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ARMED SERVICES BOARD OF CONTRACT APPEALS
Appeal of - )
)
Patricia I. Romero, Inc. dba Pacific West ) ASBCA No. 62627
Builders )
)
Under Contract No. N62473-l l-D-0065 )
APPEARANCE FOR THE APPELLANT: David A. Rose, Esq.
Rose Consulting Law Firm
Valdosta, GA
APPEARANCES FOR THE GOVERNMENT: Craig D. Jensen, Esq.
Navy Chief Trial Attorney
Jerry Kim, Esq.
Trial Attorney
OPINION BY ADMINISTRATIVE JUDGE EYESTER
ON THE GOVERNMENT’S MOTION FOR SUMMARY JUDGMENT
Patricia I. Romero, Inc. doing business as Pacific West Builders (PWB) appeals
the partial denial of its claim for compensation related to the abatement of asbestos,
and demolition and replacement of corridor walls at a building located on Marine
Corps Base Camp Pendleton, California. The Department of the Navy (Navy or
government) filed a summary judgment motion asserting that PWB cannot establish
entitlement for its claim that the asbestos was unforeseen or the result of defective
specifications or its claim for compensable delay. For the reasons set forth below, we
grant the motion in part and deny the remainder.
STATEMENT OF FACTS FOR PURPOSES OF THE MOTION
Contract and Task Order
On September 22, 2011, Naval Facilities Engineering Systems Command
Southwest (NAVFAC SW) awarded indefinite delivery, indefinite quantity (IDIQ)
multiple award construction contract (MACC) No. N62473-11-D-0065 to PWB (R4,
tab 1 at 1-2). The contract was for new construction and renovation of various facilities
located in the NAVFAC SW area of responsibility which included California (id. at 1).
As relevant to this motion, the contract incorporated by reference Federal Acquisition
Regulation (FAR) 52.236-2, DIFFERING SITE CONDITIONS (APR 1984) and
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explained that all task orders were subject to the terms and conditions of the contract
(id. at 26, 105).
In July of 2014, NAVFAC SW issued a request for proposals to all MACC
awardees for the design-build repair of the 13,245 square foot Battalion Building 53423
(Building 53423) at Marine Corps Base Camp Pendleton (gov’t ex. 1 at 21-23, 26).
Offerors were required to submit a fixed-priced proposal for all labor, equipment, and
materials to accomplish the work (R4, tab 6 at 135).
The RFP’s overall project description explained that the contractor was to,
among many other things, “remove and dispose of all existing hazmat materials prior
to construction” including asbestos removal, abatement, and clean-up as necessary;
replace or repaint “[a]ll ceiling, wall, base and floor surfaces;” “[r]eplace interior non-
load bearing partition walls;” and “remove the walls as needed to reconfigure the
spaces” noting that if additional walls needed to be removed during construction, it
would be handled as a modification (R4, tab 6 at 321-22). With respect to hazardous
materials, there was a pre-award request for information (RFI), RFI 20, seeking a
hazardous materials report for the building. In response, the agency stated:
A: Unfortunately[,] we do not have a Hazardous Materials
report for Building 53423. However, based on recent
projects in buildings built at the same time and from
similar plans, we assume the following:
• At a minimum asbestos is present in the roof mastic,
window caulking and hot-water piping insulation elbows,
and will need to be abated. . . . Most of the vinyl floor tile
has been replaced recently enough that it should not
contain asbestos, but there may be traces of old asbestos
mastic remaining underneath, and there may be small
amounts of the original asbestos tiles under the wall
framing where interior walls are being demolished.
• At a minimum lead based paint is present on painted
metal window frames, door frames and handrails, and will
need to be abated if disturbed. . .
These items should be assumed to be present, and base
bids should include costs for Lead and Asbestos surveys,
and the abatement of the items listed above. Additional
materials that are discovered during surveying will be
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considered unforeseen and handled with a contract
modification.
(Id. at 149) (emphasis added) The Navy incorporated this RFI and response into the
RFP via amendment 01 (id. at 145).
