE THAT THE CONCRETE AND MASONRY SURFACES SHALL BE THOROUGHLY "CLEANED OF ALL THE OLD PAINT.' IN VIEW OF THE TECHNICAL POSITION OF THE GOVERNMENT, WHICH SEEMS REASONABLE, REGARDING THE INTERPRETATION OF THE SPECIFICATION, IT IS AT LEAST DOUBTFUL WHETHER YOUR INTERPRETATION IS THE INTERPRETATION THAT SHOULD BE ADOPTED. IN THESE CIRCUMSTANCES WE FEEL IT IS THE PROPER COURSE FOR OUR OFFICE TO REJECT THIS ASPECT OF YOUR CLAIM AS BEING TOO DOUBTFUL FOR PAYMENT BY THIS OFFICE. SEE LONGWILL V. UNITED STATES, 17 CT.CL. 288 (1881); CHARLES V. UNITED STATES, 19 CT.CL. 316 (1884); AND B-153023, JUNE 24, 1964.

WITH RESPECT TO WHETHER OR NOT YOU WERE ORDERED TO SANDBLAST THE SWIMMING POOL, THE RECORD AT PRESENT DOES NOT ESTABLISH THIS FACT. MOREOVER, EVEN IF IT WERE ESTABLISHED THAT YOU WERE ORDERED TO SANDBLAST, IT WOULD BE NECESSARY TO DEDUCT THE COST OF ANY GRIT BLASTING OR POWER BRUSH OR SCRAPING WHICH YOU MAY HAVE SAVED BY SANDBLASTING.

WITH RESPECT TO YOUR CLAIM FOR INCREASED COSTS DUE TO ACCELERATING PERFORMANCE THE GOVERNMENT'S POSITION AS STATED IN THE BRIEF TO THE ASBCA IS AS FOLLOWS:

"* * * THE FACT WAS THAT THE APPELLANT WAS BEHIND HIS WORK SCHEDULE. THE GOVERNMENT BECAME CONCERNED AS TO WHETHER OR NOT HE WOULD COMPLETE BY THE DATE SPECIFIED WITHIN THE CONTRACT AND ACCORDINGLY ISSUED A "CURE NOTICE.' (TR 224, 226 AND 228) AS TESTIFIED TO BY THE BASE PROCUREMENT OFFICER, COLONEL SIMPSON AND MR. DIGGS, THE SPECIAL PROVISION SP 1-06, ENTITLED ,PROGRESS CHARTS" REQUIRED THE APPELLANT TO WORK OVERTIME, IF NECESSARY, TO COMPLETE THE JOB WITHIN THE CONTRACT PERIOD. (TR 228 AND 324) MR. KOTH TESTIFIED THAT ALTHOUGH HE HAD LOTS OF PRESSURE IN GETTING THE JOB DONE THAT HE DID NOT PAY ANY ATTENTION TO IT (TR 210). COLONEL SIMPSON, MR. AJA AND MR. DIGGS ALL TESTIFIED THAT THEY HAD NEVER IN ANY MANNER OF FORM DIRECTED THE APPELLANT TO COMPLY WITH OTHER THAN A CONTRACT COMPLETION DATE. THEY WERE, HOWEVER, CONCERNED WITH WHETHER OR NOT THE APPELLANT WOULD COMPLETE THE CONTRACT WITHIN THE TIME SPECIFIED AND WERE THEREFORE URGING THE APPELLANT TO COMPLETE THE CONTRACT AS REQUIRED. (TR 224, 227, 265 AND 325) IN FACT, THE APPELLANT DID NOT COMPLETE THE CONTRACT WHEN REQUIRED BUT WAS ALLOWED ADDITIONAL TIME TO COMPLETE. (TR 228)" PURSUANT TO OUR REVIEW OF THIS ASPECT OF YOUR CLAIM IT HAS NOT BEEN SUBSTANTIATED THAT THE GOVERNMENT'S ACTION IN REGARD TO THIS MATTER RESULTED IN ANY BREACH OF YOUR CONTRACT.

IN REGARD TO YOUR CLAIM FOR "JOINT REMOVAL" THE ASBCA STATED AS FOLLOWS IN ITS DECISION OF NOVEMBER 24, 1965:

"* * * IT WAS CLAIMED THAT THE DEPTH OF THE JOINTS AND THE MANNER IN WHICH THEY HAD ORIGINALLY BEEN CAULKED MADE THIS WORK MORE DIFFICULT THAN HAD BEEN ANTICIPATED. THE GOVERNMENT PRODUCED TESTIMONY THAT ANY SUCH DIFFICULTY WAS ENCOUNTERED ONLY IN A FEW AREAS, AND THAT, IN ANY EVENT, THE REQUIREMENTS WERE RELAXED. THIS PORTION OF THE CLAIM IS ALSO DENIED.' THE ASBCA HAS NOT MADE DETAILED FACTUAL FINDINGS WITH RESPECT TO THIS ASPECT OF YOUR CLAIM AND THE RECORD BEFORE OUR OFFICE IS NOT SUFFICIENT TO PERMIT A DETERMINATION OF THIS CLAIM.

IN THESE CIRCUMSTANCES WE FEEL THAT YOUR CLAIMS FOR ACCELERATING PERFORMANCE AND FOR THE ALLEGED DIFFICULTIES IN "JOINT REMOVAL" ARE ALSO OF SUCH DOUBTFUL VALIDITY THAT THEY MAY NOT BE PAID BY OUR OFFICE. SEE THE LONGWILL AND CHARLES CASES, SUPRA. ..END :