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GRANTED IN PART: January 11, 2001______________________________________
GSBCA 14744, 14877
HENSEL PHELPS CONSTRUCTION CO.,
GENERAL SERVICES ADMINISTRATION,
David P. Dapper of Wickwire Gavin, Los Angeles, CA; and Stephen B. Hurlbut ofWickwire Gavin, Vienna, VA, counsel for Appellant.
Dalton F. Phillips and Sharon J. Chen, Office of General Counsel, General ServicesAdministration, Washington, DC, counsel for Respondent.
Before Board Judges BORWICK, NEILL, and DeGRAFF.
NEILL, Board Judge.
These appeals concern two claims brought by Hensel Phelps Construction Co.(HPCC) regarding construction of a complex to house offices and laboratories of theNational Oceanic and Atmospheric Administration (NOAA) in Boulder, Colorado. Asubstantial part of both claims includes a claim of HPCC's mechanical subcontractor for theproject, Trautman & Shreve, Inc. (T&S). The first claim is for the costs associated with theinstallation of vibration isolation on certain piping. The parties disagree as to whether thiswas a contract requirement. The second claim is for a loss of productivity allegedly resultingfrom actions and inactions on the part of the Government and its agents. Because the twoclaims relate to the same project, we have consolidated them here for purpose of decision.For the reasons set out below, we conclude that the Government is liable for the majority ofthe costs sought by HPCC in the two claims.
Findings of Fact
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1In accordance with Board Rule 104(a) and (b) the parties have made several appeal filesubmissions -- some in connection with the individual appeals and some consolidatedsubmissions covering both GSBCA 14744 and GSBCA 14877. The Government'ssubmissions are as follows:
1. Appeal File, GSBCA 14744 (four volumes) 2. Appeal File, GSBCA 14877 (one volume)3. Respondent's Supplemental Appeal File (Consolidated) (twenty-seven volumes)
The Appellant's submissions are as follows:
1. Appellant's Supplemental Appeal File, GSBCA 14744 (twovolumes)2. Appellant's Supplemental Appeal File, GSBCA 14877 (onevolume)3. Appellant's Supplemental Appeal File (Consolidated) (fivevolumes)
2 We note here that the terminology used by fact and expert witnesses in speaking of theseblocks is not altogether consistent. Some use the term "block" while others refer to anindividual block as a "building." Our practice here is to use the term which actually appearson the page of the transcript or the document being cited.
1. On September 23, 1996, the General Services Administration (GSA) awarded acontract (the contract) to HPCC for the construction of a new building for NOAA inBoulder, Colorado. The contract award amount totaled $50,002,000. Appeal File, GSBCA14744, Vol. 1, Exhibit 1.1 The contract stated that this new federal building was a facilitydesigned to meet the specific needs of designated divisions within NOAA. The buildingwas to embrace a gross construction area of approximately 372,000 square feet. The first,second and third floors were to be fully above grade, while a garden level, partially belowgrade, was to be a partial floor plate composed of both occupied areas and major mechanicalequipment spaces. Id., Vol. 1, Exhibit 1 at 01010-2. The building in its entirety was to besubdivided into four separate blocks or "buildings," namely, blocks A, B, C, and D.2Respondent's Supplemental Appeal File, Vol. 24, Exhibit G235 (Exhibit 1). The blocksdiffered significantly among themselves based upon the character of the work that was tobe performed in them. Block A was to consist primarily of laboratories. It also was to houseon its ground level the major mechanical room where the chillers are located. Block D alsocontained equipment rooms and some laboratories. Blocks B and C were to be office-oriented with mostly offices and computer rooms. Transcript at 2452-53. In initiatingconstruction of the building, HPCC followed a reverse sequence starting first with block Dand then proceeding, in turn, to blocks C, B, and A. Id. at 823.
2. HPCC's contract contained the standard Changes clause required for constructionclauses under the Federal Acquisition Regulation (FAR). 48 CFR 43.205(d) (1996) (FAR48.205(d)). The August 1987 version of the clause, which was applicable at the time the
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solicitation was issued, contained the following provision which is of particular relevanceto these appeals:
FAR 52.243-4 CHANGES (AUG 1987)
(d) If any change under this clause causes an increase or decrease in theContractor's cost of, or the time required for, the performance of any part ofthe work under this contract, whether or not changed by any such order, theContracting Officer shall make an equitable adjustment and modify thecontract in writing.