On September 11, 2014, NAVFAC SW awarded PWB a fixed-priced task order
in the amount of $4,334,343 for the renovation of Building 53423 (R4, tab 9 at 1306).
According to the task order, the government accepted PWB’s technical and price
proposals dated August 21, 2014, to complete the work in accordance with the RFP, as
amended (id. at 1319). The completion date of the project was March 19, 2016, 555
calendar days from the date of award (R4, tab 13 at 1462).
Asbestos Surveys
Prior to construction, on April 24, 2015, PWB issued its final submittal basis of
design report prepared in coordination with its designer of record (R4, tab 26
at 1479-80). PWB’s design report included a consultant’s Asbestos & Lead Paint
Survey Report dated January 7, 2015 (id. at 1861, 1863-64). The consultant bulk
sampled 12”x12” and 9”x9” assorted color floor tiles and associated floor mastic in
composite form throughout the first and second floors. The analyses indicated
asbestos in the brown 9”x9” floor tiles and associated floor mastic, which was
classified by regulation as non-friable 1 asbestos containing material (ACM). As the
building was occupied and the floors covered with carpet, the report estimated that
about 3,000 square feet of this ACM needed to be removed by a licensed asbestos
abatement contractor prior to demolition. (Id. at 1863)
PWB requested further asbestos testing, which was conducted on January 29,
2015. The same consultant collected samples of additional items including 12”x12”
black vinyl floor tiles in the corridors. (R4, tab 26 at 1873) The test did not show
asbestos in this floor tile (see id.).
PWB submitted an RFI on May 5, 2015, stating that ACM was present in
approximately 3,000 square feet of mastic, as well as an unknown amount in floor
tiles, and in an amount far exceeding “trace.” PWB further stated the consultant
surveyed non-obvious locations and edges of the vinyl floor but did not perform
destruction testing. Further, as vinyl tile had been replaced recently, PWB asked the
government whether there was an accurate estimate of ACM performed at that time.
PWB recommended further analysis to accurately quantify the amount of ACM, which
1
Based on the record, we define “friable” as the ability to release airborne fibers
(gov’t ex. 8 at 2).
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would involve chipping away small areas of vinyl tile to expose the material
underneath. On May 11, 2015, the government construction manager agreed that
PWB should perform the necessary testing to confirm whether there was asbestos in
excess of the RFP language using selective destructive testing. (R4, tab 27)
A May 15, 2015 consultant report set forth the findings of the additional
asbestos sampling performed. The consultant sampled various size and color floor
tiles and mastic on the first and second floors of the building and noted that “[t]he
main concern of this survey episode [was] to determine the asbestos content of the
multi-layer floor tiles throughout the common areas and individual rooms of the
building” because the original floors were recovered with different tiles over the years.
(Gov’t ex. 2 at 1) The report found the presence of asbestos fibers in the samples
collected from the 9”x9” floor tiles of assorted colors and the black floor mastic
throughout the entire first and second floors but stated these were classified by
regulation as non-friable. The report presumed a quantity of approximately 12,000
square feet of the asbestos containing floor tiles in the common areas and the offices
and 12,000 square feet of black floor mastic materials (under the floor tiles and
adhered to the concrete). The recommendation was removal of the floor tiles and floor
mastic by a licensed asbestos abatement contractor prior to demolition activities. (Id.
