ARMED SERVICES BOARD OF CONTRACT APPEALS
Appeal of -- )
)
Gilbane Building Company ) ASBCA No. 57206
)
Under Contract No. W9126G-07-C-0043 )
APPEARANCE FOR THE APPELLANT: Paul H. Sanderford, Esq.
Sanderford & Carroll, P.C.
Temple, TX
APPEARANCES FOR THE GOVERNMENT: Thomas H. Gourlay, Jr., Esq.
Engineer Chief Trial Attorney
Lloyd R. Crosswhite, Esq.
District Counsel
Kendra M. Laffe, Esq.
Dawn-Carole Harris, Esq.
Engineer Trial Attorneys
U.S. Army Engineer District, Ft. Worth
OPINION BY ADMINISTRATIVE JUDGE JAMES
This appeal arises from the contracting officer's (CO's) February 2010
decision which denied the $167,275 certified claim of Gilbane Building Company
(Gilbane) that alleged the wrongful government rejection of Gilbane's first elevator
subcontractor, PKD, Inc. (PKD). The Board has jurisdiction of the appeal under the
Contract Disputes Act of 1978, 41 U.S.C. §§ 7101-7109. The parties have agreed to
submit the appeal on the written record under Board Rule 11. The record includes the
government's Rule 4 file and the declarations submitted with the parties' briefs. We
decide entitlement only.
FINDINGS OF FACT
1. On 11 June 2007, the U.S. Army Engineer District, Fort Worth (USACE)
issued Solicitation No. W9126G-07-R-0072 for completion of design and
construction of the Battlefield Health and Trauma (BHT) Research Facility,
Fort Sam Houston, Texas (R4, tab 4 at 11).
1
Rule 4 cites are to Bates numbers less extra Os, e.g., page "4-000002" is "R4, tab 4 at 2."
2. On 29 September 2007, the USACE awarded Contract No. W9126G-07-C-0043
(BHT contract) to Gilbane for the BHT Research Facility for a $91,998,321 "Guaranteed
Maximum Price" (R4, tab 4 at 2-4, 6).
3. The BHT contract included, inter alia, the FAR 52.233-1, DISPUTES
(JUL 2002}-ALTERNATE I (DEC 1991) and 52.243-4, CHANGES (AUG 1987) clauses
(R4, tab 4 at 90, 116, 121, 128).
4. The BHT contract specifications,§ 01 33 00, "SUBMITTAL
PROCEDURES," provided in pertinent part:
1.4 APPROVED SUB MITTALS
The [CO' 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 satisfactory. Approval will not relieve the
Contractor of the responsibility for any error which may exist,
as the Contractor ... is responsible for ... the satisfactory
construction of all work. ...
1.5 DISAPPROVED SUBMITTALS
The Contractor shall make all corrections required by the
[CO] and promptly furnish a corrected submittal in the form
and number of copies specified for the initial submittal. If the
Contractor considers any correction indicated on the
submittals to constitute a change to the contract, a notice in
accordance with the Contract Clause "Changes" shall be
given promptly to the [CO].
1.9 SCHEDULING
Submittals covering component items forming a system or
items that are interrelated shall be ... coordinated and
submitted concurrently. Certifications to be submitted with
the pertinent drawings shall be so scheduled. Adequate time
(a minimum of 21 calendar days exclusive of mailing time)
shall be allowed ... for review and approval. ...
2
1.11.2 Deviations
For submittals which include proposed deviations requested
by the Contractor, the column "variation" of ENG Form 4025
[TRANSMITTAL] shall be checked ....
a. Contractor-proposed deviations, including
variations and other departures from the contract
requirements, shall be noted/marked in red on each copy
of the submittal data and shall be provided with a letter
attachment to the ENG Form 4025 summarizing the
proposed variation, deviation, or departure. Variations,
deviations, or departures shall contain sufficient
information to permit complete evaluation.. . . At the
minimum the information shall include:
(1) An explanation in detail of the reason for the
variation and how it differs from that specified;
(2) The cost difference; and
(3) How the variation will benefit the Government.
(R4, tab 4 at 222, 224, 226)
5. The BHT contract specifications,§ 14 21 23, "ELECTRIC TRACTION
PASSENGER AND SERVICE ELEVATORS,"~ 1.2, "SUBMITTALS," required
government approval of shop drawings, product data, design data calculated by a
"Registered Professional Engineer," test reports, and certificates of all required state
and local licenses of individuals performing for elevators and accessories "Quality
Assurance for Elevator Inspector ... Qualifications." Section 14 21 23, ~ 1.3,
"ELEVATOR SYSTEM," stated:
Provide pre-engineered elevator system, by manufacturer
regularly engaged in the manufacture of elevator systems, that
complies with ASME Al 7.1 in its entirety, ASME Al 7.2l2l in
its entirety, and additional requirements specified herein.
Submit detail drawings including:
2
ASME Al 7.1, Al 7.2 and Al 7.3 are not in the appeal record.
3
dimensioned layouts in plan and elevation showing the
arrangement of elevator equipment, accessories, and data
sheet showing all:
a. [S]upporting systems,
b. Anchorage of equipment,
c. Clearances for maintenance and operation;
d. Details on hoistway,
e. D