Appeal File, GSBCA 14744, Vol. 1, Exhibit 1 (GSA Form 3506 at 30-31). During the lifeof the contract, the Government issued forty-five change orders involving T&S.Respondent's Supplemental Appeal File, Vol. 23, Exhibit G234 (Exhibit 12). The contractalso contained the FAR Inspection of Construction clause. One provision of that clause ofparticular relevance to these appeals reads:
FAR 52.246-12 INSPECTION OF CONSTRUCTION (JULY 1986)
(d) The presence or absence of a Government inspector does not relievethe Contractor from any contract requirement, nor is the inspector authorizedto change any term or condition of the specification without the ContractingOfficer's written authorization.
Appeal File, GSBCA 14744, Vol. 1, Exhibit 1 (GSA Form 3506 at 16).
3. Division 15 of the specifications in HPCC's contract with GSA for theconstruction of the new NOAA building is entitled "Mechanical." In this section one findsthe mechanical specifications for the NOAA project. Appeal File, GSBCA 14744, Vol. 1,Exhibit 1 at TC-4. On October 10, 1996, HPCC and T&S entered into a subcontract totaling$7,840,014. Pursuant to this subcontract, T&S agreed to perform nearly all of the workcalled for in Division 15 of HPCC's contract with GSA. Of all the sections in Division 15,only the work in Sections 15325 (fire protection), 15981 (building automation system), and15990 (testing, adjusting and balancing) were reserved for award to a subcontractor otherthan T&S. Id., Vol. 4, Exhibit 3 at 3. T&S is one of the largest mechanical contractors inthe state of Colorado. Transcript at 402.
4. By letter dated October 28, 1996, GSA's contracting officer (hereinafter the"contracting officer") issued to HPCC a notice to proceed with the contract, with completionto be by November 8, 1998. Respondent's Appeal File, GSBCA 14744, Vol. 14, ExhibitG11.
5. The first contract GSA awarded for the design of the new NOAA building waseventually terminated for default in 1991. Shortly thereafter GSA awarded anarchitectural/engineering (A/E) contract to the firm of Fentress Bradburn and Associates(FBA). This contract was also beset with problems and came close to being terminated fordefault. Nevertheless, the decision was made not to terminate. FBA submitted a final
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design in the summer of 1994. Transcript at 427-31; Appellant's Supplemental Appeal File,Vol. 1, Exhibits 118, 119.
6. GSA retained CRSS Constructors (CRSS) as its construction manager and to actas GSA's representative during construction of the NOAA project. As GSA's representativeon the project, CRSS was responsible for handling communications with GSA's consultantsand with the contractor. This included processing requests for information (RFIs),negotiating change orders, providing construction phase engineering services, reviewingschedules, making field observations, and undertaking some inspection responsibilities.Transcript at 419, 2298-99.
7. A mechanical engineering firm, BCER, was retained to assist CRSS on technicalmatters. This was not the firm which had worked earlier with FBA. FBA had been assistedby the firm of Reigel Doyle & Associates (RDA). Transcript at 83.
GSBCA 14877: Vibration Isolation Claim
I. The Isolation of Plumbing Piping
8. The president and chief executive of T&S testified regarding vibration isolationand provisions made for it in T&S's bid. This witness has had a wide variety of experiencein the field of mechanical contracting. He started as a pipe-fitter apprentice in 1970 andgradually worked his way upward to the ranks of supervisory foreman, general foremansuperintendent, and eventually project manager. In 1986, he became managing vicepresident in charge of all company operations. In 1991, he became company president.Transcript at 19-20.
9. This witness testified that vibration isolation consists of various means of reducingor eliminating the transmission throughout a structure of vibration from mechanicalequipment, typically reciprocating equipment from heating, ventilation and air conditioning(HVAC) equipment such as a chiller. Common means of vibration isolation include rubberpads placed underneath equipment and pipe hangers incorporating spring isolators or, forsmaller diameter pipe, rubber-in-sheer hangers which use a rubber isolator rather than aspring. Transcript at 27-30; Appellant's Trial Exhibits 1, 2A, 2b. The witness furtherexplained that vibration isolation is commonly specified for HVAC piping because suchpiping is connected to reciprocating equipment and consequently requires vibration isolatorsto eliminate or reduce the transmission of vibration from the equipment through the pipes.Transcript at 33.
10. One matter of dispute in this appeal is