at 2)
Modifications and Requests for Modifications
A few weeks later, PWB submitted a design change request memorandum dated
June 2, 2015, for office wall demolition and replacement. The request asserted that
asbestos was likely to be present underneath 19 office separation walls which were to
remain, and therefore the removal of the 19 walls would facilitate overall ACM
removal. (Gov’t ex. 4 at 1)
On June 16, 2015, PWB submitted a design change request memorandum for
asbestos floor tile and mastic, stating that the answer to RFI 20 regarding trace
amounts of asbestos was incorrect. The stated reason for the change was that
“[a]sbestos floor products can conclusively be presumed to be present in all corridors
and offices” and must be removed prior to the renovation of the building. The request
included removal of approximately 12,000 square feet of ACM tile and mastic. (Gov’t
ex. 3 at 1, 3)
On October 16, 2015, the parties executed bilateral Modification No. 03 to the
task order pursuant to FAR 52.236-2, DIFFERING SITE CONDITIONS (APR 1984)
(R4, tab 33). In the modification, the parties agreed that PWB would abate
approximately 12,000 square feet of ACM (flooring tile and mastic). The modification
incorporated by reference the April 24, 2015 final design, increased the total task order
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price by $118,547, and extended the completion date by 142 calendar days (14 of them
compensable) to August 8, 2016. (R4, tab 33 at 2171)
The parties also executed Modification No. 04 with an effective date of
November 3, 2015 (R4, tab 34 at 2174). This modification increased the total task
order price by $19,913 for the “selective demolition of interior walls to facilitate
proper abatement of asbestos floor tiles as part of Building 53423 renovation efforts as
per [PWB] proposal submitted on June 3, 2015.” The task order completion date
remained unchanged. (Id. at 2176)
At some point after construction began, an issue arose which is at the heart of
this appeal concerning the corridor walls and asbestos abatement. In this regard, on
March 30, 2016, PWB submitted a cost proposal for its proposed change to demolish
and replace the corridor walls in the amount of $163,234, noting that if the negotiation
and approval went beyond a certain date, it would add $941.43 for each additional day.
PWB stated it discovered asbestos containing floor tile and mastic underneath the
concrete mop curbs 2 in the corridors. (R4 tab 63.2 at 2529) The next day, PWB
informed the government that effective April 4, 2016, it would suspend operations at
the project and could not maintain its critical path as the corridor walls were required in
order to install heating trunk lines (id. at 2532).
In addition, on that same day, PWB submitted a revised time impact analysis
with a narrative seeking a 37-day extension of the task order completion date (R4,
tab 63.2 at 2534; gov’t ex. 6 at 1-2). On the analysis, PWB indicated its current
schedule of the project was 102 days behind but noted it had submitted a recovery
schedule resolving 65 days and leaving PWB behind only 37 days (gov’t ex. 6 at 2).
In response, on April 4, 2016, the government construction manager told PWB to
submit a FRAGNET for the “asbestos unforeseen” to try and include it in a
modification and include all related work and impact to successor activities in the
critical path model (R4, tab 63.2 at 2534).
On May 19, 2016, PWB informed the government that the effect of the
proposed modification on the task order completion date was 31 calendar days during
construction related to the corridor wall activities and 30 calendar days related to
standby through April 29, 2016, and then additional days after that time (R4, tab 63.2
at 2551). By June 8, 2016, the government had the funds for the asbestos removal and
corridor wall repair replacement (id. at 2542, 2553).
2
According to PWB, a mop curb is typically “planted on the face of the wall” and looks
“like [a] concrete baseboard.” App. resp. ex. 1, aff. of PWB Pres. ¶¶ 6-7, 13.
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Months later, on September 2, 2016, the government asked PWB questions
relating to asbestos removal and removal and replacement of the corridor walls (R4,
tab 63.2 at 2559-60). On October 27, 2016, PWB’s consultant stated PWB should
isolate and contain the areas surrounding the newly discovered asbestos containing
strips, stop construction activities in the area to avoid disturbing the strips, and
perform abatement work (id. at 2565).
On October 31, 2016, the contracting officer informed PWB it would not
proceed with the recommended change to demolish and replace the four non-load
bearing walls (R4, tab 63.2 at 2567-68). According to a Navy structural engineer, the
current status of the non-load bearing walls did not pose a safety risk to the building’s
inhabitants (R4, tab 48 at 2237). The contracting officer instructed PWB to proceed
with the remaining items on the task order and stated the schedules submitted after
April 2016 were noncompliant (id. at 2237-38).
On November 3, 2016, the Marine Corps Base Camp Pendleton Asbestos
Program Manager conducted a site visit and observed the interior partitions, noting
that the concrete curbs “were built against the footers and drywall in lieu of
baseboards” and the partitions were built “over existing 9”x9” and 12”x12” [vinyl
composition tile (VCT)]/mastic that tested positive for asbestos” and further that “the
VCT found under the footer was an ‘unforeseen’” (gov’t ex. 8 at 1-2). The program
manager noted that some of the steel studs and footers were corroded and would
require replacement and that PWB’s stance was to demolish the interior partitions,
abate the remaining VCT and rebuild the interior studs because PWB could not “tell
how far the corrosion extends without disturbing the VCT/mastic.” The program
manager noted that “any additional funding from NAVFAC is difficult and that
[Facilities Engineering and Acquisition Division] would prefer to leave as much of the
interior partitioning in place as possible, with abatement taking place during
demolition or future renovation.” The program manager noted that no regulation
required abatement, but he would “prefer” asbestos be removed if there was available
funding. (Gov’t ex. 8 at 1)
In addition, the program manager advised the Camp Pendleton construction
manager that as long as the tile/mastic remained under the footer and not disturbed it is
non-friable but if it is disturbed the asbestos becomes friable and a concern. Further,
as some of the studs and footers were corroded and needed to be replaced, the VCT
would likely be disturbed during normal construction which would trigger regulatory
requirements and mandate abatement (disturb means grinding, chipping, drilling, use
of power tools). Again, the program manager recommended abatement if the funding
was available as it was “much safer than trying NOT to disturb the asbestos” and
“spot” abatement to fix the problem footers and studs was equal to the effort and
expense of abating it all. (Gov’t ex. 8 at 2)
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Starting October 31, 2016, PWB’s President began emailing the contracting
officer with detailed concerns about the ACM, namely that asbestos abatement was
required since PWB discovered more asbestos containing tile, previously not known to
have existed, when it cut new door openings into the corridor wall (R4, tab 49
at 2239-40). PWB explained that as the remaining construction work such as
installing door frames, thresholds, and new flooring would likely disturb the asbestos
and cause it to become friable, the environmental consultant recommended removal
(id. at 2239). PWB further stated that it needed to remove the concrete curb, which
required removing the corridor wall due to the improper way the concrete curb was
installed (it encased the wall framing in the concrete) (id. at 2239, 2242). PWB
stated it was not aware the concrete mop curb was installed after the corridor wall
was constructed and on top of the existing vinyl asbestos flooring (id. at 2239).
On November 16, 2016, PWB submitted an RFI concerning the demolition of
the corridor wall and mop curb for the vinyl asbestos tile and mastic abatement
underneath the curb (R4, tabs 50, 50.1). In response, the government stated it did not
direct PWB to demolish the walls or abate the asbestos and therefore the government
canceled the demolition on October 31, 2016 (R4, tab 52.1). PWB’s President
resubmitted the RFI on November 17, 2016, stating again that the need for abatement
of asbestos under the mop curbs, which runs the length of the corridor walls, was
required (R4, tab 52 at 2254). Days later, on November 21, 2016, PWB informed the
government that it would proceed with the abatement and demolition and replacement
of the corridor walls and that as the work was not within the scope of the task order, it
would submit a request for equitable adjustment (REA). (R4, Tab 63.2 at 2580-81)
The REA and Claim
On March 2, 2017, PWB submitted its REA seeking $410,997.64 for the
abatement, demolition, and replacement of the corridor walls (R4, tab 59.1). The
amount was broken into the following cost items: abatement and demolition costs;
framing and drywall costs; working general conditions costs; standby general
conditions costs; daily general conditions costs; and attorney’s fees (id. at 2282-83).
The government did not respond to the REA, and on January 26, 2018, PWB
submitted a certified claim for $411,472.64 to the contracting officer (R4, tabs 63,
63.1, 63.2).
The government issued bilateral Modification No. 07 on September 12, 2019,
which partially settled the claim for $106,421 (R4, tab 64 at 2620, 2622). The
modification addressed abatement and demolition work, framing and drywall costs,
and PWB’s overhead (id. at 2622). PWB retracted its claimed costs for daily general
conditions during settlement negotiations (R4, tab 65 at 2628).
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On May 7, 2020, the contracting officer issued a final decision on the remaining
portions of the claim and concluded that PWB was not entitled to any compensable
delays related to working general conditions because the government did not direct
performance of the work. The contracting officer found partial entitlement for standby
general conditions, acknowledging 95 days of compensable delay for a total amount of
$80,374.75 and a time extension for 197 days claimed. However, the contracting
officer concluded that 102 days were not compensable since PWB’s March 2016 time
impact analysis showed it was 102 days behind schedule. (R4, tab 65 at 2628-29) The
final decision found entitlement to the attorney’s fees for preparation of the REA and
explained that the government issued Modification No. 07 because it received a
benefit for the abatement and the replaced walls but maintained that the abatement was
not required (id.).
PWB appealed the final decision to the Board on August 4, 2020. After that, the
government issued unilateral task order Modification No. 09 which, pursuant to the
findings of the final decision, increased the total price by $85,287.25, and extended the
task order completion date by 197 days, from August 8, 2016 to February 21, 2017,
finding 102 days were non-compensable and 95 were compensable (gov’t ex. 13 at 1-2).
DECISION
In its complaint, PWB argues it relied on government specifications and
directions regarding the amount of ACM that could be present inside Building 53423
(compl. at 5). PWB argues it discovered additional ACM under the concrete mop curb
and was therefore delayed and suffered additional costs due to an unforeseen site
condition, or in the alternative defective specifications, and the failure of the Navy to
quickly address the issue (id. at 4-5). Accordingly, PWB contends it is entitled to
working general conditions and standby general conditions costs (see id. at 3, 5). The
Navy has moved for summary judgment seeking dismissal of the entire appeal.
Specifically, the Navy has set forth three arguments countering PWB’s working
general conditions claim that the asbestos was unforeseen or the result of defective
specifications, and one argument countering the claim for standby costs (gov’t mot.
at 19-26).
Summary judgment is appropriate only if there is no genuine issue as to any
material fact and the moving party is entitled to judgment as a matter of law. Celotex
Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). A material fact is one that may affect the
outcome of the decision. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986).
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Working General Conditions Claim
Type I Differing Site Condition
As noted, PWB contends the asbestos under the mop curb was an unforeseeable
condition (compl. at 4). The Navy has moved for summary judgment arguing that
PWB cannot meet the test for a Type I differing site condition because the asbestos
under the mop curb was foreseeable (gov’t mot. at 22-24).
The governing clause, FAR 52.236-2, DIFFERING SITE CONDITIONS
(APR 1984), explains that there are two types of differing site conditions:
(1) “[s]ubsurface or latent physical conditions at the site which differ materially from
those indicated in this contract” (Type 1); or (2) “[u]nknown physical conditions at the
site, of an unusual nature, which differ materially from those ordinarily encountered
and generally recognized as inhering in work of the character provided for in the
contract” (Type 2). (R4, tab 1 at 26, 105; FAR 52.236-2(a)). PWB must prove the
following for a Type 1 differing site condition:
(1) the condition indicated in the contract differs
materially from those actually encountered during
performance; (2) the conditions actually encountered were
reasonably unforeseeable based on all information
available to the contractor at the time of bidding; (3) the
contractor reasonably relied upon its interpretation of the
contract and contract-related documents; and (4) the
contractor was damaged as a result of the material
variation between expected and encountered conditions.
Comtrol, Inc. v United States, 294 F.3d 1357, 1362 (Fed. Cir. 2002) (citation omitted);
Optimum Servs., Inc., ASBCA No. 58755, 15-1 BCA ¶ 35,939 at 175,653 (citing
Stuyvesant Dredging Co. v. United States, 834 F.2d 1576, 1581 (Fed. Cir. 1987)).
The Navy argues that asbestos containing floor tile and mastic under the mop
curb of the corridor walls was foreseeable because RFI 20 stated there could be small
amounts of ACM under the interior wall frames to be demolished (gov’t mot. at 22-23).
The Navy asserts that interior walls include corridor walls and relies on PWB’s request
for a design change as support, whereby PWB states that asbestos floor products could
conclusively be presumed present in all corridors and offices (id. at 23 (citing gov’t
ex. 3 at 1)). Further, the Navy argues that the ACM was foreseeable because PWB’s
design called for cutting new doors in the corridor walls, its own consultants’ reports
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and surveys showed there was ACM present in the floor tiles, and PWB sought to abate
approximately 12,000 square feet of the building based on these reports (id. at 23-24). 3
According to PWB, the ACM was not foreseeable because the concrete mop curb
was not part of the original construction as believed and constructed unconventionally
by pouring the concrete into the cavity of the wall encapsulating the wall framing
member (app. resp. at 4; ex. 1, aff. of PWB Pres. at ¶ 6). 4 Further, PWB argues the
following distinctions between corridor and interior walls: corridor walls run the length
of the building and have mop curbs while interior walls divide the open spaces on either
side of the corridor into smaller rooms and do not have mop curbs; and corridor walls,
unlike interior walls, are placed at the time of construction with the frame and do not sit
on top of flooring (app. resp. at 1-2, 4; ex. 1, aff. of PWB Pres. at ¶¶ 4, 5). Therefore,
PWB argues there was no reason to suspect floor tile or mastic would be under the mop
curb of the corridor walls or that the mop curbs had been installed such that it laid on top
3
The Navy assumes PWB is arguing a Type 1 differing site condition (gov’t mot.
at 22). We note that with respect to a Type 2 differing site condition the
contractor must prove the recognized and usual conditions at the site, the actual
physical conditions encountered and that they differed from the recognized and
usual, and that the different conditions caused an increase in the cost of contract
performance. Charles T. Parker Constr. Co. v. United States, 433 F.2d 771,
778 (Ct. Cl. 1970); Costello Indus., Inc., ASBCA No. 49125, 00-2 BCA
¶ 31,098 at 153,585. Here, the Navy relies on PWB’s consultant’s surveys
conducted after award arguing these reports show asbestos in the floor tile and
mastic (gov’t mot. at 23). PWB argues that even considering these reports,
there was no reason to suspect asbestos under the mop curb because the site
condition (mop curb) differed materially from the usual as it was constructed
unconventionally (sits on top of tile) (app. resp. at 4, 11; ex. 1, aff. of PWB
Pres. at ¶ 6). Accordingly, the Navy should not assume PWB is arguing that the
conditions it encountered only constituted a Type 1 differing site condition.
4
The Navy argues that we should not rely on the affidavit from PWB’s President
because it contains conclusory assertions with no citations to the record and no
explanation of the President’s personal knowledge on the matter (gov’t reply
at 2). The Board may look to the Federal Rule of Civil Procedure for guidance,
and in this context, we note that FED. R. CIV. P. 56(c)(4) provides that an
affidavit or declaration used in support of a motion must be made on personal
knowledge, set out facts admissible in evidence, and show that the affiant or
declarant is competent to testify on the matter. Here, the record shows that
PWB’s President emailed the government several times regarding this issue
during performance of the task order. In addition, the affidavit, when read in
conjunction with PWB’s brief, responds directly to the Navy’s statement of
facts which cite to the record.
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of the asbestos containing flooring until the corridor walls were cut to install doors (app.
resp. at 4-5, 11-12; ex. 1, aff. of PWB Pres. ¶¶ 6, 8).
There are material facts in dispute as to whether ACM under the mob curb was
foreseeable based on the information available to PWB at the time it submitted its
offer on the task order. In this regard, RFI 20 stated that “[m]ost of the vinyl floor tile
has been replaced recently enough that it should not contain asbestos, but there may be
traces of old asbestos mastic remaining underneath” and that “there may be small
amounts of the original asbestos tiles under the wall framing where interior walls are
being demolished.” (R4, tab 6 at 149) Further, PWB’s request for a design change
stated that asbestos floor products could conclusively be presumed present in all
corridors and offices (gov’t mot. at 23 (citing gov’t ex. 3 at 1)). These documents do
not specifically state that ACM could be found under the mop curbs of the corridor
walls. Therefore, based on the record to date, it is unclear whether asbestos under the
mob curb was foreseeable.
Deviation from Design
The Navy also argues it was PWB’s decision to deviate from its design and
remove and replace the corridor walls (and therefore abate the asbestos) despite the
“government’s clear rejection of this proposed change” (gov’t mot. at 24). The Navy
argues that neither of PWB’s consultants specifically recommended removal of the
walls (id. at 24-25).
PWB argues that it was required to abate the asbestos so as not to expose its
employees to a hazardous workplace (app. resp. at 12-13). PWB contends the ACM
under the concrete mop curb could have become friable if disturbed during
construction and therefore removal and replacement of the corridor walls was required
to remove the ACM (app. resp. at 4-5; ex. 1, aff. of PWB Pres. ¶¶ 14, 18). PWB
argues it hired the second consultant to see if it could encapsulate the tile and asbestos
to avoid removing it at the mop curb but since encapsulation required all 6 sides be
encapsulated (top, bottom and four sides), the only solution was abatement (app. resp.
at 5; ex. 1, aff. of PWB Pres. ¶ 14). According to PWB, the whole corridor wall had to
be removed to abate the asbestos under the mob curb (app. resp. at ex. 1, aff. of PWB
Pres. ¶ 13).
We conclude that again there are material facts in dispute. For example, there
is a dispute as to whether for the health and safety of the workers and others PWB was
required to abate the ACM and remove the corridor walls because it could become
friable during construction activities. In this regard, the government’s own program
manager noted that if disturbed, the asbestos becomes friable and a concern and that it
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was much safer to abate the asbestos than trying not to disturb it and spot fix the
problem (gov’t ex. 8 at 2).
Spearin Doctrine Applicability
In its complaint, PWB argues that the specifications were defective for failing
to include the asbestos threat in the corridor walls (compl. at 4). The Navy argues that
the Spearin doctrine does not apply to this claim issue (gov’t mot. at 25-26).
According to this doctrine, “if the contractor is bound to build according to plans and
specifications prepared by the owner, the contractor will not be responsible for the
consequences of defects in the plans and specifications.” United States v. Spearin, 248
U.S. 132, 136 (1918). The implied warranty that the government’s specifications are
free from design defects attaches only to design specifications. White v. Edsall Constr.
Co., 296 F.3d 1081, 1084 (Fed. Cir. 2002).
The Navy contends that PWB relies on Amendment 01 to the RFP
(incorporated by reference into the task order) as the misleading specification, but that
amendment is not a design specification in which an implied warranty would apply
(gov’t mot. at 25). In response, PWB contends that when the contracting officer
directed PWB and its employees return and perform the work described in the task
order, without removing the walls which PWB had determined created a hazardous
situation, the government decided the means and method by which PWB would
perform the work and to its design (app. resp. at 13). PWB, however, did not comply
with the government’s direction.
It is important to note that the implied warranty that the government’s
specifications are free from defects only applies to contractors that comply with the
plans and specifications. Al Johnson Constr. Co. v. United States, 854 F.2d 467, 469
(Fed. Cir. 1988). In other words, the burden is on PWB to prove that it complied
substantially with the plans and specifications and that despite compliance, defective
work resulted. Maecon, Inc., ASBCA No. 31081, 89-2 BCA ¶ 21,855 at 109,945.
Here, PWB has not argued that Amendment 01 and RFI 20 were defective
specifications but instead that the government’s direction to retain the corridor walls
was the defective specification. Even assuming that the Spearin doctrine applies to a
contracting officer’s direction as PWB contends (which we do not decide here), we
would rule against PWB: as PWB did not comply with the government’s direction,
the Spearin doctrine cannot apply and we grant the government’s motion regarding
PWB’s claim that the specifications were defective. Although we agree with the
government on this point, we note that PWB has other bases for its working general
conditions claim.
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Standby Claim
Finally, the Navy has moved for summary judgment on the claim for standby
costs arguing that PWB cannot prove entitlement for more than the 95 days of
compensable delay already granted (gov’t mot. at 19-20). “To prove [entitlement for
a] compensable delay, appellant must show that the government was responsible for
specific delays; overall project completion was delayed as a result; and any
government-caused delays were not concurrent with delays within appellant’s
control.” Versar, Inc., ASBCA No. 56857 et al., 12-1 BCA ¶ 35,025 at 172,128.
The Navy argues the government was not solely responsible for the specific
delays and relies on PWB’s March 31, 2016 time impact analysis in which PWB
allegedly reveals there were sources of delay occurring during the design period (gov’t
mot. at 20-21). The Navy contends PWB never presented any alleged government
causes of delay during the design period in its claim as excusable bases for time
extensions and, in addition, PWB never presented any analysis in its claim or its
responses to the Navy’s discovery requests that evidences a clear apportionment of
delay to each party (id. at 21). In sum, the government argues “there is no genuine
issue of material fact that Appellant would not have completed the project by the [task
order] completion date of August 8, 2016 when it submitted its design change request
to remove and replace the corridor walls.” (Id. at 21). In its reply brief, the Navy also
asserts that PWB cites nothing to support an assumption that the contracting officer
was going to issue the corridor wall modification and that PWB concedes the task
order would not have met the stated completion date (gov’t reply at 4-5).
In response, PWB states that the referenced time impact analysis does not show
that PWB was 102 behind but instead shows that PWB was to re-sequence work to
reduce the delay to 37 days (app. resp. at 2, 10). According to PWB, the 37-day delay
was to have been added to the proposed corridor wall modification and had the
modification been issued, there would have been no delay (app. resp. at 10). PWB
therefore contends the government’s response time of six months regarding the
asbestos found under the corridor walls and mop curbs caused the delay (app. resp.
at 10; ex. 1, aff. of PWB Pres. ¶¶ 16-17). PWB contends the government led it to
believe, from March 2016 through September 2016, that it would be given a change
order for the demolition and abatement of the corridor walls which would include
compensable time and costs (app. resp. at 10; ex. 1, aff. of PWB Pres. ¶ 17). PWB
relies on the April 4, 2016 email where the Navy construction manager told PWB to
submit a FRAGNET for the “asbestos unforeseen” to try and include it in a
modification (app. resp. at 10; R4, tab 63.2 at 2534).
At first blush it appears the 37 days of delay do not relate to the ACM under the
mop curb. However, we note that PWB submitted a cost proposal to demolish and
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replace the corridor walls and the next day submitted a revised time impact analysis
seeking a 37-day extension of the task order completion date. In its reply brief, the
Navy asserts that the 37 days of delay were due to work performed pursuant to
Modification Nos. 03 and 04. The Navy also briefly asserts for the first time that these
bilateral modifications “contain [an] accord and satisfaction and release language for
future claims of delays contemplated by the [time impact analysis].” (Gov’t reply
at 5-6)
The Navy’s assertions are not grounds for summary judgment. In this regard,
the matter was insufficiently briefed and there are disputed facts concerning the time
impact analysis. Specifically, there is little in the record explaining this time impact
analysis, the number of days of delay, and whether any government-caused delays
were concurrent with delays within PWB’s control.
CONCLUSION
For the foregoing reasons, we deny the government’s motion for summary
judgment in part and grant it in part. Specifically, we grant the government’s motion
for summary judgment only on the matter regarding PWB’s claim for defective
specifications. The remainder is denied.
Dated: February 13, 2024
LAURA EYESTER
Administrative Judge
Armed Services Board
of Contract Appeals
I concur I concur
OWEN C. WILSON J. REID PROUTY
Administrative Judge Administrative Judge
Acting Chairman Vice Chairman
Armed Services Board Armed Services Board
of Contract Appeals of Contract Appeals
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DOCUMENT FOR PUBLIC RELEASE
The decision issued on the date below is subject to an ASBCA Protective Order.
This version has been approved for public release.
I certify that the foregoing is a true copy of the Opinion and Decision of the
Armed Services Board of Contract Appeals in ASBCA No. 62627, Appeal of Patricia
I. Romero, Inc. dba Pacific West Builders, rendered in conformance with the Board’s
Charter.
Dated: February 13, 2024
PAULLA K. GATES-LEWIS
Recorder, Armed Services
Board of Contract Appeals
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